NOT FOR PUBLICATION

Argued and Submitted September 19, 2022 Pasadena, California

Appeal from the United States District Court No. 8:19-cv-00315-JLS-JDE for the Central District of California Josephine L. Staton, District Judge, Presiding

Before: BOGGS, ^[**] WARDLAW, and IKUTA, Circuit Judges. Dissent by Judge IKUTA.

MEMORANDUM ^[*]

Defendant Officers Kenneth Edgar and Ricky Reynoso (collectively, "Officers") appeal the district court's order denying summary judgment on qualified immunity grounds. Plaintiff Teresa Perkins brought a wrongful death action individually and as a successor-in-interest to her son Justin Perkins, (collectively, "Perkins"), against the Officers pursuant to 42 U.S.C. § 1983 alleging claims for excessive force, denial of medical care, and interference with familial relations. The district court found that the Officers were not entitled to qualified immunity for all three of these claims.

1. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, and reverse in part. While a district court's decision to deny summary judgment is normally not appealable, "under the collateral order doctrine we have jurisdiction over the interlocutory appeal of a denial of qualified immunity 'to the extent that it turns on an issue of law.'" Villanueva v. California, 986 F.3d 1158, 1164-65 (9th Cir. 2021) (citing Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)). "On interlocutory appeal, we review de novo the district court's denial of qualified immunity and view the facts in the light most favorable to . . . the nonmovants." Est. of Aguirre v. County of Riverside, 29 F.4th 624, 627 (9th Cir. 2022).

2. The district court did not err when it concluded that Officers Edgar and Reynoso were not entitled to qualified immunity as to Perkins's excessive force claim under the Fourth Amendment. "[O]fficers are entitled to qualified immunity under § 1983 unless (1) they violate[] a federal statutory or constitutional right, and (2) the unlawfulness of their conduct [is] 'clearly established at the time.'" D.C. v. Wesby, 138 S.Ct. 577, 589 (2018) (citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). "To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent," meaning "it is dictated by 'controlling authority' or 'a robust consensus of cases of persuasive authority.'" Wesby, 138 S.Ct. at 589-90 (citing Ashcroft v. al-Kidd, 563 U.S. 731, 740-42 (2011)).

The Officers' conduct violated law clearly established in Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003), in which "two officers continued to press their weight on [the plaintiff's] neck and torso as he lay handcuffed on the ground." Id. at 1056. Here, the district court reasoned that "at the time of the incident, reasonable officers would have been aware that applying force against a restrained detainee who is potentially in medical distress violated the rule established in Drummond and its progeny."

We agree. Drummond's holding that "compression asphyxia" can be caused when "prone and handcuffed individuals in an agitated state have suffocated under the weight of restraining officers" should have put the Officers on notice that their conduct violated clearly established law when they placed their bodyweight, including Officer Reynoso's right knee, onto Perkins's back and neck area while Perkins lay handcuffed on his stomach. Drummond, 343 F.3d at 1056-57. The fact that Perkins did not plead for air is not dispositive here, as the Officers argue, because Perkins's body language and other facts surrounding the incident, taken in the light most favorable to the plaintiffs, including that Perkins was bleeding and handcuffed, had labored breathing, and had been mostly unresponsive to the Officers' questions, should have put the Officers on notice that he was having trouble breathing. Contrary to the dissent's suggestion, these circumstances parallel Drummond because they put the Officers on notice that Perkins was struggling to breathe, even absent verbal communication. The dissent's point that Perkins must have pleaded for air to have put the Officers on notice that he could not breathe is simply illogical, especially if, taking the facts in the light most favorable to the plaintiffs, Perkins was already unresponsive at this stage.

3. The district court erred when it concluded that the Officers were not entitled to qualified immunity on Perkins's denial of medical care claim under the Fourteenth Amendment. The Fourteenth Amendment protects individuals against government officials' conduct that "places [them] in peril in deliberate indifference to their safety" and "medical needs." Penilla ex rel. Penilla v. City of Huntington

Park, 115 F.3d 707, 709 (9th Cir. 1997). As a general rule, we have held that "[d]ue process requires that police officers seek the necessary medical attention for a detainee when he or she has been injured while being apprehended by either promptly summoning the necessary medical help or by taking the injured detainee to a hospital." Maddox v. City of Los Angeles, 792 F.2d 1408, 1415 (9th Cir. 1986). While the Officers' failure to direct the paramedics on the scene to attend to Perkins when he was in obvious need of medical care violated this general rule, we have not previously held that, in these narrow circumstances where there are multiple individuals on the scene who are in need of medical assistance and to whom the paramedics were attending, the Officers' failure to call them over to examine Perkins violates clearly established law. And the Supreme Court has emphasized that the clearly established "inquiry must be undertaken in light of the case's specific context, not as a broad general proposition." Saucier v. Katz, 533 U.S. 194, 194 (2001). Here, the Officers' conduct did not violate a clearly established right to medical care, and the Officers are entitled to qualified immunity.

4. Because the same standard that applies to a denial of medical care claim also applies to a loss of familial relations claim under the Fourteenth Amendment, the district court similarly erred in finding that the right to familial relations was clearly established here. There is a substantive due process right to familial relationships that can be violated when Officers' actions "shock the conscience," when they act with deliberate indifference or a "purpose to harm." See Lam v. City of Los Banos, 976 F.3d 986, 1003 (9th Cir. 2020) (internal citations omitted).

Recently, in Ochoa v. City of Mesa, 26 F.4th 1050 (9th Cir. 2022), we reaffirmed that an individual can assert a "Fourteenth Amendment claim for loss of companionship and familial association" in a police excessive force case. Id. at 1056. But because there is no sufficiently analogous precedent for the loss of familial relations claim here, the Officers' conduct did not violate Teresa Perkins's right to familial relations.

According, we AFFIRM the district court's denial of summary judgment for Perkins' excessive force claim. We REVERSE the district court's denial of summary judgment for Perkins' denial of medical care and loss of familial relations claims, and hold that the Officers are entitled to qualified immunity for these claims. Each party shall bear its own costs.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

FILED Teresa Perkins et al. v. Kenneth Edgar and Ricky Reynoso; No. 21-55552 OCT 25 2022 IKUTA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

"Use of excessive force is an area of the law in which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue." Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018) (per curiam) (citation and internal quotation marks omitted). Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052 (9th Cir. 2003), on which the majority relies, does not squarely govern the specific facts in this case, and therefore Drummond is insufficient to make it "sufficiently clear t[o] every reasonable official" that the force Officers Edgar and Reynoso used here was excessive. Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam). Because Drummond "did not give fair notice to" Edgar and Reynoso, Rivas-Villegas v. Cortesluna, 142 S.Ct. 4, 7 (2021) (per curiam), I would reverse the district court's denial of qualified immunity as to Perkins's excessive force claim.

Although the Supreme Court's "case law does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate." White v. Pauly, 137 S.Ct. 548, 551 (2017) (per curiam) (cleaned up); see also District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (describing this standard as "demanding"). "[S]pecificity is especially important in the Fourth Amendment context, where . . . it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts." Mullenix, 577 U.S. at 12 (cleaned up). Thus, "to show a violation of clearly established law, [Perkins] must identify a case that put [Edgar and Reynoso] on notice that [their] specific conduct was unlawful." Rivas-Villegas, 142 S.Ct. at 8.

Perkins has not done so. Neither Perkins nor the majority has "identified any Supreme Court case that addresses facts like the ones at issue here." Id. Instead, the majority relies solely on our precedent in Drummond. In that case, the arrestee, who was handcuffed and lying on the ground, see 343 F.3d at 1059, "repeatedly told the officers that he could not breathe and that they were choking him," id. at 1054-55. Despite the arrestee's repeated cries for air, "which should have alerted the officers to his serious respiratory distress," the "two officers, at least one of whom was substantially larger than [the arrestee] was, pressed their weight against his torso and neck, crushing him against the ground." Id. at 1059. In defining the contours of the clearly established right violated by the officers' conduct, we emphasized the arrestee's verbal entreaties for air. See id. ("The officers-indeed, any reasonable person-should have known that squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable.")

Here, by contrast, it is undisputed that Perkins neither pleaded for air nor communicated that he was struggling to breathe, let alone expressed that he was in "serious respiratory distress." Id. Nor do the plaintiffs allege that the officers placed their full weight on Perkins's back and neck, and the video evidence indicates they did not, see Scott v. Harris, 550 U.S. 372, 383-84 (2007). For these reasons, Drummond "is materially distinguishable and thus does not govern the facts of this case." Rivas-Villegas, 142 S.Ct. at 8.

Despite the different factual situation in Drummond, the majority asserts that the officers knew or should have known that Perkins was having trouble breathing as they applied the hobble restraint, based on various nonverbal clues. But Drummond did not hold, much less clearly establish, that officers violate the Fourth Amendment by failing to heed an arrestee's breathing or the coloring of his face; rather, Drummond held that "squeezing the breath" from a handcuffed arrestee "despite his pleas for air" constitutes excessive force. 343 F.3d at 1059. In extending Drummond beyond its facts, the majority disregards the Supreme Court's warning that precedent must "squarely govern[] the specific facts at issue" in order to "move a case beyond the otherwise hazy borders between excessive and acceptable force and thereby provide an officer notice that a specific use of force is unlawful." Kisela, 138 S.Ct. at 1153 (citation and internal quotation marks omitted).

Because neither Drummond nor any Supreme Court decision is sufficiently similar to the facts of this case, Edgar and Reynoso are entitled to qualified immunity. I respectfully dissent.

^[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

^[**] The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.