Government Liability Update

Officers Who Allegedly Chased Suspect with Intent to Make Him Crash, then Failed to Assist Injured Bystanders, Not Entitled to Qualified Immunity at Pleading Stage

In Estate v. Soakai v. Abdelaziz, published May 16, 2025, a divided panel of the 9th Circuit Court of Appeals affirmed denial of the police officer defendants' motion to dismiss the action at the pleading stage based on qualified immunity.  According to the complaint's allegations, the defendant officers spotted a person they believed had participated in an illegal car rally.  Against department policy, the officers began pursuing the suspect, through busy city streets, at speeds exceeding 60 mph.  The defendants did not turn on their lights or siren, or report the chase to the dispatcher.  They were allegedly intent on making the suspect crash.  The suspect's car crashed into an area near a taco truck.  The plaintiff's decedent was struck and died of his injuries in front of his plaintiff mother, who suffered a broken back in the crash.  Other plaintiffs in the group suffered severe injuries.  The defendant officers allegedly did not stop, but drove past the scene of the accident, still with lights and siren off, and did not return until they heard other officers approaching the crash scene.  When they returned, the officers pretended not to have been at the scene previously.  The officers were allegedly overheard at the scene saying that they were satisfied that the suspect appeared injured, and hoped he died of his injuries.  The officers filed an interlocutory appeal from denial of their motion to dismiss.

The panel majority affirmed.  The plaintiffs' claim that the officers violated their constitutional rights by conducting the high-speed chase was a claim for violation of the substantive due process clause of the 14th Amendment.  To state a claim, they had to allege facts showing that the high-speed chase was for the purpose of harming a fleeing suspect and was unrelated to any legitimate law enforcement purpose.  The majority held that the facts alleged stated such a claim, and that the intent to injure did not have to be directed toward the injured bystanders for them to be able to state a claim.  The majority further held that existing precedent clearly established that bystanders were foreseeable victims of high-speed chases intended only to injure the suspect, and so the officers were not entitled to qualified immunity.  The alternative substantive due process claim was a state-created danger claim arising out of failing to summon or render emergency services after the crash.  Even if the officers had not intended to harm a person, the facts alleged showed that they placed the plaintiffs in a worse position than they would have occupied if the defendants had not acted at all; they created or exposed the plaintiffs to a particularized danger; and the danger resulted in a foreseeable harm to the plaintiffs.  Although the danger from the car chase itself was not particularized to the plaintiffs, the harm from the officers allegedly delaying medical treatment by driving past, doubling back only when other officers approached, and then pretending they were arriving for the first time was particularized to the plaintiffs.  They also showed deliberate indifference by their actions.  Although no controlling case applied the state-created danger to bystanders injured after a high-speed chase, existing precedent concerning state-created dangers and impeding medical care placed the constitutional violation beyond debate.

The dissenting judge opined that the majority had expanded the two theories of violation of substantive due process beyond existing precedent, and that the officers should therefore be entitled to qualified immunity.

Reasonableness of Police Use of Force Determined under Totality of Circumstances, Not Just Events at Moment of Risk

In Barnes v. Felix, published May 15, 2025, the United States Supreme Court reversed summary judgment granted to the defendant police officer in a 42 U.S.C. section 1983 case.  The defendant officer pulled a suspect's car over for outstanding toll violations.  During the stop, the suspect stated he did not have his license with him, and that the car was a rental in his girlfriend's name.  The suspect rummaged through papers in the car, despite orders to stop doing so.  The officer commented he smelled marijuana.  The suspect said he had identification in his truck.  The officer told the suspect to open the trunk from his seat.  He did so, and turned off his ignition.  The officer ordered the suspect out of the car.  Instead, the suspect started the car again.  The officer unholstered his gun.  As the car moved forward, the officer jumped onto the car's doorsill.  He twice ordered the suspect not to move.  WIth no visibility into the car, he fired two shots inside.  The suspect was killed. Between the car starting and when iit stopped, five seconds passed.  Two seconds passed between the officer jumping on the windowsill and the first shot. The decedent's mother alleged the officer violated the 4th Amendment by using excessive force.  The district court granted the officer summary judgment, and the 5th Circuit Court of Appeals affirmed, by applying the 5th Circuit's approach of analyzing officers' use of lethal force:  looking only at the situation existing "at the moment of threat" that sparked the fatal shooting.  That moment was two seconds before the first shot.  Since the officer was on the windowsill of a moving vehicle, the threat to the officer at that point justified use of deadly force.  Any prior events leading up to the shooting were irrelevant.

The Supreme Court unanimously rejected the "at the moment of threat" approach.  The touchstone of whether use of force violated the 4th Amendment is whether the use was reasonable.  Whether police force was reasonable requires analyzing the totality of circumstances.  Determining reasonableness demands careful attention to the facts and circumstances relating to the incident, as then known to the officer.  The totality of the circumstances inquiry into a use of force has no time limit.  While the situation at the precise time of the shooting will often be what matters most, earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones.  Considering prior events may benefit either party in an excessive-force case.  The moment-of-threat rule conflicts with the instruction to consider the totality of circumstances.  The court must look at any relevant event coming before the moment of risk.  The Supreme Court remanded the matter to the lower court to apply the proper standard.  

A concurring opinion by one justice, joined by three others, asserted that when analyzing the reasonableness of an officer's conduct at a traffic stop, particularly where the driver has suddenly pulled away, courts must appreciate the dangers and risks officers and the community at large face.

Deputy Acted Reasonably as a Matter of Law in Advancing Toward Woman with Knife, and Tasing Her When She Advanced on Him

In County of Nevada v. Superior Court (A.C.), published May 12, 2025, the Third District Court of Appeal issued a writ directing the trial court to grant summary judgment to a sheriff's deputy defendant and his agency.  Multiple individuals called 911 about an erratically-acting woman walking along a street with two small children. The defendant sheriff's deputies were dispatched to the area to perform a welfare check on the woman and children.  The first deputy pulled up behind the woman and attempted to speak with her.  She did not respond.  The second deputy then arrived.  He understood he was to provide backup.  The woman turned to the deputies, unsheathed a knife, and accused the officers of hurting her "babies."  The first deputy drew his gun and pointed it at the ground in front of him.  The second drew a taser.  The first officer tried to talk the woman down.  She continued complaining about her babies being threatened, and advanced toward the first deputy.  He backed up to give her space.  The woman alternated her focus betwen the two deputies. As one child repeatedly approached the first deputy, the woman took several quick steps toward the first deputy, who continued backing up.  The second deputy lost sight of the first deputy around a patrol car, and so came around the front of the car with his taser and followed the woman.  The woman suddenly turned and quickly advanced toward the second deputy while raising her knife.  The second deputy discharged the taser.  The woman continued to chase the second deputy into the street.  The first deputy followed and shot the woman in the back.  The woman passed away.  These events occurred in less than two minutes. The events were captured on the deputies' bodycams.  The children sued the deputies and the county that employed them for negligence, wrongful death, and negligent infliction of emotional distress.  They asserted a separate cause of action against the second deputy, who used the taser, under the Bane Act.  The trial court granted summary judgment to the deputy who shot the woman, concluding he acted reasonably as a matter of law throughout the encounter and did not unreasonably use deadly force.  It denied the motion as to the deputy who tased the woman, concluding that a reasonable juror could find he acted unreasonably by closing the distance between himself and the woman and by using his taser, and that he had acted with reckless disregard to her constitutional rights.  The court denied the county's motion for summary judgment to the extent it could be held vicariously liable for the tasing deputy's conduct.

The appellate court ruled that as a matter of law the tasing deputy and the county were entitled to summary judgment, because as a matter of law the deputy acted reasonably under the circumstances.  All of the causes of action turned on the allegation that the deputies' use of force against the woman was unreasonable.  The plaintiffs did not dispute that the deputy using lethal force was entitled to summary judgment, and the appellate court agreed he acted reasonably as a matter of law.  The plaintiffs contended that the tasing deputy's conduct was unreasonable, and created the need for the other deputy to use deadly force.  There was no triable issue of material fact on whether the tasing deputy acted reasonably in closing the distance between himself and the woman.  Applying the perspective of a reasonable officer on the scene, no reasonable juror could conclude the deputy's movement to maintain line of sight with the other deputy, as the woman advanced on him with a deadly weapon, was unreasonable.  There was no triable issue as to whether the woman would be perceived as an immediate threat as she advanced toward one deputy with the knife, then suddenly turned and quickly advance toward the other while raising her weapon.  There was no triable issue that it was not feasible for the deputy to warn the woman in the instant she turned and advanced before the deputy deployed the taser.  No reasonable juror could conclude that firing the less-lethal taser under the circumstances was unreasonable.  There is no material disputed fact on whether the deputy followed his training regarding welfare checks and contacting individuals with mental illness.  A general order governing officer conduct in specific situations does not establish the standard of care for the use of force.  Instead, the standard is whether the use is reasonable under the totality of circumstances.  Even if the deputies' training required better or more reasonable actions, as long as the deputies' actions were within the range of what was reasonable under the circumstances, they need not have chosen the "most reasonable" action.  Both the tasing deputy and the county were entitled to summary judgment.

In Positional Asphyxiation Case, Jury Verdict That Officers Did Not Use Excessive Force Could Be Reconciled with Verdict That Officers Were Negligent under California Law

In Alves v. County of Riverside, published April 29, 2025, the 9th Circuit Court of Appeal affirmed a district court's decision declining to grant a renewed motion for judgment as a matter of law after a jury trial.  The defendant deputies encountered a bleeding man speaking incoherently and engaged in unusual behavior.  The deputies believed the man was under the influence of a controlled substance or experiencing a mental health crisis.  As the deputies approached the man, he stood up and advanced toward them.  The deputies repeatedly tased the man as he advanced twice toward the deputies.  The deputies struggled to handcuff the man as he lay face down.  One deputy placed a knee on the man's back.  The man rolled to his side, and the deputies continued pinning him down.  The man became silent and stopped breathing.  The deputies rolled the man on his back.  Paramedics arrived and transported the man to the hospital, where he died.  The decedent's successor-in-interest sued the county and deputies under 42 U.S.C. section 1983 for excessive force and deliberate indifference to medical needs, and under California law for violation of the Bane Act, negligence, and battery.  The claims for excessive force, battery, and negligence were tried to a jury.  The jury found unanimously for the defendants on the 4th Amendment excessive force and state law battery claims, but found unanimously for plaintiff on her state law negligence claim.  It apportioned 20% fault to the deputies and 80% to the decedent.  The defendants moved for judgment as a matter of law on the ground that the verdicts were inconsistent.  The district court ruled the verdicts could be reconciled.

The 9th Circuit agreed.  Courts must search for a reasonable way to read verdicts as expressing a coherent view of the case, and determine whether it is possible to reconcile the verdicts on any reasonable theory consistent with the evidence.  Here, the jury's finding that the officers did not use excessive force may be reconciled with the finding that the deputies were negligent.  4th Amendment jurisprudence and California negligence law are two distinct legal frameworks.  Both bodies of law focus on whether an officer's use of deadly force has been reasonable under a totality of the circumstances.  But based on the California Supreme Court's decision in Hayes v. County of San Diego, the 4th Amendment's reasonableness standard is not the same as the standard of reasonable care under tort law, and negligent acts do not incur constitutional liability.  State negligence law, which considers the totality of circumstances surrounding use of deadly force, is broader than 4th Amendment law, which tends to focus more narrowly on the moment when force is used.  Since Hayes was decided, the 9th Circuit has repeatedly held that California negligence law is broader than federal 4th Amendment law.  The 9th Circuit rejected the contention that Hayes applies only to whether tactical conduct and decisions before use of lethal force is used are considered.  Here, for the 4th Amendment claim, the jury was instructed to consider whether the deputies' use of force and restraint was objectively reasonable under the totality of the circumstances, based on the Graham v. Connor factors.  For the negligence claim, the jury was asked whether the deputies were negligent in using unreasonable force or restrain, based on a totality of circumstances that included all facts known to the deputies at the time, including their conduct leading up to the use of force or restraint.  From the expert evidence provided, the jurors could have reasonably determined the deputies owed the decedent a duty of care after restraining him in handcuffs and breached the duty by failing to place him in a recovery position, failing to check whether he was breathing and had a pulse, or applying pressure on his back when it was no longer necessary, even though they concluded the deputies did not use excessive force.

The Hot Pursuit Exception Permitted Officers Chasing Suspect Fleeing Traffic Stop to Enter Home without Warrant

In Newman v. Underhill, published April 23, 2025, the 9th Circuit Court of Appeals affirmed summary judgment for the defendant deputies.  A suspect in a truck failed to stop for one of the defendant deputy's traffic stop.  This was a felony.  The deputy chased the suspect's truck.  The truck stopped near the plaintiff's home.  The suspect exited the truck and fled. The deputy followed on foot.  He lost track of the suspect near the rear of the plaintiff's house.  The deputy waited for backup.  A second defendant deputy arrived two minutes later.  The deputies searched the house's backyard while deputies in a helicopter searched the house for heat signatures.  The deputies saw no indication that the suspect had left the backyard.  The helicopter found heat coming from the house but did not know what was emitting it.  The deputies discovered the back door of the house slightly ajar.  Seven minutes after the suspect fled, the deputies began announcing their presence and ordering anyone inside to exit.  They did so for two minutes.  They heard a voice inside.  A third defendant deputy arrived.  The three entered the house.  They encountered and argued with the plaintiff, a quadriplegic in a wheelchair.  The plaintiff told the deputies that his roommate drove a truck the make and model of the suspect's truck.  After a few minutes of discussion, the plaintiff gave the deputies permission to search another room of the house.  The suspect, the plaintiff's roommate, was hiding there.  The plaintiff sued the officers for an unreasonable search in violation of the 4th Amendment.  The district court granted the officers summary judgment.

The 9th Circuit found that the officers did not violate the plaintiff's 4th Amendment rights.  Under the hot pursuit doctrine, the hot pursuit of a fleeing suspect can make a warrantless search of a residence objectively reasonable.  The doctrine requires probable cause to search the home and pursuit of a fleeing suspect.  Here, there was probable cause.  The facts and circumstances before the officers were sufficient to warrant a person of reasonable caution to believe that the suspect would be found in the house.  The doctrine also requires that the officers were in immediate and continuous pursuit of a suspect from the scene of the crime at the moment they made entry.  Other relevant considerations include the gravity of the underlying offense for which the arrest is being made, and whether the officers encroached on the property of a person who did not create the exigent circumstances and was completely unrelated to the suspect and his crimes.  Here, the suspect was suspected of committing a felony.  The immediacy requirement was met because the first deputy immediately pursued the suspect when he fled.  The continuity requirement was met because only nine minutes passed between the first deputy losing track of the suspect and the entry; and because during that time interval the deputy was actively working to find and apprehend the suspect.

Officers Did Not Discriminate against Deaf DUI Suspect by Not Providing Her with Sign Language Interpreter

In Mayfield v. City of Mesa, published March 24, 2025, the 9th Circuit Court of Appeals affirmed the dismissal of a lawsuit under Title 11 of the American with Disabilities Act and the Rehabilitation Act.  While the plaintiff, who is deaf, was driving home at night, a police officer observed her weaving in traffic and pulled her over.  During the traffic stop, she requested an American Sign Language interpreter.  Based on the footage from officer body cams, the officer and another officer communicated with the plaintiff using a combination of notes typed on cellphones, notes on a notepad, lip reading, and gestures.  The plaintiff was given and able to complete sobriety tests, but did not pass those tests.  She was taken to a DUI facility for a blood test.  She requested an American Sign Language interpreter but was told that none was available.  The plaintiff was charged with driving under the influence, but these charges were dropped when the plaintiff pleaded guilty to reckless driving.  The plaintiff sued the city, alleging the officers discriminated against her by failing to provide a reasonable accommodation for her disability by providing either an in-person ASL interpreter or a video remote interpreting service after she was pulled over.  The district court granted a motion to dismiss the lawsuit, ruling that the plaintiff's claims were barred by Heck v. Humphrey and that alternatively plaintiff failed to state a claim under the ADA or RA.

The 9th Circuit disagreed about Heck v. Humphrey.  Heck, which applies to ADA/RA claims, a plaintiff's civil claims challenging government conduct in connection with arrest and prosecution may not proceed if a judgment in her favor would necessarily imply the invalidity of her conviction or sentence.  Here, a judgment in plaintiff's favor on whether the officers accommodated her in testing for a DUI would not invalidate her conviction for reckless driving, which was based on the plaintiff weaving in traffic before the traffic stop.  But the 9th Circuit agreed that the plaintiff failed to state a claim for failure to accommodate.  A claim under Title II of the ADA may arise where police fail to reasonably accommodate a plaintiff's disability in the course of investigation or arrest, causing the plaintiff to suffer greater injury or indignity in the process than other arrestees.  There is no per se obligation to provide an on-site interpreter for a deaf person every time one is requested.  The test is whether the person has received an auxiliary aid sufficient to prevent any real hindrance in her ability to exchange information.  In the context of arrests, the court must also consider whether any exigent circumstances would render a proposed accommodation impracticable.  Here, the body cam footage establishes that the plaintiff's understanding of the initial officer's instructions was sufficient to enable her to provide the information requested and complete the field sobriety tests, and thus communicate with each other in all material aspects.  Likewise, in the DUI processing facility, the plaintiff was able to effectively communicate in all material aspects.  Traffic stops, particularly for suspected DUIs, present exigent circumstances that limit the range of what would constitute a reasonable modification of police procedures.  The safety concerns of a roadside traffic stop, the need to promptly determine a motorist's ability to drive, and the need to collect accurate test results before evidence dissipates all warrant acting without unnecessary delay.  Because the bodycam footage would preclude the plaintiff from amending her complaint to overcome such evidence, the court properly dismissed the complaint without leave to amend.

Officers Did Not Discriminate against Deaf DUI Suspect by Not Providing Her with Sign Language Interpreter

In Mayfield v. City of Mesa, published March 24, 2025, the 9th Circuit Court of Appeals affirmed the dismissal of a lawsuit under Title 11 of the American with Disabilities Act and the Rehabilitation Act.  While the plaintiff, who is deaf, was driving home at night, a police officer observed her weaving in traffic and pulled her over.  During the traffic stop, she requested an American Sign Language interpreter.  Based on the footage from officer body cams, the officer and another officer communicated with the plaintiff using a combination of notes typed on cellphones, notes on a notepad, lip reading, and gestures.  The plaintiff was given and able to complete sobriety tests, but did not pass those tests.  She was taken to a DUI facility for a blood test.  She requested an American Sign Language interpreter but was told that none was available.  The plaintiff was charged with driving under the influence, but these charges were dropped when the plaintiff pleaded guilty to reckless driving.  The plaintiff sued the city, alleging the officers discriminated against her by failing to provide a reasonable accommodation for her disability by providing either an in-person ASL interpreter or a video remote interpreting service after she was pulled over.  The district court granted a motion to dismiss the lawsuit, ruling that the plaintiff's claims were barred by Heck v. Humphrey and that alternatively plaintiff failed to state a claim under the ADA or RA.

The 9th Circuit disagreed about Heck v. Humphrey.  Heck, which applies to ADA/RA claims, a plaintiff's civil claims challenging government conduct in connection with arrest and prosecution may not proceed if a judgment in her favor would necessarily imply the invalidity of her conviction or sentence.  Here, a judgment in plaintiff's favor on whether the officers accommodated her in testing for a DUI would not invalidate her conviction for reckless driving, which was based on the plaintiff weaving in traffic before the traffic stop.  But the 9th Circuit agreed that the plaintiff failed to state a claim for failure to accommodate.  A claim under Title II of the ADA may arise where police fail to reasonably accommodate a plaintiff's disability in the course of investigation or arrest, causing the plaintiff to suffer greater injury or indignity in the process than other arrestees.  There is no per se obligation to provide an on-site interpreter for a deaf person every time one is requested.  The test is whether the person has received an auxiliary aid sufficient to prevent any real hindrance in her ability to exchange information.  In the context of arrests, the court must also consider whether any exigent circumstances would render a proposed accommodation impracticable.  Here, the body cam footage establishes that the plaintiff's understanding of the initial officer's instructions was sufficient to enable her to provide the information requested and complete the field sobriety tests, and thus communicate with each other in all material aspects.  Likewise, in the DUI processing facility, the plaintiff was able to effectively communicate in all material aspects.  Traffic stops, particularly for suspected DUIs, present exigent circumstances that limit the range of what would constitute a reasonable modification of police procedures.  The safety concerns of a roadside traffic stop, the need to promptly determine a motorist's ability to drive, and the need to collect accurate test results before evidence dissipates all warrant acting without unnecessary delay.  Because the bodycam footage would preclude the plaintiff from amending her complaint to overcome such evidence, the court properly dismissed the complaint without leave to amend.

Prison Guards' Alleged Retaliation against Inmate for Complaining about another Prisoner Did Not Violate Clearly-Established Law

In Bird v. Dizurenda, published March 13, 2025, the 9th Circuit Court of Appeals reversed the district court's denial of summary judgment to defendant prison guards based on qualified immunity.  The plaintiff inmate approached the officer in charge of his cell unit and requested that he be moved from his cell at once because of issues with his current cellmate that, he said, if left unaddressed, would lead to a fight.  In response, the officer called for assistance, and two more guards appeared.  The plaintiff explained the situation to them, and one guard allegedly said, "Fight him or fight me."  The guards instructed the plaintiff to gather his belongings in preparation for being moved.  As he did so, the guard he initially spoke to tried to close the cell door and announced over the in-cell speaker that the plaintiff was staying in that cell.  The plaintiff blocked the door's closing by pushing a plastic tub in the way, and responded that he was not.  Two of the guards then reentered the cell, ordered the plaintiff to push his property back into the cell, and directed him to a prison classroom.  The guards then allegedly "thrashed the cell" and confiscated items of the plaintiff's property, and did not issue him a form to appeal the confiscation of his property.  Guards later transferred the plaintiff to a new cell that day.  The prison denied the plaintiff's grievances.  He then filed a complaint against the guards and other prison administrators in federal court, alleging retaliation.  The district court denied the prison officials motion for summary judgment on the retaliation claim, holding they were not entitled to qualified immunity.

The 9th Circuit found qualified immunity.  In the prison context, prohibition against retaliatory punishment may violated clearly-established law, implicating the prisoner's 1st Amendment right to petition prison grievances and to seek redress for prison injustices, where a state actor took some adverse action against an inmate because of that inmate's protected conduct.  The plaintiff's request for a cell transfer based on concerns with his cellmate does not constitute "protected conduct" under clearly established law.  While retaliation for complaints against prison officials would be protected conduct, retaliation against a prisoner because of a complaint about another prisoner is a significant distinction from prior caselaw. 

Officer's Unreasonable Mistake as to Whether Arrestee Requires Medical Care Not Subject to Qualified Immunity

In D'Braunstein v. California Highway Patrol, published March 12, 2025, a divided panel of the 9th Circuit Court of Appeals reversed summary judgment for the defendant officer.  The officer arrived at the scene of a single-vehicle auto accident, in which the plaintiff crashed his car into a concrete wall along a freeway onramp.  The plaintiff was standing next to the car.  The plaintiff displayed symptoms of disorientation and poor balance.  He did not smell of alcohol, and passed a breathalyzer test, but could not perform field sobriety tests.  The officer decided the plaintiff was under the influence of drugs.  She arrested the plaintiff and took him to jail.  The jail nurse denied the plaintiff admission to the jail and directed he be taken to a hospital. The officer drove the plaintiff to a hospital, without using her siren or flashing lights.  The plaintiff arrived at the hospital over three and a half hours after the officer first encountered him.  The plaintiff was diagnosed with a stroke, and suffered incapacitating brain damage.  There was conflicting evidence of whether earlier treatment would have mitigated his stroke symptoms.  The plaintiff sued the officer, alleging deprivation of medical care.  The district court granted summary judgment, finding that the constitutional violation was not clearly established and the officer was entitled to qualified immunity.

The panel majority disagreed.  Under both the 4th Amendment, which applies to arrests, and the 14th Amendment, which applies to pretrial detainees, the question is whether the officer's provision or deprivation of medical care was objectively unreasonable.  Here, construing the facts in the light most favorable to the plaintiff, a reasonable jury could find that the officer's failure to summon prompt medical treatment for the plaintiff was objectively unreasonable, and that the officer acted with reckless disregard for the plaintiff's safety, given the serious nature of the accident and the plaintiff's symptoms.  The officer's subjective belief that the suspect was on drugs does not change matters, considering the plaintiff had emerged from a violent car crash and was exhibiting physical and cognitive abnormalities.  The majority further ruled that it is clearly established that officers must seek to provide an injured detainee or arrestee with objectively reasonable medical care in the face of medical necessity, and may not act with objective deliberate indifference to such a medical need.  Case law further established this duty is not limited to situations where the officer's conduct causes the injury warranting medical attention.  The majority rejected the argument that there was no case law that would have put the officer on notice in the specific circumstances she encountered of the duty to summon prompt medical care.  Although an officer may be entitled to qualified immunity for a reasonable mistake, if the law is otherwise clearly established, an officer is not entitled to qualified immunity for a mistake of fact or judgment that is itself unreasonable.  Although specificity is required to clearly establish the law, a past case dealing with strokes or auto accident victims is not necessary.

A dissenting judge opined that the officer was entitled to qualified immunity, because the existing law did not place beyond debate that the officer, who was not a medical professional, was violating the plaintiff's constitutional rights by perceiving he was under the influence of drugs rather than injured.

Pre-Verdict JMOL Motion Based on Argument of Reasonable Force Did Not Waive Post-Verdict JMOL Motion Arguing Qualified Immunity, Where Factual Arguments Were the Same and There Was Earlier MSJ on Qualified Immunity

In Estate of Najera-Aguirre v. City of Riverside, published March 11, 2025, the 9th Circuit affirmed a judgment against a police officer for use of excessive force entered after a jury trial, and the district court's denial of judgment as a matter of law.  The defendant police officer arrived at the scene after receiving a report of someone destroying property with a bat-like object.  The officer commanded the decedent to drop the bat he was holding.  The decedent refused and walked toward the officer.  When the decedent was 10-15 feet from the officer, the officer pepper-sprayed the decedent.  The pepper spray blew away, and was ineffective.  The decedent turned toward the officer, still holding the bat.  They stood face-to-face, still 10-15 feet apart.  Without giving a warning, the officer pointed his gun at the decedent and fired six shots in two volleys.  The decedent collapsed face down.  His body was approximately 10 feet from where the officer was standing.  An autopsy suggested the decedent was turned away, with his back to the officer when the fatal bullets hit.  The decedent's children sued the officer.  The district court denied summary judgment based on qualified immunity, which the 9th Circuit affirmed in a published decision.  A jury found for the plaintiffs and awarded $10 million in damages.  The court denied a pre-verdict motion for judgment as a matter of law based on lack of excessive force.  After judgment, the officer renewed his motion and added an argument he was entitled to qualified immunity.  The district court denied this motion.  The officer appealed that decision.

The 9th Circuit ruled that the officer had preserved his qualified immunity argument.  Although he did not raise qualified immunity in his pre-verdict motion, both were based on the same underlying factual arguments.  Further, he had previously raised the legal argument of whether he violated clearly-established law in his summary judgment motion.  The court then ruled that qualified immunity was properly denied.  Viewing the evidence in the light most favorable to the plaintiffs, and drawing all reasonable inferences in their favor, the officer used deadly force on a suspect who did not pose a threat.  That violated clearly-established law.