NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DANIEL BARRERA; et al., No. 22-15542
Plaintiffs-Appellees, D.C. No. 2:18-cv-00329-JAM-KJN v.
DAVID KRAUSE, Sergeant; et al., MEMORANDUM*
Defendants-Appellants,
and
CITY OF WOODLAND; DAN BELLINI, Former Police Chief,
Defendants.
Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding
Submitted February 15, 2023** San Francisco, California
Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Defendants Officer Richard Wright, Officer Parveen Lal, Officer Hannah
Gray, Sergeant Thomas Davis, and Sergeant David Krause (collectively
“Defendants”) appeal the district court’s order denying summary judgment on
qualified immunity grounds. Daniel Barrera, Christine Amaro, and two minors
(collectively the “Barrera family”) brought this wrongful death action pursuant to
42 U.S.C. § 1983 individually and as successors-in-interest to their son and father
Michael Barrera (“Barrera”), alleging claims of excessive force under the Fourth
Amendment and loss of familial relationships under the Fourteenth Amendment.
The district court denied the Defendants’ motion for summary judgment, finding
that there were “just far too many genuine issues of material fact for this Court to
grant summary judgment, even for the individuals.” We affirm in part and dismiss
and remand in part.
1. “Under 28 U.S.C. § 1291, we normally have no jurisdiction to hear
interlocutory appeals from the denial of summary judgment.” Isayeva v.
Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944 (9th Cir. 2017). Summary
judgment denials on qualified immunity grounds, however, are “appealable ‘final
decisions’ because ‘[q]ualified immunity is immunity from suit, not just a defense
to liability.’” Id. at 944–45 (alteration in original) (quoting Knox v. Sw. Airlines,
124 F.3d 1103, 1106 (9th Cir. 1997)). However, while “[w]e must accept the
district court’s determination that there is a genuine dispute” of fact as to the
2 circumstances under which Barrera died, we may review whether the Defendants
are entitled to qualified immunity on summary judgment by construing the facts in
the light most favorable to the Barrera family and analyzing: “(1) whether the
defendant[s] violated a constitutional right, and (2) whether that right was clearly
established at the time of the alleged violation.” Id. at 945.
2. The district court did not err by concluding that the Defendants were
not entitled to qualified immunity on summary judgment as to the excessive force
claims under the Fourth Amendment. The Barrera family presents evidence that
the Defendants targeted Barrera, an unarmed man suffering from mental illness,
tased him in violation of Woodland Police Department (the “Department”) policy,
dog-piled on top of him as he lay prone on the pavement, and continued to hold
him down on his stomach with the full weight of their bodies for a total of four
minutes until Barrera asphyxiated, while Barrera was handcuffed and stating that
he could not breathe. While the Defendants dispute this version of events, viewing
the facts in the light most favorable to the Barrera family, their conduct violated
law clearly established in Drummond ex rel. Drummond v. City of Anaheim, 343
F.3d 1052 (9th Cir. 2003), which held that “compression asphyxia”—particularly
where a detainee was mentally ill, unarmed, restrained and begging for air—
constituted excessive force that “any reasonable officer would have known . . .
amounted to a constitutional violation.” Id. at 1062. And Defendants’ own
3 deposition testimony confirms that Department officers were trained to roll over a
detainee if he was struggling to breathe or already handcuffed, due to the risk of
potential asphyxiation. Drummond is sufficiently similar to this case that the
Defendants would have been on notice that, when Barrera was handcuffed and
prone on the ground, additional restraint, as applied here, is unconstitutionally
excessive.
Similarly, while Defendants contend that it was not clearly established that
the misuse of a Taser can constitute excessive force, our precedent dictates that the
excessive use of a Taser can be a violation of the Fourth Amendment. The Barrera
family alleges that Lal tased Barrera four times for a total of 24 seconds, in excess
of Department policy instructing officers to apply the Taser for a five-second cycle
and then reevaluate the situation before using it again. In Mattos v. Agarano, 661
F.3d 433 (9th Cir. 2011) (en banc), we held that multiple applications of a taser,
even in the less forceful “drivestun mode,” can constitute unreasonable and
unconstitutionally excessive force. Id. at 446. A reasonable jury could therefore
conclude that the application of the Taser here was unreasonable in light of the
government interests at stake, and that the Defendants violated clearly established
law as well as Department policy when they tased Barrera. See id. at 443–46.
Finally, while Defendants appear to argue that the district court should have
granted qualified immunity to individual Defendants, genuine disputes of material
4 fact preclude us from reviewing and determining individual responsibility for the
alleged incident and making a qualified immunity determination on a person-by-
person basis. Viewing the facts in the light most favorable to the Barrera family,
each Defendant was an “integral participant” in the unconstitutional use of force.
Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004) (explaining that “each
officer’s actions themselves” need not “rise to the level of a constitutional
violation” for Fourth Amendment liability to attach). Therefore, the district court
properly denied qualified immunity to each Defendant on the excessive force
claims.
3. However, because we cannot discern from the district court’s order
the basis on which it denied the Defendants’ assertion of qualified immunity on the
Fourteenth Amendment loss of familial relationship claim, we remand to the
district court to clarify its order as to that claim. We have encouraged district
courts to clearly “articulate the basis upon which they deny qualified immunity.”
Maropulos v. County of Los Angeles, 560 F.3d 974, 976 (2009) (per curiam).
“Where, as here, ‘we cannot tell for sure’ what action the district court took with
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DANIEL BARRERA; et al., No. 22-15542
Plaintiffs-Appellees, D.C. No. 2:18-cv-00329-JAM-KJN v.
DAVID KRAUSE, Sergeant; et al., MEMORANDUM*
Defendants-Appellants,
and
CITY OF WOODLAND; DAN BELLINI, Former Police Chief,
Defendants.
Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding
Submitted February 15, 2023** San Francisco, California
Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Defendants Officer Richard Wright, Officer Parveen Lal, Officer Hannah
Gray, Sergeant Thomas Davis, and Sergeant David Krause (collectively
“Defendants”) appeal the district court’s order denying summary judgment on
qualified immunity grounds. Daniel Barrera, Christine Amaro, and two minors
(collectively the “Barrera family”) brought this wrongful death action pursuant to
42 U.S.C. § 1983 individually and as successors-in-interest to their son and father
Michael Barrera (“Barrera”), alleging claims of excessive force under the Fourth
Amendment and loss of familial relationships under the Fourteenth Amendment.
The district court denied the Defendants’ motion for summary judgment, finding
that there were “just far too many genuine issues of material fact for this Court to
grant summary judgment, even for the individuals.” We affirm in part and dismiss
and remand in part.
1. “Under 28 U.S.C. § 1291, we normally have no jurisdiction to hear
interlocutory appeals from the denial of summary judgment.” Isayeva v.
Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944 (9th Cir. 2017). Summary
judgment denials on qualified immunity grounds, however, are “appealable ‘final
decisions’ because ‘[q]ualified immunity is immunity from suit, not just a defense
to liability.’” Id. at 944–45 (alteration in original) (quoting Knox v. Sw. Airlines,
124 F.3d 1103, 1106 (9th Cir. 1997)). However, while “[w]e must accept the
district court’s determination that there is a genuine dispute” of fact as to the
2 circumstances under which Barrera died, we may review whether the Defendants
are entitled to qualified immunity on summary judgment by construing the facts in
the light most favorable to the Barrera family and analyzing: “(1) whether the
defendant[s] violated a constitutional right, and (2) whether that right was clearly
established at the time of the alleged violation.” Id. at 945.
2. The district court did not err by concluding that the Defendants were
not entitled to qualified immunity on summary judgment as to the excessive force
claims under the Fourth Amendment. The Barrera family presents evidence that
the Defendants targeted Barrera, an unarmed man suffering from mental illness,
tased him in violation of Woodland Police Department (the “Department”) policy,
dog-piled on top of him as he lay prone on the pavement, and continued to hold
him down on his stomach with the full weight of their bodies for a total of four
minutes until Barrera asphyxiated, while Barrera was handcuffed and stating that
he could not breathe. While the Defendants dispute this version of events, viewing
the facts in the light most favorable to the Barrera family, their conduct violated
law clearly established in Drummond ex rel. Drummond v. City of Anaheim, 343
F.3d 1052 (9th Cir. 2003), which held that “compression asphyxia”—particularly
where a detainee was mentally ill, unarmed, restrained and begging for air—
constituted excessive force that “any reasonable officer would have known . . .
amounted to a constitutional violation.” Id. at 1062. And Defendants’ own
3 deposition testimony confirms that Department officers were trained to roll over a
detainee if he was struggling to breathe or already handcuffed, due to the risk of
potential asphyxiation. Drummond is sufficiently similar to this case that the
Defendants would have been on notice that, when Barrera was handcuffed and
prone on the ground, additional restraint, as applied here, is unconstitutionally
excessive.
Similarly, while Defendants contend that it was not clearly established that
the misuse of a Taser can constitute excessive force, our precedent dictates that the
excessive use of a Taser can be a violation of the Fourth Amendment. The Barrera
family alleges that Lal tased Barrera four times for a total of 24 seconds, in excess
of Department policy instructing officers to apply the Taser for a five-second cycle
and then reevaluate the situation before using it again. In Mattos v. Agarano, 661
F.3d 433 (9th Cir. 2011) (en banc), we held that multiple applications of a taser,
even in the less forceful “drivestun mode,” can constitute unreasonable and
unconstitutionally excessive force. Id. at 446. A reasonable jury could therefore
conclude that the application of the Taser here was unreasonable in light of the
government interests at stake, and that the Defendants violated clearly established
law as well as Department policy when they tased Barrera. See id. at 443–46.
Finally, while Defendants appear to argue that the district court should have
granted qualified immunity to individual Defendants, genuine disputes of material
4 fact preclude us from reviewing and determining individual responsibility for the
alleged incident and making a qualified immunity determination on a person-by-
person basis. Viewing the facts in the light most favorable to the Barrera family,
each Defendant was an “integral participant” in the unconstitutional use of force.
Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004) (explaining that “each
officer’s actions themselves” need not “rise to the level of a constitutional
violation” for Fourth Amendment liability to attach). Therefore, the district court
properly denied qualified immunity to each Defendant on the excessive force
claims.
3. However, because we cannot discern from the district court’s order
the basis on which it denied the Defendants’ assertion of qualified immunity on the
Fourteenth Amendment loss of familial relationship claim, we remand to the
district court to clarify its order as to that claim. We have encouraged district
courts to clearly “articulate the basis upon which they deny qualified immunity.”
Maropulos v. County of Los Angeles, 560 F.3d 974, 976 (2009) (per curiam).
“Where, as here, ‘we cannot tell for sure’ what action the district court took with
respect to [the Defendants’] assertion of qualified immunity, ‘we must either try to
discern from the record’ what the district court did ‘or remand for the district court
to explain its reasoning.’” Ballou v. McElvain, 29 F.4th 413, 428 (9th Cir. 2022)
(quoting Maropulos, 560 F.3d at 975).
5 Here, the district court did not articulate the triable issues of fact, nor did it
explain why, viewing those facts in the light most favorable to the Barrera family,
the encounter violated “clearly established” law under the Fourteenth Amendment.
It simply pointed to our decision in Drummond, which concerned excessive force
claims under the Fourth Amendment, and held that there were too many disputed
facts to grant the Defendants qualified immunity on all claims. A Fourteenth
Amendment claim requires a showing that the Defendants engaged in conduct that
“shocks the conscience,” a more demanding standard than a Fourth Amendment
excessive force claim. Lam v. City of Los Banos, 976 F.3d 986, 1003 (9th Cir.
2020). Whether qualified immunity bars these claims is therefore a closer, fact-
bound question. As “we cannot undertake appellate review effectively when
forced to guess what the district court did in order to determine whether we even
have jurisdiction,” we remand the Fourteenth Amendment claims so that the
district court can “spell out the triable issues and why they preclude immunity
before trial.” Maropulos, 560 F.3d at 975–76.
4. Finally, the district court did not err in holding that the Barrera family,
including the children, has standing to bring this action. The Defendants assert that
they appeal the district court’s standing determination not on the basis of “the
particular parent-child interactions” but based on “the nature of [Barrera’s] death,”
which they characterize as accidental. However, it is unclear how the “nature of
6 the death” implicates standing as a matter of law, and the parties dispute whether
the death was “accidental” or not.
AFFIRMED IN PART; DISMISSED AND REMANDED IN PART.