NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 22 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CHELSEA DIAMOND, as personal No. 25-2393 representative of the estate of, DOUGLAS D.C. No. DIAMOND, deceased, 3:22-cv-00346-SI Plaintiff - Appellee, MEMORANDUM* v.
SEAN COLLINSON,
Defendant - Appellant,
and
CITY OF SANDY, a municipal corporation, COUNTY OF CLACKAMAS, WILLIAM WETHERBEE,
Defendants.
CHELSEA DIAMOND, as personal No. 25-2561 representative of the estate of DOUGLAS DIAMOND, deceased, D.C. No. 3:22-cv-00346-SI Plaintiff - Appellee,
v.
WILLIAM WETHERBEE,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants - Appellants,
SEAN COLLINSON, CITY OF SANDY, a municipal corporation, COUNTY OF CLACKAMAS,
Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding
Argued and Submitted May 20, 2026 Seattle, Washington
Before: TALLMAN, CLIFTON, and R. NELSON, Circuit Judges.
Douglas Diamond was shot and killed during an altercation arising out of a
welfare check by Clackamas County and City of Sandy, Oregon, law enforcement
officers. Diamond’s estate sued the City of Sandy, Officers Michael Boyes and
William Wetherbee, along with Clackamas County and Sheriff’s Sergeant Sean
Collinson, alleging violations of Diamond’s rights under the Fourth and Fourteenth
Amendments and Oregon state law. At summary judgment, the district court
concluded that the officers were not entitled to qualified immunity because
(1) triable issues of fact existed as to whether their use of force was excessive; (2) the
law clearly established that their conduct was unlawful; and (3) Sergeant Collinson
2 25-2393 was potentially liable for Officer Wetherbee’s and Officer Boyes’s conduct under
the integral participant doctrine.
On interlocutory appeal, Officer Wetherbee and Sergeant Collinson now
challenge the district court’s denial of qualified immunity as a matter of law.1 We
have jurisdiction under 28 U.S.C. § 1291. “Reviewing de novo [] the district court’s
qualified immunity decision,” Fuhr v. City of Seattle, 175 F.4th 1081, 1085 (9th Cir.
2026) (citation omitted), we hold that the district court erred on the second prong of
the qualified immunity analysis and reverse its decision as to Wetherbee and
Collinson. In light of our disposition, the case will proceed in district court on the
excessive force, failure to train, and state law claims against the City of Sandy,
County of Clackamas, and Officer Boyes.
1. Police officers are entitled to qualified immunity “unless (1) they
violated a federal statutory or constitutional right, and (2) the unlawfulness of their
conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 583
U.S. 48, 62–63 (2018) (citation omitted). We may address these prongs in either
order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). However, our review is
limited on interlocutory appeal. Specifically, “[a]ny decision by the district court
1 The City of Sandy and Clackamas County did not appeal the district court’s denial of summary judgment. We granted Officer Boyes’s motion to voluntarily dismiss his appeal in a separate order. We therefore resolve the question of qualified immunity only as to Officer Wetherbee and Sergeant Collinson.
3 25-2393 ‘that the parties’ evidence presents genuine issues of material fact is categorically
unreviewable on interlocutory appeal.’” George v. Morris, 736 F.3d 829, 834 (9th
Cir. 2013) (quoting Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009)).
In this case, we do not believe that interlocutory appeal is the appropriate
procedural stage to resolve the heavily factual question of excessive force. The
district court found multiple genuine disputes of fact that prevented qualified
immunity at summary judgment, including whether Diamond posed an immediate
threat when Officer Wetherbee fired beanbag rounds and Sergeant Collinson
deployed his TASER. Accordingly, we do not decide whether a Fourth Amendment
violation occurred under these circumstances.
2. However, the limitations on our review at this interlocutory stage do
not prevent us from considering whether the alleged violation “was in contravention
of federal law that was clearly established at the time.” Villanueva v. California,
986 F.3d 1158, 1165 (9th Cir. 2021) (citation omitted). We do so now, “construing
the facts and drawing all inferences in favor of Plaintiff[].” Id. (citation omitted).
A determination that the law was clearly established requires the court to
“identify a case where an officer acting under similar circumstances was held to have
violated the Constitution.” Zorn v. Linton, 146 S. Ct. 926, 930 (2026) (per curiam)
(citation modified). While “a case directly on point” is not required, “existing
precedent must have placed the statutory or constitutional question beyond debate,”
4 25-2393 making it “sufficiently clear that every reasonable official would have understood
that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11–12 (2015)
(per curiam) (citation modified). This “is especially important in the Fourth
Amendment context,” because “‘[i]t 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.’” Id. at 12 (quoting Saucier v. Katz, 533 U.S.
194, 205 (2001)).
Mindful of the specificity required, we find no clearly established law in our
precedents that put Wetherbee and Collinson on notice that the use of less-lethal
force to disarm an irrational and suicidal individual armed with a loaded handgun in
his pocket would violate Diamond’s Fourth Amendment rights under the unique
circumstances of this case. Several 911 calls were made the day before and the day
of the incident regarding Diamond’s suicidal threats and troubled mental condition.
Those calls were initially handled with telephone contact between the Sheriff’s
Office and Diamond. The officers finally initiated a face-to-face welfare check in
response to yet another call from Diamond’s son-in-law, who believed he had heard
a gunshot in the background while on the phone with Diamond. The officers knew
Diamond was agitated, intoxicated, armed, and that he was a former law
enforcement officer. They knew he was holding a gun in the kangaroo pocket of his
sweatshirt. Diamond repeatedly refused to comply with orders to remove his hands
5 25-2393 from that pocket. Wetherbee issued a less-lethal force warning, yet Diamond still
refused to comply by showing his hands outside the pocket, at which point
Wetherbee then fired the beanbag rounds.
Accordingly, the circumstances of this case do not present the same sort of
features that we have previously held to constitute excessive force. Cf., e.g., Estate
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 22 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
CHELSEA DIAMOND, as personal No. 25-2393 representative of the estate of, DOUGLAS D.C. No. DIAMOND, deceased, 3:22-cv-00346-SI Plaintiff - Appellee, MEMORANDUM* v.
SEAN COLLINSON,
Defendant - Appellant,
and
CITY OF SANDY, a municipal corporation, COUNTY OF CLACKAMAS, WILLIAM WETHERBEE,
Defendants.
CHELSEA DIAMOND, as personal No. 25-2561 representative of the estate of DOUGLAS DIAMOND, deceased, D.C. No. 3:22-cv-00346-SI Plaintiff - Appellee,
v.
WILLIAM WETHERBEE,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants - Appellants,
SEAN COLLINSON, CITY OF SANDY, a municipal corporation, COUNTY OF CLACKAMAS,
Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding
Argued and Submitted May 20, 2026 Seattle, Washington
Before: TALLMAN, CLIFTON, and R. NELSON, Circuit Judges.
Douglas Diamond was shot and killed during an altercation arising out of a
welfare check by Clackamas County and City of Sandy, Oregon, law enforcement
officers. Diamond’s estate sued the City of Sandy, Officers Michael Boyes and
William Wetherbee, along with Clackamas County and Sheriff’s Sergeant Sean
Collinson, alleging violations of Diamond’s rights under the Fourth and Fourteenth
Amendments and Oregon state law. At summary judgment, the district court
concluded that the officers were not entitled to qualified immunity because
(1) triable issues of fact existed as to whether their use of force was excessive; (2) the
law clearly established that their conduct was unlawful; and (3) Sergeant Collinson
2 25-2393 was potentially liable for Officer Wetherbee’s and Officer Boyes’s conduct under
the integral participant doctrine.
On interlocutory appeal, Officer Wetherbee and Sergeant Collinson now
challenge the district court’s denial of qualified immunity as a matter of law.1 We
have jurisdiction under 28 U.S.C. § 1291. “Reviewing de novo [] the district court’s
qualified immunity decision,” Fuhr v. City of Seattle, 175 F.4th 1081, 1085 (9th Cir.
2026) (citation omitted), we hold that the district court erred on the second prong of
the qualified immunity analysis and reverse its decision as to Wetherbee and
Collinson. In light of our disposition, the case will proceed in district court on the
excessive force, failure to train, and state law claims against the City of Sandy,
County of Clackamas, and Officer Boyes.
1. Police officers are entitled to qualified immunity “unless (1) they
violated a federal statutory or constitutional right, and (2) the unlawfulness of their
conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 583
U.S. 48, 62–63 (2018) (citation omitted). We may address these prongs in either
order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). However, our review is
limited on interlocutory appeal. Specifically, “[a]ny decision by the district court
1 The City of Sandy and Clackamas County did not appeal the district court’s denial of summary judgment. We granted Officer Boyes’s motion to voluntarily dismiss his appeal in a separate order. We therefore resolve the question of qualified immunity only as to Officer Wetherbee and Sergeant Collinson.
3 25-2393 ‘that the parties’ evidence presents genuine issues of material fact is categorically
unreviewable on interlocutory appeal.’” George v. Morris, 736 F.3d 829, 834 (9th
Cir. 2013) (quoting Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009)).
In this case, we do not believe that interlocutory appeal is the appropriate
procedural stage to resolve the heavily factual question of excessive force. The
district court found multiple genuine disputes of fact that prevented qualified
immunity at summary judgment, including whether Diamond posed an immediate
threat when Officer Wetherbee fired beanbag rounds and Sergeant Collinson
deployed his TASER. Accordingly, we do not decide whether a Fourth Amendment
violation occurred under these circumstances.
2. However, the limitations on our review at this interlocutory stage do
not prevent us from considering whether the alleged violation “was in contravention
of federal law that was clearly established at the time.” Villanueva v. California,
986 F.3d 1158, 1165 (9th Cir. 2021) (citation omitted). We do so now, “construing
the facts and drawing all inferences in favor of Plaintiff[].” Id. (citation omitted).
A determination that the law was clearly established requires the court to
“identify a case where an officer acting under similar circumstances was held to have
violated the Constitution.” Zorn v. Linton, 146 S. Ct. 926, 930 (2026) (per curiam)
(citation modified). While “a case directly on point” is not required, “existing
precedent must have placed the statutory or constitutional question beyond debate,”
4 25-2393 making it “sufficiently clear that every reasonable official would have understood
that what he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7, 11–12 (2015)
(per curiam) (citation modified). This “is especially important in the Fourth
Amendment context,” because “‘[i]t 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.’” Id. at 12 (quoting Saucier v. Katz, 533 U.S.
194, 205 (2001)).
Mindful of the specificity required, we find no clearly established law in our
precedents that put Wetherbee and Collinson on notice that the use of less-lethal
force to disarm an irrational and suicidal individual armed with a loaded handgun in
his pocket would violate Diamond’s Fourth Amendment rights under the unique
circumstances of this case. Several 911 calls were made the day before and the day
of the incident regarding Diamond’s suicidal threats and troubled mental condition.
Those calls were initially handled with telephone contact between the Sheriff’s
Office and Diamond. The officers finally initiated a face-to-face welfare check in
response to yet another call from Diamond’s son-in-law, who believed he had heard
a gunshot in the background while on the phone with Diamond. The officers knew
Diamond was agitated, intoxicated, armed, and that he was a former law
enforcement officer. They knew he was holding a gun in the kangaroo pocket of his
sweatshirt. Diamond repeatedly refused to comply with orders to remove his hands
5 25-2393 from that pocket. Wetherbee issued a less-lethal force warning, yet Diamond still
refused to comply by showing his hands outside the pocket, at which point
Wetherbee then fired the beanbag rounds.
Accordingly, the circumstances of this case do not present the same sort of
features that we have previously held to constitute excessive force. Cf., e.g., Estate
of Lopez v. Gelhaus, 871 F.3d 998, 1003–04 (9th Cir. 2017) (officers fatally shot
thirteen-year-old holding toy gun; factual dispute as to position and movement of
toy gun); Cruz v. City of Anaheim, 765 F.3d 1076, 1078–79 (9th Cir. 2014) (force
would be excessive if officers fatally shot a suspect who did not reach for his
waistband or make a threatening gesture); George, 736 F.3d at 832–33 (officers
fatally shot a man with a walker who was “holding a gun with the barrel pointing
down”; factual dispute as to whether he “manipulated the gun, or pointed it directly
at deputies”); Glenn v. Wash. Cnty., 673 F.3d 864, 873–75 (9th Cir. 2011) (officers
fired beanbag rounds and fatally shot a teenager holding a three-inch pocketknife to
his own neck; factual dispute as to whether he heard or understood orders to
comply); Deorle v. Rutherford, 272 F.3d 1272, 1276, 1281–82 (9th Cir. 2001)
(officer shot an unarmed, compliant man in the face with a beanbag even though the
6 25-2393 officer had a clear line of retreat and man had been under observation for roughly 40
minutes).2
All Diamond had to do was pull the trigger and fire the weapon through the
sweatshirt pocket when he refused to comply with the officers’ repeated commands
to show his hands. “Because no case clearly established a Fourth Amendment right
violated by [Officer Wetherbee or Sergeant Collinson]” to deploy less-lethal force
to disarm Diamond, “[they are] entitled to qualified immunity.” Fuhr, 175 F.4th at
1086. The district court erred in not heeding the Supreme Court’s directive in
Graham v. Connor, 490 U.S. 386, 397 (1989), that officers are entitled to some
breathing room in addressing “circumstances that are tense, uncertain, and rapidly
evolving.” This is a textbook example of how the Supreme Court has told us to
employ qualified immunity analyses.
3. Finally, we conclude that the district court also erred in holding that
Sergeant Collinson could be liable for the lethal shooting as an “integral participant.”
See Peck v. Montoya, 51 F.4th 877, 891 (9th Cir. 2022) (describing two pathways
for liability under the integral participant doctrine). First, Collinson, Wetherbee, and
Boyes may have agreed to a common plan to approach Diamond to peacefully
2 We are especially mindful of the Supreme Court’s instruction to us in Kisela v. Hughes “not to read [our] decision in [Deorle] too broadly in deciding whether a new set of facts is governed by clearly established law.” 584 U.S. 100, 104 (2018) (per curiam) (citing City and County of San Francisco v. Sheehan, 575 U.S. 600, 614–16 (2015)).
7 25-2393 resolve the situation, but Collinson “had no reason to know that an unconstitutional
shooting would take place.” Id. Nor did he “acquiesce[] in the constitutionally
defective conduct as part of [the] common plan.” Id.
The officers arrived at the scene after multiple 911 calls about an armed
individual who was intoxicated, behaving erratically, and threatening suicide.
Diamond repeatedly refused to take his hands out of his sweatshirt pocket, which
contained a loaded gun. It does not seem unreasonable for the officers “to [have]
treat[ed] the situation as a potentially hostile and dangerous encounter, justifying
their decision to” implement a plan that included a less-lethal option and lethal cover
as a last resort. Id. at 892.
Second, given the situation, the officers were justified in their decision to
approach the scene with less-lethal and lethal cover. The purpose of lethal cover is
to ensure that deadly force is available if it becomes justified in defense of officers
otherwise engaged in deploying less-lethal alternatives or if the actions of the subject
justify self-defense. So, when Collinson physically charged Diamond after the
ineffective TASER deployment, he may have reasonably known that a shooting
could occur, but he had no reason to foresee that an unconstitutional shooting would
occur. No existing caselaw clearly established that it was unlawful for officers to
try to resolve this extremely dangerous situation by deploying less-lethal force. We
8 25-2393 therefore hold that Sergeant Collinson cannot be held liable as an integral participant
for the use of the alleged excessive force by Officer Boyes.
Costs are awarded to Defendants-Appellants William Wetherbee and Sean
Collinson.
REVERSED and REMANDED.
9 25-2393