• The Fourth Amendment and excessive force 
• The Fourteenth Amendment substantive due process right to familial association 
• Qualified immunity from civil liability 
• Use of force in subduing a mentally ill person 

Under the Fourth Amendment, an officer’s use of force in taking a mentally ill person into protective custody must be reasonable. With the law on this issue being clear, the doctrine of qualified immunity from civil liability does not apply. The use of deadly force on a plaintiff’s father potentially deprives the plaintiff of her Fourteenth Amendment substantive due process right to “familial association.” The illegality of using force on a mentally ill person as a due process violation, however, is not sufficiently established in the law, allowing for a finding of qualified immunity from civil liability.

Roy Scott called the police early in the morning on March 3, 2019, reporting that multiple assailants were outside his apartment, one armed with a saw. Officers from the Las Vegas Metropolitan Police Department (LVMPD) responded. LVMPD dispatch notified the officers that Scott appeared to be mentally ill. Upon officers’ arrival, it was apparent that Scott was “distressed and hallucinating.” When officers knocked on his door, Scott yelled for them to “break the door down,” while claiming there were people inside his apartment. The conversation between the officers, as recorded on their bodycams, reflected the fact that they were well aware Scott was mentally ill.  

Believing there was no one else inside with Scott, the officers continued to knock, trying to convince him to open the door. After about seven minutes and numerous pleas from the officers, Scott opened the door, holding a metal pipe at his side. As the officers backed away from the entrance and descended the stairs, Scott followed. When told to drop the pipe, he readily complied. An obviously disoriented Scott asked twice: “What am I supposed to do ”  

Told to stand near a wall at the base of the stairs, Scott did so. Asked if he had any other weapons, Scott produced a knife from his front pants pocket. Telling the officers that he was sorry, he handed the knife to one of the officers, handle-side out, without making any threatening gestures. Scott complained that the flashlights the officers were using bothered him, telling them he suffered from paranoid schizophrenia. He asked twice: “Can you just put me in the car, please ” Asked about the pipe and the knife he had already relinquished, Scott explained, “I think people are after me.”  

The officers concluded that Scott was in “some sort of distress” and that he met the qualifications for a medical hold for his mental health and safety. However, when told to face the wall, Scott replied; “I’m paranoid, I can’t turn around.” When the officers tried to convince him they were there to help him, Scott repeatedly responded that he was “not fine.” The officers then approached him and grabbed his arms. As Scott repeatedly pleaded in a distressed voice, “please,” and “what are you doing ” the officers pulled him to the ground. As they tried to handcuff him, Scott screamed and struggled, pleading with the officers to leave him alone.  

The officers rolled Scott onto his stomach with his hands restrained behind his back. In this position, one of the officers put his bodyweight on Scott’s back and neck for about two minutes as another put his weight on his legs, restraining Scott’s lower body. Scott’s pleas turned increasingly incoherent and breathless as the officers remained on top of him. Upon getting Scott handcuffed, the officers attempted to roll him onto his side.  

His face bloodied from being in contact with the ground, Scott had stopped yelling and thrashing and failed to respond when the officers tried to revive him. Paramedics were called. Scott, however, was pronounced dead after the paramedics removed him from the scene.  

The plaintiffs’ expert later testified that Scott had died from “restraint asphyxia.” Scott’s daughter, Rochelle Scott, as co-special administrator of his estate, sued the officers and the LVMPD in federal court pursuant to 42 U.S.C. § 1983, alleging (1) a violation of Scott’s Fourth Amendment right to be free from excessive force and (2) Rochelle Scott’s Fourteenth Amendment substantive due process right to familial association, among other claims. The trail court dismissed the civil defendants’ motion for summary judgment to dismiss the case. The defendants appealed. 

The Ninth Circuit Court of Appeals affirmed in part and reversed in part. The issue on appeal was whether the officers were entitled to qualified immunity as to either or both the Fourth and Fourteenth Amendment issues.  

In deciding this issue, the court was required to view the facts in the light most favorable to the plaintiffs – to assume that the plaintiffs’ factual allegations were true. The analysis involves a finding of whether the officer did violate a constitutional right, and if so, if was it a clearly established right. Rights at issue here were: (1) Roy Scott’s Fourth Amendment rights protecting him from the use of excessive force, and (2) Rochelle Scott’s Fourteenth Amendment substantive due process right to familial association.  

(1) Fourth Amendment/Excessive Force: “Under the Fourth Amendment, police may use only such force as is objectively reasonable under the circumstances.” (LaLonde v. County of Riverside (9th Cir. 2000) 204 F.3rd 947, 959.) In considering whether the force used was reasonable, a court is to consider “(1) the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted, (2) the government’s interest in the use of force, and (3) the balance between the gravity of the intrusion on the individual and the government’s need for that intrusion.” (Rice v. Morehouse (9th Cir. 2021) 989 F.3rd 1112, 1121.) The court must also consider the totality of the circumstances “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” (Graham v. Connor (1989) 490 U.S. 386, 396.)  

With these rules in mind, the court here determined that the officers did in fact violate Scott’s Fourth Amendment rights by using excessive force, resulting in his death. The court ruled that, under factor one above, the officers used “deadly force,” meaning force that “creates a substantial risk of causing death or serious bodily injury.” (Smith v. City of Hemet (9th Cir. 2005) 394 F.3rd 689, 706.) Sitting on his Scott’s back and neck during and after handcuffing for a total of about one to two minutes while Scott’s pleas turned increasingly incoherent and breathless constituted “severe, deadly force.”  

The court has previously held that bodyweight compression on a prone individual can cause “compression asphyxia.” (See Drummond ex rel. Drummond v. City of Anaheim (9th Cir. 2003) 343 F.3rd 1052, 1056-1057.)  

In evaluating the government’s interest in using such force, factor two, the court determined that in this case, because Scott did not pose an “immediate threat,” it wasn’t necessary to subdue him in the manner that was done. Taking into account Scott’s apparent mental illness, that he was unarmed (and had voluntarily relinquished any weapons available to him), that he had not committed a crime, and where he was otherwise cooperative (telling the officers that he was ready to leave with them), it did not appear to be necessary to subject him to a forced handcuffing.  

Further, the officers ignored less-intrusive alternatives to the force they employed, such as verbal de-escalation strategies, waiting for the support of additional officers to execute a safer “team takedown,” or waiting for paramedics to use a “soft restraint.” All of this limited the government’s interest in applying the force that was used.  

In balancing the interests, factor three, the court first noted that it “must balance the force used against the need for such force to determine whether the force used was ‘greater than is reasonable under the circumstances.’” (Espinosa v. City and County of San Francisco (9th Cir. 2010) 598 F.3rd 528, at pg. 537.) “Generally, deadly force is not permissible ‘unless it is necessary to prevent escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.’” “Force ‘is permissible only when a strong government interest compels the degree of force used.” (Italics in original; Smith v. City of Hemet, supra, at pg. 704.)  

Using these standards, the court held that the officers in this case were not justified in using the force they used against Scott in that he was not suspected of having committed a crime and presented, under the circumstances, little if any danger to the officers. Under these circumstances, a reasonable jury could certainly find that the officers’ use of severe or deadly force was constitutionally excessive.  

The court further found that the Ninth Circuit’s case law on this issue is clearly established, citing a number of cases to that effect. (E.g., see Drummond ex rel. Drummond v. City of Anaheim, supra.) It is important to know also that the law is especially clear where, as here, the officers knew that the prone individual was suffering from a mental illness and was not suspected of a crime. Finding that the force used was excessive, and that the law was clear on this issue, the court affirmed the district court’s denial of qualified immunity for the civil defendants, allowing the case to go to trial.    

It is important to know also that the law is especially clear where, as here, the officers knew that the prone individual is suffering from a mental illness and is not suspected of a crime.? Finding that the force used was excessive, and that the law was clear on this issue, the court affirmed the district court’s denial of qualified immunity for the civil defendants, allowing the case to go to trial. 

(2) Fourteenth Amendment Due Process Right to Familial Association: The plaintiff, Rochelle Scott, also alleged that the officers’ use of deadly force on her father deprived her of her Fourteenth Amendment substantive due process right to “familial association.” On this issue, the court again ruled that the law on this is clearly established. The rules are clear, though a bit complex: parents and children have a substantive due process right to a familial relationship free from unwarranted state interference. (Hardwick v. County of Orange (9th Cir. 2020) 980 F.3rd 733, 740-741 & fn. 9.)  

To prove a violation of the right to familial association under the Fourteenth Amendment based upon an officer’s use of force, a plaintiff must establish that an officer’s conduct “shocks the conscience.” (Nicholson v. City of Los Angeles (9th Cir. 2019) 935 F.3rd 685, 692.) Two tests govern whether an officer’s conduct shocks the conscience. Which test applies turns on whether the officers had time to deliberate in how to handle the situation. The “deliberate-indifference test” applies when a situation “evolve[s] in a time frame that permits the officer to deliberate before acting.” At the other end of the spectrum, the more demanding “purpose-to-harm test” applies when a situation escalates so quickly that the officer must make a snap judgment. (Porter v. Osborn (9th Cir. 2008) 546 F.3rd 1131, 1137.)  

To decide which test applies, a court must ask itself whether deliberation by the officer was “practical” under the circumstances, recognizing that the necessary deliberation may be practical even without an extended timeline of events. (See Moreland v. Las Vegas Metropolitan Police Department (9th Cir. 1998) 159 F.3rd 365, 372.)  

With these rules in mind, the court here held that the officers had more than enough time to deliberate and consider their next steps. Applying the deliberate-indifference standard, therefore, the court held that the officers clearly violated Rochelle Scott’s Fourteenth Amendment rights in that they were “deliberately indifferent to the risk that their use of force could seriously injure or kill Scott.”  

However, the court further ruled that the case law on this issue was not clearly established, at least enough to put the officers on notice that by doing what they did, they could be subjecting themselves to civil liability. As such, the trial court should have granted the civil defendants’ motion for qualified immunity. The district court was therefore reversed on this issue. 

I briefed this case to highlight the issue of the advisability of using an officer’s body weight on the back and neck of a resisting subject. Only four and a-half years ago, then-Minneapolis patrol officer Derek Chauvin applied such force (and to a more aggravated degree) to George Floyd, resulting in Floyd’s death and Chauvin’s firing, prosecution, conviction and imprisonment for murder.  

While I’m sure that using the knee-to-the-neck and/or back technique is very effective in holding a resisting subject still long enough to get him or her handcuffed, you have to be very careful. Civil liability for applying your body weight to a subject in such a manner may be the least of your worries should you do so too hard and/or for too long. Add to this the problem that the subject in this case, Roy Scott, was not even accused of having committed a crime, and you can pretty much assume you’re going to be held civilly, if not criminally, liable should you take it too far.  

In this case, a fully cooperative Roy Scott was openly seeking the officers’ assistance while volunteering to get into the police car. You can certainly see why the court questioned the necessity of handcuffing him at all, let alone using deadly force to do so. While any officer knows that a mentally distressed individual, such as Scott in this case, can turn on you in a heartbeat, it is arguable, as the court noted, that convincing Scott to voluntarily submit to some sort of restraint was a tactic that should have been tried first. Merely pouncing on him did not seem to be the best choice of tactics – at least this court didn’t think so. And Scott’s death certainly highlights the court’s conclusions on this issue.