Drummond ex rel. Drummond v. City of Anaheim

• Decision Date: 10 September 2003
• Docket Number: No. 02-55320.,02-55320.
• Citation: 343 F.3d 1052
• Parties: Brian Thomas DRUMMOND, by and through his Guardian ad Litem Thomas R. DRUMMOND, Plaintiff-Appellant, v. CITY OF ANAHEIM, a California municipal entity, Anaheim Police Department, a California municipal entity, Roger Baker, Christopher Ned, Kristi Valentine, Brian Mcelhaney, Gregory Sawyer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

343 F.3d 1052

Brian Thomas DRUMMOND, by and through his Guardian ad Litem Thomas R. DRUMMOND, Plaintiff-Appellant, v. CITY OF ANAHEIM, a California municipal entity, Anaheim Police Department, a California municipal entity, Roger Baker, Christopher Ned, Kristi Valentine, Brian Mcelhaney, Gregory Sawyer, Defendants-Appellees.

No. 02-55320.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 3, 2003 — Pasadena, California.

Filed September 10, 2003.

Federico C. Sayre and Kent M. Henderson, Law Offices of Federico C. Sayre, Santa Ana, California, for the plaintiff-appellant.

Deborah P. Knefel, Deputy City Attorney, Anaheim, California, and William F. Bernard, Orange, California, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CV-00-00243-AHS.

Before JAMES R. BROWNING, HARRY PREGERSON, and STEPHEN REINHARDT, Circuit Judges.

OPINION

REINHARDT, Circuit Judge.

We again confront the interplay of excessive force and qualified immunity in a case in which a mentally disturbed individual suffers serious injuries as a result of an encounter with police officers. Once again, we reverse the grant of summary judgment in favor of the officers and remand for a trial on the merits. Three Anaheim police officers determined that Brian Drummond, who was unarmed and mentally ill, should be taken to a medical facility for his own safety, but the manner in which they attempted to subdue and restrain him resulted in his falling into a coma from which he has never recovered. Drummond brought suit under 42 U.S.C. § 1983, alleging that the officers used excessive force, in violation of the Fourth Amendment. We hold that, under the circumstances, it would have been clear to a reasonable officer at the time of the encounter that the force alleged was constitutionally excessive. We therefore reverse the district court's grant of summary judgment in favor of the defendants and remand for further proceedings.

I. BACKGROUND¹

On March 25, 1999, Brian Drummond's fiancee Olivia Graves called the Anaheim police. Drummond, who had a history of mental illness (bipolar disorder and schizophrenia), had run out of medication and was hallucinating and paranoid. Graves asked the police to help her take Drummond to the hospital to receive medical assistance.

Four Anaheim police officers responded to Graves's call; among them were Kristi Valentine, a rookie, and Christopher Ned, her training officer. The officers determined that Drummond was not a danger to himself or others — the criteria for an involuntary psychiatric detention under CAL. WELF. & INST. CODE § 5150. The officers therefore refused to take him into custody, for transport or otherwise. Graves alleges that the officers were "not very professional," and were "joking around" throughout the encounter. Later, Drummond voluntarily accompanied Graves to a medical facility to obtain the lithium that had been prescribed for him, but he had neither medical insurance nor enough money with him to obtain the drugs and left without them.

The next night, the Anaheim police were again called to help protect Drummond; his neighbor, David Kimbrough, called the police because he was afraid that Drummond was going to hurt himself by darting into traffic. Officers Ned, Valentine, and Brian McElhaney, responding to the call, found Drummond in a 7-Eleven parking lot; Ned and Valentine recognized him as the subject of the call from the night before. Drummond, who was unarmed, was hallucinating and in an agitated state, and the officers called for an ambulance to transport him to a medical facility, pursuant to § 5150. Before the ambulance arrived, however, the three officers decided to take him into custody, "for his own safety."

Independent eyewitnesses saw Officer Ned "knock Drummond to the ground[,] where the officers cuffed his arms behind his back as Mr. Drummond lay on his stomach." Although Drummond offered no resistance, McElhaney "put his knees into Mr. Drummond's back and placed the weight of his body on him. [Ned] also put his knees and placed the weight of his body on him, except that he had one knee on Mr. Drummond's neck."

Drummond weighed only 160 pounds at the time of the incident; although there is no indication of McElhaney's weight in the record, Ned weighed approximately 225 pounds at the time. With the two officers leaning on his neck and upper torso, Drummond soon fell into respiratory distress. Two eyewitnesses verified that "Mr. Drummond repeatedly told the officers that he could not breathe and that they were choking him. He also told them that he was thirsty and needed a glass of water. The officers however continued to put their weight upon Mr. Drummond[']s back and neck." One of these eyewitnesses, Victor Calleja, stated that although McElhaney and Ned were "obviously causing [Drummond] to have trouble breathing," "[t]he officers were laughing during the course of these events."

Approximately twenty minutes after Drummond was taken down, Officer Gregory Sawyer arrived at the parking lot. The officers then obtained a "hobble restraint," which they used to bind Drummond's ankles.² One minute after the restraint was applied, Drummond went limp, and the officers realized that he had lost consciousness. They checked his pulse, and then removed the handcuffs and hobble restraint and turned him over, onto his back. The officers attempted to perform CPR on Drummond until the paramedics finally arrived.

Although Drummond was revived approximately seven minutes after losing consciousness, he sustained brain damage and fell into a coma. He is now in a "permanent vegetative state."

Drummond's medical expert, Dr. Sunil Arora, is the Medical Director of the Neurological Care Unit at the Community Hospital of San Bernadino, and one of Drummond's treating physicians. Arora submitted a declaration stating that, to a reasonable medical probability, Drummond "suffered a cardiopulmonary arrest caused by lack of oxygen to his heart. The lack of oxygen ... was caused by his inability to breathe caused by mechanical compression of his chest wall such that he could not inhale and exhale in a normal manner. [Arora believes] that this occurred when [Drummond] was face[-] down on the ground and the police officers set upon his back preventing the anterior wall of his chest from expanding."

Drummond filed a complaint in the district court. The complaint named as defendants the city of Anaheim, the Anaheim police department and its police chief, and the individual officers who responded to the March 26 call; it alleged federal claims for violations of §§ 1981 and 1983, and state claims for assault and battery, negligent use of force, negligent hiring and training, and intentional infliction of emotional distress. The defendants moved for summary judgment, which the district court granted, finding both that there was no constitutional violation by any defendant, and that even if there were a violation, the law was not sufficiently clearly established that a reasonable officer would have known the conduct to be unconstitutional. As a result, the court held that all defendants were entitled to qualified immunity as a matter of law. The court also granted summary judgment in favor of the defendants as to Drummond's state claims, holding that each such claim depended on the showing of a constitutional violation. Drummond timely appealed.

II. DISCUSSION

Drummond contends that the district court erred in finding qualified immunity on behalf of the city and its police officers.³ Specifically, Drummond contends that his allegations present a genuine issue of material fact as to whether the officers' conduct violated the Constitution, and that any reasonable officer would have understood the alleged conduct to constitute such a violation.

Due in part to the volume of excessive force cases in this circuit, the legal framework for evaluating such cases is, by now, straightforward.

In order to decide whether state officers are entitled to qualified immunity, Saucier [v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001),] instructs that we must first determine whether, "[t]aken in the light most favorable to the party asserting the injury ... the facts alleged show [that] the officer's conduct violated a constitutional right." Saucier, [533 U.S. at 201, 121 S.Ct. 2151]. "[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established... in light of the specific context of the case" such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id.

Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125, 1129 (9th Cir.2002) [Headwaters II]; see also Robinson v. Solano County, 278 F.3d 1007, 1012-13 (9th Cir.2002)(en banc) (same).

A. The Alleged Conduct Violated the Constitution

Following Saucier, we first determine whether, on the facts offered in support of Drummond's claim, the Anaheim officers' conduct violated the constitutional prohibition against the use of excessive force. As we have explained:

A Fourth Amendment claim of excessive force is analyzed under the framework set forth by the Supreme Court in Graham v. Connor, [490 U.S. 386, 109 S.Ct. 1865 (1989)]. That analysis requires balancing the "nature and quality of the intrusion" on a person's liberty with the "countervailing governmental interests at stake" to determine whether the use of force was objectively reasonable under the circumstances. [Id. at 396, 109 S.Ct. 1865.] Determining whether a police officer's use of force was reasonable or excessive therefore "requires careful attention to the facts and circumstances of each particular case" and a "careful balancing" of an individual's liberty with the government's interest in...