FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY PEREZ; CECILIA 

PEREZ; TERRALEE PEREZ, 

individually and as successor in 

interest to Joseph Perez; JOSEPH 

PEREZ, Jr., individually and as 

successor in interest to Joseph Perez; 

MICHELLE PEREZ, individually and 

as successor in interest to Joseph 

Perez, 

Plaintiffs-Appellants, 

 v. 

CITY OF FRESNO; COUNTY OF 

FRESNO; JAMES ROSSETTI; SEAN 

CALVERT; CHRIS MARTINEZ; 

BRAITHAN STOLTENBERG; 

ROBERT MCEWEN; KARLSON 

MANASAN; JIMMY ROBNETT; 

AMERICAN AMBULANCE; 

MORGAN ANDERSON, 

Defendants-Appellees.

No. 22-15546 

D.C. No. 

1:18-cv-00127-

AWI-EPG 

OPINION

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding
2 PEREZ V. CITY OF FRESNO

Argued and Submitted September 11, 2023 

San Francisco, California 

Filed April 15, 2024 

Before: Danny J. Boggs,*

 Sidney R. Thomas, and Danielle 

J. Forrest, Circuit Judges. 

Opinion by Judge Forrest; 

Partial Concurrence and Partial Dissent by Judge S.R. 

Thomas 

SUMMARY**

Civil Rights/Deadly Force/Qualified Immunity

The panel affirmed the district court’s summary 

judgment for the City and County of Fresno, individual lawenforcement officers, and a paramedic in an action brought 

by the family of Joseph Perez, who asphyxiated and died 

after the officers, at the direction of the paramedic, used their 

body weight to restrain Perez while he was prone in order to 

strap him to a backboard for hospital transport. 

The panel held that the law-enforcement officers were 

entitled to qualified immunity. At the time of Perez’s death 

in 2017, the law did not clearly establish, nor was it 

* The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. 

Court of Appeals for the Sixth Circuit, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
PEREZ V. CITY OF FRESNO 3

otherwise obvious, that the officers’ actions—pressing on a 

backboard on top of a prone individual being restrained for 

medical transport, at the direction of a paramedic working to 

provide medical care—would be unconstitutional.

The panel next held that the paramedic involved was 

entitled to qualified immunity because the law did not 

clearly establish at the time that a paramedic acting in a 

medical capacity to restrain a person in order to secure the 

person for medical transport could be held liable for a 

constitutional violation under either the Fourth or Fourteenth 

Amendment.

Finally, the panel held that the district court properly 

dismissed plaintiffs’ Monell claims because plaintiffs 

presented insufficient evidence that the City and the County 

were deliberately indifferent to their duty to properly train 

their law-enforcement officers.

Concurring in part and dissenting in part, Judge S.R. 

Thomas concurred in the majority’s analysis of the 

paramedic liability and failure-to-train claims. However, he 

disagreed with the conclusion that the law governing the 

conduct of the individual law-enforcement defendants was 

not clearly established in 2017. Extensive federal case law, 

departmental guidance, and common sense gave the officers 

fair warning that applying continuous force to the back of a 

prone person who claims he cannot breathe is 

constitutionally excessive.
4 PEREZ V. CITY OF FRESNO

COUNSEL

Thomas C. Seabaugh (argued), The Law Office of Thomas 

C. Seabaugh, Los Angeles, California; John C. Taylor and 

Neil K. Gehlawat, Taylor & Ring LLP, Manhattan Beach, 

California; David M. Shapiro, Roderick and Solange 

MacArthur Justice Center, Northwestern Pritzker School of 

Law, Chicago, Illinois; Easha Anand, Roderick & Solange 

MacArthur Justice Center, San Francisco, California; for 

Plaintiffs-Appellants. 

James D. Weakley (argued) and Brande L. Gustafson, 

Weakley & Arendt PC, Fresno, California; for DefendantsAppellees County of Fresno, Robert McEwen, Karlson 

Mansan, Jimmy Robnett, and Braithan Stoltenberg. 

Steven J. Renick (argued), Mildred K. O' Linn, Scott W. 

Davenport, and Lynn Carpenter; Manning & Kass Ellrod 

Ramirez Trester LLP, Los Angeles, California; for 

Defendants-Appellees City of Fresno, Officer James 

Rossetti, Officer Sean Calvert, and Officer Chris Martinez.

Justin R. Sarno (argued), DLA Piper US LLP, Los Angeles, 

California; Madeline A. Cordray, DLA Piper US LLP, 

Phoenix., Arizona; Richard J. Ryan, R.J. Ryan Law APC, 

Glendale, California; Aaron J. Weissman, Tyson & Mendes 

LLP, Los Angeles, California; for Defendants-Appellees 

American Ambulance and Morgan Anderson. 
PEREZ V. CITY OF FRESNO 5

OPINION

FORREST, Circuit Judge:

In 2017, at the direction of a paramedic, lawenforcement officers used their body weight to hold down 

and restrain Joseph Perez while he was prone in order to 

strap him to a backboard so he could be transported to a 

hospital for mental-health treatment. Perez asphyxiated and 

died. Plaintiffs—Perez’s surviving family members—appeal 

the district court’s grant of summary judgment on various 42 

U.S.C. § 1983 claims in favor of the City of Fresno (the 

City), which oversees the Fresno Police Department (FPD); 

the County of Fresno (the County), which oversees the 

Fresno County Sheriff’s Office (FCSO); a number of FPD 

and FCSO law-enforcement officers (collectively, the 

officers); and an American Ambulance paramedic. Plaintiffs 

contend that the officers and paramedic are not entitled to 

qualified immunity and that the City and the County are 

liable for failing to properly train their law-enforcement 

officers. 

We affirm the district court. At the time of Perez’s death, 

the law did not clearly establish, nor was it otherwise 

obvious, that the officers’ actions, directed by medical 

personnel, would violate Perez’s constitutional rights.

Likewise, the paramedic involved was acting in a medical 

capacity during the incident, and the law did not clearly 

establish that medical personnel are liable for constitutional

torts for actions taken to provide medical care or medical 

transport. Thus, the officers and the paramedic are entitled 

to qualified immunity. We also conclude that Plaintiffs 

produced insufficient evidence to support their municipal-
6 PEREZ V. CITY OF FRESNO

liability claim against the City and the County based on a 

failure-to-train theory. 

I. BACKGROUND

In May 2017, FCSO received a call for assistance 

regarding a man—later identified as Perez—who was acting 

erratically, sprinting through the street, screaming, and 

hiding in bushes. Before FCSO could respond to the call, 

three FPD officers encountered Perez without being 

dispatched. The FPD officers observed Perez standing in the 

roadway, waving his arms, and yelling what sounded like 

“help” in their direction. When the officers approached 

Perez, he was talking to himself, stating that people were 

chasing and hitting him. Based on Perez’s behavior, the 

officers believed that he was under the influence of a 

controlled substance. According to the officers, to prevent 

Perez from darting into traffic on the four-lane roadway or 

charging at the officers near the roadway, they seated Perez 

on the curb and placed him in handcuffs. When the 

dispatched FCSO deputies arrived, they found Perez seated, 

handcuffed, and surrounded by the FPD officers. 

Five minutes after encountering Perez, one of the FPD 

officers called emergency medical services (EMS) to 

facilitate an involuntary psychiatric detention under 

California Welf. & Inst. Code § 5150. Initially, the officer 

requested a “code two” because he believed that Perez was 

a danger to himself and others. A minute and a half later, the 

officer elevated the request to a “code three.” The ambulance 

took approximately 14 minutes to arrive on scene because it 

was originally sent to the wrong location. 

While awaiting the ambulance, Perez stood up from the 

curb and refused to comply with the officers’ instructions to 

sit back down. In response, several of the officers took Perez 
PEREZ V. CITY OF FRESNO 7

to the ground to prevent him from running into traffic. While 

on the ground, one officer struck Perez’s left side three times 

with his knee and then applied a wrist lock. At the same time, 

another officer reported that Perez was being combative. 

Two additional FCSO deputies responded to the scene and 

waited in their patrol vehicle on standby. While the officers 

on the ground attempted to restrain Perez, his face repeatedly 

hit the ground, causing him to bleed. One officer placed a 

towel underneath Perez’s chin and face and lifted Perez’s 

head off the ground while holding one end of the towel in 

each hand. Another officer asked Perez if he could breathe, 

and Perez responded that he could. According to the officers,

at this point, Perez was lying on his stomach, but he

continued to kick his legs. The officers applied a RIPP 

restraint to Perez’s ankles and looped it around his handcuffs 

to control his leg movement. The officers unlooped the 

restraint from Perez’s handcuffs when EMS arrived—

approximately thirty seconds to a minute after they applied 

this restraint. 

When EMS arrived, the paramedics retrieved a 

backboard. Paramedic Morgan Anderson stated that they 

were going to attach Perez to the board while he was prone 

so that he could be medically transported. The officers 

removed the towel holding Perez’s head and assisted the 

paramedics in applying the backboard. As this was 

happening, Perez yelled that he could not breathe. Anderson

nevertheless told one of the officers to sit on the backboard. 

The officer complied and sat on the board for one minute and 

thirteen seconds while other officers applied pressure and 

worked with Anderson to secure the backboard. After the 

seated officer stood up, the paramedics continued securing 

Perez to the backboard for another two minutes before 

turning him over. Once Perez was placed on his back, the 
8 PEREZ V. CITY OF FRESNO

paramedics discovered that he did not have a pulse.

1 The 

paramedics then transported Perez to the hospital, where he 

was pronounced dead. The coroner attributed Perez’s death 

to compression asphyxia during restraint with 

methamphetamine toxicity as another significant 

contributor.

2 The coroner classified Perez’s death as a 

homicide.

Perez’s family members sued the officers and Anderson

under 42 U.S.C. § 1983 for violations of the Fourth and 

Fourteenth Amendments and the City and County for

municipal liability under Monell v. Department of Social

Services of the City of New York, 436 U.S. 658, 690 (1978), 

based on a failure-to-train theory. Plaintiffs also asserted 

various state law claims. Defendants moved for summary 

judgment asserting qualified immunity, which the district 

court granted. While the district court determined that a 

reasonable jury could find that the officers violated the 

Fourth and Fourteenth Amendment by applying pressure to 

1 Plaintiffs argue that the paramedics failed to check Perez’s pulse and 

perform CPR once they turned him over. They point to the testimony of

two officers who stated that they did not see the paramedics perform 

these tasks. Other officers, however, stated the opposite, and the 

paramedics testified that they performed lifesaving measures. The 

bodycam footage appears to show the paramedics checking Perez’s pulse 

on his neck after he was turned over. Regardless of any dispute in the 

record regarding the paramedics’ actions after Perez was turned over, it 

is immaterial to the claims on appeal that concern the use of force against 

Perez before he was turned over. See Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the 

outcome of the suit under the governing law will properly preclude the 

entry of summary judgment.”). 

2 According to the coroner, the average lethal dose of methamphetamine 

is 200 nanograms per milliliter. Perez had ten times that amount in his 

bloodstream.
PEREZ V. CITY OF FRESNO 9

the backboard while Perez was prone,

3 it nonetheless 

concluded that the officers were entitled to qualified 

immunity because at the time of the incident the law did not 

clearly establish, nor was it obvious, that the officers’ actions

were unconstitutional. The district court likewise granted 

Anderson qualified immunity because existing law did not 

clearly establish, nor was it obvious, that Anderson’s 

conduct in providing medical care was unconstitutional. 

Finally, the district court determined that Plaintiffs presented 

insufficient evidence that either the City or the County were 

deliberately indifferent to their duty to train their officers on 

restraint asphyxia. Having dismissed all of Plaintiffs’ federal 

claims, the district court declined to exercise supplemental 

jurisdiction over their remaining state-law claims. Plaintiffs 

timely appealed.

II. DISCUSSION

Plaintiffs present three issues on appeal: (1) whether the 

law-enforcement officers are entitled to qualified immunity; 

(2) whether the paramedic is entitled to qualified immunity; 

and (3) whether Plaintiffs presented sufficient evidence to 

support their Monell claim against the City and the County 

based on a failure-to-train theory. We review a district 

court’s grant of summary judgment and decision on qualified 

immunity de novo. C.V. v. City of Anaheim, 823 F.3d 1252, 

3 The district court concluded that the officers’ other uses of force, 

including taking Perez to the ground, administering knee strikes, 

applying a wrist lock, using the towel, and utilizing the RIPP restraint,

were not excessive. Plaintiffs do not challenge the district court’s 

findings on appeal. While Plaintiffs’ opening brief mentions the towel 

and uses the term “hog-tie,” to refer to the RIPP restraint that was 

eventually removed when EMS arrived, Plaintiffs present no meaningful 

argument that the district court erred in finding that neither use of force 

was independently excessive.
10 PEREZ V. CITY OF FRESNO

1255 (9th Cir. 2016). “[V]iew[ing] the evidence in the light 

most favorable to the nonmoving party,” we must 

“determine whether there are any genuine issues of material 

fact, and decide whether the district court correctly applied 

the relevant substantive law.” Johnson v. Barr, 79 F.4th 996, 

1003 (9th Cir. 2023) (quoting Animal Legal Def. Fund v. 

U.S. Food & Drug Admin., 836 F.3d 987, 989 (9th Cir. 

2016)). We address each issue in turn. 

A. Law-Enforcement Officers

We begin by considering Plaintiffs’ arguments that the 

district court erred in granting the law-enforcement officers 

qualified immunity. The doctrine of qualified immunity 

shields police officers from § 1983 liability unless (1) the 

officers “violated a federal statutory or constitutional right, 

and (2) the unlawfulness of their conduct was ‘clearly 

established at the time’” of the violation. District of 

Columbia v. Wesby, 583 U.S. 48, 62–63 (2018) (quoting 

Reichle v. Howards, 566 U.S. 658, 664 (2012)). A right is 

clearly established when it is “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

(2015) (per curiam) (quoting Reichle, 566 U.S. at 664). 

Although there need not be a case directly on point, “existing 

precedent must have placed the statutory or constitutional 

question beyond debate.” Id. at 12 (quoting Ashcroft v. alKidd, 563 U.S. 731, 741 (2011)). It is insufficient for a legal 

principle to merely be “suggested by then-existing 

precedent.” Wesby, 583 U.S. at 63. “The precedent must be 

clear enough that every reasonable official would interpret it 

to establish the particular rule the plaintiff seeks to apply.”

Id. Courts must be careful not to “define clearly established 

law at a high level of generality.” Id. (quoting Plumhoff v. 

Rickard, 572 U.S. 765, 779 (2014)). Specificity of the rule is 
PEREZ V. CITY OF FRESNO 11

critical, particularly “in the Fourth Amendment context, 

where . . . ‘[i]t is sometimes difficult for an officer to 

determine how the relevant legal doctrine . . . will apply to 

the factual situation the officer confronts.’” Luna, 577 U.S. 

at 12 (alteration in original) (quoting Saucier v. Katz, 533 

U.S. 194, 205 (2001)). Qualified immunity is a “demanding 

standard” because it “protects ‘all but the plainly 

incompetent or those who knowingly violate the law.’”

Wesby, 583 U.S. at 63 (quoting Malley v. Briggs, 475 U.S. 

335, 341 (1986)). 

The officers do not dispute the district court’s conclusion 

that a reasonable jury could find that they violated the Fourth 

and Fourteenth Amendments by applying pressure to the 

backboard while Perez was in a prone position and thereafter 

ignoring his statement that he could not breathe. Therefore, 

qualified immunity hinges on whether the unlawfulness of 

these actions, taken at the direction of medical personnel, 

was clearly established when Perez died.

4

4 The district court determined that the pressure that the officers applied 

before the paramedics arrived was “a low quantum of force” and that 

“the tipping point in the encounter [between the officers and Perez] 

occurred when the backboard was placed on Perez’s back.” As a result, 

the district court “focuse[d] mostly on [the] placement of the backboard”

in its summary judgment order. On appeal, Plaintiffs do not challenge 

the district court’s non-lethal force analysis of the actions taken before 

the backboard was introduced. Instead, Plaintiffs’ arguments are focused

only on the pressure applied to Perez related to securing the backboard

after the paramedics arrived, which they repeatedly contend caused 

Perez’s death. As just one example of many, in their Opening Brief on 

appeal they contend: “[I]t is simply obvious that it violates the 

Constitution for officers and deputies to compress Perez under a board, 

disregard his statement that he could not breathe, and apply downward 

pressure to the board until he asphyxiated and died.” As a result, the 
12 PEREZ V. CITY OF FRESNO

Plaintiffs contend that the officers are not entitled to 

qualified immunity for three reasons: (1) the officers’ 

actions were obviously unconstitutional; (2) our decision in 

Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 

1052 (9th Cir. 2003), clearly established that the officers’ 

actions violated the Constitution; and (3) the officers

departed from their training. We first consider Plaintiffs’ 

assertion that Drummond clearly established the 

unconstitutionality of the officers’ actions before addressing 

Plaintiffs’ obviousness and departure-from-training 

arguments. 

i.

In Drummond, Drummond’s neighbor called the police 

because he was afraid that Drummond, who had a history of 

mental illness, was going to injure himself by running 

through traffic. Id. at 1054. Three officers responded and 

found Drummond in a convenience store parking lot, 

unarmed, “hallucinating[,] and in an agitated state.” Id. The 

officers called for an ambulance to transport Drummond to 

the hospital for an involuntary psychiatric hold. Id. While the 

ambulance was in route, the officers took Drummond to the 

ground, handcuffed him in a prone position, and despite his

lack of resistance, two officers placed the weight of their 

bodies on his back and neck. Id. Drummond “repeatedly told 

the officers that he could not breathe,” yet the officers 

continued to apply their weight to his back and neck. Id. at 

1054–55. Several minutes later, the officers bound 

dissent’s contention that we are improperly resolving factual disputes in 

favor of the officers or improperly assuming that the paramedic’s 

instruction that the officers sit on the backboard was the cause of Perez’s 

death is incorrect. We are analyzing Plaintiffs’ case as they presented it. 

See Greenlaw v. United States, 554 U.S. 237, 243–44 (2008). 
PEREZ V. CITY OF FRESNO 13

Drummond’s ankles, and shortly thereafter, he went limp 

and stopped breathing. Id. at 1055. Although Drummond

was eventually revived, he sustained significant brain 

damage and fell into a permanent coma. Id. Through his 

guardian ad litem, Drummond sued the officers under 

§ 1983. Id. The district court granted the officers qualified 

immunity. Id. Specifically, the district court concluded that 

the officers did not violate the Constitution and even if they 

did, there was no clearly established law putting them on 

notice that their conduct was unconstitutional. Id.

We reversed. Id. at 1054. We first determined that the 

officers’ use of force was excessive. Id. at 1059–60. Then, 

we held that the law, as it existed, clearly established that the 

force used by the officers under the circumstances was 

unlawful. Id. at 1060. We explained that the officers 

asphyxiated Drummond by applying their weight to his back 

and neck despite him being restrained, nonresistant, and 

repeatedly pleading for air. Id. at 1061. Although there was 

no Ninth Circuit precedent involving the same facts, we 

determined that “[a]ny reasonable officer should have 

known that such conduct constituted . . . excessive force.” 

Id. We bolstered our conclusion by pointing to recent local 

newspaper stories and federal cases describing the dangers 

of compression asphyxia and the officers’ own training 

materials. Id. at 1061–62. 

While many of the facts in Drummond are disturbingly

similar to this case, we nonetheless conclude that Drummond

did not clearly establish the unconstitutionality of the 

officers’ conduct here because this case presents material 

factual differences. Cf. Rivas-Villegas v. Cortesluna, 595 

U.S. 1, 5–8 (2021) (per curiam) (reversing our denial of 

qualified immunity to an officer because we relied on a 

materially distinguishable case despite that case also 
14 PEREZ V. CITY OF FRESNO

involving a nonresistant, prone suspect, who was pinned to 

the ground by an officer’s knee). The injurious restraint of 

Drummond occurred before paramedics arrived, meaning 

the officers were not acting under the direction of medical 

personnel. Id. at 1054–55. But here, as just discussed, the

only use of force that Plaintiffs challenge is the restraint that 

occurred after the paramedics responded to the scene, 

determined that Perez needed to be placed on a backboard to 

facilitate his transport to the hospital, and Anderson 

instructed the officers to assist in securing Perez to the 

backboard by sitting on top of him while he was in a prone 

position. 

At first glance, this distinction may seem hollow given 

the general principle that subordinate officers cannot simply 

defer to unlawful orders by their superiors. See, e.g., Baude 

v. Leyshock, 23 F.4th 1065, 1074 (8th Cir. 2022); Kennedy 

v. City of Cincinnati, 595 F.3d 327, 337 (6th Cir. 2010). But 

that is not what happened. The officers did not follow the 

paramedic’s direction because he was their superior. The 

officers followed the paramedic’s direction because he was

called to the scene to provide medical care and transport. 

Indeed, all the officers involved testified that they defer to 

medical personnel that respond to the scene of an emergency 

on medically-related matters. Nothing in Drummond clearly 

establishes that the officers were required to second guess 

the paramedics in their effort to provide medical care. 

Given the specific context of this case, we cannot 

conclude that Drummond put the officers on fair notice that 

their actions—pressing on a backboard on top of a prone 

individual being restrained for medical transport, at the 

direction of a paramedic working to provide medical care—

was unlawful. See Luna, 577 U.S. at 12 (clearly-established 

prong examines “whether the violative nature of particular
PEREZ V. CITY OF FRESNO 15

conduct is clearly established” (quoting al-Kidd, 563 U.S. at 

742)); Sharp v. County of Orange, 871 F.3d 901, 911 (9th 

Cir. 2017) (prior cases must “articulate[] a constitutional rule 

specific enough to alert these deputies in this case that their 

particular conduct was unlawful”).

ii.

Alternatively, Plaintiffs argue that, regardless of whether

a specific constitutional violation was clearly established,

the officers are not entitled to qualified immunity because 

their conduct was obviously unconstitutional. They contend

that it was obvious that the officers could not lawfully

“compress Perez under a board, disregard his statement that 

he could not breathe, and apply downward pressure to the 

board until he asphyxiated and died.” 

In the absence of analogous case law, a plaintiff can 

nevertheless surmount the clearly-established-law

requirement by demonstrating instead that the constitutional

violation was obvious. See O’Doan v. Sanford, 991 F.3d 

1027, 1044 (9th Cir. 2021). An “obvious case” is one where 

the officers’ conduct was clearly unlawful. Wesby, 583 U.S.

at 64. As we have recognized, such cases are extraordinarily

“rare” and “especially problematic in the FourthAmendment context.” O’Doan, 991 F.3d at 1044 (citations 

omitted). 

The same facts that distinguish this case from 

Drummond also demonstrate that the officers’ conduct was 

not obviously unconstitutional. A paramedic concluded that 

Perez needed to be restrained so that he could be transported

to a hospital and directed the officers involved to help attach 

Perez to a backboard while he was laying prone, including 

by sitting on the backboard. Under the circumstances, it was

not obvious that applying the backboard in this manner—as 
16 PEREZ V. CITY OF FRESNO

directed by a medical professional trained to respond in 

emergency situations—would violate the Constitution. See 

id. Thus, we disagree that the obviousness “exception to the 

specific-case requirement” applies here. Sharp, 871 F.3d at 

912.

iii.

Finally, Plaintiffs contend that the officers are not 

entitled to qualified immunity because they departed from 

their training. Plaintiffs rely on the Supreme Court’s recent 

decision in Lombardo v. City of St. Louis, 594 U.S. 464 

(2021) (per curiam).

5 In Lombardo, police officers arrested 

Nicholas Gilbert and put him in a holding cell. Id. at 465. An 

officer observed Gilbert attempting to hang himself. Id. In 

response, several officers entered the cell, and a struggle 

ensued. Id. The officers restrained Gilbert in a prone position 

and placed pressure on his limbs, back, and torso. Id. at 465–

66. Gilbert pleaded for the officers to stop. Id. at 466. After 

struggling in that position for fifteen minutes, Gilbert 

stopped breathing and died. Id.

Gilbert’s parents sued, and the district court granted 

summary judgment to the officers “because they did not 

violate a constitutional right that was clearly established at 

the time of the incident.” Id. “The Eighth Circuit affirmed on 

different grounds, holding that the officers did not apply 

unconstitutionally excessive force.” Id. The Supreme Court 

concluded that the Eighth Circuit was “unclear [as to] 

5 Plaintiffs also cite Cal. Gov’t Code § 7286.5, which prohibits lawenforcement agencies from “authoriz[ing] techniques or transport 

methods that involve a substantial risk of positional asphyxia.” This 

section, however, was not enacted until September 2021—four years 

after the events of this lawsuit. See Assemb. B. 490, 2021–2022 Leg.,

Reg. Sess. (Cal. 2021).
PEREZ V. CITY OF FRESNO 17

whether [it] thought the use of a prone restraint . . . is per se

constitutional so long as an individual appears to resist 

officers’ efforts to subdue him.” Id. at 467. Because the 

Eighth Circuit failed to consider evidence such as officer 

training and police guidance regarding prone restraint, and 

instead may have applied a per se rule, the Supreme Court 

vacated and remanded for further inquiry into the facts and 

circumstances of the case. Id. at 467–68. 

Plaintiffs argue that, as in Lombardo, the evidence here

demonstrates that “there is well-known police guidance” that 

advises officers to remove individuals from their stomachs

once they are handcuffed and because the officers did not 

follow this guidance, qualified immunity was inappropriate. 

Contrary to Plaintiffs’ argument, Lombardo does not 

establish that any violation of police policy or guidance is, 

in and of itself, sufficient to deny qualified immunity. 

Indeed, the Lombardo Court “express[ed] no view as to 

whether the officers used unconstitutionally excessive force 

or, if they did, whether Gilbert’s right to be free of such force 

in these circumstances was clearly established at the time.”

Id. at 468. The Court took issue only with the Eighth 

Circuit’s failure to consider evidence of police training and 

guidance on prone restraint when assessing the 

reasonableness of the officers’ actions. Id. at 467–68. As we 

have explained, official training and guidance can influence 

the qualified-immunity analysis, but they are not 

determinative. Vazquez v. County of Kern, 949 F.3d 1153, 

1164–65 (9th Cir. 2020). “Even if an officer acts contrary to 

[his] training . . . , that does not itself negate qualified 

immunity where it would otherwise be warranted.” City & 

County of San Francisco v. Sheehan, 575 U.S. 600, 616 

(2015).
18 PEREZ V. CITY OF FRESNO

While Plaintiffs present evidence that both FPD and 

FCSO train their officers not to leave an individual laying on 

his stomach once secured, Plaintiffs do not point to any 

policy prohibiting such restraint to facilitate medical 

treatment. In fact, four of the seven officers involved in the 

incident testified that they are trained to defer to paramedics

on issues of treatment and transport when they assist in an 

emergency.

6 Thus, Plaintiffs have not presented evidence 

that the officers departed from their training under these 

specific circumstances. More important, however, for the 

reasons previously explained, the officers are entitled to 

qualified immunity because the law did not clearly establish, 

nor did the context of this case make it obvious, that applying 

pressure to the backboard at Anderson’s direction was 

unlawful. Even if the officers contravened their training, that 

does not defeat qualified immunity in this case. See id.

B. The Paramedic

We next address whether Anderson is entitled to 

qualified immunity for his role in Perez’s death. Because we 

conclude that the law did not clearly establish at the time of 

the events at issue that a paramedic restraining a person in 

order to secure the person for medical transport could be held 

liable for a constitutional violation under either the Fourth or 

Fourteenth Amendment, we conclude that Anderson is 

entitled to qualified immunity. See Wesby, 583 U.S. at 63–

64 (clearly established question must be specific to the 

context of the case). We do not address the separate question 

6 The other three officers also testified that they defer to paramedics’ 

judgment but that they do so based on personal experience or because 

the situation is medical. 
PEREZ V. CITY OF FRESNO 19

of whether Anderson’s actions constituted a constitutional 

violation.

As the district court noted, there are few cases applying 

Fourth and Fourteenth Amendment standards to paramedics 

responding to medical emergencies. And we have not found, 

nor have Plaintiffs cited, any Supreme Court or Ninth Circuit 

precedent establishing constitutional liability under similar 

circumstances. However, some of our sister circuits have

addressed this context. For example, the Sixth Circuit has 

held that whether a paramedic is “entitled to qualified 

immunity depends on whether [he] acted in a lawenforcement capacity or in an emergency-medical-response 

capacity when engaging in the [complained-of] conduct.” 

McKenna v. Edgell, 617 F.3d 432, 439–40 (6th Cir. 2010); 

Peete v. Metro. Gov’t of Nashville & Davidson County, 486 

F.3d 217, 221 (6th Cir. 2007). That court reasoned that if the 

paramedic was acting in a law-enforcement capacity when 

he engaged in the challenged conduct, then the plaintiff’s 

claim is properly raised under § 1983, but if the paramedic 

was acting in a medical capacity, then the plaintiff’s claim 

properly sounds in medical malpractice. See McKenna, 617 

F.3d at 440. 

In Peete, the Sixth Circuit reversed the denial of 

qualified immunity for paramedics who restrained and 

applied pressure to an unconscious patient in a prone 

position, thereby causing the patient’s death. 486 F.3d at 

220. That court determined that “there is no federal case 

authority creating a constitutional liability for the 

negligence, deliberate indifference, and incompetence” of 

paramedics where their “purpose is to render solicited aid in 

an emergency rather than to enforce the law, punish, deter, 

or incarcerate.” Id. at 221. The Sixth Circuit likewise 

explained in McKenna that if there is any constitutional 
20 PEREZ V. CITY OF FRESNO

“right to be free from . . . unintentional conduct by medicalemergency responders . . . , it is not clearly established.” 617 

F.3d at 440. 

Similarly, the Seventh Circuit granted qualified 

immunity to a paramedic who sedated an injured arrestee 

before taking the arrestee to the hospital because it was not 

clearly established that such conduct violates the Fourth 

Amendment. Thompson v. Cope, 900 F.3d 414, 422–24 (7th 

Cir. 2018). In Thompson, a paramedic was dispatched to the 

scene of an animal bite, but when he arrived, he discovered 

that the bite came from a human—Dusty Heishman. Id. at

418. An officer asked the paramedic to examine Heishman 

before treating the bite patient. Id. The paramedic suspected 

that Heishman was under the influence of drugs and injected 

him with a sedative before placing him in an ambulance. Id.

Once in the ambulance, the paramedic determined that 

Heishman was not breathing and had no pulse, and despite 

the paramedic restoring Heishman’s heartbeat, he died eight 

days later. Id. The district court granted the paramedic 

qualified immunity against Heishman’s estate’s deliberateindifference claim but denied qualified immunity on the 

excessive-force claim. Id. at 419. The Seventh Circuit 

reversed because the “[c]ase law did not (and does not) 

clearly establish that a paramedic can violate a patientarrestee’s Fourth Amendment rights by exercising medical 

judgment to administer a sedative in a medical emergency.” 

Id. at 417. The fact that the paramedic was “confronting a 

patient suffering from a life-threatening emergency” took 

the “case out of the realm of clearly established Fourth 

Amendment law.” Id. at 424. But the court noted that the 

question would be more difficult if the paramedic sedated 

someone at the direction of law enforcement when there was 

no medical purpose for sedation. Id. at 424 n.2.
PEREZ V. CITY OF FRESNO 21

More recently, the Eighth Circuit confronted similar 

claims in Buckley v. Hennepin County, 9 F.4th 757 (8th Cir. 

2021). There, paramedics responded to an emergency call 

from police concerning a woman who had been drinking and 

was threatening self-harm. Id. at 759. The paramedics 

determined that the woman needed to be transported to the 

hospital, but she refused. Id. Despite her objections, the 

officers and paramedics restrained her and carried her to the 

ambulance, where the paramedics administered a sedative. 

Id. The woman immediately developed respiratory distress 

and was intubated. Id. at 759–60. The district court 

dismissed the woman’s claims against the paramedics, and 

the Eighth Circuit affirmed. Id. at 760, 765. The court 

determined that when the paramedics injected the woman, 

they were acting in a medical capacity. Id. at 761. The court 

then concluded that the paramedics’ actions were not 

unreasonable given the woman’s “intoxicated, suicidal, 

[and] semi-conscious” state. Id. at 762. Further, the court 

explained that the paramedics’ attempt to transport the 

woman in need of medical care to a hospital demonstrated 

concern, not indifference, for her well-being. Id. at 764. The 

fact that the paramedics sedated the woman to protect her, as 

well as themselves, from harm did not change the court’s 

analysis. Id.

Here, Plaintiffs agree that “paramedics who act with a 

medical purpose backed up by plausible medical judgment” 

are entitled to qualified immunity, even if they make a 

mistake. But they argue that Anderson “went beyond 

providing ‘medical care’” by assisting and directing law 

enforcement in restraining Perez. Indeed, Plaintiffs contend 
22 PEREZ V. CITY OF FRESNO

that Anderson’s actions do not constitute medical care at all 

because he caused Perez’s death.7 We disagree.

Plaintiffs did not present evidence from which a 

reasonable jury could find that Anderson was acting in a lawenforcement capacity during his interaction with Perez. See 

McKenna, 617 F.3d at 441–43 (state actor’s role is generally 

a question for the jury but courts may answer the question 

“as a matter of law when a reasonable jury could come to but 

one conclusion”); cf. Johnson, 79 F.4th at 1003 (existence of 

probable cause is generally a jury question but courts may 

decide the issue “if ‘no reasonable jury could find an absence 

of probable cause under the facts’” (quoting Gasho v. United 

States, 39 F.3d 1420, 1428 (9th Cir. 1994))). The paramedics

arrived on the scene in response to a medical-emergency call 

reporting an individual who was a danger to himself and 

others. Their actions throughout the incident were taken for 

the purpose of transporting Perez to the hospital for medical 

treatment. Anderson determined that before Perez could be 

transported in the ambulance, he needed to be secured to a 

backboard. And Anderson directed the officers to assist in 

restraining Perez while he was lying on the ground so that he 

7 Plaintiffs also argue that because Anderson conceded at summary 

judgment that he was acting under color of law, the district court should 

have treated him like a law-enforcement officer and denied qualified 

immunity. Plaintiffs are mistaken. Whether an individual acts under 

color of state law is a different inquiry than whether an individual is 

entitled to qualified immunity. The color-of-law question simply asks 

whether a defendant “exercised power possessed by virtue of state 

law”—a prerequisite “[t]o state a claim under § 1983.” West v. Atkins, 

487 U.S. 42, 48–49 (1988) (internal quotation marks omitted) (quoting 

United States v. Classic, 313 U.S. 299, 326 (1941)). The qualifiedimmunity question, on the other hand, asks whether an individual who 

acted under color of state law to deprive another of his federal rights is 

nevertheless immune from suit. See O’Doan, 991 F.3d at 1035–36.
PEREZ V. CITY OF FRESNO 23

could be attached to the backboard. In the over 15-minute 

video of the incident, there is no indication from Anderson, 

or any of the officers, that Perez was ever restrained so that 

he could be arrested or punished. Rather, the comments of 

all involved during the incident were focused on Perez’s 

agitated state and trying calm him down so that he could be 

transported for treatment. After the backboard was secured, 

Anderson and the other paramedics turned Perez over in 

preparation for placing him on the gurney and determined 

that he did not have a pulse. While the impact of these 

actions is heart-rending, and Anderson’s conduct may have 

fallen well short of any reasonable standard of care, the 

record establishes that he was trying to render medical aid to 

Perez.8 Cf. Peete, 486 F.3d at 222 (concluding that 

paramedics who asphyxiated their unconscious patient

“were attempting to help him, although they badly botched 

the job”).

Because we conclude that Anderson was acting in a 

medical capacity during the tragic event at issue in this case, 

we also conclude that he is entitled to qualified immunity. 

There is no precedent imposing constitutional tort liability 

on a paramedic who attempts to render emergency medical 

aid to a patient by restraining him in preparation for a 

medical transport. The district court therefore did not err in 

granting summary judgment in favor of Anderson.

8 Plaintiffs contend that “Anderson’s initial denial, under oath, that he 

gave the instruction” to sit on the backboard undermines any conclusion 

that he was attempting to provide medical aid to Perez. We are 

unpersuaded by this argument. Our focus in determining Anderson’s role

is on the events that occurred on May 10, 2017. See McKenna, 617 F.3d 

at 441. That Anderson initially claimed that he did not recall giving the 

instruction and could not recognize his own voice in the video does not 

undercut the evidence from the day of the event. 
24 PEREZ V. CITY OF FRESNO

C. Monell Claims

Finally, we consider Plaintiffs’ Monell claims against the 

City and the County based on a failure-to-train theory. 

Municipalities and local governments can be sued under 

§ 1983 for constitutional deprivations caused by 

governmental policy or custom. Monell, 436 U.S. at 690. 

Respondeat superior liability, however, does not exist under 

§ 1983. Id. at 691. “In limited circumstances, a local 

government’s decision not to train certain employees about 

their legal duty to avoid violating citizens’ rights may rise to 

the level of an official government policy for purposes of 

§ 1983.” Connick v. Thompson, 563 U.S. 51, 61 (2011).

To prevail on a failure-to-train theory, a plaintiff must 

demonstrate that a municipality’s failure to train “amount[s] 

to ‘deliberate indifference to the rights of persons with 

whom the [untrained employees] come into contact.’” Id.

(second alteration in original) (quoting City of Canton v. 

Harris, 489 U.S. 378, 388 (1989)). Deliberate indifference 

is a high legal standard, “requiring proof that a municipal 

actor disregarded a known or obvious consequence of his 

action.” Id. (quoting Bd. of County Comm’rs of Bryan 

County v. Brown, 520 U.S. 397, 410 (1997)). Municipal 

liability “is at its most tenuous where a claim turns on a 

failure to train.” Id. Ordinarily, “[a] pattern of similar 

constitutional violations,” rather than proof of a single 

incident, is “necessary to demonstrate deliberate 

indifference.” Id. at 62–63 (internal quotation marks 

omitted) (quoting Brown, 520 U.S. at 409). Nonetheless, 

single-incident liability may exist in the rare case where “the 

unconstitutional consequences of failing to train” are 

“patently obvious.” Id. at 63–64. Merely negligent training 

is insufficient to support a Monell claim. Dougherty v. City 

of Covina, 654 F.3d 892, 900 (9th Cir. 2011).
PEREZ V. CITY OF FRESNO 25

Plaintiffs contend that the following evidence creates a 

triable issue on their failure-to-train claim: the facts of the 

incident, testimony regarding the officers’ unfamiliarity with 

the dangers of restraint asphyxia, and Plaintiffs’ expert 

report describing the inadequacies in FPD’s and FCSO’s

training on the risks of prone restraint. But what is missing 

is any evidence pointing to a pattern of excessive-force 

incidents by untrained officers that resulted in the outcome 

here—restraint asphyxia.

9 Accordingly, to establish a 

question of fact regarding municipal liability, Plaintiffs 

needed to show that the unconstitutional consequences of 

failing to train officers on restraint asphyxia were “patently

obvious.” Thompson, 563 U.S. at 64. They did not.

As an initial matter, Plaintiffs acknowledge that FPD and 

FCSO maintain policies to prevent restraint and positional 

asphyxia. While two FPD officers testified that they were not 

trained on prone-restraint asphyxia, a third FPD officer 

testified that he was trained and was taught to monitor a 

prone individual’s breathing. Likewise, a FCSO deputy

stated that it is unlikely that an individual would asphyxiate 

from downward pressure while in a prone restraint but 

nevertheless explained that he was trained to monitor for 

signs of restraint asphyxia. The possible inadequate training 

of two FPD officers about the risks of restraint asphyxia is 

insufficient to support a Monell claim. See Harris, 489 U.S. 

at 390–91 (“That a particular officer may be unsatisfactorily 

trained will not alone suffice to fasten [municipal] 

9 Because Plaintiffs do not challenge the district court’s finding that no 

constitutional violation resulted from the officers’ other uses of force, 

see supra note 3, Monell liability cannot flow from those acts. See 

Lockett v. County of Los Angeles, 977 F.3d 737, 741 (9th Cir. 2020)

(“Monell claims . . . require a plaintiff to show an underlying 

constitutional violation.”). 
26 PEREZ V. CITY OF FRESNO

liability . . . , for the officer’s shortcomings may have 

resulted from factors other than a faulty training program. It 

may be, for example, that an otherwise sound program has 

occasionally been negligently administered.” (citations 

omitted)).

Additionally, to the extent Plaintiffs rely on the officers’ 

noncompliance with their training, their theory of liability 

against the City and the County impermissibly rests on the 

mere existence of an employer-employee relationship, rather 

than a governmental policy or custom. See Monell, 436 U.S. 

at 691–92 (explaining that a municipality is not liable merely 

because an employee commits a constitutional violation).

Even “adequately trained officers occasionally make 

mistakes; the fact that they do says little about the training 

program or the legal basis for holding the city [or county] 

liable.” Harris, 489 U.S. at 391. Because Plaintiffs presented 

insufficient evidence to establish deliberate indifference, we 

affirm the district court’s dismissal of Plaintiffs’ Monell 

claims. 

* * * * *

Joseph Perez’s death was a tragedy. But that alone does 

not dictate the outcome of this case. Because the lawenforcement officers’ actions that Plaintiffs contend led to 

Perez asphyxiating were taken at the direction of a medical 

professional who was trying to provide medical care, both 

the officers and the paramedic are entitled to qualified 

immunity. The district court also properly granted summary 

judgment against Plaintiffs’ Monell claims because 

Plaintiffs presented insufficient evidence that the City and 

the County were deliberately indifferent to their duty to 

properly train their law-enforcement officers. 

AFFIRMED.
PEREZ V. CITY OF FRESNO 27

S.R. THOMAS, Circuit Judge, concurring in part and 

dissenting in part:

I concur in the majority’s analysis of the paramedic 

liability and failure-to-train claims, and join in affirming the 

district court’s grant of summary judgment for Anderson, 

AA, FSCO, and FPD. However, I respectfully disagree with 

the conclusion that the law governing the conduct of the 

individual officer defendants (“Officers”) was not “clearly 

established” in 2017. Extensive federal case law, 

departmental guidance, and common sense gave Officers 

fair warning that applying continuous force to the back of a 

prone person who claims he cannot breathe is 

constitutionally excessive. Any argument that Officers’ 

continued force was nonetheless “reasonable” under the 

circumstances turns on disputed issues of material fact—not 

confusion about “what the law requires.” Saucier v. Katz, 

533 U.S. 194, 205 (2001). Therefore, I respectfully dissent 

in part.

I

Fourteen years before Joseph Perez was killed, we held 

that police officers violated the clearly established rights of 

Brian Drummond when they “crushed [him] against the 

ground” while he was laying on his stomach, handcuffed and 

awaiting an ambulance. Drummond v. City of Anaheim, 343 

F.3d 1052, 1061 (9th Cir. 2003). Like Perez, Drummond 

“told the officers he could not breathe,” but they continued 

to press on his back anyway. Id. at 1054.

Applying the factors for excessive force from Graham v. 

Connor, 490 U.S. 386, 396 (1989), we concluded that “only 

minimal force” was permitted “once Drummond was 

handcuffed and lying on the ground.” Drummond, 343 F.3d 

at 1058. “Balancing the severe force against the minimal 
28 PEREZ V. CITY OF FRESNO

need,” id., we rejected the officers’ qualified immunity 

defense:

The officers—indeed, any reasonable 

person—should have known that squeezing 

the breath from a compliant, prone, and 

handcuffed individual despite his pleas for air 

involves a degree of force that is greater than 

reasonable. 

Id. at 1059. While there was “no federal case directly on 

point” at the time, we held that existing decisional law, local 

newspaper publicity about compression asphyxia, and 

departmental training all contributed to putting the officers 

“on notice” that the force they used “amounted to a 

constitutional violation.” Id. at 1062; see also Vasquez v. 

Cnty. of Kern, 949 F.3d 1153, 1164–65 (9th Cir. 2020) 

(analyzing officer training and departmental guidance as 

indicia of obviousness). 

Between 2003 and 2017, six of our sister circuits reached 

a similar conclusion concerning use of prone compression 

on a subject who has been restrained. McCue v. City of 

Bangor, Maine, 838 F.3d 55, 64–65 (1st Cir. 2016); Rogoz 

v. City of Hartford, 796 F.3d 236, 247–48 (2d Cir. 2015); 

Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008);

Abdullahi v. City of Madison, 423 F.3d 763, 775 (7th Cir. 

2005); Champion v. Outlook Nashville, Inc., 380 F.3d 893, 

903 (6th Cir. 2004); Bornstad v. Honey Brook Twp., 211 F. 

App’x 118, 124 (3d Cir. 2007) (mem.). During this same 

period, we repeatedly held that Drummond supplied clearly 

established law for cases involving prone restraint by law 

enforcement, notwithstanding slight factual variations, see 

Zelaya v. Las Vegas Metro. Police Dep’t, 682 F. App’x 565, 
PEREZ V. CITY OF FRESNO 29

567 (9th Cir. 2017) (mem.); Abston v. City of Merced, 506 

F. App’x 650, 652 (9th Cir. 2013) (mem.); Tucker v. Las 

Vegas Metro. Police Dep't, 470 F. App’x 627, 629 (9th Cir. 

2012) (mem.); Arce v. Blackwell, 294 F. App’x 259, 261 (9th 

Cir. 2008) (mem.), as did lower courts in the Ninth Circuit. 

See, e.g., Garlick v. Cnty. of Kern, 167 F. Supp. 3d 1117, 

1155 (E.D. Cal. 2016); Brown v. City & Cnty. of San 

Francisco, No. 11-02162, 2014 WL 1364931 at *14 (N.D. 

Cal. Apr. 7, 2014); Madrid v. City of Fresno, No. 108 CV 

00098, 2011 WL 13243581 at *13 (E.D. Cal. Feb. 23, 2011).

Drummond and its progeny provide law enforcement 

with notice of a common-sense rule: it is unconstitutional to 

place prolonged body weight force on the back of prone and 

unarmed individual who cannot meaningfully resist. See 

Drummond, 343 F.3d at 1059; Abston, 506 Fed. App’x at 

653. The law is especially clear where, as here, the prone 

individual verbally communicates that he cannot breathe. 

Drummond, 343 F.3d at 1061; Arce, 294 F. App’x at 261.

II

The majority acknowledges the “disturbing[]” 

similarities between this case and Drummond. In both cases, 

the police encounter began on the side of a road after officers 

were summoned to care for an individual acting erratically 

and in need of psychiatric care. Like Drummond, Perez was 

unarmed and initially posed no threat to officer safety, but 

was handcuffed for his own protection from nearby traffic. 

343 F.3d at 1054. Once handcuffed, both men were 

subsequently tackled to the ground and held on their 

stomachs before the ambulance arrived. Id. Like the 

defendants in Drummond, law enforcement in Fresno 

received specific guidance warning of the risks of prone 
30 PEREZ V. CITY OF FRESNO

restraints and positional asphyxia, which Officers seem to 

have forgotten or ignored. 343 F.3d at 1059.

Nevertheless, the majority purports to distinguish this 

case based on the arrival of a paramedic on the scene, 

approximately ten minutes into the prone restraint. This is a 

hollow distinction that turns improperly on unresolved 

questions of fact. To hold otherwise disregards “the 

Supreme Court’s admonition that ‘officials can still be on 

notice that their conduct violates established law even in 

novel factual circumstances.’” Torres v. City of Madera, 

648 F.3d 1119, 1129 (9th Cir. 2001) (quoting Hope v. Pelzer, 

536 U.S. 730, 741 (2002)). 

The majority’s comparison to Drummond reflects 

Officers’ version of events, in which the asphyxiation 

occurred as a result of reasonable but misguided deference 

to the direction of medical personnel. This view 

impermissibly resolves several factual questions in favor of 

Officers, rather than Perez. Saucier, 553 U.S. at 201. First, 

the majority assumes that it was the paramedic’s instruction 

that caused Officers to employ unconstitutional force. This 

issue is contestable, especially since the instruction occurred 

some fifteen minutes after Officers began pressing on 

Perez’s back, under conditions nearly identical to those in 

Drummond. The degree to which that initial pressure 

contributed to Perez’s death is disputed.1 As is the degree to 

1 While the district court’s analysis focused “mostly” on the quantum of 

pressure applied after the placement of the backboard, the court also 

recognized that the “struggles and pressure leading up to the placement 

of the backboard” may have played a contributing role. In crediting the 

coroner’s finding that the cause of death was “compression asphyxia 

during restraint,” the court never indicated that only the period after the 
PEREZ V. CITY OF FRESNO 31

which the paramedic began directing the scene and Officers 

“did defer” after the ambulance arrived. 

Second, the majority accepts that Officers’ decision to 

keep pressing was “reasonable” because a paramedic was 

present. Whether this decision was indeed reasonable turns 

on factual questions, such as Officers’ perception of Perez’s 

struggle to breathe and the substance of Officers’ training. 

“Because the reasonableness standard ‘nearly always 

requires a jury to sift through disputed factual 

contentions . . . summary judgment . . . in excessive force 

cases should be granted sparingly.’” Torres, 648 F.3d at 

1125 (quoting Santos v. Gates, 287 F.3d 846, 853 (9th 

Cir.2002)). “This principle applies with particular force 

where,” as here, “the only witness other than [the 

defendants] was killed during the encounter.” Gonzalez v. 

City of Anaheim, 747 F.3d 789 (9th Cir. 2014) (en banc).

Even if the paramedic did direct the application of lethal 

force, police officers are not immunized from obviously 

unconstitutional conduct merely because they were 

following instructions. See California Att’ys for Crim. Just. 

v. Butts, 195 F.3d 1039, 1050 (9th Cir. 1999) (“a reasonable 

police officer should have known that this conduct was 

improper . . . whether or not the conduct was endorsed by 

training materials”); Grossman v. City of Portland, 33 F.3d 

1200, 1209 (9th Cir.1994) (“Where a statute authorizes 

official conduct which is patently violative of fundamental 

placement of the backboard was relevant. To the contrary, the district 

court quoted the coroner’s description of a “ten minute restraining 

process”—a duration that clearly extends beyond the time the backboard 

was in place. The majority’s assertion that “the only use of force that 

Plaintiffs challenge is the restraint that occurred after the paramedics 

responded” is unfounded.
32 PEREZ V. CITY OF FRESNO

constitutional principles, an officer who enforces that statute 

is not entitled to qualified immunity”); Kennedy v. City Of 

Cincinnati, 595 F.3d 327, 337 (6th Cir. 2010) (“[S]ince 

World War II, the ‘just following orders’ defense has not 

occupied a respected position in our jurisprudence, and 

officers in such cases may be held liable under § 1983 if 

there is a reason why any of them should question the 

validity of that order.”) (quoting O’Rourke v. Hayes, 378 

F.3d 1201, 1210 n.5 (11th Cir. 2004)).

We have never held that compliance with an 

unconstitutional order should be treated differently just 

because the order comes from someone other than a direct 

supervisor. To the contrary, we have held that constitutional 

liability extends to all “integral participants” in the 

constitutional violation, including those who merely fail to 

intercede in unconstitutional conduct before them. See 

Green v. City & Cnty of San Francisco, 751 F.3d 1039, 1051 

(9th Cir. 2014); Tobias v. Arteaga, 996 F.3d 571, 583–84 

(9th Cir. 2021).

III

In sum, Drummond clearly establishes the law in this 

case. The Officers’ argument that their conduct was 

nonetheless reasonable requires us to decide factual 

questions that should be resolved by a jury. As such, I 

respectfully dissent from the affirmation of summary 

judgment for the individual officer defendants.