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Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ROY NELSON, et al.,

Plaintiffs,

v.

CITY OF HAYWARD, et al.,

Defendants.

Case No. 16-cv-07222-SK 

ORDER DENYING AND PARTIALLY 

GRANTING CROSS-MOTIONS FOR 

SUMMARY JUDGMENT

Regarding Docket Nos. 78, 82, 83, 84

This matter comes before the Court upon consideration of the parties’ cross-motions for

summary judgment. Having carefully considered the parties’ papers, relevant legal authority, and 

the record in the case, and having had the benefit of oral argument, the Court hereby DENIES the 

motion for summary judgment by Roy Nelson, III and Orenell Stevens (“Plaintiffs”) EXCEPT as 

to Defendants’ qualified immunity claim and likewise DENIES the motion for summary judgment 

by the City of Hayward and police officers Michelle Hall, Nathanael Shannon, Matthew McCrea, 

John Padavana, and Lloyd McKee, in their individual and official capacities as Police Officers for 

the City of Hayward (“Defendants”)1 EXCEPT as to three of Plaintiffs’ four theories of claims for 

liability under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978). 

The Court GRANTS summary judgment in favor of Plaintiffs as to Defendants’ claim of qualified 

immunity; Defendants may not raise this defense at trial. The Court GRANTS summary judgment 

in favor of Defendant City of Hayward as to Plaintiffs’ Monell claims premised on ratification, 

failure to discipline, and unconstitutional practice. The Court sets forth its reasoning below.

/ / /

 

1

 Defendants Michelle Hall, Nathanael Shannon, Matthew McCrea, John Padavana, and 

Lloyd McKee are referred to as the “individual officer Defendants.” The City of Hayward is 

referred to as the “City,” and the City of Hayward Police Department, associated with the City but 

not an independent Defendant, is referred to as the “Department.”

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BACKGROUND

On December 19, 2015 at 1:06 a.m., the Hayward Police Department received a call for 

help from Patsy Nelson Taft. (Dkt. 78-11 (Buelna Dec. Ex. 11).) The initial dispatch reported

that the call involved an unwanted guest at a private residence. (Dkt. 82-2 (Rollan Dec. Ex. 2 at 

21:15).) Within ten to fifteen minutes, several officers had responded to the call, arriving at Taft’s 

residence on Ironwood Court. (Dkt. 78-1 (Buelna Dec. Ex. 1 at 18:6, 12-13); Dkt. 78-11 (Buelna

Dec. Ex. 11).) Officer Lloyd McKee was first to arrive, closely followed by Officers Michelle

Hall and Nathanael Shannon. (Dkt. 78-2 (Buelna Dec. Ex. 2 at 22:4-14); Dkt. 78-1 (Buelna Dec. 

Ex. 1 at 18:6, 12-13).) Upon arriving at the residence, McKee spoke with Taft, who informed him 

that she had called the police because her ex-husband, who was staying on her couch that night, 

was in the midst of a mental health episode. (Dkt. 78-2 (Buelna Dec. Ex. 2 at 23:2-19).) McKee 

immediately recognized Taft’s ex-husband, Roy Nelson, when he saw him coming down the 

stairs. (Dkt. 78-2 (Buelna Dec. Ex. 2 at 24:22-25).).

According to McKee, Nelson had been “well known” to the police department in the 

1990s. (Dkt. 78-2 (Buelna Dec. Ex. 2 at 24:11-21).) And as McKee informed Hall when she 

arrived at the residence, “he remembered Mr. Nelson from selling drugs and that he threw another 

officer off of a second story building.” (Dkt. 82-1 (Rollan Dec. Ex. 1 at 20:13-22).) Nelson was 

“approximately 6’4, over three hundred pounds” on the night of December 19, 2015. ((Dkt. 82-1 

(Rollan Dec. Ex. 1 at 20:4).) Though he had always been a “stocky, strong person,” the individual 

officer Defendants recognized in 2015 that Nelson was “out of shape.” (Dkt. 78-2 (Buelna Dec. 

Ex. 2 at 25:9-10).) McKee recalls that Nelson was wide-eyed and silent descending the stairs. 

(Dkt. 78-2 (Buelna Dec. Ex. 2 at 28:12-15).) It was immediately clear to him that Nelson was 

having a mental health problem that warranted an evaluation of whether he should be detained 

under Cal. Welf. & Inst. Code § 5150 because he posed a danger to himself or others or was 

gravely disabled: “there was nothing to cause fear. He just had that far away stare.” (Dkt. 78-2 

(Buelna Dec. Ex. 2 at 28:9-29:14).) McKee continued speaking with Taft while Hall spoke with 

Nelson to gather information to substantiate placing him under a 5150 psychiatric hold. (Dkt. 78-

2 (Buelna Dec. Ex. 2 at 28:3-8).)

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Hall was a new officer undergoing phase four of her field training on December 19, 2015, 

and she was riding with her field training officer, Shannon. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 14:1-

9).) Upon arrival at Taft’s Ironwood Court residence, Hall requested a “Code 2” ambulance for a 

5150 hold and began gathering information to substantiate the hold. (Dkt. 82-1 (Rollan Dec. Ex. 1 

at 22:5-13).) Taft informed Hall that Nelson had schizophrenic tendencies and had just been 

released from John George Psychiatric Hospital. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 22:22-25; 23:1-

11).) After being discharged from the hospital, Nelson had taken a taxi to Taft’s house, and he 

had left all of his medications and clean clothing with the taxi driver, as collateral for the ride. 

(Dkt. 78-1 (Buelna Dec. Ex. 1 at 38:21-25).) Taft allowed Nelson to sleep on the couch, but he 

began yelling in the middle of the night, hallucinating that their 23-year-old son had been 

kidnapped and that there were people on the roof of the house. (Dkt. 78-1 (Buelna Dec. Ex. 1 at 

23:17-21; 24:1-18).)

Hall observed that Nelson “seemed disoriented, not focused,” but he was able to follow her 

directive that he remove his hands from his pockets and give answers to her questions about his 

mental state. (Dkt. 78-1 (Buelna Dec. Ex. 1 at 25:2-6).) Hall walked Nelson over to her patrol 

car. (Dkt. 78-1 (Buelna Dec. Ex. 1 at 25:7-8).) She patted him down to check for weapons; he 

had none. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 31:18-25).) Nelson voluntarily got into the backseat of 

the patrol car, and Hall did not handcuff him beforehand because he was nonaggressive and she 

had no reason to believe he would be violent. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 1-14).) Inside the 

car, with Hall in the front seat and Nelson in the back, Nelson equivocated when asked if he 

wanted to hurt himself or others. (Dkt. 78-1 (Buelna Dec. Ex. 1 at 25: 7-15).) Hall concluded 

from his responses and his demeanor that he was a danger to himself and gravely disabled. (Dkt. 

78-1 (Buelna Dec. Ex. 1 at 25:25).) She completed the 5150 hold form and intended to wait for 

the Code 2 ambulance she had called when she first arrived on the scene. (Dkt. 78-1 (Buelna Dec. 

Ex. 1 at 26:20-27:7).)

The ambulance Hall called was delayed; with Nelson in the back of Hall’s patrol car, the 

officers waited for between thirty minutes and an hour. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 41:11-

22); Dkt. 78-2 (Buelna Dec. Ex. 2 at 31:19-23).) In the back of the car, even with the windows 

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cracked, Nelson was sweating profusely. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 39:9-18).) He told the 

officers that he did not want to leave and he did not want the ambulance. (Dkt. 82-1 (Rollan Dec. 

Ex. 1 at 39:16-18).) He wanted to get out of the car. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 40:8).) He 

had not taken his medications since the previous day. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 40:12-14).) 

He begged Hall not to kill him “in a very soft voice.” (Dkt. 82-1 (Rollan Dec. Ex. 1 at 42:4-8).) 

He began hallucinating again, calling out for “Petey” and his uncle, unable to clarify his comments 

to Hall. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 42:14-18).)

During the wait, McKee informed Hall of his previous knowledge of Nelson. (Dkt. 82-1 

(Rollan Dec. Ex. 1 at 41:4-10).) Also during the wait, Nelson began kicking the door of the patrol 

car and the bars on the car windows. (Dkt. 78-2 (Buelna Dec. Ex. 2 at 51:23-52:13).) Fearing he 

was close to opening the door, McKee got out his taser and pointed it at Nelson but did not shoot 

it. (Dkt. 78-2 (Buelna Dec. Ex. 2 at 51:23-52:13).)

Shannon and McKee decided to move Nelson to a nearby parking lot at Chabot University. 

(Dkt. 82-1 (Rollan Dec. Ex. 1 at 45:15-17); Dkt. 78-2 (Buelna Dec. Ex. 2 at 31:5-12).) They 

thought that remaining near Taft’s residence might be agitating Nelson, and they wanted to find a 

better lighted, less residential area because they thought they might have to place Nelson in a fullbody restraining device, called a “WRAP.” (Dkt. 78-1 (Buelna Dec. Ex. 1 at 44:21-45:3). Nelson 

was becoming increasingly agitated inside the patrol car, and given his behavior and his size, the 

officers anticipated needing backup and more space to apply the WRAP device. (Dkt. 78-1 

(Buelna Dec. Ex. 1 at 46:2-14).)

The officers drove to the Chabot parking lot, where Shannon called the supervisor, Officer 

Matthew McCrea, because only supervisors carry the WRAP device and a supervisor must be 

present when the device is deployed. (Dkt. 82-4 (Rollan Dec. Ex. 4 at 30:2-18).) When McCrea 

arrived, he developed a plan to open the driver’s side rear door of the car, apply handcuffs to 

Nelson and proceed with putting on the WRAP Device from there. (Dkt. 82-4 (Rollan Dec. Ex. 4 

at 76:4-13).) McCrea intended to transport Nelson to St. Rose’s hospital in the back of the patrol 

car, given the delay in ambulances, after they placed Nelson in the WRAP device. (Dkt. 82-4 

(Rollan Dec. Ex. 4 at 77:20-22).) Unaware of McCrea’s plan, McKee opened the passenger side 

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rear door of the patrol car, and Nelson exited the car. (Dkt. 78-2 (Buelna Dec. Ex. 2 at 36:19-

37:11).) McCrea was not surprised by Nelson’s exit; however, Hall thought perhaps Nelson had 

escaped from the car by kicking the door. (Dkt. 78-3 (Buelna Dec. Ex. 3 at 81:5-13; Dkt. 82-1 

(Rollan Dec. Ex. 1 at 71:23-72:2).) McCrea told Nelson to get on his knees, and Nelson did so. 

(Dkt. 78-3 (Buelna Dec. Ex. 3 at 83).) Before kneeling, Nelson twisted his upper body back and 

forth, but he ultimately complied with officers. (Dkt. 78-3 (Buelna Dec. Ex. 3 at 83:23-25); Dkt. 

78-2 (Buelna Dec. Ex. 2 at 39:2-5).)

Once Nelson was on the ground, face down and on his stomach, the individual officer

Defendants began applying the WRAP device. (Dkt. 78-3 (Buelna Dec. Ex. 3 at 84:19-21).) 

Officer John Padavana put Nelson’s legs in a figure-four lock, and McCrea went to get the WRAP 

device from his patrol car. (Dkt. 78-3 (Buelna Dec. Ex. 3 at 86:14-16).) The officers straightened 

Nelson’s legs and began applying the device. (Dkt. 78-3 (Buelna Dec. Ex. 3 at 86:17-25).) 

McCrea worked to fasten the ankle strap. (Dkt. 78-3 (Buelna Dec. Ex. 3 at 87:14-16).) McKee 

restrained Nelson’s ankles. (Dkt. 78-2 (Buelna Dec. Ex. 2 at 43:20-21).) Padavana restrained the 

middle portion of Nelson’s legs. (Dkt. 78-2 (Buelna Dec. Ex. 2 at 42:22-23).) Padavana struggled 

to control Nelson’s legs, as Nelson had tensed them once down on the ground. (Dkt. 82-5 (Rollan 

Dec. Ex. 5 at 36:11-15).) Positioned at the top of Nelson’s body, Shannon and Hall placed Nelson 

in handcuffs. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 82:9-83:17).) Shannon, who is 6’3” and weighed 

between 230 and 240 pounds at the time, reports that he restrained Nelson by putting his weight 

on Nelson’s right shoulder. (Dkt. 82-3 (Rollan Dec. Ex. 3 at 84:2-12; 138:21-24).) Hall reports 

that she restrained Nelson by placing her weight “on the left side of his upper body on his back.” 

(Dkt. 82-1 (Rollan Dec. Ex. 1 at 83:23-24); Dkt. 78-5 (Buelna Dec. Ex. 5 at 9:09).) Hall claims 

that she was not applying very much pressure at all to Nelson’s back – just enough to hold him

down if he had reared upward. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 94:7-9).) She also recalls holding 

the neck of Nelson’s sweatshirt to help maintain her control of him. (Dkt. 82-1 (Rollan Dec. Ex. 1 

at 93:18-21).)

As the officers continued to struggle to apply the WRAP device, Hall heard Nelson say 

that he could not breathe. (Dkt. 82-1 (Rollan Dec. Ex. 1 at 88:8-11); Dkt. 78-5 (Buelna Dec. Ex. 5 

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at 9:26).) She told him to relax, and the officers continued applying the device. (Dkt. 82-1 

(Rollan Dec. Ex. 1 at 88:14-16).) Nelson struggled to roll to his side; the officers rolled him back 

onto his stomach and continued applying the WRAP device, with Shannon’s knee once again 

across Nelson’s upper back and Hall’s hand on his hood. (Dkt. 78-5 (Buelna Dec. Ex. 5 at 9:50-

10:10).) After about three minutes on the ground, Hall informed Shannon that Nelson was 

unconscious and nonreactive. (Dkt. 78-5 (Buelna Dec. Ex. 5 at 12:05-12:30).) Shannon lifted his 

knee from Nelson’s back and upgraded the ambulance request to an emergency. (Dkt. 78-5 

(Buelna Dec. Ex. 5 at 12:15-12:30).) Hall searched for a pulse, but the sweatshirt was in the way. 

(Dkt. 78-5 (Buelna Dec. Ex. 5 at 12:15-12:30).) The individual officer Defendants continued 

applying the WRAP device, even as Hall informed the other officers that she did not think that 

Nelson was breathing. (Dkt. 78-5 (Buelna Dec. Ex. 5 at 12:30-12:55).) Shannon instructed the 

other officers to finish applying the WRAP device before rolling Nelson over. (Dkt. 78-5 (Buelna 

Dec. Ex. 5 at 12:55-13:15).) Once the WRAP device had been completely applied, one minute 

and twenty seconds after Hall noticed Nelson was unconscious, the officers rolled Nelson onto his 

back. (Dkt. 78-5 (Buelna Dec. Ex. 5 at 13:40).) Nelson was taken by ambulance to St. Rose 

Hospital, where he was pronounced dead. (Dkt. 78-16 (Buelna Dec. Ex. 16).)

The WRAP device is a full body restraint system in use by the Department since the 1990s. 

(Dkt. 78-8 (Buelna Dec. Ex. 8 at 15:24).) The Department has four to five WRAP devices. (Dkt. 

78-8 (Buelna Dec. Ex. 8 at 16:11).) Only supervisors can carry the WRAP device in their 

vehicles, and a supervisor must be present for a WRAP device to be used. (Dkt. 78-3 (Buelna 

Dec. Ex. 3 at 29:20-23).) All of the Department’s officers receive annual training regarding the 

WRAP device. (Dkt. 82-11 (Rollan Dec. Ex. 11 at 37:16-21).) And the training is based largely 

on the manual for use that comes with the WRAP device. (Dkt. 78-8 (Buelna Ex. 8 at 19:25; 26:5-

7).) The WRAP manual calls for application by two to four people, and specifically notes that 

“[i]t is essential to minimize the time the subject is restrained face down to reduce the possible 

risks associated with respiratory fatigue.” (Dkt. 78-7 (Buelna Dec. Ex. 7 at 6).) There is no 

specific policy requiring that the officer closest to a subject’s head when applying the WRAP

device be responsible for monitoring the subject’s breathing. (Dkt. 82-11 (Rollan Dec. Ex. 11 at 

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22:16-25).) Officers are taught that the appropriate area to apply pressure on the upper body 

during application is the shoulder or upper back area. (Dkt. 78-8 (Buelna Dec. Ex. 8 at 46:5-8).) 

The Department teaches officers about the risks of positional asphyxia and instructed that when a 

subject lying face down during WRAP device application is having difficulty breathing, they 

should roll the subject into a recovery position on his side or sitting up when safe to do so. (Dkt. 

82-11 (Rollan Dec. Ex. 11 at 17:3-25); Dkt. 78-8 (Buelna Dec. Ex. 8 at 28:8-11).) Officers are 

taught that obesity may increase the risk of positional asphyxia. (Dkt. 78-2 (Buelna Dec. Ex. 2 at 

51:3-14).) Whether it is safe to move a subject into a recovery position is left entirely to the 

officer’s discretion. (Dkt. 78-8 (Buelna Dec. Ex. 8 at 36:1-6).) The Department also teaches 

officers that subjects may bait them during the application of a WRAP device by pretending to be 

unconscious. (Dkt. 82-11 (Rollan Dec. Ex. 11 at 35:1-17).) Officers receive annual training on 

performing mental health commitments. (Dkt. 78-2 (Buelna Dec. Ex. 2 at 18:5-8).) The 

Department’s policy on the reasonable use of force outlines seventeen factors for determining 

when the exercise of force is appropriate. (Dkt. 82-12.)

ANALYSIS

A. Applicable Legal Standard on Motion for Summary Judgment.

A principal purpose of the summary judgment procedure is to identify and dispose of 

factually unsupported claims. Celotex Corp. v. Cattrett, 477 U.S. 317, 323-24 (1986). Summary 

judgment is proper “if the movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In considering 

a motion for summary judgment, the court may not weigh the evidence or make credibility 

determinations, and is required to draw all inferences in a light most favorable to the non-moving 

party.” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997).

The party moving for summary judgment bears the initial burden of identifying those 

portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue 

of material fact. Celotex, 477 U.S. at 323. An issue of fact is “genuine” only if there is sufficient 

evidence for a reasonable fact finder to find for the non-moving party. Anderson v. Liberty Lobby, 

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Inc., 477 U.S. 242, 248-49 (1986). A fact is “material” if it may affect the outcome of the case. 

Id. at 248. If the party moving for summary judgment does not have the ultimate burden of 

persuasion at trial, that party must produce evidence which either negates an essential element of 

the non-moving party’s claims or that party must show that the non-moving party does not have 

enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Nissan 

Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). 

Once the moving party meets his or her initial burden, the non-moving party must go 

beyond the pleadings and, by its own evidence, set forth specific facts showing that there is a 

genuine issue for trial. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 

2000). In order to make this showing, the non-moving party must “identify with reasonable 

particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 

1279 (9th Cir. 1996). In addition, the party seeking to establish a genuine issue of material fact 

must take care to adequately point a court to the evidence precluding summary judgment because 

a court is “not required to comb the record to find some reason to deny a motion for summary 

judgment.” Carmen v. San Francisco Unified School Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) 

(citation omitted). If the non-moving party fails to point to evidence precluding summary 

judgment, the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323.

B. Cross-Motions for Summary Judgment.

Plaintiffs move for summary judgment against Defendants on their claims for excessive 

force, wrongful death, and violation of the Americans with Disabilities Act (“ADA”). (Dkt. 78, 

83.) Defendants cross-move for summary judgment against Plaintiffs on all of Plaintiffs’ claims. 

(Dkt. 82, 84.) The parties agreed at oral argument, though, that causation – whether the alleged 

violations of Nelson’s Constitutional rights caused his death – is a disputed factual issue. Thus, all 

parties agree that the jury must consider that issue.2

 

2

 Plaintiffs’ expert opined that “the primary factor that caused Mr. Nelson’s death was restraint 

asphyxia as a result of the officers’ compression.” (Dkt. 83 at 17.) In contrast, relying on the 

coroner’s report, Defendants argue that Nelson’s cause of death was “cardiac arrhythmia due to 

acute methamphetamine intoxication association with physical exertion with other significant 

conditions of cardiomyopathy” and maintain that “Plaintiffs have not provided any evidence that 

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As discussed supra, the factual record in this case is dense, and the parties rely heavily on 

deposition testimony of the individual officer Defendants and body camera footage of the incident. 

With regard to all but three of Plaintiff’s Monell claims, the Court is convinced that Plaintiffs have 

adduced sufficient evidence to survive summary judgment. Further, taking all the facts in the light 

most favorable to Defendants, Plaintiffs prevail on the issue of qualified immunity, and 

Defendants are foreclosed from bringing this defense at trial. Resolution of the remainder of the 

issues raised in this case will require parsing, sifting, and credibility determinations by the jury as 

factfinder, and thus summary judgment is not appropriate for those claims.

1. Fourth Amendment Claim for Excessive Force

When evaluating Fourth Amendment Claims for excessive use of force, courts apply an 

objective reasonableness inquiry: “the question is whether the officers’ actions are ‘objectively 

reasonable’ in light of the facts and circumstances confronting them,” with “allowance for the fact 

that police officers are often forced to make split-second judgments – in circumstances that are 

tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular 

situation.” Graham v. Connor, 490 U.S. 386, 397 (1989). The typical analysis involves three 

steps, including assessment of (1) the severity of the intrusion on the individual’s Fourth 

Amendment rights by evaluating the type and amount of force used; (2) the government’s interest 

in the use of force; (3) the balance between the severity of the intrusion and the level of 

government need. See Glenn v. Washington Cty., 673 F.3d 864, 871 (9th Cir. 2011). Summary 

judgment is almost never appropriate on an excessive force claim and must be “granted sparingly”

“[b]ecause [the excessive force inquiry] nearly always requires a jury to sift through disputed 

factual contentions, and to draw inferences therefrom.” Smith v. City of Hemet, 394 F.3d 689, 701 

(9th Cir. 2005) (citing Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)).

Granting summary judgment for either Plaintiffs or Defendants on the claim for Fourth 

Amendment violation (excessive force) is not appropriate because of the disputed facts. Plaintiffs 

contend that no reasonable jury could find that Defendants behaved reasonably in continuing to 

 

Decedent died of any actions undertaken by Defendants Officers.” (Dkt. 82 at 15, 21.)

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restrain Nelson after he showed signs of respiratory distress and lost consciousness. (Dkt. 78 at 

19.) Meanwhile, Defendants assert that no reasonable jury could conclude the Defendant officers 

behaved unreasonably under the circumstances. (Dkt. 82 at 15.) As described above, this case 

presents disputed, material facts, and many of the inferences to be drawn from them go directly to

the objective reasonableness of the officers’ actions. There is a dispute about whether an 

objectively reasonable officer could decide not to move Nelson into a recovery position 

immediately after Nelson said that he could not breathe. Factors showing the decision to restrain 

Nelson in a WRAP device and the manner in which he was restrained were not objectively 

reasonable are the following: Nelson was handcuffed, prone, experiencing a mental health 

episode, and lacked a weapon when Defendants applied the WRAP device. Plaintiffs also argue 

that Defendants were biased against Nelson because of their previous interactions and thus that 

they did not respond as quickly or as objectively as they should have. Factors showing the 

decision to restrain Nelson in the WRAP device and the way that the individual officer Defendants 

did so were objectively reasonable are the following: Nelson was a large man with a known 

history of violent interactions with law enforcement; Nelson had been behaving erratically and 

was periodically noncompliant during his encounter with the officers, including during application 

of the WRAP device; and Defendants were trained to evaluate officers’ safety first, when applying 

a WRAP device, before responding to a subject’s complaints. The facts of this case likewise 

present the need for multiple complex credibility determinations. Those tasks are best left to the 

jury as factfinder.

The critical evidence in this case consists of body camera footage, which both Plaintiffs 

and Defendants cite. Though the footage at issue shows the same events, the parties have different 

theories and interpretations of what happened on December 19, 2015. In interpreting what the 

body worn cameras show, both sides rely heavily on deposition testimony from the officers on 

scene, as well as from Brandon Wilson, the officer designated by the Department as the person 

most knowledgeable about the WRAP device, its use, and associated training. They also rely on 

audio recordings from the dispatch center, medical records, the coroner’s report, and an expert 

report of Dr. Daniel J. Spitz, a forensic pathologist presented by Plaintiffs. The parties’ theories 

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formed in reliance on this evidence reveal pointed disputes as to several material facts, on which 

the outcome of the case will hinge.

Several of the facts the parties dispute and the inferences that may be drawn from them go 

to the reasonableness of the officers’ actions, which is at the heart of nearly every claim in this 

case. For example, the parties disagree about whether it was safe for the officers to turn Nelson 

over before completing application of the WRAP device. Compare (Dkt. 78 at 22 (“Mr. Nelson 

was not an immediate threat to the safety of officers or others”) with (Dkt. 82 at 20 (“Specifically, 

[the officers] followed their training and assessed that it was unsafe to turn Decedent over and 

instead continued to take steps to safely control Decedent due to concerns that he was pretending 

to be unconscious in order to create a false sense of security.”).) Similarly, the parties dispute 

whether Nelson resisted during the application of the WRAP device. Compare (Dkt. 78 at 22 

(“Even when officers were placing Mr. Nelson in the WRAP device the extent of any resistance 

amounted to him bending his leg and turning on his side after complaining that he could not 

breathe”) with (Dkt. 82 at 18 (“Decedent continued to physically resist the officers’ attempts to 

control him and tensed his body such that it made it difficult to apply the WRAP device”) and

(Dkt. 84 at 10 (“the Officers continued to apply pressure because Decedent resisted and refused to 

relax”).) There is likewise substantial disagreement over how much weight the officers placed on 

Mr. Nelson’s back. Compare (Dkt. 78 at 15-16 (“Defendant Shannon continued to compress Mr. 

Nelson’s back”) and (Dkt. 83 at 11-12 (“Defendants used their body weight to compress Mr. 

Nelson’s back [...] the body worn cameras captured Defendant Shannon placing his entire body 

weight on Mr. Nelson”) with (Dkt. 82 at 18 (“none of the officers testified that they placed their 

entire body weight on Decedent’s back”) and 23 (“none of the officers here pressed their entire 

body weight on Decedent’s neck and torso”).)

And the parties dispute where Defendants placed their knees on Nelson’s back. Compare

(Dkt. 78 at 15-16 (“Defendant’s knee was pressed over Mr. Nelson’s spine and neck [...] spine 

and upper back [...] upper back again [...] compressing his back”) and 24 (“Defendant Shannon 

kept his knee leveraged on Mr. Nelson’s mid-back and particularly over his spine”) and (Dkt. 83 

at 12 (“the body worn cameras captured Defendant Shannon [...] placing his knee on Mr. Nelson’s 

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neck”) with (Dkt. 82 at 13 (“Officer Shannon had his knees on the right side of Decedent’s 

shoulder and Officer Hall had her knees on the left side of Decedent’s shoulder”).) The parties 

also disagree about how Hall handled Nelson’s head, including whether placement of her hand on

Nelson’s sweatshirt exacerbated his difficulty in breathing. Compare (Dkt. 78 at 24 (“Defendant 

Hall had a knee and a hand pulling Mr. Nelson’s sweatshirt choking him which she acknowledges 

may have knocked him out”) and (Dkt. 83 at 12 (“the body camera captured Defendant Hall 

tugging on Mr. Nelson’s hood choking him”) with (Dkt. 82 at 13 (“Officer Hall had her hand on 

Decedent’s hood area to prevent Decedent from suddenly hitting the pavement with his head, and 

also to make sure he did not raise up off the ground”) and (Dkt. 84 at 9 (“Officer Hall choking 

Decedent by tugging on his hood is entirely unsupported by the record which shows no evidence 

of neck trauma associated with suffocation or choking”).) Review of the footage does not resolve 

these disputes. For these reasons, the issue of whether the individual officer Defendants used 

excessive force must go to the jury.

2. Qualified Immunity on the Excessive Force Claim

Defendants are not entitled to qualified immunity because legal precedent at the time of the 

incident clearly illustrate that, if the Court interprets the facts most favorably to Plaintiffs, 

Defendants’ use of force was excessive. The assertion of qualified immunity requires the 

reviewing court to address two questions: whether, taken in the light most favorable to the party 

asserting the injury, the facts alleged show that the officers’ conduct violated a constitutional right 

and whether the right at issue was clearly established at the time of the alleged violation. Saucier 

v. Katz, 533 U.S. 194, 201 (2001). This is not a rigid inquiry, and the second question may be 

addressed before the first, particularly in cases still subject to factual development. Pearson v. 

Callahan, 555 U.S. 223, 239 (2009); Henderson v. City and Cnty. of San Francisco, No. C-05-234 

VRW, 2006 WL 3507944 (N.D. Cal. Dec. 1, 2006) (“If the court finds a material factual dispute 

whether a constitutional violation has occurred, then the court determines whether the right 

infringed was clearly established at the time of the alleged violation.”) (citing Wilson v. Layne, 

526 U.S. 603 (1999)). “‘[W]hether an official protected by qualified immunity may be held 

personally liable for an allegedly unlawful official action generally turns on the ‘objective legal 

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reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly established’ at 

the time it was taken.’” Messerschmidt v. Millender, 565 U.S. 535, 546 (2012) (quoting Anderson 

v. Creighton, 483 U.S. 635, 639 (1987) (citation omitted)). Thus, if an official could reasonably 

have believed she was complying with established law at the time of the violation, qualified 

immunity may be appropriate even where a constitutional right was violated. Id. The merits of an 

excessive force claim are distinct from the legal question of whether qualified immunity is 

warranted; in excessive force cases, “qualified immunity requires an analysis not susceptible of 

fusion with the question whether unreasonable force was used.” Saucier, 533 U.S. at 197.

As discussed supra, the merits of the excessive force claim in this case are appropriate for 

decision by the jury, given the number of disputed material facts to be sifted and credibility 

determinations to be made here. In weighing the qualified immunity question, the Court moves 

directly to a determination of whether a reasonable officer would have known that the force used 

on Nelson violated law clearly established at the time of the incident. Having made that inquiry, 

the Court concludes that Defendants are not entitled to qualified immunity as a matter of law 

because clearly established precedent at the time of the incident showed that the amount of force 

used by the officers was excessive, with the facts interpreted most favorably to Plaintiffs, and a 

reasonable officer on the scene would have recognized that.

Plaintiffs cite precedent in existence at the time of Nelson’s death: Drummond ex rel. 

Drummond v. City of Anaheim, 343 F.3d 1052, 1053 (9th Cir. 2003). In Drummond, the plaintiff 

had a history of mental illness, and his fiancée called the police during an episode of paranoid 

hallucination. Id. A rookie police officer and her training officer responded to the call, but could 

not justify placing Mr. Drummond under a hold for psychiatric evaluation. Id. The next night, a 

neighbor – who feared Mr. Drummond would dart into traffic during his hallucinations – called 

officers. Id. Officers arrived, substantiated the need for a hold for psychiatric evaluation, and 

awaited the ambulance. Id. While waiting, they placed Drummond on his stomach and applied 

pressure to his back, and he then repeatedly told them he could not breathe. Id. at 1054-55. The 

officers applied a restraint to his ankles, and Drummond lost consciousness. Id. at 1055. 

Immediately after Drummond lost consciousness, the officers turned him onto his back. Id. They 

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could not revive Drummond, who remained unconscious and in a permanent vegetative state. Id. 

Applying the Graham balancing test, the Ninth Circuit held that the officers’ use of force 

was constitutionally excessive. Id. at 1056-60. The court noted that the force used was both 

severe and minimally necessary because the Plaintiff was mentally ill, already restrained, not 

accused of a crime, and did not resist once on the ground. Id. at 1056-58. Weighing the severity 

of the force against the minimal need for it, the Ninth Circuit concluded that “[t]he 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. Further, publicity surrounding similar uses of force by police and 

specific training they received related to positional asphyxia put the officers on notice that such 

force was unreasonable. Id. The court observed that nationally, multiple legal precedents 

indicated the risk of “‘compression asphyxia,’” where “prone and handcuffed individuals in an 

agitated state have suffocated under the weight of restraining officers.” Id. at 1056-57 (collecting 

cases).

Plaintiffs correctly argue that Drummond almost exactly mirrors the facts at issue here and 

that Defendants should have known that the amount of force they exerted and the manner in which 

they exerted it was constitutionally unreasonable. (Dkt. 78 at 25-26.) The Court finds it difficult 

to imagine a clearer parallel to the facts of this case than Drummond. As was true for Drummond, 

officers detained Nelson, who was mentally ill, pursuant to a 5150 hold and, while waiting for the 

ambulance to pick him up, restrained him in a prone position and continued to apply weight to his 

back even after he said he could not breathe. Nelson was unarmed, handcuffed, restrained at the 

ankles, and suspected of no crime when Defendants made their decision to continue applying the 

WRAP device after he cried out that he was suffocating and after he lost consciousness. Like the 

officers in Drummond, the officers here were aware of the risks of positional asphyxia and had 

received specific training regarding those risks.

Defendants’ attempt to distinguish Drummond is unconvincing. Defendants contend that 

Drummond is not analogous to this case because the officers here did not press as much weight on 

Nelson as the Drummond officers did, because there is no evidence of trauma to Nelson’s neck, 

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and because Nelson, unlike the plaintiff in Drummond, resisted while being restrained. (Dkt. 82 at 

23.) Defendants further argue that the weight ratios between the detaining officers and the 

Plaintiffs were different across the two cases. (Dkt. 84 at 8.) The issues of resistance and how 

much weight Defendants put on Nelson’s body are disputed issues of fact, and the Court must give 

the interpretation most favorable to Plaintiffs under this analysis. The lack of evidence of trauma 

to the neck does not distinguish this case from Drummond, either. Drummond did not turn on the 

lack of evidence or existence of evidence of trauma to the neck.

Construing Fourth Amendment jurisprudence to permit claims of excessive force only 

where there was an identical weight differential between officers and plaintiffs in prior cases 

would vitiate a crucial constitutional protection. “Fair notice” does not require exact identity of 

facts; “[o]therwise, officers would escape responsibility for the most egregious forms of conduct 

simply because there was no case on all fours prohibiting that particular manifestation of 

unconstitutional conduct.” Drummond, 343 F.3d at 1061 (citing Anderson v. Creighton, 483 U.S. 

635, 640 (1987) (quotation marks omitted). Here, there is a case almost directly on point on the 

major issues. Drummond was a clear directive to officers not to continue compressing a restrained 

person’s back after he says he cannot breathe. The facts here are actually more egregious than the 

ones in Drummond, because here, Defendants waited one minute and 20 seconds after Hall noticed 

that Nelson had lost consciousness before turning Nelson over. In Drummond, the officers 

immediately after noticing that Drummond was unconscious, checked his pulse and then turned 

him over to administer CPR. 343 F.3d at 1055. The Court in Drummond nonetheless found a 

violation of the plaintiff’s Constitutional rights under less severe facts than here.

Small factual differences such as those Defendants emphasize do not obscure the clarity of 

Drummond’s instruction. Accordingly, Defendants had fair warning that the amount of force they 

used on Nelson was constitutionally excessive, and it would have been clear to a reasonable 

officer on the scene that the force used on Nelson was unlawful. The individual officer 

Defendants therefore are not entitled to qualified immunity.

3. Wrongful Death Under California Law

Summary judgment is inappropriate on Plaintiffs’ wrongful death claim because it, like the 

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excessive force claim, turns on factual determinations of reasonableness. “[P]ublic employees in 

California are statutorily liable to the same extent as private persons for injuries caused by their 

acts or omissions.” Hayes v. Cty. Of San Diego, 57 Cal. 4th 622, 628-29 (2013). Thus, to support 

a negligence finding, a plaintiff must show that the defendant public employee had a duty to 

exercise due care, that he breached that duty, and that the breach was the proximate or legal cause 

of the resulting injury. Id. The California Supreme Court “has long recognized that peace officers 

have a duty to act reasonably when using deadly force.” Id. at 629. And “[t]he reasonableness of 

an officer’s conduct is determined in light of the totality of the circumstances.” Id. “In police 

cases, as well as others, the conduct in question ‘must always be gauged in relation to all the other 

material circumstances surrounding it and if such other circumstances admit of a reasonable doubt 

as to whether such questioned conduct falls within or without the bounds of ordinary care such 

doubt must be resolved as a matter of fact rather than of law.” Young Han v. City of Folsom, 695 

F. App’x 197, 198-99 (9th Cir. 2017) (quoting Grudt v. City of Los Angeles, 86 Cal. Rptr. 465, 

468 (1970)). At issue here will be whether the individual officer Defendants were negligent or 

whether they acted reasonably in using deadly force on Nelson. Whether their conduct falls within 

the bounds of ordinary care given the totality of the circumstances is a question that must be 

resolved as a matter of fact. Summary judgment is therefore inappropriate on Plaintiffs’ wrongful 

death claim.

4. Americans with Disabilities Act Reasonable Accommodation Claim

Plaintiffs’ ADA claim is not appropriate for summary judgment. “To state a claim under 

Title II of the ADA, a plaintiff generally must show: (1) she is an individual with a disability; (2) 

she is otherwise qualified to participate in or receive the benefit of a public entity’s services, 

programs or activities; (3) she was either excluded from participation in or denied the benefits of 

the public entity’s services, programs or activities or was otherwise discriminated against by the 

public entity; and (4) such exclusion, denial of benefits or discrimination was by reason of her 

disability. Sheehan v. City & Cty. of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014), rev’d in 

part, cert. dismissed in part sub nom. City & Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 

1765, 191 L. Ed. 2d 856 (2015). When a Title II claim is based on the failure to provide a 

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reasonable accommodation under 28 C.F.R. § 35.130(b)(7), the plaintiff bears the initial burden of 

establishing that reasonable accommodations exist, and the public entity may defeat the claim by 

showing that making the accommodations would fundamentally alter the nature of the service, 

program, or activity under 28 C.F.R. § 35.130(b)(7)(i). Id. Plaintiffs propose six reasonable 

accommodations that officers could have taken to deescalate their encounter with Mr. Nelson and 

avoid positional asphyxiation, given his obvious mental disability. (Dkt. 78 at 30.) Defendants 

counter that at least some of the accommodations would have altered the nature of the service 

provided. (Dkt. 82 at 27.) The Court imagines that a reasonable jury, taking into consideration all 

of the circumstances, could find for either side. And “the reasonableness of an accommodation is 

ordinarily a question of fact.” Sheehan, 743 F.3d at 1233. Accordingly, summary judgment on 

Plaintiffs’ ADA reasonable accommodation claim is not warranted.

5. Fourteenth Amendment Familial Relationship Claim

Defendants are not entitled to summary judgment on Plaintiffs’ Fourteenth Amendment 

Claim. Family members of a person who alleges wrongful use of deadly force may bring a claim 

for loss of familial relationship under the Fourteenth Amendment’s substantive due process clause. 

To prevail on such a claim, Plaintiffs must demonstrate that the officers’ use of force “can 

properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.” Cnty. Of 

Sacramento v. Lewis, 523 U.S. 833, 847 (1998). Plaintiffs must show a purpose to harm on the 

part of the defendant, Porter v. Osborn, 546 F.3d 1131, 1139 (9th Cir. 2008), that is deliberate 

even in the midst of a rapidly unfolding scenario, Moreland v. Las Vegas Met. Police Dept., 159 

F.3d 365, 372 (9th Cir. 1998). A reasonable jury could find that police officers had a deliberate 

purpose to harm Nelson. One reading of the facts suggests that the officers may have been biased 

against Nelson based on his previous reputation with the Department, which they had time to 

discuss with one another as they waited for the ambulance with Nelson stowed in the patrol car. 

The subsequent aggression with which they subdued Nelson, including Hall’s decision to force his 

head into the ground, could be interpreted to corroborate that theory. Summary judgment is 

therefore not justified as to Plaintiffs’ Fourteenth Amendment claim.

/ / /

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6. Monell Claims

A local government unit may be held civilly liable under § 1983 where an alleged 

constitutional violation is the result of policy or custom. Monell, 436 U.S. at 690-91. “To prevail 

on a Monell claim, [a plaintiff] must ‘establish: (1) that he possessed a constitutional right of 

which he was deprived; (2) that the municipality had a policy; (3) that this policy ‘amounts to 

deliberate indifference’ to [plaintiff]’s constitutional right; and (4) that the policy is the ‘moving 

force behind the constitutional violation.’” Boss v. City of Mesa, 746 F. App’x 692, 695 (9th Cir. 

2018) (citing Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)). Bare 

allegations that a municipal defendant has “an unconstitutional policy are insufficient to survive 

summary judgment.” Id. 

Plaintiffs propound multiple theories of Monell liability against the City, as follows: (1) 

the City had a policy of retaining as police officers persons it knew or should have known had 

dangerous propensities to use excessive force; (2) the City inadequately supervised, trained, and 

disciplined such personnel; (3) the City inadequately trained personnel regarding interaction with 

disabled persons; that it inadequately disciplined officers for excessive force; (4) the City ratified 

the intentional misconduct of police officers; (5) the City inadequately investigated claims for 

excessive force; and (6) the City’s policies regarding detention are unconstitutional. (Dkt. 1 at 10-

12.) In essence, these allegations reduce to four types of Monell claim: ratification, failure to 

discipline, failure to train, and unconstitutional policy or custom.

To survive a motion for summary judgment on a ratification theory, a plaintiff must adduce 

evidence that a municipal entity’s final policymaker approved both her subordinate’s decision and 

the improper basis for that decision. Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066-67 (9th 

Cir. 2013) (citing Christie v. Iopa, 176 F.3d 1231 (9th Cir. 1999)). Plaintiffs have not adduced 

any evidence of a decision by a City of Hayward policymaker approving Defendants’ use of force 

or their rationale for use of force. Accordingly, summary judgment is GRANTED as to Plaintiffs’ 

Monell claim premised on ratification.

To survive a motion for summary judgment on a theory of failure to discipline, a plaintiff 

must adduce evidence of “specific incidents of supervisors’ failure to discipline for or deliberate 

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indifference to constitutional violations.” Baddour v. Hart, Case No. 14-cv-1355-PJH, 2016 WL 

344711 at *11 (N.D. Cal. Jan. 28, 2016). Plaintiffs have not put forward any specific facts 

showing a supervisor failing to discipline a police officer for a constitutional violation. 

Accordingly, summary judgment is GRANTED as to Plaintiffs’ Monell claim premised on failure 

to discipline.

To survive a motion for summary judgment on a failure to train theory, a plaintiff must 

introduce “evidence of a policy or practice of failure to train.” Baddour, 2016 WL 344711 at *11. 

Here, there is substantial evidence that the Department’s police officers received yearly training in 

applying the WRAP device, training and instruction in the appropriate use of force, and training in 

conducting 5150 interviews and imposing holds on mentally ill persons. Plaintiffs contend that 

such training was inadequate, particularly with regard to persons with disabilities and obese 

persons. In cases where the adequacy of a training program is at issue, “it may happen that in light 

of the duties assigned to specific officers or employees the need for more or different training is so 

obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the 

policymakers of the city can reasonably be said to have been indifferent to the need.” City of 

Canton, Ohio v. Harris, 498 U.S. 378, 390 (1989). The deficiency in training adduced “must be 

closely related to the ultimate injury.” Id. at 391. Here, Plaintiffs contend that the Department’s 

failure to train officers to avoid positional asphyxia, particularly when dealing with mentally ill or

obese persons, caused or contributed significantly to Nelson’s death. Based on the evidence 

adduced, it would be possible for a reasonable jury to conclude that the Department’s training was

so inadequate regarding how to safely apply the WRAP device, particularly to mentally ill or 

obese persons and given the number of cases nationwide involving positional asphyxia in police 

detention, that it amounted to deliberate indifference to the rights of persons with whom the police 

come into contact. Defendants’ motion for summary judgment is therefore DENIED as to 

Plaintiff’s Monell claim premised on failure to train.

To survive a motion for summary judgment on a policy or custom theory, a plaintiff must 

demonstrate “the existence of a policy or custom of the use of excessive force other than the 

alleged excessive force used during his own arrest.” Alegrett v. City and Cnty. of San Francisco, 

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Case No. 12-cv-05538-MEJ, 2014 WL 1911405 at *6 (N.D. Cal. May 13, 2014) (citing City of 

Oklahoma v. Tutle, 471 U.S. 808, 823-24 (1985). This may take the form of either an express 

policy or an unwritten custom. “A ‘custom’ for purposes of municipal liability is a ‘widespread 

practice that, although not authorized by written law or express municipal policy, is so permanent 

and well-settled as to constitute a custom or usage with the force of law.’” Id. at *5 (quoting St. 

Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). Here, Plaintiffs have not demonstrated that the 

excessive force they claim was used on Nelson constituted a part of a larger pattern of conduct by 

the Department. There is no evidence in the record of other officers’ using excessive force during 

other incidents, and there is no evidence of an unwritten practice or policy of using excessive 

force. Accordingly, summary judgment is GRANTED as to Plaintiffs’ Monell claim premised on 

unconstitutional policy or custom.

7. Bane Act Claim

To prevail on a claim under California’s Bane Act, a plaintiff must show both violation of 

a constitutional right and the specific intent to violate that right. See Cornell v. City and Cnty. Of 

San Francisco, 17 Cal. App. 5th 766, 803 (2017). As discussed above, there potentially is 

evidence of subjective intent in this case. And whether officers acted with the “particular 

purpose” of depriving a plaintiff of a right is “a question of fact.” Id. at 804. Summary judgment 

is therefore not warranted as to Plaintiffs’ Bane Act Claims.

8. Other State Law Claims

Plaintiffs’ remaining claims for assault and battery under California law will also require a 

factual determination centered on the reasonableness of the force used on Mr. Nelson. See, e.g., 

Nelson v. City of Davis, 709 F. Supp. 2d 978, 992 (E.D. Cal. 2010) (holding that “it is clear that an 

assault and battery claim against a police officer requires that unreasonable force be established” 

and declining summary adjudication of both state law claims and the Fourth Amendment 

excessive force claim brought alongside). For that reason, summary judgment on Plaintiffs’ state 

law assault and battery claims is inappropriate.

CONCLUSION

For the foregoing reasons, the Court DENIES Plaintiffs’ motion for summary judgment 

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EXCEPT as to the qualified immunity claim, which the Court GRANTS against the individual 

officer Defendants. The Court likewise DENIES Defendants’ motion for summary judgment, 

EXCEPT on Plaintiffs’ Monell claims premised on ratification, failure to discipline, and 

unconstitutional custom, as to which the Court GRANTS summary judgment in favor of 

Defendant City of Hayward.

IT IS SO ORDERED.

Dated: March 1, 2019

______________________________________

SALLIE KIM

United States Magistrate Judge

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