Responding to Mental Health Calls: Ninth Circuit Ruling Jeopardizes Officer Safety

MICHAEL A. MORGUESS
Senior Associate
Rains Lucia Stern St. Phalle & Silver, PC

A new ruling from the Ninth Circuit Court of Appeals has made it yet more challenging for peace officers to avoid criminal and civil liability for violating the Fourth Amendment when responding to mental health calls. This has caused some police agencies to discontinue responding to such calls where no crime has been reported. The ruling in Scott v. Smith, 109 F. 4th 1215 (9th Cir. 2024) potentially curtails available force options when confronted with a mental health call, creating a tightrope walk of increased potential risks to officers and others on the scene. It also validates remarks made by now-retired California Court of Appeal Justice William W. Bedsworth about the “staggering amount of education and daily re-education” police officers must assimilate in order to become “a psychologist, a pharmacologist, a teacher, a counselor, a lawyer, an EMT and a badass superhero, probably all during one shift” (Bedsworth, J. [Ret.] [2018]Keynote: Golden West College CJTC).

The Facts of This Case

Roy Scott called 9-1-1, reporting that multiple assailants were outside his apartment. Las Vegas Metropolitan Police Officers Kyle Smith and Theodore Huntsman responded. Dispatch told them Scott was mentally ill. When Smith and Huntsman arrived, they knocked and identified themselves. Scott yelled for them to “break the door down,” claiming people were inside. They did not hear anything and continued to knock, ordering Scott to come to the door and calling through the door to ask if he had “been diagnosed with any mental diseases.” When Scott did not come to the door, Smith asked dispatch to call him to ask him to come to the door. Neither felt comfortable entering, and they peered into the window. Huntsman noticed a “crazed look” in Scott’s eye; they did not see anyone else in the apartment.

Smith called his sergeant and activated his body-worn camera. They did not believe there were exigent circumstances justifying entry. They resumed knocking. Scott finally opened the door. Smith, upon seeing Scott holding a metal pipe at his side, retreated down the stairs in front of the apartment. Smith dropped the pipe when asked to do so. When asked if he had any other weapons, Scott produced a knife from his pocket and handed it to Huntsman. They ordered him to face the wall, shining a flashlight at him. Scott told them the light bothered him and that he had paranoid schizophrenia, and asked if they could just “put [him] in the car.” He said he had the weapons because, “I think people are after me.” When directed to face the wall, Scott said, “I’m paranoid; I can’t turn around.” Smith told him, “You’re fine; we are out here to help you.”

Smith and Huntsman realized Scott was in distress and determined that he qualified for a medical hold for his mental health and safety. They approached Scott and grabbed his arms. He said “please” and “what are you doing?” as they pulled him to the ground, holding his arms at his side while he was lying on his back. Scott screamed and struggled, asking the officers to leave him alone. They rolled him onto his stomach, ordering him to “stop.” While holding Scott’s hands behind his back, Huntsman put his weight on Scott’s back and neck, while Smith put his weight on Scott’s legs, restraining his lower body. Scott’s pleas became incoherent and then breathless. After handcuffing him, Smith and Huntsman rolled Scott onto his side, and Scott said he wanted to be left alone. His face was bloody from contact with the ground, and after yelling and struggling for a few minutes, he suddenly was silent and not moving. He did not respond to the officers’ attempts to wake or revive him. Paramedics arrived, and Scott was pronounced dead at the scene.

Scott’s daughter and estate sued for violation of Scott’s Fourth Amendment right to be free from excessive force and his daughter’s Fourteenth Amendment right to familial association. The trial court denied Smith and Huntsman qualified immunity on both claims. They appealed to the Ninth Circuit Court of Appeals, which affirmed in part and reversed in part. This article focuses on the court’s analysis of the Fourth Amendment claim.

The Fourth Amendment Standard for Analyzing Force

Under the Fourth Amendment, police may use only such force as is objectively reasonable under the circumstances. Reasonableness under the Fourth Amendment is “‘not capable of precise definition or mechanical operation’” and requires “attention to the facts and circumstances of each particular case” (Graham v. Connor, 490 U.S. 386, 396 [1989]). Three factors are considered in determining reasonableness: (1) the severity or “type and amount of force” used; (2) the officers’ “interest in the use of force,” i.e., what were police trying to protect or prevent; and (3) the “balance between” the type and amount of force, and the need for its use (Rice v. Morehouse, 989 F.3d 1112, 1121 [9th Cir. 2021]). These circumstances are viewed “from the perspective of the reasonable officer on the scene, rather than with 20/20 vision of hindsight” (Graham at 396).

The Court’s Decision and Reasoning

In looking at the type and amount of force used, the Ninth Circuit considered the “nature and degree of physical contact and the risk of harm, and the actual harm” caused. Here, the court concluded that Smith and Huntsman used deadly force in applying bodyweight compression on Scott’s back and neck for up to two minutes while handcuffing him and restraining his lower body, as Scott became increasingly breathless, lost consciousness and died. Prior Ninth Circuit case law had already established that the use of bodyweight compression on a prone individual can cause “compression asphyxia,” leading to death (Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056-57 [9th Cir. 2003]).

The court next considered the “interest in,” or need for, the use of force. Typically, this involves consideration of, among others things, the “the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether a suspect is actively resisting arrest or attempting to escape” (Espinosa v. City and County of San Francisco, 598 F.3d 528, 537 [9th Cir. 2010]). Here, Scott’s mental illness, and the fact that he was unarmed, had to be taken into account: the interest in using deadly force was “limited ‘by the fact that the officers were confronted, not with a person who had committed a serious crime against others, but with a mentally ill individual.’” According to the court, prior decisions of the Ninth Circuit have recognized that “counseling, where feasible, ‘may provide the best means of ending a crisis’ [citation]” (Scott, 109 F.4th at 1224).

The court found that Scott was not suspected of a crime, and Huntsman and Smith realized he was suffering from mental illness. Scott did not threaten the officers, his own life or that of others. He relinquished the pipe and knife and asked officers to place him in the patrol car. While he screamed and tried to pull away when the officers touched him and brought him to the ground, the court highlighted that Scott “did not attack the officers” or threaten to do so. The court believed “less intrusive alternatives” than bodyweight compression should have been attempted, including verbal de-escalation strategies, waiting for additional support to execute a “safer ‘team takedown’” or waiting for emergency service personnel to execute a “soft restraint” (Id. at 1225).

Finally, in balancing the amount of force against the need for it, the court held that Smith and Huntsman were not justified in using deadly force against Scott because he was mentally ill, and in the court’s view, not suspected of committing a crime and “presented little or no danger” (Ibid). The court went one step further, questioning whether any force was necessary at all.

The Import of This Decision to Law Enforcement

Since its initial decision in the case of Deorle v. Rutherford in 2001 (272 F.3d 1272), the Ninth Circuit has consistently held that “the tactics to be employed against an unarmed, emotionally distraught individual who is creating a disturbance or resisting arrest are ordinarily different than those involved in law enforcement efforts to subdue an armed and dangerous criminal who has recently committed a serious offense.”

Scott v. Smith seems to impose greater restrictions on use-of-force options that may be employed against a mental health sufferer who has not committed a criminal offense. This could easily lead to officers becoming tentative and second-guessing available force options, jeopardizing the safety of both the officers and the person they are trying to help, in addition to exposing them to both criminal and civil liability.

But maybe there is some good news in all of this: the U.S. Supreme Court has granted Smith and Huntsman additional time to petition that court for review. Stay tuned.

About the Author

Senior Associate Michael A. Morguess is a writs and appeals attorney in the Rains Lucia Stern St. Phalle & Silver Labor Litigation Group. Over the past 25 years, Michael has earned an excellent reputation among his peers and the bench, distinguishing himself as a strong legal advocate in public sector labor and employment litigation matters on behalf of labor organizations and individual employees. His practice covers a wide range of public employment issues, including First Amendment and other constitutional rights, collective bargaining, disciplinary matters and the Public Safety Officers Procedural Bill of Rights Act.