facts and circumstances. Graham v. Connor, 490 U.S. 386, 397 (1989). “The

[legal] precedent must be clear enough that every reasonable official would

interpret it to establish the particular rule the plaintiff seeks to apply.” District of

Columbia v. Wesby, 138 S. Ct. 577, 590 (2018).

2 Plaintiffs argue that the deputy defendants violated Birtcher’s Fourth

Amendment right to be free of excessive force because: (1) deputy Roland Garza

used his body weight to take down Birtcher as Birtcher first attempted to resist

detention; (2) deputy Garza and deputy John Robledo deployed tasers on Birtcher

four times; (3) Robledo struck Birtcher with his fist and sap baton multiple times;

and (4) deputy defendants used a forceful prone restraint on Birtcher after backup

deputies arrived.

The first three actions represent the use of force only after and in response to

Birtcher’s active resistance to lawful detention. During that part of the encounter,

Birtcher appeared to be under the influence; wrestled with Garza and refused to be

handcuffed; lunged at Garza despite being shot by a taser in probe mode; fled to

the busy Hobby Lobby parking lot; and briefly got hold of Robledo’s baton while

actively resisting the deputy defendants and bystanders, who were attempting to

detain him. Under these circumstances, this use of force was not excessive. See,

e.g., Marquez v. City of Phoenix, 693 F.3d 1167, 1175 (9th Cir. 2012).

The fourth action, the restraint of Birtcher in prone position, lasted for

approximately seven minutes. For the first six and a half of those minutes, Birtcher

continued struggling and actively resisted detention. But during the last 30

seconds, Birtcher stopped moving and was not resisting. Even assuming that the

3 deputy defendants used more force than necessary to hold Birtcher in place during

the final 30 seconds, we know of no clearly established law that would have put

them on notice that the force they used was excessive.

Plaintiffs rely on Drummond ex el. Drummond v. City of Anaheim, 343 F.3d

1052 (9th Cir. 2003). The degree of force employed in Drummond, e.g., kneeling

on the suspect’s neck, id. at 1054-55, was much greater than the force the deputy

defendants employed here. Further, Drummond does not stand for the proposition

that, once a suspect stops moving, officers cannot continue holding the suspect in

place. The deputy defendants moved Birtcher into recovery position once they

recognized that he was not moving, and we are aware of no clearly established

authority that would have required them to move Birtcher into that position any

faster. Because of those critical differences, Drummond does not “squarely

govern[] the specific facts at issue.” See Kisela v. Hughes, 138 S. Ct. 1148, 1153

(2018) (per curiam) (internal quotation marks omitted).

2. As for the claim of denial of medical care, we have held that “a police

officer who promptly summons the necessary medical assistance has acted

reasonably for purposes of the Fourth Amendment, even if the officer did not

administer CPR.” Tatum v. City & County of San Francisco, 441 F.3d 1090, 1099

(9th Cir. 2006).

4 Here, plaintiffs did not raise a material question of fact that the deputy

defendants failed to summon medical care for Birtcher promptly. The deputy

defendants also administered two Naloxone doses to combat the suspected drug

overdose and, like the officers in Tatum, monitored Birtcher’s breathing while they

waited for medical responders. See id. at 1098.

3. For Fourteenth Amendment substantive due process claims, official

conduct that “shocks the conscience” is cognizable. Porter v. Osborn, 546 F.3d

1131, 1136-37 (9th Cir. 2008) (citation omitted). As a threshold matter, courts

must determine which of two standards applies. The first standard requires a

plaintiff to show that the official acted with “deliberate indifference,” i.e., that the

officer “disregarded a known or obvious consequence of his action.” Nicholson v.

City of Los Angeles, 935 F.3d 685, 693 (9th Cir. 2019) (citation omitted). The

“deliberate indifference” standard applies only if the circumstances are such that

“actual deliberation is practical.” Zion v. County of Orange, 874 F.3d 1072, 1077

(9th Cir. 2017) (citation omitted). The second standard requires a plaintiff to

demonstrate that the official acted “with a purpose to harm unrelated to legitimate

law enforcement objectives.” Nicholson, 935 F.3d at 693 (citation omitted).

5 Plaintiffs argue that the district court erroneously applied the “purpose to

harm” standard because the deputy defendants had time to deliberate after Birtcher

was handcuffed.

We agree with the district court that the “purpose to harm” standard applies

because the situation escalated quickly and Birtcher continued actively to resist

detention. The video evidence demonstrates that this was not “a completely

controlled situation in which the police committed an obvious and easily detectable

mistake” that they had time to correct. See Porter, 546 F.3d at 1139-40. Plaintiffs

did not raise a material dispute of fact that the deputy defendants’ actions were

unrelated to law enforcement efforts.

4. To establish liability against a local government for failure to train, a

plaintiff must demonstrate that the government “fail[ed] to train employees in a

manner that amounts to ‘deliberate indifference’ to a constitutional right, such that

‘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 deliberately indifferent to the need.’”

Rodriguez v. County of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018) (quoting

City of Canton v. Harris, 489 U.S. 378, 390 (1989)). “Deliberate indifference”

exists if a plaintiff can show that the municipality disregarded the known or

6 obvious consequence that a particular omission in their training program causes

their employees to violate citizens’ constitutional rights. Connick v. Thompson,

563 U.S. 51, 61 (2011). “A pattern of similar constitutional violations by untrained

employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for

purposes of failure to train.” Id. at 62 (citation omitted).

Plaintiffs do not cite a pattern of similar constitutional violations, nor do

they otherwise raise a genuine dispute that the county defendants were deliberately

indifferent to the need for additional training. Plaintiffs point to several individuals

who have, for a variety of reasons, died in police custody dating back to 2000, but

only two of those incidents are factually close to the constitutional violation

alleged here—an officer’s use of excessive force on an individual who was prone

and subdued.1 Two incidents are insufficient for a reasonable jury to find that there

was a “pattern” of similar constitutional violations. See Connick, 563 U.S. at 60-

63.

1 One of these incidents was the subject of K.J.P. v. County of San Diego, No. 3:15-cv-02692 (S.D. Cal.). Plaintiffs request that we take judicial notice of the March 16, 2022 judgment in favor of the plaintiffs in K.J.P., reasoning that the jury’s finding that the County failed to train the officers is a “preclusive finding[] on issues directly relevant to [plaintiffs’] § 1983 failure to train claim against the County of San Diego.” Dkt. No. 53 at 1. We disagree and deny the motion. The jury’s finding in K.J.P., an unrelated case, does not satisfy the standard in Fed. R. Evid. 201(b). 7

AFFIRMED.

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