NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 17 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL BARRERA; et al., No. 22-15542

Plaintiffs-Appellees, D.C. No. 2:18-cv-00329-JAM-KJN v.

DAVID KRAUSE, Sergeant; et al., MEMORANDUM*

Defendants-Appellants,

and

CITY OF WOODLAND; DAN BELLINI,

Former Police Chief,

Defendants.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted February 15, 2023** San Francisco, California

Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Defendants Officer Richard Wright, Officer Parveen Lal, Officer Hannah

Gray, Sergeant Thomas Davis, and Sergeant David Krause (collectively

“Defendants”) appeal the district court’s order denying summary judgment on

qualified immunity grounds. Daniel Barrera, Christine Amaro, and two minors

(collectively the “Barrera family”) brought this wrongful death action pursuant to

42 U.S.C. § 1983 individually and as successors-in-interest to their son and father

Michael Barrera (“Barrera”), alleging claims of excessive force under the Fourth

Amendment and loss of familial relationships under the Fourteenth Amendment.

The district court denied the Defendants’ motion for summary judgment, finding

that there were “just far too many genuine issues of material fact for this Court to

grant summary judgment, even for the individuals.” We affirm in part and dismiss

and remand in part.

1. “Under 28 U.S.C. § 1291, we normally have no jurisdiction to hear

interlocutory appeals from the denial of summary judgment.” Isayeva v.

Sacramento Sheriff’s Dep’t, 872 F.3d 938, 944 (9th Cir. 2017). Summary

judgment denials on qualified immunity grounds, however, are “appealable ‘final

decisions’ because ‘[q]ualified immunity is immunity from suit, not just a defense

to liability.’” Id. at 944–45 (alteration in original) (quoting Knox v. Sw. Airlines,

124 F.3d 1103, 1106 (9th Cir. 1997)). However, while “[w]e must accept the

district court’s determination that there is a genuine dispute” of fact as to the

2 circumstances under which Barrera died, we may review whether the Defendants

are entitled to qualified immunity on summary judgment by construing the facts in

the light most favorable to the Barrera family and analyzing: “(1) whether the

defendant[s] violated a constitutional right, and (2) whether that right was clearly

established at the time of the alleged violation.” Id. at 945.

2. The district court did not err by concluding that the Defendants were

not entitled to qualified immunity on summary judgment as to the excessive force

claims under the Fourth Amendment. The Barrera family presents evidence that

the Defendants targeted Barrera, an unarmed man suffering from mental illness,

tased him in violation of Woodland Police Department (the “Department”) policy,

dog-piled on top of him as he lay prone on the pavement, and continued to hold

him down on his stomach with the full weight of their bodies for a total of four

minutes until Barrera asphyxiated, while Barrera was handcuffed and stating that

he could not breathe. While the Defendants dispute this version of events, viewing

the facts in the light most favorable to the Barrera family, their conduct violated

law clearly established in Drummond ex rel. Drummond v. City of Anaheim, 343

F.3d 1052 (9th Cir. 2003), which held that “compression asphyxia”—particularly

where a detainee was mentally ill, unarmed, restrained and begging for air—

constituted excessive force that “any reasonable officer would have known . . .

amounted to a constitutional violation.” Id. at 1062. And Defendants’ own

3 deposition testimony confirms that Department officers were trained to roll over a

detainee if he was struggling to breathe or already handcuffed, due to the risk of

potential asphyxiation. Drummond is sufficiently similar to this case that the

Defendants would have been on notice that, when Barrera was handcuffed and

prone on the ground, additional restraint, as applied here, is unconstitutionally

excessive.

Similarly, while Defendants contend that it was not clearly established that

the misuse of a Taser can constitute excessive force, our precedent dictates that the

excessive use of a Taser can be a violation of the Fourth Amendment. The Barrera

family alleges that Lal tased Barrera four times for a total of 24 seconds, in excess

of Department policy instructing officers to apply the Taser for a five-second cycle

and then reevaluate the situation before using it again. In Mattos v. Agarano, 661

F.3d 433 (9th Cir. 2011) (en banc), we held that multiple applications of a taser,

even in the less forceful “drivestun mode,” can constitute unreasonable and

unconstitutionally excessive force. Id. at 446. A reasonable jury could therefore

conclude that the application of the Taser here was unreasonable in light of the

government interests at stake, and that the Defendants violated clearly established

law as well as Department policy when they tased Barrera. See id. at 443–46.

Finally, while Defendants appear to argue that the district court should have

granted qualified immunity to individual Defendants, genuine disputes of material

4 fact preclude us from reviewing and determining individual responsibility for the

alleged incident and making a qualified immunity determination on a person-by-

person basis. Viewing the facts in the light most favorable to the Barrera family,

each Defendant was an “integral participant” in the unconstitutional use of force.

Boyd v. Benton County, 374 F.3d 773, 780 (9th Cir. 2004) (explaining that “each

officer’s actions themselves” need not “rise to the level of a constitutional

violation” for Fourth Amendment liability to attach). Therefore, the district court

properly denied qualified immunity to each Defendant on the excessive force

claims.

3. However, because we cannot discern from the district court’s order

the basis on which it denied the Defendants’ assertion of qualified immunity on the

Fourteenth Amendment loss of familial relationship claim, we remand to the

district court to clarify its order as to that claim. We have encouraged district

courts to clearly “articulate the basis upon which they deny qualified immunity.”

Maropulos v. County of Los Angeles, 560 F.3d 974, 976 (2009) (per curiam).

“Where, as here, ‘we cannot tell for sure’ what action the district court took with

respect to [the Defendants’] assertion of qualified immunity, ‘we must either try to

discern from the record’ what the district court did ‘or remand for the district court

to explain its reasoning.’” Ballou v. McElvain, 29 F.4th 413, 428 (9th Cir. 2022)

(quoting Maropulos, 560 F.3d at 975).

5 Here, the district court did not articulate the triable issues of fact, nor did it

explain why, viewing those facts in the light most favorable to the Barrera family,

the encounter violated “clearly established” law under the Fourteenth Amendment.

It simply pointed to our decision in Drummond, which concerned excessive force

claims under the Fourth Amendment, and held that there were too many disputed

facts to grant the Defendants qualified immunity on all claims. A Fourteenth

Amendment claim requires a showing that the Defendants engaged in conduct that

“shocks the conscience,” a more demanding standard than a Fourth Amendment

excessive force claim. Lam v. City of Los Banos, 976 F.3d 986, 1003 (9th Cir.

2020). Whether qualified immunity bars these claims is therefore a closer, fact-

bound question. As “we cannot undertake appellate review effectively when

forced to guess what the district court did in order to determine whether we even

have jurisdiction,” we remand the Fourteenth Amendment claims so that the

district court can “spell out the triable issues and why they preclude immunity

before trial.” Maropulos, 560 F.3d at 975–76.

4. Finally, the district court did not err in holding that the Barrera family,

including the children, has standing to bring this action. The Defendants assert that

they appeal the district court’s standing determination not on the basis of “the

particular parent-child interactions” but based on “the nature of [Barrera’s] death,”

which they characterize as accidental. However, it is unclear how the “nature of

6 the death” implicates standing as a matter of law, and the parties dispute whether

the death was “accidental” or not.

AFFIRMED IN PART; DISMISSED AND REMANDED IN PART.

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