Ninth Circuit Ruling Prompts Refusal to Respond to Mental Health Calls

Because of a new ruling from the Ninth Circuit Court of Appeals, some firefighters and other first responders are finding themselves left without police backup as more and more departments are saying that they will no longer dispatch officers to certain 911 calls. The Sacramento County Sheriff announced Tuesday his deputies will no longer respond to mental health calls where a crime is not being committed. The shift in policy comes, Sheriff Jim Cooper said, after a 2024 ruling by the Ninth Circuit Court of Appeals in Scott v. Smith, 109 F.4th 1215 (2024).

Such circumstances create a dilemma for firefighters and medical providers: people need their help urgently but now, without law enforcement to secure the scene, they must potentially risk working in an unsafe environment.  But why is this happening? The source of this particular issue stems from the Ninth Circuit Court of Appeals ruling that expands officers' potential liability when restraining a subject suffering from a mental health crisis.

The Facts

Roy Scott dialed 911 on March 3, 2019, claiming people were outside his apartment with a saw. Police officers Kyle Smith and Theodore Huntsman were the first to arrive, with dispatch alerting them that Scott was mentally ill. When they arrived at the apartment, they knocked and identified themselves, remaining outside despite Scott’s urgings for them to “break the door down.” After a few minutes they came to the conclusion that Scott was indeed suffering from a mental illness. After about 7 minutes from their arrival, Scott opened the door holding a metal pipe.

The officers retreated from Scott and ordered him to drop the pipe, which he did. Scott was clearly disoriented. The officers ordered him to stand by the wall and asked if he had any more weapons. Scott complied and produced a knife, apologizing whilst he did so, and handed it handle-first to Huntsman without making any threatening gestures. At this point Scott informed the officers that he had paranoid schizophrenia. Scott repeatedly insisted he was not fine and requested to be put in the patrol car. The officers at this point knew that Scott was clearly distressed and qualified for a “medical hold.”

The officers then pulled Scott to the ground, while Scott yelled and struggled, he was rolled onto his stomach with his arms restrained behind his back. Then, Huntsman put his body weight on Scott’s back and neck for about 1-2 minutes while Smith put his weight on Scott’s lower body. After handcuffing and rolling him over, Scott’s face was bloody from thrashing against the ground, and he stopped yelling. He did not respond to the officers’ attempts to wake him up and was soon pronounced dead from restraint asphyxia.

Scott’s daughter sued under the Fourth Amendment for violating Scott’s right to be free from excessive force and the Fourteenth Amendment for violating her right to familial association (basically depriving her of a family member). This blog’s focus is on the Fourth Amendment.

Fourth Amendment Claim – Excessive Force

The Fourth Amendment states that police may only use force that is objectively reasonable under the circumstances. In order to decide what is “objectively reasonable” courts look to 3 different factors to see whether, from the perspective of a reasonable officer in that moment (and not using hindsight), the actions were reasonable. The 3 factors are (1) how badly did the use of force violate the Fourth Amendment (2) did the government have a good reason for using this force (for example, were the police trying to stop an active crime), and (3) a balancing act between the first two factors, namely, how badly the Fourth Amendment was violated versus how important it was that the government use that force. 

Factor One: Type and amount of force used and how badly that violated the Fourth Amendment

In order to decide if the force used by the police was okay, the court looked at both the level of risk that physical contact would cause harm as well as the actual harm that was actually inflicted. Here, they found that the police officers used deadly force because bodyweight compression was applied to Scott’s back and neck for 1-2 minutes while Scott became increasingly breathless. This is in line with a prior case, Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056–57 (9th Cir. 2003), where officers went too far when putting their weight on someone’s neck while they were restrained on the ground.

Factor Two: Did the government have a good reason to use this force

The court here looked to, among other things, whether a crime was being committed, whether the suspect was trying to escape or resist arrest, and whether the suspect was a danger to police officers or anybody else. Espinosa v. City and County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010). The court also stated that when dealing with someone with only mental health issues, the government’s interest is going to automatically be limited because they are not dealing with a criminal. Even if the person with mental health issues is acting out. 

The court found that the government did not have a good reason for using force because Scott was not suspected of committing a crime, he listened to officer instructions, and, even though he had two weapons, he did not brandish them and instantly handed them over and submitted to police control. The court also said his struggles were not considered resisting arrest because he did not threaten to or attempt to attack the police. Lastly, because the court thought less intrusive alternatives to bodyweight force were available, they did not believe the police had a good reason to use the level of force that they did. 

Factor Three: Balancing Interests

Lastly, the court looks to see whether the amount of force used by the police officers was necessary. The court here quickly concludes that the bodyweight hold was not necessary because they said that deadly force is not needed to restrain a person with mental health issues so that they can be put into a mental health hold.

Because Scott’s Fourth Amendment Rights were violated, and the police officers had good reason to know that these actions would violate Scott’s rights based off of the existing caselaw, the court ultimately held that qualified immunity does not apply here.

Conclusions

Scott v. Smith imposes a regrettable restraint on first responders’ ability to act. As a result of this decision, law enforcement agencies and officers are now faced with bad choices when responding to people with mental health issues. They can attempt to restrain the subject and secure the scene and risk losing qualified immunity, or direct officers not to respond. 

With qualified immunity now able to be stripped away on a case-by-case basis, agencies are understandably hesitant to secure the scene for firefighters and other first responders to do their work safely and efficiently even when there is no crime or threat of violence. Sacramento Metropolitan Fire Department spokesperson Parker Wilbourn expressed his desire for “either a legislative effort or the courts to make a decision.”  Hopefully, this decision will be reversed.  

Chief of Police Forced Out After Sending Racially-Charged Private Messages: Ninth Circuit Finds No First Amendment Violation by the County as Chief's Speech Not Protected by the First Amendment

    In September of 2024, the Ninth Circuit Court of Appeals ruled that a public employee’s private text messages were not protected under the First Amendment. A former California Chief of Police appealed after the  district court dismissed her  First Amendment retaliation and derivative conspiracy claims. Prior to becoming the Police Chief, , she engaged in a private text conversation in 2013 with a then-friend and coworker in which she shared two images that she received from an undisclosed source. Along with the images, she shared the message “Some rude racist just sent this!!” The images contained a racist epithet and slur. That same day, she forwarded the images to another coworker and then-friend. The messages were not disclosed nor made readily discoverable by the general public. It was clear that the messages were intended for a purely private audience in the context of private conversational exchanges. Several years passed before one of the recipients of the images reported the exchange in retaliation of disciplinary action taken against them by the chief. The Chief was pressured to and did ultimately resign..

    In 2022, she filed suit claiming, among other things, deprivation of the right to free speech under the First Amendment and First Amendment conspiracy. The district court dismissed her complaint for failure to state a claim of a First Amendment violation, holding that Adam’s speech was not a matter of public concern.

First Amendment Analysis

    Public employees do not surrender their First Amendment rights merely by virtue of their position. The First Amendment prohibits government officials from disciplining public employees for having engaged in protected speech. In analyzing whether a public employee’s speech is protected under the First Amendment, courts employ a balancing test established by the United States Supreme Court in Pickering v. Board of Education (1986) 391 U.S. 563. Under Pickering, a plaintiff claiming a violation of their First Amendment rights must establish that: (1) she spoke on a matter of public concern, (2) she spoke as a private citizen rather than a public employee, and (3) the relevant speech was a substantial or motivating factor in the adverse employment action. If the public employee meets this burden, the employer must then demonstrate that it had an adequate justification for treating the employe differently than other members of the general public and that it would have disciplined the employee even absent the protected speech. In short, to show that one’s speech is protected by the First Amendment, a public employee must prove that they spoke as a private citizen on a matter of public concern. The public employee must then prove that the public’s collective interest in the speech outweighs the governmental interest in avoiding disruption to its operations that could or would be caused by that speech.

    In this case, the Court framed the threshold question as whether the statements substantially addressed a matter of public concern. If speech does not do so, there is no actionable cause under the First Amendment. To determine whether a public employee’s speech is a matter of public concern, the court considers the “content, form, and context of a given statement as revealed by the whole record.” (Connick v. Meyers (1983) 461 U.S. 138, 147-48.) Speech involves a matter of public concern when it can be fairly considered to relate to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest. (Lane v. Franks (2014) 573 U.S. 228, 241.) The content of the communication must be of broad societal concern. If the speech concerns only personal or private interest, an action based on a violation of the employee’s First Amendment rights is not the appropriate method of challenging agency discipline. Restricting speech on purely private matters does not implicate constitutional concerns.

    Speech regarding matters of race, religion, or other such topics are a matter of public concern when they involve the public’s interest in governmental conduct that affects society as a whole. (Alpha Energy Savers, Inc. v. Hansen (9th Cir. 2004) 381 F.3d 917, 926-27.) Conversely, speech that complains of private, out-of-work, offensive individual contact by unknown parties, as is in this case, is not of public concern. Additionally, inappropriate or controversial character of a statement is irrelevant to the Pickering analysis.

    The Court determined that the text messages were of private interest, not of public concern. The text messages and distribution of the images expressed only her opinion on being sent the messages, which is a purely private matter. The messages did not discuss generally applicable policies and practices, nor did she suggest that her receipt of the messages was connected to wrongful governmental action. When addressing why she made the speech, the court concluded she intended the messages to be entirely private, conversational in nature, and only meant to convey a personal grievance about receiving offensive images. As such, the district court’s dismissal was affirmed. The court acknowledged dismissal may be unfair, but it cannot be challenged as a violation of her freedom of speech.

    Conversely, the Civil Service Commission of Massachusetts determined that an off-duty Boston Police Officer’s private tweets regarding the January 6^th, 2021, rally in Washington D.C. were protected and the disciplinary action taken against the officer on the basis of the tweets was actionable under the First Amendment. (Abasciano v. Boston Police Department (December 24, 2024) Civ. Serv. Comm. D1-23-033.) The plaintiff in this case was discharged by the Boston Police Department for tweets published from an anonymous twitter while attending the rally. The tweets were sent while the officer was off-duty, from a private account, and they did not identify the plaintiff or his employment with the Boston Police Department.

    The rules and procedures of the Department permitted employees to express political opinions and attend political conventions and rallies. Throughout a series of tweets, the officer publicly commented on the rally, shared his opinions on various political figures and authorities, and generally called for patriotism. Following Pickering, the commission determined that because the tweets were sent as a private citizen, there was nothing to indicate that the plaintiff was acting in his official capacity as a police officer, and the tweets were matters of public concern as they pertained to broad commentary on politics, they were protected. As such the Department was then required to provide justification to restrict the speech. This aspect of the Pickering balancing test is comprised of two prongs: (1) the inflammatory nature of the speech, and (2) whether the speech could reasonably be expected to interfere with Department functions. Several officers testified affirming that it was unlikely that the content and nature of the tweets would interfere with his ability to perform his official duties. As such, the commission ruled in favor of the plaintiff officer and deemed his discharge to be in violation of his First Amendment rights.

    In sum, public employees must be conscious of speech made both in private and in public. Private speech is not protected by the First Amendment but may nonetheless provide the basis for administrative discipline. Alternatively, public speech by a public employee is protected by the First Amendment only when it is clear the speech is made by the officer in their personal, not official, capacity; the speech regards a matter of broad public concern; and the employing agency does not have a greater interest in preventing the speech for the sake of administrative efficiency. 

US Supreme Court Clarifies FLSA Evidentiary Standards

On January 15, the United States Supreme Court issued its ruling in E.M.D. Sales, Inc. v. Carrera, No. 23-217, 2025 WL 96207 (U.S. Jan. 15, 2025) holing the Fair Labor Standards Act's (FLSA) exemptions do not call for heightened evidence standards.

Plaintiffs, sales representatives for a distributor of international food products, brought an FLSA action for unpaid overtime alleging that employer misclassified them as exempt.  Applying a clear and convincing standard, the district court held their employer failed to establish they qualified as outside salesmen exempt from FLSA. The court awarded back overtime and and liquidated damages. The Fourth Circuit affirmed the ruling.

In a unanimous opinion written by Justice Kavanaugh, the Supreme Court held that the preponderance of the evidence standard applies when an employer seeks to show that an employee is exempt from the overtime requirements of the FLSA.  Justice Kavanaugh explained that deviations from the preponderance of the evidence standard in civil litigation in only three scenarios: (1) when a statute requires it; (2) when the Constitution requires it; and (3) when the government otherwise seeks to take “unusual coercive action” against an individual. 

The Social Security Fairness Act Enacted

On January 5, 2025, President Biden signed into law the Social Security Fairness Act (H.R. 82) which repeals the Windfall Elimination Provision (WEP) and the Government Pension Offset (GPO). In so doing, the Bill restores long-denied Social Security benefits to millions of firefighters, peace officers,  and public employees across the nation. 

For over 40 years the WEP and GPO have financially harmed more than 3 million public employees by unfairly reducing or eliminating the Social Security benefits they have rightfully earned during their working years simply because they also receive a government pension.

WEP reduces the earned Social Security benefits of an individual who also receives a public pension from a job not covered by Social Security. Thus, public employees who do not earn Social Security during their public employment but who worked in jobs covered by Social Security for the required 40 quarters, have reduced benefits, even though they have paid into the system. Similarly, the GPO reduced the spousal benefits of public employees. The GPO imposes a two-thirds reduction in benefits received by surviving spouses who also collect a government pension. 

The bipartisan bill previously passed the House on November 12, 2024 by roll call vote of 327-75-1. The act was also supported by 76 senators.