Estate of Joshua Levy, deceased, SUSAN LEVY, in her personal capacity as… v. CITY OF SPOKANE; SPOKANE COUNTY; CHRIS KEHL; MICHAEL MCCASLAND; YAMADA, Sgt.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF JOSHUA LEVY, deceased,
SUSAN LEVY, in her personal capacity as
representative of the Estate of Joshua
Levy,
Plaintiffs,
DAVID BREIDENBACH,
Plaintiff - Appellant,
v.
CITY OF SPOKANE; SPOKANE
COUNTY; CHRIS KEHL; MICHAEL
MCCASLAND; YAMADA, Sgt.,
Defendants - Appellees.
No. 12-35119
D.C. No. 2:10-cv-00233-EFS
MEMORANDUM*
SUSAN LEVY, in her personal capacity as
representative of the Estate of Joshua
Levy; ESTATE OF JOSHUA LEVY,
deceased,
Plaintiffs - Appellants,
and
No. 12-35154
D.C. No. 2:10-cv-00233-EFS
FILED
JUL 22 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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DAVID BREIDENBACH,
Plaintiff,
v.
CITY OF SPOKANE; SPOKANE
COUNTY; CHRIS KEHL; MICHAEL
MCCASLAND; YAMADA, Sgt.,
Defendants - Appellees.
SUSAN LEVY, in her personal capacity as
representative of the Estate of Joshua
Levy; ESTATE OF JOSHUA LEVY,
deceased,
Plaintiffs,
and
DAVID BREIDENBACH,
Plaintiff - Appellee,
v.
CITY OF SPOKANE; SPOKANE
COUNTY; CHRIS KEHL; MICHAEL
MCCASLAND; YAMADA, Sgt.,
Defendants - Appellants.
No. 12-35182
D.C. No. 2:10-cv-00233-EFS
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding

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Argued and Submitted July 11, 2013
Seattle, Washington
Before: M. SMITH and N.R. SMITH, Circuit Judges, and WALTER, Senior
District Judge.**
The Estate of Joshua Levy and David Breidenbach (collectively, plaintiffs)
appeal the district court’s order granting summary judgment on behalf of the City
of Spokane, the County of Spokane, and certain individual law enforcement
defendants. Plaintiffs allege that the defendants used constitutionally excessive
force against Levy—an individual known to have serious mental health
problems—resulting in Levy’s fatal jump from a bridge. Because the parties are
familiar with the factual and procedural history of this case, we repeat only those
facts necessary to resolve the issues raised on appeal. We affirm.
To overcome a qualified immunity defense, a plaintiff must establish both:
(1) that the defendants violated a statutory or constitutional right; and (2) that the
right was “clearly established” at the time of the challenged conduct. Pearson v.
Callahan, 555 U.S. 223, 232 (2009). In analyzing this issue, we may address
either prong first. See id. at 236. If analysis of one prong proves dispositive, we
need not analyze the other. See id. at 236, 241–43.
** The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by designation.
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“A Government official’s conduct violates clearly established law when, at
the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently
clear’ that every ‘reasonable official would have understood that what he is doing
violates that right.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Plaintiffs cite Deorle v.
Rutherford, 272 F.3d 1272 (9th Cir. 2001), for the proposition that the defendants
were on notice that it was unlawful to attempt to use a Taser to temporarily
incapacitate a fatigued and unresponsive mentally-ill individual who was
contemplating suicide, and to further “rush” that individual in order to detain him
and bring him to safety. See al-Kidd, 131 S. Ct. at 2084 (holding that courts must
not “define clearly established law at a high level of generality”). Plaintiffs
contend the defendants’ actions were particularly unreasonable because Levy was
not inside the bridge portico at the time the defendants acted. Deorle, however, is
inapposite, and plaintiffs cite no other case, let alone a “robust consensus of cases
of persuasive authority,” id. at 2084 (citation omitted), that clearly establishes the
illegality of the defendants’ conduct here. Because the defendants could have
reasonably believed that their conduct under these circumstances was lawful, they
are entitled to qualified immunity.
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Plaintiffs’ Monell claims also fail, because plaintiffs cannot show that any
municipal defendant ratified the individual defendants’ actions. See City of St.
Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (holding that a municipality can be
held liable for an isolated constitutional violation if a final policymaker ratified a
subordinate’s actions). Here, plaintiffs point to no evidence to support their
ratification theory. For instance, plaintiffs never identify the relevant “authorized
policymakers” for any defendant. See id. Nor do plaintiffs present evidence that
demonstrates that any authorized policymaker approved of the individual
defendants’ actions.
Finally, Breidenbach’s emotional distress claim fails because it is derivative
of plaintiffs’ rejected constitutional claims.1
AFFIRMED.
1 The claims raised in defendants’ cross-appeal are denied as moot.
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