“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Ninth Circuit Trump judge Daniel Collins wrote a dissent in the December case of Slater v. Deasey that would make it harder to hold law enforcement officials accountable for negligently causing the death of a suspect.

As alleged by Joseph Slater’s family, Sheriff’s deputies tried to arrest him when he was seen pulling wires out of a gas station building. Slater suffered from mental illness and drug addiction, and panicked that they were not genuine law enforcement and were actually trying to kill him. After a series of escalating actions to get Slater into the car, the deputies hogtied him and held him stomach-down, putting enough pressure on his back and shoulders to leave extensive bruising. Slater’s family asserted that this compromised his ability to breathe, compressed his abdomen and chest, caused him to vomit, and made him inhale the vomit into his lungs so he could not breathe. When the deputies noticed he was not speaking or breathing, they summoned paramedics, who could not revive him, and he died.

Slater’s family sued the deputies for causing his death. A unanimous panel ruled that the deputies should have known their actions were unconstitutional, so they did not have qualified immunity and the case against them could go forward. A Ninth Circuit en banc panel voted 7-4 not to review that ruling. Collins, writing the dissent, agreed that the deputies had applied unconstitutionally excessive force. But he wrote that court precedents were not similar enough to this case to put the law enforcement officials on notice and thereby hold them liable for their actions.

The majority found these circumstances analogous to a circuit precedent called Drummond. In that case, the court had held that squeezing the breath from a compliant, prone, and handcuffed individual had been an unreasonable degree of force under the Constitution.

Relying on the two scenarios not being identical, Collins focused on the differences to argue that Drummond did not “squarely govern” here as required by the Supreme Court. For instance, he stressed that the police in Drummond had ignored the victim’s pleas for air. Slater was unable to make such pleas because of the deputies actions, but Collins nonetheless concluded the deputies were not on notice that he couldn’t breathe. But, as the majority explained, Drummond had never been interpreted to require the victim to beg for air in order for force asphyxiating him to be deemed unreasonable.

Collins also focused on the fact that Drummond was “a straightforward case of compression asphyxia,” while Slater’s family claimed that he died of “positional or restraint asphyxia.” His dissent argued that the deputies in Slater’s case could not reasonably have been expected to know that they were putting him at risk of being unable to breathe. But the majority pointed out that other circuits have recognized Drummond as not being so narrow in its scope.

Since Collins’ view did not command a majority, Slater’s family will have a chance to argue that the deputies responsible for Slater’s death should be held accountable. Moreover, the decision could discourage other law enforcement officials from using unconstitutionally excessive force.