Opinion · Court of Appeals for the Fifth Circuit
Aguirre v. City of San Antonio
995 F.3d 395
- Type
- Opinion
- Court
- Court of Appeals for the Fifth Circuit
- Jurisdiction
- Federal
- Date
- 2021-04-22
- Topic
- litigation
holding that “intentional conduct, no matter how it is pled, falls under the TTCA’s sovereign immunity waiver exception” | noting that a subject’s “plainly erratic behavior” gave officers “reason to know of the substantial risk that [the subject] . . . was in a state of excited delirium” | noting that, “[a]t the very least, [a 45 minute] delay certainly wasn't ‘wanton’ or ‘reckless’” (citations omitted) | holding a genuine dispute of material fact existed with respect to whether a handcuffed subject surrounded by five police officers posed an immediate threat justifying the use of a maximal prone restraint | explaining that “it is unreasonable for an officer to use injurious force against a non- resisting, non-dangerous individual who is not suspected of a serious crime” | finding a Fourth Amendment violation when officers used a maximal prone restraint despite the presence of a medical tech officer | applying the TTCA to determine whether the City of San Antonio’s governmental im- munity has been waived | limiting to “video evidence [that] provides so much clarity that a reasonable jury could not believe [the nonmoving party’s] account” | affirming denial of TTCA claim because plaintiff’s “negligent use of handcuffs” claim was based on the officers’ use of intentional conduct and thus was an intentional tort claim barred under the TTCA | assessing officer demeanor in making a determination on deliberate indifference claim | “Negligence or even gross negligence is not enough, the officials must have actual knowledge of the substantial risk” | “intentional conduct, no matter how it is pled, falls under the TTCA’s sovereign immunity waiver exception” (citing Petta, 44 S.W.3d at 580) | [I]ntentional conduct, no matter how it is pled, falls under the TTCA’s sovereign immunity waiver exception.” | “[I]ntentional conduct, no matter how it is pled, falls under the TTCA’s sovereign immunity waiver exception.” (internal quotation omitted) | “[I]ntentional conduct, no matter how it is pled, falls under the TTCA’s sovereign immunity waiver exception.” | “[I]ntentional conduct, no matter how it is pled, falls under the TTCA’s sovereign immunity waiver exception.” | “Negligence or even gross negligence is not enough: the officials must have actual knowledge of the substantial risk.” | “[I]ntentional conduct, no matter how it is pled, falls under the TTCA’s sovereign immunity waiver exception.” | “Even if [Frank] were suspected of a serious crime, this would not necessarily be dispositive.” | “When video evidence is ambiguous or in fact supports a nonmovant’s version of events . . . the modified rule from Scott has no application.” (citations omitted) | “While these measures may have been inadequate, Plaintiffs do not present any evidence that the Officers knew they were insufficient and intentionally failed to do more out of indifference to Aguirre’s well-being.” | “Texas courts have repeatedly rejected the argument that intentional conduct by police that also forms the basis of excessive force claims . . . can give rise to cognizable claims under the TCCA.” | “Texas courts have repeatedly rejected the argument that intentional conduct by police that also forms the basis of excessive force claims . . . can give rise to cognizable claims under the TCCA.” | “Texas courts have repeatedly rejected the argument that intentional conduct . . . that also forms the basis of excessive force claims . . . can give rise to cognizable claims under the [TTCA].” | “Section 101.021(2) of the TTCA ‘waives governmental immunity for certain negligent conduct, but does not waive immunity for claims arising out of intentional torts.’” (quoting City of Watauga v. Gordon, 434 S.W.3d 586, 594 (Tex. 2014)) | “When video evidence is ambiguous or in fact supports a nonmovant’s version of events, or when there is any evidence challenging the video’s accuracy or completeness, the modified rule from Scott has no application.” (citations omitted) | “It has long been clea
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Case: 17-51031 Document: 00515833607 Page: 1 Date Filed: 04/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 22, 2021
No. 17-51031 Lyle W. Cayce
Clerk
Estate of Jesse Aguirre, Deceased; Blanca Aguirre,
Individually and as Next Friend of Jesse Aguirre, Jr.,
Plaintiffs—Appellants,
versus
City of San Antonio; Officer Cristina Gonzales;
Officer Roberto Mendez; Officer Jennifer Morgan;
Officer Bettina Arredondo; Officer Benito Juarez,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:15-CV-371
Before Jolly, Dennis, and Higginson, Circuit Judges.
James L. Dennis, Circuit Judge:
The family of Jesse Aguirre (the Plaintiffs) filed this 42 U.S.C. § 1983
lawsuit alleging that officers of the San Antonio Police Department violated
Aguirre’s constitutional rights by causing his death through the use of
Circuit Judge Jolly joins this opinion except as to Parts I & II. Circuit
Judge Higginson joins this opinion except as to § II.B.
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excessive force—specifically, by contorting and holding his body in a prone,
hog-tie-like, “maximal-restraint position” during his arrest, leading to his
dying from asphyxiation. Aguirre’s family claimed that five of the officers
killed Aguirre by holding him face down on pavement with his hands cuffed
behind his back and his legs restrained, bent at the knees, and crossed against
his buttocks, for approximately five-and-a-half minutes, during which time
Aguirre stopped breathing. They further asserted claims of deliberate
indifference against the individual officers, as well as claims that the City of
San Antonio was liable for failing to train its officers not to hold or bind
arrestees in hog-tie-like positions conducive to asphyxiation. The district
court granted summary judgment to the individual police officers (Officers
or Defendant Officers), concluding that they were entitled to qualified
immunity, and to the city of San Antonio on the ground that the Plaintiffs had
not established a city policy or custom that was the moving force behind the
Officers’ actions. For the reasons set forth below, we reverse summary
judgment for the Defendant Officers as to the excessive force claims, affirm
as to the district court’s other rulings, and remand the case for further
proceedings.
I. FACTUAL AND PROCEDURAL BACKGROUND
In reviewing an appeal from summary judgment, we “view the facts
in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor.” See Deville v. Marcantel, 567 F.3d 156
, 163–64 (5th
Cir. 2009). The evidence presented, viewed in the light most favorable to the
non-moving Plaintiffs, establishes the following:
In the early evening of April 12, 2013, the San Antonio Police
Department received complaints from motorists that a man who appeared
mentally disturbed, later identified as Jesse Aguirre, was walking and waving
his hands near the narrow median of Highway 90. Highway 90 is a heavily
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traveled eight-lane expressway with a three-foot high cement median barrier
separating its four eastbound lanes from its four westbound lanes. The first
four Defendant Officers that responded to the complaints—Cristina
Gonzales, Roberto Mendez, Jennifer Morgan, and Bettina Arredondo—
arrived in separate vehicles on the eastbound side of the expressway opposite
where Aguirre was walking eastward near the median on the westbound side.
What occurred next is documented by the videos taken by dashboard
cameras in the Officers’ vehicles,1 which they left parked near the median on
the eastbound side of the expressway. The videos were introduced by the
Plaintiffs in opposition to defendants’ motions for summary judgment.
Officer Gonzales was the first to arrive. She left her vehicle blocking
the left-most eastbound lane and approached Aguirre on foot with her firearm
pointed at him, ordering him to “come here” and threatening, “I’m going to
shoot you, m-----r-f----r.” When Aguirre did not acknowledge the command
and continued to walk, Gonzales stepped over the median and followed him.
Soon thereafter, Officer Morgan, pointing her gun, and Officer Mendez,
pointing his taser, also approached Aguirre along the eastbound side. Aguirre
then stopped, bent forward, and placed his hands on the median; Officer
Gonzalez rushed forward, grabbed Aguirre’s arms, and handcuffed Aguirre’s
hands behind him while he remained bending over the median. According to
the video evidence, Aguirre did not visibly resist being handcuffed. While
handcuffing Aguirre, the Officers noticed that he had fresh needle marks on
his arms, indicating that he had recently used intravenous drugs.
1
Though they are disturbing, the content of these videos plays a central role in our
evaluation of this appeal, and we invite a reader to view the clearest and most inclusive
among the videos in order to fully understand our decision. See Plaintiffs’ Exhibit 1,
available at https://www.ca5.uscourts.gov/opinions/pub/17/17-51031.mp4.
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The three Officers then pulled Aguirre over the median barrier,
causing him to land on his head on the eastbound side of the expressway. The
three Officers had blocked the two left-most eastbound lanes with their cars,
preventing traffic from accessing the area where they held Aguirre. The
Officers patted Aguirre down, finding no weapon, pulled him to his feet,
walked him over to the front of Officer Mendez’s car, and bent him over the
hood face down with his hands cuffed behind him.
After one or two more officers arrived, they assisted in moving
Aguirre from the car hood to the ground onto his stomach next to the median
with his hands still cuffed behind him. The video does not show that Aguirre
resisted during this maneuver, but instead that he stumbled with the Officers
toward the median. After Aguirre was placed prone on his stomach, Officer
Gonzales pushed his legs up and crossed them near his buttocks and kneeled
forward on Aguirre’s legs, holding them near Aguirre’s bound hands in a
hog-tie-like position. Officer Mendez knelt with one knee on the ground and
the other on Aguirre’s back, later changing position to hold Aguirre’s
shoulders and cheek down against the pavement with his hands. Officer
Mendez testified that he was using part of his body weight to hold Aguirre
down, thus applying pressure to Aguirre’s back and neck. Officers Morgan
and Arredondo then joined Gonzales and Mendez, placing their hands on
Aguirre’s arms and back to hold him prone in the maximal-restraint position.
Several more officers arrived, and, with Aguirre still being held in that
position, the group of officers milled around near where Aguirre was being
held, speaking to each other and into their radios. Officer Benito Juarez, a
medical tech officer, arrived after Aguirre had been placed in the prone
maximal-restraint position, but the record does not disclose that Juarez
offered any advice or assistance to the other Officers about the manner in
which Aguirre was being held. Officer Arredondo observed that Aguirre’s
lips turned blue while he was held in the prone maximal-restraint position,
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and she thought it was the result of drugs he had taken. At some point during
the Officers handling of Aguirre, they called for a police “wagon” to
transport him.
The Officers held Aguirre in the prone maximal-restraint position for
approximately five-and-a-half minutes, and during this time Aguirre stopped
breathing. After the five-and-a-half minutes had elapsed, the Officers noticed
that Aguirre was no longer breathing or responsive, and they turned him over
on his back and removed the handcuffs. Juarez jogged to the trunk of his car
to retrieve his medical equipment. At this point, the Officers appear to be in
good spirits; according to the Plaintiffs, in the dashcam videos, Juarez can be
seen smiling as he jogs to his vehicle, and several other Officers likewise
appear to be smiling and laughing as they await Juarez’s return around
Aguirre’s body. Juarez returned at a walk with his medical bag approximately
one minute after he left. Aguirre remained unresponsive, leading Mendez to
perform a “sternum rub”2 in an unsuccessful attempt to rouse him. When
this and similar techniques proved unavailing, Emergency Medical Services
(“EMS”) was contacted and one of the Officers began to attempt
cardiopulmonary resuscitation (“CPR”), but she stopped after about twenty
seconds. Eventually, four minutes and thirty-eight seconds after Aguirre was
turned over, Juarez began administering CPR in earnest. Juarez and other
Officers continued to perform CPR on Aguirre until EMS arrived, and, the
video shows the Officers’ body language and demeanor had changed by this
time, becoming more serious and no longer smiling or laughing. The Officers
were ultimately unsuccessful at reviving Aguirre. A subsequent autopsy
2
“A sternum rub is the application of painful stimulus with the knuckles of closed
fist to the center chest of a patient who is not alert and does not respond to verbal stimuli.”
Joseph Mistovich, Med, EMS1, Misinterpreting The Results of a Sternum Rub (June 3, 2008),
https://www.ems1.com/ems-products/patient-handling/articles/misinterpreting-the-
results-of-a-sternum-rub-Zk7mSQgBWXfyvygq/
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report concluded that the position in which the Officers had placed Aguirre
had caused him to asphyxiate, stating that “[d]ue to the restraint by police,
this case is classified as a homicide.”
The Plaintiffs’ medical expert, Dr. Brant Mittler—who reviewed,
among other materials, several medical examiner reports; photographs; and
autopsies; as well as the Officers’ statements; statements by Aguirre’s
girlfriend and the officer who interviewed the Officers following the incident;
and the dash cam videos—opined about the known dangers of the position in
which the Officers had placed Aguirre. The position “involved pressure to .
. . Aguirre’s back and to his neck and his legs were pulled up backwards in
the prone position. . . . over the course of over 5 minutes.” According to Dr.
Mittler, this positioning (1) “restricted . . . Aguirre’s ability to expand his
lungs and oxygenate his blood and importantly remove carbon dioxide and
maintain a normal PH of his blood,” (2) “reduced venous return to the heart
and reduced his cardiac output,” (3) “compressed his vena cava,” (4)
“contributed to a lowered blood PH which contributed to . . . Aguirre’s death
via inducement of a fatal cardiac arrhythmia,” (5) induced extreme anxiety
and stimulated more catecholamine production which contributed to . . .
Aguirre’s death,” and (6) affected . . . Aguirre’s ability to breathe in oxygen
and expel carbon dioxide.” Moreover, presumably relying of Aguirre’s
autopsy, Dr. Mittler noted that, “Aguirre had cocaine in his system at the
time of his death,” which can “increase oxygen demand and muscle fatigue,”
heightening the risk of asphyxiation.
Dr. Mittler also cited—and the Plaintiffs introduced into the record—
a bulletin published by the United States Department of Justice that was
provided to local law enforcement agencies in 1995 addressing the dangers of
positional asphyxia precipitated by “cocaine-induced excited delirium,” a
condition Aguirre was suffering from according to his autopsy. Notably, this
bulletin recommends against the use of “maximally prone restraint
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techniques” when excited delirium is evident, as, according to the bulletin,
this factor is “found frequently in deaths involving positional asphyxia.”3
Additionally, the San Antonio Police Manual in effect at the time of Aguirre’s
death warned against using “any form or position commonly known as hog-
tying” on suspects who “are violent and/or appear to be under the influence
of drugs.” And an officer with the San Antonio Police Department’s Mental
Health Detail testified that all San Antonio police officers are required to
attend a 40-hour training on how to recognize “excited delirium syndrome,”
which included a warning that “[o]fficers need to be mindful of positional
asphyxia,” because prone positions “may make it more difficult for the
person to breathe.”
Aguirre’s estate and his widow, Blanca Aguirre, on behalf of herself
and as next-friend of their minor child, brought excessive force, deliberate
indifference, failure to train, and Texas tort claims against the City and the
Defendant Officers. The City of San Antonio and the Defendant Officers
filed motions for summary judgment on all claims, which included attached
affidavits by the Defendant Officers in support. The Plaintiffs responded,
submitting twenty-two evidentiary exhibits, including the aforementioned
dashboard camera videos taken during the incident and their experts’ reports
on the excessiveness of the force brought to bear on Aguirre and the manner
in which it caused his asphyxiation and death. The district court dismissed
the estate as a party, finding that no personal representative had yet been
appointed who had the capacity to sue on the estate’s behalf. The district
3
The bulletin noted that “a vicious cycle” often leads to such deaths, in which a
“suspect is restrained in a face-down position” and “[w]eight is applied to the person’s
back,” causing “[t]he individual [to] experience[] increased difficulty breathing.” This
causes the “person [to] struggle[] more violently,” which is “[t]he natural reaction to
oxygen deficiency,” and this struggle can in turn prompt the officer to apply “more
compression to subdue the individual,” exacerbating the problem.
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court then granted summary judgment to the City and Defendant Officers,
finding that the Officers were entitled to qualified immunity on the Plaintiffs’
excessive force and deliberate indifference claims, and that the Plaintiffs
could not establish municipal liability or their state law claims. The Plaintiffs
appeal.
II. QUALIFIED IMMUNITY AND EXCESSIVE FORCE
We review the district court’s grant of summary judgment de novo.
Darden v. City of Fort Worth, 880 F.3d 722, 727
(5th Cir. 2018). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact,” meaning “the movant is entitled to judgment as a matter of law.”Id.
(citing FED. R. CIV. P. 56(a)). “A fact is ‘material’ if it ‘might affect the outcome of the suit under the governing law.’” Bazan ex rel. Bazan v. Hidalgo Cty.,246 F.3d 481, 489
(5th Cir. 2001) (emphases omitted) (quoting Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248
(1986)).
Under the doctrine of qualified immunity, “[g]overnment officials
performing discretionary functions generally are shielded from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). Thus, to establish whether the Defendant Officers are entitled to qualified immunity at the summary judgment stage, we must “engage in a two-pronged inquiry. The first asks whether the facts, taken in the light most favorable to the party asserting the injury, show the officer’s conduct violated a federal right.” Tolan v. Cotton,572 U.S. 650
, 655–56 (2014) (cleaned up). “The second prong of the qualified-immunity analysis asks whether . . . the right in question was ‘clearly established’ at the time of the violation.”Id.
at 656 (citing Hope v. Pelzer,536 U.S. 730, 739
(2002)).
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When a defendant official moves for summary judgment on the basis
of qualified immunity, “the burden then shifts to the plaintiff, who must
rebut the defense by establishing a genuine fact issue as to whether the
official’s allegedly wrongful conduct violated clearly established law.”
Darden, 880 F.3d at 727
(quoting Brown v. Callahan,623 F.3d 249, 253
(5th Cir. 2010)). In determining whether the plaintiffs have met this burden and can withstand summary judgment, however, we view all the facts “in the light most favorable to the non-moving party” and draw “all justifiable inferences” in their favor.Id.
(cleaned up); see FED. R. CIV. P. 56(a).
A. Constitutional Violation
We begin with the first prong of qualified immunity, considering
whether Plaintiffs have raised a genuine issue of material fact regarding
whether Aguirre’s federal rights were violated. See Darden, 880 F.3d at 727
. “When a plaintiff alleges excessive force during an investigation or arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures.” Tolan,572 U.S. at 656
(citing Graham v. Connor,490 U.S. 386, 389, 394
(1989)). The Fourth Amendment provides protections against an officer’s use of excessive force to effect an arrest or other seizure. Graham,490 U.S. at 389, 394
. To prevail on an excessive-force claim, the plaintiff must show (1) an injury, (2) that resulted directly from an officer’s use of force, and (3) that the force used was “objectively unreasonable.” Flores v. City of Palacios,381 F.3d 391, 396
(5th Cir. 2004). In this case, it is undisputed that Aguirre’s death is a sufficient injury and that it resulted from the Officers’ placing him in the maximal restraint position. Our focus is therefore on the third element: unreasonableness, or the excessiveness of placing and holding Aguirre in the prone, maximal-restraint position under the circumstances. Cf. Goode v. Baggett,811 F. App’x 227
, 232 (5th Cir. 2020)
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(unpublished) (restricting analysis to the second two elements of an excessive
force claim when the first element was uncontested).4
To determine whether the amount of force used was excessive, we
must balance “the nature and quality of the intrusion on the individual’s
Fourth Amendment interests against the importance of the governmental
interests alleged to justify the intrusion.” Tolan, 572 U.S. at 656
(quoting Tennessee v. Garner,471 U.S. 1, 8
(1985)). Because this test accounts for the nature and quality of the intrusion upon an individual’s Fourth Amendment rights, claims that law enforcement unreasonably employed deadly force— the ultimate intrusion—are treated as “a subset of excessive force” claims. Bazan, 246 F.3d at 487–88 (citing Gutierrez v. City of San Antonio,139 F.3d 441, 446
(5th Cir. 1998)). We therefore analyze whether, taking the evidence in the light most favorable to Plaintiffs, the level of force the Officers used was unreasonably excessive to the needs of the situation, see Graham,490 U.S. at 389
, including whether the Officers unreasonably and unnecessarily employed deadly force against Aguirre, see Gutierrez,139 F.3d at 446
.
1. Graham Factors
“Excessive force claims are necessarily fact-intensive; whether the
force used is excessive or unreasonable depends on ‘the facts and
circumstances of each particular case.’” Darden, 880 F.3d at 728
(cleaned
up). “In making this determination, a court should consider the totality of
the circumstances, ‘including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by
4
Though Goode does not bind us due to its being an unpublished decision, see Gate
Guard Servs., L.P. v. Perez, 792 F.3d 554
, 561 n.3 (5th Cir. 2015) (citing 5TH CIR. R. 47.5),
we find its reasoning and conclusions on many of the same issues presented in this case
persuasive and correct.
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flight.’” Id.
at 728–29 (quoting Graham,490 U.S. at 396
). When evaluating these factors, which the Supreme Court set forth in Graham v. Connor,490 U.S. 386, 389, 394
(1989), we keep in mind that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene.” Darden,880 F.3d at 729
(quoting Graham,490 U.S. at 396
). In this case, our evaluation of each of these factors under the Plaintiffs’
version of the facts indicates that the intrusion on Aguirre’s Fourth
Amendment interests outweighed the Officers’ interest in placing and
holding Aguirre in the maximal-restraint position, rendering their utilization
of the technique unreasonable. Cf. Goode, 811 Fed. App’x at *232 (holding
that officers’ hog-tying of the suspect was unreasonable because, based on
the Graham factors, they had a “relatively weak interest” in using the
technique).
As to the first factor, Defendants do not attempt to show that the
severity of any crime committed by Aguirre weighed in favor of the level of
force used by the Defendant Officers. In fact, defendants do not articulate
any criminal investigatory function justifying their actions, and instead rely
on the existence of a threat to the public safety—namely, the potential danger
to motorists and himself that Aguirre’s mental disturbance and walking along
the median of the eight-lane highway caused. At most, the crime at issue was
a traffic offense. See Deville v. Marcantel, 567 F.3d 156, 167
(5th Cir. 2009)
(noting that a minor traffic violation makes “the need for force substantially
lower than if [plaintiff] had been suspected of a serious crime”); Goode, 811
F. App’x at *232 (holding that minor, nonviolent nature of suspected crime
weighed against the reasonableness of hog-tying the suspect). Because the
Defendant Officers do not articulate any crime supporting this element of the
Graham analysis, we must assume that, from the point of view of a reasonable
officer at the scene, Aguirre was guilty of no serious crime but, because of his
mental disturbance, had put himself and others in a dangerous situation and
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required assistance. This factor thus weighs against it being reasonable or
necessary to place Aguirre in the maximal-restraint position for over five
minutes.5
In this case, the second and third Graham factors that we must
consider—whether the level of force used was needed to mitigate an
immediate threat to the Officers or public safety and whether Aguirre was
resisting the Officers in such a way that the force was necessary to effect and
maintain his seizure and security—overlap. See Graham, 490 U.S. at 396
.
The Defendant Officers maintain on appeal that Aguirre’s attempts
to break free “posed a substantial and immediate risk of serious physical
injury or death to not only the Defendants, but to innocent civilians.” In their
declarations below, the Defendant Officers stated that Aguirre was resisting
and they feared that he would break away and run into traffic, causing a
dangerous collision and potentially dragging one of the Officers with him. But
the Plaintiffs’ summary judgment evidence and this court’s own review of
the video evidence at minimum raise genuine questions about whether it was
objectively reasonable to believe Aguirre was actively resisting or even
physically capable of posing an immediate safety threat that would justify the
Defendant Officers in using extraordinarily dangerous force by placing and
holding him in the prone maximal-restraint position that led to his death.6
5
Even if Aguirre were suspected of a serious crime, this would not necessarily be
dispositive. As discussed below, using violent force to arrest an individual for even a serious
crime may be unauthorized when the suspect poses no immediate safety threat and does
not resist the arrest. See Darden, 880 F.3d at 729–31 (weighing the severity of a drug crime
in favor of officers but still reversing officers’ summary judgment on excessive force claim
because the other two factors outweighed the seriousness of the offense factor).
6
Officers and courts must keep in mind, that “an exercise of force that is
reasonable at one moment can become unreasonable in the next if the justification for the
use of force has ceased.” Lytle v. Bexar Cty., 560 F.3d 404, 413
(5th Cir. 2009). So even if
a seized person’s conduct earlier in the encounter amounted to active resistance, “the force
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As evidence in opposition to summary judgment, the Plaintiffs also
offered the report of Lance Platt, Ph.D., a police excessive force expert. Platt,
a former Master Police Officer and training coordinator, reviewed the police
videos, the coroner’s autopsy report, and the Officers’ affidavits. Based on
his review of the videos and the other evidence, Platt specifically controverts
the Officers’ averments that they had reason to be concerned that Aguirre
“might break away . . . and run into traffic or drag [officers] into traffic.” In
Platt’s assessment of the police videos, he observed that “Aguirre walked to
the patrol car” after being cuffed “with no resistance surrounded by three
police officers.” Further, according to Platt, Aguirre “does not appear to
resist in any way in the 1 minute and 4 seconds that he is held against the hood
of the patrol car,” and “does not physically resist at any time” while he is
restrained on the ground. Platt additionally stated that, if the Officers had
instead “s[a]t Mr. Aguirre up and place[d] his back against the concrete
barrier when he started moaning and complaining while held face down on
the pavement,” “the fact that [Aguirre] was handcuffed behind his back and
surrounded by five Police Officers in my opinion [would have] created an
environment in which it would have been very difficult for Mr. Aguirre to
stand up and escape or run into traffic.” Platt elaborated that Aguirre also
“could have easily . . . been walked to the back door of the Officer’s patrol
car and been put into the patrol car, since Officer Gonzales appears to have
checked him for weapons and none were apparently located.” “[T]he five
officers could have safely controlled . . . Aguirre and placed him into the
patrol car,” he reiterated.
As related above, the Plaintiffs also introduced an expert report and
deposition by Dr. Brant Mittler, a cardiologist and licensed attorney. In
calculus changes substantially once that resistance ends.” Curran v. Aleshire, 800 F.3d 656, 661
(5th Cir. 2015).
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addition to his medical explanation of Aguirre’s death that we previously
recounted, Dr. Mittler provided findings, opinions, and conclusions from the
police videos regarding Aguirre’s lack of physical resistance throughout the
encounter:
1. The decedent, Mr. Aguirre, never appears to resist arrest
after he is pushed over the highway divider contrary to the
sworn witness statements by several officers at the scene.
2. There is no visual evidence of kicking by Mr. Aguirre while
under restraint by the SAPD officers. I see no aggressive or
restrictive acts by Mr. Aguirre such as flailing of his arms or
attempts to head butt or bite after he is placed in a bent over
position on the police car and later restrained in a prone
position.
3. Mr. Aguirre while in the prone position and being restrained
does not appear to resist the officers who are restraining him.
4. Mr. Aguirre becomes limp and not moving while in the prone
position under restraint by the SAPD officers.
5. Several minutes (approximately 4 minutes and 38 seconds)
ensue between the time Mr. Aguirre become[s] limp and not
moving and when the SAPD officers start[] what would be
termed effective CPR.
6. Mr. Aguirre became unresponsive while in the prone
position and being restrained by the SAPD officers. There is
never a report of any viable heart rhythm after he becomes limp
and unresponsive.
7. The restraint used by the SAPD officers involved pressure
to Mr. Aguirre’s back and to his neck and his legs were pulled
up backwards in the prone position. This occurred over the
course of over 5 minutes and was being used when he became
unresponsive.
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Our own review of the video evidence from the dashboard cameras
further supports the conclusion that there are genuine disputes regarding
facts material to whether the Officers’ use of force was excessive. The
Officers contend, and the district court erroneously found, that this case is
analogous to Scott v. Harris, 550 U.S. 372, 380
(2007), in which the Supreme
Court held that the normal rules of summary judgment do not apply when
undisputedly accurate video evidence blatantly contradicts a non-movant’s
version of events so thoroughly that it could not reasonably be believed. We
emphatically disagree because in this case, the video supports rather than
contradicts the non-movant Plaintiffs’ account of the incident.
In Scott, a motorist who had been involved in a high-speed chase with
law enforcement brought a § 1983 suit against an officer who rammed his car
from behind, causing the motorist to run off the road and crash, which
rendered him a quadriplegic. Id. at 375-76. The motorist argued that, prior to
the officer’s maneuver, his getaway had not endangered the lives of
pedestrians or other motorists because the roads were nearly empty of other
cars and he had maintained control of his vehicle the entire time. Id. He
accordingly maintained that the officer’s ramming his car amounted to
unreasonable, excessive force in violation of his Fourth Amendment rights.
Id. at 376. The officer moved for summary judgment and, in support,
introduced a dash cam video from his patrol car that depicted, in the words
of the Supreme Court, something “resembl[ing] a Hollywood-style car chase
of the most frightening sort.” Id. at 380. The video showed the motorist’s
“vehicle racing down narrow, two-lane roads in the dead of night at speeds
that are shockingly fast. . . . swerv[ing] around more than a dozen other cars,
cross[ing] the double-yellow line, and forc[ing] cars traveling in both
directions to their respective shoulders to avoid being hit.” Id. at 379. It
further indicated that the motorist had “run multiple red lights and travel[ed]
for considerable periods of time in the occasional center left-turn-only lane,
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chased by numerous police cars forced to engage in the same hazardous
maneuvers just to keep up.” Id. at 379-380.
On review, the Supreme Court acknowledged the normal rule that,
when deciding summary judgment, “courts are required to view the facts and
draw reasonable inferences in the light most favorable to the party opposing
the summary judgment motion,” and that “[i]n qualified immunity cases,
this usually means adopting . . . the plaintiff’s version of the facts.” Id. at 378
(cleaned up). But the Court reasoned that the existence of an undisputedly
accurate video of the incident that totally belied the motorist’s claims that he
was driving safely added an unusual “wrinkle” to the case. Id. In the highly
unusual situation in which the nonmovant’s story is so “utterly discredited”
by evidence documenting the encounter that no reasonable factfinder could
accept that version of events, the Court held, the regular rules of summary
judgment must give way: “[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable
jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Id. at 380.
As we have since made clear, Scott was not an invitation for trial courts
to abandon the standard principles of summary judgment by making
credibility determinations or otherwise weighing the parties’ opposing
evidence against each other any time a video is introduced into evidence. See
Darden, 880 F.3d at 730
. Rather, Scott was an exceptional case with an extremely limited holding. “[A] court should not discount the nonmoving party’s story unless contrary video evidence provides so much clarity that a reasonable jury could not believe his account.”Id.
When video evidence is ambiguous or in fact supports a nonmovant’s version of events, seeid.,
or when there is any evidence challenging the video’s accuracy or completeness, see Scott,550 U.S. at 378
, the modified rule from Scott has no
application. Only when the record eliminates any feasible claim that the
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nonmovant’s account of events is true may a court disregard the normal
summary judgment rule that it must credit that party’s account if it is
supported by sufficient evidence. See id.
(citing Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248
(1986)). That “difficult” and “demanding” standard for disregarding the injured person’s version of the incident is clearly not met in this case.7 Darden,880 F.3d at 730
.
Plaintiffs—the nonmovants in this case—contend that Aguirre was
not resisting and did not pose a significant danger to the Officers, the public,
or himself at the time the Officers placed him in the maximal-restraint
position. Rather than “utterly discredit[ing]” the Plaintiffs’ version of
events, cf. Scott, 550 U.S. at 380
, the video evidence in this case tends to
support it. First, the video evidence shows that patrol cars blocked the left
two of the four eastbound lanes on the highway, and that the Officers’ and
Aguirre’s interactions took place next to the median, with the patrol cars
forming a barrier between them and traffic. The video also shows that traffic
had slowed considerably by the time the Officers bent Aguirre over the patrol
car hood. At that point, at least five Officers were holding Aguirre motionless
on the hood and several more were standing a few steps away. This period of
apparent calm even before the Officers brought Aguirre to the pavement next
to the median calls into question the Officers’ testimony that Aguirre posed
an ongoing threat of serious bodily harm to the Officers or others. Cf. Goode
v. Baggett, 811 F. App’x at *232 (holding that a reasonable jury could find that
hog-tying was excessive because suspect did not pose an immediate safety
threat because “he was already handcuffed and subdued”).
7
The Plaintiffs did not file a cross-motion for summary judgment in this case, and
so we are not called upon to decide whether their video and expert witnesses’ statements
provide sufficient clarity to entitle them to partial summary judgment. Cf. Scott, 550 U.S. at 380
.
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Our review of the videos also does not indicate that Aguirre was
resisting, struggling, or at all uncooperative when the Officers walked him
over to the hood of the car. It is at best unclear from the video whether or
how much Aguirre was moving once he was bent over the car; the video very
nearly confirms that Aguirre was not resisting. As Dr. Mittler described, it
shows no “kicking by Mr. Aguirre” nor any other “aggressive or restrictive
acts . . . such as flailing of his arms or attempts to head butt or bite.” Similarly,
once the Officers pinned Aguirre prone on the ground, the video does not
show Aguirre struggling in any way that would make the Officers’ contorting
and holding Aguirre’s body into the hog-tie-mimicking, maximal-restraint
position necessary or reasonable under the circumstances. Far from
conclusively resolving factual disputes in favor of the moving party, the video
evidence here weighs heavily in the Nonmovant-Plaintiffs’ favor.
To summarize, the first Graham factor—the severity of any crime of
which Aguirre was suspected—weighs in favor of it being unreasonable and
excessive for the Officers to hold Aguirre in the dangerous maximal-restraint
position for five and a half minutes, and there are at very least genuine
disputes as to the second two Graham factors—whether Aguirre posed a
safety threat to Officers or others or was resisting the Officer’s efforts to
remove him from the highway and hold him safely until the police wagon
arrived.
These disputes as to material facts alone are enough to preclude a
finding at summary judgment that the force used by the Officers in holding
Aguirre in a hog-tie like position was constitutionally reasonable, for, under
Graham and its progeny, it is unreasonable for an officer to use injurious force
against a non-resisting, non-dangerous individual who is not suspected of a
serious crime, which we must assume occurred here under Aguirre’s version
of events. See, e.g., Darden, 880 F.3d at 731
(“[A] constitutional violation
occurs when an officer tases, strikes, or violently slams an arrestee who is not
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actively resisting arrest.”). This is especially so when the force is applied
after the suspect has been restrained and subdued, as may have been the case
here. See Curran v. Aleshire, 800 F.3d 656, 661
(5th Cir. 2015); Ramirez v. Martinez,716 F.3d 369, 378
(5th Cir. 2013); Bush v. Strain,513 F.3d 492, 501
(5th Cir. 2008). Indeed, several of our sister circuits have specifically applied these basic principles in cases involving maximal restraint techniques like the one the Officers employed against Aguirre.8 See McCue v. City of Bangor,838 F.3d 55, 64
(1st Cir. 2016) (holding “that exerting significant, continued force on a person’s back while that person is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.” (cleaned up) (quoting Weigel v. Broad,544 F.3d 1143, 1155
(10th Cir. 2008)); Abdullahi v. City of Madison,423 F.3d 763, 769
(7th Cir. 2005) (holding that, under the Graham factors, officer’s kneeling on the back of prone suspect who had not resisted and posed no serious threat would, if proven at trial, amount to excessive force);9 see also Simpson v. Hines,903 F.2d 400, 403
(5th
Cir. 1990) (holding that police officers used grossly disproportionate,
excessive force in violation of pre-trial inmate’s Fourteenth Amendment
rights when, in order to search the inmate and his cell, the officers cuffed his
hands and legs behind his back, laid him on his stomach, and put pressure on
his back, causing his asphyxiation and death). However, Plaintiffs also
contend the Officers’ use of force was excessive for a second reason: it
amounted to the unconstitutional use of deadly force.
8
The Supreme Court has recently relisted a certiorari petition raising this issue,
suggesting that the Court may soon clarify the contours of an excessive force claim based
on law enforcement’s allegedly improper use of the maximal restraint position. See Petition
for a Writ of Certiorari, Jody Lombardo v. City of St. Louis, No. 20-391 (U.S. Sept. 17, 2020).
9
We do not adopt or rely on these out-of-circuit holdings and cite them only as
confirmation of our conclusions regarding the application of Supreme Court and Fifth
Circuit precedent to the Plaintiffs’ version of events.
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2. Use of Deadly Force
Plaintiffs argue that the Officers’ placing and holding Aguirre in the
maximal-restraint position was an excessive and unreasonable application of
deadly force. Claims that law enforcement unreasonably utilized deadly force
are treated as a special subset of excessive force claims. Gutierrez, 139 F.3d at 446
. The Supreme Court held in Scott that there is no “magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force,’” and such claims are broadly analyzed under the same general rubric of “reasonableness” as other excessive force claims. Scott,550 U.S. at 382-83
. At bottom, the Court held, a Fourth Amendment challenge to deadly force still calls for a “balanc[ing of the] nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.”Id.
Nevertheless, we have long held that the use of “deadly force” is unreasonable where the officer does not have “probable cause to believe that the suspect pose[d] a threat of serious physical harm, either to the officer or to others,” Gutierrez,139 F.3d at 446
(quoting Garner,471 U.S. at 11
), and we know of no case that has departed from this basic principle. See Thompson v. Mercer,762 F.3d 433, 437
(5th Cir. 2014) (applying the threat of serious harm requirement to a post-Scott deadly force claim). And, although “[l]ower courts . . . have struggled with whether to characterize various police tools and instruments as ‘deadly force,’” this court defines deadly force as force that “creates a substantial risk of death or serious bodily injury.”10Id.
10
Our precedents do not clearly require looking to a law enforcement officer’s
subjective awareness of the risks involved when determining whether a technique
constitutes “deadly force,” see Gutierrez, 139 F.3d at 446
, and, as stated above, we generally evaluate excessive force claims objectively from the perspective of a reasonable officer in the situation. Darden,880 F.3d at 729
(quoting Graham,490 U.S. at 396
). It is noteworthy,
however, that the evidence indicates that the Officers were directly warned about the
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The testimony of the Plaintiffs’ medical expert, Dr. Brant Mittler,
evidences the substantial risk of death or serious bodily injury posed by the
Officers’ use of the prone maximal-restraint position under the
circumstances here. Dr. Mittler detailed in his report how restraining Aguirre
in that position—face-down on the pavement with his hands cuffed behind
him and his legs bent up and back onto his buttocks in a hogtie-like position—
and applying any force sufficient to maintain Aguirre in that maximal prone
position was substantially likely to, and ultimately did, cause his death:
1. The prone position and pressure applied to the neck and back
more likely than not restricted Mr. Aguirre’s ability to expand
his lungs and oxygenate his blood and importantly remove
carbon dioxide and maintain a normal PH of his blood.
2. The bending up of Mr. Aguirre’s legs in the position that
they were held while he was in the prone position reduced
venous return to the heart and reduced his cardiac output.
3. The pressure applied to Mr. Aguirre’s back more likely than
not compressed his vena cava and also contributed to reduced
dangers of putting drug-affected arrestees in the maximal-restraint position. As explained
above, the Department of Justice bulletin recommends that officers “avoid the use of
maximally prone restraint techniques (e.g., hogtying),” and warns that “cocaine-induced
bizarre or frenzied behavior” can “increase a subject’s susceptibility to sudden death”
from being restrained in such a position. It is reasonable to infer that the San Antonio Police
Department received this bulletin that was distributed to local law enforcement agencies
across the nation, and we must make this inference in Plaintiffs favor at this stage. Further,
the San Antonio Police Manual that the parties agree was in effect at the time of Aguirre’s
death specifically instructed its officers that, when restraining prisoners who “are violent
and/or appear to be under the influence of drugs,” the “[p]risoners will not have their
hands and legs secured together in any form or position commonly known as ‘hog-tying.’”
Finally, an officer with the San Antonio Police Department’s Mental Health Detail testified
that all San Antonio police officers are required to attend a 40-hour training on how to
recognize “excited delirium syndrome,” and that training expressly warns that “Officers
need to be mindful of positional asphyxia,” as the prone position “may make it more
difficult for the person to breath.”
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blood return to his heart and reduced cardiac output and
impaired ability to correct or keep normal his blood PH.
4. More likely than not, both the positions of the legs and the
compression of the back and neck contributed to a lowered
blood PH which contributed to Mr. Aguirre’s death via
inducement of a fatal cardiac arrhythmia.
5. The position he was restrained in induced extreme anxiety
and stimulated more catecholamine production which
contributed to Mr. Aguirre’s death while in the restrained
position.
6. The pressure to the back of the neck applied by a SAPD
officer [Officer Mendez] affected Mr. Aguirre’s ability to
breath in oxygen and expel carbon dioxide.
7. Mr. Aguirre’s movements of his head from side to side prior
to death were most likely attempts to breathe in oxygen and
expel carbon dioxide prior to his death while under restraint.
Dr. Mittler also noted that the “use of stimulants such as cocaine may
increase oxygen demand and muscle fatigue,” and therefore make this
method of restraint even more dangerous. Competent summary judgment
evidence indicates that the Officers had reason to know of the substantial risk
that Aguirre had recently used intravenous narcotics such as cocaine or a
similar drug and was in a state of excited delirium. In addition to Aguirre’s
plainly erratic behavior in walking in a disoriented state down the middle of a
highway, Officers Morgan and Arredondo both gave sworn statements that
they suspected at the time of the incident that Aguirre was on narcotics or
alcohol. Indeed, Officer Arredondo stated that she was not alarmed when
Aguirre’s lips turned blue because this was common for people under the
influence of drugs in her experience. The Texas Attorney General’s report
on Aguirre’s death stated that, when encountered by the Officers, Aguirre
“was completely ignoring commands and appeared to be under the influence
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of some type of controlled substance,” and “as [the Officers] were
handcuffing [Aguirre] they noted that he had fresh needle marks on his arms
indicating some type of drug use.”
Taken in the light most favorable to Plaintiffs, this summary judgment
evidence indicates that a reasonable officer in the Officers’ position would
have known that applying the maximal-restraint position to Aguirre and
holding him in this position for an extended period posed a substantial risk of
causing his death or serious bodily injury. Cf. Gutierrez, 139 F.3d. at 446
(holding that hog-tying an apparently drug-affected individual was deadly force); see also Cruz v. City of Laramie,239 F.3d 1183, 1188
(10th Cir. 2001) (holding, in an opinion by then-Fifth Circuit Chief Judge Politz, sitting by designation, that it is excessive force for an officer to hog-tie a person with apparent “diminished capacity,” including from “severe intoxication, the influence of controlled substances, [or] a discernible mental condition,” because the “restraint [is] likely to result in [a] significant risk to the individual’s health or well-being”). And we therefore conclude that a reasonable jury could find that the Officers’ use of force here constituted “deadly force.” See Flores v. City of Palacios,381 F.3d 391, 399
(5th Cir. 2004) (stating that whether a given technique is “deadly force” given the circumstances is a question for the factfinder); Gutierrez,139 F.3d at 446
(same).
As discussed above, see supra, § II.A.1, the record at the very least
reflects a genuine dispute of fact as to whether Aguirre was resisting or
otherwise posed a threat of serious physical injury to the Officers or others
so as to make the use of the prone maximal-restraint position necessary or
potentially reasonable. These same factual disputes, relevant to whether the
force was generally excessive to the situation, also preclude summary
judgment under our case law’s “deadly force” analysis. See Gutierrez, 139 F.3d at 446
. These facts are material because, if a jury concludes that the
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Officers had reason to believe Aguirre was on drugs and that he posed no
threat of serious bodily harm at the time the Officers used the maximal
restraint position against him, the Plaintiffs will have established that the
Officers violated Aguirre’s constitutional right to be free from the
unreasonable use of deadly force. See id.
In sum, facts material to whether the Officers violated Aguirre’s Fourth Amendment rights are genuinely disputed. The lack of visible resistance by Aguirre, the presence of numerous Officers surrounding him, and the fact that the Officers had already blocked off several lanes and caused traffic to slow significantly all weigh against the inference of any immediate safety threat or other need that would justify placing Aguirre in the prone maximal-restraint position. “[A] jury could conclude that no reasonable officer would have perceived [Aguirre] as posing an immediate threat to the officers’ [or his own or the public’s] safety,” Darden,880 F.3d at 729
, meaning that the Officers’ use of what may have amounted to deadly force was necessarily excessive of any need to mitigate a public safety threat. Likewise, “a jury could conclude that no reasonable officer on the scene would have thought that [Aguirre] was resisting arrest,”id. at 730
, meaning
that the use of force far exceeded the amount necessary to effect Aguirre’s
arrest or ensure his safety. Although the Officers presented their own version
of events that included claims of Aguirre’s resistance—including, for
example that he “was resisting and trying to pull away from” the Officers
while walking near the westbound side of the median, “was still resisting”
when placed on the hood of the car, and “continued to resist by shifting his
body around and trying to break free” while pinned against the hood of the
patrol car—these averments in contravention of what the police dashcam
videos show do no more than reinforce that genuine disputes as to material
facts exist at this stage of the litigation.
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B. Violation of Clearly Established Law
Officers’ conduct violates a clearly established right when there is
“controlling authority . . . that defines the contours of the right in question
with a high degree of particularity.” Linicomn v. Hill, 902 F.3d 529, 538
(5th Cir. 2018) (citations and internal quotations marks omitted). “‘[C]learly established law’ should not be defined ‘at a high level of generality.’” White v. Pauly,137 S. Ct. 548, 552
(2017) (quoting Ashcroft v. al-Kidd,563 U.S. 731
, 742 (2011)). But it is not necessary that a previous case presenting identical facts exist in order for a right to be clearly established. “‘The central concept is that of fair warning: The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.’” Trammell v. Fruge,868 F.3d 332, 339
(5th Cir. 2017) (quoting Ramirez,716 F.3d at 379
). As set out below, I conclude that this court’s precedents demonstrate that, if they indeed employed excessive and deadly force in the specific manner that Plaintiffs contend they did, the Officers had “‘fair warning’ that their conduct was unconstitutional.” Trammell,868 F.3d at 343
.
“[I]n an obvious case, the Graham excessive-force factors themselves
can clearly establish the answer, even without a body of relevant case law.”
Darden, 880 F.3d at 733
(citing Brosseau v. Haugen,543 U.S. 194, 199
(2004)). “The law is clear that the degree of force an officer can reasonably employ is reduced when an arrestee is not actively resisting.”Id.
It has long been clearly established that, when a suspect is not resisting, it is unreasonable for an officer to apply unnecessary, injurious force against a restrained individual, even if the person had previously not followed commands or initially resisted the seizure. See Aleshire,800 F.3d at 661
(holding that it was clearly
established on the basis of the Graham factors alone that it was excessive and
unreasonable for an officer to bang an arrestee’s head against a wall after she
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had ceased resisting). Indeed, at least five other circuits have held that, even
in the absence of a previous case with similar facts, “it [is] clearly established
. . . that exerting significant, continued force on a person’s back while that
person is in a face-down prone position after being subdued and/or
incapacitated constitutes excessive force.” McCue, 838 F.3d at 64
(cleaned up) (collecting cases, including Abdullahi,423 F.3d at 765
; Weigel,544 F.3d at 1155
; Drummond ex rel. Drummond v. City of Anaheim,343 F.3d 1052, 1057
(9th Cir. 2003); and Champion v. Outlook Nashville, Inc.,380 F.3d 893, 903
(6th Cir. 2004)).
As discussed, “a jury could conclude that no reasonable officer would
have perceived [Aguirre] as posing an immediate threat to the [O]fficers’
safety or thought that he was resisting arrest.” Darden, 880 F.3d at 733
. Thus, if the Officers unnecessarily placed Aguirre in the maximal-restraint position when there was no reason to believe he had committed a serious crime, that he posed a continuing threat to the Officers or public safety, or that he was resisting the Officers’ seizure or holding of him, the Officers violated Aguirre’s clearly established constitutional rights. Seeid.
(holding officer’s conduct would violate clearly established rights if he used violent force against plaintiff who did not resist and presented no safety threat); Aleshire,800 F.3d at 661
(same).
But I need not rely solely on the Graham factors to find a violation of
clearly established law. Plaintiffs’ claim that the Officers unconstitutionally
employed deadly force in the absence of any threat of death or serious injury
to the Officers or the public presents facts very similar to those found in
Gutierrez v. City of San Antonio, 139 F.3d 441
(5th Cir. 1998). Cf. Goode, 811
Fed App’x at *230, *236 (affirming the district court’s determination that
Gutierrez was “adequate authority at a sufficiently high level of specificity to
put the Officers on notice that hog-tying would violate clearly established law
in some situations” (internal quotes omitted)). In Gutierrez, two officers—
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also with the San Antonio Police Department—found Rene Gutierrez
disoriented in the middle of the street, cuffed his hands behind his back, and
put him in the backseat of the patrol car to transport him to the local hospital,
believing he was either “having psychiatric problems” or “a reaction to bad
drugs.” Id. at 443
. When he “began to kick the back of the driver’s seat, the metal cage, and the windows of the patrol car with his bare feet,” the officers determined Gutierrez needed to be further restrained “for his safety and ours,” and they accordingly tied his feet together and to his handcuffs behind his back in a “hog-tie” and placed him in the backseat.Id.
When they arrived at the hospital, Gutierrez was dead.Id.
The autopsy report stated: “It is known that ‘hog tying’ of an individual and placing them in the position that Rene Gutierrez was placed[ in] can produce a relative hypoxia and in some instances death,” and the report cited this restraint position as a “contributory cause” of his death.Id. at 444
.
On review, this court observed that Gutierrez’s family had introduced
“evidence into the summary judgment record . . . indicating that the
combination of hog-tying a drug-affected person in ‘cocaine psychosis’
(excited delirium) and ‘positional asphyxia’ (placing them in a face-down
prone position) can lead to death.” Id.
We therefore affirmed the district court’s denial of qualified immunity for the officers, holding that, when drawing all reasonable inferences in the light most favorable to the Plaintiffs, “hog-tying in these circumstances would have violated law clearly established prior [to the incident in 1994].”Id.
at 446–47. The court noted in Gutierrez that its holding applied to “a limited set of circumstances—i.e., when a drug-affected person in a state of excited delirium is hog-tied and placed face down in a prone position.”Id. at 451
.
As in Gutierrez, the Plaintiffs here introduced evidence that a
reasonable officer would have reason to know that Aguirre had used drugs,
including testimony from the Officers that they did actually suspect Aguirre
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was on narcotics or alcohol at the time, and a Texas Attorney General Report
stating that Aguirre appeared to be under the influence of some type of
controlled substance and that the Officers noticed that Aguirre had fresh
needle marks on his arms. The only difference between the hog-tie position
used in Gutierrez and the prone maximal-restraint position used here is that
Aguirre’s arms and legs were not mechanically bound to one another. See Hill
v. Carroll Cty., 587 F.3d 230
, 232 n.1 (noting “four-point restraint” or “hog- tying” is “binding the arms and legs together behind the back with an additional set of handcuffs”). But in addition to being proned-out next to the median, Aguirre’s hands were cuffed behind his back, and the Officers pushed and held Aguirre’s legs up near his buttocks in the same position they would have been in had his legs been physically bound to his hands. The effects of the restraints were the same and the slight variation in the technique is immaterial. As this court held in Gutierrez in 1998, it is clearly established that the use of hog-tie-like restraint may amount to deadly force “in a limited set of circumstances”–that is, when employed against an individual who a reasonable officer would have cause to know is “a drug- affected person in a state of excited delirium”—and there is a clearly established Fourth Amendment right to be free from the use of such deadly force when there is no probable cause to believe the force is necessary to ameliorate a threat of death or serious bodily injury. Gutierrez,139 F.3d at 451
.
I recognize that this court has distinguished Gutierrez in factual
scenarios different from the case at bar. In Hill v. Carroll County, for example,
this court stated that “Gutierrez does not hold four-point restraint a per se
unconstitutionally excessive use of force, nor does it extend beyond its facts
as a mirror of the then-unchallenged San Diego Study” on which the
Plaintiffs relied in Gutierrez. 587 F.3d at 235
. Instead, according to this court
in Hill, “neither the San Diego Study nor Gutierrez raises a triable fact issue
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in this case where there is no evidence of drug abuse or drug-induced psychosis.”
Id.
(emphasis added). But this goes not to the question of whether the law against the use of deadly force was clearly established, but rather to whether the use of a hog-tie under those circumstances constituted deadly force—an issue we have held is a question for the jury that is based on the evidence in the case. Gutierrez,139 F.3d at 446
. Hill therefore simply addressed the
plaintiffs’ failure to introduce evidence that a reasonable officer would have
known that placing the individual in a hog-tie like position posed a risk of
death or serious bodily injury, and it does not weigh against the conclusion
that, when the evidence shows that the use of a hog-tie-like position does
meet this test—and thus meets the constitutional standard for deadly force—
the right to be free from such force when it is not reasonable or necessary is
clearly established.
Here, of course, unlike in Hill, the Plaintiffs point to evidence that
Aguirre suffered from drug abuse and drug-induced psychosis and that a
reasonable officer would have known this, including from his erratic conduct
that actually lead the Officers to believe he was under the influence of drugs
and from his blue lips and the fresh needle marks that the Officers noticed on
his arms. See supra, note 10. And, as discussed in detail supra, § II.A.2, the
Plaintiffs introduced a wealth of evidence from which a reasonable juror
could conclude that the use of a hog-tie-like position in these circumstances
was deadly force, including the opinion of a medical expert and a Department
of Justice bulletin addressing the dangers of positional asphyxia when the
maximally prone restraint position is used on detainees who suffer from
“cocaine-induced excited delirium.” Hill is therefore inapposite.
Similarly, in Khan v. Normand, this court held that no clearly
established right had been violated through the use of a hog-tie where the
arrestee in that case “forcefully resisted his removal . . . . thrashing his legs;
attempting to bite; and, . . . reaching for an officer’s gun belt.” 683 F.3d at
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193. This court in Khan distinguished Gutierrez in three ways: (1) “the
brevity of Khan’s restraint and the constant supervision” was unlike
Gutierrez because Gutierrez was placed unattended in the back of a patrol
vehicle; (2) Gutierrez relied on a study—the San Diego Study—that “has
been called into question by more recent scholarship”; and (3) “Gutierrez
dealt with officers who knew the decedent had . . . ‘shot some bad coke,’”
whereas the record in Khan “contain[ed] no similar knowledge by the officers
in the field, despite the subsequent autopsy report that found
methamphetamine in his system.” Id. at 195–96.
Two of the distinctions Khan drew to Gutierrez are inapplicable here.
As discussed, the use of the San Diego Study bears only on the factual
question of whether the use of a hog-tie-like restraint amounted to deadly
force and not the legal question of whether it was clearly established that the
use of such force is unconstitutional when there is not probable cause to
believe it is necessary to prevent serious harm to officers or others. Again,
Plaintiffs did not rely on the San Diego Study here, but rather introduced a
medical expert’s opinion, a Department of Justice bulletin, passages from the
San Antonio Police Manual, and testimony by an officer with the San Antonio
Police Department’s Mental Health Detail. And, again, unlike in Khan or
Hill, the plaintiffs here introduced evidence that a reasonable officer in the
Officers’ position would—and the Officers in fact did—suspect that Aguirre
had used drugs, increasing the risk that using the maximal-restraint position
against him would result in his death or serious bodily injury. Combined, this
evidence is sufficient to at minimum raise a question for the jury as to
whether the force used in this case was deadly in the constitutional sense. We
must take this fact as true for summary judgment purposes, including for the
purpose of determining whether the Officers actions violated clearly
established law at the time of the incident. The Officers will have an
opportunity to rebut Plaintiffs significant evidence on these points at trial.
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See Gutierrez, 139 F.3d at 451
(noting that, at trial, “a very different picture
may result than the one painted by the summary judgment record because
Gutierrez must prove the issues that this opinion assumes in his favor”).
I acknowledge that the duration of the deadly force incident—here,
five and a half minutes—was shorter than the incident in Gutierrez, and that
Khan distinguished the facts there on that basis. See Khan, 683 F.3d at 195.
But in Khan, the arrestee stopped breathing “[a]lmost immediately” after he
was placed in a four-point restraint. Id. at 193. Not so here, as the Officers
kept Aguirre in the prone maximal-restraint position for five and a half
minutes. And Dr. Mittler opined that “Aguirre should not have been
restrained in the prone position for a prolonged period of time with pressure
on his back and neck and his legs bent up backwards and with no monitoring of
his respirations and consciousness.” Taking the evidence in the light most
favorable to the Plaintiffs at the summary judgment stage, then, the Officers
failed to properly monitor Aguirre as they held him in a hog-tie like position,
resulting in a situation like the one considered in Gutierrez and unlike that in
Khan.
My analysis reveals that the distinctions from Gutierrez drawn by this
court in Hill and Khan do not exist here, and their absence is dispositive of
the question of whether the law prohibiting the use of a hog-tie-like restraint
under these circumstances was clearly established at the time of the Officers’
actions. My reasoning is confirmed by our court’s recent unpublished
decision in Goode v. Baggett, in which we reaffirmed that Guiterrez “remains
binding precedent”: “We conclude that Gutierrez clearly established the
unlawfulness of hog-tying in certain circumstances.” 811 F. App’x 227
, 236
(5th Cir. 2020). Because in that case it was at least genuinely disputed
whether there was reason to believe the arrestee was drug-affected, whether
he posed a threat to anyone, and whether the officers had closely monitored
his status while he was in the hog-tie position, the court determined that
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summary judgment was inappropriate because there were disputes as to
whether the officers had violated clearly established law. Id. at 236-37
; see also Pratt v. Harris Cnty.,822 F.3d 174, 185
(5th Cir. 2016) (Costa, J., concurring)
(stating that law against using hog-tie under circumstances present in that
case was not clearly established specifically because the arrestee was
resisting, the officers closely monitored the arrestee, and the officers did not
have reason to believe the arrestee was in a drug-induced psychosis). As
stated, see supra note 4, Goode is not binding precedent, but it is persuasive,
and I agree with its reasoning and conclusions.
Though the facts here are not identical to Gutierrez, we need not find
the facts to be precisely the same as a previous case to hold that the Officers
would have had “fair warning” that their handling of Aguirre was dangerous,
unnecessary, and unconstitutional under the circumstances. Trammell, 868 F.3d at 343
. The central holding in Gutierrez remains intact: “hog-tying may present a substantial risk of death or serious bodily harm . . . in a limited set of circumstances—i.e., when a drug-affected person in a state of excited delirium is hog-tied and placed face down in a prone position.” Gutierrez,139 F.3d at 451
. And, as already established, a reasonable jury could conclude that
the maximal prone restraint position was tantamount to and as dangerous as
a hog-tie. I therefore conclude Aguirre’s right to be free from this position
under the facts we must accept here—where he was not resisting, posed no
immediate safety threat, and was presenting reasons to believe he was on
drugs and in a drug-induced psychosis—was clearly established at the time
of the incident.
Based on the foregoing, the Officers who participated in bringing
Aguirre to the ground and restraining him in the prone maximal-restraint
position—Officers Gonzales, Mendez, Morgan, and Arredondo—are not
entitled to summary judgment on the basis of qualified immunity because
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genuine disputes exist regarding whether they violated Aguirre’s clearly
established Fourth Amendment rights.
III. DELIBERATE INDIFFERENCE AND QUALIFIED
IMMUNITY
Notwithstanding the foregoing, we affirm the district court’s grant of
summary judgment on the Plaintiffs’ deliberate indifference claims. Unlike
our inquiry into whether officers used excessive force, which judges “[t]he
‘reasonableness of a particular use of force . . . from the perspective of a
reasonable officer on the scene,” Darden, 880 F.3d at 729
(emphasis added), and our qualified immunity analysis, which asks whether “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right,” Anderson, 483 U.S. at 640 (emphasis added), the Fourteenth Amendment’s deliberate indifference inquiry turns on law enforcement officials’ “subjective knowledge.” Hare v. City of Corinth, Miss.,74 F.3d 633, 650
(5th Cir. 1996) (en banc). Law enforcement officials violate an arrestee’s Fourteenth Amendment due process rights when they have “subjective knowledge of a substantial risk of serious harm to a pretrial detainee but respond[] with deliberate indifference to that risk.”Id.
Negligence or even gross negligence is not enough: the officials must have had actual knowledge of the substantial risk.Id.
(stating that “the Due Process Clause forbids the ‘punishment’ of pretrial detainees” and “[a]n official’s failure to alleviate a significant risk that he should have perceived but did not . . . cannot under our cases be condemned as the infliction of punishment” (quoting Farmer v. Brennan,511 U.S. 825, 838
(1994)). Nonetheless, a subjective intent to cause harm is not required. Garza v. City of Donna,922 F.3d 626, 634, 636
(5th Cir. 2019).
On appeal, Plaintiffs do not even claim, much less offer evidence to
demonstrate, that any of the Officers were actually aware that Aguirre was
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losing consciousness or otherwise in danger. The Officers have consistently
asserted, and the video evidence does not otherwise indicate, that none of
them knew Aguirre was in medical distress until he became unresponsive.
They stated that he continued to talk, yell, and move his head while on the
ground, so they believed he was able to breathe. The Officers testified that
they believed Aguirre’s groaning and discolored lips were due to heavy drug
use, not asphyxiation, and Plaintiffs do not offer evidence to dispute these
accounts. Even if these asserted beliefs were unreasonable and their actions
contrary to what they should have known from their training, that can only at
most establish gross negligence, not the required deliberate indifference.
Because Plaintiffs do not cite to, and we have not identified, any evidence
that the Defendant officers were aware that Aguirre was in danger until he
became unresponsive, we affirm the district court’s grant of summary
judgment on this claim.
Once the Officers realized Aguirre was unresponsive, however, there
was a delay of several minutes before effective CPR was administered.
Plaintiffs claim that Defendants were deliberately indifferent to Aguirre’s
serious medical needs by delaying CPR once they assessed that he was not
breathing. Plaintiffs’ medical expert points out that “[t]here appears to be a
delay of approximately 4 minutes and 30 seconds from the time the SAPD
officers turn . . . Aguirre on his back to when functional CPR started,” and
that there was a mere “half hearted attempt at a few chest compressions”
within three minutes of turning Aguirre over and seeing he was unresponsive,
but effective CPR was not started for four and a half minutes.
Delay of medical care can result in liability where there has been
deliberate indifference, in that the officers were subjectively aware of the risk
of serious harm but disregarded it. See Easter v. Powell, 467 F.3d 459, 463
(5th
Cir. 2006). And “knowledge of a substantial risk of harm may be inferred if
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the risk was obvious.” United States v. Gonzales, 436 F.3d 560, 573
(5th Cir. 2006); Easter,467 F.3d at 463
.
But Plaintiffs have not established that the Officers were deliberately
indifferent to the risk to Aguirre’s health after they discovered he was no
longer breathing. This is not a case where the Officers elected to do nothing
in response to a known health risk. Cf. Easter, 467 F.3d at 463–64 (allowing
deliberate indifference claim to go forward where “it [could] be inferred from
the circumstances that [the official] was subjectively aware of a substantial
risk of harm to [the inmate’s] health” yet did not assist). The videos
illustrate, and Plaintiffs do not contest, that once the Officers discovered
Aguirre was unresponsive, they flipped him over, unhandcuffed him, and
Officer Juarez, the medic on the scene, went to retrieve his medical
equipment. Juarez can be seen in the videos jogging to the trunk of his car to
get medical equipment, returning just over a minute later. Approximately one
minute after he returned, Officer Mendez performed a sternum rub, and
approximately another minute thereafter, the Officers began full CPR, with
continuous chest compressions until EMS arrived.
While these measures may have been inadequate, Plaintiffs do not
present any evidence that the Officers knew they were insufficient and
intentionally failed to do more out of indifference to Aguirre’s well-being.
Plaintiffs point to the Officers demeanor in the dashcam video, arguing that
their smiling and laughing suggests that they did not care about the obvious
risk to Aguirre’s health. However, the video depicts this behavior before
Juarez’s initial efforts to revive Aguirre were unsuccessful. The Officers
quickly took on a sober aspect as Aguirre remained unresponsive, which
suggests their initial manner was the result of subjective unawareness of the
risk rather than knowledge of the risk and a deliberate choice not to take any
precautions against the realization of the danger’s fatal consequences. To be
sure, we do not condone the Officers light-hearted attitudes, and it may well
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have been objectively unreasonable for them to have been ignorant of the
serious threat to Aguirre’s health. But gross negligence on the part of the
Officers is not sufficient to establish the kind of subjective, deliberate
indifference that must be demonstrated to establish a Due Process violation.
Hare, 74 F.3d at 650
. Accordingly, we affirm the district court’s finding of
qualified immunity on these claims.
IV. MUNICIPAL LIABILITY
“To state a claim against a municipality under 42 U.S.C. § 1983
, a plaintiff must allege that there was either an official policy or an unofficial custom, adopted by the municipality, that was the moving force behind the claimed constitutional violation.” Thompson v. Mercer,762 F.3d 433
, 441–42
(5th Cir. 2014) (citations and internal quotation marks omitted).
The only support the Plaintiffs provide on appeal for their municipal
liability claim is that the Chief of Police “signed off on a custodial death
report submitted to the Texas Attorney General, which included false
information and never took any steps to correct or remediate this filing after
the officers retracted their sworn after-incident statements.” The Plaintiffs
contend, without further explanation, that this act “can only be interpreted
as an endorsement and ratification of a policy and custom not to discipline
officers that violate the rights and well-being of the citizens they have sworn
to protect.”11 Even if this example was sufficient to establish the existence of
11
The Plaintiffs make passing reference to a “failure to train” claim against the
municipality. To the extent the Plaintiffs are asserting a separate claim based on San
Antonio’s alleged failure to train officers not to employ the prone maximal-restraint
position in these circumstances, they have not argued that the city had notice of a pattern
of constitutional violations and remained deliberately indifferent to the need to train
officers to avoid such techniques. The Plaintiffs have therefore failed to establish municipal
liability based on any failure of San Antonio to train its police officers. See City of Canton,
Ohio v. Harris, 489 U.S. 378, 388
(1989).
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such a policy or custom, the Plaintiffs make no attempt to demonstrate, as is
also required, that this alleged custom was “the moving force behind the
claimed constitutional violation.” Thompson, 762 F.3d at 441
. Accordingly,
we affirm the district court’s dismissal of the Plaintiffs’ municipal liability
claim.
V. TEXAS TORT CLAIMS ACT
The Plaintiffs also reassert state law claims against the City under the
Texas Tort Claims Act (TTCA). Section 101.021(2) of the TCCA “waives
governmental immunity for certain negligent conduct, but does not waive
immunity for claims arising out of intentional torts.” City of Watauga v.
Gordon, 434 S.W.3d 586, 594
(Tex. 2014); see TEX. CIV. PRAC. & REM. CODE
ANN. § 101.021(2), 101.057. As the district court correctly framed it,
“intentional conduct, no matter how it is pled, falls under the TTCA’s
sovereign immunity waiver exception.” See Tex. Dep’t of Pub. Safety, 44
S.W.3d at 580.
The Plaintiffs argue that their claim for “negligent use of handcuffs”
is not an intentional tort because they “are not contending that the officers
intended to kill Aguirre but rather than their lawful albeit negligent actions . .
. nonetheless set into motion foreseeable physiological stresses that caused
Aguirre’s death.” However, this argument is contrary to foundational tort
law principles, which maintain that the intentional tort of battery lies where
the offensive contact is intentional, not the resulting injury. See generally
Vosburg v. Putney, 50 N.W. 403
(Wis. 1891). Plaintiffs do not and cannot
dispute that putting Aguirre in handcuffs, bringing him to the ground, and
applying pressure to his legs and back was intentional conduct by the Officers
that they allege caused his death: a quintessential intentional tort claim.
Consistent with these principles, Texas courts have repeatedly rejected the
argument that intentional conduct by police that also forms the basis of
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excessive force claims, including the use or non-use of handcuffs, can give
rise to cognizable claims under the TCCA. See, e.g., City of Garland v. Rivera,
146 S.W.3d 334, 338
(Tex. App. 2004) City of Laredo v. Nuno,94 S.W.3d 786, 789
(Tex. App. 2002). Accordingly, the alleged intentional acts of the
Officers falls under the TTCA’s sovereign immunity waiver exception, and
we affirm the district court’s denial of Plaintiffs’ TTCA claims.
VI. DISMISSAL OF AGUIRRE’S ESTATE AS A PLAINTIFF
Plaintiffs also argue that the district court erred by dismissing the
Estate of Aguirre as a named plaintiff, leaving Blanca Aguirre as Plaintiff
“individually and as next friend” of her and Aguirre’s minor son. Since the
district court’s dismissal of the case in May 2017, a Texas probate court has
appointed Blanca the Dependent Administrator and issued Letters of
Administration, effective February 2018. Plaintiffs move in this court to
supplement the record with the probate court’s order and Letters of
Administration and request that we take judicial notice of them. We hereby
GRANT the motion to supplement the record and DENY the motion to
take judicial notice as moot.
However, Blanca Aguirre’s subsequent appointment as the Estate’s
Administrator does not retroactively render the district court’s dismissal of
the Estate as a party incorrect. Under Texas law, a deceased’s estate is not a
legal entity and may not properly sue or be sued as such. See Price v. Estate of
Anderson, 522 S.W.2d 690, 691
(Tex. 1975)); see also Robertson v. Wegmann,436 U.S. 584
(1978) (survival actions under [42 U.S.C.] § 1983 are governed by 42 U.S. § 1988, which directs the court to look to the law of the forum state). An estate only has the capacity to sue through either its legally appointed legal representative or an heir who can demonstrate that there is “no administration pending and none [is] necessary.” Austin Nursing Ctr., Inc. v. Lovato,171 S.W.3d 845
, 848–49 (Tex. 2005). The district court did not
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err in determining that, on the record before it, Blanca Aguirre was neither
the administrator nor an heir who could demonstrate that no administration
was pending, and that the Estate was thus without capacity to bring suit.
There is no indication that the district court dismissed the Estate with
prejudice. On remand, therefore, Plaintiffs could seek to add the Estate as a
party once more, this time with Blanca Aguirre as the now properly appointed
administrator. See Austin, 171 S.W.3d at 846
(“later-acquired status as the estate’s personal representative . . . related back to the time of the lawsuit’s original filing”) (citing Shepherd v. Ledford,962 S.W.2d 28
, 31–32).
***
For these reasons, we VACATE the district court’s entry of
summary judgment on the Plaintiffs’ excessive force claims against
Defendant Officers Gonzales, Mendez, Morgan, and Arredondo, affirm the
district court’s summary judgment in favor of Officer Juarez and the City of
San Antonio and as to the Plaintiffs’ deliberate indifference claims, and
REMAND for further proceedings consistent with this opinion.
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E. Grady Jolly, Circuit Judge, concurring in the judgment:
The question here is excessive force, vel non. The force applied to
subdue Aguirre cannot be properly evaluated without an appreciation of the
context: a busy highway, cars at high speeds, and a suspect wandering in and
out of lanes of traffic. During the event, a wreck occurred nearby. And once
Aguirre was apprehended and placed on the hood of a police car, he
attempted to break away from the officers in the midst of the traffic. In short,
the context could hardly have been more tense, fast-moving, and dangerous.
Because I view these facts differently from Judge Dennis, I believe that
the restraint the officers employed was initially a justified use of force. This
force may have even been justified for a brief period after Aguirre was thrown
to the ground: to me, the video indicates that Aguirre may have continued
resisting for a bit. But there is a good deal that is going on that has not been
captured by the camera and cannot clearly be discerned.
After about three minutes, however, Aguirre was surrounded by nine
officers, only three of whom were restraining him—and by that point, he does
not appear to be resisting much, if at all. Multiple officers are seen mulling
around. So it would appear that, with the additional surveilling officers, the
need for the extreme restraint may have lessened. Despite this change, the
officers continued to apply the maximal restraint position for another two
minutes.
For those two minutes, there is a material factual dispute as to whether
the restraint continued to be necessary to keep Aguirre from fleeing, given
the number of officers available to prevent Aguirre from bolting into traffic.
This disputed issue of fact requires a full airing of all the evidence before a
fact-finder. Were a jury to find that the restraint used became, at some point,
unnecessary to keep Aguirre from escaping into traffic, continuing this
restraint against this particular person with some known health risks would
constitute excessive force as a matter of law because an objective, reasonable
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officer would know that such force would not constitute a measured,
appropriate degree of force. See Joseph ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319
, 333–34 (5th Cir. 2020). Excessive force is unreasonable;
unreasonable force, unconstitutional.
Furthermore, if a jury concludes that the restraint was unnecessary, it
would have been “obvious” to a reasonable officer that the use of such a
severe tactic against this particular person would be constitutionally
proscribed, and he would have no recourse to qualified immunity. See Taylor
v. Riojas, 141 S. Ct. 52
, 52–54 (2020).
I therefore concur with the result reached.
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Stephen A. Higginson, Circuit Judge, concurring in the judgment:
I write separately only as to our reversal of the district court’s grant of
summary judgement on qualified immunity grounds with respect to the
plaintiffs’ excessive force claims. I concur on the narrow ground that our
court’s clearly established law, though lacking clarity in some respects, had
converged by spring of 2013 to stand at least for the proposition that police
officers use constitutionally excessive force when they put a handcuffed
arrestee, no longer resisting or posing a safety threat to himself or others, and
whom the officers observed in an excited state of delirium and suspected to
have ingested drugs, on the ground, face down in an asphyxial position, i.e.,
pulling back his leg and arms into prone restraint, and simultaneously apply
vertical pressure to such a prone, immobile arrestee for sufficient time to see
his lips turn blue and his breathing stop.
Put otherwise, our caselaw had converged by spring 2013 around the
clearly established proposition that while such an initial restraint is not per se
unconstitutional, the continued application of asphyxiating force may be
unreasonable where there is no ongoing threat posed by the suspect. See Pratt
v. Harris County, 822 F.3d 174, 184
(5th Cir. 2016) (reviewing caselaw to conclude use of prone restraint was not excessive due to evasion and violence, and where additional force applied to back was brief); Khan v. Normand,683 F.3d 192
, 195–96 (5th Cir. 2012) (reviewing same body of law
to conclude brief use of prone restraints, without additional force, was
reasonable).
Of course, this evidence of police suffocation of a restrained, prone
suspect is in the light most favorable to plaintiffs. One or more circumstance
may prove untrue whereupon qualified immunity may attach. See Darden v
City of Fort Worth, 880 F.3d 722, 732
(5th Cir. 2018).
42