Gutierrez v. Walters ( 1998 )


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  •                         REVISED, May 8, 1998
    
                       UNITED STATES COURT OF APPEALS
                                FIFTH CIRCUIT
    
                                ____________
    
                                No. 97-50082
                                ____________
    
    
              RENE GUTIERREZ, Individually and on behalf of
              the estate of Rene Gutierrez, Jr; LIBRAVA
              GUTIERREZ, Individually and on behalf of the
              Estate   of  Rene   Gutierrez,  Jr;   ROSANNA
              GUTIERREZ, as next friend of Monica Gutierrez
              and Monique Gutierrez,
    
    
                                   Plaintiffs-Appellees,
    
              versus
    
    
              CITY OF SAN ANTONIO; ET AL,
    
    
                                   Defendants,
    
              LAWRENCE WALTERS, San Antonio Police Officer
              individually and in his official capacity;
              ROBERT SOLIS, San Antonio Police Officer
              individually and in his official capacity
    
                                   Defendants-Appellants.
    
    
    
              Appeal from the United States District Court
                    For the Western District of Texas
    
                               April 14, 1998
    
    Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges.
    
    EMILIO M. GARZA, Circuit Judge:
    
         The family of Rene Gutierrez, Jr. (“Gutierrez”) brought suit
    
    against the defendant police officers, Lawrence Walters, Jr. and
    
    Robert Solis (the “officers”), for allegedly depriving him of his
    rights under the Fourth and Fourteenth Amendments of the U.S.
    
    Constitution by hog-tying him.         The district court issued an order
    
    granting in part and denying in part the officers’ summary judgment
    
    and FED. R. CIV. P.12 (b)(6) motions.         The officers now bring an
    
    interlocutory appeal seeking dismissal or summary judgment based on
    
    qualified immunity.      Because we conclude that material disputes of
    
    fact prevent us from determining the objective reasonableness of
    
    the officers’ conduct, we dismiss their appeal of the Fourth
    
    Amendment claim for lack of jurisdiction and vacate and render a
    
    take nothing verdict on the Fourteenth Amendment claim.
    
                                            I
    
         Shortly before midnight on November 27, 1994, Walters and
    
    Solis   drove   toward   a   heavily    trafficked   intersection   in   San
    
    Antonio, Texas, in a part of town known for high drug use.          Passing
    
    through the intersection, they saw Gutierrez stand up from the side
    
    of the street and begin stumbling around in the intersection,
    
    wearing a pair of trousers but no shoes, shirt, or other clothing.
    
         Walters initially thought that Gutierrez was intoxicated.            He
    
    turned the patrol car around approximately one block west of
    
    Gutierrez and began to drive back towards Gutierrez.         The officers
    
    observed him running around in circles in the middle of the street
    
    and slipping and falling on his side.          As they parked the patrol
    
    car and approached Gutierrez, he began swinging his arms wildly and
    
    crawling toward them on his hands and knees. Gutierrez shouted out
    
    that he had been shot; the officers checked, but found no bullet
    
    wounds on Gutierrez or nearby persons with guns.         The officers did
    
    
                                           -2-
    notice numerous abrasions on his chest and bleeding from his mouth.
    
         Walters cuffed Gutierrez “for his safety and mine.”              He did
    
    not arrest Gutierrez, but police reports indicate that Walters
    
    intended to do so later.      Walters also noted that Gutierrez’s eyes
    
    were glassy, he was walking unsteadily, and his speech was slurred.
    
    When Walters asked Gutierrez if he had taken any drugs, Gutierrez
    
    said that he had “shot some bad coke.” Solis later testified that
    
    Gutierrez was “exhibiting that he was high on some type of drugs.”
    
         Solis called an ambulance (“EMS”), allegedly for a possible
    
    toxic ingestion overdose.         While waiting for the EMS to arrive,
    
    Gutierrez sat calmly with his back against a rear door of the
    
    patrol car.       As traffic in the intersection increased, Walters
    
    placed Gutierrez face down in a prone position in the back seat and
    
    drove the patrol car into a neighboring parking lot. Gutierrez was
    
    quiet and peaceful, and his feet were not restrained in any way.
    
         When the EMS arrived, Walters told EMS Technicians Ernest
    
    Lavin   and   Michelle    Cevallos   that   Gutierrez   had   admitted    to
    
    injecting bad cocaine.       Lavin and Walters removed Gutierrez from
    
    the back seat of the patrol car and walked him toward the EMS
    
    vehicle.   When Gutierrez got to the rear of the EMS unit, he turned
    
    around and sat down.      Gutierrez suddenly began to push and tried to
    
    get into the EMS vehicle, yelling “put me in.”           As abruptly, he
    
    kicked Lavin in the chest, and shouted “get me out.”            Due to this
    
    violence, Lavin refused to transport Gutierrez to the hospital.
    
    Walters    then   asked   Lavin   whether   Gutierrez   could    be   safely
    
    transported in a patrol car, to which Lavin replied that Gutierrez
    
    
                                         -3-
    appeared to be having psychiatric problems rather than a reaction
    
    to bad drugs.
    
           Walters and Lavin returned Gutierrez to the back seat of the
    
    patrol car to transport him to a local hospital for examination,
    
    allegedly placing him face down in the back seat.        Gutierrez began
    
    to kick the back of the driver’s seat, the metal cage, and the
    
    windows of the patrol car with his bare feet.          Walters and Solis
    
    agreed that Gutierrez’s legs would have to be restrained, “for his
    
    safety and ours.” Solis got his personal leg-restraint device from
    
    the patrol car, a nylon rope with a loop on one end and a clasp on
    
    the other (a “hog-tie”). Walters placed the loop around Gutierrez’s
    
    feet, and Solis linked the clasp around the handcuffs, drawing
    
    Gutierrez’s legs backward at a 90-degree angle in an “L” shape,
    
    thereby   “hog-tying”    him.    Whether    the   officers   then     placed
    
    Gutierrez in a face down position on the rear seat or with his face
    
    pointed toward the rear of the front seat is disputed, but as the
    
    officers set off for the hospital, he was conscious and struggling.
    
           Walters and Solis drove to the hospital at a normal rate of
    
    speed with their lights and sirens off and the rear of the patrol
    
    car darkened.    While Walters drove, Solis occasionally checked to
    
    see if Gutierrez’s restraints were secure, but he did not check to
    
    see if Gutierrez was still breathing or otherwise monitor him.
    
    Approximately ten minutes into the journey, all sounds of Gutierrez
    
    struggling stopped.     Upon arriving at the hospital, Walters went
    
    into   the   hospital   to   summon    medical   personnel   while    Solis,
    
    believing Gutierrez to be asleep, began to nudge him.                At that
    
    
                                          -4-
    time,   Gutierrez      was   face   down   on    the    seat,   a   position    that
    
    allegedly restricted the amount of oxygen that could reach his
    
    heart   and    his    heart’s   ability    to    pump    oxygen-enriched       blood
    
    throughout his body.         Medical personnel came out to the car, the
    
    restraints were removed, and the medical personnel discovered that
    
    Gutierrez did not have a pulse.                 They then took him into the
    
    emergency room where doctors pronounced him dead.
    
         At the autopsy, Dr. Vincent DiMaio, Chief Medical Examiner of
    
    Bexar County, initially determined that Gutierrez had died as a
    
    result of the combined effects of methadone, cocaine, imipramine
    
    and morphine.        Dr. DiMaio later issued an addendum to the Autopsy
    
    Report that stated:
    
              Subsequent to completion of the autopsy report on
         Rene Gutierrez, this office discovered that when the
         deceased was transported in the San Antonio Police
         Department unit, that he was placed on the back seat,
         face down, his hands secured behind his back with
         handcuffs and his feet tied with a rope which was then
         tied to his hands or the handcuffs. In other words, the
         deceased was “hog tied.”
              It is known that “hog tying” of an individual and
         placing them in the position that Rene Gutierrez was
         placed, can produce a relative hypoxia and in some
         instances death. Based on the new information supplied,
         it is our opinion that the “hog tying” was a contributory
         cause to Rene Gutierrez’s death.
    
         Gutierrez’s family filed a claim alleging violations of 42
    
    U.S.C. §§     1981, 1983, 1985 and 1986 based the Fourth, Eighth, and
    
    Fourteenth Amendments of the U.S. Constitution and pendant state
    
    tort law claims.         Solis filed a motion to dismiss or, in the
    
    alternative, for summary judgment, based on a qualified immunity
    
    defense.      Walters also filed a summary judgment motion arguing the
    
    same defense.
    
                                           -5-
         In response to these motions, Gutierrez introduced three
    
    pieces of evidence into the summary judgment record suggesting hog-
    
    tying to be unreasonable under these circumstances: (1) a 1991 San
    
    Diego Task Force Study in the possession of the San Antonio Police
    
    Department    (“SAPD”)     in   November   1994   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 (“Sudden
    
    Custody Death Syndrome” or “SCDS”); (2) an article entitled “Sudden
    
    Custody Death Syndrome: The Role of Hogtying,” that appeared in the
    
    fall 1994 issue of Criminal Law Update; and (3) a memo issued by
    
    SAPD Captain Benavides ten days after the death of Gutierrez
    
    “reminding” officers that hog-tying anyone was prohibited.
    
         The district court dismissed Gutierrez’s Eighth Amendment
    
    claim but denied summary judgment on the Fourth and Fourteenth
    
    Amendment claims.        Walters and Solis timely appealed from the
    
    denial of their motions.
    
                                         II
    
         We review the denial of a summary judgment motion de novo,
    
    viewing the evidence in the light most favorable to the nonmovant.1
    
    See Nerren v. Livingston Police Dep’t, 
    86 F.3d 469
    , 470 & n.1 (5th
    
    
         1
              Solis filed a motion urging that the district court
    either dismiss Gutierrez’s complaint under FED. R. CIV. P. 12(b)(6)
    or grant him summary judgment under FED. R. CIV. P. 56.       Solis
    attached materials outside the pleadings to this motion, thereby
    converting it into a Rule 12(c) motion. We review the denial of a
    Rule 12(c) motion under the same standard of review as a summary
    judgment motion. See Baker v. Putnal, 
    75 F.3d 190
    , 197 (5th Cir.
    1996).
    
                                        -6-
    Cir. 1996).     Summary judgment is appropriate where “there is no
    
    genuine issue of material fact and [] the moving party is entitled
    
    to judgment as a matter of law.”        FED. R. CIV. P. 56(c). To win
    
    summary judgment, the movant must show that the evidence in the
    
    record would not permit the nonmovant to carry its burden of proof
    
    at trial.    See Celotex v. Catrett, 
    477 U.S. 317
    , 327, 
    106 S. Ct. 2548
    , 2554, 
    91 L. Ed. 2d 265
     (1986).        Once the movant meets this
    
    burden, the burden of coming forward with evidence in the summary
    
    judgment record creating an issue of material fact shifts to the
    
    nonmovant. See Hale v. Townley, 
    45 F.3d 914
    , 917 (5th Cir. 1995).
    
    The nonmovant must set forth specific facts showing a genuine issue
    
    for trial.    See Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 250,
    
    
    106 S. Ct. 2505
    , 2510, 
    91 L. Ed. 2d 202
     (1986).       A dispute over a
    
    material fact is genuine “if the evidence is such that a reasonable
    
    jury could return a verdict for the nonmoving party.” Id. at 248,
    
    106 S. Ct. at 2510.    “Material facts” are those “that might affect
    
    the outcome of the suit under the governing law.”      Id.
    
                                      III
    
         Although Gutierrez concedes that we have jurisdiction to hear
    
    this interlocutory appeal, we have an independent duty to examine
    
    the basis for our jurisdiction. See Behrens v. Pelletier, 
    516 U.S.
    )), 
    116 S. Ct. 834
    , 842, 
    133 L. Ed. 2d 773
     (1996) (holding that where
    
    there are issues of law separable from the merits of a claim, a
    
    court of appeals has jurisdiction to review those issues of law on
    
    interlocutory appeal, even when the district court denied summary
    
    judgment on the basis that material disputes of fact remain);
    
    
                                      -7-
    Johnson v. Jones, 
    515 U.S. 304
    , 313, 
    115 S. Ct. 2151
    , 2156, 
    132 L. Ed. 2d 238
     (1995) (holding that when the only issue presented on
    
    interlocutory appeal is whether the evidence could support a
    
    finding that an official’s conduct violated clearly established
    
    law, a court of appeals lacks jurisdiction to review the denial of
    
    summary judgment). In the instant case, the district court’s order
    
    did not state why it denied the officers’ Rule 12(b)(6) and summary
    
    judgment motions.       After “undertak[ing] a cumbersome review of the
    
    record to determine what facts the district court, in the light
    
    most favorable to the nonmoving party, likely assumed,” Johnson,
    
    515 U.S. at 319, 115 S. Ct. at 2159, we find there to be several
    
    disputes of material fact. However, as even Gutierrez concedes, we
    
    have jurisdiction to consider the officers’ contention that issues
    
    of law separable from the merits exist))namely, whether hog-tying
    
    violates clearly established law and whether their conduct was
    
    objectively reasonable.        See Behrens, 
    516 U.S.
    at )), 116 S. Ct. at
    
    842; Cantu v. Rocha, 
    77 F.3d 795
    , 802 (5th Cir. 1996).
    
                                            IV
    
         Qualified      immunity    protects       officials    in   the   course    of
    
    performance of their discretionary duties unless their conduct
    
    violates       a   “clearly     established         [federal]    statutory       or
    
    constitutional right[] of which a reasonable person would have
    
    known.”      Harlow v. Fitzgerald, 
    457 U.S. 800
    , 818, 
    102 S. Ct. 2727
    ,
    
    2738,   
    73 L. Ed. 2d 396
       (1992).         We   first   determine   whether    a
    
    plaintiff has alleged the violation of a clearly established
    
    constitutional right.         See Siegert v. Gilley, 
    500 U.S. 226
    , 231,
    
    
                                            -8-
    
    111 S. Ct. 1789
    , 1792-93, 
    114 L. Ed. 2d 277
     (1991).                If we find a
    
    right to be clearly established, we examine the objective legal
    
    reasonableness of the official’s conduct under the circumstances,
    
    “in light of clearly established law and the information the []
    
    officers possessed.” Anderson v. Creighton, 
    483 U.S. 635
    , 640, 
    107 S. Ct. 3034
    , 3039, 
    97 L. Ed. 2d 523
     (1987).             Qualified immunity thus
    
    protects an official whose conduct was objectively reasonable, even
    
    if   the   conduct   infringed   upon       a   constitutional   right    of   the
    
    plaintiff.     See id. at 641, 107 S. Ct. at 3040.
    
                                            A
    
                                            1
    
          Walters and Solis initially argue that the right to be free of
    
    hog-tying was not clearly established in November 1994 because
    
    neither the Supreme Court nor the Fifth Circuit (or any other
    
    circuit) had specifically held that hog-tying constituted excessive
    
    force.     Such a dogmatic argument is unjustified.          In Anderson, the
    
    Supreme Court stated that whether a clearly established right has
    
    been violated “substantially depends upon the level of generality
    
    at which the relevant ‘legal rule’ is to be identified.”                 483 U.S.
    
    at 639, 107 S. Ct. at 3038-39.          The Court thus required that “the
    
    contours of the right” be defined narrowly enough so that a given
    
    official, with the information that he possesses at the time he
    
    takes the action, could understand that what he is doing violates
    
    the right.    Id. at 640, 107 S. Ct. at 3039.          However, the Court did
    
    not require that the specific action in question have been held
    
    unlawful to overcome the official’s qualified immunity. Id.                     It
    
    
                                        -9-
    held only that the unlawfulness of the specific action be apparent
    
    “in the light of pre-existing law.” Id.
    
         Gutierrez’s family alleges that the officers used excessive
    
    force against Gutierrez by hog-tying him, in violation of the
    
    Fourth Amendment.         The protections of the Fourth Amendment are
    
    triggered when a police officer seizes an individual. See Tennessee
    
    v. Garner, 
    471 U.S. 1
    , 7, 
    105 S. Ct. 1694
    , 1699, 
    85 L. Ed. 2d 1
    
    (1985) (“Whenever an officer restrains the freedom of a person to
    
    walk away, he has seized that person.”); see also California v.
    
    Hodari D., 
    499 U.S. 621
    , 624-25, 
    111 S. Ct. 1547
    , 1550, 
    113 L. Ed. 2d 690
     (1991); Brower v. County of Inyo, 
    489 U.S. 593
    , 596-97, 109 S.
    
    Ct. 1378, 1381, 
    103 L. Ed. 2d 628
     (1989).               Whether a seizure is
    
    reasonable under the Fourth Amendment depends not only upon whether
    
    the seizure itself is reasonable, but also upon how the police
    
    seize the individual or item.        See Garner, 471 U.S. at 7-8, 105 S.
    
    Ct. at 1699; Harper v. Harris County, Tex., 
    21 F.3d 597
    , 600 (5th
    
    Cir. 1994).    “All claims that law enforcement officers have used
    
    excessive    force))deadly     or   not))in   the   course    of   an   arrest,
    
    investigatory stop, or other ‘seizure’ of a free citizen should be
    
    analyzed    under   the    Fourth   Amendment   and   its    ‘reasonableness’
    
    standard[.]” Graham v. Connor, 
    490 U.S. 386
    , 395, 
    109 S. Ct. 1865
    ,
    
    1871, 
    104 L. Ed. 2d 443
     (1989).         The Fourth Amendment’s prohibition
    
    of the use of excessive force by the police against seized persons
    
    had thus been clearly established prior to November 1994.
    
         Because Anderson requires that “the contours of the right []
    
    be sufficiently clear that a reasonable official would understand
    
    
                                         -10-
    that what he is doing violates the right,”               483 U.S. at 640, 107 S.
    
    Ct. at 3039, we will examine whether a reasonable police officer in
    
    November 1994 would have known whether hog-tying falls within the
    
    bounds    of    the    Fourth    Amendment’s      prohibition    of    the   use   of
    
    excessive force “in the light of pre-existing law.”                    Id. at 640,
    
    107 S. Ct. at 3039.         As a subset of excessive force claims, in
    
    Garner, the Supreme Court held that police use of “deadly force”
    
    violates the Fourth Amendment unless “the officer has probable
    
    cause to believe that the suspect poses a threat of serious
    
    physical harm, either to the officer or to others[.]”                  471 U.S. at
    
    11, 105 S. Ct. at 1701.           Although guns represent the paradigmatic
    
    example of “deadly force,” Garner failed to address whether other
    
    police tools and instruments can also be characterized as “deadly
    
    force.”        Lower   courts     since    have   struggled     with   whether     to
    
    characterize      various       police   tools    and   instruments    as    “deadly
    
    force.”    See, e.g., Estate of Phillips v. City of Milwaukee, 
    123 F.3d 586
    , 593-94 (7th Cir. 1997) (restraint in a prone position);
    
    Quintanilla v. City of Downey, 
    84 F.3d 353
    , 357 (9th Cir. 1997)
    
    (police dog); In re City of Philadelphia Litigation, 
    49 F.3d 945
    ,
    
    966 (3rd Cir. 1995) (bomb); Donovan v. City of Milwaukee, 
    17 F.3d 944
    , 949-950 (7th Cir. 1994) (deadman roadblock); Robinette v.
    
    Barnes, 
    854 F.2d 909
    , 911-12 (6th Cir. 1988) (police dog).                     These
    
    courts have generally described “deadly force” as force “carry[ing]
    
    with it a substantial risk of causing death or serious bodily
    
    harm.” Robinette, 854 F.2d at 912.                  Although we have not had
    
    occasion to adopt this description, both the Texas statute and SAPD
    
    
                                              -11-
    procedures in effect in November 1994 employed it.       See TEX. PENAL
    
    STAT. ANN. § 1.07(17); SAPD Procedure 501.03(C) (“‘Deadly Force’
    
    means force that is intended or known by the actor to cause, or in
    
    the manner of its use or intended use, is capable of causing death
    
    or serious bodily injury.”). The Texas statute and SAPD procedures
    
    in effect in November 1994 also conformed to Garner’s holding that
    
    an officer can use “deadly force” only against a suspect who poses
    
    a threat of death or serious physical harm to the officer or to
    
    others. See TEX. CODE CRIM. P. ANN. art. 6.06; SAPD Procedure 501.05
    
    (“An officer uses deadly force only in situations which indicate
    
    that he or another person may be seriously injured or killed if
    
    such deadly force is not used.”).       Accordingly, we find both the
    
    definition of “deadly force” and Garner’s holding to have been
    
    clearly established prior to November 1994.
    
                                      2
    
         The   question   thus   becomes    whether   hog-tying   in   these
    
    circumstances creates a substantial risk of death or serious bodily
    
    injury, and hence, becomes deadly force.      Gutierrez relies on the
    
    San Diego Study suggesting that a number of persons in police
    
    custody have died due to SCDS. See San Diego Police Department,
    
    Final Report of the Custody Death Task Force (unpublished, June
    
    1992) (“San Diego Study”).    This Study finds SCDS to be caused by
    
    the combination of (1) drug use, (2) positional asphyxia, (3)
    
    cocaine psychosis, and (4) hog-tying or carotid choke holds. Id. at
    
    6-12.   Gutierrez thus presents sufficient evidence that hog-tying
    
    may create a substantial risk of death or serious bodily injury in
    
    
                                     -12-
    these circumstances and thereby become deadly force. See Chew v.
    
    Gates, 
    27 F.3d 1432
     (9th Cir. 1994) (suggesting that whether a
    
    given tool or instrument in certain circumstances is “deadly force”
    
    is a question of fact). Assuming this evidence to be true, hog-
    
    tying in these circumstances would have violated law clearly
    
    established prior to November 1994.
    
                                               B
    
         To determine the objective reasonableness of Walters and
    
    Solis’ conduct, we examine whether “a reasonable officer could have
    
    believed    [their   conduct]      to     be    lawful,    in   light    of   clearly
    
    established law and the information the [] officers possessed.”
    
    Anderson, 483 U.S. at 641, 107 S. Ct. at 3040.                   We balance “‘the
    
    nature and quality of the intrusion on the individual’s Fourth
    
    Amendment    interests’        against     the    countervailing        governmental
    
    interests at stake.”       Graham, 490 U.S. at 396, 109 S. Ct. at 1871
    
    (quoting Garner, 471 U.S. at 8, 105 S. Ct. at 1699).                           We pay
    
    “careful    attention     to     the     facts    and     circumstances       of   each
    
    particular case, including the severity of the crime at issue,
    
    whether the suspect pose[d] an immediate threat to the safety of
    
    the officers or others, and whether he [was] actively resisting
    
    arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.
    
    Ct. at 1872.    We do not utilize “the 20/20 vision of hindsight,”
    
    id., and we consider “the fact that police officers are often
    
    forced to make split second judgments))in circumstances that are
    
    tense, uncertain, and rapidly evolving))about the amount of force
    
    that is necessary in a particular situation.”                   Id. at 396-97, 109
    
    
                                             -13-
    S. Ct. at 1872.         Thus, “[e]ven law enforcement officials who
    
    ‘reasonably but mistakenly’ [use excessive force] are entitled to
    
    immunity.”      Hunter v. Bryant, 
    502 U.S. 224
    , 227, 
    112 S. Ct. 534
    ,
    
    536, 
    116 L. Ed. 2d 589
     (1991) (quoting Anderson, 483 U.S. at 641, 107
    
    S. Ct. at 3040).
    
         In arguing that their conduct was objectively reasonable,
    
    Walters and Solis first present the affidavit of Commander Albert
    
    Rodriguez, who states that the official policies of the SAPD, the
    
    Texas     Department    of   Public     Safety,   and     the   International
    
    Association of Chiefs of Police Use of Force Model Policy in
    
    November 1994 did not prohibit the use of hog-ties.                He further
    
    avers that SCDS was not known to reasonably well-trained police
    
    officers in Texas at that time, and that hog-tying was reasonable
    
    under   these    circumstances.    To    counterbalance     this   affidavit,
    
    Gutierrez presents that of Lou Reiter, former Deputy Chief of the
    
    Los Angeles Police Department, who analyzes the facts of this case
    
    and states that Solis and Walters’ use of force and actions were
    
    unreasonable. Claiming that a “battle of the experts” thus exists,
    
    Solis and Walters assert that they are entitled to qualified
    
    immunity    because    “if   officers   of   reasonable    competence   could
    
    disagree on this issue, immunity should be recognized.”             Malley v.
    
    Briggs, 
    475 U.S. 335
    , 341, 
    106 S. Ct. 1092
    , 1096, 
    89 L. Ed. 2d 271
    
    (1986).    We do not believe that the Supreme Court intended by this
    
    statement to mean that summary judgment must be granted in favor of
    
    the police whenever they can find an expert to testify that their
    
    actions were reasonable;         in such a scenario, the police would
    
    
                                          -14-
    virtually always win summary judgment.                         Moreover, an expert’s
    
    opinion does not establish reasonableness as a matter of law,
    
    especially when directly contradicted by another expert’s well-
    
    supported opinion.2 See Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    ,       106   S.    Ct.    2505,   
    91 L. Ed. 2d 202
       (1986)     (holding     that
    
    credibility determinations are to be determined by the trier of
    
    fact, not by the court on a summary judgment motion); 7 Wigmore on
    
    Evidence § 1920, at 18 (Chadborn rev., 1978) (holding that an
    
    expert cannot usurp the jury’s function as a trier of fact because
    
    the jury can choose to reject the expert’s opinion).                        We can still
    
    conclude, of course, that one expert accurately expresses what a
    
    reasonable police officer would do, but we are not forced to so
    
    conclude by the mere presence of an expert’s opinion.
    
           The officers also point to certain facts that may favor them.
    
    They argue that Gutierrez may have posed a threat to himself,
    
    themselves,           and    the    public    as    he     stumbled      around   in   the
    
    intersection, although they do not argue that he posed a threat of
    
    death or serious physical injury to themselves or to others.                           See
    
    Garner, 471 U.S. at 3, 105 S. Ct. at 1697.                     They further note that
    
    immediately prior to being hog-tied, Gutierrez attempted to kick
    
    the back of the driver’s seat, the metal cage, and the windows of
    
    the    patrol      car       with   his    bare    feet,    and   that    they    believed
    
    Gutierrez’s legs had to be restrained, “for his safety and ours,”
    
           2
              An analogous issue often arises in cases concerning
    possible contract ambiguity.    A contract is not ambiguous just
    because one party so claims or because the parties disagree on the
    correct interpretation of its terms. See D.E.W., Inc., v. Local 93,
    Laborers’ Int’l Union, 
    957 F.2d 196
     (5th Cir. 1992).
    
                                                 -15-
    although they concede that at many other points during their
    
    encounter Gutierrez was quiet and nonviolent.    They also note that
    
    the EMS technicians refused to transport Gutierrez because of his
    
    violence, suggesting that they had no alternative but to hog-tie
    
    him in order to transport him.3       Finally, they also argue, and
    
    Gutierrez’s family does not dispute, that they were trying to help
    
    Gutierrez by taking him to the hospital when they hog-tied him, not
    
    to hurt him.
    
         To counter this summary judgment record evidence, Gutierrez
    
    points to many material disputes of fact.     A material dispute of
    
    fact exists as to whether a reasonable officer would have known of
    
    the first alleged causal factor of SCDS, Gutierrez’s drug use.
    
    Some evidence suggests that Walters and Solis knew that Gutierrez
    
    was under the influence of drugs.     Gutierrez told Walters that he
    
    had used bad cocaine.     His eyes were glassy, his speech was
    
    slurred, and he walked unsteadily, all classic symptoms of drug use
    
    on which the officers received police academy training. Solis also
    
    noted that Gutierrez was “exhibiting that he was high on some type
    
    of drugs.”     Later, after refusing to transport Gutierrez, EMS
    
    Technician Lavin characterized Gutierrez as having psychiatric
    
    problems rather than a reaction to bad drugs, suggesting that as
    
    the encounter progressed, the officers’ perception of Gutierrez as
    
         3
              The summary judgment record depositions of both Walters
    and Solis indicate that a wagon may have been available to
    transport Gutierrez, but that they chose not to call a wagon
    because they were afraid that Gutierrez might injure himself on the
    metal interior of the wagon.     We express no opinion as to the
    wisdom of the officers’ decision to transport Gutierrez in a patrol
    car rather than in the wagon.
    
                                   -16-
    being under the influence of drugs changed to one in which they
    
    concluded they were dealing with a person experiencing psychiatric
    
    problems. Other evidence could lead the jury to either conclusion.
    
         Another material dispute of fact exists with regard to the
    
    second alleged causal factor of SCDS, positional asphyxia.      The
    
    officers claim they placed Gutierrez on his side with his head
    
    facing the front of the rear seat, while Gutierrez’s family alleges
    
    that they placed him face down on the rear seat.    It is clear that
    
    upon arrival at the hospital, at least, Gutierrez was in a face
    
    down position.    This dispute is critical because the San Diego
    
    Study suggests that SCDS and positional hypoxia allegedly result
    
    when a person is placed in a prone face-down position so that all
    
    of their weight is concentrated on their chest, thereby interfering
    
    with the mechanical process of inhalation and exhalation.       See
    
    Donald T. Reay et al., Positional Asphyxia During Law Enforcement
    
    Transport, 13 Am. J. Forensic Med. Pathology 90 (1992); Donald T.
    
    Reay et al., Effects of Positional Restraint on Oxygen Saturation
    
    and Heart Rate Following Exercise, 9 Am. J. Forensic Med. Pathology
    
    16 (1988).   If the officers placed Gutierrez on his side, however,
    
    no breathing impairment would have been created.4
    
         In Anderson, the Supreme Court also noted that the information
    
    an officer possesses when that officer takes an action impacts upon
    
    
         4
              Even if the jury concludes that the officers placed
    Gutierrez on his side, it may still conclude that the officers’
    failure to monitor him, see post at 2856, amounted to deliberate
    indifference, thereby permitting Gutierrez to roll into a face down
    position during the time that the officers transported him to the
    hospital.
    
                                    -17-
    the objective legal reasonableness of the officer’s conduct. 483
    
    U.S. at 641, 107 S. Ct. at 3040.            A material dispute of fact exists
    
    with regard to whether the SAPD warned its officers of the possible
    
    dangers of hog-tying in these circumstances prior to November 1994.
    
    Walters   and      Solis   present    the    affidavit   of    Commander     Albert
    
    Rodriguez, which we discussed supra at 14-15. The summary judgment
    
    depositions of Walters and Solis also indicate that the SAPD never
    
    informed them that hog-tying was prohibited or of its dangers in
    
    these circumstances.
    
          Substantial evidence, however, appears to contradict these
    
    assertions.     San Diego mailed copies of San Diego Study to police
    
    departments     around     the   nation,     including   the    SAPD,   in   1992.
    
    Summary judgment record deposition testimony indicates that the
    
    SAPD had this study in its possession at the time of Gutierrez’s
    
    death, putting the SAPD on notice of the possible dangers of hog-
    
    tying in these circumstances.               The Criminal Law Update article,
    
    published in the fall of 1994 by the Texas Office of the Attorney
    
    General, notes that “Texas agencies that have banned the use of
    
    hog-tying include Dallas, San Antonio, Austin, Corsicana, and the
    
    DPS.” See Garth D. Savage et al., Sudden Custody Death Syndrome:
    
    the   Role    of    Hogtying,”       Criminal    Law   Update,    at    11   (Fall
    
    1994)(“Criminal Law Update article”). Although the depositions of
    
    SAPD representatives call into doubt whether the SAPD had indeed
    
    banned hog-tying, just ten days after Gutierrez’s death, SAPD
    
    Captain Benavides sent officers a memo “reminding” them that the
    
    use of a hog-tie on an arrestee was not allowed.                 The use of the
    
    
                                            -18-
    word “reminding,” particularly in light of the Criminal Law Update
    
    article,    suggests   that   the   SAPD   may   have   either   previously
    
    prohibited its officers from hog-tying arrestees or informed its
    
    officers that in these circumstances, the use of a hog-tie could
    
    prove to be dangerous.    The summary judgment record depositions of
    
    Solis and Walters further establish that the SAPD neither provided
    
    hog-ties to its officers as part of their official equipment nor
    
    trained them in their use.5         It is curious that the SAPD would
    
    condone hog-tying without instructing its officers how to use this
    
    restraint device properly or the dangers associated with it in
    
    these circumstances. Therefore, we find a material dispute of fact
    
    to exist on this issue.       This dispute is important because it may
    
    be difficult to conclude that the officers acted reasonably if they
    
    performed an action that had been banned by their department or of
    
    whose dangers in these circumstances they had been warned.
    
         Finally, a material dispute of fact exists as to whether
    
    Gutierrez posed a threat of death or serious bodily injury to the
    
    officers or to others.    At various points in the encounter, such as
    
    when the officers initially placed Gutierrez in the patrol car and
    
    drove into a neighboring parking lot, Gutierrez was quiet and
    
    peaceful.    Gutierrez’s family also points out that other police
    
    officers arrived at the scene of the encounter but did not assist
    
    
         5
              The depositions of Walters and Solis indicate that
    although the SAPD did not offer formal training on the use of hog-
    ties, officers used them on a fairly widespread basis. Walters and
    Solis each owned hog-ties that they purchased from other police
    officers with their personal funds. The hog-tie used on Gutierrez
    belonged to Officer Solis.
    
                                        -19-
    Walters and Solis in any way or stick around, thereby suggesting
    
    that the other officers did not consider Gutierrez to be violent.
    
    However, Gutierrez did kick Lavin in the chest, and Lavin’s summary
    
    judgment record affidavit describes Gutierrez as “one of the most
    
    agitated and violent persons that I have ever seen.”                   Moreover,
    
    immediately prior to the hog-tying, Gutierrez was kicking the back
    
    of the driver’s seat, the metal cage, and the windows of the patrol
    
    car with his bare feet, and the depositions of the officers state
    
    that they had to restrain his feet “for his safety and ours.”
    
          Accordingly, there are many material issues of fact in dispute
    
    which ultimately impinge upon our determination as to whether the
    
    officers employed reasonable force or excessive (and deadly) force
    
    by   the   manner   in   which   they    seized      Gutierrez.   Viewing     these
    
    disputed facts in the light most favorable to Gutierrez, the
    
    summary judgment record shows that the officers knew that Gutierrez
    
    was under the influence of drugs and that they placed him face down
    
    in a prone position.         Further, the record shows that the SAPD
    
    either had prohibited hog-tying or informed its officers of its
    
    dangers in     these     circumstances.        The    record   also   shows   that
    
    Gutierrez did not pose a threat of death or serious physical harm
    
    to the officers or to others, for at least some time, perhaps even
    
    a significant period of time, meaning that the officers were not
    
    justified in using deadly force.
    
          Other facts bearing heavily against the officers are not in
    
    dispute.    The officers admit that they failed to monitor Gutierrez
    
    as they drove toward the hospital, other than occasionally to check
    
    
                                            -20-
    to ensure that his bonds were still secure.                   See San Diego Task
    
    Force     Study   at   12     (“The   passenger      officer      should   maintain
    
    observation of the prisoner, monitoring his/her color, breathing
    
    and level of consciousness.”); Criminal Law Update article at 11.
    
    They also concede that the rear of the cruiser was darkened and
    
    that Solis rode beside Walters in the front of the car, rather than
    
    beside Gutierrez where he could have monitored his condition.                   See
    
    San Diego Study, at 12 (“During hours of darkness, an internal
    
    light source should be used in the police vehicle if needed to
    
    provide the passenger officer a clear view of the prisoner at all
    
    times.”).     Neither officer disputes that common and inexpensive
    
    alternatives      to   hog-tying      are   now    and     were   then   available.6
    
    Neither officer disputes that hog-tying has been largely abandoned
    
    by   police   forces     in    most    large      cities    across   the    nation.7
    
          6
              In Garner, the Supreme Court stated that “[w]e would
    hesitate to declare a police practice of long standing
    ‘unreasonable’ if doing so would severely hamper effective law
    enforcement.” 471 U.S. at 19, 105 S. Ct. at 1705 (noting that many
    alternative methods are available to apprehend unarmed, non-violent
    fleeing suspects other than shooting). Both the San Diego Study
    and the Criminal Law Update article point out common and
    inexpensive alternatives to hog-ties. One device, called the RIPP
    Hobble, consists of a Velcro strap to restrain the arrestee’s feet
    and a cord to connect the handcuffs and the Velcro strap. Since
    the arrestee’s feet are restrained, the arrestee cannot kick and
    must sit upright, a position that allows normal breathing. This
    device sells for approximately eight dollars. Criminal Law Update,
    at 9-10. The Criminal Law Update article notes that inexpensive
    flex-cuffs and plastic ties can be wrapped around an arrestee’s
    wrists and ankles and secured to a center post in a patrol car. Id.
    at 10.     Assuming arguendo that hog-tying is found to be
    unreasonable by a jury, such a finding therefore may not hamper
    effective law enforcement.
          7
              In  Garner ,  the Supreme Court explained that in
    “evaluating the reasonableness of police procedures under the
    Fourth Amendment, we have also looked to prevailing rules in
    
                                            -21-
    Moreover, unlike a rapidly evolving encounter with a potentially
    
    armed suspect in which the officer must react quickly, see, e.g.,
    
    Reese v. Anderson, 
    926 F.2d 494
    , 501 (5th Cir. 1991), the officers
    
    had time to contact a supervisor to get advice on how to transport
    
    Gutierrez.   Accordingly, based on the combination of the multiple
    
    factual issues in dispute and the evidence weighing against the
    
    officers, we cannot determine whether Walters and Solis’ conduct
    
    was objectively reasonable as a matter of law.8
    
         Cases from other circuits, albeit decided subsequently, are
    
    not inconsistent.9   In Estate of Phillips v. Milwaukee, 123 F.3d
    
    
    individual jurisdictions.” 
    471 U.S. 1
    5-16, 105 S. Ct. at 1703.
    After receiving the San Diego Study, police departments nationwide
    began to ban hog-tying.    “At least 70 percent of the nation’s
    largest police departments, including Detroit, New York, and Los
    Angeles, have banned hog-tying.” Criminal Law Update at 11. The
    article also notes that “Texas agencies that have banned the use of
    hog-tying include Dallas, San Antonio, Austin, Corsicana, and the
    DPS,” id., although, as we noted above, a material dispute of fact
    exists as to whether the SAPD had in fact banned hog-tying or
    warned its officers of its dangers under these circumstances.
         8
              Walters also argues that he cannot be liable for using
    excessive force because Gutierrez’s death did not result “directly
    and only from the use of force that was clearly excessive to the
    need.” Johnson v. Morel, 
    876 F.2d 477
    , 480 (5th Cir. 1989) (en
    banc). Assuming, arguendo, that Johnson still has viability, see
    Harper v. Harris County, Tex., 
    21 F.3d 597
    , 600 (5th Cir. 1994)
    (“We now hold that the Johnson standard is no longer valid in the
    wake of Hudson v. McMillian. . . .”), Walters’ argument is
    misplaced. We recently interpreted the language that Walters cites
    only to prohibit compensation for injuries caused by the use of
    reasonable force. See Dunn v. Denk, 
    79 F.3d 401
    , 403 (5th Cir.
    1996) (en banc) (“A trier of the fact can compensate only for the
    injury caused by the use of excessive force. There can be no award
    for injury caused by reasonable force.”). Hog-tying is asserted to
    be excessive force and the addendum to the Autopsy Report lists it
    as a contributory cause of Gutierrez’s death. Therefore, we reject
    Walter’s argument.
         9
              Objective reasonableness is determined by reference to
    the law as it existed at the time the conduct in question took
    
                                   -22-
    586 (7th Cir. 1997), two police officers attempted to restrain
    
    Phillips,   an     obese   person    exhibiting   psychiatric    problems    by
    
    lowering him to the floor and handcuffing his arms and legs (but
    
    not together in a hog-tie).         One officer gently put her knee on his
    
    back to keep him from rising while they called for a patrol wagon
    
    to take him for mental observation at a hospital.                The officers
    
    continuously monitored Phillip’s condition, and when he ceased
    
    breathing shortly thereafter, they began resuscitation efforts and
    
    revived him, although he died the next day in a hospital.                   The
    
    coroner    found    that   Phillips’    medical   condition,     obesity    and
    
    positional asphyxia jointly contributed to his death.             The Seventh
    
    Circuit held the officers’ conduct to be objectively reasonable
    
    because merely “restraining a person in a prone position with
    
    constant    monitoring,     cannot    be   characterized,   in    itself,    as
    
    ‘deadly’ force.”      Id. at 593-594.        The Seventh Circuit, however,
    
    expressly distinguished this factual situation from one in which
    
    police hog-tie a person who thereby dies, and stated that a
    
    different outcome might have resulted had Phillips been hog-tied.
    
    Id.   The court also noted that Phillips’ medical problems were not
    
    observable to the naked eye, and that the officers continuously
    
    monitored him and quickly began resuscitation efforts.
    
          Similarly, in Mayard v. Hopwood, 
    105 F.3d 1226
    , 1227-28 (8th
    
    Cir. 1997), the Eighth Circuit held police officers’ use of a hog-
    
    tie to be objectively reasonable.             When Mayard, the arrestee,
    
    
    place. See Harlow, 457 U.S. at 818-819, 102 S. Ct. at 2738-39. We
    accordingly discuss these cases only to show that they reach
    similar results.
    
                                          -23-
    became more    and   more   violent,   the   police   handcuffed   her   and
    
    attempted to place her in a patrol car.       Once in the car, she began
    
    kicking and hitting an officer, to which the officers responded by
    
    hog-tying her.   Without much explanation, the Eighth Circuit held
    
    the officers’ conduct to be objectively reasonable, “particularly
    
    . . . in light of Mayard’s resistance.” Id. at 1228.          The opinion
    
    does not state, however, whether she was under the influence of
    
    drugs, whether she was placed face-down, or whether she died as a
    
    result of being hog-tied.
    
         Finally, in Price v. San Diego, 
    1998 WL 1607
     (S.D. Cal. Jan.
    
    8, 1998), a drug-affected arrestee died in police custody after an
    
    intense struggle that concluded with the police hog-tying him and
    
    placing him in a face-down position.         The plaintiffs in that case
    
    relied on the San Diego Study and the research of Dr. Donald T.
    
    Reay, as does Gutierrez’s family in this case.         The district court
    
    noted that a recent study calls the validity of Dr. Reay’s research
    
    into question.       See Tom Neuman et al., Restraint Position and
    
    Positional Asphyxia, 30 Annals of Emergency Med. 578 (1997).             The
    
    court further noted that the persuasiveness of Dr. Neuman’s study
    
    led even Dr. Reay to concede that hog-tying is “physiologically
    
    neutral.”    Id. at *5.     Accordingly, the district court dismissed
    
    all excessive force claims against the officers because “little
    
    evidence is left that suggests that the hogtie restraint can cause
    
    asphyxia.”    Id. at *4.    Because Dr. Neuman’s study is not part of
    
    the summary judgment record in this case and Walters and Solis have
    
    not presented it to this court, however, we have not considered it
    
    
                                      -24-
    in deciding whether their actions were objectively reasonable. See
    
    Skotak v. Tenneco Resins, Inc., 
    953 F.2d 909
    , 915 (5th Cir. 1992);
    
    Fields v. City of South Houston, 
    922 F.2d 1183
    , 1188 (5th Cir.
    
    1991) (quoting John v. Louisiana, 757 698, 710 (5th Cir. 1985))
    
    (“[M]aterials not presented to the district court for consideration
    
    of a motion for summary judgment are never properly before the
    
    reviewing court.”).
    
           In conclusion, our holding today is very limited.              Both the
    
    San Diego Study and Criminal Law Update article suggest hog-tying
    
    may present a substantial risk of death or serious bodily harm only
    
    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.          San Diego Study at 6-10; Criminal Law
    
    Update at 7.      Whether these circumstances exist in this case is
    
    unclear because of the many material disputes of fact.                Based on
    
    the disputed facts and undisputed facts not favoring the officers,
    
    we     cannot   determine    whether     their   conduct     was    objectively
    
    reasonable.     Assuming this case proceeds to trial, however, 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, and the jury can choose to credit
    
    certain facts over others, which we cannot do in reviewing a denial
    
    of summary judgment. See Spann v. Rainey, 
    987 F.2d 1110
    , 1116 (5th
    
    Cir.    1993)   (noting     that   a    different   result    may    occur   on
    
    interlocutory appeal from a denial of qualified immunity and at
    
    trial because the plaintiff bears the burden of proving facts that
    
    
                                           -25-
    we consider in the light most favorable to him).                    Accordingly, we
    
    dismiss the officers’ appeal from the district court’s denial of
    
    summary judgment on Gutierrez’s Fourth Amendment claim for lack of
    
    jurisdiction.10        See Hale v. Townley, 
    45 F.3d 914
    , 918 (5th Cir.
    
    1995) (dismissing interlocutory appeal on a denial of summary
    
    judgment on an excessive force claim because disputed material
    
    issues of fact made it impossible to determine whether officers’
    
    conduct was objectively reasonable); see also Naylor v. State of
    
    La, Dep’t of Corrections, 
    123 F.3d 855
    , 857 (5th Cir. 1997); Harper
    
    v. Harris County, 
    21 F.3d 597
    , 602 (5th Cir. 1994).
    
                                                V
    
         The district court also denied summary judgment on Gutierrez’s
    
    Fourteenth Amendment claim.              “All claims that law enforcement
    
    officers have used excessive force))deadly or not))in the course of
    
    an arrest, investigatory stop, or other ‘seizure’ of a free citizen
    
    should    be        analyzed     under   the          Fourth    Amendment    and   its
    
    ‘reasonableness’ standard, rather than under a ‘substantive due
    
    process’ approach.”            Graham, 490 U.S. at 395, 109 S. Ct. at 1871
    
    (emphasis      in    original).     While       the    Fourth    Amendment   protects
    
    arrestees, once an arrest is complete, pretrial detainees are
    
    protected by the due process clause of the Fifth or Fourteenth
    
    Amendments.     See Brothers v. Klevenhagen, 
    28 F.3d 452
    , 455-56 (5th
    
    Cir. 1994); Valencia v. Wiggins, 
    981 F.2d 1440
    , 1445 (5th Cir.
    
    1993).    Although the point at which an arrest ends and pretrial
    
         10
              Because disputes of material fact prevent us from
    determining the objective reasonableness of the officers’ conduct,
    we do not reach their other arguments.
    
                                             -26-
    detainment begins is not always clear, see Valencia, 981 F.2d at
    
    1449 n.44, we have held that the Fifth or Fourteenth Amendments
    
    begin to      protect   persons    “after     the   incidents   of   arrest   are
    
    completed, after the plaintiff has been released from the arresting
    
    officer’s custody, and after the plaintiff has been in detention
    
    awaiting trial for a significant period of time.” Id. at 1443-43
    
    (emphasis in original). Thus, in Brothers, we found Brothers to be
    
    a pretrial detainee protected by the Fourteenth Amendment where he
    
    had been arrested, processed by the police department, and spent
    
    several hours in jail before the police allegedly used excessive
    
    force on him.     28 F.3d at 452.
    
         Walters      and   Solis     seized      Gutierrez’s    person,     thereby
    
    triggering his Fourth Amendment protections.             Shortly thereafter,
    
    Solis   and    Walters,    the    very     officers    who   initially   seized
    
    Gutierrez, hog-tied him.          The hog-tying also occurred relatively
    
    close to the spot where the officers seized Gutierrez.               Therefore,
    
    we find that Gutierrez enjoyed the protections of the Fourth
    
    Amendment.     After a thorough review of Gutierrez’s complaint, we
    
    find his Fourteenth Amendment claim to be based on the officers’
    
    alleged use of excessive force, an alternative basis for recovery
    
    to the Fourth Amendment claim.           We accordingly vacate and render a
    
    take nothing verdict on the Fourteenth Amendment claim.                       See
    
    Graham, 490 U.S. at 395, 109 S. Ct. at 1871.
    
                                             VI
    
         For the foregoing reasons, we DISMISS Walters and Solis’
    
    appeal of Gutierrez’s Fourth Amendment claim and VACATE and RENDER
    
    
                                          -27-
    a take nothing verdict on his Fourteenth Amendment claim.
    
    
    
    
                                  -28-