Timpa v. Dillard ( 2021 )

Case: 20-10876 Document: 00516132354 Page: 1 Date Filed: 12/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 15, 2021
No. 20-10876 Lyle W. Cayce
Clerk
Vicki Timpa, individually, and as representative of The Estate of
Anthony Timpa; K.T., a minor child; Cheryll Timpa, as next of
friend of K.T., a minor child,
Plaintiffs—Appellants,
versus
Dustin Dillard; Danny Vasquez; Raymond Dominguez;
Domingo Rivera; Kevin Mansell,
Defendants—Appellees,
versus
Joe Timpa,
Intervenor—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC 3:16-CV-3089
Before Clement, Southwick, and Willett, Circuit Judges.
Edith Brown Clement, Circuit Judge:
This appeal arises from the death of Anthony Timpa while he was
being restrained by law enforcement after he called 911 and asked for
Case: 20-10876 Document: 00516132354 Page: 2 Date Filed: 12/15/2021
No. 20-10876
assistance during a mental health episode. Timpa’s family (the Plaintiffs)
filed this 42 U.S.C. § 1983 lawsuit, alleging that five officers (the Officers) of
the Dallas Police Department (DPD) violated Timpa’s Fourth Amendment
rights by causing his death through the prolonged use of a prone restraint
with bodyweight force during his arrest. As relevant to this appeal, Plaintiffs
asserted claims of excessive force and of bystander liability. The district
court granted summary judgment to the individual Defendant-Officers on all
claims and held that they were entitled to qualified immunity. We
REVERSE summary judgment as to the claim of excessive force, and we
AFFIRM in part and REVERSE in part as to the claims of bystander
liability.
I.
On the evening of August 10, 2016, Timpa called 911 and asked to be
picked up. He stated that he had a history of mental illness, he had not taken
his medications, he was “having a lot of anxiety,” and he was afraid of a man
that was with him. The call ended abruptly. When the operator called back,
Timpa provided his location on Mockingbird Lane in Dallas, Texas. In the
background of the call, the sounds of honking and of people arguing could be
heard. A motorist then placed a 911 call to report a man “running up and
down the highway on Mockingbird [Lane,] . . . stopping traffic” and
attempting to climb a public bus. A private security guard called 911 with the
same report and noted his belief that the man “[was] on something.” The
dispatcher requested officers respond to a Crisis Intervention Training
(CIT) situation and described Timpa as a white male with schizophrenia off
his medications.
A CIT call informs responding officers that the situation involves an
individual who may be experiencing mental health issues. DPD General
Orders instructed that five officers report to CIT calls to perform the “Five-
2
Case: 20-10876 Document: 00516132354 Page: 3 Date Filed: 12/15/2021
No. 20-10876
Man Takedown,” which is a control technique where each of four officers
secures one of the subject’s limbs while a fifth officer holds the head. This
technique allows officers to gain control over a subject and simultaneously
prevent him from injuring himself or others. Regardless of whether officers
were responding to a CIT call, DPD General Orders instructed that, for all
arrestees, “as soon as [they] are brought under control, they are placed in an
upright position (if possible) or on their side.”
DPD General Orders reiterated this instruction for the restraint of
subjects suffering from “excited delirium.” Excited delirium is “a state of
agitation, excitability, and paranoia . . . often associated with drug use, most
commonly cocaine.” Goode v. Baggett, 811 F. App’x 227, 233 n.6 (5th Cir.
2020) (citing Gutierrez v. City of San Antonio, 139 F.3d 441, 444 (5th Cir.
1998)). The Orders described the following symptoms as indicators of
excited delirium: “[d]elusions of persecution,” “[p]aranoia,” and
“[t]hrashing after restraint.” Officers were instructed to “treat the arrest of
a subject [in a state of excited delirium] as a medical emergency” and to
“continuously monitor[]” the arrestee because “[s]ubjects suffering from
this disorder may collapse and die without warning.” The Orders
commanded that subjects in a state of excited delirium “will be placed in an
upright position (if possible) or on their side as soon as they are brought under
control.” In addition, the Officers on the scene received specific training on
excited delirium, which twice reiterated that officers must, “as soon as
possible, move [the] subject to a recovery position (on [their] side or seated
upright)” because the prolonged use of a prone restraint may result in
“positional asphyxia.” The training also warned that “[i]f [the] subject
suddenly calms, goes unconscious, or otherwise becomes unresponsive,
advise [a paramedic] immediately,” because “[a] sudden cessation of
struggle is a prime indicator that the subject may be experiencing fatal
autonomic dysfunction (sudden death).”
3
Case: 20-10876 Document: 00516132354 Page: 4 Date Filed: 12/15/2021
No. 20-10876
Supervising Police Sergeant Kevin Mansell arrived first on
Mockingbird Lane at 10:36 p.m. By that point, Timpa had already been
handcuffed by two private security guards and he was sitting barefoot on the
grass beside the sidewalk. Mansell called for backup and for an ambulance,
stating that Timpa was “in traffic . . . and he’s definitely going to be a danger
to himself.” According to Mansell, Timpa was “thrashing” on the ground,
“kicking in the air [at] nobody that’s there,” and “hollering, ‘Help me, help
me, God help me.’” Once, before the other Officers arrived, Timpa
managed to roll into the gutter of the street and Mansell and a security guard
lifted Timpa and placed him back on the grass.
Within seven to ten minutes, two paramedics, Senior Corporal
Raymond Dominguez, and Officers Dustin Dillard, Danny Vasquez, and
Domingo Rivera arrived. Each of the Officers was informed that Timpa was
a mentally ill individual off his medications. Three of the Officers (Dillard,
Vasquez, and Rivera) were wearing body cameras, which captured the
following fifteen minutes.
The footage begins with Timpa handcuffed and barefoot on his back
on the grass boulevard beside a bus bench, yelling: “Help me! . . . You’re
gonna kill me!” The Officers attempted to calm Timpa. Timpa rolled back
and forth on the grass, then rolled close to the curb of the street. Dillard and
Vasquez immediately forced Timpa onto his stomach and each pressed one
knee on Timpa’s back while a security guard restrained his legs.
Vasquez removed his knee after approximately two minutes. Dillard
continued to press his knee onto Timpa’s upper back in the prone restraint
position for fourteen minutes and seven seconds. He pressed his left knee
into Timpa’s back and his left hand between Timpa’s shoulders with his right
hand pressing on Timpa’s right shoulder intermittently. In his protective
vest and duty belt, Dillard weighed approximately 190 pounds.
4
Case: 20-10876 Document: 00516132354 Page: 5 Date Filed: 12/15/2021
No. 20-10876
Approximately fifteen seconds into the restraint, Dillard asked
Timpa: “What did you take?” Timpa answered, “Coke.” 1 One minute into
the restraint, a paramedic attempted to take Timpa’s vitals. The paramedic
was unable to get a reading as Timpa continued to struggle and yelled: “I
can’t live!” Between three to seven minutes into the restraint, the Officers
swapped out the private security guard’s handcuffs with some difficulty
because of Timpa’s continued flailing. 2 At the same time, the Officers zip
tied Timpa’s ankles and forced his lower legs under the cover of a concrete
bus bench. While the Officers were securing restraints on Timpa’s ankles,
one Defendant-Officer said: “We don’t have to hogtie him, do we?”
Another Defendant-Officer suggested “we could pull his legs up.” The
Officers ultimately left Timpa’s legs under the bus bench.
Seven minutes into the restraint, Timpa—prone and cuffed at the
hands and ankles—had calmed down sufficiently for a paramedic to
successfully take his vitals. When the paramedic approached, Dillard asked:
“Do you want me to roll him over?” The paramedic responded: “Before
y’all move him, if I can just get right here and see if I can get to his arm.”
1
Dillard testified that he did not hear Timpa reply, “coke,” but the video confirms
that Timpa audibly stated he had taken cocaine. The footage reflects Dillard asking Timpa
what he had taken at least seven times during the restraint and concluding at least three
times that Timpa “took something.” Timpa was also exhibiting signs of excited delirium,
such as “yelling incoherently[] and acting really strange.” Goode, 811 F. App’x at 236
(internal quotation marks omitted); see also Aguirre v. City of San Antonio, 995 F.3d 395, 414
(5th Cir. 2021) (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”).
Drawing all inferences in favor of the Plaintiffs, Dillard was aware that Timpa may have
been in a state of excited delirium approximately twenty seconds into the restraint.
2
The parties dispute whether Timpa kicked at the Officers during the arrest.
Dillard testified that he did not observe Timpa intentionally kick at any Officers. The video
does not clarify whether Timpa was flailing or aiming to kick. The dispute is not material
because kicking in the air is still a form of resistance to arrest. See Tucker v. City of
Shreveport, 998 F.3d 165, 182 (5th Cir. 2021).
5
Case: 20-10876 Document: 00516132354 Page: 6 Date Filed: 12/15/2021
No. 20-10876
While the paramedic was taking Timpa’s vitals, Rivera left the scene to find
Timpa’s car. By the time the paramedic had finished, approximately nine
minutes into the restraint, Timpa’s legs had stopped kicking, though he
remained vocal and kept calling for help.
Thirty seconds later, only Timpa’s head moved intermittently from
side to side. He continued to cry out “Help me!” but his voice weakened
and slurred. Much of what he said was too muffled to be comprehensible.
Forty-five seconds later, he suddenly stilled and was quiet except for a few
moans. Then, he fell limp and nonresponsive for the final three-and-a-half
minutes of the restraint.
The Officers discussed what to do next. Dominguez said to Mansell:
“So what’s the plan? You’re [in charge] out here, sir.” Mansell responded
that they should “strap [Timpa] to a gurney.” Mansell then returned to his
patrol car, “a few feet [away],” to check for warrants for Timpa’s arrest. He
sat in his vehicle “with the car door open.”
During this time, the Officers began to express concern that Timpa
was nonresponsive. Dominguez said, “Tony, are you still with us?”
Vasquez said, “Is he acknowledging you anymore?” Dominguez said, “Not
really.” Dillard called Timpa’s name to no response. Dominguez stated that
he wanted to “mak[e] sure he was still breathing ‘cause his nose is buried in
the [ground].” Dillard said, “I think he’s asleep!” and stated that he heard
Timpa “snoring.” Dominguez and Vasquez expressed surprise and then
made jesting comments about Timpa’s loss of consciousness. A paramedic
approached and asked what happened. Dillard responded: “I don’t know.
He just got quiet.” Vasquez said: “All of a sudden, just . . . bloop.” The
paramedic administered a sedative and Timpa’s head twitched. Then, three-
and-a-half minutes after Timpa had become nonresponsive, Dillard removed
6
Case: 20-10876 Document: 00516132354 Page: 7 Date Filed: 12/15/2021
No. 20-10876
his knee. Shortly after the Officers placed Timpa on the gurney, the
paramedics determined that he was dead.
The Dallas County Medical Examiner conducted Timpa’s autopsy
and ruled his death a homicide. The report identified cocaine in Timpa’s
blood and concluded that he had been suffering from “excited delirium
syndrome.” The report further concluded that Timpa died from “sudden
cardiac death due to the toxic effects of cocaine and [the] physiologic stress
associated with physical restraint,” which could have resulted in
“mechanical or positional asphyxia.” Plaintiffs’ medical expert, Dr. Kim
Collins, MD, a forensic pathologist, went one step further and concluded,
“to a reasonable degree of medical certainty,” that Timpa’s death was
caused by mechanical asphyxia, which occurs when an individual’s torso is
compressed, preventing respiration and circulation of oxygen. She testified
that Timpa’s obesity, extreme exertion, and state of excited delirium
exacerbated the risk of mechanical asphyxiation. She further testified that
Timpa would have lived had he been restrained for the same amount of time
in a prone position without force applied to his back.
Vicki Timpa, the mother of the deceased, individually and as
representative of the estate of the deceased, and Cheryll Timpa, individually
and as next friend of K.T., a minor child of the deceased, filed this
Section 1983 lawsuit alleging, as relevant here, a claim of excessive force
against Defendant-Officer Dillard and claims of bystander liability against
Defendant-Officers Mansell, Vasquez, Dominguez, and Rivera. Joe Timpa,
the father of the deceased, later intervened. On summary judgment, the
district court granted qualified immunity to the Officers in their individual
capacity on the basis that “there was no law clearly establishing Defendants’
conduct as a constitutional violation prior to August 10, 2016.” The district
court dismissed the bystander liability claims on the same basis. On appeal,
7
Case: 20-10876 Document: 00516132354 Page: 8 Date Filed: 12/15/2021
No. 20-10876
the Plaintiffs argue that the district court erred in dismissing the excessive
force claim and the bystander liability claims.
II.
We review the district court’s grant of summary judgment de novo. See
Aguirre, 995 F.3d at 405. Summary judgment is appropriate only “if the
movant shows that there is no genuine dispute as to any material fact and
[that] the movant is entitled to judgment as a matter of law.” Darden v. City
of Fort Worth, 880 F.3d 722, 727 (5th Cir. 2018) (quoting FED. R. CIV. P.
56(a)). A fact is “material” if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The defense of qualified immunity “balance[s] two competing
societal interests: ‘the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.’” Joseph
ex rel. Est. of Joseph v. Bartlett, 981 F.3d 319, 328 (5th Cir. 2020) (quoting
Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Where a plaintiff alleges
excessive force during an arrest, “the federal right at issue is the Fourth
Amendment right against unreasonable seizures.” Tolan v. Cotton, 572 U.S.
650, 656 (2014) (per curiam).
Whether the amount of force used was objectively reasonable requires
“a balancing 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. (cleaned up) (quoting Tennessee
v. Garner, 471 U.S. 1, 8 (1985)). A fact-specific range of permissible force
emerges, “such that the need for force determines how much force is
constitutionally permissible.” Bush v. Strain, 513 F.3d 492, 501 (5th Cir.
2008). At one end of the spectrum, “a threat of serious physical harm, either
to the officer or to others” may justify the use of deadly force. Tennessee v.
8
Case: 20-10876 Document: 00516132354 Page: 9 Date Filed: 12/15/2021
No. 20-10876
Garner, 471 U.S. 1, 11 (1985). At the other end of the spectrum, when a
subject has been subdued—meaning, he “lacks any means of evading
custody” and does not pose a threat of immediate harm—the further use of
force is not justified. Bartlett, 981 F.3d at 335. For the cases in between, a
court should consider the “totality of the circumstances.” Darden, 880 F.3d
at 728.
But a plaintiff’s showing that a constitutional violation has occurred is
not enough. The doctrine of qualified immunity shields “government
officials performing discretionary functions . . . 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 defeat a motion for
summary judgment based on qualified immunity, the plaintiff must present
evidence “(1) that the official violated a statutory or constitutional right, and
(2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)
(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
III.
We begin with the excessive force claim against Dillard. The Plaintiffs
contend that Dillard unlawfully restrained Timpa in the prone position with
bodyweight force pressed on Timpa’s back and that the state of the law in
August 2016 clearly established that officers could not subject a subdued
individual to the use of force. Although we may begin with either prong of
qualified immunity, we turn first to the merits of the excessive force claim to
provide clarity and guidance to law enforcement.
The Plaintiffs contend that Dillard’s restraint of Timpa constituted
both excessive force and deadly force in violation of the Fourth Amendment.
Claims that law enforcement used deadly force are “treated as a special
9
Case: 20-10876 Document: 00516132354 Page: 10 Date Filed: 12/15/2021
No. 20-10876
subset of excessive force claims.” Aguirre, 995 F.3d at 412 (citing Gutierrez,
139 F.3d at 446). We consider first whether Dillard’s use of force was
excessive and second whether a jury could find the force used was deadly.
A.
1.
The reasonableness of the use of force turns on our consideration of
the full factual context, particularly the following three factors: (1) “the
severity of the crime at issue,” (2) “whether the suspect pose[d] an
immediate threat to the safety of the officers or others,” and (3) “whether he
[was] actively resisting arrest or attempting to evade arrest by flight.”
Graham v. Connor, 490 U.S. 386, 396 (1989). “A court . . . cannot apply this
standard mechanically,” but must look through the eyes of a reasonable
officer on the scene. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015).
As to the first Graham factor, Dillard’s continued use of force was not
justified by a criminal investigatory function. The Officers concede that
Timpa’s criminal liability was “minor”—no more than a traffic violation.
See Tex. Penal Code § 42.03; Tex. Transp. Code §§ 552.001–.006,
542.301. The Officers did not intend to charge him with any crimes. The
first factor weighs against the reasonableness of the prolonged use of
bodyweight force. Cf. Trammell v. Fruge, 868 F.3d 332, 340 (5th Cir. 2017)
(noting that “a minor offense militat[es] against the use of force”); Deville v.
Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (same).
In addition, we note that these facts do not present the paradigmatic
circumstance of “an officer arriv[ing] at the scene with little or no
information and [having] to make a split-second decision” in response to
criminal activity. Darden, 880 F.3d at 732. The Officers had been dispatched
to a CIT situation after Timpa himself had called 911 requesting to be picked
up. Darden was thus equipped with the understanding that Timpa was likely
10
Case: 20-10876 Document: 00516132354 Page: 11 Date Filed: 12/15/2021
No. 20-10876
experiencing a mental health crisis and needed medical assistance. He
arrived to observe a barefoot, handcuffed man in distress on the grass
boulevard beside the sidewalk. These perceptions were material to his
assessment of “how much additional force, if any, was necessary” to control
the situation. Id.
The second Graham factor considers whether the subject posed “an
immediate threat” to the safety of others. Graham, 490 U.S. at 396. The
Officers contend that the continued use of force was justified because Timpa
had interfered with traffic earlier in the evening and had kicked his legs when
the Officers attempted to restrain him. But “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 County, 560 F.3d
404, 413 (5th Cir. 2009). Approximately nine minutes into the restraint,
Timpa was cuffed at both the wrists and the ankles, his lower legs had
stopped moving, and he was surrounded by five officers, two paramedics, and
two private security guards—most of whom were mulling about while Dillard
maintained his bodyweight force on Timpa’s upper back.
As to any threat of harm to the Officers, it is obvious that Timpa could
no longer kick when he was lying face down and handcuffed with his ankles
restrained and confined under the bus bench. As to any threat to himself,
Timpa had already calmed down sufficiently for the paramedics to take his
vitals. As to any threat to passing motorists, Plaintiffs’ expert opined that “it
was unlikely, if not completely impossible, for [Timpa] to roll into the street
considering he was literally flanked on all sides by police officers.” And when
the paramedic asked if Timpa could walk to the ambulance in ankle cuffs,
Dillard said: “I highly doubt it.” A jury could find that no objectively
reasonable officer would believe that Timpa—restrained, surrounded, and
subdued—continued to pose an immediate threat of harm justifying the
prolonged use of force. Cf. Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2241
11
Case: 20-10876 Document: 00516132354 Page: 12 Date Filed: 12/15/2021
No. 20-10876
(2021) (per curiam) (noting that whether a subject “was handcuffed and leg
shackled” reflects on “the security problem at issue[] and the threat—to
both [the arrestee] and others—reasonably perceived by the officers”);
Aguirre, 995 F.3d at 409 (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). The second Graham factor weighs against the objective
reasonableness of the prolonged use of force.
Turning to the third Graham factor, the Plaintiffs have raised a
genuine dispute of material fact as to whether Timpa continued to actively
resist arrest. The Officers first argue that the continued use of force was
justified because Timpa struggled intermittently. But “even if [Timpa] failed
to comply and struggled against the officers at certain points throughout the
encounter, that resistance did not justify force indefinitely.” Bartlett, 981
F.3d at 335. Officers cannot use force independent of a subject’s
“contemporaneous, active resistance.” Id. Thus, even assuming that
Timpa’s flailing amounted to active resistance, “the force calculus change[d]
substantially once that resistance end[ed]” nine minutes into the restraint.
Curran v. Aleshire, 800 F.3d 656, 661 (5th Cir. 2015); see also Tucker, 998 F.3d
at 181–82 (“[A] use of force that may begin as reasonably necessary in order
to obtain compliance may cease to be so as a suspect becomes more
compliant.”).
The Officers next argue that Timpa continued to actively resist arrest
by “squirm[ing]” and “mov[ing] his head from left to right” in the final
minutes of the restraint. Plaintiffs contend that Timpa moved his body in
order to breathe. Plaintiffs’ expert, Dr. Collins, testified that pressing down
on the torso of a subject held in a prone restraint “greatly increases the work
of breathing,” which leads the subject to “experience[] air hunger, panic, and
anxiety as Mr. Timpa did.” She concluded: “[i]t can be anticipated that the
12
Case: 20-10876 Document: 00516132354 Page: 13 Date Filed: 12/15/2021
No. 20-10876
victim will attempt to move his body in order to breathe.” 3 The body camera
footage does not plainly contradict the Plaintiffs’ version of the facts: Timpa
attempts to raise his torso and cries out repetitively: “Help me,” “You’re
gonna kill me,” “I’m gonna die,” “I can’t live.”
The risks of asphyxiation in this circumstance should have been
familiar to Dillard because he had received training on the use of a prone
restraint to control subjects in a state of excited delirium. See Darden, 880
F.3d at 732 n.8 (“[T]he violation of police department policies . . . and
corresponding notice to officers [is] relevant in analyzing the reasonableness
of a particular use of force under the totality of the circumstances.”). DPD
training instructed that a subject in a state of excited delirium must, “as soon
as possible[,] [be] mov[ed] . . . to a recovery position (on [their] side or seated
upright),” because the prolonged use of a prone restraint may result in a
“combination of increased oxygen demand with a failure to maintain an open
airway and/or inhibition of the chest wall and diaphragm [that] has been cited
in positional asphyxia deaths.” Dillard was also trained that “[i]f [the]
subject suddenly calms, goes unconscious, or otherwise becomes
unresponsive, . . . [a] sudden cessation of struggle is a prime indicator that
the subject may be experiencing fatal autonomic dysfunction (sudden
death).” A sudden cessation of struggle and lack of responsiveness is
precisely what occurred in the final minutes of Timpa’s restraint. 4 A jury
3
A jury could also consider prominent guidance circulated by the Department of
Justice warning of the risk of positional asphyxia resulting from the use of a prone restraint.
See Nat’l Law Enf’t Tech. Ctr., U.S. Dep’t of Just., Positional
Ashyxia—Sudden Death (1995), https://www.ncjrs.gov/pdffiles/posasph.pdf; cf.
Lombardo, 141 S. Ct. at 2241 (noting that “well-known police guidance” warning “that the
struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey
officers’ commands,” reflects on whether the force used was excessive).
4
The Officers contend that they believed Timpa to be faking sleep as a tactic to
gain an advantage. That issue “is a factual question that must be decided by a jury.”
13
Case: 20-10876 Document: 00516132354 Page: 14 Date Filed: 12/15/2021
No. 20-10876
could find that an objectively reasonable officer with Dillard’s training would
have concluded that Timpa was struggling to breathe, not resisting arrest. 5
See Darden, 880 F.3d at 730 (holding that a “jury could conclude that all
reasonable officers on the scene would have believed that [the subject] was
merely trying to get into a position where he could breathe and was not
resisting arrest”); see also Goode, 811 F. App’x at 232 (same). The final
Graham factor weighs against the objective reasonableness of the continued
use of force.
Viewing the facts in the light most positive to the Plaintiffs, none of
the Graham factors justified the prolonged use of force. A jury could find
that Timpa was subdued by nine minutes into the restraint and that the
continued use of force was objectively unreasonable in violation of Timpa’s
Fourth Amendment rights. Of course, a jury may ultimately conclude the
opposite: that Timpa was not subdued and that he continued to pose an
immediate threat throughout his restraint. Under that consideration of the
facts, Dillard’s decision to continue exercising force might be reasonable.
Ultimately, it is the job of the factfinder, not of this court, to resolve those
Darden, 880 F.3d at 730. At the summary judgment phase, it is not for us to “weigh the
evidence and determine the truth of the matter,” but rather, to draw all justifiable
inferences in favor of the non-movant. Liberty Lobby, 477 U.S. at 249.
5
That paramedics were present during the arrest and did not intervene does not
change the calculus of objective unreasonableness. See, e.g., Aguirre, 995 F.3d at 404, 420
(finding a Fourth Amendment violation when officers used a maximal prone restraint
despite the presence of a medical tech officer); Goode, 811 F. App’x at 229 (finding a Fourth
Amendment violation when officers used a hog-tie restraint despite the presence of medical
personnel); Gutierrez, 139 F.3d at 442–43 (finding a Fourth Amendment violation when
officers used a hog-tie restraint despite the assistance of paramedics in placing the subject
in that position). And under DPD General Orders, it is not the paramedics but the
“[o]fficers [that] are responsible for rendering first aid to injured subjects,” including:
“[m]onitoring the subject,” “[c]hecking pulse and skin color,” and “[c]hecking for
consciousness.”
14
Case: 20-10876 Document: 00516132354 Page: 15 Date Filed: 12/15/2021
No. 20-10876
factual disputes for itself. A jury’s interpretation ensures that legal
judgments of reasonableness hew closely to widely shared expectations of the
use of force by our police officers.
2.
The deadly force inquiry is two-pronged: First, whether the force used
constituted deadly force; and second, whether the subject posed a threat of
serious harm justifying the use of deadly force. See Gutierrez, 139 F.3d at 446
(citing Garner, 471 U.S. at 11). Plaintiffs argue that the prolonged use of a
prone restraint with bodyweight force on the back of an individual who
possessed apparent risk factors and posed no serious threat of harm
constituted an objectively unreasonable application of deadly force.
a.
“[W]hether a particular use of force is ‘deadly force’ is a question of
fact, not one of law.” Flores v. City of Palacios, 381 F.3d 391, 399 (5th Cir.
2004). The question is whether a jury could find that the use of force
“carr[ied] with it a substantial risk of causing death or serious bodily harm.”
Gutierrez, 139 F.3d at 446 (quoting Robinette v. Barnes, 854 F.2d 909, 912 (6th
Cir. 1988)). The Plaintiffs argue that kneeling on the back of an individual
with three risk factors—obesity, excited delirium, and prior vigorous
exertion—carried a substantial risk of causing death or serious bodily harm.
The Officers argue that the Plaintiffs have failed to set forth sufficient
evidence to create a triable fact issue.
The summary judgment record includes DPD’s General Orders
instructing officers to place subdued subjects—particularly those in a state of
excited delirium—in an upright position or on their side. The Officers were
trained that the prolonged use of a prone restraint on subjects in a state of
excited delirium can result in positional asphyxia death. The jury could also
consider prominent guidance from the Department of Justice instructing
15
Case: 20-10876 Document: 00516132354 Page: 16 Date Filed: 12/15/2021
No. 20-10876
that, to avoid positional asphyxia, officers should, “[a]s soon as the suspect
is handcuffed, get him off his stomach.” DOJ, Positional Asphyxia—Sudden
Death 1–2. The Department’s guidance highlighted (1) obesity, (2) excited
delirium, and (3) vigorous exertion as “predisposing factors” that
“compound the risk of sudden death.” Id.Plaintiffs also presented expert testimony on the substantial risks of a
prone restraint with weight force on an obese and physically exhausted
subject in a state of excited delirium. Plaintiffs’ medical expert, Dr. Collins,
testified that the prone restraint position with bodyweight force is inherently
lethal if used for an extended period of time. She described in detail how the
use of the prone restraint with bodyweight force significantly increased the
likelihood of asphyxiation:
In the prone position, an individual is unable to effectively
move the diaphragm, chest wall, and abdomen to
breathe. . . . The body is also unable to adequately circulate
blood resulting in engorgement and stagnation of blood flow in
the upper body. . . . The face, partially or fully, pressed to the
ground further decreases oxygenation. . . . When force is on
the back and shoulders, . . . [i]t is extremely difficult to move
the chest and abdomen. . . . When the body is prone and great
force is on the back, the head, neck, and shoulders become
engorged with blood while the lower part of the body is of
normal color. Mr. Timpa had marked cyanosis with a clear line
of demarcation across his chest indicative of . . . a tremendous
amount of pressure to his back.
She testified that Timpa would have lived had he been restrained for the same
amount of time in the prone position without force applied to his back. 6
6
The Officers argue that the Plaintiffs must identify the precise frequency with
which death results from the use of a prone restraint combined with weight force. They
cite no caselaw for that premise and we are not aware of any. Cf. Aguirre, 995 F.3d at 413–
16
Case: 20-10876 Document: 00516132354 Page: 17 Date Filed: 12/15/2021
No. 20-10876
Dr. Collins further testified that the risk of acute respiratory failure is
greater when (1) “[i]ndividuals . . . have been physically exhausted prior to
this restraint,” (2) “the individual is obese or has a large belly as this mass
encroaches on the abdomen and diaphragm,” (3) the individual suffers from
untreated psychiatric illness, which may increase oxygen demand, and (4) the
individual is drug-affected, which “increases metabolism” and requires
“more blood pumping through [the] body” carrying “more oxygen.” As Dr.
Collins explained—and as Dillard had been trained—the latter two factors
can result in a state of excited delirium.
A jury could find that all three of these risk factors were apparent on
the night that Timpa died. The video footage reflects Timpa exerting
significant effort while the Officers applied restraints. The video footage also
clearly reflects Timpa’s larger body size. The 911 operator informed the
Officers that Timpa was a “diagnosed schizophrenic” off his medications.
And Timpa told the Officers that he had used cocaine.
Plaintiffs have raised a genuine issue of material fact as to whether the
use of a prone restraint with bodyweight force on an individual with three
apparent risk factors—obesity, physical exhaustion, and excited delirium—
“create[d] a substantial risk of death or serious bodily injury.” Gutierrez, 139
F.3d at 446. A jury could find that this use of force constituted “deadly
force.”
b.
Officers can use deadly force only if they have “probable cause to
believe that the suspect poses a threat of serious physical harm.” Mason v.
14 (relying on an experts’ explanation of the increased risks of serious harm from the use
of a maximal prone restraint); Gutierrez, 139 F.3d at 446 (relying on evidence that “a
number of persons” had died from the use of a hog-tie restraint).
17
Case: 20-10876 Document: 00516132354 Page: 18 Date Filed: 12/15/2021
No. 20-10876
Lafayette City-Par. Consol. Gov’t, 806 F.3d 268, 275 (5th Cir. 2015) (quoting
Garner, 471 U.S. at 11). Here, the Officers concede that the use of deadly
force was not justified. But the record supports an inference that Dillard
knelt on Timpa’s back with enough force to cause asphyxiation.
Viewing the facts in the light most favorable to the Plaintiffs, the
record supports that Timpa was subdued nine minutes into the continuing
restraint and did not pose a threat of serious harm. The Officers make no
argument that the use of asphyxiating pressure was necessary to maintain
control of a subdued subject. In other words, the record supports the
inference that, for at least five minutes, Timpa was subjected to force
unnecessary to restrain him. If a jury were, in addition, to find that the use
of a prone restraint with bodyweight force on an obese, exhausted individual
in a state of excited delirium carried a substantial risk of causing death or
serious bodily harm, then the prolonged restraint constituted an objectively
unreasonable application of deadly force.
B.
The district court determined that no precedent clearly established
that the use of a prone restraint with bodyweight force to bring a subject
under police control was objectively unreasonable. But the district court
failed to consider the continued use of such force after Timpa had been
restrained and lacked the ability to pose a risk of harm or flight. We hold that
the state of the law in August 2016 clearly established that an officer engages
in an objectively unreasonable application of force by continuing to kneel on
the back of an individual who has been subdued.
Officers are entitled to qualified immunity “unless existing precedent
‘squarely governs’ the specific facts at issue.” Kisela v. Hughes, 138 S. Ct.
1148, 1153 (2018) (per curiam) (quoting Mullenix v. Luna, 577 U.S. 7, 15
(2015) (per curiam)). That does not require a showing that “the very action
18
Case: 20-10876 Document: 00516132354 Page: 19 Date Filed: 12/15/2021
No. 20-10876
in question has previously been held unlawful.” Anderson v. Creighton, 483
U.S. 635, 640 (1987). Rather, there can be “notable factual distinctions
between the precedents relied on . . . so long as the prior decisions gave
reasonable warning that the conduct then at issue violated constitutional
rights.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting United States v.
Lanier, 520 U.S. 259, 269 (1997)).
Within the Fifth Circuit, the law has long been clearly established that
an officer’s continued use of force on a restrained and subdued subject is
objectively unreasonable. See Carroll v. Ellington, 800 F.3d 154, 177 (2015)
(“The law was clearly established at the time of the deputies’ conduct that,
once a suspect has been handcuffed and subdued, and is no longer resisting,
an officer’s subsequent use of force is excessive.” (citing Strain, 513 F.3d at
501–02)). “[A]lthough the right to make an arrest necessarily carries with it
the right to use some degree of physical coercion or threat thereof to effect
it, the permissible degree of force depends on [the Graham factors].” Cooper
v. Brown, 844 F.3d 517, 524–25 (5th Cir. 2016) (quoting Strain, 513 F.3d at
502). And “if enough time elapsed between the [subject’s active resistance]
and the use of force that a reasonable officer would have realized [the subject]
was no longer resisting,” the further use of force is unnecessary and
objectively unreasonable. Curran, 800 F.3d at 661 (quoting Newman v.
Guedry, 703 F.3d 757, 764 (5th Cir. 2012)). Our decisions in Strain, Cooper,
and Darden clearly established the excessiveness of Dillard’s continued use
of force on a restrained and subdued arrestee.
In Bush v. Strain, we held that it was objectively unreasonable for an
officer to force a subject’s face into the window of a vehicle when the subject
“was not resisting arrest or attempting to flee.” 513 F.3d at 502. There, the
defendant-officer attempted to arrest Holly Bush for simple battery. Id. at
496. Partially handcuffed, Bush pulled her right arm away from the
defendant-officer. Id. Bush alleged that, after the defendant-officer
19
Case: 20-10876 Document: 00516132354 Page: 20 Date Filed: 12/15/2021
No. 20-10876
successfully handcuffed her, he “placed his hand behind her neck and head
and forced her face into the rear window of a nearby vehicle.” Id. Bush
suffered severe injuries to her jaw. Id. Because none of the Graham factors
justified the continued use of force, we agreed that it was objectively
unreasonable for the defendant-officer to “forcefully slam [an arrestee’s]
face into a vehicle while she was restrained and subdued.” Id. at 502.
Similarly, in Cooper v. Brown, we relied on the use of force in Strain to
hold “that subjecting a compliant and non-threatening arrestee to a lengthy
dog attack was objectively unreasonable.” 844 F.3d at 525. There, Jacob
Cooper was suspected of driving under the influence and fled the scene on
foot when stopped by an officer. Id. at 521. Another officer pursued Cooper
and ordered his K9 unit to bite Cooper on the calf. Id. Although Cooper
immediately became compliant and subdued, the officer did not order the dog
to release its bite until after the handcuffs were secured—one to two minutes
after the bite began. Id. We explained that it was objectively unreasonable
for the defendant-officer to “continue[] applying force even after
Cooper . . . was on his stomach” and subdued. Id. at 523.
Finally, in Darden v. City of Fort Worth, we relied on the use of force
in Strain and in Cooper to reiterate that, “it [is] clearly established that
violently slamming or striking a suspect who is not actively resisting arrest
constitutes excessive use of force.” 880 F.3d at 733. There, the defendant-
officer punched, kicked, choked, and “forced [Jermaine] Darden—an obese
man—onto his stomach, pushed his face into the floor, and pulled Darden’s
hands behind his back.” Id. At the time that the defendant-officer used the
prone restraint with bodyweight force, Darden was compliant and not
resisting arrest. Id. In addition, the defendant-officer had reason to believe
that he was using asphyxiating force because witnesses at the scene were
yelling that Darden could not breathe. Id. We found that the defendant-
20
Case: 20-10876 Document: 00516132354 Page: 21 Date Filed: 12/15/2021
No. 20-10876
officer’s actions “were plainly in conflict with our case law” prohibiting the
use of force against a subdued subject. Id.
We have reaffirmed again and again that this principle applies with
obvious clarity to a variety of tools of force because the “[l]awfulness of
force . . . does not depend on the precise instrument used to apply it.”
Guedry, 703 F.3d at 763; see, e.g., Bartlett, 981 F.3d at 342 (striking an
unrestrained, subdued subject in the prone position); Ellington, 800 F.3d at
177 (striking a restrained, subdued subject in the prone position); Curran,
800 F.3d at 661 (pressing a restrained, subdued subject against a wall);
Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir. 2013) (tasing a restrained,
subdued subject in the prone position); Guedry, 703 F.3d at 764 (striking and
tasing an unrestrained, subdued subject).
Like the subject in Strain, Timpa was suspected of only a minor
offense. See 513 F.3d at 496. Timpa initially resisted arrest, similar to the
subjects in Strain and in Cooper. See Cooper, 844 F.3d at 522; Strain, 513 F.3d
at 496. Timpa, like the subject in Darden, was obese and forced to lie prone
on his stomach with his hands restrained and bodyweight force applied to his
back. See 880 F.3d at 733. As in Darden, Dillard had reason to believe that
Timpa was struggling to breathe because Timpa told the Officers he took
cocaine, which indicated a significant risk of excited delirium. Id. Most
importantly, like the subjects in Strain, Cooper, and Darden, Timpa was
subdued, unable to flee, and non-threatening during the continued use of
force. See Darden, 880 F.3d at 733; Cooper, 844 F.3d at 523; Strain, 513 F.3d
at 502.
The distinguishing facts between Strain, Cooper, Darden, and this case
sharpen the excessiveness of Dillard’s continued use of force. Unlike the
subjects in Cooper and Darden, who were suspected of serious crimes, Timpa
himself called the police asking for assistance. See Darden, 880 F.3d at 729;
21
Case: 20-10876 Document: 00516132354 Page: 22 Date Filed: 12/15/2021
No. 20-10876
Cooper, 844 F.3d at 522. The officers had no intention of arresting him for
any crime. Whereas the defendant-officers in Strain, Cooper, and Darden
ceased using force shortly after the subject was restrained, Dillard continued
to kneel on Timpa’s back for seven minutes after he was restrained at both
the wrists and the ankles, including five minutes after he ceased moving his
lower legs, and three-and-a-half minutes after he lost consciousness. See
Darden, 880 F.3d at 726; Cooper, 844 F.3d at 521; Strain, 513 F.3d at 496.
Here, the use of force lasted for over fourteen minutes as compared with the
one-to-two minute dog bite in Cooper; the one-to-two minute use of a prone
restraint with weight force in Darden; and the momentary use of force in
Strain. See Cooper, 844 F.3d at 521; Strain, 513 F.3d at 496; Darden v. City of
Fort Worth, No. 4:15-CV-221-A, 2016 WL 4257469, at *5 (N.D. Tex. Aug.
10, 2016). Finally, unlike the use of force in Cooper and in Strain, the use of
a prone restraint with weight force resulted in the subject’s death in Darden
and again here. See Darden, 880 F.3d at 732 n.8. These cases clearly
established the unreasonableness of Dillard’s continued use of bodyweight
force to hold Timpa in the prone restraint position after he was subdued and
restrained.
This conclusion comports with the decisions of our sister circuits that
have considered similar facts. See McCue v. City of Bangor, 838 F.3d 55, 64
(1st Cir. 2016) (holding that “it was clearly established in September 2012
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’” (citation omitted)); Weigel v.
Broad, 544 F.3d 1143, 1155 (10th Cir. 2008) (holding that “the law was clearly
established,” by December 2002, “that applying pressure to [a subject’s]
upper back, once he was handcuffed and his legs restrained, was
constitutionally unreasonable due to the significant risk of positional
asphyxiation associated with such actions”); Abdullahi v. City of Madison, 423
22
Case: 20-10876 Document: 00516132354 Page: 23 Date Filed: 12/15/2021
No. 20-10876
F.3d 763, 764–66 (7th Cir. 2005) (holding that the record supported an
inference of deadly force when an officer restrained a mentally ill individual
in the prone restraint position with bodyweight force for thirty to forty-five
seconds until the individual lost consciousness); Champion v. Outlook
Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004) (holding that the law in
April 2000 clearly established that “putting substantial or significant
pressure on a suspect’s back while that suspect is in a face-down prone
position after being subdued and/or incapacitated constituted excessive
force”); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1061
(9th Cir. 2003) (holding that the continued use of a prone restraint with
weight force “despite [the arrestee’s] repeated cries for air, and despite the
fact that his hands were cuffed behind his back and he was offering no
resistance” constituted excessive force). 7
The Officers argue that the Fifth Circuit “has held that [the use of a]
prone restraint [on] a resisting suspect does not violate the Fourth
Amendment even when pressure is applied to the suspect’s back.” We have
never articulated this per se rule. Nor could we because the Supreme Court
has specifically rejected exactly that rule. See Lombardo, 141 S. Ct. at 2241
(per curiam) (rejecting any per se rule that “the use of a prone restraint—no
matter the kind, intensity, duration, or surrounding circumstances—
is . . . constitutional so long as an individual appears to resist officers’ efforts
to subdue him”). The Officers mischaracterize our caselaw.
In Castillo v. City of Round Rock, an unpublished decision, we stated
that “[r]estraining a person in a prone position is not, in and of itself,
excessive force when the person restrained is resisting arrest.” No. 90-
7
Only the Eighth Circuit has held in the reverse and the Supreme Court recently
vacated that decision on the merits. See Lombardo v. City of St. Louis, 956 F.3d 1009 (8th
Cir. 2020), rev’d, 141 S. Ct. 2239 (2021) (per curiam).
23
Case: 20-10876 Document: 00516132354 Page: 24 Date Filed: 12/15/2021
No. 20-10876
50163, 1999 WL 195292, at *4 (5th Cir. Mar. 15, 1999) (per curiam). But this
statement cannot be unmoored from its factual context. There, Jesus
Castillo, an unrestrained subject holding a beer bottle above his head, had
“fought” and “struggl[ed] vigorously on the ground” against an officer’s
attempts to subdue him, leading “citizen bystanders . . . to aid in th[e] effort”
of restraining him. Id. at *1. During the subsequent tussle, Castillo
“blood[ied] the officer’s nose[] in a manner that a reasonable officer could
perceive as hostile.” Id. at *3. Two officers then held Castillo in the prone
restraint position with bodyweight force on his back for four to six minutes
while restraints were applied. Id. at *1–2. But once Castillo was “handcuffed
and leg-shackled, [and] finally stopped struggling, the officers rolled him
over” into a recovery position. Id. at *2. The officers realized that Castillo
“appeared to be unconscious” and immediately “rushed [him] to the
hospital.” Id. at *2–4.
By contrast, here, Dillard arrived on the scene to observe Timpa
handcuffed on the ground—a factor that he was required to consider when
determining how much force was reasonably necessary to prevent Timpa
evading arrest or posing a threat of harm. See Darden, 880 F.3d at 732.
Whereas we held that the officer in Castillo reasonably perceived the raising
of a beer bottle as threatening, here, Dillard testified that he did not perceive
Timpa was aiming to injure the Officers by kicking his legs. Whereas the
officers placed Castillo in a recovery position as soon as he was restrained and
subdued, Dillard failed to place Timpa in the recovery position for at least
five minutes after he was restrained and subdued. And whereas the officers
sought medical attention as soon as they realized that Castillo was
nonresponsive, Dillard failed to seek medical attention for an additional three
minutes after he recognized that Timpa was unconscious.
The Officers’ citation to Wagner v. Bay City fares no better. See 227
F.3d 316 (5th Cir. 2000). There, Gilbert Gutierrez initiated a violent physical
24
Case: 20-10876 Document: 00516132354 Page: 25 Date Filed: 12/15/2021
No. 20-10876
altercation with the defendant-officers—“swinging his fists[] [and] striking”
them. Id. at 318. The officers responded by using pepper spray and placing
Gutierrez in the prone position with bodyweight force on his back while they
applied handcuffs. Id. at 319. Once restrained, the officers placed Gutierrez
face down in the prone position in the patrol car to be transported to jail. Id.at 323–24. We held that the use of force was reasonable because Gutierrez
had violently continued to resist arrest during the officers’ use of force and
“there were no apparent physical signs that Gutierrez was substantially at
risk” of asphyxiation. Id. at 324.
Wagner did not speak to the use of force at issue here—a prone
restraint with bodyweight force while Timpa was restrained and subdued.
See 227 F.3d at 324. Unlike Gutierrez, Timpa never engaged the Officers in
a violent altercation; rather, he was already handcuffed by the time that
Dillard arrived on the scene. In Wagner, the defendant-officers responded to
Gutierrez’s diminished resistance by removing their bodyweight from his
back. See 227 F.3d at 319. Here, Dillard continued to exert asphyxiating force
by kneeling on Timpa’s upper back long after he had gone limp. And unlike
the absence of physical signs of substantial risk of asphyxiation in Wagner,
Dillard was aware that Timpa was obese and had used cocaine, which
exacerbated the risk of asphyxiation.
Neither Wagner nor Castillo stands for a per se rule that the use of a
prone restraint is objectively reasonable so long as the subject is resisting.
Like any other tool of control, a prone restraint may rise to unconstitutional
force depending on when and how it is used. See Aguirre, 995 F.3d at 411–12,
424 (Jolly, J., concurring), 424 (Higginson, J., concurring) (holding the use
of a maximal prone restraint with bodyweight pressed against a subject’s
torso and legs constituted excessive force in violation of the Fourth
Amendment); Darden, 880 F.3d at 733 (holding it was objectively
unreasonable for an officer to “force[] . . . an obese man . . . onto his
25
Case: 20-10876 Document: 00516132354 Page: 26 Date Filed: 12/15/2021
No. 20-10876
stomach, push[] his face into the floor, and pull[] [his] hands behind his
back” where the arrestee was not “actively resisting” arrest); Simpson v.
Hines, 903 F.2d 400, 403 (5th Cir. 1990) (holding the use of a prone restraint
with bodyweight force pressed on a pre-trial inmate’s back and neck
constituted “grossly disproportionate” force in violation of the Fourteenth
Amendment).
Here, a prone restraint was used in tandem with Dillard’s body weight
for over fourteen minutes. If a jury were to find that Timpa was subdued and
nonthreatening by nine minutes into the restraint, then the continued use of
force for five additional minutes was necessarily excessive. Cf. Aguirre, 995
F.3d at 424 (Jolly, J., concurring) (denying qualified immunity as to the last
two minutes of a maximal prone restraint); Roque v. Harvel, 993 F.3d 325,
335–36 (5th Cir. 2021) (granting qualified immunity for the first shot fired by
an officer, but denying as to the second and third shots fired two and four
seconds later, respectively); Cooper, 844 F.3d at 521 (denying qualified
immunity as to the final one-to-two minutes of a dog bite). We recognize that
our police officers are often asked to make split-second judgments about the
use of force, but the Constitution demands that officers use no more force
than necessary and “hold[s] [them] accountable when they exercise power
irresponsibly.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because the
state of the law in August 2016 had clearly established that the continued use
of force against a restrained and subdued subject violates the Fourth
Amendment, Defendant-Officer Dillard is not entitled to qualified immunity.
IV.
We now consider the bystander liability claims against Officers
Dominguez, Vasquez, Mansell, and Rivera. Within the Fifth Circuit, “[a]n
officer is liable for failure to intervene when that officer: (1) knew a fellow
officer was violating an individual’s constitutional rights, (2) was present at
26
Case: 20-10876 Document: 00516132354 Page: 27 Date Filed: 12/15/2021
No. 20-10876
the scene of the constitutional violation, (3) had a reasonable opportunity to
prevent the harm but nevertheless, (4) chose not to act.” Bartlett, 981 F.3d
at 343. The Plaintiffs again bear the burden to demonstrate that the state of
the law in August 2016 clearly established that “any reasonable officer would
have known that the Constitution required them to intervene” in this
circumstance. Id. at 345.
Plaintiffs contend that Hale v. Townley provided fair notice to
Dominguez, Vasquez, Mansell, and Rivera of their constitutional duty to
intervene. See 45 F.3d 914 (5th Cir. 1995). In Hale, we held that “an officer
who is present at the scene and does not take reasonable measures to protect
a suspect from another officer’s use of excessive force may be liable under
section 1983.” Id. at 919. There, a defendant-officer “stood by and laughed”
while another officer assaulted Billy Hale. Id. at 917. We agreed that liability
under § 1983 attaches when a bystander-officer “had a reasonable
opportunity to realize the excessive nature of the force and to intervene to
stop it.” Id. at 919. The officers had a reasonable opportunity to intervene
because they were “present at the scene” and their laughter supported an
inference of “acquiescence in the alleged use of excessive force.” Id.
We begin with Vasquez and Dominguez. It is undisputed that each
Officer stood mere feet away from Timpa throughout the fourteen-minute
duration of the restraint. Each Officer was trained to “ensure that[,] as soon
as subjects are brought under control, they are placed in an upright
position . . . or on their side.” Both testified that they were aware of the risks
of holding an arrestee in the prone restraint position. The Officers do not
contend that Vasquez or Dominguez lacked reasonable opportunity to
intervene. Indeed, both officers stood by, observed Timpa suddenly lose
consciousness, expressed surprise, and then made jesting comments. That
both officers “stood by and laughed” while Dillard continued to kneel on an
incapacitated arrestee supports an inference of “acquiescence in the alleged
27
Case: 20-10876 Document: 00516132354 Page: 28 Date Filed: 12/15/2021
No. 20-10876
use of force.” Hale, 45 F.3d at 917, 919. Questions of fact preclude summary
judgment as to the bystander liability claims against Vasquez and Dominguez.
We now turn to Supervising Officer Mansell and Rivera. Bystander
liability is available only when an officer is present during an alleged
constitutional violation. See Bartlett, 981 F.3d at 343. The Officers contend
that Mansell and Rivera were absent when Timpa became subdued and thus,
neither officer can be liable for failing to intervene. The record supports that
Rivera left the scene approximately two-and-a-half minutes before Timpa
stopped moving his legs and that he remained absent until after Dillard
released the restraint. Rivera thus lacked a reasonable opportunity to
intervene and is entitled to qualified immunity.
Mansell presents a tougher case. Thirty-four seconds after Timpa
became subdued, he returned to his patrol car “a few feet away” and sat
“with the car door open” while he ran a check on Timpa’s license. He
testified that he did not hear Vasquez and Dominguez mock Timpa for losing
consciousness. But he was observing Timpa for the critical half-minute when
Timpa suddenly lost consciousness. Moreover, the record supports an
inference that Mansell was aware Timpa had become incapacitated. When
Timpa lost consciousness, Dominguez said to Mansell: “So what’s the plan?
You’re [in charge] out here, sir.” Mansell responded that the officers should
“strap [Timpa] to the gurney” and then made jesting comments before
stepping away to check Timpa’s license. A jury could find that Mansell
remained present on the scene and acquiesced in the violation of Timpa’s
Fourth Amendment rights.
Genuine disputes of material fact preclude summary judgment on the
claims of bystander liability against Officers Mansell, Dominguez, and
Vasquez. Summary judgment was properly granted to Officer Rivera.
* * *
28
Case: 20-10876 Document: 00516132354 Page: 29 Date Filed: 12/15/2021
No. 20-10876
We REVERSE the district court’s grant of summary judgment on
the claim of excessive force against Officer Dillard and the claims of
bystander liability against Officers Mansell, Vasquez, and Dominguez.
We AFFIRM the district court’s grant of summary judgment on the
claim of bystander liability against Officer Rivera.
29