Facts
In 2016, Anthony Timpa called 911 and stated that he had a history of mental illness, had not taken his medications, was having anxiety, and wanted to be picked up. Sergeant Kevin Mansell arrived on scene and discovered that Timpa had already been handcuffed by private security guards.
Dallas P.D. policy stated that five officers should respond for crisis intervention calls (to safely get the person restrained) and that as soon as they are under control they should be placed in an upright position or on their side as prolonged use of a prone restraint may result in positional asphyxia. It also warned that cessation of struggle could be a serious health issue.
Mansell called for backup and paramedics along with Senior Corporal Raymond Dominguez and Officers Dustin Dillard, Danny Vasquez, and Domingo Rivera arrived. Timpa, who was obese, was agitated and continuing to thrash and yell. Dillard and Vasquez immediately forced Timpa onto his stomach and each pressed a knee on his back.
Vasquez removed his knee after two minutes but Dillard, 190 lbs., kept his knee on Timpa for the entire 14 minutes of Timpa’s restraint. Between the three and seven minutes mark, officers swapped out cuffs and restrained his legs. At the seven minute mark, Timpa was calm enough for paramedics to take vitals and Rivera left to look for Timpa’s car.
At the nine minute mark, paramedics were done and Timpa stopped kicking but he remained vocal. Seconds later, only his head moved slightly and his speech became slurred. For the final three minutes and 30 seconds of being restrained, he was limp and unresponsive.
Dominguez asked Mansell for guidance who told them to strap him on a gurney. Mansell then returned to his police car a few feet away with the car door open to check for warrants. As the officers spoke about Timpa, Dominguez and Vasquez made jokes about his loss of consciousness. After placing him on the gurney, the paramedics determined he was dead.
The medical examiner classified the death as a homicide, noting he died from sudden cardiac arrest due to cocaine and stress associated with physical restraint. The family brought a §1983 excessive force claim against Dillard and also asserted bystander liability against Mansell, Vasquez, Rivera, and Dominguez.
The district court granted summary judgement for everyone stating that there was no clearly established law in 2016 on this topic for police. The 5th circuit affirmed the summary judgement for officer Rivera but denied summary judgement for officers Dillard, Mansell, Vasquez, and Dominguez.
Analysis
A. Constitutional violation – Excessive force
The reasonableness of the use of force turns on the following three factors: (1) the severity of the crime at issue, (2) whether the suspect posed 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.
As to the first factor, the officers concede that Timpa’s criminal liability was “minor”—no more than a traffic violation.
As to the second factor 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 to himself, Timpa had already calmed down sufficiently for the paramedics to take his vitals.
As to the third factor, even if Timpa failed to comply and struggled against the officers at certain points throughout the encounter, that resistance did not justify force indefinitely. Even assuming that Timpa’s flailing amounted to active resistance, the force calculus changed substantially once that resistance ended nine minutes into the restraint.
Viewing the facts in the light most positive to the plaintiffs, none of the factors justified the prolonged use of force. 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—created a substantial risk of death or serious bodily injury.
B. Constitutional violation – Deadly force
The plaintiffs argued that the officers actions also amounted to deadly force, which was unjustified in this case. We look to whether the force used constituted deadly force and then determine whether the subject posed a threat of serious harm justifying the use of deadly force.
The use of a prone restraint with bodyweight force on an individual with three apparent risk factors—obesity, physical exhaustion, and excited delirium— created a substantial risk of death or serious bodily injury.
In Mason, we said that officers can use deadly force only if they have probable cause to believe that the suspect poses a threat of serious physical harm. 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.
C. Clearly established law
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. They primarily cited three prior 5th circuit cases.
In Bush v. Strain, we held that it was objectively unreasonable for an officer to force a subject’s face (being arrested for simple battery) into the window of a vehicle when the subject was not resisting arrest or attempting to flee.
In Cooper v. Brown, we relied on the use of force in Strain to hold that subjecting a compliant and non-threatening arrestee (DUI) to a lengthy dog attack was objectively unreasonable. 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.
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 an obese suspect who is not actively resisting arrest constitutes excessive use of force.
C. Bystander liability
Within the Fifth Circuit, an 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 the scene of the constitutional violation, (3) had a reasonable opportunity to prevent the harm but nevertheless, (4) chose not to act.
We begin with Vasquez and Dominguez. It is undisputed that each of them stood mere feet away from Timpa throughout the 14 minute duration of the restraint. Each was trained about getting a subject off his stomach as soon as it is safe to do so and both testified that they were aware of the risks. There is no contention that Vasquez or Dominguez lacked reasonable opportunity to intervene. Indeed, both stood by, and made jokes about Timpa’s consciousness. Summary judgement was denied for Vasquez and Dominguez.
As to supervising officer Mansell and officer Rivera, bystander liability is available only when an officer is present during an alleged constitutional violation. 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. Thus, Rivera was granted summary judgement.
Mansell presents a tougher case. 34 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 joking comments before stepping away to check Timpa’s license. Summary judgement was denied for Mansell.
Thoughts
1) Courts are going to analyze excessive force differently if the subject is restrained and no longer poses a threat as opposed to the period when you are attempting to restrain him (see below);
2) What is your policy when responding to crisis calls? Do you have a policy about getting people off their stomach when safe to do so?
3) The court made reference to the jokes that were made in this matter. Unprofessionalism will never help your cause.
https://www.ca5.uscourts.gov/opinions/pub/20/20-10876-CV0.pdf