Qualified immunity denied when Obese subject with congestive heart failure dies after chase

A. Excessive force

Recovering under an excessive force theory requires that Plaintiffs prove (1) an injury (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable. No one disputes the first element—and for good reason. Ambler, after all, suffered more than injuries; he died as officers tried to arrest and detain him. (Elements 2 and 3 are determined using the Graham factors).

A1. Severity of crime

One Graham factor relevant to the excessive force inquiry considers the severity of the arrestee’s crime. Nissen points to our ruling in Salazar, a case involving a suspect who, like Ambler, led officers on a high-speed chase. The chase in Salazar culminated in the subject stopping and exiting his vehicle, and then lying on the ground, presumably in an act of surrender. Despite the suspect’s submission, however, a sheriff’s deputy immediately tased him. The arrestee later sued, alleging excessive force. We concluded that the arrestee’s claim was meritless, partly because the suspect could have posed a serious safety threat after dangerously evading capture.

Although some of Salazar’s factual details parallel Ambler’s initial evasion, what happened after the pursuit in each case is meaningfully distinct. Of particular note, the officers in Salazar encountered the unrestrained suspect mere seconds after the chase ended. Such a timeframe and scenario are unlike those at issue here: Nissen entered the arrest scene nearly one minute after the chase. On arrival, Nissen witnessed several officers surrounding Ambler’s body with one officer pointing a taser to Ambler’s neck. Distinguishing matters further, Ambler was gasping as he presumably underwent a medical emergency, all the while repeating “I have congestive heart failure,” and “I can’t breathe.”

A2. Immediate threat

The district court believed a separate Graham factor outweighed the severity of Ambler’s initial crime—that is, Ambler’s immediate threat of danger. The court specifically held that the record raised a genuine issue of material fact as to whether a reasonable officer would believe that Ambler was subdued or an immediate threat to safety when Nissen began helping handcuff him. The video footage does not blatantly contradict that holding. A reasonable jury could conclude that Ambler lacked a means to evade custody when Nissen entered the scene. A reasonable jury could therefore conclude that Ambler posed little or no threat to Nissen or others during the arrest. The fact issues identified by the district court in this context were therefore material to Plaintiffs’ Fourth Amendment claim.

A3. Resisting arrest or evading by flight

According to Nissen’s testimony, he was unaware whether Ambler had been compliant before coming to the scene. But Nissen said that, after he arrived, it was clear that Ambler was not complying with commands; he was physically resisting Nissen’s efforts to place his hands behind his back. Plaintiffs view the facts differently. They contend that Ambler was not resisting but instead instinctively putting one arm on the ground to try to breathe. For its part, the district court held that the videos did not provide the clarity necessary to resolve the factual dispute presented by the parties’ conflicting accounts.

None of that means that Nissen acted unreasonably as a matter of law. Perhaps Ambler was indeed refusing to submit to the officers by pulling his body away from the ground, and perhaps Nissen responded in a reasonable manner. But viewing the evidence in Plaintiffs’ favor as we must, however, it is just as believable that their allegations are correct, and Ambler was in a struggle for his life. In either case, such a dispute is reserved for a jury, not summary judgment.

A4. Clearly established (excessive force)

Section 1983 claimants may succeed on these bystander liability claims when the officer (1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act. See Whitley.

When addressing Plaintiffs’ allegations here, the district court identified a genuine dispute of material fact as to whether Nissen failed to reasonably intervene. It  pointed to evidence showing that Nissen heard Ambler say he had congestive heart failure and repeatedly say he could not breathe. Based on Nissen’s proximity and the duration of force, the court concluded that a reasonable jury could find that Nissen had an opportunity to intervene. Nissen disagrees.

As a threshold issue, Nissen stresses that he cannot be liable for the force other officers used outside his presence. As for the force they used after he arrived, Nissen claims it was insignificant. He argues that videos reveal that he saw Ambler tased only once by the deputies—and this occurred as they tried rolling Ambler back onto his stomach after Ambler had effectively resisted all three officers. In Nissen’s telling, it was impossible for him to know how Ambler acted between the time the crash occurred and his arrival on the scene.

While it might be true that Nissen’s actions were reasonable, the video evidence here does not blatantly contradict Plaintiffs’ version of events or the district court’s findings. Plaintiffs allege that Nissen had every reasonable opportunity to mitigate and stop the use of force once he arrived at the active arrest. After all, Plaintiffs note, Nissen had at least two minutes when he was within arm’s reach to realize that Ambler was not resisting and posed no threat. Based on the video footage, Plaintiffs say Nissen was in earshot of Ambler to hear his breathing and pleas for help. Nissen was also present as the deputies tased Ambler at least once.

Given those contradicting facts, the court held that a jury could reasonably determine that Nissen had an opportunity to stop the excessive force but failed to do so. We agree that the factual disputes the district court identified are material. Ambler’s pleas for help, coupled with his arguably obvious medical distress, may have alerted a reasonable officer to intervene in the ordeal to stop the tasing and continued use of force.

B1. Clearly established (failure to intervene)

Turning last to Plaintiffs’ § 1983 bystander claim on QI’s second prong, the district court held that an officer violates clearly established law in excessive force cases if the officer knew a constitutional violation was taking place and had a reasonable opportunity to prevent the harm. See Hamilton. In this context, the district court concluded that tasing someone who is subdued and does not pose a threat can constitute excessive force. See Ramirez.

On appeal, Nissen again points to Ambler’s decision to flee from police by motor vehicle. He contends that no clearly established case put Officer Nissen on notice that the deputies—in subjecting Ambler to a taser and prone restraint after a high-speed chase—violated Ambler’s constitutional rights. But, again, the district court identified a fact dispute about whether Ambler was visibly undergoing a medical emergency when Nissen arrived at the active arrest. It also found a dispute about whether Nissen had time to decide that force was not necessary and try to stop it. If Plaintiffs’ view of the encounter prevails at trial, Nissen had fair notice that participating in another officers’ use of excessive force gives rise to liability. The district court did not legally err in reaching that conclusion.