Timpa v. Dillard

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

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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-

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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).”

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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.

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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).

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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

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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,

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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.

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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

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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

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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

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(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

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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.”

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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.”

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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

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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–

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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).

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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

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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

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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-

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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;

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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

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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).

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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

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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

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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

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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

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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.

* * *

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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