Petition for Writ of Certiorari — City of Fort Worth, Texas, et al., Petitioners v. Eric C. Darden

NO.

In the Supreme Court of the United States

CITY OF FORT WORTH, TEXAS, W. F. SNOW, AND J. ROMERO,

Petitioners,

v.

ERIC C. DARDEN, as Administrator of the Estate of Jermaine

Darden and on behalf of the statutory beneficiaries of the

Estate of Jermaine Darden (which are Donneika

Goodacre-Darden, surviving mother of Jermaine Darden,

Charles H. Darden, surviving father of Jermaine Darden),

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Gerald Pruitt

Kenneth E. East

Deputy City Attorney

Counsel of Record

Laetitia Coleman Brown

THE LAW OFFICE OF

Sr. Assistant City Attorney KENNETH E. EAST

Office of the City Attorney

9001 Airport Frwy., Ste. 675

City of Fort Worth

North Richland Hills, TX 76180

200 Texas Street

(817) 788-1111

Fort Worth, TX 76102

(817) 485-2836 (fax)

(817) 392-7600

ken@east.law

laetitia.brown@

ken1@airmail.net

fortworthtexas.gov

Counsel for Petitioner, W.F. Snow

Counsel for Petitioner,

City of Fort Worth

D. Lee Thomas, Jr.

507 West Central Avenue

Fort Worth, TX 76164

(817) 625-8866

dlthom31@yahoo.com

Counsel for Petitioner, J. Romero

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

Police served a felony narcotics warrant. Officer

W.F. Snow encountered the primary suspect, Jermaine

Darden, a 340-pound man, apparently robust, but

suffering from extraordinary latent health infirmities,

who had ingested a toxic synthetic cannabinoid. As

seen on video, Darden struggled against efforts to

secure him. Officer J. Romero eventually helped.

Darden then suffered a fatal heart attack (a death the

medical examiner ruled to have been from natural

causes).

1. Did the Fifth Circuit err in reversing the district

court’s grant of qualified immunity to the officers by

basing its analysis only on Darden’s subjective reasons

for resisting?

2. Did the Fifth Circuit err by failing to identify any

appropriate clearly established law, given it effectively

declared a fact issue to exist only as to why (not if)

Darden struggled against the officers, and then defined

clearly established law only by the high-level and

inapplicable proposition that officers cannot use force

against a non-resisting suspect?

ii

PARTIES TO THE PROCEEDING

Petitioners are the City of Fort Worth, Texas, and

two of its police officers in their individual capacities,

W.F. Snow and J. Romero, defendants below.

Respondent is Eric C. Darden, as Administrator of

the Estate of Jermaine Darden and on behalf of the

statutory beneficiaries of the Estate of Jermaine

Darden (Donneika Goodacre-Darden, surviving mother

of Jermaine Darden, and Charles H. Darden, surviving

father of Jermaine Darden), who filed the underlying

action pursuant to 42 U.S.C. § 1983.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF JURISDICTION . . . . . . . . . . . . . 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3

I. Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. The undisputed felony drug warrant . . . . . . . 3

B. The undisputed videos . . . . . . . . . . . . . . . . . . 4

C. Darden refuses commands and resists . . . . . 4

D. After Darden is finally restrained no officer

uses any further force against him, but

Darden suffers a fatal heart attack . . . . . . . 11

E. Plaintiffs’ own witnesses agree Darden

resisted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

II. Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

A. Trial Court . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. Filings leading to this petition . . . . . . . . . . . 17

C. Court of Appeals . . . . . . . . . . . . . . . . . . . . . . 18

iv

1. Original Opinion . . . . . . . . . . . . . . . . . . . 18

2. Substituted Opinion and Denial of

Rehearing . . . . . . . . . . . . . . . . . . . . . . . . 20

REASONS FOR GRANTING THE PETITION . . . 21

I. The Fifth Circuit improperly used 20/20

hindsight to view facts only from the suspect’s

subjective point of view rather than from the

objective perspective of a reasonable

officer, contrary to holdings from this, and other,

Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. Officers had the right to detain and use force

against Darden . . . . . . . . . . . . . . . . . . . . . . . 22

B. The force used was reasonable . . . . . . . . . . . 24

C. On similar facts other courts have found such

force to be reasonable . . . . . . . . . . . . . . . . . . 27

II. The panel committed error by denying qualified

immunity, particularly by failing properly to

define clearly established law . . . . . . . . . . . . . . 33

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

APPENDIX

Appendix A Opinion on Petition for Rehearing in

the United States Court of Appeals for

the Fifth Circuit

(January 24, 2018) . . . . . . . . . . . . App. 1

Appendix B Opinion in the United States Court of

Appeals for the Fifth Circuit

(August 9, 2017) . . . . . . . . . . . . . App. 21

v

Appendix C Memorandum Opinion and Order and

Final Judgment in the United States

District Court for the Northern

District of Texas Fort Worth Division

(August 10, 2016) . . . . . . . . . . . . App. 42

Appendix D Order Denying Petition for Rehearing

and Petition for Rehearing En Banc in

the United States Court of Appeals

for the Fifth Circuit

(February 27, 2018) . . . . . . . . . . App. 59

Appendix E Constitutional and Statutory

Provisions Involved . . . . . . . . . . App. 61

vi

CASES

TABLE OF AUTHORITIES

Arshad ex rel. Arshad v. Congemi,

No. 08-30061, 2009 WL 585633

(5th Cir. Mar. 9, 2009) . . . . . . . . . . . . . . . . . 30, 31

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) . . . . . . . . . . . . . . . . . . . . . . 33

Buehler v. City of Austin/Austin Police Dep’t,

824 F.3d 548 (5th Cir. 2016) . . . . . . . . . . . . . . . 22

Butz v. Economou,

438 U.S. 478 (1978) . . . . . . . . . . . . . . . . . . . . . . . 2

Cadena v. Ray,

No. 16-51349, 2018 WL 1566528

(5th Cir. Mar. 29, 2018) . . . . . . . . . . . . . . . . . . . 30

D.C. v. Wesby,

138 S. Ct. 577 (2018) . . . . . . . . . . . . . . . . . . . . . 27

Elder v. Holloway,

510 U.S. 510 (1994) . . . . . . . . . . . . . . . . . . . . . . . 2

Escarcega v. Jordan,

701 F. App’x 338 (5th Cir. 2017) . . . . . . . . . 31, 32

Graham v. Connor,

490 U.S. 386 (U.S. 1989) . . . . . . . . . . . . 24, 27, 31

Gregory v. County of Maui,

523 F.3d 1103 (9th Cir. 2008) . . . . . 27, 28, 29, 31

Harlow v. Fitzgerald,

457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . . . . . . 33

Hudson v. Michigan,

547 U.S. 586 (2006) . . . . . . . . . . . . . . . . . . . . . . 22

vii

Kentucky v. King,

563 U.S. 452 (2011) . . . . . . . . . . . . . . . . . . . . . . 27

Kisela v. Hughes,

138 S. Ct. 1148 (2018) . . . . . . . . . . . . . . . . . 33, 34

Kisela v. Hughes,

No. 17-467, 2018 WL 1568126

(U.S. Apr. 2, 2018) . . . . . . . . . . . . . . . . . . . . . . . . 2

Los Angeles Cty., California v. Rettele,

550 U.S. 609 (2007) . . . . . . . . . . . . . . . . . . . 23, 24

Michigan v. Summers,

452 U.S. 692 (1981) . . . . . . . . . . . . . . . . . . . 22, 23

Morgan v. Swanson,

659 F.3d 359 (5th Cir. 2011) . . . . . . . . . . . . . . . 20

Muehler v. Mena,

544 U.S. 93 (2005) . . . . . . . . . . . . . . . . . . . . . . . 23

Mullenix v. Luna,

136 S. Ct. 305, 193 L. Ed. 2d 255 (2015) . . . 33, 34

Pena v. City of Rio Grande City,

879 F.3d 613 (5th Cir. 2018) . . . . . . . . . . . . . . . 25

Reichle v. Howards

566 U.S. ––––, 132 S. Ct. 2088, 182 L. Ed. 2d

985 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Richards v. Wisconsin,

520 U.S. 385 (1997) . . . . . . . . . . . . . . . . . . . . . . 22

Richardson v. McKnight,

521 U.S. 399 (1997) . . . . . . . . . . . . . . . . . . . . . . . 2

viii

Richman v. Sheahan,

512 F.3d 876 (7th Cir. 2008) . . . . . . 19, 20, 34, 35

Sam v. Richard,

No. 17-30593, 2018 WL 1751566

(5th Cir. Apr. 12, 2018) . . . . . . . . . . . . . . . . 24, 25

Scott v. Harris,

550 U.S. 372 (2007) . . . . . . . . . . . . . . . . 19, 26, 32

Silverman v. Ballantine,

694 F.2d 1091 (7th Cir. 1982) . . . . . . . . . . . . . . 29

Terry v. Ohio,

392 U.S. 1 (1968) . . . . . . . . . . . . . . . . . . . . . . . . 27

United States v. Cavazos,

288 F.3d 706 (5th Cir. 2002) . . . . . . . . . . . . . . . 23

United States v. Mitchell,

73 Fed. Appx. 670 (5th Cir. 2003) . . . . . . . . . . . 23

Vann v. City of Southaven, Mississippi,

884 F.3d 307 (5th Cir. 2018) . . . . . . . . . . . . . . . 34

Williams v. City of Cleveland, Miss.,

736 F.3d 684 (5th Cir. 2013) . . . . . . . . . . . . . . . 30

Wilson v. Layne,

526 U.S. 603 (1999) . . . . . . . . . . . . . . . . . . . . . . 36

Windham v. Harris Cty., Texas,

875 F.3d 229 (5th Cir. 2017) . . . . . . . . . . . . 29, 30

CONSTITUTION

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . passim

ix

STATUTES

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . 2, 3, 16, 17

1

PETITION FOR WRIT OF CERTIORARI

This case involves the critical public safety issues of

police officers’ use of force and their entitlement to

qualified immunity. The district court granted the

petitioners’ motions for summary judgment, preserving

the officers’ qualified immunity. The court of appeals

reversed, but its opinion ignores repeated mandates of

this Court and conflicts with opinions from other

circuits. Worst of all, the opinion effectively imposes a

new requirement of perfection and omniscience on the

part of police officers, who must risk their lives serving

warrants under chaotic circumstances, somehow to

discern a suspect’s motives and latent health

infirmities before acting. The court acknowledged

Darden’s resistance but questioned only why he was

struggling, ignoring that regardless of his motives, it

reasonably appeared to the officers to be serious

resistance under dangerous circumstances. It viewed

the facts only through the eyes of the suspect rather

than through the eyes of an objective police officer,

holding that despite the suspect’s undeniable actions,

he may not have meant any harm. That simply is not

the proper standard when measuring the

constitutionality of a police officer’s use of force.

The court of appeals compounded its mistake in the

qualified immunity analysis by then saying that if the

suspect had been struggling against the officers for

non-nefarious reasons, a jury may be able to discern his

subjective motives, and if they indeed believe he was

not actually trying to escape or harm officers, then that

means he was not “resisting.” If he was not resisting (in

that incorrect what-was-he-thinking sense), therefore,

the court reasoned, then officers were not allowed to

2

use force. Thus, the clearly established legal principle,

the court concludes, need only be the high-level

pronouncement that police officers cannot use force

against compliant suspects. But “[w]here constitutional

guidelines seem inapplicable or too remote, it does not

suffice for a court simply to state that an officer may

not use unreasonable and excessive force, deny

qualified immunity, and then remit the case for a trial

on the question of reasonableness.” Kisela v. Hughes,

No. 17-467, 2018 WL 1568126, at *3 (U.S. Apr. 2,

2018).

Qualified immunity protects both police officers and

the public alike. It affords public officials protection

“from undue interference with their duties and from

potentially disabling threats of liability.” Elder v.

Holloway, 510 U.S. 510, 514 (1994). At the same time,

it protects “the public from unwarranted timidity on

the part of public officials.” Richardson v. McKnight,

521 U.S. 399 (1997) (quoting Butz v. Economou, 438

U.S. 478 (1978)). This Court should preserve these

officers’ qualified immunity, grant their petition,

reverse the judgment of the court of appeals, and

reinstate the district court’s judgment in favor of all

defendants.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. B) is

reported at 866 F.3d 698. The order withdrawing that

opinion, treating petitioners’ petition for rehearing en

banc as a petition for panel rehearing and denying

same, and the panel’s substitute opinion (Pet. App. A.)

is reported at 880 F.3d 722. The panel’s order denying

petitioners’ second petition for rehearing en banc (Pet.

App. D) is not published. The district court’s

3

memorandum opinion and order granting petitioners’

motions for summary judgment (Pet. App. C) is

unreported but available at 2016 WL 4257469.

STATEMENT OF JURISDICTION

The court of appeals issued its original opinion on

August 9, 2017. On January 24, 2018, the panel

withdrew its original opinion and substituted a new

opinion, treating the petition for rehearing en banc as

a petition for panel rehearing and denying it. The panel

denied a second petition for rehearing on February 27,

2018. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fourth Amendment to the United States

Constitution and 42 U.S.C. § 1983 are included in

Appendix E.

STATEMENT OF THE CASE

I. Facts

A. The undisputed felony drug warrant

On May 16, 2013, a tactical unit of the Fort Worth

Police Department was tasked with serving a courtapproved felony no-knock narcotics warrant. The unit

was informed that the main suspect was a black male

believed to weigh over 300 pounds.

Petitioner, Officer W.F. Snow, was assigned to the

entry team, responsible for entering and securing the

premises and its occupants so they could not escape,

harm officers, or destroy evidence. Officer J. Romero

4

was on a perimeter team, assigned to stay outside,

provide cover, and watch for persons who may flee.

ROA.958.

B. The undisputed videos

Much of what transpired was captured by two

GoPro video cameras (with audio) mounted to the

helmets of entry team members. Various versions of

those videos were submitted to the courts below,

including a compilation video, which includes the

relevant portions from each video, set side-by-side,

synched in time. ROA.955, 956, 1230-35; Snow’s

summary judgment appendix, Tab A.

C. Darden refuses commands and resists

Snow was the first officer to enter the house. Upon

entry, Snow and other officers repeatedly yelled,

“Police! Get down! Get on the ground!” Snow

immediately noticed that, directly in front of the door,

several feet into the first room, was a large black male

fitting the suspect description kneeling on a couch. His

body was facing backward over the couch, and he

appeared to be reaching behind the couch. (Snow is

pictured entering the house.)

5

Snow went directly to the large male, later identified as

Jermaine Darden. Snow repeatedly yelled ‘Get down!

Get on the ground!,’ but Darden did not comply. Other

officers followed Snow into the house. Some continued

straight into the back rooms of the house, and other

officers turned right, into the dining room, where other

persons were present. ROA.959.

As Snow enters the house, there is a fleeting instant

on the video where Darden appears partially to raise

his hands (for one second at most), but as Snow reaches

Darden (despite Snow continually yelling at Darden to

get on the ground), Darden stays on the couch and

appears again to begin reaching behind it. Snow then

tries to grab the non-complying Darden to move him off

the couch. Subjects who are on the ground pose much

less of a threat to police, and Snow had reason to fear

that Darden, due to his position on the couch, may be

reaching behind it for a weapon. When Snow tried to

6

get Darden on the ground, however, all he initially was

able to do was grab Darden’s shirt, which ripped.

ROA.959-960.

Darden then began standing up. Snow holstered his

gun and again tried to move Darden to the ground. The

Court of Appeals notes that part of this exchange is not

captured on video, but even plaintiff’s own witness,

Clifton Crippen, admits Darden stood up (despite many

forceful commands by officers for him to get on the

ground). See, e.g., ROA.1596. Darden was not

complying with officers’ commands to get on the

ground, and officers did not know why he was not

complying or what he may be intending to do. Snow

struggled with Darden for over half a minute trying to

get him on the ground. ROA.960. There is no allegation

of any force being used during the time not captured on

video other than the efforts to wrestle Darden to the

ground.

7

From outside the house, Romero could see Officer

Snow struggling with Darden. Seeing other

officers starting to assist Snow, Officer Romero did not

immediately enter the house. According to Romero,

Darden was resisting the officers’ attempts to get him

on the ground, and once on the ground, Darden was

resisting being handcuffed. ROA.973.

Finally, with the help of other officers, who saw and

heard the struggle, Snow was able to get Darden on the

ground, but as shown on the video and admitted by

plaintiff’s own witnesses, Darden continued to resist

and refuse officers’ commands to stay down, to stop

moving, and to give officers his hands. ROA.960, 1053,

1057, 1067, 1078-79, 1091-92, 1096. Even the Court of

Appeals panel acknowledges as much. App. 24-25

(“Darden . . . appeared to push himself up on his hands.

. . . As Officer Romero tried to pull Darden’s left arm

behind his back, Darden seemed to pull his arm

away.”).

Officer Romero did not enter the residence to

provide assistance until after the struggle on the

ground had already been going on for some time. When

he entered, he saw the intense struggle already in

progress, and he took reasonable steps to help bring it

to an end, including trying to hold down Darden.

As Darden contends, persons can be heard on the

video yelling at times their belief that Darden had

asthma and could not breathe, but even if officers

heard those comments at the time, they were focused

on containing a resisting suspect and could not have

known if such claims were true or if instead, as it

appeared, Darden was struggling to escape, possibly

reach for a weapon, or otherwise harm officers. Or,

8

Darden could have both been struggling to breathe and

also have had nefarious motives. Regardless, by his

actions, Darden was in fact resisting officers’ efforts to

do nothing more than place him in handcuffs. As the

district court stated, “Whether he was resisting arrest

or struggling to breathe, Darden did not allow officers

to handcuff him.” App. 54.

Even after finally being placed in a prone position,

Darden repeatedly pushed himself up, sometimes

vertically onto his knees, as can be seen on the videos.

Finally, after a full 45 seconds, struggling to gain

compliance from Darden (unsuccessfully, even with the

help of several officers), Snow stood up and removed

his TASER X2 electronic control device. After Darden

had again pushed himself up,

Snow announced, “Taser, Taser,” and deployed the first

of the two sets of probes his Taser carried. The

distinctive pop of Snow’s first deployment of the Taser

can clearly be heard at the 02:58 mark on the full

9

GOPRO007 video. The probes hit Darden in his back,

and he briefly went back down. But as soon as the 5second cycle ended, Darden again began raising himself

up to a “push-up” position (03:03 mark on the full

GOPRO007 video).

Officers continued struggling with Darden for another

11 seconds, and one of the officers then told Snow to

deploy his Taser again. Snow’s second and final

deployment of his Taser can be heard at 03:14 on the

full GOPRO007 video when Darden has again raised

himself to a vertical position.

10

Snow deployed his Taser only two times, and each

time the device deployed for exactly five seconds.

ROA.970. Even after the second deployment, Darden

continued to struggle against officers for another 53

seconds until he was finally secured. Assuming Officer

Romero delivered the few strikes alleged (resulting in

no visible marks to Darden, per the autopsy report), his

brief interaction with Darden was only while Darden

was continuing his resistance to the officers’ efforts to

secure him. During the struggle, officers tried

repeatedly to secure Darden and yelled at him to stop

moving and to give up his hands. Yet, as the videos

show, Darden repeatedly pulled away from the officers’

attempts to secure his hands. App. 5 (“As Officer

Romero tried to pull Darden’s left arm behind his back,

Darden seemed to pull his arm away.”); see also 01:31

and 01:40 marks on the GOPRO018 video. The

following images show Darden pulling his hand away

from an officer’s grasp and concealing it under his

body.

11

D. After Darden is finally restrained no officer

uses any further force against him, but

Darden suffers a fatal heart attack

Finally, nearly two minutes after Snow first

encountered Darden and told him to get on the ground,

and after an undeniable, significant struggle, officers

were finally able to get Darden secured, and no officer

thereafter is even accused of using any additional force.

Officers then promptly raised Darden up, seated and

called for an ambulance. Unfortunately, Darden, who

at the time had the synthetic drug XLR-11 in his

system and was suffering from extraordinary latent

health conditions, as agreed by both side’s medical

experts, was later pronounced dead, having apparently,

per the medical examiner’s report but unknown at the

time to officers, suffered a fatal heart attack.

12

At the time of his death, Jermaine Darden weighed

340 pounds and--unknown to anyone, particularly the

police officers--suffered from “hypertensive

atherosclerotic cardiovascular disease with focally

severe coronary atherosclerosis including greater than

90% stenosis of the left anterior descending coronary

artery and concentric left ventricular hypertrophy.” As

the medical examiner who prepared the autopsy report

stated,

In summary, this patient had multiple risk

factors for sudden cardiac death, including

severe coronary stenosis due to atherosclerosis,

hypertrophy of the left side of the heart with

cardiomegaly, obesity, fatty liver and thyroiditis,

as well as use of a potentially cardiotoxic

synthetic cannabinoid drug. The severity of his

cardiac disease alone made him susceptible to

sudden cardiac death at any time, with or

without physical exertion.

ROA.982.1

For all these reasons, the medical examiner ruled

the manner of death to have been “natural.” ROA.981.

Plaintiff’s medical expert disagrees with that

conclusion, instead believing the struggle with officers

to have been enough of a contributing factor to classify

the death technically as a homicide. But even so, even

he describes the events as follows:

1

Darden’s health was so poor, in fact, that according to his

biological mother, he could not lie down even to rest; in order to

sleep, he had to be positioned with his knees on the floor and his

torso leaned against his bed. ROA.1049.

13

Mr. Darden was involved in a struggle with

multiple police officers as they attempted to

place him in a prone position and apply wrist

restraints with his arms behind his back. . . .

During the course of the struggle, one of the

police officers fired 2 darts from their CED

weapon and a second firing of 2 darts shortly

thereafter. Jermaine Darden was restrained . . .

and was placed in a prone position with officers

on top of him as they attempted to band his

wrists together and then successfully applied

two pairs of handcuffs to his wrists which had

been positioned behind his back. After an

approximate 2½ minute struggle, Jermaine

Darden was placed in a sitting position and

balanced in this position by officers. At some

point it was recognized that he was

unresponsive and ultimately emergency

intervention and transport was accomplished.

He was transported and was essentially dead on

arrival.

ROA.1535. As plaintiff’s expert stated, the suspect’s

“unresponsive state was not recognized” by the officers.

ROA.1537.

Darden’s expert concluded that Jermaine Darden

died following the struggle, which he felt led to

consequential hypoxia and increased cardiac

demand in the context of a morbidly obese male

with focal coronary artery disease (stenosis or

narrowing of the left coronary artery, thickening

(hypertrophy) of both the right and left

ventricular walls which can increase the

likelihood of developing an arrhythmia during a

14

struggle. He also had signs of chronic lung

disease (that could include asthma) including

mucus in the lung airways and thickening of the

right ventricle wall. The presence of mucus in

the airways can impede air exchange causing

hypoxia (low oxygen) and increase the risk of

cardiac arrhythmia during exertion such as a

struggle. Thickening of the right ventricle can

also lead to cardiac arrhythmia, especially

during a struggle.

ROA.1538.

At the time of his death, Darden had XLR-11, a

synthetic cannabinoid, in his blood. The drug is

reported to have potentially greater toxicity than THC

and is associated with more troubling effects “including

acute nephrotoxicity, adverse psychoactive responses

including severe anxiety, psychosis and hallucination,

tachycardia or rapid heart rate, myocardial infarction,

respiratory depression, seizures, suicidal ideations and

death.” ROA.981-82.

E. Plaintiffs’ own witnesses agree Darden

resisted

Even Darden’s own biological mother, Donna

Randle, who was in the house at the time, testified that

it would have appeared to officers that Darden was

resisting them. ROA.1053. But she and other witnesses

assume Darden’s apparent resistance was because he

was trying (unknown to officers) to get himself into a

position that made it easier to breathe. Randle

testified:

15

12 Q. (BY MR. EAST) On the date of the

incident in

13 question, is it your position that the police

thought

14 Jermaine was fighting them, but really he

was trying to

15 get into a better position, so he could

breathe easier?

16 A. Yes.

17 Q. And that's what you told police, right?

18 A. Yes.

ROA.1053. She later confirmed her statements:

25 Q. And it was your earlier testimony that

the

1 officers believed he was fighting them, but

in reality,

2 he was trying to get into a more

comfortable position?

3 A. Right.

ROA.1053.2 Likewise, Clifton Crippen testified that

Darden was struggling against officers, trying to get on

2

Rather remarkably in petitioners’ view, even though plaintiff

never lodged any objection to this testimony (neither during the

deposition nor elsewhere), the Court of Appeals panel discounts it,

declaring it to be in response to “both a leading [even though

defense counsel was cross-examining a plainly adverse witness]

and compound question, so it is difficult to determine what Randle

meant.” App. 33-34, n. 7 (retained in subsequent opinion at

App. 14, n.7). But see the panel opinion’s footnote 3 where the

panel does accept witness testimony that “Darden pushed himself

up on his hands because he was trying to get into a position where

he could breathe.” App. 24, n. 3 (retained in subsequent opinion at

App. 4, n. 3).

16

his side. ROA.1065. He agreed Darden was trying to

turn over against efforts of the officers, and he confirms

Darden was big and strong enough to have prevented

even several officers from effectively controlling him.

ROA.1065. Crippen agrees that a Taser was used by

officers because they thought Darden was resisting.

ROA.1067.

Donald Virden testified Darden was repeatedly

raising up as officers were trying to control him.

ROA.1078-79.

Orlando Cook testified that when officers were

trying to handcuff Darden, Darden was pulling away.

ROA.1091-92.

II. Proceedings

A. Trial Court

The current plaintiff-respondent is Eric C. Darden

as Administrator of the Estate of Jermaine Darden.

Prior to Mr. Darden’s substitution into this case as the

nominal, representative plaintiff, a number of

individual plaintiffs, who are apparent surviving family

members and beneficiaries of Jermaine Darden,

deceased, initiated this federal action in the Northern

District of Texas on March 23, 2015. They brought suit

against petitioners pursuant to 42 U.S.C. § 1983,

claiming officers used excessive force in violation of the

Fourth Amendment. They also brought various Texas

state law claims. And they brought a failure to train

claim against the City.

On August 13, 2015, in response to the officers’

motions to dismiss, the district court ordered that

“plaintiff's official capacity claims and state law claims

17

against said defendants [Snow and Romero] be, and are

hereby, dismissed,” and entered final judgment on

those claims. Plaintiff did not appeal that judgment.

On May 11, 2016, plaintiff filed his current, live

pleading, his Third Amended Complaint. By his

current complaint, Darden brings a single substantive

claim against Snow and Romero: “Excessive Force,”

pursuant to 42 U.S.C. § 1983, “in violation of the

Fourth Amendment to the United States Constitution.”

The officers filed answers asserting their entitlement

to qualified immunity.

B. Filings leading to this petition

After approximately one year of active discovery and

litigation in the district court, defendants filed their

respective motions for summary judgment on June 17,

2016. On August 10, 2016, the district court issued its

memorandum opinion and order, granting the motions.

The district court found it to be undisputed, based

largely on the video evidence submitted by both sides,

that Darden put up a significant struggle against the

officers until he was finally restrained. The district

court correctly concluded, “Whether he was resisting

arrest or struggling to breathe, Darden did not allow

officers to handcuff him.” App. 54. The district court

further noted the plaintiff’s failure to present any

clearly established law that would have made the

officers’ actions unlawful under the circumstances.

App. 54 (“Given the state of Darden’s health, plaintiff’s

argument is essentially that defendants should not

have employed regular police procedures in

effectuating his detention. However, he does not cite to

any clearly established law to support this position.”).

18

The Court granted the motions for summary judgment

and entered final judgment, dismissing all claims.

Darden appealed to the United States Court of

Appeals for the Fifth Circuit, which had appellate

jurisdiction pursuant to 28 U.S.C. § 1291.

C. Court of Appeals

1. Original Opinion

In its original opinion, the Fifth Circuit panel

reversed. App. 21. The panel reasoned that because

Darden and other witnesses had reportedly told the

officers during the course of their struggle with Darden

that Darden had asthma and couldn’t breathe, there

was a fact question as to whether or not Darden’s

physical struggle against the officers (as depicted in the

undisputed video evidence) should have really been

considered resistance at all. App. 33 (“A jury could

conclude that all reasonable officers on the scene would

have believed that Darden was merely trying to get

into a position where he could breathe and was not

resisting arrest.”).

Building on that foundation, the panel went on to

opine that “the right at issue was clearly established”

because prior opinions have held “that tasing a suspect

who is ‘not resisting arrest’ constitutes excessive force.”

App. 35. Similarly, the panel noted that the “law is

clear that once the plaintiff stops resisting or is in [the

officer’s] control, the permissible degree of force

lessens.” App. 38. But the panel also referenced a single

out-of-circuit opinion for the more novel but more

tailored proposition that “police officers must exercise

greater caution when arresting obese individuals.”

19

App. 38 (citing Richman v. Sheahan, 512 F.3d 876, 880

(7th Cir. 2008)).

The panel did allow “that a jury may ultimately

conclude that Darden did not comply with the officers’

commands and was actively resisting arrest.” App. 36.

“Under those facts,” the panel conceded, “Officer

Snow’s decisions to force Darden to the ground and tase

him might have been reasonable.” App. 36. The panel

acknowledged this Court’s holding in Scott v. Harris

but did not give credit to the resistance seen on video

as enough to overcome the blanket, conclusory claims

by Darden of no resistance because, the panel said, “the

videos [do not] make clear how Darden transitioned

from kneeling on the couch to lying on the floor.” App.

32. In the panel’s view, the small gap in the video (the

two officers with cameras were not constantly fixing

their gaze, thus their helmet cameras, on the struggle

with Darden as they were dealing with many other

occupants in the house) apparently defeated its ability

to serve as conclusive evidence even as to the

resistance by Darden it plainly shows after the gap.

The panel also held that in its view, certain of

“Officer Romero’s actions were unambiguously in

conflict with the police department’s policy . . . .

Therefore, a jury could find that the force was clearly

excessive and clearly unreasonable.” App. 38.3

3

The policy cited by the panel, section § 314.04(D) of the

department’s General Orders, has to do with how to position an

obese suspect after restraint. Petitioners do not believe it has any

application at all to the use of whatever force may be needed to

bring a resisting, potentially dangerous, suspect into compliance

in the first place. Specifically, the policy cautions against “cuffing

[an obese suspect] behind the back and laying the prisoner in a

20

For those reasons, the panel reversed the district

court’s grant of qualified immunity to the officers and

remanded. Because the district court granted the City’s

motion only in light of its granting the officers’ motions

and never reached the City’s other arguments, the

panel vacated the judgment in favor of the City and

remanded. One panel member issued a separate

statement, “specially concurring” in the judgment but

adding her view that the grant of qualified immunity

“was, at the very least, premature.” App. 41.

2. Substituted Opinion and Denial of

Rehearing

Petitioners filed a petition for rehearing en banc.

The panel treated the petition as a petition for panel

rehearing and denied it. App. 2. At the same time, the

panel withdrew its original opinion and issued a

substitute opinion. App. 2. The result is the same, and

the opinions are largely identical. The two primary

differences are that in its final opinion, the panel

dropped its citation of Richman for the proposition that

“police officers must exercise greater caution when

arresting obese individuals,”4 and it moved its

reference to the police department policy into a footnote

prone position.” App. 37. Here, the suspect was handcuffed behind

his back (using two sets of handcuffs), but he was almost

immediately lifted into an upright, seated position. Regardless, it

is axiomatic that police department policy does not equate to a

constitutional rule, and the panel revised its reliance on the policy

in its substituted opinion. See infra.

4

In their petition for rehearing en banc, petitioners had pointed

out that a single out-of-circuit opinion is “far from” enough to

clearly establish the law in the Fifth Circuit, quoting Morgan v.

Swanson, 659 F.3d 359, 382 (5th Cir. 2011).

21

and clarified that it viewed the policy only as “relevant,

but not dispositive.” App. 17, n. 8. There was also no

separate concurrence to the substitute opinion.

Otherwise, for essentially the same reasons as in its

original opinion, the panel reversed the grant of

qualified immunity to the officers, vacated the

judgment for the City, and remanded to the district

court.

REASONS FOR GRANTING THE PETITION

This Court should issue a writ of certiorari in order

to preserve these officers’ entitlement to qualified

immunity and to ensure the uniform application of

Fourth Amendment principles and qualified immunity

nationwide. Neither this Court (if hearing the original

appeal) nor any other circuit court would have reversed

under these facts and stripped these officers of their

protection from being subjected to personal liability.

I. The Fifth Circuit improperly used 20/20

hindsight to view facts only from the suspect’s

subjective point of view rather than from the

objective perspective of a reasonable officer,

contrary to holdings from this, and other,

Courts

As the district court held, the officers in this case

simply used “regular police procedures in effectuating

[Darden’s] detention.” App. 54. But for the undeniably

tragic fact that Darden suffered a fatal heart attack,

this case surely would not exist. Darden’s struggle

against the officers reasonably and objectively

appeared to be significant resistance. His unknown

subjective motives cannot change that.

22

A. Officers had the right to detain and use

force against Darden

Officers had the right and obligation to serve the

court-approved felony no-knock narcotics warrant. As

the warrant was obtained by the department’s

narcotics division and not by Officers Snow or Romero,

there can be no claim that these officers did anything

wrong by relying on the warrant to effect entry into

Darden’s house, even using the authorized no-knock

dynamic entry techniques. Hudson v. Michigan, 547

U.S. 586, 623 (2006); Buehler v. City of Austin/Austin

Police Dep’t, 824 F.3d 548, 554-56 (5th Cir. 2016). The

reported presence of lookouts across the street from

Darden’s house easily justified the no-knock warrant in

any event. See Richards v. Wisconsin, 520 U.S. 385, 394

(1997). Even the panel in this case acknowledged the

danger the officers faced. App. 10 (“There were

certainly inherent dangers associated with executing a

narcotics warrant, and the officers were aware that

lookouts were positioned in the house across the

street.”); Michigan v. Summers, 452 U.S. 692, 702

(1981) (“[T]he execution of a warrant to search for

narcotics is the kind of transaction that may give rise

to sudden violence or frantic efforts to conceal or

destroy evidence.”).

Once inside the home, the officers unquestionably

had the right to detain the occupants for the safety of

all involved. And particularly when Darden failed to

follow Snow’s initial commands, it was reasonable for

officers to attempt to handcuff him. “[A] warrant to

search for contraband founded on probable cause

implicitly carries with it the limited authority to detain

the occupants of the premises while a proper search is

23

conducted.” United States v. Mitchell, 73 Fed. Appx.

670, 671 (5th Cir. 2003) (citing Summers, 452 U.S. at

705). “During that detention, officers may draw their

weapons, handcuff the occupants.” Id. (citing United

States v. Cavazos, 288 F.3d 706 (5th Cir. 2002)). As this

Court has explained, “[L]aw enforcement interests . . .

provide substantial justification for detaining an

occupant: preventing flight in the event that

incriminating evidence is found; minimizing the risk of

harm to the officers; and facilitating the orderly

completion of the search . . . .” Muehler v. Mena, 544

U.S. 93, 98 (2005). Indeed, “the risk of harm to officers

and occupants is minimized if the officers routinely

exercise unquestioned command of the situation.” Id. at

99.

And especially because Darden was reaching behind

the couch when Snow entered the house, it was welljustified for Snow to fear Darden may be reaching for

a weapon. “In executing a search warrant officers may

take reasonable action to secure the premises and to

ensure their own safety and the efficacy of the search.”

Los Angeles Cty., California v. Rettele, 550 U.S. 609,

614 (2007). In such circumstances, “[b]lankets and

bedding can conceal a weapon.” Id. “The reports are

replete with accounts of suspects sleeping close to

weapons.” Id. (citing cases).

In order to detain Darden (particularly in light of

his refusal to follow initial commands), therefore, it

was lawful for officers to use force to effect the

detention. “Inherent in Summers’ authorization,” this

Court continued, “to detain an occupant of the place to

be searched is the authority to use reasonable force to

24

effectuate the detention.” Id. (citing Graham v. Connor,

490 U.S. 386, 396 (U.S. 1989)).

B. The force used was reasonable

The force the officers used to detain Darden and

finally handcuff him was minimal and proportionate to

the resistance the officers faced. For the panel in this

case to have found otherwise required a tortured

treatment of the undisputed and indisputable facts in

this case, facts captured on video and admitted even by

Darden’s own witnesses.

Initially Darden would not get on the floor, so Snow

tried to wrestle him to the ground. Snow and other

officers eventually got him on the floor, and they tried

merely to get him to stop resisting and surrender his

hands by trying to wrestle him into position and

handcuff him. After repeated attempts to secure him

failed, Officer Snow finally changed tactics and

deployed a single shot from his Taser device. Darden

went back down momentarily, but then he immediately

pushed himself up again. Snow tried once again

deploying his Taser, but Darden continued to resist.

Snow never touched Darden again. He kept his finger

on the trigger of his Taser device but never again

activated it. Finally, the other responding officers,

including Romero, were eventually able to wrestle

Darden’s arms out from under his body and place

handcuffs on him. They promptly then sat him up and

used no additional force.

Yet, remarkably, the panel’s Darden opinions have

come to stand for the proposition in the Fifth Circuit

that force cannot be used against a completely

compliant suspect. See, e.g., Sam v. Richard, No.

25

17-30593, 2018 WL 1751566, at *3 (5th Cir. Apr. 12,

2018); Pena v. City of Rio Grande City, 879 F.3d 613,

619 (5th Cir. 2018). Darden, of course, was anything

but compliant. As even the panel acknowledges, he

continued his physical resistance to being detained

throughout the two and a half minute struggle, until he

was finally handcuffed. App. 13 (“From the video

recordings, it appears that Darden later pushed

himself up on his hands, and eventually onto his knees,

and he seemed to pull his arm away from the officers

when they were trying to handcuff him.”).

In order to find that a fact issue could possibly exist

regarding Darden’s plain resistance, the panel had to

improperly shift the focus from what Darden was

actually doing to what he may have been thinking.

App. 13 (“A jury could conclude that all reasonable

officers on the scene would have believed that Darden

was merely trying to get into a position where he could

breathe and was not resisting arrest.”). Even then, the

panel had to discount clear video evidence and

undisputed witness testimony. The panel cites the

plainly inaccurate blanket claim by unnamed witnesses

that Darden “did not resist arrest.” App. 3. But

obviously Darden did resist in any traditional, objective

sense, and the panel acknowledged as much.

The panel used the video for some purposes, noting,

when Snow entered the house, the fleeting instant

when Darden partially raised his hands. But with

regard to the video’s clear depiction of Darden

continuously resisting officers thereafter, for the

following two and half minutes, the panel found the

video not to be determinative because of a small gap in

the video before Darden was on the floor. But the video

26

does, without question, “blatantly contradict” any claim

that Darden never offered resistance. Scott v. Harris,

550 U.S. 372, 380 (2007). The video, indeed, shows a

long-lasting significant struggle by Darden, ceasing

only when he is finally placed into handcuffs. Plaintiff’s

own expert’s description of the events, quoted above,

recounts Darden’s struggle with officers.

Also, Darden’s own mother and other witnesses

testified that Darden resisted arrest and stated

specifically that it would have appeared to police that

Darden was resisting even if he was merely struggling

to find a more comfortable position. Yet the panel

simply discards that testimony in a most odd footnote.

App. 15, n. 7. The panel declares the unambiguous

testimony of Donna Randle, Darden’s biological

mother, where she twice stated in her deposition (and

once before that in her statement to police shortly after

the incident) that “police thought Jermaine was

fighting them, but really he was trying to get into a

better position, so he could breathe easier” to have been

somehow confusing to the panel. The panel said it was

elicited by a compound and leading question. But

Darden lodged no objection to the question during the

deposition or elsewhere, and the question was asked by

defense counsel while cross-examining an adverse

witness.

Regardless, even ignoring the panel’s questionable

treatment of the evidence, even in the panel’s own

words, there is no dispute that Darden factually,

physically, resisted the officers. See App. 13. The panel

simply makes a legal error by viewing the unique facts

of this case only through the eyes of the suspect,

Jermaine Darden, asking only why he was resisting,

27

instead of objectively through the eyes of a reasonable

officer on the scene. See D.C. v. Wesby, 138 S. Ct. 577,

586 (2018) (noting facts are to be “viewed from the

standpoint of an objectively reasonable police officer”)

(citation omitted); Kentucky v. King, 563 U.S. 452, 464

(2011) (“Our cases have repeatedly rejected” a

subjective approach, asking only whether “the

circumstances, viewed objectively, justify the action.”);

Graham v. Connor, 490 U.S. 386, 397 (U.S. 1989)

(“[T]he question is whether the officers’ actions are

“objectively reasonable” in light of the facts and

circumstances confronting them . . . .”); Terry v. Ohio,

392 U.S. 1, 21–22 (1968) (“[I]t is imperative that the

facts be judged against an objective standard: would

the facts available to the officer at the moment of the

seizure or the search ‘warrant a man of reasonable

caution in the belief’ that the action taken was

appropriate?”).

Only by viewing the facts only through the eyes of

the suspect, the panel was able to conclude that a jury

could find Darden was not resisting officers and that

their use of force, therefore, would be unwarranted. Of

course, when viewed objectively from the perspective of

a reasonable officer, Darden’s continuing resistance

easily justified the measured force officers used to get

him restrained.

C. On similar facts other courts have found

such force to be reasonable

In 2008, the Ninth Circuit evaluated a case with

facts similar to those in this case. Gregory v. County of

Maui, 523 F.3d 1103 (9th Cir. 2008). In Gregory,

officers responded to a trespassing call to find a suspect

holding a pen in a threatening manner. The suspect

28

appeared to have been under the influence of drugs.

Officers initially tried to get the pen from him and

when he refused, they wrestled him to the ground. Id.

at 1105. The officers struggled on the ground with the

suspect. Id. One officer at times had his arm around

the suspect’s neck, trying to control him. Id. The

suspect repeatedly told the officers that he could not

breathe. Id. The officers finally were able to handcuff

him and sat him up. Id. But they soon discovered he

was not breathing. The suspect suffered a heart attack

and died. Id.

As in this case, the suspect’s autopsy revealed that

he had suffered from preexisting severe heart disease.

Id. Also similar to this case, there the medical

examiner opined that the effects of marijuana may also

have contributed to the heart attack. Id. Shortness of

breath is a common condition during a heart attack,

and, the physician continued, the suspect’s claims of

not being able to breathe themselves would have meant

he was breathing during the struggle since he was able

to talk. Id. There, the district court granted summary

judgment to the officers, finding no excessive force. Id.

The Ninth Circuit affirmed.

Accordingly, although the confrontation came to

a tragic end, we must conclude that the officers

did not use excessive force. The severity of

Gregory’s trespass and of the threat he posed

were not overwhelming, but we are satisfied

that the force used by the officers was

proportionate to both. The Fourth Amendment

does not require more.

Id. at 1107. Finally, the court held that even if the

suspect was in a noticeably altered state due to his use

29

of drugs and the officers were able to observe as much,

their escalating use of force in response to his noncompliance and resistance was nonetheless reasonable.

Although no two cases are identical, it is apparent from

its holding in Gregory that the Ninth Circuit would

have affirmed the district court’s summary judgment in

favor of the petitioners in this case.

The Seventh Circuit has held that using force

necessary to bring a 410 pound suspect into compliance

and handcuffing him was reasonable even though the

suspect suffered a heart attack and died following the

struggle. Silverman v. Ballantine, 694 F.2d 1091, 1096

(7th Cir. 1982).

Even other panels of the Fifth Circuit would

apparently have come to a different conclusion. The

Fifth Circuit panel in this case held that the officers

would be responsible for Darden’s death if their force

was excessive, citing the eggshell skull rule. App. 9.

But the eggshell skull rule is a rule only of damages. In

a Fourth Amendment analysis, a bad outcome does not

change the nature of the force used by the officers nor

does it mean that they did not have the right to use the

force under the circumstances they faced. Although

acknowledging the original Darden opinion, a different

Fifth Circuit panel granted officers immunity in

Windham v. Harris Cty., Texas, noting, “Whether a use

of force is reasonable must be judged from the

perspective of a reasonable officer on the scene. It

follows that ‘[w]hat would ordinarily be considered

reasonable force does not become excessive force when

the force aggravates (however severely) a pre-existing

condition the extent of which w[ould have been]

unknown to [a reasonable] officer at the time.’” 875

30

F.3d 229, 242–43 (5th Cir. 2017) (some quotation

marks and citations omitted).

In Williams v. City of Cleveland, Miss., the Fifth

Circuit affirmed qualified immunity for officers who

used a chokehold and repeated Taser strikes against a

suspect who allegedly died from his injuries. 736 F.3d

684 (5th Cir. 2013). The court held that the suspect’s

continued resistance to being handcuffed, including

performing “a push-up with both Goza and Perry on his

back” led to the legal conclusion, despite conflicting

expert testimony, that the force used under the

circumstances was reasonable. Id. at 688.

Just last month, a Fifth Circuit panel in an

unpublished opinion affirmed summary judgment in

favor of police officers under similar facts to those in

this case. Cadena v. Ray, No. 16-51349, 2018 WL

1566528 (5th Cir. Mar. 29, 2018). In Cadena, “four

officers helped ‘take down’ [the suspect], and the video

evidence clearly shows that he nonetheless continued

to resist handcuffing.” Id. at * 3. The officers resorted

to using a Taser, twice, to get him into compliance. Id.

Even though, as here, the video did not completely

record the entire event, the court found it showed the

suspect’s resistance to being handcuffed after being

taken down, justifying the use of additional force,

including with a Taser. Id.

In 2009, a different Fifth Circuit panel, in an

unreported case, affirmed police officers’ qualified

immunity in a case with many similarities to this case.

Arshad ex rel. Arshad v. Congemi, No. 08-30061, 2009

WL 585633, at *1 (5th Cir. Mar. 9, 2009). In that case,

a female physician, Dr. Arshad, was attempting to

render aid to an accident victim. When police arrived

31

they did not know if her intentions were to render aid,

as Dr. Arshad was telling them, or if she was trying to

harm the victim. Id. at *1. When she refused

commands to step away from the victim, officers

grabbed her and overcame her resistance by wrestling

her to the ground and handcuffing her. Id. She soon

thereafter suffered a fatal heart attack. Id. The Fifth

Circuit in that case held that even if it could draw a

causative connection between the force used by officers

and Arshad’s heart attack, “we must focus on the force

Officer Miller actually used, not just the ultimate

consequence . . . .” Id. at *6 (citing Gregory, 523 F.3d

1103). In measuring the officers’ use of force it did not

matter whether or not Arshad’s intentions were to

avoid detention or merely to help the accident victim.

“Under Graham we must consider the fact that Dr.

Arshad was resisting arrest.” Id.

Regarding claims that officers should have behaved

somehow differently because Darden was particularly

obese or claimed not to be able to breathe, there is no

clearly established law to support Darden’s position.

For example, in the recent Fifth Circuit case of

Escarcega v. Jordan, the Court held that the suspect’s

claim of having been in a confused or dazed state

following a car crash was beside the point. 701 F. App’x

338, 342 (5th Cir. 2017). “Our qualified immunity

caselaw does not require officers to conduct a close

examination of a suspect’s demeanor before acting, but

rather recognizes that officers are often forced to make

split-second judgments in reaction to a tense,

uncertain, and rapidly evolving scene. Accordingly, the

factual dispute that Escarcega asserts regarding the

state he was in immediately after the crash is

immaterial and does not preclude summary judgment.”

32

Id. (internal quotation marks and citations omitted). In

Escarcega, officers used kicks and punches to bring the

suspect into compliance when he refused to surrender

his hands. Noting that no force was used after the

suspect was finally handcuffed, the court held, “[U]sing

force, such as punches, to gain control of a

non-complaint suspect is not clearly excessive.” Id. at

342. Also of note in Escarcega, the court found video of

the suspect “struggling and resisting the officers’

efforts to restrain him” to be sufficient to discredit his

global, conclusory claims that he never resisted. Id.

Because the objective facts, knowable to a

reasonable officer on the scene in this case are

undisputed (i.e., they are captured on video and

admitted by even plaintiff’s own witnesses, not to

mention the un-refuted testimony of the several officers

and plaintiff’s own medical expert), whether or not the

officers’ actions were reasonable “is a pure question of

law.” Scott v. Harris, 550 U.S. 372, 381 n. 8 (2007).

Instead of answering that pure question of law based

on the facts before it, the panel sought to delve into the

mind of Darden. The real dispute in this case has

always ever been only whether Darden was undeniably

resisting officers in an effort to escape or harm officers

as it would reasonably have appeared to an objective

officer in that chaotic scene, or if he was struggling

against the officers because, due to his undisputed

extraordinary preexisting health infirmities, any

attempt by officers to control him, even for the few

moments it would have taken to handcuff him had he

not been resisting, made it difficult for him to breathe.

The answer, under the facts of this case, however,

properly should not change the outcome. The officers

33

used only reasonable force and did not violate Darden’s

Fourth Amendment rights.

II. The panel committed error by denying

qualified immunity, particularly by failing

properly to define clearly established law

Qualified immunity shields public officials from

money damages “unless a plaintiff pleads facts showing

(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.

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). For the

reasons discussed above, Darden has failed to meet the

first requirement because he has failed to demonstrate

that the officers in this case used any excessive force in

violation of the Fourth Amendment.

Even if a Fourth Amendment violation were to exist

in this case, Darden has failed to show that petitioners

Snow or Romero acted unreasonably in light of any

clearly established law. “A clearly established right is

one that is ‘sufficiently clear that every reasonable

official would have understood that what he is doing

violates that right.’” Mullenix v. Luna, 136 S. Ct. 305,

308, 193 L. Ed. 2d 255 (2015) (quoting Reichle v.

Howards, 566 U.S. ––––, ––––, 132 S. Ct. 2088, 2093,

182 L. Ed. 2d 985 (2012)). “This inquiry must be

undertaken in light of the specific context of the case,

not as a broad general proposition.” Id. (internal

quotation marks and citation omitted).

In recent years “[t]his Court has repeatedly told

courts . . . not to define clearly established law at a

high level of generality.” Kisela v. Hughes, 138 S. Ct.

34

1148, 1152 (2018) (internal quotation marks and

citation omitted). “[S]pecificity is especially important

in the Fourth Amendment context, where the Court

has recognized that it is sometimes difficult for an

officer to determine how the relevant legal doctrine,

here excessive force, will apply to the factual situation

the officer confronts.” Id. (quoting Mullenix, 136 S. Ct.

at 308). “Where constitutional guidelines seem

inapplicable or too remote, it does not suffice for a court

simply to state that an officer may not use

unreasonable and excessive force, deny qualified

immunity, and then remit the case for a trial on the

question of reasonableness.” Id.

In the district court proceedings in this case,

Darden made no suggestion as to what clearly

established law the court should consider, and the

district court so noted. App. 54.5 On appeal, plaintiff’s

appellate counsel cited a single out-of-circuit case that

under far different facts suggested police should deal

with resisting obese suspects somehow differently than

they deal with resisting non-obese suspects. The panel

originally relied on that factually more specific (but

improper) case. App. 38 (citing Richman v. Sheahan,

512 F.3d 876, 880 (7th Cir. 2008)). But the panel

abandoned its reliance on Richman for that proposition

in response to petitioners’ arguments in their petition

for rehearing, leaving the panel to rely only on

statements of law at the highest possible level of

generality and that do not apply in any event to the

5

Notably, one recent Fifth Circuit opinion has held that that

failure alone should end the inquiry. Vann v. City of Southaven,

Mississippi, 884 F.3d 307, 310 (5th Cir. 2018) (“In the district

court, Plaintiff, Vann’s representative, cited nary a pre-existing or

precedential case. That alone dooms his case here.”).

35

facts of this case, because, as even the panel

acknowledges, Darden did physically resist the officers

until he was finally handcuffed.

As discussed above, the panel reached its conclusion

that Darden could somehow be found not to have

resisted, despite irrefutable evidence to the contrary,

only by reasoning that a jury “could conclude that all

reasonable officers on the scene would have believed

that Darden was merely trying to get into a position

where he could breathe and was not resisting arrest.”

App. 13-14. The only clearly established law it looked

to, therefore, was the general proposition that force

cannot be used on a suspect who is not resisting.

App. 14, 17.

The proper inquiry regarding the clearly established

law issue perhaps would have been to ask if there is

clearly established law that an officer must abandon

efforts to overcome a suspect’s physical resistance (or

otherwise do something differently) if the suspect is

particularly obese, has severe latent health problems,

or so claims to have. The panel actually alluded to such

a formulation in its original opinion when it cited

Richman, stating, “[A] decision by one of our sister

circuits suggests that police officers must exercise

greater caution when arresting obese individuals . . . .”

App. 38. But in response to petitioners’ request for

rehearing, the panel seemed to recognize that the law

in this regard cannot be clearly established by one outof-circuit opinion (particularly one with such

questionable factual applicability).

Because the facts of this case certainly do not

present an obvious claim of unreasonable force and

because the Fifth Circuit panel defined clearly

36

established law at an improperly high level and in a

way that has no bearing to the actual facts in this case,

the court erred.

Although it is not the officers’ burden to

demonstrate that the law was clearly established in

their favor, see the cases cited in the section above,

which have found uses of force under circumstances

similar to those in this case not to have been unlawful.

“If judges thus disagree on a constitutional question, it

is unfair to subject police to money damages for picking

the losing side of the controversy.” Wilson v. Layne, 526

U.S. 603, 618 (1999).

CONCLUSION

If the opinion below stands, it will effectively set a

dangerous new standard: that before acting, officers

must evaluate the resistance they face through the

mind of the suspect. Petitioners Snow and Romero used

only reasonable force against a large suspect,

objectively offering significant resistance in a highly

dangerous environment. They did not violate his

constitutional rights. There is no clearly established

law particular to the facts of this case that would have

put them on notice otherwise, and they are entitled to

qualified immunity as found by the district court. The

City also is entitled to have the judgment in its favor,

which was premised on the officers’ immunity,

reinstated.

The Court should grant the petition and reverse the

judgment of the court of appeals.

37

Respectfully submitted,

Gerald Pruitt

Deputy City Attorney

Laetitia Coleman Brown

Sr. Assistant City Attorney

Office of the City Attorney

City of Fort Worth

200 Texas Street

Fort Worth, TX 76102

(817) 392-7600

laetitia.brown@fortworthtexas.gov

Counsel for Petitioner, City of Fort Worth

Kenneth E. East

Counsel of Record

THE LAW OFFICE OF KENNETH E. EAST

9001 Airport Frwy., Ste. 675

North Richland Hills, TX 76180

(817) 788-1111

(817) 485-2836 (fax)

ken@east.law

ken1@airmail.net

Counsel for Petitioner, W.F. Snow

D. Lee Thomas, Jr.

507 West Central Avenue

Fort Worth, TX 76164

(817) 625-8866

dlthom31@yahoo.com

Counsel for Petitioner, J. Romero

April 23, 2018