Petition for Writ of Certiorari — Dustin Dillard, et al., Petitioners v. Vicki Timpa, Individually and as Representative of the Estate of Anthony Timpa, et al.
Supreme Court briefApr 27, 2022
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------DUSTIN DILLARD; DANNY VASQUEZ;
RAYMOND DOMINGUEZ; KEVIN MANSELL,
Petitioners,
v.
VICKI TIMPA, individually and as representative
of the Estate of Anthony Timpa; K.T., a minor child;
CHERYLL TIMPA, as next friend of K.T.,
a minor child; JOE TIMPA,
Respondents.
---------------------------------♦--------------------------------On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
---------------------------------♦--------------------------------PETITION FOR WRIT OF CERTIORARI
---------------------------------♦--------------------------------CHRISTOPHER J. CASO
Dallas City Attorney
NICHOLAS D. PALMER
Assistant City Attorney
Counsel of Record
DALLAS CITY ATTORNEY’S OFFICE
1500 Marilla Street, Ste. 7DN
Dallas, Texas 75201
214-670-3519
nicholas.palmer@dallascityhall.com
Counsel for Petitioners
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTIONS PRESENTED
1. Whether the Fifth Circuit misapplied the
Court’s qualified immunity jurisprudence in holding
that a police officer who held a mentally ill subject
down in the prone position for the length of time it took
paramedics to assess and treat the subject violated
the subject’s clearly established Fourth Amendment
rights.
2. Whether the Fifth Circuit erred in holding
that officers who were present while a fellow officer
held a mentally ill subject down in the prone position
had a clearly established constitutional obligation to
intervene and terminate the subject’s restraint such
that they are subject to bystander liability under 42
U.S.C. § 1983.
ii
PARTIES TO THE PROCEEDINGS
The parties to the proceedings before the Fifth Circuit were:
Petitioners
Petitioners are Dustin Dillard, Danny Vasquez,
Raymond Dominguez, and Kevin Mansell. Petitioners
were defendants in the district court and appellees in
the Fifth Circuit.
Respondents
Respondents are Vicki Timpa, individually, and as
representative of the Estate of Anthony Timpa, K.T., a
minor child; Cheryll Timpa, as next friend of K.T., a
minor child, and Joe Timpa. Respondents Vicki Timpa,
K.T., and Cheryll Timpa were plaintiffs in the district
court and appellants in the Fifth Circuit. Respondent
Joe Timpa was an intervenor in the district court and
appellant in the Fifth Circuit.
Other Parties Before the Fifth Circuit
Domingo Rivera was a defendant in the district
court and an appellee before the Fifth Circuit. He is
not a party to this petition for a writ of certiorari.
CORPORATE DISCLOSURE STATEMENT
Pursuant to Rule 29.6, Petitioners state that no
publicly held corporation is involved in this proceeding.
iii
RELATED PROCEEDINGS
This case arises from the following proceedings:
•
Timpa v. Dillard, No. 20-10876 (5th Cir.)
(opinion reversing judgment of district court
in favor of Petitioners, issued on December 15,
2021); and
•
Timpa v. Dillard, No. 3:16-CV-3089-N (memorandum opinion and order granting summary
judgment to Petitioners and Domingo Rivera
on qualified immunity grounds, issued July 6,
2020).
There are no other proceedings in state or federal trial or appellate courts, or in this Court, directly
related to this case within the meaning of Rule
14.1(b)(iii).
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................
i
PARTIES TO THE PROCEEDINGS ...................
ii
CORPORATE DISCLOSURE STATEMENT ......
ii
RELATED PROCEEDINGS ................................
iii
TABLE OF AUTHORITIES .................................
vi
INTRODUCTION ................................................
1
OPINIONS BELOW.............................................
2
JURISDICTION ...................................................
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED...........................................
3
STATEMENT OF THE CASE..............................
3
I.
Factual Background ..................................
3
II.
Procedural Background .............................
9
REASONS FOR GRANTING THE PETITION ... 14
I.
This case is an ideal vehicle for the Court
to answer the exceptionally important
questions it left unaddressed in Lombardo
and for which the conflicting decisions of
the circuit courts fail to provide predictable guidance ............................................... 14
II.
The Fifth Circuit’s decision defies the
Court’s precedents and is plainly wrong
on both the merits and on qualified immunity ....................................................... 20
v
TABLE OF CONTENTS—Continued
Page
III.
This case is an ideal vehicle for the Court
to address a matter of first impression:
whether and under what circumstances
law enforcement officers may be subject to
liability under 42 U.S.C. § 1983 for another officer’s use of excessive force .......... 32
CONCLUSION..................................................... 35
APPENDIX
Appendix A
Opinion, United States Court of Appeals for
the Fifth Circuit, Timpa v. Dillard, No. 2010876 (Dec. 15, 2021) ....................................... App. 1
Appendix B
Final Judgment, United States District Court
for the Northern District of Texas, Timpa v. Dillard, No. 3:16-CV-3089-N (Aug. 19, 2020) ........ App. 37
Appendix C
Memorandum Opinion and Order, United
States District Court for the Northern District of Texas, Timpa v. Dillard, No. 3:16-CV3089-N (June 6, 2020) .................................... App. 39
Appendix D
Order, United States Court of Appeals for the
Fifth Circuit, Timpa v. Dillard, No. 20-10876
(Jan. 27, 2022) ................................................ App. 71
Appendix E
Relevant Constitutional and Statutory Provisions ................................................................ App. 73
vi
TABLE OF AUTHORITIES
Page
CASES
Abdullahi v. City of Madison,
423 F.3d 763 (7th Cir. 2005) .............................. 16, 17
Ashcroft v. al-Kidd,
563 U.S. 731 (2011) .................................................25
Borndstad v. Honey Brook Township,
211 F. App’x 118 (3d Cir. 2007) ...............................16
Brosseau v. Hogan,
543 U.S. 194 (2004) (per curiam) ................ 16, 26, 33
Bush v. Strain,
513 F.3d 492 (5th Cir. 2008) ........................ 13, 26, 27
Byrd v. Brishke,
466 F.2d 6 (7th Cir. 1972) ........................................32
Cady v. Dombrowski,
413 U.S. 433 (1973) .................................................23
Caniglia v. Strom,
141 S. Ct. 1596 (2021) .............................................23
Castillo v. City of Round Rock,
177 F.3d 977, 1999 WL 195292
(5th Cir. Mar. 15, 1999) ................................... passim
Champion v. Outlook Nashville, Inc.,
380 F.3d 893 (6th Cir. 2004) ....................................16
City of Tahlequah v. Bond,
142 S. Ct. 9 (2021) (per curiam) .................. 25, 26, 27
Cook v. Bastin,
590 F. App’x 523 (6th Cir. 2014) ..............................16
vii
TABLE OF AUTHORITIES—Continued
Page
Cooper v. Brown,
844 F.3d 517 (5th Cir. 2016) .............................. 13, 26
Cruz v. City of Laramie,
239 F.3d 1183 (10th Cir. 2001) ................................16
Darden v. City of Fort Worth,
880 F.3d 722 (5th Cir. 2018) .............................. 13, 26
District of Columbia v. Wesby,
138 S. Ct. 577 (2018) ......................................... 13, 25
Drummond ex rel. Drummond v. City of Anaheim,
343 F.3d 1052 (9th Cir. 2003) ............................ 15, 16
Estate of Aguirre v. City of San Antonio,
995 F.3d 395 (5th Cir. 2021) .................. 15, 16, 20, 28
Estate of Phillips v. City of Milwaukee,
123 F.3d 586 (7th Cir 1997) .............................. 16, 29
Flores v. City of Palacios,
381 F.3d 391 (5th Cir. 2004) ....................................21
Gaudreault v. Municipality of Salem,
923 F.2d 203 (1st Cir. 1990) ....................................32
Giannetti v. City of Stillwater,
216 F. App’x 756 (10th Cir. 2007) ............................16
Goode v. Baggett,
811 F. App’x 227 (5th Cir. 2020) ..............................28
Graham v. Connor,
490 U.S. 386 (1989) ..................................... 12, 17, 22
Gutierrez v. City of San Antonio,
139 F.3d 441 (5th Cir. 1998) ............................ passim
viii
TABLE OF AUTHORITIES—Continued
Page
Hale v. Townley,
45 F.3d 914 (5th Cir. 1995) .................... 14, 32, 33, 34
Hanson v. Best,
915 F.3d 543 (8th Cir. 2019) ........................ 16, 18, 24
Hill v. Carroll County,
587 F.3d 230 (5th Cir. 2009) ....................................28
Hutcheson v. Dallas County,
994 F.3d 477 (5th Cir. 2021) ....................................16
Joseph ex rel. Estate of Joseph v. Bartlett,
981 F.3d 319 (5th Cir. 2020) ....................................13
Khan v. Normand,
683 F.3d 192 (5th Cir. 2012) ....................................28
Lombardo v. City of St. Louis,
141 S. Ct. 2239 (2021) (per curiam) .......... 1, 2, 11, 14
Lombardo v. City of St. Louis,
956 F.3d 1009 (8th Cir. 2020) ..................................18
Lombardo v. St. Louis City,
361 F. Supp. 3d 882 (E.D. Mo. 2019) ................. 18, 31
Mason v. Lafayette City-Par. Consol. Gov’t,
806 F.3d 268 (5th Cir. 2015) ....................................20
McCue v. City of Bangor,
838 F.3d 55 (1st Cir. 2016) ......................................16
Messerschmidt v. Millender,
565 U.S. 535 (2012) .................................................24
Morgan v. Swanson,
659 F.3d 359 (5th Cir. 2011) (en banc) ....................11
ix
TABLE OF AUTHORITIES—Continued
Page
Mullenix v. Luna,
577 U.S. 7 (2015) (per curiam) .................... 16, 25, 26
Plumhoff v. Rickard,
572 U.S. 765 (2014) .................................................25
Pratt v. City of Houston,
882 F.3d 174 (5th Cir. 2016) .................. 10, 16, 19, 28
Randall v. Prince George’s County,
302 F.3d 188 (4th Cir. 2002) .............................. 32, 33
Reichle v. Howards,
566 U.S. 658 (2012) ........................................... 13, 25
Rivas-Villegas v. Cortesluna,
142 S. Ct. 4 (2021) (per curiam).......................... 1, 33
Scott v. Harris,
550 U.S. 372 (2007) ........................................... 20, 22
Tennessee v. Garner,
471 U.S. 1 (1985) ............................................... 12, 22
United States v. King,
990 F.2d 1552 (10th Cir. 1993) ................................23
United States v. Rideau,
949 F.2d 718 (5th Cir. 1991) ....................................23
United States v. Rideau,
969 F.2d 1572 (5th Cir. 1992) (en banc) ..................23
Wagner v. Bay City,
227 F.3d 316 (5th Cir. 2000) ............................... passim
Weigel v. Broad,
544 F.3d 1143 (10th Cir. 2008) ................................15
x
TABLE OF AUTHORITIES—Continued
Page
Whitley v. Hannah,
726 F.3d 634 (5th Cir. 2013) ....................................33
Winters v. Adams,
254 F.3d 758 (8th Cir. 2001) ....................................23
STATUTES
28 U.S.C. § 1254 ............................................................2
42 U.S.C. § 1983 .................................................. 3, 9, 32
Tex. Health & Safety Code § 573.001 .................. 23, 24
Tex. Penal Code § 42.03 ..............................................23
Tex. Transp. Code §§ 552.001-.006 .............................23
OTHER AUTHORITIES
Darrell L. Ross & Michael H. Hazlett, A Prospective Analysis of the Outcomes of Violent Prone
Restraint Incidents in Policing, 2 Forensic Research & Criminology Int’l J. 16 (2016)............ 15, 19
1
INTRODUCTION
On May 25, 2020, George Floyd tragically lost his
life when officers with the Minneapolis Police Department restrained him on his stomach while applying
significant force to his neck. Floyd’s death ignited a nationwide debate concerning law enforcement’s use of
prone restraints. See Cert. Pet., in Lombardo v. City of
St. Louis, No. 20-391, at 1 (“Few legal issues have so
quickly captured the attention of so many as the one
presented here”). This ongoing debate is of such importance that this Court granted review in two cases
involving prone restraints last year. See generally RivasVillegas v. Cortesluna, 142 S. Ct. 4 (2021) (per curiam);
Lombardo v. City of St. Louis, 141 S. Ct. 2239 (2021)
(per curiam).
One of those cases, Lombardo, involved facts similar to those at issue here. In Lombardo, a detainee was
restrained on his stomach with his hands cuffed behind his back, his feet shackled together, and the
weight of at least four detention officers upon him for
fifteen minutes. 141 S. Ct. at 2240. The Court summarily reversed the Eighth Circuit’s holding that no constitutional violation occurred, finding that court’s
analysis of the issue too perfunctory and remanding for
a more thorough review. Id. at 2241-42. In doing so, the
Court “express[ed] no view as to whether the officers
used unconstitutionally excessive force or, if they did,
whether [the detainee’s] right to be free of such force
in these circumstances was clearly established at the
time of his death.” Id. at 2242. Three justices dissented,
maintaining that the Court should grant plenary
2
review and decide the constitutional and qualified immunity issues outright instead of returning the matter
to the court of appeals. Id. at 2242-44 (Alito, Thomas,
Gorsuch, JJ., dissenting). Petitioners here ask the
Court to answer the questions it explicitly left for another day in Lombardo. That day is now. The Court
should grant certiorari and, after review of the merits, reverse the Fifth Circuit’s judgment as to Petitioners.
---------------------------------♦---------------------------------
OPINIONS BELOW
The Fifth Circuit’s opinion is reported at 20 F.4th
1020 and reproduced at App.1-36. The district court’s
decision granting summary judgment to Petitioners is
not reported but is reproduced at App.39-70.
---------------------------------♦---------------------------------
JURISDICTION
This Court has jurisdiction under 28 U.S.C.
§ 1254(1). The Fifth Circuit issued its decision on December 15, 2021 (App.1) and denied a timely petition
for rehearing en banc on January 27, 2022 (App.71-72).
---------------------------------♦---------------------------------
3
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The Fourth Amendment to the United States
Constitution and 42 U.S.C. § 1983 are reproduced at
App.73.
---------------------------------♦---------------------------------
STATEMENT OF THE CASE
I.
Factual Background
On the evening of August 10, 2016, the Dallas Police Department (“DPD”) received several 911 calls
concerning Anthony Timpa, who, in a state of paranoia,
was running through and interfering with traffic on
Mockingbird Lane, a major six-lane thoroughfare in
the City of Dallas. (App.2-3, 40.) Timpa himself placed
the first call to 911, stating he was scared and asking
to be picked up. (App.2, 40.) He informed the dispatcher that he was “having a lot of anxiety,” that he
was schizophrenic, and that he had not taken his medication. (App.2, 40.) Timpa abruptly ended the call, and
the 911 operator called him back. (App.2.) Once reconnected, Timpa informed the operator that he was off
Mockingbird Lane. (Id.) The operator could hear cars
honking in the background of the call, and as Timpa
became increasingly agitated he began yelling things
such as “Help!” and “He’s gonna kill me!” (App.2, 40.)
Timpa again abruptly terminated the call.
Meanwhile, a motorist on Mockingbird Lane also
called 911, requesting that police respond because
Timpa was “ ‘running up and down the highway on
4
Mockingbird [Lane,] . . . stopping traffic.’ ” (App.2.) The
motorist stated that she almost struck Timpa (App.40),
and that he was “still running up and down the freeway. Cars are just hitting their breaks to keep from
hitting him” (ROA.1702). She further reported that
Timpa stopped and climbed up a public transit bus.
(App.2, 40.) A security guard also called 911, echoing
the motorist’s report that Timpa was running through
traffic, had stopped and climbed up a bus, and was yelling that someone was trying to kill him. (App.2-3, 40.)
DPD dispatched Petitioners to the scene to respond
to a “CIT” call. (App.3, 41.) CIT (crisis intervention
training) calls involve subjects suspected of experiencing mental health issues. (Id.) Dispatchers informed
Petitioners that Timpa was a “white male with schizophrenia off his medications.” (App.3.) Sergeant Kevin
Mansell was the first to arrive. (App.4.) Mansell immediately requested backup and an ambulance, stating
Timpa was “in traffic . . . and he’s definitely going to be
a danger to himself.” (App.4, 41.) At this point, two private security guards had Timpa in handcuffs in the
grass between the street and the sidewalk. (App.4.)
Though handcuffed, “Timpa was ‘thrashing’ on the
ground, ‘kicking in the air [at] nobody that’s there,’ and
‘hollering, ‘Help me, help me, God help me.’ ’ ” (Id.)
Timpa kept trying to roll into the street and successfully did so at least once, requiring Mansell and the security guards to physically return Timpa to the grass.
(App.4-5, 41.)
Police Officers Dustin Dillard and Danny Vasquez
were the next officers on scene, arriving at the same
5
time as paramedics. (App.5, 42.) Senior Corporal Raymond Dominguez and Police Officer Domingo Rivera
arrived shortly thereafter. (App.5.) Everything that
transpired following Dillard, Vasquez, and Rivera’s arrival was captured on video by bodycams worn by the
three officers. (Id.)
As Dillard and Vasquez approached, Timpa continued to yell things like “Help me!” and “You’re gonna
kill me!” (App.5, 42.) The two officers attempted to calm
Timpa verbally. (App.5.) However, after Timpa once
again rolled toward the street, Dillard and Vasquez
moved in to hold Timpa in place. (Id.) Dillard held
Timpa prone on his stomach, placing one knee on
Timpa’s back and one knee on the ground.1 (App.5, 42.)
Dillard also placed his hands at various places along
Timpa’s shoulders depending on the nature of Timpa’s
resistance in the moment. (Id.) Including the weight
added by his protective vest and duty belt, Dillard
weighed 190 pounds (App.5), which was less than
Timpa, who weighed 223 pounds (ROA.2227). Dillard
ultimately held Timpa in this position for approximately fourteen minutes (App.5), which is how long it
took for Petitioners to subdue Timpa and for paramedics to complete their assessment and treatment.
Throughout his restraint, Timpa yelled and struggled. (App.6, 43-44.) He rocked his body back and forth,
lifted his shoulders, bucked his body, and kicked his
1
Vasquez also briefly placed his knee on Timpa’s back
(App.5, 42), but Vasquez’s use of force in this manner is not at
issue.
6
legs to the point his shorts fell below his buttocks. (See
id.) Timpa continued shouting things such as “I can’t
live,” “Help me,” and “We’re gonna die!” (Id.) Dillard
tried to reassure Timpa, telling him he was “ok,” that
he was “going to be all right,” and that Petitioners were
there to get Timpa help. Suspecting that Timpa was
under the influence of drugs, Dillard repeatedly asked
Timpa what drugs he had taken. (App.5-6, 42.) At one
point, Timpa promised he would cease resisting, exclaiming, “Ok, I stop! I stop, I stop,” but he quickly resumed struggling. (App.43.)
Once Dillard began restraining Timpa in the
prone position, paramedics immediately attempted to
assess his vitals. (App.6, 43.) However, Timpa’s ongoing resistance thwarted the paramedics’ first attempt
to render aid. (App.6, 43.) Petitioners therefore continued to try and restrain Timpa. Vasquez switched out
the security guard’s handcuffs for a pair of DPD-issued
handcuffs “with some difficulty because of Timpa’s continued flailing.” (App.6, 43-44.) Meanwhile, Dominguez
and Rivera placed a pair of zip cuffs on Timpa’s feet
and positioned his feet underneath a bench to stop him
from kicking. (Id.) After securing Timpa’s feet, Rivera
left the scene to locate Timpa’s car. (App.7.) Amid the
fracas, Mansell asked the paramedics if they could administer a sedative. (ROA.1995.) From the time of
Timpa’s initial restraint, it took Petitioners roughly
seven minutes to restrain Timpa’s hands and feet. (See
App.7, 44.)
Paramedic James Flores approached for a second
attempt at treating Timpa. At this juncture—seven
7
minutes into Timpa’s restraint—Dillard sought input
from the paramedics, asking: “Do you want me to roll
him over?” (App.7, 44.) Flores instructed Dillard to
keep Timpa in place: “Before y’all move him, if I can
just get right here and see if I can get to his arm.”
(App.7, 44.) Dillard shifted his knee to Timpa’s shoulder and right arm. (App.44.) Flores placed a blood pressure cuff on Timpa’s left arm and a pulse oximeter on
Timpa’s finger. (Id.) Timpa repeatedly screamed “Help
me!” as Flores assessed Timpa’s vitals. (Id.) Timpa’s
pulse was at 100 beats per minute, and his blood pressure was at 150/90. (Id.) These numbers were within
normal range, and Flores was not “alarmed or alerted”
by them. (App.44-45.) Flores then stepped away to prepare a sedative. (App.45.)
Dillard continued to restrain Timpa as Flores prepared the sedative. Mansell returned to his vehicle to
check whether there were any warrants for Timpa’s arrest and to obtain an emergency contact number.
(App.7.) Dominguez and Vasquez stood near Dillard
and Timpa. A security guard standing nearby commented, “This ain’t just normal crazy man. He’s on
something.” (App.45.) Dillard and Vasquez stated that
they too believed Timpa was under the influence of
drugs. (Id.) Curtis Burnley, the second paramedic on
scene, asked the officers whether they thought Timpa
would be able to walk to the ambulance. (Id.) Dillard
responded, “I highly doubt it.” (Id.) Vasquez remarked
that Timpa was “a kicker” (id.), and Dominguez acknowledged that Timpa had kicked Dominguez “a couple of times” during his struggle (ROA.2001).
8
Timpa eventually quieted. (App.7.) Dominguez
asked, “Tony, are you still with us?” (App.7, 45.) Dillard
confirmed Timpa was still breathing and stated he
believed Timpa had fallen asleep because Timpa was
snoring. (App.8, 45.) Dominguez and Vasquez expressed their surprise that Timpa had suddenly fallen
asleep and made a few comments in jest along the lines
of “Hey, time for school! Wake up!” (Id.)
Around this time, Flores returned and administered the sedative. (Id.) Timpa’s head jerked upon receiving the injection. (Id.) Dillard released Timpa and
stood up promptly upon Flores’s administration of the
sedative. (Id.) In total, it took Flores roughly seven
minutes to check Timpa’s vitals and to prepare and administer the sedative.
When the paramedics loaded Timpa onto the gurney, they discovered he was nonresponsive. (App.8, 46.)
They initiated CPR, but sadly their efforts were unsuccessful, and Timpa perished. (App.46.) The medical examiner conducted an autopsy, which revealed the
presence of cocaine in Timpa’s blood. (App.8.) She determined that the mechanism of death was “excited delirium syndrome,” and that Timpa “died as a result of
sudden cardiac death due to the toxic effects of cocaine
and physiologic stress associated with physical restraint.” (Id.) The medical examiner further concluded
that “due to ‘[Timpa’s] prone position and physical restraint by an officer, an element of mechanical or positional asphyxia cannot be ruled out (although he was
seen to be yelling and fighting for a majority of the restraint).’ ” (App.47.) A forensic pathologist retained as
9
an expert witness by Respondents opined that Timpa
died as a result of mechanical asphyxia. (Id.)
II.
Procedural Background
Respondents sued Petitioners and Rivera under
42 U.S.C. § 1983, alleging, as relevant here, that
Dillard violated Timpa’s Fourth Amendment right to
be free from excessive force and that Mansell, Dominguez, Vasquez, and Rivera were liable as bystanders
who failed to intervene. (App.9.)
1. The district court granted summary judgment
to Petitioners on qualified immunity grounds. (App.5070.) Assuming, without deciding, that Timpa’s restraint offended the Fourth Amendment (App.51), the
district court held Petitioners were entitled to qualified
immunity because “there was no law clearly establishing Defendants’ conduct as a constitutional violation
prior to August 10, 2016.” (App.9, 51.)
The killing of George Floyd occurred just over one
month before the district court’s entry of summary
judgment for Petitioners. Therefore, at the outset of its
decision, the district court noted the ongoing debate
concerning prone restraints precipitated by Floyd’s
death, stating it was “aware that this case touches on
issues that are currently of widespread public concern.
Nonetheless, this Court must decide the issues presented in accordance with the pages of binding precedent from the Supreme Court and Fifth Circuit,
rather than the pages of today’s newspaper.” (App.39
10
n.1.) And that precedent did not clearly establish that
Dillard’s restraint of Timpa violated the Constitution.
The district court first considered whether binding
authority clearly proscribed Dillard’s restraint of
Timpa, focusing its analysis on “the four most analogous Fifth Circuit cases involving prone restraints that
were decided prior to August 2016[.]” (App.52.) Respondents invoked “the fourth and oldest of these
cases, Gutierrez v. City of San Antonio, [139 F.3d 441
(5th Cir. 1998)], to argue that clearly established Fifth
Circuit law prohibit[ed Dillard’s] restraint used on
Timpa.” (App.53.) In Gutierrez, the Fifth Circuit issued
a “very limited” holding that fact issues precluded
summary judgment on qualified immunity grounds
“when a drug-affected person in a state of excited delirium is hog-tied and placed face down in a prone position.” 139 F.3d at 451. Noting that “the Fifth Circuit
explicitly cabined Gutierrez’s holdings to its narrow
facts, both in that case and in subsequent cases”
(App.54), the district court found Gutierrez “inapplicable” (App.53).
The district court then reviewed the three remaining “most analogous Fifth Circuit cases” on prone
restraints. (App.54-56.) Those cases, Pratt v. City of
Houston, 822 F.3d 174 (5th Cir. 2016), Wagner v. Bay
City, 227 F.3d 316 (5th Cir. 2000), and Castillo v. City
of Round Rock, 177 F.3d 977, 1999 WL 195292 (5th Cir.
Mar. 15, 1999), held the restraints at issue presented
no Fourth Amendment violation. (App.54-56.) Concluding that “[o]n balance, the facts of this case align more
closely with those in Pratt, Wagner, and Castillo and
11
differ in critical points from those in Gutierrez”
(App.56.), the district court held Petitioners were
entitled to qualified immunity (App.56-62). In reaching this conclusion the court emphasized that Timpa
was never hog-tied, which was the “primary factor” in
Gutierrez. (App.58.)
Having concluded that no binding authority
clearly proscribed Timpa’s restraint, the district court
turned to whether there was a robust consensus of persuasive authority that did so. (App.62-64.) The court
looked to the Fifth Circuit’s instruction that “law is not
clearly established when ‘no controlling authority specifically prohibits a defendant’s conduct, and when the
federal circuit courts are split on the issue’—even if the
split did not develop until after the conduct occurred.”
(App.62 [quoting Morgan v. Swanson, 659 F.3d 359,
372 (5th Cir. 2011) (en banc)].) In light of the Eighth
Circuit’s decision in Lombardo, the court held that “at
best there is a circuit split on the constitutionality of
prone restraints when employed as [Petitioners] did
here” (App.63-64), such that there was not a robust
consensus of persuasive authority rising to clearly established law.
Finally, because the district court found that there
was no clearly established law rendering Timpa’s restraint unconstitutional, it held Mansell, Dominguez,
and Vasquez could not have had a clearly established
obligation to intervene. (App.67-68.)
2. Respondents appealed, and the Fifth Circuit
reversed as to Petitioners. The Fifth Circuit first
12
addressed the question of whether Timpa’s restraint
offended the Fourth Amendment “to provide clarity
and guidance to law enforcement.” (App.12.) The court
deemed Timpa’s restraint unconstitutional on two
grounds. First, though taking no issue with the first
nine minutes of Timpa’s restraint, the court held that
fact issues existed such that “[a] jury could find that
Timpa was subdued by nine minutes into the restraint,” which rendered the final moments of Timpa’s
restraint unconstitutional under the factors set forth
in Graham v. Connor, 490 U.S. 386 (1989). (App.12-18.)
Alternatively, the Fifth Circuit held there were
fact issues over whether prone restraint constitutes
“deadly force,” which the Fifth Circuit defined as force
that carries “ ‘with it a substantial risk of causing
death or serious bodily harm.’ ” (App.18-22 [quoting
Gutierrez, 139 F.3d at 446].) Reasoning that under
Tennessee v. Garner, 471 U.S. 1 (1985), any force that
satisfies the definition of “deadly force” can only be implemented if the subject posed a threat of serious
harm, the Fifth Circuit held that Timpa’s restraint
would be an unconstitutional application of deadly
force if a jury were to conclude (1) prone restraint constitutes deadly force, and (2) Timpa no longer presented a serious threat of harm following the first nine
minutes of his restraint. (App.22-23.)
As to qualified immunity, the Fifth Circuit held
three of its prior decisions2 clearly established the
2
The Court has yet to decide whether precedents out of
the circuit courts may be relied upon as binding authority for
13
excessiveness of Dillard’s restraint of Timpa: Bush v.
Strain, 513 F.3d 492 (5th Cir. 2008), Cooper v. Brown,
844 F.3d 517 (5th Cir. 2016), and Darden v. City of Fort
Worth, 880 F.3d 722 (5th Cir. 2018). (App.24-28.) The
court found that these cases collectively stood for the
broad proposition that “an officer’s continued use of
force on a restrained and subdued subject is objectively
unreasonable.” (App.24.) From this general premise,
the court announced a new and previously unarticulated rule of law within the Fifth Circuit: that it is
“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.” (App.23.)
Finally, with respect to the bystander liability
claims against Vasquez, Dominguez, Mansell, and Rivera, the Fifth Circuit pointed out its precedents recognized a claim for bystander liability when an officer
“ ‘(1) knew a fellow officer was violating an individual’s
constitutional rights, (2) was present at the scene of
the constitutional violation, (3) had a reasonable opportunity to prevent the harm but nevertheless, (4)
chose not to act.’ ” (App.33-34 [quoting Joseph ex rel.
Estate of Joseph v. Bartlett, 981 F.3d 319, 343 (5th Cir.
2020)].) Because it was undisputed that Rivera was no
longer in the vicinity of Timpa’s restraint during the
portions of the restraint with which the court took issue, the court affirmed the district court’s summary
purposes of qualified immunity. District of Columbia v. Wesby,
138 S. Ct. 577, 591 n.8 (2018) (citing Reichle v. Howards, 566 U.S.
658, 665-66 (2012)).
14
judgment in favor of Rivera. (App.35.) However, the
court reversed as to the bystander liability claims
against Mansell, Vasquez, and Dominguez, because it
was undisputed that Vasquez and Dominguez were
present for the entirety of Timpa’s restraint and the
court found fact issues existed over whether Mansell
was able to witness the full duration of the restraint.
(App.34-36.) The court held that its decision in Hale v.
Townley, 45 F.3d 914 (5th Cir. 1995), provided Vasquez,
Dominguez, and Mansell with fair notice that they had
a duty to intervene such that they were not entitled to
qualified immunity. (Id.)
Petitioners filed a petition for rehearing en banc
on December 29, 2021, which the Fifth Circuit denied
on January 27, 2022. (App.71-72.)
---------------------------------♦---------------------------------
REASONS FOR GRANTING THE PETITION
I.
This case is an ideal vehicle for the Court
to answer the exceptionally important
questions it left unaddressed in Lombardo
and for which the conflicting decisions of
the circuit courts fail to provide predictable guidance.
Although authorities’ use of prone restraints has
recently become a matter of public debate, such restraints have long been a common policing tool. “Placing a combative person in the prone position occurs
numerous times daily throughout the country without
the incident resulting in serious injury to the person,
15
let alone a sudden death.” Darrell L. Ross & Michael
H. Hazlett, A Prospective Analysis of the Outcomes of
Violent Prone Restraint Incidents in Policing, 2 Forensic Research & Criminology Int’l J. 16, 16 (2016), available at https://medcraveonline.com/FRCIJ/FRCIJ-0200040.pdf. Given the frequency of their use, prone restraints result in injury or death on only “statistically
rare” occasions. Id. Though statistically rare, incidents
in which prone restraint results in injury to a person
“appear[ ] with unfortunate frequency in the reported
decisions of the federal courts[.]” Drummond ex rel.
Drummond v. City of Anaheim, 343 F.3d 1052, 1063
(9th Cir. 2003). The Court has yet to opine on the reasonableness of prone restraints under the Fourth
Amendment, and it is critically important that the
Court do so as even a cursory review of cases decided
by the circuit and district courts demonstrates there
are no predictable standards for law enforcement officers to measure whether a court would deem a given
prone restraint reasonable. Indeed, even while denying
Petitioners’ qualified immunity in this matter, the
Fifth Circuit acknowledged that law enforcement requires “clarity and guidance” in this arena. (App.12.)
See Estate of Aguirre v. City of San Antonio, 995 F.3d
395, 424 (5th Cir. 2021) (Higginson, J., concurring)
(“clearly established law” on prone restraints “lacks
clarity in some respects”); Weigel v. Broad, 544 F.3d
1143, 1169, 1176 (10th Cir. 2008) (O’Brien, J., dissenting) (“caselaw from other circuits [is] conflicting” and
provides “no coherent guidance”).
16
As it currently exists, the jurisprudence on prone
restraints out of the circuit courts exemplifies varying
and unpredictable outcomes, resulting in no reliable
direction to officers who must make split-second judgments in the heat of the moment. Compare, e.g., Hutcheson v. Dallas County, 994 F.3d 477 (5th Cir. 2021)
(no constitutional violation), cert. denied, 142 S. Ct. 564
(2021); Pratt, 822 F.3d at 174 (same); Cook v. Bastin,
590 F. App’x 523 (6th Cir. 2014) (same); Borndstad v.
Honey Brook Township, 211 F. App’x 118 (3d Cir. 2007)
(same); Giannetti v. City of Stillwater, 216 F. App’x 756
(10th Cir. 2007) (same); Wagner, 227 F.3d at 316
(same); Castillo, 1999 WL 195292 (same); Estate of
Phillips v. City of Milwaukee, 123 F.3d 586 (7th Cir
1997) (same), with Hanson v. Best, 915 F.3d 543 (8th
Cir. 2019) (qualified immunity applies); Cruz v. City of
Laramie, 239 F.3d 1183 (10th Cir. 2001) (same), and
Aguirre, 995 F.3d at 395 (qualified immunity overcome); McCue v. City of Bangor, 838 F.3d 55 (1st Cir.
2016) (same); Abdullahi v. City of Madison, 423 F.3d
763 (7th Cir. 2005) (same); Champion v. Outlook Nashville, Inc., 380 F.3d 893 (6th Cir. 2004) (same); Drummond, 343 F.3d at 1052 (same); Gutierrez, 139 F.3d at
441 (same).
The disparate outcomes reached in the foregoing
authorities demonstrate that officers’ use of prone restraint is an area in which the “result depends very
much on the facts of each case[,]” Brosseau v. Hogan,
543 U.S. 194, 201 (2004) (per curiam), creating, at best,
a “hazy legal backdrop” for the police and the public at
large to draw upon, Mullenix v. Luna, 577 U.S. 7, 14
17
(2015) (per curiam). This murky legal landscape reveals
myriad factors that may play into the reasonableness
of any given prone restraint, including whether the
suspect (1) resisted, (2) was hog-tied, (3) had weight
applied to him, (4) expressed difficulty breathing or
displayed physical indicia of asphyxia, (5) was under
the influence of drugs or experiencing excited delirium,
and (6) received treatment from paramedics. Courts
must of course consider each of these factors “from the
perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Graham, 490
U.S. at 396. Yet courts differ wildly in their emphasis
as well as their application of certain factors, necessitating clarification from the Court.
For example, the courts are split on how they treat
officers’ perception that a suspect being held in the
prone position is resisting. Here, the Fifth Circuit held
that whether Timpa’s resistance eventually became a
panicked reaction to his alleged inability to breathe
was a question of fact for the jury to decide. (App.1618.) See Abdullahi, 423 F.3d at 771 (“Viewed in this
light, Mohamed’s undisputed attempts to ‘squirm’ or
arch his back upward while he was being restrained
may not constitute resistance at all, but rather a futile
attempt to breathe. . . .”). But this was a stark reversal
from the Fifth Circuit’s previous position, where, mindful that the facts must be viewed from the perspective
of a reasonable officer on the scene, the court recognized: “That [a subject’s] struggle might eventually
have become a panic reaction to his positional asphyxia changes neither its perception to reasonable
18
officers as hostility and resistance to arrest nor the fact
that it clearly began as hostile resistance to lawful and
reasonable demands of the police.” Castillo, 1999 WL
195292, at *3; see Lombardo v. St. Louis City, 361
F. Supp. 3d 882, 897 (E.D. Mo. 2019) (“[T]he Court finds
that it was not established as a matter of law that the
Officers should have interpreted Mr. Gilbert’s actions
of kicking, thrashing, and otherwise fighting as ‘air
hunger’ instead of resistance.”), aff ’d, 956 F.3d 1009
(8th Cir. 2020), rev’d on other grounds, 141 S. Ct. 2239
(2021). (See App.60-61.)
Similarly, the circuits diverge on whether it is reasonable for police to rely on paramedics who assess the
suspect during his restraint. The Eighth Circuit has
recognized that it is reasonable for officers not to conclude that a suspect they held prone and hog-tied for
an extended period was experiencing excited delirium
when paramedics were on scene and had performed a
medical assessment. Hanson, 915 F.3d at 549. Yet here,
the Fifth Circuit held the paramedics’ presence, assessment of Timpa, and instruction to Dillard did not
factor into the “calculus of objective unreasonableness”
at all. (App.17 n.5.) Not only does the Fifth Circuit’s
conclusion conflict with that of the Eighth Circuit in
Hanson, but it also ignores the central role paramedics
played in Timpa’s restraint.
Petitioners seized Timpa to get him medical treatment. The paramedics’ initial attempt at treating
Timpa was frustrated by Timpa’s resistance. (App.6,
43.) After Timpa’s feet were restrained, Dillard specifically asked the paramedics if he should roll Timpa
19
over, and they instructed Dillard to hold Timpa in
place. (App.7, 44.) Dillard knew the paramedics were
going to administer a sedative because he heard Mansell ask them to do so. (ROA.1995.) When paramedics
assessed Timpa’s vitals, which occurred between seven
and nine minutes into Timpa’s restraint, Timpa’s vitals
were within normal rage. (App.44.) Even Respondents’
expert pathologist testified that Timpa’s vitals did
not signal he was in medical distress. (ROA.2577:48.) And given Timpa’s demonstrated “ ‘on again, off
again’ commitment to cease resisting,” Pratt, 822 F.3d
at 184, it was reasonable for Dillard to maintain his
hold on Timpa until the paramedics prepared and administered the sedative. Respondents’ own use of force
expert conceded as much, when upon being asked
whether it was reasonable for a police officer to hold a
subject still as paramedics gave an injection, he testified: “I think a reasonable officer on the scene faced
with that predicament would defer to the direction of
paramedics on the scene, what they would prefer, or
how they would prefer the officers proceed so . . . they
can do their job.” (ROA.2906:12-20.)
Simply put, law enforcement routinely uses prone
restraint as a means of bringing subjects under control. Ross & Hazlett, at 16. Although instances of injury
associated with prone restraint are statistically rare,
id., recent tragic events have placed a spotlight on this
method of restraint. Twenty-one states joining as amici
to urge the Court’s review in a similar case put it best:
“Circuits are in disarray over whether and to what extent police control techniques resulting in positional
20
asphyxia violate clearly established Fourth Amendment rights.” Amicus Br. of Indiana, et al., in Broad v.
Weigel, No. 08-1128, at 3-4. Such disarray warrants the
Court’s attention on this matter of preeminent public
concern.
II.
The Fifth Circuit’s decision defies the
Court’s precedents and is plainly wrong on
both the merits and on qualified immunity.
1. The Fifth Circuit held that Timpa’s restraint
was unconstitutional as both an unreasonable use of
deadly force and, alternatively, excessive force. Neither
finding comports with this Court’s decisions.
The Fifth Circuit’s finding that Timpa’s restraint
was unreasonable under Garner directly conflicts with
the Court’s decision in Scott v. Harris, 550 U.S. 372
(2007). The Fifth Circuit treats “[c]laims that law enforcement used deadly force . . . ‘as a special subset of
excessive force claims.’ ” (App.12 [quoting Aguirre, 995
F.3d at 412].) It defines “deadly force” as any force that
“ ‘carr[ies] with it a substantial risk of causing death or
serious bodily harm.’ ” (App.19 [quoting Gutierrez, 139
F.3d at 446].) Relying on Garner, the Fifth Circuit
deems any mechanism of force falling within its definition of deadly force as unreasonable per se unless there
is “ ‘probable cause to believe that the suspect poses a
threat of serious physical harm.’ ” (App.22 [quoting
Mason v. Lafayette City-Par. Consol. Gov’t, 806 F.3d
268, 275 (5th Cir. 2015)].) Because the Fifth Circuit
treats the question of whether a specific mechanism of
21
force meets the definition of “deadly force” as a question of fact, (App.19 [quoting Flores v. City of Palacios,
381 F.3d 391, 399 (5th Cir. 2004)]), this means that any
time a claimant comes forward with any evidence to
show that a mechanism of force may cause death or
serious injury, the Fifth Circuit deems that force
deadly force tantamount to shooting the suspect. Here,
relying in large part on a Department of Justice bulletin not contained in the record on appeal (App.16 n.3,
19-20), the Fifth Circuit found fact issues existed over
whether prone restraint combined with weight on a
subject is deadly force and that, under Garner, Dillard
violated the Fourth Amendment if a jury determines
that Timpa was no longer a threat to Petitioners or motorists on Mockingbird Lane in the final moments of
his restraint (App.19-23).
The Fifth Circuit’s continued treatment of Garner
as creating a special subset of deadly force cases runs
afoul of this Court’s precedent:
Garner did not establish a magical on/off
switch that triggers rigid preconditions whenever an officer’s actions constitute “deadly
force.” Garner was simply an application of
the Fourth Amendment’s “reasonableness test”
. . . to the use of a particular type of force in
a particular situation. . . . Whatever Garner
said about the factors that might have justified shooting the suspect in that case, such
“preconditions” have scant applicability to
this case, which has vastly different facts. . . .
Whether or not [petitioner’s] actions constituted application of “deadly force,” all that
22
matters is whether [petitioner’s] actions were
reasonable.
Scott, 550 U.S. at 382-83 (citations omitted). As Scott
states, the ultimate question under the Fourth Amendment is that of reasonableness, which is “ ‘not capable
of precise definition or mechanical application’ . . .
[and] requires careful attention to the facts and circumstances of each particular case.” Graham, 490 U.S.
at 396 (citation omitted). The Fifth Circuit’s mechanical
application of the Garner rule in the different circumstances present here directly violates Scott. Accordingly, this case warrants review to enforce the Court’s
holding in Scott.
The Fifth Circuit likewise erred in alternatively
holding that Timpa’s restraint was excessive force under Graham. “Determining whether the force used to
effect a particular seizure is ‘reasonable’ under the
Fourth Amendment requires a careful balancing of ‘ “the
nature and quality of the intrusion on the individual’s
Fourth Amendment interests” against the countervailing governmental interests at stake.’ ” Graham, 490
U.S. at 396 (quoting Garner, 471 U.S. at 8). This determination requires careful regard for all circumstances,
including, but not limited to, “the severity of the crime
at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and
whether he is actively resisting arrest.” Id. (citing Garner, 471 U.S. at 8-9). The Fifth Circuit found the first
Graham factor militated against the use of any force
because Petitioners seized Timpa to get him medical
assistance and not for any criminal investigatory
23
reason. (App.12-13.) But this finding took an overly
narrow view of Petitioners’ justification for seizing
Timpa.
Police are frequently called upon to assist individuals suffering from mental illness even when such individuals are not suspected of criminal wrongdoing.
Timpa’s interference with traffic on Mockingbird Lane
undoubtedly amounted to minor criminal infractions, see Tex. Penal Code § 42.03; Tex. Transp. Code
§§ 552.001-.006, but Petitioners were there not to arrest Timpa for any crime but to seize him as part of
their community caretaking function, see Tex. Health
& Safety Code § 573.001. The Court has long recognized that, in addition to enforcing criminal laws, police perform community caretaking functions. Caniglia
v. Strom, 141 S. Ct. 1596, 1598 (2021) (citing Cady v.
Dombrowski, 413 U.S. 433 (1973)). Although the Court
has only addressed the reasonableness of searches conducted pursuant to authorities’ role as community
caretakers, see generally id., the circuit courts have
recognized that seizures will occur in the police’s capacity as community caretakers and that reasonable
force may be used to effect such seizures. Winters v. Adams, 254 F.3d 758, 762-64 (8th Cir. 2001) (citing United
States v. King, 990 F.2d 1552, 1560-61 (10th Cir. 1993);
United States v. Rideau, 949 F.2d 718, 720 (5th Cir.
1991), rev’d on other grounds, 969 F.2d 1572 (5th Cir.
1992) (en banc)). Indeed, Texas law explicitly authorizes the seizure of individuals who, because of their
“mental illness,” present “a substantial risk of serious
harm to [themselves] or to others unless [they are]
24
immediately restrained.” Tex. Health & Safety Code
§ 573.001.
Timpa’s persistent attempts to reenter the street
even after being handcuffed as well as his refusal to
engage with Petitioners verbally necessitated his
physical restraint. The duration of Timpa’s restraint
cannot be divorced from the purpose for which he was
restrained, namely, to get him medical attention. It
was Timpa’s resistance that thwarted paramedics’ initial attempt to assess him and render aid, and Dillard
only continued holding Timpa prone after his legs had
been restrained because at that time—seven minutes
into the restraint (a point when even the Fifth Circuit
found Timpa still to be resisting)—paramedics asked
Dillard to keep Timpa in place. Once paramedics began
actively assessing and treating Timpa, it was reasonable for Dillard to hold him in place at their request and
to believe they would alert him should Timpa display
any signs of medical distress. See Hanson, 915 F.3d at
549.
2. Even assuming, without conceding, that the
final moments of Timpa’s restraint offended the
Fourth Amendment as the Fifth Circuit held, Dillard
is entitled to qualified immunity, as it was not clearly
established that Dillard’s restraint of Timpa was unconstitutional as of August 2016. Time and again, the
Court has stressed that qualified immunity “ ‘gives
government officials breathing room to make reasonable but mistaken judgments,’ and ‘protects all but the
plainly incompetent or those who knowingly violate
the law.’ ” Messerschmidt v. Millender, 565 U.S. 535, 546
25
(2012) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011)). Qualified immunity requires that a party seeking damages demonstrate that the right he claims to
have been violated be one that “ ‘is sufficiently clear
that every reasonable official would have understood
that what he is doing violates that right.’ ” Mullenix,
577 U.S. at 11 (quoting Reichle, 566 U.S. at 664). In
other words, “existing precedent must have placed
the statutory or constitutional question beyond debate.” Id. at 12 (quoting al-Kidd, 563 U.S. at 741).
“ ‘[D]efin[ing] clearly established law at a high level of
generality’ . . . avoids the crucial question whether the
official acted reasonably under the circumstances he or
she faced.” Plumhoff v. Rickard, 572 U.S. 765, 779
(2014) (quoting al-Kidd, 563 U.S. at 742). Thus, the
Court has “repeatedly told courts not to define clearly
established law at too high a level of generality.” City
of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021) (per curiam). “It is not enough that a rule be suggested by
then-existing precedent; the ‘rule’s contours must be so
well defined that it is “clear to a reasonable officer that
his conduct was unlawful in the situation he confronted.” ’ ” Id. (quoting Wesby, 138 S. Ct. at 590).
To overcome qualified immunity, the plaintiff must
identify “controlling authority” or “a robust ‘consensus
of cases of persuasive authority’ ” holding the specific
conduct in question unlawful. Wesby, 138 S. Ct. at 58990 (quoting al-Kidd, 563 U.S. at 741-42). Such authority must provide a high degree of specificity, and factual specificity is “ ‘especially important in the Fourth
Amendment context,’ where it is ‘sometimes difficult
26
for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.’ ” Bond, 142 S. Ct. at 11-12
(quoting Mullenix, 577 U.S. at 12).
The Fifth Circuit found that its own precedents3—
specifically, Bush, Cooper, and Darden—were sufficient
to clearly proscribe Timpa’s restraint. (App.23-33.) Under this Court’s precedents, these decisions plainly fail
to have put Dillard on fair warning that his restraint
of Timpa violated the Fourth Amendment.
As a threshold matter, neither Cooper nor Darden
can overcome Dillard’s qualified immunity because
they were decided in December 2016 and January
2018, respectively, Darden, 880 F.3d at 722; Cooper,
844 F.3d at 517, well after the events occurring on August 10, 2016, that are at issue here. “Because the focus
is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against
the backdrop of the law at the time of the conduct.”
Brosseau, 543 U.S. at 198 (emphasis added). As
Timpa’s restraint predated Cooper and Darden, they
are inapplicable to the qualified immunity inquiry in
this case, and the Fifth Circuit erred in invoking them.
3
The Fifth Circuit hinged its qualified immunity finding exclusively upon its precedents and did not deem Timpa’s restraint
clearly unconstitutional based upon a clear consensus of persuasive authority. No such consensus exists, as demonstrated in section I, supra. Petitioners reserve the right to address the lack of
consensus amongst the nonbinding authorities in its merits brief,
should the Court request one.
27
That leaves Bush. In that case, the Fifth Circuit
held that a police officer who violently slammed a
handcuffed and compliant suspect’s face into the window of a car resulting in injuries to her jaw and broken
teeth clearly used excessive force. Bush, 513 F.3d at
495-96, 502. Dillard never slammed, punched, or otherwise struck Timpa. “Suffice it to say, a reasonable officer could miss the connection between that case and
this one.” Bond, 142 S. Ct. at 12.
Further, that the Fifth Circuit’s reliance upon
the factually distinguishable Bush was misplaced is
glaringly apparent when one considers that court’s
preexisting precedents specifically concerning prone
restraints. The Fifth Circuit all but ignored these decisions. In contrast, the district court appropriately
hinged its finding that Dillard was entitled to qualified
immunity upon this more applicable body of law.
Prior to August 2016, the Fifth Circuit had held a
subject’s prone restraint clearly violated the Fourth
Amendment only once. Gutierrez, 139 F.3d at 441. In
Gutierrez, the court issued a “very limited” holding,
recognizing that fact issues precluded summary judgment on qualified immunity grounds when (1) a drugaffected suspect experiencing excited delirium is (2)
hog-tied and (3) restrained in the prone position. 139
F.3d at 451. To date, the Fifth Circuit has never found
that Gutierrez applied such that other prone restraints
were clearly unconstitutional unless the restraint satisfied all three elements of Gutierrez’s holding. Indeed,
the Fifth Circuit has repeatedly emphasized the “very
limited” nature of Gutierrez’s reach, frequently holding
28
there was no constitutional violation—let alone a
clearly established one—in factual situations where officers employed prone restraints that did not meet all
three elements of Gutierrez’s limited holding. See
Pratt, 822 F.3d at 174 (no officer awareness that suspect was under the influence drugs or alcohol); Khan v.
Normand, 683 F.3d 192 (5th Cir. 2012) (no officer
awareness that subject was under the influence of
methamphetamine); Hill v. Carroll County, 587 F.3d
230 (5th Cir. 2009) (no drugs); Wagner, 227 F.3d 316
(suspect not hog-tied and no drugs); Castillo, 1999 WL
195292 (suspect not hog-tied); contra Aguirre, 995 F.3d
at 395; Goode v. Baggett, 811 F. App’x 227 (5th Cir.
2020). Tellingly, although Respondents relied upon
Gutierrez for their argument that Dillard is not entitled to qualified immunity in both the district court
and the court of appeals, the Fifth Circuit did not find
that Gutierrez overcame Dillard’s qualified immunity.
(App.23-33.)
Following Gutierrez, the Fifth Circuit twice held
that officers that did not hog-tie but restrained suspects in the prone position did not violate the suspect’s
Fourth Amendment rights, even when the officers applied pressure upon the suspect’s neck or back. Wagner, 227 F.3d at 319-24; Castillo, 1999 WL 195292, at
*1-2.
First, in Castillo, officers encountered a subject,
Castillo, who, like Timpa, had a history of mental illness and was interfering with traffic. 1999 WL 195292,
at *1. Officers Kincaide and Ledesma responded to
the call. Id. Upon their arrival, Kincaide “attacked”
29
Castillo, resulting in a struggle on the ground. Id.
What happened next is much like the facts at issue
here:
Officer Ledesma arrived and assisted Officer
Kincaide, together with citizen bystanders, in
restraining Castillo in the prone position on
the ground, eventually handcuffing his hands
behind his back. Corporal Jacobs arrived after
Castillo was handcuffed but while he was still
kicking and yelling. Officer Kincaide and a
male bystander climbed atop Castillo as the
three officers put flex cuffs on Castillo’s legs.
All told, Officer Kincaide and the Good Samaritan remained on Castillo’s back for four
to six minutes. During the struggle, Officer
Kincaide shoved his knee in the back of Castillo’s neck and kept it there for some five to
ten minutes. At one point, Castillo exclaimed
in Spanish that he was going to die.
Id. Castillo died upon suffering a “cardiorespiratory arrest during the positional asphyxia that resulted from
being laid on the ground, handcuffed and in the prone
position, for four to six minutes with the weight of two
adult males on his back.” Id. at *2. Confronted with
these facts, the Fifth Circuit, held there was no constitutional violation because “ ‘[r]estraining a person in
the prone position is not, in and of itself, excessive force
when the person restrained is resisting arrest.’ ” Id. at
*3 (quoting Phillips, 123 F.3d at 593).
The Fifth Circuit again found no constitutional violation where officers restrained an arrestee in the
prone position and applied significant force to his neck
30
in Wagner, 227 F.3d at 316. There, officers confronted a
man trying to steal food from a fast-food restaurant,
when the man initiated a physical altercation. Id. at
318. Two officers dragged the man outside, pepper
sprayed him, placed him in the prone position, and
placed him in handcuffs. Id. at 319. A witness testified
that the arrestee ceased resisting once outside. Id.
Nevertheless, one of the officers kept “his knee on [the
man’s] back and ‘kept pushing [his] neck and head to
the ground with a stick.’ ” Id. The arrestee died as a
result. Id. at 319, 320 n.3.
The court in Wagner held that the officers’ actions
were reasonable under the Fourth Amendment considering the suspect’s initial resistance. Id. at 324. Importantly, the court expressly found that Gutierrez
could not support a finding that the arresting officers
violated clearly established law because the suspect in
Wagner “was not ‘hog-tied,’ and, as a result, the ‘very
limited’ holding of Gutierrez” did not control. Id. at 323.
And significantly, Wagner came to the Fifth Circuit on
summary judgment, meaning that, in light of the witness testimony that the suspect stopped resisting once
outside, the court in Wagner had to assume the suspect
was compliant for the duration of the restraint in
which officers applied force to his neck and back. Yet,
the Fifth Circuit still held there was no constitutional
infraction.
Against this legal backdrop, it was reasonable for
Petitioners—and Dillard in particular—to conclude
that it was lawful to restrain Timpa in the prone
31
position so long as Timpa was not hog-tied. And it is
undisputed that Timpa was never hog-tied.
The Fifth Circuit dismissed Wagner’s impact on
the qualified immunity analysis by pointing out that
the suspect in that case was initially more aggressive
than Timpa. (App.31.) Of course, even the Fifth Circuit
found Timpa’s resistance justified the first nine
minutes of Timpa’s restraint. (See App.7, 14, 18, 22.)
And it was reasonable for Dillard to believe the remaining moments of Timpa’s restraint was constitutional in light of the Fifth Circuit’s decision in Wagner,
where that court held no constitutional violation occurred when the suspect was compliant for the full duration of the time in which officers held him prone and
applied pressure to his neck and back. Dillard’s actions
were all the more reasonable by virtue of the fact that
seven minutes into the restraint he asked the paramedics if he should roll Timpa over. The paramedics
instructed Dillard not to do so, and there is no authority that exists stating it is unreasonable for a police
officer to take input from paramedics on how a suspect
is to be restrained while the paramedics render aid—
especially when the suspect is being restrained specifically for the purpose of getting him treatment.
Ultimately, even if the Fifth Circuit were correct
in deeming Timpa’s restraint unreasonable, there can
be no doubt that the law did not clearly proscribe
Dillard’s restraint of Timpa. See Lombardo, 361 F. Supp.
3d at 914 (“While the law on the use of force in situations involving prone restrain [sic] may ultimately
move toward the direction Plaintiffs suggest, the law
32
as of December 8, 2015, was not clearly established.”).
The Fifth Circuit conceded it was necessary to “provide
clarity and guidance to law enforcement” in its decision
in this case. (App.12.) It is precisely these situations—
where the lack of clarity requires additional guidance—that qualified immunity applies. Review is
warranted to enforce the Court’s qualified immunity
jurisprudence.
III. This case is an ideal vehicle for the Court
to address a matter of first impression:
whether and under what circumstances
law enforcement officers may be subject to
liability under 42 U.S.C. § 1983 for another
officer’s use of excessive force.
The Fifth Circuit reversed the summary judgment in favor of Mansell, Dominguez, and Vasquez,
reasoning, to the extent they were present for the full
duration of Timpa’s restraint, they could be liable as
bystanders. (App.33-36.) The Court has never opined
on whether officers can be subject to bystander liability
under 42 U.S.C. § 1983. Some of the circuit courts, however, have decided that bystander liability claims exist. E.g., Randall v. Prince George’s County, 302 F.3d
188, 204-05 (4th Cir. 2002); Hale, 45 F.3d at 919;
Gaudreault v. Municipality of Salem, 923 F.2d 203, 207
n.3 (1st Cir. 1990) (citing Byrd v. Brishke, 466 F.2d 6,
10-11 (7th Cir. 1972)).
In the Fifth Circuit, a plaintiff can recover on a
theory of bystander liability upon showing an officer
33
“(1) knew a fellow officer was violating an individual’s
constitutional rights, (2) was present at the scene of
the constitutional violation, (3) had a reasonable opportunity to prevent the harm but nevertheless, (4)
chose not to act.” Bartlett, 981 F.3d at 343 (citing Whitley v. Hannah, 726 F.3d 634, 646 (5th Cir. 2013)). Other
circuits’ standards for imposing bystander liability are
similar. E.g., Randall, 302 F.3d at 204. Standing alone,
the circuit courts’ elements for establishing bystander
liability lack factual specificity and are stated with too
broad a level of generality to overcome qualified immunity in the same way that “Graham’s and Garner’s
standards are cast ‘at a high level of generality.’ ”
Rivas-Villegas, 142 S. Ct. at 8 (quoting Brosseau, 543
U.S. at 199). To account for the factual specificity necessary to overcome a bystander officer’s qualified immunity, a plaintiff must identify a case in which a
bystander officer was held to have a constitutional obligation to intervene under similar circumstances. Bartlett, 981 F.3d at 345. Failure to require such a showing
would mean that a bystander officer effectively has no
independent qualified immunity of her own, as it would
impose strict liability based solely upon her presence
during another officer’s actions. Qualified immunity
demands a showing that a bystander actually acquiesced in the constitutional violation, and that showing
requires the plaintiff to identify a case in which bystander officers were deemed to have a constitutional
obligation to intervene under similar circumstances.
Here, the Fifth Circuit held that its decision in Hale
should have placed Mansell, Vasquez, and Dominguez
34
on notice that they had a duty to stop Dillard’s restraint of Timpa. But Hale is so different on its facts
that it provides no basis for Mansell, Vasquez, and
Dominguez to think they had an obligation to act. In
Hale, Hale alleged officers from various law enforcement agencies were retaliating against him for having
prevailed in a civil suit against local and federal officers. 45 F.3d 916-17. During this retaliatory campaign,
three officers approached Hale, asked him to step outside his place of business and, once outside, one of the
officers violently beat him. Id. at 917, 919. The remaining two officers laughed while encouraging Hale’s aggressor to continue the beating. Id.
Unlike Hale, Timpa did not suffer a violent assault
at the hands of ill-intentioned officers. Neither the
Fifth Circuit nor Respondents have identified any case
law specific enough to establish that Mansell,
Dominguez, and Vasquez had a constitutional obligation to intervene in Timpa’s restraint. The Court
should grant review to articulate the level of specificity
required of case law to impose liability upon bystander
officers who are not themselves accused of excessive
force.
---------------------------------♦---------------------------------
35
CONCLUSION
For the foregoing reasons, Petitioners request that
the Court grant their petition for a writ of certiorari.
Respectfully submitted,
CHRISTOPHER J. CASO
Dallas City Attorney
NICHOLAS D. PALMER
Assistant City Attorney
Counsel of Record
DALLAS CITY ATTORNEY’S OFFICE
1500 Marilla Street, Ste. 7DN
Dallas, Texas 75201
214-670-3519
nicholas.palmer@dallascityhall.com
Counsel for Petitioners
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.