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.

App. 1

United States Court of Appeals

for the Fifth Circuit

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No. 20-10876

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VICKI TIMPA, individually, and as representative of

THE ESTATE OF ANTHONY TIMPA; K.T., a minor child;

CHERYLL TIMPA, as next of friend of K.T., a minor

child,

Plaintiffs—Appellants,

versus

DUSTIN DILLARD; DANNY VASQUEZ; RAYMOND

DOMINGUEZ; DOMINGO RIVERA; KEVIN MANSELL,

Defendants—Appellees,

versus

JOE TIMPA,

Intervenor—Appellant.

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Appeal from the United States District Court

for the Northern District of Texas

USDC 3:16-CV-3089

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(Filed Dec. 15, 2021)

Before CLEMENT, SOUTHWICK, and WILLETT, Circuit

Judges.

EDITH BROWN CLEMENT, Circuit Judge:

App. 2

This appeal arises from the death of Anthony

Timpa while he was being restrained by law enforcement after he called 911 and asked for assistance during a mental health episode. Timpa’s family (the

Plaintiffs) filed this 42 U.S.C. § 1983 lawsuit, alleging

that five officers (the Officers) of the Dallas Police Department (DPD) violated Timpa’s Fourth Amendment

rights by causing his death through the prolonged use

of a prone restraint with bodyweight force during his

arrest. As relevant to this appeal, Plaintiffs asserted

claims of excessive force and of bystander liability. The

district court granted summary judgment to the individual Defendant-Officers on all claims and held that

they were entitled to qualified immunity. We REVERSE summary judgment as to the claim of excessive

force, and we AFFIRM in part and REVERSE in part

as to the claims of bystander liability.

I.

On the evening of August 10, 2016, Timpa called

911 and asked to be picked up. He stated that he had

a history of mental illness, he had not taken his medications, he was “having a lot of anxiety,” and he was

afraid of a man that was with him. The call ended abruptly. When the operator called back, Timpa provided

his location on Mockingbird Lane in Dallas, Texas. In

the background of the call, the sounds of honking and

of people arguing could be heard. A motorist then

placed a 911 call to report a man “running up and down

the highway on Mockingbird [Lane,] . . . stopping traffic” and attempting to climb a public bus. A private

App. 3

security guard called 911 with the same report and

noted his belief that the man “[was] on something.”

The dispatcher requested officers respond to a Crisis

Intervention Training (CIT) situation and described

Timpa as a white male with schizophrenia off his

medications.

A CIT call informs responding officers that the situation involves an individual who may be experiencing

mental health issues. DPD General Orders instructed

that five officers report to CIT calls to perform the

“Five-Man Takedown,” which is a control technique

where each of four officers secures one of the subject’s

limbs while a fifth officer holds the head. This technique allows officers to gain control over a subject and

simultaneously prevent him from injuring himself or

others. Regardless of whether officers were responding

to a CIT call, DPD General Orders instructed that, for

all arrestees, “as soon as [they] are brought under control, they are placed in an upright position (if possible)

or on their side.”

DPD General Orders reiterated this instruction

for the restraint of subjects suffering from “excited delirium.” Excited delirium is “a state of agitation, excitability, and paranoia . . . often associated with drug

use, most commonly cocaine.” Goode v. Baggett, 811 F.

App’x 227, 233 n.6 (5th Cir. 2020) (citing Gutierrez v.

City of San Antonio, 139 F.3d 441, 444 (5th Cir. 1998)).

The Orders described the following symptoms as indicators of excited delirium: “[d]elusions of persecution,”

“[p]aranoia,” and “[t]hrashing after restraint.” Officers

were instructed to “treat the arrest of a subject [in a

App. 4

state of excited delirium] as a medical emergency” and

to “continuously monitor[ ]” the arrestee because

“[s]ubjects suffering from this disorder may collapse

and die without warning.” The Orders commanded

that subjects in a state of excited delirium “will be

placed in an upright position (if possible) or on their

side as soon as they are brought under control.” In addition, the Officers on the scene received specific training on excited delirium, which twice reiterated that

officers must, “as soon as possible, move [the] subject

to a recovery position (on [their] side or seated upright)” because the prolonged use of a prone restraint

may result in “positional asphyxia.” The training also

warned that “[i]f [the] subject suddenly calms, goes unconscious, or otherwise becomes unresponsive, advise

[a paramedic] immediately,” because “[a] sudden cessation of struggle is a prime indicator that the subject

may be experiencing fatal autonomic dysfunction (sudden death).”

Supervising Police Sergeant Kevin Mansell arrived first on Mockingbird Lane at 10:36 p.m. By that

point, Timpa had already been handcuffed by two private security guards and he was sitting barefoot on the

grass beside the sidewalk. Mansell called for backup

and for an ambulance, stating that Timpa was “in traffic . . . and he’s definitely going to be a danger to himself.” According to Mansell, Timpa was “thrashing” on

the ground, “kicking in the air [at] nobody that’s there,”

and “hollering, ‘Help me, help me, God help me.’ ” Once,

before the other Officers arrived, Timpa managed to

roll into the gutter of the street and Mansell and a

App. 5

security guard lifted Timpa and placed him back on the

grass.

Within seven to ten minutes, two paramedics, Senior Corporal Raymond Dominguez, and Officers Dustin

Dillard, Danny Vasquez, and Domingo Rivera arrived.

Each of the Officers was informed that Timpa was a

mentally ill individual off his medications. Three of the

Officers (Dillard, Vasquez, and Rivera) were wearing

body cameras, which captured the following fifteen

minutes.

The footage begins with Timpa handcuffed and

barefoot on his back on the grass boulevard beside a

bus bench, yelling: “Help me! . . . You’re gonna kill me!”

The Officers attempted to calm Timpa. Timpa rolled

back and forth on the grass, then rolled close to the

curb of the street. Dillard and Vasquez immediately

forced Timpa onto his stomach and each pressed one

knee on Timpa’s back while a security guard restrained his legs.

Vasquez removed his knee after approximately

two minutes. Dillard continued to press his knee onto

Timpa’s upper back in the prone restraint position for

fourteen minutes and seven seconds. He pressed his

left knee into Timpa’s back and his left hand between

Timpa’s shoulders with his right hand pressing on

Timpa’s right shoulder intermittently. In his protective

vest and duty belt, Dillard weighed approximately 190

pounds.

Approximately fifteen seconds into the restraint,

Dillard asked Timpa: “What did you take?” Timpa

App. 6

answered, “Coke."1 One minute into the restraint, a

paramedic attempted to take Timpa’s vitals. The paramedic was unable to get a reading as Timpa continued

to struggle and yelled: “I can’t live!” Between three to

seven minutes into the restraint, the Officers swapped

out the private security guard’s handcuffs with some

difficulty because of Timpa’s continued flailing.2 At the

same time, the Officers zip tied Timpa’s ankles and

forced his lower legs under the cover of a concrete bus

bench. While the Officers were securing restraints on

Timpa’s ankles, one Defendant-Officer said: “We don’t

have to hogtie him, do we?” Another Defendant-Officer

suggested “we could pull his legs up.” The Officers ultimately left Timpa’s legs under the bus bench.

1

Dillard testified that he did not hear Timpa reply, “coke,”

but the video confirms that Timpa audibly stated he had taken

cocaine. The footage reflects Dillard asking Timpa what he had

taken at least seven times during the restraint and concluding at

least three times that Timpa “took something.” Timpa was also

exhibiting signs of excited delirium, such as “yelling incoherently[ ] and acting really strange.” Goode, 811 F. App’x at 236 (internal quotation marks omitted); see also Aguirre v. City of San

Antonio, 995 F.3d 395, 414 (5th Cir. 2021) (noting that a subject’s

“plainly erratic behavior” gave officers “reason to know of the substantial risk that [the subject] . . . was in a state of excited delirium”). Drawing all inferences in favor of the Plaintiffs, Dillard

was aware that Timpa may have been in a state of excited delirium approximately twenty seconds into the restraint.

2

The parties dispute whether Timpa kicked at the Officers

during the arrest. Dillard testified that he did not observe Timpa

intentionally kick at any Officers. The video does not clarify

whether Timpa was flailing or aiming to kick. The dispute is not

material because kicking in the air is still a form of resistance to

arrest. See Tucker v. City of Shreveport, 998 F.3d 165, 182 (5th

Cir. 2021).

App. 7

Seven minutes into the restraint, Timpa—prone

and cuffed at the hands and ankles—had calmed down

sufficiently for a paramedic to successfully take his vitals. When the paramedic approached, Dillard asked:

“Do you want me to roll him over?” The paramedic responded: “Before y’all move him, if I can just get right

here and see if I can get to his arm.” While the paramedic was taking Timpa’s vitals, Rivera left the scene

to find Timpa’s car. By the time the paramedic had finished, approximately nine minutes into the restraint,

Timpa’s legs had stopped kicking, though he remained

vocal and kept calling for help.

Thirty seconds later, only Timpa’s head moved intermittently from side to side. He continued to cry out

“Help me!” but his voice weakened and slurred. Much

of what he said was too muffled to be comprehensible.

Forty-five seconds later, he suddenly stilled and was

quiet except for a few moans. Then, he fell limp and

nonresponsive for the final three-and-a-half minutes of

the restraint.

The Officers discussed what to do next.

Dominguez said to Mansell: “So what’s the plan? You’re

[in charge] out here, sir.” Mansell responded that they

should “strap [Timpa] to a gurney.” Mansell then returned to his patrol car, “a few feet [away],” to check for

warrants for Timpa’s arrest. He sat in his vehicle “with

the car door open.”

During this time, the Officers began to express

concern that Timpa was nonresponsive. Dominguez

said, “Tony, are you still with us?” Vasquez said, “Is he

App. 8

acknowledging you anymore?” Dominguez said, “Not

really.” Dillard called Timpa’s name to no response.

Dominguez stated that he wanted to “mak[e] sure he

was still breathing ‘cause his nose is buried in the

[ground].” Dillard said, “I think he’s asleep!” and stated

that he heard Timpa “snoring.” Dominguez and

Vasquez expressed surprise and then made jesting

comments about Timpa’s loss of consciousness. A paramedic approached and asked what happened. Dillard

responded: “I don’t know. He just got quiet.” Vasquez

said: “All of a sudden, just . . . bloop.” The paramedic

administered a sedative and Timpa’s head twitched.

Then, three-and-a-half minutes after Timpa had become nonresponsive, Dillard removed his knee. Shortly

after the Officers placed Timpa on the gurney, the paramedics determined that he was dead.

The Dallas County Medical Examiner conducted

Timpa’s autopsy and ruled his death a homicide. The

report identified cocaine in Timpa’s blood and concluded that he had been suffering from “excited delirium syndrome.” The report further concluded that

Timpa died from “sudden cardiac death due to the toxic

effects of cocaine and [the] physiologic stress associated with physical restraint,” which could have resulted in “mechanical or positional asphyxia.”

Plaintiffs’ medical expert, Dr. Kim Collins, MD, a forensic pathologist, went one step further and concluded,

“to a reasonable degree of medical certainty,” that

Timpa’s death was caused by mechanical asphyxia,

which occurs when an individual’s torso is compressed,

preventing respiration and circulation of oxygen. She

App. 9

testified that Timpa’s obesity, extreme exertion, and

state of excited delirium exacerbated the risk of mechanical asphyxiation. She further testified that

Timpa would have lived had he been restrained for the

same amount of time in a prone position without force

applied to his back.

Vicki Timpa, the mother of the deceased, individually and as representative of the estate of the deceased, and Cheryll Timpa, individually and as next

friend of K.T., a minor child of the deceased, filed this

Section 1983 lawsuit alleging, as relevant here, a claim

of excessive force against Defendant-Officer Dillard

and claims of bystander liability against DefendantOfficers Mansell, Vasquez, Dominguez, and Rivera. Joe

Timpa, the father of the deceased, later intervened. On

summary judgment, the district court granted qualified immunity to the Officers in their individual capacity on the basis that “there was no law clearly

establishing Defendants’ conduct as a constitutional

violation prior to August 10, 2016.” The district court

dismissed the bystander liability claims on the same

basis. On appeal, the Plaintiffs argue that the district

court erred in dismissing the excessive force claim and

the bystander liability claims.

II.

We review the district court’s grant of summary

judgment de novo. See Aguirre, 995 F.3d at 405. Summary judgment is appropriate only “if the movant

shows that there is no genuine dispute as to any

App. 10

material fact and [that] the movant is entitled to judgment as a matter of law.” Darden v. City of Fort Worth,

880 F.3d 722, 727 (5th Cir. 2018) (quoting FED. R. CIV.

P. 56(a)). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The defense of qualified immunity “balance[s] two

competing societal interests: ‘the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform

their duties reasonably.’ ” Joseph ex rel. Est. of Joseph

v. Bartlett, 981 F.3d 319, 328 (5th Cir. 2020) (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009)). Where

a plaintiff alleges excessive force during an arrest, “the

federal right at issue is the Fourth Amendment right

against unreasonable seizures.” Tolan v. Cotton, 572

U.S. 650, 656 (2014) (per curiam).

Whether the amount of force used was objectively

reasonable requires “a balancing of the nature and

quality of the intrusion on the individual’s Fourth

Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.” Id. (cleaned up) (quoting Tennessee v. Garner,

471 U.S. 1, 8 (1985)). A fact-specific range of permissible force emerges, “such that the need for force determines how much force is constitutionally permissible.”

Bush v. Strain, 513 F.3d 492, 501 (5th Cir. 2008). At one

end of the spectrum, “a threat of serious physical harm,

either to the officer or to others” may justify the use of

deadly force. Tennessee v. Garner, 471 U.S. 1, 11 (1985).

App. 11

At the other end of the spectrum, when a subject has

been subdued—meaning, he “lacks any means of evading custody” and does not pose a threat of immediate

harm—the further use of force is not justified. Bartlett,

981 F.3d at 335. For the cases in between, a court

should consider the “totality of the circumstances.”

Darden, 880 F.3d at 728.

But a plaintiff ’s showing that a constitutional violation has occurred is not enough. The doctrine of

qualified immunity shields “government officials performing discretionary functions . . . from liability for

civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights

of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, to

defeat a motion for summary judgment based on qualified immunity, the plaintiff must present evidence

“(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Morgan

v. Swanson, 659 F.3d 359, 371 (5th Cir. 2011) (en banc)

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

III.

We begin with the excessive force claim against

Dillard. The Plaintiffs contend that Dillard unlawfully

restrained Timpa in the prone position with bodyweight force pressed on Timpa’s back and that the

state of the law in August 2016 clearly established that

officers could not subject a subdued individual to the

App. 12

use of force. Although we may begin with either prong

of qualified immunity, we turn first to the merits of the

excessive force claim to provide clarity and guidance to

law enforcement.

The Plaintiffs contend that Dillard’s restraint of

Timpa constituted both excessive force and deadly

force in violation of the Fourth Amendment. Claims

that law enforcement used deadly force are “treated as

a special subset of excessive force claims.” Aguirre, 995

F.3d at 412 (citing Gutierrez, 139 F.3d at 446). We consider first whether Dillard’s use of force was excessive

and second whether a jury could find the force used

was deadly.

A.

1.

The reasonableness of the use of force turns on our

consideration of the full factual context, particularly

the following three factors: (1) “the severity of the

crime at issue,” (2) “whether the suspect pose[d] an immediate threat to the safety of the officers or others,”

and (3) “whether he [was] actively resisting arrest or

attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). “A court . . . cannot apply

this standard mechanically,” but must look through

the eyes of a reasonable officer on the scene. Kingsley

v. Hendrickson, 576 U.S. 389, 397 (2015).

As to the first Graham factor, Dillard’s continued

use of force was not justified by a criminal

App. 13

investigatory function. The Officers concede that

Timpa’s criminal liability was “minor”—no more than

a traffic violation. See TEX. PENAL CODE § 42.03; TEX.

TRANSP. CODE §§ 552.001-.006, 542.301. The Officers

did not intend to charge him with any crimes. The first

factor weighs against the reasonableness of the prolonged use of bodyweight force. Cf. Trammell v. Fruge,

868 F.3d 332, 340 (5th Cir. 2017) (noting that “a minor

offense militat[es] against the use of force”); Deville v.

Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) (per curiam) (same).

In addition, we note that these facts do not present

the paradigmatic circumstance of “an officer arriv[ing]

at the scene with little or no information and [having]

to make a split-second decision” in response to criminal

activity. Darden, 880 F.3d at 732. The Officers had been

dispatched to a CIT situation after Timpa himself had

called 911 requesting to be picked up. Darden was thus

equipped with the understanding that Timpa was

likely experiencing a mental health crisis and needed

medical assistance. He arrived to observe a barefoot,

handcuffed man in distress on the grass boulevard beside the sidewalk. These perceptions were material to

his assessment of “how much additional force, if any,

was necessary” to control the situation. Id.

The second Graham factor considers whether the

subject posed “an immediate threat” to the safety of

others. Graham, 490 U.S. at 396. The Officers contend

that the continued use of force was justified because

Timpa had interfered with traffic earlier in the evening and had kicked his legs when the Officers

App. 14

attempted to restrain him. But “an exercise of force

that is reasonable at one moment can become unreasonable in the next if the justification for the use of

force has ceased.” Lytle v. Bexar County, 560 F.3d 404,

413 (5th Cir. 2009). Approximately nine minutes into

the restraint, Timpa was cuffed at both the wrists and

the ankles, his lower legs had stopped moving, and he

was surrounded by five officers, two paramedics, and

two private security guards—most of whom were mulling about while Dillard maintained his bodyweight

force on Timpa’s upper back.

As to any threat of harm to the Officers, it is obvious that Timpa could no longer kick when he was lying

face down and handcuffed with his ankles restrained

and confined under the bus bench. As to any threat to

himself, Timpa had already calmed down sufficiently

for the paramedics to take his vitals. As to any threat

to passing motorists, Plaintiffs’ expert opined that “it

was unlikely, if not completely impossible, for [Timpa]

to roll into the street considering he was literally

flanked on all sides by police officers.” And when the

paramedic asked if Timpa could walk to the ambulance

in ankle cuffs, Dillard said: “I highly doubt it.” A jury

could find that no objectively reasonable officer would

believe that Timpa—restrained, surrounded, and subdued—continued to pose an immediate threat of harm

justifying the prolonged use of force. Cf. Lombardo v.

City of St. Louis, 141 S. Ct. 2239, 2241 (2021) (per curiam) (noting that whether a subject “was handcuffed

and leg shackled” reflects on “the security problem at

issue[ ] and the threat—to both [the arrestee] and

App. 15

others—reasonably perceived by the officers”); Aguirre,

995 F.3d at 409 (holding a genuine dispute of material

fact existed with respect to whether a handcuffed subject surrounded by five police officers posed an immediate threat justifying the use of a maximal prone

restraint). The second Graham factor weighs against

the objective reasonableness of the prolonged use of

force.

Turning to the third Graham factor, the Plaintiffs

have raised a genuine dispute of material fact as to

whether Timpa continued to actively resist arrest. The

Officers first argue that the continued use of force was

justified because Timpa struggled intermittently. But

“even if [Timpa] failed to comply and struggled against

the officers at certain points throughout the encounter,

that resistance did not justify force indefinitely.” Bartlett, 981 F.3d at 335. Officers cannot use force independent of a subject’s “contemporaneous, active

resistance.” Id. Thus, even assuming that Timpa’s flailing amounted to active resistance, “the force calculus

change[d] substantially once that resistance end[ed]”

nine minutes into the restraint. Curran v. Aleshire, 800

F.3d 656, 661 (5th Cir. 2015); see also Tucker, 998 F.3d

at 181–82 (“[A] use of force that may begin as reasonably necessary in order to obtain compliance may cease

to be so as a suspect becomes more compliant.”).

The Officers next argue that Timpa continued to

actively resist arrest by “squirm[ing]” and “mov[ing]

his head from left to right” in the final minutes of the

restraint. Plaintiffs contend that Timpa moved his

body in order to breathe. Plaintiffs’ expert, Dr. Collins,

App. 16

testified that pressing down on the torso of a subject

held in a prone restraint “greatly increases the work of

breathing,” which leads the subject to “experience[ ] air

hunger, panic, and anxiety as Mr. Timpa did.” She concluded: “[i]t can be anticipated that the victim will attempt to move his body in order to breathe."3 The body

camera footage does not plainly contradict the Plaintiffs’ version of the facts: Timpa attempts to raise his

torso and cries out repetitively: “Help me,” “You’re

gonna kill me,” “I’m gonna die,” “I can’t live.”

The risks of asphyxiation in this circumstance

should have been familiar to Dillard because he had

received training on the use of a prone restraint to control subjects in a state of excited delirium. See Darden,

880 F.3d at 732 n.8 (“[T]he violation of police department policies . . . and corresponding notice to officers

[is] relevant in analyzing the reasonableness of a particular use of force under the totality of the circumstances.”). DPD training instructed that a subject in a

state of excited delirium must, “as soon as possible[,]

[be] mov[ed] . . . to a recovery position (on [their] side

or seated upright),” because the prolonged use of a

prone restraint may result in a “combination of

3

A jury could also consider prominent guidance circulated

by the Department of Justice warning of the risk of positional asphyxia resulting from the use of a prone restraint. See NAT’L LAW

ENF ’T TECH. CTR., U.S. DEP’T OF JUST., POSITIONAL ASHYXIA—SUDDEN DEATH (1995), https://www.ncjrs.gov/pdffiles/posasph.pdf;

cf. Lombardo, 141 S. Ct. at 2241 (noting that “well-known police

guidance” warning “that the struggles of a prone suspect may be

due to oxygen deficiency, rather than a desire to disobey officers’

commands,” reflects on whether the force used was excessive).

App. 17

increased oxygen demand with a failure to maintain

an open airway and/or inhibition of the chest wall and

diaphragm [that] has been cited in positional asphyxia

deaths.” Dillard was also trained that “[i]f [the] subject

suddenly calms, goes unconscious, or otherwise becomes unresponsive, . . . [a] sudden cessation of struggle is a prime indicator that the subject may be

experiencing fatal autonomic dysfunction (sudden

death).” A sudden cessation of struggle and lack of responsiveness is precisely what occurred in the final

minutes of Timpa’s restraint.4 A jury could find that an

objectively reasonable officer with Dillard’s training

would have concluded that Timpa was struggling to

breathe, not resisting arrest.5 See Darden, 880 F.3d at

4

The Officers contend that they believed Timpa to be faking

sleep as a tactic to gain an advantage. That issue “is a factual

question that must be decided by a jury.” Darden, 880 F.3d at 730.

At the summary judgment phase, it is not for us to “weigh the

evidence and determine the truth of the matter,” but rather, to

draw all justifiable inferences in favor of the non-movant. Liberty

Lobby, 477 U.S. at 249.

5

That paramedics were present during the arrest and did

not intervene does not change the calculus of objective unreasonableness. See, e.g., Aguirre, 995 F.3d at 404, 420 (finding a Fourth

Amendment violation when officers used a maximal prone restraint despite the presence of a medical tech officer); Goode,

811 F. App’x at 229 (finding a Fourth Amendment violation when

officers used a hog-tie restraint despite the presence of medical

personnel); Gutierrez, 139 F.3d at 442–43 (finding a Fourth

Amendment violation when officers used a hog-tie restraint despite the assistance of paramedics in placing the subject in that

position). And under DPD General Orders, it is not the paramedics but the “[o]fficers [that] are responsible for rendering first

aid to injured subjects,” including: “[m]onitoring the subject,”

App. 18

730 (holding that a “jury could conclude that all reasonable officers on the scene would have believed that

[the subject] was merely trying to get into a position

where he could breathe and was not resisting arrest”);

see also Goode, 811 F. App’x at 232 (same). The final

Graham factor weighs against the objective reasonableness of the continued use of force.

Viewing the facts in the light most positive to the

Plaintiffs, none of the Graham factors justified the prolonged use of force. A jury could find that Timpa was

subdued by nine minutes into the restraint and that

the continued use of force was objectively unreasonable in violation of Timpa’s Fourth Amendment rights.

Of course, a jury may ultimately conclude the opposite:

that Timpa was not subdued and that he continued to

pose an immediate threat throughout his restraint.

Under that consideration of the facts, Dillard’s decision

to continue exercising force might be reasonable. Ultimately, it is the job of the factfinder, not of this court,

to resolve those factual disputes for itself. A jury’s interpretation ensures that legal judgments of reasonableness hew closely to widely shared expectations of

the use of force by our police officers.

2.

The deadly force inquiry is two-pronged: First,

whether the force used constituted deadly force; and

second, whether the subject posed a threat of serious

“[c]hecking pulse and skin color,” and “[c]hecking for consciousness.”

App. 19

harm justifying the use of deadly force. See Gutierrez,

139 F.3d at 446 (citing Garner, 471 U.S. at 11). Plaintiffs argue that the prolonged use of a prone restraint

with bodyweight force on the back of an individual who

possessed apparent risk factors and posed no serious

threat of harm constituted an objectively unreasonable

application of deadly force.

a.

“[W]hether a particular use of force is ‘deadly

force’ is a question of fact, not one of law.” Flores v. City

of Palacios, 381 F.3d 391, 399 (5th Cir. 2004). The question is whether a jury could find that the use of force

“carr[ied] with it a substantial risk of causing death or

serious bodily harm.” Gutierrez, 139 F.3d at 446 (quoting Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir.

1988)). The Plaintiffs argue that kneeling on the back

of an individual with three risk factors—obesity, excited delirium, and prior vigorous exertion—carried a

substantial risk of causing death or serious bodily

harm. The Officers argue that the Plaintiffs have failed

to set forth sufficient evidence to create a triable fact

issue.

The summary judgment record includes DPD’s

General Orders instructing officers to place subdued

subjects—particularly those in a state of excited delirium—in an upright position or on their side. The Officers were trained that the prolonged use of a prone

restraint on subjects in a state of excited delirium can

result in positional asphyxia death. The jury could also

App. 20

consider prominent guidance from the Department of

Justice instructing that, to avoid positional asphyxia,

officers should, “[a]s soon as the suspect is handcuffed,

get him off his stomach.” DOJ, Positional Asphyxia—

Sudden Death 1–2. The Department’s guidance highlighted (1) obesity, (2) excited delirium, and (3) vigorous exertion as “predisposing factors” that “compound

the risk of sudden death.” Id.

Plaintiffs also presented expert testimony on the

substantial risks of a prone restraint with weight force

on an obese and physically exhausted subject in a state

of excited delirium. Plaintiffs’ medical expert, Dr. Collins, testified that the prone restraint position with

bodyweight force is inherently lethal if used for an extended period of time. She described in detail how the

use of the prone restraint with bodyweight force significantly increased the likelihood of asphyxiation:

In the prone position, an individual is unable

to effectively move the diaphragm, chest wall,

and abdomen to breathe. . . . The body is also

unable to adequately circulate blood resulting

in engorgement and stagnation of blood flow

in the upper body. . . . The face, partially or

fully, pressed to the ground further decreases

oxygenation. . . . When force is on the back

and shoulders, . . . [i]t is extremely difficult to

move the chest and abdomen. . . . When the

body is prone and great force is on the back,

the head, neck, and shoulders become engorged with blood while the lower part of the

body is of normal color. Mr. Timpa had marked

cyanosis with a clear line of demarcation

App. 21

across his chest indicative of . . . a tremendous

amount of pressure to his back.

She testified that Timpa would have lived had he been

restrained for the same amount of time in the prone

position without force applied to his back.6

Dr. Collins further testified that the risk of acute

respiratory failure is greater when (1) “[i]ndividuals

. . . have been physically exhausted prior to this restraint,” (2) “the individual is obese or has a large belly

as this mass encroaches on the abdomen and diaphragm,” (3) the individual suffers from untreated psychiatric illness, which may increase oxygen demand,

and (4) the individual is drug-affected, which “increases metabolism” and requires “more blood pumping through [the] body” carrying “more oxygen.” As Dr.

Collins explained—and as Dillard had been trained—

the latter two factors can result in a state of excited

delirium.

A jury could find that all three of these risk factors

were apparent on the night that Timpa died. The video

footage reflects Timpa exerting significant effort while

the Officers applied restraints. The video footage also

clearly reflects Timpa’s larger body size. The 911

6

The Officers argue that the Plaintiffs must identify the precise frequency with which death results from the use of a prone

restraint combined with weight force. They cite no caselaw for

that premise and we are not aware of any. Cf. Aguirre, 995 F.3d

at 413–14 (relying on an experts’ explanation of the increased

risks of serious harm from the use of a maximal prone restraint);

Gutierrez, 139 F.3d at 446 (relying on evidence that “a number of

persons” had died from the use of a hog-tie restraint).

App. 22

operator informed the Officers that Timpa was a “diagnosed schizophrenic” off his medications. And Timpa

told the Officers that he had used cocaine.

Plaintiffs have raised a genuine issue of material

fact as to whether the use of a prone restraint with

bodyweight force on an individual with three apparent

risk factors—obesity, physical exhaustion, and excited

delirium—“create[d] a substantial risk of death or serious bodily injury.” Gutierrez, 139 F.3d at 446. A jury

could find that this use of force constituted “deadly

force.”

b.

Officers can use deadly force only if they have

“probable cause to believe that the suspect poses a

threat of serious physical harm.” Mason v. Lafayette

City-Par. Consol. Gov’t, 806 F.3d 268, 275 (5th Cir.

2015) (quoting Garner, 471 U.S. at 11). Here, the Officers concede that the use of deadly force was not justified. But the record supports an inference that Dillard

knelt on Timpa’s back with enough force to cause asphyxiation.

Viewing the facts in the light most favorable to the

Plaintiffs, the record supports that Timpa was subdued

nine minutes into the continuing restraint and did not

pose a threat of serious harm. The Officers make no

argument that the use of asphyxiating pressure was

necessary to maintain control of a subdued subject. In

other words, the record supports the inference that, for

at least five minutes, Timpa was subjected to force

App. 23

unnecessary to restrain him. If a jury were, in addition,

to find that the use of a prone restraint with bodyweight force on an obese, exhausted individual in a

state of excited delirium carried a substantial risk of

causing death or serious bodily harm, then the prolonged restraint constituted an objectively unreasonable application of deadly force.

B.

The district court determined that no precedent

clearly established that the use of a prone restraint

with bodyweight force to bring a subject under police

control was objectively unreasonable. But the district

court failed to consider the continued use of such force

after Timpa had been restrained and lacked the ability

to pose a risk of harm or flight. We hold that the state

of the law in August 2016 clearly established that an

officer engages in an objectively unreasonable application of force by continuing to kneel on the back of an

individual who has been subdued.

Officers are entitled to qualified immunity “unless

existing precedent ‘squarely governs’ the specific facts

at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018)

(per curiam) (quoting Mullenix v. Luna, 577 U.S. 7, 15

(2015) (per curiam)). That does not require a showing

that “the very action in question has previously been

held unlawful.” Anderson v. Creighton, 483 U.S. 635,

640 (1987). Rather, there can be “notable factual distinctions between the precedents relied on . . . so long

as the prior decisions gave reasonable warning that

App. 24

the conduct then at issue violated constitutional

rights.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) (quoting United States v. Lanier, 520 U.S. 259, 269 (1997)).

Within the Fifth Circuit, the law has long been

clearly established that an officer’s continued use of

force on a restrained and subdued subject is objectively

unreasonable. See Carroll v. Ellington, 800 F.3d 154,

177 (2015) (“The law was clearly established at the

time of the deputies’ conduct that, once a suspect has

been handcuffed and subdued, and is no longer resisting, an officer’s subsequent use of force is excessive.”

(citing Strain, 513 F.3d at 501–02)). “[A]lthough the

right to make an arrest necessarily carries with it the

right to use some degree of physical coercion or threat

thereof to effect it, the permissible degree of force depends on [the Graham factors].” Cooper v. Brown, 844

F.3d 517, 524–25 (5th Cir. 2016) (quoting Strain, 513

F.3d at 502). And “if enough time elapsed between the

[subject’s active resistance] and the use of force that a

reasonable officer would have realized [the subject]

was no longer resisting,” the further use of force is unnecessary and objectively unreasonable. Curran, 800

F.3d at 661 (quoting Newman v. Guedry, 703 F.3d 757,

764 (5th Cir. 2012)). Our decisions in Strain, Cooper,

and Darden clearly established the excessiveness of

Dillard’s continued use of force on a restrained and

subdued arrestee.

In Bush v. Strain, we held that it was objectively

unreasonable for an officer to force a subject’s face into

the window of a vehicle when the subject “was not resisting arrest or attempting to flee.” 513 F.3d at 502.

App. 25

There, the defendant-officer attempted to arrest Holly

Bush for simple battery. Id. at 496. Partially handcuffed, Bush pulled her right arm away from the defendant-officer. Id. Bush alleged that, after the

defendant-officer successfully handcuffed her, he

“placed his hand behind her neck and head and forced

her face into the rear window of a nearby vehicle.” Id.

Bush suffered severe injuries to her jaw. Id. Because

none of the Graham factors justified the continued use

of force, we agreed that it was objectively unreasonable

for the defendant-officer to “forcefully slam [an arrestee’s] face into a vehicle while she was restrained

and subdued.” Id. at 502.

Similarly, in Cooper v. Brown, we relied on the use

of force in Strain to hold “that subjecting a compliant

and non-threatening arrestee to a lengthy dog attack

was objectively unreasonable.” 844 F.3d at 525. There,

Jacob Cooper was suspected of driving under the influence and fled the scene on foot when stopped by an

officer. Id. at 521. Another officer pursued Cooper and

ordered his K9 unit to bite Cooper on the calf. Id. Although Cooper immediately became compliant and

subdued, the officer did not order the dog to release its

bite until after the handcuffs were secured—one to two

minutes after the bite began. Id. We explained that it

was objectively unreasonable for the defendant-officer

to “continue[ ] applying force even after Cooper . . . was

on his stomach” and subdued. Id. at 523.

Finally, in Darden v. City of Fort Worth, we relied

on the use of force in Strain and in Cooper to reiterate

that, “it [is] clearly established that violently

App. 26

slamming or striking a suspect who is not actively resisting arrest constitutes excessive use of force.” 880

F.3d at 733. There, the defendant-officer punched,

kicked, choked, and “forced [Jermaine] Darden—an

obese man—onto his stomach, pushed his face into the

floor, and pulled Darden’s hands behind his back.” Id.

At the time that the defendant-officer used the prone

restraint with bodyweight force, Darden was compliant and not resisting arrest. Id. In addition, the defendant-officer had reason to believe that he was using

asphyxiating force because witnesses at the scene were

yelling that Darden could not breathe. Id. We found

that the defendant-officer’s actions “were plainly in

conflict with our case law” prohibiting the use of force

against a subdued subject. Id.

We have reaffirmed again and again that this

principle applies with obvious clarity to a variety of

tools of force because the “[l]awfulness of force . . . does

not depend on the precise instrument used to apply it.”

Guedry, 703 F.3d at 763; see, e.g., Bartlett, 981 F.3d at

342 (striking an unrestrained, subdued subject in the

prone position); Ellington, 800 F.3d at 177 (striking a

restrained, subdued subject in the prone position);

Curran, 800 F.3d at 661 (pressing a restrained, subdued subject against a wall); Ramirez v. Martinez, 716

F.3d 369, 379 (5th Cir. 2013) (tasing a restrained, subdued subject in the prone position); Guedry, 703 F.3d

at 764 (striking and tasing an unrestrained, subdued

subject).

Like the subject in Strain, Timpa was suspected

of only a minor offense. See 513 F.3d at 496. Timpa

App. 27

initially resisted arrest, similar to the subjects in

Strain and in Cooper. See Cooper, 844 F.3d at 522;

Strain, 513 F.3d at 496. Timpa, like the subject in

Darden, was obese and forced to lie prone on his stomach with his hands restrained and bodyweight force

applied to his back. See 880 F.3d at 733. As in Darden,

Dillard had reason to believe that Timpa was struggling to breathe because Timpa told the Officers he

took cocaine, which indicated a significant risk of excited delirium. Id. Most importantly, like the subjects

in Strain, Cooper, and Darden, Timpa was subdued,

unable to flee, and non-threatening during the continued use of force. See Darden, 880 F.3d at 733; Cooper,

844 F.3d at 523; Strain, 513 F.3d at 502.

The distinguishing facts between Strain, Cooper,

Darden, and this case sharpen the excessiveness of

Dillard’s continued use of force. Unlike the subjects in

Cooper and Darden, who were suspected of serious

crimes, Timpa himself called the police asking for assistance. See Darden, 880 F.3d at 729; Cooper, 844 F.3d

at 522. The officers had no intention of arresting him

for any crime. Whereas the defendant-officers in

Strain, Cooper, and Darden ceased using force shortly

after the subject was restrained, Dillard continued to

kneel on Timpa’s back for seven minutes after he was

restrained at both the wrists and the ankles, including

five minutes after he ceased moving his lower legs,

and three-and-a-half minutes after he lost consciousness. See Darden, 880 F.3d at 726; Cooper, 844 F.3d at

521; Strain, 513 F.3d at 496. Here, the use of force

lasted for over fourteen minutes as compared with the

App. 28

one-to-two minute dog bite in Cooper; the one-to-two

minute use of a prone restraint with weight force in

Darden; and the momentary use of force in Strain. See

Cooper, 844 F.3d at 521; Strain, 513 F.3d at 496;

Darden v. City of Fort Worth, No. 4:15-CV-221-A, 2016

WL 4257469, at *5 (N.D. Tex. Aug. 10, 2016). Finally,

unlike the use of force in Cooper and in Strain, the use

of a prone restraint with weight force resulted in the

subject’s death in Darden and again here. See Darden,

880 F.3d at 732 n.8. These cases clearly established the

unreasonableness of Dillard’s continued use of bodyweight force to hold Timpa in the prone restraint position after he was subdued and restrained.

This conclusion comports with the decisions of our

sister circuits that have considered similar facts. See

McCue v. City of Bangor, 838 F.3d 55, 64 (1st Cir. 2016)

(holding that “it was clearly established in September

2012 that exerting significant, continued force on a

person’s back ‘while that [person] is in a face-down

prone position after being subdued and/or incapacitated constitutes excessive force’ ” (citation omitted));

Weigel v. Broad, 544 F.3d 1143, 1155 (10th Cir. 2008)

(holding that “the law was clearly established,” by December 2002, “that applying pressure to [a subject’s]

upper back, once he was handcuffed and his legs restrained, was constitutionally unreasonable due to the

significant risk of positional asphyxiation associated

with such actions”); Abdullahi v. City of Madison, 423

F.3d 763, 764–66 (7th Cir. 2005) (holding that the record supported an inference of deadly force when an officer restrained a mentally ill individual in the prone

App. 29

restraint position with bodyweight force for thirty to

forty-five seconds until the individual lost consciousness); Champion v. Outlook Nashville, Inc., 380 F.3d

893, 903 (6th Cir. 2004) (holding that the law in April

2000 clearly established that “putting substantial or

significant pressure on a suspect’s back while that

suspect is in a face-down prone position after being

subdued and/or incapacitated constituted excessive

force”); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1061 (9th Cir. 2003) (holding that

the continued use of a prone restraint with weight

force “despite [the arrestee’s] repeated cries for air, and

despite the fact that his hands were cuffed behind his

back and he was offering no resistance” constituted excessive force).7

The Officers argue that the Fifth Circuit “has

held that [the use of a] prone restraint [on] a resisting

suspect does not violate the Fourth Amendment even

when pressure is applied to the suspect’s back.” We

have never articulated this per se rule. Nor could we

because the Supreme Court has specifically rejected

exactly that rule. See Lombardo, 141 S. Ct. at 2241

(per curiam) (rejecting any per se rule that “the use

of a prone restraint—no matter the kind, intensity,

duration, or surrounding circumstances—is . . . constitutional so long as an individual appears to resist

7

Only the Eighth Circuit has held in the reverse and the

Supreme Court recently vacated that decision on the merits. See

Lombardo v. City of St. Louis, 956 F.3d 1009 (8th Cir. 2020), rev’d,

141 S. Ct. 2239 (2021) (per curiam).

App. 30

officers’ efforts to subdue him”). The Officers mischaracterize our caselaw.

In Castillo v. City of Round Rock, an unpublished

decision, we stated that “[r]estraining a person in a

prone position is not, in and of itself, excessive force

when the person restrained is resisting arrest.” No. 9050163, 1999 WL 195292, at *4 (5th Cir. Mar. 15, 1999)

(per curiam). But this statement cannot be unmoored

from its factual context. There, Jesus Castillo, an unrestrained subject holding a beer bottle above his head,

had “fought” and “struggl[ed] vigorously on the

ground” against an officer’s attempts to subdue him,

leading “citizen bystanders . . . to aid in th[e] effort” of

restraining him. Id. at *1. During the subsequent tussle, Castillo “blood[ied] the officer’s nose[ ] in a manner

that a reasonable officer could perceive as hostile.” Id.

at *3. Two officers then held Castillo in the prone restraint position with bodyweight force on his back for

four to six minutes while restraints were applied. Id.

at *1–2. But once Castillo was “handcuffed and legshackled, [and] finally stopped struggling, the officers

rolled him over” into a recovery position. Id. at *2. The

officers realized that Castillo “appeared to be unconscious” and immediately “rushed [him] to the hospital.”

Id. at *2–4.

By contrast, here, Dillard arrived on the scene to

observe Timpa handcuffed on the ground—a factor

that he was required to consider when determining

how much force was reasonably necessary to prevent

Timpa evading arrest or posing a threat of harm. See

Darden, 880 F.3d at 732. Whereas we held that the

App. 31

officer in Castillo reasonably perceived the raising of a

beer bottle as threatening, here, Dillard testified that

he did not perceive Timpa was aiming to injure the

Officers by kicking his legs. Whereas the officers

placed Castillo in a recovery position as soon as he was

restrained and subdued, Dillard failed to place Timpa

in the recovery position for at least five minutes after

he was restrained and subdued. And whereas the officers sought medical attention as soon as they realized

that Castillo was nonresponsive, Dillard failed to seek

medical attention for an additional three minutes after

he recognized that Timpa was unconscious.

The Officers’ citation to Wagner v. Bay City fares

no better. See 227 F.3d 316 (5th Cir. 2000). There, Gilbert Gutierrez initiated a violent physical altercation

with the defendant-officers—“swinging his fists[ ]

[and] striking” them. Id. at 318. The officers responded

by using pepper spray and placing Gutierrez in the

prone position with bodyweight force on his back while

they applied handcuffs. Id. at 319. Once restrained, the

officers placed Gutierrez face down in the prone position in the patrol car to be transported to jail. Id. at

323–24. We held that the use of force was reasonable

because Gutierrez had violently continued to resist arrest during the officers’ use of force and “there were no

apparent physical signs that Gutierrez was substantially at risk” of asphyxiation. Id. at 324.

Wagner did not speak to the use of force at issue

here—a prone restraint with bodyweight force while

Timpa was restrained and subdued. See 227 F.3d at

324. Unlike Gutierrez, Timpa never engaged the

App. 32

Officers in a violent altercation; rather, he was already

handcuffed by the time that Dillard arrived on the

scene. In Wagner, the defendant-officers responded to

Gutierrez’s diminished resistance by removing their

bodyweight from his back. See 227 F.3d at 319. Here,

Dillard continued to exert asphyxiating force by kneeling on Timpa’s upper back long after he had gone limp.

And unlike the absence of physical signs of substantial

risk of asphyxiation in Wagner, Dillard was aware that

Timpa was obese and had used cocaine, which exacerbated the risk of asphyxiation.

Neither Wagner nor Castillo stands for a per se

rule that the use of a prone restraint is objectively reasonable so long as the subject is resisting. Like any

other tool of control, a prone restraint may rise to unconstitutional force depending on when and how it is

used. See Aguirre, 995 F.3d at 411–12, 424 (Jolly, J.,

concurring), 424 (Higginson, J., concurring) (holding

the use of a maximal prone restraint with bodyweight

pressed against a subject’s torso and legs constituted

excessive force in violation of the Fourth Amendment);

Darden, 880 F.3d at 733 (holding it was objectively unreasonable for an officer to “force[ ] . . . an obese man

. . . onto his stomach, push[ ] his face into the floor, and

pull[ ] [his] hands behind his back” where the arrestee

was not “actively resisting” arrest); Simpson v. Hines,

903 F.2d 400, 403 (5th Cir. 1990) (holding the use of a

prone restraint with bodyweight force pressed on a

pre-trial inmate’s back and neck constituted “grossly

disproportionate” force in violation of the Fourteenth

Amendment).

App. 33

Here, a prone restraint was used in tandem with

Dillard’s body weight for over fourteen minutes. If a

jury were to find that Timpa was subdued and nonthreatening by nine minutes into the restraint, then

the continued use of force for five additional minutes

was necessarily excessive. Cf. Aguirre, 995 F.3d at 424

(Jolly, J., concurring) (denying qualified immunity as to

the last two minutes of a maximal prone restraint);

Roque v. Harvel, 993 F.3d 325, 335–36 (5th Cir. 2021)

(granting qualified immunity for the first shot fired by

an officer, but denying as to the second and third shots

fired two and four seconds later, respectively); Cooper,

844 F.3d at 521 (denying qualified immunity as to the

final one-to-two minutes of a dog bite). We recognize

that our police officers are often asked to make splitsecond judgments about the use of force, but the Constitution demands that officers use no more force than

necessary and “hold[s] [them] accountable when they

exercise power irresponsibly.” Pearson v. Callahan, 555

U.S. 223, 231 (2009). Because the state of the law in

August 2016 had clearly established that the continued use of force against a restrained and subdued

subject violates the Fourth Amendment, DefendantOfficer Dillard is not entitled to qualified immunity.

IV.

We now consider the bystander liability claims

against Officers Dominguez, Vasquez, Mansell, and

Rivera. Within the Fifth Circuit, “[a]n officer is liable for

failure to intervene when that officer: (1) knew a fellow

officer was violating an individual’s constitutional

App. 34

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. The Plaintiffs again bear

the burden to demonstrate that the state of the law in

August 2016 clearly established that “any reasonable

officer would have known that the Constitution required them to intervene” in this circumstance. Id. at

345.

Plaintiffs contend that Hale v. Townley provided

fair notice to Dominguez, Vasquez, Mansell, and Rivera

of their constitutional duty to intervene. See 45 F.3d

914 (5th Cir. 1995). In Hale, we held that “an officer

who is present at the scene and does not take reasonable measures to protect a suspect from another officer’s

use of excessive force may be liable under section

1983.” Id. at 919. There, a defendant-officer “stood by

and laughed” while another officer assaulted Billy

Hale. Id. at 917. We agreed that liability under § 1983

attaches when a bystander-officer “had a reasonable

opportunity to realize the excessive nature of the force

and to intervene to stop it.” Id. at 919. The officers had

a reasonable opportunity to intervene because they

were “present at the scene” and their laughter supported an inference of “acquiescence in the alleged use

of excessive force.” Id.

We begin with Vasquez and Dominguez. It is undisputed that each Officer stood mere feet away from

Timpa throughout the fourteen-minute duration of the

restraint. Each Officer was trained to “ensure that[,]

as soon as subjects are brought under control, they are

App. 35

placed in an upright position . . . or on their side.” Both

testified that they were aware of the risks of holding

an arrestee in the prone restraint position. The Officers do not contend that Vasquez or Dominguez lacked

reasonable opportunity to intervene. Indeed, both officers stood by, observed Timpa suddenly lose consciousness, expressed surprise, and then made jesting

comments. That both officers “stood by and laughed”

while Dillard continued to kneel on an incapacitated

arrestee supports an inference of “acquiescence in the

alleged use of force.” Hale, 45 F.3d at 917, 919. Questions of fact preclude summary judgment as to the

bystander liability claims against Vasquez and

Dominguez.

We now turn to Supervising Officer Mansell and

Rivera. Bystander liability is available only when an

officer is present during an alleged constitutional violation. See Bartlett, 981 F.3d at 343. The Officers contend that Mansell and Rivera were absent when Timpa

became subdued and thus, neither officer can be liable for failing to intervene. The record supports that

Rivera left the scene approximately two-and-a-half

minutes before Timpa stopped moving his legs and

that he remained absent until after Dillard released

the restraint. Rivera thus lacked a reasonable opportunity to intervene and is entitled to qualified immunity.

Mansell presents a tougher case. Thirty-four seconds after Timpa became subdued, he returned to his

patrol car “a few feet away” and sat “with the car door

open” while he ran a check on Timpa’s license. He

App. 36

testified that he did not hear Vasquez and Dominguez

mock Timpa for losing consciousness. But he was observing Timpa for the critical half-minute when Timpa

suddenly lost consciousness. Moreover, the record supports an inference that Mansell was aware Timpa had

become incapacitated. When Timpa lost consciousness,

Dominguez said to Mansell: “So what’s the plan? You’re

[in charge] out here, sir.” Mansell responded that the

officers should “strap [Timpa] to the gurney” and then

made jesting comments before stepping away to check

Timpa’s license. A jury could find that Mansell remained present on the scene and acquiesced in the violation of Timpa’s Fourth Amendment rights.

Genuine disputes of material fact preclude summary judgment on the claims of bystander liability

against Officers Mansell, Dominguez, and Vasquez.

Summary judgment was properly granted to Officer

Rivera.

*

*

*

We REVERSE the district court’s grant of summary judgment on the claim of excessive force against

Officer Dillard and the claims of bystander liability

against Officers Mansell, Vasquez, and Dominguez.

We AFFIRM the district court’s grant of summary

judgment on the claim of bystander liability against

Officer Rivera.

App. 37

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

VICKI TIMPA, et. al.,

Plaintiff,

v.

DUSTIN DILLARD, et. al.,

Defendant.

§

§

§

§

§

§

§

Civil Action No.

3:16-CV-3089-N

FINAL JUDGMENT

(Filed Aug. 19, 2020)

By separate Memorandum and Opinion and Order

dated July 7, 2020, the Court granted summary judgment to Defendants Dustin Dillard, Danny Vasquez,

Raymond Dominguez, Domingo Rivera, and Kevin

Mansell (collectively, “Defendants”) on Plaintiffs’

claims of excessive force, denial of medical care, bystander liability, and supervisor liability. By Order of

August 19, 2020, the Court granted interlocutory default judgment for Plaintiffs K.T. and Vicki Timpa

against Defendants Glenn Johnson and Criminal Investigative Unit (collectively, “Default Defendants”).

It is, therefore, ordered that Plaintiffs take nothing against on their claims against Defendants, and

those claims are dismissed with prejudice. It is further ordered that K.T. has judgment jointly and severally against Default Defendants in the amount of

$10,000,000; it is further ordered that Timpa has

App. 38

judgment jointly and severally against Default Defendants in the amount of $2,000,000; it is further

ordered that all awards of money damages bear postjudgment interest at the rate of .14% simple per annum. All relief not expressly granted is denied. This is

a final judgment.

Signed August 19, 2020.

/s/ David C. Godbey

David C. Godbey

United States District Judge

App. 39

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

VICKI TIMPA, et al.,

§

§

Plaintiffs,

§

v.

§

§

DUSTIN DILLARD, et al.,

§

Defendants.

§

Civil Action No.

3:16-CV-3089-N

MEMORANDUM OPINION AND ORDER

(Filed Jul. 6, 2020)

This Memorandum Opinion and Order addresses

Defendants Dustin Dillard, Danny Vasquez, Raymond

Dominguez, Domingo Rivera, and Kevin Mansell’s (collectively, “Defendants”) motion for summary judgment

on qualified immunity [150].1 For the reasons below,

the Court determines that the claims Plaintiffs raise

are either unsupported by the summary judgment evidence or barred by the doctrine of qualified immunity

and grants the motion.

1

The Court is 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 newspapers.

App. 40

I.

ORIGINS OF THE SECTION 1983 LAWSUIT

A.

The 911 Calls

On August 10, 2016, the City of Dallas 911 Center

received four calls precipitating the police officer Defendants’ interaction with decedent Tony Timpa

(“Timpa”). Timpa initiated the first 911 call, telling the

operator that he was a thirty-two-year-old male, that

he was afraid of a man he was with, and that he was

“having a lot of anxiety.” Defs.’ Appx. Ex. B-1 [151]. He

also disclosed that had schizophrenia, bipolar disorder,

depression, and anxiety and that he had not taken his

medications that day. Id. After Timpa’s call ended abruptly, the 911 operator called him back. Id. at Ex. 1-C.

Multiple car horns are audible at the 4:20 minute

mark during this call. Id. Timpa became agitated and

can be heard arguing with several males. Id.

A motorist also placed a 911 call reporting a white

male “running up and down the highway on Mockingbird . . . and stopping traffic. I almost hit him.” Id. at

Ex. 1-D. She states that the man stood in front of a

Dart bus, stopped it, and began climbing it. Id. A private security guard called as well, echoing the female

caller’s reports that a man was running in the middle

of Mockingbird Lane, jumping on a DART bus, and

yelling that someone is trying to kill him. Id. at Ex. 1E. He also stated that he believes the man “is on something.” Id.

App. 41

B. The Officers Respond

to West Mockingbird Lane

The Dallas Police Department (“DPD”) dispatcher

informed officers that there was a crisis intervention

training (“CIT”)2 situation at 1728 West Mockingbird

Lane involving a white male with schizophrenia who

was off his medications. Mansell responded and arrived at 10:36 p.m. Intervenor’s Resp. Brief 9 [164]. He

requested backup, stating that Timpa “is in traffic on

Mockingbird, and he’s definitely going to be a danger

to himself.” Defs.’ Appx. Ex. 1-G [151]. Mansell called

for an ambulance before exiting his patrol car. Id. at

Ex. 1-L; 165–66. Despite being handcuffed, Timpa repeatedly attempted to roll into the right lane of the

road—where vehicles were still driving—and succeeded at one point, requiring Mansell and one or both

of the security guards to lift him back to the roadside.3

Id. at 167–68.

2

A CIT call indicates that the 911 operator believes the situation involves a citizen who may be experiencing mental health

issues. Defs.’ Appx. 164, 194 [151].

3

The Intervenor asserts that the body cam recordings do not

show this. However, only Dillard, Vasquez, and Rivera recorded

the situation on their body cameras. The earliest of these officers

arrived seven minutes after Mansell was on the scene, and their

body cameras could not have captured events that occurred prior

to their arrival. Further, as Vasquez walks up, his body cam records Mansell as stating, “We’ve been rolling around in the street

and everything.” Id. at Ex. A-1 0:36–0:38. Because there is no evidence contradicting Mansell’s deposition testimony or his statement captured by the body cam, the Court holds there is no

genuine dispute of fact on this point.

App. 42

Approximately seven minutes after Mansell arrived, paramedics arrived with Dillard and Vasquez

pulling up shortly after them. Timpa was handcuffed

and sitting on the ground between a bus stop bench

and the road. He was unresponsive to the officers’ attempts to calm him and repeatedly yelled “you’re

gonna kill me!” and “help!” before lurching towards the

street. Id. at Ex. A-1 0:50–1:24. Dillard and Vasquez

then rolled him onto his stomach while a security

guard restrained his legs. Id. at 1:24–2:05. Dominguez

arrived roughly three minutes later, followed closely by

Rivera.

C.

Timpa’s Restraint

Dillard restrained Timpa by placing his left knee

on Timpa’s upper back and left hand between Timpa’s

shoulders with his right hand on Timpa’s shoulders intermittently. Id. at 1:30. This restraint lasted roughly

fourteen minutes. Id. at 1:30–15:16. Vasquez assisted

Dillard by placing his left knee on Timpa’s lower back

and right knee on his buttock for roughly 160 seconds.

Id. at 1:44–3:55. When Timpa continued to yell, Dillard

asked, “What did you take today?” Timpa replied,

“Coke,” although Dillard testified that he did not hear

this. Id. at 1:43; Appx. 76. Dillard repeated his question, and Timpa responded with incoherent sounds. Id.

at 1:45–2:00.

Roughly two minutes into the restraint, Paramedic James Flores (“Flores”), who was standing behind the bus bench with Paramedic Curtis Burnley

App. 43

(“Burnley”), approached to take Timpa’s vitals. Id. at

2:26–2:53; Appx. 253. The paramedics had been standing nearby since Timpa’s initial restraint and can be

seen in video background intermittently. Id. at 1:30–

1:40, 2:08–2:33, 3:38–4:10. While walking towards

Timpa, Paramedic Flores warned Dillard, “I’m right

behind you, don’t jump up.” Id. at 2:33–2:38. Dillard

moved to the right after another officer warned that

the paramedic was behind him and suggested “twist

your body off to the right.” Id. at 2:38–2:40. Timpa

struggled and yelled, “I can’t live! I can’t live!” Flores,

unable to get a reading, stepped back and said, “Damn,

that’s not gonna work.” Id. at 2:46–2:53; Appx. 213,

254. Timpa shouted and attempted to thrust his body

forward. Id. at 2:50–3:05. After Dillard and the security guard reassured him, he said “Ok, I stop! I stop, I

stop! Now please leave my feet alone!” and then kept

still for roughly twenty seconds. Id. at 3:06–3:33.

Timpa continued to shout and struggle, at one

point maneuvering his legs out from under the bus

bench and kicking, causing Dillard to lurch. Id. at

4:02–4:08. Dominguez left to retrieve leg restraints

from Vasquez’s patrol car while Vasquez attempted to

swap the security guard’s cuffs for an officer’s pair so

“we don’t have to worry about it once he’s up.”4 Id. at

4:08–4:24; Appx. 3. Vasquez had difficulty swapping

the handcuffs and complained that Timpa was moving

4

See also id. at 170, 214 (explaining DPD officers are taught

that when taking custody of a pre-handcuffed person they should

replace the handcuffs with their handcuffs before transporting

the person).

App. 44

too much, stating “This is gonna be a pain in the ass.

He’s swinging his hands.” and “Stop it. Tony, stop

fighting me! I’m just trying to take this handcuff off.”

Id. at 4:50–7:16; see Appx. at 175, 219, 226–27, 230.

Mansell retrieved a flashlight to assist Vasquez, and

Vasquez succeeded in switching handcuffs and doublelocking them to prevent Timpa from cinching them. Id.

at 7:19–7:46.

While Vasquez and Mansell focused on the handcuffs, Dominguez and Rivera worked to place zip ties

around Timpa’s ankles, during which process Timpa

kicked them both several times. Id. at 4:33–7:32; see id.

at 8:07–8:14, Appx. 5, 12, 127. Flores approached a second time, and Dillard asked, “Do you want me to roll

him over?” Id. at 8:30–8:33. Flores declined stating,

“Before y’all move him, if I can just get in right here,

and see if I can just get to his arm.” Id. at 8:32–8:40.

Dillard replied “go ahead, man” and shifted his knee to

Timpa’s shoulder and right arm. Id. at 8:41–8:42. Paramedic Flores succeeded in attaching a blood pressure

cuff and pulse oximeter. Id. at 8:40–10:02. While the

paramedic took his vitals, Timpa intermittently moved

his head from side to side, made incoherent sounds,

and chanted “kill me,” “I need to die.” Id. at 9:02–10:05.

Timpa then began yelling “We’re gonna die. Help me!”

and started shouting “Help me!” repeatedly. Id. at

10:21–11:48. Paramedic Flores removed the pulse oximeter and left to prepare a sedative. Id. at 10:36–

10:37; Appx. 249, 57. At this point, Timpa had a pulse

of 100 beats per minute and blood pressure of 150/90,

App. 45

and Paramedic Flores “wasn’t alarmed or alerted by

that.” Id. at 27, 266.

As Timpa continued to yell “Help me!” repeatedly

without responding to the officers’ questions, the security guard noted, “This ain’t just normal crazy,

man. He’s on something.” Id. at 11:17–11:21. Vasquez

agreed, and Dillard concluded, “Yeah, he took something.” Id. at 11:17–11:28, 12:00. At this point, Timpa

was grunting and eventually became quiet and still.

When Paramedic Burnely asked if Timpa could walk

to the ambulance, others responded, “I highly doubt it”

and “They zip-tied his feet. He’s a kicker, man.” Id. at

12:37–12:43. Dominguez then asked, “Tony, you still

with us?” Id. at 13:02–13:04. Someone responded,

“He’s breathing.” “I just wanted to make sure he was

still breathing. ‘Cause his nose is buried in that,”

Dominguez clarified. Id. at 13:20–13:24. “I think he’s

just asleep,” Dillard replied. “Yeah, he’s still breathing.

He just snorted. He’s out cold.” Id. at 12:30–13:26;

Appx. 2, 7, 131, 234–35. An officer remarked “If I were

squirming that much I’d be sleeping too.” Id. at 13:45–

13:47. Dominguez and Vasquez then engaged in a series of jesting comments, such as “Hey, time for school!

Wake up!” to which Timpa did not respond. Id. at

14:06–14:30.

Paramedic Flores returned to administer the sedative, and Timpa’s head jerked in response to the injection. Dillard remarked, “Oh, there he comes.” Id. at 14:39–

11:49; Appx. 257. After waiting roughly twenty seconds, Vasquez lifted his hand from Timpa’s back, and

Dillard moved off him shortly after. Id. at 15:09–15:16.

App. 46

At a paramedic’s prompting, the Defendants rolled

Timpa onto his back and lifted him onto the gurney. Id.

at 15:34–16:00. When they placed Timpa on the gurney, his head and torso rolled off the side uncontrollably. Id. at 16:00–16:32. Timpa’s head hung to the side

as Paramedic Burnley strapped him onto the gurney,

leading Dillard to ask, “Is he knocked out, or . . . he

ain’t dead, is he?” Id. at 16:11. Vasquez replied in the

negative, but Dillard again asked, “He didn’t just die

down there, did he?” “Is he breathing?” Id. at 16:19–

16:27. Dominguez performed a sternum rub as the paramedics wheeled Timpa toward the ambulance, and

when Timpa did not respond, Dillard exclaimed, “I

hope I didn’t kill him.” Id. at 16:27–16:34. Some of the

other Defendants laugh and respond, “What’s this ‘we’

you are talking about?” “We ain’t friends.” Id. at 16:38–

16:44.

After Timpa was loaded in the ambulance for

treatment, Paramedic Burnley announced, “Yeah, he’s

not breathing.” Id. at 17:14–17:32. Dominguez began

performing chest compressions. Mansell, who had left

to call Timpa’s family and ask what medications he

was supposed to be taking, returned at this point. Flores bluntly stated that Timpa was dead, causing Mansell to exclaim “He’s what?!” and end the call with

Timpa’s mother. Id. at 17:35–17:42.

Timpa was taken to Parkland Hospital, where

staff confirmed his death. Id. at 3. On November 3,

2016, Plaintiffs Vicki Timpa, individually and as representative of the state of Anthony Timpa, and Cheryll

Timpa, individually and as next friend of K.T., a minor

App. 47

(“Plaintiffs”) filed this section 1983 lawsuit against the

Defendant Officers as well as several other defendants.

Intervenor Joe Timpa (“Intervenor”) later joined the

lawsuit.5

D.

Timpa’s Cause of Death

The Dallas County medical examiner who conducted Timpa’s autoposy determined that Timpa died

due to “sudden cardiac death due to the toxic effects of

cocaine and physiological stress associated with physical restraint.” She acknowledged that due to “his

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 the majority of the restraint.)” Id. at 35.

Plaintiffs’ expert opined that Timpa died due to mechanical asphyxia, and while Defendants’ experts disagree, the Defendants assume Plaintiffs’ expert is

correct for purposes of this motion. Id. at 41; see Defs.’

Summary Judgment Mot. 23 [150].

II.

A.

LEGAL STANDARDS

Summary Judgment Motion

Courts “shall grant summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

5

Because the Intervenor and Plaintiffs raise most of the

same claims and arguments, references to “Plaintiffs” in this

Opinion include the Intervenor unless otherwise stated.

App. 48

as a matter of law.” Fed. R. Civ. P. 56(a); Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In making

this determination, courts must view all evidence and

draw all reasonable inferences in the light most favorable to the party opposing the motion. United States v.

Diebold, Inc., 369 U.S. 654, 655 (1962).

The moving party bears the initial burden of informing the court of the basis for its belief that there

is no genuine issue for trial. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Once the movant has made

the required showing, the burden shifts to the nonmovant to establish that there is a genuine issue of

material fact such that a reasonable jury might return

a verdict in its favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). Factual

controversies are resolved in favor of the nonmoving

party “ ‘only when an actual controversy exists, that is,

when both parties have submitted evidence of contradictory facts.’ ” Olabisiomotosho v. City of Houston, 185

F.3d 521, 525 (5th Cir. 1999) (quoting McCallum Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89,

92 (5th Cir. 1995)).

B. Section 1983 Claims

and Qualified Immunity

Section 1983 authorizes plaintiffs to bring claims

“against persons in their individual or official capacity,

or against a governmental entity.” Pratt v. Harris Co.,

Tex., 822 F.3d 174, 180 (5th Cir. 2012) (internal quotation omitted). A party has a colorable claim under

App. 49

section 1983 if the plaintiff can “(1) allege a violation

of a right secured by the Constitution or laws of the

United States and (2) demonstrate that the alleged

deprivation was committed by a person acting under

color of state law.” Whitley v. Hanna, 726 F.3d 631, 638

(5th Cir. 2013).

The doctrine of qualified immunity provides a defense against these claims to government officials who

“make reasonable but mistaken judgments about open

legal questions” and shields “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 733 (2011). This is an

exacting standard. To overcome it, plaintiffs bear the

heavy burden of showing that the official both violated

a constitutional or statutory right and that this right

was clearly established in the law prior to the challenged conduct occurring. Pearson v. Callahan, 555

U.S. 223, 232 (2009); Collier v. Montgomery, 569 F.3d

214, 217 (5th Cir. 2009). Courts “do not require a case

directly on point, but existing precedent must have

placed the statutory or constitutional question beyond

debate.” Ashcroft, 563 U.S. at 741; see also Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (“The dispositive question is whether the violative nature of particular conduct is clearly established.”) (emphasis in opinion)

(internal quotation omitted).

App. 50

III. THE COURT DETERMINES THAT

QUALIFIED IMMUNITY BARS ALL CLAIMS

RAISED AGAINST THE DEFENDANTS

Plaintiffs allege excessive force,6 denial of medical

care, bystander liability, and supervisor liability claims.7

For the reasons below, the Court holds that each of

these claims are barred by qualified immunity as

against these Defendants.

6

Plaintiffs devote roughly one page of their response brief to

arguing that prone restraints constitute “deadly force” and must

be assessed under this subset of excessive force. Pltfs.’ Resp. Brief

29–30 [156]. The Court disagrees. Plaintiffs cite to one Fifth Circuit case which states that while “guns represent the paradigmatic example of ‘deadly force,’ ” courts have held a variety of

“police tools and instruments” may meet that definition. Gutierrez

v. City of San Antonio,139 F.3d 441, 446 (5th Cir. 1998). The

Court cites to multiple cases, including a Seventh Circuit case acknowledging prone restraints as deadly force. Id. The Court does

not adopt these positions, however, and there is no Fifth Circuit

case that directly holds that prone restraints constitute a form of

deadly force. The closest the Court gets is its holding that hogtying may amount to deadly force. Id. Rather, there are multiple

Fifth Circuit opinions holding that prone restraints do not even

constitute excessive force. See infra III.A.1. Consequently, the

Court declines to treat the alleged Fourth Amendment violations

as deadly force claims.

7

Defendants’ opening summary judgment brief assumed

that Plaintiffs’ complaint also alleged an unlawful seizure claim.

The complaint does not expressly raise such a claim, however, and

neither Plaintiffs nor Intervenor rebut Defendants’ arguments on

this point. The Court thus determines that to the extent the complaint suggests an unlawful seizure claim, the Defendants are entitled to summary judgment on it.

App. 51

A.

Excessive Force Claims

An official’s use of excessive force in effecting an

arrest violates the Fourth Amendment’s protection

against unreasonable seizures and, if established, satisfies the first prong of the qualified immunity analysis. Pratt, 822 F.3d at 181. The Fifth Circuit has

observed that “overcoming qualified immunity is especially difficult in excessive-force cases.” Morrow v.

Meachum, 917 F.3d 870, 876 (5th Cir. 2018). This is

true because in excessive force cases, “the result depends very much on the facts of each case, and thus

police officers are entitled to qualified immunity unless

existing precedent squarely governs the specific facts

at issue.” Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018).

Here, the Court determines that Plaintiffs’ excessive force claims cannot succeed, even assuming the

Defendants’ conduct constitutes excessive force, because there was no law clearly establishing Defendants’ conduct as a constitutional violation prior to

August 10, 2016—the date that the challenged conduct

occurred. The Court consequently does not decide

whether Defendants’ conduct amounts to a Fourth

Amendment violation. See Pearson, 555 U.S. at 236

(permitting courts to address the prongs of the qualified immunity inquiry in whichever order they chose

and not requiring courts to address both prongs if either is dispositive); Thompson v. Mercer, 762 F.3d 433,

437 (5th Cir. 2014).

1. Fifth Circuit caselaw decided prior to August 2016 does not clearly establish Defendants’

App. 52

conduct as a Fourth Amendment violation—Conduct is clearly established as a constitutional violation

only when there is either (a) binding authority or (b) a

robust consensus of persuasive authority sufficient to

alert every reasonable officer that the challenged conduct did in fact violate the plaintiff ’s constitutional

rights. Morgan v. Swanson, 659 F.3d 359, 371 (5th Cir.

2011) (en banc). The “focus is on whether the officer

had fair notice that her conduct was unlawful” and

“must be undertaken in light of the specific context of

the case, not as a broad general proposition.” Brosseau

v. Haugen, 543 U.S. 194, 198 (2004) (internal quotation

omitted); see also Mullenix, 136 S. Ct. at 308 (“[S]pecificity is especially important in the Fourth Amendment

context, where the Court has recognized that [i]t is

sometimes difficult for an officer to determine how the

relevant legal doctrine, here excessive force, will apply

to the factual situation.”) (internal quotation omitted).

Here, there is no binding authority from either the

Supreme Court or the Fifth Circuit holding that prone

restraint is a per se Fourth Amendment violation or

that it is a violation when performed in the manner of

Defendants’ restraint of Timpa. See Castillo v. City of

Round Rock, 177 F.3d 977 (5th Cir. 1999) (“Restraining

a person in a prone position is not, in and of itself, excessive force when the person restrained is resisting

arrest.”) (internal quotation omitted). Rather, of the

four most analogous Fifth Circuit cases involving

prone restraints that were decided prior to August

2016, the Court held in three of those instances that

there was no Fourth Amendment violation. Plaintiffs

App. 53

rely on the fourth and oldest of these cases, Gutierrez

v. City of San Antonio, to argue that clearly established

Fifth Circuit law prohibits Defendants’ restraint used

on Timpa.8 139 F.3d 441 (5th Cir. 1998). Gutierrez is

inapplicable to this case, however, whether examined

in the context of more recent caselaw or considered in

isolation.

Gutierrez stands for the “very limited” proposition

that officers may use excessive force “when a drug-affected person in a state of excited delirium is hog-tied

and placed face down in a prone position.” Id. at 451.

Despite Gutierrez’s admission that he had “shot some

bad coke,” officers hog-tied and placed him face down

in the back seat of a patrol car while driving to the hospital, during which time they did not monitor him. Id.

at 443, 449.

The Court focused specifically on the officers’ use

of a hog-tie restraint on Gutierrez—a type of restraint

that was not employed in this case and one that is arguably more aggressive, as it pulls the feet towards the

8

Plaintiffs and Intervenor also suggest that expert testimony and policies and training used by DPD and other law enforcement organizations establishes that Defendants’ conduct

was clearly established as a constitutional violation prior to August 2016. Pltfs.’ Resp. Brief 28, 33–36 [156]; Intervenor’s Resp.

36–39 [164]. While department policies have been held sufficient

to create a question of fact as to whether the use of force was reasonable, Gutierrez, 139 F.3d at 449–51, these sources are not

sufficient to show that conduct was legally established as a constitutional violation. Morgan, 659 F.3d at 371 (requiring either

binding legal authority or a robust consensus of persuasive authority to satisfy clearly established law prong).

App. 54

back and places the legs at a ninety-degree angle in an

‘L’ shape. Id. at 443. Further, the Fifth Circuit explicitly cabined Gutierrez’s holdings to its narrow facts,

both in that case and in subsequent cases involving

hog-tie prone restraints where the Court nevertheless

determined that qualified immunity applied.

Pratt v. Harris County, Texas, is the most notable

such case. 822 F.3d 174 (5th Cir. 2016). Officers encountered Pratt at the scene of a minor accident, where he

exhibited bizarre behavior and continued to walk away

from the scene despite officer requests that he stop. Id.

at 178. After Pratt ignored multiple requests and

warnings to comply and evaded their attempts to restraint him, the officers deployed their tasers six times.

Id. Even after being handcuffed, Pratt kicked an officer, prompting an officer to tase him again. Id. The

officers also placed Pratt in a hog-tie prone restraint.

Id. at 179. While the Fifth Circuit acknowledged that

“hog-tying is a controversial restraint,” it emphasized

that the Gutierrez holding was heavily bound to its specific factual context. Id. at 182. The Court also found it

significant that unlike the officers in Gutierrez, the officers in Pratt did not know the suspect was on cocaine,

and the Court ultimately held that the officers’ conduct

in Pratt was not excessive force. Id. at 182–83.

The Fifth Circuit likewise distinguished Gutierrez

when it applied qualified immunity in Wagner v. Bay

City. 227 F.3d 316, 318–20 (5th Cir. 2000). The suspect

in Wagner had been belligerent in a restaurant and

swung at an officer who was trying to apprehend him.

Id. at 318. After pepper spraying and handcuffing the

App. 55

suspect, who was still struggling, two officers knelt on

his back while one “kept pushing [suspect’s] neck and

head to the ground with a stick.” Id. at 319. When additional officers arrived, the officers placed the suspect

in the back of a patrol car on his stomach and transported him to a jail; though he appeared unconscious,

the officers did not speak to him or check for injuries.

Id.

The Wagner Court discussed Gutierrez in detail,

ultimately distinguishing it on the basis that “perhaps

most importantly, as defendants note, [decedent] was

not ‘hog-tied,’ and, as a result, the ‘very limited’ holding of Gutierrez cannot support a finding that [the officers] violated clearly-established law.” Id. at 322–23.

The Court also noted the absence of cocaine and determined that the use of pepper spray and a choke hold

were not clearly established as excessive force. Id. at

321, 323–24.

Castillo v. City of Round Rock, decided one year

after Gutierrez, is also illuminating. 177 F.3d 977 (5th

Cir. 1999). There the Fifth Circuit unequivocally held

that there was no excessive force when an officer and

male bystander together sat on a prone, handcuffed

suspect’s back for four to six minutes while three other

officers placed flex cuffs on his legs. Id. at *2. The officer also placed weight on the suspect’s neck and head

for five to ten minutes. Id. During this time, Castillo

exclaimed he was going to die. Id. The Court held the

circumstances—which included Castillo raising a beer

bottle at an officer and fighting with him prior to being

handcuffed, and kicking and yelling even after being

App. 56

handcuffed and placed in a prone position—merited

the force used. Id. at *2–*4.

On balance, the facts of this case align more

closely with those in Pratt, Wagner, and Castillo and

differ in critical points from those in Gutierrez. Here,

Timpa presented a danger to himself and others by

running across traffic on Mockingbird Lane, a threelane road. At least one motorist reported nearly colliding with Timpa and said Timpa also halted and

climbed a DART bus. Mansell describing Timpa to the

dispatcher as “a danger to himself,” and called an ambulance before ever leaving his patrol car. While Timpa

was handcuffed, Timpa was nonresponsive to the officer’s questions, yelled uncontrollably, and repeatedly

attempted to roll into the right lane of the road, ultimately succeeding and necessitating efforts by Mansell and the security guards to move him to safety. And

prone restraint was not the Defendants’ first resort—

they did not roll Timpa over until he again lurched towards the road, after Vasquez and Dillard’s arrival.

Even after being rolled onto his stomach, Timpa

continued to yell, toss his head, and struggle to move

his torso and limbs. He repeatedly kicked at officers.

See Pratt, 822 F.3d at 184 (underscoring Pratt’s “ ‘on

again, off again’ commitment to cease resisting, recurring violence, and the threat he posed while unrestrained”). Further, paramedics were present during

the entirety of the Defendants’ roughly fourteenminute prone restraint of Timpa and never indicated

that the Defendants were harming Timpa or that

they should move him. Paramedic Flores specifically

App. 57

declined Dillard’s offer to roll Timpa over and indicated that he should not be moved until Paramedic Flores had an opportunity to take his vitals. And Paramedic

Flores was not concerned by Timpa’s blood pressure

and pulse, which he took roughly five minutes before

Defendants ceased the prone restraint. These facts distinguish this case from Gutierrez, where the paramedics did not observe the officers’ restraint of Gutierrez

and where officers hog-tied Gutierrez, placed him face

down in the back seat of a patrol car for half an hour,

and did not monitor him while he was in this position.

The fact that the Defendants knew of Timpa’s cocaine consumption is the biggest factual distinction

between this case and Castillo, Wagner, and Pratt. Because there is a fact question regarding whether Defendants knew Timpa had used cocaine, the Court

views the facts in Plaintiffs’ favor and assumes that

Defendants knew of his cocaine usage at the latest

when Timpa responded to Dillard’s first inquiries.9

Plaintiffs insist that the Defendants’ awareness of

Timpa’s drug use means that Gutierrez clearly establishes their restraint of Timpa as unconstitutional.

The Plaintiffs correctly note that in distinguishing

Gutierrez, the Court in Pratt emphasized the officers’

unawareness of the decedent’s drug use at the time

9

Defendants admit that around the 1:45 mark, the body cam

footage does suggest that Timpa replied “coke” to Dillard’s initial

question “what did you take?” But Dillard also testified that he

did not hear this response and continued to ask Timpa what he

had taken. The body cam footage shows the Defendants agreeing

later, however, that Timpa was “on something.”

App. 58

that they used prone restraint and hog-tying. But

Plaintiffs are wrong to assume that Defendants’

knowledge of Timpa’s cocaine use is dispositive here.

While the officers in Pratt employed hog-tying, the

restraint method at issue in Gutierrez, Timpa was

never hog-tied. This fact is critical. Gutierrez involved

the fatal combination of officers who used a hog-tie restraint despite knowledge of the suspect’s cocaine

consumption. Pratt has already demonstrated that

the presence of only one of these factors—even if the

primary factor, hog-tying—does not present enough

similarity to Gutierrez for it to constitute clearly established law. Adherence to the Fifth Circuit’s qualified

immunity analysis in Pratt, as well as the Supreme

Court’s frequent exhortation “not to define clearly established law at a high level of generality,” means that

Gutierrez does not govern this case. Ashcroft, 563 U.S.

at 742.

Plaintiffs note some ways in which this case differs from Castillo, Wagner, and Pratt. But it is not

enough to merely note dissimilarities between the Defendants’ conduct towards Timpa and the conduct in

cases where the Court did not find a constitutional violation. This does not meet Plaintiffs’ burden to identify law that affirmatively establishes that conduct like

Defendants’ conduct is unconstitutional. Here, we have

several cases holding similar conduct constitutional

and one case self-identifying as a narrow holding that

hog-tying may be unconstitutional under specific facts.

And as stated above, the Court cannot read Gutierrez

as governing this case. See also Morrow, 917 F.3d at

App. 59

879 (“Cases cutting both ways do not clearly establish

the law.”).

Plaintiffs also argue that Timpa did not resist

the officers.10 Pltfs.’ Resp. Brief 41 [156]. In support,

they claim that Defendants “urge only that [Timpa]

‘squirmed’ at times”11 and assert that Defendants’ expert testified in a different case that “such movements”

are just reflexive attempts to breathe. Id. The Court is

unpersuaded. Although Timpa was not struggling for

the entire duration of Defendants’ restraint of him, the

body cam video and audio shows that he continuously

moved and yelled in contravention of the officers’ directives, kicked at Officers Dominguez and Rivera, and

was struggling enough that Paramedic Flores’s first attempt to take his vitals was unsuccessful. The law

clearly established prior to August 2016 does not suggest Timpa’s reaction during his restraint falls short of

10

Plaintiffs briefly mention the custodial death report, which

indicated that Timpa did not threaten, hit, or fight officers or resist being handcuffed or arrested. Pltfs.’ Appx. 65–67 [157]. This

report, however, was drafted by an officer who was not present at

the scene and contradicts the events shown on the body cam videos. The Court thus holds that it does not create an issue of fact.

See Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011)

(“Although we review evidence in the light most favorable to the

nonmoving party, we assign greater weight, even at the summary

judgment stage, to the facts evident from video recordings taken

at the scene.”).

11

Even if the Court were to consider only the comments

made by Defendants during their restraint of Timpa and disregard their deposition testimony, the body cam video shows this is

not entirely accurate. Defendants are heard describing Timpa as

“a kicker” and frequently request that he “be still” or “calm down.”

Defs.’ Appx. Ex. A-1 [151].

App. 60

resistance,12 particularly in view of Pratt’s determination that use of prone restraint was not unconstitutional even where resistance was “on again, off again.”

Pratt, 822 F.3d at 184; see also Estate of Aguirre v. City

of San Antonio, 2017 WL 6803374, at *10 (W.D. Tex.

2017) (concluding that a prone suspect actively resisted police when he “continued to strain and bob up

and down . . . when he was face-down on the ground,

continued to yell and move his head from left to right,

as well as his body”). Courts “need not rely on the

plaintiff ’s description of the facts where the record discredits that description but should instead consider

the facts in the light depicted by the video.” Carnaby v.

City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (internal quotation omitted).

Plaintiffs cite no law for their related argument

that any “resistance” was merely Timpa’s struggle for

12

Plaintiffs cite three cases on the constitutionality of officers’ use of force for the proposition that Timpa’s conduct constituted “passive resistance” that the Fifth Circuit has found

insufficient to justify officers’ use of force in other instances.

Trammel v. Fruge, 868 F.3d 332 (5th Cir. 2017); Hanks v. Rogers,

853 F.3d 738 (5th Cir. 2017); Deville v. Marcantel, 567 F.3d 156

(5th Cir. 2009). Two of these cases were decided after August

2016, the date the Defendants restrained Timpa, and consequently may not be considered in the clearly established law analysis. See Morgan, 659 F.3d at 371 (stating that law must be

clearly established “at the time of the challenged conduct”) (emphasis added). The remaining case differs significantly from the

facts of this case and is not dispositive to the Court’s analysis.

Deville, 567 F.3d at 167–68 (qualified immunity did not apply

where officer broke car window and forcefully grabbed suspect

stopped for minor traffic violation where there was a question of

fact as to whether she physically resisted order to exit).

App. 61

air rather than noncompliance. In fact, the Fifth Circuit rejected this same approach when it held that the

prone restraint used in Castillo was constitutional.

Castillo, 177 F.3d at *3 (“That Castillo’s struggle might

eventually have become a panic reaction to his positional asphyxia changes neither its perception to reasonable 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.”). Even

assuming Plaintiffs’ description is accurate, the Court

is unconvinced by Plaintiffs’ citation to an expert’s testimony in a different case with different factual circumstances.

Lastly, Plaintiffs reference a 2014 opinion by this

Court that held that it was “clearly established that

putting substantial or significant pressure on a suspect’s back while that suspect is in a face-down prone

position after being subdued or incapacitated constitutes excessive force.” Pena v. Dallas Co. Hosp. Dist.,

2014 WL 12648507 (N.D. Tex. 2014). That case is inapplicable for three reasons. First, the opinion was reversed by the Fifth Circuit, although the circuit’s

rationale for reversal did not address this Court’s excessive force determination. Pena v. Givens, 637 F.

App’x 775, 779–81 (5th Cir. 2015). Second, this Court’s

Pena decision did not address either Castillo or Wagner, both of which suggest that within the Fifth Circuit

it is not excessive force to place weight on a prone suspect if the suspect resists even after being incapacitated by handcuffs. And third, Pena relied on out-ofcircuit authority but was decided before the circuit

App. 62

split on this issue became apparent with the Eighth

Circuit’s decision in Lombardo v. City of St. Louis. 2020

WL 1915135 (8th Cir. 2020); Pena, 2014 WL 2014 WL

12648507, at *6. Thus, the Court remains unpersuaded

that caselaw within the Fifth Circuit clearly establishes Defendants’ conduct as unconstitutional.

2. Because there is a circuit split on this issue, Plaintiffs’ persuasive authority does not pass

muster as a “robust consensus” clearly establishing the law—The 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. Morgan, 659 F.3d at

372. When plaintiffs rely on “a consensus of persuasive

cases from other jurisdictions” rather than binding authority, the consensus must be “robust.” Morrow, 917

F.3d at 879. The Fifth Circuit recently explained that

it has found even “widespread acceptance” of a doctrine

among other circuits insufficient to clearly establish

law where “the circuits were not unanimous in its contours or its application to a factual context similar to

that of the instant case.” Id. (quoting McClendon v.

City of Col., 305 F.3d 314, 330 (5th Cir. 2002), where

the Court held that a six-circuit consensus was insufficient to clearly establish a doctrine).

Plaintiffs’ argument that there is clearly established law is primarily supported by citations to cases

from the First, Sixth, Seventh, Ninth, and Tenth Circuits. Each of these cases involved prone restraints followed by fatalities or severe injuries, and each court

App. 63

determined that the restraints did or could constitute

excessive force under the facts of the case. Champion

McCue v. City of Bangor, Maine, 838 F.3d 55, 64 (1st

Cir. 2016); Estate of Booker v. Gomez, 745 F.3d 405, 424

(10th Cir. 2014); Abdullahi v. City of Madison, 423 F.3d

763, 765, 769 (7th Cir. 2005); Champion v. Outlook

Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004); Drummond v. City of Anaheim, 343 F.3d 1052, 1061–62 (9th

Cir. 2003). Even if the Court were persuaded that these

cases involved facts sufficiently analogous to Defendants’ conduct, however, they cannot satisfy the Fifth

Circuit’s requirement for a “robust consensus” of persuasive authority because there is a circuit split. Morgan, 659 F.3d at 372; see Morrow, at 917 F.3d at 879. In

contrast to Plaintiffs’ cases, the Eighth Circuit recently

upheld qualified immunity in an excessive force challenge to prone restraint similar to the restraint Defendants’ used on Timpa. Lombardo v. City of St. Louis,

2020 WL 1915135 (8th Cir. 2020).

Officers in Lombardo detained the suspect, Gilbert, in a holding cell and attempted to handcuff him

after they observed erratic behavior. Id. at 1011. Gilbert had not informed the officers that he had taken

methamphetamine. Id. at 1012. After Gilbert began to

struggle, the officers placed him in a prone position,

where he continued to kick and thrash. Id. at 1011–12.

Officers secured his limbs, shoulders, and torso with

their body weight for roughly fifteen minutes before he

stopped resisting; during this time, Gilbert continued

to try to raise his chest up and told the officers to “stop

because they were hurting him.” Id. at 1012. When

App. 64

they rolled him over, he had ceased breathing. Id. The

Eighth Circuit held that “the use of prone restraint is

not objectively unreasonable when a detainee actively

resists officer directive and efforts to subdue the detainee.” Id. at 1013.

So, at best there is a circuit split on the constitutionality of prone restraints when employed as Defendants did here. See Lombardo v. St. Louis City, 361

F. Supp. 3d 882, 905–15 (E.D. Mo. 2019) (providing a

detailed summary of the circuit split on this issue).

This is fatal to Plaintiffs’ reliance on persuasive authority to argue that there is clearly established law

relevant to this case. Because there is no clearly established law holding unconstitutional restraints analogous to the Defendants’ restraint of Timpa, the Court

holds that qualified immunity bars the excessive force

claims against the Defendants.

B.

Claims for Denial of Medical Care

“A pretrial detainee’s constitutional right to medical care, whether in prison or other custody,” is derived

from the Fourteenth Amendment. Wagner, 227 F.3d at

324. When the challenge is based on an official’s “episodic acts or omissions,” the plaintiff must “prove that

the official acted or failed to act with subjective deliberate indifference to the detainee’s needs.” Campos v.

Webb Co., Tex., 596 F. App’x 787, 791 (5th Cir. 2015) (internal quotation omitted). An “action is characterized

properly as an ‘episodic act or omission’ case” if “the

complained-of harm is a particular act or omission of

App. 65

one or more officials.” Tamez v. Manthey, 589 F.3d 764,

769 (5th Cir. 2009).

“Deliberate indifference is an extremely high

standard to meet.” Campos, 596 F. App’x at 792. The

plaintiffs must show that the officer denied or delayed

medical treatment and that this denial “resulted in

substantial harm.” Petzold v. Rostollan, 946 F.3d 242,

249 (5th Cir. 2019). Plaintiffs must also prove that the

official had subjective knowledge of the risk of harm

and subjectively intended that harm to occur. Tamez,

589 F.3d at 770; see also Campos, 596 F. App’x at 793

(“[F]ailure to alleviate a significant risk that [the official] should have perceived but did not is not deliberate

indifference.”) (internal quotation omitted).

Plaintiffs’13 primary arguments boil down to two

points: the Defendants physically blocked the paramedics’ access to Timpa, and the Defendants failed to

follow DPD General Orders, which required that they

perform a five-man takedown.14 Neither assertion is

substantiated by the evidence.

The body cam video shows that Paramedic Flores

was able to approach Timpa at least three separate

times. Defs.’ Appx. Ex. 1-A at 2:23–2:38; 8:31–12:32

13

Intervenor’s brief does not respond to Defendants’ summary judgment challenge to the denial of medical aid claims.

14

A five-man takedown tactic employs five officers, with

“each officer controlling one limb of the subject with the officer’s

body weight, until the suspect can be handcuffed” and thus does

not require weight to be placed on the back of a suspect. Pltfs.’

Appx. 54 [157.1].

App. 66

[151]. At none of these points do any of the Defendants

physically block his access to Timpa. In fact, when

Paramedic Flores first approaches, an officer warns

Dillard, “Don’t jump back, you’ve got a paramedic behind you.”15 Id. at 2:23–2:38. Importantly, Paramedic

Flores’s initial inability to assess Timpa was due to

Timpa’s struggles. Id. at 2:38–2:53; Appx. 213, 254.

Upon Flores’s second approach, Dillard asked him, “Do

you want me to roll him over?” Flores responded “Before y’all move him, if I can just get in right here, and

see if I can just get to his arm.” Id. at 8:32–8:40.

Vasquez replied, “Go ahead, man.” Id. at 8:35–8:40.

Flores successfully took Timpa’s vitals at this attempt

and successfully administered a sedative upon a third

approach. Id. at 14:29–14:42. The Defendants actually

assisted the paramedics in lifting Timpa onto a gurney

after he was sedated. Id. at 15:33–15:46. These interactions suggest that rather than physically block the

paramedics’ access to Timpa, the Defendants attempted to facilitate it.

Plaintiffs also contend that had the officers completed a five-man takedown rather than Dillard’s “prolonged stay on Tony’s back,” the paramedics would

have been able to timely access, sedate, and transfer

Timpa to a medical facility, which would have saved his

life. This is merely conjecture. Plaintiffs have provided

no evidence that the paramedics’ access to Timpa or

their ability to administer a sedative and promptly

15

Dillard also actively encouraged Timpa to cooperate with

the paramedic, stating “He’s trying to help you out, okay? You’re

doing good, but you need to relax.” Id. at 8:44–8:49.

App. 67

transport him were delayed by the Defendants’ prone

restraint. Further, Plaintiffs misstate the requirements of the DPD General Orders. While General Order 903.01 acknowledges that the five-man takedown

is “an effective restraining hold for controlling violent

suspects,” the order does not mandate that officers

“must use” or “shall use” this method exclusively. Pltfs.’

Appx. 6–67 [157.1] (emphasis added).

Lastly, Plaintiffs address Vasquez and Dominguez

in particular, claiming their jokes “served no direct

purpose in securing Tony or obtaining medical attention.” Pltfs.’ Resp. Brief 53 [156]. This allegation misses

the mark. While Vasquez and Dominguez’s commentary may have been offensive, their banter and attitude are not evidence that that they “actually drew the

inference” that they were doing substantial harm to

Timpa by not doing more to obtain medical attention

or that they “subjectively intended that harm to occur”

to Timpa. See Thompson v. Upshur Co., Tex., 245 F.3d

447, 458 (5th Cir. 2001) (“[D]eliberate indifference

cannot be inferred merely from a negligent or even a

grossly negligent response to a substantial risk of serious harm.”). Because the evidence is insufficient to establish the elements of a denial of medical care claim,

much less rebut the defense of qualified immunity, the

Court grants Defendants summary judgment.

C.

Bystander Liability Claims

To establish a section 1983 claim against an officer

on a theory of bystander liability, a plaintiff must

App. 68

establish that the officer “(1) knows that a fellow officer

is violating an individual’s constitutional rights; (2)

has a reasonable opportunity to prevent the harm; and

(3) chooses not to act.” Whitley v. Hanna, 726 F.3d 631,

646 (5th Cir. 2013) (internal quotation omitted). When

defendants raise a qualified immunity defense to bystander liability claims, “the inquiry is whether, under

the law in effect at the time of the arrest, the officers

could have reasonably believed that they were not required to intervene.” Deshotels v. Marshall, 454 F.

App’x 262, 269 (5th Cir. 2011).

Because the Court has already determined that

the underlying right was not clearly established in this

case, the right to have a bystander officer intervene to

prevent a violation cannot be clearly established either. See Goolsby v. District of Columbia, 317 F. Supp.

3d. 582, 595 n.3 (D.D.C. 2018) (“If it was not clearly established that the principal officer was violating constitutional rights, it follows that it is not clearly

established that the bystander officer should know the

officer was violating constitutional rights. Consequently, it would not be clearly established that the

bystander officer would be liable for a failure to intervene.”); see also Griffin v. City of Sugar Land, Tex., 2019

WL 175098, at *10 (S.D. Tex. 2019) (holding in part

that because the plaintiff ’s excessive force claim was

not based on a clearly established right, the plaintiff

likewise could not establish bystander liability). The

Court thus grants summary judgment on these claims.

App. 69

D.

Supervisor Liability Claim

To establish that an officer is subject to supervisor

liability, plaintiffs must show that “(1) the supervisor

failed to supervise or train the subordinate official; (2)

a causal link between the failure to train or supervise

and the violation of the plaintiff ’s rights; and (3) the

failure to train or supervise amounts to deliberate indifference.” Estate of Davis ex rel. v. City of N. Richland

Hills, 406 F.3d 375, 381 (5th Cir. 2005). Deliberate indifference requires “proof that a municipal actor disregarded a known or obvious consequence of his action.”

McDonald v. McClellan, 779 F. App’x 222, 227 (5th Cir.

2019) (internal quotations omitted). This usually requires that the plaintiff “demonstrate a pattern of violations and that the inadequacy of the [supervision] is

obvious.”

Plaintiffs suggest that Mansell showed indifference by looking through Timpa’s wallet and phone and

“completely abdicated his supervisory role by prematurely leaving the scene” to call Timpa’s family. Pltfs.’

Resp. Brief 57 [156]. These actions do not show that

Mansell’s supervision was obviously problematic and

fall far short of meeting the “stringent standard of

fault” necessary to prove deliberate indifference. McDonald, 779 F. App’x at 227. Because Plaintiffs cannot

show that any supervisory failure rises to the level of

deliberate indifference, the Court grants summary

judgment.

App. 70

CONCLUSION

Because the Court holds that qualified immunity

bars Plaintiffs’ excessive force and bystander liability

claims and that the summary judgment evidence does

not support Plaintiffs’ denial of medical care and supervisor liability claims, the Court grants Defendants’

motion for summary judgment on qualified immunity.

Signed July 6, 2020.

/s/ David C. Godbey

David C. Godbey

United States District Judge

App. 71

United States Court of Appeals

for the Fifth Circuit

---------------------------------------------------

No. 20-10876

---------------------------------------------------

VICKI TIMPA, INDIVIDUALLY, AND AS REPRESENTATIVE OF

THE ESTATE OF ANTHONY TIMPA; K.T., A MINOR CHILD;

CHERYLL TIMPA, AS NEXT OF FRIEND OF K.T., A MINOR

CHILD,

Plaintiffs—Appellants,

versus

DUSTIN DILLARD; DANNY VASQUEZ; RAYMOND

DOMINGUEZ; DOMINGO RIVERA; KEVIN MANSELL,

Defendants—Appellees,

versus

JOE TIMPA,

Intervenor—Appellant.

----------------------------------------------------------------------------------------------------------------------------------------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC 3:16-CV-3089

----------------------------------------------------------------------------------------------------------------------------------------------------

ON PETITION FOR REHEARING EN BANC

(Filed Jan. 27, 2022)

Before CLEMENT, SOUTHWICK, and WILLETT, Circuit

Judges.

PER CURIAM:

App. 72

Treating the petition for rehearing en banc as a

petition for panel rehearing (5TH CIR. R. 35 I.O.P.), the

petition for panel rehearing is DENIED. Because no

member of the panel or judge in regular active service

requested that the court be polled on rehearing en banc

(FED. R. APP. P. 35 and 5TH CIR. R. 35), the petition for

rehearing en banc is DENIED.

App. 73

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

U.S. Const. amend. IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.

42 U.S.C. § 1983

Every person who, under color of any statute, ordinance,

regulation, custom, or usage of any State or Territory

or the District of Columbia, subjects or causes to be

subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress, except that in any action

brought against a judicial officer for an act or omission

taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree

was violated or declaratory relief was unavailable. For

purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.