Petition for Writ of Certiorari — Michael Nissen, Petitioner v. Javier Ambler, Sr., Individually and on Behalf of All Wrongful Death Beneficiaries of Javier Ambler, II, the Estate of Javier Ambler, II, and as Next Friend of J. R. A., minor child, et al.

Supreme Court briefApr 2, 2025

Ask Donna

What actually matters in this document.

Text

No. 24In the

Supreme Court of the United States

MICHAEL NISSEN,

Petitioner,

JAVIER AMBLER, SR., INDIVIDUALLY, ON BEHALF

OF ALL WRONGFUL DEATH BENEFICIARIES OF

JAVIER AMBLER, II, ON BEHALF OF THE ESTATE

OF JAVIER AMBLER, II, AND AS NEXT FRIENDS

OF J.R.A., MINOR CHILD; MARITZA AMBLER,

INDIVIDUALLY, ON BEHALF OF ALL WRONGFUL

DEATH BENEFICIARIES OF JAVIER AMBLER, II,

ON BEHALF OF THE ESTATE OF JAVIER AMBLER,

II, AND AS NEXT FRIENDS OF J.R.A., MINOR

CHILD; MICHELLE BEITIA, AS NEXT FRIEND OF

J.A.A., MINOR CHILD; JAVIER AMBLER, II,

ESTATE OF JAVIER AMBLER, II,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Stephen B. Barron

Counsel of Record

Wright & Greenhill P.C.

4700 Mueller Boulevard,

Suite 200

Austin, TX 78723

(512) 476-4600

sbarron@w-g.com

Counsel for Petitioner

120368

(800) 274-3321 • (800) 359-6859

QUESTIONS PRESENTED

After a crash filled 20-minute high-speed car chase—

caught on video by police helicopter—Javier Ambler II

died while resisting being handcuffed due in part to an

imperceptible heart condition. Video shows Nissen used a

modicum of force for less than 90 seconds to assist the first

arriving deputies handcuff Ambler in the prone position.

Ambler stated he could not breathe in the scuffle, but force

stopped when the handcuffs clicked. Nissen was denied

qualified immunity.

The questions presented are:

1. Can a fact question on the “deadliness” of force impose

a heightened deadly force standard that “constrains” the

Fourth Amendment’s objective test—essentially requiring

officers to forfeit immunity unless they can prove it would

have also been appropriate to shoot the suspect?

2. After a suspect leads police on a 20-minute highspeed car chase, can a reasonable officer use 90 seconds

of soft-hand controls in the prone position to handcuff that

suspect—reasonably making a split-second presumption

that the suspect is dangerous and his claimed medical

emergency is a ploy?

3. Did the law clearly establish that soft-hand controls

and a taser—used to effectuate handcuffing in the prone

position—became unlawful the instant the suspect stated,

“I can’t breathe”, when no prior precedent in this Court

or the Fifth Circuit ever contemplated that such a suspect

had just led police on an outrageous high-speed chase?

PARTIES TO THE PROCEEDING

Austin Police Officer Michael Nissen was the

Defendant-Appellant below and is the Petitioner in this

Court.

Javier Ambler, Sr., individually and as representative

of the Estate of Javier Ambler II, and as next friend of

minor child J.R.A., was a Plaintiff-Appellee below and is

a Respondent in this Court.

Maritza Ambler, individually and as representative

of all wrongful death beneficiaries of Javier Ambler II,

and as next friend of minor child J.R.A., was a PlaintiffAppellee below and is a Respondent in this court.

Michelle Beita, as next friend of J.A.A., minor child,

was a Plaintiff-Appellee below and is a Respondent in

this Court.

iii

STATEMENT OF RELATED CASES

All proceedings directly related to this Petition

include:

Ambler v. Nissen, No. 1:20-CV-1068 (W.D. Tex. July

31, 2023) (Report & Recommendation).

Ambler v. Nissen, No. 1:20-CV-1068 (W.D. Tex. Sept.

21, 2023) (Adopting Report & Recommendation).

Ambler v. Nissen, 116 F.4th 351, 355 (5th Cir. 2024)

(dismissing interlocutory appeal).

TABLE OF CONTENTS

Page

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

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

STATEMENT OF RELATED CASES . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 5

A. Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 9

District Court . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fifth Circuit Majority Opinion . . . . . . . . . . 12

Table of Contents

Page

The Dissent . . . . . . . . . . . . . . . . . . . . . . . . . . 14

En Banc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

REASONS FOR GRANTING THE PETITION . . . . 17

The Decision Below Flouts Scott to

Eliminate Qualified Immunity in Cases

of Accidental Death . . . . . . . . . . . . . . . . . . . . . . . 17

A. This Court should grant Certiorari to

enforce Scott, which held that Garner

did not establish a magical on/off

switch triggering a rigid “Deadly

Force” standard. Scott is ignored by

the Fifth Circuit and other circuits

in favor of pre-Scott precedents . . . . . . . . . 18

B. This case is important, as the decision

below stacks the qualified immunity

deck to eliminate immunity in all

cases of accidental death . . . . . . . . . . . . . . . 24

II. The Decision Below is Wrong. Addressing

the Prone Position is Important, and the

Majority Ignored the Mandates of Plumhoff

to Deny Immunity . . . . . . . . . . . . . . . . . . . . . . . . 26

Table of Contents

Page

A. Reviewing the prone position in this

case is important, as the decision below

arbitrarily denies qualified immunity in

all cases if the suspect dies after going

prone, even if they were unhandcuffed

and only prone for a short time . . . . . . . . . 26

B. The Decision violated Plumhoff by

failing to decide the threat posed by

Ambler as a matter of law and failing

to adopt an on-scene reasonable officer’s

perspective on Ambler’s resistance

without the benefit of hindsight . . . . . . . . . 28

III. The Fifth Circuit’s Decision Contravened

This Court’s Qualified Immunity Precedent

by Defining Clearly Established Law at a

High Level of Generality . . . . . . . . . . . . . . . . . . . 31

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

vii

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF A PPEA LS

FOR T H E FI F T H CIRCU I T, FILED

SEPTEMBER 10, 2024 . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDI X B — J U DGM EN T OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

SEPTEMBER 10, 2024 . . . . . . . . . . . . . . . . . . . . . . . 44a

APPENDIX C — ORDER OF THE UNITED

S TAT E S DI S T R IC T C OU RT FOR

T HE W EST ERN DIST RICT OF

T EX A S , AUST IN DI V ISION, FILED

SEPTEMBER 21, 2023 . . . . . . . . . . . . . . . . . . . . . . . 46a

A PPENDIX D — ORDER A ND REPORT

A N D R EC OM M EN DAT ION OF T H E

U NITED STATES M AGISTR ATE

JUDGE, UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF T E X A S , AUS T I N DI V I SION,

FILED JULY 31, 2023 . . . . . . . . . . . . . . . . . . . . . . . 49a

APPENDIX E — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT,

FILED JANUARY 2, 2025 . . . . . . . . . . . . . . . . . . . 91a

viii

TABLE OF CITED AUTHORITIES

Cases

Page

Aguirre v. City of San Antonio,

995 F.3d 395 (5th Cir. 2021) . . . . . . . . . . . . . . . 9, 23, 24

Argueta v. Jaradi,

86 F.4th 1084 (5th Cir. 2023),

cert. denied, 145 S. Ct. 435 (2024) . . . . . . . . . . . . 16, 29

Bradley v. Benton,

10 F.4th 1232 (11th Cir. 2021) . . . . . . . . . . . . . . . . . . . 23

Cansler v. Hanks,

777 Fed. Appx. 627 (4th Cir. 2019) . . . . . . . . . . . . . . 22

City and County of San Francisco v. Sheehan,

575 U.S. 600 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 32, 33

Darden v. City of Fort Worth,

880 F.3d 722 (5th Cir. 2018) . . . . . . . . . . . 12, 14, 16, 33

Estate of Armstrong ex rel. Armstrong v.

Village of Pinehurst,

810 F.3d 892 (4th Cir. 2016) . . . . . . . . . . . . . . . . . . . . 19

Estate of Phillips v. City of Milwaukee,

123 F.3d 586 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 22

Flores v. City of Palacios,

381 F.3d 391 (5th Cir. 2004) . . . . . . . . . . . . . . 13, 16, 19

Cited Authorities

Page

Graham v. Connor,

490 U.S. 386 (1986) . . . 11, 12, 13, 15, 16, 22, 28, 29, 31

Gutierrez v. City of San Antonio,

139 F.3d 441 (5th Cir. 1998) . . . . . . . . 10, 17, 19, 23, 24

Harris v. Coweta County,

433 F.3d 807 (11th Cir. 2005) . . . . . . . . . . . . . . . . . . . 19

In re City of Philadelphia Litigation,

49 F.3d 945 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . 19

Kisela v. Hughes,

584 U.S. 100 (2018) . . . . . . . . . . . . . . . . . . . . . . . . 31, 32

Lombardo v. City of St. Louis, Missouri,

594 U.S. 464 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 27

Mitchell v. Forsyth,

472 U.S. 511 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 25

Mullenix v. Luna,

577 U.S. 7 (2015) . . . . . . . . . . . . . . . . 3, 4, 21, 25, 29, 32

Perez v. City of Fresno,

98 F.4th 919 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . . . 26

Cited Authorities

Page

Plumhoff v. Rickard,

572 U.S. 765 (2014) . . . . . . . . . . . . . . . . . . . . . 26, 28, 30

Pruitt v. City of Montgomery,

771 F.2d 1475 (11th Cir. 1985) . . . . . . . . . . . . 19, 20, 23

Ramirez v. Martinez,

716 F.3d 369 (5th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 33

Robinette v. Barnes,

854 F.2d 909 (6th Cir. 1988) . . . . . . . . . . . . . . . . . . . . 19

Ryder v. City of Topeka,

814 F.2d 1412 (10th Cir. 1987) . . . . . . . . . . . . . . . . . . 19

Salazar v. Molina,

37 F.4th 278 (5th Cir. 2022) . . . . . . . . 13, 14, 16, 31, 32

Saucier v. Katz,

533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Scott v. Harris,

550 U.S. 372 (2007) . . . . . . . . . . . . 3, 4, 10, 13, 15, 17-25

Scott v. Smith,

109 F.4th 1215 (9th Cir. 2024) . . . . . . . . . . . . . . . . . . 23

Smith v. City of Hemet,

394 F.3d 689 (9th Cir. 2005) . . . . . . . . . . . . . . . . . 19, 23

Cited Authorities

Page

Tennessee v. Garner,

471 U.S. 1 (1985) . . . . . . . . . . . . 3, 4, 9, 10, 15, 17-22, 25

Terranova v. New York,

676 F.3d 305 (2d Cir. 2012) . . . . . . . . . . . . . . . . . . . . . 22

Terrell v. Allgrunn,

114 F.4th 428 (5th Cir. 2024) . . . . . . . . . . . . . . . . . . . 29

Vera Cruz v. City of Escondido,

139 F.3d 659 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 19

White v. Pauly,

580 U.S. 73 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 31, 33

Constitutional Provisions

U.S. Const. amend. IV . . 1-3, 8, 13, 18, 20-21, 25-26, 28, 30-32

Statutes, Rules and Regulations

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

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 7

Tex. Penal Code §38.04 . . . . . . . . . . . . . . . . . . . . . . . . 7, 11

xii

Cited Authorities

Page

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Sup. Ct. R. 13(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 13(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Other Authorities

W.E. Fa irba irn , Scientific Self-Defence, 52

(1931), available at https://archive.org /

download/william-e.-fairbairn-scientific-selfdefense/William%20E.%20Fairbairn%20-%20

Scientific%20Self-Defense.pdf . . . . . . . . . . . . . . . . . . 26

Kroll M.W., Brave M.A., et al., Applied Force

During Prone Restraint: Is Officer Weight a

Factor? A m. J. Forensic Med. Pathol. Vol. 40,

No. 1 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Luo J., Pavlov I., et al., Awake Prone Positioning

Me t a -An a l ys i s G r o u p . Aw a k e Pr o n e

Positioning in Adults With COVID-19:

A n Ind iv idua l Pa r t icipa nt Dat a Met aAnalysis. JAMA Intern. Med. (2025) . . . . . . . . . . . 27

OPINIONS BELOW

The Fifth Circuit’s decision is reported at 116 F.4th

351 (5th Cir. 2024). Pet. App. 1a – 23a. Judge Smith filed

a separate dissenting opinion. Pet. App. 24a – 43a. The

Report and Recommendation in the district court is not

reported, but it is available at 2023 WL 4879903, and

it is reproduced in Appendix D. Pet. App. 49a – 90a.

The District Court’s decision to adopt the Report and

Recommendation is not reported, but it is available at

2023 WL 6168253, and it is reproduced in Appendix C.

Pet. App. 46a – 49a.

STATEMENT OF JURISDICTION

The Fifth Circuit had appellate jurisdiction because

the district court’s order denying Petitioner’s motion

for summary judgment was a final decision within the

meaning of 28 U.S.C. § 1291 and the collateral order

doctrine. Mitchell v. Forsyth, 472 U.S. 511, 527 – 30 (1985).

The Fifth Circuit entered its opinion on September 10,

2024. The Fifth Circuit denied rehearing en banc eightto-nine on January 2, 2025. Pet. App. 92a. Petitioner filed

this timely petition for writ of certiorari on April 2, 2025.

See Sup. Ct. R. 13(1), (3). This Court has jurisdiction under

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the Constitution provides

in relevant part:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated * * * .

U.S. Const. amend. IV.

Section 1983 provides, in relevant part:

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 action at law, suit in equity,

or other proper proceeding for redress * * * .

42 U.S.C. § 1983.

INTRODUCTION

“[I]t stacks the deck against the officer,

it seems to me, to describe his action

as the application of deadly force.”

—Mullenix v. Luna, 577 U.S. 7, 19 (2015)

(Scalia, J., concurring).

***

Below, Austin Police Officer Michael Nissen played

against the stacked deck Justice Scalia’s concurrence

foresaw in Mullenix.1 Unsurprisingly, Nissen lost.

“In the wake of a high-speed chase involving three

crashes and triple digit speeds, Officer Michael Nissen

used a modicum of force to restrain Javier Ambler.” Pet.

App. 24a (Smith, J., dissenting). But qualified immunity

was denied.

Below, a 2-1 Fifth Circuit panel declined to disturb

the district court’s finding that—since Ambler died—a

jury could find that Nissen’s soft hand force constituted

“deadly force.” Under a “constrained” Fourth Amendment

test that the Fifth Circuit adopted post-Garner in 1998,

the majority held that Nissen must forfeit qualified

immunity unless he could pass this “constrained” test.

That test essentially required Nissen to prove he could

shoot Ambler.

Vigorously dissenting, Judge Jerry E. Smith rejoined

that this Court “flatly” rejected this reading of Garner

in Scott v. Harris, and that the majority’s “deadly force”

sleight-of-hand made it impossible for officers to receive

qualified immunity in any case involving an accidental

death. Judge Smith explained how the deck was loaded:

“One might charitably express a narrow version

of what the majority advances as follows:

1. “It does not assist analysis to refer to all use of force that

happens to kill the arrestee as the application of deadly force….

[t]hough it was force sufficient to kill, it was not applied with the

object of harming the body of the felon.” Mullenix v. Luna, 577 U.S.

7, 19 (2015) (Scalia, J., concurring) (cleaned up).

Ambler died. Deadly force is a question of fact.

There is no question that if Nissen had walked

up and shot Ambler in the head he would be

liable. So deadly force is obviously material.

Ergo, we deny [qualified immunity].” Pet. App.

25a.

This is the “stacked deck” that the Mullenix

concurrence contemplated—and which this Court

explicitly prohibited in Scott v. Harris, 550 U.S. 372

(2007). 2 This case thus presents the optimal vehicle for

this Court to grant Certiorari to enforce Scott on Circuits

that are split on applying its mandate.

This is also the ideal case to decisively issue nationwide

guidance on the prone position. Lombardo v. City of St.

Louis, Missouri, 594 U.S. 464 (2021). Specifically, this

case should be an example of a clearly constitutional use

of the maneuver. After all, if officers cannot use the prone

position for 90 seconds to put handcuffs on a felon who

just previously fled for 20 minutes at 100mph—then this

common yet crucial police maneuver might as well be per

se unconstitutional.

The dissent similarly underscored the majority’s logic

“arbitrarily denies QI to officers in another category of

situations. As soon as a suspect goes prone, for however

long, if the suspect happens to die later, the case must go

to trial. That would be a bizarre result indeed.” Pet. App.

36a – 37a.

2. Scott, 550 U.S. at 382. (“Garner did not establish a magical

on/off switch that triggers rigid preconditions whenever an officer’s

actions constitute deadly force.”).

A divided Fifth Circuit denied en banc review by

the slimmest of margins—an eight-to-nine vote. This

Court should accordingly grant Certiorari to correct

a closely divided Fifth Circuit. If left unreviewed, the

dissent correctly warns this case will make it “impossible

for officers to receive qualified immunity in cases of

accidental death, no matter how reasonable their force

was in context.” Pet. App. 24a – 25a. This Court should

not forsake law enforcement to that fate.

STATEMENT OF THE CASE

A. Statement of Facts

In the dark early morning hours of March 28, 2019,

Javier Ambler II refused to pull over for a routine traffic

stop initiated by Williamson County Deputies.

Instead, Ambler f led. Deputies chased Ambler

for more than twenty minutes as he sped down both

interstate highways and residential roads. Pet. App. 2a.

Ambler reached speeds exceeding 100mph and crashed

his car numerous times—only to subsequently resume his

attempt to escape. Pet. App. 2a – 3a, 24a, 38a, 59a.

Ambler’s flight from justice was so dangerous that

the Austin Police Department deployed its helicopter to

monitor Ambler. The footage from the helicopter shows

Ambler weaving in and out of traffic in what amounted to

a “desperate” flight from justice. Pet. App. 24a, 27a. His

driving endangered the public, the officers, and himself.

Pet. App. 24a.

Austin Police Officer Michael Nissen was not part of

the chase, but it is undisputed that he knew all about it,

as he was kept informed via radio while he was patrolling.

Pet. App. 58 – 59a. Nissen became involved when he

learned that Ambler’s anticipated flight path would pass

his location. Attempting to terminate the chase nonlethally, Nissen got out of his car in order to deploy tire

spikes on the street. ROA.3643 (Exhibit 12, 02:50 – 02:57).

Before Nissen could deploy the spikes, Ambler’s

wrecked car sped right past him. Moments later, Nissen

observed Ambler spinout sideways, almost hit cars

stopped at a traffic light, and then skid across a sidewalk

before stopping after hitting a traffic sign. Pet. App. 59a.

The spinout was captured by the helicopter’s video camera.

This crash was loud and severe—but Ambler resumed

fleeing. ROA.3624 (Exhibit 6, 2:25 – 2:37).

Finally, Ambler’s flight was terminated when he

crashed a third time—this time into some trees on the

side of a residential road. Pet. App. 2a, 59a. The pursuing

Williamson County deputies quickly arrived on the scene.

Ambler opened his car door and was promptly ordered

to get on the ground by a deputy. When Ambler did not

immediately get on the ground, he was tased. Ambler fell

to the asphalt, and the deputies began trying to handcuff

him. Pet. App. 3a, 50a – 51a.

Officer Nissen arrived at the scene a little less than

one minute after the deputies. Pet. App. 9a, 40a – 41a. On

arrival, Nissen saw the deputies standing over Ambler as

they vigorously struggled to cuff him in the prone position.

Pet. App. 3a, 32a, 51a.

Nissen observed that Ambler was an enormous

man3 who was still unrestrained at night on a dark road.

Ambler was feet away from his unsearched car. Pet. App.

29a. Since Ambler had just feloniously evaded arrest in

a motor vehicle, Nissen made the split-second decision to

help the deputies handcuff Ambler in the prone position.

Pet. App. 37a; see Tex. Penal Code § 38.04. Nissen’s bodyworn camera video captured that he used a “modicum” of

force. Pet. App. 24a. As the dissent below noted:

Nissen spent about a minute controlling

Ambler’s hand—without touching any other

part of his body—and then no more than 20

seconds applying pressure to Ambler’s upper

back and head. Pet. App. 24a.

During this force, Ambler disobeyed command after

command to lay flat on his stomach and put his hands

behind his back so he could be handcuffed. Instead, he

“rather obviously” provided physical resistance to the

multiple officers trying to cuff him. Pet. App. 32a. As he

resisted the cuffs, Ambler stated, “I can’t breathe,” and

softly stated that he had congestive heart failure. Nissen

later testified that he did not hear the latter. Pet. App.

32a, 51a.

Nissen also testified as to his thinking:

[I]n this situation, where I am assisting trying

to take an individual into custody who just spent

the last 20-or-so minutes driving recklessly

through the City of Austin, crashing multiple

3. 410 pounds to be exact.

times, I had to weigh the risk of not taking

him into custody quickly against what possible

health conditions he may or may not have had.

Pet. App. 37a.

In the scuffle, one deputy tased Ambler again in “drive

stun” mode. Unlike the first tasing, this second tasing

occurred in Nissen’s presence. Pet. App. 32a, 71a. Finally,

the officers managed to handcuff Ambler. Pet. App. 51a.

Two minutes and fifteen seconds passed between the time

the first deputy made physical contact with Ambler and

the time the handcuffs clicked. Pet. App. 32a.

Force stopped once Ambler was handcuffed, and the

officers quickly moved him off his stomach and into a

seated position. They checked him for a pulse, which they

could not find. Ambler was taken to a hospital where he

was pronounced dead. Pet. App. 52a.

The Travis County Medical Examiner determined

that Ambler’s cause of death was “congestive heart failure

and cardiovascular disease associated with morbid obesity

in combination with forcible restraint.” Pet. App. 65a. Or

as the dissent below put it, “[t]ragically, in part because

of an imperceptible medical condition, Ambler died during

the arrest as a result of the restraint.” Pet. App. 24a.

Respondents sued Officer Nissen under 42 U.S.C.

§ 1983. In relevant part, they accused Nissen of using

excessive force against Ambler in violation of his Fourth

Amendment rights, and for failing to intervene to stop the

Williamson County Deputies from using excessive force.

Pet. App. 2a, 52a.

Officer Nissen moved for summary judgment based

on qualified immunity. Pet. App. 49a – 50a.

B. Procedural History

District Court.

The district court 4 denied Nissen’s motion for

summary judgment. It determined that, because Ambler

died, it would treat this case as a “deadly force case”

pursuant to the Fifth Circuit’s precedent in Aguirre v.

City of San Antonio, 995 F.3d 395, 412 (5th Cir. 2021)

Pet. App. 64a.

The district court noted that under Aguirre, the

Fifth Circuit treats deadly force cases as a “special

subset of excessive force claims” in which the “objective

reasonableness balancing test is constrained.” Pet. App.

64a. Under this constraint, the court applies a heightened

restrictive standard derived from Tennessee v. Garner,

471 U.S. 1, 3 (1985).

The constrained two-part test asks: (1) “whether

the force constituted deadly force” and (2) whether “the

subject posed a threat of serious harm justifying the use

of deadly force.” Pet. App. 64a (numerals added). If the

answer to part one is “yes” and the answer to part two

is “no” then the officer is per se not entitled to qualified

immunity. Nissen argued below that his force did not

4. The district court adopted the Report & Recommendation of

the Magistrate Judge in toto and without adding its own articulated

analysis. Pet. App. 46a. Petitioner therefore refers to the Magistrate’s

order as if it were the district court’s order.

amount to deadly force as a matter of law warranting

a restricted Garner standard, and that instead all that

mattered under this Court’s precedent in Scott v. Harris

was if his force was reasonable. ROA.7460 (citing 550 U.S.

372, 382).

Pursuant to a 1998 Fifth Circuit precedent the district

court rejected Nissen’s argument that his force did not

amount to deadly force as a matter of law. Pet. App. 64a

(citing Gutierrez v. City of San Antonio, 139 F.3d 441, 446

(5th Cir. 1998)). Instead, the district court followed this

pre-Scott precedent and reiterated:

Whether a use of force is ‘deadly force’ is a

question of fact. Deadly force is force that

carries with it a substantial risk of causing

death or serious bodily harm. A reasonable jury

can find that the restraint used by an officer

amounted to deadly force. Pet. App. 64a.

Because the medical examiner and Respondents’

expert opined that Ambler died of his cardiovascular

disease in combination with restraint, and because Nissen

acknowledged he had received training on the risks of

asphyxia in the prone position, the district court held that:

A reasonable jury could conclude that the

use of prone restraint on an individual with

obesity and congestive heart failure created

a substantial risk of death or serious bodily

injury. Pet. App. 64a – 66a.

Analyzing Respondents’ “deadly force claim” in isolation,

the district court denied Nissen qualified immunity. It held

genuine issues of material fact existed as to if soft hand

restraining force constituted “deadly force.” Pet. App. 67a.

Separately, the district court also analyzed Nissen’s

force under the factors announced in Graham v. Connor,

490 U.S. 386, 109 (1986). The district court concluded

that the first factor—the severity of the crime—weighed

in favor of the force Nissen used. The district court

acknowledged that the videos showed that Ambler “evaded

police for 22 minutes, driving at high rates of speed on both

a highway and residential streets” and that he crashed

three times. Pet. App. 58a. Since evading arrest in a motor

vehicle is a felony under Texas law, the first factor weighed

for Nissen. Pet. App. 59a (citing Tex. Penal Code § 38.04).

But the district court found that fact questions

prevented resolving the second and third Graham factors

for Nissen’s force.

As to the second factor, “whether the suspect poses an

immediate threat to the safety of the officers or others,”

the district court determined that it would be a material

fact question as to if Nissen should have realized that

Ambler was not a threat because he had been sufficiently

“subdued” by the two deputies standing over him when

Nissen began helping them handcuff Ambler. Pet. App.

61a.

As to the third factor—“whether the suspect is

actively resisting arrest or trying to evade arrest by

flight”—the district court determined that it would be a

material fact question as to if Nissen should have realized

that Ambler’s resistance to being handcuffed was the

result of him “instinctively” resisting due to a medical

emergency, instead of intentional resistance to arrest.

Pet. App. 63a. The district court determined that the

video evidence did not provide clarity to resolve a factual

dispute as to Ambler’s reason for resistance. Pet. App. 63a.

The district court also held it was clearly established

by Darden v. City of Fort Worth, 880 F.3d 722 (5th Cir.

2018) that it was unconstitutional to use this force on a

suspect claiming a medical emergency. Pet. App. 68a.

The district court reached this conclusion even though

the suspect in Darden never attempted to escape police.

Pet. App. 29a.

For similar reasons, the district court also denied

Nissen qualified immunity on Respondents’ bystander

liability claim. The district court found that it was clearly

established that Nissen had a duty to intervene to stop

the force used by the Williamson County deputies. Pet.

App. 69a – 71a.

Fifth Circuit Majority Opinion.

On September 10, 2024, a divided panel of the Fifth

Circuit affirmed and dismissed Nissen’s interlocutory

appeal. Pet. App. 2a.

Continuing to analyze “deadly force” separately

from the Graham factors, the majority denied Nissen’s

argument that “no reasonable officer would have known

that using force on Ambler for such a brief period of time

would lead to his death.” Pet. App. 13a. The majority

also dismissed Nissen’s assertion that “any conclusion

otherwise would essentially require denying QI in all

cases involving an accidental death” and “that such a

result would trade the Fourth Amendment’s general

reasonableness standard for an outcome-oriented one

that contravenes Supreme Court authority.” Pet. App. 14a

(citing Scott v. Harris, 550 U.S. 372, 383 (2007)).

In dismissing that argument, the majority held that

“Nissen’s fears are unfounded” because “[a]s a threshold

matter, whether a use of force is ‘deadly’ is a question of

fact.” Pet. App. 14a. In support, the majority cited Flores, a

Fifth Circuit case decided nearly three years before Scott

v. Harris. Pet. App. 14a (citing Flores v. City of Palacios,

381 F.3d 391, 399 (5th Cir. 2004)).

Concluding its separate “deadly force” analysis, the

majority admitted that Nissen’s maneuver may have

resulted in no injury at all on a healthy suspect, but that

“[n]ot all plaintiffs are the same, and harmless force in one

situation could be deadly force in another” and that holding

otherwise would “trade nuance for willful blindness.” Pet.

App. 15a – 16a.

The majority also refused to disturb the district

court’s proffered material fact questions precluding

immunity on the second and third Graham factors and

the Respondents’ failure to intervene claim. To do so,

the majority distinguished Salazar and held that Nissen

was incorrect in his argument that any reasonable officer

would believe Ambler’s prior flight made it reasonable to

view him as an ongoing threat justifying at least soft hand

controls until he was restrained in handcuffs. Pet. App.

9a (citing Salazar v. Molina, 37 F.4th 278 (5th Cir. 2022)).

The majority also held that Nissen was incorrect to

argue he was objectively reasonable in viewing Ambler’s

struggle against the handcuffs as resisting arrest due

to his prior flight. Instead, the majority determined

that Nissen could not reasonably suspect Ambler was

engaging in a ploy to avoid being handcuffed by claiming a

medical emergency. Distinguishing Salazar, the majority

determined that Nissen was “[a]pplying such reasoning

without context” and therefore attempting to “undermine

the fact-specific nature of the excessive force analysis.”

Pet. App. 11a.

The majority held that a jury would decide if “Ambler

was indeed refusing to submit to officers by pulling his

body away from the ground” or if he was instead “in a

struggle for his life.” Pet. App. 12a.

Finally, the majority affirmed that Darden had

clearly established that Nissen’s conduct amounted to

unconstitutional excessive force, and that it was also

clearly established that Nissen had a duty to intervene

to stop the Williamson County deputies’ force. Pet. App.

21a – 23a (citing Darden, 880 F.3d at 733 – 34).

The Dissent.

Judge Smith dissented. He criticized that a charitable

view of the majority’s logic “essentially eliminates qualified

immunity in cases of accidental death, almost all of which

are situations where deadly force is not warranted. If it

were warranted, they would likely not be accidental.” Pet.

App. 26a (emphasis original). “[W]hether force is deadly

will almost always be material in accidental death cases.

Since deadliness is a fact question, a defendant will never

get QI.” Pet. App. 26a.

Judge Smith explained that the majority erroneously

used Garner to obscure the relevant analysis to instead

“establish some sort of threshold inquiry in deadly-force

cases” which presupposes that an officer’s force is per se

unconstitutional unless the officer has probable cause to

believe the suspect posed a significant threat of death or

serious harm. Pet. App. 35a.

This Court, Judge Smith wrote, “flatly rejected this

errant reading of Garner” in Scott v. Harris. Pet. App.

35a. Judge Smith explained that this Court held that

Garner did not permit courts to flip “a magical on/off

switch that triggers rigid preconditions whenever an

officer’s actions constitute deadly force.” Pet. App. 35a

(citing Scott, 550 U.S. at 382). Under the Scott standard,

Judge Smith dissented that “whether or not Nissen’s

actions constituted application of deadly force, all that

matters is whether Nissen’s actions were reasonable.”

Pet. App. 35a (cleaned up).

The dissent also criticized the majority for “curiously”

recontextualizing Garner’s language to untether it “from

Garner’s very different set of facts.” Pet. App. 35a. Judge

Smith wrote that a fair reading of Garner’s text limited

any such heightened standard “to the facts of that case,

which involved shooting a fleeing suspect with live rounds

to prevent his escape.” Pet. App. 36a (citing Garner, 471

U.S. at 3). Judge Smith noted that shooting someone with

live rounds was very different from the force Nissen used

here, and “consequently it calls for a different sort of

inquiry.” Pet. App. 36a.

Judge Smith also disagreed with the majority’s

Graham analysis. He found that the district court’s

proffered material fact questions were immaterial5 to

finding that Nissen’s force was constitutional under

Graham. Pet. App. 36a.

On the second Graham factor, Judge Smith rejoined

that whether a reasonable officer would believe that

Ambler was a threat was a “question of law left to the

court.” Pet. App. 28a (citing Argueta v. Jaradi, 86 F.4th

1084, 1090 (5th Cir. 2023), cert. denied, 145 S. Ct. 435

(2024)). In light of the video evidence, Judge Smith wrote it

“boggles the mind” to think a reasonable officer could not

view Ambler as a threat as a matter of law. Pet. App. 29a.

On the third Graham factor, Judge Smith agreed

that any further escape attempt by Ambler would have

failed—but only because of the multiple officers “applying

to Ambler the precise sort of force that the majority finds

objectionable.” Pet. App. 32a. Judge Smith noted that

the videos showed that Ambler ignored command after

command to lay flat and put his hands behind his back.

Thus, it was clear Ambler was resisting. Pet. App. 32a.

Finally, the dissent faulted the majority’s finding

that the law was clearly established that Nissen’s force

was unconstitutional, and that it was clearly established

that he was required to intervene to stop the Williamson

County deputies.

The majority’s reliance on Darden, in Judge Smith’s

view, failed at its first breath because “Darden never

attempted to escape the police.” Pet. App. 39a (emphasis

5. In light of “multiple clear videos of what happened…”. Pet.

App. 25a.

original). The dissent noted that the law was arguably

established in the opposite direction—in favor of Nissen—

as prior precedent “stands for the proposition that lack

of restraint after an extended attempt to escape justifies

a heightened use of force.” Pet. App. 40a (citing Salazar,

37 F.4th at 284).

En Banc.

Officer Nissen filed a petition for rehearing en banc.

On January 2, 2025, the Fifth Circuit denied rehearing

by an eight-to-nine vote. Judges Jones, Smith, Richman,

Ho, Duncan, Engelhardt, Oldham, and Wilson voted to

rehear the case.

Chief Judge Elrod and Judges Stewart, Southwick,

Haynes, Graves, Higginson, Willett, Douglas, and

Ramirez voted against rehearing. Pet. App. 92a.

REASONS FOR GRANTING THE PETITION

The Decision Below Flouts Scott to Eliminate

Qualified Immunity in Cases of Accidental Death.

Below, the majority impermissibly used a “constrained”

deadly force framework based on pre-Scott precedent to

deny Nissen qualified immunity. Gutierrez, 139 F.3d at

446. The majority flouted Scott to hold that “whether a

use of force is ‘deadly’ is a question of fact.” Pet. App. 14a.

Flores, 381 F.3d at 399.

Conversely, the dissent is correct. Scott flatly rejected

and overruled this “constrained” 1998 test as an errant

reading of Garner. Pet. App. 35a (citing Scott, 550 U.S. at

382). This Court should grant Certiorari to enforce Scott

and resolve the Circuit split on Scott’s application.

This Court should grant Certiorari to enforce

Scott, which held that Garner did not establish

a magical on/off switch triggering a rigid

“Deadly Force” standard. Scott is ignored by

the Fifth Circuit and other circuits in favor of

pre-Scott precedents.

Forty years ago, this Court decided Tennessee v.

Garner and announced that a police officer may not use

deadly force to “prevent the escape of all felony suspects”

no matter the circumstances. Garner, 471 U.S. at 11.

Specific to the facts of Garner, this Court held that “[a]

police officer may not seize an unarmed, nondangerous

suspect by shooting him dead.” Id. Instead, it would only

be constitutional to use this force “[w]here the officer has

probable cause to believe the suspect poses a threat of

serious physical harm…”. Id.

Three dissenters admonished the Garner majority,

asserting that by failing to explicitly “limit its holding to

the use of firearms, the Court unnecessarily implies that

the Fourth Amendment constrains the use of any police

practice that is potentially lethal, no matter how remote

the risk.” Id. at 31 (O’Connor, J., dissenting).

With no explicit definition of what “deadly force” was

from this Court, the lower courts rushed to adopt their

own. This created a landscape of shifting definitions and

legal frameworks between the mid-1980s and mid-2000s.

Many Circuits eventually settled on the Model Penal

Code’s definition, with some adopting a modified version

to remove the Code’s subjective component.6

In 1998 in Gutierrez, the Fifth Circuit determined it

would define deadly force as “carrying with it a substantial

risk of causing death or serious bodily harm.” Flores v.

City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004) (citing

Gutierrez, 139 F.3d at 446). This precedent also held that

it would be a “a question of fact, not one of law” as to if

an officer used such force. Id. (emphasis added). Tying

it all together, the Fifth Circuit determined that under

Garner, the “objective reasonableness balancing test is

constrained” and that an officer’s conduct would per se be

unconstitutional unless they could satisfy the constrained

test. Id. (emphasis added).

In Harris v. Coweta County, the Eleventh Circuit

issued an identical holding based on a modified Model

Penal Code definition. 433 F.3d 807, 814 (11th Cir. 2005),

rev’d Scott v. Harris, 550 U.S. 372 (2007) (citing Pruitt,

6. See e.g., Smith v. City of Hemet, 394 F.3d 689, 705 (9th Cir.

2005) (overruling previous definition established in Vera Cruz v. City

of Escondido, 139 F.3d 659, 663 (9th Cir. 1998)) (collecting cases);

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

(deadly force “creates a substantial risk of death or serious bodily

injury”); Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 593

(7th Cir. 1997) (same); In re City of Philadelphia Litigation, 49 F.3d

945, 966 (3d Cir. 1995) (adopting the Model Penal Code definition);

Ryder v. City of Topeka, 814 F.2d 1412, 1416 n.11 (10th Cir. 1987)

(same); Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988) (same);

Pruitt v. City of Montgomery, 771 F.2d 1475, 1479 n.10 (11th Cir.

1985) (same).

771 F.2d at n.10).7 Using that definition, the Eleventh

Circuit found that “there is little dispute that the

ramming of [the suspect’s] car could constitute a use of

‘deadly force’ (under the Model Penal Code definition) and

that a jury could so reasonably conclude.” Id. (cleaned

up) (parenthetical added). Under a constrained and

heightened Garner standard, the Eleventh Circuit denied

Officer Scott qualified immunity. 8

This Court granted Certiorari to review the Eleventh

Circuit and resoundingly reversed. Scott, 550 U.S. at 382.

This Court’s majority then announced the guardrails that

the dissent in Garner contemplated. Garner, 471 U.S. at

31 (O’Connor, J., dissenting).

First, this Court noted that the Scott Respondent

urged the Court “to analyze this case as we analyzed

Garner.” Scott, 550 U.S. at 381 – 82. That meant deciding

as a threshold matter “whether the actions [the officer]

took constituted deadly force.” Id. The Scott Respondent

defined deadly force as per the Eleventh Circuit’s

definition: “[A]ny use of force which creates a substantial

likelihood of causing death or serious bodily injury.” Id.

Second, the Scott Respondent argued that if the force

met that definition, then “Garner prescribes certain

preconditions that must be met before Scott’s actions

can survive Fourth Amendment scrutiny.” Id. (emphasis

added). One of those preconditions was that “[t]he suspect

7. See id. (“‘Deadly force’ is force that creates ‘a substantial

risk of causing death or serious bodily injury.’”) (citing Pruitt, 771

F.2d at 1479).

8. Id. at 815 (Holding that under Garner “[n]one of the

antecedent conditions for the use of deadly force existed in this

case.”).

must have posed an immediate threat of serious physical

harm to the officer or others.” Id. If any precondition

was not met, then the officer’s “actions were per se

unreasonable.” Id. at 382.

Scott categorically rejected that position, and with it

any case law holding that Garner required a heightened

“deadly force” standard that could be triggered by a Model

Penal Code definition.

This clause is dispositive:

“Garner did not establish a magical on/off

switch (rejecting a fact question) that triggers

rigid preconditions (rejecting a “constrained”

deadly force analysis) whenever an officer’s

actions constitute deadly force.” (rejecting

the Model Penal Code definition) (cleaned up)

(parentheticals added) Scott, 550 U.S. at 382.

At bottom, Scott explained that Garner was merely

an application of the Fourth Amendment’s reasonableness

test regarding a particular type of force in a particular

situation. 9 Said another way, Garner applies when

Garner’s facts apply—when an officer shoots a gun so

as to hit a person. Id. at 383; accord Mullenix, 577 U.S.

at 19 – 20 (Scalia, J., concurring); accord Pet. App. 36a

(Smith, J., dissenting).

9. See id. at 383 (“Whatever Garner said about the factors

that might have justified shooting the suspect in that case, such

‘preconditions’ have scant applicability to this case, which has vastly

different facts. Garner had nothing to do with one car striking

another or even with car chases in general . . . . A police car’s bumping

a fleeing car is, in fact, not much like a policeman’s shooting a gun

so as to hit a person”) (cleaned up).

In the aftermath of Scott, some Circuits explicitly

acknowledged and applied this holding.

The Second Circuit acknowledged and applied Scott’s

holding as outlined supra. In Terranova, police officers

intentionally stopped traffic to create a barricade of

stopped cars to stop motorcyclists who were fleeing police

at high-speed. Terranova v. New York, 676 F.3d 305, 307

(2d Cir. 2012). As a result, one of the motorcyclists was

killed. Id. The case was tried, and despite acknowledging

that the officer’s actions “placed the plaintiff ‘at risk of

serious injury or death’” the district court refused to give a

heightened deadly force instruction derived from Garner.

Id. at 309, n.2. The Second Circuit affirmed after an indepth analysis of Scott—holding a deadly force instruction

would be impermissible in a case which did not involve the

equivalent of “firing a gun aimed at a person.” Id.10

The Fourth Circuit in Cansler also acknowledged

that Scott rejected “any effort to prescribe certain

preconditions for a police officer’s use of reasonable force.”

Cansler v. Hanks, 777 Fed. Appx. 627, 635 (4th Cir. 2019).

Instead, the Fourth Circuit affirmed that Scott repudiated

any strict framework that “a suspect would have to pose

an immediate threat of serious physical harm to the

officer or others for deadly force to be reasonable” in all

circumstances. Id.11

10. Id. (Noting that under Scott “[t]he present matter is easily

distinguishable from Garner given the type of force used—a traffic

stop as opposed to firing a gun aimed at a person.”).

11. See also Estate of Armstrong ex rel. Armstrong v. Village

of Pinehurst, 810 F.3d 892 (4th Cir. 2016) (declining to use any

framework other than the Graham factors in a lethal tasing case).

But other Circuits have declined to apply Scott in favor

of their pre-Scott precedents and a modified Model Penal

Code definition.12

The Fifth Circuit is one of those Circuits. After

Scott, the Fifth Circuit never analyzed if this Court had

overruled the permissibility of the “constrained” deadly

force framework that it established in 1998 until Aguirre in

2021. Aguirre, 995 F.3d 395. In Aguirre, the Fifth Circuit

finally analyzed if Scott prohibited its framework in a nonshooting case where force resulted in the suspect’s death.

After briefly acknowledging Scott’s mandate, the opinion

shockingly proceeded to ignore it entirely. Holding in its

next breath:

Nevertheless, we have long held that the use

of deadly force is unreasonable where an

officer does not have probable cause to believe

that the suspect pose[d] a threat of serious

physical harm…and we know of no case that

has departed from this basic principle….[T]his

court defines deadly force as force that creates

a substantial risk of death or serious bodily

injury. Id. at 412 – 13 (emphasis added) (citing

Gutierrez, 139 F.3d at 446).

12. See e.g., Scott v. Smith, 109 F.4th 1215 (9th Cir. 2024)

(creating a deadly force fact question under a Model Penal Code

definition adopted in 2005 in Smith, 394 F.3d at 706, to deny immunity

under a heightened deadly force standard in a case where a suspect

died of prone restraint); see also Bradley v. Benton, 10 F.4th 1232

(11th Cir. 2021) (creating a deadly force fact question under a Model

Penal Code definition established in 1985 in Pruitt, 771 F.2d at 1479,

to deny immunity under a heightened deadly force standard in a

case where a suspect died after being tased while climbing a wall).

Aguirre’s dismissal of Scott in favor of continuing the

Fifth Circuit’s 1998 “constrained” deadly force framework

was clearly wrong. This Court should grant certiorari

to enforce its holding in Scott, and to resolve the split

amongst the Circuits.

B. This case is important, as the decision

below stacks the qualified immunity deck to

eliminate immunity in all cases of accidental

death.

This Court should also grant this Petition because

the issue is important. Sup. Ct. R. 10. Specifically, the

importance of enforcing Scott’s mandate in this case is

made manifest by Judge Smith’s dissent—which correctly

stated that the majority used Guiterrez’s “constrained”

deadly force framework to essentially eliminate qualified

immunity in any case involving an accidental death. Pet.

App. 25a – 26a.

That has to be error. If qualified immunity has any

home, then “this sort of accidental death case is squarely

within its heartland.” Pet. App. 26a. The dissent explained

this reductivism:

Ambler died. Deadly force is a question of fact.

There is no question that if Nissen had walked

up and shot Ambler in the head he would be

liable. So deadly force is obviously material.

Ergo, we deny [qualified immunity]. Pet. App.

25a.

As Nissen argued below, this logic trades the Fourth

Amendment’s general reasonableness test for an outcomeoriented one—a test the officer always loses. Pet. App.

14a.

Ten years ago, Justice Scalia’s concurrence in

Mullenix foresaw and forewarned that it “stacked the

deck” against officers to describe all “force that happens

to kill the arrestee as the application of deadly force.”

Mullenix, 577 U.S. at 19 (Scalia, J., concurring). The

concurrence explained that the deadly force attribution—

in a case where the officer “did not shoot to wound or

kill the fleeing [suspect]”—contravened Scott. In a nonshooting case, the Fourth Amendment required the Court

to ask “not whether it was reasonable to kill” but whether

the officer’s objective in using force was reasonable. Id.

Ten years later, the value of this wisdom is even more

prescient in this case. Currently, the Fifth Circuit’s deadly

force framework “distorts” the Fourth Amendment’s

inquiry. Id. Some panels in the Fifth Circuit have tacitly

recognized the error. See Morrow v. Meachum, 917 F.3d

870, 878 (5th Cir. 2019) (Oldham, J., Maj. Op.) (“[t]he

Supreme Court has warned us against extending

Garner.”).

But the divided Fifth Circuit below denied en banc

review by the slimmest of margins—an eight-to-nine vote.

Review is needed to help the Fifth Circuit rid itself of its

persisting error. Otherwise, this case will truly make it

impossible for officers to receive qualified immunity in

cases of accidental death, no matter how reasonable their

use of force was in context. Pet. App. 24a – 25a.

II. The Decision Below is Wrong. Addressing the Prone

Position is Important, and the Majority Ignored the

Mandates of Plumhoff to Deny Immunity.

Reviewing the prone position in this case is

important, as the decision below arbitrarily

denies qualified immunity in all cases if the

suspect dies after going prone, even if they

were unhandcuffed and only prone for a short

time.

Handcuffing in the prone position is one of the oldest

techniques of modern policing.13 Yet this Court has yet

to issue an opinion that provides affirmative nationwide

guidance on when the prone position meets constitutional

muster under the Fourth Amendment.

But the legality of this maneuver is undoubtably an

important and reoccurring issue, as it regularly appears

in controversy in the lower courts.14 It is also a profoundly

common and crucial aspect of day-to-day police work.15

13. W.E. Fairbairn, Scientific Self-Defence, 52 (1931) (British

police superintendent’s published trainings, teaching that the prone

position is “the only way one man can handcuff another, unless

the latter is willing to submit.”) available at https://archive.org/

download/william-e.-fairbairn-scientific-self-defense/William%20

E.%20Fairbairn%20-%20Scientific%20Self-Defense.pdf.

14. See e.g., Perez v. City of Fresno, 98 F.4th 919, 928 (9th

Cir. 2024) (Thomas, J., concurring in part) (collecting cases with a

negative view of the prone position).

15. Kroll M.W., Brave M.A., et al., Applied Force During Prone

Restraint: Is Officer Weight a Factor? A m. J. Forensic Med. Pathol.

Vol. 40, No. 1 (2019) (“North American law enforcement officers

And though much maligned, very recent medical studies

have shown that the prone position actually helps

oxygenation.16

In Lombardo, this Cour t issued a summar y

disposition to the Eighth Circuit in a prone position case

where a pre-trial detainee died after he was “already

handcuffed” and shackled and then placed in the prone

position for 15 minutes with weight pressed against him.

Lombardo, 594 U.S. at 467. Without deciding the merits,

this Court worried that the Eighth Circuit had held prone

restraint per se constitutional for any length of time if

the suspect kept resisting—even if already handcuffed.

Id. This Court remanded to consider “the kind, intensity,

duration” and surrounding circumstances of the prone

restraint. Id. at 467.

Three members of this Court dissented, and wrote

the case should have been decided on the merits, noting

“a decision by this Court on the question here could be

instructive.” Id. at 460 (Alito, J., dissenting).

That instruction is still needed. In this case, the

dissent articulates that the majority below has held that

the prone position is per se unconstitutional if the suspect

(LEOs) control and restrain agitated and resistant subjects in the

prone position more than 500,000 times each year without a death

or serious injury.”).

16. Luo J., Pavlov I., et al., Awake Prone Positioning MetaAnalysis Group. Awake Prone Positioning in Adults With

COVID-19: An Individual Participant Data Meta-Analysis. JAMA

Intern. Med. (2025) (Noting that “awake prone positioning” was

found to improve COVID-19 outcomes).

dies—no matter how short the duration or minimal the

force. Pet. App. 36a – 37a. To wit, the majority concedes

that Nissen’s “maneuver” may have resulted in no injury

at all “on a healthy plaintiff.” Pet. App. 15a.

This case should be an example of a clea rly

constitutional use of the prone position. Here, the clear

video evidence reveals that Nissen’s force was minuscule,

the duration was minimal, but the need for the maneuver

after the dangerous chase was maximal—as Ambler

had yet to be handcuffed. Pet. App. 24a. This Court

should accordingly grant this Petition because the need

for instruction on the prone position is important and

reoccurring. Sup. Ct. R. 10.

B. The Decision violated Plumhoff by failing

to decide the threat posed by Ambler as a

matter of law and failing to adopt an on-scene

reasonable officer’s perspective on Ambler’s

resistance without the benefit of hindsight.

At the first step of a qualified immunity analysis, the

question of whether an officer’s conduct was objectively

reasonable “requires a careful balancing of the nature

and quality of the intrusion on the individual’s Fourth

A mendment interests against the counter vailing

governmental interests at stake.” Plumhoff v. Rickard,

572 U.S. 765, 774 (2014) (citing Graham, 490 U.S. at 396).

In Plumhoff, this Court announced that when an officer

raises legal issues, it is the core responsibility of the

appellate courts “to decide such issues” and that such

issues may not be dismissed as fact questions. Id. at 773.

Below, the majority violated this cardinal rule by

dismissing as a fact question “whether [Ambler] pose[d]

an immediate threat to the safety of the officers or

others.” Graham, 490 U.S. at 396. Balancing the nature

of the intrusion against the government’s interests, this

amounted to holding that there was a fact question as to if

Ambler was so non-threating that he could not be subjected

to 90 seconds of handcuffing in the prone position despite

a 20-minute high-speed flight that endangered the Texas

citizenry. Pet. App. 28a, 59a.

But as discussed the last time this Court reviewed a

high-speed chase from the Fifth Circuit, the “immediacy

of the risk” posed by a suspect “is a pure question of

law.” Mullenix, 577 U.S. at 10. Said another way, “an

assessment of whether a suspect’s physical actions amount

to threatening behavior bearing on an excessive force

claim is a question of law.” Terrell v. Allgrunn, 114 F.4th

428, 438 (5th Cir. 2024) (citing Argueta, 86 F.4th at 1090).

Here, the majority conceded that when Nissen used

force, Ambler was unhandcuffed and “pulling his body

away from the ground” despite three officers struggling to

cuff him in the prone position. Pet. App. 12a. The majority

would send this case to trial based on the district court’s

belief that a jury could find Ambler was not a threat

because he was inexplicably “subdued” despite resisting to

the cuffs. Pet. App. 10a. Such a bare bones “fact question”

is “simply a restatement of the objective reasonableness

test”—not a true controversy. Mullenix, 577 U.S. at 10.

The videos reveal a reasonable officer could view

Ambler as an ongoing threat as a matter of law. Firstly,

Ambler was an enormous man who was unhandcuffed

and feet from an unsearched car that he had just crashed.

Secondly, Ambler’s prior high-speed flight suggested that

he had little to no regard for the lives of others, and that

he had demonstrated a willingness to flee police at all

costs. Pet. App. 29a. Any reasonable officer would say that

such a man is dangerous and cannot have his hands free.

The majority below also failed to properly state and

follow the law regarding how an officer’s split-second

choices are analyzed under the Fourth Amendment’s test.

Instead, the majority decided to second guess Nissen’s

split-second on-scene judgment that—in light of the prior

chase—the need to handcuff Ambler outweighed the risk

of not immediately attending to “what possible health

conditions he may or may not have had.” Pet. App. 37a

(Nissen’s testimony).

That is not permissible. Objective reasonableness is

examined “from the perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight.”

Plumhoff, 572 U.S. at 775. It is error to fail to account

“for the fact that police officers are often forced to make

split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of

force that is necessary in a particular situation.” Id.

Officers are allowed latitude for “mistaken beliefs” about

the amount of force necessary. Saucier v. Katz, 533 U.S.

194, 204 (2001).

With the prejudicial hindsight of knowing Ambler

died, the majority determined that Nissen was “reasoning

without context…” when he argued he could doubt

the sincerity of Ambler’s statement that he could

not breathe. Pet. App. 11a. But it is undisputed that

Ambler was resisting the handcuffs. Pet. App. 12a. The

only controversy presented is accordingly Ambler’s

subjective intent for resisting. See Graham, 490 U.S. at

399 (“subjective concepts” have “no proper place” in the

Fourth Amendment query).

But in the aftermath of a dangerous chase, a

reasonable officer is permitted to conclude that a suspect

who endangered others by fleeing at high-speed would also

engage in “ploys” to continue to evade arrest. See Salazar,

37 F.4th at 278. Here, Nissen made a judgment call as he

helped the deputies handcuff Ambler in the dark of night

in the wake of a high-speed chase. Pet. App. 11a. The Fifth

Circuit denied qualified immunity on the excessive force

and failure-to-intervene claims only because it knew in

hindsight that Nissen’s call was wrong—not because an

objectively reasonable officer could not have made it.

III. The Fifth Circuit’s Decision Contravened This

Court’s Qualified Immunity Precedent by Defining

Clearly Established Law at a High Level of

Generality.

This Court has established distinct guidelines for the

lower courts at the second step of the qualified immunity

analysis. Qualified immunity attaches when an official’s

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would

have known. White v. Pauly, 580 U.S. 73, 78 – 79 (2017).

Though a case does not have to be directly on point

for a right to be clearly established, “existing precedent

must have placed the statutory or constitutional question

beyond debate.” Kisela v. Hughes, 584 U.S. 100, 104 (2018)

(emphasis added). Said better, “immunity protects all but

the plainly incompetent or those who knowingly violate the

law.” Id. This Court has repeatedly had to correct lower

courts that define clearly established law too generally.

Id. (citing City and County of San Francisco v. Sheehan,

575 U.S. 600, 613 (2015)).

Here, the Fifth Circuit erred by denying immunity

when it failed to identify any prior precedent that found

an officer used excessive force, or impermissibly failed

to intervene, in a case with even generally similar facts.

“[S]pecificity is especially important in the Fourth

Amendment context” as this Court has emphasized it is

difficult to recognize how the relevant legal doctrines “will

apply to the factual situations the officer confronts.” Id.

(citing Mullenix, 577 U.S. at 305).

This case called for Nissen to control an enormous

suspect in the aftermath of a high-octane chase. In the

preceding chase, this suspect had endangered the general

public by crashing numerous times only to resume his

escape attempt. When Nissen arrived a minute after the

deputies, he saw this dangerous individual resisting being

handcuffed despite the efforts of two men. Pet. App. 38a.

Here, just as in Kisela, “the most analogous Circuit

precedent favors [Nissen].” Kisela, 584 U.S. at 106.

The Fifth Circuit’s precedent in Salazar stands for the

proposition that “what preceded” an arrest “matters” and

that after an extended attempt to escape at high-speeds,

an unrestrained suspect cannot “turn around, appear

to surrender, and receive the same Fourth Amendment

protection” from force. Salazar, 37 F.4th at 283 – 84;

accord Pet. App. 40a.

Even assuming that Circuit precedent can “constitute

clearly established law” it did not do so here. Sheehan, 575

U.S. at 614. The majority relied on Darden and Ramirez

for the proposition that the law was clearly established

that Nissen used excessive force and failed to intervene to

stop the deputies’ force. Specifically, the majority relied on

Darden for the proposition that officers needed to cease

force when they are told a subdued suspect is having a

medical emergency. Pet. App. 20a.

Neither of the majority’s proffered precedents involved

a preceding high-speed chase. Darden, 880 F.3d at 725; see

also Ramirez v. Martinez, 716 F.3d 369, 379 (5th Cir. 2013).

In fact, Darden made no effort to run at all, and instead

“immediately raised his hands in the air.” Id. The facts

presented by these two precedents could accordingly not

be more different. For similar reasons, it was not clearly

established that Nissen failed to intervene—especially

since he arrived late and had to trust the deputies were

using appropriate force. White, 580 U.S. at 80.

CONCLUSION

For these reasons, the Court should grant certiorari.

Repectfully submitted,

Stephen B. Barron

Counsel of Record

Wright & Greenhill P.C.

4700 Mueller Boulevard,

Suite 200

Austin, TX 78723

(512) 476-4600

sbarron@w-g.com

Counsel for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF A PPEA LS

FOR T H E FI F T H CIRCU I T, FILED

SEPTEMBER 10, 2024 . . . . . . . . . . . . . . . . . . . . . . . . 1a

A PPENDI X B — J U DGM EN T OF T H E

UNITED STATES COURT OF APPEALS

FOR T H E FI F T H CIRCU I T, FILED

SEPTEMBER 10, 2024 . . . . . . . . . . . . . . . . . . . . . . . 44a

APPENDIX C — ORDER OF THE UNITED

S TAT E S DI S T R IC T C OU RT FOR

T HE W EST ERN DIST RICT OF

T EX A S , AUST IN DI V ISION, FILED

SEPTEMBER 21, 2023 . . . . . . . . . . . . . . . . . . . . . . . 46a

A PPENDIX D — ORDER A ND REPORT

A N D R EC OM M EN DAT ION OF T H E

U NITED STATES M AGISTR ATE

JUDGE, UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF T E X A S , AUS T I N DI V I SION,

FILED JULY 31, 2023 . . . . . . . . . . . . . . . . . . . . . . . 49a

APPENDIX E — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT,

FILED JANUARY 2, 2025 . . . . . . . . . . . . . . . . . . . 91a

Appendix

APPENDIX A — OPINION

OF THE

UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT,

FILED SEPTEMBER 10, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-50696

JAVIER AMBLER, SR., INDIVIDUALLY,

ON BEHALF OF ALL WRONGFUL DEATH

BENEFICIARIES OF JAVIER AMBLER, II, ON

BEHALF OF THE ESTATE OF JAVIER AMBLER,

II, AND AS NEXT FRIENDS OF J.R.A., A MINOR

CHILD; MARITZA AMBLER, INDIVIDUALLY,

ON BEHALF OF ALL WRONGFUL DEATH

BENEFICIARIES OF JAVIER AMBLER, II, ON

BEHALF OF THE ESTATE OF JAVIER AMBLER,

II, AND AS NEXT FRIENDS OF J.R.A., A MINOR

CHILD; MICHELLE BEITIA, AS NEXT FRIEND

J.A.A., A MINOR CHILD; JAVIER AMBLER, II,

ESTATE OF JAVIER AMBLER, II,

Plaintiffs-Appellees,

versus

MICHAEL NISSEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:20-CV-1068

Appendix A

Before SMITH, WIENER, and DOUGLAS, Circuit

Judges.

Dana M. Douglas, Circuit Judge:

Several officers attempted to restrain an individual

following a high-speed chase. As they did so, the suspect

exclaimed that he was suffering congestive heart failure

and could not breathe. One Austin City Police Officer

continued to restrain the arrestee despite those pleas.

A few minutes later, the suspect died. His family later

brought a lawsuit in federal court, alleging theories

of excessive force and bystander liability against the

restraining officers. As pertinent here, the Police

Officer moved for summary judgment on qualified

immunity grounds. But the district court denied the

motion, reasoning that genuine fact disputes precluded a

judgment as a matter of law. Because those fact disputes

were material, we DISMISS for lack of jurisdiction and

REMAND for further proceedings.

Javier Ambler II was traveling on a Texas roadway

in the early morning hours without dimming the high

beams on his vehicle. A Texas sheriff’s deputy noticed

and signaled for Ambler to stop, but Ambler refused. A

high-speed pursuit then ensued as more officers joined the

chase. Authorities trailed Ambler for more than twenty

minutes along interstate highways and residential streets,

at times exceeding speeds of one-hundred miles per hour.

The chase ended when Ambler crashed into roadside trees

Appendix A

within the city limits of Austin, Texas. After the collision,

a deputy approached Ambler and the wrecked vehicle with

his gun drawn. As Ambler opened his car door, another

deputy ordered him to “get on the ground,” and discharged

a taser. Ambler fell to the ground from the shock, and two

deputies tried handcuffing him.

That was the moment when Austin City Policeman

Michael Nissen entered the scene. The events that

followed are in dispute. We nevertheless restate the facts

“in the light depicted by the videotape” Scott v. Harris, 550

U.S. 372, 381, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007), or

in this case, Nissen’s body-worn camera, which shows the

following: On arrival, Nissen advanced toward Ambler’s

vehicle with his gun drawn. He called out to the other

officers that the car “look[ed] clear” and then approached

the deputies, who were standing over Ambler’s body. One

of the deputies held a taser to Ambler’s neck and said:

“Give me your hand or I’m going to Tase you again.”

Ambler faintly exclaimed that he had congestive heart

failure. An officer then yelled: “Other hand. Give me your

hand.” As one officer instructed Ambler to lie “flat on [his]

stomach,” Ambler twice said, “I can’t breathe.”

The officers repeatedly told Ambler to stop resisting,

to which Ambler responded: “I am not resisting.” Using

his hands, Nissen then applied force to Ambler’s arms and

the back of his head, pushing it into the pavement. One of

the deputies exclaimed: “I think I just broke his finger.”

Another said “I am going to put my knee on this one to

control him. Let me know when you’re ready.” The officers

then handcuffed Ambler, who appeared limp. Less than

Appendix A

thirty seconds later, the officers raised Ambler to a seated

position and checked for a pulse. They felt nothing. Ambler

was taken to a hospital where he was pronounced dead;

the medical examiner’s report stated that his manner of

death was homicide.

Ambler’s family filed suit in federal district court

against Williamson County, the City of Austin Texas,

and several defendants, including Nissen.1 According to

the family, Nissen violated Ambler’s constitutional rights

by using excessive force and failing to intervene in the

altercation that allegedly cost Ambler his life. The district

court denied Nissen’s motion for summary judgment,

finding that Nissen could not avail himself of qualified

immunity. 2 Nissen now appeals that ruling.

We typically lack jurisdiction over non-final district

court orders, although a few exceptions exist. Numbered

1. Several defendants had been dismissed prior to Nissen’s

motion for summary judgment. Plaintiffs also alleged that the City

of Austin failed to provide Ambler reasonable accommodations, in

violation of Title II of the ADA, and is liable for Nissen’s Fourth

Amendment violation under Monell v. Dep’t of Soc. Servs. of City

of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).

Neither theory is relevant to this appeal. The district court dismissed

the deliberate indifference claim, and the arguments against the

City are not implicated in this appeal.

2. The factual findings and legal conclusions were outlined

in a report and recommendation issued by the Magistrate Judge.

Because the district court adopted the ruling, we refer to the opinion

throughout as the “district court’s ruling.”

Appendix A

among them, we may review interlocutory denials of

summary judgment on qualified immunity. But that

review is confined: We have jurisdiction to consider such

appeals only if they “turn[] on an issue of law.” Curran

v. Aleshire, 800 F.3d 656, 660 (5th Cir. 2015) (quoting

Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.2004) (en

banc)). 3 In other words, judging the genuineness of the

district court’s factual findings (i.e., whether they exist)

is off limits; determining whether those factual findings

have “legal significance” is fair game. Joseph ex. rel. Est.

of Joseph v. Bartlett, 981 F.3d 319, 331 (5th Cir. 2020)

(citation omitted). We review the latter issue de novo.

See, e.g., Flores v. City of Palacios, 381 F.3d 391, 394 (5th

Cir. 2004).

With those basics in mind, we must unfortunately

complicate matters further. Although the district court’s

factual findings are given near-complete deference, we

cannot disregard clear video footage when available: If

events in dispute are recorded, as they are here, we do not

accept any facts that are “blatantly contradicted by the

record” Scott, 550 U.S. at 380 (emphasis added); see also

Bros. v. Zoss, 837 F.3d 513, 517 (5th Cir. 2016) (Smith, J.)

(“The Supreme Court has created a narrow exception to

this jurisdictional limitation where the record blatantly

contradicts one party’s version of events.”). The summary

judgment standard otherwise remains the same: We

view all other facts “in the light most favorable to the

3. Because both qualified immunity issues involve questions of

law, we consider the merits of the disputes to the extent that they

are legally significant. See Argueta v. Jaradi, 86 F.4th 1084, 1088

(5th Cir. 2023).

Appendix A

nonmoving party and draw all reasonable inferences in

its favor.” Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir.

2009). A movant is entitled to a judgment as a matter of

law if they show “no genuine dispute as to any material

fact.” Fed. R. Civ. P. 56(a).

III

Plaintiffs’ complaint challenges Nissen’s allegedly

unconstitutional conduct under 42 U.S.C. § 1983, a statute

that holds state actors liable for depriving claimants of

their constitutional rights. In this case, Plaintiffs say

Nissen violated the Fourth Amendment, which protects

individuals from “unreasonable searches and seizures.”

U.S. Const. amend. IV. Plaintiffs contend that, by holding

Ambler’s body to the ground during a medical emergency,

Nissen used unreasonable force which was a contributing

cause of Ambler’s death.” Plaintiffs also contend that

Nissen should have protected Ambler from the other

officers’ unnecessary force. Nissen’s failure to do so,

Plaintiffs assert, means Nissen is equally liable for his

failure to intervene.

In response to Plaintiffs’ allegations, Nissen invokes

the doctrine of qualified immunity (“QI”), a defense

that shields government officials “from liability for civil

damages[.]” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S. Ct. 2727, 73 L. Ed. 2d 396 (1982). Whether an official

is entitled to such a defense depends on the answers to

two distinct legal questions. See Ashcroft v. al-Kidd, 563

U.S. 731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011).

The first asks whether the official violated another’s

Appendix A

constitutional rights; the other asks if the alleged violation

was “clearly established” when the misconduct occurred.

Id. The latter inquiry involves a review of legal authority

to see if caselaw has deemed similar police actions to be

illegal, thus putting state officials on “notice.” Id.

In this case, the district court denied QI based on an

inconclusive record and the presence of several factual

disputes. The issue presented for this appeal is whether

those disputes were “legally significant” and support the

district court’s holding. See Joseph, 981 F.3d at 331.

To resolve that issue, we begin with the constitutional

violation prong of the QI analysis. We accordingly consider

whether Nissen violated Ambler’s Fourth Amendment

right to be free from excessive force. Recovering under an

excessive force theory requires that Plaintiffs prove “(1)

an injury (2) which resulted directly and only from a use of

force that was clearly excessive, and (3) the excessiveness

of which was clearly unreasonable.” Ontiveros v. City

of Rosenberg, 564 F.3d 379, 382 (5th Cir. 2009) (quoting

Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007)). No one

disputes the first element—and for good reason. Ambler,

after all, suffered more than injuries; he died as officers

tried to arrest and detain him.

The crux of the parties’ dispute instead concerns the

force Nissen used to subdue Ambler and whether such

force was clearly excessive or unreasonable. Collapsing

these questions into a single inquiry, the district court

Appendix A

found that Plaintiffs raised material fact issues about

whether the level of force Nissen used was appropriate

given the circumstances of the encounter. It reached

that conclusion after considering the “totality of the

circumstances” from the “perspective of a reasonable

officer on the scene” and the well-established Graham

factors, named after the Supreme Court case bearing the

same name. Graham v. Connor, 490 U.S. 386, 396, 109 S.

Ct. 1865, 104 L. Ed. 2d 443 (1989). We address the district

court’s reasoning and the parties’ arguments below.

One Graham factor relevant to the excessive force

inquiry considers the severity of the arrestee’s crime. Id.

In Nissen’s view, the district court’s Fourth Amendment

analysis deemphasized this issue and, by extension, key

portions of our precedent. Doing so, according to Nissen,

was reversible error. In making his argument, Nissen

points to our ruling in Salazar v. Molina, 37 F.4th 278 (5th

Cir. 2022), a case involving a suspect who, like Ambler,

led officers on a high-speed chase. The chase in Salazar

culminated in the subject stopping and exiting his vehicle,

and then lying on the ground, presumably in an act of

surrender. Id. at 280. Despite the suspect’s submission,

however, a sheriff’s deputy immediately tased him. The

arrestee later sued, alleging excessive force. Id. We

concluded that the arrestee’s claim was meritless, partly

because the suspect could have posed a serious safety

threat after dangerously evading capture. Id. at 282.

Nissen claims here that Ambler similarly posed

a serious threat of bodily injury after leading officers

Appendix A

on a dangerous chase. And like the circumstances in

Salazar, Nissen asserts that any reasonable officer would

believe that Ambler was an ongoing threat until he was

restrained in handcuffs. Nissen accordingly contends that

he is entitled to judgment as matter of law on Plaintiffs’

excessive force claim. We hold a different view. For one

thing, the district court’s ruling did not undermine the

significance of the high-speed pursuit—nor could it, as

the state of Texas considers evading arrest via highspeed chase a felony, Tex. Penal Code § 38.04, and the

helicopter footage clearly shows Ambler weaving in and

out of traffic, jeopardizing the safety and wellbeing of

others, see Salazar, 37 F.4th at 281-82.

But, for another, the Fourth Amendment analysis

considers the facts and circumstances of each challenged

encounter. See Graham, 490 U.S. at 396. And although

some of Salazar’s factual details parallel Ambler’s initial

evasion, what happened after the pursuit in each case

is meaningfully distinct. Of particular note, the officers

in Salazar encountered the unrestrained suspect mere

seconds after the chase ended. Id. at 280. Such a timeframe

and scenario are unlike those at issue here: Nissen entered

the arrest scene nearly one minute after the chase. On

arrival, Nissen witnessed several officers surrounding

Ambler’s body with one officer pointing a taser to Ambler’s

neck. Distinguishing matters further, Ambler was gasping

as he presumably underwent a medical emergency, all the

while repeating “I have congestive heart failure,” and “I

can’t breathe.”

Relying on these distinctions, the district court

believed a separate Graham factor outweighed the

10a

Appendix A

severity of Ambler’s initial crime—that is, Ambler’s

immediate threat of danger. Graham, 490 U.S. at 396. The

court specifically held that the record raised a genuine

issue of “material fact as to whether a reasonable officer

would believe that [Ambler] . . . was subdued [or] an

immediate threat to safety when Nissen began helping

handcuff him.” The video footage does not blatantly

contradict that holding. Scott, 550 U.S. at 380. True

enough, Ambler engaged in dangerous behavior before

his arrest. Even still, based on the district court’s factual

findings, a reasonable jury could conclude that Ambler

lacked a means to evade custody when Nissen entered the

scene. See Joseph, 981 F.3d at 335 (“If the suspect lacks

any means of evading custody—for example, by being

pinned to the ground by multiple police officers—force is

not justified.”). A reasonable jury could therefore conclude

that Ambler posed little or no threat to Nissen or others

during the arrest. See id. The fact issues identified by

the district court in this context were therefore material

to Plaintiffs’ Fourth Amendment claim. And we lack

jurisdiction to consider anything more. See id. at 331.

Another Graham factor relevant to the excessive

force inquiry is whether Ambler was resisting or evading

arrest by flight. Graham, 490 U.S. at 396. According to

Nissen’s testimony, he was unaware whether Ambler had

been compliant before coming to the scene. But Nissen

said that, after he arrived, it was “clear” that Ambler

was not complying with commands; he was “physically

resisting [Nissen’s] efforts to place his hands behind his

back.” Plaintiffs view the facts differently. They contend

11a

Appendix A

that Ambler was not resisting but instead “instinctively

putting one arm on the ground to try to breathe.” For

its part, the district court held that the videos did “not

provide the clarity necessary to resolve the factual dispute

presented by the parties’ conflicting accounts.”

On appeal, Nissen contests the district court’s

characterization, reasoning that any reasonable officer

would have believed Ambler was resisting authority.

Although Ambler alerted the officers about his inability to

breathe, Nissen says he need not have credited “Ambler’s

statements that he was having a medical emergency.”

Nissen again references Ambler’s choice to evade arrest

by vehicle, explaining that an officer could have reasonably

been concerned about the sincerity of Ambler’s appeals.

“When a suspect has put officers and bystanders in harm’s

way,” Nissen stresses, “it is reasonable for officers to

question whether the now-cornered suspect’s purported

surrender is a ploy.” See Salazar, 37 F.4th at 282.

Applying such reasoning without context, however,

would undermine the fact-specific nature of the excessive

force analysis. After all, a criminal’s choice to engage in

unreasonable behavior does not give officer license to do

the same. To the contrary, an officer must use a “justifiable

level of force in light of the continuing threat of harm

that a reasonable officer could perceive.” Id. at 283. And

in this case, “the issue of whether reasonable officers in

this situation would have credited the warnings from

[Ambler] . . . is a factual question that must be decided by

a jury.” Darden v. City of Fort Worth, 880 F.3d 722, 730

(5th Cir. 2018).

12a

Appendix A

None of that means that Nissen acted unreasonably

as a matter of law. Perhaps Ambler was indeed refusing

to submit to the officers by pulling his body away from

the ground, and perhaps Nissen responded in a reasonable

manner. But viewing the evidence in Plaintiffs’ favor as we

must, however, it is just as believable that their allegations

are correct, and Ambler was in a struggle for his life.

In either case, such a dispute is reserved for a jury, not

summary judgment. Fed. R. Civ. P. 56(a) (stating that

a “court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material

fact.”). Because the court correctly considered the legal

significance of the factual disputes, we end our inquiry on

this issue here. See Joseph, 981 F.3d at 331.

To supplement their Fourth Amendment allegations,

Plaintiffs next contend that Nissen’s use of restraint was

an application of deadly force. Such a theory “is treated as

a special subset of excessive force claims.” Aguirre v. City

of San Antonio, 995 F.3d 395, 412 (5th Cir. 2021). And like

the excessive force analysis above, this particular inquiry

still calls for an objective reasonableness standard, see

Scott, 550 U.S. at 382-83, even though the analysis includes

an added layer: Analyzing the validity of a deadly force

allegation involves a two-pronged test. The first part asks

“whether the force used constituted deadly force”; the

second considers “whether the subject posed a threat of

serious harm justifying the use of deadly force.” Timpa v.

Dillard, 20 F.4th 1020, 1028 (5th Cir. 2021). Applying both

prongs to the facts here, the district court denied Nissen

13a

Appendix A

summary judgment. On appeal, Nissen contends that the

district court’s holding was in error and contradicted by

video evidence.

Nissen focuses his challenge on the first prong of

the analysis—whether the force used was deadly. Even

though he concedes that deadly force was unwarranted

in Ambler’s case, he nevertheless avers that the force he

applied was not deadly to begin with. In Nissen’s telling,

he was using “minimal force” or “soft hand force” to place

Ambler into handcuffs. That Ambler died because of such

minimal restraint was merely accidental and mainly the

result of Ambler’s poor health. Nissen reasons that it was

unforeseeable that applying “soft hand force” would result

in an injury, let alone death. In support of this argument,

Nissen points to video footage that he argues “conclusively

shows that no officer was using deadly force to try and kill

Ambler.”4 As the video depicts, Nissen restrained Ambler

for 90 seconds. Compared with other deadly force cases,

Nissen explains that such a period was minuscule. Indeed,

two similar cases the district court referenced involved

officers who restrained decedents for at least five minutes.

See, e.g., Aguirre, 995 F.3d at 413 (five minutes); Timpa,

20 F.4th at 1028 (fourteen minutes).

Nissen believes that no reasonable officer would have

known that using force on Ambler for such a brief period

would lead to his death. He contends that any conclusion

otherwise would essentially require denying QI in all

4. We note that the test isn’t whether an officer was trying to

kill Ambler, but whether the force is deadly—that is, could have

killed him. See Scott, 550 U.S. at 381.

14a

Appendix A

cases involving an accidental death. Such a result, in

Nissen’s telling, would trade the Fourth Amendment’s

general reasonableness standard for an outcome-oriented

one that contravenes Supreme Court authority. See Scott,

550 U.S. at 383. (“Whether or not [the officer’s] actions

constituted application of ‘deadly force,’ all that matters

is whether [the officer’s] actions were reasonable.”).

At least in this case, however, Nissen’s fears are

unfounded. As a threshold matter, whether a use of force

is “deadly” is a question of fact. Flores, 381 F.3d at 399

(“We lack jurisdiction to review the district court’s factual

finding that [the officer] used deadly force.”). 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.” Timpa, 20 F.4th at 1032 (quoting Gutierrez v. City

of San Antonio, 139 F.3d 441, 446 (5th Cir. 1998)). And the

district court here identified specific material fact issues

precluding summary judgment. For example, it considered

the recorded footage of the encounter. As noted, the video

shows an obese Ambler stating: “I have congestive heart

failure” and twice exclaiming “I can’t breathe.” Nissen

himself even acknowledged that one “obvious pitfall[] of

[a suspect lying face down] is, you know . . . people could

be at risk for positional asphyxiation.”

The district court also considered expert reports.

The medical examiner who performed Ambler’s autopsy

determined that Ambler’s death was a homicide and

found that it was caused by “congestive heart failure and

cardiovascular disease associated with morbid obesity in

combination with forcible restraint.” Plaintiffs’ medical

expert further opined that Ambler died from “a vicious

15a

Appendix A

cycle of respiratory distress from hypertensive crisis and

worsening heart failure pushed to physiological extremes

by subsequent tasing and forcible restraint.”

And while Nissen’s maneuver on a healthy plaintiff

may have resulted in no injury at all, it is well established

that state actors who unlawfully use excessive force take

their victims as they find them. Darden, 880 F.3d at 728.

Although that standard does not make minimal force

excessive when used on an eggshell plaintiff, a claimant

may nevertheless prevail on an excessive force claim

if a reasonable officer would be aware of a preexisting

health issue and then aggravates it. See Windham v.

Harris Cnty., 875 F.3d 229, 242 (5th Cir. 2017) (“Our law

is clear that the second [excessive force] prong does not

‘preclude [] recovery for aggravation of preexisting injury

caused by the use of excessive force.’”) (second alteration

in the original). In this case, the court identified enough

evidence to conclude that a reasonable officer could have

been aware of Ambler’s health issues giving his obvious

size and pleas for air. See, e.g., Timpa, 20 F.4th at 1033

(holding that reasonable jury could find “use of a prone

restraint with bodyweight force on an individual with

three apparent risk factors—obesity, physical exhaustion,

and excited delirium—’created a substantial risk of death

or serious bodily injury.’” (quoting Gutierrez, 139 F.3d at

446)). This was so even if Nissen applied force for a mere

ninety seconds.

Perhaps Nissen heard Ambler’s cries. Perhaps he

did not. And perhaps Nissen’s use of force, in his mind,

was minimal given the context. But the issues here do

not turn on Nissen’s subjective appraisals; the relevant

16a

Appendix A

inquiry is whether a “reasonable officer” would consider

applying Nissen’s level of force in the same situation. See

Graham, 490 U.S. at 396. The district court acknowledged

this reality and, to that end, did not legally err as a result.

If anything, the district court’s holding demonstrates

precisely why these Fourth Amendment cases are fact

intensive: Not all plaintiffs are the same, and harmless

force in one situation could be deadly force in another.

While Nissen would have us disregard the context of

his encounter with Ambler, doing so would trade nuance

for willful blindness. And contrary to his view, such an

approach is incompatible with the Fourth Amendment

reasonableness standard. See Graham, 490 U.S. at 396

(“Because ‘the test of reasonableness under the Fourth

Amendment is not capable of precise definition or

mechanical application,’ however, its proper application

requires careful attention to the facts and circumstances

of each particular case[.]”) (citation omitted) (quoting Bell

v. Wolfish, 441 U.S. 520, 559, 99 S. Ct. 1861, 60 L. Ed. 2d

447 (1979))).

In sum, the district court’s factual findings regarding a

Fourth Amendment violation support its legal conclusions.

We lack jurisdiction to “second guess” anything more. See

Joseph, 981 F.3d at 331.

Excessive force aside, Plaintiffs’ other basis for

establishing § 1983 liability stems from Nissen’s alleged

failure to intervene. According to Plaintiffs, Nissen

is liable under this theory because he was “present at

17a

Appendix A

the scene and [did] not take reasonable measures to

protect a suspect from another officer’s use of excessive

force.” Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995).

Section 1983 claimants may succeed on these “bystander

liability” claims when the officer “(1) knows that a fellow

officer is violating an individual’s constitutional rights;

(2) has a reasonable opportunity to prevent the harm;

and (3) chooses not to act.” Whitley v. Hanna, 726

F.3d 631, 330 (5th Cir. 2013) (cleaned up). In resolving

whether a bystander liability claim is viable, courts also

consider whether an officer “acquiesce[d] in” the alleged

constitutional violation. See Hale, 45 F.3d at 919.

When addressing Plaintiffs’ allegations here, the

district court identified a genuine dispute of material

fact as to whether Nissen failed to reasonably intervene.

Relying on video evidence and testimony, the court found

that Nissen helped with the arrest after he cleared

Ambler’s vehicle. It further pointed to evidence showing

that Nissen heard Ambler say he had congestive heart

failure and repeatedly say he could not breathe. Based

on Nissen’s proximity and the duration of force, the court

concluded that a reasonable jury could find that Nissen

had an opportunity to intervene. Nissen disagrees.

As a threshold issue, Nissen stresses that he cannot be

liable for the force other officers used outside his presence.

As for the force they used after he arrived, Nissen claims

it was insignificant. He argues that videos reveal that

he saw Ambler tased only once by the deputies—and

this occurred as they tried rolling Ambler back onto

his stomach after Ambler had “effectively resisted all

18a

Appendix A

three officers.” In Nissen’s telling, it was impossible for

him to know how Ambler acted between the time the

crash occurred and his arrival on the scene. As a policy

matter, Nissen contends that courts should give leeway

to late-arriving officers because they must make splitsecond assumptions based on incomplete information.

See Chivers v. Reaves, No. 1:13-CV-00171, 2017 U.S. Dist.

LEXIS 159397, 2017 WL 4296726, at *27 (D. Utah Sept.

26, 2017) (holding that “[i]t [was] plain that a reasonably

prudent officer arriving on scene with limited information

would be justified in assuming that . . . [a plaintiff] [was

a] potential threat[].”).

While it might be true that Nissen’s actions were

reasonable, the video evidence here does not blatantly

contradict Plaintiffs’ version of events or the district

court’s findings. Plaintiffs allege that Nissen had every

reasonable opportunity to mitigate and stop the use

of force once he arrived at the active arrest. After all,

Plaintiffs note, Nissen had at least two minutes when he

was within arm’s reach to realize that Ambler was not

resisting and posed no threat. Based on the video footage,

Plaintiffs say Nissen was in earshot of Ambler to hear his

breathing and pleas for help. Nissen was also present as

the deputies tased Ambler at least once. It is true that

Nissen’s expert report explained that the other officer’s

taser was set to a mode that “does not penetrate deeply

enough to affect any human muscles or organs.” But as

the district court found, Plaintiffs’ expert concluded that

Ambler died from “a vicious cycle of respiratory distress

from hypertensive crisis and worsening heart failure

pushed to physiological extremes by subsequent tasing

and forcible restraint.”

19a

Appendix A

Given those contradicting facts, the court held that

a jury could reasonably determine that Nissen had an

opportunity to stop the excessive force but failed to do

so. We agree that the factual disputes the district court

identified are material. Ambler’s pleas for help, coupled

with his arguably obvious medical distress, may have

alerted a reasonable officer to intervene in the ordeal

to stop the tasing and continued use of force. See, e.g.,

Carroll v. Ellington, 800 F.3d 154, 178 (5th Cir. 2015)

(affirming denial of summary judgment when it was

disputed whether officer was present for taser strikes of

restrained individual). We have no authority to engage

Nissen’s arguments further on this claim because they

turn on factual disputes alone.

Our analysis does not end after a plaintiff clears QI’s

first hurdle. As noted above, plaintiffs must also meet the

“clearly established” prong to avoid summary judgment.

Doing so requires them to point to a case where an official,

faced with similar circumstances as the defendant, was

held to have violated the Constitution. White v. Pauly,

580 U.S. 73, 79, 137 S. Ct. 548, 196 L. Ed. 2d 463 (2017).

Although the law can be clearly established “despite

notable factual distinctions between the precedents relied

on and the cases then before the Court,” Hope v. Pelzer,

536 U.S. 730, 740, 122 S. Ct. 2508, 153 L. Ed. 2d 666

(2002), relying on generalized principles is not enough: The

pertinent decisions must give “reasonable warning that

the conduct then at issue violated constitutional rights”

White, 580 U.S. at 79.

20a

Appendix A

We first address excessive force. Citing Darden

v. City of Fort Worth, 880 F.3d at 733-34, the district

court held that Nissen violated clearly established

law. In Darden, officers performed a no-knock raid to

execute a narcotics warrant inside a residence. During

his subsequent arrest, arrestee Darden was thrown to

the ground, tased, choked, and punched. He was “obese”

and died from a “heart attack” during the encounter. Id.

at 725. Throughout Darden’s arrest “other people in the

residence were repeatedly yelling that Darden could not

breathe.” Id. at 726. A unanimous panel of this court held

it clearly established that “the degree of force an officer

can reasonably employ is reduced when an arrestee is not

actively resisting.” Id. at 733 (collecting cases). Because

Darden was issued years before the relevant encounter

here, the district court held that it applied to this case;

Nissen, according to the district court, was therefore on

notice that it was unlawful to use excessive force against a

person who was on the ground, not resisting, and possibly

unable to breathe.

Nissen disputes that holding, arguing that the district

court’s rehashing of Darden “glossed” over the relevant

facts without considering the relevant distinctions. Most

importantly, Nissen explains, the Darden court held that

the force used on an arrestee was excessive partly because

he “was not suspected of committing a violent offense.” Id.

at 729 (citation omitted). That issue alone, Nissen thinks,

makes Darden counterfactual to the case here. Indeed,

Nissen argues that Ambler was suspected of committing a

21a

Appendix A

crime that revealed an abject intention to endanger others

and escape at all costs.

In making his argument, however, Nissen seems to

suggest that Ambler continued fleeing throughout the

encounter, despite the clear video evidence suggesting

otherwise. To be sure, “where a suspect initially resists,

force must be reduced once he has been subdued.” Bagley

v. Guillen, 90 F.4th 799, 803-04 (5th Cir. 2024) (internal

quotation marks, alteration, and citation omitted). As

explained above, there is a fact dispute about whether

Ambler was subdued when Nissen arrived on the scene.

If Ambler was indeed compliant and not resisting

arrest, then the continued use of force, particularly after

Ambler said he had congestive heart failure and could

not breathe, necessarily would be excessive. See id.; see

also Timpa, 20 F.4th at 1038 (determining that law in

2016 clearly established that if plaintiff was “subdued and

nonthreatening by nine minutes into the restraint, then

the continued use of force for five additional minutes was

necessarily excessive”). To that end, such a circumstance

would, as the district court found, parallel Darden. On

that basis, the district court did not commit legal error.

Turning last to Plaintiffs’ § 1983 bystander claim on

QI’s second prong, the district court held that an officer

violates clearly established law in excessive force cases

if the officer “knew a constitutional violation was taking

place and had a reasonable opportunity to prevent the

harm.” Hamilton v. Kindred, 845 F.3d 659, 663 (5th Cir.

22a

Appendix A

2017). In this context, the district court concluded that

tasing someone who is subdued and does not pose a threat

can constitute excessive force. See Ramirez v. Martinez,

716 F.3d 369, 379 (5th Cir. 2013); Newman v. Guedry, 703

F.3d 757, 764 (5th Cir. 2012).

On appeal, Nissen again points to Ambler’s decision

to flee from police by motor vehicle. He contends that no

clearly established case put Officer Nissen on notice that

the deputies—in subjecting Ambler to a taser and prone

restraint after a high-speed chase—violated Ambler’s

constitutional rights. But, again, the district court

identified a fact dispute about whether Ambler was visibly

undergoing a medical emergency when Nissen arrived at

the active arrest. It also found a dispute about whether

Nissen had time to decide that force was not necessary

and try to stop it. See Hamilton, 845 F.3d at 663. If

Plaintiffs’ view of the encounter prevails at trial, Nissen

had fair notice that participating in another officers’ use

of excessive force gives rise to liability. See, e.g., Carroll,

800 F.3d at 178 (affirming denial of summary judgment

where it was disputed whether officer was present for

taser strikes of restrained individual); Timpa, 20 F.4th at

1039 (holding that it was clearly established in 2016 that

officers who stood “mere feet away” from plaintiff during

fourteen-minute restraint were subject to bystander

liability). The district court did not legally err in reaching

that conclusion.

One final point bears mentioning. In reaching our

conclusion today, we deferred to the district court’s sound

identification of genuine factual disputes and reserved

23a

Appendix A

the weighing of evidence for the jury’s capable hands. In

doing so, we have not only allowed the district court space

to do its job, but we have given jurors the space to do

theirs. See Joseph, 981 F.3d at 331. So, for all the dissent’s

inflammatory rhetoric, it makes at least one salient point:

The majority’s ruling indeed “serves . . . this plaintiff.” See

post, at 15. Absent from the dissent’s observation, however,

is the value our decision offers this defendant. A restrained

judiciary, after all, benefits all parties in equal measure. In

the dissent’s view, our decision today in this interlocutory

appeal will lead to an endless parade of horribles. But to

the extent the dissent’s concerns are valid, it should direct

its criticisms at the Federal Rules of Civil Procedure, see

Fed. R. Civ. P. 56(a), or Supreme Court authority, Mitchell

v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 86 L. Ed. 2d

411 (1985), not this opinion. See also Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d

202 (1986) (“[T]he judge’s function is not himself to weigh

the evidence and determine the truth of the matter but

to determine whether there is a genuine issue for trial.”).

As outlined above, Nissen fails to raise pure legal

issues and instead challenges the district court’s factual

findings. Nissen has therefore failed to invoke this court’s

limited interlocutory jurisdiction and this appeal is

accordingly DISMISSED. This case is REMANDED for

further proceedings.

24a

Appendix A

Jerry E. Smith , Circuit Judge, dissenting:

The majority, albeit with the most wholesome of

intentions, preaches that qualified immunity is “a defense

that shields state officials from being held accountable for

their misconduct.” Op. at 5 (citation omitted). Given that

opening, what follows is no surprise.

In the wake of a high-speed chase involving three

crashes and triple digit speeds, Officer Michael Nissen

used a modicum of force to restrain Javier Ambler. Nissen

spent about a minute controlling Ambler’s hand—without

touching any other part of his body—and then no more

than 20 seconds applying pressure to Ambler’s upper back

and head. That is hardly anything out of the ordinary,

especially in the immediate aftermath of Ambler’s

extended and reckless flight from justice that endangered

the public, the officers, and Ambler himself. Indeed, that

is precisely the type of controlled and measured response

we expect from police reacting to a manifestly dangerous

suspect. Tragically, in part because of an imperceptible

medical condition, Ambler died during the arrest as a

result of the restraint.

Qualified immunity exists for just this sort of a

case. A police officer made an appropriate, split-second

judgment about reasonable force in light of the gravity of

the situation and is now tied up in a federal lawsuit, facing

possible civil damages, because of it. Yet the majority

jettisons QI for officers who do just that.

Because the majority makes it impossible for officers

to receive qualified immunity in cases of accidental death,

25a

Appendix A

no matter how reasonable their use of force was in context,

I respectfully dissent.

Some of the major ity ’s er rors stem from its

misconception of the appropriate standard of review. It

avers that “judging the genuineness of the district court’s

factual findings (i.e., whether they exist) is off limits.” Op.

at 4 (citation omitted). Yet, though some judges, in error,

have suggested that we are forbidden to do so,1 “we are

permitted to review genuineness where, as here, video

evidence is available.” Argueta v. Jaradi, 86 F.4th 1084,

1088 (5th Cir. 2023) (citations omitted). There are multiple,

clear videos of what happened. Therefore, reviewing the

district court’s determinations of genuineness is not off

the table.

II.

One might charitably express a narrow version of what

the majority advances as follows:

Ambler died. Deadly force is a question of fact.

There is no question that if Nissen had walked

up and shot Ambler in the head he would be

liable. So deadly force is obviously material.

Ergo, we deny QI.

The practical problem is two-fold. First, the majority

essentially eliminates qualified immunity in cases of

1. See Argueta v. Jaradi, 94 F.4th 475, 476-81 (5th Cir. 2024)

(Douglas, J., dissenting from denial of rehearing en banc).

26a

Appendix A

accidental death, almost all of which are situations where

deadly force is not warranted. If it were warranted, they

would likely not be accidental. That means “whether force

is deadly” will almost always be material in accidentaldeath cases. Since deadliness is a fact question, a defendant

will never get QI.

That is error. If we accept the basic rationale behind

qualified immunity, this sort of an accidental-death case is

squarely within its heartland. But instead, the majority’s

rationale categorically eliminates QI from this set of cases.

Second, the majority’s reasoning creates a perverse

incentive for police to use deadly force when it is justified,

even if the situation can be deescalated. This case is the

perfect example: To avoid liability, Nissen should have shot

Ambler during the chase (when deadly force was more

likely justified to protect the public). In the majority’s

view, waiting and trying to defuse the situation with

minimum force increased, counterintuitively, Nissen’s risk

of liability. That is an odd result, indeed.

Obviously, we are not policymakers, so none of

the above matters on its own accord. I offer it only to

demonstrate the grave consequences of the majority’s

legal error.

II.

And what a legal error! Nissen should receive qualified

immunity from both claims at both prongs of the standard

QI analysis.

27a

Appendix A

Nissen did not use constitutionally excessive force.

In excessive-force claims, the reasonableness of

an officer’s conduct depends on the “facts and

circumstances of each particular case, including

[1] the severity of the crime at issue, [2] whether

the suspect poses an immediate threat to the

safety of the officers or others, and [3] whether

he is actively resisting arrest or attempting to

evade arrest by flight.”

Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (quoting

Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104

L. Ed. 2d 443 (1989)). These are the so-called Graham

factors, each of which supports Nissen’s use of force

against Ambler.

The majority agrees that the first Graham factor

supports Nissen. It rightly notes that “the state of Texas

considers evading arrest via high-speed chase a felony,

Tex. Penal Code § 38.04, and the helicopter footage

clearly shows Ambler weaving in and out of traffic,

jeopardizing the safety and wellbeing of others.” Op. at

7 (citation omitted). The majority wrongly emphasizes

the district court’s weighing of the factors. “[T]he

ultimate determination of Fourth Amendment objective

reasonableness is a question of law.” White v. Balderama,

153 F.3d 237, 241 (5th Cir. 1998) (per curiam) (citation

28a

Appendix A

omitted). Therefore, we may freely weigh the first Graham

factor in favor of Nissen.

The majority does not grapple with the degree to which

this factor supports Nissen’s use of force. Undeterred

by multiple crashes, Ambler continued to flee at tripledigit speed through residential neighborhoods—gravely

endangering many innocent lives to evade a routine traffic

stop. This weighs strongly in favor of Nissen.

On to the second Graham factor, “whether the suspect

poses an immediate threat to the safety of the officers or

others.” Graham, 490 U.S. at 396. The majority suggests

that there is a genuine dispute of material fact “whether

a reasonable officer would believe that [Ambler] . . . was

subdued [or] an immediate threat to safety when Nissen

began helping handcuff him.” Op. at 8 (citation omitted).

But this factor—which may or may not be the most

important in this context2 —”is a question of law left to the

court.” Argueta, 86 F.4th at 1092. And with the benefit of

two videos of Ambler’s arrest, this factor readily resolves

in favor of Nissen.

There are several reasons why a reasonable officer

in Nissen’s position might act as he did. First, Ambler

2. ”[T]he second factor—whether there is an immediate threat

to safety—is generally the most important factor in determining the

objective reasonableness of an officer’s use of deadly force.” Baker v.

Coburn, 68 F.4th 240, 247-48 (5th Cir. 2023) (citation omitted). I will

address the argument that this was a use of deadly force.

29a

Appendix A

had just come from of a high-speed chase fleeing a traffic

stop for failure to dim his high beams. That suggests (1)

that Ambler had little to no regard for the lives of others,

(2) that Ambler had a demonstrated willingness to flee

the police at all costs, and (3) that maybe this was not

just about a minor traffic infraction. Maybe Ambler had

something else in the car that heightened his desire to

flee. Maybe he was mentally ill or on drugs. Each of these

is a meaningful possibility that a reasonable officer would

consider. Ambler’s flight alone makes this Graham factor

weigh in favor of Nissen.

But the flight was not the only fact known to Nissen

from which he could have reasonably inferred Ambler’s

dangerousness. Inter alia, Ambler—at 410 pounds—was a

very large individual, who was still unrestrained and feet

from an unsearched car, despite the efforts of multiple

other police officers who had deployed a taser. It boggles

the mind to think that a reasonable officer would not

perceive Ambler as a meaningful threat.

Resisting this conclusion, the majority attempts to

distinguish Salazar v. Molina, 37 F.4th 278 (5th Cir. 2022),

in which, after a considerably less dangerous chase,

Salazar abruptly stopped his vehicle. He quickly

got out, dropped to his knees next to the car,

and raised his hands. He then lay on the ground

with arms above his head and legs crossed. Five

seconds after stopping his car, Salazar was

lying prone on the ground.

30a

Appendix A

Id. at 280. Despite the clear surrender, the police tased

Salazar. Our court rejected Salazar’s excessive force

claim, holding that

when a suspect has put officers and bystanders

in harm’s way to try to evade capture, it is

reasonable for officers to question whether the

now-cornered suspect’s purported surrender is

a ploy. That’s especially true when a suspect is

unrestrained, in close proximity to the officers,

and potentially in possession of a weapon.

Id. at 282. Here, “[Ambler] ha[d] put officers and

bystanders in harm’s way to try to evade capture.” Id.

He was also “is unrestrained, in close proximity to the

officers, and potentially in possession of a weapon.” Id.3

The majority attempts to distance itself from Salazar:

“Distinguishing matters further, Ambler was gasping as

he presumably underwent a medical emergency, all the

while repeating ‘I have congestive heart failure,’ and ‘I

can’t breathe.’” Op. at 8 (emphasis added). But what the

majority labels a distinction is the central analogy. The

majority gets the presumption precisely backward. In the

3. I grant that whether Ambler was “potentially in possession

of a weapon” is the weakest point of comparison. But it is not

inconceivable, given Ambler’s size and proximity to the relatively

unsearched car. More importantly, this is just one of many factors

that heighten the already reasonable assumption that Ambler’s

actions were a ploy. That’s especially true when every single one

of the other facts mentioned in this holding from Salazar is on all

fours with this case.

31a

Appendix A

context of this sort of a chase, when a reasonable officer

hears Ambler’s pleas, he reasonably assumes “ploy,” not

“medical emergency.” See Salazar, 37 F.4th at 282. Or,

at the very least, he is reasonably entitled to make that

presumption.4

The majority fixates on one other aspect of Ambler’s

situation, that “a reasonable jury could conclude that

Ambler lacked a means to evade custody when Nissen

entered the scene.” Op. at 8 (citation omitted). This falls

properly under the third Graham factor, “whether he is

actively resisting arrest or attempting to evade arrest by

flight,” 490 U.S. at 396, so I will address it there.

But factor two—”whether the suspect poses an

immediate threat to the safety of the officers or others,”

id.—unambiguously favors Nissen.

Thus far, we are faced with an unrestrained suspect

who poses a substantial threat to officers in the wake of a

serious crime indicating a very low regard for human life.

4. The majority also points to Nissen’s comparatively late

arrival, though it admits the difference between the cases is

measured in mere seconds. The majority does not explain why time of

arrival—especially when still so close to the initial contact—matters

in applying the Salazar presumption. The Salazar presumption is

that somebody who is willing to flee at great cost to others might

also be willing to lie to officers to get out of a tricky spot. Why

that has anything do with a difference in arrival times escapes my

imagination.

32a

Appendix A

Those factors alone justify Nissen’s light-touch application

of force to Ambler.

The final Graham factor is “whether he is actively

resisting arrest or attempting to evade arrest by flight.”

Id. (emphasis added). I agree with the majority that any

attempt by Ambler to flee the scene would have likely

failed. 5 But the third Graham factor includes “actively

resisting arrest.” Id. And it’s hard to characterize

Ambler’s actions as anything other than that. Two

minutes and fifteen seconds pass between the time the

first officer makes physical contact with Ambler and

the time the handcuffs click. In those two-plus minutes,

Ambler ignored command after command, continuously

and rather obviously providing physical resistance to the

multiple officers trying to cuff him. It does not get more

clear-cut than that.

Yet the majority proffers two objections to the clarity

of this situation. First, the majority concludes that “a

reasonable jury could conclude that Ambler lacked a means

to evade custody when Nissen entered the scene.” Op. at

8 (citation omitted). Its best authority for the relevance of

that conclusion is an absurdly overbroad reading of Joseph

v. Bartlett, 981 F.3d 319, 335 (5th Cir. 2020).

Joseph held that “[i]f the suspect lacks any means of

evading custody—for example, by being pinned to the

ground by multiple police officers—force is not justified.”

Id. The only way that might matter in this case is if one

5. Though this is only because of multiple officers’ applying to

Ambler the precise sort of force that the majority finds objectionable.

33a

Appendix A

reads the court to be imposing a categorical bar on the

use of any force when a suspect is on the ground. But that

is quite clearly not what Joseph stands for.

First, the language immediately before this passage

makes it plain that subduing a suspect means that officers

must reduce but not necessarily cease force. Second, it

conditions that reduction in force to require the actual

subduing of the suspect. And Ambler was far from

subdued. That differs significantly from the situation in

Joseph.6 And third, even if Nissen’s toes edged beyond the

boundary set forth in Joseph, we don’t jettison the other

Graham factors—which obviously and strongly support

a robust use of force in this case.7

6. In Joseph, a schizophrenic man who had been seen standing

by a middle school jumped behind a convenience store counter while

avoiding the police. He promptly crumpled into the fetal position.

Then, “Officer Martin, weighing 300 pounds, immediately placed his

full weight onto Joseph, who was still lying on the floor with his legs

bent toward his chest.” 981 F.3d at 326. And the use of force continued

for some time, including “deploy[ing] [a] taser for eleven seconds,”

“jabb[ing] [a baton] downward, striking Joseph at least twice with

the pointed end,” tasing for another three seconds, “kick[ing] Joseph

twelve to thirteen times while holding onto the counter,” “punching

Joseph in the head three times,” “drag[ging] Joseph toward [a] wider

area,” then “punch[ing] Joseph in the face [another] three times,”

and closing out the “scrum” with “punch[ing] Joseph in the head

[yet another] six times.” Id. at 326-27. Read in context, the court

was concerned about the timing of all this in relation to the initial

pinning. See id. at 335.

7. Especially relative to Joseph—in which the police used

significantly more force against a significantly less dangerous person

because of a far less serious offense. See supra note 5.

34a

Appendix A

Second, the majority attempts to distinguish Salazar

by appealing to “the fact specific nature of the excessive

force analysis.” Op. at 9. Beyond this vague handwringing,

we get very little. Presumably, the majority means to

impute its attempt to distinguish Salazar under the second

Graham factor here. But that distinction proves the

central analogy between the cases on the third factor, just

as it does on the second factor. Indeed, the third Graham

factor also implicates reasonable concerns about the

genuineness of a surrender. See Salazar, 37 F.4th at 284.

Because Nissen could reasonably doubt the genuineness

of Ambler’s pleas, he could reasonably interpret Ambler’s

attempts to move away from officers as resistance rather

than as “a struggle for his life.” Op. at 10. 8

Because all three Graham factors support Nissen,

Ambler’s excessive-force claim fails on the first prong of

qualified immunity.

The majority separately treats plaintiffs’ claims of

deadly force. That methodology is error as a matter of

law. Though “[c]laims that law enforcement unreasonably

utilized deadly force are treated as a special subset of

excessive force claims,” Aguirre v. City of San Antonio,

995 F.3d 395, 412 (5th Cir. 2021), the constitutional inquiry

is still governed by the Graham factors.9

8. And that’s assuming Ambler’s actions were ambiguous. But

they were not.

9. All that changes is which factors are emphasized. “When an

officer uses deadly force, the second Graham factor is generally the

most important.” Singleton v. Casanova, No. 22-50327, 2024 U.S.

35a

Appendix A

The majority relied on the important decision in

Tennessee v. Garner, 471 U.S. 1, 3, 105 S. Ct. 1694, 85

L. Ed. 2d 1 (1985), to obscure the relevant analysis. In

particular, the majority reads Garner to establish some

sort of threshold inquiry in deadly-force cases: “Deadly

force is objectively unreasonable ‘unless it is necessary to

prevent [a suspect’s] escape and the officer has probable

cause to believe that the suspect poses a significant threat

of death or serious physical injury to the officer or others.’”

Op. at 10 (quoting Garner, 471 U.S. at 3). That is error

twice over.

First, the Supreme Court has flatly rejected this

errant reading of Garner. See Scott v. Harris, 550

U.S. 372, 382, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007).

Indeed, “Garner did not establish a magical on/off switch

that triggers rigid preconditions whenever an officer’s

actions constitute ‘deadly force.’” Id. Instead, “Whether

or not [Nissen]’s actions constituted application of ‘deadly

force,’ all that matters is whether [Nissen]’s actions

were reasonable.” Id. at 383. Having already applied the

Graham factors and found that each one favors Nissen,

that ends our inquiry.

Second, the majority curiously recontextualizes

Garner’s language to untether it from Garner’s very

different set of facts. In full, the passage from Garner

reads,

This case requires us to deter mine the

constitutionality of the use of deadly force to

App. LEXIS 14073, 2024 WL 2891900, at *31 n.17 (5th Cir. June 10,

2024) (unpublished) (citation and internal quotation marks omitted).

36a

Appendix A

prevent the escape of an apparently unarmed

suspected felon. We conclude that such force

may not be used unless it is necessary to prevent

the escape and the officer has probable cause

to believe that the suspect poses a significant

threat of death or serious physical injury to the

officer or others.

Garner, 471 U.S. at 3 (emphasis added). The use of “such”

harkens back to the facts of that case, which involved

shooting a fleeing suspect with live rounds to prevent his

escape. See id. at 4. That sort of force that is very different

from what was present here, and consequently it calls for

a different sort of inquiry.

In short, none of the facts raised by the majority in

this section materially bears on whether Nissen’s actions

were reasonable in light of the Graham factors. Whether

Nissen heard Ambler does not matter because Nissen

could reasonably disregard Ambler’s complaints in the

context of his flight. Whether Nissen’s actions did or did

not in fact lead to Ambler’s death, as the medical examiner

suggested, doesn’t matter because it does not cast doubt

on the reasonableness of Nissen’s split-second decisions at

the time of the accident. Even Nissen’s admission about the

risks of the prone position in the abstract does not matter

because of the negligible amount of time Nissen forced

Ambler to be quasi-prone in this case. That such a position

“could be” dangerous to “some people” “depending on the

situation” is not enough to send this case to trial.10

10. In this way, the majority arbitrarily denies QI to officers

in another category of situations. As soon as a suspect goes prone,

37a

Appendix A

In Nissen’s words,

In this specific situation, Mr. Ambler’s size

was certainly a consideration that I had when

I was attempting to take him into custody, but

the other part of that, what they also teach us

at the Academy is that you have to weigh those

considerations against the situation that you are

facing. So in this situation, where I am assisting

trying to take an individual into custody who

just spent the last 20-or-so minutes driving

recklessly through the City of Austin, crashing

multiple times, I had to weigh the risk of not

taking him into custody quickly against what

possible health conditions he may or may not

have had.

Nissen’s testimony confirms what the video plainly

shows—that he acted reasonably.

We should also extend qualified immunity because

the law is not clearly established. The majority only gets

to “clearly established” by stringing together several

cases—none of which contains all the major facts in this

case—at an inappropriately high level of generality. But

applying the appropriate level of generality is central to

this part of the QI inquiry:

for however long, if the suspect happens to die later, the case must

go to trial. That would be a bizarre result, but seemingly one that

the majority’s reasoning dictates.

38a

Appendix A

What clearly established means depends

largely upon the level of generality at which

the relevant legal rule is to be identified. An

official does not lose qualified immunity merely

because a certain right is clearly established

in the abstract. Officials should receive the

protection of qualified immunity unless the law

is clear in the more particularized sense that

reasonable officials should be on notice that

their conduct is unlawful.

Cantrell v. City of Murphy, 666 F.3d 911, 919-20 (5th Cir.

2012) (cleaned up). Recall the high bar required to deny

QI: “Qualified immunity is justified unless no reasonable

officer could have acted as Officer [Nissen] did here, or

every reasonable officer faced with the same facts would”

have acted differently. Mason v. Faul, 929 F.3d 762, 764

(5th Cir. 2019).

The law is not clearly established because there

is no case that is factually similar, even at a low level

of generality. The majority fails to identify a single

decision that found an excessive-force violation based

on (1) controlling a subject in the aftermath of a highoctane chase; (2) let alone an unhandcuffed subject in

the aftermath of a high-octane chase; (3) and a subject

who crashed and resumed his attempt at escape several

times; (4) and whose car had not yet been searched; (5)

and who was an exceedingly large individual (6) who’d

been able to avoid being handcuffed despite the efforts

of multiple able-bodied police officers. Keep in mind this

was all over a busted light. Ambler’s desperate attempt

39a

Appendix A

to escape suggests any number of additional facts that

justify Nissen’s actions.

The majority leans on Darden:

In Darden, officers performed a no-knock

raid to execute a narcotics warrant inside

a residence. During his subsequent arrest,

arrestee Darden was thrown to the ground,

tased, choked, and punched. He was obese and

died from a heart attack during the encounter.

Throughout Darden’s arrest other people in

the residence were repeatedly yelling that

Darden could not breathe. A unanimous panel

of this court held it clearly established that the

degree of force an officer can reasonably employ

is reduced when an arrestee is not actively

resisting. Because Darden was issued years

before the relevant encounter here, the district

court held that it applied to this case; Nissen,

according to the district court, was therefore

on notice that it was unlawful to use excessive

force against a person who was on the ground,

not resisting, and possibly unable to breathe.

Op. at 16-17 (cleaned up).

But the many differences from Darden are striking.

One is sufficient: Darden never attempted to escape the

police. Here’s how the court described the beginning of

that raid:

40a

Appendix A

When the police first arrived at the house, the

entry team broke down the front door with a

battering ram, yelled that they were police, and

ordered everyone to get down. A large man,

later identified as Darden, was kneeling on the

seat of a couch near the door when the officers

first entered, and he immediately raised his

hands in the air.

Darden v. City of Fort Worth, 880 F.3d 722, 725 (5th Cir.

2018). Darden made no effort to run at any point. That

stands in striking contrast to Ambler’s prolonged flight

with reckless disregard for the lives of others.

The majority pushes back by insisting that Nissen’s

argument depends on the premise that “Ambler continued

fleeing throughout the encounter, despite the clear video

evidence suggesting otherwise.” Op. at 17. Even were that

portrayal of facts correct, that misses the point: Ambler’s

immediately prior flight fundamentally changes the

analysis, particularly because he was not yet restrained.

That’s where Salazar comes in. Salazar stands for

the proposition that lack of restraint after an extended

attempt to escape justifies a heightened used of force. See

37 F.4th at 284. The majority faults the analogy to Salazar,

because unlike as in Salazar,

Nissen entered the ar rest scene nearly

one minute after the chase. On arrival,

Nissen witnessed several officers surrounding

Ambler’s body with one officer pointing a taser

41a

Appendix A

to Ambler’s neck. Distinguishing matters

further, Ambler was gasping as he presumably

underwent a medical emergency, all the while

repeating “I have congestive heart failure,” and

“I can’t breathe.”

Op. at 8. But these distinctions are not as extreme as the

majority makes them out to be.11 And, more importantly,

it tiptoes away from the relevant standard here. Salazar

creates enough ambiguity that the law is not clearly

established. At the time of the officers’ respective arrivals,

both subjects remained unrestrained. Sure, officers

were hovering over Ambler, but that hardly constitutes

restraint, given Ambler’s size, proximity to the unsearched

car, and demonstrated hostility to arrest.12

III.

For largely similar reasons, the failure-to-intervene

claim fails at both prongs of the analysis. Taser

deployment easily gets expanded leeway after a highspeed chase. See Salazar, 37 F.4th at 284. If the officers

11. For example, the gap between the arrival of the officers in

Salazar (eight seconds), 37 F.4th at 280, and Nissen here (“nearly

one minute”), is still a matter of seconds.

12. For what it’s worth, the chase here was also substantially

longer and more dangerous than that in Salazar (in which the

chase lasted 5 minutes and topped out at 70 mph). Id. So, even if

the treatment of the suspects between the cases were meaningfully

different, the discrepancy would be justified because officers could

reasonably believe that Ambler was considerably more dangerous

than Salazar.

42a

Appendix A

were not clearly committing a constitutional violation,

then Nissen cannot be faulted for failing to intervene.13

And Nissen gets even broader leniency because of his late

arrival.14 Neither the majority nor the briefing serves up a

case that overcomes the doubt raised by Salazar as to the

law in these circumstances. Indeed, neither Ramirez v.

Martinez, 716 F.3d 369, 379 (5th Cir. 2013), nor Newman

v. Guedry, 703 F.3d 757, 764 (5th Cir. 2012), involved a

flight from justice at all.

*****

The majority’s opinion serves nobody but this plaintiff.

Police will be unduly subject to litigation because of

circumstances completely beyond their control. Suspects

face greater danger because police now have an incentive

to use deadly force instead of de-escalating.

13. Though not legally relevant here, it’s worth noting that

the officers were acquitted of manslaughter, criminally negligent

homicide, and assault by a jury. See Serena Lin & Tony Plohetski,

Former sheriff’s deputies found not guilty of all charges in death

of Javier Ambler, Austin A m.-Statesman, Mar. 7, 2024, available at

https://tinyurl.com/94aprsxj.

14. ”Clearly established federal law does not prohibit a

reasonable officer who arrives late to an ongoing police action in

circumstances like this from assuming that proper procedures, such

as officer identification, have already been followed.” White v. Pauly,

580 U.S. 73, 80, 137 S. Ct. 548, 196 L. Ed. 2d 463 (2017). Cf., e.g.,

Otkins v. Gilboy, 2023 U.S. App. LEXIS 26548, 2023 WL 6518119

at *3-4 (5th Cir. Oct. 5, 2023) (per curiam) (unpublished) (affirming

QI for late-arriving officers with limited information while vacating

as to first responder).

43a

Appendix A

Because Officer Nissen acted as would any reasonable

officer in this tricky, high-stakes, split-second situation, I

respectfully dissent.

44a

APPENDIX BAppendix

— JUDGMENT

OF THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, FILED SEPTEMBER 10, 2024

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-50696

JAVIER AMBLER, SR., INDIVIDUALLY,

ON BEHALF OF ALL WRONGFUL DEATH

BENEFICIARIES OF JAVIER AMBLER, II, ON

BEHALF OF THE ESTATE OF JAVIER AMBLER,

II, AND AS NEXT FRIENDS OF J.R.A., A MINOR

CHILD; MARITZA AMBLER, INDIVIDUALLY,

ON BEHALF OF ALL WRONGFUL DEATH

BENEFICIARIES OF JAVIER AMBLER, II, ON

BEHALF OF THE ESTATE OF JAVIER AMBLER,

II, AND AS NEXT FRIENDS OF J.R.A., A MINOR

CHILD; MICHELLE BEITIA, AS NEXT FRIEND

J.A.A., A MINOR CHILD; JAVIER AMBLER, II,

ESTATE OF JAVIER AMBLER, II,

Plaintiffs-Appellees,

versus

MICHAEL NISSEN,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:20-CV-1068

45a

Appendix B

Before Smith, Wiener, and Douglas, Circuit Judges.

JUDGMENT

This cause was considered on the record on appeal

and was argued by counsel.

IT IS ORDERED and ADJUDGED that the appeal is

DISMISSED for lack of jurisdiction. Nissen fails to raise

pure legal grounds and instead challenges the district

court’s factual findings. Nissen has therefore failed to

invoke this court’s limited interlocutory jurisdiction and

this appeal is accordingly DISMISSED. This case is

REMANDED for further proceedings.

IT IS FURTHER ORDERED that appellant pay to

appellees the costs on appeal to be taxed by the Clerk of

this Court.

The judgment or mandate of this court shall issue 7

days after the time to file a petition for rehearing expires,

or 7 days after entry of an order denying a timely petition

for panel rehearing, petition for rehearing en banc, or

motion for stay of mandate, whichever is later. See Fed.

R. App. P. 41(b). The court may shorten or extend the time

by order. See 5th Cir. R. 41 I.O.P.

46a

Appendix

C UNITED STATES

APPENDIX C — ORDER

OF THE

DISTRICT COURT FOR THE WESTERN DISTRICT

OF TEXAS, AUSTIN DIVISION, FILED

SEPTEMBER 21, 2023

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

1:20-CV-1068-DII

JAVIER AMBLER, SR, INDIVIDUALLY,

ON BEHALF OF ALL WRONGFUL DEATH

BENEFICIARIES OF JAVIER AMBLER, II,

ON BEHALF OF THE ESTATE OF JAVIER

AMBLER, II, AND AS NEXT FRIENDS

OF J.R.A., A MINOR CHILD, ET AL.,

Plaintiffs,

MICHAEL NISSEN AND CITY OF AUSTIN,

Defendants.

ORDER

Before the Court is the report and recommendation

from United States Magistrate Judge Susan Hightower

concerning Defendants City of Austin’s and Michael

Nissen’s (collectively, “Defendants”) Motions for Summary

Judgment, (Dkts. 165, 167). (R. & R., Dkt. 206). Pursuant

to 28 U.S.C. § 636(b) and Rule 1(d) of Appendix C of

the Local Rules of the United States District Court

47a

Appendix C

for the Western District of Texas, Judge Hightower

issued her report and recommendation on July 31, 2023.

(Id.). Both Defendants filed objections to the report and

recommendation. (Objs., Dkts. 210, 212).

A party may serve and file specific, written objections

to a magistrate judge’s findings and recommendations

within fourteen days after being served with a copy of the

report and recommendation and, in doing so, secure de

novo review by the district court. 28 U.S.C. § 636(b)(1)(C).

Because Defendants timely objected to the report and

recommendation, the Court reviews the report and

recommendation de novo. Having done so and for the

reasons given in the report and recommendation, the

Court overrules Defendants’ objections and adopts the

report and recommendation as its own order.

Accordingly, the Court ORDERS that the Report and

Recommendation of the United States Magistrate Judge,

(Dkt. 206), is ADOPTED.

Defendant Michael Nissen’s Motion for Summary

Judgment, (Dkt. 167), is GRANTED IN PART and

DENIED IN PART. Specifically, the motion is granted as

to Plaintiffs’ deliberate indifference to a serious medical

need claim but denied in all other respects.

Defendant City of Austin’s Motion for Summary

Judgment, (Dkt. 165), is GRANTED IN PART and

DENIED IN PART. Specifically, the motion is granted

as to Plaintiffs’ claims that the City is liable for Nissen’s

Fourth Amendment violation based on its policy of

48a

Appendix C

condoning excessive force and failing to train its officers

but denied as to Plaintiffs’ claims for failure to enforce

its intervention policy and violation of the Americans with

Disabilities Act.

SIGNED on September 21, 2023.

/s/ Robert Pitman

ROBERT PITMAN

UNITED STATES DISTRICT JUDGE

49a

D REPORT AND

APPENDIX D — Appendix

ORDER AND

RECOMMENDATION OF THE UNITED STATES

MAGISTRATE JUDGE, UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF TEXAS,

AUSTIN DIVISION, FILED JULY 31, 2023

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

Case No. 1:20-cv-1068-DII-SH

JAVIER AMBLER, SR. AND MARITZA AMBLER,

INDIVIDUALLY, ON BEHALF OF ALL

WRONGFUL DEATH BENEFICIARIES OF JAVIER

AMBLER, II, ON BEHALF OF THE ESTATE OF

JAVIER AMBLER, II, AND AS NEXT FRIENDS OF

J.R.A. A MINOR CHILD; AND MICHELLE BEITIA,

AS NEXT FRIEND OF J.A.A. A MINOR CHILD,

Plaintiffs,

MICHAEL NISSEN and CITY OF AUSTIN,

Defendants.

ORDER AND REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE DISTRICT COURT

Before the Court are Defendant City of Austin’s

Motion for Summary Judgment (Dkt. 165) and Defendant

Michael Nissen’s Motion for Summary Judgment (Dkt.

50a

Appendix D

167), both filed February 28, 2023, and the associated

response, reply, and sur-reply briefs. The District

Court referred all pending and future nondispositive

and dispositive motions in this case to this Magistrate

Judge for resolution or Report and Recommendation,

respectively, pursuant to 28 U.S.C. § 636(b)(1), Fed. R.

Civ. P. 72, and Rule 1 of Appendix C to the Local Rules of

the United States District Court for the Western District

of Texas. Dkt. 144.

The family of decedent Javier Ambler II brings this

suit on behalf of Ambler and his heirs (“Plaintiffs”) against

Austin Police Officer Michael Nissen and the City of

Austin under the Civil Rights Act, 42 U.S.C. § 1983, and

Title II of the Americans with Disabilities Act (“ADA”).

I. Background

Shortly before 1:30 a.m. on March 28, 2019, Williamson

County Sherriff’s Deputy James Johnson initiated a traffic

stop of Ambler’s car for failing to dim the lights. Dkt. 185-2

at 3. Ambler, a 40-year-old Black man, did not pull over,

and Johnson began pursuing him. Dkts. 174-8 at 6, 185-2 at

3. Williamson County Sherriff’s Deputy Zachary Camden

joined the chase, which lasted more than 20 minutes along

an interstate highway and residential streets, at speeds

exceeding 100 miles per hour. Dkt. 167-1 at 48. The chase

ended when Ambler crashed into roadside trees within

the Austin city limits. Dkt. 167-11.

Video evidence shows that Johnson approached

Ambler’s car with what appears to be his gun drawn. Id.at

22:35-40. As Ambler opens the door to get out of his car,

51a

Appendix D

Johnson orders him to “get on the ground.” Id. Johnson

appears to holster his gun and draw his Taser, which he

discharges at Ambler. Id. at 22:40-50. Ambler falls to the

ground, and Johnson and Camden try to handcuff him

as Austin Police Officer Michael Nissen arrives. Id. at

22:50-23:11.

Video from Nissen’s body-worn camera shows him

approach Ambler’s vehicle with his gun drawn. Dkt. 16712 at 4:10-20. Nissen calls out to the Williamson County

deputies that the car “looks clear” and then approaches

the deputies, who are standing over Ambler. Id. at 4:20-28.

One of the deputies holds a Taser to Ambler’s neck and

says: “Give me your hand or I’m going to Tase you again.”

Id. at 4:25-30. Ambler can be heard saying softly that

he has congestive failure. Id. at 4:25-33. An officer then

yells: “Other hand. Give me your hand.” Id. at 4:33-40. As

an officer instructs Ambler to lie “flat on your stomach,”

Ambler can be heard saying “I can’t breathe” twice. Id.

at 4:40-49. The officers repeatedly tell Ambler to stop

resisting, to which Ambler responds: “I am not resisting.”

Id. at 4:50-5:00.

Nissen applies force to Ambler’s arms and the back

of his head, pushing his head onto the pavement. Id. at

5:00-6:10. The parties dispute how much pressure he used,

which cannot be determined from the video. During that

time, one of the Williamson County Deputies says: “I think

I just broke his finger.” Id. at 5:30-38. An officer then

says: “I am going to put my knee on this one to control

him. Let me know when you’re ready.” Id. at 5:40-49. The

officers then handcuff Ambler, who does not appear to be

moving. Id. at 6:00-08. Less than thirty seconds later, the

52a

Appendix D

officers raise Ambler to a seated position and check for

a pulse, which they cannot find. Id. at 6:31-8:20. Ambler

was taken to a hospital where he was pronounced dead,

and the medical examiner’s report states that his manner

of death was homicide. Dkt. 174-8 at 3-4.

Plaintiffs sued Williamson County, former Williamson

County Sheriff Robert Chody, former Williamson County

Sheriff’s Deputies Johnson and Camden, Williamson

County General Counsel Jason Nassour, Nissen, and the

City. Dkt 1. The District Court granted Plaintiffs’ motion

to dismiss Williamson County, Johnson, Camden, and

Nassour. Dkt. 107.

In their First Amended Complaint, Plaintiffs allege

that Nissen was deliberately indifferent to Ambler’s

serious medical needs and violated his Fourth Amendment

rights by using excessive force against him and failing

to intervene. Dkt. 44. Plaintiffs also allege that the City

failed to provide Ambler reasonable accommodations, in

violation of Title II of the ADA, and is liable for Nissen’s

Fourth Amendment violation under Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 98 S. Ct. 2018,

56 L. Ed. 2d 611 (1978). Defendants move for summary

judgment under Rule 56.

II. Legal Standards

Summary judgment will be rendered when the

pleadings, the discovery and disclosure materials, and any

affidavits on file show that there is no genuine dispute as to

any material fact and that the moving party is entitled to

53a

Appendix D

judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex

Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S. Ct. 2548, 91 L.

Ed. 2d 265 (1986); Washburn v. Harvey, 504 F.3d 505, 508

(5th Cir. 2007). A dispute over a material fact is “genuine”

if the evidence is such that a reasonable jury could return

a verdict for the nonmoving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed.

2d 202 (1986). When ruling on a motion for summary

judgment, the court is required to view all inferences

drawn from the record in the light most favorable to the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d

538 (1986); Washburn, 504 F.3d at 508. A court “may not

make credibility determinations or weigh the evidence”

in ruling on a motion for summary judgment. Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120

S. Ct. 2097, 147 L. Ed. 2d 105 (2000); see also Anderson,

477 U.S. at 254-55.

Once the moving party has made an initial showing

that no evidence supports the nonmoving party’s case,

the party opposing the motion must come forward with

competent summary judgment evidence of the existence

of a genuine fact issue. Matsushita, 475 U.S. at 586.

Mere conclusory allegations are not competent summary

judgment evidence and thus cannot defeat a motion for

summary judgment. Turner v. Baylor Richardson Med.

Ctr., 476 F.3d 337, 343 (5th Cir. 2007). Unsubstantiated

assertions, improbable inferences, and unsupported

speculation also are not competent summary judgment

evidence. Id. The party opposing summary judgment must

identify specific evidence in the record and articulate the

54a

Appendix D

precise manner in which that evidence supports its claim.

Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156,

164 (5th Cir. 2006). If the nonmoving party fails to make a

showing sufficient to establish the existence of an element

essential to its case and on which it will bear the burden

of proof at trial, summary judgment must be granted.

Celotex, 477 U.S. at 322-23.

The qualified immunity defense changes the usual

summary judgment burden of proof. Baker v. Coburn, 68

F.4th 240, 244 (5th Cir. 2023). “Once an official pleads the

[qualified immunity] defense, the burden then shifts to

the plaintiff, who must rebut the defense by establishing

a genuine fact issue as to whether the official’s allegedly

wrongful conduct violated clearly established law.” Id.

(citation omitted). Courts also assign greater weight

to the video recordings taken at the scene. Id. (quoting

Betts v. Brennan, 22 F.4th 577, 582 (5th Cir. 2022)). But

a court “should not discount the nonmoving party’s story

unless the video evidence provides so much clarity that a

reasonable jury could not believe his account.” Id. at 250

n.9 (quoting Darden v. City of Fort Worth, 880 F.3d 722,

727 (5th Cir. 2018)).

III. Nissen’s Motion for Summary Judgment

Nissen moves for summary judgment on Plaintiffs’

claims for excessive force, failure to intervene, and

deliberate indifference to a serious medical need.

Plaintiffs do not respond to Nissen’s arguments on their

claim for deliberate indifference to a serious medical need.

When a party fails to pursue a claim or defense beyond its

55a

Appendix D

initial pleading, the claim is deemed abandoned or waived.

Arias v. Wells Fargo Bank, N.A., 2019 U.S. Dist. LEXIS

110317, 2019 WL 2770160, at *2 (N.D. Tex. July 2, 2019)

(“When a plaintiff fails to defend a claim in response to

a motion to dismiss or summary judgment motion, the

claim is deemed abandoned.”); see also Black v. North

Panola Sch. Dist., 461 F.3d 584, 588 n.1 (5th Cir. 2006)

(holding that plaintiff abandoned claim when she failed

to defend it in response to motion to dismiss). The Court

recommends that Plaintiffs’ deliberate indifference claim

should be dismissed.

Nissen argues that Plaintiffs did not plead a claim for

failure to intervene in their First Amended Complaint and

therefore cannot raise the claim on summary judgment.

The Court rejects this argument because the First

Amended Complaint provides notice of the claim. Dkt. 44

¶ 324 (stating that Nissen is liable as a bystander).

A. Video Evidence

The police chase was recorded by the dashboard

camera on Johnson’s vehicle, but the recording does not

include Johnson’s attempted traffic stop. Dkt. 167-11.

Ambler’s arrest also was recorded by two cameras. The

dashboard camera on Johnson’s vehicle captured the

entire interaction but, because of the distance and angle of

the camera, most of the events are difficult to see. Id. The

video from Nissen’s body-worn camera captures the arrest

after Nissen arrives at the scene. Dkt. 167-12. While this

recording has clearer audio and video than the dashboard

camera, the view from the camera is limited. Id.

56a

Appendix D

B. Qualified Immunity

Qualified immunity extends to government officials

performing discretionary functions “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,

102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). An official who

violates a federal right is entitled to qualified immunity

if his or her actions were objectively reasonable. Spann

v. Rainey, 987 F.2d 1110, 1114 (5th Cir. 1993).

To determine whether a government official is entitled

to qualified immunity, a court must decide both (1) whether

a plaintiff has alleged facts sufficient to establish a

constitutional violation and (2) whether the right at issue

was clearly established at the time of defendant’s alleged

misconduct. Pearson v. Callahan, 555 U.S. 223, 231, 129 S.

Ct. 808, 172 L. Ed. 2d 565 (2009). A court has discretion to

determine the order in which it considers those questions.

Id. at 236. The Court first considers whether Plaintiffs

have adequately alleged a constitutional violation.

C. Nissen’s Use of Force

Nissen argues that he is entitled to qualified immunity

because the force he used was reasonable under the factors

set forth in Graham v. Connor, 490 U.S. 386, 109 S. Ct.

1865, 104 L. Ed. 2d 443 (1989), and Plaintiffs have not

identified clearly established law placing his use of force

beyond debate. Plaintiffs respond that all the Graham

factors weigh against the reasonableness of the force and

that Fifth Circuit precedent clearly establishes that use of

force against a person who is not resisting is unreasonable.

57a

Appendix D

To prevail on an excessive force claim, a plaintiff

must show (1) injury (2) which resulted directly and only

from a use of force that was clearly excessive and (3) the

excessiveness of which was clearly unreasonable. Hanks

v. Rogers, 853 F.3d 738, 744 (5th Cir. 2017). There is no

question that Ambler, who died in the arrest, was injured.

The Court thus turns to whether Nissen’s use of force was

“clearly excessive” or “clearly unreasonable,” inquiries

that are “often intertwined.” Poole v. City of Shreveport,

691 F.3d 624, 628 (5th Cir. 2012).

Excessive force claims are fact-intensive. Deville

v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009). The

reasonableness of an officer’s conduct is judged objectively,

without reference to the officer’s intent or motivation.

Graham, 490 U.S. at 397. Courts must look at the facts

and circumstances “from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of

hindsight.” Id. at 396. Courts also must account for the

difficult and split-second decisions that police officers

must make in carrying out their duties. Id. at 396-97.

The determination of “the reasonableness of an officer’s

conduct under the Fourth Amendment is often a question

that requires the input of a jury.” Lytle v. Bexar Cnty.,

Tex., 560 F.3d 404, 411 (5th Cir. 2009).

Graham Factors

The right to make an arrest or investigatory stop

“necessarily carries with it the right to use some degree

of physical coercion or threat thereof to effect it.” Graham,

490 U.S. at 396. Determining whether force is “excessive”

or “unreasonable” requires considering the totality of the

circumstances, including the severity of the crime at issue,

58a

Appendix D

whether the suspect poses an immediate threat to the

safety of the officers or others, and whether the suspect

is actively resisting arrest or trying to evade arrest by

flight. Id.

Nissen argues that the force he used on Ambler was

“minimal” or “soft-hand force.” Dkt. 192-1 at 3. Plaintiffs

respond that Nissen was “pushing Ambler’s head and

neck down, pulling on Ambler’s left arm, placing his left

knee on Ambler’s shoulder sufficient to cause hemorrhage,

and further impairing Ambler’s breathing.” 185-1 at 20.

Although the amount of pressure applied is unclear in the

videos, Plaintiffs offer evidence that the medical examiner

found bruising on Ambler’s head and upper extremities,

as well as “hemorrhages of the neck muscles and a muscle

in the upper right side of the back.” Dkt. 174-8.

Severity of the Crime

The first Graham factor is the severity of the crime

at issue. Plaintiffs argue that the severity of the crime

weighs against the reasonableness of the force because

the original traffic stop was for Ambler’s failure to dim

his headlights, a violation of the Transportation Code.

Plaintiffs also present evidence that Austin Police

Department (“APD”) officers were instructed not to

pursue Ambler because it was against APD policy to

engage in a pursuit for this type of offense. Dkt. 185-2 at 3.

The video shows that Ambler evaded police for 22

minutes, driving at high rates of speed on both a highway

and residential streets. Dkt. 183-5; see also Dkt. 167-13

59a

Appendix D

(APD investigative summary stating that Ambler’s vehicle

exceeded 100 miles per hour during the chase). Nissen also

submits evidence that Ambler had three minor accidents

during the chase, hitting a barrier wall and then a road

sign before his car crashed into trees on the side of a road,

ending the chase. Dkts. 167-9, 167-13.

Evading arrest in a motor vehicle is a felony under

Texas law, Tex. Penal Code § 38.04, and “leading law

enforcement in a high-speed chase through a heavily

populated area is a serious crime that puts at risk not

only the lives of Plaintiff and the officers but also those

of the general public.” Salazar v. Molina, 37 F.4th 278,

281-82 (5th Cir. 2022). It is undisputed that Nissen knew

about the chase when he arrived at the scene. Nissen Tr.

at 73:18-74:3, Dkt. 183-2 at 15. The Court finds that this

factor weighs in favor of the reasonableness of the force

he used.

Immediate Safety Threat

The second Graham factor is whether Ambler

posed an immediate threat to the safety of the officers

or others. Plaintiffs contend that any threat dissipated

when Ambler “exited his vehicle, raised his hands in the

air, and surrendered to the deputies’ authority.” Dkt.

185-1 at 13.Nissen relies on Salazar, 37 F.4th at 282,

for the proposition that “when a suspect has put officers

and bystanders in harm’s way to try to evade capture, it

is reasonable for officers to question whether the nowcornered suspect’s purported surrender is a ploy.” In

Salazar, the plaintiff “led police on a high-speed chase

60a

Appendix D

through a residential neighborhood” before exiting his

vehicle and lying on the ground. Id. When the officer

reached the plaintiff, he deployed his Taser twice and then

arrested the plaintiff without further incident. Id. There

was no genuine issue of material fact that the plaintiff

posed an immediate threat when the force was used. Id.

at 282.

An officer must use a “justifiable level of force in light

of the continuing threat of harm that a reasonable officer

could perceive.” Id. at 283; see also Lytle, 560 F.3d at 413

(“[A]n 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.”). Construing the evidence

in Plaintiffs’ favor, Nissen knew, before arriving at the

scene, that the attempted stop was for a traffic violation

and Ambler had no prior criminal history. Dkts. 183-17,

185-2. When Nissen arrived, he scanned Ambler’s vehicle

for “obvious threats” and did not observe any people or

weapons. Nissen Tr. at 226:19-227:16, Dkt. 183-2 at 58.

Although Nissen testified that there were “unknowns”

because neither Ambler nor the vehicle had been fully

searched, there is no suggestion he believed that Ambler

had a weapon or was violent.1 Id. at 136:16-138:4, 222:1522, Dkt. 167-15 at 35-36, 57. When Nissen approached

Ambler, Ambler was lying on his stomach with two officers

standing over him and a Taser pressed into the back of

his neck. Dkt. 167-12 at 4:25-30. Nissen testified that he

1. That a suspect has not been searched, in the absence of

other evidence that the suspect might be armed, cannot by itself

characterize a suspect as an immediate threat. Cooper v. Brown,

844 F.3d 517, 523 n.2 (5th Cir. 2016).

61a

Appendix D

believed a Taser had been used on Ambler once before he

arrived, and he heard an officer activate his Taser during

the attempt to take Ambler into custody. Dkt. 183-2 at

93:1-25. Nissen also testified that he heard Ambler say

he could not breathe. Other officers arrived at the scene

while Nissen tried to handcuff Ambler, but Nissen testified

that he did not notice them. Id. at 204:1-14.

Nissen argues that, after a “dangerous chase,” a

suspect does not regain their “full” Fourth Amendment

protection until they are in handcuffs. Dkt. 192-1 at 10. He

offers no support for a bright-line rule requiring that an

individual be handcuffed. To the contrary, a suspect can be

“subdued,” requiring a reduction in use of force, without

being in handcuffs if he lacks “any means of evading

custody—for example, by being pinned to the ground by

multiple police officers.” Austin v. City of Pasadena, Tex.,

74 F.4th 312, No. 22-20341, 2023 WL 4569562, at *7 (5th

Cir. 2023) (citing Joseph ex rel. Est. of Joseph v. Bartlett,

981 F.3d 319, 335 (5th Cir. 2020)).

The Court finds that Plaintiffs have raised a genuine

issue of material fact as to whether a reasonable officer

would believe that Ambler, who was surrounded by

multiple officers with a Taser to his neck, was subdued and

posed no immediate threat to safety when Nissen began

helping handcuff him. Compare Cooper v. Brown, 844

F.3d 517, 523 (5th Cir. 2016) (holding that no reasonable

officer would believe that suspect, who was suspected of

committing serious but nonviolent offense and fled his

vehicle on foot, was an immediate threat while lying on

his stomach with his hands visible) with Salazar, 37 F.4th

62a

Appendix D

at 280 (holding that suspect posed threat seconds after

exiting his vehicle because he was “unrestrained at night

in the open”).

Resisting or Evading Arrest

The final Graham factor is whether the suspect is

actively resisting arrest or trying to evade arrest by flight.

The Court finds that there is a genuine issue of material

fact as to whether Ambler was actively resisting arrest

when Nissen used force. In Darden, 880 F.3d at 730, the

Fifth Circuit found that a jury could conclude that the

plaintiff was not resisting arrest even though he “pushed

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

and he seemed to pull his arm away from the officers

when they were trying to handcuff him.” These “events

occurred while other people in the house were loudly

and repeatedly yelling that Darden had asthma and was

trying to breathe.” Id. In that case, the officers argued, as

Nissen testified in his deposition, that they had no way of

knowing whether these statements were true. Id.; Nissen

Tr. at 113:3-10, Dkt. 167-15 at 30. The court determined

that whether reasonable officers in that situation would

have “credited the warnings” is a fact question that must

be decided by a jury. Id.

Nissen testified that he was unaware whether Ambler

had been compliant before he arrived but after he arrived

it was “clear” that Ambler was not complying with

commands, instead “physically resisting [Nissen’s] efforts

to place his hands behind his back.” Nissen Tr. at 132:20133:1-17, 235:1-11, Dkt. 167-15 at 34-35, 60. Plaintiffs

63a

Appendix D

contend that Ambler was not resisting but “instinctively

putting one arm on the ground to try to breathe.” Dkt.

185-1 at 13.

As in Darden, the videos “do not provide the clarity

necessary to resolve the factual dispute presented by the

parties’ conflicting accounts.” Id., 880 F.3d at 730; see

also Scott v. White, No. 1:16-CV-1287-RP, 2019 U.S. Dist.

LEXIS 2324, 2019 WL 122055, at *12 (W.D. Tex. Jan.

7, 2019) (holding that third factor weighed in plaintiff’s

favor because video did not “blatantly contradict”

plaintiff’s position that his movements “were protective

or involuntary responses to [the officer’s] uses of force”).

Viewing the evidence in the light most favorable to

Plaintiffs, the Court finds that there are genuine issues of

material fact as to whether Ambler posed a threat at the

time the force was used or was actively resisting arrest.

Deadly Force

The Court next considers whether a reasonable

jury could find that Nissen used deadly force. Plaintiffs

argue that a reasonable jury could find that Nissen knew

forcing Ambler’s face into the pavement and the deputies’

simultaneous use of force was deadly because of Ambler’s

visible morbid obesity, congestive heart failure, and

pleas for help. Nissen responds that the video shows the

Williamson County deputies were using “intermediate

force,” Nissen was using “minimal” or “soft-hand” force,

and Ambler died because he “was the quintessential

‘eggshell’ suspect.” Dkt. 192-1 at 3.

64a

Appendix D

Claims that law enforcement used deadly force are

“treated as a special subset of excessive force claims.”

Aguirre v. City of San Antonio, 995 F.3d 395, 412 (5th Cir.

2021). When an officer uses deadly force, the “objective

reasonableness” balancing test is constrained. Flores v.

City of Palacios, 381 F.3d 391, 399 (5th Cir. 2004). It is

objectively unreasonable to use deadly force “unless it is

necessary to prevent [a suspect’s] escape and the officer

has probable cause to believe that the suspect poses a

significant threat of death or serious physical injury to the

officer or others.” Tennessee v. Garner, 471 U.S. 1, 3, 105

S. Ct. 1694, 85 L. Ed. 2d 1 (1985). The deadly force inquiry

is two-pronged: Whether the force used constituted deadly

force, and whether the subject posed a threat of serious

harm justifying the use of deadly force. Timpa v. Dillard,

20 F.4th 1020, 1032 (5th Cir. 2021), cert. denied, 142 S. Ct.

2755, 213 L. Ed. 2d 999 (2022).

Whether a use of force is “deadly force” is a question

of fact. Flores, 381 F.3d at 399. Deadly force is force that

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

serious bodily harm.” Gutierrez v. City of San Antonio,

139 F.3d 441, 446 (5th Cir. 1998). A reasonable jury can find

that the restraint used by an officer amounted to deadly

force. See, e.g., Timpa, 20 F.4th at 1033 (holding that

reasonable jury could find “use of a prone restraint with

bodyweight force on an individual with three apparent

risk factors—obesity, physical exhaustion, and excited

delirium” could constitute deadly force); Aguirre, 995

F.3d at 413-14 (same where maximal-restraint position

was used on drug-affected individual); Gutierrez, 139

F.3d. at 446 (same where “hog-tying” was used on drug-

65a

Appendix D

affected individual). In Aguirre, 995 F.3d at 413-14, the

plaintiffs offered sufficient evidence through expert

testimony that the combination of a maximal restraint

position, pressure on the back of the neck, and drug use

restricted blood oxygen and ultimately resulted in fatal

cardiac arrhythmia.

The medical examiner who performed Ambler’s

autopsy determined that his death was a homicide and

found that his cause of death was “congestive heart failure

and cardiovascular disease associated with morbid obesity

in combination with forcible restraint.” Dkt. 183-6 at 3.

Plaintiffs’ medical expert, Dr. Aran Kadar, opines that

Ambler died from “a vicious cycle of respiratory distress

from hypertensive crisis and worsening heart failure

pushed to physiological extremes by subsequent tasing

and forcible restraint.” Dkt. 183-10 (Kadar Dec.) at 3. He

explains:

• Obesity and congestive heart failure

substantially impaired Ambler’s ability

to “breathe and survive in high intensity

situations”;

• Lying flat increases the work of breathing,

especially among the obese, and can

interfere with oxygenation of the blood

even without additional pressure in obese

patients; and

• The application of pressure to Ambler’s neck

further restrained his ability to breathe and

66a

Appendix D

the pressure on his back would have stopped

his chest from expanding.

Id. at 2-3. Kadar opines that Ambler’s physiological

responses were amplified by the officers using Tasers on

him. Id. at 3. He concludes: “Had the officers stopped or

paused their restraint at any of the points in time when

Mr. Ambler was communicating his inability to breathe,”

it was “more likely than not” that Ambler would not have

died. Id. at 3-4.

Nissen knew that Ambler, who weighe

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.