Amicus Curiae Brief — Broad v. Weigel (No. 08-1128)

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cor’ APR 1 0 2009

eqgnnecte? (>) OFFICE OF THE CLERK

No. 08-1128

IN THE

Supreme Court of the Anited States

JOHN K. BROAD, individually; and DEVAN

HENDERSON, individually,

Petitioners,

Vv.

GLEN WEIGEL and DAVID WEIGEL, as Co-Personal

Representatives of the Estate of Bruce James Weigel,

Deceased,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Tenth Circuit

BRIEF OF THE STATES OF INDIANA, ALABAMA,

ALASKA, ARKANSAS, COLORADO, DELAWARE, FLORIDA,

IDAHO, IOWA, KANSAS, MARYLAND, MICHIGAN,

MONTANA, NORTH DAKOTA, SOUTH CAROLINA, SOUTH

DAKOTA, TENNESSEE, TEXAS, VERMONT,

WASHINGTON, AND WEST VIRGINIA

AS AMICT CURIAEIN SUPPORT OF THE PETITION

Office of the Indiana GREGORY F.. ZOELLER

Attorney General Attorney General

IGC South, Fifth Floor THOMAS M. FISHER*

302 W. Washington Street Solicitor General

Indianapolis, IN 46204 HEATHER L. HAGAN

(317) 232-6255 ASHLEY E. TATMAN

Deputy Attorneys General

*Counsel of Record Counsel for Amici States

(Additional counse! listed inside cover)

ADDITIONAL COUNSEL

TROY KING

Attorney General

State of Alabama

WAYNE ANTHONY ROSS

Attorney General

State of Alaska

DUSTIN MCDANIEL

Attorney General

State of Arkansas

JOHN W. SUTHERS

Attorney General

State of Colorado

RICHARD S. GEBELEIN

Chief Deputy

Attorney General

State of Delaware

BILL MCCOLLUM

Attorney General

State of Florida

LAWRENCE G. WASDEN

Attorney General

State of Idaho

THOMAS J. MILLER

Attorney General

State of Iowa

STEVE SIX

Attorney General

State of Kansas

DOUGLAS F. GANSLER

Attorney General

State of Maryland

MICHAEL A. Cox

Attorney General

State of Michigan

STEVE BULLOCK

Attorney General

State of Montana

WAYNE STENEHJAM

Attorney General

State of North Dakota

HENRY MCMASTER

Attorney General

State of South Carolina

LAWRENCE E. LONG

Attorney General

State of South Dakota

ROBERT E. COOPER, JR.

Attorney General

State of Tennessee

ADDITIONAL COUNSEL (Cont’d)

GREG ABBOTT

Attorney General

State of Texas

WILLIAM H. SORRELL

Attorney General

State of Vermont

ROBERT M. MCKENNA

Attorney General

State of Washington

DARRELL V. MCGRAW, JR.

Attorney General

State of West Virginia

1

QUESTIONS PRESENTED

1. Whether, under Hope v. Pelzer, it is proper

for a court, in a qualified immunity analysis, to

elevate and equate police training to the status of

clearly established law.

2. Whether the Court of Appeals applied the

proper standard in determining that the Troopers’

conduct was objectively unreasonable in hght of

this Court’s recent decision in Scott v. Harris.

FT

TABLE OF CONTENTS

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TARE GP FART EI BIO cess snnsnrcccesesessciensensessaoms iv

INTEREST OF AMICI STATES ...........2.-.cscoscssnseess 1

REASONS FOR GRANTING THE

UI os isa en Lak <bauisbanesincnse ciao 3

I. The Circuits Are Divided Over The

Reasonableness Of Subduing Violent

Aggressors Using Force That Can, In

Some Cases, Precipitate Asphyxia ............... 3

A. The decision below conflicts with

positional asphyxia cases from the

Third, Fifth, Seventh, and

I IE ooo ates si cialeclancedcanses 4

B. Lower courts treat common factors

differently, and not even the most

predictive factual circumstance

can explain the result below.................. 13

II. Review is Justified Because The

Decision Below Will Deter Police

From Implementing Progressive

Force Training Methods....................c0e00eee 16

A. Clearly established rights must

come from specific prior holdings

or universal values, not police

CP RURVITIE TUT OT IBID occ vssscscccnecacescscesecvsnes: 17

1)1

B. Linking Fourth Amendment

reasonableness with police

training provides disincentives for

police agencies to train their

officers in the use of progressive

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1V

TABLE OF AUTHORITIES

CASES

Abdullahi v. City of Madison,

423 F.3d 763 (7th Cir. 2008)................. 11, 12, 19

Bornstad v. Honey Brook Township,

211 F. Appx 118 (Sa Cir. 2007)..........00cc0c000.. 9,10

Brosseau v. Haugen,

ee eu cannepvaveannevesuamouh’ 4

Brower v. County of Inyo,

ee ns supa dotdesenacasens 24

Castillo v. City of Round Fock,

877 FBG O77 COE Cir. FOGS)......02.0...0cccceccocesesseses 9

City of Canton v. Harris,

a Oe is icinincsneisscccnsidecconcasvecnesss 20, 21

City of Indianapolis v. Edmond,

ee on, sucauunaienauasanks suieunsiguees 24

Cottrell v. Caldwell,

85 F.3d 1480 (11th Cir. 1996).........ccccccccceseeeeeeees 7

Cruz v. City of Laramie,

239 F.3d 1183 (10th Cir. 2001).............. sieves OA

Drummond ex rel. Drummond v. City of

Anaheim,

343 F.3d 1052 (Sth Cir. 2003)...........0sccsssesseorers 19

CASES (CONT'D)

Estate of Phillips v. City of Milwaukee,

123 F.3d 586 (7th Cir. 1997) ............ Sepreaes 10, 11

Galvan v. City of San Antonio,

No. SA-07-CA-371-OG, 2008 WL 5352945

ah Ue Be ) n 19

Garrett v. Athens-Clarke County,

378 F.3d 1274 (11th Cir. 2004)....cccccccccccccseeeeseee. 7

Giannetti v. City of Stillwater,

ZIG F. App x 766 (10th Cir. 2007) ...........cns0s008 19

Graham v. Connor,

BE Te, Be Cnc vccvcccccccusncccéacescccsosceses 4,

~]

—"

iw)

Groh v. Ramirez,

Bs Ci seks sic oe cicscesnseccpavexcecs 16, 17

Gutierrez v. City of San Antonio,

a OEE sv ochncess kas indenensnveccedasevensevsacs 13

Hope v. Pelzer,

ee She Fd Ce vei ntccdesncrsescccsicenss 2, 3, 16,18

Lewis v. City of West Palm Beach,

No. 08-12348, 2009 WL 606546

CE Re Ce is Big MEE acco casesecsssscecccsccenss 5, 6, 7

Pearson v. Callahan,

RR ee, CD CID 6c ks.n dna cacdcnvccusocece 2

Richman v. Sheahan,

BED Fie BP CTE CAP, BOOB novo nce ccssccccccsvnsvasecs 12

0 |

CASES (CONT'D)

Sallenger v. Oakes,

yee A bees iyi WG RD: ly 5 renee 12

Scott v. Harris,

RS yy 2b 6? | a ae 2, 4, 24

Tanberg v. Sholtis,

401 F.3d 1151 (10th Cir. 20085)........................ 19

Tennessee v. Garner,

yi Sil Soe... | ns PRE A RA te 4

Virginia v. Moore,

__U.S. __, 128 S.Ct. 1598 (2008) ........ccccccccoccee 17

Wagner v. Bay City,

227 F.3d 316 (5th Cir. 2000)

Whren v. United States,

a Fhe Se 0 ns aces kc ceecicuncsatensenetunieeiens eae 17

RULES

Supreme Court Rule 37.2(a)

OTHER AUTHORITIES

Cincinnati Police Dep’t, Use of Force

(April 2007) 22

Denver Police Dep’t, Operations Manual:

105.00 — Use of Force 105-1 (March 2006)....... 22

V))

OTHER AUTHORITIES (CONT'D)

El Paso County Sheriff's Office

, Policy

and Procedure Manual (July 2006)............ 22

At het

Florida Dep’t of Law Enforcement,

Defensive Tactics Curriculum: Legal and

Medical Risk Summary (June 2002)

Hawau Police Dep't, Gen. Order No. 602:

Motor Vehicle Pursuit (May 1991)

Illinois Law Enforcement Training and

Standards Bd., Evaluation of Guidelines

for Use of Force Training (J

une 2007)

Indiana State Police, Standard Operating

Procedure: Pursuit/Emergency Driving

and Roadblocks (July 2001)

Iowa City Police Dep’t, Gen. Order

No. 00-03: Less Lethal Imp:

Clay 2007) ........00c00

Kansas City, Mo. Police Dep't,

act Munitions

Ad bes

Procedural

Instruction: Pursuits and Emergency

Police Vehicle Operation (March 2004)

Wisconsin Dep’t of Justice Law Enforcement

Standards Bd., Defensive and Arrest

Tactics (April 2002).............

21, Z.

INTEREST OF THE AMICI STATES!

The States of Indiana, Alabama, Alaska,

Arkansas, Colorado, Delaware, Florida, Idaho, lowa,

Kansas, Maryland, Michigan, Montana, North

Dakota, South Carolina, South Dakota, Tennessee,

Texas, Washington, Vermont and West Virginia

respectfully submit this brief as amici curiae in

support of the Petition. State and local police

officers confront on a daily basis crises involving

belligerent offenders who threaten innocent

bystanders, attack police, and even harm

themselves. In such situations, officers must, as

Troopers Broad and Henderson had to do here,

balance concerns for public and self against the

rights and well-being of the assailant. They must

weigh the likely consequences of doing nothing—

both in terms of the concrete potential for immediate

danger to persons and property and in terms of

addressing crime more abstractly—against the risks

associated with multiple available tactics for ending

the crisis. Often they must, as here, undertake these

multivariate calculations in mere seconds under

great stress and in the midst of rapidly evolving

confrontations, all the while minding numerous

simultaneous threats to all concerned.

The Fourth Amendment and qualified immunity

issues presented in this case have a critical impact

on these split-second decisions. If officers must act

based on the premise that any use of force resulting

1 Pursuant to Supreme Court Rule 37.2(a), counsel of

record for all parties have received notice of the amici

states’ intention to file this brief more than 10 days prior

to the due date of this brief.

re i nn ee ee ee ee _—_ ——

a rr ret ee ee ee |

in positional asphyxia may well be deemed post hoc

to be deadly force, that will alter how they defend

themselves and the public. To be sure, it may lead to

greater alacrity in repositioning belligerents once

they have been secured so as to reduce the risk of

asphyxia, but it may also induce officers to draw

firearms more quickly as an unequivocal means of

securing the upper hand. Many, if not all, police

agencies train officers in “progressive” uses of force,

whereby police resort to greater and greater force

(and threats of force) only as necessary to address an

escalating potential for violence in a given situation.

But if those teachings have the unintended

consequence of generating “clearly established”

rights for targets of police action—as the Tenth

Circuit decided here—police agencies will have a

disincentive to train officers to delay a clear

demonstration of control over a given situation even

in a seemingly innocuous encounter with the public.

The Court has in recent years. struck a

reasonable balance between officers’ need for leeway

in protecting themselves and the public in situations

that turn violent or dangerous, see Scott v. Harris,

550 U.S. 372 (2007), and the rights of individuals to

be free from unnecessary force, see Hope v. Pelzer,

536 U.S. 730 (2002). Even this term’s decision in

Pearson v. Callahan, _U.S. _, 129 8.Ct. 808 (2009),

improves’ the police-discretion/individual-rights

cahbration by authorizing lower courts to refrain

from finding new Fourth Amendment rights when

qualified immunity affords a more obvious resolution

of the matter. The decision below, however,

contravenes this trend and opens police to civil

hability when they act under great stress to protect

3

themselves and the public, but where their actions in

doing so unfortunately result in the death of the

person causing the disturbance.

States and their police agencies are interested

not only in the general balance courts strike in

Fourth Amendment and qualified immunity cases,

but also more particularly in the reasonableness of

police control techniques that pose a risk of

positional asphyxia in some circumstances. Given

that police control frequently must involve physical

restraint, officers need to know whether and to what

extent the seemingly routine act of securing a violent

suspect face-down on the ground may be construed

as unreasonable deadly force.

REASONS FOR GRANTING THE PETITION

I. The Circuits Are Divided Over The

Reasonableness Of Subduing Violent

Aggressors Using Force That Can, In Some

Cases, Precipitate Asphyxia

As the Petition sets forth, a conflict exists

between the Ninth and Tenth Circuits, on the one

hand, and the Sixth and Eleventh Circuits, on the

other, concerning the proper analysis for concluding

whether an _ official's conduct is “obviously”

unconstitutional under Hope v. Pelzer, 536 U.S. 730

(2002). Pet. 7-8, 13-15. There is also another circuit

fissure, however, identified by the dissent below, Pet.

App. 62a-66a, that justifies Supreme Court review:

Circuits are in disarray over whether and to what

extent police control techniques. resulting in

4

positional asphyxia violate clearly established

Fourth Amendment rights.

Even taken alone, either split would warrant this

Court’s review. Together, these divisions underscore

a paramount need for the Court to define with

greater clarity the extent to which police may resort

to forceful restraint when attempting to subdue

dangerous belligerents determined to resist at all

costs. The Court has never addressed a positional

asphyxia case, but given the unfortunate volume of

such cases and the disparate views lower courts have

of them, it needs to do so.

A. The decision below ccnflicts with positional

asphyxia cases from the Third, Fifth, Seventh,

and Eleventh Circuits

Fourth Amendment excessive force cases are

notoriously fact sensitive and resistant to easy

comparisons with other cases. See, e.g., Graham Vv.

Connor, 490 U.S. 386, 396 (1989) (stating that courts

must pay “careful attention to the facts and

circumstances of each particular case” (citing

Tennessee v. Garner, 471 U.S. 1, 8-9 (1985))). That

has not stopped the Court from taking such cases,

however. See, e.g., Pet. 10-11, Scott v. Harris, 550

U.S. 372 (2006) (No. 05-1631), 2006 WL 1733980

(outlining conflict with cases where car-chase deadly

force was gunshot rather than bumper tapping); Pet.

at 15-16, Brosseau v. Haugen, 543 U.S. 194 (2004)

(No. 03-1261), 2004 WL 432026 (claiming conflict

with other cases where police shot at dangerous

vehicles, notwithstanding other factual variations).

And here the Court can be reasonably confident that

5)

the result below would not have been reached by the

Third, Fifth, and Eleventh Circuits, and possibly not

the Seventh.

1. The Eleventh Circuit, in particular, has been

far more deferential to police in positional asphyxia

cases than the Tenth Circuit was in this case.

Indeed, shortly after Wyoming filed its Petition in

this case, the Eleventh Circuit issued an opinion

where it found no violation of a clearly established

Fourth Amendment right where an incoherent, drug-

addled man, after stumbling through a_ busy

intersection, died when police hog-tied him face

down on the side of the road. Lewis v. City of West

Palm Beach, No. 08-12348, 2009 WL 606546 (11th

Cir. Mar. 11, 2009). Hog-tying occurs when police

handcuff behind the back, then connect the wrists to

a hobble restraint (or similar device) that has been

applied to the ankles, such that the restrained

person’s body is bowed with the feet and hands in

close proximity behind the back. See Lewis, 2009

WL 606546 at *1. Among all the restraint positions

associated with custodial asphyxia, hog-tying is

among the most closely correlated. See, e.g., Cruz v.

City of Laramie, 239 F.3d 1183, 1188-89 (10th Cir.

2001).

In Lewis, the police applied the hog-tie restraint

while kneeling on Mr. Lewis’s back, 4 maneuver that

independently carries a risk of inducing positional

asphyxia, as the Tenth Circuit observed below.

Lewis, 2009 WL 606546 at *1; Pet. App. 14a. What is

more, police undertook this ultimately fatal] course of

action because Lewis had been alternately compliant

and resistant, but never aggressive. See Lewis, 2009

6

WL 606546 at *1. Notably, unlike Weigel in this

case, Lewis had never attacked police or tried to grab

their weapons. Jd.

The contrasts in the modes of analysis are telling.

In the decision below, the Tenth Circuit ruled that,

notwithstanding Weigel’s extreme aggression and

the lack of on-point cases establishing a Fourth

Amendment right in a similar scenario, any

reasonable police officer would have known the force

used against Weigel—which never included hog-

tying—was excessive. See Pet. App. 2la (stating

that “the law was clearly established that applying

pressure to Mr. Weigel’s upper back, once he was

handcuffed and his’ legs’ restrained, was

constitutionally unreasonable due to the significant

risk of positional asphyxiation associated with such

actions.”). In Lewis, by contrast, the court, finding

no case law clearly establishing a right not to be hog-

tied, observed that “[t]he application of the hobble

may not have been entirely necessary; however, the

officers’ attempts to restrain Lewis were not so

violent and harsh to be considered an egregious

violation of a constitutional right, and they are not

an obstacle to the application of qualified immunity.”

Lewis, 2009 WL 606546 at *3.

Furthermore, according to the Tenth Circuit,

Weigel’s extended display of “superhuman” strength

against State Troopers and bystanders along a busy

interstate, multiple attempts to grab Trooper

Broad’s weapon, and repeated attempts to run into

high-speed traffic, did not justify Broad’s sitting on

Weigel’s back for at most three minutes in order to

restrain Weigel. See Pet. App. 19a (stating that a

7

“reasonable officer would know these actions present

a substantial and totally unnecessary risk of death

to the person.”). But in Lewis, the Eleventh Circuit

held that hog-tying was justified because the

incoherent Mr. Lewis refused “to sit upright and...

remain calm,” such that he “remained a safety risk

to himself and to others.” Lewis, 2009 WL 606546 at

*3. According to the Eleventh Circuit, “this was

precisely the type of situation where the decisions of

the officers confronted with ‘circumstances that are

tense, uncertain, and rapidly evolving’ should not be

second-guessed.” Jd. (quoting Graham, 490 U.S. at

397). In contrast, the Tenth Circuit recognized that

“events leading up to Mr. Weigel’s death happened

quickly,” but rejected the argument that this was a

“split second decision[] by law enforcement officers to

protect themselves and the public.” Pet. App. 20a-

Zia.

The bottom line is that, given the comparatively

greater degree of deference the Eleventh Circuit has

afforded police in positional asphyxia cases, there

can be little doubt that this case would have come

out differently in that court. See also Garrett v.

Athens-Clarke County, 378 F.3d 1274 (11th Cir.

2004) (finding no Fourth Amendment violation after

police pepper-sprayed, clubbed and hog-tied a

violently resisting suspect and left him prone near a

running crulser’s exhaust pipe, resulting in his

death); Cottrel] v. Caldwell, 85 F.3d 1480 (ilith Cir.

1996) (finding no excessive force as a matter of law

where a_ psychologically impaired arrestee was

placed face-down, handcuffed and leg-bound, in the

back of a police cruiser with his head in the leg well

and died from positional asphyxiation during

8

transport). The Court needs to take this case to

decide whose approach is more on target.

2. The Fifth Circuit also has followed a path in

positional asphyxia cases that forks away from the

trail blazed by the Tenth Circuit in this case. In

Wagner v. Bay City, 227 F.3d 316 (5th Cir. 2000),

the court found no excessive force where an arrestee

who had caused a disturbance at a_ fast-food

restaurant died after police pepper-sprayed him,

forced him to the ground face-down, knelt on his

back, pressed against his neck with a baton, and

finally loaded him into the back of a police car face

down, resulting in positional asphyxia. Like the

Eleventh Circuit, the Fifth Circuit was “careful not

to engage in second-guessing officers in situations in

which they have to make split-second, on-the-scene

decisions while confronted with a violent individual.”

Id. at 321. It concluded that the force used was not

“deadly,” the arrestee’s death notwithstanding,

because the usual warning signs for positional

asphyxia (such as cocaine-induced psychosis or drug

use) were not apparent and “the officers’ actions

were all consistent with the idea that they merely

were trying to restrain a violent individual.” Jd. at

324.

The analysis and result in Wagner simply cannot

be squared with the decision below. The Tenth

Circuit questions the force and duration of police

tactics moment-by-moment without appreciating the

viewpoint of the police officers at the scene, and

essentially requires officers to presume a high risk

of positional asphyxia in every case. See Pet. App.

14a (stating that “a reasonable officer would have

9

known that pressure placed on Mr. Weigel’s upper

back as he lay on his stomach created a significant

risk of asphyxiation and death.”). The Fifth Circuit,

on the other hand, affords police greater deference

and does not find deadly force where factors creating

an increased risk of positional asphyxia would not

have been apparent to police. See also Castillo v.

City of Round Rock, 177 F.3d 977 (5th Cir. 1999)

(unpublished) (finding no excessive force where

police and bystanders subdued a violent pedestrian

interfering with traffic by forcing him to the ground

face down, applying handcuffs and leg restraints,

and kneeling on his back for four to six minutes and

neck for five to ten minutes, resulting in his death).

Both approaches cannot be correct, and the Fifth

Circuit hkely would have found no liability in this

case.

3. The Third Circuit also has, albeit in an

unpublished decision, deferred to police when the

restraint of an aggressively resistant arrestee results

in positional asphyxiation. In Sornstad v. Honey

Brook Township, 211 F. App’x 118 (3d Cir. 2007), the

court upheld as objectively reasonable the actions of

police officers who, when attempting to arrest an

intoxicated, belligerent husband for domestic

violence, forced the arrestee to the ground and knelt

on his chest while awaiting backup, resulting in his

asphyxiation. Citing the admonition against 20/20

hindsight from Graham, and relying on the Fifth

Circuit’s decision in Wagner, the court sided with

police because “[t]he undisputed circumstances here

were that the officers were confronted with an

uncooperative, intoxicated, and physically imposing

10

individual suspected of domestic violence on a dark,

rainy evening.” Jd. at 124.

Critically, at the point where officers took the

arrestee down and kneeled on his chest, “[t]he

struggle had escalated to the point where such

restraints were appropriate, and Bornstad himself

was the cause of the escalation.” Jd. at 125. As

much could be said about Weigel in this case, Pet.

App. 6a (Weigel “fought vigorously [with the officers

and bystanders], attempting repeatedly to take the

troopers’ weapons and _ evade handcuffing”);

accordingly, the Third Circuit would not likely have

ruled as the Tenth Circuit did here.

4. The Seventh Circuit, too, has wielded a

substantially lighter touch in a positional asphyxia

case than did the decision below. In Estate of

Phillips v. City of Milwaukee, 123 F.3d 586, 588-90,

593-94 (7th Cir. 1997), the court found no excessive

force where police held in a prone position, knee on

back, an obese, violent hotel tenant who had been

evicted, refused to leave, struggled with police before

being hand-and-leg-cuffed, and died from positional

asphyxia. Notably, while the decision below faulted

Trooper Broad for not getting off Weigel’s back once

Weigel was sufficiently restrained for Trooper

Henderson to return to his cruiser, in PAzi//ips the

court gave the benefit of the doubt to police in a

similar situation: “Officer Riley placed just enough

weight on Mr. Phillips to keep him from rolling over

and kicking. If she had not held Mr. Phillips down. .

. Mr. Philips could have gotten up again and would

have been a danger to himself, the officers and the

hotel employees.” /d. at 593. Cf Pet. App. 35-36a

(O’Brien, J. dissenting) (“It would have been folly for

11

Broad to assume Weigel had given up the fight

simply because his struggle waned or to assume the

restraints would be sufficient to prevent or contain

another violent outburst if Weigel were rolled on his

side or permitted to sit up.”).

Furthermore, unlike the Tenth Circuit below, the

court in PaAillips was unwilling to deem police action

“deadly force” simply because it resulted in

positional asphyxiation. Phillips, 123 F.3d at 593;

Pet. App. 20a (referring to Broad and Henderson’s

actions as “deadly force”). Hence, the Tenth Circuit’s

treatment of police action is inconsistent with the

deference employed in PAzilips.

Other cases from the Seventh Circuit, however,

demonstrate less tolerance for police conduct

resulting in death in the midst of an evolving

situation. In Abdullahi v. City of Madison, 423 F.3d

763 (7th Cir. 2005), the court permitted jury scrutiny

of the exact level of force deployed by police. There,

police restrained Jamal Mohamed, a Somali

immigrant who, while having a psychotic episode

owing to Post-Traumatic Stress Disorder, ran into

traffic, attacked a good samaritan, and swung his

belt wildly at the first-responding police officer. /d.

at 764-65. When backup arrived, officers forced

Mohamed to the ground and, when he continued to

resist, restrained his arms and legs. Jd. at 765. One

officer knelt on Mohamed’s shoulder or back for 30-

45 seconds, during which time Mohamed stopped

breathing and eventually died. /d. at 765-66.

The court ruled that, even where the arrestee is

violent, “the reasonableness of kneeling on a prone

12

individual’s back during an arrest turns, at least in

part, on how much force is applied.” Jd. at 771.

More particularly, “kneeling with just enough force

to prevent an individual from ‘squirming’ or escaping

might be eminently reasonable, while dropping down

on an individual or applying one’s full weight

(particularly if one is heavy) could actually cause

death.” Jd. See also Richman v. Sheahan, 512 F.3d

876, 883 (7th Cir. 2008) (denying qualified immunity

where officers piled on a morbidly obese person who

refused to leave a courtroom); cf Sallenger v. Oakes,

473 F.3d 731, 742 (7th Cir. 2007) (“[A] reasonable

officer would have known that administering closed-

fist punches and flashlight blows, including ones to

the head, after the arrestee was handcuffed,

continuing to strike him after he had stopped

resisting arrest and failing to place him in the

proper position after hobbling him violated the

individual’s Fourth Amendment right to be free from

excessive force.”).

Underscoring the general lack of agreement

among circuit judges over these matters, Judge

Evans dissented in Abdullahi, criticizing the

majority for ignoring “the well-established rule that

a police officer’s conduct in a struggle like the one

that occurred here must be judged from the

perspective of a reasonable officer on the scene, not

the ‘20/20 vision of hindsight.” Abdullahi, 423 F.3d

at 776 (quoting Graham, 490 U.S. at 395).

* * *

As these cases show, the approach of the Tenth

Circuit in its ruling below is irreconcilable with

13

positional asphyxia cases from the Eleventh, Fifth

and Third Circuits, and is in considerable tension

with the approach of the Seventh Circuit, at least in

some circumstances. Nor is this doctrinal confusion

surprising. In Gutierrez v. City of San Antonio, 139

F.3d 441, 446 (1998), a positional asphyxia case, the

Fifth Circuit observed that, “[allthough guns

represent the paradigmatic example of ‘deadly

force,” the Court has “failed to address whether

other police tools and instruments can also be

characterized as ‘deadly force.” Accordingly, “[lJower

courts since have struggled with whether to

characterize various police tools and instruments as

‘deadly force.” Jd. at 446. Plainly, that is a call for

further guidance from the Court.

B. Lower courts treat common factors differently,

and not even the most predictive factual

circumstance can explain the result below

The cases discussed above are just a few

examples of where federal courts have analyzed

whether police action resulting in_ positional

asphyxiation is either excessive under the Fourth

Amendment or entitled to qualified immunity. They

usefully illustrate the overall confusion, uncertainty,

and conflict that characterize the body of positional

asphyxia cases.

In the chart included as Appendix A, the amici

states have collected 35 cases from both circuit and

district courts addressing positional asphyxia issues

and noted whether they contained any of several

characteristics common to such cases. First, under

the general heading of “Aggravating Circumstances,”

14

the chart records whether officers used chemical

spray, cuffed the arrestee behind his back, placed

the arrestee face down on the ground, hog-tied the

arrestee, transported the arrestee face down, heard

vocal sounds of distress from the arrestee, or used

weight to compress the chest of the arrestee.

Under that same general heading, the chart also

notes whether the arrestee exhibited to a reasonable

observer any of the following characteristics that

increase the risk of positional asphyxia (as

paraphrased from the decision below, see Pet. App.

44a): (a) obesity or protruded abdomen; (b) mental

illness, in particular, manic depression and extreme

agitation, hallucinations and paranoia; (c) drug/

alcohol intoxication; (d) excited delirium/cocaine-

induced bizarre behavior; (e) panic or violent

struggle once restrained.

Next, the chart notes, under the general heading

“Mitigating Circumstances,” whether the situation

was rapidly evolving or urgent and whether the

arrestee was resisting officers when they employed

the force that resulted in asphyxiation.

Finally, under the column headed “Possible

Violation,” the chart records the result in the case by

noting “Yes” when the court cither found excessive

force or permitted the question to go to the jury, and

“No” where it found no excessive force as a matter of

law. The chart does not record how the question of

qualified immunity was resolved in each case.

Even a cursory review of the chart suggests no

consistent patterns leading to either a “Yes” or a

” fl

15

“No,” which suggests an overall lack of consistent

treatment of these common factors. Digging deeper,

regression analysis shows that, of the fourteen

common factors charted, only one—“rapidly

evolving/urgent’—has a_ statistically significant

correlation (and an inverse one at that) to the

determination of “Possible Violation.” The graph

included as Appendix B shows that all other charted

independent variables fail to show statistical

significance at the 95% confidence level.?

These statistical observations are important for

at least two reasons. First, the lack of any positively

correlated common aggravating factors concretely

demonstrates, over a statistically significant dataset,

the lack of consistent treatment of common factual

circumstances that arise in positional asphyxiation

cases. This phenomenon in turn underscores the

‘need for the Court to take a positional asphyxiation

case in order to determine what courts should be

looking for when deciding whether police have

crossed the line.

Second, the statistically significant inverse

correlation of the “rapidly evolving/urgent” factor to

the determination of a possible violation highlights

the anomaly of the decision below. That is, in an

area of law with few common determinative factors,

2 Counsel for the amicr states are grateful for the

assistance of Thomas Bodin, Chief Economist for the

Attorney General of Indiana, who conducted this

regression analysis. Documentation of Bodin’s analysis

remains on file with the Office of the Attorney General of

Indiana.

16

the Tenth Circuit in this case found unpersuasive

the one factor—whether the situation police faced

was rapidly changing or urgent and thus required

split-second decisions—that has most commonly led

other courts to find that no excessive force was used.

This observation demonstrates fundamental

disagreement between the decision below and other

courts as to what is important in positional asphyxia

cases. The Court’s intervention is_ therefore

warranted.

Il. Review is Justified Because The Decision

Below Will Deter Police From Implementing

Progressive Force Training Methods

The Court has in recent years relied on police

agency regulations to reinforce independent legal

conclusions that a particular Fourth Amendment

right against excessive force is well-established. In

Groh v. Ramirez, 540 U.S. 551, 564 n.7 (2004), the

Court used a police agency’s internal guideline to

“underscore” that an officer was on notice of the

unlawfulness of his conduct. And in Hope v. Pelzer,

the Court relied on _ (formally promulgated

Department of Correction regulations mandating

that hitching-post punishment be _ carefully

monitored and used only in specified situations. 536

U.S. at 744 (2002).

The Court has been careful not to suggest,

however, that internal policies or regulations can

themselves be the source of “well established” rights.

In Groh, the Court expressly disclaimed any

intention to “suggest that an official is deprived of

qualified immunity whenever he violates an internal

17

guideline.” Groh, 540 U.S. at 564 n.7. The Court

went further in Virginia v. Moore, __U.S. _, 128

S.Ct. 1598, 1605 (2008), stating that “[w]Je thought it

obvious that the Fourth Amendment’s meaning did

not change with local law enforcement practices—

even practices set by rule. While those practices

‘vary from place to place and from time to time,’

Fourth Amendment protections are not ‘so variable’

and cannot ‘be made to turn upon such trivialities.”

(quoting Whren v. United States, 517 U.S. 806, 815

(1996)). The Tenth Circuit’s reliance on police

training to find a clearly established constitutional

right contravenes this doctrine and undermines

police agencies’ efforts to train officers on the

progressive use of legal force.

A. Clearly established rights must come from

specific prior holdings or universal values, not

police training materials

The decision below expressly eschewed reliance

on its prior decision in Cruz v. City of Laramie, 239

F.3d 1183 (10th Cir. 2001), a hog-tie case, as the

basis for its conclusion that Troopers Broad and

Henderson violated Weigel’s clearly established

rights. “Cruz turns out to be highly relevant to this

case,” the court explained, “but not for its legal

teaching.” Pet. App. 20a (emphasis added). It was

important instead because it “was apparently the

reason for... extensive WLEA training on positional

asphyxia... ,” id., warning that inflicting pressure

on the back of some individuals laying face down

may pose the risk of positional asphyxia. /d. at Qa.

Such training was in turn important because, the

court asserted without citation, “the reasonableness

18

of an officer’s actions must be assessed in light of the

officer's training.” Pet. App. 20a. Here, “the

defendants’ training informed them that the force

they used upon Mr. Weigel produced a substantial

risk of death.” Jd. And, “{bjecause it is clearly

established law that deadly force cannot be used

when it is unnecessary to restrain a suspect or

secure the safety of officers, the public, or the

suspect himself, the defendants’ unnecessary use of

deadly force violated clearly established law.” Jd.

Quod erat demonstrandum, according to the court.

One problem with this logic, of course, is that it

ignores the Court’s repeated admonition that clearly

established rights must be evaluated at a high level

of specificity, not a high level of generality. See, e.g.,

Hope, 536 U.S. at 740-741. It is clearly established

that “deadly force” violates Fourth Amendment

rights when unnecessary, but that’ general

proposition says little about the ex ante

reasonableness of a restraining technique that

happens to cause death in a particular circumstance.

What is more, repairing to an officer’s training to

show that special risks sometimes accompany the

technique at issue belies any suggestion of “obvious”

illegality, for which training would seem to be

unnecessary. The obvious illegality of the hitching

post in Hope owed not to empirically demonstrated

injuriousness in particular circumstances, but to the

implicit human _ degradation that always

accompanies its use as punishment. Hope, 536 U.S.

at 745. In this case, not even the two judges

comprising the majority could agree that kneeling on

an aggressor’s back to gain control is illegal in a//

circumstances—much less obviously so. See Pet.

19

App. 22a, (Hartz, J. concurring) (stating that it was

not “unreasonable of the officers to keep him in a

prone position with weight on his upper back so long

as the only restraint on his legs was the weight of a

bystander sitting on them.”)

Not surprisingly, the idea of using police training

materials to find clearly established rights has

engendered its own lower-court uncertainty and

disagreements. In Abdul/ahi, 423 F.3d at 772, the

court said that, while violations of standard police

practices were “not dispositive,” evidence of such

were relevant to the reasonableness inquiry.

Another court ruled that “the legal analysis under

the Fourth Amendment is based on the objective

reasonableness standard, and not whether an officer

follows departmental policies.” Galvan v. City of San

Antonio, No. SA-07-CA-371-OG, 2008 WL 5352945

at *11 (W.D. Tex. Dec. 19, 2008). Even a prior panel

of the Tenth Circuit held that, just because “an

arrest violated police department procedures does

not make it more or less likely that the arrest

implicates the Fourth Amendment, and evidence of

the violation is therefore irrelevant.” Giannetti v.

City of Stillwater, 216 F. App’x 756, 766 (10th Cir.

2007) (quoting Vanberg v. Sholtis, 401 F.3d 1151,

1163-64 (10th Cir. 2005)); but see Drummond ex rel.

Drummond v. City of Anaheim, 343 F.3d 1052, 1062

(9th Cir. 2003) (holding that police training

materials were “relevant not only to whether the

force employed . . . was objectively unreasonable .

but also to whether reasonable officers would have

been on notice that the force employed was

objectively unreasonable’).

20

By taking this case, the Court can head off

further lower-court conflict over the use of training

materials to establish Fourth Amendment rights,

and at the same time reinforce the proper level of

specificity of prior holdings or obviousness required

to overcome qualified immunity.

B. Linking Fourth Amendment reasonavleness

with police training provides disincentives for

police agencies to train their officers in the

use of progressive force techniques

The decision below held that “the reasonableness

of an officer’s actions must be assessed in light of the

officer’s training.” Pet. App. 20a. A rule linking

reasonableness under the Fourth Amendment to the

specifics of police training is not only without

doctrinal foundation, but ultimately undermines the

salutary effects of training modules that stress

progressive uses of force. It effectively punishes

agencies that teach officers about the risks

associated with various methods of restraint that are

presumptively legal under the Fourth Amendment.

Far from being a deterrent to unreasonable police

conduct, the Fourth Amendment would become a

deterrent to educated, informed, and tempered uses

of force.

1. The “deliberate indifference” standard of the

Fourteenth Amendment requires minimal training

for police. City of Canton v. Harris, 489 U.S. 378,

388 (1989) (holding that “the inadequacy of police

training may serve as the basis for § 1983 hability

only where the failure to train amounts to deliberate

indifference to the rights of persons with whom the

21

police come into contact.”). Police agencies routinely

go well beyond this constitutional minimum,

however, because the “inappropriate use of force by

peace officers can drive a wedge between peace

officers and the communities they serve. History has

recorded how incidents of misconduct in the

application of force can spark widespread civil

unrest.” I[llinois Law Enforcement Training and

Standards Bd., Evaluation of Guidelines for Use of

Force Training 3 (June 2007).

Police agencies across the country thoroughly

educate their officers concerning the risks associated

with various types of legal force. The training

guidelines set forth by the state of Illinois, for

example, inform officers that the most appropriate

tactics with aggressive assailants are punches, kicks

and other striking techniques, impact tools, take-

downs directed at the skeletal structure of the body,

and non-lethal weapons, but that the detainee could

suffer injuries such as lacerations, minor broken

bones, chipped teeth, connective tissue damage, and

bruising with such force. /d. at 10; see also, e.g.,

Florida Dep’t of Law Enforcement, Defensive Tactics

Curriculum: Legal and Medical Risk Summary 11

(June 2002) (detailing the lkelihood of injuries to

both officers and subjects from the use of various

police defensive techniques); Wisconsin Dep’t of

Justice Law Enforcement Standards Bd., Defensive

and Arrest Tactics 46 (April 2002) (providing

detailed instructions on how best to stabilize a

detainee prior to handcuffing and_ disclosing

attendant risks).

22

In light of such risks, many police agencies train

officers to escalate force only as necessary as a

situation progresses. See, e.g., Denver Police Dep’t,

Operations Manual: 105.00 — Use of Force 105-1

(March 2006) (“Officers should recognize that their

conduct immediately connected to the use of force

may be a factor which can influence the level of force

necessary in a given situation.”); Wisconsin Dep’t of

Justice Law Enforcement Standards Bd., Defensive

and Arrest Tactics 5 (April 2002) (reminding officers

that “[a]chieving your objective by verbal persuasion

is always preferable to having to use physical

intervention.”).

Some manuals even contain a “use of force”

continuum showing the most appropriate tactics to

use as the situation escalates. See, e.g., Cincinnati

Police Dep’t, Use of Force 8 (April 2007) (“Depending

on the circumstances, officers may find it necessary

to escalate and de-escalate the use of force by

progressing up and down the force continuum.”); El

Paso County Sheriffs Office, Policy and Procedure

Manual: Use of Force 4 (July 2006) (six-level range-

of-response continuum).

Understandably, however, many police agencies

are sensitive about how their training manuals may

be used in court, and therefore include in their

manuals disclaimers of intent to confer rights or

create evidence of a _ higher’ standard of

reasonableness. See, e.g., lowa City Police Dep't,

Gen. Order No. 00-03: Less Lethal Impact Munitions

5 (May 2007) (“The department policy should not be

construed as a creation of a higher legal standard of

safety or care in an evidentiary sense with respect to

23

third-party claims.”). If the Court does not address

the risk that such manuals may become legal

ammunition against the officers they train, police

agencies will face a substantial disincentive to train

restraint beyond what the “deliberate indifference”

standard already requires. The Court should

therefore take this case to address whether

reasonableness under the Fourth Amendment—

“clearly established” or otherwise—may properly be

derived from police training procedures and policies.

2. Finally, using law enforcement training

manuals to identify “clearly established”

constitutional rights could contravene Court

precedents as to particular uses of force. Some

agencies train officers not to ram a vehicle’s bumper

to end a dangerous pursuit. See, e.g, Hawaii Police

Dep't, Gen. Order Ne. 602: Motor Vehicle Pursuit 2

(May 1991); Indiana State Police, Standard

Operating Procedure. Pursuit/Emergency Driving

and Roadblocks 5 (July 2001); El Paso County

Sheriffs Office, Policy and Procedure Manual:

Vehicle Pursuits 2 (July 2006); Kansas City, Mo.

Police Dep’t, Procedural Instruction: Pursuits and

Emergency Police Vehicle Operation 7 (March 2004).

Some similarly forbid all roadblocks. See, e.g.,

Hawaii Police Dep’t, Gen. Order No. 602: Motor

Vehicle Pursuit 2 (May 1991); El Paso County

Sheriffs Office, Policy and Procedure Manual:

Vehicle Pursuits 2 (August 2006); Kansas City, Mo.

Police Dep’t, Procedural Instruction: Pursuits and

Emergency Police Vehicle Operation 1 (November

2006).

24

To say the least, it would be anomalous if such

training and _. policies could imply “clearly

established” constitutional rights against bumper-

ramming in light of Scott v. Harris, 550 U.S. 372

(2007) (upholding bumper-ramming as reasonable),

or against roadblocks in light of Brower v. County of

Inyo, 489 U.S. 593, 599 (1989) (implying some

roadblocks would be permissible, but invalidating

the one at issue); and City of Indianapolis v.

Edmond, 531 U.S. 32, 44 (2000) (stating that “the

Fourth Amendment would almost certainly permit

an appropriately tailored roadblock set up to thwart

an imminent terrorist attack or to catch a dangerous

criminal who is likely to flee by way of a particular

route.”).

But back-door avoidance of the Court’s

precedents upholding particular types of force may

be exactly where courts such as the Tenth Circuit

are logically headed. The Court should intercede to

address whether that is the proper course.

25

CONCLUSION

The petition for a writ of certiorari should be

granted.

Office of the Indiana

Attorney General

IGC South, Fifth Floor

302 West Washington

Street

Indianapolis, IN 46204

(317) 232-6255

*Counsel of Record

Dated: April 10, 2009

Respectfully submitted,

GREGORY F.. ZOELLER

Attorney General

THOMAS M. FISHER*

Solicitor General

HEATHER L. HAGAN

ASHLEY E. TATMAN

Deputy Attorneys General

Counsel for Amici States

APPENDIX A

Positional Asphyxia Cases

CASE CHARACTERISTICS Possible

sggrat ting Mitigating Violations

Chena | Yoel Weight | Ob, Rik | Rapidly

Distress compress | Factors | Evolving! Urgent

Creuit ours Cuffed FaceDown} Hog ie Transport Rat

Spray

Band Hoy Bk |

(Ci. 207) |

Gules Cit of Sn

Andoi, 139.4 4 th

Ci 19

Castillo», Cty of Round

Rock, 177 F.3d 977 (ith Ci,

1984)

Hager. Bas City, 27.4

51 th Cin)

Champion 0, Outlook

Nashville, ne. 380 F.3d 893

(Oth Cir 200)

dones 0, Cty of Cincinnati,

A] Fd, 355 (6th Cir, 2008

Estate of Phillips o City of

Miwa 13 P48 (th

Ci 1) |

Abdullahi 0, City of Madison,

493 F.3d 163 (7th Cir. 2005)

Sallengerv, Oakes, 473 F.3d

731 (7th Cir, 207)

Richman v. Sheahan, 512

3d 76 (ith Cir. 2008)

BEST AVAILABLE COPY

CASE CHARACTERISTICS

Aggravating

Circuit Courts | Cuffed Face Down| Hog Tie Transport

2 =e

Drummond ex rel,

Drummond v, City of

Anaheim, 343 F.3d 1052, (9th

4 Vi, 208)

Arce 0, Blackwell, 244

Fed.Appx. 259 (9th Cir. 2008)

Crus v, Cty of Laramie, 239

F.3d 1188 (10th Cir. 20)

Estate of Melntire v. City of

Boulder, 61 Fed.Appx 639

(104b Cir, 2008)

\ 1Gianneti , City of

Stillwater, 216 Fed.Appr. 7

(10th Cir. 2007)

Broad Reig 54 Pd 1

teh i 208)

Cottrell v. Caldwell, 85 F.3d

1480 (L1th Cir. 1996

Garrett 0, Athens-Clarke

Couns Gia $18.

th Ci

Lewis , Cty of West Palm

Beach, 2009 WL G06346 (11th

Cir, 209)

CASES

Vol Wei

| Distress compress

—— ania a

CASE CHARACTERISTICS | Possible

“a | leomee | cng : holations

Chemical | Vocal Weight isk | Rapidly

ir Cuffed Face Down | HogTie | Transport Denn | cpr Brag Ua Hess

CASES

District Courts

Estate of Bryant v

Buchanan, 883 F Supp

1222 (G.D.ind.1385)

Price v. County of San

Diego, $90 F Supp. 1230

(G.CaLL

Govman Marin,

qd Dis

a.

65 F Supp.2d 025

(WD Mich 198)

Johnson, City of

Cincinnati, 39 PSupp.2d

I3(SD Ohio 1

Fernandes v, Cy of Cooper

Cay A Supp 11

SD Faae)

Phas City of

28 FL,

21687543 (DNL 203)

Marsal! City of Portland,

24 WL 1048127 (. Or,

2M)

Medias New Case

(County, 34 Supp. 379

(D,DeL 265

Les Cityof Howard

SOG HL G14 (ND. Cal

m6

App. 4

CASE CHARACTERISTICS Prasible

Ageravating i Mitigating Violations

Chenid | Voral | Weight | Obs Risk | pid

a Ps

aia Spray - ‘ated Hag Te leew Distress | compress | Factors roving Urge

CASES

|

ae

ne

Prroloesi v, Stanbro, 208

WL ISTH ND Chin oe oe (| ¢ | hde} f 1 4 | te

m8 | |

Bil. Carol Cunt | | |

‘WL 20656 CLD Mis f | 4 Y ae | ( No

wi

Vera, City of Allen, 2008 | | |

WL 0064 ED, Tex ( ( (| ( ( e | 9 ( Yes

‘96 |

Gado San Ans, |

(MBL SOM AD. Ten) 4 ( / | ¢ ( wi ¢ No

‘8 |

Lee 0, Metropolitan

Government of Nashuale

and Davidson Co, 2109 WL

211061 (VLD, Tenn, 2008)

Ramos, Lucio, 08 WL

100635 (SD. Tex. 208)

Observable Risk Factors:

a. Obesity

b, Mental [iness, In Particular, Manic Depression and Extreme Agitation, Hallucinations and Paranoia

¢. Drug/Alcobol Intoxication

d. Excited Delirrum Cocaine-induced Bizarre Behavior

¢. Panic or Violent Struggle Once Restrained

App. 5

Appendix B

Variable Regression Analysis: Upper and Lower Bounds by Variable at 95% Confidence Level*

1.00 -_ TT ——-

0.80 |

0.60 Sa |

Violation |

0.40 ‘ | | |

| |

0.20) + , i ;

' | | |

—

01.00 = |

420

= |

.40 | aan | +

~~ No Violation

60

-).80

1.00 tl |

> se ¢ v : Ys r > ” : E v c t

Pe 8 &@ § § §$ § @ §€ 35 § | ¢ ;

® 3 &8 w &F &s & & &§ © F glP f@

wo FF 6 § £&§ § ¢ Rk we § Be FE | 2 Pe

p F £¢ 6 § 9 2 F 8 ETS

2 o - _ U 2 - - 8 c

: Lig ; 2.4 G43

- > : 2 r- “ c | S

~ N = y Ay a

> x - “

a 4 | >

¢ v

| 4

* If variable's vertical line traverses 0.00, < - ~

95% confidence whether decision will be

Violation’ or "No Violation. vat |

Aggravating | Mitigating