Fifth Circuit holds that there is no per se rule permitting pressure placed on a resisting suspect’s back and that reasonableness of use of force can change in a single interaction

Vicki Timpa, et al. v. Dustin Dillard, et al., 20-10876, 2021 WL 5915553 (5th Cir. Dec. 15, 2021)

Special guest author Joshua Galicia

This is a §1983 excessive force and bystander liability case appealed from the District Court of the Northern District of Texas wherein the district court granted appellees’ motion for summary judgment, dismissing both claims on the grounds that the appellees had qualified immunity. The Fifth Circuit court partly reverse-in-part and affirmed-in-part

In Dallas, Texas, Anthony Timpa called 911 requesting assistance due to a possible mental health episode and stating he had ingested cocaine. A dispatcher requested DPD officers respond to the call and that the individual may be experiencing mental health issues. For mental health calls, DPD general instructs that “as soon as [a person is] brought under control, they are placed in an upright position (if possible) or on their side.” Additional instructions were provided for individuals suffering from a state of agitation normally brought about by drug use, including cocaine. In this case, Officers Dillard, Dominguez, Vasquez, and supervising officers Rivera and Mansell arrived after Timpa had been cuffed by private security guards. Timpa began to roll towards a roadway, so Officer Dillard placed his knee on Anthony’s back, keeping it there for approximately fourteen minutes. Around nine minutes in, Timpa ceased kicking, but continued moving his head back and forth then, for the final three-and-a-half minutes, Anthony became limp and unresponsive. After Dillard removed his knee and paramedics placed Timpa on a gurney, they determined that Timpa was dead. The Dallas County medical examiner conducted an autopsy and determined that Timpa had been suffering from “excited delirium syndrome” and had died from sudden cardiac arrest brought upon by the presence of cocaine in his system as well as stress associated with physical restraint. At trial, Plaintiffs’ medical expert testified that Timpa would have lived had he been restrained without force being applied to his back. Timpa’s family brought suit against Officer Dillard for excessive force and unlawful deadly force and the other four officers for bystander liability. On summary judgment, the district court granted the defendants qualified immunity for both the excessive force and bystander liability claims. The plaintiffs appealed.

The Fifth Circuit court found that Dillard’s arguments for entitlement to qualified immunity mischaracterized precedential case law regarding excessive force. Specifically, Dillard articulated a per se rule by the Fifth Circuit that ‘[the use of a] prone restraint [on] a resisting suspect does not violate the Fourth Amendment even when pressure is applied to the suspect’s back.’ In fact, the United States Supreme Court has specifically rejected any such rule. Further, the Fifth Circuit indicated that excessive/deadly force claims are not analyzed via a generalized view of the incident, but rather via a fact-intensive review of key points throughout, as changing circumstances could require an adjustment of what is considered reasonable force. Additionally, the Fifth Circuit court kept in mind that Dillard had received training specifically on interacting with suspects suffering a mental health episode and those under the influence of certain drugs, like cocaine. In this case, the court considered that Timpa himself called 911 seeking help, that he was already cuffed when Dillard arrived, that Dillard was aware that Timpa was obese (which naturally makes breathing harder when in the prone position), that Dillard was aware Timpa had stated he’d ingested cocaine (which exacerbates any breathing difficulties), that Timpa’s head movements (which Dillard argued was continued resistance) were actually signs that Timpa was attempting to breathe, and that Timpa had gone limp several minutes before Dillard removed his knee from Timpa’s back. Ultimately, the court found that there were genuine material fact issues as to excessive force as well as the use of deadly force.

As to bystander liability, the Fifth Circuit Court found that genuine issues of material fact existed for three of the four officers. Specifically, the court found that there were questions of fact whether the three officers knew Dillard was violating Timpa’s constitutional rights, whether they had reasonable opportunity to prevent Dillard from continuing to place his knee on Timpa’s back, and whether they chose not to act accordingly. The fourth officer left before Timpa stopped moving and did not return to the scene until after Dillard had removed his knee.

The Fifth Circuit reversed the trial court’s order as to Dillard and three of the other officers and affirmed the granting of summary judgment as to the fourth officer.

If you would like to read this opinion click here. Panel consists of Circuit Judges Clement, Southwick, and Wilett. Opinion by Circuit Judge Edith Brown Clement.