From [HERE] Dallas police officer continues to kneel on the back of a mentally ill man after he called 911, and long after he had been subdued and restrained. Other officers stand around, joke as the man loses consciousness and died from asphyxiation, 14 minutes later. District court: Qualified immunity. Fifth Circuit (link is external): No way. Reversed. "Within the Fifth Circuit, the law has long been clearly established that an officer’s continued use of force on a restrained and subdued subject is objectively unreasonable." The victim's mother can sue the kneeling officer and several of the others.

The case is Vicki Timpa, et al v. City of Dallas, et al(link is external), No. 20-10876 (5th Cir. Dec. 15, 2021). According to the opinion of the court:

On the evening of August 10, 2016, Timpa called 911 and asked to be picked up. He stated that he had a history of mental illness, he had not taken his medications, he was “having a lot of anxiety,” and he was afraid of a man that was with him. The call ended abruptly. When the operator called back, Timpa provided his location on Mockingbird Lane in Dallas, Texas. In the background of the call, the sounds of honking and of people arguing could be heard. A motorist then placed a 911 call to report a man “running up and down the highway on Mockingbird [Lane,] . . . stopping traffic” and attempting to climb a public bus. A private security guard called 911 with the same report and noted his belief that the man “[was] on something.” The dispatcher requested officers respond to a Crisis Intervention Training (CIT) situation and described Timpa as a white male with schizophrenia off his medications. A CIT call informs responding officers that the situation involves an individual who may be experiencing mental health issues. DPD General Orders instructed that five officers report to CIT calls to perform the “Five Man Takedown,” which is a control technique where each of four officers secures one of the subject’s limbs while a fifth officer holds the head. This technique allows officers to gain control over a subject and simultaneously prevent him from injuring himself or others. Regardless of whether officers were responding to a CIT call, DPD General Orders instructed that, for all arrestees, “as soon as [they] are brought under control, they are placed in an upright position (if possible) or on their side.” DPD General Orders reiterated this instruction for the restraint of subjects suffering from “excited delirium.” Excited delirium is “a state of agitation, excitability, and paranoia . . . often associated with drug use, most commonly cocaine.” Goode v. Baggett, 811 F. App’x 227, 233 n.6 (5th Cir. 2020) (citing Gutierrez v. City of San Antonio, 139 F.3d 441, 444 (5th Cir. 1998)). The Orders described the following symptoms as indicators of excited delirium: “[d]elusions of persecution,” “[p]aranoia,” and “[t]hrashing after restraint.” Officers were instructed to “treat the arrest of a subject [in a state of excited delirium] as a medical emergency” and to “continuously monitor[]” the arrestee because “[s]ubjects suffering from this disorder may collapse and die without warning.” The Orders commanded that subjects in a state of excited delirium “will be placed in an upright position (if possible) or on their side as soon as they are brought under control.” In addition, the Officers on the scene received specific training on excited delirium, which twice reiterated that officers must, “as soon as possible, move [the] subject to a recovery position (on [their] side or seated upright)” because the prolonged use of a prone restraint may result in “positional asphyxia.” The training also warned that “[i]f [the] subject suddenly calms, goes unconscious, or otherwise becomes unresponsive, advise [a paramedic] immediately,” because “[a] sudden cessation of struggle is a prime indicator that the subject may be experiencing fatal autonomic dysfunction (sudden death).”

Supervising Police Sergeant Kevin Mansell arrived first on Mockingbird Lane at 10:36 p.m. By that point, Timpa had already been handcuffed by two private security guards and he was sitting barefoot on the grass beside the sidewalk. Mansell called for backup and for an ambulance, stating that Timpa was “in traffic . . . and he’s definitely going to be a danger to himself.” According to Mansell, Timpa was “thrashing” on the ground, “kicking in the air [at] nobody that’s there,” and “hollering, ‘Help me, help me, God help me.’” Once, before the other Officers arrived, Timpa managed to roll into the gutter of the street and Mansell and a security guard lifted Timpa and placed him back on the grass. Within seven to ten minutes, two paramedics, Senior Corporal Raymond Dominguez, and Officers Dustin Dillard, Danny Vasquez, and Domingo Rivera arrived. Each of the Officers was informed that Timpa was a mentally ill individual off his medications. Three of the Officers (Dillard, Vasquez, and Rivera) were wearing body cameras, which captured the following fifteen minutes. The footage begins with Timpa handcuffed and barefoot on his back on the grass boulevard beside a bus bench, yelling: “Help me! . . . You’re gonna kill me!” The Officers attempted to calm Timpa. Timpa rolled back and forth on the grass, then rolled close to the curb of the street. Dillard and Vasquez immediately forced Timpa onto his stomach and each pressed one knee on Timpa’s back while a security guard restrained his legs. Vasquez removed his knee after approximately two minutes. Dillard continued to press his knee onto Timpa’s upper back in the prone restraint position for fourteen minutes and seven seconds. He pressed his left knee into Timpa’s back and his left hand between Timpa’s shoulders with his right hand pressing on Timpa’s right shoulder intermittently. In his protective vest and duty belt, Dillard weighed approximately 190 pounds.

Approximately fifteen seconds into the restraint, Dillard asked Timpa: “What did you take?” Timpa answered, “Coke.”1 One minute into the restraint, a paramedic attempted to take Timpa’s vitals. The paramedic was unable to get a reading as Timpa continued to struggle and yelled: “I can’t live!” Between three to seven minutes into the restraint, the Officers swapped out the private security guard’s handcuffs with some difficulty because of Timpa’s continued flailing.2 At the same time, the Officers zip tied Timpa’s ankles and forced his lower legs under the cover of a concrete bus bench. While the Officers were securing restraints on Timpa’s ankles, one Defendant-Officer said: “We don’t have to hogtie him, do we?” Another Defendant-Officer suggested “we could pull his legs up.” The Officers ultimately left Timpa’s legs under the bus bench. Seven minutes into the restraint, Timpa—prone and cuffed at the hands and ankles—had calmed down sufficiently for a paramedic to successfully take his vitals. When the paramedic approached, Dillard asked: “Do you want me to roll him over?” The paramedic responded: “Before y’all move him, if I can just get right here and see if I can get to his arm.”

While the paramedic was taking Timpa’s vitals, Rivera left the scene to find Timpa’s car. By the time the paramedic had finished, approximately nine minutes into the restraint, Timpa’s legs had stopped kicking, though he remained vocal and kept calling for help. Thirty seconds later, only Timpa’s head moved intermittently from side to side. He continued to cry out “Help me!” but his voice weakened and slurred. Much of what he said was too muffled to be comprehensible. Forty-five seconds later, he suddenly stilled and was quiet except for a few moans. Then, he fell limp and nonresponsive for the final three-and-a-half minutes of the restraint. The Officers discussed what to do next. Dominguez said to Mansell: “So what’s the plan? You’re [in charge] out here, sir.” Mansell responded that they should “strap [Timpa] to a gurney.” Mansell then returned to his patrol car, “a few feet [away],” to check for warrants for Timpa’s arrest. He sat in his vehicle “with the car door open.” During this time, the Officers began to express concern that Timpa was nonresponsive. Dominguez said, “Tony, are you still with us?” Vasquez said, “Is he acknowledging you anymore?” Dominguez said, “Not really.” Dillard called Timpa’s name to no response. Dominguez stated that he wanted to “mak[e] sure he was still breathing ‘cause his nose is buried in the [ground].” Dillard said, “I think he’s asleep!” and stated that he heard Timpa “snoring.” Dominguez and Vasquez expressed surprise and then made jesting comments about Timpa’s loss of consciousness. A paramedic approached and asked what happened. Dillard responded: “I don’t know. He just got quiet.” Vasquez said: “All of a sudden, just . . . bloop.” The paramedic administered a sedative and Timpa’s head twitched. Then, threeand-a-half minutes after Timpa had become nonresponsive, Dillard removed his knee. Shortly after the Officers placed Timpa on the gurney, the paramedics determined that he was dead. The Dallas County Medical Examiner conducted Timpa’s autopsy and ruled his death a homicide. The report identified cocaine in Timpa’s blood and concluded that he had been suffering from “excited delirium syndrome.” The report further concluded that Timpa died from “sudden cardiac death due to the toxic effects of cocaine and [the] physiologic stress associated with physical restraint,” which could have resulted in “mechanical or positional asphyxia.” Plaintiffs’ medical expert, Dr. Kim Collins, MD, a forensic pathologist, went one step further and concluded, “to a reasonable degree of medical certainty,” that Timpa’s death was caused by mechanical asphyxia, which occurs when an individual’s torso is compressed, preventing respiration and circulation of oxygen. She testified that Timpa’s obesity, extreme exertion, and state of excited delirium exacerbated the risk of mechanical asphyxiation. She further testified that Timpa would have lived had he been restrained for the same amount of time in a prone position without force applied to his back.

Vicki Timpa, the mother of the deceased, individually and as representative of the estate of the deceased, and Cheryll Timpa, individually and as next friend of K.T., a minor child of the deceased, filed this Section 1983 lawsuit alleging, as relevant here, a claim of excessive force against Defendant-Officer Dillard and claims of bystander liability against Defendant-Officers Mansell, Vasquez, Dominguez, and Rivera. Joe Timpa, the father of the deceased, later intervened. On summary judgment, the district court granted qualified immunity to the Officers in their individual capacity on the basis that “there was no law clearly establishing Defendants’ conduct as a constitutional violation prior to August 10, 2016.” The district court dismissed the bystander liability claims on the same basis. On appeal, the Plaintiffs argue that the district court erred in dismissing the excessive force claim and the bystander liability claims. [MORE]