The Fifth Circuit is the worst place to bring a civil rights lawsuit against law enforcement officers. But that may slowly be changing, thanks in part to the Supreme Court, which has played its own part in making qualified immunity an almost insurmountable obstacle in civil cases. Over the past few months, the Supreme Court has reversed and remanded two cases handled by the Fifth Circuit Court of Appeals, ruling that the lower court's extension of qualified immunity was the incorrect conclusion.
This case [PDF] may reflect the Supreme Court's qualified immunity attitude adjustment. Or it just may be that there's no excusing what happened here: a man suffering a mental health crisis being helped to death by San Antonio (TX) police officers.
Jesse Aguirre was reported to dispatchers by drivers on a heavily traveled eight-lane highway. Drivers noted Aguirre seemed to be "mentally disturbed" and possibly in danger of being injured or killed since he was walking on the thin media strip dividing the eight lanes of traffic. Officers arrived at the scene and things just kept getting worse for Aguirre. Fortunately, it was all documented by the dashcam on an officer's vehicle.
Here's the first "offer" of "help" Aguirre received from a police officer:
Officer Gonzales was the first to arrive. She left her vehicle blocking the left-most eastbound lane and approached Aguirre on foot with her firearm pointed at him, ordering him to “come here” and threatening, “I’m going to shoot you, m-----r-f----r.”
Lovely. Gonzales continued to walk after Aguirre, joined by Officer Morgan (also pointing a gun) and Mendez (pointing a Taser). Aguirre then stopped and placed his hands on the concrete median barrier. All three officers rushed Aguirre, grabbing him and placing him in handcuffs. According to the video, Aguirre did not "visibly resist" being handcuffed. The officers then tossed the handcuffed man over the cement barrier, causing him to land on his head.
More officers arrived. And they apparently felt the unresisting man needed more "assistance" dealing with his apparent mental health crisis.
After one or two more officers arrived, they assisted in moving Aguirre from the car hood to the ground onto his stomach next to the median with his hands still cuffed behind him. The video does not show that Aguirre resisted during this maneuver, but instead that he stumbled with the Officers toward the median. After Aguirre was placed prone on his stomach, Officer Gonzales pushed his legs up and crossed them near his buttocks and kneeled forward on Aguirre’s legs, holding them near Aguirre’s bound hands in a hog-tie-like position. Officer Mendez knelt with one knee on the ground and the other on Aguirre’s back, later changing position to hold Aguirre’s shoulders and cheek down against the pavement with his hands. Officer Mendez testified that he was using part of his body weight to hold Aguirre down, thus applying pressure to Aguirre’s back and neck. Officers Morgan and Arredondo then joined Gonzales and Mendez, placing their hands on Aguirre’s arms and back to hold him prone in the maximal-restraint position.
More officers arrived, including a supposed "medical tech officer" (Benito Juarez) but there's nothing on video suggesting he handed out any medical advice or paid any attention to the handcuffed man's condition. One officer noted Aguirre's lips were turning blue but chalked that up to "drug use," rather than the ongoing asphyxiation that was actually occurring.
Aguirre remained hogtied face-down on the pavement for more than five minutes. At some point during that time he stopped breathing, but it was only noticed by the large group of officers after he had spent five-and-a-half minutes in that position. Once they realized he had stopped breathing, the officers turned Aguirre over and the "medical tech officer" jogged off to get some medical equipment.
But no one really seemed to care.
At this point, the Officers appear to be in good spirits; according to the Plaintiffs, in the dashcam videos, Juarez can be seen smiling as he jogs to his vehicle, and several other Officers likewise appear to be smiling and laughing as they await Juarez’s return around Aguirre’s body. Juarez returned at a walk with his medical bag approximately one minute after he left.
It wasn't until more than four more minutes had elapsed that any officer attempted to perform CPR. But it was too late. Aguirre was dead. The autopsy report confirmed what the dashcams had caught: the restraint method had asphyxiated Aguirre. The conclusion: "due to restraint by police, this case is classified as a homicide."
Despite this direct link between their actions and Aguirre's death, the officers wanted qualified immunity. The court refuses to extend it. The amount of force used to restrain Aguirre was excessive. The situation did not call for maximal restraint of a cooperative subject, especially given the criminal act (which is still a stretch) at the center of it.
Defendants do not attempt to show that the severity of any crime committed by Aguirre weighed in favor of the level of force used by the Defendant Officers. In fact, defendants do not articulate any criminal investigatory function justifying their actions, and instead rely on the existence of a threat to the public safety—namely, the potential danger to motorists and himself that Aguirre’s mental disturbance and walking along the median of the eight-lane highway caused. At most, the crime at issue was a traffic offense.
This factor thus weighs against it being reasonable or necessary to place Aguirre in the maximal-restraint position for over five minutes.
And the cops can't swing the court their way by providing testimony that was often directly contradicted by their own dashcam recording.
In their declarations below, the Defendant Officers stated that Aguirre was resisting and they feared that he would break away and run into traffic, causing a dangerous collision and potentially dragging one of the Officers with him. But the Plaintiffs’ summary judgment evidence and this court’s own review of the video evidence at minimum raise genuine questions about whether it was objectively reasonable to believe Aguirre was actively resisting or even physically capable of posing an immediate safety threat that would justify the Defendant Officers in using extraordinarily dangerous force by placing and holding him in the prone maximal-restraint position that led to his death.
The court also points out that the fact the officers suspected Aguirre had recently used drugs should have resulted in more caution being taken while restraining him, rather than less. Even the go-to excuse for in-custody deaths -- "excited delirium" -- is supported by plenty of documentation that shows hog tying suspects or holding them down with body weight increases the risk of death.
But at the end of it, the thing that undoes these officers' planned exit from this lawsuit is their own video. The court brings it up again in support of its qualified immunity denial.
Although the Officers presented their own version of events that included claims of Aguirre’s resistance—including, for example that he “was resisting and trying to pull away from” the Officers while walking near the westbound side of the median, “was still resisting” when placed on the hood of the car, and “continued to resist by shifting his body around and trying to break free” while pinned against the hood of the patrol car—these averments in contravention of what the police dashcam videos show do no more than reinforce that genuine disputes as to material facts exist at this stage of the litigation.
Clearly established enough, adds the Fifth, even without a case directly on point. The difference between "hog tying" and "maximal prone restraint" isn't enough to make it unclear to these "reasonable" officers whether the use of these nearly identical techniques in situations like this would be "excessive."
Whether or not the Supreme Court's recent hints nudged this in the right direction, at least the correct conclusion was reached: restraining someone to death -- especially an unresisting someone -- clearly violates their rights.
With thanks to our Friends over at : Techdirt.
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