Excited Delirium & Mental Health Issues on the Rise: Timpa v. Dillard, 20 F.4th 1020 (5th Cir. 2021)
Today we will discuss an excessive use of force case out of the Fifth circuit. Today’s case not only deals with the Graham factors, but with bystander liability. After the death of George Floyd, bystander liability has of course become a hot topic in law enforcement. In our profession we are quite literally trained to respect and listen to our commanding officer, but more and more we are going to start seeing cases that require the duty to intervene when you see excessive force being used by another officer. In today’s case we will walk through the Graham standards, as we always do in a use of force case and I urge you to also take note of the bystanders in this situation.??
Our case today also involves a CIT, or Crisis Intervention Training. A CIT call informs responding officers that the situation involves an individual who may be experiencing mental health issues. Dallas Police Department General Orders required 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 the subject from injuring himself or others. Regardless of whether officers are responding to a CIT call, Dallas PD General Orders instruct 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.” It is important to note that officers are heavily trained in this scenario and there is a special instruction for those suffering from “excited delirium,” which is defined as “a state of agitation, excitability, and paranoia . . . often associated with drug use, most commonly cocaine.” We talk about excited delirium at length in use of force training and it is important to note the differences in a subject who may be in this state.??
FACTS?
On the evening of August 10, 2016, Anthony Timpa called 911 and asked to be picked up. Timpa 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. Timpa provided his location on Mockingbird Lane in Dallas, Texas. During this time, two other people called 911 concerning Timpa’s erratic behavior. The dispatcher requested officers respond to a CIT situation and described Timpa as a white male with schizophrenia who was off his medications.?
When supervising Sergeant Kevin Mansell arrived, Timpa had already been handcuffed by two private security guards and he was sitting barefoot on the grass beside the sidewalk yelling, “Help me! . . . You're gonna kill me!” Sgt. Mansell called for backup and for an ambulance. A few minutes later, two paramedics arrived along with Corporal Raymond Dominguez, and Officers Dustin Dillard, Danny Vasquez, and Domingo Rivera. Officers Dillard, Vasquez, and Rivera were wearing body cameras, which captured the next fifteen minutes.?
After Timpa began to roll back and forth on the grass, close to the curb of the street, Officers Dillard and Vasquez forced Timpa onto his stomach and each pressed one knee on Timpa’s back while a security guard restrained his legs. Officer Vasquez removed his knee after approximately two minutes. Officer Dillard continued to press his knee onto Timpa’s upper back while he was in the prone restraint position for fourteen minutes and seven seconds. Approximately fifteen seconds into the restraint, Officer Dillard asked Timpa: “What did you take?” Timpa answered, “Coke.” During this time, Timpa was also exhibiting signs of excited delirium, such as “yelling incoherently and acting really strange.”?
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. At the same time, the officers zip-tied Timpa’s ankles and forced his lower legs under the cover of a concrete 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. While the paramedic was taking Timpa’s vitals, Officer 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 was weakened and slurred. Forty-five seconds later, Timpa suddenly stilled and was quiet except for a few moans. Timpa then fell limp and was nonresponsive.?
At this point, Officer Dominguez asked Sgt. Mansell what to do. Sgt. Mansell responded that they should strap Timpa to a gurney and then he returned to his patrol car, located a few feet away, to check for warrants for Timpa’s arrest. During this time, the officers expressed concern that Timpa was nonresponsive with Officer Dominguez commenting that he wanted to make sure Timpa was still breathing because his nose [was] buried in the [ground]. Officer Dillard responded, “I think he’s asleep!” and stated that he heard Timpa “snoring.” Officers Dominguez and Vasquez expressed surprise and then mocked Timpa for losing consciousness. Three-and-a-half minutes after Timpa had become nonresponsive, Officer Dillard removed his knee from Timpa’s back. Shortly afterward, when the officers placed Timpa on the gurney, the paramedics discovered that he was dead.?
Timpa’s mother sued Officer Dillard under 42 U.S.C. § 1983 claiming that his restraint of Timpa constituted both excessive force and deadly force in violation of the Fourth Amendment. Specifically, the plaintiffs claimed that Officer Dillard unlawfully restrained Timpa in the prone position with bodyweight force pressed on Timpa’s back in violation of clearly established law. The plaintiffs also sued Officers Dominguez, Vasquez, Mansell, and Rivera under a theory of bystander liability for their failure to intervene and stop Officer Dillard’s excessive use of force against Timpa. The district court held that all the officers were entitled to qualified immunity and dismissed the plaintiffs’ claims. The plaintiffs appealed.?
FIFTH CIRCUIT COURT OPINION?
To begin, the Fifth Circuit Court of Appeals considered the excessive force claim against Officer Dillard. As we have discussed before in Graham v. Connor , the Supreme Court held that whether an officer has used excessive force depends on “the facts and circumstances of each particular case,” including a non-exhaustive list of factors, such as:
In this case, the court held that the first factor weighed against the prolonged use of bodyweight force, as Officer Dillard’s continued use of force was not justified by a criminal investigatory function. The officers conceded that Timpa’s criminal liability was “minor,” no more than a traffic violation, and they did not intend to charge him with any crimes.?
Concerning the second factor, the immediacy of the threat posed by Timpa, the court found that approximately nine-minutes into the restraint:
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Based on these facts the court held that a jury could conclude that no objectively reasonable officer would believe that Timpa, restrained, surrounded, and subdued, continued to pose an immediate threat of harm justifying the prolonged use of force.?
Concerning the third Graham factor, the court held that the plaintiffs raised a genuine dispute of material fact as to whether Timpa continued to actively resist arrest. The officers claimed that Timpa continued to actively resist arrest by “squirming” and “moving his head from left to right” in the final minutes of the restraint. The plaintiffs argued that Timpa moved his body to breathe, a position supported by the plaintiffs’ expert witness, a forensic pathologist. The court added that the plaintiffs’ claim was not contradicted by the officers’ body camera footage which showed Timpa attempting to raise his torso while he cried out repeatedly, “Help me,” “You’re gonna kill me,” “I’m gonna die,” “I can’t live.” Finally, the court held that the risks of asphyxiation in this circumstance should have been familiar to Officer Dillard because he had received training on the use of a prone restraint to control subjects in a state of excited delirium. Based on these facts, the court held that a jury could find that an objectively reasonable officer with Officer Dillard’s training would have concluded that Timpa was struggling to breathe, not resisting arrest.?
Next the court held that a jury could find that the use of a prone restraint with bodyweight force on an individual with three apparent risk factors, obesity, physical exhaustion, and excited delirium, constituted unreasonable deadly force. The court based this holding on the fact:
The court also found that the state of the law in August 2016 clearly established that the continued use of force against a restrained and subdued subject violated the Fourth Amendment; therefore, Officer Dillard was not entitled to qualified immunity.?
The court then considered the plaintiffs’ bystander liability claims against Officers Vasquez and Dominguez. It was undisputed that both officers stood a few feet away from Timpa throughout the fourteen-minute duration of the restraint and that they were aware of the risks associated with holding an arrestee in the prone restraint position. In addition, the officers did not dispute that they lacked a reasonable opportunity to intervene. Finally, it was undisputed that the officers watched Timpa suddenly lose consciousness, expressed surprise, and then “stood by and laughed” while Officer Dillard continued to kneel on Timpa. Based on these facts, the court held that a jury could conclude that the officers failed to intervene to stop Officer Dillard’s excessive use of force against Timpa; therefore, they were not entitled to qualified immunity.?
The court also held that Sgt. Mansell was not entitled to qualified immunity. Thirty-four seconds after Timpa was subdued, he returned to his patrol car a few feet away and sat with the car door open while he ran a check on Timpa’s license. Although Sgt. Mansell claimed that he did not hear Officers Vasquez and Dominguez mock Timpa for losing consciousness, there was testimony that supported an inference that he was aware that Timpa had become incapacitated. As a result, the court held that a jury could find that Sgt. Mansell remained present on the scene and acquiesced in the violation of Timpa’s Fourth Amendment rights.?
Lastly, the court held that Officer Rivera was entitled to qualified immunity because he lacked a reasonable opportunity to intervene. It was undisputed that Officer Rivera left the scene approximately two-and-a-half minutes before Timpa stopped moving his legs and that he remained absent until after Officer Dillard removed his knee from Timpa’s back.?
TAKEAWAYS?
Mental health concerns and drug use are at an all-time high right now. To protect yourself and your community train yourself on how to handle someone in an excited state. Add as many tools as you can to that arsenal because you most likely will encounter someone like Timpa during your day-to-day duties. Timpa was one of the original 911 callers and he was asking for help. Although it may be difficult or scary to help an individual in this state, it is your job as a law enforcement officer to do so. As police officers you are expected to do it all and handling your community’s mental health concerns is yet another weight on your shoulders. But make sure that you treat them with the same respect and rights as any citizen that you are looking out for. You don’t want to find yourself in a bystander liability suit because you didn’t stand up for someone that you swore to protect.??
Learn more about excessive force and bystander liability by joining us at DLG's 2022 Use of Force Summit live at Mohegan Sun
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