Take the Fifth

Designated for publication

• Aguirre v. City of San Antonio, 17-51031, appeal from W.D. Tex.
  • Dennis, J. (Jolly, Dennis, Higginson), Jolly, J., concurring; Higginson, J., concurring; excessive force, qualified immunity, municipal liability
  • Vacating summary judgment on qualified immunity grounds as to claims against officer defendants for holding arrestee in hog-tied, “maximum restraint” position for five and a half minutes until he could no longer breathe, killing him; affirming dismissal of municipal defendant on claim regarding policy of maximum restraint; and remanding for further proceedings.
  • The Court summarized the undisputed facts surrounding Mr. Aguirre’s death, which occurred during the police response to motorists’ calls about an apparently mentally disturbed individual walking along the median shoulder between the eastbound and westbound lanes of Highway 90 in San Antonio:
    • “What occurred next is documented by the videos taken by dashboard cameras in the Officers’ vehicles, which they left parked near the median on the eastbound side of the expressway. …
    • “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.’ When Aguirre did not acknowledge the command and continued to walk, Gonzales stepped over the median and followed him. Soon thereafter, Officer Morgan, pointing her gun, and Officer Mendez, pointing his taser, also approached Aguirre along the eastbound side. Aguirre then stopped, bent forward, and placed his hands on the median; Officer Gonzalez rushed forward, grabbed Aguirre’s arms, and handcuffed Aguirre’s hands behind him while he remained bending over the median. According to the video evidence, Aguirre did not visibly resist being handcuffed. While handcuffing Aguirre, the Officers noticed that he had fresh needle marks on his arms, indicating that he had recently used intravenous drugs.
    • “The three Officers then pulled Aguirre over the median barrier, causing him to land on his head on the eastbound side of the expressway. The three Officers had blocked the two left-most eastbound lanes with their cars, preventing traffic from accessing the area where they held Aguirre. The Officers patted Aguirre down, finding no weapon, pulled him to his feet, walked him over to the front of Officer Mendez’s car, and bent him over the hood face down with his hands cuffed behind him.
    • “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. Several more officers arrived, and, with Aguirre still being held in that position, the group of officers milled around near where Aguirre was being held, speaking to each other and into their radios. Officer Benito Juarez, a medical tech officer, arrived after Aguirre had been placed in the prone maximal-restraint position, but the record does not disclose that Juarez offered any advice or assistance to the other Officers about the manner in which Aguirre was being held. Officer Arredondo observed that Aguirre’s lips turned blue while he was held in the prone maximal-restraint position, and she thought it was the result of drugs he had taken. At some point during the Officers handling of Aguirre, they called for a police ‘wagon’ to transport him.
    • “The Officers held Aguirre in the prone maximal-restraint position for approximately five-and-a-half minutes, and during this time Aguirre stopped breathing. After the five-and-a-half minutes had elapsed, the Officers noticed that Aguirre was no longer breathing or responsive, and they turned him over on his back and removed the handcuffs. Juarez jogged to the trunk of his car to retrieve his medical equipment. 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. Aguirre remained unresponsive, leading Mendez to perform a ‘sternum rub’ in an unsuccessful attempt to rouse him. When this and similar techniques proved unavailing, Emergency Medical Services (‘EMS’) was contacted and one of the Officers began to attempt cardiopulmonary resuscitation (‘CPR’), but she stopped after about twenty seconds. Eventually, four minutes and thirty-eight seconds after Aguirre was turned over, Juarez began administering CPR in earnest. Juarez and other Officers continued to perform CPR on Aguirre until EMS arrived, and, the video shows the Officers’ body language and demeanor had changed by this time, becoming more serious and no longer smiling or laughing. The Officers were ultimately unsuccessful at reviving Aguirre. A subsequent autopsy report concluded that the position in which the Officers had placed Aguirre had caused him to asphyxiate, stating that ‘[d]ue to the restraint by police, this case is classified as a homicide.'”
  • In analyzing whether the use of deadly force violated Mr. Aguirre’s constitutional rights under the factors in Graham v. Connor, 490 U.S. 386, 389, 394 (1989), the Court held that, “under the Plaintiffs’ version of the facts indicates that the intrusion on Aguirre’s Fourth Amendment interests outweighed the Officers’ interest in placing and holding Aguirre in the maximal-restraint position, rendering their utilization of the technique unreasonable.” Examining the Graham factors, the Court noted that, at most, the offense involved was a traffic offense; that the video evidence showed there was at least a genuine issue of material fact as to 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.”
  • Regarding the role of video evidence, the Court noted, “The Officers contend, and the district court erroneously found, that this case is analogous to Scott v. Harris, 550 U.S. 372, 380 (2007), in which the Supreme Court held that the normal rules of summary judgment do not apply when undisputedly accurate video evidence blatantly contradicts a non-movant’s version of events so thoroughly that it could not reasonably be believed. We emphatically disagree because in this case, the video supports rather than contradicts the non-movant Plaintiffs’ account of the incident.”
  • Having found that the summary judgment evidence created a genuine issue of material fact as to plaintiffs’ excessive force claim, the Court then turned to the deadly force claim, “a special subset” of excessive force claims, and held that the summary judgment evidence showed that “a reasonable officer in the Officers’ position would have known that applying the maximal-restraint position to Aguirre and holding him in this position for an extended period posed a substantial risk of causing his death or serious bodily injury.”
  • As to whether the violation was a violation of a clearly established right, for purposes of the qualified immunity analysis, the Court held, “It has long been clearly established that, when a suspect is not resisting, it is unreasonable for an officer to apply unnecessary, injurious force against a restrained individual, even if the person had previously not followed commands or initially resisted the seizure. … Thus, if the Officers unnecessarily placed Aguirre in the maximal-restraint position when there was no reason to believe he had committed a serious crime, that he posed a continuing threat to the Officers or public safety, or that he was resisting the Officers’ seizure or holding of him, the Officers violated Aguirre’s clearly established constitutional rights.”
  • The Court then addressed two prior cases that had distinguished Guiterrez on the element of clear establishment of the right to not be held in a hog-tied restraint, concluding the review of those cases: “My analysis reveals that the distinctions from Gutierrez drawn by this court in Hill and Khan do not exist here, and their absence is dispositive of the question of whether the law prohibiting the use of a hog-tie-like restraint under these circumstances was clearly established at the time of the Officers’ actions. My reasoning is confirmed by our court’s recent unpublished decision in Goode v. Baggett, in which we reaffirmed that Guiterrez ‘remains binding precedent’: ‘We conclude that Gutierrez clearly established the unlawfulness of hog-tying in certain circumstances.’ 811 F. App’x 227, 236 (5th Cir. 2020). … Though the facts here are not identical to Gutierrez, we need not find the facts to be precisely the same as a previous case to hold that the Officers would have had ‘fair warning’ that their handling of Aguirre was dangerous, unnecessary, and unconstitutional under the circumstances. Trammell, 868 F.3d at 343. The central holding in Gutierrez remains intact: ‘hog-tying may present a substantial risk of death or serious bodily harm … in a limited set of circumstances—i.e., when a drug-affected person in a state of excited delirium is hog-tied and placed face down in a prone position.’ Gutierrez, 139 F.3d at 451. And, as already established, a reasonable jury could conclude that the maximal prone restraint position was tantamount to and as dangerous as a hog-tie. I therefore conclude Aguirre’s right to be free from this position under the facts we must accept here—where he was not resisting, posed no immediate safety threat, and was presenting reasons to believe he was on drugs and in a drug-induced psychosis—was clearly established at the time of the incident.”
  • The Court held, however, that summary judgment was appropriate as to the deliberate indifference claims against the officers, that, “[w]hile these [resuscitating] measures may have been inadequate, Plaintiffs do not present any evidence that the Officers knew they were insufficient and intentionally failed to do more out of indifference to Aguirre’s well-being. Plaintiffs point to the Officers’ demeanor in the dashcam video, arguing that their smiling and laughing suggests that they did not care about the obvious risk to Aguirre’s health. However, the video depicts this behavior before Juarez’s initial efforts to revive Aguirre were unsuccessful. The Officers quickly took on a sober aspect as Aguirre remained unresponsive, which suggests their initial manner was the result of subjective unawareness of the risk rather than knowledge of the risk and a deliberate choice not to take any precautions against the realization of the danger’s fatal consequences. To be sure, we do not condone the Officers light-hearted attitudes, and it may well have been objectively unreasonable for them to have been ignorant of the serious threat to Aguirre’s health. But gross negligence on the part of the Officers is not sufficient to establish the kind of subjective, deliberate indifference that must be demonstrated to establish a Due Process violation.”
  • The Court then upheld the dismissal of the municipal liability claims against the City, for lack of evidence of a policy or custom to support the claim.
  • Judge Jolly concurred, finding that the restraint may have been justified for the first three minutes it was employed, but clearly would not have been after that point, when there were nine officers on the scene and only three involved in the restraint.
  • Judge Higginson also concurred, noting that “our caselaw had converged by spring 2013 around the clearly established proposition that while such an initial restraint is not per se unconstitutional, the continued application of asphyxiating force may be unreasonable where there is no ongoing threat posed by the suspect.”

• Reed v. Goertz, 19-70022, appeal from W.D. Tex.
  • Elrod, J. (Jones, Elrod, Higginson), prisoner suit, appellate jurisdiction, timeliness
  • Affirming district court’s dismissal of prisoner’s § 1983 suit challenging the constitutionality of Texas’s post-conviction DNA testing statute.
  • The Court first held that it had jurisdiction to hear the appeal, and that the Rooker-Feldman doctrine was inapplicable. “In this case, the district court correctly concluded that the doctrine is inapplicable to Reed’s § 1983 claim because Reed challenged the constitutionality of Texas’s post-conviction DNA statute. Reed did not attack the Court of Criminal Appeals’ decision itself.”
  • The Court then upheld the dismissal on statute of limitations grounds. The Court held that Texas’s two-year limitations period applied to § 1983 claims, and that the plaintiff’s § 1983 claim accrued in November 2014, “as soon as the [state] trial court denied his motion for post-conviction relief.”

Unpublished

• U.S. v. Smith, 19-20774, appeal from S.D. Tex.
  • per curiam (Dennis, Costa, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Rodriguez, 19-40971, appeal from S.D. Tex.
  • per curiam (Dennis, Costa, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Mayton v. Casas, 20-50886, appeal from W.D. Tex.
  • per curiam (Jolly, Elrod, Graves), § 1983
  • Affirming district court’s dismissal of plaintiff’s pro se § 1983 claim and denial of motion to recuse.

• Machado v. Garland, 20-60014, petition for review of BIA order
  • per curiam (Clement, Higginson, Engelhardt), immigration
  • Dismissing in part and denying in part El Salvadoran citizen’s petition for review of BIA order denying her request for deferral of removal under the United Nations Convention Against Torture.

• Hernandez v. Garland, 20-60424, petition for review of BIA order
  • per curiam (Clement, Higginson, Engelhardt), immigration
  • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA order affirming the decision of the Immigration Judge (IJ) denying his application for withholding of removal and dismissing his appeal of the IJ’s denial of his application for relief under the Convention Against Torture.

• U.S. v. Brown, 20-60950, appeal from S.D. Miss.
  • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
  • Granting motion to dismiss appeal of 120-month sentence on guilty-plea conviction of one count of possession of a firearm by a felon.