Weigel v. Broad

sentence, Rosales-Garay’s holding court rationale and the district probation state criminal adding in these two on the terms of state not err based Defendant’s did Thus, history points. in Rosales-Garay, sentence. as we in conclude the district court did not err Defendant appeal, In the instant adding points to criminal his- Defendant’s unreason similarly argues that it would be § 4A1.1 tory pursuant score to USSG 4Al.l(d) § unjust to USSG apply able and serving where Defendant was a state sen- (e) in state to a defendant who is and in tence at the time he was found im no when custody and has control over accordingly States. We AFFIRM United in him officials will find migration conviction Defendant’s and sentence. that we contends States. He United continuing reentry treat as a should not and he purposes, sentencing

offense for distinguish Rosales-Garay

argues in that case

able because defendant terms physically

was not restrained probation state sentence of

of his being country left the to avoid

could have States, De in the whereas found United Weigel, indi Glenn WEIGEL David by his physically restrained fendant vidually represen co-personal and as imprisonment. sentence of Bruce James tatives Estate of arguments unper find Defendant’s We Deceased, Weigel, Plaintiffs-Appel note that have treated suasive. We we lants/Cross-Appellees, 1326(a) § of continuing violation of v. past. in sentencing purposes fense for Ruiz-Gea, BROAD, individually; As for at 1189. K. and De See F.3d John Ro attempt distinguish Henderson, individually, Defendant’s Defen van Third sales-Garay, agree we with the Cir dants-Appellees/Cross-Appellants. that, returning “[ajlthough the act of cuit Wyoming Highway Patrol; Colonel voluntary, it must to the United States Cox, individually and in his offi John contin relevant whether an alien’s is not I-X, in capacity; and cial John Does presence ued the United States capaci dividually their official discovery.” voluntary at the moment of ties, Defendants. Dixon, v. 327 F.3d United States (3d Cir.2003); see States v. also United 05-8094, Nos. 05-8102. (9th 1435, 1437n. 2 Ortiz-Villegas, 49 F.3d Cir.1995) Appeals, States Court of United “was (noting that the defendant Tenth Circuit. voluntarily country in this at the time aof apprehended he was and convicted Oct. inability depart crime” and “[h]is We country making”). was of own this relied on

note that two the three cases Rosales-Garay involved a defendant serving imprison

who was sentence Coeur,

ment, v. see United States (11th Cir.1999); States United

Santana-Castellano, 74 Cir. F.3d

1996), distinguish we see cause to no McCalla, A. Spence

Larissa Lаw Firm, LLC, (G. Jackson, Bryan WY Ulmer III, Lawyers & Wyoming, Advocates for Jackson, WY, briefs), with her on the for Plaintiffs-Appellants/Cross-Appellees. Cox, Attorney Christine Assistant Gen- (Patrick Crank, eral Wyoming Attorney J. General, Renneisen, Deputy John W. General, Attorney briefs), with her on the WY, of Wyoming, Cheyenne, State for De- fendants-Appellees/Cross-Appellants. HARTZ, SEYMOUR, Before O’BRIEN, Judges. Circuit SEYMOUR, Judge. Circuit Plaintiffs Glenn Weigel Weig- and David el filed this action against Wyoming High- way Patrol Officers John K. Broad and Henderson, Devan supervisor, and their Cox, John individually. Plaintiffs make judgment.” train and Fuerschbach v. excessive Southwest of failure claims Co., 1197, 1201 § 1983 n. 1 42 U.S.C. and state Airlines force under Cir.2006) (citing The claims stem from Feb.R.Civ.P. negligence law. 56(c)). brother, Bruce Weigel, who death their 20, 2002, morning On the of December Troopers altercation with died after an Wyoming Troopers Highway Patrol Broad Defendants moved Broad and Henderson. were both en route to summary judgment, asserting qualified Wyoming Interstate port-of-entry on concluding defendants were immunity. In order to port, reach the suit, the district court held immune from exited 1-25 and turned southbound around could show defendants plaintiffs while in the 1-25 median to enter northbound. Weigel’s Fourth Amendment violated Mr. Trooper 1-25 Broad entered northbound search right to be free from unreasonable first, by Trooper followed Henderson. seizure, they troop- could not show Just after Henderson entered Trooper objectively ers’ conduct was unreasonable highway, Bruce struck Trooper light established law. The car Broad’s from behind. After the colli- granted court defendants’ motion therefore sion, Mr. careened Weigel’s through car judgment. for Because the stan- summary the median re-entered strip and 1-25 immunity Wyo- under qualified dard for Weigel’s south. Mr. vehicle came to a rest ming stringent, the court denied law is less on the left shoulder of the 1-25 southbound summary judgment for defendants’ motion stopped Trooper lanes. Broad’s vehicle to law claims. The court the state northbound, the left shoulder of 1-25 and § claims for interlocu- certified the over to Trooper pulled Henderson the tory to Rules of pursuant Federal appeal northbоund. right shoulder of 1-25 54(b), stayed and mat- Civil Procedure the Trooper dispatch radioed to Broad pending appeal. ter We construe the there had an accident. Records indi- been to only permit order court’s certification a.m. Troop- cate that call was made at 7:50 summary judgment an from the appeal Weigel’s Broad Mr. vehicle approached er brought § 1983 entered on the claims Weigel’s injuries, to if on foot assess Mr. and against Henderson Broad and Officers need any. Weigel Mr. denied the for an opinion our to defendants reference this department it was ambulance. Because appeal, only plaintiffs to them. On refers supervisor to when offi- policy notify a argue wrongly district court decided the crash, Trooper in a Broad cer was involved prong qualified immunity of the second patrol supervisor. Troop- radioed for his cross-appeal, contending test. Defendants ers cannot a crash which are work incorrectly the court decided the first involved, agreed Trooper so to immunity prong qualified test. of making the responsible for accident jurisdiction pursuant We take to 28 report. § U.S.C. 1291 and reverse the district made, judgment being both summary report as to While grant court’s § Henderson asked Mr. plaintiffs’ Troopers 1983 claims because we con- Broad and questions clude Weigel there are fact as to about the cause accident. applicability qualified immunity. Weigel Mr. said he believed vehicle’s steering come loose broken. linkage had

I Weigel asked Mr. Trooper Henderson then license, vehicle produce reg- to case, his driver’s the facts of reciting “In this we istration, insurance, only he was but light view in the the evidence most favor- produce registration and able to his vehicle non-moving party, appro- able as is to Mr. speaking Weig- with priate reviewing grant summary insurance. While when Henderson, Trooper el, involving Weigel, smelled Mr. Trooper Henderson alcohol on and, Broad, eventually, bystand- Trooper agreed Broad Mr. Trooper his breath. struggle ers. Accounts of the are conflict- Weigel’s of alcohol. Be- breath smelled ing, generally agreed that Mr. possible inebriation but lieving Weigel’s Mr. accident, attempting re- Weigel fought vigorously, may have contributed peatedly troopers’ weapons if to take Trooper Weigel Mr. he Henderson asked sobriety handcuffing. evade submit to a field test and would agreed Weigel Mr. to do so. melee, Trooper the midst of approached Trooper Henderson then Weigel in a choke put Henderson Mr. hold. to Trooper interstate return Although got Broad then ahold of Trooper Trooper car. patrol Henderson’s arms, at one of Mr. id. Mr. coming van toward Henderson “noticed a At fight. continued to resist and subject to wait be- [He] told [them]. point, solicited assistance crossing the Interstate or he would fore bystanders gathered Weig- near Mr. hit. at get Weigel] looked [Mr. [him][and] el’s call Responding vehicle. the Interstate. continued walk across Stickley help, grabbed Dana a downed Weigel] again then told once [Mr. [He] fencepost across the and headed interstate stay get back where out of [he] Trooper assist the officers. Because steps took a few Weigel] [Mr. traffic. Broad had the second secured handcuff him, him, at toward looked then [and] back arrived, just Stickley as Mr. he did not straight ran looked the van out [and] club Mr. fencepost. Id. at II Aplt.App., front the van.” vol. handcuffed, Even Mr. contin- was in Weigel Mr. struck 333-34. struggle, Stickley lay ued to Mr. so across passing chest the sideview mirror of the Weigel’s legs. the back of troop- Mr. hit, Seeing Weigel that Mr. van. Weigel ers in a maintained Mr. facedown Trooper Broad for an radioed ambulance. position. Broad Trooper applied pressure Records indicate call was made at this 7:54 Weigel’s body, to Mr. his upper including Weigel attempt a.m. Mr. continued his shoulders, by using neck and either one or despite cross the interstate blow. both knees and his hands. See id. at 379 fled, Weigel Trooper Mr. When Henderson (“But I if I do not know had —I’m unsure thought trying “he to commit [was] suicide one whether or not I had or two knees on right the van there and [was] because me him.”). Trooper Henderson straddled Mr. him it.” and both see Id. at 396. [could] Weigel’s upper and thighs buttocks generally witnesses described Mr. Other held Mr. Weigel’s place. arms At some Weigel’s “strange,” “bizarre,” behavior as point, binding bystander began another “odd,” normal,” id. “not id. at Weigel’s plastic Mr. tubing feet with and “erratic.” Id. at 638. vehicle, cord found in while Mr. his Stick- safety ley Weigel Weigel’s Concerned for the of Mr. legs. remained on Mr. With public, Trooper and the Henderson fol- Trooper positioned Weigel’s Broad Mr. him, torso, Weigel, upper Stickley positioned lowed Mr. tackled Mr. top wres- him in a ground alongside Weigel’s Weigel’s tled ditch of Mr. Mr. legs, hands ensued, bound,1 highway. struggle A further cuffed and or being his feet bound Trooper contradictory Weigel’s offered 1. Henderson remember if Mr. feet were tied testimony Weigel’s as to when Mr. feet were when he left scene but he the immediate asked, they bound. When he said that first they "noticed that tied” when he re- patrol were bound when he went to his car. turned. Id. at 406. Aplt.App., He later vol II. at 404. said he did struggle, get up.”) said don’t don’t went to his vehicle Trooper Henderson Stickley stayed on viewed the situation under con- hands. Mr. witness warm his determined legs Trooper until was trol when Henderson went back Mr. Aplt. in cardiac arrest. Weigel Trooper to his car. Id. at 620. When Mr. long Weigel vol. Ill at 645. Broad was asked how App., Mr. struggled completely stopped, before he he in report police to a In his initial “Oh, responded: after he was handcuffed? Trooper Henderson indicated vestigator, minute, I A and a don’t know. minute before he that Mr. was subdued half.” Id. at 358. “Trooper him. Henderson said left Trooper vehi- Henderson estimated his laying on his stomach with his driver was approximately twenty cle was feet from side, legs straight out head turned to the Broad, Weigel, Trooper Mr. and Mr. Stick- Trooper just quit struggling.... car, ley. Trooper While Henderson to his vehicle to patrol Henderson went door, heater, shut the turned on his obtain radio additional assistance and warmed his hands. One witness testified Id., gloves.”2 vol. II аt 340- his coat and Trooper made a radio call Henderson event, deposition account.of dispatch while his vehicle. While rec- he would not Trooper Henderson testified person ords show a at the scene radioed Weig returned to his vehicle Mr. “[i]f have dispatch at a.m. that 7:57 with information safety safety risk to the posed [him] el subsided, struggle Trooper had standing around or or the other witnesses making Henderson does not remember further Trooper Broad.” Id. at 406. He Trooper call. re- this When confident with the witnesses stated he “felt scene, Trooper turned to the immediate suspect if the Weigel] around [Mr. him Broad told he believed Mr. had keep him get up tried to would stopped breathing. Troopers rolled Trooper ...” Id. 425. When down Mr. on to his back and determined deposition, in his “[D]id Broad was asked in full arrest. A call to that he was cardiac you could control you feel comfortable ap- this was made at dispatch reporting Henderson,” Mr. Weigel] without [Mr. began proximately 8:00 a.m. Resuscitation think “I I did with the witnesses replied, located, after a CPR mask was but the holding body.” down his lower Id. at still attempts Mr. were resuscitate 358. autopsy revealed the unsuccessful. witness testified that Mr. One likely cause of Mr. death most struggle points at one or two ceased caused asphyxiation was “mechanical id., Ill at throughout the event. See vol. respiration by weight applied inhibition of (“[T]here one, what I recall sort of vol. I at upper ApltApp., to the back.” major Weigel] quit time when [Mr. a 185; II 472. vol. struggling and then the situation seemed should [diffused], asphyxiation The risk of such ... and then completely to be Troopers Broad and have been familiar to try get up and move he started to training materials the officer Henderson. Numerous again, around and that’s when struggling quit during the time al fact as to when Mr. 2. The dissent maintains that 1163-6,4 hearsay. n. it is Dissent at Trooper returned to his vehicle because However, Federal Rule of Evi- “Weigel struggle,” dissent at 15. under continued to 801(d)(2)(A), is Henderson's statement Trooper own statement dence 1158. Henderson’s party opponent a аnd is police investigator an admission of belies this assertion. White, hearsay. contradictory See Plotke this state- therefore The dissent maintains (10th Cir.2005). 1094 & n. 1 genuine materi- ment cannot create a issue of provided troopers type Informing to the addressed the of restraint.” Id. on the risks of on an putting weight individual’s positional asphyxia,” “do’s and don’ts [of] lying back when is person his stom- stated, possible, much as slides “[a]s troopers ach. During the use-of-force POSSIBLE, AND AS SOON AS relieve training Wyoming at the Law Enforce- subject heavy weight used for con- (WLEA), they ment Academy provid- trol;] misinterpret suspect’s strug- Don’t materials, ed with extensive written oral gle oxygen for as continued resistance^ lectures, presentations and audiovisual re- get soon as possible person and] [a]s garding dangers Custody Sudden side, prone position, out of the on his/her Syndrome positional Death asphyxia- position[.]” or seated in upright [an] Id. at I ApltApp., tion. vol. at 109-29. These 197. phenomenon documents discuss the of sud- troopers training also viewed vid- provide den custody death and direction in eo on avoiding the risks associated with avoiding the death of arrestee. The positional asphyxiation. The video de- materials warn repeatedly putting physiology scribed the of breathing and weight person on the of a upper may torso explained what when happens weight is positional asphyxiation. cause For exam- placed a person prone on the back in a ple, one provides following document position. two guidelines relevant video admonishes law en- preventing “[1) in custody: deaths As ] soon as the forcement aware of the risks of subject handcuffed, get him is off his stom- weight applied back prone to the of a ach. place Turn him side or on his him in suspect and them to roll instructs a sus- [2) position. seated If he ] continues to pect off of his and onto stomach his side as struggle, do not sit his back. Hold his soon Aplt. App, as he is III cuffed. vol. legs legs down or wrap strap.” with a 518. The demonstration of what to do Id. at 111. once a person precise: is get subdued

Another training provided document person belly. off of his regarding in-custody sudden Finally, testified had death discusses the extra care that should an understanding positional cause of be taken special with detainees who have asphyxiation. example, For when asked of “Special needs. Id. at prison- needs” his understanding the term “violently ers are those that resist arrest asphyxiation, stated, Trooper Broad it “is try officers, to assault ... impaired are basically somebody’s when face down drugs, alcohol or ... other breathe and pressure applied and—and to their— heavily pallid skin, sweat and exhibit ... back body, upper or their upper torso and are in engaged incoherent and irrational it basically them from breathing.” restricts conduct ... speech, or overly [or] are Aplt.App., vol. II at 365. obese and who are known to have a medi- cal condition.” Troopers Id. Broad and II Henderson also a powerpoint pres- viewed We de novo the review district entation on in-custody deaths. Id. at 194. grant court’s summary judgment of based One explained slide that in-custody deaths qualified immunity, applying the same “tend to share which elements occur in a legal by standard the used district court. basic sequence: subjects display bizarre or Ward, 1341, Lawmaster v. 125 F.3d 1346 behavior[;] frenzied always, almost sub- (10th Cir.1997). jects Summary judgment ap are drugs intoxicated alco- and/or hol[;] propriate only if struggle genuine [there is violent “there is no issue a] police[;] police employ any use force and as to a material and ... moving fact the

1151 right clearly matter judgment as a whether established.” is entitled to party Katz, view 194, 201, 56(c). Fed. R. “We law.” Civ.P. 533 U.S. of Saucier (2001) reasonable infer- 2151, 150 evidence and draw (empha L.Ed.2d light in the favor- added). therefrom most ences sis party.” nonmoving Lawmas- able Constitutional Violation

ter, 125 F.3d at 1346. Saucier, we Following first deter Qualified immunity is an affirma on the in support mine facts offered of an excessive force claim. tive defense to plaintiffs’ claim whether Broad Troopers immunity is “[q]ualified doctrine of and Henderson violated constitutional act рrotect public officials who designed against the use prohibition of excessive faith, objectively good in on the basis of court, Like force.3 the district we con understandings of law at reasonable clude did. actions, personal time of their later-announced, liability on account claims that “[A]ll law enforce constitutional norms.” Pierce v. evolving officers used ment have excessive force (10th Gilchrist, 1279, Cir. 359 F.3d arrest, investigato ... in the of an course 2004). quali When a defendant raises the ry stop, or ‘seizure’ of citizen other free immunity summary judg fied defense analyzed should be under the Fourth ment, plaintiff must first “demonstrate Amendment and its ‘reasonableness’ stan actions violated a con that the defendant’s Connor, 386, dard.” Graham v. statutory right.” Nelson v. stitutional 395, 104 L.Ed.2d 443 (10th McMullen, Cir. (1989); Holland ex rel. v. Har Overdorff omitted). 2000) identi (quotation “[A]fter rington, 268 F.3d 1187-88 Cir. rightfs] allegedly fying the constitutional 2001). The in an force “inquiry excessive violated, must determine whether courts objective question case is an one: the objectively the conduct was reasonable objective actions whether officers’ are time light of established law at the light ly reasonable the facts Pierce, 1297. place.” 359 F.3d at took them, confronting without circumstances Court, Supreme “[i]f As articulated intent or regard underlying motivation.” right no constitutional would have been Graham, 388, 109 S.Ct. 1865. U.S. established, allegations violated were the evaluated under a totali Reasonableness is necessity inquiries no there is for further circumstances ty approach which concerning qualified immunity. On following requires we consider the hand, if could made out other a violation issue, severity “the of the crime at factors: parties’ view the submis on favorable sions, next, suspect poses ask an immediate sequential step is to whether cross-appeal, they not certain within claim. See Fed. In defendants’ assert issues 54(b) (court may entry "a holding troop- district court erred in that the direct R.Civ.P. force, judgment one ... “unreasonably applied final as to or more ers excessive claims”). granting plaintiffs Aplt. permission violation of the Fourth Amendment.” appeal interlocutorily, the court nec- App., contend we district vol. Ill at 718. Plaintiffs appeal plaintiffs’ entire jurisdiction cross-appeal, essarily no over the certified for have claim, validity part § of is of arguing only the court certified for 1983 the which district analysis. qualified immunity appeal the whether a of Defendants' issue of lack as cross-appeal better law defendants from suit. is thus characterized established shielded 54(b) argument urging disagree. Although permits simply an us to affirm We Rule decision; effect, only has court’s defendants those claims which district court district right court appealed separately, the contend the district reached declared final to be claim, wrong provides appeal for reason. of an entire decision rule for gen, Weigel threat to safety officers or oth- after was subdued [Mr.] ers, actively and whether resisting longer he no a threat. arrest or to evade arrest attempting ApltApp., vol. III at 718. Graham, 396, flight.” 490 U.S. at A review of the facts in the light Additionally, S.Ct. 1865. “the ‘reasonable- most plaintiffs persuades favorable to us ness’ of a use particular of force must be they give jury question rise to a regarding judged perspective from the of a reason- whether reasonably. the officers acted scene, able officer on the rather than with First, a there is evidence reasonable offi hindsight.” vision of Id. That 20/20 cer pressure would have known that the perspective includes “examination of placed on Weigel’s upper Mr. back as he the information possessed the [offi- lay significant on his stomach created a Creighton, Anderson v. cers].” risk of asphyxiation and death. His appar 635, 641, 3034, 97 L.Ed.2d 523 intoxication, behavior, ent bizarre and vig (1987). struggle orous him a strong made candi officer probable “Where has [an] date positional asphyxiation. for See Cruz cause to suspect poses [a] believe that Laramie, City v. 1188-89 harm, physical threat of serious either to (10th Cir.2001) (agitated state constituted others, the officer or it is not constitution pressure clue to that trained officer ally ‍​‌‌​​‌‌​‌​‌‌​‌​‌‌​​​‌‌‌​​‌​‌​‌​​‌​‌‌​​​​​​​​​‌‌‌‍prevent еscape by unreasonable to likely the chest was cause Castle, using deadly force.” Carr v. 337 asphyxia). And training WLEA materials (10th Cir.2003). Here, F.3d pressure made clear that applied to plaintiffs assert after that the threat of Weigel’s Mr. upper torso would suffice to physical passed, serious harm had cause his suffocation. troopers’ application weight to Mr. Second, there is evidence that

Weigel’s upper constitutionally torso was Mr. Weigel subjected to pressure was such unreasonable. The district court conclud significant for a period after it was clear ed as follows: that the pressure unnecessary was to re alleged, As Weigel was in custody [Mr.] strain him. The defendants make no claim at the time Weigel’s of his death. [Mr.] that once Mr. was handcuffed and death arguably came as a result of the bound, legs his pose still would pressure applied that upper was his officers, threat public, or himself subdued, torso after he was and no long- unless he was maintained on his stomach er a threat. in a prone position, He was with pressure imposed on upper his back. and handcuffed. Indeed some evidence Yet there was evidence that Trooper when suggests legs that his were bound to- Henderson returned his vehicle to warm gether. The also suggests evidence hands, handcuffed, his Mr. his the encounter had become stabilized to bound, feet were Mr. Stickley point that one the Troopers left See, lying legs. e.g., across his Sallenger [Mr.] and went to his vehicle to Oakes, (7th Cir.2007) F.3d warm easily his hands —it inferred (officer’s departure from struggle raised Trooper Henderson would not have question of fact to degree Trooper left control thought Broad had he [Mr.] cuffed.). over subject Weigel still after he was posed credible There threat is also safety----An evidence that Mr. objectively Weigel was main reasonable police ... tained in position officer would have contin- about three min ued to apply pressure to utes: Trooper the time it [Mr.] took torso, upper thereby denying him oxy- vehicle, to walk to his call the disрatcher to

1153 control, they clearly was under violated was not established at that Mr. report hands, Weigel. Mr. the of disagree. and return to time the incident. We warm his Troop- inference that Making a reasonable question before us is whether the promptly called dis- er Henderson a clearly violation involved established report Weigel’s on Mr. condi- patcher to right a person about which reasonable tion, Trooper between time have would known. (three minutes) two calls Henderson’s “Ordinarily, in order the law to be length same of would be about the established, clearly there must be a Su- Weigel was held on his that Mr. time preme Court or Tenth Circuit decision restrained, legs his his hands stomach with clearly on point, or established cuffed, by his back held down upper authority weight of from other courts Trooper from Broad.4 pressure must have found the to be as the law short, that for three In there is evidence plaintiff plaintiff maintains.” The is subjected minutes the Mr. show, however, very to that required unnecessary knew to force that question previously act in was held un- a to restrain him and that reasonable offi- to an of lawful order establish absence signifi- presented cer would have known qualified immunity. death. If danger asphyxiation cant of Cruz, (quoting 239 F.3d at 1187 Medina v. true, this constitutes an unreasonable use Denver, 1493, City County of under Fourth Amendment. of force Cir.1992) (footnote (10th omitted). 1498 Antonio, City v. San 139 See Gutierrez of district of compared court facts (5th Cir.1998) (“material 441, dis- F.3d 449 Cruz, hog-tied, decedent to where the to Gutierrez pute fact exists as whether the facts of case and there this concluded bodily or posed a threat death serious clearly prohibiting was no law established others,” to injury hog- to the officers or case). troopers’ actions because dissim- tying excessive force ilarity between the factual scenarios. Clearly Law Established Cruz, Wyoming police responded officers a complaint running of a naked man court also held that defen- district landing apartment the exterior of an build- dants Mr. Fourth violated ing. ar- Id. 1186. When officers rights. Amendment But court relieved rived, Cruz, landing, the man on the liability ground them of on the that law Mr. used, (2) argument being that a citizen has been un- Trooper Henderson makes no arrested, (3) any liability justifiably or constitu- should be addressed differ- ently Trooper by that of Broad because he committed than tional violation has been Weigel went was in his car when Mr. into In order for lia- law enforcement official. Moreover, recently attach, cardiac arrest. as we rec- bility to there have been must Cruces, City ognized in Vondrak v. Las opportunity prevent realistic intervene 1198, (10th Cir.2008), F.3d estab- occurring. offi- Whether an harm lished had to intercede or was cer sufficient time being capable preventing the harm have an all law enforcement officials by fact caused another officer is issue of duty protect the affirmative to intervene to unless, considering jury all the evi- for the rights from in- constitutional citizens dence, possibly jury could not reasonable fringement law offi- other enforcement conclude otherwise. presence. An who cers in their officer fails Branen, (quoting Anderson Id. preventable for the intercede liable Cir.1994)) (citations (2d omit F.3d the other harm caused the actions of Brewer, ted); also Mick v. F.3d see officers where that officer observes has 1996). (1) Cir. that excessive force is reason know: jumping down do up kicking was his hibits unreasonable seizures. We not legs in the air. he descended from requires When think it a court decision with iden- landing, the the officers wrestled him to clearly tical facts establish that is ground They the and handcuffed him. deadly unreasonable use force when nylon to his applied restraint ankles to totally unnecessary force is restrain struggle. Then a abate continued met- officers, protect suspect public, or clip al was used to fasten the wrist and Yet, the suspect explained himself. together, ankle restraints a restraint tech- above, is there evidence this what Shortly nique hog-tying. known as there- happened readily here: even after it was after, Mr. Cruz’s face He blanched. was apparent significant period for a of time pro- he was hоspital, rushed where (several minutes) that Mr. was ful- Expert reports nounced dead on arrival. ly posed danger, restrained and no indicated that Mr. Cruz’s death resulted pressure defendants continued to use on a positional asphyxiation. person’s upper vulnerable torso while he

Although clearly we held there was not lying on his stomach. A reasonable prohibiting law established the officers’ ac- present officer would know these actions tions at time encountered Mr. totally substantial and unnecessary risk of Cruz, we also made clear that similar fu- person. Supreme death to the As the ture prohibited. Specifically, conduct was Court has stated: stated, may apply we “officers th[e right clearly For a constitutional to be hog-tie] technique when an individual’s di- established, its contours must suffi- be capacity apparent.” minished Id. at ciently clear that a official reasonable conclusion, 1188. To reach this we not doing would understand that what ishe only hog-tying evaluated cases and the that right. say violates This is not to technique, risks generally we also that an official protected by action is dangers the known discussed “sudden qualified immunity very unless the ac- custody syndrome.” death Id. 1189. tion in question previously has held been specific We made note of “the relationship unlawful, say but it light is to that in improper between restraints and pre-existing law the unlawfulness must asphyxiation.” particular, high- Id. we apparent. lighted “breathing problems created Pelzer, 730, 739, Hope U.S. by pressure on the back and placement in (2002) (citations L.Ed.2d a prone position, especially when indi- omitted). quotations internal vidual is in a state of ‘excited delirium.’ breathing These problems asphyxi- lead to highly Cruz turns out to be relevant to ation.” Id. case, this but not for its legal teaching. Rather, opinion apparently The district court believed that reason extensive WLEA training type of restraint used in Cruz was positional asphyxia that we describe sufficiently employed different from that troopers’ instructor, above. The training Mr. Cruz did not Vincent, Trooper Terry testified he re- the unconstitutionality establish of defen memorandum, ceived a distributed state alleged dants’ But analysis actions. our wide, discussing Aplt. Cruz decision. constitutionality this case of the App., II at Trooper restraint of Mr. vol. require does not us to compare Trooper of Cruz recalled allega posting facts Vincent “some tions It general here. is based on case in our regarding more law office” hog-tying principles. pro- The Fourth Amendment or positional asphyxiation called ver- “Cruz prone position being after something like that.” Id. face-down sub- Wyoming sus vague- incapacitated Broad testified dued constitutes ex- Trooper at 418. and/or the in Cruz and ly Champion decision remembered cessive force.” v. Outlook that the Nashville, Inc., (6th it to be the reason understood 380 F.3d Cir.2004). Wyoming Highway prohibited Patrol was also ex See Drummond rel. Id. at 367. hog-tying from detainees. Anaheim, City Drummond v. of Gutierrez, Cir.2003); 1061-62 If had not handed Cruz been 139 F.3d at 450-51. In circum- these down, Wyoming would perhaps troopers stances, not defendants are entitled to training not on have received qualified immunity stage at this and would be uninformed about asphyxia proceedings. of danger. But the reasonableness must in we light Accordingly, actions be assessed REVERSE the district officer’s § training. dismissing plaintiffs’ of the officer’s defendants’ court’s order them training against informed that the force claims on the basis of Weigel a substan upon produced qualified immunity, used Mr. REMAND and we for clearly is tial risk of death. Because it proceedings. further deadly that cannot law force established HARTZ, Judge, concurring: Circuit unnecessary it restrain a used when officers, suspect safety or secure I and Judge concur the result all of himself, suspect public, or the defen Seymour’s opinion except point. on one I unnecessary deadly force vio dants’ use do not think that the defendants violated clearly lated established law. Weigel’s rights Mr. constitutional before legs light Weig- his bound. Mr. were recognize leading We the events behavior, strength previous el’s was happened quick up Weigel’s Mr. death view, not, my of the offi- unreasonable that, ly. acknowledge up further to a We kеep prone him a position cers them point, protecting upper long on back so as the weight public Weigel from Mr. selves only legs weight restraint on his was the But Mr. from we are not himself. sitting a them. Neverthe- bystander by addressing split second decisions law less, Trooper initially testified protect enforcement officers to themselves that Mr. feet were bound when he public. stating Nor we that are car; jury went to his and a could patrol troopers necessarily acted unreason applied Trooper pressure find that Broad If, however, ably. plaintiffs prof the facts Weigel’s upper to Mr. back for as much as jury are and the draws the fered true after his feet were bound. three minutes supportive plaintiffs’ po inferences most finding a verdict that support That would sition, then law was established subjected Mr. was to unconstitu- applying pressure Weigel’s up to Mr. tional force. back, per once he handcuffed and his restrained, constitutionally legs unrea O’BRIEN, Judge, dissenting. J. Circuit significant posi due risk of sonable very general announces asphyxiation tional associated with such troopers may subject a detained overtly, We if not actions. said this rule — beyond person prolonged force nec- inference, in strong and deducible Cruz. him if reasonable essary to restrain Moreover, cases other circuits have applied have known the trooper would “clearly put it is stated established of as- presented significant danger ting force significant pressure substantial or It phyxiation is in a and death. sounds remark- suspect’s suspect back while that ably generic like tort “[N]egligenee fighting still less than three law— conduct which falls below standard admittedly minutes. The full extent of the protection established law for the of necessary positional restraints continued against others unreasonable risk of harm.” only for ten or fifteen seconds after § It 282. (Second) actually longer Restatement of Torts was subdued and no a the leaves details to be sorted out after the am unwilling threat. I to the tech- say by jury fact a in an appropriаte case. But employed here in niques waning the mo- analysis an undifferentiated of the facts fight ments of a desperate were unreason- barely should force plausible case to able, even though resulted in go correctly to trial. The district court death. relating concluded law to respectfully I aspects dissent from all restraint was not as established majority opinion. I would reverse the facts, to relevant these but it first district court’s conclusion that a constitu- required by Saucier1 to confront and de- tional violation occurred. In the alterna- so, cide the constitutional issue. It but did qualified tive are entitled to incorrectly my view. The fol- (as concluded). immunity the district court lows same of analysis order and so qualified immunity “As defense has shall I. evolved, provides it ample protection to all analysis compares Reasonableness plainly incompetent but the or those who responses. threats and Unless all of the knowingly Malley violate law.” v. circumstances of the case are considered 335, 341, 1092, 475 Briggs, U.S. 106 S.Ct. unitary as a analysis whole the fails. Gen- (1986). 89 L.Ed.2d 271 Incompetence debate; eralizations do little inform to knowing violation of law is a tough case to particularized focused and attention to the it make and hasn’t been made here.2 required. facts is This incident short qualified “The entitlement immunity] [to minutes) (slightly more than ten in- and immunity is an suit rather than a (almost tense inception troop- from its liability; mere defense to an and like abso- ers fighting with for a immunity, lute if effectively is lost a case significant literally time fighting for their lives). erroneously permitted is go to trial.” Weigel’s acts, not those of these 526, Forsyth, 511, Mitchell v. 472 U.S. 105 troopers, escalated the violence to an ex- 2806, (1985). dangerous S.Ct. 86 L.Ed.2d 411 tremely Immu- level. His ful- behavior ly justified nity only principles can employed restraints well served as their application duration. As the wholesome fighting judge’s subsid- the trial ed the continued to forcibly gatekeeping responsibility re- summary at the (and monitor) strain but judgment stage.3 handcuffed step first is to dis- Katz, 194, 201, dismiss, 1. v. Saucier 533 U.S. S.Ct. example, 121 tion to for tests suffi- 2151, (2001). 150 L.Ed.2d 272 ciency pleadings. only by But constrained 11 Rule of the Federal Rules of Civil Proce- "Although 2. damages provide actions for 1927, § dure pleading U.S.C. clever is important remedy injured by for individuals usually pass sufficient Summary that bar. governmental authority, officials' abuse of hand, facts, judgment, on the other tests subject such actions sometimes officials to allegations. which are less malleable than costly harassing litigation potentially expert. smorgasbord experts Enter the A performing inhibit officials in their official opinions support any theory almost Cram, 1124, duties.” Medina v. now experts available. The creative use of (10th Cir.2001). prompted testimony, super- restraints their Gatekeeping responsibilities always judge. are intended the trial See Tire Kumho present, they vary, Carmichael, but tone and tint. A mo- Co. v. As approaching. facts and tor trailer trucks he de- to uncontested the record till facts favorable material “At that deposition: point contested scribed it at his claiming injury. See Fed.R.Civ.P. party chasing I [Weigel] pur- start after foot 56(c). only genuine issues of contest But I suit. And notice there two [are] fact are entitled favored material ed up lanes I- taking tractor-trailers both — U.S. -, Harris, status. Scott straight 25 northbound headed us---- (2007). L.Ed.2d 686 I go- was scared that these tractors were the distillate— step The next examine (R. 396.) II ing to hit both of us.” Vol. if only to trial may proceed case way pushing Weigel out of the (1) a violation of facts demonstrate distilled trucks, tore the knee out of his Henderson (2) and the violation right a constitutional pants and took a “chunk out of hand.” [his] a constitu been established as has (R. 398.) II at Vol. Saucier, 201, at tional violation. 533 U.S. (2001). 2151 “Where the record Weigel, they When Henderson tackled not a rational taken a whole could lead as I- landed on east side of northbound [party claiming to for the trier fact find 25; Weigel got top of Henderson and for trial.” injury], genuine there no issue immediately to attempted weapon. take his Elec. Indus. Co. v. Zenith Ra Matsushita holster, placed Weigel unsnapped his 574, 587, 106 Corp., dio 475 U.S. S.Ct. to gun pull hands around the started (1986) 1348, (quotations L.Ed.2d 538 89 out re of the holster. When Henderson omitted). toas “[M]etaphysieal doubt by gun sponded pushing back into 586, enough. at facts” is not Id. material holster, Weigel fin grabbed Henderson’s 106 S.Ct. 1348. tried them from gers pry gun. to of meritorious motion for denial Weigel. Weigel imme Broad then tackled summary judgment inappropriate; as weapon, get diately reached for Broad’s improvi summary judgment much so as ting responded a hand on it. Broad dently end, must To that we look granted. pressing gun down his “as hard as [he] might undisputed they at the facts as rea (R. hands. II at could” with both Vol. in this sonably troopers very appear 352.) “ Although troopers outnumbered officers ‘[I]f brief and violent encounter. bystand help. called for Two Weigel disagree’ could competence of reasonable reluctant request. ers heard the One was challenged about the lawfulness of the con hearing to assist after one of duct, ‘qualified immunity should be ... (R. yell trying get my gun.” to Vol. “[h]e’s Wood, recognized.’” Gomes v. 614.) soul, Stickley Ill A (10th Cir.2006) intrepid at more 1122, (quoting Malley, (bless 1092). heart), 341, 106 describing the situation his 475 U.S. at S.Ct. All ran Wrestling,” as Star over “[l]ike Background I. Factual post assist, fence as bringing downed 644.) (R. laid are at facts out Ill driver weapon. Vol. they go. far as But the case is accurate as mirror passenger minivan whose with oth- better understood when enriched Weigel his advice. She struck asked wife’s undisputed er facts. here,” stay responded, way. You be “No (R. III felt it was safe. Vol. cause she chasing Weigel

When Henderson was 635.) 1-25, at two trae- across northbound saw (1999); immunity analysis, like other qualified L.Ed.2d 238 Daubert v. ous functions, Pharms., Inc., gatekeeping helps insure rational

Metrell Dow (1993). upon the law. Rigor- based rule of 125 L.Ed.2d 469 decisions Weigel extremely strong; Stickley sponse, Weigel’s Broad pulse checked Weigel having “superhuman described was unable detect one. (R. 652.) strength.” Vol. Ill A.M., At 8:00:51 ten minutes and nine- Henderson “stronger believed teen after reported seconds Broad his ve- than anybody [he ever wrestled had] (at hicle had been mph), rear-ended (R. 400.) II around with.”4 Vol. After three minutes and two seconds after cuffing Weigel, both were ex- reported diffused, the situation hausted; Henderson was “nauseous” from and a few seconds after feet were (R. 408.) overexertion. Vol. II at Even bound, Henderson returned his vehicle handcuffed, being after continued dispatch informed was in full witness, to struggle -leading another Win- — cardiac arrest. (or tie)

ters, attempt tie his feet together. Weigel positioned With on his II. Constitutional Violation stomach, restrained, hands and feet Unreasonable force are analyzed claims Broad Weigel’s upper body held down under the Fourth objective Amendment’s knees, his hands Henderson strad- and/or standard, reasonableness Graham Con dled Weigel’s Stickley buttocks and was on nor, 386, ‍​‌‌​​‌‌​‌​‌‌​‌​‌‌​​​‌‌‌​​‌​‌​‌​​‌​‌‌​​​​​​​​​‌‌‌‍395, 397, 1865, 490 U.S. 109 S.Ct. legs. his In spite of those Weig- restraints (1989), 104 L.Ed.2d 443 informed el still to managed pinch Henderson’s in- totality of the circumstances. Tennessee v. ner thighs groin area. Garner, 1, 8-9, 471 U.S. 85 During trip Henderson’s to patrol his (1985). L.Ed.2d 1 “Because the test of car Broad continued to restrain the hand- reasonableness under the Fourth Amend cuffed Weigel, applying pressure Weig- to ment capable is not precise definition or torso; upper Weigel’s el’s being feet were application, mechanical proper ... its ap by Stickley. held down spite In plication requires careful attention to the restraints, Weigel to struggle continued facts and particular circumstances of each fight. Eventually his feet were either case, including the severity of the crime at tied wrapped. or Ten to fifteen seconds issue, suspect whether the poses an imme bound,5 after feet were Broad diate threat safety quit noticed had officers or breathing. others, and whether actively he is resisting When Henderson to returned the imme- arrest attempting to evade arrest diate scene6 Broad told him had Graham, flight.” at U.S. stopped breathing. initially (citation 5.Ct. 1865 and quotations omit (after faking. believed he was When a few ted). “Although [any] attempt to craft an seconds) they back, rolled Weigel onto his easy-to-apply legal test in the Fourth he let large exhale, out a leading them to admirable, Amendment context is in believe he been holding had his breath. end picked Broad we must still up way some slosh our placed through snow аnd it ” eyes; Weigel his did not blink. After factbound morass of ‘reasonableness.’ repeating Scott, that action and receiving no re- at S.Ct. 1777-78.

4. high was a school wrestler. 6. Henderson and Broad both said Henderson only gone was for a few seconds. For our 5. Because arguably the record is debatable purpose disregard I testimony, here their (.seediscussion, 9-13) at about whether infra appears which to be at odds with the radio Weigel's actually feet were merely tied or traffic. cord, wrapped awith term I use the "bound.” event, any only his feet were bound for fifteen before stopped breathing. seconds summary particular generous of a use Estate its ‘reasonableness’

“The perspec judged from judgment analysis, force must be a matter I will discuss scene, on the reasonable officer tive of a moving my disagreement before hind vision of rather than with 20/20 majority opinion. Graham, sight.” of reasonable “The calculus S.Ct. 1865. concurring opinion A. for fact embody allowance ness must it Judge Seymour says was unreason- are forced to police officers often troopers7 for to apply able continue judgments circum split-second make —in after Weigel’s upper force torso his tense, uncertain, rap that are stances Stickley sitting hands were cuffed and was the amount of force idly evolving—about legs. on his On the other hand the concur- particular situation.” necessary that is in a says ring opinion Weigel’s constitutional 396-97, 109 Id. his rights legs were not violated before Weigel was a concedes (because his strength were bound safety from the his vehicle col- risk time behavior). said, That it concluded a past he was hand- Broad’s until lided with applied find “Broad jury pres- could But, his bound. legs cuffed and Weigel’s upper sure to Mr. back for as fa- light the facts most considering much as minutes after his feet were three the Fourth Weigel, says vorable Stickley lying bound” and across “for three violated when Amendment was (Hartz, legs. concurring.) J. The tipping subjected Mr. minutes constitutional viola- point this claimed knew un- to force that exquisitely fine, a requiring tion thus a him and that neсessary to restrain tedious, re- very exacting, although record have known officer would reasonable revealing. view. Such a review is significant danger asphyx- a presented at (Majority Op. iation and death.” feet, Winters, tying Weigel’s person 1153.) On disagree I all counts. they were never tied and the cord was said facts, Supreme as the these considered bound) for at (they around them were instructed, jury no has reasonable Court he Specifically most fifteen seconds. testi- employed was could conclude the force fied: unnecessary trooper or that reasonable Q. you So what did do? significant of a risk would be aware on the planted A. feet His were Weigel. death to tubing plastic I slid the under ground, so con- appropriately The fails his ... it’s legs, his down around ankles It totality of the circumstances. sider the you tubing. rigid. It is All have plastic troopers’ as- makes allowance for the no it under to do is slide under. Slide force required, of the amount of sessment the two form and started cross Graham, 396-97, at contrary to the officers knot that’s when one of improperly It assumes 1865. breathing. he had ceased indicated notice of these had sufficient Weigel’s alleged susceptibility to elapsed from Q. much time had [H]ow overemphasizes the

asphyxia. Finally, it plastic tubing un- you put that time training. troopers’ positional asphyxia you time heard the legs until the concurring inappropriately der his opinion departure. prior force lo his Actually only Trooper Henderson of unreasonable Broad. there is no claim left to warm his hands and Q. he say stopped breathing officers or [W]hen [Winters] comes to that something effect? ... strap what does he with it? do only A. It could [have] been matter just A. wraps He it several times of ten or 15 seconds. time it would lower legs. around his somebody take for to slide something Q. you Do know if he tied it in a knot under, up the pull other side and like that? anything ten, ten, clock, watching seconds max. A. I recall tying don’t him it at all. I just

think he went around and around Q. you ... several times. Did ever that get plastic tubing tied? (R. 356-57.) Vol. II A. ends, Never did. Crossed two So, рresent the three witnesses started to do and that’s they when scene, including actually the one who at- breathing. said he had ceased tempted Weigel’s feet, to tie unequivocally (R. added).) Vol. Ill at 625-26 (emphasis said feet Weigel’s tied. If never Stickley, the man who was restraining feet (by were considered bound being Weigel’s legs, testified as follows: wrapped tied),8 instead of the length of Q. you When assisting described time were bound before he stopped officers gentleman, you to cuff this said (and breathing atwas most fifteen seconds you up ended laying legs across his he was rolled over within fewa seconds and ... trying pull armhis over. Is after stopped breathing). your testimony? A. exactly Yeah. only contrary I’m know I evidence came from —I legs was at his point, some because Henderson. The correctly concurrence they wrapped the cable says around his initially testified legs. legs were tied before he left tend to his

hands. But doesn’t account for his other testimony from the same deposition. This Q. you The cable. Do how many recall is what he said: wrapped times it was around [Weigel’s] ankles? A. At point that I Trooper told Broad No, A. I don’t. hands, that I my couldn’t feel and that I Q. you Do think it was more than going run my grab to car and my once? gloves.

A. Yes. Q. Now, ... Weigel’s are Mr. legs tied

together point? at this Q. long How rope after the was tied A. Yes. around his feet did gentleman this con- struggle? tinue to A. Just a matter of seconds. Q. So may were his—this be asked and

(R. added).) Vol. Ill at (emphasis 647-48 answered. Were together his feet tied

Similarly, Broad testified: you when got up? 8. Wrapped insignificant versus tied is not an incapacitate his feet would be sufficient to point. Weigel’s strength demonstrated him. suggests combativeness a wrapping mere of

1161 claiming genuine no injury], there is issue When I came A. I remember. don’t Co., tied. that were for trial.” Elec. I noticed Matsushita Indus. back (quotations Vol, added).) (R. (emphasis II at omitted). “[M]etaphysical doubt thinks Henderson’s The concurrence enough. material is not Id. facts” testimony factual is- equivocal presents feet were tied— supports sue—-whether no more than fif- record qualified immunity and to defeat forcé, sufficient if it teen seconds of excessive actual- Its jury. conclusion send this case to law, ly was excessive. As a matter of (three minutes) time length about cannot be But ignoring unreasonable. bound is more Weigel’s feet were even and assuming Weigel’s record hands were jury find that says It “a could tenuous. nearly cuffed and bound for feet three pressure to Mr. Trooper applied Broad minutes, used would still the force be rea- for as much as three Weigel’s upper back sonable under these circumstances. (Su- after his feet bound.” minutes pra.) only support evidence B. Totality the circumstances of Henderson’s statement is a combination segmented The district court case this testimony (Weigel’s feet were equivocal (1) into two events: the troopers’ discrete car) for his and an infer- tied when he left attempts get Weigel under cul- control suggest- ence from the radio traffic drawn down, minating drag fight in a knock out ing the time between the situation elapsed (seven (2) minutes) and the actual restraint and the cardiac arrest report stabilized (three minutes). analyzed It then each sec- report three minutes and two segment separately. does is specifically onds.9 The time inference segmentation the same. But facts refuted two on scene witnesses who analysis conquer” of “divide and a form breathing fif- at most Weigel stopped said Arvizu, decried States v. United (Winters) or a seconds teen seconds few 266, 274, 122 151 L.Ed.2d U.S. feet were If (Stickley) after his bound. (2002) (“The court’s evaluation [circuit] record is that state of the sufficient rejection of seven of the listed factors to defeat create a sufficient issue fact in isolation from each other does not take case summary judgment represents this ‘totality into account the circum- in Rule change practice. sea stances,’ have as our cases understood conflicting statements do not Henderson’s phrase.”).10 fact, amount issue of material genuine approach The district court’s makes no contrary to the state- particularly when troopers’ high level of allowance for the participating ments of two witnesses. See Expecting a Scott, and exhaustion. excitement at 1776. the rec- 127 S.Ct. “Where response appropriate rational in less could and ord taken as a whole not lead who find for than three minutes from one has had [party rational trier of fact to the report. elapsed the time Assuming 9. Henderson made the radio re- cardiac arrest (he so) ports doing the considerably doesn’t remember than min- had to be less three them, elapsed time between three minutes utes. seconds, the it took for two included time patrol car him to walk from his to the scene case, Arvizu, discussing was a criminal (about feel), twenty time it the took for the analysis. totality Its suspicion reasonable Weigel determine whether to discussion, however, the would circumstances him, over, (monitor breathing put roll him Garner, applicable seem to here. 471 U.S. be etc.) eyes, and the for snow in his time it took 8, 105 at S.Ct. 1694. his Henderson to return to vehicle and radio violent, fighting. virtually breathing just recover from a he was didn’t no time to We (R. anything.” have think potentially threatening struggle life is it- time to about 378.) agreed. It Vol. II at self unreasonable. would have been folly given Broad had for to assume global A must also account for approach up fight simply struggle the because his danger. determining inherent “In the rea- waned11 or to assume restraints would in which a sonableness of the manner sei- or contain another prevent sufficient to effected, zure is must balance the na- we if violent outburst rolled on quality ture and of the intrusion on the permitted up. or to sit Prudence his side individual’s Fourth Amendment interests approach. would demand a more cautious against governmen- importance Momentarily refusing relinquish to a hard alleged justify tal interests the intru- not a If upper won hand was mistake. it Scott, sion.” at (quotations 127 S.Ct. were, it unless troopers’ is excusable omitted). so, may In we doing consider troop- conduct was unreasonable.12 The risk, at placed the number of lives conduct ers’ was not unreasonable consid- whom, culpability as well аs the relative brief, ering all of the facts this violent count, Id. From my the actors. fast-paced episode. placed danger troopers’ lives least responded during

One of the witnesses who to four times the ten-minute encoun- (1) troopers’ help rear-ending testified ter: Broad’s vehicle at calls (2) fast;” “very just mph; “it running entire event was from Henderson across continual” and described the situation as 1-25 with ap- two tractor-trailer trucks (R. 648-49.) (3) Ill proaching; pulling “like a movie.” Vol. almost Henderson’s (4) gun holster; luxury trying get did not have the from its fact, gun. calm reflection. Broad endangered testified he Broad’s He also using pepper spray public, did not think of lives of or two members of as well hand, baton because he “didn’t have as his troop- time to own. On the other restrained; think about stuff like that ...” ers’ appropriately and he acts were “[njever they Weigel, had time” to consider calling for did not kick utilize their ba- (R. 359.) backup. Vol. II at tons or pepper spray, weap- He also draw their Rather, stated he did have time to ons during not evaluate the encounter. (1) Weigel’s “[every- mental state because tended needs after his colli- (2) thing just Broad; happened quickly.... too sion with warned him of the (3) [Weigel] minivan; ran ... approaching [F]rom moment called for an am- quit ... to the time that he bulance hit [Henderson] after he was the minivan Rettele, County, 11. Even a casual observer Middle Eastern also L.A. Cal. v. politics recognizes (2007) "cease fire” seldom (per 167 L.Ed.2d 974 anything capitulation has do or will- curiam) (holding executing actions in officers' ingness negotiate; more often than objectively search warrant at a house reason- just ploy a convenient to rest and re-arm. able where officers ordered residents (who race were of a different than the sus- by "The Fourth Amendment is not violated 12. unclothed) pects and of their bed out and held cause, probable an arrest based on even gun point slightly them at more for than two arrested, though wrong person the Hill v. dress; allowing minutes before them to 797, 1106, California, 91 401 U.S. S.Ct 28 officers, safety, in the of their acted interest (1971), by L.Ed.2d 484 nor mistaken exe- reasonably securing in first the room and wrong cution of a valid warrant search ensuring persons nearby were Garrison, 79, other not be- premises, Maryland v. 480 U.S. (1987).” allowing fore to 107 S.Ct. the residents retrieve their 94 L.Ed.2d Gra- ham, 1865; clothes). 490 U.S. at see circumstances) Weigel presented a risk by (4) danger in their lives mirror; placed him under con- justify keeping oncoming of sufficient way him out of pushing Despite being (5) by him into trol continued restraint. to take traffic; attempted Stickley, safety, troopers and by his own restrained both for custody, partially use of re- pinch and the able to Henderson’s wrestling Weigel moves was basic (6) left devices; never Weigel agreed And while when groin. straint analysis The cost-benefit struggling be- “[s]top unmonitored. Broad told him to troopers even of the clearly tips in favor doing any good,” him cause it wasn’t (R. 327.) in death. it resulted though II at struggle. Vol. continued to fight was over suggest facts do not quickly or too act too officers Sometimes or, a reasonable officer pertinent, more creating an emer- thereby aggressively, it was over. think would to one.13 responding rather than gency troopers to these danger Not here. struggle while Weigel continued Since and immedi- was real others possibly and restrained lying face down alone, Weigel, ate, palpable; almost Stickley, it would be reason- troopers the cause. to conclude he would able for the if turned on his side or fight resume the perspective

C. Officer he could from which up positions sat — for the majority makes no allowance effectively, particularly before fight more amount of of the troopers’ assessment Indeed, tied.14 legs were in for caution the need required or force testified, up, Weigel once sat Graham, force, contrary to relaxing the or kicked or head-butted Broad could have 396-97, It is 109 S.Ct. 1865. spitting to that Add witnesses. serenity of and from the easy hindsight in whether it was uncertain biting. Because conclude a hiatus chambers to judge’s resist, it was would continue had danger passed struggle meant keep him re- for Broad to reasonable adequate; plaсe or the restraints minutes couple face down for strained combatants, whose easy for the it is not so Rettele, 127 than take the risk. See rather respect. required are we assessment (considering the fact officers at 1993 any longer than residents did not restrain whether the must consider We safety in conclud- their necessary to secure reasonably con- could fight in the engaged objectively rea- actions were ing of the officers’ assessment (respecting their clude attempting stop following him him and of an officer’s use reasonableness 13. The cover). approach is taking "This rather than only on whether the officer depends not force ‘totality application simply specific danger precise moment he used at the approach inherent in the circumstances’ prior whether the officer's but also on force stan- reasonableness Amendment's precipitated Fourth and deliberate conduct reckless Medina, Here events, dard.” creating for the need exacerbated reactive, provocative. not See, troopers’ acts were City e.g., Lake Jiron such force. aggression cannot be ex- Cir.2004) Weigel's unprovoked wood, F.3d must be minimized. cused and unreasonably create (holding officer did not by attempting to victim to shoot armed need Stickley was matter that it should not 14. And bedroom instead victim out of the coax Turning over or Weigel’s legs. left waiting backup; [the officer] "[h]ad tied bedroom, risked[, his feet were allowing to sit before him inter in the she victim] [the safety quo. Broad's change alia,] the status agitated would escape an armed and credited, Medina, if reasonable.1 must be assessment public....”); suspect into the reason there is no the circumstances Given (concluding did not un officers F.3d at 1132 guessing. ‍​‌‌​​‌‌​‌​‌‌​‌​‌‌​​​‌‌‌​​‌​‌​‌​​‌​‌‌​​​​​​​​​‌‌‌‍second victim reasonably need to shoot armed create 1164 Scott, (because

sonable); way they 127 S.Ct. at 1778 were. I could not feel them and the one bleeding it was uncertain whether was all over. ceasing pur- suspect’s Q. suit of the vehicle would elimi- you You said that felt confident that risk, police nate the situation could be required were not controlled. hoped “have taken chance and for the A. I felt leaving confident Mr. Weigel best”). in Trooper Broad’s custody with all the standing go- witnesses around that were Weigel Henderson was asked if un- was ing help earlier, yes. us der control he when left to warm his (R. 426.) II Vol. Likewise Broad was hands. He said: I get my “When left to asked, Trooper “When Henderson left to (R. gloves, ... he resisting.” was still Vol. go get gloves, his you comfortable 425.)15 II at There follow-up ques- was a you could retain control over Mr. tion, ... there a danger “[Wlas still to Mr. (R. 362.) Weigel?” Vol. II at Broad an- Trooper or point?” Broad at that swered, mean, “I I assume so. he was still (R. 425.) answered, II at Vol. struggling. But point at that I keep- (R. 425.) Wes.” II questions Vol. (R. 362.) ing him down.” Vol. II at continued: In spite testimony of that the district Q. you Are trained to leave a situation said, court easily “[I]t inferred that when posing someone is a threat to head Trooper Henderson would not have left

butt or kick get up or and is a danger to Trooper Broad thought Weigel had he still those around him? posed (R. a credible threat safety.” his A: I felt confident that the people 718.) that Vol. Ill at I beg to differ. The only were there could control it because I felt thing to reasonably be inferred is that I my was no use with hands the when Henderson went to patrol vehicle witness, Every including troopers, tes if ... against [t]he statement is party offered (even tified struggle statement) continued to party's after and is ... own While scene) Henderson, technically Henderson left the immediate an until he admission However, stopped breathing. statement is little highway pa impeachment more than investigator trol and therefore insufficient to interviewed Henderson establish factu- after Johnson, dispute.” al See McMillian v. According investigator's the incident. 1573, (11th Cir.1996); F.3d available, preceding to the time posed manageable the and Weigel he concluded (2) (1) handcuffed, events, danger precipitating presented he was the threat because (3) alternatives). legs, other civilians Stickley was on and the available None of perhаps and most im help, were to present there the factors are here. The troop- (4) face Broad Weigel down portant reflect, had the ers insufficient time to risk leverage was in because could control positional asphyxia factors for were not necessary. might restraint as and, been, apparent they troopers’ had the con assessment was one of Henderson’s response was reasonable. if danger the status

tinuing but tolerable bottom, At it comes down to weighing in quo quo maintained. status was the risk to Weigel against other factors —a ability Weigel to cluded Broad’s control non-exhaustive list would include ur- the place. the restraints Had because of situation, gency of the risk to position making it Weigel been moved to others, troopers, the risk to the alterna- fight, easier him to resume the Broad’s for available, tives and the relative culpability compromised, in control have been would calmly of the actors. can reflect upon We Placing ourselves creasing risk. matters, troopers those had but the to do officer on the position of a reasonable analysis lightning at speed cost-benefit scene, the record does demonstrate under adverse conditions. As Graham in- legitimate quarrel reason to with such structs, analysis our reasonableness must Certainly there no reason assessment. troopers’ make allowance for the condition contrary for a concoct a view.16 court to perspective they balanced risk Scott, 1779; Graham, at against to others themselves and risk 396-97, 109 at S.Ct. 1865. Weigel. to D. Apparent susceptibility position- to Danger at the Weigel looks risk of asphyxia

al by the positional asphyxia presented meth- employed. ods Medical and academic pro- critical. The issue is not Focus is whether disagree applying fessionals about Weigel failed to whether the roll weight to the back of a face down individu- resulting on his in his death due to side likely al back is handcuffed behind his positional The constitutional is- asphyxia. asphyxia cause and death. The literature (1) cir- sue is reasonableness —whether sudden-in-custody deaths from posi- states sufficient gave cumstances “infrequent” asphyxia tional are “rare” and (2) reflect, they unreasonably time to failed occur, risk available) and when do certain fac- (in the short time recognize (1) are usually present: obesity tors for asphyxia, was risk (beer (2) (3) protruded belly), abdomen en- responded they properly underlying recognizable larged due heart or other health (giving risk consideration Sallenger two suggests officers] bedroom other [the relies on v. Oakes as [Sallenger] leaving had over at that suggesting the immedi- sufficient control Henderson’s additional [officers'] ate suf- time render scene demonstrates was under control, unnecessary, making punches unnecessary and blows there- ficient fore, Sallenger at 740. hold him unreasonable.” Id. Broad to continue to down. (7th Cir.2007). inapposite. was under Sallenger, The reason F.3d 731 Henderson left control the time scene Circuit concluded fact one Seventh commanding was in a pepper the room to because Broad three officers left wash Therefore, punches question position. unlike the spray eyes of fact from his “raised unnecessary Sallenger degree two blows in which [the as to the of control other restraining [Sallenger] Sallenger, Broad’s force he was control had over after officers] ability necessary. to leave the [The officer’s] handcuffed. (3) illness, problems, particular, ting mental Broad’s vehicle would not have led the manic depression agitation, (or officer) and extreme troopers any reasonable to be- (4) paranoia, drug hallucinations and intoxicated, lieve he was high drugs or (5) intoxication, alcohol cocaine-in- and/or suffering from a mental illness or excited delirium, duced bizarre behavior/excited delirium —he was able to decline the need (6) (R. struggle police. a violent with ambulance, for an troopers’ answer the 202.) 109,124, Vol. I at questions accident, concerning the agree to sobriety Both the administration of expert opinions testing, sides offered fol- as any whether had of the risk fac- low Henderson to the side of 1-25 and run opinions tors. To the extent those differ it across 1-25. is immaterial because the issue is not only apparent risk factor was the Weigel actually

whether had the risk fac- struggle. violent The literature on the factors, tors but whether the risk if pres- subject police and the practices Estate’s ent, were or should have been apparent to expert both acknowledge struggle fac- the troopers during fight their Weig- with may may tor or not make an individual el.17 Id. at 1188. more vulnerable positional asphyxia. exception With one none of the six risk I Without more do not see something how objectively apparent factors were during “may may not” be a factor can be obese, the encounter. was not did apparent. abdomen, not a protruded have and had no observable health conditions. There was E. Training

no evidence reasonably which would have In some detail the majority points to the led the mentally to believe he was positional asphyxia training ill or in a drug-induced state of bizarre received. upon It relies that training to delirium, given that behavior/excited conclude “a reasonable [trained] officer troopers were engaged during otherwise would have pressure known that this brief encounter. troop- And while the placed Weigel’s upper ers on Mr. they believed back as he detected the smell of lay breath, alcohol on on his stomach they created a significant observed no other signs asphyxiation risk of intoxication such as and death. ap- His watery eyes, intoxication, bloodshot or speech parent behavior, slurred bizarre or stumbling. Weigel’s behavior after hit- vigorous struggle made him a strong can- police EDS, 17. The practices Estate’s expert, D.P. with which involves the sudden death of Blaricom, individual, opined Weigel Van "clearly episode dis- after an of excited de- played person characteristics of a lirium which strug- risk is terminated a violent restraint, аsphyxia” gle physical restraint because use of "[h]e was en- in which the gaged autopsy in bizarre fails to reveal behavior that is evidence of associated sufficient trauma or capacity,” explain natural disease engaged diminished "[h]e in a death. prolonged physical struggle during ... which displayed time he strength,” abnormal opinions were the result of an "after- struggle "he continued to suddenly until he opposed the-fact” assessment partici- to a (R. quit 290.) breathing.” Vol. II at Defen- Indeed, pant's real during time assessment. Maio, expert, dants’ Dr. opined Vincent Di encounter, Henderson and Broad could asphyxia did not die but from not Weigel’s prior have been psy- aware of (EDS) because, Syndrome Excited Delirium episode, chotic nor did know he would alia, Weigel inter symptoms demonstrated resuscitation, respond what the results psychotic episode in the preceding week autopsy of his would be or that he would death, Weigel respond failed to to resuscita- struggle continue simply stopped until he tion, and the facts of this case breathing. were consistent (Ma- it is asphyxiation.” very materials concede difficult to didate 1152.) distinguish between the often the jority Op. at two and suspect symptoms will have no clear be- training troopers received did the quits troop- fore he simply breathing. The that use of the establish the brief not trained, ers the were also consistent with a employed presented substan- restraints literature, presence the risk of certain They received Weigel. materi- tial risk the factors increases risk of sudden-in- presentations and viewed videos als custody If by positional asphyxia. death in-custody pertaining to death sudden multiple present, are risk factors the train- Some of these positional asphyxia. from ing recognize that whether offi- materials an informed them that individual materials implement cers can recommended the breathing trouble lying on his stomach has practices cir- depends particular the to his back and pressure applied when cumstances.18 off his they get suspect should the stomach position as on to his side or in a seated training in- Viewing the materials as an suspect the is handcuffed. Howev- soon as whole, tegrated troopers warn the er, place materials informed them to other the risk from in-custody of sudden death position in a that allows him to suspect the healthy positional asphyxia risk —little safety permits” or “as breathe “as soon as males, general pop- adult some risk the possible, much as and AS SOON AS POS- ulation greater risk to those with di- SIBLE, subject heavy (identified relieve the capacity by pres- minished used for or soon as weight factors). “[a]s control” ence of risk v. specific See Cruz possible, prone of the get person posi- out Laramie, 1183, City Wyo., 239 F.3d side, tion, in upright Cir.2001). or seated (10th his/her 1188-89 was a 202.) (R. 197, position.” Vol. I at As healthy, adult male. None of the risk testified, use of instructor troopers’ force exception factors with violent safety permits,” what “as soon as “as soon struggle apparent troopers. possible” much as possible” as “as Thus, relevant, training to the extent judgment mean is call dictated troopers consistently acted with it.19 presented. circumstances F. Conclusion not to were trained misin- suspect’s struggle for No violation occurred

terpret oxygen constitutional objec- training troopers’ But here. actions were continued resistance. 1151, (10th Cir.2005) ("Even training F.3d if In the video referenced 1159-60 18. narrator, majority, the the Chief Medical Ex- that Officer had violated were clear Sholtis City, expressly New aminer for York acknowl- [Albuquerque Department Police standard edges from the he has never had to outset operating procedures], that violation would violently struggling, and restrain a subdue by proba- supported an arrest transform emotionally disturbed individual. seizure.”); ble into an unconstitutional cause Keenan, 1171, Herring v. F.3d disagree any relevancy training I has Cir.2000) ("[W]ithout stronger indication See, qualified immunity analysis. e.g., probation courts that a reasonable Scherer, Davis v. 194 & n. position officer in Keenan’s would have (1984) ("Offi- L.Ed.2d 139 Herring’s violating con- known that she for cials sued constitutional violations dо not status, by disclosing rights his HIV stitutional merely qualified immunity lose their because poli- simply violating rather internal than statutory their conduct violates some or ad- cy, say we Her- cannot Keenan violated provision ministrative ... unless that statute right ring’s clearly established constitutional regulation provides provi- or the basis Sholtis, upon.”); Tanberg privacy.”). sion sued tively totality reasonable under the Supreme from the Court and this Court jury circumstances and no reasonable establish explain pro- those norms and could conclude otherwise. The guidance vide in a particular concrete and ought put expense not be and incon- way, stating useful principles capable of venience of a trial. being easily applied by understood and those in jurisprudence. not well schooled Clearly

III. Established Law guidance That comes from the ap- studied I am particularly concerned with the plication of principles constitutional de- majority’s clearly cavalier treatment of es- range rived from a wide ought of cases. It incorporate tablished law. It seems to scrapped not be in jury favor of ad hoc law, concepts from tort which looks for a guided only by decisions abstract or theo- duty imposes and a standard of care. retical Stripping away qual- formulations. “ ‘[Djut/ question is a of whether the de- immunity ified gar- reduces this case to a any fendant obligation is under for the variety den tort. particular benefit of the plaintiff; and in The district court determined troop cases, negligence duty always is qualified ers were entitled to immunity same—to conform to legal standard of because the prohibiting law their conduct reasonable conduct in light ap- of the clearly was not established the time of parent do, risk. What the defendant must so, doing the incident. it compared the do, or must not question is a of the stan- facts of this case with City Cruz v. dard of required satisfy conduct Laramie, (10th Wyo., 239 F.3d 1183 Cir. Page duty.” W. al., Keeton et Prosser & 2001). Cruz, person of obvious diminish § Keeton on the Law of Torts capacity,20 ed resisted arrest but did not ed.1984). Typically that standard of care fight try start а to take the officers’ open pru- ended —what a reasonable and And, weapons. subjected Cruz was to the person dent would do under the same or most extreme form of re similar Myriad circumstances. factors hog-tying. Due to the substantial upon bear what straint — might expected of the case, differences between Cruz and this hypothetical prudent reasonable and per- the district court concluded Cruz did not juries son. And given are wide in latitude fairly warn the troopers that their actions sorting them out. here were unlawful. qualified But immunity § in 1983 cases Although Cruz, narrows the discusses focus. It it government shields ultimately liability, ignores actors from the case’s they impact even if have clearly a plaintiffs violated established rights, retreating federal law unless those highest actors have fair warning, generality, embodied level of simply saying in law, established that their con- the Fourth prohibits Amendment unrea- duct violates established norms. Cases sonable seizures.21 It relies on troop- say 20. To capacity Cruz's diminished was ob- Fourth require- Amendment's reasonableness vious is running understatement. He was ment have been written in vain. The rule apartment around naked outside of an build- from case law that warrantless searches must down, ing, jumping up kicking legs and upon probable be based cause is of no mo- air, yelling continuously swarming about judicially ment. Nor is the presump- created insects, swatting and objects. invisible tion that a search without a warrant is un- Cruz, 239 F.3d at 1189. exceptions reasonable. Nor are the to that presumption. Interesting. Apparently the reams of material inter- preting explaining parameters of the arrived, ran and hid in the Haugen seau they have should training to conclude ers’ surrounding neighborhood. risk of death Brosseau substantial aware been employed. assistance; the restraints respond- called for two officers from other circuits cases Finally, says Haugen, searched for ed. While today as it has the law clearly established and Atwood officers instructed Tamburello pressure putting substantial announced vehicle which to remain in Tamburello’s it— suspect while suspect’s back parked in the street front of the being after sub- position prone a facedown They Haugen’s also directed driveway. excessive incapacitated is dued and/or young her girlfriend, present who was majority’s ap- with the disagree I force. in the stay parked in her car daughter, reasoning. aspects all of its proach Haugen eventually found driveway. prohi- general pursuit. Fourth Amendment’s in a foot engaged Brosseau does not seizures of unreasonable driveway got bition into a Haugen ran to the conduct. warning prohibited provide fair believed he was parked Jeep. Brosseau Cruz, authority, can- only relevant case a so she drew her going weapon to retrieve such reasonably read to contain not Haugen it at and ordered weapon, pointed it an- Instead generalizations. sweeping or- Jeep. Despite repeated him out of the troop- holding, limited which nounces a being vehicle and struck ders to leave the majority’s The clearly did not violate. ers gun, of Brosseau’s with the butt and barrel irrelevant, trooper training discussion of As the Haugen Jeep engine. started the contrary, the assuming, arguendo, but move, fired one Jeep began to Brosseau stray from their teach- did not side through the rear of the driver’s shot from Finally, the mixed decisions ings. window, hitting Haugen in the back. guidance. no coherent provide other courts concluded Bros- Appeals The Court of immunity qualified not seau was entitled and Cruz The Fourth Amendment A. clearly es- and Gamer because Graham Laramie, Wyo. City v. of her actions. tablished the unlawfulness in this case of the consti analysis [O]ur Supreme 596. The Id. at restraint of Mr. tutionality of the reversed, court holding appellate Court compare the facts require us to does and Gamer: relying erred in Graham It is allegations here. of Cruz Gamer, following the lead Graham general principles. on more based text, are Amendment’s Fourth prohibits unreason Fourth Amendment generality. Of high at a level cast it re do not think able seizures. We course, case, stan- in these an obvious identical a court decision with quires answer, clearly can establish dards clearly that it is unrea facts establish case body of relevant even without deadly force when sonable to use is far from present case restrain a law. totally unnecessary to force is officers, and Garner where Graham public, obvious one suspect protect or to for decision. suspect himself. alone offer a basis or the 1154.) whether, at the ask (Majority Op. at therefore turn to We actions, clearly it was time of Brosseau’s differently. Supreme Court sees particularized more [a] established Brosseau Haugen, officer Brosseau Haugen’s violating that she was sense fight of a between responded report to a ... right [in] Amendment Fourth in a resi- and Atwood Haugen, Tamburello whether Brosseau confronted: situation driveway. U.S. dential felon, avoid- (2004). set on a disturbed Bros- to shoot 596, 160 L.Ed.2d 583 When ing capture through flight, back, vehicular hands are cuffed behind his his feet persons when the immediate area are together, are bound up drawn behind his at from that flight. risk back and attached to the handcuffs. It 199-200, (citations results in his being Id. at ankles bound to his 125 S.Ct. 596 omitted). quotations handcuffed wrists behind his back with separation. twelve inches or less of AId. distinguished This case cannot be technique similar is referred to as hob- appropriate posi- Brosseau. The use of bling. only Id. at 1188 n. 14. The brief, differ- tional restraints violent situation ence between the two endangering techniques officers and others is the would cry particularized ‍​‌‌​​‌‌​‌​‌‌​‌​‌‌​​​‌‌‌​​‌​‌​‌​​‌​‌‌​​​​​​​​​‌‌‌‍seem to out for distance warning between ankles and handcuffed felon, shooting wrists; no less than “a disturbed separation of twelve inches or avoiding capture set on through vehicular hog-tie, less is a a greater distance is a flight, persons when in the immediate area hobble. Id. The trial court in Cruz found flight.” are risk from that Id. at less, distance be twelve inches or Brosseau, 125 S.Ct. 596. Like this case fact we credited and used to focus our present does not an obvious constitutional analysis only hog-tie technique. on the Id. violation. The Fourth gen- Amendment’s at 1188. We relied on literature and cases prohibition eral against unreasonable sei- specifically dealing hog-ties. Id. zures is “cast at high general- too a level of 1188-89. And our decision reflected our ity” establish strip the law. To narrow focus: ques- “We do not reach the these qualified immunity, hog-tie tion whether all restraints consti- “clearly law must have been established in se, a tute constitutional per violation but a particularized more in sense” December may hold that officers apply not this tech- 2002. nique when an individual’s diminished ca- The law at the time of the incident must pacity apparent.” Id. at (emphasis provided have warning” “fair that added). methods the employed were un- expressly Cruz we did not forbid all Pelzer, constitutional. Hope v. hog-ties let alone the less restrictive hob- 730, 741, 153 L.Ed.2d 666 ble. Our discussion any would lead reader (2002). warning Fair primarily, comes but to think significant the distinction and the exclusively, not from the in holdings prior reach of the gives decision limited. It no jurisdiction. cases in the relevant Medina warning that it expansively should be read City Denver, County & 960 F.2d of to address positional lesser forms of re- (10th Cir.1992) (“Ordinarily, in order case; straint. This is a hog-tie not it is clearly established, the law to be there not even a attempt hobble case. No must a Supreme be Court or Tenth Circuit pull Weigel’s made to ankles behind him in point, decision on clearly or the established any way, let tie alone them to his hand- weight authority of from other courts must cuffed wrists. have found the law to plaintiff be as the maintains.”). majority Hope relies on for the proposition prior that a case need not ad- Supreme

No directly Court case is very question dress the action in in order point only and the relevant opinion from clearly establish the law. (Majority However, this circuit is Cruz. its ex- 1154.) However, Op. at press prior terms case with applies only Cruz hog-tying fundamentally apparent provides individuals with similar facts diminished ca- “es- pacity. 239 hog-tie pecially strong F.3d 1188. A support is a for a conclusion restraint technique whereby a person’s the law is established.” principle Even if a broader can be ex- 741, 122 2508.22 U.S. Hope, 536 pun- Hope majority’s reading dealt with tracted Cruz significant It is and after the fact imposed after hog-tie may ishment A exceeds elastic limits. be In such for reflection.23 opportunity restraint, every positional subset of but law needs guiding case circumstances restraint is not form ab- degree of higher specific; less hog-tie.24 of a equivalent warning in a fair may provide straction says panel the Cruz discussed the dan- This environment. highly deliberative gers custody syndrome,” of “sudden death involving dy- opposite, polar is the case “positional asphyxiation” general, dif- decision-making under the most namic pronouncements on the specific and made useful to To be ficult of circumstances. 1152.) (Majority Op. at Not so. risks. (or fight) in a in the field officers said: “Given the extent of the case Cruz clear; crisp must be warning imparted law, ‘legally-related’ and the literature dog” A case simple. “spotted specific personnel to law enforcement available mus- warning, generalized provides that dangers involved in detailing the serious carefully have judges not. Three ings do restraint, it is application hog-tie read, parsed, language Cruz. even that officers should use much apparent and the benefit luxury of time With in applying hog-tie caution restraint.” counsel, we argument from briefing and added). (emphasis at 1189 Cruz dramatically different views away take only very specific technique considered troopers did not have holding. The its pro- (hog-tie). generalized There was no aftermath of a luxury, yet even positional asphyxia, fact nouncement hog-tying knew desperate fight suggests limi- language opinion anything it or and did not do prohibited tation, Enough about expansion.25 have coaxed expect it. To them to like contains an even more hog-ties. Cruz majority’s anything akin to the from Cruz holding today re- telling limitation: “Our holding is contrived. Supreme Court decid- to relieve himself. Supreme Court cases constru the recent If Eighth punishment violated the ing "clearly Federal law” in ed the established Penalty Act Death and then considered whether and Effective Amendment Antiterrorism (AEDPA) any provide warning practice indica was context had fair of 1996 officers 70, Musladin, tion, 127 Carey v. 549 U.S. it was an prohibited. see The Court concluded (2006); 649, Wright v. cruelty 166 L.Ed.2d 482 "The inherent obvious case: obvious 743, 746, Patten, - U.S. --, respon- 128 S.Ct. provided Van practice should have in this curiam), (2008) (per some alleged L.Ed.2d 583 169 that their con- dents with some notice holdings required. thing on-point Hope's protection akin to constitutional duct violated Hatch, F.3d 1015 Hope House v. punishment. See against cruel unusual and DuBois, Cir.2008); v. see also O’Brien way to human treated in a antithetical was Cir.1998) (1st (comparing not dignity.... This wanton treatment was qualified immunity’s clearly es and AEDPA prior necessity, punishment but as for done of concluding requirement "a rule and tablished Hope, conduct.” quite precedent as as clear or a need not be added). (emphasis factually specific review under the to rate (all syllogism men are mortal 24. A deductive [clearly 'contrary law]' established Federal ‘ man; therefore, Aristotle is and Aristotle is mortal) to hold a as it must be [the AEDPA] clause of syllogism an inductive works where damages [§ ] liable for under state actor therefore, female; (Liz red hair and she is has 1983”), by grounds McCam on other overruled female) not. are does all redheads Hall, Cir.2002) (en (1st bridge F.3d 24 banc). generalized state- contained Had Cruz asphyxia they would work, about ments Hope punishment for failure to 23. As Why the law enforcement should be dicta. hitching post for seven was handcuffed to a hours, sun, by pronouncement no community bound be stripped his shirt in the hot obligated follow? opportunity court is deprived an of water and denied Moreover, apparent agreed. lates to individuals with an and Weigel’s behavior af- Cruz, capacity.”26 hitting discernible diminished ter Broad’s vehicle was inconsistent emotionally 239 F.3d at 1188. We need to see if this with an disturbed individual or require- case fits within that additional one on drugs intoxicated or alcohol and ment. sign there was no he was hallucinating or lucid, suffering paranoia. He was strong, healthy, awas adult responded understood the capacity male.27 To the extent his was queries. their ie., apparent, diminished it not understood; “readily requires clear or obvious.” Candor an admission. Those n. majority Weigel’s sitting jury fact, See 26. The states in a years box after the intoxication, behavior, “apparent might bizarre majority suggests, see events as the vigorous struggle made him strong rather than as I see But them. that is not (to candidate positional asphyxiation.” the test. The risk factors the extent 15.) existed) (Majority Op. they actually behavior must be considered may have been bizarre as measured trooper as reasonable would per- have interaction, ordinary but not for an processed indi- ceived and them at the time. attempting vidual flight. Weigel’s possible to avoid arrest possible intoxication and When could not or pro- would not suicidal ideation occurred before license, duce his driver’s the troopers fight. rea- started the For the three minutes sonably may there following fight believed have been a when the violence had Estate) he, warrant for his arrest or driving (according any abated rea- with a suspended explana- bruised, license. That bleeding sonable but and exhaust- tion for his behavior is at least as cogent surely ed officer would remember Weigel’s as the experts’ determination, theories and under cir- strength a fight nearly lost, likely cumstances one far more weapons nearly come to appropriated, mind. While the thought Weigel request onlookers, need to help from may have been hoary intoxicated based on the face of death. Such an officer (a smell of calling his breath factor surely guided by for would the need to investigation, further jump rather than a dangerous maintain control of a situation. conclusions), (and signs noticed no other ought Such officer would not intoxication, to) let required alone “severe” intoxi- be recall and evaluate a cata- cation, required by Cruz. 239 log F.3d at of risk positional asphyxia. factors for 1188. The Estate’s police practices expert expects too much of these opinion repeatedly any 26. The said di- apparent, delirium to be Cruz both discernible and capacity apparent. minished must be necessarily apparent, Break- it must be because that ing practice (and quote that in this one demanding the is the more standard that opinion inexplicably usage “apparent rather said is language consistent with the used ‘Apparent’ throughout "readily opinion). discernible.” the means seen; visible; understood; readily clear or obvious.” "perceptible, ‘Discernible’ means expert 27. The opin- record contained an Cruz by faculty the of vision upon study or the intellect.” concluding hog-tying ion based Heritage English positional asphyxia. does not result in Id. at Dictionary American (4th ed.2000). Significantly, Language, rejected opinion we the Online Edition Something merely capa- is discernible if it is study because healthy the focused on adult (as being upon inspection), ble of seen study close healthy males. Id. If a adult males is something apparent whereas if it is obvi- not relevant to those with risk factors for may being ous. It positional asphyxia, discernible without appar- then those without obvious, appar- but it must be ought obvious to be ent risk factors not be treated ifas language ent. Since the requires were at risk. Cruz & n. upon called jury No should be troopers. (2004) (using L.Ed.2d 1068 officer’s em- matters. about such speculate ployer’s guideline only internal to “under- Training

B. score” that officer was on notice of the must, like ev- “suggest officers unlawfulness of his conduct not to Law enforcement else, officer train- eryone obey deprived qualified the law and an official is mini- immunity that end. At a whenever necessary to he violates internal ing is Hope, see also mum, guideline”); behavioral at regarding instruction 536 U.S. 743-44, upon police (relying prison on imposed S.Ct. 2508 standards jurisdiction regulation placing requirements pu- in the relevant on the court decision is, by defi- required hitching post determining because nitive use of would be established). Here, nition, Beyond law. was clearly established law that, Cruz might include instruction conduct was well within the training troopers’ seeking any extension of it. practices, holding or best reasonable procedures guidelines useful to offi- impart nothing training skills and There was to under- effectively safely performing score. cers training may well reflect their duties. The vaguely These aware beyond about matters judgments value Cruz but were specifically not instructed But requires. law what established teachings Wyoming because the on its training, not the other law dictates officer already Highway prohibited Patrol

way around. Cruz28 troopers’ hog-tie, decided Cruz training equal alone cannot establish more than stan- training Because was law, training largely troopers’ dards. has used Supreme irrelevant. The Court jurisdictions C. Other way to under- training a limited officer Cruz is the seminal solitary authori- warning re- personalize the fair score Ramirez, Nevertheless, ty. majority relies on quirement. See Groh Highway says apparently was distributed state-wide from "was 28. The Cruz Cruz headquarters, specifi- did Wyoming Patrol’s Vincent not the extensive Law the reason for (WLEA) training cally than Agency recall its contents other [the Enforcement City against the of Lara- positional asphyxia.” Tenth Circuit found received] 1154-55.) "officers were liable for caus- (Majority Op. record mie because its does death, death, asphyxia ing positional related support not the assertion. Broad testified (Id. 484.) Cruz, Vincent further only "[vjaguely did of Mr. Cruz.” familiar” with decided, after it and testified that recall when he first learned of Cruz spoke it in Highway Patrol to him about refer- you point tell what of it is. "couldn't even However, hog-tying. hogtie because the basically we don't and I think ence I know (R. ¿lways officers Highway Patrol has trained its something to do with it.” that case has 366-67.) hog-tie, Patrol's train- only testimony Vincent said the not to Vol. II at ing change following None of did not provided about was that he Cruz. Cruz officer) majority's testimony asser- Trooper (training this establishes Vincent remembers apparently the reason posting He did not read it tion that in the office. Cruz Cruz asphyxia troopers’ training positional on entirely knew about it was it in- and all he Indeed, is belied at WLEA. the assertion in-custody Trooper Vincent volved an death. Johnson, testimony who in- concerning of Ernest only effect on the testified Cruz’s at the Wyoming Highway the use of force training provided by structed officers on Patrol, through Highway 1976 2001. He testified WLEA from not the WLEA. He stated the asphyxia began instructing posi- on specifically Patrol does not instruct 1996-1998, years between several asphyxia, training from the sometime tional comes prior decision. Although concerning to the a memorandum WLEA. Cruz 1174 Nashville, Inc.,

Champion continuing despite v. Outlook 380 to do so the fact his (6th 893, Cir.2004), back, F.3d 903 Drummond hands were cuffed behind his he was Anaheim, City v. ex rel. Drummond 343 repeatedly and he resisting cried out 1052, Cir.2003), F.3d 1061-62 and Gu- for air. The unreasonableness Antonio, v. F.3d City tierrez San (which troopers’ in actions this case I as- (5th Cir.1998), clearly establishing argument only) sume for was far from troopers’ the unlawfulness of the actions. Finally, Champion obvious. both jurisdictions Cases from other are relevant Drummond relied on cases which are only they point collectively if are on clearly distinguishable from the facts here. might weight we call the form what Both relied on Swans v. City cases authority. The cases miss the mark Lansing, F.Supp.2d mile. suffers from the same 632-34 Gutierrez (W.D.Mich.1998). hog-tie flaw as Cruz—it is a case. Gutier- Weigel, Unlike howev- apparent capac- rez also had an diminished er, multiple Swans suffered from risk fac- ity told one of the officers he had in-custody tors associated with sudden —he ingested glassy bad cocaine and he had i.e., positional asphyxia, death from he was eyes, speech slurred and walked unsteadi- weighed pounds 5'8" and officers ly, symptoms all of drug “classic use.” 139 mentally Moreover, knew he ill. expressly F.3d at 448. The court also placing case involved six officers their distinguished the facts of the case—the weight legs on Swans while his hands and transportation patrol of Gutierrez in a ve- restrained, leaving were him in motionless “rapidly evolving hicle—from a encounter cell for ten to twelve minutes and then potentially with a armed in suspect which him moving to a different cell—all due to quickly.” the officer must react Id. at 450. response the fact Swans said “no” in an Champion and Drummond cannot clear- officer’s command and struck an officer’s ly establish the lаw because face with his upon being brought foot decided after the incident in this case. See down. 800, 818, Fitzgerald, Harlow v. Hines, Similarly, Simpson relied (1982) 73 L.Ed.2d 396 upon by Champion and decided under the (holding law must be established at Fourteenth Amendment substantive due incident). the time of the To the extent standard, process ten applied officers force relying holdings to an inmate who refused to surrender these law clearly prohibit- cases—that the contraband and left him handcuffed and putting ed substantial significant pres- motionless in his cell. 903 suspect’s sure on a back F.2d 401- suspect while (5th Cir.1990). prone only is in a face-down position being po after Not were the incapacitated subdued constitutes lice officers’ far egregious actions more and/or force—its misplaced. excessive reliance is and the inmate’s actions calling for such provocative ease, force far less than this First, both cases relied on the officers’ the cause of the inmate’s death was un training. above, explained As an officer’s (i.e., clear asphyxia whether it was due to training (beyond explaining clearly estab- asphyxia neckhold or due law) officer lished analysis. is irrelevant chest). sitting on his Consequently, Second, upon Drummond relied the obvi- Simpson provided could not have ous unreasonableness of the officers’ ac- troopers fair warning briefly applying tions—the allegedly officers crushed pressure Drummond against ground by resisting to the torso of a placing but weight their on his neck and torso and restrained individual is unconstitutional.

1175 officers; Fifth mary judgment either upon relied The other cases also materi- reversed, Drummond are Champion concluding the officers’ Circuit and from this case ally distinguishable “objectively in conduct was reasonable provided not have could therefore dangerous situation that th[e] context their warning fair requisite troopers’ Gutierrez created....” Id. objectively unrea- in this case were actions Similarly, City in Fernandez v. Coo- City v. Cincinna- In Johnson sonable. per City, strenuously Fernandez resisted ti, obese, positive tested Johnson him and аttempts the officers’ to subdue de- agitated marijuana and suffered F.Supp.2d 207 1371 fled from them. lirium, factors for as- all risk (S.D.Fla.2002). 1017-18 F.Supp.2d caught 39 Once the officers phyxia. 1999). (S.D.Ohio Moreover, although the him, ac- up with Fernandez continued to of fact as questions there were court found tively being Eventually, resist restrained. failure to city was liable for to whether together the officers worked to hold him to train, it noted there was dis- adequately ground and cuff his hands and feet. parties’ experts on the between the pute him, Shortly Fernandez after cuffed in-custody death and of sudden causes stopped breathing. The court concluded in fact Johnson’s death was whether the officers did not use excessive force: And in Es- by the restraint used. caused restraint, prone pressure on the Buchanan, Bryant was Bryant v. tate of upper (presumably torso from one of the him officers rolled unconscious when the being pressed officer’s knees to [Fernan- stomach, him handcuffed and onto his back), handcuffing, struggle and dez’s] weight knees and on his chest. placed their (S.D.Ind.1995). ille- were all the result of [Fernandez’s] F.Supp. unconscious, was resist- gal, physical, prolonged was not he and resistance. manner, persistent ing a violent It of course an unfortunate occur- three applied for at most restraints rence, for a does sympathy plaintiff but minutes from the and he was not moved not transform law enforcement officials’ attack on Henderson. The locus of his objectively responses to a reasonable hardly the con- here was under situation situation into a constitutional vi- volatile troopers. trol of the. olation. being to the above cases addition 1379; Phillips v. d. at see also Estate of of oth- factually distinguishable, number Milwaukee, 586, 588-90, City prior to December 2002 er cases decided (7th Cir.1997) (finding no excessive 593-94 For in- reached a different conclusion. indi police force where restrained obese Tex., stance, Wagner Bay City, vidual, acting strangely and who had been Gutierrez, brother, plaintiffs was involved police, prone posi in a struggled had police. in an аltercation with the F.3d hands and feet restrained tion with his Cir.2000). altercation, During the though him constantly monitored even pepper him with sprayed the officers positional asphyxia); died of subsequently placed The officers him face down spray. County Diego, F.Supp. Price v. San eventually able to ground on the and were (S.D.Cal.1998) (recognizing 1234-40 so, doing him. one of the handcuff While concerning experts dispute between the placed officers his knee Gutierrez’s asphyxia hog-tying whether leads placed or back. The officers then neck force concluding officers used reasonable face and trans- patrol him in a car down face-down, him hog-tying Price placing jail, him to where he was found not ported after he pressure to his torso applying denied sum- breathing. The district court struggled grab with officers and tried to guns).

their

The caselaw from other circuits was con-

flicting in December 2002. There is ‍​‌‌​​‌‌​‌​‌‌​‌​‌‌​​​‌‌‌​​‌​‌​‌​​‌​‌‌​​​​​​​​​‌‌‌‍no consensus, let alone a clear

identifiable

weight authority. They could not have

provided warning troopers. fair to these Mud, v. F.2d

Jantz

Cir.1992) (stating general “the state of ... enough

confusion the law cast[s] any

shadow on the area so that unlawful-

ness in Defendant’s actions was not [clear-

ly established at the time of their ac-

tions]”); Musladin, 127 S.Ct. at 654 cf. (noting divergence the wide in how lower analyzed

courts a certain issue demon- Supreme

strated the lack of a Court case

clearly establishing federal law AEDPA

case).

D. Conclusion

The district court was correct with re-

spect issue established

law. I would affirm that issue. America,

UNITED STATES of

Plaintiff-Appellant, Cross-

Appellee, Eugene JACKSON,

Frederick

Defendant-Appellee,

Cross-Appellant.

No. 07-13374.

United States Court of Appeals,

Eleventh Circuit.

Oct. notes Firemen's Weigel quit Henderson said struggling Thien, (8th Fund Ins. Co. v. 8 F.3d before he left to tend to his Assuming hands. Cir.1993). investigator accurately reported statement, considered, if is insufficient Henderson's unsworn statement it cannot be summary to defeat judgment in favor of against used Broad and it is insufficient to If, Henderson. argues, as the Estate the dis- summary judgment defeat against Henderson. concluded, holds, trict majority court and the Wright-Simmons City City, Okla. departure Henderson’s to warm his hands is (10th Cir.1998) ("It F.3d is well defining respect event with to the issue of settled in this circuit that we can consider sufficiently when under control to only admissible reviewing evidence in an or him, safely moving warrant then Henderson granting summary judgment.... der Hearsay hardly responsible can for unreasonable testimony cannot be considered because during use of force his absence. party's description third sup of a witness' any event Henderson's statement cannot posed testimony is grist not suitable for the against be used Broad because is not mill.") summary judgment (quotations omit statement, Broad’s adopted, nor one ted). there is no conspiracy agency evidence of a claims Henderson's unsworn relationship. 801(d)(2); Fed.R.Evid. see also hearsay statement is not because it constitutes Robinson v. Audi Aktienge Nsu Auto Union party opponent. admission of a sellschaft, See Fed. 1487-89 Cir. 801(d)(2) ("A 1984). R.Evid. hearsay statement is not

Case Details

Case Name: Weigel v. Broad

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 21, 2008

Citation: 544 F.3d 1143

Docket Number: 05-8094, 05-8102

Court Abbreviation: 10th Cir.