Six years ago, Dallas police officers who ostensibly were trying to help Tony Timpa, a 32-year-old man in the midst of a psychological crisis, ended up killing him instead. Four years later, a federal judge ruled that the cops were protected by qualified immunity, which shields public officials from civil liability unless their alleged misconduct violated "clearly established" law. But last December, the U.S. Court of Appeals for the 5th Circuit overturned that decision, allowing Timpa's relatives to proceed with their civil rights lawsuit. Today the Supreme Court declined to hear an appeal of the 5th Circuit's decision, which means the plaintiffs will finally get a chance to make their case.
On a Monday night in August 2016, Timpa called 911 to report that he was "having a lot of anxiety" about a man he feared would harm him. Timpa mentioned that he had received several psychiatric diagnoses—schizophrenia, depression, bipolar disorder, and anxiety disorder—but had not taken his medication that day. After police arrived in response to that call and other reports of a man behaving erratically near 1728 West Mockingbird Lane, Timpa yelled, "You're gonna kill me!" He was right.
Timpa, who had already been handcuffed by a security guard, died while being pinned to the ground face down by several police officers for about 15 minutes, during which time he pleaded with them to stop and cried for help over and over again. The officers, while intermittently showing signs of compassion, joked about Timpa's predicament and the possibility that they had killed him.
Confronted by these facts, U.S. District Judge David Godbey did not definitively determine whether the officers' conduct was consistent with the Fourth Amendment's ban on "unreasonable searches and seizures." Even if it wasn't, he said in his 2020 opinion, the law on that point was not clear enough at the time to allow claims under 42 USC 1983, which authorizes lawsuits against state or local officials who violate people's constitutional rights.
The circumstances of Timpa's death were similar to the prolonged prone restraint that killed George Floyd in Minneapolis four years later. That case led to a $27 million civil settlement and criminal convictions for Officer Derek Chauvin, who kneeled on Floyd's neck for nine and a half minutes, and three of his colleagues, who were accused of failing to intervene or provide appropriate medical aid.
In Timpa's case, by contrast, no charges were filed, and it initially seemed his family's lawsuit was doomed by qualified immunity, a doctrine that the Supreme Court grafted onto a statute that makes no mention of such an excuse. Godbey's application of the doctrine vividly illustrated how difficult it can be for plaintiffs to overcome it.
Timpa's family argued that the Dallas officers' use of force was clearly unconstitutional under Gutierrez v. City of San Antonio, a 1998 case involving a man who died while restrained face down in the back of a patrol car. In that case, the 5th Circuit allowed an excessive force claim to proceed. In both cases, the lawsuit filed by Timpa's relatives noted, police knew the detainee was under the influence of cocaine. The 5th Circuit in Gutierrez held that the use of force can be excessive "when a drug-affected person in a state of excited delirium is hog-tied and placed face down in a prone position."
Godbey noted that Timpa, although restrained on his stomach while his hands and feet were shackled, was not hog-tied, which in his view was enough to make Gutierrez inapplicable. He cited three subsequent cases in which the 5th Circuit had blocked excessive force claims against officers who allegedly used deadly prone restraints against resisting detainees.
Godbey likewise was unimpressed by decisions in which five other federal appeals courts had ruled that prone restraints causing death or severe injury did or could qualify as excessive force. Those rulings, he said, did not amount to "a 'robust consensus' of persuasive authority," because the U.S. Court of Appeals for the 8th Circuit reached a different conclusion in a 2020 case involving a man arrested for trespassing who died after St. Louis police officers pinned him face down on the floor of his jail cell. The 8th Circuit ruled that "the Officers' actions did not amount to constitutionally excessive force," because they "held [the arrestee] in the prone position only until he stopped actively fighting against his restraints and the Officers."
Was Tony Timpa "actively fighting" the officers who killed him? Citing the "custodial death report" filed after the incident, his family noted that he "never threatened" the officers, "never resisted being handcuffed," "never attempted to hit or fight with" them, "never used a weapon to threaten or assault" them, and "never attempted to flee."
In Godbey's view, those facts were not enough to establish that the officers used force against a "non-resisting" detainee, as Timpa's family argued. "Although Timpa was not struggling for the entire duration of Defendants' restraint of him," he wrote, "the body cam video and audio shows that he continuously moved and yelled in contravention of the officers' directives, kicked at [two officers], and was struggling enough that [a paramedic's] first attempt to take his vitals was unsuccessful."
According to his family, Timpa was "suffering drug-induced psychosis." The officers clearly recognized that Timpa was intoxicated, since they repeatedly asked him what drug he was on, and he told them he had taken cocaine. Yet they proceeded to restrain him for 15 minutes in a position that made it difficult for him to breathe.
An expert hired by Timpa's family concluded that he "died due to mechanical asphyxia." The Dallas County medical examiner concluded that Timpa suffered "sudden cardiac death due to the toxic effects of cocaine and physiological stress associated with physical restraint." She added that because of "his prone position and physical restraint by an officer, an element of mechanical or positional asphyxia cannot be ruled out."
Given the circumstances, Timpa's "resistance," which the officers repeatedly described as "squirming," was perfectly understandable. Godbey's framing suggested that someone who "move[s] and yell[s]" because he is being smothered to death thereby justifies the use of force that caused him to fear for his life.
The 5th Circuit saw the situation differently. It revived the claims against Officer Dustin Dillard, who pinned Timpa to the ground by kneeling on his back, and three other officers who allegedly failed to stop Dillard's excessive use of force.
"Within the Fifth Circuit, the law has long been clearly established that an officer's continued use of force on a restrained and subdued subject is objectively unreasonable," Judge Edith Brown Clement wrote for a unanimous three-judge panel. "A jury could find that an objectively reasonable officer with Dillard's training would have concluded that Timpa was struggling to breathe, not resisting arrest….A jury could find that Timpa was subdued by nine minutes into the restraint and that the continued use of force was objectively unreasonable in violation of Timpa's Fourth Amendment rights."
Clement said "the record supports an inference that Dillard knelt on Timpa's back with enough force to cause asphyxiation." She noted that Dallas officers are specifically trained for situations like this. They are taught to move a subject into a "recovery position" (on his side or sitting upright) as soon as possible "because the prolonged use of a prone restraint may result in a 'combination of increased oxygen demand with a failure to maintain an open airway and/or inhibition of the chest wall and diaphragm [that] has been cited in positional asphyxia deaths.'" They are also taught that when a subject is suddenly unresponsive, he should receive immediate medical attention.
In this case, the body camera video shows the officers recognized that Timpa was unconscious several minutes before they finally lifted his lifeless body onto a gurney. "If I was squirming like that, I'd be sleeping too," one remarked. "Hey, time for school! Wake up!" another said. The two cops elaborated on the gag, laughing while portraying Timpa as a child who does not want to go to school and describing the breakfast of "scrambled eggs" and "tutti-frutti waffles" waiting for him.
Now that the Supreme Court has declined to intervene, Timpa's relatives will have a chance to present a jury with these facts. But the fact that they were initially denied that opportunity speaks volumes about the formidable barrier erected by qualified immunity.
"This is exactly why qualified immunity must be abolished or at least modified," Geoff Henley, the attorney representing Timpa's family, said after Godbey's decision. "It allows officers to continue to use force that we all see and know to be excessive simply because there is no previous ruling prohibiting precisely the same kind of force. It's squeezing a football through the eye of a needle."
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