Timpa v. Dillard

Case: 20-10876    Document: 00516132354        Page: 1     Date Filed: 12/15/2021




          United States Court of Appeals
               for the Fifth Circuit                              United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                 December 15, 2021
                                No. 20-10876                        Lyle W. Cayce
                                                                         Clerk

   Vicki Timpa, individually, and as representative of The Estate of
   Anthony Timpa; K.T., a minor child; Cheryll Timpa, as next of
   friend of K.T., a minor child,

                                                         Plaintiffs—Appellants,

                                    versus

   Dustin Dillard; Danny Vasquez; Raymond Dominguez;
   Domingo Rivera; Kevin Mansell,

                                                     Defendants—Appellees,

                                    versus

   Joe Timpa,

                                                         Intervenor—Appellant.


                 Appeal from the United States District Court
                     for the Northern District of Texas
                            USDC 3:16-CV-3089


   Before Clement, Southwick, and Willett, Circuit Judges.
   Edith Brown Clement, Circuit Judge:
         This appeal arises from the death of Anthony Timpa while he was
   being restrained by law enforcement after he called 911 and asked for
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                                     No. 20-10876


   assistance during a mental health episode. Timpa’s family (the Plaintiffs)
   filed this 

 lawsuit, alleging that five officers (the Officers) of
   the Dallas Police Department (DPD) violated Timpa’s Fourth Amendment
   rights by causing his death through the prolonged use of a prone restraint
   with bodyweight force during his arrest. As relevant to this appeal, Plaintiffs
   asserted claims of excessive force and of bystander liability. The district
   court granted summary judgment to the individual Defendant-Officers on all
   claims and held that they were entitled to qualified immunity.                We
   REVERSE summary judgment as to the claim of excessive force, and we
   AFFIRM in part and REVERSE in part as to the claims of bystander
   liability.
                                           I.
           On the evening of August 10, 2016, Timpa called 911 and asked to be
   picked up. He stated that he had a history of mental illness, he had not taken
   his medications, he was “having a lot of anxiety,” and he was afraid of a man
   that was with him. The call ended abruptly. When the operator called back,
   Timpa provided his location on Mockingbird Lane in Dallas, Texas. In the
   background of the call, the sounds of honking and of people arguing could be
   heard. A motorist then placed a 911 call to report a man “running up and
   down the highway on Mockingbird [Lane,] . . . stopping traffic” and
   attempting to climb a public bus. A private security guard called 911 with the
   same report and noted his belief that the man “[was] on something.” The
   dispatcher requested officers respond to a Crisis Intervention Training
   (CIT) situation and described Timpa as a white male with schizophrenia off
   his medications.
           A CIT call informs responding officers that the situation involves an
   individual who may be experiencing mental health issues. DPD General
   Orders instructed that five officers report to CIT calls to perform the “Five-




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                                     No. 20-10876


   Man Takedown,” which is a control technique where each of four officers
   secures one of the subject’s limbs while a fifth officer holds the head. This
   technique allows officers to gain control over a subject and simultaneously
   prevent him from injuring himself or others. Regardless of whether officers
   were responding to a CIT call, DPD General Orders instructed that, for all
   arrestees, “as soon as [they] are brought under control, they are placed in an
   upright position (if possible) or on their side.”
          DPD General Orders reiterated this instruction for the restraint of
   subjects suffering from “excited delirium.” Excited delirium is “a state of
   agitation, excitability, and paranoia . . . often associated with drug use, most
   commonly cocaine.” Goode v. Baggett, 

, 233 n.6 (5th Cir.
   2020) (citing Gutierrez v. City of San Antonio, 

 (5th Cir.
   1998)). The Orders described the following symptoms as indicators of
   excited delirium: “[d]elusions of persecution,” “[p]aranoia,” and
   “[t]hrashing after restraint.” Officers were instructed to “treat the arrest of
   a subject [in a state of excited delirium] as a medical emergency” and to
   “continuously monitor[]” the arrestee because “[s]ubjects suffering from
   this disorder may collapse and die without warning.”               The Orders
   commanded that subjects in a state of excited delirium “will be placed in an
   upright position (if possible) or on their side as soon as they are brought under
   control.” In addition, the Officers on the scene received specific training on
   excited delirium, which twice reiterated that officers must, “as soon as
   possible, move [the] subject to a recovery position (on [their] side or seated
   upright)” because the prolonged use of a prone restraint may result in
   “positional asphyxia.” The training also warned that “[i]f [the] subject
   suddenly calms, goes unconscious, or otherwise becomes unresponsive,
   advise [a paramedic] immediately,” because “[a] sudden cessation of
   struggle is a prime indicator that the subject may be experiencing fatal
   autonomic dysfunction (sudden death).”




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                                     No. 20-10876


          Supervising Police Sergeant Kevin Mansell arrived first on
   Mockingbird Lane at 10:36 p.m. By that point, Timpa had already been
   handcuffed by two private security guards and he was sitting barefoot on the
   grass beside the sidewalk. Mansell called for backup and for an ambulance,
   stating that Timpa was “in traffic . . . and he’s definitely going to be a danger
   to himself.” According to Mansell, Timpa was “thrashing” on the ground,
   “kicking in the air [at] nobody that’s there,” and “hollering, ‘Help me, help
   me, God help me.’”        Once, before the other Officers arrived, Timpa
   managed to roll into the gutter of the street and Mansell and a security guard
   lifted Timpa and placed him back on the grass.
          Within seven to ten minutes, two paramedics, Senior Corporal
   Raymond Dominguez, and Officers Dustin Dillard, Danny Vasquez, and
   Domingo Rivera arrived. Each of the Officers was informed that Timpa was
   a mentally ill individual off his medications. Three of the Officers (Dillard,
   Vasquez, and Rivera) were wearing body cameras, which captured the
   following fifteen minutes.
          The footage begins with Timpa handcuffed and barefoot on his back
   on the grass boulevard beside a bus bench, yelling: “Help me! . . . You’re
   gonna kill me!” The Officers attempted to calm Timpa. Timpa rolled back
   and forth on the grass, then rolled close to the curb of the street. Dillard and
   Vasquez immediately forced Timpa onto his stomach and each pressed one
   knee on Timpa’s back while a security guard restrained his legs.
          Vasquez removed his knee after approximately two minutes. Dillard
   continued to press his knee onto Timpa’s upper back in the prone restraint
   position for fourteen minutes and seven seconds. He pressed his left knee
   into Timpa’s back and his left hand between Timpa’s shoulders with his right
   hand pressing on Timpa’s right shoulder intermittently. In his protective
   vest and duty belt, Dillard weighed approximately 190 pounds.




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           Approximately fifteen seconds into the restraint, Dillard asked
   Timpa: “What did you take?” Timpa answered, “Coke.” 1 One minute into
   the restraint, a paramedic attempted to take Timpa’s vitals. The paramedic
   was unable to get a reading as Timpa continued to struggle and yelled: “I
   can’t live!” Between three to seven minutes into the restraint, the Officers
   swapped out the private security guard’s handcuffs with some difficulty
   because of Timpa’s continued flailing. 2 At the same time, the Officers zip
   tied Timpa’s ankles and forced his lower legs under the cover of a concrete
   bus bench. While the Officers were securing restraints on Timpa’s ankles,
   one Defendant-Officer said: “We don’t have to hogtie him, do we?”
   Another Defendant-Officer suggested “we could pull his legs up.” The
   Officers ultimately left Timpa’s legs under the bus bench.
           Seven minutes into the restraint, Timpa—prone and cuffed at the
   hands and ankles—had calmed down sufficiently for a paramedic to
   successfully take his vitals. When the paramedic approached, Dillard asked:
   “Do you want me to roll him over?” The paramedic responded: “Before
   y’all move him, if I can just get right here and see if I can get to his arm.”


           1
             Dillard testified that he did not hear Timpa reply, “coke,” but the video confirms
   that Timpa audibly stated he had taken cocaine. The footage reflects Dillard asking Timpa
   what he had taken at least seven times during the restraint and concluding at least three
   times that Timpa “took something.” Timpa was also exhibiting signs of excited delirium,
   such as “yelling incoherently[] and acting really strange.” Goode, 811 F. App’x at 236
   (internal quotation marks omitted); see also Aguirre v. City of San Antonio, 

   (5th Cir. 2021) (noting that a subject’s “plainly erratic behavior” gave officers “reason to
   know of the substantial risk that [the subject] . . . was in a state of excited delirium”).
   Drawing all inferences in favor of the Plaintiffs, Dillard was aware that Timpa may have
   been in a state of excited delirium approximately twenty seconds into the restraint.
           2
              The parties dispute whether Timpa kicked at the Officers during the arrest.
   Dillard testified that he did not observe Timpa intentionally kick at any Officers. The video
   does not clarify whether Timpa was flailing or aiming to kick. The dispute is not material
   because kicking in the air is still a form of resistance to arrest. See Tucker v. City of
   Shreveport, 

 (5th Cir. 2021).




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   While the paramedic was taking Timpa’s vitals, Rivera left the scene to find
   Timpa’s car. By the time the paramedic had finished, approximately nine
   minutes into the restraint, Timpa’s legs had stopped kicking, though he
   remained vocal and kept calling for help.
          Thirty seconds later, only Timpa’s head moved intermittently from
   side to side. He continued to cry out “Help me!” but his voice weakened
   and slurred. Much of what he said was too muffled to be comprehensible.
   Forty-five seconds later, he suddenly stilled and was quiet except for a few
   moans. Then, he fell limp and nonresponsive for the final three-and-a-half
   minutes of the restraint.
          The Officers discussed what to do next. Dominguez said to Mansell:
   “So what’s the plan? You’re [in charge] out here, sir.” Mansell responded
   that they should “strap [Timpa] to a gurney.” Mansell then returned to his
   patrol car, “a few feet [away],” to check for warrants for Timpa’s arrest. He
   sat in his vehicle “with the car door open.”
          During this time, the Officers began to express concern that Timpa
   was nonresponsive.     Dominguez said, “Tony, are you still with us?”
   Vasquez said, “Is he acknowledging you anymore?” Dominguez said, “Not
   really.” Dillard called Timpa’s name to no response. Dominguez stated that
   he wanted to “mak[e] sure he was still breathing ‘cause his nose is buried in
   the [ground].” Dillard said, “I think he’s asleep!” and stated that he heard
   Timpa “snoring.” Dominguez and Vasquez expressed surprise and then
   made jesting comments about Timpa’s loss of consciousness. A paramedic
   approached and asked what happened. Dillard responded: “I don’t know.
   He just got quiet.” Vasquez said: “All of a sudden, just . . . bloop.” The
   paramedic administered a sedative and Timpa’s head twitched. Then, three-
   and-a-half minutes after Timpa had become nonresponsive, Dillard removed




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                                    No. 20-10876


   his knee. Shortly after the Officers placed Timpa on the gurney, the
   paramedics determined that he was dead.
          The Dallas County Medical Examiner conducted Timpa’s autopsy
   and ruled his death a homicide. The report identified cocaine in Timpa’s
   blood and concluded that he had been suffering from “excited delirium
   syndrome.” The report further concluded that Timpa died from “sudden
   cardiac death due to the toxic effects of cocaine and [the] physiologic stress
   associated with physical restraint,” which could have resulted in
   “mechanical or positional asphyxia.” Plaintiffs’ medical expert, Dr. Kim
   Collins, MD, a forensic pathologist, went one step further and concluded,
   “to a reasonable degree of medical certainty,” that Timpa’s death was
   caused by mechanical asphyxia, which occurs when an individual’s torso is
   compressed, preventing respiration and circulation of oxygen. She testified
   that Timpa’s obesity, extreme exertion, and state of excited delirium
   exacerbated the risk of mechanical asphyxiation. She further testified that
   Timpa would have lived had he been restrained for the same amount of time
   in a prone position without force applied to his back.
          Vicki Timpa, the mother of the deceased, individually and as
   representative of the estate of the deceased, and Cheryll Timpa, individually
   and as next friend of K.T., a minor child of the deceased, filed this
   Section 1983 lawsuit alleging, as relevant here, a claim of excessive force
   against Defendant-Officer Dillard and claims of bystander liability against
   Defendant-Officers Mansell, Vasquez, Dominguez, and Rivera. Joe Timpa,
   the father of the deceased, later intervened. On summary judgment, the
   district court granted qualified immunity to the Officers in their individual
   capacity on the basis that “there was no law clearly establishing Defendants’
   conduct as a constitutional violation prior to August 10, 2016.” The district
   court dismissed the bystander liability claims on the same basis. On appeal,




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   the Plaintiffs argue that the district court erred in dismissing the excessive
   force claim and the bystander liability claims.
                                         II.
          We review the district court’s grant of summary judgment de novo. See
   Aguirre, 

. Summary judgment is appropriate only “if the
   movant shows that there is no genuine dispute as to any material fact and
   [that] the movant is entitled to judgment as a matter of law.” Darden v. City
   of Fort Worth, 

 (5th Cir. 2018) (quoting FED. R. CIV. P.
   56(a)). A fact is “material” if it “might affect the outcome of the suit under
   the governing law.” Anderson v. Liberty Lobby, Inc., 

 (1986).
          The defense of qualified immunity “balance[s] two competing
   societal interests: ‘the need to hold public officials accountable when they
   exercise power irresponsibly and the need to shield officials from harassment,
   distraction, and liability when they perform their duties reasonably.’” Joseph
   ex rel. Est. of Joseph v. Bartlett, 

 (5th Cir. 2020) (quoting
   Pearson v. Callahan, 

 (2009)). Where a plaintiff alleges
   excessive force during an arrest, “the federal right at issue is the Fourth
   Amendment right against unreasonable seizures.” Tolan v. Cotton, 

 (2014) (per curiam).
          Whether the amount of force used was objectively reasonable requires
   “a balancing of the nature and quality of the intrusion on the individual’s
   Fourth Amendment interests against the importance of the governmental
   interests alleged to justify the intrusion.” 

 (cleaned up) (quoting Tennessee
   v. Garner, 

 (1985)). A fact-specific range of permissible force
   emerges, “such that the need for force determines how much force is
   constitutionally permissible.” Bush v. Strain, 

 (5th Cir.
   2008). At one end of the spectrum, “a threat of serious physical harm, either
   to the officer or to others” may justify the use of deadly force. Tennessee v.




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   Garner, 

 (1985). At the other end of the spectrum, when a
   subject has been subdued—meaning, he “lacks any means of evading
   custody” and does not pose a threat of immediate harm—the further use of
   force is not justified. Bartlett, 

. For the cases in between, a
   court should consider the “totality of the circumstances.” Darden, 

.
             But a plaintiff’s showing that a constitutional violation has occurred is
   not enough. The doctrine of qualified immunity shields “government
   officials performing discretionary functions . . . from liability for civil
   damages insofar as their conduct does not violate clearly established statutory
   or constitutional rights of which a reasonable person would have known.”
   Harlow v. Fitzgerald, 

 (1982). Thus, to defeat a motion for
   summary judgment based on qualified immunity, the plaintiff must present
   evidence “(1) that the official violated a statutory or constitutional right, and
   (2) that the right was ‘clearly established’ at the time of the challenged
   conduct.” Morgan v. Swanson, 

 (5th Cir. 2011) (en banc)
   (quoting Ashcroft v. al-Kidd, 

, 735 (2011)).
                                            III.
             We begin with the excessive force claim against Dillard. The Plaintiffs
   contend that Dillard unlawfully restrained Timpa in the prone position with
   bodyweight force pressed on Timpa’s back and that the state of the law in
   August 2016 clearly established that officers could not subject a subdued
   individual to the use of force. Although we may begin with either prong of
   qualified immunity, we turn first to the merits of the excessive force claim to
   provide clarity and guidance to law enforcement.
             The Plaintiffs contend that Dillard’s restraint of Timpa constituted
   both excessive force and deadly force in violation of the Fourth Amendment.
   Claims that law enforcement used deadly force are “treated as a special




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                                    No. 20-10876


   subset of excessive force claims.” Aguirre, 

 (citing Gutierrez,
   

). We consider first whether Dillard’s use of force was
   excessive and second whether a jury could find the force used was deadly.
                                         A.
                                          1.
          The reasonableness of the use of force turns on our consideration of
   the full factual context, particularly the following three factors: (1) “the
   severity of the crime at issue,” (2) “whether the suspect pose[d] an
   immediate threat to the safety of the officers or others,” and (3) “whether he
   [was] actively resisting arrest or attempting to evade arrest by flight.”
   Graham v. Connor, 

 (1989). “A court . . . cannot apply this
   standard mechanically,” but must look through the eyes of a reasonable
   officer on the scene. Kingsley v. Hendrickson, 

 (2015).
          As to the first Graham factor, Dillard’s continued use of force was not
   justified by a criminal investigatory function. The Officers concede that
   Timpa’s criminal liability was “minor”—no more than a traffic violation.
   See Tex. Penal Code § 42.03; Tex. Transp. Code §§ 552.001–.006,
   542.301. The Officers did not intend to charge him with any crimes. The
   first factor weighs against the reasonableness of the prolonged use of
   bodyweight force. Cf. Trammell v. Fruge, 

 (5th Cir. 2017)
   (noting that “a minor offense militat[es] against the use of force”); Deville v.
   Marcantel, 

 (5th Cir. 2009) (per curiam) (same).
          In addition, we note that these facts do not present the paradigmatic
   circumstance of “an officer arriv[ing] at the scene with little or no
   information and [having] to make a split-second decision” in response to
   criminal activity. Darden, 

. The Officers had been dispatched
   to a CIT situation after Timpa himself had called 911 requesting to be picked
   up. Darden was thus equipped with the understanding that Timpa was likely




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                                     No. 20-10876


   experiencing a mental health crisis and needed medical assistance. He
   arrived to observe a barefoot, handcuffed man in distress on the grass
   boulevard beside the sidewalk. These perceptions were material to his
   assessment of “how much additional force, if any, was necessary” to control
   the situation. 

          The second Graham factor considers whether the subject posed “an
   immediate threat” to the safety of others. Graham, 

. The
   Officers contend that the continued use of force was justified because Timpa
   had interfered with traffic earlier in the evening and had kicked his legs when
   the Officers attempted to restrain him. But “an exercise of force that is
   reasonable at one moment can become unreasonable in the next if the
   justification for the use of force has ceased.” Lytle v. Bexar County, 

 (5th Cir. 2009). Approximately nine minutes into the restraint,
   Timpa was cuffed at both the wrists and the ankles, his lower legs had
   stopped moving, and he was surrounded by five officers, two paramedics, and
   two private security guards—most of whom were mulling about while Dillard
   maintained his bodyweight force on Timpa’s upper back.
          As to any threat of harm to the Officers, it is obvious that Timpa could
   no longer kick when he was lying face down and handcuffed with his ankles
   restrained and confined under the bus bench. As to any threat to himself,
   Timpa had already calmed down sufficiently for the paramedics to take his
   vitals. As to any threat to passing motorists, Plaintiffs’ expert opined that “it
   was unlikely, if not completely impossible, for [Timpa] to roll into the street
   considering he was literally flanked on all sides by police officers.” And when
   the paramedic asked if Timpa could walk to the ambulance in ankle cuffs,
   Dillard said: “I highly doubt it.” A jury could find that no objectively
   reasonable officer would believe that Timpa—restrained, surrounded, and
   subdued—continued to pose an immediate threat of harm justifying the
   prolonged use of force. Cf. Lombardo v. City of St. Louis, 

, 2241



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   (2021) (per curiam) (noting that whether a subject “was handcuffed and leg
   shackled” reflects on “the security problem at issue[] and the threat—to
   both [the arrestee] and others—reasonably perceived by the officers”);
   Aguirre, 

 (holding a genuine dispute of material fact existed
   with respect to whether a handcuffed subject surrounded by five police
   officers posed an immediate threat justifying the use of a maximal prone
   restraint).   The second Graham factor weighs against the objective
   reasonableness of the prolonged use of force.
          Turning to the third Graham factor, the Plaintiffs have raised a
   genuine dispute of material fact as to whether Timpa continued to actively
   resist arrest. The Officers first argue that the continued use of force was
   justified because Timpa struggled intermittently. But “even if [Timpa] failed
   to comply and struggled against the officers at certain points throughout the
   encounter, that resistance did not justify force indefinitely.” Bartlett, 

.     Officers cannot use force independent of a subject’s
   “contemporaneous, active resistance.” 

 Thus, even assuming that
   Timpa’s flailing amounted to active resistance, “the force calculus change[d]
   substantially once that resistance end[ed]” nine minutes into the restraint.
   Curran v. Aleshire, 

 (5th Cir. 2015); see also Tucker, 998 F.3d
   at 181–82 (“[A] use of force that may begin as reasonably necessary in order
   to obtain compliance may cease to be so as a suspect becomes more
   compliant.”).
          The Officers next argue that Timpa continued to actively resist arrest
   by “squirm[ing]” and “mov[ing] his head from left to right” in the final
   minutes of the restraint. Plaintiffs contend that Timpa moved his body in
   order to breathe. Plaintiffs’ expert, Dr. Collins, testified that pressing down
   on the torso of a subject held in a prone restraint “greatly increases the work
   of breathing,” which leads the subject to “experience[] air hunger, panic, and
   anxiety as Mr. Timpa did.” She concluded: “[i]t can be anticipated that the



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                                           No. 20-10876


   victim will attempt to move his body in order to breathe.” 3 The body camera
   footage does not plainly contradict the Plaintiffs’ version of the facts: Timpa
   attempts to raise his torso and cries out repetitively: “Help me,” “You’re
   gonna kill me,” “I’m gonna die,” “I can’t live.”
           The risks of asphyxiation in this circumstance should have been
   familiar to Dillard because he had received training on the use of a prone
   restraint to control subjects in a state of excited delirium. See Darden, 

 n.8 (“[T]he violation of police department policies . . . and
   corresponding notice to officers [is] relevant in analyzing the reasonableness
   of a particular use of force under the totality of the circumstances.”). DPD
   training instructed that a subject in a state of excited delirium must, “as soon
   as possible[,] [be] mov[ed] . . . to a recovery position (on [their] side or seated
   upright),” 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.” Dillard was also trained that “[i]f [the]
   subject suddenly calms, goes unconscious, or otherwise becomes
   unresponsive, . . . [a] sudden cessation of struggle is a prime indicator that
   the subject may be experiencing fatal autonomic dysfunction (sudden
   death).” A sudden cessation of struggle and lack of responsiveness is
   precisely what occurred in the final minutes of Timpa’s restraint. 4 A jury


           3
             A jury could also consider prominent guidance circulated by the Department of
   Justice warning of the risk of positional asphyxia resulting from the use of a prone restraint.
   See Nat’l Law Enf’t Tech. Ctr., U.S. Dep’t of Just., Positional
   Ashyxia—Sudden Death (1995), https://www.ncjrs.gov/pdffiles/posasph.pdf; cf.
   Lombardo, 

 (noting that “well-known police guidance” warning “that the
   struggles of a prone suspect may be due to oxygen deficiency, rather than a desire to disobey
   officers’ commands,” reflects on whether the force used was excessive).
           4
            The Officers contend that they believed Timpa to be faking sleep as a tactic to
   gain an advantage. That issue “is a factual question that must be decided by a jury.”




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                                          No. 20-10876


   could find that an objectively reasonable officer with Dillard’s training would
   have concluded that Timpa was struggling to breathe, not resisting arrest. 5
   See Darden, 

 (holding that a “jury could conclude that all
   reasonable officers on the scene would have believed that [the subject] was
   merely trying to get into a position where he could breathe and was not
   resisting arrest”); see also Goode, 811 F. App’x at 232 (same). The final
   Graham factor weighs against the objective reasonableness of the continued
   use of force.
           Viewing the facts in the light most positive to the Plaintiffs, none of
   the Graham factors justified the prolonged use of force. 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. Of course, a jury may ultimately conclude the
   opposite: that Timpa was not subdued and that he continued to pose an
   immediate threat throughout his restraint. Under that consideration of the
   facts, Dillard’s decision to continue exercising force might be reasonable.
   Ultimately, it is the job of the factfinder, not of this court, to resolve those



   Darden, 

. At the summary judgment phase, it is not for us to “weigh the
   evidence and determine the truth of the matter,” but rather, to draw all justifiable
   inferences in favor of the non-movant. Liberty Lobby, 

.
           5
             That paramedics were present during the arrest and did not intervene does not
   change the calculus of objective unreasonableness. See, e.g., Aguirre, 

   (finding a Fourth Amendment violation when officers used a maximal prone restraint
   despite the presence of a medical tech officer); Goode, 811 F. App’x at 229 (finding a Fourth
   Amendment violation when officers used a hog-tie restraint despite the presence of medical
   personnel); Gutierrez, 139 F.3d at 442–43 (finding a Fourth Amendment violation when
   officers used a hog-tie restraint despite the assistance of paramedics in placing the subject
   in that position). And under DPD General Orders, it is not the paramedics but the
   “[o]fficers [that] are responsible for rendering first aid to injured subjects,” including:
   “[m]onitoring the subject,” “[c]hecking pulse and skin color,” and “[c]hecking for
   consciousness.”




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                                     No. 20-10876


   factual disputes for itself.     A jury’s interpretation ensures that legal
   judgments of reasonableness hew closely to widely shared expectations of the
   use of force by our police officers.
                                          2.
          The deadly force inquiry is two-pronged: First, whether the force used
   constituted deadly force; and second, whether the subject posed a threat of
   serious harm justifying the use of deadly force. See Gutierrez, 

   (citing Garner, 

). Plaintiffs argue that the prolonged use of a
   prone restraint with bodyweight force on the back of an individual who
   possessed apparent risk factors and posed no serious threat of harm
   constituted an objectively unreasonable application of deadly force.
                                          a.
          “[W]hether a particular use of force is ‘deadly force’ is a question of
   fact, not one of law.” Flores v. City of Palacios, 

 (5th Cir.
   2004). The question is whether a jury could find that the use of force
   “carr[ied] with it a substantial risk of causing death or serious bodily harm.”
   Gutierrez, 

 (quoting Robinette v. Barnes, 

 (6th
   Cir. 1988)). The Plaintiffs argue that kneeling on the back of an individual
   with three risk factors—obesity, excited delirium, and prior vigorous
   exertion—carried a substantial risk of causing death or serious bodily harm.
   The Officers argue that the Plaintiffs have failed to set forth sufficient
   evidence to create a triable fact issue.
          The summary judgment record includes DPD’s General Orders
   instructing officers to place subdued subjects—particularly those in a state of
   excited delirium—in an upright position or on their side. The Officers were
   trained that the prolonged use of a prone restraint on subjects in a state of
   excited delirium can result in positional asphyxia death. The jury could also
   consider prominent guidance from the Department of Justice instructing




                                              15
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                                         No. 20-10876


   that, to avoid positional asphyxia, officers should, “[a]s soon as the suspect
   is handcuffed, get him off his stomach.” DOJ, Positional Asphyxia—Sudden
   Death 1–2. The Department’s guidance highlighted (1) obesity, (2) excited
   delirium, and (3) vigorous exertion as “predisposing factors” that
   “compound the risk of sudden death.” 

           Plaintiffs also presented expert testimony on the substantial risks of a
   prone restraint with weight force on an obese and physically exhausted
   subject in a state of excited delirium. Plaintiffs’ medical expert, Dr. Collins,
   testified that the prone restraint position with bodyweight force is inherently
   lethal if used for an extended period of time. She described in detail how the
   use of the prone restraint with bodyweight force significantly increased the
   likelihood of asphyxiation:
           In the prone position, an individual is unable to effectively
           move the diaphragm, chest wall, and abdomen to
           breathe. . . . The body is also unable to adequately circulate
           blood resulting in engorgement and stagnation of blood flow in
           the upper body. . . . The face, partially or fully, pressed to the
           ground further decreases oxygenation. . . . When force is on
           the back and shoulders, . . . [i]t is extremely difficult to move
           the chest and abdomen. . . . When the body is prone and great
           force is on the back, the head, neck, and shoulders become
           engorged with blood while the lower part of the body is of
           normal color. Mr. Timpa had marked cyanosis with a clear line
           of demarcation across his chest indicative of . . . a tremendous
           amount of pressure to his back.
   She testified that Timpa would have lived had he been restrained for the same
   amount of time in the prone position without force applied to his back. 6



           6
             The Officers argue that the Plaintiffs must identify the precise frequency with
   which death results from the use of a prone restraint combined with weight force. They
   cite no caselaw for that premise and we are not aware of any. Cf. Aguirre, 995 F.3d at 413–




                                               16
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                                         No. 20-10876


           Dr. Collins further testified that the risk of acute respiratory failure is
   greater when (1) “[i]ndividuals . . . have been physically exhausted prior to
   this restraint,” (2) “the individual is obese or has a large belly as this mass
   encroaches on the abdomen and diaphragm,” (3) the individual suffers from
   untreated psychiatric illness, which may increase oxygen demand, and (4) the
   individual is drug-affected, which “increases metabolism” and requires
   “more blood pumping through [the] body” carrying “more oxygen.” As Dr.
   Collins explained—and as Dillard had been trained—the latter two factors
   can result in a state of excited delirium.
           A jury could find that all three of these risk factors were apparent on
   the night that Timpa died. The video footage reflects Timpa exerting
   significant effort while the Officers applied restraints. The video footage also
   clearly reflects Timpa’s larger body size. The 911 operator informed the
   Officers that Timpa was a “diagnosed schizophrenic” off his medications.
   And Timpa told the Officers that he had used cocaine.
           Plaintiffs have raised a genuine issue of material fact as to whether the
   use of a prone restraint with bodyweight force on an individual with three
   apparent risk factors—obesity, physical exhaustion, and excited delirium—
   “create[d] a substantial risk of death or serious bodily injury.” Gutierrez, 

. A jury could find that this use of force constituted “deadly
   force.”
                                              b.
           Officers can use deadly force only if they have “probable cause to
   believe that the suspect poses a threat of serious physical harm.” Mason v.



   14 (relying on an experts’ explanation of the increased risks of serious harm from the use
   of a maximal prone restraint); Gutierrez, 

 (relying on evidence that “a
   number of persons” had died from the use of a hog-tie restraint).




                                              17
Case: 20-10876     Document: 00516132354           Page: 18    Date Filed: 12/15/2021




                                    No. 20-10876


   Lafayette City-Par. Consol. Gov’t, 

 (5th Cir. 2015) (quoting
   Garner, 

). Here, the Officers concede that the use of deadly
   force was not justified. But the record supports an inference that Dillard
   knelt on Timpa’s back with enough force to cause asphyxiation.
          Viewing the facts in the light most favorable to the Plaintiffs, the
   record supports that Timpa was subdued nine minutes into the continuing
   restraint and did not pose a threat of serious harm. The Officers make no
   argument that the use of asphyxiating pressure was necessary to maintain
   control of a subdued subject. In other words, the record supports the
   inference that, for at least five minutes, Timpa was subjected to force
   unnecessary to restrain him. If a jury were, in addition, to find that the use
   of a prone restraint with bodyweight force on an obese, exhausted individual
   in a state of excited delirium carried a substantial risk of causing death or
   serious bodily harm, then the prolonged restraint constituted an objectively
   unreasonable application of deadly force.
                                         B.
          The district court determined that no precedent clearly established
   that the use of a prone restraint with bodyweight force to bring a subject
   under police control was objectively unreasonable. But the district court
   failed to consider the continued use of such force after Timpa had been
   restrained and lacked the ability to pose a risk of harm or flight. We hold that
   the state of the law in August 2016 clearly established that an officer engages
   in an objectively unreasonable application of force by continuing to kneel on
   the back of an individual who has been subdued.
          Officers are entitled to qualified immunity “unless existing precedent
   ‘squarely governs’ the specific facts at issue.” Kisela v. Hughes, 

 (2018) (per curiam) (quoting Mullenix v. Luna, 

   (2015) (per curiam)). That does not require a showing that “the very action




                                         18
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                                    No. 20-10876


   in question has previously been held unlawful.” Anderson v. Creighton, 

 (1987). Rather, there can be “notable factual distinctions
   between the precedents relied on . . . so long as the prior decisions gave
   reasonable warning that the conduct then at issue violated constitutional
   rights.” Hope v. Pelzer, 

 (2002) (quoting United States v.
   Lanier, 

 (1997)).
          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. See Carroll v. Ellington, 

 (2015)
   (“The law was clearly established at the time of the deputies’ conduct that,
   once a suspect has been handcuffed and subdued, and is no longer resisting,
   an officer’s subsequent use of force is excessive.” (citing Strain, 513 F.3d at
   501–02)). “[A]lthough the right to make an arrest necessarily carries with it
   the right to use some degree of physical coercion or threat thereof to effect
   it, the permissible degree of force depends on [the Graham factors].” Cooper
   v. Brown, 

, 524–25 (5th Cir. 2016) (quoting Strain, 

). And “if enough time elapsed between the [subject’s active resistance]
   and the use of force that a reasonable officer would have realized [the subject]
   was no longer resisting,” the further use of force is unnecessary and
   objectively unreasonable. Curran, 

 (quoting Newman v.
   Guedry, 

 (5th Cir. 2012)). Our decisions in Strain, Cooper,
   and Darden clearly established the excessiveness of Dillard’s continued use
   of force on a restrained and subdued arrestee.
          In Bush v. Strain, we held that it was objectively unreasonable for an
   officer to force a subject’s face into the window of a vehicle when the subject
   “was not resisting arrest or attempting to flee.” 

. There, the
   defendant-officer attempted to arrest Holly Bush for simple battery. 

.   Partially handcuffed, Bush pulled her right arm away from the
   defendant-officer.    

   Bush alleged that, after the defendant-officer



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                                    No. 20-10876


   successfully handcuffed her, he “placed his hand behind her neck and head
   and forced her face into the rear window of a nearby vehicle.” 

 Bush
   suffered severe injuries to her jaw. 

 Because none of the Graham factors
   justified the continued use of force, we agreed that it was objectively
   unreasonable for the defendant-officer to “forcefully slam [an arrestee’s]
   face into a vehicle while she was restrained and subdued.” 

.
          Similarly, in Cooper v. Brown, we relied on the use of force in Strain to
   hold “that subjecting a compliant and non-threatening arrestee to a lengthy
   dog attack was objectively unreasonable.” 

. There, Jacob
   Cooper was suspected of driving under the influence and fled the scene on
   foot when stopped by an officer. 

. Another officer pursued Cooper
   and ordered his K9 unit to bite Cooper on the calf. 

 Although Cooper
   immediately became compliant and subdued, the officer did not order the dog
   to release its bite until after the handcuffs were secured—one to two minutes
   after the bite began. 

 We explained that it was objectively unreasonable
   for the defendant-officer to “continue[] applying force even after
   Cooper . . . was on his stomach” and subdued. 

.
          Finally, in Darden v. City of Fort Worth, we relied on the use of force
   in Strain and in Cooper to reiterate that, “it [is] clearly established that
   violently slamming or striking a suspect who is not actively resisting arrest
   constitutes excessive use of force.” 

. There, the defendant-
   officer punched, kicked, choked, and “forced [Jermaine] Darden—an obese
   man—onto his stomach, pushed his face into the floor, and pulled Darden’s
   hands behind his back.” 

 At the time that the defendant-officer used the
   prone restraint with bodyweight force, Darden was compliant and not
   resisting arrest. 

 In addition, the defendant-officer had reason to believe
   that he was using asphyxiating force because witnesses at the scene were
   yelling that Darden could not breathe. 

 We found that the defendant-




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                                      No. 20-10876


   officer’s actions “were plainly in conflict with our case law” prohibiting the
   use of force against a subdued subject. 

             We have reaffirmed again and again that this principle applies with
   obvious clarity to a variety of tools of force because the “[l]awfulness of
   force . . . does not depend on the precise instrument used to apply it.”
   Guedry, 

; see, e.g., Bartlett, 

 (striking an
   unrestrained, subdued subject in the prone position); Ellington, 800 F.3d at
   177 (striking a restrained, subdued subject in the prone position); Curran,
   

 (pressing a restrained, subdued subject against a wall);
   Ramirez v. Martinez, 

 (5th Cir. 2013) (tasing a restrained,
   subdued subject in the prone position); Guedry, 

 (striking and
   tasing an unrestrained, subdued subject).
             Like the subject in Strain, Timpa was suspected of only a minor
   offense. See 

. Timpa initially resisted arrest, similar to the
   subjects in Strain and in Cooper. See Cooper, 

; Strain, 

. Timpa, like the subject in Darden, was obese and forced to lie prone
   on his stomach with his hands restrained and bodyweight force applied to his
   back. See 

. As in Darden, Dillard had reason to believe that
   Timpa was struggling to breathe because Timpa told the Officers he took
   cocaine, which indicated a significant risk of excited delirium. 

 Most
   importantly, like the subjects in Strain, Cooper, and Darden, Timpa was
   subdued, unable to flee, and non-threatening during the continued use of
   force. See Darden, 

; Cooper, 

; Strain, 

.
             The distinguishing facts between Strain, Cooper, Darden, and this case
   sharpen the excessiveness of Dillard’s continued use of force. Unlike the
   subjects in Cooper and Darden, who were suspected of serious crimes, Timpa
   himself called the police asking for assistance. See Darden, 

;




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                                    No. 20-10876


   Cooper, 

. The officers had no intention of arresting him for
   any crime. Whereas the defendant-officers in Strain, Cooper, and Darden
   ceased using force shortly after the subject was restrained, Dillard continued
   to kneel on Timpa’s back for seven minutes after he was restrained at both
   the wrists and the ankles, including five minutes after he ceased moving his
   lower legs, and three-and-a-half minutes after he lost consciousness. See
   Darden, 

; Cooper, 

; Strain, 

.
   Here, the use of force lasted for over fourteen minutes as compared with the
   one-to-two minute dog bite in Cooper; the one-to-two minute use of a prone
   restraint with weight force in Darden; and the momentary use of force in
   Strain. See Cooper, 

; Strain, 

; Darden v. City of
   Fort Worth, No. 4:15-CV-221-A, 

, at *5 (N.D. Tex. Aug.
   10, 2016). Finally, unlike the use of force in Cooper and in Strain, the use of
   a prone restraint with weight force resulted in the subject’s death in Darden
   and again here. See Darden, 

 n.8. These cases clearly
   established the unreasonableness of Dillard’s continued use of bodyweight
   force to hold Timpa in the prone restraint position after he was subdued and
   restrained.
          This conclusion comports with the decisions of our sister circuits that
   have considered similar facts. See McCue v. City of Bangor, 

   (1st Cir. 2016) (holding that “it was clearly established in September 2012
   that exerting significant, continued force on a person’s back ‘while that
   [person] is in a face-down prone position after being subdued and/or
   incapacitated constitutes excessive force’” (citation omitted)); Weigel v.
   Broad, 

 (10th Cir. 2008) (holding that “the law was clearly
   established,” by December 2002, “that applying pressure to [a subject’s]
   upper back, once he was handcuffed and his legs restrained, was
   constitutionally unreasonable due to the significant risk of positional
   asphyxiation associated with such actions”); Abdullahi v. City of Madison, 423




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Case: 20-10876       Document: 00516132354              Page: 23      Date Filed: 12/15/2021




                                         No. 20-

, 764–66 (7th Cir. 2005) (holding that the record supported an
   inference of deadly force when an officer restrained a mentally ill individual
   in the prone restraint position with bodyweight force for thirty to forty-five
   seconds until the individual lost consciousness); Champion v. Outlook
   Nashville, Inc., 

 (6th Cir. 2004) (holding that the law in
   April 2000 clearly established that “putting substantial or significant
   pressure on a suspect’s back while that suspect is in a face-down prone
   position after being subdued and/or incapacitated constituted excessive
   force”); Drummond ex rel. Drummond v. City of Anaheim, 

   (9th Cir. 2003) (holding that the continued use of a prone restraint with
   weight force “despite [the arrestee’s] repeated cries for air, and despite the
   fact that his hands were cuffed behind his back and he was offering no
   resistance” constituted excessive force). 7
           The Officers argue that the Fifth Circuit “has held that [the use of a]
   prone restraint [on] a resisting suspect does not violate the Fourth
   Amendment even when pressure is applied to the suspect’s back.” We have
   never articulated this per se rule. Nor could we because the Supreme Court
   has specifically rejected exactly that rule. See Lombardo, 

   (per curiam) (rejecting any per se rule that “the use of a prone restraint—no
   matter the kind, intensity, duration, or surrounding circumstances—
   is . . . constitutional so long as an individual appears to resist officers’ efforts
   to subdue him”). The Officers mischaracterize our caselaw.
           In Castillo v. City of Round Rock, an unpublished decision, we stated
   that “[r]estraining a person in a prone position is not, in and of itself,
   excessive force when the person restrained is resisting arrest.” No. 90-


           7
            Only the Eighth Circuit has held in the reverse and the Supreme Court recently
   vacated that decision on the merits. See Lombardo v. City of St. Louis, 

 (8th
   Cir. 2020), rev’d, 

 (2021) (per curiam).




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                                      No. 20-10876


   50163, 

, at *4 (5th Cir. Mar. 15, 1999) (per curiam). But this
   statement cannot be unmoored from its factual context. There, Jesus
   Castillo, an unrestrained subject holding a beer bottle above his head, had
   “fought” and “struggl[ed] vigorously on the ground” against an officer’s
   attempts to subdue him, leading “citizen bystanders . . . to aid in th[e] effort”
   of restraining him.       

.   During the subsequent tussle, Castillo
   “blood[ied] the officer’s nose[] in a manner that a reasonable officer could
   perceive as hostile.” 

. Two officers then held Castillo in the prone
   restraint position with bodyweight force on his back for four to six minutes
   while restraints were applied. 

 at *1–2. But once Castillo was “handcuffed
   and leg-shackled, [and] finally stopped struggling, the officers rolled him
   over” into a recovery position. 

. The officers realized that Castillo
   “appeared to be unconscious” and immediately “rushed [him] to the
   hospital.” 

 at *2–4.
          By contrast, here, Dillard arrived on the scene to observe Timpa
   handcuffed on the ground—a factor that he was required to consider when
   determining how much force was reasonably necessary to prevent Timpa
   evading arrest or posing a threat of harm. See Darden, 

.
   Whereas we held that the officer in Castillo reasonably perceived the raising
   of a beer bottle as threatening, here, Dillard testified that he did not perceive
   Timpa was aiming to injure the Officers by kicking his legs. Whereas the
   officers placed Castillo in a recovery position as soon as he was restrained and
   subdued, Dillard failed to place Timpa in the recovery position for at least
   five minutes after he was restrained and subdued. And whereas the officers
   sought medical attention as soon as they realized that Castillo was
   nonresponsive, Dillard failed to seek medical attention for an additional three
   minutes after he recognized that Timpa was unconscious.
          The Officers’ citation to Wagner v. Bay City fares no better. See 

 (5th Cir. 2000). There, Gilbert Gutierrez initiated a violent physical



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                                    No. 20-10876


   altercation with the defendant-officers—“swinging his fists[] [and] striking”
   them. 

. The officers responded by using pepper spray and placing
   Gutierrez in the prone position with bodyweight force on his back while they
   applied handcuffs. 

. Once restrained, the officers placed Gutierrez
   face down in the prone position in the patrol car to be transported to jail. 

   at 323–24. We held that the use of force was reasonable because Gutierrez
   had violently continued to resist arrest during the officers’ use of force and
   “there were no apparent physical signs that Gutierrez was substantially at
   risk” of asphyxiation. 

.
          Wagner did not speak to the use of force at issue here—a prone
   restraint with bodyweight force while Timpa was restrained and subdued.
   See 

. Unlike Gutierrez, Timpa never engaged the Officers in
   a violent altercation; rather, he was already handcuffed by the time that
   Dillard arrived on the scene. In Wagner, the defendant-officers responded to
   Gutierrez’s diminished resistance by removing their bodyweight from his
   back. See 

. Here, Dillard continued to exert asphyxiating force
   by kneeling on Timpa’s upper back long after he had gone limp. And unlike
   the absence of physical signs of substantial risk of asphyxiation in Wagner,
   Dillard was aware that Timpa was obese and had used cocaine, which
   exacerbated the risk of asphyxiation.
          Neither Wagner nor Castillo stands for a per se rule that the use of a
   prone restraint is objectively reasonable so long as the subject is resisting.
   Like any other tool of control, a prone restraint may rise to unconstitutional
   force depending on when and how it is used. See Aguirre, 995 F.3d at 411–12,
   424 (Jolly, J., concurring), 424 (Higginson, J., concurring) (holding the use
   of a maximal prone restraint with bodyweight pressed against a subject’s
   torso and legs constituted excessive force in violation of the Fourth
   Amendment); Darden, 

 (holding it was objectively
   unreasonable for an officer to “force[] . . . an obese man . . . onto his



                                           25
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                                    No. 20-10876


   stomach, push[] his face into the floor, and pull[] [his] hands behind his
   back” where the arrestee was not “actively resisting” arrest); Simpson v.
   Hines, 

 (5th Cir. 1990) (holding the use of a prone restraint
   with bodyweight force pressed on a pre-trial inmate’s back and neck
   constituted “grossly disproportionate” force in violation of the Fourteenth
   Amendment).
          Here, a prone restraint was used in tandem with Dillard’s body weight
   for over fourteen minutes. If a jury were to find that Timpa was subdued and
   nonthreatening by nine minutes into the restraint, then the continued use of
   force for five additional minutes was necessarily excessive. Cf. Aguirre, 

 (Jolly, J., concurring) (denying qualified immunity as to the last
   two minutes of a maximal prone restraint); Roque v. Harvel, 

,
   335–36 (5th Cir. 2021) (granting qualified immunity for the first shot fired by
   an officer, but denying as to the second and third shots fired two and four
   seconds later, respectively); Cooper, 

 (denying qualified
   immunity as to the final one-to-two minutes of a dog bite). We recognize that
   our police officers are often asked to make split-second judgments about the
   use of force, but the Constitution demands that officers use no more force
   than necessary and “hold[s] [them] accountable when they exercise power
   irresponsibly.” Pearson v. Callahan, 

 (2009). Because the
   state of the law in August 2016 had clearly established that the continued use
   of force against a restrained and subdued subject violates the Fourth
   Amendment, Defendant-Officer Dillard is not entitled to qualified immunity.
                                        IV.
          We now consider the bystander liability claims against Officers
   Dominguez, Vasquez, Mansell, and Rivera. Within the Fifth Circuit, “[a]n
   officer is liable for failure to intervene when that officer: (1) knew a fellow
   officer was violating an individual’s constitutional rights, (2) was present at




                                         26
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                                     No. 20-10876


   the scene of the constitutional violation, (3) had a reasonable opportunity to
   prevent the harm but nevertheless, (4) chose not to act.” Bartlett, 

. The Plaintiffs again bear the burden to demonstrate that the state of
   the law in August 2016 clearly established that “any reasonable officer would
   have known that the Constitution required them to intervene” in this
   circumstance. 

.
          Plaintiffs contend that Hale v. Townley provided fair notice to
   Dominguez, Vasquez, Mansell, and Rivera of their constitutional duty to
   intervene. See 

 (5th Cir. 1995). In Hale, we held that “an officer
   who is present at the scene and does not take reasonable measures to protect
   a suspect from another officer’s use of excessive force may be liable under
   section 1983.” 

. There, a defendant-officer “stood by and laughed”
   while another officer assaulted Billy Hale. 

. We agreed that liability
   under § 1983 attaches when a bystander-officer “had a reasonable
   opportunity to realize the excessive nature of the force and to intervene to
   stop it.” Id. at 919. The officers had a reasonable opportunity to intervene
   because they were “present at the scene” and their laughter supported an
   inference of “acquiescence in the alleged use of excessive force.” Id.
          We begin with Vasquez and Dominguez. It is undisputed that each
   Officer stood mere feet away from Timpa throughout the fourteen-minute
   duration of the restraint. Each Officer was trained to “ensure that[,] as soon
   as subjects are brought under control, they are placed in an upright
   position . . . or on their side.” Both testified that they were aware of the risks
   of holding an arrestee in the prone restraint position. The Officers do not
   contend that Vasquez or Dominguez lacked reasonable opportunity to
   intervene. Indeed, both officers stood by, observed Timpa suddenly lose
   consciousness, expressed surprise, and then made jesting comments. That
   both officers “stood by and laughed” while Dillard continued to kneel on an
   incapacitated arrestee supports an inference of “acquiescence in the alleged



                                          27
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                                       No. 20-10876


   use of force.” Hale, 

. Questions of fact preclude summary
   judgment as to the bystander liability claims against Vasquez and Dominguez.
          We now turn to Supervising Officer Mansell and Rivera. Bystander
   liability is available only when an officer is present during an alleged
   constitutional violation. See Bartlett, 

. The Officers contend
   that Mansell and Rivera were absent when Timpa became subdued and thus,
   neither officer can be liable for failing to intervene. The record supports that
   Rivera left the scene approximately two-and-a-half minutes before Timpa
   stopped moving his legs and that he remained absent until after Dillard
   released the restraint. Rivera thus lacked a reasonable opportunity to
   intervene and is entitled to qualified immunity.
          Mansell presents a tougher case. Thirty-four seconds after Timpa
   became subdued, he returned to his patrol car “a few feet away” and sat
   “with the car door open” while he ran a check on Timpa’s license. He
   testified that he did not hear Vasquez and Dominguez mock Timpa for losing
   consciousness. But he was observing Timpa for the critical half-minute when
   Timpa suddenly lost consciousness. Moreover, the record supports an
   inference that Mansell was aware Timpa had become incapacitated. When
   Timpa lost consciousness, Dominguez said to Mansell: “So what’s the plan?
   You’re [in charge] out here, sir.” Mansell responded that the officers should
   “strap [Timpa] to the gurney” and then made jesting comments before
   stepping away to check Timpa’s license. A jury could find that Mansell
   remained present on the scene and acquiesced in the violation of Timpa’s
   Fourth Amendment rights.
          Genuine disputes of material fact preclude summary judgment on the
   claims of bystander liability against Officers Mansell, Dominguez, and
   Vasquez. Summary judgment was properly granted to Officer Rivera.
                                   *        *         *




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                                     No. 20-10876


          We REVERSE the district court’s grant of summary judgment on
   the claim of excessive force against Officer Dillard and the claims of
   bystander liability against Officers Mansell, Vasquez, and Dominguez.
          We AFFIRM the district court’s grant of summary judgment on the
   claim of bystander liability against Officer Rivera.




                                          29