FILED
United States Court of Appeals
Tenth Circuit
October 21, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
GLENN WEIGEL and DAVID WEIGEL,
individually and as co-personal representatives
of the ESTATE OF BRUCE JAMES WEIGEL,
Deceased,
Plaintiffs-Appellants/Cross-Appellees,
v.
JOHN K. BROAD, individually; and DEVAN Nos. 05-8094
HENDERSON, individually, 05-8102
Defendants-Appellees/Cross-Appellants.
THE WYOMING HIGHWAY PATROL;
COLONEL JOHN COX, individually and in his
official capacity; and JOHN DOES I-X,
individually and in their official capacities,
Defendants.
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 04-CV-355-J)
Larissa A. McCalla, The Spence Law Firm, LLC, Jackson, Wyoming (G. Bryan
Ulmer III, Lawyers & Advocates for Wyoming, Jackson, Wyoming, with her on
the briefs), for Plaintiffs-Appellants/Cross-Appellees.
Christine Cox, Assistant Attorney General (Patrick J. Crank, Wyoming Attorney
General, and John W. Renneisen, Deputy Attorney General, with her on the
briefs), State of Wyoming, Cheyenne, Wyoming, for Defendants-Appellees/Cross-
Appellants.
Before HARTZ, SEYMOUR, and O’BRIEN, Circuit Judges.
SEYMOUR, Circuit Judge.
Plaintiffs Glenn Weigel and David Weigel filed this action against
Wyoming Highway Patrol Officers John K. Broad and Devan Henderson, and
their supervisor, John Cox, individually. Plaintiffs make claims of failure to train
and excessive force under 42 U.S.C. § 1983 and state negligence law. The claims
stem from the death of their brother, Bruce Weigel, who died after an altercation
with Troopers Broad and Henderson. Defendants moved for summary judgment,
asserting qualified immunity. In concluding defendants were immune from suit,
the district court held that while plaintiffs could show defendants violated Mr.
Weigel’s Fourth Amendment right to be free from unreasonable search and
seizure, they could not show the troopers’ conduct was objectively unreasonable
in light of clearly established law. The court therefore granted defendants’
motion for summary judgment. Because the standard for qualified immunity
under Wyoming law is less stringent, the court denied defendants’ motion for
summary judgment as to the state law claims. The court certified the § 1983
claims for interlocutory appeal pursuant to Federal Rules of Civil Procedure
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54(b), and stayed the matter pending appeal. We construe the court’s certification
order to only permit an appeal from the summary judgment entered on the § 1983
claims brought against Officers Henderson and Broad and our reference to
defendants in this opinion refers only to them. On appeal, plaintiffs argue the
district court wrongly decided the second prong of the qualified immunity test.
Defendants cross-appeal, contending the court incorrectly decided the first prong
of the qualified immunity test.
We take jurisdiction pursuant to 28 U.S.C. § 1291 and reverse the district
court’s grant of summary judgment as to plaintiffs’ § 1983 claims because we
conclude there are questions of fact as to the applicability of qualified immunity.
I
“In reciting the facts of this case, we view the evidence in the light most
favorable to the non-moving party, as is appropriate when reviewing a grant of
summary judgment.” Fuerschbach v. Southwest Airlines Co., 439 F.3d 1197,
1201 n.1 (10th Cir. 2006) (citing F ED . R. C IV . P. 56(c)).
On the morning of December 20, 2002, Wyoming Highway Patrol Troopers
Broad and Henderson were both en route to the Wyoming port-of-entry on
Interstate 25. In order to reach the port, the troopers exited I-25 southbound and
turned around in the median to enter I-25 northbound. Trooper Broad entered
I-25 northbound first, followed by Trooper Henderson. Just after Trooper
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Henderson entered the highway, Bruce Weigel struck Trooper Broad’s car from
behind. After the collision, Mr. Weigel’s car careened through the median strip
and re-entered I-25 south. Mr. Weigel’s vehicle came to a rest on the left
shoulder of the I-25 southbound lanes. Trooper Broad’s vehicle stopped on the
left shoulder of I-25 northbound, and Trooper Henderson pulled over to the right
shoulder of I-25 northbound.
Trooper Broad radioed to dispatch that there had been an accident. Records
indicate that call was made at 7:50 a.m. Trooper Broad approached Mr. Weigel’s
vehicle on foot to assess Mr. Weigel’s injuries, if any. Mr. Weigel denied the
need for an ambulance. Because it was department policy to notify a supervisor
when an officer was involved in a crash, Trooper Broad radioed for his patrol
supervisor. Troopers cannot work a crash in which they are involved, so Trooper
Henderson agreed to be responsible for making the accident report.
While the report was being made, both Troopers Broad and Henderson
asked Mr. Weigel about the cause of the accident. Mr. Weigel said he believed
his vehicle’s steering linkage had come loose or broken. Trooper Henderson then
asked Mr. Weigel to produce his driver’s license, vehicle registration, and
insurance, but he was only able to produce his vehicle registration and insurance.
While speaking with Mr. Weigel, Trooper Henderson smelled alcohol on his
breath. Trooper Broad agreed Mr. Weigel’s breath smelled of alcohol. Believing
Mr. Weigel’s possible inebriation may have contributed to the accident, Trooper
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Henderson asked Mr. Weigel if he would submit to a field sobriety test and he
agreed to do so. Mr. Weigel and Trooper Henderson then approached the
interstate to return to Trooper Henderson’s patrol car. Trooper Henderson
“noticed a van coming toward [them]. [He] told the subject to wait before
crossing the Interstate or he would get hit. [Mr. Weigel] looked at [him] [and]
continued to walk across the Interstate. [He] then told [Mr. Weigel] once again to
get back where [he] was and stay out of traffic. [Mr. Weigel] took a few steps
back toward him, looked at him, [and] then looked at the van [and] ran straight
out in front of the van.” Aplt. App., vol. II at 333-34. Mr. Weigel was struck in
the chest by the sideview mirror of the passing van. Seeing that Mr. Weigel was
hit, Trooper Broad radioed for an ambulance. Records indicate this call was made
at 7:54 a.m. Mr. Weigel continued his attempt to cross the interstate despite the
blow. When Mr. Weigel fled, Trooper Henderson thought “he [was] trying to
commit suicide because the van [was] right there and me and him [could] both see
it.” Id. at 396. Other witnesses generally described Mr. Weigel’s behavior as
“strange,” “bizarre,” “odd,” id. at 619, “not normal,” id. at 652, and “erratic.”
Id. at 638.
Concerned for the safety of Mr. Weigel and the public, Trooper Henderson
followed Mr. Weigel, tackled him, and wrestled him to the ground in a ditch
alongside the highway. A further struggle ensued, involving Mr. Weigel, Trooper
Henderson, Trooper Broad, and, eventually, bystanders. Accounts of the struggle
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are conflicting, but it is generally agreed that Mr. Weigel fought vigorously,
attempting repeatedly to take the troopers’ weapons and evade handcuffing.
In the midst of the melee, Trooper Henderson put Mr. Weigel in a choke
hold. Although Trooper Broad then got ahold of one of Mr. Weigel’s arms, id. at
336, Mr. Weigel continued to resist and fight. At that point, the troopers solicited
assistance from bystanders gathered near Mr. Weigel’s vehicle. Responding to
the call for help, Dana Stickley grabbed a downed fencepost and headed across
the interstate to assist the officers. Because Trooper Broad had secured the
second handcuff just as Mr. Stickley arrived, he did not club Mr. Weigel with the
fencepost. Id. at 355. Even handcuffed, Mr. Weigel continued to struggle, so Mr.
Stickley lay across the back of Mr. Weigel’s legs. The troopers maintained Mr.
Weigel in a facedown position. Trooper Broad applied pressure to Mr. Weigel’s
upper body, including his neck and shoulders, by using either one or both knees
and his hands. See id. at 379 (“But I do not know if I had – I’m unsure whether
or not I had one or two knees on him.”). Trooper Henderson straddled Mr.
Weigel’s upper thighs and buttocks and held Mr. Weigel’s arms in place. At
some point, another bystander began binding Mr. Weigel’s feet with plastic
tubing or cord found in his vehicle, while Mr. Stickley remained on Mr. Weigel’s
legs. With Trooper Broad positioned on Mr. Weigel’s upper torso, Mr. Stickley
positioned on top of Mr. Weigel’s legs, Mr. Weigel’s hands cuffed and his feet
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bound or being bound, 1 Trooper Henderson went to his vehicle to warm his hands.
Mr. Stickley stayed on Mr. Weigel’s legs until it was determined Mr. Weigel was
in cardiac arrest. Aplt. App., vol. III at 645.
In his initial report to a police investigator, Trooper Henderson indicated
that Mr. Weigel was subdued before he left him. “Trooper Henderson said the
driver was laying on his stomach with his head turned to the side, legs straight out
and just quit struggling . . . . Trooper Henderson went to his patrol vehicle to
radio for additional assistance and obtain his coat and gloves.” 2 Id., vol. II at
340-41. In his deposition account of the event, Trooper Henderson testified he
would not have returned to his vehicle “[i]f Mr. Weigel posed a safety risk to the
safety of [him] or the other witnesses standing around or Trooper Broad.” Id. at
406. He further stated he “felt confident with the witnesses around [Mr. Weigel]
that if the suspect tried to get up that they would keep him down . . .” Id. at 425.
1
Trooper Henderson offered contradictory testimony as to when Mr.
Weigel’s feet were bound. When first asked, he said that they were bound when
he went to his patrol car. Aplt. App., vol II. at 404. He later said he did not
remember if Mr. Weigel’s feet were tied when he left the immediate scene but he
“noticed that they were tied” when he returned. Id. at 406.
2
The dissent maintains that during the time Trooper Henderson returned to
his vehicle “Weigel continued to struggle,” dissent at 6. Trooper Henderson’s
own statement to the police investigator belies this assertion. The dissent
maintains this contradictory statement cannot create a genuine issue of material
fact as to when Mr. Weigel quit struggling because it is hearsay. Dissent at 18-19
n. 15. However, under Federal Rule of Evidence 801(d)(2)(A), Henderson’s
statement is an admission of a party opponent and is therefore not hearsay. See
Plotke v. White, 405 F.3d 1092, 1094 & n. 1 (10th Cir. 2005).
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When Trooper Broad was asked in his deposition, “[D]id you feel comfortable
that you could control [Mr. Weigel] without Mr. Henderson,” he replied, “I think
I did with the witnesses still holding down his lower body.” Id. at 358.
One witness testified that Mr. Weigel ceased to struggle at one or two
points throughout the event. See id., vol. III at 618 (“[T]here was one, what I
recall sort of a major time when [Mr. Weigel] quit struggling and then the
situation seemed to be completely [diffused], . . . and then he started to try to get
up and move around again, and that’s when the officer said don’t struggle, don’t
get up.”) The witness viewed the situation as under control when Trooper
Henderson went back to his car. Id. at 620. When Trooper Broad was asked how
long Mr. Weigel struggled before he completely stopped, he responded: “Oh, after
he was handcuffed? I don’t know. A minute, minute and a half.” Id. at 358.
Trooper Henderson estimated his vehicle was approximately twenty feet
from Mr. Weigel, Trooper Broad, and Mr. Stickley. While in the car, Trooper
Henderson shut the door, turned on his heater, and warmed his hands. One
witness testified Trooper Henderson made a radio call while in his vehicle. While
dispatch records show a person at the scene radioed dispatch at 7:57 a.m. with
information that the struggle had subsided, Trooper Henderson does not remember
making this call. When Trooper Henderson returned to the immediate scene,
Trooper Broad told him he believed Mr. Weigel had stopped breathing. The
Troopers rolled Mr. Weigel on to his back and determined that he was in full
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cardiac arrest. A call to dispatch reporting this was made at approximately 8:00
a.m. Resuscitation began after a CPR mask was located, but the attempts to
resuscitate Mr. Weigel were unsuccessful. The autopsy revealed the most likely
cause of Mr. Weigel’s death was “mechanical asphyxiation caused by inhibition
of respiration by weight applied to the upper back.” Aplt. App., vol. I at 185; vol.
II at 472.
The risk of such asphyxiation should have been familiar to Troopers Broad
and Henderson. Numerous training materials provided to the troopers addressed
the risks of putting weight on an individual’s back when the person is lying on his
stomach. During the troopers use-of-force training at the Wyoming Law
Enforcement Academy (WLEA), they were provided with extensive written
materials, oral lectures, and audiovisual presentations regarding the dangers of
Sudden Custody Death Syndrome and positional asphyxiation. Aplt. App., vol. I
at 109-29. These documents discuss the phenomenon of sudden custody death
and provide direction in avoiding the death of an arrestee. The materials
repeatedly warn that putting weight on the upper torso of a person may cause
positional asphyxiation. For example, one document provides the following two
relevant guidelines for preventing deaths in custody: “[1)] As soon as the subject
is handcuffed, get him off his stomach. Turn him on his side or place him in a
seated position. [2)] If he continues to struggle, do not sit on his back. Hold his
legs down or wrap his legs with a strap.” Id. at 111.
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Another training document provided to the troopers regarding sudden in-
custody death discusses the extra care that should be taken with detainees who
have special needs. Id. at 128. “Special needs” prisoners are those that
“violently resist arrest or try to assault officers, . . . are impaired by alcohol or
other drugs, . . . breathe and sweat heavily and exhibit a pallid skin, . . . are
engaged in incoherent and irrational conduct or speech, . . . [or] are overly obese
and who are known to have a medical condition.” Id. Troopers Broad and
Henderson also viewed a powerpoint presentation on in-custody deaths. Id. at
194. One slide explained that in-custody deaths “tend to share elements which
occur in a basic sequence: subjects display bizarre or frenzied behavior[;] almost
always, subjects are intoxicated by drugs and/or alcohol[;] [there is a] violent
struggle with police[;] and police use force and employ a type of restraint.” Id.
Informing on the “do’s and don’ts [of] positional asphyxia,” the slides stated,
“[a]s much as possible, AND AS SOON AS POSSIBLE, relieve the subject of
heavy weight used for control[;] Don’t misinterpret a suspect’s struggle for
oxygen as continued resistance[; and] [a]s soon as possible get the person out of
the prone position, on his/her side, or seated in [an] upright position[.]” Id. at
197.
The troopers also viewed a training video on avoiding the risks associated
with positional asphyxiation. The video described the physiology of breathing
and explained what happens when weight is placed on the back of a person in a
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prone position. The video admonishes law enforcement to be aware of the risks
of weight applied to the back of a prone suspect and instructs them to roll a
suspect off of his stomach and onto his side as soon as he is cuffed. Aplt. App,
vol. III at 518. The demonstration of what to do once a person is subdued is
precise: get the person off of his belly.
Finally, the troopers testified they had an understanding of the cause of
positional asphyxiation. For example, when asked of his understanding of the
term positional asphyxiation, Trooper Broad stated, it “is basically when
somebody’s face down and—and pressure is applied to their—back or their upper
body, upper torso and it basically restricts them from breathing.” Aplt. App., vol.
II at 365.
II
We review de novo the district court’s grant of summary judgment based on
qualified immunity, applying the same legal standard used by the district court.
Lawmaster v. Ward, 125 F.3d 1341, 1346 (10th Cir.1997). Summary judgment is
appropriate only if “there is no genuine issue as to any material fact and . . . the
moving party is entitled to a judgment as a matter of law.” F ED . R. C IV .P. 56(c).
“We view the evidence and draw reasonable inferences therefrom in the light
most favorable to the nonmoving party.” Lawmaster, 125 F.3d at 1346.
Qualified immunity is an affirmative defense to an excessive force claim.
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The doctrine of “[q]ualified immunity is designed to protect public officials who
act in good faith, on the basis of objectively reasonable understandings of the law
at the time of their actions, from personal liability on account of later-announced,
evolving constitutional norms.” Pierce v. Gilchrist, 359 F.3d 1279, 1299 (10th
Cir. 2004). When a defendant raises the qualified immunity defense on summary
judgment, plaintiff must first “demonstrate that the defendant’s actions violated a
constitutional or statutory right.” Nelson v. McMullen, 207 F.3d 1202, 1206 (10th
Cir. 2000) (quotation omitted). “[A]fter identifying the constitutional right[s]
allegedly violated, courts must determine whether the conduct was objectively
reasonable in light of clearly established law at the time it took place.” Pierce,
359 F.3d at 1297. As articulated by the Supreme Court, “[i]f no constitutional
right would have been violated were the allegations established, there is no
necessity for further inquiries concerning qualified immunity. On the other hand,
if a violation could be made out on a favorable view of the parties’ submissions,
the next, sequential step is to ask whether the right was clearly established.”
Saucier v. Katz, 533 U.S. 194, 201 (2001) (emphasis added).
Constitutional Violation
Following Saucier, we first determine on the facts offered in support of
plaintiffs’ claim whether Troopers Broad and Henderson violated the
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constitutional prohibition against the use of excessive force. 3 Like the district
court, we conclude they did.
“[A]ll claims that law enforcement officers have used excessive force . . .
in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen
should be analyzed under the Fourth Amendment and its ‘reasonableness’
standard.” Graham v. Connor, 490 U.S. 386, 395 (1989); Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1187-88 (10th Cir. 2001). The “inquiry
in an excessive force case is an objective one: the question is whether the
officers’ actions are objectively reasonable in light of the facts and circumstances
confronting them, without regard to underlying intent or motivation.” Graham,
490 U.S. at 388. Reasonableness is evaluated under a totality of the
circumstances approach which requires that we consider the following factors:
3
In defendants’ cross-appeal, they assert the district court erred in holding
that the troopers “unreasonably applied excessive force, in violation of the Fourth
Amendment.” Aplt. App., vol. III at 718. Plaintiffs contend we have no
jurisdiction over the cross-appeal, arguing the district court only certified for
appeal the issue of whether a lack of clearly established law shielded defendants
from suit. We disagree. Although Rule 54(b) permits only those claims which
the district court has declared final to be appealed separately, the rule provides
for appeal of an entire claim, not certain issues within a claim. See F ED . R. C IV .
P. 54(b) (court may direct entry of “a final judgment as to one or more . . .
claims”). In granting plaintiffs permission to appeal interlocutorily, the district
court necessarily certified for appeal plaintiffs’ entire § 1983 claim, the validity
of which is part of the qualified immunity analysis. Defendants’ cross-appeal is
thus better characterized as simply an argument urging us to affirm the district
court’s decision; in effect, defendants contend the district court reached the right
decision for the wrong reason.
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“the severity of the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Additionally,
“the ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Id. That perspective includes an “examination of the information
possessed by the [officers].” Anderson v. Creighton, 483 U.S. 635, 641 (1987).
“Where [an] officer has probable cause to believe that [a] suspect poses a
threat of serious physical harm, either to the officer or others, it is not
constitutionally unreasonable to prevent escape by using deadly force.” Carr v.
Castle, 337 F.3d 1221, 1227 (10th Cir. 2003). Here, plaintiffs assert that after the
threat of serious physical harm had passed, the troopers’ application of weight to
Mr. Weigel’s upper torso was constitutionally unreasonable. The district court
concluded as follows:
As alleged, [Mr.] Weigel was in custody at the time of his death.
[Mr.] Weigel’s death arguably came as a result of the pressure that
was applied to his upper torso after he was subdued, and no longer a
threat. He was in a prone position, and handcuffed. Indeed some
evidence suggests that his legs were bound together. The evidence
also suggests that the encounter had become stabilized to the point
that one of the Troopers left [Mr.] Weigel and went to his vehicle to
warm his hands—it is easily inferred that Trooper Henderson would
not have left Trooper Broad had he thought [Mr.] Weigel still posed
a credible threat to his safety. . . . An objectively reasonable police
officer . . . would not have continued to apply pressure to [Mr.]
Weigel’s upper torso, thereby denying him oxygen, after [Mr.]
Weigel was subdued and no longer a threat.
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Aplt. App., vol. III at 718.
A review of the facts in the light most favorable to plaintiffs persuades us
they give rise to a jury question regarding whether the officers acted reasonably.
First, there is evidence a reasonable officer would have known that the pressure
placed on Mr. Weigel’s upper back as he lay on his stomach created a significant
risk of asphyxiation and death. His apparent intoxication, bizarre behavior, and
vigorous struggle made him a strong candidate for positional asphyxiation. See
Cruz v. City of Laramie, 239 F.3d 1183, 1188-89 (10th Cir. 2001) (agitated state
constituted a clue to trained officer that pressure on the chest was likely to cause
positional asphyxia). And WLEA training materials made clear that the pressure
applied to Mr. Weigel’s upper torso would suffice to cause his suffocation.
Second, there is evidence that Mr. Weigel was subjected to such pressure
for a significant period after it was clear that the pressure was unnecessary to
restrain him. The defendants make no claim that once Mr. Weigel was
handcuffed and his legs were bound, he still would pose a threat to the officers,
the public, or himself unless he was maintained on his stomach with pressure
imposed on his upper back. Yet there was evidence that when Trooper Henderson
returned to his vehicle to warm his hands, Mr. Weigel was handcuffed, his feet
were bound, and Mr. Stickley was lying across his legs. See, e.g., Sallenger v.
Oakes, 473 F.3d 731, 740 (7th Cir. 2007) (officer’s departure from struggle raised
question of fact as to degree of control over subject after he was cuffed.). There
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is also evidence that Mr. Weigel was maintained in that position for about three
minutes: the time it took Trooper Henderson to walk to his vehicle, call the
dispatcher to report that Mr. Weigel was under control, warm his hands, and
return to Mr. Weigel. Making a reasonable inference that Trooper Henderson
promptly called the dispatcher to report on Mr. Weigel’s condition, the time
between Trooper Henderson’s two calls (three minutes) would be about the same
as the length of time that Mr. Weigel was held on his stomach with his legs
restrained, his hands cuffed, and his upper back held down by pressure from
Trooper Broad. 4
4
Trooper Henderson makes no argument that his liability should be
addressed differently than that of Trooper Broad because he was in his car when
Mr. Weigel went into cardiac arrest. Moreover, as we recently recognized in
Vondrak v. City of Las Cruces, 535 F.3d 1198, (10th Cir. 2008), it is clearly
established
that all law enforcement officials have an affirmative duty to
intervene to protect the constitutional rights of citizens from
infringement by other law enforcement officers in their presence. An
officer who fails to intercede is liable for the preventable harm
caused by the actions of the other officers where that officer observes
or has reason to know: (1) that excessive force is being used, (2) that
a citizen has been unjustifiably arrested, or (3) that any constitutional
violation has been committed by a law enforcement official. In order
for liability to attach, there must have been a realistic opportunity to
intervene to prevent the harm from occurring. Whether an officer had
sufficient time to intercede or was capable of preventing the harm
being caused by another officer is an issue of fact for the jury unless,
considering all the evidence, a reasonable jury could not possibly
conclude otherwise.
Id. at __, 2008 WL 2967656 at 10 (quoting Anderson v. Branen, 17 F.3d 552, 557
(2d Cir. 1994)) (citations omitted); see also Mick v. Brewer, 76 F.3d 1127, 1136
(continued...)
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In short, there is evidence that for three minutes the troopers subjected Mr.
Weigel to force that they knew was unnecessary to restrain him and that a
reasonable officer would have known presented a significant danger of
asphyxiation and death. If true, this constitutes an unreasonable use of force
under the Fourth Amendment. See Gutierrez v. City of San Antonio, 139 F.3d
441, 449 (5th Cir. 1998) (“material dispute of fact exists as to whether Gutierrez
posed a threat of death or serious bodily injury to the officers or to others,” in
hog-tying excessive force case).
Clearly Established Law
The district court also held that defendants violated Mr. Weigel’s Fourth
Amendment rights. But the court relieved them of liability on the ground that the
law they violated was not clearly established at the time of the incident. We
disagree.
The question before us is whether the violation involved a clearly
established right about which a reasonable person would have known.
“Ordinarily, in order for the law to be clearly established, there must
be a Supreme Court or Tenth Circuit decision on point, or the clearly
established weight of authority from other courts must have found
the law to be as the plaintiff maintains.” The plaintiff is not required
to show, however, that the very act in question previously was held
4
(...continued)
(10th Cir. 1996).
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unlawful in order to establish an absence of qualified immunity.
Cruz, 239 F.3d at 1187 (quoting Medina v. City and County of Denver, 960 F.2d
1493, 1498 (10th Cir. 1992) (footnote omitted).
The district court compared the facts of Cruz, where the decedent was hog-
tied, to the facts of this case and concluded there was no clearly established law
prohibiting the troopers’ actions because of the dissimilarity between the factual
scenarios. In Cruz, Wyoming police officers responded to a complaint of a naked
man running on the exterior landing of an apartment building. Id. at 1186. When
the officers arrived, Mr. Cruz, the man on the landing, was jumping up and down
and kicking his legs in the air. When he descended from the landing, the officers
wrestled him to the ground and handcuffed him. They applied a nylon restraint to
his ankles to abate his continued struggle. Then a metal clip was used to fasten
the wrist and ankle restraints together, a restraint technique known as hog-tying.
Shortly thereafter, Mr. Cruz’s face blanched. He was rushed to the hospital,
where he was pronounced dead on arrival. Expert reports indicated that Mr.
Cruz’s death resulted from positional asphyxiation.
Although we held there was not clearly established law prohibiting the
officers’ actions at the time they encountered Mr. Cruz, we also made clear that
similar future conduct was prohibited. Specifically, we stated, “officers may not
apply th[e hog-tie] technique when an individual’s diminished capacity is
apparent.” Id. at 1188. To reach this conclusion, we not only evaluated hog-
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tying cases and the risks of that technique, we also generally discussed the known
dangers of “sudden custody death syndrome.” Id. at 1189. We made specific
note of “the relationship between improper restraints and positional
asphyxiation.” Id. In particular, we highlighted the “breathing problems created
by pressure on the back and placement in a prone position, especially when an
individual is in a state of ‘excited delirium.’ These breathing problems lead to
asphyxiation.” Id.
The district court believed that the type of restraint used in Cruz was
sufficiently different from that employed on Mr. Weigel that Cruz did not clearly
establish the unconstitutionality of defendants’ alleged actions. But our analysis
in this case of the constitutionality of the restraint of Mr. Weigel does not require
us to compare the facts of Cruz to the allegations here. It is based on more
general principles. The Fourth Amendment prohibits unreasonable seizures. We
do not think it requires a court decision with identical facts to establish clearly
that it is unreasonable to use deadly force when the force is totally unnecessary to
restrain a suspect or to protect officers, the public, or the suspect himself. Yet, as
explained above, there is evidence that this is what happened here: even after it
was readily apparent for a significant period of time (several minutes) that Mr.
Weigel was fully restrained and posed no danger, the defendants continued to use
pressure on a vulnerable person’s upper torso while he was lying on his stomach.
A reasonable officer would know these actions present a substantial and totally
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unnecessary risk of death to the person. As the Supreme Court has stated:
For a constitutional right to be clearly established, its contours must
be sufficiently clear that a reasonable official would understand that
what he is doing violates that right. This is not to say that an official
action is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say that in
light of pre-existing law the unlawfulness must be apparent.
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citations and internal quotations
omitted).
Cruz turns out to be highly relevant to this case, but not for its legal
teaching. Rather, the opinion was apparently the reason for the extensive WLEA
training on positional asphyxia that we describe above. The troopers’ training
instructor, Trooper Terry Vincent, testified he received a memorandum,
distributed state wide, discussing the Cruz decision. Aplt. App., vol. II at 484.
Trooper Henderson recalled Trooper Vincent posting “some case law in our
office” regarding hog-tying or positional asphyxiation called “Cruz versus
Wyoming or something like that.” Id. at 418. Trooper Broad testified he vaguely
remembered the decision in Cruz and understood it to be the reason that the
Wyoming Highway Patrol was prohibited from hog-tying detainees. Id. at 367.
If Cruz had not been handed down, perhaps Wyoming troopers would not
have received training on positional asphyxia and would be uninformed about the
danger. But the reasonableness of an officer’s actions must be assessed in light of
the officer’s training. The defendants’ training informed them that the force they
-20-
used upon Mr. Weigel produced a substantial risk of death. Because it is clearly
established law that deadly force cannot be used when it is unnecessary to restrain
a suspect or secure the safety of officers, the public, or the suspect himself, the
defendants’ unnecessary use of deadly force violated clearly established law.
We recognize the events leading up to Mr. Weigel’s death happened
quickly. We further acknowledge that, up to a point, the troopers were protecting
themselves and the public from Mr. Weigel and Mr. Weigel from himself. But we
are not addressing split second decisions by law enforcement officers to protect
themselves and the public. Nor are we stating that the troopers necessarily acted
unreasonably. If, however, the facts plaintiffs proffered are true and the jury
draws the inferences most supportive of plaintiffs’ position, then the law was
clearly established that applying pressure to Mr. Weigel’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. We
said this overtly, if not by strong and deducible inference, in Cruz. Moreover,
cases from other circuits have stated it is “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 constitutes
excessive force.” Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th
Cir. 2004). See also Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d
1052, 1061-62 (9th Cir. 2003); Gutierrez, 139 F.3d at 450-51. In these
-21-
circumstances, defendants are not entitled to qualified immunity at this stage of
the proceedings.
Accordingly, we REVERSE the district court’s order dismissing plaintiffs’
§ 1983 claims against the troopers on the basis of qualified immunity, and we
REMAND for further proceedings.
-22-
05-8094, 05-8102 - Weigel v. Wyoming Highway Patrol
HARTZ, Circuit Judge, concurring:
I concur in the result and all of Judge Seymour’s opinion except on one
point. I do not think that the defendants violated Mr. Weigel’s constitutional
rights before his legs were bound. In light of Mr. Weigel’s strength and previous
behavior, it was not, in my view, unreasonable of the officers to keep him in a
prone position with weight on his upper back so long as the only restraint on his
legs was the weight of a bystander sitting on them. Nevertheless, Trooper
Henderson initially testified that Mr. Weigel’s feet were bound when he went to
his patrol car; and a jury could find that Trooper Broad applied pressure to
Mr. Weigel’s upper back for as much as three minutes after his feet were bound.
That finding would support a verdict that Mr. Weigel was subjected to
unconstitutional force.
05-8094 & 05-8102 Weigel v. Broad, et. al.
J. O’BRIEN, dissenting.
The majority announces a very general rule—troopers may not subject a
detained person to prolonged force beyond that necessary to restrain him if a
reasonable trooper would have known the applied force presented a significant
danger of asphyxiation and death. It sounds remarkably like generic tort
law—“[N]egligence is conduct which falls below the standard established by law
for the protection of others against unreasonable risk of harm.” R ESTATEMENT
(S ECOND ) OF T ORTS § 282. It leaves the details to be sorted out after the fact by a
jury in an appropriate case. But an undifferentiated analysis of the facts should
not force a barely plausible case to go to trial. The district court correctly
concluded the law relating to positional restraint was not clearly established as
relevant to these facts, but it was first required by Saucier 1 to confront and decide
the constitutional issue. It did so, but incorrectly in my view. The majority
follows the same order of analysis and so shall I.
Reasonableness analysis compares threats and responses. Unless all of the
circumstances of the case are considered as a unitary whole the analysis fails.
Generalizations do little to inform the debate; focused and particularized attention
to the facts is required. This incident was short (slightly more than ten minutes)
1
Saucier v. Katz, 533 U.S. 194, 201 (2001).
and intense (almost from its inception the troopers were fighting with Weigel and
for a significant time literally fighting for their lives). Weigel’s acts, not those of
these troopers, escalated the violence to an extremely dangerous level. His
behavior fully justified the restraints employed as well as their duration. As the
fighting subsided the troopers continued to forcibly restrain (and monitor) the
handcuffed but still fighting Weigel for less than three minutes. The full extent
of the admittedly necessary positional restraints continued for only ten or fifteen
seconds after Weigel was actually subdued and no longer a threat. I am unwilling
to say the techniques employed here in the waning moments of a desperate fight
were unreasonable, even though they resulted in Weigel’s death.
I respectfully dissent from all aspects of the majority opinion. I would
reverse the district court’s conclusion that a constitutional violation occurred. In
the alternative the troopers are entitled to qualified immunity (as the district court
concluded).
“As the qualified immunity defense has evolved, it provides ample
protection to all but the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). Incompetence or a knowing
violation of law is a tough case to make and it hasn’t been made here. 2
2
“Although actions for damages provide an important remedy for
individuals injured by governmental officials’ abuse of authority, such actions
sometimes subject officials to costly and harassing litigation and potentially
inhibit officials in performing their official duties.” Medina v. Cram, 252 F.3d
(continued...)
-2-
“The entitlement [to qualified immunity] is an immunity from suit rather
than a mere defense to liability; and like an absolute immunity, it is effectively
lost if a case is erroneously permitted to go to trial.” Mitchell v. Forsyth, 472
U.S. 511, 526 (1985). Immunity principles can only be served by a wholesome
application of the trial judge’s gatekeeping responsibility at the summary
judgment stage. 3 The first step is to distill the record to uncontested facts and
contested material facts favorable to the party claiming injury. See Fed. R. Civ.
P. 56(c). But only genuine issues of contested material fact are entitled to
favored status. Scott v. Harris, – U.S.–, 127 S. Ct. 1769, 1776 (2007). The next
step is to examine the distillate—a case may proceed to trial only if the distilled
facts demonstrate (1) a violation of a constitutional right and (2) the violation has
been clearly established as a constitutional violation. Saucier, 533 U.S. at 201
(2001). “Where the record taken as a whole could not lead a rational trier of fact
2
(...continued)
1124, 1127 (10th Cir. 2001).
3
Gatekeeping responsibilities are always present, but they vary, tone and
tint. A motion to dismiss, for example, tests the sufficiency of pleadings. But
constrained only by Rule 11 of the Federal Rules of Civil Procedure and
28 U.S.C. § 1927, clever pleading is usually sufficient to pass that bar. Summary
judgment, on the other hand, tests facts, which are less malleable than allegations.
Enter the expert. A smorgasbord of experts with opinions to support almost any
theory is now available. The creative use of experts prompted restraints on their
testimony, superintended by the trial judge. See Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999); Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
Rigorous qualified immunity analysis, like other gatekeeping functions, helps
insure rational decisions based upon the rule of law.
-3-
to find for the [party claiming injury], there is no genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quotations omitted). “[M]etaphysical doubt as to the material facts” is not
enough. Id. at 586.
The denial of a meritorious motion for summary judgment is inappropriate;
as much so as summary judgment improvidently granted. To that end, we must
look at the undisputed facts as they might reasonably appear to the troopers in
this very brief and violent encounter. “‘[I]f officers of reasonable competence
could disagree’ about the lawfulness of the challenged conduct, . . . ‘qualified
immunity should be recognized.’” Gomes v. Wood, 451 F.3d 1122, 1136 (10th
Cir. 2006) (quoting Malley, 475 U.S. at 341).
I. Factual Background
The facts laid out by the majority are accurate as far as they go. But the
case is better understood when enriched with other undisputed facts.
When Henderson was chasing Weigel across northbound I-25, he saw two
tractor trailer trucks approaching. As he described it at his deposition: “At that
point I start chasing after [Weigel] in foot pursuit. And I notice that there [are]
two tractor-trailers taking up both lanes of I-25 northbound headed straight for us
. . . . I was scared that these tractors were going to hit both of us.” (R. Vol. II at
396.) In pushing Weigel out of the way of the trucks, Henderson tore the knee
out of his pants and took a “chunk out of [his] hand.” (R. Vol. II at 398.)
-4-
When Henderson tackled Weigel, they landed on the east side of
northbound I-25; Weigel got on top of Henderson and immediately attempted to
take his weapon. Weigel unsnapped the holster, placed his hands around the gun
and started to pull it out of the holster. When Henderson responded by pushing
the gun back into the holster, Weigel grabbed Henderson’s fingers and tried to pry
them from the gun. Broad then tackled Weigel. Weigel immediately reached for
Broad’s weapon, getting a hand on it. Broad responded by pressing down on his
gun “as hard as [he] could” with both hands. (R. Vol. II at 352.) Although the
troopers outnumbered Weigel they called for help. Two bystanders heard the
request. One was reluctant to assist after hearing one of the troopers yell “[h]e’s
trying to get my gun.” (R. Vol. III at 614.) A more intrepid soul, Stickley (bless
his heart), describing the situation as “[l]ike All Star Wrestling,” ran over to
assist, bringing a downed fence post as a weapon. (R. Vol. III at 644.) The
driver of the minivan whose passenger mirror struck Weigel asked his wife’s
advice. She responded, “No way. You stay here,” because she felt it was not
safe. (R. Vol. III at 635.)
Weigel was extremely strong; Stickley described Weigel as having
“superhuman strength.” (R. Vol. III at 652.) Henderson believed Weigel was
“stronger than anybody [he had] ever wrestled around with.” 4 (R. Vol. II at 400.)
After cuffing Weigel, both troopers were exhausted; Henderson was “nauseous”
4
Henderson was a high school wrestler.
-5-
from overexertion. (R. Vol. II at 408.) Even after being handcuffed, Weigel
continued to struggle—leading another witness, Winters, to tie (or attempt to tie)
his feet together. With Weigel positioned on his stomach, his hands and feet
restrained, Broad held down Weigel’s upper body with his hands and/or knees,
Henderson straddled Weigel’s buttocks and Stickley was on his legs. In spite of
those restraints Weigel still managed to pinch Henderson’s inner thighs and groin
area.
During Henderson’s trip to his patrol car Broad continued to restrain the
handcuffed Weigel, applying pressure to Weigel’s upper torso; Weigel’s feet were
being held down by Stickley. In spite of the restraints, Weigel continued to
struggle and fight. Eventually his feet were either tied or wrapped. Ten to fifteen
seconds after Weigel’s feet were bound, 5 Broad noticed Weigel had quit
breathing.
When Henderson returned to the immediate scene 6 Broad told him Weigel
had stopped breathing. The troopers initially believed he was faking. When
(after a few seconds) they rolled Weigel onto his back, he let out a large exhale,
5
Because the record is arguably debatable (see discussion, infra at 9-13)
about whether Weigel’s feet were actually tied or merely wrapped with a cord, I
use the term “bound.” In any event, his feet were only bound for fifteen seconds
before he stopped breathing.
6
Henderson and Broad both said Henderson was only gone for a few
seconds. For our purpose here I disregard their testimony, which appears to be at
odds with the radio traffic.
-6-
leading them to believe he had been holding his breath. Broad picked up some
snow and placed it in his eyes; Weigel did not blink. After repeating that action
and receiving no response, Broad checked Weigel’s pulse and was unable to
detect one.
At 8:00:51 A.M., ten minutes and nineteen seconds after Broad reported his
vehicle had been rear-ended (at 82 mph), three minutes and two seconds after
Henderson reported the situation diffused, and a few seconds after Weigel’s feet
were bound, Henderson returned to his vehicle and informed dispatch Weigel was
in full cardiac arrest.
II. Constitutional Violation
Unreasonable force claims are analyzed under the Fourth Amendment’s
objective reasonableness standard, Graham v. Connor, 490 U.S. 386, 395, 397
(1989), informed by the totality of the circumstances. Tennessee v. Garner, 471
U.S. 1, 8-9 (1985). “Because the test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical application, . . . its
proper application requires careful attention to the facts and circumstances of
each particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.”
Graham, 490 U.S. at 396 (citation and quotations omitted). “Although [any]
attempt to craft an easy-to-apply legal test in the Fourth Amendment context is
-7-
admirable, in the end we must still slosh our way through the factbound morass of
‘reasonableness.’” Scott, 127 S. Ct. at 1777-78.
“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Graham, 490 U.S. at 396. “The calculus of reasonableness must
embody allowance for the fact that police officers are often forced to make
split-second judgments--in circumstances that are tense, uncertain, and rapidly
evolving--about the amount of force that is necessary in a particular situation.”
Id. at 396-97.
The majority concedes Weigel was a safety risk from the time his vehicle
collided with Broad’s until he was handcuffed and his legs were bound. But,
considering the facts in a light most favorable to Weigel, it says the Fourth
Amendment was violated when “for three minutes the troopers subjected Mr.
Weigel to force that they knew was unnecessary to restrain him and that a
reasonable officer would have known presented a significant danger of
asphyxiation and death.” (Majority Op. at 17.) I disagree on all counts. On these
facts, considered as the Supreme Court has instructed, no reasonable jury could
conclude the force employed was unnecessary or that a reasonable trooper would
be aware of a significant risk of death to Weigel.
The majority fails to appropriately consider the totality of the
circumstances. It makes no allowance for the troopers’ assessment of the amount
-8-
of force required, contrary to Graham, 490 U.S. at 396-97. It improperly assumes
these troopers had sufficient notice of Weigel’s alleged susceptibility to
positional asphyxia. Finally, it overemphasizes the troopers’ positional asphyxia
training. The concurring opinion is inappropriately generous to the Estate in its
summary judgment analysis, a matter I will discuss before moving to my
disagreement with the majority opinion.
A. The concurring opinion
Judge Seymour says it was unreasonable for the troopers 7 to continue to
apply force to Weigel’s upper torso after his hands were cuffed and Stickley was
sitting on his legs. On the other hand the concurring opinion says Weigel’s
constitutional rights were not violated before his legs were bound (because of his
strength and past behavior). That said, it concluded a jury could find that “Broad
applied pressure to Mr. Weigel’s upper back for as much as three minutes after
his feet were bound” and Stickley was lying across his legs. (Hartz, J.
concurring.) The tipping point for this claimed constitutional violation is thus
exquisitely fine, requiring a very exacting, although tedious, record review. Such
a review is revealing.
7
Actually only Trooper Broad. Henderson left to warm his hands and
there is no claim of unreasonable force prior to his departure.
-9-
Winters, the person tying Weigel’s feet, said they were never tied and the
cord was around them (they were bound) for at most fifteen seconds. Specifically
he testified:
Q. So what did you do?
A. His feet were planted on the ground, so I slid the plastic tubing under
his legs, down around his ankles . . . it’s plastic tubing. It is rigid. All you
have to do is slide it under. Slide it under and started to cross the two to
form a knot and that’s when one of the officers indicated he had ceased
breathing.
****
Q. [H]ow much time had elapsed from the time you put that plastic tubing
under his legs until the time you heard the officers say he stopped breathing
or something to that effect?
A. It could only [have] been a matter of ten or 15 seconds. The time it
would take for somebody to slide something under, pull up the other side
and by watching a clock, ten, ten, 15 seconds max.
****
Q. . . . Did you ever get that plastic tubing tied?
A. Never did. Crossed the two ends, started to do that and that’s when
they said he had ceased breathing.
(R. Vol. III at 625-26 (emphasis added).)
Stickley, the man who was restraining Weigel’s legs, testified as follows:
Q. When you described assisting the officers to cuff this gentleman, you
said that you ended up laying across his legs and . . . trying to pull his arm
over. Is that your testimony?
A. Yeah. I’m not exactly – I know I was at his legs at some point, because
they wrapped the cable around his legs.
****
Q. The cable. Do you recall how many times it was wrapped around
[Weigel’s] ankles?
A. No, I don’t.
Q. Do you think it was more than once?
A. Yes.
****
-10-
Q. How long after the rope was tied around his feet did this gentleman
continue to struggle?
A. Just a matter of seconds.
(R. Vol. III at 647-48 (emphasis added).)
Similarly, Broad testified:
Q. [W]hen [Winters] comes with the strap . . . what does he do with it?
A. He just wraps it several times around his lower legs.
Q. Do you know if he tied it in a knot or anything like that?
A. I don’t recall him tying it at all. I think he just went around and around
several times.
(R. Vol. II at 356-57.)
So, the three witnesses present on scene, including the one who actually
attempted to tie Weigel’s feet, unequivocally said Weigel’s feet were never tied.
If his feet were considered bound (by being wrapped instead of tied), 8 the length
of time they were bound before he stopped breathing was at most fifteen seconds
(and he was rolled over within a few seconds after he stopped breathing).
The only contrary evidence came from Henderson. The concurrence
correctly says Henderson initially testified Weigel’s legs were tied before he left
to tend to his hands. But it doesn’t account for his other testimony from the same
deposition. This is what he said:
A. At that point I told Trooper Broad that I couldn’t feel my hands, and
that I was going to run to my car and grab my gloves.
Q. Now, . . . are Mr. Weigel’s legs tied together at this point?
8
Wrapped versus tied is not an insignificant point. Weigel’s demonstrated
strength and combativeness suggests a mere wrapping of his feet would not be
sufficient to incapacitate him.
-11-
A. Yes.
****
Q. So were his – this may be asked and answered. Were his feet tied
together when you got up?
A. I don’t remember. When I came back I noticed that they were tied.
(R. Vol. II at 404, 406 (emphasis added).)
The concurrence thinks Henderson’s equivocal testimony presents a factual
issue–whether Weigel’s feet were tied–sufficient to defeat qualified immunity and
send this case to a jury. Its conclusion about the length of time (three minutes)
Weigel’s feet were bound is even more tenuous. It says “a jury could find that
Trooper Broad applied pressure to Mr. Weigel’s upper back for as much as three
minutes after his feet were bound.” (Supra.) The only evidence to support that
statement is a combination of Henderson’s equivocal testimony (Weigel’s feet
were tied when he left for his car) and an inference drawn from the radio traffic
suggesting the elapsed time between the situation stabilized report and the cardiac
arrest report was three minutes and two seconds. 9 The time inference is
specifically refuted by two on scene witnesses who said Weigel stopped breathing
at most fifteen seconds (Winters) or a few seconds (Stickley) after his feet were
bound. If that state of the record is sufficient to create a sufficient issue of fact to
9
Assuming Henderson made the radio reports (he doesn’t remember doing
so) the elapsed time between them, three minutes and two seconds, included the
time it took for him to walk from his patrol car to the scene (about twenty feet),
the time it took for the troopers to determine whether Weigel was breathing
(monitor him, roll him over, put snow in his eyes, etc.) and the time it took for
Henderson to return to his vehicle and radio the cardiac arrest report. The elapsed
time had to be considerably less than three minutes.
-12-
defeat summary judgment this case represents a sea change in Rule 56 practice.
Henderson’s conflicting statements do not amount to a genuine issue of material
fact, particularly when contrary to the statements of two participating witnesses.
See Scott, 127 S. Ct. at 1776. “Where the record taken as a whole could not lead
a rational trier of fact to find for the [party claiming injury], there is no genuine
issue for trial.” Matsushita Elec. Indus. Co., 475 U.S. at 587 (quotations
omitted). “[M]etaphysical doubt as to the material facts” is not enough. Id.
The record supports no more than fifteen seconds of excessive force, if it
actually was excessive. As a matter of law, that cannot be unreasonable. But
ignoring the record and assuming Weigel’s hands were cuffed and feet bound for
nearly three minutes, the force used would still be reasonable under these
circumstances.
B. Totality of the circumstances
The district court segmented this case into two discrete events: (1) the
troopers’ attempts to get Weigel under control culminating in a knock down, drag
out fight (seven minutes) and (2) the actual restraint (three minutes). It then
analyzed each segment separately. The majority does the same. But
segmentation of facts and analysis is a form of “divide and conquer” decried in
United States v. Arvizu, 534 U.S. 266, 274 (2002) (“The [circuit] court’s
evaluation and rejection of seven of the listed factors in isolation from each other
-13-
does not take into account the ‘totality of the circumstances,’ as our cases have
understood that phrase.”). 10
The district court’s approach makes no allowance for the troopers’ high
level of excitement and exhaustion. Expecting a rational and appropriate
response in less than three minutes from one who has had virtually no time to
recover from a violent, potentially life threatening struggle is itself unreasonable.
It would have been folly for Broad to assume Weigel had given up the fight
simply because his struggle waned 11 or to assume the restraints would be
sufficient to prevent or contain another violent outburst if Weigel were rolled on
his side or permitted to sit up. Prudence would demand a more cautious
approach. Momentarily refusing to relinquish a hard won upper hand was not a
mistake. If it were, it is excusable unless the troopers’ conduct was
10
Arvizu, a criminal case, was discussing reasonable suspicion analysis.
Its totality of the circumstances discussion, however, would seem to be applicable
here. Garner, 471 U.S. at 8.
11
Even a casual observer of Middle Eastern politics recognizes that a
“cease fire” seldom has anything to do with capitulation or willingness to
negotiate; more often than not it is just a convenient ploy to rest and re-arm.
-14-
unreasonable. 12 The troopers’ conduct was not unreasonable considering all of
the facts in this brief, violent and fast-paced episode.
One of the witnesses who responded to the troopers’ calls for help testified
the entire event was “very fast;” “it was just continual” and described the
situation as “like a movie.” (R. Vol. III at 648-49.) The troopers did not have the
luxury of calm reflection. In fact, Broad testified he did not think of using his
pepper spray or baton because he “didn’t have time to think about stuff like that .
. .” and he “[n]ever had time” to consider calling for backup. (R. Vol. II at 354,
359.) He also stated he did not have time to evaluate Weigel’s mental state
because “[e]verything just happened too quickly . . . . [F]rom the moment
[Weigel] ran . . . from [Henderson] . . . to the time that he quit breathing he was
just fighting. We didn’t have time to think about anything.” (R. Vol. II at 378.)
Henderson agreed.
12
“The Fourth Amendment is not violated by an arrest based on probable
cause, even though the wrong person is arrested, Hill v. California, 401 U.S. 797,
91 S.Ct. 1106, 28 L.Ed.2d 484 (1971), nor by the mistaken execution of a valid
search warrant on the wrong premises, Maryland v. Garrison, 480 U.S. 79, 107
S.Ct. 1013, 94 L.Ed.2d 72 (1987).” Graham, 490 U.S. at 396; see also L.A.
County, Cal. v. Rettele, --U.S.--, 127 S. Ct. 1989 (2007) (per curiam) (holding
officers’ actions in executing search warrant at a house objectively reasonable
where officers ordered the residents (who were of a different race than the
suspects and unclothed) out of their bed and held them at gun point for slightly
more than two minutes before allowing them to dress; the officers, in the interest
of their safety, acted reasonably in first securing the room and ensuring other
persons were not nearby before allowing the residents to retrieve their clothes).
-15-
A global approach must also account for inherent danger. “In determining
the reasonableness of the manner in which a seizure is effected, we must balance
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.” Scott, 127 S. Ct. at 1778 (quotations omitted). In doing so, we
may consider the number of lives placed at risk, and by whom, as well as the
relative culpability of the actors. Id. From my count, Weigel placed the troopers’
lives in danger at least four times during the ten-minute encounter: (1) rear-
ending Broad’s vehicle at 82 mph; (2) running from Henderson across I-25 with
two tractor-trailer trucks approaching; (3) almost pulling Henderson’s gun from
its holster; and (4) trying to get Broad’s gun. He also endangered the lives of two
members of the public, as well as his own. On the other hand, the troopers’ acts
were appropriately restrained; they did not kick Weigel, utilize their batons or
pepper spray, or draw their weapons during the encounter. Rather, they (1)
tended to Weigel’s needs after his collision with Broad; (2) warned him of the
approaching minivan; (3) called for an ambulance after he was hit by the minivan
mirror; (4) placed their lives in danger by pushing him out of the way of
oncoming traffic; (5) attempted to take him into custody, partially for his own
safety, with basic wrestling moves and the use of restraint devices; and (6) never
left Weigel unmonitored. The cost-benefit analysis clearly tips in favor of the
troopers even though it resulted in Weigel’s death.
-16-
Sometimes officers act too quickly or too aggressively, thereby creating an
emergency rather than responding to one. 13 Not here. The danger to these
troopers and possibly others was real and immediate, almost palpable; Weigel,
alone, was the cause.
C. Officer perspective
The majority makes no allowance for the troopers’ assessment of the
amount of force required or the need for caution in relaxing the force, contrary to
Graham, 490 U.S. at 396-97. It is easy in hindsight and from the serenity of a
judge’s chambers to conclude a hiatus in the struggle meant the danger had passed
or the restraints in place were adequate; it is not so easy for the combatants,
whose assessment we are required to respect.
We must consider whether the troopers engaged in the fight could
reasonably conclude (respecting their assessment of the circumstances) Weigel
13
The reasonableness of an officer’s use of force depends not only on
whether the officer was in danger at the precise moment he used force but also on
whether the officer’s prior reckless and deliberate conduct precipitated or
exacerbated events, creating the need for such force. See, e.g., Jiron v. City of
Lakewood, 392 F.3d 410, 418 (10th Cir. 2004) (holding officer did not
unreasonably create need to shoot armed victim by attempting to coax victim out
of the bedroom instead of waiting for backup; “[h]ad [the officer] left [the victim]
in the bedroom, she risked [,inter alia,] the escape of an armed and agitated
suspect into the public . . . .”); Medina, 252 F.3d at 1132 (concluding officers did
not unreasonably create need to shoot armed victim by following him and
attempting to stop him rather than taking cover). “This approach is simply a
specific application of the ‘totality of the circumstances’ approach inherent in the
Fourth Amendment’s reasonableness standard.” Medina, 252 F.3d at 1132. Here
the troopers’ acts were reactive, not provocative. Weigel’s unprovoked
aggression cannot be excused and must not be minimized.
-17-
presented a risk sufficient to justify keeping him under control by continued
restraint. Despite being restrained by both troopers and Stickley, Weigel was able
to pinch Henderson’s groin. And while Weigel agreed when Broad told him to
“[s]top struggling because it wasn’t doing him any good,” he continued to
struggle. (R. Vol. II at 327.) The facts do not suggest the fight was over or, more
pertinent, a reasonable officer would think it was over.
Since Weigel continued to struggle while lying face down and restrained by
the troopers and Stickley, it would be reasonable for the troopers to conclude he
would resume the fight if turned on his side or sat up—positions from which he
could fight more effectively, particularly before his legs were tied. 14 Indeed, as
Henderson testified, once sat up, Weigel could have kicked or head-butted Broad
or the witnesses. Add to that spitting and biting. Because it was uncertain
whether Weigel would continue to resist, it was reasonable for Broad to keep him
restrained face down for a couple minutes rather than take the risk. See Rettele,
127 S. Ct. at 1993 (considering the fact officers did not restrain residents any
longer than necessary to secure their safety in concluding officers’ actions were
objectively reasonable); Scott, 127 S. Ct. at 1778 (because it was uncertain
14
And it should not matter that Stickley was on Weigel’s legs. Turning
Weigel over or allowing him to sit before his feet were tied would change the
status quo. Broad’s safety assessment must be credited, if reasonable. Given the
circumstances there is no reason for second guessing.
-18-
whether ceasing the pursuit of the suspect’s vehicle would eliminate the risk,
police were not required to “have taken that chance and hoped for the best”).
Henderson was asked if Weigel was under control when he left to warm his
hands. He said: “When I left to get my gloves, . . . he was still resisting.” (R.
Vol. II at 425.) 15 There was a follow-up question, “[W]as . . . there still a danger
15
Every witness, including the troopers, testified Weigel continued to
struggle (even after Henderson left the immediate scene) until he stopped
breathing. However, a highway patrol investigator interviewed Henderson after
the incident. According to the investigator’s notes Henderson said Weigel quit
struggling before he left to tend to his hands. Assuming the investigator
accurately reported Henderson’s unsworn statement it cannot be used against
Broad and it is insufficient to defeat summary judgment against Henderson.
Wright-Simmons v. City of Okla. City, 155 F.3d 1264, 1268 (10th Cir. 1998) (“It
is well settled in this circuit that we can consider only admissible evidence in
reviewing an order granting summary judgment . . . . Hearsay testimony cannot
be considered because a third party’s description of a witness’ supposed
testimony is not suitable grist for the summary judgment mill.”) (quotations
omitted).
The majority claims Henderson’s unsworn statement is not hearsay because
it constitutes an admission of a party opponent. See Fed. R. Evid. 801(d)(2) (“A
statement is not hearsay if . . .[t]he statement is offered against a party and is . . .
the party’s own statement . . . .). While technically an admission by Henderson,
the statement is little more than impeachment and therefore insufficient to
establish a factual dispute. See McMillian v. Johnson, 88 F.3d 1573, 1584 (11th
Cir. 1996); Firemen’s Fund Ins. Co. v. Thien, 8 F.3d 1307, 1312 (8th Cir. 1993).
The statement, if considered, is insufficient to defeat summary judgment in
favor of Henderson. If, as the Estate argues, the district court concluded, and the
majority holds, Henderson’s departure to warm his hands is the defining event
with respect to the issue of when Weigel was sufficiently under control to safely
warrant moving him, then Henderson can hardly be responsible for unreasonable
use of force during his absence.
In any event Henderson’s statement cannot be used against Broad because it
is not Broad’s statement, nor one he adopted, and there is no evidence of a
conspiracy or agency relationship. Fed. R. Evid. 801(d)(2); see also Robinson v.
Audi Nsu Auto Union Aktiengesellschaft, 739 F.2d 1481, 1487-89 (10th Cir. 1984).
-19-
to Mr. Weigel or Trooper Broad at that point?” (R. Vol. II at 425.) Henderson
answered, “Yes.” (R. Vol. II at 425.) The questions continued:
Q. Are you trained to leave a situation when someone is posing a
threat to head butt or kick or get up and is a danger to those around
him?
A: I felt confident that the people that were there could control it
because I felt that I was no use with my hands the way they were. I
could not feel them and the one was bleeding all over.
Q. You said that you felt confident that the situation could be
controlled.
A. I felt confident leaving Mr. Weigel in Trooper Broad’s custody
with all the witnesses standing around that were going to help us
earlier, yes.
(R. Vol. II at 426.) Likewise Broad was asked, “When Trooper Henderson left to
go get his gloves, were you comfortable that you could retain control over Mr.
Weigel?” (R. Vol. II at 362.) Broad answered, “I assume so. I mean, he was still
struggling. But at that point I was keeping him down.” (R. Vol. II at 362.)
In spite of that testimony the district court said, “[I]t is easily inferred that
Trooper Henderson would not have left Trooper Broad had he thought Weigel still
posed a credible threat to his safety.” (R. Vol. III at 718.) I beg to differ. The
only thing to be reasonably inferred is that when Henderson went to his patrol
vehicle he concluded Weigel posed a manageable threat because (1) he was
handcuffed, (2) Stickley was on his legs, (3) other civilians were there to help,
and perhaps most important (4) with Weigel face down Broad was in control
because he could leverage restraint as might be necessary. Henderson’s
assessment was one of continuing but tolerable danger if the status quo was
-20-
maintained. The status quo included Broad’s ability to control Weigel because of
the restraints in place. Had Weigel been moved to a position making it easier for
him to resume the fight, Broad’s control would have been compromised,
increasing risk. Placing ourselves in the position of a reasonable officer on the
scene, the record does not demonstrate a legitimate reason to quarrel with such an
assessment. Certainly there is no reason for a court to concoct a contrary view. 16
Scott, 127 S. Ct. at 1779; Graham, 490 U.S. at 396-97.
D. Apparent susceptibility to positional asphyxia
Focus is critical. The issue is not whether the troopers failed to roll Weigel
on his side resulting in his death due to positional asphyxia. The constitutional
issue is reasonableness—whether (1) the circumstances gave the troopers
sufficient time to reflect, (2) they unreasonably failed to recognize (in the short
time available) Weigel was at risk for positional asphyxia, and (3) they properly
16
The majority relies on Sallenger v. Oakes as suggesting Henderson’s
leaving the immediate scene demonstrates Weigel was under sufficient control,
making it unnecessary for Broad to continue to hold him down. 473 F.3d 731
(7th Cir. 2007). In Sallenger, the Seventh Circuit concluded the fact one of three
officers left the room to wash pepper spray from his eyes “raised a question of
fact as to the degree of control [the other two officers] had over [Sallenger] after
he was handcuffed. [The officer’s] ability to leave the bedroom suggests that [the
other two officers] had sufficient control over [Sallenger] at that time to render
the [officers’] additional punches and blows unnecessary, and therefore,
unreasonable.” Id. at 740. Sallenger is inapposite. The reason Weigel was under
control at the time Henderson left the scene was because Broad was in a
commanding position. Therefore, unlike the punches and blows in Sallenger
which were unnecessary to control Sallenger, Broad’s restraining force was
necessary.
-21-
responded to the recognizable risk (giving due consideration to the time available,
the preceding and precipitating events, the danger presented and the available
alternatives). None of the factors are present here. The troopers had insufficient
time to reflect, the risk factors for positional asphyxia were not apparent and, had
they been, the troopers’ response was reasonable.
At bottom, it comes down to weighing the risk to Weigel against other
factors—a non-exhaustive list would include the urgency of the situation, the risk
to the troopers, the risk to others, the alternatives available, and the relative
culpability of the actors. We can calmly reflect upon those matters, but the
troopers had to do the cost-benefit analysis at lightning speed under adverse
conditions. As Graham instructs, our reasonableness analysis must make
allowance for the troopers’ condition and perspective as they balanced the risk to
themselves and others against the risk to Weigel.
Danger to Weigel looks at the risk of positional asphyxia presented by the
methods employed. Medical and academic professionals disagree about whether
applying weight to the back of a face down individual handcuffed behind his back
is likely to cause asphyxia and death. The literature states sudden-in-custody
deaths from positional asphyxia are “rare” and “infrequent” and when they do
occur, certain risk factors are usually present: (1) obesity or protruded abdomen
(beer belly), (2) enlarged heart or other underlying health problems, (3) mental
illness, in particular, manic depression and extreme agitation, hallucinations and
-22-
paranoia, (4) drug and/or alcohol intoxication, (5) cocaine-induced bizarre
behavior/excited delirium, and (6) a violent struggle with police. (R. Vol. I at
109, 124, 202.)
Both sides offered expert opinions as to whether Weigel had any of the risk
factors. To the extent those opinions differ it is immaterial because the issue is
not whether Weigel actually had the risk factors but whether the risk factors, if
present, were or should have been apparent to the troopers during their fight with
Weigel. 17 Id. at 1188.
With one exception none of the six risk factors were objectively apparent
during the encounter. Weigel was not obese, did not have a protruded abdomen,
and had no observable health conditions. There was no evidence which would
17
The Estate’s police practices expert, D.P. Van Blaricom, opined Weigel
“clearly displayed the characteristics of a person at risk of restraint asphyxia”
because “[h]e was engaged in bizarre behavior that is associated with diminished
capacity,” “[h]e engaged in a prolonged physical struggle . . . during which time
he displayed abnormal strength,” and “he continued to struggle until he suddenly
quit breathing.” (R. Vol. II at 290.) Defendants’ expert, Dr. Vincent Di Maio,
opined Weigel did not die from asphyxia but from Excited Delirium Syndrome
(EDS) because, inter alia, Weigel demonstrated symptoms of a psychotic episode
in the week preceding his death, Weigel failed to respond to resuscitation, and the
facts of this case were consistent with EDS, which involves the sudden death of
an individual, after an episode of excited delirium which is terminated by a
violent struggle and use of physical restraint, in which the autopsy fails to reveal
evidence of sufficient trauma or natural disease to explain the death.
The opinions were the result of an “after-the-fact” assessment as opposed to
a participant’s real time assessment. Indeed, during the encounter, Henderson and
Broad could not have been aware of Weigel’s prior psychotic episode, nor did
they know he would not respond to resuscitation, what the results of his autopsy
would be or that he would continue to struggle until he simply stopped breathing.
-23-
have reasonably led the troopers to believe he was mentally ill or in a state of
drug-induced bizarre behavior/excited delirium, given that the troopers were
otherwise engaged during this brief encounter. And while the troopers believed
they detected the smell of alcohol on Weigel’s breath, they observed no other
signs of intoxication such as bloodshot or watery eyes, slurred speech or
stumbling. Weigel’s behavior after hitting Broad’s vehicle would not have led
the troopers (or any reasonable officer) to believe he was intoxicated, high on
drugs or suffering from a mental illness or excited delirium—he was able to
decline the need for an ambulance, answer the troopers’ questions concerning the
accident, agree to the administration of sobriety testing, follow Henderson to the
side of I-25 and run across I-25.
The only apparent risk factor was the violent struggle. The literature on
the subject and the Estate’s police practices expert both acknowledge the struggle
factor may or may not make an individual more vulnerable to positional asphyxia.
Without more I do not see how something that “may or may not” be a factor can
be apparent.
E. Training
In some detail the majority points to the positional asphyxia training the
troopers received. It relies upon that training to conclude “a reasonable [trained]
officer would have known that the pressure placed on Mr. Weigel’s upper back as
he lay on his stomach created a significant risk of asphyxiation and death. His
-24-
apparent intoxication, bizarre behavior, and vigorous struggle made him a strong
candidate for positional asphyxiation.” (Majority Op. at 15.)
The training the troopers received did not establish that the brief use of the
restraints employed presented a substantial risk to Weigel. They received
materials and viewed presentations and videos pertaining to sudden in-custody
death from positional asphyxia. Some of these materials informed them that an
individual lying on his stomach has trouble breathing when pressure is applied to
his back and they should get the suspect off his stomach and on to his side or in a
seated position as soon as the suspect is handcuffed. However, other materials
informed them to place the suspect in a position that allows him to breathe “as
soon as safety permits” or “as much as possible, and AS SOON AS POSSIBLE,
relieve the subject of heavy weight used for control” or “[a]s soon as possible, get
person out of the prone position, on his/her side, or seated in upright position.”
(R. Vol. I at 197, 202.) As the troopers’ use of force instructor testified, what “as
soon as safety permits,” “as soon as possible” and “as much as possible” mean is
a judgment call dictated by the circumstances presented.
The troopers were trained not to misinterpret a suspect’s struggle for
oxygen as continued resistance. But the training materials concede it is very
difficult to distinguish between the two and often the suspect will have no clear
symptoms before he simply quits breathing. The troopers were also trained,
consistent with the literature, that the presence of certain risk factors increases the
-25-
risk of sudden-in-custody death by positional asphyxia. If multiple risk factors
are present, the training materials recognize that whether officers can implement
the recommended practices depends on the particular circumstances. 18
Viewing the training materials as an integrated whole, they warn the
troopers of the risk of sudden in-custody death from positional asphyxia–little
risk to healthy adult males, some risk to the general population and greater risk to
those with diminished capacity (identified by the presence of specific risk
factors). See Cruz v. City of Laramie, Wyo., 239 F.3d 1183, 1188-89 (10th Cir.
2001). Weigel was a healthy, adult male. None of the risk factors with the
exception of a violent struggle were apparent to the troopers. Thus, to the extent
training is relevant, the troopers acted consistently with it. 19
18
In the training video referenced by the majority, the narrator, the Chief
Medical Examiner for New York City, expressly acknowledges from the outset he
has never had to subdue and restrain a violently struggling, emotionally disturbed
individual.
19
I disagree that training has any relevancy in the qualified immunity
analysis. See, e.g., Davis v. Scherer, 468 U.S. 183, 194 & n.12 (1984) (“Officials
sued for constitutional violations do not lose their qualified immunity merely
because their conduct violates some statutory or administrative provision . . .
unless that statute or regulation provides the basis for the provision sued upon.”);
Tanberg v. Sholtis, 401 F.3d 1151, 1159-60 (10th Cir. 2005) (“Even if it were
clear that Officer Sholtis had violated the [Albuquerque Police Department
standard operating procedures], that violation would not transform an arrest
supported by probable cause into an unconstitutional seizure.”); Herring v.
Keenan, 218 F.3d 1171, 1180 (10th Cir. 2000) (“[W]ithout a stronger indication
from the courts that a reasonable probation officer in Keenan’s position would
have known that she was violating Herring’s constitutional rights by disclosing
his HIV status, rather than simply violating an internal policy, we cannot say that
(continued...)
-26-
F. Conclusion
No constitutional violation occurred here. The troopers’ actions were
objectively reasonable under the totality of the circumstances and no reasonable
jury could conclude otherwise. The troopers ought not be put to the expense and
inconvenience of a trial.
III. Clearly Established Law
I am particularly concerned with the majority’s cavalier treatment of clearly
established law. It seems to incorporate concepts from tort law, which looks for a
duty and imposes a standard of care. “‘[D]uty’ is a question of whether the
defendant is under any obligation for the benefit of the particular plaintiff; and in
negligence cases, the duty is always the same–to conform to the legal standard of
reasonable conduct in the light of the apparent risk. What the defendant must do,
or must not do, is a question of the standard of conduct required to satisfy the
duty.” W. P AGE K EETON ET AL ., P ROSSER & K EETON ON THE L AW OF T ORTS § 53
(5th ed. 1984). Typically that standard of care is open ended–what a reasonable
and prudent person would do under the same or similar circumstances. Myriad
factors bear upon what might be expected of the hypothetical reasonable and
prudent person. And juries are given wide latitude in sorting them out.
19
(...continued)
Keenan violated Herring’s clearly established constitutional right to privacy.”).
-27-
But qualified immunity in § 1983 cases narrows the focus. It shields
government actors from liability, even if they have violated a plaintiff’s federal
rights, unless those actors have fair warning, embodied in clearly established law,
that their conduct violates established norms. Cases from the Supreme Court and
this Court establish or explain those norms and provide guidance in a concrete
and particular way, stating useful principles capable of being easily understood
and applied by those not well schooled in jurisprudence. That guidance comes
from the studied application of constitutional principles derived from a wide
range of cases. It ought not be scrapped in favor of ad hoc jury decisions guided
only by abstract or theoretical formulations. Stripping away qualified immunity
reduces this case to a garden variety tort.
The district court determined the troopers were entitled to qualified
immunity because the law prohibiting their conduct was not clearly established at
the time of the incident. In doing so, it compared the facts of this case with Cruz
v. City of Laramie, Wyo., 239 F.3d 1183 (10th Cir. 2001). Cruz, a person of
obvious diminished capacity, 20 resisted arrest but did not start a fight or try to
take the officers’ weapons. And, Cruz was subjected to the most extreme form of
positional restraint—hog-tying. Due to the substantial differences between Cruz
20
To say Cruz’s diminished capacity was obvious is an understatement. He
was running around naked outside of an apartment building, jumping up and
down, kicking his legs in the air, yelling continuously about swarming insects,
and swatting at invisible objects. Cruz, 239 F.3d at 1186, 1189.
-28-
and this case, the district court concluded Cruz did not fairly warn the troopers
that their actions here were unlawful.
Although the majority discusses Cruz, it ultimately ignores the case’s
impact on clearly established law by retreating to the highest level of generality,
simply saying the Fourth Amendment prohibits unreasonable seizures. 21 It relies
on the troopers’ training to conclude they should have been aware of the
substantial risk of death to Weigel from the restraints employed. Finally, it says
cases from other circuits clearly established the law as it has today announced
it— putting substantial pressure on a suspect’s back while the suspect is in a face-
down prone position after being subdued and/or incapacitated is excessive force.
I disagree with the majority’s approach and all aspects of its reasoning.
The Fourth Amendment’s general prohibition of unreasonable seizures does
not provide fair warning of prohibited conduct. Cruz, the only relevant case
authority, cannot reasonably be read to contain such sweeping generalizations.
Instead it announces a limited holding, which the troopers clearly did not violate.
The majority’s discussion of trooper training is irrelevant, but assuming,
21
Apparently the reams of material interpreting and explaining the
parameters of the Fourth Amendment’s reasonableness requirement have been
written in vain. The rule from case law that warrantless searches must be based
upon probable cause is of no moment. Nor is the judicially created presumption
that a search without a warrant is unreasonable. Nor are the exceptions to that
presumption. Interesting.
-29-
arguendo, the contrary, the troopers did not stray from their teachings. Finally,
the mixed decisions from other courts provide no coherent guidance.
A. The Fourth Amendment and Cruz v. City of Laramie, Wyo.
[O]ur analysis in this case of the constitutionality of the restraint of Mr.
Weigel does not require us to compare the facts of Cruz to the allegations
here. It is based on more general principles. The Fourth Amendment
prohibits unreasonable seizures. We do not think it requires a court
decision with identical facts to establish clearly that it is unreasonable to
use deadly force when the force is totally unnecessary to restrain a suspect
or to protect officers, the public, or the suspect himself.
(Majority Op. at 19.)
The Supreme Court sees it differently. In Brosseau v. Haugen, officer
Brosseau responded to a report of a fight between Haugen, Tamburello and
Atwood in a residential driveway. 543 U.S. 194 (2004). When Brosseau arrived,
Haugen ran and hid in the surrounding neighborhood. Brosseau called for
assistance; two officers responded. While they searched for Haugen, the officers
instructed Tamburello and Atwood to remain in Tamburello’s vehicle which was
parked in the street in front of the driveway. They also directed Haugen’s
girlfriend, who was present with her young daughter, to stay in her car parked in
the driveway. Haugen was eventually found and engaged Brosseau in a foot
pursuit. Haugen ran to the driveway and got into a parked Jeep. Brosseau
believed he was going to retrieve a weapon so she drew her weapon, pointed it at
Haugen and ordered him out of the Jeep. Despite repeated orders to leave the
vehicle and being struck with the butt and barrel of Brosseau’s gun, Haugen
-30-
started the Jeep engine. As the Jeep began to move, Brosseau fired one shot
through the rear of the driver’s side window, hitting Haugen in the back.
The Court of Appeals concluded Brosseau was not entitled to qualified
immunity because Graham and Garner clearly established the unlawfulness of her
actions. Id. at 199. The Supreme Court reversed, holding the appellate court
erred in relying on Graham and Garner:
Graham and Garner, following the lead of the Fourth Amendment’s text,
are cast at a high level of generality. Of course, in an obvious case, these
standards can clearly establish the answer, even without a body of relevant
case law. The present case is far from the obvious one where Graham and
Garner alone offer a basis for decision.
We therefore turn to ask whether, at the time of Brosseau’s actions, it was
clearly established in [a] more particularized sense that she was violating
Haugen’s Fourth Amendment right . . . [in] the situation Brosseau
confronted: whether to shoot a disturbed felon, set on avoiding capture
through vehicular flight, when persons in the immediate area are at risk
from that flight.
Id. at 199-200 (citations and quotations omitted).
This case cannot be distinguished from Brosseau. The appropriate use of
positional restraints in a brief, violent situation endangering officers and others
would seem to cry out for particularized warning no less than shooting “a
disturbed felon, set on avoiding capture through vehicular flight, when persons in
the immediate area are at risk from that flight.” Id. at 200. Like Brosseau, this
case does not present an obvious constitutional violation. The Fourth
Amendment’s general prohibition against unreasonable seizures is “cast at too
-31-
high a level of generality” to clearly establish the law. To strip these troopers of
qualified immunity, the law must have been “clearly established in a more
particularized sense” in December 2002.
The law at the time of the incident must have provided “fair warning” that
the methods the troopers employed were unconstitutional. Hope v. Pelzer, 536
U.S. 730, 741 (2002). Fair warning comes primarily, but not exclusively, from
the holdings in prior cases in the relevant jurisdiction. Medina v. City & County
of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) (“Ordinarily, in order for the law
to be clearly established, there must be a Supreme Court or Tenth Circuit decision
on point, or the clearly established weight of authority from other courts must
have found the law to be as the plaintiff maintains.”).
No Supreme Court case is directly on point and the only relevant opinion
from this circuit is Cruz. However, by its express terms Cruz applies only to hog-
tying individuals with apparent diminished capacity. 239 F.3d at 1188. A hog-tie
is a restraint technique whereby a person’s hands are cuffed behind his back, his
feet are bound together, drawn up behind his back and attached to the handcuffs.
It results in his ankles being bound to his handcuffed wrists behind his back with
twelve inches or less of separation. Id. A similar technique is referred to as
hobbling. Id. at 1188 n.14. The only difference between the two techniques is
the distance between ankles and handcuffed wrists; a separation of twelve inches
or less is a hog-tie, a greater distance is a hobble. Id. The trial court in Cruz
-32-
found the distance to be twelve inches or less, a fact we credited and used to
focus our analysis only on the hog-tie technique. Id. at 1188. We relied on
literature and cases specifically dealing with hog-ties. Id. at 1188-89. And our
decision reflected our narrow focus: “We do not reach the question whether all
hog-tie restraints constitute a constitutional violation per se, but hold that officers
may not apply this technique when an individual’s diminished capacity is
apparent.” Id. at 1188 (emphasis added).
In Cruz we expressly did not forbid all hog-ties let alone the less restrictive
hobble. Our discussion would lead any reader to think the distinction significant
and the reach of the decision limited. It gives no warning that it should be read
expansively to address lesser forms of positional restraint. This is not a hog-tie
case; it is not even a hobble case. No attempt was made to pull Weigel’s ankles
behind him in any way, let alone tie them to his handcuffed wrists.
The majority relies on Hope for the proposition that a prior case need not
address the very action in question in order to clearly establish the law. (Majority
Op. at 19-20.) However, a prior case with fundamentally similar facts provides
“especially strong support for a conclusion that the law is clearly established.”
Hope, 536 U.S. at 741. 22 It is significant that Hope dealt with punishment
22
If the recent Supreme Court cases construing “clearly established Federal
law” in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
context provide any indication, see Carey v. Musladin, 549 U.S. 70, 127 S. Ct.
649 (2006); Wright v. Van Patten, -- U.S.--, 128 S.Ct. 743, 746 (2008) (per
(continued...)
-33-
imposed after the fact and after an opportunity for reflection. 23 In such
circumstances guiding case law needs to be less specific; a higher degree of
abstraction may provide fair warning in a highly deliberative environment. This
case is the polar opposite, involving dynamic decision-making under the most
difficult of circumstances. To be useful to officers in the field (or in a fight) the
warning imparted must be crisp and clear; specific and simple. A “spotted dog”
case provides that warning, generalized musings do not. Three judges have
carefully read, even parsed, the language of Cruz. With the luxury of time and
the benefit of briefing and argument from counsel, we take away dramatically
different views of its holding. The troopers did not have that luxury, yet even in
22
(...continued)
curiam), something akin to on-point holdings is required. See House v. Hatch,
527 F.3d 1010, 1015 (10th Cir. 2008); see also O’Brien v. DuBois, 145 F.3d 16,
24 (1st Cir. 1998) (comparing the AEDPA and qualified immunity’s clearly
established requirement and concluding “a rule need not be quite as clear or a
precedent as factually specific to rate review under the ‘contrary to [clearly
established Federal law]’ clause of [the AEDPA] as it must be to hold a state
actor liable for damages under [§] 1983”), overruled on other grounds by
McCambridge v. Hall, 303 F.3d 24 (1st Cir. 2002) (en banc).
23
As punishment for failure to work, Hope was handcuffed to a hitching
post for seven hours, stripped of his shirt in the hot sun, deprived of water and
denied an opportunity to relieve himself. The Supreme Court decided the
punishment violated the Eighth Amendment and then considered whether the
officers had fair warning the practice was prohibited. The Court concluded it was
an obvious case: “The obvious cruelty inherent in this practice should have
provided respondents with some notice that their alleged conduct violated Hope’s
constitutional protection against cruel and unusual punishment. Hope was treated
in a way antithetical to human dignity . . . . This wanton treatment was not done
of necessity, but as punishment for prior conduct.” Hope, 536 U.S. at 745
(emphasis added).
-34-
the aftermath of a desperate fight they knew hog-tying was prohibited and did not
do it or anything like it. To expect them to have coaxed from Cruz anything akin
to the majority’s holding is contrived.
Even if a broader principle can be extracted from Cruz the majority’s
reading exceeds elastic limits. A hog-tie may be a subset of positional restraint,
but every form of positional restraint is not the equivalent of a hog-tie.24 The
majority says the Cruz panel discussed the dangers of “sudden custody death
syndrome,” and “positional asphyxiation” in general, and made specific
pronouncements on the risks. (Majority Op. at 19.) Not so. Cruz said: “Given
the extent of the case law, and the ‘legally-related’ literature available to law
enforcement personnel detailing the serious dangers involved in application of the
hog-tie restraint, it is apparent that officers should use much caution in applying
the hog-tie restraint.” 239 F.3d at 1189 (emphasis added). Cruz only considered
a very specific technique (hog-tie). There was no generalized pronouncement on
positional asphyxia, in fact the language of the opinion suggests limitation, not
expansion. 25 Enough about hog-ties. Cruz contains an even more telling
limitation: “Our holding today relates to individuals with an apparent and
24
A deductive syllogism (all men are mortal and Aristotle is a man;
therefore, Aristotle is mortal) works where an inductive syllogism (Liz has red
hair and she is female; therefore, all redheads are female) does not.
25
Had Cruz contained generalized statements about positional asphyxia
they would be dicta. Why should the law enforcement community be bound by a
pronouncement no court is obligated to follow?
-35-
discernible diminished capacity.” 26 Cruz, 239 F.3d at 1188. We need to see if
this case fits within that additional requirement.
Weigel was a strong, healthy, adult male. 27 To the extent his capacity was
diminished it was not apparent, i.e., “readily understood; clear or obvious.” See
n. 26. The majority states Weigel’s “apparent intoxication, bizarre behavior, and
vigorous struggle made him a strong candidate for positional asphyxiation.”
(Majority Op. at 15.) Weigel’s behavior may have been bizarre as measured by
ordinary interaction, but not for an individual attempting to avoid arrest by flight.
When Weigel could not or would not produce his driver’s license, the troopers
reasonably believed there may have been a warrant for his arrest or he was
driving with a suspended license. That explanation for his behavior is at least as
26
The Cruz opinion repeatedly said any diminished capacity must be
apparent. Breaking with that practice in this one quote the opinion rather
inexplicably said “apparent and discernible.” ‘Apparent’ means “readily seen;
visible; readily understood; clear or obvious.” ‘Discernible’ means “perceptible,
as by the faculty of vision or the intellect.” A MERICAN H ERITAGE D ICTIONARY OF
THE E NGLISH L ANGUAGE , O NLINE E DITION (4th ed. 2000). Something is
discernible if it is merely capable of being seen (as upon close inspection),
whereas something is apparent if it is obvious. It may be discernible without
being obvious, but it must be obvious to be apparent. Since the language of Cruz
requires the delirium to be both discernible and apparent, it must necessarily be
apparent, because that is the more demanding standard (and that usage is
consistent with the language used throughout the opinion).
27
The Cruz record contained an expert opinion based upon a study
concluding hog-tying does not result in positional asphyxia. Id. at 1189.
Significantly, we rejected the opinion because the study focused on healthy adult
males. Id. If a study of healthy adult males is not relevant to those with risk
factors for positional asphyxia, then those without apparent risk factors ought not
be treated as if they were at risk.
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cogent as the experts’ theories and under the circumstances one far more likely to
come to mind. While the troopers thought Weigel may have been intoxicated
based on the smell of his breath (a factor calling for further investigation, rather
than a jump to conclusions), they noticed no other signs of intoxication, let alone
“severe” intoxication, as required by Cruz. 239 F.3d at 1188. The Estate’s police
practices expert agreed. Moreover, Weigel’s behavior after hitting Broad’s
vehicle was inconsistent with an emotionally disturbed individual or one
intoxicated on drugs or alcohol and there was no sign he was hallucinating or
suffering from paranoia. He was lucid, understood the troopers and responded to
their queries.
Candor requires an admission. Those sitting in a jury box years after the
fact, might see events as the majority suggests, rather than as I see them. But that
is not the test. The risk factors (to the extent they actually existed) must be
considered as a reasonable trooper would have perceived and processed them at
the time. Weigel’s possible intoxication and possible suicidal ideation occurred
before Weigel started the fight. For the three minutes following the fight when
the violence had abated (according to the Estate) any reasonable but bruised,
bleeding and exhausted officer would surely remember Weigel’s strength and
determination, a fight nearly lost, weapons nearly appropriated, the need to
request help from onlookers, and the hoary face of death. Such an officer would
surely be guided by the need to maintain control of a dangerous situation. Such
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an officer would not (and ought not be required to) recall and evaluate a catalog
of risk factors for positional asphyxia. The majority expects too much of these
troopers. No jury should be called upon to speculate about such matters.
B. Training
Law enforcement officers must, like everyone else, obey the law and
officer training is necessary to that end. At a minimum, instruction regarding
behavioral standards imposed upon the police by a court decision in the relevant
jurisdiction would be required because that is, by definition, clearly established
law. Beyond that, training might include instruction on procedures or best
practices, seeking to impart skills and guidelines useful to officers in effectively
and safely performing their duties. The training may well reflect value judgments
about matters beyond what established law requires. But the law dictates officer
training, not the other way around.
Because training alone cannot establish the law, the troopers’ training is
largely irrelevant. The Supreme Court has used officer training in a limited way
to underscore and personalize the fair warning requirement. See Groh v. Ramirez,
540 U.S. 551, 564 & n.7 (2004) (using officer’s employer’s internal guideline
only to “underscore” that officer was on notice of the unlawfulness of his conduct
not to “suggest that an official is deprived of qualified immunity whenever he
violates an internal guideline”); see also Hope, 536 U.S. at 743-44 (relying on
prison regulation placing requirements on the punitive use of hitching post in
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determining law was clearly established). Here, the troopers’ conduct was well
within the Cruz holding or any reasonable extension of it. There was nothing for
training to underscore.
These troopers were vaguely aware of Cruz but were not specifically
instructed on its teachings because the Wyoming Highway Patrol already
prohibited the hog-tie, decided by Cruz. 28 The troopers’ training was more than
equal to Cruz standards.
28
The majority says Cruz “was apparently the reason for the extensive
Wyoming Law Enforcement Agency (WLEA) training [the troopers received] on
positional asphyxia.” (Majority Op. at 20.) The record does not support the
assertion. Broad testified he was only “[v]aguely familiar” with Cruz, did not
recall when he first learned of it and “couldn’t even tell you what the point of it
is. I know basically we don’t hogtie and I think that case has something to do
with it.” (R. Vol. II at 366-67.) The only testimony Henderson provided about
Cruz was that he remembers Trooper Vincent (training officer) posting Cruz in
the office. He did not read it entirely and all he knew about it was it involved an
in-custody death. Trooper Vincent only testified concerning Cruz’s effect on the
training provided by the Wyoming Highway Patrol, not the WLEA. He stated the
Highway Patrol does not specifically instruct on positional asphyxia, that training
comes from the WLEA. Although a memorandum concerning Cruz was
distributed state-wide from Highway Patrol’s headquarters, Vincent did not
specifically recall its contents other than that the Tenth Circuit found against the
City of Laramie because its “officers were liable for causing positional asphyxia
death, related death, of Mr. Cruz.” (Id. at 484.) Vincent further testified that
after Cruz was decided, the Highway Patrol spoke to him about it in reference to
hog-tying. However, because the Highway Patrol has always trained its officers
not to hog-tie, Vincent said the Patrol’s training did not change following Cruz.
None of this testimony establishes the majority’s assertion that Cruz was
apparently the reason for the troopers’ training on positional asphyxia at the
WLEA. Indeed, the assertion is belied by the testimony of Ernest Johnson, who
instructed officers on the use of force at the WLEA from 1976 through 2001. He
testified he began instructing on positional asphyxia sometime between 1996-
1998, several years prior to the Cruz decision.
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C. Other jurisdictions
Cruz is the seminal and solitary authority. Nevertheless, the majority relies
on Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004),
Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1061-62 (9th
Cir. 2003), and Gutierrez v. City of San Antonio, 139 F.3d 441 (5th Cir. 1998), as
clearly establishing the unlawfulness of the troopers’ actions. Cases from other
jurisdictions are relevant only if they are on point and collectively form what we
might call the weight of authority. The cases miss the mark by a mile. Gutierrez
suffers from the same flaw as Cruz–it is a hog-tie case. Gutierrez also had an
apparent diminished capacity—he told one of the officers he had ingested bad
cocaine and he had glassy eyes, slurred speech and walked unsteadily, all “classic
symptoms of drug use.” 139 F.3d at 448. The court also expressly distinguished
the facts of the case—the transportation of Gutierrez in a patrol vehicle—from a
“rapidly evolving encounter with a potentially armed suspect in which the officer
must react quickly.” Id. at 450.
Champion and Drummond cannot clearly establish the law because they
were decided after the incident in this case. See Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982) (holding law must be clearly established at the time of the
incident). To the extent the majority is relying on the holdings in these cases—
that the law clearly prohibited putting substantial or significant pressure on a
suspect’s back while that suspect is in a face-down prone position after being
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subdued and/or incapacitated constitutes excessive force—its reliance is
misplaced.
First, both cases relied on the officers’ training. As explained above, an
officer’s training (beyond explaining clearly established law) is irrelevant to the
analysis. Second, Drummond relied upon the obvious unreasonableness of the
officers’ actions–the officers allegedly crushed Drummond against the ground by
placing their weight on his neck and torso and continuing to do so despite the fact
his hands were cuffed behind his back, he was not resisting and he repeatedly
cried out for air. The unreasonableness of the troopers’ actions in this case
(which I assume for argument only) was far from obvious. Finally, both
Champion and Drummond relied on cases which are clearly distinguishable from
the facts here.
Both cases relied on Swans v. City of Lansing, 65 F. Supp. 2d 625, 632-34
(W.D. Mich. 1998). Unlike Weigel, however, Swans suffered from multiple risk
factors associated with sudden in-custody death from positional asphyxia, i.e., he
was 5'8" and weighed 260 pounds and officers knew he was mentally ill.
Moreover, the case involved six officers placing their weight on Swans while his
hands and legs were restrained, leaving him motionless in his cell for ten to
twelve minutes and then moving him to a different cell—all due to the fact Swans
said “no” in response to an officer’s command and struck an officer’s face with
his foot upon being brought down.
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Similarly, in Simpson v. Hines, relied upon by Champion and decided under
the Fourteenth Amendment substantive due process standard, ten officers applied
force to an inmate who refused to surrender contraband and left him handcuffed
and motionless in his cell. 903 F.2d 400, 401-03 (5th Cir. 1990). Not only were
the police officers’ actions far more egregious and the inmate’s actions calling for
such force far less provocative than in this case, the cause of the inmate’s death
was unclear (i.e., whether it was asphyxia due to a neckhold or asphyxia due to an
officer sitting on his chest). Consequently, Simpson could not have provided the
troopers fair warning that briefly applying pressure to the torso of a resisting but
restrained individual is unconstitutional.
The other cases relied upon by either Champion or Drummond are also
materially distinguishable from this case and therefore could not have provided
the troopers’ the requisite fair warning their actions in this case were objectively
unreasonable. In Johnson v. City of Cincinnati, Johnson was obese, tested
positive for marijuana and suffered from agitated delirium, all risk factors for
positional asphyxia. 39 F. Supp. 2d 1013, 1017-18 (S.D. Ohio 1999). Moreover,
although the court found there were questions of fact as to whether the city was
liable for failure to adequately train, it noted there was a dispute between the
parties’ experts on the causes of sudden in-custody death and whether Johnson’s
death was in fact caused by the restraint used. And in Estate of Bryant v.
Buchanan, Bryant was unconscious when the officers rolled him onto his
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stomach, handcuffed him and placed their knees and weight on his chest. 883 F.
Supp. 1222, 1224 (S.D. Ind. 1995). Weigel was not unconscious, he was resisting
in a violent and persistent manner, the restraints were applied for at most three
minutes and he was not moved from the locus of his attack on Henderson. The
situation here was hardly under the control of the troopers.
In addition to the above cases being factually distinguishable, a number of
other cases decided prior to December 2002 reached a different conclusion. For
instance, in Wagner v. Bay City, Tex., the plaintiff’s brother, Gutierrez, was
involved in an altercation with the police. 227 F.3d 316 (5th Cir. 2000). During
the altercation, the officers sprayed him with pepper spray. The officers placed
him face down on the ground and were eventually able to handcuff him. While
doing so, one of the officers placed his knee on Gutierrez’s neck or back. The
officers then placed him in a patrol car face down and transported him to jail,
where he was found not breathing. The district court denied summary judgment
to the officers; the Fifth Circuit reversed, concluding the officers’ conduct was
“objectively reasonable in the context of th[e] dangerous situation that Gutierrez
created . . . .” Id. at 324.
Similarly, in Fernandez v. City of Cooper City, Fernandez strenuously
resisted the officers’ attempts to subdue him and fled from them. 207 F. Supp. 2d
1371 (S.D. Fla. 2002). Once the officers caught up with him, Fernandez
continued to actively resist being restrained. Eventually, the officers worked
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together to hold him to the ground and cuff his hands and feet. Shortly after they
cuffed him, Fernandez stopped breathing. The court concluded the officers did
not use excessive force:
The prone restraint, pressure on the upper torso (presumably from
one of the officer’s knees being pressed to [Fernandez’s] back),
handcuffing, and struggle were all the result of [Fernandez’s] illegal,
physical, and prolonged resistance. It was of course an unfortunate
occurrence, but sympathy for a plaintiff does not transform law
enforcement officials’ objectively reasonable responses to a volatile
situation into a constitutional violation.
Id. at 1379; see also Estate of Phillips v. City of Milwaukee, 123 F.3d 586, 588-
90, 593-94 (7th Cir. 1997) (finding no excessive force where police restrained
obese individual, who had been acting strangely and had struggled with police, in
a prone position with his hands and feet restrained and constantly monitored him
even though he subsequently died of positional asphyxia); Price v. County of San
Diego, 990 F. Supp. 1230, 1234-40 (S.D. Cal. 1998) (recognizing dispute between
the experts concerning whether hog-tying leads to asphyxia and concluding
officers used reasonable force in placing Price face-down, hog-tying him and
applying pressure to his torso after he struggled with officers and tried to grab
their guns).
The caselaw from other circuits was conflicting in December 2002. There
is no identifiable consensus, let alone a clear weight of authority. They could not
have provided fair warning to these troopers. Jantz v. Muci, 976 F.2d 623, 630
(10th Cir. 1992) (stating “the general state of confusion in the law . . . cast[s]
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enough shadow on the area so that any unlawfulness in Defendant’s actions was
not [clearly established at the time of their actions]”); cf. Musladin, 127 S. Ct. at
654 (noting the wide divergence in how lower courts analyzed a certain issue
demonstrated the lack of a Supreme Court case clearly establishing federal law in
AEDPA case).
D. Conclusion
The district court was correct with respect to the issue of clearly
established law. I would affirm on that issue.
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