REVISED October 28, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 08-60516 October 28, 2009
Charles R. Fulbruge III
Clerk
ALICE LOGGINS HILL, as Administratrix of the Estate of
Debbie Denise Loggins, Deceased
Plaintiff-Appellant
v.
CARROLL COUNTY, MISSISSIPPI; CARROLL COUNTY SHERIFF’S
DEPARTMENT, a Division of Carroll County, Mississippi; DONALD GRAY,
in his Official Capacity as Sheriff of Carroll County; MICHAEL SPELLMAN,
Individually and in his official capacity as Chief Deputy Sheriff of Carroll
County; CHARLES JONES, Individually and in his official capacity as Chief
Deputy Sheriff of Carroll County; DAVID MIMS, Individually and in his
official capacity as Deputy Sheriff of Carroll County
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Mississippi
Before JONES, Chief Judge, and STEWART and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Chief Judge:
Alice Loggins Hill (“Hill”), as administrator of Debbie Denise Loggins’s
(“Loggins”) estate, sued several police officers and Carroll County, Mississippi,
under 42 U.S.C. § 1983 for claims arising out of her daughter’s death while she
was being driven to jail. She appeals the district court’s grant of summary
No. 08-60516
judgment in favor of the defendants. With no evidence presented that Loggins’s
constitutional rights were violated, we affirm the district court.*
I. BACKGROUND
Shortly before 6:00 am on September 17, 2005, Carroll County Sheriff’s
Department Chief Deputy Michael Spellman (“Spellman”) and Deputy David
Mims (“Mims”) responded to a call about a fight between two women. Spellman
arrived first and found Debbie Loggins holding Patricia McChristian
(“McChristian”) in a headlock. When Loggins refused to release McChristian,
Spellman attempted to handcuff her. Loggins, who stood five foot four inches
tall and weighed 220 pounds, released McChristian but attacked Spellman,
forcing him to the ground. She seized the deputy’s flashlight and pummeled him
about the head and shoulders.
Spellman managed to knock the flashlight away from Loggins and
eventually handcuffed her wrists behind her back. She kicked and cursed at the
deputy. Spellman retrieved leg restraints from his patrol car and attached them.
When Deputy Mims then arrived on the scene, both officers tried to load Loggins
into the patrol car. She continued to kick, twist, and otherwise resist the
deputies. After they failed several times to deposit her in the car, Spellman
placed Loggins in four-point restraints,1 linking her leg restraints to her
handcuffs with an additional set of handcuffs. Spellman and Mims then lifted
Loggins into the back seat of Mims’s vehicle.
*
Judge Stewart concurs in the result of this opinion only. Judge Stewart would hold
that on the record before us, the individual sheriff's deputies did not violate “clearly
established” constitutional rights of Ms. Loggins in the manner in which they subdued and
transported her, and they are therefore shielded by qualified immunity even if they erred in
using excessive force in the first instance. See Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808,
815 (2009). He would also affirm the district court's grant of summary judgment to the
County.
1
This type of restraint, binding the arms and legs together behind the back with an
additional set of handcuffs, is also known colloquially as “hog-tying.”
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The two deputies drove to the Carrollton courthouse, where they met
Deputy Charles Jones (“Jones”), who would transport Loggins to jail in Grenada,
about 29 miles north. They transferred the still-fighting Loggins from Mims’s
vehicle to Jones’s. Loggins’s spirited movements caused Jones’s car to rock and
shake.
Taking the facts in the light most favorable to Hill, Loggins rode face-down
in the back of Jones’s air-conditioned car during the half-hour ride to the jail.
At some point during the trip, Loggins became quiet and, unbeknownst to Jones,
may have stopped breathing. On arrival, Jones left the car to request assistance
with Loggins. When a corrections officer accompanied Jones back to the car,
they found Loggins unresponsive and without a pulse. They began CPR and
notified the emergency medical service. Loggins was rushed to the Grenada
Lake Medical Center, but tragically, she was pronounced dead at 7:37 a.m.
The exact cause of Loggins’s death is unclear. Her body temperature at
the time of death was recorded at 107.5°F, an elevation consistent with the
official autopsy diagnosis of fatal hyperthermia. Loggins was also obese and
hypertensive; it is undisputed that neither drugs nor excessive alcohol were
present in her system. A note in the coroner’s chart suggests that blood work
should be done to rule out positional asphyxia SSbut no relevant test reports are
in the record. Finally, Hill’s expert Dr. Spitz opined, based on the abbreviated
medical records and autopsy report, that Loggins died from positional asphyxia
(suffocation). For present analytical purposes, we must assume she died of the
cause asserted by Dr. Spitz.
Hill sued all three deputies, Sheriff Donald Gray, and Carroll County
under § 1983 for violations of Loggins’s Fourth Amendment rights. The district
court granted motions for summary judgment in favor of the defendants, finding
the officers were entitled to qualified immunity and the County not liable for a
variety of reasons. Hill appeals.
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No. 08-60516
Although she characterizes the entire incident as an unreasonable seizure
violating the Fourth Amendment, Hill challenges two distinct actions by the
officers: the initial decision by Deputies Spellman and Mims to place Loggins
in four-point restraints and the failure of Deputy Jones to monitor Loggins
adequately during transport. Hill additionally contends that Carroll County is
liable under Monell for ratifying the deputies’ conduct, maintaining an
unconstitutional custom or policy, and failing to provide sufficient training. See
Monell v. Dep’t of Social Servs., 436 U.S. 658, 98 S. Ct. 2018 (1978).
II. STANDARD OF REVIEW
We review the grant of summary judgment de novo, applying the same
standards as the district court. Mack v. City of Abilene, 461 F.3d 547, 555 (5th
Cir. 2006). In evaluating a motion for summary judgment, the court must view
all disputed facts and inferences in the light most favorable to the non-movant.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct.
1348 (1986). Summary judgment must be granted if “there is no genuine issue
as to any material fact and [the court finds] that the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(c). No genuine issue as to any
material fact exists where a party “fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S. Ct. 2548 (1986).
III. DISCUSSION
A. Four-Point Restraints
Hill alleges that the deputies violated Loggins’s Fourth Amendment rights
by using excessive force during Loggins’s arrest. To recover, she must show:
(1) an injury (2) which resulted from the use of force that was clearly excessive
to the need and (3) the excessiveness of which was objectively unreasonable.
Williams v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999). To determine whether
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No. 08-60516
the force used by officers is unreasonable, the Fourth Amendment prescribes a
case-specific balancing exercise in which “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of officers or others,
and whether he is actively resisting arrest . . .” all play a part. Graham v.
Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989). The Court in Graham explains
the necessary perspective in evaluating the use of force:
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. . . . 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.
Graham v. Connor, 490 U.S. 386, 396–97, 109 S. Ct. 1865 (1989). Further, only
the objective reasonableness of force matters for Fourth Amendment
purposes—an officer’s subjective motivation and intent are irrelevant. Id. at
397. The court must measure the force used under the facts as a reasonable
officer would perceive them, not necessarily against the historical facts. See
Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991) (finding no Fourth
Amendment violation where an officer shot and killed an unarmed suspected
who the officer reasonably believed to be armed). For that reason, when
reviewing a grant of summary judgment in the Fourth Amendment context, after
first construing disputed historical facts in favor of the non-movant, the court
must then ask how a reasonable officer would have perceived those historical
facts.
Even if Hill establishes a violation of Loggins’s Fourth Amendment rights,
the deputies can claim qualified immunity unless they violated constitutional
rights that were “clearly established” at the time of their conduct. Pearson v.
Callahan, ___ U.S. ___, 129 S. Ct. 808, 815–16 (Jan. 19, 2009).
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No. 08-60516
Because no material facts are in dispute except the cause of Loggins’s
death (which we assume to be positional asphyxia), we hold that no reasonable
jury could have found that the deputies used excessive force to subdue Loggins.
This conclusion relieves the deputies as well as Carroll County of § 1983
liability.
Hill’s burden was to create a triable fact issue that four-point restraints,
which are after all a variety of handcuffing, pose such a serious risk of inflicting
death by positional asphyxia that the method is necessarily or frequently
disproportionate to the need to restrain an arrestee. She then had to create a
material fact issue as to the unreasonableness of the deputies’ use of such force
against Loggins in these particular circumstances.
To carry her burden, Hill relies on this court’s decision in Gutierrez v. City
of San Antonio, 139 F.3d 441 (5th Cir. 1998); on the “San Diego Study”
concerning four-point restraints; and on testimony of police procedure expert,
George Kirkham and forensic pathologist, Dr. Werner Spitz.2 She also notes that
a number of law enforcement agencies have banned or limited this method of
prisoner control.
The origin of concern about four-point restraints is a study conducted for
the San Diego Police Department by Dr. Arnold Reay, which concluded that
“hog-tying” may create a substantial risk of death or serious bodily injury when
a combination of (1) drug use, (2) positional asphyxia, (3) cocaine psychosis, and
(4) hog-tying or carotid choke hold is present. Final Report of the Custody Death
Task Force (unpublished, June 1992), cited in Gutierrez, 139 F.3d at 446. See
also Donald T. Reay, et al., Position Asphyxia during Law Enforcement
2
When the court ruled on the deputies’ summary judgment motions, it had only
affidavits of Kirkham and Dr. Spitz before it. They were later deposed in connection with
Loggins’s claim against the County. This opinion has incorporated a review of the deposition
testimony. Objections to the admissibility of Dr. Spitz’s testimony have not been preserved on
appeal.
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No. 08-60516
Transport, 13 AM. J. FORENSIC MED. PATHOLOGY 90 (1992); Donald T. Reay, et
al., Effects of Positional Restraint on Oxygen Saturation and Heart Rate
Following Exercise, 9 AM. J. FORENSIC MED. PATHOLOGY 16 (1988). In Gutierrez,
this court found material fact issues barred summary judgment in favor of
arresting officers “when a drug-affected person in a state of excited delirium is
hog-tied and placed face down in a prone position.” Gutierrez, 139 F.3d at 451.
The arresting officers were allegedly aware of the San Diego Study, and they
were allegedly aware that the arrestee met its criteria. Gutierrez does not hold
four-point restraint a per se unconstitutionally excessive use of force, nor does
it extend beyond its facts as a mirror of the then-unchallenged San Diego Study.3
See Wagner v. Bay City, Texas, 227 F.3d 316 (5th Cir. 2000).4 Taken on their
own terms, neither the San Diego Study nor Gutierrez raises a triable fact issue
in this case where there is no evidence of drug abuse or drug-induced psychosis.
The testimony of expert witness Kirkham criticizes the deputies for using
four-point restraints based on anecdotal evidence of in-custody prisoner deaths
and his understanding of the San Diego Study. Kirkham conceded, however,
that he was not qualified to give a medical opinion of the physiology that may
cause positional asphyxia to result from hog-tying, nor could he estimate the risk
of death associated with four-point restraints compared with other forms of
prisoner control. At most, Kirkham explained that the deputies had other
options available and applying four-point restraints was therefore unnecessary:
Q. Well, wouldn’t [the attempts to place Loggins in the vehicle
with just leg restraints and handcuffs] be important to your
3
A more recent study by Dr. Tom Neuman casts doubt on the conclusions of the San
Diego Study. Tom Neuman, et al., Restraint Position and Positional Asphyxia, 30 ANNALS OF
EMERGENCY MEDICINE 578 (1997).
4
Wagner points out that this court has upheld the use of choke holds or pepper spray
as constitutionally permissive methods of restraint. Wagner, 227 F.3d at 324, n.6., citing
cases.
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No. 08-60516
understanding of when they decided to [link the wrist and
ankle cuffs]?
...
A. All I’m saying is, look—and I’ve loaded my share of resistive
prisoners in the back of patrol cars. And I know it’s difficult
to get them in sometimes. But they should have been
able—two officers should have been able to get her in the
back. You know, one that pushes her in, the other one drags
her through, which is pretty much what they did. Then
you—but you don’t leave her on her belly, and you don’t leave
her hog-tied.
...
Q. She can create a full L shape [by bending at the waist],
correct?
A. Yeah, but you can simply pull her leg—one person pulls her
legs back while the other person goes around and
pulls—grabs the forward part of her body and pulls her in.
Then you straighten her up and belt her in there.
The mere existence of alternatives —admittedly more difficult for the officers or
more risky for Loggins—is not probative of the excessiveness of four-point
restraints.5
Dr. Werner Spitz, Hill’s medical expert, also failed to provide the necessary
evidence of the risks associated with four-point restraints. He relied heavily on
the San Diego Study, while acknowledging the existence of the later Neuman
study that raises doubts about its conclusions. He admitted Loggins did not
exhibit evidence of drug abuse or cocaine-induced psychosis, two critical factors
in the San Diego Study. He conceded his own publication on positional asphyxia
observes that when deaths occurred, the arresting officers had placed pressure
5
Kirkham’s discussion of other control plays a limited but important role in Hill’s proof
by showing that forbidding this practice would not unduly restrict police. See Tennessee v.
Garner, 471 U.S. 1, 19, 105 S. Ct. 1694 (1985)(“we would hesitate to declare a police practice
of long standing ‘unreasonable’ if doing so would severely hamper effective law enforcement.”)
But this testimony does not relate to whether the restraint was excessive, only to whether it
was necessary.
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No. 08-60516
on the back of the hog-tied prisoner. No vertical pressure was applied to
Loggins. He declined to estimate or refer to any statistical proof of the physical
danger associated with four-point restraints.
While characterizing the restraints as dangerous when applied to a
morbidly obese woman, Dr. Spitz could not cite a single journal or report
supporting this position. His conclusional analysis is simply that a five-foot-four
inch person weighing 200 pounds who is conveyed on her stomach in a police car
while she endures four-point restraints would “stand a good chance” of dying.
Nevertheless, he conceded that even Dr. Reay acknowledges that four-point
restraints are “physiologically neutral.” In sum, Dr. Spitz admitted that his
diagnosis depended, in the absence of any pathological findings, on the
circumstances surrounding Loggins’s death. He found Loggins’s case to be
“unique”.
Dr. Spitz’s testimony fails to raise a material fact issue that the use of
four-point restraints was objectively unreasonable. On the general level, he
offered no quantification or studies showing, apart from the specific
circumstances of the San Diego Study, that four-point restraint is inherently
dangerous to arrestees who are not drug abusers exhibiting cocaine-induced
psychosis. Nor did he explain why four-point restraints are inherently
dangerous apart from the critical factor described in his own book, the “loading”
or placing of pressure on the hog-tied individual’s arms, shoulders or back.
WERNER SPITZ, ET AL., MEDICOLEGAL INVESTIGATION OF DEATH 830-33 (4th ed.
2005). Whether four-point restraints are generally excessive in the
circumstances described by these publications is a debate for another day,
however,6 because this case presents none of the additional contributing or
associated factors that cast doubt on the propriety of the restraints. A jury could
6
See Price v. County of San Diego, 990 F.Supp 1230 (S.D. Cal. 1998) (complete
discussion of physiological consequences of hog-tying.
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No. 08-60516
not extrapolate from these publications an inference that applying four-point
restraints to Loggins was inherently dangerous.
Dr. Spitz’s analysis of Loggins’s case demonstrates at most that her body
reacted in a “unique” way to the restraints. This testimony is insufficient to
create a fact issue as to the objective reasonableness of the deputies’ actions.
The deputies cannot be held responsible for the unexpected, albeit tragic result,
of their use of necessary force. Judged from the perspective of an officer at the
scene of Loggins’s arrest and transportation, as Graham, supra, requires, the
deputies had no objective basis not to use four-point restraints. Dr. Spitz’s
criticism, founded on the singularity of Loggins’s death, is just the sort of
hindsight that Graham cautioned against.
On the other side of the excessive force ledger, the sheriff’s office was
called in because Loggins was in a fight. She refused to turn loose of her victim
voluntarily. She fought with Deputy Spellman, assaulted him with his own
flashlight and physically taxed two deputies as they restrained her legs and
repeatedly tried to put her in a squad car before they resorted to four-point
restraints. She continued to squirm, kick and twist even after being hog-tied.
This level of demonstrated violence required stern control measures.
A thorough review of the trial court record persuades us that summary
judgment was warranted on Hill’s excessive force claim. She failed to develop
a material fact issue that the deputies’ use of four-point restraints was
unnecessary, excessively disproportionate to the resistance they faced, or
objectively unreasonable in terms of its peril to Loggins. This holding should not
be read to condemn or condone the use of four-point restraints. We conclude
only that Hill did not meet her burden of proof in this case.
B. Failure to Monitor
Hill includes failing to monitor Loggins within her Fourth Amendment
unreasonable seizure claim. Kirkham, her police procedure expert,
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No. 08-60516
characterized the transport of Loggins from Carrollton to Grenada as “the thing
that’s most singly critical in terms of the events that occurred.” He asserted
that, rather than being driving on her stomach in four-point restraint, Loggins
should have been calmed down by an officer and an officer should have ridden
in the back seat with her during transport.
This claim sounds not in the Fourth Amendment but in the Fourteenth.
See Nerren v. Livingston Police Department, 86 F.3d 469, 473 (5th Cir. 1996)
(“[a]fter the initial incidents of a seizure have concluded and an individual is
being detained by police officials but has yet to be booked, an arrestee’s right to
medical attention, like that of a pre-trial detainee, derives from the Fourteenth
Amendment”). Although the panel in Gutierrez suggests otherwise, 139 F.3d at
452, a later panel of this court cannot overrule an earlier panel decision. Harvey
v. Blake, 913 F.2d 226, 228 n.2 (5th Cir. 1990); see also Wagner, 227 F.3d at 324-
25 (applying Fourteenth Amendment). Nerren, as the earlier decision, therefore
controls. The claim for failure to monitor is, at its heart, the failure to provide
medical attention due to insufficient monitoring.
With the constitutional basis for the claim clarified, we briefly address the
merits. The standard for this claim is well-established: the plaintiff must show
that an officer acted with subjective knowledge of a substantial risk of serious
medical harm, followed by a response of deliberate indifference. Nerren, 86 F.3d
at 473. Although Hill’s evidence might imply negligence by Deputies Spellman,
Mims and Jones, she submitted no evidence that they possessed subjective
knowledge that their chosen method of transporting Loggins posed a substantial
risk of serious medical harm. No evidence contradicts Deputy Jones’s testimony
that he did monitor her while driving to the jail and he could hear her in the
back seat muttering or talking for at least half the journey to Grenada. No
evidence supports a fact issue that the deputies acted with deliberate
indifference toward Loggins at any time.
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No. 08-60516
For the foregoing reasons, Hill has not created a genuine issue of material
fact concerning the existence of a constitutional violation; we need not address
the deputies’ qualified immunity or the county’s liability under Monell. The
district court’s judgment in favor of the defendants is AFFIRMED.
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