Qualified Immunity

Dallas Cops Who Joked About Pinning a Man to the Ground Until He Stopped Breathing Get Qualified Immunity

The decision vividly illustrates how the doctrine shields police from accountability for using excessive force.

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On a Monday night in August 2016, Tony Timpa, a 32-year-old Dallas resident, called 911 to report that he was "having a lot of anxiety" about a man he feared would harm him. Timpa mentioned that he had received several psychiatric diagnoses—schizophrenia, depression, bipolar disorder, and anxiety disorder—but had not taken his medication that day. After police arrived in response to that call and other reports of a man behaving erratically near 1728 West Mockingbird Lane, Timpa yelled, "You're gonna kill me!" He was right.

Timpa, who had already been handcuffed by a security guard, died while being pinned to the ground face down by several police officers for about 15 minutes, during which time he pleaded with them to stop and cried for help over and over again. The officers, while intermittently showing signs of compassion, joked about Timpa's predicament and the possibility that they had killed him.

This week, in a decision that vividly illustrates how difficult it is to hold cops accountable for misconduct under a federal statute that authorizes lawsuits against government officials who violate people's constitutional rights, a federal judge granted qualified immunity to those officers. Whether or not they violated Timpa's Fourth Amendment rights, U.S. District Judge David Godbey ruled, the law on that point was not "clearly established" on the night he died.

The circumstances of Timpa's death are broadly similar to what happened when George Floyd was suffocated by Minneapolis officers on May 25, a horrifying incident that provoked nationwide protests and calls for police reform. One of the proposed reforms is the abolition of qualified immunity, a court-invented doctrine that blocks federal civil rights claims when plaintiffs cannot identify sufficiently specific precedents. Godbey's decision shows how formidable that barrier is.

Timpa's family argued that the Dallas officers' use of force was clearly unconstitutional under Gutierrez v. City of San Antonio, a 1998 case involving a man who died while restrained face down in the back of a patrol car. In that case, the U.S. Court of Appeals for the 5th Circuit, which includes Texas, allowed an excessive force claim to proceed. In both cases, the lawsuit filed by Timpa's relatives notes, police knew the detainee was under the influence of cocaine. The 5th Circuit in Gutierrez held that the use of force can be excessive "when a drug-affected person in a state of excited delirium is hog-tied and placed face down in a prone position."

Godbey noted that Timpa, although restrained on his stomach while his hands and feet were shackled, was not hog-tied, which in his view was enough to make Gutierrez inapplicable. He cited three subsequent cases in which the 5th Circuit had blocked excessive force claims against officers who allegedly used deadly prone restraints against resisting detainees.

Godbey likewise was unimpressed by decisions in which five other federal appeals courts had ruled that prone restraints causing death or severe injury did or could qualify as excessive force. Those rulings, he said, did not amount to "a 'robust consensus' of persuasive authority," because the U.S. Court of Appeals for the 8th Circuit reached a different conclusion.

This year the 8th Circuit blocked an excessive force claim against St. Louis police officers who allegedly killed a man arrested for trespassing by pinning him face down on the floor of his jail cell. In that case—which complicates a federal lawsuit over George Floyd's death because the 8th Circuit includes Minnesota—the appeals court concluded that "the Officers' actions did not amount to constitutionally excessive force," because they "held [the arrestee] in the prone position only until he stopped actively fighting against his restraints and the Officers."

Was Tony Timpa "actively fighting" the officers who killed him? Citing the "custodial death report" filed after the incident, his family notes that he "never threatened" the officers, "never resisted being handcuffed," "never attempted to hit or fight with" them, "never used a weapon to threaten or assault" them, and "never attempted to flee." But in Godbey's view, those facts were not enough to establish that the officers used force against a "non-resisting" detainee, as Timpa's family argued. "Although Timpa was not struggling for the entire duration of Defendants' restraint of him," he writes, "the body cam video and audio shows that he continuously moved and yelled in contravention of the officers' directives, kicked at [two officers], and was struggling enough that [a paramedic's] first attempt to take his vitals was unsuccessful."

Recall that the cops ostensibly were there to help Timpa, who was obviously freaking out and according to his family was "suffering drug-induced psychosis." The officers clearly recognized that Timpa was intoxicated, since they repeatedly asked him what drug he was on, and he told them he had taken cocaine. Yet they proceeded to restrain him for 15 minutes in a position that made it difficult for him to breathe. Given the circumstances, Timpa's "resistance," which the officers repeatedly described as "squirming," was perfectly understandable. Godbey's framing suggests that someone who panics because he is being smothered to death thereby justifies the use of force that caused him to fear for his life.

"Will you let me go, please?" Timpa begged. "Please let me go….Help me! Help!…Help me. Help me. Help me….Oh God, please. Oh God, please….Stop, Officer….It hurts! Please take it off." He repeatedly lifted and turned his head, as if struggling to breathe.

An expert hired by Timpa's family concluded that he "died due to mechanical asphyxia." The Dallas County medical examiner concluded that Timpa suffered "sudden cardiac death due to the toxic effects of cocaine and physiological stress associated with physical restraint." She added that because of "his prone position and physical restraint by an officer, an element of mechanical or positional asphyxia cannot be ruled out."

Video from the body camera worn by Officer Dustin Dillard, who pinned Timpa to the ground by kneeling on his back, shows Timpa lying with his nose buried in the grass between the sidewalk and the street, unresponsive and apparently unconscious. The officers conclude that he has fallen asleep. "If I was squirming like that, I'd be sleeping too," says one. "Hey, time for school! Wake up!" says another. The two cops—Cpl. Raymond Dominguez and Officer Danny Vasquez—elaborate on the gag, laughing while portraying Timpa as a child who does not want to go to school and describing the breakfast of "scrambled eggs" and "tutti-frutti waffles" waiting for him.

After the cops lift Timpa onto a gurney and he remains unresponsive, Dillard asks a paramedic, "Is he knocked out? He ain't dead, is he? He didn't just die down there, did he?…Is he breathing?" As Timpa is wheeled to the ambulance, Dominguez rubs his chest and, getting no response, turns toward Dillard's body camera, his face screwed into a comical "yikes" expression. "I hope I didn't kill him," Dillard says. His colleagues laugh in response. "What's all this 'we' shit?" Vasquez says, although Dillard did not actually say we. "I love how all this became a 'we.'" Another officer jests, "We ain't friends."

After a paramedic examines Timpa in the ambulance and announces that "he's not breathing," Dillard responds, "He's not breathing? Oh, shit." Another paramedic says "he's dead," at which point Sgt. Kevin Mansell, who is on the phone with Timpa's mother, exclaims "He's what?!" and hangs up.

The officer's nonchalant, jocular demeanor, while striking in its callousness, makes it clear that they did not intend to kill Timpa. But Timpa's family argues that they recklessly caused his death by using force that was not warranted in the circumstances. Or I should say that they want to make that argument. Godbey's decision, unless it is overturned by the 5th Circuit, means they will not get a chance to pursue that claim.

"This is exactly why qualified immunity must be abolished or at least modified," says Geoff Henley, the attorney representing Timpa's family. "It allows officers to continue to use force that we all see and know to be excessive simply because there is no previous ruling prohibiting precisely the same kind of force. It's squeezing a football through the eye of a needle."

The family's chances of winning an appeal do not look good, even if the 5th Circuit decides that Dillard and the other officers used excessive force. Two years ago, the appeals court concluded that members of the Texas Medical Board had violated a doctor's Fourth Amendment rights by searching his office and records without a warrant. But the board members still got qualified immunity, because "the unlawfulness of the defendants' conduct was not clearly established at the time of the search."

Judge Don Willett, who felt compelled by precedent to concur in that decision, wrote a separate opinion in which he decried the unjust and irrational consequences of qualified immunity. "To some observers," he noted, "qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly."

Willett added that the doctrine creates a "Catch-22" because courts frequently grant qualified immunity without even deciding whether the defendants' conduct was unconstitutional. "Plaintiffs must produce precedent even as fewer courts are producing precedent," he wrote. "Important constitutional questions go unanswered precisely because those questions are yet unanswered."

That is exactly what happened with the lawsuit filed by Timpa's family. Godbey implies that Timpa's resistance—which to many people who watch the body camera video looks like a man's desperate struggle to stay alive—could justify the force used against him. But Godbey never squarely addresses that issue. The decision therefore not only lets these defendants off the hook but allows other police officers in the 5th Circuit to do exactly the same thing again, now and forever. As Henley observes, "there will be more unnecessary deaths unless there is real legal change."

NEXT: Preliminary Thoughts on the Mazars and Vance Cases [Updated with Link to my SCOTUSblog Article on Mazars]

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  1. What’re the races of everyone involved? How does this intersect with institutional racism?

    1. From the video, it looks like the victim and all the cops were white.

      1. Then we can go back to not caring, good.

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      2. No wonder this is the first I’ve heard of this case.

  2. The officer’s nonchalant, jocular demeanor, while striking in its callousness, makes it clear that they did not intend to kill Timpa.

    “Remember, Guys: ‘Keep It Upbeat!'”

  3. Yeah, I don’t get this decision. “We didn’t know that breaking into this person’s apartment and manhandling him without evidence of a crime was going to violate his rights.”

  4. >>>only until he stopped actively fighting against his restraints and the Officers

    due to arrested ventilation and circulation.

    1. Another small victory for the Drug War. Managed to kill one more drug user, and all the cops went home safely.

      1. …all the cops went home safely.

        That’s the important thing.

  5. Godbey’s framing suggests that someone who panics because he is being smothered to death thereby justifies the use of force that caused him to fear for his life.

    Law enforcement, attorneys and judges should all experience first hand what they’re so casually dismissing in assertions like this.

    1. You mean death? That’s a good start. I’ll bring fuel for the woodchippers.

  6. Of course they can be held accountable, charge them with involuntary manslaughter.

    1. This is why I don’t get the fascination with QI. You can still sue the city. You can still charge the cops. Removing QI just means that you can sue the Police. And all that means is that the City will pay again. How is that going to change shit? The city already pays out hundreds of millions in wrongful X suits, and they still employ gawdawful cops.

      1. I don’t think you can sue the city for an individual officers actions.

        And at the very least, it should be patently ducking obvious that pinning someone face down on the ground for an extended period of time is excessive force. The whole premise that they deserve no liability if there is no “clearly established” law is beyond ludicrous.

        1. You absolutely can sue the city. It happens all the time. I had a friend who sat on a jury in Denver, where the police shot a man in a car during a police chase.

          And the city paid a big settlement. As long as you can prove that the government training was defective, or that it was knowingly employing defective officers, you can convince a jury to pay you the money.

          So again, how would the ability to sue the specific cop(s) help in any way? The city is already liable if they employ bad cops. It literally costs them hundreds of millions of dollars a year, nationally. And yet they continue to employ these bad cops.

          And if we fast forward to a world where that Cop is also named in the suit, so what? His insurance or his union rep will represent him. And nothing else will happen.

  7. What a bunch of untrained clowns.
    You keep your knee on a suspect until he dies.
    Then you claim self defense and plant a gun on him.
    You would think these cops would remember what they were instructed to do with a suspect when they were in the police academy.

  8. “there will be more unnecessary deaths unless there is real legal change.”

    Not sure what this means exactly, now that we are in riotous times.

    Is OP thinking that Godbey might be up against the wall if reform isn’t here swiftly?

    1. Perhaps he’s talking about vigilantes hunting killer/bad cops. Not sure that would qualify as “unnecessary deaths” though.

  9. So, judicial precedent takes priority even in the face of the actual, federal law?

    Congress already wrote the law, the courts simply have a precedent of not following it.

    Why are we still talking about this?

    McVeigh was right.

    1. What precisely was McVeigh right about? Murdering toddlers? Take that shit somewhere else.

      1. You tell him, Jeff. Gotta murder the kids before they are actual toddlers. Early intervention, amirite. Jeff prefers Waco type murdering of toddlers committed by state actors. Guess the ATF folks did not bother to warn the daycare cause, meh, helps with the ATF cause.

        And, Jeff, he did not mention killing children. It was you who suggested that. Do not throw the baby out with the bath water.

      2. He was right about the FBI and govt in general.

        The FBI using women and children as human shields does not earn them any sympathy from me.

  10. Bad jokes do qualify for “Qualified Immunity”.
    Bad jokes while killing someone probably shouldn’t! In this scenario it appears that it does. Hip hip hurray for law enforcement.

    1. “Bad jokes do qualify for “Qualified Immunity” right along with reckless regard for human life.” FTFY

      I had a fish on the hook the other day. That fuckin’ fish would not stop squirming so I could get it off the hook and put it back in water. Fish died on the hook and it was its own damn fault, I tell ya.

  11. Well of course he did.
    Sigh.

    1. Further proof this is ENBs sock

  12. The union can confirm that these fine upstanding officers are fully paid on their dues.

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  14. wow, dallas joked, am surprise seeing this naijapickup

  15. Every profession, especially ones that deal with harsh realities, uses often harsh humor to deal with the stress of their profession. A lot of people would be shocked to hear what surgical teams discuss while their patients are unconscious, or EMTs and firefighters in the breakroom, soldiers and sailers — heck, the phrase “swear like a sailer” exists for a reason.

    But now we’ve criminalized humor. We expect people to act like saints even in what they believe are private moments between comrades.

    1. Exactly.

      A good friend shared who was a fire captain in the local fire district shared that with me some time ago. He said it was how they dealt with pulling out fire and accident victims who were dead and mangled because if they didn’t, they’d all end up going insane. I think we call that PTSD these days.

      He did elaborate on two points though: First, they never did this within earshot of the victims. And second, there was nothing that could erase the horror if pulling small, dead children out of a situation. Nothing.

      His first elaboration was because of personal experience. He had been in a bad car wreck and was unconsious. When the EMTs cut him out of the wreck and pulled him free, one of them said to the other, “This one’s dead or will be shortly”. He remembered hearing that and getting angry even though he was unconscious and remaind that way for several days.

  16. Libertarians want to criminalize speech. Got it.

    1. Speech is fine. It’s the actions that are taken based on that speech that aren’t. Particularly by third parties damaging the “offender” simply to appease the mob.

      You are certainly familiar with the term “inciting a riot”?

      Rick: How can you close me up? On what grounds?

      Captain Renault: I’m shocked, shocked to find that gambling is going on in here! [a croupier hands Renault a pile of money]

      Croupier: Your winnings, sir.

      Captain Renault: [sotto voce] Oh, thank you very much.
      [aloud]
      Captain Renault: Everybody out at once!

  17. The joke is irrelevant.

  18. Qualified Immunity is a red herring, what really matters is that prosecutors would never charge these cops so a lawsuit is the only route to get any accountability.

    What really needs to happen is that there needs to be a special police prosecutor in every State AG’s office that prosecutes only police, and their funding depends on getting convictions. If we can have special prosecutors in state AG offices that only go after oil companies then we can have special prosecutors for police.

    1. Mark Twain included a passage about how klansmen infiltrated juries to later anonymously murder veniremen who convict one of their gang. This Reconstruction vigilantism is every bit the way the courts work in Texas today. Anyone opposed to lynching is quickly weeded out in jury selection or simply laughed out of court.

  19. Yep, you can thank the BAR Association for all of this. ALL of it.

    “illustrates how difficult it is to hold cops accountable for misconduct under a federal *statute*”
    Don’t bring any action against these criminals in a civil/statutory jurisdiction. A Tort Claim is under Common Law jurisdiction via constitutional law, where statutes have zero bearing and neither does their statutory “qualified immunity”.
    Recognize the criminal BAR Association for what it is and learn to bring a Tort Claim on your own. NEVER have a BAR Association attorney “represent” you. If anything, keep them only as Legal Council, but never ever speaking for you. Make certain jurisdiction is ALWAYS in constitutional Common Law.
    https://www.nationallibertyalliance.org/

  20. The circumstances of Timpa’s death are broadly similar to what happened when George Floyd was suffocated by Minneapolis officers on May 25

    And by “broadly similar” you mean “not even remotely similar”…right? I mean, other than that the outcome was the same for both men.

  21. Austin band Uranium Savages did a parody “On the Bayou” after redneck Houston cops murdered veteran José Campos Torres in 1977. A way was found for government to stop deejays from playing the song all day long, and the band was even forced to take that track off their Live at Soap Creek Saloon album. The only reason these Dallas lynching cops are on record as chuckling about bagging their recent victim is an LP vote count of about 12 million nationwide on all ballots. Dallas County now has an exemplary LP well worth supporting with contributions.

  22. I’ll pose the same question that I ask every time someone tries to blame the death on the prone restraints. ExDS deaths can occur even if police take no action because the affected individual has ODed on top of underlying medical conditions. Will you support legislation that protects officers from liability if they refuse to take certain actions to help someone in need? If you do not, then you have put officers in a catch 22 where they must risk jail time and civil liability every time they help someone who ODs.

  23. Sullum’s past suggestions: end prohibitionist asset forfeiture looting and decriminalize enjoyable substances–both qualify as defunding killers with badges. Democrats and God’s Own Prohibitionists both send cops with guns out to kick down doors and rob property over plant leaves, fungi and succulents. Eliminating pelf and boodle incentives for violence against unarmed citizens has invariable reduced that very abuse of deadly force. There is plenty of money left over to pay cops to stop theft, fraud and violence with victims.

  24. “Vividly?” “VIVIDLY?” It seems the cops were effing JOKING. You want to cancel cops joking? Gimme a break here!

  25. Well why when we here qualified immunity is it only talked about being repealed when it comes to cops? Andrew Cuomo sent thousands to their deaths and the idiots in the media and even here at reason have absolutely NO PROBLEM with it. Same with the He/She thing in Pennsylvania that ordered Covid-19 patients into nursing homes after taking his or her or zi or sur or it’s mom out of the nursing home (because thats what her Momm wanted, HAH!) But a cop pushes down an old man in Buffalo and Cuomo wants him in jail. Politicians need to give it up first or shut the hell up. Enough of yes for me, but not for thee.

    But just a simple heads up. If you start suing cops and politicians for their numerous screw ups no one would take the job or mor importantly do the job. They just assume let you be killed than intervene. They will just become paper pushers. Show up and write a report of what happened but I can’t do anything or I will be sued. Much better to fire bad employees and politicians for that matter

    1. QI is the endgame.

      There is nothing of the Federal government since Wilson that is worth keeping.

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  28. This keeps happening and has been happening for years. In SoCal, their was a famous case a about a decade ago, where the local cops beat a homeless man, Kelly Thomas, to death, and it took quite a while, They got tired while they were beating him to death and took breaks and cracked jokes. They knew him, he was a local bum, and I guess they all just decided that they were going to kill him and that they could get away with it. It got filmed and people were completely disgusted. Of course the 2 cops that were charged, out of 3 to 5 involved, were found not guilty, and not much seemed to happen except for a civil judgement against the department. These guys are probably still working as cops. I don’t understand how anyone can think that our policing system isn’t broken.

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