Qualified Immunity

Cops Who Killed a Man While Holding Him in a Hog-Tie Position Got Qualified Immunity. The Appeals Court Wasn't Having It.

Up for debate was whether or not it was "clearly established" that officers cannot apply injurious force to a subject who isn't resisting.


A group of police officers who hog-tied a man and held him face-down on pavement for five-and-a-half minutes, eventually resulting in his death from asphyxiation, are not entitled to qualified immunity and can thus be sued for damages, a federal court ruled last month.

The decision overturns a lower court ruling, which held that the family didn't have the right to bring any such suit before a jury. It's another example of just how subjective qualified immunity decisions can be, which often prohibit victims from holding state actors accountable in civil court when the misconduct they're alleging isn't outlined almost exactly somewhere in a previous court precedent.

On April 12, 2013, a man named Jesse Aguirre was seen walking near the median on a busy thoroughfare, prompting a response from San Antonio Police Department (SAPD) Officers Cristina Gonzales, Roberto Mendez, Jennifer Morgan, and Bettina Arredondo. 

Gonzales, who was the first to arrive and who blocked off the eastbound left lane with her police cruiser, can be seen in the dash cam footage approaching Aguirre with her firearm pointed at him. "I'm going to shoot you, motherfucker," she threatened. Officers Morgan and Mendez came next, brandishing a gun and taser, respectively. Aguirre subsequently stopped walking and leaned down on the median, at which point Gonzales moved forward and handcuffed him. According to the dash cam footage, he did not resist, the decision notes.

After transporting Aguirre over the median and patting him down—he was unarmed—the officers placed him in the prone position face-down on the ground. Gonzales crossed his legs and leaned on them as she pushed them up toward his buttocks, while Mendez alternated between digging his knee into Aguirre's back and using his hand to press Aguirre's face into the pavement. Mendez—along with Officer Arredondo, who had recently arrived at the scene—held his arms and back.

Officer Benito Juarez, a medical tech, got to the scene after Aguirre had been subdued, "but the record does not disclose that Juarez offered any advice or assistance to the other Officers about the manner in which Aguirre was being held," the ruling says. Arredondo conceded that she noticed Aguirre's lips had turned a shade of blue, but she chalked it up to drug use.

After those five-and-a-half minutes passed, the cops observed he wasn't breathing. "At this point, the Officers appear to be in good spirits; according to the Plaintiffs, in the dashcam videos," the decision adds, "Juarez can be seen smiling as he jogs to his vehicle, and several other Officers likewise appear to be smiling and laughing as they await Juarez's return around Aguirre's body."

That infectious energy would soon fade as they unsuccessfully tried to revive him. An autopsy report classified the death as homicide by asphyxiation.

"It has long been clearly established that, when a suspect is not resisting, it is unreasonable for an officer to apply unnecessary, injurious force against a restrained individual, even if the person had previously not followed commands or initially resisted the seizure," wrote Judge James L. Dennis for the U.S. Court of Appeals for the 5th Circuit. "If the Officers unnecessarily placed Aguirre in the maximal-restraint position when there was no reason to believe he had committed a serious crime, that he posed a continuing threat to the Officers or public safety, or that he was resisting the Officers' seizure or holding of him, the Officers violated Aguirre's clearly established constitutional rights."

The cops dispute Aguirre's compliance. Dennis wasn't convinced. "This court's own review of the video evidence at minimum raise genuine questions about whether it was objectively reasonable to believe Aguirre was actively resisting," he wrote, "or even physically capable of posing an immediate safety threat." A police excessive force expert reached the same conclusion in sworn testimony.

Dennis makes the matter sound beyond debate—a welcome decision that will give Aguirre's estate a chance at accountability. But the doctrine of qualified immunity has become so granular that judges often side with government officials if plaintiffs aren't able to furnish a court precedent with almost exactly the same facts.

The 5th Circuit itself provides several interesting examples. Take Trent Taylor, who prison guards forced naked into two psychiatric unit cells that were in deplorable shape—one defaced in human feces, the other with a raw sewage leak on the floor. Though the federal court agreed that such treatment violated his Eighth Amendment rights, it barred him from suing because the exact amount of time he spent in those cells—six days—had not yet been enshrined somewhere in pre-existing case law.

Though the U.S. Supreme Court has shied away from fundamentally reconsidering qualified immunity, it has shown a willingness to make subtle moves on the doctrine as of late. That includes the above 5th Circuit decision, which the high court overturned in the fall. In February, so too did it reverse another 5th Circuit ruling, which had awarded qualified immunity to a prison guard who pepper-sprayed an inmate without provocation. Neither move from the Supreme Court altered qualified immunity itself. But if the 5th Circuit's decision in Aguirre is any indication, perhaps those gentler nudges are having some effect.

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  1. Now, when so many white supremacists are threatening our very Republic, is no time to be going soft on crime and restricting the police from enforcing the law beyond its full extent. Police are goddamn heroes for doing the most dangerous job in the world for almost no pay but only a sense of patriotic duty and don’t you forget that, you commie bastard. If a policeman decides he wants to whomp you upside the head for no reason whatsoever, you just say “Thank you sir, may I have another” like a good boy.

    1. Nice, channeling your inner Hunter S Thompson.

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  2. The article doesn’t say whether the police in question were charged with criminal offenses. It doesn’t appear that they were:

    “An autopsy found Jesse Aguirre had a mixture of alcohol and cocaine in his body.

    As a result, the medical examiner said he died of “excited delirium.”

    —-KSAT, ABC San Antonio


    From the story, it appears that the suspect stole a car and crashed it, and was leaving the scene of the crime when the police arrived. The police may not have been charged with a crime because the medical examiner, apparently, found that the cause of death was the alcohol and cocaine.

    Maybe you’re someone who believes that cops should be sued personally for causing the deaths of suspects–even when the medical examiner has determined that the cause of death wasn’t the police. If that’s what you think, you should probably, at least, point out the pertinent fact that the medical examiner, apparently, did determine that the death was due to alcohol and cocaine rather than police brutality.

    1. ‘Excited Delirium’ is a fantasy condition made up by police.

      1. Well, there’s your story then!


        By not just burying the lede but making it invisible, they lost what may be the key libertarian aspect of the story.

        If the reason these cops aren’t facing criminal prosecution is because the medical examiner gave a B.S. answer as the cause of death, then maybe we should be focusing on that aspect of the case. Even if the story should only be revised to suggest that civil court is the only appropriate venue because the medical examiners are making criminal prosecution practically impossible, that’s an important aspect of the debate over qualified immunity.

        1. That’s just too complex a concept for the leftitarians.

          Billy needs his narratives kept plain and simple.

        2. The purpose of the story is that QI is a ridiculous defense if the facts are as stated by the plaintiff, and that the court got it right by dismissing QI in the case, which is unusual in QI cases. Writers aren’t derelict because they didn’t choose to write about a topic you find interesting.

          1. If the plaintiff can’t get justice through the criminal courts, that is a pertinent fact whether I think so or not.

            Because she can’t get justice through the criminal courts is a good reason why she would seek it through civil court.

            1. Plaintiff’s can’t ever get justice through the criminal courts. Only the public can seek justice that way.

              But your larger point is that victims (and thus, we the public) can’t get justice through the criminal courts. That problem, however, is much bigger than a BS medical examiner’s report. There are too many conflicts of interest between the police and the rest of the prosecution team (including medical examiners) for that to ever be a guaranteed path to justice. Congress allowed civil suits in recognition of the fact that criminal justice is too often out of reach.

              1. ^This.

        3. Ken suddenly finds medical science credible, now that the issue is excusing the death of a citizen at the hands of the police, rather than protecting the more vulnerable among us. Amazing how discerning his taste in accepting expertise is.

          1. You’re such a toxic little queen.

      2. So much for trusting the science, eh?

        ExDS is exactly that, a condition. It isn’t a diagnosable medical disease because it isn’t supposed to be. It describes a combination of SYMPTOMS that people exhibit during adverse reactions to drug overdoses. There have been countless examples of people dying in such circumstances and if you weren’t paying attention over the past year, George Floyd.

        There are even cases of police officers who died because of adverse reactions.

        It’s like Covid in a sense. Some people bounce back as if it were a regular cold, millions of others die from complications. There is no uniform reaction to foreign substances entering our bodies and there are always exceptions.

    2. Or maybe the test for a criminal conviction is higher than a civil award, and the DA takes that account when deciding on whether to charge.

    3. Medical examiners, district court judges, district attorneys, all have a long and sordid history of excusing and covering up police misconduct.

  3. They all need prison. Wtf is wrong with a good portion of cops in the US?

    1. I thought even the victims of progressive education would know something about the difference between criminal court and civil court. Is there something about qualitative immunity that prevents the police from being prosecuted in criminal court for manslaughter or murder?

      1. No. Qualified Immunity does not apply to criminal cases. Either state or federal.

        1. And I strongly suspect that there are plenty of people who oppose qualified immunity because they think it has something to do with police committing crimes without any fear of being held accountable.

          1. No, you strongly suspect you are the smartest person in the room. There are many other reasons that prosecuting cops usually doesn’t work. Like the fact that the judge, prosecutor, and cop are essentially coworkers who need each others’ cooperation on every other case, so they have a strong incentive to not prosecute each other successfully.

            You are like the guy who absolutely has to correct someone who calls the monster “Frankenstein”.

            “Akchualllyyyyy the doctor was named frankenstiennnnnnn, not his monster..”

            1. You’re just angry Ken takes the time to deconstruct the utter bullshit that are your comments. So you bleat and whine.

              Poor widdle angry baby.

            2. And so you prove the common theme once again that leftists have serious trust issues.

              Judges aren’t political, except when their not being political results in an outcome I don’t like.

          2. And cops generally and justifiably do not fear being held criminally accountable for even blatant crimes. They do not fear criminal charges, not because of qualified immunity or any other judicially prescribed immunity doctrine, but because the only people who can bring criminal charges are on their side.

            1. I thought we’d already established that if the police commit crimes with impunity because of qualified immunity, they don’t understand that qualified immunity is about protecting them from civil suits.

              Are we talking about qualified immunity, on the one hand, or the cozy relationships between Democratic party machines, city councils, law enforcement unions, and district attorneys, on the other hand? Because those are related but distinct subjects.

              1. Ultimately, long term we have to talk about both. That doesn’t mean that every article about a court decision about QI needs to talk about the lack of criminal accountability on the part of police.

                The problem is driven by both together.

                On the other hand, QI reform is probably achievable, but fixing the “cozy relationships between city councils, law enforcement unions, and district attorneys” is probably impossible.

              2. “I thought we’d already established that if the police commit crimes with impunity because of qualified immunity”

                No, we haven’t established that because ” if the police commit crimes with impunity because of qualified immunity” is just false.

    2. They were raised by assholes.

    3. raspberrydinners, there is nothing wrong with a ‘good portion’ of cops in the United States. Do you travel outside the US? Try having an encounter with the cops in Laos, Peru, Uganda, Russia or Singapore (to use a few examples).

      There are literally millions of interactions between citizens and police that are unremarkable every day in this country. The truth of the matter is our police in the US are better trained, better paid, more ethical and just flat out better than just about any other police force in the world.

      Derek Chauvin is not representative of police in the US, and neither are these four. And make no mistake, I agree with you that these four cops can and should be imprisoned. They killed Aguirre.

      1. Derek Chauvin is not representative of police in the US, and neither are these four

        That’s a quaint opinion, but it just isnt true.

        Derek Chauvin and these 4 are quite representative of police in the USA. Most police think they can abuse citizens and violate their rights with impunity…and they are largely correct. The system doesn’t do anything to curb or punish bad behavior. There is no incentives for police to show any restraint.
        Aggressive policing, “closing” cases ( regardless of whether you have the right person), intimidating certain communities — these are all encouraged and celebrated within the departments. How many times do the most decorated police officers (especially the ones in vice/drug units ) wind up being some of the most corrupt fuckers out there.

        Pointing out that other countries are worse doesn’t negate the awfulness of police in America.

        The police are civil servants whose job is to SERVE and PROTECT everyone. And the system needs to be changed to force them to accept that role or face serious consequences

        1. “Most police think they can abuse citizens and violate their rights with impunity…”

          You have absolutely no factual basis for making that statement. As such it is a statement of prejudice. Thus rendering your words meaningless.

          Never mind that you are accusing them of thoughtcrime.

          1. Remember those Loveland cops who horrified the world with “Wait for it…” before the *pop* of at elderly woman’s arm breaking and being forced out of the socket?

            They weren’t fired. They resigned. Why? To make sure that when they get hired the next town over that they don’t lose any time accumulated towards their pension.

            Publicly their bosses will say their conduct wasn’t becoming of a police officer, but in private those supervisors are fist-bumping to that *pop* along with the rest.

            1. Replace your example with a horrific murder and replace the word cop with blacks and I think you’ll start to see the problem.

              Yes, you’re prejudiced against police.

          2. You have absolutely no factual basis for making that statement. As such it is a statement of prejudice. Thus rendering your words meaningless.

            You mean other than the fact that they do it with impunity? And the fact that their unions all freak out whenever someone proposes holding them accountable? And that the system shields them from accountability?

            Sure, sure…no factual basis.

            1. ChicagoTom….What data are you relying upon when you say, “Derek Chauvin and these 4 are quite representative of police in the USA. Most police think they can abuse citizens and violate their rights with impunity…and they are largely correct.”?

              That is quite a statement you made there.

              1. Find me all those police officers who believe Chauvin did something wrong and I’ll believe you when you say his callous disregard for human life and human rights was unusual for a cop.

                1. You really don’t understand how debate works, do you?

                  I’m not surprised.

              2. What data are you relying on?

                And if we are comparing other countries’ cops to ours, why pick latin America instead of western Europe, where cops are much better educated, trained, and perform much, much better?

                1. You base this upon your extensive european travels, DOL? GMaFB.

                  1. He’ll make something up, as usual.

                    1. I’ve had my identity confirmed twice on this message board. It’s not my fault you all have such narrow worldviews and boring ass lives.

                  2. You doubt I’ve been to Europe? How poor and boring are you guys?

              3. When the supposed majority of “good” cops starts publically, visibly treating cops like Chauvin just like any other criminal, then and only then will I believe that Chauvin is not representative of all cops.

                1. If good cops existed they wouldn’t tolerate bad cops. The fact that the number of cops who call out bad cops is exactly zero leads me to believe the number of good cops out there is also exactly zero.

                  1. I have never encountered one of these bad cops you refer to. Of course, I have never stolen a car, wrecked a stolen car, left the scene of an accident or walked around with cocaine in my system.

                    Maybe you keep encountering bad cops because you commit too many crimes.

                    If we abolish QI, suing every cop every day will become a cottage industry for the left. I guess then you can commit as many crimes as you want without encountering cops.

                    1. “I have never encountered one of these bad cops you refer to.”

                      Does that mean that you don’t believe that they exist at all? Have you ever personally encountered the President of the United States? If no, does that prove he doesn’t exist?

                  2. Exactly.

                  3. If good blacks existed they wouldn’t tolerate bad blacks. The fact that the number of blacks who call out bad blacks is exactly zero leads me to believe the number of good blacks out there is also exactly zero.

                    Prejudiced logic, seek within. Made it clearer for you to help.

  4. Brown cops, brown vicitim. Local news.

  5. The gentle nudges from SCoTUS are having an effect. QI is no longer reflexively granted at the District and Circuit court levels. That is a positive development.

    We will need QI in some limited form. But it can and should be curtailed a lot.

    1. I’m still not convinced that we need it even in limited form. The country did quite well without it for almost 200 years. To the best of my knowledge, no other democratic country has such a doctrine.

      Cops are already protected by a) indemnification by their employing municipalities, etc, b) favorable laws about allowable use of force and c) a very strong presumption in their favor by juries.

      Remember that QI does not just protect cops from judgement – it prevents to victims from even getting in the door to make their case.

      1. Well, I think that indemnification presents an interesting question: Namely, should taxpayers provide it, or the police unions? At this stage, I am leaning more toward police unions. Why? Because I think self-policing (pardon the pun) behavior based on the certainty that there will be severe financial consequences is a more effective, and cost efficient solution.

        I favor strict limitations on QI for sure Rossami. I have not heard a compelling argument on why it needs to be abolished. The historical argument is legit, but sort of ‘weak sauce’.

        1. I think all public sector unions should be banned.

          1. Something we actually agree on. Good for you.

            1. If I changed my username to one that was not associated with criticism of Trump and his merry traitorous cult, you would agree with a lot more that I say.

              1. No. I don’t work that way. I call out things that are not logical or with which o disagree (usually the same thing). If I agree, I say that. Like I did here.

                I call it like I see it. You say something that tracks and is accurate, I will say so. Doesn’t matter who says it.

      2. QI is like a lot of rules and regs. There was a need, the solution had unintended consequences, and now it’s hard to change.

        The discourse on policing makes me feel like we’re shifting too far in the opposite direction with QI. We know how expansive the bureaucratic state is. We also know that most Americans are unwitting felons. I think we should apply that same standard to police. More laws, more chances to break them.

        Example that Binion loves to cite (and left out from this article) is that story about SF cops who allegedly stole hundreds of thousands of dollars from two criminal suspects. The QI case, which the judge granted QI for, alleged that the cops violated 4A. The problem with the argument was that the alleged theft (which I believe was later proven to have not occurred at all) couldn’t possibly violate 4A as the goods were seized by the cops via a valid and legal warrant. In other words, if a cop steals evidence against you, they aren’t violating 4A because the cop stole from the State, not from you.

        It sounds kind of silly when you think about it too. If something was stolen, it wouldn’t return to the suspects. It would go back to the State as the suspects were charged and being tried for illegal gambling. Plus 4A says about as explicitly as possible how warrants work and the warrant was kosher.

    2. We will need QI in some limited form. But it can and should be curtailed a lot.

      We absolutely do. But it needs to be really limited to only applying when a civil servants is performing their duties properly or in good faith.

      And if it is at all a judgement call it should go to a jury.

      Personally I would want to see an anti-SLAPP type system setup where frivolous stuff can be thrown out right away early on in the proceedings.

      There also needs to be very bright lines on what conduct is immune. The rules should lean towards assuming not immune and then getting to immunity rather than the other way around.

      For example, any illegal act or violation of rights should be actionable ,regardless of precedent. Alternatively if we want to use precedent, then any time someone is deemed to not be liable due to no precedent/didnt know then that ruling should serve as notice for all other actors.

      There are so many way to reform QI without abolishing it. It’s not really a yes/no choice. Even marginal changes can yield big improvements to the outcomes.

  6. One assumes most of these malefactors will be identified as “White Hispanic” in order to support the myth of evil White supremacist racist cops.

  7. Expect more of this from democrat run cities and states.

  8. Police training reform has been discussed for years, it’s a glaring problem, but nothing ever happens.

  9. A.C.A.B.

    “…a million bureaucrats are diligently plotting death and some of them even know it…” ~ Thomas Pynchon

    These cops recorded reactions after their killing of Aguirre are very callous and damning. They should not only be denied QI, they should be forever denied sunlight unfiltered by prison bars.

  10. On a similar note, Robert Saylor was murdered by off-duty cops.
    The cops were given the benefit of freedom from the courts.

    But, in this case the victim was a disabled man with no idea of what was happening to him. His last word was “Mama!”
    While I respect the law and those that are tasked with enforcing it, injustice is hard not to see and feel. I am not a liberal or anything close to it. I try to remain objective and observe comprehensively. That being said, when the law is broken no matter the person or entity, justice MUST be served. Or, why have any laws at all?

  11. why didn’t lead to national marches, demonstrations and yes riots and destruction of private and public property? That is a really good question.

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