Last month, the seven-year anniversary of Tony Timpa's death came and went. Today, jury selection in the civil trial surrounding that death—which occurred after Dallas police violated their training when they pinned him to the ground for about 14 minutes—finally began, providing an apt example of the legal odyssey alleged victims of government misconduct must navigate, should they want recourse.
Those seven years were filled with roadblocks, put in place by the government, which almost deprived Timpa's family not only of stating their case before a jury but of learning the very basics about what happened on the evening of August 10, 2016, when Timpa phoned 911.
That night, Timpa told a dispatcher that he was having a mental health crisis. He mentioned he had schizophrenia, bipolar disorder, depression, and anxiety and that he had not taken his medication. Two private security guards handcuffed Timpa and waited for the cops.
They arrived shortly thereafter. For approximately 14 minutes and seven seconds, then-Officer Dustin Dillard, who was promoted last year to senior corporal, dug his left knee into Timpa's back, pressed his left hand between Timpa's shoulders, and periodically applied his right hand to Timpa's right shoulder. Timpa repeatedly cried out for help, yelling that he was "going to die."
He eventually went quiet. Because of the risk associated with the prone restraint, the Dallas Police Department (DPD) orders its officers to place subjects in an upright position or on their side as soon as any resistance abates. Instead, Timpa's silence induced Dillard to joke that he heard Timpa "snoring," after which Cpl. Raymond Dominguez and Officer Danny Vasquez suggested that "scrambled eggs" and "tutti-frutti" waffles could rouse Timpa from his slumber.
"You're going to kill me," Timpa had said. An autopsy found he suffered "sudden cardiac death due to the toxic effects of cocaine and [the] physiologic stress associated with physical restraint." He was 32.
Yet Timpa's mother, Vicki, would go years without knowing what happened to her son. It was not for lack of trying.
After the DPD notified her that her son was dead, the cops supplied several different stories. The police told her, Vicki said, that he'd had a heart attack at a bar, or that he collapsed by his vehicle, or that he fell unresponsive in an ambulance. None of those conflicting accounts could be reconciled, nor could any of them adequately explain why Timpa would have grass in his nose and bruises on his arms, which were apparent on her son's body when she went to the morgue.
Vicki then filed suit against the police. But the department refused to give her the body camera footage, threatening her ability to effectively outline what happened and meet the minimum standard required to file such a suit. The government then moved to have her complaint dismissed for not being specific enough, despite that it was the government that was withholding the specifics.
"The idea about this plausible pleading standard is to give defendants notice of what is being alleged against them," Joanna Schwartz, a law professor at UCLA and author of Shielded: How the Police Became Untouchable, told me earlier this year. "Well, the Dallas Police Department had all the notice in the world about what their officers had done, and yet used this tool to try to get the case dismissed."
It took three years before Vicki Timpa would be able to see how her son died. In August 2019, a court ordered the DPD to release the footage, clearing the way for Vicki to state in her suit what the officers knew all along.
In a practical sense, that was just the beginning. In July 2020, the U.S. District Court for the Northern District of Texas gave the police qualified immunity, the legal doctrine that dooms suits against state and local government actors if the misconduct alleged was not "clearly established" in a prior court ruling. Timpa's family invoked Gutierrez v. City of San Antonio, a 1998 case in the same federal circuit in which police officers were denied qualified immunity after a man died while they similarly restrained him facedown. The man in that case was hog-tied—whereas Timpa was handcuffed with his feet zip-tied—which Judge David Godbey said was enough of a departure to render it ineffective at putting the Dallas officers on notice.
That thin distinction exemplifies how difficult it can be to overcome qualified immunity, with many courts demanding that victims find a pre-existing precedent that essentially mirrors their allegations. Such a ruling often doesn't exist. But in a surprise decision, the U.S. Court of Appeals for the 5th Circuit overturned Godbey's ruling in December 2021, denying the officers qualified immunity and paving the way for Vicki to move forward.
"Within the Fifth Circuit, the law has long been clearly established that an officer's continued use of force on a restrained and subdued subject is objectively unreasonable," wrote Judge Edith Brown Clement. She also invoked the DPD's specific guidance on the prone restraint, which the officers appeared to ignore. Police can still receive qualified immunity even if they violate their own training, however, which puzzlingly assumes that officers are more likely to read decades of case law than they are their own department policy.
The police then appealed—again—asking the Supreme Court to intervene. The tactic is a common one used by government defendants, who have bottomless coffers of taxpayer dollars from which to pull. William Virgil, for example, filed suit in 2016 amid allegations that police framed him for murder; his conviction was overturned after he spent 28 years behind bars. Though the U.S. Court of Appeals for the 6th Circuit declined to give the officers involved qualified immunity, the government continued to pursue vacuous appeals. Earlier this year, the city of Newport, Kentucky, finalized a $28 million settlement, although Virgil will not be able to enjoy any of it, as he died in January 2022, after waiting years for the privilege to state his case before a jury.
In May 2022, almost six years after Timpa's death, the high court rejected the government's request to intervene. A trial was set for July 2023. That was ultimately postponed after the presiding judge, Godbey—who penned the initial decision giving the officers qualified immunity—reportedly expressed his discontent with media coverage of the case.
So it wasn't until today, more than 85 months after Timpa's death, that Vicki, Timpa's mother, finally saw the jury that will decide if her family deserves recourse for the actions police took that night. It's a part of the race that many victims of government misconduct never see—and the trial has barely begun.