DALLAS—"I hope I didn't kill him," Officer Dustin Dillard can be heard saying on body camera footage after he responded to a 911 call in August 2016 from Tony Timpa, who later died after Dillard held him in the prone position facedown for a little over 14 minutes. The comment was met with laughter from other officers on the scene.
Today, at the federal civil rights trial surrounding Timpa's death, Dillard was more assured: "I did not kill Mr. Timpa," he said.
It will be up to a jury, convened at the Earle Cabell Federal Building in Dallas, Texas, to evaluate what role Dillard and his colleagues played in Timpa's death, if they are indeed responsible, and if so, what damages should be awarded to Timpa's family. It may not be an easy decision for the panel, as the incident is more complex than either side would probably like to admit. But it's for this very reason—that the event and its surrounding circumstances do not fit neatly in a box—that the decision should be in the hands of a jury, which are rarely called in similarly situated cases of alleged government misconduct.
This trial, too, almost didn't happen. For three years, the government declined to release the body camera footage of Timpa's death, reportedly telling Vicki Timpa, Tony's mother, a series of fabrications, like that he'd had a heart attack at a bar, or that he'd been found unconscious by his car. In reality, Timpa had called 911 while experiencing a mental health episode near Dallas' Mockingbird Lane. A court ordered the police to stop concealing that video in August 2019.
Then came three more years of litigation, as the government invoked qualified immunity, the legal doctrine that prevents federal civil suits against state and local government officials from going to trial if the allegations have not been "clearly established" as unconstitutional in a prior court decision.
The doctrine, in theory, was put in place to prevent breathless lawsuits from filling the courts. That's not how it works in practice, because prior to any such suit proceeding, federal courts also have to determine whether or not the named government actor(s) violated the Constitution. Those who manifestly did not are vindicated and the suit is dismissed. Those who allegedly violated the law, but who did so in a novel way that has not yet been spelled out with exactitude in prior case law, are awarded qualified immunity, dooming meritorious claims on a technicality.
Here, the officers first got qualified immunity. That was overturned on appeal. "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 in December 2021, five and a half years after Timpa's death. The government appealed to the Supreme Court, which in May 2022 rejected the case.
Senior Assistant City Attorney Lindsay Wilson Gowin, who is representing the defendants, remarked today during Dillard's testimony that the two of them had, under unfortunate circumstances, been in contact for the last seven years. She's correct, although it didn't have to be that way.
Eager to stave off a jury trial, it was Gowin's office, along with the Dallas Police Department (DPD), that secured those protracted delays. It's true that trials are unpredictable, expensive, and inconvenient. They are also incredibly valuable fact-finding tools—particularly when the defendants are government employees who may have violated the Constitution at the direct expense of the taxpayer.
There is something uniquely valuable about having the accused publicly explain, to a panel of people who fund their salaries, certain choices that were, to put it mildly, highly questionable. Here, that includes Senior Cpl. Raymond Dominguez and Officer Danny Vasquez addressing why they mocked, instead of helped, Timpa as he was expiring in front of them, joking that he was a schoolboy who needed to get out of bed. They offer him new shoes, "tutti-frutti" waffles, and scrambled eggs, laughing as they go. "I don't want to go to school!" one says. "Five more minutes, mom!"
At trial this week, both men said they really did think Timpa was asleep; Dominguez added that he has school-aged kids and was talking to Timpa in the same vein that he'd rouse his children. (The body camera footage can be found here. Decide for yourself if that strains credulity.) Both also apologized for being crass but declined to take responsibility for Timpa's death.
Just how exactly Timpa died has been at the center of the debate at trial, with the two sides ping-ponging back and forth over whether it was cardiac arrest or positional asphyxia. An autopsy concluded he suffered "sudden cardiac death due to the toxic effects of cocaine and [the] physiologic stress associated with physical restraint." But several doctors, including Martin Tobin, who did not accept payment for his research and testimony, said the restraint Dillard applied caused Timpa to suffocate.
DPD standard operating procedures instruct its officers to move subjects out of the prone position as soon as possible. Dillard, who used a combination of his knee and hands to maintain the restraint for approximately 14 minutes and 7 seconds, said that Timpa posed a threat all that time and that he needed to keep him in that position to facilitate treatment from the paramedics on scene. The plaintiffs countered that Timpa's body didn't register a sedative administered several minutes into the restraint, meaning that, for about two to three minutes, Dillard was likely on top of a dead man. When cross-examined by Gowin, he emphasized that he did not have medical training or the tools to diagnose mental health problems, hamstringing his ability to know what was really happening.
Toward the end of his testimony, Dillard spoke to the Timpa family directly for the first time. "I hated that he died," he said. "I pray for Tony and you every single day." An attorney for the plaintiffs responded that "good people can break the law and violate the Constitution." It will be up to the jury to decide if Dillard fits into that category, and if the government should compensate the Timpas as a result. It's a difficult position to be in, for sure—but I'm glad they're in it.