IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11244

ERIC C. DARDEN, as Administrator of the Estate of Jermaine Darden and 

on behalf of the statutory beneficiaries of the Estate of Jermaine Darden 

(which are Donneika Goodacre-Darden, surviving mother of Jermaine 

Darden, Charles H. Darden, surviving father of Jermaine Darden), 

 Plaintiff–Appellant,

v.

CITY OF FORT WORTH, TEXAS; W. F. SNOW; J. ROMERO, 

 Defendants–Appellees.

Appeal from the United States District Court

for the Northern District of Texas

Before KING, PRADO, and SOUTHWICK, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Fort Worth Police Officers W.F. Snow and Javier Romero arrested

Jermaine Darden, a black man who was obese, while executing a no-knock 

warrant at a private residence. In arresting Darden, the officers allegedly 

threw him to the ground, tased him twice, choked him, punched and kicked 

him in the face, pushed him into a face-down position, pressed his face into the 

ground, and pulled his hands behind his back to handcuff him. Darden suffered 

a heart attack and died during the arrest. The administrator of Darden’s estate 

subsequently brought this 42 U.S.C. § 1983 case against Officers Snow and 

United States Court of Appeals

Fifth Circuit

FILED

August 9, 2017

Lyle W. Cayce

Clerk

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Romero and the City of Fort Worth (the “City”). The district court granted 

summary judgment in favor of the officers and the City and dismissed all 

claims. We REVERSE in part, VACATE in part, and REMAND.

I. BACKGROUND

In 2013, the Fort Worth Police Department investigated claims that 

cocaine was being sold from a private residence. A magistrate judge issued a 

warrant that allowed the officers to enter the residence without first knocking

and announcing themselves. On May 16, 2013, a large team of heavily armed 

police officers executed the warrant. Officer Snow was assigned to the entry 

team, which was tasked with breaking down the front door, entering the 

residence, and securing the premises. Officer Romero drove the van that 

transported the team to the residence. He was also assigned to stand guard 

near the front door while other officers entered the residence and arrested the 

people inside. Two other members of the team wore cameras on their helmets, 

which captured on video some but not all of the events that transpired as the 

warrant was executed. 

When the police first arrived at the house, the entry team broke down 

the front door with a battering ram, yelled that they were police, and ordered 

everyone to get down. A large man, later identified as Darden, was kneeling on 

the seat of a couch near the door when the officers first entered, and he 

immediately raised his hands in the air. Darden weighed approximately 340 

pounds. Several other people were sitting and standing in a nearby dining 

room. As Officer Snow entered the residence, he reached out and ripped the 

shirt off Darden’s back, apparently in an attempt to get Darden from the couch

to the ground. The videos do not show what happened during the twenty-five 

seconds that followed, and there is conflicting testimony about what 

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transpired.1 According to witnesses for the plaintiff, Darden “had no time to 

react” before “[h]e was thrown on the ground” by the officers. Witnesses also 

testified that Darden never made any threatening gestures and did not resist 

arrest.

After approximately twenty-five seconds, it became apparent that some 

sort of incident was occurring in the front room. One of the videos shows

Darden lying on the ground face up. An officer in the front room yelled, “Roll 

over on your face,” at which point, Darden appeared to follow directions and 

rolled over onto his stomach. The video then pans away from the scene and 

does not turn back for approximately fifteen seconds. The second video shows

that Officer Romero then ran into the house to assist. However, in that video, 

much of the interaction between Darden and the officers is totally obscured by 

the couch. Although not captured by the video, eyewitnesses testified that 

Officer Romero proceeded to choke Darden and to repeatedly punch and kick 

Darden in the face.2

At one point, Darden’s body appeared to come up off the ground for a 

moment, but it is not clear from the video footage whether he came up of his 

own volition or was pulled up by police. The officers then backed away, and

Officer Snow used a Taser on Darden. Shortly thereafter, Darden rolled over 

onto his stomach and appeared to push himself up on his hands. He was 

immediately pushed back down into the ground by police. Throughout these 

events, other people in the house repeatedly yelled, “He’s got asthma,” and “He 

 

1 In one video, the officer wearing the camera went into one of the bedrooms at the 

rear of the residence. In the second video, the officer wearing the second camera went into 

the dining room and ordered people to get on the ground.

2 In fact, Officer Romero himself testified that he punched Darden in the face and 

explained that he had been trained to do so when arrestees were resisting arrest.

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can’t breathe.” Eyewitnesses also testified that Darden himself told the officers 

he could not breathe.3

A few seconds later, the videos briefly show Darden on his knees, with 

his hands in the air, before Officer Snow tased him a second time.4 Darden fell 

to the ground and rolled onto his back, where he lay face up for a few seconds.

Officer Romero then pushed Darden over onto his stomach and pressed his face 

into the ground. As Officer Romero tried to pull Darden’s left arm behind his 

back, Darden seemed to pull his arm away. The officers then pushed Darden

back into the ground, and one officer appeared to put him in a choke hold.

At that point, other people in the residence were still yelling that Darden 

could not breathe. Nevertheless, several officers continued to push Darden’s 

body into the ground face down, pressed his face and neck into the floor, and 

pulled his arms behind his back so that Officer Romero could handcuff him. As 

Officer Romero finished securing the handcuffs, Darden’s body went limp. The 

officers then pulled Darden’s debilitated body up into a sitting position and left

him there. Darden appeared to be unconscious, and his head hung down on his 

chest. It was subsequently determined that Darden had suffered a heart attack 

and died.

The administrator of Darden’s estate brought suit under 42 U.S.C. 

§ 1983, claiming that Officers Snow and Romero used excessive force in 

arresting Darden and that the City was liable for failing to adequately train 

the officers. All of the defendants filed motions for summary judgment, and the 

district court granted their motions and dismissed the case. The district court 

determined that the officers had not violated clearly established law and were 

 

3 Eyewitnesses testified that Darden pushed himself up on his hands because he was 

trying to get into a position where he could breathe.

4 Officer Snow claims that he had no further contact with Darden after discharging 

the Taser the second time.

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thus entitled to qualified immunity. In addition, the district court stated that 

the plaintiff had failed to show that Darden’s death resulted only from the

officers’ use of force. Because it held that the officers had not violated Darden’s 

constitutional rights, the district court likewise dismissed the municipal 

liability claims. This appeal followed.

II. DISCUSSION

“We review a summary judgment de novo, ‘using the same standard as 

that employed by the district court under Rule 56.’” Newman v. Guedry, 703 

F.3d 757, 761 (5th Cir. 2012) (quoting Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 

435 (5th Cir. 2000)). Summary judgment is appropriate “if the movant shows 

that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A. Officers Snow and Romero

The Supreme Court has “mandated a two-step sequence for resolving 

government officials’ qualified immunity claims.” Pearson v. Callahan, 555 

U.S. 223, 232 (2009). We must determine (1) “whether the facts that a plaintiff 

has alleged . . . make out a violation of a constitutional right” and (2) “whether 

the right at issue was ‘clearly established’ at the time of defendant’s alleged 

misconduct.” Id. “A right may be clearly established without ‘a case directly on 

point,’ but ‘existing precedent must have placed the statutory or constitutional 

question beyond debate.’” Hanks v. Rogers, 853 F.3d 738, 746–47 (5th Cir. 

2017) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)). Courts are 

“permitted to exercise their sound discretion in deciding which of the two 

prongs of the qualified immunity analysis should be addressed first in light of 

the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. 

However, deciding the two prongs in order “is often beneficial.” Id.

Once an official pleads qualified immunity, “the burden then shifts to the 

plaintiff, who must rebut the defense by establishing a genuine fact issue as to 

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whether the official’s allegedly wrongful conduct violated clearly established 

law.” Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010). Still, at the 

summary judgment stage, we must “view the facts in the light most favorable 

to . . . the nonmoving party.” City & County of San Francisco v. Sheehan, 135 

S. Ct. 1765, 1769 (2015). “The evidence of the non-movant is to be believed, and 

all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 255 (1986). 

“To prevail on an excessive-force claim, [a plaintiff] must show ‘(1) injury, 

(2) which resulted directly and only from a use of force that was clearly 

excessive, and (3) the excessiveness of which was clearly unreasonable.’” 

Cooper v. Brown, 844 F.3d 517, 522 (5th Cir. 2016) (quoting Elizondo v. Green, 

671 F.3d 506, 510 (5th Cir. 2012)). “Our precedents recognize that inquiries 

regarding whether a use of force was ‘clearly excessive’ or ‘clearly 

unreasonable . . . are often intertwined,’ and we consider those questions 

together below.” Hanks, 853 F.3d at 744 (omission in original) (quoting Poole 

v. City of Shreveport, 691 F.3d 624, 628 (5th Cir. 2012)).

1. Injury and Causation

The district court held that the “plaintiff could not establish an excessive 

force claim because he cannot show that Darden’s death ‘resulted directly and 

only from the use of force that was clearly excessive to the need.’” See Knight 

v. Caldwell, 970 F.2d 1430, 1432 n.3 (5th Cir. 1992). According to the plaintiff’s 

medical expert, “Darden died as a result of the application of restraint 

(physical struggle, 4 taser dart strikes,[5] prone position with the weight of 

police officers on top of Mr. Darden) and consequential hypoxia[6] and 

 

5 When a Taser’s trigger is pulled, a set of two dart-like probes is discharged. Thus, 

although Darden was tased only twice, four probes made contact with his body.

6 “Hypoxia means a shortage of oxygen in the blood,” and it can “be induced by 

compressing the lungs, which the weight of several persons on one’s back can do.” Richman 

v. Sheahan, 512 F.3d 876, 880 (7th Cir. 2008).

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increased cardiac demand.” But the medical expert went on to explain that 

“[t]he application of restraint [was] a contributing causal factor along with 

natural disease.” The other contributing factors were focal coronary artery 

disease, “which can increase the likelihood of developing an arrhythmia during 

a struggle,” and chronic lung disease, which “can impede air exchange causing 

hypoxia (low oxygen) and increase the risk of cardiac arrhythmia during 

exertion such as a struggle.” Thus, the district court’s conclusion that the 

injury did not result directly and only from the use of force was essentially 

based on the fact that Darden had preexisting medical conditions that 

increased his risk of death during the incident. 

The district court erred in reaching this conclusion. According to the 

“eggshell skull” rule, “[t]he tortfeasor takes his victim as he finds him.” 

Richman, 512 F.3d at 884; accord Koch v. United States, 857 F.3d 267, 274 (5th 

Cir. 2017). As our fellow circuits have noted, the eggshell skull rule “like most 

principles of the common law of torts is applicable to a constitutional tort case 

brought under 42 U.S.C. § 1983.” Richman, 512 F.3d at 884 (cataloging cases). 

Darden’s preexisting medical conditions increased his risk of death during a 

struggle, and in that way, they contributed to his death. However, the evidence 

suggests that Darden would not have suffered a heart attack and died if the 

officers had not tased him, forced him onto his stomach, and applied pressure

to his back. Indeed, the medical expert ultimately concluded that “Darden’s 

manner of death should not have been ruled as Natural.” Accordingly, the 

plaintiff can show that the use of force was the direct and only cause of 

Darden’s death.

2. Clearly Excessive and Clearly Unreasonable Use of Force

“Excessive force claims are necessarily fact-intensive; whether the force 

used is ‘excessive’ or ‘unreasonable’ depends on ‘the facts and circumstances of 

each particular case.’” Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009) 

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(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). In making this 

determination, a court should consider the totality of the circumstances, 

“including the severity of the crime at issue, whether the suspect poses an 

immediate threat to the safety of the officers or others, and whether he is 

actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 

U.S. at 396. “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.” Id. “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.” Id. at 

396–97.

a. Severity of the crime

The magistrate judge who issued the warrant determined that there was 

probable cause to believe that suspects at the residence were dealing drugs. 

These types of drug crimes are certainly serious offenses. See Orr v. Copeland, 

844 F.3d 484, 493 (5th Cir. 2016) (noting that an officer “had reason to suspect 

that [a driver] was involved in serious drug crimes” when the driver “had a 

white residue on his face at the time of the traffic stop” and the officer 

“observed drug paraphernalia—plastic baggies—hidden in the backseat of [the 

driver’s] car”). Thus, the severity of the crime at issue weighs in favor of the 

officers.

b. Immediate safety threat

There is a genuine factual dispute over whether Darden posed an 

immediate safety threat to the officers. There were certainly inherent dangers 

associated with executing a narcotics warrant, and the officers were aware that 

lookouts were positioned in the house across the street. Still, Darden “was not 

suspected of committing a violent offense,” Cooper, 844 F.3d at 522, and 

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testimony suggests that Darden did not threaten the officers in any way when 

they entered the residence. Eyewitnesses testified that Darden put his hands 

in the air, and indeed, the video shows Darden raising his hands when the 

officers enter the home. Witnesses also testified that Darden made no 

threatening gestures and did not resist arrest. Therefore, a jury could conclude

that no reasonable officer would have perceived Darden as posing an 

immediate threat to the officers’ safety. See Hanks, 853 F.3d at 743, 746; 

Ramirez v. Martinez, 716 F.3d 369, 378 (5th Cir. 2013); Deville, 567 F.3d at 

167.

c. Resisting arrest

The district court’s analysis largely turned on an assessment that

Darden was actively resisting arrest when Officers Snow and Romero used 

force on him. “Officers may consider a suspect’s refusal to comply with 

instructions . . . in assessing whether physical force is needed to effectuate the 

suspect’s compliance.” Deville, 567 F.3d at 167. “However, officers must assess 

not only the need for force, but also ‘the relationship between the need and the 

amount of force used.’” Id. (quoting Gomez v. Chandler, 163 F.3d 921, 923 (5th 

Cir. 1999)). According to the district court, “[t]he video makes clear that 

Darden did not get on the ground as ordered by the officers and that the taser 

was employed to assist them in getting Darden to the ground.”

“When opposing parties tell two different stories, one of which is 

blatantly contradicted by the record, so that no reasonable jury could believe 

it, a court should not adopt that version of the facts for purposes of ruling on a 

motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Thus, 

in Scott, the Supreme Court held that because the nonmovant’s version of 

events was “so utterly discredited” by a videotape “that no reasonable jury 

could have believed him,” the court of appeals “should have viewed the facts in 

the light depicted by the videotape.” Id. at 380–81. Yet the standard imposed 

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by the Supreme Court is a demanding one: a court should not discount the

nonmoving party’s story unless the video evidence provides so much clarity

that a reasonable jury could not believe his account. See Ramirez, 716 F.3d at 

374.

In the instant case, the videos do not meet that difficult standard because 

they do not show whether Darden got onto the ground when he was 

commanded to do so. After the officers entered the house and ripped off

Darden’s shirt, the next shot of Darden shows him lying on the ground 

approximately twenty-five seconds later. Neither video shows what transpired 

between those two events. Nor do the videos make clear how Darden 

transitioned from kneeling on the couch to lying on the floor. The parties offer 

conflicting accounts of Darden’s actions during those twenty-five seconds: 

witnesses for the plaintiff claim that Darden was compliant with the officers’

commands and was thrown to the ground by police, whereas Officer Snow 

claims that Darden was attempting to stand up and was resisting the officers’

attempts to get him on the ground. In contrast to Scott, however, the videos do 

not favor one account over the other and do not provide the clarity necessary 

to resolve the factual dispute presented by the parties’ conflicting accounts.

Based on the evidence in the record, a jury could conclude that no 

reasonable officer on the scene would have thought that Darden was resisting 

arrest. The videos show that Darden raised his hands when the officers entered 

the residence, and it appears that he rolled over onto his face at one point after

the officers instructed him to do so. Moreover, eyewitnesses testified that 

Darden was thrown to the ground before he could react, that he complied with 

the officers’ commands, and that he did not resist arrest. From the video 

recordings, it appears that Darden later pushed himself up on his hands, and 

eventually onto his knees, and he seemed to pull his arm away from the officers 

when they were trying to handcuff him. But those events occurred while other 

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people in the house were loudly and repeatedly yelling that Darden had 

asthma and was trying to breathe. In addition, Darden allegedly told the 

officers he could not breathe. 

Snow argues that the officers “had no way of knowing in that tense, 

uncertain, and rapidly evolving situation” if it was “true or false” that Darden 

was struggling to breathe. He contends that “a police officer need not credit 

everything a suspect tells him.” See Rodriguez v. Farrell, 294 F.3d 1276, 1278 

(11th Cir. 2002)). However, the issue of whether reasonable officers in this 

situation would have credited the warnings from Darden and the other 

suspects is a factual question that must be decided by a jury. As the Supreme 

Court has made clear, “at the summary judgment stage the judge’s function is 

not himself to weigh the evidence and determine the truth of the matter.” 

Liberty Lobby, 477 U.S. at 249. Rather, “[t]he evidence of the non-movant is to 

be believed, and all justifiable inferences are to be drawn in his favor.” Id. at

255. A jury could conclude that all reasonable officers on the scene would have 

believed that Darden was merely trying to get into a position where he could 

breathe and was not resisting arrest.7

 

7 Officer Snow also contends that the “testimony of Plaintiff’s own witnesses fully 

undermines his claim.” First, he argues that one of the eyewitnesses, Donna Randle, 

“acknowledge[d] that it would have appeared to officers that Jermaine Darden was resisting 

them.” Randle was asked by defense counsel, “On the date of the incident in question, is it 

your position that the police thought Jermaine was fighting them, but really he was trying 

to get into a better position, so he could breathe easier?” Randle responded, “Yes.” This was 

both a leading and compound question, so it is difficult to determine what Randle meant. 

Even if Officer Snow has accurately characterized Randle’s testimony, however, Officer Snow 

has cited no authority to support his contention that a witness’s speculation about what 

officers would have perceived can be used to fully discredit the plaintiff’s version of events at 

the summary judgment stage.

Officer Snow also asserts that “Clifton Crippen testified that Darden was struggling 

against the officers trying to get on his side.” But throughout his testimony, Crippen made 

clear that Darden was simply trying to breathe and that others in the residence had 

repeatedly informed the officers that Darden was trying to breathe. Accordingly, the 

testimony of the plaintiff’s witnesses does not necessarily undermine the plaintiff’s version 

of events.

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d. Officer Snow’s use of force

At this juncture, we must analyze the officers’ actions separately. In 

cases where the defendants have not acted in unison, “qualified immunity 

claims should be addressed separately for each individual defendant.” Kitchen 

v. Dallas County, 759 F.3d 468, 480 (5th Cir. 2014) (quoting Atteberry v. 

Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005)), abrogated on other 

grounds by Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015); Meadours v. 

Ermel, 483 F.3d 417, 421 (5th Cir. 2007).

First, we consider whether a jury could conclude that Officer Snow used 

excessive force when he allegedly threw Darden to the ground and tased him. 

We have repeatedly suggested that a constitutional violation occurs when an 

officer tases an arrestee who is not actively resisting arrest. See Clark v. 

Massengill, 641 F. App’x 418, 420 (5th Cir. 2016); Ramirez, 716 F.3d at 378–

79; Anderson v. McCaleb, 480 F. App’x 768, 773 (5th Cir. 2012) (per curiam); 

Autin v. City of Baytown, 174 F. App’x 183, 185 (5th Cir. 2005) (per curiam).

Thus, if a jury finds that Darden was not actively resisting arrest, then a jury 

could likewise conclude that Officer Snow used excessive force by throwing 

Darden to the ground and tasing him twice. The facts the plaintiff has alleged 

make out a violation of a constitutional right.

Furthermore, the right at issue was clearly established at the time of 

Officer Snow’s alleged misconduct. As early as 2005, we held that tasing a 

suspect who is “not resisting arrest” constitutes excessive force. Autin, 174 F. 

App’x at 185. In Autin, a police officer tased a suspect whose “back was to him, 

he gave her no notice of his intention to do so, and he continued to tase her 

repeatedly, even after she was subdued on the ground.” Id. Based on these 

alleged facts, we held that the officer’s “use of force was both excessive to the 

need and objectively unreasonable.” Id. In another case, McCaleb, a police 

officer repeatedly shocked a suspect with a Taser while the suspect was “on the 

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ground, no longer resisting arrest, and being beaten” by another officer. 480 F. 

App’x at 772. We concluded that the officer “should have known that he could 

not continue to shock [the suspect] with the taser after he was no longer 

resisting arrest.” Id. at 773. Similarly, in the present case, eyewitnesses claim 

that Darden put his hands in the air when the officers entered the residence, 

complied with the officers’ commands, and did not resist arrest. Yet Officer 

Snow allegedly threw Darden to the ground and twice shocked him with a 

Taser while he was being beaten by Officer Romero. In light of our prior case 

law, Officer Snow should have known that he could not use that amount of 

force on an individual who was not resisting arrest.

It is worth pointing out that a jury may ultimately conclude that Darden 

did not comply with the officers’ commands and was actively resisting arrest. 

Under those facts, Officer Snow’s decisions to force Darden to the ground and 

tase him might have been reasonable. See Carroll v. Ellington, 800 F.3d 154, 

174–75 (5th Cir. 2015) (declining “to reach the close constitutional question” of 

whether “an officer’s application of a Taser to an unarmed, seated suspect who 

fail[ed] to comply with an order to get on the ground” was excessive force). 

However, on the record before us, there are genuine disputes of material fact 

as to whether Darden was actively resisting arrest and whether the force 

Officer Snow used was clearly excessive and clearly unreasonable. “Summary 

judgment is inappropriate to resolve such disputes.” McCaleb, 480 F. App’x at

773. Thus, we hold that Officer Snow was not entitled to qualified immunity, 

and the district court erred in granting his motion for summary judgment.

e. Officer Romero’s use of force

Next, we must determine whether a jury could find that Officer Romero 

used excessive force when he allegedly choked, kicked, and punched Darden 

and forced Darden into a prone position to handcuff him behind his back. As 

an initial matter, we note that this was not a situation where an officer arrived 

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at the scene with little or no information and had to make a split-second 

decision. Rather, Officer Romero acknowledges that he stood at his post near 

the front door for a while and observed the interaction between Darden and 

Officer Snow before running into the house to assist. In other words, Officer

Romero saw whether Darden was resisting and saw how much force had 

already been used on Darden. He needed to take those perceptions into account 

in assessing how much additional force, if any, was necessary. See Lytle v. 

Bexar County, 560 F.3d 404, 413 (5th Cir. 2009) (“[A]n exercise of force that is 

reasonable at one moment can become unreasonable in the next if the 

justification for the use of force has ceased.”).

We have consistently held that a police officer uses excessive force when 

the officer chokes, punches, or kicks a suspect who is not resisting arrest. See, 

e.g., Aguilar v. Robertson, 512 F. App’x 444, 450 (5th Cir. 2013) (per curiam); 

McCaleb, 480 F. App’x at 773; Sullivan v. Allred, 297 F. App’x 339, 342 (5th 

Cir. 2008) (per curiam); Estate of Sorrells v. City of Dallas, 45 F. App’x 325 (5th 

Cir. 2002) (per curiam). Accordingly, if a jury finds that no reasonable officer 

on the scene would have perceived Darden to be actively resisting arrest, then 

a jury could also conclude that Officer Romero used excessive force by choking 

Darden and repeatedly punching and kicking him in the face.

Moreover, it was apparent that Darden was obese, which should have 

prompted Officer Romero to exercise greater care in arresting him. The Fort 

Worth Police Department’s general orders require officers to exercise

“[e]xtreme caution” when arresting “a prisoner that is obese . . . since cuffing 

behind the back and laying the prisoner in a prone position could lead to 

positional asphyxia” (otherwise known as hypoxia). Fort Worth, Tex., Police 

Department General Orders § 314.04(D); see also Richman, 512 F.3d at 880.

Despite this policy, however, Officer Romero pushed Darden into a prone 

position, pressed his face into the floor, and pulled his arms behind his back to 

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handcuff him. As the plaintiff’s medical expert explained, “Darden died as a 

result of the application of restraint . . . and consequential hypoxia.” Officer 

Romero’s actions were unambiguously in conflict with the police department’s 

policy, which cautioned against employing the exact tactics that Officer 

Romero used to arrest Darden. Therefore, a jury could find that the force was

clearly excessive and clearly unreasonable.

Darden’s right to be free from such force was clearly established at the 

time of Officer Romero’s alleged misconduct. “[T]he law is clear that once the 

plaintiff stops resisting or is in [the officer’s] control, the permissible degree of 

force lessens.” Aguilar, 512 F. App’x at 450; see also McCaleb, 480 F. App’x at 

773 (holding that a police officer “should have known that he could not beat 

[the suspect] after he stopped resisting arrest”). For example, in Aguilar, the 

plaintiff claimed that a police officer “tackled him off [his] motorcycle onto the 

ground, used his firearm to hit and poke [the plaintiff] in the head and visor, 

and kicked him in the leg.” 512 F. App’x at 450. Because the officer allegedly 

took those actions while the plaintiff “was stopped, not ignoring commands, 

and was not resisting arrest,” we held that the plaintiff had adequately alleged 

a violation of a constitutional right. Id.

In addition, a decision by one of our sister circuits suggests that police 

officers must exercise greater caution when arresting obese individuals. In 

Richman, the Seventh Circuit held that deputy sheriffs were not entitled to 

qualified immunity after they forced a morbidly obese man who was actively 

resisting arrest into a face-down position on the floor and then placed their 

weight on his back in order to handcuff him, even as he screamed that he could

not breathe. 512 F.3d at 880. The man died in the struggle. Id. “The autopsy 

report stated that he had died as a result of coronary artery disease to which

‘restraint hypoxia,’ or, as more commonly termed, ‘positional asphyxia,’ due to 

his morbid obesity had contributed.” Id. The court explained that “the obese 

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are especially susceptible to hypoxia, and shortage of oxygen can and 

apparently in this case did precipitate a fatal heart attack.” Id. Thus, “police 

are warned not to sit on the back of a person they are trying to restrain, 

especially if he is obese.” Id. Because “a reasonably trained police officer would 

know that compressing the lungs of a morbidly obese person can kill the 

person,” the court concluded that a “reasonable jury could find that the 

deputies used excessive force.” Id. at 883.

In the case at bar, eyewitnesses testified that Officer Romero choked, 

punched, and kicked Darden, even though Darden was purportedly complying 

with the officers’ orders and not resisting arrest. Officer Romero also forced 

Darden—an obese man—onto his stomach, pushed his face into the floor, and 

pulled Darden’s hands behind his back. All the while, other people in the 

residence were repeatedly yelling that Darden could not breathe. If the 

plaintiff’s version of events is true, Officer Romero’s actions were plainly in 

conflict with our case law, the police department’s own policies, and the 

Seventh Circuit’s persuasive guidance in Richman. Thus, we hold that a 

reasonable jury could conclude that Officer Romero used excessive force.

Officer Romero was not entitled to qualified immunity, and the district court 

erred in granting his motion for summary judgment.

B. The City of Fort Worth

In the proceedings below, the plaintiff also brought claims against the 

City, including a claim that the City had failed to properly train its officers. 

The district court did not reach the merits of the plaintiff’s municipal liability

claims. Because it held that the officers did not violate Darden’s constitutional 

rights, the district court likewise held that the City could not be liable and 

granted the City’s motion for summary judgment. See City of Los Angeles v. 

Heller, 475 U.S. 796, 799 (1986) (“If a person has suffered no constitutional 

injury at the hands of the individual police officer, the fact that the 

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departmental regulations might have authorized the use of constitutionally 

excessive force is quite beside the point.”). As discussed above, we hold that the 

plaintiff has adequately alleged facts that make out violations of a clearly 

established constitutional right. Therefore, we vacate the district court’s 

dismissal of the claims against the City and remand the case for further 

consideration of municipal liability. We express no opinion on the merits of 

that claim.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s dismissal of 

the claims against Snow and Romero, VACATE the dismissal of the claims 

against the City, and REMAND the case for further proceedings consistent 

with this opinion.

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KING, Circuit Judge, specially concurring:

I agree with the panel majority that, on this record, the decision to grant 

qualified immunity to Officers Snow and Romero (and judgment for the City)

was, at the very least, premature. Accordingly, I concur in the judgment. 

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