### 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 twic e, choked him, punched and kicked him in the face, pushed him into a face

- down position , pressed his face into t he 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 Case: 16-11244 Document: 00514108559 Page: 1 Date Filed: 08/09/2017No. 16

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2 Romero and the City o f 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 clai ms 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 w as 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 transpir ed as the warrant was executed

. When the police first arrived at the house , t he 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 t estimony about what Case: 16-11244 Document: 00514108559 Page: 2 Date Filed: 08/09/2017No. 16

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3 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. W itnesses 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 , eye witnesses 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 back ed 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 wa s 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 th at he had been trained to do so when arrestees were resisting arrest. Case: 16-11244 Document: 00514108559 Page: 3 Date Filed: 08/09/2017No. 16

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4 can’t breathe.” Eyewitness es also testified that Darden himself told the officers
he could not breathe. 3 A few seconds later, the videos briefly sh ow Darden on his knees , with his hands in the air , before Officer Snow tase d 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 finish ed securing the handcuffs , Darden’s body went limp. The officers then pull ed Darden’s debilitated body up into a sitting position and left
him there. Darden appeared to be unconscious, and his head h ung down on his chest. It was subsequently determined that Darden had suffered a heart at tack 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

arre sting 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 of ficers had not violated clearly established law and were

3 Eyew itnesses te stified that Darden pushed himself up on his hands because he was trying to get into a p osition where he could breathe.
4 Officer Snow claims that he had no further contact with Darden after dischar ging the Taser the second time. Case: 16-11244 Document: 00514108559 Page: 4 Date Filed: 08/09/2017No. 16

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5 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 th at 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 s hows 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 establ ished’ 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 circ umstances 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 e stablishing a genuine fact issue as to Case: 16-11244 Document: 00514108559 Page: 5 Date Filed: 08/09/2017No. 16

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6 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 mos t 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

unreasona ble

. . . 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.’” S ee Knight v. Caldwell , 970 F.2d 14 30, 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 con sequential hypoxia [ 6 ] and

5 When a Taser’s trigger i s 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 “H ypoxia 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)

. Case: 16-11244 Document: 00514108559 Page: 6 Date Filed: 08/09/2017No. 16

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7 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 o ther contributing factors were focal coronary artery
di sease, “which can increase the likelihood of developing an arrh ythmia 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 distri ct 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, a nd applied pressure to his back. I ndeed, 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 Excessiv e 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, 1 67 (5th Cir. 2009) Case: 16-11244 Document: 00514108559 Page: 7 Date Filed: 08/09/2017No. 16

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8 (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 t o 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 of ficer 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 we re 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

w hite 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 posit ioned in the house across the street. Still, Darden “was not suspected of committing a violent offense,” Cooper , 844 F.3d at 522, and Case: 16-11244 Document: 00514108559 Page: 8 Date Filed: 08/09/2017No. 16

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9 testimony suggests that Darden did not threaten the officers in any way when they entered the r esidence. Eyew itnesses test ified that Darden put his hands in the air, and indeed, the video shows Darden raising his hands when the officer s 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 a rrest 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 refu sal 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 Case: 16-11244 Document: 00514108559 Page: 9 Date Filed: 08/09/2017No. 16

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10 by the Supreme Court is a demanding one: a court should not discount the nonmoving party’s story unless the video evidence p rovides 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 rip ped off Darden’s shir t , 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 . N or 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 second s : witnesses fo r the plaintiff claim that Darden was compliant with the officer s’ 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 con trast to Scott , however, the videos do not favor one accou nt 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 video s show that Darden raised his hands when the officers entered the residence, and it appears that he rolled over onto his face at on e point after the officers instructed him to do so. Moreover, eye witnesses tes tified 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 Case: 16-11244 Document: 00514108559 Page: 10 Date Filed: 08/09/2017No. 16

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11 people in the house were loudly and r epeatedly 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.” S ee Rodriguez v. Farrell , 294 F.3d 1276, 1278 (11th Cir. 2002)). However, the issue of whether reasonable officer s 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 posit ion 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 pl aintiff’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 wa s 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. Case: 16-11244 Document: 00514108559 Page: 11 Date Filed: 08/09/2017No. 16

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12 d. Officer Snow ’ s use of force At this juncture, we must an alyze the officers’ actions separately. I n 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 A tteberry 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 arr est. 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. Ap p’x at 185

. In Autin , a police officer tased a suspect who se “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 th at the officer’s “use of force was both excessive to the need and objectively unreasonable.” Id. In another case, McCaleb , a police officer repea tedly shocked a suspect with a T aser while the suspect was “on the Case: 16-11244 Document: 00514108559 Page: 12 Date Filed: 08/09/2017No. 16

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13 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, e yewitnesses 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 tha t 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 un reasonable. “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 Of ficer 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 si tuation where an officer arrived Case: 16-11244 Document: 00514108559 Page: 13 Date Filed: 08/09/2017No. 16

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14 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 Ly tle 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 us es excessive force when the officer chokes, punches, or kicks a suspect who is not resisting arrest. See,
e.g. , A guilar 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 j ury 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 a rresting him. The Fort Worth Police Depart ment’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 asphyxi a ” (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 th e floor, and pulled his arms behind his back to Case: 16-11244 Document: 00514108559 Page: 14 Date Filed: 08/09/2017No. 16

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15 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 wi th 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 suc h force was clearly established at the time of Officer Romero’s alleged misconduct. “[T] he law is clear that once the plaintiff stop s 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] motorc ycle 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 indi viduals. 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 Case: 16-11244 Document: 00514108559 Page: 15 Date Filed: 08/09/2017No. 16

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16 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 D arden was purportedly complying with the officers’ orders and not resisting arrest. Officer Romero also forced Darden

— a n 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 t he 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 liabili ty claim s

. 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

. S ee 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 Case: 16-11244 Document: 00514108559 Page: 16 Date Filed: 08/09/2017No. 16

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17 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 violation s 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 fur ther 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. Case: 16-11244 Document: 00514108559 Page: 17 Date Filed: 08/09/2017N o. 16

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18 KING, Circuit Judge, specially concurring: I agree with the panel majority tha t, 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. Case: 16-11244 Document: 00514108559 Page: 18 Date Filed: 08/09/2017