* Pursuant to 5 T H C IR

. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50163

FRANCISCA CASTILLO; OLIVIA LOPEZ;

JOHN CASTILLO; MARY CARLEEN; FRANCIS

DELGADO; LUIZ CASTILLO; GILBERT CASTILLO;

RAYMOND CASTILLO; RUSSELL CASTILLO; JOE

CASTILLO; PETE CASTILLO; PAT SALAZAR;

VICKI SHAW,

Plaintiffs- Counter DefendantsAppellees,

versus

CITY OF ROUND ROCK, TEXAS; MICHAEL H.

KINCAIDE, Officer, (4101); THOMAS C.

JACOBS, Corporal; SAMMY LEDESMA, Officer

(4112),

Defendants- Counter ClaimantsAppellants.

- - - - - - - - - - Appeal from the United States District Court

for the Western District of Texas

(A-96-CV-863)

- - - - - - - - - -

March 15, 1999

Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges

Per Curiam: *

This civil rights case brought by the survivo rs of Jesus

Castillo (collect ively, the Castillos) against the City of Round

Rock, Texas and three of its police officers (collectively, the

Defendants), alleging that three of the City’s law enforcement2

officers used excessive force in seizing Castillo and were

deliberately indifferent to his ensuing medical needs, implicates

42 U.S.C. § 1983, the Texas Wrongful Death Act, the Texas Survivor

Statute, the Texas Tort Claims Act, a nd Common Law tort law. In

response to motions for summary judgment filed by the Defendants on

grounds of qualified immunity, the district court denied dismissal,

concluding that g enuine issues of material fact precluded such a

disposition of the case. Even when we view the summary judgment

evidence in the light most favorable to the Castillos, we are

convince d that the actions of the City’s police officers were

objectively reasonable under the circumstances and were taken in

good faith, within the scope of their authority, thereby entitling

the Defendants to summary judgments of dismissal as to all claims

asserted against them.

I.

Facts Most Favorable to the Castillos

Late one cold Janua ry afternoon, the Round Rock Police

Department began receiving 911 reports that a pedestr ian was

yelling and interfering with traffic at the intersection of Highway

620 and Interstate Highway 35. Dispatchers relayed the information

to Officers Kincaide and Ledesma, who responded in their separate

patrol cars. As they were proceeding to the scene, the officers

were further advised by a police dispatcher that a man fitting the

same description was reported to be stealing popcorn and beer from

a Texaco station at that location. The subject of the reports

turned out to be Castillo, a relatively short and heavy, 39-year-1 The Castillos allege that Castillo and Officer Kincaide had

been schoolmates but the record does not reflect that the officer

recognized Castillo or was aware of his mental condition.

3 old Hispanic male with a history of mental illness. 1

Officer Kincaide was the first to arrive, spotting Castillo in

the drive-through lanes of an adjacent bank, lightly clad despite

the near-freezing temperature. Officer Kincaide ordered Castillo

to stop where he was, and Castillo complied, placing a pack of beer

on the ground, taking a drink from the bottle of beer he held in

his hand, and the n raising both hands while he continued to hold

the beer bottle in one hand. Kincaide approached Castillo and

“attacked him,” knocking the beer bottle out of his hand. Officer

Kincaide and Castillo fought, struggling vigorously on the ground,

as Kincaide attempted to subdue Castillo and citizen bysta nders

tried to aid in that effort. Castillo bloodied Officer Kincaide’s

nose in the fracas, and it bled profusely.

Officer Ledesma arrived and assisted Officer Kincaide,

together with citizen bystanders, in restraining Castillo in the

prone position on the gro und, eventually handcuffing his hands

behind his ba ck. Corporal Jacobs arrived after Castillo was

handcuffed but while he was still kicking and yelling. Officer

Kincaide and a male bystander climbed atop Castillo as the three

officers put flex cuffs on Castillo’s legs. All told, Officer

Kincaide and the Good Samaritan remained on Castil lo’s back for

four to six minutes. During the struggle, Officer Kincaide shoved

his knee in the b ack of Castillo’s neck and kept it in there for

some five to ten minutes. At one point, Castillo exclaimed in2 Castillo suffered from health problems that included

obesity and an enlarged heart, which might have contributed to his

death.

4 Spanish that he was going to die. Noticing that Officer Kincaide

was bleeding, Corporal Jacobs radioed th e dispatcher to send an

ambulance to the scene.

When, after being handcuffed and leg-shackled, Castillo

finally stopped struggling, the officers rolled him over onto his

back. When they did, the officers noticed that Castillo’s face had

turned blue and that he appeared to be unconscious. The ambulance

arrived shortly and took Castillo to a nearby hospital where he

die d approximately a week later without having regained

consciousness. Castillo’s tragic death was caused by anoxic

encephalopathy that produced cardiorespiratory arrest during the

positional asphyxia that resulted from his being laid on the

ground, handcuffed and in the prone position, for four to six

minutes with the weight of two adults on his back. 2

The Castillos filed state wrongful death and survival claims,

and a federal civil r ights claim under 42 U.S.C. § 1983, against

the Defendants. The Castillos alleged violations of the Fourth,

Fifth, Eighth, and Fourteenth Amendments of the United States

C onstitution. They also asserted a negligence claim against the

City of Round Rock and both statutory and common law tort claims

against Kincaide, Ledesma, an d Jacobs, in their individual and

official capacities.

The parties agreed to proceed before a magistrate judge. The

Defendants filed motions for summary judgment, which the magistrate3 146 F.3d 282 (5 t h Cir.)(order denying rehearing en banc),

cert

. denied , 119 S. Ct. 618 (1998).

4 Id . at 284 (citation omitted).

5 See Id

.

5 judge granted as to the Fifth and Eighth Amendment claims but

denied as to the Fourth and Fourteenth Amendment claims and as to

the state law claims as well. The Defendants timely filed notices

of appeal from the court’s interlocutory refusal to dismiss all

claims on grounds of qualified or official immunity.

II.

Analysis

We conclude that we have jurisdiction to review this case. We

recently clarified our ap proach to the arcane issues whether and

under what circumstances we can review a district court’s

interlocu tory denial of qualified immunity. In C olston v.

Barnhart

, 3 we stated that:

when a district court denies a motion for

summary judgment on the ground that “genuine

issues of material fact remain,” the court has

made two distinct legal conclusions. First,

the court has concluded that the issues of

fact in question are genuine, i.e., the

evidence is sufficient to permit a reasonable

fact finder to return a ve rdict for the

nonmoving party. Second, the court has

concluded that the issues of fact are

material, i.e., resolution of the issues might

affect the outcome of the suit under governing

law. 4

Thus, an appellate court may not review a district court’s

determination that disputed issues of fact are gen uine, but may

review the question of materiality. 5 The Defendants maintain that

when we accept as true that Castillo raised his hands to surrender6 S ee Graham v. Connor

, 490 U.S. 386, 395 (1989)(“[A]ll

claims that law enforcement officers have used excessive force ——

deadly or not

—— in the course of an arrest, investigatory stop, or

other single <

seiz ure’ of a free citizen should be analyzed under

the Fourth Amendment and its < reasonableness’ standard....”).

7 G raham

, 490 U.S. at 396 (citations and internal quotations

omitted).

8 Id

.

6 peacefully and accept the Castillos’ version of how the police

officers’ actions led to Castillo’s death, we have jurisdiction to

consider whether the lower court erred in not granting summary

judgment. In essence, the Defendants argue that the disputed facts

do not affect whether qualified immunity applies; rather that, even

assuming the truth of the Castillos’ version of the facts, the

Defendants have not violated Castillo’s constitutional rights. As

such, any genuine dispute about the facts is not material. We

agree that, under such an approach, we have appellate jurisdiction.

Claims of excessive or deadly force arise under the Fourth

Amendment. 6 The “reasonableness” standard requires a “careful

balancing of the nature and quality of the intrusion on the

individual’s Fourth Amendment interests against the countervailing

governmental interests at stake.” 7 The reasonableness

determination involves a fact-intensive analysis of the cas e

,

including consideration of “ 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” to

determine whether the force used was excessive. 8

When, in our de novo review, we consider the otherwise7

disputed facts in the light most favorable to the Castillos, we are

convinced beyond peradven ture that the officers did not use

excessive force or deliberately disregard Castillo’s medical needs.

Neither side disputes that Castillo raised the beer bottle in the

air in response to the officer’s commands. Regardless of

Castillo’s subjective intent in doing so, it is not unreasonable to

assume that, given the totality of the circumstances, Officer

Kincaide c ould have perceived Castillo’s action as threatening.

More particularly, as the threat thus perceived inclu des the

perception of the beer bottle as a dangerous weapon, a pre-emptive

strike by the officer to disarm the perceived adversary imparts no

culpability to the officer, even if his action is found (or

assumed) to be the immediate producing cause of the ensuing

altercation.

In any event, in the struggle that followed, Castillo refused

to submit, actively resisting by kicking and yelling

—— and

bloodying the officer’s nose

—— in a manner that a reasonable

officer could perceive as hostile. That Castillo’s struggle might

eventually have become a panic reaction to his positional asphyxia

changes neither its perception to reasonable officers as hostility

and resistance to arrest nor the fact that it clearly began as

hostile resistance to lawful and reasonable demands of the police.

We are satisfied that the officers were not unreasonable in placing

Castillo in a prone position and incapacitating him as quickly and

professionally as possible, by climbing on top of his back and

securing his hands and legs, so as to protect themselves and

bystanders from a la rge and powerful man who was clearly out of9 123 F.3d 586 (7 t h Cir. 1997), cert

. denied

, 118 S. Ct. 1052

(1998).

10 See Id . at 593.

11 See Id . at 597.

1 2 U nited States v. Montoya de Hernandez

, 473 U .S. 531, 542

(1985)(quoting United States v. Place

, 462 U.S. 696, 709 n.10

(1983)).

13 Estate of Phillips , 123 F.3d at 593.

8 control and refusing to submit to the officers’ commands.

In th e recent and eerily similar Seventh Circuit case of

E state of Phillips v. City of Milwaukee

, 9 an obese, mentally ill

man who was hostile to police died from positional asphyxia after

being held in the prone position while being handcuffed. The court

determined that t he officers’ actions constituted a reasonable

response to the situation that they faced

—— a hostile suspect who

refused to be restrained. 10 The P hillips cou rt found no

constitutional violation and did not reach the issue of qualified

immunity. 11

“Authorities must be allowed < to graduate their response to the

demands of any particular situation.’” 12 “Restraining a person in

a prone position is not, in and of itself, excessive force when the

person restrained is resisting arrest.” 13

Our review of the applicable law and the operable facts

——

resolving all disputes in favor of the Castillos

—— convinces us

that the situation faced by the officers in their encounter with

Castillo justified the degree of forc e exerted under the

c ircumstances and was not unreasonable, either quantitatively or

qualitatively. Neither can it be said that the officers had1 4 The Texas law of “official immunity” is essentially

identical to the federal law of qualified immunity, sparing

government officials from litigation on matters arising from or

conne cted with the discharge of discretionary duties, as long as

the officials act in good faith and within the scope of their

authority, City of Lancaster v. Chambers

, 883 S.W.2d 650, 653 (Tex.

1 994). As the defendant officers were clearly discharging

discretionary duties within the scope of their authority, and as

the same facts that demonstrate objective reasonableness for

federal purposes demonstrate goo d faith for state purposes, s ee City of Lancaster

, 883 S.W.2d at 656-57 (holding that a reasonably

prudent officer acting under the same or similar circum stances

could have believed that the force used was necessary, is acting in

good faith), the defendant officers here are entitled to official

immunity.

9 disregard, deliberate or otherwise, for Castillo’s health needs.

As soon as his distress w as recognized he was placed in the

ambulance and rushed to the hospital. The procedures used were

well within police norms; both the time and the extent of the force

were reasonable if not minimal; and the abandonment of force and

commencement of concern for the health of the person restrained

were timely and appropriate. Under the circumstances, there was no

constitutional violation and thus no legal support for the claims

advanced by the plaintiffs. Consequently, the rulings of the

district court denying dismissal must be reve rsed and judgment

rendered in favor of the Defendants, dismissing all claims against

them. 14

REVERSED and RENDERED.