REVISED, May 8, 1998

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 97-50082

____________

RENE GUTIERREZ, Individually and on behalf of

the estate of Rene Gutierrez, Jr; LIBRAVA

GUTIERREZ, Individually and on behalf of the

Estate of Rene Gutierrez, Jr; ROSANNA

GUTIERREZ, as next friend of Monica Gutierrez

and Monique Gutierrez,

Plaintiffs-Appellees,

versus

CITY OF SAN ANTONIO; ET AL,

Defendants,

LAWRENCE WALTERS, San Antonio Police Officer

individually and in his official capacity;

ROBERT SOLIS, San Antonio Police Officer

individually and in his official capacity

Defendants-Appellants.

Appeal from the United States District Court

For the Western District of Texas

April 14, 1998

Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The family of Rene Gutierrez, Jr. (“Gutierrez”) brought suit

against the defend ant police officers, Lawrence Walters, Jr. and

Robert Solis (the “officers”), for allegedly depriving him of his-2-

rights under the Fourth and Fourteenth Amendments of the U.S.

Constitution by hog-tying him. The district court issued an order

granting in part and denying in part the officers’ summary judgment

and F ED

. R. C IV

. P.12 (b)(6) motions. The officers now bring an

interlocutory appeal seeking dismissal or summary judgment based on

qualified immunity. Because we conclude that material disputes of

fact prevent us f rom determining the objective reasonableness of

the officers’ conduct, we dismiss their appeal of the Fourth

Amendment claim for lack of jurisdiction and vacate and render a

take nothing verdict on the Fourteenth Amendment claim.

I

Shortly before midnight on November 27, 1994, Walters and

Soli s drove toward a heavily trafficked intersection in San

Antonio, Texas, in a part of town known for high drug use. Passing

through the intersection, they saw Gutierrez stand up from the side

of the street and begin stumbling around in the intersection,

wearing a pair of trousers but no shoes, shirt, or other clothing.

Walters initially thought that Gutierrez was intoxicated. He

turned the patrol car around appr oximately one block west of

Gutierrez and began to drive back towards Gutierrez. The officers

observed him running around in circles in the middle of the street

and slipping and falling on his side. As they parked the patrol

car and approached Gutierrez, he began swinging his arms wildly and

crawling toward them on his hands and knees. Gutierrez shouted out

that he had been shot; th e officers checked, but found no bullet

wounds on Gutierrez or nearby persons with guns. The officers did-3-

notice numerous abrasions on his chest and bleeding from his mouth.

Walters cuffed Gutierrez “for his safety and mine.” He did

not arrest Gutierrez, but p olice reports indicate that Walters

intended to do so later. Walters also noted that Gutierrez’s eyes

were glassy, he was walking unsteadily, and his speech was slurred.

When Walters asked Gutierrez if he had taken any drugs, Gutierrez

said that he had “shot some bad coke.” Solis later testified that

Gutierrez was “exhibiting that he was high on some type of drugs.”

Solis called an a mbulance (“EMS”), allegedly for a possible

toxic ingestion overdose. While waiting for the EMS to arrive,

Gutierrez sat calmly with his back against a re ar door of the

patrol car. As traffic in the intersection increased, Walters

placed Gutierrez face down in a prone position in the back seat and

drove the patrol car into a neighboring parking lot. Gutierrez was

quiet and peaceful, and his feet were not restrained in any way.

When the EMS arrived, Wa lters told EMS Technicians Ernest

Lavin and Michelle Cevallos t hat Gutierrez had admitted to

injecting bad cocaine. Lavin and Walters removed Gutierrez from

the back seat of the patrol car and walked him toward the EMS

vehicle. When Gutierrez got to the rear of the EMS unit, he turned

around and sat down. Gutierrez suddenly began to push and tried to

get into the EMS vehicle, yelling “put me in.” As abruptly, he

kicked Lavin in the chest, and shouted “get me out.” Due to this

violence, Lavin refused to transpor t Gutierrez to the hospital.

Walters then aske d Lavin whether Gutierrez could be safely

transported in a patrol car, to which Lavin replied that Gutierrez-4-

appeared to be having psychiatric problems rather than a reaction

to bad drugs.

Walters and Lavin returned Gutierrez to the back seat of the

patrol car to transport him to a local hospital for examination,

allegedly placing him face down in the back seat. Gutierrez began

to kick the back of the driver’s seat, the metal cage, and the

windows of the pa trol car with his bare feet. Walters and Solis

agreed that Gutierrez’s legs would have to be restrained, “for his

safety and ours.” Solis got his personal leg-restraint device from

the patrol car, a nylon rope with a loop on one end and a clasp on

the other (a “hog-tie”). Walters placed the loop around Gutierrez’s

feet, and Solis linked the clasp around the handcuffs, drawing

Gutierrez’s legs backward at a 90-degree angle in an “L” shape,

thereby “hog-tying” him. Whether the officers then placed

Gutierrez in a face down position on the rear seat or with his face

pointed toward the rear of the front seat is disputed, but as the

officers set off for the hospital, he was conscious and struggling.

Walters and Solis drove to the h ospital at a normal rate of

speed with their lights and sirens off and the rear of the patrol

car darkened. While Walters drove, Solis occasionally checked to

see if Gutierrez’s restraints were secure, but he did not check to

see if Gutierrez was still breathing or otherwise monitor him.

Approximately ten minutes into the journey, all sounds of Gutierrez

struggling stopped. Upon arriving at the hospital, Walters went

into the hospital to summon medical personnel while Solis,

believing Gutierrez to be asleep, began to nudge him. At that-5-

time, Gutierrez was face down on the seat, a position that

allegedly restricted the amount of oxygen that could reach his

heart a nd his heart’s ability to pump oxygen-enriched blood

throughout his body. Medical personnel came out to the car, the

restraints were removed, and the medical personnel discovered that

Gutierrez did not have a pulse. They then took him into the

emergency room where doctors pronounced him dead.

At the autopsy, Dr. Vincent DiMaio, Chief Medical Examiner of

Bexar County, initially determined that Gutierr ez had died as a

result of the combined effects of methadone, cocaine, imipramine

and morphine. Dr. DiMaio later issued an addendum to the Autopsy

Report that stated:

Subsequent to comple tion of the autopsy report on

Rene Gutierrez, this office discovered that when the

deceased was transported in the S an Antonio Police

Department un it, that he was placed on the back seat,

face down, his hands secure d behind his back with

handcuffs and his feet tied with a rope which was then

tied to his hands or the handcuffs. In other words, the

deceased was “hog tied.”

It is known that “hog tying” of an individual and

placing them in the position that Rene Gu tierrez was

placed, can produce a relative hy poxia and in some

instances death. Based on the new information supplied,

it is our opinion that the “hog tying” was a contributory

cause to Rene Gutierrez’s death.

Gutierrez’s family filed a clai m alleging violations of 42

U.S.C. §§ 1981, 1983, 1985 and 1986 based the Fourth, Eighth, and

Fourteenth Amendments of the U. S. Constitution and pendant state

tor t law claims. Solis filed a motion to dismiss or, in the

alternative, for summary judgment, base d on a qualified immunity

defense. Walters also filed a summary judgment motion arguing the

same defense.1 Solis filed a motion urging that the district court

either dismiss Gutierrez’s complaint under F ED

. R. C IV

. P. 12(b)(6)

or grant him summar y judgment under F E D

. R. C IV

. P. 56. Solis

attached materials outside the pleading s to this motion, thereby

converting it into a Rule 12(c) motion. We review the denial of a

Rule 12(c) motion under the same standard of review as a summary

judgment motion. See Baker v. Putnal , 75 F.3d 190, 197 (5th Cir.

1996).

-6- In response to th e se motions, Gutierrez introduced three

pieces of evidence into the summary judgment record suggesting hogtying to be unreasonable under these circumstances: (1) a 1991 San

Diego Task Force Study in the possession of the San Antonio Police

Department (“SAPD”) in No vember 1994 indicating that the

combination of hog-tying a drug-affected person in “cocaine

psychosis” (excited delirium) and “positional asphyxia” (placing

them in a face-down prone position) can lead to death (“Sudden

Custody Death Syndrome” or “SCDS”); (2) an article entitled “Sudden

Custody Death Syndrome: The Role of Hogtying,” that appeared in the

fall 1994 issue of Criminal Law U pdate; and (3) a memo issued by

SAPD Captain Benavides ten days after the death of Gu tierrez

“reminding” officers that hog-tying anyone was prohibited.

The district court dismissed Gutierrez’s Eighth Amendment

claim but denied summary judgment on the Fourth and Fourteenth

Amendment claims. Walters and Solis timely appealed from the

denial of their motions.

II

We review the denial of a summary judgment motion de novo

,

viewing the evidence in the light most favorable to the nonmovant. 1

See Nerren v. Livingston Police Dep’t

, 86 F.3d 469, 470 & n.1 (5th-7-

Cir. 1996). Summary judgment is appropriate where “there is no

genuine issue of material fact and [] the moving party is entitled

to judgment as a matter of law.” F E D

. R. C IV

. P. 56(c). To win

summary judgment, the movant must show that the evidence in the

record would not permit the nonmovant to carry its burden of proof

at trial. S ee Celotex v. Catrett

, 477 U.S. 3 17, 327, 106 S. Ct.

2548, 2554, 91 L.Ed.2d 265 (1986). Once the movant meets this

burden, the burden of coming forward with evidence in the summary

judgment record creating an issue of material fact shifts to the

nonmovant. See Hale v. Townley , 45 F.3d 914, 917 (5th Cir. 1995).

The nonmovant must set forth specific facts showing a genuine issue

for trial. S ee Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 250,

106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute over a

material fact is genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id . at 248,

106 S. Ct. at 2510. “Material facts” are those “that might affect

the outcome of the suit under the governing law.” Id

.

III

Although Gutierrez concedes that we have jurisdiction to hear

this interlocutory appeal, we have an independent duty to examine

the basis for our jurisdiction. S ee Behrens v. Pelletier

, 516 U.S.

))

, 116 S. Ct. 834, 842, 133 L.Ed.2d 773 (1996) (holding that where

there are issues of law separable from the merits of a claim, a

court of appeals has jurisdiction to review those issues of law on

interlocutory appeal, even when the district court denied summary

judgment on the basis that material disputes of fact remain);-8-

Johnson v. Jones

, 515 U.S. 304, 313, 115 S. Ct. 2151, 2156, 132

L.Ed.2d 238 (1995) (holding that when the only issue presented on

interlocutory appeal is whether the evidence could su pport a

finding that an official’s conduct violated clearly established

law, a court of appeals lacks jurisdiction to review the denial of

summary judgment). In the instant case, the district court’s order

did not state why it denied the officers’ Rule 12(b)(6) and summary

judgment motions. After “undertak[ing] a cumbersome review of the

record to determine what facts the district court, in the light

most favorable to the nonmoving party, likely assumed,” J ohns on

,

515 U.S. at 319, 115 S. Ct. at 21 59, we find there to be several

disputes of material fact. However, as even Gutierrez concedes, we

have jurisdiction to consider the officers’ contention that issues

of law separable from the merits exist )) namely, whether hog-tying

violates clearly established law and whether thei r conduct was

objectively reasonable. See Behrens

, 516 U.S. at ))

, 116 S. Ct. at

842; Cantu v. Rocha , 77 F.3d 795, 802 (5th Cir. 1996).

IV

Qua lified immunity protects officials in the course of

performance of their discretionary duties unless thei r conduct

violates a “clearly established [federal] statutory or

const itutional right[] of which a reasonable person would have

known.” Harlow v. Fitzgerald

, 457 U.S. 800, 818, 102 S. Ct. 2727,

2738, 73 L.Ed.2d 396 (1992). We first determine whether a

plaintiff has alleged the violati on of a clearly established

constitutional right. S ee Siegert v. Gilley

, 500 U.S. 226, 231,-9-

111 S. Ct. 1789, 1792-93, 114 L.Ed.2d 277 (1991). If we find a

right to be clearly established, we exam ine the objective legal

reasonableness of the official’s conduct under the circumstances,

“in light of clearly established law and the information the []

officers possessed.” Anderson v. Creighton

, 483 U.S. 635, 640, 107

S. Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). Qualified immunity thus

protects an official whose conduct was objectively reasonable, even

if the conduct infringed upon a constitutional right of the

plaintiff. See id. at 641, 107 S. Ct. at 3040.

A

1

Walters and Solis initially argue that the right to be free of

hog-tying was not clearly establish ed in November 1994 because

neither the Supreme Court nor the Fifth Circuit (or any other

circuit) had specifically held that hog-tying constituted excessive

force. Such a dogmatic argument is unjustified. In A nderson

, the

Supreme Court stated that whether a clearly established right has

been violated “substantially depends upon the level of generality

at which the relevant ‘legal rule’ is to be identified.” 483 U.S.

at 639, 107 S. Ct. at 3038-39. The Court thus required that “the

contours of the right” be defined narrowly enough so that a given

official, with the information that he possesses at the time he

takes the action, could understand that what he is doing violates

the right. Id

. at 640, 107 S. Ct. at 3039. However, the Court did

not require that the specific action in question have been held

unlawful to overcome the official’s qualified immunity. I d

. It-10-

held only that the unlawfulness of the specific action be apparent

“in the light of pre-existing law.” Id

.

Gutierr ez’s family alleges that the officers used excessive

force against Guti errez by hog-tying him, in violation of the

Fourth Amendment. The protections of the Fourth Amendment are

triggered when a police officer seizes an individual. See Tennessee

v. Garner

, 47 1 U.S. 1, 7, 105 S. Ct. 1694, 1699, 85 L.Ed.2d 1

(1985) (“Whenever an officer restrains the freedom of a person to

walk away, he has seized that person.”); see also California v.

Hodari D.

, 499 U.S. 621, 624-25, 111 S. Ct. 1547, 1550, 113 L.Ed.2d

690 (1991); Brower v. County of Inyo

, 489 U.S. 593, 596-97, 109 S.

Ct. 1378, 1381, 103 L.Ed. 2d 628 (1989). Whether a seizure is

reasonable under the Fourth Amendment depends not only upon whether

the seizure itself is reasonable, but also upon how the police

seize the individual or item. S ee Garner, 471 U.S. at 7-8, 105 S.

Ct. at 1699; Harper v. Harris County, Tex. , 21 F.3d 597, 600 (5th

Cir. 1994). “All claims that law enforcement officers have used

excessive force )) deadly or not )) in the course of an arrest,

investigatory stop, or other ‘seizure’ of a free citizen should be

analyzed unde r the Fourth Amendment and its ‘reasonableness’

standard[.]” Graham v. Connor

, 490 U.S. 386, 395, 109 S. Ct. 1865,

1871, 104 L.Ed.2d 443 (1989). The Fourth Amendment’s prohibition

of the use of excessive force by the police against seized persons

had thus been clearly established prior to November 1994.

Because Anderson requires that “the contours of the right []

be sufficiently clear that a reasonable official would understand-11-

that what he is doing violates the right,” 483 U.S. at 640, 107 S.

Ct. at 3039, we will examine whether a reasonable police officer in

November 1994 would have known whether hog-tying falls within the

bound s of the Fourth Amendment’s prohibition of the use of

excessive force “in the light of pre-existing law.” Id

. at 640,

107 S. Ct. at 303 9. As a subset of excessive force claims, in

Garner, the Supreme Court held that police use of “deadly force”

violates the Fourth Amendment u nless “the officer has probable

cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others[.]” 471 U.S. at

11, 105 S. Ct. at 1701

. Although guns represent the paradigmatic

example of “deadly force,” Garner failed to address whether other

police tools and instruments can also be characterized as “deadly

force.” Lower courts since have struggled with whether to

characterize various police tools and instruments as “deadly

force.” See, e.g., E state of Phillips v. City of Milwaukee , 123

F.3d 586, 593-94 (7th Cir. 1997) (restraint in a prone position);

Qu intanilla v. City of Downey , 84 F.3d 353, 357 (9th Cir. 1997)

(police dog); In re City of Philadelphia Litigation , 49 F.3d 945,

966 (3rd Cir. 1995) (bomb); Donovan v. City of Milwaukee , 17 F.3d

944, 949-950 (7th Cir. 1994) (deadman roadblock) ; Robinette v.

Barnes , 854 F.2d 909, 911-12 (6th Cir. 1988) (police dog). These

courts have generally described “deadly force” as force “carry[ing]

with it a substantial risk of causing death or serious bodily

harm.” Robinette

, 854 F.2d at 912 . Although we have not had

occasion to adopt this description, both the Texas statute and SAPD-12-

procedures in effect in November 1994 e m ployed it. See T EX

. P ENAL

S TAT

. A NN

. § 1.07(17); SAPD P rocedure 501.03(C) (“‘Deadly Force’

means force that is intended or known by the actor to cause, or in

the manner of its use or intended use, is capable of causing death

or serious bodily injury.”). The Texas statute and SAPD procedures

in effect in November 1994 also conformed to Garner ’s holding that

an officer can use “deadly force” only against a suspect who poses

a threat of death or serious physical harm to the officer or to

others. See T EX

. C ODE C RIM

. P. A NN

. art. 6.06; SAPD Procedure 501.05

( “An officer uses deadly force only in situations which indic ate

t hat he or another person may be seriously injured or kill ed if

such deadly force is not used.”). Accordingly, we find both the

definition of “deadly force” and Garner ’s holding to have been

clearly established prior to November 1994.

2

T he question thus becomes whether hog-tying in these

circumstances creates a substantial risk of death or serious bodily

injury, and hence, becomes deadly force. Gutierrez relies on the

San Diego Study suggesting that a number of persons in police

custody have died due to SCDS. See San Diego Police Department,

Final Report of the Custody Death Task Force (unpu blished, June

1992) (“San Diego Study”). This Study finds SCDS to be caused by

the combination of (1) drug use, (2) positional asphyxia, (3)

cocaine psychosis, and (4) hog-tying or carotid choke holds. Id

. at

6-12. Gutierrez thus presents sufficient evidence that hog-tying

may create a substantial risk of death or serious bodily injury in-13-

these circumstances and thereby become deadly force. See Chew v.

Gates

, 27 F.3d 1432 (9th Cir. 1994) (suggesting that whether a

given tool or instrument in certain circumstances is “deadly force”

is a question of fact). Assuming this evidence to b e true, hogtying in thes e circumstances would have violated law clearly

established prior to November 1994.

B

To determine the objective reasonableness of Walters and

Solis’ conduct, we examine whether “a reasonable officer could have

believed [their conduct] to be lawful, in light of clearly

established law and the information the [] officers posses sed.”

Ander son , 483 U.S. at 641, 107 S. Ct. at 3040. We balance “‘the

nature and quality of the intrusion on the individual’s Fourth

Amendment interests’ against the countervailing governmental

interests at stake.” Graham , 490 U.S. at 396, 109 S. Ct. at 1871

(quoting Garner

, 471 U.S. at 8, 1 05 S. Ct. at 1699). We pay

“careful attention to the facts and circumstances of each

particular case, including the severity of the crime at issue,

whether the suspect pose[d] an immediate threat to the safety of

the officers or others, and whether he [was] actively resisting

arrest or attempting to evade arrest by flight.” Id

. at 396, 109 S.

Ct. at 1872. We do not utilize “the 20/20 vision of hindsight,”

id

., and we consider “the fact that police officers are often

forced to make split second judgments )) in circumstanc es that are

tense, uncertain, and rapidly evolving )) about the amount of force

that is necessary in a particular situation.” Id . at 396-97, 109-14-

S. Ct. at 1872. Thus, “[e]ven law enforcement officials who

‘reasonably but mistakenly’ [use excessive force] are entitled to

i mmunity.” H unter v. Bryant

, 502 U.S. 224, 227, 112 S. Ct. 534,

536, 116 L.Ed.2d 589 (1991) (quoting Anderson

, 483 U.S. at 641, 107

S. Ct. at 3040).

In arguing that their conduct was objectively reas onable,

Walters and Solis first present the affidavit of Commander Albert

Rodriguez, who states that the official policies of the SAPD, the

Texas Department of Public Safety , and the International

Association of Chiefs of Police Use of Force Model Policy in

N ovember 1994 did not prohibit the use of hog-ties. He further

avers that SCDS was not known to reasonably well-trained police

officers in Texas at that time, and that hog-tying was reasonable

under these circumstances. To counterbalance this affidavit,

Gutierrez presents that of Lou Reiter, former Deputy Chief of the

Los Angeles Police Department, who analyzes the facts of this case

and states that Solis and Walters’ use of force and actions were

unreasonable. Claiming that a “battle of the experts” thus exists,

Solis and Walters assert that the y are entitled to qualified

immunity beca use “if officers of reasonable competence could

disagree on this issue, immunity should be recognized.” M alley v.

Briggs

, 475 U.S. 335, 341, 106 S. Ct. 1092, 1 096, 89 L.Ed.2d 271

(1986). We do not believe that the Supreme Court intended by this

statement to mean that summary judgment must be granted in favor of

the police whenever they can find an expert to testify that their

actions were reasonable; in such a scenario, the police would2 An analogous issue often arises in cases concerning

possible contract ambiguity. A contract is not ambiguous just

because one party so claims or because the parties disagree on the

correct interpretation of its terms. See D.E.W., Inc., v. Local 93,

Laborers’ Int’l Union , 957 F.2d 196 (5th Cir. 1992).

-15- virtually always win summary judgment. Moreover, an expert’s

o pinion does not establish reasonableness as a matter of law,

especially whe n directly contradicted by another expert’s wellsupported opinion. 2 See Anderson v. Liberty Lobby, Inc. , 477 U.S.

242, 106 S. Ct. 2505, 91 L.Ed.2d 202 (1986) (holding that

credibility determinations are to be determined by the trier of

fact, not by the court on a summary judgment motion); 7 Wigmore on

Evidence § 1920, at 18 (Chadborn rev., 1978) (holding that an

expert cannot usurp the jury’s function as a trier of fact because

the jury can choose to reject the expert’s opinion). We can still

conclude, of course, that one exp ert accurately expresses what a

reasonable police officer would do, but we are not forced to so

conclude by the mere presence of an expert’s opinion.

The officers also point to certain facts that may favor them.

They argue that Gutierrez may have posed a threat to himself,

themselves, and the public as he stumbled a round in the

intersection, although they do not argue that he posed a threat of

death or serious physical injury to themselves or to others. See

Garner

, 471 U.S. at 3, 105 S. Ct. at 1697. They further note that

immediately prior to being hog-tied, Gutierrez attempted to kick

the back of the driver’s seat, the metal cage, and the windows of

the patrol car with his bare feet, and that they believed

Gutierrez’s legs had to be restrained, “for his safety and ours,”3 The summary judgment record depositions of both Walters

and Solis indicate that a wagon may have been available to

transport Gutierrez, but that they chose not to call a wagon

because they were afraid that Gutierrez might injure himself on the

metal interior of the wagon. We express no opinion as to the

wisdom of the officers’ decision to transport Gutierrez in a patrol

car rather than in the wagon.

-16- although they concede that at man y other points during their

encounter Gutierrez was quiet and nonviolent. They also note that

the EMS technicians refused to transport Gutierrez because of his

violence, suggesting that they had no alternative but to hog-tie

him in order to transport him. 3 Finally, they also argue, and

Gutierrez’s family does not dispute, that they were trying to help

Gutierrez by taking him to the hospital when they hog-tied him, not

to hurt him.

To counter this s ummary judgment record evidence, Gutierrez

points to many material disputes of fact. A material dispute of

fact exists as to whether a reasonable officer would have known of

the first alleged causal factor of SCDS, Gutierrez’s drug use.

Some evidence suggests that Walters and Solis knew that Gutierrez

was under the influence of drugs. Gutierrez told Walters that he

had used bad cocaine. His eyes were glassy, his speech was

slurred, and he walked unsteadily, all classic symptoms of drug use

on which the officers received police academy training. Solis also

noted that Gutierrez was “exhibiting that he was high on some type

of drugs.” Later, after refusing to transport Gutierrez, EMS

Technician Lavin characterized Gutierrez as having psychiatric

problems rather than a reaction to bad drugs, suggesting that as

the encounter progressed, the officers’ perception of Gutierrez as4 Even if the jury concludes that the officers placed

Gutierrez on his side, it may still conclude that the officers’

failure to monitor him, see post at 2856, amounted to deliberate

indifference, thereby permitting Gutierrez to roll into a face down

position during the time that the officers transported him to the

hospital.

-17- bei ng under the influence of drugs changed to one in which they

concluded they were dealing with a person experiencing psychiatric

problems. Other evidence could lead the jury to either conclusion.

Anoth er material dispute of fact exists with regard to the

second alleged causal fac tor of SCDS, positional asphyxia. The

officers claim they placed Gutierrez on his side with his head

facing the front of the rear seat, while Gutierrez’s family alleges

that they placed him face down on the rear seat. It is clear that

upon arrival at the hospital, at least, Gutierr ez was in a face

down position. This dispute is critical because the San Diego

Study suggests that SCDS and posi tional hypoxia allegedly result

when a person is placed in a prone face-down position so that all

of their weight is concentrated on their chest, thereby interfering

with the mechanical process of inhalation and exhalation. See

Donald T. Reay et al., Positional Asphyxia During Law Enforcement

Transport , 13 Am. J. Forensic Med. Pathology 90 (1992); Donald T.

Reay et al., Effects of Positional Restraint on Oxygen Saturation

and Heart Rate Following Exercise

, 9 Am. J. Forensic Med. Pathology

16 (1988). If the officers placed Gutierrez on his side, however,

no breathing impairment would have been created. 4

In Anderson

, the Supreme Court also noted that the information

an officer possesses when that officer takes an action impacts upon-18-

the objective legal reasonableness of the officer’s condu ct. 483

U.S. at 641, 107 S. Ct. at 3040. A material dispute of fact exists

with regard to whether the SAPD warned its officers of the possible

dangers of hog-tying in these circumstances prior to November 1994.

Walters and Solis present the affidavit of Commander Albert

Rodriguez, which we discussed supra at 14-15. The summary judgment

depositions of Walters and Solis also indicate that the SAPD never

informed them that hog-tying was prohibited or of its dangers in

these circumstances.

Substantial evidence, however, appears to contradict these

assertions. San Diego mailed copies of San Diego Study to police

departments around the nation, including the SAPD, in 1992.

Summar y judgment record deposition testimony indicates that the

SAPD had this study in its possession at the time of Gutierrez’s

death, putting the SAPD on notice of the possible dangers of hogtying in these circumstances. The Criminal Law Update article,

published in the fall of 1994 by the Texas Office of the Attorney

General, notes that “Texas agencies that have banned the use of

hog-tying include Dallas, San Antonio, Austin, Corsicana, and the

DPS.” See Garth D. Savage et al

., Sudden Custody Death Syndrome:

the Role of Hogtying ,” Criminal Law Update, at 1 1 (Fall

1994)(“Criminal Law Update article”). Although the depositions of

SAPD representati ves call into doubt whether the SAPD had indeed

banned hog-tying, just ten days after Gutierrez’s death, SAPD

Captain Benavides sent of ficers a memo “reminding” them that the

use of a hog-tie on an arrestee was not allowed. The use of the5 The depositions of Walters and Solis indicate that

although the SAPD did not offer formal training on the use of hogties, officers used them on a fairly widespread basis. Walters and

Solis each owned hog-ties that they purchased from other police

officers with their personal funds. The hog-tie used on Gutierrez

belonged to Officer Solis.

-19- word “reminding,” particularly in light of the Criminal Law Update

article, suggests that the SAPD may h ave either previously

p rohibited its officers from hog-tying arrestees or informed its

officers that in these circumstances, the use of a hog-tie could

prove to be dangerous. The summary judgment record depositions of

Solis and Walters further establish that the SAPD neither provided

hog-ties to its officers as part of their official equipment nor

trained them in their use. 5 It is curious that the SAPD would

condone hog-tying without instructing its officers how to use this

restraint device properly or the dangers associated with it in

these circumstances. Therefore, we find a material dispute of fact

to exist on this issue. This dispute is important because it may

be difficult to conclude that the officers acted reasonably if they

performed an action that had been banned by their department or of

whose dangers in these circumstances they had been warned.

Final ly, a material dispute of fact exists as to whether

Gutierrez posed a threat of death or serious bodily injury to the

officers or to others. At various points in the encounter, such as

when the officers initially placed Gutierrez in the patrol car and

drove into a neighboring parking lot, Gutierrez was quiet and

peaceful. Gutierrez’s family also points out that other police

officers arrived at the scene of the encounter but did not assist-20-

Walters and Solis in any way or stick around, thereby suggesting

that the other officers did not consider Gutierrez to be violent.

However, Gutierrez did kick Lavin in the chest, and Lavin’s summary

judgment record affidavit describes Gutierrez as “one of the most

agitated and violent persons that I have ever seen.” Moreover,

immediately prior to the hog-tying, Gutierrez was kicking the back

of the driver’s seat, the metal cage, and the windows of the patrol

car with his bare feet, and the depositions of the officers state

that they had to restrain his feet “for his safety and ours.”

Accordingly, there are many material issues of fact in dispute

which ultimately impinge upon our determination as to whether the

officers employed reasonable force or excessive (and deadly) force

by the manner in which they seized Gutierrez. Viewing these

disputed fact s in the light most favorable to Gutierrez, the

summary judgment record shows that the officers knew that Gutierrez

was under the influence of drugs and that they placed him face down

in a prone position. Further, the record shows that the SAPD

ei ther had prohibited hog-tying or informed its officers of its

dangers in these circumstances. The record also shows that

Gutierrez did not pose a threat of death or serious physical harm

to the officers or to others, for at least some time, perhaps even

a significant period of time, meaning that the officers were not

justified in using deadly force.

Other facts bearing heavily against the of ficers are not in

dispute. The officers admit that they failed to monitor Gutierrez

as they drove toward the hospital, other than occasionally to check6 In Garner

, the Supreme Court stated that “[w]e would

hesitate to declare a polic e practice of long standing

‘unreasonable ’ if doing so would severely hamper effective law

enforcement.” 471 U.S. at 19, 105 S. Ct. at 1705 (noting that many

alternative methods are available to apprehend unarmed, non-violent

fleeing suspects other than shooting). Both the San Diego Study

and the Criminal Law Update article point out common and

inexpensive alternatives to hog-ties. One device, called the RIPP

Hobble, consists of a Velcro strap to restrain the arrestee’s feet

and a cord to connect the handcuffs a nd the Velcro strap. Since

the arrestee’s feet are restrained, the arrestee cannot kick and

must sit upright, a position that allows normal breathing. This

device sells for approximately eight dollars. Criminal Law Update,

at 9-10. The Criminal La w Update article notes that inexpensive

flex-cuffs and plastic ties can be wrapped around an arrestee’s

wrists and ankles and secured to a center post in a patrol car. Id

. at 10. Assuming a rguendo that hog-tying is found to be

unreasonable by a jury, such a finding therefore may not hamper

effective law enforcement.

7 In Garner

, the Supreme Court explained that in

“evaluating the reason a bleness of police procedures under the

Fou rth Amendment, we have also looked to prevailing rules in

-21- to ensure that his bonds were still secure. S ee San Diego Task

Force Study at 12 (“The passenger officer should maintain

o bservation of the prisoner, monitoring his/her color, breathing

and level of consciousness.”); Criminal Law Update article at 11.

They also concede that th e rear of the cruiser was darkened and

that Solis rode beside Walters in the front of the car, rather than

beside Gutierrez where he could have monitored his condition. See

San Diego Study, at 12 (“During hours of darkness, an internal

light s ource should be used in the police vehicle if needed to

provide the passenger officer a clear view of the prisoner at all

times.”). Neither officer disputes that common and inexpensive

alternatives to hog-tying are now and were then available. 6

Neither officer disputes that hog-tying has been largely abandoned

by police forces in most large cities across the nation. 7individual jurisdictions.” 471 U.S. 15-16, 105 S. Ct. at 1703.

After receiving the San Diego Study, police departments nationwide

began to ban h og-tying. “At least 70 percent of the nation’s

largest police departments, including Det roit, New York, and Los

Angeles, have banned hog-tying.” Criminal Law Update at 11. The

article also notes that “Texas agencies that have banned the use of

hog-tying include Dallas, San Antonio, Austin, Corsicana, and the

DPS,” id.

, although, as we noted above, a material dispute of fact

exists as to whether the SAPD had in fact banned hog-tying or

warned its officers of its dangers under these circumstances.

8 Walters also argues that he cannot be liable for using

excessive force because Gutierrez’s death did not result “directly

and only from the use of forc e that was clearly excessive to the

need.” Johnson v. Morel

, 87 6 F.2d 477, 480 (5th Cir. 1989) (en

banc). Assuming, arguendo, that Johnson still has viability, see

Harper v. Harris County, T ex. , 21 F.3d 597, 600 (5th Cir. 1994)

(“We now hold that the Johnson standard is no longer valid in the

wake of Hudson v. McMillian.

. . .”), Walters’ argument is

misplaced. We recently interpreted the language that Walters cites

only to prohibit compensation for injuries caused by the use of

reaso nable force. S ee Dunn v. Denk

, 79 F.3d 401, 403 (5th Cir.

1996) (en banc) (“A trier of the fact can compensate only for the

injury caused by the use of excessive force. There can be no award

for injury caused by reasonable force.”). Hog-tying is asserted to

be excessive force and the addendum to the Autopsy Report lists it

as a contributory cause of Gutierrez’s death. Therefore, we reject

Walter’s argument.

9 O bjective reasonableness is determined by reference to

the law as it existed at the time the conduct in question took

-22- Moreover, unlike a rapidly evolving encounter with a pote ntially

armed suspect in which the officer must react quickly, see, e.g.,

Reese v. Anderson

, 926 F.2d 494, 501 (5th Cir. 1991), the officers

had time to contact a supervisor to get advice on how to transport

Gutierrez. Accordingly, based on the combination of the multiple

factual issues in dispute and the evidence weighing against the

officers, we cann ot determine whether Walters and Solis’ conduct

was objectively reasonable as a matter of law. 8

Cases from other circuits, albeit decided subsequently, are

not inconsistent. 9 In E state of Phillips v. Milwaukee

, 123 F .3dplace. S ee Harlow

, 457 U.S. at 818-819, 102 S. Ct. at 2738-39. We

accordingly d iscuss these cases only to show that they reach

similar results.

-23- 586 (7th Cir. 1997), two police officers attempted to restrain

Phillips, an obese person exhibiting psychiatric problems by

l owering him to the floor and handcuffing his arms and legs (but

not together in a hog-tie). One officer gently put her knee on his

back to keep him from rising while they called for a patrol wagon

to take him for mental observation at a hospital. The officers

continuously monitored Phillip’s condition, and when he ceased

breathing shortly thereafter, they began resuscitation efforts and

revived him, although he died the next day in a hospital. The

coroner found that Phillips’ medical condition, obesity and

positional asphyxia jointly contributed to his death. The Seventh

Circuit held the officers’ condu ct to be objectively reasonable

bec ause merely “restraining a person in a prone position with

constant monitoring, cannot be characterized, in itself, as

‘deadly’ force.” I d

. at 593-594. The Seventh Circuit, however,

expressly distinguish ed this factual situation from one in which

police hog-tie a person who thereby dies, and stated that a

different outcome might have resulted had Phillips been hog-tied.

Id

. The court also noted that Phillips’ medical problems were not

observable to the naked eye, and that the officers continuously

monitored him and quickly began resuscitation efforts.

Similarly, in Mayard v. Hopwood , 105 F.3d 1226, 1227-28 (8th

Cir. 1997), the Eighth Circuit held police officers’ use of a hogtie t o be objectively reasonable. When Mayard, the arrestee,-24-

became more and more violent, the police handcuffed her and

attempted to place her in a patrol car. Once in the car, she began

kicking and hitting an officer, to which the officers responded by

hog-tying her. Without much explanation, the Eighth Circuit held

the officers’ conduct to be objectively reasonable, “particularly

. . . in light of Mayard’s resistance.” Id . at 1228. The opinion

does not state, however, whether she was under the influence of

drugs, whether she was placed face-down, or whether she died as a

result of being hog-tied.

Finally, in Price v. San Diego , 1998 WL 1607 (S.D. Cal. Jan.

8, 1998), a drug-affected arrestee died in police custody after an

intense struggle that concluded with the police hog-tying him and

placing him in a face-down position. The plaintiffs in that case

relied on the San Diego Study and the research of Dr. Donald T.

Reay, as does Gutierrez’s family in this case. The district court

noted that a recent study calls the validity of Dr. Reay’s research

into question. S ee Tom Neuman et al., Restraint Position and

Positional Asphyxia , 30 Annals of Emergency Med. 578 (1997). The

court further noted that the persuasiveness of Dr. Neuman’s study

led even Dr. Reay to concede that hog-tying is “physiologically

neutral.” I d. at *5. Accordingly, the district court dismissed

all excessive force clai ms against the officers because “little

evidence is left that suggests that the hogtie restraint can cause

asphyxia.” I d

. at *4. Because Dr. Neuman’s study is not part of

the summary judgment record in this case and Walters and Solis have

not presented it to this court, however, we have not considered it-25-

in deciding whether their actions were objectively reasonable. See

Skotak v. Tenneco Resins, Inc.

, 953 F.2d 909, 915 (5th Cir. 1992);

Fields v. City of South Hou ston , 922 F.2d 1183, 1188 (5th Cir.

1991) (quoting John v. Louisiana

, 757 698, 710 (5th Cir. 1985))

(“[M]aterials not presented to the district court for consideration

of a motion for summary judgment are never properly before the

reviewing court.”).

In conclusion, our holding today is very limited. Both the

San Diego Study and Criminal Law Update article suggest hog-tying

may present a substantial risk of death or serious bodily harm only

in a limited set of circumstances )) i.e.

, when a drug-affected

person in a state of excited delirium is hog-tied and placed face

down in a prone position. San Diego Study at 6-10; Criminal Law

Update at 7. Whether these circumstances exist in this case is

unclear because of the many material disputes of fact. Based on

the disputed facts and undisputed facts not favoring the officers,

we cannot determine whether their conduct was objectively

reasonable. Assuming this case proceeds to trial, however, a very

different picture may result than the one painted by the summary

judgment record because Gutierrez must prove the issues that this

opinion assumes in his favor, and the jury can cho ose to credit

certain facts over others, which we cannot do in reviewing a denial

of summary judgment. See Spann v. Rainey

, 987 F.2d 1110, 1116 (5th

Cir. 1993) (noting that a different result may occur on

interlocu tory appeal from a denial of qualified immunity and at

trial because the plaintiff bears the burden of proving facts that10 Because disputes of material fact prevent us from

determining the objective reasonableness of the officers’ conduct,

we do not reach their other arguments.

-26- we consider in the light most favorable to him). Accordingly, we

dismiss the officers’ appeal from the district court’s denial of

summary judgment on Gutierrez’s Fourth Amendment claim for lack of

jurisdiction. 10 See Hale v. Townley

, 45 F.3d 914, 918 (5th Cir.

1995) (dismissing interlocutory appeal on a denial of summary

judgment on an ex cessive force claim because disputed material

issues of fact ma de it impossible to determine whether officers’

conduct was objectively reasonable); see also Naylor v. State of

La

, Dep’t of Corrections

, 123 F.3d 855, 857 (5th Cir. 1997); Harper

v. Harris County , 21 F.3d 597, 602 (5th Cir. 1994).

V

The district court also denied summary judgment on Gutierrez’s

Fourteenth Amendment claim. “A l l claims that law enforcement

officers have used excessive force )) deadly or not )) in the course of

an arrest, investigatory stop, or other ‘seizure’ of a free citizen

should be analyzed under the Fourth Amendment and its

‘reasonableness’ standard, r ather than under a ‘substantive due

process’ approach.” G raham

, 490 U.S. at 395, 109 S. Ct. at 1871

(emphasis in o riginal). While the Fourth Amendment protects

arrestees, once an arrest is complete, pretrial detainees are

protected by the due process clause of the Fifth or Fourteenth

Amendments. See Brothers v. Klevenhagen

, 28 F.3d 452, 455-56 (5th

Cir. 1994); Valencia v. Wiggins

, 981 F.2d 1440, 1445 (5th Cir.

1993). Although the point at which an arrest ends and pretrial-27-

detainment begins is not always clear, see Valencia

, 981 F.2d at

1449 n.44, we have held that the Fifth or Fourteenth Amendments

begin to protect persons “ after the incidents of arrest are

completed, after the plaintiff has been released from the arresting

officer’s custody, and a fter the plaintiff has been in detention

awaiting trial for a significant period of time.” Id

. at 1443-43

(emphasis in original). Thus, in B rothers

, we found Brothers to be

a pretrial detainee protected by the Fourteenth Amendment where he

had been arrested, proces sed by the police department, and spent

s everal hours in jail before the police allegedly used excess ive

force on him. 28 F.3d at 452.

Walters and Solis seized Gutierrez’s person, thereby

triggering his Fourth Amendment protections. Shortly thereafter,

Solis and Walters, the very officers who initially seized

Gutierrez, hog-tied him. The hog-tying also occurred relatively

close to the spot where the officers seized Gutierrez. Therefore,

we find that Gutierrez enjoyed the protections of the Fourth

Amendment. After a thorough review of Gutierrez’s complaint, we

find his Fourteenth Amendment claim to be based on the officers’

alleged use of excessive force, an alternative basis for recovery

to the Fourth Amendment claim. We accordingly vacate and render a

take nothing verdict on the Fourt eenth Amendment claim. S ee

Graham , 490 U.S. at 395, 109 S. Ct. at 1871.

VI

For the foregoing reasons, we DISMISS Walters and Solis’

appeal of Gutierrez’s Fourth Amendment claim and VACATE and RENDER-28-

a take nothing verdict on his Fourteenth Amendment claim.