Over the last week, law enforcement has been faced with the aftermath of the death of George Floyd in Minneapolis which was captured on video and showed an officer putting pressure on Floyd’s neck for nearly eight minutes, while Floyd remained in a prone position and handcuffed.  On the video, prior to becoming non-responsive, Floyd can be heard telling officers that he could not breathe.

It is important to note that not a single police officer that we are aware of has come out in support of the Minneapolis officers.  In fact, there is widespread agreement that the actions of the officers amounted to unreasonable force and the failure to intervene.  In the course of interviews of law enforcement trainers it became apparent that a number of trainers misunderstand the issues related to positional asphyxia and prone restraint.  At least one trainer from the State of Washington reported that the science indicating that positional asphyxia may compromise breathing and thereby cause serious harm or death had been debunked.

This is a dangerous position for a law enforcement trainer to take as it might be interpreted that since there is no danger, then leaving a restrained subject prone or prone while in a compromised position or with pressure on their back is okay since the theory that it is dangerous has been debunked.

The purpose of this section dealing with restraint of prisoners is to identify the competing studies and to recognize that the courts accept the fact that positional asphyxia, compression asphyxia, mechanical asphyxia, and prone restraint may impair breathing and cause death.

While accepting that there is a scientific or medical debate in these cases between competing doctors or scientists, it is a debate law enforcement should stay out of, while training instead on reasonable force, reasonable restraint, and immediate movement of arrestees to a position that facilitates breathing.

The idea that positional asphyxia in restraint cases was debunked rests on the findings in a single case that many in law enforcement training heralded.  In Price v. County of San Diego, (990 F.Supp. 1230 (S.D. Cal. 1998), two doctors faced off on the issue of positional asphyxia.  Dr. Reay who was one of the pioneers that studied positional asphyxia, and Dr. Neuman, who was hired by San Diego County to conduct a study on positional asphyxia and the hogtie method of restraint.  In the case Neuman refuted Reay’s initial conclusions that the level of oxygen decreases after exertion and that hogtying significantly impairs the arrestee’s ability to breathe such that the body cannot properly exhale carbon dioxide and also cannot replenish oxygen.   In the Price  case, Dr. Reay conceded that Neuman’s research was sound.  As a result, in this one District Court case, concluded that use of a hogtie was physiologically neutral.

From a legal perspective it should be recognized that decisions by Federal Districts Courts do not create any binding precedence.  Thus, one should look to the United States Court of Appeals for the 9th Circuit to determine if that Court, which does create binding precedent for officers in California, had determined that positional asphyxia, hog-tying or pressure on a prone subject’s back was not problematic.

One of the 9th Circuit’s lead cases in this area came just five years after the Price case.  In Drummond v. Anaheim, 343 F.3d 1052 (9th Cir. 2003), examined the following law enforcement conduct:

On March 25, 1999, Brian Drummond’s fiancee Olivia Graves called the Anaheim police. Drummond, who had a history of mental illness (bipolar disorder and schizophrenia), had run out of medication and was hallucinating and paranoid. Graves asked the police to help her take Drummond to the hospital to receive medical assistance.

Four Anaheim police officers responded to Graves’s call; among them were Kristi Valentine, a rookie, and Christopher Ned, her training officer. The officers determined that Drummond was not a danger to himself or others — the criteria for an involuntary psychiatric detention under CAL. WELF. & INST. CODE § 5150. The officers therefore refused to take him into custody, for transport or otherwise. Graves alleges that the officers were “not very professional,” and were “joking around” throughout the encounter. Later, Drummond voluntarily accompanied Graves to a medical facility to obtain the lithium that had been prescribed for him, but he had neither medical insurance nor enough money with him to obtain the drugs and left without them.

The next night, the Anaheim police were again called to help protect Drummond; his neighbor, David Kimbrough, called the police because he was afraid that Drummond was going to hurt himself by darting into traffic. Officers Ned, Valentine, and Brian McElhaney, responding to the call, found Drummond in a 7-Eleven parking lot; Ned and Valentine recognized him as the subject of the call from the night before. Drummond, who was unarmed, was hallucinating and in an agitated state, and the officers called for an ambulance to transport him to a medical facility, pursuant to § 5150. Before the ambulance arrived, however, the three officers decided to take him into custody, “for his own safety.”

Independent eyewitnesses saw Officer Ned “knock Drummond to the ground[,] where the officers cuffed his arms behind his back as Mr. Drummond lay on his stomach.” Although Drummond offered no resistance, McElhaney “put his knees into Mr. Drummond’s back and placed the weight of his body on him. [Ned] also put his knees and placed the weight of his body on him, except that he had one knee on Mr. Drummond’s neck.”

Drummond weighed only 160 pounds at the time of the incident; although there is no indication of McElhaney’s weight in the record, Ned weighed approximately 225 pounds at the time. With the two officers leaning on his neck and upper torso, Drummond soon fell into respiratory distress. Two eyewitnesses verified that “Mr. Drummond repeatedly told the officers that he could not breathe and that they were choking him. He also told them that he was thirsty and needed a glass of water. The officers however continued to put their weight upon Mr. Drummond[‘]s back and neck.” One of these eyewitnesses, Victor Calleja, stated that although McElhaney and Ned were “obviously causing [Drummond] to have trouble breathing,” “the officers were laughing during the course of these events.”

Approximately twenty minutes after Drummond was taken down, Officer Gregory Sawyer arrived at the parking lot. The officers then obtained a “hobble restraint,” which they used to bind Drummond’s ankles. One minute after the restraint was applied, Drummond went limp, and the officers realized that he had lost consciousness. They checked his pulse, and then removed the handcuffs and hobble restraint and turned him over, onto his back. The officers attempted to perform CPR on Drummond until the paramedics finally arrived.

Although Drummond was revived approximately seven minutes after losing consciousness, he sustained brain damage and fell into a coma. He is now in a “permanent vegetative state.”

Drummond’s medical expert, Dr. Sunil Arora, is the Medical Director of the Neurological Care Unit at the Community Hospital of San Bernadino, and one of Drummond’s treating physicians. Arora submitted a declaration stating that, to a reasonable medical probability, Drummond “suffered a cardiopulmonary arrest caused by lack of oxygen to his heart. The lack of oxygen . . . was caused by his inability to breathe caused by mechanical compression of his chest wall such that he could not inhale and exhale in a normal manner. [Arora believes] that this occurred when [Drummond] was face[-] down on the ground and the police officers set upon his back preventing the anterior wall of his chest from expanding.”

The United States Court of Appeals for the 9th Circuit rejected the officers’ reliance on the holding in Price and concluded:

The officers — indeed, any reasonable person — should have known that squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable. In this case, it is even more striking that the officers had been specifically warned of the extreme danger of this sort of force. Not only was there ample publicity in Southern California regarding similar instances of asphyxiation as a result of the use of similar force in the months before the incident, see $ 650,000 Settlement OKd in Inmate Death, L.A. TIMES, Feb. 24, 1999, at B4; Supervisors Asked to OK $ 2.5 Million to Settle Suits, L.A. TIMES, Feb. 2, 1999, at B1; but, more important, the Anaheim police department had issued a training bulletin in April of 1998 specifically warning officers that “when one or more [officers] are kneeling on a subject’s back or neck to restrain him, compression asphyxia [**19]  can result [‘t]hat may be a precipitating factor in causing death.’ ” Anaheim Training Bulletin # 98-14 (Apr. 1998). Although such training materials are not dispositive, we may certainly consider a police department’s own guidelines when evaluating whether a particular use of force is constitutionally unreasonable.

While the medical/scientific experts continue to testify and debate this issue, the cases continue to pile up.

Consider the following two cases where experts, one of whom takes the position that weight on an arrestee’s back and prone restraint is not dangerous and one who takes the position that it is dangerous are both allowed to testify.  If positional asphyxia were “debunked” only the former would be allowed to testify.

Carlock v. Williamson, 2012 U.S. Dist. Lexis 2817 (C.D. Ill. Jan. 10, 2012).

Amon Carlock was a pre-trial detainee who was housed at the Sangamon County Illinois Jail from October 9, 2007 until November 16, 2007. The Defendants in the case moved to exclude portions of the expert testimony of Mark Kroll and specifically Kroll’s testimony that there is no risk to face-down restraint even if weight is applied to an individual’s back. The Court denied the motion to exclude and held that Kroll was sufficiently qualified, his testimony was sufficiently reliable, and his testimony was sufficiently relevant. With respect to the reliability of Kroll’s testimony about prone restraint, the Court explained Kroll’s testimony relied on peer reviewed articles and authorities related to positional asphyxia, restraint position, and prone restraint. The Court noted that the effects of prone restraint on respiration had been tested and subjected to peer review, and that Kroll was qualified to rely on those studies and extrapolate upon them. The Court also noted that while the scientific evidence on positional asphyxia was divided, the evidentiary rules regarding expert testimony were broad enough to permit testimony that was the product of competing principles or methods. Thus, Kroll could provide testimony about prone restraint.

Goode v. City of Southaven, 2018 U.S. Dist. Lexis 166479 (N.D. Miss. Sep. 27, 2018).

Plaintiff Kelli Goode brought a complaint against a number of police and medical defendants which alleged that her husband Troy Williams’ death was caused by positional asphyxia and his placement in a prone maximal restraint. One of the medical defendants, Doctor Oliver, filed a motion to exclude Plaintiff’s expert testimony. Within the motion, defendant Oliver made a blanket objection that that there is no scientific basis for the assertion that prone maximal restraint causes positional asphyxia. The Court disagreed with Oliver’s position for a number of reasons. The Court noted that a 2007 study upon which Oliver relied did not include subjects like Troy Williams who had a history of cardiac and pulmonary problems. The Court then explained that none of the studies on which Oliver relied “replicated the conditions in the field, including psychological and physical stressors associated with pursuit by a law enforcement official, struggle or trauma.” The Court next stated that none of the studies involved restraints lasting longer than 15 minutes, whereas Troy Williams was placed in prone maximal restraint for approximately an hour and a half. The Court then explained that Troy Williams was under the influence of drugs, which would have disqualified him from participating in any of the studies on which Oliver relied. Lastly, plaintiff had cited to numerous texts which established a connection between prone maximal restraint and positional asphyxiation. For these reasons the Court stated, “the conclusion that PMR [prone maximal restraint] can cause positional asphyxia is reliable within the meaning of Daubert.”

Author’s Note:  Law enforcement should remove itself from the debate of science and medicine with respect to the physiological impact that prone restraint and weighted prone restraint have on an arrestee and instead should analyze the reasonableness of any restraint mechanism, particular once the subject is handcuffed.

Consider the following group of recent cases where various courts have reached conclusions on restraint asphyxia and the actions of officers.

McCue v. City of Bangor, 838 F. 3d 55 (1st Cir. 2016).

Bangor Police attempted to place Philip McCue into protective custody after McCue was exhibiting erratic behavior which was believed to have been caused by McCue’s ingestion of bath salts. Officers apprehended McCue and struggled to get McCue to give up his hands which were underneath his body. After being tased, McCue gave up his arm and hands and officers then went about securing McCue’s legs. After further struggle, McCue’s ankles were eventually secured with flex-cuffs and the officers then tied the ankle and wrist cuffs together with a police dog leash in position known as a five-point restraint or hog tie. Between the time the officers secured the ankles and then completed the hog tie, two large officers continually put pressure on McCue’s neck and upper body by kneeling and sitting on his back. When McCue was ultimately lifted off the ground, his body was limp. Thereafter, McCue was observed to be unresponsive and emergency medical responders could not resuscitate McCue.

In its analysis, the Court stated that it was clearly established at the time of the incident “that exerting significant, continued force on a person’s back ‘while that person is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.’” (quoting Weigel v. Broad, 544 F. 3d 1143, 1155 (10th Cir. 2008). The Court explained that abundant prior case law made clear that, “a jury could find that a reasonable officer would know or should have known about the dangers or exerting significant pressure on the back of a prone person, regardless of any lack of formal training.” Ultimately, the Court stated that disputed factual issues regarding when McCue stopped resisting and for how long officers continued to apply pressure to his back were material to the question of whether qualified immunity was proper.

Martin v. City of Broadview Heights, 712 F.3d 951 (6th Cir. 2013).

William Martin died in the early morning hours of August 16, 2007, after officers physically restrained and arrested him. When the officers originally encountered Martin, he was naked and speaking quickly and nonsensically. Officer Tieber caught up with Martin and fell on top of Martin’s back. Officer Semanco then arrived and dropped his knee into Martin’s side to keep him on the ground. Officers Tieber and Semanco then delivered a number of knee and hand strikes to Martin; Officer Tieber also folded his legs around Martin’s hips and thighs and gripped Martin’s chin with his right arm. Officer Zimmerman then arrived and kneeled on Martin’s calves to prevent him from kicking while the officers attempted to handcuff Martin. After Martin was secured, Officers Zimmerman and Tieber continued to hold Martin in a face-down position.  Thereafter, the officers heard Martin make a gurgling sound and when they rolled Martin over he was unresponsive and exhibited no signs of life. Martin was pronounced dead at 3:06 a.m.

In considering whether the officers were entitled to qualified immunity the Court analyzed whether there was a constitutional violation and whether the law was clearly established as of the date of incident. With respect to whether there was a constitutional violation, the Court stated that a jury could find that the officers’ conduct was unreasonable. The Court explained the following: “The officers used their weight to compress Martin, struck his head and body multiple times, restrained his neck or chin, and placed him in a torso lock. These tactics were not justified by Martin’s possible crime, the threat he posed to anyone’s safety, or his resistance.” Accordingly, the Court stated that the amount of force used was constitutionally excessive.

The Court next considered whether the law was clearly established as of August 16, 2007. In this regard, the Court pronounced that in light of Court’s prior cases and the police department’s own policies, “[a] reasonable officer should have known that subduing an unarmed, minimally dangerous, and mentally unstable individual with compressive body weight, head and body strikes, neck or chin restraints, and torso locks would violate that person’s clearly established right to be free from excessive force.” For these reasons, the Court denied qualified immunity for the officers.

Burch v. City of New York, 2016 U.S. Dist. LEXIS 195623 (E.D.N.Y. Apr. 22, 2016).

Stanley Streeter was behaving unusually and was voluntarily taken to Richmond University Medical Center (RUMC) and then to a psychiatric facility. While at this facility, EMTs were assigned to transport Streeter back to RUMC because Streeter had a highly-elevated blood pressure. During transport, Streeter exited the ambulance, and NYPD officers were called to assist the EMTs with an emotionally disturbed person. Under the plaintiff’s version of the facts, when NYPD officers arrived Streeter was already on the ground and was successfully handcuffed in less than one minute. According to plaintiff, Streeter was then forcefully restrained face down in the dirt for a prolonged period of time and Streeter struggled to breathe. Streeter was being held down by a male officer who had a knee on Streeter’s back and a female officer who had a knee on Streeter’s neck. During this time, Streeter was handcuffed and held face-down. While Streeter was on the ground, a non-party witness heard Streeter say “I can’t breathe” two to three times. Streeter struggled for five minutes after being handcuffed and then stopped moving and screaming for 20 minutes before Emergency Services Unit officers arrived. After ESU officers arrived and Streeter was turned over, Streeter was already in cardiac arrest.

In its analysis, the Court stated that the officers would not be entitled to qualified immunity. The Court explained that, “[a] reasonable officer would have known that forcefully restraining an EDP suffering from dangerously high blood pressure facedown and chestdown for 30 minutes (with two officers on top of the individual, kneeling on his neck and back), while pressing his face into the dirt so forcefully that dirt became lodged in his teeth, throat, and eyeballs and caused his nose to bleed, all while ignoring his pleas that he could not breathe did not comport with the constitution.”

The Court also addressed plaintiff’s claim that officers failed to intervene. The Court explained that police officers have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other officers. The Court stated that plaintiff raised a triable fact issue as to whether the officers failed to intervene in order to protect infringement on Streeter’s constitutional rights. The Court highlighted that plaintiff and defendants had presented vigorously contested facts regarding the altercation between Streeter and the officers. Summary judgment was therefore inappropriate and the failure to intervene claim would not be dismissed.

Dyksma v. Pierson, 2018 U.S. Dist. LEXIS 117503 (M.D. Ga. July 16, 2018)

Nicholas Dyksma died after Sheriff’s Deputy Tommy Pierson pinned him to the pavement and used his knee to apply compression to Dyksma’s neck. Pierson applied the compression once for a period of twenty seconds as Dyksma was being handcuffed and searched, and then applied the compression again for a period of seventeen seconds after Dyksma was handcuffed, physically incapacitated and no longer resisting. Officers had originally received a call of a person (Dyksma) slumped over the wheel of a pickup truck at a Circle K. When officers arrived Dyksma took off and led the responding officers in a pursuit, which ultimately ended with Dyksma being forced off the road. Dyksma was forcibly removed from the vehicle and placed face down on the shoulder of the road. While another deputy was handcuffing Dyksma, Deputy Pierson restrained Dyksma’s upper body by placing his knee on Dyksma’s neck for approximately twenty seconds. After Dyksma had been handcuffed and searched, Pierson and another deputy put Dyksma back in a prone position and Pierson again used his knee to press Dyksma’s neck into the ground for another seventeen seconds. After these events, Dyksma was transported to a medical center but could not be revived.

In its analysis, the Court considered whether Deputy Pierson was entitled to qualified immunity from suit. The Court determined that it was not clear that the first twenty seconds of neck compression—while Dyksma was being handcuffed and searched—constituted excessive force under clearly established law. However, the Court then stated, “[b]y August 2015, it had long been clearly established that after a suspect is arrested, handcuffed, and completely secured, and after the risks of danger and flight have passed, significant force that is ‘wholly unnecessary to any legitimate law enforcement purpose’ is excessive.” Therefore, the Court found “that on the date of Nicholas’s death, it was beyond debate that a law enforcement officer who jams his knee onto the neck of a helpless and incapacitated arrestee violates that arrestee’s Fourth Amendment right to be free from excessive force.”  Consequently, Pierson was denied qualified immunity.

The Court also considered whether the other officers who were present at the scene were entitled to qualified immunity on Plaintiff’s claim for failure to intervene. The Court explained that although Pierson’s second neck compression of seventeen seconds constituted excessive force, it was administered without warning. The Court found that given the limited duration of Pierson’s actions and the unforeseeability of Pierson reapplying his knee to Dyksma’s neck, it did not violate clearly established law when the other officers did not intervene. Thus, the other officers were entitled to qualified immunity on this claim.




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