Gutierrez v. City of San Antonio

• Decision Date: 14 April 1998
• Docket Number: No. 97-50082,97-50082
• Citation: 139 F.3d 441
• Parties: 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, v. 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.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 441

139 F.3d 441

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, v. 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.

No. 97-50082.

United States Court of Appeals Fifth Circuit.

April 14, 1998.

Jesse R. Castillo, Castillo & Nieto, San Antonio, TX, for Plaintiffs-Appellees.

Dawn Louise Carmody, San Antonio, TX, for Walters.

Charles Straith Frigerio, Hector X. Saenz, San Antonio, TX, for Solis.

Appeal from the United States District Court for the Western District of Texas.

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 defendant police officers, Lawrence Walters, Jr. and Robert Solis (the "officers"), for allegedly depriving him of his 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 from 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 Solis 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 approximately 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; the officers checked, but found no bullet wounds on Gutierrez or nearby persons with guns. The officers did 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 police 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 ambulance ("EMS"), allegedly for a possible toxic ingestion overdose. While waiting for the EMS to arrive, Gutierrez sat calmly with his back against a rear 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, Walters told EMS Technicians Ernest Lavin and Michelle Cevallos that 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 transport Gutierrez to the hospital. Walters then asked Lavin whether Gutierrez could be safely transported in a patrol car, to which Lavin replied that Gutierrez 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 patrol 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 hospital 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 time, Gutierrez was face down on the seat, a position that allegedly restricted the amount of oxygen that could reach his heart and 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 Gutierrez 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 completion of the autopsy report on Rene Gutierrez, this office discovered that when the deceased was transported in the San Antonio Police Department unit, that he was placed on the back seat, face down, his hands secured 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 Gutierrez was placed, can produce a relative hypoxia 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 claim 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 tort law claims. Solis filed a motion to dismiss or, in the alternative, for summary judgment, based on a qualified immunity defense. Walters also filed a summary judgment motion arguing the same defense.

In response to these motions, Gutierrez introduced three pieces of evidence into the summary judgment record suggesting hog-tying 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 November 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 Update; and (3) a memo issued by SAPD Captain Benavides ten days after the death of Gutierrez "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 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." FED. 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. See Celotex v. Catrett, 477 U.S. 317, 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. See 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...