Monthly Law Journal Article: Restraint and Asphyxia: Part One -- Restraint Ties, 2008 (12) AELE Mo. L. J. 101
     Monthly Law Journal Article: Restraint Ties and Asphyxia, Part Two - Compressional Asphyxia, 2009 (1) AELE Mo. L. J. 101

     An arrestee who appeared intoxicated actively resisted officers both during the process of being arrested and when taken into jail. He was handcuffed and pepper sprayed. Then, at the jail, when he continued to resist, he was held down and a Taser was applied to him three times in the stun mode. He was held face down, ceased breathing, and was taken to a hospital where he died. A medical expert for the plaintiff expressed the opinion that his cause of death was traumatic asphyxia due to compression of his neck and back while being restrained. A federal appeals court ruled that the defendant officers were entitled to qualified immunity when there was insufficient evidence to support the strangulation theory, since only the expert's conclusory opinion supported it. That opinion was contradicted by other evidence, including the testimony of all the officers and two EMTs. Burdine v. Sandusky County, Ohio, #12-3672, 2013 U.S. App. Lexis 7691, 2013 Fed. App. 376N, 2013 WL 1606906 (Unpub. 6th Cir.).
     Police encountered a running naked man speaking nonsensically. When they tried to subdue him, he bit an officer and a physical altercation ensued in which an officer fell on top of both the suspect and a fellow officer. One officer folded his legs around the suspect and gripped his chin with his arm, and a third officer kneeled on the suspect's calves. One officer allegedly wrapped his arm around the suspect's neck. Two officers allegedly continued to hold the man face down after he was secured. The man became unresponsive and summoned paramedics could not revive him, so he died. The coroner concluded the death was from an acute psychotic episode with excited delirium due to LSD intoxication and cardiopulmonary arrest. The pathologist who carried out the autopsy noted injuries consistent with asphyxia, and the plaintiffs in an excessive force lawsuit presented an opinion that asphyxia caused the death. The police department had both a use of force policy and a "positional asphyxia" policy warning that those who are acting psychotic due to drugs, alcohol or mental illness can be particularly susceptible to death. Two officers stated that they had not considered that policy. The officers were properly denied qualified immunity. Martin v. City of Broadview Heights, #11-4039, 2013 U.S. App. Lexis 7094, 2013 Fed. App. 0101P (6th Cir.).
     A motorist who was high on methamphetamines was driving the wrong way down a highway. He pulled over when stopped by an officer, but ignored orders to exit a vehicle. After a scuffle with the state highway patrolman, he started to run away, climbing up on top of a tractor-trailer's sleeper cabin and refusing to obey orders to come down even after pepper spray was used on him. Officers climbed up and forced him down and he started running away again. After a warning, an X26 Taser was fired at him in the dart mode, causing him to fall down, but he kept trying to crawl away and refused to comply with orders to put his hands behind his head. Three additional activations of the Taser in the dart mode finally allowed the officers to handcuff him. He continued to resist, although face down, handcuffed, ankle-shackled and restrained by at least four officers. He stopped breathing and died. An expert witness for the plaintiffs in an excessive force lawsuit over the incident said that the cause of death was positional asphyxia. A federal appeals court upheld a denial of qualified immunity to the defendant officers on excessive force claims. The court stated that a reasonable fact-finder could conclude that officers' use of body compression as a means of restraint was unreasonable and unjustified by any threat of harm or escape when the arrestee was handcuffed and shackled, in a prone position, and surrounded by numerous officers. At the same time, the appeals court ruled that it had not been clearly established at the time of the incident (February 2008) that the use of four, five-second Taser cycles in the dart mode within a span of about two minutes against a suspect who appeared unarmed, fell to the ground following the first use of the Taser and then presented no real threat of escape and was surrounded by three officers was objectively unreasonable. The officers were therefore entitled to qualified immunity on claims arising out of the use of the Taser. Abston v. City of Merced, #11-16500, 2013 U.S. App. Lexis 2227 (Unpub. 9th Cir.).
     Deputies arrested a woman who responded to handcuffing by attacking one of them, forcing him to the ground, seizing his flashlight, and pummeling him about the head and shoulders. When she continued to resist efforts to place her in the deputies' vehicle, they placed her in four-point restraints, linking leg restraints to handcuffs with an additional set of handcuffs. She allegedly rode facedown in the back of the car on the way to the jail, became quiet, and may have stopped breathing. At the jail, she was unresponsive and without a pulse, and attempts to revive her failed. An autopsy diagnosed fatal hypothermia with the exact cause of death uncertain. The woman was obese and hypertensive, but neither drugs nor excessive alcohol were in her system. A federal appeals court rejected the argument that the deputies used excessive force to subdue the woman, and stated that it assumed the cause of death was positional asphyxia. The court found that the plaintiff failed to show that the use of the restraints was unnecessary, excessively disproportional to the resistance they faced, or objectively unreasonable in terms of its perils to the arrestee, who exhibited none of the additional contributing or associated factors that cast doubt on the propriety of such restraints in some cases, such as evidence of drug abuse or drug-induced psychosis. The appeals court also rejected a claim that the deputies acted with deliberate indifference, failing to adequately monitor the arrestee on the way to the jail. Hill v. Carroll County, 587 F.3d 230 (5th Cir. 2009).
     An officer responding to a call about an altercation allegedly handcuffed a participant and left him on his stomach face down against the floor while questioning others present, resulting in the man dying from positional asphyxia. A federal appeals court found that there was no evidence showing that the death resulted from inadequate training policies of the city that employed the officer. Claims against the officer in his individual capacity, however, could proceed. Sanders-Burns v. Plano, #08-40459, 2009 U.S. App. Lexis 17661 (5th Cir.).
     Officers were entitled to summary judgment in a federal civil rights lawsuit claiming they used excessive force resulting in the death of a suspect during an altercation. The officers encountered the man while to reports of numerous hang-up calls to 911 coming from the area. The man, who was running and screaming, said "help me help me," ran away from them, and appeared to have an object in both hands. The man ultimately collided his body with one of the officers, and was subjected to pepper spray as well as a Taser, but continued to resist. When the officers finally managed to get his hands behind him and handcuff him, he had labored breathing, and then stopped breathing altogether, and died. His estate claimed that he died from positional asphyxia, and that one of the officers sat on him, causing compression of his chest and inability to breathe. The court found that the officers acted in an objectively reasonable manner in attempting to subdue the decedent, who had been actively resisting them and creating a dangerous situation. Galvan v. City of San Antonio, Civil No. SA-07-CA-371, 2008 WL 5352945, 2008 U.S. Dist. Lexis 106894 (W.D. Tex.), Prior Order at 2008 U.S. Dist Lexis 26269
     Officers were on notice, based on prior cases finding "compression asphyxia," that keeping a person who was in a state of "excited delirium" restrained with his or her chest to the ground while applying pressure to the back and ignoring pleas that the subject could not breathe constituted excessive force under the Fourth Amendment. They were therefore not entitled to qualified immunity in a lawsuit alleging that they caused a man's death by restraint or positional asphyxiation by keeping him prone and handcuffed while in an agitated state, suffocating him under their weight. Arce v. Blackwell, No. 06-17302, 2008 U.S. App. Lexis 20162 (Unpub. 9th Cir.).
     Although a man suffering from delusions attacked a psychiatric hospital staff member, the defendants knew that restraining him face-down on the floor and putting pressure on a his back posed a substantial risk of asphyxiation. "Despite knowledge of this risk, defendants chose to restrain [the deceased] using these dangerous restraint techniques. Their actions were objectively unreasonable given the fact that [an] eyewitness testified that [the] defendants continued to restrain [him] in this dangerous position ..." He had been brought to the hospital for a mental health assessment by Sheriff's Department personnel who found him wandering the countryside. During the attempt to restrain him, he stopped breathing, never regained consciousness, and died. The appeals court rejected claims by certain defendants for qualified immunity in a federal civil rights lawsuit brought by the decedent's estate. Lanman v. Hinson, #06-2263, 2008 U.S. App. Lexis 12682, 2008 Fed App. 0212P (6th Cir.).
     Deputy sheriffs were not entitled to qualified immunity in a lawsuit alleging that they used excessive force in removing a morbidly obese man from a courtroom after he was found in contempt of court, causing him to die after several deputies allegedly placed themselves on his back while he was on the floor. Hostility by the deputies to the man could support a finding that they were trying to punish him at the time. Both Fourth Amendment and Eighth Amendment claims were reinstated. Appeals court also rules that removal of the decedent's mother to another courtroom via wheelchair was necessary and did not involve the use of excessive force. Richman v. Sheahan, No. 07-1487, 2008 U.S. App. Lexis 200 (7th Cir.).
     A reasonable officer would know that administering closed-fist punches and flashlight blows to the head, after an arrestee was handcuffed, and continuing to strike him after he had stopped resisting arrest -- and failing to place him in the proper position after hobbling him -- was excessive force. The officers were not entitled to qualified immunity. Sallenger v. Oakes, #05-3470, 2007 U.S. App. Lexis 436, 2007 WL 60422 (7th Cir.) [N/R]
     In a lawsuit over the death of a man weighing almost 350 pounds with PCP and cocaine in his bloodstream who allegedly struggled with police and resisted their attempts to arrest him outside a fast food restaurant, the plaintiffs claimed that the officers used excessive force, unnecessarily striking him with metal batons and causing him to suffer respiratory failure from positional asphyxia when they sat on him, after spraying a chemical irritant (pepper spray) in his face. The trial court found that the plaintiffs sufficiently stated a claim that the officers who apprehended him used excessive force against him, as the confrontation began simply because firefighters who encountered him perceived him as creating a "nuisance," which is "not the type of crime" permitting officers to use a greater use of force. It was disputed whether the decedent subsequently was resisting arrest, or was simply trying to position himself so that he could breathe. Additionally, the plaintiffs in the case alleged that the officers used pepper spray against the decedent after he was already face down and was being handcuffed, which the court stated, if true, could also constitute an excessive use of force. The officers were not entitled to qualified immunity because a reasonable officer might have known that engaging in the alleged acts violated the decedent's right to be free from excessive force. The court granted a motion to dismiss claims by the plaintiffs against the firefighters, who left the scene before some of the incidents that resulted in the decedent's death, and against police supervisors and a fire chief. It denied a motion to dismiss claims against the police officers involved in the incident. Jones v. City of Cincinnati, No. 1:04-CV-616, 2006 U.S. Dist. Lexis 75430, 2006 WL 2987820 (S.D. Ohio). [N/R]
     Police officers' use of a vascular neck restraint on an arrestee was not excessive force when the arrestee physically resisted being handcuffed, even though the arrestee died shortly thereafter from positional asphyxia. No evidence showed that the restraint was continued for any extended period, and one of the officers stated that the arrestee had attempted to reach for his gun. The neck restraint used was not considered deadly force. Griffith v. Coburn, No. 04-CV-728, 408 F. Supp. 2d 491 (W.D. Mich. 2005). [N/R]
     Town was not liable, on the basis of alleged inadequate training, for the death of a drug-intoxicated arrestee in the course of an arrest, allegedly through positional asphyxia. The court found that the town did not have information about the risks of a cocaine-induced excited delirium and the potential serious consequences of a prone restraint of such an arrestee, and therefore did not act with deliberate indifference in failing to train its officers concerning such circumstances. Watkins v. New Castle County, No. CIV.A. 03-791, 374 F. Supp.2d 379 (D. Del. 2005). [N/R]
     Parents of mentally ill man who died, allegedly of positional asphyxia, after being taken into custody by police officers, stated a claim for violation of his civil rights by asserting that the officers, who transported him to a hospital, handcuffed and hog-tied, in a face-down position, had noticed his irregular breathing, but failed to adjust his position at that time. Court also finds a possibly viable claim for disability discrimination under the Americans with Disabilities Act, 42 U.S.C. Sec. 12132, based on alleged failure to provide adequate training for officers in handling encounters with mentally ill persons. Arnold v. City of York, No. 4:CV-03-1352, 340 F. Supp. 2d 550 (M.D. Pa. 2004). [N/R]
     Michigan appeals court upholds jury award of $533,087.62 against police officer for asphyxiation death of cocaine-intoxicated man who threatened to kill the officer and his partner. While jury found the decedent to be 50% responsible for his own death, it did not clearly attribute his comparative negligence solely to his drug use, which would have barred liability. Smith v. Detroit, #247154, 2004 Mich. App. Lexis 3500 (Unpub. 2004). [2005 LR Feb]
     Federal appeals court upholds $900,000 jury award to family of adult non-verbal autistic man who died after officers seeking to restrain him allegedly continued to use pepper spray and to lay on top of his body after he was handcuffed, hobbled, and laying on his stomach on the ground, no longer resisting. Continued use of such force at that point, the court rules, violated clearly established law, and jury's award was not excessive. Champion v. Outlook Nashville, Inc., No. 03-5068, 380 F.3d 893 (6th Cir. 2004). [2004 LR Nov]
     County was properly held liable for death of arrestee subjected to "total appendage restraint procedure," when expert testimony indicated that he died of positional asphyxia, but jury's assessment of damages at $2 million was excessive when decedent had limited future financial prospects, and probably would have been sent back to prison, had he survived, for firing a gun at passing motorists in a busy intersection. Nelson v. County of Los Angeles, #B161431, 113 Cal. App. 4th 783, 6 Cal. Rptr. 3d 650 (Cal. App. 2003). [2004 LR Mar]
     Officers' alleged actions of pressing their weight onto the neck and torso of a mentally ill detainee as he lay handcuffed on the ground and begged for air, if true, constituted an excessive use of force for which the officers were not entitled to qualified immunity. Drummond v. City of Anaheim, No. 02-55320, 343 F. 3d 1052 (9th Cir. 2003). [2003 LR Dec]
     Use of hog-tie restraint against arrestee who had a head wound and had been sprayed with pepper spray, and was also allegedly compliant at the time of the restraint, was an excessive use of force, and officers were not entitled to qualified immunity from possible liability for arrestee's subsequent death from positional asphyxia. There was also evidence to show that county officers widely used hog-tie restraints but that no training in the use of such restraints was provided. Garrett v. Unified Government of Athens-Clarke County, 246 F. Supp. 2d 1262 (M.D. Ga. 2003). [2003 LR Jul]
     340:60 Federal appeals court rules that hog-tie restraints should not be used when it presents a significant risk to a suspect's health or well being because of diminished mental capacity, whether based on intoxication or a mental condition; officers were individually entitled to qualified immunity, but inadequate training claims against city could go forward in lawsuit over death of naked man who died after being restrained with hog-tie. Cruz v. City of Laramie, No. 99-8045, 99-8049, 99-8050, 239 F.3d 1183 (10th Cir. 2001).
     327:43 Appeals court upholds jury verdict in favor of police officers in lawsuit over alleged positional asphyxia in case where they used kneeling wristlock on disturbed man to take him into protective custody; use of courtroom demonstration of kneeling wristlock technique was properly admitted into evidence. Jones v. Ralls, #98-3514, 187 F.3d 848 (8th Cir. 1999).
     310:156 Plaintiff in excessive force case against police involving "positional asphyxia" could not compel deposition of defendants' lawyer regarding his personal knowledge of the dangers of "positional asphyxia" when plaintiff failed to show that information was unobtainable through other means, relevant and non-privileged, and crucial to preparation of the case. Jones v. Bd. of Police Com'rs of Kansas City, Mo., 176 F.R.D. 625 (W.D. Mo. 1997).
     311:171 Trial court, relying on new study, concludes that "positional asphyxia" was not cause of arrestee's death, questions entire scientific basis for "positional asphyxia." Price v. County of San Diego, 990 F.Supp. 1230 (S.D. Cal. 1998). Editor's Note: The study relied on by the trial court in the decision above has been published as JL Clausen, TC Chan, T Neuman, & GM Vilke, "Restraint Position and Positional Asphyxia" in Vol. 30 Annals of Emergency Medicine, p. 578-586 (Nov. 1997).
     289:12 Federal court rules that some documents concerning county's process of formulating policy on "hogtying" of suspects are discoverable in lawsuit brought by surviving family of arrestee who died after allegedly being hogtied Price v. County of San Diego, 165 F.R.D. 614 (SDCa 1996).
     296:115 Estate of man who died from asphyxia after being placed face down while hog-tied receives $805,000 settlement from city on inadequate supervision and training lawsuit Kinneer v. Gall, U.S. Dist. Ct., SD Ohio, No C2-95-504, Sept 6, 1996, 40 ATLA L.Rptr. 132 (May 1997).
     {N/R} Officers entitled to qualified immunity in lawsuit brought by estate of arrestee who allegedly died of positional asphyxiation Cottrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996).
     {N/R} Officers entitled to qualified immunity and plaintiff failed to establish deprivation of constitutional right pursuant to municipal policy and custom in case where detainee allegedly denied of positional asphyxiation after officers attempted to remove him from hotel room he refused to vacate Phillips v. City of Milwaukee, 928 F.Supp. 817 (E.D. Wis 1996).
     {N/R} Trial court judge denies city's motion for summary judgment in federal civil rights lawsuit brought by estate of intoxicated detainee who allegedly died of positional asphyxiation Animashaun v. Chicago Police, 1995 U.S. Dist Lexis 2074 (N.D.Ill. 1995), (motion for reconsideration denied), and 1994 U.S. Dist Lexis 17339 (N.D.Ill. 1994), (city's initial motion for summary judgment denied).
     Editor's Note: Also see, Owens v. City of Atlanta, 780 F2d 1564 (11th Cir. 1986), ("Stretch" position on unruly arrestees upheld, despite death from asphyxiation); Vizbaras v. Prieber, 761 F2d 1013 (4th Cir. 1985), (No liability for death of arrestee who died of asphyxiation after being cradle cuffed).