Louisiana Personal Injury Lawyer Blog
In the previous post, we looked at the background and majority opinion in Khan v. Normand, et al, which involved the tragic death of Nayeem Khan after he was hog-tied by deputies of the Jefferson Parish Sheriff’s Office. This post will delve into the dissent written by Judge Garza.
Judge Garza wastes precious little time in strenuously objecting to the majority’s conclusion. He writes:
The district court in this case concluded that the facts surrounding Khan’s death fell somewhere in between Gutierrez and Hill, but that Hill ultimately controlled. The majority has taken a different route to the same conclusion, opining that Gutierrez was a narrow holding that cannot be extended to the facts of this case, and that our decision in Hill makes it difficult to say that the law was clearly established.
Judge Garza states four reasons that he believes the majority’s ruling was flawed.
First, he argues that the majority failed to adequately distinguish this case from Hill because, unlike Ms. Loggins, Mr. Khan was visibly upset and in some type of psychotic episode at the time the restraint was applied to him. This is a major point of divergence for the two cases in Judge Garza’s opinion, yet the majority failed to adequately way this point.
Second, Judge Garza posits that the majority placed too much weight on the Gutierrez court’s emphasis of the San Antonio Police Department’s failure to adequately monitor Mr. Gutierrez’s condition. Unlike Mr. Gutierrez, Mr. Khan was supervised continually during this episode. However, Judge Garza says that other factors must be weighed in the decision about whether or not law enforcement actions were appropriate.
Third, Judge Garza argues that the majority inappropriately relied on a scientific study regarding alleged dangers posed by four-point restraints that was not placed in the record for this case, and therefore should have no bearing on the outcome of the case.
Fourth, Judge Garza points out that this was a case where law enforcement was faced with a person who was clearly in some type of psychotic state.
Finally, Judge Garza faults the majority for needlessly using the fact the Mr. Khan and Mr. Gutierrez were under the influence of two different narcotics (methamphetamine and cocaine respectively) as a distinguishing point between the two cases. Judge Garza argues that what specific drug Mr. Khan was on is irrelevant; rather the fact that Mr. Khan was under the influence of a narcotic was the important factor.
Weighing all of these factors leads Judge Garza to state that “although the Gutierrez case was ‘very limited’, it applies squarely to the facts of this case.” He then determines that this means the 5th Circuit recognized a clearly established rule that the use of four-point restraints on one who is a “drug-affected person in a state of excited delirium” may present a risk of serious bodily injury or death and can therefore constitute excessive force.
Having dealt with the “clearly established right” prong of the test for qualified immunity, Judge Garza moves to the other prong which requires that the plaintiff show that a reasonable officer would know that his actions violate a clearly established right. Note that the majority opinion did not address this prong at all as they concluded that there was no clearly established right violated in this case.
Judge Garza argues that the lower court improperly asserted itself as the decider of facts in this case by summarily dismissing expert testimony that the specifics of this case meant the use of a four-point restraint on Mr. Khan posed an added danger and amounted to the use of deadly force. He further states that the importance of this testimony should have been weighed by a jury and not by a judge because in the 5th Circuit, “whether a particular use of force is ‘deadly force’ is a question of fact, not one of law.”
Judge Garza also regarded the decision by the officers to take Mr. Khan outside of the store, where he claimed people were trying to kill him, as an action that a jury could reasonably conclude was unreasonable.
These two issues are enough for Judge Garza to conclude that the plaintiffs raised genuine questions of material fact for both prongs of the qualified immunity test.
Judge Garza goes on to recommend that the 5th Circuit prohibit the use of four-point restraints in all cases where a person is in a visible state of diminished capacity because, “the law should … take account of the fact that these individuals may be uniquely susceptible to harm from a four-point restraint.” Establishing such a rule would make future cases much easier to resolve, and would add stability and coherence to the law surrounding such cases.
In the end, Judge Garza finally concludes that he felt the Khans had raised genuine issues of material facts, and that he disagrees with the majority’s opinion stating that “Nayeem Khan’s family brought claims that, under this court’s clearly established precedent, should have survived summary judgment.”
If you or anyone you know has suffered some type of injury or harm at the hands of a government official, please contact the Berniard Law Firm. Legal help can be just a phone call away.