On July 18, 2023, the U.S. Court of Appeals for the Fifth Circuit reversed a district court’s grant of summary judgment to jailers who tasered a detainee suffering an epileptic seizure at the Pasadena city lockup in suburban Houston. Jamal Ali Shaw, 32, died at a hospital on March 29, 2019, one day after his arrest on suspicion of public intoxication.

Less than 10 minutes after Shaw was booked into the jail, other detainees sharing his holding cell reported he was having a seizure. Police Service Officers (PSOs) Joanna Marroquin and Ryan Whitehead cleared the cell except for Shaw, who lay on the floor, convulsing and foaming at the mouth. When they reached for him, Shaw allegedly bit them. Whitehead attempted to straddle and pin Shaw, while Marroquin deployed her Taser several times “to force compliance through pain.” Shaw managed to stand, but Whitehead tasered him again, causing him to fall face-first onto the concrete floor. Shaw thrashed as Whitehead continued to taser him. Two other jailers, PSO Darlene McCain and PPD Officer Martin Aguirre, joined the effort to restrain Shaw, kneeing his back.

An ambulance arrived, but Emergency Medical Technicians (EMTs) were not permitted to enter the cell. Instead, Aguirre handcuffed Shaw and, with the other three jailers, stood him up. When he fell once more, they fastened Shaw to a restraint chair and rolled him to the booking area. There EMTs were allowed to give him two injections to calm him. He remained restrained in the chair for approximately 17 minutes, unable to answer questions, calling for his mother and crying, “Help me!” When he was eventually put in an ambulance, he suffered cardiac arrest and died at a hospital the following day.

Shamarian Austin, administrator of Shaw’s estate, filed suit in federal court for the Southern District of Texas under 42 U.S.C. § 1983, accusing the jailers of using excessive force and denying medical treatment. The district court dismissed additional claims for bystander and municipal liability, granting summary judgment on the other claims to Defendants, finding them entitled to qualified immunity (QI). Plaintiffs appealed.

The Fifth Circuit began by recalling that in claims of excessive force, courts determine if the force used was “reasonable” by weighing the factors set out in Kingsley v. Hendrickson, 576 U.S. 389 (2015): the need for force v. the amount used; the extent of injury inflicted; any effort made “to temper or limit the amount of force”; “the severity of the security problem”; “the threat reasonably perceived” by officers; and “whether the plaintiff was actively resisting.”

In this case, the district court had sustained Defendants’ QI because Plaintiffs didn’t identify any case law establishing it was unconstitutional repeatedly to taser someone experiencing a medical seizure. Yet the Court noted a litany of cases establishing that it is unconstitutional to taser a subdued suspect who is not resisting and not trying to flee. Consequently, the district court was wrong, the Court said; the law was clearly established.

The Court also recalled that in Timpa v. Dillard, 20 F.4th 1020 (5th Cir. 2021), it reversed a grant of QI to officers who held a man in a prone position for 15 minutes before he died. There the Court reasoned that the officers’ training put them on notice that the decedent might be prone to asphyxiation and “struggling to breathe, not resisting arrest.” In Shaw’s case, the jailers were trained to respond to seizure by placing the person on his side, putting something under his head to prevent self-harm, “and obviously call an ambulance,” the Court said—not repeatedly tasering him. Further, officers are typically “taught to avoid shooting Tasers at the chest because of the significantly increased risk of causing a heart attack,” the Court noted. They also know not to restrain anyone suffering an epileptic seizure. As the Fifth Circuit opined, “nothing prevented the officers from deescalating, leaving the cell, and waiting for [EMTs] to arrive”—there was no security threat, since Shaw was alone in a cell and not “actively resisting”—so a jury could find the force applied was excessive and unreasonable.

As to denial of medical care, the Court said that intentional denial or even delay is deliberate indifference, as held in Estelle v. Gamble, 429 U.S. 97 (1976). Citing Sims v. Griffin, 35 F.4th 945 (5th Cir. 2022), the Court added that jailers show deliberate indifference by “a wanton disregard for any serious medical needs.” Thus the Court found a “genuine dispute of material fact exists as to whether the officers intentionally treated Shaw incorrectly in responding to his seizure and whether the officers’ actions constituted a harmful delay in Shaw’s accessing emergency medical care.”

As to the bystander liability claim, the district court had found Shaw’s rights were not violated, so no officer had a duty to intervene. But the Court said liability arises if a jailer “(1) knew a fellow officer was violating an individual’s constitutional rights, (2) was present at the scene of the constitutional violation, (3) had a reasonable opportunity to prevent harm but nevertheless, (4) chose not to act,” citing Est. of Joseph v. Bartlett, 981 F.3d 319 (5th Cir. 2020). Therefore a jury could conclude that Shaw’s constitutional rights were violated and one or more of the officers present had opportunity to prevent harm but chose not to act.

Thus only denial of municipal liability was affirmed, while the rest of the district court’s order was reversed and the case remanded. Plaintiffs are represented by attorneys from the Law Offices of Dean Malone, P.C., and the Law Office of Bruce K. Thomas, both in Dallas. The case has returned to the district court, and PLN will update developments as they are available. See: Austin v. City of Pasadena, 74 F.4th 312 (5th Cir. 2023); and USDC (S.D. Tex.), Case No. 4:21-cv-00774.  

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