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‘I can’t breathe.’ Fresno police, sheriff’s deputies win immunity in 2017 restraint death

Law enforcement officers are entitled to qualified immunity, the court noted, unless the conduct in question was already “clearly established” as unconstitutional at the time of the incident.
Rob Parsons
Law enforcement officers are entitled to qualified immunity, the court noted, unless the conduct in question was already “clearly established” as unconstitutional at the time of the incident.

A federal appeals court sided with Fresno police and sheriff’s deputies this week, concluding the emergency responders were immune from liability for the 2017 restraint-related death of a 41-year-old man who lost consciousness after telling the officers he could not breathe.

In an opinion handed down Monday, the U.S. Court of Appeals for the 9th Circuit acknowledged a jury could have sided against the police and also criticized a paramedic’s conduct but ultimately concluded that the emergency responders connected to the 2017 death of Joseph Perez were entitled to “qualified immunity,” a protection created by the U.S. Supreme Court in 1982 that generally shields government workers from liability.

Law enforcement officers are entitled to qualified immunity, the court noted, unless the conduct in question was already “clearly established” as unconstitutional at the time of the incident.

“At the time of Perez’s death, the law did not clearly establish, nor was it otherwise obvious, that the officers’ actions, directed by medical personnel, would violate Perez’s constitutional rights,” the court concluded in the opinion written by Judge Danielle J. Forrest.

However, the appellate court’s opinion was not unanimous.

Judge Sidney R. Thomas sided with the majority on most of the case, including the question of the paramedic’s immunity, but sharply disagreed that the controversial protection should extend to the police and sheriff’s deputies at the scene.

“Extensive federal case law, departmental guidance, and common sense gave the officers fair warning that applying continuous force to the back of a prone person who claims he cannot breathe is constitutionally excessive,” Thomas wrote in his partial dissent.

It wasn’t immediately clear whether the family planned further legal action. Thomas Seabaugh, the attorney who argued the family’s appeal, could not immediately be reached for comment.

In previous news media interviews, family members have described Perez as a hard-working air conditioning repairman and a married father of two children.

While Perez’s case happened about three years before the 2020 killing of George Floyd at the hands of police, the similarities fueled renewed scrutiny in the Fresno case–and national media attentionin 2021 after the family’s attorneys released police body camera footage of the incident.

A roadside memorial honors the memory of Joseph Perez, a 41-year-old man who died after he was restrained by police in 2017. Credit: Rob Parsons/Fresnoland

‘I can’t breathe’

On May 17, 2017, Fresno County sheriff’s deputies received a report of a man–later identified as Perez–erratically screaming and running across busy city streets. Coincidentally, around the same time, Fresno police officers spotted Perez, who they said appeared to be high and was waving his arms and yelling.

Police said they detained Perez for his own safety near the busy intersection at Palm and Santa Fe Avenues. Police and sheriff’s deputies planned to have Perez evaluated by an ambulance crew for a possible psychiatric detention but said Perez became combative and refused to sit back down.

“In response, several of the officers took Perez to the ground to prevent him from running into traffic,” the court said. “While on the ground, one officer struck Perez’s left side three times with his knee and then applied a wrist lock.”

During a subsequent struggle, Perez–who was already in handcuffs–wound up face down on the pavement, where he hit his head numerous times, causing several bloody injuries. Officers applied a “RIPP restraint” to Perez’s feet and looped that restraint to his handcuffs, a move the family’s attorneys have described as a “hogtie.”

“The officers unlooped the restraint from Perez’s handcuffs when EMS arrived—approximately thirty seconds to a minute after they applied this restraint,” Forrest wrote.

An American Ambulance paramedic retrieved a backboard and said he wanted to attach it to Perez’s back while he was on the ground so he could be flipped over and taken away.

“As this was happening, Perez yelled that he could not breathe.”

The paramedic “nevertheless told one of the officers to sit on the backboard,” the court wrote. “The officer complied and sat on the board for one minute and thirteen seconds while other officers applied pressure and worked with (the paramedic) to secure the backboard.”

It took approximately two more minutes before they flipped Perez over and eventually discovered he no longer had a pulse. He was pronounced dead at the hospital a short time later.

“While the impact of these actions is heart-rending, and (the paramedic’s) conduct may have fallen well short of any reasonable standard of care,” the court wrote, “the record establishes that he was trying to render medical aid to Perez.”

Cause of death: Homicide by compression asphyxia

A coroner’s report concluded Perez’s death was a homicide–a death at the hands of another person–and listed the cause of death as “compression asphyxia during restraint with methamphetamine toxicity as another significant contributor.”

The court also noted the coroner’s conclusion that Perez’s methamphetamine intoxication was “10 times” above a typical lethal dose.

The Fresno County District Attorney’s Office, Sheriff’s Office, Fresno Police Department and Fresno’s Office of Independent Review all concluded the law enforcement officers’ actions were justified and within policy.

In a brief statement issued Monday, the Fresno County Sheriff’s Office applauded the appeals court ruling.

“The Fresno County Sheriff’s Office is pleased the appellate court correctly ruled there was no liability on the part of Sheriff’s deputies in this case. Our office is committed to extensive training for its deputies to assure encounters with all individuals are conducted in a manner that ensures safety of the public and our deputies.”

Attorneys representing Fresno police and American Ambulance did not immediately respond to requests for comment.

Perez’s family sued the Fresno Police Department, Fresno County Sheriff’s Office, and American Ambulance, alleging wrongful death and excessive force. However, a federal court threw the case out on the grounds that the officers and paramedics were entitled to qualified immunity but noted a jury could have found the officers violated Perez’s constitutional rights.

“The officers do not dispute the district court’s conclusion that a reasonable jury could find that they violated the Fourth and Fourteenth Amendments by applying pressure to the backboard while Perez was in a prone position and thereafter ignoring his statement that he could not breathe,” Forrest wrote.

Appeals court split on question of qualified immunity for police

In arguing against immunity claims, the family’s attorneys cited a 2003 case, Drummond vs. Anaheim, in which police officers were denied immunity after they tackled and restrained a handcuffed man face down on the ground.

However, the appeals court said the cases are not the same, at least partly because an American Ambulance paramedic at the scene in Fresno instructed one of the officers to sit on top of the backboard on Perez’s back.

“Indeed, all the officers involved testified that they defer to medical personnel that respond to the scene of an emergency on medically-related matters,” the court wrote. “Nothing in Drummond clearly establishes that the officers were required to second guess the paramedics in their effort to provide medical care.”

The court also noted that police began restraining Perez on the ground before the paramedics arrived but said the family’s case only sought damages for the restraint ordered by the ambulance worker.

“Because the law enforcement officers’ actions that Plaintiffs contend led to Perez asphyxiating were taken at the direction of a medical professional who was trying to provide medical care,” Forrest concluded, “both the officers and the paramedic are entitled to qualified immunity.”

But Thomas disagreed.

“Law enforcement in Fresno received specific guidance warning of the risks of prone restraints and positional asphyxia,” Thomas wrote, “which Officers seem to have forgotten or ignored.

“Nevertheless,” Thomas continued, “the majority purports to distinguish this case based on the arrival of a paramedic on the scene, approximately 10 minutes into the prone restraint. This is a hollow distinction that turns improperly on unresolved questions of fact.”

Thomas also said the court “impermissibly” resolved disputed questions of fact in favor of the police and against Perez. “The Officers’ argument that their conduct was nonetheless reasonable requires us to decide factual questions that should be resolved by a jury.”

This article first appeared on Fresnoland and is republished here under a Creative Commons license.