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No Qualified Immunity for Cops Who Suffocated Suspect

By Robyn Hagan Cain on December 12, 2012 | Last updated on March 21, 2019

The Tenth Circuit Court of Appeals ruled this week it did not have jurisdiction to consider whether cops who allegedly suffocated a suspect were entitled to qualified immunity.

In 2009, two 911 callers reported Richard Monarque's odd behavior. Monarque was reportedly running around the street, creating a ruckus. Rio Rancho Police Officers Justin Garcia and Leroy Maldonado arrived on the scene first and observed Monarque sweating profusely and hallucinating that dogs were attacking him. Sergeant Monte Jones arrived shortly thereafter.

In the process of restraining Monarque, a witness indicated that two of the officers placed Monarque face down on his belly, and "got on top of him." Garcia restrained Monarque's legs and Maldonado restrained his upper body. Monarque passed out two to three minutes later. Officers Garcia and Maldonado initiated CPR, but Monarque was pronounced dead at the hospital.

The cause of death was positional asphyxiation.

Monarque's sister, Denise, sued the cops for civil rights violations on behalf of her deceased brother's estate. The defendants moved for summary judgment based on qualified immunity. The district court denied qualified immunity, concluding that there were issues of fact for the jury as to whether some defendants used excessive force or improper restraint resulting in Monarque's death.

An appellate court lacks jurisdiction to review a district court order denying qualified immunity based on a genuine issue of disputed material fact. The district court's summary judgment order in this case was based on just such a factual dispute.

Here, the cops conceded that "officers cannot kneel or sit on a subject's 'upper back as he lies on his stomach because it creates a significant risk of asphyxiation and death." Then, they attempted to distinguish the facts in Monarque's case and argue that the district court should have considered their community caretaking function when determining reasonableness.

Their arguments only reinforced the district court's finding that there were issues of fact for a jury to decide, according to the Tenth Circuit Court of Appeals. Under these facts -- even considering the community caretaker function of the officers -- a reasonable jury could find the officers' actions unconstitutional.

Because the district court's order was based on this factual dispute, the Tenth Circuit held that it lacked jurisdiction over the appeal.

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