                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                     February 12, 2007
                    UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                 TENTH CIRCUIT                          Clerk of Court



 RICHARD GIANNETTI, as personal
 representative of the Estate of M ary
 Giannetti, deceased,

               Plaintiff-Appellant/
               Cross-Appellee,
          v.                                        Nos. 06-6085, 06-6094
                                                      (W .D. Oklahoma)
 CITY OF STILLW ATER, a municipal                 (D.C. No. 04-CV-926-BA)
 corporation and/or political
 subdivision; NO RM AN M cNICK LE,
 individually and in his official
 capacity as Chief of Police for City of
 Stillwater; LINDELL M ILLER,
 SCOTT W HITLEY, and BRUCE
 M CDOUGAL, individually and in
 their official capacity,

               Defendants-Appellees/
               Cross-Appellants.




                            OR D ER AND JUDGM ENT *




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Before H E N RY and BR ISC OE, Circuit Judges, and R OBIN SO N, District
Judge. **




      This appeal stems from the tragic events of M ay 1, 2003, which resulted in

M ary Giannetti’s untimely death. M s. Giannetti died after a struggle with several

officers in the City of Stillwater municipal jail, where the officers restrained her

after they arrested her for eluding the police, a misdemeanor. The struggle

ensued when she violently refused to put on a jail jumpsuit. M r. Giannetti, M s.

Giannetti’s personal representative and also her widower, sued the City and the

involved officers, alleging state law claims of negligence and federal claims of

excessive force and inadequate training under 28 U.S.C. § 1983. 1 The district

court granted summary judgment to the defendants, finding that the officers did

not use an unreasonable quantum of force. For the reasons below, we affirm.

                                 I. BACKGROUND

      Although the Stillwater municipal jail used audio and video recording

equipment to record the encounter, the events that unfolded in this matter are less

clear than optimal. The audiotape is of such poor quality so as to be useless; the



      **
         The H onorable Julie A. Robinson, U.S. District Judge, District of K ansas,
sitting by designation.
      1
         The officers did not bring a summary judgment motion on the state law
claims, over w hich the district court exercised supplemental jurisdiction. Before
the district court, the parties stipulated to a dismissal of the state law claims. In
this appeal, M r. Giannetti does not preserve the failure to train claim.

                                          -2-
video has an important gap where critical facts occur. In addition, the camera’s

angle fails to portray the most relevant view. As such, we are confined to the

officers’ characterizations of the events that occurred.

      On M ay 1, 2003 at 4:45 a.m., Officer Lindell M iller noticed M s. Giannetti

driving southbound on Perkins Road, U.S. Hwy 177, without using her headlights.

Officer M iller engaged his emergency overhead lights and follow ed M s.

Giannetti, who did not stop. M s. Giannetti continued at an excessive rate of

speed to her home, without signaling or heeding traffic signs. Officer M iller

called for backup, and Officers Jeff Dillon and Tom Comstock responded to the

call. M s. Giannetti pulled into her driveway. Having unholstered his weapon,

Officer M iller approached M s. Giannetti, and asked her to keep her hands up.

M s. Giannetti raised and lowered her hands, and began to rummage in her purse.

      Officers D illon and Comstock arrived and surrounded the car. A fourth

officer, Lieutenant Robert B. M cDougal, also arrived at the scene. 2 Lt. M cDougal

was apparently familiar with M s. Giannetti and her mental health issues. Officer

M iller holstered his weapon when he was convinced that M s. Giannetti was

unarmed.



      2
          Officer M iller and Lt. M cDougal are each CLEET (“Council of Law
Enforcement Education and Training”) certified officers, w ith approximately
1,300 hours of training as of M ay 1, 2003. This training includes administration
of proper restraint techniques and dealing with mentally ill persons. Aplt’s App.
vol. I, at 68 (Defs’ M ot. for Summary Judgment). Defendant Detention Officer
W hitley had approximately 344 hours of certified training.

                                         -3-
      M s. Giannetti, who was clinically obese and had been diagnosed with

bipolar disorder, proceeded to lock herself in the car and refused to exit. She

insisted she could not be arrested since she was now at her home. She also stated

nonsensically that she had liver and onions in the car and was going to eat Officer

Comstock. Officer Comstock also recognized Ms. Giannetti from previous

official interactions.

      M s. Giannetti eventually relented and exited the car. After a brief struggle,

the officers handcuffed her and placed her under arrest for eluding the police, a

misdemeanor. Officer M iller escorted M s. Giannetti, whom he noticed was

perspiring heavily, to the Stillwater City Jail. At 5:08 a.m., Detention Officer

Scott W hitley took custody of M s. Giannetti at the jail.

      Detention Officer W hitley took M s. Giannetti to the jail booking area and

seated her on a bench. Officer M iller went to the control room adjoining the

booking area and began preparing reports pertaining to M s. Giannetti’s arrest. Lt.

M cDougal joined Officer M iller there. Officer M iller and Lt. M cDougal could

easily see and hear what was going on in the booking area and surrounding rooms

from this location.

      Detention Officer W hitley asked M s. Giannetti for some general

information regarding her identity, next of kin, emergency contacts, and any

medical conditions. He asked whether she had been drinking, had taken any

drugs, or had a psychiatric history; she replied “no” to each of these. Aplt’s App.


                                          -4-
vol. I, at 261. Detention Officer W hitley asked her if she had any suicidal

tendencies; she replied “no.” Id. at 261-62. W hen he asked M s. Giannetti about

specific illnesses, she interrupted and told him that she took “chill pills,”

specifically Depakote, and that she was allergic to penicillin. Id. at 262. At one

point M s. Giannetti complained that the handcuffs were too tight. Detention

Officer W hitley checked the cuffs, and found her hands had good color, and that

the handcuffs had slipped up her arm a little. He stated that she was perspiring

heavily, which he believed was consistent with someone who might have taken

methamphetamine.

      Detention Officer W hitley also noted that M s. Giannetti was fidgeting

during the booking process. W hen he w as inventorying her belongings,

specifically her coin purse, M s. Giannetti became defensive. There were no

drugs, prescription or otherwise, in the purse. Detention Officer W hitley was

curious about a strange colored bottle of breath drops, which later tested

negatively for contraband. W hen he asked M s. Giannetti about the bottle, she

informed him that her daughter had given her the bottle, and to leave it alone.

Detention Officer Whitley testified that this behavior suggested to him that M s.

Giannetti might be under the influence of an illegal substance.

      Detention Officer W hitley also testified that, for suspects who are booked,

standard policy directs that a suspect change into a jumpsuit only if officers

suspect that the detainee is on drugs, hiding contraband, or wearing clothing that


                                          -5-
the officers deem dangerous. His testimony indicates he suspected M s. Giannetti

might “be on drugs.” Id. at 301. He noted that dispatch had called for a female

officer to assist with the process of monitoring M s. Giannetti’s change into prison

garb.

        OSU Police Dispatcher Tamara Stumbaugh arrived to assist M s. Giannetti

change in the bio-hazard (“haz-mat”) room, which adjoined the booking area.

Detention Officer W hitley removed M s. Giannetti’s handcuffs, escorted the two to

the haz-mat room, and returned to the booking area. Detention Officer W hitley

instructed Dispatcher Stumbaugh that M s. Giannetti had to be “changed out.” Id.

at 330. W hile in the haz-mat room, Dispatcher Stumbaugh said she retrieved an

orange jumpsuit from a cabinet and explained to M s. Giannett that she would

have to put the jumpsuit on. M s. Giannetti stated she was not going to change.

After further verbal protest, Dispatcher Stumbaugh stated that M s. Giannetti hit

her in the left low er jaw .

        At this time, Officer M iller, Lt. M cDougal, and Detention Officer W hitley

heard a commotion in the haz-mat room. 3 M s. Giannetti can be heard saying “I’m


        3
         W e note that the Stillwater Police Department’s video recording of the
incident stops just shortly after Detention Officer W hitley heard the commotion
and entered the haz-mat room (at approximately 5:33:28 a.m.). The events that
took place in the haz-mat room were apparently recorded by an audio-only device,
the results of which are indecipherable. The video recording resumes from a
different camera position at approximately 5:47:08 a.m., when the camera films
an officer just outside the door of the haz-mat room looking in on M s. Giannetti.
Although such recordings might be useful, they provide little insight into what
                                                                        (continued...)

                                          -6-
not changing.” Upon entering the haz-mat room, Detention Officer W hitley

handcuffed M s. Giannetti, who fell to her knees. Officer M iller and Lt.

M cDougal shifted M s. Giannetti to a facedown position. After some struggling,

Dispatcher Stumbaugh was able to take off M s. Giannetti’s socks, at which point

she discovered M s. Giannetti was wearing pantyhose. At this point, Officer

W hitley observed that these too would have to be removed to ensure that the

pantyhose would not be used as a suicide instrument.

      During a process that lasted approximately ten to fifteen minutes, the

officers took off M s. Giannetti’s pantyhose and placed the jumpsuit uniform on

the lower half of her body. During the majority of that time, M s. Giannetti was

struggling with three male officers – kicking with her legs, moving her head, and

using her nails to dig into one officer’s arm – w hile the officers held her legs,

arms, head, and back down in an effort to keep her from moving. At one point,

M s. Giannetti kicked Officer M iller in the chest so that he was forced backwards

into a locker. Detention Officer W hitley and Officer M iller told M s. Giannetti

several times the pantyhose had to come off. M s. Giannetti responded that “they

can’t come off, they won’t come off.” Id. at 152. Lt. M cDougal instructed the

officers to remove the pantyhose because M s. Giannetti w ould not.




      3
      (...continued)
happened during the nearly twenty minutes M s. Giannetti lay prone inside the
haz-mat room.

                                          -7-
      At one point, Detention Officer W hitley had his hands on M s. Giannetti’s

shoulder blades and Officer M iller restrained her legs in a figure four restraint

(placing one foot behind the knee of the opposing leg and then bending that leg so

as to control both feet). Lt. M cDougal then took over for Detention Officer

W hitley, who helped Officer M iller restrain M s. Giannetti’s legs. Dispatcher

Stumbaugh removed her sweatpants and panythose, while M s. Giannetti continued

to struggle.

      Officer M iller subsequently shifted spots again, and Lt. M cDougal placed

his left knee towards the middle of M s. Giannetti’s back. Lt. M cDougal stated

that he applied only the amount of pressure necessary to keep M s. Giannetti from

rising. Lt. M cDougal placed his left calf across her head. He then shifted and

placed his left knee on her right shoulder with his leg across the back of her neck.

      Officer M iller and Detention Officer W hitley testified that M s. Giannetti

expressed at least twice during the struggle that she was having difficulty

breathing by “scream[ing]” that her “lungs were collapsing” and at least once

indicated that “she couldn’t breathe.” Id. at 160 (Officer M iller testifying that

“G iannetti stated she could not breathe, her lungs were collapsing, and we w ere

hurting her”), 307-08 (Detention Officer W hitley testifying that “at least a couple

of times” she “screamed” that her “lungs are collapsing”). According to Officer

M iller and Dispatcher Stumbaugh she also begged for the officers to “stop, you’re

killing me you’re hurting me. ” Id. at 164 (Officer M iller noting that she moaned


                                          -8-
that “we’re killing her, that we’re hurting her”); 353 (Dispatcher Stumbaugh

testifying that M s. Giannetti said “stop, you’re hurting me”). Officer M iller also

noted that she pleaded “please stop, oh, God, please.” Id. at 164.

      Detention Officer W hitley and Officer M iller assisted in putting the

jumpsuit on M s. Giannetti. After it was up to her waist, the officers decided to let

M s. Giannetti finish changing herself, although she was still in handcuffs.

Officer M iller asked M s. Giannetti to sit up and walk or she would have to be

carried. M s. Giannetti did not answer. Officer M iller testified that at this point

M s. Giannetti remained handcuffed, and was lying partially on her stomach. Lt.

M cDougal left the room to get assistance to carry M s. Giannetti. Officer M iller

noted that during this time she “had rolled more to her side.” Id. at 166.

      Officer M iller monitored M s. Giannetti every thirty seconds or so to see if

her ribs were moving. He noticed that after about ninety seconds, she did not

appear to be breathing, and that, after rolling her onto her back, her lips were

“slightly bluish.” Id. at 168. After calling for help, Officer M iller and Lt.

M cDougal began CPR, while M s. Giannetti’s wrists remained handcuffed behind

her back.

      Detention Officer W hitley called for an ambulance, and within three

minutes, the medical officer from the Stillwater Fire Department arrived. The

ambulance crew took M s. Giannetti to the Stillwater M edical Center, where she

died later that day.


                                          -9-
      The O klahoma M edical Examiner’s Officer initially determined that M s.

Giannetti died from “probable cardiac dysrhythmia during agitated state.” Id. at

438. Oklahoma’s Chief M edical Examiner amended those findings and

determined that she died from “anoxic encephalopathy due to probable cardiac

dysrhythmia due to restraint/positional asphyxia.” Id. vol. II, at 662. M r.

Giannetti filed this action in the United States D istrict Court for the W estern

District of Oklahoma pursuant to 42 U.S.C. § 1983. The complaint alleged that

the defendant officers violated his wife’s Fourth Amendment rights by subjecting

her to excessive force while acting under color of law, and that M s. Giannetti died

as a result of such excessive force. The complaint also alleged that the City

failed to properly train, educate, and supervise the officer defendants, and that the

defendant officers’ negligence resulted in M s. Giannetti’s wrongful death.

      The defendants filed a motion for summary judgment, and the district court

granted that motion, finding that the officers acted reasonably under the Fourth

Amendment, and did not engage in the use of excessive force. 4 As to the state

tort claims, the district court ruled that the City was immune under the Oklahoma

Governmental Tort Claims Act, but that the individual defendant officers had not

presented a summary judgment argument on the state claims. The parties



      4
         The parties agreed to have this case heard by a magistrate judge. Thus,
this appeal is properly taken from the magistrate judge’s entry of final judgment.
See 28 U.S.C. § 636(c)(3).


                                          -10-
subsequently agreed to a dismissal of the state tort claims. The district court then

entered judgment in favor of all the defendants on all claims. W e have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

                                  II. DISCUSSION

      M r. Giannetti contends that the officers used excessive force in violation of

the Fourth A mendment when they restrained and handcuffed his wife. He also

contends that the City’s training materials are relevant to this inquiry. In their

cross-appeal, the officers maintain that, even if a reasonable jury could find that

they used excessive force during M s. Giannetti’s detention, they are entitled to

qualified immunity because at the time of the violation, the existing law was not

clearly established so that the unlawfulness of the excessive force was apparent.

For the reasons stated herein, we hold that (1) the district court properly granted

summary judgment to the officers, (2) M r. Giannetti’s argument that the City’s

training materials are relevant is foreclosed by our precedent, and (3) the officers’

cross-appeal is moot.

A. Standard of review

      W e review a grant of summary judgment de novo, construing the factual

record and reasonable inferences in the light most favorable to M r. G iannetti.

Trask v. Franco, 446 F.3d 1036, 1045 (10th Cir. 2006). Summary judgment is

appropriate only where there is no genuine issue of material fact and one party is

entitled to judgment as a matter of law. F ED . R. C IV . P. 56(c). The parties do not


                                         -11-
dispute the underlying facts, limiting our analysis to whether the district court

correctly applied the law. Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796

(10th Cir. 1995).

      W hen a defendant raises the defense of qualified immunity, we must

consider two questions: “(1) whether the alleged conduct violated a constitutional

right, and if so, (2) whether the law was clearly established at the time of the

defendant’s actions.” Shrum v. City of Coweta, 449 F.3d 1132, 1138 (10th Cir.

2006) (citing Saucier v. Katz, 533 U.S. 194 (2001)). “The relevant, dispositive

inquiry in determining whether a right is clearly established is w hether it would

be clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier, 533 U.S. at 202.

      W e must first resolve whether a constitutional violation occurred “because,

‘in the course of determining whether a constitutional right was violated on the

premises alleged, a court might find it necessary to set forth principles which will

become the basis for a holding that a right is clearly established.’” M imics, Inc. v.

Village of Angel Fire, 394 F.3d 836, 842 (10th Cir. 2005) (quoting Saucier, 533

U.S. at 201). W e review the district court’s grant of summary judgment on the

basis of qualified immunity de novo, and affirm only if the record reveals no

genuine issue of material fact, such that the moving party is entitled to judgment

as a matter of law. Johnson ex rel. Estate of Cano v. Holmes, 455 F.3d 1133,

1142 (10th Cir. 2006).


                                          -12-
B. The officers’ use of force w as objectively reasonable under Graham v.
Connor

      Following Saucier we must first determine whether, on the facts offered in

support of M r. Giannetti’s claim, the City of Stillwater officers’ conduct violated

the constitutional prohibition against the use of excessive force. See

Phillips v. James, 422 F.3d 1075, 1080 (10th Cir. 2005); Drummond ex rel.

Drummond v. City of Anaheim, 343 F.3d 1052, 1056 (9th Cir. 2002). M r.

Giannetti contends that the officers’ use of force in holding M s. Giannetti, a

mentally ill obese female, in a prone position for ten to fifteen minutes despite

her apparent and voiced distress, was an unreasonable and excessive use of force.

The district court found that “the undisputed evidence reflects an escalating

struggle and, with the increased intensity of the risk to the officers, they

responded with additional restraint.” Aplt’s App. vol. II, at 945 (Dist. Ct. Order

filed Feb. 6, 2006). W e agree with the district court’s conclusions.

      All parties agree that the Supreme Court’s decision in Graham v. Connor,

490 U.S. 386 (1989), sets forth the applicable excessive force analysis. “[A]ll

claims that law enforcement officers have used excessive force–deadly or not–in

the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen

should be analyzed under the Fourth A mendment and its ‘reasonableness’

standard.” 490 U.S. at 395. “[L]aw enforcement officers m ust be ‘objectively




                                         -13-
reasonable’ in their searches and seizures.” Dixon v. Richer, 922 F.2d 1456, 1461

(10th Cir. 1992).

      [I]n excessive force claims asserted under the Fourth Amendment, the
      qualified immunity question is usually answ ered in the Fourth
      Amendment inquiry. This is because, in the excessive force context,
      the Fourth Amendment inquiry asks directly whether the police officer
      reasonably could have believed that the force was necessary under the
      circumstances.

Id. at 1463.

      Determining whether force used to effect a particular seizure is
      reasonable under the Fourth A mendment requires a careful balancing
      of the nature and quality of the intrusion on the individual’s Fourth
      Amendment interests against the countervailing governmental interests
      at stake. . . . Because the test of reasonableness under the Fourth
      Amendment is not capable of precise definition or mechanical
      application, however, its proper application “requires careful attention
      to the facts and circum stances of each particular case, including the
      severity of the crim e at issue, whether the suspect poses an im m ediate
      threat to the safety of the officers or others, and whether he is actively
      resisting arrest or attem pting to evade arrest by flight.”

      ....

      In applying this standard, we are to consider the evidence in the light
      most favorable to [the person who was arrested].

Id. at 1462 (quoting Graham, 490 U.S. at 396) (internal quotation marks omitted)

(emphasis added).

      Additionally, “the ‘reasonableness’ of a particular use of force must be

judged from the perspective of a reasonable officer on the scene, rather than with

the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. In excessive force

claims, “[t]he calculus of reasonableness must embody allowance for the fact that


                                         -14-
police officers are often forced to make split-second judgments–in circumstances

that are tense, uncertain, and rapidly evolving–about the amount of force that is

necessary in a particular situation.” Id. at 396-97.

      The Supreme Court has also recognized that “Graham does not always give

a clear answer as to whether a particular application of force will be deemed

excessive by the courts.” Saucier v. Katz, 533 U.S. at 205. “It is well settled that

the reasonableness standard does not require that officers use alternative, less

intrusive means when confronted with a threat of serious bodily injury.” Blossom

v. Yarbrough, 429 F.3d 963, 968 (10th Cir. 2005) (internal quotation marks

omitted). Because Graham must “accommodate limitless factual circumstances,”

we examine the facts and circumstances of M s. Giannetti’s arrest. Saucier, 533

U.S. at 205; Lawmaster v. Ward, 125 F.3d 1341, 1349 (10th Cir. 1997) (stating

that the “reasonableness inquiry under the Fourth Amendment “is a highly

fact-dependent inquiry that can only be determined on a case-by-case basis”).

      1. Severity of the crime

      M r. Giannetti contends that the district court gave short shrift to the

negligible severity of the crime in question when analyzing the facts. He argues

that M s. Giannetti was arrested for only a misdemeanor traffic offense, and not a

severe offense that would immediately support an increased use of force. W hile

we agree that M s. Giannetti’s original offense did not involve a crime of violence

and she was unarmed, and that her odd behavior did not pose an immediate threat


                                         -15-
to the assembled group of officers, we must also factor into the equation that M s.

Giannetti had just struck D ispatcher Stumbaugh. W hile we agree that we must

consider the minor nature of M s. Giannetti’s original offense under Graham, w e

must also be mindful of M s. Giannetti’s battery of the dispatcher prior to the

officers’ use of force.

       The Eighth Circuit recently rejected an officer’s reliance on multiple minor

offenses in support of the reasonableness of his use of pepper spray against the

plaintiff:

       Officer M unn’s reference to the offenses for which Henderson w as
       arrested–obstructing governmental operations by giving a false name,
       resisting arrest, public intoxication, and the two outstanding warrants
       for failure to appear–fails to tip the scales of reasonableness in Officer
       M unn’s favor. The negligible severity of such offenses did not
       necessarily justify the amount of force used against an individual who,
       according to H enderson’s allegations, already had been subdued and
       restrained with handcuffs.

Henderson v. M unn, 439 F.3d 497, 503 (8th Cir. 2006).

       However, M s. Giannetti did attempt to evade, or at least, delay arrest. M r.

Giannetti does not dispute that, while at the jail, after she struck Officer

Stumbaugh, the officers’ initial handcuffing of M s. Giannetti was a reasonable

intervention. M r. Giannetti contends that the district court gave short shrift to the

negligible severity of the crime in question when analyzing the facts. W e agree

that we must consider the minor nature of M s. Giannetti’s offense under Graham.

       2. Immediate threat to the officers and active resistance



                                          -16-
      M r. Giannetti next argues that, while his w ife was handcuffed and placed in

a prone position, she posed little immediate threat to the officers. He argues that

her physical struggling and kicking of the officers resulted from fear and panic

when faced with hampered breathing and possible suffocation. Such reaction,

according to M r. Giannetti, did not warrant the several officers’ extreme and

unreasonable use of force to incapacitate a prone and handcuffed M s. Giannetti.

Thus, argues M r. G iannetti, a jury should decide the reasonableness of force used.

See, e.g., Henderson, 439 F.3d at 503 (“By the time Henderson was handcuffed

and pinned face down on the ground, a reasonable jury could decide Henderson

was no longer resisting arrest, even if he had resisted arrest before being

subdued.”); Liston v. County of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997)

(“W e have held repeatedly that the reasonableness of force used is ordinarily a

question of fact for the jury.”).

      M r. Giannetti also emphasizes his wife’s evident mental illness and

aberrant behavior during and after the arrest, which he claims was known by the

involved officers. M s. Giannetti had been diagnosed with bipolar disorder and

had multiple previous psychiatric admissions. Officer M iller stated that when M s.

Giannetti locked herself in the car she appear “ill-rational” [sic], and that she was

perspiring heavily, a possible sign of drug use. Aplt’s A pp. vol. I, at 197-98. Lt.

M cDougal was familiar with M s. Giannetti’s erratic behavior because of previous

interactions w ith her. Although M s. Giannetti did not confirm any psychiatric


                                         -17-
history when she answ ered Detention Officer Whitley’s medical history questions,

she did explain that she was taking Depakote, which she called “chill pills.” Id.

at 262.

      W e agree that a detainee’s mental health must be taken into account when

considering the officers’ use of force and it is therefore part of the factual

circumstances the court considers under Graham. See Cham pion v. Outlook

Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004) (“It cannot be forgotten that the

police were confronting an individual whom they knew to be mentally ill or

retarded, even though the Officers may not have known the full extent of [the

plaintiff’s] autism and his unresponsiveness. The diminished capacity of an

unarmed detainee must be taken into account when assessing the amount of force

exerted.”) (emphasis added); Abdullahi v. City of M adison, 423 F.3d 763, 772

(7th Cir. 2005) (noting that an officer’s know ledge of mental disability “may also

be deemed relevant to the reasonableness inquiry”); Drummond, 343 F.3d at 1058

(“[A] detainee’s mental illness must be reflected in any assessment of the

government’s interest in the use of force.”); Deorle v. Rutherford, 272 F.3d 1272,

1283 (9th Cir. 2001) (“[W ]e emphasize that where it is or should be apparent to

the officers that the individual involved is emotionally disturbed, that is a factor

that must be considered in determining, under Graham, the reasonableness of the

force employed.”).




                                          -18-
         Despite M s. Giannetti’s evidently irrational behavior and assuming the

officers’ familiarity with her mental history, we cannot conclude that the officers

used excessive force given the “tense, uncertain, and rapidly evolving” situation

presented by M s. Giannetti’s behavior. Graham, 490 U.S. at 396-97. As the

officers point out, the Seventh Circuit decision in Estate of Phillips v. City of

M ilwaukee, 123 F.3d 586 (7th Cir. 1997), is particularly instructive. M r. Phillips

suffered from several serious medical conditions that were not “observable to the

untrained eye,” including an enlarged heart, an enlarged thyroid, Graves’ disease,

and schizophrenia. See id. at 590, 594. Like M s. Giannetti, M r. Phillips was

obese.

         M r. Phillips had been evicted from his hotel room for destroying hotel

property. The following day, he returned to his former room undetected by using

a key that he had retained. Housekeeping staff detected him, and summoned

security, who called the police. W hen the police entered the room, they found

M r. Phillips “visibly shaking and sweating.” Id. at 588.

         M r. Phillips did not respond to the officers’ inquiries, and he resisted the

officers. As recounted by the Abdullahi court, the Phillips facts are painfully

similar to those before us:

         After taking decedent to the ground and subduing him in a m anner very
         similar to the technique used by the defendant officers in this case, the
         officers left him lying face-down on the ground with his hands
         handcuffed behind him for approximately five minutes. Decedent’s



                                            -19-
      weight, his position on the ground and (apparently) his preexisting
      health problems caused him to suffocate.

Abdullahi, 423 F.3d at 770 (describing Phillips).

      In Phillips, as here, the uncontroverted testimony is that the decedent’s

actions caused the struggle to escalate. Like M r. Phillips, M s. Giannetti, once

prone on the ground, continued to struggle and kick the officers, at one point

sending one officer against a locker. W e agree that “[r]estraining a person in a

prone position is not, in and of itself, excessive force when the person restrained

is resisting arrest.” Phillips, 123 F.3d at 593. “The medical evidence and w itness

testimony in this case shows that the officers did not punch, slap, kick or

otherw ise deliver a blow” to M s. Giannetti. Id. “Authorities must be allowed ‘to

graduate their response to the demands of any particular situation.’” United

States v. M ontoya de Hernandez, 473 U.S. 531, 542 (1985) (quoting United States

v. Place, 462 U.S. 696, 709 n.10 (1983)). Here, the officers w ere not required to

“use alternative, less intrusive means” during the escalating struggle. M edina v.

Cram, 252 F.3d 1124, 1133 (10th Cir. 2001) (internal quotation marks omitted).

      M r. Giannetti contends this case is more like Drummond, where the Ninth

Circuit acknowledged that the force used was excessive although “some force was

surely justified in restraining Drummond so that he could not injure either himself

or the arresting officers.” 343 F.3d at 1059. M r. “D rummond was a mentally

disturbed individual not wanted for any crime, who was being taken into custody



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to prevent injury to himself.” Id. M r. Drummond suffered from bipolar disorder

and schizophrenia, and had run out of medication. The officers escorted him to a

medical facility, but he did not have the funds to obtain his prescribed medicine.

The next night, M r. Drummond’s neighbor called the police to prevent M r.

Drummond, who was hallucinating and in an agitated state, from darting into

traffic.

       W itnesses noted that the officers knocked M r. Drummond to the ground and

leaned upon his upper neck and torso. The w itnesses reported that M r.

Drummond told the officers he could not breathe and was choking, while the

officers were laughing. The Ninth Circuit concluded that “after he was

handcuffed and lying on the ground, the force that the officers then applied was

clearly constitutionally excessive when compared to the minimal amount that was

warranted.” Id. The court held that “[t]he officers–indeed, any reasonable

person–should have known that squeezing the breath from a compliant, prone, and

handcuffed individual despite his pleas for air involves a degree of force that is

greater than reasonable.” Id. Unlike Drummond, where M r Drummond no longer

resisted after the officers placed him in a prone position, M s. Giannetti actively

resisted, kicked, and thrashed at the officers. W e conclude that the officers’

continued use of force to restrain M s. Giannetti, although perhaps not the least

intrusive choice that they could have made, was not unreasonable in response to

her escalating opposition. See Hudson v. M cM illian, 503 U.S. 1, 9-10 (1992)


                                         -21-
(noting that Eighth Amendment does not prohibit “de minimis uses of physical

force, provided that the use of force is not of a sort repugnant to the conscience of

mankind”) (internal quotation marks omitted).

      Our conclusion is buttressed by the Seventh Circuit’s holding in Abdullahi,

423 F.3d at 771. In Abdullahi, unlike here, the plaintiff identified the specific

misconduct at issue— the officer’s placing his knee on the decedent’s back with

crushing force. The plaintiff also introduced competent medical evidence

establishing that this act directly caused deadly injuries including a collapsed lung

and other injuries consistent with extreme external pressure. But the court stated

that “the mere fact that an injury occurred while an individual was in police

custody is not sufficient to avoid summary judgment— a plaintiff must identify

the specific unreasonable conduct that caused his or her injuries.” Id. at 770-71.

Here, however, M r. Giannetti can point to no specific act of misconduct that

suggests the officers applied excessive force. Even when we construe the facts in

the light most favorable to M r. Giannetti, he cannot establish facts sufficient to

survive summary judgement.

C. Training materials

      M r. Giannetti also relies upon the training materials at the Stillwater police

department as further evidence of the officers’ unreasonable response. However,

our broad ruling in Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir. 2005), forecloses

this argument. In Tanberg, we held that the fact “[t]hat an arrest violated police


                                         -22-
department procedures does not make it more or less likely that the arrest

implicates the Fourth Amendment, and evidence of the violation is therefore

irrelevant.” Id. at 1163-64 (emphasis added). “If [the officers] violated the

[department procedures] governing the use of force in effecting arrest, that fact

might well be pertinent to the [Stillwater police department’s] future decisions to

promote, retain, or discipline [them]; it is not relevant to determining if [M s.

Giannetti’s] arrest violated the reasonableness requirement of the Fourth

Amendment.” Id. at 1164; see also Groh v. Ramirez, 540 U.S. 551, 564 n.7

(2004) (noting that, standing alone, an official is not “deprived of qualified

immunity whenever he violates an internal guideline”).

D. Cross-appeal

      The officers argue in their cross-appeal that they are entitled to qualified

immunity in this action. Because the district court granted summary judgment to

the officers because there was no constitutional violation, it did not reach the

qualified immunity analysis. The officers nevertheless contend that they are

entitled to qualified immunity because (1) they did not subject M s. Giannetti to

any violation of her constitutional rights, and (2) any violation was not clearly

established. The analysis of the excessive force Fourth A mendment claim is

identical to our analysis of the first prong of a qualified immunity claim. W e

reject the officers’ apparent suggestion that any further inquiry is needed.




                                         -23-
      W e reiterate “that taking a cross-appeal was neither necessary nor

appropriate for this purpose. Only a party aggrieved by the judgment may appeal,

and [the defendants were] 100% successful.” Leprino Foods. Co. v. Factory M ut.

Ins. Co., 453 F.3d 1281, 1290 (10th Cir. 2006) (alteration in original) (internal

quotation marks omitted). See also Phillips v. AWH Corp., 363 F.3d 1207, 1216

(Fed. Cir. 2004) (“A party has no right of cross-appeal from a decision in its

favor. Similarly, a party who prevails . . . has no right to file a conditional

cross-appeal to introduce new arguments or challenge a claim construction, but

may simply assert alternative grounds in the record for affirming the judgment”)

(internal citations and quotation marks omitted), rev’d on other grounds, 415 F.3d

1203 (Fed. Cir. 2005) (en banc). Here, the officers are making arguments in the

alternative; because they were successful below, they cannot file a cross-appeal.

                                 III. CONCLUSION

      In this case, we confront a sobering demonstration of how quickly a

seemingly routine misdemeanor arrest of a mentally disturbed individual may

escalate and result in tragic consequences. W hile the criminal conduct underlying

M s. Giannetti’s arrest w as not severe, she posed a grave threat to herself and to

the officers. A bsent evidence that the officers’ conduct was objectively

unreasonable, the excessive force claim must fail. W hile in retrospect, one might

wonder whether the officers should have foregone the requirement of changing

into the jumpsuit, the record makes clear that their responses had to accommodate


                                          -24-
a rapidly deteriorating situation. M oreover, their responses reflected their

appropriate concern that M s. Giannetti w as dangerous to herself and others.

Accordingly, we AFFIRM the district court’s grant of the officers’ motion for

summary judgment, and DISM ISS the officers’ cross-appeal as moot.



                                                Entered for the Court,


                                                Robert H. Henry
                                                Circuit Judge




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