                        REVISED, May 8, 1998

                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT

                            ____________

                            No. 97-50082
                            ____________


          RENE GUTIERREZ, Individually and on behalf of
          the estate of Rene Gutierrez, Jr; LIBRAVA
          GUTIERREZ, Individually and on behalf of the
          Estate   of  Rene   Gutierrez,  Jr;   ROSANNA
          GUTIERREZ, as next friend of Monica Gutierrez
          and Monique Gutierrez,


                               Plaintiffs-Appellees,

          versus


          CITY OF SAN ANTONIO; ET AL,


                               Defendants,

          LAWRENCE WALTERS, San Antonio Police Officer
          individually and in his official capacity;
          ROBERT SOLIS, San Antonio Police Officer
          individually and in his official capacity

                               Defendants-Appellants.



          Appeal from the United States District Court
                For the Western District of Texas

                           April 14, 1998

Before EMILIO M. GARZA, STEWART, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

     The family of Rene Gutierrez, Jr. (“Gutierrez”) brought suit

against the defendant police officers, Lawrence Walters, Jr. and

Robert Solis (the “officers”), for allegedly depriving him of his
rights under the Fourth and Fourteenth Amendments of the U.S.

Constitution by hog-tying him.         The district court issued an order

granting in part and denying in part the officers’ summary judgment

and FED. R. CIV. P.12 (b)(6) motions.         The officers now bring an

interlocutory appeal seeking dismissal or summary judgment based on

qualified immunity.      Because we conclude that material disputes of

fact prevent us from determining the objective reasonableness of

the officers’ conduct, we dismiss their appeal of the Fourth

Amendment claim for lack of jurisdiction and vacate and render a

take nothing verdict on the Fourteenth Amendment claim.

                                        I

     Shortly before midnight on November 27, 1994, Walters and

Solis   drove   toward   a   heavily    trafficked   intersection   in   San

Antonio, Texas, in a part of town known for high drug use.          Passing

through the intersection, they saw Gutierrez stand up from the side

of the street and begin stumbling around in the intersection,

wearing a pair of trousers but no shoes, shirt, or other clothing.

     Walters initially thought that Gutierrez was intoxicated.            He

turned the patrol car around approximately one block west of

Gutierrez and began to drive back towards Gutierrez.         The officers

observed him running around in circles in the middle of the street

and slipping and falling on his side.          As they parked the patrol

car and approached Gutierrez, he began swinging his arms wildly and

crawling toward them on his hands and knees. Gutierrez shouted out

that he had been shot; the officers checked, but found no bullet

wounds on Gutierrez or nearby persons with guns.         The officers did


                                       -2-
notice numerous abrasions on his chest and bleeding from his mouth.

     Walters cuffed Gutierrez “for his safety and mine.”              He did

not arrest Gutierrez, but police reports indicate that Walters

intended to do so later.      Walters also noted that Gutierrez’s eyes

were glassy, he was walking unsteadily, and his speech was slurred.

When Walters asked Gutierrez if he had taken any drugs, Gutierrez

said that he had “shot some bad coke.” Solis later testified that

Gutierrez was “exhibiting that he was high on some type of drugs.”

     Solis called an ambulance (“EMS”), allegedly for a possible

toxic ingestion overdose.         While waiting for the EMS to arrive,

Gutierrez sat calmly with his back against a rear door of the

patrol car.       As traffic in the intersection increased, Walters

placed Gutierrez face down in a prone position in the back seat and

drove the patrol car into a neighboring parking lot. Gutierrez was

quiet and peaceful, and his feet were not restrained in any way.

     When the EMS arrived, Walters told EMS Technicians Ernest

Lavin   and   Michelle    Cevallos   that   Gutierrez   had   admitted    to

injecting bad cocaine.       Lavin and Walters removed Gutierrez from

the back seat of the patrol car and walked him toward the EMS

vehicle.   When Gutierrez got to the rear of the EMS unit, he turned

around and sat down.      Gutierrez suddenly began to push and tried to

get into the EMS vehicle, yelling “put me in.”           As abruptly, he

kicked Lavin in the chest, and shouted “get me out.”            Due to this

violence, Lavin refused to transport Gutierrez to the hospital.

Walters    then   asked   Lavin   whether   Gutierrez   could    be   safely

transported in a patrol car, to which Lavin replied that Gutierrez


                                     -3-
appeared to be having psychiatric problems rather than a reaction

to bad drugs.

       Walters and Lavin returned Gutierrez to the back seat of the

patrol car to transport him to a local hospital for examination,

allegedly placing him face down in the back seat.        Gutierrez began

to kick the back of the driver’s seat, the metal cage, and the

windows of the patrol car with his bare feet.          Walters and Solis

agreed that Gutierrez’s legs would have to be restrained, “for his

safety and ours.” Solis got his personal leg-restraint device from

the patrol car, a nylon rope with a loop on one end and a clasp on

the other (a “hog-tie”). Walters placed the loop around Gutierrez’s

feet, and Solis linked the clasp around the handcuffs, drawing

Gutierrez’s legs backward at a 90-degree angle in an “L” shape,

thereby   “hog-tying”    him.    Whether    the   officers   then     placed

Gutierrez in a face down position on the rear seat or with his face

pointed toward the rear of the front seat is disputed, but as the

officers set off for the hospital, he was conscious and struggling.

       Walters and Solis drove to the hospital at a normal rate of

speed with their lights and sirens off and the rear of the patrol

car darkened.    While Walters drove, Solis occasionally checked to

see if Gutierrez’s restraints were secure, but he did not check to

see if Gutierrez was still breathing or otherwise monitor him.

Approximately ten minutes into the journey, all sounds of Gutierrez

struggling stopped.     Upon arriving at the hospital, Walters went

into   the   hospital   to   summon    medical   personnel   while    Solis,

believing Gutierrez to be asleep, began to nudge him.                At that


                                      -4-
time,   Gutierrez      was   face   down   on    the    seat,   a   position    that

allegedly restricted the amount of oxygen that could reach his

heart   and    his    heart’s   ability    to    pump    oxygen-enriched       blood

throughout his body.         Medical personnel came out to the car, the

restraints were removed, and the medical personnel discovered that

Gutierrez did not have a pulse.                 They then took him into the

emergency room where doctors pronounced him dead.

     At the autopsy, Dr. Vincent DiMaio, Chief Medical Examiner of

Bexar County, initially determined that Gutierrez had died as a

result of the combined effects of methadone, cocaine, imipramine

and morphine.        Dr. DiMaio later issued an addendum to the Autopsy

Report that stated:

          Subsequent to completion of the autopsy report on
     Rene Gutierrez, this office discovered that when the
     deceased was transported in the San Antonio Police
     Department unit, that he was placed on the back seat,
     face down, his hands secured behind his back with
     handcuffs and his feet tied with a rope which was then
     tied to his hands or the handcuffs. In other words, the
     deceased was “hog tied.”
          It is known that “hog tying” of an individual and
     placing them in the position that Rene Gutierrez was
     placed, can produce a relative hypoxia and in some
     instances death. Based on the new information supplied,
     it is our opinion that the “hog tying” was a contributory
     cause to Rene Gutierrez’s death.

     Gutierrez’s family filed a claim alleging violations of 42

U.S.C. §§     1981, 1983, 1985 and 1986 based the Fourth, Eighth, and

Fourteenth Amendments of the U.S. Constitution and pendant state

tort law claims.         Solis filed a motion to dismiss or, in the

alternative, for summary judgment, based on a qualified immunity

defense.      Walters also filed a summary judgment motion arguing the

same defense.

                                       -5-
     In response to these motions, Gutierrez introduced three

pieces of evidence into the summary judgment record suggesting hog-

tying to be unreasonable under these circumstances: (1) a 1991 San

Diego Task Force Study in the possession of the San Antonio Police

Department    (“SAPD”)     in   November   1994   indicating      that   the

combination   of   hog-tying    a   drug-affected   person   in    “cocaine

psychosis” (excited delirium) and “positional asphyxia” (placing

them in a face-down prone position) can lead to death (“Sudden

Custody Death Syndrome” or “SCDS”); (2) an article entitled “Sudden

Custody Death Syndrome: The Role of Hogtying,” that appeared in the

fall 1994 issue of Criminal Law Update; and (3) a memo issued by

SAPD Captain Benavides ten days after the death of Gutierrez

“reminding” officers that hog-tying anyone was prohibited.

     The district court dismissed Gutierrez’s Eighth Amendment

claim but denied summary judgment on the Fourth and Fourteenth

Amendment claims.        Walters and Solis timely appealed from the

denial of their motions.

                                     II

     We review the denial of a summary judgment motion de novo,

viewing the evidence in the light most favorable to the nonmovant.1

See Nerren v. Livingston Police Dep’t, 86 F.3d 469, 470 & n.1 (5th


     1
          Solis filed a motion urging that the district court
either dismiss Gutierrez’s complaint under FED. R. CIV. P. 12(b)(6)
or grant him summary judgment under FED. R. CIV. P. 56.       Solis
attached materials outside the pleadings to this motion, thereby
converting it into a Rule 12(c) motion. We review the denial of a
Rule 12(c) motion under the same standard of review as a summary
judgment motion. See Baker v. Putnal, 75 F.3d 190, 197 (5th Cir.
1996).

                                    -6-
Cir. 1996).     Summary judgment is appropriate where “there is no

genuine issue of material fact and [] the moving party is entitled

to judgment as a matter of law.”        FED. R. CIV. P. 56(c). To win

summary judgment, the movant must show that the evidence in the

record would not permit the nonmovant to carry its burden of proof

at trial.    See Celotex v. Catrett, 477 U.S. 317, 327, 106 S. Ct.

2548, 2554, 91 L.Ed.2d 265 (1986).        Once the movant meets this

burden, the burden of coming forward with evidence in the summary

judgment record creating an issue of material fact shifts to the

nonmovant. See Hale v. Townley, 45 F.3d 914, 917 (5th Cir. 1995).

The nonmovant must set forth specific facts showing a genuine issue

for trial.    See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250,

106 S. Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).       A dispute over a

material fact is genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id. at 248,

106 S. Ct. at 2510.    “Material facts” are those “that might affect

the outcome of the suit under the governing law.”      Id.

                                  III

     Although Gutierrez concedes that we have jurisdiction to hear

this interlocutory appeal, we have an independent duty to examine

the basis for our jurisdiction. See Behrens v. Pelletier, 516 U.S.

)), 116 S. Ct. 834, 842, 133 L.Ed.2d 773 (1996) (holding that where

there are issues of law separable from the merits of a claim, a

court of appeals has jurisdiction to review those issues of law on

interlocutory appeal, even when the district court denied summary

judgment on the basis that material disputes of fact remain);


                                  -7-
Johnson v. Jones, 515 U.S. 304, 313, 115 S. Ct. 2151, 2156, 132

L.Ed.2d 238 (1995) (holding that when the only issue presented on

interlocutory appeal is whether the evidence could support a

finding that an official’s conduct violated clearly established

law, a court of appeals lacks jurisdiction to review the denial of

summary judgment). In the instant case, the district court’s order

did not state why it denied the officers’ Rule 12(b)(6) and summary

judgment motions.       After “undertak[ing] a cumbersome review of the

record to determine what facts the district court, in the light

most favorable to the nonmoving party, likely assumed,” Johnson,

515 U.S. at 319, 115 S. Ct. at 2159, we find there to be several

disputes of material fact. However, as even Gutierrez concedes, we

have jurisdiction to consider the officers’ contention that issues

of law separable from the merits exist))namely, whether hog-tying

violates clearly established law and whether their conduct was

objectively reasonable.        See Behrens, 516 U.S. at )), 116 S. Ct. at

842; Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir. 1996).

                                        IV

     Qualified      immunity    protects       officials    in   the   course    of

performance of their discretionary duties unless their conduct

violates       a   “clearly     established         [federal]    statutory       or

constitutional right[] of which a reasonable person would have

known.”      Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,

2738,   73    L.Ed.2d   396   (1992).         We   first   determine   whether    a

plaintiff has alleged the violation of a clearly established

constitutional right.         See Siegert v. Gilley, 500 U.S. 226, 231,


                                        -8-
111 S. Ct. 1789, 1792-93, 114 L.Ed.2d 277 (1991).                If we find a

right to be clearly established, we examine the objective legal

reasonableness of the official’s conduct under the circumstances,

“in light of clearly established law and the information the []

officers possessed.” Anderson v. Creighton, 483 U.S. 635, 640, 107

S. Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).             Qualified immunity thus

protects an official whose conduct was objectively reasonable, even

if   the   conduct   infringed   upon       a   constitutional   right    of   the

plaintiff.     See id. at 641, 107 S. Ct. at 3040.

                                        A

                                        1

      Walters and Solis initially argue that the right to be free of

hog-tying was not clearly established in November 1994 because

neither the Supreme Court nor the Fifth Circuit (or any other

circuit) had specifically held that hog-tying constituted excessive

force.     Such a dogmatic argument is unjustified.          In Anderson, the

Supreme Court stated that whether a clearly established right has

been violated “substantially depends upon the level of generality

at which the relevant ‘legal rule’ is to be identified.”                 483 U.S.

at 639, 107 S. Ct. at 3038-39.          The Court thus required that “the

contours of the right” be defined narrowly enough so that a given

official, with the information that he possesses at the time he

takes the action, could understand that what he is doing violates

the right.    Id. at 640, 107 S. Ct. at 3039.          However, the Court did

not require that the specific action in question have been held

unlawful to overcome the official’s qualified immunity. Id.                     It


                                    -9-
held only that the unlawfulness of the specific action be apparent

“in the light of pre-existing law.” Id.

     Gutierrez’s family alleges that the officers used excessive

force against Gutierrez by hog-tying him, in violation of the

Fourth Amendment.         The protections of the Fourth Amendment are

triggered when a police officer seizes an individual. See Tennessee

v. Garner, 471 U.S. 1, 7, 105 S. Ct. 1694, 1699, 85 L.Ed.2d 1

(1985) (“Whenever an officer restrains the freedom of a person to

walk away, he has seized that person.”); see also California v.

Hodari D., 499 U.S. 621, 624-25, 111 S. Ct. 1547, 1550, 113 L.Ed.2d

690 (1991); Brower v. County of Inyo, 489 U.S. 593, 596-97, 109 S.

Ct. 1378, 1381, 103 L.Ed.2d 628 (1989).               Whether a seizure is

reasonable under the Fourth Amendment depends not only upon whether

the seizure itself is reasonable, but also upon how the police

seize the individual or item.        See Garner, 471 U.S. at 7-8, 105 S.

Ct. at 1699; Harper v. Harris County, Tex., 21 F.3d 597, 600 (5th

Cir. 1994).    “All 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   Amendment   and   its    ‘reasonableness’

standard[.]” Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865,

1871, 104 L.Ed.2d 443 (1989).         The Fourth Amendment’s prohibition

of the use of excessive force by the police against seized persons

had thus been clearly established prior to November 1994.

     Because Anderson requires that “the contours of the right []

be sufficiently clear that a reasonable official would understand


                                     -10-
that what he is doing violates the right,”               483 U.S. at 640, 107 S.

Ct. at 3039, we will examine whether a reasonable police officer in

November 1994 would have known whether hog-tying falls within the

bounds    of    the    Fourth    Amendment’s      prohibition    of    the   use   of

excessive force “in the light of pre-existing law.”                    Id. at 640,

107 S. Ct. at 3039.         As a subset of excessive force claims, in

Garner, the Supreme Court held that police use of “deadly force”

violates the Fourth Amendment unless “the officer has probable

cause to believe that the suspect poses a threat of serious

physical harm, either to the officer or to others[.]”                  471 U.S. at

11, 105 S. Ct. at 1701.           Although guns represent the paradigmatic

example of “deadly force,” Garner failed to address whether other

police tools and instruments can also be characterized as “deadly

force.”        Lower   courts     since    have   struggled     with   whether     to

characterize      various       police   tools    and   instruments    as    “deadly

force.”    See, e.g., Estate of Phillips v. City of Milwaukee, 123

F.3d 586, 593-94 (7th Cir. 1997) (restraint in a prone position);

Quintanilla v. City of Downey, 84 F.3d 353, 357 (9th Cir. 1997)

(police dog); In re City of Philadelphia Litigation, 49 F.3d 945,

966 (3rd Cir. 1995) (bomb); Donovan v. City of Milwaukee, 17 F.3d

944, 949-950 (7th Cir. 1994) (deadman roadblock); Robinette v.

Barnes, 854 F.2d 909, 911-12 (6th Cir. 1988) (police dog).                     These

courts have generally described “deadly force” as force “carry[ing]

with it a substantial risk of causing death or serious bodily

harm.” Robinette, 854 F.2d at 912.                  Although we have not had

occasion to adopt this description, both the Texas statute and SAPD


                                          -11-
procedures in effect in November 1994 employed it.       See TEX. PENAL

STAT. ANN. § 1.07(17); SAPD Procedure 501.03(C) (“‘Deadly Force’

means force that is intended or known by the actor to cause, or in

the manner of its use or intended use, is capable of causing death

or serious bodily injury.”). The Texas statute and SAPD procedures

in effect in November 1994 also conformed to Garner’s holding that

an officer can use “deadly force” only against a suspect who poses

a threat of death or serious physical harm to the officer or to

others. See TEX. CODE CRIM. P. ANN. art. 6.06; SAPD Procedure 501.05

(“An officer uses deadly force only in situations which indicate

that he or another person may be seriously injured or killed if

such deadly force is not used.”).       Accordingly, we find both the

definition of “deadly force” and Garner’s holding to have been

clearly established prior to November 1994.

                                  2

     The   question   thus   becomes    whether   hog-tying   in   these

circumstances creates a substantial risk of death or serious bodily

injury, and hence, becomes deadly force.      Gutierrez relies on the

San Diego Study suggesting that a number of persons in police

custody have died due to SCDS. See San Diego Police Department,

Final Report of the Custody Death Task Force (unpublished, June

1992) (“San Diego Study”).    This Study finds SCDS to be caused by

the combination of (1) drug use, (2) positional asphyxia, (3)

cocaine psychosis, and (4) hog-tying or carotid choke holds. Id. at

6-12.   Gutierrez thus presents sufficient evidence that hog-tying

may create a substantial risk of death or serious bodily injury in


                                 -12-
these circumstances and thereby become deadly force. See Chew v.

Gates, 27 F.3d 1432 (9th Cir. 1994) (suggesting that whether a

given tool or instrument in certain circumstances is “deadly force”

is a question of fact). Assuming this evidence to be true, hog-

tying in these circumstances would have violated law clearly

established prior to November 1994.

                                           B

     To determine the objective reasonableness of Walters and

Solis’ conduct, we examine whether “a reasonable officer could have

believed    [their   conduct]      to     be    lawful,    in   light    of   clearly

established law and the information the [] officers possessed.”

Anderson, 483 U.S. at 641, 107 S. Ct. at 3040.                   We balance “‘the

nature and quality of the intrusion on the individual’s Fourth

Amendment    interests’        against     the    countervailing        governmental

interests at stake.”       Graham, 490 U.S. at 396, 109 S. Ct. at 1871

(quoting Garner, 471 U.S. at 8, 105 S. Ct. at 1699).                           We pay

“careful    attention     to     the     facts    and     circumstances       of   each

particular case, including the severity of the crime at issue,

whether the suspect pose[d] an immediate threat to the safety of

the officers or others, and whether he [was] actively resisting

arrest or attempting to evade arrest by flight.” Id. at 396, 109 S.

Ct. at 1872.    We do not utilize “the 20/20 vision of hindsight,”

id., and we consider “the fact that 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, 109


                                         -13-
S. Ct. at 1872.         Thus, “[e]ven law enforcement officials who

‘reasonably but mistakenly’ [use excessive force] are entitled to

immunity.”      Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534,

536, 116 L.Ed.2d 589 (1991) (quoting Anderson, 483 U.S. at 641, 107

S. Ct. at 3040).

     In arguing that their conduct was objectively reasonable,

Walters and Solis first present the affidavit of Commander Albert

Rodriguez, who states that the official policies of the SAPD, the

Texas     Department    of   Public     Safety,   and     the   International

Association of Chiefs of Police Use of Force Model Policy in

November 1994 did not prohibit the use of hog-ties.                He further

avers that SCDS was not known to reasonably well-trained police

officers in Texas at that time, and that hog-tying was reasonable

under   these    circumstances.    To    counterbalance     this   affidavit,

Gutierrez presents that of Lou Reiter, former Deputy Chief of the

Los Angeles Police Department, who analyzes the facts of this case

and states that Solis and Walters’ use of force and actions were

unreasonable. Claiming that a “battle of the experts” thus exists,

Solis and Walters assert that they are entitled to qualified

immunity    because    “if   officers   of   reasonable    competence   could

disagree on this issue, immunity should be recognized.”             Malley v.

Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096, 89 L.Ed.2d 271

(1986).    We do not believe that the Supreme Court intended by this

statement to mean that summary judgment must be granted in favor of

the police whenever they can find an expert to testify that their

actions were reasonable;         in such a scenario, the police would


                                      -14-
virtually always win summary judgment.                         Moreover, an expert’s

opinion does not establish reasonableness as a matter of law,

especially when directly contradicted by another expert’s well-

supported opinion.2 See Anderson v. Liberty Lobby, Inc., 477 U.S.

242,       106   S.    Ct.    2505,   91     L.Ed.2d     202   (1986)     (holding     that

credibility determinations are to be determined by the trier of

fact, not by the court on a summary judgment motion); 7 Wigmore on

Evidence § 1920, at 18 (Chadborn rev., 1978) (holding that an

expert cannot usurp the jury’s function as a trier of fact because

the jury can choose to reject the expert’s opinion).                        We can still

conclude, of course, that one expert accurately expresses what a

reasonable police officer would do, but we are not forced to so

conclude by the mere presence of an expert’s opinion.

       The officers also point to certain facts that may favor them.

They argue that Gutierrez may have posed a threat to himself,

themselves,           and    the    public    as    he     stumbled      around   in   the

intersection, although they do not argue that he posed a threat of

death or serious physical injury to themselves or to others.                           See

Garner, 471 U.S. at 3, 105 S. Ct. at 1697.                     They further note that

immediately prior to being hog-tied, Gutierrez attempted to kick

the back of the driver’s seat, the metal cage, and the windows of

the    patrol      car       with   his    bare    feet,    and   that    they    believed

Gutierrez’s legs had to be restrained, “for his safety and ours,”

       2
          An analogous issue often arises in cases concerning
possible contract ambiguity.    A contract is not ambiguous just
because one party so claims or because the parties disagree on the
correct interpretation of its terms. See D.E.W., Inc., v. Local 93,
Laborers’ Int’l Union, 957 F.2d 196 (5th Cir. 1992).

                                             -15-
although they concede that at many other points during their

encounter Gutierrez was quiet and nonviolent.    They also note that

the EMS technicians refused to transport Gutierrez because of his

violence, suggesting that they had no alternative but to hog-tie

him in order to transport him.3       Finally, they also argue, and

Gutierrez’s family does not dispute, that they were trying to help

Gutierrez by taking him to the hospital when they hog-tied him, not

to hurt him.

     To counter this summary judgment record evidence, Gutierrez

points to many material disputes of fact.     A material dispute of

fact exists as to whether a reasonable officer would have known of

the first alleged causal factor of SCDS, Gutierrez’s drug use.

Some evidence suggests that Walters and Solis knew that Gutierrez

was under the influence of drugs.     Gutierrez told Walters that he

had used bad cocaine.     His eyes were glassy, his speech was

slurred, and he walked unsteadily, all classic symptoms of drug use

on which the officers received police academy training. Solis also

noted that Gutierrez was “exhibiting that he was high on some type

of drugs.”     Later, after refusing to transport Gutierrez, EMS

Technician Lavin characterized Gutierrez as having psychiatric

problems rather than a reaction to bad drugs, suggesting that as

the encounter progressed, the officers’ perception of Gutierrez as

     3
          The summary judgment record depositions of both Walters
and Solis indicate that a wagon may have been available to
transport Gutierrez, but that they chose not to call a wagon
because they were afraid that Gutierrez might injure himself on the
metal interior of the wagon.     We express no opinion as to the
wisdom of the officers’ decision to transport Gutierrez in a patrol
car rather than in the wagon.

                               -16-
being under the influence of drugs changed to one in which they

concluded they were dealing with a person experiencing psychiatric

problems. Other evidence could lead the jury to either conclusion.

     Another material dispute of fact exists with regard to the

second alleged causal factor of SCDS, positional asphyxia.      The

officers claim they placed Gutierrez on his side with his head

facing the front of the rear seat, while Gutierrez’s family alleges

that they placed him face down on the rear seat.    It is clear that

upon arrival at the hospital, at least, Gutierrez was in a face

down position.    This dispute is critical because the San Diego

Study suggests that SCDS and positional hypoxia allegedly result

when a person is placed in a prone face-down position so that all

of their weight is concentrated on their chest, thereby interfering

with the mechanical process of inhalation and exhalation.       See

Donald T. Reay et al., Positional Asphyxia During Law Enforcement

Transport, 13 Am. J. Forensic Med. Pathology 90 (1992); Donald T.

Reay et al., Effects of Positional Restraint on Oxygen Saturation

and Heart Rate Following Exercise, 9 Am. J. Forensic Med. Pathology

16 (1988).   If the officers placed Gutierrez on his side, however,

no breathing impairment would have been created.4

     In Anderson, the Supreme Court also noted that the information

an officer possesses when that officer takes an action impacts upon


     4
          Even if the jury concludes that the officers placed
Gutierrez on his side, it may still conclude that the officers’
failure to monitor him, see post at 2856, amounted to deliberate
indifference, thereby permitting Gutierrez to roll into a face down
position during the time that the officers transported him to the
hospital.

                                -17-
the objective legal reasonableness of the officer’s conduct. 483

U.S. at 641, 107 S. Ct. at 3040.            A material dispute of fact exists

with regard to whether the SAPD warned its officers of the possible

dangers of hog-tying in these circumstances prior to November 1994.

Walters   and      Solis   present    the    affidavit   of    Commander     Albert

Rodriguez, which we discussed supra at 14-15. The summary judgment

depositions of Walters and Solis also indicate that the SAPD never

informed them that hog-tying was prohibited or of its dangers in

these circumstances.

      Substantial evidence, however, appears to contradict these

assertions.     San Diego mailed copies of San Diego Study to police

departments     around     the   nation,     including   the    SAPD,   in   1992.

Summary judgment record deposition testimony indicates that the

SAPD had this study in its possession at the time of Gutierrez’s

death, putting the SAPD on notice of the possible dangers of hog-

tying in these circumstances.               The Criminal Law Update article,

published in the fall of 1994 by the Texas Office of the Attorney

General, notes that “Texas agencies that have banned the use of

hog-tying include Dallas, San Antonio, Austin, Corsicana, and the

DPS.” See Garth D. Savage et al., Sudden Custody Death Syndrome:

the   Role    of    Hogtying,”       Criminal    Law   Update,    at    11   (Fall

1994)(“Criminal Law Update article”). Although the depositions of

SAPD representatives call into doubt whether the SAPD had indeed

banned hog-tying, just ten days after Gutierrez’s death, SAPD

Captain Benavides sent officers a memo “reminding” them that the

use of a hog-tie on an arrestee was not allowed.                 The use of the


                                        -18-
word “reminding,” particularly in light of the Criminal Law Update

article,    suggests   that   the   SAPD   may   have   either   previously

prohibited its officers from hog-tying arrestees or informed its

officers that in these circumstances, the use of a hog-tie could

prove to be dangerous.    The summary judgment record depositions of

Solis and Walters further establish that the SAPD neither provided

hog-ties to its officers as part of their official equipment nor

trained them in their use.5         It is curious that the SAPD would

condone hog-tying without instructing its officers how to use this

restraint device properly or the dangers associated with it in

these circumstances. Therefore, we find a material dispute of fact

to exist on this issue.       This dispute is important because it may

be difficult to conclude that the officers acted reasonably if they

performed an action that had been banned by their department or of

whose dangers in these circumstances they had been warned.

     Finally, a material dispute of fact exists as to whether

Gutierrez posed a threat of death or serious bodily injury to the

officers or to others.    At various points in the encounter, such as

when the officers initially placed Gutierrez in the patrol car and

drove into a neighboring parking lot, Gutierrez was quiet and

peaceful.    Gutierrez’s family also points out that other police

officers arrived at the scene of the encounter but did not assist


     5
          The depositions of Walters and Solis indicate that
although the SAPD did not offer formal training on the use of hog-
ties, officers used them on a fairly widespread basis. Walters and
Solis each owned hog-ties that they purchased from other police
officers with their personal funds. The hog-tie used on Gutierrez
belonged to Officer Solis.

                                    -19-
Walters and Solis in any way or stick around, thereby suggesting

that the other officers did not consider Gutierrez to be violent.

However, Gutierrez did kick Lavin in the chest, and Lavin’s summary

judgment record affidavit describes Gutierrez as “one of the most

agitated and violent persons that I have ever seen.”                   Moreover,

immediately prior to the hog-tying, Gutierrez was kicking the back

of the driver’s seat, the metal cage, and the windows of the patrol

car with his bare feet, and the depositions of the officers state

that they had to restrain his feet “for his safety and ours.”

      Accordingly, there are many material issues of fact in dispute

which ultimately impinge upon our determination as to whether the

officers employed reasonable force or excessive (and deadly) force

by   the   manner   in   which   they    seized      Gutierrez.   Viewing     these

disputed facts in the light most favorable to Gutierrez, the

summary judgment record shows that the officers knew that Gutierrez

was under the influence of drugs and that they placed him face down

in a prone position.         Further, the record shows that the SAPD

either had prohibited hog-tying or informed its officers of its

dangers in     these     circumstances.        The    record   also   shows   that

Gutierrez did not pose a threat of death or serious physical harm

to the officers or to others, for at least some time, perhaps even

a significant period of time, meaning that the officers were not

justified in using deadly force.

      Other facts bearing heavily against the officers are not in

dispute.    The officers admit that they failed to monitor Gutierrez

as they drove toward the hospital, other than occasionally to check


                                        -20-
to ensure that his bonds were still secure.                   See San Diego Task

Force     Study   at   12     (“The   passenger      officer      should   maintain

observation of the prisoner, monitoring his/her color, breathing

and level of consciousness.”); Criminal Law Update article at 11.

They also concede that the rear of the cruiser was darkened and

that Solis rode beside Walters in the front of the car, rather than

beside Gutierrez where he could have monitored his condition.                   See

San Diego Study, at 12 (“During hours of darkness, an internal

light source should be used in the police vehicle if needed to

provide the passenger officer a clear view of the prisoner at all

times.”).     Neither officer disputes that common and inexpensive

alternatives      to   hog-tying      are   now    and     were   then   available.6

Neither officer disputes that hog-tying has been largely abandoned

by   police   forces     in    most    large      cities    across   the    nation.7

      6
          In Garner, the Supreme Court stated that “[w]e would
hesitate to declare a police practice of long standing
‘unreasonable’ if doing so would severely hamper effective law
enforcement.” 471 U.S. at 19, 105 S. Ct. at 1705 (noting that many
alternative methods are available to apprehend unarmed, non-violent
fleeing suspects other than shooting). Both the San Diego Study
and the Criminal Law Update article point out common and
inexpensive alternatives to hog-ties. One device, called the RIPP
Hobble, consists of a Velcro strap to restrain the arrestee’s feet
and a cord to connect the handcuffs and the Velcro strap. Since
the arrestee’s feet are restrained, the arrestee cannot kick and
must sit upright, a position that allows normal breathing. This
device sells for approximately eight dollars. Criminal Law Update,
at 9-10. The Criminal Law Update article notes that inexpensive
flex-cuffs and plastic ties can be wrapped around an arrestee’s
wrists and ankles and secured to a center post in a patrol car. Id.
at 10.     Assuming arguendo that hog-tying is found to be
unreasonable by a jury, such a finding therefore may not hamper
effective law enforcement.
      7
          In  Garner ,  the Supreme Court explained that in
“evaluating the reasonableness of police procedures under the
Fourth Amendment, we have also looked to prevailing rules in

                                        -21-
Moreover, unlike a rapidly evolving encounter with a potentially

armed suspect in which the officer must react quickly, see, e.g.,

Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991), the officers

had time to contact a supervisor to get advice on how to transport

Gutierrez.   Accordingly, based on the combination of the multiple

factual issues in dispute and the evidence weighing against the

officers, we cannot determine whether Walters and Solis’ conduct

was objectively reasonable as a matter of law.8

     Cases from other circuits, albeit decided subsequently, are

not inconsistent.9   In Estate of Phillips v. Milwaukee, 123 F.3d


individual jurisdictions.” 471 U.S. 15-16, 105 S. Ct. at 1703.
After receiving the San Diego Study, police departments nationwide
began to ban hog-tying.    “At least 70 percent of the nation’s
largest police departments, including Detroit, New York, and Los
Angeles, have banned hog-tying.” Criminal Law Update at 11. The
article also notes that “Texas agencies that have banned the use of
hog-tying include Dallas, San Antonio, Austin, Corsicana, and the
DPS,” id., although, as we noted above, a material dispute of fact
exists as to whether the SAPD had in fact banned hog-tying or
warned its officers of its dangers under these circumstances.
     8
          Walters also argues that he cannot be liable for using
excessive force because Gutierrez’s death did not result “directly
and only from the use of force that was clearly excessive to the
need.” Johnson v. Morel, 876 F.2d 477, 480 (5th Cir. 1989) (en
banc). Assuming, arguendo, that Johnson still has viability, see
Harper v. Harris County, Tex., 21 F.3d 597, 600 (5th Cir. 1994)
(“We now hold that the Johnson standard is no longer valid in the
wake of Hudson v. McMillian. . . .”), Walters’ argument is
misplaced. We recently interpreted the language that Walters cites
only to prohibit compensation for injuries caused by the use of
reasonable force. See Dunn v. Denk, 79 F.3d 401, 403 (5th Cir.
1996) (en banc) (“A trier of the fact can compensate only for the
injury caused by the use of excessive force. There can be no award
for injury caused by reasonable force.”). Hog-tying is asserted to
be excessive force and the addendum to the Autopsy Report lists it
as a contributory cause of Gutierrez’s death. Therefore, we reject
Walter’s argument.
     9
          Objective reasonableness is determined by reference to
the law as it existed at the time the conduct in question took

                               -22-
586 (7th Cir. 1997), two police officers attempted to restrain

Phillips,   an     obese   person    exhibiting   psychiatric    problems    by

lowering him to the floor and handcuffing his arms and legs (but

not together in a hog-tie).         One officer gently put her knee on his

back to keep him from rising while they called for a patrol wagon

to take him for mental observation at a hospital.                The officers

continuously monitored Phillip’s condition, and when he ceased

breathing shortly thereafter, they began resuscitation efforts and

revived him, although he died the next day in a hospital.                   The

coroner    found    that   Phillips’    medical   condition,     obesity    and

positional asphyxia jointly contributed to his death.             The Seventh

Circuit held the officers’ conduct to be objectively reasonable

because merely “restraining a person in a prone position with

constant    monitoring,     cannot    be   characterized,   in    itself,    as

‘deadly’ force.”      Id. at 593-594.        The Seventh Circuit, however,

expressly distinguished this factual situation from one in which

police hog-tie a person who thereby dies, and stated that a

different outcome might have resulted had Phillips been hog-tied.

Id.   The court also noted that Phillips’ medical problems were not

observable to the naked eye, and that the officers continuously

monitored him and quickly began resuscitation efforts.

      Similarly, in Mayard v. Hopwood, 105 F.3d 1226, 1227-28 (8th

Cir. 1997), the Eighth Circuit held police officers’ use of a hog-

tie to be objectively reasonable.             When Mayard, the arrestee,


place. See Harlow, 457 U.S. at 818-819, 102 S. Ct. at 2738-39. We
accordingly discuss these cases only to show that they reach
similar results.

                                      -23-
became more    and   more   violent,   the   police   handcuffed   her   and

attempted to place her in a patrol car.       Once in the car, she began

kicking and hitting an officer, to which the officers responded by

hog-tying her.   Without much explanation, the Eighth Circuit held

the officers’ conduct to be objectively reasonable, “particularly

. . . in light of Mayard’s resistance.” Id. at 1228.          The opinion

does not state, however, whether she was under the influence of

drugs, whether she was placed face-down, or whether she died as a

result of being hog-tied.

     Finally, in Price v. San Diego, 1998 WL 1607 (S.D. Cal. Jan.

8, 1998), a drug-affected arrestee died in police custody after an

intense struggle that concluded with the police hog-tying him and

placing him in a face-down position.         The plaintiffs in that case

relied on the San Diego Study and the research of Dr. Donald T.

Reay, as does Gutierrez’s family in this case.         The district court

noted that a recent study calls the validity of Dr. Reay’s research

into question.       See Tom Neuman et al., Restraint Position and

Positional Asphyxia, 30 Annals of Emergency Med. 578 (1997).             The

court further noted that the persuasiveness of Dr. Neuman’s study

led even Dr. Reay to concede that hog-tying is “physiologically

neutral.”    Id. at *5.     Accordingly, the district court dismissed

all excessive force claims against the officers because “little

evidence is left that suggests that the hogtie restraint can cause

asphyxia.”    Id. at *4.    Because Dr. Neuman’s study is not part of

the summary judgment record in this case and Walters and Solis have

not presented it to this court, however, we have not considered it


                                  -24-
in deciding whether their actions were objectively reasonable. See

Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 (5th Cir. 1992);

Fields v. City of South Houston, 922 F.2d 1183, 1188 (5th Cir.

1991) (quoting John v. Louisiana, 757 698, 710 (5th Cir. 1985))

(“[M]aterials not presented to the district court for consideration

of a motion for summary judgment are never properly before the

reviewing court.”).

       In conclusion, our holding today is very limited.              Both the

San Diego Study and Criminal Law Update article suggest hog-tying

may present a substantial risk of death or serious bodily harm only

in a limited set of circumstances))i.e., when a drug-affected

person in a state of excited delirium is hog-tied and placed face

down in a prone position.          San Diego Study at 6-10; Criminal Law

Update at 7.      Whether these circumstances exist in this case is

unclear because of the many material disputes of fact.                Based on

the disputed facts and undisputed facts not favoring the officers,

we     cannot   determine    whether     their   conduct     was    objectively

reasonable.     Assuming this case proceeds to trial, however, a very

different picture may result than the one painted by the summary

judgment record because Gutierrez must prove the issues that this

opinion assumes in his favor, and the jury can choose to credit

certain facts over others, which we cannot do in reviewing a denial

of summary judgment. See Spann v. Rainey, 987 F.2d 1110, 1116 (5th

Cir.    1993)   (noting     that   a    different   result    may    occur   on

interlocutory appeal from a denial of qualified immunity and at

trial because the plaintiff bears the burden of proving facts that


                                       -25-
we consider in the light most favorable to him).                    Accordingly, we

dismiss the officers’ appeal from the district court’s denial of

summary judgment on Gutierrez’s Fourth Amendment claim for lack of

jurisdiction.10        See Hale v. Townley, 45 F.3d 914, 918 (5th Cir.

1995) (dismissing interlocutory appeal on a denial of summary

judgment on an excessive force claim because disputed material

issues of fact made it impossible to determine whether officers’

conduct was objectively reasonable); see also Naylor v. State of

La, Dep’t of Corrections, 123 F.3d 855, 857 (5th Cir. 1997); Harper

v. Harris County, 21 F.3d 597, 602 (5th Cir. 1994).

                                            V

     The district court also denied summary judgment on Gutierrez’s

Fourteenth Amendment claim.              “All 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    Amendment    and   its

‘reasonableness’ standard, rather than under a ‘substantive due

process’ approach.”            Graham, 490 U.S. at 395, 109 S. Ct. at 1871

(emphasis      in    original).     While       the    Fourth    Amendment   protects

arrestees, once an arrest is complete, pretrial detainees are

protected by the due process clause of the Fifth or Fourteenth

Amendments.     See Brothers v. Klevenhagen, 28 F.3d 452, 455-56 (5th

Cir. 1994); Valencia v. Wiggins, 981 F.2d 1440, 1445 (5th Cir.

1993).    Although the point at which an arrest ends and pretrial

     10
          Because disputes of material fact prevent us from
determining the objective reasonableness of the officers’ conduct,
we do not reach their other arguments.

                                         -26-
detainment begins is not always clear, see Valencia, 981 F.2d at

1449 n.44, we have held that the Fifth or Fourteenth Amendments

begin to      protect   persons    “after     the   incidents   of   arrest   are

completed, after the plaintiff has been released from the arresting

officer’s custody, and after the plaintiff has been in detention

awaiting trial for a significant period of time.” Id. at 1443-43

(emphasis in original). Thus, in Brothers, we found Brothers to be

a pretrial detainee protected by the Fourteenth Amendment where he

had been arrested, processed by the police department, and spent

several hours in jail before the police allegedly used excessive

force on him.     28 F.3d at 452.

     Walters      and   Solis     seized      Gutierrez’s    person,     thereby

triggering his Fourth Amendment protections.             Shortly thereafter,

Solis   and    Walters,    the    very     officers    who   initially   seized

Gutierrez, hog-tied him.          The hog-tying also occurred relatively

close to the spot where the officers seized Gutierrez.               Therefore,

we find that Gutierrez enjoyed the protections of the Fourth

Amendment.     After a thorough review of Gutierrez’s complaint, we

find his Fourteenth Amendment claim to be based on the officers’

alleged use of excessive force, an alternative basis for recovery

to the Fourth Amendment claim.           We accordingly vacate and render a

take nothing verdict on the Fourteenth Amendment claim.                       See

Graham, 490 U.S. at 395, 109 S. Ct. at 1871.

                                         VI

     For the foregoing reasons, we DISMISS Walters and Solis’

appeal of Gutierrez’s Fourth Amendment claim and VACATE and RENDER


                                      -27-
a take nothing verdict on his Fourteenth Amendment claim.




                              -28-
