The U.S. Court of Appeals for the Tenth Circuit has affirmed the dismissal of federal constitutional claims brought against a Colorado Springs Fire Department paramedic and a Colorado Springs police officer arising from the 2022 death of a man experiencing a mental health crisis.
As we reported previously, the lawsuit was filed by the estate of Kevin Dizmang, who died following an encounter with members of a Colorado Springs Police Department Crisis Response Unit. The unit consisted of Police Officer Sean Reed, Colorado Springs Fire Department Paramedic Nicholas Fischer, and a civilian clinician.
According to the complaint, police received reports on November 15, 2022, that Dizmang was displaying symptoms associated with schizophrenia and post-traumatic stress disorder, had damaged his vehicle, and was walking in traffic. When Officer Reed and Paramedic Fischer arrived, they found Dizmang bent over on a sidewalk before he walked into a two-lane roadway.
Officer Reed repeatedly instructed Dizmang to sit down or place his hands behind his back. Dizmang briefly said, “help me,” but continued walking in the roadway. Reed made several attempts to take Dizmang into custody, but Dizmang repeatedly broke free and continued walking away.
After Dizmang fled toward a line of trees near a mobile home park, the clinician directed Paramedic Fischer to assist in restraining him. Fischer restrained Dizmang, rolling him face-down and applying his body weight to Dizmang’s neck and upper body while Officer Reed completed the handcuffing. The complaint alleges that Dizmang stopped moving during the restraint and remained motionless until he was rolled onto his back after being handcuffed.
Once Dizmang became unresponsive, Fischer immediately noted that he was not breathing normally, requested equipment to establish an airway, and Officer Reed called for an ambulance. Resuscitation efforts continued during transport and at the hospital, where Dizmang was pronounced dead.
The estate filed suit under 42 U.S.C. § 1983, alleging that Paramedic Fischer used excessive force in violation of the Fourth Amendment, that Officer Reed failed to intervene, and that Fischer was deliberately indifferent to Dizmang’s medical needs in violation of the Fourteenth Amendment. The complaint also asserted related state-law claims.
The district court dismissed the federal constitutional claims, concluding that both defendants were entitled to qualified immunity on the Fourth Amendment claims and that the Fourteenth Amendment deliberate indifference claim had been abandoned. The court declined to exercise supplemental jurisdiction over the state-law claims.
On appeal, the Tenth Circuit affirmed.
With respect to the excessive force claim against Paramedic Fischer, the court focused on whether the estate had identified clearly established law that would have placed Fischer on notice that his conduct violated the Constitution. Rather than deciding whether Fischer’s actions constituted an unreasonable seizure under the Fourth Amendment, the court resolved the appeal on the second prong of the qualified immunity analysis, concluding that the estate had failed to demonstrate that any clearly established precedent governed the facts presented.
According to the opinion, Fischer restrained Dizmang for approximately 81 seconds while Officer Reed completed the handcuffing process. During the first portion of that time, Dizmang appeared to be resisting. Once the handcuffs were applied, Fischer and Reed rolled Dizmang into a seated position. Because the force was applied while Reed was attempting to restrain Dizmang and ended once he was handcuffed, the court concluded Fischer’s conduct did not violate any clearly establish that Fourth Amendment principle.
Turning to the claim against Officer Reed, the court noted that the district court had ruled Reed was entitled to qualified immunity because it was not clearly established that a police officer had a constitutional duty to intervene in “a paramedic’s unsolicited use of force.” On appeal, however, the estate advanced a different legal theory based upon an alleged custodial relationship under the Fourteenth Amendment rather than defending its original Fourth Amendment failure-to-intervene claim. The court concluded that the original claim had therefore been waived.
The court likewise affirmed dismissal of the deliberate indifference claim against Paramedic Fischer. It agreed with the district court that the estate had abandoned that claim.
The Tenth Circuit therefore affirmed the dismissal of all federal constitutional claims against both defendants. The estate’s state-law claims were not before the appellate court because the district court had previously declined to exercise supplemental jurisdiction over them.
