United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED July 18, 2023 No. 22-20341 Lyle W. Cayce Clerk

Shamarian Austin, Dependent Administrator of the Estate of Jamal Ali Shaw, Deceased; Donna Thomas; Cliff Benjamin Mitchell,

Plaintiffs—Appellants,

versus

City of Pasadena, Texas; Martin E. Aguirre; Joanna S. Marroquin; Darlene McCain, also known as Rita M. McCain; Ryan W. Whitehead,

Defendants—Appellees.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21-CV-774

Before Higginbotham, Southwick, and Willett, Circuit Judges. Leslie H. Southwick, Circuit Judge: Plaintiffs claim law enforcement officers violated the Constitution when they responded to a detainee’s epileptic seizure in a jail cell by restraining and tasing him several times. The district court either dismissed or granted summary judgment on all claims in favor of the Defendants. We REVERSE the grant of qualified immunity for the individual Defendant- Officers as to the Section 1983 claims, and the grant of summary judgment Case: 22-20341 Document: 00516824791 Page: 2 Date Filed: 07/18/2023

No. 22-20341

on the claims for bystander liability. We AFFIRM the grant of summary judgment on municipal liability and on the claims under the Americans with Disabilities Act and Rehabilitation Act. FACTUAL AND PROCEDURAL BACKGROUND At 2:33 a.m. on March 28, 2019, Pasadena Police Department Officer L. Arguetta arrested 32-year-old Jamal Ali Shaw for suspicion of public intox- ication. Officer Arguetta booked Shaw into the Defendant City of Pasadena jail. At 6:07 a.m., Pasadena Police Service Officer (“PSO”) 1 Joanna Marro- quin placed Shaw into detention Cell H without incident. Cell H is a holding cell for detainees held on Class-C misdemeanors, typically traffic warrants, awaiting a court appearance. A video recording 2 shows that, around 6:15 a.m., Shaw fell to the floor due to an epileptic seizure. Other detainees in Cell H alerted staff that Shaw was having a seizure. At around 6:16 a.m., Marroquin observed Cell H and made a call on the police radio requesting emergency medical services (“EMS”). PSO Ryan Whitehead and Marroquin then entered Cell H and removed all detainees other than Shaw. At 6:17 a.m., Marroquin and Whitehead entered Cell H. Shaw initially was lying on his side. He was making up and down movements with his head, convulsing, and foaming at the mouth. Shaw then rolled onto his back. After standing over Shaw’s convulsing body for about a minute, Marroquin and Whitehead placed their hands on Shaw’s back and shoulder. The district

1 Although Defendant-Officers Whitehead, Marroquin, and McCain have the title “Police Service Officer” or “PSO,” they are civilian employees and are neither licensed peace officers nor licensed jailers. 2 Defendants’ Exhibit 9 collects 15 videos. Most of the relevant events inside Cell H, from 6:15:15 to 6:27:50, are captured in a single video.

2 Case: 22-20