A federal judge has concluded that a Colorado Springs paramedic and police officer could not be held liable for their roles in restraining a man in mental health crisis, leading to his death.

U.S. District Court Judge Charlotte N. Sweeney determined Sean Reed and Nick Fischer were entitled to qualified immunity, which is a judicial doctrine shielding government employees from civil lawsuits unless they violate a person’s clearly established legal rights.

The lawsuit at hand revolved around the claim that Fischer, the paramedic, used excessive force on Kevin Dizmang in violation of the Fourth Amendment’s prohibition on unreasonable seizures. Reed, the officer, allegedly failed to intervene to stop Fischer’s unlawful seizure.

But Sweeney concluded no prior decisions from either the U.S. Supreme Court or the Denver-based U.S. Court of Appeals for the 10th Circuit established that a paramedic could “seize” someone. Consequently, neither defendant’s actions were clearly unconstitutional.

“Plaintiff cites no authority holding that a medical professional’s restraint of a person in an emergency medical situation constitutes a Fourth Amendment seizure, or any authority holding that similar conduct was a seizure in analogous circumstances,” she wrote in a Feb. 28 order.

Sweeney’s conclusion raised the eyebrows of some civil rights attorneys, including the lawyer who represented Dizmang’s surviving daughter in her constitutional rights lawsuit.

Attorney Harry M. Daniels said he relied on a 2008 ruling of the 10th Circuit, in which the court said it did not need a “decision with identical facts to establish clearly that it is unreasonable to use deadly force when the force is totally unnecessary to restrain a suspect or to protect officers, the public, or the suspect himself.” Daniels said that case should have been sufficient to allow the lawsuit over Dizmang’s death to proceed.

“We believe the judge got it wrong,” he said, “and we look forward to appealing this matter to the 10th Circuit.”

Elizabeth Wang, an attorney not involved in the case, also criticized Sweeney’s conclusion based on a 2021 Supreme Court decision — which arose from the 10th Circuit — defining a “seizure” as the “application of physical force to the body of a person with intent to restrain.”

“Period, full stop,” she said. “Under this clearly established and controlling law, Fisher’s restraint of Mr. Dizmang was clearly a seizure. It is irrelevant that Fisher was a paramedic, and it is irrelevant what Fisher’s subjective intentions were. It was a seizure, plain and simple.”

Dizmang’s daughter alleged in her lawsuit that her father was potentially having a psychotic breakdown on Nov. 15, 2022. He may have damaged his own property and was possibly attempting suicide by walking into traffic near his home on Mount View Lane.

A crisis response team arrived, consisting of Reed, Fischer and a licensed clinician. After Dizmang wandered into the street again and said, “help me,” Reed attempted to handcuff Dizmang. But Dizmang pulled away and walked into an area with trees while in an “obviously stressed and panicked state.”

At that point, Fischer allegedly tackled Dizmang and put him in a chokehold. Reed handcuffed Dizmang and Dizmang allegedly stopped moving. Fischer continued to put his weight on Dizmang before rolling him into a seated position. Reed summoned an ambulance and Dizmang remained handcuffed and unresponsive for seven minutes.

He died at the hospital. The lawsuit quoted from body-worn camera footage, in which Fischer said it was his “first time taking someone down with this job” and it was like “high school football.”

Reed and Fischer moved to dismiss the constitutional claims against them. In part, they argued it was not clear that Fischer, a paramedic, would violate the Fourth Amendment by seizing Dizmang, nor would Reed violate it by failing to intervene.

“As Fischer is not a law enforcement officer, he could not affect a Fourth Amendment seizure,” wrote Sara L. Cook, an attorney for Reed. “As such, where the excessive force at issue is not applied by a fellow law enforcement officer, there is no constitutional violation for which a law enforcement officer would have a duty to intervene.”

Daniels, the plaintiff’s attorney, responded in part that Fischer “assumed a law enforcement role at the time he tackled Kevin.” Therefore, the case should proceed.

Sweeney sided with the defendants.

“Plaintiff has cited no case in the Tenth Circuit or U.S. Supreme Court discussing whether, or in what circumstances, a paramedic can effectuate a Fourth Amendment seizure,” she wrote. 

Sweeney acknowledged that other courts have looked at whether medical responders are “acting in a law enforcement capacity.” But it was “clear that Mr. Dizmang needed treatment and that Defendant Fischer was attempting to fulfill his role as a treatment provider,” she added.

Because it was unclear that Fischer could be liable for excessive force as a paramedic, Sweeney granted qualified immunity to both defendants. She declined to analyze the related claims alleging violations of the Colorado Constitution, for which qualified immunity is not available. Daniels said he intended to refile those claims in state court.

Attorneys for the defendants did not immediately respond to a request for comment.

The case is Estate of Dizmang v. Reed et al.