DALLAS - The federal civil rights trial of four Dallas police officers in the death of Tony Timpa will move forward.
The Fifth Circuit Court of Appeals has cleared the way for the case to proceed after refusing to hear additional arguments.
Timpa died in police custody in August 2016 after being placed in the prone restraint position for more than 14 minutes.
The city could decide to petition the U.S. Supreme Court to hear the case. But even if it does, it won't stop movement towards a jury hearing and seeing the evidence and deciding liability.
"It was a great big victory. Not just the fact that we won, but how we won it," said attorney Geoff Henley.
The Fifth Circuit in New Orleans denied the request by the city of Dallas for the entire appeals court to hear arguments to dismiss the case after a three judge panel ruled the officers had no qualified immunity from a wrongful death lawsuit.
Henley represents Timpa's mother and says the Fifth Circuit has sent a message.
"Number one – positional asphyxia can be deadly force. Number two – we are going to make you own up to your training, that if your training says do this, you don't get to disavow or not take it seriously and hope that the constitution will bail you out," Henley said.
Timpa called 911 for help in the middle of a mental health episode, off of his meds and on cocaine. Body-worn cameras recorded the officer's actions at a bus stop on Mockingbird Lane. He was placed in the prone position with an officer's weight on his neck and upper back for more than 14 minutes.
The appeals court says he was no longer resisting after nine minutes and that the continued use of force was not only excessive but ultimately deadly.
Attorney Russell Wilson, who is not involved in the case, reacted to the decision.
"[It] suggests that these officers should have very well known that their actions could have resulted in death or serious bodily injury to Mr. Timpa and they had an opportunity to terminate it and didn't do so," he said. "The courts are going to closely scrutinize situations involving death where police officers use of force or use of restraints are involved."
Wilson, as a former prosecutor, investigated these types of cases in the D.A.'s office. Now in private practice, he's also served as special prosecutor and won convictions in excessive force cases in the past two years. Times, he says, have changed.
"Certainly George Floyd was the impetus. But you go all the way back to Ferguson, Missouri," he said. "I think we're going to see changes coming not only from law enforcement, but from the legal system. You're going to see a change in the response, you're going to see less tolerance."
Henley said he expects the appeals court to issue a mandate that will push the case back to a Dallas-area trial court. He hopes for a trial to take place in four to six months.