“Subdued” Does Not Mean “Handcuffed”: First Circuit Extends the Clearly Established Prohibition on Prone Compression to the Pre-Cuffing Phase

Introduction

In Miller v. Roycroft, No. 24-1351 (1st Cir. Sept. 10, 2025), the First Circuit confronted a tragic death following a police response to a mental-health call on Cape Cod. The case centers on the limits of qualified immunity in an excessive-force suit under 42 U.S.C. § 1983. The decedent, Robert Miller, died after a brief struggle in which officers took him to the ground, applied weight while he was prone, and handcuffed him. The district court denied qualified immunity in part, and the officers took an interlocutory appeal.

Two core issues drove the appeal:

Whether, at the time of the 2019 incident, clearly established law prohibited officers from placing significant body weight (including a knee) on the back of a prone person who is subdued but not yet handcuffed; and
Whether the First Circuit could entertain fact-dependent arguments about the officers’ precise conduct on interlocutory review.

The First Circuit’s opinion draws an analytically important distinction between two brief “phases” of force: (1) the moments after the men fell, when Officer Roycroft’s left arm was pinned under Miller and he applied forearm pressure to keep Miller’s chest down; and (2) the ensuing moments, once Roycroft’s arm was free and the officers applied a knee to Miller’s back while moving to cuff him. The court ultimately reversed in part, affirmed in part, and dismissed in part—clarifying the reach of prior circuit precedent (especially McCue v. City of Bangor) and sharpening the contours of interlocutory appellate jurisdiction.

Summary of the Opinion

Jurisdictional posture: The appeal is interlocutory from a partial denial of qualified immunity. The First Circuit may resolve purely legal issues but not fact disputes (Johnson v. Jones).
Phase One (forearm pressure while Roycroft’s arm was pinned): Reversed. The court held there was no clearly established law that would have alerted a reasonable officer that the specific “immobilized arm” scenario—forearm pressure on a prone person while the officer’s own arm is trapped beneath the suspect—was unconstitutional. McCue and Abdullahi did not squarely cover this distinct factual posture.
Phase Two (knee on back after Roycroft’s arm was free, during handcuffing): Affirmed. The court held that McCue’s clearly established rule—prohibiting significant, continued force on a prone, subdued/incapacitated person—applies even before handcuffs are secured. “Subdued” is a functional concept, not synonymous with “handcuffed.” The panel relied on McCue and its embrace of Abdullahi.
Jackson’s duty to intervene: The court affirmed the district court’s denial of qualified immunity at this stage as to Phase Two, citing fact disputes and waiver/skeletal briefing problems. For Phase One, there was no duty to intervene because there was no clearly established violation by Roycroft during that phase.
Fact-based arguments dismissed: To the extent the officers’ arguments depended on contesting the plaintiff-friendly version of disputed facts (e.g., whether and for how long a knee was used, whether Miller said “I can’t breathe,” whether he posed a threat), the court dismissed those issues as beyond interlocutory jurisdiction.
Disposition: Reversed in part (Phase One), affirmed in part (Phase Two), dismissed in part (fact-based contentions), and remanded. No appellate costs awarded. The separate state-law wrongful-death claim was left for the district court to sort out on remand in light of the mixed outcome.

Analysis

Precedents Cited and Their Role

Graham v. Connor, 490 U.S. 386 (1989): Establishes the objective reasonableness test for excessive-force claims and the familiar factors: severity of the crime, immediate threat, and resistance. The district court applied these factors; the First Circuit focused its analysis on the “clearly established” prong, as permitted by Pearson.
Pearson v. Callahan, 555 U.S. 223 (2009): Authorizes courts to decide qualified immunity on either prong (constitutional violation or clearly established law) in any order. The First Circuit resolved portions on the clearly established prong without deciding the underlying violation for Phase One.
Dist. of Columbia v. Wesby, 583 U.S. 48 (2018); Ashcroft v. al-Kidd, 563 U.S. 731 (2011): Reinforce that clearly established law typically requires controlling precedent or a robust consensus on similar facts placing the issue beyond debate.
Johnson v. Jones, 515 U.S. 304 (1995): Limits interlocutory appeals to pure questions of law. The First Circuit leaned on Johnson to dismiss fact-bound contentions (e.g., duration/degree of knee pressure; whether Miller was resisting or struggling to breathe).
McKenney v. Mangino, 873 F.3d 75 (1st Cir. 2017); Brown v. Dickey, 117 F.4th 1 (1st Cir. 2024); Morse v. Cloutier, 869 F.3d 16 (1st Cir. 2017): Detail First Circuit practice on interlocutory jurisdiction and the distinction between legal and factual disputes. The panel invoked these authorities to cabin its review to legal issues and to reject attempts to re-frame the facts.
McCue v. City of Bangor, 838 F.3d 55 (1st Cir. 2016): The linchpin. McCue held that by 2012 it was clearly established that “exerting significant, continued force on a person’s back while that person is in a face-down prone position after being subdued and/or incapacitated constitutes excessive force.” McCue relied on Seventh Circuit precedent (Abdullahi) to flesh out the rule.
Abdullahi v. City of Madison, 423 F.3d 763 (7th Cir. 2005): A key exemplar embraced by McCue. Abdullahi denied qualified immunity where an officer placed knee/shin weight on the back/shoulder of a prone person for 30–45 seconds. Crucially for this case, the pressure occurred before handcuffing was complete, and the court recognized that what looked like “squirming” could be a “futile attempt to breathe.”
Taylor v. City of Milford, 10 F.4th 800 (7th Cir. 2021): Supports the proposition that applying body weight to keep a non-resisting, prone, uncuffed person immobilized can violate clearly established law (cited as consistent with McCue’s principles).
Davis v. Rennie, 264 F.3d 86 (1st Cir. 2001): Establishes a duty to intervene when an officer witnesses excessive force and has a realistic opportunity to prevent it. The First Circuit applied Davis to sustain the failure-to-intervene claim against Jackson for Phase Two, given unresolved fact disputes and briefing deficiencies.
Brosseau v. Haugen, 543 U.S. 194 (2004); Saucier v. Katz, 533 U.S. 194 (2001): Emphasize that qualified immunity protects all but the plainly incompetent or those who knowingly violate the law; courts avoid penalizing reasonable misapprehensions in “hazy” legal areas.
Hope v. Pelzer, 536 U.S. 730 (2002): The unlawfulness of conduct can be clearly established by a robust body of case examples, even absent a case on all fours.
Practice and briefing principles: The opinion also leans on the party-presentation rule (United States v. Sineneng-Smith, 590 U.S. 371 (2020)), waiver for skeletal arguments (United States v. Zannino, 895 F.2d 1 (1st Cir. 1990); Págan-Lisboa v. SSA, 996 F.3d 1 (1st Cir. 2021)), and preservation rules (Holsum de P.R., Inc. v. ITW Food Equip., 116 F.4th 59 (1st Cir. 2024)).

Legal Reasoning

1) Framing the dispute in “Phase One” and “Phase Two”

The First Circuit adopted the district court’s temporal segmentation to isolate the distinct legal questions:

Phase One: Immediately after the fall, Officer Roycroft’s left arm was trapped beneath Miller, and Roycroft used his right forearm and partial body weight to prevent Miller from pushing up. Jackson delivered two body blows (the second freeing Roycroft’s arm).
Phase Two: After Roycroft’s arm was freed, one officer (disputed which) placed a knee into Miller’s back while the officers pulled Miller’s arms behind him and applied handcuffs. During this interval, a witness heard Miller say, “I can’t breathe,” and the officers were trained on positional asphyxia risks.

2) Phase One: No clearly established prohibition in the “immobilized officer” scenario

The court held that neither McCue nor Abdullahi—or any other controlling or consensus authority—put officers on notice that the specific Phase One configuration was unconstitutional. Those cases involved officers applying compressive weight to a prone person without the officer being physically immobilized by the suspect. Here, by contrast, Roycroft’s left arm was pinned beneath Miller; his use of forearm pressure to prevent Miller from pushing up occurred as he was himself trapped.

Because qualified immunity requires precedent with sufficiently similar facts to place the illegality “beyond debate,” the First Circuit concluded that a reasonable officer would not have had clear notice that Phase One conduct crossed the line. Accordingly, qualified immunity applies to Phase One. And because there was no clearly established violation during Phase One, Jackson had no corresponding duty to intervene in that phase.

3) Phase Two: McCue applies pre-handcuffing; “subdued/incapacitated” is functional, not formal

The officers argued that McCue’s rule applies only once a suspect is handcuffed—i.e., that “subdued and/or incapacitated” means “already in cuffs.” The First Circuit squarely rejected that legal premise. It emphasized that McCue embraced Abdullahi as a “textbook example” of unconstitutional prone compression before handcuffing was complete. Thus, the clearly established rule against “significant, continued” force on the back of a prone, subdued/incapacitated person applies even when the person has not yet been cuffed.

That holding is the opinion’s most significant clarification: handcuffs are not the bright-line marker for when prone compression becomes clearly excessive. The operative question is whether, under the circumstances, the person is subdued or incapacitated such that continued compressive force is unreasonable. On the plaintiff-favorable record, a reasonable jury could find that Miller was subdued/incapacitated and struggling to breathe (not resisting), and that an officer applied knee pressure to his back long enough to qualify as “significant, continued” force.

4) Interlocutory jurisdiction and fact disputes

The panel repeatedly enforced the Johnson v. Jones boundary. Several of the officers’ appellate arguments hinged on factual premises the district court expressly identified as disputed—such as:

Which officer placed a knee on Miller’s back;
Whether a knee was used at all and, if so, for how long and with what pressure;
Whether Miller’s movements were resistance or efforts to breathe;
Whether Miller posed an immediate threat or had ready access to a weapon like a golf club; and
Whether witness statements (“I can’t breathe”) should be credited.

Because interlocutory review cannot reweigh evidence or resolve credibility, the court declined to entertain these points. The court also noted briefing defects: some arguments were “skeletal,” confusingly framed, or raised only in reply, and were treated as waived.

5) Duty to intervene (Phase Two)

Under Davis v. Rennie, officers have a duty to intervene when they see excessive force and have a realistic opportunity to prevent it. Given the fact disputes about what Jackson observed, how long the compressive force lasted, and whether he could have acted to stop it, the First Circuit affirmed the district court’s decision to send the failure-to-intervene claim (as to Phase Two) to a jury. By contrast, the Phase One duty-to-intervene claim falls with the Phase One qualified immunity holding.

Impact

This decision carries several important implications for policing, civil litigation, and appellate practice in the First Circuit:

Pre-handcuffing prone compression is clearly established excessive force when the person is already subdued/incapacitated: The opinion removes any doubt that McCue’s rule is not confined to post-handcuffing moments. Handcuffs are not a legal prerequisite; the focus is the suspect’s actual level of control/subdual and the nature, duration, and significance of compressive force.
Training and policies: Agencies should reinforce policies that:
- Minimize or avoid body-weight compression on the backs of prone subjects;
- Promptly reposition prone subjects (e.g., to side recovery) once control is gained;
- Respond to and monitor breathing distress statements (“I can’t breathe”) as medical emergencies; and
- Document and supervise handcuffing tactics that may involve transient body-weight use, ensuring they are brief, justified, and medically responsive.
Mental-health calls: The case arose from a welfare call with no reported crime. Agencies should ensure de-escalation and medical-first frameworks are applied in non-criminal contexts, especially with older or at-risk individuals, to reduce reliance on prone restraint.
Litigation strategy: Defendants should separate legal from factual arguments on interlocutory appeal. Fact-heavy disputes over duration/pressure, witness credibility, or subject resistance will typically be dismissed for lack of jurisdiction.
“Immobilized officer” carve-out is narrow: The Phase One ruling underscores that unusual configurations—like an officer physically pinned—may fall outside clearly established case law. But once that constraint lifts (as in Phase Two), McCue/Abdullahi provide clear notice regarding prone compression.
Duty to intervene alive and well: Davis remains robust. Where an officer has time and opportunity to recognize and stop excessive prone compression, failure-to-intervene claims will likely proceed to trial if the record supports those inferences.
Wrongful-death claims: The district court tied the state wrongful-death claim to the excessive-force claim. This mixed qualified immunity outcome may prompt renewed motion practice on remand to align the tort claim with the surviving Phase Two theory and any factual developments at trial.

Complex Concepts Simplified

Qualified immunity: A defense shielding government officials from damages unless they violate a constitutional right that was clearly established at the time of conduct such that every reasonable officer would know it was unlawful.
Clearly established law: Typically requires precedent with sufficiently similar facts from controlling courts (or a strong consensus) that put the constitutional line “beyond debate.” The Supreme Court discourages defining rights at a high level of generality.
Interlocutory appeal (Johnson v. Jones rule): In qualified immunity cases, defendants can immediately appeal legal rulings denying immunity. But appellate courts cannot resolve disputes about what actually happened; those go to a jury.
Prone restraint/positional asphyxia: Placing a person face-down and applying body weight on the back or shoulders can restrict breathing. Police training often instructs officers to minimize such pressure and to reposition quickly, especially when a subject shows respiratory distress.
Subdued/incapacitated vs. handcuffed: “Subdued” is a functional state—when a person is under control and not actively resisting. A person may be subdued before handcuffs are applied, and excessive compressive force can still be unlawful even pre-handcuffing.
Duty to intervene: An officer who sees a colleague using excessive force, has a realistic chance to stop it, and has time to do so, must intervene. Failure can lead to liability.

Conclusion

Miller v. Roycroft refines First Circuit law in two important ways. First, it confirms that the clearly established prohibition on significant, continued body-weight pressure on a prone person applies when the person is subdued or incapacitated—even before handcuffs are secured. Second, it recognizes a narrow carve-out for unusual “immobilized officer” circumstances in which prior cases do not supply clear notice, preserving qualified immunity for Phase One here.

The court also strongly polices the line between appealable legal issues and unreviewable fact disputes at the interlocutory stage, signaling to litigants that arguments about “what really happened” must await trial. For policing, the message is direct: avoid sustained compressive force on the backs of prone, controlled subjects, respond to breathing distress, and be prepared to intervene when colleagues cross the line. For courts and counsel, the opinion offers a careful roadmap for segmenting use-of-force events, applying McCue and Abdullahi, and structuring qualified immunity appeals.