Agster

MEMORANDUM **

We consolidate these two appeals arising from the same set of facts. To obtain our jurisdiction, all the appellants concede for purposes of the appeal the Agsters’ statement of facts and contend that they are still entitled to qualified immunity.

Sheriff Arpaio is more than correct in his contention. He has not waived his claim to such immunity, as the claim was ruled on by the district court. The immunity follows here, a fortiori, from absence of any probative evidence of his part in the alleged abuse. The evidence of his braggadocio offered by Agster does not tie him to any action of his deputies pointed to by Agster. Swagger in print is not actionable if acts cannot be traced to it. Arpaio is entitled to be freed from liability for any federal tort.

The deputies present a different picture. As the Agsters present the facts, their actions were a cause of the death of their son Charles. The deputies restrained him to the point of positional asphyxia. Arrested on a misdemeanor charge of trespass, manacled and surrounded by officers in the jail, this small-sized, drug-depleted man was endangering neither the officers nor himself but was uncooperative. His lack of…