Civil Liability
of Law Enforcement Agencies & Personnel

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Public Protection: Ill Persons

     Monthly Law Journal Article: Public Protection - Part 1: The Physically Ill, 2013 (5) AELE Mo. L. J. 101.
     Monthly Law Journal Article: Public Protection: Part Two – The Mentally Ill or Deranged, 2013 (6) AELE Mo. L. J. 101.

     A man suffered a diabetic emergency. Paramedics encountering him found him to be extremely disoriented and combative. His blood-sugar level tested extremely low at 38. As blood sugar falls, a person may lose consciousness, become combative and confused, or suffer a seizure. A blood-sugar level of 38 is regarded as a medical emergency and, untreated, can lead to death. A deputy sheriff arrived on the scene as the paramedics were attempting to intravenously administer dextrose to raise the man’s blood-sugar level to a more acceptable level. The man then ripped the catheter from his arm, causing blood to spray, and continued to kick, swing, and swear as they tried to restrain him. The deputy then used his Taser in stun mode on the man’s thigh, quieting him long enough for a paramedic to reestablish the IV catheter and administer dextrose, stabilizing his blood sugar level. The man denied being in pain, but was taken to the hospital. No treatment was given for the Taser wound. He claimed that he suffered burns and that his diabetes worsened, and sued for excessive use of force. He later died from complications of diabetes. A federal appeals court overturned a denial of qualified immunity to the deputy for his use of the Taser. He acted in an objectively reasonable manner with the minimum force necessary to bring the man under control, enabling the paramedics to save his life. The case is notable for setting forth a different test for judging the objective reasonableness of the force used by an officer in medical situations than the standard test under Graham v. Connor, #87-6571, 490 U.S. 386 (1989), used in a criminal context. The three factor inquiry in Graham looks at (1) “the severity of the crime at issue,” (2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” In the situation faced by the deputy in this case, however, there was no crime, no resisting of arrest, and no direct threat to the officer. Accordingly, a strict application of the Graham factors could result in a determination that the force was not objectively reasonable. Instead, the court held:

Where a situation does not fit within the Graham test because the person in question has not committed a crime, is not resisting arrest, and is not directly threatening the officer, the court should ask:

(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?

(2) Was some degree of force reasonably necessary to ameliorate the immediate threat?

(3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?

If the answers to the first two questions are “yes,” and the answer to the third question is “no,” then the officer is entitled to qualified immunity.

     Applying its newly adopted approach, the appeals court found the force used objectively reasonable and the officer entitled to qualified immunity.  Estate of Corey Hill vs. Miracle, #16-1818,  2017 U.S. App. Lexis 5993  (6th Cir.).
     A mother called 911 to report that her daughter was having an asthma attack and to ask for assistance. The mother claimed that the officers, in seizing her daughter when they arrived and opting to wait for an ambulance to arrive to transport the daughter to the hospital, caused a delay resulting in the girl's death. A federal appeals court upheld summary judgment for the defendant city and its officers. To the extent that there was a seizure for Fourth Amendment purposes, it was reasonable under the circumstances based on the officers' community caretaking function and their concern for the safety of everyone involved. A Fourteenth Amendment due process claim was rejected because the officers, facing a "hyperpressurized" environment, acted sensibly in waiting for the incoming ambulance, which was only "seconds away." Vargas v. City of Philadelphia, #13-4590, 783 F.3d 962 (3rd Cir. 2015).
     After suffering a pulmonary embolism, a woman dialed 911, telling the dispatcher that she could not breathe and needed emergency assistance. Due to a series of errors by dispatchers and emergency personnel, paramedics did not arrive for about 42 minutes, by which time she was dead. The trial court properly granted summary judgment to the defendants on a wrongful death claim. The decedent had no duty to her under the public duty rule, and no exception applied when she was not under the direct or immediate control of any defendant. Coleman v. East Joliet Fire Protection Dist., #117952, 2014 IL App (3d) 120583-U, 2014 Ill. App. Unpub. Lexis 1217.
     A female college student was brought to a hospital emergency room after she passed out at a party. Despite their concern that she might have been involuntarily drugged and then raped, police officers declined to authorize the carrying out of a forensic exam. Subsequently, she sued the District of Columbia, claiming that its police were negligent in failing to investigate her possible sexual assault, and that the District negligently hired, trained and supervised the officers in the area of investigating sexual assaults. Summary judgment was properly granted for the defendant District on these claims. The officers owed a duty to investigate possible crimes to the public, not to any specific individual. Additionally, the officers did not prevent the hospital from administering any forensic test, and had its own independent authority to do so if it wished, but declined to do so. McGaughey v. District of Columbia, #11–7001, 2012 U.S. App. Lexis 14568 (D.C. Cir.)
     Police believed that a motorist who veered off the road, and disobeyed orders to exit his vehicle was intoxicated. He was actually diabetic, and suffering from hypoglycemia. The officers physically pulled him from his car, struck him, and used mace on him as he resisted their efforts. After a paramedic recognized the driver's diabetic condition, he was transported to a hospital, where he subsequently died. The officers, under these circumstances, were not liable for the motorist's death, based on the reasonableness of their belief that he was intoxicated. Padula v. Leimbach, #10-3395, 2011 U.S. App. Lexis 17996 (7th Cir.).
     After officers made a controlled purchase of pot in front of an apartment, officers entered the premises, and arrested a female occupant who was smoking marijuana. After she told them that she feels ill, they allegedly denied her requests for a baby aspirin. She subsequently has a heart attack, but the officers are not liable for denying her medical attention, since they were not on notice, based on her appearance, of her serious medical condition, and were not directly made aware that she was experiencing chest pains. Florek v. Village of Mundelein, #10-3696, 2011 U.S. App. Lexis 16854 (7th Cir.).
     When three officers were engaged in executing a search warrant, a woman complained of or exhibited some health problems. The officers allegedly denied her request for access to her anti-anxiety medication. Twenty minutes later, the officers summoned EMS personnel to treat her, which they did, leaving the scene, only to be called back later to transport the woman to the hospital. At some point, she suffered cardiac arrest and went into a coma, remaining in it. A lawsuit accused the officers of violating her civil rights through deliberate indifference to her need for immediate medical care while she was, in essence, a pretrial detainee. A federal appeals court upheld a ruling that the officers were entitled to qualified immunity. They had no subjective knowledge at first that the woman was in serious need of immediate medical attention, and when this became clear to them, they summoned medical personnel and did not interfere with their treatment. Their actions might have been, at worst, negligent, but did not violate her constitutional rights. Flores v. Jaramillo, #10-40096, 2010 U.S. App. Lexis 16520 (Unpub. 5th Cir.).
    Two officers responded to a 911 call indicating that a man was having a seizure in his home. Finding the man in his bedroom, the officers allegedly told him to get dressed, which he started to do, but then he started to lie down again, and the officers allegedly picked him up by his hands, pulled him up from the ground, and told him to put his pants on. They ultimately handcuffed his wrists and ankles and the man began actively struggling with them. The officers, however, claimed that the man was unresponsive to verbal questioning, that one of them put a hand on his arm or shoulder to try to rouse him, and that he then did rouse, becoming aggressive and violent, pushing them and causing one officer to fall backwards, making it necessary to handcuff him. Firefighters then arrived as the officers were restraining him, and together with emergency medical personnel removed him on a stretcher. In a lawsuit against the officers for violation of the man's Fourth Amendment rights, a jury awarded him $6,000 for medical bills, and $275,00 for pain and suffering, but the trial court reduced the pain and suffering award to $10,000. A federal appeals court upheld this result, finding that the jury could reasonably have found that the officer acted in an "objectively law-enforcement rather than medical-response capacity," and unreasonably searched the house for drugs and seized the plaintiff. McKenna v. Honsowetz, #08-2080, 2010 U.S. App. Lexis 17114 (6th Cir.).
     Sheriff's deputies had no legal duty under Florida law to "act with care' while performing a well-being check at a woman's residence in response to a 911 call. When they came to her home, they found her breathing but unresponsive on a couch in her home, but did not summon medical aid, instead telling a neighbor to leave the woman's door unlocked and check on her later. The neighbor found the woman still unresponsive the next day, and called emergency medical personnel, who took the woman to the hospital, where she died without again becoming conscious. The court found that the deputies did not engage in any actions that increased or changed the risk to the woman, other than the risk that already existed. They also never assumed control over the premises or engaged in actions causing the neighbor or anyone else to rely on them. Wallace v. Dean, No. 5D06-4289, 2007 Fla. App. Lexis 18806 (Fla. App. 5th Dist.).
     Police officers and emergency medical technicians who found a man lying on a couch when they responded to a call reporting a suspected cardiac arrest in an apartment, and who also found a female dead on the floor there had no general duty to provide assistance to the man on the coach, and were therefore not liable for his subsequent death there. The defendants did not restrain him in any way or place him in their custody, nor did they create a greater danger to him, such as by preventing access for private persons seeking to render assistance, given the absence of any indication that there was any private rescue attempted. The fact that the officers closed the apartment off as a crime scene for an investigation of the female's death did not by itself increase the risk that the man on the couch would also die. Further, there was no indication that he died while the officers were present. Denial of qualified immunity was therefore reversed. Carver v. City of Cincinnati, No. 06-3230, 2007 U.S. App. Lexis 976 (6th Cir.). [N/R]
     County was not liable for failure to provide assistance to a heart attack victim on the basis of a 911 call which was hung up before the dispatcher receiving the call could respond, and before any assurance of assistance was made. The dispatcher still sent an officer to investigate, but a prank call had also come from the same pay phone minutes earlier, and the officer cleared the call after finding a boy near the phone who admitted to having made the prank call, failing to go on to the address given in the call reporting the heart attack. The heart attack victim subsequently died. Under these circumstances, no promise of medical aid was given on which the heart attack victim could have reasonably relied. Cummins v. Lewis County, No. 76249-0, 133 P.3d 458 (Wash. 2006). [N/R]
     Police and EMTs who responded to a report of a man having a seizure were not entitled to summary judgment in lawsuit claiming that they created a further danger to him and used excessive force to restrain him, causing his death. Rivas v. City of Passaic, #02-3875, 365 F.3d 181 (3rd Cir. 2004). [2004 LR Aug]
     Parents of child who died from choking could not recover damages against city for failure of emergency medical technicians to rescue him. The child had no due process right to be rescued or any constitutional right to be given competent services once his rescue was undertaken. Brown v. Commonwealth of Pennsylvania, #01-3234, 300 F.3d 310 (3rd Cir. 2002). A rehearing in this case was granted on September 9, 2002. [N/R]
     331:109 Officers' alleged failure to provide transportation to hospital for a woman having a heart attack, and blocking of the road to the hospital with police vehicles did not "shock the conscience" when they were searching for shooting suspects and attempting to secure a crime scene at the time. Cannon v. City of Philadelphia, 86 F.Supp. 2d 460 (E.D. Pa. 2000).
     330:83 Deputy properly used deadly force against man advancing on him with a piece of concrete in his hand; sheriff's failure to train deputies in the use of deadly force against "crazy" people was no basis for liability when general policy on use of deadly force was correct and no showing of a prior problem in this area was shown; basis for exclusion of expert witness was erroneous, but jury did not need expert help to conclude that deputy acted reasonably. Pena v. Leombruni, No. 99-1435, 200 F.3d 1031 (7th Cir. 1999).
     319:108 Police officer might face possible liability for taking motorist into custody and charging him with driving while intoxicated a second time after tests for intoxication proved negative; officer may have intended to assist motorist by taking him to jail since he was unable to pay for a hotel room and might not have been able to care for himself, but officer failed to follow state mandated procedures for protective custody. Qian v. Kautz, #97-3295, 1999 U.S. App. Lexis 2295 (7th Cir.).
     302:29 Police officers could potentially be liable for moving seriously ill man from his front porch to inside his house, canceling call for paramedic assistance, and leaving him alone in locked house; federal appeals court rules that officers were not entitled to qualified immunity as their actions may have enhanced the risk to the man, who later died inside the home. Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997).

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