Monthly Law Journal Article: Public Protection: Arrestees, 2011 (2) AELE Mo. L. J. 101

     Two men were walking home on Christmas Eve when they stopped to rest along the road, sitting on a guardrail. An officer approached them in his cruiser and asked if everything was ok. They replied that it was, but when the officer asked them their names, one man started to walk away while the other allegedly started to "go off" like "a crazy person." The officer allegedly pepper sprayed the man, handcuffed him behind his back, took him from a place of safety to the street, and left him in the street. Both that man and the officer were subsequently hit by a car, with the crash causing the detainee severe traumatic brain injury requiring around the clock care. In a lawsuit, the officer was not entitled to qualified immunity. A reasonable jury could find, based on the incident as alleged by the plaintiff that the officer seized the man without reasonable suspicion and was deliberately indifferent to his safety based on the length of time he left him handcuffed, face-down on the road. While the officer did expose himself to danger by racing into the road to try to save that man from the oncoming car, himself suffering a broken shoulder and leg, it was possible to find that the officer acted recklessly in handcuffing him in the street. Family Serv. Ass'n v. Wells Twp., #14-4020, 2015 U.S. App. Lexis 6174, 2015 Fed. App. 69P (6th Cir.).
     The family of a female arrestee who died while held in a cell in a police station without needed medical attention for over 24 hours was awarded $1 million in damages by a jury. According to the plaintiffs, the woman's lawyer and several family members repeatedly let officers know that she was seriously ill, and she herself informed them of this also. She was obese, diabetic, and had asthma. The jury found that a police practice of holding detainees in cells in police stations without medical attention for up to two days was unconstitutional. Ortiz v. the City of Chicago, #04-C-7423, U.S. Dist. Ct. (N.D. Ill. Nov. 4, 2013).
     A bipolar woman who had ceased taking her medication was arrested for disruptive actions at an airport. She allegedly received no medical attention while detained, and was released in a high-crime area of town where she was first raped and then either pushed or fell out of a high-rise building, causing her to suffer permanent brain damage. While there is no general right to have police protection against the criminal acts of third parties, police can be liable for damage if they create or enhance the danger of such crimes. While the woman had no due process right to be kept in custody for her protection, it was "clearly established that the police may not create a danger, without justification, by arresting someone in a safe place and releasing her in a hazardous one while unable to protect herself." A number of individual defendants were not entitled to qualified immunity for their role in the woman's release in a dangerous area or failure to provide her with medical care while in custody. The court stated that “they might as well have released her into the lion's den at the Brookfield Zoo,” since “she is white and well off while the local population is predominantly black and not affluent, causing her to stand out as a person unfamiliar with the environment and thus a potential target for crime.” Paine v. Cason, #10–1487, 2012 U.S. App. Lexis 8450 (7th Cir.).
     Police took a man into custody in response to his parents' report that he might be a danger to himself or others. They intended to transport him to a mental health facility. During a search of his person, they found his wallet, but failed to discover a razor blade concealed within it, letting him retain possession of the wallet. While being transported in their squad car, the man used the razor blade to kill himself. Rejecting a claim that the officers acted with deliberate indifference to the decedent's risk of suicide, a federal appeals court noted that the officers acted with compassion and a desire to protect him as evidenced by the very fact that they searched him and inspected the contents of his wallets, albeit imperfectly. Rosario v. Brawn, #11-2072, 670 F.3d 816 (7th Cir. 2012).
    A Bureau of Indian Affairs (BIA) law enforcement officer came to a home to arrest a man for federal sex crimes, sex relations with three girls under the age of 16 on Indian Territory. When informed of his arrest, the arrestee told the officer that he would go willingly as soon as a relative arrived to take care of his little brother, and asked to go to his bedroom to clean up while waiting. The officer agreed, and the arrestee then shot and killed himself in his bedroom. His mother sued for wrongful death under the Federal Tort Claims Act, claiming that the officer had failed to adequately supervise, secure, and detain her son after arresting him. A federal appeals court uphold the dismissal of the lawsuit, finding that the officer's on-the-spot decisions about how to carry out the arrest fell within a discretionary function exception to liability under the Act in the absence of any mandatory directive to the contrary. Hart v. U.S., #10-1604, 2011 U.S. App. Lexis 498 (8th Cir.).
     After police arrested a suspect in the robbery of a restaurant patron, who was a county prosecutor and newly elected judge, they brought the handcuffed arrestee to the restaurant to have his victim identify him. The victim lunged at him and poked his left eye, causing swelling and pain. The officers allegedly omitted mention of this attack in their report, and at the jail, the arrestee claimed, personnel delayed for several weeks eye surgery he needed to prevent going blind from glaucoma. The prosecutor could not be held liable for violation of the arrestee's civil rights, as he acted as a private person, not under color of state law. The officers were not liable on a failure to protect claim, as they had no advance indication that the victim was going to attack the arrestee. The court also rejected the claim for deliberate indifference to the plaintiff's serious medical needs, finding that his eye surgery was scheduled as soon as medical personnel determined that it was needed. Collins v. Alevizos, #10-1421, 2010 U.S. App. Lexis 25176 (Unpub. 11th Cir.).
     After an officer received a report of a man running up and down a street hallucinating, he encountered the individual, who stated that he had smoked crack cocaine. EMTs summoned to the scene decided not to transport the man to a hospital, and he was instead placed under arrest. At the jail, he was examined by a nurse, restrained, tased, and subsequently released. He became unconscious, went into a coma from multi-organ failure due to the drug use, began to cough up blood and shake, and subsequently died eleven months later. The arresting officer was entitled to qualified immunity in a lawsuit for failing to provide the arrestee with needed medical attention, as he properly relied on the EMTs and jail nurse for their medical expertise. Spears v. Ruth, #09-5408, 2009 U.S. App. Lexis 26851 (6th Cir.).
     In a lawsuit over the suicide of an arrestee who shot himself in the backseat after obtaining a deputy sheriff's gun left on the front passenger seat of the deputy's vehicle, there was no evidence that the deputy was deliberately indifferent to a known risk of harm. Gish v. Thomas, No. 07-12368, 2008 U.S. App. Lexis 2494 (11th Cir.).
     City was entitled to sovereign immunity under Texas state law in a lawsuit for wrongful death brought by the estate of a juvenile arrestee who died when he exited from a police car traveling on a freeway and another car hit him. An officer's alleged negligent failure to properly secure the arrestee in the back seat of the patrol car did not come within a waiver of sovereign immunity for use of motor vehicles. City of Sugarland v. Ballard, No. 01-04-00418-CV, 174 S.W.3d 259 (Tex. App. 1st Dist. 2005). [N/R]
     Police officer was not liable for arrestee's drowning in nearby retention pond after he escaped from custody, since failing to handcuff or search the arrestee prior to escorting him to the car was no violation of his rights, and the officer had no intention of causing harm in allowing the arrestee to escape custody. Officer's alleged failure to rescue him from the pond was also no basis for liability, since there is no Fourth Amendment "right to be seized." Purvis v. City of Orlando, 273 F. Supp. 2d 1321 (M.D. Fla. 2003). [N/R]
     Deputies and sheriff were not liable for injuries suffered by a pedestrian on the side of the road when he was struck by a drunken driver while being detained by the deputies, who were searching for an escaped jail prisoner. The deputies activated their overhead lights and flashing headlights, and also pulled their vehicle as close as possible to the suspects they detained. The fault for the injuries rested with the drunk driver, who admitted that he "blanked out" or fell asleep after seeing the lights, and not with the deputies or the sheriff. Freeman v. Tate, 847 So. 2d 800 (La. App. 2003). [N/R]
     Officers were not responsible for intoxicated arrestee's death from drowning while trying to escape on the basis of their own failure to rescue him or their alleged prevention of bystanders' rescue efforts. Officers were entitled to qualified immunity, as no reasonable officer could believe that these actions violated the arrestee's clearly established rights. Hermann v. Cook, 240 F. Supp. 2d 626 (W.D. Ky. 2003). [2003 LR Jun]
     Officer was not liable for death of intoxicated arrestee because of alleged failure to confine him securely enough in police vehicle to prevent the struggle that led to his death. Proffitt v. Ridgway, #00-3229, 279 F.3d 503 (7th Cir. 2002). [2002 LR Jul]
     326:21 Police department's action of purchasing patrol wagons without safety nets and using them to transport detainees did not constitute deliberate indifference to a substantial risk of serious harm; no federal civil rights liability for injuries detainee suffered when thrown about by vehicle motions after being placed in wagon with his hands cuffed behind his back. Spencer v. Knapheide Truck Equipment Co., #98-3717, 183 F.3d 902 (8th Cir. 1999).
     335:173 Officers did not owe arrestee a duty to conduct a more thorough search which would have found a cigarette lighter in her coat, so that they could not be liable, on that basis, for her injuries when the lighter set her coat on fire; factual issues precluded summary judgment on her claim that they ignored her screams for help once the fire began. Warren v. Swanson, 69 F.Supp. 2d 1047 (N.D. Ill. 1999).
     290:27 Arresting officer was not liable for motorist's suicide when told he was under arrest for driving while intoxicated; officer was entitled to official immunity, under Missouri state law, for failure to prevent motorist from using gun in his truck to shoot himself in the head; officer did not exhibit "deliberate indifference" for purposes of federal civil rights claim, when he had no reason to suspect that motorist was suicidal Miller v. Smith, 921 S.W.2d 39 (Mo App. 1996).
     291:36 Officers' alleged failure to provide medical attention to arrestee because he had earlier fled the scene of a vehicle accident in which others were injured could, if true, support a claim for deliberate indifference to his constitutional right to medical attention; officers were not entitled to qualified immunity as such right was clearly established law Nerren v. Livingston Police Department, 86 F.3d 469 (5th Cir. 1996).
     283:109 Update: Federal appeals court upholds determination that an arrested rape victim had a clearly established right against officers acting with deliberate indifference to her serious medical needs; officers' appeal of denial of qualified immunity dismissed based on outstanding factual issue of whether arrestee had told them that she had been raped Carnell v. Grimm, 74 F.3d 977 (9th Cir. 1996).
     City, police chief, and arresting officers were not liable for unforeseeable suicide of murder arrestee McDay v. City of Atlanta, 420 S.E.2d 75 (Ga App. 1992).
     Officers were not liable for death of arrestee who died from ingesting cocaine taken from his suitcase which officers placed beside him in the back seat of their squad car Weimer v. Schraeder, 952 F.2d 336 (10th Cir. 1991).
     Officers not liable for failure to prevent juvenile detainee from climbing out of sixth floor police headquarters building and getting injured Colins v. Price, 813 S.W.2d 46 (Mo App. 1991).
     Officers not liable for suspect's injuries after he reacted to their threat to break down his apartment door by jumping out the window Carson v. City of Philadelphia, 574 A.2d 1184 (Pa/Cmwlth. 1990).
     Failure to summon medical care for arrestee following car accident did not amount to "deliberate indifference" absent noticeable injury; medical decisions are discretionary acts protected by immunity Hill v. City of Saginaw, 399, N.W.2d 398 (Mich.App. 1986). released for publication 2/87