Qualified immunity

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Waters v. Coleman, No. 14-1431, 2015 WL 6685394 (10th Cir. Nov. 3, 2015)

Officers involved in the subduing and arresting of a man experiencing “excited delirium” were entitled to qualified immunity against an excessive force claim by the man’s estate

Background: On July 18, 2011, Alonzo Ashley and his girlfriend visited the Denver Zoo. Zoo patrons called security when Ashley tried to cool off under a water fountain, and the police were called when zoo security reported that Ashley attacked a security officer. When the first officer on scene, Jones, approached Ashley, he noticed that Ashley was sweating profusely—a symptom of excited delirium. Ashley and Jones struggled, and Jones eventually tackled Ashley with the assistance of two zoo officers. Ashley attempted to punch Jones, and Jones deployed his Taser to Ashley’s back. When the second officer, Coleman, arrived, Ashley was still resisting, and Jones deployed his Taser again. Coleman also deployed his Taser two times and noticed that “Mr. Ashley seemed extremely strong.” When three more officers, the officers were eventually able to subdue Ashley, and after he was handcuffed he remained on his stomach for between 2 and 5 minutes. Noticing that Ashley had vomited, Conner called for medical assistance. Ashley vomited once more and then stopped breathing. The officers began chest compressions, but Ashley was pronounced dead after paramedics transported him to the hospital. Ashley’s mother, Gail Waters, brought a § 1983 action against the police officers alleging excessive use of force that led to his death. The United States District Court for the District of Colorado denied the officers’ motions for summary judgment on the grounds of qualified immunity. The officers appealed.

Holding: The Tenth Circuit Court of Appeals reversed in part and dismissed in part, holding that all officers who participated in the arrest were entitled to qualified immunity. Additionally, the Tenth Circuit held that the Court of Appeals lacked jurisdiction to consider the denial of qualified immunity for lieutenant’s supervisory conduct as the ranking officer on scene after Ashley was handcuffed.

Notable Points:

Excessive force when detainee may be suffering from excited delirium: The Tenth Circuit did not reach the question of whether any officer’s conduct was objectively unreasonable and therefore unconstitutional because it found that, on the day of the incident, the law was not clearly established so as to alert the officers to the potential illegality of their conduct. Even though Ashley presented symptoms of excited delirium, the Tenth Circuit stated that it has never “required officers to refrain from a minimal use of force when dealing with an impaired individual,” noting several times the fact that a struggle was ongoing at the time that force was used. The Court noted that existing case law does, however, make it clear that continued use of force against a subdued or nonresisting person is not constitutionally permissible.

Found in Found in DMHL Volume 34, Issue 4

Qualified immunity

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Pena v. Givens, No. 14-11020, 2015 WL 7434253 (5th Cir. Nov. 23, 2015)

State psychiatric ER employees are entitled to qualified immunity against claim by the estate of a man who died in the ER

Background: After arriving at a fire station and complaining that he was being chased, George Cornell was taken by police to the Parkland psychiatric emergency room (the “Psych ER”). Cornell resisted when technicians tried multiple times to take his vitals, and tried to leave the Psych ER. Cornell was taken into a seclusion room, held on a mat on the floor, and given a mixture of Haldol, Ativan, and Benadryl to calm him. When Cornell became agitated again and ripped up a floor tile, the technicians attempted to move him to a new room, but he resisted and they administered another injection of the same three medications. Cornell was held on his stomach for some amount of time (possibly up to 15 minutes) following the second injection before the technicians left the room. A nurse found him lying prone in the room, and Cornell was transferred to the main emergency room, where he died. Following Cornell’s death, the medical examiner found the cause of death to be undetermined but listed three potential causes: (1) mechanical compression; (2) underlying cardiac issues; or (3) effects of the medication he received in the Psych ER. Cornell’s representatives sued technicians, doctors, nurses, and hospital supervisors alleging excessive force, physical restraint, denial of adequate medical care, staff supervision violations. The United States District Court for the Northern District of Texas denied defendants’ motions for summary judgment on grounds of qualified immunity, and the defendants brought an interlocutory appeal.

Holding: On interlocutory appeal, the Fifth Circuit held per curiam that the technicians, nurse, doctor, and supervisors were all entitled to qualified immunity. The Court noted a lack of binding authority holding that “a medical professional’s restraint of an individual in an emergency medical situation constitutes a Fourth Amendment seizure.” Further, the Court noted that “even police officers’ use of restraint does not implicate the Fourth Amendment if they are acting in an emergency-medical-response capacity” (emphasis in original). Important to the Fifth Circuit on both the excessive force and substantive due process claims was the fact that Cornell resisted the Parkland staff. Regarding the substantive due process violation due to physical restraint, the Fifth Circuit noted that the staff’s conduct violated hospital policy but did not amount to conduct that “shocks the conscience.” 

Regarding the denial of adequate medical care, the Fifth Circuit noted the “recognized…special relationship for incarcerated and involuntarily committed individuals,” which requires a state to protect the citizen from harm.2 Plaintiffs must demonstrate that state official acted with “deliberate indifference.” Thus, the defendants must have been “on notice” of Cornell’s heart condition and then consciously refused to provide further care. Here, the Fifth Circuit pointed out that “Cornell resisted the officers when they tried to provide care,” and posited that they could not say “that a reasonable jury could conclude that the failure to treat a heart condition after a patient refuses care and begins attacking staff amounts to deliberate indifference.” Finally, regarding the lack of supervision claim, the Fifth Circuit noted that the subordinates’ actions had not been found to be a constitutional violation, therefore the supervisors could not be held liable for constitutional violations.

Notable Points:

Restraint while rendering emergency medical aid: Even though the training given to technicians warned not to hold patients in a prone position for extended periods of time, the Fifth Circuit cited Sheehan in saying that “if an officer acts contrary to her training…that does not itself negate qualified immunity where it would otherwise be warranted.”

Found in Found in DMHL Volume 34, Issue 4

Excessive Force

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Kent v. Oakland Cty., 810 F.3d 384 (6th Cir. 2016)

Qualified immunity denied to officers who tased a man who was agitated but not armed, actively resisting arrest, or making threats of physical harm against the officers and EMTs seeking his compliance.

Background: Claudio Lopez and Christina Maher—both Oakland County Sherriff’s Deputies—responded to the natural, at-home death of Michael Kent’s father. When EMTs attempted to attach an Automated External Defibrillator to Kent’s father, Kent objected on the grounds that his father had not wished for life-sustaining procedures. Kent became increasingly agitated, yelling at the deputies and EMTs and refusing to calm down. One of the EMTs asked the deputies for assistance and told one deputy that he felt he could not perform his duties for fear of Kent intervening. After additional commands by the deputies to calm down, Deputy Lopez stated pulled out his taser and told Kent that he would deploy it, to which Kent reported that he replied, with his hands in the air, “Go ahead and Taze me, then.” It was at this point that Deputies Lopez and Maher tased Kent. Kent brought an action pursuant to 42 U.S.C. § 1983 and the deputies moved for summary judgment on the grounds of qualified and governmental immunity. Finding that the deputies’ use of the taser under the circumstances was clearly unreasonable, the district court denied the motion for summary judgment. The deputies appealed.

Holding: The Sixth Circuit affirmed the district court’s denial, holding that there was no combination of facts that would have made the officers’ use of force reasonable. Especially important to the Court was the fact that Kent’s resistance to the officers’ directions was only verbal and generally non-threatening. The Court found that, while Kent did not address the officers in a polite manner, his conduct did “not resemble the ‘continued resistance and hostility’ often present in our active resistance cases…”

Notable Points:

Kent did not pose an immediate threat to the safety of others: Even though Kent may have prevented EMTs from doing their duties, his conduct did not “resemble the physical and immediate safety threat” found in other cases in which tasing was justified. Examples of threats that warrant tasing include: a suspect who is armed, a suspect reported to be armed reaching into a bag, or a suspect whose violent resistance endangers responders.

Kent was not continuously resistant and hostile in a way that warranted use of force against him: The Sixth Circuit noted that active resistance of arrest, which would support use of a stun gun or taser by police, includes physically struggling against, threatening, or disobeying officers. It could also include refusing to allow police to handcuff a person or fleeing from police. Although Kent was not compliant with all orders given to him by police, he was not actively resisting them in a way that would have authorized use of a stun gun against him. Additionally, the Court found it important that there was “no evidence that Kent was aware that he would be detained until Deputy Lopez instructed him that he would be tased if he failed to comply with commands.”

Found in Found in DMHL Volume 35, Issue 1

Provider Liability

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Binkley v. Allina Health Sys., 877 N.W.2d 547 (Minn. 2016)

In a case involving a minor with history of suicidal behavior, hospital’s affirmative defense of statutory immunity applied to the decision to deny admission to an inpatient mental health unit, but not to decisions regarding what care to provide the patient after leaving the hospital. 

Background: Binkley sued Allina Health System (“Allina”) for negligence in failing to properly examine, evaluate, and provide services to her son, Lloyd, who committed suicide after being denied admission into an inpatient mental health unit. In 2009, Lloyd began to experience suicidal thoughts and ideation, which resulted in his participation in the “United Partial Program” (“partial program”), an outpatient mental health treatment program. About nine months after completing the program, Lloyd again experienced suicidal ideation and self-harm behavior. He told his mother that he wanted to go to United in order to get help and stop his pattern of self-harm. Binkley and Lloyd went to the United Health emergency room and repeatedly requested that Lloyd, who consented, be admitted to United's inpatient mental health unit. Lloyd was examined by United staff, but was informed that he would not be admitted to the inpatient unit and, further, he was not “a good candidate” for the outpatient program because of a previous failure to follow through with that program. Lloyd returned home with his mother and committed suicide less than 24 hours later. Respondents asserted an affirmative defense of statutory immunity and, in the alternative, claimed that Binkley's expert affidavit failed to satisfy the statutory requirements under Minnesota law. The district court denied the motion for summary judgment.

Holding: On appeal, the Minnesota Supreme Court held that Respondents' good-faith decision to deny Lloyd admission to the inpatient mental health unit was entitled to immunity. However, the court also held that decisions regarding what care to provide to Lloyd after he left the hospital were not entitled to immunity.

Notable Points:

The immunity provision of the Minnesota Commitment and Treatment Act (“CTA”) applies to both voluntary and involuntary commitments: The CTA creates a state policy in favor of voluntary treatment. The voluntary treatment section of the CTA, which applied to Lloyd's circumstances, prohibits the arbitrary denial of admission and requires that treatment facilities use “clinical admission criteria consistent with the current applicable inpatient admission standards established by the American Psychiatric Association or the American Academy of Child and Adolescent Psychiatry” when “making decisions regarding admissions.”

Found in DMHL Volume 35, Issue 2

Liability Under 42 U.S.C. Section 1983 for Involuntary Custody

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Myers v. Patterson, 819 F.3d 625 (2d Cir. 2016)

Second Circuit finds that the district court record was insufficient to support a finding of qualified immunity for police officer responding to child protective services report who took a mother into custody based on finding of danger to self or others due to mental illness, and remands for further proceedings.

Background: A Child Protective Services caseworker, Jodi Weitzman, was assigned to investigate Julia Johnson after reports from her son’s school. Weitzman eventually summoned police to Johnson’s home, believing that she should be sent for a psychological evaluation. The only record of the arrest was Weitzman’s handwritten notes; the police officer did not take notes and did not testify. The notes described Johnson as annoyed and uncooperative, and her son, DJM, as fearful. The officer, Patterson, arrested Johnson and she was sent to a medical facility for evaluation. The district court granted Patterson qualified immunity under 42 U.S.C. Section 1983 because Johnson did not put forth evidence that would suggest Patterson was not making a reasonable decision as a police officer when he detained her. The officer’s motion for summary judgment was granted.

Holding: A police officer must have probable cause to believe a person is at risk of harming himself or others in order to lawfully detain them. A police officer would have probable cause if other reasonable police officers would not disagree with his conduct or he was acting under the professional judgment of a licensed caseworker. The Second Circuit found that the record had insufficient detail to make a probable cause determination, one way or the other. The court vacated the district court’s assignment of qualified immunity and remanded the case to that court in order to further develop the record and reconsider the question of qualified immunity.

Notable Points:

Assessment for probable cause is anchored at time of custody: After Johnson was arrested, she was found to be a danger to herself and others, according to the psychological evaluation. Eventually, her parental rights were severed. Regardless of whether the subsequent facts make Patterson’s arrest seem more plausible, the court would only consider the facts at the time of the conduct.

Found in DMHL Volume 35, Issue 2

Excessive Force

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Hughes v. Kisela, 841 F.3d 1081 (9th Cir. 2016)

Ninth Circuit reverses district court’s grant of summary judgment to police officers based on qualified immunity when there were disputed facts as to whether the officer acted reasonably when he shot a woman who was holding a knife, but not acting aggressively.

Background: In May 2010, three officers responded to a welfare check call and reports of a woman acting erratically and hacking at a tree with a large knife. Soon after the officers arrived, Amy Hughes exited her house carrying a large kitchen knife at her side with the blade pointing backwards. Sharon Chadwick, who lived with Hughes, was standing outside the house near the driveway at the time. She later testified that Hughes was composed and content. Chadwick also testified that she did not consider Hughes a threat and was not in any fear. The three officers each drew their guns and ordered Hughes to drop the knife; Corporal Kisela contended that the officers yelled several times but Chadwick remembered hearing only two commands in rapid succession. Corporal Kisela testified that he saw Hughes raise the knife as if to attack, but the other two responding officers told investigators that they did not see her raise the knife. Corporal Kisela fired four shots each of which struck Hughes, but the injuries were not fatal. Chadwick testified that Hughes was taking medication for bipolar disorder, and Chadwick was always able to manage Hughes’s behavior in the past. Chadwick also testified that she believes Hughes did not understand what was happening when the police yelled for her to drop the knife. The district court granted summary judgment in favor of the police officer on a theory of qualified immunity.

Holding: The Ninth Circuit ruled that the officer was not entitled to summary judgment with respect to the reasonableness of his actions. The court also explained that qualified immunity requires a determination that the actions of the officer were reasonable, which in this case involved disputed facts that should properly be weighed by a jury. The Ninth Circuit reversed the grant of summary judgment and remanded for a jury to determine whether the responding officer acted reasonably.

Notable Point:

Excessive Force and Mental Illness: The Ninth Circuit noted that there are not separate excessive force analyses for those with mental illness and serious criminals, but the government interest in using such force is diminished when confronted with an individual with mental illness.

Found in DMHL Volume 35, Issue 4

Excessive Force

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Aldaba v. Pickens, 844 F.3d 870 (10th Cir. 2016)

The Tenth Circuit (following remand from the U.S. Supreme Court) reverses its prior decision that had denied qualified immunity to police officers in regard to a claim they used excessive force in subduing a medical patient attempting to leave the hospital (and risking death) due to temporary delirium, finding on remand that there were no existing case decisions that would have clearly informed those officers that their conduct violated Fourth amendment standards.

Background: Johnny Manuel Leija was admitted to the hospital after feeling ill for several days and was diagnosed with dehydration and severe pneumonia in both lungs. He was initially alert and cooperative and he was given an IV and an oxygen tube. The treatment improved Leija’s condition, but a nurse later found that Leija had cut his IV and removed his oxygen tube. She also found blood on the floor and in the bathroom. The nurse reconnected his IV and oxygen tube, but Leija became increasingly agitated. A doctor prescribed Xanax to treat his anxiety, but Leija refused to take it and again removed his IV and oxygen tube while loudly claiming that the nurse was telling lies and trying to poison him. The female nurse became concerned for her safety based on Leija’s behavior and a male nurse was sent to try to calm Leija. The male nurse found Leija claiming to be god and superman. The nurse attempted to inject Leija with Haldol and Ativan to calm him, but Leija refused to cooperate. The doctor was concerned about Leija’s low oxygen levels, and the nurse did not think they could restrain Leija sufficiently to administer the drugs for treatment. Law enforcement was called to assist. Three officers responded and found Leija in the hallway walking toward the hospital lobby and exit. The doctor told the officers that if Leija left the hospital he would die. The officers ordered Leija to return to his room, but he grew more agitated. Leija removed bandages from his arms and a “fairly steady stream of blood” began to flow from both of his arms. The officers tried to calm Leija and warned him that they might use a Taser. When Leija refused to cooperate, a Taser was deployed, but one of the probes missed. The other officers grabbed Leija and struggled to subdue him. As the three officers struggled with Leija, the male nurse injected him with Haldol and Ativan. Leija went limp, grunted and vomited clear liquid almost immediately after being injected with the drugs. Medical staff began CPR, but were unable to revive him. The cause of death was determined to be respiratory insufficiency secondary to pneumonia that was exacerbated by Leija’s exertion during the struggle with the officers. The Tenth circuit originally affirmed the district court’s denial of summary judgment for the officers, but the U.S. Supreme Court remanded with instructions to reconsider consistent with Mullenix v. Luna, 136 S. Ct. 305 (2015). In Mullenix, the Court ruled that qualified immunity should be denied only when “clearly established case law” would put officers on notice that it was “beyond debate” that their actions amounted to excessive force.

Holding: The Tenth Circuit found no cases that would have informed the officers “beyond debate” that their actions would be excessive force. Accordingly, the court remanded the case with instructions for the district court to grant summary judgment in favor of the officers based on qualified immunity.

Notable Point:

Qualified Immunity analysis: The Mullenix court emphasized that courts should not define clearly established case law at a high level of generality. The Court explained that “specificity is especially important in the Fourth Amendment context” because officers may have difficulty in determining how the legal doctrine will apply to the particular factual situation with which an officer may be confronted. The Court stressed that the inquiry must be focused on the specific facts and context of a particular case.

Found in DMHL Volume 35, Issue 4

Excessive Force

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Wate v. Kubler, 839 F.3d 1012 (11th Cir. 2016)

Eleventh Circuit upholds district court’s refusal to grant law enforcement officer’s motion for summary judgment based on qualified immunity in response to a claim that he used excessive force in responding to a person in mental health crisis where there was evidence that the officer Tasered the detained person at least twice after the person had stopped actively resisting the officer.

Background: James Barnes was visiting a beach on Honeymoon Island in Florida with his aunt Paula Yount in order to conduct a baptismal ritual. While in the water, Barnes began acting erratically by flailing around and yelling about a demon. The only law enforcement officer on the Island at the time was Officer Tactuk, who responded to the commotion in the water. Yount came out of the water to speak with Tactuk, who then believed there was probable cause to arrest Barnes for battery on Yount. Tactuk entered the water and attempted to arrest Barnes, but a struggle ensued and Tactuk repeatedly struck Barnes in the face. Tactuk was able to place a handcuff on one of Barnes’s hands and they continued to struggle in the water. Bystanders eventually helped Tactuk drag Barnes onto the beach. Multiple witnesses had called 911 to report the incident and Tacktuk called for backup over the police radio. Tactuk attempted to place Barnes’s other hand in handcuffs, and a bystander observed that during the struggle, Barnes was coughing blood and appeared to have difficulty breathing. Officer Kubler responded to the incident about seven minutes after Tacktuk’s initial encounter with Barnes. Kubler and Tactuk continued to struggle with Barnes until Kubler deployed his Taser a total of five times over the course of nearly two minutes. Barnes became still and the officers were able to handcuff him. There was a dispute between the officers’ testimony and that of bystanders regarding when Barnes stopped resisting. An off-duty fire lieutenant who came to the scene at that point told the officers to take the handcuffs off because Barnes was not breathing and had turned blueish gray. The officers then removed the handcuffs and began CPR. Rescue personnel responded to the scene and took over the rescue, but Barnes died two days later. The cause of death was determined to be complications of asphyxia with contributory conditions of blunt trauma and restraint. Barnes’s representative brought suit against the officers and agencies involved. The other parties in the case settled with the plaintiff, but Officer Kubler moved for summary judgment based on qualified immunity. The district court denied the motion and Kubler appealed.

Holding: The Eleventh Circuit ruled that Kubler was not entitled to summary judgment and affirmed the holding of the district court. The court found that by reviewing the evidence in the light most favorable to the plaintiff, as required at the summary judgment stage, “a reasonable officer in Kubler's position and under these circumstances would have had fair warning that repeatedly deploying a Taser on Barnes, after he was handcuffed and had ceased resisting, was unconstitutionally excessive.”

Found in DMHL Volume 35, Issue 4

Unlawful Seizure

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May v. City of Nahunta, 841 F.3d 1173 (11th Cir. 2016)

Eleventh Circuit reverses district court’s grant of summary judgment based on qualified immunity in seizure of individual for mental health evaluation, finding that although the evidence supported the officer’s initial seizure, the officer carried out the seizure in a manner that violated the individual’s constitutionally protected privacy interests.

Background: Phyllis May was the sole caregiver for her mother who was suffering from Alzheimer’s with sundowning syndrome, a condition that caused her to stay awake for days at a time. May became exhausted and called her brother to come help care for her mother before lying down. When her brother arrived several hours later, he was unable to wake May and called 911. Four EMTs responded and used an ammonia capsule to wake May. The EMTs evaluated May, but she refused to be transported to the hospital and the EMTs determined that she did not require further treatment. May executed a form refusing treatment. At the same time, Officer Allen responded to a 911 call requesting assistance at May’s residence. The EMTs told Allen that May had “been a little combative to herself” and was upset. Allen entered May’s bedroom to investigate and found her hair in disarray and decided to transport her to a hospital for a psychological evaluation. Allen instructed the EMTs to leave the bedroom and then locked himself in the bedroom with May. He instructed her to take off her nightgown and put on suitable clothes to go to the hospital. May became upset and began to cry, but Allen insisted that she change, even pulling on her nightgown to remove it. May put on shorts, but Allen insisted she take them off and first put on undergarments. May refused, but Allen patted his gun and told her “yes you will.” Allen remained in the locked room with May for 15 to 20 minutes, while her sister was outside requesting the door be opened. When they emerged from the bedroom, Allen stated that he was taking May to the hospital and she again objected. Allen escorted May to the emergency room and asked hospital staff about May’s prior diagnoses before leaving. May was subsequently released from the hospital after no more than two hours. May brought suit alleging unlawful seizure, false imprisonment, assault and battery, and invasion of privacy. The district court granted Officer Allen’s motion for summary judgment based on qualified immunity

Holding: The Eleventh Circuit affirmed the district court’s finding of qualified immunity for Allen’s decision to seize May for a mental health evaluation, but reversed and remanded to determine whether the manner of the seizure unreasonably violated May’s privacy interests.

Notable Point:

Manner of Seizure: The court explained that searches conducted in an abusive fashion may violate the Constitution. The court emphasized that if Officer Allen’s alleged conduct were proven, it would be “representative of the type of unnecessarily invasive and demeaning intrusion that is undoubtedly within the sphere of what the Fourth Amendment prohibits.”

Found in DMHL Volume 35, Issue 4