Alverna Brown v. Kenneth C. Jenne
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2012
ALVERNA BROWN, as Personal Representative of the Estate of
ORAL GEORGE BROWN, deceased, and on behalf of the survivors of
ORAL GEORGE BROWN,
Appellant,
v.
KENNETH C. JENNE, individually, and in his official capacity as
Sheriff of Broward County, Florida, LEONARD SMITH,
SERGEANT TODD CHASE, WILLIE DOWE, KENNETH AUTENRIEB,
ELI THOMASEVICH, DOES 1-10, Individually,
BROWARD COUNTY FIRE RESCUE, KENNETH LOUKINNEN,
HAYES C. BOWEN, KEN SWAN, RONNIE HALL, KARL FROLING, LISA
LONG, RICHARD CABRERA, KEN McKINNEY, DOES 11-20,
Individually, SWAP SHOP MANAGEMENT, LLC,
and BROWARD COUNTY,
Appellees.
No. 4D10-142
[August 1, 2012]
ON MOTION FOR REHEARING
WARNER, J.
Appellant’s Motion for Rehearing is hereby granted. This Court’s
opinion of November 9, 2011, is hereby vacated and substituted with the
following opinion.
Alverna Brown, as Personal Representative of the Estate of Oral
George Brown (the “decedent”), appeals from final summary judgments
granted in favor of nine different defendants on appellant’s claims of
violation of Brown’s civil rights under 42 U.S.C. § 1983. The nine
defendants are five officers with the Broward Sheriff’s Office (“BSO”) and
four Broward County Fire Rescue (“BCFR”) personnel, all of whom
responded to a vehicle rollover crash involving the decedent. The plaintiff
claimed that the conduct of both BSO and BCFR in attending to the
decedent, who was alive after the crash but subsequently expired at the
hospital, violated the decedent’s civil rights. The court granted summary
judgment to all defendants on the basis of qualified immunity. We
reverse as to the BSO personnel, concluding that issues of fact remain as
to whether they are entitled to qualified immunity under the facts of this
case, and affirm as to the BCFR personnel, as there was no clearly
established constitutional right of the decedent that they violated.
Facts
This case stems from the decedent’s 2001 death, which occurred after
h e was involved in a one-car rollover crash. BCFR personnel were
required to utilize the “Jaws of Life” to help extricate the decedent from
the car and lower him to the ground. Both police and fire rescue on the
scene felt that the decedent was dazed. He was incoherent, was
unresponsive to police commands, and began to walk away. The officers
were concerned for his health and safety. He was not suspected of any
criminal activity.
Independent eyewitnesses described the decedent after h e was
extricated from the car as appearing to be in shock, having difficulty
breathing, being incoherent, moaning, staggering and leaning against a
car as he kept walking around, all the while as officers tried to talk to
him to find out what was wrong with him. After five minutes of getting
nowhere with him, several officers threw the decedent to the ground; one
had his hand on the decedent’s head while two other officers were on the
decedent’s back, pulling his arms behind him to handcuff and ultimately
hogtie him. The officers on the decedent’s back were telling him to stop
flailing his arms, but it did not appear that he understood. The decedent
at no time acted aggressively towards police or paramedics. One witness
stated that it appeared that the police were rough in handling the
decedent because he was not responding to their commands, and not
because they needed to immobilize him for treatment.
BCFR paramedics accompanied and attended to the decedent in the
ambulance on the way to the hospital. The decedent was placed, still
hogtied and face-down, on the stretcher, and then the paramedics put
straps across the back of his knees and waist. Their reasoning for
leaving him face-down was the difficulty moving him due to his size and
weight, and their concern that if he had vomited, his face-down position
would allow his airway to drain such that he would not choke. He was
having trouble breathing, but he was not given oxygen en route to the
hospital.
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A few blocks from the hospital, the decedent had a grand mal seizure,
with the violent activity typical of such, which lasted approximately one
minute. Standard measures to stop the seizure were not attempted.
After the seizure, the decedent was unconscious, breathing deeply,
and drooling in a postictal state. The paramedics left the decedent face
down and did not then administer oxygen. They were close to the
hospital at that time. The decedent died shortly after arriving at the
hospital.
The medical examiner found that the decedent died due to positional
asphyxia, which led to respiratory and cardiac failure. As the medical
examiner explained:
Well, there are multiple factors in the position that he’s in.
He’s on his stomach. He’s an obese man. He is in a hogtied
position which puts more pressure on his trunk of his body.
Not only that, he’s also cinched down tightly as described in
the record to the gurney which is also compromising his
chest. He’s not able to move. He’s not able to expand his
chest fully to breathe.
BCFR also reviewed the incident and issued a memorandum
identifying nine issues that cumulatively led to the decedent’s death,
particularly d u e to his positioning with handcuffing a n d failure to
properly monitor the decedent during transport to the hospital.
Following the incident, the plaintiff filed a n action against the
Broward County Sheriff and the BSO and BCFR personnel under 42
U.S.C. § 1983 and 42 U.S.C. § 1985. The BCFR personnel sought to
dismiss the complaint, alleging that they were entitled to absolute
immunity or, alternatively, qualified immunity. The trial court granted
the motion, finding that the BCFR personnel were entitled to absolute
immunity. The plaintiff appealed to this court in Brown v. Jenne, 941
So. 2d 447 (Fla. 4th DCA 2006), and we reversed, finding that the county
personnel were not entitled to absolute immunity. We did not, however,
decide the issue of qualified immunity.
On remand, the nine defendants involved in this appeal moved for
summary judgment on the grounds of qualified immunity. The trial
court found that “all the players were at least performing their job
accordingly and they would, therefore, under this section of the federal
statute be entitled to qualified immunity.” With respect to the BCFR
personnel, the trial court found that “[p]laintiff h a s not submitted
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evidence that their actions violated clearly established constitutional
and/or statutory law.” This appeal follows.
Summary Judgment
Orders granting summary judgment are reviewed de novo. Fla. Atl.
Univ. Bd. of Trs. v. Lindsey, 50 So. 3d 1205, 1206 (Fla. 4th DCA 2010). A
summary judgment can be affirmed only where there are no genuine
issues of material fact and the movant is entitled to a judgment as a
matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.
2d 126, 130 (Fla. 2000).
Wh e n a defendant moves for summary
judgment, the trial court’s function is to determine whether the moving
party proved the nonexistence of a genuine issue of material fact. Le v.
Lighthouse Assocs., Inc., 57 So. 3d 283, 285 (Fla. 4th DCA 2011). “‘If the
record reflects even the possibility of a material issue of fact, or if
different inferences can reasonably be drawn from the facts, the doubt
must be resolved against the moving party.’” Lindsey, 50 So. 3d at 1206
(quoting Bender v. CareGivers of Am., Inc., 42 So. 3d 893, 894 (Fla. 4th
DCA 2010)). Summary judgment is proper only where the facts are “‘so
crystallized that nothing remains b u t questions of law.’” Tolan v.
Coviello, 50 So. 3d 73, 74 (Fla. 4th DCA 2010) (quoting Cohen v. Cooper,
20 So. 3d 453, 455 (Fla. 4th DCA 2009)).
Qualified Immunity Standard
“‘Qualified immunity shields government officials from liability for civil
damages for torts committed while performing discretionary duties
unless their conduct violates a clearly established statutory or
constitutional right.’” Furtado v. Law, 51 So. 3d 1269, 1274 (Fla. 4th
DCA 2011) (quoting Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.
2008)).
“‘[Q]ualified immunity for government officials is the rule,
liability and trials for liability the exception.’” Fernander v. Bonis, 947
So. 2d 584, 588 (Fla. 4th DCA 2007) (quoting Alexander v. Univ. of N.
Fla., 39 F.3d 290, 291 (11th Cir. 1994)).
The government official has the initial burden of showing that he or
she acted within his/her discretionary authority—if the official meets
that burden, the burden shifts to the plaintiff to show the lack of good
faith on the official’s part by demonstrating that his/her conduct violated
“clearly established” constitutional rights, of which a reasonable person
would have known. Vaughan v. Fla. Dep’t of Agric. & Consumer Servs.,
920 So. 2d 650, 651-52 (Fla. 4th DCA 2005). In other words, first,
viewing the evidence in the light most favorable to the plaintiff, the
plaintiff must show that the government officials violated a constitutional
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right; and, second, if such a violation occurred, it must be determined if
that right was clearly established at the time of the incident. Mercado v.
City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005) (citing Saucier v.
Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
Claim Against BSO Officers
Appellant argues that the BSO officers affected a Fourth Amendment
seizure of the decedent by using excessive force when they threw him to
the ground, hogtied him, and handcuffed him. As succinctly stated in
Graham v. Connor, 490 U.S. 386, 395 n.10, 109 S.Ct. 1865 (1989),
A “seizure” triggering the Fourth Amendment’s protections
occurs only when government actors have, “b y means of
physical force or show of authority, . . . in some way
restrained the liberty of a citizen,” Terry v. Ohio, 392 U.S. 1,
19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889
(1968); see Brower v. County of Inyo, 489 U.S. 593, 596, 109
S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989).
Claims against law enforcement officers involving excessive use of
force must be analyzed under the Fourth Amendment “reasonableness”
standard. Graham, 490 U.S. at 396. In determining reasonableness,
“the question is whether [the] officers’ actions are ‘objectively reasonable’
in light of the facts and circumstances confronting them, without regard
to their underlying intent or motivation.” Id. at 397.
Thompson v. Douds, 852 So. 2d 299 (Fla. 2d DCA 2003), applies
Graham to a case factually similar to this case. There, an officer received
a report of an individual walking on the interstate. When the officer
encountered the individual, Magyar, he did not appear alert and told the
officer that he had high blood pressure and diabetes. The officer coaxed
Magyar into his police vehicle and took him to an abandoned gas station
to wait for an ambulance. Magyar exited the vehicle, making some
statements of his belief that the officer would try to hurt him. Another
officer arrived, and Magyar began to walk away. The officers ordered him
to stop, and he did, returning to the station. However, he again began to
walk away faster, and the officers took chase. When they caught him,
Magyar began to struggle. The officers took him to the ground, and both
officers jumped on top of the struggling Magyar. They handcuffed him,
but did not get off of Magyar’s body until it went limp. They then rolled
him over, and his lips were blue. He was transported to the hospital
where he remained in a persistent vegetative state.
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Magyar’s guardian filed a section 1983 claim against the officers
claiming the use of excessive force in a Fourth Amendment seizure. The
officers moved for summary judgment on the issue of qualified immunity,
which the trial court granted, but the Second District reversed. Applying
Graham, the court held that the force used against Magyar was
excessive. Thompson, 852 So. 2d at 306. First, the court reasoned,
Magyar was not suspected of any criminal activity. “Because serious
force is appropriate for a more serious crime and less force is appropriate
for a less serious offense, . . . the fact that Magyar had committed no
offense at all militates against the use of any force—much less the force
used in this case to effect Magyar’s detention.” Id. (internal citation
omitted). Second, Magyar posed no immediate threat to the officers or
others. Third, Magyar’s resistance did not justify the extent of force used
by the officers. Similarly to the facts of this case, the court dismissed the
officers’ claim that Magyar’s large size required them to exert the force
they did.
As to the second determination for qualified immunity, the Thompson
court found that the excessiveness of the force was clearly established at
the time of the incident, which in Thompson occurred in 1998. The court
looked first to Graham, which also involved excessive force against a
diabetic. See Graham, 490 U.S. at 388. There, an officer was suspicious
of Graham when he saw him dash into a convenience store and come
right out. Graham was in fact trying to get some orange juice because he
was going into diabetic shock. The officer stopped Graham, and despite
Graham’s protests and pleas, the officer placed him in the patrol car.
Graham exited, ran around, and then passed out. The officer handcuffed
him, and Graham ended up with a broken foot, bruises and abrasions.
Ultimately, the officers discovered that nothing had happened in the
convenience store, and Graham was released. Although the district
court and circuit court both found that qualified immunity protected the
officers against an excessive force claim, the Supreme Court held that
the claim must be analyzed under the Fourth Amendment’s “objective
reasonableness” standard and remanded for that analysis. Id. at 399. It
did not find that the officers were entitled to qualified immunity as a
matter of law.
Thompson pointed to two other cases involving the use of excessive
force, which it found clearly established the constitutional right to be free
of force similar to that used on Magyar. In Thornton v. City of Macon, 132
F.3d 1395, 1400 (11th Cir. 1998), after officers used force against two
individuals, throwing one to the ground and slamming the other into the
hood of the patrol car, the court found that any reasonable officer would
have recognized that the force used was excessive where the individuals
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were suspected of n o crime and did not pose a threat to anyone.
Similarly, in Spann v. Rainey, 987 F.2d 1110, 1114-15 (5th Cir. 1993),
the court found officers used excessive force in kicking and stomping on
an individual who was suspected of no crime. In both of these cases, as
noted in Thompson, no crime was suspected. Therefore, the use of such
great force was deemed unreasonable.
This case is most similar to Thompson. The BSO did not suspect any
criminal activity. They knew that the decedent had been in a vehicle
accident. Despite this, they threw him to the ground, lay on top of him,
and hogtied him. Such use of force against a person who has committed
no crime and is not a danger to others has been established in the
foregoing case law as excessive. Graham, Thornton, and Spann were
decided well prior to the incident in this case, which occurred in 2001.
Therefore, the law was clearly established that use of such force against
a person not suspected of any criminal activity may be excessive and
may constitute a violation of section 1983. The trial court erred in
granting summary judgment as a matter of law o n th e qualified
immunity of the officers.
The officers rely on Peete v. Metropolitan Government of Nashville &
Davidson County, 486 F.3d 217 (6th Cir. 2007), and Davidson v. City of
Jacksonville, Florida, 359 F.Supp.2d 1291 (M.D. Fla. 2005), to claim that
the Fourth Amendment is inapplicable to the seizure in this case. Those
cases both involve paramedics and not law enforcement personnel, a
considerable distinction.
In Peete, for example, the plaintiff brought an action against five
firefighters/paramedics, claiming that they used excessive force in
restraining the decedent, who was having a n epileptic seizure, by
applying weight and pressure to his body and tying his hands and ankles
behind his back.
There, the decedent’s grandmother summoned
emergency personnel to the scene. The decedent was unconscious and
uncommunicative when paramedics arrived and died of asphyxiation
caused by the paramedic care.
Analyzing whether there was a Fourth Amendment seizure, the court
cited to standard formulations of a n intentional interference with a
person’s freedom of movement, or a show of authority and a submission
to that show of authority. Id. at 220. Noting that the result must turn
on the specific purpose and the particular nature of the conduct alleged
in the complaint, the Sixth Circuit explained as follows: “[W]here the
purpose is to render solicited aid in an emergency rather than to enforce
the law, punish, deter, or incarcerate, there is no federal case authority
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creating a constitutional liability for the negligence, deliberate
indifference, and incompetence alleged in the instant case.” Id. at 221.
S e e also Davidson, 359 F.Supp.2d at 1295 (finding the Fourth
Amendment inapplicable when evidence established that, while the
plaintiff physically resisted the defendant/emergency medical personnel,
he was not “mentally present” to communicate a refusal of treatment, so
no seizure occurred).
The Sixth Circuit distinguished Peete in a case involving law
enforcement personnel. In McKenna v. Edgell, 617 F.3d 432 (6th Cir.
2010), officers arrived in advance of paramedics to investigate a call that
a man was having a seizure. When they arrived, they tried to get the
victim out of bed, and he resisted, causing injury. Firefighters arrived
and the victim was already restrained. The district court rejected the
officers’ claim of qualified immunity. The case was tried, resulting in a
damage award to the plaintiff. On appeal, the circuit court affirmed the
denial of qualified immunity to the officers. In discussing whether a right
was clearly established and whether a seizure took place, the court
reviewed Peete, which, the court noted, involved paramedics, not law
enforcement officers, applying force. 617 F.3d at 436-37. It concluded
that Peete’s “applicability depends on a defendant’s objective function or
purpose,” further expounding:
We conclude that whether the officers were entitled to
qualified immunity depends on whether they acted in a lawenforcement capacity or in an emergency-medical-response
capacity when engaging in the conduct that McKenna
claimed violated the Fourth Amendment. If the officers acted
as medical-emergency responders, then McKenna’s claim
would amount to a complaint that he received dangerously
negligent a n d invasive medical care. Under a functiondependent view of Peete, if any right to be free from such
unintentional conduct b y medical-emergency responders
exists under th e Fourth Amendment, it is not clearly
established. Peete, 486 F.3d at 219. If the defendants acted
in a law-enforcement (e.g., investigative or prosecutorial)
capacity, however, McKenna’s claim does not “look[ ] like a
medical malpractice claim,” id. at 222; rather, his claim is
that he was subject to an unreasonable seizure and search.
It is certainly clearly established that police violate the
Fourth Amendment when they handcuff people whom they
neither suspect of criminal wrongdoing nor believe to be a
danger to themselves or others.
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Id. at 439-40 (footnote omitted). See also Champion v. Outlook Nashville,
Inc., 380 F . 3 d 893, 901-02 (6th Cir. 2004) (holding that Fourth
Amendment seizure occurred when officers first on scene handcuffed and
hobbled mentally ill individual who resisted officer’s commands, resulting
in his death). Finding that the capacity in which the officers were serving
at the time of the seizure was an objective one, the court concluded that
“[i]t is not relevant, therefore, whether [the officers] h a d a lawenforcement or a medical-response intent; the focus must be on what
role their actions reveal them to have played.” McKenna, 617 F.3d at
440. In McKenna, a jury issue was presented, which was resolved
against the officers, thus negating a qualified immunity defense.
Thompson did not discuss any potential medical emergency claim,
thus implying that the officers conduct in restraining Magyar until an
ambulance arrived was clearly a law enforcement function. Indeed, in
both Thompson and in this case, the law enforcement personnel took
down the individuals, lay across them, and handcuffed them because the
individuals refused to submit to their verbal commands, a law
enforcement function. Therefore, as in Thompson, a jury question is
presented. If the officers were acting in their law enforcement capacity,
the decedent’s right to be free from the use of excessive force in his
seizure was clearly established. Th e officers were not entitled to a
summary judgment on qualified immunity as a matter of law.
Claim Against BCFR Paramedics
A s mentioned above, the actions of medical personnel are treated
differently than law enforcement officers in the few cases involving claims
against medical personnel. In this case, the actions of the BCFR
personnel alleged in plaintiff’s complaint involve, for the most part, the
paramedics’ failure to take vital signs, administer appropriate
medications a n d oxygen, a n d positioning of the decedent in the
ambulance ride to the hospital. As noted in Peete, “[t]h e plaintiff’s
excessive force claim thus looks like a medical malpractice claim rather
than a Fourth Amendment or Due Process violation.” 486 F.3d at 222.
A significant factor for the Peete court in its Fourth Amendment
analysis rested o n th e unconsciousness of the decedent when the
paramedics arrived. The court noted:
The plaintiff did not allege [intentional interference with
freedom of movement or submission to a show of authority]
in her complaint, nor is it likely that she could since Becerra
was unconscious at the time of his encounter with the
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defendants and could not perceive any restraint o n his
liberty or otherwise feel compelled to submit to a
governmental show of force.
Id. at 221 (emphasis supplied).
To emphasize this, the court
distinguished Green v. City of New York, 465 F.3d 65, 83-84 (2d Cir.
2006), in which the Second Circuit found that a Fourth Amendment
seizure h a d occurred where a non-verbal man conveyed with eye
movements his objection to paramedics transporting him, which caused
him injury. In the instant case, the decedent was confused, disoriented
and uncommunicative when he was approached by BCFR personnel. By
the time they began their treatment of him, he was already immobilized
by the BSO deputies. Therefore, the show of force had already taken
place. In the ambulance, the decedent was unresponsive and eventually
unconscious.
Peete also relied on Jackson v. Schultz, 429 F.3d 586, 590 (6th Cir.
2005), in which rescue personnel were sued for failing to provide any
medical assistance to Jackson, a shooting victim, who died while en
route to the hospital in an ambulance. The court began with the premise
that “[i]t is not a constitutional violation for a state actor to render
incompetent medical assistance or fail to rescue those in need.” Id.
Although the rule has two exceptions—the custody exception and the
state-created danger exception—neither applied. Id. For the custody
exception to apply, a restraint o n personal liberty must occur. Id.
Merely placing a person, particularly an unresponsive person, in an
ambulance does not constitute custody for purposes of the exception.
However, the Jackson court stressed that the emergency personnel did
nothing to restrain the shooting victim. Id. at 590-91. In Jackson, the
court expressly found no custody because the EMTs did nothing to
restrain Jackson, such as using handcuffs. Id. In Peete, the court found
no custody even though the EMTs used restraints and tied his hands
and ankles behind his back, on the basis that such actions of restraint
were taken while the victim was unconscious. 486 F.3d at 223. Thus,
the custody exception appears to apply where there is an attempt to
restrain personal liberty of an individual who is capable of expressing
objection to such restraint. In this case, the decedent was restrained by
the BSO prior to his transport. Applying Jackson, the paramedics would
not be liable for merely failure to treat the decedent. Applying Peete, the
decedent was unresponsive and eventually unconscious, incapable of
responding effectively to his situation.
The state-created danger exception requires three elements:
10
(1) an affirmative act by the EMTs that creates or increases a
risk that the decedent would be exposed to “private acts of
violence,” (2) a special danger to the decedent such that the
EMTs’ acts placed the decedent specifically at risk, as
distinguished from a risk that affects the public at large, and
(3) that the EMTs knew or should have known that their
actions specifically endangered the decedent.
Jackson, 429 F.3d at 591 (quoting Kallstrom v. City of Columbus, 136
F.3d 1055, 1066 (6th Cir. 1998)). Because the EMTs’ conduct in failing
to treat Jackson did not expose him to acts of violence, the exception did
not apply. Similarly, in this case the state-created danger exception does
not apply, because the decedent was not exposed to “private acts of
violence.”
In Davidson v. City of Jacksonville, 359 F.Supp.2d 1291 (M.D. Fla.
2005), a case involving a qualified immunity claim against paramedics
and fire rescue officers, the court addressed when a claim of Fourth
Amendment seizure is inapplicable due to lack of refusal of medical
treatment:
Here, while the evidence shows that Mr. Davidson physically
resisted Defendants’ efforts to diagnose and treat him, there
is n o evidence that Mr. Davidson was aware of, or was
mentally present in, the situation. Instead, it seems that
any ‘resistance’ was merely a result of the diabetic episode of
which Mr. Davidson was experiencing, and of which the
emergency medical personnel [were] attempting to treat. The
evidence before the Court establishes that Mr. Davidson was
unable to communicate with or take direction from the
medical personnel on scene. Had Mr. Davidson been lucid
and able to communicate a refusal of treatment, including
the type of restraint used, and had in fact refused treatment,
s u c h actions might properly fall u n d e r th e Fourth
Amendment. But under the facts of this case, the Fourth
Amendment is inapplicable given the lack of refusal on Mr.
Davidson’s part.
Id. at 1295. Based upon the foregoing cases, we agree with the trial
court that the law was anything b u t clearly established that the
paramedics and fire rescue personnel were violating a constitutional
right of the decedent in their handling and treatment of him.
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Alternatively, appellant claims that BCFR personnel violated the
decedent’s Fourteenth Amendment d u e process rights through
“deliberate indifference.” The court in Mann v. Taser Int’l, Inc., 588 F.3d
1291, 1306-07 (11th Cir. 2009), held that to prevail on a Fourteenth
Amendment claim for deliberate indifference to a serious medical need, a
plaintiff must show: “(1) a serious medical need; (2) the defendants’
deliberate indifference to that need; and (3) causation between that
indifference and the plaintiff’s injury.” (citing Goebert v. Lee Cnty., 510
F.3d 1312, 1326 (11th Cir. 2007)). Such claims were founded on the
Eighth Amendment’s proscription on cruel and unusual punishment and
treatment of prisoners. See Estelle v. Gamble, 429 U.S. 97, 104-05, 97
S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). That was made applicable to the
states and to pre-trial detainees through the Fourteenth Amendment.
See City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244-45 (1983). We
have been unable to find a case in which the deliberate indifference claim
has been successfully maintained against emergency personnel, as such
claims have been limited to cases involving medical care during pre-trial
detention and imprisonment. Indeed, federal courts have consistently
held that there is no federal constitutional right to rescue services. See,
e.g., Brown v. Commonwealth of Penn., Dep’t of Health Emergency Med.
Servs. Training Inst., 318 F.3d 473, 478 (3d Cir. 2003) (“[T]here is no
federal constitutional right to rescue services, competent or otherwise.”);
Salazar v. City of Chicago, 940 F.2d 2 3 3 , 237 (7th Cir. 1991)
(“Government generally has no constitutional duty to provide rescue
services to its citizens, and if it does provide such services, it has no
constitutional duty to provide competent services to people not in its
custody.”); Bradberry v. Pinellas Cnty., 789 F.2d 1513, 1517 (11th Cir.
1986) (“The Constitution, as opposed to local tort law, does not prohibit
grossly negligent rescue attempts nor even the grossly negligent training
of state officers.”).
The BCFR personnel in the case at bar were there for the purpose of
rendering medical assistance to the decedent, who was uncommunicative
after being involved in a rollover car accident. Like the men in both Peete
and Davidson, the decedent did not cooperate with efforts to provide him
medical treatment. A section 1983 claim involves the violation of a
clearly established constitutional right. Mercado, 407 F.3d at 1158-59.
Given the state of the law both at the time of this incident and even now,
we cannot say that there was a clearly established constitutional right
that the BCFR personnel violated. Therefore, BCFR personnel are
entitled to qualified immunity in this case.
For the foregoing reasons, we reverse the order of summary judgment
on qualified immunity as to the BSO officers and remand for further
12
proceedings consistent with this opinion. We affirm the trial court’s final
judgment as to the BCFR personnel.
POLEN, J., and EHRLICH, MERRILEE, Associate Judge, concur.
*
*
*
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John B. Bowman, Judge; L.T. Case Nos. 03-10097 (02)
and 03-18036 (05).
Michael Winer of The Law Office of Michael Winer, P.A., Fort
Lauderdale, for appellant.
Mark A. Emanuele and Craig S. Dawson of Panza, Maurer & Maynard,
P.A., Fort Lauderdale, for appellees Karl Froling and Kenneth Loukinnen.
David M. DeMaio and Christopher C. Wike of Ogletree, Deakins, Nash,
Smoak & Stewart, P.C., Miami, for appellee Hayes Bowen.
Chris Kleppin of Glasser, Boreth & Kleppin, Plantation, for appellee
Ken Swan.
Michael R. Piper and Christopher J. Stearns of Johnson, Anselmo,
Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for appellees
Leonard Smith, Todd Chase, Willie Dowe, Kenneth Autenrieb, and Eli
Thomasevich.
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