Officers immunized in the event of non-summons of medical assistance

Metropolitan-Business News

Tuesday 16 November 2021

Page 1

Ninth circuit:

Officers immunized in the event of non-summons of medical assistance

Dissent Accuses Majority of Presenting a “Highly Verified Account” of the Facts and Says the Urgency Was Clear

By a MetNews editor

U.S. Ninth Circuit Court of Appeals Judge Paul J. Watford, in a dissent filed yesterday, accused two colleagues of misrepresenting the facts by claiming the dismissal of a lawsuit accusing two San police officers. Diego for causing the death of a black woman they had arrested by failing to call for medical help when she started crying for help.

The author of the majority opinion was Third Circuit Judge D. Michael Fisher, sitting by designation. Ninth Circuit Judge Patrick J. Bumatay joined in the decision.

Qualified immunity applied to Constables Lawrence Durbin and Jason Taub, the majority said, as the allegations in the complaint did not reflect objective unreasonableness or objective willful indifference and the right of the arrested person to be arrested. medical treatment to be summoned in view of the facts was not “clearly established”.

Traffic stop

Durbin and Taub arrested 24-year-old Aleah Jenkins at a traffic stop after finding she was subject to an arrest warrant for a methamphetamine offense. In the police car, she vomited; an officer summoned medical assistance; she said she was pregnant and the call for help was canceled; on the drive to the police station, she screamed and moaned and begged that the car be stopped.

At one point, Durbin stopped the car. He stroked her and said:

“I need you to stay awake.”

She insisted she was sick, asked for help, and screamed. Durbin told him: “Stop him” and assured that his officer was “fine”.

At the police station, she took her fingerprints, then placed her back in the police car. A few minutes later, she was found unconscious; the paramedics were summoned; she fell into a coma and died nine days later.

Jenkins’ 6-year-old son brought a lawsuit through his guardian ad litem. The action was dismissed with prejudice by District Court Judge Cathy Ann Bencivengo for the Southern District of California.

Watford’s dissent

Disagreeing with the claim, Watford said:

“The majority opinion offers a truncated and highly sanitized account of the events at the origin of this trial, at least as alleged by the plaintiff. Although at this stage of the case we are bound to accept the factual allegations of the complainants as true, the majority opinion ignores most of the facts alleged in the complaint. The complaint also expressly incorporates by reference content from a publicly available body camera video that captures many relevant events, but the majority opinion also turns a blind eye to much of what that video describes.

Watford continued:

“The complainants’ complaint plausibly alleges that Aleah Jenkins, a young African-American woman, died in police custody because the officer in charge of transporting her to police headquarters took no action when she suffered an acute medical emergency.

“During an hour’s drive. Constable Lawrence Durbin ignored obvious signs of Ms Jenkins’ medical distress, obviously because he believed she was’ faking ‘her symptoms as part of a ploy to avoid going to jail . As I will explain. JKJ, the plaintiff in this case and Ms Jenkins ‘minor son, plausibly alleged that no reasonable officer in Constable Durbin’s place could have considered Ms Jenkins’ rapidly deteriorating state of health. like some kind of trick.



Details Facts

The judge examined in detail what the body camera video showed, including what happened after Durbin drove to the police station parking lot:

“Constable Durbin arrives at police headquarters and walks into the parking lot. When he opens the back door of his patrol car. Ms. Jenkins is lying face down in the backseat and appears unconscious… Constable Durbin slaps Ms. Jenkins on the back several times to wake her up, but she remains face down, breathing unusually fast. Constable Durbin said to Ms. Jenkins, “Stop hyperventilating … you’re doing this to yourself. [begins] contractions and tremors while lying face down in the backseat. ‘…

“Instead of calling for medical help. Constable Durbin takes Ms. Jenkins’ fingerprints. He asks her to get out of the car but receives no response. Constable Durbin then pulls Ms Jenkins out of the car by the arms, asking her to try to put her legs under her as her torso comes through the threshold of the car door. Her body is limp, she seems unable to stand on her own. and her legs simply drop to the ground, like a rag doll… As Agent Durbin drags Ms. Jenkins out of the car in this manner, she screams in distress and breathes unusually fast.

Abnormal breathing

The account proceeds:

Now lying on her side on the parking lot floor, Ms. Jenkins mutters softly, ‘Help me,’ but Constable Durbin ignores her and tells an approaching officer. “She doesn’t want to go to jail.”… As Agent Durbin talks with the other officer about the fingerprinting mechanisms, Ms. Jenkins remains on the ground, shaking, mumbling incoherently and breathing unusually fast… L Officer Durbin asks Ms Jenkins if she wants water, but she remains listless on the ground and does not respond.

“Constable Durbin and the other officer grab Ms. Jenkins’ arms, which are still handcuffed behind her back, and rest each of her index fingers on a mobile fingerprinting unit while she is lying on the sidewalk. from the parking lot. Although she was able to walk on her own less than 90 minutes earlier. Mrs. Jenkins doesn’t even seem able to sit up on her own… She seems to come in and out of consciousness, and her body contracts and shakes.

Durbin then put Jenkins back in the car and warned her that her lack of cooperation would result in additional charges.

“Ms. Jenkins is now locked in the back seat of the patrol car, lying on her stomach, handcuffed and in obvious medical distress,” Watford recited.

He noted that when the officer returned 11 minutes later, he was unsure if she was breathing. It was then that the paramedics were summoned.

She never regained consciousness.

The fisherman’s opinion

“We do not believe that these facts plausibly allege objective unreasonableness or deliberate objective indifference amounting to reckless disregard,” Fisher wrote. “To be sure, we know in hindsight that Jenkins had serious medical need. “

But that need, he said, only became evident when Durbin returned to the car and found Jenkins unconscious, in which case he radioed for medical assistance.

“While it is now evident that Jenkins ingested drugs, we are not allowed to project this knowledge back to the end of this story,” the visiting lawyer said. “Because we cannot say that Durbin behaved objectively unreasonably or with objective willful indifference by failing to recognize, earlier than him, that Jenkins had a serious medical need, we conclude that JKJ did not plausibly alleged a violation of Jenkins’ constitutional rights. “

Determining that the officers did not violate a “clearly established” constitutional right to preclude the application of qualified immunity, Fisher said: “Here, the alleged nature of the violation of officers’ conduct, in failing to recognize and respond to Jenkins’ serious medical need, was not clearly established in the particular context of this case. Dissent suggests this is yet another case involving an official ignoring an inmate’s obvious medical needs. But calling Jenkins’ medical need “obvious” misses the forest for the trees. The case concerns an inmate who showed signs of medical distress, but also masked the seriousness of these signs by stating that she was pregnant, did not use drugs and wanted to avoid jail. None of the precedents cited by JKJ come close to showing that “any reasonable public servant” would have understood that acting like Taub and Durbin did. given the conflicting facts they had to face at the time, violated the Constitution. “

Watford’s view

In disagreement, Watford wrote:

“I agree with my colleagues that it was not objectively unreasonable for Constable Durbin to cancel the ambulance call while he and Ms. Jenkins were still at the scene of the traffic stop … . events that occurred from that time on….

“The allegations of the complaint, supplemented by the video, plausibly suggest that during the journey to the police headquarters (and certainly on arrival there). Constable Durbin’s conduct has become objectively unreasonable. The signs of medical distress Ms. Jenkins was exhibiting – her vomiting, moaning, screaming, irregular breathing, repeated calls for help, inability to sit or stand on her own. and loss of control over one’s limbs – are well outside the range of behaviors that any healthy person would exhibit. Any reasonable officer observing these signs would have recognized that Ms Jenkins was in need of immediate medical attention. The majority view is simply wrong when it concludes that the first point at which a reasonable officer would have realized Ms Jenkins had a serious medical need is when Officer Durbin returned to the car after an absence of more than 11 minutes and found that she had stopped breathing.

He said it was so obvious Jenkins was in distress that one can easily find objective unreasonableness. He argued: “Ms. Jenkins was showing clear signs that she was undergoing a serious medical emergency, and the legal constraints governing an officer’s conduct in these circumstances were clearly established. Any reasonable officer would have known that it is illegal to fail to seek immediate medical attention from an arrested person facing a medical emergency. “

The case is JKJ v. City of San Diego, 20-55622.

On March 15, 2019, the San Diego District Attorney’s Office announced that no criminal charges would be laid against the three officers involved, Durbin, Taub, and Nicholas Casciola. The office noted that Jenkins had “up to 17 times a lethal dose” of methamphetamine in his blood.

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