Appeals Court Denies Immunity To Cops Who Stood Idly By While Someone They Said Had Eaten Coke Died Of An Overdose

Qualified immunity rulings are an unqualified mess. The question doesn't revolve around whether or not rights were violated. In most cases, they were.

Instead, the question revolves around whether or not the rights violation was clearly established." The Supreme Court created this doctrine decades ago. And ever since then, it has been making it more difficult to demonstrate rights violations are so obvious even the officers committing them would have known they were violating rights.

The Supreme Court has started to walk back a bit of its jurisprudence, suggesting courts be a little less specific when searching case law for on-point cases. But that's very recent and it has yet to become more than a sporadic trickle when it comes to lower courts being a bit less exacting when issuing qualified immunity rulings.

This is one of the clear ones, though. The Second Circuit Appeals Court says officers can't tell pretty much everyone involved in the jail admissions process an arrestee has ingested drugs and then fail to do anything whatsoever about this dangerous situation.

The ruling [PDF] opens with a recitation of the facts. And the facts are as depressing as they almost certainly are common.

Terrelle Thomas was the passenger in a vehicle stopped by police officer Daril Foose. According to the officer, Thomas spoke as though he had cotton mouth" and was possibly concealing a large amount of an unknown item" inside his mouth. The officer also observed that Thomas's lips were pasty white" and his face was covered" with a powdery substance."

Officer Foose believed Thomas had consumed an unknown (but presumably illicit) drug (or drugs) during the stop to avoid being caught with them in his possession. However, Thomas told Officer Foose he only had marijuana in his possession and that his white pasty" lips could be explained by the candy cigarette he had recently consumed.

It wasn't a very credible alibi and it was soon undone by the officer's next observation:

Officer Foose quickly concluded this was a lie because she observed cocaine rocks fall out of . . . Thomas's shirt . . . and she failed to find any candy cigarettes."

Thomas was arrested. While he was awaiting processing, Officers Foose and (jail officer) Dan Kinsinger informed four other officers that they believed Thomas had ingested cocaine. All of the officers testified that they saw physical indications that this was likely the case, citing many of the same things Officer Foose had. One even remarked that this likely meant Thomas would need immediate medical attention.

Corporal Johnsen acknowledged the seriousness of ingesting cocaine by warning . . . Thomas that he could possibly die from ingesting drugs."

The officers agreed Thomas should be moved to a nearby detention center, even though this detention center lacked the medical equipment to verify whether or not Thomas had ingested narcotics. This didn't make much sense, given that all the officers agreed this is most likely what had happened. It made even less sense considering Officer Foose's actions were (supposed to be, anyway) guided by her employer's policies.

Harrisburg Police Department policy dictates that officers take arrestees to the hospital if the
arrestees have consumed illegal narcotics in a way that could jeopardize their health and welfare.

That was ignored. Thomas was moved to a detention center with inadequate medical facilities. Not that it would have mattered. No one bothered to provide any sort of medical attention to the arrestee, despite being informed Thomas had mostly likely consumed an unknown amount of crack or cocaine.

Instead, this happened:

[T]he officials placed Thomas in a cell without any medical care or observation. Less than two hours after Thomas's arrest, surveillance video showed Thomas falling backwards onto the floor, hitting his head, and suffering cardiac arrest.

It was only at the point that Thomas was in the process of dying that anyone involved in his arrest or jailing paid any attention to his health. By then, it was too late. He died three days later in intensive care. The cause of death was exactly what the officers talked about, but refused to take any action to resolve: cocaine and fentanyl toxicity."

The lower court denied qualified immunity to officers Johsen, Salazer, Banning, Foose, Carriere, and probation officer Kinsinger, ruling that the officers had violated Thomas's rights by failing to intervene (with each other's indifference to his drug ingestion) and failing to provide medical care - both rights the lower court considered to be clearly established.

The Appeals Court upholds about half of this. It allows the officers to escape the failure to intervene charges, but won't grant them immunity to sidestep their refusal to seek or render medical assistance to an overdosing arrestee.

The officers claimed the lower court wasn't specific enough when analogizing the facts of this case to past case law clearly establishing a right to medical assistance in situations like these. Wrong, says the Appeals Court. The correct amount of specificity was used. Just because it wasn't specific enough to allow these officers to escape the lawsuit doesn't mean it was the wrong standard.

We may rely on general principles to find that the facts here present a violation that is so obvious" that every objectively reasonable government official facing the circumstances would know that the [Officers'] conduct. . . violate[d] federal law when [they] acted." In such a case, general standards can clearly establish' the answer, even without a body of relevant case law. In other words, officials can still be on notice that their conduct violates established law even in novel factual circumstances."

And it's painfully obvious in this case that the officers should have known their actions were unconstitutional.

As applied to the facts of this case, we hold therefore that when an officer is aware of the oral ingestion of narcotics by an arrestee under circumstances suggesting the amount consumed was sufficiently large that it posed a substantial risk to health or a risk of death, that officer must take reasonable steps to render medical care.

It's just that simple. All the officers agreed Thomas had ingested an unknown quantity of narcotics. All of them likely knew (although only one said it out loud) that Thomas was likely in a life-threatening situation (albeit one of his own making). One officer definitely knew PD policy required seeking immediate medical care. But they all agreed to move someone on the verge of a fatal overdose to a jail with inadequate medical facilities. Then they just walked away from this, allowing the jailers to engage in their own indifference until Thomas went into cardiac arrest.

Because this cadre of cops and jailers decided doing nothing was better than doing the bare minimum, they're still on the hook for Thomas's death. Sure, other people will be paying the bill when the inevitable settlement arrives, but these officers will no longer have the luxury of pretending they're too (legally) stupid to be held accountable for their actions.