Civil Law and Liability Chapter 11 Liability and Wrongful Custodial Death Dr. Andrew Fulkerson Southeast Missouri State

1. Civil Law and Liability Chapter 11 Liability and Wrongful Custodial Death Dr. Andrew Fulkerson Southeast Missouri State University

2. Goal: To provide students with information on wrongful custodial death liability issues. Objectives: Describe wrongful death liability theories according to state tort and § 1983 actions. Describe use-of-force factors that may emerge from wrongful restraint deaths. Describe special duty of care. Describe the medical / psychological liability issues surrounding wrongful deaths. Describe "special needs" prisoners. Describe the liability issues surrounding suicides in detention. Describe the policy and training implications in accordance with the relevant liability issues.

3. Wrongful Custodial Death Theories of Recovery • Intentional negligence • Gross negligence • Deliberate indifference

4. Theories of Recovery • Agency policies or procedures were proximate cause of death • Agency fails to adhere to recognized standards of industry or profession • Chronically fails to address problems in agency • Fails to correct constitutional deficiencies • Allegation that department fails to keep up with changes and reforms

5. Wrongful Death Common Allegations • Excessive force • Assault and battery • Improper use of restraints • Gross negligence or deliberate indifference to medical needs • Failure to assess medical condition • Failure to monitor medical condition • Failure to provide medical care • Delay in providing medical care • Officers acted outside scope of authority

6. Administrator/Supervisor Liability • Failure to train • Failure to supervise • Failure to provide proper equipment • Failure to provide for "special needs" inmates • Negligent entrustment of specialized equipment to improperly trained officers

7. Administrator/Supervisor Liability • Failure to conduct internal investigations of complaints, problems • Condonation of excessive force practices • Cover-up of wrongful death facts and evidence

8. Liability Allegations • Suits will include multiple claims • Some claims will be dismissed • Each claim should be treated seriously and defended

9. Wrongful Death Suits • Claims are based on state tort law • Standards vary among states • If inmate dies in custody and department failed to follow procedures a presumption of negligence may arise • Suit brought in name of estate of decedent

10. Wrongful Death - Statutory Provisions • Who may file • Who are beneficiaries • Damages not subject to claims against estate • Court must approve filing of suit • But, does not consider merits of complaint

11. Factual Basis of Wrongful Death Claims • Excessive force • Custodial suicide • Sudden death (not suicide)

12. Damages • Conscious pain and suffering • Medical expenses • Funeral expense • Loss of support • Loss of consortium and companionship

13. Standards • Did officer create unreasonable risk to another person • When imposing custodial control, officer has duty to provide reasonable care • Duty to take reasonable precautions to ensure health and safety of persons in custody

14. Negligence Elements • Legal duty • Breach of duty • Proximate cause • Actual injury

15. Basis of Legal Duty • Customs • Laws • Judicial decisions • Agency regulations

16. Beach of Duty • Failure to act in accord with legal duty and responsibility • Police liable only to specific persons, not to public at large

17. Breach Must Be Proximate Cause of Injury • Close causal link that officers action or inaction caused injury • "But for" officers actions, injury would not have occurred

18. Proximate Cause • Proximate causation defined differently in different states • States may require higher level of negligence before finding liability

19. Tindall v. Multnomah County, (1977) • Officer took intoxicated man to jail after hospital said they not accept drunks • Officer not tell detention center that he had fallen and had bump on head • Statute required treatment at treatment center only when inmate incapacitated, or in immediate danger, and hospital was available • Court found for ∆

20. Brinkman v. City of Indianapolis, (1967) • Officer took very sick man to jail instead of hospital • Provided no medical care • Notified family he could not post bond until morning • Court found for π

21. Special Duty of Care • If officer has reason to believe arrestee poses danger to himself

22. Special Duty of Care • If person has diminished capacity • Cannot exercise level of care of an ordinary person • Intoxicated or mentally ill • Officer must take reasonable steps to provide care for arrestee

23. Special Duty of Care-Predicates • Officer's knowledge of arrestee's mental condition • Extent to which condition interferes with arrestee's ability to exercise ordinary care • If foreseeable that arrestee's condition creates hazard, then general duty of care required of police becomes a special duty that may result in liability for breach of duty

24. Special Duty of Care • Fruge v. City of New Orleans, 613 So. 2d 811 (La. Dist. Ct. App. 1993)

25. Del Tufo v. Township of Old Bridge, (1996) • Arrestee died of cocaine overdose while in custody • Officers responded to traffic accident • Tufo sitting at wheel with motor running • Officers tried to subdue and restrain him • Tufo became violent • More officers assisted • Tufo restrained in back seat with hands behind back • He kicked windows

26. Del Tufo v. Township of Old Bridge, (1996) • During transport he began shaking violently • Police HQ he collapsed outside car • Officer removed cuffs, began CPR and called for medical assistance • Died hour later at hospital from cardiac failure due to drug OD (1.5 to 3.5 grams of cocaine) • Police have duty to provide care for arrestees • But arrestee has duty to advise officers of drug use

27. Del Tufo v. Township of Old Bridge, (1996) • Drug user not the same as elderly person or mentally ill person • π failed to prove officers actions were proximate cause of death • Comparative fault was used as defense • Individual responsibility for voluntary behavior

28. Brown v. Lee, (1994) • Prisoner died in custody after overdose of "ecstasy" • Walking in middle of traffic, sweating, and grimacing • Arresting officer detected odor of alcohol • π denied drug use, but acted hyper and was sweating • During booking process, he said he was fine • Trustee observed him during night, was shaking, trouble breathing • Trustee called for officers • Responding officers found him dead

29. Brown v. Lee, (1994) • Autopsy found death from drug overdose • Court found officers owed higher duty of care to intoxicated person • Arrestee denied drug use and denied medical care when offered, • And because drug use not usually fatal, • Court dismissed complaint • Unreasonable to impose duty to provide medical treatment to every intoxicated person in custody

30. Special Duty of Care • Existence of special duty of care is decided on case-by-case basis • Police must provide level of care and caution when taking custody of persons who show signs of intoxication or mental illness • Legal duty is obligation that is recognized by court that requires officer to act or refrain from acting in certain situations

31. Special Duty of Care • π must prove existence of duty, breach of duty, and breach was proximate cause of injury • Proximate cause = "but for" cause • Decedent's medical and psychological history and actions prior to death are important factors in determining proximate causation • Degree of knowledge of arrestee's condition by officer

32. Figure 11.1 Liability decision-making model in police custodial deaths

33. § 1983 Wrongful Death Claims • Wrongful death is cause of action in all states • Can be used as basis for suit under § 1983

34. § 1983 Wrongful Death Claims • Wrongful death claim may be filed if death caused by: • Excessive force • Failure to address medical needs • Any other constitutional violation • If conduct of ∆ was proximate cause of death

35. § 1983 Wrongful Death Claims • Unexpected custodial death cases filed under § 1983 evaluated on basis of 4th and 14th Amendment, standards of • "deliberate indifference” • "objective reasonableness" • "conduct shocking to the conscience"

36. Figure 11.2 Sudden deaths in police custody liability issues matrix

37. Excessive Force Claims • Sudden death during restraint may involve violent behavior of arrestee • If arrestee is violent, officer may use higher level of physical control • Complaint will allege excessive force by officer

38. Estate of Phillips v. City of Milwaukee, 123 F.3d 586(7th Cir. 1997)

39. East v. City of Chicago, (1989) • During drug raid, East swallowed packet of cocaine • 4 hours later while in interrogation room, he began hallucinating • East yelling, and trying to hide under table • Officers kicked him in head and between legs • East told them he had taken cocaine • Officers ignored him, said "you're just afraid to go to jail." • East placed in cell with another inmate who told them he needed doctor • Paramedics called and took East to hospital • East died

40. East v. City of Chicago, (1989) • Court used the "shocks the conscience" test for a post-arrest detainee • East was at police station in custody • Officers were liable for beating East • Also found deliberate indifference to medical needs • Further liable for failure to train officers in appropriate use of force

41. Extent of Force • Extent of force judged according to "reasonableness standard" of Graham • Objective test • Intent and motivation is not the test • How much force would reasonable person use under circumstances

42. Factors in Determining Reasonbleness of Force • Severity of crime • Resistance level of arrestee • Threat posed by arrestee • Whether situation was rapidly changing? • Was arrestee escalating level of force? • Officers must react quickly • Numerous variables must be evaluated • Court will examine totality of circumstances

43. Use of Restraint Claims • Use of "maximal restraint" may be alleged to have contributed to death

44. Use of Restraint Claims • Asphyxiation may result to a "hogtied" arrestee • positional asphyxiation • postural asphyxiation • restraint asphyxiation • compressional asphyxiation • mechanical asphyxiation

45. Use of Restraint Claims • Asphyxiation may also result from weight of officer's body on subject during period of control and restraint

46. Use of Restraint Claims • ME autopsy or independent autopsy may prove or disprove claim

47. Animashaun v. O'Donnell, (1994) • Arrestee under influence of cocaine and phencylidine • Restrained and lying face down on ground • Experienced breathing difficulty • Transported to hospital in maximally restrained position • Pronounced dead at hospital

48. Animashaun v. O'Donnell, (1994) • Claim death caused by positional asphyxia from restraint methods • City defended on basis they not aware that such restraint methods would cause positional asphyxia • Estate offered memo from similar death in 1988 • Court held memo placed city on notice of the problem • City deliberately ignored this information • Officers not trained on risks of maximal restraint methods • Omission amounted to deliberate indifference

49. Curz v. City of Laramie, Wyoming, 2001) • Hogtying person with diminished capacity was excessive force • Cruz was naked and running around wildly • Police believed he was on some drug and called ambulance • Attempts to verbally calm Cruz were not successful • He fought officers and was restrained with handcuffs • A nylon strap was placed on ankles and attached to cuffs • Cruz calmed down and officers saw his face go white • They removed the restraints • EMTs did CPR and Cruz died at the hospital

50. Curz v. City of Laramie, Wyoming, 2001) • Autopsy showed large amount of cocaine in system • Expert witness for π testified Cruz died from restraint asphyxia • Expert for ∆ testified he died from cocaine overdose • Factual dispute as to whether Cruz was hogtied or hobbled • District Court held Cruz would be hobbled if his hands and feet separated by two feet or more. Less would be hogtying. Cruz was hogtied. • Appellate court held it was apparent Cruz was suffering from either mental condition or drug intoxication • Hogtying person with diminished capacity was excessive force • Liability attached for failure to train officers in use of hobbling restraints instead of hogtying