P1251328594BvyYc

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

• Intentional negligence
• Gross negligence
• Deliberate indifference

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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

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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

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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

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Administrator/Supervisor Liability

• Failure to conduct internal investigations of
  complaints, problems
• Condonation of excessive force practices
• Cover-up of wrongful death facts and evidence

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Liability Allegations

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

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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

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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

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Factual Basis of Wrongful Death Claims

• Excessive force
• Custodial suicide
• Sudden death (not suicide)

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Damages

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

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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

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Negligence Elements

• Legal duty
• Breach of duty
• Proximate cause
• Actual injury

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Basis of Legal Duty

• Customs
• Laws
• Judicial decisions
• Agency regulations

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Beach of Duty

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

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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

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Proximate Cause

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

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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 ?

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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 p

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Special Duty of Care

• If officer has reason to believe arrestee poses
  danger to himself

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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

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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

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Special Duty of Care

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

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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

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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

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Del Tufo v. Township of Old Bridge, (1996)

• Drug user not the same as elderly person or
  mentally ill person
• p failed to prove officers actions were proximate
  cause of death
• Comparative fault was used as defense
• Individual responsibility for voluntary behavior

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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
• p 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

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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

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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

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Special Duty of Care

• p 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

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Figure 11.1 Liability decision-making model in
police custodial deaths
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1983 Wrongful Death Claims

• Wrongful death is cause of action in all states
• Can be used as basis for suit under 1983

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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

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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"

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Figure 11.2 Sudden deaths in police custody
liability issues matrix
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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
  

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

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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

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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

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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

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Use of Restraint Claims

• Use of "maximal restraint" may be alleged to have
  contributed to death

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Use of Restraint Claims

• Asphyxiation may result to a "hogtied" arrestee
• positional asphyxiation
• postural asphyxiation
• restraint asphyxiation
• compressional asphyxiation
• mechanical asphyxiation

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Use of Restraint Claims

• Asphyxiation may also result from weight of
  officer's body on subject during period of
  control and restraint

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Use of Restraint Claims

• ME autopsy or independent autopsy may prove or
  disprove claim

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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

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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

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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

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Curz v. City of Laramie, Wyoming, 2001)

• Autopsy showed large amount of cocaine in system
• Expert witness for p 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

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Price v. County of San Diego, 990 F. Supp. 1230
(S.D. Cal. 1998)
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Restraints

• Graham standard of use of force is also applied
  to use of restraints
• Liability attaches if excessive force is used and
  is proximate cause of injury

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Restraints

• Use of restraints must be reasonably related to
• actions of arrestee
• need to control arrestee
• safety of officer

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Restraints

• Unreasonable to use restraints
• if not appropriate to the need
• officers not properly trained in use of
  restraints
• use is violation of policy

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Restraints

• Court will view the use of restraints by the
  totality of circumstances
• Cause of death
• Person's medical and psychiatric condition
• Use of intoxicants
• Restraints used
• Alternatives available
• Officers perceptions of situation
• Continued resistance of arrestee

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Medical-Psych Needs-Deliberate Indifference

• Basis for duty to protect detainee from harm
• Government agents have detained person
• Detainee does not have ability to provide for own
  needs
• Government now assumes that responsibility

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Medical-Psych Needs-Duty

• Duty begins at point of arrest
• Duty continues through detention
• Police not guarantors of person's health and
  safety
• Liability arises only if deliberately indifferent
  to medical-psych needs

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Medical-Psych Needs-Duty

• 14th Amendment due process requirement - more
  than negligence
• Cities have duty to provide necessary medical
  care for persons in custody
• Deliberate indifference is very fact-specific
  test
• Inconsistent results from court decisions
• Provides little clear guidance to cjs
  practitioners

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Failure to Train

• Theory of recovery officers not properly
  instructed or trained regarding
• Use of force
• Use of restraints
• Recognition of drug impairment
• Hazards related to drug-induced violence
• Dealing with "special needs" subjects

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Cases

• Elmes v. Hart, (1994)
• Cottrell v. Caldwell, (1996)
• Simpson v. Hines, (1990)

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Custodial Suicides

• Custodial suicide serious issue for corrections
• Litigation increased since 1970
• p experienced trend of success until 1990s

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Custodial Suicides-Claims

• Confining agency failed in reasonable measures to
  prevent suicides
• Deliberate indifference by failing to screen
  inmates for suicidal tendencies
• Failure to recognize signs of suicidal tendencies
• Failure to train personnel
• Failure to provide safe environment (fail to
  protect inmate from self)

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Custodial Suicides-Claims

• Failure to search inmate and find items used in
  suicide
• Defective design of facility
• Failure to watch inmate
• Failure to provide mental health services

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Custodial Suicides-Claims

• Complaints usually allege multiple theories of
  recovery

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Frey v. City of Herculaneum, (1995)

• Intoxicated arrestee hanged himself with sheets
• Estate claimed deliberate indifference to medical
  needs
• Knew or should have known he was suicide risk
• Knew or should have known he was in need of
  immediate medical care
• Inadequately monitored cells
• Failed to remove dangerous items from cells
• Knew or should have known jail was defective and
  dangerous

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Suicide and Deliberate Indifference

• Deliberate indifference originated in medical
  care-Estelle v. Gamble
• Expanded to pre-trial detainees in Bell v.
  Wolfish
• Liability attaches where officials "knew or
  should have known" of risk (Farmer v. Brennan)

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Suicide and Deliberate Indifference

• Hare v. City of Corinth, (1996) applied Farmer
  standards to jail suicide Jail inmate threatened
  suicide
• Officer checked on inmate and did not remove a
  blanket from cell
• Officer thought inmate too weak to tear blanket
• p must show deliberate indifference to "strong
  likelihood" of suicide

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Suicide and Deliberate Indifference

• Deliberate indifference means
• Officials knew or should have known inmate was
  suicide risk
• Steps not taken to prevent suicide
• Officers and agency were deliberately indifferent
  to inmate's medical or mental health needs

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Popham v. City of Talladega, (1990)

• Popham placed in holding cell-he was intoxicated
• Shoes, socks, belt and contents of pants removed
• Cell monitored by closed circuit TV
• Monitored physically periodically
• Last physical check was 11 pm.
• 5 am he was found hanging from bars with his blue
  jeans
• Court held officials were not deliberately
  indifferent
• Applied the "strong likelihood" test
• Mere possibility is not enough

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Bell v. Stinger, (1991)

• Intoxicated inmate threatened to kill himself
• Officers failed to remove his belt after search
• Not establish a "strong likelihood" of suicide
• Not deliberate indifference

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Sanders v. Howze, (1999)

• Weeks after confinement, inmate removed blade
  from disposable razor
• Cut wrists in suicide attempt
• Transported to hospital
• Later sent to state hospital where he stayed
  several months
• Returned to jail and placed in general population
• Within two days he used pencil to open old cut
  wounds
• Taken to state hospital again

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Sanders v. Howze, (1999)

• Returned to jail again and placed in observation
  cell
• County petitioned court for mental evaluation
• While pending, he hanged himself with bed sheet
• Court held no deliberate indifference to needs of
  detainee
• Officials followed policy in response to his
  actions
• Officials had qualified immunity

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Suicide Risk Factors

• Do inmates with suicidal tendencies have a
  suicide "profile"?
• If so, detention facilities should be able to
  identify potential suicides
• p will argue that this can be done, and will cite
  supporting studies

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Suicide Risk Factors

• Suicide profiles are controversial
• Methodology may be questioned
• Studies suggesting existence of profiles do not
  compare the subjects with other prisoners
• Do suicide profiles fit all inmates in all types
  of facilities?
• Arguably, a "typical" suicide does not exist

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Suicide Risk Factors

• Factors do exist that should be used to assess
  risks of certain inmates
• Used in housing assignments
• Determining need for medical-psych treatment
• Determining need for monitoring inmate
• Need for removal of items used in suicides

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Suicide Risk Factors

• Fact that inmate met a suicide "profile" does not
  support claim of liability
• But, it will be a fact used by p in building case

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Prisoner Suicide Awareness Factors

• Nature of arrest/transporting from transporting
  officer
• Prisoner's mental state/mental health history
• Prisoner expresses feelings of hopelessness
• Prisoner expresses he is thinking about killing
  himself
• Prisoner's past history of suicide attempts
• Prisoner's intoxicated state
• Prisoner shows signs of depression
• Prisoner shows concern about a loss job, family,
  position in community
• Prisoner's behavior is anxious, afraid, angry,
  strange
• Prior arrests and convictions
• Prisoner's medical/medication history
• Prisoner is charged with a "shocking" crime

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Zwalesky v. Manistee County, (1990)

• Detainee hanged himself 90 minutes after being
  placed in detox cell
• Arrested for spouse abuse
• Intoxicated
• Threatened to kill relatives, transporting
  officer and self
• No showing jail officials violated any clearly
  established right of inmate
• Summary judgment for ?
• Court held that constitutional right to medical
  treatment does not include constitutional right
  to screening for psychological problems

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Estate of Frank v. City of Beaver Dam, (1996)

• Detainee committed suicide in jail
• Officer told detainee exhibited severe mood
  swings during transport to jail
• But made no threats, not cause disturbance,
  stagger or slur speech
• No suicidal actions
• No behavior to make officers believe he a suicide
  risk
• He was quiet and unresponsive as he went to cell
• When he got to cell he ate breakfast and had a
  telephone conversation
• Nothing to indicate suicidal tendencies
• Court dismissed case
• Officers entitled to qualified immunity not
  deliberately indifferent to detainee

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Vinson v. Clarke County, Alabama, (1998)

• Detainee had BAC of .205
• Fit suicide profile because he drunk and
  committed suicide within 30 minutes of
  confinement
• County not deliberately indifferent to risks of
  suicide
• Court held risk of suicide by intoxicated
  prisoners was not so obvious that failure of
  county to remedy conditions of confinement that
  provided inmates opportunity for suicide was
  deliberate indifference
• Court granted summary judgment for county and
  officers

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Liebe v. Norton, (1998)

• Detention officers were not deliberately
  indifferent to suicide risk
• Officers classified inmate as suicide risk
• Took belt and shoes
• Periodically checked on inmate at intervals of 7
  to 21 minutes
• Classified as suicide risk because he admitted a
  prior suicide attempt, and admitted taking
  clonazepam and valium
• Even though they checked on him periodically,
  failed to turn audio from cell
• Inmate used long-sleeved shirt to hang himself
  from electrical conduit in cell
• Family claimed deliberate indifference because
  county failed to supervise inmate and failed to
  test employees on suicide policies in manual
• Court found ?s not deliberately
  indifferent-policy manual included step-by-step
  duties regarding suicide policy

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Suicides-Failure to Train

• Allegations that supervisors failed to train
  officers on
• Recognition of suicidal tendencies
• Policy issues
• Monitoring procedures
• When and how to summon medical-psych care
• Resuscitation procedures

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Suicides-Failure to Train

• Vine v. County of Ingham, (1995)
• Pyka v. Village of Orland Park, (1995)
• Mathis v. Fairman, (1997)
• Owens v. City of Philadelphia, (1998)

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Use of force policy

• Ensure officers are trained on use of
  "objectively reasonable" level of force
• Direct officers in proper escalation and
  de-escalation of force as necessary
• Training of officers on use of restraints and
• Use of force on special needs arrestees

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Transportation

• When and how should officers transport a
  maximally restrained person
• Number of officers needed for task
• Alternative means of transportation
• Transportation of special needs persons
• Communication with supervisors during decision
  making process and transportation

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Suicide prevention

• Screening
• Suicide "profile"
• Proper observation
• Removal of items used in suicide attempts
• Thorough investigation of any custodial death
• Maintenance of records of incident, statements,
  videotapes, audiotapes of communications,
  physical evidence, etc
• Supervisors and administrators should ensure
  officers are trained on these issues

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