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By Bill Altreuter

Earlier this year I was approached by a prospective client who wanted to make a wrongful death claim. The facts of the case presented some tricky questions. The decedent had shared custody of a minor child-- around eight years old or so. The child had called 911 and reported that the decedent would not wake up. The police responded, and found the decedent in what appeared to be an intoxicated condition. While they were in the decedent's home they found a quantity of crack. They took the decedent into custody, and brought the child to the home of the other parent. They brought the decedent to the holding center. Over the course of several hours there the decedent was observed vomiting, and lying on the floor. At some point the decedent went into a seizure and it was decided that transport to the emergency room was called for. In the ambulance the decedent went into arrest and died.

There were a number of atmospheric details that I am obviously eliding over here-- the whole thing was a sad mess, and the decedent's survivors deserve anonymity here. The core legal question from my standpoint was basically whether we would be able to prove causation; and we needed to consider whether the prospective damages were worth prolonging the grief of the family over several years. In the end they decided that they did not want to go through with it, and I think they made the right call. I was reminded of this when reading about McKenna v. Edgell, a case out of the Sixth Circuit in which police officers who responded to an emergency call were held civilly liable for the violation of the plaintiff's Fourth Amendment rights under somewhat similar circumstances. Interestingly,McKenna turned on the question of whether the police were acting in a law enforcement capacity, or in a medical-response capacity. "If the officers were acting in a medical-response capacity... they are entitled to qualified immunity. If the officers were acting in a law enforcement capacity, however, then the officers are liable because it is clearly established that (1) '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' and (2) that a person has a right 'to be free from unreasonable searches, including a warrantless search in the absence of exigent circumstances or some other warrant exception.'" Orin Kerr thinks the Sixth Circuit screwed up, basically because the rule it enunciates is muddled, and I think he may be correct. It seems to me that the situation may have been pretty fluid, and that the sort of binary, either/or test that the court found applicable would not have provided the police with any way to know if they were acting in good faith. That said, it also seems to me that there may have been atmospherics that we don't know about. I know that in my case there were-- in the background of what I was dealing with there was, for example, the disgruntled other parent, who may have prompted the child to call 911 as part of an underlying custody issue. How might that have impacted on a court's analysis? The way the facts were spread out in the official reporting by the police made it appear that they were responding to a possible medical emergency-- or a potentially dangerous situation for the child. I don't doubt, however, that this reporting was shaded a bit to address the issue of whether the child had the authority to invite the police into the premises. Some discovery might have cast a bit of light on this question.

I don't know that I'd have taken the case if the decedent had survived and come to me with a possible Constitutional tort claim. As I researched the issues in order to counsel the survivors I considered the Fourth Amendment claim as an element of damages, but I didn't think that it was much of a sweetener. At least I got that right: although the jury in McKenna awarded $6,000 for medical expenses and $275,000 for pain and suffering the district court reduced the pain and suffering award to $10,000 bucks. That's about where I figured the value might have been, if I got every break, added onto the value of the pecuniary loss sustained by the child, and something for the actual pain and suffering endured before death.

Full post as published by Outside Counsel on August 20, 2010 (boomark / email).