JOLENE WALDRON, as the Personal Representative of the Estate of Anthony R. Ybarra, Jr. a minor, Plaintiff-Appellee, versus GREGORY SPICHER, Deputy, individually, Defendant-Appellant.
No. 18-14536
United States Court of Appeals, Eleventh Circuit
March 25, 2020
D.C. Docket No. 5:16-cv-00658-TJC-PRL. [PUBLISH]. Appeal from the United States District Court for the Middle District of Florida.
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 18-14536
D.C. Docket No. 5:16-cv-00658-TJC-PRL
JOLENE WALDRON, as the Personal Representative of the Estate of Anthony R. Ybarra, Jr. a minor, Plaintiff-Appellee,
versus
GREGORY SPICHER, Deputy, individually, Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Florida
(March 25, 2020)
Before ANDERSON, MARCUS, and EBEL,* Circuit Judges.
Jolene Waldron, the personal representative of her son, the late Anthony Ybarra, Jr., filed the instant case against Gregory Spicher, a Sheriff’s Deputy with the Marion County, Florida, Sheriff’s Office. After her son attempted to commit suicide by hanging himself, Waldron contends that Spicher, the responding officer on the scene, stopped several bystanders from
I. BACKGROUND
While the parties largely agree on the underlying facts, we nonetheless set them out in some detail because they are relevant to our ultimate decision. Taking the facts in the light most favorable to the plaintiff in this summary judgment qualified immunity posture, we assume the following circumstances.
A. Ybarra’s Suicide and the Immediate Response
On November 14, 2014, Anthony Ybarra, Jr., attempted to commit suicide by hanging himself from a tree outside his house with belts and ropes. Though it is unclear how long Ybarra was hanging before he was discovered, it is likely that at least several minutes elapsed before he was ultimately discovered by Waldron and her other children. When Waldron discovered her son, she began screaming and attempted to bring him down. One of her neighbors, Ronald Timson, a former emergency medical technician (“EMT”), heard her screams and rushed over to help. Waldron and Timson had difficulty cutting the ropes and belts that Ybarra had hung himself with, but were eventually able to do so. Timson examined Ybarra and detected a “faint, faint pulse” on Ybarra’s carotid artery and felt that Ybarra “was not cold.” Because of Ybarra’s “nonwhite” skin, Timson was unable to tell if Ybarra was cyanotic1 and saw some faint bruising around his neck. He immediately began performing CPR on Ybarra. As Timson did so, Waldron testified that she saw Ybarra exhale, but Timson did not.
While Timson was performing CPR, Waldron and Christina Timson, Ronald’s wife, repeatedly attempted to call 911 to report the emergency, but the line kept disconnecting. Christina Timson was able to call 911 successfully at 4:00 PM, shortly after Ybarra was discovered, and a rescue unit was dispatched at approximately 4:02 PM. Meanwhile, Waldron called her boyfriend’s mother, Karen VanEs, a nurse, at approximately 4:04 PM, who arrived at the Waldron residence several minutes later.
At the time that VanEs had arrived, Timson had been performing CPR for several minutes. When she arrived, VanEs joined him. She noted that Ybarra’s color was not “dusky” or “kind of grayish,” which would have indicated to her that he was “dead or closе to death.” She did not observe any breathing or any other signs that indicated he was alive. She performed CPR for a short period of time—accounts vary as to whether it was a minute or several minutes—before Sheriff’s Deputy Gregory Spicher arrived.
Upon his arrival, Spicher directed both VanEs and Timson to stop performing
Several minutes later, a fire truck and an ambulance arrived. Three paramedics—later identified as David Warren, Christensen, and Grisales—attempted to attend to Ybarra, but Spicher only allowed Warren to do so to “confirm the patient’s status.” Warren testified that Spicher told him to “not touch the patient very much because this was . . . a crime scene.” Warren noted that Ybarra was “severely cyanotic and unresponsive” and his neck was elongated. He assessed Ybarra with a Glasgow Coma Score of one in eyes, verbal, and motor, which was consistent with a deceased person’s score. Warren hooked up Ybarra to a heart monitor and noted a heart rate of 24 beats per minute, which he testified indicated organized electrical activity in the heart inconsistent with death. Warren called for Spicher to retrieve Lieutenant Christensen, but Spicher was on the phone and did not
hear him, so Warren shouted louder, which finally brought Christiansen over. The two immediately recontinued CPR and began “manual C-spine immobilization,” which was meant to hold Ybarra’s spine in line. Ybarra was then transported to the hospital, where he died а week later.
B. Internal Affairs Investigation
Shortly after the events of November 14, 2014, the Marion County Sheriff’s Office’s Internal Investigations Unit opened an investigation into Spicher’s conduct. The Unit interviewed all of the witnesses—that is, Waldron, her children, the Timsons, VanEs, Warren, and Spicher. The Unit reached the following conclusion:
Deputy Spicher was acting in the role of a law enforcement officer at the time of this incident; he had been trained to administer CPR. His years of advanced medical training and experience should have been a benefit in this instance. CPR training will teach you that you don’t cease CPR once it begins, unless the person administering it is relieved by medical personnel or becomes exhausted. Deputy Spicher made, what he believed at the time, a correct decision when giving the order; however, hе lacked the facts to do so. Deputy Spicher did not know that the civilians administering CPR had medical backgrounds or how long the subject had been hanging before he was cut down. Once someone is deceased you can, during a time frame, possibly bring them back to life.
Deputy Gregory Spicher’s actions at the time of his arrival, in as far as his commands to civilians, were not proper as to his role of a law enforcement officer and the Marion County Sheriff’s Office. Therefore, Violation of operations Directive
1068.04(A) Dereliction of Duty is SUBSTANTIATED.
(emphasis in original).
C. Procedural History
Waldron filed suit against Spicher, alleging that he violated Ybarra’s
Both parties filed motions to exclude the other’s expert witnesses, and Spicher moved for summary judgment based on qualified and sovereign immunity and on Waldron’s demand for punitive damages. The District Court denied the motions to exclude Rouhani and Sperry as expert witnesses, denied Spicher’s motion as to punitive damages, and denied his motion as to qualified and sovereign immunity. Spicher appealed the District Court’s denial of his motion for summary judgment solely on the issue of qualified immunity.
II. ISSUE
The ultimate issue on appeal is whether the district court erred in denying Spicher’s motion for summary judgment. However, there are several subsidiary issues, including:
- Whether Spicher was acting within his discretionary authority; and
- Whether the district court employed the correct legal analysis, and if not, what Waldron must prove to demonstrate a violation of clearly established substantive due process rights.
We decline to address the first issue; we prefer that the district court address it in the first instance. This opinion addresses only the second issue.
III. ANALYSIS
“Qualified immunity protects government officials from liability for civil damages unless they violate a statutory or constitutional right that was clearly established at the time the alleged violation took place.” Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013) (citation omitted). Because qualified immunity is available only if the official is “carry[ing] out their discretionary duties,” see id. (quotation omitted), our inquiry begins by considering whether the official was acting within the scope of his discretionary authority. See Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). “If, interpreting the evidence in the light most favorable to the plaintiff, the court concludes that the defendant was engaged in a discretionary function, then the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.” Id. (citing Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003)) (emphasis in original). Then, the plaintiff must demonstrate that his constitutional rights were violated and that the right at issue was “‘clearly established’ at the time of defendant’s alleged misconduct.” Pearson v.Callahan, 555 U.S. 223, 232 (2009). We review all of these determinations de novo, Nolin v. Isbell, 207 F.3d 1253, 1255 (11th Cir. 2000), and “view all evidence and make any reasonable inferences that might be drawn therefrom in the light most favorable to the non-moving party,” but “only to the extent supportable by the record,” Loftus v. Clark-Moore, 690 F.3d 1200, 1203 (11th Cir. 2012) (quotation omitted). We begin by cоnsidering whether Spicher was acting within his discretionary authority, and then proceed to the core qualified immunity analysis.
A. Discretionary Authority
In most cases, plaintiffs concede that the defendant was acting within his discretionary authority at the time of the alleged constitutional violation. In the proceedings before the district court, Waldron did not argue that Spicher was not acting within his discretionary authority and the district court assumed that she had conceded the point. Perhaps inspired by the district court’s suggestion that “the Court is not so sure” that “Spicher was acting within the scope of his discretionary authority,” Waldron argues for the first time before us that Spicher was not acting within his discretionary authority.
Generally, “[a]rguments raised for the first time on appeal are not properly before this Court.” Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir. 2000). But our “power to entertain an argument raised for the first timе on appeal is not a jurisdictional one; thus we may choose to hear the argument under special
circumstances.” Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1332 (11th Cir. 2004) (citing Dean Witter Reynolds, Inc. v. Fernandez, 741 F.2d 355, 360 (11th Cir. 1984)) (emphasis in original).
We note that the district court declined to address the discretionary authority issue, because neither party raised the issue and because, under the district court’s analysis, it would not have changed the outcome. We decline to address this issue; we prefer that the district court address in the first instance both whether Waldron’s actions in the district court constitute a waiver, and the merits of the issue. Accordingly, the balance of this opinion assumes arguendo—but does not decide—that Spicher was acting within his discretionary authority.
B. Core Qualified Immunity Analysis
As we explained previously, the core qualified immunity analysis consists of two questions: (1) whether the official violated the plaintiff’s constitutional rights, and (2) if so, whether those rights were clearly established. We “may undertake these two inquiries in either order.” Maddox v. Stevens, 727 F.3d 1109, 1120 (11th Cir. 2013) (citing Pearson, 555 U.S. at 236). Because we are assuming that Spicher was acting within the scope of his authority, to prevail, Waldron will have to prove not only that her substantive due process rights were violated (the first prong), but also that the substantive due process rights thus violated were clearly established (the second prong) at the time Spicher acted. Because Waldron can prevail only if
she successfully establishes this second prong, and because if she does establish the second prong she necessarily will have established the first prong, we address in this opinion only whether Waldron can prove that Spicher’s actions violated clearly established substantive due process rights.
This court has identified three different ways that a plaintiff can prove that a particular constitutional right is clеarly established. First, a plaintiff can show that a materially similar case has already been decided. Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005). This category consists of binding precedent tied to particularized facts in a materially similar case. In determining whether a right is clearly established under this prong, only materially similar cases from the United States Supreme Court, this Circuit, and/or the highest court of the relevant state can clearly establish
violates [the] Constitution that prior case law is unnecessary.” Mercado, 407 F.3d at 1159. This third test is a narrow category encompassing those situations where “the official’s conduct lies so very obviously at the very core of what the [relevant constitutional provision] prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding lack of case law.” Loftus, 690 F.3d at 1205 (alteration in original) (quoting Terrell v. Smith, 668 F.3d 1244, 1257 (11th Cir. 2012)).
1. Significance of Hamilton and Lewis for this case
We begin our analysis with a discussion of the very similar case of Hamilton by and through Hamilton v. Cannon, 80 F.3d 1525 (11th Cir. 1996). There, Hamilton, the plaintiff’s daughter, was thrown into a swimming pool but did not know how to swim and ultimately died. Id. at 1527. The lifeguard on duty “had received no formal lifeguard training nor аny instruction with respect to drownings or any other potential emergencies at the pool.” Id. at 1527–28. All he “knew to do was to remove [Hamilton] from the pool and place her on the edge of it.” Id. at 1528. Following his removal of Hamilton from the pool, a bystander trained in CPR began administering CPR in an attempt to revive Hamilton. Id. “After [the bystander] initiated CPR, Hamilton appeared to begin shallow breathing and to revive slightly.” Id. Some testimony indicated that “Hamilton held her head up, began to cough and moved her arm,” and the bystander “felt a pulse and saw
Hamilton trying to respond by moving her eyes.” Id. At this point, a sheriff’s deputy arrived at the scene and “ordered everyone to clear the area around Hamilton,” including the bystander administering CPR. Despite the bystander’s objections, the officer specifically ordered her away from Hamilton. Id. The deputy “then examined Hamilton’s condition, but did not himself undertake CPR efforts or take any other medical action on her behalf, apparently believing that Macon County’s emergency medical technicians would arrive immediately after him.” Id. However, because the EMTs were confused about the location, their arrival was delayed by several minutes, during which time “no one provided medical attention to Hamilton.” Id. The bystander ran to her nearby home to retrieve her CPR certification card and returned; and during that five minutes, again, no one provided any medical care to Hamilton. Id. The bystander was allowed to resume CPR and the EMTs arrived shortly thereafter, but “Hamilton had already passed the point at which medical assistance could be of benefit,” and she was declared dead shortly thereafter. Id. The district court denied the deputy’s invocation of qualified immunity, and we reversed. We concluded that the cases Hamilton relied on to clearly establish a substantive due process violation were either dicta, or insufficiently similar such that the law had not been “developed in such a concrete and factually defined context to make it obvious to all
(internal quotations omitted). We held: “It would take much creativity and imagination to glean from the factually distinguishable cases upon which the plaintiffs rely a clearly established rule of law that an unsuccessful, negligent, or reckless rescue attempt, or interference with a bystander’s rescue attempt, amounts to a constitutional violation.” Id. at 1532.
In Hamilton, we applied the then-prevailing substantive due process analysis which provided that, ordinarily, government officials “are under no duty to provide rescue.” Id. at 1529. This general substantive due process law was subject to two exceptions in our Circuit: (1) the “special relationship” doctrine, and (2) the “special danger” doctrine. With respect to the first, we explained in Bradbury v. Pinellas County, 789 F.2d 1513, 1516 n.2 (11th Cir. 1986), “there are times when the Constitution requires local governmental units to provide basic protective services to individuals with whom the government has created a special relationship,” usually through arrest or other forms of custody. And as to the second, “a plaintiff may show a duty on the state’s part . . . by establishing that the plaintiff, as opposed to the general public, faced a sрecial danger.” Cornelius v. Highland Lake, 880 F.2d 348, 354 (11th Cir. 1989), abrogated as recognized in White v. Lemacks, 183 F.3d 1253, 1257–58 (11th Cir. 1999). We subsequently explained that the substantive due process analysis which the Hamilton opinion employed was “superseded by the standard employed by the Supreme Court in Collins [v. City of Harker Heights].”
White, 183 F.3d at 1257–59. “Thus, the conduct by a government actor will rise to the level of a substantive due process violation only if the act can be characterized as arbitrary or conscience shocking in a constitutional sense.” Waddell v. Hemerson, 329 F.3d 1300, 1304 (11th Cir. 2003) (citing Collins, 503 U.S. 115, 128 (1992); White, 183 F.3d at 1257–59).
The Supreme Court in County of Sacramento v. Lewis described the concept of conscience shocking in the constitutional sense. 523 U.S. 833 (1998). With respect to executive action, “only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” Id. at 846 (internal quotation omitted). The “Due Process Clause was intended to prevent government officials from abusing [their] power, or employing it as an instrument of oppression.” Id. (internal quotations omitted) (alteration in original). Lewis noted that “the measure of what is conscience shocking is no calibrated yard stick[.]” Id. at 847. Context and the circumstances are significant, and the level of culpability required can vary with the context. Id. at 849–54. Thus, Lewis noted that the Court had held that “deliberately indifferent conduct . . . [is] enough to satisfy the fault requirement for due process claims based on the medical needs of someone jailed while awaiting trial[.]” Id. at 850. But, the Court noted: “Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of
circumstances before any abuse of power is condemned as conscience-shocking.” Id. at 850. The Court contrasted the context of a pretrial detainee in need of medical care to that of a prison riot or the high-speed chase at issue in Lewis. Id. at 849–53. In the pretrial detainee context, “actual deliberation
As is apparent from the above discussion of Lewis, context is significant. And the above description of the facts in Hamilton reveals that the facts of the instant case are very similar. The general context is identical: both cases involve a law
enforcement officer called to the scene of an attempted suicide (in the instant case) or an accidental drowning (in Hamilton). In both cases, bystanders were performing lifesaving CPR when the officer arrived. In both cases, the officer ordered everyone away from the victim, thus terminating ongoing CPR efforts. In both cases, the bystanders objected, but the officer persisted in his order such that CPR terminated. In neither case did the officer himself undertake CPR efforts. In both cases, no CPR or other lifesaving efforts were undertaken (for a few minutes until paramedics arrived in our case and for five minutes in Hamilton, 80 F.3d at 1528). In both cases, the victim died.
As explained in Lewis, the context in which the officer’s action occurs is important in determining the level of culpability required for a plaintiff to state a viable substantive due process violation. Our Hamilton decision holds that, in the context there, a “reckless rescue attempt, or interference with a bystander’s rescue attempt,” 80 F.3d at 1532, does not rise to the level of a clearly established violation of substantive due process. Deputy Spicher in our case argues that the context in this case is materiаlly similar to that in Hamilton, and therefore the plaintiff in our case must prove more than reckless interference with the bystanders’ rescue attempt to demonstrate a clearly established violation of the Constitution.
Waldron responds—and the district court apparently agreed—that Hamilton analyzed the substantive due process challenge there employing the now-superseded
“special relationship” or “special danger” analysis, and therefore that Hamilton could provide little or no guidance to Spicher as to what the Constitution required—i.e., little or no indication of the content of a clearly established violation of substantive due process. Contrary to Waldron’s position, we believe that our decision in Hamilton is a relevant part of the “legal landscape” that would have informed Spicher with respect to the contours of the constitutional right. Binding case law in this Circuit holds that the “relevant legal landscape”—including even cases from outside our Circuit and unpublished cases—are informative in a court’s determination of whether a particular constitutional right is clearly established. Corbitt v. Vickers, 929 F.3d 1304, 1319 n.14 (11th Cir. 2019); Denno v. Sch. Bd. of Volusia Cty., Fla., 218 F.3d 1267, 1272–75 (11th Cir. 2000) (identifying the relevant legal landscape as including out-of-circuit and district court decisions and declining to “hold government officials to a higher level of knowledge and understanding of the legal landscape than the knowledge and understanding by judges”). Thus, merely because a later Supreme Court case changed the legal analysis, we cannot expect every reasonable officer in Spicher’s shoes to disregard the fact that the materially similar facts in Hamilton resulted in а holding that it takes more than a “reckless . . . interference with a bystander’s rescue attempt” to constitute a clearly established violation of substantive due process.
Moreover, even if Spicher had been aware that the Supreme Court changed the appropriate analysis after our Hamilton decision, we do not believe that would undermine the significance of Hamilton for this case. The new shock-the-conscience analysis is clearly at least as favorable to defendant governmental officers—and unfavorable to plaintiffs in suits like Waldron’s—as had been the previous analysis; and very probably the new standard is more so. Thus, there being fair notice to reasonable officers in Spicher’s shoes under the old standard that it takes more than reckless interferencе with a rescue attempt to violate clearly established substantive due process rights, we believe that there is at least as much fair notice to Spicher under the new standard.
For the foregoing reasons, we believe that in this Circuit, Spicher’s actions cannot be deemed to violate clearly established substantive due process rights, unless the jury finds that Spicher acted with a level of culpability more than reckless interference with bystanders’ attempted rescue efforts. This leads us to disagree with the rationale of the district court, which based its qualified immunity holding on deliberate indifference as the foundation level of culpability. The district court recognized that “something more” was required. The “something more” on which the district court relied was the following: the gravity of Ybarra’s medical need (it was clear he would die without continued CPR); the fact that Spicher required cessation of CPR without assessment of Ybarra’s condition and without any
competing emergency or law enforcement needs; the fact that it was obvious to any law enforcement officer in that situation that ongoing CPR should not be terminated unless relieved by medical personnel or required by exhaustion; the fact that Spicher had second chances when Mrs. VanEs protested that she felt a pulse; and the egregiousness of the circumstances. Our problem with the district court’s rationale is that the tragic circumstances that the district court assumed—and that we must assume in this summary judgment posture—are materially similar to those in Hamilton.
In other words, the “something more” that the district court here relied on is materially similar to the circumstances in Hamilton, which this court held were insufficient to rise to the level of a clearly established substantive due process violation. Accordingly, we conclude that in this Circuit, Spicher’s actions cannot be held to violate clearly established substantive due process rights, unless the jury finds that Spicher acted with a level of culpability more than reckless interference with bystanders’ rescue efforts.
“Deliberate indifference” and “recklessness” are frequently used together to describe similar behavior, likely because of their similar definitions.3 There is not
indifference” was “equivalent to . . . reckless disregard for life,” 523 U.S. at 854, which paints a legal landscape that squarely forecloses the argument that there is any significant difference between the terms.
Accordingly, because the circumstances of the instant case are materially similar to the circumstances of Hamilton, we cannot conclude that Spicher’s reckless or deliberately indifferent interference with bystanders’ rescue attempts is sufficient to constitute a violation of Waldron’s clearly established substantive due process rights. In other words, with Hamilton as part of the relevant legal landscape guiding Spicher, we cannоt conclude that he had fair notice or fair warning that reckless or deliberately indifferent actions on his part in
In support of our position, we note that the Supreme Court in Lewis held that allegations of recklessness, conscious disregard, and deliberate indifference were insufficient levels of culpability to state a substantive due process claim in the non-custodial context of a high-speed chase. 523 U.S. at 852–55. No case in the Supreme Court, or in this Circuit, or in the Florida Supreme Court has held that recklessness or deliberate indifference is a sufficient level of culpability to state a
claim of violation of substantive due process rights in a non-custodial context.5 See Nix v. Franklin Cty. Sch. Dist., 311 F.3d 1373, 1377 (11th Cir. 2002) (“This court has been explicit in stating that deliberate indifference is insufficient to constitute a due-process violation in a non-custodial setting[.]”) (internal quotation omitted); see also Davis v. Carter, 555 F.3d 979, 983 (11th Cir. 2009) (“[D]eliberate indifference is insufficient to constitute a due-process violation in a non-custodial setting.”) (quoting Nix, 311 F.3d at 1377); Upsher v. Grosse Pointe Sch. Sys., 285 F.3d 448, 453 (6th Cir. 2002) (“[T]o succeed on a § 1983 claim in a non-custodial setting, a plaintiff must prove either intentional injury or ‘arbitrary conduct intentionally designed to punish someone[.]’”) (quoting Lewellen v. Metropolitan Gov’t, 34 F.3d 345, 351 (6th Cir. 1994)); Payne v. Churchich, 161 F.3d 1030, 1040 (7th Cir. 1998) (differentiating “deliberate indifference” as the standard “in the custodial situation of a prison” and “a much higher standard of fault than deliberate indifference” in a non-custodial situation like “in a high-speed chase”) (quoting Lewis, 523 U.S. at 852–54).
Having decided that—on the facts we necessarily assume—Spicher’s actions, if merely reckless or deliberately indifferent, would not rise to the level of culpability necessary to state a violation of clearly established substantivе due process rights, we nevertheless hold that Spicher’s actions would rise to that necessary level if the jury should find that Spicher acted for the purpose of causing harm to Ybarra. We derive from the Supreme Court’s decision in Lewis the contours of actions by Spicher that clearly would rise to the level of violating clearly established substantive due process rights. We believe that it is a matter of obvious clarity, derived from principles set out in Lewis, that Waldron would have stated a violation of clearly established substantive due process rights if the jury finds that he intended to cause harm to Ybarra, which harm in the context of the facts of this case obviously would take the form of death or serious brain injury.6 From Lewis, we derive the principle that “only at the [high] end[] of the tort law spectrum of culpability” do offiсial acts “point . . . clearly toward” the “constitutional
way to freedom” against “the high-speed threat to all those within stopping range,” id. at 853—the Court in Lewis identified that high end of the culpability spectrum as an intent to cause harm. Id. at 854. (“[A] purpose to cause harm . . . ought to be needed for due process liability in a pursuit case.”).
If the circumstances we assume in this summary judgment posture are found by the jury, and if the jury also finds that Spicher intended to cause harm to Ybarra in the form of death or serious brain injury, then we hold that it is a matter of obvious clarity, derived from the above principles, that Wаldron would have proved a violation of clearly established substantive due process rights.7
Little explanation is needed to show that it is a matter of obvious clarity from Lewis’s principles that proof of intent on the part of Spicher to cause harm to Ybarra, under the circumstances assumed here, would violate clearly established substantive
due process rights. With respect to the certainty and seriousness of harm, the circumstances here point more clearly to the certainty of death or serious brain injury than the circumstances in Lewis pointed to the certainty or seriousness of harm. With respect to substantial countervailing governmental interests, Lewis, 523 U.S. at 851, the two cases involved comparably weak governmental interests, but, if anything, the countervailing governmental interests here are even weaker. In Lewis, the Court cited the need to stop a motorcycling suspect who was speeding and who had disobeyed a uniform officer’s order to stop. In our case, Spicher asserted a need to clear a crime scene, notwithstanding that the 911 call had indicated an attempted suicide was involved, and, upon Spicher’s arrival, the ongoing CPR efforts did not suggest a crime scene. The district court in this case perceived no competing emergency or law enforcement concerns. Although Spicher asserts that he reasonably believed Ybarra was already dead and beyond any possible help and although that would of course be evidence of an absence of intent to harm Ybarra, that remains a question for the jury. The necessity for split-second decision-making is comparable in the two cases. With respect
oppression” that is at the core of what substantive due process is intended to protect against. Lewis, 523 U.S. at 846. Accordingly, because the Court in Lewis concluded there that a purpose to cause harm would violate substantive due process, we believe it is a matter of obvious clarity that, if the jury finds that Spicher intended to cause harm to Ybarra in the form of death or serious brain injury, and finds the other circumstances we assume in this summary judgment posture, then we hold that Waldron would have proved a violation of clearly established substantive due process rights.
2. Having Rejected the District Court’s Rationale, Remand is Appropriate
In this opinion, we have held that—in this Circuit where Hamilton is part of the relevant legal landscape—Waldron cannot demonstrate that Spicher violated clearly established substantive due process rights without proving more than that Spicher acted with deliberate indifference or recklessness. But we have also held that, if the jury should find that Spicher acted for the purpose of causing harm to Ybarra, Waldron would have proved a violation of clearly established substantive due process rights. Because the district court analyzed this case under the erroneous аssumption that a deliberate indifference level of culpability was sufficient under these circumstances, the district court of course has not evaluated whether a reasonable jury could find such a purpose of causing harm on this summary judgment record, and/or whether the parties should be permitted to further develop
the summary judgment record in light of the standard which we announce today. We believe it is appropriate to remand this case to the district court to permit it to reconsider this case under the standard we announce in this opinion.
IV. CONCLUSION
For the foregoing reasons, we vacate the judgment of the district court, and remand for further proceedings not inconsistent with this opinion.
VACATED AND REMANDED.