*1 affirm the dis- Accordingly, Proceed interest. we Jury In re Grand own conduct. (4th judgment. trict court’s Cir. ings, 727 F.2d 1355-56 1984). par occurs when Implied waiver AFFIRMED voluntarily has ty claiming privilege giv on a confidential information
disclosed subject party matter to a not covered en by privilege. Sweeney, 29 F.3d at However, unilaterally not attorney may an Joseph PARRISH, Rep R. Personal enjoys. that his privilege waive the client Tony LEE, resentative of Marcel protect product to nor ability work “[T]he deceased, Plaintiff-Appellee, attor mally to clients and extends both v. client, neys, attorney or the ex CLEVELAND, conduct, can forfeit Paul Defendant- pressly byor waive or Appellant, Doe, it, as to re himself.” added) (internal (emphasis F.2d at 1079 omitted). citation Virginia; Frank Commonwealth Newman; Baldassari; Kevin Kevin Roy’s Roy unilateral disclosure of Ponsart; Thompson; Paul Doo John nothing us whether Report thus tells about Wancik; ley; Garlow; Kevin Brian right has its to withhold USAID waived Fairfax; County of John Thomas Roy Roy attorney as an could Report. Manger, capacity in his as official right USAID’s without USAID’s waive County Fairfax Police Chief of the properly consent. Here district court Department; Barry, in his Stan G. held that the fact had not author- USAID capacity official as the Sheriff Roy report ized to meant that disclose County, Virginia; Does Fairfax John Exemption had not 5 of USAID waived 1-20; 1-20, Does Jane Defendants. fact, Roy’s FOIA. In contract with CDM expressly Roy was to send the stated Parrish, Joseph Represen R. Personal report only to and USAID. NOPWASD Tony Lee, tative of Marcel de point any to Hanson fails conduct ceased, Plaintiff-Appellee, USAID, NOPWASD, sug- or CDM that their gested that intended waive Thompson; Dooley, Paul John attorney product exemption. work Defendants-Appellants,
rv. Cleveland; Paul Commonwealth Of Vir right government The has same Newman; ginia; Frank Kevin Baldas legal anticipation undisclosed advice sari; Ponsart; Garlow; Kevin Kevin litigation private party. as And there Wancik; Fairfax; County Brian gov- nothing prevents FOIA that Manger, John Thomas his official drawing counsel ernment from confidential capacity as Chief the Fairfax Coun Allowing disclo- private Barry, sector. ty Department; Police Stan G. ability agency’s an impair sure here would capacity his official the Sheriff prepare effectively litigation County, Virginia; of Fairfax John thereby 1-20; 1-20, private parties and thwart its abil- Does Jane Does Defen ity discharge public its functions in the dants. *2 Represen Parrish,
Joseph Personal R. Lee, Tony de Marcel tative Plaintiff-Appellee, ceased, Wancik, Garlow; Brian Kevin Defendants-Appellants, Cleveland; of Vir Commonwealth Paul Newman; Kevin Baldas ginia; Frank Thompson; Ponsart; sari; Paul Kevin County Fairfax; Dooley; John Manger, in his official Thomas John the Fairfax Coun capacity as Chief of Barry, Department; ty Stan G. Police capacity Sheriff in his official County, Virginia; John Fairfax 1-20, 1-20; Defen Does Does Jane dants. 02-2308.
Nos. 02-2306 to of Appeals, Court United States Fourth Circuit. Argued: Oct. 18, 2004. Decided: June *3 Ross,
ARGUED: Robert Marvel Assis- County Attorney, County tant Office Fairfax, Attorney, Virginia; John J. Brandt, Brandt, Jennings, Roberts & Snee, P.L.L.C., Church, Virginia, Falls for Grenier, Appellants. Christopher Peter Grenier, L.L.P., D.C., Bode & Washington, Appellee. for BRIEF: ON David P. Bobzien, County Attorney, Peter D. An- dreoli, Jr., Deputy County Attorney, Office County Fairfax, Attorney, Virginia; Parrish, Brandt, James R. Jennings, Rob- Snee, P.L.L.C., Church, Virgi- erts & Falls nia; Fudala, Surovell, Markle, David J. Isaacs, P.L.C., Fairfax, Levy, Davis & Vir- ginia, for Appellants. Jay Singer, Saul Grenier, L.L.P., D.C., Washington, Bode & Appellee. for LUTTIG, WILLIAMS, Before KING, Judges. Circuit Reversed and remanded with by published instructions opinion. Judge separate WILLIAMS wrote a opinion and judgment announced the at the court. Judge opinion KING wrote an concurring judgment. LUTTIG wrote a dissenting opinion.
OPINION
WILLIAMS, Judge: Circuit
Early 22, 2001, evening May Fairfax County police officers arrested Tony suspicion Marcel Lee on of being public. drunk in processing After Lee at a placing substation and a “spit mask” over head, placed the officers the hand- cuffed Lee in the police back of a van to center, transport him to an adult detention shirtless, intoxicated, appeared for intox- care was available medical where route, mouth, drooling En Lee vomited from his and had several icated detainees. revealed the autopsy body. An later died. cuts abrasions across his Cleve- gastric aspiration to be cause of death suspicion land Lee under arrest on Lee’s asphyxia, with positional content him in being public, drunk handcuffed being alcohol content blood percent 0.35 practice, placed accordance standard Joseph R. contributing Appellee cause. cruiser, him back of his and drove Parrish, representative acting personal him to the Satellite Intake Mount Vernon Lee, indi- brought against suit the five for (the station) Facility police processing. handled Lee while he vidual officers who along way Lee vomited several times (the “officers” or “individu- custody inwas Upon station. his arrival *4 defendants”), raising variety a of state al station, police Cleveland was met in the claims, including claims that and federal sally port by Thompson area Paul Officer Lee’s Four- of the officers violated each Brian Deputy and Sheriffs Wancik and rights in Amendment Due Process teenth Garlow, all of are co-defen- Kevin whom a deliberately indifferent to that each was in ar- Thompson dants this case. When harm to Lee.1 The physical risk of serious scene, lying prone rived at the Lee in summary judgment to court denied district cruiser, of the in the back with his feet the officers, summarily rejecting their as- the floorboard area behind the driver’s seat immunity. The offi- qualified of sertions and his head on the seat the back behind immuni- qualified the denial of appeal cers passenger seat. On the floorboard behind ty, and we reverse. and beneath head passenger the seat Lee’s quantity liquid appeared was a of
I. and be a combination of vomit mucous. on his Lee also had some this substance A. effort, Cleveland, After some shoulder. most favorable the Viewed Thompson, and Garlow were able Wancik Bass, 525, 106 plaintiff, v. F.3d Winfield seat of get upright Lee to sit the back (4th Cir.1997) (en banc), the relevant 535 pavement feet on the the cruiser with his evening of facts are as follows. On the point, the At this the outside cruiser. 2001, Paul May Officer Cleveland large a that Lee had officers observed County Department, Police the Fairfax his mouth and quantity of fluid inside below, responded to one of the defendants him to it out. Lee refused to do spit asked larceny at a convenience store. reported a rolled the contents around so and taking description alleged a After L. Doo- Lieutenant John mouth. Second the convenience store perpetrators from case, a in this over- ley, also defendant attendant, searched the area Cleveland exchange and recommended heard this man, a later identi- nearby and discovered large garbage aget that one of the officers Lee, adjacent area fied as a wooded spat into spit for Lee to in. When Lee can descrip- matched one of the the store who can, noticed garbage Deputy the Wancik provided by the attendant. Lee was tions argument cross-appeal prior to oral against ish’s 1. Parrish also raised claims Fairfax chief, jurisdiction in accordance with our County, county police and the coun lack of Waters, holding Taylor 81 F.3d ty (collectively, "municipal defen sheriff 1996). (4th Accordingly, dants”). we do not dis granted'summary Cir. The district court defendants, municipal against the claims judgment municipal which cuss further cross-appealed. defendants. We dismissed Parr Parrish Wancik, expectorated substance Lee Like the other officers had nei- (J.A. 684-85.) any ther formal specks.” training at on the use of the contained “red TranZport any Hood or type spit other attempted spit had not Although Lee mask, any nor experience direct in the use anyone, drooling heavily at Cleveland, spit Dooley, masks. was intoxicated. Given intoxicated agreed Garlow nonetheless with Wancik unpredictably to behave individuals tend that the use of the mask was warranted knowing officers would be under the circumstances. Wancik Lee, that, handling decided Wancik based the mask over Lee’s head while Lee was seen, specks “spit on the red he had cruiser, seated the backseat of ap- used on Lee to prevent mask” should be plying mask so that Lee’s nose spread any pathogens bloodborne filtering was not covered fabric.4 carrying. that Lee re- Wancik Wancik, According to loosely the mask fit “TranZport Hood”2 spit trieved mask neck, around Lee’s so that if liquid cabinet, from it filing removed from its were to flow into the Lee’s sally returned to packaging, port mouth, “easily” would flow out of the area the other officers where were attend- (J.A. 439.) bottom. During forty- ing experience to Lee.3 had no Wancik five minutes to one hour from the time *5 TranZport specifically with the Hood and that Wancik the mask Lee’s over previously any type spit never had used head until the time left in police Lee on a detainee. van, Lee was conscious and able to com- returning cruiser, Upon Cleveland’s During period, municate. this time the other if they Wancik asked did not vomit or indicate that he needed to vomit,5 thought spit that the mask should although be used. he did spit into the mask TranZport specifically designed packaging. 2. Hood is The Those instructions state to be used on detainees when a risk of offi- TranZport Hood should not be used on an exposure present. cers' to infectious disease is vomiting: individual who is "DO NOT USE mask, exemplar provided part The as of the anyone vomiting, having difficulty that is joint appendix, shaped bag a like or hood breathing, bleeding profusely or is from the goes entirely and over the (J.A. detainee's head and vol.V.) mouth or nose area." top- neck and consists of three sections. The Throughout opinion, his the dissent states portion most of the mask is made of fine spit that the mask fit over Lee's "mouth and nylon netting open see-through that is See, e.g., post (emphasis nose." at 314 add- top and covers of the detainee’s head ed). Although technically an accurate state- portion to beneath the nose. The middle entirety ment—the mask in its fit over mask, Lee's beginning sepa- below the nose and description head—this of the mask’s fit should top portion by rated from the a thin elastic misimpression not create the that the wide, bacteria one-quarter band that is less than inch nose, filtering medical fabric fit over Lee's bacteria-filtering is made of a breathable which it did not. very loosely medical fabric that covers the detainee’s mouth and chin area. The medical Throughout opinion, the dissent calls form-fitting, fabric is not but rather acts as a 313, 314-15, "vomiting Lee a at man.” Post pouch around the wearer's head. Beneath suggests 324. This characterization that Lee bacteria-filtering medical fabric is the bot- vomiting repeatedly continuously section, tom-most a four-inch sleeve made of throughout explained his detention. As gauzy lightweight elasticized material that above, text Lee did not vomit from the time snugly, although tightly, fits around the station, when, upon he was unloaded at the easily detainee's neck and is stretchable or officers, request expectorated he expandable. containing specks, fluid the red to some un- 3. Wancik did not read the directions that time on known the ride to the adult detention the manufacturer included in the mask's center. (J.A. 1472), and “sleepy,” at had become any fluid No one observed times. several deputy “agitated” with a sheriffs who was of the mask. the bottom flow out of (J.A. examination, assisting Earl with mask over placed the After Wancik 1470). during her exami- point At some head, Thompson es- Lee’s Cleveland nation, the officers about EMT Earl asked Shortly there- into the station. corted Lee specifically the mask and in- the use of after, and had Thompson left the station might happen what should quired about Lee. Inside the further contact with no the mask over his head. Lee vomit with station, conducted a records Cleveland (in of the officers all likelihood Wan- One (which that Lee revealed check on Lee cik, Earl later could not although EMT being twenty-one times been arrested one)6 explained that the vomit recall which 2001) public between 1987 drunk of the mask. would flow out the bottom charging an arrest warrant and obtained in the record that There is no evidence while the being public, drunk Lee with Earl, pres- then person EMT or other During this Lee. other officers monitored ent, questioned this assessment of officers noticed small period, time fit or cautioned the officers about mask’s forehead and decided to on Lee’s abrasion associated with the any risk to Lee County Fire and Rescue Fairfax call the mask. injury to assess this as well Department EMTs had examined Lee and Kathleen After the of intoxication. EMT Lee’s level warrant, Carson, had obtained the Cleveland Firefighter Roosevelt Earl and that, although he was emergency officers determined were trained both whom conscious, (EMTs), Lee was too intoxicated to be responded medical technicians station, and decided that held at the in the station. EMT and examined Lee Lee to the transport should through the net Cleveland Earl saw the abrasion *6 medi- mask, and, center where better the offi- adult detention given of the portion it. available should Lee need that Lee cal care was possibility cers’ concern about that, in accordance with Dooley to conduct directed EMT Earl decided might spit, procedure,” and Cleve- removing “accepted practice of Lee without the examination special- that had been police land use a van not hinder EMT the mask. The mask did (J.A. transport prisoners.7 evaluation, ly modified and she concluded Earl’s 1332.) front seat of the van was at The injury require did not treat- Lee’s head by metal the back area a separated Earl told that Lee was ment. EMT was in the middle. a small window intoxicated, divider with and she herself noticed into a separated The back of the van was person with a his demeanor was consistent by an- right a chamber chamber and appeared left who was intoxicated —he van, seats, Dooley back of the light whereas in the the facts in the most 6. Because we view Parrish, interpret figured, this evi- Lee would have we favorable and the other that, evening, indicate on that dence to be at less out and would more room to stretch the mask's expressed contrast, this view about Wancik Lieuten- injuring himself. In risk of fit. transporting in- stated that ant Brenda Akre police a van "was the individuals in toxicated conflicting in the rec- are statements There procedure because accepted established and transporting regarding Lee ord the motive up wagon to clean should is much easier police police instead of a cruiser. van (LA. during transport.” at prisoner vomit that, Dooley testified in the backseat Officer 1332.) this evidence is material To the extent cruiser, up- seated Lee would not remain conflicts, most we view it in right might bang head on the and thus his to Parrish. favorable plexiglass the front and back divider between during at the so that he would remain on his side divider was solid other metal top. mesh at the The open not transport. bottom The officers did remove sixty-seven long was inches right and, chamber accordance with stan- thirty-four inches wide. approximately hands police practice, dard left Lee’s high occupied bench four- A thirteen-inch No cuffed behind his back. one rode with chamber, inches of the width teen inLee the rear of the van. space approximately floor leaving a thus Cleveland then drove to the adult deten- right The chamber twenty inches wide. center, trip approximately tion that took narrower than the left and slightly
was 30 minutes. Because the van’s intercom van not visible to driver working, ability was not Cleveland’s The van had an through the window. impaired. hear Lee was but, as Cleveland discovered intercom van, sys- checking the the intercom while arrived at the adult When Cleveland working. not tem was attempted detention center and to rouse Lee, A respond. Lee did not sheriff’s Cleveland, position, van was in Once the deputy assisting who was Cleveland then Dooley, and Garlow carried Lee Wancik called for medical assistance. Cleveland They accompanied van. were out to the remained with Lee and continued to at- deciding place EMT Earl. In how to tempt to rouse him until the medic van, arrived. a number of factors con- First, The medic removed Lee’s mask and officers. the officers de- noted cerned the placed termined that Lee should not be on that it contained vomit. The medic at- he the bench because of the risk would roll tempted CPR but was unsuccessful. Lee Next, injure Dooley off of it and himself. transported was then Fairfax Inova expressed possibility concern about the of Hospital, pronounced he dead where positional asphyxiation, which can occur p.m. subsequent autopsy at 11:06 A re- person placed when an intoxicated on his “aspiration vealed the cause of death to be stomach with his hands restrained behind positional asphyxia” with a contribut- back, that Lee and determined should ing being cause “ethanol intoxication.” on his stomach. Most im- (J.A. 280.) Lee’s blood alcohol content Dooley Earl portantly, and EMT ex- percent. was 0.35 pressed concern that Lee vomit
while the van and thus determined that B. he should not be on his back either. Parrish, acting personal repre- as Lee’s Dooley accordingly directed that Lee be sentative, against filed suit a number of placed on his side on the floor of the van capac- individual officers in their individual airway open. so that his would remain ities, above,8 including the five mentioned officers, Earl, presence The in the of EMT defendants, municipal alleg- as well as the Dooley’s instruction, complied placing ing of federal van, violations constitutional law on Lee on his left side the floor of the 24, 2002, April and state tort law. On passenger the narrower side of the partition. officers then officers removed the action to the United The tilted Lee’s airway head so that his would remain free States District Court for the Eastern Dis- 5, 2002, positioned legs were he to vomit and Lee’s trict of Virginia, August and on Cleveland, ruling to the district court’s Prior on the officers mentioned Wan- above— cik, Garlow, summary judgment Thompson, Dooley motions for that are at the—are appeal, voluntarily remaining issue in this Parrish dis- defendants in the action who against being capacities. missed three claims officers. The five are sued in their individual
301
immunity
liability,
effectively
“it is
complaint
amended
a second
filed
Parrish
erroneously permitted
if a case is
(the
Parrish’s
lost
remains
complaint), which
Forsyth,
Mitchell v.
472
ap- go
to this
to trial.”
U.S.
Relevant
pleading.
operative
526,
2806,
511,
also asserted wrongful law for under state defendants A. 7). (Counts 6 and death To determine whether the individu individual defen- discovery, After each qualified here are entitled to al defendants summary judgment a motion for dant filed two-step inqui make a immunity, we must immuni- qualified defense of based on the Katz, ry proper sequence.” “in Saucier or opinion issued without ty. In an order 194, 200, 121 150 S.Ct. 533 U.S. record, on the the district any explanation (2001). a threshold mat L.Ed.2d 272 As re- defendants’ court denied the individual whether, ter, “[t]aken we must determine immunity as to Counts quests qualified party most favorable defendants through 4. The individual alleged ... asserting injury, the facts timely appealed. officer’s conduct violated show [that] 201, 121 right.” Id. at S.Ct. constitutional II. viewed, facts, do not estab 2151. If the so (West right, the of a constitutional § lish a violation Under 28 U.S.C.A. ends, plaintiff pre cannot inquiry and the 1993), to review final jurisdiction have we such a do establish Id. If the facts the collat vail. district courts. Under orders of violation, is to determine step the next doctrine, order a district court eral order “clearly violated was right final, terminate whether if it does “even alleged time of the court, long as established” district so proceedings determining whether the Id. In offense. conclusively disputed determines *8 established,” “clearly we right violated was com important an issue question, resolves specific “in of the right define from the merits pletely separate case, general a not as broad context of action, effectively unreview and would be was not right Id. “If the judgment.” proposition!.]” a final appeal able ‘specific context ‘clearly County, established’ George’s Gray Hopkins v. Prince Cir.2002) is, not ‘clear to (4th if it was of the case’—that 224, (citing 229 309 F.3d conduct in a reasonable officer’ Corp., Loan v. Indus. Cohen Beneficial unlawful engaged ‘was 1221, allegedly 541, 1528 which he 93 L.Ed. 337 U.S. 69 S.Ct. he confronted’—then (1949)). in the situation immunity is an qualified Because v. Clem immunity from suit.” suit, law affords merely not an immunity from and 302 (4th Cir.2002) 543,
Corbeau,
failing
protect
of
a
F.3d
549
is accused
detainee
284
Saucier,
201,
harm,
B.
Although Parrish asserts four inde
very
a
high
“Deliberate indifference is
claims in the com
pendent constitutional
showing
negligence
standard —a
of mere
claims boil down to one relevant
plaint, his
Peed,
it.”
v.
Grayson
will
meet
195
the individual defend
question: whether
(4th Cir.1999).
692, 695
An
F.3d
officer is
violated Lee’s Fourteenth Amend
ants9
deliberately
to a
indifferent
substantial
through
a
detainee
rights
pre-trial
ment
risk of harm to a
when that offi-
detainee
their deliberate indifference to
substan
disregards”
cer “knows of and
the risk.
harm to Lee.10
physical
tial risk of
Brennan,
825, 837,
Farmer v.
511
114
U.S.
matter,
general
“[o]nly gov
aAs
(1994).
1970,
S.Ct.
303
it ...”
and thus must have known about
standard thus
Liability under this
842,
See,
First,
114
e.g.,
evi 511 U.S. at
S.Ct. 1970.
showings.
two
requires
Corr.,
765,
in
F.3d
ques
Dept.
that the official
Odom v. S.C.
349
must show
dence
(4th Cir.2003)
recognized
(noting,
finding
a substantial
771
that
subjectively
tion
enough that the
were aware of the
prison guards
harm.
It is not
risk
risk of
it;
they
that
recognized
plaintiff,
guards previously
have
to the
officers should
perceived
contemporaneously
the risk.
had been warned
actually must have
(4th
Bruce,
336,
2
plaintiffs
340 n.
would attack
v.
129 F.3d
assailants
Rich
Cir.1997). Second,
given
the evidence must
him if
the chance and had been
subjec
from
question
plaintiff
that the official
instructed to remove
his re
show
risk).
“in
cage
light
that his actions were
creation
of this
Simi
tively recognized
larly,
may
of that risk.” Id. As
a factfinder
conclude that the
appropriate
element, it
subjective
response
perceived
awareness
official’s
to a
risk was
inadequate
justify
official should have
as to
an
enough
patently
is not
so
inappro
actually recog
actions were
the official
recognized that his
inference
actually must have rec
the official
nized that his
to the risk was
priate;
inappropriate
that his actions were insufficient.
under the circumstances.
ognized
Harris,
383,
240 F.3d
390-91
See Brown
Having
general
set forth the two
re-
Cir.2001).
(4th
quirements
liability
under the deliber-
standard,
ate indifference
we assess the
indiffer
Although the deliberate
in the record as to each.
evidence
showing of actual
requires a
ence standard
elements,
it “is a
knowledge as to both
1.
subject
fact
to demonstration
question of
subjective
awareness
including inference from
ways,
in the usual
As
Farmer,
the extent to which
prong,
511
we must assess
circumstantial evidence.”
Thus,
recognized the
factors at
“a
the officers
at
S.Ct.
U.S.
Lee,
tending
including
the detention of
may
[an officer]
factfinder
conclude
Lee,
very
substantial risk that
due
indisputably
risk from the
knew of
substantial
intoxication,
But,
aspi
it
to the level of his
would
obvious.” Id.
fact that the risk was
during
if
rate his vomit
he were to vomit
that a reasonable officer
enough
is not
to the adult detention center
transport
risk to be obvious. his
would have found the
Rich,
Rather,
die as a result.
the risk
and that he would
self the
mask’s fit and function in
ascertained
risk as the offi-
it,
might
perceived
of the risk he
vomit. At the time
cers
we next must determine
van,
Lee
into the
EMT Earl whether the
supports
finding
was loaded
evidence
again
might
response
raised
the concern
Lee
that the officers’
thereto was de-
Farmer,
placed liberately
vomit
that he be
and recommended
indifferent.
the Su-
Notably though,
preme
“may
on his side.
she ex-
Court noted that officials
be
pressed
liability
they responded
no concern at
time about
found free from
if
specifically
effectively reasonably”
a perceived
risk. 511 U.S.
agreed
placing
observation,
with the officers that
Lee
at
they believed he somehow deserved to called in the paramedics to ensure that be beaten. of the flippantly One officers injury Lee’s head did not require treat- “got observed that the assailants th[ei]r In making ment. the critical decision re- snitch;” Odom, stating, another scolded specting how placed Lee should be in the “you should not have snitched on them van, the officers consulted with a trained guys[,] you stupid [expletive].” Id. at 771 professional. medical Recognizing the (alterations original). in In of this aspiration positional risks of and asphyxia- actually direct evidence that the officers tion, the officers and EMT Earl decided harm that welcomed the befell Odom and place Lee on his side and the officers did subjectively precautions realized that so. they positioned legs The officers then inadequate, panel had taken were Lee’s evidence, majority side, so that he concluded that in would remain on his the absence rebuttal then tilted airway his head so that his defen- dants, sufficiently supported a claim of would remain free should he need to vom- justified deliberate indifference and thus it.17 anyone Neither EMT Earl nor else say, Judge Luttig they 16. Suffice it to and I disa- ment so that would fit.” Post at 320. Odom, greed at the of the unsupported by time decision in This conclusion is the evi- over what the evidence in that case showed. dence and is at odds with the uncontradicted Unfortunately, disagreement spilled (J.A. 1476-77.) testimony has of EMT Earl. at case, disposition over into testimony Because that is uncontradicted and tempting though may point- it be to address impeachment no bases for the of that testimo- by-point shown, the dissent's characterizations of the ny ignore have been we cannot it. that, view, my Miller, facts and rationale of Odom in Wright See 9A C. & A. Federal Practice square majority opinion do not (2d ed.1995) with the in § (explaining, & Procedure 2527 Odom, majority I commend the reader to the setting in forth the of review standard opinion urge that case the reader to judgment as a matter law under Rule contrast with the dissent's characterization jury required that "the to believe ... un- here. thereof unimpeached contradicted and evidence from witnesses”); Wright, disinterested 10A C. A. dissent, Kane, According the evidence re- Miller & M. Federal Practice & Proce- (3d garding why 1998) ("If §§ how and the officers dure ed. the movant that, disregarded entirely in the van must presents credible evidence if not contro- trial, positioning favor of the view that the of Lee verted at would entitle him to a Rule 50 "nothing relatively judgment more than automatic as a matter of law that evidence legs efforts compart- accepted summary- to shove Lee's into the must be as true on a question concern that deliberate indifference expressed any present then would not be sufficient. precautions cases is not whether the officials could these short, the offi- evidence shows that precautions have taken additional —almost they precautions that believed cers took invariably, with benefit of hind- 20/20 (albeit erroneously) pre- were sufficient sight, precautions there are additional sim- that befell Lee. There vent the harm could have been taken —but whether record, ply is no evidence an ... “disregarded] excessive risk to or contemporaneous form of statements Brown, safety.” at health or 240 F.3d otherwise, justify an that the inference (noting that failure to take addi- 390-91 that their subjectively recognized showed, most, precautions negli- at tional inade- precautions prove would to be indifference); gence and deliberate quate.18 (rejecting F.3d Grayson, 195 at 695 of evidence of
Notwithstanding lack the con- “impermissible hindsight” 20/20 inappropriate subjective awareness that officers have taken de- tention should suggests response, the dissent ness of the Moreover, facility). a medical tainee to that, have taken the officers could because dissent to believe that the rule the seems measures, their precautionary additional thrust federal requires Odom “would of deliberate is more indicative conduct daily po- of local practices courts into the than that occurred which indifference departments.” Grayson, lice 195 F.3d a finding thus that of deliber my colleague correctly concurring 696. As Post at is mandated here. ate indifference ought “preci- recognizes, we to avoid such *15 however, precedent, our 315-817. Under in “the difficult de- pitous[ ] interference]” feasibility of precautionary additional the regularly by faced enforcement cisions law rarely deliber probative is measures Post at officers.” Brown, inquiry. 240 ate indifference See conclusion, the In evidence does Norton, (citing v. 157 F.3d at 390-91 Liebe responded the officers (8th Cir.1998)) show that here 574, (“Appellant 578 F.3d the indifference to substantial deliberate offi points all of the which [the actions the dis- Accordingly, of harm to Lee. risk Unfortunately, have taken. should cial] the offi- granted court should have trict did not the benefit of [the have official] Be- qualified immunity. request cers’ for hindsight, now. twenty-twenty as we do prong fails Thus, cause Parrish the first precaution must those we examine immunity need not inquiry, we [actually] qualified were under ary actions which taken.”). clear, to have right alleged the we often made consider whether As have generalized assertion follows neces- judgment party opposing ”[i]t when the motion the evidentiary guards does not offer ... material sarily holding motion our that the ..."). supporting opposing the contention deliberately to the risk were indifferent Odom Odom, in this defendants of harm to that the disagreed we over what 18. Just as in Odom deliberately to the case were indifferent showed, Judge Luttig there and I the evidence Odom is to Lee.” Post at 316-317. of harm disagree impact as now over the of Odom because, easily distinguishable case from this similarity precedent. While Odom some has above, there discussed in the text present case involved a claim because it that the officers unrebutted direct evidence indifference to a substantial risk of deliberate Odom and that welcomed the harm that befell detainee/inmate, similarity to a of harm officers worked to evidence show soon that case this one ends between risk to subjectively aware of the were both view, my Odom is instructive thereafter. their inappropriateness Odom and of only its the facts of this here contrast to Odom, at 771. disagree response to that risk. 349 F.3d simply with the dissent's case. I clearly however, been violated was established un- precedent, that, each reveals al- specific der the though circumstances this case. the dissent begins generally with a Saucier, 533 U.S. S.Ct. 2151. accurate assessment of the facts of the pillories, invariably cases he he fails to
III. include factual detail that highly rele- vant to respective panels that decided closing, obliged Before I feel to com- each of those eases. When one briefly ment considers chapter my dissent- all cases, of the facts of these as we ing are colleague’s on-going disquisition over required to Supreme do under prec- Court qualified the state of our court’s immunity edent, entirely an picture different dissent, emerg- jurisprudence. According to the es. today our decision the latest in a growing line of “individually cases that are For example, the dissent omits facts collectively indefensible and irreconcil- from his discussion of that were able,” and we as a court are “in need of highly relevant to the majority’s disposi- ju- instruction the critical areas of our tion of the case {e.g., the fact that
risprudence” represented by various of our guards never rebutted the evidence of de- I, course, decisions. Post at 31. do not indifference; liberate the fact agree. prison guards contemporaneous made matter, preliminary As a statements despite strongly indicated that dissent’s impassioned subjectively were unsubstantiated aware of the risk to claim that Odom we have turned the and of the inappropriateness doctrines of of their risk). qualified immunity to that deliberate indiffer- heads, ence on respective their legal The dissent’s Bailey discussion of analysis conducted here is in lockstep with (4th Kennedy, 349 F.3d 739-41 Cir. precedent of the Supreme Court as 2003) likewise is incomplete. According to well as that of this circuit. Not one of the dissent, in Bailey “merely setting cases forth the upon doctrine which took a person suicidal custody into *16 opinion this is based has been reheard en psychological evaluation having after been banc, nor has the Supreme granted Court summoned to the scene an emergency certiorari in any of these cases to correct caller reported who that a suicide was any errors. To the contrary, prece- imminent.” Post at 314. The dissent dent articulated and upon relied here is omits, however, that the investiga officers’ (I well-settled and not in serious dispute. tion emergency contradicted the call’s re also recognize that this opinion has no port of a suicide risk. Rather than finding particular precedential value as it repre- a depressed person suicide, on the verge only my analysis sents case, of the and the first responding officer discovered a judgment represents has been man in sitting his own calmly eating home joined by Judge King.) his lunch. During a five-minute conversa
The
important
more
observation
officer,
about
tion with the
man
denied
critique
dissent’s
intentions,
is the extent to which suicidal
and the officer discov
it is based on a selective recitation of the
ered no
preparations
evidence of
for sui
facts of our cases.
If
blindly
one were
cide. Id. at 740-41. This officer then left
accept as true the dissent’s characteriza-
the house voluntarily. Because the offi
tions of our precedent, his view of our
personal investigation
cers’
revealed that
qualified immunity jurisprudence might Bailey
risk,
was not an imminent suicide
justified.
well be
A careful reading of we found that
subsequent
officers’
in
precedent
this case as
that omits this fact
Bailey, which resulted
seizure of
forceful
man,
injuries
misleading.
to the
simply
is
physical
substantial
and a viola-
objectively unreasonable
that,
Supreme
precedent dictates
Court
law. Id. at
clearly
established
tion
qualified
in reviewing
immunity,
claims of
colleague’s treatment
My dissenting
pay
pecu-
we must
careful attention to the
County, 302
George’s
Prince
Robles v.
liar facts and circumstances of the case.
(4th Cir.2002),
in accord with
F.3d 262
635,
Creighton,
Anderson v.
483 U.S.
639-
case,19
view of that
oft-repeated
his
(1987).
3034,
107 S.Ct.
ring in the denial
IV.
Buchanan,
520, 535 n. 8
325 F.3d
Jones
unques-
Lee’s death
this case was
Cir.2003)
J.).
(4th
(Motz,
tionably tragic,
my separately
and as
con-
resorts to
Finally, I note that the dissent
noted,
curring colleague rightly has
holding as
attacking my
characterization
precipice
here “skirted the
of de-
officers
existing prece-
with
being irreconcilable
Post at 312. Nev-
liberate indifference.”
case to his char-
comparing
this
dent.
ertheless,
supports
while the evidence
the dissent asserts
acterization
may
that the officers here
have
conclusion
the officers did
only thing
culpability
their
falls
negligently,
acted
“lay
perceived
to the
risk was
conscience-shocking deliber-
short of the
way.”
him on
on
side and send
his
Lee
necessary to sustain Parr-
ate indifference
omits, however, the fact
at 314. He
Post
Amendment claims. For
ish’s Fourteenth
analysis in
this
that is most relevant
reason,
reverse the district court’s
we
Lee
opinion
—that
immunity
remand
qualified
denial of
posi-
head tilted and feet
his side with his
immu-
grant qualified
instructions
with
side,
so that he would remain on his
tioned
the five officers.
nity to each of
of,
in consultation
presence
all in the
AND
REMANDED
REVERSED
with,
who
professional
a trained medical
INSTRUCTIONS
WITH
on,
had examined
*17
possibility
recognized
who herself
KING,
Judge, concurring:
Circuit
being
might
vomit while
handcuffed
Lee’s constitu-
I
that a violation of
agree
to
adult detention center.
transported
by
been established
rights
of
tional
has not
disputes
significance
The dissent
police
and that
officers
load-
the evidence
presence
Earl’s
when Lee was
EMT
324-326,
immunity; howev-
van,
qualified
are
post at
but that
entitled
ed into the
er,
separately
I
is a close case. write
judges
significant
fact is
to both
that,
taking emphasize my view
today. Any discussion of
voting to reverse
J.,
Cir.2003)
(4th
dissenting);
(Luttig,
Alt
County,
George’s
308
541
19. See Robles v. Prince
194,
Point,
J.,
437,
(4th Cir.2002)
City High
F.3d
208-
(Luttig,
v.
330
man
F.3d
441-48
of
(4th Cir.2003);
313 And, today, only a few months after and the Constitution violate cers did holds, decided, the court con- Odom was actions clear- that their have known should opinion another au- trary to Odom—in Constitution, they did when ly violated officials, by Judge Williams—that thored allegedly an suicidal than take no more intoxicated, vomiting highly loaded a who eval- custody psychological for into person van, a his hands man into the back of emergency an uation, to upon responding and with his head cuffed behind his back was person that reporting call specifically designed a mask covered with going and was depressed, and intoxicated and from the mouth trap fluids excreted This the court suicide. home to commit unattended, nose, and left him unobserved a that there was held, acknowledging while unobservable, for the duration of a governing the clarity” in the law “lack of to a detention center— thirty-minute drive for the constitutionality of made seizures in the that resulted palpable indifference evaluation, an ac- psychological purpose from suffocation on his own man’s death have itself should which knowledgment any arguably not even violate vomit—did liability. foreclosed official decedent’s, much right constitutional later, in v. South Carolina days Odom Two clearly constitutional less established Corrections, F.3d 765 pt. De right. (4th Cir.2003), Robles contrary to again Thus, summarize, has held this court to that even a citation again without Robles) (in officer that no law enforcement Williams opinion an case—in a might know that it possibly could court majority joined to form the —the a rights of violation of the constitutional guards could be prison not held shopping him to a to handcuff detainee in for an deliberately indifferent found him in the there pole center and abandon in prison other violent mate’s assault admittedly for no law night, middle of the through their own who had torn mates purpose. enforcement cage inmate’s plaintiff into the cages and (in Bailey, without held The court has evacuation, but also emergency an during Robles) that, although it even citation held to have guards could be clearly established not a violation of violated the clear that their actions known (in Robles) for offi- rights constitutional rights of the constitutional ly established pole a detainee to cers to handcuff holdings, even inmate. These assaulted no law enforce- night, for middle of acting in the guards were though the whatsoever, it was a viola- purpose ment in high-security evacuating midst clearly constitutional tion of established had prison; to a fire mates due officers, responding legitimately for rights aggressor inmates placed the purposely an intoxicat- 911 call that emergency an victim, in that of the cages from separate person going depressed ed expressed fears to the victim’s suicide, merely to take the suicidal commit steps to assault; had taken affirmative custody psychological into individual aggressor in when the save the victim purposes. evaluation their through from began mates to break Robles) (in offi- police It held his, retreating only has into separate cage know that possibly cers could from the uncontrolla personal threat upon to handcuff rights of a detainee violate the and conduct inmates —circumstances ble at 3:00 pole center shopping him to a should which, precedent, under established (in him, held morning and abandon finding of constitu foreclosed even have to Robles a citation even without tional violation. *19 (or Bailey)) for that matter prison to denying persons their rights not to be guards acting during an emergency, subjected who to deliberate indifference at the steps prevent took numerous an assault government, hands of their through our by inmates, violent and uncontrollable not own deliberate indifference to the control- only rights violated the of an ling inmate who precedent court, not of this but ultimately (by failing assaulted to take Supreme And, also of the Court. testa- further steps specified that were not even ment to our complete inversion of the doc- court), by the but could be held to have trines of deliberate quali- indifference and clearly violated the inmate’s established immunity, fied at the same time that we rights. constitutional are failing to ensure right this basic (I citizens, we are believe also unthinking- (in And it Bailey, has held without even ly) denying to law enforcement officers Robles) a citation to that officers who their corresponding right not pun- to be merely took person a suicidal into custody except ished for conduct that is in viola- psychological for having evaluation after tion of a clearly citizen’s con- established been by summoned to the scene an emer- rights. stitutional gency reported caller who that a suicide imminent, could be held to have violat- I. clearly ed the established constitutional rights person of the taken into custody, case, In this faced with the understood (in Odom, likewise without even a Tony risk that might Marcel Lee aspirate Robles) citation to prison guards who (1) (2) alone, his own vomit and die if left during acted an emergency protect an unobservable, unobserved and in the back inmate from assault but were unable to (3) van, (4) of a heavily intoxicated with his prevent by that assault fellow inmates back, (5) hands cuffed behind his could be held to have violated clearly (6) mask, his face covered with a established rights constitutional of the as- the duration thirty-minute of a transport (in saulted inmate. But it now holds Parr- center, to an adult detention appellant ish, without even word of discussion of police nothing, all, officers did nothing at Bailey, and with no principled ground for lay Lee on his side and him send Odom) distinguishing that officials who way. The indifference of these officers caused person the death of a by transport- safety Lee’s was far more evident him, intoxicated, ing with his hands cuffed egregious by any measure than the con- back, behind his with his mouth and nose duct this court unequivocally held to con- by covered a mask designed trap fluids stitute deliberate indifference in Odom. from escaping, and unobserved and unob- so, And this is even if indulges one servable, arguably did even violate (reminiscent Williams’ incredible holding right decedent, constitutional much Robles) of our like holding that a rea- less a clearly established right. sonable officer possibly could not be ex- To juxtapose these individually pected indefen- to realize that putting a mask over collectively sible and intoxicated, irreconcilable hold- a highly vomiting person’s ings one with the other is to confirm that mouth and nose—a place by mask held in we are a court in need of instruction elastic bands and specifically designed to the critical jurisprudence areas of our rep- downwards, prevent leakage see ante at resented precedents. these In ironic 298 n. contribute to the aspira- 2— parallelism, we are set on a sys- course of tion and suffocation of person on his tematically (though I believe unthinkingly) own vomit.
315 placed mask over mouth unquestionably bind- been his and Odom Because case, and insuscepti- this nose. ing precedent distinction, I would affirm principled
ble of summary of the court’s denial district A. remand the judgment appellants to case for trial. Odom, evacuating In prison guards were
inmates a out- high-security prison from to cages, to an emergency door due caused II. Odom, by prison. fire the who had must, Judge Importantly, as she along been other in- evacuated with the “recog- officers Williams admits that the mates, by was attacked in- and beaten that, intoxication, of given Lee’s level nized through mates who were able to break of aspirating Lee was at risk vomit” adjoining cage from their into his. Odom also admits that this she guards sued the prison who had evacuated then pro- Ante at 304. She substantial. inmates, alleging guards the that the had however, ceeds, deny to reason- deliberately been indifferent to the risk could that the officers able factfinder find he by be harmed the other would the risk that “appreciated incremental inmates. granted The district court sum- by they leaving created the themselves mary guards. the This judgment to court during spit Lee’s head the ride mask over reversed, holding allegations, that Odom’s ie., to detention the risk the adult center — believed, if prison established that the vomit, spit that, Lee should guards acted with deliberate indifference Lee’s vomit around his face and trap would ultimately harm that befell toward the effectively specially purpose defeat the Odom, in- aware that because were on his placing him on van floor side trying mates to into were break Odom’s tilted.” Ante at 305. his head him, cage failed to do and attack moment, arguen- For the I will assume enough material- prevent risk from Judge do Williams’ as- the correctness court izing. F.3d at 769-72. The so that no factfinder could sertion reasonable were, held, though defendants even recognized conclude that officers throughout question, acting the events in spit risk” with the “incremental associated prison emergency in the of a midst however, on this assumption, mask. Even steps had taken a number of affirmative legal still in her Judge errs con- Williams harmed at the prevent being Odom appellee has not made out a clusion instance, For hands the other inmates. indifference, prima facie ease deliberate in- had the hostile the defendants Odom, because, under when the facts are separate from cage mates in a Odom’s truly viewed most favorable concerns, expressed response to Odom’s appellee pri- made out a appellee, has attempted subsequently to and had even ma facie case deliberate indifference other inmates tried to free Odom as the the risk that even Williams admits retreating when cage, break into his recognized. particular, un- inmates with they were threatened der factfinder reasonable could at 771. And weapons. homemade See id. deliberately conclude that the officers were held, it did not though even the court so indifferent to risk that suf- identify guards action that single transport vomit during focate on his taken, to take. center, but failed had no should have adult detention even *21 B. the police back seat of a cruiser instead of van, the where he could have been ob- in When the facts this case are in viewed Or, served or at least heard. very the light plaintiff, most favorable to the minimum, they could have Lee in is clear that our disposition. Odom controls compartment van, the left from Indeed, crediting arguendo Judge even position which he would have been visible holding juror Williams’ that no reasonable to Cleveland during the drive.1 possibly could find these officers were Second, Odom, in placing aware that over Lee’s head a prison defendant guards designed trap were responding hold fluids excreted to an emergency, evacuating violent, highly his mouth and nose dangerous pris- increase the risk that he would suffocate oners from their cages on his own cells to makeshift vomit, complained the conduct outdoors in protect of in this order to them from case fire. obviously is far And the inmates less defensible and were uncontrollable even correspondingly during Here, far more indicative of de- evacuation. in con- trast, liberate indifference than there emergency the conduct of was no whatsoever guards in confronting Odom. the defendants. The officers had an unlimited amount of time to reflect First, Odom, noted, as the court could calmly on Lee’s transport and to consider identify any not even steps that the defen- measures that would ensure that the risk dant officers prevent could have taken to they to Lee that knew existed would not Odom, the assault on but held nonetheless materialize during the trip to the adult guards had been deliberately in- Indeed, detention center. in response to a different to the risk of harm to Odom. See deposition question direct asking whether Here, contrast, id. at 771-72. there he “had time to think about whether the any were number of reasonable and obvi- hood should be removed from Mr. Lee ous alternative courses of readily action before he left wagon,” Lieutenant available to the officers other than simply Dooley answered the affirmative. See leaving highly intoxicated Lee hand- J.A. 175. cuffed and unobserved in the back of the van for the ride to the adult Third, detention guards took affir- center. They could assigned have some- steps mative to place Odom in a van, one to ride in the cage separate observe Lee inmates; from the hostile during transportation to the detention they cen- subsequently attempted to free Odom They ter. transported could have Lee in cage from his when it became evident that Judge where, here, Williams contests neither that correctness. For additional identify court in Odom could not additional precautions easily are both obvious and un- guards measures which the defendant in that dertaken, yet are not despite undertaken taken, case could have nor in this case harm, awareness of a substantial risk of any number of reasonable alternative courses reasonable factfinder could conclude from the readily of action were available to the defen- availability feasibility obvious of those Rather, Judge dant officers. Williams at- precautions additional that an official was tempts to deflect attention from direct subjectively inappropriateness aware of the comparison between this case and Odom with his conduct. And such determination the assertion precedent our "[u]nder ... directly question would be relevant to the feasibility precautionary additional whether that official is liable for deliberate rarely probative measures is in a deliberate indifference, inquiry.” very indifference Ante at under the standard which forth, disagree Judge I Williams herself Williams as to sets see ante at assertion, but I need not demonstrate its in- 302-304. away, compelling to and a more one trying gain access inmates were other withdrawing only when cage, finding Odom’s of deliberate indifference than was weapons homemade threatened with were Odom. id. at inmates. See by the violent contrast, Here, in all officers did in C. recognized to Lee *22 step him his side in the van—a place to by the palpable inconsistency Unsettled scarcely thought sufficient to
that could holding alleged between the her that con- aspirating of danger Lee his pre-vent the in duct did in- Odom constitute deliberate vomit, that possibility the Lee’s given own holding difference and her that the alleged ride, in during could shift the as position not, conduct in this does Judge case did, that (reciting it 1503 Lee fact see J.A. employs two-step strategy a in an Williams side, not on but face lying found his First, attempt distinguish to in Part Odom. down, the when the van arrived at deten- I of her in a opinion, transparent effort to center), and the fact that Lee’s hands tion appear make the facts this case as dis- back, his preventing were cuffed behind tinguishable possible, Judge from Odom as began self-help from he to him event in light Williams describes these facts the choke. officers, most to favorable the defendant necessarily holding It from our follows even claims them “in as she to view the guards deliberately the in that Odom were light plaintiff.” favorable to the most Ante risk of harm to indifferent Second, facts, having at 297. so skewed the in the this case were delib- that defendants Judge then claims that Odom is Williams erately of harm to indifferent the risk Lee, crediting distinguishable in- Judge even Williams’ because Odom there was no holding juror that could rea- credible the responded evidence that defendants sonably officers conclude were subjective “with that their re- awareness spit putting aware that mask over Lee’s sponse inappropriate,” while in this mouth and nose increase risk none. ante at 307-309. case there is See aspirate that Lee and suffocate on would actually facts of ease are When the Indeed, comparing his own vomit.2 and light plain- viewed in the most favorable to respective conduct contrasting the however, tiff-appellee, is clear cases and the surround- the two Judge distinguish efforts respective Williams’ ing in which the circumstances is, occurred, the case far Odom fail. conduct instant footnote, lungs Judge suggests reaching vent his either con- air Williams through through mouth his nose. or my spit cern that statement that the mask was "aspiration While on vomit” exist- this risk wrapped Lee’s around mouth nose mask, see, e.g., Krueger ed even without misimpression that the "should not create Delta, Fraternity WL Phi Gamma 2001 filtering medical fit over Lee’s bacteria fabric (wrongful (Mass.Super.2001) death nose, it did not.” Ante at 298 n. 4. which heavily case which intoxicated individual obviously This concern is irrelevant. The wearing who mask died when was not Lee, ultimately and the risk breathing aspirating stopped vomit he after death, was Lee caused Lee’s not that would unobserved), being while left alone portion die because the middle mask this risk because middle increased directly prevent breathing, vomit, Lee’s would itself portion once of the mask ensured vomiting would die expelled, Lee after remain close to would nonetheless vomit, position inhaling optimal would then such which then Lee’s mouth and thus in windpipe. aspiration into proceed windpipe pre- and thus fatal Lee’s to block his transported Cleveland directly Mr. Lee the Adult Detention Center without inci- Judge
As to skewed Williams’ view of dent in Mount prisoner Vernon’s facts, junctures transport critical she sets wagon. them forth in the most This was accepted favorable and estab- the defendant officers. procedure lished because the wagon is much easier to up clean prisoner should a
First, describing when the defendant of- during vomit transport transport.” ficers’ decision to J.A. 1332. from the station to detention police center Though there is no evidence that Dooley cruiser, van instead in a Williams “accepted had practice and procedure” in forth “fact” that “Dooley sets directed mind when he directed that Officer Cleve- that, ‘accepted practice accordance with land cruiser, use the van instead of the procedure,’ police Cleveland use a van *23 there is Dooley evidence that had mind specially that had been modified to trans- port prisoners.” purely Ante at practical 299. To the ex- concerns that the van Judge tent by Williams means this either would be easier to clean up than the cruis- Dooley that Lieutenant contemporaneously er, in the event that Lee were to vomit en announced that he had decided Lee should Indeed, route.3 the notes of Sergeant Ja- transported police be in the van because coby, from an interview with Lieutenant by such required “accepted practice was Dooley purposes conducted for of Internal procedure,” just or even that Lieuten- Affairs day review one after Lee’s Dooley ant by himself was motivated a death, state the following: “Transport recognition “accepted practice of pro- wagon to clean up.” J.A. 1485 —easier choosing cedure” in van the over the cruis- added). (emphasis evidence, Given this er, even announcing without such to the coupled with the recognition that the offi- officers, Judge other defendant Williams is already cers had seen Lee vomit into the simply mistaken. No evidence in the rec- cruiser in which Cleveland transported ord, including evidence from the deposi- him police station, a factfinder could tions of themselves, the defendant officers easily regardless conclude that proce- of supports either of propositions. these And dure, the fateful choice between cruiser the page Appendix the Joint to which and van was made for no better reason Judge says nothing Williams cites whatso- than that it would be easier to ever about clean the Dooley, Lieutenant much less Rather, about his van transportation motivation. after Lee’s page that to the de- merely states, in part: relevant “[Officer] tention center.4 reason, course, seats, 3. This van, is the same as the whereas in the Dooley back of the reason "accepted practice behind the figured, and the other officers Lee would have procedure" page referenced in the from the more room to stretch out and would be at less Appendix Joint Judge to which Williams cites. injuring risk of himself.” Ante at 299 n. 7. light But viewed in the most favorable to the Judge appear Williams stage does not at this plaintiff-appellee, nothing this is more than however, Dooley’s to explanation, credit coincidence. that, by subsequent evidenced her statement contrast, "[i]n Lieutenant Brenda Akre stated footnote, Judge In a Williams also recounts transporting that intoxicated individuals in a Dooley’s explanation Lieutenant that police accepted van 'was the and established choice between the van and the cruiser was procedure wagon that, because the is much easier by motivated concern "in the backseat of cruiser, up prisoner to clean should during Lee vomit up- would not remain seated ” right 1332), bang transport,’ (citing and thus by his head id. J.A. on the followed plexiglass divider between the opaque pronouncement front and back her somewhat that to ex- in ror could conclude that due Lee’s of the facts Continuing her recitation intoxication, to the defendant did most favorable treme state light officers, forth as Judge next sets Williams thinking not even bother about the difficult van, placing “fact” when place to him on trying task of the narrow Lee should determined that “the officers bench, onto simply laid him the floor of bench on the because placed not be them, the van easiest because for injure off it and would roll risk he safety. regard without Lee’s Thus, Ante at 300. himself.” requirement Undeterred that the officers made suggests Williams light facts be stated most favorable determination that it and reasoned careful plaintiff-appellee, Judge Williams next if placed were be better for Lee Lee would presents as “fact” that the officers took than on the the floor of the van rather on legs care that he “position[] Lee’s so But, of the ad- especially bench. during would on trans- remain his side fact there no discussion mitted however, Again, port.” Ante the officers about between whatsoever juror compelled reasonable would not be on be whether Lee should ap- anything find that the officers did floor, 1265, a or on the see J.A. bench positioning legs, careful of Lee’s proaching juror compelled would not reasonable or did such purpose any sort of careful and find either that ensuring Lee would remain his side that, or was made reasoned determination *24 Lee, during transport. who was five-feet- made, made for if such determination was tall, eight-inches hardly length- could fit of and for other rea- the benefit Lee not police compartment, wise in the van which Rather, having already concluded sons. only long. was five-feet-seven-inches the cruiser and that the choice between light 260 In Compare J.A. with J.A. 1167. by of the van was driven considerations this, given officers’ mo- of and the obvious then officers’ convenience rather Lee’s the liability making to try by tive to avoid juror easily could con- safety, reasonable possible their actions seem as careful as Lee on the placement clude that the of fact, jury con- after the a reasonable could similarly instead of the bench was floor ju-- clude what was afterwards described a reasonable that particular, motivated. head.” J.A. 1485 is material and about Lee his the extent this evidence "[t]o "bang[ing] added). conflicts, light (emphasis it in most favor- we view the Second, plaintiff).” apart the be- [the able to even from contrasts Dooley's explanation deposition and tween Dooley's too But this still far charitable record, explana- the other statements the explanation the choice between van van choice between cruiser and tion that the and the cruiser was made out of concern that might of out concern that Lee made head,” explana- might "bang his which partic- "bang sense. In his head” makes little by Dooley during depo- given tion was first ular, appellee argues, also an there was year August over a after Lee's sition in significant possibility that Lee obvious and (deposition tragic death. See J.A. 182-83 left, being ex- “bang after would his head” First, explanation Dooley). Lieutenant the any by seat tremely intoxicated and unsecured by during August depo- given Dooley his 2002 device, restraining to slide belt or other only not with Lieutenant sition contrasts floor the back statement, on the metal around hard Sergeant also Akre's but with Jaco- van, compartment police sandwiched the by’s with *25 juror sonable not compelled would be to with the dissent’s characterization thereof way, see juror the facts this a reasonable here.”). But I do not believe such is ap- could, justifiably would, not most but propriate, in this case in which a man’s life see way given the facts this the record taken, tragically has been and in which a juror evidence. Because a reasonable reasonably could easily factfinder could way, see the facts this stage at this given the evidence record —that find— we way must view the facts this for the the defendant officers deliberately were purposes legal analysis, including of our possibility indifferent the of that man’s most significantly our analysis Rather, how death. I feel it incumbent upon present Odom the explain controls why case. See me to I precisely believe attempt fact, First, In a vain to bolster officers’ testimony Earl’s is neither. it is they position statements that took by care to contradicted the circumstantial evidence legs body center, Lee's that his upon such would not shift that arrival at the detention route, shifted, Judge body en Williams relies the fact on Lee's had he for was found face Earl, Second, that EMT Kathleen who observed down. See J.A. 1503. it is im- being by loaded into the van but peached who herself has merely the fact that Earl was not case, witness, not been this sued in also that participant testified a disinterested also a positioned legs the officers Lee’s police so he would in the events at the station. Prior to Judge least, remain side. According on his the commencement of this lawsuit at Williams, testimony position- Earl’s as to the and before was clear that Earl would not be herself, ing legs must Lee’s be believed even at this sued Earl had incentive make her stage, it is both because '‘uncontradicted” efforts the efforts of the defendant officers "unimpeached.” at appear Ante 308 n. But in reasonable. doing nothing on elude that more than distinguished laying Odom cannot patently Lee on his side was “so inade- contends. Judge that Williams grounds requisite quate” justify as to inference. Williams, Judge Odom According to Indeed, Judge King separate as in his that the defendant ground rested on admits, candidly concurrence “common “responded per- to a in that case guards sense indicates that officers’ actions subjective that awareness ceived risk were ...” at 312. If inappropriate Ante as inappropriate,” dem- response their is, true, undoubtedly this which it then is open- guards’ statements onstrated juror all that a reasonable would need to indicating that the mocking Odom and ly find in order conclude that these officers to be beaten. guards believed he deserved subjective acted “with that awareness their rested on no Odom See ante 307-308. that inappropriate”, were is these [actions] in did the Odom ground. such Nowhere sense, possessed officers common but sim- forth, necessary a set as ele- court even ply safety cared too little about Lee’s indifference, liability ment of for deliberate carry that out clear dictates of common “re- defendant requirement record sense. Given the above-recited evi- subjective spond[ perceived to a risk with ] dence, jury certainly a reasonable could inappro- that [his] [is] awareness finding. this make its re- judgment much less did priate,” For this finding.6 such versal rest III. alone, attempted Williams’ Judge reason arguen- point, accepted Until this I have of Odom is indefensible. distinction holding Judge do Williams’ incredible Judge But were Williams’ revision- even jury possibly could not find holding of the court’s ist characterization were aware of risk inherent correct, would still be in Odom Odom head, putting mask over Lee’s case, is just In this there distinguishable. nose, simple for the reason that mouth if as there was as much evidence holding requires Odom that a reasonable more, “subjectively the officers find have jury could these officers to been recognized ‘inap- were actions [their] deliberately indifferent were whether they per- propriate [the risk existing this increase to the aware of ” herself cor- As Williams ceived].’ But, fact, just holding or not. states, rectly may “a factfinder conclude *26 factually, Judge as unsupportable, perceived a response that official’s [an] is, of Odom attempted Williams’ distinction inadequate justi- as to patently risk sowas legally. actually the fy an inference that official recognized that to the risk his A. under the circum- inappropriate the Viewing appellee proffered before dis- Ante the The stances.” at 303-304. court, and into evidence plain- trict would offer facts in the most favorable Hood, above, trial, exemplars TranZport at of the supra as see tiff-appellee described mask on Lee.7 301-304, juror type spit the used at a could eon- exact reasonable forth, (omit- omitted), 770 (setting 349 F.3d at a Compare 6. ante at 302-304 necessary liability requirement). for deliberate element ting reference to such a indifference, requirement "the the that evi- question the dence must show that official Indeed, using picture logic a is that”[if] subjectively recognized that actions were his words, ... a three-dimen- a thousand worth risk”) (citation light of inappropriate [the] 322 added). description of the
Judge spit (emphases own Ante at n. A Williams’ (which glance factfinder could one Judge foils Williams’ reasonable take itself mask, at an exemplar spit such which deny is attempts later the obviousness of place by held in an elastic on device) top band with this the risks associated reads bottom, which, and on elastic material as follows: Judge description, even under Williams’ TranZport is specifically The Hood de- ” neck, snugly around the individual’s “fits signed to be on when used detainees a reasonably and immediately and conclude exposure risk of officers’ to infectious that the officers must have been aware present. is The [spit mask] disease is leaving spit that such a mask on the unob- bag shaped goes like a or hood and served, handcuffed, extremely and intoxi- over entirely the detainee’s head and already-pres- cated Lee would increase the neck and consists of three sections. The ent suffocating risk his on vomit top-most portion of the mask is made of dying during transport to the deten- nylon netting open a fine that is and see- words, tion center.8 other the spit top from through covers ample mask itself constitutes evidence to detainee’s head to beneath the nose. justify finding the officers under- mask, portion begin- The middle of the danger stood full well the to which Lee ning separated below the nose and exposed when affixed the mask top portion by a thin elastic band Lee, knowing he had vomited and one-quarter wide, less inch is than vomit, might continue to handcuffed him is made of a breathable bacteria-filtering back, behind him in the very loosely medical fabric that covers van, back of the unobserved and unobserv- chin the detainee’s mouth and area. able, for the duration of the drive The medical is not form-fitting, fabric adult detention center. pouch but rather acts as around the B. head. Beneath wearer’s the bacteria- filtering fabric medical is the bottom- Ignoring entirely power of the mask section, most a four-inch sleeve made of evidence, itself as circumstantial Judge a gauzy lightweight elasticized material three-pronged Williams constructs a ratio- snugly, although tightly, support nale to holding her “the evi- fits neck easily around detainee’s and is dence does not show that the incremental or expandable. stretchable spit associated with the mask was so object sional worth Tr. of cal Oral fabric covers a wearer’s mouth chin million/' Arg., appellee exemplar Earl, indeed, “very has even included loosely.” area EMT spit part appeal. masks as of the record testimony whose “disinterested” Hood). (exemplar TranZport See 5 J.A. extensively Williams relies in other contexts one), (although not in this see ante 308 n. text, mask, tight that the mask testified "wasn't real I As assert even as *27 either,” it, just and it wasn't loose but that "it Judge provides Williams describes itself fit.” 1473. J.A. Nor can it be said that the sufficient circumstantial evidence that the of- elasticized at the dangers material bottom which “fits leaving ficers were aware of the in it snugly” during transport easily on around the wearer's neck "is Lee to the detention said, however, least, expandable.” very or Judge center. That stretchable At the Williams' description actually represents easily this yet material would not be stretchable another light expandable perspective failure set or to forth the facts in the from the relevant most case, plaintiff-appellee. particu- heavily-intoxicated favorable to the in this that of a de- lar, a reasonable factfinder would not be com- tainee who has been handcuffed behind the pelled bacteria-filtering find that to the medi- back. Judge contradiction to the evidence that as to in of this incident time the obvious supporting the knowledge.” describes as of actual Williams an inference justify (1) loosely claims that the mask Judge proposition Williams at 305. Ante fit sufficiently loose-fitting enough to out the simply mask vomit the was that flow for Moreover, officer that fluids in the hearing at least one bottom. before convince to (2) bottom, that the in simply flow out the court and its brief filed could district recognize any possibly emphatically could not maintained appeal, appellee spit a using such to disingenuous associated it for appellants risks that was (3) training, and specialized loose-fitting mask absent claim that the mask was did a medical technician that because even out the enough simply for flow vomit dangers inherent use recognize mask, the not the because the officers bottom of mask, not dangers must of those the liquids the into expelling had observed Judge of Williams’ prong Each any liquids obvious. not flow out mask but had seen on the record unsupportable 1745-46; is as rationale Appellee’s the bottom. See J.A. us as the ultimate conclusion before is Br. at the rationale is construct- of which support And, argument, at oral Indeed, Judge each of prong as to ed. questioning Judge Williams herself from rationale, Judge either Williams
Williams’ nature of mask loose-fitting as to the the misstates directly relevant facts or omits could flow out the bot- whether fluids present. that does facts she the tom, posi- press continued to this appellee tion: expectorated some- “at He first states that least COUNSEL: Judge Williams hood, none it leaked ..., into the but viewing thing the manner one officer when neck, out. fit around Lee’s in which mask impression that it fit away with the came thought I WILLIAMS: Well JUDGE that, enough in the event Lee loosely such did, that down his throat that it it went
vomited, room ‘plenty there his chest. onto ” kind of exit out.’ Ante at liquid lot of No, no. That was COUNSEL: 1272). Judge I (citing J.A. understand us- point point. whole That was this, that mean Williams thing ing apparently. this loosely, merely fit in fact did impression that fluid one officer had Indeed, fact Arg. Tr. of Oral mask, flow the bottom of could spit point using” “whole latter, it if it means the would be because leaking prevent fluids from mask was summary judgment analy- irrelevant area, entirely the face would be out from assumption, the evidence sis. On conclu- jury for a to reach the reasonable loosely anything mask fit uncon- who, in deposition sion that the officer tradicted. lawsuit, de- filed his appellee taken after so “extremely loose” with, mask as own scribed the begin
To
Williams’
de-
bot-
easily flow
“would
out
fluids
scription
equipped
the mask as
unth
tom,”
dissembling
simply
J.A.
on the bottom
elastic material
“fits
liability.9
an
to avoid
person’s neck stands
effort
snugly” around the
mask,
had
that the mask
vomit
an officer stated
into
9. EMT Earl also testified that
*28
station,
through
vomit
gap
which
underneath the chin
ques-
to her
her at the
in
to
course, as even
758. Of
could flow out. J.A.
happen
would
if Lee were to
tion about what
hardly
Judge
It could thus
be less tenable for
Williams here
serves to con-
rely
Judge
at all on this “evi-
Williams
firm
her
today
that
decision
cannot be
loose-fitting
dence” of the mask’s
nature.
with
reconciled
Odom.10
2.
3.
Next, Judge Williams asserts that
the
experience
officers’ lack of
direct
“prior
Finally, Judge
Williams focuses
the
type
any
with this
of mask or
train-
formal
placed
fact that the
in
Lee
the van
ing
plausi-
on its use ...
the
diminishes]
in the
presence
pro-
a “trained medical
bility of the inference that
the officers
fessional,” EMT
In particu-
Kathleen Earl.
actually recognized the risk associated
lar, Judge
emphasizes
Williams
that even
use.” Ante at
In
its
305.
other
being
as Earl observed
the
words, Judge
rejects
Williams
that a rea-
van,
“expressed
she
no concern at that
appellants’
officer in the
sonable
shoes
spit
specifically
time about the
mask
and
recognize
spit
putting
could
that
a
mask of
effectively agreed with the officers that
type
the
described above
a vomiting,
over
placing Lee on his side was
sufficient
highly
person’s
intoxicated
mouth and mitigate any risk to Lee.” Ante at 306
nose, would increase the risk that
added).
(emphasis
Accordingly, Judge
person might suffocate on his vomit. This
reasons,
Williams
fact
a
“the
trained
precisely
reasoning
is
the
kind
that was
recognize
medical technician
did
the
employed by
majority
in Robles v.
risk
transporting
associated with
a hand-
(4th
George’s County,
Prince
accord the concern vomit Jackson, Thomas, vin Gerald spit into the mask. See J.A. 758. From Claudine Falkner, Razo, this, juror Criswell, Rufino a reasonable could conclude not David Larry Oliver, Cloudy, spit the risks associated Michael Mark obvious, Fletcher, Quincy Randy were these risks Ratcliff and Horn, actually Plaintiffs-Appellees, called had been officers’ attention and were their minds at fresh the time loaded Lee into the van. CO.,
INTERNATIONAL PAPER Defendant-Appellant. IV. No. 03-20721. precedent Under this circuit’s jury reasonably could conclude that the Appeals, United States Court of officers’ conduct in this ease would consti- Fifth Circuit. tute deliberate if indifference even the offi- of the specific ways cers were unaware May which use of the mask exacerbated the
admitted aspirate risk that Lee would on his own vomit. It follows a under fortiori that a jury
Odom could conclude that the officers’ conduct constituted deliberate in-
difference, to the extent that the officers were aware that of the spit use mask could suffocation,
increase the risk to Lee of yet nothing prevent did more Lee’s death than to turn Lee his side. Because a jury could readily conclude that these offi- precisely
cers were so as this aware — jury held court that a could find that the Odom were so aware dangers that befell Odom—it is doubly indefensible for the majority to hold that jury
no could conclude that the officers’ conduct rose to the level of deliberate in- difference.
I would affirm the district court’s denial summary judgment to the defendant officers, and majority’s I dissent from the refusal to follow Odom and do the same. notes the interview Lieutenant on one side and between a metal divider Dooley purposes for conducted Internal other, 23, 2001, during twists wooden bench on the the May day review one Affairs on death, thirty-minute to the merely: and drive turns after Lee's which stated 27; Appellee’s center. Br. "Transport wagon up," detention See to clean —easier Dooley’s J.A. at 638. mention concern see also and included no legs positioning Virginia, as careful of Lee’s so he States v. United West 339 F.3d (4th Cir.2003). 212, 214 nothing would not over was more than roll relatively automatic efforts to shove Lee’s legs compartment they into so that the fit.5 would Williams’ distorted recitation of bottom, actually At when viewed the facts, itself, the doubts raises about the light to plaintiff-appellee, most favorable credibility of her claim that Odom is distin- the that the facts show officers chose the guishable on ground the in Odom van over the cruiser no reason better there evidence that the defendants convenience, than despite their own responded subjective “with awareness that safety, risks to and without feel- Lee’s their was inappropriate,” while in ing required by that this choice was “ac- this case there I am tempted is none. cepted practice procedure”; they simply “to commend the reader laid Lee onto the hard metal floor the majority opinion in urge ] Odom and [ (al- back of without caring the van about reader contrast it with” facts of) though fully possibility aware case viewed in when most favor- position his shift might or that he plaintiff. Compare able to ante at 308 even hit his on the floor head or sides of though n. (“[Tjempting may it be to compartment; the transport they point-by-point address the dissent’s char- did nothing approaching position- careful acterizations of the facts rationale of ing of ensure legs he not roll would that, view, in my square Odom do over, merely shoved his feet inside the majority opinion I commend compartment so could close door majority opinion reader in that way. him his send a rea- Though urge case and reader contrast