Mimesis Law
24 June 2017

Cops Vow to Save Your Life Even If It Kills You

December 21, 2016 (Fault Lines) — There’s nothing like a good qualified immunity story to get the blood pumping. Every good QI story has three important elements:

  1. A police officer does something so stupid that any eight-year-old could see it was a bad idea.
  2. A court points out that no one has ever been dumb enough to try that particular thing before.
  3. As a result, the officer is immune from suit.

So it is with the Tenth Circuit, which held  that officers who killed a patient for refusing life-saving medical care would be immune from suit. If they hadn’t tased the man to death, the Court reasoned, he could have died by leaving the hospital.

Johnny Manuel Leija hadn’t been feeling well. In fact, he was seriously sick. He had severe pneumonia in both lungs and he didn’t have nearly enough oxygen in his bloodstream. Because brains need oxygen, hypoxia can lead to irritability, confusion and behavioral changes. In this case, Leija cut his IV tubes and began wandering around, bleeding from the wounds on his arms.

The nurse tried to walk him back and get him some treatment, including Xanax for his apparent anxiety, but he began acting kind of nuts. He accused her and the doctor of telling him lies and secrets and trying to poison him.

Nobody could keep an IV in his arms to help him get reoxygenated, and it was pretty clear from his shouting that he was God and Superman that the medical staff would need some help to get the man treatment.

Enter the police. Three officers went to the hospital to help out, when they encountered Leija walking down the hallway trying to leave the hospital. They were told that he was so gravely ill that if he left the hospital, he would die. They sprang into action.

At first, they tried the course of reason. One of the officers tried talking Leija into returning to his room. But Leija wasn’t entirely there, mentally, and so he refused and began picking at the gauze and tape in his wounds, bleeding all over the floor. Then officers tried the one tactic that always works—screaming at a mentally ill person to get on his knees and calm down.

Calm down is a phrase with a long and storied history. It may be one of the most paradoxical expressions in the English language, because there are few words more accurately calibrated to piss off the recipient. It doesn’t work with dogs. It doesn’t work with babies. And from this example, rest  assured, it didn’t with Leija.

So two officers grabbed him by his arms and pushed him face first into a wall, while a third put his taser into “drive-stun” mode and jammed it into his back. Here’s the thing about drive-stun mode. It doesn’t work by making your muscles go stiff, like when you use the probes. Rather, drive stun mode is a method of “pain compliance,” basically, hurting the person until they do what they’re told. Drive stun mode tends to leave scorch marks.

Here’s a guy who does not understand his surroundings. He’s anxious and wandering around. And the method that police chose to use to subdue him was not to use the probes that might incapacitate him, but instead to try pain compliance. It didn’t work. Leija kept fighting until an officer buckled his knee and sent him to the ground, at which point a nurse injected him with halidol. In response, Leija vomited a clear liquid and died from lack of oxygen.

When it first got the case, the Tenth Circuit ruled that the officers didn’t have qualified immunity. Sure, Leija was defiant and mentally ill, but he was also on the verge of death. Relying on several cases where courts had ruled that officers could not use their tasers on disabled people who posed little risk to others, the Tenth Circuit said that a reasonable officer would have known this level of force was excessive.

But the officers appealed, and the Supreme Court of the United States sent the case back, asking the Tenth Circuit to take a second look after reading Mullenix v. Luna. In that case, an officer defied orders from his superior not to shoot at a man who was fleeing from police at high speeds and heading towards a tire strip and fired six shots at the man’s car (or so he claimed), somehow sending a slug directly into his neck, then bragging to his supervisor “How’s that for proactive?” In that case, the Supreme Court said that because there were no cases dealing with a felon fleeing towards, rather than away from officers, there was no clearly established precedent that “squarely governed” that the shooting was unlawful.

So the Tenth Circuit did the same thing here. Even though its earlier opinion had found a few cases dealing with tasering disabled people, it now found that those cases just stood for the “general principal” that you shouldn’t use potentially lethal force on people who pose no threat. They would not inform “every reasonable official” that you shouldn’t use pain compliance on a dying person for the purpose of securing him medical care. Especially because, as the court pointed out, no nearby doctors told the officers that a taser might kill Leija.

Now listen, a reasonable jury might look at what the officers did here and find that the force wasn’t excessive. Or that they were simply doing the best they could in a difficult situation. But somehow the hydra of qualified immunity, a doctrine that was wholly pulled from the butts of nine unelected lawyers and never passed into law by any legislature, kept a jury from ever hearing the case. Instead, the court just blithely ruled that no jury could find the officers were on notice that their force was excessive because the excessiveness of the force was not “beyond debate.”

When it comes to how citizens get redress from wrongful government action, the only law that “squarely governs” is the convenience of public officials.

6 Comments on this post.

Leave a Reply

*

*

Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • Brad
    21 December 2016 at 9:25 am - Reply

    “QI” for qualified immunity — I like it. #qi

    • Andrew Fleischman
      21 December 2016 at 10:08 am - Reply

      Appropriately, the reverse of IQ.

      Special bonus I forgot to mention, the “no tasering a dying person to get him medical treatment” situation was not even ruled on here by the Tenth Circuit. So there’s still no case that squarely governs whether it’s okay.

  • RICHARD KOPF
    22 December 2016 at 9:47 am - Reply

    Andrew,

    Great post on a vexing issue (“qualified immunity”). As this case illustrates, the old saying that hard cases make bad law is particularly true in excessive force cases where the defense of qualified immunity is raised.

    But, any doctrine (like qualified immunity) is best tested in unique cases like this one. Such cases allow us to explore the strength and weaknesses of the doctrine. You have done us a service by writing about this terribly sad case.

    For what it is worth, I believe the Tenth Circuit got it right the second time around, after the Supreme Court sent the smoke signal. Notice also that the dissenting judge in the first appellate case, who would have granted qualified immunity, wrote the majority opinion granting qualified immunity after the Supremes reversed and remanded for reconsideration.

    All best.

    RGK

    • Andrew Fleischman
      22 December 2016 at 2:42 pm - Reply

      Well, unfortunately, if the case turns out not to be unique, the next officers get to claim qualified immunity too, because no one actually reached the question of whether the force was excessive.

      What the opinion tells officers is that, excessive or not, you can’t be sued for tasering someone for the purpose of getting them medical care. That’s not to say that the officers in this case were acting out of malice. But I sure hope the next set will think twice before reaching for that tool.

  • Links #339 | The Honest Courtesan
    30 December 2016 at 5:02 am - Reply

    […] “Never” really does mean “never”. […]

  • markm
    2 January 2017 at 10:01 am - Reply

    It was three cops against one man who wasn’t getting enough oxygen. They could have simply grappled with him and haukled him back to his room, no weapons required. I’m filing this under “coward cops”.