Lawsuits against fire and EMS personnel alleging failure to use due care in an emergency response usually are brought as negligence cases in state courts. However, when the defendant is employed by a governmental body, states have statutes limiting the damages that can be collected. Consequently, plaintiffs sometimes instead bring suit in federal court, where no such limits apply if a violation of a constitutional right is alleged. When negligent acts become a constitutional violation is a matter for the court to decide. A case involving this issue found its way into federal court in Tennessee recently.

Frederico Becerra Jr.'s personal representative brought a seven-count complaint against two firefighters, two paramedics and an EMT of the Nashville Fire Department, collectively referred to here as “the responders,” alleging that they violated his Fourth and 14th Amendment rights. It stated that on July 15, 2004, at approximately 9 p.m., Becerra's grandmother called 911 requesting medical attention for him, reporting that he was experiencing an epileptic seizure. On arrival, the responders briefly discussed Becerra's history of epilepsy with her. The complaint alleged that the responders then restrained him “by using their bodies to apply weight and pressure to his head, neck, shoulders, arms, torso and legs in an attempt to prevent him from moving.”

The complaint went on to state that in a further effort to restrain Becerra and protect themselves, the responders tied his hands and ankles behind his back and continued to apply pressure to him while he was in a prone position. The complaint claimed that the responders didn't take any precautions to ensure that Becerra had a clear passage to breathe, and shortly after being restrained in this manner, he died. There was no allegation that any of the responders acted purposely to harm Becerra, but the claim was that they acted negligently or with deliberate indifference.

Four counts in the complaint eventually ended up in the U.S. Court of Appeals for the Sixth Circuit in a case entitled Peete v. Metropolitan Government of Nashville and Davidson County, et al., No. 06-5321 (2007). Those counts included exercising excessive force; failing to provide medical attention; conspiring to deprive Becerra of his constitutional rights; and failing to protect Becerra from the other emergency actions. The defendants responded by filing a motion to dismiss these claims on the grounds that the plaintiff had failed to state a claim and, alternatively, that they were entitled to qualified immunity.

The court began its review by noting that the vast majority of such Fourth Amendment cases involved the conduct of police officers toward persons they had arrested or otherwise detained. However, the court noted that Fourth Amendment protections do extend to the actions by other government officials, such as in the landmark case of Michigan v. Tyler, 436 U.S. 499 (1978), which held that the Fourth Amendment applies to firefighters investigating the cause of a fire. However, the court observed that there were no cases of applying the Fourth Amendment to responders coming to the aid of an unconscious individual as a result of a 911 call by a family member.

The court said that the decision in this case must then turn on the specific purpose and the particular nature of the conduct alleged in the complaint. Since the Fourth Amendment deals with, among other things, searches and seizures, the court was required to determine whether a seizure had occurred within the meaning of the Fourth Amendment. (Do not confuse the Fourth Amendment seizure being discussed by the court with the epileptic seizure experienced by Becerra).

The court said that a seizure, as defined in other cases, involved an intentional interference with a person's liberty by physical force or a show of authority that would cause a reasonable person consciously to submit. In other words, a seizure occurs when the liberty of a citizen has been restrained by means of physical force or show of authority. One's liberty is restrained, for instance, when a reasonable person would not feel free to walk away and ignore a police officer's request. In Becerra's case, the plaintiff did not allege any of these components in the complaint, nor is it likely that she could do so since Becerra was unconscious at the time of his encounter with the defendants and therefore could not perceive any restraint on his liberty or otherwise feel compelled to submit to a governmental show of force. Finally, where the purpose is to render solicited aid in an emergency rather than to enforce the law, punish, deter or incarcerate, there is no federal case authority creating a constitutional liability for the negligence, deliberate indifference and incompetence alleged in this case.

The plaintiff relied on a New York case, Green v. City of New York, 465 F.3d 65 (2d Cir. 2006), where a mute individual who could communicate by blinking his eyes and using a computer was brought to the hospital by emergency medical workers even though he communicated that he did not want to receive any further treatment. It was alleged that in the course of transporting the wheelchair-bound plaintiff, who suffered from Lou Gehrig's disease, to the hospital, the paramedics inflicted numerous bruises and lacerations on him by callously transporting him down several flights of stairs in his apartment building. The New York court held that this conduct did constitute a seizure of the person under the Fourth Amendment. Thus, the New York court denied the defendants' motion for qualified immunity. However, the Becerra court noted that the individual in the New York case was conscious and competent and objected to being taken into custody, a much different situation.

The court observed that there was case law similar to Green in the case of Champion v. Outlook Nashville, 380 F.3d 893 (6th Cir. 2004). In that case, the court held that the Fourth Amendment rights of Champion, a mute, autistic adult, were violated and the defendant police officers were not entitled to qualified immunity where the officers restrained the man in a manner similar to the restraint techniques allegedly used by the responders on Becerra. In Champion, the officers were summoned to a shopping-center parking lot by the man's caregiver after he became agitated and violent with her. The first police officer on the scene used pepper spray to subdue the man when he would not respond to her commands that he stop approaching her. When a second officer arrived, the two officers attempted to arrest Champion and take him into custody in a nearby store. A struggle ensued and Champion was eventually tackled and handcuffed after a third officer arrived at the scene. The three officers also bound Champion's ankles with a “hobble device” to prevent him from kicking them. During and after the handcuffing and hobbling, Champion was on the ground in a prone position and the officers applied their body weight to his back to control his movements. After several minutes, Champion began to vomit. He died shortly thereafter. The court held that Champion's arrest and restraint by police constituted a clearly established unreasonable seizure under the Fourth Amendment and denied the police officers' argument that they were entitled to qualified immunity.

The Becerra court then went on to say that the Champion case does not support the plaintiff's arguments in this case that the responders violated Becerra's Fourth Amendment rights. The responders did not unreasonably seize Becerra for the purpose of interfering with his liberty. They responded to his grandmother's call that he was experiencing an epileptic seizure and needed medical attention. They were not acting to enforce the law, deter or incarcerate. They were unlike the police officers who handcuffed and shackled Champion to arrest and incapacitate him. The cases are not the same because here the responders acted to provide medical aid to Becerra.

Since Becerra was neither communicative nor conscious and the responders were attempting to render aid, neither Green nor Champion applied. The plaintiff did not allege that either Becerra or his grandmother asked the responders to refrain from treating him. The court said that the plaintiff's excessive force claim thus looked like a medical malpractice claim rather than a Fourth Amendment or due-process violation. Assuming for the sake of argument that the restraint techniques used by the responders were excessive or medically unreasonable, the plaintiff may be entitled to recovery under the state law of negligence. But improper medical treatment by a government employee, standing alone, does not violate the Fourth or 14th Amendment.

The plaintiff also alleged that the responders unconstitutionally failed to render medical treatment to Becerra. The complaint argues that this failure violated the Fourth Amendment protection against unreasonable seizure and the 14th Amendment guarantee of substantive due process. In reviewing this claim, the court noted that, generally, it is not a constitutional violation for a state actor to render incompetent medical advice or fail to rescue those in need. There are, however, two exceptions to this rule. The first is the custody exception and the second is the state-created danger exception.

The custody exception imposes on state officials a “constitutional duty to provide adequate medical care to incarcerated prisoners … and those under similar restraint of personal liberty.” The court cited a Sixth Circuit case which held that a constitutional duty was not triggered where paramedics placed an individual wounded by a gunshot into their ambulance and began transporting him to the hospital. In that case, the Sixth Circuit Court held that moving an unconscious patient into an ambulance did not involve taking custody of the patient; the concept of custody does not extend that far. The court said that the facts in the present case similarly fail to allege that Becerra was taken into custody. He was restrained while he was unconscious, and the responders' actions were undertaken in an effort to render medical treatment. The court said that this is easily distinguishable from the archetypical custody exception case where jail or prison officials fail to provide medical treatment to an incarcerated individual.

The court then considered the state-created danger exception. It noted that this exception applies where the state causes or greatly increases the risk of harm to its residents without due process of law through its own affirmative acts. To establish liability under this theory, a plaintiff might show:

1. Affirmative acts by the state that “create or increase the risk that an individual will be exposed to private acts of violence.”

2. That the state's actions placed the victim “specifically at risk, as distinguished from a risk that affects the public at large.”

3. That the state knew or “clearly should have known that its actions specifically endangered an individual.”

The court said that this exception does not apply here because the responders' actions did not expose Becerra to private acts of violence as required by the first prong. The court saw no basis at all in this case on which the plaintiff could recover for a federal constitutional tort and accordingly it held that the responders were entitled to qualified immunity.

Conclusions to ponder from this case include:

• Qualified immunity from constitutional violations does not mean no lawsuit or no recovery. There still can be a negligence claim.
• Bystanders often can misunderstand what is happening in an emergency setting. Responders must document what they did and why they did it.
• Following the training and standard operating procedures is always a good idea, and provides an excellent starting point for defense against claims like the one in this case.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He is legal counsel for the Wisconsin State Firefighters Association and the National Volunteer Fire Council. Stittleburg is also currently the chairman of the NVFC and a director of the National Fallen Firefighters Foundation. He is the secretary of the National Fire Protection Association and a member of the NFPA Occupational Safety and Health Technical Committee that drafted NFPA 1582.