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Ninth Circuit Revives Suit Against CHP Officer Over Misdiagnosing Stroke as Intoxication
Opinion Says District Court Judge Wrongly Granted Summary Judgment on Immunity Grounds for Defendant Who Arrested Plaintiff Rather Than Calling for Ambulance, Drawing Dissent
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals held yesterday, in a 2-1 decision, that summary judgment was improperly awarded on immunity grounds in a case in which the plaintiff alleges that a California Highway Patrol officer violated his constitutional rights by arresting him for intoxication after a traffic accident rather than calling for an ambulance where the man was suffering not from drug use but from a stroke.
Three hours passed before the man, Steven D’Braunstein, was taken to the hospital. D’Braunstein was rendered mentally incompetent after the incident and his conservator alleges that the delay caused greater lasting damage from the stroke, in part due to an inability to receive intravenous tissue plasminogen activator treatment, which must be administered shortly after the onset of symptoms.
In an opinion written by Circuit Judge Daniel A. Bress, and joined in by Circuit Judge Salvador Mendoza Jr., the court said:
“We hold that construing the facts in the light most favorable to D’Braunstein, a reasonable jury could find that Officer [Samantha Diaz-Durazo] violated D’Braunstein’s constitutional rights by failing to summon him prompt medical care, considering the serious nature of the collision and his evident symptoms of distress. We further hold that a jury could find that Durazo’s apparent belief that D’Braunstein was not in need of medical attention was based on an unreasonable mistake of fact or judgment. If that is true, Durazo’s failure to summon prompt medical care was a violation of clearly established law, disentitling her to qualified immunity.”
Circuit Judge Kenneth K. Lee dissented.
Traffic Collision
On June 1, 2018, at approximately 4:50 p.m., Durazo was called to the scene of a traffic collision on a freeway onramp in Costa Mesa, where a black Audi had been totaled after colliding with a concrete wall. Standing next to the vehicle was then-56-year-old D’Braunstein.
D’Braunstein was slurring his speech, sweating profusely, and acting confused. He failed field sobriety tests, but did not smell of alcohol and no evidence of drug use was found in the Audi.
Durazo arrested him but a nurse at the jail denied him admittance, directing Durazo to take him to a hospital. At approximately 8:40 p.m., he was admitted to the Orange County Global Medical Center where he was diagnosed with having experienced a stroke.
In February 2020, D’Braunstein’s conservator filed the operative complaint, on D’Braunstein’s behalf, against Durazo and the California Highway Patrol, asserting, among other claims, a Fourth Amendment violation based on the delay of necessary medical care to a person in custody. In the complaint, he alleges under 42 U.S.C. §1983:
“Defendant[] Durazo…failed to conduct any health screening, failed to properly evaluate Mr. D’Braunstein, and failed to immediately summon medical staff to diagnose, and/or treat Mr. D’Braunstein, and failed to timely and appropriately respond to Mr. D’Braunstein’s obvious signs of medical distress during the entirety of the time that he was placed under arrest….Mr. D’Braunstein finally received medical attention after an extended period of time…. However, by that time, Mr. D’Braunstein had suffered irreversible brain damage.”
Senior District Court Judge James Selna of the Central District of California granted a defense motion for summary judgment, finding that Durazo failed to provide reasonable medical care to D’Braunstein in violation of the Fourth Amendment but concluding that the officer “is entitled to qualified immunity because no precedential authority or consensus of persuasive authority put her on notice that her conduct violated” the Constitution.
Selna declined to exercise supplemental jurisdiction over state-law causes of action.
Constitutional Violation
Bress noted that doctrine of qualified immunity protects police officers from liability under §1983 unless their actions violated a constitutional right and the unlawfulness of their conduct was “clearly established” at the time of the incident.
Turning to the first prong of the analysis, he said that those detained by the police in the course of an arrest are entitled, under the Fourth Amendment’s prohibition against excessive force, to objectively reasonable medical care. He remarked:
“We agree with the district court that, construing the facts in the light most favorable to D’Braunstein, a reasonable jury could find that Durazo’s failure to summon prompt medical treatment for D’Braunstein was objectively unreasonable, and that Durazo acted with reckless disregard for D’Braunstein’s safety and well-being.”
He continued:
“Durazo’s subjective belief that D’Braunstein was on drugs does not change matters. Durazo knew there was no physical evidence of drug or alcohol use. But regardless, Durazo’s subjective belief about possible drug use does not alter the fact that D’Braunstein had just emerged from a violent car crash and was exhibiting physical and cognitive abnormalities.”
Clearly Established
Saying that a violation is “clearly established” if any reasonable officer would have understood that the course of conduct violates the law, Bress rejected Durazo’s assertion that there is no applicable case law that would have put her on notice, under the circumstances presented to her, that she had a duty to seek prompt medical care.
He opined:
“This argument is misplaced. In the context of a §1983 claim about the failure to summon timely medical attention, case law cannot tell us whether a certain set of facts suggests a legitimate medical emergency. That is not a question of decisional law, but one of factual perception and on-the-ground judgment.”
Acknowledging that “[t]his does not mean qualified immunity is never available to those who make these kinds of determinations in error,” he declared that “[b]ut if the law is otherwise clearly established, an officer is not entitled to qualified immunity for a mistake of fact or judgment that is itself unreasonable.”
Bress commented:
“We do not ‘demand’ that officers make ‘difficult medical decisions,’ as the dissent claims. This case instead involves an officer’s basic failure to summon any prompt medical care for someone who had emerged from a major vehicle accident and was exhibiting obvious signs of physical distress and disorientation. Nothing in our decision today imposes any greater obligation—an obligation that the law already clearly imposed if the jury finds the facts in D’Braunstein’s favor.”
Lee’s View
Lee wrote:
“Officer Durazo is not a doctor or a nurse. There were no visible signs requiring emergency medical help—profuse bleeding, broken bones, labored breathing, or unconsciousness. Instead, she saw signs suggesting drug use and missed that some of those symptoms could also reflect a stroke. At the time, there was no clearly established law requiring an officer to distinguish between symptoms and then call for emergency medical assistance when there are no obvious signs of a major physical injury. We ask too much from law enforcement officers if we demand that they make difficult medical decisions at crime scenes or accidents. I thus respectfully dissent from the majority’s decision denying qualified immunity.”
He conceded that “officers must provide reasonable medical care, including calling for emergency help if necessary,” but said that “I do not believe that it was clearly established that an officer must distinguish between various symptoms and then call for emergency medical help when there are no outward signs of a serious medical injury.”
The jurist continued:
“Officer Durazo made the wrong decision. But qualified immunity protects ‘all but the plainly incompetent.’…And I cannot say Officer Durazo was plainly incompetent, even if her mistake ended with severe consequences for D’Braunstein.”
The case is D’Braunstein v. California Highway Patrol, 22-55237.
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