explaining the role of peace officers as including “preventing violence and restoring order, not simply rendering first aid to casualties”
How later courts described this case
- explaining the role of peace officers as including “preventing violence and restoring order, not simply rendering first aid to casualties”
- explaining that legal claims or arguments that have not been briefed before this Court will not be addressed
- determining, for purposes of state sovereign immunity, that an EMT responding to an official call had the authority to decide whether the plaintiff’s medical condition made it necessary or appropriate to transport him to the hospital in the ambulance
Written by the judges who cited it.
The opinion
Case: 18-14142 Date Filed: 08/29/2019 Page: 1 of 37
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14142
Non-Argument Calendar
________________________
D.C. Docket No. 3:17-cv-00016-TCB
KIMBERLY ANNETTE ELLISON,
Plaintiff-Appellant,
versus
KENNETH WARREN HOBBS,
MICHAEL D. CONDIT,
Individually,
PATRICIA S. AYERS,
Individually,
BRANDON HOWARD,
Individually,
ERIC GASAWAY,
Individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 29, 2019)
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Before WILLIAM PRYOR, GRANT and HULL, Circuit Judges.
PER CURIAM:
In this action brought under 42 U.S.C. § 1983, Plaintiff Kimberly Ellison
appeals the district court’s grant of summary judgment in favor of five defendants:
(1) Eric Gasaway, a paramedic, and Brandon Howard, an emergency medical
technician (“EMT”), both with the Coweta County Fire Department, and
(2) Officer Kenneth Hobbs, Officer Michael Condit, and Sergeant Patricia Ayers of
the Newnan Police Department. Plaintiff Ellison’s § 1983 action stems from the
defendants’ response to a 911 medical emergency call from Ellison’s neighbor for
Ellison, who was diagnosed with bipolar disorder and was experiencing a manic
episode, and the defendants’ transportation of Ellison to the hospital. The entire
series of events occurred on June 16, 2015 and were captured on the 911 call audio
recording and videos from the body cameras worn by the three police officers.
The district court concluded that the defendants were entitled to qualified
immunity on Ellison’s claims that they unlawfully seized her and deprived her of
liberty without due process of law in violation of the Fourth and Fourteenth
Amendments. After careful consideration and review of the record, including the
audio and video recordings, we affirm the district court’s grant of summary
judgment in favor of all defendants.
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I. FACTUAL BACKGROUND
A. The June 16, 2015 Incident
As background, in 2004, Ellison was diagnosed with bipolar disorder and
was involuntarily hospitalized for an extended period for mental health treatment
due to a manic episode. Ellison described her symptoms before that involuntary
hospitalization. Ellison had not slept for several days and was having racing
thoughts where “there is no sense” because the mental illness “takes over your
brain.” Her symptoms slowly escalated in the days before her hospitalization.
On June 12, 2015, Ellison began to experience manic behavior, which was
triggered by her prolonged visit at the Coweta County jail to see a client.1 After
leaving the county jail, Ellison began to experience “the same panic” and “the
same sleepless nights and the same racing thoughts” that triggered her involuntary
hospitalization in 2004.
By the evening of June 15, 2015, Ellison was experiencing symptoms which
caused her sister, Dawn Revere, concern regarding Ellison’s mental state.
Ellison’s symptoms included not sleeping for several days, “talking irrationally,”
and having racing thoughts making it “hard for her to stay on topic.” Revere was
worried that “either [Ellison] hadn’t taken [her medication] or that it wasn’t
working properly.”
1
Ellison is an attorney who has been licensed to practice law in Georgia since 2004.
3
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Over the course of the evening, and into the early morning hours of June 16,
2015, Ellison visited her neighbors multiple times. Specifically around 8:00 p.m.
on June 15, Ellison went to Adrienne Wiggins’s apartment, communicated in an
irrational and incoherent manner, and advised Wiggins that she was having “racing
thoughts.” At this point, Ellison was experiencing elevated blood pressure and
pulse, chest pains, shortness of breath, and a loss of balance which caused her to
“lose [her] footing and [her] balance and end up on the floor.” After Wiggins
escorted Ellison back to her apartment, Ellison continued to return to Wiggins’s
apartment several more times. Ellison also sent Wiggins a text message
acknowledging that she needed to go to the hospital for treatment.
Wiggins already knew about Ellison’s mental health history and bipolar
disorder diagnosis. Wiggins believed that Ellison was experiencing a manic
breakdown and that there were issues perhaps with Ellison’s medications or her
compliance with taking them. Wiggins contacted Revere, Ellison’s sister, about
her concern for Ellison’s condition, and they discussed plans to take Ellison to a
doctor for evaluation and/or treatment on the following morning.
Around 1:00 a.m. on June 16, Ellison woke up another neighbor, Rex Payne,
by sending him approximately 40 text messages, and then knocking on his
apartment door, asking that he accompany her to her apartment. Ellison told Payne
that “she may get to the point that she might need some help,” that he may need “to
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take her to the doctor later if she got too manic,” and “asked [Payne] to take her car
keys.” Payne and Ellison talked for awhile, and Payne left when Ellison seemed to
calm down.
Around 2:00 a.m., Ellison went to Wiggins’s apartment again and began
aggressively and loudly banging on her door and screaming and yelling in the
hallway. Wiggins believed that Ellison was no longer coherent and lucid.
Around 3:30 a.m., Ellison knocked on the door of a third neighbor, Roy
Brown, and told him that something was wrong. Brown explained that, “[a]t first,
Ellison seemed panicked, and [Brown] thought that she had been attacked or
someone had hurt her.”
Ellison’s irrational and manic speech and behavior in the early morning
hours of June 16 was not normal behavior for her, and her neighbors were
concerned. Ellison admitted that “[n]obody had ever seen me like this before.”
Ellison tried to control her bipolar symptoms with meditation and other calming
techniques. Brown and Payne stayed with Ellison in her apartment and talked
about taking Ellison to the hospital.
Meanwhile, due to Ellison’s behavior, Wiggins attempted to contact
Ellison’s sister, Revere, on at least eight different occasions to figure out how to
safely transport Ellison to a hospital for immediate mental health treatment.
Wiggins, however, was unable to reach Revere. Although Wiggins called the
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apartment complex’s courtesy officer for assistance in transporting Ellison to a
hospital, the courtesy officer suggested that she call 911.
B. Neighbor’s 911 Call at 4:30 A.M.
Around 4:30 a.m., Wiggins called 911 requesting emergency medical
services for Ellison. In the 911 call recording, Wiggins stated that she was
concerned about Ellison’s mental condition, as Ellison was bipolar and having a
“manic breakdown.” Wiggins requested an ambulance. Wiggins told the 911
dispatcher that she and Ellison’s sister had intended to take Ellison to the doctor
later that morning when the doctor’s office was open, but she did not think they
could wait any longer. Wiggins stated that Ellison was “not going to make it until
the morning, she’s incoherent, she’s having racing thoughts, nothing she’s saying
is making sense.”
Wiggins told the 911 dispatcher that she thought Ellison was “becoming
combative” and that Ellison needed to go to the hospital and “to be medicated
before this escalates into something.” Wiggins explained that she “was not sure if
[Ellison’s] medicines are off, but she has been having a couple of rough days.”
“She’s been trying to control her behavior herself, but she’s now at a point where
she’s not really lucid, she’s [engaging in] repetitive behavior, [and] she’s having
racing thoughts.” Wiggins stated that Ellison “insists on her pulse being taken . . .
I’ve been taking her pulse . . . I don’t think she’s ill, but she’s becoming more and
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more irrational.” Wiggins advised that Ellison “is trying to do yoga and meditate
this away.”
The 911 dispatcher asked if Ellison had harmed herself, and Wiggins
responded, “No, but she’s beginning to say that she may hit other people and
someone may have to hit her . . . so she’s starting to say things like that, and that’s
why I’m calling . . . because she may hit people, she may throw things . . . she may
become combative, and that’s why I’m calling before this escalates and she just is
combative.” Wiggins confirmed that Ellison had not harmed herself or anyone else
at that point though. Wiggins reported that Ellison did not have access to any
weapons in the house, and that Ellison was not under the influence of any illegal
drugs or alcohol.
The 911 dispatcher sent an ambulance and the police to respond to the call.
C. Response to 911 Call
Around 4:37 a.m., Officer Hobbs was the first to arrive and met Wiggins
outside of the apartment building’s entrance. Wiggins told Officer Hobbs much of
the same information about Ellison that she told the 911 dispatcher. Wiggins
explained to Officer Hobbs that Ellison was bipolar, “slowly spiraling,” and
Wiggins did not “know if [Ellison’s] medicines were off.” Wiggins stated that she
“believed that [Ellison] took her medicine [on June 15].” Wiggins said she had a
plan to take Ellison to the doctor in the morning but did not think Ellison could
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wait until then because “she [was] not rational” and she was starting to “say things
like I might hit people, I might hurt somebody.” Officer Hobbs asked Wiggins
how Ellison would feel about the police being present, and Wiggins responded that
Ellison “may or may not be combative.” Wiggins explained that Ellison needed to
go to the hospital.
Officer Condit arrived around 4:38 a.m. and was briefed on the situation.
Officer Hobbs followed Wiggins inside the apartment building, while Officer
Condit waited outside for the emergency medical personnel. While on the way to
Ellison’s apartment, Officer Hobbs and Wiggins met neighbor Brown, who stated
that he believed that Ellison needed to go to the hospital. Brown accompanied
Officer Hobbs and Wiggins to Ellison’s apartment.
Around 4:39 a.m., Paramedic Gasaway and EMT Howard arrived, and
Officer Condit gave them an overview of the situation. Officer Condit explained
that Ellison suffers from some type of anxiety and is on medication, but it is not
working, and that her neighbor called 911 because Ellison could not control her
symptoms. Paramedic Gasaway, EMT Howard, and Officer Condit then walked
down the hallway to Ellison’s apartment.
D. Interaction with Ellison
When Officer Hobbs and neighbors Wiggins and Brown arrived at Ellison’s
apartment, the door was partially open. Brown opened the apartment door further,
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and Ellison was standing inside the apartment’s entryway with her neighbor Payne.
Officer Hobbs entered Ellison’s apartment first, while Officer Condit, Paramedic
Gasaway, and EMT Howard stood outside the front door in the hallway.
Ellison greeted Officer Hobbs warmly, said she wanted to hug him, and gave
him a hug. Ellison invited Officer Hobbs into her apartment and stated that she
would tell him her medical history and get her medical records.
At the time, Ellison was in a manic state of mind, exhibiting racing,
rambling, and disjointed thought patterns, excessive and rapid non-stop
talkativeness, and hyperactivity, which indicated that she was suffering a manic
episode.
Ellison instructed everyone to listen and said, “I’m in charge because I’m
not crazy yet but I know where I’m headed because I broke down in 2004.”
Ellison stated that she had a “museum” in her apartment and her entire family was
coming to her apartment. Ellison agreed with Officer Hobbs that she needed to get
her medicines and her past medical records.
Ellison also advised Officer Hobbs that “I’m letting you in my house and I
know you need to protect me,” and that everyone should take notes because “in
probably two or three hours, I’m going to be mute.” Officer Hobbs then said they
should handle Ellison’s medicines first, and Ellison said “No . . . no, I’m in
control.” Officer Hobbs attempted to explain that it was Ellison’s idea, and Ellison
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said that she was in control and told him to shut up. Ellison then advised Officer
Hobbs that “I’m going to get combative. That’s why you’re here.”
Ellison walked out of her apartment door and spoke with neighbors Wiggins
and Brown in the hallway about her advance directive2 and appeared to be short of
breath. Officer Hobbs was inside the apartment and Paramedic Gasaway, EMT
Howard, and Officer Condit were standing in the hallway with Ellison, Brown, and
Wiggins. Officer Hobbs then asked Ellison, “how do you feel about going to the
hospital,” and she responded, “I want to go to the hospital.”
While Ellison continued to ramble, Paramedic Gasaway started to speak to
her. Ellison became agitated and screamed, “Stop!” three times at Paramedic
Gasaway. Ellison continued to ramble, stating that “[Payne] is in charge,
[Wiggins] is going to walk my dog, no, I’m sorry, everybody please be quiet, I
don’t have a television in here, and you need to stop laughing or whatever is going
on, and I’m in charge.”
At this point, Officer Hobbs was standing in the apartment’s doorway and
started to speak to Ellison again. In response, Ellison became irritated, pointed at
Officer Hobbs, and screamed at him to “Stop!” Officer Hobbs tried to get Ellison
to listen, saying, “you said you wanted to go to the hospital.”
2
See O.C.G.A. § 31-32-4 (2018) (written document appointing someone to make health
care decisions for an individual when that individual cannot make his or her own health care
decisions).
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Ellison yelled “Stop!” again and quickly pushed past Officer Hobbs to get
back into her apartment and moved towards neighbor Payne, who was further
inside the apartment. As Ellison moved past Officer Hobbs, he grabbed her arms
and restrained her from behind by her arms. While Ellison attempted to resist
Officer Hobbs’s grip, she yelled “advance directive, Monday night, 911, ICE, get
my bags!” and told her neighbors to pack her bags to go to the hospital. While
Ellison was resisting, Officer Hobbs and Ellison moved into the building’s
hallway. Officer Hobbs told Ellison to calm down. Due to Officer Hobbs’s grip
on Ellison’s arms and the sleeves of her bathrobe, one of Ellison’s breasts was
briefly exposed, but EMT Howard covered her back up a few seconds later.
Ellison then instructed Officer Hobbs to let her go, which he did, and she calmed
down.
Ellison walked back into her apartment with Officer Hobbs, Paramedic
Gasaway, EMT Howard, and her neighbors following her. After about 30 seconds,
Officer Hobbs walked out of Ellison’s apartment into the hallway, and Paramedic
Gasaway and EMT Howard followed shortly thereafter. While in the hallway,
Officer Hobbs asked Paramedic Gasaway what he wanted to do. In response,
Paramedic Gasaway explained “we [have] got to take her, that’s all there is to it.”
Ellison walked to her apartment door and told the officers and emergency
medical personnel to “wait a minute, wait a minute, monitor okay, wait just a
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second.” She then slammed and locked the door with Officer Hobbs, Officer
Condit, Paramedic Gasaway, and EMT Howard outside in the hallway. None of
the defendants attempted to force their way into Ellison’s apartment while her door
was closed.
About one minute later, neighbor Wiggins exited Ellison’s apartment,
leaving the apartment door slightly ajar. Neighbor Payne then exited the apartment
into the hallway and explained that Ellison was trying to get dressed. Officer
Hobbs asked Payne whether he thought Ellison would go willingly, and Payne
stated that he did not know because she was getting mad at him when he tried to
convince her to go willingly to the hospital. Payne went back into Ellison’s
apartment and left the door cracked open.
Outside in the building’s hallway, neighbor Wiggins discussed with the
group her original plan to drive Ellison to the doctor’s office in the morning. The
group agreed that it was too risky for Wiggins to drive Ellison in her car given
Ellison’s unpredictable behavior. Paramedic Gasaway asked Wiggins additional
questions about Ellison’s medication, and Wiggins explained that Ellison does take
her medication and it works.
After several minutes passed, Officer Hobbs pushed open the slightly ajar
door with his hand while he stood in the hallway. Officer Hobbs spoke to Ellison
saying “I’m doing what you told me to do” by standing out in the hallway. Ellison
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then waved Officer Hobbs into the apartment, stating “you can come in, leave the
others out.” She told Officer Hobbs that it would be nice “if you would stay in
here and we learn to trust each other.” Subsequently, Ellison also allowed
Paramedic Gasaway inside her apartment after Officer Hobbs explained that
Paramedic Gasaway was there to help take her pulse. Ellison explained that “I
haven’t slept since [June] 11, and I’m manic, and I know I am.” She showed
Paramedic Gasaway her medications while she asked neighbor Brown if he was
packing her bag for the hospital.
Around 4:58 a.m., Sergeant Ayers arrived, and Officer Condit met her
outside of the building and briefed her on the situation. He told Sergeant Ayers
that Ellison was “bipolar and slowly escalating to a combative state, [the
emergency medical personnel] ha[ve] already said they are going to take her, she
has to go,” and that the emergency medical personnel had prepared soft restraints
to take her to the hospital.
At the apartment, Ellison greeted Sergeant Ayers warmly and asked about
her history in law enforcement. EMT Howard entered the apartment with Sergeant
Ayers, and Officer Condit stood at the apartment’s doorway. Ellison said “Hi!
How’s everyone doing, welcome, tell me what your strengths are and introduce
yourself in just a minute.” Paramedic Gasaway asked Ellison, “are you going to go
to the hospital with us,” and Ellison responded, “no, I’m making my list.” The list
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consisted of various passwords, telephone numbers, and other directions to her
neighbors to prepare for hospitalization.
Ellison continued to walk around her apartment talking in a disconnected
manner about different topics. Sergeant Ayers asked Paramedic Gasaway what
was going on. He replied, “We’re gonna have to forcibly take her. That’s all there
is to it.” EMT Howard prepared the soft restraints.
Ellison then sat down on the couch. Ellison said she needed everyone to be
quiet, but she kept talking. She switched topics again, calling herself “the Queen,”
and stating that no one could talk for ten minutes. She hopped up from the couch
as Paramedic Gasaway attempted to pack her medications. Ellison continued
talking, said “Damn!” and stated that she does not cuss unless she is manic. She
began discussing her boyfriend, and Sergeant Ayers attempted to speak with her.
In response, Ellison jumped and screamed at Sergeant Ayers “Stop! Stop! Stop!”
She began giving instructions for the care of her dog.
Ellison sat back down on the couch. After Paramedic Gasaway and EMT
Howard prepared the soft restraints, Sergeant Ayers said to them, “Do what you
got to do.” Paramedic Gasaway and EMT Howard approached Ellison and said,
“It’s time for us to go to the hospital” and reached for her arms. As Paramedic
Gasaway and EMT Howard reached for her, Ellison yelled “Stop!” and began
flailing her arms and legs. When Paramedic Gasaway and EMT Howard placed
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Ellison’s hands in soft restraints, Ellison screamed with her legs open, and then
Officer Hobbs kneeled down in front of Ellison to keep her legs together and
prevent her from exposing herself. Ellison yelled for someone to call her dad and
then told Paramedic Gasaway and EMT Howard, “I’m calm, I’m calm” and asked
them to “take my pulse, take my pulse.”
Ellison became agitated again and screamed several times for Payne. She
stated, “I’m gonna punch somebody in a minute.” The officers responded, “No,
you’re not.” Ellison said that she was talking out her present feelings so that they
knew how she was feeling.
Ellison stated that she understood that she might be under arrest, but the
officers reassured her that she was not under arrest, that they were there to help,
and that she was going to the hospital. Paramedic Gasaway and EMT Howard told
Ellison that they were just taking her to the ambulance. She replied, “Okay.
Okay.” Ellison began to calm down, stating that she wanted to be quiet, but then
she suddenly resumed yelling and screaming and reclined back on the couch.
Sergeant Ayers said “Let’s get her out of here ASAP.”
Paramedic Gasaway and EMT Howard walked Ellison out of her apartment.
Ellison walked out under her own power with Paramedic Gasaway and EMT
Howard on each side of her holding on to the soft restraints. At the apartment’s
doorway, Ellison yelled about putting on shoes, and Paramedic Gasaway helped
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her put shoes on. She also said that she needed to get dressed. Paramedic
Gasaway told her that she had been given an opportunity to get dressed, so Ellison
instructed one of her neighbors to pack her bag.
When Ellison was in the building’s hallway, she began yelling and
screaming again. Ellison discussed the possibility that she missed her medicine,
stating that she needed to take her medicine at 8:00, and Paramedic Gasaway said
he was bringing her medicine. Paramedic Gasaway and EMT Howard walked
Ellison outside and helped her climb into the ambulance. Once she got to the
stretcher, she unbuckled the straps on her own and laid down, stating “I know how
to get in here, so I’m going to help you, and I’m going to lay down here.”
When she laid down in the stretcher, Ellison stated that she needed to take
her medicine at 8:00, but Officer Condit informed her that it was only 4:30 in the
morning. Ellison asked for her medicine, stating “I need to take it because it’ll
knock me out, and it’ll knock me on my ass, and I need to do that.” Officer Condit
told her that all would be taken care of when she arrived at the hospital. Paramedic
Gasaway and EMT Howard buckled Ellison into the stretcher.
Around 5:18 a.m., Paramedic Gasaway and EMT Howard transported
Ellison to Piedmont Newnan Hospital. They assessed Ellison’s vitals prior to
transport. Ellison’s blood pressure was dangerously high, reading 205/119, and
her pulse was 120 bpm.
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Paramedic Gasaway, who was responsible for care at the scene, explained
his decision to restrain and transport Ellison to the hospital. Gasaway stated that,
as an experienced paramedic, he knew “that a sudden onset of erratic behavior or
altered mental status can have a variety of underlying medical causes” and, after
observing Ellison, he concluded that she “needed to be seen by a doctor.”
Gasaway further determined “based upon [his] observations of [Ellison’s]
behavior, her physical condition, her altered state of consciousness, the information
provided by the neighbors and [his] professional judgment and experience, . . . that
she was not able to make informed decisions regarding her health,” “understand
the nature and severity of her potential disease process,” or “understand the risks of
refusing care,” and she “did not demonstrate adequate medical decision-making
capacity, thereby providing implied consent.” Gasaway also believed that “Ellison
was a potential danger to herself and others” because of “her erratic, uncontrolled
violent verbal outbursts and unpredictable behavior” and, therefore, “applied soft
restraints to her wrists for her safety, our safety and the safety of others present.”
E. Piedmont Newnan Hospital
Once at Piedmont Newnan Hospital, at around 5:26 a.m., Paramedic
Gasaway and EMT Howard transferred Ellison’s care to the hospital staff. At the
hospital, Ellison continued her manic behavior, including yelling and screaming,
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banging on windows and doors, and attempting to leave. She told the hospital staff
that her “dad will bring [a] gun and take care of things.”
Dr. Gottfrid Karlsson saw Ellison in the emergency room. Around 6:42
a.m., Dr. Karlsson determined that Ellison needed to be admitted involuntarily and
executed a Form 1013 order for psychiatric evaluation. Dr. Karlsson authorized
Ellison’s transport to Summit Ridge Hospital, an emergency receiving facility,
confirming that he had “personally examined Kimberly Ellison on 6/16, 2015 at
6:42 a.m.” At the time of his evaluation, Dr. Karlsson concluded that: (1) “[t]his
[i]ndividual appears to be mentally ill”; (2) his evaluation was based on his
personal observations of her “[e]xpanded mood, pressured speech, disorganized
speech”; and (3) she “[p]resents an imminently life endangering crisis to self
because []she is unable to care for []her own health and safety.”
F. Summit Ridge Hospital
On June 16, Ellison was transferred by ambulance from Piedmont Newnan
Hospital to Summit Ridge Hospital. That same day, Ellison executed a “Notice of
Involuntary Admission and Right to Hearing,” acknowledging her right to petition
for a writ of habeas corpus if she believed she was being held illegally.
On June 17, Ellison underwent a psychiatric evaluation at Summit Ridge
Hospital. Based on that evaluation, Ellison’s physician made the medical
determination to admit Ellison for further treatment for purposes of “safety and
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stabilization” for five to seven days. On June 17, Ellison executed a Form 1012
requesting that she be transferred “from involuntary status to voluntary status,”
which her physician approved. Ellison remained at Summit Ridge Hospital until
her discharge on June 23, 2015.
II. PROCEDURAL HISTORY
In February 2017, Ellison brought this § 1983 action against these five
defendants in their individual capacities: Paramedic Gasaway, EMT Howard,
Officer Hobbs, Officer Condit, and Sergeant Ayers. In relevant part, Ellison
alleged the defendants violated (1) her Fourth Amendment right to be free from
unreasonable seizure when they involuntarily restrained her and transported her to
the hospital without probable cause and (2) her Fourteenth Amendment right to be
free from liberty deprivations without due process of law because they failed to
follow state procedures for the involuntary seizure of mentally ill persons.
The defendants later moved for summary judgment on these federal claims.
Ellison cross-moved for partial summary judgment against the defendants on her
Fourth Amendment unreasonable seizure claim.
The district court granted summary judgment in favor of the defendants on
all federal claims based on qualified immunity. Ellison timely appealed.3
3
In addition to the federal claims set forth above, Ellison also brought a federal claim
against Sergeant Ayers alone for violating her Fourth and Fourteenth Amendment rights by
failing to properly supervise Officers Hobbs and Condit and a separate claim against all
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III. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment based on
the defense of qualified immunity. May v. City of Nahunta, 846 F.3d 1320, 1327
(11th Cir. 2017). Summary judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). In making a determination
about summary judgment, “a court must view the evidence in the light most
favorable to the opposing party.” Tolan v. Cotton, 572 U.S. 650, 657, 134 S. Ct.
1861, 1866 (2014) (quotation marks omitted).
For the most part, the parties do not dispute the facts. Further, Ellison’s
interaction with the defendants was recorded on body cameras worn by the three
police officers, and Ellison agrees with the use of the 911 call audio and body
camera video recordings as authentic proof of the facts.
defendants for attorneys’ fees. As to these claims, the district court also granted summary
judgment in favor of the defendants. In her brief on appeal, Ellison does not provide any
argument regarding these federal claims. Therefore, they are considered abandoned and are not
addressed. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)
(explaining that legal claims or arguments that have not been briefed before this Court will not
be addressed).
Ellison also alleged state law claims against the defendants, and the district court declined
to exercise supplemental jurisdiction over them. Ellison’s brief does not address them, and
neither do we.
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IV. QUALIFIED IMMUNITY
The qualified immunity defense shields “government officials performing
discretionary functions . . . from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818,
102 S. Ct. 2727, 2738 (1982). Qualified immunity balances two important public
interests: “the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson v. Callahan, 555
U.S. 223, 231, 129 S. Ct. 808, 815 (2009).
A defendant claiming qualified immunity “must first prove that he acted
within the scope of his discretionary authority when the allegedly wrongful acts
occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). If he does so,
“the burden shifts to the plaintiff to show that qualified immunity is not
appropriate” because the defendant’s conduct violated a clearly established
constitutional right. Id.
V. DISCRETIONARY AUTHORITY
To determine whether the challenged actions were within the scope of the
defendant’s discretionary authority, courts ask ‘“whether the government employee
was (a) performing a legitimate job-related function (that is, pursuing a job-related
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goal), (b) through means that were within his power to utilize.’” Estate of
Cummings v. Davenport, 906 F.3d 934, 940 (11th Cir. 2018) (quoting Holloman
ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004)). “In applying
each prong of this test, we look to the general nature of the defendant’s action,
temporarily putting aside the fact that it may have been committed for an
unconstitutional purpose, in an unconstitutional manner, to an unconstitutional
extent, or under constitutionally inappropriate circumstances.” Id. (quotation
marks omitted). For instance, “in assessing whether a police officer may assert
qualified immunity against a Fourth Amendment claim, we do not ask whether he
has the right to engage in unconstitutional searches and seizures, but whether
engaging in searches in general is a part of his job-related powers and
responsibilities.” Holloman, 370 F.3d at 1266.
“After determining that an official is engaged in a legitimate job-related
function, it is then necessary to turn to the second prong of the test and determine
whether he is executing that job-related function—that is, pursuing his job-related
goals—in an authorized manner.” Id. “Each government employee is given only a
certain ‘arsenal’ of powers with which to accomplish [his] goals.” Id. at 1267.
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A. Paramedic and EMT
Ellison argues that Paramedic Gasaway and EMT Howard were not acting
within the scope of their authority when they involuntarily placed her in soft
restraints and transported her to Piedmont Newnan Hospital.
We disagree because Gasaway, as a certified paramedic, and Howard, as a
certified EMT, were authorized by state law to “render first aid and resuscitation
services,” which includes the authority to decide whether a person’s medical
condition warrants transport to a hospital. See O.C.G.A. §§ 31-11-53(a)(1),
31-11-54(a), and 31-11-55(1)(a) (authorizing medical services that may be
rendered by certified paramedics and EMTs); cf. Griesel v. Hamlin, 963 F.2d 338,
342 (11th Cir. 1992) (determining, for purposes of state sovereign immunity, that
an EMT responding to an official call had the authority to decide whether the
plaintiff’s medical condition made it necessary or appropriate to transport him to
the hospital in the ambulance).
Moreover, it was part of their jobs to determine if Ellison had adequate
medical decision making capacity to refuse transport to a hospital for emergency
medical care. Specifically, pursuant to state law and regulations, the Coweta
County Fire Department has adopted Standing Orders and Protocols (“SOPs”) for
its emergency medical personnel. See O.C.G.A. § 31-11-5(a); Ga. Comp. R. &
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Regs. § 511-9-2-.07(6)(h)(4). 4 The SOPs instruct that “all patients seeking 911
services be transported to the hospital for evaluation when medically necessary,”
but also provide that a patient may refuse transport of self “if they demonstrate
adequate medical decision making capacity.” Adequate medical decision making
capacity includes: (1) being able to make informed decisions regarding health and
(2) appearing lucid and not having impaired judgment because of a medical
condition. The SOPs contemplate justified uses of physical restraints—soft
restraints like those used here—in certain situations, such as when the patient is
unable to follow instructions and is at a high risk of injury or is a danger to self or
others. The SOPs emphasize that while they are guidelines for action, the clinical
“judgment of the providers[] on-scene remain sovereign,” which is consistent with
the Georgia regulations. See Ga. Comp. R. & Regs. § 511-9-2-.07(6)(i) (“Control
of patient care at the scene of an emergency shall be the responsibility of the
individual in attendance most appropriately trained and knowledgeable in
providing prehospital emergency care and transportation.”).
4
In O.C.G.A. § 31-11-5(a), the Georgia Department of Public Health has authority to
adopt rules and regulations for the protection of public health and standards for transporting
patients in ambulances by emergency medical providers. See O.C.G.A. § 31-11-5(a). In turn,
the Department has promulgated regulations, which provide that a “local medical director” shall
approve the local policies and procedures for emergency medical care, provided such policies are
not in conflict with the rules and regulations of the Department or other state statutes. See Ga.
Comp. R. & Regs. §§ 511-9-2-.07(6)(h)(4), (h)(5). Here, the Coweta County Fire Department
has adopted such policies, approved by the medical director. On appeal, Ellison does not
challenge the validity of the Fire Department’s SOPs.
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Ellison urges that her condition on June 16 was not a medical emergency
and that she remained “sufficiently lucid” to make a cogent transport decision such
that Paramedic Gasaway and EMT Howard were not authorized to involuntarily
transport her. Even assuming Ellison were correct about her mental state,
Paramedic Gasaway was nonetheless performing a legitimate, job-related function
when he exercised his discretion and clinical judgment, based on his experience
and knowledge as a trained paramedic, and determined that Ellison did not possess
adequate medical decision making capacity to make an informed decision to refuse
transport to the hospital. The decisions Paramedic Gasaway had to make here,
right or wrong, were part of his job-related powers and responsibilities. See
Holloman, 370 F.3d at 1266.
Even though they were performing a legitimate, job-related function, Ellison
also argues that Paramedic Gasaway and EMT Howard were not performing that
function through authorized means, which is the second prong of the discretionary
function test. Ellison alleges they failed to comply with the Georgia law governing
the involuntary seizure of mentally ill persons and their transportation to a “mental
health emergency receiving facility” for a “mental evaluation.”
Although Ellison cites O.C.G.A. §§ 37-3-41 and 37-3-42, these statutes
involve involuntary civil custody and involuntary treatment of a mentally ill patient
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at a “mental health emergency receiving facility.”5 The threshold problem for
Ellison is that Paramedic Gasaway and EMT Howard did not transport Ellison to a
“mental health emergency receiving facility” for involuntary mental health
treatment. Rather, they responded to a 911 medical emergency call and
transported Ellison to a hospital for emergency medical care. Notably too, it was a
physician at Piedmont Newnan Hospital who later placed Ellison in involuntary
civil custody for purposes of involuntary mental health evaluation and treatment
and had her transported to a “mental health emergency receiving facility,” Summit
Hospital. But Paramedic Gasaway and EMT Howard had nothing to do with this
decision. And it was well within their job duties to transport Ellison to the hospital
based on Paramedic Gasaway’s determination that she lacked adequate medical
decision making capacity.
Also, contrary to Ellison’s contentions, the use of soft restraints is a tool
available to Paramedic Gasaway and EMT Howard in performing their job-related
functions. See Davenport, 906 F.3d at 940. Thus, because Paramedic Gasaway’s
5
Under Georgia law, an individual may be placed into involuntary civil custody for
purposes of mental health evaluation and treatment in three circumstances: (1) where a physician
executes a certificate stating that he personally examined the person within the preceding 48
hours and found that, based upon observations set forth in the certificate, that person appears to
be a mentally ill person requiring involuntary treatment; (2) by a court order commanding any
peace officer to take such person into custody and deliver her for examination to the nearest
mental health emergency receiving facility or to a physician who has agreed to examine the
patient; and (3) where a peace officer observes (a) the person committing a penal offense, and
(b) the peace officer has probable cause for believing that the person is a mentally ill person
requiring involuntary treatment. See O.C.G.A. §§ 37-3-41, 37-3-42.
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and EMT Howard’s actions were not outside their “arsenal” of powers, they acted
within their discretionary authority. See Holloman, 370 F.3d at 1267.
B. Police Officers
We also reject Ellison’s argument that the three police officers’ actions were
outside the scope of their discretionary authority. Ellison contends that the officers
“aided and abetted” her seizure by the emergency medical personnel and thereby
violated the Georgia law and the Newnan Police Department’s procedures
regarding the involuntary seizure of mentally impaired persons. Ellison alleges the
police officers had no authority to take her into custody and transport her to the
hospital, as they did not observe her commit a crime.
Ellison’s claims against the officers also fail. First, each of the police
officers responded to Wiggins’s 911 call in their role as peace officers to assist
emergency medical personnel and maintain safety at the scene. This is a classic
police activity and well within the officers’ job responsibilities and discretionary
authority. See O.C.G.A. § 45-9-81(7) (defining a “law enforcement officer” as
having duties including the “protection of life” and the “preservation of public
order”); Brigham City v. Stuart, 547 U.S. 398, 406, 126 S. Ct. 1943, 1949 (2006)
(explaining the role of peace officers as including “preventing violence and
restoring order, not simply rendering first aid to casualties”).
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Second, the officers did not use any means while performing their
job-related functions that were not within their “arsenal” of powers. See
Holloman, 370 F.3d at 1267. Ellison was never under arrest or in police custody.
It was Paramedic Gasaway, not the officers, who decided that Ellison was too
impaired to make medical decisions and that it was medically necessary to
transport Ellison to Piedmont Newnan Hospital and to do so in soft restraints. The
officers did not place Ellison in the soft restraints, place her in the ambulance, or
transport her to the hospital.
VI. CLEARLY ESTABLISHED CONSTITUTIONAL RIGHT
Once we determine that a defendant was acting within his discretionary
authority at the time of the challenged conduct, the plaintiff must make two
showings to overcome a qualified immunity defense. See Griffin Indus., Inc. v.
Irvin, 496 F.3d 1189, 1199-1200 (11th Cir. 2007). First, she “must establish that
the defendant violated a constitutional right.” Id. at 1199. Second, she must show
the violated right “was clearly established.” Id. “Both elements of this test must
be satisfied for an official to lose qualified immunity, and this two-pronged
analysis may be done in whatever order is deemed appropriate for the case.”
Grider v. City of Auburn, 618 F.3d 1240, 1254 (11th Cir. 2010).
Regarding the clearly established prong, “[a] [g]overnment official’s
conduct violates clearly established law when, at the time of the challenged
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conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable
official would understand that what he is doing violates that right.’” Ashcroft v.
al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987)). In determining
whether a right is clearly established, this Court looks to “judicial decisions of the
United States Supreme Court, the United States Court of Appeals for the Eleventh
Circuit, and the highest court of the relevant state.” Griffin Indus., 496 F.3d at
1199 n.6.
The clearly established law must be “particularized” to the facts of the case.
Anderson, 483 U.S. at 640, 107 S. Ct. at 3039 (citation omitted). The ‘“salient
question’ . . . is whether the state of the law gave the defendants ‘fair warning’ that
their alleged conduct was unconstitutional.” Vaughan v. Cox, 343 F.3d 1323, 1332
(11th Cir. 2003) (quoting in part Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct.
2508, 2516 (2002)). “This is not to say that an official action is protected by
qualified immunity unless the very action in question has previously been held
unlawful, but it is to say that in the light of the pre-existing law the unlawfulness
must be apparent.” Anderson, 483 U.S. at 640, 107 S. Ct. at 3039. 6
6
Plaintiffs can demonstrate that the contours of the right were clearly established in three
ways. See Terrell v. Smith, 688 F.3d 1244, 1255-56 (11th Cir. 2012). “First, the plaintiffs may
show that a materially similar case has already been decided. Second, the plaintiffs can point to
a broader, clearly established principle that should control the novel facts of the situation.
Finally, the conduct involved in the case may so obviously violate the constitution that prior case
law is unnecessary.” Id. (citations, quotation marks, and alterations omitted). Ellison relies on
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A. Fourth Amendment
Ellison argues that defendants Paramedic Gasaway and EMT Howard
violated her clearly established Fourth Amendment rights by restraining and
involuntarily transporting her to the hospital without having probable cause to
believe that she posed a threat of harm to herself or others. She alleges that the
three defendant police officers aided and abetted that illegal restraint and transport.
The Fourth Amendment guarantees the right of persons to be free from
unreasonable seizures. U.S. Const. amend. IV. This Court has held that “[f]or
Fourth Amendment purposes, a seizure occurs when an officer, ‘by means of
physical force or show of authority, has in some way restrained the liberty of a
citizen.’” Roberts v. Spielman, 643 F.3d 899, 905 (11th Cir. 2011) (quoting Terry
v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).
Here, Ellison arguably gave mixed signals as to whether she wanted to go to
the hospital or not. Further, whether she went to a general hospital or a “mental
health emergency receiving facility,” Ellison contends she suffered a mental-health
seizure. For purposes of summary judgment, we will assume Ellison did not go to
the hospital voluntarily and was seized by defendants Paramedic Gasaway and
EMT Howard. The constitutional question thus becomes under what
only the first method to show that the defendants had fair warning and does not advance the
others on appeal, and, therefore, we do not address the second or third methods.
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circumstances can emergency medical personnel take a mentally ill person
involuntarily to a hospital.
This Court has held that “[i]n the context of a mental-health seizure, ‘[w]hen
an officer stops an individual to ascertain that person’s mental state . . . the Fourth
Amendment requires the officer to have probable cause to believe the person is
dangerous either to himself or to others.’” May, 846 F.3d at 1327-28 (quoting in
part Roberts, 643 F.3d at 905). ‘“[T]o be entitled to qualified immunity from a
Fourth Amendment claim, an officer need not have actual probable cause, but only
arguable probable cause’—that is, ‘the facts and circumstances must be such that
the officer reasonably could have believed that probable cause existed.’” Id. at
1328 (quoting Montoute v. Carr, 114 F.3d 181, 184 (11th Cir. 1997)).
The district court recited certain facts and found that the defendants had at
least arguable probable cause for Ellison’s seizure. The district court explained
that the defendants responded to a 911 call where a neighbor reported about
Ellison’s recent statements indicating a possibility that she would harm herself or
others and observed Ellison’s behavior when they arrived. While Ellison admits
that she was in a manic episode, she contends that there is a genuine issue of
material fact as to whether she would harm herself or others and thus the district
court erred in granting summary judgment on her claims.
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Ellison mainly relies on Roberts v. Spielman, 643 F.3d 899 (11th Cir. 2011),
but that decision does not help Ellison. In fact, Roberts held that the defendant in
that case did not violate the plaintiff’s Fourth Amendment rights. See id. at 905-
06. If anything, the particular facts in Ellison’s case establish an even stronger
probable cause basis for a valid mental-health seizure than Roberts. A deputy
sheriff in Roberts responded to a 911 call about a possible suicide attempt by the
plaintiff. Id. at 902-03. Upon arriving at the plaintiff’s home, the deputy was told
by the plaintiff’s former sister-in-law that she had been trying to contact the
plaintiff for over an hour, the plaintiff had a history of suicide attempts, and the
plaintiff was taking medication for bipolar disorder. Id. at 902. After ignoring the
deputy knocking on her door, the plaintiff was verbally abusive when he opened
her door, telling him to “get the f--- out of my house.” Id. The deputy grabbed the
plaintiff and briefly removed her from her house to explain to her that he was there
to perform a “welfare check.” Id. at 903. The deputy left the plaintiff’s property
shortly thereafter, after ensuring that the plaintiff had not attempted suicide and
was not suicidal. Id. at 903-04. In Roberts, the plaintiff argued that the deputy
should have left her property and not seized her at all when he saw that she was
alive. Id. at 905.
This Court determined that, under the particular factual circumstances the
deputy confronted in Roberts, the deputy’s conduct did not violate the Fourth
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Amendment because it was objectively reasonable for the deputy to believe that
the plaintiff may have been in need of immediate aid even though she was alive.
Id. In particular, the Court concluded that, in light of what the deputy had been
told and had observed, he “could reasonably have believed that [the plaintiff]
posed a danger to herself that justified his remaining inside the doorway of her
home for about five minutes and then, for safety reasons, briefly removing her
from the home while he tried to calm her down and determine her mental state.”
Id. at 906. Alternatively, the Court concluded that, even assuming a Fourth
Amendment violation, a reasonable officer in the deputy’s shoes would not have
known that his conduct was unlawful. Id.
Here, even considering Ellison’s mixed signals, the defendants nonetheless
had considerable and reasonable cause for concern. They not only received a 911
call from a neighbor but actually observed Ellison’s clear and serious medical
problems. Wiggins’s 911 call reported that Ellison was having a “manic
breakdown” and needed to go to the hospital. Wiggins credibly reported to the 911
dispatcher, and also to the defendants when they arrived, that she was concerned
that Ellison was going to become combative and that Ellison had expressed that
she may hurt someone. Upon the defendants’ arrival, Ellison was in a manic state
of mind, exhibiting racing, rambling, and disjointed thought patterns, excessive
and rapid non-stop talkativeness, and hyperactivity. In the defendants’ presence,
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Ellison expressed her own concern that she was going to get combative and “punch
somebody in a minute.” Based on the information provided by Wiggins and his
own on-scene observations of Ellison, professional experience, and clinical
judgment, Paramedic Gasaway determined that Ellison needed to be taken to the
hospital, she did not have adequate medical decision making capacity to refuse to
go to the hospital, and she needed to be restrained for her and others’ safety while
they escorted her into the ambulance.
Ultimately, we need not resolve the probable cause issue because, in any
event, Ellison has not identified any prior case, and we have found none, that
provided fair warning to the defendants that, under the particularized facts they
faced, their conduct violated Ellison’s Fourth Amendment rights. Ellison cites no
case where a court concluded that emergency medical personnel responding to a
911 emergency call for medical assistance violated the rights of a patient, who was
incapable of making an informed decision about her health, by restraining that
patient and transporting her to a general hospital for evaluation by a physician.7
Therefore, there is no clearly established law that would have put a reasonable
officer, paramedic, or EMT on notice that the actions the defendants took to
7
To the extent Ellison also relies on Boatright v. State, 761 S.E.2d 176 (Ga. Ct. App.
2014), to show that the right was clearly established, that decision is from the Court of Appeals
of Georgia, which is not the highest court of Georgia. See Griffin Indus., 496 F.3d at 1199 n.6.
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restrain and transport Ellison to the hospital violated Ellison’s Fourth Amendment
rights.8
Ellison’s other Fourth Amendment claim also fails and warrants only brief
discussion. First, the district court did not err in granting summary judgment on
Ellison’s claim that defendants made a warrantless entry or unlawfully extended
their lawful presence in her home. The undisputed summary judgment evidence
shows that Ellison consented to the defendants’ initial entry into her apartment.
Even assuming that Ellison revoked her consent to their presence when she closed
and locked the apartment door, leaving the defendants in the hallway, the
defendants had both probable cause to believe Ellison was in danger and exigent
8
Ellison also challenges that the manner in which she was seized was objectively
unreasonable under the circumstances and violated her Fourth Amendment rights. Specifically,
Ellison claims she was seized in an inappropriate manner because (1) when Officer Hobbs held
her from behind her breast was exposed while they were in the hallway, (2) her body was again
exposed when she was being placed in soft restraints, and (3) she was walked to the ambulance
in only a bathrobe and underwear. She asserts that it was clearly established at the time that
exposing a female’s body in such a manner was unlawful, citing Los Angeles Cty. v. Rettele, 550
U.S. 609, 127 S. Ct. 1989 (2007).
In Retelle, when executing a search warrant, officers entered a bedroom with guns drawn
and ordered a man and a woman out of their bed and to show their hands. 550 U.S. at 611, 127
S. Ct. at 1991. The individuals protested that they were not wearing clothes. Id. They both
stood up naked and were held at gunpoint for one to two minutes before they were permitted to
dress. Id. The Supreme Court held there was no violation of the individuals’ Fourth
Amendment rights due to the officers’ safety concerns, the short duration of their exposure, and
the need to secure the scene. Id. at 614-16, 127 S. Ct. at 1993-94. If the Supreme Court in
Retelle did not conclude that there was a Fourth Amendment violation, then Retelle could not
have clearly established that the defendants’ conduct here violated Ellison’s Fourth Amendment
rights. If anything, Ellison’s exposure was inadvertent, as well as more limited and brief.
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circumstances to justify their subsequent entry and continued presence.9 See id. at
905 (explaining that “[e]mergency situations involving endangerment to life fall
squarely within the exigent circumstances exception” and that “[w]hen officers
respond to an emergency, the probable cause element may be satisfied where
officers reasonably believe a person is in danger”). The emergency nature of the
situation and Ellison’s manic and unpredictable behavior and statements, which did
not dissipate during their encounter with her, made it reasonable for the defendants
to believe that she needed immediate assistance.
B. Fourteenth Amendment – Violation of State-Created Procedures
Ellison summarily argues that the defendants violated her right to due
process when they involuntarily transported her to the hospital without following
the prescribed state procedures for involuntary mental evaluation and treatment in
O.C.G.A. § 37-3-40 et seq. She contends that, as of June 16, 2015, it was clearly
established in the mental health context that depriving a mentally impaired person
of state-created procedural due process rights constituted a deprivation of that
person’s liberty interests under the Fourteenth Amendment.10
9
The record also shows that Ellison actually waved Officer Hobbs back into her
apartment but did also say leave the others outside. Ellison also allowed Paramedic Gasaway to
come in to take her pulse. In any event, the record contains ample evidence for the officers to
believe Ellison was in danger.
10
Ellison raises this issue for the first time in her reply brief. We ordinarily do not
address issues raised for the first time in a reply brief. See Big Top Koolers, Inc. v. Circus-Man
Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008) (“We decline to address an argument advanced
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Ellison’s due process claim fails because the defendants did not take Ellison
into custody in order to take her to a “mental health emergency receiving facility”
for involuntary mental health evaluation or treatment under O.C.G.A. §§ 37-3-41
or 37-3-42. Rather, the defendants responded to a 911 medical emergency call,
and Paramedic Gasaway determined that Ellison did not have adequate medical
decision making capacity and transported her to a hospital for medical care.
Therefore, none of the state-created procedural safeguards in O.C.G.A. §§ 37-3-41
and 37-3-42 for taking persons into involuntary civil custody for purposes of a
mental health evaluation or treatment were implicated by the defendants’ actions.
Furthermore, upon arrival at the hospital, a physician examined Ellison,
determined that she was in need of involuntary treatment, and executed the form
satisfying O.C.G.A. § 37-3-41.
VII. CONCLUSION
For all of these reasons, the district court properly granted summary
judgment in favor of Paramedic Gasaway, EMT Howard, Officer Hobbs, Officer
Condit, and Sergeant Ayers in their individual capacities on Ellison’s Fourth and
Fourteenth Amendment claims.
AFFIRMED.
by an appellant for the first time in a reply brief.”). Here, we exercise our discretion to address
Ellison’s due process argument because it fails in any event.
37