# Parrish v. Cleveland

> Court of Appeals for the Fourth Circuit · June 18, 2004 · 372 F.3d 294

URL: https://www.frixlaw.com/law-library/cases/9497084

## Case

- **Full name:** Joseph R. PARRISH, Personal Representative of Tony Marcel LEE, Deceased, Plaintiff-Appellee, v. Paul CLEVELAND, Defendant-Appellant, and Commonwealth of Virginia; Frank Newman; Kevin Baldassari; Kevin Ponsart; Paul Thompson; John Dooley; Kevin Garlow; Brian Wancik; County of Fairfax; John Thomas Manger, in His Official Capacity as Chief of the Fairfax County Police Department; Stan G. Barry, in His Official Capacity as the Sheriff of Fairfax County, Virginia; John Does 1-20; Jane Does 1-20, Defendants; Joseph R. Parrish, Personal Representative of Tony Marcel Lee, Deceased, Plaintiff-Appellee, v. Paul Thompson; John Dooley, Defendants-Appellants, and Paul Cleveland; Commonwealth of Virginia; Frank Newman; Kevin Baldassari; Kevin Ponsart; Kevin Garlow; Brian Wancik; County of Fairfax; John Thomas Manger, in His Official Capacity as Chief of the Fairfax County Police Department; Stan G. Barry, in His Official Capacity as the Sheriff of Fairfax County, Virginia; John Does 1-20; Jane Does 1-20, Defendants; Joseph R. Parrish, Personal Representative of Tony Marcel Lee, Deceased, Plaintiff-Appellee, v. Kevin Garlow; Brian Wancik, Defendants-Appellants, and Paul Cleveland; Commonwealth of Virginia; Frank Newman; Kevin Baldassari; Kevin Ponsart; Paul Thompson; John Dooley; County of Fairfax; John Thomas Manger, in His Official Capacity as Chief of the Fairfax County Police Department; Stan G. Barry, in His Official Capacity as the Sheriff of Fairfax County, Virginia; John Does 1-20; Jane Does 1-20, Defendants
- **Court:** Court of Appeals for the Fourth Circuit
- **Decided:** June 18, 2004
- **Citations:** 372 F.3d 294; 2004 U.S. App. LEXIS 12033
- **Precedential status:** Published
- **Opinion:** Dissent by Luttig
- **Judges:** Luttig, Williams, King
- **Cited by:** 471 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9497084

## How later opinions describe it (automated extraction)

- finding that a prisoner can demonstrate that a prison official disregarded a risk to prisoner safety through circumstantial evidence showing that the response to the risk was “patently inadequate”
- noting that deliberate indifference “is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence” (emphasis added
- holding that “a district court’s order denying a defendant’s claim of qualified immunity is a qualifying order under the collateral order doctrine and thus is reviewable immediately”
- noting that the standard for evaluating deliberate indifference claims under the Fourteenth Amendment “is the same as that which applies in cases arising under the Eighth Amendment”

## Opinion text

LUTTIG, Circuit Judge,
dissenting:
With today’s decision, this court completes the turn of both the deliberate indifference and qualified immunity doctrines on their heads, so confounding these two important doctrines that it is literally impossible in the first instance to make principled predictions as to what conduct will and will not be considered to constitute “deliberate indifference,” and, upon a finding of such, to make like predictions as to the availability of qualified immunity.
In Robles v. Prince George’s County, 302 F.3d 262 (4th Cir.2002), the court held that law enforcement officers could not possibly be expected to know that it might be unlawful to handcuff a detainee to a pole in the middle of a deserted shopping-center parking lot, at 3:00 in the morning, and abandon him there, for no law enforcement purpose whatsoever.
After so holding in Robles, the court held in Bailey v. Kennedy, 349 F.3d 731, 739-41 (4th Cir.2003), contrary to Robles and without even a citation to that case— in an opinion by Judge Williams, the author of today’s decision — that police offi *313 cers did violate the Constitution and should have known that their actions clearly violated the Constitution, when they did no more than take an allegedly suicidal person into custody for psychological evaluation, upon responding to an emergency 911 call reporting that that person was intoxicated and depressed, and was going home to commit suicide. This the court held, while acknowledging that there was a “lack of clarity” in the law governing the constitutionality of seizures made for the purpose of psychological evaluation, an acknowledgment which itself should have foreclosed official liability.
Two days later, in Odom v. South Carolina Dept. of Corrections, 349 F.3d 765 (4th Cir.2003), again contrary to Robles and again without even a citation to that case — in an opinion that Judge Williams joined to form the majority — the court held not only that prison guards could be found deliberately indifferent for an inmate’s assault by other violent prison inmates who had torn through their own cages and into the plaintiff inmate’s cage during an emergency evacuation, but also that the guards could be held to have known that their actions violated the clearly established constitutional rights of the assaulted inmate. These holdings, even though the guards were acting in the midst of evacuating the high-security inmates due to a fire in the prison; had purposely placed the aggressor inmates in separate cages from that of the victim, in response to the victim’s expressed fears of assault; and had taken affirmative steps to save the victim when the aggressor inmates began to break through from their separate cage into his, retreating only upon personal threat from the uncontrollable inmates — circumstances and conduct which, under established precedent, should have foreclosed even a finding of constitutional violation.
And, today, only a few months after Odom was decided, the court holds, contrary to Odom — in another opinion authored by Judge Williams — that officials, who loaded a highly intoxicated, vomiting man into the back of a van, with his hands cuffed behind his back and with his head covered with a mask specifically designed to trap fluids excreted from the mouth and nose, and left him unattended, unobserved and unobservable, for the duration of a thirty-minute drive to a detention center— palpable indifference that resulted in the man’s death from suffocation on his own vomit — did not even arguably violate any constitutional right of the decedent’s, much less any clearly established constitutional right.
Thus, to summarize, this court has held (in Robles) that no law enforcement officer could possibly know that it might be a violation of the constitutional rights of a detainee to handcuff him to a shopping center pole and abandon him there in the middle of the night, admittedly for no law enforcement purpose.
The court has held (in Bailey , without even a citation to Robles) that, although it was not a violation of clearly established constitutional rights (in Robles) for officers to handcuff a detainee to a pole in the middle of the night, for no law enforcement purpose whatsoever, it was a violation of clearly established constitutional rights for officers, legitimately responding to an emergency 911 call that an intoxicated and depressed person was going to commit suicide, merely to take the suicidal individual into custody for psychological evaluation purposes.
It has held (in Robles) that police officers could not possibly know that it might violate the rights of a detainee to handcuff him to a shopping center pole at 3:00 in the morning and abandon him, but held (in Odom, without even a citation to Robles *314 (or for that matter Bailey)) that prison guards acting during an emergency, who took numerous steps to prevent an assault by violent and uncontrollable inmates, not only violated the rights of an inmate who ultimately was assaulted (by failing to take further steps that were not even specified by the court), but could be held to have violated the inmate’s clearly established constitutional rights.
And it has held (in Bailey , without even a citation to Robles) that officers who merely took a suicidal person into custody for psychological evaluation after having been summoned to the scene by an emergency caller who reported that a suicide was imminent, could be held to have violated the clearly established constitutional rights of the person taken into custody, and (in Odom, likewise without even a citation to Robles) that prison guards who acted during an emergency to protect an inmate from assault but were unable to prevent that assault by fellow inmates could be held to have violated the clearly established constitutional rights of the assaulted inmate. But it now holds (in Parrish, without even a word of discussion of Bailey , and with no principled ground for distinguishing Odom) that officials who caused the death of a person by transporting him, intoxicated, with his hands cuffed behind his back, with his mouth and nose covered by a mask designed to trap fluids from escaping, and unobserved and unobservable, did not even arguably violate any constitutional right of the decedent, much less a clearly established right.
To juxtapose these individually indefensible and collectively irreconcilable holdings one with the other is to confirm that we are a court in need of instruction in the critical areas of our jurisprudence represented by these precedents. In ironic parallelism, we are set on a course of systematically (though I believe unthinkingly) denying to persons their rights not to be subjected to deliberate indifference at the hands of their government, through our own deliberate indifference to the controlling precedent not only of this court, but also of the Supreme Court. And, in testament to our complete inversion of the doctrines of deliberate indifference and qualified immunity, at the same time that we are failing to ensure this basic right to citizens, we are (I believe also unthinkingly) denying to law enforcement officers their corresponding right not to be punished except for conduct that is in violation of a citizen’s clearly established constitutional rights.
I.
In this case, faced with the understood risk that Tony Marcel Lee might aspirate his own vomit and die (1) if left alone, (2) unobserved and unobservable, in the back of a van, (3) heavily intoxicated (4) with his hands cuffed behind his back, and (5) with his face covered with a spit mask, (6) for the duration of a thirty-minute transport to an adult detention center, the appellant police officers did nothing, nothing at all, but lay Lee on his side and send him on his way. The indifference of these officers to Lee’s safety was far more evident and egregious by any measure than the conduct this court held unequivocally to constitute deliberate indifference in Odom. And this is so, even if one indulges Judge Williams’ incredible holding (reminiscent of our like holding in Robles) that a reasonable officer could not possibly be expected to realize that putting a mask over a highly intoxicated, vomiting person’s mouth and nose — a mask held in place by elastic bands and specifically designed to prevent leakage downwards, see ante at 298 n. 2 — might contribute to the aspiration and suffocation of that person on his own vomit.
*315 Because Odom is unquestionably binding precedent in this case, and insusceptible of principled distinction, I would affirm the district court’s denial of summary judgment to appellants and remand the case for trial.
II.
Importantly, and as she must, Judge Williams admits that the officers “recognized that, given Lee’s level of intoxication, Lee was at risk of aspirating his vomit” and she also admits that this risk was substantial. Ante at 304. She then proceeds, however, to deny that any reasonable factfinder could find that the officers “appreciated the incremental risk that they themselves created by leaving the spit mask over Lee’s head during the ride to the adult detention center — ie., the risk that, should Lee vomit, the spit mask would trap Lee’s vomit around his face and effectively defeat the purpose of specially placing him on the van floor on his side with his head tilted.” Ante at 305.
For the moment, I will assume arguen-do the correctness of Judge Williams’ assertion that no reasonable factfinder could conclude that the officers recognized the “incremental risk” associated with the spit mask. Even on this assumption, however, Judge Williams still errs in her legal conclusion that appellee has not made out a prima facie ease of deliberate indifference, because, under Odom, when the facts are truly viewed in the light most favorable to the appellee, appellee has made out a pri-ma facie case of deliberate indifference to the risk that even Judge Williams admits the officers recognized. In particular, under Odom, a reasonable factfinder could conclude that the officers were deliberately indifferent to the risk that Lee might suffocate on his vomit during transport to the adult detention center, even had no spit mask been placed over his mouth and nose.
A.
In Odom, prison guards were evacuating inmates from a high-security prison to outdoor cages, due to an emergency caused by a fire in the prison. Odom, who had been evacuated along with the other inmates, was attacked and beaten by inmates who were able to break through from their adjoining cage into his. Odom sued the prison guards who had evacuated the inmates, alleging that the guards had been deliberately indifferent to the risk that he would be harmed by the other inmates. The district court granted summary judgment to the guards. This court reversed, holding that Odom’s allegations, if believed, established that the prison guards acted with deliberate indifference toward the harm that ultimately befell Odom, because they were aware that inmates were trying to break into Odom’s cage and attack him, but failed to do enough to prevent this risk from materializing. 349 F.3d at 769-72 . The court so held, even though the defendants were, throughout the events in question, acting in the midst of a prison emergency and had taken a number of affirmative steps to prevent Odom from being harmed at the hands of the other inmates. For instance, the defendants had placed the hostile inmates in a cage separate from Odom’s in response to Odom’s expressed concerns, and had even attempted subsequently to free Odom as the other inmates tried to break into his cage, retreating only when they were threatened by the inmates with homemade weapons. See id. at 771 . And the court so held, even though it did not identify a single action that the guards should have taken, but failed to take.
*316 B.
When the facts in this case are viewed in the light most favorable to the plaintiff, it is clear that Odom controls our disposition. Indeed, even crediting arguendo Judge Williams’ holding that no reasonable juror could possibly find these officers were aware that placing over Lee’s head a mask designed to trap and hold fluids excreted from his mouth and nose might increase the risk that he would suffocate on his own vomit, the conduct complained of in this case obviously is far less defensible and correspondingly far more indicative of deliberate indifference than the conduct of the guards in Odom.
First, in Odom, as noted, the court could not even identify any steps that the defendant officers could have taken to prevent the assault on Odom, but held nonetheless that the guards had been deliberately indifferent to the risk of harm to Odom. See id. at 771-72. Here, in contrast, there were any number of reasonable and obvious alternative courses of action readily available to the officers other than simply leaving the highly intoxicated Lee handcuffed and unobserved in the back of the van for the ride to the adult detention center. They could have assigned someone to ride in the van, to observe Lee during transportation to the detention center. They could have transported Lee in the back seat of a police cruiser instead of the van, where he could have been observed or at least heard. Or, at the very minimum, they could have placed Lee in the left compartment of the van, from which position he would have been visible to Cleveland during the drive. 1
Second, in Odom, the defendant prison guards were responding to an emergency, evacuating violent, highly dangerous prisoners from their cells to makeshift cages outdoors in order to protect them from fire. And the inmates were uncontrollable even during the evacuation. Here, in contrast, there was no emergency whatsoever confronting the defendants. The officers had an unlimited amount of time to reflect calmly on Lee’s transport and to consider measures that would ensure that the risk to Lee that they knew existed would not materialize during the trip to the adult detention center. Indeed, in response to a direct deposition question asking whether he “had time to think about whether the hood should be removed from Mr. Lee before he left in the wagon,” Lieutenant Dooley answered in the affirmative. See J.A. 175.
Third, in Odom, the guards took affirmative steps not only to place Odom in a cage separate from the hostile inmates; they subsequently attempted to free Odom from his cage when it became evident that *317 other inmates were trying to gain access to Odom’s cage, withdrawing only when they were threatened with homemade weapons by the violent inmates. See id. at 771, Here, in contrast, all the officers did in response to the recognized risk to Lee was to place him on his side in the van — a step that could scarcely be thought sufficient to pre-vent the danger of Lee aspirating his own vomit, given the possibility that Lee’s position could shift during the ride, as in fact it did, see J.A. 1503 (reciting that Lee was found lying not on his side, but face down, when the van arrived at the detention center), and the fact that Lee’s hands were cuffed behind his back, preventing him from self-help in the event he began to choke.
It follows necessarily from our holding that the guards in Odom were deliberately indifferent to the risk of harm to Odom, that the defendants in this case were deliberately indifferent to the risk of harm to Lee, even crediting Judge Williams’ incredible holding that no juror could reasonably conclude that the officers were aware that putting a spit mask over Lee’s mouth and nose might increase the risk that Lee would aspirate and suffocate on his own vomit. 2 Indeed, comparing and contrasting the conduct of the respective officers in the two cases and the surrounding circumstances in which the respective conduct occurred, the instant case is, far and away, a more compelling one for a finding of deliberate indifference than was Odom.
C.
Unsettled by the palpable inconsistency between her holding that the alleged conduct in Odom did constitute deliberate indifference and her holding that the alleged conduct in this case does not, Judge Williams employs a two-step strategy in an attempt to distinguish Odom. First, in Part I of her opinion, in a transparent effort to make the facts of this case appear as distinguishable from Odom as possible, Judge Williams describes these facts in the light most favorable to the defendant officers, even as she claims to view them “in the light most favorable to the plaintiff.” Ante at 297. Second, having so skewed the facts, Judge Williams then claims that Odom is distinguishable because in Odom there was evidence that the defendants responded “with subjective awareness that their response was inappropriate,” while in this case there is none. See ante at 307-309.
When the facts of this ease actually are viewed in the light most favorable to plaintiff-appellee, however, it is clear that Judge Williams’ efforts to distinguish Odom fail.
*318 1.
As to Judge Williams’ skewed view of the facts, at critical junctures she sets them forth in the light most favorable to the defendant officers.
First, when describing the defendant officers’ decision to transport Lee from the station to the detention center in the police van instead of in a cruiser, Judge Williams sets forth as “fact” that “Dooley directed that, in accordance with ‘accepted practice and procedure,’ Cleveland use a police van that had been specially modified to transport prisoners.” Ante at 299. To the extent Judge Williams means by this either that Lieutenant Dooley contemporaneously announced that he had decided Lee should be transported in the police van because such was required by “accepted practice and procedure,” or even just that Lieutenant Dooley himself was motivated by a recognition of “accepted practice and procedure” in choosing the van over the cruiser, even without announcing such to the other defendant officers, Judge Williams is simply mistaken. No evidence in the record, including evidence from the depositions of the defendant officers themselves, supports either of these propositions. And the page in the Joint Appendix to which Judge Williams cites says nothing whatsoever about Lieutenant Dooley, much less about his motivation. Rather, that page merely states, in relevant part: “[Officer] Cleveland transported Mr. Lee directly to the Adult Detention Center without incident in Mount Vernon’s prisoner transport wagon. This was the accepted and established procedure because the wagon is much easier to clean up should a prisoner vomit during transport.” J.A. 1332.
Though there is no evidence that Dooley had “accepted practice and procedure” in mind when he directed that Officer Cleveland use the van instead of the cruiser, there is evidence that Dooley had in mind purely practical concerns that the van would be easier to clean up than the cruiser, in the event that Lee were to vomit en route. 3 Indeed, the notes of Sergeant Ja-coby, from an interview with Lieutenant Dooley conducted for purposes of Internal Affairs review only one day after Lee’s death, state the following: “Transport in wagon — easier to clean up.” J.A. 1485 (emphasis added). Given this evidence, coupled with the recognition that the officers had already seen Lee vomit into the cruiser in which Cleveland transported him to the police station, a factfinder could easily conclude that regardless of procedure, the fateful choice between cruiser and van was made for no better reason than that it would be easier to clean the van after Lee’s transportation to the detention center. 4
*319 Continuing her recitation of the facts in the light most favorable to the defendant officers, Judge Williams next sets forth as “fact” that when placing Lee in the van, “the officers determined that Lee should not be placed on the bench because of the risk he would roll off of it and injure himself.” Ante at 300. Thus, Judge Williams suggests that the officers made a careful and reasoned determination that it would be better for Lee if Lee were placed on the floor of the van rather than on the bench. But, especially in light of the admitted fact that there was no discussion whatsoever between the officers about whether Lee should be placed on the bench or on the floor, see J.A. 1265, a reasonable juror would not be compelled to find either that any sort of careful and reasoned determination was made or that, if made, such determination was made for the benefit of Lee and not for other reasons. Rather, having already concluded that the choice between the cruiser and the van was driven by considerations of the officers’ convenience rather then Lee’s safety, a reasonable juror could easily conclude that the placement of Lee on the floor instead of the bench was similarly motivated. In particular, a reasonable ju--ror could conclude that due to Lee’s extreme state of intoxication, the officers did not even bother thinking about the difficult task of trying to place him on the narrow bench, but simply laid him onto the floor of the van because that was easiest for them, without regard to Lee’s safety.
Undeterred by the requirement that the facts be stated in the light most favorable to plaintiff-appellee, Judge Williams next presents as “fact” that the officers took care to “position[] Lee’s legs so that he would remain on his side during the transport.” Ante at 301. Again, however, a reasonable juror would not be compelled to find that the officers did anything approaching careful positioning of Lee’s legs, or that they did such for the purpose of ensuring Lee would remain on his side during transport. Lee, who was five-feet-eight-inches tall, could hardly fit lengthwise in the police van compartment, which was only five-feet-seven-inches long. Compare J.A. 260 with J.A. 1167. In light of this, and given the officers’ obvious motive to try to avoid liability by making their actions seem as careful as possible after the fact, a reasonable jury could conclude that what was afterwards described *320 as careful positioning of Lee’s legs so he would not roll over was nothing more than relatively automatic efforts to shove Lee’s legs into the compartment so that they would fit. 5
At bottom, when actually viewed in the light most favorable to plaintiff-appellee, the facts show that the officers chose the van over the cruiser for no better reason than their own convenience, despite the risks to Lee’s safety, and without any feeling that this choice was required by “accepted practice and procedure”; that they laid Lee onto the hard metal floor of the back of the van without caring about (although fully aware of) the possibility that his position might shift or that he might even hit his head on the floor or sides of the transport compartment; and that they did nothing approaching careful positioning of his legs to ensure he would not roll over, but merely shoved his feet inside the compartment so they could close the door and send him on his way. Though a reasonable juror would not be compelled to see the facts this way, a reasonable juror not only could, but most justifiably would, see the facts this way given the record evidence. Because a reasonable juror could see the facts this way, at this stage we must view the facts this way for the purposes of our legal analysis, including most significantly our analysis of how Odom controls the present case. See United States v. West Virginia, 339 F.3d 212, 214 (4th Cir.2003).
2.
Judge Williams’ distorted recitation of the facts, by itself, raises doubts about the credibility of her claim that Odom is distinguishable on the ground that in Odom there was evidence that the defendants responded “with subjective awareness that their response was inappropriate,” while in this case there is none. I am tempted simply “to commend the reader to the majority opinion in [ Odom ] and urge the reader to contrast it with” the facts in this case when viewed in the light most favorable to the plaintiff. Compare ante at 308 n. 16 (“[Tjempting though it may be to address point-by-point the dissent’s characterizations of the facts and rationale of Odom that, in my view, do not square with the majority opinion in Odom, I commend the reader to the majority opinion in that case and urge the reader to contrast it with the dissent’s characterization thereof here.”). But I do not believe such is appropriate, in this case in which a man’s life has been tragically taken, and in which a factfinder could reasonably and easily find — given the evidence of record — that the defendant officers were deliberately indifferent to the possibility of that man’s death. Rather, I feel it incumbent upon me to explain precisely why I believe *321 Odom cannot be distinguished on the grounds that Judge Williams contends.
According to Judge Williams, Odom rested on the ground that the defendant guards in that case “responded to a perceived risk with subjective awareness that their response was inappropriate,” as demonstrated by the guards’ statements openly mocking Odom and indicating that the guards believed he deserved to be beaten. See ante at 307-308. Odom rested on no such ground. Nowhere in Odom did the court even set forth, as a necessary element of liability for deliberate indifference, the requirement that a defendant “respond[ ] to a perceived risk with subjective awareness that [his] response [is] inappropriate,” much less did its judgment of reversal rest on any such finding. 6 For this reason alone, Judge Williams’ attempted distinction of Odom is indefensible.
But even were Judge Williams’ revisionist characterization of the court’s holding in Odom correct, Odom would still be in distinguishable. In this case, there is just as much evidence as there was in Odom, if not more, that the officers “subjectively recognized that [their] actions were ‘inappropriate in light of [the risk they perceived].’ ” As Judge Williams herself correctly states, “a factfinder may conclude that [an] official’s response to a perceived risk was so patently inadequate as to justify an inference that the official actually recognized that his response to the risk was inappropriate under the circumstances.” Ante at 303-304. Viewing the facts in the light most favorable to plaintiff-appellee as described above, see supra at 301-304, a reasonable juror could eon-elude that doing nothing more than laying Lee on his side was “so patently inadequate” as to justify the requisite inference. Indeed, as Judge King in his separate concurrence candidly admits, “common sense indicates that the officers’ actions were inappropriate ...” Ante at 312. If this is true, which it undoubtedly is, then all that a reasonable juror would need to find in order to conclude that these officers acted “with subjective awareness that their [actions] were inappropriate”, is that these officers possessed common sense, but simply cared too little about Lee’s safety to carry out the clear dictates of that common sense. Given the above-recited record evidence, a reasonable jury could certainly make this finding.
III.
Until this point, I have accepted arguen-do Judge Williams’ incredible holding that a jury could not possibly find that the officers were aware of the risk inherent in putting the spit mask over Lee’s head, mouth and nose, for the simple reason that Odom requires a holding that a reasonable jury could find these officers to have been deliberately indifferent whether they were aware of this increase to the existing risk or not. But, in fact, this holding is just as unsupportable, factually, as Judge Williams’ attempted distinction of Odom is, legally.
A.
The appellee proffered before the district court, and would offer into evidence at trial, exemplars of the TranZport Hood, the exact type of spit mask used on Lee. 7 *322 Judge Williams’ own description of the spit mask (which itself foils Judge Williams’ later attempts to deny the obviousness of the risks associated with this device) reads as follows:
The TranZport Hood is specifically designed to be used on detainees when a risk of officers’ exposure to infectious disease is present. The [spit mask] is shaped like a bag or hood and goes entirely over the detainee’s head and neck and consists of three sections. The top-most portion of the mask is made of a fine nylon netting that is open and see-through and covers from the top of the detainee’s head to beneath the nose. The middle portion of the mask, beginning below the nose and separated from the top portion by a thin elastic band that is less than one-quarter inch wide, is made of a breathable bacteria-filtering medical fabric that very loosely covers the detainee’s mouth and chin area. The medical fabric is not form-fitting, but rather acts as a pouch around the wearer’s head. Beneath the bacteria-filtering medical fabric is the bottommost section, a four-inch sleeve made of a gauzy lightweight elasticized material that fits snugly, although not tightly, around the detainee’s neck and is easily stretchable or expandable.
Ante at 298 n. 2 (emphases added). A reasonable factfinder could take one glance at such an exemplar spit mask, which is held in place by an elastic band on the top and elastic material on the bottom, which, even under Judge Williams’ description, “fits snugly ” around the individual’s neck, and immediately and reasonably conclude that the officers must have been aware that leaving such a spit mask on the unobserved, handcuffed, and extremely intoxicated Lee would increase the already-present risk of Lee suffocating on his vomit and dying during transport to the detention center. 8 In other words, the spit mask itself constitutes ample evidence to justify a finding that the officers understood full well the danger to which Lee was exposed when they affixed the mask to Lee, knowing that he had vomited and might continue to vomit, handcuffed him behind his back, and placed him in the back of the van, unobserved and unobservable, for the duration of the drive to the adult detention center.
B.
Ignoring entirely the power of the mask itself as circumstantial evidence, Judge Williams constructs a three-pronged rationale to support her holding that “the evidence does not show that the incremental risk associated with the spit mask was so *323 obvious at the time of this incident as to justify an inference of actual knowledge.” Ante at 305. Judge Williams claims (1) that the mask was sufficiently loose-fitting to convince at least one officer that fluids could simply flow out the bottom, (2) that officers could not possibly recognize any risks associated with using such a spit mask absent specialized training, and (3) that because even a medical technician did not recognize the dangers inherent in use of the mask, those dangers must not be obvious. Each prong of Judge Williams’ rationale is as unsupportable on the record before us as is the ultimate conclusion in support of which the rationale is constructed. Indeed, as to each prong of Judge Williams’ rationale, Judge Williams either omits directly relevant facts or misstates the facts that she does present.
1.
Judge Williams first states that “at least one officer ..., when viewing the manner in which the mask fit around Lee’s neck, came away with the impression that it fit loosely enough such that, in the event Lee vomited, there was ‘plenty of room for a lot of liquid to kind of exit out.’ ” Ante at 305 (citing J.A. 1272). I understand Judge Williams to mean by this, that the mask did in fact fit loosely, and not merely that one officer had the impression that fluid could flow from the bottom of the mask, because if it means the latter, it would be irrelevant to the summary judgment analysis. On this assumption, the evidence that the mask fit loosely is anything but uncon-tradicted.
To begin with, Judge Williams’ own description of the mask as equipped unth elastic material on the bottom that “fits snugly” around the person’s neck stands in contradiction to the evidence that Judge Williams describes as supporting the proposition that the mask fit loosely enough for vomit simply to flow out the bottom. Moreover, in the hearing before the district court and in its brief filed on appeal, appellee emphatically maintained that it was disingenuous for appellants to claim that the mask was loose-fitting enough for vomit simply to flow out the bottom of the mask, because the officers had observed Lee expelling liquids into the mask but had not seen any liquids flow out the bottom. See J.A. 1745-46; Appellee’s Br. at 20, 40.
And, at oral argument, in response to questioning from Judge Williams herself as to the loose-fitting nature of the mask and whether fluids could flow out the bottom, appellee continued to press this position:
COUNSEL: He expectorated something into the hood, but none of it leaked out.
JUDGE WILLIAMS: Well I thought that it did, that it went down his throat and onto his chest.
COUNSEL: No, no. That was the whole point. That was the point of using this thing apparently.
Tr. of Oral Arg. Indeed, in light of the fact that the “whole point of using” the spit mask was to prevent fluids from leaking out from the face area, it would be entirely reasonable for a jury to reach the conclusion that the officer who, in a deposition taken after appellee filed his lawsuit, described the mask as “extremely loose” so that fluids “would easily flow out the bottom,” J.A. 693, was simply dissembling in an effort to avoid liability. 9
*324 It could thus hardly be less tenable for Judge Williams to rely at all on this “evidence” of the mask’s loose-fitting nature.
2.
Next, Judge Williams asserts that the officers’ lack of “prior direct experience with this type of mask or any formal training on its use ... diminishes] the plausibility of the inference that the officers actually recognized the risk associated with its use.” Ante at 305. In other words, Judge Williams rejects that a reasonable officer in the appellants’ shoes could recognize that putting a spit mask of the type described above over a vomiting, highly intoxicated person’s mouth and nose, would increase the risk that that person might suffocate on his vomit. This is precisely the kind of reasoning that was employed by the majority in Robles v. Prince George’s County, 302 F.3d 262 (4th Cir.2002), to hold that officers could not possibly have known that handcuffing a detainee to a pole in the middle of a shopping center at 3:00 in the morning for no law enforcement purpose whatever might violate the detainee’s clearly established rights. Given our court’s silent, but unmistakable, repudiation of Robles, the adoption of this same line of reasoning by Judge Williams here only serves to confirm that her decision today cannot be reconciled with Odom. 10
3.
Finally, Judge Williams focuses on the fact that the officers placed Lee in the van in the presence of a “trained medical professional,” EMT Kathleen Earl. In particular, Judge Williams emphasizes that even as Earl observed Lee being placed in the van, she “expressed no concern at that time about the spit mask specifically and effectively agreed with the officers that placing Lee on his side was sufficient to mitigate any risk to Lee.” Ante at 306 (emphasis added). Accordingly, Judge Williams reasons, “the fact that a trained medical technician did not recognize the risk associated with transporting a handcuffed inebriated person wearing a spit mask strongly suggests that the risk was something less than obvious.” Id. at 306.
Once again, Judge Williams’ reasoning is refuted by the evidence in the record. In fact, Judge Williams’ assertions that the medical technician “expressed no concern at that time about the spit mask specifically and effectively agreed with the officers *325 that placing Lee on his side was sufficient to mitigate any risk to Lee” is fraught with demonstrable inaccuracies.
To begin with, Earl actually did express concern to the officers about the specific risk that Lee would vomit into the spit mask. One need look no further for confirmation of this than page nine of Judge Williams’ own opinion, where Judge Williams herself states: “At some point during her examination, EMT Earl asked the officers about the use of the spit mask and specifically inquired about what might happen should Lee vomit with the mask over his head.” Ante at 299 (emphasis added). Because the record shows that this expression of concern occurred not long before Lee was loaded into the van, it is largely irrelevant that Earl failed to repeat this concern, which she had previously expressed to the officers, when Lee was loaded into the van only minutes later.
Second, contrary to Judge Williams’ statement, EMT Earl did not “effectively agree[ ] with the officers that placing Lee on his side was sufficient to mitigate any risk to Lee.” In fact, the officers withheld from Earl the most salient information she would have needed even to appreciate the risk to Lee, much less to “effectively agree” that the officers’ conduct in doing nothing more than placing Lee on his side was sufficient to mitigate that risk. For, in response to Earl’s initial inquiry as to why a spit mask had been placed on Lee, the officers told Earl not that Lee had been “vomiting,” but that Lee had been “spitting.” Indeed, Earl herself testified that it was only after this law-suit was filed that she first learned that Lee had actually been vomiting before the spit mask ivas placed on him. J.A. 757. As the Fairfax County Police Department itself concluded during its internal investigation of Lee’s death:
Upon [the medical technicians’] arrival, Deputy Garlow apparently told [them] that Lee was wearing the Transport Hood because he was spitting. This statement was false, and it prevented the medical technicians from removing the mask for a more thorough evaluation.
J.A. 1331. Because the defendants’ false statement prevented Earl from fairly assessing the risks to Lee, who — unbeknownst to Earl — had previously been vomiting, no “effective agreement” with the medical adequacy of the officers’ response can be inferred from Earl’s actions.
In denying the significance of the officer’s failure to inform Earl that Lee had been vomiting, see ante at 306 n. 14, Judge Williams thus fails to give any credit to the conclusions drawn by the Fairfax County Police Department in its own internal investigation. She also overlooks the fact that while Earl may have been able to guess at Lee’s intoxication, she never guessed that he was so intoxicated that he had vomited several times already. Indeed, in her deposition, Earl admitted that she made no effort to assess Lee’s actual level of intoxication, because she detected no odor, and that she “ha[d] no idea what his level of intoxication was.” J.A. 236. (In fact, of course, Lee’s actual level of intoxication at that point was at least 0.35, see ante at 297, a level which is more than sufficient to cause impairment of perception and mental processes, and almost sufficient to cause unconsciousness).
If anything, then, Earl’s role in the events leading to Lee’s death actually serves not to undermine the obviousness of the risk inherent in the spit mask’s use, as Judge Williams asserts, but to underscore the obviousness of that risk. Despite the officers’ failure to tell Earl that Lee had actually been seen to vomit al *326 ready, Earl nonetheless raised of her own accord the concern that Lee might vomit into the spit mask. See J.A. 758. From this, a reasonable juror could conclude not only that the risks associated with the spit mask were obvious, but that these risks actually had been called to the officers’ attention and were fresh in their minds at the time they loaded Lee into the van.
IV.
Under this circuit’s precedent in Odom, a jury could reasonably conclude that the officers’ conduct in this ease would constitute deliberate indifference even if the officers were unaware of the specific ways in which use of the spit mask exacerbated the admitted risk that Lee would aspirate on his own vomit. It follows a fortiori under Odom that a jury could conclude that the officers’ conduct constituted deliberate indifference, to the extent that the officers were aware that use of the spit mask could increase the risk to Lee of suffocation, yet did nothing more to prevent Lee’s death than to turn Lee on his side. Because a jury could readily conclude that these officers were so aware — precisely as this court held that a jury could find that the officers in Odom were so aware of the dangers that befell Odom — it is doubly indefensible for the majority to hold that no jury could conclude that the officers’ conduct rose to the level of deliberate indifference.
I would affirm the district court’s denial of summary judgment to the defendant officers, and I dissent from the majority’s refusal to follow Odom and do the same.
. Judge Williams contests neither that the court in Odom could not identify additional measures which the defendant guards in that case could have taken, nor that in this case any number of reasonable alternative courses of action were readily available to the defendant officers. Rather, Judge Williams attempts to deflect attention from any direct comparison between this case and Odom with the assertion that "[u]nder our precedent ... the feasibility of additional precautionary measures is rarely probative in a deliberate indifference inquiry.” Ante at 309.
I disagree with Judge Williams as to this assertion, but I need not demonstrate its incorrectness. For where, as here, additional precautions are both obvious and easily undertaken, yet are not undertaken despite awareness of a substantial risk of harm, a reasonable factfinder could conclude from the obvious availability and feasibility of those additional precautions that an official was subjectively aware of the inappropriateness of his conduct. And such a determination would be directly relevant to the question of whether that official is liable for deliberate indifference, under the very standard which Judge Williams herself sets forth, see ante at 302-304.
. In a footnote, Judge Williams suggests concern that my statement that the spit mask was wrapped around Lee’s mouth and nose "should not create the misimpression that the bacteria filtering medical fabric fit over Lee’s nose, which it did not.” Ante at 298 n. 4.
This concern is obviously irrelevant. The risk to Lee, and the risk that ultimately caused Lee’s death, was not that Lee would die because the middle portion of the mask would itself directly prevent Lee’s breathing, but that Lee would die after vomiting and then inhaling such vomit, which would then proceed to block his windpipe and thus prevent air from reaching his lungs either through his mouth or through his nose. While this risk of "aspiration on vomit” existed even without the mask, see, e.g., Krueger v. Fraternity of Phi Gamma Delta, 2001 WL 1334996 (Mass.Super.2001) (wrongful death case in which heavily intoxicated individual who was not wearing a spit mask died when he stopped breathing after aspirating vomit while being left alone and unobserved), the mask increased this risk because the middle portion of the mask ensured that vomit, once expelled, would nonetheless remain close to Lee’s mouth and thus in optimal position for fatal aspiration into Lee’s windpipe.
. This reason, of course, is the same as the reason behind the "accepted practice and procedure" referenced in the page from the Joint Appendix to which Judge Williams cites. But viewed in the light most favorable to the plaintiff-appellee, this is nothing more than coincidence.
. In a footnote, Judge Williams also recounts Lieutenant Dooley’s explanation that the choice between the van and the cruiser was motivated by concern that, "in the backseat of the cruiser, Lee would not remain seated upright and thus might bang his head on the plexiglass divider between the front and back seats, whereas in the back of the van, Dooley and the other officers figured, Lee would have more room to stretch out and would be at less risk of injuring himself.” Ante at 299 n. 7. Judge Williams does not appear at this stage to credit Dooley’s explanation, however, as evidenced by her subsequent statement that, "[i]n contrast, Lieutenant Brenda Akre stated that transporting intoxicated individuals in a police van 'was the accepted and established procedure because the wagon is much easier to clean up should a prisoner vomit during transport,’ ” id. (citing J.A. 1332), followed by her somewhat opaque pronouncement that *319 "[t]o the extent this evidence is material and conflicts, we view it in the light most favorable to [the plaintiff).”
But this is still far too charitable to Dooley's explanation that the choice between the van and the cruiser was made out of concern that Lee might "bang his head,” which explanation was first given by Dooley during a deposition in August 2002, over a year after Lee's tragic death. See J.A. 161, 182-83 (deposition of Lieutenant Dooley). First, the explanation given by Dooley during his August 2002 deposition contrasts not only with Lieutenant Akre's statement, but also with Sergeant Jaco-by’s notes from the interview with Lieutenant Dooley conducted for purposes of Internal Affairs review on May 23, 2001, only one day after Lee's death, which stated merely: "Transport in wagon — easier to clean up," and included no mention of Dooley’s concern about Lee "bang[ing] his head.” J.A. 1485 (emphasis added).
Second, even apart from the contrasts between Dooley's deposition explanation and other statements in the record, the explanation that the choice between cruiser and van was made out of concern that Lee might "bang his head” makes little sense. In particular, as appellee argues, there was also an obvious and significant possibility that Lee would “bang his head” after being left, extremely intoxicated and unsecured by any seat belt or other restraining device, to slide around on the hard metal floor in the back compartment of the police van, sandwiched between a metal divider on one side and a wooden bench on the other, during the twists and turns of the thirty-minute drive to the detention center. See Appellee’s Br. at 27; see also J.A. at 638.
. In a vain attempt to bolster the officers’ statements that they took care to position Lee's legs such that his body would not shift en route, Judge Williams relies on the fact that EMT Kathleen Earl, who observed Lee being loaded into the van but who herself has not been sued in this case, also testified that the officers positioned Lee’s legs so he would remain on his side. According to Judge Williams, Earl’s testimony as to the positioning of Lee’s legs must be believed even at this stage, because it is both '‘uncontradicted” and "unimpeached.” Ante at 308 n. 17. But in fact, Earl’s testimony is neither. First, it is contradicted by the circumstantial evidence that upon arrival at the detention center, Lee's body had shifted, for he was found face down. See J.A. 1503. Second, it is impeached by the fact that Earl was not merely a disinterested witness, but also a participant in the events at the police station. Prior to the commencement of this lawsuit at least, and before it was clear that Earl would not be sued herself, Earl had incentive to make her efforts and the efforts of the defendant officers appear reasonable.
. Compare ante at 302-304 (setting forth, as a necessary element of liability for deliberate indifference, the requirement that "the evidence must show that the official in question subjectively recognized that his actions were inappropriate in light of [the] risk”) (citation omitted), with Odom, 349 F.3d at 770 (omitting any reference to such a requirement).
. Indeed, using the logic that”[if] a picture is worth a thousand words, ... a three-dimen *322 sional object is worth a million/' Tr. of Oral Arg., appellee has even included exemplar spit masks as part of the record in this appeal. See 5 J.A. (exemplar of the TranZport Hood).
. As I assert in the text, the spit mask, even as Judge Williams describes it, itself provides sufficient circumstantial evidence that the officers were aware of the dangers in leaving it on Lee during his transport to the detention center. That said, however, Judge Williams' description actually represents yet another failure to set forth the facts in the light most favorable to the plaintiff-appellee. In particular, a reasonable factfinder would not be compelled to find that the bacteria-filtering medical fabric covers a wearer’s mouth and chin area “very loosely.” EMT Earl, indeed, on whose “disinterested” testimony Judge Williams relies extensively in other contexts (although not in this one), see ante at 308 n. 17, testified that the mask "wasn't real tight and it wasn't loose either,” but that "it just fit.” J.A. 1473. Nor can it be said that the elasticized material at the bottom which “fits snugly” around the wearer's neck "is easily stretchable or expandable.” At the very least, this material would not be easily stretchable or expandable from the perspective relevant in this case, that of a heavily-intoxicated detainee who has been handcuffed behind the back.
. EMT Earl also testified that an officer stated to her at the station, in response to her question about what would happen if Lee were to vomit into the spit mask, that the mask had a gap underneath the chin through which vomit could flow out. J.A. 758. Of course, as even *324 Judge Williams' description should make clear, and as inspection of the exemplar spit masks confirms, the mask has no such gap. See J.A. at 5. Indeed, it is hard to imagine how any of the officers at the scene could have honestly thought that the spit mask had such a gap. At best for the appellants, therefore, Earl's testimony proves that one officer labored under the misconception that the mask had a gap at the bottom to permit the release of fluids. But this is clearly insufficient to award summary judgment to appellants, given the substantial contrary evidence and permissible inference.
. Of course, neither can Judge Williams' holding in this case, that a reasonable law enforcement officer could not be expected to appreciate, without special training, the dangers inherent in putting a spit mask over a highly intoxicated individual's head and then leaving him alone and unobserved, be reconciled with her own opinion in Bailey v. Kennedy, 349 F.3d 731 (4th Cir.2003). There, as discussed supra, Judge Williams held that a reasonable law enforcement officer could be expected to realize that it would be unconstitutional merely to take an individual into custody upon responding to a 911 call that the person was about to commit suicide, even though, as Judge Williams recognized, there was a "lack of clarity” in the law governing the constitutionality of seizures for psychological evaluation purposes. See id. at 739-41. The inconsistency between Bailey , on one hand, and her decision today, on the other, is at once both palpable and inexplicable.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9497084. Public record. Not legal advice.