Opposition Brief — Mark Jakob, et al., Petitioners v. Clara Cheeks

No. 23-587

IN THE

Supreme Court of the United States

MARK JAKOB, ET AL.,

Petitioners,

v.

CLARA CHEEKS,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth

Circuit

RESPONDENT’S BRIEF IN OPPOSITION

CHRISTOPHER B. BENT

LAW OFFICE OF

CHRISTOPHER BENT, LLC

111 West Port Plaza Drive

Suite 850

St. Louis, MO 63146

(314) 439-0287

WENDY LIU

Counsel of Record

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

wliu@citizen.org

Attorneys for Respondent

January 2024

i

QUESTION PRESENTED

Whether the court of appeals correctly held that

police officers were not entitled to qualified immunity,

where they purposely caused Mikel Neil to crash into

a tree at high speed and then fled the scene, without

stopping to render aid to Mr. Neil or call for medical

assistance.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF AUTHORITIES ...................................... iii

INTRODUCTION ....................................................... 1

STATEMENT .............................................................. 2

Factual Background ................................................ 2

Proceedings Below ................................................... 3

REASONS FOR DENYING THE WRIT .................... 6

I. The law is clearly established that an individual

has a right to be rendered aid when injured while

officers are seeking to apprehend him. ................. 7

II. The decision below correctly held that the two

officers were deliberately indifferent to Mr. Neil’s

objectively serious medical need. .......................... 9

CONCLUSION.......................................................... 13

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Aswegan v. Henry,

49 F.3d 461 (8th Cir. 1995) ................................. 10

Bailey v. Feltmann,

810 F.3d 589 (8th Cir. 2016) ............................... 11

Camberos v. Branstad,

73 F.3d 174 (8th Cir. 1995) ................................... 9

City of Revere v. Massachusetts General Hospital,

463 U.S. 239 (1983) ........................................... 7, 9

Copeland v. ABB, Inc.,

521 F.3d 1010 (8th Cir. 2008) ............................... 8

Cutter v. Wilkinson,

544 U.S. 709 (2005) ............................................... 8

DeShaney v. Winnebago County Department of

Social Services,

489 U.S. 189 (1989) ........................................... 7, 9

Estelle v. Gamble,

429 U.S. 97 (1976) ................................................. 9

Farmer v. Brennan,

511 U.S. 825 (1994) ............................................... 9

Jones v. Minnesota Department of Corrections,

512 F.3d 478 (8th Cir. 2008) ............................... 12

McRaven v. Sanders,

577 F.3d 974 (8th Cir. 2009) ......................... 11, 12

Redmond v. Kosinski,

999 F.3d 1116 (8th Cir. 2021) ............................. 11

Reese v. Hale,

58 F.4th 1027 (8th Cir. 2023) .......................... 9, 10

iv

Roberson v. Bradshaw,

198 F.3d 645 (8th Cir. 1999) ............................... 10

Schaub v. VonWald,

638 F.3d 905 (8th Cir. 2011) ............................... 10

Ziglar v. Abbasi,

582 U.S. 120 (2017) ............................................. 12

Statutes

42 U.S.C. § 1983 .................................................. 1, 3, 8

INTRODUCTION

St. Louis County police officers Mark Jakob and

Alex Maloy chased Mikel Neil at speeds exceeding 90

mph because he drove through a red light. When their

maneuvers caused Mr. Neil to crash into a tree, the

officers fled the scene without calling for help or

otherwise providing any aid. Mr. Neil died as a result.

Respondent Clara Cheeks, Mr. Neil’s mother, sued

the two officers under 42 U.S.C. § 1983, alleging that

their failure to aid her son violated his rights under

the Due Process Clause. The district court denied the

officers’ motion for summary judgment based on

qualified immunity, holding that the factual record,

viewed in the light most favorable to Ms. Cheeks,

showed that the officers violated clearly established

law when they ignored Mr. Neil’s serious medical

need. The Eighth Circuit affirmed.

The petition should be denied. Petitioners agree

that the law is clearly established that officers owe a

duty to aid persons injured while being apprehended

by them and that an officer’s deliberate indifference to

the person’s serious medical need violates the person’s

constitutional right to be rendered aid. They ask this

Court, however, to consider whether this clearly

established duty is excused absent proof that the

injured person was still alive. That issue was waived

below and, moreover, is not presented on the factual

record here. In addition, petitioners do not suggest a

conflict on the issue, and it is not clearly included

within the petition’s questions presented.

Petitioners also dispute the Eighth Circuit’s ruling

that the officers were deliberately indifferent to Mr.

Neil’s serious condition, arguing that “medical

evidence” of “detrimental effect” was required to

2

support the finding that Mr. Neil had an objectively

serious medical need. As the court below held, because

Mr. Neil crashed at high speed into a tree, his serious

medical need was obvious; no medical evidence of

detrimental effect was needed to show the objective

seriousness of Mr. Neil’s condition. The Eighth

Circuit’s decision does not conflict with any decision of

any court of appeals. And petitioners’ disagreement on

the court’s application of well-settled law to the

factual record does not warrant review.

STATEMENT

Factual Background

On the night of August 10, 2018, St. Louis County

police officers Mark Jakob and Alex Maloy, driving at

speeds up to 94 miles per hour, chased Mikel Neil for

allegedly running a red traffic light. Pet. App. 2a–3a;

see C.A. App. 649. To end the chase, the officers

performed a Precision Immobilization Technique

(PIT) maneuver, using their “vehicle to make

intentional contact with [Mr. Neil’s] vehicle to force an

end to the pursuit.” Pet. App. 3a n.4. As a result, they

struck Mr. Neil’s car, causing it to spin out of control

and crash into a tree. Id. at 3a. An eyewitness to the

crash “testified that he witnessed Jakob and Maloy’s

police car bump the side of Neil’s car, causing it to go

into a spin.” Id. at 28a. A second witness testified that

he observed the police car within a car length of Mr.

Neil’s vehicle before Mr. Neil crashed into the tree.

C.A. App. 1162–63. And another person testified that

others at the crash scene “yell[ed]… why did they PIT

that vehicle.” Id. at 845.

The officers did not stop after causing Mr. Neil to

crash into the tree. They “did not render aid or call for

medical assistance.” Pet. App. 3a. Instead, they

3

turned off the police lights on their vehicle and fled

the scene, as shown by video footage from a nearby

store. Id. at 28a. Although the officers dispute that

they executed a PIT maneuver and deny witnessing

the crash, an investigation conducted by the Missouri

State Highway Patrol that “used … surveillance

video, GPS data, and crash scene information to

recreate the crash” concluded that they “did, or should

have, witnessed the crash.” C.A. App. 646, 651.

Nonetheless, the officers did not render aid or call for

assistance, but instead drove away. A bystander

called 911. Pet. App. 3a.

Approximately an hour later, the two officers

returned to the scene, having been ordered by their

supervisor to do so. C.A. App. 646, 811, 822–23. They

returned in a different vehicle, and they claimed that

they had been on patrol in a different area at the time

of the crash. Id. at 646, 829–30. After speaking with

the two officers when they returned, the supervisor on

the scene suspected them of wrongdoing. Id. at 828.

Both Mr. Neil and his passenger died at the scene

of the crash. Pet. App. 3a; C.A. App. 646.

Several months later, after investigating the

officers’ conduct, the St. Louis County Police

Department fired the two officers. The Department

investigation found that they had “witnessed the

crash and failed to take appropriate action by means

of rendering aid[] and requesting emergency medical

services to the scene” and that they had violated

several Department policies in their pursuit and

subsequent neglect of Mr. Neil. C.A. App. 646, 651.

Proceedings Below

A. Ms. Cheeks sued the two officers under 42

U.S.C. § 1983, alleging among other things that they

4

failed to provide emergency aid to her son in violation

of the Due Process Clause of the Fourteenth

Amendment.1

The two officers moved for summary judgment on

the ground that they were entitled to qualified

immunity. The district court denied the motion,

explaining that their arguments “rely heavily on

factual claims that the parties dispute—specifically,

whether Maloy and Jakob were aware of the crash and

whether they could have done anything to prevent

Neil’s death.” Pet. App. 28a. The court held that

“[v]iewing the facts in the light most favorable to

Plaintiff, a reasonable jury could conclude that Maloy

and Jakob were aware of the crash, and that their

failure to call for emergency medical assistance

violated Neil’s constitutional right under the

Fourteenth Amendment.” Id. at 35a. In addition, the

court held that Mr. Neil’s right to be rendered aid was

“clearly established” in light of precedent holding that

“an officer does have an obligation to render aid” in

circumstances like the ones leading to Mr. Neil’s death

and that “an officer runs afoul of the Eighth or

Fourteenth Amendment where she does nothing in

response to a manifestly serious medical need.” Id. at

37a.

B. The officers appealed, and the Eighth Circuit

affirmed. Id. at 2a. The court of appeals explained that

it could not “second-guess” the district court’s factbound determinations that a reasonable juror could

find that the officers had performed a PIT maneuver

––––––––––––––––––––––––

1 Ms. Cheeks also alleged claims against other defendants, which

have been dismissed. In addition, Officer Maloy’s father Frank

Maloy has been substituted as a defendant for Officer Maloy, who

has passed away. Pet. App. 2a n.1.

5

causing Mr. Neil to crash into a tree and that the

officers “had actual knowledge of Neil’s serious

medical need and disregarded it.” Id. at 7a; id. at 7a–

8a (stating that the contention that the officers

“performed a PIT maneuver is not so blatantly

contradicted by the record that no reasonable jury

could believe it” (cleaned up)).

The Eighth Circuit also rejected the officers’

argument—made for the first time on appeal—that

they did not violate Mr. Neil’s rights because Mr. Neil

was not in custody for purposes of the Fourteenth

Amendment. Id. at 8a. The court stated that the

officers’

conduct—“intentionally

conducting

a

maneuver that causes a vehicle to spin out and collide

with a tree”—placed Mr. Neil in custody by “limiting

[Mr. Neil’s] ‘freedom to act on his own behalf.’” Id. And

it explained that “[w]hen the state limits an

individual’s ‘freedom to act on his own behalf,’ by

purposely causing a car accident, a clearly established

duty arises ‘to provide medical care to persons … who

have been injured while being apprehended by the

police.’” Id. at 10a (internal citation omitted).

Further, the court rejected the officers’ argument

that they did not violate Mr. Neil’s constitutional right

to be rendered aid because “there was no medical

evidence that the delay in aid detrimentally altered

Mr. Neil’s outcome.” Id. at 6a; see id. at 10a. The court

explained that a claim alleging delayed medical

treatment requires proof of detrimental effect because

“‘the objective seriousness of the deprivation” is

measured in part “by reference to the effect of delay in

treatment.” Id. at 10a–11a. Because, however, Ms.

Cheeks alleged that “the officers failed to render any

aid, rather than simply delaying in providing it,” the

objective seriousness of Mr. Neil’s medical need “does

6

not require Cheeks to demonstrate the detrimental

effect of the lack of aid.” Id. at 12a. Indeed, because

Mr. Neil crashed into a tree at high speed, the

seriousness of his medical condition would have been

obvious to any layperson. Therefore, the court of

appeals “agree[d] with the district court that, viewed

in the light most favorable to Cheeks, she has shown

a clearly established constitutional violation.” Id.

Dissenting, Judge Stras wrote that it was not

clearly established that the Constitution created a

duty to aid for a person who was “seized by force but

… not taken into custody.” Id. at 13a. Judge Stras did

not dissent on the holdings that an officer has a clearly

established duty to aid a person who is injured while

being apprehended and that it is clearly established

that no evidence of detrimental effect is needed when

no aid is provided at all.

The officers’ petition for rehearing and rehearing

en banc was denied, with no judge calling for a vote.

REASONS FOR DENYING THE WRIT

Petitioners ask this Court to review the Eighth

Circuit’s straightforward application of wellestablished law on the duty to render aid. They do not

claim a conflict among the circuits, and they do not

claim that the court of appeals overlooked relevant

law of this Court. Petitioners agree that police officers

owe a clearly established duty to aid individuals

injured while being apprehended by the police, and

they agree that the court utilized the proper test—the

deliberate-indifference test—to examine the failureto-aid claim. Petitioners argue, however, that the

court got it wrong when it held that disputed facts

precluded summary judgment for petitioners when

looked at in the light most favorable to the non-moving

7

party. That disagreement does not warrant this

Court’s review.

I. The law is clearly established that an

individual has a right to be rendered aid

when injured while officers are seeking to

apprehend him.

As the court of appeals explained, and as

petitioners agree, “[w]hen the state limits an

individual’s ‘freedom to act on his own behalf,’ by

purposely causing a car accident, a clearly established

duty arises ‘to provide medical care to persons ... who

have been injured while being apprehended by the

police.’” Pet. App. 10a (quoting first, DeShaney v.

Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189,

200 (1989), and second, City of Revere v. Mass. Gen.

Hosp., 463 U.S. 239, 244 (1983)); see Pet. 5 (quoting

City of Revere, 463 U.S. at 244). Petitioners do not

dispute that “intentionally conducting a maneuver

that causes a vehicle to spin out and collide with a

tree” placed Mr. Neil in custody, giving rise to a duty

to provide aid. Pet. App. 8a.

Petitioners argue, however, that this clearly

established duty to aid does not exist absent proof that

the injured person was alive when the officers ignored

his serious medical need. To begin with, petitioners do

not claim a conflict among courts on the issue, and it

is not clearly encompassed in the petition’s two

questions presented. Both questions concern the

impact of medical aid had it been provided: The first

question asks whether the affirmative provision of

medical aid would have “altered the outcome,”

whereas the second question asks whether the denial

of medical aid had “a detrimental effect.” Pet. i.

Neither clearly includes the issue whether a person’s

8

status as alive or dead means that person has (or

lacks) constitutional rights that may be vindicated

through a section 1983 cause of action.

Moreover, the issue is unsuitable for review

because it was not argued below: Petitioners did not

argue in the district court that Mr. Neil lacked due

process rights or was not a “person” within the scope

of section 1983. They raised the issue for the first time

in a footnote on appeal, see Pet. C.A. Br. 27 n.8, and

not surprisingly, therefore, the court of appeals did

not address it. See Copeland v. ABB, Inc., 521 F.3d

1010, 1015 n.5 (8th Cir. 2008) (stating that an

“argument is waived because [the appellant] did not

raise it before the district court”); see also Cutter v.

Wilkinson, 544 U.S. 709, 718 n.7 (2005) (declining to

consider an argument not addressed below because

this Court is “a court of review, not of first view”).

Finally, the issue is not presented here for the

additional reason that there has been no factual

finding that Mr. Neil was deceased at the time the

officers fled the scene, ignoring his serious medical

condition. Rather, the parties disputed whether Mr.

Neil was dead or alive immediately after the crash,

and the district court did not reach the question. See

also C.A. App. 9 (alleging in the complaint that Mr.

Neil was “alive and breathing immediately following

the crash”); id. at 1059–65 (witness testimony that

Mr. Neil had “a faint pulse” immediately after

crashing into the tree, that the witness observed his

“chest and his stomach area … going up and down a

little bit,” and that the witness heard the paramedic

at the scene “stat[ing] that he’s still with us”).

9

II. The decision below correctly held that the

two officers were deliberately indifferent to

Mr. Neil’s objectively serious medical need.

A. It is clearly established that to prove a failureto-aid claim, the plaintiff must show that the officer

“exhibited ‘deliberate indifference’ to [the person’s]

‘serious’ medical needs.” DeShaney v. Winnebago

Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 198 n.5 (1989)

(quoting Estelle v. Gamble, 429 U.S. 97, 105–06

(1976)); see City of Revere, 463 U.S. at 244. Such a

claim has “subjective and objective requirements.”

Farmer v. Brennan, 511 U.S. 825, 846 (1994). The

subjective prong requires proof that the officer “knows

of and disregards” a serious condition. Id. at 837. The

objective prong requires proof of an “objectively[]

‘sufficiently serious’” condition; for example, that the

person is subject to “conditions posing a substantial

risk of serious harm.” Id. at 834.

There is no question that the decision below

adhered to these precedents. The court of appeals

stated that “[t]he plaintiff must show (1) ‘an

objectively serious medical need,’ … (2) ‘that the

defendant knew of and yet deliberately disregarded.’”

Pet. App. 6a (quoting Reese v. Hale, 58 F.4th 1027,

1030 (8th Cir. 2023)). Citing its well-settled law, the

court explained that, in satisfying the objective

requirement, a “serious medical need is ‘one that has

been diagnosed by a physician as requiring treatment,

or one that is so obvious that even a layperson would

easily recognize the necessity for a doctor’s

attention.’” Id. at 10a (quoting Camberos v. Branstad,

73 F.3d 174, 176 (8th Cir. 1995)). And the court of

appeals correctly explained that its role was not to

“second-guess” the district court’s fact-bound

determinations that a reasonable jury could find that

10

the officers intentionally caused Mr. Neil to crash into

a tree and “had actual knowledge of Neil’s serious

medical need and disregarded it.” Id. at 7a; see id. at

7a–8a.

The fact-specific decision below is correct, and it is

not in tension with any decision of this Court or the

courts of appeals.

B. Petitioners agree that the deliberateindifference test is the correct test governing a failureto-aid claim. And they do not dispute that the facts,

when taken in the light most favorable to Ms. Cheeks,

demonstrate that the “subjective” prong of the

deliberate-indifference test was met—that is, that

petitioners “knew of and yet deliberately disregarded”

Mr. Neil’s serious condition. Pet. App. 6a (quoting

Reese, 58 F.4th at 1030). Arguing that Ms. Cheeks

must provide “verifiable medical evidence” showing

“detrimental effect” from the officers’ decision to drive

away, petitioners dispute only the court’s finding that

the objective requirement was met. Pet. 6.

As the court of appeals has “repeatedly

emphasized,” however, “[t]o constitute an objectively

serious medical need or a deprivation of that need, the

need or the deprivation alleged must be either obvious

to the layperson or supported by medical evidence, like

a physician’s diagnosis.’” Aswegan v. Henry, 49 F.3d

461, 464 (8th Cir. 1995) (emphasis added). That is, “[a]

medical need that would be obvious to a layperson

makes verifying medical evidence unnecessary.”

Schaub v. VonWald, 638 F.3d 905, 914 (8th Cir. 2011);

see Roberson v. Bradshaw, 198 F.3d 645, 648 (8th Cir.

1999) (holding that the plaintiff did not need

“verifying medical evidence” where his “serious

11

physical conditions … would have been obvious to a

layman”).

The district court held, and the court of appeals

agreed, that a reasonable jury could find that the

officers saw Mr. Neil crash into a tree at high speed.

See Pet. App. 7a–8a; id. at 34a. In that circumstance,

Mr. Neil’s medical need was “so obvious that even a

layperson would easily recognize the necessity for a

doctor’s attention.” Id. at 34a (quoting McRaven v.

Sanders, 577 F.3d 974, 982 (8th Cir. 2009). Indeed,

“[i]t is difficult to imagine in what circumstances one’s

medical needs would be” obvious to a layperson “if a

high-speed car crash does not qualify.” Id.

Moreover, as the court of appeals explained,

petitioners’ insistence on evidence of detrimental

effect, even in the face of an obvious medical need,

relies on cases concerning delayed medical treatment,

rather than cases concerning denial of medical

treatment. Pet. App. 11a; see, e.g., Pet. 8 (citing Bailey

v. Feltmann, 810 F.3d 589 (8th Cir. 2016), which

concerned alleged harm “from the delay caused by [the

defendant’s] failure to arrange a hospital visit the day

before,” id. at 594). The court explained that where

delay is the alleged deprivation, “the objective

seriousness of the deprivation” is measured by the

“effect of delay in treatment.” Pet. App. 10a–11a. This

is because “delay-of-treatment claims involving

‘sophisticated medical question[s],’ which are not

‘within the common understanding of the jury or the

court’ or are not ‘so obvious that a layperson would

easily recognize’ the need for medical treatment,

require additional evidence of causation or a

‘detrimental effect’ resulting from the official’s

misconduct.” Id. at 34a (district court opinion, quoting

Redmond v. Kosinski, 999 F.3d 1116, 1121 (8th Cir.

12

2021)). Here, though, petitioners did not delay

providing aid to Mr. Neil; they did nothing at all to aid

him. And, as both the appellate and trial courts

explained, in denial-of-care cases, proof of detrimental

effect is not required to show an objectively serious

medical need. Id. at 12a (citing Jones v. Minn. Dep’t of

Corr., 512 F.3d 478 (8th Cir. 2008)); id. at 34a. Where

the objective seriousness is obvious, no “additional

evidence of causation or a ‘detrimental effect’

resulting from the official’s misconduct” is needed. Id.

at 34a. Petitioners cite no denial-of-treatment case to

the contrary.2

Petitioners suggest that the law is not “clearly

established” that medical evidence is not required in

these circumstances as to the “fact pattern present”

here. Pet. 8. But the rule “that an official loses

qualified immunity only for violating clearly

established law” refers to “‘whether the violative

nature of particular conduct is clearly established,’”

Ziglar v. Abbasi, 582 U.S. 120, 151 (2017) (emphasis

added)—not to the type of evidence needed to prove

the conduct. And here, no “verifiable medical

evidence” was required, Pet. 6, where Mr. Neil’s

serious medical need after the high-speed crash was

“so obvious that even a layperson would easily

recognize the necessity for a doctor’s attention,” Pet.

App. 34a (quoting McRaven, 577 F.3d at 982); see also

id. at 3a (noting that a bystander did, in fact, call 911).

––––––––––––––––––––––––

Contrary to petitioners’ suggestion, see Pet. 7, Jones

involves a straightforward application of the objective

requirement in a denial-of-care claim. See 512 F.3d at 482–83

(considering whether the “medical need [was] objectively serious”

and ruling that it was “not a sufficiently obvious medical issue”).

2

13

In short, when petitioners caused Mr. Neil to crash

at high speed into a tree, Mr. Neil’s serious medical

need was obvious. See id. at 34a (explaining that

“[w]hether emergency medical assistance was needed

under such circumstances is far from a ‘sophisticated

medical question”). The law clearly establishing that

officers owe a duty to render aid to those injured while

being apprehended provided the officers with notice

that they could not ignore Mr. Neil’s objectively

serious medical need. The petition presents no issue

warranting review.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

CHRISTOPHER B. BENT

LAW OFFICE OF

CHRISTOPHER BENT, LLC

111 West Port Plaza Drive

Suite 850

St. Louis, MO 63146

(314) 439-0287

WENDY LIU

Counsel of Record

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

wliu@citizen.org

Attorneys for Respondent

January 2024