Opposition Brief — Gaigalas v. Buffington (Nos. 90-1123, 90-1071)

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‘ —

Supreme

FILED

(Zz) FEB 12 1991

No. 90-1123 | OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

DONALD GAIGALAS AND RONALD L. TUCKER,

Petitioners,

Vv.

BARBARA BUFFINGTON AND DAVID BUFFINGTON,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF IN OPPOSITION

WILLIAM F. GATELY

DANIEL W. WHITNEY *

SEMMES, BOWEN & SEMMES

250 West Pratt Street

Baltimore, Maryland 21201

(801) 589-5040

* Counsel of Record Counsel for Respondents

ee ee ee eee

WILSON - Erpgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

pe Be hy cs | ii

STATEMENT OF THE CASE ......0000000....0000000.o.eeee. 1

SUMMARY OF ARGUMENT .....W00002000...e ee 1

REASONS FOR DENYING THE PETITION ......... 2

I. THE OFFICERS’ DUE PROCESS ARGU-

MENT SHOULD NOT BE CONSIDERED

BECAUSE IT WAS NOT RAISED OR LITI-

GATED IN THE LOWER COURTS .................... 2

A. The Fourth Circuit Correctly Analyzed The

Duty Owed To Known Suicidal Detainees.... 11

II. THE QUALIFIED IMMUNITY DEFENSE

WAS NOT PRESERVED AT TRIAL ................ 15

NUTT lasting tacctecte cosas ected hedeihitaiekdabeneedsepiitntasis 28

TABLE OF AUTHORITIES

CASES: Page

Anderson v. Creighton, 483 U.S. 6385 (1987) -......... 16

Belcher v. Oliver, 898 F.2d 32 (4th Cir. 1990) ........ 14

Bell v. County of Washington, 741 ae 1854

CEDD.. Bape: SIRI ethic Seth catch sete ns 14

Bell v. Wolfish, 441 U.S. 520 (1979) . a ESE 13

Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977) .... 8

Brewer v. Perrin, 182 Mich. App. 520, 349 N.W.2d

Re a ee ee nee ener 15

Burns v. City of Galveston, 905 F.2d 100 (5th Cir.

1990) .. 14

City of Springfiela v. Kibbe, 480 U.S. 257 (1987) . 10

Colburn v. Upper Darby Township, 888 F.2d 663

(8d Cir. 1988), cert. denied, 489 U.S. 1065

€ EE RET EM: UREN Re RT a sO 14

Collinson v. Gott, 895 F.2d 994 (4th Cir. 19960) ...... 16

Danese v. Asman, 875 F.2d 1289 (6th Cir. 1989),

cert. denied, 110 S.Ct. 1478 (1990) ............... 8, 15, 26, 27

Daniels v. Williams, 474 U.S. 827 (1986) -............... 6

Darling v. Augusta Mental Health Institute, 535

PE FB, PERE eee 15

Davidson v. Cannon, 474 U.S. 344 (1986) -............. 6

DeShaney v. Winnebago County Depart. of Social

Services, 489 U.S. 189 (1989) ................---2002.--.--- 3, 23

Dorman v. District of Columbia, 888 F.2d 159

Ca ees SD aacticsccian ie cpalinadenin Reseaieccitinnaerniemenesinns 27

Dow Chemical Corp. v. Weevil-Cide Co., Ine., 897

F.2d 481 (10th Cir. 1900) .................................... 21

E.E.0O.C. v. State of Del. Dept. of Health & Social

Services, 865 F.2d 1408 (3d Cir. 1989) -............. 21

Edwards v. Gilbert, 867 F.2d 1271 (11th Cir.

I cca antes ihre ab idiidigtiitnaietcteestosninsimnncioen 14

Estelle v. Gamble, 429 U.S. 97 (1976) .................... 8,13

Federal Savings & Loan Ins. Corp. v. Reeves, 816

Fe re ee Gs ER kisi iin ccinincnen 20

Freedman v. City of Allentown, 853 F.2d 1111 (3d

CORD, TI icienteedettaribeneiai acti tN i 27

Gagne v. City of Galveston, 805 F.2d 558 (5th Cir.

1986), cert. denied, 483 U.S. 1021 (1987) .......... 27

Greason v. Kemp, 891 F.2d 829 (11th Cir. 1990) -... 27

iii

TABLE OF AUTHORITIES—Continued

Page

Guglielmoni v. Alexander, 583 F.Supp. 821 (D.

EE ESTAS 5) 15 2 res a a 15

Harlow v. Fitzgerald, 457 U.S. 800 (1982) -.......... 15

Heller v. Champion Int’l Corp., 891 F.2d 482 (2d

i Si pasiecdissatnemanneqnanennces 21

Hilord Chemical Corp. v. Ricoh Electronics, Inc.,

876 F.2d 82 (2d Cir. 1969) .................................... 21

Holland v. Breen, 623 F.Supp. 284 (D. Mass.

a teenecosacgnnmmmoeapmecs 14

Ingraham v. Wright, 430 U.S. 651 (1977) .............. 13

Inmates of Allegheny City Jail v. Pierce, 612 F.2d

Ce a sidesemienbnrncecst 8

Jackson v. City of Chicago, 645 F.Supp. 926 (N.D.

Ill. 1986) CT Re TERE RG RS Seed a a 14

Jungels v. Pierce, 825 F.2d 1127 (7th Cir. 1987) .... 25

Karns v. Emerson Elec. Co., 817 F.2d 1452 (10th

ERE SEES SOR SOS Epa Re ROC ae A 21

Kinzenbaw v. Deere & Co., 741 F.2d 383 (Fed. Cir.

1984), cert. denied, 470 U.S. 1004 (1985) ......... 21

Kuehne & Nagel (AG & Co.) v. Geosource, Inc.,

874 F.2d 288 (6th Cir. 1989) .....................0000000..... 21

Leer v. Murphy, 844 F.2d 628 (9th Cir. 1988) ........ 25

Lewis v. Parish of Terrebone, 894 F.2d 142 (5th

REE SNES SEE SEE SRY SR 14, 27

Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978),

cert. denied, 446 U.S. 928 (1980) ............02200000. 13

Madden v. City of Meriden, 602 F.Supp. 1160 (D.

a citiemmannce 14

Miga v. City of Holyoke, 398 Mass. 348, 497 N.E.

dene areuupsemnecs 15

Miree v. De Kalb County, 433 U.S. 25 (1977)........ 10

Mitchell v. Forsyth, 472 U.S. 511 (1985) —.............. 16

Morrison v. City of Baton Rouge, 761 F.2d 242

a eseienonannce 25

Partridge v. Two Unknown Police Officers, 791

BP I IN DD oni cisn cn nnsccmesecssesovaccccssed 8, 14, 24

Pignons S.A. de Mecanique v. Polaroid Corp., 701

f oe Ls Ss aan 25

Rakovich v. Wade, 850 F.2d 1180 (7th Cir. 1988) .. 20

TABLE OF AUTHORITIES—Continued

Page

Revere v. Massachusetts General Hospital, 463 U.S.

| RRC Tea re ea se 13

Roberts v. City of Troy, 773 F.2d 720 (6th Cir.

DN cil a i al a 14

Seiler v. City of Bethany. 746 P.2d 699 (Okl. App.

I tintiphcetentliinidniiiap lias cniiienii : 15

State Bank of St. Charles v. Camic, 712 F.2d 1140

(7th Cir.), cert. denied, 464 U.S. 995 (1983).... 18, 27

Strandell v. Jackson County, 634 F.Supp. 824 (S.D.

Bs Siti dean eaiianeeeiditientiniitinnes 14

Systemized of New England, Inc. v. SCM, Inc.,

Rf RB EG Le | | See ee naeeeN 21

Tallahassee Mem. Regional Med. Center v. Bowen,

815 F.2d 1485 (11th Cir. 1987), cert. denied, 485

Rn RR a 25

Tights, Inc. v. Acme-McCrary Corp., 541 F.2d 1047

SS SNES E Se errr ee CR 6, 20

United States v. Zannino, 895 F.2d 1 (1st Cir.),

cert. denied, 110 S.Ct. 1814 (1990) -.....00002.. 25

Waldrop v. Evans, 871 F.2d 1030 (11th Cir. 1989) .. 14

Wells Real Estate, Inc. v. Greater Lowell Bd. of

Realtors, 850 F.2d 803 (1st Cir.), cert. denied,

SE a TI a ciicinscttiticincitnteaseninsinaeinidinacognennsnnnnn 8

Wellman v. Faulkner, 715 F.2d 269 (7th Cir.

1983), cert. denied, 468 U.S. 1217 (1984) ........... 8

Youngberg v. Romeo, 457 U.S. 307 (1982) ............. 13

STATUTES AND RULES:

EE 18

Ee ee ee passim

TI IG a caninancrtnsenivsinawetanenntnanatenscn’ 20

i I i ints nediamemictinnensoninn 9

NS 25

IN THE

Suprenve Court of the United States

OCTOBER TERM, 1990

No. 90-1123

DONALD GAIGALAS AND RONALD L. TUCKER,

= Petitioners,

BARBARA BUFFINGTON AND DAVID BUFFINGTON,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals {

for the Fourth Circuit

BRIEF IN OPPOSITION

Respondents, Barbara Buffington and David Buffing-

ton, respectfully request that the petition for issuance of

a writ of certiorari be denied.

STATEMENT OF THE CASE

Barbara Buffington and David Buffington, respondents

herein, adopt and incorporate by reference their “State-

ment of the Case” previously submitted in connection

with their Petition for a Writ of Certiorari (No. 90-

1071) which was filed on January 3, 1991.

SUMMARY OF ARGUMENT

Both questions presented by the officers were not raised

or litigated in the district court. For the first time since

the inception of this litigation, the officers’ Petition con-

tends that the Due Process Clause affords no protection

to a person in police custody who is known to be on the

verge of suicide. In the district court, however, the offi-

cers at all times conceded that they had the duty to pro-

tect persons in their custody who are known to be sui-

cidal. Instead, the officers’ defense at trial, as consis-

tently advocated by their trial counsel, was that the offi-

cers did not know that James Buffington was suicidal,

and therefore they could not be found deliberately in-

different to his serious medical needs.

Even if petitioners had properly preserved the issue,

it is clear that the Fourth Circuit properly held, in con-

formity with uniform federal decisiona) law, that police

officers have a constitutional duty not to be deliberately

indifferent to a person in their custody who is known to

be suicidal and in need of emergency intervention.

The second question raised by petitioners was aiso not

properly preserved for consideration by this Court. The

qualified immunity defense was not raised in pretrial

motions, and was not asserted by the officers when they

unsuccessfully moved at trial for a directed verdict. The

Fourth Circuit correctly found that the officers failed to

preserve the issue for appellate review. Moreover, in the

factual context. of this case, the defense is inapplicable.

The defense does not apply to this case because the offi-

cers conceded that they had the duty to safeguard a de-

tainee who was known to be suicidal. Thus, this case

does not present the issue of whether police officers have

the duty to screen prisoners in order to detect latent

suicidal tendencies.

REASONS FOR DENYING THE PETITION

I. THE OFFICERS’ DUE PROCESS ARGUMENT

SHOULD NOT BE CONSIDERED BECAUSE IT

WAS NOT RAISED OR LITIGATED IN THE LOWER

COURTS

Officers Gaigalas and Tucker assert that the Fourth

Circuit erred in holding that police officers have a consti-

tutional duty not to be deliberately indifferent to a de

tainee known to be suicidal and in need of emergency

psychiatric care. Petitioners take issue with the Fourth

Circuit holding that the jury was properly instructed

that they could find the officers liable under § 1983 “if

it found that they knew that Buffington was suicidal and

in need of emergency intervention, but nevertheless acted

with deliberate indifference in failing to take any steps to

prevent the suicide.” Petition Appendix at p. 10. The

officers contend that this holding is “inconsistent with

this Court’s decision in DeShaney v. Winnebago County

Department of Social Services, 489 U.S. 189 (1989).”

Petition at p. 10. Officers Gaigalas and Tucker assert

that Buffington’s suicide resulted from his own private

conduct, and therefore they had no constitutional duty to

protect him from suicide. Petition at p. 10. The officers

assert that the Fourth Circuit erred in focusing on the

fact of custody as opposed to the “source of the harm”:

Focusing on the fact that Buffington was in the cus-

tody of the police at the time he committed his sui-

cide, the court of appeals failed to accord the neces-

sary weight to the fact that Buffington’s resolve to

commit suicide was not created or controlled by state

actors. Thus, the court ignored that portion of the

DeShaney decision that the source of the harm is a

significant factor in determining whether the State

owes an affirmative constitutional duty. ... Because

it fails to accord any weight to the fact that the

harm to Buffington resulted directly from his own

private conduct, the holding of the Fourth Circuit

is inconsistent with the constitutional principles set

forth in DeShaney.

Petition at p. 10 (emphasis original). This argument

will hereafter be referred to as petitioners’ “DeShaney-

private action” argument.

The officers also argue that the Fourth Circuit’s hold-

ing is “squarely inconsistent” with the Sixth Circuit’s

decision in Danese v. Asman, 875 F.2d 1239 (6th Cir.

1989), cert. denied, 110 S.Ct. 1473 (1990). Petition at

p. 11. According to the officers, “[i]n Danese, the Sixth

Cireuit held that, as a matter of law, there is no due

process right to be protected from suicide.” Petition at

p. 11.

The “DeShaney-private action” argument has now sur-

faced for the first time since the inception of this litiga-

tion. However, if the officers had wished to litigate this

issue, it should have been raised in the officers’ pretrial

motions to dismiss and at the required time during trial.

The officers failed to raise this issue at the following

stages of this litigation:

—It was not raised in defendants’ “Motion To Dis-

miss Or, In The Alternative, Motion For Sum-

mary Judgment” filed 1/20/88 (App. la-10a) .?

—It was not raised in defendants’ “Motion To Dis-

miss The Amended Complaint, Or In The Alterna-

tive, Motion For Summary Judgment” filed 9/8/88

(App. lla-19a).

—It was not raised in defendants’ “Motion For A

Directed Verdict And For Judgment Notwith-

standing The Verdict” filed 12/2/88 (App. 20a-

25a).

—It was not raised at the close of plaintiffs’ case

on 1/12/89 (App. 26a-28a).

—It was not raised at the close of all the evidence

in the case on 1/12/89 (App. 29a-35a).

1 The officers raise the specter that the Fourth Circuit’s holding

will require government to provide suicide-proof facilities and “‘ex-

pensive monitoring equipment.” Petition at p. 12. Actually, the

plaintiffs’ expert, Joseph Rowan, was the only witness at trial who

spoke to the issue of the expense of jail suicide prevention. Mr.

Rowan testified that “[t]raining is the most important aspect of

suicide prevention,” (Apx. 1582) and that such training is “very

inexpensive.” (Apx. 1608). References to the district court tran-

script included in the record below are styled “Apx. ——’”’.

2 References to the appendices bound with respondents’ Brief in

Opposition are styled ‘‘App. a

—EE—

—It was not raised in defendants’ exceptions on

1/17/89 to the district court’s instructions. (App.

39a-43a).

—It was not raised in “Motion Of Defendants For

A Directed Verdict And For Judgment Notwith-

standing the Verdict” filed 1/27/89. (App. 44a-

50a).

Moreover, although the officers’ Fourth Circuit appellate

brief relied upon DeShaney, and thereby raised a due

process argument for the first time, the officers’ brief

raised a materially different due process argument (dis-

cussed infra at pp. 11-12) than the one contained in the

officers’ Petition.

The officers’ defense at trial was not based on the claim

that the Due Process Clause provided no protection to a

suicidal detainee. Instead, the officers defended on the

basis that a § 1983 action could not be based on mere

negligence, and absent knowledge that Buffington was

suicidal, the officers were at most merely negligent.

Based on their negligence defense, the officers moved

for a directed verdict at the close of the evidence offered

by the Buffingtons. The officers’ trial counsel stated:

The first point is with respect to the civil rights

claim under Section 1983. The standard must be

proof of deliberate indifference of the various indi-

vidual defendants involved, including Chief Behan,

and deliberate indifference is synonymous with wan-

ton neglect, with willful misconduct in regard to the

serious medical needs of persons such as Mr. Buf-

fington.

(App. 27a). Thus at trial the officers conceded that a

“deliberate indifference” standard was applicable.* The

officers did not move for directed verdict on the basis

that Buffington’s suicide resulted from a private act

8 It should be noted that plaintiffs did not agree with the officers’

definition of “deliberate indifference.” See footnote 7, infra.

which did not implicate the protections afforded by the

Due Process Clause. Instead, the officers’ defense at trial

was premised on the notion that the Buffingtons, in real-

ity, had no more than a negligence suit, and that negli-

gence was not actionable under § 1983. In moving for a

directed verdict the officers stated:

The claims against the individual Defendants are

founded in negligence theories asserting claims un-

der Section 1983. However, since the claims are

merely for negligence, it is plain that these claims

are not actionable. See Daniels v. Williams, 106

S.Ct. 666 (1986) and Davidson v. Cannon, 106 S.Ct.

668 (1986). Further the evidence at trial in these

proceedings fail (sic) to demonstrate more than mere

negligence. At best, the testimony generated proof

only of errors of judgments or an inadvertent failure

to take appropriate action. Such conduct does not

amount to ‘deliberate indifference.’

(App. 22a). In moving for directed verdict the officers

further stated: “Evaluating the conduct of the officers as

of March 19, 1987, it is plain that the standard of delib-

erate indifference to serious medical needs is a standard

that was applicable as of that date. ... A straightfor-

ward application of the requirement of deliberate indif-

ference plainly requires a dismissal of the Federal claims

against each of the Defendants.” (App. 25a).

It is settled that the failure to raise a question in a

motion for directed verdict waives appellate review of

that issue. E.g., Tights, Inc. v. Acme-McCary Corp., 541

F.2d 1047, 1058 (4th Cir. 1976).

When the officers moved for a directed verdict at the

close of all of the evidence they again failed to assert

that a suicidal detainee such as Buffington was not en-

titled to any due process protection. Instead the officers

essentially renewed the arguments made at the close of

plaintiffs’ case. Defense counsel stated as follows:

Again with respect to Officer Gaigalas, he testified

that he knew of the emergency evaluation but not

\ eee

that the gentlemen was suicidal. There is a lack of

knowledge in his circumstances, and again there are

(sic) testimony at best generally not deliberate in-

difference but only proof of errors in judgment or

inadvertence and at best negligence, and negligence

has never amounted to deliberate indifference. In

fact, the Supreme Court held that negligence is not

actionable under Section 1983; and again the leading

cases on that are Daniels versus Williams [and]

Davidson versus Cannon. Again, in one of those

cases a correctional officer was sued because he had

not passed along a note that contained threats, and

the court held that failure to pass along was inad-

vertence. He was negligent but was not culpable

under Section 1983. ... As to all of these officers

that same standard should apply with respect to 1983.

(App. 34a). The district court reserved ruling on the

officers’ motion for directed verdict, and the case went to

the jury.

The jury was instructed as to the nature of the consti-

tutional duty owed by the officers to Buffington:

Police officers have a specific constitutional duty

to provide needed medical care to the persons within

their custody. The constitution requires that medical

care be given for psychological and psychiatric iils

as well as physical ills. The Constitution is violated

by deliberate indifference to a serious medical néed

of a detainee.

om ” a

As part of the constitutional duty to provide med-

ical care, the constitution requires that police officers

protect a detainee from committing suicide if they

are aware that the person in their custody is suicidal

and needs emergency psychiatric treatment. The

failure to do so can amount to deliberate indifference

in the constitutional sense.

Now, on the other hand, you are instructed that

those who confine a detainee cannot be placed into a

position of guaranteeing that a detainee will not

commit suicide if they have no knowledge that he is

suicidal.

(App. 37a-38a).4 These instructions were the product of

three charging conferences in which the district court

and counsel went over proposed instructions word-by-

word. (App. 39a; 43a). As a part of this tedious and

time consuming process, the district court made those

changes that “‘reflected the discussion of everyone.” (App.

43a).

After the district court instructed the jury, counsel for

the officers did not argue that the officers owed no duty

to Buffington for the reason that “his resolve to commit

suicide was not created or controlled by state actors.”’

See Petition at p. 10. Instead, counsel for the officers

objected on the basis that a suicidal detainee does not

have a serious medical need:

The law is the officers have a duty to give medical

care and not be deliberately indifferent to medical

needs. There is no constitutional standard requiring

inmates to be protected from committing suicide.

(App. 40a). “An exception on one ground cannot serve

as the basis for another, on a different ground, on ap-

peal.” Wells Real Estate, Inc. v. Greater Lowell Bd. of

Realtors, 850 F.2d 803, 809 (1st Cir.), cert. denied, 109

S.Ct. 392 (1988). The officers thus failed to comply

*There is “no sound underlying distinction between the right

to medical care for physical ills and its psychological or psychiatric

counterpart.” Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir. 1977).

The “deliberate indifference” standard of Estelle v. Gamble, 429

U.S. 97 (1976), applies both to the constitutional adequacy of psy-

chological or psychiatric care provided at a prison. Inmates of

Allegheny City Jail v. Pierce, 612 F.2d 754, 763 (3rd Cir. 1979).

Treatment of mental disorders of mentally disturbed inmates may

constitute a “serious medical need.” E.g., Partridge v. Two Un-

known Police Officers, 791 F.2d 1182, 1187 (5th Cir. 1986);

Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983), cert.

denied, 468 U.S. 1217 (1984). Additional authorities are cited in

footnotes 9 and 15, infra.

with the requirement of Fed. R. Civ. P. 51 that an ob-

jection must be specifically stated in order to preserve

the point for appellate review.

In moving for judgment notwithstanding the verdict,

the officers again failed to raise the argument that the

deliberate indifference standard did not apply to harm

resulting from Buffington’s “own private conduct.” In-

stead, the defendants argued, as they had before, that

Officers Gaigalas and Tucker were not deliberately indif-

ferent to Buffington’s serious medical needs. The mem-

orandum in support of the Motion for Judgment Not-

withstanding the Verdict stated as follows:

Further, there is no evidence that Officer Tucker

was deliberately indifferent to Mr. Buffington’s seri-

ous medical needs, or that he even had actual notice

of the nature and extent of Mr. Buffington’s medical

needs. As has been repeatedly argued throughout

these proceedings, proof of deliberate indifferent (sic)

requires evidence which clearly demonstrates know]l-

edge of the medical need in question and conduct

with respect to the prisoner and the known medical

need that wantonly or recklessly disregarded the

seriousness of the medical need. ... As to Officer

Tucker, there is no evidence that he had knowledge

of the full nature and extent of Mr. Buffington’s

emotional deterioration sufficient to require him to

intervene and overrule Officer Gaigalas’ handling of

the situation. In short, there is no conduct on his

part that was deliberately indifferent to a known

serious medical need of Mr. Buffington.

(App. 49a).

Similarly, the defense of Officer Gaigalas was singu-

larly premised on the contention that he was at best

| merely negligent:

The evidence adduced against him demonstrates

! mere errors in judgment on his part or an inad-

| vertent failure to take appropriate action by main-

! taining Mr. Buffirgton at the bar.... [T]he jury’s

verdict against Officer Gaigalas must have plainly

rested upon findings by them that he was merely

negligent in his conduct with respect to the safety

of Mr. James Buffington. :

(App. 49a-50a).5 The district court denied the defen-

dants’ motion.

Although the Buffingtons have agreed from the outset

of this case that a § 1983 action cannot be premised on

mere negligence, issue was joined at trial on the question

of whether the officers’ conduct constituted “deliberate in-

difference.” This question in turn reduced ultimately to

the question of whether the officers knew that Buffington

was suicidal prior to placing him in an unmonitored ceil.

At no time during the pretrial or trial phase of this case

did the officers dispute that a § 1983 right to relief

existed if the Buffingtons could prove deliberate indif-

ference.

Because the officers’ “DeShaney-private action” argu-

ment is made for the first time in the petition for writ

of certiorari, the Court should decline to consider it.

See, e.g., City of Springfield v. Kibbe, 480 U.S. 257, 258-

59 (1987) (“We ordinarily will not decide questions not

raised or litigated in the lower courts. ... That rule has

special force where the party seeking to argue the issue

has failed to object to a jury instruction. .. .”); Miree

v. De Kalb County, 4383 U.S. 25, 34-85 (1977) (“The

fact that this asserted basis of liability is so obviously an

afterthought may be some indication of its merit, but

since it was neither pleaded, argued, nor briefed either in

the District Court or in the Court of Appeals, we will

not consider it.”).

5 Apropos petitioners’ emphasis on the expense that supposedly

will be incurred if the Fourth Circuit’s holding is affirmed, it is

obvious that there is no cost involved in keeping a known suicidal

subject at the booking desk pending transport to the hospital for

an emergency psychiatric evaluation.

;

A. The Fourth Circuit Correctly Analyzed the Duty of

Care Owed to Known Suicidal Detainees

If the Court should find that the issue is properly pre-

sented for consideration, it is clear that the Fourth Cir-

cuit correctly disposed of this issue. Although the Buf-

fingtons had argued that the issue should not be con-

sidered in light of the fact that it was raised for the first

time on appeal (Appellees’ Brief at p. 30), the Fourth

Circuit nevertheless addressed the merits. The DeShaney

argument presented in the Fourth Circuit was a sig-

nilicantly different argument than now presented to this

Court.® As noted by the Fourth Circuit, the officers con-

tended in the circuit court that no constitutional duty was

owed to a person who was in police custody as the re-

sult of a family request for assistance as distinct from the

duty owed to a suicidal prisoner as the result of an ar-

rest for criminal violation or by virtue of a conviction.

For ease of reference, this argument is referred to as the

“DeShaney-family request/no arrest” argument. The

Fourth Circuit stated the officers’ argument as follows:

Specifically, the appellants contend that the due proc-

| ess clause of the fourteenth amendment does not re-

| quire the state to take any steps to prevent a person

in its custody from committing suicide when the

state has intervened not to enforce criminal law,

but at the request of family members to protect the

person from causing harm to himself. We reject this

| argument.

Petition Appendix at 8a. The Fourth Circuit correctly

recognized that the officers had misread DeShaney:

The appellants argue that under the rationale of

DeShaney, there was no affirmative duty of care on

the part of any state actor in this case because the

6 The officers’ Fourth Circuit brief conceded that there is a “sub-

stantial corpus of law” recoguizing the “prisoner’s or detainee’s

right to protection from suicide through the provision of medical

care and treatment.” (App. 54a).

intervention to protect Buffington was at the instance

of private parties. This is 2, misreading of DeShaney.

Distinguishing prior cases in which it had found af-

firmative constitutional duties of protection from the

situation in DeShaney, the Court explained that in

those earlier cases it was the fact of state custody

that triggered at least some duty of care on the part

of the state: ‘{W]hen the state by the affirmative

exercise of its power so restrains an individual’s

liberty that it renders him unable to care for him-

self, and at the same time fails to provide for his

basic human needs—e.g., food, clothing, shelter, med-

ical care, and reasonable safety—it transgresses the

substantive limits on state action set by the Eighth

Amendment and the Due Process Clause.’ Id. 109

S.Ct. at 1005-06 (citations omitted). Nothing in

the Court’s rationale for finding that some affirmative

duty arises once the state takes custody of an indi-

vidual can be read to imply that the existence of the

duty somehow turns on the reason for taking cus-

tody. .... Nor do we read DeShaney or other cases

as implying that it is relevant to the existence of the

duty whether a state or private actor brought the

need for custody to the state’s attention. See Young-

berg, 457 U.S. at 309, 102 S.Ct. at 2454 (involun-

tarily committed mental patient’s mother sought son’s

commitment because she was unable to care for him

or control his violence). In short, we see no basis for

adopting the categorical rule urged by appellants

that the state owed no duty of care to Buffington

under the circumstances of this case. We hold that

the due process clause did impose an affirmative ob-

ligation on the state to provide some measure of care

here.

Petition Appendix at 9a-10a. DeShaney involved a child’s

§ 1983 claim against a county department of social ser-

vices for its failure to protect him against his father’s

violence. The Supreme Court held that “a State’s failure

to protect an individual against private violence simply

does not constitute a violation of the Due Process

ee a tei

Clause.” 109 S.Ct. at 1004. The Court based its holding

on the fact that the harm to the child “did not occur

while he was in the State’s custody, but while he was in

the custody of his natural father....” Id. at 1006. This

fact distinguished the case from other situations where

the Court has found duties of care. For example, in

Estelle v. Gamble, 429 U.S. 97 (1976), the Court held

that the Eighth Amendment requires the provision of

adequate medical care to prisoners.’ The Court in De-

Shaney noted that Youngberg v. Romeo, 457 U.S. 307

(1982), similarly held that the Fourteenth Amendment

requires the State to provide involuntarily committed

mental patients with services necessary to insure their

“reasonable safety.” Jd. at 314-324. The Court also

noted the holding in Revere v. Massachusetts General

Hospital, 463 U.S. 239 (1983), that the Due Process

Clause requires government officials to provide medical

care to suspects in police custody. The Court in De-

Shaney stated that these cases “stand . . . for the prop-

osition that when the State takes a person into its cus-

tody and holds him there against his will, the Constitu-

tion imposes upon it a corresponding duty to assume

some responsibility for his safety and general well-

™In Estelle, the Court held that “deliberate indifference to a

serious medical need of a prisoner violates the Eighth Amend-

ment.” 429 U.S. at 104. “Deliberate indifference” exists when ac-

tion is not taken in the face of “a strong likelihood, rather than a

mere possibility” that failure to provide care would result in harm

to the prisoner. E.g., State Bank of St. Charles v. Camic, 712 F.2d

1140, 1146 (7th Cir.), cert. denied, 464 U.S. 995 (1983).

8 The Fighth Amendment’s protection applies only to prisoners

incarcerated as a result of a criminal conviction. Ingraham v.

Wright, 430 U.S. 651, 668-671 (1977). There exists an equivalent

substantive right under the Due Process Clause of the Fourteenth

Amendment which protects pre-trial detainees. Bell v. Wolfish,

441 U.S. 520, 535 n.16 (1979). Eighth Amendment standards are

used by analogy to determine the rights of a detainee. E.g., Loe

v. Armistead, 582 F.2d 1291 (4th Cir. 1978), cert. denied, 446

U.S. 928 (1980).

being.” 109 S.Ct. at 1005. Thus it is the fact of custody

alone whieh triggers the obligation to provide medical

care. Accordingly, in this case the officers had a consti-

tutional duty to provide Buffington with such protection.’

® The courts have uniformly recognized that § 1983 liability can

be premised on deliberate indifference to a known suicidal detainee.

See Burns v. City of Galveston, 905 F.2d 100, 103 (5th Cir. 1990)

(deliberate indifference to serious medical needs of suicidal pre-

trial detainee constitutes due process violation) ; Belcher v. Oliver,

898 F.2d 32 (4th Cir. 1990) (a jailor with knowledge of detainee’s

suicide risk can be charged with deliberate indifference) ; Lewis v.

Parish of Terrebone, 894 F.2d 142, 145 (5th Cir. 1990) (warden

at jail had clear and well-established constitutional duty to pro-

tect a prisoner prone to suicide from self-destruction) ; Waldrop

v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) (failure of prison

staff member to notify competent officials of inmate’s dangerous

psychiatric state can constitute deliberate indifference) ; Edwards

v. Gilbert, 867 F.2d 1271, 1276 (11th Cir. 1989) (deliberate in-

difference standard is met if there is a strong likelihood that self-

infliction of harm would result from failure to act); Colburn v.

Upper Darby Township, 838 F.2d 663, 668-69 (3d Cir. 1988), cert.

denied, 103 L.Ed.2d 808 (1989) (even where the acts causing the

injury were those of the prisoner, herself, police officers had duty

to protect openly suicidal pretrial detainee); Partridge v. Two

Unknown Police Officers, 791 F.2d 1181 (5th Cir. 1986) (failure to

take any steps to save openly suicidal detainee from injuring him-

self constitutes a due process violation) ; Roberts v. City of Troy,

773 F.2d 720, 724 (6th Cir. 1985) (§ 1983 claim is established when

suicidal detainee alleges that official failed to take steps in the face of

a pervasive risk of harm); Bell v. County of Washington, 741 F.

Supp. 1354, 1860 (S.D. Iowa 1990) (if jailer is aware of pris-

oner’s particular vulnerability to suicide, the Fourteenth Amend-

ment imposes the obligation on him not to be deliberately indiffer-

ent to that vulnerability) ; Jackson v. City of Chicago, 645 F. Supp.

926, 927-28 (N.D. Ill. 1986) (detainee in known state of mental

distress entitled to medical care); Strandell v. Jackson County, 634

F. Supp. 824 (S.D. Ill. 1986) (where suicidal detainee was in

obvious state of mental suffering there was a duty to provide medi-

cal care); Holland v. Breen, 623 F. Supp. 284 (D. Mass. 1985)

(complaint stated a cause of action for violation of due process

rights where pretrial detainee was in obvious danger of commit-

ting suicide); Madden v. City of Meriden, 602,F. Supp. 1160 (D.

Conn. 1985) (police officers who failed to protect detainee with

Il, THE QUALIFIED IMMUNITY DEFENSE WAS NOT

PRESERVED AT TRIAL

Petitioners further assert thut the Buffingtons’ § 1983

action against the officers “should have been dismissed

as barred by qualified immunity.” Petition at p. 14. Pe-

titioners rely upon the Sixth Circuit’s decision in Danese

v. Asman, 835 F.2d 1239 (6th Cir. 1989), cert. denied,

110 S.Ct. 1473 (1990). Petitioners assert that “[e] ven

if due process does create a constitutional duty to pre-

vent a suicide, it clearly was not a duty so firmly estab-

lished in 1987 that liability can be imposed for breach

of that duty by these officers.” Petition at p. 14. The

officers contend that the Buffingtons’ § 1983 claims are

barred by qualified immunity and that the Fourth Cir-

cuit erred when it found that the defense had been

waived.

Prior to addressing whether the officers preserved the

defense of qualified immunity, a brief discussion of the

elements of this defense will provide some context to the

waiver issue. An analysis of the qualified immunity de-

fense begins with Harlow v. Fitzgerald, 457 U.S. 800

(1982). In Harlow the Supreme Court held that “gov-

ernment officials performing discretionary functions gen-

erally are shielded from liability for civil damages inso-

known history of suicide liable for violation of due process rights) ;

Guglielmoni v. Alexander, 583 F. Supp. 821 (D. Conn. 1984) (con-

stitutional duty exists to protect openly suicidal inmate from him-

self); see also Darling v. Augusta Mental Health Institute, 535

A.2d 421 (Me. 1987) (deputy sheriffs had duty to provide for

openly suicidal inmate’s serious medical needs); Seiler v. City of

Bethany, 746 P.2d 699 (Okl. App. 1987) (prison officials had duty

to provide for serious medical needs when faced with strong likeli-

hood of prisoner’s suicide); Miga v. City of Holyoke, 398 Mass.

343, 497 N.E.2d 1 (1986) (police officer’s conduct in failing to

protect openly suicidal pretrial detainees could constitute deliberate

indifference in violation of due process rights); Brewer v. Perrin,

132 Mich. App. 520, 349 N.W.2d 198 (1984) (police couid be held

liable for the failure to provide medical attention to openly suicidal

pretrial detainee).

far as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.” Jd. at 818. The Harlow

Court established an objective standard to make sum-

mary judgment appropriate where an official has violated

a plaintiff’s constitutional rights—if they were not then

“clearly established” or if a “reasonable person” in the

official’s position could have failed to understand that his

conduct violated that right. Anderson v. Creighton, 483

U.S. 635, 640 (1987); Mitchell v. Forsyth, 472 U.S. 511,

535 (1985). A qualified immunity defense thus has three

aspects to it:

In analyzing a claim of qualified immunity it is

therefore necessary first to identify the specific con-

stitutional right allegedly violated, then to inquire

whether at the time of the alleged violation it was

clearly established, and then further to inquire

whether a reasonable person in the official’s position

- would have known that his conduct would violate that

right.

Collinson v. Gott, 895 F.2d 994, 998 (4th Cir. 1990)

(Phillips, J., concurring). With these basic principles in

mind, the analysis can now turn to whether the officers

actually raised a qualified immunity defense in this case.

The defense of qualified immunity was not raised in

their first responsive pleading. The officers’ two-page

“Motion to Dismiss or, In the Alternative, Motion for

Summary Judgment” reveals no discussion of qualified

immunity. (App. la-2a.) In fact, the words “qualified

immunity” are absent. Although the memorandum ac-

companying that motion did cite Harlow, the officers fo-

cused exclusively upon the absence of a constitutional

duty to protect latently suicidal detainees. (App. 4a).

The officers argued that a latently suicidal] detainee had

no constitutional right to be protected from committing

suicide while in police custody. This argument was based

on a gross misreading of the Buffingtons’ Complaint (see

Apx. 26-34), which manifestly alleged that James Buf-

fington was openly and obviously suicidal while in police

custody. Their motion proceeded to mischaracterize the

Complaint as alleging a duty to discover and protect

against a detainee’s /atent suicidal tendencies. (App. 4a-

8a). Based on this false premise, they argued that the

Complaint alleged mere negligence and for that reason

failed to state a due process violation. (App. 9a-10a).

The officers’ memorandum in support of summary judg-

ment stated that, in order for the Buffingtons to have a

viable § 1983 action, “the Plaintiffs must allege facts

sufficient to present a clearly established constitutional

duty to discover the /atent suicidal tendencies of the De-

ceased and/or to deprive the Deceased of the means of

taking his own life.” (App. 4a) (emphasis added). In a

strained effort to portray this case as one of mere neg-

ligence, their memorandum then repeatedly denied that

James Buffington had any serious medical needs or that

he was at risk to commit suicide. (App. 7a, 9a). In re-

jecting this mischaracterization of the Complaint, Dis-

trict Judge Joseph C. Howard held that the Complaint

did state a viable due process claim under § 1983 (App.

65a-68a), and that “plaintiff’s Complaint, far from de-

fendants’ characterization as latent suicidal tendencies

by Buffington, revea! that, if taken as true, the defend-

ants had ample notice of Buffington’s ability to take his

own life.” (App. 67a) (emphasis in original). Constru-

ing the allegations, the district court noted that “Buf-

fington’s suicidal tendencies were not latent; they were

ubiquitous.” (App. 68a).

The officers moved to reconsider the district court’s

ruling. The words “qualified immunity,” however, ap-

pear nowhere in their motion for reconsideration. (App.

69a-70a). In fact, the officers persisted in their argu-

ment that the Complaint alleged negligence, not an ac-

tion maintainable pursuant to § 1983. This argument

was premised on the officers’ continuing refusal to ac-

“

aii elite ellie

knowledge that the Buffingtons’ Complaint alleged that

Buffington was openly and acutely suicidal:

The Defendants respectfully disagree that the Dece-

dent, David (sic) Buffington’s suicidal tendencies

were obvious to the officers. ... He showed no in-

clination to take his own life between the time of

his apprehension and the time he was placed in the

holding cell. Given these facts, it is submitted that

none of the officers involved in arresting or process-

ing the Decedent acted in any way to deprive him of

Due Process Rights under the 14th Amendment.

There is no indication that Mr. Buffington was, in

the least, overtly suicidal during any phase of his

detention.

(App. 69a-70a) (emphasis added). Significantly, the of-

ficers then conceded that a constitutional violation would

have been stated if the officers had known that James

Buffington was openly suicidal: “Clearly, if the officers

knew of Mr. Buffington’s suicidal tendencies and had done

nothing to secure medical attention, a claimed violation of

his constitutional rights would have been stated.” (App.

70a) (emphasis added).

The motion for reconsideration was denied on July 11,

1988, Apx. 159. The officers did not seek an immediate

appeal. It was not until October, 1988 that they at-

tempted to appeal by way of a “Motion to Amend Inter-

locutory Order.” However, this attempted appeal con-

tained no reference whatsoever to a qualified immunity

defense, (App. 7la-74a). The district court denied the

motion. Approximately one week before trial, the officers

noted a second appeal pursuant to 28 U.S.C. § 1291 and

moved to stay the proceedings. Apx. 4; 220-24. The dis-

trict court denied the request for a stay, finding that de-

fendants had “never raised” the issue of qualified im-

munity. (App. 75a). Similarly, former Fourth Circuit

Chief Judge Winter declined to stay the proceedings

pending appeal. Judge Winter stated: “Because I am

in agreement with the district court that the defense of

qualified immunity has not been raised, and for the fur-

ther reason that I do not see how qualified immunity ap-

plies in this case, | concluded to deny the stay.” (App.

76a).

Contrary to the pretrial position of the defense law-

yers, the officer defendants (and other police witnesses

not named as defendants) testified uniformly of their

awareness that Buffington was openly suicidal and in im-

minent danger of self-destructive behavior. LF.g., Apx.

1341; 1875-77; 1405-07; 1414-15. In returning a verdict

against Officers Gaigalas and Tucker the jury necessar-

ily found that these officers were aware that Buffington

was openly suicidal. See Instructions (App. 38a). As

the Fourth Circuit correctly observed, the officers have

not assigned error to the refusal by the district court to

give their requested instruction on qualified immunity.

Petition Appendix at 15a.

At the close of evidence at trial the officers moved for

directed verdict. The motion did not invoke qualified im-

munity as a defense to the § 1983 claim.’® The district

court reserved ruling on the motion for directed verdict.

As the Fourth Circuit observed :

After the jury returned verdicts under § 1983 against

some of the individual defendants, those defendants

moved for j.n.o.v., asserting, inter alia, in the motion

itself that they were entitled to qualified immunity.

In their supporting brief, however, they made no ar-

gument whatsoever on this point .... As with the

refusal to give the qualified immunity instruction,

the appellants have not on appeal assigned error to

10The motion for directed verdict did assert “good faith im-

munity” as to Chief Behan. (App. 3la-32a). It also asserted,

“Cals to the state law claims” (App. 34a), the public official im-

munity of the officers applicable to nonmalicious acts. (App. 35a).

At no point in moving for directed verdict did Officers Gaigalas

(App. 34a) or Tucker (App. 33a) invoke qualified immunity as a

defense to the § 1983 claim.

near peminneatieet nen eeeanssstil

the denial of the motion for directed verdict or

j.n.o.v.

Petition Appendix at p. 15a (emphasis added).

The Fourth Circuit properly concluded, for reasons

stated, that the motion for j.n.o.v. was insufficient to pre-

serve the issue of qualified immunity as a question on

appeal. In addition, the Court of Appeals was correct for

a more fundamental reason. Unlike Rakovich v. Wade,

850 F.2d 1180, 1204 (7th Cir. 1988), on which the Peti-

tion relies so heavily (Petition at pp. 14, 15), the officers

here did not specifically assert qualified immunity in

their motion for directed verdict. (App. 33a-34a). This

failure distinguishes Rakovich and precludes appellate

review of that defense."

Rule 50(a), Fed. R. Civ. P., mandates that a “motion

for a directed verdict shall state the specific grounds

therefor.” Failure to raise an issue in a motion for di-

rected verdict will preclude its assertion in a motion for

j.n.o.v. Federal Savings & Loan Ins. Corp. v. Reeves, 816

F.2d 130, 187 (4th Cir. 1987). As mentioned earlier, the

failure to raise a question in a motion for directed ver-

dict also waives appellate review of that question.

Tights, Inc. v. Acme-McCrary Corp., 541 F.2d 1047,

1058 (4th Cir. 1976). As was explained recently:

11 After the initial mistrial, defendants filed a “Motion for a

Directed Verdict and for Judgment Notwithstanding the Verdict.”

(App. 20a-2la). The text of the motion failed to set forth

any specific ground for relief. Instead, it purported to adopt

wholesale all of the arguments advanced at the prior trial. Al-

though the accompanying memorandum uses the words “qualified

immunity,” the argument actually advanced cannot be characterized

as a bona fide qualified immunity defense. Defendants actually

stated therein (consistent with plaintiffs’ position) that: “[e]val-

uating the conduct of the officers as of March 19, 1987, it is plain

that the standard of deliberate indifference to serious medical

needs is a standard that was applicable as of that date.” (App.

25a).

AOA en ata Ce

ee Seen

ee ee can

If a party fails to specify an issue in its motion for

a directed verdict, it may not subsequently challenge

the jury’s verdict on that issue, which is conclusive

on that point. A specific reference to the issue in a

motion for judgment n.o.v. does not cure a prior

failure to include the issue in the motion for a di-

rected verdict and, thus, does not preserve the issue

for review.

Kinzenbaw v. Deere & Co., 741 F.2d 383, 387 (Fed. Cir.

1984) (citations omitted), cert. denied, 470 U.S. 1004

(1985) .?

It is significant that prior to the appeal, the officers

never asserted that an openly and obviously suicidal de-

tainee has no constitutional right to be protected from

committing suicide while in police custody. In fact, the

officers conceded below that they owed a duty to protect

openly suicidal detainees from committing suicide. They

did not argue that they were unaware of a constitutional

right “that had not yet been declared.” On the contrary,

they readily acknowledged their duty to constantly mon-

12 See Dow Chemical Corp. v. Weevil-Cide Co., Inc., 897 F.2d 481,

486 (10th Cir. 1990) (only questions raised in prior motion for

directed verdict may be pursued in motion for j.n.o.v.); Heller

v. Champion Int'l Corp., 891 F.2d 482, 436 (2d Cir. 1989) (because

motion for j.n.o.v. is a renewal of motion for directed verdict, it

cannot assert a new ground for relief); Hilord Chemical Corp. v.

Ricoh Electronic, Inc., 875 F.2d 32, 37-38 (2d Cir. 1989) (motion

for j.n.o.v. could not assert ground not included in motion for

directed verdict) ; Kuehne & Nagel (AG & Co.) v. Geosource, Inc.,

874 F.2d 283, 292 n.5 (5th Cir. 1989) (party cannot base motion

for j.n.o.v. on grounds not included in motion for directed verdict) ;

E.E.0.C. v. State of Del. Dept. of Health & Social Services, 865

F.2d 1408, 1414 n.9 (3rd Cir. 1989) (additional arguments for

j.n.o.v. not raised in directed verdict motion cannot be considered) ;

Karns v. Emerson Elec. Co., 817 F.2d 1452, 1455 n.2 (10th Cir.

1987) (grounds not raised in motion for directed verdict may not

later be raised in motion for j.n.o.v.) ; Systemized of New England,

Inc. v. SCM, Inc., 732 F.2d 1030, 1035 (1st Cir. 1984) (party may

not base its motion for j.n.o.v. on ground that was not argued in

its motion for directed verdict).

itor known suicidal detainees. They asserted that “every

police officer, summoned by Appellees to testify, already

knew [that] suicidal persons should be kept under con-

stant observation at all times and not isolated.” (App.

57a) (emphasis added).

On appeal, however, the officers abruptly changed

course. Although they finally acknowledged the over-

whelming evidence that James Buffington was openly sui-

cidal, they concocted an argument, raised for the first

time on appeal, that there was no duty to protect even

an openly suicidal person when that person “has come

into the custody of state agents as a result of a request

for emergency assistance by the family.” (App. 54a).

Prior to the filing of the petition for certiorari, the

officers have never argued that as of the date of James

Buffington’s suicide on March 19, 1987, the officers did

not know that failing to safeguard an openly suicidal

person would violate that person’s constitutional rights.

In fact, at trial, Officer Gaigalas re-affirmed his deposi-

tion testimony that, because of the extreme danger, it

would be “almost criminal” to knowingly place an obvi-

ously suicidal subject into a cell under the circumstances

of this case."* (Apx. 1410-11).

Because of the overwhelming evidence that the officers

were aware that Buffington was suicidal, the appellants

elected to reverse their field on appeal. In fact, on ap-

peal, the lead issue (as framed by the officers) was pre-

13 Because no Baltimore County police officer has ever been dis-

ciplined for failing to safeguard openly suicidal detainees, Apx.

1641, Gaigalas obviously acted with impunity in placing Buffington

in a cell. In fact, despite the inherent danger of such a rule, a

Department S.O.P. actually required placing self-destructive de-

tainees in an individual cell. (Apx. 1752). As reflected in the jury’s

verdict against Baltimore County and Chief Behan, the Police De-

partment’s exoneration of Gaigalas and Tucker, e.g., Apx. 1532;

1976, condoned their deliberate indifference towards Buffington,

and evidenced an unconstitutional policy and custom of failing to

safeguard patently suicidal detainees.

mised on the fact that the officers had an obviously sui-

cidal person in custody as a result of a request by the

detainee’s family to protect that person from suicide:

1. Is there a right which exists pursuant to the

Fourteenth [sic] Federal Constitution which guar-

antees an individual, in the police custody as a

result of a request for assistance from the fam-

ily, protection by the State from suicide?

(App. 52a).* Their brief discarded the “latent suicide”

theory:

Gaigalas’ act was done with knowledge of decedent’s

condition. (Apx. 1407-08). Despite the fact that

Gaigalas knew of other similar occurrences and

should have appreciated the consequences that might

result (Apx. 1402-05), Gaigalas still placed the dece-

| dent into the cell.

(App. 57a) (emphasis added).

Thus, on appeal the officers abandoned the argument

that Buffington was merely latently suicidal. Instead, the

officers conceived of their entirely novel “DeShaney-family

request/no arrest” argument, presented on appeal for the

first time. In essence they argued that under DeShaney

v. Winnebago County Dept. of Social Services, 489 U.S.

189 (1989), there was no duty to protect a person from

suicide “when a person has come into the custody of state

agents as a result of a request for emergency assistance

14 The officers began their own statement of facts as follows:

“On March 19, 1987, at 4:30 in the morning, James Buffington

made manifest his intention to take his own life (Apx. 1077).”

Appellants’ Br. at 5 (emphasis added). The officers’ abandonment

of the “latent suicide” theory is evident in their following sum-

mary of the facts: “Here, the record is clear that James Buffing-

ton came into the custody of Baltimore County police officers upon

the receipt of a request for emergency assistance by James’

brother and sister-in-law .... Police began to prepare the paper-

work associated with the incident, including a petition for an

emergency psychiatric evaluation at a local hospital. (Apx. 1124-

1201).” (App. 54a).

by the family.” (App. 53a). However, the officers con-

ceded that “[t]here is also a substantial corpus of law

among federal circuit and district courts which have rec-

ognized the prisoner’s or detainee’s right to protection

from suicide through the provision of medical care and

treatment. See, e.g., Partridge v. Two Unknown Police

Officers, 791 F.2d 1182 (5th Cir. 1988).” (App. 54a)

(emphasis added).

It is in this context that the officers now contend that

their opening brief advanced a qualified immunity argu-

ment. This argument was presented in two sentences,

followed by a one-sentence conclusion:

Absent a constitutionally secured right, which in

turn may give rise to a duty, the State officer may

assert and prevail upon the doctrine of qualified im-

munity. The absence of such a right precludes “con-

touring” of the right and it becomes impossible to

argue that the State officer should have known of

something which did not exist. . . . Accordingly,

this Court must reverse the judgment entered against

Appellants Behan, Gaigalas, and Tucker.

(App. 56a) (citations omitted) .

The Fourth Circuit was correct in concluding that,

even if Gaigalas and Tucker preserved the defense of

qualified immunity in the trial court, their brief failed to

present that issue for appellate consideration:

Part II of the appellants’ brief mentions qualified

immunity for the officer defendants, but hinges the

argument wholly on the lack of a constitutiona! vio-

lation—it does not assert that these defendants were

entitled to qualified immunity because their conduct

did not violate clearly established constitutional law

of which a reasonable officer would have known... .

Even under a generous reading of this argument, it

does no more than assert that these individual de-

fendants were entitled to qualified immunity be-

cause, on the merits, there was no constitutional vio-

lation. ...

Petition Appendix at p. 18a (emphasis in original).

In their Petition, the officers complain of the Fourth

Circuit’s “refusal to consider” the qualified immunity

issue. Petition at p. 15. This criticism of the lower court

is unjustified. It is settled as a matter of federal appel-

late procedure that an issue raised in an opening brief,

but not supported by argument, is deemed abandoned.

Rule 28(a) (4), Fed. R. App. P. See, e.g., United States

v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert. denied, 110

S.Ct. 1814 (1990); Leer v. Murphy, 844 F.2d 628, 634

(9th Cir. 1988); Jungels v. Pierce, 825 F.2d 1127, 1130

(7th Cir. 1987) ; Tailahassee Mem. Regional Med. Center

v. Bowen, 815 F.2d 1435, 1446 n.16 (11th Cir. 1987),

cert. denied, 485 U.S. 1020 (1988); Morrison v. City of

Baton Rouge, 761 F.2d 242, 244 (5th Cir. 1985).

The Fourth Circuit observed that “the Buffingtons jus-

tifiably interpreted the qualified immunity issue raised by

these defendants as simply duplicative of the merits issue,

and so addressed only the merits.” Petition Appendix at

13a. In preparing their own brief, the Buffingtons were

“entitled to rely on the content of an appellant’s brief for

the scope of the issues appealed.” Pignons S.A. de

Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.

1983). The Court of Appeals thus concluded:

In sum, we do not think the appellants have prop-

erly preserved and raised in this court an issue of

qualified immunity distinct from the question of

whether a constitutional violation occurred. We de-

cline to consider such an issue sua sponte.

Petition Appendix at 15a. Given the additional fail-

ure of the officers to properly raise and preserve this

issue in the trial court, granting the petition for writ of

certiorari at the behest of those officers would allow this

case to be decided on a ground never presented before in

any meaningful sense. As did the Fourth Circuit, the

Court should not permit litigants to blow hot and cold on

the issues which they present for adjudication.

An examination of the record in this case discloses an

attempt to persuade the Court to decide the case on an

issue raised for the first time in the officers’ Fourth Cir-

cuit reply brief. Relying upon Danese v. Asman, 835

F.2d 1239 (6th Cir. 1989), cert. denied, 110 S.Ct. 1473

(1990), the reply brief claimed that the holding of

Danese “with regard to qualified immunity is directly on

point and, if applied, requires dismissal of claims against

the individual appellants.” (App. 79a) (emphasis added).

The reply brief’s reliance on Danese v. Asman repre-

sented an attempt to inject the defense of qualified im-

munity into this case for the first time. Obviously, the

Fourth Circuit was correct in holding that issues cannot

be raised for the first time in a reply brief.

The officers’ procedural error in this regard is matched

by the equally erroneous description of the holding in

Danese v. Asman. The officers’ Petition asserts: “[i]n

Danese the Sixth Circuit held that, as a matter of law,

there is no due process right to be protected from sui-

cide.” Petition at p. 11. Unlike the instant case, Danese

involved a situation involving a latently suicidal detainee.

In Danese the circuit court noted that “the ‘right’ that is

truly at issue here is the right of a detainee to be

screened correctly for suicidal tendencies and the right

to have steps taken that would have prevented suicide.”

875 F.2d 1244 (emphasis added). The Danese court

stated that “[i]t is one thing to ignore someone who ‘has

a serious injury and is asking for medical help; it is an-

other to be required to screen prisoners correctly to find

out that they need help.”” (emphasis added). 7d. In find-

ing the defense of qualified immunity applicable the court

in Danese concluded:

The court below did not cite any cases showing

that the officers had the constitutional duty to deter-

mine if Danese was seriously inclined to commit

suicide and then stop him. The story might be dif-

ferent if the police were certain that Danese would

attempt suicide and just ignored it, or if Danese had

told them he needed psychological help. If a prisoner

asks for or needs medical care, it must be supplied.

Id. at 1244 (emphasis added).

Reliance on Gagne v. City of Galveston, 805 F.2d 558

(5th Cir. 1986), cert. denied, 483 U.S. 1021 (1987), is

also totally inappropriate. Gagne involved an arrest for

public intoxication. The Fifth Circuit stated:

In this case, which arose from a jail suicide on May

17, 1983, we hold that the arresting officer was not

under a clearly established constitutional duty to dis-

cover the prisoner’s suicidal tendencies or to deprive

him of the means of killing himself.

805 F.2d at 559 (emphasis added). In rejecting a quali-

fied immunity defense in Lewis v. Parish of Terrebone,

894 F.2d 142, 145-46 (5th Cir. 1990), the Fifth Circuit

noted that “[t]he custodian in Gagne had no knowledge

of suicidal tendencies harbored by the detainee,” and held

that a detainee with known suicidal tendencies requires

protective action by custodial officers.”®

15 Even the cases cited by the Petitioners uniformly hold that

there is a constitutional duty to protect suicidal persons to the

extent that officials are on notice of risk of harm. See Greason v.

Kemp, 891 F.2d 829, 835-36 (11th Cir. 1990) (“where prison per-

sonnel directly responsible for inmate care have knowledge that an

inmate has attempted, or even threatened suicide, their failure to

take steps to prevent that inmate from committing suicide can

amount to deliberate indifference’) ; Dorman v. District of Colum-

bia, 888 F.2d 159, 163 (D.C. Cir. 1989) (municipality can be held

liable in a detainee suicide case where there is knowledge of the

harm); Danese v. Asman, 875 F.2d 1239 (6th Cir. 1989), cert.

denied, 110 S.Ct. 1473 (1990) (where police have notice that de-

tainee was suicidal and were indifferent to his medical needs, claim

for violation of due process rights is stated); Freedman v. City

of Allentown, 853 F.2d 1111, 1115 (3d Cir. 1988) (when police

officers actually know of suicidal tendencies of a prisoner and fail

to take reasonable precautions, due process rights have been vio-

lated); State Bank of St. Charles v. Camic, 712 F.2d 1140 (7th

Cir.), cert. denied, 464 U.S. 995 (1983) (where officials have actual

knowledge that detainee is a suicide risk and do not take reason-

The instant case does not involve the question of

whether the officers should have discovered whether

James Buffington had a latent suicidal tendency. They

received a 911 call for the specific purpose of preventing

his imminent suicide. Thus assuming arguendo that the

officers raised a qualified immunity defense and did not

waive or otherwise abandon it, it is nevertheless clear

that, on the merits, it should be rejected as frivolous.

CONCLUSION

For the foregoing reasons, the Buffingtons respectfully

request that the Court deny the Petition.

Respectfully submitted,

WILLIAM F. GATELY

DANIEL W. WHITNEY *

SEMMES, BOWEN & SEMMES

250 West Pratt Street

Baltimore, Maryland 21201

(301) 589-5040

* Counsel of Record Counsel for Respondents

February 12, 1991

able precautions to guard against self-inflicted harm, due process

claim is stated).

APPENDICES

TABLE OF CONTENTS

APPENDIX A:

Motion To Dismiss Or, In The Alternative, Motion

For Summary Judgment And Memorandum Of

Points And Authorities (filed 1/20/88) ................

APPENDIX B:

Motion To Dismiss The Amended Complaint, Or

in The Alternative, Motion For Summary Judg-

ment And Memorandum Of Points And Authorities

EE ED -ctitsicinnttitiassncateeancnnianhpannnilishaneibahiisnidillanne

APPENDIX C:

Motion For A Directed Verdict And For Judg-

ment Notwithstanding The Verdict And Memoran-

dum Of Points And Authorities In Support Of

Motion For A Directed Verdict And For Judgment

Notwithstanding The Verdict (filed 12/2/88) .......

APPENDIX D:

Defendants’ Oral Motion For Directed Verdict At

Close Of Plaintiffs’ Case On 1/12/89 _...000. 00...

“APPENDIX E:

Defendants’ Oral Motion For Directed Verdict At

Close Of All The Evidence In The Case On

MII Aili is diisdctianbsentiteinaenctinandabbadbel ai tlaesuatsthahamesacents

APPENDIX F:

District Court’s Instructions On 1/17/89 And

Fa I a on ssn saa reishtelsenbidnaadnanineiotin

APPENDIX G:

Motion For A Directed Verdict And For Judg-

ment Notwithstanding The Verdict And Memoran-

dum Of Points And Authorities (filed 1/27/89)...

Page

lla

20a

26a

29a

36a

44a

TABLE OF CONTENTS—Continued

APPENDIX H:

I re I oi ccctsniicsincnsntncnsnssiinesnneiinnticoniiamessintion

APPENDIX I:

District Court Memorandum And Order Of

BP TED scans aicnisnectichaceusioabnistiansiahnnistiivibinensniensetinatoidesunimdlininias

APPENDIX J:

Motion To Reconsider (filed 6/13/88) .....................

APPENDIX K:

Motion To Amend Interlocutory Order (filed

II iecsisssscocicecnastonneinnissidesiptiepentetaeeeesssliptaaienensiatesnetnaichtisas

APPENDIX L:

District Court Order Denying Motion To Stay

Proceedings (filed 10/24/88) .............2....-22:::1:0-0--++

APPENDIX M:

Order Denying Motion To Stay Proceedings Pend-

ing Appeal (dated 10/24/88) ..........2.-..---------sece-e000+-

APPENDIX N:

TS TI TOI ences scterstnitetescecttinicsnesconee

64a

69a

7la

75a

Ca ean LS Troe Ge. TS

TR LTT

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. JH-87-3284

BARBARA BUFFINGTON, et al.,

Plaintiffs,

BALTIMORE COUNTY, et al.,

Defendants.

MOTION TO DISMISS OR, IN THE ALTERNATIVE,

MOTION FOR SUMMARY JUDGMENT

[Filed Jan. 20, 1988]

Baltimore County, Maryland, Chief Cornelius J. Behan,

Sergeant Daniel Yuska, Corporal Joseph Gribbin, Officer

L. S. Harvey, and Officer Donald Gaigalas, Defendants,

by their undersigned counsel, move pursuant to Rule 12b

of the Federal Rules of Civil Procedure to dismiss the

within Complaint, or, in the alternative, move, pursuant

to Rule 56, for summary judgment in their favor as a

matter of law and, state as follows:

1. That the within Complaint fails to state a cause

of action upon which the relief prayed can be granted.

2. That this Court does not have jurisdiction over the

claims asserted in the Complaint.

3. That the Complaint fails to state causes of action

upon which the relief prayed can be granted against

these Defendants.

4. That as to the Defendant, Baltimore County, Mary-

land, a body corporate and politic of the State of Mary-

land, it is immune with respect to the cause or causes of

action presented in the Complaint.

5. That the individual Defendants are immune with

respect to the claims presented in the within Complaint.

6. That this Court has no jurisdiction over the pend-

ant state law claims, which fail to state causes of action

against these Defendants, as a matter of law.

7. That there is no dispute as to any material facts

with which the claims presented in the Complaint are

concerned, and therefore, these Defendants are entitled to

summary judgment in their favor as a matter of law.

For the reasons stated, the Defendants respectfully

request that this Honorable Court dismiss the within

Complaint, or, in the alternative, that this Court enter

summary judgment in their favor as a matter of law,

assessing costs and expenses against the Plaintiffs as

appropriate.

/s/ Arnold Jablon

ARNOLD JABLON

County Attorney

/s/ John A. Austin

JOHN A. AUSTIN

Associate County Attorney

Trial Bar No. 00776

/s/ James G. Beach, III

JAMES G. BEACH, III

Assistant County Attorney

Trial Bar No. 01196

Office of Law

2nd Floor, Court House

Towson, Maryland 21204

301/494-4420

Attorneys for the Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND /

Civil Action No. JH-87-3284

BARBARA BUFFINGTON, et al.,

Plaintiffs,

Vv.

BALTIMORE COUNTY, et al.,

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES

Baltimore County, Maryland, et al., Defendants, by

their undersigned counsel, submit the following Memo-

randum to assist the Court in its consideration of the

issues presented by the Motion to Dismiss or, in the Al-

ternative, Motion for Summary Judgment filed concur-

rently in these proceedings on behalf of these Defendants.

The Plaintiffs, as the parents and Personal Representa-

tive of the late James E. Buffington, have filed with this

Court, a thirty-six page Complaint asserting claims under

42 U.S.C. Section 1983, in Counts I and II, on behalf of

themselves and the Decedent, and pendant state law

claims for wrongful death and survival in Counts III and

IV, on behalf of themselves and the Decedent. Notwith-

standing the sophistic verbiage in the seventy-eight para-

graphs of the Complaint, the essence of the Plaintiffs’

claims is a theory of negligence o the part of the De-

fendants. Essentially, the Plaintiffs’ claims are to the

effect that the Defendants, and specifically the individual

police officers, negligently failed to prevent the Deceased,

James E. Buffington, from hanging himself while confined

in a precinct holding cell at the Wilkens Station, follow-

———

ing his arrest for the burglary of his parents’ home.

(See Paragraphs 30-34 of the Complaint). However, be-

cause the claims for negligence as framed by the four

counts of the Complaint are barred by various immunities

that are applicable to the Defendants, the Complaint

should properly be dismissed at this time.

Claims Under 42 U.S.C. Section 1983

Plaintiffs have presented separate claims on behalf of

the Decedent, James E. Buffington and on behalf of them-

selves as surviving parents pursuant to 42 U.S.C. Section

1983. Addressing these claims in reverse order, the

Plaintiffs under Count II have alleged standing to bring

a direct action under Section 1983 on behalf of themselves

as the parents of the Deceased, James E. Buffington, and

have alleged a deprivation of their constitutional rights

to enjoy the association, companionship, and relationship

with the Decedent. Otherwise stated, Count II is an

effort to present a federal, wrongful death and survivor

claim on behalf of the Plaintiffs as parents of the De-

ceased. Such claims are clearly not within the scope of

Section 1983 and must be brought, if at all, pursuant to

applicable state law tort theories. With respect to the

claims presented under 42 U.S.C. Section 1983, a plain-

tiff must allege facts sufficient to establish a violation of

some protected federal constitutional right of the plain-

tiff, clearly established the time of the occurrence, which

is the subject of the Complaint. See Harlow v. Fitzgerald,

457 U.S. 800 (1982). Applying this rule to the case at

bar, the Plaintiffs must allege facts sufficient to present

a clearly established constitutional duty to discover the

latent suicidal tendencies of the Deceased and/or to de-

prive the Deceased of the means of taking his own life.

The existence of such a clearly defined constitutional

duty was addressed squarely and rejected by the United

States Court of Appeals for the Fifth Circuit in the

leading case of Gagne v. City of Galveston, 805 F.2d 558

aeust

(5th Cir. 1986). In that case, the Court of Appeals for

the Fifth Circuit dismissed claims factually and legally

identical to the claims in the case at bar, using the follow-

ing language:

“The only factual allegations against Putnal (the

arresting officer) that are remotely relevant to the

claimed deprivation of constitutional rights are that

Putnal failed to remove the decedent’s belt and that

the decedent was not placed under ‘heightened sur-

veillance’ at the jail. The plaintiffs have not cited

any case suggesting that a constitutional duty to pro-

tect prisoners from self-destructive behavior was

clearly established at the time Gagne was arrested.

Indeed, the case of Partridge v. Two Unknown Police

Officers, 791 F.2d 1182 (5th Cir. 1986), shows that

the possible existence and scope of such a duty has

only very recently begun to attract attention in this

circuit. Thus, under Harlow v. Fitzgerald, 457 U.S.

800 (1982) and Elliott v. Perez, 751 F.2d 1472 (5th

Cir. 1985), the claim :gainst Putnal must be dis-

missed.”

The claims in the Gagne case were brought by Gagne’s

estate and survivors under 42 U.S.C. Section 1983. Iden-

tical claims have been brought by the Plaintiffs as the

surviving parents of James E. Buffington under Count

II. A careful examination of the allegations of the Com-

plaint clearly demonstrate that the within case is squarely

within the holding of the Fifth Circuit in the Gagne case

and therefore, Count II should properly be dismissed.

The well-pleaded facts presented in the Coraplaint filed

in these proceedings recite that the Plaintiff’s Decedent,

James E. 3uffington, was placed in a cell in the Wilkens

Station and at some point in time between approximately

6:25 and 7:20 a.m., he committed suicide by hanging

himself in a noose fashioned from his own pants. (See

Paragraph 46). From the other allegations of the Com-

plaint, it appears that prior to being placed in the cell

that the Decedent’s belt, shoes, shoelaces, and other simi-

lar articles of clothing had been removed from him leav-

ing him with only his shoes, socks, pants, shirt and under-

garments. The Complaint also alleges that although the

Decedent had left a suicide note and had previously dis-

played emotional instability that at the time of his ap-

prehension, he advised the officers that he did not intend

to end his life, even though he was at that time in the

possession of several handguns and two rifles, and ap-

parently a sufficient quantity of ammunition for all of

these weapons. (See Paragraphs 35 and 36). Although

it is alleged without specificity that the Decedent, James

E. Buffington, had been drinking (Paragraph 36), there

is no further allegation in the Complaint that the De-

cedent was intoxicated, there being only a statement that

his judgment was impaired by alcohol. (See Paragraph

42). By contrast with the facts as alleged within Com-

plaint, the Plaintiff in the Gagne case was arrested for

public intoxication, was apparently extremely intoxicated,

and was placed in a cell block without first removing his

belt. This action violated the Departmental policies of

the Police Department of the City of Galveston, and as a

result, the belt was used as a noose by the Plaintiff,

Gagne, to take his own life. Further, the Plaintiff, Gagne,

apparently had scars on one wrist from a prior suicide

attempt which was apparently known to the arresting

officers.

By comparison with the case at bar, there are no al-

legations in the Complaint that the Decedent, James E.

Buffington, had ever previously attempted suicide and

the contents of the alleged suicide note are not made a

part of the Complaint so as it is not possible to evaluate

whether or not that note, in and of itself, would have

been sufficient to put the officers on any additional notice

regarding the suicidal tendencies of the Decedent. How-

ever, notwithstanding the contents of the note, the Com-

plaint plainly alleges that the officers were in fact in

the process of preparing the necessary paperwork for an

emergency commitment of the Decedent prior to and at

—_

;

the time he took his own life. (See Paragraph 37). It is

plain that the Complaint alleges no need for the Decedent

to have been continuously monitored as he had displayed

no unusual actions after being taken into custody and

indeed, the Complaint itself describes him as being

“thoroughly docile and submissive” during the processing

at Wilkens Station. (See Paragraph 38). In short, the

Complaint clearly alleges facts that establish that there

was no basis for the arresting officers to conclude that the

Decedent present any unusual risk to himself. Thus, there

are no facts alleged in the within Complaint that would

remove this case from the holdings in the Gagne case,

nor are there any additional factors present that would

require a different result than that reached by the Court

in Gagne. There being no factual basis upon which to

conclude that the officers who handled Mr. Buffington

were under a constitutional duty to prevent him from

taking his own life, there can be no actionable violation

of Section 1983 as a result of his suicide.

In apparent recognition of this factual and legal prob-

lem, the Plaintiffs have attempted to allege a deprivation

of the constitutional rights of the Decedent by alleging a

violation of his Sixth Amendment rights as a result of

claimed deliberate indifference to his serious medical

needs. The bald, unsubstantiated allegations of the Com-

plaint attempt to bring this case within the case law

standards regarding medical care of inmates. However, it

is cleax that the facts of the case at bar do not present an

actual claim for deliberate indifference to serious medical

needs.

The Plaintiffs’ claims are asserted in a guise that would

attempt to bring them within the confines of the case law

principles established by the leading decision of the United

States Supreme Court in Estelle v. Gamble, 429 U.S. 97

(1976), which held that deliberate indifference to serious

medical needs by institutional staff constituted cruel and

unusual punishment prohibited by the Eighth Amendment

to the United States Constitution. In Estelle v. Gamble,

—

supra, the Supreme Court, in analyzing a physician’s

diagnostic treatment of a confined inmate, held plainly

that the standard to be applied, deliberate indifference,

was to be distinguished from a mere negligence standard,

and distinguished between a claim for deliberate indif-

ference and a claim of medical malpractice. In making

this distinction, the Court held:

“A complaint that a physician has been negligent in

diagnosing or treating a medical condition does not

state a valid claim of medical mistreatment under

the Eighth Amendment. Medical malpractice cannot

become a constitutional violation merely because the

victim is a prisoner.” 429 U.S. at 109.

This distinction between deliberate indifference and

mere negligence has been carried forward by the more

recent decisions of the Supreme Court in Davidson v.

Cannon, 474 US. (1986) and Daniels v. Williams,

474 U.S. —— (1986), where the Supreme Court held

that a claim for simple negligence or lack of due care

does not state an actionable constitutional claim under 42

U.S.C. Section 1983. Specifically, the Supreme Court in

Davidson v. Cannon, supra, held as follows:

‘Respondents’ lack of due care in this case led to

serious injury, but that lack of due care simply does

not approach the sort of abusive government conduct

that the due process clause was designed to prevent.

Daniels, slip opinion, at page 4-6. Far from abusing

governmental power, or employing it as an instrument

of oppression, Respondents mistakenly believe that

the situation was not particularly serious and Re-

spondent James simply forgot about the note. The

guarantee of due process has never been understood

to mean that the statements guarantee due care on

the part of its officials.”

The inescapable thrust of these holdings by the United

States Supreme Court is that negligent conduct on the

LD soll ce eaten,

part of a public official cannot form the basis for a claim

under Section 1983. This is true whether the claim is

presented under the Eighth Amendment with respect to a

confined inmate or under the Fourteenth Amendment with

respect to a pretrial detainee, such as the Plaintiff’s

Decedent. The Complaint in the within proceedings, al-

though repeatedly phrasing “deliberate indifference’, is

lacking in factual substantiation that would give rise to

such claims. Indeed, certain of the paragraphs of the

Complaint clearly state that the cause of action is for

negligent conduct on the part of the Defendants. See, for

example, Paragraphs 49, 68, 71, and 76, all of which

speak in terms of the Defendants’ negligently failing to

fulfill an alleged duty to the Decedent. The bald, unsub-

stantiated allegations of deliberate indifference notwith-

standing, the factual circumstances that led up to the

death of the Decedent as described in the Complaint,

clearly indicate that there was no indication that the

Plaintiff had any serious medical needs or that he was

at risk to take his own life. Indeed, notwithstanding the

ingestion of alcohol, the Complaint describes the Plaintiff

Decedent as being “thoroughly docile and submissive.”

Taking the allegations of Counts I and II and of the

Complaint as a whole in a light most favorable to the

Plaintiffs’ cause, the only claims that is presented is that

the Defendants negligently failed in their attempt to pre-

vent the Plaintiffs’ Decedent from committing suicide by

failing to secure for him psychiatric care in time to pre-

vent him from taking his own life. However, these claims

likewise fail to state a cause of action. In the leading

decision of Jackson v, City of Jolliet, 715 F.2d 100 (7th

Cir. 1983), cert. denied, 465 U.S. 1049 (1984), claims

presented under Section 1983, were dismissed for failure

to state a claim in the following language:

“We hold that an attempt by state officers to assist

at an accident is not a deprivation of life without

due process of law under the Fourteenth Amendment

10a

when the attempt fails because of the negligence, or

even gross negligence of the officers or their super-

visors, and the accident victim dies.” 715 F.2d 1200,

at 1206.

The Court in Jackson v. City of Jolliet, supra, dis-

missed claims presented through the Fourteenth Amend-

ment for negligent action of the governmental officials in

effecting a rescue attempt. A Petition for Certiorari was

filed with the Supreme Court and was denied. However,

the application of the principles of Jackson to the case

at bar is clear. An attempt by state officers to prevent

a suicidal subject from taking his own life is not action-

able under Section 1983 through the Fourteenth Amend-

ment when the efforts of the officers fail because of their

negligence or even gross negligence, and the suicidal sub-

ject, through determined effort, succeeds in taking his

own life. It is respectfully submitted that a straight-

forward application of the applicable principles of law

demonstrate that state officers such as the Defendants

cannot be liable for negligent acts or omissions committed

in the scope of their official duties. This is particularly

true when the moving force behind the alleged constitu-

tional deprivation is the Deceased himself. It is for these

reasons as well as others noted herein that Counts I and

II should now properly be dismissed as against all De-

fendants.

* - * ”

lla

APPENDIX 8B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. JH-87-3284

BARBARA BUFFINGTON, et al.,

Plaintiffs,

Vv.

BALTIMORE COUNTY, MARYLAND, et al.,

Defendants.

MOTION TO DISMISS THE AMENDED COMPLAINT,

OR IN THE ALTERNATIVE, MOTION FOR

SUMMARY JUDGMENT

[Filed Sept. 8, 1988]

Baltimore County, Maryland, et al., Defendants, by the

undersigned attorneys, move pursuant to Rule 12b of

the Federal Rules of Civil Procedure to dismiss the

Amended Complaint filed herein, or, in the alternative,

move, pursuant to Rule 56 of the Federal Rules of Civil

Procedure for summary judgment in their favor as a

matter of law and as grounds therefore state as follows:

1. That the Amended Complaint fails to state a cause

of action against the named Defendants.

2. The Amended Complaint fails to state a cause of

action, either under 42 U.S.C. Section 1983 or under the

pendant State law claims presented in the various num-

bered counts of the Amended Complaint.

3. That as to the individual Defendants who are sued

individually, no claims are stated in the Amended Com-

plaint for any wrongful acts committed by them solely

12a

in their individual capacities, as opposed to their official

capacities, and therefore, the Amended Complaint should

be dismissed against all Defendants in their individual

capacities.

4. That as to each of the individual Defendants, pub-

lic official immunity bars any State law claims presented

in the Amended Complaint.

5. That as to the claims presented under 42 U.S.C.

Section 1983, all of the individual Defendants have im-

munity with respect to the claims enumerated in the

Amended Complaint.

6. That as to the Defendant, Baltimore County, Mary-

land, the Amended Complaint fails to state a cause of

action against this Defendant as a body corporate and

politic of the State of Maryland.

7. That to the extent that the several counts of the

Amended Complaint purport to allege a cause of action

for wrongful death and survivorship under 42 U.S.C.

Section 1983, these claims should be dismissed as a matter

of law.

8. That the pendant State law claims against the De-

fendant, Baltimore County, Maryland, are barred by the

doctrine of governmental immunity.

9. That as to the individual Defendants there is no

dispute as to any material fact with respect to their lia-

bility to the Plaintiffs and therefore, summary judgment

is appropriate in their favor as a matter of law. The

materials which set forth the undisputed material facts

are attached hereto and incorporated by reference and are

identified in the accompanying Memorandum of Points and

Authorities.

10. That the claims for non-economic damages against

all of the Defendants should be dismissed to the extent

that these claims exceed the maximum of iimit of Three

Hundred Fifty Thousand Dollars ($350,000.00) established

13a

by Section 11-108 of the Courts and Judicial Proceedings

Article of the Annotated Code of Maryland.

11. That as to the claims presented for the first time

in the Amended Complaint, that there was a constitutional

violation as a result of the alleged inadequate or incom-

plete investigation that was conducted following the events

described in the Amended Complaint, there is no constitu-

tional right to have such an investigation conducted and

thus, to the extent that these allegations purport to pre-

sent claims under 42 U.S.C. Section 1983, these claims

should now properly be dismissed.

12. The Amended Complaint should be stricken as it

was filed without first securing leave of Court or consent

of opposing parties as required by Rule 15(a) of the

Federal Rules of Civil Procedure.

For the reasons stated, the Defendants respectfully

request this Honorable Court pass an Order dismissing

the Amended Complaint, or, in the alternative, entering

summary judgment in favor of the Defendants as a

matter of law, assessing costs against the Plaintiffs as

appropriate.

/s/ Arnold Jablon

ARNOLD JABLON

County Attorney

/3/ James G. Beach III

JAMES G. BEACH, III

Assistant County Attorney

/s/ John A. Austin

JOHN A. AUSTIN

Assistant County Attorney

Trial Bar No. 00776

Baltimore County Office of Law

2nd Floor, Old Courthouse

Towson, Maryland 21204

301/494-4420

Attorneys for Defendant,

Baltimore County, Maryland

l4a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. JH-87-3284

BARBARA BUFFINGTON, et al.,

Plaintiffs,

BALTIMORE COUNTY, MARYLAND, et al.,

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES

Baltimore County, Maryland, et al., Defendants, by

their undersigned attorneys, submit the following Memo-

randum to assist the Court in its consideration of the

issues presented by the Motion to Dismiss the Amended

Complaint, or in the Alternative, Motion for Summary

Judgment filed concurrently in these proceedings on behalf

of these Defendants.

* * * *

Counts I and II of the Amended Complaint assert

claims respectively on behalf of the estate of the Decedent

for a deprivation of constitutional rights under 42 U.S.C.

Section 1983, in Count I, and in Count II, claims under

Section 1983 on behalf of the Plaintiffs as the surviving

parents of the Decedent. As to Count IJ, the Amended

Complaint fails to state a cause of action under Section

1983, for it fails to identify a recognized federally pro-

tected constitutional right that has been violated or denied

to them as a result of their son’s suicide. Specifically, in

Paragraph 67 of the Amended Complaint, the Plaintiffs’

attempt to allege a liberty interest in the continued rela-

tionship with their son, as well as a liberty interest in

15a

the expectation of certain minimal standards of treatment

for their son. Otherwise stated, the claims in Count II

are not recognizable before this Court as a claim under

Section 1983 for the alleged liberty interest identified in

Count II simply does not exist as a matter of law. At

no point in the Amended Complaint are there any allega-

tions tending to establish the existence of some federally

protected liberty interest flowing solely to the parents

independent of their claims under Count I on behalf of

their deceased son. Count II is plainly an effort to present

a federal wrongful death and survivor claim on behalf of

the Plaintiffs as the parents of the deceased, which

claims are a duplication of the wrongful death and sur-

vivor claims presented in Counts III and IV under State

law tort theories. However, the Plaintiffs have failed to

allege facts or to recite case law precedent establishing

a protected Fourteenth Amendment liberty interest as

alleged in Count II. Indeed, the leading cases are to the

contrary. See Elliott v. Perez, 751 F.2d 1472 (5th Cir.,

1985) ; Harlow v. Fitzgerald, 457 U.S. 800 (1982) ; Gagne

v. City of Galveston, 805 F.2d 558 (5th Cir., 1986). The

claims presented by the Plaintiffs under Count II plainly

do not exist as a matter of law, and therefore, Count II

should properly be dismissed.

With respect to Count I, which alleges direct claims on

behalf of the Decedent’s estate under Section 1983, it is

to be noted that all of the individual Defendants are

sued in their official capacities as members of the Balti-

more County Police Department. In substance, the claims

presented in Count I allege that the individual Defend-

ants were either negligent in their handling of, or de-

liberately indifferent to, the medical needs of the Plain-

tiff’s Decedent with respect to his needs for psychiatric

treatment as demonstrated through his overtly suicidal

behavior. The- Amended Complaint further alleges that

the negligent or deliberately indifferent activities were

the result of inadequate training and supervision by the

Defendants Kramer and Behan, were the product of the

16a

alleged inadequacies of the lockup facilities themselves,

or were the product of the alleged inadequacies in the

Departmental Rules and Regulations. All of these fac-

tors the Amended Complaint alleges proximately caused

the suicide of James Buffington by resulting in his being

placed by himself in the cell where he ultimately com-

mitted suicide.

Focusing for the moment only upon the individual po-

lice officer Defendants, it is beyond dispute that none of

these individual officers are alleged to nor could have had

any responsibility for the implementation of policies,

rules or regulations for the implementation of adequate ©

training programs, nor for the building of the lockup

facilities. Therefore, the liability of the individual De-

fendants Yuska, Gribbin, Harvey, Gaigalas, Tucker, and

Maeser turns upon the question of whether they were

negligent or deliberately indifferent with respect to secur-

ing necessary medical care for the Decedent Plaintiff. To

impose liability upon these individual officers, the Plain-

tiffs must prove that their actions imposed punishment

upon the deceased during the period of his confinement,

as well as upon factors relating to whether those officers

with actual knowledge of the decedent’s suicidal tenden-

cies failed to take any action to protect him from him-

self. Further, the conduct of the individual officers must

have been deliberate, and not merely negligent, for negli-

gence has been conclusively determined by the Supreme

Court of the United States to be an insufficient basis /

for an actionable claim under 42 U.S.C. Section 1983.

At a minimum, therefore, the claims against the in-

dividual police officers for negligent conduct should prop-

erly be dismissed. As the Supreme Court in Davidson v.

Cannon, 474 U.S. 344 (1986) held:

“Respondent’s lack of due care in this case led to

serious injury, but that lack of due care simply does

not approach the sort of abusive government con-

duct that the due process clause was designed to

nil

17a

prevent ... the guarantee of due process has never

been understood to mean that the state must guar-

antee due process on the part of its officials.”

The inescapable thrust of this plain ruling by the United

States Supreme Court is that negligent conduct on the

part of the individual police officers cannot form the basis

for claims under Section 1988, whether those claims are

presented under the Eighth Amendment or under the

Fourteenth Amendment.

Of the individual police officer Defendants, only Officer

Harvey and Corporal Gribbin had full knowledge of the

particulars of the events of the evening in question. Both

of these officers had read the suicide note, had spoken

with the Decedent’s reiatives and had been involved in

making the decision that he should be taken for an emer-

gency evaluation. However, neither of these officers had

any role in the decision to put the Decedent in the cell

vnere he ultimatly took his life. It is undisputed that

it was this action that afforded the Decedent the oppor-

tunity to commit suicide. It is likewise undisputed that

Officer Gaigalas is the officer who placed the Decedent in

the cell where he committed suicide and that Officer

Gaigalas at that time had no knowledge of the Decedent’s

suicidal tendencies. (See Exhibit “A”, portions of the

Deposition Transcript of Officer Gaigalas, copies of which

are attached hereto and incorporated herewith by ref-

erence). Officer Gaigalas has plainly stated, without con-

tradiction, that had he known of the Decedent’s suicidal

tendencies, he would have never placed him in a cell

where he could have committed suicide. It is also beyond

dispute that Officer Gaigalas came on duty at approxi-

mately 6:15 a.m., at which time Mr. Buffington had al-

ready been arrested and was chained to a bar near the

desk area. Absent some proof of actual knowledge on the

part of Officer Gaigalas, there can be no liability against

him for his actions with respect to the Decedent, which

were, at worst, merely negligent.

18a

Similarly, with respect to Officer Maeser, this officer

was no longer on duty or even in the station house at the

time Officer Gaigalas put Mr. Buffington into the holding

cell. Officer Maeser’s alleged wrongful conduct is framed

in Paragraphs 21 and 46 to 51 of the Amended Com-

plaint. All of these paragraphs, however, make specific

reference to a period of time, beginning at approximately

6:25 a.m. when Officer Maeser was no longer in the sta-

tion house. (See Deposition transcript pages — Exhibit

“B” attached). Further, Officer Maeser is alleged to have

violated certain duties owed to the Decedent, which duties

would only arise if he were physically present and thereby

in some way in control of the ultimate disposition of the

Decedent. Further, to the extent that the Amended Com-

plaint alleges a breach of these alleged duties on the

part of Officer Maeser, these allegations allege merely

negligent conduct on his part. Because this negligent

conduct is not actionable, Davidson v. Cannon, supra, the

Amended Complaint should be dismissed as against Of-

ficer Maeser.

Officer Ronald Tucker was the desk officer who re-

lieved Officer Maeser and Officer Kamberger (Officer

Kamberger is not joined as a Defendant in these proceed-

ings), and he arrived on duty ahead of Officer Gaigalas.

In his Deposition testimony, (See Exhibit “C’’, portions

of the Deposition Transcript of Officer Tucker, copies of

which are attached hereto and incorporated herewith by

reference), Officer Tucker has stated that he became

aware of the Decedent’s suicidal tendencies, although he

had not read the suicide note nor had much opportunity

to observe the Decedent. The alleged wrongful conduct of

Officer Tucker is framed in the same paragraphs as those

addressing Officers Harvey, Gaigalas, Maeser, Sergeant

Yuska, and Corporal Gribbin. However, at worst, the

alleged wrongful conduct of Officer Tucker, as it re-

lated to his handling of the Decedent, was mere negli-

gence and thus not actionable under Section 1983.

19a

Sergeant Yuska was the oncoming shift supervisor at

Wilkens Station on the morning in question and was the

immediate supervisor of the other Defendants. Sergeant

Yuska, in his Deposition testimony (See Exhibit “D”,

portions of the Deposition Transcript of Sergeant Yuska,

copies of which are attached hereto and incorporated here-

with by reference), has repeatedly stated that he had no

knowledge of the Decedent’s suicidal tendencies. Ser-

gant Yuska has also plainly stated that he did not direct

the desk officers to take any particular action with respect

to the Decedent other than to state that here was a

standing order on his part that suicidal subjects were

not to be placed in the lockup. Further, Sergeant Yuska

has likewise testified, without contradiction, that he was

involved in a great many other routine duties during the

period of time in which the Decedent was placed in the

cell. Sergeant Yuska, therefore, had no knowledge of the

Decedent’s suicidal tendencies nor did he have any input

with respect to place Mr. Buffington in a holding cell.

Otherwise stated, there are no allegations, supported by

competent evidence, that Sergeant Yuska was involved in

any wrongful actions, negligent or otherwise, that directly

and proximately caused the death of Mr. Buffington.

* * * +

20a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. JH-87-3284

BARBARA BUFFINGTON, et al.,

Plaintiffs,

Vv.

BALTIMORE COUNTY, MARYLAND, et al.,

Defendants.

MOTION FOR A DIRECTED VERDICT AND FOR

JUDGMENT NOTWITHSTANDING THE VERDICT

[Filed Dec. 2, 1988]

Baltimore County, Maryland, et al., by their under-

signed attorneys, moves this Honorable Court pursuant to

Rule 50 of the Federal Rules of Civil Procedure for a

directed verdict in favor of the Defendants as a matter

of law, or, in the alternative, for a Judgment notwith-

standing the verdict in favor of all of the Defendants

and as grounds therefore state as follows:

1. That the within proceedings were tried before a

jury, which trial ended on or about November 23, 1988

in a mistrial.

2. Prior to the case being submitted to the Jury, all

of the Defendants made a motion for a directed verdict

at the close of all of the evidence asking that the Court

enter Judgment in their favor as a matter of law. At

that time, the Court reserved its rulings on the Motions

that were made, and no further ruling has been made on

21a

said Motions subsequent to the conclusion of the trial as

aforesaid.

3. Pursuant to the provisions of Rule 50 of the Federal

Rules of Civil Procedure, the Defendants are now en-

titled to have the rulings previously reserved by this

Court reviewed and adjudicated prior to a retrial of these

proceedings.

4. The Defendants incorporate by reference the pre-

vious arguments presented at the time of trial in con-

nection with the Motion for a Directed Verdict made at

the close of all of the evidence. In addition, the Defend-

ants incorporate herewith by reference the enclosed

Memorandum of Points and Authorites submited in sup-

port of this Motion.

For the seasons stated, the Defendants respectfully

request this Honorable Court grant directed verdicts in

favor of all of the Defendants as a matter of law and

that Judgments be entered in favor of the Defendants

accordiligly.

/s/ Arnold Jablon

ARNOLD JABLON

County Attorney

/s/ James G. Beach, III

JAMES G. BEACH, III

Assistant County Attorney

/s/ John A. Austin

JOHN A. AUSTIN

Assistant County Attorney

Trial Bar No. 00776

Baltimore County Office of Law

2nd Floor, Old Courthouse

Towson, Maryland 21204

301/887-4420

Attorneys for Defendants

22a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. J H-87-3284

BARBARA BUFFINGTON, et al.,

Plaintiffs,

BALTIMORE COUNTY, MARYLAND, et al.,

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES

IN SUPPORT OF MOTION FOR A DIRECTED

VERDICT AND FOR JUDGMENT

NOTWITHSTANDING THE VERDICT

[Filed Dec. 2, 1988]

* * a *

IV. Individual Defendants—Federal Claims

The claims against the individual Defendants are

founded in negligence theories asserting claims under

Section 1983. However, since the claims are merely for

negligence, it is plain that these claims are not actionable.

See Daniels v. Williams, 106 S.Ct. 662 (1986) and David-

son v. Cannon, 106 S.Ct. 668 (1986). Further, the evi-

dence at trial in these proceedings fail to demonstrate

more than mere negligence. At best, the testimony gen-

erated proof only of errors of judgments or an inadvert-

ent failure to take appropriate action. Sucn conduct

does not amount to “deliberate indifference.” See Boyce

v. Aelizaduh, 595 F.2d 948 (4th Cir., 1979). As the

United States Court of Appeals for the Fifth Circuit held

in defining deliberate indifference in Johnson v. Treen,

759 F.2d 1236 (5th Cir., 1985) :

23a

“The facts underlying a claim of ‘deliberate indif-

ference’ must clearly evince the medical need in ques-

tion and the alleged official dereliction. Woodall v.

Foti, 648 F.2d 268 (5th Cir., 1981). The legal

conclusion of ‘deliberate indifference’, therefore, must

rest on facts clearly evincing ‘wanton’ actions on the

part of the defendants.” (Emphasis in original).

759 F.2d at 1238.

No proof was presented at trial evidencing that any of

the conduct of any of the Defendants begins to approach

the standard of recklessness or wanton conduct that is

the basis of deliberate indifference. Further, as to the

individual Defendants Behan and Kramer, the case can

proceed against them only if they were deliberately in-

different in their respective roles as supervisors. As to

Chief Behan, the record before this Court is totally de-

void of any evidence that he was deliberately indifferent

in connection with establishing appropriate training pro-

grams, in upgrading precinct lockups, and in continuing

to establish and monitor Departmental Rules and Regu-

lations relating to suicidal detainees. However, the fail-

ure to implement every conceivable device or practice or

to implement every conceivable program of training to

prevent suicides does not amount to the wanton conduct

that is the standard for deliberate indifference. See for

example, Roberts v. City of Troy, 773 F.2d 720 (6th Cir.,

1985) (budget constraints and limited resources in per-

sonnel that resulted in failure to provide suicide preven-

tion training does not amount to deliberate indifference) .

Moreover, there is no clearly established legal principle

within this Circuit requiring that all possible precautions

be taken in order to avoid liability under 42 U.S.C. Sec-

tion 1983. The same is true with respect to Captain

Kramer. Indeed, Captain Kramer was the Commander

of the Wilkens Precinct for slightly over six (6) months

prior to March 19, 1987. This period of time is plainly

inadequate for Captain Kramer to have implemented the

24a

kinds of suicide training postulated by the expert wit-

nesses who testified on behalf of the Plaintiffs. Because

there is no respondeat superior liability on behalf of

either Chief Behan or Captain Kramer, and because there

is no evidence that their conduct as supervisors was

deliberately indifferent, the Federal claims should row

properly be dismissed.

With respect to the individual officers, it is plain that

Officer Maeser cannot be held deliberately indifferent re-

garding the handling of Mr. Buffington for he was no

longer present when Mr. Buffington was placed in a

detention cell. Likewise, with respect to Officer Harvey,

Sergeant Gribbin, and Sergeant Yuska, none of these in-

dividuals was responsible for either commanding, direct-

ing or suggesting that James Buffington be placed in a

detention cell. Not only is there no evidence of deliberate

indifference on behalf of these four (4) officers, but there

is likewise no causal connection between any of their

conduct and the placing of Mr. Buffington in a detention

cell. With respect to Officer Tucker, he likewise had no

input into the decision to place Mr. Buffington into a

detention cell, and there is no other evidence that he was

otherwise deliberately indifferent to Mr. Buffington’s

serious medical needs. As to Officer Gaigalas, at best, the

evidence adduced against him demonstrates merely errors

in judgment or an inadvertent failure to take appropriate

action. For these reasons, the Federal claims against the

individual officers should be dismissed.

Each of the individual Defendants possesses a qualified

immunity -from liability under Section 1983, so long as

their conduct is reasonable in light of legal rules and

principles that were clearly established at the time of

the actions in question. As the United States Court of

Appeals for the Fourth Circuit held in the case of Osa-

butey v. Welsh, F.2d , No. 87-1757 (decided

September 16, 1988) :

————————————ee

25a

“The standard to be applied here is one of the

‘objective legal reasonableness’ of official conduct,

‘assessed in light of the legal rules that were ‘clearly

established’ at the time it was taken. Anderson v.

Creighton, U.S. —— (1987), 55 U.S.L.W. 5092,

5093. It is the right that is alleged to have been

- violated that must be ‘clearly established.’ It must

be sufficiently so ‘.. . that in light of preexisting law

the unlawfulness must be apparent.’ 55 U.S.L.W. at

5093.”

Evaluating the conduct of the officers as of March 19,

1987, it is plain that the standard of deliberate indif-

ference to serious medical needs is a standard that was

applicable as of that date. Other cases establishing a

different standard such as Spell v. McDaniel, supra, and

Cooper v. Dyke, 814 F.2d 941 (4th Cir., 1987) were de-

cided after March 19, 1987, the date of Mr. Buffington’s

death. Because police officers are not required to antici-

pate the future course of case law decisions and are

only required to conform their conduct to clearly estab-

lish law, it is plain that the standard of deliberate indif-

ference is the only standard that is properly applicable

as a basis for evaluating the conduct of the officers with

regard to the Federal claims presented in this litigation.

A straightforward application of the vequirement of

deliberate indifference plainly requires a dismissal of the

Federal claims against each of the individual Defendants.

For the reasons stated herein, the Defendants respect-

fully request this Honorable Court to rule upon the

Motions for Directed Verdict and that these Motions be

granted entering Judgments in favor of these Defendants

as a matter of law.

26a

APPENDIX D

[973]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

VOLUME 9

Civil Action No. JH-87-3284

BARBARA BUFFINGTON, Individually and as Personal Rep-

resentative of the Estate of JAMES E. BUFFINGTON, De-

ceased and DAvip M. BUFFINGTON, Individually

-V-

BALTIMORE COUNTY, MARYLAND,

CORNELIUS J. BEHAN, et al.

The above-entitled matter continued on trial before the

Honorable Joseph C. Howard, and a jury, commencing at

10.00 a.m. on January 12th, 1989, at Baltimore, Maryland.

APPEARANCES

On behalf of the Plaintiffs:

William F. Gately, Esquire

Daniel W. Whitney, Esquire

On behalf of the Defendants:

John A. Austin, Esquire

James G. Beach, III, Esquire

* * * +

Mconite, neaernertaths BOLD

2Ta

[1032] THE COURT: Let the record show that the

plaintiff has rested their case.

Are there any motions?

MR. AUSTIN: Yes, Your Honor, thank you. At this

time on behalf of each and every one of the defendants

we would move for judgments in their favor, and we

would initially, of course, move for judgments in favor

of all of the individual defendants in their personal ca-

pacities, there being no testimony whatever that they

acted other than in their official capacity as police officers.

Secondly, we would at this time submit for Your

Honor’s further consideration the points made in the

' motion for judgments NOV that is currently before the

Court and has been reserved as well as the points and

authorities and arguments prepared in the memorandum

that accompanied that motion.

In addition, Your Honor, I would also like to make the

following points in support of the motion. The first point

is with respect to the civil rights claim under Section

1983. The [1033] standard must be proof of deliberate

indifference of the various individual defendants involved,

including Chief Behan, and deliberate indifference is

synonymous with wanton neglect, with willful misecaduct

in regard to the serious medical needs of persons such as

Mr. Buffington.

None of the expert witnesses in this case have identified

any actions on the part of these officers that violate that

standard. The expert witnesses talked about a lot of

things, ACA standards, AMA standards, numbers of writ-

ten commentaries, but none of them flatly stated that

what the officers did was deliberately indifferent or in

violation of any of the case law standards that have been

handed down with respect to handling suicidal detainees.

All they said was they did not follow some of these guide-

lines, some of which are merely suggestions for action,

but in no place did I hear any of the expert witnesses

say this conduct amounted to deliberate indifference or

was even negligent.

28a

But again, if the conduct was tc be considered only

merely negligence, that is not deliberate indifference and

that did not give rise to any claims under Section 1983.

Further, with respect to Chief Behan, he must be con-

sidered to be indifferent in the manner in which he ad-

ministers the department. The evidence does not show

that. The only dispute can be is whether or not he may

have done things differently or better, but it is clear he

was doing some [1034] things, and to have deliberate in-

difference you must really have almost total inaction or

action that is of little consequence, and there has been

no testimony that what Chief Behan did was of no con-

sequence or made little difference with respect to running

the department, but rather only these experts had a

difference of opinion as to whether or not he was doing

enough; and that’s not enough to go to the jury on the

civil rights claim.

As to the negligence counts, under the state law

claims, again we would reassert governmental immunity

and public official immunity on behalf of -these officers in

Balitmore County. Again, if what has been proven is

negligence they are immune. With reSpect to good faith

immunity, I think it’s clear that all of the officers have

this and that the evidence indicated, to this point has

indicated that they all acted in good faith with respect

to trying to discharge their responsibilities in this regard.

With respect to Chief Behan, it’s clear from his testi-

mony or the testimony that the defendant elicited from

him through deposition that he acted in good faith with

respect to trying to administer to the defendant properly,

and in trying to observe all the legal guidelines. I believe

his deposition testimony was on point. He attempted to

have the department monitor and observe all current

trends in the law in that regard. I believe the evidence at

this point, is that there is [1035] no dispute at this point

as to his good faith administration of the department

which removes him from liability under Section 1983.

Other than that, Your Honor, we would rest on the

points made in our memorandum. Thank you.

* * 7 vw

29a

APPENDIX E

[973]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

VOLUME 9

Civil Action No. JH-87-3284

BARBARA BUFFINGTON, Individually and as Personal Rep-

resentative of the Estate of JAMES E. BUFFINGTON, De-

ceased and DAVID M. BUFFINGTON, Individually

-V-

BALTIMORE COUNTY, MARYLAND,

CORNELIUS J. BEHAN, et al.

The above-entitled matter continued on trial before the

Honorable Joseph C. Howard, and a jury, commencing at

10:00 a.m. on January 12th, 1989, at Baltimore, Mary-

land.

APPEARANCES

On behalf of the Plaintiffs:

William F. Gately, Esquire

Daniel W. Whitney, Esquire

On behalf of the Defendants:

John A. Austin, Esquire

James G. Beach, III, Esquire

* * . *

30a

[1153] MR. GATELY: Motions, Your Honor?

THE COURT: All right.

MR. AUSTIN: What’s your pleasure on motions?

Can we argue them now or tomorrow morning.

THE COURT: What’s your pleasure? I will be here

tomorrow morning.

MR. AUSTIN: We just have to put it on the record

and we can do either today or tomorrow.

THE COURT: We can get it down while you’re talk-

ing about it.

MR. AUSTIN: Fine, thank you.

Your Honor, at this time I would move for judgment in

favor of each and every one of the defendants and as to

each and every one of the claims, and I would like to

briefly summarize the arguments that I made previously

and the arguments that we made in our motion for di-

rected verdict and for motion notwithstanding the verdict,

which motions Your Honor has currently reserved on at

this time.

Your Honor, with respect to the federal claims, and

I’ll start with the federal claims, as against Baltimore

County, Maryland, there must be a custom, policy, prac-

tice or usage causing the constitutional deprivation that

must be proven. Again, the only custom, practice and

usage that has [1154] been zeroed in on in this case

has to do with policies, rules, regulations and training.

Now, in order for that training to be the proximate

cause of the constitutional deprivation, the training must

be so inadequate as to amount to no training at all. That

is, there must be a policy of inadequate training, and

inadequate training in the sense that the training is

superficial or it’s minimal, and I think there has been

the evidence before the Court at this point on the situa-

tion of training is that while there may be disagreement

among the expert witnesses as to what training is re-

quired or whether or not the department was doing

enough. I think the testimony you have from the chief and

3la

from Officer Hann is that a great deal of training is going

on, perhaps not to the satisfaction of everyone but cer-

tainly training that has been approved by people knowl-

edgeable in the field and it’s given to all officers and is

repeated.

And with respect to Baltimore County doing training,

that is more than minimal. I think we clearly have a

policy that this training has been furnished, the training

is constitutiora!lly adequate, and there is really no dispute

for the jury to resolve with respect to whether or not it

might have been better. It is above the constitutional

threshold and therefore whether or not it might have been

better is simply not an issue for the jury to resolve.

With respect to rules and regulations, the same thing

[1155] is true, and again with respect to that you’ve

heard a great deal of testimony about the CALEA stand-

ards and how they apply and cover this whole area.

In summary, Your Honof, as to Baltimore County,

Maryland, there is no proof of a policy or custom or

practice or usage that would bring them in under Section

1983, and we would ask for—again they are, except for

proof of those elements, Baltimore County as a munici-

pality has no liability.

As to the individual officers, I’ll start with Chief Behan.

Again, as to Chief Behan it must be shown that he was

totally indifferent in his management of the department

and in those areas that could have proximally caused the

constitutional deprivation, and those areas would have to

be training and supervision of the officers or rules and

regulations. We have his testimony, which we believe

there is no dispute from the other evidence in the case,

that indicates that he was not deliberately indifferent,

deliberately indifferent in the sense of being—again I’ll

quote from some of the cases. There must be wanton

action, that is action indifferent or to be of so little con-

sequence as to amount to no action at all; that is action

in the face of a persistent need that simply does not

address that need in any way. And we do not have the

evidence of that with respect to Chief Behan.

32a

Again, he also has good faith immunity as a public

official, He acts in good faith to bring his conduct in

[1156] compliance with accepted standards, and he is

entitled to that good faith immunity. Again, his testi-

mony was extensive as to what he has done to try to

bring the department and the operations for which he is

responsible into compliance with constitutional ‘tandards.

Again, good faith applies in two ways: One, either

you don’t know of a constitutional requirement or act in

good faith with respect to trying to otherwise conform

to it, or you know of a constitutional requirement and

make good faith efforts to bring your conduct in com-

pliance with it. It is the seeond part that applies to

Chief Behan. He was aware of what was required and

he took actions in good faith to address those problems,

and we don’t feel there is a jury issue on that point

either. And his testimony as to what he has done over

the years is not really controverted by any of the other

evidence.

As to the individual officers, with respect to Captain

Kramer, there is no finding of superior liability on his

part. As a commander there is no indication he did any-

thing else that would subject him to liability under Sec-

tion 1983. Particularly with respect to training, there

was no specific responsibility for it on his part to Uo

the training. The training was done by other people;

therefore, he could not have been significantly indifferent

with respect to the training programs.

There is no other indication that he was significantly

[1157] indifferent. He of course was not present, had no

part in it, and there is simply no evidence that would

tie him in to the basic constitutional claims that the

suicide death of Mr. Buffington was proximally caused by

deliberate indifference to serious medical needs by any

actions of Captain Kramer.

With respect to the other individual officers, I start

with Officer Maeser. Again, Mr. Kirkland testified that

Officer Maeser’s conduct would be entirely correct if he

33a

communicated the information on Mr. Buffington to the

other officers. Officer Maeser testified exactly that. His

testimony was supported by the other officers. Again,

Officer Maeser was not there when Mr. Buffington was

placed in the cell. There simply is no evidence to indicate

that he, one, had knowledge of the serious medical needs

or, two, was in a position to be significantly indifferent

to it, having been relieved at the point in time in which

action was required to have been taken.

Again, deliberate indifference contemplates either

taking no action or taking perhaps inappropriate or in-

adequate or insufficient action in response to a serious

medical need. That contemplates not only knowledge of

that action but an opportunity to do something, and if

Officer Maeser was no longer there, he no longer had an

opportunity to do anything. He could not be deliberately

indifferent.

Certainly with respect to Sergeant Yuska, again, a

[1158] person would have to know and have an oppor-

tunity to act on the circumstances. Sergeant Yuska had

an opportunity to act but he had no knowledge of the

particulars of the suicide and again could not be delib-

erately indifferent for not acting upon that which he

did not know.

With respect to Officer Tucker, the same situation. He

was at the desk and was in a position to act, had some

limited knowledge, but again relied upon what Officer

Gaigalas did and was entitled to rely upon that.

With respect to Officer Harvey, he had knowledge but

was not in a position to act as he was not aware where

the prisoner was at the time the decision was made to

put him in the lockup.

The same is true with Sergeant Gribbin. He had

knowledge but did not have the opportunity or control

over the prisoner at the time. As to both of these of-

ficers, they had in fact acted in good faith with respect

to setting in motion the necessary events to secure that

medical attention for him. They had begun an emer-

34a

gency evaluation and they were seeing to it. Again, that

therefore brings in their good faith immunity. They

knew what the standard was, they were acting in fur-

therance of that in an effort to secure the necessary

medical need, medical needs, and secure attention to the

medical needs, and unfortunately the prisoner committed

suicide before that could be realized.

[1159] Again with respect to Officer Gaigalas, he tes-

tified that he knew of the emergency evaluation but not

that the gentleman was suicidal. There is a lack of

knowledge in his circumstances, and again there are tes-

timony at best generally not deliberate indifference but

only proof of errors in judgment or inadvertence and at

best negligence, and negligence has never amounted to

deliberate indifference. In fact, the Supreme Court held

that negligence is not actionable under Section 1983; and

again the leading cases on that are Daniels vs. Williams

Davidson versus Cannon. Again, in one of those cases a

correctional officer was sued because he had not passed

along a note that contained threats, and the Court held

that that failure to pass along was inadvertence. He was

negligent but was not culpable under Section 1983. .

As to all of these that same standard should apply

with respect to 1983.

As to all the officers in their individual capacity as

opposed to their official capacity, there is no evidence

there and the judgment should be entered in their per-

sonal capacities as to each and every one of them. They

were taking actions only as police officers and not per-

sonally with respect to the events that lead up to the

death of James Buffington.

As to the state law claims, again we have immunity.

As to Baltimore County, Maryland, the operation of a

police department is a governmental function and in

governmental [1160] versus proprietary the only issues

that are involved there, and again operating the police

department has held to be governmental, the only question

is one of waiver and we have addressed that in our

35a

memo; and clearly the case law both from the Court of

Appeals of Maryland as well as from the 4th Circuit

indicates that there has to be a specific waiver of govern-

mental immunity, that it cannot be implied from the ex-

istence of a program of self-insurance.

With respect to the individual defendants they all have

public official immunity and that immunity applies to

nonmalicious acts performed within the scope of their

authority. No question that they were undertaking acts

in the scope of their authority, and the best that has

been proven is that there was negligence with respect

to their handling of this prisoner. There is no proof of

malice. Malice must be proven to be actual malice, that

is an act done without legal justification or excuse, an

evil or rancorous motive influenced by hate, the purpose

being to deliberately and willfully injure the plaintiff.

There is no evidence of that at all.

Again, the very best that there can be is some evi-

dence of negligence. Negligence is not actionable. Public

official immunity specifically prohibits any actions on neg-

ligence in situations in which you have police officers ex-

ercising the police powers of the state. We have exactly

that here. With respect to the state claims, all these

[1161] officers have pubic official immunity that now re-

quires, there being no proof of actual malice, that judg-

ment be entered in their favor as to the state counts as

well.

For all these reasons, Your Honor, we would ask that

you take this case away from the jury. The various

immunities no longer require there to be anything for

the jury to adjudicate with respect to the liability of

these officers, and we ask the judgments be entered in

their favor. Thank you.

* 2 * *

36a

APPENDIX F

[1175]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

VOLUME 10

Civil Action No. JH-87-3284

BARBARA BUFFINGTON, Individually and as Personal

Representative of the Estate of

JAMES E. BUFFINGTON, DECEASED

and

DAVID M. BUFFINGTON, Individually

-V-

BALTIMORE COUNTY, MARYLAND,

CORNELIUS J. BEHAN, et al.

The above-entitled matter continued on trial before the

Honorable Joseph C. Howard, and a jury, commencing

at 10:00 a.m. on January 17th, 1989, at Baltimore

Maryland.

APPEARANCES

On behalf of the Plaintiffs:

William F. Gately, Esquire

Daniel W. Whitney, Esquire

On behalf of the Defendants:

John A. Austin, Esquire

James G. Beach, III, Esquire

* * * *

37a

[1183] The plaintiffs’ claims arise out of a suicide

committed by their son James at the Wilkens Precinct

prisoner lockup in the early morning hours of March

the 19th, 1987.

Plaintiffs’ claim can be broken down into two parts.

The first part consists of constitutional claims and the

second consists of state law claims for negligence.

Now, the first part of this case involves the constitu-

tional rights of pretrial detainees. _By detainees I mean

persons in police custody who have not been tried or con-

victed of any crime. These constitutional rights of de-

tainees place clearly defined constitutional duties on in-

dividual police officers, police chiefs, and municipalities

such as counties.

In this case the plaintiffs claim that James Buffington’s

constitutionai rights as a pretrial detainee were violated

and that the defendants failed to comply with their duties

under the constitution.

James Buffington was a detainee at the Wilkens Pre-

einct on March 19th, 1987, and was in protective cus-

tody awaiting transfer to the hospital for an emergency

psychiatric evaluation.

The constitution requires that police officers protect

the safety of persons within their custody, and in the

instructions that will follow I will inform you as to the

[1184] precise nature of this duty.

Police officers have a specific constitutional duty to

provide needed medical care to the persons within their

custody. The constitution requires that medical care be

given for psychological and psychiatric ills as well as

physical ills. The constitution is violated by deliberate

indifference to a serious medical need of a detainee.

The term deliberate indifference as used throughout

these instructions has a precise constitutional meaning.

Deliberate indifference exists when the conduct of any

defendant gives rise to a strong likelihood, rather than

mere possibility, that such conduct would result in harm

to the detainee.

38a

The plaintiffs need not prove that the conduct of the

defendants was expressly intended or designed by them

to cause harm to the detainee Buffington. It is only neces-

sary that the plaintiffs prove that under the existing

circumstances the defendants’ conduct created a strong

likelihood of harm to James Buffington.

If your ordinary understanding of the term or words

deliberate indifference differs from the definition that I

have just given you, you must disregard your usual un-

derstanding. As jurors you must apply the constitutional

definition of deliberate indifference.

As a part of the constitutional duty to provide [1185]

medical care, the constitution requires that police of-

ficers protect a detainee from committing suicide if they

are aware that the person in their custody is suicidal

and needs emergency psychiatric treatment. The failure

to do so can amount to deliberate indifference in the con-

stitutional sense. ;

Now, on the other hand, you are instructed that those

who confine a detainee cannot be placed into a position of

guaranteeing that a detainee will not commit suicide if

they have no knowledge that he is suicidal.

You must consider the liability, if any, of each of

the defendants separately and independently.

As to the constitutional claims, in order for you to

return a verdict in favor of the plaintiffs and against

the defendants Harvey, Gribbin, Yuska, Maeser, Tucker

and Gaigalas, the plaintiffs must prove the following

facts:

One, that these officers knew or should have known

that James Buffington was suicidal;

Two, that their conduct in placing or permitting Buf-

fington to be placed in a cell by himself created a strong

likelihood that James Buffington would commit suicide

while locked in the female cell;

And, three, that their conduct proximately caused the

suicide.

39a

[1199] THE COURT: Mr. Austin.

MR. AUSTIN: Thank you, Your Honor. Your Honor,

our first exception would be the Court’s failure to give a

good faith instruction under the federal claims, that is

the federal good faith immunity, and again in that re-

gard we would proffer to the Court our proposed instruc-

tions number 1, 2 or 3 is an appropriate definition or the

definition given by the Court of Appeals in the footnote

in Cooper versus Dyke, D-Y-K-E, 814 F.2d 941, an in-

struction given by Judge Harvey approved by the Court

on that occasion. Under the federal claims federal in-

structions, Your Honor, the proximate cause instruction

Your Honor gave was more of a reasonably foreseeable

instruction rather than a proximate cause instruction.

THE COURT: I gave it twice.

MR. AUSTIN: Once for the state or federal claims.

To avoid confusion there is a different standard for these

claims. I ask the Court to give an additional instruction

on proximate cause to instruct the jury proximate cause

is proximate cause. There is no distinction. Again I

think the instruction you gave, at that point in the in-

struction I think you were talking about the federal

claims, did not go far enough in that regard.

THE COURT: Let me simply interject here. We

have met three times to go over these instructions. I note

that at [1200] least one of those times you weren’t pres-

ent. We gave counsel an opportunity to make any ob-

jections or corrections or change in language. I think

that’s a fair statement, isn’t it?

MR. WHITNEY: Yes, it is, Your Honor.

MR. AUSTIN: .Yes, Your Honor. On one of those

occasions I suggested the instruction from Cooper v Dyke

the Court approved in footnote number 3, and we would

again urge it to be given.

Your Honor, with respect to the instruction on delib-

erate indifference, Your Honor’s instruction we feel does

not go far enough. We would ask—there is nothing

wrong with it as it’s given, but we would ask the Court

40a

to instruct the jury along the lines of the Cooper v Dyke

instruction or the instruction—

THE COURT: When did you give that to the Court?

MR. AUSTIN: On Friday after the conference with

Mr. Cook. I referred Your Honor’s law clerk to the lan-

guage in Molten versus City of Cleveland, 839 F.2d 240

at 243 and the statement of the Court in Matjer v Leis,

571 Fed.Supp. 918. We would ask that those instructions

be given because of the language there, those cases being

jail suicide cases that we feel is a necessary supplement

to instructions that are already given.

Your Honor, with respect to the instruction that you

gave that, I’m relying on memory but it was something

to the [1201] effect that the police officers have a duty to

protect an inmate from committing suicide, we would ob-

ject to that instruction as not being law. The law is the

officers have a duty to give medical care and not be de-

liberately indifferent to medical needs. There is no con-

stitutional standard requiring inmates to be protected

from committing suicide.

With respect to Your Honor’s instruction about pro-

tecting an inmate, that protection instruction is not sup-

ported by the facts of this case. There was no evidence

this inmate needed protection from anything else, that is

other persons. Protection from other than committing

suicide, which we have already argued is not the law,

it’s not the standard. The deliberate indifference stand-

ard is the standard. To go beyond that is to give the

jury an additional reason for deciding against the officers.

Your Honor, with respect to the Court’s definitions con-

cerning Captain Kramer and Chief Behan, Your Honor

has instructed the jury that the custom and policy must

be unconstitutional, but I think what Your Honor should

additionally tell the jury is custom and policy must be not

only unconstitutional but the custom and policy must

proximately cause the injuries complained of. I don’t

think that was highlighted sufficiently in the same con-

text so the jury can tie it together.

4la

Again I would object to Your Honor’s instruction that

[1202] any customs or policies known to Captain Kramer

are a basis for imposing liability on Baltimore County.

That is an error based on the facts of this case, which

the testimony is clear Chief Behan alone makes policy

for Baltimore County. He’s the only policy maker, that is

a defendant in this case. Captain Kramer, is not a policy

maker and so therefore any actions or inactions on his

part cannot be attributed to Baltimore County as making

policy because he’s not a policy maker. We would ask

that the Court strike that part of the instruction because

the facts do not support that instruction in this case.

Your Honor also gave an instruction on the missing

evidence instruction, that we would ask the Court to strike

because there is no missing evidence, there is no evidence

that has not been produced.

THE COURT: I didn’t say anything about missing.

MR. AUSTIN: I’m using that as a generic term. I

don’t think there was any testimony that any evidence

was missing or suppressed or destroyed, so I don’t feel

it’s supported by the facts of this case.

THE COURT: All right.

MR. AUSTIN: With respect to the instructions on

Chief Behan and Captain Kramer about a policy of in-

adequate monitoring or supervision of detainees, we be-

lieve that instruction to be erroneous and invites a re-

spondeat superior verdict against the chief and Captain

Kramer or against [1203] Baltimore County.

There is no evidence of inadequate monitoring or super-

vision of detainees. We would object to that being given.

It invites a verdict based upon a policy that has not been

proven. The only policy that has been attributed to any-

one was a policy that was facially constitutional, the

Yuska/Perpura policy. That policy was facially constitu-

tional and could not have caused any constitutional vio-

lations.

Your Honor, with respect to the Court’s instructions

under the federal courts with respect to punitive damages,

again you have identified reckless and callous indifference

42a

to constitutional rights of the plaintiff and equated that

with the standard to overcome deliberate indifference,

and we feel that is incorrect, that the standard for puni-

tive damages should be actual malice.

Your Honor, with respect to the state instructions, we

would object to the Court’s refusal to give the instruction

on public official immunity. We feel it is raised in the

ease. It has been raised throughout the case and is part

of this case and the jury should be instructed on it.

It’s an affirmative defense and I object to Your Honor’s

failure to giving an instruction on it.

With respect to the actual malice instruction required

for an award of punitive damages under state law, we

feel that same instruction should be given with respect to

[1204] federal law, with the exception that there should

be no instruction on implied malice. The standard is one

of actual malice and implied malice is not the law. Im-

plied malice appears in constructive fraud cases, slander

and deceit cases, but not a case like this.

Finally, with respect to the negligence counts as such

the jury should be instructed and the sheets should be

revised to show no punitive damages should be awarded

for negligence to anyone. You only instructed the jury

that the estate can recover punitive damages and not

Mr. and Mrs. Buffington as state law plaintiffs. As to

that point, Your Honor, we would strongly object to

there being any allowance of punitive damages in favor

of any party as to the state law counts.

We would cite for Your Honor’s reference Medina

versus Meilhammer, 62 Md.App. 239, in which the Court

reversed the judgment entered for punitive damages with

respect to a negligence action and it did so in language

that says that what is required as a legal equivalent of

malice is conduct of an extraordinary outrageous nature.

There is no evidence of that kind of conduct in this case

and therefore punitive damages as a claim should not go

to the jury.

Finally, Your Honor, with respect to Your Honor’s

instruction concerning state law claims and the instruc-

43a

tion of Baltimore County can be found liable under what

I will term a [1205] respondent superior instruction

should not have been given in Baltimore County, it should

be dismissed. That’s the state law claims. There is no

basis for that instruction because as a matter of law

they should not be in the case.

Again as to that point also, if Your Honor were to

give the public official immunity instruction, the jury

would have before them a necessary finding the individ-

ual officers are immune by virtue of their public official

immunity, then Baltimore County is also immune be-

cause the principal cannot be liable to the agent if he’s

not liable.

Finally, Your Honor, we would ask the Court at this

time to dismiss Mr. Maeser, Officer Maeser, as a defend-

ant based upon the concession made in closing argument

by Mr. Gately that really there was no evidence against

him. There is no point sending this case to the jury and

keeping Officer Maeser on the hook as to this case. In

view of that there simply is nothing for the jury to de-

cide. We would ask that Officer Maeser be dismissed, the

verdict sheet be amended so as to strike his name out,

Your Honor, enter a judgment in his favor at this time

as a matter of law, instruct the jury not to consider his

liability at all.

THE COURT: Don’t say finally again.

MR. AUSTIN: That would be all I have, Your Honor.

THE COURT: Let me just ask, when this case goes

up counsel recognize and include in their brief the fact

we had a [1206] first meeting on instructions and you

weren’t there, the second meeting I believe on instruc-

tions you weren’t there, and at each of these conferences

we went over these instructions word by word and I made

those changes that I thought reflected the discussion of

everyone. I just think the Court above should know what

took place. It’s hard to keep up with one who makes ob-

jections and corrections are made, then another person

comes in.

* * * *

44a

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. J H-87-3284

BARBARA BUFFINGTON, et al.,

Plaintiffs,

Vv.

BALTIMORE COUNTY, MARYLAND, et al.,

Defendants.

MOTION FOR A DIRECTED VERDICT AND FOR

JUDGMENT NOTWITHSTANDING THE VERDICT

[Filed Jan. 27, 1990]

Baltimore County, Maryland, Cornelius J. Behan, Of-

ficer Ronald L. Tucker, and Officer Donald Gaigalas,

Defendants, by their undersigned attorneys, move this

Honorable Court pursuant to Rule 50 of the Federal

Rules of Civil Procedure for a directed verdict in favor

as a matter of law, or, in the alternative, for the entry

of a Judgment notwithstanding the verdict and as

grounds therefore state as follows:

1. That the within proceedings were tried before a

jury, which Jury returned a verdict on or about Janu-

ary 19, 1989, as reflected in the attached Verdict Sheet,

a copy of which is attached hereto and prayed to be made

a part hereof and is marked Exhibit “A”.

2. Prior to the case being submitted to the Jury, all of

the Defendants moved for a directed verdict in their

favor at the close of all of the evidence asking that the

45a

Court enter Judgment in their favor as a matter of law.

At that time, this Court reserved its ruling on that Mo-

tion and no further ruling has been made on said Motion

subsequent to the conclusion of the trial as aforesaid.

3. That prior to the commencement of the aforesaid

trial, an earlier Motion for a Directed Verdict or for

Judgment Notwithstanding the Verdict was filed on be-

half of these same Defendants on or about December 2,

1988. Said Motion has not been ruled upon at this time,

as the Court has reserved its rulings until after the

Jury has returned its verdict.

4. That because of the verdicts returned by the Jury,

the Motions are moot with respect to certain of the De-

fendants, namely, the Defendants Corporal (now Ser-

geant) Joseph Gribbin, Officer L. S. Harvey, Sergeant

Daniel Yuska, Officer William L. Maeser, and Captain

Kenneth W. Kramer. Pursuant to the provisions of Rule

50 of the Federal Rules of Civil Procedure, the Defend-

ants, Baltimore County, Maryland, Cornelius J. Behan,

Officer Ronald L. Tucker, and Officer Donald Gaigalas,

are now entitled to have the rulings previously reserved

by this Court reviewed and adjudicated as a matter of

law at this time.

5. That as a matter of law, there is no Federal sur-

vivorship action as alleged in Count II of the Amended

Complaint, and therefore, the verdicts rendered under the

Federal claims in favor of the Plaintiffs should now prop-

erly be stricken as a matter of law.

6. That the verdicts that were returned in favor of

the Personal Representative of the Estate of James Buf-

fington for the conscious pain and suffering suffered by

the Plaintiff’s Decedent should properly be stricken as

there was no evidence presented before the Jury that the

Plaintiff’s Decedent suffered any conscious pain and suf-

fering in the moments prior to his death. Accordingly,

the verdict rendered on these claims by the Jury should

properly be stricken as a matter of law.

= “ ee oe ee ee ee, ee ee ey ee Se ee ee ee ee ee ee ee SS ee eee ee ey Oe ee ee n

46a

7. That the Defendants because of the immunities

available to them, particularly including, qualified good

faith immunity with respect to the Federal Claims, are

entitled to have this Court enter Judgment in their favor

as a matter of law.

8. These Defendants incorporate by reference the pre-

vious arguments presented during the aforesaid trials in

connection with the Motions for Directed Verdict made

at the close of all of the evidence. In addition, the De-

fendants incorporate herewith by reference the attached

Memorandum of Points and Authorities submitted in sup-

port of this Motion.

For the reasons stated, the Defendants, Baltimore

County, Maryland, Cornelius J. Behan, Officer Ronald L.

Tucker, and Officer Donald Gaigalas respectfully request

this Honorable Court enter directed verdicts in their fa-

vor as a matter of law and that Judgments be entered on

these verdicts in their favor, assessing costs against the

Plaintiffs as appropriate.

* * a *

47a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil Action No. JH-87-3284

BARBARA BUFFINGTON, et al.,

Plaintiffs,

Vv.

BALTIMORE COUNTY, MARYLAND, et al.,

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES

* * * *

IV. Individual Defendants—Federal Claims

The Jury returned verdicts under 42 U.S.C. Section

1983 against Chief Behan and Officers Turcker and Gaig-

alas. As has been noted previously, these verdicts are in-

herently inconsistent with the verdicts the Jury also re-

turned under the negligence counts against these same

individuals. The Plaintiffs were required to prove that

each of the individual Defendants Behan, Tucker and

Gaigalas were deliberately indifferent in their handling

of Mr. James Buffington, specifically they were required

to prove facts that “clearly evince the medical need in

question and the alleged official dereliction, namely, ‘wan-

ton actions’ on the part of the Defendants.” See Johnson

v. Treen, 759 F.2d 1236 (5th Cir., 1985). As to Chief

Behan, if he was merely negligent in his management of

the Police Department, then Judgment should be entered

in his favor as there is no respondeat superior liability

on his part as Chief of Police for the wrongful acts of

subordinates. See Spell v. McDaniel, supra. No proof

was presented at trial evidencing any conduct on the part

48a

of Chief Behan that demonstrated that he managed the

Department recklessly or with wanton disregard for

proper police standards. At best, the testimony from the

Plaintiffs’ experts was to the effect that the Chief had

failed perhaps to implement every conceivable manage-

ment practice or program of training to prevent suicides.

However, such failures do not amount to wanton conduct

that was required to prove deliberate indifference. See

Roberts v. City of Troy, 773 F.2d 720 (6th Cir., 1985).

Moreover, there is no case law requirement within this

Circuit that imposes upon police managers the require-

ment that all possible precautions be taken in order to

avoid liability under 42 U.S.C. Section 1983. Indeed,

even to sustain a verdict for negligence against Chief

Behan, it will be necessary for there to be testimony es-

tablishing the appropriate standard of care. As noted

previously, there was no such testimony presented during

the trial of this case. Assuming, arguendo, that the

standard of care had been established, no evidence was

adduced that Chief Behan’s conduct was more than merely

negligent with respect to his management of the Police

Department. Accordingly, the verdict against Chief Be-

han should properly be stricken, and the Federal claims

against him dismissed as a matter of law.

With respect to Officer Tucker, there was simply no

causai connection between any conduct on his part and

the placing of Mr. Buffington in a detention cell. It was

undisputed that Officer Tucker had no input into the de-

cision to place Mr. James Buffington into a detention

cell, as he did not speak with either Officer Harvey or

Officer Gaigalas prior to Officer Gaigalas placing Mr.

Buffington in a cell. However, Officer Tucker did not

command, direct or even assist Officer Gaigalas in plac-

ing Mr. Buffington into a detention cell, nor did he have

any other contact with him that would have put him on

notice that Mr. Buffington was so overtly suicidal that

he was required to be detained at the bar in the desk

area. The testimony is clear that only Officer Gaigalas

had this information and that Officer Gaigalas did not

communicate this to Officer Tucker. Accordingly, the

Jury’s verdict against Officer Tucker cannot be sustained

for there is no evidence that any conduct of his prox-

imately caused the death of Mr. Buffington. Further,

there is no evidence that Officer Tucker was deliberately

indifferent te Mr. Buffington’s serious medical needs, or

that he even had actual knowledge of the nature and ex-

tent of Mr. Buffington’s medical needs. As has been re-

peatedly argued throughout these proceedings, proof of de-

liberate indifferent requires evidence which clearly dem-

onstrates knowledge of the medical need in question and

conduct with respect to the prisoner and the known med-

ical need that wantonly or recklessly disregarded the

seriousness of the medical need. See Sosebee v. Murphy,

797 F.2d 197 (4th Cir., 1986). As to Officer Tucker,

there is no evidence that he had knowledge of the full

nature and extent of Mr. Buffington’s emotional deter-

ioration sufficient to require him to intervene and over-

rule Officer Gaigalas’ handling of the situation. In short,

there was no conduct on his part that was deliberately

indifferent to a known serious medical need of Mr. Buf-

fington. There was, therefore, no basis upon which the

Jury could return a verdict against him, and thus, the

same verdict should now properly be stricken and Judg-

ment entered in favor of Officer Tucker.

With respect to Officer Gaigalas, at best, the evidence

adduced against him demonstrates mere errors in judg-

ment on his part or an inadvertent failure to take ap-

propriate action by maintaining Mr. Buffington at the

bar. There was no evidence of wanton or reckless con-

duet on the part of Officer Gaigalas, and the Jury’s ver-

dict rejecting the Plaintiffs’ claims for punitive damages

is evidence that the Jury felt that no wanton or reckless

conduct had been proven. Indeed, the Court’s instructions

on this point were to the effect that the standard for

finding deliberate indifference was the same standard re-

quired for awarding punitive damages. If it is assumed

that the Jury faithfully followed these instructions, then

their verdict denying punitive damages of necessity re-

quired a factual finding that Officer Gaigalas was not

wanton or reckless in his handling of Mr. Buffington. Be-

cause the standard of deliberate indifference and for

punitive damages are the same, the Jury’s verdict against

Officer Gaigalas must have plainly rested upon findings

by them that he was merely negligent in his conduct with

respect to the safety of Mr. James Buffington. For all of

these reasons, the verdicts against Officer Gaigalas should

now properly be stricken, and Judgments entered in his

favor as a matter of law.

* * * *

APPENDIX H

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RECORD NO. 88-1161 (L)

CONS. W/89-1021, 1040, 1054 and 1055

BARBARA BUFFINGTON, et al.,

Appellees,

Vv.

BALTIMORE COUNTY, MARYLAND, et al.,

Appellants.

BRIEF OF APPELLANTS

APPEAL FROM THE UNITED STATES

DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Arnold Jablon Robert B. Green

County Attorney Charles M. Kerr

Michael J. Moran IRWIN, KERR, GREEN,

Thomas K. Farley MCDONALD & DEXTER

Assistant County Attorneys Suite 1133

Baltimore County Office of Law 250 West Pratt Street

Second Floor, Old Courthouse Baltimore, Maryland 21201

Towson, Maryland 21204 (301) 659-5757

(301) 887-5657

Counsel for Appellants Counsel for Appellants

52a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 88-1161 (L), 89-1021,

89-1040, 89-1054

BARBARA BUFFINGTON, et al.,

Plaintiffs-Appellees

Vv.

BALTIMORE COUNTY, MARYLAND, e¢ al.,

Defendants-Appellants

APPELLANTS’ BRIEF

THE STATEMENT OF ISSUES

1. Is there a right which exists pursuant to the Four-

teenth Federal Constitution which guarantees an indi-

vidual, in the police custody as a result of a request for

assistance from the family, protection by the State from

suicide?

2. If no such right exists, are the individual Appel-

lants immune from liability?

* * * aa

53a

ARGUMENT

I. THERE IS NO RIGHT WHICH EXISTS, PUR-

SUANT TO THE FOURTEENTH AMEND-

MENT TO THE UNITED STATES CONSTITU-

TION, WHICH REQUIRES THE STATE TO

PROTECT FROM SUICIDE THE INDIVIDUAL

WHO COMES INTO CUSTODY OF THE STATE

AS A RESULT OF A REQUEST FOR EMER-

GENCY ASSISTANCE FROM THE FAMILY.

The Due Process Clause of the federal constitution im-

poses upon the State“ no duty that the State protect an

individual from suicide, when that person has come into

the custody of State agents as a result of a request for

emergency assistance by the family. The Due Process

Clause, by its own terms, is a restraint * against the gov-

ernment’s exercise of power, against its citizens, in

either an arbitrary or oppressive manner. That Clause

of the Constitution is “not . . . a guarantee of certain

minimal levels of safety and security. It forbids the

State . . . to deprive individuals of life, liberty, or prop-

erty, without ‘due process of law,’ but its language can-

not fairly be extended to impose an affirmative obligation

on the State to ensure that those interests do not come to

harm through other means.” DeShaney v. Winnebago

County Department of Social Services, 489 U.S. ,

109 S. Ct. ——, 103 L.Ed.2d 249 at 258-59 (1989) (hold-

ing that the Department was under no obligation to pro-

tect a child from violence of the custodial parent, where

the social workers knew of the father’s violent propensi-

ties).

11 For purposes of actions initiated under Title 42 U.S.C. Section

1983, “State” includes local governments and municipalities. Monell

v. Department of Social Services, 436 U.S. 659, 98 S. Ct. 2018, 56

L.Ed.2d 611 (1978).

12“TNjor shall any State deprive any person of life, liberty, or

property, without due process of law. .. .”

54a

Here, the record is clear that James Buffington came

into the custody of Baltimore County police officers upon

the receipt of a request for emergency assistance by

James’ brother and sister-in-law (Apx. 1068-1103; 1104-

23; 1124-1201). Police began to prepare the paperwork

associated with the incident, including a petition for an

emergency psychiatric evaluation at a local hospital (Apx.

1124-1201). It is undisputed that suicide was the cause

of death." It would therefore be anomalous, following

DeShaney v. Winnebago County, supra, to hold the State

accountable for the suicide, when the Due Process Clause

affords no relief against the State for injuries which re-

sult from the violence of a third person.

This construction of the Due Process Clause is en-

tirely faithful to the framers’ intent and is consistent

with jurisprudence of the Supreme Court that, in other

contexts, has held that the limitations imposed upon the

government through the Eighth and Fourteenth Amend-

ments created a guaranty to individuals in police cus-

tody of reasonable medical care and treatment. See, e..,

Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L.Ed.2d

251 (1976) (Eighth Amendment protection against cruel

and unusual punishment requires provision of medical

care to prisoners); Revere v. Massachusetts General

Hospital, 463 U.S. 239, 103 S. Ct. 2979, 77 L.Ed.2d 605

(1983) (Due Process Clause of the Fourteenth Amend-

ment requires responsible governmental agency to pro-

vide medical care to suspects in police custody who have

been injured while being apprehended by police).'* The

philosophy which underpins either line of this authority

is that the State’s deprivation of the individual’s liberty

18 Compare, e.g., Spell v. McDaniel, 824 F.2d 1380 (1987), where

the cause of injury was overt acts of police brutality.

14 There is also a substantial corpus of law among the federal

circuit and district courts which has recognized the prisoner’s or

detainee’s right to protection from suicide through the provision of

medical care and treatment. See, e.g., Patridge v. Two Unknown

Police Officers, 791 F.2d 1182 (5th Cir. 1986).

55a

renders the individual unable to attend to his own medi-

cal needs. Accordingly, it is necessary for the State to

provide such care for the person. Otherwise, a failure

to provide the required medical care would constitute an

abuse of power, through the State’s inaction, proscribed

by the limitations of the Eighth Amendment’s “cruel and

unusual punishment” clause and the Due Process Clause

of the Fourteenth Amendment DeShaney, id., 103

L.Ed.2d at 262. Moreover, the State’s deprivation cf the

liberty of either the convict or the apprehended detainee

vindicates peculiar State interests: punishment of the

convict or detention of the apprehended detainee, incident

to the process of the criminal law. Thus, the State’s

exercise of power, through the criminal law, modifies the

status of the person, permissibly, to that of either a con-

vict or a pre-trial detainee, but only to the extent of the

protections afforded the person by the Eighth and Four-

teenth Amendments. One must, however, read either line

of authority in the context of the State’s motive which

occasioned the deprivation of individual liberty. In one

ease, the State takes from the individual his liberty as a

punishment. In the other, the State deprives the individ-

ual of liberty in order to subject that person to the

criminal law and potential punishment. Neither case,

however, addresses the question of what, if any, right (s)

the Fourteenth Amendment creates in favor of a suicidal

individual whom the police take into custody, in answer

to a distress call from the family, in an effort to give

assistance and psychiatric care, in contrast to the situa-

tion where the State either takes or retains custody over

an individual for the purpose of subjecting the person

either to punishment or the criminal process."

7. * s *

15 The “game plan,” according to the testimony of Officer Lewis

Harvey, was to seek an emergency psychiatric evaluation at the

Greater Paltimore Medical Center, upon application of a petition

(Apx. 1137). The petition process is established pursuant to Mp.

HEALTH-GEN’L CODE ANN. (1982 Repl. Voi), Title 10, Section 10-

56a

Il. IF THE DUE PROCESS CLAUSE OF THE

FOURTEENTH AMENDMENT DOES NOT

CREATE A DUTY UPON THE STATE TO

PROTECT THE INDIVIDUAL FROM SUI-

CIDE, THEN THE INDIVIDUAL APPEL-

LANTS ARE ENTITLED TO ASSERT AND

PREVAIL UPON THE DEFENSE OF QUALI-

FIED IMMUNITY.

Absent a constitutionally secured right, which in turn

may give rise to a duty, the State officer may assert and

prevail upon the doctrine of qualified immunity. The ab-

sence of such a right precludes “contouring” of the right

and it becomes impossible to argue that the State officer

should have known of something which did not exist; see

Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73

L.Ed.2d 396 (1982); Anderson v. Creighton, —— U.S.

, 107 S. Ct. 3034, 9 L.Ed.2d 523 (1988). Accord-

ingly, this Court must reverse the judgment entered

against Appellants Behan, Gaigalas, and Tucker.

620, Part IV, “Emergency Evaluations.” Part IV is one of five

parts of Subtitle 6, Title 10, which, in turn, is a statutory scheme

covering various types of admissions, e.g., veluntary, involuntary,

etc. The Statement of Charges Harvey contemplated completing

was suggested to the family, and agreed upon after consulting

with counsel, as a means of maintaining control ovr Buffington if

the hospital rejected the emergency petition (Apx. 1150; 1081-85).

The “fal] back” position was that police would retain control over

Buffington until the family was able to procure a commitment

(Apx. 1082).

—_

AP ibe Sethe te lan alt OG nth BN ei tah Ni

Shite ie chee Ale

57a

III. ASSUMING THAT THE DUE PROCESS

CLAUSE OF THE FOURTEENTH AMEND-

MENT GIVES RISE TO A DUTY UPON THE

STATE TO PROVIDE PROTECTION FROM

SUICIDE, THE EVIDENCE ESTABLISHES

THAT THE PROXIMATE CAUSE OF THE

SUICIDE WAS THE ACTION OF THE INDI-

VIDUAL DESK OFFICER ALONE, AS OP-

POSED TO ANY IDENTIFIED DEFICIENCY

IN THE COUNTY’S POLICE TRAINING.

* * * *

Here, the proximate cause of suicide, leaving aside the

question of whether the incident was the result of a vol-

untary, deliberate choice by the decedent, was the act

of Appellant Gaigalas of placing decedent in a cell, un-

observed and alone. Gaigalas’ act was done with

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