# Opposition Brief — Gaigalas v. Buffington (Nos. 90-1123, 90-1071) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1522%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 ## Text ‘ — 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 ii 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 7 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 iv 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 2 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 3 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 4 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— 5 —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. 6 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 7 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 8 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. : 9 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 10 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. ; : : 11 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). 12 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 13 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). 14 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 15 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). 16 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 17 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 18 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 19 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 20 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 21 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). 22 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. 23 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). 24 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). 25 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. 26 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 27 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- 28 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 la lla 20a 26a 29a 36a 44a ii 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 la APPENDIX A IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Civil Action No. JH-87-3284 BARBARA BUFFINGTON, et al., Plaintiffs, Ve 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. 2a 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 3a 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- ——— 4a 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 5a (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 6a 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 —_ | ; / : | ; Ta 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, — A 8a 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, 9a 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, V. 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, V. 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 : : i : : ' 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. ig 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 lea [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1522%3A2. Public record. Not legal advice.