Parrish ex rel Lee v. Cleveland
| Decision Date | 18 June 2004 |
| Docket Number | No. 02-2306.,No. 02-2307.,No. 02-2308.,02-2306.,02-2307.,02-2308. |
| Citation | 372 F.3d 294 |
| Parties | Joseph R. PARRISH, Personal Representative of Tony Marcel LEE, deceased, Plaintiff-Appellee, v. Paul CLEVELAND, Defendant-Appellant, and Commonwealth of Virginia; Frank Newman; Kevin Baldassari; Kevin Ponsart; Paul Thompson; John Dooley; Kevin Garlow; Brian Wancik; County of Fairfax; John Thomas Manger, in his official capacity as Chief of the Fairfax County Police Department; Stan G. Barry, in his official capacity as the Sheriff of Fairfax County, Virginia; John Does 1-20; Jane Does 1-20, Defendants. Joseph R. Parrish, Personal Representative of Tony Marcel Lee, deceased, Plaintiff-Appellee, v. Paul Thompson; John Dooley, Defendants-Appellants, and Paul Cleveland; Commonwealth Of Virginia; Frank Newman; Kevin Baldassari; Kevin Ponsart; Kevin Garlow; Brian Wancik; County of Fairfax; John Thomas Manger, in his official capacity as Chief of the Fairfax County Police Department; Stan G. Barry, in his official capacity as the Sheriff of Fairfax County, Virginia; John Does 1-20; Jane Does 1-20, Defendants. Joseph R. Parrish, Personal Representative of Tony Marcel Lee, deceased, Plaintiff-Appellee, v. Kevin Garlow; Brian Wancik, Defendants-Appellants, and Paul Cleveland; Commonwealth of Virginia; Frank Newman; Kevin Baldassari; Kevin Ponsart; Paul Thompson; John Dooley; County of Fairfax; John Thomas Manger, in his official capacity as Chief of the Fairfax County Police Department; Stan G. Barry, in his official capacity as the Sheriff of Fairfax County, Virginia; John Does 1-20; Jane Does 1-20, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Robert Marvel Ross, Assistant County Attorney, Office of the County Attorney, Fairfax, Virginia; John J. Brandt, Brandt, Jennings, Roberts & Snee, P.L.L.C., Falls Church, Virginia, for Appellants. Peter Christopher Grenier, Bode & Grenier, L.L.P., Washington, D.C., for Appellee. ON BRIEF: David P. Bobzien, County Attorney, Peter D. Andreoli, Jr., Deputy County Attorney, Office of the County Attorney, Fairfax, Virginia; James R. Parrish, Brandt, Jennings, Roberts & Snee, P.L.L.C., Falls Church, Virginia; David J. Fudala, Surovell, Markle, Isaacs, Davis & Levy, P.L.C., Fairfax, Virginia, for Appellants. Saul Jay Singer, Bode & Grenier, L.L.P., Washington, D.C., for Appellee.
Before LUTTIG, WILLIAMS, and KING, Circuit Judges.
Reversed and remanded with instructions by published opinion. Judge WILLIAMS wrote a separate opinion and announced the judgment at the court. Judge KING wrote an opinion concurring in the judgment. Judge LUTTIG wrote a dissenting opinion.
Early in the evening of May 22, 2001, Fairfax County police officers arrested Tony Marcel Lee on suspicion of being drunk in public. After processing Lee at a substation and placing a "spit mask" over his head, the officers placed the handcuffed Lee in the back of a police van to transport him to an adult detention center where medical care was available for intoxicated detainees. En route, Lee vomited and later died. An autopsy revealed the cause of death to be aspiration of gastric content and positional asphyxia, with Lee's 0.35 percent blood alcohol content being a contributing cause. Appellee Joseph R. Parrish, acting as personal representative for Lee, brought suit against the five individual officers who handled Lee while he was in custody (the "officers" or "individual defendants"), raising a variety of state and federal claims, including claims that each of the officers violated Lee's Fourteenth Amendment Due Process rights in that each was deliberately indifferent to a serious risk of physical harm to Lee.1 The district court denied summary judgment to the officers, summarily rejecting their assertions of qualified immunity. The officers appeal the denial of qualified immunity, and we reverse.
Viewed in the light most favorable to the plaintiff, Winfield v. Bass, 106 F.3d 525, 535 (4th Cir.1997) (en banc), the relevant facts are as follows. On the evening of May 22, 2001, Officer Paul Cleveland of the Fairfax County Police Department, one of the defendants below, responded to a reported larceny at a convenience store. After taking a description of the alleged perpetrators from the convenience store attendant, Cleveland searched the area nearby and discovered a man, later identified as Lee, in a wooded area adjacent to the store who matched one of the descriptions provided by the attendant. Lee was shirtless, appeared to be intoxicated, was drooling from his mouth, and had several cuts and abrasions across his body. Cleveland placed Lee under arrest on suspicion of being drunk in public, handcuffed him in accordance with standard practice, placed him in the back of his cruiser, and drove him to the Mount Vernon Satellite Intake Facility (the police station) for processing. Lee vomited several times along the way to the station. Upon his arrival at the police station, Cleveland was met in the sally port area by Officer Paul Thompson and Deputy Sheriffs Brian Wancik and Kevin Garlow, all of whom are co-defendants in this case. When Thompson arrived at the scene, Lee was lying prone in the back of the cruiser, with his feet in the floorboard area behind the driver's seat and his head on the back seat behind the passenger seat. On the floorboard behind the passenger seat and beneath Lee's head was a quantity of liquid that appeared to be a combination of vomit and mucous. Lee also had some of this substance on his shoulder. After some effort, Cleveland, Thompson, Wancik and Garlow were able to get Lee to sit upright in the back seat of the cruiser with his feet on the pavement outside the cruiser. At this point, the officers observed that Lee had a large quantity of fluid inside his mouth and asked him to spit it out. Lee refused to do so and rolled the contents around in his mouth. Second Lieutenant John L. Dooley, also a defendant in this case, overheard this exchange and recommended that one of the officers get a large garbage can for Lee to spit in. When Lee spat into the garbage can, Deputy Wancik noticed that the substance that Lee expectorated contained "red specks." (J.A. at 684-85.)
Although Lee had not attempted to spit at anyone, Lee was drooling heavily and was intoxicated. Given that intoxicated individuals tend to behave unpredictably and knowing that the officers would be handling Lee, Wancik decided that, based on the red specks he had seen, a "spit mask" should be used on Lee to prevent the spread of any bloodborne pathogens that Lee might be carrying. Wancik retrieved a "TranZport Hood"2 spit mask from a filing cabinet, removed it from its packaging, and returned to the sally port area where the other officers were attending to Lee.3 Wancik had no experience with the TranZport Hood specifically and never previously had used any type of spit mask on a detainee.
Upon returning to Cleveland's cruiser, Wancik asked the other officers if they thought that the spit mask should be used. Like Wancik, the other officers had neither any formal training on the use of the TranZport Hood or any other type of spit mask, nor any direct experience in the use of spit masks. Cleveland, Dooley, and Garlow nonetheless agreed with Wancik that the use of the mask was warranted under the circumstances. Wancik placed the mask over Lee's head while Lee was seated in the backseat of the cruiser, applying the spit mask so that Lee's nose was not covered by the filtering fabric.4 According to Wancik, the mask fit loosely around Lee's neck, so that if any liquid were to flow into the mask from Lee's mouth, it "easily" would flow out of the bottom. (J.A. at 439.) During the forty-five minutes to one hour from the time that Wancik placed the mask over Lee's head until the time Lee left in the police van, Lee was conscious and able to communicate. During this time period, Lee did not vomit or indicate that he needed to vomit,5 although he did spit into the mask several times. No one observed any fluid flow out of the bottom of the mask.
After Wancik placed the mask over Lee's head, Cleveland and Thompson escorted Lee into the station. Shortly thereafter, Thompson left the station and had no further contact with Lee. Inside the station, Cleveland conducted a records check on Lee (which revealed that Lee been arrested twenty-one times for being drunk in public between 1987 and 2001) and obtained an arrest warrant charging Lee with being drunk in public, while the other officers monitored Lee. During this time period, the officers noticed a small abrasion on Lee's forehead and decided to call the Fairfax County Fire and Rescue Department to assess this injury as well as Lee's level of intoxication. EMT Kathleen Earl and Firefighter Roosevelt Carson, both of whom were trained emergency medical technicians (EMTs), responded and examined Lee in the station. EMT Earl saw the abrasion through the net portion of the mask, and, given the officers' concern about the possibility that Lee might spit, EMT Earl decided to conduct the examination of Lee without removing the mask. The mask did not hinder EMT Earl's evaluation, and she concluded that Lee's head injury did not require treatment. EMT Earl was told that Lee was intoxicated, and she herself noticed that his demeanor was consistent with a person who was intoxicated — he appeared "sleepy," (J.A. at 1472), and had become "agitated" with a sheriff's deputy who was assisting Earl with the examination, (J.A. at 1470). At some point during her examination, EMT Earl asked the officers about the use of the mask and specifically inquired about what might happen should Lee vomit with the mask over his head. One of the officers (in all likelihood Wancik, although EMT Earl later could not recall which one)6 explained that the vomit would flow out the bottom of the mask. There is no evidence in...
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