Brittany J. Buckley v. Hennepin County ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-3243
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Brittany J. Buckley
lllllllllllllllllllllPlaintiff - Appellant
v.
Hennepin County, et al.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 22, 2020
Filed: August 16, 2021
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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
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LOKEN, Circuit Judge.
In December 2017, depressed about her father’s death, Brittany Buckley had
been drinking for two days and threatened self-harm. A friend called 911 to request
a welfare check and let police officers into Buckley’s apartment when they arrived.
The officers spoke with Buckley and called an ambulance. Paramedics Anthony
D’Agostino, Katherine Kaufmann, and Johnathan Thomalia arrived, conversed briefly
with Buckley, and determined she needed to go to the hospital. Buckley objected; the
paramedics advised she was on a medical transportation hold. When Buckley
continued objecting, the officers and paramedics handcuffed her and carried her to
the ambulance, where she was placed on a gurney and secured by cuffing each arm
to a rail, with a shoulder harness, and hip, thigh, and ankle straps. The paramedics
decided to inject her with a sedative. Buckley objected to being injected with an
unknown medication, to no avail. The commonly used sedative was ketamine.
Buckley immediately developed serious respiratory distress. The paramedics
manually ventilated her, administered atropine, and used suction to remove excess
saliva. At the Hennepin County Medical Center, Buckley was diagnosed with acute
hypoxia (low oxygen) respiratory failure, a known complication of ketamine, and was
promptly intubated into the following day. This lawsuit followed.
A major focus of Buckley’s Complaint and her briefs on appeal is Hennepin
County’s so-called “ketamine trials,” two studies the County conducted on the use of
ketamine as a pre-hospital sedative for agitated patients. Buckley asserts 42 U.S.C.
§ 1983 compensatory and punitive damage claims against paramedics D’Agostino,
Kaufmann, and Thomalia for injecting her with ketamine without her consent, and
against physicians who allegedly implemented ambulance protocols while conducting
the second study, both in their individual and official capacities. She also asserts
claims of Monell liability1 against Hennepin County, several of its health care
facilities, and the individual defendants for developing and implementing a county-
wide ketamine protocol. Buckley’s Complaint alleged that defendants used excessive
force, violated her right to bodily integrity, and acted with deliberate indifference in
violation of the Fourth Amendment and her right to substantive due process under the
Fourteenth Amendment.
1
Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978).
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The district court2 granted defendants’ motion for judgment on the pleadings,
see Fed. R. Civ. P. 12(c), dismissing Buckley’s federal § 1983 claims with prejudice
and declining to exercise supplemental jurisdiction over her pendent state law claims.
The court concluded: (i) “the paramedics’ decision to inject Buckley with ketamine
while responding to a medical emergency did not violate Buckley’s right to be free
from excessive force under the Fourth Amendment,” (ii) “Buckley fails to allege a
violation of her substantive due process right to bodily integrity,” (iii) “Buckley also
fails to allege a violation of her substantive due process rights premised on
Defendants’ [medical] deliberate indifference,” (iv) alternatively, the paramedics are
entitled to qualified immunity, (v) the physician defendants are entitled to qualified
immunity “because the Court has seen no evidence that designing, implementing, and
overseeing the ketamine studies violated a clearly established right,” and (vi) the
claims of Monell liability fail because “the complaint and documents embraced by the
complaint do not plausibly allege that the individual Defendants violated Buckley’s
constitutionally protected rights.” Buckley v. Hennepin Cnty. et al., No. 18-cv-3124,
Memorandum (D. Mn. Sep. 11, 2019).
Buckley appeals the dismissal of her federal claims. Our standard reviewing
a Rule 12(c) judgment on the pleadings is the same as a Rule 12(b)(6) dismissal.
Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). We review whether
the complaint states a cause of action de novo. Id. We construe the Complaint in
favor of Buckley, the non-moving party, assuming well-pleaded facts are true, but we
do not accept legal conclusions phrased as fact allegations. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim must be plausible on its face to survive dismissal. Id.We may rely on materials “necessarily embraced by the pleadings,” including exhibits
attached to the complaint and matters of public record. Greenman v. Jessen, 787 F.3d
882, 887 (8th Cir. 2015). Neither party challenges on appeal the district court’s
2
The Honorable Joan Ericksen, United States District Judge for the District of
Minnesota.
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consideration of numerous materials as embraced by the pleadings. Reviewing
dismissal of the federal claims under these standards, we affirm.
I. Claims Against the Paramedics.
A. Excessive Force Claims. On appeal, Buckley first argues her Complaint
sufficiently states a “Fourteenth Amendment excessive force claim” against the
paramedics. In the district court, she argued the paramedics used excessive force
violating the Fourth and the Fourteenth Amendment. The district court agreed with
defendants that the Fourth Amendment “objective reasonableness” standard should
apply. See Graham v. Connor, 490 U.S. 386, 394-399 (1989). Buckley concedes she
was properly placed on a medical transport hold and secured on the ambulance
gurney, actions that effectuated a Fourth Amendment seizure. See Green v. City of
New York, 465 F.3d 65, 83 (2d Cir. 2006). The paramedics then allegedly used
excessive force when they sedated her with ketamine without her consent while she
was fully restrained.
The paramedics were acting as medical responders, not as law enforcement
officers, when they sedated Buckley after she had been seized and was being
transported to a hospital. State law authorized the paramedics to “take a person into
custody and transport the person to a licenced physician or treatment facility if the
officer has reason to believe . . . that the person is mentally ill . . . and in danger of
injuring self or others if not immediately detained.” Minn. Stat. § 253B.05, subd. 2(a)
(2019).3 Buckley does not dispute the legitimacy of the medical hold. Hennepin
County’s Emergency Medical Services Advanced Life Support protocols provided
that “[a]ll patients transported on a Transport Hold should be restrained during
transport” and a patient who is severely or profoundly agitated should be sedated.
3
Minnesota amended this statute effective July 2020. See Minn. Stat. §
253B.051, subd. 1 (2020).
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In two quite similar cases where paramedics administered emergency medical
treatment either after seizure or to a person who did not object to seizure, our sister
circuits reversed the denial of qualified immunity and dismissed Fourth Amendment
excessive force claims. In Peete v. Nashville and Davidson County, paramedics
physically restrained an unconscious boy who had experienced an epileptic seizure
without ensuring he could breathe, resulting in his death. 486 F.3d 217, 220 (6th Cir.
2007), cert. denied, 553 U.S. 1032 (2008). The Sixth Circuit concluded the
paramedics
were not acting to enforce the law, deter, or incarcerate. . . . They were
attempting to help him, although they badly botched the job according
to the complaint. . . . The plaintiff’s excessive force claim thus looks
like a medical malpractice claim rather than a Fourth Amendment or
Due Process violation.
Id. at 222. In Thompson v. Cope, 900 F.3d 414 (7th Cir. 2018), the Seventh Circuit
reversed the denial of qualified immunity and dismissed Fourth Amendment claims
against paramedics who administered a sedative to a mentally disturbed person whom
police had restrained and arrested. The court observed that “Fourth Amendment
restrictions are almost wholly alien to [a] situation, where paramedics are subject to
a distinct set of professional standards and goals aimed at responding to medical
emergencies.” Id. at 423. “[S]edating the arrestee -- who appear[ed] to the paramedic
to be suffering from a medical emergency -- before taking the arrestee by ambulance
to the hospital” did not violate the arrestee’s clearly established Fourth Amendment
rights. Id. at 422. Otherwise, the court observed, paramedics would face a “kind of
Catch-22 . . . treat the arrestee or don’t treat him, but face a lawsuit either way.” Id.
at 423. We agree with these decisions.
The courts in these cases considered excessive force claims pleaded under the
Fourth Amendment and applied its well-established objective reasonableness
standard, as the district court did in this case. On appeal, Buckley argues her status
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was akin to that of the involuntarily committed patient in Andrews v. Neer, 253 F.3d
1052 (8th Cir. 2001), and therefore her excessive force claim “should be analyzed
under the Fourteenth Amendment pretrial-detainee objective reasonableness
standard.” We see this as a distinction without a difference. Under either standard,
“liability for negligently inflicted harms is categorically beneath the threshold of
constitutional due process.” Kingsley v. Hendrickson, 576 U.S. 389, 396 (2015)
(quotation omitted; emphasis in original).
Buckley concedes that her suicidal and intoxicated state made it necessary for
paramedics to place her on a medical hold and transport her to the hospital because
she was a danger to herself. But she contends that she was not combative when
restrained on the gurney and sedation was therefore medically unnecessary. The
contemporaneous ambulance run report states that Buckley “attempted kicking, biting
and head butting [the paramedics] while she was being removed from her house and
taken to the ambulance,” and they sedated her “fearing the patient would injure
herself fighting the restraints or get out of lower seat belts and kick responders.”
Buckley asserts the report is false and that the paramedics’ sole motivation for
sedating her was to enroll her in the ketamine trials and sedate her with ketamine
instead of a safer alternative sedative. These are not material fact disputes.
It was not objectively unreasonable for paramedics to administer medical aid
to an intoxicated, suicidal, semi-conscious woman who needed medical intervention.
The “reasonableness inquiry in an excessive force case is an objective one” and looks
only to whether the official’s actions were “objectively reasonable in light of the facts
and circumstances confronting them, without regard to their underlying intent or
motivation.” Graham, 490 U.S. at 397 (quotation omitted) (emphasis added). There
is no constitutional right to be sedated with a particular medication. Whether Buckley
needed to be sedated, and if so with what sedative, are questions of appropriate
medical care that must be resolved in a medical malpractice action under state law.
The district court properly dismissed her excessive force claims.
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B. Substantive Due Process Claims. Buckley alleges that the paramedics in
sedating her with ketamine over her objection violated her Fourteenth Amendment
substantive due process right to bodily integrity and were deliberately indifferent to
the substantial risk of serious medical injury posed by ketamine sedation.
1. Bodily Integrity Claims. In Cruzan v. Director, Mo. Dept. of Health, a case
involving the controversial issue of a patient’s right to die, the Supreme Court
observed that “[t]he principle that a competent person has a constitutionally protected
liberty interest in refusing unwanted medical treatment may be inferred from our prior
decisions.” 497 U.S. 261, 278 (1990). That same year, the Court held that “forcible
injection of medication into a nonconsenting person’s body represents a substantial
interference with that person’s liberty.” Washington v. Harper, 494 U.S. 210, 229
(1990). A divided panel of this court then stated in Rogers v. City of Little Rock that
“[t]he Supreme Court has recognized a substantive due process right to bodily
integrity” that “protect[s] against nonconsensual intrusion into one’s body and has
been seen to permit the right of a competent person to refuse unwanted medical
treatment.” 152 F.3d 790, 795 (8th Cir. 1998), citing Cruzan and Rochin v.
California, 342 U.S. 165 (1952). Buckley alleges the paramedics violated her right
to bodily integrity by giving her unwanted medical treatment.
In a § 1983 substantiative due process lawsuit, the threshold question is
whether the behavior of the governmental officer is so egregious, so outrageous, that
it may fairly be said to shock the contemporary conscience. See, e.g., Folkerts v. City
of Waverly, 707 F.3d 975, 980 (8th Cir. 2013). This constitutional concept “points
clearly away from liability, or clearly toward it, only at the ends of the tort law’s
spectrum of liability.” County of Sacramento v. Lewis, 523 U.S. 833, 848 (1998).
“[C]onduct intended to injure in some way unjustifiable by any government interest
is the sort of official action most likely to rise to the conscience-shocking level.” Id.
at 849.
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Here, Buckley alleges that paramedics sedated her with an unknown
medication against her wishes, resulting in serious adverse medical complications
from the ketamine injection. She relies on Harper, where the Court held that inmates
have a liberty interest in avoiding forced anti-psychotic medication. 494 U.S. at 221-
222. But the Harper Court did not recognize an unfettered right to refuse medication.
It held that due process was satisfied because the prison policy was based on the
inmate’s interest being outweighed by the State’s legitimate interest in prison safety
and security. Id. at 222-223. Similarly, in Riggins v. Nevada, 504 U.S. 127, 138-139
(1992), and in Sell v. United States, 539 U.S. 166, 185-186 (2003), the Court
balanced the governmental interest in medicating a defendant against his wishes prior
to trial against whether the medication interfered with his right to a fair trial.
The facts in this case are unlike any of the forced medication cases on which
Buckley relies. Here, the paramedics were facing a medical emergency in which it
was necessary to restrain the self-destructive Buckley and transport her to a hospital.
Perceiving her as dangerously agitated, they sedated her with a commonly used
sedative that was known to be faster acting than alternative medications, but which
created a greater risk of adverse complications the paramedics were prepared to treat
if it incurred, and in fact treated when it did occur. Even if the semi-conscious
Buckley was competent to refuse this treatment, the paramedics did not engage in
conscience shocking conduct in electing to sedate a suicidal, intoxicated woman to
protect both the patient and themselves. Buckley’s Complaint did not allege, and her
briefs on appeal did not address, the conscience shocking element of this substantive
due process claim. The district court did not err in granting the paramedics’ Rule
12(c) motion to dismiss.
2. Deliberate Indifference. Buckley alleges the paramedics were deliberately
indifferent to the substantial risk of serious medical complications they knew
ketamine sedation posed when they injected her with that sedative. Though Buckley
was not imprisoned at the time, and therefore the Fourteenth Amendment rather than
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the Eighth Amendment governs her claim, we agree with the parties that the Eighth
Amendment deliberate indifference standard applies. “[W]hen the State by the
affirmative exercise of its power so restrains an individual’s liberty that it renders
[her] unable to care for [herself], and at the same time fails to provide for [her] basic
human needs [such as medical care,] it transgresses the substantive limits on state
action set by the Eighth Amendment and the Due Process Clause.” DeShaney v.
Winnebago Cnty. Dept. of Social Servs., 489 U.S. 189, 200 (1989). To state a claim,
Buckley must plausibly allege that the paramedics’ conduct, viewed objectively,
deprived her of a “minimal civilized measure of life’s necessities” when they injected
her with the ketamine sedative knowing of but disregarding an excessive risk to her
health or safety. Revels v. Vincent, 382 F.3d 870, 875 (8th Cir. 2004).
Placing a person in need of emergency medical care on a medical transportation
hold and transporting her to a hospital “demonstrates a deliberate concern for [her]
well-being, and not an indifference.” Haslar v. Megerman, 104 F.3d 178, 180 (8th
Cir. 1997). Likewise, sedating an agitated patient during the trip to the hospital to
protect the patient and her emergency medical providers is not deliberate indifference.
Quite the contrary. Buckley’s Complaint alleged simply that the paramedics knew,
“when they administered the ketamine, that there was a substantial risk that [she]
would develop respiratory difficulties and require intubation.” There were no
allegations of what the paramedics subjectively knew about the County’s “ketamine
trials,” or why administering a commonly used sedative evidenced deliberate
indifference. The district court properly dismissed these implausible substantive due
process claims.
II. Claims Against the Physicians.
Buckley alleged the defendant doctors are directly liable for excessive force
and substantive due process violations because they oversaw the County’s ketamine
studies and were personally involved in designing, implementing, and overseeing the
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ketamine research. As the district court recognized, supervising physicians can be
held personally liable under § 1983 only “when the supervisor is personally involved
in the violation or when the supervisor’s corrective inaction constitutes deliberate
indifference towards the violation.” Boyd v. Knox, 47 F.3d 966, 968 (8th Cir. 1995).
Buckley alleged, with supporting documentary evidence, that she was
“enrolled” in the second study, entitled “Ketamine versus Midazolam for Prehospital
Agitation,” when she was sedated with ketamine in the ambulance. Results from the
prior study, “Ketamine versus Haloperidol for Severe Prehospital Agitation,” reported
that 49% of patients receiving ketamine suffered complications but only 5% of those
who received haloperidol; 39% of those receiving ketamine required intubation
compared with 4% of those receiving haloperidol. Buckley alleged that the defendant
doctors knew about the substantial risks of ketamine sedation from the results of the
first study and thus were deliberately indifferent to the substantial risk of serious
medical injury to patients in authorizing and supervising the second study.
Buckley did not allege that the defendant physicians had any knowledge of or
played any role in responding to the call for a welfare check on Buckley, placing her
on a medical transportation hold and forcibly securing her in the ambulance, and
sedating her for the trip to the hospital. They are only accused of running the study
which caused ketamine to be the sedative used. Buckley cites to district court
decisions holding government agents potentially liable under § 1983 for subjecting
persons to dangerous medical experiments without consent or proper disclosure. In
Heinrich ex rel. Heinrich v. Sweet, 62 F. Supp. 2d 282, 314 (D. Mass. 1999), for
example, the court stated the elements of this constitutional violation as being that a
government actor “(2) without obtaining informed consent and utilizing false
pretenses to obtain participation, (3) conduct[ed] medical experiments known to have
no therapeutic value and indeed known to be possibly harmful to the subjects.”
Without addressing whether we agree these elements would establish a constitutional
violation, it is obvious the facts alleged by Buckley bear no resemblance to this
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hypothetical claim. The paramedics were not performing a medical experiment on
the semi-conscious Buckley, they were attempting to save her life; no false pretenses
were used to obtain her involuntary participation; and the sedative administered was
known to have therapeutic value though in some cases with adverse complications.
Buckley’s Complaint alleged no personal involvement by the physician
defendants in her emergency medical treatment and no subjective recklessness by
these supervisory officials. See Moore ex rel. Moore v. Briggs, 381 F.3d 771, 775
(8th Cir. 2004). We fail to see how allegations that the County was conducting ill-
advised studies concerning the use of three different sedatives in various medical
emergencies is relevant to Buckley’s specific claims. Accordingly, we agree with the
district court that, at a minimum, these defendants are entitled to qualified immunity.
See Greenman, 787 F.3d at 887.
III. Monell Claims,
“A municipality may be liable under § 1983 where action pursuant to official
municipal policy of some nature caused a constitutional tort.” Hollingsworth v. City
of St. Ann, 800 F.3d 985, 991-992 (8th Cir. 2015), quoting Monell, 436 U.S. at 691.
Qualified immunity does not extend to municipal defendants in a § 1983 suit, and
municipalities cannot rely on the good faith of their officers or agents as a defense.
Owen v. City of Independence, 445 U.S. 622, 638 (1980). Buckley alleges a Monell
claim against Hennepin County, its hospitals, and all individual defendants. She
argues these claims were improperly dismissed because she plausibly alleged that the
paramedics violated her constitutional rights by sedating her with ketamine, and those
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violations resulted from Hennepin County’s ketamine policy. We agree with the
district court that these claims must be dismissed because Buckley failed to establish
that the paramedics violated her Fourth Amendment or substantive due process rights.
IV. Conclusion.
For the foregoing reasons, we affirm the judgment of the district court.
GRUENDER, Circuit Judge, concurring in part and concurring in the judgment.
I join the court’s opinion except Section I.A., where I concur in the judgment.
Buckley’s complaint alleges the following. On December 16, 2017, Buckley’s
friend called 911 seeking a welfare check for Buckley. Responding officers then
called an ambulance. Three paramedics responded. After a brief conversation with
Buckley, the paramedics decided to place Buckley on a “medical transportation hold”
and insisted that Buckley accompany them to the hospital. Over Buckley’s continued
objections, the paramedics (and the officers) “stood on her feet, handcuffed her
behind her back, and carried her out of the building and into the ambulance.” In the
ambulance, Buckley was “cuffed to the gurney and strapped down by shoulder
harness, and hip, thigh, and ankle straps.” At no point did Buckley show any signs
of physical resistance or aggression.4
As the paramedics began drawing up ketamine (a powerful sedative) into a
syringe, Buckley specifically objected to being injected. Immediately before injecting
4
Although the ambulance report says otherwise, the complaint controls. See
West-Anderson v. Mo. Gaming Co., 557 F. App’x 620, 622 (8th Cir. 2014) (per
curiam); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 167-68 (4th Cir. 2016).
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Buckley, the paramedics noted that her Altered Mental State Scale score was a -2.
This meant that Buckley would respond only if her name was called loudly, had
slurred or slowed speech, a glazed-look in her eyes, and markedly drooping eyelids.
Nonetheless, the paramedics injected her with ketamine. Buckley “immediately
developed complications including altered mental status,” “abnormally slow
breathing,” “respiratory distress,” and “abnormally rapid heart rate.” Her Altered
Mental State score dropped. She went into respiratory distress requiring the
paramedics to ventilate her manually. And she experienced hypersalivation requiring
suction and atropine. The paramedics took Buckley to the hospital where she was
diagnosed with “acute hypoxic (low oxygen) respiratory failure due to ketamine
injection.” She required intubation until the next day.
The question is whether the paramedics are entitled to qualified immunity on
the claim that their conduct—including their decision to sedate an already-restrained
and semi-conscious Buckley—amounted to excessive force in violation of the Fourth
Amendment.
“Qualified immunity shields government officials from liability in a § 1983
action unless the official’s conduct violates a clearly established constitutional or
statutory right of which a reasonable person would have known.” Masters v. City of
Independence, 998 F.3d 827, 835 (8th Cir. 2021). In determining whether the
immunity applies, we consider whether (i) the defendant violated the plaintiff’s
constitutional or statutory right and (ii) that right was clearly established at the time
of the defendant’s misconduct. Id.“The Fourth Amendment protects . . . against unreasonable searches and
seizures.” Torres v. Madrid, 592 U.S. ---, 141 S. Ct. 989, 995 (2021). The
“application of physical force to the body of a person with intent to restrain is a
seizure.” Id. at 1003. “The right to be free from excessive force is included under the
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Fourth Amendment’s prohibition against unreasonable seizures of the person.”
Andrews v. Fuoss, 417 F.3d 813, 818 (8th Cir. 2005). Whether the force used was
excessive and thus unreasonable is an objective inquiry. See Scott v. Harris, 550 U.S.
372, 381 (2007); Andrews v. Neer, 253 F.3d 1052, 1060-61 (8th Cir. 2001) (applying
the objectively-reasonable standard to an excessive-force claim brought by a patient
involuntarily committed at a state mental hospital).
It was objectively unreasonable to sedate Buckley with ketamine. She was
about as restrained as a person can be, strapped down on a gurney. She was not and
had not been resisting. She was not suspected of a crime. And, by the paramedics’
own observations, she was already almost unconscious. Cf. Brown v. City of Golden
Valley, 574 F.3d 491, 499 (8th Cir. 2009) (“[F]orce is least justified against
nonviolent misdemeanants who do not flee or actively resist arrest and pose little or
no threat to the security of the officers or the public.”). In these circumstances, the
decision to sedate her with a potent and dangerous drug was “gratuitous and
completely unnecessary” and thus objectively unreasonable. Cf. Blazek v. City of
Iowa City, 761 F.3d 920, 925 (8th Cir. 2014) (denying qualified immunity to officers
who jerked an arrestee from the floor to his bed when he “was not resisting,” “posed
no threat,” and “was not suspected of any serious offense”). As Buckley put it, it was
objectively unreasonable to “inject a powerful sedative into a . . . semiconscious
woman who was fully restrained on an ambulance gurney and exhibiting no physical
aggression, violence, or resistance.”
In concluding to the contrary, the court relies on the fact that the seizure
involved paramedics (not police) who were there to provide aid.5 See ante, at 4-6.
But the Fourth Amendment is not limited to police. E.g., Ferguson v. City of
Charleston, 532 U.S. 67, 76 (2001); New Jersey v. T.L.O., 469 U.S. 325, 335 (1985).
Nor is it limited to law-enforcement purposes. See Caniglia v. Strom, 593 U.S. ---,
5
Of course, this ignores the fact that this “aid” was both unwanted and harmful.
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141 S. Ct. 1596 (2021) (applying the Fourth Amendment to a wellness check);
Michigan v. Tyler, 436 U.S. 499, 504-06 (1978) (applying the Fourth Amendment to
firefighters who entered a home to find the cause of a fire). Indeed, we very recently
applied the Fourth Amendment to a mental-health seizure. Graham v. Barnette, No.
19-2512, 2021 WL 3012338, at *5-6 (8th Cir. July 16, 2021). Neither the
paramedics’ status nor their purpose immunizes them from constitutional scrutiny.
See Green v. City of New York, 465 F.3d 65 (2d Cir. 2006) (denying qualified
immunity to fire-department lieutenant on excessive-force claim).
And this makes sense. The Fourth Amendment’s text is facially agnostic as to
the who or the why of a government intrusion. U.S. Const. amend. IV. And “the
basic purpose of [the] Amendment is to safeguard the privacy and security of
individuals against arbitrary invasions by governmental officials.” Tyler, 436 U.S.
at 504 (internal quotation marks and ellipsis omitted). Whether the government sent
someone in an ambulance or a squad car to seize Buckley is irrelevant. See id. at 506
(“[T]here is no diminution in . . . the protection of the Fourth Amendment simply
because the official conducting the search wears the uniform of a firefighter rather
than a policeman . . . .”).
Relatedly, the court says that Buckley’s claim involves “questions of
appropriate medical care that must be resolved in a medical malpractice action under
state law.” Ante, at 6. Not so. Her claim is not that she received inadequate medical
care; her claim is that a government official used a tranquilizer to seize her. See, Ellis
v. City of San Diego, 176 F.3d 1183, 1190 (9th Cir. 1999) (rejecting a similar attempt
to characterize a Fourth Amendment claim as medical malpractice because “the
gravamen of [the] complaint [was] not malpractice but the violation of [the plaintiff’s]
constitutional rights”).
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Finally, the court says that “[t]here is no constitutional right to be sedated with
a particular medication.” Maybe not.6 But Buckley did not bring a § 1983 suit
because she favors a different brand of sedative. Rather, she claims that, under the
circumstances here, she had the right to not be forcibly sedated at all.
I nevertheless concur in the judgment regarding Buckley’s excessive-force
claim because she has not demonstrated that this right was clearly established at the
time of the violation. To be clearly established, the contours of a right must be
“sufficiently clear that every reasonable official” would have understood that his
conduct “violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Because
“excessive force is an area of the law in which the result depends very much on the
facts of each case,” “existing precedent [must] squarely govern[] the specific facts at
issue.” Kisela v. Hughes, 584 U.S. ---, 138 S. Ct. 1148, 1153 (2018) (per curiam).
Here, Buckley has not pointed to any decision that resembles this one. Accordingly,
I concur in the court’s judgment granting the paramedics qualified immunity
concerning Buckley’s excessive-force claim.
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6
But see, Baze v. Rees, 553 U.S. 35, 52 (2008) (holding in the Eighth
Amendment context that the government’s choice of drug can violate the
Constitution); but cf. Luckert v. Dodge Cnty., 684 F.3d 808, 817 (8th Cir. 2012)
(holding that a pretrial detainee has at least as much protection as a prisoner).
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