Metropolitan News-Enterprise

Tuesday, April 4, 2006


Page 1


Ninth Circuit Rules:

Police Need Not Perform CPR on Stricken Man in Custody


By KENNETH OFGANG, Staff Writer/Appellate Courts


The obligation of police to protect individuals in their custody does not require that they perform CPR when an arrestee is stricken with a possible heart attack, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court affirmed a summary judgment in favor of San Francisco police, who were sued for violation of civil rights and on various tort claims in the 2001 death of  Glenn Fullard. Fullard died after police—who said they suspected him of being under the influence of a controlled substance after he persisted in kicking the door of the Tenderloin police station for no apparent reason after they told him to stop—subdued and handcuffed him.

The cause of death was cocaine toxicity, the coroner found.

Breathing Labored

Police testified that after Fullard was handcuffed, they noticed that his breathing was labored and called for an ambulance. The officers said they told the dispatcher to treat the call as a priority and stayed with Fullard until the ambulance arrived, monitoring his pulse and chest movements.

One of the paramedics, who arrived about 10 minutes after the call, pronounced Fullard dead at the scene.

Fullard’s mother, who filed the suit, alleged that the failure to apply CPR was the equivalent of using excessive force. But Judge Ronald Gould, writing for the Ninth Circuit, said the officers acted reasonably under the circumstances.

“Just as the Fourth Amendment does not require a police officer to use the least intrusive method of arrest....neither does it require an officer to provide what hindsight reveals to be the most effective medical care for an arrested suspect,” Gould wrote. The requirement, he explained, is that the police provide “objectively reasonable post-arrest care” by either summoning help or taking the arrestee to a hospital.

In this case, Gould wrote, the officers “promptly summoned the necessary medical care by requesting an ambulance for Fullard” and  continued to monitor him.

Fourth Amendment

Assuming that police “could have performed CPR on Fullard without risking further injury to him, the critical inquiry is not whether the officers did all that they could have done, but whether they did all that the Fourth Amendment requires,” the judge said. “Here, the officers promptly requested medical assistance, and the Constitution required them to do no more.”

The court also rejected the plaintiff’s claim that she had pled a cause of action for false arrest, based on Ninth Circuit case law holding that a warrantless arrest cannot be made solely for failing to identify oneself to police, even where such conduct violates state law.

In this case, Gould said, the police had an objectively reasonable basis for an arrest, since there was a “fair probability” that Fullard was acting under the influence of drugs, a crime in California, or was violating the laws against disturbing the peace, disorderly conduct, or vandalism.

Also unavailing, the appellate jurist wrote, was the claim that police used excessive force to subdue the suspect, distinguishing a case in which a handcuffed suspect was carried down the street and shackled to a mailbox.

“Here...the reason that [police officer] Smith used force against Fullard is

clear and not genuinely in dispute. Fullard was agitated, and Officer Smith applied the control hold to facilitate placing Fullard in handcuffs....Fullard...resisted Smith’s lawful use of force during the arrest itself, by trying to spin out of Smith’s grasp.”

The case is Tatum v. City and County of San Francisco, 04-15055.


Copyright 2006, Metropolitan News Company