Metropolitan News-Enterprise


Thursday, March 19, 2020


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Ninth Circuit:

Officers Have Duty to Get Treatment for Ill Arrestee

Majority Bases Decision on Its Perception of How California Supreme Court Would Apply State Law; Dissenter Lee Says Under the Facts, No Dereliction Occurred


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday reinstated, for the second time, an action against two Garden Grove police officers who arrested a woman on suspicion of drunk driving, unaware that the symptoms she displayed were the result of a stroke she had just suffered and that she needed hospitalization.

The majority—comprised of Circuit Judge Kim Wardlaw and District Court Judge Matthew F. Kennelly of the Northern District of Illinois, sitting by designation—predicted that the California Supreme Court, if squarely presented with the issue, would find “that a law enforcement officer owes a duty of reasonable care to an arrestee in his custody who needs immediate medical attention.”

Dissenting, Circuit Judge Kenneth Kiyul Lee said in a footnote that he assumes the California Supreme Court would take that stance. Lee, however, saw no triable issue as to whether a duty to the arrestee was breached, opining that under the circumstances, the officers acted reasonably.

Suing Officers Charles Starnes and Michael Elhami is Robin Winger, who was arrested by the defendants on Oct. 31, 2011. While driving her daughter to school, she suffered a stroke, lost coordination, and crashed into a parked vehicle.

Both officers and emergency medical technicians (“EMTs”) asked if she needed medical treatment, and she declined. Winger was taken into custody for driving under the influence.

On Feb. 14, 2013, she brought a civil rights action against the City of Garden Grove and individual employees of the city, including Starnes and Elhami. District Court Judge Andrew J. Guilford of the Central District of California granted summary judgment in favor of all defendants.

2017 Opinion

The Ninth Circuit on May 8, 2017, in an opinion by Circuit Judges Stephen Reinhart (since deceased) and Jacqueline H. Nguyen, joined by District Court Judge David A. Ezra of the District of Hawaii, sitting by designation, affirmed the judgment in favor of the officers and EMTs on Winger’s Fourteenth Amendment claim, explaining:

“Winger’s behavior was erratic but in a way that was consistent with intoxication. Officer Starnes appeared on the scene and conducted a series of sobriety tests, which she failed. He arrested Winger and booked her into jail. Upon arriving at jail, she received a medical screening, which also did not reveal any medical problem. When Winger was released, she was immediately taken to a hospital. The emergency room physician wrote in his notes, ‘doub[t] stroke...likely psychiatric or drug induced psychosis.’ Only later would a CT scan reveal that Winger had suffered a stroke.

“Under these circumstances, the officers and EMTs were not objectively unreasonable in not forcing Winger to go to the hospital against her will. They reasonably believed, as the doctor at the hospital later would, that she was competent to make her own health care decisions.”

The court also affirmed the judgment in favor of the city, saying that “Winger provided little evidence that the city’s training of police and fire personnel were inadequate.”

Negligence Claim Reinstated

However, the judgment in favor of the officers on Winger’s negligence claim was reversed. Guilford had granted them immunity under California’s Government Code §821.6 which, the panel noted, “applies only to malicious prosecution actions.”

On remand, Guilford opted to retain jurisdiction over the state claim, and again granted summary judgment to the officers, this time under California’s Government Code §845.6.

That was error, Wardlaw and Kennelly’s said in yesterday’s decision, because Winger was not a “prisoner” as defined by that section. Lee wrote that he would assume that to be so.

The majority said that “[t]he initial issue in this case is whether, under California law, a law enforcement officer owes a duty of reasonable care to an arrestee in his custody who needs immediate medical attention,” and answered the question in the affirmative. It noted that in the 2011 case of Giraldo v. Department of Corrections & Rehabilitation, the Court of Appeal found that a guard had such a duty to a prisoner, and that the California Supreme Court had cited that case with approval.

Wardlaw and Kennelly declared that there are triable issues of fact in connection with the issue of whether the Garden Grove officers breached that duty. Their opinion says:

“There is a genuine factual dispute regarding whether Elhami and Starnes should have recognized that Winger needed immediate medical care and thus whether they acted unreasonably by taking her to the police lockup instead of to a hospital. Winger was unable to spell her first name, recall her last name, or provide coherent answers to basic questions such as where she lived, what the tune was. and when she last ate. She repeatedly told Elhami that she did not feel well, and that she recently had spent time in the hospital, which Elhami conveyed to Starnes.”

The opinion continues:

“She placed her hand near her chest when Elhami first approached her, which, he testified, indicated to him that ‘there was something possibly internally wrong with her’: within one minute of encountering Winger, he reported to a police dispatcher than she complained of ‘pains to the chest.’ Both officers had completed training on how to recognize the symptoms of a stroke, and a doctor who treated Winger testified that her inability to state her last name was not a typical sign of intoxication but rather a stroke symptom that should have been recognizable to someone trained in stroke detection.”

The opinion adds that there is a factual dispute as to whether Winger exhibited “facial drooping” which would be indicative of a stroke.

Capacity to Decide

It points to an additional triable issue, setting forth:

“A reasonable jury also could find that Winger was not capable of refusing medical care, that Elhami and Starnes should have recognized her incapacity, and that as a result they were negligent in taking her to a lockup instead of to a hospital even though she refused medical care.”

At oral argument on Pasadena on Dec. 9, Lee expressed skepticism as to any claim that Winger lacked the capacity to refuse care.

“It seems she was pretty lucid,” he remarked. “They asked her, ‘Do you want medical treatment?’

“She said, ‘No.’ ”

Lee’s Dissent

In yesterday’s dissent, he wrote:

“There are no real winners in this case. Robin Winger suffered a stroke while driving her car, but she did not realize it and repeatedly refused medical care offered by first-responders. Garden Grove police officers Starnes and Elhami mistakenly—but reasonably under the circumstances—believed that she was under the influence of drugs or alcohol, and booked her in jail. As a result. Winger suffered unnecessarily. With the benefit of hindsight, the police officers should have perhaps compelled Winger to go to the hospital against her wishes. But I do not believe that the police officers acted unreasonably, given what they knew at the time.”

He said that because the officers “made difficult judgment calls and acted reasonably based on what they knew at the time, we should not second-guess their decisions.”

Lee noted that the initial impression of the emergency room doctor was that Winger had not suffered a stroke and the fact that she had was appreciated only after tests were conducted. He commented:

“We ask too much of first-responders if we expose them to potential liability for failing to recognize a stroke when an emergency doctor did not initially diagnose it, either.”

Majority’s Response

The majority opinion contains this rejoinder, in a footnote:

“Contrary to the dissent’s characterization of today’s decision, we do not find that Elhami and Starnes acted unreasonably and do not impose liability. Our opinion does nothing more than conclude that there is a genuine factual dispute regarding whether Elhami and Starnes breached then duty of reasonable care to Winger.”

The case is Winger v. City of Garden Grove, 18-56118.


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