Metropolitan News-Enterprise


Tuesday, November 16, 2021


Page 1


Ninth Circuit:

Officers Immune in Case of Not Summoning Medical Aid

Dissent Accuses Majority of Presenting ‘Highly Sanitized Account’ of Facts, Says Emergency Was Obvious


By a MetNews Staff Writer


Ninth U.S. Circuit Court of Appeals Judge Paul J. Watford, in a dissent filed yesterday, accused two colleagues of distorting the facts in affirming the dismissal of an action accusing two San Diego police officers of causing the death of a Black woman they had arrested by failing to summon medical assistance when she began screaming for help.

Authoring the majority opinion was Third Circuit Judge D. Michael Fisher, sitting by designation. Ninth Circuit Judge Patrick J. Bumatay joined in the decision.

Qualified immunity applied to Officers Lawrence Durbin and Jason Taub, the majority said, because the allegations of the complaint did not reflect either objective unreasonableness or objective deliberate indifference and the arrestee’s right to have medical aid summoned under the facts was not “clearly established.”

Traffic Stop

Durbin and Taub took Aleah Jenkins, 24, into custody at a traffic stop after ascertaining that she was the subject of an arrest warrant based on a methamphetamine offense. Inside the police car, she vomited; an officer summoned medical assistance; she said she was pregnant and the call for assistance was cancelled; on the trip to the police station, she screamed and groaned and begged that the car be stopped.

At one point, Durbin did stop the car. He patted her and said:

“I need you to stay awake.”

She insisted that she was sick, pleaded for help and screamed. Durbin told her, “Knock it off” and assured she officer was “fine.”

At the police station, she was fingerprinted, then placed back in the police car. A few minutes later, she was found unconscious; paramedics were summoned; she went into a coma and died nine days later.

Jenkins’s son, 6, brought suit through his guardian ad litem. The action was dismissed with prejudice by District Court Judge Cathy Ann Bencivengo of the Southern District of California.

Watford’s Dissent

Dissenting from the affirmance, Watford said:

“The majority opinion offers a truncated and highly sanitized account of the events giving rise to this lawsuit, at least as alleged by the plaintiff. Although at this stage of the case we are required to accept the plaintiffs factual allegations as true, the majority opinion ignores most of the facts alleged in the complaint. The complaint also expressly incorporates by reference the contents of a publicly available body camera video that captures many of the relevant events, yet the majority opinion turns a blind eye to most of what that video depicts as well.”

Watford continued:

“The plaintiffs complaint plausibly alleges that Aleah Jenkins, a young African-American woman, died in police custody because the officer responsible for transporting her to police headquarters took no action when she experienced an acute medical emergency.

“Over the course of an hour-long drive. Officer Lawrence Durbin disregarded obvious signs of Ms. Jenkins’s medical distress, evidently because he thought she was “faking” her symptoms as part of a ploy to avoid going to jail. As I will explain. J.K.J., the plaintiff in this case and Ms. Jenkins’s minor son, has plausibly alleged that no reasonable officer in Officer Durbin’s shoes could have viewed Ms. Jenkins’s rapidly deteriorating medical condition as some kind of ruse.”






Details Facts

The judge went through, in detail, what the bodycam video showed, including what happened after Durbin pulled to the parking structure at the police station:

“Officer Durbin arrives at police headquarters and drives into the parking garage. When he opens the rear door of his patrol car. Ms. Jenkins is lying face down on the back seat and appears to be unconscious….Officer Durbin taps Ms. Jenkins on the back repeatedly to rouse her, but she remains face down, breathing abnormally fast. Officer Durbin tells Ms. Jenkins, ‘Stop are doing that to yourself.’…As the complaint plausibly alleges and the video confirms, while Officer Durbin stands observing Ms. Jenkins, ‘her body [begins] twitching and shaking while lying face down in the back seat.’…

“Instead of summoning medical help. Officer Durbin proceeds with fingerprinting Ms. Jenkins. He asks her to get out of the car but receives no response. Officer Durbin then pulls Ms. Jenkins out of the car by her arms, instructing her to try to get her legs underneath her as her torso clears the car door’s threshold. Her body is limp, she appears unable to stand on her own. and her legs simply flop to the ground, rag doll-like….As Officer Durbin drags Ms. Jenkins out of the car in this manner, she screams in distress and is breathing abnormally fast.”

Abnormal Breathing

The account proceeds:

“Now lying on her side on the parking garage floor, Ms. Jenkins quietly mumbles, ‘Help me,’ but Officer Durbin ignores her and tells an approaching officer. ‘She doesn’t want to go to jail.’…As Officer Durbin speaks with the other officer about the mechanics of fingerprinting, Ms. Jenkins remains on the ground, twitching, mumbling incoherently, and breathing abnormally fast….Officer Durbin asks Ms. Jenkins if she wants water, but she lies listless on the ground and does not respond.

“Officer Durbin and the other officer take hold of Ms. Jenkins’s arms, which are still handcuffed behind her back, and press each of her index fingers onto a mobile fingerprinting unit while she lies on the parking garage pavement. Despite being able to walk on her own less than 90 minutes earlier. Ms. Jenkins does not appear capable of even sitting up under her own power….She appears to be going in and out of consciousness, and her body twitches and shakes.”

Durbin then put Jenkins back in the car and admonished her that her lack of cooperation would lead to an additional charge.

“Ms. Jenkins is now locked in the back seat of the patrol car, lying face down, handcuffed, and in obvious medical distress” Watford recited.

He noted that when the officer returned 11 minutes later he was uncertain whether she was breathing. It was at that point that paramedics were summoned.

She never regained consciousness.

Fisher’s Opinion

“We do not believe these facts plausibly allege objective unreasonableness or objective deliberate indifference akin to reckless disregard,” Fisher wrote. “To be sure, we know with the benefit of hindsight that Jenkins had a serious medical need.”

But that need, he said, did not become obvious until Durbin returned to the car and found Jenkins unconscious, at which point he did radio for medical assistance.

“While it is now evident that Jenkins ingested some drug, we are not permitted to project that knowledge backwards in time based on how this story ended,” the visiting jurist declared. “Because we cannot say that Durbin behaved objectively unreasonably or with objective deliberate indifference in failing to recognize, sooner than he did, that Jenkins had a serious medical need, we conclude that J.K.J, has not plausibly alleged a violation of Jenkins’ constitutional rights.”

In determining that the officers did not violate a “clearly established” constitutional right, so as to preclude application of qualified immunity, Fisher said: “Here, the alleged violative nature of the officers’ conduct, in failing to recognize and respond to Jenkins’ serious medical need, was not clearly established in the specific context of this case. The dissent suggests this is yet another case about an official ignoring a detainee’s obvious medical need. But calling Jenkins’s medical need ‘obvious’ misses the forest for the trees. This case involves a detainee who exhibited signs of medical distress but also obscured the seriousness of those signs with statements about being pregnant, not ingesting drugs, and wanting to avoid jail. None of the precedents cited by J.K.J, comes close to showing that “every reasonable official” would have understood that acting as Taub and Durbin did. given the contradictory facts they had to grapple with at the time, violated the Constitution.”

Watford’s View

Disagreeing, Watford wrote:

“I agree with my colleagues that it was not objectively unreasonable for Officer Durbin to cancel the call to the paramedics while he and Ms. Jenkins were still at the scene of the traffic stop….But the majority opinion veers badly off track when addressing the events that transpired from that point forward….

“The complaint’s allegations, augmented by the video, plausibly suggest that during the drive to police headquarters (and certainly upon arrival there). Officer Durbin’s conduct became objectively unreasonable. The signs of medical distress that Ms. Jenkins exhibited—her vomiting, moaning, screaming, irregular breathing, repeated cries for help, inability to sit or stand on her own. and loss of control of her limbs—are far outside the range of behavior that any healthy individual would exhibit. Any reasonable officer observing those signs would have recognized that Ms. Jenkins needed immediate medical attention. The majority opinion is simply wrong in concluding that the first point at which a reasonable officer would have realized that Ms. Jenkins faced a serious medical need is when Officer Durbin returned to the car after a more-than-11-minute absence and found that she had stopped breathing.”

He said it was so obvious that Jenkins was in distress that objective unreasonableness can easily be found. He argued: “Ms. Jenkins exhibited obvious signs that she was experiencing a serious medical emergency, and the legal constraints governing an officer’s conduct in those circumstances were clearly established. Any reasonable officer would nave known that failing to summon immediate medical care for an arrestee experiencing a medical emergency is unlawful.”

The case is J.K.J. v. City of San Diego, 20-55622.

On March 15, 2019, the San Diego District Attorney’s Office announced that criminal charges would not be brought against the three officers involved, Durbin, Taub, and Nicholas Casciola. The office noted that Jenkins had “as much as 17 times a lethal dose” of methamphetamine in her blood.


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