Qualified Immunity for the Fire Service

John K. Murphy

There has been quite a lot of media attention and discussion about Qualified Immunity for firefighters and police officers, mostly police officers at this time. Needless to say, accompanying that discussion is some impactful litigation compelling those discussions and where your protections lie when responding to emergencies, treating patients, assisting your local police, and other on-duty interactions with your community.

Qualified immunity protects state and local officials, firefighters, teachers, school administrations, and anyone in public service from civil liability for following the rules and regulations set forth by the laws they are sworn to uphold.

Firefighters and law enforcement officers who objectively were acting in good faith under the color of law are protected by qualified immunity.

Despite statements to the contrary, qualified immunity is not granted to every public service responder, including law enforcement and firefighters in every case. Qualified immunity also does not protect public servants from criminal charges, internal investigations, discipline, and termination.

As we have seen recently, the lower courts and the U.S. Supreme Court continues to uphold qualified immunity, and the doctrine in its entirety has held firm and withstood recent political and legal debates and challenges. [i]

The Creation of Qualified Immunity

In the Civil Rights Act of 1871 (also known as the Ku Klux Klan Act), Congress gave Americans the right to sue public officials who violate their legal rights. In §1983 of the U.S. Code (the modern analog of the 1871 Civil Rights Act), Congress said that if a public official violates your rights—whether via police brutality, an illegal search, or an unlawful arrest—you can file a lawsuit to hold that public official is financially accountable for his conduct. The language Congress used was unequivocal: “Every” state official who causes a “deprivation of any rights” guaranteed by the Constitution and laws “shall be liable to the party injured.”[ii]

Fifteen years later, the Supreme Court of the United States (SCOTUS) held, in Harlow v. Fitzgerald,(457 U.S. 800 (1982) that federal government officials are entitled to Qualified Immunity. The Immunity this doctrine provides is “immunity from suit rather than a mere defense to liability.” Essentially, government officials became incapable of being sued instead of merely having an additional defense theory to raise in civil actions pursued against them. See also Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Qualified Immunity is commonly and successfully used as a significant defense to §1983 (civil rights) actions brought against law enforcement officers regularly. [iii]

Qualified immunity is not a law.

It is a judicial doctrine set by the Supreme Court that other courts must follow. That’s why Congress can consider ending it or changing it qs a legal shield that allows an officer to not be civilly (financially) liable if they violate someone’s civil rights. It also applies to other public officials during the employee’s on-duty work for the government, as long as their alleged misdeeds aren’t contrary to “clearly established law.”[iv]

In cases applied to Fire Department-related treatment and patient care issues, the California Supreme Court upheld qualified immunity as it applies to paramedics citing the existing law and provided qualified immunity in a police/fire department response to an injured patient with a paramedic patient care support. (See Zepeda v. City of Los Angeles (1990) 223 Cal.App.3d 232). The case unequivocally is related to paramedic liability and qualified immunity also mentioned in an unpublished opinion in a similar case entitled Eastburn v. Regional Fire Protection Authority where the higher circuit courts decide whether public entities employing emergency dispatchers are subject to direct or vicarious tort liability for injury attributable in part to a dispatcher’s failure or delay in responding to a 911 call for an electrocution of a child. (See Ct. App. 4/2 E029463 San Bernardino County Super. Ct. No. BCV05011)

In another case relating to firefighters treating and restraining a combative patient, the US Eighth Circuit Court of Appeals has joined a growing number of circuit courts holding that fire and EMS personnel who restrain a combative patient should not be evaluated under the Fourth Amendment excessive-force analysis that applies to police officers. Rather, fire and EMS personnel are “acting as medical responders, not as law enforcement officers,” and as such may be acting in an objectively reasonable manner when administering a sedative to a patient for purposes of qualified immunity.

That ruling was handed down in a lawsuit brought by Brittany Buckley over a 2017 incident where paramedics from Hennepin County EMS administered ketamine to sedate her for transport to a hospital. Buckley contended that the use of the sedative was unnecessary, and as such constituted the use of excessive force. She also claimed that the medics, the hospital, and the physicians violated her due process rights because the ketamine was administered as part of a study. See Buckley-v.-Hennepin-County_-2021-U.S.-App.-LEXIS-24257 [v]

Probably the most recent high-profile issue of restraint and use of force by both Police and Fire Paramedics involved Elijah McClain. Recently a settlement agreement was reached between the parents of Elijah McClain and the City of Aurora totaling 15 million dollars, making it one of the largest police-related settlements in Colorado history. Remember the reported facts that Elijah McClain was not suspected of committing any crime at the time of his arrest on Aug. 24, 2019. Rather, he had been walking home from a convenience store when someone called 911 to report him as acting suspiciously. Reports detail officers’ physical assault of McClain and paramedics’ administration of the powerful anesthetic ketamine at a dose much too high for someone McClain’s size. [vi]  The settlement comes after a grand jury issued 32 indictments against three Aurora police officers and two paramedics involved in detaining McClain, including charges of manslaughter and criminally negligent homicide in his death. [vii]

Elijah McClain’s death helped inspire a new police accountability law in Colorado that limits first responders’ ability to use ketamine to subdue someone and the Fire Department has re-analyzed the use of this powerful anesthetic. [1]

In a 2020 Texas case, a federal judge in Dallas decided that two firefighters whose lack of action led to a man dying due to a brain bleed can be sued by the victim’s family. The man, died after he was taken to the Dallas jail despite begging for help and telling police and firefighters that he was injured. His body was found hours later lying under his jail cell mattress, according to court documents. The patient died after two people were caught on video slamming his head into the sidewalk in December 2016.

The firefighters who responded to the beating call pleaded guilty in March 2019 to a charge of tampering with a government record regarding the case. They falsified reports by stating that the Dallas Police Department hauled Fletcher to jail before their arrival, according to the indictment, therefore, denied the defense of qualified Immunity.

Around the Country, there are many protections for first responders under a qualified immunity analysis.  In Connecticut, an opinion from the AG’s office related to volunteer firefighters holds that State law makes anyone who is an unpaid volunteer for a municipal agency immune from negligence liability for damage or injury resulting from any act, error, or omission made in the exercise of his policy or decision-making responsibilities if (1) he was acting in good faith and within the scope of his official functions and duties and (2) was not acting in violation of any state, municipal, or professional code of ethics regulating his conduct.

This state opinion and federal immunity do not apply to reckless, willful, or wanton misconduct; civil rights violations; or intentional torts such as assault and battery, false imprisonment, invasion of privacy, or defamation. A separate Connecticut statute also bars trespass actions against firefighters who go onto the property to extinguish or investigate fires (CGS §7-308). [viii]  Check your State law for your immunity protections.

Closer to my home in Washington State and found in all States are immunity statutes for first responders to include firefighters, paramedics, EMTs, First Responders, and Police officers. “The law that this is rooted in was intended to protect Americans from harm caused by state officials,” former state Attorney General Rob McKenna explained. “This dates back to the adoption of the 13th, 14th, and 15th Amendments after the Civil War.” Several years ago, the former AG Slade Gordon’s opinion related to the application of RCW 18.71.210 and he indicated it was designed to insulate certain persons from liability for rendering emergency medical services.  Specifically, that section concerns itself with the medical services rendered by mobile technicians and paramedics.

In an unpublished opinion in re: Lesa M. Samuels, v. Multicare Health System and Gloria N. Lem ARNP, Does 1-10, and the City of Tacoma, (No. 51827-9-II), the Appeals Court ruled that while applying this RCW to the case of patient care who believed she was having a stroke. The initial paramedic evaluation did not find signs or symptoms of a stroke at the time of their visit and left her home. She sought other opinions over the next several days and finally, a physician discovered that she did suffer from a stroke and the patient, Samuels, sued all of her providers including the City of Tacoma which included the responding paramedics.

In her ongoing litigation, the Plaintiff (Samuels) appeals the Superior Court’s order determining that the City of Tacoma was entitled to qualified immunity, dismissing her negligence claim, and awarding statutory costs to the City. Samuels argues that (1) the applicable standard of fault is simple negligence, (2) the qualified immunity statute, RCW 18.71.210(1), does not apply, and (3) there are genuine issues of material fact as to gross negligence, and thus, the City is not entitled to qualified immunity and the Superior Court erred.

The Court of Appeals held that RCW 18.71.210(1) applies, there are no genuine issues of material fact under the applicable gross negligence standard, the City is entitled to qualified immunity as a matter of law, and thus, the superior court did not err and affirmed the superior court’s order and award of statutory cost.

The bottom line here is that there is Qualified Immunity in these cases that the providers or other public service providers followed their rules and protocols and thus were protected.

A Push to End Qualified Immunity

There is a push to end Qualified Immunity.  In the months after George Floyd’s death, state legislators across the country tried to undo the legal doctrine that makes it virtually impossible to sue police officers for violating a person’s civil rights. Fueled by outrage over the actions of former Minnesota officer Derek Chauvin, the efforts to eliminate “qualified immunity” seemed poised to usher in a new era empowering citizens who felt wronged by the police. But then, in state after state, the bills withered were withdrawn or were altered beyond recognition. At least 35 state qualified-immunity bills have died in the past 18 months. [ix]

In New York City, the City Council is proposing ending qualified immunity to increase police accountability, the Council will vote on a bill that will effectively end qualified immunity as a defense for certain civil rights violations. New York courts have created their version of the federal doctrine of qualified immunity, which shields police officers who are performing discretionary functions from civil liability. The statement goes on, “together, the State and federal versions of qualified immunity have effectively prevented countless victims of police brutality and their families from obtaining financial damages and holding officers and the cities that employ them accountable”.  [x]

This is only a sample of the movement to end qualified immunity for public safety officers, mostly based on police actions but the overall effect will affect you and your ability to protect yourself against unintended harm or omissions in the course of your duty.

This is an ongoing and unresolved issue and I urge you and your department to stay on top of the legislation that may be pending in your State or Congress.

Prevention

Many of the issues noted above can be avoided by treating each patient or citizen interaction as if they were your family members; remembering your protocols and training; do not intentionally harm a patient; do not take shortcuts in patient care; do not falsify your documentation; being honest and truthful – we are not machines, but humans that can make a mistake. Make sure you are acting in good faith and within the scope of your official functions and duties and do not act in violation of any state, municipal, or professional code of ethics regulating your conduct.

Qualified Immunity is a defense available to all first responders, but let’s not find ourselves in a position to claim that immunity when providing services to our community.

Endnotes


[1] Ketamine is a dissociative anesthetic that has some hallucinogenic effects. It distorts perceptions of sight and sound and makes the user feel disconnected and not in control. It is an injectable, short-acting anesthetic for use in humans and animals.


[i] Police recruitment was already tough. Attacks on qualified immunity make matters worse. (yahoo.com)

[ii] Qualified Immunity: Explained – The Appeal

[iii] Qualified Immunity or Unlimited Impunity: Murder of George Floyd Demands Gutting the Doctrine of Qualified Immunity for Law Enforcement (syr.edu)

[iv] What is qualified immunity? How is George Floyd connected? – Los Angeles Times (latimes.com)

[v] Minnesota Medics Entitled to Qualified Immunity on Excessive Force Claim – Fire Law Blog

[vi] Settlement reached between family of Elijah McClain and city of Aurora – Colorado Newsline

[vii] Aurora police officers face manslaughter charges in Elijah McClain death – Colorado Newsline

[viii] https://www.cga.ct.gov/2007/rpt/2007-R-0250.htm

[ix] Dozens of states have tried to end qualified immunity. Police officers and unions helped beat nearly every bill. – The Washington Post

[x] Council Votes To End Qualified Immunity and Seven Other Measures to Reform NYPD – Press (nyc.gov)

This commentary reflects the views of the author and not necessarily the views of Fire Engineering.

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