March 2017 Firelaw Newsletter

March, 2017 Newsletter

ITEMS COVERED:

• New textbook – Fire Service Law (Second Edition); seminars by author;
• 2, FF Safety – WA: Cancer – Statutory Presumption, Workers Comp;
• 6, Employment Litigation – VA: Social Media Policy, PD Policy Too Broad;
• 12, Drug-Free Workplace – OH: Supreme Court, Cocaine & Fillers;
• 13, EMS – TN: Combative Patient Dies, EMS Denied Qualified Immunity;
• 13, EMS – OH: Drug Overdose 911 Callers, No Arrest Minor Drugs.

Author’s New Textbook / Seminars

Fire Service Law (Second Edition): http://www.waveland.com/browse.php?t=708 [if you teach firefighters and cover legal issues, contact publisher for courtesy copy];

Author’s upcoming seminars:

• March 11, 2017: Community Paramedicine - Highland County EMS Conference – (8:55 am – 9:45 am); Hillsboro High School; Host: Scott Miller (Cell 937-403-3121);
• March 12, 2017: Legal Lessons Learned For Fire Chiefs – Ohio Fire Academy, Reynoldsburg, OH (9 am – 10:30 am); Host: Steve Goheen (Cell 614-644-0523);
• March 16, 2017: Community Paramedicine – Quick Response Teams - Colerain Township (9 am – noon); Host: Assistant Fire Chief Will Mueller (Cell 513-473-5427);
• March 18, 2017: EMS Legal Lessons Learned / Ethics - Coshocton County EMS Conference, Zanesville, OH; Host: Bill Barks (Cell 614-441-2224);
• March 20, 21 & 22, 2017 (1:30 pm – 3:30 pm) - EMS Report Writing – Mason Fire Department; Host: Lt. Julie Miller (Work 513-229-8540);
• March 30, 2017 (12 noon – 4 pm) – Legal Lessons Learned In Fire Service – Athens Fire Department; Host: Lt. Matthew Hall (Cell 740-591-9072); Athens County Fire Association (6 pm – 9 pm); Host: Mike Philibin (Cell 330-550-7124);
• April 3, 2017 (12:45 pm – 2 pm) – Drones For Emergency Responders - UC Osher Lifelong Learning Institute – Victory Parkway Auditorium; Host: Cate O’Hara (Work 513-556-9174);
• April 18, 2017 (1 pm – 1:45 pm) – Social Media Legal Issues – Veteran Apothecaries Association of Cincinnati, Raffel’s Banquet Hall ; Host: Jim Liebetrau (Cell 859-750-3506);
• May 22, 2017 (6 pm – 9 pm) – EMS Report Writing – University Hospitals; Host: Heather Flinner (Work 419-289-0491 ext. 2560);
• June 14 & 15, 2017 – Social Media & Fire Service – National Fire Academy, Professional Development Seminar; Hot: Mike McCabe (Work: 301-447-1894);
• June 20, 2017 – Legal Lessons Learned – New Jasper Township Fire Department; Host: Captain Garrett Sargraves (Cell 937-608-0044).

File – Chap. 2, Firefighter Safety & LODD

WA: CANCER – TWO FFs WITH MALIGNANT MELANOMA –STATUTORY PRESUMPTION - WORKERS COMP

On Feb. 9, 2017, in Delmis Spivey & Wilfred Larson v. City of Bellevue and Department of Labor And Industries, the Washington Supreme Court (En Banc, all 9 Justices) held that the 2002 amendment to state law, RCW 51.32.185, “reflects the legislature's intent to relieve a firefighter of unique problems of proving that firefighting caused his or her disease. Accordingly, we apply the firefighter presumption with a force that gives life to the legislature's words.

http://caselaw.findlaw.com/wa-supreme-court/1777346.html

Facts:

Wilfred Larson case:

“Wilfred Larson was diagnosed with malignant melanoma (melanoma) in his lower back in 2009. He had worked as a firefighter and emergency medical technician for the City since 1979. He filed a claim with the Department of Labor and Industries (the Department), seeking coverage for his melanoma as an occupational disease. The Department allowed the claim, applying the presumption in RCW 51.32.185(1).

The City appealed to the Board. *** The City presented testimony from medical professionals and researchers who indicated that Larson may have developed melanoma even if he had never worked as a firefighter. The dermatologist who diagnosed Larson testified that she suspected ‘the most contributing factor’ to Larson's melanoma was UV (ultraviolet light) exposure. VRP (Aug. 13, 2013) at 730-32. Another dermatologist testified that he believed Larson's melanoma was the result of ‘predisposing genetic factors and ultraviolet light exposure’ and that Larson likely would have contracted melanoma even if he had never worked as a firefighter. VRP (Aug. 12, 2013) at 608-09. Another witness, an epidemiologist, analyzed various studies and noted that it would be inappropriate to conclude that firefighters are at any increased risk of melanoma.

The Board reversed the benefits award, finding that Larson's melanoma did not arise from distinctive conditions of his employment as a firefighter.

[Case was then tried to a jury which ruled for firefighter.] The trial court entered a judgment in Larson's favor and also awarded Larson attorney fees and costs incurred before the Board and the court.

Delmis Spivey case:

Like Larson, Spivey filed a claim with the Department, seeking coverage for his melanoma as an occupational disease. However, the Department ultimately denied the claim in 2013. *** However, Spivey admitted to having a number of risk factors for melanoma, including a predominately English heritage, freckles, and a history of sunburns as a child. He also admitted that he used a tanning bed “once or twice” in his early 20's. Admin. Record (AR) at 370 (trial transcript at 163, Apr. 12, 2014.

***

The Board determined that the City rebutted the firefighter presumption by proving by a preponderance of the evidence that Spivey's melanoma was caused by ‘sun exposure, not his work activities and exposures.’ AR at 3. The Board affirmed the Department's order rejecting Spivey's claim.

***

Unlike in Larson, the judge granted the City's motion (after making a few changes to its wording) and went on to decide that the City had met its burden to rebut the presumption of ‘occupational disease’ within the meaning of RCW 51.32.185. Id. at 175.”

Holding:

“We hold that the question whether the City rebutted the presumption in RCW 51.52.185 is one of fact that may be submitted to the jury. In Spivey, the trial court erred when it decided the issue as a matter of law. We also clarify that RCW 51.32.185 shifts both the burden of production and the burden of persuasion to the employer. Thus, in Larson, jury instruction 9 accurately stated the applicable law. Finally, we find that Larson is entitled to attorney fees for litigating his claim before the Board and before this court.”

Legal Lessons Learned: Many states, including Ohio, have enacted statutory presumption legislation regarding certain firefighter cancers. Workers comp disputes under the statutes will ultimately be decided by your state courts. See article from WA on this important state court decision: http://www.bellevuereporter.com/news/supreme-court-decides-in-favor-of-bellevue-firefighters-in-skin-cancer-case/

See Jan. 4, 2017 Ohio TV story on Ohio Senate Bill 27, now known as the Michael Louis Palumbo Jr. Act, including interview with Captain Palumbo, fighting brain cancer: http://www.wlwt.com/article/gov-kasich-signs-firefighter-cancer-bill/8562687

File – Chapter 6, Employment Litigation

VA: SOCIAL MEDIA POLICY TOO BROAD – DISCIPLINE OF TWO POLICE OFFICER SET ASIDE

On Dec. 15, 2016 in Herbert E. Liverman and Vance R. Richards v. City of Petersburg, the U.S. Court of Appeals for 4^th Circuit (Richmond, VA) held (3 to 0):

“While we are sensitive to the Department's need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance.”

http://www.ca4.uscourts.gov/Opinions/Published/152207.P.pdf

Facts:

“The pertinent facts in this case are not in dispute. Plaintiffs Herbert Liverman and Vance Richards were veteran police officers in the City of Petersburg's Police Department. Both served as field officers under Chief John Dixon, who led the Department. Dixon in turn served under the general direction of the City Manager.

In April 2013, Chief Dixon issued a general order revising the Department's social networking policy. That policy governs officers' use of social media platforms. The preface to the revised policy prohibits in sweeping terms the dissemination of any information ‘that would tend to discredit or reflect unfavorably upon the [Department] or any other City of Petersburg Department or its employees.’ J.A. 161. The central provision of the policy, which we will refer to as the Negative Comments Provision, states:

Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public's perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law. J.A. 162.

Another provision, which we label the Public Concern Provision, specifies:

Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances must be judged on a case-by-case basis. Id.

The policy nonetheless ‘strongly discourages employees from posting information regarding off-duty activities’ and provides that violations will be forwarded to the Chief of Police for ‘appropriate disciplinary action.’ J.A. 163.”

Discipline

“This case concerns the Department's application of the social networking policy to the following conversation between Liverman and Richards. While off-duty on June 17, 2013, Liverman posted a message to his Facebook page:

Sitting here reading posts referencing rookie cops becoming instructors. Give me a freaking break, over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it takes at least 5 years for an officer to acquire the necessary skill set to know the job and perhaps even longer to acquire the knowledge to teach other officers. But in todays world of instant gratification and political correctness we have rookies in specialty units, working as field training officer's and even as instructors. Becoming a master of your trade is essential, not only does your life depend on it but more importantly the lives of others. Leadership is first learning, knowing and then doing. J.A. 398.

More than thirty people ‘liked’ or commented on this post. Richards, also off-duty at the time, commented as follows:

Well said bro, I agree 110%․ Not to mention you are seeing more and more younger Officers being promoted in a Supervisor/ or roll. It's disgusting and makes me sick to my stomach DAILY. LEO Supervisors should be promoted by experience․ And what comes with experience are ‘experiences’ that ‘they’ can pass around to the Rookies and younger less experienced Officers. Perfect example, and you know who I'm talking about. How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1 1/2yrs experience in the street? Or less as a matter of fact. It's a Law Suit waiting to happen. And you know who will be responsible for that Law Suit? A Police Vet, who knew tried telling and warn the admin for promoting the young Rookie who was too inexperienced for that roll to begin with. Im with ya bro․smh * J.A. 399.

Later that day, Liverman responded to Richards with a comment of his own:

There used to be a time when you had to earn a promotion or a spot in a specialty unit․but now it seems as though anything goes and beyond officer safety and questions of liability, these positions have been ‘devalued’․and when something has no value, well it is worthless. Id.

Richards then replied:

Your right.․ The next 4yrs can't get here fast enough․ From what I've been seeing I don't think I can last though. You know the old ‘but true’ saying is․ Your Agency is only as good as it's Leader(s)․ It's hard to ‘lead by example’ when there isn't one․ smh J.A. 400.

[Note: “Smh” is an acronym for “shaking my head.”]

Among those who liked or commented on the Facebook postings, most were current or former Department officers. Two sergeants, Liverman's and Richards's supervisors, learned of the exchange and notified Chief Dixon of the issue. Dixon determined that the statements violated the Department's social networking policy and instructed the sergeants to discipline the officers. In the disciplinary action forms, the Department stated that Liverman's follow-up comment and both of Richards's comments violated the Negative Comments Provision. They each received an oral reprimand and six months' probation, but were advised that such discipline would not affect their eligibility for promotion. Both the City Manager and Human Resources Director signed the personnel action forms indicating their probationary status.”

***

Several weeks later, however, Chief Dixon altered the qualifications for promotion. The new protocol expressly excluded any officers on probation from participating in the promotion process. Accordingly, when Liverman and Richards applied for open sergeant positions, the Department notified them that they were ineligible to sit for the promotional exam.

On October 1, 2013, the two officers sent a letter informing the City that they intended to challenge the disciplinary actions. Shortly thereafter, Liverman and Richards were the subject of several complaints and investigations within the Department. Based on the findings, Chief Dixon decided to fire Liverman, but Liverman resigned before receiving notice of his termination.”

Lawsuit – 42 USC 1983

“On March 5, 2014, Liverman and Richards filed a six-count complaint in federal district court under 42 U.S.C. § 1983, seeking damages and other relief against Chief Dixon and the City for various violations of the First Amendment. The two officers claimed that the social networking policy infringed their free speech rights in Counts One (Liverman) and Two (Richards). Liverman and Richards also challenged the adverse disciplinary actions taken pursuant to the policy in Counts Three and Four, respectively. Finally, they alleged in Counts Five and Six that the Department instituted subsequent investigations against them in retaliation for proceeding with the instant suit.”

Holding – Social Media Policy Too Broad

“The legal framework governing public employee speech claims is well known. Public employees may not ‘be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.’ Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). Underlying this principle is the recognition that ‘public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers.’ City of San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam). Nonetheless, a citizen who accepts public employment ‘must accept certain limitations on his or her freedom.’ Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Government employers enjoy considerable discretion to manage their operations, and the First Amendment ‘does not require a public office to be run as a roundtable for employee complaints over internal office affairs.’ Connick v. Myers, 461 U.S. 138, 149 (1983).

***

The district court granted summary judgment to Liverman on his challenge to the social networking policy, but denied Richards's parallel claim on the grounds that his speech was not protected by the First Amendment. We hold that the Department's social networking policy is unconstitutionally overbroad and, for the following reasons, award judgment to Richards on his claim as well.

***

The threshold question in this case is whether the Department's policy regulates officers' rights to speak on matters of public concern. There can be no doubt that it does: the restraint is a virtual blanket prohibition on all speech critical of the government employer. The explicit terms of the Negative Comments Provision prevent plaintiffs and any other officer from making unfavorable comments on the operations and policies of the Department, arguably the ‘paradigmatic’ matter of public concern. Sanjour v. EPA, 56 F.3d 85, 91 (D.C. Cir. 1995); see also Roe, 543 U.S. at 80.

Weighing the competing interests on either side of the Pickering/NTEU balance, we begin by noting the astonishing breadth of the social networking policy's language. The policy seeks to prohibit the dissemination of any information on social media ‘that would tend to discredit or reflect unfavorably upon the [Department].’ J.A. 161. In particular, the Negative Comments Provision proscribes ‘[n]egative comments on the internal operations of the Bureau’ — which could be just about anything — or on the ‘specific conduct of supervisors or peers’ — which, again, could be just about anything. J.A. 162.

***

Here, however, the Department fails to satisfy its burden of demonstrating actual disruption to its mission. Apart from generalized allegations of budding ‘divisiveness’ and claims that some ‘patrol officers sought [shift] transfers,’ J.A. 502, Chief Dixon presented no evidence of any material disruption arising from plaintiffs' — or any other officer's — comments on social media. We do not deny that officers' social media use might present some potential for division within the ranks, particularly given the broad audience on Facebook. But the speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers' freedom to debate matters of public concern. See Connick, 461 U.S. at 152; McVey v. Stacy, 157 F.3d 271, 279 (4th Cir. 1998) (Murnaghan, J., concurring in part and concurring in the judgment) (‘A stronger showing of public interest in the speech requires a concomitantly stronger showing of government-employer interest to overcome it.’).

***

If the Department wishes to pursue a narrower social media policy, then it can craft a regulation that does not have the chilling effects on speech that the Supreme Court deplored. We cannot, however, allow the current policy to survive as a management and disciplinary mechanism.

***

In light of the First Amendment protection accorded to the officers' posts, we conclude that the discipline they received pursuant to the social networking policy was unconstitutional.”

Holding – Police Chief Not Entitled To Qualified Immunity

“We appreciate the need for order and discipline in the ranks. See Maciariello, 973 F.2d at 300 (recognizing that ‘greater latitude is afforded to police department officials in dealing with dissension’). At the same time, we cannot countenance an arm of government with such enormous powers being removed to this extent from public scrutiny. This is not an all- or-nothing matter; there is a balance to be struck. But the Department's social networking policy, and the disciplinary actions taken to enforce it, lean too far to one side. We therefore hold that Chief Dixon is not entitled to qualified immunity.”

Holding – No Retaliation

“Plaintiffs argue that the retaliation took the form of investigating their conduct on the force. We cannot conclude, however, that plaintiffs have raised an issue of triable fact that the investigations were pretextual. See McVey, 157 F.3d at 277-78. There were independent bases for each investigation. Liverman was investigated twice. In notifying the City of his First Amendment claims, Liverman requested a wide range of personnel records. While searching for responsive documents, the Department discovered that Liverman had sent sexually explicit emails to a female officer. The Department launched an investigation for sexual harassment, during which Liverman admitted to engaging in sexual misconduct on Department property and while on duty. Additionally, Liverman was investigated for an incident in which he ignored Chief Dixon's orders and failed to maintain his duty post as directed.”

Holding – City May Also Be Liable

“We deal here not merely with an individual employment decision, see Crowley v. Prince George's Cty., 890 F.2d 683, 687 (4th Cir. 1989), but a broad policy setting forth all the ground rules for employee speech. An entity has ‘final’ authority to set this sort of policy when no further action is needed for the policy to take effect. The Supreme Court has expressly noted that ‘[a]uthority to make municipal policy ․ may be delegated by an official who possesses such authority’ to another official. Pembaur, 475 U.S. at 483. Here the fact that Dixon serves ‘under the direction and control of the city manager’ does not necessarily establish that he lacked final authority to promulgate the policy whose validity has been successfully challenged herein. We must therefore remand to the district court to undertake a more particularized inquiry into whether Chief Dixon possessed final authority to set policies on the parameters of speech on the part of those law enforcement officers under his command. If so, the City may also be held liable for the injuries that were caused by the applications of that policy.”

Conclusion

“Running a police department is hard work. Its mission requires capable top-down leadership and a cohesion and esprit on the part of the officers under the chief's command. And yet the difficulty of the task and the need for appropriate disciplinary measures to perform it still does not allow police departments to wall themselves off from public scrutiny and debate. That is what happened here. The sensitivity of all the well- known issues that surround every police department make such lack of transparency an unhealthy state of affairs. The advent of social media does not provide cover for the airing of purely personal grievances, but neither can it provide a pretext for shutting off meaningful discussion of larger public issues in this new public sphere.”

Legal Lessons Learned: Important decision; one of the first in Federal Court of Appeals on social media.

File – Chapter 12, Drug-Free Workplace

OH: STATE SUPREME COURT – COURT HOLDS THAT TOTAL WEIGHT OF COCAINE & FILLERS - MANDATORY SENTENCE

On March 6, 2017 in State v. Gonzales, Slip Opinion No. 2017-Ohio-777, the Court reverses a prior decision in this case upon motion by Ohio Attorney General (5 to 2):

“We now hold that the entire ‘compound, mixture, preparation, or substance,’ including any fillers that are part of the usable drug, must be considered for the purpose of determining the appropriate penalty for cocaine possession under R.C. 2925.11(C)(4)….

Possession of any amount of the drug exceeding 5 grams is penalized more severely than a fifth-degree felony, id., and possession of an amount of the drug exceeding 100 grams is a first-degree felony, in which case the offender is also designated as a major drug offender and the court must impose a mandatory maximum prison term, id. at (C)(4)(f).

Footnote 3: One hundred grams of powder cocaine is approximately 1,000 doses of powder cocaine for intranasal consumption.”

http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2017/2017-Ohio-777.pdf

Facts:

[Note by author of this Newsletter: House Bill 86, which was effective Sept. 30, 2011, eliminated racial disparity in sentencing for crack cocaine versus powdered cocaine, by decreasing the penalty for crack cocaine. “Subsequent to the enactment of H.B. 86, possession of the same amount of cocaine is now a fourth-degree felony, which allows a court to

sentence a defendant to community-control sanctions rather than to mandatory prison time.

See R.C. 2929.13(B)(1). State v. Limoli, 140 Ohio St.3d 188, 2014-Ohio-3072: https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2014/2014-ohio-3072.pdf .]

Chief Justice O’Connor:

“In State v. Gonzales, __ Ohio St.3d__, 2016-Ohio-8319, ___ N.E.3d ___ (“Gonzales I”), the court determined that in prosecuting cocaine-possession offenses under R.C. 925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that the weight of the actual cocaine, excluding the weight of any filler materials, meets the statutory threshold.

The state contends that Gonzales I was decided in error and that it is based upon inconsistent application of the principles of statutory construction. A majority of the court grants the state’s motion for reconsideration.

***

“The Ohio Legislative Service Commission’s analysis of Am.Sub.H.B. No. 86, which amended R.C.2925.11(C)(4), explains that one purpose of the legislation was to eliminate the distinction that had existed between penalties for drug offenses involving crack cocaine and drug offenses involving powder cocaine and replace that distinction with a penalty for drug offenses ‘involving any type of cocaine.’ (Emphasis added.)

***

“The equalization of the penalties for possession of crack and powder cocaine was driven in large part by the need to address the racial disparity in the drug-offender prison population, not by the need to address variances in cocaine purity.

***

Footnote 5:

Like the federal system, blacks have been disproportionately incarcerated in Ohio. The Ohio Office of Criminal Justice Services reported that at midyear 2005, Ohio incarcerated blacks at an alarming rate of 2,196 per 100,000 U.S. residents and incarcerated whites at a rate of 344 per 100,000 U.S. residents. Also similar to the federal system, Ohio law treats crack cocaine offenders much more harshly than it treats powder cocaine offenders.

Dissent – Justice Kennedy

“The statute signals the legislature’s intent to reduce prison population by eliminating presumptive prison sentences for some nonviolent drug offenders: it requires that prosecutors prove the ‘grams of cocaine’ and creates a presumption of incarceration for only those drug offenders who possess the specific number of grams of ‘cocaine’ identified in R.C. 2925.11(C)(4), not those drug offenders whose product has only ‘some detectable amount’ of cocaine.”

Legal Lessons Learned: House Bill 86 (effective Sept. 30, 2011) eliminated the difference in criminal penalties for crack and powdered cocaine. Under prior law, “possession of more than five grams but less than ten grams of crack cocaine was a third-degree felony that resulted in mandatory prison time. Former R.C.925.11(C)(4)(c).” https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2014/2014-ohio-3072.pdf

File – Chapter 13, EMS

TN: COMBATIVE PATIENT – SUCCINYLCHOLINE USED – FAILED INTUBATION – NO QUALIFIED IMMUNITY FOR EMS

On March 3, 2017, in Estate Of Dustin Barkwell v. Mitch Grigsby, Richard Stooksbury, David Randel, Robery Cooker, the U.S. Court of Appeals for 6^th Circuit (Cincinnati, OH) held 3 to 0 (unpublished decision) that the trial judge properly did not dismiss the lawsuit against the EMS or police officers:

“In Dr. Perlaky's view, Barnwell ‘died because the medics did not reverse the consequences of their initial mistake, i.e., paralyzing the lungs of an ably breathing . . . man’ and ‘they inserted the breathing tube improperly’ into Barnwell's esophagus, not his trachea.”

http://www.opn.ca6.uscourts.gov/opinions.pdf/17a0137n-06.pdf

Facts:

“After taking eight prescription muscle relaxant pills, Dustin Barnwell lost consciousness for several hours. In the course of attending to Barnwell, police officers and paramedics administered succinylcholine, a drug that paralyzes the body, including the muscles used to breathe. After a failed intubation attempt, Barnwell died. His estate sued the officers and paramedics, alleging that administering succinylcholine constituted excessive force, among other legal claims.

***

By around 8:00 p.m., Barnwell still had not awakened. Concerned that he overdosed, [his fiancée, Shasta ] Gilmore called 9-1-1. She told the operator that Barnwell had consumed eight Flexeril pills, and she requested an ambulance. She also said that when she tried to get him up off the couch, he kept ‘wanting to fight’ with her and was ‘very combat[ive].

***

Sergeant Stooksbury attested that when he tried to wake Barnwell by shaking his foot, the man ‘arose and immediately became combative by kicking.’ In response, the officers grabbed his arms to hold him down. Despite the two officers' efforts, however, Barnwell kicked and tried to bite them. The officers also attested that he went in and out of consciousness. Because Barnwell was too difficult to control, the officers took him to the ground and pinned him on the floor.

Around this time, Roane County EMS paramedic David Randle arrived. He observed Barnwell continuing to struggle with Sergeant Stooksbury and Officer Grigsby, and he asked the officers to handcuff Barnwell so that he could insert an IV line. The officers cuffed Barnwell.

***

They decided to initiate Roane County's Rapid Sequence Paralysis and Intubation Protocol (RSI Protocol). The ‘Assessments and Indications’ call for using the protocol on patients who are ‘[s]everely combative’ or patients for whom ‘[all] standard attempts to establish an airway have failed.’ To carry out the protocol, they administered succinylcholine, a muscle relaxant that paralyzes muscles in less than a minute, including those used to breathe. After achieving paralysis, Randle and Cooker intubated Barnwell—that is, placed a plastic tube in his trachea to open his airway. Unfortunately, however, Barnwell began suffering cardiac issues. While transporting Barnwell to the hospital, Cooker and Randle noticed brown fluid leaching into the intubation tube. They removed the tube and began CPR. Barnwell died at the hospital thirty minutes later.

According to the autopsy report, excited delirium syndrome (EDS) following a Flexeril overdose caused Barnwell's death. EDS is a rarely observed phenomenon ordinarily associated with cocaine and methamphetamine consumption. Its symptoms include paranoia, disorientation, tachycardia, and hyper-aggression.

But Plaintiff's expert, Dr. Steven Perlaky, considers it highly unlikely that Flexeril caused Barnwell's death. After reviewing Barnwell's medical records and the EMS reports from the evening, Dr. Perlaky concluded that the ‘succinylcholine delivered to Mr. Barnwell was unnecessary’ because Barnwell appeared to have been able to breathe on his own, as evidenced by his ‘engag[ing] in acts that required normal breathing’ (i.e., kicking at the officers). In Dr. Perlaky's view, Barnwell ‘died because the medics did not reverse the consequences of their initial mistake, i.e., paralyzing the lungs of an ably breathing . . . man’ and ‘they inserted the breathing tube improperly’ into Barnwell's esophagus, not his trachea. In an affidavit he also stated that ‘[t]here [was] no rational theory in the health sciences for paralyzing the lungs in this situation.’ He concluded ‘within a reasonable degree of medical certainty that the choice to administer [succinylcholine] was made without any proper medical foundation.’”

Holding:

"’Qualified immunity shields government officials from standing trial for civil liability in their performance of discretionary functions unless their actions violate clearly established rights.’ Thompson v. City of Lebanon, Tenn., 831 F.3d 366, 369 (6th Cir. 2016) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

***

Like the officer defendants, paramedics Randle and Cooker argued for qualified immunity at summary judgment based on Peete, asserting that they administered succinylcholine in their capacity as medical responders and that use of the paralytic drug was medically necessary. The district court, however, disagreed that the record undisputedly supported this contention. Noting Dr. Perlaky's statement that there was ‘no rational theory in the health sciences for paralyzing the lungs in [Mr. Barnwell's] situation,’ it concluded that a genuine dispute of fact barred it from granting them qualified immunity.

***

The paramedics also assail Dr. Perlaky's medical conclusions in other ways, citing proposed testimony in expert disclosures from three different physicians. These expert disclosures, however, to the extent they impugn Dr. Perlaky's opinion, simply create more disputes of fact that lie outside our jurisdiction to review.”

Legal Lessons Learned: Carefully review your EMS protocol regarding use of drugs with a combative patient, and protocol on confirming intubation.

File – Chapter 13, EMS

OH: DRUG OVERDOSE – 911 CALLERS - IMMUNITY FROM ARREST OR PROSECUTION FOR MINOR DRUG POSSESSION

The National Conference Of State Legislatures published on Jan. 20, 2017 a summary of state laws granting immunity to individuals who call 911 to help another. http://www.ncsl.org/research/civil-and-criminal-justice/drug-overdose-immunity-good-samaritan-laws.aspx

“To encourage people to seek out medical attention for an overdose or for follow-up care after naloxone has been administered, 37 states and the District of Columbia have enacted some form of a Good Samaritan or 911 drug immunity law. These laws generally provide immunity from arrest, charge or prosecution for certain controlled substance possession and paraphernalia offenses when a person who is either experiencing an opiate-related overdose or observing one calls 911 for assistance or seeks medical attention. State laws are also increasingly providing immunity from violations of pretrial, probation or parole conditions and violations of protection or restraining orders.”

Ohio enacted a 911 Good Samaritan law, effective September 13, 2016 (House Bill 110): https://www.legislature.ohio.gov/legislation/legislation-summary?id=GA131-HB-110 – now in Ohio Revised Code, including: http://codes.ohio.gov/orc/2925.11

(viii) "Qualified individual" means a person who is not on community control or post- release control and is a person acting in good faith who seeks or obtains medical assistance for another person who is experiencing a drug overdose, a person who experiences a drug overdose and who seeks medical assistance for that overdose, or a person who is the subject of another person seeking or obtaining medical assistance for that overdose as described in division (B)(2)(b) of this section.

***

“(b) Subject to division (B)(2)(f) of this section, a qualified individual shall not be arrested, charged, prosecuted, convicted, or penalized pursuant to this chapter for a minor drug possession offense if all of the following apply:

(i) The evidence of the obtaining, possession, or use of the controlled substance or controlled substance analog that would be the basis of the offense was obtained as a result of the qualified individual seeking the medical assistance or experiencing an overdose and needing medical assistance.

***

(i) Seeking or obtaining medical assistance in good faith for another person who is experiencing a drug overdose;

The Ohio law has been criticized for two provisions. http://www.cleveland.com/open/index.ssf/2016/06/ohio_911_good_samaritan_law_gr.html

“The Senate added two provisions critics say discourage people from calling for help:

• Immunity is only good for two times and not available for people on parole.
• Medical professionals can share with law enforcement the name and address of the person who overdosed for further investigation and follow-up.”

Legal Lessons Learned: Our nation is experiencing an epidemic of drug overdoses, and the Good Samaritan laws are helpful in encouraging people to call 911. Another helpful development – Quick Response Teams making follow-up home visits of those saved by Narcan. See 3/2/2017 TV story on Colerain Township, OH: “Colerain Overdose Response Program Gaining National Attention,” http://www.fox19.com/story/34654715/colerain-overdose-response-program-gaining-national-attention.