A duty to keep a drug user from dying? | SierraSun.com

A duty to keep a drug user from dying?

Jim Porter/Porter - Simon

Does an arresting police officer have a legal obligation to administer CPR to an arrestee who stops breathing? That’s the question of the day.

San Francisco Police Officer Leslie Smith was waiting for a tow truck to remove a stolen car in San Francisco’s Tenderloin neighborhood, which if you don’t know is not Pacific Heights or Nob Hill. Officer Smith saw Glenn Fullard kicking in the door of the Tenderloin Police Station. He tried to get Fullard to stop but he kept right on kicking. Fullard refused to identify himself.

Fullard had bloodshot eyes, heavy perspiration, slurred speech and erratic behavior, but that didn’t stop him from continuing to kick the police station door.

Officer Smith pleaded with Fullard to stop kicking or he would be arrested. Smith tried to handcuff Fullard but he fought back. Finally the officer put in a call for backup. Ultimately, Fullard went down, and Officer Smith and the others positioned him on his side, noticing that his breathing was heavy and that his eyes were bulging. Fullard’s breathing then became shallow.

While the officers attended to Fullard, checking his pulse and breathing, they did not administer cardiopulmonary resuscitation (CPR).

Ten minutes later paramedics arrived. They pronounced Fullard dead at the scene. The coroner concluded that Fullard died of cocaine toxicity.

Did Fullard’s mother assume responsibility for her son’s behavior? No, of course not, she sued for a violation of Fullard’s civil rights, for wrongful death, false arrest, excessive force and unprovoked police attack. And unlawful search and seizure and violation of due process.

Given the constitutional claims, the case was filed in federal court.

Fullard’s mom claimed that her son was a good kid, he never hurt anyone and was looking forward to college (not really, I made that last part up), was unlawfully arrested solely for refusing to identify himself to a police officer.

The court conceded that citizens may not be arrested because they refuse to give their name, but noted that Fullard could be arrested if there was a “fair probability” he committed a crime. In fact, there was a fair probability Fullard was under the influence of a controlled substance. He was also guilty of disorderly conduct, vandalism and disturbing the peace. Fullard’s arrest was not unlawful.

Did the officers exercise excessive force by using a control hold and handcuffing Smith, forcing him to the ground while urging him to “calm down?” The court concluded that Officer Smith never threatened to use lethal force, nor did he punch or kick Fullard, or apply more force than was necessary to restrain Fullard during handcuffing.

The federal trial court had concluded that the arresting officer’s decision not to perform CPR might have constituted excessive force, so the court looked at that issue. In the end the court held that the Fourteenth Amendment due process clause does not establish a duty on the part of a police officer to render CPR in any or all circumstances. Officer Smith promptly requested medical assistance, and the Constitution required him to do no more.

The police officers and the City of San Francisco were found not to be at fault. No where in the court opinion is there any mention that because Fullard died of cocaine toxicity that he might, just might, have been responsible for his own death.

Jim Porter is an attorney with Porter – Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at porter@portersimon.com or at the firm’s Web site, http://www.portersimon.com.