No Police Immunity in TN Overdose Death Case

     (CN) – Two Roane County, Tenn., police officers are not immune for a battery claim against them in a man’s accidental death, a federal judge ruled.
     The Estate of Dustin Barnwell – through next of kin Shaili Barnwell, a minor by next friend Shasta Gilmore – sued Roane County, Tennessee and the police officers in 2013. Gilmore alleges battery, negligence and constitutional claims based on a decision to administer a paralytic drug to Barnwell, who died shortly after.
     Gilmore called police in November 2011 because she was concerned that Barnwell was overdosing on pills, according to the ruling. Defendants Richard Stooksbury and Mitch Grigsby, both Roane County police officers, arrived and found Barnwell unconscious.
     They woke Barnwell up but he became combative. Stooksbury and Grigsby were able to subdue Barnwell after a physical struggle in which he faded in and out of consciousness, the ruling states.
     Four paramedics arrived, who determined that Barnwell was possibly overdosing. They then administered paralytic drug Succinylcholine to Barnwell via IV, according to the ruling. The defendants in the case claim that the decision to administer the drug was made by the medics, but Gilmore claims the police officers made the call.
     The drug apparently stopped Barnwell from breathing on his own, so medics inserted a tracheal tube. They evidently inserted the tube down his esophagus rather than his trachea, which led the tube to his stomach and did not help him breathe.
     “Mr. Barnwell then began suffering ‘cardiac issues’ and the medics administered additional medications and began CPR. When brown fluid appeared in the tracheal tube, the medics removed the tube and placed it correctly down Mr. Barnwell’s airway,” the ruling states. “Mr. Barnwell died shortly after arriving at the hospital. The parties dispute his actual cause of death.”
     U.S. District Judge Pamela Reeves ruled last week that Roane County is immune from Gilmore’s battery claim but held that Stooksbury and Grigsby are not because the Tennessee Governmental Tort Liability Act does not grant immunity to individuals.
     “Under Tennessee law, battery is ‘any intentional, unlawful and harmful (or offensive) contact by one person with the person of another,'” Reeves wrote. “In this case, while there is no question that there was an intentional contact, the parties do dispute whether the contact was unlawful. Officers Stooksbury and Grigsby, therefore, are not entitled to summary judgment on the plaintiff’s battery claims.”
     Reeves denied the defendants’ motion for summary judgment on Gilmore’s excessive force claim because the court currently does not have a way of determining whether administering a paralytic drug is reasonable or whether it constitutes excessive force. The judge made the same determination for Gilmore’s state-created danger doctrine claim related to the intentional temporary paralyzing of Barnwell.
     “Any reasonable officer with a general understanding of Fourth Amendment law should be on notice that needlessly paralyzing an individual with a punitive intent, or even with the simple intent to put an end to an annoyance, likely falls outside constitutionally permissible behavior,” she wrote.
     Reeves held that Gilmore’s claims of equal protection and conspiracy to obstruct or impede the due course of justice are without merit because she has not proven a conspiracy and racial or class-based hostility.
     Regarding Gilmore’s negligence claim, the judge held that the local government is immune.
     “This is clearly a civil rights case. The torts alleged by plaintiff were allegedly committed within the context of the plaintiff’s civil rights violations. This court has consistently held that a party cannot circumvent a municipality’s immunity by couching civil rights claims in the guise of negligence,” Reeves wrote. “Roane County is immune under the TGTLA, and is therefore entitled to summary judgment on its state-law claims.”

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