Larry's Legal Lessons: Scene Safety & Responsibility

Legal Lessons Learned: After leaving a violent scene, do not return to your station since your immediate EMS services may be needed. In this case, the subject stopped breathing while face down, and in handcuffs, and died of "positional asphyxia." The family of deceased may proceed with lawsuit against firefighters, police and the city.

On April 4, 2008, in Bessie Jones, Administratrix of the Estate of Nathaniel Jessie Jones, Deceased vs. City of Cincinnati, et al., the U.S. Court of Appeals for the 6th Circuit (3 to 0) affirmed the decision of U.S. District Judge Susan Dlott, who denied the motion of nine police officers, including six patrolmen and three supervisors, to be dismissed from the lawsuit filed by the family of the deceased. The Court of Appeals agreed with Judge Dlott that these police officers (like the three firefighter/EMTs who left the scene and returned to their fire station) are not entitled to "qualified immunity." The Court of Appeals wrote, "None of the officers provided mouth-to-mouth resuscitation or other respiratory aid. Instead, they stood there and discussed the absence of fire personnel."

On Oct. 17, 2006, Judge Dlott had issued an 18-page decision, denying the police officers' motion to dismiss, and also holding that three firefighters, while they had no duty to immediately treat Mr. Jones or to remain at the immediate scene of the arrest, can not be dismissed from the "wrongful death" claim since their decision to return to the station may have amounted to "wanton misconduct." 2006 U.S. Dist. LEXIS 75430.

Nathaniel Jones had entered a White Castle restaurant in the early morning of Nov. 30, 2003. At about 5:30 a.m., a White Castle employee called 911, advising that a person had lost consciousness in their parking lot. The fire department responded with an engine company, with an acting lieutenant and two other EMTs. Nathaniel Jones had regained consciousness and reentered the restaurant. He then exited the White Castle and was "walking and dancing" in the parking lot.

The firefighters arrived and saw this erratic behavior, and immediately requested police at the scene. The first two police officers arrived and told dispatch they needed a supervisor with a tazer, and also called for a police Medical Help Response Team. The two officers approached Jones. He took a swing at one of the officers. The officers then physically tried to subdue Jones, striking him with their PR-24 batons. It soon became a "ground fight."

Judge Dlott wrote that the firefighters "left the scene as Officers Pike and Osterman began to struggle with Jones."

As the engine company departed, four more police officers and three police supervisors arrived. In a violent struggle, using their PR-24s and mace, they finally got handcuffs on Jones while he lay face down.

According to the allegations in the plaintiff's lawsuit, "Jones remained face down on the ground, lying on his stomach with his hands cuffed behind his back. The officers then rolled Jones on his back and saw that he was not breathing. After realizing that the firefighters had left the scene, an officer recalled them to provide medical care for Jones. None of the officers gave Jones respiratory support, mouth-to-mouth, or CPR. None of the officers had with them a mouth barrier for use in mouth-to-mouth resuscitation."

The police called for the firefighters to return to the scene. The firefighters asked the police officers to remove his handcuffs. The officers initially refused, but eventually did remove them. Despite the best efforts of the firefighter/EMTs, Mr. Jones died. The coroner attributed the death to "positional asphyxia" with cocaine/alcohol induced delirium, and obesity.

Firefighters Did Not Have Duty to Stay at Immediate Scene
Judge Dlott explained in her opinion that there is no case law establishing a clear duty by the firefighters to remain at the immediate scene. The firefighters therefore must be dismissed from the claim that they violated Mr. Jones' rights under 14th Amendment to U.S. Constitution, which guarantees protection of individuals against arbitrary action of the government (42 U.S.C. 1983). They enjoy "qualified immunity" since there was no duty to stay at the White Castle.

"While Jones' right to medical care after being injured by the police officers was clearly established, Plaintiffs have failed to guide this Court to precedent that clearly establishes an individual's constitutional right to have firefighters remain on the scene during the course of an arrest. At the time Jones' medical need arose, the firefighters were simply not present. Neither did Jones have a constitutional right to medical care before he was detained by the police. Thus, that the firefighters did not initially treat Jones when they arrived at the White Castle restaurant did not state a claim under Sec. 1983. Accordingly, Defendant's Motion to Dismiss is GRANTED as to the Plaintiffs' Sec. 1983 claim against the firefighters for isolation of Jones' Fourteenth Amendment rights in grounds of qualified immunity."

Duty to Stage Nearby
Judge Dlott, however, denied the firefighters' motion to be dismissed from the "wrongful death" claim. They returned to the fire station "with knowledge of the risk and foreseeable injury" to Jones. Significantly, Judge Dlott referred to comments one of the firefighters made during a post-incident investigation about why they returned to the station:

"I knew that when the police get on the scene with someone, it's how...Mr. Jones [was] acting? If something was going to come up, I didn't want to see it. I didn't want to be privy to it."

The plaintiffs may now proceed with pre-trial discovery in the lawsuit, including taking the depositions of the three firefighters and and possibly submitting reports / affidavits of expert witnesses. Judge Dlott noted that the plaintiffs may have a difficult time proving their "wrongful death" claim. Under Ohio law they must prove that the firefighters' decision to return to the station constituted "wanton misconduct." The Ohio Supreme Court has defined "wanton misconduct" as the failure to exercise "any care whatsoever" and "mere negligence is not converted into wanton misconduct unless the evidence establishes a disposition to perversity on the part of the tortfeasor."

Hopefully, after pre-trial discovery, Judge Delott will then grant summary judgment for the firefighters and they will never need to stand trail. Alternatively, the City of Cincinnati may decide to enter into a settlement with the plaintiffs.

LARRY BENNETT, a Contributing Editor, is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, that is used by the National Fire Academy (NFA) in its distant learning course, Political and Legal Foundations of Fire Protection. The NFA appointed Larry as their Subject Matter Expert to update the curriculum in this course. and he serves on the NFPA 1500 Fire Service Occupational Safety and Health Committee. Larry writes a free Fire & EMS and Safety Law newsletter which you can sign up online to receive free. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page To read Larry's complete biography and view his archived articles, click here. You can reach Larry by e-mail at