There is no constitutional right to adequate medical care
The latest egregious application of qualified immunity
As I'm sure you know if you've been reading Hell World for a while there is perhaps nothing that gets up my ass hole so much as the practice of qualified immunity. I've written about it numerous times over the years here and here and here and here and here.
Quick look at what the U.S. would look like the day after qualified immunity is abolished:
To repeat myself briefly: Qualified immunity is the legal magic spell which makes it nearly impossible to hold state employees (usually police officers) accountable for the harm they cause citizens unless there is an absurdly specific 1:1 established example of it in the books as being unconstitutional already. It essentially allows cops and other government agents like prison guards – or in the case we're about to talk about EMTs – to do whatever they want to you and get away with it.
One of the more glaring illustrations of how it works that I often come back to is when cops in Texas in 2017 tased a suicidal man who had doused himself in gasoline. You can probably guess what happened next. Besides them not getting in trouble I mean.
The courts on the other hand ruled that there was no expectation that a reasonable officer could have predicted what would have happened and more importantly no clearly established legal precedent regarding such a scenario.
Every time I try to explain QI I have to keep doubling back to make sure I'm saying it right. Partly because I'm stupid but also because when you describe how it works the logic center of your brain keeps fighting back against what you're saying. Like the body trying to reject a parasite.
It's the kind of legal system you would design if you not only wanted to punish citizens but also do so in such an absurd and maddening way that it seemed like you were doing it on purpose just to see how much clever shit you could get away with. Imagine if you will a group of bored demons in Hell trying to one up each other with how creative they could be in their torture artistry. Wielding their scalpels like an avant-garde jazz man blowing his horn.
I know that sounds like a stretch but that creativity – or uniqueness rather – is at the heart of the issue here. As long as the state has harmed one of us in a completely novel and heretofore untried way then they are likely to be shielded from liability by the courts for the very reason that no one has done anything like this before.
The latest egregious application of qualified immunity comes in a ruling from the Sixth Circuit court of appeals (upholding a circuit court's decision.) The estate of a woman named Timesha Beauchamp sued first responders and the city of Southfield, Michigan claiming that they had violated her constitutional rights by failing to provide adequate medical aid in the period leading up to her death. That failure in fact led to her death they argued.
When you read the details of the case it certainly seems like any reasonable person would agree that that is indeed what happened but this is not reason we're dealing with here this is the U.S. legal system.
"Generally, there is no constitutional right to adequate medical care for individuals who are not in the custody of the state," the court wrote in part.
Qualified immunity isn't in the constitution either for what it's worth.
In August of 2020 Erica Lattimore found her daughter Timesha Beauchamp unresponsive in her bedroom. The mother attempted to give Beauchamp oxygen but it didn't help so she called 911 as well as some family members to come to the house. EMTs arrived and attempted to resuscitate Beauchamp for roughly 20-30 minutes but were unsuccessful and declared her dead.
They called a doctor to ask for permission to stop trying to save her as is procedure but they had stopped five minutes before calling.
The thing is the family didn't believe she was actually dead. Her cardiac monitor was showing signs of life and besides they said they could literally see her chest moving up and down. The EMTs examined her again when they asked but dismissed the signs of life as after effects of medication she had been taking.
Then as they were leaving police officers that had since arrived told the EMTs that the family had seen her gasp for air. They came back one more time to check and assured the family that she was in fact gone.
(Beauchamp was a Black woman who had cerebral palsy which is something that you certainly can't ignore as a factor in their indifference to her life).
When the funeral home worker arrived later to retrieve the body he asked Lattimore if she was sure her daughter was dead because he observed her chest moving. Lattimore told him what the EMTs had said about the medication's post-mortem effects and the guy put her into a bodybag and went about his grim business.
Not long after an embalmer unzipped the bodybag and found Beauchamp "gasping for air with her eyes open and her chest moving up and down."
They called 911 and another set of first responders arrived and took Beauchamp to the hospital where doctors determined she was alive but had suffered an anoxic brain injury. Beauchamp lived more six more weeks on a ventilator in a vegetative state until she died.
In their dismissal of the case brought against the first responders and the city the court likened the situation to a 2010 case called Willis v. Charter Twp. of Emmett. In that one a man who had flipped over his truck was declared dead by paramedics because he had no pulse despite witnesses saying they could see him still breathing.
The court writes:
Instead, they placed a sheet over the cab of the pickup, which was eventually attached to a tow truck so that the driver’s body could be removed. At that point, someone noticed that the driver was still breathing, and he was immediately taken to the hospital, where he died shortly afterward. We held that these facts did not support a constitutional claim based on a state-created danger because the firefighters “did not affirmatively act to expose [the driver] to private acts of violence.” In doing so, we rejected the argument that “the extended period of time during which [the driver] was left untreated and the jostling of the cab of his pickup when it was secured for towing” “amount to private acts of violence.”
Even when they don't do something first responders are afforded the passive voice.
In other words what they are saying there is the first responders' inaction didn't lead to the man's death because he was already well on his way down that path before they arrived and did not bother to try to save him. You might as well hold a butterfly flapping its wing somewhere across the globe liable for someone's death they argued. (More or less).
Willis held that leaving an injured driver untreated based on the mistaken belief that the driver was dead, which in turn led to the “jostling” of the pickup truck to secure it for towing so that responders could extricate the presumed-dead body from the wreckage, was insufficient to state a claim under the state-created danger doctrine because the decedent was not exposed to a private act of violence. So it is hard to see how it could be “clearly established” that the First Responders exposed Beauchamp to a private act of violence when they mistakenly believed she was dead and left her in her family’s care to be processed for routine funeral proceedings, which included the Funeral Home employee’s act of putting Beauchamp’s presumed-dead body into a body bag to transport her to a funeral home.
I like that little bit of plausible deniability they stick in there about the private funeral home employee. Who is to say if he didn't harm the woman right?
Beauchamp's estate had previously argued in the lower court in June that the EMTs prevented the family from rendering aid to save her life but the judges in that case said they didn't really do that they just told the family that trying to save her would be futile. That's not the same as physically stopping them from helping they said.
From the Courthouse News Service:
U.S. Circuit Judge Eric Murphy, a Donald Trump appointee, pointed out the Sixth Circuit's case law allows for the application of qualified immunity except in cases where state actors physically prevent private parties from rendering medical treatment.
"[The EMTs] just provided statements that led family members to believe aid would be futile," he told [the Beauchamp estate's lawyer].
"You've got egregious conduct," the attorney responded. "There are allegations here that they ... got permission to discontinue aid [even though] they had information there were electrical impulses, that there was a heartbeat."
U.S. Circuit Judge Joan Larsen, another Trump appointee, echoed her colleague's sentiments.
"Don't we have to be very specific for a 'clearly established' [constitutional right]?" She asked. "There was no show of authority, it was just misleading information."
The appeals court agreed with that. The city gave it a pretty good shot they said. They tried for a little while. What else do you expect them to do? And besides the family was right there. No one was physically stopping them from saving her life on their own.
All of that is bad enough but this here is the even more insidious part about qualified immunity. While the court denied that there was any previously established constitutional right violated here they also – as they so often do in these cases – declined to say whether this scenario should establish a right going forward. Good luck out there everybody. Good luck to us all.
The bit about trying to save someone's life reminds me of a passage from ACWF:
I think the idea of all of this living is to accumulate enough loving and having been loved experience points that you can cash them in in one fell swoop at the end for an ameliorating effect on the descent but the prospect of that never brings me any comfort because it’s all erased on the other side of it anyway. A new ledger in which your balance isn’t zero it’s nothing. I guess there isn’t even a ledger anymore actually.
People say you can’t take your money with you when you die but you can’t take your love with you either.
They could wheel your deathbed out to the middle of a football stadium with the tubes and machines and nurses and everything on the 50-yard line and the stands could be full with everyone cheering and crying and you would still be down there thinking well I suppose it could be worse but what good is all this going to do me a couple hours from now?
If all this death of late has made nothing else clear to me it is the reality that you can get sick in such and such a way that there is nothing to be done about it even if you are under the care of a doctor that really or more likely mostly doesn’t want you to die. They are very busy these doctors.
I know that seems like an obvious thing to realize and I am sure I always already knew it but it’s not the type of thing you want to walk around being aware of all the time so when you do think of it again it hits afresh like a tossed punch.
If you want an idea of the future and also the past and the present picture a fist punching in a face but drain any sort of larger meaning from it. A fist without metaphor. Every day it’s just guys getting punched in the face. Queuing up like in a depression-era bread line at the face-punching factory.
You think most days that when something bad happens they’re going to marshal the heavens and earth for your benefit like you’re the governor or something but that’s awfully naive. It seems more likely at most they’ll give it a pretty good go. Like when your car won’t start you still try to turn it over a few times to be sure then maybe you check the oil and one other thing you know how to do and then are like well fuck I’m out of ideas here.
Yesterday was our wedding anniversary which I spent like I have the last four of them thinking all day about suicide. Now hold on a minute I say that because it's the date of David Berman's passing. Honestly both of us forgot our anniversary was coming up until the night before when my mother in law said something about it because we mostly really consider our first time smooching at Bukowski Tavern in Boston more years ago than seems possible as our real anniversary. I picked M. up from her job at the beloved and now gone taco store in the Fenway around the corner from the beloved but now gone venue I used to play shows at and wait... maybe we went over to the Squealing Pig in Mission Hill that night? That's also gone now too in any case.
I shared a couple pages from ACWF on Twitter yesterday that concern Berman and it really seemed to resonate with people.
I shared these in here last year and/or the year before but here's the comic and here's the scoreboard in question.
Gotta go! Check out the new MJ Lenderman.