Court Rejects Unreasonable Use of Force Claim in Florida Ketamine Case

The US District Court for the Southern District of Florida has dismissed a civil rights suit brought against police and firefighters who physically subdued and administered ketamine to a man who was combative and acting irrationally. Jerald Lee Rogers filed the suit pro se naming the Fort Pierce Police Department, St. Lucie County Fire Rescue, and two police.

As explained in the decision:

• On November 29, 2022, Femminello, an officer for the City of Fort Pierce Police Department, responded to a call from dispatch to the corner of Avenue D and North 13th Street in Fort Pierce, Florida, pursuant to a request for assistance from St. Lucie County Fire Rescue in dealing with a combative rescue patient.
• Rescue advised Femminello that they had asked Plaintiff what was wrong and he reported that he was bleeding in his stomach, but that when they attempted to place Plaintiff on the stretcher, he began threatening physical violence if they touched him, at which Rescue called FPPD. Rescue advised Pulliam that Plaintiff had a history of psychiatric disorders and was known to be combative.
• Pulliam immediately recognized Plaintiff from an incident the evening prior, when Plaintiff was armed with a knife and acting aggressively towards patrons in a convenience store.
• Plaintiff “stated if they touched him, he would ‘wrap him up like a present, sign sealed and delivered’ and that he would ‘fuck them up'”.

The officers agreed that Rogers needed to be taken into custody pursuant to Florida’s Baker Act, which authorizes police to take certain people involuntarily to an appropriate facility for examination. The criteria as explained in Florida Statutes § 394.463 is as follows:

• (1) Criteria. A person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness and because of his or her mental illness:
• (a) 1. The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination;  or 2. The person is unable to determine for himself or herself whether examination is necessary;  and
• (b) 1. Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself;  such neglect or refusal poses a real and present threat of substantial harm to his or her well-being;  and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services;  or 2. There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.

A physical altercation ensured, culminating in a decision by Rescue personnel to administer ketamine. Once the Ketamine took effect, Rogers was taken into custody and transported to  safely to Lawnwood Hospital. Quoting from the decision:

• The attempt to secure and handcuff Plaintiff lasted roughly six minutes in total.
• Femminello did not observe any injuries to Plaintiff after he was restrained and placed on the stretcher.
• Femminello went to Lawnwood Hospital and saw Plaintiff after the incident; Femminello observed no injuries and took photographs of Plaintiff.
• No injuries were reported by St. Lucie County Fire Department.
• Femminello did not forcefully punch Plaintiff or otherwise administer any force beyond what was necessary and reasonable to restrain Plaintiff and keep him from hurting himself or others and did not witness any other officers doing so.
• Plaintiff was never prevented from breathing or speaking, and no officers choked him or knelt on his neck.
• Pulliam did hold Plaintiff’s head and face to the side in an effort to restrain Plaintiff and keep him pinned down to negate Plaintiff’s attempts to headbutt and bite the officers.
• On April 21, 2023, the Court received and docketed Plaintiff’s pro se Complaint against Femminello, Pulliam, Gil, and St. Lucie County EMS [sic] Officers, alleging excessive force under the Fourth Amendment and a First Amendment retaliation claim.
• After reviewing Defendants’ Statement of Material Facts and supporting evidentiary materials, the Court finds no genuine dispute as to whether Defendants used excessive force in violation of the Fourth Amendment, or whether Plaintiff’s rights were clearly established.
• The record shows that Defendants were on the scene responding to a medical emergency, specifically at Rescue’s request for assistance with Plaintiff, who was a “combative patient.”
• Plaintiff was experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others—is yes.
• The record demonstrates that when Defendants arrived on the scene in response to Rescue’s call, Plaintiff was lying in a field, having complained of internal bleeding but aggressively resisting Rescue’s efforts to assist.
• Gil and Pulliam were familiar with previous incidents where Plaintiff’s condition and conduct had necessitated his involuntary examination under the Baker Act.
• Rescue also informed the officers on the scene that Plaintiff had a history of psychiatric disorders.
• Under these circumstances, the record indicates that Plaintiff was experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others.
• Even if this Court were to find a Fourth Amendment violation, it does not find that Plaintiff’s rights were “clearly established.”
• “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”
• As analyzed above, no reasonable juror could conclude on these facts that Defendants’ actions were unconstitutional; the record indicates that Defendants used no more force than reasonably necessary under the circumstances.
• Accordingly, there is no jury question as to whether Defendants are entitled to qualified immunity, and summary judgment in their favor is appropriate.

Here is a copy of the decision: