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No Qualified Immunity for Cops in West Nile Virus Claim

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By Gabriella Khorasanee, JD on November 01, 2013 1:01 PM

We definitely hear about West Nile virus a lot, especially during the summer, but do you actually know what the symptoms are? Neither did some New Mexico police officers, who now face a civil action for the deprivation of an arrestee's rights, reports the Tri-City Herald.

The Traffic Stop and Arrest

Irving Marquez was pulled over by officers after they saw his car swerve and nearly hit a tractor-trailer. During the stop, Marquez was losing his balance, sweating profusely and had trouble addressing the officers. Though a breathalyzer test registered at zero, and a search of the car revealed nothing, Marquez failed a field sobriety test. The officers were confused, discussed the possibility of a medical condition, or the use of methamphetamine.

The officers arrested Marquez, and though detention center policy required that Marquez be medically screened, he was not, and booked into custody. Marquez's condition continued to deteriorate, and after two-and-a-half hours, a nurse took his vital signs and found he had a 104-degree fever. As a result, he was transported to the hospital and treated for West Nile Virus. Because of the delay in medical treatment, Marquez suffered permanent injuries.

Qualified Immunity Review

Marquez brought suit against the officers and officials alleging various state law injuries, and a deprivation of Fourteenth Amendment due process rights under 42 U.S.C. § 1983, for acting "deliberately indifferent" to his medical condition. The officers, arguing that they were protected by qualified immunity, moved for partial summary judgment. The district court denied the motion, and the officers appealed.

On appeal, the officers argued that they were not aware of Marquez's medical condition, and as a result, could not be "deliberately indifferent." However, before the court could even address that issue, the Tenth Circuit noted its limited jurisdiction in reviewing the denial of qualified immunity to public officials.

Quoting its own precedent, the Tenth Circuit stated that the denial of public officials' claims of qualified immunity are "'immediately appealable ... to the extent that it involves abstract issues of law' ... However we lack jurisdiction to review the district court's factual conclusions." Finding the all of the defendants' arguments related to "factual disputes," the Tenth Circuit affirmed the district court's decision.

While officers are not required to know all symptoms of all medical conditions, where as here, there is no indication of drug use, officers may be well advised to have defendants undergo medical screening. If not for the defendant's protection, then at least for their own.

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