                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 07a0186p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                      X
                                 Plaintiff-Appellee, -
 STEPHANIE PEETE,
                                                       -
                                                       -
                                                       -
                                                           No. 06-5321
           v.
                                                       ,
                                                        >
 METROPOLITAN GOVERNMENT OF NASHVILLE AND              -
                                                       -
                                                       -
 DAVIDSON COUNTY; NASHVILLE TENNESSEE FIRE

                                       Defendants, -
 DEPARTMENT,

                                                       -
                                                       -
                                                       -
 MICHAEL TURNER, Firefighter Captain; MALCOLM
 ARRINGTON, Firefighter; WILLIAM KEVIN WEST,           -
                                                       -
                                                       -
 Paramedic; DAVID KINGSBURY, Paramedic; LLOYD

                            Defendants-Appellants. -
 CRAWFORD, EMT,
                                                       -
                                                       -
                                                      N
                        Appeal from the United States District Court
                     for the Middle District of Tennessee at Nashville.
                   No. 05-00552—William J. Haynes, Jr., District Judge.
                                          Argued: April 17, 2007
                                    Decided and Filed: May 22, 2007
            Before: MERRITT and GRIFFIN, Circuit Judges; LAWSON, District Judge.*
                                   _________________
                                                 COUNSEL
ARGUED: Allison L. Bussell, METROPOLITAN DEPARTMENT OF LAW, Nashville,
Tennessee, for Appellants. Dennis J. DeCaro, KUPETS & DECARO, Chicago, Illinois, for
Appellee. ON BRIEF: Allison L. Bussell, Lora Barkenbus Fox, Jennifer L. Bozeman,
METROPOLITAN DEPARTMENT OF LAW, Nashville, Tennessee, for Appellants. Dennis J.
DeCaro, KUPETS & DECARO, Chicago, Illinois, Culwell Edwards Ward, WARD,
DERRYBERRY & THOMPSON, Nashville, Tennessee, for Appellee.




        *
         The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                        1
No. 06-5321           Peete v. Metro Govt. of Nashville, et al.                                   Page 2


                                        _________________
                                            OPINION
                                        _________________
        MERRITT, Circuit Judge. In this wrongful death action, five individual defendants were
sued in their individual capacities — all of whom were firefighters, paramedics and emergency
medical technicians employed by the Metropolitan Government of Nashville, Tennessee — and they
now appeal the district court’s order denying their motion to dismiss the plaintiff’s § 1983 complaint
on the basis of “qualified immunity.” We review the order on the pleadings de novo. The plaintiff,
who is decedent’s next of kin, alleges that the defendants violated decedent Frederico Becerra, Jr.’s
Fourth Amendment rights in the course of administering requested medical aid during an ongoing
epileptic seizure. Specifically, the plaintiff claims that defendants, who were answering a 911 call,
used excessive force in restraining Becerra and refused him appropriate medical attention when he
was in an unconscious epileptic state. Becerra had, according to the complaint, “fallen next to the
home’s refrigerator” where his “grandmother was unable to lift her grandson to his feet.”
        We find no case authority holding that paramedics answering a 911 emergency request for
help engage in a Fourth Amendment “seizure” of the person when restraining the person while
trying to render aid. Hence there is no “clearly established law” creating federal liability for a
constitutional tort under these circumstances. The district court, therefore, erred in failing to grant
qualified immunity to the paramedics.
       We analyze claims of qualified immunity in these circumstances using a three-prong test:
       First, we determine whether, based upon the applicable law, the facts viewed in the
       light most favorable to the plaintiff show that a constitutional violation has occurred.
       Second, we consider whether the violation involved a clearly established
       constitutional right of which a reasonable person would have known.
       Third, we determined whether the plaintiff has offered sufficient evidence to indicate
       that what the official allegedly did was objectively unreasonable in light of the
       clearly established constitutional rights.
Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003). The plaintiff’s case fails under all three of these
prongs.
                                I. Facts As Alleged in Complaint
        On July 15, 2004, at approximately 9:00 p.m., decedent Becerra’s grandmother called 911
requesting medical attention for Becerra, who she reported was experiencing an epileptic seizure.
The defendants responded to the call and briefly discussed Becerra’s history of epilepsy with his
grandmother. They then restrained Becerra “by using their bodies to apply weight and pressure to
[Becerra’s] head, neck, shoulders, arms, torso and legs in an attempt to prevent the decedent from
moving.” J.A. 10. In a further effort to restrain Becerra and protect themselves, they tied his hands
and ankles behind his back and continued to apply pressure to Becerra while he was in a prone
position. Defendants did not take any precautions to ensure that Becerra had a clear passage to
breathe, and shortly after being restrained in this matter, Becerra died. There is no claim that
defendants, or any of them, acted purposely to harm Becerra, but the claim is that they acted
negligently or with “deliberate indifference.”
        The plaintiff, Becerra’s personal representative, has brought a seven-count complaint
alleging that defendants violated Becerra’s Fourth and Fourteenth Amendment rights. Four of these
No. 06-5321           Peete v. Metro Govt. of Nashville, et al.                                 Page 3


counts are now before us: (1) exercising excessive force; (2) failing to provide medical attention;
(3) conspiring to deprive Becerra of his Constitutional rights; and (4) failing to protect Becerra from
the other emergency actions. The defendants filed a Rule 12(b)(6) motion to dismiss the claims on
the grounds that the plaintiff had failed to state a claim and alternatively, that they were entitled to
qualified immunity. In a brief order, the District Court denied defendant’s motions to dismiss
holding that the plaintiff had stated a viable claim and that the defendants are not entitled to
qualified immunity because the rights at issue “are clearly established.” J.A. 23-24. We do not
agree.
                                      II. Qualified Immunity
         In the vast majority of these Fourth Amendment cases, courts analyze the conduct of police
officers toward persons they have arrested or otherwise detained, but courts have held that the
protection extends to actions by other government officials. E.g., Michigan v. Tyler, 436 U.S. 499,
506 (1978) (holding that the Fourth Amendment applied to firefighters investigating the cause of
a fire); Doe v. Heck, 327 F.3d 492, 510 (7th Cir. 2003) (applying the Fourth Amendment to a child
welfare caseworker who, accompanied by a police officer, removed a child from class to question
him about circumstances in his home). But there are no cases applying the Fourth Amendment to
paramedics coming to the aid of an unconscious individual as a result of a 911 call by a family
member. The result must turn on the specific purpose and the particular nature of the conduct
alleged in the complaint. The question whether a seizure has occurred within the meaning of the
Fourth Amendment is an objective one. Brigham City, Utah v. Stuart, 126 S. Ct. 1943, 1948 (2006).
The various definitions of “seizure” contained in the precedents connote an intentional interference
with a person’s liberty by physical force or a show of authority that would cause a reasonable person
consciously to submit. See Scott v. Harris, 127 S. Ct. 1769, 1776 (2007) (holding that “a Fourth
Amendment seizure [occurs] . . . when there is a governmental termination of freedom of movement
through means intentionally applied”) (citing Brower v. County of Inyo, 489 U.S. 593, 596-597
(1989)); United States v. Jacobsen, 466 U.S. 109, 114 n.5 (1984) (referencing the Court’s “oft-
repeated definition of the ‘seizure’ of a person within the meaning of the Fourth Amendment —
meaningful interference, however brief, with an individual’s freedom of movement”); Bennett v.
City of Eastpointe, 410 F.3d 810, 833 (6th Cir. 2005) (“This rationale comports with California v.
Hodari D., 499 U.S. 621, 626 (1991), which held that a Fourth Amendment seizure occurs when
there is (1) a show of authority, and (2) submission to a show of authority.”); United States v.
Richardson, 385 F.3d 625, 629 (6th Cir. 2004) (holding that an “[u]nlawful seizure occurs when an
officer, without reasonable suspicion, ‘by means of physical force or show of authority . . . in some
way restrain[s] the liberty of a citizen.’ Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). One’s liberty
is restrained when a reasonable person would not feel free to walk away and ignore the officer’s
request”). The plaintiff did not allege any of these components in her complaint, nor is it likely that
she could since Becerra was unconscious at the time of his encounter with the defendants and could
not perceive any restraint on his liberty or otherwise feel compelled to submit to a governmental
show of force. Finally, where the purpose is to render solicited aid in an emergency rather than to
enforce the law, punish, deter, or incarcerate, there is no federal case authority creating a
constitutional liability for the negligence, deliberate indifference, and incompetence alleged in the
instant case. The Eighth Amendment “Cruel and Unusual Punishment” Clause raising a “deliberate
indifference” standard does not apply here because Becerra was not incarcerated and the purpose
of the alleged wrong was not punishment.
        Plaintiff cites a recent Second Circuit case where a non-verbal individual who could
communicate by blinking his eyes and using a computer was brought to the hospital by emergency
medical workers even though he communicated that he did not want to receive any further treatment.
Green v. City of New York, 465 F.3d 65 (2d Cir. 2006). In the course of transporting the wheelchair-
bound plaintiff, who suffered from Lou Gehrig’s disease, to the hospital, the paramedics allegedly
inflicted numerous bruises and lacerations on the victim by callously transporting him down several
No. 06-5321          Peete v. Metro Govt. of Nashville, et al.                                  Page 4


flights of stairs in his apartment building. The Second Circuit held that this conduct constituted a
clearly established “seizure” of the person under the Fourth Amendment, i.e.: for a government
official knowingly to transport a competent adult for medical treatment over his announced objection
unless the person was a danger to himself or others. Thus, the Court denied the motion for qualified
immunity and remanded the case for trial on whether or not the force used to seize and transport the
plaintiff was unreasonable. Unlike the instant case, the individual in the Green case was conscious
and competent and objected to being taken into custody.
        The conclusion reached by the Second Circuit is consistent with the case law from this
Circuit. In Champion v. Outlook Nashville, this Court held that the Fourth Amendment rights of
Champion, a non-verbal, autistic adult, were violated and the defendant police officers were not
entitled to qualified immunity where the officers restrained the man in a manner similar to the
restraint techniques used by paramedics in this case. 380 F.3d 893 (6th Cir. 2004). The officers
were summoned to a shopping center parking lot by the man’s caregiver after he became agitated
and violent with her. The first police officer on the scene used pepper spray to subdue the man when
he would not respond to her commands that he stop approaching her. When a second officer arrived,
the two officers attempted to arrest Champion and take him into custody in a nearby store.
        A struggle ensued and Champion was eventually tackled and handcuffed after a third officer
arrived on the scene. The three officers also bound Champion’s ankles with a “hobble device” to
prevent him from kicking them. During and after the handcuffing and “hobbling,” Champion was
on the ground in a prone position and the officers applied their body weight to his back to control
his movements. After several minutes, Champion began to vomit. He died shortly thereafter. The
Court held that Champion’s arrest and restraint by police constituted a clearly established
unreasonable seizure under the Fourth Amendment and denied the police officers’ argument that
they were entitled to qualified immunity. Id. at 901-902.
        The Champion case does not support the plaintiff’s argument that paramedics violated
Becerra’s Fourth Amendment rights. The paramedics did not unreasonably seize him for the
purpose of interfering with his liberty. They responded to Becerra’s grandmother’s call that he was
experiencing an epileptic seizure and needed medical attention. They were not acting to enforce the
law, deter or incarcerate. They are unlike the police officers in Champion who handcuffed and
shackled the plaintiff in order to arrest and incapacitate him. The cases are not the same because
the paramedics acted in order provide medical aid to Becerra. They were attempting to help him,
although they badly botched the job according to the complaint.
        Since Becerra was neither communicative, nor conscious and the paramedics were
attempting to render aid, neither Green nor Champion applies. The plaintiff does not allege that
either Becerra or his grandmother asked the paramedics to refrain from treating him. The plaintiff’s
excessive force claim thus looks like a medical malpractice claim rather than a Fourth Amendment
or Due Process violation. Assuming arguendo that the restraint techniques used by the EMT’s were
excessive or medically unreasonable, the plaintiff may be entitled to recovery under the state law
of negligence, but improper medical treatment by a government employee, standing alone, does not
violate the Fourth or Fourteenth Amendment. As the Supreme Court observed in DeShaney v.
Winnebago County Department of Social Services, 489 U.S. 189, 202 (1989):
              It may well be that, by voluntarily undertaking to protect Joshua against a
       danger it concededly played no part in creating, the State acquired a duty under state
       tort law to provide him with adequate protection against that danger. See
       Restatement (Second) of Torts § 323 (1965) (one who undertakes to render services
       to another may in some circumstances be held liable for doing so in a negligent
       fashion); see generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and
       Keeton on the Law of Torts § 56 (5th ed. 1984) (discussing “special relationships”
No. 06-5321           Peete v. Metro Govt. of Nashville, et al.                                 Page 5


       which give rise to affirmative duties to act under the common law of tort). But the
       claim here is based on the Due Process clause of the fourteenth Amendment, which,
       as we have said many times, does not transform every tort committed by a state actor
       into a constitutional violation. See Daniels v. Williams, 474 U.S., at 335-336;
       Parratt v. Taylor, 451 U.S. at 544; Martinez v. California, 444 U.S. 277, 285 (1980):
       Baker v. McCollan, 443 U.S. 137, 146 (1979); Paul v. Davis, 424 U.S. 693, 701
       (1976). A State may, through its courts and legislatures, impose such affirmative
       duties of care and protection upon its agents as it wishes.
        The plaintiff also alleges that the defendants unconstitutionally failed to render medical
treatment to Becerra. The complaint argues that this failure violated the Fourth Amendment
protection against unreasonable seizure and the Fourteenth Amendment guarantee of substantive due
process. J.A. 13-14.
        Generally, “it is not a constitutional violation for a state actor to render incompetent medical
advice or fail to rescue those in need.” Jackson v. Schutlz, 429 F.3d 586, 590 (6th Cir. 2005) (citing
DeShaney v. Winnebago County Dep’t of Soc. Services, 489 U.S. 189, 196 (1989)). There are two
exceptions to this rule, instances where the state is obligated to aid or protect an individual from
further danger: 1) the custody exception and 2) the state created danger exception. Jackson, 429
F.3d at 590-91.
       The custody exception imposes on state officials a “constitutional duty to provide adequate
medical care to incarcerated prisoners . . . and those under similar restraint of personal liberty.” Id.
The court in Jackson held that a constitutional duty was not triggered where paramedics placed an
individual wounded by a gunshot into their ambulance and began transporting him to the hospital.
The District Court had held that moving an unconscious patient into the ambulance constituted
custody, but we held that “the concept of custody does not extend this far.” Id. The facts in the
present case similarly fail to allege that Becerra was taken into custody. He was restrained while
he was unconscious, and the defendants’ actions were undertaken in an effort to render medical
treatment. This is easily distinguished from the archetypical custody exception case where jail or
prison officials fail to provide medical treatment to an incarcerated individual.
        The state-created danger exception applies where the state causes or greatly increases the risk
of harm to its citizens without due process of law through its own affirmative acts. Kallstrom v. City
of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998). To establish liability under this theory, a
plaintiff must show: (1) affirmative acts by the state that “create or increase the risk that an
individual will be exposed to private acts of violence;” (2) that the state’s actions placed the victim
“specifically at risk, as distinguished from a risk that affects the public at large;” and (3) that the
state knew or “clearly should have known that its actions specifically endangered an individual.”
Id. This exception does not apply here because the defendant’s actions did not expose Becerra to
private acts of violence as required by the first prong. We see no basis at all in this case on which
plaintiff can recover for a federal constitutional tort, and accordingly we reverse the judgment below
and remand with instructions to grant qualified immunity to the individual defendants and for other
relief not inconsistent with this opinion.
