                                    The Attorne,y General of Texas

JIM MATTOX                                          Algust 22, 1986
Attorney General



Supreme Court Building            Honorable 0. Ii."Ike" Harris           Opinion No. JM-538
P. 0. BOX 12548
Austin, TX. 78711. 2548
                                  Chairman
512/475-2501                      Economic Development Committee         Rt?: Duties and liabilities of
Telex 9101874.1367                Texas State Senate                     a police officer who is also a
Telecopier   512/475-0266         P. 0. Box 12068, Caritol Station       firefighter emergency .medical
                                  Austin. Texas   78711                  technician
714 Jackson, Suite 700
Dallas. TX. 75202.4508            Dear Senator Harris:
21417428944
                                       You request an opinion about the duties and responsibilities of a
                                  public safety offics::who primarily works as a firefighter emergency
4824 Alberta Ave.. Suite 160
El Paso, TX. 799052793
                                  medical technician md whose duties also include working as a police
91515353484                       officer. You wish to know how such an officer should respond in an
                                  emergency, that is, if a public safety officer, while working as a
                                  police officer, must,use deadly force and critically injures a person,
                                  whether the offiwr      is legally obligated in his capacity as
                                  firefighter emergency medical technician to treat the injured person
                                  and try to save his life. -See V.T.C.S. art. 1269m. 552, 5.

806 Broadway, Suite 312                Section 9.51 oE the Penal Code sets out the circumstances under
Lubbock, TX. 79401.3479           which a peace officw: may use force or deadly force to make an arrest
8061747-5238
                                  or prevent escape a:Iteran arrest. See also Penal Code 999.31, 9.32,
                                  9.34, 9.42, 9.43. rhe peace officer may use that degree of force or
4309 N. Tenth. Suite 6            deadly force which ze reasonably believes is immediately necessary to
McAllen, TX. i8501-1685           make the arrest 01' prevent escape but he is not allowed to use
5121682.4547                      excessive force. Peal Code 59.51; Code Grin. Proc. art. 6.06; Ford
                                  v. State, 538 S.W.2e.l
                                                       633 (Tex. Grim. App. 1976).
2Oil Main Plaza, Suite 400
San Antonio, TX. 78205-2797            Once the 0ffice.ecritically injures someone, that person would,
51212254191                       in the usual case, kle unable to offer any more resistance. At that
                                  point, there is no conflict between a peace officer's right to use
An Equal Opportunity/
                                  force to effect an arrest, and any duty a fireman emergency medical
Affirmative   Action   Employer   technician may have ::oadminister first aid and save the individual's
                                  life.

                                       Moreover, at Least one court has held that policemen have a duty
                                  to render first aid to a person against whom he used force in
                                  effecting an arrest,. In McQurter v. City of Atlanta, 572 F. Supp.
                                  1401 (N.D. Ga. 1983). the plaintiff sued individual policemen, their
                                  super&sors and empil;yer&der section 1983, 42 U.S.C,, alleging that
                                  the police used excessive force in arresting her husband, resulting in




                                                              p. 2476
Iionorable0. H. "Ike" Harris -'Page 2   (JM-538)




his death. The court found that the force was excessive and violated
the decedent's constitutiotal rights. The failure of the police
officers to provide the acrestee medical attention after he was
critically injured evidences1 deliberate indifference to his serious
medical needs and therefore ialsoviolated his constitutional rights.
See Estelle v. Gamble, 429 U.S. 97 (1976). The court in Mc&rter
-
stated as follows:

            All of the officers had basic first aid training.
         Prevailing standards of police work require that the
         officer on the scene render first aid to any injured
         subject and obtain emergency professionals to assist
         in more aggravated cases.

McQurter v. City of Atlanta, 572 F. Supp. at 1418 (dicta).

     The reasoning of McQurl:erwas followed in Smith v. Dooley, 591 F.
S"PP. 1157 (W.D. La. 1984), aff'd mem. 778 F.2d 788 (5th Cir. 1985).
This case arose out of the use of excessive force against a jail
inmate who resisted being transported to the state penitentiary. The
peace officers who used force against the inmate failed to get medical
attention for him. The courf stated as follows:

          Both the McQurtel, case and the Dailey v. Byrnes
          case 1605 F.2d 85& (5th Cir. 1979)l stand for the
          proposition that police officials have a duty to
          secure medical at,tention for an injured detainee
          or inmate, even %,hen the injuries result from the
          justified applicat:Lonof force by the officers.

Smith v. Dooley, 591 F. Supp. 1157, 1170 (W.D. La. 1984) aff'd mem.
778 F.Zd 788 (5th Cir. 1985) (dicta).

     In both McQurter and ;+th v. Dooley the courts found that peace
officers had used excessive force against an individual. They also
determined that on the facts of each case the officers' failure to
provide medical attention to that person constituted deliberate
indifference to his serious medical needs. See Estelle v. Gamble, 429
U.S. 97 (1976). The twcl cases state InTroad         terms the peace
officer's duty to provide cr secure medical aid, and they do not limit
the duty to cases where failure to do so constitutes deliberate
indifference to the arrestfe's serious medical needs. A peace officer
who uses deadly force agair.stan individual and critically injures him
has a duty as a peace offic.erto provide or secure medical aid for him
and attempt to save his liie. Failure to provide medical aid in such
a case would as a general matter constitute deliberate indifference to
a serious medical need. In addition, the cases suggest that this duty
exists even where the injury is not critical or life-threatening.




                            p. 2477
Honorable 0. H. "Ike" Harris - Page 3   (JM-538)




     You also ask whether the administration of emergency aid to the
injured person would "legally interfere with the crime scene." You
have not identified any ststutes which you wish us to consider. A
prohibition against tamperir,gwith or fabricating physical evidence is
found in,section 37.09 of tt,ePenal Code, which provides in part:

            (a) A person commits an offense if, knowing
         than an investigation or official proceeding is
         pending or in proE;ress,he:

                 (1) --
                      altem,  destroys, or conceals any
            record, documnt,   or thing with intent to
            impair its ve&ry, legibility, or availability
            as evidence ir;the investigation or official
            proceeding; or

                  (2)  maker;,presents, or uses any record,
             document, or thing with knowledge of its
             falsity and with intent to affect the course or
             outcome of the investigation or official
             proceeding.

             . . . .

            (c) An offens@!under this section is a Class A
         misdemeanor. (Emphasis added).

Penal Code 537.09. We will assume without deciding that this statute
is relevant to the scenaricsabout which you inquire. One element of
this offense is that physi:al evidence be destroyed "with intent to
impair its merits, legibility or availability as evidence. . . ." A
peace officer who gives emergency medical aid to save an injured
person's life, ease suffming,      or otherwise limit the physical
consequences of the injury would not be guilty of this offense unless
he had the requisite intent to impair physical evidence. _  See Penal
Code 596.01, 6.02(a), 6.03(.1:1.

     You finally ask about the possibility that a grand jury would
view the administration of emergency aid as evidence that the officer
did not consider his lifs?.in danger. You ask us to anticipate
decisions that grand jurie:rmight make in the future. The question
cannot be answered in an attorney general opinion. Some of the
matters already discussed il this opinion may, however, be relevant to
grand jury deliberations cn the use of force by peace officers in
arresting an individual or preventing his escape. See Penal Code
99.51. Particularly notewc'rthyis the statement in Smxh v. Dooley,
591 F. Supp. 1157 (W.D. La. 1984) aff'd mem. 778 F.2d 788 (5th Cir.
1985) that




                                 P. 2478
Honorable 0. H. "Ike" Harris - Page 4       (JM-538)

                                                                              ,




          police officials have a duty to secure medical
          attention for an injured detainee or inmate, even
          when the injuries result from the justi=
          application of f&e    by the officers.    (dicta)
          (Emphasis added).

591 F. Supp. at 1170. The :Eacts of Smith v. Dooley and McQurtet v.
City of Atlanta, supra. show that an individual may be violent and
dangerous to others so that a peace officer may justifiably use some
force, and thereafter the ,m:resteemay be completely subdued and in
need of medical attention. IJe assume that grand jurors will evaluate
the facts of each incident :.naccordance with their oath to

          diligently inquire:into, and true presentment make,
          of all such mattms and things as shall be given
          you in charge. . I .

Code Grim. Proc. art. 19.34

                                SUMMARY

             A police offims, who must use deadly force
          against a person md injures him critically, has a
          duty under sectlo:>1983, 42 U.S.C., to provide or
          secure medical attention for that person, and                 --.
          attempt to save hl.si
                              life.




                                          JIM     MATTOX
                                          Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attome), General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garriscn
Assistant Attorney General




                                  p. 2479
