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Thomas v. City of Harrisburg, 2023 U.S. App. LEXIS 32207 (3d Cir. December 6, 2023) (Roth, C.J.).

Sherelle Thomas sued the City of Harrisburg; PrimeCare Medical, Inc.; and several individual law enforcement officers (the Officers) on behalf of her decedent relative, alleging that defendants failed both to render medical care and to intervene to prevent a violation of the right to medical care. The Officers moved to dismiss on grounds of qualified immunity. The District Court denied the motion. The court rejected the Officers’ claims of qualified immunity because it found that Sherelle Thomas alleged sufficient facts to state her claims and both rights were clearly established at the time of the violations. The Officers appealed, limited to the issue of qualified immunity. Because the District Court correctly denied the Officers’ claim of qualified immunity regarding their failure to render medical care claim, we will affirm on that issue. We conclude, however, that the District Court ruled incorrectly when it recognized a claim of failure to intervene. Because neither our Court nor the Supreme Court have recognized the right to intervene in the context of the rendering of medical care, qualified immunity for the Officers on this claim is appropriate and we will remand this claim to the District Court with instructions to dismiss it as to the Officers.

During Thomas’s detention, four additional officers (Corporal Scott Johnsen and Officers Adrienne Salazar, Travis Banning, and Brian Carriere) arrived at the scene. Probation Officer Kinsinger and Officer Foose informed each officer that they believed that Thomas had ingested cocaine. Officer Salazar independently arrived at the same conclusion after observing a white powdery substance covering Thomas’s lips, and informed Thomas that ingesting cocaine could have an “ill effect” on Thomas’s health. Corporal Johnsen “acknowledged the seriousness of ingesting cocaine by warning . . . Thomas that he could possibly die from ingesting drugs.” Officer Banning also observed a “large amount of white residue around and on . . . Thomas’ lips,” and did not find any evidence of candy cigarettes. Based on their observations, the Officers filed police reports indicating Thomas’s cocaine ingestion, and Officer Foose prepared and signed an Affidavit of Probable Cause noting that she had observed Thomas consume “crack cocaine in order to conceal it from police.”

The Officers jointly determined that Thomas should be transferred to Dauphin County Booking Center at the Dauphin County Prison for detention and processing. Dauphin County contracts with PrimeCare to provide limited medical care to individuals at Dauphin County Prison. PrimeCare does not have hospital features such as x-ray or CT machines but instead transfers individuals to a nearby hospital for testing and treatment. In addition, Harrisburg Police Department policy dictates that officers take arrestees to the hospital if the arrestees have “consumed illegal narcotics in a way that could jeopardize their health and welfare.” Despite this policy and the observations noted above, the Officers did not take Thomas to the hospital. Instead, Officer Carriere arrested Thomas and transported him to Dauphin County Booking Center. En route, Thomas told Officer Carriere that he was hot despite an outdoor temperature of 46 degrees. Officer Carriere opened the window.

Upon arrival at the Dauphin County Booking Center, Officer Carriere informed prison officials and medical staff there that Thomas “may have swallowed crack cocaine.” The officials and PrimeCare staff noted that Thomas had white powder covering his lips, but they also failed to send Thomas to a hospital. Instead, the officials placed Thomas in a cell without any medical care or observation. Less than two hours after Thomas’s arrest, surveillance video showed Thomas falling backwards onto the floor, hitting his head, and suffering cardiac arrest. Only then did officials transport Thomas to UPMC Pinnacle Harrisburg Hospital, where he died three days later. His cause of death was “cocaine and fentanyl toxicity.”

These facts distinguish this case from those the Officers cite in opposition to a holding that there was a constitutional violation. Most of these cases involved officers who demonstrated no actual belief of narcotic ingestion or officers who failed to draw an inference of substantial risk. Because there are sufficient allegations here from which to find deliberate indifference, as well as a serious medical need, Sherelle Thomas has plausibly alleged a violation of the right to medical care.

Although the Officers are correct that the right must be defined beyond a high level of generality, there need not be “a case directly on point for a right to be clearly established.” “‘A public official,’ after all, ‘does not get the benefit of “one liability-free violation” simply because the circumstance of his case is not identical to that of a prior case.'” Instead, the law requires only that the right “is sufficiently clear that a reasonable official would understand that what he is doing violates that right.” That standard is met when a violation is “so obvious” it becomes likewise evident that a clearly established right is in play, “even in the absence of closely analogous precedent.” As a result, qualified immunity is not appropriate when the case in question presents “extreme circumstances” to which “a general constitutional rule already identified in the decisional law may apply with obvious clarity.” That is the case before us.

As applied to the facts of this case, we hold therefore that when an officer is aware of the oral ingestion of narcotics by an arrestee under circumstances suggesting the amount consumed was sufficiently large that it posed a substantial risk to health or a risk of death, that officer must take reasonable steps to render medical care.

For the above reasons we will affirm the District Court’s denial [sic] the Officers’ claims for qualified immunity.

Because there is no clearly established right to intervention in the medical context, we need not address the Officers’ contention that Sherelle Thomas has failed to plausibly allege a violation of such a right.

Because there is not a clearly established right to intervention to prevent a violation of the right to medical care, the Officers are entitled to qualified immunity as to Sherelle Thomas’s failure to intervene claim.