Unidentified, undated - 38 of 48

    No. 18-684
In The

Supreme Court of tfje ®nfteb States;
Patti Ste v e n s-Ru ck er ,

A dm inistrato r  of the  Estate of Jason  W h ite , 
D eceased ,

Petitioner,
v.

Sergeant John Frenz (#5141) and 
Officer Dustin McKee (#2611),

Respondents.

On Petition for a Writ of Certiorari 
to the United States Court of Appeals 

for the Sixth Circuit

REPLY IN SUPPORT OF 
PETITION FOR WRIT OF CERTIORARI

Sherrilyn  A. Ifill 
Director-Counsel 

Janai S. N elson  
Sam uel  Spital 
NAACP L egal D efense  & 

Educational  Fu n d , In c . 
40 Rector Street 
5th Floor
New York, NY 10006

February 7, 2019

Daniel  S. Ha r aw a* 
NAACP L egal D efense  & 

Educational  Fu n d , In c . 
700 14th St. NW 
Suite 600
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

Counsel for Petitioner 
Patti Stevens-Rucker

* Counsel of Record

mailto:dharawa@naacpldf.org


1

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES....................................... ii

I. RESPONDENTS CONCEDE THAT THE
CIRCUITS ARE SPLIT OVER 
WHETHER A POLICE OFFICER EVER 
HAS A DUTY TO RENDER AID TO AN 
ARRESTEE.............................................................1

II. RESPONDENTS’ OTHER ARGUMENTS
GO BEYOND THE DECISION BELOW 
AND PROVIDE NO REASON TO DENY 
CERTIORARI......................................................... 5



TABLE OF AUTHORITIES

PAGE(S)

Cases

Ashworth v. Round Lake Beach Police Dep’t,
No. 03 C 7011, 2005 WL 1785314 (N.D.
111. July 21, 2005)..................................................3

Blackmore v. Kalamazoo County,
390 F.3d 890 (6th Cir. 2004).................................. 6

City of Canton v. Harris,
489 U.S. 378 (1989).................................................3

City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239 (1983).........................................3, 4,8

Farmer v. Brennan,
511 U.S. 825 (1994)................................................. 5

Graham v. Connor,
490 U.S. 386 (1989)................................................. 2

Henriquez v. City of Bell, No. CV 14-196 
GW(SSX), 2015 WL 13423888 (C.D. Cal.
Sept. 10, 2015).........................................................3

Kingsley v. Hendrickson,
135 S. Ct. 2466 (2015).........................................2, 4

Nat’l Collegiate Athletic Ass’n v. Smith,
525 U.S. 459 (1999)................................................. 6



TABLE OF AUTHORITIES
(CONTINUED)

iii

Estate of Owensby v. City of Cincinnati,
414 F.3d 596 (6th Cir. 2005)............. ............6, 7, 8

Estate of Vallina v. Cty. of Teller Sheriffs 
Office, No. 17-1361, 2018 WL 6331595 
(10th Cir. Dec. 4, 2018)...................................... 4, 5

Petro v. Town of W. Warwick ex rel. Moore,
889 F. Supp. 2d 292 (D.R.I. 2012).........................3

Reyes ex rel. Reyes v. City of Fresno,
No. CV F 13-0418 LJO SKO, 2013 WL 
2147023 (E.D. Cal. May 15, 2013)......................... 3

Roberts u. Galen of Va., Inc.,
525 U.S. 249 (1999)................................................. 6

Sparks v. Susquehanna County,
No. 3:05CV2274, 2009 WL 922489 (M.D.
Pa. Apr. 3, 2009)..................................................... 3

Stogner v. Sturdivant, No. CIV.A. 10-125- 
JJB-CN, 2010 WL 4056217 (M.D. La.
Oct. 14, 2010)...........................................................3

Tate v. Dunnigan,
No. 1:06CV169, 2007 WL 4353456
(M.D.N.C. Dec. 7, 2007)..........................................3

United States v. Bestfoods,
524 U.S. 51 (1998)................................................... 6



REPLY BRIEF OF PETITIONER

I. RESPONDENTS CONCEDE THAT THE 
CIRCUITS ARE SPLIT OVER WHETHER A 
POLICE OFFICER EVER HAS A DUTY TO 
RENDER AID TO AN ARRESTEE.

Sergeant Frenz and Officer McKee1 shot Jason 
White five times. After Officer McKee fired the last 
shot directly into Mr. White’s chest, another officer 
handcuffed Mr. White and walked away. Officer 
McKee radioed for an ambulance. And while they 
waited fifteen minutes for it to arrive, Sergeant 
Frenz and Officer McKee, who are both trained first 
responders, stood over Mr. White with their guns 
drawn, watching as he was “gasping for air” with 
“blood pumping out of [his] chest.” Neither officer 
tried to help Mr. White even though they “could 
clearly see he was dying.” See Pet. at 10.

Of the four judges that have considered this case, 
two thought Sergeant Frenz and Officer McKee were 
not entitled to summary judgment on the claim that 
they violated Mr. White’s Fourteenth Amendment 
right to medical care. Two thought the opposite. 
That these judges reached conflicting conclusions 
reflects the divide in the courts below. Respondents 
tacitly concede that the circuits are split. They

1 Respondents’ opposition at one point says that Officer McKee 
is not a party to the proceedings in this Court, Opp’n at 1, and 
then at other points, that he is a party. See, e.g., id. at 4. Ms. 
Stevens-Rucker maintains the denial of medical care claim 
against Officer McKee, and Office McKee is a party to this 
proceeding.



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acknowledge that here, the Sixth Circuit, following 
the Ninth Circuit, adopted a bright line rule that 
officers are “not required to personally provide 
medical intervention” so long as they “actQ promptly 
in summoning medical assistance.” Opp’n at 7. Yet 
Respondents do not, because they cannot, point to a 
single case from this Court that supports this rule. 
Respondents then admit that, rather than embracing 
a bright line rule, the Eighth and Tenth Circuits 
have held that sometimes an officer has a 
constitutional duty to personally provide aid. Opp’n 
at 7-8 & n.3. This split in authority, which 
potentially affects thousands (if not millions) of 
Americans each year in situations where their 
health and even lives are at stake, requires this 
Court’s attention.

Respondents claim this conflict is not 
“sufficient,” however, because the Sixth and Ninth 
Circuit cases involve officers “in the field,” while the 
Eighth and Tenth Circuit cases involve officers at 
“detention centers.” Id. at 6-7. But the courts of 
appeals did not draw this distinction, and this Court 
has never suggested that different standards apply 
depending on where an alleged constitutional 
violation occurs. In fact, in excessive force cases, this 
Court applies the same “objective reasonableness 
standard” to claims arising from the jail and the 
field. See Kingsley u. Hendrickson, 135 S. Ct. 2466, 
2474, (2015) (jail); Graham u. Connor, 490 U.S. 386, 
388 (1989) (field).



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Moreover, district courts have applied the Sixth 
and Ninth Circuits’ bright line rule in cases arising 
from both the field and the jail. See Henriquez v. City 
of Bell, No. CV 14-196-GW(SSX), 2015 WL 13423888 
(C.D. Cal. Sept. 10, 2015) (jail); Tate v. Dunnigan, 
No. 1:06CV169, 2007 WL 4353456 (M.D.N.C. Dec. 7, 
2007) (jail); Reyes ex rel. Reyes v. City of Fresno, No. 
CV F 13-0418 LJO SKO, 2013 WL 2147023 (E.D. 
Cal. May 15, 2013) (field); Stogner v. Sturdivant, No. 
CIV.A. 10-125-JJB-CN, 2010 WL 4056217 (M.D. La. 
Oct. 14, 2010) (field).

And district courts have utilized the Eighth and 
Tenth Circuits’ approach, which rejects the Sixth 
and Ninth Circuits’ bright line rule, in cases arising 
from both the field and the jail. See Petro v. Town of 
W. Warwick ex rel. Moore, 889 F. Supp. 2d 292 
(D.R.I. 2012) (field); Ashworth v. Round Lake Beach 
Police Dep’t, No. 03 C 7011, 2005 WL 1785314 (N.D. 
111. July 21, 2005) (field); Sparks v. Susquehanna 
County, No. 3:05CV2274, 2009 WL 922489, at *10 
(M.D. Pa. Apr. 3, 2009) (jail).

The question of whether police officers 
necessarily satisfy their due process obligations to 
arrestees in need of medical care by summoning aid 
has split the lower courts. This Court should resolve 
the conflict.

Respondents also do not dispute that the genesis 
of this confusion is the fact this Court has twice 
declined to define police officers’ “due process 
obligations” to provide medical care to arrestees in 
their custody. See City of Revere v. Mass. Gen. Hosp.,



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463 U.S. 239, 244 (1983); City of Canton v. Harris, 
489 U.S. 378, 389 n.8 (1989). The Revere Court did 
say, however, that arrestees’ due process rights “are 
at least as great as the Eighth Amendment 
protections available to a convicted prisoner.” Revere, 
463 U.S. at 244. And no reading of the Court’s 
Eighth Amendment precedent supports the bright 
line rule that the Sixth Circuit, following the Ninth 
Circuit, adopted in this case.

The Court’s failure to provide more specific 
guidance has also led to confusion in the lower courts 
beyond the circuit split implicated in this case. The 
circuits are split over what test even applies to 
Fourteenth Amendment denial of medical care 
claims. See Estate of Vallina v. County of Teller 
Sheriff’s Office, No. 17-1361, 2018 WL 6331595, at *2 
(10th Cir. Dec. 4, 2018) (“Circuits are split on 
whether Kingsley alters the standard for . . . 
inadequate medical care claims brought by pretrial 
detainees.”).

After the Court held in Kingsley that there is no 
subjective element to a Fourteenth Amendment 
excessive force claim, 135 S. Ct. at 2476, the Second, 
Seventh, and Ninth Circuits have held there is also 
no subjective element to a Fourteenth Amendment 
denial of medical care claim. See Vallina, 2018 WL 
6331595, at *2 (collecting cases). On the other hand, 
the Fifth, Eighth, and Eleventh Circuits have held 
that Kingsley does not affect Fourteenth Amendment 
denial of medical care claims, and thus still adhere 
to the constitutional floor established in Revere,



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using the Eighth Amendment’s deliberate
indifference test, including its “subjective
component.” Farmer v. Brennan, 511 U.S. 825, 838 
(1994); see Vallina, 2018 WL 6331595 at *2 
(collecting cases).

In short, the conflict surrounding Fourteenth 
Amendment denial of medical care claims is deep, 
real, and recurring. This Court should grant 
certiorari, confirm that no bright line rule authorizes 
officers to ignore the needs of a dying arrestee so 
long as they summon aid, and finally define police 
officers’ “due process obligations” to provide care to 
arrestees in their custody.
II. RESPONDENTS’ OTHER ARGUMENTS GO 

BEYOND THE DECISION BELOW AND 
PROVIDE NO REASON TO DENY 
CERTIORARI.
Because Respondents cannot dispute that there 

is a conflict in authority, they resort to fact-based 
arguments that were not the basis for the ruling 
below. To be clear, the Sixth Circuit reversed the 
district court and found that Respondents did not 
violate Mr. White’s constitutional right to medical 
care because the court of appeals held, as a matter of 
law, that police officers have no duty to “intervene 
personally.” App. 26a. Respondents’ argument in the 
alternative—that even if there are circumstances in 
which officers have a duty to “intervene personally,” 
those circumstances are not present here, see Opp’n 
at 8-11—should thus be disregarded. Neither the 
district court nor the Sixth Circuit addressed this



6

argument, and this Court has reminded time and 
again that it does “not decide in the first instance 
issues not decided below.” Nat’l Collegiate Athletic 
Ass’n v. Smith, 525 U.S. 459, 470 (1999); see also 
Roberts v. Galen of Va., Inc., 525 U.S. 249, 253-254 
(1999); United States v. Bestfoods, 524 U.S. 51, 72-73 
(1998).

In any event, Respondents’ arguments miss the 
mark. At the time of Mr. White’s death, Sixth Circuit 
precedent clearly established that the Eighth 
Amendment deliberate indifference test applied to 
Fourteenth Amendment denial of medical care 
claims. See Blackmore v. Kalamazoo County, 390 
F.3d 890, 895 (6th Cir. 2004) (“Whether a convicted 
prisoner or a pretrial detainee, deliberate 
indifference to one’s need for medical attention 
suffices for a claim under § 1983”). Thus, the 
question the Sixth Circuit should have asked in this 
case is whether Respondents “knew of and 
disregarded a substantial risk of serious harm to 
[Mr. White’s] health and safety.” Estate of Owensby 
v. City of Cincinnati, 414 F.3d 596, 603 (6th Cir. 
2005) (quotation marks omitted) (holding police 
officers were not entitled to summary judgment on a 
Fourteenth Amendment denial of medical care claim 
when there was evidence that they did not “provide 
any medical care” to an arrestee in “significant 
physical distress”).

The answer to this question is yes. Mr. White 
clearly needed medical care; the officers had shot 
him five times. Whether Respondents knew of and



7

disregarded the risk of harm to Mr. White’s health 
and safety is also not seriously in dispute; they stood 
by and watched Mr. White bleed to death without 
trying to provide any aid despite being trained as 
first responders and knowing that providing aid is a 
critical part of their job as police officers. See, e.g., 
ECF No. 83-4 at 38 (Dep. of Robert Parkey). Indeed, 
one Columbus City officer testified that their job was 
to “keep [Mr. White] alive.” ECF No. 84-1 at 36 (Dep. 
of Joel Mefford). Instead, Respondents watched him 
die. On these facts, as the district court held and 
Judge Stranch argued in dissent, the denial of 
medical care claim should have gone to a jury. 
Respondents are wrong that “the practical outcome 
of this matter will remain the same” if this Court 
grants certiorari. Opp’n at 11.

Respondents try to skirt the fact that a jury 
could find that they were deliberately indifferent to 
Mr. White’s serious medical needs by arguing any 
aid that they could have provided would have been 
“futile.” Opp’n at 2-3. But the Sixth Circuit did not 
rely on this argument, and Sixth Circuit precedent is 
clear that the effect of an unconstitutional delay in 
providing medical care may be relevant to the 
amount of damages but not to the existence of a 
constitutional violation. See Owensby, 414 F.3d at 
604. Further, Sergeant Frenz said in his sworn 
affidavit that he did not help Mr. White not because 
it would have been “futile,” but because the 
paramedics were on the way. See ECF No. 79 (Aff. of 
John Frenz) (“Because I believed more thoroughly 
trained medics would be arriving quickly, I did not



8

believe it was necessary for me or any of the other [ ] 
officers on the scene to provide First Aid, CPR, or 
any other type of medical attention to the suspect.”). 
Given this record, the “futility” of any aid and its 
relevance to this case must be addressed on remand.

Respondents also contend that a ruling in Ms. 
Stevens-Rucker’s favor would require “new law.” 
Opp’n at 9-10. Quite the opposite; the Sixth Circuit 
formulated “new law” when it crafted a bright line 
rule that was inconsistent with both this Court’s 
precedent, and prior Sixth Circuit precedent, to deny 
Ms. Stevens-Rucker relief. Thirty years before Mr. 
White’s death, this Court held that, “the due process 
rights of [an arrestee] . . . are at least as great as the 
Eighth Amendment protections available to a 
convicted prisoner.” Revere, 463 U.S. at 244. That 
means that, under clearly established law, this case 
must go to a jury so long as a reasonable factfinder 
could conclude that Respondents “knew of and 
disregarded a substantial risk of serious harm to 
[Mr. White’s] health and safety.” Owensby, 414 F.3d 
at 603. Here, a jury could find that Respondents, 
who were trained first responders, failed to meet 
that minimum standard of care when they stood over 
Mr. White for fifteen minutes as he bled to death 
without making any effort to help.



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The Court should grant review, and ultimately, 
reverse the Sixth Circuit’s judgment.

Respectfully submitted,

Sherrilyn A. Ifill 
Director-Counsel 

Janai S. Nelson 
Samuel Spital 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street 
5th Floor
New York, NY 10006

Daniel S. Harawa* 
NAACP Legal Defense & 

Educational Fund, Inc. 
700 14th St. NW 
Suite 600
Washington, DC 20005 
(202) 682-1300 
dharawa@naacpldf.org

Counsel for Petitioner 
Patti Stevens-Rucker

* Counsel of Record

mailto:dharawa@naacpldf.org