A federal appeals court has been asked by the city of Chico to throw out the civil rights suit filed by a drunken man who set himself on fire while handcuffed in a police van saying officers failed to confiscate his cigarette lighter.
The Northern California town of Chico has appealed a trial court decision to allow Joseph DeVincenzi’s due process violation and civil rights lawsuit to proceed to a trial.
The 9th U.S. Circuit Court of Appeals heard arguments Thursday.
Judge Richard Tallman appeared skeptical of DeVincenzi’s suit. “You have a heck of a complaint for negligence, but we cannot find a constitutional violation for negligence, there has got to be something more,” he siad.
DeVincenzi was arrested while drunk and behaving erratically in 2009. He was handcuffed and shackled in the police van to keep him from kicking out a plexiglass window. Police had searched him but either failed to find or failed to confiscate his cigarette lighter.
The suit claims DeVincenzi either tried to light a cigarette and ignited his shirt or tried to kill himself and was severely burned before officers responded to his cries.
“Based on the pleadings, the officers knew of a danger and of an attempt to injure himself and they consciously ignored his groans and cries for help,” said visiting Judge Raymond Dearie of New York. “If I accept that as true, why is that alone not enough to survive your motion to dismiss?”
“There is no constitutional duty to rescue someone from a self-created peril,” argued Chico’s attorney John Whiteside.
This appeared to bother Judge Johnny Rawlinson. “If someone set themselves on fire in a prison cell, would you have the same answer?” she asked.
“Yes, with the difference that he was rescued. His claim is that it was not quickly enough,” Whiteside said.
Dearie responded, “You’re arguing that he was under [police] control but once the fire occurred and he cried out for help, due process does not require the officer to take any action?”
“That is correct,” Whiteside said.
Tallman asked, if the city had no custom or policy for observing arrestees, why not just drive him to the jail?”
DeVincenzi’s attorney came in for tough questions as well.
Michelle Scheinman argued that DeVincenzi was suicidal, bipolar and schizophrenic and was restrained while banging his head against the van’s plexiglass. “He was left completely unattended,” she said.
Rawlinson said, “It’s not that he was deliberately left by [police]. And that sounds more like negligence.
“It was deliberate indifference to his condition,” Simon argued.
Dearie added, “He was shackled for his own protection. Where do we cross the constitutional line?”
Simon responded, “At the point that the city has no policy in place. They bring him to the station and leave him in a place where there was no way for him to reach anyone. He was left in a van with no one else there, no video camera. It is the totality of the conditions.”
Tallman responded, “What’s missing for me, was it done knowingly?
“The officers had two options,” Scheinman said. “They could take a known ill and suicidal individual to the hospital or place him in the care of another. But they left him unattended for an unknown period. Only after he was severely burned did they respond to his cries.”
Case: DeVincenzi v. City of Chico, No. 13-15041