Does a Texas police officer who uses deadly force have to give the injured person medical aid?

Texas AG Opinion JM-538: Police Duty to Give Aid

Plain-English summary

A state senator asked the Attorney General about a public safety officer whose main job was firefighter emergency medical technician but who also worked as a police officer. The scenario: while acting as a police officer, the officer has to use deadly force and critically injures a person. Is the officer then legally obligated, in his emergency-medical-technician role, to treat that person and try to save his life? Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0538.pdf

The AG concluded there was no real conflict between the two roles. Section 9.51 of the Penal Code lets a peace officer use only the degree of force reasonably necessary to make an arrest or prevent escape, not excessive force. Once an officer critically injures someone, that person usually cannot resist any further, so the officer's authority to use force and any duty to give aid no longer collide. The AG then turned to federal civil-rights law. Under 42 U.S.C. section 1983 and the Supreme Court's decision in Estelle v. Gamble, failing to provide medical care to someone in custody can be deliberate indifference to a serious medical need and violate the person's constitutional rights. Federal courts in McQurter v. City of Atlanta and Smith v. Dooley had held that police officials have a duty to secure medical attention for an injured detainee even when the injury came from a justified use of force. Putting these together, the AG concluded that a peace officer who uses deadly force and critically injures a person has a duty under section 1983 to provide or secure medical attention for that person and attempt to save his life; failing to do so would generally amount to deliberate indifference to a serious medical need. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0538.pdf

The AG also addressed two follow-up worries. Administering emergency aid would not violate the Penal Code's ban on tampering with or fabricating physical evidence (section 37.09) unless the officer acted with the specific intent to impair the evidence's value, so an officer trying to save a life or ease suffering would not be guilty of that offense. And the AG declined to predict whether a grand jury might treat the giving of aid as a sign the officer did not actually fear for his life, saying that asks the office to anticipate future grand jury decisions, which an opinion cannot do. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0538.pdf

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, and later AG opinions may have changed the analysis, and the federal case law on an officer's duty to provide medical care has developed considerably since then. The state civil-service provision it cites (article 1269m) has since been recodified into the Local Government Code. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule or citation mentioned here.

Common questions

If a police officer shoots and critically wounds someone, does the officer have to try to save that person?

Yes, in substance. The AG concluded that a peace officer who uses deadly force and critically injures a person has a duty under 42 U.S.C. section 1983 to provide or secure medical attention for that person and attempt to save his life. It relied on federal decisions holding that police officials must secure medical attention for an injured detainee even when the injury resulted from a justified use of force. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0538.pdf

Doesn't the duty to make an arrest conflict with the duty to give first aid?

Not once the person is critically injured. The AG reasoned that after an officer critically injures someone, that person is usually unable to offer any further resistance, so there is no longer a conflict between the officer's right to use force to make an arrest and the duty to administer aid and try to save the person's life. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0538.pdf

Does giving medical aid at the scene count as tampering with evidence?

No, unless the officer intends to impair evidence. The AG explained that the Penal Code's evidence-tampering offense (section 37.09) requires an intent to impair a record, document, or thing's value as evidence. An officer who gives emergency aid to save a life, ease suffering, or limit the injury would not be guilty of that offense absent that specific intent. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0538.pdf

Would a grand jury see the officer's giving of aid as proof he was not really in danger?

The AG would not say. It explained that predicting what decisions a grand jury might make in the future cannot be answered in an attorney general opinion, though it noted that the points about the use of force discussed in the opinion may be relevant to a grand jury's deliberations. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0538.pdf

Background and statutory framework

The question arose from a dual-role public safety officer, and the AG framed it around the Penal Code's use-of-force rules. Section 9.51 sets out when a peace officer may use force or deadly force to make an arrest or prevent escape, allowing only the degree of force the officer reasonably believes is immediately necessary and forbidding excessive force. The AG observed that once an officer critically injures a person, the person is generally subdued, so the authority to use force no longer competes with a duty to render aid. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0538.pdf

For the duty itself, the AG looked to federal civil-rights law under 42 U.S.C. section 1983. In McQurter v. City of Atlanta, a federal district court found that police used excessive force resulting in a death and that the officers' failure to provide medical attention after the arrestee was critically injured showed deliberate indifference to his serious medical needs, violating his constitutional rights (applying Estelle v. Gamble). The court noted that prevailing standards of police work require the officer on the scene to render first aid to any injured subject and obtain emergency professionals for more serious cases. The reasoning was followed in Smith v. Dooley, which, citing McQurter and Dailey v. Byrnes, stated that police officials have a duty to secure medical attention for an injured detainee or inmate even when the injuries result from the justified application of force. The AG read these cases as stating the duty broadly, not limiting it to cases of deliberate indifference, and even suggesting it applies where the injury is not life-threatening. On the evidence question, section 37.09 of the Penal Code makes it a Class A misdemeanor to alter, destroy, or conceal a record, document, or thing with intent to impair its availability as evidence, and the AG (assuming the statute relevant) explained that an officer rendering aid lacks that intent (see Penal Code sections 6.01, 6.02(a), 6.03 on culpable mental states). On the grand jury question, the AG pointed to the grand jurors' oath under Code of Criminal Procedure article 19.34 and declined to forecast their decisions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0538.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0538.pdf

Statutory and constitutional provisions:

• 42 U.S.C. § 1983
• Tex. Penal Code § 9.51 (use of force to make arrest or prevent escape); §§ 9.31, 9.32, 9.34, 9.42, 9.43
• Tex. Penal Code § 37.09 (tampering with or fabricating physical evidence); §§ 6.01, 6.02(a), 6.03
• Tex. Code Crim. Proc. arts. 6.06, 19.34
• V.T.C.S. art. 1269m, § 5

Cases:

• Estelle v. Gamble, 429 U.S. 97 (1976)
• McQurter v. City of Atlanta, 572 F. Supp. 1401 (N.D. Ga. 1983)
• Smith v. Dooley, 591 F. Supp. 1157 (W.D. La. 1984), aff'd mem., 778 F.2d 788 (5th Cir. 1985)
• Dailey v. Byrnes, 605 F.2d 858 (5th Cir. 1979)
• Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0538
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0538.pdf

Original opinion text

Best-effort transcription from a scanned PDF text layer. Minor OCR errors may remain; the linked PDF is authoritative.

The Attorney General of Texas

August 22, 1986

JIM MATTOX
Attorney General

Honorable O. H. "Ike" Harris
Chairman
Economic Development Committee
Texas State Senate
P. O. Box 12068, Capitol Station
Austin, Texas 78711

Opinion No. JM-538

Re: Duties and liabilities of a police officer who is also a firefighter emergency medical technician

Dear Senator Harris:

You request an opinion about the duties and responsibilities of a public safety officer who primarily works as a firefighter emergency medical technician and whose duties also include working as a police 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 officer 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, § 5.

Section 9.51 of the Penal Code sets out the circumstances under which a peace officer may use force or deadly force to make an arrest or prevent escape after an arrest. See also Penal Code §§ 9.31, 9.32, 9.34, 9.42, 9.43. The peace officer may use that degree of force or deadly force which he reasonably believes is immediately necessary to make the arrest or prevent escape but he is not allowed to use excessive force. Penal Code § 9.51; Code Crim. Proc. art. 6.06; Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976).

Once the officer critically injures someone, that person would, in the usual case, be unable to offer any more resistance. At that point, there is no conflict between a peace officer's right to use force to effect an arrest, and any duty a fireman emergency medical technician may have to administer 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 supervisors and employer under section 1983, 42 U.S.C., alleging that the police used excessive force in arresting her husband, resulting in his death. The court found that the force was excessive and violated the decedent's constitutional rights. The failure of the police officers to provide the arrestee medical attention after he was critically injured evidenced deliberate indifference to his serious medical needs and therefore also violated his constitutional rights. See Estelle v. Gamble, 429 U.S. 97 (1976). The court in McQurter 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 McQurter was followed in Smith v. Dooley, 591 F. Supp. 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 court stated as follows:

Both the McQurter case and the Dailey v. Byrnes case [605 F.2d 858 (5th Cir. 1979)] stand for the proposition that police officials have a duty to secure medical attention for an injured detainee or inmate, even when the injuries result from the justified application of force by the officers.

Smith v. Dooley, 591 F. Supp. 1157, 1170 (W.D. La. 1984) aff'd mem. 778 F.2d 788 (5th Cir. 1985) (dicta).

In both McQurter and Smith 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 two cases state in broad terms the peace officer's duty to provide or secure medical aid, and they do not limit the duty to cases where failure to do so constitutes deliberate indifference to the arrestee's serious medical needs. A peace officer who uses deadly force against an individual and critically injures him has a duty as a peace officer to provide or secure medical aid for him and attempt to save his life. 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.

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 statutes which you wish us to consider. A prohibition against tampering with or fabricating physical evidence is found in section 37.09 of the Penal Code, which provides in part:

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:

(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or

(2) makes, 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 offense under this section is a Class A misdemeanor. (Emphasis added).

Penal Code § 37.09. We will assume without deciding that this statute is relevant to the scenarios about which you inquire. One element of this offense is that physical evidence be destroyed "with intent to impair its verity, legibility or availability as evidence. . . ." A peace officer who gives emergency medical aid to save an injured person's life, ease suffering, 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 §§ 6.01, 6.02(a), 6.03.

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 life in danger. You ask us to anticipate decisions that grand juries might make in the future. The question cannot be answered in an attorney general opinion. Some of the matters already discussed in this opinion may, however, be relevant to grand jury deliberations on the use of force by peace officers in arresting an individual or preventing his escape. See Penal Code § 9.51. Particularly noteworthy is the statement in Smith v. Dooley, 591 F. Supp. 1157 (W.D. La. 1984) aff'd mem. 778 F.2d 788 (5th Cir. 1985) that

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

591 F. Supp. at 1170. The facts of Smith v. Dooley and McQurter 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 arrestee may be completely subdued and in need of medical attention. We assume that grand jurors will evaluate the facts of each incident in accordance with their oath to

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

Code Crim. Proc. art. 19.34.

SUMMARY

A police officer, who must use deadly force against a person and injures him critically, has a duty under section 1983, 42 U.S.C., to provide or secure medical attention for that person, and attempt to save his life.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General