In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1487

KATHLEEN PAINE, as guardian of the estate of

Christina Rose Eilman,

Plaintiff-Appellee,

v.

RICHARD CASON, et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 3173—Virginia M. Kendall, Judge.

ARGUED SEPTEMBER 20, 2010—DECIDED APRIL 26, 2012

Before EASTERBROOK, Chief Judge, and POSNER and

ROVNER, Circuit Judges.

EASTERBROOK, Chief Judge. Police arrested Christina

Eilman on May 7, 2006, outside Chicago’s Midway

Airport. Eilman had arrived from California, her home

state, on May 5, and on May 6 she tried to return. When

a ticket agent at Frontier Airlines told Eilman that she

lacked a reservation, Eilman threw a tantrum and was
2 No. 10-1487

escorted from the airport. On May 7 she purchased a

ticket from Southwest Airlines but behaved so oddly

while waiting to board the airplane that agents called

the police, who again escorted her from the airport. (The

district court’s opinion, 689 F. Supp. 2d 1027 (N.D. Ill.

2010), recounts the details; we provide only an outline.)

Eilman walked to the rail and bus terminal of the

Chicago Transit Authority, immediately outside the

airport, where she started singing loudly, ranting about

the price of oil, and screaming at other persons with

her face only inches from theirs. She would not or

could not stop, despite multiple requests, leading to

her arrest.

Eilman, 21 and in college, had been in an auto

accident the previous year. She recovered physically

but developed bipolar disorder, spending 37 days in a

mental hospital. (Whether the accident caused the

bipolar disorder or just aggravated an existing condition

is not important.) Eilman failed to take prescribed

psychotropic medicines and had relapses. Experts in

this litigation concluded that, during May 5 to 8, 2006,

Eilman was in an acute manic phase. She did not tell

the police about her mental-health background, however, and was uncooperative after her arrest—sometimes

refusing to answer questions, sometimes screaming, sometimes providing false or unresponsive answers. Phone

calls from her mother and her stepfather told officers

in Chicago that Eilman had bipolar disorder, but the

officers did not believe the stepfather (they thought

that the call was fake), and the officer who took the

calls from Kathleen Paine, Eilman’s mother, failed to tell
No. 10-1487 3

anyone else or record the information in Eilman’s file.

While Eilman was in custody, some officers thought

that she was just being difficult, some thought that

she was on drugs (expert reports relate that methamphetamine could cause similar symptoms), some

thought that she was no worse than the run of loud

and uncooperative people who don’t want to be in custody, and those who thought that she needed mentalhealth care were ignored or overruled.

Police took Eilman from Midway Airport to the Eighth

District station, at 3515 West 63rd Street, 2.6 miles from

the airport by road (as are the other distances in

this opinion). She was in custody from midafternoon

of May 7 until that evening, when Lt. Earnest, the watch

commander, decided that Eilman would be charged

and held until she qualified for release on bond. That

decision led to Eilman’s transfer to the Second District

station at 5101 South Wentworth Avenue, about 5.7 miles

from the Eighth District station (and 7.3 miles from the

airport). The Second District has a holding facility for

women; the Eighth District does not. While at the

Second District, Eilman alternated between calm and

manic conduct, sometimes chatting amiably while sometimes screaming, chanting rap lyrics, smearing menstrual

blood on the cell’s walls, and taking off her clothes.

Officers processed the paperwork to release her on an

individual-recognizance bond. Eilman signed the bond

at about 6:30 PM on May 8 and walked out of the

stationhouse.

She had no idea where she was and did not do the most

sensible things—hail a taxi or head for a CTA station
4 No. 10-1487

(three were nearby) and get out of the area during the

remaining daylight. (Sunset that day was 7:57 PM.) It was

evening; the police station was close to the Robert Taylor

Homes, a public-housing project with an exceptionally

high crime rate; the police had not returned her cell

phone, so she could not easily summon aid; she was

lost, unable to appreciate her danger, and dressed in a

manner that attracted attention (a cutoff top with a

bare midriff, short shorts, and boots); and she is white

and well off while the local population is predominantly

black and not affluent, causing her to stand out as a

person unfamiliar with the environment and thus a

potential target for crime. Officer Pauline Heard saw

Eilman standing, with a puzzled look, in the stationhouse’s parking lot. Heard pointed toward 51st Street.

Eilman began walking but did not leave the neighborhood. She stopped in the J & J Fish Restaurant at

5401 South Wentworth. The restaurant’s staff and customers have related that she was babbling and acting

strangely.
No. 10-1487 5

This map shows the location of the police station

(the arrow) and the restaurant (the pin); M symbols

indicate the nearest CTA stations (bus stops are unmarked); the Robert Taylor Homes were east of Federal

Street between 39th and 54th Streets. Chicago began
6 No. 10-1487

demolishing the buildings in 2005, but some of the structures were still there in May 2006, with many apartments

empty as residents had been evicted in anticipation

of the demolition, which was completed in 2007. Vacant

apartments, like vacant buildings, render an area more

dangerous because such places can become havens for

criminals.

Eilman left the restaurant, walked two blocks north

(and one block east), and joined a cluster of 15 to 20

people on a street corner outside 5135 South Federal

Street, one of the project’s high-rise buildings. She accompanied several young men to Apartment 702, which

was vacant and had been taken over as a hangout. Some

of the occupants told her that it was unsafe and that

she should leave, but Eilman was too confused to act

on that advice. One man nonetheless led her to his grandmother’s house, but when Eilman said that she needed

a place to sleep for the night she was returned to Apartment 702. About five hours after the police let Eilman

go, Marvin Powell found her there, forced others out,

and raped her at knifepoint. People outside tried and

failed to break down the door in time to save Eilman.

Trying to escape, Eilman jumped out the window,

which was seven stories above ground. She may have

been pushed or thrown out but cannot tell us what happened, because although she survived the fall her

brain was seriously damaged. She has undergone years

of physical therapy, but her brain functioning is permanently that of a child. This suit under 42 U.S.C. §1983

against the City of Chicago and 13 police officers

(or civilian aides at the police stations) was filed by
No. 10-1487 7

Kathleen Paine, Eilman’s mother, in her capacity as

Eilman’s guardian. The district court granted judgment

in favor of some defendants but denied others’ motion

to dismiss. On this interlocutory appeal 10 of the

13 individual defendants contend that they are protected by qualified immunity.

The district court rejected the defendants’ claim of

immunity because, in the judge’s view, detainees’ right

to medical care is clearly established—and because a

reasonable jury could find that Eilman needed care, and

the police knew it. An interlocutory appeal from a

qualified-immunity decision is limited to legal issues,

see Johnson v. Jones, 515 U.S. 304 (1995), so we accept the

district court’s conclusion that Eilman’s captors knew

that she was mentally disabled (or were reckless in disregarding the signs observable to them). This has allowed

us to omit a great deal of factual detail.

Although the district court saw only one legal theory,

Paine actually has three, and these require separate

treatment. The first theory is the one the district judge

discussed: the right to medical care while in custody.

The second theory is that Eilman should have been

kept in custody longer to facilitate medical care. These

theories are related but distinct. The first theory takes

the time of release as given and asks what medical treatment is required while custody continues; the second

emphasizes the medical care and asks how this affects

the time of release. Paine’s third theory is that the defendants gratuitously put Eilman in danger by releasing

her where and when they did, and in a mental state
8 No. 10-1487

that left Eilman unable to protect herself. These three

theories have different implications for qualified immunity. We address them in order.

1. Police must provide care for the serious medical

conditions of persons in custody. See Farmer v. Brennan,

511 U.S. 825 (1994); Estelle v. Gamble, 429 U.S. 97 (1976).

That right is clearly established. See Ortiz v. Chicago,

656 F.3d 523 (7th Cir. 2011) (discussing this duty and

why it applies even if the custody is expected to be

short). See also Cobige v. Chicago, 651 F.3d 780 (7th Cir.

2011). As we have already explained, whether the

police should have understood that Eilman had a

serious medical condition is a factual issue that cannot

be decided on an interlocutory appeal.

What appellants say about this theory is not that the

law was too uncertain to establish Eilman’s right to

medical care. It is instead that Paine has not established

causation. As appellants see things, Paine’s theory is not

really that a lack of medical care led to Eilman’s injury

so much as it is a lack of custody that did so. That is,

Eilman did not suffer (while in custody) a heart attack,

appendicitis, or other acute medical episode that caused

injury. Her condition was the same before her arrest as

it was after her release. Eilman’s injury came from

what happened after her release, not from the manic

episode while in custody.

Causation is another factual issue not suited to resolution on an interlocutory appeal, however. It is not related

to the question whether there is a clearly established

right to medical care while in custody.
No. 10-1487 9

Perhaps lack of causation could be so glaring that

the plaintiff would not even have standing to present a

particular claim for relief. But we cannot rule out the

possibility that Paine could show that Eilman suffered

some injury from the manic episode itself during the

hours of her custody. More: the rape and brain injury

might be traceable to the lack of care while Eilman was

in custody. A psychiatrist called to the stationhouse

might have administered Eilman’s prescribed psychotropic medication, which she had failed to take. This

might have enabled Eilman to protect herself after she

was released. That plausible theory of causation cannot

be rejected on this interlocutory appeal.

2. Paine could have been satisfied had her daughter

been released in a way that allowed her to return to

California and receive treatment from her own medical

providers. Similarly, Paine could have been satisfied

had her daughter been kept in a cell until Paine reached

Chicago and could escort her home. This leads us to

ask whether there is a clearly established right to be

held in custody, as distinct from a right to the medical

care needed to avoid pain or injury while custody continues. But we start with the question whether the

police must protect people from private violence.

DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189 (1989), holds that the Constitution

does not create a right to be protected from criminal

predators. The officers observe that Powell, not the

police, assaulted Eilman and insist that there is no

right—let alone the sort of clearly established right
10 No. 10-1487

needed to overcome a claim of immunity—to be detained. While in a manic phase, Eilman was unable to

take care of herself, but three-year-old Joshua DeShaney

was even less capable of self-protection; the Justices

held in DeShaney that neither a potential victim’s helplessness nor the state’s knowledge that failure to

intervene exposes a vulnerable person to a risk of

crime requires the state to offer protection.

Had the police honored their duty to provide medical care by referring Eilman for a psychiatric evaluation,

she would not have been released where and when she

was and would not have been in Apartment 702 the

evening of May 8, 2006. That would solve the DeShaney

problem, but only if there is a right to have custody

extended in order to provide additional medical care. We

do not think, however, that there is a clearly established right to have custody extended for this reason.

The decisions on which Paine relies hold only that care

is required for the serious medical needs of those in

custody (what we are calling Paine’s first theory). A contention that the police didn’t keep Eilman in custody

long enough is fundamentally different. Unlike the

arrestee in Ortiz, who died while in custody because the

police blocked her access to medications, Eilman was

released in the same mental condition as when she had

been arrested. If the police arrest someone for public

drunkenness and discover that he needs dialysis and a

liver transplant, they need not extend the custody so

that he can receive medical care at public expense; the

state is free to let him go in the condition in which he
No. 10-1487 11

was found. Similarly when the appropriate medical care

is a warm bed. Persons stopped on suspicion of intoxication don’t have a “right to be detained” until sober,

lest they come to harm while drunk. Paine does not

cite, and we could not find, any decision establishing

a right to be held in custody pending medical treatment

(or even a medical problem’s self-resolution, as with

the clearance of alcohol from the blood).

Our decision in Stevens v. Green Bay, 105 F.3d 1169

(7th Cir. 1997), illustrates the limited force of an argument that police must detain someone for treatment.

Stevens, who was drunk, got into a fight in a bar.

Bouncers threw him out. Police could have arrested

him but chose not to. They drove him to a public phone,

from which he could call friends to pick him up. Instead

of calling for aid, however, Stevens wandered off and,

too intoxicated to protect himself, stepped into the path

of a car and was killed. Relying on DeShaney, we held

that the police did not have any duty to take Stevens

into custody or drive him to a hospital; it was enough,

Stevens concluded, that the police left Stevens no worse

off than when they found him. See also, e.g., King v. East

St. Louis School District 189, 496 F.3d 812 (7th Cir.

2007) (school not required to detain a pupil in order

to prevent her from walking through a high-crime neighborhood). If police had stopped Eilman at the airport

and released her promptly, with a citation for disorderly

conduct, she would not have had a legitimate grievance

against the officers had she come to harm at a criminal’s

hands five hours later. Although Atwater v. Lago Vista,

532 U.S. 318 (2001), holds that police are entitled to
12 No. 10-1487

make custodial arrests for minor offenses, no decision

of which we are aware holds that they are required to

do so, whether or not the person would be better off

when in custody than when free.

Doubtless when the police do take someone into

custody, prevent him from getting medical care, fail to

supply a replacement for that care, and thus cause

his condition to deteriorate, there is a constitutional

problem—at least when the medical condition is

serious and the officers are deliberately indifferent to the

problem. So the Supreme Court held in Farmer, and its

conclusion is equally applicable to pretrial detainees.

Ortiz is a good example. But Paine does not contend

that Eilman would have obtained mental-health care

for herself had she been free on May 8, 2006—recall

that Eilman had been at liberty for the preceding days

yet failed either to seek treatment or take her medications, though Paine’s own experts concluded that

Eilman had been in an acute manic phase since May 5.

Nor does Paine contend that Eilman’s mental condition

deteriorated because of the custody.

Apart from the principle underlying DeShaney

and Stevens—that the Constitution is a charter of

negative liberties rather than a source of rights to protection or treatment—is the fact that a “right to be detained

for medical care” would put police in a bind. Evidence

in Portis v. Chicago, 613 F.3d 702, 704 (7th Cir. 2010),

suggests that 10% of all persons arrested in Chicago are

drunk or high on drugs, and a similar portion may have

some mental illness. Existing law creates a right to be
No. 10-1487 13

released on bail (for bailable crimes) as promptly

as possible, with 48 hours as the outside time

before presentation to a judicial officer who can make

an authoritative decision. See County of Riverside v.

McLaughlin, 500 U.S. 44 (1991). When it is possible,

police who do not need to hold someone for an appearance in court must release people faster. Gramenos v.

Jewel Companies, Inc., 797 F.2d 432 (7th Cir. 1986), suggests

that in some circumstances even four hours may be

excessive. In Portis a district court ordered the City

to pay damages for not releasing one category of

arrestees in less than two hours; we reversed that

decision, holding that the sole numerical line is the

one from McLaughlin, but did not retreat from Gramenos

and other decisions that the constitutional standard

of reasonableness often may call for release before

48 hours.

A competing “right to be detained” would put police

in a damned-if-you-do, damned-if-you-don’t situation.

Officers aren’t psychiatrists and would have trouble

separating persons who really need mental-health care

(or other medical care) from persons who are faking

or trying to make pests of themselves. Sending even a

modest fraction of arrested persons for mental-health

evaluation could swamp medical facilities—police in

Chicago make about 250,000 arrests annually, many

for minor infractions (such as Eilman’s) that ordinarily

are followed by prompt release. If the threat of financial liability induces the police to send any significant

portion of these to hospitals, the average time in custody

will go up (a mental-health evaluation requires two to
14 No. 10-1487

seven days, according to expert affidavits in this record)—and for many of these people the extra time in

custody will be unwelcome and unnecessary. In a suit

such as this the judges don’t see the costs of false

positives (people referred for a lengthy evaluation

who could have been set free earlier), but they still

must consider the deprivation of liberty that these

false positives would entail.

What Paine has in mind is a constitutional parallel to

the “duty to stabilize” requirement in the Emergency

Medical Treatment and Active Labor Act, 42 U.S.C.

§1395dd. A person who arrives at a hospital’s emergency

room cannot be released until the medical condition

has been stabilized. Legislatures are free to create such

entitlements; the judiciary is not supposed to use §1983

in this fashion, as if the Constitution were a source

of authority to create a federal common law of torts

by public employees and apply it retroactively to

police officers who acted six years ago. More: people

who present themselves to emergency rooms want

medical care, so the problem of false positives is less

serious. Many arrested persons desperately want to be

released, so they can go home; they would not be

made better off by a doctrine that induced police to

detain them for mental-health evaluation or emergencyroom care whenever there was some question about

their physical or mental health.

But we need not and do not decide whether—and, if so,

when—there is a constitutional right to have custody

prolonged so that more or better medical care may be
No. 10-1487 15

provided. This is a qualified-immunity appeal, and the

critical question is whether plaintiff’s claim rests on a

“clearly established” right. See Messeschmidt v. Millender,

132 S. Ct. 1235, 1244–45 (2012). Paine relies principally

on decisions such as Farmer and Ortiz that concern

medical care during custody. She has not cited, and we

did not find, cases establishing (clearly or otherwise)

a right to be kept in custody, beyond the time when

release otherwise would occur, so that medical care

can be provided.

3. We arrive at Paine’s third theory. The police

arrested Eilman at Midway Airport, where she was safe,

and let her go 7.3 miles away, just before nightfall, in a

dangerous neighborhood. Data in the record show that

sexual assaults are 15 times more common, per capita, in

the precinct where Eilman was released than around

Midway Airport. And that is the figure for the local

populace. Eilman stood out because of her attire and

behavior; she was less aware than local residents of the

need for precautions and less able to take precautions to

the extent that she may have been aware of the need. She

was at considerably more than 15 times the risk of a

person near Midway Airport. And the police, who not

only created the extra risk by moving Eilman but also

were aware of the crime problem in and near the

Robert Taylor Homes—and, we must assume, aware that

Eilman was mentally unstable and unable to protect

herself—did nothing to mitigate that risk.

They did not warn Eilman about the neighborhood’s

dangers. They did not walk her to the nearest CTA
16 No. 10-1487

station (parallel to driving Stevens to a phone), from

which she could have reached a safer neighborhood

in minutes. They did not drive her back to the airport,

where she could have used her ticket to return to California. They did not put Eilman in contact with her

mother, who had called the stationhouse repeatedly.

Her mother could have called a car service to pick

Eilman up and drive her to a hotel (or the airport), and

told her to remain at the stationhouse until the car arrived. They did not even return Eilman’s cell phone,

which she could have used to summon aid. They might

as well have released her into the lions’ den at the

Brookfield Zoo. See Bowers v. DeVito, 686 F.2d 616, 618

(7th Cir. 1982), which anticipated DeShaney but added

that throwing someone into a snake pit would violate

the due process clause.

It is clearly established that state actors who, without

justification, increase a person’s risk of harm violate

the Constitution. Some decisions call this a special-relationship exception to DeShaney, but we prefer to avoid

the jargon. There’s no need to hunt for “special relationships” (what makes one “special,” anyway?), and it is

misleading to treat augmented risk as an “exception” to

DeShaney. As we’ve mentioned, DeShaney rests on the

understanding that the due process clause establishes

a right to be let alone, not a right to be assisted. State

actors who needlessly create risks of harm violate the

due process clause by depriving persons of life, liberty,

or property without process (no one offered Eilman a

hearing on the question whether she should be released

in a dangerous place while unable to protect herself).
No. 10-1487 17

Several decisions in this and other circuits hold that

people propelled into danger by public employees have

a good claim under the Constitution. White v. Rochford,

592 F.2d 381 (7th Cir. 1979), is an example. Police

stopped a car and arrested the driver for drag racing.

They took the driver to the police station and left the

car, and its three remaining occupants, at the side of

the Chicago Skyway, a busy limited-access highway. All

three occupants were minors, and two of the three

were children. Drag racing is dangerous, but the situation of the children deteriorated when the police took

away the driver and left them stranded. When it

became too cold for them to stay in the car, they got

out, crossed the eight-lane expressway, and went

hunting for a public call box. Eventually they phoned

home and were picked up. They escaped being hit by

a car or attacked and robbed, but one of the three, a fiveyear-old asthmatic, spent a week in a hospital as a result

of the ordeal, and all three suffered fright and other

mental distress. They had a good claim against the

police who left them in danger. Later decisions show

that DeShaney did not disturb that conclusion.

For example, Reed v. Gardner, 986 F.2d 1122 (7th Cir.

1993), holds that police violate the due process clause

by arresting the driver of a car and leaving its keys in

the hands of an intoxicated adult, who then endangers

third parties. (The drunk in Reed crossed the center line

while speeding and plowed into another car, one of

whose occupants died.) Wood v. Ostrander, 879 F.2d 583

(9th Cir. 1989), also illustrates the principle that officials

violate the Constitution by gratuitously increasing the
18 No. 10-1487

risks of crime. A police officer stopped a car for driving

with its high-beam lights on, arrested the driver, and

called for a tow truck to have the car impounded.

The officer left the car’s passenger stranded in a highcrime area. The passenger walked toward her home

until she accepted a ride from an unknown man, who

raped her. Wood held that leaving the passenger in

the lurch violated the due process clause; arresting the

driver had materially increased the passenger’s risks.

4. A detainee does not have a clearly established constitutional right that release be delayed pending mentalhealth treatment, but it is clearly established that the

police may not create a danger, without justification, by

arresting someone in a safe place and releasing her in a

hazardous one while unable to protect herself, and it is

also clearly established that police must arrange for

medical treatment of serious conditions while custody

continues.

Ten of the defendants have appealed. Some are

entitled to immunity under the approach we have taken,

some are not, and for two it may be necessary to hold

further proceedings to reach a conclusion. We briefly

discuss the evidence concerning each of the appellants.

Richard Cason was the arresting officer at Midway

Airport. He tried to persuade Eilman to leave the Airport

and arrested her only when her disruptive conduct continued. Paine does not deny that there was probable

cause to arrest Eilman. Cason told other officers at the

Eighth District that Eilman may need medical care.
No. 10-1487 19

That his advice was not followed does not support personal liability. Cason is entitled to qualified immunity.

Rosendo Moreno was on duty at Midway Airport and

assisted Cason in making the arrest. The record does

not show whether Moreno, like Officer Cason, suggested

to personnel at the Eighth District that Eilman receive

mental-health treatment. But an officer who makes

an arrest is not responsible for providing medical care

while the person is in custody, or for deciding where

and when the person will be released. Moreno is

entitled to qualified immunity.

David Berglind, a sergeant at the Eighth District, conducted an intake evaluation of Eilman. He accepted

at face value Eilman’s statement that she did not

require mental-health care (even though Eilman cried

and chanted rap lyrics during Berglind’s interview of

her) and that the pills in her possession were for the

control of acne. Actually they were for the control of

her bipolar disorder. Berglind did not perform an independent check, though it should have been possible to

look up the function of the drugs Eilman was carrying.

It is unclear, however, whether Berglind saw the medicine bottles himself; they may have been confiscated by Officer Delia, who is not a defendant. Berglind

recommended against summoning a physician or psychiatrist to examine Eilman. Because, as we have already

explained, the reasonableness of that conclusion concerns the merits rather than the existence of a clearly

established right, Berglind is not entitled to qualified

immunity. The possibility that Berglind’s superiors
20 No. 10-1487

would not have called medical assistance even if

Berglind had recommended it also is a question on the

merits rather than a basis of qualified immunity.

Carson Earnest, a lieutenant at the Eighth District,

was the watch commander and had ultimate responsibility for detainees’ safety and welfare. He received

conflicting recommendations: Cason told him that

Eilman needed a psychiatric evaluation, and Berglind

told him that she didn’t. He sided with Berglind. It is

not clear whether Earnest observed any of Eilman’s

strange conduct. Earnest treated the call from Eilman’s

father as a prank; the record does not show why.

Although Johnson v. Jones puts such factual issues offlimits on an interlocutory appeal, each defendant is

entitled to have the district court decide whether he or

she violated clearly established rights. On remand, the

district court should conduct whatever proceedings

are appropriate to determine whether, taking the facts

in the light most favorable to Paine, Earnest violated

Eilman’s clearly established right to medical care

while she was at the Eighth District. Earnest can be

liable only for what he did; there is no doctrine of supervisory liability for the errors of subordinates such

as Berglind. See Ashcroft v. Iqbal, 556 U.S. 662, 676–77

(2009).

Teresa Williams, the lockup keeper at the Second

District, had a role parallel to Berglind’s. Like him, she

concluded and told her superiors that Eilman did not

require medical care. Like Berglind, she is not entitled to

qualified immunity.
No. 10-1487 21

Pamela Smith was a watch officer at the Second District. She received one of Paine’s calls and did

nothing in response; she did not even note the call in

the log. She was responsible for preparing Eilman’s

individual-recognizance bond and collecting the possessions that were to be returned on her release. She is

potentially liable under both the failure-to-treat and

the augmented-danger-on-release theories, and not

entitled to qualified immunity on either theory.

Pauline Heard was a lockup officer (apparently a subordinate of Williams) at the Second District. She does

not appear to have been responsible for either evaluating

Eilman’s need for medical care or making the decision

to release her. Paine emphasizes, as the basis of

Heard’s liability, the fact that she pointed Eilman

toward 51st Street after her release. Providing walking

directions to someone who has already been released

on bond does not violate clearly established rights

under either the failure-to-treat theory or the augmenteddanger theory. Unless the record has other facts that

the parties have not discussed, Heard is entitled to qualified immunity.

Sharon Stokes, a detention aide at the Second District,

inventoried Eilman’s possessions and found the psychotropic medication. She concluded from Eilman’s

conduct that Eilman “appeared to be irrational” but did

not tell her superiors about this conclusion, or about

the drugs. She is potentially liable on the failure-totreat theory and not entitled to qualified immunity.
22 No. 10-1487

Cynthia Hudson, a detention aide at the Second

District, was responsible for evaluating inmates. Hudson

observed Eilman behaving in a mentally unstable way,

such as smearing menstrual blood on her cell walls,

and Hudson transferred another person out of Eilman’s

cell because of Eilman’s inappropriate behavior. Yet

she did nothing to alert other personnel at the stationhouse (or so a trier of fact could conclude). She is not

entitled to qualified immunity on the failure-to-treat

theory. (She was not involved in Eilman’s release.)

Catonia Quinn, another detention aide, had the same

duties as Hudson. Like Hudson, Quinn saw Eilman

behave in ways that suggested the need for mentalhealth care. Like Hudson, Quinn did not pass this information to those responsible for making decisions. She

is not entitled to qualified immunity on the failure-totreat theory.

Benita Miller, the desk sergeant at the Second

District who ignored a call from Paine and made the

decisions not to provide Eilman with medical

assistance and to release her without any assistance in

getting out of the neighborhood, prevailed in the

district court and is not an appellant. 2008 U.S. Dist.

LEXIS 91575 at •27–38 (N.D. Ill. Nov. 8, 2008). We do not

express any view on whether this part of the district

court’s decision is sound; resolution of Miller’s situation

must await an appeal from the final decision.

The narration in this opinion has taken the facts in

the light most favorable to Paine; only a trial can

determine whether any of the non-immune defendants
No. 10-1487 23

is liable. Similarly, a trial would be needed to examine

any justifications the defendants may offer for their

behavior and any explanations they have for the

apparent failure to refer Eilman to a physician or do

anything to mitigate the risks she faced when she

was turned out the door. The district court’s decision

is affirmed with respect to six of the appellants,

reversed with respect to two, and remanded for proceedings consistent with this opinion with respect to

the remaining two.

4-26-12