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The Nevada Supreme Court building in Carson City as seen on Monday, Aug 14, 2017. (Jeff Scheid/The Nevada Independent)

The Nevada Supreme Court will allow a Las Vegas woman to continue her negligence lawsuit against two Las Vegas police officers and the Palms Resort and Casino over a 2011 arrest that resulted in her receiving severe burns while being detained on hot asphalt.

An opinion by the court released on Thursday reversed a lower court’s decision and will allow Cristina Paulos, an artist based in Las Vegas, to continue long-running litigation against a Las Vegas Metropolitan Police officer and the casino resort, in spite of similar claims being partially rejected by a federal court.

The court’s decision is focused more on the legal process and does not seek to answer questions about whether police detaining someone on hot asphalt temporarily violates a constitutional right. 

According to documents filed with the court, Paulos had a “mental health episode” while driving in front of the Palms in August 2011, causing two car accidents. She then left her car and tried to enter the driver’s side of a car she had hit, leading the driver to tell a responding police officer that she was attempting to steal the vehicle. 

After a verbal back-and-forth, Paulos “lunged” at the officer, who took her to the ground and arrested her on top of hot asphalt, calling a Palms security guard for backup. Paulos, who resisted arrest, was on the asphalt for approximately five minutes before being moved to a grassy area after backup officers arrived. 

Paulos was cited but never charged for driving while intoxicated and was taken to a hospital where doctors determined she had suffered second-and-third degree burns on her body and face that required “multiple” skin-removal and skin-graft surgeries. 

Paulos sued the police department, the Palms, the arresting officer and the assisting hotel security guards in August 2012 on several claims including negligence, false imprisonment and excessive force in violation of the Fourth Amendment (prohibiting unreasonable searches and seizures). 

The case was remanded to federal court, where a judge ruled against Paulos and dismissed claims against both officers through determining they were immune from the lawsuit due to qualified immunity — a legal doctrine that prevents government employees from being sued for performing discriminatory actions in their official capacity unless they violate clearly established law or constitutional rights.

In the order, the judge determined that the officers had not used excessive force in arresting Paulos and that even if they had, no legal remedy was available because “there is no clearly established right against being restrained on hot asphalt for a brief period of time.” The Ninth Circuit Court of Appeals upheld the decision based solely on the second part of the decision, that no case law existed that “clearly” established holding someone on hot asphalt constituted excessive force.

Prior to the decision by the federal appeals court, Paulos refiled several of her claims in state court, but was again rejected by a judge who ruled against her while citing the decision reached by the federal court. 

In the state Supreme Court’s unanimous order, Justice James Hardesty wrote that the District Court Judge Rob Bare erred in dismissing Paulos’s claims because the federal appeals court did not reach a “final judgement” as to whether the officer’s conduct violated constitutional rights. Because the question of whether or not actions by the officers violated constitutional rights was not settled, Hardesty wrote that it was improper for the District Court to summarily dismiss all claims made by Paulos.

Similarly, the order reversed the decision and remanded the Palms and the security guard back to the district court, saying that they were not covered by governmental immunity because they are in the private sector.

But the court’s order upheld one part of the lower court’s order allowing the police department itself to avoid further litigation, essentially adopting and using a U.S. Supreme Court test on assessing whether or not government actions involved abused discretion.

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