Williams v. City & County of Denver

STEPHEN H. ANDERSON, Circuit Justice,

dissenting in part, concurring in part:

The majority opinion attempts to clarify the appropriate standard in this circuit for a substantive due process violation by stating that the defendant must act with reckless intent and that the conduct must “shock the conscience.” While I agree that Collins v. City of Harker Heights, 503 U.S. 115 , 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992), indicates that a substantive due process violation requires arbitrary government conduct which shocks the conscience, the majority’s statement of and application of the standard in this ease leaves the law in this circuit confused and uncertain. In particular, in evaluating the conduct of the officer, to determine whether it is conscience shocking, the majority has incorporated a subjective state of *1022 mind component. While state of mind may be relevant to an evaluation of responsibility for a constitutional violation, it is simply irrelevant when the issue is whether government conduct is so arbitrary as to be conscience-shocking. 1 Furthermore, I do not agree with the majority’s application of the standard to the facts of this case. I therefore dissent from section IIA of the majority opinion, in which the majority holds that the standard for a substantive due process violation is whether the officer, with reckless intent, engages in conscience-shocking conduct and further holds that Officer Farr’s conduct met that standard. I concur in the remainder of the majority opinion, except I concur in the result only in section IIC.

As we have observed, “conscience-shocking” behavior “cannot precisely be defined, but must necessarily evolve over time from judgments as to the constitutionality of specific government conduct.” Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.1995), cert. denied, — U.S. -, 116 S.Ct. 924 , 133 L.Ed.2d 853 (1996). We do know, however, that it is a very high standard, requiring a high degree of culpability. Indeed, in Uhlrig we stated that:

[T]o satisfy the “shock the conscience” standard, a plaintiff must do more than show that the government .actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power. That is, the plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking. ... We do know ... that the “shock the conscience” standard requires a high level of outrageousness, because the Supreme Court has specifically admonished that a substantive due process violation requires more than an ordinary tort and that merely allowing unreasonable risks to persist ... is not necessarily conscience shocking.

Id. (emphasis added); see also Abeyta v. Chama Valley Indep. Sch. Dist., No. 19, 77 F.3d 1253 , 1256-57 (10th Cir.1996) (in discussing whether corporal punishment at school can violate substantive due process, we asked “ “whether the force applied caused injury so severe, was so disproportionate to the need presented, and was so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience’ ”) (quoting Garcia ex. rel. Garcia v. Miera, 817 F.2d 650, 655 (10th Cir.1987), cert. denied, 485 U.S. 959 , 108 S.Ct. 1220 , 99 L.Ed.2d 421 (1988)); Liebson v. New Mexico Corrections Dep’t, 73 F.3d 274 , 276 (10th Cir.1996) (quoting Uhlrig ). 2 In Uhlrig , we found no consti *1023 tutional violation under the “shock the conscience” standard because the “[defendants did not engage in any conduct that was so egregious, outrageous and fraught with unreasonable risk so as to shock the conscience.” Uhlrig, 64 F.3d at 576 . See also Temkin v. Frederick County Comm’rs, 945 F.2d 716, 720 (4th Cir.1991) (describing conduct which shocks the conscience as conduct which “ ‘amount[s] to a brutal and inhumane abuse of official power literally shocking to the conscience.’ ”) (quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980)), cert. denied, 502 U.S. 1095 , 112 S.Ct. 1172 , 117 L.Ed.2d 417 (1992).

The majority holds that the conduct of Officer Farr could be viewed as conscience-shocking. I disagree. As the majority states, the facts establish that at approximately 4:00 a.m., Officer Farr, in response to a request from another officer to back up the arrest of a ear thief, drove down a major Denver boulevard at 60 m.p.h. in a 35 m.p.h. zone, with his overhead lights flashing but without his siren on, entered an intersection against a red light and struck the decedent’s vehicle. While undeniably tragic, certainly negligent (perhaps grossly so), and reckless, a comparison of the facts of this case to other eases from our own and from other circuits demonstrates that these tragic facts by no means meet the high level of culpability necessary to shock the conscience in the constitutional sense.

I begin with Apodaca v. Rio Arriba County Sheriff’s Dep’t, 905 F.2d 1445 (10th Cir.1990), the case upon which the district court relied to conclude as a matter of law that Officer Farr’s conduct was not unconstitutional. In Apodaca, the facts were that:

[Deputy] Romero was driving 55-65 miles per hour around a blind curve on which the regular speed limit was 35 miles per hour. It was after midnight, and had been raining and sleeting. Romero was not using his siren or flashing lights. [Plaintiffs decedent] was making a left turn out of the restaurant parking lot, when Romero rounded the curve and crashed into her car broadside.

Id. at 1446. We held that such conduct was negligent, and therefore did not rise to the level necessary for a § 1983 violation. Id. at 1447.

The majority strains to distinguish Apoda-ca, noting that the speeding officer in Apoda-ca had the right of way when he collided with the plaintiffs decedent, unlike Officer Farr who drove through a red- light, that “Officer Farr was driving in violation of both state law and Department requirements governing emergency driving,” maj. op. at 1016, and that the officer in Apodaca was responding to a burglary in progress, while Officer Farr had been requested on a non-emergency basis to back up the arrest of a car thief. In my view, those distinctions are very thin. While the officer in Apodaca did indeed have the right of way, he was also rounding a curve at almost double the posted speed limit, in wet and dangerous road conditions, with neither his siren nor his flashing lights in use. While he technically had the right of way when the accident occurred, his conduct is hardly less reckless or likely to cause an accident than was Officer Farr’s in running a red light at also almost double the posted speed limit, but in dry, and presumably safer, driving conditions, and with his overhead lights flashing. The majority concedes that the fact that Officer Farr was driving in violation of both state law and Department requirements governing emergency driving is “not dispositive of the constitutional issue,” id., nor should it be. It is not clear whether the officer in Apodaca was likewise in violation of applicable state and departmental requirements, but it is hard to imagine that he was in complete compliance when he rounded a curve at high speed in wet weather without using either his siren or flashing lights. Finally, the difference between responding to a silent burglar alarm at an automobile dealership {Apodaca) and providing back-up to an arrest of a car thief is minute, at best.

*1024 More importantly, such fíne distinctions cannot elevate essentially similar police behavior from negligent conduct to conduct so culpable and inappropriate as to literally shock the conscience and violate the Federal Constitution. As the Fourth Circuit observed in a ease involving more egregious facts than those in this case, the officer’s conduct “while disturbing and lacking in judgment” falls short of being conscience-shocking. Temkin, 945 F.2d at 723 .

The majority attempts to rationalize its conclusion by shifting the focus away from the officer’s conduct, and inquiring into his state of mind. Thus, the majority asserts that the evidence here “supports an inference that Officer Farr was speeding for speeding’s sake, deliberately engaging in unjustified conduct that posed a great risk of harm to those in his path.” Maj. op. at 1017. By conflating the deliberateness aspect of a § 1983 action with the standard necessary to establish an actual substantive due process violation, the majority confuses more than it clarifies. When we consider whether the officer’s conduct violated the substantive due process clause of the constitution, we must assess that conduct objectively: is it such arbitrary government conduct as to shock the conscience? Collins, 503 U.S. at 126 , 112 S.Ct. at 1069 . Whether the officer’s “mindset” was to speed, or to run red lights, or to drive without his siren and/or lights on, is utterly irrelevant to whether his conduct was so offensive to our fundamental notions of decency as to shock the conscience. 3

Other cases from other circuits support my view that Officer Farr’s conduct falls far short of the shock the conscience standard. See, e.g., Fagan v. City of Vineland, 22 F.3d 1296, 1300, 1307 (3d Cir.1994) (en banc) (finding no violation where police officer went on a high-speed chase in a residential neighborhood, disregarded traffic signs and signals, and where suspect’s car ran a red light and collided with another car); Temkin, 945 F.2d at 718, 723 (finding no constitutional violation under the “shock the conscience” standard where officer observed suspect spinning wheels at gas station, gave chase with lights and sirens activated, proceeded along two-lane highway with varying population densities at high speeds (from 65 to 105 m.p.h.), where there were lots of cars and people along one part because of a carnival, where pursuing officer found out that the suspect had only stolen $17.00 worth of gas, where the chase violated departmental policy, and where both ears failed to negotiate a curve and hit plaintiffs car); Roach v. City of Fredericktown, 882 F.2d 294, 297 (8th Cir.1989) (finding collision resulting from officer’s high-speed pursuit of vehicle with mismatched plates does not rise to level of gross negligence); Jones v. Sherrill, 827 F.2d 1102, 1107 (6th Cir.1987) (finding no § 1983 violation when officers drove 120-125 m.p.h. in traffic within city limits and suspect’s car crossed centerline and collided with plaintiffs husband’s car); Cannon v. Taylor, 782 F.2d 947, 950 (11th Cir.1986) (finding no § 1983 violation where police officer, responding to an emergency call, drove at a speed of 46 m.p.h. in a 30 m.p.h. zone within city limits, without flashing lights or siren, and struck plaintiff as she drove through an intersection); Smith v. Lexington Fayette Urban County Gov’t, 884 F.Supp. 1086, 1094 (E.D.Ky.1995) (finding no constitutional violation under “shocks the conscience” standard where “police officers initiated a high-speed pursuit of a suspected DUI at close distances, in the city limits where there was vehicular and pedestrian traffic, in disregard of traffic signals, and ... the police officers failed to use their emergency equipment, in violation of police department regulations, policy and law”); Magdziak v. Byrd, No. 94C1876, 1995 WL 704394 , at *5 (N.D.Ill. Nov.29, 1995) (finding no violation under “shocks the conscience” standard where “de *1025 fendant ... engaged in a highspeed pursuit [without operating his siren or lights] on an expressway at 3:00 a.m- [and] the pursued vehicle turned off 1-290 on an exit ramp, ignored a red light, and collided with plaintiffs decedent”), aff'd, 96 F.3d 1045 (7th Cir.1996); cf. Wood v. Ostrander, 879 F.2d 583, 588, 596 (9th Cir.1989) (finding plaintiff stated a claim for a § 1983 violation when police stranded plaintiff in a dangerous neighborhood at night and she was subsequently raped), cert. denied, 498 U.S. 938 , 111 S.Ct. 341 , 112 L.Ed.2d 305 (1990); White v. Rockford, 592 F.2d 381 , 385-86 (7th Cir.1979) (finding plaintiff stated a claim for a § 1983 violation when police left small children unattended in abandoned car after arresting driver).

In sum, my survey of the case law reveals that courts very rarely find that the operation of a police vehicle in the performance of official duties shocks the conscience in the constitutional sense. The majority does not even attempt to cite cases where the court has found such conduct to be conscience-shocking. I have provided a partial list of eases where courts have specifically found such conduct is not conscience-shocking. The reason for this is obvious: courts demand a very high level of culpability before they will conclude that police performing their duties, albeit negligently, carelessly, or recklessly, have violated the substantive due process clause of the constitution. See Hill v. Shobe, 93 F.3d 418, 421 (7th Cir.1996) (“[M]otor vehicle accidents caused by public officials or employees do not rise to the threshold of a constitutional violation actionable under § 1983, absent a showing that the official knew an accident was imminent but consciously and culpably refused to prevent it.”).

Additionally, a survey of state law cases reveals why so few of these high-speed policy pursuit cases succeed in federal court — they are typical negligence/gross negligence state tort law cases brought typically, and appropriately, in state court. See, e.g., Natseway v. City of Tempe, 184 Ariz. 374 , 909 P.2d 441 (App.1995); Urban v. Village of Lincolnshire, 272 Ill.App.3d 1087 , 209 Ill.Dec. 505 , 651 N.E.2d 683 , appeal denied, 163 Ill.2d 591 , 212 Ill.Dec. 440 , 657 N.E.2d 641 (1995); Pletan v. Gaines, 494 N.W.2d 38 (Minn.1992); Peoples v. Conway, 897 S.W.2d 206 (Mo.Ct.App.1995); Canico v. Hurtado, 144 N.J. 361 , 676 A.2d 1083 (1996); Clark v. Burke County, 117 N.C.App. 85 , 450 S.E.2d 747 (1994); Black v. Shrewsbury Borough, 675 A.2d 381 (Pa.Commw.Ct.1996); Harris County v. Ochoa, 881 S.W.2d 884 (Tex.Ct.App.1994); Estate of Cavanaugh v. Andrade, 550 N.W.2d 103 (Wis.1996); see also, Haynes v. Hamilton County, 883 S.W.2d 606, 612-13 (Tenn.1994) (collecting cases).

Finally, I note that the Ninth Circuit has recently defined gross negligence as follows:

A person acts with gross negligence when the person intentionally acts unreasonably with regard to a known risk or acts unreasonably with regard to a risk so obvious that the person must be assumed to have been aware of it. And the magnitude of the risk is such that it is highly probable that harm will follow.

L.W. v. Grubbs, 92 F.3d 894, 899 (9th Cir.1996). At most, Officer Farr’s conduct meets that description. I would hold that Officer Farr’s conduct, while negligent, perhaps grossly so, does not amount to the kind of arbitrary conduct which shocks the conscience in a constitutional sense. I therefore dissent from section IIA.

. The Supreme Court and we have frequently said that § 1983 liability requires deliberate conduct by a state actor. See, e.g., Collins v. City of Barker Heights, 503 U.S. 115 , 127 n. 10, 112 S.Ct. 1061 , 1069 n. 10, 117 L.Ed.2d 261 (1992) (" 'Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property.’ ") (quoting Daniels v. Williams, 474 U.S. 327, 331 , 106 S.Ct. 662, 665 , 88 L.Ed.2d 662 (1986)); City of Canton v. Harris, 489 U.S. 378, 389 , 109 S.Ct. 1197, 1205 , 103 L.Ed.2d 412 (1989) (" 'Municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives' by city policymakers.”) (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483-84 , 106 S.Ct. 1292, 1300 , 89 L.Ed.2d 452 (1986) (plurality opinion)); Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir.1995) (" ‘[L]iability under § 1983 must be predicated upon a "deliberate " deprivation of constitutional rights by the defendant,' and not on negligence.”) (quoting Woodward v. City of Worland, 977 F.2d 1392, 1399 (10th Cir.1992), cert. denied, 509 U.S. 923 , 113 S.Ct. 3038 , 125 L.Ed.2d 724 (1993)).

. The majority believes it “puzzling” that I question the propriety of inquiring into the officer’s subjective state of mind when evaluating the officer’s conduct. While not explicitly stating so, the majority relies upon language from Garcia to support its view. Garcia itself qualifies its use of the term “malice or sadism”:

While this standard incorporates a subjective intent element of "malice or sadism," this element is largely redundant, because whenever “the force applied caused injury so severe, was so disproportionate to the need presented, and ... amounted to a brutal and inhumane abuse of official power literally shocking to the conscience,” we should presume that the defendant had the requisite state of mind.

Garcia, 817 F.2d at 655 n. 7 (quoting Hall v. Tawney, 621 F.2d 607, 613 (4th Cir.1980)). Even under Garcia, in which the conduct in question was the beating of a young student by school personnel, it is the nature and quality of the conduct which is important. If the conduct is egregious enough, the requisite malicious state of mind will simply be presumed. That is different from speculating about an officer’s state of mind *1023 while driving his car in the performance of his duties, and determining whether that state of mind somehow transforms his conduct into a constitutional violation. To have the same “malicious and sadistic” state of mind in a high-speed police pursuit as a teacher would have when beating a student, the officer's state of mind would be virtuaEy suicidal — maliciously and sadistically hoping to get into a wreck with another car, thereby potentially killing himself.

. My view that the officer's conduct must be viewed objectively, without regard to his state of mind in determining whether a substantive constitutional violation has occurred, finds support in other contexts where the Supreme Court has declared the subjective intent of the officer irrelevant. See, e.g., Whren v. United States, - U.S. -, -, 116 S.Ct. 1769, 1774 , 135 L.Ed.2d 89 (1996) ("Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”); cf. Wilson v. Seiter, 501 U.S. 294, 299 , 111 S.Ct. 2321, 2324 , 115 L.Ed.2d 271 (1991) ("These cases mandate inquiry into a prison official’s state of mind when it is claimed that the official has inflicted cruel and unusual punishment.").