# White v. Rochford > Court of Appeals for the Seventh Circuit · February 13, 1979 · 592 F.2d 381 URL: https://www.frixlaw.com/law-library/cases/8908815 ## Case - **Full name:** Eugene WHITE, Shirley White, Barbara McDowell, a minor by Eugene White, her father and next friend and Ramon White, a minor by Eugene White, his father and next friend v. James M. ROCHFORD, Superintendent of Police, City of Chicago, P. J. Gleason, Frank Shannon, and R. Walsh, individually and as Police Officers of the City of Chicago - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** February 13, 1979 - **Citations:** 592 F.2d 381 - **Precedential status:** Published - **Opinion:** Concurrence by Kilkenny - **Judges:** Kilkenny, Sprecher, Tone - **Cited by:** 184 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8908815 ## How later opinions describe it (automated extraction) - holding that police officers were not entitled to qualified immunity where they had arrested the uncle of three minor children, leaving the children stranded in the car on a busy eight-lane expressway, and could not have avoided knowing of the danger to the children - holding that Due Process Clause was violated where “police officers ... abandoned] children and [left] them in [a] health-endangering situation ] after having arrested their custodian and thereby deprived them of adult protection” - finding Due Process Clause violation where "unjustified and arbitrary refusal of police officers to lend aid to children endangered by the performance of official duty ... ultimately result[ed] in physical and emotional injury to the children" - reversing order of dismissal and holding that plaintiffs, on behalf of three minor children, stated an actionable § 1983 claim where a police officer pulled over the children’s uncle with whom the children were riding, arrested him for drag racing, and left the children strand… ## Opinion text KILKENNY, Senior Circuit Judge, dissenting: 1 Although, with one exception, 2 I have no real dispute with Judge Sprecher’s statement of the facts, nevertheless, I would prefer to preface my analysis with my own statement. This is an appeal from an order of the district court dismissing the appellants’ civil rights complaint against the appellees on the ground that “the acts complained of do not, in the court’s opinion, rise to the level of a constitutional claim.” The first count in appellants’ complaint alleges a deprivation of their rights, privileges and immunities secured by the First, Fourth, Fifth and Fourteenth Amendments to the Constitution and 42 U.S.C. § 1983 of the Civil Rights Act. The 42 U.S.C. § 1985 claim mentioned in the count is not pressed on this appeal. Count Two of the complaint alleges the common law tort of false imprisonment and Count Three charges the common law tort of intentional infliction of emotional distress. Both are pendant to Count One. THE COMPLAINT The complaint alleges, among other things, that on October 24, 1976, appellants Barbara McDowell and Ramon White, minors, and Cheri Bellanger, also a minor, were riding in an automobile driven by their uncle, Charles DeGeorge, on the Chicago Skyway, an eight lane, high speed, controlled access freeway. While so riding, their uncle was ordered to pull over to the parking lane by police officers, Gleason and Shannon, and was there arrested for drag racing. In performing this function, the officers left their marked vehicle with revolvers drawn and asked DeGeorge to remove himself from the automobile. Further, the complaint alleges that DeGeorge asked the appellees to take the minor children in the automobile to a phone booth so the children could contact their parents. The officers refused this request. Instead, it is charged, they knowingly and intentionally left the three minor children, none of whom could drive, in the parked vehicle. It is claimed that the children were left stranded without heat, water, or any nour *389 ishment for about one hour. Subsequently, at night, under exposure from the cold, the minor appellants and Bellanger left the automobile in search of a telephone and made their way through the moving traffic on the Skyway, risking death, serious bodily harm, and molestation, believing that their only alternative was spending the night alone without protection in a cold automobile. Upon reaching a telephone, it is alleged, Barbara McDowell called her mother, but was unable to supply information on her exact location. The mother, who was without an automobile, then called the Chicago Police Department for help, but help was refused. The Police Department, it is alleged, refused to lend any assistance whatsoever even to the extent of using a radio squad car which was already assigned to the vicinity. It is charged that, as a result of these acts by the police officers, appellants Ramon White and Barbara McDowell suffered great mental pain and anguish. Ramon is a five year old boy afflicted with asthma who, allegedly, as a result of being exposed to the cold for a prolonged period, was confined for one week in a hospital, was absent from school, and at the time of the filing of the complaint was under outpatient care. This exposure forced the appellants’ parents to incur substantial obligations for doctors’ fees and medical treatment. All of the foregoing is charged in Count One. ISSUE The issue on appeal is: Does the intentional abandonment of three (3) minors on the highly travelled Skyway by police officers acting under these circumstances give rise to grounds upon which relief may be granted under 42 U.S.C. § 1983 ? DISCUSSION At the outset, I observe that the complaint does not challenge the validity of the officers’ action in stopping, arresting and taking appellants’ uncle into custody for drag racing. In the absence of such an allegation, I must assume the legality of the arrest and detention. Also, contrary to Judge Sprecher’s inferences, there is no allegation in the pleadings that the officers knew that Ramon was an asthmatic. Moreover, what occurred after the phone call is immaterial to the appellants’ § 1983 claim. If the claim is valid, it must be grounded upon the theory that the officers should not have left appellants and their companion in the parked vehicle at night on the extremely busy Skyway, well knowing that the children would have to risk injury crossing a busy artery of traffic in order to reach a telephone. We are cited to no Civil Rights Act authority, and we find none, which is even closely akin factually to this background. Appellants charge appellees with violations of their civil rights in the following areas: I. Interference with their right to travel in interstate commerce, II. Interference with their right to liberty, and with family integrity, and III. Interference with their right to be free from intimidation and coercion. I. The charge that appellees interfered with appellants’ right to travel in interstate commerce is clearly without merit. Appellants voluntarily chose to ride with their uncle who was legally arrested and detained for unlawful drag racing. The fact that the minors were left unattended in the vehicle and were forced to cross the dangerous Skyway does not bootstrap the officers’ arrest and detention of DeGeorge into a violation of appellants’ constitutional right to travel in interstate commerce. Surely, the fact that appellants were minors does not supply the missing link. Adults who could not drive would be in the same position as the minors and would be subject to the same risk. If there was interference with appellants’ right to travel in interstate commerce, that action was supplied by their uncle in failing to obey the law. I find nothing in the Constitution nor in the re *390 ported decisions of this circuit or others which requires officers making a legal arrest of the driver of a vehicle to assume his responsibility for those who may be riding with him or voluntarily undertake to escort them to a telephone or to a safe place off the Skyway. As I view it, the appellants’ rights on the Chicago Skyway were no greater than the rights of minors similarly situated on any non-access freeway in the United States. II. My statements and conclusions with reference to appellants’ contention I are equally applicable to appellants’ claim that they were illegally detained and deprived of their liberty. It was the illegal action of their uncle in drag racing on the Skyway, rather than the actions of the officers, that left the appellants unattended in the vehicle. For that matter, the appellants were left in no worse position than they would have been if the motor of the vehicle had failed and they were forced to wait on the Skyway until they decided to seek assistance. The liberties of the appellants under the Fourteenth Amendment, or other constitutional provisions, were in no way violated by the officers. III. My analysis and conclusions on appellants’ contentions one and two fully answer the appellants’ claim that the officers interfered with their right to be free from coercion and intimidation. The most that can be said of the non-conclusory allegations of appellants’ Count One is that appellants were passengers in an automobile driven by their uncle on the Chicago Skyway and that while so driving he was lawfully arrested for drag racing. As a consequence, he requested the officers to take them to a telephone which request was refused. They were left in the automobile and were forced to cross the dangerous Skyway to get to a telephone. As previously stated, I can find nothing in the actions of the officers which violated a constitutional right of the appellants. They were in no worse position than would be any other person left stranded in a vehicle on a freeway and forced to cross the lanes of traffic of the freeway in order to obtain help. In any event, their predicament was caused by their uncle’s reckless conduct and his responsibility for them did not shift to the appellees upon his arrest. These contentions are groundless. APPLICABLE LAW My analysis of the complaint disregards arguments and inferential or legal conclusions. Shakman v. Democratic Organization of Cook County, 435 F.2d 267, 270 (CA7 1970), cert. denied 402 U.S. 909 , 91 S.Ct. 1383 , 28 L.Ed.2d 650 (1971); Hess v. Petrillo, 259 F.2d 735 (CA7 1958), cert. denied 359 U.S. 954 , 79 S.Ct. 743 , 3 L.Ed.2d 761 (1959). To state a claim under 42 U.S.C. § 1983 , appellants must allege conduct depriving them of their rights, privileges, or immunities secured by the Constitution and laws of the United States. Further, they must allege that the appellees subjected the appellants to this deprivation while acting under the color of state law. Monroe v. Pape, 365 U.S. 167, 172 , 81 S.Ct. 473 , 5 L.Ed.2d 492 (1961). APPELLANTS’ CASES The authorities cited by appellants are wide of the mark. In no way do they support appellants’ principal claims that they were deprived of their constitutional rights to liberty, non-interference with family affairs or freedom to travel in interstate commerce. They cite a number of cases which discuss the principles of “liberty under law” and attempt to apply those cases to the record before us. For example, appellants argue that Williams v. Fears, 179 U.S. 270 , 21 S.Ct. 128 , 45 L.Ed. 186 (1900), applies. True enough the Williams Court recognized a person’s right to move from one place to another according to inclination, that this was an attribute of personal liberty and that ordinarily such a right is one secured by the Fourteenth Amendment and other provisions of the Constitution. *391 However, in its final analysis the Court held that the General Revenue Act of the State of Georgia, which levied a specific tax on a person engaged in hiring laborers to be employed beyond the limits of the state, did not amount to an interference with the freedom of transit or in any manner violate the Constitution. 179 U.S. at 278 , 21 S.Ct. 128 . There is nothing in Williams to indicate that the actions of the officers in this case in any way constitutionally interfered with the liberty of appellants or with their right to travel in interstate commerce. In the same vein, the appellants rely heavily upon the broad language of the Supreme Court in Meyer v. Nebraska, 262 U.S. 390 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923), where the Supreme Court, in holding invalid a Nebraska statute prohibiting the teaching of modern languages, other than English, in a private or public school, said: “While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” 262 U.S. at 399 , 43 S.Ct. at 626 . Of course, we must read this language in the light of the factual background before us. Again, I find nothing in this language which would indicate that the constitutional liberty of a passenger in a vehicle on a freeway is interfered with when the driver of the automobile is lawfully stopped, arrested, removed, and taken into custody for illegal use of the freeway. Despite the fact that appellants were not arrested, nor in any way the focal point of the officers’ actions, they rely heavily on Jenkins v. Averett, 424 F.2d 1228 (CA4 1970). Jenkins, a Negro, was involved in a street fracas between whites and blacks in Asheville, North Carolina. Averett, an Asheville police officer, arrived on the scene and spotted Jenkins running with an object (tire tool) in his hand. Averett pursued Jenkins thinking the object was a gun and yelled “Halt.” Jenkins stopped immediately and Averett in lowering his gun claimed he accidentally pulled the trigger, the bullet striking Jenkins in the thigh. In the § 1983 action growing out of the affair the district court held that Averett was guilty of gross or culpable negligence, but that such negligence could not serve as a basis for recovery under § 1983. The court of appeals reversed, holding that Averett’s action under color of state law was an arbitrary intrusion upon Jenkins’ rights of privacy and liberty and that the injuries arbitrarily inflicted by the police were constitutionally cognizable and remediable. In contrast, the police here took no positive action toward appellants, either arbitrary or otherwise. True enough, the complaint charges the officers with illegal conduct to the injury of appellants and that such conduct deprived appellants of their rights, privileges, and immunities secured by the First, Fourth, Fifth and Fourteenth Amendments. However, there is no factual charge or allegation showing in what manner any state action directly invaded the constitutional rights of the appellants as occurred in Jenkins and Meyer . Stripped of the excess verbiage, the complaint merely shows that the driver of the vehicle, the appellants’ uncle, was lawfully arrested for drag racing on the Skyway and that appellants were left sitting in the automobile, parked on the Skyway. In no way does the decision in Jenkins apply to the facts before us. I have studied Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968); Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886 , 81 S.Ct. 1743 , 6 L.Ed.2d 1230 (1961); Bolling v. Sharpe, 347 U.S. 497 , 74 S.Ct. 693 , 98 L.Ed. 884 (1954); Pritchard v. Perry, 508 F.2d 423 (CA4 1975), and other cases cited by appellants, including the district court cases of Willis v. Tillrock, 421 *392 F.Supp. 368 (N.D.Ill.1976), and Alsager v. District Court of Polk County; Iowa, 406 F.Supp. 10 (S.D.Iowa 1975), and find them no more akin to our state of facts than those upon which we have specifically commented. In my view, the recent case of Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976), although distinguishable on the facts, is much more in point than the cases cited by appellants. In Paul , the claimant grounded his § 1983 action upon defendants’ publication of a “flyer” carrying the phrase “active shoplifters” at the head of the page and claimant’s name and photograph underneath. He charged that this action impermissibly deprived him of his “liberty” protected by the Fourteenth Amendment, and because the defendants were acting as officials of the city and county governments the nature of the complaint was thus changed from defamation under state law to an action for deprivation by the state of constitutional rights secured by the Fourteenth Amendment. In rejecting the claim, the Supreme Court commented that such a construction would necessarily result in nearly every legally cognizable injury, which might have been inflicted by a state official acting under “color of law,” establishing a violation of the Fourteenth Amendment rights of the victim. I quote from Paul : “Respondent, however, has pointed to no specific constitutional guarantee safeguarding the interest he asserts has been invaded. Rather, he apparently believes that the Fourteenth Amendment’s Due Process Clause should ex proprio vigore extend to him a right to be free of injury wherever the State may be characterized as the tortfeasor. But such a reading would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States. We have noted the ‘constitutional shoals’ that confront any attempt to derive from congressional civil rights statutes a body of general federal tort law, Griffin v. Breckenridge, 403 U.S. 88, 101-102 [ 91 S.Ct. 1790, 1797-98 , 29 L.Ed.2d 338 ] (1971); a fortiori, the procedural guarantees of the Due Process Clause cannot be the source for such law.” 424 U.S. at 700-701 , 96 S.Ct. at 1160 . [Emphasis supplied.] Here, as in Paul , the appellants point to no specific constitutional guarantee safeguarding the interests which they assert have been invaded. As long ago as 1945, Justice Douglas in Screws v. United States, 325 U.S. 91 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945), observed: “Violation of local law does not necessarily mean that federal rights have been invaded. The fact that a prisoner is assaulted, injured or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States.” 325 U.S. at 108-09 , 65 S.Ct. at 1039 . There, the Justice was commenting upon the effect of the criminal counterpart of § 1983. Accordingly, even though the complaint charged that the officers were violating state law at the time of the arrest and detention, it would not necessarily mean that federal rights had been in any way invaded. The majority, by implication, imagination, or otherwise paints a portrait which finds no support in the record. The cases cited do not fit our facts. These cases involve state or government agency action directed at a particular person whom the agency or officer has either taken into custody or over whom they have asserted responsibility. Nowhere does the majority face up to the distinction which I make as to the duty owed to the uncle, once arrested, and the absence of duty to the children against whom no action was taken. Recognizing that the common law and the decisional law of the courts of the State of Illinois hold that acts of omission of an officer can serve as a basis for liability only where there is “an affirmative duty to act,” Byrd v. Brishke, 466 F.2d 6 (CA7 1972) (Opinion, P. 7), and Huey v. Barloga, 277 F.Supp. 864 (DC ND Ill.1967), Judge *393 Sprecher attempts to overcome this rule by citing Ill.Rev.Stat. ch. 23, § 2368 (1975), as imposing an affirmative duty on the officers to protect the children under these circumstances. There is no mention of a violation of this statute in the pleadings, nor is there a mention of the statute, nor its counterpart, Chicago Municipal Code, Ch. 190, § 190-1, in the briefs, with the exception of a casual reference to the Chicago Ordinance on page 3 of the reply brief. Needless to say, we should not consider matters which were not urged upon the district court. Moreover, it would stretch the imagination to the breaking point to apply the Illinois Statute, Chapter 23, § 2368 (1975) to the facts here alleged. The Illinois statute applies only to a person who has “legal control” of “any child. . .” It is manifest that the officers here involved had no control whatsoever over the children. For that matter, if they had attempted to exercise control, they probably would have been guilty of assault or other crimes under Illinois law. The majority judges’ discussions of the subject of “gross negligence” or “reckless disregard,” again not raised or pursued by appellants, are grounded on cases where the claimants were the focal point of police action. In each of the cited cases on this point, the officer unintentionally shot a suspect. Manifestly, the officer was taking direct action against the person. The cases would be in point if the uncle was the complainant. However, neither of these cases establish a rule that officers making a legal arrest of the driver of an automobile undertake a duty to the passengers in the automobile who are in no way involved. In an effort to bootstrap his “gross negligence” theory, Judge Sprecher again recites the asthmatic condition of the five year old child (footnote 8). The pleadings before the district court made no allegation that the officers knew of this ailment. As stated supra, allegations raised as an afterthought on appeal should not be considered by the reviewing panel. No authority is cited by either member of the majority which would place the actions of the officers in the instant case in violation of the second aspect of the Due Process Clause’s protection, i. e. that their action “shocks the conscience.” This is just a wishful way of attempting to create a constitutional remedy where none exists. If I accept, which I do not, the majority’s argument that the officers owed a duty to or were automatically responsible for any passenger of an automobile legally stopped, then the officers’ inaction under the alleged affirmative duty might well be actionable. Judge Sprecher downgrades the fact that the unfortunate position of the children was due to the reckless conduct of their uncle and not to the actions of the officers, pointing out that this court is unaware of whether the uncle was convicted on the violation for which he was cited. Obviously, this misplaces the appellees’ emphasis on this point. The children’s predicament was not proximately caused by any police action or inaction in the face of an affirmative duty to act. In an effort to bolster its contention that the officers owed an affirmative duty to these minors, Judge Sprecher cites Gardner v. Village of Chicago Ridge, 71 Ill.App.2d 373 , 219 N.E.2d 147 (1966). In fact, Gardner supports the appellees’ views, rather than the appellants. Gardner involved a cause of action by a minor taken into custody by police. The child alleged that police officers had failed to protect him from being beaten by four other youths in police custody. Recognizing that there was no general duty on the part of the officers to provide police protection to the general public, the court went on to say that under certain circumstances, a duty must arise to protect a particular individual. In Gardner , as in all cases cited by the majority judges, the duty is placed on the officers only when they have actively involved, or have directly undertaken action toward, a particular person. The difference in status between youths taken into police custody and those toward whom no police action was taken proved decisive in Gardner and, in substantial part, forms the basis of my disagreement with the majority. *394 In his enthusiasm to hold the officers liable, Judge Sprecher reaches out to the cases involving “legal control” under a parental relationship or relationship entailing a responsibility for the support or upbringing of minors such as People v. Parris, 130 Ill.App.2d 933 , 267 N.E.2d 39 (1971). The court there held that a stepfather’s actions toward his wife’s children were encompassed within the provisions of Ill.Rev.Stat. ch. 23, § 2368 (1975), despite the fact that the stepfather had no legal right to custody of the children. Neither the “legal control” statute, Ill.Rev.Stat. ch. 23, § 2368 (1975), nor the “care or custody” statute imposing an affirmative duty to protect children, Ill.Rev.Stat. ch. 23, § 2354 (1975), are controlling on our facts. To extend the provisions of the legislation to a stepfather, who normally has control of the home, does not justify extending the provisions of that legislation to an officer making an arrest of a third person. Our facts are clearly distinguishable from those in the cases cited in footnote 6 of Judge Sprecher’s opinion. In order to justify his conclusions, Judge Sprecher is compelled to find some affirmative duty to care for the children. This he has failed to do. His statement of the issue reads as follows: “Thus, the issue before this court is whether the unjustified and arbitrary refusal of police officers to lend aid to children endangered by the performance of official duty violates the constitution where that refusal ultimately results in physical and emotional injury to the children." Clearly, the author poses the question and gives the answer in the same sentence. He assumes that the refusal of the officers to lend aid to the children was “unjustified and arbitrary” and that the children were “endangered by the performance of official duty.” The ready answer is that the officers owed no duty to the children and that they were not in any way endangered by the performance of the officers in their official duty in making the arrest and taking the driver into custody. COMMENTS ON SPECIAL CONCURRENCE The authorities cited in the special concurrence do not support the theory that the right to liberty under the Due Process Clause was offended by the actions of the appellees. Here, there was no “unjustified intrusions on [the] personal security” of the appellants by the officers in the context of the use of that language in Ingraham v. Wright, 430 U.S. 651, 673 , 97 S.Ct. 1401, 1413 , 51 L.Ed.2d 711 (1977). In Ingraham , the plaintiffs were junior high school pupils who charged defendants with inflicting corporal punishment upon them. There, the actions of the school officials were directed toward the plaintiffs. Here, no affirmative or other action was taken against the appellants by the police officers. Likewise, Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952); Howell v. Cataldi, 464 F.2d 272 (CA2 1972); Williams v. Liberty, 461 F.2d 325 (CA7 1972); and Jenkins v. Averett, 424 F.2d 1228 (CA4 1970), were all excessive force cases in which the affirmative actions of the officers were directed against the individuals. Even Bonner v. Coughlin, 545 F.2d 565 (CA7 1976) (In Banc), upon which the special concurrence heavily relies, is devoid of any principle which affirmatively supports the appellants’ claims. In Bonner , there was a direct nexus between the action of the prison officers in negligently failing to lock the door to appellant’s cell and the resulting theft of appellant’s trial transcript. Nonetheless, the court held that such failure was not a state deprivation of property without due process under the Fourteenth Amendment, nor was it an action “under color of state law” within the Civil Rights Statute. In commenting on the issue, the court referred to Gutierrez v. Department of Public Safety, 479 F.2d 701, 719-720 (CA7 1973), cert. denied 414 U.S. 1146 , 94 S.Ct. 900 , 39 L.Ed.2d 102 , in which the plaintiff sought relief because the defendants had failed to prevent a brutal assault upon him. The Gutierrez court in denying the claim held there could be no recovery in the absence of such callous indifference that an intent to inflict unwar *395 ranted harm could be inferred. Appellants’ allegations in their complaint do not give rise to such an inference of intent by the officers to inflict harm upon them. The court in Bonner also quoted from this circuit’s decision in Thomas v. Pate, 516 F.2d 889 (CA7 1975), cert. denied 423 U.S. 877 , 96 S.Ct. 149 , 46 L.Ed.2d 110 , which in turn interpreted the Supreme Court’s opinion in Wood v. Strickland, 420 U.S. 308, 322 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975), as follows: “a plaintiff must prove that the defendant has acted within the sphere of his official responsibility, ‘with the malicious intention to cause a deprivation of constitutional rights or other injury to the [plaintiff]’ or ‘with such disregard to the [plaintiff’s] clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.’ ” Thomas v. Pate, 516 F.2d at 891, n. 2 . [Emphasis supplied.] Here, as in Bonner , neither test is satisfied by the complaint. CONCLUSION I would affirm the judgment of the lower court. . Except as to the affirmance of the judgment as to defendant Rochford, in which Judge Kilkenny concurs. . Footnote 8 of the Sprecher opinion infers that we may consider the allegation, first raised by the appellants in their brief to this court, that the officers had knowledge of one appellant’s asthmatic condition. This allegation was not before the district court and, therefore, cannot be considered here. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8908815. Public record. Not legal advice.