James T. Voutour v. Harold Vitale, James T. Voutour v. Harold Vitale

BOWNES, Circuit Judge

(concurring).

I concur in the result of the per curiam opinion, but write specially to express my disagreement with two aspects of the analysis found therein. First, I believe there is no need to rely upon tort concepts of negligence or gross negligence to determine whether liability will attach under § 1983. When the per curiam opinion uses this tort language, it is not really discussing the presence of tort negligence or gross negligence, but simply the issue of foreseeability of consequences. Foreseeability as a factor of § 1983 liability is different than foreseeability as a factor of tort liability. Negligence and gross negligence are defined by reference to common law concepts of duty of care; foreseeability under § 1983 is defined by reference to constitutional and statutory standards which a reasonable government official can be expected to know, Harlow v. Fitzgerald, 457 U.S. 800, 818-19 , 102 S.Ct. 2727, 2738-39 , 73 L.Ed.2d 396 (1982). As a result, conduct which may be viewed as grossly negligent is not necessarily conduct for which liability may attach under § 1983. The per cu-riam opinion appears to recognize this in its analysis of the claim against Officer Wheeler; although Officer Wheeler’s conduct might sustain a jury finding of gross negligence, it could not sustain a jury finding of liability under § 1983 because the constitutional repercussions of his conduct were not sufficiently foreseeable. Given this divergence and the different focuses of tort law and § 1983, I think it would be both more accurate and less confusing to avoid the language of tort law in determining liability under § 1983. Thus *826 the analysis of the claim against Chief For-ni, while it is couched in terms of gross negligence, could be quite easily recast along the lines of the analysis of the claim against Officer Wheeler: whether the constitutional repercussions of his conduct were sufficiently foreseeable to justify holding him liable under § 1983.

My second objection to the analysis found in the per curiam opinion stems from the requirement that a finding of gross negligence as opposed to simple negligence is necessary for supervisory liability. Leaving aside my objections to the use of these tort concepts, what this results in is a requirement that the likelihood or foreseeability of constitutional repercussions be very high before liability attaches under § 1983. While I recognize the per curiam opinion follows the vast majority of courts in requiring a level of foreseeability comparable to that required for a finding of gross negligence, I find little justification for this. The Supreme Court has never directly addressed this issue and I do not believe that such a high standard can be inferred from its other § 1983 decisions. In particular, I do not read either Rizzo v. Goode, 423 U.S. 362 , 96 S.Ct. 598 , 46 L.Ed.2d 561 (1976), or Monell v. Department of Social Services, 436 U.S. 658 , 98 S.Ct. 2018 , 56 L.Ed.2d 611 (1978), to foreclose a lower standard of foreseeability — one comparable to simple negligence. Neither the Rizzo requirement of an “affirmative link” between the constitutional deprivation and the challenged conduct, 423 U.S. at 371 , 96 S.Ct. at 604 , nor the Monell requirement that official policy be the “moving force of the constitutional violation,” 436 U.S. at 694 , 98 S.Ct. at 2038 , speak to more than the requirement that there be an affirmatively shown causal connection between the challenged conduct and the constitutional deprivation. In Monell , the Court characterized Rizzo as having rejected responde-at superior as a basis for § 1983 liability, thereby rejecting vicarious liability based on considerations of public policy rather than fault or causation.

I suggest that the “objective reasonableness” standard of qualified immunity set out in Harlow, 457 U.S. at 818 , 102 S.Ct. at 2739 , requires a test of “objective foreseeability” which is lower than the one imposed by the gross negligence standard. If the knowledge expected of government officials is that which a reasonable person could be expected to have, the foresight expected of government officials should be the same — that of a reasonable person. As a practical matter, this lower standard would have no effect on the results in this case.

There is one final point which needs to be addressed. In a footnote discussing the possible application of Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), to .deprivations of life or liberty, the per curiam opinion states that it might be reasonable to hold that state negligence remedies afford sufficient process for negligent deprivations of life or liberty. I do not believe that Parratt should be extended beyond deprivations of property. See Parratt, 451 U.S. at 545 , 101 S.Ct. at 1918 (Blackmun, J., concurring); Hudson v. Palmer, — U.S. -, - n. 4, 104 S.Ct. 3194 , 3208 n. 4, 82 L.Ed.2d 393 (1984) (Stevens, J., concurring in part and dissenting in part). Life and liberty interests are such that due process cannot be satisfied procedurally by the provision of post-deprivation remedies. At some point, “procedural due process shades into substantive due process, and Parratt becomes inapplicable.” Thibodeaux v. Bordelon, 740 F.2d 329 , 338-39 n. 9 (5th Cir.1984).

ON REHEARING

While the petition for rehearing correctly points out several lapses in the statement of facts in our opinion, which we [have corrected] ..., we do not find, after careful review, that these affect or should affect our determination that the issues of the possible liability of Chief Forni and the Town of Saugus should not be resolved on *827 a motion for summary judgment. Viewing the facts most favorably for plaintiff, we think a sufficient showing was made of genuine issues of material fact concerning whether or not the Chief and Town are liable under 42 U.S.C. § 1983 for having violated the plaintiff’s constitutional rights.

Our determination in this regard does not, as stated on page 822 of our opinion, foreclose defendants’ right at the close of evidence to seek the district court’s review of the sufficiency of the evidence by motion for a directed verdict. 1 By then, especially after examination and cross-examination of witnesses, see C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2532 (1971), the parties may well have presented a far more complete and meaningful picture of what training Vitale had received and what the Chief and Town of Saugus knew or had reason to know. The district court will be able to determine, as a matter of law, whether a jury has a sufficient basis on that record for finding that the Chief was grossly negligent to the point of conscious indifference with respect to Vitale’s training, and also whether there is sufficient evidence to support a verdict against the Town of Saugus. See page 823. Our present ruling should not be understood as necessarily prejudging such a motion.

We must mention a further point. On January 8, 1985 the Supreme Court heard argument in Oklahoma City v. Tuttle, No. 83-1919, 53 U.S.L.W. 5300 . The Court’s decision in that case could be highly significant with respect to the claim against the Town of Saugus, since the issue before the Court involves determination of the circumstances in which a municipality is liable for misconduct of a police officer. Tuttle could also shed some further light on the law pertaining to the claim against Chief Forni. Needless to say, when this ease goes back to the district court, this circuit’s directions in the current opinion must yield to any rulings the Supreme Court may by then make in Tuttle or elsewhere. To the extent the Supreme Court in Tuttle lays down principles that differ from any of our present rulings, the district court on remand may and should apply its best understanding of the Court’s decision without further application to us.

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The petition for rehearing is denied.

. In respect to the Town of Saugus we also emphasized in our opinion the need to prove not only that the Chief had been grossly negligent to the point of conscious indifference with respect to training Vitale, but that the Town, through its Town Manager or otherwise, knew or should have known of the Chiefs dereliction. See page 823. This issue may be pursued on remand by summary judgment procedures as well as at trial.