Larry T. Wilson, Cross-Appellant v. Thomas L. Beebe, Cross-Appellee

NATHANIEL R. JONES, Circuit Judge,

concurring in part and dissenting in part.

I respectfully dissent from the majority’s holding that Wilson failed to establish a cause of action under § 1983 for either a procedural or a substantive due process violation of his constitutionally-protected enjoyment of liberty. The majority holds that Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981), establish *594 es the constitutional requirements for procedural due process in the context of deprivations of liberty. This holding is unsupported by any reasoning that addresses the essential distinctions between property interests and liberty interests. The majority’s holding on the substantive due process question engrafts an unprecedented state of mind element onto certain § 1983 actions. The rule that only intentional conduct violates substantive due process appears to result from undue yearning to establish a simple, bright-line rule. Instead, an evaluation of all the circumstances surrounding the alleged deprivation is necessary.

The essential characteristic of an action under § 1983 is an abuse of authority under color of state law that violates an individual’s constitutional rights. See Monroe v. Pape, 365 U.S. 167, 184 , 81 S.Ct. 473, 482 , 5 L.Ed.2d 492 (1961); Rhodes v. Robinson, 612 F.2d 766, 772 (3d Cir.1979). A review of the facts reveals Thomas Beebe’s abuse of his authority as an officer of the Michigan State Police. On February 23, 1975, Beebe stopped and then arrested Larry Wilson on suspicion of burglary. The trial court subsequently made findings of fact that Wilson “completely” submitted to Beebe, “precisely” followed all orders, neither resisted arrest nor attempted to escape and, in sum, “exercised reasonable care at all times” during the arrest. Despite Wilson’s obvious submission and although a frisk had uncovered no weapons in Wilson’s possession, Beebe attempted to handcuff Wilson while his service revolver was cocked. Knowledge can be imputed to Beebe, a veteran officer, that cocking the hammer of his revolver reduced the trigger-force necessary to fire the gun from between 10 and 15 pounds to a mere 2,lk pounds of pressure. Nevertheless, as Beebe and Wilson stood together on an icy road, Beebe continued to hold the cocked revolver while using both hands to handcuff Wilson. As the tangle of four hands came together with the revolver, it discharged, resulting in grievous and permanent injury to Wilson.

Wilson alleged that Beebe’s conduct, combined with the resulting injuries, amounts to a deprivation of liberty without procedural due process in violation of the Fourteenth Amendment. Proper evaluation of Wilson’s claims involves a dual analysis. We must first determine whether protected interests in life, liberty, or property are implicated. If so, we must determine what procedures constitute due process of law. If satisfactory procedures are provided, then no constitutional deprivation has occurred despite the injury. See In-graham v. Wright, 430 U.S. 651, 672 , 97 S.Ct. 1401, 1413 , 51 L.Ed.2d 711 (1977). There can be little doubt that Wilson’s injuries implicate his protected liberty interests in personal dignity and bodily integrity. See Ingraham, 430 U.S. at 673-74 , 97 S.Ct. at 1413-14 . The more difficult question requires determination of what procedural safeguards are required under the Fourteenth Amendment when a state constrains an individual’s liberty: at what point has a Constitutional deprivation occurred? The difficulty in the present case arises because Supreme Court discussions of procedural due process address requirements for notice and a hearing before a “deprivation of life, liberty or property by adjudication ” will be found to be constitutional. Goss v. Lopez, 419 U.S. 565, 579 , 95 S.Ct. 729, 738 , 42 L.Ed.2d 725 (1975) (emphasis added). See also Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893, 903 , 47 L.Ed.2d 18 (1976) (stating that a vital consideration is “the risk of an erroneous deprivation through the procedures used”). Beebe invaded Wilson’s liberty interests in violation of established procedures that bar arrests accomplished with a cocked revolver.

Judge Keith, in his dissent, has articulated one response to this difficulty; the present case does not implicate questions of procedural due process because Beebe’s conduct included actions which the Constitution will not countenance “no matter what procedural protections accompany them.” Hudson v. Palmer, — U.S.-, 104 S.Ct. 3194 , 3208 n. 4, 82 L.Ed.2d 393 (1984) (Stevens, J., concurring in part). Under this view, the present case would *595 involve only substantive due process questions. Parratt v. Taylor, which certainly is limited to issues of procedural due process, would not apply. There is much appeal in Judge Keith’s view, in which I concur. Except for the existence of Parratt v. Taylor I would go further and consider whether procedural due process is concerned solely with deprivations that occur in accordance with established procedures. Perhaps negligent or abusive conduct under color of state law but in violation of established procedures should be analyzed exclusively under the rubric of substantive due process. In Parratt , however, the Supreme Court relied upon a procedural due process analysis to evaluate random conduct in violation of established procedures which deprived the plaintiff of property. Therefore, I accept that it is reasonable for this Court to evaluate Beebe’s conduct through a procedural due process analysis. Traditional principles of procedural due process, however, do not support the majority’s extension of Parratt beyond property deprivations to govern liberty deprivations such as those imposed upon Wilson by Beebe.

The general principle is thoroughly established that when interests protected by procedural due process are implicated, “some kind of hearing is required at some time before a person is finally deprived ” of those interests. Wolff v. McDonnell, 418 U.S. 539, 557 , 94 S.Ct. 2963, 2975 , 41 L.Ed.2d 935 (1974) (emphasis added). See also Board of Regents v. Roth, 408 U.S. 564, 569-70 , 92 S.Ct. 2701, 2705 , 33 L.Ed.2d 548 (1972); Bell v. Burson, 402 U.S. 535, 542 , 91 S.Ct. 1586, 1591 , 29 L.Ed.2d 90 (1971). The established exception to this rule, however, is that in a property case, post-seizure process will satisfy constitutional standards in “extraordinary situations when some vital governmental interest is at stake.” Boddie v. Connecticut, 401 U.S. 371, 379 , 91 S.Ct. 780, 786 , 28 L.Ed.2d 113 (1971). Such “vital governmental interests” have involved state actions which are authorized by law and taken in the public interest. See e.g., Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 , 70 S.Ct. 870 , 94 L.Ed. 1088 (1950) (destruction of drugs); Fahey v. Mallonee, 332 U.S. 245 , 67 S.Ct. 1552 , 91 L.Ed. 2030 (1947) (seizing property from arguably incompetent bank management); Bowles v. Willingham, 321 U.S. 503 , 64 S.Ct. 641 , 88 L.Ed. 892 (1944) (issuance of rent control regulations). Additionally, this exception traditionally has been expressly limited to deprivations of property. See Mitchell v. W.T. Grant Co., 416 U.S. 600, 611 , 94 S.Ct. 1895, 1902 , 40 L.Ed.2d 406 (1974) (quoting Phillips v. Commissioner, 283 U.S. 589, 596-97 , 51 S.Ct. 608, 611-12 , 75 L.Ed. 1289 (1931)).

In Parratt v. Taylor, the Supreme Court expanded upon this exception by holding that when a person is dispossessed of property by a “random and unauthorized act,” so that a “preseizure hearing” is impractical, no constitutional deprivation has occurred if the state provides a postseizure remedy “at a meaningful time and in a meaningful manner.” See Parratt, 451 U.S. at 539-41 , 101 S.Ct. at 1914-16 . It is not the responsibility of an intermediate court to. challenge the wisdom of applying an exception developed to promote vital governmental interests to cases such as Parratt which involve lawless conduct in violation of established state procedures. There are two aspects of the Parratt opinion, however, that require emphasis. First, in Parratt Justice Rehnquist acknowledges that procedural due process requires a hearing “before a State finally deprives a person” of his protected interests. Parratt, 451 U.S. at 540 , 101 S.Ct. at 1915 (emphasis added). Second, Parratt does not direct plaintiffs to litigate constitutional violations in state courts; it holds that if a remedy is provided at a meaningful time and in a meaningful manner following seizure of the property, then no constitutional deprivation of property has occurred. See Parratt, 451 U.S. at 541 , 101 S.Ct. at 1916 .

In extending Parratt to govern alleged deprivations of liberty without procedural due process, the majority maintains, without analysis, that the underlying rationale of Parratt applies equally in property and *596 liberty contexts. See supra at 11. Practicality for the government becomes the measure of procedural due process; if a prior hearing is impractical because an action violates state procedures, then a person acting under color of state law may intrude upon both property and liberty interests (and implicitly upon a person’s interest in life itself), without violating the Constitution, as long as the state subsequently provides a remedy. But Parratt represents neither the first nor the last word by the Supreme Court on the requirements of procedural due process. The majority fails to consider the established principle that an evaluation of whether a procedural due process violation has occurred must first weigh the nature of “the private interest that will be affected by the official action.” Mathews v. Eldridge, 424 U.S. at 335 , 96 S.Ct. at 903 . See also Goss v. Lopez, 419 U.S. at 579 , 95 S.Ct. at 738 . Procedural due process analysis, even in the context of negligent or abusive conduct under color of state law, begins by considering the nature of the right infringed upon. A Court then determines whether the availability of a state damage remedy prevents an intrusion from rising to the level of a constitutional deprivation. Under this analysis, the distinctions between property and liberty become controlling.

By its nature, property is commensurate with money, with few exceptions. Generally, money damages can actually and fully compensate for a loss of property. Therefore, the acts which dispossess a person of tangible property, or which effect a person’s discharge from employment in which he has a property interest, do not in themselves necessarily amount to a constitutional deprivation. No fiction is necessary to conclude, as Parratt did, that postseizure damages satisfy procedural due process by returning the plaintiff to the position he would otherwise have occupied, thereby preventing a constitutional deprivation from occurring. The logical limit of Parratt is that no procedural due process deprivation occurs until a person has been dispossessed of property under color of state law and the state has failed to provide for subsequent proceedings at a meaningful time and in a meaningful manner.

When one begins by considering the nature of the liberty interests infringed upon in the present case, it becomes clear that Parratt does not control our deliberations because here the constitutional deprivation occurred simultaneously with the challenged conduct; subsequent proceedings cannot prevent the constitutional violation. Wilson’s bodily integrity was permanently, irreparably violated at the moment he was shot. The consequences of that moment shape Wilson’s future in a manner that no proceeding can alter. The shooting equally violated Wilson’s intangible interest in personal dignity, in a manner that parallels the Monroe family’s injury when they were forced to stand naked in their living room at gunpoint. See Monroe, 365 U.S. at 169 , 81 S.Ct. at 474 . These interests are not commensurate with money. It is at best a fiction to maintain that even the large damage award in this case fully compensates Wilson in a manner that precludes a procedural due process violation from arising. Parratt’s consideration of subsequent state procedures is inapplicable because such procedures cannot fully compensate the victim. A constitutional violation occurred at the moment Beebe shot Wilson and the remedy for constitutional deprivations lies in federal court.

Five members of the Supreme Court have acknowledged the essential distinctions between property deprivations and liberty deprivations. Justice Blackmun concurred separately in Parratt , joined by Justice White, to emphasize the “narrow reach” of the holding. “I do not read the Court’s opinion as applicable to a case concerning deprivation of life or of liberty.” Parratt, 451 U.S. at 545 , 101 S.Ct. at 1917 . Justice White, dissenting in Ingraham v. Wright, 430 U.S. 651 , 97 S.Ct. 1401 , 51 L.Ed.2d 711 (1977), and joined by Justices Brennan, Marshall, and Stevens, reasoned as follows:

The infliction of physical pain is final and irreparable; it cannot be undone in a subsequent proceeding.

*597 The majority’s conclusion that a damages remedy for excessive corporal punishment affords adequate process rests on the novel theory that the State may punish an individual without giving him any opportunity to present his side of the story, as long as he can later recover damages from a state official if he is innocent. The logic of this theory would permit a State that punished speeding with a one-day jail sentence to make a driver serve his sentence first without a trial and then sue to recover damages for wrongful imprisonment.

Ingraham, 430 U.S. at 695-96 , 97 S.Ct. at 1425 (White, J., dissenting). Justice Stevens dissented separately, in part to highlight the distinction between property and liberty.

When only an invasion of a property interest is involved, there is a greater likelihood that a damages award will make a person completely whole than when an invasion of the individual’s interest in freedom from bodily restraint and punishment has occurred. In the property context, therefore, frequently a postdeprivation state remedy may be all the process that the Fourteenth Amendment requires.

Ingraham, 430 U.S. at 701 , 97 S.Ct. at 1427 (Stevens, J., dissenting).

The consequences of an analysis that weighs the characteristics of the liberty interests that allegedly have been invaded are readily apparent. In the present case the constitutional violation was complete at the time the injury was inflicted. Parratt’s consideration of subsequent state proceedings is displaced. Damages are provided as a remedy for the constitutional deprivation, as partial recompense for an injury that never should have occurred, and in recognition that abusive exercise of governmental authority has no place in our system of ordered liberties.

A practically-minded person might object that this analysis amounts to formalistic word-play. Section 1983 plaintiffs seek money damages in compensation for injuries. If the states provide meaningful opportunities to recover damages, the plaintiffs will be satisfied and so should the Constitution. I reject such a reductionist view of the purpose of § 1983, and commend to the Court’s consideration the concurrence of Justice Harlan in Monroe. See 365 U.S. at 194-198 , 81 S.Ct. at 487-489 . In considering whether the rogue officers in that case violated the plaintiffs’ constitutional rights, Justice Harlan found no compelling evidence that Congress concluded that a “state remedy was more adequate for unauthorized actions than for authorized ones.” Monroe, 365 U.S. at 194 , 81 S.Ct. at 487 (Harlan, J., concurring).

The statute becomes more than a jurisdictional provision only if one attributes to the enacting legislature the view that a deprivation of a constitutional right is significantly different from and more serious than a violation of a state right and therefore deserves a different remedy even though the same act may constitute both a state tort and the deprivation of a constitutional right.

Monroe, 365 U.S. at 196 , 81 S.Ct. at 488 (Harlan, J., concurring). I agree with Justice Harlan and conclude that more than a question of money is at stake in the present controversy. The acts that deprived Wilson of liberty violated procedural due process and, therefore, are properly designated constitutional violations and are properly remedied in federal court.

I dissent from the majority opinion on a second ground. The majority imposes a state of mind requirement in actions which allege substantive due process violations. I agree with the majority that Wilson’s substantive liberty interests were implicated by Beebe’s conduct, although no express provision of the Bill of Rights was violated. Two cases, Rochin v. California, 342 U.S. 165 , 72 S.Ct. 205 , 96 L.Ed. 183 (1952), and Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033 , . 94 S.Ct. 462 , 38 L.Ed.2d 324 (1973), provide excellent guidance concerning the elusive meaning of substantive due process. Yet, I also concur in Judge Keith’s conclusion that neither *598 precedent nor reasoning supports, much less compels, the majority’s holding that only intentional conduct violates the penumbral guarantee of substantive due process. I write separately to offer my understanding of the analysis by which to identify substantive due process violations.

As the majority accepts, Judge Friendly’s opinion in Johnson v. Glick articulates sound reasoning by which to determine whether conduct under color of state law “shocks the conscience.”

In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether the force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Johnson, 481 F.2d at 1033 . Unlike the majority, I do not read this language to support a simple, bright-line rule that only intentional conduct violates substantive due process. It is anomalous to state that an individual has a substantive right to maintain his or her bodily integrity and then to examine only the state of mind of the person acting under color of state law to determine whether the victim’s right has been violated.

I would begin by identifying the application of force under color of state law that allegedly infringed upon substantive rights. In the present case, Officer Beebe shot Wilson at close range with his service revolver. Second, we should consider the need for the application of force. There was no need for Beebe to apply force of this sort to restrain Wilson, who was passively submitting to arrest. Third, the application of force, therefore, was completely out of proportion with the need for force. Fourth, the consequence of this conduct was grievous and permanent injury to

Wilson. Finally, although Beebe did not maliciously or intentionally injure Wilson, he recklessly and with disregard for established policy cocked his revolver and failed to uncock the gun once Wilson had submitted and had been frisked. This recklessness proximately caused Wilson’s injury. There was no need to restrain Wilson with force, but extreme force was used, and Wilson was grievously injured; therefore, Beebe violated Wilson’s substantive due process right to bodily integrity.

I believe that Wilson established both procedural and substantive due process violations of his vital interest in enjoying liberty without arbitrary governmental restraint and, therefore, I dissent from sections IV and V of the majority opinion.