# Marcus Gumz, Cross-Appellant v. Douglas Morrissette and Lawrence Cloutier, Cross-Appellees

> Court of Appeals for the Seventh Circuit · September 27, 1985 · 772 F.2d 1395

URL: https://www.frixlaw.com/law-library/cases/9473984

## Case

- **Full name:** Marcus GUMZ, Plaintiff-Appellee, Cross-Appellant, v. Douglas MORRISSETTE and Lawrence Cloutier, Defendants-Appellants, Cross-Appellees
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** September 27, 1985
- **Citations:** 772 F.2d 1395
- **Precedential status:** Published
- **Opinion:** Concurrence by Easterbrook
- **Judges:** Easterbrook, Cummings, Wright
- **Cited by:** 104 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Betty Lester v. City of Chicago, Officer Daniel Leahy, Officer Ernest Cain, and Sergeant John McNulty, 830 F.2d 706 (1987).
- Negative treatments: 1
- Distinguished by: 2
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473984

## How later opinions describe it (automated extraction)

- holding that, under substantive due process standard, excessive force claim must be “so egregious as to be constitutionally excessive, and the presence of some physical injury is certainly relevant to that determination”
- noting that "the presence of some physical evidence is certainly relevant" to the determination whether the use of force was constitutionally excessive
- explaining the dangers of judicially created rights

## Opinion text

EASTERBROOK, Circuit Judge,
concurring.
Chief Judge Cummings has written a thoughtful and comprehensive opinion. I join all of it except Part II.A. With respect to that portion I concur only in the judgment. The difference between our positions is subtle but important. Part II.A analyzes a claim of excessive force in making an arrest as one of substantive due process, which permits decisionmakers to award damages for conduct that “shocks their consciences.” I conclude that such claims should be assessed under the standards of the Fourth Amendment. If an arrest is objectively reasonable within the meaning of the Fourth Amendment, that should be the end of the matter.
The most natural way to think about a claim that officers used excessive force in making an arrest is as an assertion that they violated the commands of the Fourth Amendment, the only part of the Constitution directly addressing seizures of the person by police. To say that police used excessive force is to say that they violated people’s “right to be secure in their persons ... against unreasonable ... seizures.” The only time the Supreme Court has held that the police used excessive force in making an arrest, it did so under the Fourth Amendment. Tennessee v. Garner, — U.S. -, 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985) (deadly force may be used to make an arrest only if the suspect appears dangerous). The Court also has said that officials’ compliance with the Fourth Amendment forecloses actions for the deprivation of liberty at the time of an arrest. Baker v. McCollan, 443 U.S. 137 , 99 S.Ct. 2689 , 61 L.Ed.2d 433 (1979). We have held several times that “a person who is arrested pursuant to a facially valid warrant ... generally has no claim for an unconstitutional deprivation of liberty under section 1983.” Mark v. Furay, 769 F.2d 1266, 1268 (7th Cir.1985); Friedman v. Village of Skokie, 763 F.2d 236, 239 (7th Cir.1985); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336 , 1344 n. 10 (7th Cir.1985); Terket v. Lund, 623 F.2d 29, 31 (7th Cir.1980).
The majority properly emphasizes that the majority of appellate courts that have considered claims that excessive force was used to make an arrest have analyzed these 'claims as deprivations of liberty under the Fourteenth Amendment rather than as unreasonable seizures under the Fourth. But *1405 all of these cases predate Garner . One predates Baker , where the Court used the Fourth Amendment to analyze the arrest despite Justice Blackmun’s invocation, in a concurring opinion, of the “shocks the conscience” test derived from Rochin v. California, 342 U.S. 165, 172 , 72 S.Ct. 205, 209 , 96 L.Ed. 183 (1952). See Baker, supra, 443 U.S. at 147 , 99 S.Ct. at 2696 (Blackmun, J., concurring).
Although the Fourth Amendment was designed for the sort of claim Gumz presses, the Due Process Clause of the Fourteenth Amendment was not. Gumz does not want notice and an opportunity for a hearing before being subjected to a maliciously frightening arrest. He does not want process of any kind, due or otherwise. He asserts a substantive right to be free from intentional infliction of emotional distress in the course of being arrested. Cases such as United States v. Price, 383 U.S. 787 , 86 S.Ct. 1152 , 16 L.Ed.2d 267 (1966), Screws v. United States, 325 U.S. 91 , 65 S.Ct. 1031 , 89 L.Ed. 1495 (1945), and Jackson v. City of Joliet, 715 F.2d 1200, 1202, 1204 (7th Cir.1983) (dictum), where the police acted as judge, jury, and executioner, pose a different problem. A claim that the police never made a lawful arrest, or that after arrest the police skipped the trial on the way to the punishment, is within the central meaning of due process.
The use of the Due Process Clauses to achieve substantive ends has no support in the language or history of the Constitution. The language speaks of process, not substance. On the history see II Crosskey, Politics and the Constitution in the History of the United States, 1102-16 (1953); Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv.L.Rev. 366-85, 460-79 (1911); Jurow, Untimely Thoughts: A Reconsideration of the Origins of Due Process of Law, 19 AmJ.Legal History 265 (1975). The first time the Supreme Court encountered one of the two due process clauses, it conducted a historical review and concluded that the text was designed only to incorporate some of the basic procedural guarantees of English law. Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 , 15 L.Ed. 372 (1856). See also Hurtado v. California, 110 U.S. 516 , 4 S.Ct. 111 , 28 L.Ed. 232 (1884).
Substantive due process made its entrance in Chief Justice Taney’s offhand remark in Scott v. Sandford, 60 U.S. (19 How.) 393 , 450, 15 L.Ed. 691 (1857), hardly an auspicious beginning. A few state courts had hinted at substantive review starting in 1820, see Corwin, supra. The hints flowered in 1857. Since then substantive due process has been the foundation of some of the most unsuccessful inventions in constitutional law. In addition to Dred Scott itself, see, e.g., Mugler v. Kansas, 123 U.S. 623, 661 , 8 S.Ct. 273, 297 , 31 L.Ed. 205 (1887); Allgeyer v. Louisiana, 165 U.S. 578 , 17 S.Ct. 427 , 41 L.Ed. 832 (1897); Lochner v. New York, 198 U.S. 45 , 25 S.Ct. 539 , 49 L.Ed. 937 (1905). The Supreme Court regularly buries the doctrine, Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 U.S. 525, 535-37 , 69 S.Ct. 251, 256-57 , 93 L.Ed. 212 (1949); North Dakota State Board of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156 , 94 S.Ct. 407 , 38 L.Ed,2d 379 (1973), but it just as resolutely refuses to stay dead. See the inconclusive debate in Moore v. City of East Cleveland, 431 U.S. 494 , 97 S.Ct. 1932 , 52 L.Ed.2d 531 (1977), in which four Justices supported the use of substantive due process to vindicate “traditional family values,” four Justices denied the validity of the doctrine, and one Justice ducked the issue.
Substantive due process once was used to invalidate legislation affecting prices, wages, and hours, legislation the Court thought struck at the heart of freedom of contract. When enthusiasm for freedom of contract waned, the Court resurrected the same doctrine — with the same lack of textual and historical support — to protect a new constellation of values, this one having to do with family, procreation, and privacy. What unites the many lives of substantive due process is any action “deeply repulsive to the feelings of Supreme Court Justices.” Bigby v. City of Chicago, 766 F.2d 1053, *1406 1058 (7th Cir.1985). This is the sense in which the doctrine was used in Rochin , which declared that the use of a stomach pump to obtain evidence violates the Due Process Clause of the Fourteenth Amendment.
Rochin was a transitional case. The majority resorted to substantive due process in Rochin because the Court had not yet decided whether the Fourteenth Amendment incorporated the meaning of the Fourth. As the majority saw things, there was no other way to protect the deeply held value of the integrity of one’s body. The Court now has held, rightly or wrongly, that the Fourth Amendment applies fully to the states through the Fourteenth. This has transformed the Court’s approach to issues of bodily integrity. For example, Winston v. Lee, — U.S. -, 105 S.Ct. 1611 , 84 L.Ed.2d 662 (1985), applied the reasonableness test of the Fourth Amendment to decide whether officials may put a suspect under general anesthesia and invade his body to extract a bullet that may link him with a crime. See also United States v. Montoya de Hernandez, — U.S. -, 105 S.Ct. 3304 , 87 L.Ed.2d 381 (1985) (Fourth Amendment analysis of a lengthy detention so that officials could examine the contents of a person’s excreta); Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966) (Fourth Amendment analysis of a forcible extraction of blood). In Winston the Court relegated Rochin to passing mention in a footnote. 105 S.Ct. at 1617 n. 5. In Montoya de Hernandez the Court did not cite Ro-chin.
Because substantive due process has always been so dependent on the personal feelings of the Justices; because it has no pedigree other than a trail of defunct, little-mourned, and sometimes (as in Dred Scott) pernicious doctrines; and because there is no need to conjure up a constitutional doctrine when there is an Amendment directed to this specific subject, we should not employ substantive due process here. Substantive due process is a shorthand for a judicial privilege to condemn things the judges do not like or cannot understand. The Constitution does not give such power to judges. Whatever the demands of the consciences of the Justices, we ought not instruct randomly selected jurors or the relatively numerous lower federal judiciary to vindicate their consciences as well as those of the Justices. The Justices ultimately may instruct lower courts to follow such a path, but Garner, Winston, and Baker offer little reason to believe they will. It is unnecessary to supply a right of action for conduct in arrests that “shocks the conscience” in order to furnish a reasoned foundation for any line of cases in the Supreme Court; it is not a logical outcome of any line of cases. Until the Supreme Court holds that substantive due process is the right way to think about claims arising out of fright in the course of being arrested, lower courts ought not to make the choice voluntarily. See Dronenburg v. Zech, 741 F.2d 1388, 1396-97 (D.C.Cir.), reh. denied, 746 F.2d 1579 (1984).
The choice between substantive due process and reasonableness under the Fourth Amendment puts more than nice questions of doctrine at stake. The notorious difficulties in defining reasonableness under the Fourth Amendment are insignificant compared to the randomness that flows from asking people what shocks their consciences. Reasonableness is an open-ended approach, to be sure, but it has roots in tort law. It calls for an objective balancing of the harms from the arrest or search against the potential harms to effective law enforcement of delaying the action or not acting at all. The graver the crime and the more exigent the circumstances, the more police can do — whether that means searching on a lesser probability of finding something, entering a dwelling at night, or tearing a house apart in search of evidence. See Llaguno v. Mingey, 763 F.2d 1560, 1564-67 (7th Cir.1985) (en banc). See also Alschuler, Bright Line Fever and the Fourth Amendment, 45 U.Pitt.L.Rev. 227, 252-60 (1984).
The Supreme Court, aware of the difficulties in defining what is reasonable, has been trying to codify the concept, replacing *1407 balancing tests with rules whenever possible. Compare United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973), New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), and United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982), with Illinois v. Gates, 462 U.S. 213, 230-41 , 103 S.Ct. 2317, 2328-34 , 76 L.Ed.2d 527 (1983). See also LaFave, “Case-by-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup.Ct.Rev. 127. There is now a tremendous body of precedent dealing with searches and seizures, and these cases furnish rules that ought to be sufficient guidance in a case such as this. Yet a “shocks the conscience” test spurns bright lines. It spurns rules. It is a yague standard — if it can be called a “standard” at all — inviting deci-sionmakers to consult their sensibilities rather than objective circumstances. Sensibilities vary from person to person and place to place; an officer told to do nothing that “shocks the consciences” of six people to be drawn out of a jury wheel some years hence would have considerable difficulty knowing how to behave.
The most significant difference between substantive due process and reasonableness under the Fourth Amendment is that one requires scrutiny of motive and the other forbids it. The third part of the standard the majority adopts in Part II.A is whether the official action “was inspired by malice.” The plaintiff puts the officials’ motives in issue and invites the jury to be “shocked” by malice or any other evidence that the police wanted to “get” the plaintiff. That is what this trial was all about. The bulk of the evidence was devoted to showing that the defendants had a long-running dispute with Gumz and set up his arrest in order to annoy, aggravate, frighten, and humiliate him. This was the basis of the award of punitive damages against Cloutier.
The Fourth Amendment, in contrast, calls for objective inquiry only. The officer’s pure heart provides no defense if his conduct was unreasonable in light of the facts he knew or should have known; the officer’s evil design does not invalidate his acts if the facts otherwise support his deeds. Scott v. United States, 436 U.S. 128, 135-39 , 98 S.Ct 1717, 1722-24 , 56 L.Ed.2d 168 (1978). Our circuit has held consistently that a person “cannot claim that his arrest violated his constitutional rights merely because the defendants had malicious motives for arresting him.” Mark v. Furay, supra, 769 F.2d at 1268 (collecting cases). Motive counts in the sense that “bad faith” efforts to obtain a warrant (as by misrepresenting facts), or “bad faith” efforts to execute a warrant (as by exceeding its scope), may invalidate an arrest, but in such cases “bad faith” is simply a label attached to objectively unreasonable conduct (such as lying to the magistrate to obtain the warrant). See, e.g., Olson v. Tyler, 771 F.2d 277 (7th Cir.1985).
The Supreme Court’s effort to reduce the uncertainty police face under the reasonableness standard of the Fourth Amendment depends on treating the inquiry as objective. Only an objective approach can sustain bright line rules of conduct. The Court also has driven subjective inquiries from the law of “good faith” or qualified immunity for conduct by the police. An officer whose acts do not violate “clearly established” law is immune no matter his motive. Mitchell v. Forsyth, — U.S.-, 105 S.Ct. 2806, 2818-20 , 86 L.Ed.2d 411 (1985); Harlow v. Fitzgerald, 457 U.S. 800, 815-19 , 102 S.Ct. 2727, 2736-39 , 73 L.Ed.2d 396 (1982). The Supreme Court altered the standard of qualified immunity in Harlow precisely to get rid of any inquiry into motive, an inquiry that had bedeviled and prolonged litigation without serving any substantial purpose. The Court concluded that subjective inquiries should be eliminated because there “often is no clear end to the relevant evidence” ( 457 U.S. at 817 , 102 S.Ct. at 2737) and because, among many other things, they make summary judgment all but impossible {id. at 816, 102 S.Ct. at 2737). Yet subjective inquiries are an essential part of the approach to sub *1408 stantive due process the majority adopts today.
The analysis of this case under the Fourth Amendment is straightforward. The wardens had a warrant for Gumz’s arrest. They knew Gumz to be irascible and uncooperative; he had refused to accept a citation by hand or by mail. (Whether they also reasonably thought Gumz armed and dangerous was a subject of dispute that the jury evidently resolved adversely to the defendants.) Although Cloutier and Morrissette assembled a team of officers, they initially sent only two onto Gumz’s farm. These two knocked peaceably on Gumz’s door during working hours, and he refused to answer or come out. At this point they would have been authorized by the warrant to break open the door and take Gumz by force; they elected instead to wait him out. Two additional wardens then appeared to deal with the dragline and its operator. Not until Gumz scrambled into his car and sped down the road, only to collide with other officers and careen back toward the house, did the remaining six officers materialize around the house. There they arrested Gumz without a scuffle. There was no unduly offensive touching. Perhaps all of this could have been done with two officers, but the Fourth Amendment does not require the police to use the minimum number of officers to make an arrest. Putting all questions of motive aside, as the Fourth Amendment requires, I conclude that no juror could have found this measured increase in the number of wardens — with no use of force — to be unreasonable.
The majority correctly observes that the district court resolved against Gumz all issues he raised under the Fourth Amendment. Of course, an appellate court may affirm a judgment on any ground properly preserved at trial. Massachusetts Mutual Life Insurance Co. v. Ludwig, 426 U.S. 479 , 96 S.Ct. 2158 , 48 L.Ed.2d 784 (1976). My analysis of the Fourth Amendment issue is necessary to determine whether Gumz’s judgment should be affirmed on this alternate ground. But if, as the majority concludes, no Fourth Amendment issue properly is before us, then the correct disposition of the case is to reject the claim of substantive due process as legally unsound and reverse for that reason. We ought not to adopt substantive due process as the law of this circuit for claims of excessive force just because the parties have addressed this case exclusively in those terms.
If the argument I have made is incorrect, however, and this case properly should be analyzed under the Due Process Clause, it is necessary to confront some additional issues. One is the identification of a “liberty” interest. Freedom of movement is a part of every person’s natural liberty, McKinney v. George, 726 F.2d 1183, 1189 (7th Cir.1984), and being arrested deprives a person of that liberty for the duration. Serious physical injuries in the course of an arrest deprive a person of liberty (and maybe, as in Garner , of life) in addition to the deprivation incident to an ordinary arrest. See Davis v. Forrest, 768 F.2d 257, 258 (8th Cir.1985) (a battery must be “brutal and demeaning” to state a claim of deprivation of liberty); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981) (a physical injury in the course of an arrest is not a deprivation of liberty unless the injury is “severe”). But Gumz is not (any longer) challenging the fact of his arrest. He was arrested under a warrant we must assume to be valid. He was not physically injured in the course of the arrest. Although he was technically assaulted when the officers put Gumz in apprehension of an imminent offensive touching, this was a privileged assault because the officers were entitled to touch Gumz and take him away. The interest that concerns us now is not freedom of movement but freedom from gratuitous fright or shock. This is not a liberty interest.
An interest in being free from malicious or gratuitous fright or shock is not part of the freedoms recognized in English law in 1791. It is a recent development. It is very similar to the tort of intentional infliction of emotional distress. “Not until comparatively recent decades has the infliction of mental distress served as the basis of an *1409 action, apart from any other tort.” Pros-ser & Keeton, Torts § 12 at 55 (5th ed. 1984). The Constitution does not follow the latest developments in tort law. Baker v. McCollan, supra; Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976). “Liberty” comprises a smaller, more traditional assortment of interests. In Paul the Court held that a person lacks a liberty interest in his reputation, although libels may shock and frighten as well as sully one’s reputation, and although defamation was a tort recognized in 1791. The plaintiff in Paul could not have prevailed by recharacterizing his libel action as one for intentional infliction of mental distress. What the wardens did to Gumz may have been tortious under state law, but they did not deprive Gumz of liberty within the meaning of the Fourteenth Amendment.
If fright deprived Gumz of liberty, it still does not follow that he may bring suit under § 1983 to recover. A state deprives someone of liberty without due process only when it permits its officials to act without either prior, or effective subsequent, remedies. If a state offers its residents effective remedies for random and unauthorized wrongs done them, those remedies are the due process of which the Constitution speaks. Parratt v. Taylor, 451 U.S. 527 , 101 S.Ct. 1908 , 68 L.Ed.2d 420 (1981) . Gumz does not challenge established state procedures within the meaning of Logan v. Zimmerman Brush Co., 455 U.S. 422 , 102 S.Ct. 1148 , 71 L.Ed.2d 265 (1982) . He contends that the officers’ acts were unauthorized under state as well as federal law.
The majority concludes, ante at 1399 n. 3, that Parratt does not apply to claims of “substantive constitutional guarantees as distinguished from procedural due process rights.” This is an accurate statement of the law in this circuit. But I believe that Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, — U.S.-, 105 S.Ct. 3108 , 3121-22 & n. 14, 81 L.Ed.2d 126 (1985), and Hudson v. Palmer, — U.S.-, 104 S.Ct. 3194, 3202-04 , 82 L.Ed.2d 393 (1984), should persuade us to rethink our cases. Williamson applied Parratt to the deprivation of a substantive right — the right not to have one’s property taken for public use without just compensation. A state may take property without any process; it just must pay for what it takes. The Court analyzed a takings claim under Parratt by concluding that the deprivation is not complete until the state fails to pay for what it has taken. In Hudson the claim was that prison officials intentionally destroyed property a prisoner was allowed to keep in his cell. See also Ingraham v. Wright, 430 U.S. 651, 674-82 , 97 S.Ct. 1401, 1414-18 , 51 L.Ed.2d 711 (1977), which holds that remedies under tort law are due process for the harms inflicted by excessive or unjustified paddling of a child by a teacher. Both Hudson and Ingraham were presented to the Court as claims to prior hearings, and so they are not formally inconsistent with the analysis in this court’s cases. But the line between process and substance in those cases was almost too fine to perceive, and in Williamson that line disappeared. Parratt therefore should be applied to a claim of the unauthorized use of excessive force in making an arrest.
In fine, it does not matter to the outcome in this case whether the court uses the Fourth Amendment or substantive due process to analyze Gumz’s claims. The officers’ conduct was objectively reasonable under the Fourth Amendment. The majority rejects the substantive due process claim on the facts; I would reject such a claim for want of a liberty interest and because the state supplies the appropriate remedy. Today’s selection of a method of analysis may control the outcome in future cases, however, and tomorrow’s cases should be assessed exclusively under the standards of the Fourth Amendment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473984. Public record. Not legal advice.