holding that a police officer was not entitled to qualified immunity where he had arrested Wood’s male companion, taken the car keys, and left Wood stranded in a high-crime area five miles from her home at 2:30 a.m., and reasonably should have been aware of the danger to Wood
How later courts described this case
- holding that a police officer was not entitled to qualified immunity where he had arrested Wood’s male companion, taken the car keys, and left Wood stranded in a high-crime area five miles from her home at 2:30 a.m., and reasonably should have been aware of the danger to Wood
- recognizing that the intentional assertion of government power which tends to show a disregard for a claimant’s safety was sufficient to state a claim under section 1983
- holding that due process claim was not barred under § 1983 because the alleged police conduct “may be more than mere negligence”
- No immunity for police officer who had stranded the plaintiff in a high crime area late at night after arresting her companion, because the officer’s action demonstrated “callous disregard” for plaintiffs liberty interest in physical security
Written by the judges who cited it.
Later courts went against this
Questioned by Dorris v. County of Washoe, 885 F. Supp. 1383 (1995)
851 F.2d 1212 (9th Cir.1988) (an earlier opinion in the same case) — had suggested that "gross negligence” would support a due process claim, those cases had been called into question by the
The opinion
CARROLL, District Judge,
dissenting:
I would affirm the district court’s order granting summary judgment in defendants’ favor dismissing the amended complaint.
The district judge thoughtfully considered in his eight page order granting defendants’ motion for summary judgment issues respecting whether the undisputed facts demonstrated “a violation of a constitutional right,” and if so, whether the claim “should be dismissed on the basis that Os-trander is entitled to a good faith immunity.” (ER 54, p. 3.)
In going through its analyses, the trial court found that the following facts, amongst others, were undisputed:
The area in which the stop occurred was well lit. It was a clear night. There was a 24-hour Shell station located two blocks north of the area in which the stop occurred. There was a 24-hour 7-Eleven store located one-half block south of the area in which the stop occurred. Wood denies seeing any open businesses. Wood took a ride with a stranger and was raped.
Appellant has not challenged this finding as an issue on appeal. Ms. Wood’s affidavit that she did not see these businesses does not create a genuine issue of fact as to their presence considering there were appropriate affidavits that businesses were present and open at the time in question. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). Appellant's efforts to obliquely create a factual issue through argument is inappropriate and violative of the rules of this Court. When pressed on this proposition at oral argument, appellant’s counsel took the position that the presence of these businesses near the arrest scene was irrelevant for summary judgment purposes.
The Majority Opinion does a disservice to the record when it infers several times that the character of the specific site where Ostrander left Ms. Wood was the epicenter of a high crime area and that there was a factual dispute whether it was lighted and in close proximity of two 24-hour business establishments.
I believe that the district court properly determined that a “special relationship” was not created under the circumstances present on the early morning hours of September 23, 1984 and further, that Ostran-der was entitled to qualified immunity:
... Wood was an adult female, admittedly able to exercise the independent judgment of an ordinary adult. She was left within walking distance of two open businesses where she could seek help. In this case the State had not affirmatively committed itself to protecting this class of persons. The state at the time of the indictment had no guidelines requiring the safekeeping of passengers of arrestees. In this case, it cannot be said that the state knew of Wood’s plight. This is not the type of case where the state had knowledge of a particular madman who was likely to prey on Wood. The plaintiff alleges that this particular area is a high-crime area. To hold that the trooper had a duty of protection on that basis would be to create an affirmative constitutional duty of protection, in essence, to the public as a whole. This court declines to do so. Ostrander was unaware of whether or not she had money available to seek help. Thus, even assuming that an officer in 1984, through some crystal ball analysis, could foresee the analytical approach suggested by the Ninth Circuit in 1986, a special relationship was not created. At the *1221 time of the incident Ostrander’s conduct did not violate a clearly established constitutional right. Ostrander is entitled to qualified immunity from suit for civil damages. (ER 54, p. 9.)
The district court was charitable in opining that a crystal ball might enable a police officer in 1984 to conclude what any panel of the Ninth Circuit would do when confronted with a claim such as this. In point of fact, it would place such officer in a mandatory position of a wise and all knowing prognosticator. Clearly an untenable expectation under the pronouncements of this Court and the United States Supreme Court.
A reading of the three separate opinions of the panel in White v. Rockford, 592 F.2d 381 (7th Cir.1979), discloses the importance of the plaintiffs’ status as children and the characteristics of the area where they were abandoned to the finding by two judges of a “special relationship.” The prefatory statement in Judge Sprecher’s opinion makes this evident:
The issue presented by this case is whether police officers may, with constitutional impunity, abandon children and leave them in health-endangering situations after having arrested their custodian and thereby depriving them of adult protection. We hold that they may not, and accordingly, we reverse the district court’s dismissal of a complaint alleging such facts and remand for trial.
Id., p. 382.
This same theme was expressed in the concurring opinion:
In the case at bar the children in the car had a federally protected right to be free from unjustified intrusions on their personal security by the police. Their personal security was under the protection of their uncle. If that protection was removed and no alternative protection was provided, they would be exposed to danger as occupants of an immobilized car on a highspeed expressway and to the cold. Arresting the uncle and thus removing their protection and yet leaving the children exposed to these hazards was an unjustifiable intrusion on the children’s personal security.
Id., p. 387.
A far different set of circumstances faced Ms. Wood and Officer Ostrander when they parted company. I believe that the clear holding of White (and the few cases that cite it) is that an entirely different result would have obtained had the abandoned persons in White been adults, and the area at issue a lighted street close to two business establishments. To conclude otherwise is to extend the protections of the Civil Rights Act of 1871, and the United States Constitution, to a full panoply of state tort claims against law officers, a consequence never before proposed by any other Federal Appellate Court.
I commend Judge John F. Kilkenny’s dissenting opinion (Senior Ninth Circuit Judge, sitting by designation) in White to those interested in an extended analysis of why it was that the judgment of the lower court in White, dismissing that action, should have been affirmed and why it is that a police officer in 1984 could not reasonably have known of the White case, let alone guess its impact on the situation he faced.