L.W. v. Dee Grubbs Thomas Nelson Marlin Hutton Richard Hill

FERNANDEZ, Circuit Judge,

concurring and dissenting:

Although I concur in the majority opinion for the most part, I write separately to clarify the scope of my concurrence, and to dissent in part.

I believe that any explication of the law in this area must start with Collins v. City of Marker Heights, 503 U.S. 115 , 112 S.Ct. 1061 , 117 L.Ed.2d 261 (1992). In Collins , the Supreme Court was dealing with a situation where a supervisor placed a government employee in a position of danger which resulted in the employee’s death. The complaint did not allege that there was any intent to deliberately harm the employee and did not even say that the supervisor knew, or should have known, that there was a significant risk of injury. Id. at 125-26 , 112 S.Ct. at 1069 . The plaintiff argued that “the Federal Constitution imposes a duty on the city to provide its employees with minimal levels of safety and security in the workplace, or that the city’s ‘deliberate indifference’ to Collins’ safety was arbitrary government action that must ‘shock the conscience’ of federal judges.” Id. at 126 , 112 S.Ct. at 1069 . The Court did not reject the possibility that those theories could serve as separate bases of liability. It dealt with the first one by pointing out that there was no free-floating right to any particular level of safety and went on to opine that, in general, some rather deliberate sort of action was required before a constitutional wrong could be found. Id. at 127 n. 10, 112 S.Ct. at 1069 n. 10.

In the ease at hand, we are rejecting any standard short of deliberate indifference when a public employee claims a substantive due process right to be free from harm. That is compatible with the first theory in Collins , and I, therefore, agree. But that will not always be the end of the matter because Collins did not stop there; it went on to discuss the second theory.

Depending on how Collins is read, the Court either required that the government *901 employee’s action must also shock the conscience (or, perhaps, be arbitrary in the constitutional sense), or it recognized that the shocks the conscience test is an entirely separate basis for finding a substantive due process violation. As the Court said:

We also are not persuaded that the city’s alleged failure to train its employees, or to warn them about known risks of harm, was an omission that can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense.... Because the Due Process Clause “does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society,” we have previously rejected claims that the Due Process, Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law....

Id. at 128 , 112 S.Ct. at 1070 (citation omitted).

Other circuits have incorporated that test into their jurisprudence by indicating that it must always be met in a case of this nature. The Tenth Circuit has declared that the test is a necessary overlay when substantive due process violations are claimed to arise from some governmental action. See Uhlrig v. Harder, 64 F.3d 567, 573-74 (10th Cir.1995), cert. denied, — U.S. —, 116 S.Ct. 924 , 133 L.Ed.2d 853 (1996). That is, unless the action is so outrageous that it does shock the conscience, it cannot constitute a constitutional tort at all. Just how outrageous the action would have to be is not entirely clear, especially when one recognizes that the Supreme Court seemed to use “shock the conscience” and “arbitrary in a constitutional sense” almost interchangeably.

The Third Circuit has also opined that there cannot be a substantive due process violation at all unless the conduct of a governmental employee “amounts to an abuse of official power that ‘shocks the conscience.’” See Fagan v. City of Vineland, 22 F.3d 1296, 1303-09 (3d Cir.1994) (en banc); see also, Mark v. Borough of Hatboro, 51 F.3d 1137, 1151-53 (3d Cir.) cert. denied , — U.S. —, 116 S.Ct. 165 , 133 L.Ed.2d 107 (1995). It went on to explain that while tests like gross negligence, recklessness, or even callous indifference must be met, the acts of the official must also shock the conscience before those acts are actionable.

I am not at all confident that those circuits are exactly fight. My confidence is particularly shaken when I consider that in Collins none of the ordinary tort indicia were present. Indeed, the Court pointed out that it was not alleged that the supervisor knew of a significant risk or even that he should have known of one. Still, the Court gave serious consideration to the shocks the conscience test. Thus, it may well be that the Court sees that test as a separate way to create a substantive due process liability and that the liability might even exist in some cases where the individual was grossly negligent.

If the danger is extremely high, we may well demand much more of those who could loose it upon us, and our consciences might be highly shocked when they do not live up to our expectations. As the Fifth Circuit has said:

Many courts have simply applied common law tort principles to the concept of abuse of government power holding that, while simple negligence is not actionable under § 1983, gross negligence, recklessness, callous indifference or intentional conduct are_ While terms applicable to common law torts may help to determine what type of conduct constitutes abuse of power, use of such terms can be misleading.... Such terms state only a standard of care. They do not take into account the exact responsibilities of a particular official or his power to take certain actions.

Love v. King, 784 F.2d 708, 713 (5th Cir.1986) (citations omitted). That statement and statements like it generally seem to assume that some exacerbated mental element will always be found. Perhaps so, but I rather expect that the relationship between mental states, possible harm, foreseeable risk, and actual harm is what has led to the somewhat inconsistent locutions that we find in some of our prior cases.

In general our task is not quite complete once we identify some tort-like mental state, if we are speaking of a substantive due process claim which is not linked to a specific constitutional provision. Perhaps shocks the conscience is an entirely separate freestanding inquiry wholly apart from normal constitutional tort theory, or perhaps it is an inqui *902 ry that must be made in every constitutional tort claim of this type. We need not resolve that issue today because the parties have not argued it at any level. They have satisfied themselves with arguing the mental state question answered in the majority opinion. But there the issue is, lurking in the legal background, and we cannot ultimately ignore it.

The issue must be resolved, but that resolution must await another case. What we cannot do is avoid it by eliding what the Supreme Court has written. Perhaps the best solution is to use an apotropaic eraser on the phrase “shocks the conscience,” but it is up to the Supreme Court to use it. Thus, I concur in all but the attempt to do that which we cannot do; as to that attempt, I dissent.