Opposition Brief — Rucker v. Harford County

Supreme Court, U.S.

rFiLg

ey JAN 27 1992

No. 91-1049 OFFICE GF THE CLERK |

a Re A SER BO RI —

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

JAMES H. RUCKER, et al.,

Petitioners,

V.

HARFORD COUNTY, et al.,

Res, ondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

CARMEN SHEPARD*

ANDREW H. BAIDA

STUART M. NATHAN

Assistant Attorneys General

200 St. Paul Place, 20th Floor

Baltimore, Maryland 21202

(410) 576-7291 .

Attorneys for Respondents

*Counsel of Record

{Additional counsel for Respondents listed on inside cover]

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

JEFFERSON L. BLOMQUIST

Deputy Solicitor

Harford County Department

of Law

220 S. Main Street

Bel Air, Maryland 21014

(301) 879-2000

PHILIP M. ANDREWS

KRAMON AND GRAHAM, P.A.

Sun Life Building

20 S. Charles Street

Baltimore, Maryland 21201

(410) 752-6030

MICHAEL J. TRAVIESO

GALLAGHER, EVELIUS AND JONES

218 N. Charles Street

Baltimore, Maryland 21201

(410) 727-7702

COUNTERSTATEMENT OF QUESTIONS

PRESENTED FOR REVIEW

Be Did the courts below correctly hold

that a bystander, who refuses to leave the

scene of a police arrest, was not "seized"

within the meaning of the Fourth Amendment

when he was inadvertently injured by police

officers attempting to stop a drugged suspect

who posed a threat of serious physical injury

to the officers and the public?

ws Did the Fourth Circuit properly

decide on this record that substantive due

process did not protect a bystander against

being unintentionally injured by police

officers attempting to apprehend a fleeing

and dangerous criminal suspect?

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS

PRESENTED FOR REVIEW... ccccccccccece i

COUNTERSTATEMENT OF THE CASE........ l

A. Undisputed Material

POCCR i sccceteen.eeeoneccaseen 2

B. Proceedings Below.......... 8

REASONS FOR DENYING THE WRIT....... 10

The Petition Does Not

Present A Substantial

go ig Re Ug are ae 10

A. A Bystander Inadvertently

Struck By A Bullet

Directed At A Suspect

Does Not Have A Fourth

Amendment Claim........... 10

B. The Fourth Circuit

Correctly Applied A

Substantive Due Process

Standard In Rejecting

Petitioners' Fourteenth

Amendment Claim........... 13

CONCLUSION. .ccccccccccccccveesesecs 16

TABLE OF AUTHORITIES

Cases

Apodaca v. Rio Arriba County

Sheriff's Dept., 905 F.2d

1445 (10th Cir. 1990)......

Bell v. Wolfish,

441 U.S. 520 (1979)........

Brower v. County of Inyo,

109 S.Ct. 1378 (1989)......

Campbell v. White, 916 F.2d

421 (7th Cir. 1990), cert.

denied, 111 S.Ct.

SSES (IDOE ccccccccceveveus

Daniels v. Williams,

474 U.S. 327 (1986)........

Davidson v. Cannon,

474 U.S. 344 (1986)........

Graham v. Connor,

109 S.Ct. 1865 (1989)......

Ingraham v. Wright,

430 U.S. 651 (1977)........

Jamieson v. Shaw, 772 F.2d

1205 (Sth Cir. 1985).......

Landol Rivera v. Cruz Cosme,

F.2d 791 (lst Cir. 1990)...

Roach v. City of Frederickfown,

882 F.2d 294 (8th Cir. 1989)...

- ill -

Page

Rochin v. California,

$42 U.S. 166 (19EZ). ccccccrveces 15

United States v. Lockett, 919 F.2d

88S (9th Cir. 219090). ccccccevces 13

United States v. Salerno,

461 U.S. FOO CISST ) cccvccsseces 15

Zinermon v. Burch,

110 S.Ct. 975 (1990). cceccccecs 15

Constitutional Provisions

United States Constitution

Fourth Amendment..........-. passim

Fourteenth Amendment..... 13,14-15

- iv de

No. 91-1049

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

Respondents.

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

COUNTERSTATEMENT OF THE CASE

This case stems from the chase and

apprehension of Jerry Mace who, after taking

a Ford Bronco without permission while in a

State of extreme crack cocaine intoxication,

embarked on a dangerous, reckless ride that

resulted in the accidental shooting of David

Rucker. James H. Rucker filed this action on

behalf of himself and his son, David

(collectively "Petitioners").

A. Undisputed Material Facts.

Petitioners attempt to recharacterize

Mace simply as a driver under the influence

of alcohol, whose sole misconduct consisted

of failing to pay a toll and driving at

excessive speeds. Pet. at 4. The undisputed

facts of record, however, demonstrate that

Mace's crazed and uncontrollable conduct put

everyone in his path in imminent threat of

serious injury, thus leading the Fourth

Circuit to conclude that Mace was "a madman

run amok, threatening the lives of everyone

in his way." (App. at ii'a.)

After spending the night of July 27,

1987 and the morning of July 28 smoking crack

scaine, Mace stole a friend's Ford Bronco

and drove south on Interstate 95 ("I-95").

(App. at 4a.) Maryland State Trooper Carl F.

Pearsall received a report that a Bronco was

being driven recklessly on I-95, had "run" a

toll booth without paying the toll, and was

being operated by a driver suspected of being

intoxicated. (App. at 4a.) Shortly

thereafter, Pearsall spotted Mace on I-95,

turned on his emergency equipment and

attempted to overtake him. (Id.) Mace

refused to stop for Pearsall, and instead

continued driving erratically, reaching

speeds up to 110 miles per hour, weaving in

and out of traffic, and almost hitting

several cars. (Id.) Mace drove through a

busy rest area at approximately 70-80 miles

per hour, and at one point drove onto a

median strip where he spun the car in circles

and was seen dancing in the Bronco. (lId.)

Mace eventually stopped in the median

directly in front of Pearsall's car, but when

Pearsall attempted to apprehend him, Mace

sped away driving south in the middle of the

northbound lanes of _ 1-95. (Id. ) He

continued this way for approximately We)

miles, with the oncoming traffic swerving to

avoid him, and ultimately exited I-95 against

traffic, via the northbound entrance ramp

onto Route 24. (id.)

After the State Police briefly lost

sight of Mace, Trooper James Gruver spotted

the Bronco stopped at the intersection of

Hanson Road and Route 152 and got out of his

vehicle to approach Mace. (App. at 4a.)

Mace immediately sped away, barely avoiding

another head-on collison. (Id.) Harford

County Deputy Sheriff David Alexander

stationed himself up the road to stop traffic

heading into the path of the “Bronco and to

assist Gruver in stopping Mace. (Id.) Mace

turned left onto a small field adjoining a

family's residence, followed by Gruver who

saw Mace again driving the’ Bronco in

circles. (App. at 5a.) Mace drove the

Bronco directly at Gruver's car, forcing

Gruver to swerve to avoid a collision, and

sped down Trimble Road for about a mile until

he veered up an embankment and into a

cornfield on the Heine farm, where the Bronco

was hidden from view. (lId.)

Deputy Sheriffs Stephen Bodway, Charles

Hellman, Gary Vernon, and Ricky Williams

arrived on the scene to render assistance to

Alexander and _ Gruver. (App. at 5a.)

Alexander, Hellman, Gruver and Vernon

positioned themselves at roughly the three

corners’ of the cornfield accessible to

vehicles, effectively establishing a

perimeter so as to block any attempts by Mace

to escape. (Id. )

That same evening, David Rucker drove

his employers, Michael and Valerie Baublitz,

and their three children onto Trimble Road

and headed toward the Heine driveway. (App.

at Sa.) A sheriff's patrol car blocked

Trimble Road beyond the driveway. (Id.)

Unable to proceed further, Rucker turned into

the driveway, stopped his car and,

accompanied by Michael Baublitz, approached

Deputy Vernon to find out what was going

on. (Id. ) Vernon told them that police

officers were trying to apprehend a suspect

in the cornfield and ordered them to leave.

(Id.) In response, Rucker moved his car as

ordered. (Id. ) Mrs. Baublitz and _ the

children remained in the car. Unbeknownst to

the officers, Rucker and Mr. Baublitz left

the vehicle at some point, returning to the

vicinity of the cornfield. (Id.)

Deputy Bodway proceeded along the edge

of the field as Deputy Alexander motioned him

toward the Suspected location of the

Bronco. (App. at 6a.) Once in the field,

Bodway spotted Mace in the Bronco, drew his

weapon and ordered Mace to freeze and exit

the Bronco. (i¢g.) Instead of surrendering,

Mace accelerated, sending dirt into the face

Eee

of Bodway, who fired shots at the Bronco's

tires. (Id.) Mace did not stop but drove

through the field toward the Heine driveway

where Vernon was standing. (Id.) As Vernon

looked down the driveway, he saw Deputy

Williams, and, behind Williams, Michael

Baublitz, at whom Vernon shouted to move out

of- the way. (Id. ) Vernon watched as

Baublitz turned and ran along Trimble Road,

away from the field, and disappeared from

sight. (Id.)

Mace then attempted to escape from the

cornfield, first driving at the embankment

bordering the Heine driveway, immediateiy in

front of Vernon. (App. at 6a.) Vernon

yelled to Mace to stop, but Mace refused.

(Id.) As Mace drove the Bronco down the

. driveway toward Trimble Road, Vernon crouched

and fired six shots at the right rear tire of

the escaping Bronco. (Id.) When these

efforts to stop Mace failed, Vernon then

fired six more shots at the tires as the

Bronco continued on the path toward Trimble

Road. (Id.) The Fourth Circuit assumed for

the purposes of this case that one of these

shots hit Rucker, who was apparently lying on

top of an embankment on the other side of

Trimble Road. (1d.)! Two other officers

fired at the Bronco. (App. at 7a.) Shortly

after the tires collapsed, Mace abandoned the

vehicle and was apprehended after he fled on

foot. (Id.)

B. Proceedings Below.

Petitioners brought this action alleging

numerous claims against the officers who

attempted to arrest Mace, as well as their

1 Although Petitioners assert that "Vernon was able to see

David Rucker across Trimble Road at the time of firing," Pet.

at 7, Vernon testified he could not. (App. at 6a-7a.) A

witness who was sitting in Vernon's car in the driveway

testified in deposition that she could see Rucker from her

vantage point, which was some distance from where Vernon

fired. (App. at 7a.) The Fourth Circuit found, however, that

"({tIhe relative locations of Vernon and this witness, the

relevant topography of the area at the time, are not clear

enough to refute Vernon's claim that he did not see Rucker."

(App. at 12a.)

io anaemia eae eee a.

supervisors and Harford County, seeking

monetary relief for David Rucker's

injuries. (App. at 7a.) Petitioners alleged

an unconstitutional seizure in violation of

the Fourth Amendment, violation ‘of parental

rights assertedly protected by the Fourteenth

Amendment and several state law claims.

Following two years of extensive

discovery, Respondents moved for summary

judgment on all counts. The district court

held a hearing and thereafter granted

Respondents' motions. The Fourth Circuit

affirmed, holding that on the undisputed

facts in the record, Rucker was not "seized"

within the contemplation of the Fourth

Amendment, nor did the state action

complained of constitute the oppressive abuse

of governmental - power proscribed by

substantive due process under the Fourteenth

Amendment. (App. at 8a-l3a). The petition

to this Court followed.

REASONS FOR DENYING THE WRIT

The Petition Does Not Present

A Substantial Federal Question

Because the decision below conforms with

prior decisions of this Court and other

federal appellate courts, further review of

this case is unwarranted. Simply put, this

is a factually unique case that raises no

novel or unsettled questions of federal law

on which the lower federal courts require the

guidance of this Court.

A. A Bystander Inadvertently Struck

By A Bullet Directed At A Sus-

pect Does Not Have A Fourth

Amendment Claim.

The Fourth Circuit held that the Fourth

Amendment claim raised by Petitioners "is

directly foreclosed" by Brower v. County of

Inyo, 109 S.Ct. 1378 (1989) (App. at 8a),

where the Court held that a person is

"seized" for purposes of the Fourth Amendment

only when that person is the intended object

of a physical restraint. The court below

5 -cpiaaatialalllaaiaaiuiaasmasia aaa at

found that, because the undisputed summary

judgment record shows that "Rucker was not

the intended object of the shooting by which

he was injured, he was not thereby '‘'seized'

within contemplation of the fourth

amendment." (App. at 9a.)

The Fourth Circuit correctly interpreted

this Court's decision in Brower, which held

that neither the "unintended consequences of

government action" nor "the accidental

effects of otherwise lawful government

conduct" constitute a seizure. ies S.Ct. et

bSel. There is no reason to review the

Fourth Circuit's unexceptional and

straightforward application of Brower to the

undisputed facts before it.

Nor is review warranted to resolve a

supposed conflict between the decision below

and other appellate decisions. Pet. at 10-

i. The cases cited by Petitioners are

entirely consistent with the Fourth Circuit's

holding that no seizure can occur unless the

person restrained is the intended object of

the act of restraint. Compare Roach v. City

of Fredericktown, 882 F.2d 294, 296 (8th Cir.

1989) (no seizure where the defendant "did

not intend for the pursuit to end by means of

an accident with another vehicle") with

Jamieson v. Shaw, 772 F.2d 1205, 1210 (5th

Cir. 1985) (pre-Brower decision holding that

plaintiff "was '‘'seized' for purposes of the

Fourth Amendment when the officers

deliberately placed the roadblock in front of

the car in which they knew she was a

passenger"). Indeed, a aiee of other

circuit court decisions following Brower have

similarly held that facts comparable to those

here give rise to no Fourth Amendment

seizure.* The lower federal courts clearly

< See, e.g., Campbell v. White, 916 F.2d 421, 423 (7th Cir.

1990), cert. denied, 111 S.Ct. 1314 (1991); Landol Rivera v.

Cruz Cosme, 906 F.2d 791, 798 (Ist Cir. 1990); Apodaca v.

(footnote cont'd)

—. oe

need no further guidance on this issue.

B. The Fourth Circuit Correctly

Applied A Substantive Due

Process Standard In Rejecting

Petitioners’ Fourteenth Amend-

ment Claim.

Petitioners also contend that this

Court's decision in Graham v. Connor, 109

St. 1865 (1989), required the Fourth

Circuit to analyze their Fourteenth Amendment

claim under the Fourth Amendment's

"reasonableness" standard instead of under

substantive due process principles. Pet. at

19. However, Graham holds’~ only that

excessive force claims that arise "in the

course of an arrest, investigatory stop, or

other ‘seizure' of a free citizen should be

analyzed under the Fourth Amendment and its

"reasonableness' standard, rather than under

a ‘substantive due process' approach." 109

S.Ct. at 1871 (emphasis added). Because

Rio Arriba County Sheriff's Dept., 905 F.2d 1445, 1447 (10th

Cir. 1990); United States v. Lockett, 919 F.2d 585, 590 n. 4

(9th Cir. 1990).

Rucker was not "seized" by the governmental

conduct he challenges, the Fourth Amendment

"reasonableness" standard is inapplicable

here. (App. at 9a) ("the fourth ameidment's

specific protection against unreasonable

seizures of the person does not, by

definition, extend to unintentionally injured

"bystanders' such as Rucker"). This analysis

is consistent with Graham and other decisions

of this Court.?

Nor did the Fourth Circuit commit any

other error worthy of this Court's review in

resolving Petitioner's Fourteenth Amendment

claim. Substantive due process "bars certain

3 See Graham, 109 S.Ct. at 1871 ("Because the Fourth

Amendment provides an _ explicit textual source of

constitutional protection against this sort of physically

intrusive governmental conduct, that Amendment, not the

more generalized notion of ‘substantive due process,' must be

the guide for analyzing these claims."). See also Bell v.

Wolfish, 441 U.S. 520, 535-39 (1979) (Due Process Clause

protects pretrial detainees from arbitrary or purposeless

conduct); Ingraham v. Wright, 430 U.S. 651, 664-74 (1977)

(Due Process Clause and not Cruel and Unusual Punishments

Clause of the Eighth Amendment applies to disciplinary

corporal punishment in public schools).

« BO a

arbitrary, wrongful government actions,"

Zinermon v. Burch, 110 S.Ct. 975, 983 (1990),

quoting Daniels v. Williams, 474 U.S. 327,

331 (1986), and "prevents the government from

engaging in conduct that ‘shocks the con-

Sree « se OS” United States v. Salerno,

481 U.S. 739, 746 (1987), quoting Rochin v.

California, 342 U.S. 168, 172 (1962). To be

actionable, the injury attributed to govern-

mental conduct must implicate "deliberate

decisions of government officials to deprive

a person of life, liberty, or property,"

Daniels v. Williams, 474 U.S. at 331, and not

result from mere "lack of due care. .. ."

Davidson v. Cannon, 474 U.S. 344, 347 (1986).

Because a is undisputed that

{Rucker's] shooting was purely accidental,"

(App. at 12a), the Fourth Circuit found it

unnecessary to decide whether the challenged

conduct could even rise to the level of

negligence, concluding that this accidental

shooting certainly could not "constitute[]

the kind of ‘oppressive' abuse of

governmental power, see Daniels, 474 U.S. at

331, against which substantive due process

gives protection." (App. at 12a.) This

straightforward application of the principles

this Court enunciated in Daniels and Davidson

involves no error that warrants this Court's

exercise of its discretionary authority.

CONCLUS ION

For the reasons stated, the petition

should be denied.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

CARMEN SHEPARD®*

ANDREW H. BAIDA

STUART M. NATHAN

Assistant Attorneys General

200 St. Paul Place, 20th Floor

Baltimore, Maryland 21202

(410) 576-7291

JEFFERSON L. BLOMQUIST

Deputy Solicitor

Harford County Department

of Law

220 S. Main Street

Bel Air, Maryland 21014

(301) 879-2000

PHILIP M. ANDREWS

Kramon and Graham, P.A.

Sun Life Building

20 S. Charles Street

Baltimore, Maryland 21201

(410) 752-6030

MICHAEL J. TRAVIESO

Gallagher, Evelius and Jones

218 N. Charles Street

Baltimore, Maryland 21201

(410) 727-7702

Attorneys for Respondents

*Counsel of Record

A:DPC: AHB9204