# Opposition Brief — Rucker v. Harford County

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2254%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1097

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2254%3A2. Public record. Not legal advice.