Petition — James R. Jackson, Individually and as Administrator of the Estate of Sandra A. Jackson v. City of Joliet

Office - Supreme Court, U.S.

No 83-853) Cerra

NOV

In THe

21 1983

ALEXANDER L. STEVAS,

Supreme Court of the United States:

LERK

Octoser Term, 1983

JAMES R. JACKSON, individually and as administrator of the

estates of Sandra A. Jackson, deceased, and Baby Boy Jack-

son, deceased, we

Petitioner,

CITY OF JOLIET, et al.

Respondents.

VELVA ROSS, individually and as administrator of the estate of

Jerry D. Ross, Jr., deceased,

Petitioner,

CITY OF JOLIET, et al.,

Respondents.

VELVA ROSS, individually and as administrator of the estate of

Jerry D. Ross, Jr., deceased,

Petitioner,

V.

COUNTY OF WILL, a municipal corporation, and ROBERT

TEZAK, Will County Coroner,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

' TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MICHAEL 8. KLEIN JOHN M. MOLLOY

150 N. Wacker Drive 188 W. Randolph Street

Chicago, Illinois 60606 Chicago, Illinois 60601

(312) 332-0344 (312) 332-1199

Counsel for Petitioner JOHN L. GUBBINS

JAMES R. JACKSON Three First National Plaza

Chicago, Illinois 60602

Counsel of Record: (312) 444-1000

MARK H. MENNES Counsel for Petitioner

19 W. Jackson Boulevard VELVA ROSS

Chicago, Illinois 60604

(312) 236-0415

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTIONS PRESENTED

1. Whether a reckless deprivation of life or liberty

violates substantive due process.

2. Whether the lack of an adequate state remedy after

a deprivation of life or liberty violates procedural due

process.

3. Whether reckless performance of governmental serv-

ices after performance begins violates due process.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .................

TABLE OF AUTHORITIES .................

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asi ind 6s bbe dus 5460096009 00%

STATUTORY PROVISION INVOLVED ......

STATEMENT OF THE CASE ...............

REASONS FOR GRANTING THE WRIT:

I.

THE DECISION BELOW CONFLICTS

WITH THE DECISIONS OF THIS COURT

AND OTHER COURTS OF APPEALS AS

TO THE PROPER INTERPRETATION OF

THE FOURTEENTH AMENDMENT ....

A. The Decision Below Conflicts With The

Decisions Of This Court And Other

Courts Of Appeals On The Issue Of

Whether Reckless Deprivations Of Life

Or Liberty Can Constitute Violations Of

EMS At I De nen ee

B. The Circuits Are Split On The Issue Of

Whether The Lack Of An Adequate State

Remedy After A Deprivation Of Life

Or Liberty Violates Procedural Due

i Ws« 66 p66 be We UN SSO ee Une Keeeee

C. The Decision Below Conflicts With The

Decision Of Another Court Of On

The Issue Of Whether Reckless Perform-

ance Of Governmental Services After Per-

formance Begins Violates Due Process .

onwnw hw E:

eo ~!

4 «=

— se

iii

Il.

THIS CASE INVOLVES IMPORTANT

QUESTIONS NEEDING RESOLUTION BY

RU ENEEEEE 0'0cs 6 sh ccatlpainstseacenes 9

NEE: a's ode os os kRCs Gibe ee odd see ee 9

APPENDIX

Court of Appeals Decision, August 23, 1983 ... la

District Court Order, August 28, 1982 ........ 12a

District Court Order, August 23, 1982 ........ 13a

Ill. Rev. Stat. 1981, ch. 85, 94-102 ........... l4a

Ill. Rev. Stat. 1981, ch. 85, 95-108(b) ........ l4a

TABLE OF AUTHORITIES

Cases Page

Avery v. County of Burke, 660 F.2d 111 (CA 4

DED 6oc bddtiwaw Xs. co's nana éaeemees eee 5

Brewer v. Blackwell, 692 F.2d 387 (CA 5 1982) . 7

Clark v. Taylor, 710 F.2d 4 (CA 1 1983) ..... 5

Daniels v. Twin Oaks Nursing Home, 692 F.2d

Se ee OE PE 6S pn eknedeiphseneanwdkes 5

Doe v. New York City Dept. of Social Services, 709

fw £2 nS | SepPrer rec rrry tte 5

Duncan v. Poythress, 657 F.2d 691 (CA 5 1981) .. 7

Ellis v. Hamilton, 669 F.2d 510 (CA 7 1982). , 7

Flower Cab Co. v. Petitte, 685 F.2d 192 (CA 7

MN iS bs cgdc enh ondéee basis Gant bakemeke nn 7

Haygood v. Younger, No. 81-4686 (CA 9 Oct. 25,

EE Ss chbeds weendensnash otcieg des aee cian 7

iv

Herrera v. Valentine, 653 F.2d 1220 (CA 8 1981).. 5,6

Hirst v. Gertzen, 676 F.2d 1252 (CA 9 1982). 6

Hull v. City of Duncanville, 678 F.2d 582 (CA 5

MOU wecodeps v0-dcin.d soe cnmameed men eeee 5

Logan v. Zimmerman Brush Co., 455 U.S. 422

SEE nos tS bbnchdanes ehepeeeiawannanee a 6

Monroe v. Pape, 365 U.S. 167 (1961) ......... 7

Morrison v. Washington County, Alabama, 700

ee. gy Bie ear y 6, 8

Parratt v. Taylor, 451 U.S. 321 (1981) ........ 5

Rutledge v. Arizona Board of Regents, 660 F.2d

SE MAE. BOOED ‘cccceevkbenebvedaawees ene 7

Smith v. Wade, ..... US. ....., 108 S.Ct. 1625 (1983) . 6

Wright v. City of Ozark, 715 F.2d 1513 (CA 11

BN a chek eit ain ce Mee ee oe v ewe ae ereae 8

Statutes

Be. Bes ‘PED ck ns cd atvendesaaeediecamne 2

a RD esiénvavdicricencns’ +ixumeee 4

42 U.S.C. § 1983 (Supp. IV 1980) ............ passim

Ill. Rev. Stat. 1981, ch. 85, 4-102 ........... 6

Ill. Rev. Stat. 1981, ch. 85, 45-108(b) ......... 6

In Tue

Supreme Court of the Anited States

Ocroser Term, 1983

JAMES R. JACKSON, individually and as administrator of the

estates of Sandra A. Jackson, deceased, and Baby Boy Jack-

son, deceased, My

Petitioner,

CITY OF JOLIET, et al,

Respondents.

VELVA ROSS, individually and as administrator of the estate of

Jerry D. Ross, Jr., deceased,

Petitioner,

CITY OF JOLIET, et al.,

Respondents.

VELVA BOSS, individually and as administrator of the estate of

Jerry D. Ross, Jr., deceased,

Petitioner,

Vv.

COUNTY OF WILL, a municipal corporation, and ROBERT

TEZAK, Will County Coroner,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners respectfully pray that a writ of certiorari be

issued to review the judgment of the United States Court

of Appeals for the Seventh Circuit entered in favor of

respondents on August 23, 1983.

em

OPINIONS BELOW

The opinion of the court below dated August 23, 1983,

is reported at 715 F.2d 1200 (CA 7 1983), and appears

in the Appendix at la-lla. The August 23, 1982 orders

of the United States District Court for the Northern

District of Illinois, Eastern Division, have not been

reported and appear in the Appendix at 12a-18a.

JURISDICTION

The judgment of the Court of Appeals for the Seventh

Circuit was entered on August 23, 1983 and this petition

for certiorari was filed within 90 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1983 (Supp. IV 1980)

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or Ter-

ritory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured

in an action at law, suit in equity, or other proper pro-

ceeding for redress. For the purposes of this section, any

Act of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the Dis-

trict of Columbia.

iti

STATEMENT OF THE CASE

These two consolidated cases were before the court

below on an interlocutory appeal, by the respondents, of

the District Court’s denial of their motions to dismiss peti-

tioners’ complaints for failure to state causes of action

under 42 U.S.C. § 1983.

Petitioners’ complaints alleged essentially the same facts

which, in the present procedural posture, are taken as

true and indicate that petitioners’ decedents were killed

as a result of respondents’ reckless conduct.

On November 21, 1980, Jerry D. Ross, Jr., Sandra A.

Jackson and her unborn infant, Baby Boy Jackson, died

of smoke inhalation while they were seated in a car which

had been caused to leave the roadway. At approximate-

ly 9:37 p.m., that night, respondent Taylor, a City of Joliet

police officer, came upon that car. Its engine was run-

ning, its lamps were lit, and its wheels were spinning.

Taylor either knew the petitioners’ decedents were in the

car, or, recklessly failed to discover their presence. He

reported the car, allegedly on fire, to the City of Joliet

Fire Department. He then left the scene without making

any attempt to remove the occupants, cali for an am-

bulance or even inform the Fire Department that the car

was occupied. Taylor then took up a position to divert

civilian traffic which might have passed by the car and

stopped to help its occupants.

At 9:48 p.m., Joliet firemen, respondents Horn, Speaker,

Tatro, Walsh and Morris, arrived at the scene, quashed

the,alleged fire and for another thirty-one minutes, re-

mained at the scene, again without calling for medical help

or removing anyone from the car.

At 10:26 p.m., a Joliet ambulance arrived, removed

Jackson from the car, rendered aid to her and then trans-

aan

ported her to the hospital where she and her fetus died

at 10:55 p.m., one hour and eighteen minutes after the

car was first discovered.

Throughout this entire period, no attempt was made to

render aid to Ross who was still alive; on the contrary,

slumped over.the wheel of the car, he was left in the ve-

hicle, and was finally removed by the tow-truck driver

called by the police department to remove the car. From

9:37 p.m., until his death at 11:45 p.m., no aid whatsoever

was rendered to Ross even though the girl was found

alive and transported to the hospital.

At the time, there was a regulation promulgated by

respondent, Will County, and its coroner, respondent

Tezak, which instructed government personnel not to

touch persons they presumed to be dead. This regulation

was adopted by Joliet and its supervisory personnel,

respondents Breen and Walsh, who ordered their person-

nel to implement that regulation even though the person-

nel were untrained in the means of determining death.

Acting under this regulation, the personnel at the scene

made no attempt to save Ross because he was erroneously

presumed to be dead.

All respondents filed motions to dismiss the complaints

for failure to state causes of action under 42 U.S.C.

§ 1983. The sufficiency of the pendent state claims was

not challenged. The District Court denied the motions to

dismiss and an interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b), was taken. The Court of Appeals reversed and

remanded the cases for dismissal for failure to state fed-

eral claims. In so ordering, the court rejected petitioners’

arguments that the respondents had violated the dece-

dents’ substantive due process right to life and liberty

under the Fourteenth Amendment, and procedural due

process right under the Fourteenth Amendment.

nie aw

~§-

REASONS FOR GRANTING THE WRIT

I.

THE DECISION BELOW CONFLICTS WITH THE DE-

CISIONS OF THIS COURT AND OTHER COURTS OF AP-

PEALS AS TO THE PROPER INTERPRETATION OF THE

FOURTEENTH AMENDMENT.

Two and a half years ago, this Court in Parratt v.

Taylor, 451 U.S. 321 (1981), held that there is no state-

of-mind requirement under § 1983, and thus concluded

that a negligent deprivation of property under color of

law would violate due process if there is no adequate post-

deprivation state remedy for the random and unauthorized

acts. However, “{tJhe courts that have attempted to im-

plement the Parratt decision, have thus far been unable

to reach a concensus as to the full meaning and reach of

the decision.” Daniels v. Twin Oaks Nursing Home, 692

F.2d 1321, 1330 n.3 (CA 11 1982).

A. The Decision Below Conflicts With The Decisions Of

This Court And Other Courts Of Appeals On The Issue

Of Whether Reckless Deprivations Of Life Or Liberty

Can Constitute Violations Of Due Process.

Based on Parratt, the circuits are split on the issue of

whether negligent or reckless deprivations of life or liber-

ty can constitute violations of due process. Hull v. City

of Duncanville, 678 F.2d 582, 585 (CA 5 1982), and the

Seventh Circuit in its opinion in the instant case, held

that such inaction is not actionable. Other circuits do not

agree. Clark v. Taylor, 710 F.2d 4, 10-11 (CA 1 1983);

Doe v. New York City Dept. of Social Services, 709 F.2d

782, 787 (CA 2 1983); Avery v. County of Burke, 660 F.2d

111, 114 (CA 4 1981); Herrera v. Valentine, 653 F.2d 1220,

-™

1225 (CA 8 1981); Hirst v. Gertzen, 676 F.2d 1252, 1265

(CA 9 1982); Morrison v. Washington County, Alabama,

700 F.2d 678, 682-83 (CA 11 1988).

The holding below also conflicts with decisions of this

Court on this issue. In Smith v. Wade, ..... US. ....., 108

S.Ct. 1625 (1983), this Court held that punitive, as well

as compensatory damages, are awardable for a reckless

deprivation of plaintiff's constitutional rights. Also, in a

procedural due process context, this Court held in Logan

v. Zimmerman Brush Co., 455 U.S. 422 (1982), that when

it is the governmental system itself and not an individual

actor that destroys a person’s due process interests, it

is irrelevant whether the action is taken through “negli-

gence, maliciousness, or otherwise’’. Jd. at 436. In this

case, it was the Will County regulation as applied that

destroyed Ross’ due process interests. Accordingly, the

state of mind of the respondents Will County and Tezak

are irrelevant to the due process analysis. Instead, all that

is required to state a claim for a due process violation

is that ‘“‘established state procedure” destroyed the

decedents’ rights without according them proper pro-

cedural safeguards. Jd. at 436. Thus, under this procedural

due process analysis, the question of the adequacy of the

state remedy may well be determinative.

In the instant case, petitioners raised in the Court of

Appeals the fact that there is no adequate state rem-

edy because the respondent police officers and firemen

are all conferred with absolute immunity from liability.

Ill.Rev.Stat.1981, ch. 85, { 4-102; ¢ 5-103(b) (see Appen-

dix at. 14a). In spite of this, the Court of Appeals ruled

against petitioners.

a

B. The Circuits Are Split On The Issue Of Whether The

Lack Of An Adequate State Remedy After A Depriva-

tion Of Life Or Liberty Violates Procedural Due

Process.

The circuits are split on the issue of whether adequate

state remedies are relevant to cases involving life or liber-

ty interests or substantive due process.! For example, the

Ninth Circuit in Rutledge v. Arizona Board of Regents,

660 F.2d 1345, 1852 (CA 9 1981), read Parratt to mean

that the availability of a state tort remedy for assault and

battery prevents the victim from being deprived of his

“liberty” within the meaning of the Fourteenth Amend-

ment. Thus, in that Circuit, the traditional distinction be-

tween substantive due process and procedural due pro-

cess has been blurred and the holding in Monroe v. Pape,

365 U.S. 167 (1961), that the availability of state tort

remedies is irrelevant to substantive “liberty” depriva-

tions, can no longer be considered good law in that Cir-

cuit. See also Haygood v. Younger, No. 81-4686 (CA 9

Oct. 25, 1983) and the cases it collected.

The Seventh Circuit has taken the same approach in

Ellis v. Hamilton, 669 F.2d 510, 515 (CA 7 1982), by

holding that an adequate state remedy would prevent a

deprivation of life or liberty under the due process clause.

See also Flower Cab Co. v. Petitte, 685 F.2d 192, 198 (CA

7 1982). On the other hand, the Fifth Circuit has held

Parratt inapplicable to substantive due process (Duncan

v. Poythress, 657 F.2d 691, 704-05 (CA 5 1981)), and

deprivations of liberty. Brewer v. Blackwell, 692 F.2d 387,

394-95 (CA 5 1982).

1 Petitioners raised this issue in the Court of but the

court failed to address it. However, a holding for Petitioners on

the basis of the lower court’s decision may place this issue square-

ly before this Court.

ss

C. The Decision Below Conflicts With The Decision Of

Another Court Of Appeals On The Issue Of Whether

Reckless Performance Of Governmental Services After

Performance Begins Violates Due Process.

The lower court’s holding that a municipality can never

be liable for reckless performance of governmental serv-

ices after performance begins (715 F.2d at 1205) conflicts

with the decision of another Court of Appeals. In Mor-

rison v. Washington County, Alabama, 700 F.2d 678 (CA

11 1983), the defendant county hospital had begun its

treatment of plaintiff. Subsequently, plaintiff was dis-

charged because the hospital “took no action”. Jd. at 682.

The trial court granted the hospital summary judgment

on the § 1983 count and the Court of Appeals reversed.

Under the reasoning of the court below in the instant

case, summary judgment for the hospital in Morrison

should have been sustained because:

it is essentially inaction; and it was remote from the

concerns of the framers of the Fourteenth Amend-

ment. Although there are many hazards of which the

framers of the Fourteenth Amendment and the Civil

Rights Act of 1871 could not have been aware, fire—a

greater hazard in the nineteenth century than it is

today—and accidents, and careless policemen, careless

firemen and careless medical workers, are not among

them. What happened in this case is not the kind of

thing that the ers were not concerned about be-

cause they could not foresee but the kind of thi

they knew about and surely did not think requi

a federal tort remedy to prevent.

Id. at 1205. See also Wright v. City of Ozark, 715 F.2d

1513, 1515-16 (CA 11 1983). A clear split in the Circuits

exists.

These conflicts justify the grant of certiorari to review

the judgment below.

a

THIS CASE INVOLVES IMPORTANT QUESTIONS

NEEDING RESOLUTION BY THIS COURT.

§ 1983 cases are an important and large part of the

federal case load. The questions presented by this case

are being addressed constantly by federal courts and a

tremendous amount of judicial resources are being spent

on analyzing divergent opinions in the circuits on these

issues. Only a decision by this Court will restore uni-

formity and prevent the address of the courthouse from

being the determinative factor in the outcome of a § 1983

case.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Seventh Circuit.

Respectfully submitted,

MICHAEL 8. KLEIN JOHN M. MOLLOY

150 N. Wacker Drive 188. W. Randolph Street

Chicago, Illinois 60606 Chicago, Illinois 60601

(312) 332-0344 (312) 332-1199

Counsel for Petitioner JOHN L. GUBBINS

JAMES R. JACKSON Three First National Plaza

Chicago, Illinois 60602

Counsel of Record: (312) 444-1000

MARK H. MENNES Counsel for Petitioner

19 W. Jackson Boulevard VELVA ROSS

Chicago, Illinois 60604

(312) 236-0415

APPLNDIX

—jla—

. IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 82-2833

JAMES R. JACKSON, individually and as administrator of the

estates of Sandra A. Jackson, deceased, and Baby Boy

Jackson, deceased,

Plaintiff-A ppellee,

v.

CiTy OF JOLIET, et al.,

Defendants-A ppellants.

No. 82-2834

VELVA Ross, individually and as administrator of the estate of

Jerry D. Ross, Jr., deceased,

Plaintiff-A ppellee,

v.

CITY OF JOLIET, et al.,

Defendants-A ppellants.

No. 82-2835

VELVA Ross, individually and as administrator of the estate of

Jerry D. Ross, Jr., deceased,

Plaintiff-A ppellee,

v.

COUNTY OF WILL, a municipal corporation, and ROBERT TEZAK,

Will County Coroner,

Defendants-A ppellants.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 81 C 6518, 81 C 6519—Joseph Sam Perry, Judge.

ARGUED May 26, 19838—DEcIDED AUGUST 23, 1983

nlite

Before POSNER and CoFFEY, Circuit Judges, and WYATT,

Senior District Judge.*

POSNER, Circuit Judge. No problem so perplexes the

federal courts today as determining the outer bounds of

section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983,

the ubiquitous tort remedy for deprivations of rights

secured by federal law (primarily the Fourteenth Amend-

ment) by persons acting under color of state law. In the

present cases, which are before us on interlocutory ap-

peal under 28 U.S.C. § 1292(b) from denial of the defend-

ants’ motions to dismiss the complaints for failure to state

a claim, see Fed. R. Civ. P. 12(b\(6), the specific question

is whether the negligent failure of local public-safety

workers to save the cecupants of a burning automobile is

actionable under section 1983 as a deprivation of life

without due process of law.

The procedural posture of the cases requires us to take

as true the facts alleged in the complaints On Novem-

ber 21, 1980, at about 9:35 p.m., Jerry Ross, age 17. ac-

companied by Sandra Jackson, age 16, and six months

pregnant, was driving on a road in Joliet, Illinois, when

the car swerved off the road for unknown reasons,

crashed, and burst into flames. Two minutes later a Joliet

policeman, defendant Taylor, chanced on the scene. Al-

though the car’s wheels were spinning, its lights were on,

its motor was running, and it was burning, Taylor made

no attempt to determine whether it was occupied and did

not call an ambulance. He did call the fire department (at

9:40) and he then returned to the road and directed

traffic away from the scene of the accident. Five Joliet

firemen, also defendants, arrived eight minutes later. At

10:19, having put out the fire, they first noticed Ross and

Jackson slumped in the front seat of the car. They made

no attempt to remove or assist either one but they did call

an ambulance, which arrived at 10:26. The firemen and

* Hon. Inzer B. Wyatt of the Southern District of New York,

sitting by designation.

ilies

ambulance paramedics thought Ross dead and left him in

the car, but they removed Sandra Jackson alive and took

her to a hospital. She was admitted at 10:40 and pro-

nounced dead, along with her fetus, at 10:55. Ross was

later removed from his car by a tow-truck driver and

pronounced dead by the county coroner (also a defendant)

when the coroner arrived at 11:45.

The plaintiffs (representing Ross, Jackson, and the

fetus) allege that their decedents would have been saved

if Taylor had aided the occupants of the burning car, or

called an ambulance, or at least not directed traffic ina

way that prevented other potential rescuers from saving

them, or if the firemen had discovered the car was oc-

cupied before the fire was put out or at least had aided

the occupants then. The coroner is a defendant in Ross’s

suit because he had issued a directive that no nonsupervi-

sory personnel (such as the firemen who discovered Ross)

were to touch a corpse unless someone from his office was

present, and Ross may have been alive when they dis-

covered him. The city’s police and fire chiefs, and the city

and county themselves, are additional defendants, but we

shall not have to consider their liability separately, or

decide whether a section 1983 suit can be maintained on

behalf of a deceased six-month-old fetus. The complaints

also contain pendent claims under state tort law but the

plaintiffs concede as they must that if their section 1983

claims are dismissed on the pleadings the pendent claims

should also be dismissed. United Mine Workers v. Gibbs,

383 U.S. 715, 726 (1966).

Although the complaints are liberally sprinkled with

words like “recklessly” and “knowingly,” it is apparent

and was admitted by the plaintiffs’ counsel at oral argu-

ment that the plaintiffs do not believe that any of the

defendants wanted to injure or kill the plaintiffs’ dece-

dents or could be charged with homicide, manslaughter,

or some other crime or even with an intentional tort such

as battery. It would be a different case if intentional mis-

conduct were alleged; we may assume that if officer

Taylor, knowing the car was occupied and wanting

the occupants to be burned to death, directed traffic

—4a—

away from the scene in order to prevent any passing

driver from saving them, he would be liable under

section 1983 for having under color of the city ordinance

making him a public officer deprived the plaintiffs’ de-

cedents of their lives without due process of law. See

Brazier v. Cherry, 293 F.2d 401, 404-05 (5th Cir. 1961);

cf. State Bank v. Camic, No. 82-2781, slip op. 13 (7th Cir.

July 13, 1983). But all that the complaints in fact allege

are thac Taylor, negligently—at worst, grossly so—failed

to save anyone who might be trapped in the burning car

and prevented other motorists from doing so; that like-

wise the firemen, through negligence or gross negligence,

failed to rescue the plaintiffs’ decedents from the burn-

ing car or to assist them after the fire was put out; and

that the coroner had issued a foolish rule which pre-

vented the firemen and paramedics, who were not

competent to determine without touching Ross whether

rlinice Faotguag from aiding him while he may still have

n alive.

Now there is of course no general common law duty to

rescue a stranger in distress even if the rescue can be ac-

complished at no cost to the rescuer. See, e.g., Yanza v.

Bigan, 397 Pa. 316, 155 A.2d 343 (1959). And although

circumstances can create such a duty, see, e.g., DePue v.

Flateau, 100 Minn. 299, 111 N.W. 1 (1907); Hutchinson v.

Dickie, 162 F.2d 103 (9th Cir. 1947), a mere failure to

rescue is not tortious just because the defendant is a

public officer whose official duties include aiding le

in distress. Warren v. District of Columbia, 444 A.2d 1, 3-9

(D.C. Ct. App. 1981); Williams v. California, 44 Cal. 3d 18,

664 P.2d 137 (1983). But if you do begin to rescue someone

you must complete the rescue in a nonnegligent fashion

even though you had no duty of rescue in the first an

See, e.g., Cross v. Wells Fargo Alarm Services, 82 Ill. 2d

813, 317, 412 N.E.2d 472, 474 (1980); Farwell v. Keaton,

396 Mich. 281, 240 N.W.2d 217 (1976); Restatement (Sec-

ond) of Torts § 323 (1965). The rationale is that other

potential rescuers (if any) will be less likely to assist if

they see that someone is already at the scene giving aid.

See, e.g., United States v. Lawter, 219 F.2d 559, 562 (5th

Cir. 1955). This rationale is strained in some cases, cf. Re-

om “ae

statement, supra, § 323, comment e; Prosser, Handbook

of the Law of Torts 347-48 (4th ed. 1971), but not here:

with a policeman and firemen at the scene of the acci-

dent, no motorist was likely to assist the occupants of

Ross’s burning car—especially when the police officer

was directing them away from the scene.

But even if the complaints state good claims under

general tort principles, it does not follow that they state

good claims under section 1983 just because the deferd-

ants are public officers. See, e.g., Street v. Surdyka, 492

F.2d 369, 371 (4th Cir. 1974); Williams v. Thomas, 692

F.2d 1032, 1035 (5th Cir. 1982). Section 1983 provides a

remedy only for violations of federal law. Although the

complaints allege violations of both the equal protection

and due process clauses of the Fourteenth Amendment,

they clearly state no claims under the former. If the de-

fendants had withheld protection from the plaintiffs’

decedents because they were blacks or members of some

other vulnerable minority—if the defendants were dis-

criminating in a vicious or irrational fashion—there

would be an equal protection issue. See Smith v. Ross, 482

F.2d 33, 36-37 (6th Cir. 1973) (per curiam). But only de-

liberate discrimination violates equal protection, Shango

v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982), and is not

alleged in this case. The defendants did not know that

anyone, alive or dead, was in the car until they put out

the fire. They certainly did not know whether there was

anyone belonging to a group to which they were hostile.

If the plaintiffs have a claim it is under the Fourteenth

Amendment’s due process clause, which forbids the state

to deprive anyone of life, liberty, or property without due

process of law. There are two ways in which the com-

plaints might be thought to allege a violation of the due

process clause. First, it could be argued that the liberties

secured by the clause include not only the traditional

negative liberties—the right to be let alone, in its various

forms—but also certain positive liberties, including the

right to receive the elementary protective services that

the state routinely provides users of its highways. If so,

—ta—

and a state officer deprives a person of such a liberty and

death ensues as a proximate result, damages for that

death could be recovered under section 1983.

The problem with this argument is that the Constitu-

tion is a charter of negative rather than positive liberties.

Harris v. McRae, 448 U.S. 297, 318 (1980); Bowers v.

DeVito, 686 F.2d 616, 618 (7th Cir. 1982). The men who

wrote the Bill of Rights were not concerned that govern-

ment might do too little for the people but that it might

do too much to them. The Fourteenth Amendment,

adopted in 1868 at the height of laissez-faire thinking,

sought to protect Americans from oppression by state

government, not to secure them basic governmental

services. Of course, even in the laissez-faire era only

anarchists thought the state should not provide the type

of protective services at issue in this case. But no one

thought federal constitutional guarantees or federal tort

remedies necessary to prod the states to provide the

services that everyone wanted provided. The concern was

that some states might provide those services to all but

blacks, and the equal protection clause prevents that kind

of discrimination.

The modern expansion of government has led to pro-

posals for reinterpreting the Fourteenth Amendment to

guarantee the provision of basic services such as edu-

cation, poor relief, and, presumably, police protection,

even if they are not being withheld discriminatorily.

See, e.g., Michelman, Foreword: On Protecting the Poor

Through the Fourteenth Amendment, 83 Harv. L. Rev. 7

(1979). To adopt these proposals, however, would be more

than an extension of traditional conceptions of the due

process clause. It would turn the clause on its head. It

would change it from a protection against coercion by

state government to a command that the state use its tax-

ing power to coerce some of its citizens to provide serv-

ices to others. The Supreme Court has refused to go so

far, see, e.g., San Antonio Independent School Dist. v.

Rodriguez, 411 U.S. 1 (1973), except where indigence

revents an individual (a criminal defendant in particu-

ar) from protecting himself against coercion by the state.

—7a—

See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956). Whether

the Court has refused because a guarantee of basic serv-

ice cannot easily be squared with the text or intellectual

ambience of the Fourteenth Amendment or because

judges lack objective criteria for specifying minimum

levels of public services or are reluctant to interfere with

the public finance of the states need not trouble us. It is

enough to note that, as currently understood, the concept

of liberty in the Fourteenth Amendment does not include

a right to basic services, whether competently provided

or otherwise.

But the plaintiffs have another argument: The Four-

teenth Amendment forbids a state to deprive anyone of

his life without due process of law; to deprive a person

of his life through negligence is the antithesis of due

process; therefore the complaints state a cause of action

under section 1983. This argument would succeed if the

defendants had killed the plaintiffs’ decedents in circum-

stances making the killing an intentional tort. But the

reason it would succeed is not the syllogism that the

plaintiffs press on us; it is history. The due process clause

was intended to protect the recently liberated blacks

from official oppression, and because it was decided not

to write the clause in racial terms, to protect everyone

else besides. If due process is not provided, it makes no

difference whether the state hangs you or has you shot

down in the street by a police officer. Section 1983 has

been read to take the command of the due process clause

one step further by imposing liability on officers acting

under color of, though contrary to, state law. But the

concern is with the use of state-created power to kill

rather than with the state’s failing to prevent death.

Ross’s car ran off the road and burst into flames for

reasons unrelated to the actions of any state officer. The

plaintiffs’ claim is not that the defendants tried to harm

the occupants of the car but that they failed to help them.

But the difference between harming and failing to help is

just the difference noted earlier between negative liberty

—being let alone by the state—and positive liberty—

being helped by the state. To accept the plaintiffs’ syl-

—8a—

logism would be to im by another route a du

provide basic services. ere the state acted promptly but,

it is alleged, ineffectually. The next case if this one

succeeds will be one where the police and fire depart-

ments, maybe because of budget cuts, do not arrive at the

scene of the accident at all.

True, that would be a case of pure, or at least purer,

inaction, a case where the defendants had not made the

plaintiffs’ decedents worse off but simply had failed to

make them better off. In the present case, because rescue

efforts were begun, the defendants may have made the

plaintiffs worse off; if they had done nothing, maybe

some passing motorist would have stopped and pulled the

plaintiffs’ decedents out of the burning car before it was

too late. Maybe therefore this case is like White v. Roch-

ford, 592 F.2d 381 (7th Cir. 1979), where the police ar-

rested a driver and left his child passengers stranded in a

driverless car, thus putting the children in a situation of

peril for the consequences of which the police were held

liable under section 1983; or like the cases that hold

jailers liable for injuries resulting from deliberate in-

difference to the medical needs of their prisoners, as in

Wood v. Worachek, 618 F.2d 1225, 1233 (7th Cir. 1980), or

from assaults by other inmates, as in Spence v. Staras,

507 F.2d 554, 557 (7th Cir. 1974). But such cases are

distinguishable from this one. In White v. Rochford the

arrest created the danger to the children; here the plain-

tiffs’ decedents were in great danger before the defend-

ants appeared. In the prisoner cases too, it was the state

that put the plaintiff in a pee lace of potential danger. This

case is closer to Bowers v. supra, where the state

officers did not create but ae failed to avert danger,

by negligently releasing from custody a dangerous una-

tic who killed the plaintiff's decedent; and to Hil v.

City of Duncanville, 678 F.2d 582 (5th Cir. 1982), where

the city’s negligent failure to enforce the s Any na 4 a

railroad crossiiug resulted in the plain

ee wares njured in a crossing RB Bg mye of ~

of Philadelphia, 471 F. Supp. 1262, 1266 (E.D.

—IJa—

In none of these cases was the defendants’ conduct ac-

tionable under section 1983.

Although in theory, as suggested earlier, a botched

rescue could make the objects of the rescue attempt

worse off than if the attempt had not been made, that was

also true in Bowers, Hull, and Reiff. In Hull, for example,

the plaintiff might have taken more care at the crossing

if he had known that the city was not enforcing the speed

limit. The probability that the conduct of the defendants

in this case actually made the plaintiffs’ decedents worse

off is hardly less speculative. It is extremely unlikely that

a passing motorist would enter a burning car on the off

chance that the occupants were still in it and if so were

still alive, and it is even less likely that a passing motor-

ist would have extinguished the fire. We cannot re-

solve these factual issues here; but the unlikelihood that

the plaintiffs’ decedents would have been saved by pri-

vate persons if the state had not attempted to rescue them

shows how artificial it is to argue that the defendants

deprived the plaintiffs’ decedents of their lives. If the

defendants deprived the plaintiffs’ decedents of anything

it was of some right to competent rescue services. But, as

we have been at pains to stress, there is no such right in

the Fourteenth Amendment. Of all the forms of state

oppression of the individual, that which consists of trying

but failing to assist at accidents must rank very low. It

is not “oppression” at all; it is essentially inaction;

and it was remote from the concerns of the framers

of the Fourteenth Amendment. Although there are

many hazards of which the framers of the Fourteenth

Amendment and the Civil Rights Act of 1971 could not

have been aware, fire—a greater hazard in the nine-

teenth century than it is today—and accidents, and

careless policemen, careless firemen, and careless medi-

cal workers, are not among them. What happened in this

case is not the kind of thing that the framers were not

concerned about because they could not foresee but the

kind of thing they knew about and surely did not think

required a federal tort remedy to prevent.

—10a—

There is no reason for federal judicial intervention in a

case like this. In some situations the incentives of state

and local officials to provide effective and evenhanded

aid and protection to their citizens may be distorted by

politics or prejudice; but rescuing people from burning

cars is not one of them. If local government does a bad job

of providing police and fire protection, political retribu-

tion will come swift and sure; if elected state judges

(Illinois judges are elected) do not provide evenhanded

and effective tort remedies for local victims of auto acci-

dents, their days in office may be numbered too. We need

not fear that unless the federal courts intervene the type

of incompetence alleged in these complaints will flourish

unchecked by state law.

The Civil Rights Act of 187! did not make every tort

committed under color of state law actionable in federal

court. Paul v. Davis, 424 U.S. 693, 699-701 (1976); Baker

v. McCollan, 443 U.S. 187, 146-47 (1979); Martinez v.

California, 444 U.S. 277, 285 (1980); Parratt v. Taylor,

451 U.S. 527 (1981). These cases and others we might cite

are distinguishable but they express a mood to which we

are obligated to pay respectful attention—a mood of con-

cern lest state tort law be completely swallowed up by

section 1983. The danger is acute here. In any traffic

accident case—in any accident case—one can argue that

the police, the firemen, and other public-safety workers

should have done more to assist the accident victim. If the

district court’s decision were affirmed, many traffic acci-

dents, especially single-car accidents, would become the

subject of federal litigation. Section 1983 is not a man-

date of highway safety.

We hold that an attempt by state officers to assist at an

accident is not a deprivation of life without due process of

law under the Fourteenth Amendment when the attempt

fails because of the negligence or even gross negligence of

the officers or their superiors, and the accident victim

dies. The orders of the district court denying the defen-

dants’ motions to dismiss the complaint are therefore

—lla—

reversed and the cases are remanded with directions to

dismiss the complaints for failure to state a claim under

federal law.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

4

ss

. Sr5

—12a—

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS +

EASTERN DIVISION

Name of Presiding Judge, Honorable Joseph Sam Perry

Cause No. 81 C 6518 Date August 23, 1982

James R. Jackson, etc. vs. City of Joliet, et al.

* * *

This cause comes on upon defendants’ motion to dismiss

the complaint herein. The court has read and considered

said motion and the memoranda of the respective parties

and finds that said motion should be denied for the rea-

sons explicated in plaintiff's answering memorandum, but

that the court should certify this order.

Accordingly, it is ORDERED that said motion to dismiss

is denied; that this order denying said motion involves

a controlling question of law as to which there is substan-

tial ground for difference of opinion so that the court certi-

fies that an immediate appeal from this order may ma-

terially advance the ultimate termination of the litigation;

and that if an appeal is not taken timely, defendants shall

answer said complaint within twenty days after the time

for appeal has expired.

/s/ JOSEPH SAM PERRY

ae

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Name of Presiding Judge, Honorable Joseph Sam Perry

Cause No. 81 C 6519 Date August 23, 1982

Velva Ross, etc. vs. City of Joliet, et al.

* * *

This cause comes on upon defendants’ motions to dismiss

the complaint herein, one motion filed by defendants City

of Joliet, Frederick Breen, L. Taylor, Lawrence Walsh,

Dave Horn, Joe Speaker, Robert Kuban, William Tatro,

Joe Walsh, and Larry Morris, the other motion filed by

defendants County of Will and Robert Tezak, Coroner.

The court has read and considered said motions and the

memoranda of the respective parties and finds that said

motions should be denied for the reasons explicated in

plaintiffs brief, but that the court should certify this case.

Accordingly, it is ORDERED that said motions to dismiss

are denied but that this order denying said motions in-

volves a controlling question of law as to which there is

substantial ground for difference of opinion so that this

court certifies that an immediate appeal from this order

may materially advance the ultimate termination of the

litigation.

/s) JOSEPH SAM PERRY

=e

STATUTES INVOLVED

Ill. Rev. Stat. 1981, ch. 85, § 4-102

Neither a loca) public entity nor a public employee is

liable for failure to establish a police department or other-

wise provide police protection service or, if police protec-

tion service is provided, for failure to provide adequate

police protection or service, failure to prevent the com-

mission of crimes and failure to apprehend criminals. 1965,

Aug. 18, Laws 1965, p. 2983, § 4-102.

Ill. Rev. Stat. 1981, ch. 85, § 5-103(b)

Except as provided in Section 1-4-4 of the “Illinois

Municipal Code”, approved May 29, 1961, as heretofore

or hereafter amended,! and in Section 1 of “An Act in

relation to the tort liability of firemen of fire protection

districts or corporations”, approved August 4, 1951, as

heretofore or hereafter amended,? neither a local public

entity nor a public employee acting in the scope of his

employment, is liable for an injury caused by an act or

omission of a — employee while engaged in fighting

a fire. 1965, Aug. 13, Laws 1965, p. 2983, § 5-103.

1 Chapter 24, § 1-4-4.

2 Chapter 127%, § 46.