Appendix — Countyof Sacramento v. Lewis
Supreme Court brief1998
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FILED
961387 FEB 19 1997
OFFICe OF THE CLERK
NO.
In The
SUPREME COURT OF THE UNITED STATES
October Term, 1996
+
COUNTY OF SACRAMENTO, SACRAMENTO COUNTY
SHERIFF'S DEPARTMENT, and JAMES EVERETT SMITH,
Petitioners,
Vs.
TERI LEWIS and THOMAS LEWIS, Personal
Representative of the Estate of PHILIP LEWIS
Respondents,
®
On Petition for Certiorari to the United States Court of
Appeals for the Ninth Circuit,
+
APPENDIX TO PETITION FOR
WRIT OF CERTIORARI
©
Terence J. Cassidy*
Marcos A. Kropf
Porter, Scott, Weiberg & Delehant
350 University Avenue, Suite 200
Sacramento, CA 95825
Telephone: (916)929-14810
Attorney for Petitioner
*Counsel of Record
i
TABLE OF CONTENTS
Page
Méntm Canrmese Gpeaemsem . « 2 6 ce tt ew ok
United States District Court For the
Eastern District of California's
Order Regarding Summary Judgment... . 46
Order Denying Rehearing ....... .61
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERI LEWIS and THOMAS LEWIS,
Personal Representatives of the
Estate of Philip Lewis, No .93-15924
Plaintiffs-Appellants, D.C. No.
Vv. CV-91-00505-GEB
SACRAMENTO COUNTY; SACRAMENTO
COUNTY SHERIFF'S DEPARTMENT ; OPINION
JAMES E. SMITH,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California Garland
E. Burrell, District Judge, Presiding
Argued and Submitted
October 7, 1994--San Francisco, California
Filed October 9, 1996
Before Mary M. Schroeder,* Harry; Pregerson,
and Charles Wiggins, Circuit Judges
Opinion by Judge Pregerson
Terence John Cassidy, Porter, Scott, Weiberg &
Delehand, Sacramento, California, for the
appellees. ‘
*The Honorable Harold M. Fong, United States District
Judge for the District of Hawaii participated in oral
argument. Judge Fong died on April 20, 1995. Pursuant to
Ninth Circuit General Order 9.2g, the Honorable Mary
Schroeder was drawn to replace Judge Fong on the parel.
Judge Schroeder has read the briefs, reviewed the record,
and listened to the tape of oral argument held by
telephone conference on October 7, 1994.
OPINION
PREGERSON, Circuit Judge:
This 42 U.S.C. § 1983 case involves a
high-speed pursuit of two teenagers on a
motorcycle by a law enforcement officer in
a patrol car. One of the teenagers was
killed. We have jurisdiction under 28
U.S.C. § 1291. We reverse the district
court's grant of summary judgment on the
issue of qualified immunity as to the
officer but affirm the grant of summary
judgment in favor of the municipal
defendants.
Because this case comes before us on
summary judgment, the following facts are
presented in the light most favorable to
plaintiffs. See Jesinger v. Nevada Fed.
Credit Union, 24 F.3d 1127, 1130 (9th Cir.
1994).
On the evening of May 22, 1990, at about
8:30 p.m., James Everett Smith, a
Sacramento County sheriff's deputy, along
with Murray Stapp, a Sacramento police
officer, responded to a call to break up a
fight. After handling the call, the
3
officers returned to their separate patrol
cars. As they were preparing to leave,
Officer Smith saw Stapp's overhead lights
come on and saw him yell something at two
boys riding a motorcycle. Apparently, the
windows of Smith's patrol car were up, so
Smith could not hear what Stapp yelled at
the boys. Neither boy was involved in the
altercation-they just happened to ride by.
Brian Willard was driving the motorcycle,
and Philip Lewis, the decedent, was a
passenger. Both boys were minors; Lewis
was sixteen. Neither boy wore a helmet.
Stapp pulled his vehicle closer to Smith's
to keep the motorcycle from leaving, but
Willard drove the motorcycle slowly
between the two cars and then accelerated
away. Smith executed a three point turn
and initiated a high-speed pureuit.
The pursuit lasted about seventy-five
seconds and covered approximately 1.3
miles. Posted speed limits were as low as
30 miles per hour. The average speed of
the vehicles was calculated to be 60 miles
per hour, with high speeds of up to 100
miles per hour. The pursuit went through
four stop lights and three ninety-degree
left turns. During the pursuit, Smith's
4
patrol car followed the motorcycle at a
distance of as little as 100-150 feet,
even though Smith drove at a speed that
would have required 650 feet for him to
stop his car. Smith was also driving at
such a speed that his stopping distance
was beyond the range of his headlights.
The chase ended when the motorcycle went
over a crest in the road, attempted to
make a hard left turn, and skidded to a
halt. It is unclear whether Lewis remained
seated on the motorcycle or got off. Smith
saw the stopped motorcycle as he came over
the crest of the hill. He slammed on his
brakes but was unable to stop his vehicle
in time. Smith was driving at a minimum of
65 miles per hour when he began braking.
After skidding, 147 feet, his patrol car
hit Lewis at a speed of approximately 40
miles per hour, propelling Lewis nearly 70
feet down the road. Smith's car continued
off the road, coming to rest in a
residential front yard after knocking over
a mailbox.
Lewis suffered massive internal injuries
and a fractured skull. He was pronounced
dead at the scene. Willard, the motorcycle
driver, suffered no major injuries.
5
Plaintiffs Teri and Thomas Lewis, Philip
Lewis's parents, filed suit in Sacramento
County Superior Court against Sacramento
County, the Sacramento County Sheriff's
Department, and Officer Smith. The
Lewises allege a deprivation of their
son's Fourteenth Amendment due process
rights in violation of 42 U.S.C. § 1983 and
wrongful death under California state law.
Defendants removed the case to federal
court on the basis of federal question
jurisdiction and moved for summary
judgment on various grounds.
The district court granted summary
judgment in favor of all defendants on the
§ 1983 claims. The court also granted
summary judgment in favor of Smith as to
the state causes of action. The court
denied summary judgment as to the pendent
state law causes of action against the
County and the Sheriff's department,
dismissing those claims without prejudice.
The district court's decisions are
summarized below.
First, the district court assumed, without
deciding, that Officer Smith had violated
Lewis's constitutional rights. The court
then addressed Smith's claim to qualified
immunity. The court stated that plaintiffs
had not presented, and it could not find,
any “state or federal opinion published
before May, 1990, when the alleged
misconduct took place, that supports
plaintiffs' view that they have a
Fourteenth Amendment substantive due
process right in the context of high speed
police pursuits." The court therefore
found that the law regarding Lewis's
Fourteenth Amendment right to life and
personal security was not clearly
established and granted summary judgment
in favor of Officer Smith on qualified
immunity grounds.
Second, the court granted summary judgment
in favor of the county and the sheriff's
department on plaintiffs' claim that both
entities had failed to adequately train
sheriff's deputies in high-speed pursuits.
The court found that, although Smith had
received no training in pursuits, he had
received training in high-speed driving
and that the driving skills overlapped to
some extent. The court thus concluded that
the training procedures were "not so
inherently inadequate" that the sheriff's
department and the county could be held
liable under § 1983 for inadequate
training.
Third, the court granted summary judgment
in favor of the sheriff's department,
finding that its pursuit policy was not
deliberately indifferent to Lewis's
constitutional rights. The court reasoned
that the department's policy exceeded
California statutory standards and
carefully delineated the factors an
officer should consider before initiating
or continuing a high-speed pursuit.
Finally, with respect to plaintiffs' state
law negligence claims, the court found
Officer Smith immune from suit under
California Vehicle Code § 17004. Because
the court dismissed all federal claims, it
declined to decide whether the county and
the sheriff's department were also immune
under California law. The court’ then
dismissed without prejudice the state
claims against the county and sheriff's
department to allow plaintiffs to file
those claims in state court.
Plaintiffs appeal.’
Il.
We review de novo the district court's
grant of summary judgment. We must
determine, viewing the evidence in the
light most favorable to the non-moving
party, whether there are any genuine
issues of material fact and whether the
district court correctly applied the
relevant substantive law. We do not weigh
the evidence or determine the truth of the
matter but only determine whether there is
a genuine issue of fact for trial.
Jesinger, 24 F.3d at 1130.
A.
To sustain a § 1983 civil rights action, a
plaintiff must show "(1) that the conduct
complained of was committed by a person
acting under color of state law; and (2)
that [such] conduct deprived the plaintiff
of a federal constitutional or statutory
right."* Wood v. Ostrander, 879 F.2d 583,
‘Plaintiffs do not appeal the district
court's decisions regarding the state causes of
action and we therefore do not address them.
9
587 (9th Cir. 1989), cert. denied, 498
U.S. 938 (1990). Here, it is undisputed
that defendants were acting under color of
state law. At issue here is whether
Officer Smith, the Sacramento County
Sheriff's Department, or Sacramento County
engaged in conduct that deprived Lewis of
a federally protected right.
The Suprefhne Court has held that "[w]here a
particular amendment ‘provides an explicit
textual source of constitutional
protection' against a particular sort of
government behavior, ‘that Amendment, not
the more generalized notion of
‘substantive due process,' must be the
guide for analyzing these claims."
Albright v. Oliver, 510 U.S. 266, 114
"42 U.S.C. §1983 provides, in relevant part:
{E]) very person, who, under color of any
statute, ordinance, regulation, custom,
or usage, of any State or Territory 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,
er 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
proceeding for redress.
10
S.Ct. 807, 813 (1994) (plurality opinion)
(quoting Graham v. Connor, 490 U.S. 386,
395 (1989)).
Lewis's claim as presented to us is
properly, analyzed under the Fourteenth
Amendment.’ See Pleasant v. Zamieski, 895
F.2d 272 (6th Cir. 1990) (noting that the
Supreme Court's reasoning in Tennessee v.
Garner, 471 U.S. 1 (1985), likely
"preserve [d) Fourteenth Amendment
Here, plaintiffs do not allege any Fourth or
Eighth Amendment violations. It is undisputed that
Smith did not intend to hit Lewis with his patrol
car. There was thus no Fourth Amendment violation.
See Brower v. County of Inyo, 489 U.S. 593 (1989)
(holding that Fourth Amendment seizure only occurs
“when there is a governmental termination of
freedom of movement through means intentionally
applied"); Campbell v. White, 916 F.2d 421, 423-24
(7th Cir. 1990) (holding that no Fourth Amendment
seizure occurs when police vehicle strikes and
kills suspect during a high-speed chase because the
officer did not intend to hit the suspect), cert.
denied, 499 U.S. 922 (1991); Landol-Rivera v. Cruz
Cosme, 906 F.2d 791, 793-96 (list Cir. 1990)
(holding that no Fourth Amendment seizure occurs
when police officer inadvertently shoots hostage
while aiming at captor because shooting of hostage
not intentional under Brower). Moreover, because
Lewis had not been convicted of or sentenced for
any crime, there was no Eighth Amendment violation.
See Pierce v. Multnomah County, 76 F.3d 1032, 1042
(9th Cir. 1996) (holding that Eighth Amendment's
prohibition on cruel and unusual punishments does
not apply until after conviction and sentence),
petition for cert. denied, 65 U.S.L.W. 3001 (U.S.
June 24, 1996) (No. 95-2062).
11
substantive due process analysis for those
instances in which a free citizen is
denied his or her constitutional right to
life through means other than a law
enforcement official's arrest,
investigatory stop or other seizure"),
cert. denied, 498 U.S. 851 (1990).
The Fourteenth Amendment provides, in
part, that no State shall "deprive any
person of life, liberty, or property,
without due process of law." U.S. Const.
amend. XIV,S 1. But not every government -
caused deprivation of a right is a
constitutional violation. See Cannon v.
Taylor, 782 F.2d 947, 949 (lith Cir. 1986)
("Although the right to life is an
interest of constitutional dimension, not
every deprivation of life amounts to a
constitutional violation and gives rise to
a claim under section 1983."). "(The Due
Process Clause ‘does not purport to
supplant traditional tort law in laying
down rules of conduct to regulate
liability for injures that attend living
together in society. .. .'" Collins v.
City of Harker Heights, 503 U.S. 115, 128
(1992) (quoting Daniels v. Williams, 474
U.S. 327, 332 (1986)). But when a law
enforcement officer arbitrarily acts to
12
deprive a person of life and personal
security in the course of pursuing his
official duties, constitutional due
process rights may be implicated. Daniels,
474 U.S. at 331 ("The touchstone of due
process is protection of the individual
against arbitrary action of government.").
{1} Section 1983 “contains no _ state-
of-mind requirement independent of that
necessary to state a violation of the
underlying constitutional right."
Daniels, 474 U.S. at 330. See Daniels, 474
U.S. at 330. The underlying constitutional
rights at issue here are substantive due
process rights to life and liberty or
personal security.
In Daniels, the Supreme Court held that
where an official's or government entity's
conduct constitutes mere negligence, no
substantive due process violation occurs.
Daniels, 474 U.S. at 328. Daniels
expressly left open the question whether
something less than intentional conduct
such as recklessness or gross negligence
would suffice "to trigger the protections
of the Due Process Clause." Id. at 334
n.3. But in City of Canton v. Harris, 489
U.S. 378 (1989), the Court held that non
13
intentional government conduct can violate
the Due Process Clause and thus lead to §
1983 liability. City of Canton held that a
municipality may be liable for a failure
to train its employees when such failure
demonstrates "deliberate indifference to
rights of persons with whom police come
into contact." Id. at 388.
Five circuits have addressed § 1983
liability in the context of high-speed
pursuits. These circuits have applied
various labels to the standard of conduct
that may lead to liability. See, e.g.,
Fagan v. City of Vineland, 22 F.3d 1296
(3rd Cir. 1994) (en banc) (overruling
previous reckless indifference standard
and adopting shocks the _ conscience
standard); Medina v. City and County of
Denver, 960 F.2d 1493, 1496 (10th Cir.
1992) (reckless disregard); Temkin v.
Frederick County Comm'rs, 945 F.2d 716,
723 (4th Cir. 1991) (shocks the
conscience), cert. denied, 502 U.S. 1095
(1992); Roach v. City of Fredricktown, 882
F.2d 294, 297 (8th Cir. 1989) (holding
gross negligence insufficient but not
stating what standard should be applied);
Jones v. Sherrill, 827 F.2d 1102, 1106
(6th Cir. 1987) (holding gross negligence
14
or outrageous conduct sufficient in some
circumstances) .‘
[2] While we have not_ specifically
addressed the standard of conduct to be
applied to law enforcement officers in the
context of high-speed vehicular pursuits,
we have addressed the standard of conduct
expected of officers in other types of
substantive due process cases.”
‘Jones, however, specifically relied on the
gross negligence standard set forth in Nishiyama v.
Dickson, Tenn., 614 F.2d 277, 282-83 (6th Cir.
1987) (en banc). The Sixth Circuit recently held
that. Nishiyama's gross negligence standard is no
longer good law. Foy v. City of Berea, 58 F.3d 227,
230 (6th Cir. 1995), and that the proper standard
to be applied to substantive due process violations
is deliberate indifference, id. at 232.
‘No federal circuit court has required
intentional government misconduct as a basis for a
§ 1983 due process violation. Likewise, no circuit
has found that negligent conduct can form the basis
of a § 1983 due process violation. But the labels
the courts have applied to official conduct
constituting a § 1983 due process violation range
across a spectrum that lies between ordinary
negligence and intentional misconduct. See, e.g.,
Souza v. Pina. 53 F.3d 423, 427 (ist Cir. 1995)
(conduct that shocks the conscience); Foy, 58 F.3d
at 232 (deliberate indifference), Swofford v.
Mandrell, 969 F.2d 547, 549 (7th Cir. 1992)
(deliberate indifference or reckless disregard) ;
Weller v. Department of Social Services for
Baltimore, 901 F.2d 387, 391 (4th Cir. 1990)
(conduct that shocks the conscience); Colburn v.
Upper Darby Township, 838 F.2d 663, 669 (3d Cir.
a
15
In one such due process case, we held that
either "gross negligence, recklessness, or
‘deliberate indifference'" was sufficient
to state a substantive due process
violation. Wood v. Ostrander, 851 F.2d
1212, 1214 (9th Cir. 1988) ("Wood I"),
reh'g granted and opinion modified by, 879
F.2d 583 (9th Cir. 1989) ("Wood II"),
cert. denied, 498 U.S. 938 (1990). Relying
on the standard set out in Wood I, we
later held that "grossly negligent or
reckless official conduct that infringes
upon an interest protected by the Due
Process Clause is actionable under § 1983."
Fargo v. City of San Juan Bautista, 857
F.2d 638 (9th Cir. 1988). But Fargo's
grossly negligent standard was explicitly
based on Wood I, which was modified on
rehearing and superseded by Wood II. In
Wood II, we stepped back from the grossly
negligent standard. We noted that an
1988) (deliberate indifference or reckless
indifference), cert. denied, 489 U.S. 1065 (1989);
Morales v. New York State Dept. of Corrections, 842
F.2d 27, 30 (2nd Cir. 1988) (deliberate
indifference); Harris v. Maynard, 843 F.2d 414, 416
(10th Cir. 1988) (wanton or obdurate disregard or
deliberate indifference); Stevens v . Corbell, 832
F.2d 864, 889 (Sth Cir. 1987) (conduct that shocks
the conscience); Taylor v. Ledbetter, 818 F.2d 791,
797 (lith Cir. 1987) (deliperate indifference),
cert. denied, 489 U.S. 1065 (1989).
16
intervening Supreme Court decision, City
of Canton, 489 U.S. 378, had called into
question this standard as set forth in
Wood I and Fargo. Wood II, 879 F.2d at
588.
In City of Canton the Supreme Court held
that deliberate indifference was the
minimum standard of culpability necessary
to maintain a § 1983 due process action
against a municipality for a policy or
custom of inadequate training of police
officers. City of Canton, 489 U.S. at 388.
The Court reasoned that a municipality's
inadequate training of its employees can
only, constitute a “policy or custom" when
such inadequate training “evidences a
‘deliberate indifference' to the rights of
its inhabitants." Id. at 389. But the
Court also specified that the deliberate
indifference standard “does not turn upon
the degree of fault (if any) that a
plaintiff must show to make out an
underlying claim of a constitutional
violation." Id. at 388 n.8. City of Canton
thus did not explicitly overrule our
decisions in either Wood I or Fargo
because they involved claims of
substantive due process violations against
17
individual police officers.
Following the Court's decision in City of
Canton, we granted rehearing and issued a
new opinion, Wood II, that disavowed the
gross negligence standard set out in our
opinion in Wood I. Wood II also had the
effect of modifying Fargo to the extent
that Fargo relied explicitly on Wood I in
setting a gross negligence standard--the
modification of Wood I eliminated the
legal foundation for Fargo.
In sum, it is clear from Wood II that Wood
I and Fargo are no longer good law to the
extent that they set a standard of gross
negligence for § 1983 violations. "Bare"
gross negligence is never sufficient to
sustain a § 1983 claim for a substantive
due process violation. See L.W. v. Grubbs,
92 F.3d 894, 897 (9th Cir. 1996). It is
also clear that deliberate indifference is
always sufficient. Fargo and Wood II are
helpful in defining the meaning of these
standards and in shedding light on the
murky area that lies between the two
standards.
18
In Fargo, a police officer accidentally
shot plaintiff Fargo in the back while
trying to handcuff him. Fargo sued under
§ 1983 for violations of his Fourteenth
Amendment due process rights and the
district court granted summary judgment in
favor of all defendants without explaining
its ruling. Fargo, 857 F.2d at 639. On
appeal, defendants argued that Fargo's
claims were barred by Daniels, 474 U.S.
327, because the officer's conduct, at
most, constituted mere negligence. We
rejected that argument, holding that
“grossly negligent or reckless official
conduct that infringes upon an interest
protected by the Due Process Clause is
actionable under § 1983." Id. at 640.
In Fargo, we defined gross negligence as
“'more than ordinary inadvertence or
inattention, but less perhaps’ than
conscious indifference to the
consequences.'" Fargo, 857 F.2d at 641
(quoting W. Page Keeton et al., Prosser
and Keeton on the Law Of Torts §34, at 212
(Sth ed. 1984)). We also noted that an
officer's state of mind is not an issue in
a claim based on gross negligence,
“although the contrary may be true where
19
the claim involves recklessness." Id. at
642. Although we declined to decide
whether an innocent state of mind would
negate recklessness or “whether
recklessness may be presumed conclusively
from conduct, " we did note that
recklessness and deliberate indifference
are equivalent in the sense that they both
generally refer to conduct involving "a
conscious disregard of public safety." Id.
at 642 n.7. We also said that, "where
state officials have notice of the
possibility of harm, ‘negligence can rise
to the level of deliberate indifference to
or reckless disregard for' the victim."
Id. (quoting Davidson v. Cannon, 474 U.S.
344, 357 (1986) (Blackmun, Bee
dissenting)). Because we concluded that a
triable issue of fact remained as to
whether the police officer's conduct might
have been grossly negligent, we found it
unnecessary to determine whether the
officer's conduct might have risen to the
more culpable standard of recklessness.
Id. at 643.
In Wood I, we redefined the standard for §
1983 substantive due process violations by
police officers. As explained above, we
20
recognized that the Supreme Court's
decision in City of Canton, 489 U.S. 378,
had called into question our decisions in
Wood I and Fargo that gross negligence was
sufficient. Wood II, 879 F.2d at 5868.
Analyzing the facts in Wood under City of
Canton's deliberate indifference standard,
we concluded that there remained a genuine
issue of material fact as to whether the
police officer in Wood had i. been
deliberately indifferent to the
plaintiff's interest in her personal
security. Id. at 588.
In Wood, a police officer arrested the
driver of the car in which plaintiff Wood
was a passenger and impounded the car. The
officer then drove away, leaving Wood
stranded at night, alone in a high crime
area. Wood accepted a ride with an unknown
man. This man took Wood to a secluded
area and raped her. Wood II, 879 F.2d at
586. Although we did not fix the level of
culpability required for a due process
violation, we did conclude that deliberate
indifference or callous disregard was
certainly sufficient. Id. at 588-89. We
also noted that there was a triable, if
not an undisputed, issue of fact as to
21
whether the police officer had knowledge
of the danger in which he placed Wood. We
observed that "the inherent danger facing
a woman left alone at night in an unsafe
area is a matter of common sense." Id. at
590.
Wood II makes clear that, in this circuit,
an officer can be held liable for a § 1983
claim if that officer's conduct is
deliberately indifferent to or in reckless
disregard of a person's right to life and
personal security.
[3] We recognize that courts should be
hesitant to second guess government
officials when they must make swift
decisions regarding, public safety. But
even swift decisions, if arbitrary, may
violate the Fourteenth Amendment. See
Daniels. 474 U.S. at 331. We believe that
the appropriate degree of fault to be
applied to high-speed police pursuits is
deliberate indifference to, or reckless
disregard for, a person's right to life
and personal security. Deliberate
indifference is the greatest degree of
misconduct we have previously required a
plaintiff to prove to sustain a § 1983
22
action against a law enforcement officer
for violating rights protected by the
Fourth Amendment's Due Process Clause. We
do not here decide whether deliberate
indifference or reckless disregard is the
minimum standard for all substantive due
process violations; we decide only that
this standard of conduct is the minimum
required to sustain a § 1983 claim in the
context of a high-speed police pursuit.
{4) Here, plaintiffs have alleged that
Officer Smith violated the Sacramento
County Sheriff's Department General Order
regarding pursuits ("General Order")* by
‘The Sacramento County Sheriff's Department
General Order regarding "Operation of Sheriffs
Department Vehicles" provides, in part, that:
1) It is the duty of the driver of an
authorized vehicle to exercise that amount of
care which, under all circumstances, would
not impose an unreasonable risk of harm upon
others.
2) The officer must consider the following:
Does the seriousness of the offense warrant
a chase at speed in excess of the posted
limit?
Does the need for, and possibility of
apprehension, justify a pursuit under the
existing conditions?
Does the pursuit present unreasonable
23
instituting and then continuing the
pursuit even when a reasonable officer
would have known that to do so was in
reckless disregard of Lewis's and
Willard's safety. A violation of police
procedures is relevant to determine
whether a substantive due process
violation has occurred. Fargo, 857 F.2d at
642. Police procedures are designed, in
part, to guide officers when they engage
in conduct that poses a serious risk of
harm to either a suspect or to the general
public. See Id.
(5) The General Order requires an officer
to communicate his intention to pursue a
hazards to life end property?
3) Unit initiating pursuit--responsibilities
Upon commencing a pursuit, the initiating
officer shall immediately broadcast the
following:
Officer's unit designation
Location and direction of travel
Vehicle description
Reason for pursuit
4) The initiating officer shall voluntarily
abort a pursuit when, in the officer's
opinion the hazards of continuing outweigh
the benefits of immediate apprehension.
24
vehicle to the sheriff's department
dispatch center. But defendants concede
that Smith did not contact the dispatch
center. The General Order requires an
officer to consider whether the
seriousness of the offense warrants a
chase at speeds in excess of the posted
limit. But here, the only apparent
"offense" was the boys' refusal to stop
when another officer told them to do so.
The General Order requires an officer to
consider whether the need for apprehension
justifies the pursuit under existing
conditions. Yet Smith apparently only
"needed" to apprehend the boys because
they refused to stop. The General Order
requires an officer to consider whether
the pursuit presents unreasonable hazards
to life and property: But taking the facts
here in the light most favorable to
plaintiffs, there existed an unreasonable
hazard to Lewis's and Willard's lives.
The General Order also directs an officer
to discontinue a pursuit when the hazards
of continuing outweigh the benefits of
immediate apprehension. But here, there
was no apparent danger involved in
permitting the boys to escape. There
certainly was risk of harm to others in
25
continuing the pursuit.
{6] Moreover, there is no evidence that
Officer Smith suspected Lewis or Willard
of violating any law when he decided to
institute the chase. The only alleged
violations were traffic infractions that
occurred during the pursuit itself. Smith
pursued the boys simply because they did
not stop when another officer told them to
do so. This is not a case in which
officers were pursuing dangerous felons.
The record does not indicate that Lewis or
Willard would have posed a risk to public
safety had they gotten away. Nor is there
any evidence indicating that the boys
would have been driving recklessly had
they not been pursued by Lewis. The
simplest means of negating any danger the
boys posed to the public would have been
for Smith to discontinue the pursuit.
[7] Indeed, the dangers created by the
chase were great. At least two cars and
one bicyclist were forced off the road
during the of the chase. The pursued
vehicle was a motorcycle, offering no
protection to its riders. Both boys were
26
minors. Neither was wearing a helmet. The
chase was at night, in a residential area,
and hit speeds of up to 100 miles per
hour. Smith could not have stopped his
car within the range of his headlights.
Finally, even though Officer Smith was
familiar with the area, he crested a hill
blindly at a speed of about 65 miles per
hour. At that speed, Smith's patrol car
skidded 147 feet before striking Lewis,
traveled another nineteen feet before
leaving the roadway, knocked over a
mailbox and came to rest 32 feet further
in a residential front yard. The enormity
of the danger to Lewis and Willard and to
the general public was readily apparent.
[8] When we construe the facts in the
light most favorable to plaintiffs, we
conclude that there remains a genuine
issue of material fact as to whether
Officer Smith acted with deliberate
indifference to or in reckless disregard
of Lewis' due process rights to life and
personal security.
The next issue we address is whether the
27
law was, clearly established such that a
reasonable officer, in the circumstances
of this case, would have known that his
conduct was unlawful.
The doctrine of qualified immunity shields
public officials from liability unless
their actions "violate clearly
established statutory or constitutional
rights of which a reasonable person would
have known."’ Mitchell v. Forsyth, 472
U.S. 511, 524 (1985). The “central purpose
of affording public officials qualified
immunity from suit is to protect them from
undue interference with their duties and
from potentially disabling threats of
liability." Elder v. Holloway, 5 10 U.S.
510, 114 S. Ct. 1019, 1022 (1994) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 806
(1982)).
"In determining whether a due process right
is clearly established, we do not look to
regulations, but only to the law as enunciated by
the courts. See Elder v. Holloway, 510 U.S. 510,
114 S.Ct. 1019, 1023 (1994). We therefore do not
consider the sheriff's department's General Order
regarding pursutis in determining whether a
reasonable officer in Smith's position would have
known that his conduct was unlawful.
28
Qualified immunity, of course, is not
absolute. Allowing suits against
government officials and government
entities fulfills an important purpose:
“deterring public officials' unlawful
actions and compensating victims of such
conduct." Elder at 1022-23.
{9} Whether a government official "is
entitled to qualified immunity turns on a
two part inquiry: ‘(1) Was the law
governing the official's conduct clearly
established? (2) Under that law, could a
reasonable officer have believed the
conduct was lawful?'" Mackinney v.
Nielsen, 69 F.3d 1002., 1005 (9th (Cir.
1995) (quoting Act Up! Portland v. Bagley,
988 F.2d 868, 871 (9th Cir. 1993). "This
does not mean that any official action is
protected by qualified immunity ‘unless
the very action in question has previously
been' held unlawful, ‘but it does require
that in the light of pre-existing law the
unlawfulness must be apparent.'" Mendoza
v. Block, 27 F.3d 1357 (9th Cir. 1994)
(quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)). We also note that there
is danger in defining the right in
question too narrowly. To do so would be
29
to allow defendants "to define away all
potential claims." Kelley v. Borg, 60 F.3d
664, 667 (9th Cir. 1995).
Here, the district court found that, in
May 1990, the law regarding substantive
due prowess rights in the context of
high-speed police chases was not clearly
established and that Officer Smith was
therefore entitled to qualified immunity.
The court reasoned that plaintiffs had
failed to provide any, state or federal
court opinion published before May 1990
that would "“support[ ] plaintiffs' view
that they have a Fourteenth Amendment
substantive due process right in the
context of high-speed police pursuits.”
The court also stated that it had no
obligation to independently research the
law because plaintiffs had the burden of
proving that the law was clearly
established.
{10) Our review of the issue of qualified
immunity must be “conducted in light of
all relevant precedent, not simply those
cited to or discovered by the district
court." Elder, 510 U.S. 510, 114 s&s. Ct.
1019 at 1021. Relevant precedent is not
30
limited to cases regarding the “very
action in question." Anderson, 483 U.S. at
640. Cases involving law enforcement
officers' excessive use of force in the
context of unconstitutional seizures were
sufficiently analogous to put Smith on
notice that, if he caused death or injury
to someone through sufficiently egregious
conduct, he could be liable under § 1983.
In Tennessee v. Garner, the Supreme Court
held unconstitutional "the use of deadly
force to prevent the escape of an
apparently unarmed suspected felon."
Tennessee v. Garner, 471 U.S. 1, 1 (1985).
The Court concluded that such deadly force
cannot be used unless "the officer has
probable cause to believe that the suspect
poses a significant threat of death or
serious physical injury to the officer or
others." Id. Gardner put Officer Smith on
notice that he could not constitutionally
stop Lewis with deadly force.
Although the deadly force used in Gardner
was a bullet from a gun, a car can also be
used as a deadly weapon. See Frye v. Town
of Akron, 759 F. Supp. 1320, 1325 (N.D.
Ind. 1991) ("(L)ike using firearms,
31
pursuing a vehicle at speeds in excess of
90 miles per hour over winding roads at
night constitutes the use of deadly force.
."). Moreover, the Supreme Court has
also held that law enforcement officers’
use of deadly force during a high-speed
vehicular pursuit may lead to § 1983
liability. Brower v. County of Inyo, 489
U.S. 593, 599-600 (1989) (use of roadblock
can constitute unconstitutional use of
deadly force when suspect involved in
high-speed pursuit crashes into that
roadblock). Brower put Officer Smith on
notice that force other than a gun could
constitute unlawful deadly force. Brower
also put Smith on notice that he could be
held liable for the use of deadly force to
stop a suspect in the context of a
high-speed pursuit.
"An officer is not entitled to qualified
immunity on the grounds that the law is
not clearly established every time a
novel method is used to inflict injury."
Mendoza, 27 F.3d at 1360. Common sense is
relevant to the inquiry as to whether the
contours of the right at issue were
clearly established. See Wood, 879 F.2d at
590.
32
{11] In addition to Garner and Bower,
three other federal cases put officer
Smith on notice that he could be found
liable for his conduct during a high-speed
pursuit. These § 1983 cases, involving
high-speed pursuits, were published before
May 1990: Roach v. City of Fredricktown,
882 F 2d 294 (8th Cir. 1989), Jones v.
Sherrill, 827 F..2d 1102 (6th Cir. 1987),
and Checki v. Webb, 785 F.2d 534 (Sth Cir.
1986). These cases sent a clear message
that conduct that is sufficiently
egregious may lead to §1983 liability.
In the first case, Roach, a police officer-¢
on patrol instituted a pursuit after
running a license plate check on a car
leaving the area of several recent
burglaries and discovering that the car
did not match the description of the car
to which the plates were registered.
During the covrse of the pursuit, the
driver of the suspect car lost contro! and
collided with a second car. The police
officer "collided with the debris" from
the accident. Roach, 882 F.2d at 295.
Roach (the passenger in the suspect car)
and the occupants of the second car sued
the police officer for their injuries.
33
Before Roach was decided, the Eighth
Circuit had held negligent or grossly
negligent conduct insufficient to state a
claim under § 1983. In Roach, the court
held the officer not liable, concluding
that his conduct did not "rise to the
level of gross negligence and, therefore,
most certainly [did] not rise to the level
of conduct which would sustain a claim
under section 1983." Id. at 297. The
court therefore affirmed the district
court's dismissal for failure to state a
Claim. Id. at 298.
In Jones, the complaint alleged that
police officers instituted a high-speed
pursuit after spotting a car reported in a
police bulletin to have been involved in a
property damage accident. The officers
also observed the car "being driven in an
unsafe manner." Jones, 827 F.2d at 1103.
During the pursuit, the suspect car
crossed the center line of the highway ,
striking an oncoming car and killing its
driver, Jones. Jones' wife sued the
officers for her husband's death. Id. at
1104. The Sixth Circuit held the officers
‘not liable, concluding’ that "(t)he
government conduct in pursuing ([the
34
suspect] does not rise to the level of
gross negligence and outrageous conduct
necessary to sustain a section 1983
claim." Id. at 1106. The court therefore
affirmed the district court's dismissal
for failure to state a claim for violation
of any of plaintiffs constitutional
rights. Id. at 1103.
In these two cases the police officers
were found not liable for the deaths or
serious injuries that resulted from the
pursuits because their conduct was not
sufficiently egregious. These two cases
clearly indicate that an officer cannot
pursue people with impunity, sufficiently
egregious conduct can lead to liability.
In the third case. Checki, the Fifth
Circuit concluded that intentional misuse
of a police vehicle could constitute a §
1983 violation. Checki, 785 F.2d at 538.
The plaintiff, Checki, was a passenger in
a car tailgated by an unmarked state
police car. The driver of Checki's car
attempted to evade the tailgating car, not
knowing that it was a police car. The
driver's evasive maneuvers led to a
twenty-mile high-speed chase during which
35
Checki and the driver were unaware that
the pursuers were police. Checki fiied a
§ 1983 action. The district court dismissed
the suit on procedural grounds related to
venue and statute of limitations. Id. at
535-36. The Fifth Circuit reversed and
also commented on the merits of the
case. The court stated that, although "a
police officer's negligent use of his
vehicle" will not constitute a § 1983
violation, ... [i]t is a different story
when a citizen suffers or is seriously
threatened with physical injury due to a
police officer's intentional misuse of his
vehicle." Id. at 538.
Each of these three cases, Roach, Jones,
and Checki, sent a clear message that a
police officer can be held liable if his
conduct is sufficiently egregious, i.e.,
conduct somewhere beyond gross negligence.
These cases put Smith on constructive, if
not actual notice, that he could be sued
for violating Lewis's Fourteenth Amendment
due process rights during a police chase.
Thus, the law regarding police liability
for death or injury caused by an officer
during the course of a high-speed chase
was clearly established. If that
36
officer's conduct was sufficiently
egregious, he would be liable.
The next issue is whether, in the
circumstances of this case, a reasonable
officer in Smith's position could have
believed his conduct was lawful. Both
Fargo and Wood demonstrate that police
conduct, if sufficiently egregious, is
unlawful if that conduct violates
someone's right to personal security. A
reasonable officer in Smith's
circumstances would have been aware that
if his conduct was sufficiently egregious,
resulting in either injury or death to
Lewis or Willard, he could be held liable.
[12] Defendants allege that the law
regarding police pursuits was not so
clearly established that a reasonable
officer would have known that the mere
decision to pursue a fleeing suspect could
potentially violate that suspect's due
process rights. But defendants'
allegations misconstrue the focus of the
inquiry. It was not Smith's "mere decision
to pursue a fleeing suspect" that we
analyze. What we must look at is both
Smith's decision to institute the pursuit
r 37
and the manner in which he conducted it.
Smith must have known that he was placing
Lewis and Willard in great physical
danger. Any reasonable officer would have
known of this danger. No reasonable
officer could have believed such conduct
was completely immune from liability.
[13] The remaining issue is whether
Smith's conduct actually violated Lewis's
rights--whether Smith, by instituting and
conducting the high-speed pursuit in the
manner in which he was sufficiently
reckless of Lewis's safety that he can be
held liable for Lewis's death. This is an
issue that must be addressed by a finder
of fact. Smith's actions, as alleged by
plaintiffs, could be deemed to be in
reckless disregard of Lewis's life and
personal security. There exists a genuine
issue of material fact. We thus reverse
the district court's grant of summary
judgment in favor of Lewis on qualified
immunity grounds.
Cc.
Plaintiffs next argue that they should be
allowed to state a claim against Officer
38
Smith based on the policy underlying § 1983
even if we find he merits qualified
immunity. Plaintiffs reason that, because
the district court dismissed the state law
claims against Smith on the ground that
Smith was immune from suit under
California law,* S 1983 should provide a
federal cause of action. Plaintiffs
allege that the policy underlying § 1983
would be violated should they have no
remedy. Plaintiffs cite no relevant
authority to support this novel
proposition.
Because we conclude that Officer Smith is
not entitled to qualified immunity, we
need not address this argument.
‘California Vehicle Code § 17004 provides, in
part, that:
A public employee is not liable for
civil damages on account of personal
injury to or death of any person or
damage to property resulting from the
operation, in the line of duty, of an
authorized emergency vehicle while
responding to an emergency call or when
in the immediate pursuit of an actual
or suspected violator of the law...
Cal. Veh. Code § 17004 (West 1971). The district
court concluded that this statute provided Smith
with immunity under state law.
39
Plaintiffs next allege that the district
court erred by granting summary judgment
in favor of Officer Smith in his official
capacity. Defendants correctly point out
that an official capacity suit is actually
a suit against the government entity--
here, Sacramento County and the Sacramento
County Sheriff's Department. As such, this
suit is properly brought against the
entity itself as a Monell claim. See
Monell v. Department of Social Services of
New York, 436 U.S. 658, 690 n.55 (1978)
(explaining that "“official-capacity suits
generally represent only another way of
pleading an action against an entity of
which an officer is an agent" and holding
that these entities may be sued directly) ;
Kentucky v. Graham, 473 U.S. 159, 165 &
167 n. 14 (1985) (holding that "([t])here is
no longer a need to bring official
capacity actions against local government
officials [because] under Monell,
local government units can be sued
directly"). Therefore, plaintiffs' suit
against Officer Smith in his official
40
capacity is subsumed in their Monell claim
against the county and the _ sheriff's
department, as discussed below.
Plaintiffs also argue that the district
court erred in granting summary judgment
in favor of Sacramento County, and the
Sacramento County Sheriff's Department.
Plaintiffs claim that both entities
evidenced deliberate indifference to
Lewis's constitutional rights because they
failed to adequately train Officer Smith
in high-speed pursuits and because the
sheriff's department ignored its own
pursuit policy. We conclude that the
district court was correct in granting
summary judgment in favor of the county
and the sheriffs department on this issue.
[14] A municipality may be liable for
actions resulting in violations of
constitutional rights only when the
conduct of its official or agent is
executed pursuant to a government policy
or custom. Monell, 436 U.S. 658. To
establish municipal liability under § 1983,
a plaintiff must show that (1) he was
41
deprived of a constitutional right; (2)
the municipality has a policy; (3) the
policy amounts to deliberate indifference
to plaintiff's constitutional rights; and
(4) the policy is the moving force behind
the constitutional violation. Oviatt v.
Pearce, 954 F.2d 1470, 1474 (9th Cir.
1992); see also City of Canton, 489 U.S.
at 388. The Supreme Court has emphasized
that the unconstitutional acts of a
government agent cannot, standing alone,
lead to municipal liability; there is no
respondeat superior liability under § 1983.
Monell, 436 U.S. at 692-95. A municipality
may only be liable where its policies are
the "'moving force [behind] the
constitutional violation.'" City of
Canton, at 389 (quoting Monell at 694).
Here, plaintiffs allege that the sheriff's
department's and county's inadequate
training of Smith caused the violation of
Lewis's constitutional rights. Smith had
no official training in high-speed
pursuits. He had, however, received the
sheriff's department's standard training
in high-speed driving in 1976 and 1979.
The district court found, as a factual
42
matter, that many of the driving skills
overlap for high-speed driving and
high-speed pursuits. Plaintiffs do not
contest this factual finding but argue
that Smith should have received additional
training.
The district court concluded that the
training procedures implemented by the
county and the sheriff's department "are
not so inherently inadequate as to subject
the municipality to liability for a
failure to train." What the district
court meant wae that plaintiffs had failed
to raise a genuine issue of material fact
as to whether the sheriff's department's
procedures were deliberately indifferent.
We agree.
{15] Plaintiffs presented no evidence that
anyone other than Lewis had suffered a
constitutional violation caused by a
Sacramento County Sheriff's Department
high-speed pursuit. Moreover, "[t]hat a
particular officer may be unsatisfactorily
trained will not alone suffice to fasten
liability on the city." City of Canton,
489 U.S. at 390. Inadequate training
cases generally involve a "program-wide
43
inadequacy in training" rather than the
training provided to a single government
official. Alexander v. City and County of
San Francisco, 29 F.3d 1355 (9th Cir.
1994), cert. denied, 115 S. Ct. 735
(1995). Here, as in Alexander, plaintiffs
failed to produce any evidence
demonstrating "that the alleged inadequacy
of { ] training was “he result of a
‘deliberate’ or ‘conscious’ choice,
which, under City of Canton, is necessary
to establish a municipal policy." Id.
Absent such evidence, plaintiffs failed to
raise a material issue regarding whether
the municipal defendants were deliberately
indifferent. Rather, plaintiffs have
raised only an issue of negligence, which
is not a sufficiently culpable standard of
conduct to impose municipal liability. See
id. at 1367-68.
We also note that the facts, as alleged by
plaintiffs, indicate that Officer Smith
violated the sheriff's department's
pursuit policy. This violation further
undermines any finding that the county or
the sheriff's department, as opposed to
Smith could be found to have been
deliberately indifferent to or in reckless
44
disregard of Lewis's safety.
Plaintiffs also argue that the municipal
defendants have an unwritten policy of
violating their own pursuit guidelines.
But the only evidence they have presented
regarding this “policy” is that Officer
Smith was not disciplined by the sheriff's
department for his pursuit of Lewis. This
fact, standing alone, is insufficient to
preclude summary judgment on the issue of
whether the municipal entities had a
pursuit policy which was deliberately
indifferent to the constitutional rights
of Lewis or any other person.
IIl.
Plaintiffs have raised a genuine issue of
material fact regarding whether Officer
Smith acted with deliberate indifference
to or in reckless disregard of Lewis's
right to life and personal security.
Officer Smith is not entitled to qualified
immunity. We reverse and remand for trial
on this issue; but we affirm the district
court's grant of summary judgment in favor
of Sacramento County and the Sacramento
45
County Sheriff's Department. AFFIRMED in
part; REVERSED in part; and REMANDED.
Each side to bear its own costs on appeal.
the end
46
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
TERI LEWIS and THOMAS )
LEWIS ) CIV-91-505 GEB-GGH
Personal Representative)
of the ) ORDER
Estate of PHILIP LEWIS, )
)
Plaintiffs, F | L E D
)
)
Vv. ) APRIL |2 1993
) CLERK, U.S. DISTRICT COURT
COUNTY OF SACRAMENTO, ) EASTERN DISTRICT oF
SACRAMENTO COUNTY ) carom
SHERIFF'S DEPARTMENT ;
)
)
)
and JAMES EVERETT SMITH
Defendants.
This matter is before the court on
defendants' motion for partial or total
summary judgment on plaintiff's claims under
42 U.S.C. § 1983, and California state law.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 22, 1990, at approximately 8:30
p.m., Sacramento Sheriff's Deputy James E.
Smith and Officer Stapp had responded to a
call to investigate an alleged fight when they
heard a motorcycle engine revving, and then
saw the motorcycle speed past them. Decedent
Philip Lewis was a passenger on the motorcycle
and his friend Brian Willard was the driver.
Neither rider wore a helmet. Officer Stapp
47
yelled to the motorcyclists to pull over. The
passenger Lewis stated "fuck it, let's get out
of here," at which point the motorcycle
accelerated past the police officers. Officer
Smith and Officer Stapp pursued the motorcycle
in separate squad cars in a chase lasting
approximately one minute and fifteen seconds
and reaching top speeds of approximately 80 to
100 miles an hour.’ The chase traveled 1.25
miles, through four stop signs and three left
hand turns. Neither officer saw _ the
motorcycle's brake light come on during the
pursuit.” Officer Smith attempted to notify
dispatch of the pursuit as required by the
Sheriff's Department pursuit policy, but his
radio was on the wrong channel. Officer Smith
followed the motorcycle at a distance of
between 100 and 200 feet.” As the vehicles
"Plaintiffs say the vehicles reached 80 to
100 miles an hour, while defendants say the pursuit
never exceeded 80 miles an hour.
“The parties' experts dispute whether the
motorcycle's brake light was working. Defendants’
expert stated that the brake light was rigged to
stay on whenever the engine was on, and plaintiffs’
expert stated that the brake light could not
possibly be installed to be on all the time.
“Defendants claim that Officer Smith
maintained a 200-foot distance behind the
motorcycle, while one witness reported that the
48
went over a crest in the road, Officer Smith
saw the motorcycle making a left turn and
stopping. He saw smoke coming from the rear
tire and passenger Lewis jumping backward or
being thrown backward. Officer Smith then
braked heavily, skidding 166 feet but he was
unable to stop before his squad car struck
Philip Lewis. Lewis was pronounced dead at
the scene.
Decedent Lewis' representatives filed the
instant suit under 42 U.S.C. § 1983 and
California state law on March 11, 1991.
Plaintiffs' first cause of action alleges that
Officer Smith's reckless conduct deprived
decedent of his Fourteenth Amendment
substantive due process rights.” The second
cause of action is a Monell]-type claim against
the county defendants alleging inadequate
officer training and a policy amounting to
patrol car was 100 feet behind the motorcycle.
“As a precautionary measure, defendants also
move for summary judgment on any Fourth Amendment
claim plaintiffs may have alleged. In support ox
their motion, defendants argue that plaintiffs
cannot show decedent was "seized." See Brower y.
County of Inyo, 489 U.S. 593 (1989). However,
because the court finds no mention of a Fourth
Amendment violation in plaintiffs' complaint and
because the complaint failed to notify defendants
of any Fourth Amendment unlawful s@izure claim, the
court does not address the Fourth Amendment issue.
49
deliberate indifference to decedent's
constitutional rights. Plaintiffs' third
cause of action alleges that Officer Smith
negligently operated his police car.
Defendants now move for partial or total
summary judgment on the grounds addressed
below.
TI. ANALYSIS
A. Standard of Review
Summary judgment is appropriate when
there is no genuine issue of material fact,
and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. S56(c);
Adickes v. S.H, Kress & Co., 398 U.S. 144, 157
(1970). It is the moving party's burden to
inform the district court of the bases for its
motion and to identify those facts that it
believes demonstrate the absence of any
genuine issue of material fact. Celotex Corp.
Vv. Catrett, 477 U.S. 317, 323 (1986). If the
moving party meets its initial responsibility,
then the burden shifts to the opposing party
to establish that there is a genuine issue of
material fact in dispute. Matsushita Elec.
Indus. Co, vy, Zenith Radio Corp., 475 U.S.
574, 585-87 (1986). To establish a factual
dispute, the opposing party must tender
50
evidence of specific facts showing a dispute
exists and the court should believe those
facts, drawing all reasonable inferences in
favor of the opposing party. Matsushita Elec.
Indus. Co., 475 U.S. at 586-87; Anderson yv.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
B. Good Faith Qualified Immunity
Defendant Officer Smith contends he
should be accorded good faith qualified
immunity from plaintiffs' Fourteenth Amendment
claim. Peace officers are entitled to
qualified immunity from constitutional claims
under 42 U.S.C. § 1983, if their conduct did
not violate clearly established statutory or
constitutional rights of which a reasonable
person would have know. Hunter v. Bryant, 112
S.Ct. 534 (1991). The test for determining
whether good faith qualified immunity applies
in a given case involves three inquiries:
(1) the identification of the
constitutional right allegedly
violated;
(2) the determination of whether
the right was so clearly
established as to alert a
reasonable officer to its
constitutional parameters; and
(3) the ultimate determination of
whether a reasonable officer could
have believed that his particular
conduct was lawful.
51
Romero v. Kitsap, 931 F.2d 624, 627 (9th Cir.
1991). "“(Rlegardless of whether’ the
constitutional violation occurred, the officer
should prevail if the right asserted by the
plaintiff was not ‘clearly established' or the
officer could have reasonably believed that
his particular conduct was lawful." Romero y.
Kitsap, 931 F.2d at 627. The plaintiff bears
the burden of proving that at the time of the
alleged misconduct, the right allegedly
violated was "clearly established." Romero vy.
Kitsap, 931 F.2d at 627. If plaintiff meets
this burden, the officer must show that his or
her conduct was reasonable despite the fact it
may have violated constitutional rights.
Romero vy. Kitsap, 931 F.2d at 627.
Defendant Officer Smith asserts that he
is entitled to good faith qualified immunity
because (1) plaintiffs have not proven that he
violated any of decedent's constitutional
rights; (2) even if plaintiffs could identify
a constitutional right that was violated, that
right was not "clearly established" at the
time of the alleged violation; and (3) a
reasonable officer would have believed Officer
Smith's conduct was lawful. Plaintiff's
alleged that Officer Smith violated decedent's
Fourteenth Amendment right to not be deprived
of life without substantive due process of
52
law. Assuming, without deciding, this
violation occurred, the inquiry turns to
whether plaintiff's constitutional right was
“clearly established" at the time of the
alleged misconduct.
To determine whether a right was "clearly
establishec" at the time of the alleged
violation, the court looks to binding
precedent as well as to "all available
decisional law including decisions of state
courts, other circuits, and district courts .
" Ward v. County of San Diego, 791 F.2d
1329, 1333 (9th Cir. 1986). Plaintiffs
present, and this court finds, no state or
federal opinion published before May, 1990,
when the alleged misconduct took place, that
supports plaintiffs' view that they have a
Fourteenth Amendment substantive due process
right in the context of high speed police
pursuits. Moreover, the court has _ no
obligation to independently research the
relevant law of qualified immunity when the
plaintiff has the burden of proof. Elder v.
Holloway, 975 F.2d 1388, 1398 (9th Cir. 1991).
Since 1990, only one district court has
visited the issue of a Fourteenth Amendment
violation in the context of a high speed
police chase. See Frye v. Town of Akron, 759
F. Supp. 1320 (N.D.Ind. 1991). With facts
53
strikingly similar to the facts in this case,
the Frye court denied defendants' motion to
dismiss, holding that plaintiffs may be able
to establish a Fourteenth Amendment violation.
Frye v. Town of Akron, 759 F.2d at 1325.
However, not only was the case decided after
the alleged misconduct here, but given the
procedural posture of the case, it fails to
“clearly establish" any specific Fourteenth
Amendment right in the context of police
pursuits. See Monell _yv. Dept. of Social
Servs., 436 U.S. 658 (1978). A municipality
may be liable for actions resulting in
deprivation of constitutional rights only when
the injurious conduct of its official or agent
Plaintiffs can not show that decedent's
Fourteenth Amendment rights were "clearly
established," therefore, Officer Smith is
entitled to summary judgment on the basis of
qualified immunity on plaintiffs' Fourteenth
Amendment claim.
C. Municipality Liability for Failure to
Train Officers
Defendants County of Sacramento and
Sacramento County Sheriff's Department contend
they are immune from plaintiffs' Monel] claim
because Officer Smith did not act pursuant to
a government policy or custom and his conduct
did not evidence implicit governmental
54
authorization of, approval of, or acquiescence
in, unconstitutional activity. is executed
pursuant to a "government's policy or custom."
Monell, 436 U.S. at 694. To establish
municipal liability under § 1983, a plaintiff
must show that: (1) he was deprived of a
constitutional right; (2) the municipality has
a policy; (3) the policy “amounts” to
deliberate indifference" to plaintiff's
constitutional rights; and (4) the policy is
the moving force behind the constitutional
violation. Qvyiatt v. Pearce, 954 F.2d 1470,
1474 (9th Cir. 1991); gee also City of Canton
v. Harris, 389 U.S. 378 (1986). Inadequate
police officer training may give rise to
municipal liability if the failure to train
reflects a "'deliberate' or ‘conscious' choice
by a municipality -- a 'policy'. ..." City
ef Canton, 389 U.S. at 389. "(T)he need to
train officers in the constitutional
limitations on the use of deadly force can be
said to be 'so obvious,' that failure to do so
could properly be characterized as ‘deliberate
indifference' to constitutional rights." City
ef Canton, 389 U.S. at 390, n. 10 (citation
omitted). In determining inadequate training
“the issue is not whether the officers had
received any training . . . rather the issue
is the adequacy of the training." Davis vy.
55
Mason County, 927 F.2d 1473, 1483 (9th Cir.
1991).
Plaintiffs assert that County defendants
failed to adequately train Officer Smith.
Like the officers in Davis, Officer Smith had
no training in pursuits. However Davis can be
distinguished, in that the officers in Davis
received "minimal or no training," Davis, 927
F.2d at 1483, whereas the officer in this
case, received the Sheriff's Department's
standard training in high speed driving in
1979 and 1976. While training in high speed
driving is not identical to specific pursuit
training, this court recognizes that many of
the driving skills overlap. Furthermore,
defendants argue that since officer Smith has
been employed by the Sacramento County
Sheriff's Department for 20 years, he had on-
the-job training as _ well. The training
procedures implemented by the County of
Sacramento and Sacramento County Sheriff's
Department exceed state requirements and are
not so inherently inadequate as to subject the
municipality to liability for a failure to
train.
Plaintiffs also seem to contend that the
Sacramento County Sheriff's Department's
pursuit policy is deliberately indifferent to
decedent's constitutional rights. However,
56
the Sheriff's Department's pursuit policy
complies with, and exceeds, California
statutory standards. That policy carefully
delineates when it is permissible to initiate
a pursuit, and when an officer should call off
a pursuit because of the threat of harm to the
suspect, the officer, and the public at large.
Moreover, the policy does not violace any
constitutional rights previously established
by precedent. Therefore, the County's motion
for summary judgment on plaintiffs' § 1983
claim is granted.
Because Officer Smith is entitled to good
faith qualified immunity and the County
adequately trained Officer Smith and does not
have a policy that evidences deliberate
indifference to constitutional rights, the
court need not address the separate ground for
summary judgment that Officer Smith's pursuit
and actions did not violate Lewis' Fourteenth
Amendment substantive due process rights.
D. Immunity from State Law Negligence Claims
Defendants assert that various state
immunity statutes apply to shield them from
liability for state law negligence claims.
Defendant Officer Smith asserts that he is
immune from liability for plaintiffs'
negligence claim pursuant to Cal. Veh. Code §
17004 because he was in immediate pursuit of
57
law violators while on duty in his patrol car.
Cal. Veh. Code § 17004 provides:
A public employee is not liable for
civil damages on account of
personal injury to or death of any
person or damage to property
resulting from the operation, in
the line of duty, of an authorized
emergency vehicle while responding
to an emergency call or when in the
immediate pursuit of an actual or
suspected violator of the law.
The undisputed facts how that (1) Officer
Smith was a public employee in the line of
duty when he pursued Willard and Lewis; and
(2) Willard violated the law by committing two
infractions beyond the failure to yield.
Therefore, Officer Smith is immune from
plaintiffs' negligence claim.
Notwithstanding Officer Smith's tort
immunity, any negligence on his part is
relevant to the liability of the County
defendants. City of Sacramento vy. Superior
Court, 182 Cal.App.3d 395 (1982) (though
section 17004 immunized negligent officers,
the city was still held liable). Defendants
County of Sacramento and Sacramento County
Sheriff's Department contend that they are
entitled to immunity from plaintiffs’
negligence action under Cal. Gov't Code §
845.8(b) and Cal. Veh. Code § 17004.7. In
58
light of the court's disposition of all
federal claims, as discussed in the following
section, the court does not decide whether the
County defendants are immune from negligence
liability, as the state courts are in a better
position to interpret the intertwined immunity
statutes than a federal court. Therefore, the
County defendant's motion for summary judgment
on plaintiffs state law negligence claims is
denied.
E. Dismissal of Remaining State Law Claims
The Constitution empowers federal courts
to hear supplemental state claims if the
“state and federal claims .. . derive from a
common nucleus of operative fact." United
Mine Workers v. Gibbs, 383 U.S. 715, 725
(1966). However, "if the federal claims are
dismissed before trial, even though not
insubstantial in a jurisditional sense, the
[supplemental] state claims should _. be
dismissed as well." United Mine Workers, 383
U.S. at 726. The exercise of supplemental
jurisdiction is within the discretion of the
trial court. United Mine Workers, 383 U.S. at
726. The Ninth Circuit has held that it is
proper to dismiss the supplementa state claims
when all federal claims are dismissed before
trial. Johnson vy. Director, OWCP, 911 F.2d
242, 247 (9th Cir. 1990); Jones v. Community
Redevelopment Agency, 733 F.2d 646, 651 (9th
Cir. 1984). As plaintiffs' ‘ederal causes of
action do not survive summary judgment, the
court exercises its discretion and dismisses
plaintiffs' remaining state claim against
County of Sacramento and Sacramento County
Sheriff's Department.
III. CONCLUSION
Defendants' motion for summary judgment
is hereby:
(1) GRAN 2D, as to plaintiffs' federal
and state causes of action against defendant
Officer Smith;
(2) GRANTED, -as to plaintiffs' §1983
claim against County of Sacramento and
Sacramento County Sheriff's Department ;
(3) DENIED, as to plaintiffs' state
negligence claim against County of Sacramento
and Sacramento County Sheriff's Department.
Finally, since the only claim which
survives summary judgment is a pendent state
law claim, the court exercises its discretion
to dismiss this claim without prejudice.
Plaintiffs may file their negligence claim in
state court.
60
IT IS SO ORDERED.
Dated: April 10, 1993
GARLAND E. BURRELL, JR.
UNITED STATES DISTRICT JUDGE
61
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERI LEWIS and THOMAS ) No. 93-15924
LEWIS, )
Personal Representatives) D.C. No. CV- 91-
of the Estate of Philip ) 00505-GEB
Lewis,
Plaintiffs- Appellants, ORDER
Vv.
FILED
Nov 2! 1996
CATHY a. CATTERSON, CLERK
U.S. COURT OF APPEALS
SACRAMENTO COUNTY ;
SACRAMENTO COUNTY
SHERIFF'S DEPARTMENT ;
JAMES E. SMITH,
Defendants-Appellees.
Before: SCHROEDER, PREGERSON, and WIGGINS,
Circuit Judges
The panel as constituted in the above
case has voted to deny the petition for
rehearing and to reject the suggestion for
rehearing en banc. '
The full court has been advised of the
suggestion for rehearing en banc and no active
judge of the court has requested a vote on it.
Fed. R. App. P. 35.
The petition for rehearing is denied and
the suggestion for rehearing en banc is
rejected.
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