Appendix — Countyof Sacramento v. Lewis

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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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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