# Opposition Brief — Wince v. Stemler

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 813

## Text

-

JUL 2 3 2004 |

ffi CLERK |

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No. 03-1574 aoe
In The
Supreme Court of the United States

#

BOBBY JOE WINCE, in his individual capacity;
JOHN DOLAN, in his individual capacity; and
THOMAS DUSING, in his individual capacity,

Petitioners,
V.

SUSAN STEMLER, WILLIAM CHIPMAN,
Administrator of the Estate of CONNI BLACK, and
RANDY BLACK, Legal Guardian of Shianne Black,

Respondents.

a

On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit

¢

BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

¢

| RICHARD G. MEYER

MARK D. GUILFOYLE
Counsel of Record
SUSANNE R. WHERLEY

DETERS, BENZINGER & LAVELLE

| 207 Thomas More Parkway
Crestview Hills, KY 41017
(859) 341-1881

: ERIc C. DETERS

300 Buttermilk Pike, Suite 322
Ft. Mitchell, KY 41017
(859) 426-5300

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

gate, an me ait Naso: sapie deme ae ts peta SE Bek ade TD ae

QUESTIONS PRESENTED FOR REVIEW

1. The Application of the Rooker-Feldman Doctrine

In order to determine the applicability of the Rooker-
Feldman doctrine to the substantive due process claim of
Plaintiff-Respondent Chipman, the Court must a:‘ferenti-
ate between the two factual scenarios which informe’ the
respective federal and state court decisions at issue. ‘ine
first scenario occurred when the Petitioner police officers
forced the decedent, Conni Black, into the vehicle of an
obviously drunk driver, known by the police to have just
previously assaulted and terrorized Black and her com-
panion, Susan Stemler. This is the “police stop” scenario
which led the Sixth Circuit to acknowledge the validity of
Respondent’s substantive due process claim. The second
scenario occurred some short time thereafter when the
vehicle into which Black had been forced by threat of
arrest collided with a guardrail along the interstate
highway. Because Black sustained fatal injuries in this
collision, it gave rise to Respondent’s state law wrongful
death claim.

The Kentucky Supreme Court affirmed the summary
judgment dismissal of this claim on the sole basis that
decedent was not in police custody at the time of the fatal
accident. The question, then, is whether the Sixth Circuit
properly declined to apply the Rooker-Feldman doctrine by
finding that the state wrongful death claim (with its
necessary focus on the immediate cause of the collision) is
not “inextricably intertwined” with the Respondent’s
substantive due process claim (with its necessary focus on
the issue of police custody during the investigative traffic
stop).

ere reeenr ee

il

QUESTIONS PRESENTED
FOR REVIEW - Continued

2. The Application of Claim Preclusion

Plaintiff-Respondent Chipman filed parallel simulta-
neous suits in state and federal court asserting, in the
respective courts, a wrongful death claim and a substan-
tive due process claim under 42 U.S.C. § 1983. Plaintiff-
Respondent Stemler filed her two surviving claims, exces-
sive force and fabrication of evidence, in federal court only.
The issue for Chipman’s and Stemler’s federal claims is
whether Kentucky’s transactional rule for claim-splitting
is applicable or not and, if it is not applicable, whether the
Sixth Circuit correctly concluded that the appropriate
inquiry under the Kentucky law of claim preclusion is the
identity or lack of identity of the state and federal causes
of action.

¢

Application of both doctrines, Rooker-Feldman and
Claim Preclusion, involves a fairly detailed examination of
the underlying facts, as well as the complex procedural
history of this litigation. Though essential to a proper
application of these doctrines, no such examination ap-
pears in the Petition. Such a review follows.

iil

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW .............. i
Ce CE Se FEB vncesessessrereserececsvetereresenvivonverss iii
ee Ce BA CEE vcs eccivicvccsevncesesccevevensccseees Vv
OPPOSITION TO PETITON FOR WRIT OF CER-
al dd a cinanadee sipenndicevensdiknenenvnnitenesis 1
TA eM PE THREE CAGE ce cnseecsccesevescsssesssvesscssees 1
A. STATEMENT OF MATERIAL FACTS ..... 1
Be I I ons viwndversaxcescerninesaerente 2
ee PING incascssiissvesesceccsssvesess 3
3. Stemler’s Prosecution .................::0000 4
B. PROCEEDINGS BELOW......................08 5
1. State Court Proceedings ..................... 5
a. Chipman’s Claim,.....................00 5
a gg eee 6
2. Federal Court Procedings .............000+: 7
Si. CATH CIMIIIS 006s ccs ccsesccrsevceene 7
BD. Steers CIMUING.....00.c0ccscessccccecsccess 8
RESPONDENTS’ ARGUMENT IN OPPOSITION
TO PETITION FOR WRIT OF CERTIORAR ....... 10

I. SINCE THE SIXTH CIRCUITS OPINION
DID NOT IN EFFECT OVERRULE THE
STATE COURT’S OPINION, THE ROOKER-
FELDMAN DOCTRINE IS INAPPLICABLE
EE EE sisiccieicnnvesasercsvnininesatwdsdenaxsevareese 10

II.

Ill.

IV.

lv

TABLE OF CONTENTS - Continued

Page

SINCE NEITHER A BROAD NOR A NARROW
INTERPRETATION OF THE ROOKER-
FELDMAN DOCTRINE IS APPLICABLE TO
THIS CASE, IT IS UNSUITABLE FOR
CLARIFYING THAT DOCTRINE ................

PRIOR CASE LAW FROM THIS COURT
PLAINLY PERMITTED RESPONDENTS TO
FILE SIMULTANEOUS PARALLEL CLAIMS
IN STATE AND FEDERAL COURT................

THE SIXTH CIRCUIT CORRECTLY AP-
PLIED KENTUCKY LAW IN REJECTING
PETITIONERS’ CLAIM PRECLUSION AR-

A. The Transactional Rule is Inapplicable
As Respondents Have Not Split Their
Causes Of Action.............ccccscccseescesseseerese

B. The Transactional Rule Does Not Bar
Respondents’ ClaimsS.............::::00+00 ee

C. Respondents’ Federal And State Causes
Of Action Are Not “The Same” For Pur-
poses Of Claim Preclusion .............+++::15++

CONCLUSION ........ccccccovsccsccrseveecescccsossecesscsvenesssesecees
APPENDIX
Stemler v. City of Florence, 126 F.3d 856 (CA6 1997)......App. 1

13

16

18

19

24

Vv
TABLE OF AUTHORITIES
Page

CASES
Arnold v. K-Mart Corporation, 747 S.W.2d 130 (Ky.

ADD. 1968)..00.:scrsersseseccessecersssesssscossceslibvesseesanasenesonsrsnneees 22
Atlantic C.L.R. Co. v. Brotherhood of Locomotive

Engineers, 398 U.S. 281 (1970) ........:eeeseeeeeeseeeeees 16, 17
Centifanti v. Nix, 865 F.2d 1422 (CA3 1989) ............:.0 14
Chipman v. City of Florence, 858 F. Supp. 87 (E.D.

Key: 19DG) .ccecesscvescsssesnmerveccesnvessnsgenssemessationctsncscboversaetnrnet 7
Chipman uv. City of Florence, No. 1996-CA-001287-

MR (Ky.Ct.App. Nov. 25, 1998)..........:ccccssseeeessseeeeesseeeeeens 6
Chipman v. City of Florence, No. 94-CI-00202 slip

op. at 4 (Boone Co., Ky., Cir. Ct. Apr. 2, 1996).............. 6
City of Florence v. Chipman, 38 S.W.2d 387 (Ky.

DOTY oo snovcsaceecicsnecdordentvcnnciaeen eminem aaneien naan 6
Colorado River Water Conservation District No. 7 v.

United States, 424 U.S. 800 (1976) ..........cceeeeeeeeeeeeeeeees 17
Dennis v. Fiscal Court of Bullitt County, 784 S.W.2d

GOS (Ky. App. 1990)...............ccccccsceccescessneeetoeees 19, 20, 21
District of Columbia Court of Appeals v. Feldman,

GOO U7. BOE COED aves vivvicinscntionecsscconccnstenntcvcsssermccantenses 10

Egbert v. Curtis, 695 S.W.2d 123 (Ky. App. 1985)....... 21, 22
England v. Louisiana State Board of Medical

Examiners, 375 U.S. 411 (1964)... eeeeeeeeeeeeeeeeeeees 17
Harris v. Ashley, 165 F.3d 27 (CA6 1998) ...19, 20, 21, 24, 26
Hays v. Sturgill, 193 S.W.2d 648 (Ky. 1946)............... 26, 27
Holloway v. Brush, 220 F.3d 767 (CA6 2000) ............:::00+ 12

Kirchner v. Riherd, 702 S.W.2d 33 (Ky. 1985)............. 21, 22

ee

TABLE OF AUTHORITIES - Continued
Page
Kougasian v. TMSL, Inc., 359 F.3d 1136 (CA9 2004)... 15, 16
Moccio v. N.Y. State Office of Ct. Adm., 95 F.3d 195

(GAS TODD) ..cccvrcversvecsserssipsscvveevescenssenesssventevesesensetaes 14, 15
Newman v. Newman, 451 S.W.2d 417 (Ky. 1978).......... 29
Pennzoil Company v. Texaco, Inc., 481 U.S. 1

(ROBT) oo cecsseessesesecnssssvescsvveceesessentensserseneemeneaeniersen 11, 12, 13
Peterson Novelties, Inc. v. City of Berkley, 305 F.3d

BOB (CAG BOOB) ..ccccocseccoscrecssvsescessvvssseseusuavecsiesvsvessess 11, 12
Princess Lida of Thurn & Taxis v. Thompson, 305

LTS. 4B6 (1GBD) .ccerscrcescersescsrevvercecevsnssorsveccesvserevsusenseocenns 17
Razatos v. Colorado Supreme Court, 746 F.2d 1429

(CA10' 1984) .......c.ccccssssesssssessecscsnsovogeoesssreesesssesessseseens 14
Rooker v. Fidelity Trust Co., 263 U.S. 413 (1928)....... 10, 12
Smith v. Bob Smith Chevrolet, Inc., 275 F. Supp. 2d

808 (W.D. Ky. 2008) ...........ssesccccsssrereesesseeeeesessensoenes 26, 27
Stemler v. City of Florence, 126 F.3d 856 (CA6

BOTY oosccceccesessvoesssncsesssennsaressunsnsieessteerereimeranretnanenttel passim
Stemler v. City of Florence, 350 F.3d 578 (CA6

BOB) oeicecsverccceevscesersssesrentistansenseeeersierenielasressieneanieml passim
Stemler v. Florence, No. 94-CI-O00459...........::eseeeeeeeeeeeeeeeeees 6
Stern v. Nix, 840 F.2d 208 (CA3 1988).........::ccseseeeeereeees 14
Watts v. K, S & H, 957 S.W.2d 233 (Ky. 1997) ...... 18, 25, 27
Whittaker v. Cecil, 69 S.W.3d 69 (Ky. 2002).........::eeseeeees 29
Wicker v. Board of Education of Knott County, 826

F.2d 442 (CAG 1087) ........sessscvesercccssccvercerersoesorssesesessnsens 18
Yeoman v. Kentucky Health Policy Board, 983

S.W.2d 459 (Ky. 1998)...........cccsesssssssrrrreeeeeees 9, 19, 28, 29

TABLE OF AUTHORITIES — Continued

Page
STATUTES
ee SE ucsistscictnncuseceosiebniansedeivepionmmacionaeanveieenaia 18
Me CT, © Bi ircttcestcernnttnenicsemnnicimenimennin passim
OTHER AUTHORITIES

RESTATEMENT (SECOND) OF JUDGMENTS § 24
} RGR CRS RAR am ERD seen. esi eneRTCne 20, 21, 22, 23

RESTATEMENT (SECOND) OF JUDGMENTS § 25(e)
SAREE ae eae eee Rea emer Neen Nena ira Meet Ne Cn OY 23

1

OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI

Susan Stemler, William Chipman as Administrator of
the Estate of Conni Black, and Randy Black as Legal
Guardian of Shianne Black oppose the Petition for a Writ
of Certiorari filed by Bobby Joe Wince, Thomas Dusing
and John Dolan on the basis that Petitioners primarily
seek to clarify a procedural/jurisdictional rule, the Rooker-
Feldman doctrine, which is wholly foreign to the disposi-
tive issues of this case. Likewise, Petitioners’ assertion
that the Sixth Circuit misapplied the Kentucky law of
claim preclusion by not applying the transactional rule
cannot withstand a careful review of that settled case law.
Nevertheless, when applying the transactional rule (for
the sake of argument only) or when applying the applica-
ble claim preclusion standard, Respondents’ substantive
due process, excessive force and fabrication of evidence
claims are not barred by res judicata.

STATEMENT OF THE CASE
A. STATEMENT OF MATERIAL FACTS

The following recitation of facts borrows heavily from
the Sixth Circuit’s statement of facts in Stemler v. City of
Florence, 126 F.3d 856 (CA6 1997). A copy of that opinion
is attached hereto as Appendix 1. The Sixth Circuit,
understandably appalled at Petitioners’ conduct leading to
the death of Respondent Chipman’s daughter, Conni
Black, offered this terse summary of the facts:

The very notion that police officers should not
have known that they could not [at the time of
the police stop] force an incapacitated woman to
drive off with an obviously drunk man who they
had reason to believe had beaten her betrays a
chilling and unacceptable vision of the role of the
police in our society.

Id. at 870.

2

On February 18, 1994, Conni Black and her former
boyfriend, Steve Kritis, had been drinking excessively at a
local bar. An altercation arose between Black and Kritis
during which Kritis forcefully struck Black a number of
times and then later struck Black’s friend, Susan Stemler.
In the circumstances, Black asked Stemler to drive her
home. Kritis immediately pursued the two women in his
truck with his headlights kept off and at one point in the
pursuit rear-ended Stemler’s car in an attempt to make
her stop.’

A witness to the chase (Terry Barker) observed that
the women were in obvious distress. He reported that
Kritis, at a high rate of speed, pulled ahead of Stemler’s
car, forcing her down a residential cul-de-sac. When
Stemler pulled her car into a driveway, Kritis pulled
behind to block her in. At this time, a retired police officer
(William Minnick) was awakened by the noise. He then
saw Kritis standing in his driveway on the passenger
(Conni Black’s) side of the car hitting the car window and
yelling. Stemler then maneuvered around Kritis’ truck and
drove up the street, but Kritis jumped in his truck and
again gave chase. According to Barker, Kritis was driving
about 60 miles per hour on the sidewalk of the residential
street. After calling 911, Minnick got in his car and fol-
lowed Kritis and Stemler to the main highway at the top
of his street.

1. The Police Stop

After the vehicles pulled back onto the main street,
they stopped at a red light. At this time, Barker flashed
his lights to alert a nearby police officer, Defendant-
Petitioner Thomas Dusing, who was responding to the 911
call. When Dusing pulled up to Barker, Barker informed

* These facts are being culled from the Sixth Circuit's recitation of
the deposition testimony of various witnesses as reported in the opinion
at 126 F.3d 856. (Appendix 1)

3

him that there was a “serious problem” with the two
vehicles ahead of him and that Kritis appeared to be a
threat to the safety of the two women. Dusing then pulled
his cruiser in front of Stemler’s car and Kritis’ truck.
Stemler told Dusing that Kritis was drunk, that he had
assaulted both her and Black, that he had threatened to
kill her, and that he had placed both of them in danger by
chasing after them at high speed.

Another police officer approached Kritis, who told the
officer that Stemler'was a lesbian who was kidnapping his
girlfriend. Witnesses say that the officers and deputies at
the scene repeated to each other and to others present
Kritis’ assertion that Stemler was a lesbian. Kritis was
never tested for intoxication or even asked to step out of
the truck, even though Dusing was told by another police
officer that Kritis smelled of alcohol. Subsequent observers
would also testify that, shortly after the police stop, it was
unmistakably apparent that Kritis was very drunk.

Dusing ordered an officer to approach Black, who was
still in the passenger seat of Stemler’s car, to advise her
that she would be arrested for public intoxication “if she
didn’t want to leave with the male.” Two officers then
lifted her out of the car and walked her back to Kritis’
truck, with Black stumbling as she made her way. One
officer then physically placed her into the passenger seat
of the truck.

2. The Fatal Accident

As soon as Black was in the truck, Kritis drove away.
By Kritis’ account, Black passed out, but then woke up and
began to hit him. While striking her back, Kritis lost
control of the truck, which swerved and collided into the
guardrail. Black was partially ejected from the passenger-
side window. Her arm was severed from her body and the
top of her skull was severed off by the guardrail, but Kritis
continued driving for several miles before stopping. Black
died immediately upon impact with the guardrail.

4

Police officers not involved in the earlier police stop
arrived at the location where Kritis had stopped (respond-
ing to a 911 call by an individual on the scene). It was so
apparent to these officers that Kritis was drunk that they
did not even need to conduct a field sobriety test to deter- -
mine that there was probable cause to arrest Kritis for
driving under the influence.

Based upon these facts, the Sixth Circuit in Stemler
concluded that witness testimony clearly supported a
claim that the police officers acted at the police stop with
deliberate indifference to the threat of injury to Black:

[The officers] knew, or reasonably should have
known, that Kritis was unfit to drive. They knew,
or reasonably should have known, that Kritis
had assaulted [Black] earlier in the evening and
had threatened to hurt her. Nevertheless, they
chose to act affirmatively to place her in harm’s
way.
126 F.3d at 870.

3. Stemler’s Prosecution

After arresting Stemler, Officer Wince took her for a
blood test.’ Stemler related that she had drunk a half-
glass of beer and two Irish coffees over the course of the
night. She concluded that the officers must have tampered
with her blood sample, which allegedly revealed a .17
blood alcohol level an hour after a breathalyzer test
supposedly registered a .105 blood alcohol level. Wince
handled her blood sample after he learned that Black had
died. A forensic scientist reviewed the specimens and the
timing of the tests and concluded that the sample’s integ-
rity had been destroyed, given that Wince waited five days
to deliver the sample and that there were no procedures to

* As with the above facts, the Stemler prosecution facts are being
taken from the Sixth Circuit's recitation of the deposition testimony as
reported in the opinion at 126 F.3d 856. (Appendix 1)

|

9)

guard against tampering. When a blood sample is submit-
ted to the detective’s office of the Florence Police Depart-
ment, the clerk of that office is supposed to receive a
property card and an evidence tag; the clerk never re-
ceived either in this case in violation of department policy.
Stemler’s sample was the only sample that Wince had ever
kept in the Florence Police Departmeni refrigerator for
five days in his career and was also the only sample that
he had ever personally driven to the lab. According to
Officer Chester Snow, who supervised the property room,
it was “highly irregular” to keep a sample in the refrigera-
tor for five days.

Stemler was prosecuted in the Boone County District
Court for drunken driving. She defended the charge on the
ground that the evidence against her had been fabricated.
Dr. Gordon James testified at her trial that the handling
of the blood sample was “arbitrary” and that the chain of
custody had not been established. After her first trial
resulted in a hung jury, Boone County prosecutors deter-
mined to retry her. Although Wince claimed at Stemler’s
first DUI trial that he had not completed an evidence card,
at the retrial he produced a completed card which neither
the Florence Police Department clerk nor Snow had ever
seen. He claimed that he had completed the card on
February 9, at the time of the arrest; but the clerk testi-
fied that if that were true, she should have seen the card.
The second jury acquitted Stemler. As stated above,
although Stemler was twice tried for DUI and acquitted,
Petitioners did not even conduct a field sobriety test on
Kritis.

B. PROCEEDINGS BELOW
1. State Court Proceedings

a. Chipman’s Claims

On March 7, 1994, William Chipman, the administra-
tor of the estate of Conni Black, filed a wrongful death
action in the Boone Circuit Court against Florence police

6

officers, Boone County deputies, the City of Florence and
the Boone County Sheriff. The Boone Circuit Court en-
tered summary judgment on behalf of the defendants on
Chipman’s wrongful death claim. Chipman v. City of
Florence, No. 94-CI-00202 slip op. at 4 (Boone Co., Ky., Cir.
Ct Apr. 2, 1996). The Kentucky Court of Appeals reversed
the Boone Circuit Court. Chipman v. City of Florence, No.
1996-CA-001287-MR (Ky.Ct.App. Nov. 25, 1998). The
Kentucky Supreme Court reversed and reinstated the
summary judgment in favor of defendants. City of Florence
v. Chipman, 38 S.W.3d 387 (Ky. 2001).

The Kentucky Supreme Court reasoned that there
was no “special relationship” between Black and the
officers, when the pickup truck struck the guardrail,
to support a wrongful death claim. Jd. at 392. The Court
determined that no “special relationship” existed because
Black was not in custody “at the time the injury producing
act occurred,” which the Kentucky Supreme Court held to
be the time the truck struck the guardrail. Jd. More
specifically, the Court held:

There is no evidence from which it can be ascer-
tained that Black was in state custody or other-
wise restrained by the police at the time the
pickup truck struck the guardrail with the fatal
result. In addition, there is no evidence to sup-
port a claim that the conduct which caused the
pickup truck to leave the roadway and strike the
guardrail was the result of the actions of the po-
lice officers.

Id. at 392. The Kentucxy Supreme Court’s decision was
rooted in the absence of a special relationship at the time
the truck struck the guardrail.

b. Stemler’s Claims

Susan Stemler brought claims of malicious prosecu-
tion, false arrest, abuse of process, assault and battery,
false imprisonment and negligent or intentional infliction
of emotional distress. Stemler v. Florence, Boone Circuit

7

Court, No. 94-CI-00459. The state trial court granted
summary judgment in favor of the defendants on all
claims except Stemler’s assault and battery claim against
Wince, which Stemler voluntarily dismissed so that an
appeal could proceed. The Kentucky Court of Appeals
affirmed the decision of the trial court. Stemler did not
seek further appeal in state court on these claims.

2. Federal Court Proceedings
a. Chipman’s Claims

On March 31, 1994, three weeks after filing the
wrongful death action in state court, Chipman also filed a
complaint in federal court against the same defendants.
The complaint alleged that the defendants were liable
under 42 U.S.C. § 1983 because they had displayed delib-
erate indifference to the welfare of Conni Black by failing
to arrest Kritis and putting Black into his truck. The
district court granted the officers’ motions to dismiss
under Rule 12(b)(6) of the FRCP on the grounds of quali-
fied immunity. The district coui also granted the motions
for summary judgment of Fl Both Black’s complaint and Stemler’s complaint allege that
Kritis’s blood alcohol level at the time of the police stop was .20.

App. 7

At some point, Dusing asked Wince to test Stemler for
intoxication. By that time, Wince had already heard
Kritis’s allegation that Stemler was a lesbian. Wince did
not find any of the standard DUI indicators in examining
Stemler; she did not have affected speech, impaired
balance, impaired walking, or impaired coordination, and
she did not seem disoriented. According to Wince, Stemler
failed the horizontal nystagmus gaze field test, a test in
which uncontrolled movement in a suspect’s eyes may
indicate drunkenness. However, Stemler alleges that
Wince did not know how to perform that test properly, and
had to ask for assistance with the test from Dolan. Stemler
alleges further that Dolan also did not know how to
perform the nystagmus test. Wince testified that the
breathalyzer revealed a blood alcohol level of .105.° Stem-
ler alleges that the breathalyzer was not properly cali-
brated.

After performing the field tests, Wince conferred with
Dusing and Dolan. By this time, all three cfficers had
heard Kritis’s claim that Stemler was a lesbian. Dusing
decided that they should arrest Stemler for driving under
the influence, and the other officers agreed. Dusing would
later concede that, in deciding to arrest Stemler and not
Kritis, he relied on Kritis’s version of events more than he
did Stemler’s. Wince approached Stemler, informed her
that she was under arrest, and asked her who she would
like to tow her car. Stemler broke into tears, pointed at
Kritis, and asked Wince, “Aren’t you going to check him?
Why don’t you check him?” As she was pointing, Wince

* Stemler’s complaint alleges that she had a blood alcohol level
below .10 at the time cf the police stop.

App. 8

grabbed her arm, pulled it behind her, and placed her in
handcuffs.”

At approximately the same time, two unknown
officers, one each from Florence and from Boone County,
approached Barker, who was parked across the street.
Barker related the complete story of the chase to both
officers. Barker overheard one of the officers relating his
story to a third officer. The officers asked him whether he
saw Stemler driving the car, and whether he would be
willing to testify against Stemler in court. Upon learning
that Stemler was being placed under arrest, Barker told
the officers that they were arresting the wrong person and
that Kritis was obviously “crazy”; the officers didn’t
appreciate that, became “arrogant,” and told him that he
didn’t “know what’s going on” and that he could “go on
about your business.” Barker was dumbfounded and
angered by the officers’ actions. Barker confirms that the
police never asked Kritis to leave the truck, despite the
fact that, as during the chase, Kritis still had not turned
his headlights on. Although the officers told Barker that
they would contact him to be a witness against Stemler,
they never did so. Furthermore, Wince failed to list Barker
as a witness at the scene in his field notes, and the card on
which the officers supposedly were writing down Barker’s
name and telephone number was lost.

While Wince was testing Stemler for intoxication, Mr.
Minnick arrived at the scene. He spoke first with defen-
dant Boone County Officer Chris Alsip. Alsip immediately

* In her complaint, Stemler alleges that Wince used excessive force
in handcuffing her. The district court denied Wince’s motion to dismiss
this claim; however, Stemler has voluntarily dismissed her excessive
force claim.

6 SAM dy OR

App. 9

“informed” him that Stemler was a lesbian. Minnick
thought that it was odd that Alsip could state that fact
with such certainty, given that Stemler had out-of-state
license plates- Wince also made a point of informing
Minnick that Stemler was a lesbian. Although the officers
at the police stop were aware that Minnick had observed
Kritis chasing Stemler, they asked him only whether they
observed Stemler driving her car.

Dusing ordered Dolan to approach Black, who was
still in the passenger seat of Stemler’s car, and to inform
her that she would be arrested for public intoxication “if
she didn’t want to leave with the male.” At that time,
Black was very intoxicated; her eyes were glassy and she
slurred her words. Alsip and Dolan lifted her out of the car
and assisted her to Kritis’s truck. Black stumbled as she
walked to the truck. Alsip physically placed her into the
passenger seat in the truck. Alsip would later admit that
he never heard Black say that she wanted to leave with
Kritis.° Dusing told Alsip only that Stemler was a lesbian
and that Kritis did not want his girlfriend with her; Alsip
would later concede that, if he had known of all the pre- —
ceding events that evening, he would not have placed
Black in the truck but instead would have arrested Kritis.

* Black’s complaint alleges that, “having lost the assistance of
Susan Stemler, under threat of arrest and against her will,” she
capitulated and allowed herself to be placed into Kritis’s truck. Dolan
testified that Black asked if she could leave with Kritis; however,
Black’s estate argues that Dolan had an incentive to be untruthful on
this point, and that the issue of his veracity should be reserved for the
factfinder. Given the officers’ admissions that Dusing ordered Dolan to
threaten Black with arrest, and Black’s earlier unwillingness to leave
with Kritis, a view of the evidence most favorable to Black would
indicate that she involuntarily left the scene of the police stop with
Kritis.

App. 10

C. The Subsequent Accident

As soon as Black was in the truck, at about 3:00 a.m.,
Kritis drove away. Kritis drove two blocks from the police
stop and then turned onto the northbound lanes of I-75.
Black had passed out in the truck. According to Kritis,
when she woke up, she “went haywire” and began hitting
him; he hit her back and lost control of the truck. The
truck swerved to the right and collided side-to-side with a
guardrail. The impact threw Black partially out of the
passenger side window. Black’s arm was completely
severed from her body and her head was severed into two
parts. The truck was damaged and the front tire was
blown. Kritis continued to drive slowly on I-75 and then
east on I-275 until the truck could proceed no further.

A passing motorist, Kristopher Waldespuhl, was
waved down by Kritis around 3:45 a.m. Kritis said, “my
girlfriend is kind of hurt,” and asked for help. According to
Waldespuhl, Kritis spoke “very nonchalantly,” and “had no
emotions at all, wasn’t upset.” It was immediately obvious
to Waldespuhl that Kritis was drunk; Kritis had alcohol on
his breath, his eyes were glazed and bloodshot, and he was
not acting sober. Kritis admitted to Waldespuhl that he
was drunk. He also told Waldespuhl that “they were
fighting at Willie’s and some dyke bitch took her from me.”
Waldespuhl walked over to the other side of the truck. It
was immediately apparent to Waldespuhl that Black was
dead, although Kritis was unaware of this fact.
Waldespuhl left to place a 911 call.

Officer Stephen Johnson of the Lakeside Park-
Crestview Police Department arrived at the scene. It was
obvious to Johnson that Kritis was drunk; he did not even
need to conduct a field sobriety test to determine that he

App. 11

had probable cause to arrest Kritis. Another officer at the
scene, Mike Mann, also immediately determined that
Kritis was drunk. According to Mann, “Steve Kritis told
me that he and his girlfriend were fighting and exchang-
ing blows. He stated that he felt a large ‘thud’ but contin-
ued driving the truck. His truck started to quit and he
pulled over.” Johnson placed Kritis under arrest for
driving under the influence at 4:30 a.m.’

An accident reconstruction specialist, Detective Jack
Prindle, determined that, at the time of the impact with
the guardrail, the truck was traveling at sixty-six miles
per hour. The truck had traveled from the scene of the
police stop to the scene of the accident in about five min-
utes. The accident occurred when the steering wheel
turned abruptly to the right; there is no way to know what
caused the wheel to turn. As the vehicle struck the guard-
rail, Black was partially ejected, causing her head and
right arm to be severed on the guardrail. Kritis continued
on for 2.5 miles before stopping.

D. Stemler’s Prosecution

After arresting Stemler, Wince took her for a blood
test. Stemler claims that she had had only a half-glass of
beer and two Irish coffees over the course of the night. She
suspects that the officers tampered with her blood sample,
which allegedly revealed a .17 blood alcohol level an hour
after the breathalyzer allegedly revealed a .105 blood

’ Kritis would subsequently plead guilty in the Boone County
District Court to manslaughter in the second degree and to wanton
endangerment in the first degree. He was sentenced only to probation.
After violating the terms of his probation, he is now serving a five-year
prison sentence.

ME ae es a eae

———

App. 12

alcohol level. Wince handled her blood sample after he
learned that Black had died. Larry Dehus, a “forensic
scientist,” reviewed the specimens and the timing of the
tests and concluded that the sample’s integrity had been
destroyed, given that Wince waited five days to deliver the
sample and that there were no procedures to guard
against tampering. When a blood sample is submitted to
the detective’s office of the Florence Police Department,
the clerk of that office, Mary Hayes, is supposed to receive
a property card and an evidence tag; Hayes never received
either with respect to Stemler’s blood sample. This was_a
violation of department policy. Stemler’s sample was the
only sample that Wince had ever kept in the Florence
Police Department refrigerator for five days in his career,
and was also the only sample that he had ever personally
driven to the lab. According to Officer Chester Snow, who
supervised the property room, it would be “highly irregu-
lar” to keep a sample in the refrigerator for five days.

Stemler was prosecuted in the Boone County District
Court for driving under the influence of alcohol. She
defended the charge on the ground that the evidence
against her had been fabricated. Dr. Gordon James testi-
fied at her trial that the handling of the blood sample was
“arbitrary” and that the chain of custody had not been
established. Her first trial resulted in a hung jury. She
was retried. Although Wince claimed at Stemler’s first
DUI trial that he had not completed an evidence card, at
the retrial he produced a completed card which neither
Hayes nor Snow had ever seen. He claimed that he com-
pleted the card on February 19, at the time of the arrest;
Hayes testified that if that were true, she should have
seen the card. The second jury acquitted Stemler.

App. 13

E. Related State Court Proceedings

On March 7, 1994, Black’s estate filed a wrongful
death action under Kentucky law against each of the
defendants in this case in the Boone County Circuit Court.
Chipman v. Florence, No. 94-CI-00202. Stemler also
brought suit against the defendants herein in the Boone
County Circuit Court, raising state-law claims of malicious
prosecution, false arrest, abuse of process, assault and
battery, false imprisonment and negligent or intentional
infliction of emotional distress. Stemler v. Florence, No. 94-
CI-00459. The state court consolidated the two suits, and
in separate orders on April 2 and April 26, 1996, it
awarded the defendants summary judgment on all claims
except Stemler’s assault and battery claim against Wince.
Stemler voluntarily dismissed that claim. Both Black and
Stemler have appealed the judgments against them, and
their appeals are pending in the Kentucky Court of Ap-
peals.

F. Proceedings Below

On March 31, 1994, William Chipman, the adminis-
trator of the estate of Conni Black, filed a complaint in the
United States District Court for the Eastern District of
Kentucky against Dusing, Dolan, Wince, Reuthe, and
Alsip. The complaint also named the City of Florence and
Ron Kenner, the Boone County Sheriff. The complaint

* The appellees have informed the court that Kenner died on May

11, 1997. The appellees should have informed the court at the same

time of the identity of Kenner’s successor. See FED. R. APP. P. 43(c).

Since Black sued Kenner only in his official capacity as Boone County

sheriff, for the purposes of this appeal we will treat the claims against
(Continued on following page)

App. 14

alleged that the defendants were liable under 42 U.S.C.
§ 1983 for Black’s wrongful death, insofar as the defen-
dants had displayed deliberate indifference in placing her
in the car in which she was later killed. On August 2,
1994, the district court granted the individual officers’
motions to dismiss under FED. R. CIV. P. 12(b)(6) on the
ground of qualified immunity. Chipman v. City of Florence,
858 F. Supp. 87 (E.D. KY. 1994), reconsideration denied on
amended complaint, 866 F. Supp. 332 (E.D. KY. 1994). On
July 3, 1996, the district court granted the City of Flor-
ence’s and Boone County’s motions for summary judgment.
Black now appeals, and her appeal is pending under
docket number 96-5996.

On January 24, 1995, Susan Stemler filed a complaint
under 42 U.S.C. § 1983 in the United States District Court
for the Eastern District of Kentucky against Wince,
Dusing, Dolan, and the City of Florence. The complaint
alleged claims of excessive force, wrongful arrest, mali-
cious prosecution, and violation of equal protection on the
bases of sex and sexual orientation. On October 6, 1995,
the district court granted the individual officers’ motion to
dismiss on grounds of qualified immunity. On July 3, 1996,
after consolidating Stemler’s case with Black’s, the district
court awarded summary judgment to the City of Florence.
Stemler now appeals both orders, and her appeal is
docketed in this court as No. 96-5993.

We have consolidated the two appeals for considera-
tion. We will consider first both plaintiffs’ claims against
the municipal defendants, then Black’s claims against the

him and the other Boone County defendants in their official capacities
as a suit directly against Boone County.

App. 15

individual officers, and finally Stemler’s claims against the
individual officers.

II. Municipal Liability Under § 1983

We may easily dispose of the claims against the City
of Florence and Boone County. While a municipality may
be held liable under 42 U.S.C. § 1983 for a constitutional
violation directly attributable to it, § 1983 does not impose
vicarious liability on a municipality for the constitutional
torts of its employees. See Monell v. Department of Soc.
Servs. of the City of New York, 436 U.S. 658, 692, 56 L. Ed.
2d 611, 98 S. Ct. 2018 (1978). Therefore, in order to state a
claim against a city or a county under § 1983, a plaintiff
must show that his injury was caused by an unconstitu-
tional “policy” or “custom” of the municipality. See Pem-
baur v. City of Cincinnati, 475 U.S. 469, 480-81, 89 L. Ed.
2d 452, 106 S. Ct. 1292 (1986). The plaintiffs both assert
that they were injured by the municipalities’ allegedly
deficient training programs. Where, as here, the identified
policy is itself facially lawful, the plaintiff “must demon-
strate that the municipal action was taken with ‘deliberate
indifference’ as to its known or obvious consequences. A
showing of simple or even heightened negligence will not
suffice.” Board of County Comm’rs of Bryan County v.
Brown, 137 L. Ed. 2d 626, 117 S. Ct. 1382, 1390 (1997)
(quoting City of Canton v. Harris, 489 U.S. 378, 388, 103
L. Ed. 2d 412, 109 S. Ct. 1197 (1989)). ““Deliberate indif-
ference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious
consequence of his action.” Brown, 117 S. Ct. at 1391. In
other words, the risk of a constitutional violation arising
as a result of the inadequacies in the municipal policy
must be “plainly obvious.” Jd. at 1393.

App. 16

As noted above, in the present case, both Stemler and
Black argue that the municipalities should be held liable
as a result of their failure to train their officers ade-
quately. Neither plaintiff has demonstrated that there is a
genuine issue of material fact as to whether the training
programs were adequate, or as to whether the city or the
county acted with deliberate indifference to the risk of a
constitutional violation. Officers of both the city and the
county are required to attend the Basic Police Academy of
the Kentucky Justice Cabinet Department of Criminal
Justice Training. The academy is a 400-hour course in
which officers are taught the elements of criminal offenses
under Kentucky law, the definition of probable cause, and
procedures for the handling of evidence. At the academy,
officers are also taught how to ensure the safety of poten-
tial victims of domestic violence. In addition, both the city
and the county require their officers to attend a forty-hour
training class every year; this program also includes
training as to the proper response to an allegation of
domestic violence. Neither Stemler nor Black have identi-
fied any reason to believe that the training programs were
inadequate in any way. Each argues only that the defen-
dant officers lacked complete familiarity with their de-
partment’s policy manuals; however, neither plaintiff
asserts any reason to believe that the city or the county
did not take proper steps to ensure that their officers knew
and complied with their policies.

Furthermore, a plaintiff ordinarily cannot show that a
municipality acted with deliberate indifference without
showing that the municipality was aware of prior uncon-
stitutional actions of its employees and failed to respond.
See Brown, 117 S. Ct. at 1390; Canton, 489 U.S. at 390-91.
The plaintiffs are unable to identify any prior instances of

App. 17

misconduct in the Boone County Sheriff’s Department.
With respect to the City of Florence, they argue only that
Wince had once had a sexual harassment complaint filed
against him by a co-worker.’ However, there is no indica-
tion that the city failed to respond appropriately to that
complaint, or that because of that one complaint it should
have been “plainly obvious” to the city that Wince would
falsely arrest a woman solely on the basis of her perceived
sexual orientation or force a woman against her will into
the truck of a drunk and violently abusive man. Therefore,
because the plaintiffs cannot show that either the city or
the county acted with deliberate indifference to the risk of
a constitutional tort, the award of summary judgment to
the municipal defendants must be affirmed.

III. Black’s Substantive Due Process Claim
A. Test for Qualified Immunity

We turn now to the merits of Black’s claim against the
individual officers. She alleges that the officers violated her
right to “substantive due process”” under the Fourteenth

* During the course of discovery, Stemler was denied access to the
defendants’ personnel files. Instead, the magistrate judge conducted an
in camera review of those files and determined that they did not
contain relevant evidence. Stemler now claims that the magistrate
judge erred and that the files may contain evidence of other incidents to
which the City of Florence failed to respond. However, she has waived
this claim by failing to appeal the magistrate judge’s ruling to district
court. See FED. R. CIV. P. 72(a).

In contrast to procedural due process, which guarantees that
individuals will be afforded fair procedures before they are deprived of
life, liberty, or property, substantive due process protects individuals
against “certain government actions regardless of the fairness of the
procedures used to implement them.” Daniels v. Williams, 474 U.S. 327,
331, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). But cf. JOHN HART ELY,

(Continued on following page)

App. 18

Amendment by forcing her to leave the scene of the police
stop in Kritis’s truck. In other words, her claim is that the
officers deprived her of her liberty (and, ultimately, her
life) without due process of law by threatening to arrest
her if she did not leave with Kritis, and by physically
placing her against her will in his truck. Because Black
seeks to hold the officers liable in their individual capaci-
ties under 42 U.S.C. § 1983, she must show not only that
the officers’ actions were unconstitutional, but also that
-they should have known at that time that they were
violating her rights. “[Glovernment officials performing
discretionary functions generally are shielded from liabil-
ity for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396,
102 S. Ct. 2727 (1982).

It is not necessary that the very action have been
previously held unlawful but, given the preexist-
ing law, the unlawfulness of the conduct must
have been apparent. In determining whether an
official is entitled to qualified immunity, this
court asks whether the law was clearly estab-
lished at the time of the alleged action.

Barton v. Norrod, 106 F.3d 1289, 1293 (6th Cir. 1997)
(citation omitted). In determining whether the officers
should have known in February 1994 that their actions

DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW
18 (1980) (suggesting that non-textual constitutional claims would be
better analyzed under the Privileges and Immunities Clause of the
Fourteenth Amendment; “Familiarity breeds inattention; and we
apparently need periodic reminding that ‘substantive due process’ is a
contradiction in terms — sort of like ‘green pastel redness.’ ”).

App. 19

weve unlawful, we look primarily to decisions of the
Supreme Court, this court, and other courts within our
circuit. See Cagle v. Gilley, 957 F.2d 1347, 1348 (6th Cir.
1992). 7

We review the district court’s determination that the
officers were entitled to qualified immunity de novo. See
Barton, 106 F.3d at 1293. In the present case, the district
court reviewed the relevant case law dealing with claims
that state actors violated substantive due process by
allowing individuals to become subject to an indirect
harm, and found much of that law to be confused and in
conflict. It then appeared to reason that, since the doctrine
of substantive due process was unclear in its entirety, no
such claim could ever survive a motion to dismiss on the
ground of qualified immunity: “This inquiry shows that
the law in this area is unclear and that not only would no
reasonable police officer have known what duty was owed
to the plaintiff under the facts alleged in this case, but
even the Supreme Court is uncertain on the matter.”
Chipman v. City of Florence, 858 F. Supp. 87, 90 (E.D. Ky.
1994) (citing DeShaney v. Winnebago County Dep't of Soc.
Servs., 489 U.S. 189, 199, 103 L. Ed. 2d 249, 109 S. Ct. 998
(1989)) (dismissing complaint); see also Chipman, 866 F.
Supp. 332, 335 (E.D. Ky. 1994) (denying motion for recon-
sideration).

This was error. While, as we will see below, there is a
good deal of uncertainty with regard to the precise con-
tours of substantive due process, it does not follow that
state actors are insulated from liability on all such claims,
no matter what the underlying facts may be. The fact that
the law may have been unclear, or even hotly disputed, at
the margins does not afford state actors immunity from
suit where their actions violate the heartland of the

7 App. 20

constitutional guarantee, as that guarantee was under-
stood at the time of the violation.” Stated differently, it is
simply irrelevant that the definition of the right to sub-
stantive due process has been in flux if, under any defini-
tion found in the case law at the time, the defendants
should have known in February 1994 that their actions
violated that right.

B. Custody Establishes the Existence of a Duty

We therefore proceed to determine whether the
individual officers violated law that was clearly estab-
lished in February 1994 when they forced Black into
Kritis’s truck. When, as here, a plaintiff alleges that state
actors violated substantive due process by placing her at
risk of harm from a third party, the court is presented with
two distinct, though interrelated inquiries. First, in order
to find for the plaintiff, the court must conclude that the
plaintiff and the state actors had a sufficiently direct
relationship such that the defendants owed her a duty not
to subject her to danger. Second, the court must also
conclude that the officers were sufficiently culpable to be
liable under a substantive due process theory.

" An instructive parallel: the district court’s theory is analogous to
an attempt to strike down a statute as unconstitutionally vague on its
face because the application of the statute is not clear at the margins.
Such an attempt will be unavailing, since federal courts will consider a
facial vagueness claim only if a statute is unconstitutionally vague in
all possible applications. See Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 102 S. Ct.
1186 (1982). Similarly, the mere fact that a state actor may be entitled
to qualified immunity on some claims under a particular constitutional
theory because the law is unclear in some respects does not imply that
he will be immune from any and all suits arising under that theory.

App. 21

With respect to the first question, while the state does
not owe its citizens a constitutional duty to keep them
from harm in all circumstances, it has been clearly estab-
lished that such a duty will arise when the state has acted
to deprive an individual of certain indicia of liberty:

The affirmative duty to protect arises not from
the State’s knowledge of the individual’s pre-
dicament or from its expressions of intent to help
him, but from the limitation which it has im-
posed on his freedom to act on his own behalf. In
the substantive due process analysis, it is the
State’s affirmative act of restraining the individ-
ual’s freedom to act on his own behalf — through
incarceration, institutionalization, or other simi-
lar restraint of personal liberty — which is the
“deprivation of liberty” triggering the protections
of the Due Process Clause, not its failure to act to
protect his liberty interests against harms in-
flicted by other means.

DeShaney v. Winnebago County Dep't of Soc. Servs., 489
U.S. 189, 200, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989)
(citation omitted); see also Youngberg v. Romeo, 457 U.S.
307, 315-16, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982) (invol-
untarily committed mental patients have substantive due
process right, analogous to Eighth Amendment right of
prisoners, to protection from harm). In the present case,
Black’s complaint alleges — and the record evidence could
reasonably be read to show — that the officers threatened
to arrest her if she did not leave in Kritis’s truck, and they
physically lifted her out of Stemler’s car and placed her in
the truck against her will. In so doing, the officers took the
“affirmative act of restraining [Black’s] freedom to act on
her [own] behalf,” and consequently imposed upon them-
selves a duty to ensure that they were not placing her in

ane i
q

App. 22

danger. Their actions were, in the words of DeShaney, a
restraint on Black’s personal liberty, not a failure to act on
her behalf. See also Collins v. City of Harker Heights, 503
U.S. 115, 127, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992).

The defendants rely on Foy v. City of Berea, 58 F.3d
227 (6th Cir. 1995), to argue that they did not infringe
Black’s liberty. In Foy, the plaintiff had been drinking in a
dormitory with his friends. After receiving a complaint,
the police came to the dormitory and told them, “Get in
your car and get out of here or somebody is getting ar-
rested.” Although the police had told them only to leave
the premises, the plaintiff and his friends then decided to
take a lengthy drive from Berea, Kentucky, to Crestline,
Ohio. Forty-five minutes into that journey, the driver
crashed the car, killing Foy. This court held that the
defendant police officers had not violated Foy’s right to
substantive due process, since there was no restraint on
his liberty that had caused him to keep driving. Id. at 230.
The defendants also rely on Walton v. City of Southfield,
995 F2d 1331 (6th Cir. 1993). In Walton, we held that
police officers who had arrested the driver of a car, and
who had abandoned in a nearby building the children
(ages 15 and 2) who were the passengers of that car — but
who had never taken the children into their custody —
were entitled to qualified immunity from a substantive
due process challenge.

Neither case is apposite. In the present case, Black
was rendered unable to protect lerself by virtue of both
the threat of arrest and her physical placement in the
truck by the officers. Unlike Foy, Black never had the
opportunity to make a voluntary choice to continue driving
with Kritis beyond the span of time that the police had in
effect ordered her to do so; her fatal accident occurred

App. 23

about five minutes after the truck left the police stop.
Furthermore, unlike Walton, Black was in the custody of
the defendant officers in the sense that they had affirma-
tively acted to deprive her of her liberty, rather than
merely negligently refused to act to protect her. See
Walton, 995 F.2d at 1336-37. In sum, neither Foy nor
Walton did anything to alter the clear and simple rale that
state actors owe a duty of care to those individuals of
whom they deprive their liberty, and a reasonable jury
could conclude that the officers had deprived Black of her
liberty by placing her in the truck or by threatening her
with an arrest that would have been unwarranted under
Kentucky law. See Ky. Rev. Stat. § 222.202 (offense of
public intoxication involves drinking in public or endan-
gering one’s self, other persons, or property).

While it is clear that the state owes a duty of care to
an individual who has suffered a deprivation of liberty by
the state — e.g., an individual who has been in the state’s
custody — there is also dicta in DeShaney that suggests
that the state may also owe a duty to individuals in non-
custodial settings:

While the State may have been aware of the
dangers that Joshua faced in the free world, it
played no part in their creation, nor did it do
anything to render him any more vulnerable to
them.

489 U.S. at 201. A number of courts have relied on this
language to hold that the state may owe an individual a
duty of care under substantive due process, even if the
individual is not in the state’s custody, if the state has
created a risk of harm to the individual. See Kneipp v.
Tedder, 95 F.3d 1199, 1206-09 (3d Cir. 1996) (collecting
cases). Our court has suggested in dicta that DeShaney

App. 24

stands for the proposition that “a duty to protect can arise
in a noncustodial setting if the state does anything to
render an individual more vulnerable to danger.” Gazette
v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir. 1994). The
defendants argue that this rule was not clearly established
in February of 1994, and remains unclear today. We need
not opine as to the circumstances under which a substan-
tive due process claim in a non-custodial setting is possi-
ble, or as to whether that possibility had been clearly
established in 1994. Under any definition of the term,
Black was in the defendant officers’ custody at the time
she was forced into Kritis’s truck. Because we, unlike the
district court, believe that any uncertainty at the margins
of the DeShaney test is not relevant to Black's claim, we
hold that the defendants should have known under clearly
established law that they owed Black a duty not to force
her into harm’s way.

C. The Defendants Violated Their Duty to Black by
Exhibiting Deliberate Indifference to Her Fate

Our holding that the officers owed Black a duty of
care does not end our inquiry, for we also must determine
what duty of care they owed, and whether they breached
that duty. Over the last decade, the Supreme Court and
this court have gradually defined the level of culpability
with which a state defendant must act in order to be held
liable for a violation of substantive due process. In Daniels
v. Williams, 474 U.S. 327, 334 n.3, 88 L. Ed. 2d 662, 106 S.
Ct. 662 (1986), the Supreme Court held that an allegation
of simple negligence would not be sufficient to support a
due process claim, but reserved judgment as to whether an
allegation of gross negligence would suffice. In Nishiyama
v. Dickson County, 814 F.2d 277 (6th Cir. 1987) (en banc),

App. 25

this court answered that reserved question in the affirma-
tive. In that case, the plaintiff had been killed by an
inmate who stopped her by using a patrol car that he had
been allowed to use by county officials despite repeated
warnings. We held that the plaintiff had stated a substan-
tive due process claim:

The allegation in the present complaint of gross
negligence on the part of the defendants was suf-
ficient to charge them with arbitrary use of gov-
ernment power....... [A] person may be said to
act in such a way as to trigger a section 1983
claim if he intentionally does something unrea-
sonable with disregard to a known risk or a risk
so obvious that he must be assumed to have been
aware of it, and of a magnitude such that it is
highly probable that harm will follow.

Id. at 282.

This aspect of Nishiyama has since been further
refined. In Lewellen v. Metropolitan Gov't of Nashville &
Davidson County, 34 F.3d 345 (6th Cir. 1994) - a case
decided after the defendant officers forced. Black into
Kritis’s car — we held that, with respect to non-custodial
cases, Nishiyama was no longer an accurate statement of
the law after DeShaney and Collins v. City of Harker
Heights, 503 U.S. 115, 117 L. Ed. 2d 261, 112 S. Ct. 1061
(1992). In holding that a school board’s negligence in
building a school too close to a power line was not action-
able under § 1983, we set forth a new test: “What seems to
be required is an intentional infliction of injury ... or
some other governmental action that is ‘arbitrary in the
constitutional sense.’” Lewellen, 34 F.3d at 351 (quoting
Collins, 503 U.S. at 129); see also Gazette, 41 F.3d at 1067
(gross negligence is not actionable under substantive due

App. 26

process). We also expressed doubt as to whether even
deliberate indifference by state actors could give rise to a
substantive due process claim by a plaintiff who was not in
the custody of the state. Lewellen, 34 F.3d at 350 n.4.

Of course, the phrase “arbitrary in the constitutional
sense” is not self-defining; indeed, in Collins, the only
elucidation that the Supreme Court provided for that
phrase was a reference to the old chestnut of substantive
due process claims, “conscience shocking.” 503 U.S. at 128.
The defendants’ argument is essentially that Black’s claim
fails the test of Lewellen and Collins because there is no
law now, nor was there in 1994, clearly specifying any area
of liability under substantive due process. In essence, they
argue that there is no clearly established law holding that
they have any duty to persons in their custody. As they
conceded at oral argument, under their theory, they would
not be liable even if they physically carried Black to the
middle of a busy highway and left her there. However,
Collins carefully noted that its holding was limited to
those cases where a plaintiff was not in the custody of the
state, and specifically reaffirmed the established law that
the state is required to take care to protect persons in its
custody from danger. See Collins, 503 U.S. at 127; see also
Lewellen, 34 F.3d at 350 n.4. Since, as we have held above,
viewing the facts in her favor, Black was in the defendants’
custody at the time that they forced her into Kritis’s truck,
they owed her a duty not to endanger her safety.

In cases such as this one, where the plaintiff suffered
injury as a result of being placed in the state's custody, it
has consistently and uncontroversially been the rule that a
constitutional claim arises where the injury occurred as a
result of the state’s deliberate indifference to the risk of
such an injury. See Farmer v. Brennan, 511 U.S. 825, 834,

App. 27

128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994); Wilson v. Seiter,
501 U.S. 294, 303, 115 L. Ed. 2d 271, 111 S. Ct. 2321
(1991); Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d
251, 97 S. Ct. 285 (1976). Although each of these cases
involved an Eighth Amendment claim raised by a prisoner,
we have consistently held that at least the same standard
applies to substantive due process claims raised by other
persons in the custody of the state. See Durham v.
Nu‘Man, 97 F.3d 862, 869 (6th Cir. 1996) (patient at state
mental hospital), cert. denied, 137 L. Ed. 2d 496, 117 S. Ct.
1337 (1997); Lintz v. Skipski, 25 F.3d 304, 306 (6th Cir.
1994) (children in state foster home); Heflin v. Stewart
County, 958 F.2d 709, 713-14 (6th Cir. 1992) (pretrial
detainee); Meador v. Cabinet of Human Resources, 902
F2d 474, 476 (6th Cir. 1990) (children in state foster
home). While Lewellen may have declared that the range
of culpable conduct is narrower in cases where the plaintiff
is not in the state’s custody, it did nothing to change the
standard of deliberate indifference in cases involving a
custodial relationship. See Foy, 58 F.3d at 232 (noting
distinction). In cases in which a plaintiff alleges an injury
arising out of the state’s custody over her, the deliberate
indifference test ensures that injuries arising out of truly
arbitrary governmental action are compensated, while at
the same time avoiding the imposition on to the states of a
broad, federalized system of tort law. We therefore re-
affirm the application of that test today.

We again note that the district court erred in holding
that the entire field of substantive due process law regard-
ing state liability for indirect injury was not clearly estab-
lished in 1994. See Chipman, 858 F. Supp. at 90. Although
the discussion above reveals that there is obviously con-
siderable uncertainty at the margin, the core principle

App. 28

that the state must not act with deliberate indifference to
the risk of injury to persons in its custody is well-
established. In the present case, we believe that Black’s
complaint, as well as the record evidence read in the light
most favorable to her, supports a claim that the defendant
officers acted with deliberate indifference to the threat of
injury to her. They knew, or reasonably should have
known, that Kritis was unfit to drive. They knew, or
reasonably should have known, that Kritis had assaulted
her earlier in the evening and had threatened to hurt her.
Nevertheless, they chose to act affirmatively to place her
in harm’s way.

The very notion that police officers should not have
known that they could not force an incapacitated woman
to drive off with an obviously drunk man who they had
reason to believe had beaten her betrays a chilling and
unacceptable vision of the role of the police in our society.
In short, these facts support a substantive due process
claim under law that was clearly established in 1994, and
we are therefore obliged to reverse the dismissal of her
complaint against the individual officers.”

The defendants have argued that Black is precluded from
relitigating the findings of the Boone County Circuit Court in her state-
law civil suit. In awarding judgment to the defendant officers on Black’s
wrongful death claim, the state court held that none of the state actors
were the direct cause of the accident on the highway. Chipman v. City of
Florence, No. 94-CI-00202 slip op. at 4 (Boone Co., Ky., Cir. Ct. Apr. 2,
1996). While those findings are entitled to preclusive effect, they are
irrelevant to the merits of her substantive due process claim.

App. 29

IV. Stemler’s Claims against the Individual
Officers

We turn now to the merits of Stemler’s claims against
the individual officers. She has raised claims of false
arrest and malicious prosecution against the officers. She
also asserts that her arrest violated the Equal Protection
Clause insofar as it was based either on her sex or on her
supposed sexual orientation. We again review the law to
determine whether the officers should have known in
February 1994 that their actions were in violation of
applicable federal constitutional or statutory guarantees.

A. False Arrest and Malicious Prosecution

As noted above, Stemler brought a suit against the
defendants herein in the Boone County Circuit Court
alleging various state-law theories. The state court
awarded summary judgment to the defendants on April 2,
1996. The state court described the facts in relevant part
as follows:

Upon speaking to Stemler, Officer Wince noted
the odor of alcohol, conducted field sobriety tests,
administered a PBT test (which read .105), and
obtained an admission from Stemler that she had
consumed alcoholic beverages. Based upon the

above, Officer Wince decided to arrest Stemler
for DUI.

Stemler v. City of Florence, No. 94-CI-00459, slip op. at 2
(Boone Co., Ky., Cir. Ct. Apr. 2, 1996) (consolidated with
Chipman). The court reasoned that the evidence estab-
lished that there was probable cause to arrest her:

There are no genuinely disputed material facts
relating to the question of probable cause for the

App. 3U

arrest of the Plaintiff, Stemler. Stemler stated at
the scene that she had consumed alcohol, she
had the smell of alcohol on her person, her per-
formance on the field sobriety tests and her pre-
liminary breath test result of .105 certainly
constitutes [sic] probable cause.

Id. at 5. The state court then held that the existence of
probable cause precluded both the false arrest claim and
the malicious prosecution claim under Kentucky law.

Stemler is precluded from relitigating in this case the
issue of whether there was probable cause to arrest her to
the same extent that Kentucky would accord preclusive
effect to the judgment against her in her state court civil
suit. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465
U.S. 75, 82, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984); Allen v.
McCurry, 449 U.S. 90, 97, 66 L. Ed. 2d 308, 101 S. Ct. 411
(1980). Under Kentucky law, “when an issue of fact or
law is actually litigated and determined by a valid and
final judgment, and the determination is essential to the
judgment, the determination is conclusive in a subsequent
action between the parties, whether on the same or a
different claim.” Revenue Cabinet v. Samani, 757 S.W.2d
199, 202 (Ky. Ct. App. 1988) (quoting RESTATEMENT (SEC-
OND) OF JUDGMENTS § 27 (1980)). The issue of probable

> Stemler argues, without elaboration, that she did not receive a
fair hearing in the state court in her state-law civil suit. However, a
state court proceeding is accorded preclusive effect in a later § 1983 suit
so long as it meets minimal standards of due process. See Kremer uv.
Chemical Constr. Corp., 456 U.S. 461, 482, 72 L. Ed. 2d 262, 102 S. Ct.
1883 (1982); Osborn v. Ashland Bd. of Alcohol, Drug Addiction &
Mental Health Servs., 979 F.2d 1131, 1134 (6th Cir. 1992). Stemler does
not identify any reason to believe that she suffered a deprivation of due
process in the state court.

App. 31

cause for Stemler’s arrest was actually litigated and
decided in the state court suit, and was necessary to the
disposition of the case. Although Stemler’s appeal is
pending in that case, the pendency of an appeal does not
destroy the finality of the judgment for the purposes of
issue preclusion under Kentucky law. See Roberts v.
Wilcox, 805 S.W.2d 152, 153 (Ky. Ct. App. 1991). Thus, this
court is bound by the state court’s determination that
there was probable cause for Stemler’s arrest.

The existence of probable cause for Stemler’s arrest
forecloses her false arrest claim. A plaintiff bringing a
constitutional claim of false arrest under the Fourth
Amendment must show that there was not probable cause
for the arrest. See Donovan v. Thames, 105 F.3d 291, 298
(6th Cir. 1997) (applying Kentucky doctrine of collateral
estoppel).* Likewise, the existence of probable cause
would negate the possibility of liability under a state-law
malicious prosecution theory, and therefore under a
federal constitutional theory as well, at least to the extent
that Stemler alleges that the defendants sought to prose-
cute her despite knowing that there was not probable
cause to do so. See Baker v. McCollan, 443 U.S. 1387, 145,
oi L. Ed. 2d 433, 99 S. Ct. 2689 (1979); Coogan v. City of
Wixom, 820 F.2d 170, 175 (6th Cir. 1987).

“4 Because we affirm the dismissal of the false arrest claim on the
ground of collateral estoppel, we do not address the reasoning of the
district court, based on Albright v. Oliver, 510 U.S. 266, 127 L. Ed. 2d
114, 114 S. Ct. 807 (1994), that the right to be free from false arrest is
not clearly established. On remand, if in the interim Stemler should
secure a reversal on appeal of the judgment against her in her state-law
suit, thereby destroying the collateral estoppel effect of that judgment,
the district court should consider in the first instance whether Stem-
ler’s claim may proceed under the standard of qualified immunity that
we have set out in this opinion.

App. 32

Stemler, however, is not now asserting that sort of a
malicious prosecution claim. Instead, she asserts that even
if there were probable cause to prosecute her, Wince
committed a constitutional tort by falsifying evidence
against her. Under law that was clearly established in
1994, Wince would have violated Stemler’s right to due
process if he knowingly fabricated evidence against her,
and if there is a reasonable likelihood that the false
evidence could have affected the judgment of the jury. See
United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.
1989); see also Riley v. City of Montgomery, 104 F.3d 1247,
1253 (11th Cir. 1997); United States v. Epley, 52 F.3d 571,
576 (6th Cir. 1995); Grillo v. Coughlin, 31 F.3d 53, 56 (2d
Cir. 1994). A claim of fabrication of evidence does not
require a conclusion that the state did not have probable
cause to prosecute the claimant. The state court only
found that there was probable cause to prosecute Stemler,
and made no findings with regard to any claim of fabrica-
tion of evidence. Thus, since the state court in the civil suit
made no findings on this issue, and the court in the state
criminal case did not make any findings on this issue that
were necessary to the final judgment (i.e., Stemler’s
acquittal), she would not be estopped from pursuing this
claim.

B. Failure to Plead an Evidence-Tampering Theory

However, Stemler did not allege this alternative
theory in her complaint. The closest she comes to making
such an allegation is at paragraph 48 of her amended
complaint: “The Defendants, Officers Wince, Dolan,
Dusing and City of Florence, instituted and continued the
original criminal judicial proceeding against the Plaintiff
by insisting upon her prosecution and conviction despite

App. 33

their personal knowledge Plaintiff should not be so prose-
cuted.” This allegation cannot fairly be read to give notice
that she seeks to assert an evidence-tampering claim. The
record reflects that the evidence-tampering claim first
arose on May 7, 1996, in Stemler’s response to the city’s
motion for summary judgment, after the individual offi-
cers were dismissed from the suit.

It is well-settled that the parties may constructively
amend the complaint by agreeing, even implicitly, to
litigate fully an issue not raised in the original pleadings.
See 6A C. WRIGHT, A. MILLER & M. KANE, FEDERAL PRAC-
TICE AND PROCEDURE § 1493 at 19 (2d ed. 1990). However,
such a constructive amendment can have no effect upon a
party who has been dismissed from the action, and who is
not given notice that a new claim of liability has been
asserted against him. Stemler, of course, was free to seek
leave to amend her complaint again to raise her new
theory of falsification of evidence, or to file a new com-
plaint against Wince explicitly raising that claim. She did
not do so. The district court did not err in dismissing
Stemler’s complaint by failing to consider a cause of action
that she had not yet alleged. Consequently, this court is
powerless to engage in any further review of her allegation
that Wince falsified evidence against her in her criminal
trial.

C. Equal Protection

The defendants also assert that Stemler is collaterally
estopped from pursuing her equal protection claims.
However, the determination of probable cause does not
preclude a plaintiff from pursuing a claim that the state
chose to prosecute her due to invidious discrimination. The

App. 34

courts have long held that a selective enforcement claim
may be available even where there is probable cause for
prosecution. See Wayte v. United States, 470 U.S. 598, 607,
84 L. Ed. 2d 547, 105 S. Ct. 1524 (1985); Oyler v. Boles,
368 U.S. 448, 455-56, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962).
While we have held that the possibility of a discriminatory
motive does not affect the inquiry into the objective rea-
sonableness of an arrest for the purposes of the Fourth
Amendment, see United States v. Ferguson, 8 F.3d 385, 391
(6th Cir. 1993) (en banc), that case did nothing to question
the long-established availability of a separate selective
enforcement claim under the Equal Protection Clause. The
Supreme Court subsequently confirmed our interpretation
of the Fourth Amendment, and at the same time even
more explicitly re-confirmed the availability of an equal
protection claim despite the existence of probable cause:

We of course agree with petitioners that the Con-
stitution prohibits selective enforcement of the
law based on considerations such as race. But
the constitutional basis for objecting to inten-
tionally discriminatory application of laws is the
Equal Protection Clause, not the Fourth
Amendment.

Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89,
116 S. Ct. 1769 (1996). Stemler is not collaterally es-
topped, and we therefore proceed to the merits of Stemler’s
equal protection claims.

In order to state a claim of selective prosecution, a
plaintiff must demonstrate three elements:

First, [the state actor] must single out a person
belonging to an identifiable group, such as those
of a particular race or religion, or a group exer-
cising constitutional rights, for prosecution even

Se a ee ee ee

App. 35

though he has decided not to prosecute persons
not belonging to that group in similar situations.
Second, he must initiate the prosecution with a
discriminatory purpose. Finally, the prosecution
must have a discriminatory effect on the group
which the defendant belongs to.

United States v. Anderson, 923 F.2d 450, 453 (6th Cir.
1991) (citing Wayte, 470 U.S. at 608 n.10 & 609). With
regard to the first element, it is an absolute requirement
that the plaintiff make at least a prima facie showing that
similarly situated persons outside her category were not
prosecuted. See United States v. Armstrong, 517 U.S. 456,
134 L. Ed. 2d 687, 116 S. Ct. 1480, 1487 (1996). Further-
more, there is a strong presumption that the state actors
have properly discharged their official duties, and to
overcome that presumption the plaintiff must present
clear evidence to the contrary; “the standard is a demand-
ing one.” 116 S. Ct. at 1486.

We believe that this is the rare case in which a plain-
tiff has successfully stated a claim of selective prosecution.
Stemler’s complaint adequately alleges, and the record
evidence supports a finding, that the defendant officers
chose to arrest and prosecute her for driving under the
influence because they perceived her to be a lesbian, and
out of a desire to effectuate an animus against homosexu-
als. Each of the defendants was aware of Kritis’s assertion
that Stemler was a lesbian, and Dusing admitted that he
relied on Kritis’s version of the facts in deciding to arrest
Stemler. Furthermore, the record supports a finding that
Kritis was similarly situated to Stemler (or, indeed, far
drunker than she), that the defendant officers perceived
Kritis to be heterosexual, and that consequently they

App. 36

chose not to arrest him at the same time that they ar-
rested Stemler.

The defendants concede that Stemler’s complaint
alleges, and the record evidence could support a finding,
that they decided to arrest and prosecute her because they
perceived her to be a lesbian. They do not attempt to
assert any justification whatsoever for this decision;
instead they argue that as a blanket matter it is always
constitutional to discriminate on the basis of sexual
orientation, citing Bowers v. Hardwick, 478 U.S. 186, 92 L.
Ed. 2d 140, 106 S. Ct. 2841 (1986). However, Bowers held
only that there is no substantive due process right to
engage in homosexual sodomy, and expressly declined to
consider an equal protection claim. 478 U.S. at 196 n.8. It
is inconceivable that Bowers stands for the proposition
that the state may discriminate against individuals on the
basis of their sexual orientation solely out of animus to
that orientation: “‘If the constitutional conception of equal
protection of the laws means anything, it must at the very
least mean that a bare desire to harm a politically unpopu-
lar group cannot constitute a legitimate governmental
interest.’” Romer v. Evans, 517 U.S. 620, 134 L. Ed. 2d
855, 116 S. Ct. 1620, 1627 (1996) (quoting United States
Dep't of Agric. v. Moreno, 413 U.S. 528, 37 L. Ed. 2d 782,
93 S. Ct. 2821 (1973)) (internal quotation and ellipses
omitted). Stated differently, since governmental action
“must bear a rational relationship to a legitimate govern-
mental purpose,” Romer, 116 S. Ct. at 1629, and the desire
to effectuate one’s animus against homosexuals can never
be a legitimate governmental purpose, a state action based
on that animus alone violates the Equal Protection Clause.

While this case, and Romer, involved animus related
to sexual orientation, the principle involved in our case

App. 37

really has nothing to do with that controversial area.
Moreno, the case quoted in Romer, above, involved com-
mune residents; the principle would be the same if Stem-
ler had been arrested discriminatorily based -on her hair
color, her college bumper sticker (perhaps supporting an
out-of-state rival) or her affiliation with a disfavored
sorority or company. .

It may be objected that Romer was not decided until
after the defendants arrested and sought to prosecute
Stemler allegedly for the sole reason of animus against her
perceived sexual orientation. But it didn’t take Romer to
tell us that such arbitrary state action is contrary to the
principle of equal protection of the laws.” It is a venerable
rule under the Equal Protection Clause that the state may
not choose to enforce even facially neutral laws differently
against different portions of the citizenry solely out of an
arbitrary desire to discriminate against one group. See,
e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373, 30 L. Ed. 220, 6
S. Ct. 1064 (1886).

Furthermore, while a plaintiff in a_ selective-
prosecution case must demonstrate that she was prose-
cuted because she was the member of some group, and not
merely because the state actor prosecuted her out of
purely personal animosity, see Futernick v. Sumpter Twp.,
78 F.3d 1051, 1057 (6th Cir.), cert. denied, 117 S. Ct. 296
(1996), the availability of such a claim has never been
limited only to those groups accorded heightened scrutiny

‘* We need not discuss whether any other aspect of Romer’s holding
is sufficiently new that a state actor could not be expected to anticipate
it. The core principle relevant in this case, that the state may not act
solely out of the desire to harm an unpopular group, was clearly
established by the case law in 1994.

App. 38

under equal protection jurisprudence. See id. at 1056.
Instead, a plaintiff makes out a selective-enforcement
claim if she shows that the state based its enforcement
decision on an “arbitrary classification,” Oyler v. Boles, 368
U.S. 448, 456, 7 L. Ed. 2d 446, 82 S. Ct. 501 (1962), that is
to say, a classification that gives rise to-an inference that
the state “intended to accomplish some forbidden aim”
against that group through selective application of the
laws. Futernick, 78 F.3d at 1056. A selective-enforcement
claim such as this one is thus conceptually different from a
claim that a statute violates equal protection; while almost
every statute can be shown to have some conceivable
rational basis, thereby surviving an equal protection
challenge unless it is shown to discriminate against a
group accorded heightened scrutiny, it will often be diffi-
cult to find a rational basis for a truly discriminatory
application of a neutral law.

It is beyond cavil that Stemler has adequately alleged
a selective-enforcement claim here. The record supports a
finding that she was perceived to be a member of “an
identifiable group,” and that defendants sought to imple-
ment their animus against that group by arresting and
seeking to prosecute her. The defendant officers are
unable, and indeed have not even attempted, to demon-
strate that there is any conceivable rational basis for a
decision to enforce the drunk-driving laws against homo-
sexuals but not against heterosexuals. The defendants can
rely only on their assertion that discrimination on the
basis of sexual orientation should be accorded no scrutiny
whatsoever. We emphatically reject this assertion; the
proposition that the state may constitutionally discrimi-
nate by enforcing laws only against homosexuals (or
Centre College graduates or SAE members) is not now,

App. 39

and never has been, the law. Under the facts as we are
obligated to construe them, the defendants violated the
core principle of the Equal Protection Clause by choosing
to exercise the power of the state against Stemler solely
for the reason that they disapproved of her perceived
sexual orientation. Thus, the dismissal of her complaint
must be reversed.

V. Conclusion

With respect to both plaintiffs, the district court’s
award of summary judgment to the municipal defendants
and to the defendants in their official capacities is AF-
FIRMED. In No. 96-5996, the dismissal of Black’s com-
plaint against the individual officers is REVERSED. In
No. 96-5993, the dismissal of Stemler’s complaint against
the individual officers is REVERSED with respect to her
claim of denial of equal protection on the basis of sexual
orientation; in all other respects, the judgment of the
district court is AFFIRMED. Both cases are REMANDED
to the district court for further proceedings consistent with
this opinion.

CONCUR BY: HARRY W. WELLFORD
CONCUR: HARRY W. WELLFORD, Circuit Judge,

concurring. I concur in part II dealing with a conclusion of
no municipal liability and propriety of summary judgment
for the City and the County in this case. As to part I, I do
not necessarily subscribe to all of the findings made,
particularly as to subparts B and D. I do not think it
necessary to go into the detail recited by Judge Boggs to
rule on the orders granting qualified immunity to the
individual defendants.

App. 40

I also concur in parts IV.A and IV.B that “probable
cause for Stemler’s arrest forecloses her false arrest claim”
and that “probable cause would negate the possibility of
liability under a state-law malicious prosecution theory,”
or a false arrest claim. Also, I concur in the conclusion that
Stemler may not pursue further a claim that defendant
Wince falsified evidence against her in her state crirninal
trial.

As to part III, the claim on behalf of the deceased
Conni Black, I believe that the alleged conduct of the
individual police officers supports reversal of their motions
to dismiss. I do have reservations about concluding that
deliberate indifference may have been averred as a matter
of constitutional law, but I would agree with Judge Boggs
to the extent he maintains that “the defendants should
have known in February of 1994 that their [alleged]
actions violated [Black’s constitutional] right.”

I would not cite Nishiyama v. Dickson County, 814
F 2d 277 (6th Cir. 1987) (en banc), as persuasive authority
in this case. The individual defendants in that case had no
direct relationship of any kind with the victim. Further-
more, I am doubtful about the continuing authority of
Nishiyama, and I consider it settled in the Sixth Circuit
that gross negligence alone may not subject a police officer
to § 1983 liability absent a showing of willful disposition to
harm or to deliberately ignore the plight of the victim in
custody. Lewellen v. Metropolitan Gov't of Nashville &
Davidson County, 34 F.3d 345, 351 (6th Cir. 1994).

Lewellen also holds that liability of a state actor may
arise from some “action that is ‘arbitrary in the constitu-
tional sense.’” This is a higher standard than gross negli-
gence. Lewellen requires some designed and intentional

App. 41

activity on the part of the state actor to harm or punish
someone. Jd. And in this case, there was a sufficient
allegation of arbitrary conduct on the part of some defen-
dants intentionally designed to injure or punish Conni
Black. I would hold simply that Black’s estate has alleged
sufficient facts to survive a motion to dismiss and that we
should therefore reverse the contrary holding of the
district court and remand for further consideration of the
existence and proof of a constitutional tort. To put it
another way, the alleged conduct of certain individual
defendants may have been sufficiently shocking to the
conscience that the Black claim should not have been
dismissed against those defendants. See Collins v. City of
Harker Heights, 503 U.S. 115, 117 L. Ed. 2d 261, 112 S. Ct.
1061 (1992). I am, however, particularly reluctant to
expand upon the “highly elastic notion of substantive due
process.” Lewellen, 34 F.3d at 351.

I wholeheartedly agree with Judge Boggs’ conclusion
that “under any definition of the term, Black was in the
defendant officer’s custody at the time she was forced into
Kritis’ truck.” The district court erred, in my view, in
holding that Black, “who was very atoxicated ... was not
taken into custody in the ordinary sense.” I believe there is
adequate averment and showing that Black was effec-
tually taken into custody. The district court therefore
erred, I believe, in granting motions to dismiss as to the
individual defendants.

I next address part IV.C, Stemler’s remaining claims
against the individual officers based upon an alleged equal
protection violation, which Judge Boggs characterizes as
alleged selective prosecution. I cannot equate an alleged
animus against Stemler because of a perception about her
sexual proclivities with discrimination based upon race,

App. 42

sex, national origin, or the like.’ There may be enough
basis in Stemler’s claim that some individual defendants
based their law enforcement actions on some arbitrary and
capricious Classification or selectively enforced the laws on
drunken driving, public intoxication, or public endanger-
ment to warrant our reversing the dismissal of this claim.
However, I do not reach the categorical decision of Judge
Boggs that disapproval of Stemler’s perceived sexual
orientation was the sole, or even a significant, basis for her
arrest by the defendants, and that this action therefore
violated the equal protection clause.

The district court, upon remand, must also determine
the effect, if any, on the federal claims asserted in this case
of any future decision of the Kentucky Court of Appeals
concerning the individual claims of Stemler and on behalf
of Black. There is also the question whether plaintiffs
impermissibly split their causes of action in these cases.
They could have filed the § 1983 actions in state court. See
Kabealo v. Davis, 829 F. Supp. 923, 928 (S.D. Ohio 1993)
(splitting state claims from federal claims “would result in
a needless duplication of expense and judicial resources”);
Administaff, Inc. v. Kaster, 799 F. Supp. 685, 690 (W.D.
Tex. 1992) (“Federal and state claims ‘inexorably tied
together’ are best left together”).

I would affirm the decision of the district court as to
the municipal defendants, and as to defendants in their
official capacities. I would affirm dismissal of Stemler’s

* I believe Romer v. Evans, 517 U.S. 620, 134 L. Ed. 2d 855, 116 S.
Ct. 1620 (1996), simply holds that a statute purporting to deprive
homosexuals of any special protections under state law has no rational
relation to legitimate state government purposes. Furthermore, Romer
was decided long after these defendants acted in this case.

App. 43

claims of false arrest, malicious prosecution, and evidence
falsification. I would REVERSE and REMAND for
further proceedings and consideration of alleged federal
constitutional torts in light of the decision set out herein,
and in light of the Kentucky appellate decision on the
remaining claims.”

? TI also note the death of the Boone County Sheriff.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1695%3A2. Public record. Not legal advice.