Академический Документы
Профессиональный Документы
Культура Документы
_________________________
No. 95-2125
v.
No. 95-2126
v.
CITY OF BOSTON,
Defendant, Appellant.
_________________________
Before
Michael Avery,
_____________
with
was
on
Corporation
Counsel,
was
on
brief,
for
defendants.
_________________________
SELYA,
SELYA,
Circuit Judge.
Circuit Judge.
These appeals
require us
to
_____________
claim
that a
antithetical
aspect of
police
to
the
pursuit has
been
protections
afforded
Clause.
conducted in
by the
its police
suspected
officers after
youthful pedestrian,
officers
Marie Evans.
The
substantive
in the
of Boston and
driven by
direction of a verdict
in favor of Evans'
district court
City.
verdict
a motor vehicle
manner
the
two of
resolve a
now appeals
in favor of the
of summary judgment
took
police
in favor of
parents on a
claim.
I.
I.
BACKGROUND
BACKGROUND
We assess
favorable
the
facts
to the plaintiffs.
Partnership
___________
of
in
the
light
most
1991) (elucidating
record
standard of
review
for directed
verdicts);
Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (same
_______
_______________
re
summary judgments).
No
further elaboration of
the facts is
The events
twinkling
of an eye.
1992, officers
At approximately 6:00
Terrace Avery
and John J.
occurred in the
Greene were
cruising
through a
Boston.
Nixon
and
Centre Streets:
startled at their
an
Dorchester section of
individual
who appeared
the
threw a paper
to be
bag
and detain
He
the
its occupants.
Oldsmobile,
and activated
his
siren
and wig-wag
took up the
When
the
chase in
officers
earnest, travelling at
observed
the occupants
out after
lights.
The officers
roughly 45
of
the
m.p.h.
Oldsmobile
a jug back
and
evidence.
intersection at
which Centre
passed three
Codman Square
a complex
Norfolk St.,
cars waiting
at a
red light,
as fast
and turned
as 50 m.p.h.
The
left on
officers
remained
close
Square, the
behind.
Approximately 300
feet
Avery alighted
of the
to assist the
Oldsmobile.
Codman
from
victim.
Greene stopped
Greene
The entire
then
incident
The plaintiffs'
at
the
about.
time of
the chase
and
that numerous
pedestrians were
populated residential
area.
They
also
was heavy
knew that
to a densely
Centre
St.
officers pursuant to 42
she and her parents, Muriel and Billy Evans, sued the
Mass.
U.S.C.
(1988).1
City under
section
1983 claim.
____________________
Public
employers
shall
be liable
for
within
employment,
same
extent
like
the scope
in
of
the same
as a
shall
his office
manner and
private
circumstances,
employers
wrongful
to the
individual under
except
not be
that
liable
public
. .
one
hundred
remedies
thousand
provided by
of
any
proceeding
by
reason
matter
against the
public
employee .
wrongful act
and no
shall
be liable
by his
while
civil
excess
The
shall be
action
or
same
subject
public employer
or, the
of the
whose negligent
or omission gave
claim,
property or
other
for
dollars.
this chapter
exclusive
or
such
rise to
public employee
for any
injury or
personal injury or
or
such
. .
loss of
death caused
or employment; . . . .
2 (1988).
policy or
City.
The
parties
magistrate judge.
73(a).
At the
thereafter
See 28 U.S.C.
___
consented
attributable to the
to
trial before
court (Collings,
U.S.M.J.) took the remaining section 1983 claim from the jury and
granted
and
each of
F. Supp. 21 (D.
in
the amount
matter of law.
Mass. 1995).
her parents
claimant maximum
judgment as a
of
The
jury
damages to Evans
$100,000 (the
per
note 1).
II.
II.
directing
court erred in
alternative, that the court applied the wrong legal standard, and
jury question
as to whether
violated her
person
who, under
rights secured by
mishap involved
nor
Amendment
and it
state
the Constitution
neither physical
police action
seizure
color of
directed at
was therefore
rights.
See Brower
___ ______
law, deprives
or by federal
contact with a
her.
not in
In
another of
law.
Evans'
police officer
short, it
derogation of
was not
her Fourth
596-97
(1989) (distinguishing
toward
producing
cause
a particular
happens
to
an
holding
between
result
unintended, if
police
and
action
directed
police action
foreseeable,
result
that
and
("It is
basis
for
outside the
that
Fourth
context of
a person
prosecute
Amendment claim.").
injured
a substantive
a seizure, appellate
as a
result
due process
Nevertheless,
even
courts have
noted
of police
claim under
misconduct
may
section 1983.
F.2d 1398, 1408 n.10 (9th Cir. 1989), cert. denied, 494 U.S. 1016
_____ ______
(1990);
see
___
also
____
proposition).
the
Landol-Rivera,
_____________
The initial
legal standard
by
906
F.2d
at
796
which the
officers'
(assuming
us concerns
conduct should
be
We begin
Rivera
______
pursuit
we ruled
of
substantive
a hostage.
id.
at
historical perspective.
that police
suspect
could
officers who
not
be
held
In Landol_______
were engaged
liable
in hot
under
the
906 F.2d
determination
reckless
with an
that
the
at 798.
We
officers'
or callous indifference
796-98.
Two
things
premised that
conduct did
not
to the hostage's
about
this
ruling on
reflect
rights.
See
___
articulation of
the
___
our
are noteworthy.
In the first
place,
ground,
but,
application
rather,
reflected
fairly
straightforward
callous
indifference to
to
an individual's rights is
triggering the
substantive
Clause.
did
presume to
not
applicable
to
danger cases;
a necessary predicate
protections of
the Due
Process
undertake a
substantive due
full
process
formulation of
claims
the test
in creation
of
After
this court
decided Landol-Rivera,
_____________
the Justices
the
sanitation
widow
of
an
asphyxiated
In that case,
department
employee
____________________
2Our decision
in Germany
_______
responded to the
Supreme Court's
invitation in Daniels v.
_______
substantive protections of
open
the question
of
whether something
There,
to implicate
less than
intentional
See id. at
___ ___
334 n.3.
1989), we
claim
under
There, four
upheld a
section 1983
the "reckless
or
callous
Gutierrez-Rodriguez tried
___________________
decision for
and
approached a car
"reckless
process
indifference" standard.
in
substantive due
callous
the
case on
indifference"
Because
opened fire
the parties
the assumption
constituted the
of
and
events,
the
exhibited
that
rule
whether
behavior
car and
by the
police
in
In all
Gutierrez__________
be free from
emotions
unreasonable risks
and a
constitutional
of harm to
right to
be protected
to
and
from the
safety of
Id.
___
its employees."
reluctance "to
expand the
at 117.
Noting
concept of substantive
its traditional
due process,"
___
indifference"
claim to
include an
additional element,
namely,
of
federal
judges."
standard when
constitutional
as
The Court
reiterated this
characterized
126.
it determined that
due
Id. at
___
arbitrary,
sense."
Id.
___
or
conscience'
conscience
at 128.
failure to
a substantive
shocking,
Rather, the
in
Court held
tort claim,"
that
the
Due Process
Clause
it had "previously
should be
rejected claims
interpreted
to impose
Id.
___
circuits,
faced
substantive
creation
of
conscience"
due
with
the
process
danger,
decided in 1992,
need
claims
have held
rubric furnishes
to
construct a
arising
out
squarely
that
the appropriate
two of our
sister
template
of
the
state's
the "shock
test.
for
the
The Third
Circuit,
sitting
pursuit case.
07
en banc,
this standard
in
a police
unanimous
adopted
adherence
to
the
light of
`shocks the
conscience'
test
in
of government employees is an
insufficient
basis upon
factual
context, the
proposition
that
substantive due
See Uhlrig v.
___ ______
the
which to
Tenth Circuit
"shock
the
relied
a different
on Collins
_______
conscience"
In
for a
test
for the
governs
of danger cases.
cert.
_____
denied
______
116 S.
courts of
Ct. 924
(1996).
Moreover,
at least
two other
(and
F.2d
Cir. 1991),
716, 723
(4th
cert.
_____
denied, 502
______
U.S.
(1992); Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986).
______
____
1095
To be
and
the
conscience"
Ninth
test,
Circuit
Collins
_______
577835 at
recently
rejected
notwithstanding.
F.3d ___,
the
See
___
"shock
the
Lewis
_____
v.
1996) [1996
WL
indifference or reckless
disregard
1983 claim in
We
this is correct.4
that
deliberate indifference
police
rights,
officers'
standing alone,
is
not a
Accordingly,
sufficient
to
we hold
victim's
predicate for
substantive
in such a
for
creation
Collins,
_______
police
of
danger
we add that
pursuits
cases
way.
under the
it is particularly
in that
Rather,
Police
fairest
reading
of
appropriate to measure
chases
are not
only a
but
they
inevitably
create
some
hazardous.
risk
of
By
injury
to
bystanders.
Officers must decide the balance between law enforcement and risk
to public
as a surrogate
the police in
We
think,
moreover,
As
that
standard
is
not
in Landol-Rivera, a plaintiff
_____________
police
this
officers' deliberate
is still required
indifference
to his
to show the
rights.
The
____________________
maintain
section
1983 substantive
due
10
process
action.
no
occasion to
path.5
speed
further hurdle
blocked his
police pursuit
protections,
the
to
intrude upon
officers'
conduct
substantive due
must
not
only
process
manifest
not tarry.
salutary
to
conscience"
more
than
vehicles'
cause
Evans'
test.
case,
does
The chase
two minutes.
satisfy
was brief in
It
Evans is
not
"shock
the
half
a mile.
The
bereft of
occurred in a densely
the
duration, lasting no
covered about
Though
not
talking
points
the
pursuit
time when
____________________
Evans
circumstances we
would not
be
helped.
While under
lead,
1989)
(explaining
that
v. Zayas, 875
_____
in
ordinary
a predecessor panel's
F.2d 986,
multi-panel
circuit,
newly
point), there is
a well-recognized exception
to the
rule for
situations
in which
a panel
opinion is
63 F.3d 71,
Campbell, 863
________
v.
Jones, 115
_____
74 (1st Cir.
F.2d 124 (1st
S. Ct.
2151
undercut by
1995) (refusing
Cir. 1988),
to follow
in light
of
United
______
If Landol-Rivera
_____________
in Collins
_______
would require us
exception here.
11
to invoke
the
people
seriously consider
taken
alternatives to
most favorably to
hot pursuit
Evans, add up to
these points,
negligence.
not believe
that
apparent
during
either the
perpetrators
the chase
of a
officers' decision
serious
were so raw
as to
offense
shock the
to pursue
or their
the
actions
conscience of a
reasonable factfinder.
comparison of
the facts
cases in which
of this
case to
those of
has
80
m.p.h.
1299-1300.
of gasoline
at speeds
pursued vehicle
that
the officer's
not
standard.
Id. at
___
conduct,
the
narrow, two-lane
cruiser and
The Fourth
"while disturbing
transgress
723.
on a
did
and
105 m.p.h.
result that
judgment,"
cases
up to
"shock
The actions of
Circuit held
and lacking
the
the
in
conscience"
the officers
in those
Greene.
Although the
"shock the
conscience" test
is not
and
To
12
guides our decision, and the conduct of officers Avery and Greene
when measured
to
manifestly insufficient
III.
We therefore reject
III.
Evans
next argues
that
City of Boston.
indifference
monitor
to individual
police pursuits
rights both
and
As we
exhibited deliberate
through its
in such
in
against the
through its
failure to
failure to
pursuits.
respects.
court erred
Evans'
the district
We
supervise
need not
probe
Greene
This
decision in
(per curiam).
result
is
compelled
by
the
Supreme
Court's
for making an
cause;
he
Angeles, for
also sued
the officer's
employer,
the City
of Los
court
probable
of appeals
gendarme but
order of
13
dismissed the
reversed the
The jury
part of
the
city.
The
dismissal but
did not
disturb
the
judgment that
favor.
See
___
Heller v.
______
1985).
had
been entered
Bushey, 759
______
in
F.2d 1371,
the officer's
1376
authorize[d]
the award of
damages against a
that
constitutional
suffered
hands
no
the
officer
harm.
If
constitutional
of the individual
inflicted
no
person
has
injury
at
the
(9th Cir.
use of
regulations might
constitutionally
While Heller
______
that
a municipality cannot be
inadequate public
the
safety policy in
officers whose
exonerated at trial,
for determining
a situation where,
we note that a
1983 for an
the harm
panel of the
as here,
have been
Third Circuit
In Fagan
_____
the
out of
a police pursuit,
Constitution."
if no
an underlying constitutional
individual police
Id. at 1292.6
___
tort can
officer violated
the
city would be
____________________
22 F.3d 1296, it did not review this aspect of the panel opinion.
14
implemented a policy
to conduct an
unsafe
pursuit.
Id.
___
Evans invites us
issues
us to separate
when
1983 claim
harm
constitutional
whether
the
was
violation,
city
is
two
(1) whether
caused
and
is
(2)
responsible
by
if
so,
for that
violation.
Collins,
_______
503 U.S.
"deliberate
municipal
at
120.
indifference" test
liability,
indifference"
22
F.3d
The
Fagan
_____
panel
described
the
as
a "different
theor[y]"
for
at
1292,
but
the
"deliberate
deliberate indifference
is merely an articulation
Rather,
of the second
prong of the
cases.
In treating it
as a
to "policy and
separate theory,
the
plaintiff's harm
See
___
Thompson v.
________
be caused
Boggs, 33 F.3d
_____
by a
custom"
the Fagan
_____
panel
constitutional violation.
847, 859
n.11 (7th
Cir. 1994)
115
F.3d
1137,
1153
n.13
165 (1995).
that the
(3d
Cir.)
(questioning
the
analysis
S. Ct.
City
cannot be
held
liable absent
constitutional
15
violation
by its officers.
F.2d 447, 449 (1st Cir.), cert. denied, 493 U.S. 850 (1989).
_____ ______
IV.
IV.
THE CROSS-APPEAL
THE CROSS-APPEAL
of
consortium in favor of
parents).
jury instruction.
We
objection,
limited
frame the
the lower
the damages
$100,000.
See
___
instruction was
jury
assignment of
that
supra
_____
could be
note
1.
to decide the
could
severe
not fully
injuries
jury that
awarded
The
Over the
on each
City
argues
amount of damages
it
error.
compensate
and
City's
state law
claim
to
that this
it "caused the
on emotion."
The City's
Marie Evans
therefore
decided
for
to
her extremely
circumvent
the
as possible.7
This
asseveration
Massachusetts statute
an
lacks
merit.
Neither
the
it prohibit such
abuses its
____________________
as $2,000,000.
awarded her
$100,000.
The
verdict.
16
City
has not
appealed
that
discretion
To
by informing a jury
of a statutory
abuse its
limit.
(Ark.
the proposition
discretion in refusing
See, e.g.,
___ ____
1984); State
_____
cap on damages.8
that a trial
court does
to inform the
Thompson
________
v. Sanford,
_______
v. Bouras,
______
423 N.E.2d
jury of such
663 S.W.2d
741, 744
not
932, 935
(Ind. App.
1981).
The wisdom
limitation is
Still,
of telling
debatable, and we
we customarily
92
F.3d
1271,
such a
do not recommend
Houlihan,
a jury about
statutory
the practice.
to trial
courts to
1299
n.31
(1st
Cir. 1966);
Putnam
________
Resources
_________
______
case at hand.
supported by
evidence in the
evidence
has
properly
instructing
magistrate
been
record
contradicted.
told them
the
jurors
that "[t]he
be judged separately."
and
almost none
For
another
on loss
of
claims for
of this
thing,
after
consortium,
Muriel and
the
Billy
to
____________________
8This
counsel to do so.
due
to
See id.
___ ___
a violation
Massachusetts
of
1981a(c)(2)).
trial
Here, the
17
instructions,
see Houlihan,
___ ________
92 F.3d at
not
justification
offered
sufficient
for
overcoming
this
presumption.
In
the last
claim that
the
mere mention of the statutory cap inspired the jury to ignore the
charge
and
instead
do
rough
remedial
justice
is
wholly
speculative.
V.
V.
CONCLUSION
CONCLUSION
We need go
no further.
In a police pursuit
case not
of
conscience.
conscience-shocking
Greene.
Section 1983
conduct on
the
part of
the result of
officers Avery
or
them
Affirmed.
Affirmed.
________
____________________
Commonwealth
be answered according
of
Massachusetts
we must
legitimate province.
to
The questions
result
to determine as a matter of
has
and, though
to that body
chosen to
provide
recognize the
It is not the
of law.
a very
state's suzerainty
The
only
harsh
in its
force state tort law into unfamiliar contours under the guise
of constitutional interpretation.
18