USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 95-2125

MARIE EVANS, p.p.a. MURIEL EVANS,

Plaintiff, Appellant,

v.

TERRACE AVERY, ET AL.,

Defendants, Appellees.
_________________________

No. 95-2126

MURIEL EVANS AND BILLY EVANS,

Plaintiffs, Appellees,

v.

CITY OF BOSTON,
Defendant, Appellant.
_________________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

___________________
[Hon. Robert B. Collings, U.S. Magistrate Judge]
_____________________
_________________________

Before

Selya, Circuit Judge,

_____________
Campbell, Senior Circuit Judge,
____________________
and Boyle,* Senior District Judge.
_____________________
_________________________

Michael Avery,
_____________

with

whom Perkins, Smith & Cohen

________________________

was

on

brief, for plaintiffs.

Kevin S. McDermott, Assistant Corporation Counsel, with whom

__________________
Merita A. Hopkins,
___________________

Corporation

Counsel,

was

on

brief,

for

defendants.

_________________________

November 20, 1996

_________________________
_______________
*Of the District of Rhode Island, sitting by designation.

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.

These appeals

require us

to

_____________

revisit the legal standard

claim

that a

antithetical

aspect of

police

to

the

which courts must apply to

pursuit has

been

protections

afforded

the Due Process

Clause.

conducted in

by the

its police

suspected

officers after

youthful pedestrian,

both the court's

officers

Marie Evans.

The

substantive

in the

of Boston and

driven by

direction of a verdict

At the same time,

in favor of Evans'

district court

from the jury, and Evans

and its earlier grant

City.

verdict

a motor vehicle

manner

drug dealer fleeing from the police struck and injured

Evans' civil rights claims

the

The question arises

context of a civil action brought against the City

two of

resolve a

now appeals

in favor of the

of summary judgment

took

police

in favor of

the City cross-appeals from a jury

parents on a

related state-law tort

claim.

I.
I.

We affirm the judgment below in all respects.

BACKGROUND
BACKGROUND

We assess

favorable

the

facts

to the plaintiffs.

Partnership
___________

of

in

the

light

most

See, e.g., Veranda Beach Club Ltd.

___ ____ _______________________

v. Western Sur. Co.,

________________

1991) (elucidating

record

standard of

936 F.2d 1364,

review

1375 (1st Cir.

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

needed for disposition of the cross-appeal.

The events

twinkling

of an eye.

1992, officers

that fomented this lawsuit

At approximately 6:00

Terrace Avery

and John J.

occurred in the

p.m. on August 12,

Greene were

cruising

through a

Boston.

Nixon

residential neighborhood in the

They spotted suspicious

and

Centre Streets:

startled at their

an

Dorchester section of

activity at the intersection of

individual

who appeared

presence yelled excitedly,

through the open window of a parked Oldsmobile,

the

front passenger seat.

threw a paper

to be

bag

and vaulted into

The driver immediately headed west on

Centre St. at 20-25 m.p.h.

Greene decided to stop the automobile

and detain

He

the

its occupants.

Oldsmobile,

executed a U-turn, set

and activated

his

siren

and wig-wag

Instead of stopping, the suspects' car accelerated.

took up the

When

the

chase in

officers

earnest, travelling at

observed

placing small items in

the occupants

out after

lights.

The officers

roughly 45

of

their mouths and passing

the

m.p.h.

Oldsmobile

a jug back

and

forth, they concluded that the suspects were swallowing potential

evidence.

As the Oldsmobile approached

intersection at

which Centre

and Talbot Ave. meet

passed three

Codman Square

St., Washington St.,

a complex

Norfolk St.,

it crossed to the wrong side of the road,

cars waiting

Washington St., travelling

at a

red light,

as fast

and turned

as 50 m.p.h.

The

left on

officers

remained

close

Square, the

behind.

Approximately 300

suspects' vehicle struck a

feet

Avery alighted

continued his pursuit

of the

to assist the

Oldsmobile.

lasted no more than two minutes.

Codman

ten-year-old girl, Marie

Evans, who was attempting to cross Washington St.

his car and

from

victim.

Greene stopped

Greene

The entire

then

incident

The plaintiffs'

at

the

about.

time of

evidence shows that traffic

the chase

Both Greene and

and

that numerous

Avery were familiar

pedestrians were

with Codman Square

and knew that it was a busy shopping venue adjacent

populated residential

area.

They

also

was heavy

knew that

to a densely

Centre

St.

affords limited visibility of the Codman Square intersection.

Marie Evans sued the

1983 (1994); she sued the City

officers pursuant to 42

pursuant to the same statute; and

she and her parents, Muriel and Billy Evans, sued the

Mass.

Gen. L. ch. 258,

U.S.C.

(1988).1

City under

The district court (Young,

U.S.D.J.) granted summary judgment in favor of the City on Evans'

section

1983 claim.

____________________

Ruling ore tenus, the court determined that

___ _____

1The statute provides in relevant part:

Public

employers

shall

be liable

for

injury or loss of property or personal injury

or death caused by the negligent or
act or omission of
acting

within

employment,
same

extent

like

any public employee while

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
. .

punitive damages or for any amount in

of

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

negligent or wrongful act or omission

acting within the

or employment; . . . .

Mass. Gen. L. ch. 258,

2 (1988).

scope of his office

the plaintiff had failed to adduce evidence sufficient to prove a

policy or

City.

custom of deliberate indifference

The

parties

magistrate judge.

73(a).

At the

thereafter

See 28 U.S.C.
___

consented

attributable to the

to

trial before

636(c) (1994); Fed. R. Civ. P.

conclusion of the evidence, the

court (Collings,

U.S.M.J.) took the remaining section 1983 claim from the jury and

granted

the officers' motions for

See Evans v. Avery, 897

___ _____
_____

then considered the

and

each of

F. Supp. 21 (D.

in

the amount

allowable under state

matter of law.

Mass. 1995).

pendent claims and awarded

her parents

claimant maximum

judgment as a

of

The

jury

damages to Evans

$100,000 (the

law, see supra

___ _____

per

note 1).

These appeals followed.

II.
II.

THE SECTION 1983 CLAIM AGAINST THE OFFICERS

THE SECTION 1983 CLAIM AGAINST THE OFFICERS

Marie Evans asserts that the nisi prius

directing

a verdict for the police officers.

court erred in

She argues, in the

alternative, that the court applied the wrong legal standard, and

that, whatever legal standard obtains, the evidence established a

jury question

as to whether

the officers' conduct

right to substantive due process.

violated her

Section 1983 supplies a private right of action against

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

v. County of Inyo, 489 U.S. 593,

_______________

596-97

(1989) (distinguishing

toward

producing

cause

a particular

happens

to

an

holding

that only the former

between

result

unintended, if

Rivera v. Cruz Cosme, 906

______
__________

police

and

action

directed

police action

foreseeable,

result

that

and

can constitute a seizure); Landol_______

F.2d 791, 796 (1st Cir. 1990)

("It is

intervention directed at a specific individual that furnishes the

basis

for

outside the

that

Fourth

context of

a person

prosecute

Amendment claim.").

injured

a substantive

a seizure, appellate

as a

result

due process

See, e.g., Sinaloa Lake Owners Ass'n v.

___ ____ _________________________

Nevertheless,

even

courts have

noted

of police

claim under

misconduct

may

section 1983.

City of Simi Valley, 882

___________________

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

question that confronts

which the

officers'

(assuming

us concerns

conduct should

be

judged in such instances.

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

aspect of the Due Process Clause for the shooting of

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

___

applicable legal standard

our

are noteworthy.

In the first

place,

use of the "deliberate indifference" test did not broach new

ground,

but,

application

rather,

reflected

fairly

straightforward

of our earlier holding in Germany v. Vance, 868 F.2d

_______
_____

9 (1st Cir. 1989), in

which we posited that reckless or

callous

indifference to

to

an individual's rights is

triggering the

substantive

Clause.

See id. at 17-19.2

___ ___

did

presume to

not

applicable

to

danger cases;

a necessary predicate

protections of

the Due

Process

In the second place, Landol-Rivera

_____________

undertake a

substantive due

full

process

formulation of

claims

instead, the court went only

the test

in creation

of

as far as was needed

to show the infirmity of the particular claim before it.3

After

this court

decided Landol-Rivera,
_____________

the Justices

revisited the jurisprudence of substantive due process in Collins

_______

v. City of Harker Heights, 503

_______________________

U.S. 115 (1992).

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.
_______

Williams, 474 U.S. 327 (1986).

________

the Court held that mere negligence is insufficient

the

substantive protections of

open

the question

of

the Due Process

whether something

There,

to implicate

Clause but left

less than

intentional

conduct might be enough to trigger those protections.

See id. at
___ ___

334 n.3.

3In Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 582 (1st

___________________
_________
Cir.

1989), we

claim

under

There, four

upheld a

section 1983

the "reckless

or

callous

When the swain saw

See id. at 557.

___ ___

Gutierrez-Rodriguez tried
___________________

decision for

the view at a secluded spot.

Without warning, the officers

and severely injured him.

and

approached a car

the unidentified men, he started his

began to drive away.

"reckless

process

indifference" standard.

armed plainclothes police officers

occupied by a young couple admiring

in

substantive due

callous

the

case on

indifference"

section 1983 substantive

argued in the same vein on appeal

Because

opened fire

the parties

the assumption

constituted the

due process claims

of

and

we had no occasion to address

anything beyond that standard might be required.

events,

the

exhibited

that

rule

whether

behavior

car and

by the

police

in

In all

Gutierrez__________

Rodriguez would shock even an unusually jaded conscience.

_________

claimed that her deceased husband had "a constitutional right

be free from

emotions

unreasonable risks

and a

constitutional

of harm to

right to

his body, mind

be protected

to

and

from the

[city's] custom and policy

of deliberate indifference toward the

safety of

Id.
___

its employees."

reluctance "to

expand the

at 117.

Noting

concept of substantive

its traditional

due process,"

id. at 125, the Court recharacterized the plaintiff's "deliberate

___

indifference"

claim to

include an

additional element,

namely,

"that the city's `deliberate indifference' to Collins' safety was

arbitrary government action that . . . `shock[s] the

of

federal

judges."

standard when

constitutional

as

The Court

reiterated this

the city's alleged

employees was not actionable as

process violation because

characterized

126.

it determined that

train or warn its

due

Id. at
___

arbitrary,

sense."

Id.
___

the city's conduct

or

conscience'

conscience

at 128.

failure to

a substantive

could not "be

shocking,

Rather, the

in

Court held

petitioner's claim to be "analogous to a fairly typical state-law

tort claim,"

that

the

and noted that

Due Process

Clause

it had "previously

should be

rejected claims

interpreted

to impose

federal duties that are

by state tort law."

analogous to those traditionally imposed

Id.
___

Since Collins was

_______

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

See Fagan v. City of Vineland, 22 F.3d 1296, 1306___ _____

________________

(3d Cir. 1994)

unanimous

adopted

(en banc) ("In

adherence

to

the

light of

`shocks the

the Supreme Court's

conscience'

test

in

Collins, the reckless indifference

_______

of government employees is an

insufficient

ground their liability

basis upon

police pursuit under the

factual

context, the

proposition

that

substantive due

See Uhlrig v.
___ ______

the

which to

Due Process Clause.").

Tenth Circuit

"shock

the

relied

a different

on Collins
_______

conscience"

process claims in all creation

Harder, 64 F.3d 567,

______

In

for a

test

for the

governs

of danger cases.

571 (10th Cir. 1995),

cert.
_____

denied
______

116 S.

courts of

Ct. 924

(1996).

Moreover,

at least

appeals, anticipating Collins, adopted

_______

conscience" standard in police pursuit

two other

the "shock the

cases prior to 1992

(and

still adhere to it).

See Temkin v. Frederick County Comm'rs, 945

___ ______
________________________

F.2d

Cir. 1991),

716, 723

(4th

cert.
_____

denied, 502
______

U.S.

(1992); Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986).
______
____

sure, the position taken by

1095

To be

these courts is not uncontroversial.

Judge Cowen wrote a vociferous dissent in Fagan, 22 F.3d at 1309,

_____

and

the

conscience"

Ninth

test,

Circuit

Collins
_______

Sacramento County, ___

_________________

577835 at

recently

rejected

notwithstanding.

F.3d ___,

___ (9th Cir.

*5] (holding that deliberate

the

See
___

"shock

the

Lewis
_____

v.

1996) [1996

WL

indifference or reckless

disregard

"is the minimum required to sustain

1983 claim in

the context of a high-speed police pursuit").

We

are persuaded that the majority view of the minimum

threshold in cases like

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

due process claim in a police pursuit case.

case, the plaintiff must also show

conduct shocks the conscience.

for

creation

Collins,
_______

police

of

danger

we add that

pursuits

cases

way.

that the officers'

Though that benchmark is mandated

under the

it is particularly

in that

Rather,

Police

fairest

reading

of

appropriate to measure

chases

are not

only a

necessary concomitant of maintaining order in our modern society,

but

they

they are also inherently

inevitably

create

some

hazardous.

risk

of

By

their very nature,

injury

to

bystanders.

Officers must decide the balance between law enforcement and risk

to public

safety quickly and while

under considerable pressure.

In such circumstances, permitting the Due Process Clause to serve

as a surrogate

for state tort law would hamstring

the police in

their performance of vital duties.

We

think,

moreover,

inconsistent with, but is

As

that

standard

is

not

merely a refinement of, Landol-Rivera.

_____________

in Landol-Rivera, a plaintiff
_____________

police

this

officers' deliberate

is still required

indifference

to his

to show the

rights.

The

plaintiff in Landol-Rivera could not clear this hurdle, so we had

_____________

____________________

4We refuse to follow Lewis because we believe that the panel

_____

paid insufficient attention both to Collins and to the legitimate

_______
demands of law enforcement when it

asserted, without engaging in

any analysis, that "deliberate indifference is always sufficient"

to

maintain

section

1983 substantive

due

Lewis, ___ F.3d at ___ [1996 WL 577835 at *5].

_____

10

process

action.

no

occasion to

path.5

speed

explore whether any

further hurdle

blocked his

Today, we move forward and hold that in order for a high-

police pursuit

protections,

the

to

intrude upon

officers'

deliberate indifference to the

conduct

substantive due

must

not

only

process

manifest

plaintiff's rights, but must also

shock the conscience.

Having clarified the applicable legal standard, we need

not tarry.

The evidence of record here, taken in the light most

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

The officers had good

suspects were trafficking in cocaine.

bereft of

occurred in a densely

the

duration, lasting no

covered about

speeds never exceeded 50 m.p.h.

to believe that the

Though

not

talking

points

the

populated residential area at a

pursuit

time when

____________________

5Even if, as Evans

urges, Landol-Rivera announced a broadly

_____________

applicable rule to the effect that deliberate indifference is the

be-all in creation of danger cases
accept

Evans

circumstances we

would not

be

a proposition that we do not

helped.

While under

would be bound to follow

lead,

see, e.g., Jusino

___ ____ ______

1989)

(explaining

that

v. Zayas, 875
_____
in

ordinary

a predecessor panel's

F.2d 986,

multi-panel

993 (1st Cir.

circuit,

newly

constituted panels customarily are bound by prior panel decisions

closely in

point), there is

a well-recognized exception

to the

rule for

situations

in which

a panel

opinion is

controlling authority, subsequently announced.

v. Kelley,
______
Unwin v.
_____
Johnson
_______

63 F.3d 71,
Campbell, 863
________

v.

Jones, 115
_____

Bucuvalas, 909 F.2d 593,

_________
States v.
______

74 (1st Cir.
F.2d 124 (1st
S. Ct.

2151

undercut by

See, e.g., Stella

___ ____ ______

1995) (refusing
Cir. 1988),

to follow

in light

of

(1995)); United States v.

______________

594 (1st Cir. 1990) (overruling

United
______

Bosch Morales, 677 F.2d 1 (1st Cir. 1982), in light of

_____________

United States v. Powell,

_____________
______

469 U.S. 57 (1984)).

If Landol-Rivera
_____________

were to be read in the manner urged by Evans, the Supreme Court's

subsequent decision

in Collins
_______

would require us

exception here.

11

to invoke

the

people

would likely be ambling

seriously consider

taken

about, and the

alternatives to

most favorably to

officers did not

hot pursuit

Evans, add up to

these points,

no more than possible

negligence.

Considering the totality of the circumstances, we do

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

other police pursuit

been held not

the facts

cases in which

to shock the conscience

of this

case to

those of

the officers' behavior

has

fortifies our conclusion.

For example, Fagan involved a lengthy pursuit at speeds up to

_____

80

m.p.h.

through a plethora of red lights.

1299-1300.

See Fagan, 22 F.3d at

___ _____

Similarly, Temkin, 945 F.2d at 718, involved a police

______

officer who pursued an individual suspected of stealing $17 worth

of gasoline

at speeds

highway, with the

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

both the police

struck the plaintiff.

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

were far more egregious than the actions of officers Avery

Greene.

Although the

"shock the

conscience" test

mathematically precise, the imprecision occurs at the edges

this case, fairly viewed, does not present a close call.

is not

and

To

sum up, "shock the conscience" is the standard that

12

guides our decision, and the conduct of officers Avery and Greene

when measured

to

against that benchmark is

manifestly insufficient

support a substantive due process claim.

Marie Evans' principal assignment of error.

III.

THE SECTION 1983 CLAIM AGAINST THE CITY

We therefore reject

III.

THE SECTION 1983 CLAIM AGAINST THE CITY

Evans

next argues

that

granting summary judgment on

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.

charge that the City's policies

respects.

court erred

her section 1983 claim

She asserts that the City

police officers involved

Evans'

the district

We

supervise

need not

probe

were inadequate in these

explain below, the fact

that Avery and

did not violate Evans' constitutional rights means

Greene

that the City

is not liable to her under section 1983.

This

decision in

(per curiam).

result

is

compelled

by

the

City of Los Angeles v. Heller, 475

____________________
______

Supreme

Court's

U.S. 796 (1986)

In that case, the plaintiff sued a police officer

for making an

cause;

he

Angeles, for

arrest with excessive

also sued

the officer's

force and without

employer,

the City

of Los

promulgating a constitutionally deficient policy in

regard to police officers' use of force.

officer but against the municipality.

judgment for the

jury's verdict and

court

probable

of appeals

gendarme but

claim against the

order of

13

found for the

The district court entered

overrode the second

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
______

The city then appealed.

in

F.2d 1371,

the officer's

1376

The Supreme Court reinstated the

dismissal, declaring that it had never

authorize[d]

the award of

damages against a

municipal corporation based on the actions of

one of its officers when in fact the jury has
concluded

that

constitutional
suffered
hands

no

the

officer

harm.

If

constitutional

of the individual

inflicted

no

person

has

injury

at

the

police officer, the

fact that the departmental

have authorized the
__________

(9th Cir.

use of

regulations might
constitutionally

excessive force is quite beside the point.

Heller, 475 U.S. at 799 (emphasis in original).

______

While Heller
______

that

a municipality cannot be

inadequate public

the

provides a durable basis

liable under section

safety policy in

officers whose

exonerated at trial,

for determining

a situation where,

actions actually caused

we note that a

1983 for an

the harm

panel of the

as here,

have been

Third Circuit

found Heller inapplicable in a case much like this one.

______

In Fagan
_____

v. City of Vineland, 22 F.3d 1283 (3d Cir. 1994) (panel opinion),

________________

the

court stated that "in a substantive due process case arising

out of

a police pursuit,

still exist even

Constitution."

if no

an underlying constitutional

individual police

Id. at 1292.6
___

against the officers and the

tort can

officer violated

the

The court reasoned that the claim

claim against the municipality were

based on two different theories:

their conduct "shocked

the officers would be liable if

the conscience," while the

city would be

____________________

6When the Third Circuit

subsequently reheard Fagan en banc,

_____

22 F.3d 1296, it did not review this aspect of the panel opinion.

14

liable if its policymakers,

implemented a policy

acting with deliberate indifference,

that encouraged the officers

to conduct an

unsafe

pursuit.

Id.
___

Evans invites us

to adopt this analysis.

We decline the invitation because we believe that the Fagan panel

_____

improperly applied the Supreme Court's teachings.

In Collins, the Court emphasized that

_______

proper analysis requires

different

issues

us to separate

when

1983 claim

asserted against a municipality:

plaintiff's

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

test is not an independent theory at all.

deliberate indifference

is merely an articulation

Rather,

of the second

prong of the

cases.

Collins framework, adapted

_______

In treating it

as a

to "policy and

separate theory,

ignored the first segment of the framework:

the

plaintiff's harm

See
___

Thompson v.
________

be caused

Boggs, 33 F.3d
_____

by a

custom"

the Fagan
_____

panel

the requirement that

constitutional violation.

847, 859

n.11 (7th

Cir. 1994)

(rejecting the holding of the Fagan panel opinion), cert. denied,

_____
_____ ______

115

F.3d

S. Ct. 1692 (1995); see also

___ ____

1137,

1153

n.13

contained in the Fagan

_____

165 (1995).

that the

(3d

Mark v. Borough of Hatboro, 51

____
__________________

Cir.)

(questioning

the

panel opinion), cert. denied, 116

_____ ______

analysis

S. Ct.

Consequently, we follow Heller's clear rule and hold

______

City

cannot be

held

liable absent

constitutional

15

violation

by its officers.

See de Feliciano v. de Jesus, 873

___ _____________
_________

F.2d 447, 449 (1st Cir.), cert. denied, 493 U.S. 850 (1989).
_____ ______

IV.
IV.

THE CROSS-APPEAL
THE CROSS-APPEAL

The City of Boston appeals the jury's verdicts for loss

of

consortium in favor of

parents).

Muriel and Billy

Evans (Marie Evans'

It advances a single isthmian ground in support of its

cross-appeal, arguing that the trial court erred in formulating a

jury instruction.

We

objection,

limited

frame the

the lower

the damages

$100,000.

See
___

instruction was

jury

assignment of

court instructed the

that

supra
_____

could be

note

1.

to decide the

could

severe

not fully

injuries

jury that

awarded

The

Over the

on each

City

argues

unfairly prejudicial inasmuch as

amount of damages

premise is that, once the jury

it

error.

compensate

and

City's

state law

claim

to

that this

it "caused the

on emotion."

The City's

knew of the cap, it realized that

Marie Evans

therefore

decided

for

to

her extremely

circumvent

the

statutory impediment by remunerating Marie's family as generously

as possible.7

This

asseveration

Massachusetts statute

an

lacks

merit.

nor the cases discussing

Neither

the

it prohibit such

instruction, and the City cites no case from any jurisdiction

which holds that in

such circumstances a trial court

abuses its

____________________

7Marie Evans presented testimony indicating that her damages

may

have totalled as much

as $2,000,000.

The jury, apparently

heedful of the magistrate's instructions concerning the statutory

cap,

awarded her

$100,000.

The

verdict.

16

City

has not

appealed

that

discretion

To

by informing a jury

of a statutory

the contrary, the cases upon which

nothing more than

abuse its

limit.

(Ark.

the proposition

discretion in refusing

See, e.g.,
___ ____

1984); State
_____

cap on damages.8

the City relies stand for

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

cede wide discretion

fashion jury instructions as

Houlihan,

a jury about

statutory

the practice.

to trial

courts to

they see fit, see United States v.

___ ______________

1299

n.31

(1st

Cir. 1966);

Putnam

________

Resources
_________

______

v. Pateman, 958 F.2d 448, 462

_______

(1st Cir. 1992), and we

see no reason to second-guess the court in this instance.

This conclusion is reinforced by other incidents of the

case at hand.

supported by

For one thing, the awards to the parents are amply

evidence in the

evidence

has

properly

instructing

magistrate

been

record

contradicted.

told them

the

jurors

that "[t]he

Evans for loss of consortium are

be judged separately."

and

almost none

For

another

on loss

of

claims for

of this

thing,

after

consortium,

Muriel and

the

Billy

separate claims and each is

to

Jurors are presumed to follow the court's

____________________

8This

is not a case like Sasaki

______

v. Class, 92 F.3d 232 (4th

_____

Cir. 1996), in which the trial court, though forbidden by statute

from

informing the jury of a cap on damages, nonetheless allowed

counsel to do so.
due

to

See id.
___ ___

a violation

Massachusetts

of

at 235-37 (remanding for a new

42 U.S.C.

1981a(c)(2)).

trial

Here, the

legislature wrote a statute that is silent on this

point, and we decline to speak for it.

17

instructions,

see Houlihan,
___ ________

92 F.3d at

1287; United States v.

______________

Rivera-Gomez, 67 F.3d 993,

____________

999 (1st Cir. 1995), and the City has

not

justification

offered

sufficient

for

overcoming

this

presumption.

In

the last

analysis, the City's

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

involving a seizure, the officers may be held liable on the basis

of

substantive due process only if their actions (whether or not

reckless or deliberately indifferent

conscience.

Here, Marie Evans'

conscience-shocking

Greene.

Section 1983

conduct on

to public safety) shock the

injuries are not

the

part of

the result of

officers Avery

therefore provides no remedy against

(or against the City of Boston, for that matter).9

No error appearing, the judgment below will be

or

them

Affirmed.
Affirmed.
________

All parties shall bear their own costs.

All parties shall bear their own costs.
______________________________________

____________________

9We emphasize that we are asked

federal

law only whether Marie

to recover damages under

of whether

Commonwealth

the Due Process Clause.

be answered according
of

Massachusetts

limited tort remedy,

here,

we must

legitimate province.
to

Evans has a constitutional right

The questions

or to what extent she may maintain a suit under state

tort law must

result

to determine as a matter of

has

and, though

to that body
chosen to

provide

that choice has

recognize the
It is not the

of law.

a very

state's suzerainty

The

only

harsh

in its

function of a federal court

force state tort law into unfamiliar contours under the guise

of constitutional interpretation.

18