Evans v. Avery

• Decision Date: 20 November 1996
• Docket Number: N,No. 95-2125,95-2125
• Citation: 100 F.3d 1033
• Parties: MARIE EVANS, p.p.a. MURIEL EVANS, Plaintiff, Appellant, v. TERRACE AVERY, ET AL., Defendants, Appellees. MURIEL EVANS AND BILLY EVANS, Plaintiffs, Appellees, v. CITY OF BOSTON, Defendant, Appellant. o. 95-2126
• Court: U.S. Court of Appeals — First Circuit

Page 1033

100 F.3d 1033

MARIE EVANS, p.p.a. MURIEL EVANS, Plaintiff, Appellant, v. TERRACE AVERY, ET AL., Defendants, Appellees.

MURIEL EVANS AND BILLY EVANS, Plaintiffs, Appellees, v. CITY OF BOSTON, Defendant, Appellant.

No. 95-2125, No. 95-2126

United States Court of Appeals First Circuit

Argued September 12, 1996

Decided November 20, 1996

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] Michael Avery, Boston, MA, with whom Perkins, Smith & Cohen wss on brief, for plaintiffs.

Kevin S. McDermott, Assistant Corporation Counsel, Boston, MA, with whom Merita A. Hopkins, Corporation Counsel, was on brief, for defendants.

Before: Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Boyle, ^* Senior District Judge.

SELYA, Circuit Judge.

These appeals require us to revisit the legal standard which courts must apply to resolve a claim that a police pursuit has been conducted in a manner antithetical to the protections afforded by the substantive aspect of the Due Process Clause. The question arises in the context of a civil action brought against the City of Boston and two of its police officers after a motor vehicle driven by a suspected drug dealer fleeing from the police struck and injured a youthful pedestrian, Marie Evans. The district court took Evans' civil rights claims from the jury, and Evans now appeals both the court's direction of a verdict in favor of the police officers and its earlier grant of summary judgment in favor of the City. At the same time, the City cross-appeals from a jury verdict in favor of Evans' parents on a related state-law tort claim. We affirm the judgment below in all respects.

I. BACKGROUND

We assess the facts of record in the light most favorable to the plaintiffs. See, e.g., Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d 1364, 1375 (1st Cir. 1991) (elucidating 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 needed for disposition of the cross-appeal.

The events that fomented this lawsuit occurred in the twinkling of an eye. At approximately 6:00 p.m. on August 12, 1992, officers Terrace Avery and John J. Greene were cruising through a residential neighborhood in the Dorchester section of Boston. They spotted suspicious activity at the intersection of Nixon and Centre Streets: an individual who appeared to be startled at their presence yelled excitedly, threw a paper bag through the open window of a parked Oldsmobile, and vaulted into the front passenger seat. The driver immediately headed west on Centre St. at 20-25 m.p.h. Greene decided to stop the automobile and detain its occupants. He executed a U-turn, set out after the Oldsmobile, and activated his siren and wig-wag lights. Instead of stopping, the suspects' car accelerated. The officers took up the chase in earnest, travelling at roughly 45 m.p.h. When the officers observed the occupants of the Oldsmobile placing small items in their mouths and passing a jug back and forth, they concluded that the suspects were swallowing potential evidence.

As the Oldsmobile approached Codman Square -- a complex intersection at which Centre St., Washington St., Norfolk St., and Talbot Ave. meet -- it crossed to the wrong side of the road, passed three cars waiting at a red light, and turned left on Washington St., travelling as fast as 50 m.p.h. The officers remained close behind. Approximately 300 feet from Codman Square, the suspects' vehicle struck a ten-year-old girl, Marie Evans, who was attempting to cross Washington St. Greene stopped his car and Avery alighted to assist the victim. Greene then continued his pursuit of the Oldsmobile. The entire incident lasted no more than two minutes.

The plaintiffs' evidence shows that traffic was heavy at the time of the chase and that numerous pedestrians were about. Both Greene and Avery were familiar with Codman Square and knew that it was a busy shopping venue adjacent to a densely populated residential area. They also knew that Centre St. affords limited visibility of the Codman Square intersection.

Marie Evans sued the officers pursuant to 42 U.S.C. Section(s) 1983 (1994); she sued the City pursuant to the same statute; and she and her parents, Muriel and Billy Evans, sued the City under Mass. Gen. L. ch. 258, Section(s) 2 (1988).¹ 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 the plaintiff had failed to adduce evidence sufficient to prove a policy or custom of deliberate indifference attributable to the City. The parties thereafter consented to trial before a magistrate judge. See 28 U.S.C. Section(s) 636(c) (1994); Fed. R. Civ. P. 73(a). At the 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 judgment as a matter of law. See Evans v. Avery, 897 F. Supp. 21 (D. Mass. 1995). The jury then considered the pendent claims and awarded damages to Evans and each of her parents in the amount of $100,000 (the per claimant maximum allowable under state law, see supra note 1). These appeals followed.

II. THE SECTION 1983 CLAIM AGAINST THE OFFICERS

Marie Evans asserts that the nisi prius court erred in directing a verdict for the police officers. 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 violated her right to substantive due process.

Section 1983 supplies a private right of action against a person who, under color of state law, deprives another of rights secured by the Constitution or by federal law. Evans' mishap involved neither physical contact with a police officer nor police action directed at her. In short, it was not a seizure and it was therefore not in derogation of her Fourth Amendment rights. See Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (distinguishing between police action directed toward producing a particular result and police action that happens to cause an unintended, if foreseeable, result and holding that only the former can constitute a seizure); Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir. 1990) ("It is intervention directed at a specific individual that furnishes the basis for a Fourth Amendment claim."). Nevertheless, even outside the context of a seizure, appellate courts have noted that a person injured as a result of police misconduct may prosecute a substantive due process claim under section 1983. See, e.g., Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1408 n.10 (9th Cir. 1989), cert. denied, 494 U.S. 1016 (1990); see also Landol-Rivera, 906 F.2d at 796 (assuming proposition). The initial question that confronts us concerns the legal standard by which the officers' conduct should be judged in such instances.

We begin with an historical perspective. In Landol-Rivera we ruled that police officers who were engaged in hot pursuit of a suspect could not be held liable under the substantive aspect of the Due Process Clause for the shooting of a hostage. 906 F.2d at 798. We premised that ruling on a determination that the officers' conduct did not reflect a reckless or callous indifference to the hostage's rights. See id. at 796-98. Two things about this articulation of the applicable legal standard are noteworthy. In the first place, our use of the "deliberate indifference" test did not broach new ground, but, rather, reflected a fairly straightforward application 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 an individual's rights is a necessary predicate to triggering the substantive protections of the Due Process Clause. See id. at 17-19.² In the second place, Landol-Rivera did not presume to undertake a full formulation of the test applicable to substantive due process claims in creation of danger cases; instead the court went only 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). In that case, the widow of an asphyxiated sanitation department employee claimed that her deceased husband had "a constitutional right to be free from unreasonable risks of harm to his body, mind and emotions and a constitutional right to be protected from the [city's] custom and policy of deliberate indifference toward the safety of its employees." Id. at 117. Noting its traditional reluctance "to expand the concept of substantive 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 conscience' of federal judges." Id. at 126. The Court reiterated this standard when it determined that the city's alleged failure to train or warn its employees was not actionable as a substantive due process violation because the city's conduct could not "be characterized as arbitrary, or conscience shocking, in a constitutional sense." Id. at 128. Rather, the Court held petitioner's claim to be "analogous to a fairly typical state-law tort claim," and noted that it had "previously rejected claims that the Due Process Clause should be interpreted to impose federal duties that are analogous to those traditionally imposed by state tort law." Id.

Since Collins was decided in 1992, two of our sister circuits, faced with the...