152 F.3d 790 (8th Cir. 1998), 97-2286, Rogers v. City of Little Rock, Ark.

Docket Nº:97-2286, 97-2556.
Citation:152 F.3d 790
Party Name:Vivian Ann ROGERS, Plaintiff-Appellant, v. CITY OF LITTLE ROCK, ARKANSAS; Vincent Morgan, Little Rock, Arkansas Police Officer, Individually and in His Official Capacity; Louis Caudell, Little Rock, Arkansas Police Chief, Individually and in His Official Capacity, Defendants-Appellees. Vivian Ann ROGERS, Plaintiff-Appellee, v. CITY OF LITTLE ROCK,
Case Date:August 10, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 790

152 F.3d 790 (8th Cir. 1998)

Vivian Ann ROGERS, Plaintiff-Appellant,

v.

CITY OF LITTLE ROCK, ARKANSAS; Vincent Morgan, Little Rock,

Arkansas Police Officer, Individually and in His Official

Capacity; Louis Caudell, Little Rock, Arkansas Police

Chief, Individually and in His Official Capacity,

Defendants-Appellees.

Vivian Ann ROGERS, Plaintiff-Appellee,

v.

CITY OF LITTLE ROCK, ARKANSAS, Defendant,

Vincent Morgan, Little Rock, Arkansas Police Officer,

Individually and in His Official Capacity,

Defendant-Appellant,

Louis Caudell, Little Rock, Arkansas Police Chief,

Individually and in His Official Capacity, Defendant.

Nos. 97-2286, 97-2556.

United States Court of Appeals, Eighth Circuit

August 10, 1998

Submitted Jan. 16, 1998.

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Bill Lupen, Little Rock, AR, argued, for Plaintiff-Appellant.

Thomas M. Carpenter, Little Rock, AR, argued, for Defendants-Appellees.

Before LOKEN and MURPHY, Circuit Judges, and WEBBER, 1 District Judge.

MURPHY, Circuit Judge.

Vivian Ann Rogers brought this action under 42 U.S.C. § 1983 against former Little Rock police officer Vincent Morgan, the City of Little Rock, and Chief of Police Louie C. Caudell, alleging that her constitutional rights were violated when Morgan raped her while he was on duty. After a bench trial the district court 2 found Morgan liable in his individual capacity and awarded Rogers $100,000 in damages. The court had previously dismissed the claims against the city, Caudell, and Morgan in his official capacity. Rogers now challenges these dismissals, and Morgan appeals from the judgment entered against him. We affirm.

I

Little Rock police officer Vincent Morgan stopped Rogers for a broken tail light on August 27, 1994, and asked her for proof she carried automobile insurance. She indicated that she did not have the necessary papers with her, and Morgan called for a tow truck which was standard procedure in such a situation. He later decided to cancel the tow, however, and he followed her home in his patrol car and went into her house. Rogers was unable to locate the papers, and Morgan told her he would let her off but that she owed him one. He then started touching and kissing her and led her into the bedroom where he told her to take off her clothes. Although she began to undress, she stopped when Morgan said she did not have to have sex with him. When he nevertheless repeated

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his demand that she disrobe, Rogers finished removing her clothes. Morgan then pushed her onto the bed and had sexual intercourse with her. Rogers said that she yelled because it hurt, but Morgan told her to be quiet and covered the microphone on his uniform.

Rogers testified that she was in shock and afraid during this encounter and that she did not know what to do, that she was surprised a police officer would be acting in such a way, and that she was intimidated by Morgan's gun and badge. The events took place during Morgan's duty shift when he was wearing his uniform, gun, and badge. He drove to Rogers' home in his patrol car and remained fully dressed in his uniform throughout. Rogers said she was afraid to show how upset she was at the time, but after Morgan left she vomited and called her former husband. He testified that she was upset and cried during the call. Her cousin took her to the hospital when she learned what had happened.

Rogers later sued the city and Morgan and the police chief in both their individual and official capacities. She alleged that she had been deprived of her constitutional rights under color of state law because Morgan used his office to coerce and intimidate her into nonconsensual sex. She also alleged that the department's policy of not sustaining citizen complaints without corroborating evidence created a permissive climate for abusive behavior. Finally, she alleged that the chief failed to take appropriate measures in response to prior sexual misconduct by Morgan and constitutional violations by other officers.

The district court granted summary judgment for the city and Chief Caudell in all respects, and for Morgan in his official capacity. The court held there was insufficient evidence to create a genuine issue of material fact about whether there was a policy or custom of failing to investigate or act on allegations of abuse by police officers and whether there was evidence that the chief handled prior incidents improperly or ignored complaints. Morgan's motion for summary judgment in his individual capacity was denied on the basis that a genuine issue of material fact remained about whether the sex was consensual.

Both Rogers and Morgan testified at trial, and the court found Rogers the more credible witness, accepted her version of the encounter, and made findings that Rogers was afraid of Morgan and what might happen if she didn't cooperate with a police officer and that he coerced her into sexual intercourse. The court also made specific findings leading to its conclusion that Morgan was acting under color of state law at the time. The court concluded that Morgan was liable under § 1983 because he had violated Rogers' due process right to be free from physical abuse. It rejected Morgan's defense of qualified immunity because it concluded that he would have known that his actions were clearly contrary to law. It upheld Rogers' state law claim of assault and battery but dismissed her claim of intentional infliction of emotional distress. The court also found that Rogers was damaged in the amount of $100,000 for emotional distress and physical pain caused by Morgan's acts.

Morgan argues on appeal that Rogers failed to establish that he violated her due process rights since the evidence at trial showed the sex was consensual. He contends that he was not acting under color of state law because his actions were a substantial departure from the duties of his job and that the damage award was excessive. Rogers responds that the evidence supports the finding that Morgan intimidated and coerced her into having sex with him and that he did so under color of state law. She also contends that the resulting harm she suffered justifies the damage award.

Rogers appeals from the grant of summary judgment to the city and the police chief and to Morgan in his official capacity. She argues that she presented sufficient evidence to show that the city had a policy of disregarding complaints by citizens against police officers when the only evidence was the complainant's word against that of an officer, as well as failing to take effective

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remedial action for abuse. 3 In support she cites deposition evidence from department officials and unsustained complaints by female police officers of sexual harassment. The city, arguing on behalf of itself and the police, responds that Rogers has not produced evidence that the city had such a policy or that the chief was deliberately indifferent to or tacitly authorized constitutional violations. Morgan presents a similar argument.

II

A number of issues are raised in connection with Morgan's appeal from the judgment entered against him after trial.

A

The first question is whether the district court was correct to analyze the case under the due process clause. In her complaint Rogers alleged that her rights under the fourth, fifth, sixth, eighth, and fourteenth amendments were violated, and it was left to the district court to consider which of these amendments should be the proper focus of analysis. In its consideration the court made reference to Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), and reasoned that the facts here do "not fit the mold of a typical fourth amendment search and seizure case" and that no amount of force could have been reasonable to achieve Morgan's purpose in having nonconsensual intercourse. His acts were of a nature shocking to the conscience the court said, citing Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), and the forced act of sexual intercourse violated Rogers' due process right to be free from physical abuse or sexual assault by state actors.

The Supreme Court has recognized a substantive due process right to bodily integrity in Rochin and a line of other cases, even when declining to apply it to particular fact situations. See e.g. Washington v. Glucksberg, 521 U.S. 702, ----, 117 S.Ct. 2258, 2267, 138 L.Ed.2d 772 (1997) (no due process right to assisted suicide); Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 287-88, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990) (O'Connor, J., concurring) (no absolute due process right to terminate life support of an incompetent). "It is settled now that the constitution places limits on the State's right to interfere with a person's most basic decisions about bodily integrity." Glucksberg, at ---- - ----, 117 S.Ct. at 2288-89 (Souter, J., concurring) (quoting Planned Parenthood v. Casey, 505 U.S. 833, 849, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992)). The right has been employed to protect against nonconsensual intrusion into one's body, see Rochin, and has been seen to permit the right of a competent person to refuse unwanted medical treatment, see Cruzan, 497 U.S. at 278-79, 287-88, 110 S.Ct. 2841; Vacco v. Quill, 521 U.S. 793, ----, 117 S.Ct. 2293, 2301, 138 L.Ed.2d 834 (1997) (discussing Cruzan ). The Supreme Court has...

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