271 F.3d 341 (1st Cir. 2001), 01-1301, Cummings v. McIntire

Docket Nº:01-1301
Citation:271 F.3d 341
Party Name:JAMES W. CUMMINGS AND DEBORAH CUMMINGS, Plaintiffs, Appellants, v. POLICE OFFICER ALLEN MCINTIRE, POLICE CHIEF MICHAEL CHITWOOD, AND THE CITY OF PORTLAND, Defendants, Appellees.
Case Date:November 16, 2001
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 341

271 F.3d 341 (1st Cir. 2001)

JAMES W. CUMMINGS AND DEBORAH CUMMINGS, Plaintiffs, Appellants,

v.

POLICE OFFICER ALLEN MCINTIRE, POLICE CHIEF MICHAEL CHITWOOD, AND THE CITY OF PORTLAND, Defendants, Appellees.

No. 01-1301

United States Court of Appeals, First Circuit

November 16, 2001

Heard Oct. 2, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Page 342

Michael J. Waxman for appellants.

Mark E. Dunlap, with whom Norman, Hanson & DeTroy was on brief, for appellees.

Before Lynch, Circuit Judge, Coffin, Senior Circuit Judge, and Young,[*] District Judge.

COFFIN, Senior Circuit Judge.

Appellant James Cummings brought this suit under 42 U.S.C. § 1983 claiming that his right to substantive due process was violated when appellee Allen McIntire, an on-duty police officer, allegedly struck him unjustifiably as Cummings asked for street directions. The district court granted summary judgment for all defendants.1 It concluded that McIntire's

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conduct - though deplorable, unprofessional and offensive - did not "shock the conscience," and thus fell short of establishing a constitutional violation. We affirm.

I. Factual Background

The relevant facts are essentially undisputed for purposes of our review,2 which is de novo. See Underwriters at Lloyd's v. Labarca, 260 F.3d 3, 7 (lst Cir. 2001). On the morning of October 4, 1998, appellee McIntire was assigned with two other uniformed officers to direct traffic at an intersection in Portland, Maine, that was along the route of a road race taking place that day. The corner, where Washington and Ocean avenues cross, was a hectic scene of heavy traffic activity. The officers periodically needed to stop cars or runners; they sometimes allowed both vehicles and runners to move through at the same time and at other times stopped all lanes of traffic to allow the runners to pass. At about 9:20 a.m., appellant Cummings arrived at the intersection looking for Arcadia Street. When he encountered the race, he drove into the parking lot of a nearby convenience store and got out of his car to ask a volunteer for directions. She was busy with the race and unfamiliar with Arcadia Street, and so she directed him to Officer McIntire. Cummings approached the officer, who had stopped cars and was looking right to left to check traffic as runners started to come through the intersection. The district court, borrowing from the factual summary prepared by the magistrate judge, described the ensuing events as follows:

The officer . . . essentially [had his] back to Cummings, with his head swiveling watching the traffic and runners. Cummings moved only a step forward and began to ask the officer for directions. From behind, Cummings said, "Excuse me sir," waited for perhaps two seconds and repeated, "Excuse me, sir." When no traffic was moving and it was perfectly quiet, Cummings began to ask his question, holding his right arm out straight from his body at approximately a forty-five degree angle. Cummings was standing approximately four feet away from the officer.

To describe what happened next, the district court quoted Cummings' affidavit:

18. Before I could complete my question, Officer McIntire turned towards me and shoved me hard toward the far curb of Washington Avenue.

19. As Officer McIntire shoved me, he was verbally abusive to me. He yelled "IF YOU DON'T HAVE A GODAMMED [sic] EMERGENCY GET THE HELL OUT OF HERE."

20. The force of the blow propelled me backwards and I twisted violently in an effort to maintain my balance.

Cummings did not fall, but reported that he suffered immediate pain in his left back and left leg and foot. A pre-existing medical condition made his neck vulnerable to fracture and herniation, and he alleged that as a result of McIntire's shove he underwent back surgery and has since "suffered stabbing pain, and permanent impairment."

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Cummings subsequently filed this action alleging deprivation of his right to be free from the use of excessive and unreasonable force pursuant to the Fifth and Fourteenth Amendments to the United States Constitution and analogous Maine constitutional provisions. The magistrate judge concluded that McIntire's alleged behavior was sufficiently egregious that a jury would be permitted to find that it "shocked the conscience," but he found no evidentiary basis for holding either the police chief or the city responsible for McIntire's conduct.

The district court agreed that McIntire's behavior deserved censure, but disagreed with the magistrate judge's legal conclusion. He termed the conduct "deserving of discipline," but stated that it does not "'shock the conscience' in the way the Supreme Court or the First Circuit has used those terms." The court therefore granted summary judgment for all defendants on all claims. As explained earlier, see note 1 supra, only the substantive due process...

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