Hart v. City of Little Rock

• Citation: 432 F.3d 801
• Decision Date: 22 December 2005
• Docket Number: No. 04-2714.,04-2714.
• Parties: Jerry HART; Andre Dyer, Plaintiffs/Appellees, v. CITY OF LITTLE ROCK, Defendant/Appellant. Arkansas State Lodge Fraternal Order of Police, Amicus on behalf of Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 801

432 F.3d 801

Jerry HART; Andre Dyer, Plaintiffs/Appellees, v. CITY OF LITTLE ROCK, Defendant/Appellant.

Arkansas State Lodge Fraternal Order of Police, Amicus on behalf of Appellee.

No. 04-2714.

United States Court of Appeals, Eighth Circuit.

Submitted: October 10, 2005.

Filed: December 22, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas M. Carpenter, Little Rock, AR, for appellant.

Patrick R. James, Little Rock, AR (Samuel A. Perroni, Little Rock, on the brief), for appellee.

Before BYE, BEAM, and SMITH, Circuit Judges.

BYE, Circuit Judge.

Police officers Jerry Hart and Andre Dyer successfully sued the City of Little Rock, Arkansas (Little Rock or the City) under 42 U.S.C. § 1983 alleging substantive due process violations. A jury awarded each officer $225,000, and the district court denied Little Rock's motions for judgment as a matter of law (JAML) and a new trial. We reverse.

I

Hart and Dyer are police officers employed by Little Rock. On May 30, 2001, they arrested Michael Bullock on drug charges. Bullock, who has three other felony convictions, had previously been arrested by Hart and Dyer and had filed complaints against them. In the course of the criminal proceedings against Bullock, his lawyer, at Bullock's behest, subpoenaed Hart's and Dyer's city personnel files. The subpoena was received by Stacey Witherell, an employee in Little Rock's human resources department. It directed Little Rock to produce the files at trial, but a cover-sheet indicated the City could comply by providing copies ahead of trial. Witherell, in accordance with Little Rock's practice, made copies of the complete files and gave them to the lawyer on the same day the subpoena was received.

Bullock eventually pleaded guilty but not before his legal counsel gave him copies of the files containing personal information about Hart and Dyer, including home addresses, social security numbers, names and addresses of family members, driver's license numbers, etc. While incarcerated awaiting trial, Bullock told other inmates and a sheriff's deputy he had the files and suggested the information could be used to cause problems for Hart and Dyer. After Bullock talked to the deputy, the copies were seized and destroyed.

Hart and Dyer sued Little Rock alleging the disclosure of the personnel files violated their substantive due process rights. Specifically, they alleged the disclosure violated their privacy rights, implicating their fundamental interests in preserving personal security and bodily integrity. Little Rock's motion for summary judgment was denied and the case proceeded to trial. At trial, Hart and Dyer argued Little Rock's practice of releasing employee personnel files without redaction or notice to the employees demonstrated deliberate indifference to their privacy rights. As police officers, they contended the release of information was especially egregious because it placed them in grave danger from criminals who might retaliate against them or family members. Both Hart and Dyer testified the disclosure of their personnel files caused them much fear and anxiety. Hart testified he moved out of his apartment, lost weight, became impatient, worried about his personal safety and his family's safety, and missed work because he felt betrayed by the City. Dyer testified he also worried constantly about his and his family's safety, changed his routine, took additional safety measures, e.g., taught his wife to shoot a rifle, bought additional weapons, and reinforced the doors to his home. Other witnesses testified he became short-tempered, paranoid and appeared stressed.

Over Little Rock's objection, the district court also allowed evidence of an incident where Hart and Dyer were shot at during an unrelated drug arrest. The incident did not involve Bullock but was apparently admitted to illustrate the dangerousness of their jobs and to show their safety concerns were well-founded. Additionally, the district court allowed Hart and Dyer to present evidence that Shawn Jimenez, an acquaintance of Bullock's, once attempted to hire an undercover police officer to kill them.¹

The jury concluded Little Rock's release of the personnel files was a violation of the officers' substantive due process rights and awarded each $225,000. In post-trial motions, the district court denied Little Rock's motions for JAML and a new trial, and granted Hart's and Dyer's motions for costs and attorney's fees. On appeal, Little Rock contends the district court erred in denying its motion for JAML because the evidence was insufficient to support the substantive due process claims. Little Rock also contends the district court should have granted its new trial motion because the evidence relating to the shoot-out and Jimenez was improperly admitted. Finally, Little Rock contends the damage awards were unsupported by the evidence, requiring either a new trial or remittitur.

II

Little Rock first contends the district court erred in denying its JAML motion because the evidence was insufficient to prove it violated Hart's and Dyer's substantive due process rights under § 1983. We agree.

We review the district court's denial of JAML "in the light most favorable to the party who prevailed before the jury." City of Omaha Employees Betterment Ass'n v. City of Omaha, 883 F.2d 650, 651 (8th Cir.1989). Accordingly, we

(1) resolve direct factual conflicts in favor of the nonmovant, (2) assume as true all facts supporting the nonmovant which the evidence tended to prove, (3) give the nonmovant the benefit of all reasonable inferences, and (4) deny the motion if the evidence so viewed would allow reasonable jurors to differ as to the conclusions that could be drawn.

Pumps & Power Co. v. So. States Indus., 787 F.2d 1252, 1258 (8th Cir.1986) (quotations omitted).

A § 1983 plaintiff must prove the "(1) violation of a constitutional right, (2) committed by a state actor, (3) who acted with the requisite culpability and causation to violate the constitutional right." Kuha v. City of Minnetonka, 365 F.3d 590, 606 (8th Cir.2003) (quoting Shrum v. Kluck, 249 F.3d 773, 777 (8th Cir.2001)). Hart and Dyer allege substantive due process violations, arguing Little Rock's release of their personnel files greatly increased the risk of harm by private individuals who might retaliate against them as police officers.

Generally, states have no affirmative obligation to protect individuals against private violence. DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). The Due Process Clause of the Fourteenth Amendment "is phrased as a limitation on a state's power to act, not as a guarantee of certain minimal levels of safety and security." Id. at 195, 109 S.Ct. 998. "Its purpose [is] to protect the people from the State, not to ensure that the State protect[s] them from each other." Id. at 196, 109 S.Ct. 998. The "State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197, 109 S.Ct. 998.

Substantive due process does, however, require a state to protect individuals under two theories. First, the state owes a duty to protect those in its custody. Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir.1992) (en banc). Second, the state owes a duty to protect individuals if it created the danger to which the individuals are subjected. Id. Hart and Dyer rely on the "state-created danger" theory. We assume without deciding that Little Rock's release of Hart's and Dyer's personnel files created sufficient danger to implicate constitutionally protected privacy interests. Additionally, we conclude element two is satisfied because there is no dispute the alleged constitutional violation was precipitated by state action. Accordingly, our analysis will focus on the third element of their § 1983 claim — whether the evidence proved Little Rock acted with the requisite degree of culpability.

The Due Process Clause's "guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm[,]" County of Sacramento v. Lewis, 523 U.S. 833, 848, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), and "does not transform every tort committed by a state actor into a constitutional violation," DeShaney, 489 U.S. at 202, 109 S.Ct. 998. "[I]f the state acts affirmatively to place someone in a position of danger that he or she would not otherwise have faced, the state actor, depending on his or her state of mind, may have committed a constitutional tort." S.S. v. McMullen, 225 F.3d 960, 962 (8th Cir.2000) (en banc) (emphasis added). "[T]he test we employ to ascertain a valid substantive due process violation is `whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.'" Hawkins v. Holloway, 316 F.3d 777, 780 (8th Cir.2003) (quoting Lewis, 523 U.S. at 848 n. 8, 118 S.Ct. 1708).

Under the state-created danger theory, Hart and Dyer must prove 1) they were members of a limited, precisely definable group, 2) Little Rock's conduct put them at significant risk of serious, immediate, and proximate harm, 3) the risk was obvious or known to Little Rock, 4) Little Rock acted recklessly in conscious disregard of the risk, and 5) in total, Little Rock's conduct shocks the conscience. Avalos v. City of Glenwood, 382 F.3d 792, 798 (8th Cir.2004) (citing Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.1995)).

Mere negligence can never be conscience-shocking and cannot support a claim alleging a violation of substantive due process rights. Terry B. v. Gilkey, 229 F.3d 680, 684 (8th Cir.2000). Indeed, "[w]e have held more than once that gross negligence `is not actionable . . . under § 1983.'" S.S., 225 F.3d at 964 (quoting Sellers By and Through Sellers v. Baer, 28 F.3d 895, 902-03 (8th Cir.1994)). "[T]he constitutional concept of conscience...