Williams v. Berney

• Citation: 519 F.3d 1216
• Decision Date: 18 March 2008
• Docket Number: No. 06-1177.,06-1177.
• Parties: Reed WILLIAMS, individually and as co-assignee of The Golden Bone, LLC, a dissolved Colorado limited liability company, and Marcy Albin, individually and as co-assignee of The Golden Bone, LLC, a dissolved Colorado limited liability company, Plaintiffs-Appellants, v. Richard L. BERNEY, in his individual capacity, and City and County of Denver, a government entity, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

519 F.3d 1216

Reed WILLIAMS, individually and as co-assignee of The Golden Bone, LLC, a dissolved Colorado limited liability company, and Marcy Albin, individually and as co-assignee of The Golden Bone, LLC, a dissolved Colorado limited liability company, Plaintiffs-Appellants, v. Richard L. BERNEY, in his individual capacity, and City and County of Denver, a government entity, Defendants-Appellees.

No. 06-1177.

United States Court of Appeals, Tenth Circuit.

March 18, 2008.

Ross B.H. Buchanan, Buchanan, Jurdem & Cederberg, P.C., Denver, CO, for Plaintiffs-Appellants.

J. Andrew Nathan, Nathan, Bremer, Dumm & Myers, P.C. (Marni Nathan Kloster, Nathan, Bremer, Dumm & Myers, P.C., for Appellee Richard Berney, and Thomas G. Bigler, Assistant City Attorney, City Attorney's Office, for Appellee City and County of Denver, with him on the brief), Denver, CO, for Defendants-Appellees.

Before HARTZ, McKAY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

While delivering a licensing notice to a kennel business, Denver business license inspector Richard Berney physically assaulted Reed Williams and Marcy Albin, co-owners of the business. Williams and Albin sued Berney and his employer, the City and County of Denver, alleging the assaults violated their procedural and substantive due process rights under 42 U.S.C. § 1983. They also alleged state law battery and extreme and outrageous conduct claims against Berney.

The district court granted partial summary judgment on the substantive due process claim, reasoning that Berney's tortious conduct did not rise to the level of a constitutional violation under § 1983. Plaintiffs appealed. While Berney's conduct was plainly objectionable, we agree with the district court that he did not violate Plaintiffs' constitutional rights.

Accordingly, we AFFIRM the district court's grant of summary judgment on Plaintiffs' substantive due process claim.¹

I. Background

For the purposes of summary judgment, Berney and the City accepted the relevant allegations in Plaintiffs' complaint and argued Plaintiffs could not, as a matter of law, establish a violation of their substantive due process rights.

According to the complaint, Plaintiffs Williams and Albin co-owned and operated The Golden Bone, a "doggie daycare" business located in Denver, Colorado. When they opened their business, an official with Denver's Department of Excise and License told them a kennel license was unnecessary. But Denver apparently changed its licensing policy several weeks after this conversation, and the Department began requiring all pet daycare businesses to have a kennel license.

Richard Berney worked for the City as a business license inspector charged with monitoring and enforcing compliance with Department rules and regulations. Five days after the change in licensing policy, Berney walked into The Golden Bone in an agitated and aggressive manner, told the owners their business needed to have a license, and threatened to shut it down. Albin then explained they had relied on the Department's representation that the business did not require a license. Berney accused Albin of lying and showed her a copy of the licensing ordinance. Albin asked to make a photocopy and walked away to do so.

Having decided that Albin was taking too long to photocopy the ordinance, Berney followed her into the rear of the business, ignoring signs restricting access to visitors. Williams, who was present, asked Berney to return to the front lobby area and wait for Albin. Berney refused, "stating repeatedly that he was a City official and could go wherever he wanted to go, all the while using profane and threatening language and forceful movements of his body." Aplt.App. at 21 ¶ 12.

A confrontation ensued during which Berney assaulted both Plaintiffs. According to the complaint, Berney "without provocation ... pushed, shoved and repeatedly struck ... Williams ... both inside and outside the business premises." Id. at 21 ¶ 14. When Albin tried to help Williams, Berney also struck and pushed her. Id. at 22 ¶ 15. Ten days later, Williams suffered a stroke, which he attributed to the fight.² Both Plaintiffs alleged physical, emotional, and economic injuries.

II. Analysis

Plaintiffs contend Berney's assault violated the Fourteenth Amendment's protections of substantive due process—the right to be free from conscience-shocking government conduct. They argue Berney's conduct created a fact question for the jury, making summary judgment improper. We disagree.

A. Standard of Review

We review the district court's grant of summary judgment de novo using the same standard the district court used. Croy v. Cobe Labs., Inc., 345 F.3d 1199, 1201 (10th Cir.2003). Summary judgment is appropriate only when "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir.2004). The district court thus resolved summary judgment purely as a matter of law, ruling in favor of Berney on qualified immunity grounds and in favor of the City based on the lack of municipal liability.

"When a defendant asserts a qualified immunity defense, the burden shifts to the plaintiff, who must first establish that the defendant violated a constitutional right." Cortez v. McCauley, 478 F.3d 1108, 1114 (10th Cir.2007) (en banc); see also Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (explaining that the first step in analyzing qualified immunity cases asks, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the [defendant's] conduct violated a constitutional right?"). Moreover, "[i]f no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Cortez, 478 F.3d at 1114 (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151).

Only if the plaintiff can show a constitutional violation do the courts ask whether "the constitutional right was clearly established." Id. To overcome the qualified immunity defense, then, the plaintiff carries the burden of showing both that a constitutional violation occurred and that the constitutional right was clearly established at the time of the alleged violation. Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir.1995).

B. Substantive Due Process Framework

This case once again "requires us to wade into the murky waters of § 1983-based" substantive due process claims. Becker v. Kroll, 494 F.3d 904, 913 (10th Cir.2007). Substantive due process arises from the Fourteenth Amendment's protections against governmental deprivations "without due process of law." U.S. Const. amend. XIV, § 1. Under this framework, due process protections are accorded primarily "to matters relating to marriage, family, procreation, and the right to bodily integrity." Albright v. Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). And, moreover, in extending these concepts to further bar "certain government actions regardless of the fairness of the procedures used to implement them," the Supreme Court has emphasized "that only the most egregious official conduct can be said to be arbitrary in the constitutional sense." County of Sacramento v. Lewis, 523 U.S. 833, 840, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quotations omitted). Importantly for purposes of this appeal, these constitutional protections apply to transgressions above and beyond those covered by the ordinary civil tort system; the two are not coterminous.

1. Contours of a Constitutional Tort

What differentiates a constitutional transgression from an ordinary common law tort is a "level of executive abuse of power ... that ... shocks the conscience." Id. at 846, 118 S.Ct. 1708. In other words, the executive abuse represents "arbitrary action of government" and requires a showing of government officials "abusing their power, or employing it as an instrument of oppression." Id. at 845-46, 118 S.Ct. 1708 (quotations and brackets omitted). While recognizing "no calibrated yard stick," id. at 847, 118 S.Ct. 1708, the Supreme Court instructs that the "constitutional concept of conscience shocking duplicates no traditional category of common-law fault," id. at 848, 118 S.Ct. 1708.

The Supreme Court has also explained, "[r]ules of due process are not ... subject to mechanical application in unfamiliar territory." Id. at 850, 118 S.Ct. 1708. What

shocks [the conscience] in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstance before any abuse of power is condemned as conscience shocking.

Id. Thus, the cases recognize that common-sense distinctions exist between force in one setting (say, a prison) and force in another (say, a kennel business). The case law also recognizes official conduct may be more egregious in circumstances allowing for deliberation (such as when a person is in custody or under governmental control or supervision) than in circumstances calling for quick decisions (such as police chases or prison disturbances). See id.

These distinctions in the application of force are not always facilely drawn. Given the latitude we ordinarily afford government actors operating in their official capacities, we recognize constitutional torts only "in the narrowest of circumstances," Becker, 494 F.3d at 922. The tortious conduct alleged "must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power.... [It] must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking." Livsey v. Salt Lake County, 275 F.3d 952, 957-58, (10th Cir.2001) (emphasis added) (quotation omitted)....