Kostka v. Hogg

• Citation: 560 F.2d 37
• Decision Date: 04 August 1977
• Docket Number: No. 76-1567,76-1567
• Parties: Alan S. KOSTKA et al., Plaintiffs, Appellants, v. David W. HOGG et al., Defendants, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

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560 F.2d 37

Alan S. KOSTKA et al., Plaintiffs, Appellants, v. David W. HOGG et al., Defendants, Appellees.

No. 76-1567.

United States Court of Appeals, First Circuit.

Aug. 4, 1977.

Edward R. Dean, Jr., Chelmsford, Mass., with whom James M. Geary, Jr., Chelmsford, Mass., was on brief, for appellants.

Philander S. Ratzkoff, Boston, Mass., with whom Philip S. Nyman, Lowell, Mass., Charles W. O'Brien, Alan Rindler, and Parker, Coulter, Daley & White, Boston, Mass., were on brief, for appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and DOOLING ^*, District Judge.

COFFIN, Chief Judge.

The damages action authorized by 42 U.S.C. § 1983 is limited in several significant respects: (1) municipalities and other political subdivisions are not subject to suit, see Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), (2) only persons who were directly involved in the wrongdoing may be held liable, see Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), and (3) officials enjoy either an absolute, see, e.g., Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), or qualified, see, e.g., Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), immunity from damages liability. This appeal is an attempt to broaden the exposure of state actors to damages liability by inferring a right of action directly under the Fourteenth Amendment.

Plaintiffs-appellants are the administrators of the estate of Stephen R. Kostka, who was shot and killed by a Westford, Massachusetts police officer, David Hogg, in the course of an arrest. To redress an alleged violation of Kostka's constitutional rights, plaintiffs instituted this action against Hogg, several alleged accomplices, the town of Westford's police chief Joseph Connell, and the town of Westford itself. In addition to alleging that the shooting of Kostka by Hogg deprived Kostka of his constitutional rights, the complaint stated that Connell and the town of Westford "failed in their duty to instruct, train, educate, and control the defendant Hogg in the exercise of his duties as a police officer." Plaintiffs claimed a right to recover against all the defendants under § 1983, and, to the extent § 1983 was unavailable, they asserted a right to recover directly under the Fourteenth Amendment. The district court dismissed the claims against Connell and the town of Westford, reasoning that neither the police chief nor the town could be held vicariously liable either under § 1983 or directly under the Fourteenth Amendment. The district court made these dismissals final judgments pursuant to Fed.R.Civ.P. 54(b), and this appeal followed.

We first consider the claim against Connell. Plaintiffs do not seriously contend that § 1983 authorizes damages liability where an individual had no personal role in the wrongdoing. Such an actor by definition lacks the bad faith required to expose him to damages liability under § 1983. ¹ See Wood v. Strickland, supra; Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Even if we assume that an implied right of action might exist against Connell under the Fourteenth Amendment, the policies underlying the qualified privilege for officials sued under § 1983 would be fully applicable to a damages action based on the Fourteenth Amendment. The policies in question essentially avoiding inhibiting individuals from performing governmental functions have equal force regardless of the source of the plaintiff's right of action. See Kermit Constr. Co. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1, 3 n. ^* (1st Cir. 1976); Bivens v. Six Unknown Named Federal Narcotics Agents, 456 F.2d 1339, 1346-48 (2d Cir. 1972), on remand of, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (good faith defense to actions arising under Fourth Amendment).

Although the claim based upon Connell's breach of his duty to instruct and control Hogg seemingly alleges personal involvement in the wrongdoing, ² analysis reveals that it suffers from the identical defect. A police chief is under no general federal constitutional duty to take positive action to reduce the incidence of unconstitutional conduct by police officers on the beat, see Rizzo v. Goode, supra 423 U.S. at 376, 96 S.Ct. 598. To the extent, therefore, that plaintiffs rely upon the breach of this duty alone, they fail even to plead a constitutional violation by Connell. But we do not read plaintiffs' complaint this narrowly. They seem also to suggest that Connell's failure to take positive action caused the constitutional violations and, as such, is actionable either under § 1983 or the Fourteenth Amendment. But even so interpreted, plaintiffs' complaint fails to state a claim for damages. To negative Connell's official immunity, plaintiffs would have to establish active, bad faith participation in the wrongdoing. For example, if the police chief ordered the constitutional violations or possibly, if he deployed or hired the officer under conditions which he should have known would create a threat to the constitutional rights of the citizenry, damages may well be proper. See Scheuer v. Rhodes, supra. Here, plaintiffs made no such allegation. Since it was their burden to plead facts establishing both the constitutional wrong and the inapplicability of defendant Connell's good faith defense, see Gaffney v. Silk, 488 F.2d 1248, 1250-51 (1st Cir. 1973); cf. Stadium Films v. Baillargeon, 542 F.2d 577, 579 (1st Cir. 1976), the dismissal of the claim against Connell was proper. ³

Plaintiffs' claim against the town of Westford requires additional analysis, since the immunity of the town may differ from that of an official. If Hogg or some other municipal official did act in bad faith, the authorization of recovery against a deep pocket defendant like the municipality would not be inconsistent with the Supreme Court decisions concerning official immunity, although there would be other objections. If, on the other hand, the constitutional wrong were the result of a good faith action of a municipal employee, it is not self evident that the overall public interest requires that the municipality always be immune. While the imposition of damages liability on a political subdivision could conceivably result in chilling the performance of some official functions, the likelihood of substantial inhibition is not great since the officials will not be held personally liable. In light of the substantial countervailing interest in compensating the victims of unconstitutional conduct, it might well be that, if there were a right of action against governmental bodies, their immunity from damages might be significantly narrower than that of the individual officials. Without deciding anything about this question, we turn to the issue of liability in damages of the municipality.

Plaintiffs' basic contention may be stated simply. They appear to concede that they have no right of action against the town of Westford under § 1983, but they rely upon Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) for the proposition that a right of recovery should be created directly under the Fourteenth Amendment. ⁴ They correctly assert that we have jurisdiction over their claim against Westford under 28 U.S.C. § 1331, ⁵ and they read Bivens as establishing that a federal court with subject matter jurisdiction over a claim has complete freedom to award damages against wrongdoers if it believes the damages liability is sound as a matter of policy. Because they maintain that the creation of vicarious municipal liability under the Fourteenth Amendment will be an effective means of implementing the underlying constitutional guarantees, they suggest we must infer a right of action. While we are willing to assume arguendo that the creation of such liability would be sound policy, we cannot read Bivens as granting federal courts such freedom to fashion constitutional remedies.

In Bivens, the Court created a private right of action for damages against federal officers who violate the Fourth Amendment. Although the opinion for the Court does contain language that is generally supportive of plaintiffs' reading of it, the Court's methodology belies any claim that Bivens should be understood as recognizing sweeping federal judicial power to create damages remedies to vindicate constitutional rights.

The Court began its analysis by carefully evaluating the adequacy of the only existing alternative remedy, a state law tort action against the federal officers in which the Fourth Amendment would operate only to deprive federal agents of the defense that they were acting pursuant to federal authority. Because the interests protected by state tort law may not include those protected by the Fourth Amendment, the Court refused to remit the plaintiffs to a state law tort action, holding that a showing of a Fourth Amendment violation should be "both necessary and sufficient to make out plaintiff's cause of action." Id. at 390-95, 91 S.Ct. at 2004. The Bivens Court had no difficulty authorizing a damages award. Because there had been "no explicit Congressional declaration that persons injured by the Fourth Amendment may not recover money damages from the agents but must instead be remitted to another remedy, equally effective in the (eyes) of Congress", id. at 397, 91 S.Ct. at 2005, the Court rejected the government's and the Court of Appeals' assertion that the test should be whether a damages remedy was necessary to avoid nullifying the Fourth Amendment. Id.; see Bivens v. Six Unknown Named Federal Narcotics Agents, 409 F.2d 718, 723 (2d Cir. 1969), rev'd, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Because the case also did not involve "special factors counseling hesitation in the absence of affirmative action by Congress", the question for the Court...