592 F.2d 381 (7th Cir. 1979), 77-2125, White v. Rochford

Docket Nº:77-2125.
Citation:592 F.2d 381
Party Name:Eugene WHITE, Shirley White, Barbara McDowell, a minor by Eugene White, her father and next friend and Ramon White, a minor by Eugene White, his father and next friend, Plaintiffs-Appellants, v. James M. ROCHFORD, Superintendent of Police, City of Chicago, P. J. Gleason, Frank Shannon, and R. Walsh, individually and as Police Officers of the City o
Case Date:February 13, 1979
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 381

592 F.2d 381 (7th Cir. 1979)

Eugene WHITE, Shirley White, Barbara McDowell, a minor by

Eugene White, her father and next friend and Ramon

White, a minor by Eugene White, his

father and next friend,

Plaintiffs-Appellants,

v.

James M. ROCHFORD, Superintendent of Police, City of

Chicago, P. J. Gleason, Frank Shannon, and R.

Walsh, individually and as Police

Officers of the City of

Chicago, Defendants-Appellees.

No. 77-2125.

United States Court of Appeals, Seventh Circuit

February 13, 1979

Argued Sept. 20, 1978.

Page 382

Joseph D. Palmisano, Rosenthal & Carnow, Chicago, Ill., for plaintiffs-appellants.

Philip L. Bronstein, Asst. Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before SPRECHER, Circuit Judge, KILKENNY, Senior Circuit Judge, [*] and TONE, Circuit Judge.

SPRECHER, Circuit Judge.

The issue presented by this case is whether police officers may, with constitutional impunity, abandon children and leave them in health-endangering situations after having arrested their custodian and thereby deprived them of adult protection. We hold that they may not, and accordingly, we reverse the district court's dismissal of a complaint alleging such facts and remand for trial.

I

This case arises from the district court's grant of a motion to dismiss the complaint. Accordingly, we must accept the allegations of the complaint as true in order to determine whether a cause of action under 42 U.S.C. § 1983 (1970) was stated. The complaint reveals that on the evening of October 24, 1976, the appellants, two minor children, as well as their cousin, another minor, were riding in an automobile driven by the appellants' uncle. While driving on the Chicago Skyway, a busy, limited-access highway, the uncle was stopped and arrested by the defendant police officers and charged with drag racing. Although the uncle pleaded with the officers to take the children to the police station or phone booth so that they could contact their parents, the defendant officers refused to provide any such aid. Instead, they left all three children in an abandoned automobile on the side of the road. Under exposure of the cold, the children finally realized that they had no alternative but to leave the car, cross eight lanes of traffic and wander on the freeway at night in search of a telephone. Upon finally reaching a telephone, the appellants called their mother. Since their mother had no car with which to search for and retrieve the children she called the Chicago Police Department, which again refused to lend any assistance. After a prolonged, but unspecified, length of time, the children were at last retrieved by a neighbor. As a result of this experience it is alleged that both children suffered mental pain and anguish and that the five-year-old child, an asthmatic, had to be hospitalized for one week.

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II

Thus, the issue before this court is whether the unjustified and arbitrary refusal of police officers to lend aid to children endangered by the performance of official duty violates the constitution where that refusal ultimately results in physical and emotional injury to the children. We hold that such conduct indisputably breaches the Due Process Clause.

Although it would be impossible to catalogue and to describe precisely each "liberty" interest protected by the Due Process Clause, 1 it can hardly be doubted that chief among them is the right to some degree of bodily integrity. As the Supreme Court recently stated: "Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for unjustified intrusions on personal security." Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1976). Accordingly the Due Process Clause is implicated where a policeman uses excessive force in the apprehension of a suspect, 2 withholds needed medical assistance from someone in his custody, 3 or even when a public school teacher inflicts corporal punishment on a student, 4 or forces him to cut his hair. 5

Not only does the Due Process Clause restrain undue incursions on personal security, but also it restrains state activities which are fundamentally offensive to "a sense of justice" or which "shock the conscience." Rochin v. California, 342 U.S. 165, 172, 173, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Although state actions prohibited under this Due Process analysis may involve incursions on personal physical integrity, such as the induced vomiting disapproved by the Court in Rochin, this need not always be the case. In Duncan v. Nelson, 466 F.2d 939 (7th Cir.), Cert. denied, 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 152 (1972), this court held that an involuntary confession could serve as a basis of a § 1983 action against the police officers responsible even though no physical force was used in the extraction of the confession and even though the officers could not have been

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held liable for the period of incarceration caused by the trial court's admission of the confession and resultant conviction of the defendant. As we noted there: "Although physical violence would ordinarily make damages greater and more easily ascertainable, we see no reason in either logic or experience to require . . . physical violence as a necessary prerequisite to suit under § 1983." Id. at 945.

Under either of these interpretations of the Due Process Clause, the complaint sufficiently alleged a deprivation of rights secured by the Constitution sufficient to state a claim under § 1983. Under the first theory it is sufficient that the defendants left helpless minor children subject to inclement weather and great physical danger without any apparent justification. Certainly this would be a patently clear intrusion upon personal integrity if the defendants had discharged children they were transporting on the Chicago Skyway on a cold evening, and it seems incongruous to suggest that liability should turn on the tenuous metaphysical construct which differentiates sins of omission and commission. 6 Indeed, the only factor differentiating

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this clear hypothetical from the case at hand is the fact that whereas the hypothetical clearly involves intentional actions, the present case may not evidence an intent to injure the children as much as a neglect of their safety. However, even this difference would not justify differentiating the cases. It is clearly established that although officials may not be held liable for simple negligence, they may be held liable for "gross negligence" or "reckless disregard" for the safety of others. 7 In the case before us the police could not avoid knowing that, absent their assistance, the three children would be subjected to exposure to cold weather and danger from traffic. This indifference in the face of known dangers certainly must constitute gross negligence. 8

Thus, as to the five-year-old plaintiff whose asthma was aggravated, his cause of action is well within that encompassed by § 1983 arising, as it does, from allegations of intentional or grossly negligent acts or failures to act leading to physical injury. Admittedly the case for the other defendant who alleges only psychological injury is somewhat closer, but we nonetheless feel that the protections of the Due Process Clause against arbitrary intrusions on personal security includes both physical and emotional well-being. This position arises directly from the recent Supreme Court opinion in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Carey involved issues of the appropriate measure of damages in a § 1983 action by high school students seeking monetary damages for their suspension from school without Due Process. The Court in discussing these issues enunciated the over-arching principle that "to further the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question . . . ." Id. at 258-59, 98 S.Ct. at 1050. The Court stated that even if the suspensions were justified, the plaintiffs would be entitled to damages upon proof of "mental and emotional distress," since one of the interests protected by the Due Process Clause is the individual's "feeling of just treatment" or "feeling that the government has (treated) him fairly." Id. at 261-64, 98 S.Ct. at 1051. If the Due Process Clause protects such an interest it is clear that its protection of personal security must necessarily extend to aspects of emotional well-being. Indeed, a child abandoned by policemen on a cold, dark highway must suffer more acutely from a feeling of unjust treatment than a high school student suspended from school.

Notwithstanding these considerations of the Due Process Clause's restrictions on unjustified intrusions on personal integrity, the second aspect of the Due Process Clause's protection the prohibition against state actions which "shock the conscience" or run counter to fundamental notions of fairness would also support a § 1983 cause of action here. Initially it should be pointed out that, as in Rochin, "(a)ll the . . . judges who have expressed themselves in this case have condemned the conduct in the strongest language." 342 U.S. at 174,

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72 S.Ct. at 210. It seems difficult to understand how conduct so clearly deserving of universal reprobation can be said to fall outside of the protections of the Due Process Clause, a clause which "inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses." Malinski v. New...

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