Britt v. Little Rock Police Dept., LR-C-88-875.

• Decision Date: 29 August 1989
• Docket Number: No. LR-C-88-875.,LR-C-88-875.
• Citation: 721 F. Supp. 189
• Parties: Dorothy BRITT, Individually and as Administratrix of the Estate of Marilyn D. York; Kenny York; Willie York; and Viola Dodson, Plaintiffs, v. LITTLE ROCK POLICE DEPARTMENT, Little Rock Police Officer Stan Harmon, In His Individual Capacity; Jim Vandiver, Individually and in His Official Capacity as Acting Chief, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

721 F. Supp. 189

Dorothy BRITT, Individually and as Administratrix of the Estate of Marilyn D. York; Kenny York; Willie York; and Viola Dodson, Plaintiffs, v. LITTLE ROCK POLICE DEPARTMENT, Little Rock Police Officer Stan Harmon, In His Individual Capacity; Jim Vandiver, Individually and in His Official Capacity as Acting Chief, Defendants.

No. LR-C-88-875.

United States District Court, E.D. Arkansas, W.D.

August 29, 1989.

David S. Mitchell and Robert M. McHenry, Little Rock, Ark., for plaintiffs.

Mark Stodola, City Atty., Little Rock, Ark., for defendants.

ORDER

EISELE, Chief Judge.

Plaintiffs in this civil rights action are the administratrix of the estate of Marilyn Denise York (who was killed in a car crash following a police officer's pursuit of a car thief), members of her family and the owner of an automobile damaged in the collision. Defendants are a Little Rock police officer, the Little Rock Chief of Police and the City of Little Rock.

Plaintiffs allege that the officer's pursuit of the suspect was, for reasons alleged in the Complaint, in "wanton and reckless disregard to the safety of the public," that the officer "breached his duty to use due care, or at least a duty to refrain from reckless, willful or wanton conduct," that the officer "acted with total disregard to the safety of the public," and that he acted with "willful, reckless and wanton negligence" in conducting the chase. This conduct is alleged to have deprived plaintiffs of constitutional rights secured to them by the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and it is asserted that plaintiffs are entitled to relief under 42 U.S.C. § 1983. The police chief and the city are alleged to be legally responsible for the injuries the officer inflicted on Ms. York and the other plaintiffs.

Defendants have moved for summary judgment. After considering the evidentiary materials filed in support of and in opposition to the motion, the Court concludes that plaintiffs have failed to present a submissible case that the officer's conduct violated any of their Constitutional rights. The claims against him must therefore be dismissed. Furthermore, if the officer did not inflict Constitutional injury on plaintiffs, it follows that the police chief and the city cannot be liable for causing, allowing or failing to prevent any such injury, and the claims against them must likewise be dismissed.

PROCEDURAL POSTURE

All of the defendants have moved to dismiss the complaint. Attached to the motions were various papers, so the Court notified plaintiffs that the motions would be deemed ones for summary judgment. See Order of March 28, 1989; Fed.R.Civ.P. 12(b), 56. Plaintiffs were granted approximately 6 weeks within which to take requested discovery and to respond to defendants' motions. Fed.R.Civ.P. 56(f). They have timely filed their response, with supporting evidence. Defendants have replied with additional evidentiary material.

Plaintiffs have also moved for summary judgment. Defendants have responded to that motion, and all the issues raised in the cross motions are now ripe for adjudication.

UNTENABLE CLAIMS

The Amended Complaint alleges violations of the First, Fifth, Sixth and Fourteenth Amendments to the Constitution. Most of these are not even colorable, and are not argued in plaintiffs' papers. Plaintiffs do not allege that any of the rights protected by the First and Sixth Amendments have been violated. The Fifth Amendment only applies to the federal government, which is not alleged to be involved here. Finally, there is no argument that plaintiffs have been deprived of procedural due process. Thus, the claims for relief under those provisions may be dismissed in the early going.

What plaintiffs actually complain of are alleged deprivations of life, liberty and property interests in violation of the substantive due process component of the Fourteenth Amendment. Plaintiffs concede as much in their Response to Motion to Dismiss Amended Complaint: "Plaintiffs' complaint states sufficient facts to support its allegation that defendants violated the constitutional right to substantive due process by acting with gross negligence or with reckless indifference to Marilyn Denise York's safety."

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that 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).

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. "The standard for granting summary judgment mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a)." Anderson v. Liberty Lobby, 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552-3, 91 L.Ed.2d 265 (1986).

OFFICER'S LIABILITY

Defendants' motion assumes that the conduct of the officer proximately caused the death of Ms. York, but argues that he is nevertheless not liable under section 1983 because his conduct did not violate any of plaintiffs' Constitutional rights. There are two plausible avenues to analyzing plaintiffs' claims. A culpable deprivation of life, liberty or property by one acting under color of state law could be viewed as a violation of substantive due process. Alternatively, the injuries inflicted on plaintiffs could be considered to be part of the officer's attempted seizure of the fleeing suspect, so that an unreasonable pursuit in the nature of excessive force would violate the Fourth Amendment, applied to the states by the Fourteenth.

Originally, the parties' arguments focused on substantive due process, but subsequent Supreme Court and Eighth Circuit decisions suggest that the search and seizure analysis is more appropriate. The Court was initially inclined to view the issue as one of substantive due process, because the plaintiffs are not the person the officer was trying to seize and their injury is not easily thought of as a seizure. See Brower v. County of Inyo, ___ U.S. ___, 109 S.Ct. 1378, 1380, 103 L.Ed.2d 628 (1989) ("Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, but the detention or taking itself must be willful.... a Fourth Amendment seizure occurs only when there is a governmental termination of freedom of movement through means intentionally applied.") But a recent Eighth Circuit decision construes Graham v. Connor, ___ U.S. ___, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) as requiring that all injuries arising "in the context of an arrest or investigatory stop" be analyzed under "the fourth amendment's prohibition against unreasonable search and seizure," even if the plaintiffs were not the targets of the attempted seizure. Roach v. The City of Fredericktown, 882 F.2d 294, 297 (1989). Both approaches will be discussed here.

We will begin with substantive due process, the residual concept which guards against improper governmental deprivations not expressly prohibited by express provisions of the incorporated portions of the Bill of Rights. Defendants argue that the officer was at most negligent in his actions, and that negligence does not rise to the level of a Constitutional deprivation. Plaintiffs claim that the officer was grossly negligent or reckless. It is clear that negligence of state actors, their failure to exercise ordinary care, will not support a cause of action under § 1983. That statute does not constitutionalize common law remedies just because the tortfeasor is acting under color of state law. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986). Section 1983 does not create a cause of action for "survivors of an innocent bystander mistakenly shot by a policeman or negligently killed by a sheriff driving a government vehicle." Paul v. Davis, 424 U.S. 693, 698, 96 S.Ct. 1155, 1159, 47 L.Ed.2d 405 (1976).

It is also clear that an intentional deprivation of life, liberty and property interests by a state actor does state a cause of action under § 1983, and that "intentional" actions include such culpable mental states as callous indifference. Id. But it is not clear "whether something less than intentional conduct, such as recklessness or `gross negligence,' is enough to trigger the protections of the Due Process Clause." Daniels, 474 U.S., at 334 n. 3, 106 S.Ct., at 666 n. 3.

Cases after Daniels and Davidson have generally agreed that recklessness, which may be defined as "intentionally doing an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow," Prosser & Keeton, Torts, at 212, is sufficiently like intent that due process is implicated. But there is a controversy over whether gross negligence, meaning very great negligence or the want of even slight care, Prosser & Keeton, supra, at 211, is enough. City of Canton, Ohio v. Harris, ___ U.S. ___, 109 S.Ct. 1197, 1204 n. 7, 103 L.Ed.2d 412 (1989); Archie v. City of Racine, 847 F.2d 1211, 1219-20 & 1220 n. 8 (7th Cir.1988) (en banc).

The Eighth Circuit has addressed the question, though it has not given an absolutely clear answer. Most recently, in Roach, the Court held that the pursuing officer's "conduct does not rise to the level of gross negligence and, therefore, most certainly does not rise to the level of conduct which would...