Browder v. City of Albuquerque

• Decision Date: 02 June 2015
• Docket Number: No. 14–2048.,14–2048.
• Citation: 787 F.3d 1076
• Parties: Charles BROWDER, in his individual capacity and as personal representative of the Estate of Ashley Browder; Lindsay Browder; Donna Browder, Plaintiffs–Appellees, v. CITY OF ALBUQUERQUE; Adam Casaus, in his individual capacity, Defendants–Appellants, and Albuquerque Police Department; Raymond Schultz, in his capacity as APD Police Chief, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

787 F.3d 1076

Charles BROWDER, in his individual capacity and as personal representative of the Estate of Ashley Browder; Lindsay Browder; Donna Browder, Plaintiffs–Appellees

v.CITY OF ALBUQUERQUE; Adam Casaus, in his individual capacity, Defendants–AppellantsandAlbuquerque Police Department; Raymond Schultz, in his capacity as APD Police Chief, Defendants.

No. 14–2048.

United States Court of Appeals, Tenth Circuit.

June 2, 2015.

Deborah D. Wells of Kennedy, Moulton, & Wells, P.C., Albuquerque, NM (Stephanie M. Griffin, Assistant City Attorney, City of Albuquerque Legal Department, Albuquerque, NM, with her on the briefs), for Appellants.

Sean P. McAfee of the Law Office of Brian K. Branch, Albuquerque, NM (Brian K. Branch of the Law Office of Brian K. Branch, Albuquerque, NM and Erik R. Thunberg, Albuquerque, NM, with him on the brief), for Appellees.

Before TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

Opinion

GORSUCH, Circuit Judge.

Adam Casaus was going nowhere fast. After finishing his shift at the Albuquerque police department and on no one's business but his own, he got into his police cruiser, flipped on the emergency lights, and drove off at an average of about 66 miles an hour on city surface streets through ten different intersections over a stretch of 8.8 miles. Then he reached an eleventh intersection. The light was red. He pressed the gas pedal, ignored the light, and the result was a terrible crash. Ashley Browder died. Her sister, Lindsay, suffered grave injuries. Sergeant Casaus eventually found himself criminally charged with reckless vehicular homicide in state court. Now Lindsay and her parents have brought this civil suit seeking damages under 42 U.S.C. § 1983. Sergeant Casaus asked the district court to dismiss the Browders' complaint on grounds of qualified immunity. The district court declined that relief and so do we.

The Browders' suit follows this course. Section 1983 permits citizens to sue for any assault on their constitutional rights that occurs “under color of” state law. The Supreme Court has read this language broadly, as encompassing even some situations in which state law enforcement officers actually violate state law. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) ). But see Crawford–El v. Britton, 523 U.S. 574, 611, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (Scalia, J., dissenting) (citing Monroe, 365 U.S. at 224–25, 81 S.Ct. 473 (Frankfurter, J., dissenting)). Both sides before us accept that this case involves one of those situations and so we proceed on the same assumption, accepting (without deciding) that Sergeant Casaus's conduct came “under color of” state law. Of course, though, that's just the beginning of things for § 1983 is but a means to an end, a vehicle for bringing claims, and it remains incumbent on the plaintiff to identify some violation of a constitutional (or other federal) right.

In this case, the Browders point to the Fourteenth Amendment. More particularly, they point to the Amendment's due process clause which prohibits the government from depriving individuals of their lives, liberty, or property without due process of law. The Supreme Court has interpreted this language as guaranteeing not only certain procedures when a deprivation of an enumerated right takes place (procedural due process), but also as guaranteeing certain deprivations won't take place without a sufficient justification (substantive due process). Some suggest this latter doctrine with the paradoxical name might find a more natural home in the Privileges and Immunities Clause; others question whether it should find a home anywhere in the Constitution. But, the Supreme Court clearly tells us, home it has and has where it is. At the same time, the Court has warned that the doctrine should be applied and expanded sparingly “because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) ) (internal quotation mark omitted).

Under what guideposts the Court has so far staked out, our first job in assessing a substantive due process claim is to make a “careful description” of the allegedly violated right. Id. at 721, 117 S.Ct. 2258 (internal quotation marks omitted). Then we must ask whether that right counts as a “fundamental” one, a limited class of rights sometimes described by the Court as those that can fairly claim to be “objectively, deeply rooted in this Nation's history and tradition.” Id. at 720–21, 117 S.Ct. 2258 (internal quotation marks omitted); see also Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937) (describing fundamental rights as those “implicit in the concept of ordered liberty”). Next we must ask whether the government's alleged infringement of the right in question was “direct[ ]” and “substantial[ ].” Zablocki v. Redhail, 434 U.S. 374, 387, 98 S.Ct. 673, 54 L.Ed.2d 618 (1978).

If the plaintiff's injury meets these tests we then assess whether the government can muster sufficient justification for its actions. If the government infringed the plaintiff's right through legislative activity, the Supreme Court has told us to inquire whether the legislation is “narrowly tailored to serve a compelling state interest.” Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (quoting Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) ) (internal quotation mark omitted). If the infringement is the result of executive action, the Supreme Court has instructed us to ask whether that action bears a “reasonable justification in the service of a legitimate governmental objective” or if instead it might be “characterized as arbitrary, or conscience shocking.” County of Sacramento v. Lewis, 523 U.S. 833, 846, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting Collins, 503 U.S. at 128, 112 S.Ct. 1061 ). Even if the plaintiff can satisfy these standards, when a state tort suit can provide the same relief as a federal § 1983 claim and there's no reason to suppose a state court won't fairly hear the claim it is an open question whether federal courts—though empowered to hear the suit—should abstain in favor of the state remedial processes. See Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) ; Lewis, 523 U.S. at 840 n. 4, 118 S.Ct. 1708 (citing Albright v. Oliver, 510 U.S. 266, 281–86, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (Kennedy, J., concurring in the judgment)); see also Concurrence, post.¹

In cases involving executive action like the one before us still another question arises: how are we supposed to go about trying to distinguish executive actions that Lewis describes as “reasonably justified in the service of legitimate governmental objectives” from those it describes as “arbitrary or conscience shocking”? This area remains very much unchartered and the conscience-shocking test does seem (in Glucksberg's words) more than a little “open-ended,” but the Court has offered us two further thoughts by way of direction.

First, it's told us to consult history and precedent. See Lewis, 523 U.S. at 847 n. 8, 118 S.Ct. 1708 ; id. at 857, 118 S.Ct. 1708 (Kennedy, J., concurring); id. at 860–62, 118 S.Ct. 1708 (Scalia, J., concurring in the judgment). The constitutional due process guarantee traces its roots to the Magna Carta and the effort to deny capricious kings the “power of destroying at pleasure,” what Blackstone called the “highest degree” of tyranny. 1 William Blackstone, Commentaries *133. So perhaps it comes as little surprise that we should look to the history of efforts to tame arbitrary governmental action to determine whether and under what conditions the conduct at issue is accepted as a necessary incident of organized society—or whether it is associated with the sort of whimsical sovereign the due process guarantee was designed to guard against.

Second, the Court has suggested that careful attention to mens rea can help. Lewis, 523 U.S. at 849–50, 118 S.Ct. 1708. Negligence toward a fundamental right, we are told, will never suffice to suggest the sort of caprice that rises to the level of constitutional concern. Meanwhile, in cases where forethought is feasible some form of recklessness to the plaintiff's fundamental right may be enough: our tradition suggests that we can and should usually expect more from the sovereign than deliberate indifference to fundamental rights like life, liberty, and property. Still, in cases where the legitimate governmental objective is so pressing that the luxury of forethought doesn't exist (e.g., responding to an emergency or dealing with a prison riot), the Court has held that to establish inappropriate caprice even more is required. In these cases even an intent to undertake the act that impairs the plaintiff's fundamental right isn't enough: a further intent to impair the plaintiff's fundamental right—what's sometimes called “specific” intent—is necessary. The Court has adopted this high standard in recognition of the fact that in emergency situations officers face “obligations that tend to tug against each other”—the duty to come to the aid of citizens in distress and the duty to protect the rights of those who may innocently stand in the way—and little time in which to deliberate their resolution. Id. at 853–54, 118 S.Ct. 1708.

Attempting to follow as best we can what guidance we've received in this murky area, we believe we can say this much about the case at hand. No one before us disputes that Ashley's death and the damage done to Lindsay's person count as direct and substantial impairments of their fundamental right to life, so we can and do take that much as given. And while the line that separates executive actions that are “reasonably...