847 F.2d 1211 (7th Cir. 1987), 86-1783, Archie v. City of Racine

Docket Nº:86-1783.
Citation:847 F.2d 1211
Party Name:Betty J. ARCHIE, et al., Plaintiffs-Appellants, v. CITY OF RACINE, Ronald W. Chiapete, and George W. Giese, Defendants-Appellees.
Case Date:July 14, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1211

847 F.2d 1211 (7th Cir. 1987)

Betty J. ARCHIE, et al., Plaintiffs-Appellants,

v.

CITY OF RACINE, Ronald W. Chiapete, and George W. Giese,

Defendants-Appellees.

No. 86-1783.

United States Court of Appeals, Seventh Circuit

July 14, 1987

Argued Oct. 27, 1986.

Reargued En Banc Feb. 23, 1988.

Decided May 23, 1988.

Page 1212

Curry First, Perry, First, Lerner, Lundel & Kuhn, S. C., Milwaukee, Wis., Adrian Schoone, Schoone, Henkel, Ware & Fortune, S. C., Racine, Wisc., for plaintiffs-appellants.

Joseph E. Boyle, Office of City Atty., Racine, Wis., for defendants-appellees.

Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, and KANNE, Circuit Judges.

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EASTERBROOK, Circuit Judge.

The Bill of Rights limits the power of government. It insists that the government refrain from acting in certain spheres. Yet it is possible to restate most actions as corresponding inactions with the same effect, and to show that inaction may have the same effects as a forbidden action. So, for example, the Supreme Court has implied from the First Amendment "rights of access" to some information held by the government, reasoning that the right to speak implies a right to know, and that the government would be forbidden to suppress publication of the information if it were in private hands. E.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); cf. Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978).

Implication of a "positive" right (to have the government do something) out of the constitutional "negative" right (to be let alone) often depends on arguments about policy rather than on the text, structure, or history of the document; it may depend on seeing things from the perspective of collective benefits rather than the autonomy of the individual, a perspective that potentially increases the role of government in society, contrary to the plan of the Bill of Rights. Such a step therefore must be unusual and exceptionally well-justified.

Today's case presents a claim for the "positive" right of effective rescue services. It is the public version of the doctrine in tort law that no one is required to rescue another in distress, but that if he begins a rescue he had better not be negligent. Restatement (2d) of Torts Secs. 314, 323 (1965); Prosser & Keeton, The Law of Torts 378-82 (5th ed. 1984). The rule that no one need volunteer respects the autonomy of bystanders (and reduces the risk that one will be conscripted into a hazardous rescue); the rule that a volunteer must act competently reflects the belief that a rescue in process may lead superior rescuers to pass by, making the victim worse off than he would have been had the first rescuer not chanced on the scene. A simple application of this rule to governmental rescue services--the police, fire departments, child welfare agencies, "hot line" phone numbers, etc.--would mean that the government need not offer such services but must provide them competently if it does. Yet the Constitution does not incorporate all tort law. Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Perry v. FBI, 781 F.2d 1294 (7th Cir.1986) (en banc). We must decide today how far the constitutional rule departs from the common law rule and, if they differ, whether there is an independent constitutional obligation to provide efficacious rescue services.

I

At 7:19 a.m. on May 27, 1984, Les Hiles called the fire department of Racine, Wisconsin, to request a rescue squad for his friend Rena DeLacy. Hiles told George Giese, the dispatcher, that DeLacy was "hyperventilating" and could "hardly breathe". 627 F.Supp. 766, 767 (E.D.Wis.1986) (the district court's opinion contains a transcript of the dialogue). Hiles said that DeLacy needed medical care but could not walk to the hospital five blocks away. Giese inquired about DeLacy's age (43) and called her to the phone. She was breathing heavily. After DeLacy said that she had had a breathing problem "once" before, Giese told her to breathe into a paper bag until she calmed down. A first aid book recommends this for hyperventilation. 1

The advice did not work. At 3:03 p.m. Hiles called again, and Giese said: "Well, if she's hyperventilating, just, just have her do what I told you to do. She's going to have to breathe into that bag." 627 F.Supp. at 768. Hiles worried that DeLacy's heavy breathing would "wear her heart out"; Giese assured him that it

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would not. Hiles thanked Giese and hung up. Giese was right about the heart, but this was not DeLacy's problem. She died at home late that evening from respiratory failure, brought on by emphysema and pneumonia. A physician testified that emergency administration of oxygen, followed by other appropriate care, could have saved DeLacy's life.

The administrator of DeLacy's estate and her five living children sued Giese, the City, and its fire chief under 42 U.S.C. Sec. 1983, contending that Giese's failure to send an emergency squad violated the Equal Protection and Due Process Clauses of the fourteenth amendment. The plaintiffs' principal argument at the bench trial was that DeLacy's race (black) accounted for Giese's neglect. The district court found that Giese regularly sent rescue squads to help black persons, 627 F.Supp. at 770, and that DeLacy's race did not play a role in Giese's decision. This finding is not clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66 (1982).

The elimination of racial explanations left as a puzzle Giese's unwillingness to dispatch a rescue team--the only time he had declined to send help in his four years as a dispatcher. Giese testified that he did not think that DeLacy needed help urgently (perhaps because she denied having chronic breathing problems, though Giese did not spell this out) and also took into account Hiles's reputation, calling him a "jerk". The district court accepted Giese's description of his reasons but did not think much of them:

I find absurd Giese's apparent belief that his refusal to send the rescue squad can somehow be justified because Hiles was the one who asked for it. It is undisputed that Hiles has a reputation in Racine: he was in the County Jail at the time of the trial; he drinks; he is described as an iconoclast, a character; ... Nevertheless, on the tapes he is lucid; it is clear what he wants; his voice reflects the urgency of the situation. At trial he was articulate and perfectly capable, in my view, of judging when an emergency would exist, and also perfectly capable of describing it.

627 F.Supp. at 770-71. Moreover, the district court observed, the City's policy is to send a rescue squad to every emergency, and Fire Chief Chiapete had issued a press release stating that Giese exercised poor judgment. Id. at 769. Chiapete and one of his subordinates repeated that view in testimony at trial. The district court therefore characterized Giese's "conduct [as] stupid, or more charitably just poor judgment". Id. at 771.

That finding led the district court to enter judgment for the defendants. The court first concluded that Chiapete was not responsible for Giese's errors, so he had to be dismissed. 627 F.Supp. at 771. The City, which is not vicariously responsible for the acts of its employees and could be responsible only for its policies and the decisions of its policy makers, also received judgment. 2

Only Giese remained as a defendant. Relying on a series of cases in this circuit--Ellsworth v. City of Racine, 774 F.2d 182, 185 (7th Cir.1985); Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.1984); Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th

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Cir.1983)--the district court concluded that failure to rescue a person in distress does not violate the Due Process Clause. 627 F.Supp. at 771-73. See also, e.g., Donald v. Polk County, 836 F.2d 376, 383-84 (7th Cir.1988); DeShaney v. Winnebago County Dep't of Social Services, 812 F.2d 298, 301-04 (7th Cir.1987), cert. granted, --- U.S. ----, 108 S.Ct. 1218, 99 L.Ed.2d 419 (1988); Walker v. Rowe, 791 F.2d 507, 509-12 (7th Cir.1986); Hinman v. Lincoln Towing Service, Inc., 771 F.2d 189, 194 (7th Cir.1985); Beard v. O'Neal, 728 F.2d 894, 898-900 (7th Cir.1984); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). The government need not provide services, and these cases hold that if it does provide services it need not provide them competently. The district court allowed that the government must assist prisoners and others with whom it has some "special relationship" but concluded that "Rena DeLacy, personally, has no greater claim to a special relationship with Racine than do all other citizens of the city." 627 F.Supp. at 772.

A panel of this court reinstated the claim against Giese, 826 F.2d 480. We vacated that decision and set the case for rehearing en banc to consider the extent of a government's obligation to provide rescue services. We address three possibilities: that a violation of state law amounts to an unconstitutional "abuse of power"; that grossly negligent rescue operations violate the Constitution; and that the Constitution of its own force requires a state to supply effective rescue services.

II

The Due Process Clause provides: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law". Giese did not deprive DeLacy of her life. Emphysema and pneumonia did that. The government was not responsible for DeLacy's bronchial problems. It did not interfere with DeLacy's ability to...

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