857 F.2d 638 (9th Cir. 1988), 87-2165, Fargo v. City of San Juan Bautista

Docket Nº:87-2165.
Citation:857 F.2d 638
Party Name:Phillipe Dell FARGO, Plaintiff-Appellant, v. CITY OF SAN JUAN BAUTISTA, et al., Defendants-Appellees.
Case Date:September 16, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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857 F.2d 638 (9th Cir. 1988)

Phillipe Dell FARGO, Plaintiff-Appellant,


CITY OF SAN JUAN BAUTISTA, et al., Defendants-Appellees.

No. 87-2165.

United States Court of Appeals, Ninth Circuit

September 16, 1988

Submitted Feb. 8, 1988[*]

Phillipe Dell Fargo, Represa, Cal., in pro per.

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Allen F. Hunter, Gassett, Perry & Frank, San Jose, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before SKOPIL, REINHARDT and LEAVY, Circuit Judges.

REINHARDT, Circuit Judge:

Officer Richard Allerton of the City of San Juan Bautista Police Department shot Phillipe Fargo in the back while attempting to handcuff him. At the time Fargo was unarmed and lying on the ground motionless, on his stomach. Fargo sued Allerton under 42 U.S.C. Sec. 1983, claiming a violation of his fourteenth amendment rights. He also sued the Police Chief, as well as the City of San Juan Bautista Police Department and the City of San Juan Bautista. The district court granted defendants' motion for summary judgment on all claims. We reverse the district court's grant of summary judgment on the fourteenth amendment claim against Allerton, and affirm summary judgment on the rest.


When Officer Allerton responded to the scene of a shooting, witnesses described the suspects and the vehicle in which they had fled. After the officer left, he was advised, by radio, of a nearby traffic accident involving a vehicle that fit the description. Defendant Hurlbut, the Chief of the San Juan Bautista Police Department, gave Allerton permission to go to the accident site. When he arrived, a witness to the accident pointed out Fargo as the driver of the vehicle involved. The vehicle resembled the one reportedly used by the suspects.

Allerton approached Fargo with his gun drawn and ordered him to lie on his stomach. Fargo complied and Allerton did a pat-down search, as Fargo lay still. Allerton then placed Fargo's left hand in handcuffs and moved it to the middle of Fargo's back. He then took Fargo's right hand in his own, in which he was also holding his gun, and moved it toward the handcuffed hand. As Allerton started to handcuff Fargo's right hand, the gun discharged. The bullet entered Fargo's right shoulder.

At his deposition, Officer Allerton testified that the proper method of handcuffing in this situation was to put his gun back in his holster once the handcuffs were placed on the suspect's left hand. He admitted that he acted contrary to the way that he had been trained. Allerton also contended that when he was putting on the handcuffs his mind went blank, and he forgot everything that he had learned at the training academy. According to Allerton, he did not even hear his gun discharge; only when he stood Fargo up and pulled his shirt down did he realize that he had shot him.

Fargo claims that Allerton's conduct violated his fourteenth amendment rights. He argues on this appeal that Allerton's conduct was intentional or, in the alternative, reckless or grossly negligent, and not simply negligent, and so constitutes a deprivation of his liberty interest guaranteed by the due process clause. Fargo is also suing the San Juan Bautista Police Department and its Chief, as well as the City of San Juan Bautista, for not adequately training police officers in violation of the fourteenth amendment. He seeks monetary damages pursuant to section 1983.

The district court granted summary judgment in favor of all defendants. The order did not explain the basis of the court's ruling. It stated only that there were no genuine issues of material fact for trial. Fargo appeals.


Defendants argue that the shooting was accidental and not intentional, that Allerton's conduct constituted at the most mere negligence, and that Fargo has raised no genuine issue of material fact. Defendants rely on Daniels v. Williams, 474 U.S.

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327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), in which the Supreme Court concluded that the due process clause is not implicated by a state official's negligent act that causes unintended loss of, or injury to, life, liberty or property.

Daniels involved a prison inmate who brought a section 1983 action alleging that he was injured when he slipped on a pillow that was negligently left on a stairway by a prison official. The Court reasoned that a mere lack of due care "suggests no more than a failure to measure up to the conduct of a reasonable person," id. 474 U.S. at 332, 106 S.Ct. at 665, and that to hold that an injury caused by such conduct constitutes a due process deprivation would "trivialize" that clause, a clause "intended to secure the individual from the arbitrary exercise of the powers of government." Id. at 331, 106 S.Ct. at 665 (inner quotations omitted). However, the Court expressly left open the question "whether something less than intentional conduct, such as recklessness or 'gross negligence,' is enough to trigger the protections of the Due Process Clause." Id. at 334 n. 3, 106 S.Ct. at 667 n. 3. 1

In the companion case to Daniels, Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), three justices concluded that reckless conduct implicates the due process clause. Justice Brennan stated that "official conduct which causes personal injury due to recklessness or deliberate indifference, does deprive the victim of liberty within the meaning of the Fourteenth Amendment." Id. 474 U.S. at 349, 106 S.Ct. at 671 (Brennan, J., dissenting). Justice Blackmun, joined by Justice Marshall, first stated that negligent conduct that contains some element of abuse of government power constitutes a deprivation of a liberty interest under the due process clause. Id. at 353, 106 S.Ct. at 673 (Blackmun, J., dissenting.) He then added, "[e]ven if negligence is deemed categorically insufficient to cause a deprivation under the Fourteenth Amendment, recklessness must be sufficient." Id. at 358, 106 S.Ct. at 675.

The majority in Davidson did not address the arguments of the dissenting justices. It found that the official conduct constituted mere negligence, and so did not reach the question whether recklessness or gross negligence could constitute a deprivation of a liberty interest under the due process clause. Id. at 348, 106 S.Ct. at 670. We, however, considered the issue and resolved it in the affirmative in Wood v. Ostrander, 851 F.2d 1212 (9th Cir.1988).

In Wood, as in the case before us, defendant police officers claimed that their alleged conduct was at most negligent and thus did not constitute a violation of the due process clause under Daniels. The district court granted defendants' motion for summary judgment. 2 We held that because the police conduct at issue may have constituted "more than mere negligence", the due process claim was not barred by Daniels. Id. at 1214-15. Under Wood, grossly negligent or reckless official conduct that infringes upon an interest protected by the due process clause is actionable under section 1983. Id. at 1214-15. 3

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Accordingly, if Allerton's conduct constituted gross negligence or recklessness, as opposed to mere negligence, then it constitutes a deprivation of a liberty interest--i.e., the right to be free from excessive force 4--under the due process clause.


We must next decide if there exist any genuine issues of material fact as to whether Allerton's conduct constituted more than mere negligence. When reasonable persons may disagree as to whether particular conduct constitutes negligence, gross negligence or recklessness, the question is one of fact to be decided by a jury. 5

Admittedly, terms such as negligence, gross negligence and recklessness are at best inexact. As to the difference between negligence and gross negligence, we note that negligence suggests "no more than a failure to measure up to the conduct of a reasonable person," Daniels v. Williams, 474 U.S. at 332, 106 S.Ct. 665, while gross negligence generally signifies "more than ordinary inadvertence or inattention, but less perhaps than conscious indifference to the consequences." W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton

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On the Law of Torts Sec. 34, at 212 (5th ed. 1984) (hereinafter "Prosser & Keeton") (footnotes omitted). Gross negligence describes "a greater want of care" than is implied by ordinary negligence, Milwaukee & St. Paul Ry. Co. v. Arms, 91 U.S. 489, 495, 23 L.Ed. 374 (1876), and includes conduct evidencing "the want of even scant care or an extreme departure from the ordinary standard of conduct." Van Meter v. Bent Constr. Co., 46 Cal.2d 588, 594, 297 P.2d 644 (1956); see also Wager v. Pro, 603 F.2d 1005, 1010 (D.C.Cir.1979).

As to whether a jury could conclude that Allerton's conduct constitutes gross negligence, we observe that there is no indication that Fargo, while lying on the ground on his stomach with his hands at his side, did anything even remotely threatening to Allerton or anyone else. Once Allerton was atop Fargo, Fargo did not physically or verbally resist any of Allerton's actions. Allerton patted him down and determined that he was unarmed. Nevertheless, after handcuffing Fargo's left hand and moving it to the middle of his back, Allerton took Fargo's right hand in the same hand in which he held a gun and, while moving that right hand to the center of Fargo's back, pointed his gun at his head and then his shoulder. That conduct proximately caused the injury.

The question, ultimately, is whether Allerton's conduct constituted a greater want of care than ordinary negligence. Certainly, the fact that Allerton violated police procedures when handcuffing Fargo is relevant in determining the existence of gross negligence. The departmental procedures were intended to avert precisely the type of...

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