960 F.2d 1493 (10th Cir. 1992), 90-1166, Medina v. City and County of Denver

Docket Nº:90-1166.
Citation:960 F.2d 1493
Party Name:Gilbert MEDINA, Plaintiff-Appellant, v. The CITY AND COUNTY OF DENVER; Marty O'Dowd; Ralph Benfanti; Denver Police Officer Using Patrol Car 27 or 127 on 9/23/86 Between 5:00 and 6:00 p.m.; Rick Shook; Teri Rathburn; George Torsney; Robert Thomas; and Denver Police Officers John Does 1-5 Who Are Completely Unidentified at This Time; all individually
Case Date:March 31, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1493

960 F.2d 1493 (10th Cir. 1992)

Gilbert MEDINA, Plaintiff-Appellant,

v.

The CITY AND COUNTY OF DENVER; Marty O'Dowd; Ralph

Benfanti; Denver Police Officer Using Patrol Car 27 or 127

on 9/23/86 Between 5:00 and 6:00 p.m.; Rick Shook; Teri

Rathburn; George Torsney; Robert Thomas; and Denver

Police Officers John Does 1-5 Who Are Completely

Unidentified at This Time; all individually and in their

official capacities; Defendants-Appellees.

No. 90-1166.

United States Court of Appeals, Tenth Circuit

March 31, 1992

        Rehearing Denied May 11, 1992.

Page 1494

        John R. Holland (Kim L. Morris with him on the brief) of the Law Offices of John Robert Holland, Denver, Colo., for plaintiff-appellant.

        Robert M. Liechty (Theodore S. Halaby with him, on the brief) Halaby & McCrea, Denver, Colo., for defendants-appellees.

        Before TACHA, BALDOCK, and EBEL, Circuit Judges.

        EBEL, Circuit Judge.

        This case involves a byestander's claim against the City and County of Denver and several Denver police officers for injuries sustained when the bystander was struck by a suspected felon during a high speed automobile chase. The district court found that the bystander did not state a claim under 42 U.S.C. § 1983 because he did not demonstrate that "the police conduct was directed toward him," and therefore the court granted summary judgment for the defendants. We affirm the district court's order, but on different grounds.

        We affirm summary judgment for the police officers based on qualified immunity. It was not clearly established at the time of the accident that recklessness could give rise to section 1983 liability, nor was it clearly established that the police could be liable to third parties for injuries caused by a suspect. We affirm summary judgment for the City and County of Denver because the appellant failed to produce any evidence that Denver maintained a policy or course of conduct authorizing or condoning reckless, high speed chases that was deliberately indifferent to the rights of innocent bystanders.

        FACTS

        On September 23, 1986, the appellant was bicycling when a stolen white Cadillac driven by the suspect, Bryan Brown, struck and injured him. At the time of the impact, the suspect was the target of a high speed automobile chase conducted by Denver police officers. For purposes of its summary judgment ruling, the district court assumed certain critical facts in favor of the appellant: namely, that the police officers recklessly initiated the chase; that the streets were busy at the time of the chase; that the officers failed to follow regulations requiring proper communications with the police dispatcher; "that the officers exceeded their reported speeds; that the officers disobeyed a command order to stop the chase; and that the collision occurred because two police cars coming from opposite directions forced the suspect to turn directly into the [appellant] at the intersection." Dist.Ct.Op. at 1-2.

        Although the parties disputed other facts, the district court found that "these disputes were not material to this court's determination." Id. at 1. The court accepted as true the factual allegations of the amended complaint, as well as the affidavits filed with the appellant's brief. Id. The district court then ruled that "[t]he

Page 1495

[appellant's] case fails because none of the police conduct was directed toward him. It is well established that a section 1983 claim must be based upon an infringement of the plaintiff's individual rights. The abuse of official authority must be directed toward him, individually." Id. at 2. We affirm the district court's ultimate decision, although we do so on alternative grounds. 1

        ANALYSIS

        In the district court, the appellant asserted that the City and County of Denver and its police officers violated 42 U.S.C. § 1983 2 and "depriv[ed him] of his liberty interests protected under the Fourteenth Amendment Due Process Clause." Dist.Ct.Op. at 2. 3 Whatever may be the merits of a tort claim that the appellant might have brought against these defendants, we are not here evaluating a tort claim but rather a constitutional claim. In evaluating the appellant's constitutional claim, we must keep in mind that "[t]he Supreme Court has repeatedly warned that section 1983 must not be used to duplicate state tort law on the federal level." Washington v. District of Columbia, 802 F.2d 1478, 1480 (D.C.Cir.1986). The Fourteenth Amendment is not "a font of tort law to be superimposed upon whatever systems may already be administered by the States." Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976).

       I. Liability of the Officers

        The district court concluded that the appellant's due process claim against the police officers was invalid because the appellant failed to allege or show that the officers' reckless conduct was "directed toward him, individually." Dist.Ct.Op. at 2. The reasoning of the district court was as follows: Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986), Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986), and City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989), held that the due process guarantee applies only to deliberate deprivations of life, liberty, or property by a government official. And our opinion of Archuleta v. McShan, 897 F.2d 495, 498 (10th Cir.1990), established that the defendants' conduct must be directed at the victim before it can be regarded as deliberate as to that victim. We agree with the district court as to these propositions. However, the court then interpreted Archuleta and the above-cited Supreme Court authority to require that reckless conduct must be directed at a particular victim in order for it to be deliberate. We disagree with this last stage of the district court's reasoning. 4

Page 1496

        Practically every court that has considered the issue has concluded that reckless intent may violate section 1983. See Torres Ramirez v. Bermudez Garcia, 898 F.2d 224, 227 (1st Cir.1990); Wood v. Ostrander, 851 F.2d 1212, 1214-15 (9th Cir.1988), modified on reh'g, 879 F.2d 583 (9th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990); Nishiyama v. Dickson County, Tenn., 814 F.2d 277, 282 (6th Cir.1987); Bass v. Jackson, 790 F.2d 260, 262-63 (2d Cir.1986); Davidson v. O'Lone, 752 F.2d 817, 828 (3d Cir.1984), aff'd, 474 U.S. 344, 106 S.Ct. 662, 677, 88 L.Ed.2d 662 (1986); White v. Rochford, 592 F.2d 381, 385 (7th Cir.1979); Britt v. Little Rock Police Dep't, 721 F.Supp. 189, 192 (E.D.Ark.1989); Martin A. Schwartz & John E. Kirklin, 1 Section 1983 Litigation: Claims, Defenses, and Fees § 3.4, at 127 & n. 186 (2d ed. 1991). We have similarly concluded that recklessness states a claim under section 1983. Harris v. Maynard, 843 F.2d 414, 416 (10th Cir.1988); Archuleta, 897 F.2d at 499. However, reckless intent does not require that the actor intended to harm a particular individual; reckless intent is established if the actor was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences. Archuleta, 897 F.2d at 499 & n. 8. Thus, reckless intent involves disregard of a particular risk rather than intent to cause a particularized harm.

        For purposes of section 1983, it is not adequate to show that the defendant merely acted recklessly in disregard of a known risk to the public at large. Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980) (holding that decedent's death was too remote a consequence of the parole officers' action to hold them responsible under the federal and civil rights law). Rather, the defendant's conduct must be directed toward the plaintiff. However, given the fact that reckless intent involves an unreasonable disregard of a known great risk rather than intent to cause a particularized harm, the defendant's reckless conduct may be considered to be directed toward the plaintiff if the plaintiff is closely and immediately tied to the perceived substantial risk.

        We believe that reckless conduct can be considered directed toward the plaintiff if (1) the plaintiff is a member of a limited and specifically definable group, (2) the defendant's conduct specifically put the members of that group at substantial risk of serious, immediate, and proximate harm, (3) the risk was obvious or known, and (4) the defendant acted recklessly in conscious disregard of that risk. It is not, however, necessary that the defendant know the specific identity of each person within such a group in order for his conduct to be deemed directed toward the individuals within the group. See Nishiyama v. Dickson County, Tenn., 814 F.2d 277, 280 (6th Cir.1987); Britt v. Little Rock Police Dep't, 721 F.Supp. 189 (E.D.Ark.1989); Timko v. City...

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