Andrews v. Wilkins

• Decision Date: 31 May 1991
• Docket Number: No. 90-5225,90-5225
• Citation: 934 F.2d 1267,290 U.S.App. D.C. 95
• Parties: , 59 USLW 2740 Doris ANDREWS and Otis Andrews, Appellants, v. Thomas H. WILKINS, Individually and in his Official Capacity, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1267

934 F.2d 1267

290 U.S.App.D.C. 95, 59 USLW 2740

Doris ANDREWS and Otis Andrews, Appellants, v. Thomas H. WILKINS, Individually and in his Official Capacity, et al.

No. 90-5225.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 25, 1991.

Decided May 31, 1991.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 88-CV-1326).

James E. McCollum, Jr., with whom Tilman L. Gerald was on the brief, for appellants.

John C. Cleary, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John D. Bates and R. Craig Lawrence, Asst. U.S. Attys., were on the brief, for appellees.

Before MIKVA, Chief Judge, and D.H. GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

Dissenting opinion filed by Chief Judge MIKVA.

SENTELLE, Circuit Judge:

Appellants Doris and Otis Andrews brought this action against officials and representatives of the United States Park Police, United States Department of the Interior, and the United States, for the wrongful death of the Andrewses' son, Gino Andrews ("Andrews"). The district court granted summary judgment against appellants on their claims of both constitutional and common law torts against appellees. After reviewing appellants' allegations of error, we affirm the decision of the district court.

I. FACTUAL BACKGROUND

This case arises from a bizarre series of events that began when Andrews urinated against the exterior wall of a public restroom facility at Hains Point in East Potomac Park. United States Park Police Officer Thomas Wilkins approached Andrews and advised him that he was being charged with urinating in public, and that Andrews would have to accompany Wilkins to the Park Police station to post collateral. When Wilkins moved toward Andrews with handcuffs, Andrews fled, running around the restrooms, across the East Potomac Golf Course, and finally reaching the Washington Channel. With Wilkins in pursuit, Andrews climbed down into the Channel and began swimming toward Fort McNair on the opposite bank.

Wilkins pursued Andrews, first on foot, and then on his police scooter. Wilkins continuously notified the Park Police dispatcher of Andrews's actions and, when Andrews entered the Channel, directed the dispatcher to contact the Metropolitan Police Department Harbor Patrol. The dispatcher also sent additional Park Police patrol vehicles and a Park Police helicopter to the scene of Andrews's entry into the Channel.

Andrews swam approximately thirty to forty feet across the Channel, then turned back toward the Hains Point shore. At this point, it appeared that he began to tire and was in danger of drowning. After some hesitation and at the urging of a bystander, Wilkins went to one of the patrol cars, removed a life ring attached to fifty feet of rope, and threw it toward Andrews. The ring did not reach Andrews, and the rope tangled. One of Wilkins's fellow officers radioed the dispatcher to send another patrol car with a life ring, while Wilkins, without apparent urgency, retrieved the life ring, untangled the rope, walked closer to the Channel's edge, and threw the ring within approximately two feet of Andrews. Andrews was by this time apparently unconscious and unable to reach for the life ring.

Wilkins then removed his gun belt in preparation for a swimming rescue, but was dissuaded by fellow officers, who pointed out a District of Columbia Fire Boat and a private motor boat approaching Andrews. The officers hailed the private boat, piloted by George and Jennifer Sozio, who guided it alongside Andrews. Ms. Sozio extended her leg into the water for Andrews to grab onto, then, seeing that Andrews was unconscious and face-down in the water, reached toward Andrews with her arm. At the direction of the police, she also threw a life jacket toward Andrews. Ms. Sozio yelled to the police that Andrews had gone underwater, stating, "I need to go in, I've been trained." They directed her not to go in the water, stating that "[h]e's an escaped prisoner, and could be dangerous."

Instead, the police signalled the Sozios to bring their boat to the Channel's edge, where a police officer boarded and directed them to return to Andrews. Although the Sozios returned their boat to where the life jacket was floating, Andrews's body had dropped out of sight. The officer told Ms. Sozio that Andrews "was an escape [sic] prisoner and was running from us. He jumped into the water himself, and I was afraid he was dangerous and would commandeer the boat, and force you to take him some where [sic], or take you as a hostage."

Approximately one-half hour later, the Harbor Patrol recovered Andrews's body from the Washington Channel. The Police immediately transported Andrews to the George Washington Hospital Emergency Room, where he was pronounced dead. The autopsy revealed the presence of PCP, marijuana residues, and alcohol in Andrews's bloodstream at the time of his death.

II. DISCUSSION

A. Appellants' Constitutional Tort Claims

Appellants claim that police actions toward Andrews--failing to rescue him and interfering with the Sozios' private efforts to rescue him--deprived Andrews of his Fifth Amendment right to life, liberty, and property without due process of law, thereby making out a constitutional tort if the police were acting under federal law, or a violation of 42 U.S.C. Sec. 1983 if the police were acting under District of Columbia law. As the district court properly noted below, a constitutional tort claim against the government is subject to a heightened pleading standard. Smith v. Nixon, 807 F.2d 197, 200 (D.C.Cir.1986). To meet this standard, a claimant must make "nonconclusory allegations" that are "sufficiently precise to put defendants on notice of the nature of the claim and enable them to prepare a response and, where appropriate, a summary judgment motion on qualified immunity grounds." Hobson v. Wilson, 737 F.2d 1, 29 (D.C.Cir.1984).

Qualified immunity is available to federal and state officials charged with constitutional torts so long as "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (citations and footnote omitted). See also Harris v. District of Columbia, 932 F.2d 10, 13 (D.C.Cir.1991) ("Officials are liable for committing constitutional torts, ... only if they knew, or were unreasonable in not knowing, that the behavior violated the Constitution."). Applying this standard, we must agree with the district court that appellants "have failed to show that defendants violated a 'clearly established' right, such that a reasonable officer could or should have known that he was violating the Constitution." Memorandum Opinion, No. 88-1326, slip op. at 9, 1990 WL 102777 (D.D.C. July 11, 1990).

First, the police, as state officers, had no constitutional duty to rescue Andrews. See Bradberry v. Pinellas County, 789 F.2d 1513 (11th Cir.1986) (county had no constitutional duty to provide protective services to its citizens, and thus was not liable when its lifeguards failed to save decedent); cf. also DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 197, 109 S.Ct. 998, 1004, 103 L.Ed.2d 249 (1989) ("a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause"); Archie v. City of Racine, 826 F.2d 480 (7th Cir.1987) (emergency dispatcher's negligent failure to send an ambulance did not unconstitutionally deprive decedent of life without due process); accord, Jackson v. Byrne, 738 F.2d 1443 (7th Cir.1984). Thus, the police officers' failure to rescue Andrews is not a constitutional tort.

Nor is it a constitutional violation for a state officer to attempt an ineffectual rescue. See Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.1983) (police action directing traffic away from accident scene, thus barring potential private rescue attempts, does not constitute deprivation of life without due process). Indeed, since "the federal Constitution does not require states to expend their resources to guard against such accidents, ... it would be anomalous to hold them liable when they attempt to do so and fail in their effort." Bradberry, 789 F.2d at 1517 (citation omitted). Thus, appellants' allegations that the police were negligent in their rescue attempts is not a constitutional tort.

On the other hand, at least one circuit has held that police action deliberately or recklessly interfering with ongoing private rescue efforts may establish a constitutional tort. In Ross v. United States, 910 F.2d 1422 (7th Cir.1990), the Seventh Circuit held that an Assistant Deputy Sheriff committed a constitutional tort by interfering with private rescue efforts to save a twelve-year old child who drowned in Lake Michigan. Although two lifeguards, two fire fighters, one police officer, and two civilian scuba-divers arrived at the scene almost immediately, the local Deputy Sheriff barred all rescue attempts, asserting that it was county policy to allow only "authorized" fire department divers to engage in rescues. Potential rescuers were thus forced to stand idle until the "authorized" fire department divers arrived at the scene thirty minutes after the child had entered the water.

The Seventh Circuit found that the Deputy was aware of "a known and significant risk of death," but "consciously chose a course of action that ignored the risk." Ross, 910 F.2d at 1433 (citation omitted). The court therefore concluded that "a reasonable police officer in Deputy Johnson's position should have known that he could not use [his] authority to prevent private rescue efforts." Id. Accordingly, the claimants made out a valid claim for a constitutional tort, against which the Deputy lacked qualified immunity.

Here, appellants claim that the...