Apodaca v. Rio Arriba County Sheriff's Dept.

• Decision Date: 19 June 1990
• Docket Number: Nos. 88-1595,88-1910,s. 88-1595
• Citation: 905 F.2d 1445
• Parties: John APODACA, Individually and as Personal Representative of the Estate of Theresa Apodaca, Deceased; Lorraine Apodaca, Plaintiffs Appellants, v. RIO ARRIBA COUNTY SHERIFF'S DEPARTMENT; The County of Rio Arriba; The Rio Arriba Board of County Commissioners; Adelinda G. Martinez, Personal Representative of the Estate of Benigno (Ben) F. Martinez; Emilio Naranjo, Individually and in his Official Capacity as Rio Arriba County Manager; Delaino Romero, Individually and in his Official Capacity as a Rio Arriba County Deputy Sheriff, Defendants-Appellees. Earl APODACA; Janet Apodaca, Plaintiffs-Appellants, v. RIO ARRIBA COUNTY SHERIFF'S DEPARTMENT; The County of Rio Arriba; The Rio Arriba Board of County Commissioners; Adelinda G. Martinez, Personal Representative of the Estate of Benigno (Ben) F. Martinez; Emilio Naranjo, Individually and in his Official Capacity as Rio Arriba County Manager; Delaino Romero, Individually and in his Official Capacity as a Rio Arriba County Deputy Sheriff, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1445

905 F.2d 1445

John APODACA, Individually and as Personal Representative of

the Estate of Theresa Apodaca, Deceased; Lorraine

Apodaca, Plaintiffs Appellants, v. RIO ARRIBA COUNTY SHERIFF'S DEPARTMENT; The County of Rio

Arriba; The Rio Arriba Board of County Commissioners;

Adelinda G. Martinez, Personal Representative of the Estate

of Benigno (Ben) F. Martinez; Emilio Naranjo, Individually

and in his Official Capacity as Rio Arriba County Manager;

Delaino Romero, Individually and in his Official Capacity as

a Rio Arriba County Deputy Sheriff, Defendants-Appellees.

Earl APODACA; Janet Apodaca, Plaintiffs-Appellants, v. RIO ARRIBA COUNTY SHERIFF'S DEPARTMENT; The County of Rio

Arriba; The Rio Arriba Board of County Commissioners;

Adelinda G. Martinez, Personal Representative of the Estate

of Benigno (Ben) F. Martinez; Emilio Naranjo, Individually

and in his Official Capacity as Rio Arriba County Manager;

Delaino Romero, Individually and in his Official Capacity as

a Rio Arriba County Deputy Sheriff, Defendants-Appellees.

Nos. 88-1595, 88-1910.

United States Court of Appeals Tenth Circuit.

June 19, 1990.

Richard Rosenstock, Chama, N.M. (Robert R. Rothstein of Rothstein, Bailey, Bennett, Daly & Donatelli, Santa Fe, N.M., with him on the briefs), for plaintiffs-appellants.

Douglas A. Baker (Benjamin Silva, Jr., with him on the brief), James H. Johansen of Butt, Thornton & Baehr, Albuquerque, N.M., for defendants-appellees Rio Arriba County Sheriff's Dept., Rio Arriba County, Rio Arriba Bd. of County Com'rs, Emilio Naranjo and Delaino Romero.

M. Karen Kilgore and David F. Cunningham of White, Koch, Kelly & McCarthy, Santa Fe, N.M., filed a brief on behalf of defendant-appellee Adelinda G. Martinez, Personal Representative of the Estate of Benigno (Ben) F. Martinez.

Before HOLLOWAY, Chief Judge, LOGAN, Circuit Judge, and BROWN, District Judge. ^*

LOGAN, Circuit Judge.

This is the consolidated appeal of two cases arising out of a collision between defendant Delaino Romero, a Rio Arriba County deputy sheriff, and plaintiffs' decedent Theresa Apodaca (Theresa). Theresa's parents, plaintiffs John and Lorraine Apodaca, filed an action pursuant to 42 U.S.C. Sec. 1983 alleging that Romero, Rio Arriba County, and other county officers deprived Theresa of her life without due process of law, that Romero seized her unreasonably and with excessive force in violation of the Fourth and Fourteenth Amendments, and that the plaintiff parents were deprived of their right to associate with their daughter guaranteed by the First and Fourteenth Amendments. ¹ Plaintiffs Earl and Janet Apodaca, siblings of the decedent, allege only that they were deprived of their right to intimate familial association. The district court granted summary judgment in favor of the defendants on plaintiffs' due process claims, and dismissed plaintiffs' First and Fourth Amendment claims. ² 647 F.Supp. 752. We affirm.

We review the granting of summary judgment and dismissal de novo, applying the same standard as the district court. Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230 (10th Cir.1990); Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). Summary judgment is to be granted if no material issues of fact remain, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We presume all allegations reasonably pleaded are true. In dealing with each kind of motion we resolve all conflicts in favor of the party resisting the motion. Morgan, 792 F.2d at 978; Abercrombie, 896 F.2d at 1230.

I

Deputy Romero was responding to a silent burglar alarm at an automobile dealership when his marked police car collided with Theresa's car, as she was leaving the parking lot of a restaurant. Accepting the plaintiffs' version of the facts, we assume that Romero was driving 55-65 miles per hour around a blind curve on which the regular speed limit was 35 miles per hour. It was after midnight, and had been raining and sleeting. Romero was not using his siren or flashing lights. Theresa was making a left turn out of the restaurant parking lot, when Romero rounded the curve and crashed into her car broadside.

A Negligence and Due Process

Plaintiffs assert that Romero's negligent driving, under color of state law, deprived Theresa of her right to life without due process. ³ There is no dispute that Romero was acting under color of state law when the accident occurred.

We agree with the defendants that negligent operation of a vehicle by a police officer does not rise to the level of a constitutional violation. The Supreme Court has drawn a distinction between constitutional violations and torts which just happen to be committed by public officials. See Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976) (distinguishing between torts and constitutional violations); Parratt v. Taylor, 451 U.S. 527, 544, 101 S.Ct. 1908, 1917, 68 L.Ed.2d 420 (1981) (same); Daniels v. Williams, 474 U.S. 327, 332-33, 106 S.Ct. 662, 665-66, 88 L.Ed.2d 662 (1986) (same). See also Hewitt v. City of Truth or Consequences, 758 F.2d 1375, 1379-80 (10th Cir.) (negligent conduct not constituting abuse of official power), cert. denied, 474 U.S. 844, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985). Collisions between police vehicles and others caused by police negligence clearly fall on the "tort" side of the line. Paul, 424 U.S. at 698-99, 96 S.Ct. at 1159-60; Parratt, 451 U.S. at 544, 101 S.Ct. at 1917. This holding comports with the views of other circuits. See Cannon v. Taylor, 782 F.2d 947, 949-50 (11th Cir.1986) (police cruiser collides with bystander's car); see also Roach v. City of Fredericktown, 882 F.2d 294, 297 (8th Cir.1989) and Jones v. Sherrill, 827 F.2d 1102, 1106-07 (6th Cir.1987) (police chasing suspect whose car collides with bystander's car). ⁴

B Illegal Seizure

Plaintiffs argue that Romero's actions constituted an unlawful seizure of Theresa in violation of the Fourth Amendment, applicable to the states through the Fourteenth Amendment. This argument misperceives the nature of what constitutes a "seizure" for Fourth Amendment purposes. The Supreme Court has recently clarified the issue in a manner favorable to the defendants' position.

In Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), the Supreme Court held that a seizure must be "willful" to be actionable under the Fourth Amendment. 109 S.Ct. at 1381. The Court carefully distinguished between accidental and intentional detentions. Only unreasonable intentional detentions violate the Constitution. Id. at 1382. An action may lie for one intentionally but wrongly seized, see Jamieson v. Shaw, 772 F.2d 1205, 1209-10 (5th Cir.1985) (passenger in car stopped by roadblock was seized for constitutional purposes because officers intended to stop car); however, one seized unintentionally does not have a constitutional complaint. Brower, 109 S.Ct. at 1381. There is no allegation here that Romero intended to stop either Theresa or her car; therefore, she was not unlawfully seized for Fourth Amendment purposes.

Because plaintiffs have alleged no federal constitutional violations, we need not address the plaintiffs' claims against the sheriff's department, county, and other officers in their official capacities. Roach, 882 F.2d at 297-98. When there is no underlying constitutional violation by a county officer, there cannot be an action for failing to train or supervise the officer. City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573, 89 L.Ed.2d 806 (1986).

II

Plaintiffs urge us to reconsider our decision in Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10th Cir.1985), which required evidence of an intent to interfere with a protected relationship before a relative of a person injured or killed by a state actor could sustain a Sec. 1983 claim premised on a violation of the First Amendment's guarantee of freedom of association. In formulating its intent requirement, the Trujillo opinion expressly considered a situation like the one at bar, noting that without an intent requirement, state actors could be...