Archuleta v. McShan

• Citation: 897 F.2d 495
• Decision Date: 01 March 1990
• Docket Number: No. 87-1461,87-1461
• Parties: Robert J. ARCHULETA; Lillie N. Archuleta; and Robert Joshua Archuleta, a minor, by next friends, Robert J. Archuleta and Lillie N. Archuleta, Plaintiffs-Appellants, v. Quinton McSHAN, in his individual capacity only; Joe Tarazon, in his individual capacity only; New Mexico State Police; and Morris L. Cordova, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 495

897 F.2d 495

Robert J. ARCHULETA; Lillie N. Archuleta; and Robert Joshua Archuleta, a minor, by next friends, Robert J. Archuleta and Lillie N. Archuleta Plaintiffs-Appellants, v. Quinton McSHAN, in his individual capacity only; Joe Tarazon, in his individual capacity only; New Mexico State Police; and Morris L Cordova, Defendants-Appellees.

No. 87-1461.

United States Court of Appeals Tenth Circuit.

March 1, 1990.

John B. Roesler of Wolfe, Roesler, Romero & LaMar, Santa Fe, N.M., for plaintiffs-appellants.

Janet Clow of White, Koch, Kelly & McCarthy, P.A., Santa Fe, N.M., for defendants-appellees.

Before MOORE, ANDERSON and EBEL, Circuit Judges.

EBEL, Circuit Judge.

This appeal concerns the asserted constitutional rights of a three-year-old child who witnessed a police officer's violent arrest of the child's father. The child brought suit under 42 U.S.C. Sec. 1983, alleging that his liberty interest under the Fourteenth Amendment was violated as a result of his witnessing the arrest. ¹ The district court entered summary judgment in favor of the police officer and his superiors, holding that the officer's conduct was not directed toward the child and that the child therefore did not have his constitutional rights violated. We affirm.

Facts

In the early morning of July 7, 1985, plaintiff was a passenger in a truck driven by his father. Plaintiff's mother and an adult family friend also were passengers. As the father was pulling into his driveway, a police officer stopped him. The officer told the father that one of his headlights was out and that he did not have his young child, the plaintiff, in a child restraint. The officer asked the father for his driver's license, which the father refused to give. After smelling alcohol on the father's breath, the officer asked the father to exit the car. The father refused.

After radioing for a police backup unit, the officer again requested the father to exit the car. After the father again refused, the officer grabbed him in order to pull him from the car and arrest him. The father clung to the steering wheel so that he could not be pulled from the car. A struggle ensued. The officer hit the father's leg with his flashlight and kicked him multiple times in the process of getting the father out of the truck and into the police unit.

As the altercation began, plaintiff's mother took plaintiff from the truck and gave him to the adult friend to hold. The friend kept plaintiff at least 20 feet away from the fray. The friend was free to remove plaintiff totally from the scene of the altercation, but she apparently chose to stay in the immediate vicinity to observe the event herself. Plaintiff was crying. At some point during the struggle, plaintiff's mother tried to get the house keys out of the father's pocket, purportedly to be able to take the child into the house. The officer pushed her away and purportedly said: "I have no sympathy for the child or anyone here." The father eventually was taken to the police station. ² At no time did the officer physically touch or threaten the plaintiff.

Plaintiff sued the officer and his superiors under 42 U.S.C. Sec. 1983, alleging that the officer acted with intentional or reckless disregard and indifference to his emotional well-being during the arrest. ³ The district court awarded summary judgment in favor of the defendants, holding that plaintiff was not deprived of any right secured by the Constitution or laws of the United States.

Discussion

On appeal, plaintiff asserts that his "Fourteenth Amendment substantive due process liberty interest" was violated by defendants' conduct. Appellant's Br. at 2. We disagree.

We begin by noting that "section 1983 imposes liability for violations of rights protected by the constitution or laws of the United States, not for violations of duties of care arising out of tort law. Remedies for the latter type of injury must be sought in the state court under the traditional tort-law principles." Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir.1981). Thus, we review this case not to determine whether the police officer may have committed an actionable tort against plaintiff, but rather to determine whether that conduct violated any of plaintiff's constitutional rights. "In addressing an excessive force claim brought under Sec. 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force." Graham v. Connor, --- U.S. ----, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989).

We must also keep firmly in mind the well-settled principle that a section 1983 claim must be based upon the violation of plaintiff's personal rights, and not the rights of someone else. Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir.) ("[T]he Sec. 1983 civil rights action is a personal suit. It does not accrue to a relative, even the father of the deceased."), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982); see also Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5th Cir.1986); Trujillo v. Board of County Commissioners, 768 F.2d 1186, 1187 (10th Cir.1985). Thus, regardless of what happened to plaintiff's father, this case turns upon whether plaintiff personally suffered any deprivation of a constitutional right possessed by him individually.

The precise interest that plaintiff is asserting here is a liberty interest, under the Due Process Clause of the Fourteenth Amendment, to be free of emotional trauma suffered as a result of observing allegedly excessive police force which was directed entirely at his father. ⁴ We hold that plaintiff has no such liberty interest, and that the district court was therefore correct in granting summary judgment on this ground.

The Supreme Court has stressed that "[h]istorically, th[e] guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) (emphasis in original). The Court in Daniels concluded that the word "deprive" in the Due Process Clause indicates that something more than a mere negligent act is required to trigger the protections of that provision. Id. at 330, 106 S.Ct. at 664. The Court cautioned that if injuries caused by mere negligent acts could violate the Due Process Clause, that provision, which is designed to protect the individual from arbitrary acts of the state, would be "trivialize[d]." Id. at 331-32, 106 S.Ct. at 664-65. ⁵ In a companion case, Davidson v. Cannon, 474 U.S. 344, 348, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986), the Court underscored its holding in Daniels and concluded that "the protections of the Due Process Clause, whether procedural or substantive, are ... not triggered by lack of due care."

The Supreme Court has recently confronted the issue of whether a municipality can be held liable for a violation of due process in the absence of deliberate action in City of Canton v. Harris, --- U.S. ----, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). City of Canton involved allegations that a municipality had violated the Due Process Clause when it improperly trained its police officers. The Court held that "the inadequacy of police training may serve as the basis for Sec. 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact." Id. 109 S.Ct. at 1204 (emphasis added).

The requirement of Daniels, Davidson, and City of Canton that there be an element of deliberateness in directing the misconduct toward the plaintiff before the Due Process Clause is implicated comports with prior precedent of this circuit. In Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981), we established that something beyond carelessness is required before police misconduct can be remedied under section 1983. The court held that mere carelessness or unwise excessive zeal, even amounting to an abuse of official power, may not be enough to establish liability for a due process claim under section 1983 in the absence of requisite scienter. Id. at 1333-34.

The problem with plaintiff's claim is that no state conduct was directed at him, and he cannot establish that defendants had the requisite intent to violate his rights. He was merely a bystander who was asserting indirect and unintended injury as a result of police conduct directed toward another.

We use the term bystander to mean someone who witnesses police action but who is not himself or herself an object of that action. ⁶ As such, a bystander is unable to assert the kind of deliberate deprivation of his or her rights necessary to state a due process claim under section 1983.

The case law supports our conclusion. For example, in Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir.1985), cert. denied, 480 U.S. 916, 107 S.Ct. 1369, 94 L.Ed.2d 686 (1987), the court held that a rancher's wife and stepsons who witnessed a mistaken shooting of the rancher by police had no constitutional claim for their own emotional injuries under section 1983, although they did have a claim under state tort law. The court stated, "[w]e fail to see, however, that these bystanders have proved an independent cause of action under Sec. 1983.... [T]here is no constitutional right to be free from witnessing this police action." Id.

Likewise, in Coon v. Ledbetter, 780 F.2d 1158 (5th Cir.1986), the court held that a wife who witnessed sheriff's deputies shooting into her mobile home and wounding her husband had no constitutional claim for emotional injuries. The court ruled that whatever her right to recover as a bystander under state law, she could not state a constitutional claim because "[t]here was no evidence that any act of the deputies was directed toward [her]." Id. at 1161 (emphasis added). In contrast, the court held that the couple's minor daughter, who was in the trailer at the time that the sheriff's deputies...