Cannon v. Taylor, 83-8856

• Decision Date: 20 February 1986
• Docket Number: No. 83-8856,83-8856
• Citation: 782 F.2d 947
• Parties: Lemuel CANNON, Jr., Individually and as Temporary Administrator of the Estate of Lema Cannon, Deceased, Ronald Cannon, Patsy Griffin and Judy Hyles, Plaintiffs-Appellants, v. Martin TAYLOR and Columbus, Georgia, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 947

782 F.2d 947

Lemuel CANNON, Jr., Individually and as Temporary Administrator of the Estate of Lema Cannon Deceased, Ronald Cannon, Patsy Griffin and Judy Hyles, Plaintiffs-Appellants, v. Martin TAYLOR and Columbus, Georgia, Defendants-Appellees.

No. 83-8856.

United States Court of Appeals Eleventh Circuit.

Feb. 20, 1986.

Douglas L. Breault, Columbus, Ga., for plaintiffs-appellants.

John W. Denney, Kathelen M. VanBlarcum, Columbus, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY and ANDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

RONEY, Circuit Judge:

Lema Cannon was killed when a police vehicle driven by Officer Martin Taylor struck her automobile. Her personal representative and surviving children brought this 42 U.S.C.A. Sec. 1983 action against Officer Taylor and the City of Columbus, Georgia, claiming the defendants deprived Mrs. Cannon of life without due process of law and violated her constitutional right to travel. The district court granted summary judgment for defendants, finding that no constitutional violation had occurred. The case was orally argued on September 20, 1984, but the decision was delayed pending en banc consideration of a case first reported as Gilmere v. City of Atlanta, 737 F.2d 894 (11th Cir.1984), because it contained issues possibly relevant to consideration of this case. The en banc Court in Gilmere v. City of Atlanta, 774 F.2d 1495 (11th Cir.1985) (en banc ), has now held that the Supreme Court decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), does not preclude a section 1983 suit against police officers for physical injuries just because the plaintiff would have a cause of action under state law. Gilmere and the other precedents having been fully considered by this Court, we affirm the denial of a section 1983 cause of action in this case. We hold that there is no section 1983 cause of action for injuries received in an automobile accident involving the negligence of city police.

At the time of the accident, Officer Taylor was responding to a disturbance call at a local pool hall in Columbus. The street on which he was travelling had a 30 miles-per-hour speed limit. Apparently concerned for the safety of the first officer to reach the scene, Taylor increased his speed to what investigative officers later determined to be at least 46 miles-per-hour. Georgia law provides that police vehicles may exceed posted speed limits when responding to emergency calls, but only if the officer uses the vehicle's flashing lights and siren. O.C.G.A. Sec. 40-6-6. Taylor was using neither. He struck the left side of Mrs. Cannon's automobile as she was crossing an intersection. Plaintiffs sued, asserting a cause of action against both Officer Taylor and the City.

OFFICER TAYLOR

As to Officer Taylor, plaintiffs alleged that, acting under color of state law, he deprived Mrs. Cannon of her life without In order to sustain a 1983 action, a plaintiff must make a prima facie showing that the act or omission of a person acting under color of state law deprived plaintiff of a right, privilege, or immunity secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). Section 1983 is not self-executing; the statute itself creates no substantive rights. Although the right to life is an interest of constitutional dimension, not every deprivation of life amounts to a constitutional violation and gives rise to a claim under section 1983. Dollar v. Haralson County, 704 F.2d 1540, 1543 (11th Cir.), cert. denied, 464 U.S. 963, 104 S.Ct. 399, 78 L.Ed.2d 341 (1983). The Fourteenth Amendment protects against only those deprivations of life which are effected without due process of law. See also Screws v. United States, 325 U.S. 91, 108-09, 65 S.Ct. 1031, 1038-39, 89 L.Ed. 1495 (1945) ("The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution or laws of the United States.").

due process of law by virtue of his reckless, excessive speeding without the use of lights and sirens.

The death occurred in an automobile accident, allegedly caused by the negligence of a police officer driving a city vehicle in the course of duties. No cases have been cited to this Court which held that automobile negligence by a state officer deprives an injured victim of due process of law. Our own computer research has revealed no decision that a victim of automobile negligence has a section 1983 cause of action for injuries caused by that negligence.

Observations of the United States Supreme Court indicate there is no such cause of action. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Court expressed concern with a suggested reading of section 1983 which would make the Fourteenth Amendment "a font of tort law to be superimposed upon whatever systems may already be administered by the States." Id. at 701, 96 S.Ct. at 1160. Elaborating on these concerns, the Paul Court stated that if respondent's view there would prevail, which it did not,

... it would be difficult to see why the survivors of an innocent bystander ... negligently killed by a sheriff driving a government vehicle, would not have claims equally cognizable under Sec. 1983.

It is hard to perceive any logical stopping place to such a line of reasoning. Respondent's construction would seem almost necessarily to result in every legally cognizable injury which may have been inflicted by a state official acting under 'color of law' establishing a violation of the Fourteenth Amendment. We think it would come as a great surprise to those who drafted and shepherded the adoption of that Amendment to learn that it worked such a result, and a study of our decisions convinces us they do not support the construction urged by respondent.

Id. at 698-99, 96 S.Ct. at 1159. The Court rejected the premise that the Due Process Clause of the Fourteenth Amendment and section 1983 "make actionable many wrongs inflicted by government employees which had heretofore been thought to give rise only to state-law tort claims." Id. at 699, 96 S.Ct. at 1159.

In Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), the Supreme Court repeated its concern noted five years earlier in Paul v. Davis, rejecting a claim that the negligent deprivation of certain property amounted to a constitutional violation actionable under section 1983. The Court summarized its rationale in its closing passage:

To accept respondent's argument that the conduct of the state officials in this case constituted a violation of the Fourteenth Amendment would almost necessarily result in turning every alleged injury which may have been inflicted by a state official acting under 'color of law' into a violation of the Fourteenth Amendment cognizable under Sec. 1983. It is hard to perceive any logical stopping Id. at 544, 101 S.Ct. at 1917.

                place to such a line of reasoning.  Presumably, under this rationale any party who is involved in nothing more than an automobile accident with a state official could allege a constitutional violation under Sec. 1983.  Such reasoning 'would make of the Fourteenth Amendment 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).  We do not think that the drafters of the Fourteenth Amendment intended the Amendment to play such a role in our society
                

In view of these strong observations from the United States Supreme Court, and a complete absence of contrary authority, we hold that a person injured in an automobile accident caused by the negligent, or even grossly negligent, operation of a motor vehicle by a policeman acting in the line of duty has no section 1983 cause of action for violation of a federal right. The type of negligence alleged in this case may well be actionable under state law. Automobile negligence actions are grist for the state law mill. But they do not rise to the level of a constitutional deprivation. See Walton v. Salter, 547 F.2d 824 (5th Cir.1976) (pedestrian struck and killed by police car responding to call of armed robbery in progress; actions of officer which were negligent and in willful and wanton disregard for the safety of others do not state a claim under section 1983).

CITY OF COLUMBUS

As to the City of Columbus, plaintiff alleged a due process violation based on the allegations that the City, by policy, authorized police officers to drive their vehicles at excessive speeds without operating their siren or flashing...