Ellis ex rel. Estate of Ellis v. Ogden City

• Decision Date: 17 December 2009
• Docket Number: No. 08-4166.,08-4166.
• Citation: 589 F.3d 1099
• Parties: Marvin B. ELLIS, as Administrator on Behalf OF the Philemon B. ELLIS ESTATE and Next-of-Kin, Plaintiff-Appellant, v. OGDEN CITY; Matt Jones, Ogden City Police Officer; Troy Burnett, Odgen City Police Officer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

589 F.3d 1099

Marvin B. ELLIS, as Administrator on Behalf OF the Philemon B. ELLIS ESTATE and Next-of-Kin, Plaintiff-Appellant, v. OGDEN CITY; Matt Jones, Ogden City Police Officer; Troy Burnett, Odgen City Police Officer, Defendants-Appellees.

No. 08-4166.

United States Court of Appeals, Tenth Circuit.

December 17, 2009.

Michael P. Studebaker, Law Office of Michael Studebaker, LLC, Ogden, UT, for the Plaintiff-Appellant.

Stephen F. Noel, Smith Knowles, Ogden, UT, (Allan L. Larson and Heather S. White, Snow, Christensen & Martineau, Salt Lake City, UT, for the Defendants-Appellees, Ogden City and Troy Burnett), for the Defendant-Appellee, Matt Jones.

Before HARTZ, HOLLOWAY, and TYMKOVICH, Circuit Judges.

HOLLOWAY, Circuit Judge.

This tragic case addresses the level of intent necessary to prove a 42 U.S.C. § 1983 claim against officers for their conduct in a high-speed chase resulting in a bystander's death. The teaching of County of Sacramento v. Lewis, 523 U.S. 833, 836, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), is that in such circumstances "only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation." See also id. at 858, 118 S.Ct. 1708 (Kennedy, J., concurring) ("intent to injure" is required).

Because Plaintiff-Appellant here failed to allege facts sufficient to establish such intent, the District Court properly dismissed the First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

I. BACKGROUND

On December 18, 2006, Officer Matt Jones and Sergeant Troy Burnett are alleged to have initiated a "high speed chase" after Eddie Bustos through Ogden, Utah. First Amended Complaint at ¶¶ 3-4, 12, 14.¹ The officers had been conducting a stakeout in a known gang member area of Ogden. Id. at ¶ 12. According to the First Amended Complaint, the officers began to follow and then chase Mr. Bustos "through town at speeds that exceeded 55 miles per hour, and at times reached 80 miles per hour." Id. at ¶ 15. Officer Jones was aware of the residential address of Mr. Bustos and could have waited at that address to arrest Mr. Bustos for any crimes he may have committed. Id. at ¶ 22. Throughout the chase Mr. Bustos would drive into oncoming traffic and lanes and the defendants continued to chase him. Id. at ¶ 17. The officers were advised and ordered by dispatch to disengage from the pursuit. Id. at ¶ 19.

The First Amended Complaint further alleges that the officers disregarded the order and/or gave false information to police dispatch about their speed and that they were disengaging the chase. Id. at ¶¶ 20, 24. During the chase Mr. Bustos struck the vehicle which Mr. Ellis was driving, and this led to Mr. Ellis's death. Id. at ¶ 23.

Mr. Ellis's estate filed suit against Ogden City, Officer Jones, and Sergeant Burnett for allegedly violating Mr. Ellis's Fifth and Fourteenth Amendment rights to due process and his Fourteenth Amendment right to equal protection of the law. The estate's suit was maintained pursuant to 42 U.S.C. § 1983 for acts which "deprived Ellis of his civil rights and his life." Id. at ¶¶ 6, 35, 42. The estate also alleged the City of Ogden fostered and encouraged a policy of turning a blind eye to dangerous police pursuits, thus exposing the city to municipal liability. Id. at ¶¶ 39-40. A demand for trial by jury was made in the complaint. Id. at ¶ 1. Defendants-Appellees moved to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim, and the District Court granted the motion. Memorandum Decision & Order, App. at 156.

The District Court held that the estate failed to allege facts establishing that the officers acted with the requisite intent for such a constitutional violation so that Defendants' Rule 12(b)(6) motion was appropriate. Id. at 7. The estate appealed the dismissal.

II. DISCUSSION

The District Court had federal question jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1343. This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

A. The Element of Intent Under Lewis for a Section 1983 Claim Arising From a High-speed Police Pursuit

Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, provides a remedy against any person who, under color of state law, deprives another of rights protected by the Constitution. Radecki v. Barela, 146 F.3d 1227, 1229 (10th Cir. 1998). To establish a substantive due process violation, a plaintiff must show that the officers acted in a manner "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Lewis, 523 U.S. at 847, n. 8, 118 S.Ct. 1708. Whether conduct shocks the conscience depends on the factual circumstances of the case and the level of intent exhibited by the officers. See id. at 850, 118 S.Ct. 1708 ("[O]ur concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.").

Lewis specified that in the context of a high-speed police pursuit there must be evidence that the officers intended to "harm the suspects physically or to worsen their legal plight" in order for their conduct to shock the conscience and therefore violate due process. Id. at 854, 118 S.Ct. 1708. "Accordingly, we hold that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983." Id. (emphasis added). Applying Lewis, in Radecki v. Barela, we stated that under the circumstances presented "only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience necessary for a due process violation." 146 F.3d 1227, 1230 (10th Cir.1998) (quoting Lewis, 523 U.S. at 836, 118 S.Ct. 1708).

Although Lewis did not explicitly define what constitutes a high-speed pursuit, the Court stated:

In this setting, a deliberate indifference standard does not adequately capture the importance of such competing obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance.

523 U.S. at 852, 118 S.Ct. 1708 (quoting Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)). The Supreme Court continued:

As the very term "deliberate indifference" implies, the standard is sensibly employed only when actual deliberation is practical, see Whitley v. Albers, 475 U.S. at 320, 106 S.Ct. 1078. ...

Lewis, 523 U.S. at 851, 118 S.Ct. 1708.

When an officer is in a high-pressure situation where time is of the essence, there must be evidence of a purpose to cause harm unrelated to the legitimate object of the arrest to satisfy the element of arbitrary conduct shocking to the conscience for a due process violation. Id. at 836, 118 S.Ct. 1708. Here, we are satisfied that this complaint alleged facts showing there was not time to deliberate; therefore we must focus on the possibility of liability based on an intent to injure the injured party.²

B.

The District Court Properly Granted Defendants-Appellees' Motion to Dismiss for Failure to State a Claim.

When reviewing a dismissal pursuant to Rule 12(b)(6), this Court will "accept all the well-pleaded allegations of the complaint as true and ... construe them in a light most favorable to the plaintiff." David v. City & County of Denver, 101 F.3d 1344, 1352 (10th Cir.1997) (citations omitted). The dismissal order is reviewed de novo and the court will determine "whether the complaint contains `enough facts to state a claim to relief that is plausible on its face.'" Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). If the plaintiff fails to allege an essential element of his claim, the complaint is appropriately dismissed pursuant to Rule 12(b)(6). Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir.2007).

The estate's First Amended Complaint failed to allege facts establishing liability based on the theory of intent to harm. There is no dispute about the alleged underlying police activity resulting in Mr. Ellis's death being a high-speed pursuit.³ Thus, Lewis applies. 523 U.S at 836, 118 S.Ct. 1708 ("The issue in this case is whether a police officer violates the Fourteenth Amendment's guarantee of substantive due process by causing death through deliberate or reckless indifference to life in a high-speed automobile chase aimed at apprehending a suspected offender."). Lewis requires the plaintiff to assert that the officers acted with an intent to either physically harm the suspect or worsen his legal plight. Id. at 854, 118 S.Ct. 1708. As we have noted, the estate failed to allege sufficient facts to meet the requirement of Lewis, 523 U.S. at 854, 118 S.Ct. 1708:

Accordingly we hold that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.

The estate failed to allege sufficient facts to support an intent to physically harm or worsen the legal plight of the injured party.

The only allegation in the complaint suggesting an intention to cause harm is that Officer Jones "acknowledged ... `[t]he suspect [Bustos] was traveling against traffic and an obvious danger to the public.'" First Amended Complaint at ¶ 16. However, an awareness that pursuing a suspect at speeds between 55 to 80 miles per hour through Ogden was an obvious danger to the public is not a sufficient averment that the officer intended to cause physical harm to the suspect or worsen his legal plight. In Radecki...