Flores v. City of S. Bend

• Decision Date: 12 May 2021
• Docket Number: No. 20-1603,20-1603
• Citation: 997 F.3d 725
• Parties: Soraida FLORES, a Personal Representative of the Estate of Erica Flores, deceased, Plaintiff-Appellant, v. CITY OF SOUTH BEND and Justin Gorny, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

997 F.3d 725

Soraida FLORES, a Personal Representative of the Estate of Erica Flores, deceased, Plaintiff-Appellant,

v.CITY OF SOUTH BEND and Justin Gorny, Defendants-Appellees.

No. 20-1603

United States Court of Appeals, Seventh Circuit.

Argued October 28, 2020

Decided May 12, 2021

Stephen D. Phillips, Attorney, Phillips Law Offices, Chicago, IL, Kevin Chandler Smith, Attorney, Smith Sersic, Munster, IN, for Plaintiff-Appellant.

Peter J. Agostino, Attorney, Anderson, Agostino & Keller, PC, South Bend, IN, for Defendants-Appellees.

Before Ripple, Wood, and Brennan, Circuit Judges.

Wood, Circuit Judge.

Erica Flores's life came to an untimely end when Officer Justin Gorny of the South Bend, Indiana, police department careened through residential streets and a red light at speeds up to 98 mph to reach a routine traffic stop he was not invited to aid, crashed into Flores's car, and killed her. Flores's personal representative, Soraida Flores, sued Gorny and the City under 42 U.S.C. § 1983 and associated state laws, asserting that Gorny violated Erica's substantive-due-process rights and that the City was liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for failing adequately to train its police officers. (We refer to Flores as the plaintiff without distinguishing between the victim and the estate representative unless the context otherwise requires.) The district court dismissed the action on the pleadings. We find, however, that Flores's allegations plausibly state claims against both defendants, and thus that she is entitled to proceed with her case. We therefore reverse and remand.

I

In the early hours of July 20, 2018, five South Bend officers ("the Hipakka team") were assigned to an area in the northwest part of the city, which was considered to be a "hot spot." Two of them—Zachary Alfrey and James Wagner—patrolled in an unmarked car that was not equipped with sirens or lights. One—Sergeant Ryan Hipakka—drove a fully marked police vehicle. The remaining two officers—Gregory Howard and Mollie O'Blenis—sat in an unmarked car that did have sirens and lights, though they were not in use. The two patrolling officers communicated through a tactical channel whenever they wanted assistance from the other three officers.

The events that led to Erica's death began when, around 4:30 am, Alfrey and Wagner radioed over the tactical channel that they had spotted a vehicle speeding in the patrol area and planned to stop it. The remaining three officers promptly acknowledged the report. None of the members of the Hipakka team signaled at any point that the routine traffic stop qualified as an emergency. None of them requested assistance from any other officers outside their group, and none pursued the driver.

Enter Officer Gorny. After hearing the exchanges among the Hipakka team over the tactical channel and knowing from those exchanges that no one was asking for external assistance, Gorny (then two miles away from the Hipakka team) roared through a residential neighborhood at 78 miles per hour, in disregard of the 30 mile-per-hour speed limit. Gorny made infrequent use of his lights or sirens. Still in the residential area, he then turned onto Western Avenue and accelerated up to 98 miles per hour while intermittently activating and deactivating his lights and sirens. Gorny reached the intersection of Kaley and Western Avenues with an obstructed view of Kaley Avenue. Disregarding the red light, Gorny sped through the intersection and crashed into Erica Flores's car, which was proceeding lawfully on a green light, killing her.

II

Because we are considering a dismissal under Rule 12(b)(6), we "accept[ ] as true all well-pleaded facts and draw[ ] all reasonable inferences in favor of the non-moving party." O'Brien v. Vill. of Lincolnshire , 955 F.3d 616, 621 (7th Cir. 2020). The account we have just furnished reflects these principles. In order to survive a motion to dismiss on the pleadings, the complaint must "contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations omitted).

Flores challenges the district court's dismissal of her section 1983 claims against both defendants. We address her individual claim against Gorny first, and then her Monell claim against the City. We also briefly touch on Flores's challenge to the district court's denial of leave to amend the complaint.

A

A person seeking relief under section 1983 for a violation of her Fourteenth Amendment right to substantive due process faces a difficult task. She must plead sufficient facts to establish that the officer acted with "criminal recklessness—which is the same as deliberate indifference." Hill v. Shobe , 93 F.3d 418, 421 (7th Cir. 1996) (quoting Archie v. City of Racine , 847 F.2d 1211, 1222 (7th Cir. 1988) ); see also County of Sacramento v. Lewis , 523 U.S. 833, 839, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ("deliberate indifference" or "reckless disregard"). Criminal recklessness in this context has long served as an effective proxy for intent, Hill , 93 F.3d at 421 (citing Wilson v. Williams , 83 F.3d 870, 875 (7th Cir. 1996) ), but we do not demand "smoking gun" proof of actual intent. Cf. FED. R. CIV. P. 9(b) ("... intent ... may be alleged generally"). It is enough to plead plausibly "that the defendant had actual knowledge of impending harm which he consciously refused to prevent." Hill , 93 F.3d at 421.

The deliberate-indifference standard demands close attention to the particulars of the case. Identical behavior considered reasonable in an emergency situation might be criminally reckless when state actors have time to appreciate the effects of their actions. See Lewis , 523 U.S. at 850, 118 S.Ct. 1708. This is why officers giving chase, who "are supposed to act decisively and to show restraint at the same moment," have more latitude to balance these competing directives. Id . at 853, 118 S.Ct. 1708. Officers responding to a nonemergency situation or inserting themselves into a situation that is already under control face a different set of constraints. They cannot reasonably expect to engage in the same conduct considered acceptable in the heat of an emergency.

The key question is whether the officer "ha[d] sufficient knowledge of the danger" such that "one can infer he intended to inflict the resultant injury." Id . In Hill , we confronted a case superficially similar to the one now before us. There, a police officer who was not responding to an emergency situation sped "well over the speed limit" through a red light and crashed into the decedent's car, killing him. Id . We concluded that this bare factual allegation allowed at most the inference that the officer created a "generic risk to the public at large" that "d[id] not rise to the threshold of a constitutional violation actionable under § 1983." Id . at 421–22.

The district court found Hill dispositive and concluded that Flores's complaint similarly failed to allege sufficient facts to permit the inference that Gorny subjectively knew of the danger he created and consciously disregarded it. Gorny's actions, the court thought, supported at most a reasonable inference that he created a generic risk to the general public through his reckless speeding and disregard of traffic signals. In our view, however, the facts alleged here go well beyond those in Hill , and the difference matters.

An officer who is not responding to an emergency can act so recklessly that a trier of fact would be entitled to find subjective knowledge of an unjustifiable risk to human life and conscious disregard of that risk. Our sister circuits have encountered similar factual allegations, and we find their opinions to be instructive. In Sauers v. Borough of Nesquehoning , 905 F.3d 711 (3d Cir. 2018), an officer observed a minor traffic offense and followed a car at 100 miles per hour, lost control of his car around a curve, spun out, and crashed into the plaintiff's car, injuring the plaintiff and killing his wife. Id. at 715, 718. The Third Circuit held that these allegations supported an inference of deliberate indifference, because the officer had time to phone other officers along the violator's route and ask them to effect the traffic stop. In addition, the traffic violation was too minor to warrant the dramatic chase. See also Browder v. City of Albuquerque , 787 F.3d 1076, 1081 (10th Cir. 2015) (finding that an off-duty officer driving home at an average of 66 miles per hour over an 8.8-mile stretch through ten intersections before running through a red light and crashing into the plaintiff's car operated with "conscious contempt of the lives of others and thus a form of reckless indifference").

Here, Gorny's reckless conduct, unjustified by any emergency or even an order to assist in a routine traffic stop that five officers had under control, allows the inference that he subjectively knew about the risk he created and consciously disregarded it. Unlike the minimally detailed complaint in Hill , which again was limited to an accusation of speeding, the complaint here paints a far more troubling picture. Gorny, who was not assigned to the hot-spot area, overheard Hipakka, Howard, and O'Blenis communicate their assent to Alfrey and Wagner's request for assistance specifically from the other members of their team. At no point did Gorny hear any officer indicate that he or she needed external back-up or that the traffic stop presented an emergency. With no justification, Gorny chose to race through a residential area with a posted speed limit of 30 miles per hour at rates of speed between 78 and 98 miles per hour, two-to-three times the limit. It was too late to control the car when he reached the intersection of Kaley Avenue and charged through, despite the obstructed view. The result, as we have said, was that...