Hilliard v. City and County of Denver

• Decision Date: 24 April 1991
• Docket Number: No. 89-1316,89-1316
• Citation: 930 F.2d 1516
• Parties: Kathy HILLIARD, Plaintiff-Appellee, v. CITY AND COUNTY OF DENVER; Denver Police Department, Defendants, and Captain Michael O'Neill; Sergeant Anthony Iacovetta; Sergeant Mary Beth Klee; Officer Sherry Manning, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1516

930 F.2d 1516

Kathy HILLIARD, Plaintiff-Appellee, v. CITY AND COUNTY OF DENVER; Denver Police Department, Defendants and Captain Michael O'Neill; Sergeant Anthony Iacovetta Sergeant Mary Beth Klee; Officer Sherry Manning Defendants-Appellants.

No. 89-1316.

United States Court of Appeals, Tenth Circuit.

April 24, 1991.

Jeffrey N. Herren of Jeffrey N. Herren, P.C., Lakewood, Colo., for plaintiff-appellee.

Theodore S. Halaby (Robert M. Liechty with him, on the brief) of Halaby and McCrea, Denver, Colo., for defendants-appellants.

Before TACHA, EBEL, Circuit Judges, and JOHNSON, ^* District Judge.

TACHA, Circuit Judge.

This case is an appeal by defendant police officers from the denial of their motion for summary judgment based on qualified immunity. Because we find that the existence of a constitutional right, allegedly infringed here by defendants' actions, was not clearly established at the time of the incident, we reverse.

The material facts of this case are not in dispute. Plaintiff was a passenger in an automobile driven by her male companion which was involved in a minor traffic accident. The defendants investigated the accident and arrested the plaintiff's companion for investigation of driving under the influence of alcohol. He was taken into custody by the defendants and removed from the scene. The defendants at the same time determined that the plaintiff was too intoxicated to drive and ordered her not to do so. The car in which the plaintiff had been riding was impounded, and the plaintiff was left by the defendants in what the district court has termed a high crime area. After unsuccessfully attempting to telephone for help from a nearby convenience store, the plaintiff returned to her vehicle. There she was robbed and sexually assaulted by a third person, not a party to this appeal. She was found later the next morning, stripped naked, bleeding and barely conscious.

The plaintiff brought suit under 42 U.S.C. Sec. 1983 (1988) and state tort law. She alleged that her constitutional rights to life, liberty, travel and personal integrity had been violated, and that, specifically, the defendants' failure to take her into protective custody pursuant to Colorado's emergency commitment statute, Colo.Rev.Stat. Sec. 25-1-310 (1989), had given rise to this constitutional violation.

The defendants moved to dismiss, arguing that the law controlling their actions was not clearly established, and that they therefore had qualified immunity from suit. ¹ The district court dismissed all of the plaintiff's pendent state law claims and also dismissed the allegations of general constitutional deprivation under section 1983. ² The court, however, refused to dismiss the plaintiff's claim that because of the defendants' reckless disregard of the state emergency commitment statute her fourteenth amendment life and liberty interests had been invaded. At issue is whether the district court erred in finding that the defendants' actions violated clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

The district court's denial of a defendant's motion for summary judgment on qualified immunity grounds is an appealable decision within the meaning of 28 U.S.C. Sec. 1291 (1988), Pueblo Neighborhood Health Centers, Inc. v. Losavio, 847 F.2d 642, 644 (10th Cir.1988), and is reviewed by this court de novo. England v. Hendricks, 880 F.2d 281, 283 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1130, 107 L.Ed.2d 1036 (1990).

In Harlow, the Supreme Court enunciated the standard by which claims of qualified immunity are to be evaluated. Pueblo Neighborhood Health Centers, 847 F.2d at 645. This standard provides that "[w]hen government officials are performing discretionary functions, they will not be held liable for their conduct unless their actions violate 'clearly established statutory or constitutional rights of which a reasonable person would have known.' " Id. (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). In determining whether the law involved was clearly established, the court examines the law as it was at the time of the defendants' actions. Id.

It is the plaintiff's burden to convince the court that the law was clearly established. Id. (citing Lutz v. Weld County School Dist., 784 F.2d 340, 342-43 (10th Cir.1986)). In doing so, the plaintiff cannot simply identify a clearly established right in the abstract and allege that the defendant has violated it. Id. (citing Anderson v. Creighton, 483 U.S. 635, 640 & n. 2, 107 S.Ct. 3034, 3039 & n. 2, 97 L.Ed.2d 523 (1987)). Instead, the plaintiff "must demonstrate a substantial correspondence between the conduct in question and prior law allegedly establishing that the defendant's actions were clearly prohibited." Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir.1990). While the plaintiff need not show that the specific action at issue has previously been held unlawful, the alleged unlawfulness must be "apparent" in light of preexisting law. Id. (citing Anderson, 483 U.S. at 640, 107 S.Ct. at 3039). The " 'contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' " Id. (quoting Anderson, 483 U.S. at 640, 107 S.Ct. at 3039). If the plaintiff is unable to demonstrate that the law allegedly violated was clearly established, the plaintiff is not allowed to proceed with the suit. Id.

The rights identified by the plaintiff in her complaint are characterized as "the rights to life, liberty, travel and personal integrity secured by the Constitution and the laws of the United States...." Complaint at 3, 4. As noted above, while the district court dismissed the plaintiff's general claims based solely on section 1983, it did not dismiss her claim based on the defendants' alleged violation of the state emergency commitment statute. Because the plaintiff is basing her section 1983 claim on that statute, she must show that the statute itself or the laws authorizing its promulgation "create a cause of action for damages or provide the basis for an action brought under Sec. 1983." Davis v. Scherer, 468 U.S. 183, 194 n. 12, 104 S.Ct. 3012, 3019 n. 12, 82 L.Ed.2d 139 (1984).

There is no contention here that the emergency commitment statute creates an implied cause of action for damages. Under Colorado law, legislative intent to provide for private recovery must be expressly set out in the statute. Board of County Comm'rs v. Moreland, 764 P.2d 812, 817 (Colo.1988). Plaintiff therefore, under Davis, must demonstrate that this state statute creates a constitutionally protected liberty interest which will serve as the basis for her section 1983 claim.

The district court identified the plaintiff's interest as a liberty interest in personal security protected by the fourteenth amendment, citing Ingraham v. Wright, 430 U.S. 651, 674-75, 97 S.Ct. 1401, 1414-15, 51 L.Ed.2d 711 (1977), and Wood v. Ostrander, 851 F.2d 1212, 1216 (9th Cir.1988). Memorandum Opinion and Order at 11 n. 5. The defendants argue that the emergency commitment statute creates no such interest. Whether such a liberty interest exists under the facts of this case is an issue we do not reach. We hold, instead, that even if such a constitutional right exists, it was not clearly established in the law at the time of the defendants' actions thus entitling them to immunity from suit.

The Supreme Court has recognized a liberty interest in personal security in cases involving the fourth amendment right to be free from unreasonable searches and seizures, Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886); see also Gouled v. United States, 255 U.S. 298, 303-04, 41 S.Ct. 261, 262-63, 65 L.Ed. 647 (1921), and the eighth amendment right to be free from cruel and unusual punishment. Youngberg v. Romeo, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 2457-58, 73 L.Ed.2d 28 (1982). The plaintiff here, however, does not look to these constitutional guarantees in support of her claim. Instead, she relies on Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), in which the Court held that junior high school students have a protected liberty interest in personal security derived from the due process clause of the fifth amendment, later incorporated into the fourteenth amendment. See id. at 672-73, 97 S.Ct. at 1413-14. We are unpersuaded, however, that the right recognized in Ingraham clearly applies to the facts of this case.

In Kidd v. O'Neil, 774 F.2d 1252 (4th Cir.1985), overruled on other grounds, Justice v. Dennis, 834 F.2d 380 (4th Cir.1987), the Fourth Circuit noted that

there has been a conceptual struggle ever since revival of Sec. 1983 to identify the source of a general constitutional right to bodily security comparable to that given special protection in the fourth and eighth amendments and which could be asserted under Sec. 1983 by persons other than arrest suspects and convicts.

Id. at 1258. The court noted the absurdity of a situation where

constitutional protections ... exists [sic] only in those persons being taken into custody as criminal suspects and those already convicted of crime. On this view no one else in society has the protection, ... [particularly] those sufficiently virtuous or lucky not to have created any probable cause for their arrest and prosecution in the first place.

Id. The Fourth Circuit viewed Ingraham as clarifying the existence of an additional basis for the right to personal security, derived from the fifth and fourteenth amendments, which at least applies to public school students. Id. at 1259.

While Ingraham may have clarified the law with regard to the derivation of the right recognized therein, it is less clear that Ingraham's right to personal security would apply where there is no element of state-imposed...