Montgomery v. County of Clinton, Mich., L89-50002 CA.

• Decision Date: 30 July 1990
• Docket Number: No. L89-50002 CA.,L89-50002 CA.
• Parties: Joan MONTGOMERY, Individually and as Personal Representative of the Estate of Sannie Montgomery, Deceased, and Lee Montgomery, Individually, Plaintiffs, v. COUNTY OF CLINTON, MICHIGAN, Terry Haneckow, Individually as Sheriff of Clinton County, Stephen Coughlin and Mark Finnila, Individually and in their capacity as Deputy Sheriffs for the County of Clinton, Mark Steffes, Individually and in his capacities as Deputy Sheriff and Deputy Medical Examiner for the County of Clinton, Dr. James Grost, M.D., Individually and as Medical Examiner for Clinton County, all Jointly and Severally, Defendants.
• Court: U.S. District Court — Western District of Michigan

743 F. Supp. 1253

Joan MONTGOMERY, Individually and as Personal Representative of the Estate of Sannie Montgomery, Deceased, and Lee Montgomery, Individually, Plaintiffs, v. COUNTY OF CLINTON, MICHIGAN, Terry Haneckow, Individually as Sheriff of Clinton County, Stephen Coughlin and Mark Finnila, Individually and in their capacity as Deputy Sheriffs for the County of Clinton, Mark Steffes, Individually and in his capacities as Deputy Sheriff and Deputy Medical Examiner for the County of Clinton, Dr. James Grost, M.D., Individually and as Medical Examiner for Clinton County, all Jointly and Severally, Defendants.

No. L89-50002 CA.

United States District Court, W.D. Michigan, S.D.

July 30, 1990.

John Kaplansky, Southfield, Mich., for plaintiffs.

Richard Winslow, Cummings, McClorey, Davis & Acho, Battle Creek, Mich., for defendants.

OPINION OF THE COURT

ROBERT HOLMES BELL, District Judge.

This case presents a four-count complaint growing out of plaintiffs' decedent's death. The decedent Sannie Montgomery was killed when, in the course of fleeing two pursuing police vehicles, he lost control of the automobile he was driving and it left the roadway and crashed. The third amended complaint alleges in count I under 42 U.S.C. § 1983 that defendant Deputy Sheriffs Stephen Coughlin and Mark Finnila subjected the decedent to an unreasonable seizure of his person in violation of the Fourth Amendment and deprived him of life without due process of law; in count II under 42 U.S.C. § 1983 that Clinton County and Sheriff Terry Haneckow are liable for the deputies' wrongful actions insofar as such actions are attributable to county policy or custom or a lack of proper training or supervision; in count III under the Michigan Wrongful Death Act, M.C.L. § 600.2922, that the decedent's death was caused by the negligence of defendants Coughlin, Finnila and Clinton County; and in count IV that defendants Medical Examiner James Grost, M.D., and Deputy Medical Examiner Mark Steffes violated plaintiffs' First Amendment freedom to exercise their religion and violated Michigan law, M.C.L. § 52.205, by failing to notify them and secure their consent before ordering the performance of an unnecessary autopsy upon the body of the decedent, and that, insofar as they acted pursuant to policy or custom, Clinton County is also liable. Defendants now move for summary judgment.

I

As to the material facts which form the basis for plaintiffs' federal claims, there is no genuine dispute. It appears that on January 7, 1987 at approximately 10:00 p.m., 16 year-old Sannie Montgomery was driving his mother's brand new 1987 blue Chevrolet Cavalier Z-24, westward on M-21 near Fowler in Clinton County, with friend Eric Miller as passenger. It is conceded that he was speeding. When approached by a Clinton County Sheriff Department patrol car, driven by defendant Coughlin, Montgomery accelerated, attempting to elude the patrol car. A high speed chase ensued. As Coughlin pursued from behind, a second deputy, defendant Finnila confronted Montgomery frontally in Fowler, positioning his patrol car "head-on" in Montgomery's lane of traffic. Montgomery swerved around Finnila's patrol car and continued westward out of Fowler, with Finnila and Coughlin in pursuit. When Finnila attempted to negotiate a left-hand turn at high speed following Montgomery onto Jones Road, he drove off the road into the ditch. Coughlin continued the chase, eventually eastward down a dirt road, Townsend. Coughlin was approximately one-half mile behind when he observed the Montgomery vehicle make what appeared to be a left-hand turn at the next intersection, Grange Road. When Coughlin turned left at Grange Road, however, the Montgomery vehicle was no longer in sight. After driving northward on Grange for almost a mile, Coughlin returned to Townsend, where he found the Montgomery vehicle resting on the driver's side against a utility pole almost 300 feet east of Grange. The passenger Miller survived the accident, but Montgomery died at the scene, having sustained massive head and upper body injuries.

Subsequently, an autopsy was performed upon Montgomery's body pursuant to the order of Medical Examiner Grost. It appears plaintiffs, the decedent's parents, were not notified before the autopsy was performed. The decedent's mother, Joan Montgomery, is Jewish, objects to the practice of autopsy on religious grounds, and would not have consented to the performance of an autopsy on her son's body.

II

Count I of the complaint actually contains two claims under 42 U.S.C. § 1983: (1) that the high speed chase constituted the use of excessive force which ultimately resulted in an unreasonable "seizure;" and (2) that the high speed chase constituted the use of excessive force which ultimately resulted in a deprivation of life without substantive due process. In Graham v. Connor, 490 U.S. ___, ___ - ___, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443, 454-55 (1989), the United States Supreme Court recently made it clear that only the first of these two claims is appropriate:

All claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of "substantive due process" must be the guide for analyzing these claims.

See also Pleasant v. Zamieski, 895 F.2d 272, 275 (6th Cir.1990).

In order to prevail on their claim that the decedent was subjected to an unreasonable seizure, plaintiffs must establish first that there was a "seizure." "Whenever an officer restrains the freedom of a person to walk away, he has seized that person." Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985). However, the restraint of freedom must be accomplished through means intentionally applied by the officer. "Violation of the Fourth Amendment requires intentional acquisition of physical control." Brower v. County of Inyo, 489 U.S. 593, ___, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628, 635 (1989).

It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual's freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied.

Id. In Brower, the Supreme Court reversed the dismissal of a Fourth Amendment claim arising out of a high speed police chase which culminated in the death of the fleer, where the police allegedly

(1) caused an 18-wheel tractor-trailer to be placed across both lanes of a two-lane highway in the path of Brower's flight, (2) "effectively concealed" this road-block by placing it behind a curve and leaving it unilluminated, and (3) positioned a police car, with its headlights on, between Brower's on-coming vehicle and the truck, so that Brower would be "blinded" on his approach.

Id., 489 U.S. at ___, 109 S.Ct. at 1380, 103 L.Ed.2d at 634. These allegations were held to make out a "seizure" because the fleer was meant to be stopped by the physical obstacle of the roadblock — and he was so stopped when he collided with it. The Brower court was careful, however, to distinguish such facts from the analogous situation of a police chase in which the suspect unexpectedly loses control of his car and crashes. Referring to this "analogous situation," the court observed that no seizure occurred where "the pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit; and though he was in fact stopped, he was stopped by a different means — his loss of control of his vehicle and the subsequent crash." Id., 489 U.S. at ___, 109 S.Ct. at 1381, 103 L.Ed.2d at 635. Further, the court cited with approval the Sixth Circuit's decision in Galas v. McKee, 801 F.2d 200 (6th Cir. 1986), where the above-described analogous situation was held not to constitute a seizure.

Consistent with these controlling authorities, the Court concludes the undisputed material facts of this case fail as a matter of law to establish a "seizure."¹ Without a seizure, there is no Fourth Amendment violation and, therefore, no need to even consider whether defendants' conduct was unreasonable.

The Fourth Amendment protects against "unreasonable seizures," not unreasonable or even outrageous conduct in general.

.... The reasonableness of a seizure or method of seizure cannot be challenged under the Fourth Amendment unless there was a completed seizure....

Galas, supra, 801 F.2d at 202, 203.

Nonetheless, consideration of the reasonableness of defendants' conduct would not change the present result. It appears the means used by defendants Coughlin and Finnila, consisting of nothing essentially beyond high speed pursuit on predominantly rural roads, were in no respect unreasonable. This is the conclusion reached by the Galas court upon facts materially indistinguishable from those here presented:

In summary, we conclude that the minimal intrusion on a traffic offender's Fourth Amendment right occasioned by the officer's participation in a high-speed pursuit does not outweigh a longstanding police practice which we consider "essential to a coherent scheme of police powers." Accordingly, we hold that the use of high-speed pursuits to apprehend traffic violators is not unreasonable and, thus, not violative of the Fourth Amendment.

801 F.2d at 204. The Brower court, by implication at least, agreed. See 489 U.S....