Munger v. City of Glasgow Police Dept.

• Decision Date: 06 September 2000
• Docket Number: No. 98-36090,98-36090
• Citation: 227 F.3d 1082
• Parties: (9th Cir. 2000) GLORIA MUNGER, Personal Representative of the Estate of Lance K. Munger, deceased; and DONALD M. MUNGER and GLORIA MUNGER, individually, Plaintiffs-Appellants, v. CITY OF GLASGOW POLICE DEPARTMENT, MICHAEL SUKUT, VERNON BUERKLE, VALLEY COUNTY SHERIFF'S DEPARTMENT, BRIEN GAULT and TIM NIXDORF, Defendants-Appellees, MICHAEL SUKUT, VERNON BUERKLE, VALLEY COUNTY SHERIFF'S DEPARTMENT, BRIEN GAULT and TIM NIXDORF, Third-party plaintiffs, v. WILLIAM FASTJE and JOHN DOE NO. 1 and JOHN DOE NO. 2, d/b/a STOCKMAN BAR, and PATRICIA MULLIGAN, JOHN DOE NO. 3 and JOHN DOE NO. 4, d/b/a STAN'S SALOON, Third-party defendants
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1082

227 F.3d 1082 (9th Cir. 2000)

GLORIA MUNGER, Personal Representative of the Estate of Lance K. Munger, deceased; and DONALD M. MUNGER and GLORIA MUNGER, individually, Plaintiffs-Appellants, v. CITY OF GLASGOW POLICE DEPARTMENT, MICHAEL SUKUT, VERNON BUERKLE, VALLEY COUNTY SHERIFF'S DEPARTMENT, BRIEN GAULT and TIM NIXDORF, Defendants-Appellees, MICHAEL SUKUT, VERNON BUERKLE, VALLEY COUNTY SHERIFF'S DEPARTMENT, BRIEN GAULT and TIM NIXDORF, Third-party plaintiffs, v. WILLIAM FASTJE and JOHN DOE NO. 1 and JOHN DOE NO. 2, d/b/a STOCKMAN BAR, and PATRICIA MULLIGAN, JOHN DOE NO. 3 and JOHN DOE NO. 4, d/b/a STAN'S SALOON, Third-party defendants.

No. 98-36090

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted August 7, 2000

Filed September 6, 2000

[Copyrighted Material Omitted] Patricia O'Brien Cotter, Cotter & Cotter, Great Falls, Montana, for the plaintiffs-appellants.

Kevin Meek, Davis, Hatley, Haffman & Tighe, P.C., Great Falls, Montana, and Mark Higgins, Ugrin, Alexander, Zadick & Higgins, Great Falls, Montana, for the defendantsappellees.

Appeal from the United States District Courtfor the District of Montana. Jack E. Shanstrom, District Judge, Presiding. D.C. No.CV-96-110-BLG-JDS

Before: Betty B. Fletcher, Cynthia Holcomb Hall, and A. Wallace Tashima, Circuit Judges.

Fletcher, Circuit Judge:

Gloria and Donald Munger appeal the district court's grant of summary judgment to the defendants-appellees in their suit alleging 1983 and state law negligence causes of action.

I.

The night of March 3, 1995 was a bitter cold one in Glasgow, Montana. The temperature at midnight was recorded at 11 degrees, with a windchill factor of minus 20-25 degrees. Lance Munger, a 35-year-old unemployed welder, was out drinking that night. After consuming a substantial amount of alcohol, he apparently became belligerent at Stan's Bar and got into heated arguments with other patrons.

The bartender called the police, asking for help with the disturbance. Munger was standing outside Stan's Bar when the police arrived, but he followed them inside. One of the police officers apparently took Munger physically by the arm and walked him out the front door again. The officers dispute this, saying that Munger walked outside without the use ofphysical contact. In any event, the parties agree that when he was ejected from the bar, Munger was wearing only jeans and a t-shirt.

According to the Mungers, Lance Munger was very obviously drunk. He was swaying back and forth, with unsure balance. His truck was parked near Stan's, but defendant Officer Buerkle told Munger not to drive. Nor was he free to reenter Stan's.

At this point, Munger walked away from the police and from Stan's and the other bars, heading toward an abandoned railway yard.¹ This was the last that anyone saw of Munger. The police allegedly went looking for him in their squad cars; they had located his coat inside Stan's Bar and were concerned about the fact that he was out in only a t-shirt. They did not find him.² The next day, Munger's body was found curled up in an alleyway two blocks from Stan's Bar. He had died from hypothermia.

Lance Munger's mother and father filed this suit in federal district court. The defendants are officers Michael Sukut, Vernon Buerkle, Brien Gault, and Tim Nixdorf ("the officers") and the City of Glasgow Police Department and the Valley County Sheriff's Department ("the police departments"). The Mungers allege that the officers and the police departments violated their constitutional duties, under the Due Process Clause of the Fourteenth Amendment, to protect Munger once they had placed him in danger by ejecting him from the bar in just a t-shirt in sub-freezing temperatures. They also assert claims under a state law negligence theory.

The district court granted summary judgment to the officers on the 1983 claims on the basis of qualified immunity. The court subsequently granted summary judgment for the police departments "in light of the Court's summary judgment ruling on the section 1983 claims." It also granted summary judgment on the state law negligence claims.

II.

The district court had jurisdiction over the 1983 claims under 28 U.S.C. 1331 and 1343. The district court exercised jurisdiction over the state law claims pursuant to 28 U.S.C. 1367. The district court entered a final judgment disposing of all claims, and appellants filed a timely notice of appeal. We have jurisdiction pursuant to 28 U.S.C.S 1291.

We review a district court's grant of summary judgment de novo. See Robi v. Reed, 173 F.3d 736, 739 (9th Cir. 1999). Summary judgment is proper only if, viewing the evidence in the light most favorable to the nonmoving party, there are nogenuine issues of material fact and the court correctly applied the relevant substantive law. See id.

III.

The plaintiffs-appellants first claim that the district court erred in granting summary judgment on the basis of qualified immunity to the officers on the 1983 claims.

Qualified immunity " `shield[s] [government agents] from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Behrens v. Pelletier, 516 U.S. 299, 305 (1996) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To evaluate a qualified immunity claim, we first ask whether the law governing the official's conduct was clearly established; if so, we ask whether under that law, and under the circumstances at issue, a reasonable officer could have believed the conduct was lawful. See Katz v. United States, 194 F.3d 962, 967 (9th Cir. 1999) (citing Somers v. Thurman, 109 F.3d 614, 617 (9th Cir. 1997) and Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993)).

The district court found that the law governing the officers' conduct was clearly established: under the Due Process clause of the Fourteenth Amendment an officer may be held liable for failing to protect an individual where the state has placed that individual in danger through its affirmative conduct. However, it found that the defendants had met their burden of proving that a reasonable officer could have believed their conduct lawful, since "[u]nder the circumstances at issue the court finds that Munger was not affirmatively placed in danger by the officers."

We affirm the district court's holding that the law was clearly established. Although the general rule is that the state is not liable for its omissions, see DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 195 (1989), there are several exceptions to this rule. Relevant here is the "danger creation" exception to the rule of non-liability. See L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). This exception exists where there is "affirmative conduct on the part of the state in placing the plaintiff in danger." Id.

We have previously applied the danger creation exception where a police officer ejected a woman from the vehicle in which she was a passenger, thus exposing her to external dangers including the possibility of harm from a third person. In Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), an officer stopped the car in which Wood was a passenger, arrested the driver of the car, and impounded the car. Id. at 586. Though the stop occurred in a high-crime area, the officer told Wood to get out of the car. Id. The parties disputed whether the officer offered to help Wood get home. Id. In any event, the officer left, and Wood was subsequently raped. Id. Weallowed Wood's 1983 claim to proceed, denying the officer's qualified immunity defense because "[a ] reasonable police officer who acted as Wood alleges Ostrander acted should have understood that what he was doing violated Wood's constitutional right to be free from an unjustified intrusion into her personal security in violation of her liberty interest under the Fourteenth Amendment." Id. at 596. See also Grubbs, 974 F.2d at 123 (holding that a female prison nurse had stated a claim under 1983 when she alleged that the defendant prison officials selected a violent sex offender to work alone with her in the prison clinic, and she was subsequently raped by the offender). Thus, in March 1995, at the time of the events at issue in the case at hand, the law was clearly established that officers may be liable where they affirmatively place an individual in danger.

To determine whether the officers in this case acted reasonably, we must determine whether they did in fact affirmatively place Munger in danger. In examining whether an officer affirmatively places an individual in danger, we do not look solely to the agency of the individual, nor do we rest our opinion on what options may or may not have been available to the individual. Instead, we examine whether the officers left the person in a situation that was more dangerous than the one in which they found him.

In Wood, supra, we held that Wood had raised a triable issue as to whether the officer "affirmatively placed the plaintiff in a position of danger." 879 F.2d at 589."The fact that Ostrander arrested [the driver], impounded his car, and apparently stranded Wood in a high crime area at 2:30 a.m. distinguishes Wood from the general public and triggers a duty of the police to afford her some measure of peace and safety." Id. at 590. In that case, there were factual disputes as to whether the officer made any inquiries as to Wood's ability to get home, and as to whether there were any "safe havens" in the neighborhood. Id. Viewing the evidence in the light most favorable to the non-movant, we denied the officer qualified immunity. Id. at 596.

In Penilla v. Huntington, 115 F.3d 707, 710 (9th Cir. 1997), we held that the police had "clearly placed Penilla in a more dangerous position than the one in which they found him." There, the police officers responded to a 911 call,"examined Penilla, found him to be in grave need of...