Sellers By and Through Sellers v. Baer
| Decision Date | 16 August 1994 |
| Docket Number | Nos. 93-2261,93-3753,93-2686,s. 93-2261 |
| Citation | 28 F.3d 895 |
| Parties | Tina Marie SELLERS, By and Through her guardian, natural mother, and next friend, Joann SELLERS; Albert F. Deuser; Phyllis Menke, Appellees, v. Robert J. BAER; John J. Frank; James E. Mosbacher; William H. Young; Mayor Vincent Schoemehl; Lawrence J. King; United States of America, Defendants, David Vecera, National Park Ranger; Edward Bridges, National Park Ranger; Dennis Burnett, Chief Ranger, Appellants. Tina Marie SELLERS, By and Through her guardian, natural mother, and next friend, Joann SELLERS; Albert F. Deuser; Phyllis Menke, Appellees, v. Robert J. BAER; John J. Frank; James E. Mosbacher; William H. Young; Mayor Vincent Schoemehl; Lawrence J. King; United States of America, Defendants, David Vecera, National Park Ranger; Edward Bridges, National Park Ranger; Dennis Burnett, Chief Ranger, Appellants. Tina Marie SELLERS, By and Through her guardian, natural mother, and next friend, Joann SELLERS; Albert F. Deuser; Phyllis Menke, Appellees, v. Robert J. BAER; John J. Frank; James E. Mosbacher; William H. Young; Mayor Vincent Schoemehl; Lawrence J. King, Appellants, United States of America; David Vecera, National Park Ranger; Edward Bridges, National Park Ranger; Dennis Burnett, Chief Ranger, Defendants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Edward R. Cohen, Washington, DC, argued (Frank W. Hunger, Stephen B. Higgins, Barbara L. Herwig and Edward R. Cohen on the brief), for appellants.
James J. Wilson, St. Louis, MO, argued (Ronnie L. White and James J. Wilson on the brief), for appellants Robert J. Baer, et al.
Robert H. Pedroli, Clayton, MO, argued (James V. Lankford and Robert H. Pedroli, on the brief), for appellees.
Before BOWMAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
Before us are appeals from the District Court's denial of motions by certain of the defendants for summary judgment on the ground of qualified immunity. We reverse.
In the evening of July 4, 1986, at the annual Veiled Prophet fair at the Jefferson National Expansion Memorial in St. Louis, two National Park Rangers, Officers David Vecera and Edward Bridges, observed fairgoer Larry Deuser, in the midst of a milling throng of some 600,000 to 750,000 persons, randomly grabbing women by the buttocks. This conduct angered the women, and apparently some of their male companions as well. The rangers warned Deuser to keep his hands to himself, but he did not take this warning seriously. When Deuser urinated in public, the rangers arrested him. Deuser argued with the rangers and made offensive remarks to female fairgoers as the rangers escorted him to the rangers' tent on the fairgrounds.
The rangers met at the tent with Chief Ranger Dennis Burnett and decided to turn Deuser over to the St. Louis police. Because the St. Louis police department was, as a result of the fair and its attendant problems, too busy to process Deuser, the rangers, Burnett, and St. Louis police officer Lawrence King agreed to remove Deuser from the fairgrounds and set him free. Deuser was to be released far enough away from the fairgrounds that he would not have time to return to cause more trouble.
According to the rangers and King, they then took Deuser in a city police vehicle driven by King to the nearest police station, ten blocks from the fairgrounds, pulled into the parking lot behind the federal building, and allowed Deuser to leave the vehicle. Before they released him, the officers made Deuser promise not to return to the fairgrounds. Deuser did not have any money with him when he was released.
About an hour and one-half later, at approximately 10:30 p.m., a motorist struck and killed Deuser on an interstate highway about a mile and one-half from where Deuser had been released. 1 At the time of his death, Deuser was highly intoxicated, his blood-alcohol level testing 0.214.
Tina Marie Sellers (Deuser's minor daughter, through her mother) and Albert Deuser and Phyllis Menke (Deuser's parents) brought this suit in federal court, raising various state and federal claims, including claims under Bivens 2 against Vecera, Bridges, and Burnett, and under 42 U.S.C. Sec. 1983 against, in their official capacities, King and the members of the Board of Police Commissioners of the city of St. Louis. 3 These claims allege, inter alia, that the conduct of Vecera, Bridges, Burnett, and King violated Deuser's Fifth and Fourteenth Amendment rights to substantive due process. 4
In August 1990, the District Court granted the motion of Vecera, Bridges, and Burnett for summary judgment based on, in part, qualified immunity with respect to the Bivens claims. In April 1993, however, the court granted the plaintiffs' motion for reconsideration and vacated its prior order. In the same ruling, the court denied King's and the members of the Board's motions for summary judgment with respect to the Sec. 1983 claims in which King claimed qualified immunity with respect to those claims and both King and the members of the Board asserted that King's conduct did not amount to a constitutional violation. In so doing, the court relied on, and factually distinguished, Gregory v. City of Rogers, 974 F.2d 1006 (8th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993). Vecera, Bridges, Burnett, and King appeal. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) (). 5
The moving parties are entitled to summary judgment if there is no genuine issue of material fact and they are entitled as a matter of law to judgment in their favor. Pentel v. City of Mendota Heights, 13 F.3d 1261, 1263 (1994). In this appeal we must decide whether the officers are entitled to summary judgment on the ground of qualified immunity. "[G]overnment officials performing discretionary functions generally are shielded 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." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Our inquiry into the qualified immunity question thus must consider both the nature of the plaintiffs' claims and the state of the law with respect to such claims.
The plaintiffs claim that Vecera, Bridges, Burnett, and King violated Deuser's Fifth and Fourteenth Amendment substantive due process rights. Although government generally has no duty under the Due Process Clause to protect individuals from harm imposed by third parties, DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189, 195-96, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989), the plaintiffs allege that the officers violated Deuser's substantive due process rights by removing him from the fair and leaving him in a parking lot while intoxicated, away from his friends, and without funds, thus placing him in a dangerous position he otherwise would not have faced.
In DeShaney, the Supreme Court was asked to decide whether a social services agency's failure to prevent continuing physical abuse of a child, of which the county was aware, constituted a deprivation of due process. The Court ruled that the state had no obligation to protect the child from harm caused by a third party (his father), even though the state knew of the danger faced by the child. 489 U.S. at 196-97, 200-01, 109 S.Ct. at 1006. The Court reasoned, in part, that due process acts as a limitation on the state's power to act, and does not guarantee an individual's safety or security. Id. at 195, 109 S.Ct. at 1003. While the Court acknowledged that a state may be obligated to protect an individual from harm imposed by a third party when the state holds the individual in custody against the individual's will, id. at 199-200, 109 S.Ct. at 1005, the Court reasoned that, as the child was not in the state's custody, the state had neither played a role in creating the dangers the child faced, nor had it even taken any action that placed the child in a position worse than that in which he otherwise would have been, id. at 201, 109 S.Ct. at 1006. Some courts, including this one, have taken an extra analytical step and concluded that, if a state does take action that places an individual in a position of danger the individual otherwise would not have faced, the state may violate due process. See Gregory, 974 F.2d at 1010; Wells v. Walker, 852 F.2d 368, 370 (8th Cir.1988), cert. denied, 489 U.S. 1012, 109 S.Ct. 1121, 103 L.Ed.2d 184 (1989).
Simply stating the broad outline of the constitutional right allegedly violated, however, does not end our inquiry. In Anderson v. Creighton, 483 U.S. 635, 636-37, 107 S.Ct. 3034, 3037, 97 L.Ed.2d 523 (1987), the plaintiffs sued a federal law enforcement officer who participated in a search of the plaintiffs' residence that allegedly violated the Fourth Amendment. The Supreme Court reviewed the holding of this Court that the officer was not entitled to qualified immunity because, in the absence of probable cause and exigent circumstances, an individual has a clearly established right to be free in his or her home from a warrantless search. Id. at 640, 107 S.Ct. at 3039. The Supreme Court reversed, concluding that we had formulated our statement of the constitutional right at too high a level of generality. Instead, the Court explained,
the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.... [I]n the light of pre-existing law the...
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