
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1868                            LOUIS BOVERI AND ROSE BOVERI,                               Plaintiffs, Appellants,                                          v.                               TOWN OF SAUGUS, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                              _________________________                                        Before                               Torruella, Chief Judge,                                          ___________                          Selya and Boudin, Circuit Judges.                                            ______________                              _________________________               Edmund M. Pitts, with whom Edmund R. Pitts and Pitts & Pitts               _______________            _______________     _____________          were on brief, for appellants.               Philip  Burling,  with  whom  Gregory  T.  Moffatt,  Feriale               _______________               ____________________   _______          Abdullah, Foley, Hoag  & Eliot, Judith R. Cohen, and Adams & Koss          ________  ____________________  _______________      ____________          were on brief, for appellees.                              _________________________                                     May 12, 1997                              _________________________                    SELYA,  Circuit Judge.   The  instant appeal  tests the                    SELYA,  Circuit Judge.                            _____________          margins of  the "shock the  conscience" standard that  this court          articulated in Evans  v. Avery,  100 F.3d 1033  (1st Cir.  1996).                         _____     _____          Finding,  as we do, that the conduct complained of does not cross          the  Evans  line,  we  affirm  the  entry  of  judgment  for  the               _____          defendants.                    Because the district  court terminated the  plaintiff's          case1 on  summary judgment,  Fed. R.  Civ. P.  56, we  assess the          record  in  the  light  most  flattering  to  him  and  draw  all          supportable inferences in his  favor.  See Garside v.  Osco Drug,                                                 ___ _______     __________          Inc., 895 F.2d 46, 48 (1st Cir. 1990).          ____                    The curtain  rises in Saugus,  Massachusetts.   Shortly          after  9:00 p.m.  on December  28, 1990,  Saugus  police officers          Michael  McGrath  and David  Putnam were  on  patrol in  a police          cruiser.  They received  notice of a disturbance at  a McDonald's          restaurant on Route 1.  As it passes through Saugus,  Route 1 has          six  travel lanes (three  northbound and three  southbound).  The          posted speed  limit is 45  miles per hour.   At  the time of  the          events in question, weather conditions were execrable:  a mixture          of  snow and rain,  with slush beginning  to form on  the road in          spots.                    In   the  course   of   responding   to  the   reported          disturbance, the officers received a second radio dispatch to the                                        ____________________               1In actuality, there are  two plaintiffs:  Louis  Boveri and          his  wife, Rose  Boveri.   Inasmuch as  Rose's claim  is entirely          derivative  of her spouse's, we treat the appeal as if Louis were          the sole plaintiff.                                          2          effect  that the individuals involved were leaving the scene in a          small, dark-colored Honda automobile.   The officers arrived just          as  a car  matching the  reported description  pulled out  of the          restaurant's  parking  area  and sped  north  on  Route  1.   The          officers  followed,  activating  their  siren  and  blue  lights.          Instead of  stopping, the Honda  accelerated.  The  officers gave          chase.                    The pursuit continued along Route 1 at speeds in excess          of 80 miles per hour for  more than three miles.  Throughout, the          officers remained  only a  few car lengths  to the rear,  and the          driver of the  Honda, James Wade, desperately  attempted to elude          them.  Under Wade's aegis, the Honda weaved from lane to lane and          tried  to  use other  vehicles  to obstruct  the  trailing police          cruiser.  At one point, the Honda left the road, did a 360-degree          spin,  and returned  to the  highway.   Wade later  described the          chase as being "like a video game."                    In  Lynnfield, the Honda left Route 1 via the Route 129          exit.   The plaintiff's vehicle was ahead of the Honda, signaling          to  turn  right.   Wade  could not  stop  in time  and  the Honda          hydroplaned   into  the  plaintiff's  car,  instigating  a  chain          collision.   Officers  McGrath  and Putnam  arrived at  the scene          instantaneously,   apprehended   Wade,   and   summoned   medical          assistance   for  the   plaintiff  (who   had  sustained   severe          injuries).2                                        ____________________               2Wade  subsequently  entered a  guilty  plea  to charges  of          aggravated  rape, burglary, and larceny  of a motor  vehicle.  We          assume for purposes  of this  appeal that the  officers were  not                                          3                    The   plaintiff   sued   McGrath,   Putnam,   and   the          municipality under 42 U.S.C.    1983 (1994), alleging principally          that the officers' conduct violated his right to  substantive due          process.   The  district court  granted summary  judgment  in the          officers' favor based on  qualified immunity, concluding that the          officers' conduct  did not  violate  clearly established  federal          constitutional or  statutory rights of which  a reasonable police          officer would have known.  This appeal followed.3                    Summary  judgment  is proper  only  when  "there is  no          genuine issue as  to any material fact and . . . the moving party          is entitled to a judgment as  a matter of law."  Fed. R.  Civ. P.          56(c).  Our  review of  the district court's  application of  the          rule is plenary.  See Garside, 895 F.2d at 48.                            ___ _______                    While this appeal was pending, we seized an opportunity          to  clarify the  appropriate  legal standard  for  claims that  a          police pursuit violates substantive due process.   See Evans, 100                                                             ___ _____          F.3d at  1038.  We  apply that  standard here,  mindful that  the          lower court's rationale  does not delimit the  scope of appellate          review.  An appellate court may, if it chooses to do so, affirm a          summary  judgment  on any  alternative  ground  supported by  the          record.  See Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir. 1996).                   ___ _________    ____                                        ____________________          aware that the Honda was stolen or that its driver was implicated          in rape and burglary.               3Only  the officers  moved for  brevis disposition,  yet the                                               ______          trial court entered judgment  for all three defendants (including          the  town of  Saugus).   Because the  plaintiff has  not assigned          error to that seeming  irregularity, we deem any objection  to be          waived.                                          4                    It is by now axiomatic that 42 U.S.C.   1983 supplies a          private  right of action against a person who, acting under color          of  state  law, deprives  another  of  federally secured  rights.          Acting under  this rubric, claimants harmed  by police misconduct          occurring  outside the  context  of a  seizure theoretically  may          bring suits alleging the  deprivation of rights protected by  the          substantive  component of the Due Process Clause.  See Evans, 100                                                             ___ _____          F.3d  at 1036.    But the  Supreme  Court has  cautioned  against          interpreting  the Due  Process  Clause so  extravagantly that  it          "impose[s]   federal   duties  that   are   analogous   to  those          traditionally imposed by  state tort  law."  Collins  v. City  of                                                       _______     ________          Harker Heights, 503 U.S. 115, 128 (1992).          ______________                    There  is  another  caveat  applicable  here.    Police          pursuits have a special dimension:   although they are  dangerous          and inevitably create risks  to bystanders, they are at  the same          time an essential  law enforcement tool  for the apprehension  of          suspects.   See  Evans, 100  F.3d  at 1038.    To use  the  tool,                      ___  _____          however,  police  officers  are  forced  to   make  instantaneous          judgments  about how  to  balance  the  legitimate needs  of  law          enforcement and  the risks to public safety.   See id.  Conscious                                                         ___ ___          of the difficult nature  of this balancing act, we  determined in          Evans that "in order  for a high-speed police pursuit  to intrude          _____          upon substantive  due process protections, the  officers' conduct          must not only manifest deliberate indifference to the plaintiff's          rights,  but must also  shock the  conscience."   Id.   The Evans                                                            ___       _____          paradigm is fully applicable in the instant case.                                          5                    Applying  Evans, we  are  satisfied  that the  district                              _____          court  appropriately  granted  brevis   disposition.    When  the                                         ______          officers first spotted the Honda, they had good reason to attempt          to  stop it.   They knew  that its  driver and  his passenger had          created a disturbance at McDonald's.  From  their experience with          such disturbances,  coupled with the  Honda's rate of  speed, the          officers were justifiably concerned that the driver was under the          influence  of alcohol (a concern which doubtless was magnified by          the  officers' awareness  that New  Year's Eve  was approaching).          When the Honda  initially failed  to stop despite  the siren  and          flashing lights,  the stakes  increased.   At that  juncture, the          officers were  warranted in mounting  a pursuit;  leaving such  a          driver on the road would not only stymie law enforcement but also          endanger the public.                    To be sure, as  the chase progressed, the Honda's  wild          driving plainly created an escalating risk  of harm to bystanders             but the officers' continuation  of the pursuit  must be judged          against  the exigencies of the situation that had developed.  The          law enforcement interest in apprehending the Honda had grown,  as          had  the  danger to  the public  inherent  in leaving  a reckless          (potentially inebriated)  driver on the  road.  Under  Evans, the                                                                 _____          question is not whether  the officers' decision to dog  the Honda          was  sound    decisions of  this sort  always involve  matters of          degree   but, rather,  whether a rational jury  could say it  was          conscience-shocking.  Here, as in Evans, we think not.                                              _____                    The plaintiff asseverates that this case is  materially                                          6          different  from  Evans  because,   here,  the  officers'  conduct                           _____          violated departmental  rules, state  law, and  an order  from the          dispatcher  to cease and  desist.   But to  the extent  that this          asseveration  is  supported  by  the  record,  these  attributes,          individually and collectively, do not suffice to  tip the scales.          We explain briefly.                    The  plaintiff's assertion  that the  officers violated          departmental rules finds  some purchase  in the record.   A  1988          memorandum authored by the Saugus police chief, Donald M. Peters,          directs officers to "engage in high speed chases only in cases of          serious felonies."   Although  it turned  out that  the officers'          quarry  had  committed  serious  felonies  (rape,  burglary,  and          larceny of a motor vehicle), it is uncertain whether the officers          had any  inkling of this circumstance.  See supra note 2.  Still,                                                  ___ _____          assuming for  argument's sake that McGrath and Putnam mounted the          chase  in   contravention  of  a  departmental   regulation,  the          violation  would  not  transgress  the   "shock  the  conscience"          standard.                    A regulatory violation, like  a violation of state law,          is  not inherently  sufficient to support  a    1983 claim.   See                                                                        ___          Martinez v. Colon, 54 F.3d 980, 989 (1st Cir.), cert. denied, 116          ________    _____                               _____ ______          S.  Ct. 515 (1995); PFZ  Properties, Inc. v.  Rodriguez, 928 F.2d                              _____________________     _________          28, 32 (1st Cir. 1991);  Amsden v. Moran, 904 F.2d 748,  757 (1st                                   ______    _____          Cir.  1990) ("Even  bad-faith  violations of  state  law are  not          necessarily  tantamount to  unconstitutional deprivations  of due          process."); see also Davis  v. Scherer, 468 U.S. 183,  196 (1984)                      ___ ____ _____     _______                                          7          (rejecting  argument that  an official's  conduct is  objectively          unreasonable  when  it  violates  a  statute  or  regulation  and          admonishing  that it  is not  "always fair,  or sound  policy, to          demand official compliance with statute and regulation on pain of          money damages").   While departmental regulations  are helpful in          measuring police officers'  conduct against the  Evans benchmark,                                                           _____          courts must look past the regulations to the officers' underlying          actions to determine whether their behavior shocks the conscience          (and,  thus,  violates a  plaintiff's  right  to substantive  due          process).   See Temkin v. Frederick County Comm'rs, 945 F.2d 716,                      ___ ______    ________________________          723  (4th Cir. 1991) (applying this principle in a police pursuit          case).                    There  is  nothing  in  state  law  that  supports  the          plaintiff's  contention that  the  officers'  actions  shock  the          conscience.   In this regard,  the plaintiff's main  claim to the          contrary   that  the officers  abridged state law  by driving  in          excess   of   the   speed  limit       is   a   figment  of   his          mischaracterization of the legal rules governing the operation of          emergency vehicles.  Massachusetts law allows a police officer to          exceed  the speed limit "in an emergency and while in performance          of  a public duty  . . .  if he exercises caution  and due regard          under the circumstances  for the safety of persons and property."          Mass.  Gen. L. ch.  89,   7B  (1989).  While  the plaintiff might          argue  plausibly that the officers failed to exercise due care in          pursuing the Honda, negligence under state law does not amount to          a constitutional violation.  We do not believe that any court, on                                          8          this  scumbled   record,  could   find  the   officers'  possible          negligence to be conscience-shocking.                    The plaintiff's final point is cut from the same cloth.          The  plaintiff  asserts  that   McGrath  and  Putnam  ignored  an          instruction  by   a  supervisory  officer,   issued  through  the          dispatcher,  to break off their  pursuit of the  Honda.  Although          there is no  evidence in  the record to  support this  assertion,          Judge  Wolf noted that he would have allowed further discovery to          investigate it had he found it to be outcome-determinative.  Even          assuming,  therefore, that  this  claim is  factually correct,  a          supervisor's  judgment that  a pursuit  should be  halted neither          increases nor decreases the risks inherent in the pursuit itself.          In  the circumstances of this case    a brief chase on a limited-          access highway on the trail of a vehicle which appeared to pose a          significant threat  to public safety    the officers'  failure to          heed  their  supervisor  does   not  sink  to  the  level   of  a          constitutional breach.                    In  the last  analysis,  the signals  are  mixed    the          inclement weather, the relatively high speeds, and the overriding          of a departmental  regulation are troubling, but  these facts are          ameliorated because the chase was brief (under five  minutes), it          took  place on a six-lane,  limited-access highway, and turning a          blind eye  would have  left the public  in jeopardy    and  mixed          signals  are not the stuff  from which a  finding that particular          conduct shocks the conscience can easily be derived.                                          9                    We need go no further.4  Even though we acknowledge the          imprecision of  the "shock the  conscience" test, see  Evans, 100                                                            ___  _____          F.3d  at 1039, the officers' conduct here is more reasonable than          that  displayed  in  several  cases  in  which  appellate  courts          understandably  have held  police  behavior not  to traverse  the          constitutional  line.  See, e.g.,  Fagan v. City  of Vineland, 22                                 ___  ____   _____    _________________          F.3d  1296,  1299-1300  (3d Cir.  1994)  (en  banc) (involving  a          pursuit at up to 80 m.p.h.  through many red lights); Temkin, 945                                                                ______          F.2d at 718 (involving a pursuit at  speeds up to 105 m.p.h. on a          narrow, two-lane  highway).  Because we agree  with the decisions          in those cases, we  also agree, a fortiori, that the  court below          correctly decided the case at bar.          Affirmed.          Affirmed.          ________                                        ____________________               4Of course,  our holding  today does  not mean  that injured          parties are necessarily remediless in these situations; state law          provides an avenue for recourse (although perhaps a less generous          one).   However, exploring  that avenue is  beyond the legitimate          scope of this opinion.                                          10
