                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 99-2938
                                  ___________

Jennifer Neal, Personal Representative   *
of the Estate of deceased Willie Neal,   *
Jr.; Jennifer Neal, on her own behalf,   *
                                         *
             Appellants,                 *
                                         * Appeal from the United States
Willie Neal, Sr.; Jamelah Neal; Whitney * District Court for the
Neal, by their next friend nfr Jennifer  * Eastern District of Missouri.
Neal,                                    *
                                         *
             Plaintiffs,                 *
                                         *
      v.                                 *
                                         *
St. Louis County Board of Police         *
Commissioners; St. Louis County Police *
Department; Ronald Battelle, Chief of *
St. Louis County Police Department;      *
Robert Flagg, Chairman; Gene Warmann,*
Vice Chairman; Patrick Pwardowski,       *
Secretary; Sheila Hoffmeister, Member; *
Leon Burke, member, comprising the       *
St. Louis County Board of Police         *
Commissioners; Carl Peterson,            *
                                         *
             Appellees.                  *
                                    ___________

                            Submitted: April 12, 2000
                                Filed: July 3, 2000
                                 ___________
BeforeWOLLMAN, Chief Judge, MAGILL, Circuit Judge, and FRANK,* District
      Judge.
                            ___________

MAGILL, Circuit Judge.

       This appeal requires us to decide whether a police officer violates the Fourteenth
Amendment's guarantee of substantive due process by accidently shooting another
officer while attempting to protect the other officer from an armed suspect. We answer
no, and hold that in such circumstances only a purpose to cause harm to the threatened
officer will satisfy the element of conscience-shocking conduct necessary for a due
process violation.

                                           I.

       On January 29, 1997, Officer Willie Neal asked Officer Carleton Peterson to
accompany him on an undercover operation that Neal had arranged for later that day.
Peterson agreed to assist Neal, subject to the approval of Peterson's supervisor,
Sergeant Bill Hines. After learning of the planned operation, Sergeant Hines asked
Neal if he wanted additional backup officers to participate in the operation. Neal, the
senior officer involved in the operation, refused the offer of additional backup.

      Later that afternoon, Neal and Peterson drove to Mac's Package Liquor Store
(Mac's), located at 5956 Natural Bridge Road in Saint Louis. Neal parked his car
perpendicular to and facing the west wall of the building. Within minutes of arriving
at Mac's, a person later identified as Jerome Baker approached the car from the
passenger side and looked in the window at Peterson. Baker then walked around the
car and headed towards Neal. Neal exited the vehicle and approached Baker. Baker

      *
       THE HONORABLE DONOVAN W. FRANK, United States District Judge for
the District of Minnesota, sitting by designation.

                                          -2-
shook Neal's hand and engaged Neal in conversation. As Baker and Neal talked, they
walked to the southwest corner of Mac's building.

        After observing Baker and Neal talk for a few moments, Peterson saw Neal raise
his left hand in what he recognized as a sign of trouble. Peterson also realized that he
could no longer see Baker, although Neal had never left his sight. Peterson got out of
the undercover car and slowly moved to where he could see the southwest corner of
the building. When he looked around the building's corner, he was surprised to see
Baker pointing a pistol directly at Neal's head, jabbing the weapon in a hostile and
threatening manner, and forcing Neal to lower himself to the ground.

        Peterson announced he was a police officer and ordered Baker to drop his gun.
Upon hearing Peterson's announcement, Baker whirled around and immediately started
firing at Peterson. Peterson returned two shots at Baker in an attempt to defend himself
and Neal. Baker continued to fire, forcing Peterson to dodge to his left. Baker fled the
scene before Peterson had the opportunity to fire any additional shots at the armed
suspect.

       Peterson noticed Neal was injured and assisted him back into the vehicle.
Peterson then requested nearby witnesses to inform the police that Neal had been shot
during the gunfight. When Emergency Medical Services personnel arrived at the scene,
they examined Neal and declared him dead at 4:02 p.m. The Saint Louis Medical
Examiner determined that Neal died due to a single bullet wound which entered the left
side of his chest, traveled through both of his lungs and through his right arm. It was
later determined that Peterson fired the bullet which struck and killed Neal. At the time
of the shootout, Peterson did not realize that he had shot Neal. Moreover, he did not
believe that Neal would be endangered by the shots he fired at Baker as Neal was lying
on the ground.

      On January 30, 1998, Neal's surviving family members initiated suit pursuant to

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42 U.S.C. § 1983, alleging that Peterson violated Neal's Fourteenth Amendment
substantive due process rights by not following departmental procedures during the
undercover operation. Plaintiffs also named the County of Saint Louis, the Chief of the
Saint Louis County Police Department, and Members of the Saint Louis County Board
of Police Commissioners as defendants in this case, arguing that these defendants failed
to train and supervise Peterson in the proper procedures for undercover operations, or
otherwise maintained policies or customs which contributed to the accidental shooting
of Neal.

       The district court1 dismissed plaintiffs' claims against Officer Peterson, finding
that plaintiffs' allegation that Peterson acted with "deliberate indifference" towards
Officer Neal did not state a Fourteenth Amendment substantive due process claim.
Rather, given the circumstances of this case, the district court held that only a purpose
to cause harm unrelated to the legitimate objective of making an arrest will satisfy the
element of arbitrary conduct that shocks the conscience. The district court also
dismissed plaintiffs' claims against Saint Louis County, the Chief of Police, and the
police board members, finding that these defendants could not be held liable because
Officer Peterson did not violate Officer Neal's constitutional rights. For reasons to be
discussed, we affirm.

                                           II.

       Appellants first argue that the district court erred in holding an allegation of
"deliberate indifference" or "recklessness" is insufficient to state a Fourteenth
Amendment due process claim based on an officer's accidental shooting of a fellow
officer during a shootout with an armed suspect. We reject appellants' argument.



      1
        The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.

                                          -4-
       The Supreme Court has recognized that the Fourteenth Amendment's provision
that "[n]o state shall . . . deprive any person of life, liberty, or property, without due
process of law," U.S. Const. amend. XIV, § 1, "guarantees more than fair process,"
Washington v. Glucksberg, 521 U.S. 702, 719 (1997), and covers a substantive sphere
as well, "barring certain government actions regardless of the fairness of the procedures
used to implement them," Daniels v. Williams, 474 U.S. 327, 331 (1986). The
allegation in this case amounts to such a claim. Plaintiffs essentially allege that
Peterson's actions in causing Neal's death were an abuse of executive power so clearly
unjustified as to be barred by the Fourteenth Amendment. Whether Peterson's actions
were such an abuse of power turns on whether Peterson's actions towards Neal shocks
the conscience in such a way as to violate the rights protected by the Fourteenth
Amendment. See County of Sacramento v. Lewis, 118 S. Ct. 1708, 1716-21 (1998).

       In situations where a state actor is afforded a reasonable opportunity to
deliberate various alternatives prior to electing a course of action, the chosen action will
be deemed "conscience shocking" if the action was taken with "deliberate indifference."
See Lewis, 118 S. Ct. at 1719. However, in rapidly evolving, fluid, and dangerous
situations which preclude the luxury of calm and reflective deliberation, a state actor's
action will shock the conscience only if the actor intended to cause harm. See id. at
1720. In the latter situations, as a practical matter, state actors do not have time to
engage in actual deliberation. Thus, in these types of situations, the Supreme Court has
recognized that liability "turn[s] on whether force was applied in a good faith effort . . .
or maliciously and sadistically for the very purpose of causing harm." Id. (holding that
an officer's high-speed chase with no intent to harm suspects physically or worsen their
legal plight does not give rise to liability under the Fourteenth Amendment) (internal
citation omitted).

      Relying on Lewis, the district court held that plaintiffs' allegations of Peterson's
"deliberate indifference" were insufficient to state a cause of action under the
Fourteenth Amendment because only a purpose to cause harm unrelated to law

                                            -5-
enforcement objectives will "shock the conscience" in cases requiring officers to
exercise quick judgment in a dangerous and rapidly evolving situation. The district
court found that Officer Peterson did not have time to deliberate about his actions, but,
rather, responded quickly and decisively to protect Officer Neal from a criminal suspect
who was pointing a gun in a threatening manner at Neal's head. According to the
district court, Officer Peterson did not have the luxuries of time and opportunity to
deliberate and weigh competing interests before acting to protect Officer Neal from
danger. We agree. Thus, unless Peterson acted "maliciously and sadistically for the
very purpose of causing harm," his accidental shooting of Neal did not violate Neal's
Fourteenth Amendment rights. See Lewis, 118 S. Ct. at 1720. Plaintiffs admit that
Peterson accidentally shot Neal in an attempt to protect Neal from harm. Therefore,
the district court properly dismissed their claims based on Officer Peterson's "deliberate
indifference" to Officer Neal's welfare.

       Plaintiffs attempt to redirect this Court's focus to the hour and a half before the
shootout to show that Officer Peterson had time to deliberate departmental policies and
practices designed to protect officers involved in undercover operations. More
specifically, plaintiffs argue that Peterson was deliberately indifferent to the following
policies and practices which might have saved Neal's life: 1) pre-transaction planning
or briefing, 2) use of authorized ammunition, 3) keeping fellow officers in sight during
the undercover operation, 4) use of wires to record and monitor conversations between
fellow officers and suspects, 5) use of additional officers to provide backup, and 6) use
of a bulletproof vest. Plaintiffs suggest that the "deliberately indifferent" standard,
rather than the "malicious or sadistic" standard, should be used because Peterson had
time to consider these policies and deliberately chose to disregard them at a time when
both Neal and he were free from danger. We reject plaintiffs' argument.

      Given the facts of this case, we believe that it is inappropriate to look outside the
time period immediately preceding Peterson's decision to fire his gun to determine
whether Peterson's conduct was truly conscience shocking. More specifically, we

                                           -6-
refuse to consider violations of departmental guidelines allegedly committed
approximately one and a half hours before the shootout between Baker and Peterson.
Police department guidelines and policies do not create constitutional rights under the
substantive due process clause of the Fourteenth Amendment. See Edwards v. Baer,
863 F.2d 606, 608 (8th Cir. 1989); see also Lewis, 118 S. Ct. at 1720-21 (holding that
"[r]egardless whether [defendant's] behavior offended the reasonableness held up by
tort law or the balance struck in law enforcement's own codes of sound practice, it does
not shock the conscience, and [defendant's] are not called upon to answer for it under
§ 1983."); Claybrook v. Birchwell, 199 F.3d 350, 360 (6th Cir. 2000) (holding that
even if the actions of the three defendant patrolmen violated departmental policy or
were otherwise negligent, no rational fact finder could conclude that those peace
enforcement operatives acted with conscience shocking malice or sadism towards the
unintended shooting victim). Thus, even assuming we look beyond the immediate
circumstances of the shooting, plaintiffs could not sustain their due process claim
because of Peterson's alleged indifference to departmental policies and regulations.2

                                          III.

      Because Peterson did not violate Neal's Fourteenth Amendment rights, the
County and City Official defendants cannot be held liable for a failure to train or
supervise Officer Peterson. See Brodenicki v. City of Omaha, 75 F.3d 1261, 1266 (8th


      2
        We note that Neal, the senior officer involved in the undercover operation that
gave rise to the instant case, had the discretion to terminate the operation at any time,
as well as the discretion to use a wire or a bullet proof vest. Neal decided to continue
the operation without the use of either device, possibly to prevent alerting a suspect to
his true identity in the event of a pat down. Officer Peterson did not have the authority
to order Neal to do otherwise. Moreover, it was Neal who refused Sergeant Hines's
offer to provide additional police officers for the mission. Thus, many of the alleged
violations of departmental regulations were committed not by Peterson, but rather by
Neal.

                                          -7-
Cir. 1994) (holding that a city cannot be held liable under an inadequate training or
municipal custom theory unless the defendant police officer is found liable on the
underlying substantive claim). Thus, we affirm the district court's dismissal of
plaintiffs' claims against Saint Louis County, the Chief of Police and the Police
Commissioners.

                                          IV.

       A police officer does not violate Neal's substantive due process rights by acting
"deliberately indifferent" in accidently shooting another officer while attempting to
protect the other officer from an armed suspect who was holding a gun to the head of
the other officer. Rather, in such circumstances, only a purpose to cause harm to the
threatened officer is sufficiently conscience shocking to give rise to a Fourteenth
Amendment violation. Thus, the district court properly dismissed plaintiffs' claims in
their entirety. For reasons discussed, we affirm.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -8-
