                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-2004

Hall v. Feigen
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2784




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"Hall v. Feigen" (2004). 2004 Decisions. Paper 496.
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                                     NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                _______________

                     No. 03-2784
                   _______________


                ELIZABETH R. HALL

                           v.

                  TRACY FEIGAN;
                TEMPTATIONS I, INC.
          d/b/a THE NEW GOLDEN MOON;
               JOHN DOE, MANAGER;
              JOHN DOE, BARTENDER;
             EASTAM PTON TOWNSHIP;
         GERALD MINGIN, POLICE CHIEF;
                JOHN DOE, CAPTAIN;
             JOHN DOE, LIEUTENANT;
               JOHN DOE, SERGEANT;
       STEPHEN SAWYER, POLICE OFFICER

         (N.J. (Camden) D.C. No. 00-cv-06254)


      DANIEL MCCORMACK, ESQ., Guardian of
       Elizabeth R. Hall, an incapacitated person;
                ELIZABETH R. HALL


                           v.


         TRACY FEIGEN a/k/a TRACEY FEIGEN;
                 TEMPATIONS I, INC.,
   a/k/a NEW GOLDEN MOON, a/k/a GOLDEN MOON
           d/b/a THE NEW GOLDEN MOON;
LOUIS SERLENGA; JAMES SERLENGA; SERLENGA, INC.
             JOHN DOE, MANAGER; JOHN DOE, BARTENDER;
           ABC FICTITIOUS CORPORATION; JOHN DOES, #1-15;
        EASTAM PTON TOWNSHIP; GERALD MINGIN, POLICE CHIEF;
              JOHN DOE, CAPTAIN; JOHN DOE, LIEUTENANT;
        JOHN DOE, SERGEANT; STEPHEN SAWYER, POLICE OFFICER

                         (N.J. (Camden) D.C. No. 01-cv-01639)


                                   Elizabeth R. Hall;
                                Daniel M cCormack, Esq.,

                                                Appellants

                   ____________________________________

                 On Appeal From the United States District Court
                          For the District of New Jersey
                   (D.C. Nos. 00-cv-06254 and 01-cv-01639)
                   District Judge: Honorable Robert B. Kugler
                 _______________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                                June 28, 2004

           Before: AMBRO, BECKER and GREENBERG, Circuit Judges

                                 (Filed: July 16, 2004)

                             _______________________

                                    OPINION
                             _______________________

BECKER, Circuit Judge.

                                           I.

                                          A.



                                           2
       This appeal by Elizabeth R. Hall from the grant of summary judgment against her

in favor of the defendants Eastampton Township, Chief Gerald Mingin, and Police

Officer Stephen Sawyer is set in tragic circumstances. The facts, as set forth in Hall’s

brief, which must be viewed in the light most favorable to her as the non-moving party,

are as follows.

       On April 10, 1999, at approximately 1:45 a.m., Hall was backing out of her

driveway when her car was struck by a vehicle driven by Tracy Feigan. As a result of the

accident, Hall suffered permanent brain damage and is no longer able to take care of her

child. Shortly before crashing into Hall’s car, Feigan, a 27-year-old go-go dancer, had

stopped at a Mobil On the Run gas station convenience store, having just left work at the

Golden Moon strip club, where she had consumed at least five alcoholic beverages during

her shift. When Feigan entered the Mobil On the Run, she recognized defendant Stephen

Sawyer, a police officer of defendant Eastampton Township, who had stopped her for

speeding approximately two months before. Sawyer was on duty at the time of the

convenience store encounter.

       Feigan was a recidivist speeder who had been classified by the State of New Jersey

as a “persistent violator.” She had eleven speeding convictions and her driving privileges

had been suspended ten times. When Officer Sawyer had stopped Feigan for speeding

approximately two months before, he had downgraded Feigan’s offense and had only

cited her for not wearing a seatbelt, a non-moving violation, because given the excessive



                                             3
number of points on her license, she would have lost her driving privileges if she had

been convicted of speeding. Not surprisingly, when Feigan encountered Sawyer at the

convenience store on April 10, 1999, she went up to him, kissed him on the cheek and

thanked him for not giving her a speeding ticket a couple of months before. When she

did so, Sawyer smelled alcohol on her breath and hence knew that she had been drinking.

       At the time, Feigan was smoking a cigarette in the store, and Sawyer repeatedly

told her to put it out. It was Sawyer’s understanding that Feigan had just gotten off work

at the Golden Moon, where the go-go dancers are given drinks as tips. Despite this

knowledge, and the fact that he knew Feigan had been drinking and thought that she was

intoxicated, and also despite the fact that Sawyer knew that she had a very poor driving

record, Sawyer did not attempt to determine if Feigan was drinking and driving, or

attempt to enforce the driving while intoxicated laws against her. Feigan testified that

while she was talking to Sawyer in the convenience store, she probably had her keys in

her hand.

       After joking around with Officer Sawyer, Feigan left the store and got behind the

wheel of her car, which was parked in front of the convenience store and easily visible to

Sawyer. Less than five minutes later she crashed into Hall’s car. At the time of the

collision, Feigan did not have her headlights on.




                                            B.



                                             4
       Hall’s position on appeal is that the facts support a substantive due process claim

against the defendants on two levels. First, Hall maintains that Sawyer’s decision not to

enforce the driving while intoxicated laws against Ms. Feigan was arbitrary and

capricious and “shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. 833,

846 (1998). Second, she submits that the policy and/or custom of Eastampton Township

of allowing its police officers “unfettered discretion” violated the Due Process Clause by

failing to provide any guidelines or limits on their discretion, and that this policy and/or

custom authorized and encouraged the unconstitutional arbitrary and discriminatory

enforcement of the law. See City of Chicago v. Morales, 527 U.S. 41, 56, 63-64 (1999). 1

Defendants respond that this case involves no more than negligence, for which the

Constitution does not provide a remedy. The District Court, after analyzing the relevant

cases, concluded that Hall had not been deprived of a constitutionally protected right.

The case is not easy to categorize, and there is no precedent directly on point. However,

reasoning upon general Constitutional principles, we are satisfied that we must affirm.




                                              II.

       In order to maintain a § 1983 claim, “a plaintiff must show that the defendant

deprived him of a right or privilege secured by the Constitution or laws of the United



  1
   There is some confusion as to whether Hall proceeded in the District Court on a state
created danger theory of liability, but she has clearly disclaimed any reliance on that
theory in this appeal.

                                              5
States while acting under color of state law.” Williams v. Borough of West Chester, 891

F.2d 458, 464 (3d Cir. 1989). As noted above, Hall relies principally on County of

Sacramento v. Lewis, 523 U.S. 833, and the proposition that Sawyer’s decision not to

enforce the driving while intoxicated laws against Feigan was arbitrary and capricious

and “shocks the conscience.” Hall’s brief enjoins us to view the record as a whole, to

focus sharply on the circumstances facing the police officer, and to consider the lofty

principles that generally govern the obligations of police officers. It also urges us to

focus on the principles reflected in Section 3:10.2 of the Eastampton Police Manual,

which provides that “All members. . . must remain completely impartial toward all

persons coming to the attention of the department.” The handbook also charges

Eastampton Township police officers “with the enforcement of all provisions of local and

state traffic codes,” and provides that “[f]ailure to take appropriate action in traffic

violations cases is considered neglect of duty.”

       We have considered all these matters just as Hall suggests, but are unable to

conclude that the failure of Officer Sawyer to take action under the facts described in Part

I.A satisfies the exacting “shocks the conscience” test. Moreover, Hall cites to no case

with facts anywhere similar to those that support her position.

       To be sure, when a person is damaged by outrageous police conduct but the

resulting injury does not neatly fit within a specific constitutional remedy, the injured

party may, depending upon the circumstances, pursue a substantive due process claim



                                               6
under § 1983. See United States v. Smith, 7 F.3d 1164, 1168 (9th Cir. 1993) (explaining

that circumstances surrounding entrapment are particularly prone to implicate notions of

fundamental fairness). But the conduct at issue in this case was not outrageous: Sawyer

never even saw Feigan operate the automobile. While Sawyer may well have been

negligent, the Due Process Clause is not implicated by a negligent act causing unintended

loss of or injury to life. See Daniels v. Williams, 474 U.S. 327 (holding that injuries

sustained by a prisoner due to the negligent conduct of a correctional officer did not

constitute a deprivation of a Fourteenth Amendment right).

       In DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989), the

Supreme Court explained that “nothing in the language of the Due Process Clause itself

requires the State to protect the life, liberty, and property of its citizens against invasion

by private actors. The Clause is phrased as a limitation on the State’s power to act, not as

a guarantee of certain minimal levels of safety and security.” Id. at 195. The Court

further explained that the Due Process Clause “forbids the State itself to deprive

individuals of life, liberty, or property without ‘due process of law,’ but its language

cannot fairly be extended to impose an affirmative obligation on the State to ensure that

those interests do not come to harm through other means.” Id. In the absence of a duty to

protect Hall, and in the absence of evidence that Sawyer acted in willful disregard of

actual knowledge of a serious risk of Hall’s safety (there is none under the facts recited in

Part I.A), the case does not come close to meeting the “shocks the conscience” test.



                                               7
                                             III.

       Hall also claims that she produced sufficient facts from which a jury could infer

that Eastampton Township had an unconstitutional policy and/or custom of allowing its

police officers unbridled discretion in the enforcement of the law. In particular, she

points to the testimony of Policy Chief Mingin who explained in his deposition that

Eastampton Township police officers could exercise their discretion in deciding whether

to charge individuals with certain driving offenses or whether to downgrade the charges,

again solely at the officer’s discretion. Hall contends that this testimony is sufficient to

establish an unconstitutional policy and/or custom.

       Hall’s argument rests largely on Kolender v. Lawson, 461 U.S. 352 (1983), where

the Supreme Court held that without “minimal guidelines, a criminal statute may permit a

standardless sweep [that] allows policemen, prosecutors, and juries to pursue their

personal predilections” and vests in police “a virtually unrestrained power to arrest and

charge persons with a violation.” Id. at 358, 360 (internal quotation marks and citations

omitted). Hall’s reliance on Kolender is misplaced. In Kolender, the Supreme Court

determined that a statute which required persons who loitered to provide a credible and

reliable identification and to account for their presence, when requested by a peace officer

under circumstances that would justify a Terry stop, was unconstitutionally vague within

the meaning of the Due Process Clause of the Fourteenth Amendment. The Court so held



                                              8
(1) because the statute failed to clarify what was contemplated by the requirement that a

suspect provide a credible and reliable identification and (2) because the statute vested

complete discretion in the hands of the police to determine whether the suspect had

satisfied the statute and was therefore free to go in the absence of probable cause to

arrest. But in this case, Hall does not allege that the police over-reached, as the statute in

Kolender permitted. Rather, she complains that Officer Sawyer under-reached by failing

to conduct an investigation even though he had reason to believe that Feigan was

intoxicated.

       The difference is significant. While Kolender had a constitutionally protected

right to be free of discriminatory conduct directed at him, Hall has no substantive due

process right, as a third party, to be the beneficiary of non-discriminatory (here

preferential) conduct allegedly directed at Feigan. While Officer Sawyer’s decision not to

investigate the state of intoxication of a go-go dancer who kissed him in gratitude for

having previously not ticketed her for speeding may seem unsavory, Officer Sawyer had

no specific duty to conduct such an investigation under the circumstances of this case.

Despite her protestations to the contrary, Hall can point to no cognizable substantive due

process right that was violated in this situation.




                                              IV.

       Because Hall can establish neither that Officer Sawyer’s decision not to investigate



                                               9
Feigan’s level of intoxication was arbitrary and capricious nor that the policy and/or

custom of Eastampton Township allowed its police officers “unfettered discretion” that

violated the Due Process Clause by failing to provide any guidelines or limits on their

discretion, we will affirm the District Court’s grant of summary judgment to the

defendants.




                                            10
