                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-24-1999

Davis v. Twp. of Hillside
Precedential or Non-Precedential:

Docket 98-6176




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Filed August 24, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-6176

HERRON GARNETT DAVIS,
       Appellant,

v.

TOWNSHIP OF HILLSIDE; PEARL WIGGINS;
JAMES WIGGINS; CHRISTINA WIGGINS;
SAM SMITH; DEIDRA BOSTON; CHRISTINA RASH;
LOREN RAGIN, Police Officer; RAGIN, Police Officer;
ROE, Police Officer; POLICE OFFICERS I through X;
TERRENCE CLERK; LOUIS PANARESE, Sergeant;
JOHN SENCHYSHYN, Patrolman;
GERARD PYDESKI, Patrolman

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 96-cv-05299)
District Judge: Dickinson R. Debevoise

Argued June 3, 1999

Before: SCIRICA, McKEE, Circuit Judges, and
SCHWARZER,* District Judge

(Filed August 24, 1999)



_________________________________________________________________

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
       ROBERT T. RICHLAN, ESQUIRE
        (ARGUED)
       Paragano & Keough
       75 Claremont Road, 1st Floor
       Bernardsville, NJ 07924

       Attorneys for Herron Garnett Davis,
       Appellant

       MORRIS R. ZUCKER, ESQUIRE
        (ARGUED)
       JAMES K. HANEY, ESQUIRE
       Zucker, Facher & Zucker
       100 Executive Drive
       Suite 360
       West Orange, NJ 07052

       Attorneys for Township of Hillside;
       Loren Ragin; Terrence Clerk; Louis
       Panarese; John Senchyshyn; Gerard
       Pydeski, Appellees

       JEAN-CLAUDE LABADY, ESQUIRE
        (ARGUED)
       MAUREEN M. JOHNSTON, ESQUIRE
       Law Offices of Robert Sanderford
       17-01 Polett Drive
       P.O. Box 768
       Fairlawn, NJ 07410

       Attorneys for Deidra Boston, Appellee

OPINION OF THE COURT

SCHWARZER, District Judge:

We must decide whether plaintiff is entitled to go to trial
on his substantive due process claim on evidence that the
defendant police officers conducted a high-speed chase of a
suspect in violation of regulations, ending when their
vehicle rammed the pursued vehicle causing a multi-car
collision which severely injured plaintiff, a pedestrian
bystander. We hold that County of Sacramento v. Lewis,
118 S.Ct. 1708 (1998), is dispositive and that, in the

                               2
absence of evidence from which a jury could infer a
purpose to cause harm unrelated to the legitimate object of
the chase, the evidence does not satisfy the requisite
element of arbitrary conduct shocking the conscience.
Accordingly, we affirm the summary judgment for
defendants.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of November 13, 1994, Dwayne Cook was
driving a stolen Acura in a residential neighborhood in
Newark, New Jersey. Police officers in two patrol cars
observed the Acura stopped in a traffic lane at a stop sign
for what the officers considered an unusually long time.
Noting also damage to the car's rear end, the officers
decided to investigate and one of the patrol cars moved
alongside the Acura to pull it over while the officers had the
vehicle plate checked. At this point the Acura pulled away,
making a left-hand turn out of the intersection. One of the
police cars pulled ahead, coming close to hitting the Acura.
The Acura then sped away with the marked police cars in
pursuit as close as one car length at speeds up to seventy
miles an hour with their overhead lights on but without
sirens activated. Cook, knowing he was driving a stolen car,
did not stop until one of the police cars, as Cook described
it, bumped into the rear of the Acura, giving it a hard push.
This caused Cook to hit his head on the steering wheel and
to pass out. The Acura spun out of control and collided
with two other cars, one of which was propelled into
plaintiff, who was standing on the sidewalk, severely
injuring him.

Plaintiff filed this action in the District Court against the
Township of Hillside, individual Hillside police officers, and
owners of the other cars involved in the collision alleging
violations of federal and state law. The District Court
granted summary judgment for defendants on all of the
federal claims and dismissed the state law claims without
prejudice under 28 U.S.C. S 1367(c) (1994). Plaintiff appeals
the judgment for the individual officers on his 42 U.S.C.
SS 19831 and 1985 (1994) claims and the dismissal of his
state law claims.
_________________________________________________________________

1. The District Court interpreted plaintiff 'sS 1983 claim as a
substantive
due process claim. On appeal, plaintiff properly does not take issue with

                               3
DISCUSSION

I. 42 U.S.C. S 1983 SUBSTANTIVE DUE
PROCESS CLAIM

Plaintiff contends that the facts of this case make it
distinguishable from Sacramento County v. Lewis and
therefore preclude summary judgment. Our review is
plenary, see Ingram v. County of Bucks, 114 F.3d 265, 267
(3d Cir. 1998); we view disputed facts in the light most
favorable to plaintiff, and we draw all reasonable inferences
in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986); Getahun v. Office of the Chief
Administrative Hearing Officer of the Executive Office for
Immigration Review of the United States Department of
Justice, 124 F.3d 591, 594 (3d Cir. 1997).

Plaintiff's attempted distinction of Lewis rests on three
premises: (1) that the officers were not acting on a report of
the commission of a crime; (2) that they willfully violated
applicable police department regulations; and (3) that they
used deadly force on the pursued vehicle. We consider
these purported distinctions seriatim.2
_________________________________________________________________

that interpretation. Even if the use of a police car to stop Cook's flight
could be found to be a Fourth Amendment seizure, see Brower v. County
of Inyo, 489 U.S. 593, 599 (1989); Adams v. St. Lucie County Sheriff's
Dep't, 962 F.2d 1563, 1571 (11th Cir. 1992), the claim would be
personal to Cook and could not be asserted by a bystander such as
plaintiff. See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). Substantive
due process analysis is therefore appropriate in this case because
plaintiff 's claim is not covered by the Fourth Amendment. Lewis, 118
S.Ct. at 1714.

2. Another distinction, not raised by plaintiff and immaterial to the
outcome of this case, is that in Lewis the injury was to a suspect while
in this case it was to a bystander. In our pre-Lewis decision in Fagan v.
City of Vineland, 22 F.3d 1296 (3d Cir. 1994), we applied the shocks-the-
conscience standard to the S 1983 claims of bystanders, without
discussion. We agree with the Ninth Circuit's reasoning in Onossian v.
Block, 175 F.3d 1169, ____ (1999), that under Lewis "if a police officer
is justified in giving chase, that justification insulates the officer
from
constitutional attack, irrespective of who might be harmed or killed as a
consequence of the chase." See also Jones v. Sherill, 827 F.2d 1102,
1106-7 (6th Cir. 1987) (similar standard applied to injured bystander).

                               4
(1) In Lewis, the police pursued two boys on a motorcycle
which the officers observed operating at high speed. See
118 S.Ct. at 1712. Neither boy had anything to do with the
fight that had prompted the call that brought the officers to
the scene. See id. In this case, the officers' suspicions were
raised by Cook's unusually long stop at the intersection
and rear-end damage to the car. Nothing in Lewis suggests
that courts are free to second-guess a police officer's
decision to initiate pursuit of a suspect so long as the
officers were acting "in the service of a legitimate
governmental objective," id. at 1716, here, to apprehend
one fleeing the police officers' legitimate investigation of
suspicious behavior. Because such circumstances,
requiring a balancing of the need to stop a suspect's flight
from the law against the threat a high-speed chase poses to
others, "demand an officer's instant judgment, even
precipitate recklessness fails to [suffice for Due Process
liability.]" Id. at 1720. The critical factor in determining
whether Fourteenth Amendment liability for a high-speed
chase may be imposed is whether the officer's conduct can
be found to shock the conscience, for which the evidence
must show intent to harm the suspect physically. See id.

(2) In Lewis, the court of appeals had reversed summary
judgment for the defendant officer, finding a triable issue of
fact because he had "apparently disregarded the
Sacramento County Sheriff's Department's General Order
on police pursuits." Id. at 1712. The Supreme Court
reversed, holding that "high-speed chases with no intent to
harm suspects physically or to worsen their legal plight do
not give rise to liability under the Fourteenth Amendment,"
and that "[t]he fault claimed on [the officer's] part . . . fails
to meet the shocks-the-conscience test." Id. at 1720. Lewis
thus squarely refutes plaintiff's contention that the officers'
violation of police department regulations, which might
be probative of recklessness or conscious disregard of
plaintiff's safety, suffices to meet the shocks-the-
conscience test under the due process clause.

(3) In Lewis, the chase ended when the pursued
motorcycle tipped over, throwing Lewis to the pavement
where the police car coming to a stop accidentally skidded
into him causing his injury. Here, the chase ended when

                                5
the pursuing police car bumped into the rear of Cook's car,
causing him to lose control of the car, which led to the
collision in which plaintiff was injured. Plaintiff argues that
the deliberate ramming of Cook's car by the police vehicle
amounted to use of a deadly weapon, which permits the
drawing of an inference that the police acted with the intent
to cause physical injury. We disagree. Lewis does not
permit an inference of intent to harm simply because a
chase eventuates in deliberate physical contact causing
injury. Rather, it is "conduct intended to injure in some
way unjustifiable by any government interest [that] is the
sort of official action most likely to rise to the conscience-
shocking level." Id. at 1718 (emphasis added). It is not
disputed that the ramming occurred in the course of the
chase. That physical contact of some sort between the
pursued and pursuing vehicles might occur in the course of
a high-speed chase, particularly at its conclusion, is
foreseeable. It would undermine Lewis' premise to limit
liability to conscience-shocking conduct if courts were to
segment a high-speed chase and examine elements in
isolation from each other.

Here then, as in Lewis, the officers were faced with
lawless behavior--the flight from their investigation--for
which they were not to blame. They had done nothing to
cause Cook's high-speed driving or his flouting of their law-
enforcement authority. Cook's action was instantaneous
and so, by necessity, was the officers' response. Their intent
was to do their job as law enforcement officers, not to cause
injury. If they acted recklessly or imprudently, there is no
evidence that their actions "were tainted by an improper or
malicious motive." Id. at 1721. Because their actions did
not shock the conscience, they were entitled to summary
judgment.

II. 42 U.S.C. S 1985 CLAIM

Plaintiff also alleges that two of the individual police
officers who chased Cook violated 42 U.S.C. S 1985 (1994)
by filing false or misleading statements to investigators
about their conduct on the night of the accident in an
attempt to hide their culpable conduct. The only provision
of S 1985 that could be relevant to plaintiff 's allegation is
the second part of S 1985(2), which prohibits conspiracy to

                               6
obstruct justice with the intent to deny equal protection of
the laws. Because plaintiff does not allege that the officers
colluded with the requisite " `racial, or .. . otherwise class-
based, invidiously discriminatory animus,' " see Kush v.
Rutledge, 460 U.S. 719, 725 (1983) (quoting Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971)), the district court
correctly dismissed this claim.

III. STATE LAW NEGLIGENCE CLAIMS

Having dismissed all of plaintiff 's federal claims, the
district court dismissed without prejudice the state law
claims against the owners of the civilian cars involved in
the accident pursuant to 28 U.S.C. S 1367(c). The district
court had discretion to do so and we find no error.

CONCLUSION

The judgment is AFFIRMED.

                                7
McKEE, Circuit Judge, concurring:

I agree that the District Court's grant of summary
judgment to the defendants should be affirmed. I write
separately, however, to amplify my understanding of what
we hold today, because I am concerned that our decision
may be interpreted too broadly, and thereby result in an
unjustified extension of County of Sacramento v. Lewis, 118
S.Ct. 1708 (1998).

The mere fact that force may have been used while
effectuating an arrest does not automatically establish that
the force was "in relation" to a legitimate object of the arrest
under a S 1983 analysis. Davis must lose here, not because
the challenged force occurred "in relation to" a high-speed
chase, but because his allegations of a substantive due
process violation are rooted in negligence and allege, at
most, a reckless disregard of safety. That is clearly
insufficient under Lewis. However, I believe the evidence
here, taken in the light most favorable to the plaintiff, could
support allegations of an intentional ramming of the Acura
Cook was driving. Had Davis alleged such intentional
conduct, I do not think his suit would be appropriate for
summary judgment under Lewis.

I.

Paragraph 13 of the Complaint states: "plaintiff . . .
alleges that the police vehicle either struck the 1993 Acura
. . . or chased such vehicle at such a high rate of speed so
as to cause the (stolen) vehicle to collide with other
vehicles, setting off a chain reaction . . . ." Paragraph 14
alleges that the pursuing officers were: "grossly negligent
and [acted] with reckless and willful disregard for the safety
of others . . . " in commencing and continuing the chase.
Paragraph 18 alleges that the pursuing officers"either
operated their vehicles in a negligent fashion, or permitted
their vehicles to be operated in a negligent fashion such
negligence being a contributing factor in the . . . collision.
. . ." (emphasis added). Paragraph 21 alleges "the police
chase . . . was knowingly improper and with wilful and/or
reckless disregard for public safety and /or against
established police guidelines and was engaged in with

                               8
wanton, wilful and reckless disregard for the safety of Davis
and other persons and continued in such a manner as to
shock the conscience of any reasonable person."

As the majority correctly points out, Lewis requires more.
There, the Supreme Court held that absent "an intent to
harm suspects physically or to worsen their legal plight"
there could be no liability for a substantive due process
violation in the S 1983 context. Lewis, 118 S. Ct. at 1720.
It is the intent to inflict force beyond that which is required
by a legitimate law enforcement objective that "shocks the
conscience" and gives rise to liability under S 1983 for
injuries arising out of a high-speed chase. Id. at 1717
("conduct intended to injure in some way unjustifiable by
any government interest is the sort of official action most
likely to rise to the conscience-shocking level"). See also
Maj. Op. at 6. Here, as in Lewis, the "complaint alleges a
variety of culpable states of mind: negligently responsible
. . . reckless, gross negligence and conscious disregard for
[the plaintiff 's] safety . . . and oppression fraud and malice.
The subsequent summary judgment proceedings revealed
that the height of the fault actually claimed was conscious
disregard . . ." Id. at 1720. That is simply not sufficient.

In Lewis the Court was careful to note that the pursuing
officers may have acted imprudently, even recklessly, but
that the evidence did not support a conclusion that they
intended to "terrorize, cause harm, or kill" the decedent. Id.
at 1708. In fact, there the uncontradicted evidence was that
the police car skidded over 140 feet trying to stop once the
police saw that the fleeing motorcycle had crashed. That is,
"the chase ended when the pursued motorcycle tipped over,
throwing Lewis to the pavement where the police car
coming to a stop accidentally skidded into him causing his
injury." Maj. Op. at 5 (emphasis added). The fatal injuries
sustained by Lewis were clearly a tragic, unintended result
of the high-speed pursuit. There were no allegations that
the police deliberately ran the decedent over or rammed the
motorcycle.

Here, if the record supported a finding that police
gratuitously rammed Cook's car, and if plaintiff properly
alleged that they did so to injure or terrorize Cook, liability
could still attach under Lewis. Thus, for example, if

                               9
plaintiff alleged (and a fact finder could reasonably
conclude) that the officers rammed Cook to "teach him a
lesson" or to "get even" for subjecting them to the dangers
of such a chase, Lewis would not shield the officers from
liability even though they were ultimately effectuating an
arrest. However, the District Court held that under Lewis a
plaintiff must also provide evidence of a purpose to cause
harm "independent of the process of stopping the suspect."
Order at 9-10. I do not believe that is supported by Lewis.
If police officers decided to stop a fleeing suspect by
inflicting spinal cord injury in the hopes that the suspect
would never walk again, the application of such force would
not be truly "independent of the process of stopping the
suspect." Nevertheless, their intent to harm, injure or
terrorize the suspect might well shock the conscience and
subject them to liability under Lewis. Thus, I do not read
the majority opinion as holding that police can use any
amount of force during a high speed chase no matter how
tenuously the force is related to the legitimate law
enforcement objective of arresting the fleeing suspect.

It has long been established that law enforcement
officials may not act in a manner that "shocks the
conscience" even when their actions relate to the otherwise
legitimate object of obtaining credible evidence or
prosecuting criminal behavior. People of California v.
Rochin, 342 U.S. 165, 172 (1952) (pumping suspect's
stomach to obtain valuable, credible evidence of a drug
crime violates due process). Neither the decision in Lewis,
nor our decision here, creates a "high-speed-pursuit"
exception to the fundamental obligation of law enforcement
officials to respect "certain decencies of civilized conduct"
even when carrying out their official duties. Lewis, 118 S.
Ct. at 1717 (quoting Rochin, 342 U.S. at 173, with
approval). The police in Rochin were liable because, even in
the context of enforcing the law, "the Due Process Clause
[is] intended to prevent government officials `from abusing
their power, or employing it as an instrument of
oppression.' " Lewis, 118 S. Ct. at 1716 (quoting Collins v.
Harker Heights, 503 U.S. 115, 126 (1992)). "[I]t was not the
ultimate purpose of the government actors [in Rochin] to
harm the plaintiff, but they apparently acted with full

                               10
appreciation of what the Court described as the brutality of
their acts." Lewis, 118 S. Ct. at 1718 n.9.

Lewis merely establishes that the environment in which
law enforcement officers perform their duties informs the
substantive due process analysis.

       [W]hen unforeseen circumstances demand an officer's
       instant judgment, even precipitate recklessness fails to
       inch close enough to harmful purpose to spark the
       shock that implicates `the large concerns of the
       governors and the governed.'

Lewis, 118 S. Ct. at 1720. Accordingly, "high-speed chases
with no intent to harm suspects physically or to worsen
their legal plight do not give rise to liability under the
Fourteenth Amendment, redressible by an action under
S 1983." Id. If there is "reasonable justification [for their
actions] in the service of a legitimate governmental
objective," they are not liable under Lewis even though they
acted in a manner that was negligent or even reckless.
Lewis, 118 S. Ct. at 1716. In Lewis the Court stated:

       [W]hile prudence would have repressed [the officer's]
       reaction, the officer's instinct was to do his job as a law
       enforcement officer, not to induce [the motorcycle
       driver's] lawlessness, or to terrorize, cause harm or kill.
       Prudence, that is, was subject to countervailing
       enforcement considerations . . . there is no reason to
       believe that [the police] were tainted by an improper or
       malicious motive. . .3
_________________________________________________________________

3. Similarly, in Fagan v. City of Vineland, 22 F.3d 1296 (3d Cir. 1994),
we held that "where a police officer uses a police vehicle to terrorize a
civilian, and he has done so with malicious abuse of official power
shocking the conscience, a court may conclude that the officers have
crossed the constitutional line." 22 F.3d at 1308. In Fagan, a police
officer attempted to stop and issue a warning to the driver of a Camaro
when he saw a passenger standing up through the vehicle's open T-top
roof. When the driver refused to stop, the officer commenced a high-
speed pursuit through a residential neighborhood. The Camaro
eventually ran a red light at an intersection and broad-sided a pick-up
truck. The two occupants of the truck and one of the passengers in the
Camaro were killed; two other passengers in the Camaro suffered
crippling injuries. Because the officer's actions were reckless, but not

                               11
Id. at 1721.

By way of example, I do not think that under Lewis police
would be justified in firing shots directly at the driver of a
fleeing car after initiating pursuit for a minor traffic
violation, knowing that the fleeing car was about to reach
a dead-end or some barricade that would force the driver to
stop. I believe Lewis would allow a reasonable fact finder to
conclude, based on the circumstances, that the action of
the apprehending officers was intended to injure or
terrorize the driver, thus permitting a determination that
the driver's substantive due process rights had been
violated. Such an intent to harm may be understandable
given the dangers of law enforcement, but it also would be
intolerable and absolutely collateral to any legitimate law
enforcement objective.

II.

The majority states: "Lewis does not permit an inference
of intent to harm simply because a chase eventuates in
deliberate physical contact causing injury." Maj. Op. at 6.
I must respectfully disagree with the breadth of that
statement. I think the validity and the strength of any such
inference depends entirely upon the totality of
circumstances surrounding the contact, including the
severity of the contact. The Supreme Court was careful to
except from its holding cases where there was an intent to
harm, terrorize or kill. I believe that there may well be those
rare situations where the nature of an officer's"deliberate
physical contact" is such that a reasonable factfinder
would conclude the officer intended to harm, terrorize or
kill.
_________________________________________________________________

"arbitrary, intentional, [or] deliberate," we affirmed the trial court's
grant
of summary judgment in favor of the government. Although Fagan was
decided prior to the Supreme Court's decision in Lewis, we similarly held
that "where a person suffers injury as an incidental and unintended
consequence of official action, the abuse of power contemplated in the
due process and eighth amendment cases does not arise." Id. at 1307
(emphasis added).

                               12
There often is no way to establish subjective intent, other
than by the reasonable fact finder's common sense
evaluation of the circumstances. See Rock v. Zimmerman,
1991 WL 148490, *8 (3d Cir. (Pa.)) (inferring intent from
circumstances is "entirely appropriate and is often the only
means of proving criminal intent"). Lewis establishes as a
matter of law that the circumstances of the chase at issue
there were insufficient to establish the required intent. It
did not abrogate the rules of deductive reasoning and
common sense that juries use every day. Indeed, intent,
particularly in constitutional cases, often must be inferred
from circumstantial evidence. See, e.g., Village of Arlington
Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252,
265-68 (1977) (determination of discriminatory motive
requires inquiry into circumstantial evidence); Oregon v.
Kennedy, 456 U.S. 667, 675 (1982) (intent of prosecutor to
subvert the protections afforded by the Double Jeopardy
Clause may be inferred from objective facts and
circumstances); Parkway Garage, Inc. v. City of
Philadelphia, 5 F.3d 685, 693-98 (1993) (relying on
circumstantial evidence to find high level officials liable for
civil rights violations and recognizing that inS 1983 cases
circumstantial evidence "is often the best and most reliable
proof of the subjective motivations for the conduct of the
actors").

Moreover, although I agree that the alleged violation of
police regulations here does not advance the plaintiff 's
claim, see Maj. Op. at 5, I think that the violation of such
regulations will sometimes be relevant. For example, here,
plaintiff submitted evidence that the officers did not comply
with police department guidelines and regulations for
initiating and conducting high-speed pursuits. One of those
guidelines characterizes such conduct as use of "deadly
force" akin to firing a weapon and states that officers
should engage in such contact only "as a last resort to
prevent eminent death or serious injuries." I believe a jury
should be able to consider the alleged violations of
department regulations, along with evidence contradicting
the officers' account of what happened, to the extent they
are relevant to the officers' intent. Defendants here have
completely denied any police involvement in the accident
which resulted in Davis' injuries. The police claim that they

                               13
broke off the pursuit blocks before the accident because
their overhead lights had malfunctioned. However, there is
strong evidence to the contrary. There is evidence that,
although the overhead lights did have problems in the past,
they had been repaired 24 hours before the accident.
Moreover, departmental regulations require officers to
check their patrol cars for equipment problems before going
on patrol. The car that collided with Cook was used on the
very next shift, and there is no evidence that the patrol car
was taken for any repairs to its overhead lights following
the accident. Finally, eye-witness accounts directly
contradict the officers' denials of involvement. Richard Hall,
a disinterested bystander, submitted a sworn affidavit
stating that the police car did "bump" or "hit" the Acura,
possibly twice, before the Acura went out of control.
Dwayne Cook, the driver of the Acura, also testified that he
felt a "jerk," which was caused by the police car bumping
him. He further testified that the impact caused him to hit
his head on the steering wheel and pass out.

As noted previously, none of this is relevant here because
plaintiff alleges, at most, that the police acted recklessly.
However, I believe such violations and conflicts in
testimony would be relevant in an appropriate case as
probative of a defendant's intent.

III.

In conclusion, I concur in the judgment of the majority.
However, as I mentioned at the outset, I write separately
because I think there are subtle, and perhaps misleading,
nuances arising from the decision in Lewis which merit
further discussion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               14
