                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 13 2012

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LORETTA A. JOHNSON, individually; et             No. 11-35054
al.,
                                                 D.C. No. 3:10-cv-00034-RRB
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

CITY OF UNALAKLEET and GEORGE
TURNER,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                       Argued and Submitted June 25, 2012
                               Anchorage, Alaska

Before: GOODWIN, W. FLETCHER, and M. SMITH, Circuit Judges.

       Dane Johnson became intoxicated and drove his four-wheeler down the

main street of the City of Unalakleet. While driving erratically and on the wrong

side of the road, he ran his four-wheeler over a ten-year-old girl. The collision



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
seriously injured her and knocked her unconscious. A few minutes later, Officer

Turner arrived at the scene, hand-cuffed Johnson with his hands in front, and

placed him in the back of his police car without first frisking him. Over the next

several minutes, Officer Turner tended to the unconscious victim, managed the

crowd that had gathered, called dispatch several times to request paramedics and a

state trooper, interviewed witnesses, and prevented the victim’s father from

retaliating against Johnson. Officer Turner also returned to the police car to tell

Johnson that the victim would probably be all right. Twelve minutes after Officer

Turner arrived at the scene, Johnson shot and killed himself with a handgun he had

concealed on his person.

      Johnson’s parents and estate (the Appellants) sued Officer Turner and the

City of Unalakleet (the City) under 42 U.S.C. § 1983. The Appellants argue that

Officer Turner violated Johnson’s due process rights by failing to protect Johnson

from self-inflicted harm while Johnson was in police custody, and they argue that

the City violated Johnson’s due process rights by failing to properly train or

supervise police officers in suicide prevention. The district court granted qualified

immunity to Officer Turner and the City, and the Appellants appealed. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.




                                          2
      To be cognizable as a violation of due process rights, a police officer’s

conduct must “shock the conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833,

846 (1998); Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). In a fast-paced

situation in which actual deliberation by the officer is not practical, “only a purpose

to cause harm unrelated to the legitimate object of arrest will satisfy the element of

arbitrary conduct shocking to the conscience, necessary for a due process

violation.” Lewis, 523 U.S. at 836.

      The undisputed facts in this case show that, in the twelve minutes between

Officer Turner’s arrival at the scene and Johnson’s suicide, actual deliberation by

Officer Turner was not practical. Officer Turner was too busy tending to the

medical needs of the victim, requesting resources, and managing the crowd to

seriously evaluate whether Johnson was in danger of self-inflicted harm.

Therefore, the Lewis “purpose to cause harm” standard applies.

      The Appellants have not provided any evidence that Officer Turner acted

with a purpose to harm Johnson. Accordingly, Officer Turner did not violate

Johnson’s right to due process, and qualified immunity was properly granted.

      Turning to the Appellants’ claim against the City, we note that “proper

analysis requires us to separate two different issues when a § 1983 claim is asserted

against a municipality: (1) whether plaintiff’s harm was caused by a constitutional


                                          3
violation, and (2) if so, whether the city is responsible for that violation.” Collins

v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992); accord Connick v.

Thompson, 131 S. Ct. 1350, 1358 (2011). We have already determined that

Johnson’s harm was not caused by a constitutional violation. Therefore, there is no

need to discuss the City’s responsibility for conduct that was not a constitutional

violation.

      The Appellants’ claim against the City relies on several tort-like theories

about the reasonableness of the City’s policies. The Supreme Court, however, has

“rejected claims that the Due Process Clause should be interpreted to impose

federal duties that are analogous to those traditionally imposed by state tort law.”

Collins, 503 U.S. at 128.

      Finally, the Appellants rely on Conn v. City of Reno, 591 F.3d 1081, 1103

(9th Cir. 2010), but the cited portions of that opinion were overruled by Connick,

131 S. Ct. 1350. See Conn v. City of Reno, 131 S. Ct. 1812 (2011) (vacating the

judgment in light of Connick); Conn, 658 F.3d 897 (9th Cir. 2011) (reinstating

only some portions of the opinion).

      AFFIRMED.




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