
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-2125                          MARIE EVANS, p.p.a. MURIEL EVANS,                                Plaintiff, Appellant,                                          v.                                TERRACE AVERY, ET AL.,                                Defendants, Appellees.                              _________________________          No. 95-2126                            MURIEL EVANS AND BILLY EVANS,                                Plaintiffs, Appellees,                                          v.                                   CITY OF BOSTON,                                Defendant, Appellant.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                   [Hon. Robert B. Collings, U.S. Magistrate Judge]                                             _____________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                          and Boyle,* Senior District Judge.                                      _____________________                              _________________________               Michael Avery,  with  whom Perkins,  Smith  & Cohen  was  on               _____________              ________________________          brief, for plaintiffs.               Kevin S. McDermott, Assistant Corporation Counsel, with whom               __________________          Merita  A.  Hopkins,  Corporation  Counsel,  was  on  brief,  for          ___________________          defendants.                              _________________________                                  November 20, 1996                              _________________________          _______________          *Of the District of Rhode Island, sitting by designation.                    SELYA,  Circuit Judge.    These appeals  require us  to                    SELYA,  Circuit Judge.                            _____________          revisit the legal standard  which courts must apply to  resolve a          claim  that a  police  pursuit has  been  conducted in  a  manner          antithetical  to  the  protections  afforded  by the  substantive          aspect of  the Due Process  Clause.   The question arises  in the          context of a civil action brought against the City  of Boston and          two of  its police  officers after  a motor vehicle  driven by  a          suspected  drug dealer fleeing from the police struck and injured          a  youthful pedestrian,  Marie Evans.   The  district court  took          Evans' civil rights claims  from the jury, and Evans  now appeals          both the court's  direction of a verdict  in favor of the  police          officers  and its earlier grant  of summary judgment  in favor of          the  City.  At the same time,  the City cross-appeals from a jury          verdict  in favor of Evans'  parents on a  related state-law tort          claim.  We affirm the judgment below in all respects.          I.  BACKGROUND          I.  BACKGROUND                    We assess  the  facts  of  record  in  the  light  most          favorable  to the plaintiffs.  See, e.g., Veranda Beach Club Ltd.                                         ___  ____  _______________________          Partnership  v. Western Sur. Co.,  936 F.2d 1364,  1375 (1st Cir.          ___________     ________________          1991) (elucidating  standard of  review  for directed  verdicts);          Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (same          _______    _______________          re  summary judgments).  No  further elaboration of  the facts is          needed for disposition of the cross-appeal.                    The events  that fomented this lawsuit  occurred in the          twinkling  of an eye.   At approximately 6:00  p.m. on August 12,          1992, officers  Terrace Avery  and John J.  Greene were  cruising                                          2          through a  residential neighborhood in the  Dorchester section of          Boston.  They spotted suspicious  activity at the intersection of          Nixon  and  Centre Streets:   an  individual  who appeared  to be          startled at their  presence yelled excitedly,  threw a paper  bag          through the open window of a parked Oldsmobile,  and vaulted into          the  front passenger seat.  The driver immediately headed west on          Centre St. at 20-25 m.p.h.  Greene decided to stop the automobile          and detain  its occupants.  He  executed a U-turn, set  out after          the  Oldsmobile,  and activated  his  siren  and wig-wag  lights.          Instead of stopping, the suspects' car accelerated.  The officers          took up the  chase in  earnest, travelling at  roughly 45  m.p.h.          When  the  officers  observed  the occupants  of  the  Oldsmobile          placing small items in  their mouths and passing  a jug back  and          forth, they concluded that the suspects were swallowing potential          evidence.                    As the Oldsmobile approached  Codman Square   a complex          intersection at  which Centre  St., Washington St.,  Norfolk St.,          and Talbot Ave. meet    it crossed to the wrong side of the road,          passed three  cars waiting  at a  red light,  and turned  left on          Washington St., travelling  as fast  as 50 m.p.h.   The  officers          remained  close  behind.    Approximately 300  feet  from  Codman          Square, the  suspects' vehicle struck a  ten-year-old girl, Marie          Evans, who was attempting to cross Washington St.  Greene stopped          his car and  Avery alighted  to assist the  victim.  Greene  then          continued his pursuit  of the  Oldsmobile.   The entire  incident          lasted no more than two minutes.                                          3                    The plaintiffs'  evidence shows that traffic  was heavy          at  the  time of  the chase  and  that numerous  pedestrians were          about.   Both Greene and  Avery were familiar  with Codman Square          and knew that it was a busy shopping venue adjacent  to a densely          populated residential  area.   They  also  knew that  Centre  St.          affords limited visibility of the Codman Square intersection.                    Marie Evans sued the  officers pursuant to 42  U.S.C.            1983 (1994); she sued the City  pursuant to the same statute; and          she and her parents, Muriel and Billy Evans, sued the  City under          Mass.  Gen. L. ch. 258,   2  (1988).1  The district court (Young,          U.S.D.J.) granted summary judgment in favor of the City on Evans'          section  1983 claim.  Ruling ore tenus, the court determined that                                       ___ _____                                        ____________________               1The statute provides in relevant part:                         Public  employers  shall  be liable  for                    injury or loss of property or personal injury                    or death caused by the negligent or  wrongful                    act or omission of  any public employee while                    acting  within  the scope  of  his office  or                    employment,  in  the same  manner and  to the                    same  extent  as a  private  individual under                    like   circumstances,   except  that   public                    employers  shall  not be  liable  .  . .  for                    punitive damages or for any amount in  excess                    of  one   hundred  thousand  dollars.     The                    remedies  provided by  this chapter  shall be                    exclusive   of  any  other  civil  action  or                    proceeding  by  reason  of the  same  subject                    matter  against the  public employer  or, the                    public  employee .  .  .  whose negligent  or                    wrongful act  or omission gave  rise to  such                    claim,  and no  such  public employee  . .  .                    shall  be liable  for any  injury or  loss of                    property or  personal injury or  death caused                    by his  negligent or wrongful act or omission                    while  acting within the  scope of his office                    or employment; . . . .          Mass. Gen. L. ch. 258,   2 (1988).                                          4          the plaintiff had failed to adduce evidence sufficient to prove a          policy or  custom of deliberate indifference  attributable to the          City.    The  parties  thereafter  consented  to  trial before  a          magistrate judge.  See 28 U.S.C.   636(c) (1994); Fed. R. Civ. P.                             ___          73(a).  At the  conclusion of the evidence, the  court (Collings,          U.S.M.J.) took the remaining section 1983 claim from the jury and          granted  the officers' motions for  judgment as a  matter of law.          See Evans v. Avery, 897  F. Supp. 21 (D.  Mass. 1995).  The  jury          ___ _____    _____          then considered the  pendent claims and awarded  damages to Evans          and  each of  her parents  in  the amount  of  $100,000 (the  per          claimant maximum  allowable under state  law, see supra  note 1).                                                        ___ _____          These appeals followed.          II.  THE SECTION 1983 CLAIM AGAINST THE OFFICERS          II.  THE SECTION 1983 CLAIM AGAINST THE OFFICERS                    Marie Evans asserts that the nisi prius  court erred in          directing  a verdict for the police officers.  She argues, in the          alternative, that the court applied the wrong legal standard, and          that, whatever legal standard obtains, the evidence established a          jury question  as to whether  the officers' conduct  violated her          right to substantive due process.                    Section 1983 supplies a private right of action against          a  person  who, under  color of  state  law, deprives  another of          rights secured by  the Constitution  or by federal  law.   Evans'          mishap involved  neither physical  contact with a  police officer          nor  police action  directed at  her.   In  short, it  was not  a          seizure  and it  was therefore  not in  derogation of  her Fourth          Amendment  rights.  See Brower  v. County of  Inyo, 489 U.S. 593,                              ___ ______     _______________                                          5          596-97  (1989) (distinguishing  between  police  action  directed          toward  producing  a particular  result  and  police action  that          happens  to  cause  an  unintended, if  foreseeable,  result  and          holding  that only the former  can constitute a seizure); Landol-                                                                    _______          Rivera v. Cruz Cosme, 906  F.2d 791, 796 (1st Cir. 1990)  ("It is          ______    __________          intervention directed at a specific individual that furnishes the          basis  for  a  Fourth  Amendment claim.").    Nevertheless,  even          outside the  context of  a seizure, appellate  courts have  noted          that  a person  injured  as a  result  of police  misconduct  may          prosecute  a substantive  due process  claim under  section 1983.          See, e.g., Sinaloa Lake Owners Ass'n v.  City of Simi Valley, 882          ___  ____  _________________________     ___________________          F.2d 1398, 1408 n.10 (9th Cir. 1989), cert. denied, 494 U.S. 1016                                                _____ ______          (1990);  see  also  Landol-Rivera,  906  F.2d  at  796  (assuming                   ___  ____  _____________          proposition).   The initial  question that confronts  us concerns          the  legal standard  by  which the  officers'  conduct should  be          judged in such instances.                    We begin  with an  historical perspective.   In Landol-                                                                    _______          Rivera  we ruled  that police  officers who  were engaged  in hot          ______          pursuit  of  a  suspect  could  not  be  held  liable  under  the          substantive  aspect of the Due Process Clause for the shooting of          a hostage.    906 F.2d  at 798.   We  premised that  ruling on  a          determination  that  the  officers'  conduct did  not  reflect  a          reckless  or callous indifference  to the hostage's  rights.  See                                                                        ___          id.  at  796-98.   Two  things  about  this  articulation of  the          ___          applicable legal standard  are noteworthy.   In the first  place,          our  use of the "deliberate indifference" test did not broach new                                          6          ground,   but,   rather,  reflected   a   fairly  straightforward          application  of our earlier holding in Germany v. Vance, 868 F.2d                                                 _______    _____          9 (1st Cir. 1989), in  which we posited that reckless or  callous          indifference to  an individual's rights is  a necessary predicate          to  triggering the  substantive  protections of  the Due  Process          Clause.   See id. at 17-19.2   In the second place, Landol-Rivera                    ___ ___                                   _____________          did  not  presume to  undertake a  full  formulation of  the test          applicable  to  substantive due  process  claims  in creation  of          danger cases;  instead, the court went only  as far as was needed          to show the infirmity of the particular claim before it.3                    After  this court  decided Landol-Rivera,  the Justices                                               _____________          revisited the jurisprudence of substantive due process in Collins                                                                    _______          v. City  of Harker Heights, 503  U.S. 115 (1992).   In that case,             _______________________          the  widow  of  an  asphyxiated  sanitation  department  employee                                        ____________________               2Our decision  in Germany  responded to the  Supreme Court's                                 _______          invitation in Daniels v.  Williams, 474 U.S. 327 (1986).   There,                        _______     ________          the Court held that mere negligence is insufficient  to implicate          the  substantive protections of  the Due Process  Clause but left          open  the question  of  whether something  less than  intentional          conduct might be enough to trigger those protections.  See id. at                                                                 ___ ___          334 n.3.               3In Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 582 (1st                   ___________________    _________          Cir.  1989), we  upheld a  section 1983  substantive due  process          claim  under  the "reckless  or  callous  indifference" standard.          There, four  armed plainclothes police officers  approached a car          occupied by a young couple admiring  the view at a secluded spot.          When the swain saw  the unidentified men, he started his  car and          began to drive away.   Without warning, the officers  opened fire          and severely injured him.   See id. at 557.  Because  the parties                                      ___ ___          in  Gutierrez-Rodriguez tried  the  case on  the assumption  that              ___________________          "reckless  and  callous  indifference"  constituted the  rule  of          decision for  section 1983 substantive  due process claims    and          argued in the same vein on appeal   we had no occasion to address          whether  anything beyond that standard might be required.  In all          events,  the  behavior  exhibited  by the  police  in  Gutierrez-                                                                 __________          Rodriguez would shock even an unusually jaded conscience.           _________                                          7          claimed that her deceased husband had "a constitutional right  to          be free from  unreasonable risks  of harm to  his body, mind  and          emotions  and a  constitutional  right to  be protected  from the          [city's] custom and policy  of deliberate indifference toward the          safety of  its employees."  Id.  at 117.  Noting  its traditional                                      ___          reluctance "to  expand the  concept of substantive  due process,"          id. at 125, the Court recharacterized the plaintiff's "deliberate          ___          indifference"  claim to  include an  additional element,  namely,          "that the city's `deliberate indifference' to Collins' safety was          arbitrary government action that . . . `shock[s] the  conscience'          of  federal  judges."   Id. at  126.   The Court  reiterated this                                  ___          standard when  it determined that  the city's alleged  failure to          train or warn its  employees was not actionable as  a substantive          due  process violation because  the city's conduct  could not "be          characterized  as   arbitrary,  or  conscience  shocking,   in  a          constitutional  sense."   Id.  at 128.    Rather, the  Court held                                    ___          petitioner's claim to be "analogous to a fairly typical state-law          tort claim,"  and noted that  it had "previously  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."  Id.                               ___                    Since Collins was  decided in 1992,  two of our  sister                          _______          circuits,  faced  with  the  need  to  construct a  template  for          substantive  due  process  claims  arising  out  of  the  state's          creation  of  danger,  have held  squarely  that  the "shock  the          conscience"  rubric furnishes  the appropriate  test.   The Third                                          8          Circuit,  sitting  en banc,  adopted  this standard  in  a police          pursuit case.  See Fagan v. City of Vineland, 22 F.3d 1296, 1306-                         ___ _____    ________________          07  (3d Cir. 1994)  (en banc) ("In  light of  the Supreme Court's          unanimous  adherence  to  the  `shocks the  conscience'  test  in          Collins, the reckless indifference  of government employees is an          _______          insufficient  basis upon  which to  ground their liability  for a          police pursuit under the  Due Process Clause.").  In  a different          factual  context, the  Tenth Circuit  relied  on Collins  for the                                                           _______          proposition  that   the  "shock  the  conscience"   test  governs          substantive due  process claims in all creation  of danger cases.          See Uhlrig v.  Harder, 64 F.3d 567,  571 (10th Cir. 1995),  cert.          ___ ______     ______                                       _____          denied  116 S.  Ct. 924  (1996).   Moreover,  at least  two other          ______          courts of  appeals, anticipating Collins, adopted  the "shock the                                           _______          conscience" standard in police pursuit  cases prior to 1992  (and          still adhere to it).  See Temkin v. Frederick County Comm'rs, 945                                ___ ______    ________________________          F.2d  716, 723  (4th  Cir. 1991),  cert.  denied, 502  U.S.  1095                                             _____  ______          (1992); Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986).  To be                  ______    ____          sure, the position taken by  these courts is not uncontroversial.          Judge Cowen wrote a vociferous dissent in Fagan, 22 F.3d at 1309,                                                    _____          and  the   Ninth  Circuit   recently  rejected  the   "shock  the          conscience"  test,  Collins  notwithstanding.     See  Lewis   v.                              _______                       ___  _____          Sacramento County, ___  F.3d ___,  ___ (9th Cir.  1996) [1996  WL          _________________          577835 at  *5] (holding that deliberate  indifference or reckless          disregard  "is the minimum required to sustain  a   1983 claim in          the context of a high-speed police pursuit").                    We  are persuaded that the majority view of the minimum                                          9          threshold in cases like  this is correct.4  Accordingly,  we hold          that  police  officers'  deliberate indifference  to  a  victim's          rights,  standing alone,  is  not a  sufficient  predicate for  a          substantive  due process claim in a police pursuit case.  Rather,          in such a  case, the plaintiff must also show  that the officers'          conduct shocks the conscience.  Though that benchmark is mandated          for  creation  of  danger  cases  under the  fairest  reading  of          Collins,  we add that  it is particularly  appropriate to measure          _______          police  pursuits  in that  way.   Police  chases  are not  only a          necessary concomitant of maintaining order in our modern society,          but  they are also inherently  hazardous.  By  their very nature,          they  inevitably  create  some  risk  of  injury  to  bystanders.          Officers must decide the balance between law enforcement and risk          to public  safety quickly and while  under considerable pressure.          In such circumstances, permitting the Due Process Clause to serve          as a surrogate  for state tort law would hamstring  the police in          their performance of vital duties.                    We   think,  moreover,  that   this  standard   is  not          inconsistent with, but is  merely a refinement of, Landol-Rivera.                                                             _____________          As  in Landol-Rivera, a plaintiff  is still required  to show the                 _____________          police  officers' deliberate  indifference  to his  rights.   The          plaintiff in Landol-Rivera could not clear this hurdle, so we had                       _____________                                        ____________________               4We refuse to follow Lewis because we believe that the panel                                    _____          paid insufficient attention both to Collins and to the legitimate                                              _______          demands of law enforcement when it  asserted, without engaging in          any analysis, that "deliberate indifference is always sufficient"          to  maintain  a  section  1983 substantive  due  process  action.          Lewis, ___ F.3d at ___ [1996 WL 577835 at *5].          _____                                          10          no  occasion to  explore whether any  further hurdle  blocked his          path.5  Today, we move forward and hold 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.                    Having clarified the applicable legal standard, we need          not tarry.   The evidence of record here, taken in the light most          salutary  to  Evans'  case,  does  not  satisfy  the  "shock  the          conscience"  test.  The chase  was brief in  duration, lasting no          more  than  two minutes.   It  covered about  half  a mile.   The          vehicles'  speeds never exceeded 50 m.p.h.  The officers had good          cause  to believe that the  suspects were trafficking in cocaine.          Though  Evans is  not  bereft of  talking  points    the  pursuit          occurred in a densely  populated residential area at a  time when                                        ____________________               5Even if, as Evans  urges, Landol-Rivera announced a broadly                                          _____________          applicable rule to the effect that deliberate indifference is the          be-all in creation of danger cases   a proposition that we do not          accept     Evans  would not  be  helped.    While under  ordinary          circumstances we  would be bound to follow  a predecessor panel's          lead,  see, e.g., Jusino  v. Zayas, 875  F.2d 986,  993 (1st Cir.                 ___  ____  ______     _____          1989)  (explaining   that  in   a   multi-panel  circuit,   newly          constituted panels customarily are bound by prior panel decisions          closely in  point), there is  a well-recognized exception  to the          rule for   situations  in which  a panel  opinion is  undercut by          controlling authority, subsequently announced.  See, e.g., Stella                                                          ___  ____  ______          v. Kelley,  63 F.3d 71,  74 (1st Cir.  1995) (refusing  to follow             ______          Unwin v.  Campbell, 863  F.2d 124 (1st  Cir. 1988),  in light  of          _____     ________          Johnson  v.  Jones, 115  S. Ct.  2151  (1995)); United  States v.          _______      _____                              ______________          Bucuvalas, 909 F.2d 593,  594 (1st Cir. 1990) (overruling  United          _________                                                  ______          States v.  Bosch Morales, 677 F.2d 1 (1st Cir. 1982), in light of          ______     _____________          United States v. Powell,  469 U.S. 57 (1984)).   If Landol-Rivera          _____________    ______                             _____________          were to be read in the manner urged by Evans, the Supreme Court's          subsequent decision  in Collins  would require us  to invoke  the                                  _______          exception here.                                          11          people  would likely be ambling  about, and the  officers did not          seriously consider  alternatives to  hot pursuit    these points,          taken  most favorably to  Evans, add up to  no more than possible          negligence.  Considering the totality of the circumstances, we do          not believe  that  either the  officers' decision  to pursue  the          apparent  perpetrators  of a  serious  offense  or their  actions          during  the chase  were so raw  as to  shock the  conscience of a          reasonable factfinder.                    A  comparison of  the facts  of this  case to  those of          other police pursuit  cases in which  the officers' behavior  has          been held not  to shock the conscience  fortifies our conclusion.          For example, Fagan involved a lengthy pursuit at speeds up to  80                       _____          m.p.h.  through a plethora of red lights.   See Fagan, 22 F.3d at                                                      ___ _____          1299-1300.  Similarly, Temkin, 945 F.2d at 718, involved a police                                 ______          officer who pursued an individual suspected of stealing $17 worth          of gasoline  at speeds  up to  105 m.p.h.  on a  narrow, two-lane          highway, with the  result that  both the police  cruiser and  the          pursued vehicle  struck the plaintiff.   The Fourth  Circuit held          that  the officer's  conduct,  "while disturbing  and lacking  in          judgment,"  did  not   transgress  the  "shock   the  conscience"          standard.   Id. at  723.   The actions of  the officers  in those                      ___          cases  were far more egregious than the actions of officers Avery          and  Greene.   Although the  "shock the  conscience" test  is not          mathematically precise, the imprecision occurs at the edges   and          this case, fairly viewed, does not present a close call.                    To  sum up, "shock the conscience" is the standard that                                          12          guides our decision, and the conduct of officers Avery and Greene          when measured  against that benchmark is  manifestly insufficient          to  support a substantive due process claim.  We therefore reject          Marie Evans' principal assignment of error.          III.  THE SECTION 1983 CLAIM AGAINST THE CITY          III.  THE SECTION 1983 CLAIM AGAINST THE CITY                    Evans  next argues  that  the district  court erred  in          granting summary judgment on  her section 1983 claim  against the          City of Boston.   She asserts that the City  exhibited deliberate          indifference  to individual  rights both  through its  failure to          monitor  police pursuits  and  through its  failure to  supervise          police officers involved  in such  pursuits.  We  need not  probe          Evans'  charge that the City's policies  were inadequate in these          respects.  As we  explain below, the fact  that Avery and  Greene          did not violate Evans' constitutional rights means  that the City          is not liable to her under section 1983.                    This  result  is  compelled   by  the  Supreme  Court's          decision in  City of Los  Angeles v. Heller, 475  U.S. 796 (1986)                       ____________________    ______          (per curiam).   In that case, the plaintiff sued a police officer          for making an  arrest with excessive  force and without  probable          cause;  he  also sued  the officer's  employer,  the City  of Los          Angeles, for  promulgating a constitutionally deficient policy in          regard to police officers' use of force.  The jury  found for the          officer but against the municipality.  The district court entered          judgment for the  gendarme but  overrode the second  part of  the          jury's verdict and  dismissed the  claim against the  city.   The          court  of appeals  reversed the  order of  dismissal but  did not                                          13          disturb  the  judgment that  had  been entered  in  the officer's          favor.   See  Heller v.  Bushey, 759  F.2d 1371,  1376  (9th Cir.                   ___  ______     ______          1985).  The city then appealed.  The Supreme Court reinstated the          dismissal, declaring that it had never                    authorize[d]  the award of  damages against a                    municipal corporation based on the actions of                    one of its officers when in fact the jury has                    concluded  that  the  officer   inflicted  no                    constitutional  harm.     If  a  person   has                    suffered  no  constitutional  injury  at  the                    hands  of the individual  police officer, the                    fact that the departmental  regulations might                    have authorized the  use of  constitutionally                         __________                    excessive force is quite beside the point.          Heller, 475 U.S. at 799 (emphasis in original).          ______                    While Heller  provides a durable basis  for determining                          ______          that  a municipality cannot be  liable under section  1983 for an          inadequate public  safety policy in  a situation where,  as here,          the  officers whose  actions actually caused  the harm  have been          exonerated at trial,  we note that a  panel of the  Third Circuit          found Heller inapplicable in a case much like this one.  In Fagan                ______                                                _____          v. City of Vineland, 22 F.3d 1283 (3d Cir. 1994) (panel opinion),             ________________          the  court stated that "in a substantive due process case arising          out of  a police pursuit,  an underlying constitutional  tort can          still exist even  if no  individual police  officer violated  the          Constitution."  Id. at 1292.6   The court reasoned that the claim                          ___          against the officers and the  claim against the municipality were          based on two different theories:  the officers would be liable if          their conduct "shocked  the conscience," while the  city would be                                        ____________________               6When the Third Circuit  subsequently reheard Fagan en banc,                                                             _____          22 F.3d 1296, it did not review this aspect of the panel opinion.                                          14          liable if its policymakers,  acting with deliberate indifference,          implemented a policy  that encouraged the officers  to conduct an          unsafe  pursuit.  Id.   Evans invites us  to adopt this analysis.                            ___          We decline the invitation because we believe that the Fagan panel                                                                _____          improperly applied the Supreme Court's teachings.                    In Collins, the Court emphasized 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  violation,  and  (2)  if  so,                    whether  the  city  is  responsible  for that                    violation.          Collins,  503 U.S.  at  120.    The  Fagan  panel  described  the          _______                              _____          "deliberate  indifference" test  as  a "different  theor[y]"  for          municipal  liability,  22  F.3d  at  1292,  but  the  "deliberate          indifference"  test is not an independent theory at all.  Rather,          deliberate indifference  is merely an articulation  of the second          prong of the  Collins framework, adapted  to "policy and  custom"                        _______          cases.   In treating it  as a  separate theory,  the Fagan  panel                                                               _____          ignored the first segment of the framework:  the requirement that          the  plaintiff's harm  be caused  by a  constitutional violation.          See  Thompson v.  Boggs, 33 F.3d  847, 859  n.11 (7th  Cir. 1994)          ___  ________     _____          (rejecting the holding of the Fagan panel opinion), cert. denied,                                        _____                 _____ ______          115  S. Ct. 1692 (1995); see also  Mark v. Borough of Hatboro, 51                                   ___ ____  ____    __________________          F.3d  1137,  1153  n.13   (3d  Cir.)  (questioning  the  analysis          contained in the Fagan  panel opinion), cert. denied, 116  S. Ct.                           _____                  _____ ______          165 (1995).  Consequently, we follow Heller's clear rule and hold                                               ______          that the  City  cannot be  held  liable absent  a  constitutional                                          15          violation  by its officers.   See de  Feliciano v. de  Jesus, 873                                        ___ _____________    _________          F.2d 447, 449 (1st Cir.), cert. denied, 493 U.S. 850 (1989).                                    _____ ______          IV.  THE CROSS-APPEAL          IV.  THE CROSS-APPEAL                    The City of Boston appeals the jury's verdicts for loss          of  consortium in favor of  Muriel and Billy  Evans (Marie Evans'          parents).  It advances a single isthmian ground in support of its          cross-appeal, arguing that the trial court erred in formulating a          jury instruction.                    We  frame the  assignment of  error.   Over the  City's          objection,  the lower  court instructed the  jury that  state law          limited  the damages  that  could be  awarded  on each  claim  to          $100,000.    See  supra  note  1.    The  City  argues  that this                       ___  _____          instruction was  unfairly prejudicial inasmuch as  it "caused the          jury  to decide the  amount of damages  on emotion."   The City's          premise is that, once the jury  knew of the cap, it realized that          it  could  not fully  compensate  Marie Evans  for  her extremely          severe  injuries    and   therefore  decided  to  circumvent  the          statutory impediment by remunerating Marie's family as generously          as possible.7                    This   asseveration   lacks   merit.      Neither   the          Massachusetts statute  nor the cases discussing  it prohibit such          an  instruction, and the City cites no case from any jurisdiction          which holds that in  such circumstances a trial court  abuses its                                        ____________________               7Marie Evans presented testimony indicating that her damages          may  have totalled as much  as $2,000,000.   The jury, apparently          heedful of the magistrate's instructions concerning the statutory          cap,  awarded her  $100,000.   The  City  has not  appealed  that          verdict.                                          16          discretion  by informing a jury  of a statutory  cap on damages.8          To  the contrary, the cases upon which  the City relies stand for          nothing more than  the proposition  that a trial  court does  not          abuse its  discretion in refusing  to inform the  jury of such  a          limit.   See, e.g.,   Thompson  v. Sanford,  663 S.W.2d  932, 935                   ___  ____    ________     _______          (Ark.  1984); State  v. Bouras,  423 N.E.2d  741, 744  (Ind. App.                        _____     ______          1981).                    The wisdom  of telling  a jury about  such a  statutory          limitation is  debatable, and we  do not recommend  the practice.          Still,  we customarily  cede wide discretion  to trial  courts to          fashion jury instructions as  they see fit, see United  States v.                                                      ___ ______________          Houlihan,  92  F.3d  1271,  1299  n.31  (1st  Cir. 1966);  Putnam          ________                                                   ______          Resources  v. Pateman, 958 F.2d 448, 462  (1st Cir. 1992), and we          _________     _______          see no reason to second-guess the court in this instance.                    This conclusion is reinforced by other incidents of the          case at hand.  For one thing, the awards to the parents are amply          supported by  evidence in the  record   and  almost none  of this          evidence  has  been  contradicted.    For  another  thing,  after          properly  instructing  the  jurors  on loss  of  consortium,  the          magistrate  told them  that "[t]he  claims for  Muriel and  Billy          Evans for loss of consortium are  separate claims and each is  to          be judged separately."  Jurors are presumed to follow the court's                                        ____________________               8This  is not a case like Sasaki  v. Class, 92 F.3d 232 (4th                                         ______     _____          Cir. 1996), in which the trial court, though forbidden by statute          from  informing the jury of a cap on damages, nonetheless allowed          counsel to do so.  See id.  at 235-37 (remanding for a new  trial                             ___ ___          due  to  a violation  of  42 U.S.C.     1981a(c)(2)).   Here, the          Massachusetts  legislature wrote a statute that is silent on this          point, and we decline to speak for it.                                          17          instructions,  see Houlihan,  92 F.3d at  1287; United  States v.                         ___ ________                     ______________          Rivera-Gomez, 67 F.3d 993,  999 (1st Cir. 1995), and the City has          ____________          not   offered  sufficient   justification  for   overcoming  this          presumption.  In  the last  analysis, the City's  claim that  the          mere mention of the statutory cap inspired the jury to ignore the          charge  and   instead  do   rough  remedial  justice   is  wholly          speculative.          V.  CONCLUSION          V.  CONCLUSION                    We need go  no further.   In a police pursuit  case not          involving a seizure, the officers may be held liable on the basis          of  substantive due process only if their actions (whether or not          reckless or deliberately indifferent  to public safety) shock the          conscience.   Here, Marie Evans'  injuries are not  the result of          conscience-shocking  conduct on  the  part of  officers Avery  or          Greene.  Section 1983  therefore provides no remedy against  them          (or against the City of Boston, for that matter).9                    No error appearing, the judgment below will be          Affirmed.  All parties shall bear their own costs.          Affirmed.  All parties shall bear their own costs.          ________   ______________________________________                                        ____________________               9We emphasize that we are asked  to determine as a matter of          federal  law only whether Marie  Evans has a constitutional right          to recover damages under  the Due Process Clause.   The questions          of whether  or to what extent she may maintain a suit under state          tort law must  be answered according  to that body  of law.   The          Commonwealth  of  Massachusetts  has  chosen to  provide  only  a          limited tort remedy,  and, though  that choice has  a very  harsh          result  here,  we must  recognize the  state's suzerainty  in its          legitimate province.   It is not the  function of a federal court          to  force state tort law into unfamiliar contours under the guise          of constitutional interpretation.                                          18
