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. e du/thir dc ir c uit_1999/231Filed 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 S tates District Judge for the Northern District of California, sitt ing 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 th at the defendant police officers conducted a high-speed ch ase of a suspect in violation of regulations, ending when th eir vehicle rammed the pursued vehicle causing a multi- car collision which severely injured plaintiff, a pedes trian bystander. We hold that County of Sacramento v. Lew is, 118 S.Ct. 1708 (1998), is dispositive and that, in the

2absence of evidence from which a jury could infer a

purpose to cause harm unrelated to the legitimate o bject of the chase, the evidence does not satisfy the requis ite element of arbitrary conduct shocking the conscienc e. 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 neighborhoo d in Newark, New Jersey. Police officers in two patrol c ars observed the Acura stopped in a traffic lane at a s top sign for what the officers considered an unusually long time. Noting also damage to the car's rear end, the offic ers decided to investigate and one of the patrol cars m oved alongside the Acura to pull it over while the offic ers had the vehicle plate checked. At this point the Acura pull ed away, making a left-hand turn out of the intersection. On e of the police cars pulled ahead, coming close to hitting t he Acura. The Acura then sped away with the marked police car s in pursuit as close as one car length at speeds up to seventy miles an hour with their overhead lights on but wit hout sirens activated. Cook, knowing he was driving a st olen 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 wh eel and to pass out. The Acura spun out of control and coll ided with two other cars, one of which was propelled int o plaintiff, who was standing on the sidewalk, severe ly injuring him.

Plaintiff filed this action in the District Court a gainst the Township of Hillside, individual Hillside police of ficers, and
owners of the other cars involved in the collision alleging
violations of federal and state law. The District C ourt granted summary judgment for defendants on all of t he
federal claims and dismissed the state law claims w ithout prejudice under 28 U.S.C. S 1367(c) (1994). Plainti ff appeals the judgment for the individual officers on his 42 U.S.C. SS 19831 and 1985 (1994) claims and the dismissal o f his
state law claims.

___________________________________________________ ______________

1. The District Court interpreted plaintiff 'sS 198 3 claim as a
substantive due process claim. On appeal, plaintiff properly do es not take issue with

3DISCUSSION

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 26 5, 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 Off ice 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) t hat they used deadly force on the pursued vehicle. We consid er these purported distinctions seriatim.2

___________________________________________________ ______________

that interpretation. Even if the use of a police ca r to stop Cook's flight could be found to be a Fourth Amendment seizure, se e Brower v. County of Inyo, 489 U.S. 593, 599 (1989); Adams v. St. Luc ie County Sheriff's Dep't, 962 F.2d 1563, 1571 (11th Cir. 1992), the cl aim would be personal to Cook and could not be asserted by a bys tander such as plaintiff. See Rakas v. Illinois, 439 U.S. 128, 133 -34 (1978). Substantive due process analysis is therefore appropriate in th is case because plaintiff 's claim is not covered by the Fourth Ame ndment. 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 w as to a suspect while in this case it was to a bystander. In our pre-Lewi s decision in Fagan v. City of Vineland, 22 F.3d 1296 (3d Cir. 1994), we a pplied the shocks-theconscience standard to the S 1983 claims of bystand ers, without discussion. We agree with the Ninth Circuit's reaso ning in Onossian v. Block, 175 F.3d 1169, ____ (1999), that under Lewis "if a police officer is justified in giving chase, that justification in sulates the officer

from constitutional attack, irrespective of who might be harmed or killed as a consequence of the chase." See also Jones v. Sheril l, 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 moto rcycle

which the officers observed operating at high speed . See 118 S.Ct. at 1712. Neither boy had anything to do w ith the fight that had prompted the call that brought the o fficers to the scene. See id. In this case, the officers' susp icions were raised by Cook's unusually long stop at the interse ction and rear-end damage to the car. Nothing in Lewis su ggests that courts are free to second-guess a police offic er's decision to initiate pursuit of a suspect so long a s the officers were acting "in the service of a legitimat e governmental objective," id. at 1716, here, to appr ehend one fleeing the police officers' legitimate investi gation 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 de termining whether Fourteenth Amendment liability for a high-s peed chase may be imposed is whether the officer's condu ct can be found to shock the conscience, for which the evi dence must show intent to harm the suspect physically. Se e id.

(2) In Lewis, the court of appeals had reversed sum mary judgment for the defendant officer, finding a triab le issue of fact because he had "apparently disregarded the Sacramento County Sheriff's Department's General Or der on police pursuits." Id. at 1712. The Supreme Court reversed, holding that "high-speed chases with no i ntent to harm suspects physically or to worsen their legal p light do not give rise to liability under the Fourteenth Ame ndment," and that "[t]he fault claimed on [the officer's] pa rt . . . fails
to meet the shocks-the-conscience test." Id. at 172 0. Lewis thus squarely refutes plaintiff's contention that t he officers' violation of police department regulations, which m ight 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 pavem ent where the police car coming to a stop accidentally skidded into him causing his injury. Here, the chase ended when

5the pursuing police car bumped into the rear of Coo k's car,

causing him to lose control of the car, which led t o 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 t he drawing of an inference that the police acted with the intent to cause physical injury. We disagree. Lewis does n ot permit an inference of intent to harm simply becaus e a chase eventuates in deliberate physical contact cau sing injury. Rather, it is "conduct intended to injure i n some way unjustifiable by any government interest [that] is the sort of official action most likely to rise to the conscienceshocking level." Id. at 1718 (emphasis added). It i s not disputed that the ramming occurred in the course of the chase. That physical contact of some sort between t he pursued and pursuing vehicles might occur in the co urse of a high-speed chase, particularly at its conclusion, is foreseeable. It would undermine Lewis' premise to l imit 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 wit h lawless behavior--the flight from their investigati on--for which they were not to blame. They had done nothing to cause Cook's high-speed driving or his flouting of their lawenforcement authority. Cook's action was instantane ous and so, by necessity, was the officers' response. T heir intent was to do their job as law enforcement officers, no t to cause injury. If they acted recklessly or imprudently, th ere is no evidence that their actions "were tainted by an imp roper or malicious motive." Id. at 1721. Because their actio ns did not shock the conscience, they were entitled to sum mary judgment.

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

Plaintiff also alleges that two of the individual p olice
officers who chased Cook violated 42 U.S.C. S 1985 (1994) by filing false or misleading statements to investi gators about their conduct on the night of the accident in an attempt to hide their culpable conduct. The only pr ovision of S 1985 that could be relevant to plaintiff 's al legation is the second part of S 1985(2), which prohibits consp iracy to

6obstruct justice with the intent to deny equal prot ection of

the laws. Because plaintiff does not allege that th e officers colluded with the requisite " `racial, or .. . othe rwise classbased, invidiously discriminatory animus,' " see Ku sh v. Rutledge, 460 U.S. 719, 725 (1983) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)), the distric t 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 stat e law claims against the owners of the civilian cars invo lved in the accident pursuant to 28 U.S.C. S 1367(c). The d istrict
court had discretion to do so and we find no error.

CONCLUSION

The judgment is AFFIRMED.

7McKEE, Circuit Judge, concurring:

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

The mere fact that force may have been used while effectuating an arrest does not automatically estab lish 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 hi gh-speed chase, but because his allegations of a substantive due process violation are rooted in negligence and alle ge, at most, a reckless disregard of safety. That is clear ly insufficient under Lewis. However, I believe the ev idence here, taken in the light most favorable to the plai ntiff, could support allegations of an intentional ramming of th e Acura Cook was driving. Had Davis alleged such intentiona l conduct, I do not think his suit would be appropria te for summary judgment under Lewis.

I.

Paragraph 13 of the Complaint states: "plaintiff .

. . alleges that the police vehicle either struck the 1 993 Acura . . . or chased such vehicle at such a high rate of speed so as to cause the (stolen) vehicle to collide with ot her vehicles, setting off a chain reaction . . . ." Par agraph 14 alleges that the pursuing officers were: "grossly n egligent 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"eit her operated their vehicles in a negligent fashion, or permitted their vehicles to be operated in a negligent fashio n 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 agains t established police guidelines and was engaged in wi th

8wanton, wilful and reckless disregard for the safet y 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 require s more. There, the Supreme Court held that absent "an inten t to harm suspects physically or to worsen their legal p light" there could be no liability for a substantive due p rocess 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 "sho cks the conscience" and gives rise to liability under S 198 3 for injuries arising out of a high-speed chase. Id. at 1717 ("conduct intended to injure in some way unjustifia ble by any government interest is the sort of official act ion most likely to rise to the conscience-shocking level"). See also Maj. Op. at 6. Here, as in Lewis, the "complaint al leges a variety of culpable states of mind: negligently res ponsible . . . reckless, gross negligence and conscious disr egard for [the plaintiff 's] safety . . . and oppression frau d and malice. The subsequent summary judgment proceedings reveale d that the height of the fault actually claimed was c onscious disregard . . ." Id. at 1720. That is simply not su fficient.

In Lewis the Court was careful to note that the pur suing officers may have acted imprudently, even recklessl y, but that the evidence did not support a conclusion that they intended to "terrorize, cause harm, or kill" the de cedent. 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 caus ing his injury." Maj. Op. at 5 (emphasis added). The fatal injuries sustained by Lewis were clearly a tragic, unintende d result of the high-speed pursuit. There were no allegation s that the police deliberately ran the decedent over or ra mmed the motorcycle.

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

9plaintiff alleged (and a fact finder could reasonab ly

conclude) that the officers rammed Cook to "teach h im a lesson" or to "get even" for subjecting them to the dangers of such a chase, Lewis would not shield the officer s from liability even though they were ultimately effectua ting an arrest. However, the District Court held that under Lewis a plaintiff must also provide evidence of a purpose t o cause harm "independent of the process of stopping the su spect." Order at 9-10. I do not believe that is supported b y Lewis. If police officers decided to stop a fleeing suspec t by inflicting spinal cord injury in the hopes that the suspect would never walk again, the application of such for ce would not be truly "independent of the process of stoppin g the suspect." Nevertheless, their intent to harm, injur e or terrorize the suspect might well shock the conscien ce and subject them to liability under Lewis. Thus, I do n ot 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 la w enforcement objective of arresting the fleeing susp ect.

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 o therwise 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 i n Lewis, nor our decision here, creates a "high-speed-pursui t" exception to the fundamental obligation of law enfo rcement officials to respect "certain decencies of civilize d 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 C ollins v. Harker Heights, 503 U.S. 115, 126 (1992)). "[I]t wa s not the ultimate purpose of the government actors [in Rochi n] to harm the plaintiff, but they apparently acted with full

10appreciation of what the Court described as the bru tality of

their acts." Lewis, 118 S. Ct. at 1718 n.9.

Lewis merely establishes that the environment in wh ich law enforcement officers perform their duties infor ms the substantive due process analysis.

[W]hen unforeseen circumstances demand an of ficer's instant judgment, even precipitate recklessn ess fails to inch close enough to harmful purpose to spar k 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 wo rsen their legal plight do not give rise to liability un der the Fourteenth Amendment, redressible by an action unde r S 1983." Id. If there is "reasonable justification [for their actions] in the service of a legitimate governmenta l objective," they are not liable under Lewis even th ough they acted in a manner that was negligent or even reckle ss. Lewis, 118 S. Ct. at 1716. In Lewis the Court state d:

[W]hile prudence would have repressed [the o fficer's] reaction, the officer's instinct was to do h is job as a law enforcement officer, not to induce [the moto rcycle driver's] lawlessness, or to terrorize, caus e harm or kill. Prudence, that is, was subject to countervai ling
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 o f 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 th e driver of a Camaro when he saw a passenger standing up through the veh icle's open T-top roof. When the driver refused to stop, the officer commenced a highspeed pursuit through a residential neighborhood. T he Camaro eventually ran a red light at an intersection and b road-sided a pick-up truck. The two occupants of the truck and one of th e passengers in the Camaro were killed; two other passengers in the Cam aro suffered crippling injuries. Because the officer's actions w ere reckless, but not

11Id. 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 tr affic violation, knowing that the fleeing car was about t o reach
a dead-end or some barricade that would force the d river to stop. I believe Lewis would allow a reasonable fact finder to conclude, based on the circumstances, that the acti on of the apprehending officers was intended to injure or terrorize the driver, thus permitting a determinati on that the driver's substantive due process rights had bee n violated. Such an intent to harm may be understanda ble given the dangers of law enforcement, but it also w ould be intolerable and absolutely collateral to any legiti mate law enforcement objective.

II.

The majority states: "Lewis does not permit an infe rence of intent to harm simply because a chase eventuates in deliberate physical contact causing injury." Maj. O p. at 6. I must respectfully disagree with the breadth of th at statement. I think the validity and the strength of any such inference depends entirely upon the totality of circumstances surrounding the contact, including th e severity of the contact. The Supreme Court was care ful to except from its holding cases where there was an in tent to harm, terrorize or kill. I believe that there may w ell be those
rare situations where the nature of an officer's"de liberate physical contact" is such that a reasonable factfin der would conclude the officer intended to harm, terror ize or
kill.

___________________________________________________ ______________

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

12There often is no way to establish subjective inten t, other

than by the reasonable fact finder's common sense
evaluation of the circumstances. See Rock v. Zimmer man, 1991 WL 148490, *8 (3d Cir. (Pa.)) (inferring inten t from circumstances is "entirely appropriate and is often the only means of proving criminal intent"). Lewis establish es as a matter of law that the circumstances of the chase a t issue there were insufficient to establish the required i ntent. It did not abrogate the rules of deductive reasoning a nd common sense that juries use every day. Indeed, int ent, 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 moti ve requires inquiry into circumstantial evidence); Ore gon v. Kennedy, 456 U.S. 667, 675 (1982) (intent of prosec utor to subvert the protections afforded by the Double Jeop ardy 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 official s liable for civil rights violations and recognizing that inS 19 83 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 violati on of police regulations here does not advance the plaint iff 's claim, see Maj. Op. at 5, I think that the violatio n 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 f or initiating and conducting high-speed pursuits. One of those guidelines characterizes such conduct as use of "de adly force" akin to firing a weapon and states that offi cers should engage in such contact only "as a last resor t to prevent eminent death or serious injuries." I belie ve a jury should be able to consider the alleged violations o f department regulations, along with evidence contrad icting the officers' account of what happened, to the exte nt they
are relevant to the officers' intent. Defendants he re have completely denied any police involvement in the acc ident which resulted in Davis' injuries. The police claim that they

13broke off the pursuit blocks before the accident be cause

their overhead lights had malfunctioned. However, t here is strong evidence to the contrary. There is evidence that, although the overhead lights did have problems in t he past, they had been repaired 24 hours before the accident

. Moreover, departmental regulations require officers to check their patrol cars for equipment problems befo re 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 fo llowing the accident. Finally, eye-witness accounts directl y contradict the officers' denials of involvement. Ri chard Hall, a disinterested bystander, submitted a sworn affida vit stating that the police car did "bump" or "hit" the Acura, possibly twice, before the Acura went out of contro l. Dwayne Cook, the driver of the Acura, also testifie d that he felt a "jerk," which was caused by the police car b umping him. He further testified that the impact caused hi m 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 r ecklessly. 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 majo rity. However, as I mentioned at the outset, I write sepa rately because I think there are subtle, and perhaps misle ading, nuances arising from the decision in Lewis which me rit
further discussion.

A True Copy:

Teste:

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

14