Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

Nos. 06-1720, 06-2228

YVETTE LOCKHART-BEMBERY,

Plaintiff, Appellant/Cross-Appellee,

v.

DANIEL SAURO,

Defendant, Appellee/Cross-Appellant,

TOWN OF WAYLAND POLICE DEPARTMENT; ROBERT IRVING, in his capacity

as Chief of the Wayland Police Department,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

 Torruella, Newman, and Lynch, *

Circuit Judges.

Andrew M. Fischer, with whom Jason & Fischer was on brief,

for Yvette Lockhart-Bembery.

Leonard H. Kesten, with whom Jeremy Silverfine, Dierdre

Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP, were on

brief, for Daniel Sauro.
August 9, 2007
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LYNCH, Circuit Judge. Routine police assistance to a

disabled motorist whose car posed a traffic hazard on a busy road

was transmogrified into a civil rights action under 42 U.S.C.

§ 1983. The plaintiff alleged, inter alia, that the officer

violated her Fourth Amendment rights when he instructed her to move

her car or it would be towed, she did so, and she was injured. She

also alleged a violation of her Fourteenth Amendment substantive

due process rights on a state-created danger theory. A jury found

an undefined violation of the plaintiff's civil rights. It

attempted to award damages of $0, however, and when told by the

judge that such an award was inconsistent with a finding of

liability, awarded only $1. Because the jury awarded $1, the court

awarded plaintiff attorney's fees. On the basis that plaintiff had

prevailed on only one of her five claims, the court reduced the

requested amount by approximately 73%, to $12,946.

Each side has appealed various rulings. We cut to the

chase. It is clear on this record that plaintiff, even on her best

evidence, does not state a viable § 1983 claim on either a Fourth

Amendment or a substantive due process theory. No properly

instructed jury could have found a violation of constitutional

rights on the evidence. The trial court thus erred in not granting

defendant Daniel Sauro's post-trial Rule 50(b) motion. We vacate

the judgment against Sauro and the award of attorney's fees to

plaintiff, and direct entry of judgment for defendant.
Two other witnesses disputed this. Officer Sauro 1

testified that more than half of the width of Lockhart-Bembery's

car was blocking the road. A second witness, a passing motorist,

testified that it was impossible to pull completely out of traffic

and that three-fourths of the car was jutting into the road.

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I.

Because our resolution of the case turns on our review of

the district court's denial of Sauro's Rule 50(b) motion, we recite

the facts in the light most favorable to Lockhart-Bembery. Webber

v. Int'l Paper Co., 417 F.3d 229, 233 (1st Cir. 2005).

The facts are these. Before 8:30 a.m. on February 6,

2002, Lockhart-Bembery left her home in Framingham to go to

Waltham. Snow was on the ground, although the roads themselves

were clear, and the day was cold. Lockhart-Bembery was driving a

1988 Cadillac Seville -- a relatively large car. Traveling

eastbound along Route 30, Lockhart-Bembery noticed that her car had

lost power, so she coasted along until she found a place to stop at

the side of the road. There was an upward incline in the road at

the place where Lockhart-Bembery stopped. Lockhart-Bembery

testified that "[t]o the best of [her] recollection," she was

generally successful in getting all of her car out of the eastbound

travel lane.1

The place where Lockhart-Bembery stopped was in Natick,

mere feet past the border with the neighboring town of Wayland. A

curve in Route 30 as it approaches this location from the west

limits visibility.
Lockhart-Bembery later told the motorist that she had 2

been checking fuses to see if she could find the source of the

problem.

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After bringing her car to a stop, Lockhart-Bembery

concluded that it was not safe for her to remain in her car because

she could be hit by an eastbound car. Using a passing driver's

telephone, Lockhart-Bembery called AAA for assistance. AAA said

that they would arrive shortly, and that her call had "priority"

because of the location where she had broken down. Shortly

thereafter, another passing motorist observed Lockhart-Bembery's

car and thought that Lockhart-Bembery was slumped over the steering

wheel of her car. The motorist called the police to report as 2

much.

Sauro, a Wayland police officer, responded within five or

ten minutes. Lockhart-Bembery told Sauro that she had called AAA

for a tow, and that they had put a priority on her request.

Lockhart-Bembery testified that Sauro then walked around

the car and told her to "move the car or it [would] be towed." She

responded that she was unable to move the car because it had no

power. According to Lockhart-Bembery, Sauro's response was: "No,

it doesn't have any power, but just put it in neutral and push it

back[,] steering with the steering wheel."

Lockhart-Bembery got into the car to shift it into

neutral, then got back out of the car and turned the steering wheel

as much as she could. Facing the rear of the vehicle, she then
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pushed the car, with the driver's door open, by the frame between

the front and rear doors. While doing so, she kept one hand on the

steering wheel to try to direct the car. The car rolled slowly

back and partway into a driveway with a downward slope. It then

came to rest on its own.

Lockhart-Bembery testified that Sauro, who was then using

the radio in his car some distance down the road, yelled at her,

"That's not where I told you to put it." Lockhart-Bembery asked

Sauro where she should put the car, and he responded only with a

vague gesture while he continued to talk on the radio. LockhartBembery understood the gesture to mean that she should move her car

closer to Sauro's, so she once again began pushing the car.

Lockhart-Bembery testified that she was "inside the car" while she

pushed it, although she also stated that she was walking with the

car when it started to roll. Sauro testified that she was pushing

the car from the front bumper area. In any event, this time, the

car picked up speed as it rolled backwards down the incline of the

driveway. The car dragged Lockhart-Bembery, face-first and facedown, down the hill with it until it collided with some trees and

stopped.

Lockhart-Bembery was taken by Medevac helicopter to the

hospital. She was later told that she had broken several bones,

including at least one rib and her shoulder blade. Lockhart-
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Bembery was kept in the hospital overnight for observation because

of a risk of head trauma. She was discharged the next morning.

In December 2003, Lockhart-Bembery filed suit against the

Wayland Police Department, its Chief, Robert Irving, and Officer

Sauro in Massachusetts Superior Court. The suit alleged a § 1983

claim, various state law theories of tort liability, and a

violation of Mass. Gen. Laws ch. 12, § 11I, the state civil rights

statute. The § 1983 claim was based on multiple theories,

including a theory that Sauro had unconstitutionally seized

Lockhart-Bembery in violation of her Fourth Amendment rights, and

a state-created danger theory that Sauro had violated her

Fourteenth Amendment substantive due process rights. The

defendants removed the case to federal district court. See 28

U.S.C. § 1441. The defendants eventually moved for summary

judgment.

In opposing summary judgment on her § 1983 claim,

Lockhart-Bembery affirmatively disclaimed any argument that Officer

Sauro had violated her Fourth Amendment rights. She claimed only

that there was a triable issue on her state-created danger due

process claim. Nonetheless, the Fourth Amendment theory somehow

was submitted to the jury.
The district court granted summary judgment on the 3

remainder of Lockhart-Bembery's state law claims, including the

only two claims, for negligent supervision, alleged against the

Police Department and the Chief of Police. The Town of Wayland

remained a defendant in the case, presumably under the theory that

it would indemnify Sauro should he be found liable for damages.

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The district court denied summary judgment on the

negligence, state civil rights act, and § 1983 claims. The court 3

further denied qualified immunity to Sauro on the § 1983 claim.

The case was tried before a jury. As to LockhartBembery's Fourth Amendment theory, the court instructed the jurors:

The Fourth Amendment of the United States

Constitution provides [that] "the right [of]

the people to be secure in their persons,

houses, papers[,] and effects against

unreasonable searches and seizures shall not

be violated." To prove . . . her Section 1983

claim, the plaintiff must prove . . . that Mr.

Sauro violated her right to be secure in her

person by ordering her to push her car in the

circumstances that existed on February 6,

2002.

As to Lockhart-Bembery's Fourteenth Amendment due process theory,

the court's instructions offered the jurors what appeared to be two

separate theories of liability:

[T]he Fourteenth Amendment of the United

States Constitution [protects] the right to be

free from and to obtain judicial relief for

unjustified intrusions on personal security.

If you find that the Defendant Mr. Sauro

ordered the plaintiff to push her car farther

off the road and that he did so in violation

of her right to be secure in her person, then

you may find that the defendant deprived the

plaintiff of her Fourteenth Amendment right to

due process of law.
Lockhart-Bembery's counsel also referred to his client's 4

race in closing argument, saying, "[Defendant's counsel] says,

well, why would he [Sauro] do that. Well, maybe because she's

black. Maybe because she's wearing a veil." There was, however,

no discrimination claim made in this case.

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[Additionally], the plaintiff . . .

claims that Mr. Sauro's action constituted a

state-created danger which caused harm to

her. . . . A citizen has a constitutional

right to be protected from such harm. A

state-created danger occurs when an officer,

through an affirmative action, increases the

threat of harm to an individual. If you find

that . . . Mr. Sauro, while acting in his

capacity as a Wayland police officer, took an

affirmative action that placed the plaintiff

in a worse position of danger than if he had

not acted at all, then you may find that Mr.

Sauro's actions constituted a state-created

danger.

Following the charge, Sauro's attorney objected to the instructions

that if the jury found that Sauro had ordered Lockhart-Bembery to

move her car, they could find a violation. The court overruled the

objection.

The verdict form did not distinguish between plaintiff's

Fourth Amendment and due process theories on her § 1983 claim. It

merely asked whether the plaintiff's civil rights had been

violated. The jury answered "yes" to that question, although it 4

also concluded that plaintiff had not made out her state law civil
The court had correctly instructed the jury that it could 5

not find a state law civil rights violation unless the interference

with Lockhart-Bembery's civil rights was the result of "threats,

intimidation[,] or coercion." The jury concluded that Sauro had

violated Lockhart-Bembery's federal constitutional rights, but that

this violation did not involve threats, intimidation, or coercion.

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rights claim. The jury rejected Lockhart-Bembery's state law 5

negligence claim.

As an initial matter, the jury awarded zero dollars in

damages. The district court informed the jury that a zero damages

award was not consistent with a finding of liability on the § 1983

claim. Fifteen minutes later, the jury returned with a nominal

damages award of $1.

Each side filed a post-trial motion. Sauro filed a Rule

50(b) motion arguing, inter alia, that he was entitled to judgment

as a matter of law on the § 1983 claim. The district court denied

the motion. The court reasoned that there was sufficient evidence

of a Fourth Amendment seizure, as a reasonable person in LockhartBembery's situation would not have felt free to leave her encounter

with Sauro or to disobey his "order" to move the car. The court

stated that even if Sauro's actions fell within the community

caretaking doctrine of the Fourth Amendment, they were not

necessarily reasonable. The court stated that the question of

whether Sauro's actions were reasonable was one for the jury; the

implication was that the evidence was sufficient to support a

finding that Sauro had not acted reasonably. The court also held
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that the evidence was sufficient to show a due process violation

pursuant to the state-created danger theory. This was so because

Sauro's actions "could have been found to create or increase the

danger to plaintiff." Finally, the court rejected Sauro's claim

that he was entitled to qualified immunity.

The court also rejected the parties' arguments that a new

trial was needed on § 1983 liability (as Sauro had argued) or

damages (as Lockhart-Bembery had argued). Additionally, the court

disagreed with Lockhart-Bembery's claim that the verdict on the

negligence claim was inconsistent with the verdict on the § 1983

claim. The court did award plaintiff about 27% of the attorneys'

fees that she had requested. Both sides appealed.

II.

We review the denial of Sauro's Rule 50(b) motion de

novo, viewing the evidence in the light most favorable to LockhartBembery. Webber, 417 F.3d at 233. Because Lockhart-Bembery's

claim was brought under § 1983, the verdict for her may stand only

if there was evidence that Sauro violated her constitutional

rights. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) ("It is

for violations of . . . constitutional and statutory rights that 42

U.S.C. § 1983 authorizes redress; that section is not itself a

source of substantive rights, but a method for vindicating federal

rights elsewhere conferred by those parts of the United States

Constitution and federal statutes that it describes."); see also
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Wilson v. City of Boston, 421 F.3d 45, 53-54 (1st Cir. 2005)

(considering first, in a case with a similar procedural posture,

whether there was a constitutional violation). There was no such

evidence.

A. The Fourth Amendment Claim

We begin with Lockhart-Bembery's Fourth Amendment theory.

Lockhart-Bembery affirmatively abandoned her Fourth Amendment

theory in the course of opposing summary judgment, and that should

have disposed of the claim. Since the jury was nonetheless asked

to address it, however, we reach the issue.

The district court erred as a matter of law in denying

Sauro's Rule 50 motion on the Fourth Amendment theory of liability.

Our analysis of Lockhart-Bembery's Fourth Amendment claim is

governed by the community caretaking doctrine set forth in Cady v.

Dombrowski, 413 U.S. 433 (1973). In Cady, the Supreme Court

recognized that warrantless searches and seizures of a car can be

permissible under the Fourth Amendment when they stem from

"community caretaking functions, totally divorced from the

detection, investigation, or acquisition of evidence relating to

the violation of a criminal statute." Id. at 441. As this court

has said, the "community caretaking" label "is a catchall for [a]

wide range of [police] responsibilities," and it squarely includes

"[d]ealing with vehicle-related problems." United States v.

Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir. 1991). 
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The question, then, is not, as the district court stated,

whether there was a seizure. The district court apparently focused

on Lockhart-Bembery's state of mind in determining that there had

been a seizure. This focus apparently was based on language from

United States v. Mendenhall, 446 U.S. 544 (1980), stating that a

person has been "seized" if "a reasonable person would have

believed that he was not free to leave." Id. at 554. But under

the community caretaking doctrine, police action can be

constitutional notwithstanding the fact that it constitutes a

seizure. See Rodriguez-Morales, 929 F.3d at 785.

The imperatives of the Fourth Amendment are satisfied in

connection with the performance of non-investigatory duties,

including community caretaking tasks, so long as the procedure

involved and its implementation are reasonable. Id. The community

caretaking doctrine gives officers a great deal of flexibility in

how they carry out their community caretaking function. See id.

The ultimate inquiry is whether, under the circumstances, the

officer acted "within the realm of reason." Id. at 786; see also

United States v. Coccia, 446 F.3d 233, 239 (1st Cir. 2006)

("[I]mpoundments of vehicles for community caretaking purposes are

consonant with the Fourth Amendment so long as the impound decision

was reasonable under the circumstances."). Reasonableness does not

depend on any particular factor; the court must take into account

the various facts of the case at hand. See Coccia, 446 F.3d at
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239-40. No reasonable finder of fact could have found that Sauro's

actions were not within the realm of reason.

Lockhart-Bembery argues that Sauro acted unreasonably

when, knowing that the activity was potentially dangerous, he

"ordered" her to push her car. The "order" that Lockhart-Bembery

refers to is Sauro's statement that if she did not move her car, it

would be towed, his subsequent explanation to her of how she could

move the car when it lacked power, and his vague hand gesture

indicating to where she should move the car. She testified that

she believed that the car, if not moved, would be "towed by the

police. Consequently, it could be impounded or it could be taken

to a garage that [she] had no way of knowing where it would be."

That plaintiff did not want to suffer the inconvenience of having

her car towed was understandable. Even if the officer's actions

were viewed as an order that she take steps to move her car into a

position in which it would pose less of a risk to others, however,

this was not a seizure. See Terry v. Ohio, 392 U.S. 1, 19 n.16

(1968) ("Obviously, not all personal intercourse between policemen

and citizens involves 'seizures' of persons. Only when the

officer, by means of physical force or show of authority, has in

some way restrained the liberty of a citizen may we conclude that

a 'seizure' has occurred."); United States v. Smith, 423 F.3d 25,

28 (1st Cir. 2005) ("In order to find a seizure, . . . we must be
Although not necessary to our holding, it is also true 6

that there was not even a hint that Sauro's true motive was to look

for evidence of a crime. See Rodriguez-Morales, 929 F.2d at 787

("As long as impoundment pursuant to the community-caretaking

function is not a mere subterfuge for investigation, the

coexistence of investigatory and caretaking motives will not

invalidate the seizure."); cf. Colorado v. Bertine, 479 U.S. 367,

372-73 (1987) (finding an inventory search to be reasonable, and

hence constitutional, in part because there was no showing that the

police had "acted in bad faith or for the sole purpose of

investigation"). 

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able to conclude that coercion, not voluntary compliance, most

accurately describes the encounter.").

Even if it were a seizure, it was plainly not

unreasonable. Police are entitled to remove disabled vehicles from

the streets in order to protect public safety and ensure the smooth

flow of traffic. See South Dakota v. Opperman, 428 U.S. 364, 369

(1976); Coccia, 446 F.3d at 238; Rodriguez-Morales, 929 F.2d at

785-86. Here, the evidence compelled a finding that there was a

legitimate safety concern. Lockhart-Bembery conceded that her car

was extremely close to the eastbound travel lane and posed a safety

hazard. See Rodriguez-Morales, 929 F.2d at 785 (recognizing that 6

safety concerns are implicated when a car is on the shoulder of a

highway). That concern was heightened here because the car was

located at a curve in the road, and so visibility was reduced for

approaching vehicles. Lockhart-Bembery herself testified that she

stepped out of her car because she feared it would be unsafe for

her to remain inside.
In particular, Lockhart-Bembery says that Sauro could 7

have directed traffic around the hazard (notwithstanding the fact

that this was potentially dangerous for him), and/or that he could

have simply waited for AAA to arrive.

The jury was never instructed on the community caretaking 8

doctrine, nor was it instructed that the issue was not whether

Lockhart-Bembery had been seized, but whether Sauro's actions were

reasonable within the community caretaking doctrine.

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To the extent Lockhart-Bembery argues that Sauro acted

unreasonably because there were other, less intrusive ways to

reduce the safety hazard, that argument fails as a matter of law.7

There is no requirement that officers must select the least

intrusive means of fulfilling community caretaking

responsibilities. Colorado v. Bertine, 479 U.S. 367, 373-74

(1987); Rodriguez-Morales, 929 F.2d at 786. In Rodriguez-Morales,

an officer discovered that an individual was driving with an

expired license, and he required the individual to drive the car to

the impound lot (accompanied by the officer), although other

options were available. 929 F.2d at 782-83. The actions Sauro

took here were within the realm of reason, regardless of whether

alternative reasonable options were also available. 

We conclude that Sauro's actions were reasonable as a

matter of law. If the jury's verdict was based on a Fourth

Amendment theory of liability, the verdict was not supported by the

evidence.8
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B. The State-Created Danger Theory

Lockhart-Bembery also argues that the jury's verdict

should be upheld because there was sufficient evidence that Sauro

violated her substantive due process rights. This argument is

based on a state-created danger theory. The district court

erroneously agreed that plaintiff had stated a viable theory that

Sauro "create[d] or increase[d] the danger to plaintiff" and so

denied Sauro's Rule 50 motion.

The district court relied on Frances-Colon v. Ramirez,

107 F.3d 62 (1st Cir. 1997), which stated that a substantive due

process claim might exist when a "government employee, in the rare

and exceptional case, affirmatively acts to increase the threat of

harm to the claimant or affirmatively prevents the individual from

receiving assistance." Id. at 64; cf. DeShaney v. Winnebago County

Dept. of Soc. Servs., 489 U.S. 189, 201 & n.9 (1989) (suggesting,

but not explicitly holding, that there can be a state-created

danger doctrine). 

Even so, Frances-Colon went on to stress that "[a]

proximate causal link between a government agent's actions and a

personal injury does not, in itself, bring a case out of the realm

of tort law and into the domain of constitutional due process."

Id. As plaintiff concedes, there is a "further and onerous

requirement" that the state's actions "shock the conscience of the
The jury was not instructed on the second prong of the 9

substantive due process test. Nor was the jury correctly

instructed on the state-created danger theory.

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court." Rivera v. Rhode Island, 402 F.3d 27, 35 (1st Cir. 2005); 9

see also County of Sacramento v. Lewis, 523 U.S. 833, 846-50 (1998)

(discussing the shock-the-conscience test); Hasenfus v. LaJeunesse,

175 F.3d 68, 73 (1st Cir. 1999); cf. id. at 74 (distinguishing

between conscience-shocking and seriously negligent behavior, and

indicating that "manifestly outrageous" behavior qualifies as

conscience-shocking).

Lockhart-Bembery's claim fails on both prongs. The state

did not create the danger here. The location of plaintiff's car

posed a risk to others; it had to be moved. She recognized the

risk herself. She had the choice of moving it herself or having

the police tow it. She chose to move it herself and injured

herself in her second effort to move the car to a place where it

would be less of a hazard to others.

As we said in Rivera v. Rhode Island, while this court

and the Supreme Court have discussed the state-created danger

theory, neither has ever found the theory actionable on the facts

given. 402 F.3d at 34-35. Here, there is not even a special

relationship between the plaintiff and the state that could

arguably give rise to greater duties on the part of the police.

See DeShaney, 489 U.S. at 199-201 & n.9; Rivera, 402 F.3d at 38.

Even if, dubitante, Sauro rendered Lockhart-Bembery more vulnerable
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to risk, this still does not create a constitutional duty on the

part of the police to protect. Rivera, 402 F.3d at 37-38.

Since, as we have held, Sauro's actions were reasonable,

Lockhart-Bembery also cannot make out the second prong of a statecreated danger showing. She fails to meet the shock-the-conscience

test. Indeed, the jury rejected the claim that Sauro was even

negligent.

This court has held on facts far more troubling than

those present in this case that plaintiffs have failed to clear the

shock-the-conscience hurdle. In Cummings v. McIntire, 271 F.3d 341

(1st Cir. 2001), for example, an officer directing traffic in the

middle of the road was approached by a pedestrian asking for

directions. Id. at 343. Completely unprovoked, the officer

violently shoved the pedestrian; the pedestrian suffered permanent

back and leg injuries, and had he fallen in the street, he could

have been more seriously injured. Id. We stated that there was

"no doubt" that the officer had utilized unnecessary force. Id. at

345. But we held that his actions were not outrageous: his

behavior was motivated by safety concerns, and it did not

constitute "brutal" and "inhumane" conduct. Id. at 345-46. In

Rivera, a teenage murder witness was gunned down on the eve of

trial after the prosecution had subpoenaed her testimony and

promised to protect her from retribution. 402 F.3d at 30, 37-38.

Although it was not necessary to our holding in the case, we noted
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that the police conduct did not rise to the requisite level of

outrageousness. Id. at 38; see also Cummings, 271 F.3d at 346-47

(collecting First Circuit cases with fact patterns that did not

shock the conscience).

There was neither a state-created danger nor conscienceshocking behavior here. If the jury's verdict was based on the

state-created danger theory, the verdict was not supported by the

evidence.

III.

Our holding that Sauro was entitled to judgment as a

matter of law on the § 1983 claim resolves the remaining issues in

this appeal. Lockhart-Bembery is no longer a prevailing party, so

she is not entitled to attorneys' fees. See 42 U.S.C. § 1988(b).

We need not consider the other issues.

The judgment against defendant entered by the district

court and the award of attorney's fees to plaintiff are reversed.

Judgment shall enter for defendant Sauro.