## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 04-2714

___________ Jerry Hart; Andre Dyer, *
* Plaintiffs/Appellees, * * v. * * City of Little Rock, *
* Defendant/Appellant. * Appeal from the United States * District Court for the Eastern ___________________ * District of Arkansas.
* Arkansas State Lodge Fraternal Order * of Police, *
* Amicus on behalf of * Appellee. *

___________ Submitted: October 10, 2005 Filed: December 22, 2005

___________ Before BYE, BEAM, and SMITH, Circuit Judges.

___________ BYE, Circuit Judge. Police officers Jerry Hart and Andre Dyersuccessfully sued the City of Little Rock, Arkansas (Little Rock or the City ) under 42 U.S.C. § 1983 a lleging substantive due process violations. A jury awarded each officer $225,000, and the district court-2- denied Little Rock's motions for judgment as a matter of law (JAML) and a new trial. We reverse.

I

Hart and Dyer are police officers employed by Little Rock. On May 30, 2001, they arrested Michael Bullock on drug char ges. Bullock, who ha s three other felony convictions, had previously been arrested by Hart and Dyer and had filed complaints against them. In the course of the criminal proceedings against Bullock, his lawyer, at Bullock's behest, subpoenaed Hart's a nd Dyer's city personne l files. The subpoena was received by Stacey Witherell, an em ployee in Little Rock's human resources department. It directed Little Rock to produce the files at trial, but a cover-sheet indicated the City could comply by providing copies ahead of trial. Witherell, in accordance with Little Rock's practice, madecopies of the complete files and gave them to the lawyer on the same day the subpoena was received.

Bullock eventually pleaded guilty but not before his legal counsel gave him copies of the files containing personal in formation about Hart and Dyer, including home addresses, social secu rity numbers, names and addresses of family members, driver's license numbers, etc. While incar cerated awaiting trial, Bullock told other inmates and a sheriff's deputy he had the f iles and suggested the information could be used to cause problems for Hart and Dyer. After Bullock talked to the deputy, the copies were seized and destroyed.

Hart and Dyer sued Little Rock allegi ng the disclosure of the personnel files violated their substantive due process rights. Specifically, they alleged the disclosure violated their privacy rights, implicating their fundamental interests in preserving personal security and bodily integrity. Little Rock's motion for summary judgment was denied and the case proceed ed to trial. At trial, Hart and Dyer argued Little Rock's practice of releasing employee pers onnel files without redaction or notice to1 Bullock was not connected to the murder-for-hire scheme but knew Jimenez and lived in the same neighborhood.
-3- the employees demonstrated deliberate indiffe rence to their privacy rights. As police officers, they contended the release of in formation was especially egregious because it placed them in grave danger from crimin als who might retaliate against them or family members. Both Hart and Dyer tes tified the disclosure of their personnel files caused them much fear and anxi ety. Hart testified he move d out of his apartment, lost weight, became impatient, worried about his personal safety and hi s family's safety, and missed work because he felt betrayed by the City. Dyer tes tified he also worried constantly about his and his family's safety, changed his routine, took additional safety measures, e.g., taught his wife to shoot a rifle, bought additional weapons, and reinforced the doors to his home. Other w itnesses testified he became short-tempered, paranoid and appeared stressed.

Over Little Rock's objection, the distri ct court also allowed evidence of an incident where Hart and Dyerwere shot at during an unrelated drug arrest. The incident did not involve Bullock but wa s apparently admitted to illustrate the dangerousness of their jobs and to show their safety concerns were well-founded. Additionally, the district court allowed Hart and Dyer to presen t evidence that Shawn Jimenez, an acquaintance of Bullock's, on ce attempted to hire an undercover police officer to kill them. 1

The jury concluded Little Rock's releas e of the personnel files was a violation of the officers' substantive due proce ss rights and awarded each $225,000. In posttrial motions, the district court denied Little Rock's motions for JAML and a new trial, and granted Hart's and Dyer's motions for co sts and attorney's fees. On appeal, Little Rock contends the district court erred in denying its motion for JAML because the evidence was insufficient to support the subs tantive due process claims. Little Rock also contends the district court should ha ve granted its new trial motion because the-4- evidence relating to the shoot-out and Jimenez was improperly admitted. Finally, Little Rock contends the damage awards were unsupported by the evidence, requiring either a new trial or remittitur.

II

Little Rock first contends the districtcourt erred in de nying its JAML motion because the evidence was insufficient to prove it violated Hart's and Dyer's substantive due process rights under §1983. We agree.

We review the district court's denial of JAML "in the light most favorable to the party who prevailed beforethe jury." City of Omah a Employees Betterment Ass'n v. City of Omaha , 883 F.2d 650, 651 (8th Cir. 1989). Accordingly, we

(1) resolve direct factual conflicts in favor of the nonmovant, (2) assume as true all facts supporting the nonm ovant which the evidence tended to prove, (3) give the nonmovant the be nefit of all reasonable inferences, and (4) deny the motion if the evidence so viewed would allow reasonable jurors to differ as to the conclusions that could be drawn. Pumps & Power Co. v. So. States Indus. , 787 F.2d 1252, 1258 (8th Cir. 1986) (quotations omitted). A § 1983 plaintiff must prove the "(1) violation of a constitutional right, (2) committed by a state actor, (3) who acted w ith the requisite culpability and causation to violate the constitutional right." Kuha v. City of Minnetonka , 365 F.3d 590, 606 (8th Cir. 2004) (quoting Shrum v. Kluck , 249 F.3d 773, 777 (8th Cir. 2001)). Hart and Dyer allege substantive due process violations, arguing Little Rock's release of their personnel files greatly increased the risk of harm by private individuals who might retaliate against them as police officers.-5- Generally, states have no affirmative ob ligation to protect individuals against private violence. DeShaney v. Wi nnebago County Dep't of Soc. Servs ., 489 U.S. 189, 197 (1989). The Due Process Clause of the Fourteenth Amendment "is phrased as a limitation on a state's power to act, not as a guarantee of certain minimal levels of safety and security." Id. at 195. "Its purpose [is] to protect the people from the State, not to ensure that the State prot ect[s] them from each other." Id. at 196. The "State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197.

Substantive due process does, however, require a state to protect individuals under two theories. First, the state owes a duty to protect those in its custody. Gregory v. City of Rogers , 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc). Second, the state owes a duty to protect individua ls if it created the danger to which the individuals are subjected. Id. Hart and Dyer rely on the "state-created danger" theory. We assume without deciding that Little Rock 's release of Hart's and Dyer's personnel files created sufficient danger to implicate constitutionally protected privacy interests. Additionally, we conclude el ement two is satisfied because there is no dispute the alleged constitutional violation was precip itated by state action. Accordingly, our analysis will focus on the third element of their § 1983 claim – whether the evidence proved Little Rock acted with th e requisite degree of culpability.

The Due Process Clause's "guarantee does not entail a body of constitutional law imposing liability whenever someone cl oaked with state authority causes harm[,]" County of Sacramento v. Lewis , 523 U.S. 833, 848 (1998), and "does not transform every tort committed by a state actor in to a constitutional violation," DeShaney , 489 U.S. at 202. "[I]f the state acts affirmativ ely to place someone in a position of danger that he or she would not otherw ise have faced, the state actor, depending on his or her state of mind , may have committed a constitutiona l tort." S.S. v. McMullen , 225 F.3d 960, 962 (8th Cir. 2000) (en banc) (emphasi s added). "[T]he test we employ to ascertain a valid substantive due process vi olation is 'whether the behavior of the-6- governmental officer is so egregious, so outra geous, that it may fairly be said to shock the contemporary conscience.'" Hawkins v. Holloway , 316 F.3d 777, 780 (8th Cir. 2003) (quoting Lewis , 523 U.S. at 848 n.8).

Under the state-created danger theory, Hart and Dyer must prove 1) they were members of a limited, precisely definable group, 2) Little Rock's conduct put them at significant risk of serious, immediate, and proximate harm, 3) the risk was obvious or known to Little Rock, 4) Little Rock acted recklessly in conscious disregard of the risk, and 5) in total, Little Rock's conduct shocks the conscience. Avalos v. City of Glenwood , 382 F.3d 792, 798 (8th Cir. 2004) (citing Uhlrig v. Harder , 64 F.3d 567, 574 (10th Cir. 1995)).

Mere negligence can never be consci ence-shocking and cannot support a claim alleging a violation of substantive due process rights. Terry B. v. Gilkey , 229 F.3d 680, 684 (8th Cir. 2000). Indeed, "[w]e have held more than once that gross negligence 'is not actionable . . . under § 1983.'" S.S. , 225 F.3d at 964 (quoting Sellers by and through Sellers v. Baer , 28 F.3d 895, 902-03 (8th Cir. 1994)). "[T]he constitutional concept of conscience shocking duplicates no traditional category of common-law fault, but rather points clearly away from liability, or clearly toward it, only at the ends of the tort la w's spectrum of culpability," Lewis , 523 U.S. at 848, and "liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process," Id. at 849. Instead, "[a]ctionable substantive due process claims involve a level of . . . abuse of powerso brutal and offensive that [they do] not comport with traditional ideas of fair play and decency." Avalos , 382 F.3d at 800 (quoting S.S. , 225 F.3d at 964) (internal quotations omitted); see also Moran v. Clarke , 296 F.3d 638, 647 (8th Cir. 2002) (Substantive due process violations involve conduct "so severe . . . so disproportionate to the need presented, and . . . so inspired by malice or sadism rather than a merely careless or unwise excess of zeal that it amounted to a brutal and inhumane abuse of official power literally shocking to the conscience.") (quoting In re Scott County Master Docket , 672 F. Supp. 1152, 1166 (D.-7- Minn. 1987)). "Proof of intent to harm is usually required, but in some cases, proof of deliberate indifference, an intermediate level of culpability, will satisfy this substantive due process thre shold." Terrell v. Larson , 396 F.3d 975, 978 (8th Cir. 2005) (citing Lewis , 523 U.S. at 848-49) (holding the deliberate indifference standard is applied when actual deliberation is practical)).

In this case, Little Rock acted under ci rcumstances in which actual deliberation was practical. Therefore, its conduct s hocks the conscience only if it acted with "deliberate indifference." Id. at 851-52. To define delib erate indifference for Eighth Amendment purposes, the Supreme Court has adopted the subjective standard of criminal recklessness, i.e., "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan , 511 U.S. 825, 837 (1994). In Lewis , the Court equated deliberate indifference fo r substantive due process with Eighth Amendment deliberate indifference. 523 U.S. at 849-50. Thus, to sustain the district court's denial of JAML, we must concludethere was sufficient evidence to find Little Rock acted intentionally or wrongfully in disregarding a known danger. Avalos , 382 F.3d at 800. Conversely, if we conclude Little Rock's conduct was merely negligent or even grossly negligent, the denial of JAML must be reversed. SeeFarmer , 511 U.S. at 838 ("[A]n official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for co mmendation, cannot under our cases be condemned . . . .") (emphasis added).

The evidence showed With erell was aware the personnel files contained sensitive information and the re quest for the files was related to a criminal proceeding in which Hart and Dyer were likely involved. Additionally, Witherell testified she understood why police officers would not want their personal information released to criminal defendants – as she herself would not want her personal information released to a criminal defendant. Based on this te stimony, Hart and Dyer argue she knew there was a substantial risk Bullock might obtain and use the information to harm them or-8- their families and chose to ignore the risk. We disagree. While it is clear Witherell appreciated the sensitive nature of the in formation, there is no evidence proving she ever considered whether it would be disse minated to Bullock or another criminal defendant. Hart and Dyer make much of Witherell's testimony indicating she would be concerned if her personal information fell into the hands of a known felon. It is, however, not enough for her to testify sh e understood why police officers would want to protect such information from disclosure to criminal defendants. Instead, Hart and Dyer must prove Witherell actually cons idered the specific risk at the time she responded to the subpoena. We conclude the evidence was insufficient to support a finding Witherell ever considered, at the time she processed the request , whether the information would be disseminated to a criminal defendant who might use it to harm Hart and Dyer.

Hart and Dyer next contend Little Ro ck was fully aware the information contained in city personnel f iles is sensitive in nature a nd the practice of releasing it to third persons proves deliberate indifferen ce. They argue "the City knew or should have known . . . that providing the . . . personnel files . . . placed [them] . . . at a significant and increased risk of harm." Appellees' Br. at 39. We appreciate how the release of personal information about poli ce officers to criminal defendants could seriously impact their safety. Hart and Dyer, however, were required to prove not only the creation of a significant risk but also Little Rock's conscious disregard of the risk. The mere fact Little Rock made it a practice to release such information does not prove it ever considered the specific risk s articulated by Hart and Dyer. Assuming, as argued by Hart and Dyer, the City "knew or should have known" its actions exposed them to a significant and increased risk of harm, the evidence only proves the City acted negligently – not w ith deliberate indifference. Based on this record, we are compelled to conclude the evidence was in sufficient to permit the jury to find Little Rock recognized and deliberately disregarde d the substantial risk of serious harm alleged by Hart and Dyer. SeeBeck v. Wilson , 377 F.3d 884, 891 (8th Cir. 2004).-9- Today's holding comports with our previous applications of the standard plaintiffs must meet to prove a substantiv e due process violation. In Beck v. Wilson , the plaintiff (Beck) alleged substantive due process violations against several staff members of an alcohol and drug treatment facility after she was sexually assaulted by a male patient. 377 F.3d at 885. Beck had been court ordered to a treatment facility for males and females but at the time of her admission she was the only female patient. On her first evening there, Beck told staff members she was fearful of male patients who whistled at her and called her "baby girl." Id. at 886. The very next evening, a male patient entered a bathr oom while Beck was show ering (the bathroom doors could not be locked) and sexually assaulted her. Id. In the days following the attack, the male patient repeatedly threat ened to kill Beck and her children if she reported the attack.

The evidence on summary judgment reveal ed no previous incidents of sexual assault, but staff members were aware of previous incidents of unwelcome sexual behavior. Id. at 887. It also showed patients could not lock their bedroom or the bathroom doors and the facility had no intern al surveillance system. Instead, staff members monitored patients from a nurses' st ation at the end of a hallway and were required to conduct visual verifications on patients every fifteen minutes. Id. at 886. At the time Beck's assault occurred, ther e was no staff member monitoring patients from the nurses' station and the staff failed to perform the mandated visual verifications. Id. at 890-91. Nevertheless, we revers ed the district court's denial of summary judgment, holding the staff member s' failure to follow procedure constituted "at most, a negligent omission and a negligen t act . . . on which . . . the alleged rapist capitalized to assault Beck." Id. We concluded "[t]he summary judgment facts do not permit a reasonable jury to conclude . . . any male inpatient . . . posed a known threat . . . and, even more clearly , the facts do not permit a jury to infer [the staff] deliberately decided not to protect Beck from a known substantial risk of serious harm ." Id. at 891 (emphasis supplied).-10- In S.S. v. McMullen , we rejected a similar substantive due process claim premised on a state's failure to prevent se xual abuse. 225 F.3d at962. S.S. alleged the Missouri Division of Family services vi olated her substantive due process rights when it released her from state custody and re turned her to her father, knowing he had previously allowed a known pedoph ile to have contact with he r. S.S. alleged she was released to her father even though the pe dophile had personally contacted one of the defendants protesting attempts to limit his contact with her. After S.S. was returned to her father, the pedophile sexually abus ed her on at least two occasions. Id. On appeal from the district court's grant of su mmary judgment, we held the state's actions did not shock the conscience. "Even if the state's activities could be said to have been grossly negligent or even reckless in the circumstances present here, we believe that S.S.'s constitutional claim must fail." Id. at 964. "We do not see how we could well hold those acts actionable without violating the Supreme Court's caveat against making 'of the Fourteenth Amendment a font of tort law . . . .'" Id. (quoting Paul v. Davis , 424 U.S. 693, 701 (1976)).

We are troubled by Little Rock's practi ce of releasing its employees' personnel files – especially those of police officers – without notice or any attempt to redact sensitive personal information. Neverthele ss, we conclude the evidence shows Little Rock's actions constitute at most negligence or gross negligence and do not rise to the level of subjective deliberate indifferen ce necessary to sustain a substantive due process claim.

Despite their failure to prove deliberate indifference, Hart and Dyer argue the district court's denial of JAML should be affirmed based on the Sixth Circuit's holding in Kallstrom v. City of Columbus , 136 F.3d 1055 (6th Cir. 1998). In Kallstrom , three undercover police officers sued the City of Columbus because it released their personnel files to the attorney representing members of a violent gang. During the defendants' criminal trials, it became apparent the information contained in the files had been disseminated to them. Id. at 1059. The officers brought suit, and on appeal-11- from a grant of summary judgment the Kallstrom court held the city's practice of releasing undercover police officers' personne l files under such circumstances created a "constitutionally cognizable 'special dange r,' giving rise to liability under § 1983." Id. at 1067. According to Hart and Dyer, th eir case is factually indistinguishable from Kallstrom , and the district court was correct when it denied JAML on the basis of Kallstrom . See Addendum at A-16 (District Court Order dated February 25, 2004 denying JAML). We disagree. The Kallstromcourt based its holding on a finding "[t]he City either knew or clearly should have known" releasing the officers' personal information substantially increased their " vulnerability to private acts of vengeance." Id. In so holding, the Kallstrom court erroneously applied a negligence standard instead of the subjective deliberate i ndifference standard adopted in Farmer . 511 U.S. at 837. The district court's reliance on Kallstrom indicates it too improperly adopted a negligence standard, making the denial of Little Rock's motion for JAML erroneous.

III

For these reasons, we conclude the district court erred in denying Little Rock's motion for JAML. Accordingly, we re verse and remand for further proceedings consistent with this opinion. Because we re verse the district court's denial of JAML we do not reach the other issues ra ised by Little Rock in its appeal.

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