William H. Rehnquist: We'll hear argument now in No. 90-1279, Myra Jo Collins v. the City of Harker Heights, Texas. Mr. Rosen.
Sanford Jay Rosen: Mr. Chief Justice, and may it please the Court: This case is here on a pleading stance, as it involves the affirmance by the Fifth Circuit of a Rule 12(b)(6) motion to dismiss. That ruling of the Fifth Circuit is in direct conflict with one of the Eight Circuit in the Ruge case. In the complaint, which must be taken... the allegations of which are taken as true, plaintiff alleges that the defendant city employed her decedent, that it caused his death in violation of due process by sending him into the sewer where he succumbed, knowing that there was a high risk of death as a result of a prior incident that occurred several months before he went into the sewer and indeed before he was employed and pursuant to a policy or custom of deliberate indifference to his safety needs and the risks to his life, as evidenced by its failure to comply even with the mandates of the Texas Hazard Communication Act and thereby, failed to train, warn, properly equip or supervise him in relation to the risks. The allegations are read as claiming a violation directly of the due process clause of the Fourteenth Amendment and also a violation of due process as a result of violations of the substantive mandates of the Texas Hazard Communication Act.
William H. Rehnquist: And what is the violation of the Constitution claim, Mr. Rosen?
Sanford Jay Rosen: The taking of his life in essence, Your Honor, in disregard of his bodily security.
William H. Rehnquist: That is protected by what provision of the Constitution?
Sanford Jay Rosen: The due process clause of the Fourteenth Amendment, which specifically states that life shall not be taken without due process of law.
William H. Rehnquist: If they had given him some sort of a hearing before they sent him into this place, would that have solved the due process problem?
Sanford Jay Rosen: The only hearing that would have solved the due process problem would have been training, warning, and supervision, not a hearing, shall you go down in and succumb. If one wanted to analyze the case on procedural grounds, arguably, that could stand as a hearing, but I think not. This is basically a substantive due process case.
Byron R. White: xxx case in this Court, in your support?
Sanford Jay Rosen: In terms of his life having been lost?
Byron R. White: The closest--
Sanford Jay Rosen: The closest, excuse me, would be Harris and City of Canton, even though it involved not a public employee, of course, but it did involve the deliberate indifference of a municipality.
Byron R. White: --And a failure to train?
Sanford Jay Rosen: And a failure to train. Or, as I believe Justice O'Connor described it as an inaction in the fact of a known and patent--
Anthony M. Kennedy: That was where the woman was in the custody of the policy and slumped down?
Sanford Jay Rosen: --Yes, Your Honor.
Anthony M. Kennedy: But there she was in custody. Here it's a little hard to say that the employee is in the custody of the city. To be sure, he has a supervisor who tells him where to go and what to do, but he's not in a kind of involuntary custody that the petitioner was in Harris.
Sanford Jay Rosen: That is why, Your Honor, in all of the briefing we have taken the position that not only do you have to prove your section 1983 claim against the municipality by meeting the standard of deliberate indifference, but in order to establish the violation of the due process right itself, you have to meet a standard of deliberate indifference. For example, Your Honor, in the Daniels, Davidson, and Whitley cases, the Court specifically reserved the question of the appropriate standard for harms to individuals who were either pre-trial detainees or people whose liberty was unconstrained with respect to due process violations of the type that might have been involved in those cases.
Byron R. White: Is there a case in this Court dealing with police using undue force in making an arrest?
Sanford Jay Rosen: There have been a number of such cases.
Byron R. White: Yes. But is there one that involves liability because of lack of training?
Sanford Jay Rosen: Not to my recollection.
Byron R. White: I suppose you would say that the deliberate indifference standard involving failure to train would apply in a situation like that? What about in the... what about in the Fourth Amendment case where they... where they've... and the claim is that the municipality failed to train officers about what the rules were about entering a house?
Sanford Jay Rosen: That raises an interesting point that goes in a way to the heart of the duality that's here. As to the officer, the case would be analyzed as a Fourth Amendment proposition under Graham and Brower because any excessive force case is so analyzed. It is not analyzed as a--
Byron R. White: Training case--
Sanford Jay Rosen: --a due process proposition. As to the municipality, since... or to the entity that employs the officer, you would still under Canton and City of Harris... excuse me, City of Canton and Harris have to demonstrate that the municipality's pattern... customer policy was deliberately indifferent and caused the officer to engage in the unreasonable act under the Fourth Amendment.
William H. Rehnquist: --The deliberate indifference you are talking about here basically comes from Monell's requirement that it be a policy of the municipality rather than an act of the individual, doesn't it?
Sanford Jay Rosen: That is correct, and that gets to... past the section 1983 initial pleading obligation, which as this Court has repeatedly said, involves only two elements: that a Federal right has been invaded under the color of State law. So far as the municipality under Monell, in order to get that person as a defendant, you have to also demonstrate deliberate indifference. The Ninth... the Fifth Circuit's error in this case was that it didn't recognize that so far as section 1983 was concerned we had pled all the elements, do you have to get down right away to a determination of whether there has been a Federal right that's been invaded. And we submit that under the teachings of this Court's decisions, where there is a claim of substantive due process invasion of one's life interest or bodily security interest, that deliberate indifference is the standard that defines the constitutional right.
William H. Rehnquist: Then you are really borrowing from the Monell line of cases a concept that had nothing to do with the Constitution and importing it into constitutional law, aren't you?
Sanford Jay Rosen: I think not, Your Honor, because I can borrow that from the Estelle line of cases under the Eighth Amendment.
William H. Rehnquist: But you are not claiming an Eighth Amendment violation.
Sanford Jay Rosen: No, we are not. Arguably we could stand here and say that demonstrating that the municipality had caused this violation through deliberate indifference is sufficient and all we need to do then is demonstrate some level of recklessness or gross negligence, as was left free, at least for argument, in Daniels, Davidson, and Whitley.
William H. Rehnquist: How does your case differ from DeShaney v. Winnebago County?
Sanford Jay Rosen: The way that differs is we analyzed DeShaney as essentially a State action causation case. In DeShaney, Mr. Chief Justice, your analysis was that there essentially was an intervening private cause for which the State was not responsible, and there was no State action. In other words, the chain of causation had been broken. No such thing exists in this case.
Byron R. White: Well, the Fifth Circuit seemed to say that there be... there could have been liability if there had been an abuse of governmental power.
Sanford Jay Rosen: And I know not where they get that as an element of a section 1983 claim.
Byron R. White: Has it ever... has that... has that concept been given some content in the Fifth Circuit?
Sanford Jay Rosen: Yes, the content is--
Byron R. White: What would have been... what would have been an abuse of governmental power in a case like this? What could it have been?
Sanford Jay Rosen: --As I read the Fifth Circuit law, which involves four... five cases in which they have used that phrase, I don't think it is possible to make that assertion within the context of an employment relationship for an injury that occurs on the job.
Byron R. White: Well, having employees is an exercise of governmental power I suppose, isn't it?
Sanford Jay Rosen: We believe so, Your Honor.
Byron R. White: And... did you argue to them that it is an abuse of governmental power if you don't train your employees properly?
Sanford Jay Rosen: We argued, by the time we got to the Fifth Circuit, as its opinion reflects, that the analysis presented by the Eighth Circuit in the Ruge decision is the correct analysis, which tracks just what Your Honor said, that it's not the employment and the injury in employment, but by putting somebody untrained in a position of high risk known to the municipality and so far as these pleadings are concerned, we may infer, not known to decedent, that is the violation of constitutional right. We stand on the Eighth Circuit analysis.
Antonin Scalia: Counsel, do you know... section 1983 aside, do you know of any case involving the due process clause and involving substantive due process, deprivation of life, liberty, or property, where the deprivation was not intentional, where the State through negligence or gross negligence or whatever you like has caused somebody's death and it's been held to be a violation of the due process clause?
Sanford Jay Rosen: I would think, if you are speaking of the State as opposed to an individual flesh-and-blood State actor, I know of no such case, so far as--
Antonin Scalia: You think the test for a constitutional violation under 1983 is different from the test under the due process clause, simpliciter, as we say?
Sanford Jay Rosen: --No, Your Honor. I think it is the same, and that is why we have gone for the standard in this context of deliberate indifference, which under Wilson is an intense standard.
Antonin Scalia: Yes, but as the Chief Justice pointed out, that's the standard for attributing... for attributing the violation to the municipality, but in all of the cases I am aware of anyway, the violation, at least when you are talking about a due process, substantive due process violation, is an intentional violation on the part of somebody, not that the person died or was deprived of something accidentally or even with gross negligence. At least somebody did it intentionally. Then if you want to attribute it to the city, you have to have gross indifference, but you need some intentional action, don't you, for a due process violation?
Sanford Jay Rosen: What we... our position is that the city's failure to train is the intentional action, just as in LaFleur the--
Antonin Scalia: I don't mean any intentional action, I mean, the deprivation has to be intentional. You have to intentionally have deprived the person of life, liberty, or property, not by mere accident.
Sanford Jay Rosen: --But intent has two components. There's the standard that's articulated in Wilson, albeit in an Eighth Amendment context, in which Your Honor described it, and as I analyze it, as what is known as objective intent. And then there is a standard, I think in Whitley and Albers which one would analyze as subjective intent. We suggest that you do not need to prove the objective intent to make out the due process violation, and we have adequately pled the objective intent standard.
Speaker: Well--
Sanford Jay Rosen: We think that perhaps in LaFleur, for example, the pregnancy leave case, surely someone performed an intentional act of saying you must go on leave, but there was no intent to violate a right as such.
John Paul Stevens: --That is not a substantive due process case.
Sanford Jay Rosen: Well, it was analyzed, as I recall, an arbitrary and capriciousness standard basis as opposed to equal protection bases. And we would submit, Your Honor, that at those levels, the equal protection analysis is really a subset of a fundamental substantive due process--
Antonin Scalia: I suppose then when the Army is grossly negligent or something or a general is grossly negligent in the conduct of a battle and some troops are killed... or deliberately indifferent, that's a violation of the due process clause.
Sanford Jay Rosen: --No, I think not. It is contextual, Your Honor.
Antonin Scalia: Why wouldn't it be a violation of the due process clause, these people would have been deprived of their lives, and there would have been, you know, deliberate indifference.
Sanford Jay Rosen: First... well, that's not gross negligence.
Antonin Scalia: All right. Let's say deliberate indifference. That is a violation of--
Sanford Jay Rosen: That's an intent... that's an intent, as I read the cases, albeit in the Fighth Amendment context. That equates to intent. Now, fallback--
Antonin Scalia: --Do you have any due process case that says that?
Sanford Jay Rosen: --That uses deliberate indifference?
Antonin Scalia: Right, for purposes of deciding whether there has been a violation of the due process clause, not for purpose of attributing it to the city.
Sanford Jay Rosen: It has been reserved, Your Honor. The closest is the Whitley and Albers case in which the subjective intent standard was applied, and the issue was reserved as to people who were either pre-trial detainees or people whose liberty was not constrained. We submit that it is contextual in the sense of the government need, the interest of the individual, and where the acts are taking place.
William H. Rehnquist: Under your analysis, you really don't need the Federal Tort Claims Act to sue a Veterans Hospital or to sue anybody else that works for the government. You have a Bivens action, I presume, if you can show the deliberate indifference on the part of a government employee, a surgeon or a postman that ran over you?
Sanford Jay Rosen: I think not, Your Honor, under the... as I understand the Federal Tort Claims Act, which is not before us, it basically precludes Bivens actions for actions that are taken properly within the scope of employment. So the issue never gets to the courts, except on the basis of a proper certification of whether the action was taken within the scope of employment.
William H. Rehnquist: Well, wouldn't you have a Bivens claim against someone who, under your theory, denied... took your life away by deliberate indifference to your safety on the part of the government?
Sanford Jay Rosen: If you are talking about the Federal Government, I understand that the Federal Tort Claims Act and this Court's decisions take care of that. If you are talking about the State--
William H. Rehnquist: Well, take the Federal Government.
Sanford Jay Rosen: --I understand that if there is a certification that the action occurred within the course of... within the course of employment--
William H. Rehnquist: Supposing there had never been a Federal Tort Claims Act passed, and the government just says we have sovereign immunity from all of this.
Sanford Jay Rosen: --Well, then the government is out, but the individual actor under a Bivens action sued in his or her personal capacity presumably would have to stand in answer if a claim of deliberate indifference is made. Yes, Your Honor.
William H. Rehnquist: And that would be a constitutional violation?
Sanford Jay Rosen: If proven, and proving it, of course, is extremely difficult.
William H. Rehnquist: So that if I can show that a postman deliberately runs over me, or is consciously indifferent to my welfare, I can sue him under the United States Constitution?
Sanford Jay Rosen: Runs over you while he is driving the postal truck?
Speaker: Yes.
Sanford Jay Rosen: That... that's a one tough one, Your Honor. I know those hypotheticals are used in the negligence cases, which is one of the reasons why you've have identified that negligence can never be the standard for making out a due process violation involving injury to person, property or life. And we do believe, Your Honor, that it is a question of identifying the appropriate standard that is the task of this Court.
Anthony M. Kennedy: Well, even if we were to acknowledge that, you know our problem, obviously, a reluctance to have an undifferentiated, broad-based substantive due process right under 1983. Why shouldn't we just apply the Parratt line of cases to such claims, and to say that they apply in the substantive violation area as well, when the claim is undifferentiated, not based on the First or Fourth Amendments or a specific constitutional violation? Because it seems to me that would strike very close to the root of the real harm. If there's no ability to recover from the State, it seems to me that that is an aggravated factor that might be taken into account in determining whether there's 1983... liability at all?
Sanford Jay Rosen: Your Honor, that would involve a modification of what appears to be the rule in Zinermon v. Burch.
Anthony M. Kennedy: Yes, it would.
Sanford Jay Rosen: But obviously the Court is free to make that modification. I don't know however why there should be a differentiation between substantive due process rights against arbitrary or capricious government action and First Amendment rights or equal protection rights or other--
Anthony M. Kennedy: Because of the obvious problem of your turning 1983 into a general tort statute.
Sanford Jay Rosen: --I think not--
Anthony M. Kennedy: Which was probably not the intent of the Congress.
Sanford Jay Rosen: --I agree. That wasn't the intent of Congress, but it was the intent of Congress to reenact the Constitution in terms of its liberty components through the enactment of section 1983, and it was the intent of Congress that section 1983 should be a broad remedial statute. It is appropriate to differentiate with respect to the standards within one bundle of rights, substantive as opposed to procedural, as to what standard will be applied--
Anthony M. Kennedy: But if there is an adequate remedy, then that necessity is gone.
Sanford Jay Rosen: --Well, as I say, it would require a revision of the statement in Zinermon v. Roth to say that, but we don't agree that this is an attempt to turn section 1983 into a general tort statute. As--
John Paul Stevens: But is it not true that your theory... in this case you have an employee who is suing.
Sanford Jay Rosen: --Right.
John Paul Stevens: But your theory would equally apply to a civilian pedestrian walking down the street who fell into a manhole... said they'd left a cover off a manhole and somebody fell into the sewer and they were deliberately indifferent in the way they taught people to put manholes back onto the sidewalk?
Sanford Jay Rosen: It is... it is conceivable that such a case could be--
John Paul Stevens: You are not limiting... your category of potential plaintiffs is not limited to employees, by any means?
Sanford Jay Rosen: --No, it does not, and it doesn't necessarily limit it to death as opposed to physical or emotional injury--
John Paul Stevens: Physical injury and impairment of liberty. And your test, I want to be sure I understand you, because you are not relying on a procedural due process claim. You are claiming this is a violation of substantive due process?
Sanford Jay Rosen: --As pled and presented below, that is essentially correct except with respect, at some levels, to the claim under the Texas Hazard Communication Act, but it has not been briefed very fully to you.
John Paul Stevens: There you are claiming that statute gave you some kind of a liberty interest of which you could not be deprived without a prior hearing, is that it?
Sanford Jay Rosen: That would be one thing. If one had to fall back under that statute, we believe that the respondent has demonstrated the inadequacy of the remedy available with respect to these claims, by demonstrating, for example, that under the Texas Tort Claims Act, if a private employee were killed, an action could be brought for gross negligence and exemplary damages, but because of the immunity statutes--
John Paul Stevens: There is some kind of constitutional obligation to give employees of the city precisely the same remedy that non-employees would have?
Sanford Jay Rosen: --Well, it certainly renders suspect the adequacy of the remedy under the Texas Hazard Communication Act. But this case has been analyzed and presented, principally as a substantive due process case. No question about it. And there is no decision of this Court that has reached the proportions of this case. There are several circuit court decisions that we believe are instructive.
John Paul Stevens: No decision of this Court that holds there is a substantive due process violation by committing a tort, whether it's negligence, deliberate or deliberate indifference, is there, other than substantive due process, in the sense of picking up one of the enumerated rights in the Bill of Rights... if it's the Eighth Amendment or the Fourth Amendment.
Sanford Jay Rosen: Yes, there is--
John Paul Stevens: Which one?
Sanford Jay Rosen: --and we submit that that is Whitley and Albers, does suggest that--
John Paul Stevens: That's an Eight Amendment, wasn't it?
Sanford Jay Rosen: --I beg your pardon?
John Paul Stevens: Wasn't that an Eight Amendment case?
Sanford Jay Rosen: No, Your Honor. In the decision, I believe, the Court also addressed the due... substantive due process claim and held it to the same standard as the Eighth Amendment standard. So that would be the only case that appears to be more or less directly on point, albeit in the context of--
John Paul Stevens: At least you can't find a case that wasn't at least an alterative provision of the Bill of Rights, an alternative ground--
Sanford Jay Rosen: --The implications of both Daniels and Davidson--
John Paul Stevens: --They were procedural due process cases.
Sanford Jay Rosen: --That is true.
Speaker: At least in part.
Sanford Jay Rosen: They were addressed as procedural due process claims. I frankly don't know why.
John Paul Stevens: Because the majority didn't follow my separate opinion. [Laughter]
Sanford Jay Rosen: I do recall that, but I meant there were concessions along the way by counsel. It was analyzed specifically as procedural.
Speaker: Mr. Rosen.
Sanford Jay Rosen: Yes, sir.
Antonin Scalia: Never mind deliberate indifference, even intentional action on the part of the government, that is, intentional action by a government officer, which is the only way the government can act, the tort claims act carefully excludes intentional torts. And I guess under your theory of what substantive due process embraces, it doesn't matter if the Tort Claims Act excludes intentional torts, does it, because you could have a Bivens action, I suppose for the intentional torts.
Sanford Jay Rosen: You might, but not against the government.
Antonin Scalia: Because they aren't constitutional, but not against the government.
Sanford Jay Rosen: And it would have to be against the officer in his individual capacity.
Antonin Scalia: And that would be a constitutional action against the officer?
Sanford Jay Rosen: I would think so--
Antonin Scalia: For depriving you of--
Sanford Jay Rosen: --Your life.
Antonin Scalia: --Limb, life, liberty, or property without due process of law.
Sanford Jay Rosen: Yes, and if the standard--
Antonin Scalia: Substantive due process is wonderful. It really... it... everything turns into a constitutional thing.
Sanford Jay Rosen: --I don't think so, Your Honor. It would be everything turns into a constitutional thing if you were talking about negligence or a failure to apply a proper duty of care or standard... ordinary standard of care. We're talking about intent. At the very least, we're talking about deliberate indifference, which is objective intent. And why shouldn't the populace be protected from the government if it really goes about on that level of willfulness, taking people's lives or injuring them egregiously or taking their property? We believe that that was the purpose in the enactment of the Constitution and certainly in section 1983.
Antonin Scalia: Do you think they knew about substantive due process when 1983 was enacted?
Sanford Jay Rosen: I believe they did--
Antonin Scalia: They had this line of cases clearly in mind?
Sanford Jay Rosen: --Yes, there was some discussion of the Coyne case, if I recall, in the debates. There was some discussion of substantive due process, natural law kinds of cases, in some of those debates, to the best of my recollection... not clearly in mind. I have admitted already and I think the record is clear, the historic record, that there wasn't a lot of debate on section 1 of that Civil Rights Act, that the focus was on the criminal provisions and the conspiracy provision.
Antonin Scalia: Were there any substantive due process cases on the books at the time 1983 was decided?
Sanford Jay Rosen: I think not.
Antonin Scalia: I thought this was before the Lochner era when--
Sanford Jay Rosen: I think it may have been... were there things in Barron and Baltimore and there were circuit decisions by Justice Washington and such that dealt with very much related concepts under the fourth... Article IV, equal protection or privileges and immunities clause. But I see--
Harry A. Blackmun: --Is there is any State litigation pending or attempted?
Sanford Jay Rosen: --The only State litigation... there is no private claim that could be brought in State court. The attorney general of Texas did bring an enforcement action, a civil action under the Texas Hazard Communication Act which the court has agreed to take judicial notice just on the subject of the applicability to these circumstances--
Sandra Day O'Connor: There were workman's comp benefits available, right?
Sanford Jay Rosen: --I beg your pardon. There were.
Sandra Day O'Connor: As a matter of State law.
Sanford Jay Rosen: As a matter of State, but--
Sandra Day O'Connor: But not punitive damages?
Sanford Jay Rosen: --Not punitive damages, not general damages. And as a matter of State law, a private... an employee of a private entity would have those claims.
Anthony M. Kennedy: Under workman's compensation in State law, is there an exception for serious and willful misconduct or something like that, so that if there's aggravated conduct there can be a suit under the general tort laws?
Sanford Jay Rosen: For gross negligence, but not against the municipality, which is immune where there is a death. Thank you, Your Honors. May I reserve my remaining time?
William H. Rehnquist: Yes, Mr. Rosen. Mr. Powe, we will hear now from you.
Lucas A. Powe, Jr.: Mr. Chief Justice, may it please the Court: What this case lacks is a constitutional violation. Petitioner attempts to create one by stringing epithets at the city's conduct in a worker's compensation case. Petitioner's argument is that if there is injury on one hand and a bad enough governmental entity on the other, and causation between the two, there is a constitutional violation. This has never been the law; this ought not be the law, because if it is, it is going to turn a tremendous amount of litigation into Federal constitutional law. Let me offer a hypothetical which I believe will help flesh out the facts of this case and the contours of what's available. The police department of Harker Heights is deliberately indifferent to the maintenance of its cars, just doesn't care about them. Police go out; they arrest a suspect. Driving the suspect back, the steering wheel jams, the police officer and the suspect are both killed. In our mind the suspect has a 1983 action. The police officer does not have 1983 action. The reason for the distinction between these two people is custody. When this Court has dealt with section 1983 claims in a substantive due process fashion, the key element is custody.
Speaker: What difference does that make?
Lucas A. Powe, Jr.: Justice White, a person as Jeraldine Harris in City of Canton v. Harris wasn't free to make her own choices under those facts. If she wanted to leave the police station, presumably the officers would have prevented it. Custody is a basic fact where an individual in our society loses the liberty of choice, and the due process clause is about the--
John Paul Stevens: But what if the police sergeant is told by the lieutenant, you drive that car, you have no choice in this matter.
Lucas A. Powe, Jr.: --That is not true, Justice Stevens. The... I am not saying that the consequences of failure to drive the car are de minimis but the sergeant has the opportunity under our society to say, I won't drive the car.
Byron R. White: You think the passenger in custody would have a substantive due process claim. Is that what you are saying?
Lucas A. Powe, Jr.: I would like to concede that arguendo for purposes of this case only. It is clear to me that--
Byron R. White: But the only custody cases we've had where there is a violation of recovery is our Eighth Amendment cases, aren't they?
Lucas A. Powe, Jr.: --Well, it seems to me that your decision in City of Canton v. Harris at least suggested that there would be that, and I don't mean to argue the suspect's constitutional rights before this Court. I wish to argue the city's constitutional rights, and it is my contention that--
Byron R. White: Let's assume that this arrest is made and the trouble is that the officer driving the car just doesn't know how to drive. And the reason he... one of the reasons he doesn't know how to drive is that they didn't even inquire whether he knew how to drive and they sent him out. You could say they are deliberately indifferent. Would you say that is a... there would be a 1983 action there?
Lucas A. Powe, Jr.: --By the suspect?
Byron R. White: Yes.
Lucas A. Powe, Jr.: I'd like to concede it for the purposes of this argument--
Byron R. White: No. I don't want you to just concede it. What's your opinion?
Lucas A. Powe, Jr.: --My opinion is that the government does in fact owe some duties that are sufficient to get past a 12(b)(6) motion under this, that facts would be necessary--
Byron R. White: All right, so you get that and you go to trial and you prove that they just didn't seem to care whether the people who drove police cars knew how to drive or not.
Lucas A. Powe, Jr.: --My instinct is that when the police takes--
Byron R. White: Your legal opinion is?
Lucas A. Powe, Jr.: --My legal opinion is that when the police take someone off the street, that they owe a duty of reasonable care to that.
Byron R. White: So that would also go just to any pedestrian that was run over by somebody who didn't know how to drive?
Lucas A. Powe, Jr.: No, no.
Speaker: Why not?
Lucas A. Powe, Jr.: I don't believe that that's true.
Byron R. White: Why not? Don't they owe some duty to--
Lucas A. Powe, Jr.: I think that's the third line. I was ready in my hypothetical to kill a pedestrian if necessary. [Laughter] Although I would like to minimize the number of deaths in one argument.
Byron R. White: --But you still have got to deal with that.
Lucas A. Powe, Jr.: The point that I have in my argument is that the police officer who was driving the car may only prevail in a 1983 action if this Court holds that there is a duty of workplace safety that the city must provide. And this Court's cases don't... there is no indication anywhere in this Court's constitutional cases that a municipality has a duty of workplace safety.
Sandra Day O'Connor: Mr. Powe, I suppose in one sense a government employee has to do what the employee is told to do by the supervisors or risk being fire, and in that sense, may be as much in the control of the government as Ms. Harris was in the City of Canton, in a different sense.
Lucas A. Powe, Jr.: I simply don't believe in our society that that can be an accurate description. Ms. Harris has no choices whatsoever once the police bring force to bear upon her. But my police officer, unless this Court is going to repeal the Thirteenth Amendment, may always quit his job.
Antonin Scalia: Mr. Powe, we don't say that for purposes of a violation of the First Amendment, for example. We don't say that you can do whatever you like to government employees with regard to restricting their speech, because after all, if they don't like it, they can quit.
Lucas A. Powe, Jr.: That's quite true.
Antonin Scalia: So why should it be any different for substantive due process?
Lucas A. Powe, Jr.: That's quite true because this Court has found that the Constitution applies in the workplace--
Antonin Scalia: Right.
Lucas A. Powe, Jr.: --With the First Amendment, the Fourth Amendment, the equal protection clause, the specific--
Antonin Scalia: But not the substantive due process clause for some reason?
Lucas A. Powe, Jr.: --That's quite correct.
Antonin Scalia: Why? Could you... because you'd lose this case otherwise? [Laughter] Would equal protection apply.
Lucas A. Powe, Jr.: I hoped I got that out; I meant to. There is a reason why this Court has held. First, the very fact that a provision has been placed specifically in the Constitution is a demonstration by those involved that they believed the government was more likely to violate that provision and its violation was more harmful.
Antonin Scalia: They didn't really believe in substantive due process.
Lucas A. Powe, Jr.: Well, the case that you were asking Mr. Rosen for is Dred Scott v. Sanford. That's the only substantive due process case that I am aware of.
Byron R. White: Well, they really believed in due process. They just didn't ever believe that there was anything substantive about it.
Lucas A. Powe, Jr.: That is quite correct, Justice White, of course.
Sandra Day O'Connor: Mr. Powe, what if here the city knew, clearly knew that sending this employee into the sewer would result in his death, but concluded that it was going to send him anyway, intentionally sent him there to his death?
Lucas A. Powe, Jr.: I don't see that it makes any difference whatsoever.
Sandra Day O'Connor: No liability?
Lucas A. Powe, Jr.: No liability... it is wrong. Let me make it clear. It's wrong. The facts that you give might be enough for an indictment, and I'm not a criminal law expert but some form--
Sandra Day O'Connor: No, we are talking about whether it is a substantive due process violation?
Lucas A. Powe, Jr.: --No, no. It is not. I think it is tortious, there is a State system that is fully functioning that is able to deal with tortious conduct. There is an assumption that seems to pervade--
Sandra Day O'Connor: Well, do you defend the court below where it has a turn on whether there is an abuse of government power? That's how I read the court, as finding within 1983 some element of having to prove abuse of government power. Do you defend that?
Lucas A. Powe, Jr.: --No, not really. I think the Fifth Circuit was caught in its standard between this Court's decisions in Parratt v. Taylor and Daniels v. Williams, and it was doing the best it could. I think if it had thought further about what it was dealing with, it would have understood the discussions of abuse of power occur in the context of custody with the police--
Anthony M. Kennedy: I want to make sure why you concede that there is liability in your hypothetical. Is it because there is a Fourth and an Eighth Amendment concern? This custody requirement that you impose, where does that come from?
Lucas A. Powe, Jr.: --I believe reading Justice White's opinion in City of Canton v. Harris--
Anthony M. Kennedy: That's a Court opinion.
Lucas A. Powe, Jr.: --Excuse me, Justice White. That the decision to restrain liberty, to prevent a person--
Anthony M. Kennedy: That's standard Fourth Amendment law.
Lucas A. Powe, Jr.: --I will agree with that. I think of... I have been thinking of--
Anthony M. Kennedy: So your hypothetical, it doesn't seem to me to advance the analysis very much. And I am frankly surprised you concede it, because if you say that if there is custody as a free-floating substantive due process right to be treated properly within custody, it's just a slight extension to say that this employee was in the constructive... I mean, you know how that works.
Lucas A. Powe, Jr.: --I know how it works, but I just don't believe that it's accurate. I don't believe that we can discuss in our country the idea that work is a custodial environment. That seems to me to be contrary to all our notions. It is true that for some people the economic system imposes more constraints than on others, but I think that that's much like the problem in DeShaney v. Winnebago County, that some children have the misfortune of being born to bad fathers.
Antonin Scalia: Mr. Powe, why is custody important? I am trying to grasp... I understand that you are drawing the line on custody, but is it because if there is custody there is a specific provision of the Constitution violated, as opposed to the substantive due process provision?
Lucas A. Powe, Jr.: No, Justice Scalia.
Antonin Scalia: Suppose provision--
Lucas A. Powe, Jr.: If I understood, the reason I am drawing the line at custody is that if there is not custody a State does not violate due process of law with respect to the people it deals with.
Antonin Scalia: --That's the conclusion.
Lucas A. Powe, Jr.: I think that that's what flows from this Court's cases.
David H. Souter: But isn't the reason that there is liability if there is custody essentially a Fourth Amendment or an Eighth Amendment analysis, which you are saying you don't have here.
Lucas A. Powe, Jr.: No, it... we don't have--
David H. Souter: Isn't that what you mean?
Lucas A. Powe, Jr.: --Yes.
David H. Souter: So you're drawing a line for purposes of 1983 between substantive due process and the violation of other constitutional provisions.
Lucas A. Powe, Jr.: Substantive due process--
Antonin Scalia: Real constitutional provisions, the ones that really say that.
Lucas A. Powe, Jr.: --Well, there are... I think within that there's still some ambiguity because at various times this Court has held that substantive due process can give meaning to an idea as if it were functionally equivalent to a specific guarantee of the Constitution. At one time, liberty of contract under Lochner was such a right. The right of privacy under Griswold appears to be such a right; the right of travel.
John Paul Stevens: Can I ask-- --challenge your custody that's sanctioned with an example. Supposing a woman has been raped and wants an abortion, and that everyone would agree in the hypothesis that she had a substantive due process right to an abortion. She is not in custody. Could the State arbitrarily interfere with her access to the abortion clinic?
Lucas A. Powe, Jr.: The State can't interfere with a guaranteed constitutional right under any circumstance.
John Paul Stevens: It is guaranteed only in a substantive due process--
Lucas A. Powe, Jr.: Yes, that is true, Justice Stevens, but it is one of those very few examples where this Court has interpreted substantive due process as if there were specific words beyond due process: right of privacy. There is no case that does it with workplace safety. This case... Court has avoided finding a fundamental right to food, to clothing, to shelter, to education, to employment--
John Paul Stevens: --But how about travel then? Supposing somebody wanted to get access to someplace... you would say that that is also one that's been crystallized as a... as though it were--
Lucas A. Powe, Jr.: --As though it were. Substantive due process, as you--
John Paul Stevens: --So there three kinds of substantive due process rights: those that are enumerated, those are just... might as well have been enumerated, and then this kind of noncustodial category?
Lucas A. Powe, Jr.: --I think... functionally, this Court has developed these categories where there are the specific guarantees in the Constitution. There are some aspects of substantive due process which are the functional equivalent of specific guarantees in the Constitution. That seems to me to be a fair reading--
Byron R. White: And then there are some others that are in the penumbra.
Lucas A. Powe, Jr.: --Yes. If I could state that work place safety, to use Palko, is simply... doesn't seem to me to be implicit in the concept of ordered liberty. It's important, but it's not the same rank order. There is no reason to believe I think that government is more likely to infringe on the safety of its employees than private employers. There's no more reason to believe that a government infringement here would be more harmful to the people involved than if it happened with private employers. Indeed, one facet of government in the workplace is that governmental policies may be changed. Governments are not as driven as private corporations by the bottom line. We can change governmental policies through democratic processes, and that seems to me to be perfectly applicable to these cases.
Clarence Thomas: Would it change your analysis, Mr. Powe, if Mr. Collins were a city prisoner, required to clean the sewers?
Lucas A. Powe, Jr.: Yes, I believe that... I believe the city--
Clarence Thomas: Your workplace analysis?
Lucas A. Powe, Jr.: --I believe the city owes a higher duty to those who are forced by the force of law, forced into what they are doing than those who do so voluntarily in employment.
Clarence Thomas: But where's the underlying constitutional right?
Lucas A. Powe, Jr.: I think the underlying constitutional right is the facet of due process of law that ties into coercion.
Antonin Scalia: xxx voluntary-- --I suppose a member of the State national guard whose commanding officer tells him to go down... where does he come? I mean, he is an employee but he goes to jail for desertion or insubordination.
Lucas A. Powe, Jr.: I grant that it... or I grant the problem that you are giving me with the hypothetical. I do not pretend that coercion is a perfect bright-line rule that one can see both sides of it at all times. There will be some blurry situations involving custody coercion. I don't dispute that. For purposes of this case, if the workplace is custodial or coercive, then I think everything is. And I think that it's important to realize that workplace safety is very, very far to one side of the line that I'm drawing. Petitioner's argument is that only a Federal judicial forum can provide the needed remedy for her and that this Court should eschew bright-line rules in formulating what should happen. As petitioner words it, all she is asking for is an opportunity to go to Federal court under certain very limited circumstances. The participation of the amici seem to... in this case seem to me to belie that. I think there is an understanding of the various amici that have filed briefs in this case that something big is at stake in the amount of litigation that can occur. If I... if the city of Harker Heights has sent three individuals down that manhole that day... one, Mr. Collins had died, another had been seriously injured, and the third, while getting out had broken his wristwatch, this Court would be faced with three 1983 cases today, one involving life; one involving liberty, bodily security; and one involving property. The point of this is that it's not sewers. It's schools, it's hospitals, it's everywhere that government is, because petitioner's argument is that if the government is bad enough and there is injury, then there is going to be a 1983 claim. Petitioner states that when I articulate this, that I am making a floodgates argument. I think that my argument is both constitutional law and it is a floodgates argument, because I find nothing in petitioner's argument that would close the floodgates. I don't even find a finger in the dike under these circumstances. What petitioner I think overlooks consistently is the point of States and the creativity within our Federal system. The States for the last 20 years have been amazingly active in tort reform. Under some circumstances the States have expanded liability. In a couple of areas they have contracted liability. Torts is an area that the State courts deal with, and the legislatures deal with. Texas, in fact, has dealt with the problem that we are discussing today in two separate fashions. In one fashion there is the Texas Worker's Compensation Act. Petitioner is receiving a worker's compensation award under the Texas statute. In the other hand, there is the Texas Hazard Communication Act. I... in petitioner's brief, as I understood the brief, and I did not hear this in the oral argument, petitioner was trying to state that the Texas Hazard Communication Act created some form of constitutional expectation that would then be protected by due process. It was as if Texas had created this right on one hand and then inadvertently failed to provide a good enough remedy for the constitutional right that Texas had created. I believe that petitioner's argument in her brief about the Texas Hazard Communication Act borders on unconstitutional. It seems to me that the Texas legislature is free to pass whatever statutes it pleases. It is perfectly free to remedy those statutes in any way that it pleases, and if Texas did not adequately provide a good enough remedy under the Texas Hazard Communication Act, that the forum for discussion of that is either in Austin, Texas, or across the street at the Congress.
Byron R. White: If a police officer goes out to a scene of some confusion or commotion and wants to get through a crowd and the crowd tries to block him and he just uses his gun or his stick unnecessarily... doesn't intend to arrest anybody, he just wants to get out, and he hurts somebody unnecessarily... would you seek... you could plead a 1983 action there?
Lucas A. Powe, Jr.: I am not sure--
Byron R. White: It isn't a Fourth Amendment issue.
Lucas A. Powe, Jr.: --No, it's not. You are quite correct. It does seem to me that police and their ability to use force, and use force without fear, I think, of violence coming back at them, at least in your crowd example--
Byron R. White: This is a form of coercion?
Lucas A. Powe, Jr.: --Justice White, when a police officer tells me to move along, I view that as a very good idea. I think that that is a statement that is backed up by the power of the State and--
Byron R. White: So you would say, if you could prove that there... that this officer wasn't really trained and there was deliberate indifference about his training, that it would be a 1983 case?
Lucas A. Powe, Jr.: --I'm sure that--
Byron R. White: Is this an arguendo thing?
Lucas A. Powe, Jr.: --Yes. That is arguendo. I was about to say, I am sure petitioner would agree with that. In Daniels v.--
Antonin Scalia: What about this situation, if it were intentional... that is, not deliberate indifference, but the State said, yeah, we know there's gas down there and you are going to get hurt, but we want you to go down. That wouldn't make any difference?
Lucas A. Powe, Jr.: --No, it doesn't make any difference to me. I think that whatever standard of fault that can be required, it can be pled. And my point is that without a custodial setting, there simply is not a constitutional violation under due process of law.
Antonin Scalia: I don't know what could be a more clear violation of substantive due process than intentionally taking somebody's life... intentionally taking somebody's life. I mean, you know, you talk about relatively more obscure things such as the other rights, privacy rights you were talking about. I am talking about killing somebody and you say that is not a violation of substantive due process?
Lucas A. Powe, Jr.: That is correct, under some circumstances. Substantive due process takes its position from context.
Antonin Scalia: I guess I don't understand substantive due process at all.
Lucas A. Powe, Jr.: I think, Justice Scalia, that substantive due process is the most difficult concept in constitutional law, and I think you understand it as well as or better--
Byron R. White: You shouldn't just compound the error. [Laughter]
Lucas A. Powe, Jr.: --Yes, I think that's an excellent statement. In Daniels v. Williams, this Court noted that the only thing governmental about the action was the fact that the respondent was a deputy sheriff and the petitioner was an inmate in his custody. At least there was custody there. In the instant case, the only thing that separates this case from an ordinary tort is the fact that the respondent happens to be a governmental entity. Otherwise, this case presents a tort case.
John Paul Stevens: Well, your opponent disagrees with that. I'm not sure that it's right. He says there's this higher standard of proof, the deliberate indifference and so forth, which is also his thumb in the dike. That's why he doesn't think you are opening the floodgate. So there is that. The ordinary negligence wouldn't be enough, where it would be in most cases.
Lucas A. Powe, Jr.: This case would be found in torts class, tort as a personal injury problem. I don't believe that deliberate indifference covers a constitutional case. I don't believe that Joshua DeShaney could succeed on the facts of that case if the case went back and were repleaded as a deliberate indifference case. I don't think deliberate indifference is a facet of the Constitution under these circumstances. It came about as a way in this context of ascribing liability to a city for a constitutional violation that existed. It did not create the constitutional violation itself.
John Paul Stevens: Yes, but the other side of the coin, and I didn't agree with it myself, but the Court has said in effect that negligence isn't enough to establish a constitutional violation, which seems to me to imply that something more than negligence might.
Lucas A. Powe, Jr.: Something more than negligence might in the types of settings where this Court has been deciding its 1983 cases. This case marks a tremendous change in the type of 1983 case that has been brought. I think that this case is the equivalent of Paul v. Davis when... once you had Monroe v. Pape, I think a case like Paul v. Davis was an inevitable outgrowth, and I think that once you have Monell, a case like Collins v. City of Harker Heights is the outgrowth. But I do think that the fundamental insight of Paul v. Davis was that neither 1983 nor the Fourteenth Amendment turned this Court into a uniform commission on State tort law.
Byron R. White: So if a... if the mayor of a city has an enemy that opposes... has opposed him and he knows exactly where he lives and there is a snow storm and he tells the driver of the snow plow, why don't you just tear up that fellow's lawn in the process of cleaning the street and he does it, and I take it that this is no difference than causing a death or anything. It's just no 1983 action.
Lucas A. Powe, Jr.: That's right. It is a tort for which there are State courts and State remedies available to deal with. Not every injury committed by government has to be a constitutional violation.
John Paul Stevens: I know, but you wouldn't go so far to say that they sent the man into the sewer or ran over the front lawn, because the man was a member of another political party or because he was a member of the wrong race or something like that? You aren't going that far?
Lucas A. Powe, Jr.: No, no, certainly, I didn't mean to. At page 19--
Antonin Scalia: You are not? [Laughter] Why does that make a difference?
Lucas A. Powe, Jr.: --I think that both the Thirteenth Amendment and the invidious discrimination requirement of the equal protection clause impose limits on government in all contexts.
Byron R. White: You are treating them both the same, you just don't have any duty to either one of them.
Lucas A. Powe, Jr.: If the statement is that a person was... the State used its selective power on the basis of race or on the basis of political belief adversely to the individual, I think those are--
Antonin Scalia: You're out of the substantive due process area?
Lucas A. Powe, Jr.: --Yes, I certainly am. At page 19 of petitioner's reply brief she states that Federal judges will know a dismissible 1983 case when they see one. Well all four Federal judges below voted to dismiss this complaint and that is because for all her artful pleading, all petitioner alleges is a tort.
Byron R. White: Are you defending... are you defending the rationale below?
Lucas A. Powe, Jr.: As I stated, Justice White, I believe that the Fifth Circuit, if they had thought about the case a little more in--
Byron R. White: You would say that abuse of governmental power wouldn't have made any difference?
Lucas A. Powe, Jr.: --I think abuse of governmental power is inherent in the concept of due process of law, and that that... the Fifth Circuit was tagging--
Byron R. White: Give me an example. There isn't any... could there be an abuse of governmental power so-called in a case like this that would make a 1983 action?
Lucas A. Powe, Jr.: --No, under no circumstances.
Byron R. White: Yes. Give me another case where there would be a abuse of power that would make the difference.
Lucas A. Powe, Jr.: I think that if the police got an order to throw the prisoner in my initial hypothetical, an order came from the city, throw the prisoner into the river and kill him.
Byron R. White: Well, that's a custody case.
Lucas A. Powe, Jr.: That is the line that I believe the Constitution--
Byron R. White: But you don't need to talk about abuse of power to get there.
Lucas A. Powe, Jr.: --I believe that abuse of power is inherent... you know, it's part of the custody and it describes when a custodial setting is going to raise to a constitutional violation and when it's not.
William H. Rehnquist: Thank you, Mr. Powe. Mr. Rosen, you have 2 minutes remaining.
Sanford Jay Rosen: Thank you, Your Honor. Respondent has now thrown itself in conflict with every circuit court in the United States with respect to the range of hypotheticals. For example, in McClary, that court in footnote 6 allowed for an intentional injury to the life or security interest. The Ninth Circuit had a case, if I recall, not too long ago in which the police systematically hassled a bar owner. For no particular reason, they didn't like him. That gave rise to a substantive violation of the Constitution. Similarly, the Cornelius case of the Eleventh Circuit in which the town clerk got kidnapped. That gave rise to a substantive security violation. Mr. Justice Thomas, there is one... I beg your pardon.
Byron R. White: Are those cases in conflict with the Fifth Circuit?
Sanford Jay Rosen: I believe so. Mr. Justice Thomas--
Byron R. White: So the Fifth Circuit's put itself in conflict with almost... with every other court of appeals?
Sanford Jay Rosen: --I believe so on this abuse of power concept. Mr. Justice Thomas, there is a case that tracks your hypothetical, Fruit v. Norris cited in the ACLU amicus brief. A prisoner was ordered into a sewer, refused to go. Of course, he was in custody. He wasn't killed. He wasn't whipped. He was disciplined, just as an employee who might have refused to go into the sewer might have been disciplined. We really have seen no analytical difference based upon custody. The real key, Mr. Justice Stevens, is the standard... that is, the finger in the dike.
William H. Rehnquist: Thank you, Mr. Rosen. The case is submitted.