CONSTITUTIONAL LAW-To CHASE OR NOT TO CHASE: WHAT "SHOCKS
THE CONSCIENCE" IN HIGH-SPEED POLICE PURSUITS?-County of Sacramento
v. Lewis, 523 U.S. 833 (1998).
"One morning next spring, the nine justices of the U.S. Supreme Court
will file from behind the velvet curtain and announce their decision in
Lewis v. Sacramento County. There is a virtual statistical certainty that
later the same day, someone in the United States will die in a high speed
vehicularpolicepursuit."1
INTRODUCTION
High-speed police pursuits have become a topic of increasing interest across
the country and throughout the court systems. This may be due in part to the
frequency of these pursuits and the number of resulting injuries. The National
Highway Safety Traffic Administration reports 5,306 deaths over the last sixteen
years caused by high-speed police pursuits. 2 A study by the AAA Foundation
for Traffic Safety in Illinois reports that up to 44% of pursuits caused accidents,
as many as 24% led to injury, and 1-3% resulted in death.3 Experts report as
many as 70% of these chases were initiated by mere traffic violations.4
In many of these chases, the victims killed are not the suispects fleeing the
police, but rather innocent people who are passengers in the speeding car,
drivers of other vehicles on the road, or citizens who are merely in the way. In
one such chase, a sixteen-year-old passenger of a motorcycle pursued by the
police was struck and killed by the police cruiser, which was traveling at speeds
of up to one hundred miles per hour through residential neighborhoods.5 After
the motorcycle tipped, "Philip Lewis [the victim] put his feet down in the middle
of the street and stood up, turned around, and the police car went right through
him. His last words were, 'Oh my God."' 6
In addition to the high-speed police pursuits themselves, the litigation
resulting from these high-speed police pursuits also has created nationwide
1. Michael Avery, Police Chases: More Deadly Than a Speeding Bullet?. TRIAL, Dec. 1997, at 52
(footnotes omitted).
2. See Brief of Amicus Curiae The Association of Trial Lawyers of America in Support of
Respondents at *3 n.2, County of Sacramento v. Lewis, 523 U.S. 833 (1998) (No. 96-1337), available in
1997 WL 610592.
3. Id.
4. See Avery, supra note 1, at 53 (finding 45% to 70% of all police chases were initiated due to
traffic violations). See infra notes 209-11, 244-47 and accompanying text for'a discussion of police
chase statistics.
5. County of Sacramento v. Lewis, 523 U.S. 833, 836-37 (1998).
6. Tim O'Brien & Peter Jennings, World News Tonight: People Hurt In High-Speed Police
Chases: Supreme Court Says They May Not Sue the Police (ABC television broadcast, May 26, 1998),
available in 1998 WL 7292467 (quoting Paul Hedlund, Lewis Family Attorney).
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controversy.7 Victims of the crashes or the families of decedents bring suit under
42 U.S.C. § 1983, claiming violation of substantive due process rights by
government officials. They are usually unsuccessful. 8
Congress enacted the Civil Rights Act, 42 U.S.C. § 1983 ("section 1983"). to
provide a remedy for citizens whose constitutional rights have been violated by
those acting under the cloak of government authority. 9 To sustain an action
under section 1983, a party must show that a person acting under the color of
state law committed an act that deprived a person of a right secured by the
United States Constitution.10 The critical issue in section 1983 claims is what
standard the conduct must violate in order for the actor to be held liable.1 1
In the past, when a plaintiff alleged deprivation of substantive due process,
the standard used depended upon the context in which the conduct occurred. In
the context of police pursuits, the circuits disagreed over the controlling
standard.l2 Many circuits held that conduct which "shocks the conscience" is
necessary to substantiate a claim. 13 The Ninth Circuit held that conduct which
shows "deliberate indifference to. or reckless disregard for," human life is
sufficient. 14
In Colnty of Sacramento v. Lewis,15 the United States Supreme Court
upheld the "shocks the conscience" standard and clarified it by determining that
only a showing of intent to do harm would suffice to substantiate a claim. 16 In
doing so, the Court made an already uphill battle for the victims of reckless
police pursuits even steeper. Although at first glance the reasoning of the Court
7. For examples of reaction to Countty of Sacramento v. Lewis across the United States, see Court
Backs Cops in Chase Cases, SAN ANTONIO EXPRESS-NEws, May 27, 1998, at IA, availablein 1998 WL
5093610 (focusing on San Antonio Police Department's policy on police chases and reaction to Lewis);
Editorial, Dangerous Police Chases, ST. Louts POST, May 29, 1998, at B6, available in 1998 WL
3336895 (concluding Justices' disagreement concerning substantive due process provides hope "for
those who see the Constitution as a broad protection against arbitrary government action"): Linda
Greenhouse, Court Backs Police on High-Speed Chases: Ruling Provides Officers Leeway in Event of
Injuries, Fatalities, AUSTIN-AMERICAN STATESMAN, May 27, 1998, at Al, available in 1998 WL
3611900 (pointing out police would not be found liable in most high-speed chase cases under Lewis
standard); High Coourt Ruling Backs Police in Chase Cases, SEATrLE POST-INTELLIGENCER, May 27,
1998, at Al, available in 1998 WL 4295284 (recording local attorney and organizations' reactions to
Lewis); David Jackson, Justices Prevent Lawsuits in Most High-Speed Chases: Ruling Sets Mark for
Suing Police, THE DALLAS MORNING NEWS, May 27, 1998, at 1A, available in 1998 WL 2539808
(discussing potential effects of Lewis decision in Dallas).
8. See infra note 226 and accompanying text for discussion of cases in which defendants' actions
or plaintiffs' claims did not rise to the level required for substantive due process violations.
9. Collins v. City of Harker Heights, 503 U.S. 115,120 (1992).
10. Id.
11. Id. at 117.
12. See infra note 58 and accompanying text for a discussion of different standards used by the
circuit courts.
13. See infra note 58 and accompanying text for a discussion of the circuit courts that adopted the
"shocks the conscience" standard.
14. Lewis v. Sacramento County, 98 F.3d 434,441 (9th Cir. 1996).
15. 523 U.S. 833 (1998).
16. Lewis, 523 U.S. at 836.
2000] ,
CASE NOTES
415
appears sound, a comparison of police pursuits to seizures through use of deadly
force reveals that pursuits should be analyzed under a Fourth Amendment
"reasonableness" standard. 17 Alternatively, a deeper inquiry into the "reckless
disregard" standard shows that it is a better standard than "shocks the
conscience" because while the former meets the sufficiently high requirements of
"arbitrary action by the government," it also allows vindication and postdeprivation remedies for the victims. The reckless disregard standard would, at
the very least, allow more cases to reach a fact-finder. The fact-finder could then
determine whether the police action was justified during the high-speed chase.
Regardless of the standard chosen, the Lewis decision does highlight this: police
forces should implement more training to enable the officers to decide when to
pursue.
I.
THEFACTSANDPROCEDURALHISTORY OF COUNTYOFSACRAMENTO V.
LEWIS
On May 22, 1990, at 8:30 p.m., Sacramento County Deputy Sheriff James
Smith and Sacramento police officer Murray Stapp returned to their patrol cars
after responding to a routine call. 18 While the officers were preparing to leave,
they saw two boys approaching on a speeding motorcycle.' 9 Officer Stapp
turned on his overhead lights and yelled at the boys to stop.20 Officer Smith saw
the two boys, but he did not hear what Officer Stapp yelled because Smith's
windows were rolled up.21
Neither of the boys on the motorcycle was wearing a helmet. 22 Brian
Willard was driving, and Philip Lewis, age sixteen, was the passenger. 23 Officer
Stapp pulled his car in closer to Officer Smith's in an attempt to prevent the boys
from passing, but Willard maneuvered the motorcycle between the two cars and
drove off. 24 Officer Smith executed a three-point turn and began to pursue at
high speed. 2 5
Officer Smith pursued the boys for seventy-five seconds over 1.3 miles
through a residential neighborhood. 26 The vehicles reached speeds of up to one
hundred miles per hour as they raced through four stop lights, around three
ninety-degree left turns, and into oncoming traffic. 27 The pursuit forced two cars
17. See Avery, supra note 1, for a discussion of police pursuits as similar to use of deadly force
and for arguments consistent with those presented in this Note.
18. Id.; Lewis, 98 F.3d at 436.
19. Lewis, 523 U.S. at 836.
20. Id.
21. Lewis. 98 F.3d at 436.
22. Id.
23. Lewis. 523 U.S. at 836.
24. Id. at 836-37.
25. Lewis, 98 F.3d at 436.
26. Id.
27. Id; Lewis. 523 U.S. at 837.
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off the road. 28 Officer Smith followed the motorcycle at distances as close as one
hundred feet,29 even though his car would have required 650 feet to stop at the
speed it was traveling. 3 0
The chase ended when the motorcycle reached a crest in the road, and
Willard attempted a sharp left turn.3 1 He failed, and the motorcycle skidded to a
halt.3 2 Officer Smith tried to stop his car but could not do so.33 Smith
unsuccessfully slammed on his brakes, skidding 147 feet into Philip Lewis at
approximately forty miles per hour.3 4 Willard survived with minor injuries, but
Lewis's body was thrown seventy feet down the road.35 Lewis suffered major
injuries, including massive internal injury and a fractured skull, and was
pronounced dead at the scene. 36
Philip Lewis's estate and his parents, Teri and Thomas Lewis, filed suit in
Sacramento County Superior Court against Sacramento County, the Sheriff's
Department, and Officer Smith pursuant to 42 U.S.C. § 1983.37 The suit alleged
that Officer Smith deprived Philip Lewis of his Fourteenth Amendment
substantive due process right to life. 38 Plaintiffs also filed a wrongful death suit
under California state law.3 9 Defendants removed the case to federal court
based on federal question jurisdiction and moved for summary judgment. 4 0
The United States District Court for the Eastern District of California
granted summary judgment in favor of all defendants on the section 1983 claims
and in favor of Smith on all the state causes of action. 4 1 The court decided that
even if Officer Smith violated the Constitution, he was entitled to qualified
immunity because plaintiffs were unable to support their claim of a Fourteenth
Amendment substantive due process right during a high-speed police chase. 42
28. Lewis, 523 U.S. at 837.
29. Id.
30. Id.
31. Lewis, 98 F.3d at 437.
32. Id.
33. Id.
34. Id.
35. Id.
36. Lewis, 98 F.3d at 437.
37. Id.
38. Id.
39. Id.
40. Id.
41. Lewis, 523 U.S. at 837-38 &n.1-2. See infra note 42 and accompanying text for a discussion
of how the district court disposed of all claims.
42. Lewis, 523 U.S. at 837-38. The district court decided this case on four grounds. First, even
though Smith had violated Lewis's constitutional rights, Smith's qualified immunity shielded him from
liability because plaintiffs could not find any "state or federal opinion published before May, 1990.
when the alleged conduct took place, that supports [their] view that [the decedent had] a Fourteenth
Amendment substantive due process right in the context of high[-]speed police pursuits." Lewis, 98
F.3d at 437. Absent a substantive due process right that existed during that high-speed police pursuit,
Lewis had no clearly established "right to life and personal security." Id. Without a right to life
established-even though the district court assumed Smith violated the Constitution-Smith received
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CASE NOTES
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By not establishing this right, plaintiffs did not establish Lewis's right to life and
personal security. 4 3 Accordingly, the district court found that Officer Smith was
entitled to qualified immunity.44
The United States Court of Appeals for the Ninth Circuit reversed,
concluding "the law regarding police liability for death or injury caused by an
officer during the course of a high-speed chase was clearly established" at the
time of the pursuit. 45 In so concluding, the court held that "the appropriate
degree of fault to be applied to high-speed police pursuits is deliberate
indifference to, or reckless disregard for, a person's right to life and personal
security." 4 6 The court determined that if the conduct was found to have risen to
this due process standard, Officer Smith, acting under color of state law,
deprived Lewis of a federally protected right and could be held liable under
section 1983.47 The United States Supreme Court granted certiorari to resolve
the conflict among the circuits regarding the standard of culpability applicable
when a law enforcement officer is accused of violating substantive due process in
a high-speed police pursuit.4 8
qualified immunity. Id. Second, the district court also granted summary judgment for county and
sheriffs department on the claim that both the county and the sheriff's department failed to
adequately train the officers in how to pursue at high speed. Id. The court determined that, in light of
Officer Smith's previous high-speed chase experience, the training was "not so inherently inadequate"
as to warrant liability under section 1983. Id. Next, the district court determined that the pursuit
policy of the sheriff's department's did not reflect deliberate indifference to Lewis's life; it thus
granted summary judgment in favor of defendants on thisclaim as well. Id. Finally, the district court
found Smith immune on all state claims as well, citing the California Vehicle Code § 17004, which
provides"[a] public employee is not liable for civil damages on account of personal injury to or death
of any person or damage to property ... in the line of duty ... when in the immediate pursuit of an
actual or suspected violator of the law." Lewis. 523 U.S. at 837 n.1 (quoting CAL. VEH. CODE § 17004
(West 1971)). Thus, the only redress for these claims would have been in federal court under section
1983.
43. Lewis, 98 F.3d at 437.
44. Id.
45. Id. at 445.
46. Id. at 441. "We do not here decide whether deliberate indifference or reckless disregard is
the minimum standard for all substantive due process violations: we decide only that this standard of
conduct is the minimum required to sustain a section 1983 claim in the context of a high-speed police
pursuit." Id. In so holding, the Ninth Circuit noted that plaintiff's allegation that the officers violated
the Sacramento County Sheriff's Department General Orders was "relevant to determine whether a
substantive due process violation has occurred." Id. at 442. The court also stated that when taking the
facts in light most favorable to plaintiffs, "there existed an unreasonable hazard" to the lives of Lewis
and Willard. Id. Additionally, the court pointed out that Officer Smith did not suspect either Lewis or
Willard of committing any crime when he instigated the chase; there were only traffic violations that
occurred during the chase. Id. "The record does not indicate that Lewis or Willard would have posed
a risk to public safety had they gotten away. Nor is there any evidence indicating that the boys would
have been driving recklessly had they not been pursued by Lewis." Id.
47. Id. at 441-42. The court also reversed the district court's decision regarding Smith's qualified
immunity, determining that if an officer's conduct is sufficiently egregious, and if a reasonable officer
would have been aware that his conduct was sufficiently egregious given the context of the chase, there
is no qualified immunity. Id. at 443-45.
48. Lewis, 523 U.S. at 839.
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II.
A.
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PRIOR LAW
Section 1983
The Civil Rights Act, codified at 42 U.S.C. § 1983, provides a cause of
action for people deprived of their civil rights. 49 In order to sustain an action
pursuant to section 1983, a party must show that (1) a person acting under the
color of state law committed the conduct complained of: and (2) the conduct
deprived someone of a right secured by the Constitution or federal law. 50
Although section 1983 provides a "method for vindicating federal rights"
that have been taken from a citizen by someone acting under government power,
it does not confer additional substantive rights.51 The United States Supreme
Court and the circuit courts consistently have held that Congress did not intend
section 1983 to be a "font of tort law" used at the federal level, but rather
intended it to protect individuals from the arbitrary exercise of the powers of the
government. 5 2
When asserting a section 1983 claim, the plaintiff must allege that the actor
deprived the plaintiff or the plaintiff's decedent of a particular and specific right
conferred to him by the Constitution. Although the statute does not contain a
state-of-mind requirement, the critical issue in section 1983 claims is what
standard the conduct must violate in order for the actor to be held liable. 5 3 The
standard implicated in a particular section 1983 action depends on the right that
the plaintiff alleges the actor to have violated.
One way a plaintiff can sue under section 1983 is to assert that a
government actor violated plaintiff's Fourteenth Amendment right to
substantive due process. The Fourteenth Amendment provides that -[n]o State
49. 42 U.S.C. § 1983 (1994) provides that:
Every person who, under color of any statute. .. of any state ... subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law ....
50. Collins v. City of Harker Heights, 503 U.S. 115,120 (1992).
51. Roach v. City of Fredericktown, 882 F.2d 294,297 (8th Cir. 1989).
52. See, for example, Lewis, which states:
[W]e explained that the Fourteenth Amendment is not a "font of tort law to be
superimposed upon whatever systems may already be administered by the States," and ...
that "[o]ur [C]onstitution deals with the large concerns of the governors and the governed
but it does not purport to supplant traditional tort law in laying down rules of conduct to
regulate liability for injuries that attend living together in society."
Lewis, 523 U.S. at 848 (citations omitted). See also Daniels v. Williams, 474 U.S. 327, 328 (1986)
(concluding negligence and resulting liability therefrom is categorically below threshold required for
constitutional due process); Medina v. City &County of Denver, 960 F.2d 1493, 1495 (10th Cir. 1992)
(stating "section 1983 must not be used to duplicate state tort law on the federal level," and "the
Fourteenth Amendment is not 'a font of tort law to be superimposed upon whatever systems may
already be administered by the state"' (citations omitted)).
53. Collins, 503 U.S. at 117. See also Daniels, 474 U.S. at 329-30 (adhering to decision that statute
does not contain state of mind requirement, but concluding plaintiff must prove violation of
constitutional right by some standard that depends on that right).
2000]
CASE NOTES
419
shall ... deprive any person of life, liberty, or property, without due process of
law." 5 4 To state a claim under section 1983 via the Fourteenth Amendment, the
plaintiff must allege that a government official deprived him of his right to life,
liberty, or property through the absence of substantive due process. 5 5 At the
core of this due process notion is the idea of protection against arbitrary action
from the government. 56 The type of action that violates due process, however,
varies greatly depending on the context of the litigation and each particular
court. 5 7 In the cases involving police pursuits that led up to the Supreme Court's
determination of the standard in Lewis, various courts unsuccessfully attempted
to define a clear standard. 5 8 An examination of the case law that led to Lewis
demonstrates that the courts struggled to find a bright-line answer.
B. The Development of the Section 1983 Standardin the Context of Police
Pursuits
Before the decision of the United States Supreme Court in Lewis, courts
faced with a section 1983 claim in the context of police pursuits first needed to
54. U.S. CONST. amend. XIV, § 1.
55. See, e.g., Lewis, 523 U.S. at 840 (stating substantive due process claim, if substantiated, would
be tantamount to claim that officer's actions in causing plaintiff's death were "abuse of executive
power so clearly unjustified by any legitimate objective of law enforcement as to be barred by the
Fourteenth Amendment").
56. Id. at 845: Daniels,474 U.S. at 331; Temkin v. Frederick County Comm'rs., 945 F.2d 716,720
(4th Cir. 1991).
57. See Lewis, 523 U.S. at 851 (distinguishing police pursuit contexts from prison riots or
situations of detention). See also City of Canton v. Harris, 489 U.S. 378, 388-89 (1989) (holding
deliberate indifference as sufficient standard of culpability to sustain claim of municipal liability for
failure to properly train employee); Youngberg v. Romeo, 457 U.S. 307, 319-25 (1982) (holding
severely retarded individual may bring section 1983 action against mental hospital personnel who
failed to exercise professional judgment); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding prison
officials are liable if their actions are deliberately indifferent under Eighth Amendment); Archie v.
City of Racine, 847 F.2d 1211, 1219 (7th Cir. 1988) (holding recklessness is standard when fire
department failed to provide adequate services andvictim died as result).
l
58. See e.g., Evans v. Avery, 100 F.3d 1033, 1036 (Ist Cir. 1996) (rejecting "deliberate
indifference" standard and adopting "shocks the conscience" in the context of police chase); Williams
v. City &County of Denver, 99 F.3d 1009. 1015 (10th Cir. 1996) (recognizing "reckless indifference"
standard but defining it in terms of "shocks the conscience"); Fagan v. City of Vineland. 22 F.3d 1296,
1303 (3d Cir. 1994) (overruling "reckless indifference" and adopting "shocks the conscience" in
context of police pursuit); Medina v. City &County of Denver, 960 F.2d 1493, 1496-97 (10th Cir. 1992)
(holding "reckless indifference" standard applies in police pursuits, but finding for defendants because
recklessness standard not met), overruled by Williams v. City & County of Denver, 99 F.3d 1009 (10th
Cir. 1996); Lewis v. County of Sacramento, 98 F.3d 434, 441 (9th Cir. 1996) (adopting "deliberate
indifference" and "reckless disregard" standard rather than "shocks the conscience" for police
pursuits), overruled by 523 U.S. 833 (1998); Temkin v. Frederick County Comm'rs., 945 F.2d 716, 719
(4th Cir. 1991) (holding "shocks the conscience" to be proper standard in police pursuits); Roach v.
City of Fredericktown, 882 F.2d 294, 297 (8th Cir. 1989) (holding gross negligence insufficient to
substantiate due process violation, but not stating what proper standard should be); Jones v. Sherrill,
827 F.2d 1102, 1106-07 (6th Cir. 1987) (holding gross negligence or outrageous conduct sufficient in
certain police pursuit situations); Checki v. Webb, 785 F.2d 534.538 (5th Cir. 1986) (holding standard
requires showing chasing police officer intentionally misused his vehicle in a manner that "shocks the
conscience") .
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determine the legal standard by which officers' conduct should be measured.5 9
To do so, the courts imported a standard developed in the context of prisoners'
rights.
In Daniels v. Williams,60 decided by the United States Supreme Court, a
prisoner slipped on a pillow negligently left on a stairway and claimed that the
deputy sheriff who left the pillow on the stairs had violated his liberty interest to
be free from bodily injury.61 The prisoner argued that because sovereign
immunity deprived him of an adequate remedy in a state tort suit, this
deprivation of his liberty occurred "without due process of law."62
The Court in Daniels determined that although section 1983 has no state-ofmind requirement, mere negligence is not sufficient to substantiate a violation of
a constitutional right in most contexts. 63 The Court reasoned that l[h]istorically,
[the] guarantee of due process has been applied to deliberate decisions of
government officials to deprive a person of life, liberty, or property." 6 4 Because
this element of deliberate decision-making is superimposed on a due process
violation, the Court determined that lack of due care, or mere negligence, is far
from an executive abuse of power.6 5 Moreover, the Court reasoned that holding
officials liable would trivialize the meaning of due process.6 6
In finding that mere negligence was not enough to substantiate a due
process violation claim, the Court declined to determine the type of conduct that
meets the standard for a constitutional deprivation, leaving this determination
for later courts.6 7 Subsequent courts turned to Daniels for guidance and
consistently held that mere negligence is not enough to substantiate a due
process violation claim, but that intentional misuse of power would be
59. Evans, 100 F.3d at 1036.
60. 474 U.S. 327 (1986).
61. Williams, 474 U.S. at 328.
62. Id.
63. Id. at 330.
64. Id. at 331.
65. Williams, 474 U.S. at 332.
66. Id. at 332. The Court analyzed the mistakenly left pillow as merely a "lack of due care
[suggesting] no more than a failure to measure up to the conduct of a reasonable person." Id. The
Court cautioned that when deciding whether this type of document-a foundational bedrock-was
meant to cover such acts, that "'we must never forget, it is a constitltion we are expounding."' Id.
(quoting McCulloch v. Maryland, 17 U.S. 316,407 (1819)). The Court continued by stating that "[o]ur
Constitution deals with the large concerns of the governors and the governed, but it does not purport
to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that
attend living together in society." Id. The Court traditionally has seen due process law as residing on
a plane above traditional tort law, and refuses to "lower" the Constitution to such a level that would
allow people to sue under it for negligently-caused injuries. See, e.g., Parratt v. Taylor, 451 U.S. 527,
544 (1981) (finding allowing respondent's claim of negligence to constitute violation of Fourteenth
Amendment would "necessarily result in turning every alleged injury which may have been inflicted
by a state official acting under 'color of law' into a violation of Fourteenth Amendment cognizable
under [section] 1983"); Paul v. Davis, 424 U.S. 693, 701 (1976) (rejecting belief that Fourteenth
Amendment extends right "to be free of injury where State may be characterized as the tortfeasor"
because that would have turned Fourteenth Amendment into "font of tort law").
67. Williams, 474 U.S. at 334.
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CASE NOTES
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sufficient. 68 Trouble arose when the conduct at issue reflected more mental
culpability than mere negligence, but was less than intentional. The various
circuit courts considering the issue reached different conclusions regarding such
conduct.
In one of the earlier cases6 9 addressing this issue, Landol-Rivera v. Cruz
Cosme,7 0 the First Circuit held that if the conduct of government officials
"reflect[s] a reckless or callous indifference to an individual's rights," the officials
may be held liable for a substantive due process violation, but that the "mere
presence of risk" to individuals does not reflect a callous indifference. 7 1 In
Landol-Rivera, police officers shot the plaintiff, who was the victim of a robbery,
when shooting at the robber who attempted to flee.72 Alleging various
constitutional violations, the plaintiff sued the officers under section 1983.73 The
court assumed that the claim that the officer used excessive force could be
analyzed under substantive due process, even though the plaintiff originally had
claimed a Fourth Amendment violation.7 4 The Landol-Rivera court found,
however, that because the officer, at most, had acted negligently, the conduct
was insufficient to substantiate a due process claim.75 The court determined that
the evidence that the plaintiff had presented regarding the actions of the officers
did not establish a reckless indifference to his constitutional rights. 76
In 1991, the Fourth Circuit addressed the same issue raised in LandolRivera, but the court fashioned a more heightened standard than that of the
previous courts.7 7 In Temkin v. Frederick County Commissioners,7 8 the police
were pursuing a fleeing suspect when his vehicle struck the plaintiff's car. 9 The
plaintiff was severely injured and brought an action against the officers pursuant
68. See, e.g., Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986) (deciding section 1983 claim was
actionable when police intentionally abused its power by pistol-whipping a civilian after pulling him
over). See also Roach v. City of Fredericktown. 882 F.2d 294, 297 (8th Cir. 1989) (stating gross
negligence is insufficient to substantiate due process claim, but not stating what standard should be
applied).
69. In two even earlier cases, Jones v. Sherrill, 827 F.2d 1102 (6th Cir. 1987), and Roach v. City of
Fredericktown, 882 F.2d 294 (8th Cir. 1989), the Sixth and Eighth Circuits, respectively, each faced the
issue, but did not set a dispositive standard. The Jones court determined that the conduct alleged in
the police pursuit did not rise to the level of gross negligence that was required under section 1983,
and indicated that only gross negligence would be sufficiently outrageous to state a claim. Jones, 827
F.2d at 1106. Similarly, the Roach court determined that because the conduct in the police pursuit did
not reach the level of gross negligence, it certainly did not meet the standard necessary to substantiate
a claim, although it did not indicate what that standard would be. Roach, 882 F.2d at 297.
70. 906 F.2d 791 (1st Cir. 1990).
71. Landol-Rivera, 906 F.2d at 796-97.
72. Id. at 792.
73. Id.
74. Id. at 796.
75. Id. at 797.
76. Landol-Rivera,906 F.2d at 798.
77. See, e.g., id. at 797 (deciding actions must reflect reckless indifference to life).
78. 945 F.2d 716 (4th Cir. 1991).
79. Temkin, 945 F.2d at 717.
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to section 1983.80
The court, attempting to fashion a standard consistent with Daniels, stated
that "some abuses of governmental power may be so egregious or outrageous
that no state post-deprivation remedy can adequately serve to preserve a
person's constitutional guarantees of freedom from such conduct."81 Thus, the
court held that only conduct which "shocks the conscience" or is a "brutal and
inhumane abuse of official power literally shocking to the conscience" is
sufficient to substantiate a due process claim. 82 The court determined that
adopting the "shocks the conscience" standard was not inconsistent with the
holding of Daniels,8 3 and that this standard was more appropriate than the
standard of "deliberate indifference" applied by many sister circuits. 8 4 In
applying the "shocks the conscience" standard to the facts, the Temkin court
decided there was not sufficiently egregious conduct in that case to shock the
conscience of the court, thereby affirming the lower court's grant of summary
judgment.8 5
In 1992, the United States Supreme Court revisited the issue of the standard
necessary to state a cause of action under section 1983 for alleged violation of
substantive due process rights, albeit not in a police pursuit context, in Collins v.
City of Harker Heights.86 In Collins, a city sanitation employee died of
asphyxiation after entering a manhole to unstop a sewer. 87 His widow sued the
city of Harker Heights under section 1983, claiming that the death of her
husband was the result of the city's deliberate indifference 88 to his substantive
right to life 89 and alleging that he "had a constitutional right to be free from
unreasonable risks of harm to his body."9 0
In determining that the widow's complaint did not properly charge the city
with a violation of her husband's constitutional rights, the Court re-characterized
her claim to include the element of deliberate indifference that is arbitrary
80. Id.
81. Id. at 720.
82. Id. (quoting Rochin v. California, 342 U.S. 165,172 (1952), and Hall v.Tawney, 621 F.2d 607,
613 (4th Cir. 1980)). See Rochin v. California, 342 U.S. 165, 172 (1952) (developing "shocks the
conscience" standard). See also infra note 218 and accompanying text for discussion of Rochzin.
83. See Daniels v. Williams, 474 U.S. 327, 330 (1986) (holding mere negligence is insufficient to
substantiate due process claim but leaving question open whether anything short of intentional
conduct is enough).
84. Temkin, 945 F.2d at 722-23.
85. Id. at 724-25. See infra notes 222-227 and accompanying text for a discussion of Temkin and
other behavior not sufficiently egregious to shock the conscience.
86. 503 U.S. 115 (1992). Although this case is not directly on point because it falls outside of the
police pursuit realm, it is the last time before Lewis that the Supreme Court commented on a standard
for section 1983 and becomes relevant in its reasoning in Lewvis.
87. Collins, 503 U.S. at 117.
88. Id.
89. See id. at 125-26 (finding widow makes general allegation that city deprived her husband of
"life and liberty by failing to provide a reasonably safe work environment").
90. Id. at 126 n.9 (quoting appellant's brief).
2000]
CASE NOTES
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enough to "shock the conscience." 9 1 In so doing, the Court expanded the
standard by requiring an element of "shocking the conscience;" it expressly did
not want the Due Process Clause to be equivalent to a state tort law system.9 2
Because of the vagueness implicit in the "shocks the conscience" standard
established by the decision of the Court in Collins, the circuits struggled to
sharpen the standard in subsequent decisions.
In the same year as Collins, the Tenth Circuit tried its hand at the section
1983 standard-setting game. In Medina v. City & County of Denver,9 3 a
suspected felon struck a cyclist during a high-speed police pursuit. 94 The injured
cyclist brought suit against the officers, the city, and the county under section
1983.95 The court affirmed summary judgment for the officers based on qualified
immunity; it also affirmed summary judgment in favor of the city and county
because plaintiff failed to produce evidence that the city authorized the officers
to engage in reckless or deliberately indifferent high-speed chases. 9 6
In discussing the officers' potential liability, the court stated "[p]ractically
every court ... has concluded that reckless intent may violate section 1983," but
that the reckless conduct must be directed toward the plaintiff. 9 7 The court
further explained: this recklessness requirement does not mean that the actor
must have intended to harm, but rather he must have acted in the face of a
known or obvious risk such that it was "highly probable" that serious harm
would result, but he proceeded and disregarded the probable consequences. 9 8
Although the court ultimately used qualified immunity to dispose of the suit, its
dicta affirms that the Tenth Circuit joined in the "deliberate indifference" camp
on the issue of the standard required for section 1983 substantive due process
violations in the context of high-speed police pursuits.9 9
91. Id. at 126 (stating one theory of plaintiffs complaint is "that city's 'deliberate indifference' to
Collins's safety was arbitrary government action that must 'shock the conscience' of federal judges").
See infra note 218 and accompanying text for a discussion of the development of "shocks the
conscience" standard in Rochin.
92. See Collins, 503 U.S. at 125-29 (discussing petitioner's claim in comparison to text and history
of Due Process Clause).
93. 960 F.2d 1493 (10th Cir. 1992).
94. Medina, 960 F.2d at 1494.
95. Id.
96. Id.
97. Id. at 1496.
98. Id.
99. In a later case, Williams v. City & County of Denver, 99 F.3d 1009 (10th Cir. 1996), the Tenth
Circuit clarified that it understood the standard to have been raised by the Collins decision subsequent
to Medina. See Williams, 99 F.3d at 1015 (stating Medina and Collins were almost decided
simultaneously and Medina did not discuss Collins). It did not, however, raise the level to the height
required by Lewvis. The court stated that Collins required both (1) reckless intent and (2) conscienceshocking conduct to substantiate a due process violation. Id. The court does not, however, define
conscience-shocking as an "intent to do harm," but rather indicates that whether the conduct shocks
the conscience relates heavily to the justification for the action. See id. at 1016:(finding courts, when
determining if actions were conscience shocking, must examine circumstances of each case and weigh
risk of harm against justification for creating that risk). See infra notes 100-03 and accompanying text
for E'discussion of Williams.
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The Tenth Circuit adherence to the deliberate indifference standard,
however, came to a halt in 1996, when it decided Williams v. City & County of
Denver.100 The court relied on the Supreme Court's language in Collins when it
concluded that "a substantive due process violation requires (1) that the
defendant act with reckless intent, and (2) that the defendant's conduct shock
the conscience." 1 01 Even though the Tenth Circuit moved towards the "shocks
the conscience" end of the spectrum with the Williams decision, it did so with
moderation in that its conclusion included an element of reckless intent. The
court also displayed moderation by finding the officer's actions had shocked the
conscience of the court through reckless conduct during the high-speed police
pursuit.' 0 2 Additionally, the court declared deliberate indifference sufficient to
substantiate a "failure to train" claim.10 3
The struggle continued with the next major decision by a circuit court-the
Third Circuit's determination in Fagan v. City of Vineland.104 In Fagan, three
people were killed as a result of a police pursuit.' 05 Two of the deceased were
innocent drivers not connected to the pursuit.' 0 6 New Jersey recently had
implemented a new policy regarding police pursuits that indicated police should
make reasonable and responsible efforts to prevent a suspect from fleeing, but
that the chase should be "tempered with common sense." 10° The new policy also
set guidelines containing factors to consider in deliberating whether or not to
chase. 10 8
100. 99 F.3d 1009 (10th Cir. 1996), vacated, Mar. 3, 1997.
101. Williams, 99 F.3d at 1015.
102. Id. at 1017. See infra notes 218-30 and accompanying text for discussion of judicial hostility
to the shocks-the-conscience standard.
103. Williams, 99 F.3d at 1018.
104. 22 F.3d 1296 (3d Cir. 1994).
105. Fagan,22 F.3d at 1300.
106. Id.
107. Id. at 1300 n.1 (presenting New Jersey's statewide guidelines on high-speed motor vehicle
pursuits).
108. Id. The relevant portion of the statewide New Jersey guidelines for when to pursue state:
A. When to pursue
Generally, police officers shall make every responsible effort to apprehend a fleeing vehicle.
Therefore, a pursuit may be initiated whenever a law violator refuses to stop and uses his
vehicle to flee. The pursuit should always be tempered with common sense and the officer
should be aware of the degree of hazard to which he exposes himself and others. The
decision to conduct such a pursuit should depend on the seriousness of the threat that the
violator presents to other persons or to society in general; hence the objective of the pursuit
must be to apprehend a violator, and the purpose of the apprehension must be to bring the
perpetrator to trial ....
A police officer, prior to initiating a pursuit involving excessive emergency speed and
emergency driving tactics or techniques, should consider the following:
1. The nature of the violation.
2. The likelihood of successful apprehension.
3. The hazard created by the high speed pursuit.
4. The volume, type, speed, and direction of traffic.
5. The nature of the area, whether residential, commercial, school zone, open highway, ect.
,2000]
CASE NOTES
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Plaintiffs filed a section 1983 action alleging violation of substantive due
process rights. 109 The district c 6 urt granted summary judgment for all named
defendants.110 On appeal, a panel for the Third Circuit held that the applicable
standard for Fourteenth Amendment substantive due process claims is reckless
or callous indifference and that the district court had erred in granting summary
judgment based on a "shocks the conscience" standard.11' The Third Circuit
then granted a rehearing en banc, limiting consideration to the issue of the
standard applicable to the plaintiff's claims of a police pursuit violating
substantive due process. 112 The en banc panel vacated the original panel's
decision and determined that the proper standard was "shocks the
conscience."113
Noting that the case law up until this time was unclear as to the standard,
the en banc panel relied primarily on the Supreme Court's determination in
Collins14 and applied the "shocks the conscience" standard to the plaintiffs'
claims of due process violations in the context of police pursuits.115 In a
passionate and powerful dissent eight pages longer than the majority opinion,
Judge Cowen and three others vociferously disagreed with the "shocks the
conscience" standard. 116 Judge Cowen argued that the appropriate standard for
this context is reckless indifference. 117 Judge Cowen reasoned that the majority
failed "to explain why the utterly reckless indifference to the safety of the public
exhibited by the police officers in conducting the high-speed car chase ... does
6.
7.
8.
9.
The population density.
Familiarity with the roads.
The weather and road conditions....
The officer's driving skills and condition of the police vehicle.
B. Nature of Pursuits
1...
2.... The responsible discretion of the police officer is relied on very heavily to justify his
decision to pursue or not to pursue.
3. ... [T]he need to apprehend is paramount but must be weighed against the dangers
involved to other highway users, pedestrians, the officer in pursuit, and the suspect.
Id.
109. Id.
110. Fagan,22 F.3d at 1301.
111. Id. at 1302. The Third Circuit originally held that the city of Vinelandtmay be liable, even if
the individual police officers were not. Id.
112. Id.
113. Id. at 1303.
114. See supra notes 86-92 and accompanying text for a discussion of Collins.
115. See Fagan, 22 F.3d at 1303 (concluding "substantive component of the Due Process Clause
can only be violated by governmental employees when their conduct amounts to an abuse of official
power that 'shocks the conscience"'); id. at 1306-07 (deciding, in light of Collins, reckless indifference
is insufficient standard upon which to ground government employee's liability for police pursuit under
Due Process Clause).
116. Id. at 1309 (Cowen J., dissenting).
117. Id. (Cowen, J., dissenting). The minority wrote that although conscience-shocking behavior
would be sufficient to satisfy any constitutional standard where there has been a deprivation, it is not
necessary because "reckless indifference" is also sufficient. Id. (Cowen, J., dissenting).
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not suffice to constitute a deprivation in the constitutional sense." 118 Judge
Cowen also charged that the majority misread Collins, claiming that the
adherence to the "shocks the conscience" standard could not be based on that
opinion.119
As powerful as the Fagan dissent was, it did not persuade sister circuits that
subsequently addressed the issue. In 1996, the First Circuit once again faced the
question of what standard is necessary to substantiate a substantive due process
violation claim under section 1983. In Evans v. Avery, 120 a fleeing suspect struck
and injured a young pedestrian while being pursued by the police.121 Plaintiff
brought a civil action against the city of Boston and its police officers for these
events that occurred in a heavily trafficked area known to be a busy shopping
venue. 122 The court held that deliberate indifference to a victim's rights alone is
not sufficient to support a substantive due process claim in the context of police
pursuits.' 2 3 Rather, the conduct must shock the conscience. 124 The court
reasoned that although police chases are inherently hazardous, they are a
"necessary concomitant of maintaining order in our modern society."''2 5 Also,
because officers must make decisions under pressure when balancing law
enforcement against the risk to public safety. the court hesitated to make due
process a isurrogate for state tort law" that would "hamstring the police in their
performance of vital duties." 12 6
The development of the section 1983 standard for substantive due process
violations in the context of police pursuits hedged slowly throughout the circuits
towards the "shocks the conscience" standard. Some earlier circuit decisions,
however, had held less stringent standards to be appropriate. 12 7 Throughout the
development of these standards for due process violation claims, the courts
distinguished police pursuit contexts from other contexts. This distinction is
necessary because the standard used to evaluate the claim depends upon which
amendment has been violated-and depends upon the circumstances in which
the violation occurred.' 2 8 In some police pursuit cases, plaintiffs attempted to
118. Id. (Cowen, J., dissenting).
119. Id. (Cowen, J., dissenting).
120. 100 F.3d 1033 (Ist Cir. 1996).
121. Evans, 100 F.3d at 1035.
122. Id.
123. Id. at 1038.
124. Id.
125. Id.
126. Evans, 100 F.3d at 1038.
127. See supra notes 69-76. 93-99 and accompanying text for a discussion of circuit court
decisions that had held standards not higher than deliberate indifference.
128. See County of Sacramento v. Lewis, 523 U.S. 833, 843-44 (1998) (discussing Fourth
Amendment and standards for searches and seizures); id. at 848-50 (discussing Fourteenth
Amendment and standard of conscience shocking conduct): id. at 850 ("Rules of due process are
not... subject to mechanical application .... fWhat] shocks in one environment may not be so
patently egregious in another, and our concern with preserving the constitutional proportions of
substantive due process demands an exact analysis of circumstances"). The courts apply different
standards to different contexts, and to each constitutional amendment. For example, in the context of
2000]
CASE NOTES
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argue the crash by the police cruiser that ultimately killed the victim is
tantamount to a "seizure." 129 If classified as such, the claim then would be
analyzed under the Fourth Amendment and a "reasonableness" standard. 130
The courts thus far have declined to qualify an apprehension of a suspect via an
accident resulting from a high-speed police pursuit as a seizure. 131 The courts
also have refused to qualify the accident involving an innocent bystander as a
Fourth Amendment "seizure" because the chase was not aimed at that person. 13 2
The Court, however, has qualified the use of deadly force in apprehension of a
suspect as a seizure in other contexts. One such case in which the United States
Supreme Court considered the use of deadly force a "seizure" to be analyzed
under the rubric of the Fourth Amendment was Tennessee v. Garner.133
C.
Tennessee v. Garner and the Use of Deadly Force
In Garner, a father brought an action for wrongful death under section 1983
against the officers who shot and killed his fifteen-year-old son. 13 4 The young.
unarmed suspect was fleeing from a burglary scene after stealing ten dollars and
a purse. 13 5 The officer who shot Garner testified that he had not seen a weapon
and, although uncertain, was "'reasonably sure' and 'figured' that Garner was
unarmed."' 3 6 Because the officer was convinced that Garner would have
a prisoner rights case, a Fourteenth Amendment violation requires proof of only deliberate
indifference. DeShaney v. Winnebago County Dept. of Social Serv., 489 U.S. 189, 200 (1989). In
Fourth Amendment cases, the standard used to evaluate the claim is one of reasonableness.
Tennessee v. Gamer, 471 U.S. 1,7 (1985).
129. See, e.g., Lewvis, 523 U.S. at 842-44 (stating no Fourth Amendment seizure exists within
context of police pursuit, nor is failed attempt at seizure analyzed under Fourth Amendment); Evans
v. Avery, 100 F.3d 1033, 1036 (1st Cir. 1996) (stating because "mishap involved neither physical
contact with a police officer nor police action directed at [the victim]," crash into victim was not
seizure which violated Fourth Amendment rights); Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 792
(lst Cir. 1990) (holding no Fourth Amendment seizure occurred when hostage was inadvertently shot
by police).
130. See Garner, 471 U.S. at 7 (finding analysis of seizure is subject to reasonableness
requirement of Fourth Amendment). The Supreme Court has mandated that when a claim is covered
by a specific constitutional provision, for example the Fourth Amendment, the court must analyze the
claim under that specific amendment's standard, rather than under the standard required for the
Fourteenth Amendment's substantive due process. United States v. Lanier, 520 U.S. 259, 272 n.7
(1997) (explaining Graham v. Connor, 490 U.S. 386, 395 (1989)). See also Lewis, 523 U.S. at 842-43
(discussing same). Because of this mandate, if a court classified a pursuit as a "seizure," a plaintiff
would have a more fair chance at recovery because the "reasonableness" standard is generally easier
to reach than the loftier "shocks the conscience" standard. See infra Part IV.A for a discussion of the
loftiness of the "shocks the conscience" standard and how plaintiffs seldom will meet this standard.
131. See infra note 150 and accompanying text for a discussion of where the courts have declined
to classify police chases resulting in apprehension of suspect as a "seizure" to be analyzed under the
Fourth Amendment.
,.
132. See supra note 129 and accompanying text for a discussion of cases where the courts have
declined to classify the death of a victim as a "seizure" to be analyzed under the Fourth Amendment.
133. 471 U.S. 1 (1985).
134. Garner,471 U.S. at 4-5.
135. Id. at 3-4.
136. Id. at3.
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escaped, the officer shot Garner in the back of the head; Garner died from the
wound at the hospital. 13 7
The district court held for defendants, and, on appeal, the Sixth Circuit
reversed and remanded. 1 3 8 On appeal to the United States Supreme Court, the
police relied upon a Tennessee statute providing that an "'officer may use all the
necessary means to effect the arrest"' if the suspect flees. 139 The Court held the
statute unconstitutional because it authorized officers to use deadly force against
unarmed, non-dangerous fleeing suspects.14 0 The Court declared that deadly
force "may not be used unless it is necessary to prevent escape and the officer
has probable cause to believe the suspect poses a significant threat [to the safety]
of the officer or others." 141
The Court analyzed the issue under the Fourth Amendment, finding the
shooting of the individual tantamount to a "seizure." 142 The Court defined a
'4seizure" as a situation in which an officer restrains a person from walking
away. 143 Under this definition, apprehension by the use of deadly force is a
seizure that is subject to the reasonableness requirement of the Fourth
Amendment. 144 Applying a balancing test between the interests of law
enforcement and the intrusiveness of a seizure,14 5 the Court decided that the
facts did not justify the force used.14 6 It declared "[t]he use of deadly force to
prevent the escape of all felony suspects, whatever the circumstances, is
constitutionally unreasonable. It is not better that all felony suspects die than
they escape." 14 7 Additionally, the Court stated that where the suspect poses no
threat to the officer or others, "the harm resulting from failing to apprehend him
does not justify the use of deadly force to do so."148 Finally, the Court pointed
out that while it may be difficult to assess dangerousness, the difficulty of making
a split-second decision does not excuse the use of deadly force to apprehend a
49
suspect.1
Subsequent to the Garnerdecision, the Supreme Court announced that in a
police pursuit, an attempt to seize a person does not amount to a "seizure" under
the Fourth Amendment because a seizure occurs only when a government
official terminates movement through intentionally applied means. 150 Therefore,
137. Id at4.
138. Id. at5.
139. Garner.471 U.S. at 4 (quoting TENN. CODE ANN. § 40-7-108 (1982)).
140. Id. at 11. See id. 9-20 (discussing police procedures concerning use of force under Fourth
Amendment).
141. Id. at3.
142. Id. at 7.
143. Id. at 5.
144. Garner, 471 U.S. at 5.
145. See id. at 8 (discussing this balancing of interests and application to particular situations).
146. Id. at 20-21.
147. Id. at 11.
148. Id.
149. Garner, 471 U.S. at 20.
150. See County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (finding police's conduct was
CASE NOTES
2000]
429
courts analyze claims arising in the context of high-speed police pursuits under
the rubric of substantive due process and the Fourteenth Amendment, rather
.
than the reasonableness standard of the Fourth Amendment.
Prior to the decision of the Court in Lewis, the circuits agreed only that
negligence is insufficient to support a due process claim in high-speed police
pursuits.151 While the majority of courts had slowly begun to recognize "shocks
the conscience" as the correct standard, 152 the Ninth Circuit held that "deliberate
indifference" or "reckless disregard" would suffice to state a cause of action
under section 1983.153 Although the Supreme Court stated in Garner that the
use of deadly force may be considered constitutionally unreasonable, no court
applied this maxim to high-speed police pursuits. The Supreme Court granted
certiorari in Lewis in order to resolve the circuit conflict regarding the proper
standard to apply to section 1983 claims resulting from police pursuits.154
III.
THE COURT'S ANALYSIS IN COUNTY OFSACRAMENTO V. LEWIS
In County of Sacramento v. Lewis,155 the Supreme Court of the United
States declared that a high-speed police pursuit must "shock the conscience" in
order for due process liability to arise. 156 Only intent to do harm "shocks the
conscience," the Court clarified, because intent to do harm satisfies the element
of arbitrary conduct necessary for a due process violation.15 7 In reaching this
decision, Justice Souter, writing for the Court, first analyzed the plaintiffs' claim
in a constitutional context and explained the Court's reluctance to allow the
claim to proceed constitutionally. 158 After explaining the Court's reluctance to
not a seizure within meaning of Fourth Amendment based on decisions in 'Iodari and Brower);
California v. Hodari, 499 U.S. 621. 626 (1991) (finding police pursuit in attempt to seize person is not
seizure under Fourth Amendment); Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (explaining
governmentally caused termination of person's movement is a seizure). See also Evans v. Avery, 100
F.3d 1033, 1036 (Ist Cir. 1996) (stating because accident did not involve physical contact nor police
action directed at victim, no seizure occurred); Landol-Rivera v. Cruz Cosme, 906 F:2d 791, 796 (lst
Cir. 1990) ("It is the intervention directed at a specific individual that furnishes the basis for a Fourth
Amendment claim").
151. See supra note 58 and accompanying text for a discussion of the varying standards among a
selection of the circuits that have addressed the issue of section 1983 liability in the context of highspeed police pursuits.
152. The First, Third, Fourth, Fifth, and Tenth Circuits all recognize this standard. See Evans v.
Avery, 100 F.3d 1033, 1036 (1st Cir. 1996) (adopting "shocks the conscience" in the context of police
chases); Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (same); Temkin v. Frederick
County Comm'rs., 945 F.2d 716, 719 (4th Cir. 1991) (same): Checki v. Webb, 785 F.2d 534, 538 (5th
Cir. 1986) (same); Williams v. City & County of Denver, 99 F.3d 1009, 1015 (10th Cir. 1996)
(recognizing "reckless indifference" standard but defining it in terms of "shocks the conscience").
153. Lewis, 523 U.S. at 838. The remaining circuits' positions were unclear.
154. Id. at 839.
155. 523 U.S. 833 (1998).
156. Lewis, 523 U.S. at 84647.
157. Id. at 842.
158. Id. at 842-43.
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"expand the concept of substantive due process." 15 9 the Court determined what
circumstances would be necessary to substantiate this section 1983 claim.160
Finally, the Court justified its holding as being in accordance with social policy
and applied it to the facts.16 1
The Court began its analysis by acknowledging that the Fourteenth
Amendment prevents any state from depriving "'any person of life, liberty, or
property, without due process of law."'"6 2 The Court explained that finding
Officer Smith deprived Lewis of substantive due process would be tantamount to
determining that Smith's actions were "an abuse of executive power so clearly
unjustified by any legitimate objective" that it should be barred by the
Fourteenth Amendment. 16 3 The Court was unwilling to so find.164
In discussing its reasoning, the Court initially bypassed any discussion of
qualified immunity and instead reviewed the two constitutional objections to the
Lewises' claim.165 First, defendants argued that plaintiffs' claim was governed by
a "more definite provision of the Constitution."'66 Second, they argued that
even if the claim does arise under the Fourteenth Amendment, plaintiffs'
allegations were "insufficient to state a substantive due process violation through
abuse of executive power."' 6 7
The Court rejected the defendants' first argument that a more definite
provision of the Constitution governed plaintiff's claim, even though the Court
agreed with the basis for the argument.1 68 The Court noted that it has always
69
been "'reluctant to expand the concept of substantive due process.""'1
Therefore, if a more definite source of constitutional protection from
governmental behavior arises from another amendment, it will be preferred over
substantive due process.' 7 0 If, for example, a police chase is considered a seizure,
159. Id. at 842 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).
160. Id. at 846.
161. Lewis, 523 U.S. at 854-55.
162. Id. at 840 (quoting U.S. CONST. amend. XIV, § 1).
163. Id.
164. See id. at 854 (finding plaintiffs' allegations are insufficient to state substantive due process
claim based on standard applied by Court).
165. See id. at 841-42. The Court chose to bypass the discussion of qualified immunity because it
has held that in cases in which qualified immunity is a defense, the court must first determine whether
or not the alleged constitutional deprivation has occurred. See id. at 841 n.5 (finding first step under
any section 1983 claim is to determine "exact contours of underlying right" claimed to have been
violated). Qualified immunity only protects those who have deprived another of constitutional rights.
In Lewis, because the Court found no right was violated, an immunity determination was unnecessary.
166. Lewis, 523 U.S. at 842.
167. Id. In order for there to be a due process violation through executive abuse of power, there
must be conduct which is so egregious that it is "'arbitrary in the constitutional sense"' and thus it
shocks the conscience. Id. at 846 (quoting Collins v. Harker Heights, 503 U.S. 115, 129 (1992)).
168. Id. at 842-43.
169. Id. at 842 (quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).
170. See id. at 843 ("'[I]f a constitutional claim is covered by a specific constitutional provision,
such as the Fourth or Eiglitli Amendment, the claim must be analyzed under the standard appropriate
to that specific provision, not under the rubric of substantive due process."') (quoting United States v.
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CASE NOTES
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the resulting liability would arise under the Fourth Amendment using the search
and seizure standard of reaiona'leness, rather than the Fourteenth
Amendment's standard of constitutionally arbitrary executive action. 17 1
The Court agreed that analyzing a section 1983 claim under a more specific
constitutional source of protection is preferable to conducting a due process
analysis, but ultimately rejected the defendant's argument. 17 2 The Court
determined that plaintiffs' claim did not arise under the Fourth Amendment
because a police pursuit does not amount to a "seizure" within the meaning of
the Fourth Amendment. 17 3 Rather, a police pursuit is only an attempt to seize.
Moreover, the police pursuit at issue was a failed attempt to seize. 17 4 The Fourth
Amendment does not apply to a failed attempt to make a seizure. 175 Because
the claim was not covered by the Fourth Amendment, Fourteenth Amendment
substantive due process analysis was appropriate. 17 6
Although the Court faulted the defendants' first argument that a more
definite provision of the Constitution applied, it rejected the plaintiffs' attempt
to overcome the second argument and agreed with the defendants that the
plaintiffs' allegations did not state a substantive due process violation. The
Court stated "protection against arbitrary action" 177 is at the core of substantive
due process, whether the action is in the form of a "denial of fundamental
procedural fairness" 17 8 or an "exercise of power without any reasonable
justification in the service of a legitimate governmental objective." 17 9 The Court
emphasized that when dealing with abuse of executive power, only the "most
egregious official conduct" can be sufficiently "arbitrary" to warrant a due
process violation. 180
In analyzing whether a due process violation occurred, the Court reaffirmed
the standard for the level of executive abuse of power as one which "shocks the
conscience. "181 The Court reasoned that if executive action challenges were
Lanier. 520 U.S. 259, 272 n.7 (1997)).
171. See Lewis, 523 U.S. at 843-44 (stating Fourth Amendment only applies to search and
seizures, but this case is not a search and other decisions do not allow it to be classified as a seizure).
172. See id. at 842-43 (finding substantive due process analysis is improper if claim falls under
Fourth Amendment, but this claim does not).
173. See id. at 843-44 (examining Supreme Court cases dealing with whether police pursuit is
seizure).
174. See id (stating police pursuit in attempt to seize person does not amount to seizure under
Fourth Amendment).
l
175. See id (stating there is only seizure when there is governmental termination of freedom of
movement by intentionally applied means).
176. Lewiv, 523 U.S. at 843.
177. Id. at 845.
178. Id. at 845-46.
179. Id. at 846.
180. Id. (quoting Collins v. Harker Heights, 503 U.S. 115.129 (1992)).
181. Lewis, 523 U.S. at 846. The "shocks the conscience" standard comes originally from Rochzin
v. California, 342 U.S. 165, 172-73 (1952). In Rochin, the forced pumping of a suspect's stomach
shocked the conscience and violated the "decencies of civilized conduct" and therefore rose to the
standard of a due process violation. See Rochin, 342 U.S. at 172-73 (developing "shocks the
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allowed under a lesser standard, the "Constitution would be demoted to... a
font of tort law."' 8 2 The Court reiterated its concern that the Fourteenth
Amendment should not serve as a "'font of tort law to be superimposed upon
whatever systems may already be administered by the States.`'1'8 The Court
reasoned that "'[o]ur Constitution deals with large concerns ... but it does not
purport to supplant traditional tort law in laying down rules of conduct to
regulate liability for injuries that attend living together in society."'"8 4
In order to prevent the Constitution from becoming a "font of tort law," the
Court found that the threshold inquiry must be whether the behavior in question
is "so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience." 185 In reaching this deterniination, a court's judgment
must reflect an "understanding of traditional executive behavior, of
contemporary practice, and of the standards of blame generally applied to
them."' 8 6 The Court clarified that the "shocks the conscience" standard points
away from liability because it does not want due process to impose liability
through the Constitution whenever "someone cloaked with state authority
causes harm."187
Because of the reluctance to impose liability through the Constitution, the
Court explained that only conduct in which there is intent to injure and which is
unjustifiable by some government interest is conscience shocking.18 8
Accordingly, under this standard, the Court held that only intent to do harm will
support a substantive due process claim.' 8 9 The Court found deliberate
indifference by a government official not shocking to the conscience unless the
action had occurred in a specific context.19 0
In the context of a police chase, the officers are acting on quick-response
reflexes and impulses in which "obligations . . . tend to tug against each other."19 1
The officers have a duty to retain order by acting decisively but showing restraint
at the same time. 19 2 These officers make decisions "'in haste, under pressure,
and frequently without the luxury of a second chance."'19 3 They must achieve a
balance between allowing the suspect to flee and maintaining the safety of the
conscience" standard for due process violations).
182. Lewis, 523 U.S. at 848 n.8.
183. Id. at 848 (quoting Paul v. Davis, 424 U.S. 693, 701 (1976)).
184. Id. (quoting Daniels v. Williams, 474 U.S. 327,332 (1986)).
185. Id. at 848 n.8.
186. Id.
187. Lewis, 523 U.S. at 848.
18& Id. at 849.
189. Id. at 836.
190. Id. at 850 ("Deliberate indifference that shocks in one environment may not be so patently
egregious in another, and our concern with preserving the constitutional proportions of substantive
due process demands an exact analysis of circumstances before any abuse of power is condemned as
conscience shocking.").
191. Id. at 853.
192. See Lewis, 523 U.S. at 853 (discussing police duties in situations calling for fast action).
193. Id. (quoting Whitley v. Albers, 475 U.S. 312,320 (1986)).
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suspects, the bystanders, or other drivers. 19 4
Because of these issues, the Court recognized that police officers really only
have mid-level fault when accidents occur as a result of high-speed police
pursuits. 195 In contrast, in the prison situation of pretrial custody, the deliberate
indifference to the welfare of the inmates rests upon the luxury of the officials
making poor judgments in an unhurried and non-pressured situation. 19 6 To find
that officers violated substantive due process rights in mid-level fault situations
such as police chases, the Court declared, would be tantamount to forgetting
about the luxury of time that the prison officials enjoy. 197
Finally, the Court noted that while Willard did nothing but flout the
commonly understood law enforcement authority to control traffic, the officers
did nothing to encourage Willard's behavior or refusal to stop.198 The Court
repeatedly emphasized that Officer Smith was merely doing his job, did not
induce Willard's lawlessness, and did not intend to harm or kill him.199 The
officers had no improper motive. 200 The Court used this final reason to add
justification for its holding.
In one of several concurring opinions, Justices Kennedy and O'Connor
questioned the "shocks the conscience" standard on the ground that it is too
subjective. 2 0' The Justices called for a more objective standard, noting that
police should be afforded greater latitude and discretion within constitutional
boundaries. 2 02 Further, the Justices suggested that substantial danger potentially
results from a standard that suggests that suspects may disregard a lawful police
command to stop and then sue for damages when injured during the chase. 203
They concluded that "neither our legal traditions nor the present needs of law
enforcement justify finding a due process violation when unintended injuries
occur after the police pursue a suspect who disobeys their lawful order to
stop."204
In another powerful concurrence, Justice Scalia declared that he would
reverse the Ninth Circuit's decision because he would be reluctant to "'fashion a
194 Id.
195. Id.
196. Id. Another distinguishing feature of pretrial custody, the Court reasoned, is this: while in
custody, a prisoner is forced into a regime in which he cannot exercise ordinary responsibility for his
own welfare. See id. at 851 (discussing "markedly different circumstances" of pre-trial custody and
high-speed law enforcement). In contrast, in a high-speed police pursuit, the pursued usually chooses
toflee. Id.
197. Lewis, 523 U.S. at 853.
198. Id. at 855 (noting "Willard's outrageous behavior was practically instantaneous, and so was
Smith's instinctive response").
199. Id.
200. See id. (stating nothing indicates Smith's acts were "tainted by any improper or malicious
motive").
201. Id. at 857 (Kennedy, J., concurring).
202. Lewis, 523 U.S. at 857 (Kennedy, J., concurring).
203. Id. at 858 (Kennedy, J., concurring).
204. Id. (Kennedy, J., concurring).
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new due process right out of thin air"'20 5 and no precedent demonstrated that a
person has a right to be free from reckless police driving during a high-speed
chase. 206 Justice Scalia argued it was Willard who "deprived" Lewis of life, not
Smith. 207 He concluded that even though high-speed chases are potential risks to
passengers, suspects, bystanders, and other drivers, if the police are forbidden to
pursue suspects, more suspects will flee and create risks to the same people in a
different context.2 0 8
IV. AN ANALYSIS OF COUNTY OFSACRAMENTO V. LEWIS
The National Highway Safety Traffic Administration reports 5,306 deaths
over the last sixteen years caused by high-speed police pursuits. 20 9 A study by
the AAA Foundation for Traffic Safety in Illinois reports that up to 44% of
pursuits caused accidents, as many as 24% led to injury, and 1-3% resulted in
death. 2 10 Between 52% and 63% of high-speed chases were initiated not as a
result of life-threatening felonies, but rather as a result of traffic violations. 2 11
With police officer conduct resulting in statistics as egregious as these, it was
necessary for the Supreme Court to articulate a standard to clear up the circuit
confusion 2 12 and to announce a bright-line rule that would attempt to deal with
the litigation resulting from these accidents.
In Colnty of Sacramento v. Lewis, 2 13 however, the United States Supreme
Court incorrectly held that in order to trigger liability in the context of police
pursuits under the Civil Rights Act, 42 U.S.C. § 1983, the standard should be
conduct that "shocks the conscience," defined only as intent to harm.2 14 First,
the Lewis Court incorrectly determined that the standard of conduct necessary
205. Id. at 862 (Scalia, J., concurring in judgment) (quoting Carlisle v. United States, 517 U.S.
416,429 (1996)).
206. See id. (Scalia, J., concurring in judgment) (finding plaintiffs have no precedential authority
supporting alleged due process right and actually precedent is to the contrary).
207. Lewis, 523 U.S. at 864 (Scalia, J., concurring in judgment). "Though the police car did run
Lewis over, it was the driver of the motorcycle, Willard, who dumped Lewis in the car's path by
recklessly making a sharp left turn at high speed." Id. (Scalia, J., concurring in judgment).
208. Id. at 865 (Scalia. J., concurring in judgment) (quoting Mays v. City of East St. Louis, 123
F.3d 999, 1003 (7th Cir. 1997)). Justice Scalia explained that if suspects are permitted to successfully
flee from police, the number of crimes committed will increase due to the suspects' freedom and the
number of crimes solved will decrease. Id. (Scalia, J., concurring in judgment) (quoting Mays v. City
of East St. Louis, 123 F.3d 999, 1003 (7th Cir. 1997)).
209. Brief of Amicus Curiae The Association of Trial Lawyers of America in Support of
Respondents at *3 n.2, County of Sacramento v. Lewis, 523 U.S. 833 (1998) (No. 96-1337), availablein
1997 WL 610592.
210. Id.
211. Id.
212. See supra note 58 and accompanying text for a discussion of the circuits' confusion on the
proper standard involved in police pursuit.
213. 523 U.S. 833.
214. Lewiv, 523 U.S. at 836 (finding only when there is purpose to harm will due process violation
occur under "shocks the conscience" standard).
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for a due process violation is the subjective "shocks the conscience" standard. 2 15
It is too lofty and too subjective a standard; no claimant will reach even a factfinder. Second, even assuming that "shocks the conscience" is the correctly
enunciated standard, the Court incorrectly held that the officer must act with
"intent to do harm" in order for the behavior to meet the conscience-shocking
test.216 By creating this bright-line standard of "intent to do harm," the Court
may have taken some subjectivity out of the "shocks the conscience" standard,
but it concurrently raised the level necessary for a violation to such a high
degree that almost no claimants will be able to meet it. With such a heightened
standard, few, if any, plaintiffs will be able to present their claims to the factfinder-who should be able to determine whether some legitimate purpose
justified the chase. Without justification, the victims should be compensated.
The proper standard should be one of two alternatives: (1) that the use of
deadly force in a pursuit is tantamount to a "seizure" subject to a Fourth
Amendment reasonableness standard; 2 17 or (2) that conduct demonstrating
deliberate indifference to, or reckless disregard for, life is sufficient to violate
due process. Regardless of the standard chosen, police forces need to implement
more training to ensure officers know whether to pursue, and when to stop.
A.
Problems with the Standard:What "Shocks the Conscience" of the United
States Supreme Court?
The "shocks the conscience" standard, 2 18 defined as inteAt to harm, is not
the correct standard for determining a due process violation; it is too lofty a
standard for plaintiffs to overcome. 2 19 In the past, even if the act was egregious.
215. See supra notes 181-97 and accompanying text for a discussion of the Court's adoption of
the "shocks the conscience" standard in Lewis.
216. See supra notes 188-90 and accompanying text for a discussion of the Court's definition of
"shocks the conscience" as requiring an officer's intent to do harm.
217. See Avery, supra note 1, for a discussion of police pursuits as similar to use of deadly force
and for arguments consistent with those presented in this Note.
218. The "shocks the conscience" standard originally derives from Rochin v. California, 342 U.S.
165 (1952). In Rochin, sheriffs forced open the door of a suspected narcotics dealer, forced open the
door to his bedroom, and then forcibly attempted to extract capsules that he had swallowed. Roclzin,
342 U.S. at 166. Unable to do so, the officers took the suspect to the hospital, and against his will
forced a tube and emetic solution into his stomach until he vomited. Id. The capsules contained
morphine that led to the accused's conviction. Id. The Supreme Court conimented that in order to
rise to the level of a due process violation the behavior must "offend those canons of decency and
fairness which express the notions of justice." Id. at 169. The Court also declared that due process is
the guarantee of the rights which are "'so rooted in the traditions and conscience of our people as to
be ranked as fundamental,' or are 'implicit in the concept of ordered liberty."' Id. (citations omitted).
The Court held that the behavior of the officers shocked the conscience of the Court, and stated that
the actions had done more than "offend some fastidious squeamishness or private sentimentalism
about combating crime too energetically." Id. at 172.
219. Judge Cowen points out that ever since the Court announced the "shocks the conscience"
standard in Rochin v. California,342 U.S. 165 (1952), the Court has not once "employed [the] test as
part of its holding in any case." Fagan v. City of Vineland, 22 F.3d 1296, 1316 (3d Cir. 1994) (Cowen,
J., dissenting). He uses Graham v. Connor, 490 U.S. 386 (1989), as an example of a case where the
Court specifically rejected the standard in a section 1983 action alleging police misconduct, but chose
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"exceedingly little government action [has been found] to shock the judicial
conscience." 2 2 0 Also, "judicial hostility to constitutional claims runs high."'22 ' An
example of this grudging attitude of the conscience-less courts is Temkin v.
Frederick County Commissioners,222 in which an officer killed two innocent
citizens while pursuing a suspect at 105 miles per hour for an alleged theft of
seventeen dollars worth of gasoline. 223 An expert found the conduct to be
"'reckless,' 'totally irresponsible,' and 'wanton."' 2 24 This behavior did not shock
the conscience of the Fourth Circuit, even though the court declared it to be
"disturbing and lacking in judgment" and noted that the behavior had violated
the General Order of the police force. 225 In fact, by the court's own admission,
several cases existed with facts "more egregious" than those in Temkin, yet the
consciences of sister courts similarly were not shocked.226 A court usually will
reason that its conscience has not been shocked because in like cases, similarly
egregious facts had not risen to the conscience-shocking level of other courts.2 27
This circular logic creates a situation where no court's conscience will ever be
shocked.
Moreover, the "shocks the conscience" standard has proven to be "laden
with subjective assessments" in the past.2 28 Before Lewis was handed down, the
rather to employ the reasonableness test of the Fourth Amendment. Id. at 1318 (Cowen, J.,
dissenting). Now, the main use of Roclzin, he argues, is as the source for the quote of the popular
catch phrase. Id. at 1318 (Cowen, J., dissenting).
220. Martin A. Schwartz, The Decision on Police Pursuit,220 N.Y. L. J., Oct. 20,1998, at 3,6.
221. Aver., supranote 1, at 53.
222. 945 F.2d 716 (4th Cir. 1991).
223. Temkin, 945 F.2d at 718. See also Avery, supra note 1, at 53 (discussing conduct of police
officer in Tenikin).
224. Temnkin, 945 F.2d at 723 (quoting expert's testimony).
225. Id. at 723-24.
226. Id. at 723. See, e.g., Evans v. Avery, 100 F.3d 1033, 1035, 1041 (lst Cir. 1996) (holding highspeed chase through "busy shopping venue [and] densely populated residential area" which resulted in
striking and injuring of ten-year-old girl was not shocking to conscience of court); Fagan v. City of
Vineland, 22 F.3d 1296, 1309 (3d Cir. 1994) (holding high-speed chase through residential
neighborhoods which resulted in death and injuries of the pursued as well as innocent bystanders was
not shocking to conscience); Roach v. City of Fredericktown, 882 F.2d 294, 298 (8th Cir. 1989)
(holding high-speed chase in which officer exceeded limits of his authority and seriously injured
innocent drivers was not enough to substantiate due process claim); Jones v. Sherrill, 827 F.2d 1102,
1107 (6th Cir. 1987) (holding high-speed chase which resulted in death of innocent bystander was not
enough to substantiate due process violation, even under standard of reckless indifference).
227. See, e.g., Evans, 100 F.3d at 1038-39 (comparing facts of present case to facts of cases in
other circuits in which behavior did not "shock the conscience" and thereby fortifying court's
conclusions); Temkin, 945 F.2d at 722-23 (finding facts are almost indistinguishable from four other
cases where conduct fell short of "shocks the conscience" standard).
228. Schwartz, suipra note 220. at 3 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 857
(1998) (Kennedy, J., concurring). See supra notes 224-27 and accompanying text for discussion of how
the courts subjectively determine that police chase is not conscience-shocking based on the circular
logic that similarly egregious behavior was not shocking to the conscience of sister circuits. See also
Rochin v. California. 342 U.S. 165,179 (1952) (Douglas. J., concurring) (stating Rochin holding makes
"the rule turn not on the Constitution but on the idiosyncrasies of the judges who sit here").
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"shocks the conscience" test was criticized as "hardly a test at all" 229 that
entailed an "amorphous and imprecise inquiry."230
The Lewis Court has cleared up some of the confusion surrounding the
subjectivity of the standard by stating that only conduct in which there is intent
to do harm will suffice to shock the consdience.2 11 In announcing this standard,
the Court has implemented a bright-line rule. The Court, however, also has
made it virtually impossible for a plaintiff to substantiate a claim.23 2 How does a
plaintiff prove the officer intended to do harm? Although no statistics support
the speculation, it can be suggested that in the hundreds of :high-speed police
chases in which people are killed each year, only a scant few, at most, will be able
to prove intent to do harm. Cases rarely will reach the fact-finder. This means
some plaintiffs will not be compensated for egregious actions by the police, even
those actions which are "unwise, foolish, or even stupid decision[s];" 2 33 "reckless,
totally irresponsible, and wanton;"234 "disturbing and lacking in judgment;"235
and those which leave innocent citizens dead or injured. !Even though the
Constitution should not be a "font of tort law," 236 it should not act to preclude
innocent people from recovering for the arbitrary acts of government officials. It
should protect the governed, not the governing.
Section 1983 might be the only vehicle by which victims may be
compensated for egregious actions by police officers. It seems unfortunate that
these constitutional issues relate so closely to monetary damages.
The
Constitution is an instrument seemingly above mundane topics like
compensation. 2 37 In a lofty, more "Fourth of July" sense, the Constitution
ensures liberty and justice for all, not just monetary compensation for wrongs.
Although the "Constitution is not an insurance plan to reimburse citizens" for all
damages that may result from life's hazards, section 1983 provides a remedy for
constitutional violations by government actors. 2 3 8 This compensatory function is
particularly significant because, unfortunately for victims, mbst state remedies
offer qualified immunity to officers 239 and therefore leave ivictims without a
229. Fagan, 22 F3d at 1319 (Cowen, J., dissenting).
230. Id. at 1308.
231. See County of Sacramento v. Lewis. 523 U.S. 833, 854 (1998) (finding "purpose to cause
harm" is needed for due process violation in police pursuit cases).
I
232. See Schwartz. supra note 220, at 6 ("The reality is that it will be yirtually impossible for
plaintiffs to satisfy the Lewis purpose-to-cause-harm test.-).
233. Id.
234. Temkin v. Frederick County Comm'rs., 945 F.2d 716, 723 (4th Cir. 1991) (quoting expert
witness).
235. Id. at 723.
236. See supra notes 63-66 and accompanying text for a discussion of the view that the
Constitution should not be a "font of tort law."
237. But see Nollan v. California Coastal Comm'n, 483 U.S. 825, 841-42 (1987) (holding property
owners must be compensated for government taking of eminent domain under Fifth Amendment).
238. Fagan v. City of Vineland, 22 F.3d 1296,1321 (3d Cir. 1994) (Cowen,'J., dissenting).
239. Qualified immunity is granted only after a court assesses the defendant's actions and
determines that the actions were reasonable under the circumstances. Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982).
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remedy if section 1983 does not provide relief.
Section 1983 "should be read against the background of tort liability that
makes a man responsible for the natural consequences of his action." 2 40
Implementing the "shocks the conscience" standard, defined as only intent to do
harm, basically denies victims any sort of monetary damages. Because the
standard is so hard to meet, in addition to denying victims a remedy,
commentators argue that the Lewis decision merely "expand[s] ... the scope of
police powers while decreasing their public accountability."241 To prevent the
decrease of public accountability by police officers with expanded powers and to
prevent the denial of compensation to victims, courts should use one of two
alternative standards in determining liability in the context of a high-speed police
pursuit when a plaintiff claims a substantive due process violation.
B. Suggested Alternative Standardsfor the Context of High-Speed Police
Pursuits
1.
Courts Should Use the Standards Applied in Tennessee v. Garner
Because High-Speed Police Pursuits Constitute a Use of Deadly Force
The fallout of Lewis includes an expansion of police powers, allowing more
use of deadly force in apprehending suspects. In the past, however, the Supreme
Court has noted that "[t]he use of deadly force to prevent the escape of all felony
suspects, whatever the circumstances, is constitutionally unreasonable. It is not
better that all felony suspects die than that they escape." 24 2 This principle should
be expanded to police pursuits. It is even more persuasive in the context of
police pursuits in which the statistics show that chases are tantamount to use of
deadly force.243
Empirical studies show that "chase practices of many officers are
unjustifiably dangerous."244
The National Highway Safety Traffic
Administration has reported "2,104 deaths in police pursuits between 1991 and
1996 or an average of 350 deaths per year." 2 45 Geoffrey Alpert, a leading expert
in the area of police pursuits, has reported that 40% end in collisions and 20%
result in injuries.24 6 Additionally, studies have shown that, depending on the
240. Monroe v. Pape, 365 U.S. 167,187 (1961).
241. Barbara Dority, More Power, Less Responsibility, THE HUMANIST, Sept./Oct. 1998, at 3.
Dority engaged in an on-line discussion with a police officer who wrote: "'When someone decides to
step on it instead of stopping, 1 have to decide whether this is worth an innocent getting killed over."'
Id. at 4. Dority was "stupefied" that "sometimes it's okay for public servants and protectors to take
innocent life." Id.
242. Tennessee v. Garner, 471 U.S. 1, 11 (1985). See supra Part II.C for a discussion of the
Garnercase. See also Graham v. Connor, 490 U.S. 386, 396-99 (1989) (holding use of deadly force is
unreasonable if used against non-dangerous suspect and proper standard to apply is reasonableness).
243. See infra notes 244-51 and accompanying text for a discussion of facts and statistics
concerning high-speed police pursuits.
244. Avery, supra note 1, at 53.
245. Id. at 57 n.2.
246. Id. at 54.
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jurisdiction, anywhere between 45% and 70% of the pursuits were initiated for
traffic violations.247
Officers rarely abandon or terminate these pursuits voluntarily.248 The data
suggests that an officer is ten times more likely to end a pursuit by crashing than
by abandoning it.249 Alpert has pointed out that recruits tend to foster a "'chase
them till the wheels fall off' mentality" until they are trained to make proper and
rational decisions.2 50 Once trained, he says, the officers have, what he calls, a
"perishable skill," which requires frequent training to maintain.2 51 This
perishable skill is the ability to weigh the risks to safety against the necessity of
apprehending the suspect and the ability to make a decision accordingly within a
high-pressure situation. 2 52 The skill is crucial for determining when to chase and
when not to chase.
Police expert Lou Reiter claims that because high-speed pursuits and the
use of firearms are so similar in some regards, the standard used to judge them
should be the same. 253 In both circumstances, officers are allowed to go beyond
"ordinary constraints of the law" and, in exigent circumstances, are allowed to
use deadly force.254 Because of these similarities, the deadly force standard
applied in Tennessee v. Garner25 5 would be more appropriate than "intent to do
harm."
Comparing the facts of Garner with those of Lewis demonstrates the
striking similarities between the two cases. 256 Both involve young, unarmed and
non-dangerous suspects. Both suspects died while fleeing from the police. The
police, in both cases, apprehended the victims through the means of unnecessary
deadly force.
In Garner, the Court defined a "seizure" as a situation in which an officer
restrains a person from walking away. 257 Such is the case in a police pursuit. In
the pursuit that ended Philip Lewis's life, the officers prevented both him and
the driver from choosing to walk away; the officers "seized" the boys through the
use of deadly force. The pursuit and resultant accident restrained the unarmed,
247. Id.
248. Id.
249. Avery, suipranote 1, at 54.
250. Id. at 57.
251. Id.
252. See id. (stating "perishable skill" is ability to make proper decisions about initiating
pursuits).
253. Id. at 54. Reiter points out several facts about high-speed chases and police shootings, such
as: (1) people are injured at the same rate in both; (2) chases occur more frequently than shootings; (3)
most officers will engage in a chase at least once during their careers, but few will fire their gun at
another person; (4) the average officer is far more likely to injure an innocent citizen with a police car
than with his gun; (5) high-speed chases involve more unpredictable scenarios than do shootings, thus,
it is more difficult for the officer to control the outcome. Id.
254. Avery, supra note 1, at 54.
255. 471 U.S. 1 (1985). See supra Part II.C for a discussion of Garnerand its holding.
256. See supra notes 134-37 and accompanying text for a discussion of the facts of Garner and
notes 18-36 and accompanying text for a discussion of the facts of Lewis.
257. Tennessee v. Garner, 471 U.S. 1,7 (1985).
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sixteen-year-old Lewis in the same way the pursuit and subsequent shooting
restrained the unarmed, sixteen-year-old suspect in Garner. In Garner, the
Court analyzed this seizure under the Fourth Amendment reasonableness
standard and found that the facts did not justify the amount of force used.35 8 The
Court determined that use of deadly force was "constitutionally
unreasonable." 25 9 It declared, "the harm resulting from failing to apprehend him
does not justify the use of deadly force to do so;"'260 "[i]t is not better that all ...
suspects die than they escape. "261 Applying this standard to the use of deadly
force in Lewis would have resulted in compensation for the family of Philip
Lewis based on the constitutionally unreasonable use of deadly force with which
the boys were "seized." 26 2 At the very least, a fact-finder would have reviewed
the case to decide whether the officers acted reasonably under the
circumstances. More importantly, it would have resulted in a standard that
would not have expanded police powers without some accountability-a
standard that would have led to officers only using reasonable measures to
apprehend suspects. 26 3
Considering a chase tantamount to the use of deadly force means an officer
should use reasonable measures to apprehend a suspect if it is possible to do so
without endangering human lives. The Court in Lewis declared that it was the
driver of the motorcycle who disobeyed the law. The driver decided to flee, and
by doing so, he assumed responsibility for the death, not the officers who were
merely doing their jobs. 264 This argument is persuasive because officers are, at
some levels, duty-bound to apprehend suspects. 26 5 A suspect may prevent a
chase and the danger associated with the chase by simply obeying the officer's
command to stop. Absent the ignoring of a command to stop by a law official,
the pursuit never would have ensued.
Despite the apparent logic of this argument, most fleeing suspects in
pursuits are not hardened criminals or felons. In fact, they often are frightened
minor offenders, like Brian Willard, for whom fleeing is an instinctual reaction to
the presence of the officers. 266 Society does not excuse a misdemeanant from
disobeying a lawful command to stop. but misdemeanors certainly do not cause
258. Id. at 11.
259. Id.
260. Id.
261. Id.
262. At the very least, the case would have reached a jury, which then could have decided
whether the use of the force was reasonable or not. With the "shocks the conscience" standard, the
fact-finder never hears the plaintiff's story.
263. An undercurrent in the Garner case was that it is unconstitutional to use deadly force
against unarmed, non-dangerous fleeing suspects; the Court held the statute authorizing such use
unconstitutional. Garner, 471 U.S. at II.
264. See County of Sacramento v. Lewis, 523 U.S. 833, 855 (1998) (stating police had done
nothing to cause or encourage driver's high-speed driving other than doing their job).
265. But see Fagan v. City of Vineland, 22 F.3d 1296, 1315 n.4 (3d Cir. 1994) (Cowen, J.,
dissenting) (arguing officers also have duty of care to citizens and innocent passersby).
266. Avery, supra note 1, at 54.
CASE NOTES
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441
exigent circumstances that should lead to the use of deadly force. After all, "it is
not better that all ... suspects die than that they escape."2 67 A foolish choice by
a frightened young suspect does not create exigent circumstances.
Finally, the old adage "two wrongs do not make a right" rings especially
true in the context of police pursuits. Officers should not pursue a suspect until
the point of death just because a suspect makes a decision reflecting poor
judgment.. Rather, officers should employ their refined instincts and honed
decision-making tactics and should choose wisely. It would be a rare occurrence
for pursuit until death to be necessary to prevent the suspect from causing
further ills to society. If courts are reluctant to consider high-speed police
pursuits tantamount to a use of deadly force, the alternative standard of
"deliberate indifference" or "reckless disregard" also would enable officers to
employ refined decision-making tactics, and would provide plaintiffs the
opportunity at least to reach a fact-finder.
2.
Alternatively, Courts Should Apply the Standard of "Reckless
Disregard" or "Deliberate Indifference" in the Context of Police
Pursuits
Instead of using the "shocks the conscience" standard, the United States
Supreme Court should have held that high-speed police chases illustrating
reckless disregard for, or deliberate indifference to, a person's right to life or
bodily integrity violate the Fourteenth Amendment and give rise to a cause of
action under section 1983. At the core of due process is the notion of protection
against arbitrary or deliberate government action.26 8 As Judge Cowen points out
in his Fagan dissent, a high-speed police pursuit displaying reckless indifference
to someone's life is tantamount to an intentional act or an arbitrary exercise of
power.2 69
The standards of "deliberate indifference" or "reckless
indifference/disregard," which are essentially interchangeable, 2 70 are high
enough benchmarks to prevent the Fourteenth Amendment from becoming a
"font of tort law."2 71
a.
ProtectionAgainst Arbitrary or DeliberateAction from the
Government Is at the Core of Due Process
Protection from arbitrary or deliberate government action, not only
intentional deprivation of constitutional rights, is at the core of due process. The
Court incorrectly decided that only intent to do harm "shocks the conscience"
and suffices as a due process violation in a high-speed police pursuit. This
267. Garner. 471 U.S. at 11.
268. Lewis, 523 U.S. at 845 (quoting Wolff v. McDonnell, 418 U.S. 539,558 (1974)).
269. Fagan, 22 F.3d at 1321 (Cowen, J., dissenting).
270. See Lewis v. Sacramento County, 98 F.3d 434, 441 (9th Cir. 1996) (stating "recklessness and
deliberate indifference are equivalent in sense that they both generally refer to conduct involving a
conscious disregard of public safety" (citations omitted)).
271. See suipra note 66 and accompanying text for a discussion on the Court's unwillingness to
expound the Constitution as a "font of tort law."
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decision precludes section 1983 recoveries for anything less than intentional
conduct. When considering section 1983 actions in the past, the Court has held
that neither the language of the statute nor its legislative history limits it solely to
intentional deprivations of constitutional rights. 272 Additionally, the Court has
declared that section 1983 "affords a 'civil remedy' for deprivations of federally
protected rights caused by persons acting under color of state law without any
express requirement of a particular state of mind." 273 The Court has declared
that section 1983 "should be read against the background of tort liability that
makes a man responsible for the natural consequences of his actions." 27 4 The
Court also has made it clear, however, that section 1983 was not intended to turn
the Fourteenth Amendment into a "font of tort law" 275 and accordingly has held
allegations that officers acted with mere or gross negligence insufficient to state a
substantive due process violation. 27 6 In fact, the courts only recognize a
constitutional violation when the governing creates a hazard to the governed, or
when the exercise of government power creates a hazard. 277 A high-speed police
pursuit satisfies this requirement; the privilege of pursuing suspects is
government conduct which ordinary citizens do not have a right to do.
Because the Constitution is not a vehicle for a tort remedy, negligence is
insufficient to substantiate a due process claim. 278 This pronouncement by the
Court. albeit correct, does not implicitly lead to the result that only intentional
conduct triggers due process clause scrutiny. The Due Process Clause of the
Fourteenth Amendment was intended to secure an individual's rights from the
arbitrary actions of government officials.2 79 There are several levels of culpable
272. Parratt v. Taylor, 451 U.S. 527, 534 (1981), overruled on otlzer grountds by Daniels v.
Williams, 474 U.S. 327 (1986).
273. Parratt,451 U.S. at 535.
274. Monroe v.Pape, 365 U.S. 167, 187 (1961).
275. Daniels v. Williams, 474 U.S. 327,332 (1986).
276. Id. at 328.
277. See Fagan v. City of Vineland, 22 F.3d 1296, 1321 (3d Cir. 1994) (Cowen, J., dissenting)
(examining Daniels and finding it requires courts to examine whether challenged conduct involved
relationship of governors and governed). See generally Daniels, 474 U.S. at 331 (noting that Due
Process Clause was meant to protect citizenry from arbitrary governmental power).
278. See supra note 66 and accompanying text for discussion of the Court's reluctance to turn the
Constitution into a "font of tort law." See also Daniels, 474 U.S. at 332 (finding "Constitution deals
with large concerns of governors and governed, but it does not purport to supplant traditional tort law
in laying down rules of conduct to regulate liability for injuries that attend living together in society");
Medina v. City &County of Denver, 960 F.2d 1493,1495 (10th Cir. 1992) (citing Paul v. Davis, 424
U.S. 693, 701 (1976), for proposition that Fourteenth Amendment is not "font of tort law").
279. The Due Process Clause provides: -[N]or shall any State deprive any person of life, liberty,
or property, without due process of law." U.S. CONST. amend. XIV, § 1. "Historically, this guarantee
of due process has been applied to deliberate decisions of government officials to deprive a person of
life, liberty, or property." Daniels, 474 U.S. at 331. The Daniels Court expounded upon the meaning
and usefulness of the Due Process Clause by examining its history, and reiterated the notion that the
clause is intended to protect individuals from "arbitrary" government action. The Court stated:
No decision of this Court ... supported the view that negligent conduct by a state official,
even though causing injury, constitutes a deprivation under the Due Process Clause. This
history reflects the traditional and common-sense notion that the Due Process Clause...
2000]
CASE NOTES
443
behavior between negligence and intent. Reckless behavior is somewhere in the
middle-more culpable than negligent, but less so than intentional-and should
be considered "arbitrary enough" to rise to a Fourteenth Amendment violation
because the standard constitutes a deliberate or arbitrary exercise of government
power and thus violates the Due Process Clause.230
Historically, the Supreme Court has applied the guarantee of due process to
the "deliberate decisions of government officials to deprive a person of life,
liberty, or property," and recognized that due process was "intended to secure
the individual from the arbitrary exercise of the powers of government."'2 81
Thus, protection from arbitrary action of the government is at the core of due
process.28 2 The essence and purpose of the substantive aspect of the Fourteenth
Amendment's Due Process Clause is to prevent officials acting under the cloak
of government authority from abusing their power or using it as an "'instrument
of oppression."' 2 83 Accordingly, the Supreme Court has held that violation of
the Due Process Clause is implicated only when the action by a government
official is intentional or arbitrary in the constitutional sense.284
b.
A Police Officer's Reckless Disregardfor the Safety of Others Is
Tantamount to a Deliberateor Intentional GovernmentAct
When police officers conduct themselves in a manner that displays a
reckless disregard for the safety of others, it should be sufficient to implicate the
Fourteenth Amendment because reckless disregard or deliberate indifference
constitutes a deliberate or intentional government act.285 When someone acts
with a reckless indifference to life, his action is inherently dangerous.
Recklessness is a "conscious disregard of 'a substantial and unjustifiable risk."' 286
was "'intended to secure the individual from the arbitrary exercise of the powers of
government."'
Id. (citations omitted).
280. See Fagan. 22 F.3d at 1319 (Cowen, J., dissenting) (finding reckless conduct is arbitrary
exercise of governmental power and thus violation of Fourteenth Amendment). See also Daniels,474
U.S. at 331 (stating due process should protect citizens from "'arbitrary exercise of the powers of
government").
281. Daniels,474 U.S. at 331.
282. Id.. See County of Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (finding core of due
process has long been understood as protecting citizens from arbitrary governmental action).
283. Collins v. Harker Heights, 503 U.S. 115, 126 (1992) (quoting DeShaney v. Winnebago
County Dept. of Social Serv., 489 U.S. 189, 196 (1989)). See Daniels, 474 U.S. at 331 (stating Due
Process Clause "serves to prevent governmental power from being 'used for purposes of oppression"'
(citation omitted)).
284. See Lewvis. 523 U.S. at 845 (stating basis of due process is protection of individual against
arbitrary action of government); Fagan, 22 F.3d at 1321 (Cowen. J., dissenting) (finding Supreme
Court many times has asserted position that Due Process Clause forbids arbitrary exercise of
governmental power).
285. See Fagan, 22 F.3d at 1322 (Cowen, J.. dissenting) (finding reckless conduct would satisfy
intentional conduct test of section 1983).
286. Id. at 1323 (Cowen, J., dissenting) (quoting MODEL PENAL CODE § 2.02(2)(c) (1980))
(emphasis added).
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Other definitions of reckless indifference implicate knowledge and intentional
action:
Reckless indifference exists when a person acts in reckless disregard of
the safety of another if he does an act or intentionally fails to do an act
which it is his duty to the other to do, knowing or having reason to
know of facts which would lead a reasonable man to realize, not only
that his conduct creates an unreasonable risk of physical harm to
another, but also that such risk is substantially greater than that which
is necessary to make his conduct negligent.2 87
Additionally, reckless indifference has been defined as conduct that is
"established if the actor was aware of a known or obvious risk that was so great
that it was highly probable that serious harm would follow and he or she
proceeded in conscious and unreasonable disregard of the consequences." 2 88
Intentional conduct is the touchstone of these definitions of reckless
indifference. 28 9 Courts have recognized that -[tihe equation of reckless[ness]
with deliberate conduct is familiar, on the ground that reckless disregard of a
great risk is a form of knowledge or intent." 2 9 0 An element of mental culpability
exists in deliberately choosing to do something with knowledge of what the
result most likely will be and consciously disregarding the risk. This is why Judge
Cowen, in his dissent in Fagan, determined that "[r]ecklessness contains an
important behavioral attribute encompassed by intentional conduct, that is,
intentionally taking a perceived risk."'2 9 1 Therefore, if a police officer acts with
knowledge of the likelihood of extreme consequences, he acts with reckless
disregard for life; the conduct should meet the standard for a section 1983 action
and substantive due process claim because the officer has acted deliberately. 29 2
Deliberate action encapsulates an element of intentional behavior: -[t]he
difference between reckless conduct and intentional conduct is but one thin
line. "293
287. RESTATEMENT (SECOND) OFTORTS § 500 (1965) (emphasis added).
288. Medina v. City &County of Denver, 960 F.2d 1493,1496 (10th Cir. 1992).
289. Acting with reckless disregard may not be the same as intentional behavior, but acting with
reckless disregard encapsulates enough mental culpability to be tantamount to deliberate actions. For
example, if someone deliberately slams a door, and the victim's hand is in the doorway, the actor may
have intended to slam the door, but not to crush her hand. If, however, the actor saw the victim's hand
in the door, knew and appreciated what would happen to the victim's hand if she slammed the door.
and proceeded to do so anyway, she has acted with mental culpability by disregarding the risk she
knew existed to the hand. Thus, by slamming the door, she may not have intended to crush the hand,
but she intended to slam the door and did so with full consciousness of the risk posed to the victim's
hand. This knowledge, I am arguing, satisfies sufficient mental culpability to equate deliberateness.
290. Archie v. City of Racine, 847 F.2d 1211,1219 (7th Cir. 1988).
291. Fagan, 22 F.3d at 1324 (Cowen, J., dissenting) (citing RESTATEMENT (SECOND) OF TORTS §
500 cmt. b (1965)).
292. See id. at 1323-25 (Cowen. J., dissenting) (discussing, in detail, why reckless indifference
should is the appropriate standard).
293. Id. at 1324 (Cowen, J., dissenting). See also Archie, 847 F.2d at 1219 (stating "[t]he equation
of recklessness with deliberate conduct is familiar, on the ground that reckless disregard of a great risk
is a form of knowledge or intent"). Also note that the Model Penal Code equates recklessness with
the minimal culpability required for some crimes. MODEL PENAL CODE § 2.02(3) (1980). See also id.
CASE NOTES
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445
This proposal is not novel-there are situations in the law where
recklessness is tantamount to intent.2 94 For example, the common law provides
that where conduct is reckless, and not merely negligent, punitive damages will
be imposed on defendants. 2 95 Additionally, some statutes provide that reckless
conduct encapsulates willfulness and, as such, is punishable through civil
penalties. 2 9 6 In criminal law, recklessness is the minimal standard required when
a statute fails to establish what culpability is a material element of the offense. 2 97
The Model Penal Code thus treats recklessness the same as purposeful unless a
criminal statute differentiates them. 2 98 Also, the Model Penal Code states that
when homicide is committed recklessly in a circumstance that manifests an
extreme indifference to life, the homicide is murder-no different from an act
that is committed purposely. 29 9 Finally, under federal criminal law, recklessness
is, in certain situations, a crime.3 00
All of these examples equate recklessness with intent. Therefore, if highspeed police chases like the one in Lewis are conducted with reckless disregard
for human life, they too are tantamount to a deliberate government act. The
Court should have held that this intentional or deliberate action was sufficient to
substantiate a section 1983 claim.3 01
c.
Reckless DisregardDuringa High-Speed PolicePursuitIs
Tantamount to Arbitrary Government Action
If for some reason the chase was not deliberate government action, the
chase "would surely satisfy the alternative touchstone for a due process
violation, namely, the arbitrary exercise of governmental power." 30 2 The chase is
clearly an exercise of government power. Arbitrary is defined as:
In an unreasonable manner, as fixed or done capriciously or at
§ 210.2(1)(b) (stating criminal homicide committed recklessly with indifference to life is murder).
Federal criminal law also equates reckless conduct in certain contexts to crimes. See, e.g.. 18 U.S.C. §
1864(a)(3) (1988) (making it criminal to recklessly use hazardous or injurious device on federal land).
294. See Fagan, 22 F.3d at 1324 (Cowen, J., dissenting) (discussing situations where "recklessness
is tantamount to intent").
295. REsTATEMENT (SECOND) OF TORTS § 501 cmt. b (1965).
296. See, e.g., Frank Irey, Jr., Inc. v. Occupational Safety & Health Review Comm'n, 519 F.2d
1200, 1207 (3d Cir. 1975) (stating under OSHA, willfulness indicates "defiance or such reckless
disregard of the consequences" so as to be a "knowing, conscious, and deliberate flaunting of the
Act").
297. MODEL PENAL CODE § 2.02(3) (1980).
298. See Fagan, 22 F.3d at 1324 (Cowen, J., dissenting) (examining use of recklessness as
culpability standard in Model Penal Code).
299. MODEL PENAL CODE § 210.2(1)(b) (1980).
300. See, e.g., 18 U.S.C. § 1864(a)(3) (1988) (making it criminal to recklessly use hazardous or
injurious device on federal land or Native-American reservation).
301. "Deliberate indifference," which is tantamount to "reckless disregard," also encapsulates
"intentional." "Deliberate" is defined as "[w]ell advised; carefully considered; not sudden or rash;
circumspect; slow in determining. Willful ratherthan merely intentional." BLACK'S LAW DtCTboNARY
426 (6th ed. 1990) (emphasis added).
302. Fagan.22 F.3d at 1325 (Cowen, J., dissenting).
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pleasure. Without adequate determining principle: not founded in the
nature of things: nonrational; not done or acting according to reason or
judgment: depending on the will alone: absolutely in power;
capriciously; tyrannical: despotic. 30 3
Judge Cowen points out that [b]y this definition, reckless conduct constitutes an
arbitrary act." 30 4 Reckless conduct is established when an actor is aware of the
high probability of harm yet proceeds in conscious disregard of that danger.30 5
In short, arbitrary action defines reckless conduct. Courts have held that a
government actor recklessly disregarding facts violates substantive due
process.
3 06
Reckless conduct by an officer in the context of a high-speed police chase
should be considered equivalent to arbitrary action. The police have power and
authority to use sirens, vehicles, and badges-all representing the authority to
disregard the standard traffic laws and rules of the road. They are:
Empowered with authority and equipped with materials such as guns
or motor vehicles to carry out their public duties.... [and so when
they act recklessly], the deprivations they cause are arbitrary in the
most
basic
sense
....
Anyone
can
drive
carelessly.
but
only
government officers are cloaked with the authority to drive at high
speeds in specified situations. 30 7
Because the state grants this authority and power to police officers, the
Court should find officers who have engaged in and consciously chosen to
continue pursuits of suspects with a reckless disregard or deliberate indifference
to life to have violated substantive due process. As a result, claimants should be
allowed to bring suit under section 1983. Behavior exhibiting reckless disregard
or deliberate indifference for the safety of others is sufficient to invoke the
protection of the Fourteenth Amendment because the arbitrary action of a
government official element has been met. The Court has held that a standard
of deliberate indifference is sufficiently high to bring a claim under the Eighth
Amendment. 30 8 A due process violation should not require more culpability
than a violation of the prohibition on cruel and unusual punishment. 3 09
303. BLACK'S LAW DICTIONARY 104 (6th ed. 1990).
304. Fagan, 22 F.3d at 1325 (Cowen, J., dissenting).
305. Id. (Cowen, J., dissenting).
306. See Parkway Garage, Inc.. v. City of Philadelphia, 5 F.3d 685, 692-93 & n.3 (3d Cir. 1991)
(finding record shows significant evidence that mayor "knew or reasonably disregarded the relevant
facts that disclosed that the garage was not in imminent danger of collapse when he summarily decided
to close it").
307. Brief of Respondents at *14-15, County of Sacramento v. Lewis, 523 U.S. 833 (1998) (No.
96-1337). available in 1997 WL 615765.
308. See, e.g., Estelle v. Gamble. 429 U.S. 97, 104 (1976) (finding deliberate indifference to
prisoner's medical needs constitutes "'unnecessary and wanton infliction of pain"' prohibited by
Eighth Amendment (citation omitted)).
309. Davidson v. Cannon, 474 U.S. 344, 358 (1986) (Blackmun. J., dissenting); Fagan, 22 F.3d at
1325 (Cowen, J., dissenting) (citing Justice Blackmun's dissent in Davidson).
CASE NOTES
2000]
d.
447
A Lesser Standard Will Not Turn Section 1983 into a "Font of Tort
Law, " but Will Allow More Plaintiffsto Reach a Fact-Finder
The reckless disregard or deliberate indifference standard is also stringent
enough that the Constitution will not become a "font of tort law." The Supreme
Court has noted in the past that "deliberate indifference" is an extremely high
and "stringent standard of fault."'3 10 By using the extremely high and stringent
standard of deliberate indifference, the courts will weed out enough claims so
that the resulting litigation is not burdensome to the courts, yet will allow a
reasonable enough standard to exist so that the claimants can present their case
to the fact-finder. The jury, or the court, then can consider all the facts and
surrounding circumstances of the pursuit and can, from that point on, determine
the reasonableness and the justifications for the officers' actions. Fact-finders
may determine that the officers are in every case justified in pursuing to the
point of death, alternatively, they may conclude in some situations that the
officers acted unjustifiably. But the standard of deliberate indifference, rather
than "shocks the conscience," will at least allow a jury to make this
determination.
C. Mere Word Play? The Reality Behind the Standardsand What Really Needs
to be Done:Implement More Training
Although the Court should hold that "reckless indifference" is the proper
level required for a substantive due process violation in police pursuits, it is
possible that to a police officer making split-second decisions in real-world
contexts, the difference between "reckless indifference" and "shocking to the
conscience" is mere word play. Realistically speaking, a heartier standard is not
likely to impact the decisions made by either pursuing officers or fleeing
suspects. The difference, in reality, may be negligible. If the courts truly are
hostile to the notion that police pursuits may violate due process, then the
standard chosen will make little difference in deterrence and the outcome of the
pursuits. The only thing it will impact is the right to recover.
A standard of reckless disregard, however, would allow for more postdeprivation remedies because more plaintiffs would be able to meet this lower
burden of proof. 31 1 More claims will be able to reach the jury, which should
make the ultimate decision about whether the officers were justified in chasing
with a reckless disregard for life and, if not, whether the victims should recover.
The potential impact of the Lewis decision, which.is to negate the possibility
of post-deprivation remedies, highlights what truly should be focused on in
regards to police pursuits: something should be done to reduce the number of
innocent citizens dying. The Court is unwilling to enforce a standard which
financially will impress upon individual police forces that changes need to be
made. The Court effectively has prevented a victim or a decedent's estate from
310. Board of County Comm'rs. v. Brown, 520 U.S. 397,410 (1997).
311. See supra Part IV.B.2.d for a discussion of how this lower standard would allow more
plaintiffs to receive relief.
48
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suing the police, the force, the city, or the county responsible for the officer and
his actions. Other systems, however, should be implemented in the wake of this
stifling decision.
The decision to pursue, and the subsequent decision to continue pursuing,
requires an officer to engage in a balancing test. It requires the officer to
consider the urgency of the suspect's immediate apprehension and his
subsequent risk to public safety if allowed to flee versus the weight of the risk of
safety to himself, the suspect, and other bystanders created by the pursuit.
In Lewis. the Supreme Court suggested that this balancing test is not one in
which an officer can engage under pressure. 31 2 According to the Lewis Court,
these life-threatening decisions are made under substantial pressure and in the
"heat of the moment;" therefore, common sense and reasoning may not be
readily available. It does not necessarily follow, however, that the existence of
substantial pressure prevents an average police officer from employing higher
reasoning skills that would enable him to make a decision about whether or not
to pursue. The Court's suggestion seems somewhat insulting to officers, who are
more experienced and more highly trained in reacting to high pressure situations
than the rest of the American public.
It is evident that "the propriety of a high speed pursuit must be determined
by balancing the law enforcement objectives to be served against the risks to
lives and safety that it might engender." 3 31 This balancing test is one which
officers have to engage in during the heat of the moment, an admittedly difficult
task.
In order for police to be better equipped to make these decisions, the
individual forces could implement more training. A reckless disregard standard
is one that is definable and explainable to officers. Police forces should
implement standards that include General Orders and outline situations in which
a decision to pursue is justified. 3 14 These Orders should serve as internal
312. See County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998) (finding such balancing must
be done instantly under great pressure and seldom with the luxury of second chance). The Court
stated that recognizing a substantive due process violation in circumstances where a police officer must
act "'in haste, under pressure, and frequently without the luxury of a second chance"' would be wrong.
Id. (quoting Whitley v. Albers, 475 U.S. 312, 320 (1986)). The Court determined that "[e]ven
precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that
implicates 'the large concerns of the governors and the governed."' Id. (citation omitted). The Court
continues by stating that the high-pressure circumstances in which the officer must make these lifethreatening decisions differ from the "luxury" of time enjoyed by other violators of substantive due
process. See id. (comparing time pressures police are under with periods of reflection available to
prison officials).
313. Avery, supra note 1, at 53.
314. See supra note 108 for an example of General Orders outlining when to pursue and when to
abandon pursuit. Additionally, the General Orders of the Sacramento County Police Department,
sued in Leivis, stated that an officer has a duty "to exercise that amount of care which, under all
circumstances, would not impose an unreasonable risk of harm upon others." Lewis v. County of
Sacramento, 98 F.3d 434, 441 n.6 (9th Cir 1996). The Orders also instruct officers to consider the
seriousness of the offense, whether it warrants a chase at speeds exceeding the posted limit, whether
the need to apprehend justifies a pursuit under existing conditions, and whether the pursuit creates
unreasonable hazards to life. Id. at 441-42 n.6. It mandates that upon initiating pursuit the officer
2000]
CASE NOTES
449
guidelines to govern actions. Also, decisions could be made by superiors or
dispatchers and dispersed to the officers, alleviating some pressure from the
pursuing officer who chases with adrenaline pumping and gets caught up in the
heat of the moment.
Without explanation and training, officers may be left with the impression
that they must pursue a suspect to the point of excessive force. This impression
is the wrong message to send. Although officers need full authority to carry out
their duties, this power should not lead to use of excessive force. The victims of
that excessive force must ultimately face the "shocks the conscience" standard.
The standard then prevents victims harmed by abuse through the excessive force
from obtaining relief.315 This should not be so.
The officers, after all, are the "good guys." The suspects flee; the officers
are doing their jobs and carrying out functions to maintain peace and order. In
doing so, however, the officers make decisions that impact the lives of everyone
around them. They engage in behavior that is not always rational or
explainable. 31 6 Sometimes it is even foolish, reckless, or "disturbing and lacking
in judgment."'317 Some of their chase practices are inherently dangerous.3 18 With
judicial hostility at an almost insurmountable level, the standard for due process
violations in the context of police pursuits should be one where the plaintiffs at
least are given a chance to get their stories to a fact-finder. Reckless disregard is
a high enough standard to conquer judicial hostility and increase the number of
allowable claims; it would allow proper post-deprivation remedies without
encouraging claimants to abuse the Constitution as a "font of tort law."
CONCLUSION
Police officers have extremely difficult and dangerous jobs. Broadly stated,
they have a duty to protect civilians from the evils of society and maintain peace
and order in the community. Cloaked with the authority of the government,
officers are authorized to do things under the guise of their badges that ordinary
citizens are not. The ability to pursue suspects is a necessary concomitant of the
job. High-speed pursuits are inherently dangerous. During pursuits, officers
endanger their own lives, the lives of the pursued, and the lives of other civilians
should radio in to dispatch. Id. at 442 n.6. It also states that the officer should voluntarily abort the
pursuit when "the hazards of continuing outweigh the benefits of immediate apprehension." Id. See
also Avery, supra note 1, at 53 (stating Sacramento Orders mandate various factors governing highspeed pursuits). The Ninth Circuit has held that violating police procedures is relevant to the
determination of a substantive due process violation. Fargo v. City of San Juan Bautista, 857 F.2d 638,
642 (9th Cir. 1988).
315. See generally DAVID KAIRYS, WITH LIBERTY AND JUsTICE FOR SoME 167-79 (1993)
(discussing how current Court has eviscerated due process rights through narrow interpretations of
Fourteenth Amendment).
316. See Avery, supra note 1, at 53 ("Many officers ... are not able to articulate their decisions to
begin or continue a pursuit .... This suggests that plaintiffs should attempt to make officers justify
their reasons for a chase as early as possible in the course of a suit.").
317. Temkin v. Frederick County Comm'rs., 945 F.2d 716,723 (4th Cir. 1991).
318. Avery, supra note 1,at 53.
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on the street.
In County of Sacramento v. Lewis,319 the United States Supreme Court
incorrectly held that the standard applicable to a plaintiff's claim of a substantive
due process violation in the context of police pursuits brought under section 1983
is conduct which "shocks the conscience," defined as intent to do harm. With
the history of judicial hostility to due process claims in this context and the
elevation of the applicable standard to one that is nearly impossible for plaintiffs
to meet, the Court has precluded post-deprivation recovery in almost every
conceivable situation. Instead, courts should use one of two alternative
standards: either the Fourth Amendment reasonableness standard, used in
Tennessee v. Garner, because high-speed police pursuits constitute a seizure
through use of deadly force, or a standard of reckless indifference because it is
less subjective and implicitly includes the required elements of deliberate or
arbitrary action. Regardless of the standard employed by the courts, police
forces should better train officers so that each officer knows whether to chase or
not to chase.
M. Amanda Racines
319. 523 U.S. 833.
COPYRIGHT INFORMATION
TITLE: Constitutional law--to chase or not to chase: what
"shocks the conscience" in high-speed police pursuits?
SOURCE: Temple Law Review 73 no1 Spr 2000
WN: 0010600412011
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