Evans v. Avery

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 95-2125

MARIE EVANS, p.p.a. MURIEL EVANS,
Plaintiff, Appellant,

v.

TERRACE AVERY, ET AL.,
Defendants, Appellees.

No. 95-2126

MURIEL EVANS AND BILLY EVANS,
Plaintiffs, Appellees,

v.

CITY OF BOSTON,
Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

[Hon. Robert B. Collings, U.S. Magistrate Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Boyle,* Senior District Judge.

Michael Avery, with whom Perkins, Smith & Cohen was on

brief, for plaintiffs.
Kevin S. McDermott, Assistant Corporation Counsel, with whom

Merita A. Hopkins, Corporation Counsel, was on brief, for

defendants.

November 20, 1996

*Of the District of Rhode Island, sitting by designation.

SELYA, Circuit Judge. These appeals require us to
SELYA, Circuit Judge.

revisit the legal standard which courts must apply to resolve a

claim that a police pursuit has been conducted in a manner

antithetical to the protections afforded by the substantive

aspect of the Due Process Clause. The question arises in the

context of a civil action brought against the City of Boston and

two of its police officers after a motor vehicle driven by a

suspected drug dealer fleeing from the police struck and injured

a youthful pedestrian, Marie Evans. The district court took

Evans' civil rights claims from the jury, and Evans now appeals

both the court's direction of a verdict in favor of the police

officers and its earlier grant of summary judgment in favor of

the City. At the same time, the City cross-appeals from a jury

verdict in favor of Evans' parents on a related state-law tort

claim. We affirm the judgment below in all respects.

I. BACKGROUND
I. BACKGROUND

We assess the facts of record in the light most

favorable to the plaintiffs. See, e.g., Veranda Beach Club Ltd.

Partnership v. Western Sur. Co., 936 F.2d 1364, 1375 (1st Cir.

1991) (elucidating standard of review for directed verdicts);

Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (same

re summary judgments). No further elaboration of the facts is

needed for disposition of the cross-appeal.

The events that fomented this lawsuit occurred in the

twinkling of an eye. At approximately 6:00 p.m. on August 12,

1992, officers Terrace Avery and John J. Greene were cruising

2

through a residential neighborhood in the Dorchester section of

Boston. They spotted suspicious activity at the intersection of

Nixon and Centre Streets: an individual who appeared to be

startled at their presence yelled excitedly, threw a paper bag

through the open window of a parked Oldsmobile, and vaulted into

the front passenger seat. The driver immediately headed west on

Centre St. at 20-25 m.p.h. Greene decided to stop the automobile

and detain its occupants. He executed a U-turn, set out after

the Oldsmobile, and activated his siren and wig-wag lights.

Instead of stopping, the suspects' car accelerated. The officers

took up the chase in earnest, travelling at roughly 45 m.p.h.

When the officers observed the occupants of the Oldsmobile

placing small items in their mouths and passing a jug back and

forth, they concluded that the suspects were swallowing potential

evidence.

As the Oldsmobile approached Codman Square a complex

intersection at which Centre St., Washington St., Norfolk St.,

and Talbot Ave. meet it crossed to the wrong side of the road,

passed three cars waiting at a red light, and turned left on

Washington St., travelling as fast as 50 m.p.h. The officers

remained close behind. Approximately 300 feet from Codman

Square, the suspects' vehicle struck a ten-year-old girl, Marie

Evans, who was attempting to cross Washington St. Greene stopped

his car and Avery alighted to assist the victim. Greene then

continued his pursuit of the Oldsmobile. The entire incident

lasted no more than two minutes.

3

The plaintiffs' evidence shows that traffic was heavy

at the time of the chase and that numerous pedestrians were

about. Both Greene and Avery were familiar with Codman Square

and knew that it was a busy shopping venue adjacent to a densely

populated residential area. They also knew that Centre St.

affords limited visibility of the Codman Square intersection.

Marie Evans sued the officers pursuant to 42 U.S.C.

1983 (1994); she sued the City pursuant to the same statute; and

she and her parents, Muriel and Billy Evans, sued the City under

Mass. Gen. L. ch. 258, 2 (1988).1 The district court (Young,

U.S.D.J.) granted summary judgment in favor of the City on Evans'

section 1983 claim. Ruling ore tenus, the court determined that

1The statute provides in relevant part:

Public employers shall be liable for
injury or loss of property or personal injury
or death caused by the negligent or wrongful
act or omission of any public employee while
acting within the scope of his office or
employment, in the same manner and to the
same extent as a private individual under
like circumstances, except that public
employers shall not be liable . . . for
punitive damages or for any amount in excess
of one hundred thousand dollars. The
remedies provided by this chapter shall be
exclusive of any other civil action or
proceeding by reason of the same subject
matter against the public employer or, the
public employee . . . whose negligent or
wrongful act or omission gave rise to such
claim, and no such public employee . . .
shall be liable for any injury or loss of
property or personal injury or death caused
by his negligent or wrongful act or omission
while acting within the scope of his office
or employment; . . . .

Mass. Gen. L. ch. 258, 2 (1988).

4

the plaintiff had failed to adduce evidence sufficient to prove a

policy or custom of deliberate indifference attributable to the

City. The parties thereafter consented to trial before a

magistrate judge. See 28 U.S.C. 636(c) (1994); Fed. R. Civ. P.

73(a). At the conclusion of the evidence, the court (Collings,

U.S.M.J.) took the remaining section 1983 claim from the jury and

granted the officers' motions for judgment as a matter of law.

See Evans v. Avery, 897 F. Supp. 21 (D. Mass. 1995). The jury

then considered the pendent claims and awarded damages to Evans

and each of her parents in the amount of $100,000 (the per

claimant maximum allowable under state law, see supra note 1).

These appeals followed.

II. THE SECTION 1983 CLAIM AGAINST THE OFFICERS
II. THE SECTION 1983 CLAIM AGAINST THE OFFICERS

Marie Evans asserts that the nisi prius court erred in

directing a verdict for the police officers. She argues, in the

alternative, that the court applied the wrong legal standard, and

that, whatever legal standard obtains, the evidence established a

jury question as to whether the officers' conduct violated her

right to substantive due process.

Section 1983 supplies a private right of action against

a person who, under color of state law, deprives another of

rights secured by the Constitution or by federal law. Evans'

mishap involved neither physical contact with a police officer

nor police action directed at her. In short, it was not a

seizure and it was therefore not in derogation of her Fourth

Amendment rights. See Brower v. County of Inyo, 489 U.S. 593,

5

596-97 (1989) (distinguishing between police action directed

toward producing a particular result and police action that

happens to cause an unintended, if foreseeable, result and

holding that only the former can constitute a seizure); Landol-

Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir. 1990) ("It is

intervention directed at a specific individual that furnishes the

basis for a Fourth Amendment claim."). Nevertheless, even

outside the context of a seizure, appellate courts have noted

that a person injured as a result of police misconduct may

prosecute a substantive due process claim under section 1983.

See, e.g., Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882

F.2d 1398, 1408 n.10 (9th Cir. 1989), cert. denied, 494 U.S. 1016

(1990); see also Landol-Rivera, 906 F.2d at 796 (assuming

proposition). The initial question that confronts us concerns

the legal standard by which the officers' conduct should be

judged in such instances.

We begin with an historical perspective. In Landol-

Rivera we ruled that police officers who were engaged in hot

pursuit of a suspect could not be held liable under the

substantive aspect of the Due Process Clause for the shooting of

a hostage. 906 F.2d at 798. We premised that ruling on a

determination that the officers' conduct did not reflect a

reckless or callous indifference to the hostage's rights. See

id. at 796-98. Two things about this articulation of the

applicable legal standard are noteworthy. In the first place,

our use of the "deliberate indifference" test did not broach new

6

ground, but, rather, reflected a fairly straightforward

application of our earlier holding in Germany v. Vance, 868 F.2d

9 (1st Cir. 1989), in which we posited that reckless or callous

indifference to an individual's rights is a necessary predicate

to triggering the substantive protections of the Due Process

Clause. See id. at 17-19.2 In the second place, Landol-Rivera

did not presume to undertake a full formulation of the test

applicable to substantive due process claims in creation of

danger cases; instead, the court went only as far as was needed

to show the infirmity of the particular claim before it.3

After this court decided Landol-Rivera, the Justices

revisited the jurisprudence of substantive due process in Collins

v. City of Harker Heights, 503 U.S. 115 (1992). In that case,

the widow of an asphyxiated sanitation department employee

2Our decision in Germany responded to the Supreme Court's

invitation in Daniels v. Williams, 474 U.S. 327 (1986). There,

the Court held that mere negligence is insufficient to implicate
the substantive protections of the Due Process Clause but left
open the question of whether something less than intentional
conduct might be enough to trigger those protections. See id. at

334 n.3.

3In Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 582 (1st

Cir. 1989), we upheld a section 1983 substantive due process
claim under the "reckless or callous indifference" standard.
There, four armed plainclothes police officers approached a car
occupied by a young couple admiring the view at a secluded spot.
When the swain saw the unidentified men, he started his car and
began to drive away. Without warning, the officers opened fire
and severely injured him. See id. at 557. Because the parties

in Gutierrez-Rodriguez tried the case on the assumption that

"reckless and callous indifference" constituted the rule of
decision for section 1983 substantive due process claims and
argued in the same vein on appeal we had no occasion to address
whether anything beyond that standard might be required. In all
events, the behavior exhibited by the police in Gutierrez-

Rodriguez would shock even an unusually jaded conscience.

7

claimed that her deceased husband had "a constitutional right to

be free from unreasonable risks of harm to his body, mind and

emotions and a constitutional right to be protected from the

[city's] custom and policy of deliberate indifference toward the

safety of its employees." Id. at 117. Noting its traditional

reluctance "to expand the concept of substantive due process,"

id. at 125, the Court recharacterized the plaintiff's "deliberate

indifference" claim to include an additional element, namely,

"that the city's `deliberate indifference' to Collins' safety was

arbitrary government action that . . . `shock[s] the conscience'

of federal judges." Id. at 126. The Court reiterated this

standard when it determined that the city's alleged failure to

train or warn its employees was not actionable as a substantive

due process violation because the city's conduct could not "be

characterized as arbitrary, or conscience shocking, in a

constitutional sense." Id. at 128. Rather, the Court held

petitioner's claim to be "analogous to a fairly typical state-law

tort claim," and noted that it had "previously rejected claims

that the Due Process Clause should be interpreted to impose

federal duties that are analogous to those traditionally imposed

by state tort law." Id.

Since Collins was decided in 1992, two of our sister

circuits, faced with the need to construct a template for

substantive due process claims arising out of the state's

creation of danger, have held squarely that the "shock the

conscience" rubric furnishes the appropriate test. The Third

8

Circuit, sitting en banc, adopted this standard in a police

pursuit case. See Fagan v. City of Vineland, 22 F.3d 1296, 1306-

07 (3d Cir. 1994) (en banc) ("In light of the Supreme Court's

unanimous adherence to the `shocks the conscience' test in

Collins, the reckless indifference of government employees is an

insufficient basis upon which to ground their liability for a

police pursuit under the Due Process Clause."). In a different

factual context, the Tenth Circuit relied on Collins for the

proposition that the "shock the conscience" test governs

substantive due process claims in all creation of danger cases.

See Uhlrig v. Harder, 64 F.3d 567, 571 (10th Cir. 1995), cert.

denied 116 S. Ct. 924 (1996). Moreover, at least two other

courts of appeals, anticipating Collins, adopted the "shock the

conscience" standard in police pursuit cases prior to 1992 (and

still adhere to it). See Temkin v. Frederick County Comm'rs, 945

F.2d 716, 723 (4th Cir. 1991), cert. denied, 502 U.S. 1095

(1992); Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986). To be

sure, the position taken by these courts is not uncontroversial.

Judge Cowen wrote a vociferous dissent in Fagan, 22 F.3d at 1309,

and the Ninth Circuit recently rejected the "shock the

conscience" test, Collins notwithstanding. See Lewis v.

Sacramento County, F.3d , (9th Cir. 1996) [1996 WL

577835 at *5] (holding that deliberate indifference or reckless

disregard "is the minimum required to sustain a 1983 claim in

the context of a high-speed police pursuit").

We are persuaded that the majority view of the minimum

9

threshold in cases like this is correct.4 Accordingly, we hold

that police officers' deliberate indifference to a victim's

rights, standing alone, is not a sufficient predicate for a

substantive due process claim in a police pursuit case. Rather,

in such a case, the plaintiff must also show that the officers'

conduct shocks the conscience. Though that benchmark is mandated

for creation of danger cases under the fairest reading of

Collins, we add that it is particularly appropriate to measure

police pursuits in that way. Police chases are not only a

necessary concomitant of maintaining order in our modern society,

but they are also inherently hazardous. By their very nature,

they inevitably create some risk of injury to bystanders.

Officers must decide the balance between law enforcement and risk

to public safety quickly and while under considerable pressure.

In such circumstances, permitting the Due Process Clause to serve

as a surrogate for state tort law would hamstring the police in

their performance of vital duties.

We think, moreover, that this standard is not

inconsistent with, but is merely a refinement of, Landol-Rivera.

As in Landol-Rivera, a plaintiff is still required to show the

police officers' deliberate indifference to his rights. The

plaintiff in Landol-Rivera could not clear this hurdle, so we had

4We refuse to follow Lewis because we believe that the panel

paid insufficient attention both to Collins and to the legitimate

demands of law enforcement when it asserted, without engaging in
any analysis, that "deliberate indifference is always sufficient"
to maintain a section 1983 substantive due process action.
Lewis, F.3d at [1996 WL 577835 at *5].

10

no occasion to explore whether any further hurdle blocked his

path.5 Today, we move forward and hold that in order for a high-

speed police pursuit to intrude upon substantive due process

protections, the officers' conduct must not only manifest

deliberate indifference to the plaintiff's rights, but must also

shock the conscience.

Having clarified the applicable legal standard, we need

not tarry. The evidence of record here, taken in the light most

salutary to Evans' case, does not satisfy the "shock the

conscience" test. The chase was brief in duration, lasting no

more than two minutes. It covered about half a mile. The

vehicles' speeds never exceeded 50 m.p.h. The officers had good

cause to believe that the suspects were trafficking in cocaine.

Though Evans is not bereft of talking points the pursuit

occurred in a densely populated residential area at a time when

5Even if, as Evans urges, Landol-Rivera announced a broadly

applicable rule to the effect that deliberate indifference is the
be-all in creation of danger cases a proposition that we do not
accept Evans would not be helped. While under ordinary
circumstances we would be bound to follow a predecessor panel's
lead, see, e.g., Jusino v. Zayas, 875 F.2d 986, 993 (1st Cir.

1989) (explaining that in a multi-panel circuit, newly
constituted panels customarily are bound by prior panel decisions
closely in point), there is a well-recognized exception to the
rule for situations in which a panel opinion is undercut by
controlling authority, subsequently announced. See, e.g., Stella

v. Kelley, 63 F.3d 71, 74 (1st Cir. 1995) (refusing to follow

Unwin v. Campbell, 863 F.2d 124 (1st Cir. 1988), in light of

Johnson v. Jones, 115 S. Ct. 2151 (1995)); United States v.

Bucuvalas, 909 F.2d 593, 594 (1st Cir. 1990) (overruling United

States v. Bosch Morales, 677 F.2d 1 (1st Cir. 1982), in light of

United States v. Powell, 469 U.S. 57 (1984)). If Landol-Rivera

were to be read in the manner urged by Evans, the Supreme Court's
subsequent decision in Collins would require us to invoke the

exception here.

11

people would likely be ambling about, and the officers did not

seriously consider alternatives to hot pursuit these points,

taken most favorably to Evans, add up to no more than possible

negligence. Considering the totality of the circumstances, we do

not believe that either the officers' decision to pursue the

apparent perpetrators of a serious offense or their actions

during the chase were so raw as to shock the conscience of a

reasonable factfinder.

A comparison of the facts of this case to those of

other police pursuit cases in which the officers' behavior has

been held not to shock the conscience fortifies our conclusion.

For example, Fagan involved a lengthy pursuit at speeds up to 80

m.p.h. through a plethora of red lights. See Fagan, 22 F.3d at

1299-1300. Similarly, Temkin, 945 F.2d at 718, involved a police

officer who pursued an individual suspected of stealing $17 worth

of gasoline at speeds up to 105 m.p.h. on a narrow, two-lane

highway, with the result that both the police cruiser and the

pursued vehicle struck the plaintiff. The Fourth Circuit held

that the officer's conduct, "while disturbing and lacking in

judgment," did not transgress the "shock the conscience"

standard. Id. at 723. The actions of the officers in those

cases were far more egregious than the actions of officers Avery

and Greene. Although the "shock the conscience" test is not

mathematically precise, the imprecision occurs at the edges and

this case, fairly viewed, does not present a close call.

To sum up, "shock the conscience" is the standard that

12

guides our decision, and the conduct of officers Avery and Greene

when measured against that benchmark is manifestly insufficient

to support a substantive due process claim. We therefore reject

Marie Evans' principal assignment of error.

III. THE SECTION 1983 CLAIM AGAINST THE CITY
III. THE SECTION 1983 CLAIM AGAINST THE CITY

Evans next argues that the district court erred in

granting summary judgment on her section 1983 claim against the

City of Boston. She asserts that the City exhibited deliberate

indifference to individual rights both through its failure to

monitor police pursuits and through its failure to supervise

police officers involved in such pursuits. We need not probe

Evans' charge that the City's policies were inadequate in these

respects. As we explain below, the fact that Avery and Greene

did not violate Evans' constitutional rights means that the City

is not liable to her under section 1983.

This result is compelled by the Supreme Court's

decision in City of Los Angeles v. Heller, 475 U.S. 796 (1986)

(per curiam). In that case, the plaintiff sued a police officer

for making an arrest with excessive force and without probable

cause; he also sued the officer's employer, the City of Los

Angeles, for promulgating a constitutionally deficient policy in

regard to police officers' use of force. The jury found for the

officer but against the municipality. The district court entered

judgment for the gendarme but overrode the second part of the

jury's verdict and dismissed the claim against the city. The

court of appeals reversed the order of dismissal but did not

13

disturb the judgment that had been entered in the officer's

favor. See Heller v. Bushey, 759 F.2d 1371, 1376 (9th Cir.

1985). The city then appealed. The Supreme Court reinstated the

dismissal, declaring that it had never

authorize[d] the award of damages against a
municipal corporation based on the actions of
one of its officers when in fact the jury has
concluded that the officer inflicted no
constitutional harm. If a person has
suffered no constitutional injury at the
hands of the individual police officer, the
fact that the departmental regulations might
have authorized the use of constitutionally

excessive force is quite beside the point.

Heller, 475 U.S. at 799 (emphasis in original).

While Heller provides a durable basis for determining

that a municipality cannot be liable under section 1983 for an

inadequate public safety policy in a situation where, as here,

the officers whose actions actually caused the harm have been

exonerated at trial, we note that a panel of the Third Circuit

found Heller inapplicable in a case much like this one. In Fagan

v. City of Vineland, 22 F.3d 1283 (3d Cir. 1994) (panel opinion),

the court stated that "in a substantive due process case arising

out of a police pursuit, an underlying constitutional tort can

still exist even if no individual police officer violated the

Constitution." Id. at 1292.6 The court reasoned that the claim

against the officers and the claim against the municipality were

based on two different theories: the officers would be liable if

their conduct "shocked the conscience," while the city would be

6When the Third Circuit subsequently reheard Fagan en banc,

22 F.3d 1296, it did not review this aspect of the panel opinion.

14

liable if its policymakers, acting with deliberate indifference,

implemented a policy that encouraged the officers to conduct an

unsafe pursuit. Id. Evans invites us to adopt this analysis.

We decline the invitation because we believe that the Fagan panel

improperly applied the Supreme Court's teachings.

In Collins, the Court emphasized that

proper analysis requires us to separate two
different issues when a 1983 claim is
asserted against a municipality: (1) whether
plaintiff's harm was caused by a
constitutional violation, and (2) if so,
whether the city is responsible for that
violation.

Collins, 503 U.S. at 120. The Fagan panel described the

"deliberate indifference" test as a "different theor[y]" for

municipal liability, 22 F.3d at 1292, but the "deliberate

indifference" test is not an independent theory at all. Rather,

deliberate indifference is merely an articulation of the second

prong of the Collins framework, adapted to "policy and custom"

cases. In treating it as a separate theory, the Fagan panel

ignored the first segment of the framework: the requirement that

the plaintiff's harm be caused by a constitutional violation.

See Thompson v. Boggs, 33 F.3d 847, 859 n.11 (7th Cir. 1994)

(rejecting the holding of the Fagan panel opinion), cert. denied,

115 S. Ct. 1692 (1995); see also Mark v. Borough of Hatboro, 51

F.3d 1137, 1153 n.13 (3d Cir.) (questioning the analysis

contained in the Fagan panel opinion), cert. denied, 116 S. Ct.

165 (1995). Consequently, we follow Heller's clear rule and hold

that the City cannot be held liable absent a constitutional

15

violation by its officers. See de Feliciano v. de Jesus, 873

F.2d 447, 449 (1st Cir.), cert. denied, 493 U.S. 850 (1989).

IV. THE CROSS-APPEAL
IV. THE CROSS-APPEAL

The City of Boston appeals the jury's verdicts for loss

of consortium in favor of Muriel and Billy Evans (Marie Evans'

parents). It advances a single isthmian ground in support of its

cross-appeal, arguing that the trial court erred in formulating a

jury instruction.

We frame the assignment of error. Over the City's

objection, the lower court instructed the jury that state law

limited the damages that could be awarded on each claim to

$100,000. See supra note 1. The City argues that this

instruction was unfairly prejudicial inasmuch as it "caused the

jury to decide the amount of damages on emotion." The City's

premise is that, once the jury knew of the cap, it realized that

it could not fully compensate Marie Evans for her extremely

severe injuries and therefore decided to circumvent the

statutory impediment by remunerating Marie's family as generously

as possible.7

This asseveration lacks merit. Neither the

Massachusetts statute nor the cases discussing it prohibit such

an instruction, and the City cites no case from any jurisdiction

which holds that in such circumstances a trial court abuses its

7Marie Evans presented testimony indicating that her damages
may have totalled as much as $2,000,000. The jury, apparently
heedful of the magistrate's instructions concerning the statutory
cap, awarded her $100,000. The City has not appealed that
verdict.

16

discretion by informing a jury of a statutory cap on damages.8

To the contrary, the cases upon which the City relies stand for

nothing more than the proposition that a trial court does not

abuse its discretion in refusing to inform the jury of such a

limit. See, e.g., Thompson v. Sanford, 663 S.W.2d 932, 935

(Ark. 1984); State v. Bouras, 423 N.E.2d 741, 744 (Ind. App.

1981).

The wisdom of telling a jury about such a statutory

limitation is debatable, and we do not recommend the practice.

Still, we customarily cede wide discretion to trial courts to

fashion jury instructions as they see fit, see United States v.

Houlihan, 92 F.3d 1271, 1299 n.31 (1st Cir. 1966); Putnam

Resources v. Pateman, 958 F.2d 448, 462 (1st Cir. 1992), and we

see no reason to second-guess the court in this instance.

This conclusion is reinforced by other incidents of the

case at hand. For one thing, the awards to the parents are amply

supported by evidence in the record and almost none of this

evidence has been contradicted. For another thing, after

properly instructing the jurors on loss of consortium, the

magistrate told them that "[t]he claims for Muriel and Billy

Evans for loss of consortium are separate claims and each is to

be judged separately." Jurors are presumed to follow the court's

8This is not a case like Sasaki v. Class, 92 F.3d 232 (4th

Cir. 1996), in which the trial court, though forbidden by statute
from informing the jury of a cap on damages, nonetheless allowed
counsel to do so. See id. at 235-37 (remanding for a new trial

due to a violation of 42 U.S.C. 1981a(c)(2)). Here, the
Massachusetts legislature wrote a statute that is silent on this
point, and we decline to speak for it.

17

instructions, see Houlihan, 92 F.3d at 1287; United States v.

Rivera-Gomez, 67 F.3d 993, 999 (1st Cir. 1995), and the City has

not offered sufficient justification for overcoming this

presumption. In the last analysis, the City's claim that the

mere mention of the statutory cap inspired the jury to ignore the

charge and instead do rough remedial justice is wholly

speculative.

V. CONCLUSION
V. CONCLUSION

We need go no further. In a police pursuit case not

involving a seizure, the officers may be held liable on the basis

of substantive due process only if their actions (whether or not

reckless or deliberately indifferent to public safety) shock the

conscience. Here, Marie Evans' injuries are not the result of

conscience-shocking conduct on the part of officers Avery or

Greene. Section 1983 therefore provides no remedy against them

(or against the City of Boston, for that matter).9

No error appearing, the judgment below will be

Affirmed. All parties shall bear their own costs.
Affirmed. All parties shall bear their own costs.

9We emphasize that we are asked to determine as a matter of
federal law only whether Marie Evans has a constitutional right
to recover damages under the Due Process Clause. The questions
of whether or to what extent she may maintain a suit under state
tort law must be answered according to that body of law. The
Commonwealth of Massachusetts has chosen to provide only a
limited tort remedy, and, though that choice has a very harsh
result here, we must recognize the state's suzerainty in its
legitimate province. It is not the function of a federal court
to force state tort law into unfamiliar contours under the guise
of constitutional interpretation.

18