United States Court of Appeals
For the First Circuit
No. 01-1301
JAMES W. CUMMINGS AND DEBORAH CUMMINGS,
Plaintiffs, Appellants,
v.
POLICE OFFICER ALLEN MCINTIRE,
POLICE CHIEF MICHAEL CHITWOOD,
AND THE CITY OF PORTLAND,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Circuit Judge,
Coffin, Senior Circuit Judge,
and Young,* District Judge.
Michael J. Waxman for appellants.
Mark E. Dunlap, with whom Norman, Hanson & DeTroy was on
brief, for appellees.
*Of the District of Massachusetts, sitting by designation.
November 16, 2001
COFFIN, Senior Circuit Judge. Appellant James Cummings
brought this suit under 42 U.S.C. § 1983 claiming that his right
to substantive due process was violated when appellee Allen
McIntire, an on-duty police officer, allegedly struck him
unjustifiably as Cummings asked for street directions. The
district court granted summary judgment for all defendants.1 It
concluded that McIntire's conduct - though deplorable,
unprofessional and offensive - did not "shock the conscience,"
and thus fell short of establishing a constitutional violation.
We affirm.
I. Factual Background
1 The suit was brought by Cummings and his wife, Deborah,
against McIntire, Portland Police Chief Michael Chitwood, and
the City of Portland. The magistrate judge recommended granting
summary judgment for the city and police chief, but concluded
that the case should go forward against McIntire. Cummings did
not oppose the portion of the recommended decision dismissing
the case against the city and police chief, and the district
court's adoption of the magistrate judge's recommendation on
those parties is thus unreviewable. See Fed. R. Civ. P. 72(a);
28 U.S.C. § 636(b)(1). Deborah Cummings did not submit argument
on the district court's dismissal of her loss of consortium
claim, and so we do not consider it, either. See Fletcher v.
Town of Clinton, 196 F.3d 41, 55 (lst Cir. 1999). We also do
not separately discuss Cummings' state civil rights claim
because the parties agree that the outcome is the same under
either federal or Maine law. This opinion therefore addresses
only Cummings' federal substantive due process claim against
McIntire.
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The relevant facts are essentially undisputed for purposes
of our review,2 which is de novo. See Underwriters at Lloyd's
v. Labarca, 260 F.3d 3, 7 (lst Cir. 2001). On the morning of
October 4, 1998, appellee McIntire was assigned with two other
uniformed officers to direct traffic at an intersection in
Portland, Maine, that was along the route of a road race taking
place that day. The corner, where Washington and Ocean avenues
cross, was a hectic scene of heavy traffic activity. The
officers periodically needed to stop cars or runners; they
sometimes allowed both vehicles and runners to move through at
the same time and at other times stopped all lanes of traffic to
allow the runners to pass. At about 9:20 a.m., appellant
Cummings arrived at the intersection looking for Arcadia Street.
When he encountered the race, he drove into the parking lot of
a nearby convenience store and got out of his car to ask a
volunteer for directions. She was busy with the race and
unfamiliar with Arcadia Street, and so she directed him to
Officer McIntire. Cummings approached the officer, who had
stopped cars and was looking right to left to check traffic as
runners started to come through the intersection. The district
2 Defendants reserved the right to dispute the plaintiffs'
version of the facts if the case proceeded to trial.
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court, borrowing from the factual summary prepared by the
magistrate judge, described the ensuing events as follows:
The officer . . . essentially [had his] back to
Cummings, with his head swiveling watching the traffic
and runners. Cummings moved only a step forward and
began to ask the officer for directions. From behind,
Cummings said, "Excuse me sir," waited for perhaps two
seconds and repeated, "Excuse me, sir." When no
traffic was moving and it was perfectly quiet,
Cummings began to ask his question, holding his right
arm out straight from his body at approximately a
forty-five degree angle. Cummings was standing
approximately four feet away from the officer.
To describe what happened next, the district court quoted
Cummings' affidavit:
18. Before I could complete my question, Officer
McIntire turned towards me and shoved me hard toward
the far curb of Washington Avenue.
19. As Officer McIntire shoved me, he was
verbally abusive to me. He yelled "IF YOU DON'T HAVE
A GODAMMED [sic] EMERGENCY GET THE HELL OUT OF HERE."
20. The force of the blow propelled me backwards
and I twisted violently in an effort to maintain my
balance.
Cummings did not fall, but reported that he suffered immediate
pain in his left back and left leg and foot. A pre-existing
medical condition made his neck vulnerable to fracture and
herniation, and he alleged that as a result of McIntire's shove
he underwent back surgery and has since "suffered stabbing pain,
and permanent impairment."
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Cummings subsequently filed this action alleging deprivation
of his right to be free from the use of excessive and
unreasonable force pursuant to the Fifth and Fourteenth
Amendments to the United States Constitution and analogous Maine
constitutional provisions.
The magistrate judge concluded that McIntire's alleged behavior
was sufficiently egregious that a jury would be permitted to
find that it "shocked the conscience," but he found no
evidentiary basis for holding either the police chief or the
city responsible for McIntire's conduct.
The district court agreed that McIntire's behavior deserved
censure, but disagreed with the magistrate judge's legal
conclusion. He termed the conduct "deserving of discipline,"
but stated that it does not "'shock the conscience' in the way
the Supreme Court or the First Circuit has used those terms."
The court therefore granted summary judgment for all defendants
on all claims. As explained earlier, see note 1 supra, only the
substantive due process claim against McIntire is before us.
II. Discussion
Claims of excessive force by a police officer arising
outside the context of a seizure, and thus outside the Fourth
Amendment, are analyzed under substantive due process
principles. See County of Sacramento v. Lewis, 523 U.S. 833, 843
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(1998); Evans v. Avery, 100 F.3d 1033, 1036 (lst Cir. 1996).
The dispositive question in such an analysis is whether the
challenged conduct was so extreme as to "shock the conscience."
Lewis, 523 U.S. at 846-47; Hasenfus v. LaJeunesse, 175 F.3d 68,
72 (lst Cir. 1999).
Various formulations have been used to identify conduct
sufficiently outrageous to meet that standard, which
deliberately was set high to protect the Constitution from
demotion to merely "a font of tort law," Lewis, 523 U.S. at 847
n.8, 848 (quoting Daniels v. Williams, 474 U.S. 327, 332
(1986)). Courts have held that the acts must be "such as 'to
offend even hardened sensibilities,'" Johnson v. Glick, 481 F.2d
1028, 1033 n.6 (2d Cir. 1973) (citation omitted), "uncivilized[]
and intolerable," Hasenfus, 175 F.3d at 72, "offensive to human
dignity," Rochin v. California, 342 U.S. 165, 174 (1952), or
must constitute force that is brutal, inhumane, or vicious, id.;
Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th
Cir. 1996).
This is obviously not a standard with precise boundaries,
but in its lengthy discussion of substantive due process in
Lewis the Supreme Court noted certain uniform principles that do
operate: negligent conduct is "categorically beneath the
threshold of constitutional due process," while "behavior at the
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other end of the culpability spectrum," i.e., "conduct intended
to injure in some way unjustifiable by any government interest,"
is most likely to support a substantive due process claim. 523
U.S. at 849. 3 When the culpability resulting in injury falls
somewhere between these extremes, it is "a matter for closer
calls," id., and whether conduct is actionable as a due process
violation will depend upon the context in which it occurs:
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.
Id. at 850.
The Court illustrated the importance of context by
contrasting normal pretrial custody with high-speed law
enforcement chases. In the case of a sudden pursuit, with
virtually no opportunity for officers to deliberate, much more
outrageous behavior would be tolerated than in the typical
prison setting, where "forethought about an inmate's welfare is
not only feasible but obligatory." Id. at 851. Accordingly,
"mid-level" fault, such as recklessness or deliberate
3 The Court noted that "the constitutional concept of
conscience-shocking duplicates no traditional category of
common-law fault, but rather points clearly away from liability,
or clearly toward it, only at the ends of the tort law's
spectrum of culpability." Lewis, 523 U.S. at 848.
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indifference, is insufficient for due process liability in
circumstances demanding instant judgment; to obtain redress in
a sudden pursuit case, the Court held, a plaintiff must show
"intent to harm suspects physically or to worsen their legal
plight." Id. at 854. By contrast, deliberate indifference may
be enough to shock the conscience where the claim arises from
the state's alleged failure to provide those in its custody,
say, a prisoner, with decent care and protection. Id. at 851-
52.
This is a case whose factual context falls within the middle
ground, neither so tense and rapidly evolving as a high-speed
police pursuit nor so unhurried and predictable as the ordinary
custodial situation. Some courts approach such cases by
assessing the facts pursuant to a test formulated by Judge
Friendly in Johnson, 481 F.2d at 1033, with which we
substantially agree:
In determining whether the constitutional line has
been crossed, a court must look to such factors as the
need for the application of force, the relationship
between the need and the amount of force that was
used, the extent of injury inflicted, and whether
force was applied in a good faith effort to maintain
or restore discipline or maliciously and sadistically
for the very purpose of causing harm.
See, e.g., Neal v. Fulton County Bd. of Educ., 229 F.3d 1069,
1076 (11th Cir. 2000); Petta v. Rivera, 143 F.3d 895, 902 (5th
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Cir. 1998); Thompson v. Olson, 798 F.2d 552, 558-59 (lst Cir.
1986).
Appellant argues that liability should attach because
Officer McIntire's conduct was at the most reprehensible end of
the culpability spectrum; he claims that the shove bespoke an
intent to injure that lacked justification. Because such intent
suffices to support constitutional liability against officers in
even the most stressful circumstances, appellant claims that the
district court erred in dismissing his claim.
We are constrained to conclude otherwise. While there is
no doubt that McIntire unnecessarily utilized physical force, we
agree with the district court that the record does not permit a
finding that he did so "maliciously and sadistically for the
very purpose of causing harm," Johnson, 481 F.2d at 1033. At
the time he acted, McIntire was juggling drivers and runners in
a busy location, swiveling his head to be sure no problems
arose.4 In such circumstances, a hard shove accompanied by
abusive language, whose evident purpose – as even appellant
acknowledges – was to get Cummings out of the way,5 does not in
4Although the cars were stopped when appellant approached
McIntire, the officer was still obliged to be alert to the
traffic and joggers.
5 In his brief, Cummings notes that McIntire intended to
strike him with sufficient force "so as to propel [appellant]
out of his space and to send a sharp message about what
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our view constitute the "brutal" and "inhumane" conduct
necessary to establish a due process violation.
The Due Process Clause is intended to prevent government
officials "from abusing [their] power, or employing it as an
instrument of oppression," Lewis, 523 U.S. at 846 (internal
citation omitted); here, the officer's action was reactive
rather than reflective, seemingly inspired by a "careless or
unwise excess of zeal" in communicating his displeasure with
Cummings' interruption, rather than by a purpose to harm. See
Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981). It
is true that appellant suffered a severe injury. The severity
of the injury in the ordinary case may be a fair proxy for
egregious behavior leading to liability, as Johnson suggests. It
is not so much here because plaintiff had an unusual medical
condition, making him peculiarly vulnerable.6 Cf. Shillingford,
634 F.2d at 266 (finding constitutional liability where police
officer struck plaintiff in the face with a nightstick, even
though only minor injury occurred, because it was "merely
consequences would flow from further interference."
6Cummings disputed the assertion in defendants' Statement
of Material Facts that he required surgery "[a]s a result of a
chronic preexisting condition," but stated in his affidavit that
he had undergone cervical spine fusion in 1990 and, as a result,
his neck was "vulnerable to fracture, herniation, and to being
paralyzed." In his brief, Cummings states that he "just happens
to be an eggshell skulled plaintiff."
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fortuitous" that the results of the attack were not
"crippling").7
A look at the facts underlying other substantive due process
claims helps place this case into perspective and reinforces our
conclusion that McIntire's conduct was not of constitutional
dimension. Among the cases in which plaintiffs have prevailed8
are those involving a student blinded in one eye when a coach
intentionally struck him in the head with a metal weight, see
Neal, 229 F.3d at 1076; a teacher's fabrication of sexual abuse
charges against a father, resulting in loss of contact with his
child for three years, see Morris v. Dearborne, 181 F.3d 657,
668 (5th Cir. 1999); rape by a police officer in connection with
a car stop, see Rogers v. City of Little Rock, 152 F.3d 790, 797
(8th Cir. 1998); a 57-day unlawful detention in the face of
repeated requests for release, see Armstrong v. Squadrito, 152
F.3d 564, 582 (7th Cir. 1998); police officers aiding a third-
party in shooting the plaintiff, see Hemphill v. Schott, 141
F.3d 412, 419 (2d Cir. 1998); an intentional assault by a police
officer who struck a pretrial detainee twice in the head and
threatened to kill him, see Johnson, 481 F.2d at 1029-30; and a
7 If liability were established, the extent of injury would
be relevant to damages.
8 These cases do not address ultimate liability; they review
dismissals or grants of summary judgment in favor of defendants.
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principal forcing his way into a room where a student was
hiding, grabbing her from the floor, throwing her against the
wall, and slapping her, see Webb v. McCullough, 828 F.2d 1151,
1159 (6th Cir. 1987). The conduct in these cases, involving
serious physical intrusions or sustained abuse, differs markedly
from McIntire's isolated, intemperate outburst.
The encounter here has much more the feel of those cases in
which courts have rejected due process claims, notwithstanding
the contemptible conduct at issue. Defendants prevailed where
police officers allegedly engaged in months of harassment and
intimidation and pushed one plaintiff, who suffered a
miscarriage two days later, see Cruz-Erazo v. Rivera-Montanez,
212 F.3d 617, 623-24 (lst Cir. 2000); a teacher slapped a
student a single time in anger and without justification, see
Lillard, 76 F.3d at 726; a murder suspect committed suicide
after prosecutors encouraged the media to link him to a series
of murders, see Souza v. Pina, 53 F.3d 423, 427 (lst Cir. 1995);
and, officers allegedly threatened more than once to kill the
plaintiff and told her young children that if the police caught
their father they would never see him again, see Pittsley v.
Warish, 927 F.2d 3, 9 (lst Cir. 1991).
Plaintiff gives particular emphasis to Shillingford, 634
F.2d at 263, in which a tourist was struck by a police officer
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while attempting to photograph the arrest of a Mardi Gras
reveler. The tourist was uninvolved in and not interfering with
the police action. The officer intentionally struck the
tourist's camera with his nightstick, which destroyed the camera
and smashed it into the tourist's face, lacerating his forehead.
The court found the assault to be sufficiently severe to
establish a deprivation of constitutional rights. Id. at 266.
Shillingford offers only limited support for appellant's
position. As in that case, the attack here is fairly described
as "unprovoked and unjustified," 634 F.2d at 266. But the
surrounding circumstances were notably different: unlike in
Shillingford, the unjustified conduct was an open-handed shove
rather than a direct strike with a weapon. The likely potential
for injury from the push was substantially less than for use of
the nightstick. In addition, as noted earlier, rather than
reflecting a deliberate effort to do harm, the message behind
McIntire's conduct was reasonably understood to be simply "get
out of my way."
McIntire's violent conduct unquestionably was inconsistent
with his public responsibilities as a police officer and
deserves condemnation. As a member of law enforcement, he had
a particular obligation to exercise restraint, no matter how
stressful the circumstances may have felt to him. Yet, to
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equate his outburst with such brutal conduct as a rape, a nearly
two-month unlawful imprisonment, a shooting, or repeated
physical assaults would be to lower the very high threshold for
constitutional wrongdoing. "[O]nly the most egregious official
conduct can be said to be 'arbitrary in the constitutional
sense,'" Lewis, 523 U.S. at 846 (internal citation omitted).
Were we to hold that this level of police officer misconduct
was reached by the conduct at issue here, involving bad judgment
and vile temper in a situation of some stress, we would go far
toward making the due process clause "a surrogate for local tort
law or state statutory and administrative remedies," Hasenfus,
175 F.3d at 74. We find the Supreme Court's assessment of the
circumstances in Lewis equally applicable here:
Regardless whether [McIntire]'s behavior offended the
reasonableness held up by tort law or the balance
struck in law enforcement's own codes of sound
practice, it does not shock the conscience . . . .
523 U.S. at 855.
The district court's grant of summary judgment for defendant
is therefore affirmed.
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