USCA1 Opinion
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