USCA1 Opinion
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 96-1868
LOUIS BOVERI AND ROSE BOVERI,
Plaintiffs, Appellants,
v.
TOWN OF SAUGUS, ET AL.,
Defendants, Appellees.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge] ___________________
_________________________
Before
Torruella, Chief Judge, ___________
Selya and Boudin, Circuit Judges. ______________
_________________________
Edmund M. Pitts, with whom Edmund R. Pitts and Pitts & Pitts _______________ _______________ _____________
were on brief, for appellants.
Philip Burling, with whom Gregory T. Moffatt, Feriale _______________ ____________________ _______
Abdullah, Foley, Hoag & Eliot, Judith R. Cohen, and Adams & Koss ________ ____________________ _______________ ____________
were on brief, for appellees.
_________________________
May 12, 1997
_________________________
SELYA, Circuit Judge. The instant appeal tests the SELYA, Circuit Judge. _____________
margins of the "shock the conscience" standard that this court
articulated in Evans v. Avery, 100 F.3d 1033 (1st Cir. 1996). _____ _____
Finding, as we do, that the conduct complained of does not cross
the Evans line, we affirm the entry of judgment for the _____
defendants.
Because the district court terminated the plaintiff's
case1 on summary judgment, Fed. R. Civ. P. 56, we assess the
record in the light most flattering to him and draw all
supportable inferences in his favor. See Garside v. Osco Drug, ___ _______ __________
Inc., 895 F.2d 46, 48 (1st Cir. 1990). ____
The curtain rises in Saugus, Massachusetts. Shortly
after 9:00 p.m. on December 28, 1990, Saugus police officers
Michael McGrath and David Putnam were on patrol in a police
cruiser. They received notice of a disturbance at a McDonald's
restaurant on Route 1. As it passes through Saugus, Route 1 has
six travel lanes (three northbound and three southbound). The
posted speed limit is 45 miles per hour. At the time of the
events in question, weather conditions were execrable: a mixture
of snow and rain, with slush beginning to form on the road in
spots.
In the course of responding to the reported
disturbance, the officers received a second radio dispatch to the
____________________
1In actuality, there are two plaintiffs: Louis Boveri and
his wife, Rose Boveri. Inasmuch as Rose's claim is entirely
derivative of her spouse's, we treat the appeal as if Louis were
the sole plaintiff.
2
effect that the individuals involved were leaving the scene in a
small, dark-colored Honda automobile. The officers arrived just
as a car matching the reported description pulled out of the
restaurant's parking area and sped north on Route 1. The
officers followed, activating their siren and blue lights.
Instead of stopping, the Honda accelerated. The officers gave
chase.
The pursuit continued along Route 1 at speeds in excess
of 80 miles per hour for more than three miles. Throughout, the
officers remained only a few car lengths to the rear, and the
driver of the Honda, James Wade, desperately attempted to elude
them. Under Wade's aegis, the Honda weaved from lane to lane and
tried to use other vehicles to obstruct the trailing police
cruiser. At one point, the Honda left the road, did a 360-degree
spin, and returned to the highway. Wade later described the
chase as being "like a video game."
In Lynnfield, the Honda left Route 1 via the Route 129
exit. The plaintiff's vehicle was ahead of the Honda, signaling
to turn right. Wade could not stop in time and the Honda
hydroplaned into the plaintiff's car, instigating a chain
collision. Officers McGrath and Putnam arrived at the scene
instantaneously, apprehended Wade, and summoned medical
assistance for the plaintiff (who had sustained severe
injuries).2
____________________
2Wade subsequently entered a guilty plea to charges of
aggravated rape, burglary, and larceny of a motor vehicle. We
assume for purposes of this appeal that the officers were not
3
The plaintiff sued McGrath, Putnam, and the
municipality under 42 U.S.C. 1983 (1994), alleging principally
that the officers' conduct violated his right to substantive due
process. The district court granted summary judgment in the
officers' favor based on qualified immunity, concluding that the
officers' conduct did not violate clearly established federal
constitutional or statutory rights of which a reasonable police
officer would have known. This appeal followed.3
Summary judgment is proper only when "there is no
genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). Our review of the district court's application of the
rule is plenary. See Garside, 895 F.2d at 48. ___ _______
While this appeal was pending, we seized an opportunity
to clarify the appropriate legal standard for claims that a
police pursuit violates substantive due process. See Evans, 100 ___ _____
F.3d at 1038. We apply that standard here, mindful that the
lower court's rationale does not delimit the scope of appellate
review. An appellate court may, if it chooses to do so, affirm a
summary judgment on any alternative ground supported by the
record. See Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir. 1996). ___ _________ ____
____________________
aware that the Honda was stolen or that its driver was implicated
in rape and burglary.
3Only the officers moved for brevis disposition, yet the ______
trial court entered judgment for all three defendants (including
the town of Saugus). Because the plaintiff has not assigned
error to that seeming irregularity, we deem any objection to be
waived.
4
It is by now axiomatic that 42 U.S.C. 1983 supplies a
private right of action against a person who, acting under color
of state law, deprives another of federally secured rights.
Acting under this rubric, claimants harmed by police misconduct
occurring outside the context of a seizure theoretically may
bring suits alleging the deprivation of rights protected by the
substantive component of the Due Process Clause. See Evans, 100 ___ _____
F.3d at 1036. But the Supreme Court has cautioned against
interpreting the Due Process Clause so extravagantly that it
"impose[s] federal duties that are analogous to those
traditionally imposed by state tort law." Collins v. City of _______ ________
Harker Heights, 503 U.S. 115, 128 (1992). ______________
There is another caveat applicable here. Police
pursuits have a special dimension: although they are dangerous
and inevitably create risks to bystanders, they are at the same
time an essential law enforcement tool for the apprehension of
suspects. See Evans, 100 F.3d at 1038. To use the tool, ___ _____
however, police officers are forced to make instantaneous
judgments about how to balance the legitimate needs of law
enforcement and the risks to public safety. See id. Conscious ___ ___
of the difficult nature of this balancing act, we determined in
Evans 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." Id. The Evans ___ _____
paradigm is fully applicable in the instant case.
5
Applying Evans, we are satisfied that the district _____
court appropriately granted brevis disposition. When the ______
officers first spotted the Honda, they had good reason to attempt
to stop it. They knew that its driver and his passenger had
created a disturbance at McDonald's. From their experience with
such disturbances, coupled with the Honda's rate of speed, the
officers were justifiably concerned that the driver was under the
influence of alcohol (a concern which doubtless was magnified by
the officers' awareness that New Year's Eve was approaching).
When the Honda initially failed to stop despite the siren and
flashing lights, the stakes increased. At that juncture, the
officers were warranted in mounting a pursuit; leaving such a
driver on the road would not only stymie law enforcement but also
endanger the public.
To be sure, as the chase progressed, the Honda's wild
driving plainly created an escalating risk of harm to bystanders
but the officers' continuation of the pursuit must be judged
against the exigencies of the situation that had developed. The
law enforcement interest in apprehending the Honda had grown, as
had the danger to the public inherent in leaving a reckless
(potentially inebriated) driver on the road. Under Evans, the _____
question is not whether the officers' decision to dog the Honda
was sound decisions of this sort always involve matters of
degree but, rather, whether a rational jury could say it was
conscience-shocking. Here, as in Evans, we think not. _____
The plaintiff asseverates that this case is materially
6
different from Evans because, here, the officers' conduct _____
violated departmental rules, state law, and an order from the
dispatcher to cease and desist. But to the extent that this
asseveration is supported by the record, these attributes,
individually and collectively, do not suffice to tip the scales.
We explain briefly.
The plaintiff's assertion that the officers violated
departmental rules finds some purchase in the record. A 1988
memorandum authored by the Saugus police chief, Donald M. Peters,
directs officers to "engage in high speed chases only in cases of
serious felonies." Although it turned out that the officers'
quarry had committed serious felonies (rape, burglary, and
larceny of a motor vehicle), it is uncertain whether the officers
had any inkling of this circumstance. See supra note 2. Still, ___ _____
assuming for argument's sake that McGrath and Putnam mounted the
chase in contravention of a departmental regulation, the
violation would not transgress the "shock the conscience"
standard.
A regulatory violation, like a violation of state law,
is not inherently sufficient to support a 1983 claim. See ___
Martinez v. Colon, 54 F.3d 980, 989 (1st Cir.), cert. denied, 116 ________ _____ _____ ______
S. Ct. 515 (1995); PFZ Properties, Inc. v. Rodriguez, 928 F.2d _____________________ _________
28, 32 (1st Cir. 1991); Amsden v. Moran, 904 F.2d 748, 757 (1st ______ _____
Cir. 1990) ("Even bad-faith violations of state law are not
necessarily tantamount to unconstitutional deprivations of due
process."); see also Davis v. Scherer, 468 U.S. 183, 196 (1984) ___ ____ _____ _______
7
(rejecting argument that an official's conduct is objectively
unreasonable when it violates a statute or regulation and
admonishing that it is not "always fair, or sound policy, to
demand official compliance with statute and regulation on pain of
money damages"). While departmental regulations are helpful in
measuring police officers' conduct against the Evans benchmark, _____
courts must look past the regulations to the officers' underlying
actions to determine whether their behavior shocks the conscience
(and, thus, violates a plaintiff's right to substantive due
process). See Temkin v. Frederick County Comm'rs, 945 F.2d 716, ___ ______ ________________________
723 (4th Cir. 1991) (applying this principle in a police pursuit
case).
There is nothing in state law that supports the
plaintiff's contention that the officers' actions shock the
conscience. In this regard, the plaintiff's main claim to the
contrary that the officers abridged state law by driving in
excess of the speed limit is a figment of his
mischaracterization of the legal rules governing the operation of
emergency vehicles. Massachusetts law allows a police officer to
exceed the speed limit "in an emergency and while in performance
of a public duty . . . if he exercises caution and due regard
under the circumstances for the safety of persons and property."
Mass. Gen. L. ch. 89, 7B (1989). While the plaintiff might
argue plausibly that the officers failed to exercise due care in
pursuing the Honda, negligence under state law does not amount to
a constitutional violation. We do not believe that any court, on
8
this scumbled record, could find the officers' possible
negligence to be conscience-shocking.
The plaintiff's final point is cut from the same cloth.
The plaintiff asserts that McGrath and Putnam ignored an
instruction by a supervisory officer, issued through the
dispatcher, to break off their pursuit of the Honda. Although
there is no evidence in the record to support this assertion,
Judge Wolf noted that he would have allowed further discovery to
investigate it had he found it to be outcome-determinative. Even
assuming, therefore, that this claim is factually correct, a
supervisor's judgment that a pursuit should be halted neither
increases nor decreases the risks inherent in the pursuit itself.
In the circumstances of this case a brief chase on a limited-
access highway on the trail of a vehicle which appeared to pose a
significant threat to public safety the officers' failure to
heed their supervisor does not sink to the level of a
constitutional breach.
In the last analysis, the signals are mixed the
inclement weather, the relatively high speeds, and the overriding
of a departmental regulation are troubling, but these facts are
ameliorated because the chase was brief (under five minutes), it
took place on a six-lane, limited-access highway, and turning a
blind eye would have left the public in jeopardy and mixed
signals are not the stuff from which a finding that particular
conduct shocks the conscience can easily be derived.
9
We need go no further.4 Even though we acknowledge the
imprecision of the "shock the conscience" test, see Evans, 100 ___ _____
F.3d at 1039, the officers' conduct here is more reasonable than
that displayed in several cases in which appellate courts
understandably have held police behavior not to traverse the
constitutional line. See, e.g., Fagan v. City of Vineland, 22 ___ ____ _____ _________________
F.3d 1296, 1299-1300 (3d Cir. 1994) (en banc) (involving a
pursuit at up to 80 m.p.h. through many red lights); Temkin, 945 ______
F.2d at 718 (involving a pursuit at speeds up to 105 m.p.h. on a
narrow, two-lane highway). Because we agree with the decisions
in those cases, we also agree, a fortiori, that the court below
correctly decided the case at bar.
Affirmed. Affirmed. ________
____________________
4Of course, our holding today does not mean that injured
parties are necessarily remediless in these situations; state law
provides an avenue for recourse (although perhaps a less generous
one). However, exploring that avenue is beyond the legitimate
scope of this opinion.
10