Vivian Ann Rogers v. City of Little Rock

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ *
*
No. 97-2286 *
___________ *
*
Vivian Ann Rogers, *
*
Plaintiff - Appellant, *
*
v. *
*
City of Little Rock, Arkansas; Vincent *
Morgan, Little Rock, Arkansas Police *
Officer, Individually and in His Official *
Capacity; Louis Caudell, Little Rock, *
Arkansas Police Chief, Individually and *
in His Official Capacity, *
* Appeals from the United States
* District Court for the Eastern District
Defendants - Appellees. * of Arkansas.
*
___________ *
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No. 97-2556 *
___________ *
*
Vivian Ann Rogers, *
*
Plaintiff - Appellee, *
*
v. *
*
City of Little Rock, Arkansas, *
*
Defendant, *
 *
Vincent Morgan, Little Rock, Arkansas *
Police Officer, Individually and in His *
Official Capacity, *
*
Defendant - Appellant, *
*
Louis Caudell, Little Rock, Arkansas *
Police Chief, Individually and in His *
Official Capacity, *
*
Defendant. *
*
___________

Submitted: January 16, 1998
Filed: August 10, 1998
___________

Before LOKEN and MURPHY, Circuit Judges, and WEBBER,1 District Judge.
___________

MURPHY, Circuit Judge.

Vivian Ann Rogers brought this action under 42 U.S.C. § 1983 against former
Little Rock police officer Vincent Morgan, the City of Little Rock, and Chief of Police
Louie C. Caudell, alleging that her constitutional rights were violated when Morgan
raped her while he was on duty. After a bench trial the district court2 found Morgan
liable in his individual capacity and awarded Rogers $100,000 in damages. The court

1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri, sitting by designation.
2
The Honorable Susan Webber Wright, United States District Judge for the
Eastern District of Arkansas.

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had previously dismissed the claims against the city, Caudell, and Morgan in his official
capacity. Rogers now challenges these dismissals, and Morgan appeals from the
judgment entered against him. We affirm.

I

Little Rock police officer Vincent Morgan stopped Rogers for a broken tail light
on August 27, 1994, and asked her for proof she carried automobile insurance. She
indicated that she did not have the necessary papers with her, and Morgan called for
a tow truck which was standard procedure in such a situation. He later decided to
cancel the tow, however, and he followed her home in his patrol car and went into her
house. Rogers was unable to locate the papers, and Morgan told her he would let her
off but that she owed him one. He then started touching and kissing her and led her
into the bedroom where he told her to take off her clothes. Although she began to
undress, she stopped when Morgan said she did not have to have sex with him. When
he nevertheless repeated his demand that she disrobe, Rogers finished removing her
clothes. Morgan then pushed her onto the bed and had sexual intercourse with her.
Rogers said that she yelled because it hurt, but Morgan told her to be quiet and covered
the microphone on his uniform.

Rogers testified that she was in shock and afraid during this encounter and that
she did not know what to do, that she was surprised a police officer would be acting
in such a way, and that she was intimidated by Morgan’s gun and badge. The events
took place during Morgan’s duty shift when he was wearing his uniform, gun, and
badge. He drove to Rogers’ home in his patrol car and remained fully dressed in his
uniform throughout. Rogers said she was afraid to show how upset she was at the time,
but after Morgan left she vomited and called her former husband. He testified that she
was upset and cried during the call. Her cousin took her to the hospital when she
learned what had happened.

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 Rogers later sued the city and Morgan and the police chief in both their
individual and official capacities. She alleged that she had been deprived of her
constitutional rights under color of state law because Morgan used his office to coerce
and intimidate her into nonconsensual sex. She also alleged that the department’s
policy of not sustaining citizen complaints without corroborating evidence created a
permissive climate for abusive behavior. Finally, she alleged that the chief failed to
take appropriate measures in response to prior sexual misconduct by Morgan and
constitutional violations by other officers.

The district court granted summary judgment for the city and Chief Caudell in
all respects, and for Morgan in his official capacity. The court held there was
insufficient evidence to create a genuine issue of material fact about whether there was
a policy or custom of failing to investigate or act on allegations of abuse by police
officers and whether there was evidence that the chief handled prior incidents
improperly or ignored complaints. Morgan’s motion for summary judgment in his
individual capacity was denied on the basis that a genuine issue of material fact
remained about whether the sex was consensual.

Both Rogers and Morgan testified at trial, and the court found Rogers the more
credible witness, accepted her version of the encounter, and made findings that Rogers
was afraid of Morgan and what might happen if she didn’t cooperate with a police
officer and that he coerced her into sexual intercourse. The court also made specific
findings leading to its conclusion that Morgan was acting under color of state law at the
time. The court concluded that Morgan was liable under §1983 because he had
violated Rogers’ due process right to be free from physical abuse. It rejected Morgan’s
defense of qualified immunity because it concluded that he would have known that his
actions were clearly contrary to law. It upheld Rogers’ state law claim of assault and
battery but dismissed her claim of intentional infliction of emotional distress. The court
also found that Rogers was damaged in the amount of $100,000 for emotional distress
and physical pain caused by Morgan’s acts.

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 Morgan argues on appeal that Rogers failed to establish that he violated her due
process rights since the evidence at trial showed the sex was consensual. He contends
that he was not acting under color of state law because his actions were a substantial
departure from the duties of his job and that the damage award was excessive. Rogers
responds that the evidence supports the finding that Morgan intimidated and coerced
her into having sex with him and that he did so under color of state law. She also
contends that the resulting harm she suffered justifies the damage award.

Rogers appeals from the grant of summary judgment to the city and the police
chief and to Morgan in his official capacity. She argues that she presented sufficient
evidence to show that the city had a policy of disregarding complaints by citizens
against police officers when the only evidence was the complainant’s word against that
of an officer, as well as failing to take effective remedial action for abuse.3 In support
she cites deposition evidence from department officials and unsustained complaints by
female police officers of sexual harassment. The city, arguing on behalf of itself and
the police, responds that Rogers has not produced evidence that the city had such a
policy or that the chief was deliberately indifferent to or tacitly authorized constitutional
violations. Morgan presents a similar argument.

II
A number of issues are raised in connection with Morgan’s appeal from the
judgment entered against him after trial.

3
Rogers claims for the first time in her reply brief that the alleged policy had a
disparate impact on women, suggesting an equal protection violation. Claims raised
for the first time in reply briefs will not be considered, see Planet Productions, Inc. v.
Shank, 119 F.3d 729, 732 (8th Cir. 1997), but this claim would fail anyway because
it was not adequately developed and Rogers neither submitted evidence to show that
the policy was facially discriminatory nor alleged that it had a discriminatory purpose.
See Keevan v. Smith, 100 F.3d 644, 650-51 (8th Cir. 1996).

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 A

The first question is whether the district court was correct to analyze the case
under the due process clause. In her complaint Rogers alleged that her rights under the
fourth, fifth, sixth, eighth, and fourteenth amendments were violated, and it was left to
the district court to consider which of these amendments should be the proper focus of
analysis. In its consideration the court made reference to Graham v. Connor, 490 U.S.
386, 395 (1989), and reasoned that the facts here do “not fit the mold of a typical fourth
amendment search and seizure case” and that no amount of force could have been
reasonable to achieve Morgan’s purpose in having nonconsensual intercourse. His acts
were of a nature shocking to the conscience the court said, citing Rochin v. California,
342 U.S. 165 (1952), and the forced act of sexual intercourse violated Rogers’ due
process right to be free from physical abuse or sexual assault by state actors.

The Supreme Court has recognized a substantive due process right to bodily
integrity in Rochin and a line of other cases, even when declining to apply it to
particular fact situations. See e.g. Washington v. Glucksberg, 117 S.Ct. 2258, 2267
(1997) (no due process right to assisted suicide); Cruzan v. Director, Missouri Dep’t of
Health, 497 U.S. 261, 287-88 (1990) (O’Connor, J., concurring) (no absolute due
process right to terminate life support of an incompetent). “It is settled now that the
constitution places limits on the State’s right to interfere with a person’s most basic
decisions about bodily integrity.” Glucksberg, 117 S.Ct. at 2288-89 (Souter, J.,
concurring) (quoting Planned Parenthood v. Casey, 505 U.S. 833, 849 (1992)). The
right has been employed to protect against nonconsensual intrusion into one’s body, see
Rochin, and has been seen to permit the right of a competent person to refuse unwanted
medical treatment, see Cruzan, 497 U.S. at 278-79; 287-88; Vacco v. Quill, 117 S.Ct.
2293, 2301 (1997) (discussing Cruzan). The Supreme Court has not had occasion to
consider the liability of a state actor under § 1983 for a sexual assault, but it has held
that it is not necessary for there to be a precedent applying the constitutional right to

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a “fundamentally similar” factual situation in order for a criminal defendant to know that
he is violating the due process right to bodily integrity by committing sexual assault.
United States v. Lanier, 117 S.Ct. 1219, 1226-28 (1997).

A number of circuit courts have found due process violations when state actors
have inflicted sexual abuse on individuals. In another case involving rape by a police
officer after a traffic stop, the Fourth Circuit described the due process right which was
violated as a “right . . . not to be subjected by anyone acting under color of state law to
the wanton infliction of physical harm.” Jones v. Wellham, 104 F.3d 620, 628 (4th Cir.
1997). The same circuit also described this due process right as “protection against
unreasonable bodily intrusions by state actors” in discussing a claim based on abusive
sexual conduct in a state facility. McWilliams v. Fairfax County Bd. of Supervisors,
72 F.3d 1191, 1197 (4th Cir.), cert. denied, 117 S.Ct. 72 (1996). In a 1994 case
involving sexual abuse of school children by a teacher the Fifth Circuit held that there
was a well-established “liberty interest in . . . bodily integrity,” Doe v. Taylor Ind. Sch.
Dist., 15 F.3d 443, 450-52 (5th Cir. 1994), and in 1992 the Ninth Circuit spoke of a
clearly established “right to bodily privacy” in Sepulveda v. Ramirez, 967 F.2d 1413,
1415-16 (9th Cir. 1992) (parolee observed while suppling a urine sample). Our circuit
has also applied due process analysis to violation by a state actor of an individual’s
bodily integrity. In Haberthur v. City of Raymore, Missouri, 119 F.3d 720, 723 (8th
Cir. 1997), we recognized the due process right to be free of unwelcome “sexual
fondling and touching or other egregious sexual contact” by a police officer acting under
color of law and reversed a dismissal on the pleadings.

Morgan’s sexual assault of Rogers was a violation of the most intimate kind of
bodily integrity. He forced himself into her body at a time and in a way that could not
be considered part of any legitimate police function. The act was not only an invasion
of Rogers’ privacy, but of the most private area of her body. The facts of this case are
very similar to those in Jones where an officer stopped the plaintiff on suspicion of
driving while intoxicated, told her she would not be arrested and offered to drive her

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home, but then raped her, and where the Fourth Circuit held that the violation of the
plaintiff’s bodily integrity invaded her due process rights. See 104 F.3d at 628. The
district court did not err in concluding that Rogers’ due process right was violated by
the egregious sexual violation by officer Morgan.

The dissent argues that the facts in this case should be analyzed under the fourth
amendment rather than due process, relying on Graham v. Connor, 490 U.S. at 395.
Graham was a case involving force used at the scene of a traffic stop, and the Supreme
Court said there that a fourth amendment reasonableness test should be applied to “all
claims that law enforcement officers have used excessive force . . . in the course of an
arrest, investigatory stop, or other ‘seizure.’” Id. Graham did not say that all claims of
abuse by police officers are to be judged by that test, and the Court has advised that the
case did “not hold that all constitutional claims relating to physically abusive
government conduct must arise under either the Fourth or Eighth Amendment.” Lanier,
117 S.Ct. at 1227 n.7.

The first step in a § 1983 analysis is “to isolate the precise constitutional
violation” which is alleged. Baker v. McCollan, 443 U.S. 137, 140 (1979), cited in
Graham, 490 U.S. at 394. Rogers has not charged Morgan with using excessive force.
Her allegation is one of rape accomplished through the coercive power of his status as
a police officer. This case is not about excessive force, but rather about nonconsensual
violation of intimate bodily integrity which is protected by substantive due process. No
degree of sexual assault by a police officer acting under color of law could ever be
proper. The violation here is different in nature from one that can be analyzed under the
fourth amendment reasonableness standard. Morgan’s assault on Rogers was also
different in time and place from the type of search and seizure scene addressed in
Graham. See also Jones, 104 F.3d at 628. The assault occurred after Rogers had been
told she could go and Morgan had followed her home, far from the scene of the traffic
stop and separated in time from it.

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 The recent decision of the Supreme Court in County of Sacramento v. Lewis, 118
S.Ct. 1708, 1715-16, 1717-18 (1998), demonstrates that a constitutional claim need not
be analyzed under Graham just because the incident began with a traffic stop and that
the “shocks the conscience” test continues to have validity. In Lewis, parents sued to
recover for deprivation of their son’s substantive due process right to life after he was
killed as a result of a police chase. The Court said the claim should be analyzed under
the due process clause rather than the fourth amendment. Id. at 1715-16. It explained
that the core of the substantive due process concept is “protection against arbitrary
action” and against “the exercise of power without any reasonable justification in the
service of a legitimate governmental objective.” Id. at 1716. In a lengthy discussion
of the fifty year history of the shocks the conscience test and the policy behind it, the
Court explained why this is the appropriate test to apply to substantive due process
claims and how the test serves to distinguish abusive executive acts amounting to
constitutional violations from breaches of common law duties covered by tort law. Id.
at 1717-18. Conduct that is “intended to injure in some way unjustifiable by any
government interest” is likely to be conscience shocking. Id. at 1718.

The threshold question in a due process challenge to abusive conduct by a state
actor is “whether the behavior of the governmental officer is so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.” Lewis,
118 S.Ct. at 1717 n.8. The evidence in this case supports the district court’s conclusion
that Rogers suffered a violation of her right to intimate bodily integrity that was
conscience shocking. This case involves an egregious, nonconsensual entry into the
body which was an exercise of power without any legitimate governmental objective.
It therefore violated Rogers’ substantive due process right. Morgan’s rape was an
intentional act that produced constitutional injury and that was an “arbitrary exercise of
the powers of government, unrestrained by the established principles of private right and
distributive justice.” Lewis, 118 S.Ct. at 1716 (quoting Hurtado v. California, 110 U.S.
516, 527 (1884)). The rape falls at the extreme end of the scale of egregious conduct
by a state actor and was “unjustifiable by any government interest.” Lewis,

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118 S.Ct. at 1718. The district court did not err in analyzing the case under the due
process clause or in its conclusion that the violation of Rogers’ due process rights was
shocking to the conscience.

B

Morgan contends that the evidence did not establish a due process violation
because he did not use violence to commit the sexual assault. He cites portions of
Rogers’ trial testimony where she admitted that he told her she did not have to have sex
with him, that she did not ask him to stop or physically resist his advances, that she
took her own clothes off, and that he did not threaten or harm her. He also notes that
the Internal Affairs Division of the Little Rock Police Department (LRPD) did not
sustain her complaint and that the prosecuting attorney declined to bring criminal
charges against him.

Rogers was able to establish a due process violation absent physical force
because such violations can be based on mental coercion. See Leyra v. Denno, 347
U.S. 556, 558 (1954). Morgan’s contention that no due process violation can be
established on these facts therefore fails unless the district court’s factual finding that
the sex was nonconsensual was clear error. Fed. R. Civ. P. 52(a). The court found
incredible Morgan’s claim that the intercourse was consensual. He told several versions
of what happened on the day of the rape, remained in his clothes throughout, and his
excuse for following Rogers around her house (that he was afraid she had a weapon)
was inconsistent with a claim of consensual sex. After reviewing the trial transcript and
giving due weight to the fact that the trial court is in a superior position to evaluate the
credibility of witnesses, see Bush v. Marshalltown Medical and Surgical Center, 123
F.3d 1130, 1134 (8th Cir. 1997), we conclude that the factual findings of the district
court are not clearly erroneous.

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 C

Morgan argues that the district court erred in finding that he was acting under
color of state law. He contends that not towing Rogers’ car when she did not have
proof of insurance, going to her home, and then having sex with her were all substantial
departures from his duties as a Little Rock police officer which means he was not acting
under color of law, citing Heidemann v. Rother, 84 F.3d 1021 (8th Cir. 1996). An
official acts under color of state law even if he “abuses the position given him by the
State . . . while acting in his official capacity or while exercising his responsibilities
pursuant to state law.” West v. Atkins, 487 U.S. 42, 50 (1988). The issue depends on
“the nature and circumstances of the officer’s conduct and the relationship of that
conduct to the performance of his official duties.” Roe v. Humke, 128 F.3d 1213, 1216
(8th Cir. 1997) (quoting Martinez v. Colon, 54 F.3d 980, 986 (1st Cir. 1995)). There
were facts produced to show that Morgan relied on his authority as a police officer to
facilitate the assault. He stopped Rogers for a broken tail light, raised the prospect of
towing her car when she did not have the insurance papers, and later after going to her
home said that she owed him a favor in exchange for letting her go. He remained in
uniform, and Rogers testified that she felt she had to cooperate with his demands
because he was a police officer. Morgan thus abused his power while carrying out the
official duties entrusted to him by the state, and the district court did not err in finding
that he acted under color of state law.

D

Morgan claims that he was entitled to qualified immunity, which protects an
official when his conduct “does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982). The court properly denied immunity, however, since Morgan’s
sexual assault violated the clearly established due process right to be

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free of physical abuse by public officials, and a reasonable officer would have known
of this right. See Lanier 117 S.Ct. at 1228 (sufficient for liability under § 1983 and 18
U.S.C. 242 that “‘in the light of pre-existing law the unlawfulness [under the
Constitution is] apparent’”(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987));
see also Doe v. Taylor Ind. Sch. Dist., 15 F.3d at 455.

E

Morgan finally asserts that the $100,000 in damages awarded to Rogers was
excessive because any harm to her did not rise to the level of Parrish v. Luckie, 963
F.2d 201 (8th Cir. 1992), which the district court relied on to determine the appropriate
award. Compensatory damages are recoverable in § 1983 actions for injuries including
“personal humiliation, and mental anguish and suffering.” Memphis Community Sch.
Dist. v. Stachura, 477 U.S. 299, 307 (1986) (quoting Gertz v. Robert Welch, Inc., 418
U.S. 323, 350 (1974)); see also Jackson v. Crews, 873 F.2d 1105, 1109 (8th Cir. 1989).
We review damage awards for abuse of discretion and ask whether the award is
arbitrary or excessive. See Doby v. Hickerson, 120 F.3d 111, 114 (8th Cir. 1997). The
plaintiff, her family, her friends, and her expert witness all testified to the harmful
impact the incident had on her, and the nature of the act and its context all contribute
to the conclusion that the award was not arbitrary or excessive. The award was also
proportionate to the type of harm and the amount given in similar cases. See Mathie v.
Fries, 121 F.3d 808, 813-14 (2d Cir. 1997) (collecting cases and upholding $250,000
compensatory damage award for inmate raped by prison official).

III

Rogers appeals the summary judgment dismissals. She claims that there are
genuine issues of fact about whether the city had a policy of not sustaining complaints
of physical abuse by police officers and whether such policy caused the violation of her

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constitutional rights. In order to subject the city to § 1983 liability Rogers must show
that the city had a “‘policy or custom’ of failing to act upon prior similar complaints of
unconstitutional conduct, which caused the constitutional injury at issue.” Andrews v.
Fowler, 98 F.3d 1069, 1075 (8th Cir. 1996) (quoting Monell v. Dep’t of Soc. Servs. of
the City of New York, 436 U.S. 658, 694 (1978)). In support of her claim Rogers
offered the deposition testimony of officer John Hall of the LRPD Internal Affairs
Division who stated that a complaint would not be sustained without physical evidence
or other witnesses to support the accusations. She also points to two LRPD documents
which indicate that the department would accept an officer’s statement as true unless
the complaint was corroborated. She argues that this created an environment in which
officers believed that they could violate citizens’ constitutional rights with impunity,
even by an act of rape, citing Beck v. City of Pittsburgh, 89 F.3d 966 (3d Cir. 1996),
cert denied, 117 S.Ct. 1086 (1997).

We review the district court’s summary judgment ruling de novo. See Andrews,
98 F.3d at 1074. If, viewing the facts in the light most favorable to the nonmoving
party, the “record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no ‘genuine issue for trial,’” and summary judgment is
appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); see also Fed. R. Civ. P. 56(c).

Assuming for the purposes of summary judgment that the city had a policy of
ruling citizen complaints “not sustained” when there was no supporting evidence
besides the complainant’s account, Rogers has failed to establish a case for § 1983
liability since such policy was not shown to have caused the constitutional violation.
A § 1983 plaintiff must prove that the alleged policy “was the moving force behind the
constitutional violation.” Jane Doe A. v. Special Sch. Dist., 901 F.2d 642, 646 (8th Cir.
1990). Rogers has not made an adequate showing that a policy of believing the officer’s
word over the complainant’s in the absence of other evidence led officers to believe that
they could violate citizens’ constitutional rights without fear of punishment.

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The uncontested evidence shows that all allegations of police misconduct were
investigated by the LRPD, and there was no pattern of acquiescence in the face of
constitutional violations. Nor was there sufficient evidence to establish that the
investigations were a “facade to cover the violent behavioral patterns of police officers.”
Beck, 89 F.3d at 974. Rogers’ evidence fails as a matter of law to prove the essential
element of causation, and her citation to Beck is of no assistance because that case only
dealt with the sufficiency of the evidence to prove a policy and did not address
causation. See Beck, 89 F.3d at 972 n.6.

A city may also be liable under § 1983 where there had been “a prior pattern of
unconstitutional conduct that [was] so ‘persistent and widespread’ as to have the effect
and force of law,” and the pattern caused the alleged injury. Andrews, 98 F.3d at 1075
(quoting Monell, 436 U.S. at 691). A plaintiff must show “that city officials had
knowledge of prior incidents of police misconduct and deliberately failed to take
remedial action.” Id. (quoting Parrish, 963 F.2d at 204). Rogers cites as evidence of the
city’s inadequate reaction an earlier incident where Morgan engaged in sexual
intercourse with a fellow cadet while on duty and an unsustained claim by another cadet
of sexual harassment. The undisputed evidence showed that the department investigated
both incidents and suspended Morgan as a result of his engaging in intercourse with a
fellow cadet while on duty. This response was sufficient as a matter of law to defeat a
claim that the city responded inadequately to information about Morgan’s prior
misconduct.

Additionally, Rogers points to three Equal Employment Opportunity Commission
sexual harassment complaints filed by female department members and a list of
excessive force complaints as evidence that there was a city practice or policy not to
follow up properly on such claims and to tolerate an atmosphere of sexual misconduct.
There must also be some showing that the complaints had merit, however. See Handle
v. City of Little Rock, 772 F. Supp. 434, 437 (E.D. Ark. 1991) (quoting Brooks v.
Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987)). Two of the EEOC complaints were

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dismissed, and a single claim is not enough to raise a genuine issue of fact about whether
the city dealt inappropriately with sexual harassment by officers. Moreover, since Chief
Caudell took office there has been only one other complaint of sexual abuse by an
officer, and that complaint was investigated and resulted in the prosecution of the
complainant for filing a false police report. The submitted evidence of sexual
misconduct is insufficient to establish that the city was aware of a pattern of misconduct
and responded inappropriately to it.

Rogers also challenges the dismissal of her claims against the chief and Morgan
in their official capacities. Liability for city officials in their official capacities is another
form of action against the city, and it requires the same showing that a policy or custom
caused the alleged violation. See Monell, 436 U.S. at 690 n.55; Marchant v. City of
Little Rock, 741 F.2d 201, 204 (8th Cir. 1984). As discussed earlier, the alleged policy
was not shown to have caused the injury Rogers suffered, and therefore summary
judgment was appropriate.

Finally, Rogers contends that the district court erred by dismissing her claim
against the police chief in his individual capacity because there is an issue of fact about
whether he was deliberately indifferent to Morgan’s sexual misconduct. A city
employee faces § 1983 liability in his individual capacity when he fails to act adequately
on complaints of sexual abuse if he had notice of a pattern of unconstitutional conduct
by subordinates and exhibited deliberate indifference to or tacit authorization of the
conduct. See Bell v. Fowler, 99 F.3d 262, 269 (8th Cir. 1996); Wilson v. City of North
Little Rock, 801 F. 2d 316, 322 (8th Cir 1986). Rogers cites the two incidents of sexual
misconduct by Morgan with fellow cadets and asserts that the chief responded
inadequately to them. Both allegations were investigated, and one resulted in Morgan’s
suspension for ten days and the other was not sustained because there were no
witnesses. This response did not show a “reckless disregard for or deliberate
indifference to” unconstitutional conduct by Morgan. Rubek v. Barnhart,

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814 F.2d 1283, 1284 (8th Cir. 1987). The record also shows that the chief decided to
terminate Morgan after an investigation into the rape of Rogers, but he resigned first.

IV

Since we conclude that the evidence at trial supports the findings and conclusions
of the district court and that Rogers did not make a sufficient showing against the city
and the chief of police or Morgan in his official capacity, we affirm the final judgment
in all respects.

LOKEN, Circuit Judge, concurring in part and dissenting in part.

I concur in Part III of the court’s opinion, which affirms the dismissal of Vivian
Rogers’s claims against the City of Little Rock, Police Chief Caudell, and Officer
Morgan in his official capacity. However, I respectfully dissent from Part II, which
affirms the judgment in favor of Rogers on her substantive due process claim against
Officer Morgan in his personal capacity.

As the court acknowledges, “the first inquiry in any § 1983 suit is to isolate the
precise constitutional violation with which the defendant is charged.” Graham v.
Connor, 490 U.S. 386, 394 (1989). Officer Morgan stopped Ms. Rogers’s car for a
broken tail light, threatened to tow her car when she failed to produce proof of insurance,
and then followed her home and went into her house in search of evidence of insurance.
These rather routine police actions implicated the Fourth Amendment “right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” Thus, there can be no question that, if Ms. Rogers had filed
§ 1983 claims challenging any of these police actions, those claims would be analyzed
exclusively under the Fourth Amendment.

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 Ms. Rogers alleges that Officer Morgan, while acting under color of law, raped
her before leaving her home. She alleges that she was coerced into nonconsensual sex
while still under Morgan’s control and fearful of the consequences of failing to cooperate
with a police officer. In Graham, the Supreme Court held “that all claims that law
enforcement officers have used excessive force -- deadly or not -- in the course of an
arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard, rather than under a
‘substantive due process’ approach.” 490 U.S. at 395. Although due process interests
may be implicated by such excessive force, Fourth Amendment analysis was appropriate
in Graham because “both provisions targeted the same sort of governmental conduct
and, as a result, we chose the more explicit textual source of constitutional protection
over the more generalized notion of substantive due process.” Soldal v. Cook County,
506 U.S. 56, 70 (1992) (quotations omitted). Yet the district court, and now this court,
reject Fourth Amendment analysis in this case, apparently because Officer Morgan’s
criminal misconduct does not look like a typical Fourth Amendment excessive force
case. I disagree.

To recover under the Fourth Amendment, Rogers must first prove that the
challenged conduct took place in the course of an arrest, investigatory stop, or seizure.
The Fourth Amendment was not implicated in the recent case of County of Sacramento
v. Lewis, 118 S. Ct. 1708 (1998), because there was no seizure, only pursuit that ended
in a fatal car crash. Therefore, substantive due process was the only § 1983 claim
available to the unsuccessful § 1983 plaintiff. Here, on the other hand, there was an
initial traffic stop and seizure followed by continuing, allegedly coercive investigation
at Ms. Rogers’s home. The Fourth Amendment fits the setting and amply protects her
constitutional rights. If she cannot prove that the rape was part of a Fourth Amendment
seizure, for example, because Officer Morgan’s police work ended before their sexual
encounter began, then her substantive due process claim should fail as well. On the
other hand, if the rape was part of a Fourth Amendment seizure, then Officer Morgan
will surely be liable under the familiar Fourth Amendment reasonableness inquiry

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articulated in Winston v. Lee, 470 U.S. 753, 759-63 (1985). See, e.g., Mayard v.
Hopwood, 105 F.3d 1226, 1228 (8th Cir. 1997) (police beating a handcuffed and
hobbled arrestee unreasonable). In my view, there is nothing inappropriate or unusual
in imposing virtually per se Fourth Amendment liability on police officers who misuse
their power to arrest or otherwise seize a person by committing sexual assaults.

On the other hand, the very significant problem with the court’s substantive due
process analysis is that it has no definable limits. The court says, “No degree of sexual
assault by a police officer acting under color of law could ever be proper.” Ante at 8.
In the abstract, I can agree. But I do not agree that any such sexual assault by any
government employee is a substantive due process violation. As the various opinions
in Lewis make clear, “shock the conscience” is a restrictive standard for defining the
scope of substantive due process. The Supreme Court has recently warned, “We must
therefore exercise the utmost care whenever we are asked to break new ground in this
field, lest the liberty protected by the Due Process Clause be subtly transformed into the
policy preferences of the members of this Court.” Washington v. Glucksberg, 117 S. Ct.
2258, 2268 (1997) (citations omitted). And the Court has “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.” Collins v. City of Harker Heights, 503 U.S.
115, 128 (1992).

The Supreme Court instructed us in Graham to avoid substantive due process
analysis when the Fourth Amendment provides “the more explicit textual source of
constitutional protection” for a § 1983 claim. The district court violated that directive
when it decided “this case is best analyzed pursuant to the due process clause.” See
Cole v. Bone, 993 F.2d 1328, 1332 (8th Cir. 1993); Robinson v. City of St. Charles, 972
F.2d 974, 976 (8th Cir. 1992); Foster v. Metropolitan Airports Comm’n, 914 F.2d 1076,
1081 (8th Cir. 1990); Roach v. City of Fredericktown, 882 F.2d 294, 297 (8th Cir.
1989). Accordingly, I would reverse the judgment of the district court and remand for
an analysis of Vivian Rogers’s claim under the Fourth Amendment.

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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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