Boveri v. The Town of Saugus

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.

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