Cummings v. McIntire

United States Court of Appeals
For the First Circuit

No. 01-1301

JAMES W. CUMMINGS AND DEBORAH CUMMINGS,

Plaintiffs, Appellants,

v.

POLICE OFFICER ALLEN MCINTIRE,
POLICE CHIEF MICHAEL CHITWOOD,
AND THE CITY OF PORTLAND,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Lynch, Circuit Judge,
Coffin, Senior Circuit Judge,
and Young,* District Judge.

Michael J. Waxman for appellants.
Mark E. Dunlap, with whom Norman, Hanson & DeTroy was on
brief, for appellees.

*Of the District of Massachusetts, sitting by designation.
 November 16, 2001

COFFIN, Senior Circuit Judge. Appellant James Cummings

brought this suit under 42 U.S.C. § 1983 claiming that his right

to substantive due process was violated when appellee Allen

McIntire, an on-duty police officer, allegedly struck him

unjustifiably as Cummings asked for street directions. The

district court granted summary judgment for all defendants.1 It

concluded that McIntire's conduct - though deplorable,

unprofessional and offensive - did not "shock the conscience,"

and thus fell short of establishing a constitutional violation.

We affirm.

I. Factual Background

1 The suit was brought by Cummings and his wife, Deborah,
against McIntire, Portland Police Chief Michael Chitwood, and
the City of Portland. The magistrate judge recommended granting
summary judgment for the city and police chief, but concluded
that the case should go forward against McIntire. Cummings did
not oppose the portion of the recommended decision dismissing
the case against the city and police chief, and the district
court's adoption of the magistrate judge's recommendation on
those parties is thus unreviewable. See Fed. R. Civ. P. 72(a);
28 U.S.C. § 636(b)(1). Deborah Cummings did not submit argument
on the district court's dismissal of her loss of consortium
claim, and so we do not consider it, either. See Fletcher v.
Town of Clinton, 196 F.3d 41, 55 (lst Cir. 1999). We also do
not separately discuss Cummings' state civil rights claim
because the parties agree that the outcome is the same under
either federal or Maine law. This opinion therefore addresses
only Cummings' federal substantive due process claim against
McIntire.

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 The relevant facts are essentially undisputed for purposes

of our review,2 which is de novo. See Underwriters at Lloyd's

v. Labarca, 260 F.3d 3, 7 (lst Cir. 2001). On the morning of

October 4, 1998, appellee McIntire was assigned with two other

uniformed officers to direct traffic at an intersection in

Portland, Maine, that was along the route of a road race taking

place that day. The corner, where Washington and Ocean avenues

cross, was a hectic scene of heavy traffic activity. The

officers periodically needed to stop cars or runners; they

sometimes allowed both vehicles and runners to move through at

the same time and at other times stopped all lanes of traffic to

allow the runners to pass. At about 9:20 a.m., appellant

Cummings arrived at the intersection looking for Arcadia Street.

When he encountered the race, he drove into the parking lot of

a nearby convenience store and got out of his car to ask a

volunteer for directions. She was busy with the race and

unfamiliar with Arcadia Street, and so she directed him to

Officer McIntire. Cummings approached the officer, who had

stopped cars and was looking right to left to check traffic as

runners started to come through the intersection. The district

2 Defendants reserved the right to dispute the plaintiffs'
version of the facts if the case proceeded to trial.

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court, borrowing from the factual summary prepared by the

magistrate judge, described the ensuing events as follows:

The officer . . . essentially [had his] back to
Cummings, with his head swiveling watching the traffic
and runners. Cummings moved only a step forward and
began to ask the officer for directions. From behind,
Cummings said, "Excuse me sir," waited for perhaps two
seconds and repeated, "Excuse me, sir." When no
traffic was moving and it was perfectly quiet,
Cummings began to ask his question, holding his right
arm out straight from his body at approximately a
forty-five degree angle. Cummings was standing
approximately four feet away from the officer.

To describe what happened next, the district court quoted

Cummings' affidavit:

18. Before I could complete my question, Officer
McIntire turned towards me and shoved me hard toward
the far curb of Washington Avenue.

19. As Officer McIntire shoved me, he was
verbally abusive to me. He yelled "IF YOU DON'T HAVE
A GODAMMED [sic] EMERGENCY GET THE HELL OUT OF HERE."

20. The force of the blow propelled me backwards
and I twisted violently in an effort to maintain my
balance.

Cummings did not fall, but reported that he suffered immediate

pain in his left back and left leg and foot. A pre-existing

medical condition made his neck vulnerable to fracture and

herniation, and he alleged that as a result of McIntire's shove

he underwent back surgery and has since "suffered stabbing pain,

and permanent impairment."

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 Cummings subsequently filed this action alleging deprivation

of his right to be free from the use of excessive and

unreasonable force pursuant to the Fifth and Fourteenth

Amendments to the United States Constitution and analogous Maine

constitutional provisions.

The magistrate judge concluded that McIntire's alleged behavior

was sufficiently egregious that a jury would be permitted to

find that it "shocked the conscience," but he found no

evidentiary basis for holding either the police chief or the

city responsible for McIntire's conduct.

The district court agreed that McIntire's behavior deserved

censure, but disagreed with the magistrate judge's legal

conclusion. He termed the conduct "deserving of discipline,"

but stated that it does not "'shock the conscience' in the way

the Supreme Court or the First Circuit has used those terms."

The court therefore granted summary judgment for all defendants

on all claims. As explained earlier, see note 1 supra, only the

substantive due process claim against McIntire is before us.

II. Discussion

Claims of excessive force by a police officer arising

outside the context of a seizure, and thus outside the Fourth

Amendment, are analyzed under substantive due process

principles. See County of Sacramento v. Lewis, 523 U.S. 833, 843

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(1998); Evans v. Avery, 100 F.3d 1033, 1036 (lst Cir. 1996).

The dispositive question in such an analysis is whether the

challenged conduct was so extreme as to "shock the conscience."

Lewis, 523 U.S. at 846-47; Hasenfus v. LaJeunesse, 175 F.3d 68,

72 (lst Cir. 1999).

Various formulations have been used to identify conduct

sufficiently outrageous to meet that standard, which

deliberately was set high to protect the Constitution from

demotion to merely "a font of tort law," Lewis, 523 U.S. at 847

n.8, 848 (quoting Daniels v. Williams, 474 U.S. 327, 332

(1986)). Courts have held that the acts must be "such as 'to

offend even hardened sensibilities,'" Johnson v. Glick, 481 F.2d

1028, 1033 n.6 (2d Cir. 1973) (citation omitted), "uncivilized[]

and intolerable," Hasenfus, 175 F.3d at 72, "offensive to human

dignity," Rochin v. California, 342 U.S. 165, 174 (1952), or

must constitute force that is brutal, inhumane, or vicious, id.;

Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 726 (6th

Cir. 1996).

This is obviously not a standard with precise boundaries,

but in its lengthy discussion of substantive due process in

Lewis the Supreme Court noted certain uniform principles that do

operate: negligent conduct is "categorically beneath the

threshold of constitutional due process," while "behavior at the

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other end of the culpability spectrum," i.e., "conduct intended

to injure in some way unjustifiable by any government interest,"

is most likely to support a substantive due process claim. 523

U.S. at 849. 3 When the culpability resulting in injury falls

somewhere between these extremes, it is "a matter for closer

calls," id., and whether conduct is actionable as a due process

violation will depend upon the context in which it occurs:

Deliberate indifference that shocks in one environment
may not be so patently egregious in another, and our
concern with preserving the constitutional proportions
of substantive due process demands an exact analysis
of circumstances before any abuse of power is
condemned as conscience-shocking.

Id. at 850.

The Court illustrated the importance of context by

contrasting normal pretrial custody with high-speed law

enforcement chases. In the case of a sudden pursuit, with

virtually no opportunity for officers to deliberate, much more

outrageous behavior would be tolerated than in the typical

prison setting, where "forethought about an inmate's welfare is

not only feasible but obligatory." Id. at 851. Accordingly,

"mid-level" fault, such as recklessness or deliberate

3 The Court noted that "the constitutional concept of
conscience-shocking duplicates no traditional category of
common-law fault, but rather points clearly away from liability,
or clearly toward it, only at the ends of the tort law's
spectrum of culpability." Lewis, 523 U.S. at 848.

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indifference, is insufficient for due process liability in

circumstances demanding instant judgment; to obtain redress in

a sudden pursuit case, the Court held, a plaintiff must show

"intent to harm suspects physically or to worsen their legal

plight." Id. at 854. By contrast, deliberate indifference may

be enough to shock the conscience where the claim arises from

the state's alleged failure to provide those in its custody,

say, a prisoner, with decent care and protection. Id. at 851-

52.

This is a case whose factual context falls within the middle

ground, neither so tense and rapidly evolving as a high-speed

police pursuit nor so unhurried and predictable as the ordinary

custodial situation. Some courts approach such cases by

assessing the facts pursuant to a test formulated by Judge

Friendly in Johnson, 481 F.2d at 1033, with which we

substantially agree:

In determining whether the constitutional line has
been crossed, a court must look to such factors as the
need for the application of force, the relationship
between the need and the amount of force that was
used, the extent of injury inflicted, and whether
force was applied in a good faith effort to maintain
or restore discipline or maliciously and sadistically
for the very purpose of causing harm.

See, e.g., Neal v. Fulton County Bd. of Educ., 229 F.3d 1069,

1076 (11th Cir. 2000); Petta v. Rivera, 143 F.3d 895, 902 (5th

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Cir. 1998); Thompson v. Olson, 798 F.2d 552, 558-59 (lst Cir.

1986).

Appellant argues that liability should attach because

Officer McIntire's conduct was at the most reprehensible end of

the culpability spectrum; he claims that the shove bespoke an

intent to injure that lacked justification. Because such intent

suffices to support constitutional liability against officers in

even the most stressful circumstances, appellant claims that the

district court erred in dismissing his claim.

We are constrained to conclude otherwise. While there is

no doubt that McIntire unnecessarily utilized physical force, we

agree with the district court that the record does not permit a

finding that he did so "maliciously and sadistically for the

very purpose of causing harm," Johnson, 481 F.2d at 1033. At

the time he acted, McIntire was juggling drivers and runners in

a busy location, swiveling his head to be sure no problems

arose.4 In such circumstances, a hard shove accompanied by

abusive language, whose evident purpose – as even appellant

acknowledges – was to get Cummings out of the way,5 does not in

4Although the cars were stopped when appellant approached
McIntire, the officer was still obliged to be alert to the
traffic and joggers.
5 In his brief, Cummings notes that McIntire intended to
strike him with sufficient force "so as to propel [appellant]
out of his space and to send a sharp message about what

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our view constitute the "brutal" and "inhumane" conduct

necessary to establish a due process violation.

The Due Process Clause is intended to prevent government

officials "from abusing [their] power, or employing it as an

instrument of oppression," Lewis, 523 U.S. at 846 (internal

citation omitted); here, the officer's action was reactive

rather than reflective, seemingly inspired by a "careless or

unwise excess of zeal" in communicating his displeasure with

Cummings' interruption, rather than by a purpose to harm. See

Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. 1981). It

is true that appellant suffered a severe injury. The severity

of the injury in the ordinary case may be a fair proxy for

egregious behavior leading to liability, as Johnson suggests. It

is not so much here because plaintiff had an unusual medical

condition, making him peculiarly vulnerable.6 Cf. Shillingford,

634 F.2d at 266 (finding constitutional liability where police

officer struck plaintiff in the face with a nightstick, even

though only minor injury occurred, because it was "merely

consequences would flow from further interference."
6Cummings disputed the assertion in defendants' Statement
of Material Facts that he required surgery "[a]s a result of a
chronic preexisting condition," but stated in his affidavit that
he had undergone cervical spine fusion in 1990 and, as a result,
his neck was "vulnerable to fracture, herniation, and to being
paralyzed." In his brief, Cummings states that he "just happens
to be an eggshell skulled plaintiff."

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fortuitous" that the results of the attack were not

"crippling").7

A look at the facts underlying other substantive due process

claims helps place this case into perspective and reinforces our

conclusion that McIntire's conduct was not of constitutional

dimension. Among the cases in which plaintiffs have prevailed8

are those involving a student blinded in one eye when a coach

intentionally struck him in the head with a metal weight, see

Neal, 229 F.3d at 1076; a teacher's fabrication of sexual abuse

charges against a father, resulting in loss of contact with his

child for three years, see Morris v. Dearborne, 181 F.3d 657,

668 (5th Cir. 1999); rape by a police officer in connection with

a car stop, see Rogers v. City of Little Rock, 152 F.3d 790, 797

(8th Cir. 1998); a 57-day unlawful detention in the face of

repeated requests for release, see Armstrong v. Squadrito, 152

F.3d 564, 582 (7th Cir. 1998); police officers aiding a third-

party in shooting the plaintiff, see Hemphill v. Schott, 141

F.3d 412, 419 (2d Cir. 1998); an intentional assault by a police

officer who struck a pretrial detainee twice in the head and

threatened to kill him, see Johnson, 481 F.2d at 1029-30; and a

7 If liability were established, the extent of injury would
be relevant to damages.
8 These cases do not address ultimate liability; they review
dismissals or grants of summary judgment in favor of defendants.

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principal forcing his way into a room where a student was

hiding, grabbing her from the floor, throwing her against the

wall, and slapping her, see Webb v. McCullough, 828 F.2d 1151,

1159 (6th Cir. 1987). The conduct in these cases, involving

serious physical intrusions or sustained abuse, differs markedly

from McIntire's isolated, intemperate outburst.

The encounter here has much more the feel of those cases in

which courts have rejected due process claims, notwithstanding

the contemptible conduct at issue. Defendants prevailed where

police officers allegedly engaged in months of harassment and

intimidation and pushed one plaintiff, who suffered a

miscarriage two days later, see Cruz-Erazo v. Rivera-Montanez,

212 F.3d 617, 623-24 (lst Cir. 2000); a teacher slapped a

student a single time in anger and without justification, see

Lillard, 76 F.3d at 726; a murder suspect committed suicide

after prosecutors encouraged the media to link him to a series

of murders, see Souza v. Pina, 53 F.3d 423, 427 (lst Cir. 1995);

and, officers allegedly threatened more than once to kill the

plaintiff and told her young children that if the police caught

their father they would never see him again, see Pittsley v.

Warish, 927 F.2d 3, 9 (lst Cir. 1991).

Plaintiff gives particular emphasis to Shillingford, 634

F.2d at 263, in which a tourist was struck by a police officer

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while attempting to photograph the arrest of a Mardi Gras

reveler. The tourist was uninvolved in and not interfering with

the police action. The officer intentionally struck the

tourist's camera with his nightstick, which destroyed the camera

and smashed it into the tourist's face, lacerating his forehead.

The court found the assault to be sufficiently severe to

establish a deprivation of constitutional rights. Id. at 266.

Shillingford offers only limited support for appellant's

position. As in that case, the attack here is fairly described

as "unprovoked and unjustified," 634 F.2d at 266. But the

surrounding circumstances were notably different: unlike in

Shillingford, the unjustified conduct was an open-handed shove

rather than a direct strike with a weapon. The likely potential

for injury from the push was substantially less than for use of

the nightstick. In addition, as noted earlier, rather than

reflecting a deliberate effort to do harm, the message behind

McIntire's conduct was reasonably understood to be simply "get

out of my way."

McIntire's violent conduct unquestionably was inconsistent

with his public responsibilities as a police officer and

deserves condemnation. As a member of law enforcement, he had

a particular obligation to exercise restraint, no matter how

stressful the circumstances may have felt to him. Yet, to

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equate his outburst with such brutal conduct as a rape, a nearly

two-month unlawful imprisonment, a shooting, or repeated

physical assaults would be to lower the very high threshold for

constitutional wrongdoing. "[O]nly the most egregious official

conduct can be said to be 'arbitrary in the constitutional

sense,'" Lewis, 523 U.S. at 846 (internal citation omitted).

Were we to hold that this level of police officer misconduct

was reached by the conduct at issue here, involving bad judgment

and vile temper in a situation of some stress, we would go far

toward making the due process clause "a surrogate for local tort

law or state statutory and administrative remedies," Hasenfus,

175 F.3d at 74. We find the Supreme Court's assessment of the

circumstances in Lewis equally applicable here:

Regardless whether [McIntire]'s behavior offended the
reasonableness held up by tort law or the balance
struck in law enforcement's own codes of sound
practice, it does not shock the conscience . . . .

523 U.S. at 855.

The district court's grant of summary judgment for defendant

is therefore affirmed.

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