United States Court of Appeals
For the First Circuit
Nos. 06-1720, 06-2228
YVETTE LOCKHART-BEMBERY,
Plaintiff, Appellant/Cross-Appellee,
v.
DANIEL SAURO,
Defendant, Appellee/Cross-Appellant,
TOWN OF WAYLAND POLICE DEPARTMENT; ROBERT IRVING, in his capacity
as Chief of the Wayland Police Department,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Newman,* and Lynch,
Circuit Judges.
Andrew M. Fischer, with whom Jason & Fischer was on brief,
for Yvette Lockhart-Bembery.
Leonard H. Kesten, with whom Jeremy Silverfine, Dierdre
Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP, were on
brief, for Daniel Sauro.
*
Of the Federal Circuit, sitting by designation.
August 9, 2007
LYNCH, Circuit Judge. Routine police assistance to a
disabled motorist whose car posed a traffic hazard on a busy road
was transmogrified into a civil rights action under 42 U.S.C.
§ 1983. The plaintiff alleged, inter alia, that the officer
violated her Fourth Amendment rights when he instructed her to move
her car or it would be towed, she did so, and she was injured. She
also alleged a violation of her Fourteenth Amendment substantive
due process rights on a state-created danger theory. A jury found
an undefined violation of the plaintiff's civil rights. It
attempted to award damages of $0, however, and when told by the
judge that such an award was inconsistent with a finding of
liability, awarded only $1. Because the jury awarded $1, the court
awarded plaintiff attorney's fees. On the basis that plaintiff had
prevailed on only one of her five claims, the court reduced the
requested amount by approximately 73%, to $12,946.
Each side has appealed various rulings. We cut to the
chase. It is clear on this record that plaintiff, even on her best
evidence, does not state a viable § 1983 claim on either a Fourth
Amendment or a substantive due process theory. No properly
instructed jury could have found a violation of constitutional
rights on the evidence. The trial court thus erred in not granting
defendant Daniel Sauro's post-trial Rule 50(b) motion. We vacate
the judgment against Sauro and the award of attorney's fees to
plaintiff, and direct entry of judgment for defendant.
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I.
Because our resolution of the case turns on our review of
the district court's denial of Sauro's Rule 50(b) motion, we recite
the facts in the light most favorable to Lockhart-Bembery. Webber
v. Int'l Paper Co., 417 F.3d 229, 233 (1st Cir. 2005).
The facts are these. Before 8:30 a.m. on February 6,
2002, Lockhart-Bembery left her home in Framingham to go to
Waltham. Snow was on the ground, although the roads themselves
were clear, and the day was cold. Lockhart-Bembery was driving a
1988 Cadillac Seville -- a relatively large car. Traveling
eastbound along Route 30, Lockhart-Bembery noticed that her car had
lost power, so she coasted along until she found a place to stop at
the side of the road. There was an upward incline in the road at
the place where Lockhart-Bembery stopped. Lockhart-Bembery
testified that "[t]o the best of [her] recollection," she was
generally successful in getting all of her car out of the eastbound
travel lane.1
The place where Lockhart-Bembery stopped was in Natick,
mere feet past the border with the neighboring town of Wayland. A
curve in Route 30 as it approaches this location from the west
limits visibility.
1
Two other witnesses disputed this. Officer Sauro
testified that more than half of the width of Lockhart-Bembery's
car was blocking the road. A second witness, a passing motorist,
testified that it was impossible to pull completely out of traffic
and that three-fourths of the car was jutting into the road.
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After bringing her car to a stop, Lockhart-Bembery
concluded that it was not safe for her to remain in her car because
she could be hit by an eastbound car. Using a passing driver's
telephone, Lockhart-Bembery called AAA for assistance. AAA said
that they would arrive shortly, and that her call had "priority"
because of the location where she had broken down. Shortly
thereafter, another passing motorist observed Lockhart-Bembery's
car and thought that Lockhart-Bembery was slumped over the steering
wheel of her car.2 The motorist called the police to report as
much.
Sauro, a Wayland police officer, responded within five or
ten minutes. Lockhart-Bembery told Sauro that she had called AAA
for a tow, and that they had put a priority on her request.
Lockhart-Bembery testified that Sauro then walked around
the car and told her to "move the car or it [would] be towed." She
responded that she was unable to move the car because it had no
power. According to Lockhart-Bembery, Sauro's response was: "No,
it doesn't have any power, but just put it in neutral and push it
back[,] steering with the steering wheel."
Lockhart-Bembery got into the car to shift it into
neutral, then got back out of the car and turned the steering wheel
as much as she could. Facing the rear of the vehicle, she then
2
Lockhart-Bembery later told the motorist that she had
been checking fuses to see if she could find the source of the
problem.
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pushed the car, with the driver's door open, by the frame between
the front and rear doors. While doing so, she kept one hand on the
steering wheel to try to direct the car. The car rolled slowly
back and partway into a driveway with a downward slope. It then
came to rest on its own.
Lockhart-Bembery testified that Sauro, who was then using
the radio in his car some distance down the road, yelled at her,
"That's not where I told you to put it." Lockhart-Bembery asked
Sauro where she should put the car, and he responded only with a
vague gesture while he continued to talk on the radio. Lockhart-
Bembery understood the gesture to mean that she should move her car
closer to Sauro's, so she once again began pushing the car.
Lockhart-Bembery testified that she was "inside the car" while she
pushed it, although she also stated that she was walking with the
car when it started to roll. Sauro testified that she was pushing
the car from the front bumper area. In any event, this time, the
car picked up speed as it rolled backwards down the incline of the
driveway. The car dragged Lockhart-Bembery, face-first and face-
down, down the hill with it until it collided with some trees and
stopped.
Lockhart-Bembery was taken by Medevac helicopter to the
hospital. She was later told that she had broken several bones,
including at least one rib and her shoulder blade. Lockhart-
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Bembery was kept in the hospital overnight for observation because
of a risk of head trauma. She was discharged the next morning.
In December 2003, Lockhart-Bembery filed suit against the
Wayland Police Department, its Chief, Robert Irving, and Officer
Sauro in Massachusetts Superior Court. The suit alleged a § 1983
claim, various state law theories of tort liability, and a
violation of Mass. Gen. Laws ch. 12, § 11I, the state civil rights
statute. The § 1983 claim was based on multiple theories,
including a theory that Sauro had unconstitutionally seized
Lockhart-Bembery in violation of her Fourth Amendment rights, and
a state-created danger theory that Sauro had violated her
Fourteenth Amendment substantive due process rights. The
defendants removed the case to federal district court. See 28
U.S.C. § 1441. The defendants eventually moved for summary
judgment.
In opposing summary judgment on her § 1983 claim,
Lockhart-Bembery affirmatively disclaimed any argument that Officer
Sauro had violated her Fourth Amendment rights. She claimed only
that there was a triable issue on her state-created danger due
process claim. Nonetheless, the Fourth Amendment theory somehow
was submitted to the jury.
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The district court denied summary judgment on the
negligence, state civil rights act, and § 1983 claims.3 The court
further denied qualified immunity to Sauro on the § 1983 claim.
The case was tried before a jury. As to Lockhart-
Bembery's Fourth Amendment theory, the court instructed the jurors:
The Fourth Amendment of the United States
Constitution provides [that] "the right [of]
the people to be secure in their persons,
houses, papers[,] and effects against
unreasonable searches and seizures shall not
be violated." To prove . . . her Section 1983
claim, the plaintiff must prove . . . that Mr.
Sauro violated her right to be secure in her
person by ordering her to push her car in the
circumstances that existed on February 6,
2002.
As to Lockhart-Bembery's Fourteenth Amendment due process theory,
the court's instructions offered the jurors what appeared to be two
separate theories of liability:
[T]he Fourteenth Amendment of the United
States Constitution [protects] the right to be
free from and to obtain judicial relief for
unjustified intrusions on personal security.
If you find that the Defendant Mr. Sauro
ordered the plaintiff to push her car farther
off the road and that he did so in violation
of her right to be secure in her person, then
you may find that the defendant deprived the
plaintiff of her Fourteenth Amendment right to
due process of law.
3
The district court granted summary judgment on the
remainder of Lockhart-Bembery's state law claims, including the
only two claims, for negligent supervision, alleged against the
Police Department and the Chief of Police. The Town of Wayland
remained a defendant in the case, presumably under the theory that
it would indemnify Sauro should he be found liable for damages.
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[Additionally], the plaintiff . . .
claims that Mr. Sauro's action constituted a
state-created danger which caused harm to
her. . . . A citizen has a constitutional
right to be protected from such harm. A
state-created danger occurs when an officer,
through an affirmative action, increases the
threat of harm to an individual. If you find
that . . . Mr. Sauro, while acting in his
capacity as a Wayland police officer, took an
affirmative action that placed the plaintiff
in a worse position of danger than if he had
not acted at all, then you may find that Mr.
Sauro's actions constituted a state-created
danger.
Following the charge, Sauro's attorney objected to the instructions
that if the jury found that Sauro had ordered Lockhart-Bembery to
move her car, they could find a violation. The court overruled the
objection.
The verdict form did not distinguish between plaintiff's
Fourth Amendment and due process theories on her § 1983 claim. It
merely asked whether the plaintiff's civil rights had been
violated.4 The jury answered "yes" to that question, although it
also concluded that plaintiff had not made out her state law civil
4
Lockhart-Bembery's counsel also referred to his client's
race in closing argument, saying, "[Defendant's counsel] says,
well, why would he [Sauro] do that. Well, maybe because she's
black. Maybe because she's wearing a veil." There was, however,
no discrimination claim made in this case.
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rights claim.5 The jury rejected Lockhart-Bembery's state law
negligence claim.
As an initial matter, the jury awarded zero dollars in
damages. The district court informed the jury that a zero damages
award was not consistent with a finding of liability on the § 1983
claim. Fifteen minutes later, the jury returned with a nominal
damages award of $1.
Each side filed a post-trial motion. Sauro filed a Rule
50(b) motion arguing, inter alia, that he was entitled to judgment
as a matter of law on the § 1983 claim. The district court denied
the motion. The court reasoned that there was sufficient evidence
of a Fourth Amendment seizure, as a reasonable person in Lockhart-
Bembery's situation would not have felt free to leave her encounter
with Sauro or to disobey his "order" to move the car. The court
stated that even if Sauro's actions fell within the community
caretaking doctrine of the Fourth Amendment, they were not
necessarily reasonable. The court stated that the question of
whether Sauro's actions were reasonable was one for the jury; the
implication was that the evidence was sufficient to support a
finding that Sauro had not acted reasonably. The court also held
5
The court had correctly instructed the jury that it could
not find a state law civil rights violation unless the interference
with Lockhart-Bembery's civil rights was the result of "threats,
intimidation[,] or coercion." The jury concluded that Sauro had
violated Lockhart-Bembery's federal constitutional rights, but that
this violation did not involve threats, intimidation, or coercion.
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that the evidence was sufficient to show a due process violation
pursuant to the state-created danger theory. This was so because
Sauro's actions "could have been found to create or increase the
danger to plaintiff." Finally, the court rejected Sauro's claim
that he was entitled to qualified immunity.
The court also rejected the parties' arguments that a new
trial was needed on § 1983 liability (as Sauro had argued) or
damages (as Lockhart-Bembery had argued). Additionally, the court
disagreed with Lockhart-Bembery's claim that the verdict on the
negligence claim was inconsistent with the verdict on the § 1983
claim. The court did award plaintiff about 27% of the attorneys'
fees that she had requested. Both sides appealed.
II.
We review the denial of Sauro's Rule 50(b) motion de
novo, viewing the evidence in the light most favorable to Lockhart-
Bembery. Webber, 417 F.3d at 233. Because Lockhart-Bembery's
claim was brought under § 1983, the verdict for her may stand only
if there was evidence that Sauro violated her constitutional
rights. Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979) ("It is
for violations of . . . constitutional and statutory rights that 42
U.S.C. § 1983 authorizes redress; that section is not itself a
source of substantive rights, but a method for vindicating federal
rights elsewhere conferred by those parts of the United States
Constitution and federal statutes that it describes."); see also
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Wilson v. City of Boston, 421 F.3d 45, 53-54 (1st Cir. 2005)
(considering first, in a case with a similar procedural posture,
whether there was a constitutional violation). There was no such
evidence.
A. The Fourth Amendment Claim
We begin with Lockhart-Bembery's Fourth Amendment theory.
Lockhart-Bembery affirmatively abandoned her Fourth Amendment
theory in the course of opposing summary judgment, and that should
have disposed of the claim. Since the jury was nonetheless asked
to address it, however, we reach the issue.
The district court erred as a matter of law in denying
Sauro's Rule 50 motion on the Fourth Amendment theory of liability.
Our analysis of Lockhart-Bembery's Fourth Amendment claim is
governed by the community caretaking doctrine set forth in Cady v.
Dombrowski, 413 U.S. 433 (1973). In Cady, the Supreme Court
recognized that warrantless searches and seizures of a car can be
permissible under the Fourth Amendment when they stem from
"community caretaking functions, totally divorced from the
detection, investigation, or acquisition of evidence relating to
the violation of a criminal statute." Id. at 441. As this court
has said, the "community caretaking" label "is a catchall for [a]
wide range of [police] responsibilities," and it squarely includes
"[d]ealing with vehicle-related problems." United States v.
Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir. 1991).
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The question, then, is not, as the district court stated,
whether there was a seizure. The district court apparently focused
on Lockhart-Bembery's state of mind in determining that there had
been a seizure. This focus apparently was based on language from
United States v. Mendenhall, 446 U.S. 544 (1980), stating that a
person has been "seized" if "a reasonable person would have
believed that he was not free to leave." Id. at 554. But under
the community caretaking doctrine, police action can be
constitutional notwithstanding the fact that it constitutes a
seizure. See Rodriguez-Morales, 929 F.3d at 785.
The imperatives of the Fourth Amendment are satisfied in
connection with the performance of non-investigatory duties,
including community caretaking tasks, so long as the procedure
involved and its implementation are reasonable. Id. The community
caretaking doctrine gives officers a great deal of flexibility in
how they carry out their community caretaking function. See id.
The ultimate inquiry is whether, under the circumstances, the
officer acted "within the realm of reason." Id. at 786; see also
United States v. Coccia, 446 F.3d 233, 239 (1st Cir. 2006)
("[I]mpoundments of vehicles for community caretaking purposes are
consonant with the Fourth Amendment so long as the impound decision
was reasonable under the circumstances."). Reasonableness does not
depend on any particular factor; the court must take into account
the various facts of the case at hand. See Coccia, 446 F.3d at
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239-40. No reasonable finder of fact could have found that Sauro's
actions were not within the realm of reason.
Lockhart-Bembery argues that Sauro acted unreasonably
when, knowing that the activity was potentially dangerous, he
"ordered" her to push her car. The "order" that Lockhart-Bembery
refers to is Sauro's statement that if she did not move her car, it
would be towed, his subsequent explanation to her of how she could
move the car when it lacked power, and his vague hand gesture
indicating to where she should move the car. She testified that
she believed that the car, if not moved, would be "towed by the
police. Consequently, it could be impounded or it could be taken
to a garage that [she] had no way of knowing where it would be."
That plaintiff did not want to suffer the inconvenience of having
her car towed was understandable. Even if the officer's actions
were viewed as an order that she take steps to move her car into a
position in which it would pose less of a risk to others, however,
this was not a seizure. See Terry v. Ohio, 392 U.S. 1, 19 n.16
(1968) ("Obviously, not all personal intercourse between policemen
and citizens involves 'seizures' of persons. Only when the
officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude that
a 'seizure' has occurred."); United States v. Smith, 423 F.3d 25,
28 (1st Cir. 2005) ("In order to find a seizure, . . . we must be
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able to conclude that coercion, not voluntary compliance, most
accurately describes the encounter.").
Even if it were a seizure, it was plainly not
unreasonable. Police are entitled to remove disabled vehicles from
the streets in order to protect public safety and ensure the smooth
flow of traffic. See South Dakota v. Opperman, 428 U.S. 364, 369
(1976); Coccia, 446 F.3d at 238; Rodriguez-Morales, 929 F.2d at
785-86. Here, the evidence compelled a finding that there was a
legitimate safety concern. Lockhart-Bembery conceded that her car
was extremely close to the eastbound travel lane and posed a safety
hazard.6 See Rodriguez-Morales, 929 F.2d at 785 (recognizing that
safety concerns are implicated when a car is on the shoulder of a
highway). That concern was heightened here because the car was
located at a curve in the road, and so visibility was reduced for
approaching vehicles. Lockhart-Bembery herself testified that she
stepped out of her car because she feared it would be unsafe for
her to remain inside.
6
Although not necessary to our holding, it is also true
that there was not even a hint that Sauro's true motive was to look
for evidence of a crime. See Rodriguez-Morales, 929 F.2d at 787
("As long as impoundment pursuant to the community-caretaking
function is not a mere subterfuge for investigation, the
coexistence of investigatory and caretaking motives will not
invalidate the seizure."); cf. Colorado v. Bertine, 479 U.S. 367,
372-73 (1987) (finding an inventory search to be reasonable, and
hence constitutional, in part because there was no showing that the
police had "acted in bad faith or for the sole purpose of
investigation").
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To the extent Lockhart-Bembery argues that Sauro acted
unreasonably because there were other, less intrusive ways to
reduce the safety hazard, that argument fails as a matter of law.7
There is no requirement that officers must select the least
intrusive means of fulfilling community caretaking
responsibilities. Colorado v. Bertine, 479 U.S. 367, 373-74
(1987); Rodriguez-Morales, 929 F.2d at 786. In Rodriguez-Morales,
an officer discovered that an individual was driving with an
expired license, and he required the individual to drive the car to
the impound lot (accompanied by the officer), although other
options were available. 929 F.2d at 782-83. The actions Sauro
took here were within the realm of reason, regardless of whether
alternative reasonable options were also available.
We conclude that Sauro's actions were reasonable as a
matter of law. If the jury's verdict was based on a Fourth
Amendment theory of liability, the verdict was not supported by the
evidence.8
7
In particular, Lockhart-Bembery says that Sauro could
have directed traffic around the hazard (notwithstanding the fact
that this was potentially dangerous for him), and/or that he could
have simply waited for AAA to arrive.
8
The jury was never instructed on the community caretaking
doctrine, nor was it instructed that the issue was not whether
Lockhart-Bembery had been seized, but whether Sauro's actions were
reasonable within the community caretaking doctrine.
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B. The State-Created Danger Theory
Lockhart-Bembery also argues that the jury's verdict
should be upheld because there was sufficient evidence that Sauro
violated her substantive due process rights. This argument is
based on a state-created danger theory. The district court
erroneously agreed that plaintiff had stated a viable theory that
Sauro "create[d] or increase[d] the danger to plaintiff" and so
denied Sauro's Rule 50 motion.
The district court relied on Frances-Colon v. Ramirez,
107 F.3d 62 (1st Cir. 1997), which stated that a substantive due
process claim might exist when a "government employee, in the rare
and exceptional case, affirmatively acts to increase the threat of
harm to the claimant or affirmatively prevents the individual from
receiving assistance." Id. at 64; cf. DeShaney v. Winnebago County
Dept. of Soc. Servs., 489 U.S. 189, 201 & n.9 (1989) (suggesting,
but not explicitly holding, that there can be a state-created
danger doctrine).
Even so, Frances-Colon went on to stress that "[a]
proximate causal link between a government agent's actions and a
personal injury does not, in itself, bring a case out of the realm
of tort law and into the domain of constitutional due process."
Id. As plaintiff concedes, there is a "further and onerous
requirement" that the state's actions "shock the conscience of the
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court."9 Rivera v. Rhode Island, 402 F.3d 27, 35 (1st Cir. 2005);
see also County of Sacramento v. Lewis, 523 U.S. 833, 846-50 (1998)
(discussing the shock-the-conscience test); Hasenfus v. LaJeunesse,
175 F.3d 68, 73 (1st Cir. 1999); cf. id. at 74 (distinguishing
between conscience-shocking and seriously negligent behavior, and
indicating that "manifestly outrageous" behavior qualifies as
conscience-shocking).
Lockhart-Bembery's claim fails on both prongs. The state
did not create the danger here. The location of plaintiff's car
posed a risk to others; it had to be moved. She recognized the
risk herself. She had the choice of moving it herself or having
the police tow it. She chose to move it herself and injured
herself in her second effort to move the car to a place where it
would be less of a hazard to others.
As we said in Rivera v. Rhode Island, while this court
and the Supreme Court have discussed the state-created danger
theory, neither has ever found the theory actionable on the facts
given. 402 F.3d at 34-35. Here, there is not even a special
relationship between the plaintiff and the state that could
arguably give rise to greater duties on the part of the police.
See DeShaney, 489 U.S. at 199-201 & n.9; Rivera, 402 F.3d at 38.
Even if, dubitante, Sauro rendered Lockhart-Bembery more vulnerable
9
The jury was not instructed on the second prong of the
substantive due process test. Nor was the jury correctly
instructed on the state-created danger theory.
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to risk, this still does not create a constitutional duty on the
part of the police to protect. Rivera, 402 F.3d at 37-38.
Since, as we have held, Sauro's actions were reasonable,
Lockhart-Bembery also cannot make out the second prong of a state-
created danger showing. She fails to meet the shock-the-conscience
test. Indeed, the jury rejected the claim that Sauro was even
negligent.
This court has held on facts far more troubling than
those present in this case that plaintiffs have failed to clear the
shock-the-conscience hurdle. In Cummings v. McIntire, 271 F.3d 341
(1st Cir. 2001), for example, an officer directing traffic in the
middle of the road was approached by a pedestrian asking for
directions. Id. at 343. Completely unprovoked, the officer
violently shoved the pedestrian; the pedestrian suffered permanent
back and leg injuries, and had he fallen in the street, he could
have been more seriously injured. Id. We stated that there was
"no doubt" that the officer had utilized unnecessary force. Id. at
345. But we held that his actions were not outrageous: his
behavior was motivated by safety concerns, and it did not
constitute "brutal" and "inhumane" conduct. Id. at 345-46. In
Rivera, a teenage murder witness was gunned down on the eve of
trial after the prosecution had subpoenaed her testimony and
promised to protect her from retribution. 402 F.3d at 30, 37-38.
Although it was not necessary to our holding in the case, we noted
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that the police conduct did not rise to the requisite level of
outrageousness. Id. at 38; see also Cummings, 271 F.3d at 346-47
(collecting First Circuit cases with fact patterns that did not
shock the conscience).
There was neither a state-created danger nor conscience-
shocking behavior here. If the jury's verdict was based on the
state-created danger theory, the verdict was not supported by the
evidence.
III.
Our holding that Sauro was entitled to judgment as a
matter of law on the § 1983 claim resolves the remaining issues in
this appeal. Lockhart-Bembery is no longer a prevailing party, so
she is not entitled to attorneys' fees. See 42 U.S.C. § 1988(b).
We need not consider the other issues.
The judgment against defendant entered by the district
court and the award of attorney's fees to plaintiff are reversed.
Judgment shall enter for defendant Sauro.
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Lockhart-Bembery v. Sauro
Court: Court of Appeals for the First Circuit
Date filed: 2007-08-09
Citations: 498 F.3d 69
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