United States Court of Appeals
For the First Circuit
No. 05-2727
MICHAEL S. McCONKIE,
Plaintiff, Appellant,
v.
SCOTT NICHOLS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Selya, Circuit Judge,
Hug,* Senior Circuit Judge,
and Howard, Circuit Judge.
Christopher K. MacLean, for appellant.
William R. Fisher, Assistant Attorney General, with whom G.
Steven Rowe, Attorney General of Maine, was on brief, for
appellee.
May 15, 2006
*
Of the Ninth Circuit, sitting by designation.
HUG, Circuit Judge. Michael McConkie appeals the
District Court’s decision to grant summary judgment to Maine State
Police Detective Scott Nichols. In his First Amended Complaint,
McConkie alleged that he was entitled to relief under 42 U.S.C.
§§ 1983 and 1988 because Nichols violated his constitutional right
to substantive due process in the course of questioning him about
suspected sexual abuse of a ten-year-old child. The District
Court granted Nichols summary judgment on the ground that no
reasonable factfinder could find that Nichols’s conduct was
conscience-shocking. We affirm.
McConkie’s claim arose out of a tape-recorded, non-
custodial interview with Detective Nichols on June 23, 1998.
Nichols had set up the interview after speaking to a boy who said
that McConkie had sexually abused him. The transcript of the
interview indicates that Nichols was aware of McConkie’s criminal
history and that McConkie acknowledged to Nichols that he had been
placed in an intense therapy program because of his sexual
behavior.
During the interview, Nichols told McConkie that "this
stuff stays confidential, especially because a juvenile is
involved." Later in the interview, McConkie admitted to sexual
contact with the child.
These admissions were introduced at McConkie’s
subsequent criminal trial, but McConkie does not base his claims
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on the use of the admissions; rather, he bases his claims on the
tactics Nichols used in the interview. In particular, in his
First Amended Complaint, McConkie alleged that Nichols
intentionally deceived him about his Fifth Amendment right against
self-incrimination when he made the statement that the information
would stay confidential. He further alleged that this violated
his substantive due process rights and that he therefore was
entitled to relief under 42 U.S.C. §§ 1983 and 1988.
Nichols denied the material allegations of the complaint
and asserted affirmative defenses, including that his conduct did
not shock the conscience. On February 3, 2005, Nichols moved to
dismiss the First Amended Complaint and, alternatively, moved for
summary judgment on the ground that McConkie had not alleged
conscience-shocking conduct, an essential element of a substantive
due process claim. The judge ultimately denied Nichols’s motion
to dismiss, but granted Nichols summary judgment on the ground
that, as a matter of law, Nichols’s conduct did not shock the
conscience.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review a District Court’s grant of summary judgment de novo,
viewing all facts in the light most favorable to the nonmoving
party and granting all reasonable inferences in that party’s
favor. Torres v. E.I. DuPont De Nemours & Co., 219 F.3d 13, 18
(1st Cir. 2000). Summary judgment is appropriate if there is no
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genuine issue as to any material fact and the moving party is
entitled to judgment as a matter of law. Id.
McConkie rests his claims solely on substantive due
process grounds, not on the Fifth Amendment. When a case, like
this one, involves an alleged abuse of power by the executive
branch, the claim is cognizable as a violation of substantive due
process “only when it is so extreme and egregious as to shock the
contemporary conscience.” DePoutot v. Raffaelly, 424 F.3d 112,
118 (1st Cir. 2005). “The ‘shock the conscience’ inquiry requires
a comprehensive analysis of the attendant circumstances before any
abuse of official power is condemned as conscience-shocking.” Id.
at 119. Examining all the attendant circumstances here, we hold
that no reasonable juror could find that Nichols’s conduct shocked
the conscience.
In order to shock the conscience, the conduct must be
“truly outrageous, uncivilized, and intolerable.” Hasenfus v.
LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999). The Due Process
Clause does not impose liability every time someone with state
authority causes harm; otherwise, “the Constitution would be
downgraded to a ‘font of tort law.’” DePoutot, 424 F.3d at 118
(citation omitted). In DePoutot, we summarized the meaning of
“shocks the conscience” as follows:
While the “shock the conscience” standard is imprecise,
it is a helpful guide. Conceptually, it does not
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replicate, or even draw upon, negligence law. Rather,
this metric “points clearly away from liability, or
clearly toward it, only at the ends of the tort law’s
spectrum of culpability.” It is, therefore, readily
apparent that negligent conduct, simpliciter, is
categorically insufficient to shock the conscience.
Executive branch action that sinks to the depths of
shocking the contemporary conscience is much more likely
to find its roots in “conduct intended to injure in some
way unjustifiable by any government interest.”
Consistent with these principles, we have stated that
“the requisite arbitrariness and caprice” for a
conscience-shocking executive action “must be stunning,
evidencing more than humdrum legal error.”
Id. at 119 (internal citations omitted). Even violations of the
law resulting from bad faith do not necessarily amount to
unconstitutional deprivations of substantive due process; conduct
that is “more egregious and more extreme” is required. Id.
Conscience-shocking conduct usually entails physical or
psychological abuse, or significant interference with a protected
relationship, such as the parent-child relationship. See, e.g.,
Rochin v. California, 342 U.S. 165, 172 (1952) (forcibly pumping
suspect’s stomach for drugs); Harrington v. Almy, 977 F.2d 37, 43-
44 (1st Cir. 1992) (conditioning employment on taking highly
intrusive physical test of sexual arousal); Grendell v. Gillway,
974 F. Supp. 46, 51 (D. Me. 1997) (reasoning that it struck at the
basic fabric of the parent-child relationship for officer to tell
a girl that her parents would be arrested and she would be in
trouble if she did not tell officers about her parents’ drug use).
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Nichols did not engage in physical or psychological abuse or
interfere with a protected relationship.
Even where an officer questions a suspect in an unlawful
manner, this does not necessarily mean that the questioning
entitles the plaintiff to damages under section 1983; the Supreme
Court has recognized that it would be inappropriate to impose tort
liability every time an officer obtains an involuntary self-
incriminating statement or the police fail to honor Miranda v.
Arizona, 384 U.S. 436 (1966). See Chavez v. Martinez, 538 U.S.
760, 779-80 (2003). As the Supreme Court has noted, exclusionary
rules rather than damages often can provide the deterrent
necessary to deter unlawful questioning. Id.
McConkie essentially argues that it is the fact that
Nichols lied in the course of the questioning that is conscience-
shocking. Even construing Nichols’s statements as lies, lies
alone are not necessarily considered conscience-shocking. See,
e.g., Cruz-Erazo v. Rivera-Motanez, 212 F.3d 617, 623 (1st Cir.
2000) (holding that it was not conscience-shocking for police
officers to deliberately lie in official documents and perjure
themselves in official court proceedings); United States v. Byram,
145 F.3d 405, 408-09 (1st Cir. 1998) (holding that not all false
statements made by officers to elicit confessions are outrageous
or uncivilized).
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McConkie contends, however, that Nichols’s conduct was
particularly egregious because, by telling McConkie that his
statement would remain confidential, Nichols knowingly
misrepresented the nature of McConkie’s Fifth Amendment rights.
Although such conduct is not something to be condoned, a
reasonable juror could not find that it is so egregious that it
shocks the conscience. We have deemed more offensive conduct not
to be conscience-shocking. See, e.g., Cruz-Erazo v. Rivera-
Motanez, 212 F.3d 617; Hasenfus, 175 F.3d at 74 (holding that
school’s failure to take action to prevent child from committing
suicide was not even close to meeting the standard for shocking
the conscience); Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir.
1991) (holding that it may have been “despicable and wrongful” for
officer to tell young children that they would never again see the
man they viewed as their father, but it did not shock the
conscience).
McConkie suggests that, because there was no legitimate
interest in Nichols lying about McConkie’s constitutional rights,
the lies are conscience-shocking. It is true that executive
branch action that is unjustified by any government interest is
more likely to shock the conscience. DePoutot, 424 F.3d at 119.
However, even if we assume that Nichols was not acting out of
concern that a pedophile was loose and could molest another child
any day, the fact that an officer acts in a way that does not
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further a government interest is not sufficient to show that the
conduct is conscience-shocking. The First Circuit has, on more
than one occasion, found that misconduct that furthered no
government interest was not conscience-shocking. See, e.g., Cruz-
Erazo, 212 F.3d at 622-24; Souza v. Pina, 53 F.3d 423, 427 (1st
Cir. 1995)(holding that it did not shock the conscience for
prosecutors to hold press conference accusing suicidal man of
committing serial murders); Pittsley, 927 F.2d at 6-7.
In some circumstances, it might be conscience-shocking
for an officer to elicit or provide knowingly false information
about a suspect. See Limone v. Condon, 372 F.3d 39, 45 (1st Cir.
2004) (deliberately fabricating evidence to frame someone for a
crime the person did not commit and to protect the true
perpetrators was a violation of due process); but see Cruz-Erazo,
212 F.3d at 623. However, even assuming that McConkie’s
admissions were false, examining the evidence in the light most
favorable to McConkie, there is no evidence that Nichols was
trying to elicit a false confession. In fact, Nichols told
McConkie that he just wanted the truth.
Thus, as a matter of law, Nichols did not engage in
conduct that shocks the conscience, and the District Court
properly granted summary judgment.
Affirmed.
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