McConkie v. Nichols

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

-2-
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

-3-
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

-4-
 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).

-5-
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).

-6-
 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

-7-
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.

-8-