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No. ALB-16-01
In theSUPREME COURT OF THE UNITED STATES
Adnan SIDD, individually and on behalf of the Estate of Tanner Sidd, Deceased,
PETITIONER,
v.
Will FRITZ, Gregory MACGILLRAY, Samuel BADCOOK,CITY OF HOMER, and HOMER CITY POLICE DEPARTMENT,
RESPONDENTS.
On Writ of Certiorari to the UNITED STATES COURT OF APPEALS
FOR THE FOURTEENTH CIRCUIT
BRIEF FOR RESPONDENTS
ALB-16-01-R2
ii
QUESTIONS PRESENTED
I. Whether the Court of Appeals correctly affirmed the District Court’s grant of Respondents’ motion for summary judgment because Petitioner’s First Amendment retaliatory arrest claim did not plead and prove an absence of probable cause for the underlying criminal offense.
II. Whether the Court of Appeals correctly affirmed the District Court’s grant of Respondents’ motion for summary judgment, where Petitioner failed to establish that Respondent Fritz’s conduct shocked the conscience or that Respondent Fritz’s conduct exposed Petitioner to a direct and foreseeable risk of immediate harm.
i
TABLE OF CONTENTS
Questions Presented............................................i
Table of Contents.............................................ii
Table of Authorities..........................................iv
Proceedings Below..............................................6
Constitutional Provisions......................................8
Statutory Provisions...........................................9
Statement of the Facts........................................10
Summary of the Argument.......................................13
Argument......................................................15
I. THE COURT OF APPEALS CORRECTLY AFFIRMED THE DISTRICT COURT’S GRANT OF SUMMARY JUDGMENT BECAUSE HARTMAN EXTENDS TO RETALIATORY ARREST CLAIMS REQUIRING PETITIONER TO PLEAD AND PROVE RESPONDENTS LACKED PROBABLE CAUSE TO ARREST.. .15
A. This Court should extend Hartman to criminal retaliatory arrest claims because probable cause is the only evidence available to defeat Petitioner’s allegation of causation.............................................16
1. Hartman’s first rationale that a plaintiff must prove a complex chain of causation is applicable to criminal retaliatory arrest claims............................18
2. Hartman’s second rationale that probable cause will always be proved at trial is applicable to criminal retaliatory arrest claims............................20
B. This Court should extend Hartman to criminal retaliatory arrest claims because probable cause is an objective standard that applies highly probative evidence of causation essential to the underlying criminal offense. . ....................................................21
II. THE COURT OF APPEALS CORRECTLY AFFIRMED THE DISTRICT COURT’S GRANT OF SUMMARY JUDGMENT BECAUSE EVEN THOUGH THERE IS NO FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST PRIVATELY INFLICTED HARM, RESPONDENT FRITZ DID NOT DEPRIVE PETITIONER OF A CONSTITUTIONAL RIGHT BECAUSE HIS CONDUCT DID NOT SHOCK THE CONSCIENCE OR CREATE A SEVERE RISK OF IMMEDIATE AND DIRECT HARM TO PETITIONER. . . ........................................25
A. Respondent has not deprived Petitioner of a Fourteenth Amendment Due Process Right...........................27
ii
1. The Fourteenth Amendment Due Process Clause does not impose an affirmative duty on the government to protect individuals from every conceivable harm..............27
3. Expanding substantive due process impermissibly supplants state tort law.............................28
C. Respondent Fritz did not deprive Petitioner of a constitutional right because Respondent’s conduct did not “shock the conscience” or create a severe risk of direct and immediate harm to Petitioner...............29
1. Petitioner did not suffer a deprivation of constitutional rights because Respondent’s conduct did not shock the conscience.............................31
4. The deliberate indifference standard is inappropriate without a custodial relationship.....................34
5. Petitioner has failed to demonstrate Respondent’s conduct created an immediate and foreseeable risk of harm specific to Petitioner..........................35
Conclusion....................................................40
iii
TABLE OF AUTHORITIES
United States Supreme Court CasesAtwater v. City of Lago Vista, 532 U.S. 318 (2001)........21, 22
Collins v. City of Harker Heights, Tex., 503 U.S. 115 (1992)
.........................................................passim
Cooper Indus. v. Leatherman Tool Grp., 532 U.S. 424 (2001) 15, 26
County of Sacramento v. Lewis, 523 U.S. 833 (1998). . . .31, 32, 33
Crawford-El v. Britton, 523 U.S. 574 (1998)...........22, 24, 25
Daniels v. Williams, 474 U.S. 327 (1986)..........29, 30, 31, 38
DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189
(1989)...................................................passim
Devenpeck v. Alford, 543 U.S. 146 (2004)..................22, 23
Estelle v. Gamble, 429 U.S. 97 (1976).........................34
Farmer v. Brennan, 511 U.S. 825 (1994)........................34
Graham v. Connor, 490 U.S. 386 (1989).........................24
Griswold v. Connecticut, 381 U.S. 479 (1965)..................27
Hartman v. Moore, 547 U.S. 250 (2006).....................passim
Hunter v. Bryant, 502 U.S. 224 (1991).........................23
Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672
(1992).......................................................15
Kentucky v. King, 131 S. Ct. 1849 (2011)......................24
Martinez v. California, 444 U.S. 277 (1980)...............passim
Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658 (1978). .
.........................................................29, 35
Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) . .
.........................................................17, 20
Paul v. Davis, 424 U.S. 693 (1976)............................29
Pickering v. Bd. of Educ., 391 U.S. 563 (1968)................20
Reichle v. Howards, 132 S. Ct. 2088 (2012)........16, 17, 18, 19
Rochin v. California, 342 U.S. 165 (1952).................26, 30
Ryburn v. Huff, 132 S. Ct. 987 (2012).........................24
iv
Saucier v. Katz, 533 U.S. 194 (2001)..........................31
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748 (2005). . .27
Other Federal CasesArmijo v. Wagon Mound Pub. Sch., 159 F.3d 1253 (10th Cir. 1998)
.............................................................37
Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982)................36
Butera v. D.C., 235 F.3d 637 (D.C. Cir. 2001).................28
D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d
1364 (3d Cir. 1992)..........................................35
Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909 (10th Cir. 2012)
.............................................................31
Johnson v. City of Seattle, 474 F.3d 634 (9th Cir. 2007)......38
Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998). .36
Saenz v. Heldenfels Bros., 183 F.3d 389 (5th Cir. 1999). . .36, 37
Ulrig v. Harder, 64 F.3d 567 (10th Cir. 1995).................32
Federal Statutory Provisions42 U.S.C. § 1983..........................................passim
Fed. R. Civ. P. 56(a).....................................15, 26
Secondary SourcesErwin Chemerinsky, The State-Created Danger Doctrine, 23 TOURO L.
REV. 1 (2007)................................................28
v
PROCEEDINGS BELOW
On June 17, 2015, Adnan Sidd (“Petitioner”) brought suit
against Officer Will Fritz, Detective Gregory MacGillray, Police
Chief Samuel Badcook, the City of Homer, and the Homer City
Police Department (“Respondents”) for alleged deprivations of
Petitioner’s First and Fourteenth Amendment rights in violation
of 42 U.S.C. § 1983. [R. 11]. Petitioner claims that Respondents,
Officer Fritz and Detective MacGillray, arrested Petitioner in
retaliation for exercising his First Amendment rights. Id.
Additionally, Petitioner claims that Respondent Officer Fritz
caused the harm Petitioner and Tanner Sidd (“Deceased”) suffered,
violating their Fourteenth Amendment due process rights under a
state-created danger theory. Id.
Respondents moved for summary judgment on both claims. Id.
First, Respondents argued that the court should dismiss
Petitioner’s First Amendment retaliatory arrest claim because
Respondents had probable cause to arrest Petitioner. Id. at 12.
Second, Respondents argued that the court should dismiss
Petitioner’s Fourteenth Amendment due process claim because
Petitioner was unable to prove either: (1) Officer Fritz’s
conduct “shocked the conscience,” or (2) Officer Fritz knew his
actions could foreseeably cause Petitioner harm. Id.
The Court of Appeals affirmed the District Court’s grant of
Respondents’ motion for summary judgment and dismissed both
6
claims. Id. With regard to the First Amendment retaliatory arrest
claim, the Court of Appeals held that a plaintiff must establish
a lack of probable cause for their prima facie case and because
Petitioner conceded Respondents had probable cause, Petitioner’s
claim must fail. Id. at 13-20. With regard to the Fourteenth
Amendment due process claim, the Court of Appeals held that a
plaintiff must prove a state official’s conduct either “shocked
the conscience” or created a foreseeable risk of immediate harm
to the plaintiff and because Respondent Officer Fritz’s conduct
failed to do either, Petitioner’s claim must fail. Id. at 20-29.
On January 19, 2016, this Court granted Petitioner’s writ of
certiorari to review all issues raised in the Court of Appeals.
Id. at 30.
7
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. ICongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
U.S. Const. amend. XIV § 1All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
8
STATUTORY PROVISIONS
42 U.S.C. § 1983 (2012). Civil action for deprivation of rights.Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
9
STATEMENT OF THE FACTS
Around 12:30 a.m. on February 9, 2015, bouncer Don Fills
escorted Jay Childress and Jenn Puxatawny out of Leakin Park, a
popular nightclub and known headquarters of the most dangerous
street gang in Homer City. [R. 2]. Working undercover, Respondent
Officer Fritz sat in an unmarked police car and observed the two
high-ranking gang members walk towards their car. Id. at 3.
Respondent then observed a small, clear plastic bag of cocaine
fall from Puxatawny’s handbag after an inebriated Childress
attempted to grab her car keys. Id. At this point, Respondent
exited his car, ordered Puxatawny to place her hands on her car,
and stated she was under arrest. Id.
Puxatawny initially resisted arrest, complaining she needed
to take the inebriated Childress home and that the cocaine was
simply crushed up breath mints. Id. at 3-4. However, Respondent
found another bag of cocaine and a loaded Glock 26 firearm on
Puxatawny’s person after conducting a search incident to a lawful
arrest. Id. at 4. Fearing for his safety and the safety of the
community, Respondent placed Puxatawny in his car and conducted a
pat down of Childress, which resulted in no additional
contraband. Id.
After finding no additional threat, Respondent ordered
Childress to sit on the curb while Respondent secured the crime
scene. Id. Childress complied and Respondent was able to make
10
notes, record witness information, and collect Puxatawny’s
handbag without further incident. Id. at 4-5. After Respondent
completed his investigation, Childress expressed concern about
getting home. Id. at 5. However, Respondent relinquished
Childress and drove back to the station because he had no lawful
reason to take Childress into custody. Id.
Shortly after Respondent left, Childress attempted to drive
Puxatawny’s car home, but drifted across the divided highway and
crashed into Petitioner’s car. Id. Childress was knocked
unconscious, Petitioner received non-life-threatening injuries,
and the Deceased sustained fatal injuries. Id. at 5-6.
Childress was initially charged with driving under the
influence (“DUI”) and vehicular manslaughter, but Respondent
Detective MacGillray dropped the vehicular manslaughter charge
and Childress plead guilty to the DUI. Id. at 6. As a result of
perceived injustice, Petitioner filed a formal complaint against
Respondents Officer Fritz and Detective MacGillray for
discrimination and general incompetence. Id. at 8.
Petitioner then engaged in a month long smear campaign
against Respondents. Id. As part of that campaign, Petitioner
gathered a group of approximately fifty people outside
Respondent’s work on April 27. Id. at 8-9. Using a bullhorn,
Petitioner incited the crowd with chants against perceived
discriminatory police practices. Id. at 9.
11
In the midst of the protest, Respondents arrived for work
and proceeded towards the station’s entrance. Id. Respondent
Officer Fritz identified Petitioner and observed Petitioner raise
his hand, bring it in a forward motion, and throw what appeared
to be a rock. Id. Seconds later, Respondent Detective MacGillray
was struck in the back with a rock. Id. When he looked up and
turned around, Respondent Detective MacGillray observed
Petitioner staring angrily as he lowered his arm. Id.
Respondents then confronted Petitioner because they
objectively believed Petitioner had thrown the rock. Id. at 9-10.
Instead of talking to Respondents, Petitioner continued screaming
into his bullhorn at the crowd. Id. at 10. When asked again about
the rock, Petitioner threw the bullhorn to the ground, shouted in
Respondents’ faces, and shook his fists at Respondents, making
them visibly uneasy. Id. Respondents then placed Petitioner under
arrest for assault and battery on a police officer. Id.
Petitioner was later released because video footage showed
another protester standing directly behind Petitioner throw the
rock. Id. Petitioner then filed the present complaint against
Respondents alleging First and Fourteenth Amendment claims in
violation of 42 U.S.C. § 1983. Id. at 11.
12
SUMMARY OF THE ARGUMENT
This Court should affirm the Court of Appeals’ grant of
Respondents’ motion for summary judgment on Petitioner’s First
Amendment retaliatory arrest claim. The Court of Appeals
correctly found that Hartman v. Moore controls and that probable
cause is an objective standard easily applicable to retaliatory
arrest claims.
First, the Hartman Court’s dual justifications for requiring
a plaintiff to plead and prove a lack of probable cause for
retaliatory prosecution should also extend to retaliatory arrest
claims. In both cases, a plaintiff must prove the protected right
was a but-for cause of the defendant’s conduct. Similarly, a
defendant’s sole rebuttal evidence for causation is probable
cause for the underlying criminal offense.
Second, in similar criminal law contexts, this Court has
consistently chosen to enforce bright-line rules that do not
leave room for case-by-case adjudication of constitutional
issues. These rules address the difficult issue of determining an
official’s subjective state of mind. Probable cause in criminal
retaliation cases provides the Court with an objective standard
that applies pre-existing and highly probative evidence of
causation. Further, requiring probable cause will not add an
additional pleading burden because it will be adjudicated in
almost all criminal retaliation cases.
13
This Court should also affirm the Court of Appeals’ grant of
Respondents’ motion for summary judgment on Petitioner’s
Fourteenth Amendment claim. Assuming the Fourteenth Amendment
protects citizens against state-created dangers, the Court of
Appeals correctly found Respondent Fritz’s conduct failed to
shock the conscience or create a severe risk of immediate and
direct harm to Petitioner.
The Fourteenth Amendment does not create a duty for the
government to protect citizens from all harm. This Court should
not expand Due Process under the Fourteenth Amendment to create
such a duty and thereby displace state tort law. As such,
Respondent have not deprived Petitioner of any Fourteenth
Amendment protected right.
Even if the Fourteenth Amendment conferred such a right to
individuals, Respondent did not violate § 1983. Given the
circumstances, Respondent’s conduct was not so egregious or
arbitrary as to shock the conscience. The deliberate indifference
standard of culpability is inappropriate where no custodial
relationship exists between the government and the individual.
Furthermore, Respondent’s conduct did not create an immediate and
foreseeable risk of harm specific to Petitioner. Imposing “cause-
in-fact” causation onto state officials’ conduct would
impermissibly inject common-law tort principles into the
Fourteenth Amendment.
14
ARGUMENT
I. THE COURT OF APPEALS CORRECTLY AFFIRMED THE DISTRICT COURT’S GRANT OF SUMMARY JUDGMENT BECAUSE HARTMAN EXTENDS TO RETALIATORY ARREST CLAIMS REQUIRING PETITIONER TO PLEAD AND PROVE RESPONDENTS LACKED PROBABLE CAUSE TO ARREST.
The Court of Appeals correctly affirmed Respondents’ motion
for summary judgment because Petitioner’s First Amendment
retaliatory arrest claim failed to plead and prove Respondents
lacked probable cause for the underlying criminal offense, and
the undisputed facts demonstrate there was probable cause for the
arrest as a matter of law. The constitutionality of Petitioner’s
arrest is a question of law this Court reviews de novo. Cooper
Indus. v. Leatherman Tool Grp., 532 U.S. 424, 431 (2001). This
Court must affirm Respondents’ motion for summary judgment if
there is no genuine dispute to any material fact and Respondents
are entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a).
The First Amendment’s protection of an individual’s right to
free speech is not absolute. See, e.g., Int’l Soc’y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)
(highlighting well-settled law that government can ban speech on
government-owned land). The government may arrest and prosecute
individuals who are exercising their free speech rights if there
is probable cause for the underlying criminal offense. Hartman v.
Moore, 547 U.S. 250, 265-66 (2006) (holding pleading probable
15
cause is essential to a retaliatory prosecution claim); see also
Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (“This Court has
never recognized a First Amendment right to be free from a
retaliatory arrest that is supported by probable cause.”). In
adjudicating those arrests, this Court has turned to probable
cause as an objective standard that employs highly probative and
pre-existing evidence. Hartman, 547 U.S. at 258, 261.
Respondents’ arrest of Petitioner did not violate the First
Amendment and did not constitute a criminal retaliatory arrest
because Respondents had probable cause for the underlying
criminal offense, assault and battery on a police officer. [R.
10, 14, 20]. Petitioner concedes that Respondents objectively
believed Petitioner threw the rock that hit Respondent Detective
MacGillray. Id. at 10, 12. Therefore, for the same reasons set
forth in Hartman , Petitioner’s exercise of free speech could not
have been a “but-for” cause of Respondents conduct because
probable case existed to arrest Petitioner for throwing the rock
and shaking his fists at Respondents. Id. at 9-10.
A. This Court should extend Hartman to criminal retaliatory arrest claims because probable cause is the only evidence available to defeat Petitioner’s allegation of causation.
This Court should extend Hartman’s requirement of pleading
an absence of probable cause to retaliatory arrest claims because
the underlying rationale for requiring probable cause in criminal
retaliatory prosecution claims is equivalent to criminal
16
retaliatory arrest claims. At the outset, it is important to
clearly frame the contours of the constitutional right in
question and acknowledge that this Court has never recognized
this right.1 Reichle, 132 S. Ct. at 2093. That right “is not the
general right to be free from retaliation for one’s speech, but
the more specific right to be free from a retaliatory arrest that
is otherwise supported by probable cause.” Id. at 2094. Keeping
this context in mind, it is important to distinguish causation in
civil retaliation cases from causation in criminal retaliation
cases.
In a civil case for wrongful termination, the Mt. Healthy
Court held that a plaintiff must prove, inter alia,2 that the
plaintiff’s protected speech was a “substantial” or “motivating”
factor in the defendant’s alleged civil retaliation. Mt. Healthy
City Bd. of Educ. v. Doyle, 429 U.S. 274, 285-87 (1977). A
defendant can rebut that allegation of causation through evidence
proving the plaintiff’s protected speech was not a but-for cause
of the defendant’s conduct. Id. at 287 (finding defendant must
show “by a preponderance of the evidence that it would have
reached the same decision . . . even in the absence of the
protected conduct.”).
1 Respondents waived their qualified immunity defense because it was not raised in the lower courts. [R. 11-12]2 Both parties agree that Mt. Healthy’s first two prongs are satisfied; therefore, the only issue in this case is whether Petitioner can satisfy Mt. Healthy’s third prong dispute the fact Petitioner concedes Respondents had probable cause to arrest him. Id. at 14.
17
In a criminal case for retaliatory prosecution, the Hartman
Court held that a plaintiff must plead and prove the defendant
lacked probable cause for the underlying criminal offense. 547
U.S. at 265-66. The Court found that probable cause was highly
probative of causation and its absence coupled with a retaliatory
motive would provide sufficient evidence to infer a genuine
dispute as to a material fact. Id. The Court’s two underlying
rationales for distinguishing criminal retaliation claims from
civil retaliation claims suggests the use of probable cause to
rebut causation should also extend to retaliatory arrest claims.
Reichle, 132 S. Ct. at 2095-96.
1. Hartman’s first rationale that a plaintiff must prove a complex chain of causation is applicable to criminal retaliatory arrest claims.
The plaintiff in a criminal retaliatory prosecution case
must usually prove a complex chain of causation from the
plaintiff’s injury to the prosecutor’s indictment. Hartman, 547
U.S. at 261 (“[R]equisite causation between the defendant's
retaliatory animus and the plaintiff's injury is usually more
complex than it is in other retaliation cases.”). Unlike a civil
case where the individual committing the alleged retaliation is
the defendant, a retaliatory prosecution case involves proving
the non-prosecuting official acted in retaliation and induced a
prosecutor with absolute immunity to bring charges. Id. at 261-
62. In these cases, the presence of probable cause for the
18
underlying criminal offense will remove any doubt that the non-
prosecuting official successfully induced the prosecutor to act
unlawfully. Id. at 261 (“[E]stablishing the existence of probable
cause will suggest that prosecution would have occurred even
without a retaliatory motive.”).
This rationale for requiring a plaintiff to plead and prove
an absence of probable cause is not exclusive to causation in
retaliatory prosecution claims. A defendant in either case will
still rely exclusively on probable cause to rebut the plaintiff’s
allegation of causation. Riechle, 132 S. Ct. at 2095 (“Like
retaliatory prosecution cases, evidence of . . . probable cause .
. . will be available in virtually every retaliatory arrest
case.”). For instance, if a plaintiff alleged retaliatory
prosecution resulting from a federal indictment, the non-
prosecuting defendant would rebut that showing of causation
solely through evidence of probable cause for the underlying
offense. See generally Hartman, 547 U.S. 250. Similarly,
Respondents in the present case can only rebut Petitioner’s
allegation of retaliation through evidence of probable cause for
assault and battery on an officer. Hartman, 547 U.S. at 260
(finding no but-for causation, “claim fails for lack of causal
connection between unconstitutional motive and resulting harm,
despite proof of some retaliatory animus in the official's
mind”).
19
Furthermore, this complex chain of causation is not always
necessary in retaliatory prosecution cases. The Hartman Court
conceded that a plaintiff could sue a prosecutor for retaliatory
conduct taken in an investigatory role. Id. at 262 n.8. In these
cases, the defendant would be the same individual who committed
the alleged injury. Id. at 259. Therefore, this Court cannot rely
simply on one individual’s specific role, but rather must rely on
the only evidence available to rebut an allegation of causation
in all criminal retaliation case – probable cause.
2. Hartman’s second rationale that probable cause will always be proved at trial is applicable to criminal retaliatory arrest claims.
The defendant in a criminal retaliatory prosecution case can
only rebut a plaintiff’s allegation of causation through evidence
of probable cause. Id. at 260-61 (finding probable cause
necessary to show defendant would have made arrest absent
retaliatory animus). Unlike a civil case where the defendant can
rely on numerous factors depending on the specific circumstance,
a retaliatory prosecution case hinges on whether or not the
criminal charge was based on probable cause. Compare Pickering v.
Bd. of Educ., 391 U.S. 563, 574-75 (1968) (finding public school
officials could not dismiss teacher for teacher’s critical letter
to local newspaper), and Mt. Healthy, 429 U.S. at 283-84 (finding
school board could constitutionally dismiss teacher for no reason
whatsoever, but could not dismiss teacher based on critical
20
statements to radio station), with Atwater v. City of Lago Vista,
532 U.S. 318, 354 (2001) (finding probable cause standard applies
to all arrests).
This rationale supporting the requirement for pleading an
absence of probable cause is not exclusive to causation in
retaliatory prosecution claims. Regardless of whether the
plaintiff sues the non-prosecuting official or the officer, the
defendant in either case will have a “distinct body of highly
valuable circumstantial evidence” in the form of probable cause
to disprove causation. Hartman, 547 U.S. at 261. If Respondents
in this case could not prove they had probable cause to arrest
Petitioner, then they would have violated Petitioner’s First and
Fourth Amendment rights. See Atwater, 532 U.S. at 354 (finding
Fourth Amendment not violated where officer has probable cause to
arrest). Therefore, there is no alternative to probable cause and
the presence or absence of probable cause will be proved in every
criminal retaliatory arrest case.
B. This Court should extend Hartman to criminal retaliatory arrest claims because probable cause is an objective standard that applies highly probative evidence of causation essential to the underlying criminal offense.
This Court should extend Hartman’s bright-line requirement
of pleading an absence of probable cause to retaliatory arrest
claims because it is an objective standard lower courts can
easily apply. 547 U.S. at 257-58. In other criminal law cases,
21
this Court has repeatedly chosen bright-line rules that leave no
room for case-by-case adjudication of constitutional issues. See,
e.g., Atwater, 532 U.S. at 347 (acknowledging bright-line rule
because case-by-case analysis would convert every in-the-field
discretionary seizure into a constitutional case). The
justifications for choosing objective standards in those contexts
are equally applicable to criminal retaliation claims.
In the Fourth Amendment context, bright-line rules have
addressed an issue present in both claims: the difficulty in
adjudicating constitutional issues involving discretionary and
subjective decision-making. Id. Whether a plaintiff alleges an
officer unlawfully seized them because the officer could not make
a warrantless arrest or because the officer was acting in
retaliation, the issue the Court faces is still the same: is
there evidence of a constitutional violation. See Crawford-El v.
Britton, 523 U.S. 574, 584-85 (1998) (“[O]fficial’s state of mind
is ‘easy to allege and hard to disprove.’”).
This inherently difficult inquiry is why this Court has
relied on probable cause as an objective standard. Devenpeck v.
Alford, 543 U.S. 146, 153-54 (2004). In determining probable
cause, the Court does not need to inquire into whether a specific
individual’s subjective intentions violated a plaintiff’s
constitutional rights. Id. at 154 (suggesting subjective standard
would mean officer’s arrest would hinge on whether he could
22
articulate his intentions correctly). Instead, probable cause
allows the Court to look at objective facts and circumstantial
evidence that would lead a prudent person to believe or not
believe an individual committed a crime. Hunter v. Bryant, 502
U.S. 224, 228 (1991).
Respondents in this case knew Petitioner filed formal
complaints against them. [R. 9]. However, there is no evidence
Respondents arrested Petitioner based on that knowledge because
there rarely is clear evidence of subjective intentions, absent
an admission of guilt. See Hartman, 547 U.S. at 264 (finding
prosecutor’s admission of retaliatory animus “rare and
consequently poor guides in structuring a cause of action”). In
contrast, all parties agree Respondents objectively believed
Petitioner threw the rock that hit Respondent MacGillray. [R.
10]. This showing of probable cause is not only highly probative
but is also definitive evidence Respondents acted independently
of any speculated and subjective retaliatory animus. See Hartman,
547 U.S. at 260-61 (considering evidence of probable cause “a
distinct body of highly valuable circumstantial evidence
available . . . to prove or disprove retaliatory causation”).
Furthermore, this Court has consistently found that
hindsight should not blind courts to the split-second judgments
an officer must make in the field. See Kentucky v. King, 131 S.
Ct. 1849, 1860 (2011) (quoting Graham v. Connor, 490 U.S. 386,
23
396-97 (1989)) (“[O]fficers are often forced to make split-second
judgments in circumstances that are tense, uncertain, and rapidly
evolving.”). Lawful and constitutionally protected conduct can
combine to paint an alarming picture of imminent violence. Ryburn
v. Huff, 132 S. Ct. 987, 991-92 (2012) (“[C]ommon sense that a
combination of events each of which is mundane when viewed in
isolation may paint an alarming picture.”). Respondents faced a
crowd of protestors chanting and yelling at them; Respondents
believed the leader of the protest, Petitioner, had thrown the
rock that hit Respondent Detective MacGillray; and Petitioner
threatened Respondents with his fists when confronted about the
rock. [R. 8-10]. These combined events would reasonably lead a
prudent person to believe Petitioner had committed a crime and
represented a threat to Respondents.
Finally, requiring Petitioner to plead an absence of
probable cause will not result in a substantial shift in judicial
authority because Respondents must prove probable cause at trial
to rebut Petitioner’s prima facie case. See Crawford-El, 523 U.S.
at 594 (berating lower court for straying from traditional
judicial authority and changing “burden of proof for an entire
category of claims”). Nor will such a requirement either alter
the cause of action in any significant way or add a significant
burden for a criminal retaliatory arrest claim. Id. at 594-95;
see Hartman, 547 U.S. at 265. Therefore, an objective standard
24
based on probable cause would apply pre-existing and highly
probative evidence Respondents must already use to rebut
Petitioner’s prima facie case.
Accordingly, this Court should uphold the Court of Appeals’
affirmation of the District Court’s grant of Respondents’ motion
for summary judgment because Petitioner failed to plead and prove
Respondents lacked probable cause to arrest.
II. THE COURT OF APPEALS CORRECTLY AFFIRMED THE DISTRICT COURT’S GRANT OF SUMMARY JUDGMENT BECAUSE EVEN THOUGH THERE IS NO FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE PROTECTED AGAINST PRIVATELY INFLICTED HARM, RESPONDENT FRITZ DID NOT DEPRIVE PETITIONER OF A CONSTITUTIONAL RIGHT BECAUSE HIS CONDUCT DID NOT SHOCK THE CONSCIENCE OR CREATE A SEVERE RISK OF IMMEDIATE AND DIRECT HARM TO PETITIONER.
The Court of Appeals correctly affirmed Respondent’s motion
for summary judgment because Petitioner has suffered no
deprivation of Fourteenth Amendment due process rights. The due
process clause of the Fourteenth Amendment does not impose a duty
on the government to protect individuals from all harms, even
where the government has acted to potentially increase the risk
of harm to individuals. DeShaney v. Winnebago Cty. Dep't of Soc.
Servs., 489 U.S. 189, 195 (1989). Additionally, substantive due
process does not remedy common-law torts and this Court has
previously rejected expanding due process to do so. Collins v.
City of Harker Heights, Tex., 503 U.S. 115, 125 (1992).
Even if due process protects individuals from state-created
dangers, Petitioner cannot show Respondent Fritz’s conduct met
25
the requirements for culpability and causation and has failed to
state a claim under § 1983. A claim of government conduct
depriving an individual of constitutionally protected rights
requires a showing that the conduct “shocks the conscience”.
Rochin v. California, 342 U.S. 165, 172 (1952). Additionally, to
be actionable, these claims require a showing that the conduct
immediately and severely harmed a discrete group of individuals
Martinez v. California, 444 U.S. 277, 281-82 (1980). As
Petitioner concedes that he cannot meet either of these
requirements, his claims must fail.
The constitutionality of Respondent’s conduct is a question
of law this Court reviews de novo. Cooper, 532 U.S. at 431. This
Court must affirm Respondents’ motion for summary judgment if
there is no genuine dispute to any material fact and Respondents
are entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a).
A. Respondent has not deprived Petitioner of a Fourteenth Amendment Due Process Right.
1. The Fourteenth Amendment Due Process Clause does not impose an affirmative duty on the government to protect individuals from every conceivable harm.
The Fourteenth Amendment Due Process Clause does not require
the government to safeguard its citizens from all harm. DeShaney,
26
489 U.S. at 197. The Due Process Clause forbids the government
from depriving “any person of life, liberty, or property without
due process of law.” U.S. Const. amend. XIV § 1. Though this
Court has recognized a substantive due process right, that right
is not precisely outlined. See Griswold v. Connecticut, 381 U.S.
479, 500 (1965) (Harlan, J., concurring) (recognizing “due
process” is an amorphous theory subject to judicial
interpretation). However, this Court has clearly stated the Due
Process Clause does not require the government to safeguard its
citizens from all privately inflicted harms. DeShaney, 489 U.S.
189, 195 (1989) (refusing to impose liability on Department of
Social Services for injuries abusive parent caused child after
Department released child into his custody); see also Town of
Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 768 (2005) (“[T]he
benefit a third party may receive from having someone else
[detained] . . . does not trigger protections under the Due
Process Clause, neither in its procedural nor its ‘substantive’
manifestations”). Therefore, due process does not require the
government to provide its citizens protection from privately
inflicted harm.
2. Expanding substantive due process impermissibly supplants state tort law.
Due process is not designed to protect against common-law
torts, even where government actors may have increased the risk
27
of harm to private citizens. Collins, 503 U.S. at 125. This Court
has hinted that liability may exist for harm where: (1) the
government takes the individual into custody and holds him
against his will, creating a "special relationship,” and (2) the
government itself has created or increased the individual’s risk
of harm.3 DeShaney, 489 U.S. at 200-02. However, when considering
the state-created danger doctrine, this Court should exercise
restraint and be hesitant to expand due process to encompass
harms traditionally remedied through state tort law. Collins, 503
U.S. at 125 (expressing concern for substantive due process
expansion where “guideposts for responsible decision-making . . .
are scarce and open-ended”). This Court has previously declined
to impose substantive due process liability where doing so would
displace state tort law. Id. at 128 (refusing to impose liability
where city officials caused injuries when it failed to provide a
safe work environment for employees); Paul v. Davis, 424 U.S.
693, 701 (1976)(refusing to impose liability on city officials
who had allegedly defamed a convicted shoplifter); see Daniels v.
Williams, 474 U.S. 327, 332 (1986)(refusing to find liability
where a state official’s negligent conduct caused a prisoner’s
injuries). Extending due process to remedy Petitioner’s injuries
3 Courts generally refer to government conduct that creates a risk of harm from third parties as the “state-created danger doctrine.” See generally Erwin Chemerinsky, The State-Created Danger Doctrine, 23 TOURO L. REV. 1 (2007); See Butera v. D.C., 235 F.3d 637, 648-49 n.10 (D.C. Cir. 2001) (noting cases that have discussed the state-created danger doctrine).
28
would reposition due process as “a font of tort law.” Paul, 424
U.S. at 701. Therefore, tort claims stemming from government
conduct should not implicate due process, even where the
government has acted to potentially increase the risk of harm to
individuals.
B. Respondent Fritz did not deprive Petitioner of a constitutional right because Respondent’s conduct did not “shock the conscience” or create a severe risk of direct and immediate harm to Petitioner.
Even if the Fourteenth Amendment imposes a duty on the
government to protect individuals from government-created harm,
Petitioner has failed to prove Respondent deprived him of a
constitutional right and therefore fails to state a claim under §
1983. The language of § 1983 imposes liability when government
conduct “subjects, or causes to be subjected,” an individual to
the deprivation of constitutional rights. 42 U.S.C. § 1983;
Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658, 690
(1978). Merely proving a breach of traditional tort duties is not
sufficient to state a § 1983 claim because the statute protects
fundamental constitutional rights. See Daniels, 474 U.S. at 332
(emphasizing that violations of constitutionally protected rights
inherently require high burdens of proof and causation because
the Constitution focuses on “the large concerns of governors and
the governed”). This Court has clearly required that conduct
depriving an individual of a constitutional right must “shock the
29
conscience”. Rochin, 342 U.S. at 172 (holding use of evidence
obtained when police officer pumped individual’s stomach “shocked
the conscience” and violated due process right). Further, this
Court has clearly required conduct cause an immediate and severe
harm for conduct to deprive individual of a right. Martinez, 444
U.S. at 285 (requiring more than proof of “but-for” causation to
satisfy causation standard under § 1983 for deprivation of
constitutional rights). Therefore, because Petitioner failed to
demonstrate Respondent’s conduct shocks the conscience or created
a risk of immediate and severe harm to Petitioner, Petitioner
cannot state a claim under § 1983.
When courts consider whether the government has created or
increased the risk of harm to an individual and deprived them of
a constitutional right, the tests require: (1) an affirmative
government act (2) that foreseeably causes harm (3) with a
culpable state of mind. [R.22-23]; See generally Gray v. Univ. of
Colo. Hosp. Auth., 672 F.3d 909, 922 (10th Cir. 2012) (outlining
state-created danger claim). Courts additionally ask whether a
reasonable officer would recognize that his or her conduct
violates a constitutional right, considering the circumstances
and the law as it exists at that time. Saucier v. Katz, 533 U.S.
194, 202 (2001). However, Respondent declined to raise the
defense of qualified immunity and therefore it is not at issue in
this case. [R. 11-12].Respondent Fritz conceded he engaged in an
30
affirmative act, so this Court must determine whether Respondent
Fritz’s conduct meets the culpability and causation requirements.
Id. at 5-6.
1. Petitioner did not suffer a deprivation of constitutional rights because Respondent’s conduct did not shock the conscience.
The Court of Appeals correctly determined that § 1983
culpability requires Respondent’s conduct shocked the conscience.
Substantive due process guarantees protection against arbitrary
and oppressive governmental actions. Daniels, 474 U.S. at 331.
Substantive due process violations only occur when the action
“can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense.” Collins, 503 U.S. at 129;
County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998)
(recognizing that “only the most egregious executive actions” are
arbitrary in the constitutional sense). While this Court has not
established an explicit standard for conduct that shocks the
conscience, this Court has previously found conscience-shocking
behavior to require a high standard of culpability. Lewis, 523
U.S. at 847-48 (recognizing conscience shocking behavior falls
towards extreme ends of tort liability). Therefore, this Court
must find Respondent’s conduct shocks the conscience to find
Respondent culpable for violation of constitutional rights.
Respondent’s failure to prevent Childress from operating a
vehicle does not shock the conscience. This Court recognizes
31
governmental conduct rises to a conscience-shocking level when
the conduct is deliberately intended to injure without any
relation to justifiable governmental interests. Id. at 834.
Satisfying this standard requires more than allowing unreasonable
risks to persist and instead requires a showing of a deliberate,
intentional action designed to injure. Collins, 503 U.S. at 128;
see, e.g., Ulrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995)
(“[P]laintiff must demonstrate a degree of outrageousness and a
magnitude of potential or actual harm that is truly conscience
shocking”). Petitioner concedes Respondent did not act with
intent to harm. [R. 22] Operating alone in a dangerous
neighborhood, Respondent merely declined to prevent Childress
from driving after arresting a gang member in possession of a
firearm and narcotics. Id. 3-4. During the arrest, Respondent had
no reason to detain Childress because Childress calmly complied
with Respondent’s commands. Id. at 5. Though Respondent knew
Childress had the keys to the car and had expressed interest in
returning home, Respondent had no reason to suspect Childress
would operate the vehicle because Childress had not expressed an
intent to drive and had not attempted to enter or drive the car
in Respondent’s presence. Id. at 5-6. Considering Respondent had
recently arrested a high-ranking gang member outside of the
gang’s headquarters, combined with Childress’ calm demeanor
during the gang member’s arrest and Childress’ lack of expressed
32
intent to drive home, Respondent’s decision to leave Childress in
the parking lot is far from “arbitrary, or conscience shocking,
in the constitutional sense.” Collins, 503 U.S. at 129; [R. 2, 4-
5]. Therefore, Respondent’s actions were not so egregious or
arbitrary as to shock the conscience.
Given the circumstances, Petitioner’s assertion that
Respondent’s conduct was so deliberately indifferent so as to
shock the conscience is meritless. Conduct characterized as
deliberately indifference may culpably shock the conscience given
the correct circumstances. Lewis, 523 U.S. at 850 (“Deliberate
indifference that shocks the conscience in one environment may
not be so patently egregious in another”). This court has found
the appropriate test for deliberate indifference is subjective
recklessness where a person has disregarded a familiar risk.
Farmer v. Brennan, 511 U.S. 825, 826 (1994). Even if Respondent
acted with deliberate indifference, given the circumstance, his
conduct cannot be said to have risen to shock the conscience.
Though Respondent was aware of Childress’ desire to go home,
Childress did not make clear he intended to drive home. [R. 5].
Respondent’s affirmative act did not compel Childress to drive
home; Childress could have called a taxi, gone back into the
nightclub, or asked the bouncer for a ride. Id. at 5-6. Even if
Respondent’s conduct is deliberately indifferent, this conduct is
not “so patently egregious” so as to shock the conscience in
33
these circumstances. Lewis, 523 U.S. at 850. Therefore,
Respondent’s deliberate indifference does not shock the
conscience.
2. The deliberate indifference standard is inappropriate without a custodial relationship.
Given the circumstances, the deliberate indifference
standard is inappropriate to apply because a custodial
relationship is nonexistent between the government and
Petitioner. [R. 21]. In Estelle v. Gamble, this Court contended
that deliberate indifference is justified when the government has
denied an individual the opportunity to care for himself. 429
U.S. 97, 106 (1976) (finding deliberate indifference to
prisoner’s serious illness “repugnant to the conscience of
mankind”). The lower standard of culpability is justified because
the government has restrained an individual’s ability to act on
his own behalf. Deshaney, 489 U.S. at 200; see generally D.R. by
L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364,
1370 (3d Cir. 1992) (declining to find defendants had restricted
individual student’s freedom “to the extent that she was
prevented from meeting her basic needs”). Neither the government
nor Respondent Fritz curtailed Petitioner’s liberty that would
otherwise justify a relaxed culpability standard. [R. 3-5]
Therefore, it is inappropriate to apply the deliberate
indifference culpability standard.
34
3. Petitioner has failed to demonstrate Respondent’s conduct created an immediate and foreseeable risk of harm specific to Petitioner.
Respondent’s failure to prevent Childress from operating a
vehicle did not create or increase immediate and specific risk to
an identifiable group of plaintiffs. Traditional but-for
causation is insufficient to establish a § 1983 claim. See
Martinez, 444 U.S. at 285 (“[N]ot every injury in which a state
official has played some part is actionable under [§ 1983]”).
This Court has plainly stated that the government’s failure to
prevent a party from acting does not fulfill the § 1983 causation
requirement because Congress did not intend to apply broad
liability for government actions failing to prevent harm. Monell,
436 U.S. at 694 (“Congress did specifically provide that A’s tort
becomes B’s liability if B ‘caused’ A to subject another to a
tort.”).
Thus, the ultimate harm must be immediate and direct because
liability under § 1983 focuses on the relationship between the
government and the individual plaintiff. Martinez, 444 U.S. at
281-282 (observing “knowledge of immediate harm distinguishes
constitutional claims from regular tort claims”); See Saenz v.
Heldenfels Bros., 183 F.3d 389, 392 (5th Cir. 1999) (finding due
process is not offend when intoxicated driver remained on highway
“increase[ing] the risk of harm to unidentified and
unidentifiable members of the public”). The focus on the
35
relationship between the government and an individual requires
the risk to be distinct from what the general public otherwise
faces. Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th
Cir. 1998) (requiring plaintiffs show city created a “special
danger” distinct from the general public to state an actionable
constitutional violation claim). Even if government conduct
generally increases the risk of the threat, the conduct must
directly increase the risk of danger to the individual victim.
See, e.g., Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982)
(finding government did not put victim in a “snakepit” but simply
“failed adequately to protect her as a member of the public”).
Section 1983 must have a rigorous causation standard because if
the danger underlying the deprivation existed in the public
before the state took action, the state did not affirmatively
create the danger. Armijo v. Wagon Mound Pub. Sch., 159 F.3d
1253, 1263 (10th Cir. 1998); See Martinez, 444 U.S. at 284-285.
Therefore, § 1983 liability must be based on an immediate and
foreseeable risk of harm to a specific and identifiable group of
individuals.
Respondent’s conduct has not created an immediate and
foreseeable risk of harm specific to Petitioner. To be liable
under § 1983, government conduct must create or increase the
immediate and foreseeable risk of harm to a limited and
specifically definable group. Saenz, 183 F.3d at 392 (holding
36
liability under “state-created danger theory” requires the
existence of a known victim); DeShaney, 489 U.S. at 203. After
Respondent arrested a prominent gang member, Childress waited to
drive until after Respondent left the scene and did not cause the
accident for another twenty minutes. [R. 5] Respondent declined
to ensure Childress drove safely, but this action did not
immediately cause a drunk driver to operate a vehicle and harm a
private individual. Id. Additionally, Respondent’s acts did not
increase the risk of danger to Petitioner individually as
Respondent was unaware Petitioner was operating a car that night.
Id. at 3-5. Even characterizing the group as those drivers out on
the road at the time of the accident is insufficient because the
risk that any driver will cause a fatal accident always exists.
Therefore, Respondent did not increase the risk of harm to a
narrow and definable group of individuals.
Plaintiff’s assertion that “but-for” causation meets the
causation requirement is meritless because “but-for” causation
improperly inserts standard tort causation into due process. To
be liable for a constitutional violation under Petitioner’s
proffered standard, conduct must be the cause-in-fact of
plaintiff’s injuries and expose the individual to a danger he or
she would not have otherwise faced. Johnson v. City of Seattle,
474 F.3d 634, 641 (9th Cir. 2007) (finding police action did not
put plaintiffs in a worse position). Childress, not Respondent,
37
drunkenly operated the car and caused the fatal accident. [R. 5]
Second, Petitioner would have encountered negligent and
intoxicated drivers on the road on any Saturday night, regardless
of Respondent’s actions. Characterizing Respondent’s conduct as
the cause-in-fact of plaintiff’s injuries impermissibly imposes
the type of broad common-law tort causation this Court has
repeatedly found does not exist within the Due Process Clause.
Daniels, 474 U.S. at 327; DeShaney, 489 U.S. at 202.
Additionally, Respondent Fritz did nothing to increase persistent
risks already associated with driving and put Petitioner in “no
worse position than that in which he would have been had
[Respondent] not acted at all.” DeShaney, 489 U.S. at 201-02.
Therefore, Respondent’s conduct cannot be characterized as the
cause-in-fact of Petitioner’s injuries.
Accordingly, this Court should uphold the Court of Appeals’
affirmation of the District Court’s grant of Respondent’s motion
for summary judgment because Petitioner has failed to demonstrate
Respondent’s conduct shocked the conscience or created a risk of
immediate and direct harm to Petitioner.
38
CONCLUSION
For the foregoing reasons, this Court should AFFIRM the judgment of the Court of Appeals.
Respectfully Submitted,
Will Fritz, Gregory MacGillray,
Samuel Badcook, City of Homer,
and Home City Police Department
By its attorneys
39
