*1 сondition, but decided medical of Owusu’s was not condition that the
in its discretion downward to warrant a
sufficiently severe extraordinary physical
departure for Therefore, district
impairment. not reviewable. determination
court’s Coleman, F.3d States United
See banc). Cir.1999) (en
354, 357
III. CONCLUSION above, AF- we stated the reasons
For court’s decisions the district
FIRM RE- We Anthony Latham.
respect Larry court’s denial the district
VERSE acquittal judgment of motion for
Latham’s to the district 2 and REMAND
of Count of correction purpose solely for the
court eliminate conviction judgment the rest of 2. AFFIRM We
Count respect decisions with court’s
district Finally, we DISMISS
Larry Latham. re- the district court’s appeal of
Owusu’s departure grant a
fusal to downward his
calculating sentence. Jr., CLAYBROOK,
Royal Gwannette E. Claybrook,
Claybrook, Co-Ad Petrece the Estate of
ministrators Clay Sr., Plaintiffs-Appellants,
brook, BIRCHWELL, Ken Steve
Jesse Kirchner, Metro
Spencer, Robert &
politan of Nashville Government Defendants-Appel County,
Davidson
lees.
No. 98-6029. Appeals, Court of States
United Circuit.
Sixth Aug.
Argued: 11, 2000 Jan. and Filed:
Decided *3 briefed),
E.E.Edwards, (argued and III (briefed), Edwards, Sim- M. Wesley Oliver TN, Oliver, Nashville, Appel- mons & lants. briefed), Sawyers (argued and
Kennetha & of Nashville Metropolitan Government Law, Nashville, County Dept, of Davidson TN, Appellees. KRUPANSKY, BOGGS, politan
Before: Government Nashville and (“Nashville”). CLAY, County, Davidson Tennessee Judges. Circuit alleged peace offi- KRUPANSKY, J., opinion delivered Birchwell, Lewis, Spencer cers used court, BOGGS, J., joined. force, excessive in violation of 42 U.S.C. CLAY, 361-63), (pp. 1983,2 J. delivered a § which resulted in the death of part separate opinion concurring Royal Claybrook (“Claybrook”) Sr. and the dissenting part. bodily injury serious Clay- They
brook. further contended Kir- chner, Chief Executive Officer of OPINION County Metropoli- Nashville-Davidson KRUPANSKY, Judge. Circuit Department, tan Police properly failed to *4 plaintiffs-appellants Royal The E. supervise train the three faulted and/or Jr.”), Claybrook (“Royal Jr. Gwannette officers, neglected field and to develop ap- (“Gwannette”), Claybrook Clay- Petrece propriate departmental official guidelines (“Petrece”), Quintana Claybrook brook and restraining unjustifiable the utilization of (“Quintana”) disputed the district lethal force. The trial court concluded complaint fail court’s dismissal of their (1) Jr., Gwannette, and Petrece claim, a ure to state its award of (the Sr.) and/or Claybrook children of Royal defendants,1 summary judgment to the standing lacked alleged per- recover for against defendants-appellees the Jesse sonal derivatively generated by losses (“Birchwell”), Birchwell Steve Lewis demise, their father’s violent and had (“Lewis”), Spencer (“Spencer”), Ken recovery Rob failed to seek al- (“Kirchner”), leged injuries representa- ert Kirchner and the Metro- constitutional as Catrett, 317, 322-23, ruling Corp. 1. The district court cast its as an alter- tex 106 2548, complaint (1986). nate dismissal of the for failure to S.Ct. Because summary judgment a state claim ad- sufficiency law, question and/or of the evidence is a of plaintiffs. verse to the grant summary judg a trial court’s of ment, a like dismissal under Fed.R.Civ.P. correctly "Whether a district court has dis 12(b)(6), subject plenary scrutiny. is P aint pursuant missed a suit to Fed.R.Civ.P. Robertson, 557, (6th 12(b)(6) er v. 185 F.3d 566 Cir. question [failure claim] to state a is a Abramson, law, 1999); 739, Grider v. 756 subject of and therefore to de re F.3d novo denied,-U.S.-, (6th Cir.), view. The district court must construe the n. cert. 528,-L.Ed.2d-(1999). complaint light in a the mоst favorable to plaintiff, accept allegations all of the factual true, plaintiff as and determine whether the provides, pertinent seg- 2. Section 1983 undoubtedly prove sup can no set of facts in ment: port that would of his claims entitle him to who, Every person any under color of stat- allegation capable relief. When an more of custom, ute, ordinance, usage, regulation, or inference, than one it must construed in be any subjects, of State ... or causes to be plaintiff's the favor." Natural Re Columbia subjected, any citizen of the United States or Tatum, sources, Inc. v. 58 F.3d person jurisdiction other within the thereof to (6th 1995) (citations omitted). Although Cir. deprivation rights, privileges, any the complaint's allegations are construed lib by immunities laws, and secured Constitution plaintiff, complaint erally for the a party injured shall be liable to the in an allegations sup does not contain sufficient to law, equity, proper action at suit in or other port any legal theory a claim under must be proceeding for redress[.] accept dismissed. Id. A court is not bound to any In action under section alleged legal or unwarranted fac conclusions (1) plaintiff prove de must he has been Morgan tual inferences. v. Church's Fried Chicken, Cir.1987). prived right a States (6th secured United 829 F.2d laws, (2) constitution or the defendants who Following adequate opportunities for dis- motion, allegedly deprivation covery upon caused that acted under and adversarial sum- law, (3) deprivation mary judgment color of state oc under 56 must Fed.R.Civ.P. against plaintiff curred be entered who has failed to without due of law. O’Brien City producе support Rapids, evidence sufficient to each Grand 1994). prima element of his or her case. Celo- Cir. facie as a (2) served cause that establishment estate; Quintana had his tives oft gam- tort. “numbers” “front” for an unlawful cognizable suffered occasionally tar- operation, thieves bling February evening On responsible for was geted it. undercover Caucasian plainclothes betting proceeds. depositing illegal Birchwell, Spencer of officers Clay- prompted physical danger Suppression associated Unit the Nashville Crime surveillance, Quintana, while engaged habitually anti-crime to escort brook vehicle, squad unmarked armed, from an to her automobile. from store At neighborhood. Nashville high-crime parking in the customarily He remained they observed p.m., 9:11 approximately view, until lot, plain holding his shotgun (later as identified male African-American the area. Quintana had exited Sr.) near the standing Royal Claybrook for his security guard acting was a. parking lot of dimly-lit in the street curb Febru- evening on daughter-in-law (“the market”) while Market the F & J unmarked 1995. When the ary port-arms. A long at displaying gun scene, Quintana vehicle arrived blocked the busi- gray Maxima automobile Maxima, behind already inside the seated knew that patrolmen ness’ entrance. The her back towards steering wheel with of recent target market had been the constables, peace al- the three defendant *5 robbery a was in Suspecting that crimes. testified that he did though each of them incognito patrol the progress, the driver of anyone occupied then that not know that Birchwell, car, confоrmity in Officer automobile. operating pro- department’s standard his cedures, headquar- force police radioed the passenger that a with- testified and to report gunman’s the location ters to (the po- strange in the unmarked vehicle dispatch of a the immediate request car) drop his Claybrook ordered lice uni- police containing marked cruiser “no, you responded, which he weapon, to formed law enforcers. further attested: drop your gun.” She then the undercover ve- Birchwell drove know, thing I I And then the next parking lot. He hicle into the market’s sound, a firecracker and then heard like ap- stop intended to vehicle on what his back, and I kind something my I felt peared driveway alleyway to be a or like, really jumped, you know. And I side, building’s to en- abutted the western happened, know what had be- didn’t surreptitiously officers to observe able the cause, know, gun I hadn’t heard a you suspi- firearm-toting suspect and the shot, know, you before. automobile, arrival of gray pending cious car. Howev- squad the summoned marked wet, I of felt like I was And then kind er, discovered that subsequently Birchwell like, felt, you I and so I kind of and was roadway paralleled the contiguous know, then I realized that I had —and Consequently, while structure’s west end. And I kind of leaned over been shot. prevent repositioning his vehicle seat, up my and I at father- looked facing the officers’ suspect armed from in-law, he at me. He was looked backs, the unidenti- Birchwell maneuvered my car. standing still front stationary gray patrol fied car towards know, I just you automobile. I saw And then — a of fire or guess like—I it burst was prompted wаry gun- That movement I know what it was. something. don’t menacingly man to advance behind just something. It like fire or some facing while gray hood of the Maxima I big I boom. And then And heard peace to the offi- intruders. Unbeknownst just fire just a whole bunch of cers, heard Quinta- Claybrook’s daughter-in-law, and, I you And then heard market. Be- works know. Claybrook, na at the worked like, I concealed And was we’re himself behind a another boom.3 slightly elevated concrete structure which Somebody’s robbing us. robbed. getting strategic firing pos- afforded a dominant Quintana’s back had been Tragically, ture. Each of the three officers testified that by stray bullet. She testified struck they again once warned the assailant telephone unsuccessfully attempted to she Instead, drop weapon. he his aimed his phone. then “911” on her cellular She shotgun directly at them. The officers husband, Jr., report called her defensively suspect, bringing fired at the attempting were that armed assailants him ground. Approximately to the However, Claybrook. her and because moment, rob same marked units trans- officers, following porting crouched inside her vehicle uniformed as well as an she containing emergency ambulance medical volley, did not witness the the initial she (“EMTs”), technicians arrived at the scene. shoot-out. transpired The entire incident had within ensuing fírefíght, During much of the only one two minutes. Claybrook shielded himself behind the pronounced dead at by Clay- discharged Maxima. Rounds scene, had sustained a mortal head wound. hood, windshield, brook struck Upon seriously injured discovering three door of the officers’ cruiser. The Maxima, Quintana inside the the EMTs testified, Quinta- contrary to police officers University her to Vanderbilt Hos- rushed assertion, Claybrook discharged na’s pital, emergency she received medi- where firearm at least twice before his subsequent cal attention and extended hos- They return the assailant’s fire. able to pitalization. that, the initial following asserted further February plain On exchange gunfire, they endeavored to instigated complaint tiffs court district officers identify themselves as *6 under section 1983 and Tennessee law. manual dis- by verbalizations reinforced Jr., Royal Count one asserted Gwan plays badges of their which each official nette, Claybrook, and Petrece as the “heirs Nevertheless, Clay- a chain. wore on neck father, at law” of their deceased suffered brook continued to shoot them. Officer injuries consequent to the three defendant gunshot wounds to his Birchwell sustained parent’s their alleged officers’ violations of and left foot. He right thigh and knee two, Claybrook’s rights. civil Via Count police dispatcher, via reported then to the recovery from Rob sought three children fired, radio, again and that shots had been Kirchner, the Chief Executive Officer ert back-up assistance. requested immediate County Metro of the Nashvüle-Davidson time, suspected approximately At Department,4 alleged for his politan Police perpetrator fled behind the market. How- (1) super properly failure to train and/or ever, apparently rejecting op- the available police the three officer defendants vise by (2) unharmed means of an escaping tion of departmen implement adequate and/or street, Claybrook circumambulat- adjacent application policies circumscribing tal in three advanced the deadly the structure a bid to ambush force. Count ed Royal Quintana and her husband claims of from the rear. agents very easy employee equivalent is to a lawsuit public "it’s a 3. Birchwell testified that shotgun. distinguish pistol entity a A against public shot from which that directed firecracker,” Graham, while pistol shot is sort of like a Kentucky represents. 473 agent deep, shotgun low boom.” 159, 165, "a is U.S. (1985). Municipalities "per are and counties 10, 1997, April the district court dis- 4. On litigation exposed to under section sons” against Rob- all claims asserted Chief missed Basinski, 1983. Mumford capacity, but ert Kirchner in his individual denied, Cir.), U.S. 118 cert. 522 defendant, capacity an official retained him as (1997). 139 L.Ed.2d ruling appellate fo- is not before this which against capacity claim filed rum. An official ONE infringements COUNT officers’ averred for the Jr. ar- Quintana’s rights. civil Count four allegations in 33. On basis Kir- Quintana’s against claim ticulated paragraphs through [generally similar to allegations in chner anchored plaintiffs’ version of the averring the five, in count two. Count stated
those 28,1995], February defendants events of plaintiffs, alleged all asserted liable, Birchwell, Spencer and Birchwell, Lewis, Lewis Spencer and had com- law severally, plaintiffs mitted state torts.5 jointly both Jr., Royal Claybrook, E. Gwannette Claybrook’s three children re- Each of Claybrook, and Petrece $125,000 plus damages, in actual quested Sr., Royal Claybrook, at law of E. heirs punitive damages, equivalent an sum conduct, Quintana sought individually against each defendant. for the defendants’ $250,000 for her compensatory damages concert, rights to violate the civil injuries, plus equivalent an personal Royal Claybrook, E. Sr. under the punitives, against defen- amount of each First, Second, Fourth, Fifth, Eighth plaintiffs petitioned further dant. The Fourteenth Amendments to the United attorney an under award fees U.S.C. in- rights Constitution. These States 1988(b), equitable § declaration that from right clude the to be free unlawful the Nashville had violated their civil from exces- arrest and unreasonable and injunction rights, compelling and an re- force, sive use of to freedom of police department’s form of the Nashville movement, arms, keep and bear to be deadly policies. force punishment, free from cruel and unusual Following lodging of the defendants’ pro- law equal to due and to complaint, plain- to the initial аnswers tection of law. tiffs, May on filed four-count reiterated, complaint amended
modifications, through causes one four of COUNT TWO However, complaint. their original allegations 34. On the basis of the added, alia, plaintiffs language inter paragraphs through defendant complaint clarify that their intended to Jr., Gwannette, Clay- Robert Kirchner liable to Royal and Petrece alleged Jr., brook did not satisfaction for seek E. Gwannette themselves; rather, personal losses *7 Claybrook Claybrook, and Petrece action, the instant prosecuting as Sr., Claybrook, at law of E. Royal heirs estate, representatives of the decedent’s develop policies for his failure to and compensation Claybrook’s pre-death for of procedures, properly to train cоn- deprivations. caption constitutional of activities, in duct undercover [sic] plaintiffs complaint the amended listed deadly regard train with to the use of as: supervise regulate force and to and ade- CLAYBROOK, JR., E. ROYAL GWAN- protect Royal Clay- so E. quately as to CLAYBROOK, NETTE PETRECE brook, prevent and to Sr. violations CLAYBROOK, CO-ADMINISTRA- Claybrook of rights the said Sr.’s as OF THE OF ROYAL TORS ESTATE alleged paragraph [paragraph 33?] CLAYBROOK, SR., QUINTA- E. AND above. NA CLAYBROOKU (Boldface added). Additionally, complaint the amended al- (1) leged parent-child relationship of by Claybrook’s counts
The two advanced Jr., Gwannette, Royal three children related: and 1997, 10, April plemental jurisdiction judge 5. On the trial dismissed over a stale law claim. 1367(c). § prejudice That is not count five with in the exercise of its U.S.C. mandate statutory sup- reviewing discretion to decline to extend before this forum. estatе, four); administrators of cou- through one (paragraphs Petrece (2) pled express allegation para- with an at Royal, “Plaintiffs Gwannette effect, graph six to that same the district Claybrook are co-administrators Petrece counts one and as Royal Claybrook, E. Sr.” court construed two of the Estate of (3) six); seeking only compensation alleged per- a result (paragraph “[a]s defendants, suffering experienced sonal losses and in- wrongful acts of the Jr., dividually by Claybrook’s Gwan- three children. E. plaintiffs court Claybrook Consequently, the district dismissed Claybrook and Petrece nette plaintiffs expenses, as one and two because the medical and funeral counts incurred personal claims standing associated lacked initiate as emotional loss great well stemming alleged from violations of their death of their father.” wrongful with the Furthermore, federally protected deceased father’s liber- thirty-one). (paragraph person- ties.6 Prayer sought for Relief plaintiffs’ punitive damage compensatory al Upon de novo review of a trial them, of as well as collec- awards for each complaint court’s dismissal of a under Rule relief, conformity equitable
tive
12(b)(6),
complaint
allegations
of
it
complaint’s prayer; but
original
their
liberally
plain
in the
should be construed
any relief for the
expressly request
did not
favor. Lewis v. ACB Business Ser
tiffs’
Royal Claybrook,
E.
Sr..
Estate
(6th
vices, Inc.,
135 F.3d
Cir.
court,
discovery, the district
Following
1998).
complaint should not be dis
“[A]
1, 1998, granted the defendants’
July
on
failure
state a claim unless it
missed for
amended com-
for dismissal of the
motions
beyond
plаintiff
that the
can
appears
doubt
summary judgment. The
plaint and/or
support
his
prove no
of facts
set
July
timely appeal
on
plaintiffs noticed
entitle him to relief.”
claim which would
20,1998.
Gibson,
41, 45-46, 78
Conley v.
(1957)
(emphasis
Circuit,
section
In the Sixth
omitted).
added;
case,
In this
note
entirely personal
of action is
1983 cause
counts one and two
lower court dismissed
alleged
the direct victim of the
constitu
that the
had
on the sole rationale
Bloechle,
F.2d
tional tort. Jaco v.
they sought damages
plead
failed to
(6th Cir.1984).
See also Purnell
fa
representatives of their deceased
Akron,
n. 6
City
948-49
alleged
for his
ther’s estate
(6th Cir.1991); May
County
Trum
However,
plenary scrutiny of
injuries.
(Table),
bull,
missals counts one and two are re- versed, and the case remanded to the 36. allegations On the basis of the district court for proceedings further re- in paragraphs through defendant garding those causes of action as are con- Robert plaintiff Kirchner is liable to sistent with this decision.7 Quintana Claybrook for his failure to
develop policies procedures, contrast, By the district court cor train properly conduct [sic] rectly resolved that activities, counts three and four undercover to train with re- complaint sup amended were not gard deadly the use of force and to ported by sufficient evidence.8 supervise regulate Those adequately so causes action recited: protect as to Claybrook and that, emphasizes 7. This court as to sufficiency counts one 8. Because consideration of the complaint, and two of the amended only it rules necessary dispose evidence record sufficiently that the al four, below, counts developed threе and leged seeking monetary compen rejec- this review construes lower court's sation, as the co-administrators of the dece tion of those summary causes of action as a estate, alleged dent's constitutional torts 12(b) adjudication. See Fed.R.Civ.P. & 56. personally by Claybrook, suffered af standing Clay- them fords as vindicators of above, developed 9. For the reasons rights brook’s individual federal to the extent standing Jr. lacks under section survived, that his tort claims under Tennessee compensation any 1983 to claim indirect law, beyond his death. own See Jaco v. injuries allegedly by caused to him reason of Bloechle, 241-45 Cir. any Quintana spouse tort suffered his *9 1984); §§ Tenn.Code Ann. 20-5-102 & 106 irrespective poten- (1994 Supp.1998). reviewing & This forum Quintana’s personal tial merits of claims. expresses opinion regarding the substan any tive merits of claim asserted within counts onе two of the amended com and/or plaint.
359
tar
who
not intended
police conduct
of the said
prevent
the violations
to
official “seizure”
rights
attempted
as al-
of an
are
gets
pro
substantive due
[paragraph
adjudged according
35?]
to
paragraph
32
leged
County
v.
norms.
Sacramento
cess
above.
of
1714-16,
833,
1708,
U.S.
118 S.Ct.
523
review,
dis
Quintana has
On
(1998).
L.Ed.2d 1043
140
her
of
trial
dismissal
puted only the
court’s
due
Amendment substantive
Fourteenth
Fundamentally,
the substan
that
Ordinarily,
charge
claim.10
process
process
component
tive
of the due
clause
used excessive
personnel
enforcement
law
arbitrary
ex
against
insulates citizens
arrest, which
to effect
force
power. Id. at 1716.
governmental
of
ercise
individual, is
injury to that
bodily
caused
conduct of a law enforcement
Accordingly,
“ob
Amendment
under Fourth
assessed
a citizen which “shocks
officer towards
standards.11 Gra
reasonableness”
jective
victim fundamental
conscience” denies the
394-97,
386,
Connor,
109
490 U.S.
v.
ham
Id. at 1717. In
process.
due
substantive
(1989);
1865,
Ten
L.Ed.2d 443
104
S.Ct.
state,
implicated
wherein
situations
7-9,
Garner,
1,
S.Ct.
v.
U.S.
nessee
municipal agent(s) are afforded
county, or
(1985). Accordingly,
1694,
L.Ed.2d
var
opportunity to deliberate
a reasonable
of
by means
arrestee is
an
“seized”
when
prior
electing
a course
ious alternatives
force,
dependent section 1983
any
deadly
(such as,
most occa
example,
for
of action
or his or her
by
target,
claim initiated
ignore
whereby
officials
sions
corrections
that,
estate,
by proof
supported
be
must
needs), their
medical
an inmate’s serious
circumstances,
pertinent
under
conscience-shocking
will be
actions
deemed
suspect were
detain the
used to
means
“deliberate indif
they were taken
if
However,
Id.
objectively “unreasonable.”
plaintiffs federally
towards the
ference”
“reasonableness”
Amendment
the Fourth
at 1719. In contra
rights.
Id.
protected
section 1983
apply
not
standard does
fluid,
distinction,
evolving,
and
rapidly
in a
physi
seek remuneration
claims which
precludes
predicament which
dangerous
upon
inadvertently
injuries
cal
inflicted
pre-re
and reflective
luxury
of calm
police officers’
party by
third
innocent
an
(such as,
example,
deliberation
sponse
to seize a
attempting
while
of force
use
riot),
reflexive
public servants’
prison
could
the authorities
because
perpetrator,
only if they
actions “shock
conscience”
than one who
any person other
“seize”
not
“maliciously
employed
force
involved
of
object
their exertion
of
a deliberate
very purpose
causing
sadistically for the
County
Inyo, 489 U.S.
v.
Brower
force.
faith
good
than “in a
effort
rather
harm”
L.Ed.2d 628
109 S.Ct.
discipline^]”12 Id.
to maintain
restore
(1989). Rather,
claims
tort
omitted).
(citation
injured by
at 1720
collaterally
by persons
asserted
order, while not exac-
and maintain lawful
the United
The Fourteenth Amendment
10.
necessary
stipulates,
pertinent
erbating
more than
disorder
Constitution
States
any
deprive
supposed
They
...
to act
segment,
jobs.
"No state shall
are
their
do
life,
property, without
liberty, or
person of
at the same
decisively
restraint
and to show
Const, amend.
U.S.
law[J"
moment,
due
have to be
their decisions
XIV, § 1.
haste,
pressure, and fre-
under
made in
luxury of a second
quently without
posits, in relevant
Fourth Amendment
11.
chance.
people
be
right
portion,
"The
Lewis, 523 U.S.
County
Sacramento
against unreason-
persons ...
in their
secure
1708, 1720,
Applying
principles,
“[r]egardless
[Deputy]
those
the
whether
Smith’s
analogized
high-speed
a
mo
Lewis Court
behavior offended the
held
reasonableness
chase,
led to the accidental
torcycle
which
up
law
by tort
or the bаlance struck
law
pursued
motorbike’s innocent
death
prac
enforcement’s own codes of sound
prompted by “unforeseen cir
passenger,
tices,
conscience,
it does not shock the
an offi
[which] demanded]
cumstances
petitioners
upon
not called
are
to answer
judgment,”
prison
instant
to a
riot.
cer’s
1983.”).
§
for it under
See Radecki v.
Thus,
exacting
Id.
the more
“malicious or
(10th
1227,
Barela, 146 F.3d
Cir.
proof,
sadistic” standard of
rather than the
1998) (concluding that no conscience-
comparatively relaxed “deliberate indiffer
shocking
implicated by
behavior was
criterion,
evidentiary
ence”
controlled
deputy
emergency
sheriffs
enlistment of a
due
“shocks
conscience” substantive
bystander’s
subduing
civilian
assistance in
process element.
Id. at 1720-21. Similar
dangerous
prompted
assailant which
ly, the “malicious or sadistic” test of con
civilian),14
perpetrator
slay
cert. de
science-shocking behavior controls the in
—nied,
-,
869,
because,
U.S.
119 S.Ct.
beyond controversy,
stant action
Birehwell, Lewis,
Spencer
(1999).
Officers
had
L.Ed.2d
opportunity
ponder
or debate their
Indeed,
reflected,
the record
without
reaction to
dangerous
actions of the
contradiction, that the three
un-
defendant
armed man.13
agents
dercover
not
anyone
did
know that
Hence,
if,
even
as the
to,
present
gray
prior
Maxima
argued,
the actions of the three de
or
during,
exchange
gunfire
which
patrolmen
departmental
fendant
violated
Quintana’s
Thus,
injury.
caused
the de-
policy
negligent,
or were otherwise
no ra
not
maliciously
fendants could
have acted
conсlude,
tional fact finder could
even af
sadistically
towards
unknown indi-
ter
considering
light
the evidence
Brennan,
vidual. See Farmer v.
511 U.S.
Quintana,
most favorable to
those
825, 835-36,
128 L.Ed.2d
peace
operatives
enforcement
acted with
(1994) (explaining
that malicious or
conscience-shocking malice or sadism to
unjustifiable
sadistic behavior entails
in-
shooting
wards the unintended
victim.
Lewis,
that,
361
causing
to
vic- court’s dismissal of
Three and
purpose of
harm the
Counts
rect
tim).
reversed, I respectful-
Four should also be
ly
majority’s
dissent from
the
decision
Hence,
supported
all
construing
affirm the dismissal of these counts.
most fa
allegations and record evidence
I disagree
majority’s applica
with the
fact
vorably
Quintana,
for
rational
find
ap
tion of what it
the
considers
be
Birchwell,
conclude
er could
Officers
propriate standard under which the sub
Lewis,
her sub
Spencer violated
and/or
process
stantive due
claim of
process rights, because the
stantive due
(“Ms.
Claybrook”),
forth
as set
they acted
prove
cannot
with
plaintiff
Four,
Three and
be
Counts
should
Thus,
or
her.
the
malice
sadism towards
analyzed.
majority
the
applies
summary
for
judgment
those
lower court’s
shocking”
“conscience
standard used for
count three of the amended
defendants on
Lewis,
involving
police
situations
instances when
correct.
523
complaint was
See
833,
make
ac
officers are called to
“fast
at 1714 n. 5. Further
U.S.
118 S.Ct.
more,
facing
charged
ensuing
conduct
such as when
tion[s]”
because the
official
prison riot or when in the throes of a
any
depriva
not inflict
constitutional
did
Kirehner,
high-speed
chase.
such
upon Quintana,
tion
defendant
Under
circum
fault,
stances, a much
capacity
higher
as
Executive
standard of
his official
the Chief
“
applied
such
‘whether
was
in a
County
of the Nashville-Davidson
as
force
Officer
Department,
good
effort
Metropolitan
cannot be
faith
to maintain or restore
Police
neglect
discipline
maliciously
sadistically
any alleged
liable to her for
or
”
harm,’
officers,
very
supervise
purpose
causing
those
or failure
for the
train or
develop
must
shown in order to hold a
appropriate deadly
poli
force
be
cies;
summary
County
officer liable. See
Sacramento
therefore the lower court’s
1708,
Lewis,
833, 118
proper.
of count four
also
v.
S.Ct.
dismissal
U.S.
1720,
(1998)
Heller,
City
Angeles
(quoting
Los
475 U.S.
When conducting an “exact analysis” of brook’s substantive due rights. the facts of this case the light most For example, questions of fact exist as to favorable to Ms. it is clear that whether the officers Clay- observed Ms. the officers had sufficient time to make an brook enter the reasonably car or should judgment unhurried about their conduct have Claybrook known that Ms. was in the upon seeing Claybrook Mr. weap- car, with his in that if passed officers on such that a lower level of fault claimed, should market at they the time a reason- applied. be testified, As the officers they person able could believe they ob- department aware of rules requiring served Claybrook Ms. leaving the market them to radio for a marked car and uni- entering Furthermore, the car. officers, formed they a made conscious question of fact exists as to whether the deprived of not be Claybrook should Ms. the confron provoked should officers of wheth- question on the to trial right uni her before the Mr. tation with arrived, shooting violat- er the circumstances back-up officers formed process rights. them due have identified ed her substantive they should whether Clay- Mr. when officers as selves I the district Accordingly, would reverse gun, down his to throw refused brook claim of Ms. court’s dismissal Indeed, offi at him. firing opposed of her officers for violation against pull attempted to testified cers as set forth process rights due substantive gunfire,” “during the only badges out their the com- and Four of Three in Counts *13 begun. already had gunfire or after supple- also reinstate plaint. I would emergency circum Notably, there were law claims. mental state the offi require as to present so stances following shooting without begin to cers making a reasoned without
protocol the vehicle
decision as whether cir these under Accordingly,
occupied.
cumstances, decide whether jury a should indiffer acted with deliberate
the officers Lew rights. See Ms.
ence to (noting the instances is, Forseth, FORSETH, Randy S. Arnold T. found indifference” could be of “deliberate Company, a Wisconsin Land and A&R custody where pretrial of in the context Plaintiffs-Appellants, Partnership, General welfare is inmate’s about an “forethought v. obligatory under but only feasible not ex prisoner to incapacitates that regime own for his responsibility ordinary ercise SUSSEX, a Wisconsin OF VILLAGE Flor City
welfare”); see Stemler also Tews, H. Corporation, John Municipal of Cir.1997) (6th (sug ence, 126 F.3d President, Individually Village and as pro due substantive. that gesting under Village Swartz, Ad and M. Chris “ in a can cess, duty protect arise ‘a Defendants-Appellees. ministrator, any does if the state setting noncustodial No. 98-3751. more vulner individual to render an thing City ”) Gazette (quoting danger’ able Appeals, Court of United States Cir. Pontiac, Circuit. Seventh surely could 1994)). minds Reasonable 23, 1999 Argued Feb. offi plainclothes toas whether differ Clay- Mr. open fire on cers’ decision 3, 2000 Jan. Decided evening outside in the at nine o’clock brook patrons where area a market in their been seated could have the store
vehicles, officers admitted when the immi they not feel
they did to the level deliberate danger,
nent rose Claybrook’s rights. Ms.
indifference con could
Indeed, person a reasonable open on who fire
clude that officers evening in the o’clock street at nine
public danger no imminent they are in
when may believe
every reason to public. injure members
recklessly case, by this presented the facts
Under