Linda K. Wood v. Steven C. Ostrander Neil Maloney

THOMPSON, Before FLETCHER and CARROLL, Judges,* and Circuit Judge.** District ** * death, Carroll, Judge Judge Thompson Honorable Earl H. United States Dis- After Anderson’s Arizona, Judge sitting Judge was substituted for Anderson. He has trict for the District tape argument, initial listened to the oral designation. record, excerpt has read the briefs and argument rehearing. has heard oral THOMPSON, R. Circuit DAVID Eleven store were open visible and Judge: for business. Ostrander further claims picked up by that Wood was an unknown brought Linda Wood this action driver before Ostrander away, drove al- against Washington under 42 U.S.C. § though Bell dispute and Wood this. Trooper Ostrander State Steven and his wife, Maloney, and Neil Chief Officer of Ostrander left Wood near military res- Washington State Patrol and his wife. ervation the Parkland area of Pierce appeals summary Wood the district court’s County, highest aggravated which has the judgment dismissal the case as to all crime county rate outside the affirm the defendants. We district court’s temperature Tacoma. The fifty de- Maloney wife, dismissal and his grees wearing and Wood only a blouse reverse the dismissal as to Ostrander and jeans. alleges Wood that after walk- his wife.1 ing home, one-half block toward her away, having was five miles turned FACTS down rides offered three or strang- four a.m., morning Septem-

At on the ers, 2:30 accepted she a ride with an unknown 23, 1984, Trooper pulled ber Ostrander a man. The driver took Wood to a secluded driying car to of the road the side for raped area and her. high its beams on. Ostrander determined The district court denied defendants’ driver, Bell, that the Robert was intoxicat- first summary judgment motion, ruling placed ed him under arrest. Ostrander that Ostrander’s actions could not be char- called for a tow truck to have the car acterized merely negligent. Subse- impounded, and returned to the car and quently, the granted district court defen- Wood, keys. removed the sitting who was dants’ second motion summary judg- for car, in the asked Ostrander how she would ment, ground on the that Ostrander was get replied home. Ostrander that he was good entitled qualified faith immunity, sorry, get but that Wood would have to out and that Ostrander owed no “affirmative disputed. of the car. These facts are not protection” constitutional to Wood.2 simply

Wood claims that Ostrander re- patrol turned away. to his car and drove grant We review the district court’s Ostrander that summary claims he offered to call a judgment de novo to deter family friend or give member who could mine whether any genuine there is issue of home, Wood a ride that she declined material fact and whether the substantive Although the offer. Wood claims that she law correctly applied. Darring v. Kincheloe, any open did not see business at the time 874, (9th Cir.1986). 783 F.2d 876 away, Ostrander drove Ostrander claims All facts in the record and inferences that a Shell service and a Seven- drawn station from them must be viewed 793, presented any argument (1964). 1. Wood has not on express P.2d 795 We no on issue, appeal, any challenging or raised the dis against the merits of the claim Mrs. Ostrander. Maloney trict court's dismissal of the case as to However, given purpose the limited of this and his wife. It is well settled in this circuit dependency against claim and its on the claim appellant’s that claims not addressed in an brief Ostrander, Trooper we do not deem it to have abandoned, showing are deemed absent a that been abandoned at this time. injustice manifest will result. United States v. 1483, 1487(9th Cir.1987); Loya, 807 F.2d Collins 2. The district court did not rule on defendants’ 337, Diego, (9th v. San 841 F.2d 339 argument damages claim should be Cir.1988). showing No such has been made in proximate grounds. dismissed on cause Al this case. though presumably this court could affirm on against The claim Mrs. Ostrander is different. legal sup that basis if it had merit and factual Although no mention of her is made in the record, see, port States, e.g., in the Lee v. United brief, appellant’s appears she was named as a 1406, (9th Cir.1987), denied, 809 F.2d 1408 cert. solely purpose defendant in the case attempting for the of — -, 772, U.S. 98 L.Ed.2d 859 subject community the marital (1988), proxi defendants have not raised the liability any judgment the Ostranders to for argument appeal. mate cause We have not might against Trooper be entered Ostran- examined its merits. 253, Griffith, der. See Brink v. 65 Wash.2d 396

587 non-moving something par less than intentional to the light most favorable conduct, Rocky Mountain ‘gross such as recklessness or Exxpress v. ty. Clipper Inc., 1240, negligence,’ enough trigger Bureau, pro 690 F.2d Motor Tariff denied, tections of the Due Process Clause.” Id. cert. (9th Cir.1982), 459 U.S. 3, (1983). 334 n. 106 S.Ct. at 667 n. 3. 1234, 1227, 103 L.Ed.2d 468

A number of circuits have held reckless negligence gross ness or sufficient to state DISCUSSION claim; none a section 1983 has held that 1983 Claim Viability the Section I. only intentional misconduct will suffice. section sustain an action under To See, Ledbetter, 791, e.g., Taylor v. 818 F.2d (1) 1983, plaintiff must show (11th Cir.1987) (en banc) (claim by a complained committed of was conduct negligent’ ‘grossly state “were or officials ” law; and acting color of state person under ‘deliberately indifferent’ is “sufficient plaintiff (2) deprived the the conduct overcome either a Daniels or Davidson statutory or of a federal Campbell County bar”); Vinson v. Fiscal Napa, County Rinker right. Court, 194, (6th Cir.1987) 820 F.2d 199-200 Parratt (9th Cir.1987) (citing 829, F.2d cognizable (gross negligence under section 527, 535, 101 S.Ct. Taylor, 451 U.S. 1983); Rochford, 592 F.2d (1981)). It 68 L.Ed.2d Cir.1979) (gross negligence im arresting Bell and disputed that disregard safety of others reckless car, acting O’Lone, pounding Ostrander cognizable); see also Davidson v. ar (en law. Ostrander (3rd Cir.1984) banc), color of state under 752 F.2d Cannon, however, nom., that Wood has failed v. gues, sub Davidson 474 aff'd section 1983 cognizable 344, 668, claim under state a 106 88 L.Ed.2d 677 U.S. S.Ct. first, because, his was at most (1986) (gross negligence conduct or reckless indif and, second, adequate view).3 negligent sufficient) (plurality Wood has ference pursue her claim. These remedies to state In The law in this circuit is unclear. in turn. are considered issues Bautista, 857 Fargo City v. San Juan of (9th Cir.1988) stated that F.2d 638 we Negligence” Bar A. The “Mere negligent reckless official con- “grossly or Williams, pro- infringes upon an interest duct that Daniels v. 474 U.S. 662, 664-65, by process the due clause action- 327, 330-32, 106 88 L.Ed. tected S.Ct. Cannon, under section 1983.” Id. at 640. We and Davidson v. (1986), able 2d 662 statement, however, 668, 670, on the first 344, 347, this 88 based 474 106 S.Ct. U.S. Ostrander, case, Wood (1986), opinion in this Supreme the Court held L.Ed.2d 677 (9th Cir.1988). 1212, 1214-15 by care 851 F.2d negligence or lack of due that mere by opinion amended Wood protec first has been trigger the officials does state Moreover, gross negli- opinion. the fourteenth amendment tions of the in our articulated gence sec standard which we a claim under therefore does state on Ketchum Wood so, first was based doing the Court overruled 1983. In tion Alameda, F.2d 1243 Parratt, County 536-37, 811 451 U.S. at part of Cir.1987). by a claim a Ketchum negli involved 1913, that a which held 101 S.Ct. at in- by escaped an raped by state officials woman who gent property loss of county contended the due mate. The victim “deprivation” under the could be a maintaining Daniels, negligent grossly at 330- had been clause. 474 U.S. process inmate However, facility where the security at the 31, the 106 S.Ct. at 664-65. summary confined. We affirmed open question the had been expressly left Court 1200, police Joliet, burning ready trapped car when the in a City 715 F.2d 1206 3. Jackson 1049, distinguished denied, expressly (7th Cir.1983), The court arrived. cert. 465 U.S. 1325, (1984), created officials’ actions cases in which state is not contra. S.Ct. There, 79 L.Ed.2d 720 protec- special danger grossly negligent or created a the court found that a plaintiff. See id. at 1204-05. attempt section tion toward the was not actionable under rescue detail in more plaintiffs were al- We discuss Jackson decedents 1983 where infra. Gamble, 97, 104-05, of the state defendants Estelle v. judgment in favor U.S. 291, (1976), victim, a S.Ct. 50 L.Ed.2d 251 ground reh’g as member denied, large, 429 U.S. have “a S.Ct. public did not (1977)(prison L.Ed.2d 785 officials’ deliber special relationship with the or the state disregard prisoner’s ate serious illness criminal,” hence “had no federal consti- injury eighth or violates amendment and is right protection from crim- tutional to state cognizable 1983). under section The ratio We inal attacks.” did not Id. at underlying negligence- nale Daniels’ bar of question culpability of what decide based section 1983 claims is that mere lack applicable been if standard would have care, leaving pillow of due such as on the had relationship such a existed. Id. at 1246 (Daniels) prison mislaying stairs or an in n. 3. (Parratt) property mate’s “quite re Supreme recently adopted Court has mote” from the fourteenth amendment’s the standard of deliberate indifference as purpose redressing power by abuses of culpability necessary standard to estab 332, 106 state officials. 474 U.S. at S.Ct. at liability municipality lish section 1983 of a case, present put 665. In the the facts upon municipality’s claim that the based issue Wood—that Ostrander arrested training police lack of officers was a driver, car, impounded and left policy causing a violation of a constitution night Wood the side of the road at in a right subject person al of a action. high-crime area —show an assertion of — Hams, U.S. -, City Canton v. government power which, according to (1989). L.Ed.2d 412 case, Wood’sversion of the tends to show a expressly The Court in Canton reserved disregard safety amounting for Wood’s question whether the deliberate indif deliberate indifference.4 apply ference standard would also to “an underlying claim of a constitutional viola B. The “State Bar Remedies” Harris, tion.” Canton v. Taylor, Parratt v. 451 U.S. at reservation, Despite at 1204n. 8. how 541-44, 1916-17, proge 101 S.Ct. at and its ever, calls into our Canton state ny deprivation liberty hold that prior opinion in our Fargo ments property cognizable is not under section that, showing gross negli of this case a post-deprivation 1983 when a state’s reme gence requisite suffice to establish the will adequate protect dies are pro a victim’s level in a of fault section 1983 action See, process rights. cedural due e.g., Hud against an state actor such as individual Palmer, 517, 533, son v. 468 U.S. 104 S.Ct.

Trooper Ostrander. 3194, (1984).5 However, 82 L.Ed.2d 393 Here, however, genu- Wood has raised a Parratt line of cases does not focus “[t]he tending ine issue of fact to show that procedural protections on the relevance of Trooper in- Ostrander acted with deliberate alleged violations of substantive consti personal interest difference to Wood’s rights.” tutional City Smith v. Fonta of security under the fourteenth amendment. na, 1411, 1414(9th Cir.1987), 818 F.2d cert. — 793, Ledbetter, Taylor See v. 818 F.2d at denied, -, 311, 108 S.Ct. 98 U.S. (deliberate (1988). 795-97 indifference to victim’s L.Ed.2d 269 Accordingly, the exist well-being negligence sup- is more than ence of state remedies is irrelevant and the claim); ports inapplicable section 1983 Davidson v. plaintiff Parratt bar where the O’Lone, 828; supra, alleges right 752 F.2d at see also a violation of a substantive might 4. A jury presented defining these facts find court will face the difficult task of for "deliberately Ostrander’s conduct to have been indifferent," jury "negligence,” "gross negli- the terms "reckless,” "grossly negligent,” or "recklessness,” gence," and "deliberate indiffer- merely "negligent." Fargo City See v. San Daniels, 334-35, of ence.” See 474 U.S. at 106 S.Ct. Bautista, 638, (9th Cir.1988) Juan F.2d 641 857 666-67; Fargo, at 857 F.2d at 641-42. ("When may disagree persons reasonable as to particular negli- conduct constitutes aspect by 5. This of Parratt was not overruled recklessness, gence, gross negligence or Daniels. question by jury.” is one of fact to be decided (footnote omitted)). likely It is thus the district

589 Rights under either the Bill of or the due stitutional line been crossed’ so as to ha[s] Smith, 818 F.2d process deprivation clause. at constitute a of substantive due Dept. Police, process.” accord Mann v. Tucson Berkeley, Rutherford (9th 790, Cir.1986) 1444, (9th (per Cir.1986). 782 F.2d 780 F.2d 792-93 1447 curiam); Daniels, Ingraham Rutledge suggest 474 do see also U.S. at 337- (Stevens, 39, J., Ingraham, otherwise. 106 at 677-79 concur the Court S.Ct. con only procedural sidered ring) (section process due alleging 1983 claim violation chal lenge based on the process hearing lack of a of substantive due not barred before corporal punishment was meted remedy); Parratt, out. See existence of state 451 674, 680-83, 430 U.S. at 545, 101 (Blackmun, J., S.Ct. at 1417- at 1917 U.S. S.Ct. In Rutledge, analyze court did not (due concurring) process clause extends be assault, deciding seriousness matters). yond procedural preclusive that Parratt was of such in argues Ostrander exist quiry. 660 F.2d at 1352. To the extent remedy pre ence of a tort state Wood found Rutledge Parratt to bar section cludes the section 1983 claim under Par rights claims for substantive violated Ostrander, According only ratt. dis by assaults, official it does not survive tinction between this case and the Parratt ruling court’s Haygood en banc progeny line is that Parratt and its involve Cir.1985), 1350, Younger, 769 F.2d deprivations property whereas this case denied, 1020, 106 rt. 478 U.S. S.Ct. ce alleged deprivation liberty. involves an 3333, (1986). 92 L.Ed.2d general More 651, Wright, Ingraham See 430 U.S. ly, process substantive due violations com 674-75, 1401, 1414, L.Ed.2d 711 prise pro those acts the state that are (1977)(child liberty personal had interest “regardless hibited of the fairness of the security and freedom from restraint and procedures implement used to them.” pain). argues infliction of Ostrander that Daniels, 331, 474 U.S. at 106 S.Ct. at 665. anticipate Supreme we should Court hold The seriousness of the mis official ing to the effect that Parratt extends to conduct determine whether “the con deprivations liberty, because Court procedural stitutional line” between a and a involving cited certain section 1983 cases process substantive due violation “has been support assaults to its conclusion that Par crossed,” availability so that the of state deprivations ratt extends to intentional court relief will not a section 1983 bar property. Palmer, See Hudson v. Clearly, claim. the line is crossed in in U.S. at 531 n. 533-34 n. See, police brutality. stances of serious 3202 n. 3204 n. 14. Ostrander also e.g., Rutherford, 780 F.2d at 1448. But relies on this court’s decision in Rutledge v. only “[p]artially answer[ed] Rutherford the Arizona Board Regents, 660 F.2d open Haygood” left as to (9th Cir.1981), sub nom. Kush aff'd assaults, whether “official batteries or oth 719, 1483, Rutledge, v. U.S. S.Ct. personal liberty” er invasions of amount to (1983), part L.Ed.2d 413 which held in process substantive due violations. Id. college a football coach’s assault on a brutality by police prison guards While or player cognizable not under section paradigmatic example is one of a substan violation, process tive due it does not ex argument unpersuasive, Ostrander’s possibilities. haust the wrong analy because follows the axis of Although Ostrander did not himself as- analyzed This sis. circuit has Parratt and Wood, allegedly sault he acted in callous progeny by distinguishing liberty its disregard physical security, for Wood’s a property deprivations, by versus rather liberty protected by interest the Constitu- analyzing procedural substantive versus Ingraham Wright, supra. tion. See rights deprivations. See, e.g., Smith v. Fontana, City 1414-15. issue of fact as F.2d at Wood has raised a triable inquiry The relevant depri is whether the to conduct “affirma- whether Ostrander’s “ sufficiently vation is tively placed plaintiff position serious that ‘the con- in a danger.” Ketchum, 811 F.2d at see dants further contend that there were Joliet, City Jackson v. 715 F.2d at 1204 paved sidewalks. genu- Even if there is no (distinguishing situation where arrest cre dispute ine factual matters, as to these danger, ates the actionable under section their open relevance is to by the danger from situation where existed trier of fact. The district court and the acted); before defendant see also DeSha readily defendants too assume that Wood’s ney Winnebago Cty. Dept., Soc. Servs. travail would have if been over she had — -, 998, 1006, U.S. 103 only gone to the Shell station or the Seven- (1989)(distinguishing L.Ed.2d 249 situation Eleven. It is for the trier of fact to deter- “played part” where state no in creating mine whether person a reasonable should dangers by that minor child faced re regarded have gas a station or convenience maining in his custody “nor father’s did store, located in high neighborhood, a crime anything do to render [the state] [the child] as some kind of safe where haven she any them.”). more to vulnerable The fact given would have been per- assistance or Bell, impounded Ostrander arrested mitted stay daybreak to until before walk- car, his and apparently stranded Wood in a ing miles telephone five Nor is a home. high-crime area 2:30 a.m. distinguishes help person much to a allegedly who has no general Wood public from the triggers money place to a and no call one to call.6 police of the her afford some These assumptions, factual express- either peace safety. measure of See White v. ly made, or impliedly particularly inap- are Rockford, (and F.2d 384 & n. 6 propriate for the district court to make therein). authorities cited See also Cham summary Co., judgment. King bers-Castanes v. 100 Wash.2d (1983); 669 P.2d 451 Opposi Plaintiffs There is dispute a factual as to whether Summary Judgment, tion to 2(c) Exhibits Ostrander made any inquiry at all as to (policy respond state to re ability home, Wood’s get safely quests for assistance in judi courteous and whether, instead, ignored request he her manner). cious for help. suggests Certain evidence Wood also has raised at least a triable Ostrander untruthfully superiors told his (if undisputed one) issue not an regarding that he was told being that Wood was knowledge Ostrander’s danger: offi picked up “friends,” (Exhibit some 4 to reports cial crime show that the area where Summary Judgment Plaintiff’s Opposition), Wood highest had the stranded violent disputed and it is whether Ostrander saw crime county rate outside the picked up Moreover, Wood at all. we can- Ostrander, Tacoma. trooper a state sta on our summary resolve review of tioned in that area since well be judgment whether acted Wood unreason- chargeable knowledge of these facts. ably by accepting a with an ride unknown Moreover, danger facing inherent man. questions resolution these night woman left alone at in an unsafe area for the trier of fact. is a matter of common sense. White v. Cf. Rockford, supra. We are present- satisfied that Wood has genuine ed issues of material fact on the Most of the factual in this disputes case question of deprived go Ostrander danger. the issue Defendants her of contend, liberty protected found, interest and the trial court that a 24-hour Shell Constitution. Ingraham and a 24-hour See Wright, station Seven- Eleven store supra; were located within Haygood v. Younger, two 769 F.2d at blocks of the location of stop. Defen- alleged

6. Wood that she night-blindness had little or money stepfather no suffers from her person on her put at time Ostrander her out damage. brain much these circum- How Although parents, car. she lived with her stances Wood told have Ostrander is not try because, she help did not to call them for clear from the record. Ostrander denies knowl- according allegations, they to her would have edge any allegations. of these pick up: been unable to her her mother has

591 II. Qualified, Immunity fact as to a number of these events. If the events occurred alleges, as Wood she has State officials cannot be held stated a violation of her right damages liable for under section 1983 un personal security, liberty pro their interest clearly less conduct violates a estab right. by lished constitutional tected Davis v. Scher the fourteenth amendment. See er, 183, 194, 3012, 3019, 468 U.S. 104 S.Ct. Ingraham Wright, supra, v. We now con 139, denied, reh’g 82 L.Ed.2d 468 U.S. sider, light qualified Ostrander’s im 1226, 26, (1984). 105 S.Ct. 82 L.Ed.2d 919 defense, munity po a reasonable qualified Officials are entitled to immunity lice position officer in his could have be if objectively their conduct is reasonable September 23, 1984, lieved on that his “ ‘as measured clearly reference to es Wood, alleged her, treatment of com ” 191, tablished law.’ 104 Id. S.Ct. at ported with the Constitution though, even (quoting 3017 Harlow Fitzgerald, v. 457 assuming the trier of accepts fact Wood’s 800, 818, 102 2727, 2738, U.S. S.Ct. 73 L.Ed. case, version of the actually did not.7 To (1982)). 2d 396 Ostrander is entitled to resolve question, we “survey must summary judgment qualified on based im legal landscape” as it in September existed munity if he can show that as a reasonable 1984 to determine whether it had been he officer could have believed his actions clearly established at that time that Ostran- toward were constitutional even if Wood alleged der’s conduct violated Wood’s liber they Ricketts, Vaughan were not. v. 859 ty interest under the Constitution.8 Ward 736, (9th Cir.1988). F.2d 739 See Anderson v. County 1329, San 791 Diego, F.2d 635, 3034, Creighton, v. 483 U.S. 107 S.Ct. 3038, (1987). Cir.1986), 1332 denied, 97 L.Ed.2d 523 The district cert. 483 U.S. 1020, court concluded that 3263, Ostrander was shield (1987). 107 S.Ct. 97 L.Ed.2d 762 by qualified immunity. ed We review this “Assuming conclusion de novo. that A. The Law in 1984 prove can the acts attributed to [Wood] Reed, In Capoeman 1512, v. 754 F.2d [Ostrander], entirely we decide the must (9th Cir.1985), 1514 this court

legal issue of held that “in alleged ‘whether the facts support clearly binding precedent, ... a claim of violation of absence a court ” Vaughan Ricketts, established law.’ v. should look to whatever decisional law is (quoting Forsyth, 739 Mitchell v. 472 available to ascertain whether the law 511, 9, 105 2806, 9, n. U.S. 528 2816 n. under established the Harlow test.” 411). 86 L.Ed.2d Accord, Brown, 1462, Bilbrey v. 738 F.2d (9th Cir.1984). The available decision- on predi events which Wood courts, al law includes cases from state cates her Sep section 1983 claim occurred 23, other circuits and tember 1984. We have held district courts. above that Ward genuine Wood has raised issues of County Diego, material San F.2d at 1332. argues 7. Should the trier of fact find that Ostrander’s 8. Wood also that Ostrander’s treatment indifferent, deliberately egregious treatment of Wood was of her was so it "shocks the might deprive quali right this alone Ostrander of his conscience” and violated her constitutional Sunn, immunity process. Rutherford, fied defense. See Wood v. substantive due See 982, (9th Cir.1988) ("Despite (citing California, F.2d F.2d at [Anderson 1446-47 Rochin v. 635, 3034, 165, 172, 205, 209, Creighton, 483 U.S. 107 S.Ct. U.S. 72 S.Ct. 96 L.Ed. 183 (1987) ], (1952), grounds, L.Ed.2d 523 of Albers Mapp [rule v. Whit overruled on other 1372, (9th Cir.1984), Ohio, ley, 743 F.2d reversed 367 U.S. 81 S.Ct. 6 L.Ed.2d 1081 grounds, (1961)). other 475 U.S. We do not decide this be- (1986) finding 89 L.Ed.2d 251 appeal ground that ‘a of delib cause we ] resolve on the which, quali erate indifference is prov- inconsistent with ... Wood has shown sufficient facts if immunity’ circuit.’’). trial, fied remains the right law of the en at establish a violation of her issue, however, personal security, liberty We do not reach this protected by because we interest apart applicable hold culpa from the the fourteenth amendment. This does not fore- infra conduct, bility standard for Ostrander's attempting he is not close Wood from to show at trial qualified immunity entitled to under the facts that Ostrander’s treatment her was such presented by Wood. it "shocks the conscience." unlawful, The case most like our case is White v. ... but it say is to in light Rockford, Cir.1979), 592 F.2d 381 preexisting law the unlawfulness must be reversed the dismissal section apparent.” Creighton, Anderson v. White, In the complaint. defendant (citation omitted); S.Ct. at 3039 see Mitch police a driver for drag officers arrested Forsyth, ell v. 472 U.S. at 535 n. racing Skyway, Chicago on the a busy, S.Ct. at 2820 n. 12. complaint The highway. limited-access al- The first is whether White is driver, leged who uncle to the meaningfully distinguishable from in- riding three minor children with him in the stant case. Both cases police involve a car, pleaded the officers with to take the officer’s roadside abandonment of non-ar- police station phone children to the or a parties. rested third apparently Ostrander they par- booth so that could contact their would have the court stranding decide that refused, ents. officers The instead left busy three children on eight-lane express- the children in the abandoned car on the way is much worse stranding than a lone roadside, in inclement weather. The court high-crime woman in a a.m., area at 2:30 alleged held that the conduct stated a claim indeed so much worse that the former is a under section 1983. officers “could constitutional violation while the latter is that, knowing not avoid absent their assist- not. It would seem Supreme ance, subjected the three children would be Court’s admonition in against Anderson exposure .danger to cold weather and looking repetition for a very of “the action from traffic. This in the indifference face question” applies forcefully against mak- dangers certainly known must consti- ing type comparison. Although the gross negligence.” tute 592 F.2d at 385 dangers facing the victims in the two cases added). (emphasis may come from very sources, different White, dealing years with decided five degree danger high both, is and the case, before the incident in this Ostrander alleged police exposing indifference to immunity frames the issue thus: plaintiffs dangers apparent is in both In determining whether Ms. Wood was suggestion instances. Ostrander’s that the subjected deprivation to a constitutional greater children were in danger than Wood it is the September state of the law on (“certain danger from the traffic and 23, 1984, which must be used to deter- weather,” Appellees’ 10) Brief unper- mine whether the violation occurred.... suasive considering actually what occurred: September 23, 1984, As of no court had none of the children injured by a car ruled that a officer owed a consti- (two anguish, suffered mental and a third transportation tutional make ar- aggravation suffered of his asthma condi- rangements for a non-intoxicated adult weather), tion from the whereas Wood was female who was left on the sidewalk of a raped. major easy walking urban arterial within distance at least two 24-hour busi- argues Ostrander also that White was following nesses person arrest of the merely “plurality” and, opinion further, she previously whom had been rid- adopted an parentist” rationale, “in loco ing. finding that the officers special owed a duty to the argument children. This Appellees’ (citation omitted). Brief at 9 mis- characterizes seemingly opinion Ostrander White. The suggests court and disposed agree case can of if the concurrence be on the does not bear a similarity strict basic rationale of previous factual section 1983 liability: cases “in- finding However, liability. difference this crabbed the face of [of officers] good dangers,” view of the faith known immunity principle (opinion F.2d at 385 court); cannot analysis. withstand “[unnecessarily As the endangering Su- preme reaffirmed, recently Court parties it is innocent disregard reckless protected case that “an official action safety,” their (concurrence) (em- id. at 388 by qualified immunity added). very phasis unless the ac- of the court in question tion previously has been held states that the officers could be liable un- analysis impor- In it is (1) in this did White. two theories: based on section der in There clarify the result tant to White. integrity” upon personal “intrusion for an in The lead opinions the case. were three reckless negligence or gross result of as a by Judge Sprecher. opinion was written others, (2) for of or safety for the disregard part. Judge Kilk- Judge in Tone concurred the conscience.” which “shockfs] conduct sitting by designa- was enny of our circuit The “in & n. 6. White, at 384-85 F.2d Judges Sprecher tion and he dissented. concept introduced was parentis” loco agreed police that the offi- Tone when and lengthy foot- of a half the second only in uncle and took arrested the children’s cers the state’s of the existence to buttress note exposed children to away, they him left the case, not as the in the duty as it arose car on a of “an immobilized the “hazards” at 384 n. 6. duty. Id. for basis such sole cold”, and highspeed expressway and [the] wheth- considers immunity standard The children’s violated the that this conduct officer enforcement law a reasonable er right to be free from “federally protected controlling. case as the view White should personal on their se- unjustified intrusions reasonableness, the of this element Given (Tone, police.” at 387 curity by the White estab- of immunity regime qualified J., concurring); compare id. at 384-85 sec- held allow not be to should law lished J., opinion)). (Sprecher, lead lawyerly interpose to defendants tion 1983 years in 1979. Four White was decided in or- sense defy common that distinctions Jackson Circuit decided later Seventh clearly established away distinguish der Joliet, Cir. 715 F.2d 1200 may officer that holds law. White Jackson, off the 1983). a car swerved he aban- 1983 when liable under section be Two road, into flames. crashed burst under arrested drivers passengers dons on policeman arrived later Joliet minutes to unrea- expose them circumstances car’s wheels by chance. The the scene sense danger. It defies common sonable on, lights its motor its were spinning, were legal between meaningful distinction find a burning. The it was running, and busy crossing a facing children dangers however, attempt deter officer, made no fend alone to a woman left highway and did not occupied and it was mine whether high-crime a.m. herself at 2:30 for fire call the He did an ambulance. call area. road to the then returned department. He the scene away from directed traffic inWhite B. The Precedential Effect min eight Firemen arrived the accident. This Circuit attempt re no They made utes later. however, here, end inquiry does the car occupants of or assist move necessarily establish did because front slumped in the who were observed few there are Where for this circuit. law An action occupants died. seat. binding, “an point, and none on cases alleging under section filed considered be factor additional been saved car could have occupants of the ‘clearly es ascertaining law is whether them, an or called aided if the officer had likeli is a determination tablished’ traffic not directed ambulance, least or at this circuit Supreme Court or hood potential prevented other way in a as the the same result” reached would have them, fire if the saving or from rescuers time. Ca at that non-binding authorities The district to aid them. had men tried Ward, accord poeman, 754 F.2d failure to dismiss court denied motions F.2d at re The Seventh Circuit to state a claim. stated: The court case, versed. or Supreme Court There was no offi- by state binding attempt circuit, an We hold that which was this case not a case at an accident cers to assist circuit events when the process life without due deprivation an Therefore, begin we occurred. Amendment Sep- under Fourteenth law likely, analysis of it was because attempt fails have when would that our circuit tember negligence of gross negligence even result the Circuit to the same Seventh come superiors, the officers or their Judge and the we cited language Posner’s from Bowers, accident victim dies. quoted above, support for this distinction. Id. Id. at 1206. The Jackson court distin- guished “officer-who-comes-upon-an-ac- its do Escamilla, We not look post-inci a cident” from “In case White: White v. decision, dent to determine whether the law danger the arrest created the “clearly established” at the time of the Rockford the children; [occupants here present incident in the Capoeman case. great danger wrecked were in before Reed, car] 754 F.2d at 1515. We don’t have to. [police appeared.” and Id. at By firemen] law had by been established 1204. The amplified Jackson court its dis- and White by articulated Bowers tinction of as a case “where the and Jackson. We do consult Escamilla to police arrested a driver and left his child note that it cited approval Bowers with passengers car, quoted Judge stranded in a driverless Posner’s comments in that putting case. thus the children in a also situation of Escamilla cited Jackson. Hav ing peril found consequences for the Bowers and Jackson in which the Escamilla, when we police wrote were held liable under we section 1983”. have no doubt we would have found these Id. cases in is, question 1984. The would we have fol Jackson, Between White and the Sev- reasoning, lowed their and the White case v, DeVito, enth Circuit decided Bowers which Jackson cited? (7th Cir.1982). F.2d 616 Judge Posner Capoeman In Reed, opinions supra, wrote the in Bowers we af- and Jackson. summary judgment firmed in pris- he favor of Jackson noted that Jackson was clos- who, officials Capoeman’s cut er to Bowers than to White. He stated hair objection over his that he long wore it that in Bowers “the state officers did not religious purposes, for and in spite of his create merely but failed danger, to avert supporting citation to Eighth Circuit au- by negligently releasing from custody a thority. Capoeman, 754 F.2d at 1513. We dangerous lunatic who plain- then killed the noted that in addition the Eighth Circuit tiff’s decedent.” Jackson at 1204-05. In by Capoeman, case cited there were two Judge Bowers Posner noted the difference opinions other Circuit, from the Second all which would exist if placed the state of which were on the books at the time the person danger. He stated: Capoeman’s officials cut hair and all of If puts position state a man in a supported position. his We refused danger private persons from and then to follow these cases. We did not have a him, protect fails to it will not be heard case in point. our circuit on We stated that say that its role merely passive; make the determination the likeli- “[t]o [of it is as much an active tortfeasor as if it hood the Supreme Court or this circuit had thrown him pit. into a snake would have reached the same result Bowers, 686 F.2d at 618. supported cases which Capoeman], ex- we we, Would have followed the legal amine analysis employed by ... holding White, logic Judge and the courts had considered the [which issue] Posner’s comments in Bowers and Jack- compare it to the analysis being used at son? We believe most certainly we would that by time the Ninth Circuit in related have. In Ana, Escamilla v. City Santa factually different situations.” Id. at 796 F.2d 266 Cir.1986) we affirmed 1515. We then noted that various courts summary judgment in favor of offi- “applied had a number of legal different cers a section 1983 action where the prisoner standards to infringe- claims of police had been involved in a shootout a ment rights.” of free exercise Id. We bystander barroom and a had been killed cited a law review article which identified by stray bullet by fired suspect. We “at least seven different standards for ana- distinguished the Escamilla case from a lyzing prisoner free exercise claims.” Id. case in which the officers Capoeman “create or exac- contended that instead of cut- danger,” erbate the ting hair, Escamilla at prison his should officials picture they right. Creighton, Anderson v. See it back to take have tied identify Ricketts, him Vaughan wear- S.Ct. at they needed to claimed a “least He thus asserted F.2d at ing short hair. prison to accom- means” for restrictive compelled to this answer prisoner identification. purpose of

plish its County Diego, 791 F.2d Ward v. San of our circuit there outside We noted that stated: 1332. There we diversity” in standards which was a “wide [Capoeman places responsi- ... ] ap- applied various courts had been bility keeping abreast constitution- considering such how to deal with peals in developments squarely al in criminal law claims. Id. Within our circuit we prisoner on the shoulders of law offi- enforcement 294 Bradley, 590 F.2d cited Jones v. power cials. Given the of such officials Cir.1979), challenged in an inmate which liberty, over our and sometimes even prison denial of the use of the prison’s lives, placement respon- over our in our that Jones chapel. We commented sibility entirely proper. is Law enforce- that the had a had “concluded state circuit cognizant only ment officials must be placing in legitimate appropriate interest extends, authority of how their far rea- chapel use that were restrictions point authority at their also of the which security,” order and to maintain sonable time, however, ends. At the same dowe added), given had (emphasis and that we require most [Capoeman not read ] restric- ‘appropriate “no indication government legal kind officials the means” the least restrictive tions’ meant normally law scholarship associated with Capoeman contended. Id. at for which A professors and academicians. reason- appeared to be In view what 1515-16. all person standard adheres at able circuits, other conflicting authority from times. cut from our which case law circuit well as in con decided 1986. It Id. Ward was claim, concluded against Capoeman’s we strip Diego sidered a search at a San Coun clearly so estab- had not been that the law in ty jail facility had occurred 1981. which prison officials were not lished that had 1984 we We noted in Ward immunity. at 1516. qualified Id. entitled Ackerman, 746 v. F.2d decided Giles present incident in At time of the denied, (9th Cir.1984), cert. U.S. case, previously cases Seventh Circuit (1985) L.Ed.2d 479 S.Ct. sup- These cases noted been decided. had strip searches which “we established of the position. At the time port Wood’s for a minor offense are uncon of arrestees case, no other case had incident suspicion individualized stitutional absent such as rejected a section 1983 claim concealing carrying or arrestee is that such diversity” of no "wide There was Wood’s. suffering from a commu contraband or claims and had considered such cases which Ward, 1333. 791 F.2d at nicable disease.” differing had arrived at results. which Cf. were Obviously jail officials Ward And there 754 F.2d at 1515. Capoeman, decision when of the 1984 not aware Giles to indicate that nothing in our circuit plaintiff in 1981. strip they searched differently case have decided this we would “[p]re-1981 But stated in we Ward rejected or that we would have from White Tinetti, cases, including harb- strip search analysis in and Judge Bowers Posner’s inged Ward our decision Giles....” dis- Capoeman at 1515-16 Jackson. Cf. Wittke, 479 1333, referring to Tinetti Bradley, 590 F.2d cussing Jones Wis.1979), (E.D. aff'd, F.Supp. 486, 490-91 clearly that it was established We conclude (7th Cir.1980). The same 620 F.2d 160 al- 1984 that Ostrander’s September cases, including Pre-1984 true here. her liber- leged of Wood violated treatment in this case. White, harbinged decision our personal security under the ty interest if establishes at that Wood We conclude amendment. We next consider fourteenth sup- has stated in she the facts which Ostrander, trial as a rea- action, and section officer, port of her police should have known sonable stage accept as true at this we must established constitutional of this — (1989) case, quali- Harris, U.S. -, Ostrander will not be entitled to and Canton v. (1989). A 103 L.Ed.2d 412 immunity. fied reasonable officer alleges as Wood Ostrander acted who acted (initial) The basic issue to be addressed in understood that what he was should have arguably this case is whether Ostrander doing right Wood’s constitutional violated rights liberty violated Wood’s under the unjustified free from an intrusion into to be component substantive of the Due Process personal security in her violation her majority Clause. The concludes as liberty interest under the fourteenth a matter law that: Creighton, amendment. See Anderson v. Bell, The fact that Ostrander arrested Rockford, White car, impounded apparently his (Tone, J., concurring). F.2d at 384-85 & 387 high-crime stranded Wood in a area at distinguishes 2:30 a.m. Wood from the CONCLUSION general public triggers police to afford her some measure of sum, genuine Wood has raised a factu- peace safety. See v. Rock- dispute regarding whether Ostrander de- al (and ford, 592 F.2d at 384 and n. 6 au- liberty protected by prived her of a interest therein). thorities cited See also Cham- by affirmatively placing the Constitution Co., King bers-Castenes v. 100 Wash.2d danger abandoning in and then her. If her 275, (1983); (policy 669 P.2d 451 ... did, he Ostrander acted as Wood claims respond requests state to to for assist- is not entitled to the defense of Ostrander judicious manner).1 in ance courteous and qualified immunity. Accordingly, grant summary judgment in favor of the Ergo, concludes, majority opinion “We defendant Ostrander is reversed. We also presented gen- are satisfied that Wood has summary judgment in favor reverse the uine issues of material fact on the Ostrander, Mrs. for the reasons stated in deprived of whether Ostrander her of a summary judg- supra. footnote liberty protected by interest the Constitu- Maloney ment in of Neil and his favor wife Ingraham Wright, tion. supra: See v. is affirmed. Haygood Younger, v. 769 F.2d at 1356.” I agree do not with this conclusion for the PART, AFFIRMED IN IN REVERSED stated in this dissent. reasons PART, REMANDED to the district issues, assuming The first of proceedings further two other court for consistent required the Due opinion. Process Clause the State with this protect to Wood from her assail- unknown CARROLL, ant, Judge, dissenting: District concerns whether Ostrander has the requisite state of mind to make out a due disagree opinion I with the amended is process opinion violation. The amended following rehearing. sued The reasons ex post Canton —that “Wood has concludes— raised a pressed my prior in dissent remain as stat genuine tending issue of fact Ostrander, ined Wood v. 851 F.2d Trooper that show Ostrander acted with (9th Cir.1988) supplemented by 1220 and as deliberate indifference to Wood’s interest qualified immunity further review personal security under the fourteenth prompted issue. Additional concerns are Citing Ledbetter, amendment.” Taylor v. opinions two of the United States Su (11th Cir.1987)(en banc). 818 F.2d preme Court issued since this matter was reargued 23,1988, DeShaney granted on November Taylor, Certiorari has been — Winnebago Cty. Dept., argued opinion Soc. Servs. the case has been and an -, any agree U.S. 103 L.Ed.2d 249 can issue at time.2 IWhile impose liability 1. I do not understand the relevance of this State neither would it serve to on the properly troop- opinion appeal. state for its failure to train state Court to issues in this The fact policy. ers to effectuate that Washington policy the State of has a assistance, etc., give officers should Supreme Taylor may 2. The Court’s decision in passengers motorists and their would not make "special relationship” further refine .the situa- violation; policy violation of that a section 1983 "involuntarily placed tions to include children Due Process appropriate Amendment’s is the Fourteenth indifference” “deliberate record, Clause. con- standard, I believe that most favorable manner in a strued hand, like the case at in- DeShaney, a dis- to show

Wood, does “tend[] rather than the volved the “substantive amounting to de- safety regard for Wood’s component process of the due procedural indifference.” liberate clause”: and his mother [DeShaney] Joshua Ostrander The last issue whether brought action under U.S.C. immunity defense. qualified to a entitled District in the United States concludes, § af-

Again, majority District of Wiscon- Court for the Eastern analysis: studied ter respondents Winnebago against sin at trial if establishes Wood [T]hat Department of Servic- County, its Social her support stated facts she has es, Depart- employees of the and various action, which we must section 1983 complaint alleged that re- ment. The case, stage of the at accept as true deprived Joshua of his spondents had qualified entitled to not be will Ostrander law, in process of liberty without due police officer immunity. A reasonable rights Four- of his under the violation alleges Ostrander acted as Wood who Amendment, failing to inter- teenth that what understood should have acted against a risk of protect him vene constitu doing Wood’s he violated at his hands violence father’s unjustified free from an right to be tional they knew or have known. should security personal her into intrusion S.Ct., at 1002. liberty under the her interest violation Supreme explained Court See Anderson amendment. fourteenth DeShaney: S.Ct., granted certiorari Creighton, F.2d, 384-85 & 387 approaches Rochford, Because inconsistent J., concurring). determining (Tone, courts in by the lower taken when, ever, or if the failure of a state dissent, I do detailed reasons For entity agents or governmental its local 592 F.2d Rockford, agree that not pro adequate an individual with provide Cir.1979) “clearly established” 381 of a violation services constitutes tective to the substan- in 1984 with reference law process rights, see due the individual’s I do not this case. process due issue in tive Racine, F.2d 847 Archie of authority precedential that White believe (CA 1988) (en 1220-1223, n. and proposition that DeShaney, for the post cases), pending, banc) (collecting cert. indiffer- deliberate “acted with Ostrander 88-576, importance and the No. security personal interest to Wood’s ence and of state to the administration issue the fourteenth amendment.” under governments, .... local Id., DISCUSSION why it outlined Supreme Court first The un- 1983 Claim a Section I. Criteria obligat- “categorically is not is that a state Component der the Substantive of private vio- person from protect a ed” to Due Pro- Amendment’s Fourteenth lence: cess Clause the Due nothing language of in the But requires the State itself DeShaney Process Clause respectfully I submit life, property liberty, and protect controlling authority to determine now the by private against invasion of citizens for determin- its the relevant criteria are what limi- phrased as a The Clause is actors. 1983 claim is stated ing a section whether act, as power to on the State’s component of the tation the substantive under protection Amendment tending being “analogous Fourteenth to a in a foster home" passengers where penal rights a child con- in a vehicle prisoner in a to adult institution facility.” F.2d at fined in a mental health is arrested. driver than ex- is a far different situation 797. This guarantee minimal hands, certain levels of and specifically proclaimed by word safety security. It forbids the State deed its protect intention to him deprive life, itself to individuals liber- against danger.” Petitioners then ar- ty, property process or ‘due without gued that “Its failure to [the dis- State’s] law,’ language but its cannot fairly be charge duty, ... was an abuse of impose extended to an affirmative obli- governmental power, that so ‘shocks the gation on the State to ensure that those conscience’, Rochin California, U.S. through interests do not come to harm 205, 209, S.Ct. [72 L.Ed. 183] other Nor history support means. does (1952), as to constitute a substantive due expansive reading such an of the consti- process violation.” text. counterpart tutional Like its in the Opinion (n. 4) observes that “The Amendment, Fifth the Due Process genesis of this special notion relation- [a Clause of the Fourteenth Amendment ship] appears to lie a statement in our prevent government was intended to opinion in California, Martinez v. 444 U.S. abusing power ‘from employing [its] (1980). 62 L.Ed.2d [100 oppression’.... as an 481] instrument Its In case, purpose decide, we was to were asked to protect people from alia, inter State, to ensure that the state officials could be State protected them from held liable each other. under the Due Process Clause of Framers were content to leave the the Fourteenth extent Amendment for the death governmental obligation in private latter citizen the hands parol- of a area to political pro- democratic ee. Rather than squarely confronting the cesses. question presented here—whether the Due Consistent with these principles, our Process imposed upon Clause the State an recognized cases have that the Due Pro- affirmative protect to- affirmed —we cess Clauses generally confer no affirma- the dismissal of the claim on the narrower right tive governmental aid, even ground that the causal connection between may where such aid be necessary to se- the state officials’ decision to release the life, liberty, cure or property interests of parolee prison from and the murder was government which the itself not de- too attenuated to ‘deprivation’ establish individual, prive the [citations omitted] of rights within the meaning If ... the Due Process Clause does not 1983.” § require provide State its citizens (n. 4) same footnote the Court particular with protective services, it fol- commented that several Courts of Appeal lows that the State cannot be held liable have read the statement in Martinez: under the injuries for Clause that could parole board was not [T]he aware that have been averted had it chosen pro- to them, appellants’ decedent, distinguished vide As [footnote a omitted]. from public the large, any spe- faced general matter, then, we conclude that a danger. cial We need not and do protect State’s failure not an to individual parole decide that a against private officer could simply violence never does not be to ‘deprive’ constitute deemed by a violation of someone of the Due life Process action taken Clause. in connection with the re- prisoner lease of a parole. S.Ct., at 1008-04. implying “as the State The once learns Court went toon discuss Petitioners’ party poses that a third special a danger contention “duty” provide that a to to “ade- an quate protective identified victim and services” indicates its arises will- out of “ ‘special ingness protect to relationships’ against the victim created or dan- assumed by the ger, ‘special State a respect particular relationship’ with to arises indi- between victim, viduals.” argued State and giving Petitioners that such rise to an affirma- “special duty, relationship” existed in tive DeSkaney through enforceable the Due “because the State Clause, knew that Process Joshua faced to adequate protec- render special danger of abuse at his father’s tion.” The DeShaney opinion makes it (1982), 73 L.Ed.2d of Martinez construction clear DeShaney said: Court the overbroad. analysis simply Estelle-Youngberg The peti- flatly rejected Court Supreme The applicability present in the case. no has impli- DeShaney and in arguments tioners concede that harms Josh- the Petitioners relying on opinions Court edly the Circuit he not occur while was suffered did ua (Balistreri v. arguments. similar Pacifica he was in custody, while State’s but the (CA9 F.2d 1425-26 Dept., Police father, custody of his natural who the case), one relationship was 1988), (a special actor, in no sense a state [footnote referenced opinions Court Circuit of the the have While State its omitted]. cited Supreme The Court regard). dangers that Joshua aware been is “that why it to illustrate opinions prior world, played part no in the free it faced Constitu- the limited certain circumstances creation, it render him nor did their affirmative State upon the imposes tion That the respect any more to them. vulnerable protection care and duties custody of temporary individuals,” i.e., “adequate once took State particular to analysis, for prisoners;” alter the does not Joshua to incarcerated care medical mental father’s cus- it returned him to his “involuntarily committed when to services position to ensure him in no necessary tody, placed worse are ... as patients have been from themselves he would safety’ than that in which ‘reasonable their suspects all; to does others,” “medical care acted at State had it not injured of an guarantor custody permanent who have been become police.” having once of- apprehended safety being individual’s while circum- Under these noted: him shelter. then fered Court The stances, had no the State no petitioners afford But these cases protect Joshua. duty to only stand together, they help. Taken the State that when proposition Id. holds custody and into its person takes a the State’s Here, never in Wood will, his Constitu- against him there Wood from whom person custody. corresponding upon it a imposes tion raped allegedly who accepted ride for his responsibility duty to assume Assuming the state actor. not a her was well-being. general safety and dangers speculative was aware State goes on to S.Ct., Court alleged any her or of Wood faced in- money, or the concerning hold: circumstances up, or the protect pick arises her anyone to ability to call The affirmative played walk, knowledge of State from the State’s she had distance did the ex- Neither or from its creation. predicament part in their no individual’s him, any from than help more vulnerable of intent render her pressions State public in that imposed general on his it has member of the limitation which other about, standing by walking area, own behalf. on his [Cita- freedom act from road, going due to or In the substantive side of the tion omitted]. estab- affirma- business nearby it is the State’s 24-hour analysis, of the process one restraining the individual’s of lishments. tive act is liberty personal to of

freedom —which the did not become patently The State the liberty’ triggering of ‘deprivation the it arrest- safety when guarantor Wood’s Clause, Due the Process protections car which driver the the drunken ed liberty protect his to to act not its failure any reasonable could How riding. she was by other against harm inflicted interests escorting not that in aware police officer be means. she a location home, taking her to or Wood Id., “constitu- violating 109 S.Ct. at her requested, he was unjustified free from an right be Gamble, to tional of Estelle its discussion After security viola- personal into her intrusion 285, 97, 50 L.Ed.2d 429 U.S. four- the liberty interest under her Romeo, tion 457 U.S. Youngberg v. (1976) and teenth amendment.” This proposition is rest danger, creates the actionable under the most of claimed “special attenuated section from situation where dan relationships,” pass and cannot ger constitu- acted); existed before defendant see tional muster. Consistent with DeShaney, also DeShaney v. Winnebago Cty. Soc. — the State duty owed no constitutional to Dept., U.S. -, Servs. Wood. (1989), L.Ed.2d [103 distin 249] guishing state,‘played situation where no Opinion The rely Amended continues to part’ in creating dangers the that minor Rockford, White v. 592 F.2d child by remaining faced in his father’s (7th Cir.1979), after DeShaney. Thus custody ‘nor did anything do [the state] is cited for the proposition that to render any more [the vulnerable “gross negligence child] disregard reckless them’). to safety cognizable of others” is under 1983; section as well as supporting the The quotes limited from DeShaney were majority’s conclusion “that hav- Ostrander not opinion. decisive to that readily This is ing Bell, impounded car, arrested his and apparent when it is recalled the State apparently high-crime stranded Wood in a had in custody fact taken of the child and area at distinguishes 2:30 a.m. from Wood thereafter “returned him to his father’s general public triggers duty custody,” having knowledge while to afford her some measure of Nonetheless, father’s abusive character. peace safety.” This proposi- latter the Supreme Court found these cir- special tion—a relationship contention—is cumstances were not “sufficiently analo- totally inconsistent legal with the principles gous to incarceration or institutionalization enunciated so in DeShaney. give rise to an pro- affirmative S.Ct., tect.” n. 9.

Justice recognizes Brennan ma- jority opinion in DeShaney contrary repeat, To the State did create the Thus, White.3 he states dangers, his dissent: were, unknown they whatever

Cases Wood faced when from the she decided to recog lower courts ac- also cept a nize that ride from stranger State’s actions can be rather than decisive assessing choose one of the other signifi options that constitutional were cance of inaction. For available to her.4 purposes, these moreover, physical actual restraint statement Opinion, Amended only State action that has been con 6,n. that it “does not foreclose Wood from See, sidered e.g., relevant. White v. attempting to show at trial a violation [as (CA7 Rochford, 1979) 592 F.2d 381 (po of a right to substantive due lice process when, violated officers due process] that Ostrander’s treatment of her arresting after guardian ” of three was such that it conscience,’ ‘shocks the young children, they abandoned chil appears to plain offend the holding of De- dren busy on a stretch of highway at wherein Shaney, rejected argu a similar night). ment. Comment, See also Substantive S.Ct., at 1008. Due Process Analyses Non-legislative Action, Opinion’s State A only Amended Case Brig.Yg. reference Study, to DeShaney is as In discussing follows: L.Rev. 347. White v. Rock ford, study case under

Wood has writer raised a triable issue of fact as — the —the anticipated DeShaney he when concludes: Ostrander’s ‘affirma- conduct tively placed plaintiff in a position of Rochin not a pro- substantive due danger.’ Ketchum, 811 F.2d at cess case at all. Its rationale hold- See Joliet, Jackson v. ing 715 F.2d at strictly dealt procedural with the 1204 (distinguishing situation guarantees where ar- clause; process the due 3. Justice Brennan also cited White in his dis- 4. The area where companion Wood's was arrest- senting (n. opinion 3) Cannon, in Davidson v. well-lighted thoroughfare ed is a in a commer- 344, 668, 674, 474 U.S. 106 S.Ct. 88 L.Ed.2d 677 cial district. Two retail in the businesses imme- (1986). vicinity open lighted. diate were female, test to which the Wood was an adult admittedly

‘shocks the conscience’ gave nothing had independent birth able to exercise the judg- Rochin decision defining an inde- ordinary to do with ment of an adult. She whatsoever was left right, absolute as the Court pendent walking open within distance of two busi- apparently assumed. The liber- in she help. nesses where could seek liberty at stake in was interest Rochin ty affirmatively this case the State had not sense. It an interest in its classical was protecting committed itself to this class restraint, physical from a in freedom persons. The state at the time of the deprived in that case as a result freedom guidelines requiring indictment had no incarceration. criminal conviction and safekeeping passengers of arres- opinion simply ad- The Rochin case, tees. In this it cannot said be question of whether the dressed to the plight. state knew Wood’s This is by methods sat- conviction was obtained type not the of case where the state had process of law.’ isfying ‘due knowledge particular of a madman who Id., likely prey plain- on Wood. The alleges particular tiff that this area is a Mind” to Requisite The II. —“State high-crime troop- area. To hold that the Process Violation make out a Due duty protection er had a on that basis in an ar- opinion asserts The amended create would be to an affirmative consti- gross if “reckless or guendo fashion that essence, in protection, tutional sufficient to state a sec- negligence” is not public a as whole. This court de- origi- concluded tion 1983 claim—as clines to do so. Ostrander was unaware on dictum Ketchum v. opinion, nal based money of whether or not she had avail- Alameda, F.2d 1243 County of Thus, help. assuming even able to seek Cir.1987) genu- a “Wood has raised —then 1984, through officer in some that an tending of fact to show ine issue analysis, could foresee the crystal ball in- acted with deliberate Trooper Ostrander analytical approach suggested by the personal interest difference to Wood’s 1986, special Ninth a relation- Circuit security under the fourteenth amendment.” ship At the time of the was not created. explicate how it is does did incident Ostrander’s conduct not vio- of Wood’s version that the character clearly established constitutional late a rehearing from changed has after case qualified right. Ostrander is entitled negligence” to gross “reckless or “deliber- damages. immunity from suit for civil ate indifference.” (ER 54, 9). p. qualified immunity out- standard Qualified Immunity III. Fitzgerald, 457 U.S. lined Harlow unnecessary to consider I believe it is (1982), en- 73 L.Ed.2d qualified Ostrander is entitled to immunity long public official to so titles a defense, given that the Due Pro- immunity clearly estab- his actions do not violate require the State to cess Claim does right statutory lished her unknown assailant. protect Wood from person would about which a reasonable DeShaney, Id. have known. purposes that Assuming for discussion consequence is a matter of This defense issue, I DeShaney does not moot govern- every level of public officials at District Court’s determi- would affirm the their them to exercise ment. It allows relationship” was not “special nation that claimed in situations where discretion between in a constitutional sense created established, rights have not been under the circum- and Ms. Wood the State independence and act without and to “with early morning present during the stances Ray, consequences.” Pierson v. fear of 23, 1984, and the Dis- September hours of 1213, 1218, 386 U.S. that Os- further conclusion trict Court’s (1967). qualified immunity: L.Ed.2d was entitled to trander 602 Qualified immunity is an entitlement not established upon law” damage a

to stand trial under certain circumstances claim can rest: or to be burdened with broad reaching and operation standard, of this how costly pretrial discovery. Mitchell For ever, depends substantially upon the lev 511, syth, 2806, 472 105 U.S. S.Ct. 86 el of generality at which the relevant (1985): L.Ed.2d 411 ‘legal rule’ is to be identified. For exam

“The is an immunity entitlement ple, right from process due of law is suit mere rather than a defense to quite liabili- clearly by the Due established Pro ty; immunity, an absolute like it is Clause, cess and thus there is a sense if effectively lost a case is erroneously which any action that violates that permitted go to trial.” (no 472 U.S. at Clause matter how it may unclear be 526, 105 at 2815. S.Ct. particular that the violation) action is a violates clearly right. established Resolution of this encouraged issue is Much the same could be said of any summary judgment; denial of the de- other constitutional or statutory viola fense, to the extent it turns on an issue of tion. But if the ‘clearly test of law, estab may a final decision which be re- lished law’ applied were to be at this viewed of an way interlocutory appeal. level of generality, it would bear no Id., 530, rela at 105 Qualified S.Ct. at 2817. tionship to the ‘objective legal reason immunity specific is a fact determination. ableness’ that is the touchstone Har “important question” This was revisited low. Plaintiffs would be able to convert Creighton, 635, Anderson v. 483 U.S. qualified the rule of immunity that our 3034, 3038, (1987). 97 L.Ed.2d 523 plainly cases establish into a rule of vir Appeals Anderson the Court of for the tually unqualified liability simply by Eighth Circuit had determined that a alleging violation of extremely abstract officer was not entitled to summary judg- rights. Harlow would be transformed qualified ment on immunity grounds, guarantee from a immunity into a rule right alleged “since the to have [he] pleading. sum, Such an approach, in right persons violated—the pro- be destroy would ‘the balance that our cases tected from warrantless of their searches strike between the interests vindica homes unless searching officers have tion of citizens’ rights probable cause and there exigent are cir- public officials’ performance effective cumstances—was established.” Id. duties,’ of their by making impossible it Scalia, writing Justice for the majority in for officials ‘reasonably anticipate [to] Anderson, giving after an overview the their when give conduct rise to lia breadth qualified defense, immunity bility damages.’ Davis, U.S., at e.g., “protects ‘all plainly but the incom- 195, S.Ct., at [footnote, omit petent or who knowingly those violate the It should surprising, not be ted]. there ” law,’ concluded: fore, that our cases establish that Somewhat concretely, more whether an right the alleged official is to have violat protected by qualified official immunity ed must ‘clearly have been established’ in may be personally held liable for an al- particularized, more and hence more legedly unlawful official action generally relevant, sense: The contours of the ‘objective turns on legal reasonable- right must be sufficiently clear that a ness’ Harlow, U.S., of the action. at reasonable official would understand 819, S.Ct., 2739, at light assessed doing what he is right. violates that legal of rules that were ‘clearly es- This say is not to that an official action is at taken, id., tablished’ the time it was at protected by qualified immunity unless S.Ct., at 2738. very action in previous has S.Ct., at 3038. ly unlawful, been held Mitchell, see goes explain Anderson on to why U.S., n. n. claimed general violation a broad consti- it is say that in light tutional principle is not the kind “clearly preexisting law the unlawfulness must immunity standard considers See, The e.g., Malley, supra, apparent. be 344-345, law enforcement a reasonable [335], at 475 U.S. 271]; Mitch case as L.Ed.2d officer should view the White [1092],at [1098] [89 S.Ct., U.S., at ell, controlling. element of rea- supra, 472 at Given this U.S., Davis, at supra, sonableness, qualified immunity re- the S.Ct., 1019. at clearly law should gime of established section 1983 defen- not be held to allow Id., 3038-39. at interpose lawyerly distinctions dants to Diego, County San v.Ward in defy common sense order to dis- that Cir.1986), dis (9th this Court F.2d 1329 tinguish away clearly established law ... and immunity defense qualified the cussed Capoe not the law- and is left to wonder who—if application under Harlow One its Cir.1985): (9th po- Reed, speak for reasonable yers 754 F.2d these man —will a attempting persuade in to lice officers places Capoeman that first note We a is proposition court whether keeping abreast of responsibility for clearly in criminal established law. developments of law on the shoulders squarely law analysis, must be con- In the final White power Given enforcement officials. might under- totality, as it be sidered its liberty, and our over of such officials officer, police and by a stood reasonable lives, place- over our sometimes even submit, opinion not, majority has I as the entirely proper. responsibility ment done, excerpting words from seven cogni- must be enforcement officials Law Judge judge opinion one lead White authority far their only of how zant not par- from the and eleven Sprecher words extends, point at which also of the but (“I opinion Judge Tone concurring tially time, the same authority ends. At their respects, not in all agree part, to however, Capoeman do not read we for reversal Judge Sprecher’s reasons officials the government require of most defen- police to officer judgment as scholarship normally associ- legal kind of stating separately dants, therefore and am and academi- professors ated with law concurring in that action.” for my reasons standard ad- person A reasonable cians. 386). required Id., is also at Consideration all times. heres at dissenting opinion Kilkenny’s Judge F.2d, at 1332. imagination, (“The by implication, majority, 23, 1984, v. Rock- September White finds picture On which paints a or otherwise Cir.1979), was ford, 592 F.2d 381 The do not record. cases support in the no jurispru- in American only 392). case all Id., one and It is evident facts.” fit our inferentially an holding judgments dence variety there are a —that —even passen- a arresting officer owed af- could police officer reasonable reach a an (children) “to conduct in a car gers opinions. reviewing these three ter the children’s a manner that such arrest majority here believe that the The fact in- security personal interest a to find sense defies common that “It 388). (concurring opinion, Id. fringed.” dan legal distinction between meaningful is what question to answered The first be busy high crossing a facing children gers expressed in legal were White rules alone to fend left way and a woman by that “clearly they established” were area,” high crime at 2:30 a.m. in herself police officer that a reasonable so opinion reasonable require does not “ ‘law understand that would read after so concluded would have officer ” took. he actions’ proscribed might uncertain well be ing White—he Anderson, 3038. 107 S.Ct. at and con of the lead rationale whether the only to children curring opinions extended here majority opinion admonishes passengers.5 any passengers, or that: officers enforcement correctly duties law decid- tween that agree I do not believe, however, an adult when to minor children owe I ed on a constitutional basis. they are car in which they driver legal arrest the meaningful be- distinctions there are Judge Sprecher’s opinion was obviously should they expected be analyze prompted by the fact that passengers parse (that an of) they never heard were minor children deprived utilizing who had been legal skills and reasoning of protection appellate judge. adult an their custodian. It would unduly extend this dissent to in- opinions prior that cited White corporate Judge Sprecher’s extensive state- September 1984, distinguished either the regard, ments in or to include his ref- case from being (Williams the one decided erences to state concerning statutes duties Boston, City v. F.Supp. 363, 599 367 by persons owed minor children responsible (D.Mass.1984)) (No liability for a student for custody. their Suffice it to say that his injured at game a football in scheduled a presented statement of the issue appeal on high crime area. The held the plain Court illustrates what his concerns were: tiff “was more no foreseeable victim of presented by

The issue harm any person case is than other in attendance police may, game officers at the Furthermore, with consti- football ... as in Martinez, impunity, tutional abandon the children causal and connection between plaintiff’s leave in defendants’ acts and health-endangering them inju situa- ry is too tenuous having impose tions after arrested their 1983 custodi- liabili § ty.”); proposition cited it for the gross an thereby deprived and them of adult or reckless protection. conduct in a situation they not, We hold that would simple negligence otherwise be and was accordingly, we reverse the district sufficient claim, to state a (e.g., 1983 § court’s of a complaint dismissal alleging City Means v. Chicago, F.Supp. 535 455 such facts and remand for trial. (N.D.Ill.1982)); or that mental or emotional F.2d, 592 at 382. distress may compensable be under § Although Judge Tone did concur in (James v. Bd. Sch. Com’rs Mobile respects all Judge Sprecher’s reasons Ala., County, F.Supp. 705, 484 (S.D. 714 reversal, his concurring opinion could Ala.1979). also other See cites: Coyne v. justifiably police cause a reasonable officer Boeckmann, 511 F.Supp. 667, (E.D. 669 to believe the minor children’s custodi- Wis.1981) (coerced from a confession 17 al status controlling a principle in the old); yr. Prevost, Seide v. 536 F.Supp. case: (S.D.N.Y.1982) (state responsi In the case bar the in children bility for committed and uncommitted dis federally protected car had a right to be persons); turbed Wind, Larson v. free unjustified from the intrusions on F.Supp. (N.D.Ill.1982) (medical assist personal their security by police. person police ance for custody); Arko v. personal Their security was under the Broom, F.Supp. (D.Colo.1981) (po protection their protec- uncle. If that lice exposed officers dangerous or ad tion was removed and no pro- alternative drugs); dictive Wedgeworth Harris, tection provided, they would be ex- F.Supp. (sexual 155 (W.D.Wis.1984) assault posed danger occupants of an im- by officer). a police mobilized on highspeed car expressway best, At “special is a relationship” White and to the cold. Arresting the uncle and dealing police with a officer and mi- case— removing thus protection, their yet and nor children in an unusual situation. The leaving exposed the children to these Seventh recognized Circuit fact hazards, unjustified was an intrusion on Racine, Ellsworth 774 F.2d personal children’s security. (7th Cir.1985), when noted: Id., at 387. “Indeed, have we held that: constitu Just police as the officers are not held to tion duty part creates police legal scholars, standards of neither protect officers to minor children from riding. I dangers also believe that facing injury to her control. The which she claims to the minor children in White were immediate have could any suffered have occurred wom- apparent, any dangers facing whereas accepting an stranger a ride any from a hour Wood speculative, conjectural were subject day any community. by implication, imagina- majority, officers after immediate hazards tion, guardians. paints portrait or otherwise children’s arrest the support finds no the record. The Rochford,,....” cited do not fit our facts. cases These per- statement Ellsworth further One governmental cases involve state or tinent: particular agency action directed at a constitutes a of what “The contours person agency whom the or officer has a munici- relationship’ between ‘special custody into either taken over whom officials, through and its acting its pality, they responsibility. have asserted No- indistinct. We hazy are citizens majority up face to the where does concept clarity to the tried to lend have I distinction which make as to the presented by the facts faced with when uncle, arrested, to the once and the owed Id., cases.” at 185. individual against absence of to the children in the occurred when That is what White whom no action was taken. in presented the facts Court considered anyone fairly Id., case. Could that individual at 392. court would have that the

conclude White Judge Kilkenny also foresaw the DeSha- if violation same “constitutional” found the holding authority he ney when said “[n]o left sit- passenger Wood had been Ms. majority by cited either member of the Chicago Skyway, on the ting in the car place of the offi- which would the actions I submit the minor children? rather than in cers in the instant case violation of the not. aspect of the Due Process second Clause’s i.e., in this White ‘shocks the protection, The Precedential that their action Effect just way Circuit This is conscience.’ wishful reme- attempting to create a constitutional I re- reach light In of the conclusions Id., dy none exists.” at 393. where DeShaney and the fact White garding “clearly identify a established” does not this court would have Capoeman Under right allegedly by violated comment in 1980 considered the review law Ostrander, necessary to address it is not in Brig.Yg.L.Rev. referenced earlier opinion’s conclusion that “it majority conclusion, my The Comment’s dissent. Ninth likely September, 1984 the in was Misstep,” is “A captioned Constitutional result have come to the same Circuit would insightful: particularly Circuit did as the Seventh White.” the Seventh Cir Rochford, v.White understand, however, how the I do not offending po cuit’s conclusion that this conclusion majority opinion reaches deprived plaintiff chil liceman had expressed addressing concerns without rights seem to fol dren of constitutional (592 Judge Kilkenny in his dissent. impulses closely than emotional more low 388-395). F.2d, say I this not because acceptable principles of due it follows long Ninth Judge Kilkenny is a time Circuit gave only analysis. The court process thoughtful of his Judge, but rather because appropriate incomplete reference to case opinions, as well critique of the other two law, refused to consider even the rele it opinions relied on analysis of as his procedural questions, and vance of Tone: Judges Sprecher and special relevance that failed to note the by appellants cited “The authorities Supreme decision the recent Court way they In no do of mark. are wide gave to the avail Ingraham Wright principal claims that support appellants’ causes of action ability independent deprived of their constitutional they were doing, the court under Illinois law. In so rights liberty, non-interference with pur perhaps if successfully, even to travel family affairs freedom balancing that has posefully, avoided Id., commerce.” at 397. interstate pro due commonly used to resolve been nonlegislative between is- cess conflicts respect “liberty” to the interest With protect- constitutionally sue, action and Judge Kilkenny observed: state ed, fundamental, personal Otherwise, less than I will leave for others to ulti- interests. mately decide majority correct- ly White “clearly concludes that estab- White uniquely decision’s substan- lished” law and that it would have been approach tive the due process issue followed in suggest I only attempt to Circuit evidences an arrive at a contrary to the Ca- ‘just’ appellate proposition. result on the based each poeman independent court’s evaluation of the of- took a cautious view a situation alleged judicial ficers’ actions. The final where opinions several had circuits issued product blatantly is one that is inconsist- point on the appropriately issue—and Supreme policy ent Court with evident found that there uncertainty as to process that the due clause is not a valid what would have been done in the Ninth general liability. source of federal tort Circuit. To take contrary position on the good If the Seventh Circuit had reasons basis one particularly of —and policy, to circumvent this it could have uncertainty of White—would effective- effectively. masked its efforts more ly qualified void the immunity defense for holding in could have been at least public officials and it would become but a reasoned, more even if more barmecidal only doctrine. Not would a based, solidly it been decided on had public official in the Ninth Circuit be grounds procedural insufficiency in charged knowledge with of Ninth Circuit actions. officers' precedent, charged but would be process analysis Substantive due has knowledge of cases in opinions cited disappeared judicial from decision were cited in opinions.6 Ninth Circuit making, trend, which should con tinue, carefully has been to limit its Conclusion scope. adopt Courts that are inclined to purely approach substantive toward no- Washington State of holds its nregulatory types of state action similar responsible officers for actions of type challenged White should first alleged in this case. appropriate It was for rights insure that the involved are within the state to make that decision. State tort scope of ‘fundamentals’ that find sol law is the arena develop within which to specific id root in language procedures an officer should follow or values. The Seventh Circuit’s failure deciding whether to offer assistance to a to do so in White Rochford resulted in passenger and how that assistance should an obviously analysis, superficial want provided. then requires be It presci- little ing procedural for necessary considera ence to anticipate the disputes kind of tions and balance. generated will be in these instances con- Brig.Yg.L.Rev., 374-75. cerning officer; what was told mode of dress; forecasts; weather the crime rate at deciding this circuit would environs; the arrest scene and where the in White have followed one must look passenger wanted transported, to be etc. opinions Supreme of the United States DeShaney Like and (Judge Kilken- they today. Court as I exist know of no dissent), ny’s undoubtedly will officers be case that holds a state official liable for charges arrest, faced with of false conduct sexual violative of the constitution when harassment and longer they as attempt occurred but no assaults violative at the White, meet being imposed time the decision whatever are made. burdens on them in whatever its status does not sur- regulations absence state DeShaney precedential spelling vive authority procedures out to be followed. special relationship duty. a claimed problems Those are not to be addressed 23, 1988). 6. White was first cited in this Circuit in Interestingly, Balistr Balistreri does not cite Dept., eri v. Cir.1988) (submitted Wood, Police 855 F.2d 1421 originally July which was decided Pacifica argument without August March 1988 and the issued of the Four- Process Clause the Due under Amendment.

teenth KANEKOA; E. Warren K.

Charles

Kanekoa, Plaintiffs-Appellants, HONOLULU; OF AND COUNTY

CITY Gibb,

Douglas G.

Defendants-Appellees, Hawaii,

State

Defendant/Intervenor-Appellee. MELEMAI, Plaintiff-Appellant,

Damien HONOLULU; OF AND COUNTY

CITY Gibb,

Douglas G.

Defendants-Appellees. 87-2636, 87-2844.

Nos. Appeals, States Court

United

Ninth Circuit. Aug.

Argued and Submitted 29, 1989.

Decided June

Case Details

Case Name: Linda K. Wood v. Steven C. Ostrander Neil Maloney

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 27, 1989

Citation: 879 F.2d 583

Docket Number: 87-3924

Court Abbreviation: 9th Cir.