Henri Morais and Claudette Morais v. Mark Yee, et al.
No. 93-100
Supreme Court of Vermont
July 15, 1994
[648 A.2d 405]
Present: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
Accordingly, we hold that there is a reasonable basis from which to infer authority for the Secretary to delegate the power to issue § 401 certifications to the Commissioner of Environmental Conservation. Therefore, the certificate issued to appellee OMYA was not void because it was signed by the Commissioner.
Reversed and remanded.
Opinion Filed July 15, 1994
John A. Serafino and Allan R. Keyes of Ryan Smith & Carbine, Ltd., Rutland, for Defendants-Appellees Yee, Tupper, Vermont State Police, Department of Public Safety, and the State of Vermont.
David A. Barra of Hill, Unsworth, Barra & Myers, Essex Junction, for Defendants-Appellees LaPointe and Town of Pittsburg, New Hampshire.
Allen, C.J. Plaintiffs Henri and Claudette Morais appeal the summary judgment granted to defendants in an action alleging
On the evening of September 9, 1989, defendant Richard LaPointe, Chief of Police in the Town of Pittsburg, New Hampshire, received a report of an accident involving a single motorcycle with two passengers, one of whom was injured. LaPointe was told the incident occurred on Old Canaan Road, but he was unsure whether the accident had occurred in New Hampshire or Vermont. He searched the New Hampshire portion of the road for accident victims, but found only some glass at one spot on the road. LaPointe was continuing his search on Route 3 when he passed a motorcycle headed south toward the Vermont border. The front wheel of the motorcycle was wobbling and the rider was not wearing eye protection as required under New Hampshire law.1 Believing this to be the vehicle involved in the accident, LaPointe motioned the rider, Denis Morais, to stop. Plaintiffs assert that LaPointe knew Morais, and offered evidence that the name “Morais” appeared in inch-high letters on the side of the motorcycle‘s gas tanks. When Morais did not heed LaPointe‘s direction to stop, LaPointe turned on his lights and siren and pursued him across the bridge into Canaan, Vermont.
Once in Vermont, defendant Mark Yee, a Vermont State Police trooper, joined in the chase by pulling his car between Morais and LaPointe. Plaintiffs assert that Yee also knew the Morais family, having spent considerable time in their local restaurant. Morais led Yee and LaPointe along Route 114, a two-lane road. Witnesses who saw the vehicles pass reported that the nearest cruiser was no more than five feet from Morais’ motorcycle, and that Yee and LaPointe were following Morais closely and at too great a speed for Morais to stop safely. Defendants maintain that they pursued Morais in a safe and reasonable manner. The chase continued for nearly twenty-five miles at speeds variously reported between forty and sixty miles per hour; the chase lasted approximately one-half hour.
At some point in the pursuit, defendant William Tupper, also a Vermont State Police trooper, had been notified, and he awaited the motorcade‘s approach. He positioned his cruiser ahead of Morais, straddling the center line of the road. Tupper drove more slowly than the advancing vehicles, in what he described as an attempt “to contain
Plaintiffs sought relief under
The trial court granted defendants summary judgment on the § 1983 claims against the State of Vermont, the Department of Public Safety, the Vermont State Police, and the individual defendants in their official capacities, none of which are “persons” subject to liability under § 1983. See Will v. Michigan Dep‘t of State Police, 491 U.S. 58, 71 (1989). The court also entered summary judgment for the Town of Pittsburg on the § 1983 claim, having determined that plaintiffs had failed to demonstrate constitutional rights violations which could serve as the basis of liability under a theory of respondeat superior. Finally, regarding the common-law negligence claims, the court determined that defendants LaPointe, Yee and Tupper were entitled to qualified immunity, and entered summary judgment accordingly.
Plaintiffs raise two issues on appeal. First, they contend that the trial court erred in ruling that Morais had not suffered violations of his Fourth and Fourteenth Amendment rights. Second, plaintiffs argue that issues of material fact should have prevented the trial court from finding that the individual defendants were entitled to qualified immunity from suit for alleged negligence.3
I.
Plaintiffs first argue that the trial court erred in granting defendants judgment on the § 1983 claims for alleged violations of Morais’ constitutional rights. Specifically, they contend that genuine issues of material fact exist as to whether police violated the decedent‘s Fourth Amendment right to freedom from unreasonable seizure, and his substantive due process rights under the Fourteenth Amendment. The Fourth Amendment provides, in relevant part, that “[t]he right of the people to be secure in their persons . . ., against unreasonable searches and seizures, shall not be violated.”
At the time of Morais’ death, the United States Supreme Court had recently considered the question of whether police pursuit qualifies as a Fourth Amendment seizure in Brower v. County of Inyo, 489 U.S. 593 (1989). In deciding whether the decedent had been seized when he collided with a police roadblock after a high-speed chase, the Court differentiated that situation, in which the police create circumstances intended to produce a stop by physical impact, from a significant show of authority intended to induce a voluntary stop. Id. at 598. The Court held that “a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual‘s freedom of movement . . . but only when there is a governmental termination of freedom of movement through means intentionally applied.” Id. at 596-97. A seizure requires “that a
The affidavits offered by defendants in this case uniformly deny that police vehicles came into any contact with Morais in the course of their pursuit. They also demonstrate the absence of any intention on the part of police to force Morais to leave the road and collide with the rock face. Plaintiffs challenge these affidavits with the affidavit of an accident reconstruction expert, who characterized the positioning of the three police cars just before Morais left the road as a “rolling roadblock.” After an initial investigation of the scene, the police reports and photographs, and the motorcycle, the expert offered a “preliminary opinion” that the motorcycle was damaged by an impact with an automobile.4
Plaintiffs may rely on affidavits of experts to defeat a summary judgment motion, but the affidavit still must meet the Rule 56(e) requirement that the nonmoving party present specific facts demonstrating a genuine issue for trial. Hayes v. Douglas Dynamics, Inc., 8 F.3d 88, 92 (1st Cir. 1993) (construing
Lacking any other basis to support their theory, plaintiffs have failed to raise a sufficient issue of material fact to support the claim that police seized Morais in violation of his Fourth Amendment rights. Absent a seizure, plaintiffs cannot recover under § 1983 as a matter of law, and defendants are entitled to summary judgment on the Fourth Amendment claim.5
Plaintiffs base their second § 1983 claim on an alleged violation of Morais’ rights under the Fourteenth Amendment, which provides, in relevant part, that no state shall “deprive any person of life, liberty, or property, without due process of law.”
In their initial memorandum in opposition to the summary judgment motion and two supplemental response memoranda, plaintiffs discussed the alleged due process violation in terms of allegedly unreasonable use of deadly force in seizing Morais, citing Tennessee v. Garner, 471 U.S. 1 (1985). As plaintiffs acknowledged, Garner dealt only with the question of the reasonableness of what undisputedly was a seizure under the Fourth Amendment. Id. at 7-9. The United
Plaintiffs have also claimed recovery under § 1983 against the Town of Pittsburg, New Hampshire, for an alleged failure to train LaPointe regarding the hazards of high-speed pursuits of suspects. Having concluded that plaintiffs have not demonstrated violations of Morais’ constitutional rights, we affirm summary judgment for the Town on the § 1983 claim.
II.
Plaintiffs also assert that genuine issues of material fact preclude a ruling that defendants LaPointe, Tupper and Yee are entitled to qualified immunity on the claims alleging gross negligence and recklessness. We agree that defendants should not have been granted summary judgment on the state law claims, but conclude that qualified immunity does not apply in this case. Qualified immunity is a judicially created doctrine that shelters state and municipal officials from suit for acts performed in the course of their duties. Murray, 155 Vt. at 626, 587 A.2d at 978; Libercent v. Aldrich, 149 Vt. 76, 80, 539 A.2d 981, 984 (1987). The doctrine reflects a sound compromise between compensating the injured and affording public officers such as police sufficient freedom to do their jobs. Murray, 155 Vt. at 626, 587 A.2d at 978. However, qualified immunity does not extend to situations in which the legislature establishes a clear duty and liability for a breach of that duty.
According to
Section 1015 applies to defendants Tupper and Yee, Vermont State Police officers. As police chief in a New Hampshire municipality, LaPointe is not a Vermont law enforcement officer, but he nevertheless is subject to § 1015. Under New Hampshire law, LaPointe could have conducted fresh pursuit if he reasonably believed that Morais had committed a felony by leaving the scene of an accident involving personal injury. See
It is uncontested that LaPointe received a report of an accident involving a single motorcycle and resulting in injury to one of the riders. Not long after, he saw Morais on a motorcycle with a wobbling front wheel and motioned to him to stop, but instead Morais sped away. On the undisputed facts concerning LaPointe‘s knowledge at the time pursuit commenced, we conclude that LaPointe reasonably believed that Morais had left the scene of an accident involving personal injury. In engaging in the pursuit in Vermont, LaPointe acted as a Vermont law enforcement officer. Therefore, LaPointe is subject to the requirement of
Summary judgment for defendants LaPointe, Tupper, Yee, and the Town of Pittsburg, New Hampshire on the claims of violations of constitutional rights is affirmed. Summary judgment for defendants LaPointe, Tupper, and Yee on the negligence claims is reversed, and the cause is remanded.
Johnson, J., concurring and dissenting. I dissent from Part I of the Court‘s opinion, which holds that, on the basis of the facts before the trial court on summary judgment, Denis Morais was not seized within the meaning of the Fourth Amendment to the United States Constitution. I concur with the Court‘s opinion in all other respects.
My disagreement is based upon the United State Supreme Court decision in Brower v. County of Inyo, 489 U.S. 593 (1989). In that case, an individual was killed when the stolen car he was driving at high speed crashed into a police roadblock. His heirs brought a claim under
The Court stated that a seizure results when “there is a governmental termination of freedom of movement through means intentionally applied.” Id. at 597. The intent required is not subjective, but objective. Thus, even if the police in Brower had “earnestly hoped,” id. at 598, that Brower would stop his vehicle before hitting the roadblock, the telling circumstance was that the design of the roadblock was such as to produce a collision if voluntary compliance did not occur. Id. The Court stated:
In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg. We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result. It was enough here . . . that . . . Brower was meant to be stopped by the physical obstacle of the roadblock—and that he was so stopped.
Id. at 598-99 (emphasis added).
The Brower decision sought to distinguish between two ends of a spectrum. On one end, the tractor-trailer roadblock unquestionably resulted in a seizure, even though no actual police contact with Brower occurred and even though Brower might have been able to stop his vehicle prior to the collision with the roadblock. On the opposite end, a mere show of authority, such as pursuit with flashing lights, does not effect a seizure under the Fourth Amendment unless there is physical contact, such as a police car coming into contact with a fleeing vehicle.
In the instant case, we have police conduct that is more than a pursuit with flashing lights, and less than a Brower-type roadblock. Plaintiffs term it a “rolling roadblock,” but whatever its proper name, it is police conduct that is significantly more restrictive than a mere display of authority. When Morais went off the road and crashed into
It seems obvious to me that the use of police cars in this manner to bring a motorcyclist to a stop constitutes “a governmental termination of . . . movement through means intentionally applied,” id. at 597, that is, through an “instrumentality set in motion or put in place in order to achieve that result.” Id. at 599. Thus, the majority‘s focus is misplaced. The critical factor in determining whether there was a seizure is not whether the crash was caused by a collision with a police car, but whether, as in Brower, the methods used by the police effectively terminated Morais’ freedom of movement. Such a restriction of movement may occur, as it did in Brower, without any actual, physical contact by the police. One may agree that the police actions in Brower were more egregious in the setting up of a fixed and blind roadblock, but the facts here just as clearly demonstrate all of the required elements of a seizure.
To the extent that one may harbor any doubt as to this conclusion, the nature of the police actions may be illuminated by asking what the expected outcome of those actions would have been had no crash occurred. Quite clearly, the expected outcome and, from the standpoint of the police, the desired and intended outcome would have been Morais’ apprehension. Thus, the inevitable result of what the police did here was either a peaceable apprehension or a cataclysmic one. Once such a point has been reached, I do not understand how it can be denied that a seizure has been effected. As the United States Supreme Court said in Brower, it is not possible,
in determining whether there has been a seizure in a case such as this, to distinguish between a roadblock that is designed to give the oncoming driver the option of a voluntary stop (e.g., one at the end of a long straightaway), and a roadblock that is designed precisely to produce a collision (e.g., one located just around a bend).
Id. at 598. I take the meaning of this statement to be that any roadblock, stationary or “rolling,” that forces its subject to come to a
For these reasons, I conclude that a seizure occurred in this case. On remand, I would instruct the court below to determine whether that seizure was reasonable, a question on which I express no opinion at this time.
Notes
Section 1983 provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The relevant portion of the affidavit consists of the following:
2. I have investigated the accident which is the subject matter of the case . . . . I have reviewed the police reports, and the photographs taken by the police of the scene. I have inspected the motorcycle driven by Denis Morais, have visited the scene twice, taken measurements of the accident scene and taken slide photographs of the scene.
3. Based on my education and experience, and my investigation of the accident, I have concluded as follows:
a. The police officers, Chief LaPointe, Troopers Yee and Tupper, engaged in the use of a rolling roadblock. The purpose of a rolling roadblock is to apprehend or stop a motor vehicle, and is highly dangerous.
b. While I have to do further tests and obtain some further information, it is my preliminary opinion that most of the damage to the motorcycle is far more consistent with it having been struck by an automobile than the motorcycle striking a rock outcropping. The police account of the collision which concludes that the motorcycle flipped in the air upside down, struck the ledge twice before Denis Morais was thrown from the vehicle is inconsistent with the laws of physics and represents collision dynamics I have not seen replicated in my experience of investigating and reconstructing over 1200 collisions.
The affidavit was dated April 13, 1992, seven months after this action was commenced and eight days before the hearing on the summary judgment motion.