Schroder v. City Of Fort ThomasSchroder v. City Of Fort Thomas
OPINION
SUTTON, Circuit Judge.
On June 28, 2000, Kimberly and Lawrence Schroder suffered every parent‘s worst nightmare. Their ten-year-old son, Stephen, was struck and killed by a car traveling 40 miles per hour in a 25 mile-per-hour zone on the street in front of their house. While no law provides true recourse for such a loss, the Schroders and local prosecutors sought some relief under the traditional civil and criminal causes of action authorized by state law, then the Schroders sought relief under a less-traditional civil cause of action under federal law. In this
The City of Fort Thomas, Kentucky opened Garrison Avenue on June 22, 1925. More than 50 years later, on April 5, 1976, the City restricted traffic on Garrison to one-way southeasterly travel and set the speed limit at 25 miles per hour, ten miles per hour below the State of Kentucky‘s permitted maximum speed limit (of 35 miles per hour) on residential streets. See
Despite periodic complaints from the residents of Garrison Avenue, the 25 mile-per-hour speed limit remained in effect for the next 24 years. Among the Garrison Avenue residents who complained to city officials about the speed limit was Kimberly Schroder. In May 1996, Schroder moved with her family, including two children, to 33 Garrison Avenue, and shortly thereafter she began to complain about the speed of traffic and the amount of traffic on the street. On several occasions between 1996 and 1999, Schroder told the police that Garrison was being used as a “cut-through” between two busier streets and that drivers routinely exceeded the 25 mile-per-hour speed limit. The police advised her to report license plate numbers of suspected traffic violators, though they did not take (or promise to take) any further action against those violators or any actions regarding the conditions on Garrison Avenue. The police also removed signs posted by residents indicating that drivers should adhere to a 15 mile-per-hour speed limit because children in the area were playing. According to city administrative officers, none of Schroder‘s requests was approved by the City.
On June 28, 2000, just over 75 years after its creation, Garrison Avenue became the scene of a tragic accident. At 6 p.m. that evening, a car traveling at an estimated speed of 40 miles per hour struck and killed Stephen Schroder, the Schroders’ ten-year-old son, as he attempted to cross the street in front of his home. The driver of the car, Phillip Bridges, pleaded guilty to second-degree manslaughter for Stephen Schroder‘s death and ultimately settled a civil tort suit with the Schroders arising from the accident. In August of 2000, in response to the accident, the City lowered the speed limit on Garrison Avenue to 15 miles per hour.
On June 27, 2001, the Schroders filed this
The claims against the City and the individual defendants, as an initial matter, implicate different theories of liability. Under Monell v. Department of Social Services, 436 U.S. 658 (1978), a local government may be held liable under
In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the Supreme Court held that the Due Process Clauses of the
There are two exceptions to the DeShaney rule, one established by DeShaney itself, the other by decisions of this court. Under the first exception, “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney, 489 U.S. at 199-200. “Having incarcerated persons with demonstrated proclivities for antisocial criminal, and often violent, conduct, having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations, brackets and quotations omitted). Under the second exception, where a State creates a perilous situation that renders citizens more vulnerable to danger at the hands of private actors, a plaintiff may bring a substantive due process claim by establishing (1) an affirmative act by the State that either created or increased the risk that the plaintiff would be exposed to private acts of violence, see Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir.1998); (2) a special danger to the plaintiff created by state action, as distinguished from a risk that affects the public at large, see id.; and (3) “the requisite [state] culpability to establish a substantive due process violation,” Ewolski v. City of Brunswick, 287 F.3d 492, 510 (6th Cir.2002). We have described the “requisite culpability” factor as requiring “deliberate indifference” by the government entity when the entity “had time to deliberate on what to do.” Bukowski v. City of Akron, 326 F.3d 702, 710 (6th Cir.2003).
Nor do either of the two DeShaney exceptions apply to a city‘s enforcement of its general traffic laws. The “custodial” exception does not apply, the parties agree, because there has been no involuntary custody in this case. See DeShaney, 489 U.S. at 200 (holding that an affirmative duty to protect arises “when the State by the affirmative exercise of its power so restrains an individual‘s liberty that it renders him unable to care for himself“); cf. Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that “deliberate indifference to [the] serious medical needs of prisoners” violates the Constitution); Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (reaching the same conclusion with respect to involuntarily committed patients).
The Schroders also fail to satisfy any of the three requirements for establishing our circuit‘s “state-created danger” exception to DeShaney. First, the creation of a street and the management of traffic conditions on that street are too attenuated and indirect to count as an “affirmative act” that placed Stephen Schroder in the setting of a state-created peril. See DeShaney, 489 U.S. at 201 (holding that the State “played no part in [the] creation” of the dangers facing Joshua DeShaney even though it had created the laws that placed him in the custody of his father); Martinez v. California, 444 U.S. 277, 285 (1980) (holding that decedent‘s death five months after a parole board granted a former prisoner release “is too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law“); Cartwright v. Marine City, 336 F.3d 487, 493 (6th Cir.2003) (taking an individual from “a place of great danger” (the shoulder of a dark, foggy, two-lane highway) and moving him to “a place of lesser danger” (the parking lot of an open convenience store) does not count as an affirmative act); Bukowski, 326 F.3d at 709 (finding no affirmative act when the police returned plaintiff to her home at her request); Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 912-13 (6th Cir.1995) (holding that the failure to train bus drivers to respond to a medical emergency did not amount to an “affirmative action that exposed decedent to any danger to which she was not already exposed“).
Third, the requisite “deliberate indifference” has not been established. The Schroders and others, it is true, warned the City about the risks of a 25 mile-per-hour speed limit and urged them to lower it to 15 miles per hour. And in one sense of these words, it is also true, it could be suggested that the City exhibited deliberate indifference to these warnings. After all, the City was told about the risks of not lowering the speed limit to 15 miles per hour (more accidents); it intentionally chose not to heed this warning (taking on the risk of more accidents); and the alleged risk came to pass when Stephen Schroder was killed (an accident).
But this argument classically proves too much. It is in the very nature of deliberative bodies to choose between and among competing policy options, and yet a substantive due process violation does not arise whenever the government‘s choice prompts a known risk to come to pass. For in one sense, it could be said that all governing bodies act with deliberate indifference when they consider and reject a traffic-safety proposal of this sort that comes with known risks—because the accepted premise of all speed-limit debates is that lower speed limits will lead to fewer accidents and fewer traffic fatalities. Many, if not most, governmental policy choices come with risks attached to both of the competing options, and yet “it is not a tort for government to govern” by picking one option over another. Scheuer v. Rhodes, 416 U.S. 232, 241 (1974) (quoting Dalehite v. United States, 346 U.S. 15, 57 (1953) (Jackson, J., dissenting)). Because the demands on a government may be as manifold as its resources are limited, the Court has recognized in DeShaney and elsewhere that the practicalities of day-to-day governance require officials to make difficult allocation choices and tradeoffs and that it is generally not for the courts to compel affirmative steps in one area at the expense of another in weighing competing policy options. See DeShaney, 489 U.S. at 203 (recognizing that the defendant social workers faced a difficult policy decision because, “had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection“); Collins v. City of Harker Heights, 503 U.S. 115, 128-29 (1992) (observing that “[d]ecisions concerning the allocation of resources to individual programs ... involve a host of policy choices that must be made by locally elected representatives“); see also Dawson v. Milwaukee Hous. Auth., 930 F.2d 1283, 1286 (7th Cir.1991) (recognizing that “[j]udicial directives to devote more resources to safety do not create more resources” but merely “reallocate resources“).
Consider the policy tradeoffs in this case. Kentucky law permitted the City to choose any speed limit for this residential area at or below 35 miles per hour,
The “callous disregard” or “conscience shocking” element is conspicuously missing here. What the Schroders have shown at most is that the City either shortsightedly did not heed the complaints of its citizens before tragedy struck or did not strike the correct balance in determining the proper speed limit for Garrison Avenue. And while this accident would wrench even the coldest of hearts and is undeniably heart-wrenching for the Schroder family, for the Fort Thomas community and for us, it does not present a federal constitutional violation. See Ewolski, 287 F.3d at 516 (“[I]mprudence and poor execution do not rise to the level of constitutionally arbitrary abuses of power.“).
III.
For these reasons, we must affirm.