Lead Opinion
BOGGS, J., delivered the opinion of the court, in which MERRITT, J., joined. WELLFORD, J. (pp. 875-876), delivered a separate concurring opinion.
In No. 96-5996, the estate of Conni Black (hereinafter “Black”) appeals the judgment entered against her on her substantive due process claim against officers of Boone County, Kentucky, and' of the City of Florence arising from her death in a car accident on the night of February 18, 1994, shortly after those officers removed her from the car of Susan Stemler and placed her in the truck of her drunk and violently abusive boyfriend, Steve Kritis. In No. 96-5993, Stemler appeals the judgment entered against her on her claims of false arrest, malicious prosecution, and violation of equal protection arising from her arrest at that time for driving under the influence; she alleges that the officers arrested her solely because they believed her to be a lesbian. For the reasons explained herein, with respect to both plaintiffs, we affirm the district court’s award of summary judgment to the City of Florence and to the Boone County defendants in then-official capacities. However, we reverse the dismissal of Black’s complaint against the individual officers, and we also reverse the dismissal of Stemler’s complaint against the individual officers with respect to her equal protection claim.
I. Background
A. The Assaults and Car Chase
On February 18, 1994, at about 10:45 p.m., Conni Black and her boyfriend, Steve Kritis, arrived at Willie’s Saloon in the Ramada Inn in Florence, Kentucky.
Steve Kritis then burst into the restroom and slung the door to the restroom hard. He came into the restroom yelling. He stated in part: “If you don’t get your fucking sister out of here, I’ll kill the bitch.” He yelled this at Laura Stemler.
He grabbed Conni Black on the arm as he screamed at her. He slammed her against a toilet stall. He then yanked her out of the restroom. After he left the restroom, I could still hear him screaming outside of the restroom.... Conni came back into the restroom. He yanked her out physically of the restroom a second time.
At this point, I wondered why nobody had called the police. When I went out of the restroom and into the lobby of the Ramada, I observed Kritis pushing Conni around in the parking lot. As I went outside into the parking lot, I observed Kritis still pushing Conni....
Kritis put his forehead against Conni’s and put his hands behind his back. For every step Conni took to flee Kritis, Kritis took one forward still pressing his forehead against hers. He then made a fist to hit her. He looked at me and saw that I was watching and released his fist.
According to Stemler, after Kritis removed Black from the restroom, Kritis slammed Black against a concrete wall in the hotel lobby; Black’s head hit the wall and she briefly passed out. ' Black asked Stemler to drive her home, and Stemler agreed. As they were leaving, Kritis struck Stemler in the back of the head with a blunt object. Stemler and Black got into Stemler’s car and drove away at about 2:15 a.m. Kritis pursued them in his truck. Kritis did not have his headlights on. At one point , during the chase, Kritis rear-ended Stemler’s ear with his truck in an attempt to make her car stop. A witness, Terry Barker, was driving east on U.S. 42 in Florence at the time; he saw that Kritis was chasing the women and that the women were in obvious distress, and decided to follow the vehicles.
B. The Police Stop
After the vehicles pulled back on to U.S. 42, they stopped at a light , at Tanners Lane. Barker flashed his lights to alert a nearby police officer, defendant Lieutenant Thomas Dusing, an officer of the Florence Police Department, who was responding to the 911 call. When Dusing pulled up to Barker, Barker informed him that there was a “serious problem” with the two vehicles ahead of him, and that Kritis appeared to be a threat to the safety of the two women. After speaking with Barker, Dusing pulled his cruiser in front of Stemler’s car and Kritis’s truck at the intersection. As he left the cruiser, Stemler jumped out of her car and ran to him. Stemler told Dusing that Kritis was drunk, that he had assaulted both her and Black, that he had threatened to kill her, and that he had placed both of them in danger by chasing after them at high speed. She was obviously emotionally distraught, and cried while she related the evening’s events to Dusing. While Dusing spoke with Stemler, four other officers arrived at the scene in separate ears: officers Bobby Joe Wince and John Dolan of the Florence Police Department, and officers Rob Reuthe and Chris Alsip of the Boone County Sheriffs Office. Each of the four would later be named as defendants in this litigation along with Dusing.
During Stemler’s conversation with Dusing, Reuthe approached Kritis, who was seated in his truck. According to Reuthe’s testimony, Kritis told him that Stemler was a lesbian,
Dusing would later submit a police report claiming that he did not smell alcohol on Kritis’s breath at that time. This claim is contrary to his contemporaneous statements to Wince and to Mr. Minnick that Kritis smelled of alcohol. A blood test taken over two hours later would reveal that Kritis had a blood alcohol level of .115, which indicates that at the time of the police stop, his blood alcohol level was probably between .155 and .175, at least one-and-a-half times the legal limit in Kentucky of .10.
At some point, Dusing asked Wince to test Stemler for intoxication. By that time, Wince had already heard Kritis’s allegation that Stemler was a lesbian. Wince did not find any of the standard DUI indicators in examining Stemler; she did not have affected
After performing the field tests, Wince conferred with Dusing and Dolan. By this time, all three officers had heard Kritis’s claim that Stemler was a lesbian. Dusing decided that they should arrest Stemler for driving under the influence, and the other officers agreed. Dusing would later concede that, in deciding to arrest Stemler and not Kritis, he relied on Kritis’s version of events more than he did Stemler’s. Wince approached Stemler, informed her that she was under arrest, and asked her who she would like to tow her car. Stemler broke into tears, pointed at Kritis, and asked Wince, “Aren’t you going to check him?' Why don’t you check him?” As she was pointing, Wince grabbed her arm, pulled it behind her, and placed her in handcuffs.
At approximately the same time, two unknown officers, one each from Florence and from Boone County, approached Barker, who was parked across the street. Barker related the complete story of the chase to both officers. Barker overheard one of the officers relating his story to a third officer. The officers asked him whether he saw Stemler driving the car, and whether he would be willing to testify against Stemler in court. Upon learning that Stemler was being placed under arrest, Barker told the officers that they were arresting the wrong person and that Kritis was obviously “crazy”; the officers didn’t appreciate that, became “arrogant,” and told him that he didn’t “know what’s going on” and that he could “go on about your business.” Barker was dumbfounded and angered by the officers’ actions. Barker confirms that the police never asked Kritis to leave the truck, despite the fact that, as during the chase, Kritis still had not turned his headlights on. Although the officers told Barker that they would contact him to be a witness against Stemler, they never did so. Furthermore, Wince failed to list Barker as a witness at the scene in his field notes, and the card on which the officers supposedly were writing down Barker’s name and telephone number was lost.
While Wince was testing Stemler for intoxication, Mr. Minnick arrived at the scene. He spoke first with defendant Boone County Officer Chris Alsip. Alsip immediately “informed” him that Stemler was a lesbian. Minnick thought that it was odd that Alsip could state that fact with such certainty, given that Stemler had out-of-state license plates. Wince also made a point of informing Minnick that Stemler was a lesbian. Although the officers at the police stop were aware that Minnick had observed Kritis chasing Stemler, they asked him only whether they observed Stemler driving her car.
Dusing ordered Dolan to approach Black, who was still in the passenger seat of Stemler’s ear, and to inform her that she would be arrested for public intoxication “if she didn’t want to leave with the male.” At that time, Black was very intoxicated; her eyes were glassy and she slurred her words. Alsip and Dolan lifted her out of the car and assisted her to Kritis’s truck. Black stumbled as she walked to the truck. Alsip physically placed her into the passenger seat in the truck. Alsip would later admit that he never heard Black say that she wanted to leave with Kritis.
C. The Subsequent Accident
As soon as Black was in the truck, at about 3:00 a.m., Kritis drove away. Kritis drove two blocks from the police stop and then turned onto the northbound lanes of 1-75. Black had passed out in the truck. According to Kritis, when she woke up, she “went haywire” and began hitting him; he hit her back and lost control of the truck. The truck swerved to the right and collided side-to-side with a guardrail. The impact threw Black partially out of the passenger side window. Black’s arm was completely severed from her body and her head was severed into two parts. The truck was damaged and the front tire was blown. Kritis continued to drive slowly on 1-75 and then east on 1-275 until the truck could proceed no further.
A passing motorist, Kristopher Waldespuhl, was waved down by Kritis around 3:45 a.m. Kritis said, “my girlfriend is kind of hurt,” and asked for help. According to Waldespuhl, Kritis spoke “very nonchalantly,” and “had no emotions at all, wasn’t upset.” It was immediately obvious to Waldespuhl that Kritis was drunk; Kritis had alcohol on his breath, his eyes were glazed and bloodshot, and he was not acting sober. Kritis admitted to Waldespuhl that he was drunk. He also told Waldespuhl that “they were fighting at Willie’s and some dyke bitch took her from me.” Waldespuhl walked over to the other side of the truck. It was immediately apparent to Waldespuhl that Black was dead, although Kritis was unaware of this fact. Waldespuhl left to place a 911 call.
Officer Stephen Johnson of the Lakeside Park-Crestview Police Department arrived at the scene. It was obvious to Johnson that Kritis was drunk; he did not even need to conduct a field sobriety test to determine that he had probable cause to arrest Kritis. Another officer at the scene, Mike Mann, also immediately determined that Kritis was drunk. According to Mann, “Steve Kritis told me that he and his.girlfriend were fighting and exchanging blows. He stated that he felt a large ‘thud’ but continued driving the truck. His truck started to quit and he pulled over.” Johnson placed Kritis under arrest for driving under the influence at 4:30 a.m.
An accident reconstruction specialist, Detective Jack Prindle, determined that, at the time of the impact with the guardrail, the truck was traveling at sixty-six miles per hour. The truck had traveled from the scene of the police stop to the scene of the accident in about five minutes. The accident occurred when the steering wheel turned abruptly to the right; there is no way to know what caused the wheel to turn. As the vehicle struck the guardrail, Black was partially ejected, causing her head and right arm to be severed on the guardrail. Kritis continued on for 2.5 miles before stopping.
D. Stemler’s Prosecution
After arresting Stemler, Wince took her for a blood test. Stemler claims that she had had only a half-glass of beer and two Irish coffees over the course of the night. She suspects that the officers tampered with her blood sample, which allegedly revealed a .17 blood alcohol level an hour after the breathalyzer allegedly revealed a .105 blood alcohol level. Wince handled her blood sample after he learned that Black had died. Larry Dehus, a “forensic scientist,” reviewed the spe
Stemler was prosecuted in the Boone County District Court for driving under the influence of alcohol. She defended the charge on the ground that the evidence against her had been fabricated. Dr. Gordon James testified at her trial that the handling of the blood sample was “arbitrary” and that the chain of custody had not been established. Her first trial resulted in a hung jury. She was retried. Although Wince claimed at Stemler’s first DUI trial that he had not completed an evidence card, at the retrial he produced a completed card which neither Hayes nor Snow had ever seen. He claimed that he completed the card on February 19, at the time of the arrest; Hayes testified that if that were true, she should have seen the card. The second jury acquitted Stemler.
E. Related State Court Proceedings
On March 7, 1994, Black’s estate filed a wrongful death action under Kentucky law against each of the defendants in this case in the Boone County Circuit Court. Chipman v. Florence, No. 94-CI-00202. Stemler also brought suit against the defendants herein in the Boone County Circuit Court, raising state-law claims of malicious prosecution, false arrest, abuse- of process, assault' and battery, false imprisonment and negligent or intentional infliction of emotional distress. Stemler v. Florence, No. 94-CI-00459. The state court consolidated the two suits, and in separate orders on April 2 and April 26, 1996, it awarded the defendants' summary judgment on all claims except Stemler’s assault and battery claim against Wince. Stemler voluntarily • dismissed that claim. Both Black and Stemler have appealed the judgments against them, and their appeals are pending in the Kentucky Court of Appeals.
F. Proceedings Below
On March 31, 1994, William Chipman, the administrator of the estate of Conni Black, filed a complaint in the United States District Court for the Eastern District of Kentucky against Dusing, Dolan, Wince, Reuthe, and Alsip. The complaint also named the City of Florence and Ron Kenner, the Boone County Sheriff.
On January 24, 1995, Susan Stemler filed a complaint under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Kentucky against Wince, Dusing, Dolan, and the City of Florence. The com
We have consolidated the two appeals for consideration. We will consider first both plaintiffs’ claims against the municipal defendants, then Black’s claims against the individual officers, and finally Stemler’s claims against the individual officers.
II. Municipal Liability Under § 1983
We may easily dispose of the claims against the City of Florence and Boone County. While a municipality may be held liable under 42 U.S.C. § 1983 for a constitutional violation directly attributable to it, § 1983 does not impose vicarious liability on a municipality for the constitutional torts of its employees. See Monell v. Department of Soc. Servs. of the City of New York,
As noted above, in the present case, both Stemler and Black argue that the municipalities should be held liable as a result of their failure to train their officers adequately. Neither plaintiff has demonstrated that there is a genuine issue of material fact as to whether the training programs were adequate, or as to whether the city or the county acted with deliberate indifference to the risk of a constitutional violation. Officers of both the city and the county are required to attend the Basic Police Academy of the Kentucky Justice Cabinet Department of Criminal Justice Training. The academy is a 400-hour course in which officers are taught the elements of criminal offenses under Kentucky law, the definition of probable cause, and procedures for the handling of evidence. At the academy, officers are also taught how to ensure the safety of potential victims of domestic violence. In addition, both the city and the county require their officers to attend a forty-hour training class every year; this program also includes training as to the proper response to an allegation of domestic violence. Neither Stemler nor Black have identified any reason to believe that the training programs were inadequate in any way. Each argues only that the defendant officers lacked complete familiarity with their department’s policy manuals; however, neither plaintiff asserts any reason to believe that the city or the county did not take proper steps to ensure that their officers knew and eomplied'with their policies.
Furthermore, a plaintiff ordinarily cannot show that a municipality acted -with deliberate indifference without showing that the municipality was aware of prior unconstitutional actions of its employees and failed to respond. See Brown, — U.S. at-,
III. Black’s Substantive Due Process Claim
A. Test for Qualified Immunity
We turn now to the merits of Black’s claim against the individual officers. She alleges that the officers violated her right to “substantive due process”
It is not necessary that the very action have been previously held unlawful but, given the preexisting law, the unlawfulness of the conduct must have been apparent. In determining whether an official is entitled to qualified immunity, this court asks whether the law was clearly established at the time of the alleged action.
Barton v. Norrod,
We review the district court’s determination that the officers were entitled to qualified immunity de novo. See Barton,
This was error. While, as we will see below, there is a good deal of uncertainty with regard to the precise contours of substantive due process, it does not follow that state actors are insulated from liability on all such claims, no matter what the underlying facts may be. The fact that the law may have been unclear, or even hotly disputed, at the margins does not afford state actors immunity from suit where their actions violate the heartland of the constitutional guarantee, as that guarantee was understood at the time of the violation.
B. Custody Establishes the Existence of a Duty
We therefore proceed to determine whether the individual officers violated law that was clearly established in February 1994 when they forced Black into Kritis’s truck. When, as here, a plaintiff alleges that state actors violated substantive due process by placing her at risk of harm from a third party, the court is presented with two distinct, though interrelated inquiries. First, in order to find for the plaintiff, the court must, conclude that the plaintiff and the state actors had a sufficiently direct relationship such that the defendants owed her a duty not to subject her to danger. Second, the court must also conclude that the officers were sufficiently culpable to be liable under a substantive due process theory.
With respect to the first question, while the state does not owe its citizens a constitutional duty to keep them from harm in all circumstances, it has been clearly established that such a duty will arise when the state has acted to deprive an individual of certain indicia of liberty:
The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. In the substantive due process analysis, it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf—through incarceration, institutionalization, or other similar restraint of personal liberty—which is the “deprivation of liberty” triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.
DeShaney v. Winnebago County Dep’t of Soc. Servs.,
The defendants rely on Foy v. City of Berea,
Neither case is apposite. In the present case, Black was rendered unable to protect herself by virtue of both the threat of arrest and her physical placement in the truck by the officers. Unlike Foy, Black never had the opportunity to make a voluntary choice to continue driving with Kritis beyond the span of time that the police had in effect ordered her to do so; her fatal accident occurred about five minutes after the truck left the police stop. Furthermore, unlike Walton, Black was in the custody of the defendant officers in the sense that they had affirmatively acted to deprive her of her liberty, rather than merely negligently refused to act to protect her. See Walton,
While it is clear that the state owes a duty of care to an individual who has suffered a deprivation of liberty by the state — e.g., an individual who has been in the state’s custody — there is also dicta in DeShaney that suggests that the state may also owe a duty to individuals in non-custodial settings:
While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them.
C. The Defendants Violated Their Duty to Black by Exhibiting Deliberate Indifference to Her Fate
Our holding that the officers owed Black a duty of care does not end our inquiry, for we also must determine what duty of care they owed, and whether they breached that duty. Over the last decade, the Supreme Court and this court have gradually defined the level of culpability with which a state defendant must act in order to be held liable for a violation of substantive due process. In Daniels v. Williams,
[T]he allegation in the present complaint of gross negligence on the part of the defendants was sufficient to charge them with arbitrary use of government power....... [A] person may be said to act in such a way as to trigger a section 1983 claim if he intentionally does something unreasonable with disregard to a known risk or a risk so obvious that he must be assumed to have been aware of it, and of a magnitude such that it is highly probable that harm will follow.
Id. at 282.
This aspect of Nishiyama has since been further refined. In Lewellen v. Metropolitan Gov’t of Nashville & Davidson County,
Of course, the phrase “arbitrary in the constitutional sense” is not self-defining; indeed, in Collins, the only elucidation that the Supreme Court provided for that phrase was a reference to the old chestnut of substantive due process claims, “conscience shocking.”
In cases such as this one, where the plaintiff suffered injury as a result of being placed in the state’s custody, it has consistently and uncontroversially been the rule that a constitutional claim arises where the injury occurred as a result of the state’s deliberate indifference to the risk of such an injury. See Farmer v. Brennan,
We again note that the district court erred in holding that the entire field of substantive due process law regarding state liability for indirect injury was not clearly established in 1994. See Chipman,
The very notion that police officers should not have known that they could not force an incapacitated woman to drive off with an obviously drunk man who they had reason to believe had beaten her betrays a chilling and unacceptable vision of the role of the police in our society. In short, these facts support a substantive due process claim under law that was clearly established in 1994, and we are therefore obliged to reverse the dismissal of her complaint against the individual officers.
IV. Stemler’s Claims against the Individual Officers
We turn now to the merits of Stemler’s claims against the individual officers. She has raised claims of false arrest and malicious prosecution against the officers. She also asserts that her arrest violated the Equal Protection Clause insofar as it was
A. False Arrest and Malicious Prosecution
As noted above, Stemler brought a suit against the defendants herein in the Boone County Circuit Court alleging various state-law theories. The state court awarded summary judgment to the defendants on April 2, 1996. The state court described the facts in relevant part as follows:
Upon speaking to Stemler, Officer Wince noted the odor of alcohol, conducted field sobriety tests, administered a PBT test (which read .105), and obtained an admission from Stemler that she had consumed alcoholic beverages. Based upon the above, Officer Wince decided to arrest Stemler for DUI.
Stemler v. City of Florence, No. 94-CI-00459, slip op. at 2 (Boone Co., Ky., Cir. Ct. Apr. 2, 1996) (consolidated with Chipman). The court reasoned that the evidence established that there was probable cause to arrest her:
There are no genuinely disputed material facts relating to the question of probable cause for the arrest of the Plaintiff, Stemler. Stemler stated at the scene that she had consumed alcohol, she had the smell of alcohol on her person, her performance on the field sobriety tests and her preliminary breath test result of .105 certainly constitutes [sic] probable cause.
Id. at 5. The state court then held that the existence of probable cause precluded both the false arrest claim and the malicious prosecution claim under Kentucky law.
Stemler is precluded from relitigating in this case the issue of whether there was probable cause to arrest her to the same extent that Kentucky would accord preclusive effect to the judgment against her in her state court civil suit. See Migra v. Warren City Sch. Dist. Bd. of Educ.,
The existence of probable cause for Stemler’s arrest forecloses her false arrest claim. A plaintiff bringing a constitutional claim of false arrest under the Fourth Amendment must show that there was not probable cause for the arrest. See Donovan v. Thames,
Stemler, however, is not now asserting that sort of a malicious prosecution claim. Instead, she asserts that even if there were probable cause to prosecute her, Wince committed a constitutional tort by falsifying evidence against her. Under law that was clearly established in 1994, Wince would have violated Stemler’s right to due process if he knowingly fabricated evidence against her, and if there is a reasonable likelihood that the false evidence could have affected the judgment of the jury. See United States v. Lochmondy,
B. Failure to Plead an Evidence-Tampering Theory
However, Stemler did not allege this alternative theory in her complaint. The closest she comes to making such an allegation is at paragraph 48 of her amended complaint: “The Defendants, Officers Wince, Dolan, Dusing and City of Florence, instituted and continued the original criminal judicial proceeding against the Plaintiff by insisting upon her prosecution and conviction despite their personal knowledge Plaintiff should not be so prosecuted.” This allegation cannot fairly be read to give notice that she seeks to assert an evidence-tampering claim. The record reflects that the evidence-tampering claim first arose on May 7, 1996, in Stemler’s response to the city’s motion for summary judgment, after the individual officers were dismissed from the suit.
It is well-settled that the parties may constructively amend the complaint by agreeing, even implicitly, to litigate fully an issue not raised in the original pleadings. See 6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1493 at 19 (2d ed.1990). However, such a constructive amendment can have no effect upon a party who has been dismissed from the action, and who is not given notice that a new claim of liability has been asserted against him. Stemler, of course, was free to seek leave to amend her complaint again to raise her new theory of falsification of evidence, or to file a new complaint against Wince explicitly raising that claim. She did not do so. The district court did not err in dismissing Stemler’s complaint by failing to consider a cause of action that she had not yet alleged. Consequently, this court is powerless to engage in any further review of her allegation that Wince falsified evidence against her in her criminal trial.
C. Equal Protection
The defendants also assert that Stemler is collaterally estopped from pursuing her equal protection claims. However, the determination of probable cause does not preclude a plaintiff from pursuing a claim that the state chose to prosecute her due to invidious discrimination. The courts have long held that a selective enforcement claim may be available even where there is probable cause for prosecution. See Wayte v. United States,
We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.
Whren v. United States, — U.S.-,-,
In order to state a claim of selective prosecution, a plaintiff must demonstrate three elements:
First, [the state actor] must single out a person belonging to an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations. Second, he must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to.
United States v. Anderson,
We believe that this is the rare case in which a plaintiff has successfully stated a claim of selective prosecution. Stemler’s complaint adequately alleges, and the record evidence supports a finding, that the defendant officers chose to arrest and prosecute her for driving under the influence because they perceived her to be a lesbian, and out of a desire to effectuate an animus against homosexuals. Each of the defendants was aware of Kritis’s assertion that Stemler was a lesbian, and Dusing admitted that he relied on Kritis’s version of the facts in deciding to arrest Stemler. Furthermore, the record supports a finding that Kritis was similarly situated to Stemler (or, indeed, far drunker than she), that the defendant officers perceived Kritis to be heterosexual, and that consequently they chose not to arrest him at the same time that they arrested Stemler.
The defendants concede that Stemler’s complaint alleges, and the record evidence could support a finding, that they decided to arrest and prosecute her because they perceived her to be a lesbian. They do not attempt to assert any justification whatsoever for this decision; instead they argue that as a blanket matter it is always constitutional to discriminate on the basis of sexual orientation, citing Bowers v. Hardwick,
While this case, and Romer, involved animus related to sexual orientation, the principle involved in our case really has nothing to do with that controversial area. Moreno, the case quoted in Romer, above, involved commune residents; the principle would be the same if Stemler had been arrested discriminatorily based on her hair color, her college bumper sticker (perhaps supporting an out-of-state rival) or her affiliation with a disfavored sorority or company.
It may be objected that Romer was not decided until after the defendants arrested and sought to prosecute Stemler allegedly for the sole reason of animus against her perceived sexual orientation. But it didn’t take Romer to tell us that such arbitrary state action is contrary to the principle of equal protection of the laws.
Furthermore, while a plaintiff in a selective-prosecution case must demonstrate that she was prosecuted because she was the member of some group, and not merely because the state actor prosecuted her out of purely personal animosity, see Futernick v. Sumpter Twp.,
It is beyond cavil that Stemler has adequately alleged a selective-enforcement claim here. The record supports a finding that she was perceived to be a member of “an identifiable group,” and that defendants sought to implement their animus against that group by arresting and seeking to prosecute her. The defendant officers are unable, and indeed have not even attempted, to demonstrate that there is any conceivable rational basis for a decision to enforce the drunk-driving laws against homosexuals but not against heterosexuals. The defendants can rely only on their assertion that discrimination on the basis of sexual orientation should be accorded no scrutiny whatsoever. We emphatically reject this assertion; the proposition that the state may constitutionally discriminate by enforcing laws only against homosexuals (or Centre College graduates or SAE members) is not now, and never has been, the law. Under the facts as we are obligated to construe them, the defendants violated the core principle of the Equal Protection Clause by choosing to exercise the power of the state against Stemler solely for the reason that they disapproved of her perceived sexual orientation. Thus, the dismissal of her complaint must be reversed.
V. Conclusion
With respect to both plaintiffs, the district court’s award of summary judgment to the municipal defendants and to the defendants in their official capacities is AFFIRMED.
CONCURRENCE
Notes
. The procedural postures of these cases are somewhat odd, since in both cases we are presented with an appeal from a dismissal under Rule 12(b)(6) with respect to some defendants and an appeal from summary judgment with respect to other defendants. Except where otherwise noted, this opinion will discuss the record evidence viewed in the light most favorable to the appellants.
. Stemler denies that she is a lesbian.
. Both Black’s complaint and Stemler’s complaint allege that Kritis’s blood alcohol level at the time of the police stop was .20.
. Stemler’s complaint alleges that she had a blood alcohol level below .10 at the time of the police stop.
. In her complaint, Stemler alleges that Wince used excessive force in handcuffing her. The district court denied Wince’s motion to dismiss this claim; however, Stemler has voluntarily dismissed her excessive force claim.
.Black’s complaint alleges that, "having lost the assistance of Susan Stemler, under threat of arrest and against her will,” she capitulated and allowed herself to be placed into Kritis’s truck. Dolan testified that Black asked if she could
. Kritis would subsequently plead guilty in the Boone County District Court to manslaughter in the second degree and to wanton endangerment in the first degree. He was sentenced only to probation. After violating the terms of his probation, he is now serving a five-year prison sentence.
. The appellees have informed the court that Kenner died on May 11, 1997. The appellees should have informed the court at the same time of the identity of Kenner’s successor. See Fed. R.App. P. 43(c). Since Black sued Kenner only in his official capacity as Boone County sheriff, for the purposes of this appeal we will treat the claims against him and the other Boone County defendants in their official capacities as a suit directly against Boone County.
. During the course of discovery, Stemler was denied access to the defendants’ personnel files. Instead, the magistrate judge conducted an in camera review of those files and determined that they did not contain relevant evidence. Stemler now claims that the magistrate judge erred and that the files may contain evidence of other incidents to which the City of Florence failed to respond. However, she has waived this claim by failing to appeal the magistrate judge's ruling to district court. See Fed. R. Civ. P. 72(a).
. In contrast to procedural due process, which guarantees that individuals will be afforded fair procedures before they are deprived of life, liberty, or property, substantive due process protects individuals against “certain government actions regardless of the fairness of the procedures used to implement them.” Daniels v. Williams,
. An instructive parallel: the district court’s theory is analogous to an attempt to strike down a statute as unconstitutionally vague on its face because the application of the statute is not clear at the margins. Such an attempt will be unavailing, since federal courts will consider a facial vagueness claim only if a statute is unconstitutionally vague in all possible applications. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
. The defendants have argued that Black is precluded from relitigating the findings of the Boone County Circuit Court in her state-law civil suit. In awarding judgment to the defendant officers on Black’s wrongful death claim, the state court held that none of the state actors were the direct cause of the accident on the highway. Chipman v. City of Florence, No. 94-CI-00202 slip op. at 4 (Boone Co., Ky., Cir. Ct. Apr. 2, 1996). While those findings are entitled to preclusive effect, they are irrelevant to the merits of her substantive due process claim.
. Stemler argues, without elaboration, that she did not receive a fair hearing in the state court in her state-law civil suit. However, a slate court proceeding is accorded preclusive effect in a later § 1983 suit so long as it meets minimal standards of due process. See Kremer v. Chemical Constr. Corp.,
. Because we affirm the dismissal of the false arrest claim on the ground of collateral estoppel, we do not address the reasoning of the district court, based on Albright v. Oliver,
. We need not discuss whether'any other aspect of Romer's holding is sufficiently "new that a state actor could not be expected to anticipate it. The core principle relevant in this case, that the state may not act solely out of the desire to harm an unpopular group, was clearly established by the case law in 1994.
Concurrence Opinion
Circuit Judge, concurring.
■ I concur in part II dealing with a conclusion of no municipal liability and propriety of summary judgment for the City and the County in this case. As to part I, I do not necessarily subscribe to all of the findings made, particularly as to subparts B and D. I do not think it necessary to go into the detail recited by Judge Boggs to rule on the orders granting qualified immunity to the individual defendants.
I also concur in parts IV.A and IV.B that “probable cause for Stemler’s arrest forecloses her false arrest claim” and that “probable cause would negate the possibility of liability under a state-law malicious prosecution theory,” or a false arrest claim. Also, I concur in the conclusion that Stemler may not pursue further a claim that defendant Wince falsified evidence against her in her state criminal trial.
As to part III, the claim on behalf of the deceased Conni Black, I believe that the alleged conduct of the individual police officers supports reversal of their motions to dismiss. I do have reservations about concluding that deliberate indifference may have been averred as a matter of constitutional law, but I would agree with Judge Boggs to the extent he maintains that “the defendants should have known in February of 1994 that their [alleged] actions violated [Black’s constitutional] right.”
I would not cite Nishiyama v. Dickson County,
Lewellen also holds that liability of a state actor may arise from some “action that is ‘arbitrary in the constitutional sense.’ ” This is a higher standard than gross negligence. Lewellen requires some designed and intentional activity on the part of the state actor to harm or punish someone. Id. And in this ease, there was a sufficient allegation of arbitrary conduct on the part of some defendants intentionally designed to injure or punish Conni Black. I would hold simply that Black’s estate has alleged sufficient facts to survive a motion to dismiss and that we should therefore reverse the contrary holding of the district court and remand for further consideration of the existence and proof of a constitutional tort. To put it another way, the alleged conduct of certain individual defendants may have been sufficiently shocking to the conscience that the Black claim should not have been dismissed against those defendants. See Collins v. City of Harker Heights,
I wholeheartedly agree with Judge Boggs’ conclusion that “under any definition of the term, Black was in the defendant officer’s custody at the time she was forced into Kritis’ truck.” The district court erred, in my view, in holding that Black, “who was very intoxicated ... was not taken into custody in the ordinary sense.” I believe there is adequate averment and showing that Black was effectually taken into custody. The district court therefore erred, I believe, in granting motions to dismiss as to the individual defendants.
I next address part IV.C, Stemler’s remaining claims against the individual officers based upon an alleged equal protection violation, which. Judge Boggs characterizes as alleged selective prosecution. I cannot
The district court, upon remand, must also determine the effect, if any, on the federal claims asserted in this case of any future decision of the Kentucky Court of Appeals concerning the individual claims of Stemler and on behalf of Black. There is also the question whether plaintiffs impermissibly split them causes of action in these cases. They could have filed the § 1983 actions in state court. See Kabealo v. Davis,
I would affirm the decision of the district court as to the municipal defendants, and as to defendants in their official capacities. I would affirm dismissal of Stemler’s claims of false arrest, malicious prosecution, and evidence falsification. I would REVERSE and REMAND for further proceedings and consideration of alleged federal constitutional torts in light of the decision set out herein, and in light of the Kentucky appellate decision on the remaining claims.
ORDER
Upon consideration of the petition for rehearing filed by the appellees,
It is ORDERED that the petition for rehearing be, and it hereby is, DENIED.
Judge Wellford would adhere to his separate opinion and would augment it as attached.
would adhere to his separate opinion. I would augment it by adding that defendant officers had a clear duty under the circumstances not to place the victim Black in harm’s way by placing her in Kritis’ vehicle while she was obviously severely intoxicated. Such defendants “must both be aware of facts from which an inference could be drawn that a substantial risk of serious harm existed], and [they] must also draw the inference.” Farmer v. Brennan,
. I believe Romer v. Evans, - U.S. -,
. I also note the death of the Boone County Sheriff.