Estate of Amos Ex Rel. Amos
Jamie McAlister, Esq., Jamie McAlister Law Offices, Llc, Phoenix, Arizona, for the plaintiff-appellant.
David C. Lewis, Esq., Jones, Skelton & Hochuli, Phoenix, Arizona, for the defendants-appellees.
Appeal from the United States District Court for the District of Arizona Roger G. Strand, District Judge, Presiding D.C. No. CV-98-01824-RGS
Wallace, Circuit Judge
1 Walter Amos (Trustee), trustee of the estate of his deceased son, Burton Amos (Amos), appeals from a decision of the district court dismissing his action for failure to state a claim under
I.
3 When Page police officers arrived at the scene they were informed by witnesses that, immediately following the accident, Amos got out of his car and either walked, stumbled, or jogged into the desert. The officers halted civilian search efforts, instructing the people who had stopped at the scene to leave the accident site. Upon inspecting Amos‘s car, they discovered blood inside, and two officers began following a set of tracks leading into the desert which evidenced a person running or jogging, stumbling and kneeling, and going in circles. The officers cut short their search, however, when their flashlights lost power. A helicopter called to assist in the search quickly abandoned its effort due to concerns stemming from nearby power lines.
4 The police did not resume their search the next day, and no subsequent search was conducted until November 21, 1996, when Trustee arrived in Page expressing concern to the Page Police Department about the whereabouts of his son. The police agreed to search the area surrounding the accident site again but were unsuccessful (as they were when they searched two weeks later on December 4, 1996). Private search efforts conducted by Trustee were also fruitless. Amos‘s remains were ultimately discovered in a pile of rock debris at the bottom of Glen Canyon by European tourists in September 1999, almost one year after Trustee filed his complaint.
5 To assist in the search for Amos, Trustee retained the services of an attorney. On February 26, 1997, the attorney spoke with the Page City Attorney, who commented that because Page is a border town and is surrounded by the Navajo Reservation, it is common for drivers to flee the scene of an automobile accident in an attempt to cross into neighboring Utah or onto the Reservation -both within relatively easy striking distance on foot -where the Page Police Department does not have jurisdiction. The City Attorney explained that, in particular, Native Americans involved in car accidents often leave the scene, abscond to the reservation, and call the police the following day to report their vehicle as stolen. He indicated that this behavior is so common in the area that it is standard practice for the police not to conduct thorough searches for runaway drivers because they suspect most are Native Americans who will call in the next day.
II.
6 Trustee contends that the City deprived Amos of substantive due process rights to life, personal security, and bodily integrity, as guaranteed by the
7 In general, the state is not liable for its omissions. See DeShaney v. Winnebago County Dep‘t of Soc. Serv., 489 U.S. 189, 195 (1989). As the Supreme Court stated in DeShaney:
[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens . . . . The Clause is phrased as a limitation on the State‘s power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without `due process of law,’ but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.
10 There are two exceptions to the general rule that a state‘s failure to protect an individual from danger does not constitute a violation of the Due Process Clause. Huffman v. County of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998). First, the “special relationship” exception states that “when the State takes a person into its custody and holds him there against his will, the Constitution imposes some responsibility for [that person‘s] safety and general well-being.” Huffman, 147 F.3d at 1058-59 (internal quotation omitted) (alteration in original; emphasis added). Trustee clearly does not state a claim under this exception as Amos was never in the custody of the state; he fled the scene of the accident and disappeared before the police arrived on the scene. No authority supports Trustee‘s assertion that the police exercised “de facto custody” over Amos by exercising geographic control over the surrounding area of the accident; we reject this contention.
11 The second exception to the DeShaney rule -the “danger creation” exception -“exists where the state affirmatively places the plaintiff in a dangerous situation.” Huffman, 147 F.3d at 1059. The ” `danger creation’ basis for a claim . . . necessarily involves affirmative conduct on the part of the state in placing the plaintiff in danger.” L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992) (emphasis added); Huffman, 147 F.3d at 1059.
12 To determine whether the Page police officers affirmatively placed Amos in danger, we must focus on “whether the officers left [Amos] in a situation that was more dangerous than the one in which they found him.” Munger v. City of Glasgow Police Dep‘t, 227 F.3d 1082, 1086 (9th Cir. 2000); see also Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997). For example, in Munger, where the plaintiffs’ late son died of hypothermia,
13 [t]he officers affirmatively ejected Munger from a bar late at night when the outside temperatures were subfreezing. They knew that Munger was wearing only a t-shirt and jeans, and was intoxicated, was prevented by the officers from driving his truck or reentering [the] [b]ar, and was walking away from the nearby open establishments.
14 Id. at 1087. Present in Munger, and common to our cases recognizing a cognizable section 1983 claim under the “danger creation” exception, is an affirmative act by the police that leaves the plaintiff “in a more dangerous position than the one in which they found him.” Penilla, 115 F.3d at 710 (police responded to a 911 call, found Penilla in urgent need of medical care, canceled the request for paramedics, moved him inside his house, locked the door, and left); see also Kneipp v. Tedder, 95 F.3d 1199, 1209 (3d Cir. 1996) (police detained Kneipp, who was drunk, and let her walk home alone on a cold night).
15 In this case, Amos‘s car crossed the center line on a highway and collided with another car for reasons unrelated to the actions of any officer. The police officers arrived on the scene after the accident had occurred and after Amos had disappeared into the desert; there was no interaction between the officers and Amos. Thus, “[w]hile the State may have been aware of the dangers that [Amos] faced . . . it played no part in their creation, nor did it do anything to render him any more vulnerable to them.” DeShaney, 489 U.S. at 201. Amos was in great danger before the officers appeared. Although in theory a very poor rescue attempt could make those needing rescue worse off than if the attempt had not been made, the probability that the conduct of the police officers in this case actually made Amos worse off is extremely speculative. “If the defendants deprived [Amos] of anything it was of some right to competent rescue services. But . . . there is no such right in the
17 We need not decide whether we agree with the Seventh Circuit as Ross is not controlling.
18 Ross is an unusual case, and its egregious facts and “stunning abuse of governmental power,” Ross, 910 F.2d at 1424, are distinguishable from the case before us. In Ross, both the child‘s location and risk of death were known, and wellequipped and trained would-be rescuers were on the scene and ready to begin rescue efforts when the Deputy Sheriff arrived and ordered them to stop. Id. at 1424-25. Thus, the chances of a successful rescue were high, and the link between the Deputy‘s conduct and the child‘s death was proximate. The Deputy Sheriff physically prevented rescue efforts, threatened to arrest scuba divers who said they would attempt the rescue at their own risk, and positioned his boat so as to prevent their dive. Id. at 1425. Under these circumstances, the court held that “a reasonable police officer in [the Deputy Sheriff‘s] position should have known that he could not use [his] authority to prevent private rescue efforts.” Id. at 1433.
19 In the present case, Amos fled into the desert after colliding with another car at night on the highway. When the police arrived on the scene, his location and the extent of his injuries were unknown. Civilian “rescue” efforts consisted of little more than a few passing drivers who had stopped on the side of the road to help search the immediate surroundings for the missing driver. Trustee does not allege that any of the civilians possessed special safety training or skills, and there is no reason to believe that their rescue efforts would have been successful had the police not intervened. Thus, the facts in this case (as alleged by Trustee), while describing a bungled and ineffectual police search, are much less troubling than those in Ross, and do not demonstrate that the Page police officers were aware of a known and significant risk of death “yet consciously chose a course of action that ignored the risk.” Id. at 1433. Unlike in Ross, the probability that the officers’ conduct made Amos worse off is extremely speculative, and “the unlikelihood that [Amos] would have been saved . . . if the state had not attempted to rescue [him] shows how artificial it is to argue that the defendants deprived [Amos] of [his life].” Jackson, 715 F.2d at 1205. While the police officers’ search may have been incompetent, lacking in scope and duration, any danger that presented itself to Amos as a result of the state‘s action or inaction did not implicate due process. We affirm the district court‘s dismissal of Trustee‘s substantive due process claim.
III.
21 Standing is a question of law reviewed de novo. Stewart v. Thorpe Holding Co. Profit Sharing Plan, 207 F.3d 1143, 1148 (9th Cir. 2000). To satisfy
22 At first blush, Trustee would thus appear to face a substantial standing hurdle because “[a] white plaintiff generally does not have standing under Section 1983 solely for the purpose of vindicating the rights of minorities who have suffered from racial discrimination.” Maynard v. City of San Jose, 37 F.3d 1396, 1402 (9th Cir. 1994). Following Halet, the district court held that Trustee does not have standing pursuant to the “only effective adversary” exception because he “is in no better position to challenge Defendants’ alleged policy than a Native American.”
23 However, the district court‘s analysis does not come to grips with Trustee‘s complaint. Trustee asserts Amos‘s “own rights and interests,” Halet, 672 F.2d at 1308 (emphasis added), to be free from discrimination and he “is not suing on behalf of anyone else,” Maynard, 37 F.3d at 1403. This is not a third-party standing case. Therefore, Halet does not control. Trustee alleges that Amos was the direct target of the City‘s discrimination because the police officers mistakenly believed he was a Native American and, based on that belief, selectively denied him the City‘s protective services. Thus, this case falls outside the Sullivan line of cases, which addresses plaintiffs who are not members of a protected class but who allege injuries personal to them that stem from discrimination against people who do belong to a protected class. For example, in Halet, the white plaintiff, whose family was denied an apartment due to a building‘s adults-only rental policy, alleged that the policy violated his right to live with his family and was racially discriminatory because it had a greater impact on minorities than whites. 672 F.2d at 1307. We held that the plaintiff did not have standing to challenge racial discrimination against minorities because “he [was] in no better position to bring [the] action than a black person denied an apartment because of minor children.” Id. at 1308. In Maynard, the plaintiff, a city employee, discovered and disclosed irregularities in his department‘s hiring process and aided a black employee in complaining about the department‘s practices. 37 F.3d at 1402-1403. The plaintiff alleged that over the next few years his superiors “conducted an ongoing campaign of retaliation” because he aided a black person. Id. at 1400. We held that “[u]nlike the plaintiff in Halet, Maynard is not suing on behalf of anyone else. He [1] asserts his own right to be free from retaliation, [2] alleges injuries that are personal to him, and [3] is the only effective plaintiff who could bring this suit.” Id. at 1403.
IV.
25 Last, Trustee alleges, pursuant to City of Canton v. Harris, 489 U.S. 378 (1989), that the City‘s inadequate police training deprived him of his constitutional rights. The district court dismissed Trustee‘s inadequate training claim based upon its dismissal of Trustee‘s due process and equal protection claims. Citing Quintanilla v. City of Downey, 84 F.3d 353, 355 (9th Cir. 1996), the district court held that because “an individual may recover under §§ 1983 only when his federal rights have been violated,” Trustee cannot bring a Canton claim because he suffered no constitutional harm.
26 To prevail on his Canton claim, Trustee must have sufficiently alleged that: (1) Amos was deprived of his constitutional rights by the City acting under color of state law; (2) that the City has customs or policies which amount to “deliberate indifference” to Amos‘s constitutional rights; and (3) that these policies were the “moving force behind the constitutional violations.” Lee, 240 F.3d at 767 (internal quotations omitted); see also Oviatt ex rel. Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992). “In this circuit, a claim of municipal liability under section 1983 is sufficient to withstand a motion to dismiss even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, custom, or practice.” Lee, 240 F.3d at 768 (internal quotations omitted). However, “a public entity is not liable for §§ 1983 damages under a policy that can cause constitutional deprivations, when the factfinder concludes that an individual officer, acting pursuant to the policy, inflicted no constitutional harm to the plaintiff.” Quintanilla, 84 F.3d at 355, citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). If a person has suffered no constitutional injury at the hands of the police, the fact that the police department and city might have maintained a policy or custom authorizing constitutional violations “is quite beside the point.” Heller, 475 U.S. at 799.
27 Trustee sufficiently alleges that the City maintained a policy that “amount[ed] to deliberate indifference” to Amos‘s constitutional rights and that the policies were “the moving force behind the constitutional violation.” Lee, 240 F.3d at 767. The only question is whether Trustee sufficiently alleges that the City‘s conduct deprived Amos of his constitutional rights.
28 Trustee alleges violations of Amos‘s substantive due process and equal protection rights under the
29 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED