Vivian Ann Rogers v. City of Little Rock

MURPHY, Before LOKEN and Circuit WEBBER,1 Judges, Judge. District MURPHY, Judge. Circuit Rogers brought Ann this un- Vivian action § against der 42 former Little U.S.C. Morgan, police Rock officer Vincent Rock, of Little and Chief of Police Louie C. Caudell, alleging that her constitutional Morgan raped when her were violated duty. After a bench trial while he was on Morgan court2 liable in his the district found capacity Rogers awarded individual and $100,000 damages. previ- The court had city, ously against the claims dismissed Caudell, capacity. in his official Morgan and dismissals, challenges and Rogers now these appeals entered Morgan from him. affirm. against We I Morgan Little Rock officer Vincent light broken tail on stopped Rogers for a 27,1994, proof her for she August and asked indicated automobile insurance. She carried necessary papers that she did not have the her, for a tow truck Morgan and called with procedure in such a situ- which was standard tow, to cancel ation. He later decided however, followed her home his and he Rogers her house. patrol car and went into papers, Morgan to locate the and was unable that she he let her off but told her would touching and him one. He then started owed into the bedroom kissing her and led her clothes. to take off her where he told her undress, stopped began she Although she to have Morgan she did not have when said nevertheless re- him. When he sex with Webber, Wright, United Webber 2. The Honorable Susan United 1. The Honorable E. Richard Judge District of for the Eastern Judge States District for the Eastern District States District Missouri, sitting by designation. Arkansas. disrobe, Rogers genuine on peated his demand she denied the basis issue of Morgan removing her clothes. then finished material fact remained about whether the sex pushed her onto the bed and had sexual was consensual. Rogers her. said that she intercourse with trial, Rogers Morgan Both and testified hurt, Morgan her yelled because it but told Rogers the court found more credi- microphone quiet to be and covered the witness, accepted ble her version of the en- his uniform. counter, findings and made in shock Rogers testified that she was Morgan might happen if afraid and what during this that she did afraid encounter and cooperate she didn’t with a officer and do, surprised not know what to that she was that he coerced her into sexual intercourse. acting way, officer would be such specific findings leading The court also made by Morgan’s that she was intimidated to its conclusion that gun badge. place The events took dur- under color of state law at the time. The ing Morgan’s duty wearing shift when he was court concluded that was liable un- uniform, gun, badge. his He drove to Rogers’ der 1983 because he had violated Rogers’ patrol home his car and remained process right to be from free fully throughout. in his uniform dressed rejected It qual- abuse. defense of to show how said was afraid immunity ified it because concluded that he time, upset Morgan she was at the but after would have known that his were actions left she vomited and called her former hus- clearly contrary upheld Rogers’ to law. It upset band. He testified that she was battery state law claim of assault and but during cried the call. Her cousin took her to dismissed her claim of intentional infliction hospital hap- when she learned what had emotional distress. The court also found pened. Rogers damaged that was in the amount of Rogers city Morgan later sued the $100,000 for emotional distress and chief in both their individual and pain by Morgan’s caused acts. capacities. alleged official She that she had Morgan argues appeal deprived rights

been of her constitutional failed to establish Morgan that he violated her due under color of state law because process rights used his office to coerce and her intimidate since the evidence at trial alleged into nonconsensual sex. She also showed the sex was He consensual. con- department’s policy that the of not sustaining tends that he was not under color of complaints corroborating citizen without evi- state law because his actions were a substan- permissive dence created climate for abu- departure job tial from the duties his Finally, alleged sive behavior. she that the damage Rog- that the award excessive. appropriate chief to failed take measures in responds ers supports that the evidence response prior sexual misconduct Mor- finding Morgan intimidated and coerced gan and constitutional violations other having her into sex with him he did officers. so under color of state also law. She con- resulting tends that the harm she suffered granted summary judg- The district court justifies damage award. city ment for the and Chief Caudell all respects, capac- and for in his official n Rogers appeals grant from the ity. The court held there was insufficient summary judgment city to the and the genuine evidence to create a issue of material capacity. chief and to in his official policy fact about whether there was a or argues presented She that she evi sufficient failing investigate custom of or act on city dence to show that the had a allegations by police of abuse officers and disregarding complaints by against citizens whether there was evidence that the chief officers when the evidence was prior improperly ig- handled incidents complaints. complainant’s Morgan’s against nored motion for sum- word that of an mary officer, judgment capacity in his failing individual as well as to take effective support e.g. situations. See Washington action for abuse.3 Glucks remedial — department berg, from U.S. deposition evidence cites (1997) (no 2267, 138 complaints by fe- due and unsustained officials suicide); right to assisted Cruzan Di police officers of sexual harassment. male rector, Health, Dep’t Missouri and the city, arguing on behalf of itself 261, 287-88, L.Ed.2d 224 pro- has not police, responds that (1990) (no (O’Connor, J., concurring) absolute city such a duced evidence process right support to terminate life deliberately indif- policy or that the chief was incompetent). “It is now that the settled tacitly authorized constitutional ferent to or places right constitution limits on the State’s Morgan presents argu- a similar violations. person’s to interfere with a most basic deci ment. bodily integrity.” Glucksberg, sions about ---, (Souter, J., 2288-89 II concurring) (quoting Planned Parenthood v. are raised connec- A number of issues Casey, 505 U.S. appeal tion with from (1992)). right L.Ed.2d 674 has been him against entered after trial. protect employed against nonconsensual Rochin, body, intrusion into one’s see and has A permit competent right been seen to of a question person The first is whether the dis to refuse treat unwanted medical ment, Cruzan, 278-79, analyze the case see 497 U.S. at 287- trict court was correct — 2841; Quill, process clause. In her com Vacco v. under the due -, —, plaint Rogers alleged that her 138 L.Ed.2d (1997) Cruzan). fourth, fifth, sixth, eighth, (discussing and fourteenth The Su violated, preme were and it was left to Court has not had occasion to consid amendments liability § court to consider which of these er the of a state actor under 1983 the district assault, proper focus of amendments should be the for a sexual but it has held that it is necessary precedent In court analysis. its consideration the made not for there to be a Connor, applying right 490 to a “funda reference to Graham v. U.S. 386, 395, 1865, mentally in 104 L.Ed.2d 443 similar” factual situation order (1989), the facts here do to that he is and reasoned that for a criminal defendant know bodily in typical violating process right of a fourth amend the due to “not fit the mold tegrity by committing and seizure case” and that no sexual assault. Unit ment search -- Lanier, 259, have reasonable v. 520 amount of force could been ed States U.S. 1226-28, 1219, purpose having in Morgan’s to achieve non- 137 L.Ed.2d (1997). intercourse. His acts were of a 432 consensual shocking nature to the conscience the court A of circuit courts have found due number said, citing California, v. 342 Rochin U.S. process actors have violations when state 165, 205, (1952), 72 96 L.Ed. 183 In sexual abuse on individuals. an- inflicted the forced act of sexual intercourse violated involving rape by ease a officer other process right to free from Rogers’ due be stop, after a traffic the Fourth Circuit de- by physical abuse or sexual assault state process right which was vio- scribed the due actors. subjected by “right ... not to be lated as a Supreme recognized anyone acting of state law to the Court has a sub- under color physical harm.” v. process right bodily integrity wanton infliction of Jones stantive due (4th cases, Wellham, 620, 104 F.3d 628 in Rochin and a line of other even pro- particular this due declining apply it to fact The same circuit also described when (8th Cir.1997), anyway Rogers reply but this claim would fail 3. claims for the first time in her adequately developed policy disparate alleged a im- because it was not brief that the women, pact suggesting equal protection Rogers to show that an neither submitted evidence discriminatory alleged facially nor violation. Claims raised for the first time in considered, discriminatory purpose. reply See Keevan see Planet that it had a briefs will not be (8th Cir.1996). Productions, 729, Smith, 644, Shank, 100 650-51 v. 119 F.3d 732 v. F.3d Inc. 796 right “protection against Supreme

cess as unreason Court said there that fourth a bodily by in able intrusions state actors” amendment reasonableness test be should discussing applied a claim based on abusive sexual to “all claims law enforcement facility. in a state McWilliams officers used excessive force ... County Supervisors, arrest, Bd. course of investigatory stop, Fairfax — (4th 1191, Cir.), denied, cert. say other Id. ‘seizure.’” Graham did not 72, by police 136 L.Ed.2d 32 that all claims of abuse are officers involving test, a 1994 judged by case sexual abuse of school to be and the has Court by Fifth children a teacher the Circuit held advised that the case did “not all hold that “liberty there was a well-established relating physically constitutional claims bodily integrity,” in ... Tay government interest v.Doe abusive conduct must un- arise Dist., (5th lor Ind. Sch. 450-52 Eighth der either the Fourth or Amend- - Cir.1994), Lanier, and in 1992 the Ninth Circuit ment.” at n. spoke clearly bodily a established “right 1227 n. 7. Ramirez, privacy” Sepulveda step analysis The first in a (9th Cir.1992) 1415-16 (parolee ob precise “to isolate the constitutional viola supplying sample). served while a urine Our McCollan, alleged. tion” which is Baker v. applied process circuit analysis has also 61 L.Ed.2d to violation a state actor of an individual’s (1979), Graham, cited in 490 U.S. at bodily integrity. In Haberthur v. 109 S.Ct. 1865. charged has not Missouri, Raymore, using with excessive force. Her al Cir.1997), recognized we the due legation rape accomplished is one of through right to be free of unwelcome “sexual fon coercive of his status as a dling touching or other egregious sexual officer. This case is not about excessive by police contact” acting officer under color force, but rather about nonconsensual viola law plead reversed a dismissal on the bodily tion of integrity pro intimate which is

ings. process. tected substantive due No de gree sexual assault of of sexual assault officer was a violation the most intimate kind of under color prop of law could ever be bodily integrity. He forced into her er. himself here violation is different nature body way a time not analyzed could be from one that. can be part any legitimate police considered func fourth amendment reasonableness standard. tion. act Morgan’s The was not an invasion of Rogers on assault was differ also Rogers’ privacy, but of the most private place area ent in time type and from the of search body. of her of very The facts this are case and scene seizure addressed Graham. Jones, similar to those in Jones where officer See also 104 F.3d at 628. The assault stopped plaintiff suspicion driving of Rogers after occurred had been told she intoxicated, while told her she go home, would not be could and had followed her home, arrested and offered to drive her but far stop from-the scene of the traffic her, raped then separated and where the Fourth Cir in time from it. cuit held that plaintiffs the violation of the The Supreme recent decision of the Court bodily integrity process invaded her due —Lewis, County Sacramento

rights. See F.3d at 628. The district -, ---, ---, court did not err in concluding Rogers’ that 1708, 1715-16, 1717-18, 140 L.Ed.2d 1043 process right due egre violated (1998), demonstrates that a constitutional gious Morgan. sexual violation officer claim analyzed need not be under Graham argues just dissent that facts this began because the incident with a traffic analyzed case should stop be the fourth and that the “shocks the conscience” process, amendment rather than relying Lems, due validity. test to continues Connor, on Graham v. parents 490 U.S. at deprivation to sued recover for S.Ct. 1865. Graham was a involving their process right ease son’s substantive due to force stop, used at the scene of a traffic life after he was killed as a result of a Rogers’ process that the violation of said the claim should be sion due chase. The Court shocking process clause rather to the conscience. analyzed under due amendment. Id. at- than the fourth

-, explained at 1715-16. It B process of the substantive due con the core contends the evidence arbitrary cept “protection against action” process did not establish a due violation be against power “the exercise of without cause he did not use violence to commit the any justification in the service reasonable portions sexual assault. He Rogers’ cites governmental objective.” Id. at legitimate trial testimony where she admitted that he lengthy at 1716. In a discus told her she did not have to have sex with fifty year history of the shocks the sion of the him, stop that she not him did ask to it, test and the behind conscience advances, physically resist his that she took explained why appropriate this is the Court off, her own clothes and that he not did apply process due test substantive threaten or harm her. He also notes that distinguish claims and how the test serves the Internal Affairs Division of the Little amounting to abusive executive acts constitu (LRPD) Department Rock Police did not sus tional violations from breaches of common complaint prosecuting tain her and that the law duties covered tort law. Id. at- attorney bring charges declined to criminal 118 S.Ct. at 1717-18. Conduct that is against him. injure way unjustifiable “intended to in some likely by any government interest” is to be Rogers was able to establish a due at-, shocking. conscience Id. process violation absent force be at 1718. such cause violations can be based on mental Denno, Leyra coercion. See pro question threshold a due 98 L.Ed. Mor challenge by a cess to abusive conduct state process gan’s contention that no due violation govern actor is “whether the behavior of the can be established on these facts therefore egregious, outrageous, mental officer is so so fails finding unless the district court’s factual may fairly that it be said to shock the con sex was nonconsensual was clear Lewis, temporary conscience.” at- n. 52(a). error. Fed.R.Civ.P. The court found at 1717 n. 8. The evidence in this incredible claim that the inter supports case the district court’s conclusion course was consensual. He told several ver right suffered a violation of her day happened sions of what on the of the bodily integrity intimate that was con rape, throughout, remained in his clothes shocking. science This case involves an following his excuse for around her entry body into the egregious, nonconsensual (that weapon) house he was afraid she had a any which was an without exercise was inconsistent with a claim consensual legitimate governmental objective. It there transcript reviewing sex. After the trial Rogers’ fore violated substantive due giving weight to the fact that the trial right. Morgan’s rape act was an intentional superior position in to evaluate the court is produced injury and that witnesses, credibility v. Mar of see Bush “arbitrary powers was an of the exercise Center, Surgical 123 shalltown Medical and government, by unrestrained the established (8th 1130, Cir.1997), 1134 we conclude F.3d private principles right and distributive findings that the factual of the district court Lewis, at-, justice.” 118 S.Ct. at 1716 clearly not erroneous. are 516, California, (quoting Hurtado v. 110 U.S. (1884)). 527, 111, 4 28 L.Ed. 232 The S.Ct. C rape falls at the extreme end of the scale of Morgan argues that the district egregious by a state actor and was “unjustifiable finding acting in that he was by any government interest.” court erred Lewis, at-, color of law. He contends that 118 S.Ct. at 1718. The dis under state towing Rogers’ car when she did not analyzing trict court did not err in the case not home, insurance, proof going to her process under the due clause or its conclu- have 798 (1987)); 3034, see also all sub- 97 L.Ed.2d 523 having sex with her were S.Ct. then and Dist., Taylor 15 at 455. Little Doe v. Ind. Sch. departures from his duties as a

stantial he was not police officer which means Rock law, citing E

acting color of Heidemann (8th Rother, An 84 F.3d 1021 v. Morgan finally asserts that the law if acts under color of state even official $100,000 damages to awarded given him the position “abuses the he any harm to her did not excessive because capacity ... in his official State while Luckie, v. 963 rise to the level of Parrish responsibilities pursu- exercising his or while (8th Cir.1992), which the district F.2d 201 Atkins, v. 487 ant to state law.” West U.S. appropriate on to court relied determine (1988). 2250, 40 101 L.Ed.2d Compensatory damages recover award. are depends on “the nature and cir- The issue injuries including §in able 1983 actions for cumstances of the officer’s conduct and humiliation, “personal anguish mental perfor- relationship of that conduct to the Memphis Community suffering.” Sch. Humke, mance of his official duties.” Roe v. Stachura, 299, 307, 106 v. 477 Dist. U.S. (8th Cir.1997) 1213, (quoting 128 F.3d 1216 (1986) 2537, (quoting 249 v. 91 L.Ed.2d Gertz (1st Colon, 980, Martinez v. 54 F.3d Welch, Inc., Robert Cir.1995)). produced facts There were (1974)); see also authority relied on his as show Crews, Jackson officer to facilitate the assault. He Cir.1989). damage review awards for We stopped Rogers light, for a broken tail raised and ask whether abuse discretion prospect towing her car when she did arbitrary Doby v. award is or excessive. See papers, not have the insurance and later (8th Cir.1997). Hickerson, going after to her home said she owed friends, plaintiff, family, her her her exchange letting go. him a favor in her expert witness all testified to the harmful uniform, He remained testified her, impact the incident had cooperate with his she felt nature of the act and its context all contrib demands because he was a officer. to the conclusion that the award was not ute carry- thus abused his while arbitrary was also or excessive. award him ing out the official duties entrusted to type proportionate to the of harm and the state, and the district court did not err given in similar cases. Mathie v. amount See finding color of law. that he acted under state (2d Cir.1997) Fries, 813-14 $250,000 upholding

(collecting cases and com D pensatory raped damage award for inmate official). by prison Morgan claims that he was entitled qualified immunity, protects an offi which Ill cial when his conduct “does not violate clear summary ly statutory Rogers appeals judg established or constitutional person of which a would ment dismissals. She claims that there are reasonable genuine city Fitzgerald, known.” Harlow issues of fact about whether 800, 818, 102 complaints policy sustaining of not 73 L.Ed.2d 396 had properly immunity, physical abuse officers and whether The court denied however, of her consti since sexual assault vio such caused the violation subject city clearly rights. tutional In order to lated the established due by public liability Rogers must show that the right to be free of abuse “ officials, ‘policy failing act city a reasonable officer have had a or custom’ of would Lanier, upon prior complaints right. known of this 117 similar of unconstitu See (sufficient conduct, liability which the constitution S.Ct. at 1228 tional caused “ Fowler, light injury § 242 ‘in al at issue.” Andrews v. 98 1983 and 18 U.S.C. the (8th Cir.1996) 1069, (quoting pre-existing of law the unlawfulness 1075 Mo [under City the New apparent’ ’’(quoting Dep’t the Constitution nell v. Soc. Servs. is] of of of 635, York, 658, 694, 2018, Creighton, 436 U.S. 56 Anderson v. 483 U.S.

799 (1978)). investigations of her claim were a support 611 “facade to cover the L.Ed.2d deposition testimony patterns of Rogers offered the violent behavioral of officers.” Beck, LRPD Internal Af- at 974. Rogers’ Hall of the 89 F.3d evidence fails officer John complaint prove a as a matter of fairs Division who stated that law to the essential causation, not be sustained without evi- element of and her citation to Beck would support accu- or other witnesses to the is of no assistance because that case dence points sufficiency LRPD docu- also to two dealt with the of the evidence sations. She department prove policy a ments which indicate that the and did not address causation. Beck, as true accept would an officer’s statement See 89 F.3d at 972 n. 6. complaint unless the was corroborated. She city may A also be liable under argues that this created an environment § prior pat 1983 where there had been “a they which officers believed that could violate tern of unconstitutional conduct that so [was] rights impunity, with citizens’ ‘persistent widespread’ as to City by rape, citing an act of Beck v. even of law,” pattern effect force of and the (3d Cir.1996), Pittsburgh, cert 89 F.3d 966 Andrews, alleged injury. caused — denied, 137 Monell, (quoting 1075 436 U.S. at 98 2018). plaintiff city A must show “that summary court’s We review the district knowledge prior officials had of incidents of Andrews, ruling de novo. See deliberately misconduct and failed to If, viewing the facts in the F.3d at 1074. Parrish, (quoting take remedial action.” Id. light nonmoving party, favorable to most 204). Rogers 963 F.2d at cites as evidence of as a not lead a the “record taken whole could city’s inadequate reaction an earlier inci rational trier of fact to for the nonmov- find Morgan engaged in dent where sexual inter party, ‘genuine ing there is no issue for duty course with a fellow cadet while on ” trial,’ summary judgment appropri- an unsustained claim of another cadet ate. Matsushita Elec. Indus. Co. v. Zenith undisputed sexual harassment. evi Corp., Radio department dence showed that investi (1986); 89 L.Ed.2d 538 see also Fed. suspended gated both incidents and 56(c). R.Civ.P. engaging his as a result of intercourse duty. with a fellow while on This cadet Assuming purposes for the of response was sufficient as a matter of law to summary city policy judgment that the had a city responded a claim that the inade defeat ruling complaints of citizen “not sustained” prior quately to information about supporting no be

when there was evidence misconduct. account, complainant’s sides the has Rogers points Equal § liability Additionally, to establish a case for to three failed Opportunity policy Employment was not shown to have Commission sexual since such complaints caused the constitutional violation. A 1983 harassment filed female de plaintiff prove policy partment of alleged must members and list excessive moving complaints “was the force the constitu force as evidence that there was behind up prop Special city practice policy A. v. not to follow tional violation.” Jane Doe Sch. Dist., Rog erly claims atmo on such and to tolerate an adequate showing sphere There must ers has not made sexual misconduct. complaints believing showing word over the also be some officer’s merit, complainant’s the absence of other evi however. See Handle (E.D.Ark. Rock, they F.Supp. dence led officers to believe that could Little 1991) Scheib, (quoting violate citizens’ constitutional without Brooks (11th Cir.1987)). punishment. Two of the fear of The uncontested evi dismissed, allegations complaints were and a sin dence shows that all EEOC LRPD, enough genuine to raise a investigated by gle misconduct were claim is not city pattern about whether the dealt acquiescence and there was no issue fact inappropriately with sexual harassment the face of constitutional violations. Nor Moreover, took there sufficient to establish that the officers. since Chief Caudell evidence IV only one other com- there has been office officer, by an and that plaint of sexual abuse evidence at we conclude the trial Since in investigated resulted complaint was and findings of the supports the and conclusions filing for complainant of the prosecution the did not make district court and evi- police report. The submitted a false city showing against the sufficient insufficient to misconduct is dence of sexual capac- in police Morgan or his official chief of pattern city was aware of a establish that the in all ity, final re- we affirm the responded inappropriately of misconduct spects. to it. challenges dismissal Rogers also LOKEN, concurring part in Judge, Circuit Morgan in against the chief and of her claims part. in dissenting Liability city capacities. for official their capacities another in their official officials opinion, III of the court’s I concur Part city, against the and it re form of action Rog- of Vivian which affirms the dismissal showing that a quires the same Rock, City of Little against ers’s claims alleged violation. See custom caused Caudell, Morgan in Police and Officer Chief 2018; Monell, at 690 n. However, respectfully capacity. I his official Rock, City Marchant v. Little II, judg- which affirms the dissent from Part Cir.1984). (8th earlier, As discussed ment in favor of on her substantive policy was not shown to have alleged against claim Officer suffered, injury Rogers caused personal capacity. his appropri summary judgment was therefore acknowledges, “the first in- As the court ate. any § 1983 suit is to isolate the quiry Finally, Rogers that the contends precise violation with which the by dismissing her claim district court erred Connor, charged.” defendant is Graham police chief in his individual ca against the pacity there is an issue of fact about because Morgan stopped L.Ed.2d 443 Officer deliberately whether he was indifferent light, Rogers’s Ms. ear for a broken tail city employ A Morgan’s sexual misconduct. she failed to threatened to tow her car when liability § 1983 in his individual ca ee faces insurance, produce proof of and then followed adequately pacity when he fails to act into her house in search her home and went if complaints of sexual abuse he had notice These rather rou- of evidence of insurance. by sub pattern of unconstitutional conduct implicated the Fourth tine actions exhibited deliberate indiffer ordinates and people “right of the to be secure Amendment or tacit authorization of the conduct. ence to effects, houses, persons, papers, in their (8th Fowler, Bell v. See searches against unreasonable and seizures.” Cir.1996); North Little Wilson Thus, that, if question there can be no Ms. (8th Cir.1986). Rock, Rog challenging Rogers had filed 1983 claims ers cites the two incidents of sexual miscon actions, those claims any of these by Morgan as duct with fellow cadets and exclusively analyzed would be inadequately responded that the chief serts Fourth Amendment. allegations investigated, to them. Both were Morgan, suspension Rogers alleges that Officer for Ms. and one resulted law, raped her acting under color of days ten and the other was not sustained while alleges that leaving her home. She because there were no witnesses. This re before while disregard was coerced into nonconsensual sex sponse did not show a “reckless Morgan’s control and fearful of to” unconstitutional still under or deliberate indifference Barnhart, cooperate with consequences failing by Morgan. Rubek v. 814 the Graham, Supreme officer. The record that law enforce- to termi held “that all claims also shows that the chief decided Court force'— investigation into ment officers have used excessive nate after arrest, deadly course of an rape Rogers, resigned first. or not —in the but he

801 virtually per a investigatory stop, liability or other ‘seizure’ of free se Fourth Amendment analyzed the Fourth citizen should be under officers who misuse their and its ‘reasonableness’ stan- person by Amendment arrest or otherwise seize a com- dard, rather than under a ‘substantive due mitting sexual assaults. 395, process’ approach.” 490 109 U.S. hand, very significant On the other Although process 1865. interests problem pro with the court’s substantive due force, by may implicated be such excessive analysis cess is that it has no definable limits. analysis appropriate was Fourth Amendment says, degree The court “No of sexual assault provisions targeted in Graham because “both a officer law color of and, governmental the same sort of proper.” could ever be Ante at In 796. result, explicit we chose the more textual as abstract, agree. agree I can But I do not protection over the source of constitutional any any govern such sexual assault generalized more notion of substantive due employee ment process substantive due process.” County, v. 506 Soldal Cook U.S. opinions violation. As the various in Lewis (1992) 56, 70, 538, 121 450 L.Ed.2d clear, make “shock the conscience” is a re omitted). court, (quotations Yet the district defining scope strictive standard for of court, reject and now this Fourth Amend- process. Supreme substantive due The case, analysis in apparently ment this be- warned, recently Court has “We must there Morgan’s criminal cause Officer misconduct fore exercise the utmost care whenever we typical not look like a Fourth does Amend- field, ground are new asked to break this disagree. force case. I ment excessive liberty protected by lest the the Due Process Amendment, To recover under the Fourth subtly Clause be into transformed prove challenged must first that the preferences of of members this Court.” arrest, place in conduct took the course of an — Washington Glucksberg, v. U.S. investigatory stop, or The Fourth seizure. 2258, 2268, 138 772 L.Ed.2d implicated in Amendment was not the recent (1997) (citations omitted). And Court — Lewis, County v. case Sacramento “rejected has claims that the Due Process U.S. -, 1708, 140 L.Ed.2d 1043 interpreted impose Clause should be fed (1998), seizure, only because there was no analogous eral duties that are to those tradi pursuit that ended a fatal car crash. tionally imposed by state tort law.” Collins Therefore, process substantive due was City Heights, v. Harker § 1983 claim available to the unsuccess 1061, 117 112 261 Here, hand, § plaintiff. ful 1983 on the other Supreme instructed us in Court Gra stop there was an initial traffic and seizure analy process ham to avoid substantive due in continuing, allegedly followed coercive provides sis when the Fourth Amendment vestigation Rogers’s Ms. home. explicit “the more textual source of constitu setting Fourth Amendment fits the and am protection” for a claim. The tional 1983 ply protects rights. her If court when it district violated directive prove rape part cannot analyzed pursuant decided “this ease is best seizure, example, Fourth Amendment be Bone, process to the due clause.” See Cole v. Morgan’s police cause Officer work ended (8th Cir.1993); 993 Robinson began, before their sexual encounter then Charles, (8th City v. St. her substantive due claim should fail Cir.1992); Metropolitan Airports hand, Foster v. rape as well. On the other if the (8th Comm’n, Cir.1990); seizure, part of a Fourth Amendment then Fredericktown, surely will under Roach v. Officer be liable Accordingly, I the familiar Fourth Amendment reasonable would Lee, inquiry ness articulated in Winston reverse the of the district court 759-63, Rog analysis for an of Vivian remand (1985). See, Mayard e.g., L.Ed.2d 662 the Fourth Amendment. ers’s claim under (8th Cir.1997) Hopwood, 105 F.3d (police beating a handcuffed and hobbled ar- unreasonable). view, my

restee there is

nothing inappropriate imposing or unusual in

Case Details

Case Name: Vivian Ann Rogers v. City of Little Rock

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 10, 1998

Citation: 152 F.3d 790

Docket Number: 97-2286, 97-2556

Court Abbreviation: 8th Cir.