By Adam J. Duerr
On June 16, 2006, Pueblo County Sheriff’s Department Deputy Jonathon Post struck and killed Willis Green while speeding through an intersection without his emergency lights or sirens during his pursuit of a vehicle involved in the alleged theft of $30 worth of gas. In Green v. Post, 573 F.3d 1294 (10th Cir. 2009), Green’s widow and her two children (Plaintiffs) brought suit against Deputy Post, the Pueblo County Sheriff’s Department, and the County of Pueblo. Plaintiffs asserted six state law claims and three claims under 42 U.S.C. § 1983, alleging a substantive due process violation under the 14th Amendment. Defendants moved to dismiss under F.R.C.P. 12(b)(6) two state law claims against the Sheriff’s Department in addition to the three § 1983 claims on grounds of qualified immunity. The district court converted Defendants’ motion to dismiss under F.R.C.P. 12(b)(6) to a motion for summary judgment pursuant to F.R.C.P. 56, and it granted summary judgment for Defendants on two state law claims but denied summary judgment as to the § 1983 claims. The Tenth Circuit, on interlocutory appeal, reversed and remanded the case to the district court for entry of summary judgment in favor of Defendants, entitling Deputy Post to qualified immunity.
To establish a substantive due process claim under § 1983 in accordance with the controlling case, County of Sacramento v. Lewis, Plaintiffs must show that Deputy Post acted in a manner that shocks the conscience. Defendants purport that Lewis requires Plaintiffs to demonstrate that Deputy Post acted with intent to harm the deceased, Willis Green. Plaintiffs contend that establishing that Deputy Post’s conduct was deliberately indifferent, willful and wanton, is sufficient to shock the conscience. The Tenth Circuit acknowledged that the level of culpability that shocks the conscience is elusive, requiring an analysis of the totality of the circumstances.
The intent to harm standard applies to “rapidly evolving, fluid, and dangerous situations, which preclude the luxury of calm and reflective deliberation” by the defendant. However, if the defendant is capable of “actual deliberation,” which is not defined with reference to time, a deliberate indifference standard will apply. In this case, Deputy Post’s pursuit of an alleged gas thief was neither an “instantaneous high-speed chase,” like Lewis, nor a non-emergency response. The Tenth Circuit held that because no evidence demonstrated that Deputy Post intended to harm Willis Green, Plaintiffs do not have a constitutional claim.
However, the Court next analyzed whether or not Plaintiffs had a constitutional claim under the deliberate indifference standard. Deputy Post responded within fourteen seconds to his call to investigate the gas thief, traveling at high speeds for just minutes before the accident. While deliberation is not measured by minutes or seconds, the Court reasoned that one must have “time to make unhurried judgments.” Moreover, to meet the deliberate indifference standard, the Court concluded that Deputy Post must have had “conscious, deliberate indifference to an extreme risk of very serious harm” to Willis Green, such that it shocks the conscience. Here, Deputy Post responded to a non-emergency situation; however, the call to investigate required rapid response. Thus, the Tenth Circuit held that while Deputy Post acted negligently, by speeding without activating his lights or siren through an intersection, his conduct did not meet the deliberate indifference standard that shocked the conscious. Furthermore, the Court found that, even if Deputy Post’s actions met the deliberate indifference standard establishing a constitutional violation, the law was not clearly established at the time of the accident. Therefore, Deputy Post was not on notice that his conduct could result in constitutional liability.
While other circuits have chosen to apply the intent to harm standard to all situations involving police pursuits, the Tenth Circuit has specifically chosen not adopt such a strict standard. Therefore, the chance for a plaintiff to establish a constitutional claim under a deliberate indifference standard remains. However, after this case, it still remains uncertain what circumstances and facts will rise to a conscience-shocking level under the deliberate indifference standard.