Bublitz, Lester v. Cottey, Jack ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3400
LESTER BUBLITZ, individually, and on behalf of the
ESTATES OF REBEKAH BUBLITZ and NATHANIEL BUBLITZ,
Plaintiff-Appellant,
v.
JACK L. COTTEY, individually, Marion County Sheriff,
CAPTAIN BENNY DIGGS, individually, Marion County
Sheriff’s Department, SERGEANT DAVID DURANT,
individually, Marion County Sheriff’s Department,
LIEUTENANT HARRY HALL, individually, Marion
County Sheriff’s Department,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 99-C-0167—John Daniel Tinder, Judge.
____________
ARGUED FEBRUARY 10, 2003—DECIDED APRIL 9, 2003
____________
Before POSNER, MANION and KANNE, Circuit Judges.
KANNE, Circuit Judge. Lester Bublitz, his wife Rebekah,
and his son Nathaniel became tragic, innocent victims in
a high-speed police chase near Indianapolis, Indiana.
When police officers attempted to stop a fleeing armed rob-
ber by using a tire-deflation device, his car veered across
2 No. 02-3400
the highway, colliding with the minivan in which the
Bublitz family was riding. The crash killed Mrs. Bublitz
and son Nathaniel. Mr. Bublitz brought suit against the
law-enforcement officers involved, claiming that his and
his deceased family members’ federal and state constitu-
tional rights were violated by the officers’ actions in at-
tempting to stop the fleeing robber. The district court,
finding that the defendant officers did nothing that ef-
fected a deprivation of the Bublitz family members’ rights,
granted summary judgment in favor of the defendants.
We affirm.
HISTORY
In the summer of 1997, police officers began an automo-
bile pursuit of Kevin James, who had robbed a McDon-
ald’s restaurant in Carmel, Indiana. When the Carmel
officers first attempted to stop James, he pulled away from
their marked police car and began a high-speed getaway
on the northwest side of Indianapolis. The police followed
James onto I-465, an interstate highway that circles
Indianapolis. James was unsuccessfully pursued for some
20 miles by the Carmel police officers, as well as by units
from the Indiana State Police and Marion County Sheriff’s
Department. At times, the chase reached speeds of over
100 miles per hour. Because of the risks inherent in such
a chase, it was decided that an attempt to stop James’s
vehicle should be made. Near I-465 and Rockville Road,
the police deployed a tire-deflation device, but James
was able to avoid it. A second attempt to use a tire-defla-
tion device at another location along the path of the chase
was contemplated and rejected.
Meanwhile, at the time of the pursuit, Marion County
Sheriff’s Department Sergeant David Durant was off-duty
and at home. Durant became aware of the chase on I-465
while monitoring his police radio. Because the chase
No. 02-3400 3
was nearing his home, Durant radioed his supervisor, Cap-
tain Benny Diggs, to inform him of his availability to de-
ploy another tire-deflation device. Captain Diggs approved
of Durant’s decision to use the device and directed him to
make sure that the deployment was done in communica-
tion with the pursuing officers to ensure their safety.
After speaking with Diggs, Durant drove to the Harding
Street exit off of I-465 where he parked his police car.
He crossed three lanes of traffic to the median of the
interstate highway. He saw the high-speed pursuit ap-
proaching his position. With James’s white BMW about one
mile away, Durant prepared a “Stinger Spike System”;
approximately 10 seconds before James reached him, he
deployed the spikes. After James ran over the spikes, his
car veered to the right, impacting the left side and left
rear of the Bublitz vehicle. Rebekah and Nathaniel Bublitz
were killed as a result of the collision.
Lester Bublitz, for himself and on behalf of the estates
of his deceased wife and child, brought this suit in the
Southern District of Indiana, claiming that various law-
enforcement officers1 had violated his and his family’s civil
rights. He sought relief under 42 U.S.C. §§ 1983, 1985,
1986, 1988, the Fourth and Fourteenth Amendments, and
the Indiana state constitution.2 The defendant officers
1
Bublitz originally included the City of Carmel and two Indiana
State Police troopers as defendants. The claims against the City
were dismissed by the district court on November 14, 2000, and
the state troopers were granted summary judgment in the district
court’s August 8th order. The claims against these defendants
have not been pursued in this appeal.
2
There was some dispute in the district court as to whether
Mr. Bublitz also brought claims under 42 U.S.C. § 1981, the Fifth
Amendment, and state law. The court below held that the plain-
tiff ’s amended complaint had not included a § 1981 or Fifth
(continued...)
4 No. 02-3400
moved for summary judgment, and the district court
granted their motion, ruling that Mr. Bublitz had failed
to show that either he or his deceased family members
had been deprived of their constitutional rights.
Mr. Bublitz appealed. The only issues for our consider-
ation here are whether Mr. Bublitz has presented action-
able Fourth or Fourteenth Amendment claims. Based on
the facts as described by Mr. Bublitz, we find that nei-
ther he nor his family members suffered any deprivation
of their rights under these two constitutional provisions,
and we affirm the grant of summary judgment in favor
of defendants.
ANALYSIS
We review a grant of summary judgment de novo, view-
ing all facts and taking all inferences from those facts in
a light most favorable to the nonmoving party. Chavez
v. Cady, 207 F.3d 901, 902 (7th Cir. 2000). Summary
judgment is appropriate when no genuine issue of mate-
rial fact has been raised, and the moving party is entitled
to judgment as a matter of law. FED. R. CIV. P. 56(c).
To state a claim under 42 U.S.C. § 1983, a plaintiff must
present facts sufficient to show that the defendants, acting
under color of state law, deprived him of a specific right
or interest secured by the Constitution or laws of the
2
(...continued)
Amendment claim. The court also found that references to claims
under “State Law” failed to provide adequate notice as to the na-
ture of those claims. The district court therefore did not ad-
dress claims asserted under these three provisions and, because
that decision is not challenged here, neither do we.
No. 02-3400 5
United States.3 See 42 U.S.C. § 1983 (2003); Payne v.
Churchich, 161 F.3d 1030, 1039 (7th Cir. 1998). In this
case, there is no dispute that the defendant officers were
acting under color of state law. Rather, the question is
whether, during their effort to apprehend Kevin James, the
defendants violated any constitutional rights enjoyed by
the Bublitz family.
Section 1983 is not itself a source of any substantive
rights, but instead provides the means by which rights
conferred elsewhere may be enforced. See Ledford v.
Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (citing Baker v.
McCollan, 443 U.S. 137, 144 n.3 (1979)). Our first task,
therefore, is to identify the specific constitutional or stat-
utory rights allegedly infringed. Payne, 161 F.3d at 1039
(citing Graham v. Connor, 490 U.S. 386, 394 (1989)). Those
specific rights in turn provide “ ‘the appropriate analytical
lens through which facts are to be viewed,’ ” directing us
to the proper doctrinal framework in which to address
the claims. Id. (quoting Wilson v. Williams, 83 F.3d 870,
874 (7th Cir. 1996)). In this case, Mr. Bublitz has alleged
a deprivation of his and his family’s rights under the
Fourth and Fourteenth Amendments of the federal constitu-
tion. We analyze each claim in turn to determine whether
he has sufficiently presented evidence of actual violations.
3
Our discussion of Mr. Bublitz’s § 1983 claim is sufficient to
dispose of his other claims. Section 1985 prohibits conspiracies
to interfere with civil rights, and § 1986 deals with failing to
prevent a conspiracy to violate civil rights. Section 1988 pro-
vides for an award of attorney’s fees to a prevailing party in a
civil rights action. Because we hold that neither Mr. Bublitz
nor the deceased members of his family have suffered a depriva-
tion of their constitutional rights under § 1983, there is similarly
no constitutional violation to support these other claims. In ad-
dition, Mr. Bublitz has not pressed his claims under the Indiana
constitution in this appeal.
6 No. 02-3400
A. Fourth Amendment Claim
The Fourth Amendment prohibits the governmental
seizure of a person unless that seizure is reasonable. See
U.S. CONST. amend. IV. Mr. Bublitz asserts that the de-
fendant officers violated his and his family’s rights under
the Fourth Amendment by intentionally and unreasonably
“seizing” them—that is, terminating their freedom of move-
ment—during their attempt to stop Kevin James from
evading arrest. Mr. Bublitz contends that the police, by
intentionally deploying the “Stinger Spike System” to ter-
minate James’s freedom of movement, also intentionally
“seized” the Bublitz family by terminating their freedom
of movement through the subsequent collision. It would
follow that the family had been deprived of their Fourth
Amendment rights, Mr. Bublitz’s argument continues, as
this “seizure” would have been unreasonable.
Where Mr. Bublitz’s argument fails, however, is in as-
serting that the termination of the family’s freedom of
movement amounted to a “seizure” as that term is under-
stood under the Fourth Amendment. The Supreme Court
has stated that “ ‘a Fourth Amendment seizure does not
occur whenever there is a governmentally caused termina-
tion of an individual’s freedom of movement (the innocent
passerby), nor even whenever there is a governmentally
caused and governmentally desired termination of an
individual’s freedom of movement (the fleeing felon), but
only when there is governmental termination of freedom
of movement through means intentionally applied.’ ” County
of Sacramento v. Lewis, 523 U.S. 833, 844 (1998) (quoting
Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989)
(emphasis in original)). In light of Lewis, this Court has
emphasized the distinction between “an accidental or
tortious act which happens to be committed by a govern-
mental official and an intentional detention that rises to
the level of a constitutional violation.” Campbell v. White,
916 F.2d 421, 422-23 (7th Cir. 1990) (citation omitted). In
No. 02-3400 7
Campbell, we held, consistent with the rule of Brower
and Lewis, that an officer’s action in accidentally running
over a fleeing suspect did not constitute a seizure, as the
officer’s action was not the “the means intentionally ap-
plied to effect the stop, but was rather an unfortunate
and regrettable accident.” Id. at 423 (citations omitted).
The same reasoning applies here. The police officers
involved in the high-speed pursuit of Kevin James did not
intentionally apply any means in an attempt to terminate
the freedom of movement of the Bublitz family—the
unfortunate collision between James and the Bublitzes
was not a means intended by police to stop the family,
but rather an unintended consequence of an attempt to
seize James. This would seem to preclude any finding
that the Bublitz family was “seized” by the police as a re-
sult of the crash.
Mr. Bublitz attempts to distinguish these cases by
making a kind of transferred intent argument. He notes
that James’s car was stopped or “seized” by Officer Durant’s
deployment of the Stinger Spike System—a “means inten-
tionally applied.” Because that intentional act had the
further consequence of stopping the Bublitz vehicle, the
argument goes, Durant must have intended to seize the
Bublitz car as well. But it does not follow that because
Durant intended to stop James’s car, he therefore intended
to stop any other car that could potentially become in-
volved in a subsequent collision. The subsequent collision
was instead the accidental and wholly unintended conse-
quence of an act that happened to be committed by a
government official. The Bublitz family was simply not
the intended object of the defendant officers’ attempts to
seize the fleeing James, so the Fourth Amendment is not
implicated and cannot provide the basis for a § 1983 claim.
8 No. 02-3400
B. Fourteenth Amendment Claim
Mr. Bublitz also asserts that the defendant officers
violated his and his family’s substantive-due-process rights
under the Fourteenth Amendment. The Supreme Court
has held that the Due Process Clause of the Fourteenth
Amendment includes within its ambit “ ‘protection of the
individual against arbitrary action of government.’ ” Lewis,
523 U.S. at 845 (quoting Wolff v. McDonnell, 418 U.S. 539,
558 (1974)). In reviewing exercises of executive power,
however, we must bear in mind that “only the most egre-
gious official conduct can be said to be ‘arbitrary in the
constitutional sense’ ” thus amounting to a violation of
constitutional dimensions. Id. at 846 (quoting Collins v.
Harker Heights, 503 U.S. 115, 129 (1992)).
Because the due process clause was not meant to serve
as a “font of tort law to be superimposed upon whatever
systems may already be administered by the States,” Paul
v. Davis, 424 U.S. 693, 701 (1976), only those governmen-
tal actions which involve substantial culpability are ac-
tionable under the Fourteenth Amendment. Since the
1952 case of Rochin v. California, the Supreme Court has
characterized this cognizable level of conduct as that which
“shocks the conscience.” 342 U.S. 165, 172 (1952); see
also Lewis, 523 U.S. at 846-47.
On some occasions, courts have spoken of a “deliberate
indifference” standard for measuring whether conduct
violates the Fourteenth Amendment. See Lewis, 523 U.S.
at 850-54; Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
This Court has noted that the Supreme Court in Lewis
seemed to differentiate between three distinct levels of
fault: negligence (which falls below the threshold required
for a constitutional deprivation), deliberate indifference,
and conscience-shocking. Payne, 161 F.3d at 1040. But
we have also cautioned against reading those classifica-
tions too rigidly, noting that “[d]eliberate indifference, in
No. 02-3400 9
fact, is merely the manifestation in certain situations of
a more general inquiry, which is whether the government
conduct at issue ‘shocks the conscience.’ ” Schaefer v. Goch,
153 F.3d 793, 797 (7th Cir. 1998).
To rise to the level of a constitutional violation, a deliber-
ately indifferent act must be one which is conscience-
shocking—the Supreme Court has acknowledged that
not every deliberately indifferent action will rise to the
“constitutionally shocking level.” See Lewis, 523 U.S. at 852(“But just as the description of the custodial prison situa-
tion shows how deliberate indifference can rise to a con-
stitutionally shocking level, so too does it suggest why
indifference may well not be enough for liability in the
different circumstances of a case like this one.”). The
Supreme Court has also noted that the “deliberate indif-
ference” articulation should only be used when actual
deliberation by a defendant was possible. See id. at 851
(citing Whitley v. Albers, 475 U.S. 312, 320 n.11 (1986)). It
was this last observation that led the Court to conclude
that the deliberate-indifference standard is inappropriate
to high-speed police-chase settings. Id. at 853-54.
In this case, much of the argument goes to whether the
shocks-the-conscience or the deliberate-indifference stan-
dard is the appropriate benchmark by which to determine
if the defendant officers’ conduct violates the Fourteenth
Amendment. Mr. Bublitz attempts to distinguish Lewis
by noting that Officer Durant had at least three to five
minutes in which he had to decide whether to deploy the
spikes, giving him adequate time to deliberate. The offi-
cers counter that the circumstances of a high-speed
police pursuit—which entail constantly changing condi-
tions—do not lend themselves to careful and considered
deliberation. But we need not choose between the two
formulations of the constitutional standard (even assuming
they present different inquiries), as we believe that Mr.
Bublitz has not presented facts which rise to either level.
10 No. 02-3400
At most, Mr. Bublitz has described a scenario in which
Durant may have been negligent in deciding to deploy his
Stinger Spike System, but mere negligence is insufficient
to give rise to a constitutional violation under the Four-
teenth Amendment. Id. at 849 (“[L]iability for negligently
inflicted harm is categorically beneath the threshold of
constitutional due process.” (citations omitted)).
In our evaluation of the grant of summary judgment, we
must assume that Officer Durant had adequate time to
deliberate on the use of the Stinger system. Taking into
consideration the rapidly and constantly changing condi-
tions, Durant would have been required to assess traffic
conditions, as well as the position of the fleeing suspect
and pursuing officers, as they existed at the moment be-
fore deployment. But that does not lead to the conclusion
that he acted with complete disregard for the potential
consequences of his actions. Deciding whether to deploy
the Stinger system meant weighing a number of poten-
tial risks, including the risk posed by allowing the high-
speed chase to continue on public streets. Given that a
similar tire-deflation device had been used (unsuccess-
fully, but without incident) earlier in the chase, and that
Durant had participated in another high-speed chase that
had been successfully ended by the use of stop sticks, it is
not reasonable to assume that Durant knew with any
certainty that his use of the Stinger system in this instance
would have resulted in a collision impacting innocent
bystanders. Thus, it would be incorrect to say that Durant
knew of an excessive risk that using the system under the
conditions then existing would cause a collision, but nev-
ertheless proceeded to deploy the deflation device.
The shocks-the-conscience standard also requires more
than what Mr. Bublitz has presented here. While the
standard is “no calibrated yard stick,” id. at 847, it does, as
we have noted, require substantial culpability. It is gen-
erally only deliberate action intended to harm another
No. 02-3400 11
that is the type of conduct targeted by the Fourteenth
Amendment: “[C]onduct intended to injure in some way
unjustifiable by any government interest is the sort of
official action most likely to rise to the conscience-shock-
ing level.” Id. at 849 (citing Daniels v. Williams, 474 U.S.
327, 331 (1986)) (emphasis added). In fact, in applying
the rule from Lewis, we have held that, “The sine qua non
of liability in cases analogous to high-speed chases, there-
fore, is a purpose to cause harm.” Schaefer, 153 F.3d at
798 (quotation omitted).
Here, all that the police officers did was deploy a tire-
deflation device (or authorize its deployment) in the hope
that it would stop James’s flight. Mr. Bublitz makes no
accusation that the defendants intentionally misused
the device, or that they intended to cause a collision that
would include the vehicles of innocent bystanders. Cf.
Checki v. Webb, 785 F.2d 534, 538 (5th Cir. 1986) (“When
a citizen suffers physical injury due to a police officer’s
negligent use of his vehicle, no section 1983 claim is
stated. . . . It is a different story when a citizen suffers or
is seriously threatened with physical injury due to a po-
lice officer’s intentional misuse of his vehicle.” (citation
omitted) (emphasis in original)). Because Mr. Bublitz
does not seek to prove any intention or purpose on the
part of the defendants to cause harm to the Bublitz fam-
ily during the course of the high-speed chase, he cannot
show that what the officers did deprived him or his fam-
ily of their Fourteenth Amendment rights.
CONCLUSION
Mr. Bublitz suffered a tragic loss when his wife and
child were killed during the police pursuit. He has not,
however, provided facts which can reasonably lead to the
conclusion that the police conduct that precipitated his
loss rose to the level of a constitutional violation under
12 No. 02-3400
either the Fourth or Fourteenth Amendments. Accordingly,
summary judgment in favor of the defendant officers is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-9-03