Loretta Johnson v. City of Unalakleet , 490 F. App'x 851 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 13 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORETTA A. JOHNSON, individually; et No. 11-35054
al.,
D.C. No. 3:10-cv-00034-RRB
Plaintiffs - Appellants,
v. MEMORANDUM*
CITY OF UNALAKLEET and GEORGE
TURNER,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted June 25, 2012
Anchorage, Alaska
Before: GOODWIN, W. FLETCHER, and M. SMITH, Circuit Judges.
Dane Johnson became intoxicated and drove his four-wheeler down the
main street of the City of Unalakleet. While driving erratically and on the wrong
side of the road, he ran his four-wheeler over a ten-year-old girl. The collision
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
seriously injured her and knocked her unconscious. A few minutes later, Officer
Turner arrived at the scene, hand-cuffed Johnson with his hands in front, and
placed him in the back of his police car without first frisking him. Over the next
several minutes, Officer Turner tended to the unconscious victim, managed the
crowd that had gathered, called dispatch several times to request paramedics and a
state trooper, interviewed witnesses, and prevented the victim’s father from
retaliating against Johnson. Officer Turner also returned to the police car to tell
Johnson that the victim would probably be all right. Twelve minutes after Officer
Turner arrived at the scene, Johnson shot and killed himself with a handgun he had
concealed on his person.
Johnson’s parents and estate (the Appellants) sued Officer Turner and the
City of Unalakleet (the City) under 42 U.S.C. § 1983. The Appellants argue that
Officer Turner violated Johnson’s due process rights by failing to protect Johnson
from self-inflicted harm while Johnson was in police custody, and they argue that
the City violated Johnson’s due process rights by failing to properly train or
supervise police officers in suicide prevention. The district court granted qualified
immunity to Officer Turner and the City, and the Appellants appealed. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
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To be cognizable as a violation of due process rights, a police officer’s
conduct must “shock the conscience.” Cnty. of Sacramento v. Lewis, 523 U.S. 833,
846 (1998); Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). In a fast-paced
situation in which actual deliberation by the officer is not practical, “only a purpose
to cause harm unrelated to the legitimate object of arrest will satisfy the element of
arbitrary conduct shocking to the conscience, necessary for a due process
violation.” Lewis, 523 U.S. at 836.
The undisputed facts in this case show that, in the twelve minutes between
Officer Turner’s arrival at the scene and Johnson’s suicide, actual deliberation by
Officer Turner was not practical. Officer Turner was too busy tending to the
medical needs of the victim, requesting resources, and managing the crowd to
seriously evaluate whether Johnson was in danger of self-inflicted harm.
Therefore, the Lewis “purpose to cause harm” standard applies.
The Appellants have not provided any evidence that Officer Turner acted
with a purpose to harm Johnson. Accordingly, Officer Turner did not violate
Johnson’s right to due process, and qualified immunity was properly granted.
Turning to the Appellants’ claim against the City, we note that “proper
analysis requires us to separate two different issues when a § 1983 claim is asserted
against a municipality: (1) whether plaintiff’s harm was caused by a constitutional
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violation, and (2) if so, whether the city is responsible for that violation.” Collins
v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992); accord Connick v.
Thompson, 131 S. Ct. 1350, 1358 (2011). We have already determined that
Johnson’s harm was not caused by a constitutional violation. Therefore, there is no
need to discuss the City’s responsibility for conduct that was not a constitutional
violation.
The Appellants’ claim against the City relies on several tort-like theories
about the reasonableness of the City’s policies. The Supreme Court, however, has
“rejected claims that the Due Process Clause should be interpreted to impose
federal duties that are analogous to those traditionally imposed by state tort law.”
Collins, 503 U.S. at 128.
Finally, the Appellants rely on Conn v. City of Reno, 591 F.3d 1081, 1103
(9th Cir. 2010), but the cited portions of that opinion were overruled by Connick,
131 S. Ct. 1350. See Conn v. City of Reno, 131 S. Ct. 1812 (2011) (vacating the
judgment in light of Connick); Conn, 658 F.3d 897 (9th Cir. 2011) (reinstating
only some portions of the opinion).
AFFIRMED.
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