White v. Rochford

SPRECHER, Circuit Judge.

The issue presented by this case is whether police officers may, with constitutional impunity, abandon children and leave thpm in health-endangering situations after having arrested their custodian and thereby deprived them of adult protection. We hold that they may not, and accordingly, we reverse the district court’s dismissal of a complaint alleging such facts and remand for trial.

I

This case arises from the district court’s grant of a motion to dismiss the complaint. Accordingly, we must accept the allegations of the complaint as true in order to determine whether a cause of action under 42 U.S.C. § 1983 (1970) was stated. The complaint reveals that on the evening of October 24, 1976, the appellants, two minor children, as well as their cousin, another minor, were riding in an automobile driven by the appellants’ uncle. While driving on the Chicago Skyway, a busy, limited-access highway, the uncle was stopped and arrested by the defendant police officers and charged with drag racing. Although the uncle pleaded with the officers to take the children to the police station or phone booth so that they could contact their parents, the defendant officers refused to provide any such aid. Instead, they left all three children in an abandoned automobile on the side of the road. Under exposure of the cold, the children finally realized that they had no alternative but to leave the car, cross eight lanes of traffic and wander on the freeway at night in search of a telephone. Upon finally reaching a telephone, the appellants called their mother. Since their mother had no car with which to search for and retrieve the children she called the Chicago Police Department, which again refused to lend any assistance. After a prolonged, but unspecified, length of time, the children were at last retrieved by a neighbor. As a result of this experience it is alleged that both children suffered mental pain and anguish and that the five-year-old child, an asthmatic, had to be hospitalized for one week.

II

Thus, the issue before this court is whether the unjustified and arbitrary refusal of police officers to lend aid to children endangered by the performance of official duty violates the constitution where that refusal ultimately results in physical and emotional injury to the children. We hold that such conduct indisputably breaches the Due Process Clause.

Although it would be impossible to catalogue and to describe precisely each “liberty” interest protected by the Due Process Clause,¹ it can hardly be doubted that chief among them is the right to some degree of bodily integrity. As the Supreme Court recently stated: “Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for unjustified intrusions on personal security.” Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1976). Accordingly the Due Process Clause is implicated where a policeman uses excessive force in the apprehension of a suspect,² withholds needed medical assistance from someone in his custody,³ or even when a public school teacher inflicts corporal punishment on a student,⁴ or forces him to cut his hair.⁵

Not only does the Due Process Clause restrain undue incursions on personal security, but also it restrains state activities which are fundamentally offensive to “a sense of justice” or which “shock the conscience.” Rochin v. California, 342 U.S. 165, 172, 173, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Although state actions prohibited under this Due Process analysis may involve incursions on personal physical integrity, such as the induced vomiting disapproved by the Court in Rochin, this need not always be the case. In Duncan v. Nelson, 466 F.2d 939 (7th Cir.), cert. denied, 409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 152 (1972), this court held that an involuntary confession could serve as a basis of a § 1983 action against the police officers responsible even though no physical force was used in the extraction of the confession and even though the officers could not have been held liable for the period of incarceration caused by the trial court’s admission of the confession and resultant conviction of the defendant. As we noted there: “Although physical violence would ordinarily make damages greater and more easily ascertainable, we see no reason in either logic or experience to require . . . physical violence as a necessary prerequisite to suit under § 1983.” Id. at 945.

Under either of these interpretations of the Due Process Clause, the complaint sufficiently alleged a deprivation of rights secured by the Constitution sufficient to state a claim under § 1983. Under the first theory it is sufficient that the defendants left helpless minor children subject to inclement weather and great physical danger without any apparent justification. Certainly this would be a patently clear intrusion upon personal integrity if the defendants had discharged children they were transporting on the Chicago Skyway on a cold evening, and it seems incongruous to suggest that liability should turn on the tenuous metaphysical construct which differentiates sins of omission and commission.⁶ Indeed, the only factor differentiating this clear hypothetical from the case at hand is the fact that whereas the hypothetical clearly involves intentional actions, the present case may not evidence an intent to injure the children as much as a neglect of their safety. However, even this difference would not justify differentiating the cases. It is clearly established that although officials may not be held liable for simple negligence, they may be held liable for “gross negligence” or “reckless disregard” for the safety of others.⁷ In the case before us the police could not avoid knowing that, absent their assistance, the three children would be subjected to exposure to cold weather and danger from traffic. This indifference in the face of known dangers certainly must constitute gross negligence.⁸

Thus, as to the five-year-old plaintiff whose asthma was aggravated, his cause of action is well within that encompassed by § 1983 arising, as it does, from allegations of intentional or grossly negligent acts or failures to act leading to physical injury. Admittedly the case for the other defendant who alleges only psychological injury is somewhat closer, but we nonetheless feel that the protections of the Due Process Clause against arbitrary intrusions on personal security includes both physical and emotional well-being. This position arises directly from the recent Supreme Court opinion in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Carey involved issues of the appropriate measure of damages in a § 1983 action by high school students seeking monetary damages for their suspension from school without Due Process. The Court in discussing these issues enunciated the over-arching principle that “to further the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question . . . .” Id. at 258-59, 98 S.Ct. at 1050. The Court stated that even if the suspensions were justified, the plaintiffs would be entitled to damages upon proof of “mental and emotional distress,” since one of the interests protected by the Due Process Clause is the individual’s “feeling of just treatment” or “feeling that the government has [treated] him fairly.” Id. at 261-64, 98 S.Ct. at 1051. If the Due Process Clause protects such an interest it is clear that its protection of personal security must necessarily extend to aspects of emotional well-being. Indeed, a child abandoned by policemen on a cold, dark highway must suffer more acutely from a feeling of unjust treatment than a high school student suspended from school.

Notwithstanding these considerations of the Due Process Clause’s restrictions on unjustified intrusions on personal integrity, the second aspect of the Due Process Clause’s protection — the prohibition against state actions which “shock the conscience” or run counter to fundamental notions of fairness — would also support a § 1983 cause of action here. Initially it should be pointed out that, as in Rochin, “[a]ll the . judges who have expressed themselves in this case have condemned the conduct in the strongest language.” 342 U.S. at 174, 72 S.Ct. at 210. It seems difficult to understand how conduct so clearly deserving of universal reprobation can be said to fall outside of the protections of the Due Process Clause, a clause which “inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.” Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 789, 89 L.Ed. 1029 (1945) (Frankfurter, J., concurring opn.). Certainly if that clause can serve as a basis of § 1983 damages for obtaining a confession by lengthy interrogation of the plaintiff after extended confinement, it should also encompass the outrageous conduct alleged in the complaint before this court.

The arguments advanced in opposition to this analysis by Judge Kilkenny’s dissent, particularly its reliance on Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), are unpersuasive. The dissent forwards two reasons for not finding the Due Process Clause to be implicated by the conduct alleged in this case. First, the dissent says, it was the uncle’s illegal activities that caused the children to be stranded, not any actions by the police. Notwithstanding the fact that the record before us indicates no ultimate disposition of the drag racing charge, this argument is overbroad. It could be said in every case of excessive force by arresting officers, a well-established violation of the Due Process Clause,⁹ that the cause of the plaintiff’s injuries was the plaintiff’s misconduct, certainly a more compelling reason to avoid application of the Due Process Clause than the third party’s misconduct relied on by the dissent. Second, the dissent argues, the children were in the same position as if the motor of the car had failed. Although it is not clear what force this argument is believed to have, it also seems to suffer from over-breadth, viz., the victim of excessive force might have fallen and hit his head instead of having it beaten with a blunt object. See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). Finally, the reliance on Paul v. Davis, is misplaced. Although Paul v. Davis does stand for the proposition that not every state-inflicted injury gives rise to a cause of action under § 1983, both that case and Screws, from which incomplete quotations are given, also affirm the undisputed principles that a cause of action is created where acts under color of law deprive an individual of a right secured by the Constitution. Paul v. Davis, 424 U.S. at 700, 96 S.Ct. 1155; Screws v. United States, 325 U.S. at 109, 65 S.Ct. 1031. Nothing in Paul’s holding that an individual’s reputation is not protected by the procedural guarantees of the Due Process Clause¹⁰ can be construed as retreating from the position that an individual’s right to be free from unjustified intrusions upon physical and emotional well-being is protected by the substantive guarantees of that clause.

Plaintiffs conceded at oral argument that the judgment should be affirmed as to the first named defendant, James M. Rochford, Superintendent of Police, who is not alleged to have participated in the acts of which plaintiffs complain. Accordingly, the judgment is affirmed as to him.

As to the other defendants, the judgment is reversed, and the case is remanded for trial.

Reversed and Remanded.

1 . It is important to keep in mind the breadth of the rights protected by the Due Process Clause. As the Supreme Court stated in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923):

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

Id. at 399, 43 S.Ct. at 626. Accordingly, the Due Process Clause restrains the state from forbidding instruction of children in a foreign language; Meyer v. Nebraska, 262 U.S. at 399, 43 S.Ct. 625, impeding access to a private or parochial education; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); or forcing individuals to undergo compulsory sterilization; Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1925). One common strain uniting these decisions is important to this case. Obviously, these cases evidence a particular emphasis by the Due Process Clause on the integrity of the parent-child relationship. See Alsager v. District Court, 406 F.Supp. 10 (S.D.Iowa 1975), affd, 545 F.2d 1137 (8th Cir. 1976) (child custody encompassed within liberties protected by Due Process Clause). It is difficult to believe that this relationship is any less harmed by depriving children of adult care and stranding them on a freeway than by controlling school curricula.

2 . See, e. g., Bellows v. Dainack, 555 F.2d 1105 (2d Cir. 1977); Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975), cert. dismissed, 429 U.S. 118, 97 S.Ct. 514, 50 L.Ed.2d 269 (1976); Williams v. Liberty, 461 F.2d 325 (7th Cir. 1972).

3 . Green v. Cauthen, 379 F.Supp. 361 (D.S.C. 1974). See also Mullins v. City of River Rouge, 338 F.Supp. 26 (E.D.Mich.1972).

4 . Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). It is important to understand that Ingraham’s refusal to invalidate corporal punishment under the rubric of procedural due process was based only on its finding that existing state proceedings provided all the process that was due.

5 . Holsapple v. Woods, 500 F.2d 49 (7th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974).

6 . At least one opinion of this circuit accepts this distinction, requiring under § 1983- — as does the common law of torts — that acts of omission serve as a basis of liability only where there is an affirmative duty to act. Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972). We need not, however, reach the validity of the omission-commission distinction since the result is the same under either theory. In Byrd the court found police officers liable under § 1983 for failing to restrain fellow officers committing acts of brutality in their presence. The court based this liability for acts of omission on the policeman’s “duty to enforce the laws and preserve the peace." Id. at 11. See also Huey v. Barloga, 277 F.Supp. 864, 872 (N.D.Ill.1967) (“Police officers are under an affirmative duty to preserve law and order, and to protect the personal safety of persons in the community”).

Illinois also recognizes a similar affirmative duty under the common law, although it is somewhat narrower than the duty developed under section 1983 by Byrd and Huey. In Gardner v. Village of Chicago Ridge, 71 Ill. App.2d 373, 219 N.E.2d 147 (1966), the court upheld a cause of action by a minor child, alleging that police officers had failed to protect him from being beaten by four other youths in police custody. The court stated that although there is no general duty to provide police protection to the general public (unlike the duty we have suggested exists under section 1983), there may arise instances where the police owe such a duty to a particular individual. The fact which gave rise to such a duty in that case was that the police officers had asked the plaintiff to accompany them to aid in the apprehension of the four youths. This case can be read to stand for the proposition that where police actions are a cause, albeit not a direct one, of the plaintiff’s endangerment, an affirmative duty to protect the plaintiff arises. See also Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534 (1958).

This affirmative duty is made explicit with regard to the abandonment of children by 111. Rev.Stat., ch. 23, § 2368 (1975), which provides:

Any person who shall wilfully and unnecessarily expose to the inclemency of the weather, or shall in any other manner injure in health or limb, any child, apprentice or other person under his legal control shall be guilty of a Class 4 felony.

The concept of “legal control” has been broadly construed beyond the bounds of parental relationships or other relationships entailing a responsibility for support or upbringing. In People v. Parris, 130 Ill.App.2d 933, 267 N.E.2d 39 (1971), the court held that a stepfather’s actions towards his wife’s children were encompassed by this section, despite the fact that the stepfather had no legal right to custody or control of the children. The court premised this holding on its finding that the stepfather was in loco parentis to the children. Presumably this holding results in bringing the teacher-pupil relationship within the statute. See Ill. Rev.Stat., ch. 122, §§ 24-24, 34-84a (1975).

Once “legal control” has been divorced from the setting of parental or other relations involving responsibility for support and upbringing, there is no way to prevent its application to policemen who, by virtue of their actions, have come into control of minor children. Certainly the officers had sufficient control of the children in this sense to have shielded them from any liability for the technical assault and imprisonment involved in transporting the children to a safe place. See also Ill.Rev.Stat., ch. 70, § 61 (1975) (“Good Samaritan” Act).

The same affirmative duty to protect children is imposed by a similar statute, Ill.Rev.Stat., ch. 23, § 2354 (1975), which makes it unlawful for any person “having the care or custody” of a child “to permit such child to be placed in such a situation that its life or health may be endangered.” The phrase “care” is much broader than “legal control” and unquestionably extends beyond the bounds of parental or other relationships involving support and discipline obligations. See People v. Vandiver, 51 Ill.2d 525, 283 N.E.2d 681 (1971), where the Illinois Supreme Court applied this section to a stepfather without, as in Parris, any examination of the specific facts of the relationship between the defendant and the child to determine whether the defendant stood in loco parentis.

Of course, it is not necessary to decide whether any actual liability under these Illinois statutes was created by the police actions here. Nonetheless, the policy of these statutes, when considered in context with the general obligation of the police to protect the personal safety of those in the community, clearly supports the existence of an affirmative duty by policemen to protect children who have been endangered due to the performance of official duties.

7 . See, e. g., Aldridge v. Mullins, 377 F.Supp. 850 (D.Tenn.1972), aff’d, 474 F.2d 1189 (6th Cir. 1973); Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970). Both cases involved unintentional shootings caused by police officers firing warning shots at plaintiffs. The “reckless disregard” standard was articulated by this court in Bonner v. Coughlin, 545 F.2d 565, 569 (7th Cir. 1976).

8 . Additionally the plaintiffs claimed in their .brief that the officers had knowledge of the asthmatic child’s medical condition. If this were alleged in an amended complaint, a case of deliberate disregard would clearly appear on the face of the complaint.

9 . See notes 2 and 7 supra.

10 . 424 U.S. at 710-11 n.5, 96 S.Ct. 1155. The majority limits its holding to procedural aspects of Due Process and expressly distinguishes issues of substantive protections.