APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. (D.C. No. 1:07-CV-122-DAK).
The opinion of the court was delivered by: Holloway, Circuit Judge
Before HARTZ, HOLLOWAY, and TYMKOVICH, Circuit Judges.
This tragic case addresses the level of intent necessary to prove a 42 U.S.C. § 1983 claim against officers for their conduct in a high-speed chase resulting in a bystander's death. The teaching of County of Sacramento v. Lewis, 523 U.S. 833, 836 (1998), is that in such circumstances "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." See also id. at 858 (Kennedy, J., concurring) ("intent to injure" is required).
Because Plaintiff-Appellant here failed to allege facts sufficient to establish such intent, the District Court properly dismissed the First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
On December 18, 2006, Officer Matt Jones and Sergeant Troy Burnett are alleged to have initiated a "high speed chase" after Eddie Bustos through Ogden, Utah. First Amended Complaint at ¶¶ 3-4, 12, 14.*fn1 The officers had been conducting a stakeout in a known gang member area of Ogden. Id. at ¶ 12. According to the First Amended Complaint, the officers began to follow and then chase Mr. Bustos "through town at speeds that exceeded 55 miles per hour, and at times reached 80 miles per hour." Id. at ¶ 15. Officer Jones was aware of the residential address of Mr. Bustos and could have waited at that address to arrest Mr. Bustos for any crimes he may have committed. Id. at ¶ 22. Throughout the chase Mr. Bustos would drive into oncoming traffic and lanes and the defendants continued to chase him. Id. at ¶ 17. The officers were advised and ordered by dispatch to disengage from the pursuit. Id. at ¶ 19.
The First Amended Complaint further alleges that the officers disregarded the order and/or gave false information to police dispatch about their speed and that they were disengaging the chase. Id. at ¶¶ 20, 24. During the chase Mr. Bustos struck the vehicle which Mr. Ellis was driving, and this led to Mr. Ellis's death. Id. at ¶ 23.
Mr. Ellis's estate filed suit against Ogden City, Officer Jones, and Sergeant Burnett for allegedly violating Mr. Ellis's Fifth and Fourteenth Amendment rights to due process and his Fourteenth Amendment right to equal protection of the law. The estate's suit was maintained pursuant to 42 U.S.C. § 1983 for acts which "deprived Ellis of his civil rights and his life." Id. at ¶¶ 6, 35, 42. The estate also alleged the City of Ogden fostered and encouraged a policy of turning a blind eye to dangerous police pursuits, thus exposing the city to municipal liability. Id. at ¶¶ 39-40. A demand for trial by jury was made in the complaint. Id. at ¶ 1. Defendants-Appellees moved to dismiss the case pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim, and the District Court granted the motion. Memorandum Decision & Order, App. at 156.
The District Court held that the estate failed to allege facts establishing that the officers acted with the requisite intent for such a constitutional violation so that Defendants' Rule 12(b)(6) motion was appropriate. Id. at 7. The estate appealed the dismissal.
The District Court had federal question jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1343. This court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.
A. The Element of Intent Under Lewis for a Section 1983 Claim Arising From a High-speed Police Pursuit
Section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, provides a remedy against any person who, under color of state law, deprives another of rights protected by the Constitution. Radecki v. Barela, 146 F.3d 1227, 1229 (10th Cir. 1998). To establish a substantive due process violation, a plaintiff must show that the officers acted in a manner "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Lewis, 523 U.S. at 847, n.8. Whether conduct shocks the conscience depends on the factual circumstances of the case and the level of intent exhibited by the officers. See id. at 850 ("[O]ur concern with ...