USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 96-1868

LOUIS BOVERI AND ROSE BOVERI,

Plaintiffs, Appellants,

v.

TOWN OF SAUGUS, ET AL.,

Defendants, Appellees.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

___________________

_________________________

Before

Torruella, Chief Judge,

___________

Selya and Boudin, Circuit Judges.

______________

_________________________

Edmund M. Pitts, with whom Edmund R. Pitts and Pitts & Pitts
_______________
_______________
_____________
were on brief, for appellants.
Philip Burling,
_______________

with

whom

Gregory T. Moffatt,
____________________

Feriale
_______

Abdullah, Foley, Hoag & Eliot, Judith R. Cohen, and Adams & Koss
________ ____________________ _______________
____________
were on brief, for appellees.

_________________________

May 12, 1997

_________________________

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
_____________

The

instant appeal

tests the

margins of

the "shock the

articulated in Evans
_____

Finding,

the

conscience" standard that

v. Avery,
_____

100 F.3d 1033

this court

(1st Cir.

1996).

as we do, that the conduct complained of does not cross

Evans
_____

line,

we

affirm

the

entry

of

judgment

for

the

defendants.

Because the district

case1 on

record

summary judgment,

in

the

light

most

supportable inferences in his

court terminated the

Fed. R.

Civ. P.

flattering

favor.

to

plaintiff's

56, we

him

and

See Garside v.
___ _______

assess the

draw

all

Osco Drug,
__________

Inc., 895 F.2d 46, 48 (1st Cir. 1990).

____

The curtain

after

9:00 p.m.

rises in Saugus,

on December

28, 1990,

Massachusetts.

Saugus

Shortly

police officers

Michael

McGrath

cruiser.

and David

They received

restaurant on Route 1.

six

on

patrol in

a McDonald's

As it passes through Saugus,

Route 1 has

limit is 45

northbound and three

miles per hour.

southbound).

The

the time of

the

At

events in question, weather conditions were execrable:

of

snow and rain,

a police

notice of a disturbance at

travel lanes (three

posted speed

Putnam were

with slush beginning

to form on

a mixture

the road in

spots.

In

the

course

of

responding

to

the

reported

disturbance, the officers received a second radio dispatch to the

____________________

1In actuality, there are

his

wife, Rose

derivative

Boveri.

two plaintiffs:

Inasmuch as

Louis

Rose's claim

Boveri and

is entirely

of her spouse's, we treat the appeal as if Louis were

the sole plaintiff.

effect

that the individuals involved were leaving the scene in a

small, dark-colored Honda automobile.

as

a car

matching the

restaurant's

officers

Instead of

chase.

parking

followed,

The officers arrived just

reported description

area

and sped

activating

stopping, the Honda

their

north

pulled out

on

Route

of the

1.

The

siren

and

blue

lights.

accelerated.

The

officers gave

The pursuit continued along Route 1 at speeds in excess

of 80 miles per hour for

officers remained

driver of the

more than three miles.

only a

few car lengths

Throughout, the

to the rear,

Honda, James Wade, desperately

and the

attempted to elude

them.

Under Wade's aegis, the Honda weaved from lane to lane and

tried

to

cruiser.

spin,

use other

vehicles

to obstruct

the

trailing police

At one point, the Honda left the road, did a 360-degree

and returned

to the

highway.

Wade later

described the

chase as being "like a video game."

In

exit.

to

turn

Lynnfield, the Honda left Route 1 via the Route 129

The plaintiff's vehicle was ahead of the Honda, signaling

right.

hydroplaned

into

Wade

the

could not

plaintiff's

stop

car,

in time

and

instigating

the Honda

chain

collision.

Officers

instantaneously,

assistance

for

McGrath

and Putnam

apprehended

the

Wade,

plaintiff

(who

arrived at

and

had

the scene

summoned

medical

sustained

severe

injuries).2
____________________

2Wade
aggravated

subsequently

entered a

guilty

rape, burglary, and larceny

assume for purposes

of this

of a motor

appeal that the

plea

to charges

of

vehicle.

We

officers were

not

The

plaintiff

sued

municipality under 42 U.S.C.

McGrath,

Putnam,

The

district court

officers' favor based on

granted summary

did not

constitutional or

statutory rights of which

officer would have known.

genuine issue as

violate

Our

judgment

in the

clearly established

federal

a reasonable police

is proper

only

when

"there is

no

to any material fact and . . . the moving party

review of

rule is plenary.

judgment

This appeal followed.3

is entitled to a judgment as

56(c).

substantive due

qualified immunity, concluding that the

officers' conduct

Summary

the

1983 (1994), alleging principally

that the officers' conduct violated his right to

process.

and

a matter of law."

the district court's

See Garside, 895 F.2d at 48.

___ _______

Fed. R.

Civ. P.

application of

the

While this appeal was pending, we seized an opportunity

to

clarify the

appropriate

legal standard

for

police pursuit violates substantive due process.

F.3d at

1038.

We

apply that

lower court's rationale

standard here,

does not delimit the

claims that

See Evans, 100

___ _____

mindful that

the

scope of appellate

review.

An appellate court may, if it chooses to do so, affirm a

summary

judgment

record.

See Hachikian v. FDIC, 96 F.3d 502, 504 (1st Cir. 1996).

___ _________
____

on any

alternative

ground

supported by

the

____________________

aware that the Honda was stolen or that its driver was implicated
in rape and burglary.

3Only

the officers

moved for

trial court entered judgment

the

town of

Saugus).

error to that seeming

brevis disposition,
______

yet the

for all three defendants (including

Because the

plaintiff has

not assigned

irregularity, we deem any objection

to be

waived.

It is by now axiomatic that 42 U.S.C.

private

of

state

right of action against a person who, acting under color

law, deprives

Acting under

occurring

1983 supplies a

another

of

federally secured

this rubric, claimants harmed

outside the

bring suits alleging the

context

of a

rights.

by police misconduct

seizure theoretically

may

deprivation of rights protected by

the

substantive

F.3d

component of the Due Process Clause.

at 1036.

interpreting

"impose[s]

But the

the Due

federal

Supreme

Process

Clause so

duties

traditionally imposed by

Court has

that

cautioned

against

extravagantly that

are

state tort

See Evans, 100

___ _____

analogous

law."

Collins
_______

to

it

those

v. City of
________

Harker Heights, 503 U.S. 115, 128 (1992).

______________

There

is

another

caveat

pursuits have a special dimension:

and inevitably create risks

time an essential

applicable

although they are

to bystanders, they are at

law enforcement tool

suspects.

See
___

Evans, 100
_____

however,

police

officers

here.

F.3d

are

dangerous

the same

for the apprehension

at 1038.

forced

Police

to

To use

make

the

of

tool,

instantaneous

judgments

about how

enforcement and

to

the

legitimate needs

the risks to public safety.

of the difficult nature

Evans that "in order

_____

upon substantive

balance

See id.
___ ___

of this balancing act, we

law

Conscious

determined in

for a high-speed police pursuit

due process protections, the

of

to intrude

officers' conduct

must not only manifest deliberate indifference to the plaintiff's

rights,

but must also

shock the

conscience."

paradigm is fully applicable in the instant case.

Id.
___

The Evans
_____

Applying

court

appropriately

Evans, we
_____

granted

are

satisfied

brevis
______

that the

disposition.

district

When

the

officers first spotted the Honda, they had good reason to attempt

to

stop it.

They knew

that its

driver and

his passenger had

created a disturbance at McDonald's.

From

such disturbances,

Honda's rate of

coupled with the

their experience with

speed, the

officers were justifiably concerned that the driver was under the

influence

the

of alcohol (a concern which doubtless was magnified by

officers' awareness

When the Honda

that New

initially failed

Year's Eve

was approaching).

to stop despite

the siren

and

flashing lights,

officers were

the stakes

increased.

warranted in mounting

At that

a pursuit;

juncture, the

leaving such

driver on the road would not only stymie law enforcement but also

endanger the public.

To be sure, as

the chase progressed, the Honda's

driving plainly created an escalating risk

but the officers' continuation

against

of harm to bystanders

of the pursuit

must be judged

the exigencies of the situation that had developed.

law enforcement interest in apprehending the Honda had grown,

had

the

danger to

the public

(potentially inebriated)

question is not whether

was

sound

degree

driver on the

in leaving

road.

Under

the officers' decision to dog

decisions of

but, rather,

inherent

this sort

wild

always involve

whether a rational jury

The

as

a reckless

Evans, the
_____

the Honda

matters of

could say it

was

conscience-shocking.

Here, as in Evans, we think not.

_____

The plaintiff asseverates that this case is

materially

different

from

Evans
_____

violated departmental

dispatcher

because,

rules, state

to cease and

desist.

here,

the

law, and

But to

officers'

conduct

an order

from the

the extent

that this

asseveration

is

supported

by

the

record,

these

individually and collectively, do not suffice to

attributes,

tip the scales.

We explain briefly.

The

plaintiff's assertion

departmental rules finds

that the

some purchase

officers violated

in the record.

1988

memorandum authored by the Saugus police chief, Donald M. Peters,

directs officers to "engage in high speed chases only in cases of

serious felonies."

quarry

had

Although

committed

it turned

serious

out that

felonies

(rape,

the officers'

burglary,

and

larceny of a motor vehicle), it is uncertain whether the officers

had any

inkling of this circumstance.

assuming for

chase

in

See supra note 2.

___ _____

Still,

argument's sake that McGrath and Putnam mounted the

contravention

of

departmental

regulation,

the

violation

would

not

transgress

the

"shock

the

conscience"

standard.

A regulatory violation, like

is

not inherently

a violation of state law,

sufficient to support

1983 claim.

See
___

Martinez v. Colon, 54 F.3d 980, 989 (1st Cir.), cert. denied, 116
________
_____
_____ ______

S.

Ct. 515 (1995); PFZ Properties, Inc. v.

_____________________

28, 32 (1st Cir. 1991);

Cir.

1990) ("Even

necessarily

Rodriguez, 928 F.2d

_________

Amsden v. Moran, 904 F.2d 748,

______
_____

bad-faith

tantamount to

process."); see also Davis

___ ____ _____

violations of

state

757 (1st

law are

unconstitutional deprivations

v. Scherer, 468 U.S. 183,

_______

not

of due

196 (1984)

(rejecting

argument that

unreasonable

when

it

admonishing

that it

an official's

violates

is not

conduct is

statute

"always fair,

or

objectively

regulation

or sound

and

policy, to

demand official compliance with statute and regulation on pain of

money damages").

While departmental regulations

measuring police officers'

conduct against the

are helpful in

Evans benchmark,
_____

courts must look past the regulations to the officers' underlying

actions to determine whether their behavior shocks the conscience

(and,

thus,

process).

723

violates a

plaintiff's

right

to substantive

due

See Temkin v. Frederick County Comm'rs, 945 F.2d 716,

___ ______
________________________

(4th Cir. 1991) (applying this principle in a police pursuit

case).

There

plaintiff's

conscience.

contrary

excess

nothing

contention that

In this regard,

that

of

is

in

the

state

law

that

officers'

actions

the plaintiff's main

the officers

abridged state law

speed

is

the

limit

supports

shock

the

the

claim to the

by driving

figment

of

in

his

mischaracterization of the legal rules governing the operation of

emergency vehicles.

exceed

of

Massachusetts law allows a police officer to

the speed limit "in an emergency and while in performance

a public duty

. . .

under the circumstances

if he exercises caution

and due regard

for the safety of persons and property."

Mass.

Gen. L. ch.

89,

7B

(1989).

While

the plaintiff might

argue

plausibly that the officers failed to exercise due care in

pursuing the Honda, negligence under state law does not amount to

a constitutional violation.

We do not believe that any court, on

this

scumbled

record,

could

find

negligence to be conscience-shocking.

the

officers'

possible

The plaintiff's final point is cut from the same cloth.

The

plaintiff

asserts

McGrath

instruction

by

dispatcher,

to break off their

there is no

evidence in

Judge

that

supervisory

and

officer,

Putnam

issued

pursuit of the

the record to

ignored

an

through

Honda.

support this

the

Although

assertion,

Wolf noted that he would have allowed further discovery to

investigate it had he found it to be outcome-determinative.

assuming,

therefore, that

supervisor's

judgment that

this

claim is

a pursuit

Even

factually correct,

should be

halted neither

increases nor decreases the risks inherent in the pursuit itself.

In

the circumstances of this case

a brief chase on a limited-

access highway on the trail of a vehicle which appeared to pose a

significant threat

to public safety

the officers'

failure to

heed

their

supervisor

does

not

sink

to

the

level

of

constitutional breach.

In

the last

analysis,

the signals

are

mixed

the

inclement weather, the relatively high speeds, and the overriding

of a departmental

regulation are troubling, but

these facts are

ameliorated because the chase was brief (under five

took

place on a six-lane,

blind eye

signals

would have

limited-access highway, and turning a

left the public

are not the stuff

minutes), it

from which a

in jeopardy

mixed

finding that particular

conduct shocks the conscience can easily be derived.

and

We need go no further.4

imprecision of

the "shock the

Even though we acknowledge the

conscience" test, see

___

Evans, 100
_____

F.3d

at 1039, the officers' conduct here is more reasonable than

that

displayed

in

several

understandably

have held

constitutional

line.

F.3d

1296,

1299-1300

cases

police

See, e.g.,
___ ____

(3d Cir.

pursuit at up to 80 m.p.h.

in

which

appellate

behavior not

courts

to traverse

the

Fagan v. City of Vineland, 22

_____
_________________

1994)

(en

banc) (involving

through many red lights); Temkin, 945

______

F.2d at 718 (involving a pursuit at

narrow, two-lane

in those cases, we

highway).

Because we agree

with the decisions

also agree, a fortiori, that the

correctly decided the case at bar.

Affirmed.
Affirmed.
________

speeds up to 105 m.p.h. on a

court below

____________________

4Of course,

our holding

today does

not mean

that injured

parties are necessarily remediless in these situations; state law

provides an avenue for recourse (although perhaps a less generous

one).

However, exploring

that avenue is

scope of this opinion.

10

beyond the legitimate