Section 1983 – High-Speed Chase

Model
[Plaintiff] claims that [defendant] violated [plaintiff’s] Fourteenth Amendment rights by [describe the high-speed chase].
To establish this claim, [plaintiff] must prove both of the following things by a preponderance of the evidence:
First: [Defendant] [describe [plaintiff’s] allegations concerning the high-speed chase].
Second: [Defendant] acted for the purpose of causing harm unrelated to the goal of [apprehending [plaintiff]] [doing [his/her] job as a law enforcement officer]. It is not enough for [plaintiff] to show that [defendant] was careless or even reckless in pursuing [plaintiff]. [Plaintiff] must prove that [defendant] acted for the purpose of causing harm unrelated to the valid goal of pursuing [plaintiff].

Comment
“[H]igh speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.” County of Sacramento v. Lewis, 523 U.S. 833, 854 (1998).²⁸⁶ “[I]n a high speed automobile chase aimed at apprehending a suspected offender .... 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.” Id. at 836. The Lewis Court rejected a less demanding standard (such as deliberate indifference) because it reasoned that the decision whether to pursue a high-speed chase had to be made swiftly and required police to weigh competing concerns: “on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high speed threat to all those within stopping range, be they suspects, their passengers, other drivers, or bystanders.” Id. at 853. Based on the conclusion that “the officer's instinct was to do his job as a law enforcement officer, not to induce [the motorcycle driver’s] lawlessness, or to terrorize, cause harm, or kill,” the Court found no substantive due process violation in Lewis. Id. at 855.
Courts should not “second guess a police officer's decision to initiate pursuit of a suspect so long as the officers were acting ‘in the service of a legitimate governmental objective,’” such as “to apprehend one fleeing the police officers' legitimate investigation of suspicious behavior.” Davis v. Township of Hillside, 190 F.3d 167, 170 (3d Cir. 1999) (quoting Lewis, 523 U.S. at 846). In Davis, the plaintiff asserted that a police car chasing a suspect bumped the suspect’s car, causing the suspect to hit his head and pass out, which caused the suspect’s car to collide with other cars, one of which hit and injured the plaintiff (a bystander). See id. at 169. Finding no “evidence from which a jury could infer a purpose to cause harm unrelated to the legitimate object of the chase,” the Court of Appeals affirmed the grant of summary judgment to the defendants. Id. Judge McKee concurred but wrote separately to note that “if the record supported a finding that police gratuitously rammed [the suspect’s] car, and if plaintiff properly alleged that they did so to injure or terrorize [the suspect], liability could still attach under Lewis.” Id. at 172-73 (McKee, J., concurring); see also id. at 173 (“I do not read the majority opinion as holding that police can use any amount of force during a high speed chase no matter how tenuously the force is related to the legitimate law enforcement objective of arresting the fleeing suspect.”).²⁸⁷

Model
When the state places a child in foster care, the state has entered into a special relationship with that child and this relationship gives rise to a duty under the Fourteenth Amendment to the United States Constitution. [Plaintiff] claims that [defendant] violated [his/her] duty by placing [[plaintiff] [child]]²⁸⁸ in foster care with John and Jane Doe. [The parties agree that] [Plaintiff claims that] [describe abuse of plaintiff while in foster care].
To establish this claim, [plaintiff] must prove both of the following things by a preponderance of the evidence:
First: [Defendant] acted with deliberate indifference when [he/she] placed [plaintiff] in the Does’ foster home.
Second: [Plaintiff] was harmed by that placement.
I will now proceed to give you more details on the first of these two requirements.
[Deliberate indifference means that [defendant] knew of a substantial risk that [Mr. Doe] [Ms. Doe] would abuse [plaintiff], and that [defendant] disregarded that risk. [Plaintiff] must show that [defendant] actually knew of the risk. If [defendant] knew of facts that [he/she] strongly suspected to be true, and those facts indicated a substantial risk that [Mr. Doe] [Ms. Doe] would abuse [plaintiff], [defendant] cannot escape liability merely because [he/she] refused to take the opportunity to confirm those facts. But keep in mind that mere carelessness or negligence is not enough to make an official liable. It is not enough for [plaintiff] to show that a reasonable person would have known, or that [defendant] should have known, of the risk to [plaintiff]. [Plaintiff] must show that [defendant] actually knew of the risk. If [plaintiff] proves that there was an obvious risk of abuse, you are entitled to infer from the obviousness of the risk that [defendant] knew of the risk. [However, [defendant] claims that even if there was an obvious risk, [he/she] was unaware of that risk. If you find that [defendant] was unaware of the risk,²⁸⁹ then you must find that [he/she] was not deliberately indifferent.]]²⁹⁰

Comment
“[W]hen the state places a child in state‑regulated foster care, the state has entered into a special relationship with that child which imposes upon it certain affirmative duties. The failure to perform such duties can give rise, under sufficiently culpable circumstances, to liability under section 1983.” Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (en banc). However, “compulsory school attendance laws and the concomitant in loco parentis authority and discretion that schools necessarily exercise over students” do not give rise to a “special relationship,” even in a sympathetic case where a violent bully subject to two restraining orders assaults other students. Morrow v. Balaski, 719 F.3d 160, 170-72 (3d Cir. 2013) (en banc) (but noting that “a school’s exercise of authority to lock classrooms in the wake of tragedies . . . may be a relevant factor in determining whether a special relationship or state-created danger exists in those specific cases”).
The culpability requirement in such a “special relationship” case is governed by the framework set forth in County of Sacramento v. Lewis, 523 U.S. 833 (1998). See Nicini, 212 F.3d at 809.²⁹¹ Under that framework, the plaintiff must show that the defendant’s conduct “shocked the conscience”; the precise level of culpability required will vary depending on the circumstances, and especially on the availability (or not) of the opportunity for the defendant to deliberate before acting. See id. at 810. In Nicini, the Court of Appeals applied a “deliberate indifference” standard. See id. at 811 (“In the context of this case . . . Cyrus's actions in investigating the Morra home should be judged under the deliberate indifference standard.”).²⁹² The Nicini court did not, however, decide whether this “deliberate indifference” standard should follow the subjective “deliberate indifference” standard applied to prisoners’ Eighth Amendment claims, see Nicini, 212 F.3d at 811 (citing Farmer v. Brennan, 511 U.S. 825 (1994)),²⁹³ or whether a defendant’s “failure to act in light of a risk of which the official should have known, as opposed to failure to act in light of an actually known risk, constitutes deliberately indifferent conduct in this setting,” because under either standard the court held the plaintiff’s claim should fail, see Nicini, 212 F.3d at 812 (holding that defendant’s conduct “amounted, at most, to negligence”).

1^ Referring to the parties by their names, rather than solely as “Plaintiff” and “Defendant,” can improve jurors’ comprehension. In these instructions, bracketed references to “[plaintiff]” or “[defendant]” indicate places where the name of the party should be inserted.

2^ In these instructions, references to action under color of state law are meant to include action under color of territorial law. See, e.g., Eddy v. Virgin Islands Water & Power Auth., 955 F. Supp. 468, 476 (D.V.I. 1997) (“The net effect of the Supreme Court decisions interpreting 42 U.S.C. § 1983, including Will [v. Michigan Department of State Police, 491 U.S. 58 (1989),] and Ngiraingas [v. Sanchez, 495 U.S. 182 (1990)], is to treat the territories and their officials and employees the same as states and their officials and employees.”), reconsidered on other grounds, 961 F. Supp. 113 (D.V.I. 1997); see also Iles v. de Jongh, 638 F.3d 169, 177-78 (3d Cir. 2011) (analyzing official-capacity claims against Governor of Virgin Islands under, inter alia, Will).

3^ See Sharp v. Johnson, 669 F.3d 144, 158-59 (3d Cir. 2012) (noting “that parties should generally assert affirmative defenses early in the litigation,” but finding no abuse of discretion in trial court’s permission to assert qualified immunity defense at trial where the defense had been pleaded and where the failure to present the defense by motion prior to trial made sense – due to the need for fact development – and did not prejudice the plaintiff).

4^ As discussed below (see Comment 4.7.2), the qualified immunity analysis poses three questions: (1) whether the defendant violated a constitutional right; (2) whether the right was clearly established; and (3) whether it would have been clear to a reasonable official, under the circumstances, that the conduct was unlawful. The issue of evidentiary burdens of proof implicates only the first and third questions.

5^ There is language in Estate of Smith v. Marasco, 430 F.3d 140 (3d Cir. 2005), which may be perceived as being in tension with Kopec’s statement that the defendant has the burden of proof on qualified immunity. In Marasco the Court of Appeals held the defendants were entitled to qualified immunity on the plaintiffs’ state-created danger claim because the court “conclude[d] that the Smiths cannot show that a reasonable officer would have recognized that his conduct was ‘conscience‑shocking.’” Id. at 156. While this language can be read as contemplating that the plaintiffs have a burden of persuasion, it should be noted that the court was not focusing on a factual dispute but rather on the clarity of the caselaw at the time of the relevant events. See id. at 154 (stressing that the relevant question was “whether the law, as it existed in 1999, gave the troopers ‘fair warning’ that their actions were unconstitutional”) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).

6^ Such a claim should be distinguished from the use of evidence of a conspiracy in order to establish that a private individual acted under color of state law. See infra Instruction 4.4.3.

7^ Michael Avery, David Rudovsky & Karen Blum, Police Misconduct: Law and Litigation §§ 12:31, 12:32, 12:33, & 12:43 (updated Oct. 2005) (available on Westlaw in the POLICEMISC database).

8^ See also Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 n.2 (2001) (“If a defendant's conduct satisfies the state‑action requirement of the Fourteenth Amendment, the conduct also constitutes action ‘under color of state law’ for § 1983 purposes.”).

9^ Compare Citizens for Health v. Leavitt, 428 F.3d 167, 182 (3d Cir. 2005) (holding that a federal regulation that “authoriz[ed] conduct that was already legally permissible” – and that did not preempt state laws regulating such conduct more strictly – did not meet the “state action requirement”).

10^ McKeesport Hosp. v. Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 524 (3d Cir. 1994) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)).

11^ Tarkanian, 488 U.S. at 192 (citing North Ga. Finishing, Inc. v. Di‑Chem, Inc., 419 U.S. 601 (1975)).

12^ Id. (citing West v. Atkins, 487 U.S. 42 (1988)); see also Reichley v. Pennsylvania Dept. of Agriculture, 427 F.3d 236, 245 (3d Cir. 2005) (holding that trade association’s “involvement and cooperation with the Commonwealth's efforts to contain and combat” avian influenza did not show requisite delegation of authority to the trade association).

13^ Tarkanian, 488 U.S. at 192 (citing Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961)).

14^ McKeesport Hosp., 24 F.3d at 524. The Court of Appeals has explained that Supreme Court caselaw concerning “joint action or action in concert suggests that some sort of common purpose or intent must be shown.... [A] private citizen acting at the orders of a police officer is not generally acting in a willful manner, especially when that citizen has no self‑interest in taking the action.... [W]illful participation ... means voluntary, uncoerced participation.” Harvey v. Plains Twp. Police Dept., 421 F.3d 185, 195-96 (3d Cir. 2005).

15^ Benn v. Universal Health System, Inc., 371 F.3d 165, 171 (3d Cir. 2004) (quoting Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982))).

16^ Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296 (quoting Blum, 457 U.S. at 1004)).

17^ Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296 (quoting Pennsylvania v. Bd. of Dir. of City Trusts of Philadelphia, 353 U.S. 230, 231 (1957) (per curiam))).

18^ Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296); compare Leshko v. Servis, 423 F.3d 337, 347 (3d Cir. 2005) (holding “that foster parents in Pennsylvania are not state actors for purposes of liability under § 1983"); Max v. Republican Committee of Lancaster County, 587 F.3d 198, 199, 203 (3d Cir. 2009) (holding that, under the circumstances, a political committee, its affiliate and certain of its officials were not acting as state actors when they allegedly sought to chill the speech of plaintiff – a committeewoman for the political committee – in connection with the Republican primary election).

19^ Benn, 371 F.3d at 171 (quoting Brentwood, 531 U.S. at 296 (quoting Evans v. Newton, 382 U.S. 296, 299, 301 (1966))).

20^ Special problems may arise if the public employee in question has a professional obligation to someone other than the government. Compare, e.g., West v. Atkins, 487 U.S. 42, 43, 54 (1988) (holding that “a physician who is under contract with the State to provide medical services to inmates at a state‑prison hospital on a part‑time basis acts ‘under color of state law,’ within the meaning of 42 U.S.C. § 1983, when he treats an inmate”) with Polk County v. Dodson, 454 U.S. 312, 317 n.4 (1981) (“[A] public defender does not act under color of state law when performing the traditional functions of counsel to a criminal defendant.”).

21^ The court should take care not to narrow the jury’s focus; the jury should be instructed to consider all relevant circumstances. See Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 608 (3d Cir. 2011) (remanding for new trial due to erroneous verdict form and explaining that “[a]ction under color of state law must be addressed after considering the totality of the circumstances and cannot be limited to a single factual question”).

22^ For an instruction concerning the contention that a private defendant acted under color of state law by conspiring with a state official, see Instruction 4.4.3.

23^ Compare, e.g., Barna v. City of Perth Amboy, 42 F.3d 809, 816-17 (3d Cir. 1994) (off-duty, non-uniformed officers with police-issue weapons did not act under color of law in altercation with brother-in-law of one of the officers; officers were outside the geographic scope of their jurisdiction, and altercation started when officer accused his brother-in-law of hitting his sister, after which officer’s partner joined the fight, after which both officers tried to leave) with Black v. Stephens, 662 F.2d 181, 188 (3d Cir. 1981) (police officer acted under color of law in altercation that began with a dispute over a traffic incident; “he was on duty as a member of the Allentown Police force, dressed in a police academy windbreaker and . . . he investigated the Blacks' vehicle because he thought the driver was either intoxicated or in need of help”); see also Paul v. Davis, 424 U.S. 693, 717 (1976) (Brennan, J., joined by Marshall, J., and in relevant part by White, J., dissenting) (“[A]n off‑duty policeman's discipline of his own children, for example, would not constitute conduct ‘under color of’ law.”).

24^ “[G]enerally, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.” West, 487 U.S. at 50.

25^ “[O]ff‑duty police officers who flash a badge or otherwise purport to exercise official authority generally act under color of law.” Bonenberger v. Plymouth Tp., 132 F.3d 20, 24 (3d Cir. 1997).

26^ “[N]ot all torts committed by state employees constitute state action, even if committed while on duty. For instance, a state employee who pursues purely private motives and whose interaction with the victim is unconnected with his execution of official duties does not act under color of law.” Bonenberger, 132 F.3d at 24.

27^ See Torres v. Cruz, 1995 WL 373006, at *4 (D.N.J. Aug. 24, 1992) (holding that it was relevant to question of action under color of state law that police manual “states that although the officers will be assigned active duty hours, ‘all members shall be considered on duty at all times and shall act promptly, at any time, their services are required or requested’”).

28^ See Basista v. Weir, 340 F.2d 74, 80-81 (3d Cir. 1965) (“Assuming arguendo that Scalese's actions were in fact motivated by personal animosity that does not and cannot place him or his acts outside the scope of Section 1983 if he vented his ill feeling towards Basista ... under color of a policeman's badge.”).

29^ “Manifestations of . . . pretended [official] authority may include flashing a badge, identifying oneself as a police officer, placing an individual under arrest, or intervening in a dispute involving others pursuant to a duty imposed by police department regulations.” Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994).

30^ See id. at 816-17.

31^ See Griffin v. Maryland, 378 U.S. 130, 135 (1964).

32^ See Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999).

33^ See Bonenberger, 132 F.3d at 24.

34^ “While a police‑officer's use of a state‑issue weapon in the pursuit of private activities will have ‘furthered’ the § 1983 violation in a literal sense, courts generally require additional indicia of state authority to conclude that the officer acted under color of state law.” Barna, 42 F.3d at 817; see also id. at 818 (holding that “the unauthorized use of a police‑issue nightstick is simply not enough to color this clearly personal family dispute with the imprimatur of state authority”).

35^ Rodriguez v. City of Paterson, 1995 WL 363710, at *3 (D.N.J. June 13, 1995) (fact that defendant was equipped with police radio was relevant to question of action under color of state law).

36^ See Griffin, 378 U.S. at 135 (holding that the defendant, “in ordering the petitioners to leave the park and in arresting and instituting prosecutions against them – purported to exercise the authority of a deputy sheriff. He wore a sheriff's badge and consistently identified himself as a deputy sheriff rather than as an employee of the park”); Abraham, 183 F.3d at 287 (“[E]ven though Raso was working off duty as a security guard, she was acting under color of state law: she was wearing a police uniform, ordered Abraham repeatedly to stop, and sought to arrest him.”).

37^ West, 487 U.S. at 50.

38^ Bonenberger, 132 F.3d at 24.

39^ Bonenberger, 132 F.3d at 24.

40^ Basista, 340 F.2d at 80-81.

41^ Barna v. City of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994). See also Galena v. Leone, 638 F.3d 186, 197 (3d Cir. 2011) (citing Barna and stating that “there is no doubt that Leone was acting under color of state law when, in his official capacity as chairperson of the Council, he ordered the deputy sheriff to escort Galena from the Council meeting”).

42^ See id. at 816-17.

43^ See Griffin, 378 U.S. at 135.

44^ See Abraham, 183 F.3d at 287.

45^ See Bonenberger, 132 F.3d at 24.

46^ If the private person hires the state official to do the act that constitutes the violation, and the state official agrees to be hired for that purpose, then this constitutes action under color of state law under the conspiracy theory. See Abbott v. Latshaw, 164 F.3d 141, 147-48 (3d Cir. 1998).

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