897 F.

2d 495

Robert J. ARCHULETA; Lillie N. Archuleta; and Robert

Joshua Archuleta, a minor, by next friends, Robert
J. Archuleta and Lillie N. Archuleta,
Plaintiffs-Appellants,
v.
Quinton McSHAN, in his individual capacity only; Joe
Tarazon, in his individual capacity only; New
Mexico State Police; and Morris L.
Cordova, Defendants-Appellees.
No. 87-1461.

United States Court of Appeals,

Tenth Circuit.
March 1, 1990.

John B. Roesler of Wolfe, Roesler, Romero & LaMar, Santa Fe, N.M., for
plaintiffs-appellants.
Janet Clow of White, Koch, Kelly & McCarthy, P.A., Santa Fe, N.M., for
defendants-appellees.
Before MOORE, ANDERSON and EBEL, Circuit Judges.
EBEL, Circuit Judge.

This appeal concerns the asserted constitutional rights of a three-year-old child

who witnessed a police officer's violent arrest of the child's father. The child
brought suit under 42 U.S.C. Sec. 1983, alleging that his liberty interest under
the Fourteenth Amendment was violated as a result of his witnessing the
arrest. 1 The district court entered summary judgment in favor of the police
officer and his superiors, holding that the officer's conduct was not directed
toward the child and that the child therefore did not have his constitutional
rights violated. We affirm.

Facts

In the early morning of July 7, 1985, plaintiff was a passenger in a truck driven
by his father. Plaintiff's mother and an adult family friend also were passengers.
As the father was pulling into his driveway, a police officer stopped him. The
officer told the father that one of his headlights was out and that he did not have
his young child, the plaintiff, in a child restraint. The officer asked the father
for his driver's license, which the father refused to give. After smelling alcohol
on the father's breath, the officer asked the father to exit the car. The father
refused.

After radioing for a police backup unit, the officer again requested the father to
exit the car. After the father again refused, the officer grabbed him in order to
pull him from the car and arrest him. The father clung to the steering wheel so
that he could not be pulled from the car. A struggle ensued. The officer hit the
father's leg with his flashlight and kicked him multiple times in the process of
getting the father out of the truck and into the police unit.

As the altercation began, plaintiff's mother took plaintiff from the truck and
gave him to the adult friend to hold. The friend kept plaintiff at least 20 feet
away from the fray. The friend was free to remove plaintiff totally from the
scene of the altercation, but she apparently chose to stay in the immediate
vicinity to observe the event herself. Plaintiff was crying. At some point during
the struggle, plaintiff's mother tried to get the house keys out of the father's
pocket, purportedly to be able to take the child into the house. The officer
pushed her away and purportedly said: "I have no sympathy for the child or
anyone here." The father eventually was taken to the police station.2 At no time
did the officer physically touch or threaten the plaintiff.

Plaintiff sued the officer and his superiors under 42 U.S.C. Sec. 1983, alleging
that the officer acted with intentional or reckless disregard and indifference to
his emotional well-being during the arrest.3 The district court awarded
summary judgment in favor of the defendants, holding that plaintiff was not
deprived of any right secured by the Constitution or laws of the United States.

Discussion
6

On appeal, plaintiff asserts that his "Fourteenth Amendment substantive due

process liberty interest" was violated by defendants' conduct. Appellant's Br. at
2. We disagree.

We begin by noting that "section 1983 imposes liability for violations of rights
protected by the constitution or laws of the United States, not for violations of

duties of care arising out of tort law. Remedies for the latter type of injury must
be sought in the state court under the traditional tort-law principles." Wise v.
Bravo, 666 F.2d 1328, 1333 (10th Cir.1981). Thus, we review this case not to
determine whether the police officer may have committed an actionable tort
against plaintiff, but rather to determine whether that conduct violated any of
plaintiff's constitutional rights. "In addressing an excessive force claim brought
under Sec. 1983, analysis begins by identifying the specific constitutional right
allegedly infringed by the challenged application of force." Graham v. Connor,
--- U.S. ----, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989).
8

We must also keep firmly in mind the well-settled principle that a section 1983
claim must be based upon the violation of plaintiff's personal rights, and not the
rights of someone else. Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir.) ("
[T]he Sec. 1983 civil rights action is a personal suit. It does not accrue to a
relative, even the father of the deceased."), cert. denied, 459 U.S. 826, 103
S.Ct. 60, 74 L.Ed.2d 63 (1982); see also Coon v. Ledbetter, 780 F.2d 1158,
1160-61 (5th Cir.1986); Trujillo v. Board of County Commissioners, 768 F.2d
1186, 1187 (10th Cir.1985). Thus, regardless of what happened to plaintiff's
father, this case turns upon whether plaintiff personally suffered any
deprivation of a constitutional right possessed by him individually.

The precise interest that plaintiff is asserting here is a liberty interest, under the
Due Process Clause of the Fourteenth Amendment, to be free of emotional
trauma suffered as a result of observing allegedly excessive police force which
was directed entirely at his father.4 We hold that plaintiff has no such liberty
interest, and that the district court was therefore correct in granting summary
judgment on this ground.

10

The Supreme Court has stressed that "[h]istorically, th[e] guarantee of due
process has been applied to deliberate decisions of government officials to
deprive a person of life, liberty, or property." Daniels v. Williams, 474 U.S.
327, 331, 106 S.Ct. 662, 665, 88 L.Ed.2d 662 (1986) (emphasis in original).
The Court in Daniels concluded that the word "deprive" in the Due Process
Clause indicates that something more than a mere negligent act is required to
trigger the protections of that provision. Id. at 330, 106 S.Ct. at 664. The Court
cautioned that if injuries caused by mere negligent acts could violate the Due
Process Clause, that provision, which is designed to protect the individual from
arbitrary acts of the state, would be "trivialize[d]." Id. at 331-32, 106 S.Ct. at
664-65.5 In a companion case, Davidson v. Cannon, 474 U.S. 344, 348, 106
S.Ct. 668, 670, 88 L.Ed.2d 677 (1986), the Court underscored its holding in
Daniels and concluded that "the protections of the Due Process Clause, whether
procedural or substantive, are ... not triggered by lack of due care."

11

The Supreme Court has recently confronted the issue of whether a municipality
can be held liable for a violation of due process in the absence of deliberate
action in City of Canton v. Harris, --- U.S. ----, 109 S.Ct. 1197, 103 L.Ed.2d
412 (1989). City of Canton involved allegations that a municipality had
violated the Due Process Clause when it improperly trained its police officers.
The Court held that "the inadequacy of police training may serve as the basis
for Sec. 1983 liability only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into contact."
Id. 109 S.Ct. at 1204 (emphasis added).

12

The requirement of Daniels, Davidson, and City of Canton that there be an

element of deliberateness in directing the misconduct toward the plaintiff
before the Due Process Clause is implicated comports with prior precedent of
this circuit. In Wise v. Bravo, 666 F.2d 1328 (10th Cir.1981), we established
that something beyond carelessness is required before police misconduct can be
remedied under section 1983. The court held that mere carelessness or unwise
excessive zeal, even amounting to an abuse of official power, may not be
enough to establish liability for a due process claim under section 1983 in the
absence of requisite scienter. Id. at 1333-34.

13

The problem with plaintiff's claim is that no state conduct was directed at him,
and he cannot establish that defendants had the requisite intent to violate his
rights. He was merely a bystander who was asserting indirect and unintended
injury as a result of police conduct directed toward another.

14

We use the term bystander to mean someone who witnesses police action but
who is not himself or herself an object of that action.6 As such, a bystander is
unable to assert the kind of deliberate deprivation of his or her rights necessary
to state a due process claim under section 1983.

15

The case law supports our conclusion. For example, in Grandstaff v. City of
Borger, 767 F.2d 161, 172 (5th Cir.1985), cert. denied, 480 U.S. 916, 107 S.Ct.
1369, 94 L.Ed.2d 686 (1987), the court held that a rancher's wife and stepsons
who witnessed a mistaken shooting of the rancher by police had no
constitutional claim for their own emotional injuries under section 1983,
although they did have a claim under state tort law. The court stated, "[w]e fail
to see, however, that these bystanders have proved an independent cause of
action under Sec. 1983.... [T]here is no constitutional right to be free from
witnessing this police action." Id.

16

Likewise, in Coon v. Ledbetter, 780 F.2d 1158 (5th Cir.1986), the court held

that a wife who witnessed sheriff's deputies shooting into her mobile home and
wounding her husband had no constitutional claim for emotional injuries. The
court ruled that whatever her right to recover as a bystander under state law, she
could not state a constitutional claim because "[t]here was no evidence that any
act of the deputies was directed toward [her]." Id. at 1161 (emphasis added). In
contrast, the court held that the couple's minor daughter, who was in the trailer
at the time that the sheriff's deputies fired into it with knowledge of her
presence in the trailer, did have a constitutional claim because of the officers'
conduct which deliberately placed her in jeopardy. Id.
17

Finally, in Trujillo v. Board of County Commissioners, 768 F.2d 1186 (10th

Cir.1985), a case that is somewhat related to the issue we consider here, a
mother and daughter brought actions against various public officials, alleging
that the wrongful death of their son and brother, respectively, while
incarcerated in a county jail, deprived them of their constitutional right of
familial association. The court rejected that claim because there was no
showing that the jailers directed any activity toward the familial relationship
with an intent to interfere with that relationship. The court stated:

18

For these reasons, we conclude that an allegation of intent to interfere with a

particular relationship protected by the freedom of intimate association is
required to state a claim under section 1983....

19

Although the complaint alleges intent with respect to [the inmate's] rights, this
intent may not be transferred to establish intent to deprive his mother and sister
of their constitutionally protected rights. The alleged conduct by the State,
however improper or unconstitutional with respect to the [inmate], will work an
unconstitutional deprivation of the freedom of intimate association only if the
conduct was directed at that right.
Id. at 1190 (emphasis added). 7

20

The principal case on which plaintiff relies, White v. Rochford, 592 F.2d 381
(7th Cir.1979), is distinguishable. In White, police officers stopped a car and
arrested the driver for drag racing. The police then deliberately abandoned the
three minor children who were passengers in the car in cold temperatures on
the Chicago Skyway. The children eventually made their way across eight
lanes of heavy traffic and telephoned their mother. One of the children, a fiveyear-old, had to be hospitalized for a week after the ordeal. After the officers
had completed the arrest of the driver, he pleaded with them to provide for the
safety of the three minor children in his custody. The officers rejected those

pleas, and intentionally abandoned the children in the automobile on the side of
the busy freeway in the middle of the night. The Seventh Circuit held that the
children had a section 1983 action against the police officers for physical and
emotional harm. That case is distinguishable because the officers' conduct in
abandoning the children on the freeway after the arrest was completed was
clearly directed toward the children themselves.
21

We have previously recognized that "we must provide a logical stopping place
for [section 1983] claims." Trujillo v. Board of County Commissioners, 768
F.2d at 1190. The Supreme Court, in Daniels, Davidson, and City of Canton,
has instructed us that the line is to be drawn by requiring that a plaintiff who
asserts a due process claim under section 1983 prove that he or she is the
deliberate object of the state action which caused injury.

22

Here, because the evidence shows that the police officer did not direct any of
his actions toward plaintiff with the requisite intent to cause him any physical
or emotional damage, plaintiff has failed to show a violation of his due process
rights.

23

Although the Court in Daniels and City of Canton did not define the outer limits
of the "intentional" or "deliberate indifference" standard, we assume for
purposes of this analysis that reckless conduct could also form the basis for a
due process violation. Our assumption is supported by the fact that recklessness
"is a proxy for intent," Archie v. City of Racine, 847 F.2d 1211, 1220 (7th
Cir.1988) (en banc), cert. denied, --- U.S. ----, 109 S.Ct. 1338, 103 L.Ed.2d 809
(1989) (concluding that reckless conduct can trigger the protections of the Due
Process Clause, but that gross negligence cannot), and recklessness includes an
element of deliberateness--a conscious acceptance of a known, serious risk. See
Model Penal Code Sec. 2.02(2)(c) (1985) (defining recklessness as the
conscious disregard of "a substantial and unjustifiable risk.... involv[ing] a
gross deviation from the standard of conduct that a law-abiding person would
observe in the actor's situation"); W. Keeton, D. Dobbs, R. Keeton & D. Owen,
Prosser & Keeton on the Law of Torts Sec. 34, at 213 (5th ed. 1984)
(describing reckless conduct as conduct "in disregard of a known or obvious
risk that was so great as to make it highly probable that harm would follow, and
which thus is usually accompanied by a conscious indifference to the
consequences" (footnotes omitted) (emphasis added)).8

24

Here, there has been no showing of recklessness. Notwithstanding the officer's

statement that he had "no sympathy" for the child, there has been no showing
that the officer acted in conscious disregard of a substantial risk to plaintiff
during the time that he was arresting plaintiff's father. The officer's actions

were directed solely toward plaintiff's father, not plaintiff. Further, there was no
obvious and severe risk to the plaintiff during the course of the arrest. Plaintiff
was approximately 20 feet removed from the accident and under the safe
custody of a neighbor. The neighbor was perfectly free to remove plaintiff
entirely from the vicinity. At no time was plaintiff in any physical danger from
the skirmish between plaintiff's father and the officer. Under these facts, it is
apparent beyond doubt that there was not the required conduct directed toward
plaintiff nor the requisite intent to injure plaintiff that would give rise to a due
process claim under section 1983. Our conclusion that the officer did not act
recklessly is particularly appropriate in light of the need to make "allowance for
the fact that police officers are often forced to make split-second judgments--in
circumstances that are tense, uncertain, and rapidly evolving." Graham v.
Connor, 109 S.Ct. at 1872.
25

We hold that the district court correctly entered summary judgment in favor of
the defendants in this case and, accordingly, we AFFIRM.

42 U.S.C. Sec. 1983 provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress.

The father failed a field sobriety test and, at the police station, refused to submit
to a breath alcohol test

Plaintiff's father and mother also filed section 1983 claims but subsequently
dismissed them voluntarily

It is far from clear that the officer's force here was excessive. In his deposition,
the father admitted that he refused to give the officer his driver's license; that he
refused to exit his truck when the officer notified him that he was under arrest
and requested that he get out of his truck; that he clung to the steering wheel
when the officer tried to remove him; that he grabbed a fence when the officer
tried to handcuff him; and that he otherwise forcibly resisted arrest. Doc. 109,
Exh. 1 at 37-38, 48-50, 69. However, the district court found it unnecessary to
determine whether the officer used excessive force in effecting the arrest, and,
similarly, we need not decide that issue either

The Court in Daniels did not decide "whether something less than intentional
conduct, such as recklessness or 'gross negligence,' is enough to trigger the
protections of the Due Process Clause." Id. 474 U.S. at 334 n. 3, 106 S.Ct. at
666 n. 3; see also footnote 8, infra

If, during the course of an arrest or other police action, the police direct action
against a person who previously had bystander status with the requisite
deliberateness to do injury to that person, his status would at that point change
from one of a bystander to a direct object of state action. At that point, a due
process claim could arise on behalf of such a person

Unlike the pure due process right asserted here, Trujillo involved the freedom
of intimate association, which the court identified as " 'an intrinsic element of
personal liberty.' " Trujillo v. Board of County Commissioners, 768 F.2d at
1188 (quoting Roberts v. United States Jaycees, 468 U.S. 609, 620, 104 S.Ct.
3244, 3250, 82 L.Ed.2d 462 (1984)). The court in Trujillo, in concluding that
the state must intend to interfere with a relationship protected by the freedom of
intimate association in order for section 1983 liability to arise, relied on cases
involving the First Amendment right of expressive association. Id. at 1189-90

In contrast, gross negligence may not be sufficient to satisfy the deliberateness

requirement because conduct can be grossly negligent even though it is not
intentional or willful. It is merely an extreme variant of negligence or
carelessness, and the Supreme Court has held that negligent conduct does not
trigger the protections of the Due Process Clause. However, we do not need to
decide whether grossly negligent conduct could trigger the protections of the
Due Process Clause because plaintiff has alleged only an intentional or reckless
disregard of his rights. Plaintiff did not attempt to premise his claim on gross
negligence