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Hildebrandt v. City of Fairbanks (5/1/98), 957 P 2d 974
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL C. HILDEBRANDT, )
) Supreme Court Nos. S-7484/7554
Appellant and )
Cross-Appellee, ) Superior Court No.
) 4FA-90-701 CI
) O P I N I O N
CITY OF FAIRBANKS, )
) [No. 4980 - May 1, 1998]
Appellee and )
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Jay Hodges, Judge.
Appearances: Joseph L. Paskvan, Hoppner &
Paskvan, P.C., Fairbanks, for Appellant and Cross-Appellee. Daniel
E. Winfree, Winfree Law Office, Fairbanks, for Appellee and Cross-
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
A motorist was injured in a collision with a City of
Fairbanks police car that was pursuing a fleeing arrestee's
vehicle. We must decide here whether the City can be held liable
under 42 U.S.C. sec. 1983 for failing to train its police officers
in "pursuit driving." The superior court held that the City cannot
held liable under sec. 1983 absent a constitutional violation by
police officer, and that the police officer's conduct did not
violate the motorist's substantive due process rights. Because we
agree with that reasoning, we affirm.
II. FACTS AND PROCEEDINGS
This case arises out of a 1990 accident in which a City
of Fairbanks police car driven by Officer Perry Williamson struck
a car driven by Michael Hildebrandt. [Fn. 1] Hildebrandt v. City
of Fairbanks, 863 P.2d 240, 241 (Alaska 1993) (Hildebrandt I).
Williamson had pulled over a car driven by Robert Malone in a
routine traffic stop, and determined that Malone was driving with
a revoked license. Id. When Williamson attempted to arrest him,
Malone fled in his car at high speed. Id. Williamson activated
the emergency lights and siren on his patrol car and pursued
Malone's car. During the pursuit, Williamson's patrol car entered
an intersection on a red light and struck Hildebrandt's vehicle.
Id. at 242. Hildebrandt had been traveling within the speed limit
and had entered the intersection on a green light. Id.
Hildebrandt suffered serious injuries. Id.
In May 1990 Hildebrandt sued the City under both common
law tort principles and 42 U.S.C. sec. 1983. [Fn. 2] He based his
1983 claim on the City's alleged failure to train its police
officers adequately in vehicle pursuit. [Fn. 3] Id. The City
admitted prior to trial "that Williamson was negligent and that the
City was responsible for some portion of Hildebrandt's damages."
Id. The superior court then granted the City's motion for summary
judgment on the sec. 1983 claim. Id.
After a bench trial, the superior court found that
"Hildebrandt, Williamson and Malone were all negligent and the
negligence of each was a legal cause of the accident and resulting
injuries sustained by Hildebrandt." Id. The superior court also
found that the City was negligent in failing to train Williamson
properly. Id. The court made the following allocation of fault:
sixty percent to Malone, thirty-two percent to the City and
Williamson, and eight percent to Hildebrandt. Id.
Hildebrandt appealed, arguing that the superior court
erred in treating Malone as a separate party for purposes of
apportioning fault, in finding that Hildebrandt was comparatively
negligent, and in granting summary judgment on the sec. 1983 claim.
Id. at 241-42. In Hildebrandt I, we affirmed the superior court's
decision on the first two issues, but reversed the grant of summary
judgment, finding that material issues of fact remained regarding
the sec. 1983 claim. Id. at 243-44, 246. We remanded the
claim to the superior court for additional findings. [Fn. 4] Id.
After a second bench trial, the superior court found that
Officer Williamson's conduct did not shock the conscience and
therefore did not violate Hildebrandt's Fourteenth Amendment
substantive due process rights. The superior court also found that
the City could not be held liable under sec. 1983 for its failure
train police officers in pursuit driving when there had been no
constitutional violation by the individual officer. It entered
judgment against Hildebrandt.
Hildebrandt appeals. The City cross-appeals.
A. Can the City Be Held Liable under sec. 1983 Absent a
Constitutional Violation by an Employee?
Hildebrandt argues that the City can be held liable under
sec. 1983 for failing to train its officers in pursuit driving even
the individual officer did not violate the Constitution. [Fn. 5]
Thus, Hildebrandt contends that the superior court erred in
requiring him to prove that the officer's conduct shocked the
conscience (i.e., violated the Constitution). [Fn. 6]
A municipality is a "person"subject to liability under
sec. 1983. Monell v. Department of Soc. Servs. of City of N.Y.,
U.S. 658, 690-91 (1978). A municipality cannot, however, be held
liable under sec. 1983 on a theory of vicarious liability; it can
be held liable when it was the wrongdoer. Collins v. City of
Harker Heights, Tex., 503 U.S. 115, 122 (1992). The United States
Supreme Court has explained:
Congress did not intend municipalities to be
held liable unless action pursuant to official municipal policy of
some nature caused a constitutional tort. In particular, we
conclude that a municipality cannot be held liable solely because
it employs a tortfeasor -- or, in other words, a municipality
cannot be held liable under sec. 1983 on a respondeat superiortheory.
Monell, 436 U.S. at 691 (emphasis omitted). A municipality may be
directly responsible under sec. 1983 when an employee executes a
governmental policy or custom that inflicts constitutional injury.
Id. at 694.
A municipality may face liability under sec. 1983 for
"constitutional violations resulting from its failure to train
municipal employees." City of Canton, Ohio v. Harris, 489 U.S.
378, 380 (1989). The United States Supreme Court, however, has
carefully circumscribed municipalities' potential liability; not
all possibly injurious failures to train will give rise to
liability under sec. 1983. Collins, 503 U.S. at 123. The Court
[I]f a city employee violates another's
constitutional rights, the city may be liable if it had a policy or
custom of failing to train its employees and that failure to train
caused the constitutional violation. In particular, we held that
the inadequate training of police officers could be characterized
as the cause of the constitutional tort if -- and only if -- the
failure to train amounted to "deliberate indifference"to the
rights of persons with whom the police come into contact.
Id. at 123-24. Thus, a successful sec. 1983 claim for municipal
liability for failure to train has several key elements: a
plaintiff must show that his or her constitutional rights have been
violated; the municipality must have had a policy (failure to
train) that constitutes deliberate indifference to the plaintiff's
constitutional rights; and the policy must have been the cause of
the constitutional violation. See Canton, 489 U.S. at 389-90;
Lewis v. Sacramento County, 98 F.3d 434, 446-47 (9th Cir. 1996),
cert. granted, 117 S. Ct. 2406 (1997) (granting summary judgment to
municipality on sec. 1983 claim arising out of police chase, but
denying summary judgment to individual officer because genuine
issue of material fact remained regarding whether officer violated
plaintiffs' constitutional rights).
Hildebrandt, relying heavily on Fagan v. City of
Vineland, 22 F.3d 1283, 1291-94 (3d Cir. 1994), contends that the
City can be held liable under sec. 1983 even in the absence of a
constitutional violation by Williamson. In Fagan the United States
Court of Appeals for the Third Circuit held that a municipality can
be liable under sec. 1983 and the Fourteenth Amendment for failure
train officers in high-speed pursuit even if no officer involved in
the chase violated the Constitution. Id. at 1294. The Fagan court
reasoned that a city can be directly liable under sec. 1983 for
injuries that resulted when an officer followed a city policy that
the city policymakers implemented with deliberate indifference to
the plaintiff's constitutional rights. Id. at 1292. An officer in
such a situation merely serves as "the causal conduit for the
constitutional violation by the City." Id. The individual officer
would only be liable under sec. 1983 if his or her conduct shocked
Hildebrandt, therefore, reasons that the City's failure
to train its officers in high-speed pursuit driving was a policy
that amounted to deliberate indifference to the rights of people
with whom the police come into contact; that the policy caused
Hildebrandt's injuries; and that the City was directly liable for
its own wrongdoing (failure to train), even if the conduct of the
police officer was not unconstitutional.
We reject Hildebrandt's argument and believe that his
reliance on Fagan is misplaced. The Third Circuit's approach
appears to conflict with the United States Supreme Court's
interpretation of sec. 1983 as set forth in City of Canton and
Collins. Thus, we join the majority of the Courts of Appeals in
declining to follow Fagan. [Fn. 7] We hold that a 42 U.S.C. sec.
claim based on a municipality's failure to train requires an
underlying violation of constitutional rights. Where a bystander
is injured by a police car during a vehicle pursuit, the pursuing
police officer must have violated the bystander's substantive due
process rights in order for the bystander to allege a sec. 1983
Deliberate indifference on the part of the City in
adopting inadequate training policies, without more, cannot sustain
a substantive due process claim. If we allowed such a result,
courts would become embroiled in evaluating municipalities'
resource allocation decisions -- a task for which the courts are
ill-equipped. In addition, the Due Process Clause would become a
guarantee of duties traditionally imposed by state tort law. The
United States Supreme Court has cautioned courts against
interpreting the Due Process Clause in that manner:
Decisions concerning the allocation of
resources to individual programs . . . and to particular aspects of
those programs, such as the training and compensation of employees,
involve a host of policy choices that must be made by locally
elected representatives, rather than by federal judges interpreting
the basic charter of Government for the entire country. The Due
Process Clause "is not a guarantee against incorrect or ill-advised
Collins, 503 U.S. at 128-29 (quoting Bishop v. Wood, 426 U.S. 341,
350 (1976)). Therefore, we hold that Hildebrandt's sec. 1983 claim
can only succeed if the police officer violated Hildebrandt's
B. Did Officer Williamson Violate Hildebrandt's
Hildebrandt contends that Officer Williamson's actions
violated Hildebrandt's substantive due process rights under the
Fourteenth Amendment. He does not identify any other possible
constitutional violation. He argues that Williamson's conduct was
"shocking,"and that the court should find that it shocks the
conscience, thereby amounting to a constitutional violation.
The Courts of Appeals have not reached consensus on what
standard a plaintiff must satisfy in order to establish a
substantive due process violation actionable under sec. 1983. [Fn.
The Ninth Circuit, however, has found a unifying principle in the
circuits' approaches: "These cases sen[d] a clear message that
conduct that is sufficiently egregious may lead to sec. 1983
liability." Lewis, 98 F.3d at 444.
Hildebrandt reasons that Williamson's conduct was so
egregious as to shock the conscience. Although other jurisdictions
have sometimes applied other standards, the parties to this case
have addressed only the "shock the conscience"test. [Fn. 9] The
superior court concluded that "an individual police officer may be
held liable under 42 U.S.C. sec. 1983 only if the officer's conduct
'shocks the conscience,'"and found that Williamson's actions did
not satisfy that standard.
The superior court found that Williamson violated the
Fairbanks Police Department's Standard Operating Procedure in
several respects. Williamson "was negligent in failing to drive
with regard for the safety of other persons,"in failing to
terminate pursuit once he knew Malone's identity, and in failing to
maintain radio contact with his supervisor. The superior court
found that, when Williamson entered the intersection, his emergency
lights and siren were activated, but he "failed to use extreme
caution when entering and going through [the intersection]."
Hildebrandt argues that Williamson was traveling at about 45 miles
per hour when he entered the intersection.
We must decide, then, whether Williamson's transgressions
shock the conscience. Governmental conduct that "offend[s] . . .
canons of decency and fairness"or violates personal immunities
that are "implicit in the concept of ordered liberty"may "shock
the conscience"and thus violate one's due process rights. Rochin
v. California, 342 U.S. 165, 169-72 (1952) (quotations omitted).
Courts that have applied the Rochin standard to high-
speed police pursuits have found that conduct more egregious than
Williamson's did not shock the conscience. In Temkin v. Frederick
County Comm'rs, 945 F.2d 716 (4th Cir. 1991), for instance, a
police officer engaged in a chase for ten miles at night along a
two-lane highway near a busy carnival at speeds ranging from 65 to
105 miles per hour. Id. at 718, 723. The pursued motorist was
suspected of stealing $17 worth of gas. Id. The police officer
lost control of his car and hit the plaintiff's car broadside at
approximately 60 miles per hour, inflicting "severe and permanent
injuries"on the plaintiff. Id. The Fourth Circuit concluded that
the officer's conduct, "while disturbing and lacking in judgment,
[fell] short of the 'shocks the conscience' standard." Id. at 723.
The Eighth Circuit considered a high-speed chase in which
a police officer pursued a suspect outside the officer's
jurisdiction. Roach v. City of Fredericktown, 882 F.2d 294, 295
(8th Cir. 1989). The suspect collided with an oncoming car, and
the police car then collided with the debris from the first
accident. Id. The two collisions caused the death of the suspect
and injured two innocent persons in the oncoming car, as well as a
passenger in the suspect's car. Id. The plaintiffs argued that
the officer's conduct "shock[ed] the conscience." Id. at 297. The
Eighth Circuit held that the officer's conduct was not grossly
negligent and "most certainly [did] not rise to the level of
conduct which would sustain a claim under section 1983." Id. at
297. [Fn. 10] Thus, conduct during vehicle pursuits involving
higher speeds than those claimed here, more serious harm, and more
dangerous conditions has been held not to shock the conscience.
A state official's negligent conduct does not implicate
the Due Process Clause. Daniels v. Williams, 474 U.S. 327, 328
(1986). The Fourteenth Amendment is not "a font of tort law to be
superimposed upon whatever systems may already be administered by
the States." Paul v. Davis, 424 U.S. 693, 701 (1976). Thus, even
though Officer Williamson's conduct was negligent, the record does
not permit a conclusion that it shocks the conscience. [Fn. 11]
We hold that the City is not liable to Hildebrandt under
sec. 1983 for failing to train Officer Williamson unless Williamson
violated Hildebrandt's constitutional rights. Because Officer
Williamson's conduct did not shock the conscience, we conclude that
Hildebrandt did not suffer a constitutional violation. Therefore,
we hold that the City cannot be held liable under sec. 1983 and
the superior court judgment.
This is Hildebrandt's second appeal relating to this
collision. Our opinion in his first appeal discusses many of the
facts germane here. Hildebrandt v. City of Fairbanks, 863 P.2d
240, 241-42 (Alaska 1993) (Hildebrandt I).
42 U.S.C. sec. 1983 (West 1997) provides, in part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory
or the District of Columbia, 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.
Hildebrandt presented evidence indicating that, during the
mid-1980s, the City of Fairbanks eliminated the position of
training officer. Thus, police officers received little or no
training in pursuit driving.
We found that genuine issues of material fact existed
as to (1) whether the City's pursuit driving
training was inadequate; (2) whether such inadequate training can
justifiably be said to represent City policy; (3) whether, as
stated in City of Canton, 489 U.S. [378, 390 (1989)], "the need for
more or different training is so obvious, and the inadequacy so
likely to result in the violation of constitutional rights, that
the policy-makers of the [C]ity can reasonably be said to have been
deliberately indifferent to the need"; and (4) whether the policy
actually caused Hildebrandt's injuries.
Hildebrandt I, 863 P.2d at 246.
Hildebrandt also phrases his argument as "[d]irect municipal
liability under sec. 1983 exists irrespective of whether individual
officer liability exists." (Emphasis added.) Whether an officer
has committed a constitutional violation is an issue wholly
distinct from whether the officer may be liable for the violation.
The City agrees that a municipality may be liable, even if the
individual officer is not liable (because the officer is protected
by qualified immunity, for example). The City, however, argues
that the officer still must have committed a constitutional
violation before the City may be liable under sec. 1983.
Constitutional issues present questions of law, which we
review exercising our independent judgment. Keane v. Local
Boundary Comm'n, 893 P.2d 1239, 1241 (Alaska 1995). We also
exercise independent judgment in reviewing a trial court's
application of law to facts. Luedtke v. Nabors Alaska Drilling,
Inc., 834 P.2d 1220, 1223 (Alaska 1992).
The First, Fourth, Sixth, Seventh, Eighth, Ninth, and Tenth
Circuits have indicated that a municipality can only be liable for
failure to train if the police officer violates the Constitution.
Evans v. Avery, 100 F.3d 1033, 1039 (1st Cir. 1996); Scott v.
Henrich, 39 F.3d 912, 916 (9th Cir. 1994); Thompson v. Boggs, 33
F.3d 847, 859 (7th Cir. 1994); Garner v. Memphis Police Dep't, 8
F.3d 358, 364-65 (6th Cir. 1993); Medina v. City of Denver, 960
F.2d 1493, 1499-500 (10th Cir. 1992) (citing Watson v. City of
Kansas City, Kansas, 857 F.2d 690, 697 (10th Cir. 1988)); Temkin v.
Frederick County Comm'rs, 945 F.2d 716, 724 (4th Cir. 1991); Roach
v. City of Fredericktown, 882 F.2d 294, 297-98 (8th Cir. 1989).
A Third Circuit panel subsequently cast doubt on the
continued vitality of Fagan v. City of Vineland, 22 F.3d 1283, 1293
(3d Cir. 1994), in a more recent sec. 1983 case, in which the panel
affirmed the lower court's grant of summary judgment for a
municipality after finding no underlying constitutional violation.
Mark v. Borough of Hatboro, 51 F.3d 1137, 1155 (3d Cir.), cert.
denied, 116 S. Ct. 165 (1995). The panel observed, "It appears
that, by focusing almost exclusively on the 'deliberate
indifference' prong of the Collins [v. City of Harker Heights,
Tex., 503 U.S. 115 (1992)] test, the panel opinion [in Fagan] did
not apply the first prong -- establishing an underlying
constitutional violation." Mark, 51 F.3d at 1153 n.13.
In a treatise on sec. 1983, one commentator explained the
problem in Fagan: "the Third Circuit, after acknowledging that a
substantive due process violation requires conscience shocking
conduct, nevertheless concluded that the city could be liable
merely for its deliberate indifference in failing to train its
police officers." Sheldon H. Nahmod, Civil Rights and Civil
Liberties Litigation: The Law of Section 1983 sec. 6.07, at 274
See, e.g., Lewis v. Sacramento County, 98 F.3d 434, 441 (9th
Cir. 1996), cert. granted, 117 S. Ct. 2406 (1997) (adopting
standard of "deliberate indifference to, or reckless disregard for,
a person's right to life and personal security"); Temkin v.
Frederick County Comm'rs, 945 F.2d 716, 719, 723 (4th Cir. 1991)
(requiring conduct that shocks the conscience); Jones v. Sherrill,
827 F.2d 1102, 1106 (6th Cir. 1987) (requiring grossly negligent or
outrageous conduct); Cannon v. Taylor, 782 F.2d 947, 948-50 (11th
Cir. 1986) (reasoning that even grossly negligent conduct by police
is not actionable under sec. 1983).
In his cross-appellee's brief, Hildebrandt argued for the
first time that this court should use the "deliberate indifference
or reckless disregard"standard set forth by the Ninth Circuit in
Lewis v. Sacramento County, 98 F.3d 434, 441 (9th Cir. 1996).
Hildebrandt moved to amend the points on cross-appeal, asking the
court to address the standard for sec. 1983 individual officer
liability in light of Lewis. The court denied his motion on March
Similarly, courts that have applied tests other than "shock
the conscience"have also found conduct more egregious than
Williamson's not to rise to the level of a substantive due process
deprivation, regardless of the standard. See, e.g., Jones v.
Sherrill, 827 F.2d 1102, 1104-07 (6th Cir. 1987) (holding that
police officer's nine-mile pursuit of suspect within city limits at
speeds ranging from 120 to 135 miles per hour, which caused the
death of an innocent driver, would not sustain a sec. 1983 claim);
Cannon v. Taylor, 782 F.2d 947, 948-50 (11th Cir. 1986) (holding
that officer's pursuit did not rise to the level of a
constitutional violation, where officer chased suspect at 46 miles
per hour in 30 miles-per-hour zone, without sirens or lights, and
killed an innocent driver).
In its cross-appeal, the City argues that the superior court
used improper legal standards for imposing municipal liability for
failure to train, and that there was insufficient evidence to
support the court's finding that the City was deliberately
indifferent to its citizens' constitutional rights. Given our
resolution of Hildebrandt's appeal, the issues raised on cross-
appeal are moot.