Filed: Jul. 16, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 7-16-2004 Hall v. Feigen Precedential or Non-Precedential: Non-Precedential Docket No. 03-2784 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Hall v. Feigen" (2004). 2004 Decisions. Paper 496. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/496 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 7-16-2004 Hall v. Feigen Precedential or Non-Precedential: Non-Precedential Docket No. 03-2784 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Hall v. Feigen" (2004). 2004 Decisions. Paper 496. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/496 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-16-2004
Hall v. Feigen
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2784
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Hall v. Feigen" (2004). 2004 Decisions. Paper 496.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/496
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 03-2784
_______________
ELIZABETH R. HALL
v.
TRACY FEIGAN;
TEMPTATIONS I, INC.
d/b/a THE NEW GOLDEN MOON;
JOHN DOE, MANAGER;
JOHN DOE, BARTENDER;
EASTAM PTON TOWNSHIP;
GERALD MINGIN, POLICE CHIEF;
JOHN DOE, CAPTAIN;
JOHN DOE, LIEUTENANT;
JOHN DOE, SERGEANT;
STEPHEN SAWYER, POLICE OFFICER
(N.J. (Camden) D.C. No. 00-cv-06254)
DANIEL MCCORMACK, ESQ., Guardian of
Elizabeth R. Hall, an incapacitated person;
ELIZABETH R. HALL
v.
TRACY FEIGEN a/k/a TRACEY FEIGEN;
TEMPATIONS I, INC.,
a/k/a NEW GOLDEN MOON, a/k/a GOLDEN MOON
d/b/a THE NEW GOLDEN MOON;
LOUIS SERLENGA; JAMES SERLENGA; SERLENGA, INC.
JOHN DOE, MANAGER; JOHN DOE, BARTENDER;
ABC FICTITIOUS CORPORATION; JOHN DOES, #1-15;
EASTAM PTON TOWNSHIP; GERALD MINGIN, POLICE CHIEF;
JOHN DOE, CAPTAIN; JOHN DOE, LIEUTENANT;
JOHN DOE, SERGEANT; STEPHEN SAWYER, POLICE OFFICER
(N.J. (Camden) D.C. No. 01-cv-01639)
Elizabeth R. Hall;
Daniel M cCormack, Esq.,
Appellants
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Nos. 00-cv-06254 and 01-cv-01639)
District Judge: Honorable Robert B. Kugler
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
June 28, 2004
Before: AMBRO, BECKER and GREENBERG, Circuit Judges
(Filed: July 16, 2004)
_______________________
OPINION
_______________________
BECKER, Circuit Judge.
I.
A.
2
This appeal by Elizabeth R. Hall from the grant of summary judgment against her
in favor of the defendants Eastampton Township, Chief Gerald Mingin, and Police
Officer Stephen Sawyer is set in tragic circumstances. The facts, as set forth in Hall’s
brief, which must be viewed in the light most favorable to her as the non-moving party,
are as follows.
On April 10, 1999, at approximately 1:45 a.m., Hall was backing out of her
driveway when her car was struck by a vehicle driven by Tracy Feigan. As a result of the
accident, Hall suffered permanent brain damage and is no longer able to take care of her
child. Shortly before crashing into Hall’s car, Feigan, a 27-year-old go-go dancer, had
stopped at a Mobil On the Run gas station convenience store, having just left work at the
Golden Moon strip club, where she had consumed at least five alcoholic beverages during
her shift. When Feigan entered the Mobil On the Run, she recognized defendant Stephen
Sawyer, a police officer of defendant Eastampton Township, who had stopped her for
speeding approximately two months before. Sawyer was on duty at the time of the
convenience store encounter.
Feigan was a recidivist speeder who had been classified by the State of New Jersey
as a “persistent violator.” She had eleven speeding convictions and her driving privileges
had been suspended ten times. When Officer Sawyer had stopped Feigan for speeding
approximately two months before, he had downgraded Feigan’s offense and had only
cited her for not wearing a seatbelt, a non-moving violation, because given the excessive
3
number of points on her license, she would have lost her driving privileges if she had
been convicted of speeding. Not surprisingly, when Feigan encountered Sawyer at the
convenience store on April 10, 1999, she went up to him, kissed him on the cheek and
thanked him for not giving her a speeding ticket a couple of months before. When she
did so, Sawyer smelled alcohol on her breath and hence knew that she had been drinking.
At the time, Feigan was smoking a cigarette in the store, and Sawyer repeatedly
told her to put it out. It was Sawyer’s understanding that Feigan had just gotten off work
at the Golden Moon, where the go-go dancers are given drinks as tips. Despite this
knowledge, and the fact that he knew Feigan had been drinking and thought that she was
intoxicated, and also despite the fact that Sawyer knew that she had a very poor driving
record, Sawyer did not attempt to determine if Feigan was drinking and driving, or
attempt to enforce the driving while intoxicated laws against her. Feigan testified that
while she was talking to Sawyer in the convenience store, she probably had her keys in
her hand.
After joking around with Officer Sawyer, Feigan left the store and got behind the
wheel of her car, which was parked in front of the convenience store and easily visible to
Sawyer. Less than five minutes later she crashed into Hall’s car. At the time of the
collision, Feigan did not have her headlights on.
B.
4
Hall’s position on appeal is that the facts support a substantive due process claim
against the defendants on two levels. First, Hall maintains that Sawyer’s decision not to
enforce the driving while intoxicated laws against Ms. Feigan was arbitrary and
capricious and “shocks the conscience.” County of Sacramento v. Lewis, 523 U.S. 833,
846 (1998). Second, she submits that the policy and/or custom of Eastampton Township
of allowing its police officers “unfettered discretion” violated the Due Process Clause by
failing to provide any guidelines or limits on their discretion, and that this policy and/or
custom authorized and encouraged the unconstitutional arbitrary and discriminatory
enforcement of the law. See City of Chicago v. Morales,
527 U.S. 41, 56, 63-64 (1999). 1
Defendants respond that this case involves no more than negligence, for which the
Constitution does not provide a remedy. The District Court, after analyzing the relevant
cases, concluded that Hall had not been deprived of a constitutionally protected right.
The case is not easy to categorize, and there is no precedent directly on point. However,
reasoning upon general Constitutional principles, we are satisfied that we must affirm.
II.
In order to maintain a § 1983 claim, “a plaintiff must show that the defendant
deprived him of a right or privilege secured by the Constitution or laws of the United
1
There is some confusion as to whether Hall proceeded in the District Court on a state
created danger theory of liability, but she has clearly disclaimed any reliance on that
theory in this appeal.
5
States while acting under color of state law.” Williams v. Borough of West Chester, 891
F.2d 458, 464 (3d Cir. 1989). As noted above, Hall relies principally on County of
Sacramento v. Lewis,
523 U.S. 833, and the proposition that Sawyer’s decision not to
enforce the driving while intoxicated laws against Feigan was arbitrary and capricious
and “shocks the conscience.” Hall’s brief enjoins us to view the record as a whole, to
focus sharply on the circumstances facing the police officer, and to consider the lofty
principles that generally govern the obligations of police officers. It also urges us to
focus on the principles reflected in Section 3:10.2 of the Eastampton Police Manual,
which provides that “All members. . . must remain completely impartial toward all
persons coming to the attention of the department.” The handbook also charges
Eastampton Township police officers “with the enforcement of all provisions of local and
state traffic codes,” and provides that “[f]ailure to take appropriate action in traffic
violations cases is considered neglect of duty.”
We have considered all these matters just as Hall suggests, but are unable to
conclude that the failure of Officer Sawyer to take action under the facts described in Part
I.A satisfies the exacting “shocks the conscience” test. Moreover, Hall cites to no case
with facts anywhere similar to those that support her position.
To be sure, when a person is damaged by outrageous police conduct but the
resulting injury does not neatly fit within a specific constitutional remedy, the injured
party may, depending upon the circumstances, pursue a substantive due process claim
6
under § 1983. See United States v. Smith, 7 F.3d 1164, 1168 (9th Cir. 1993) (explaining
that circumstances surrounding entrapment are particularly prone to implicate notions of
fundamental fairness). But the conduct at issue in this case was not outrageous: Sawyer
never even saw Feigan operate the automobile. While Sawyer may well have been
negligent, the Due Process Clause is not implicated by a negligent act causing unintended
loss of or injury to life. See Daniels v. Williams,
474 U.S. 327 (holding that injuries
sustained by a prisoner due to the negligent conduct of a correctional officer did not
constitute a deprivation of a Fourteenth Amendment right).
In DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189 (1989), the
Supreme Court explained that “nothing in the language of the Due Process Clause itself
requires the State to protect the life, liberty, and property of its citizens against invasion
by private actors. The Clause is phrased as a limitation on the State’s power to act, not as
a guarantee of certain minimal levels of safety and security.”
Id. at 195. The Court
further explained that the Due Process Clause “forbids the State itself to deprive
individuals of life, liberty, or property without ‘due process of law,’ but its language
cannot fairly be extended to impose an affirmative obligation on the State to ensure that
those interests do not come to harm through other means.”
Id. In the absence of a duty to
protect Hall, and in the absence of evidence that Sawyer acted in willful disregard of
actual knowledge of a serious risk of Hall’s safety (there is none under the facts recited in
Part I.A), the case does not come close to meeting the “shocks the conscience” test.
7
III.
Hall also claims that she produced sufficient facts from which a jury could infer
that Eastampton Township had an unconstitutional policy and/or custom of allowing its
police officers unbridled discretion in the enforcement of the law. In particular, she
points to the testimony of Policy Chief Mingin who explained in his deposition that
Eastampton Township police officers could exercise their discretion in deciding whether
to charge individuals with certain driving offenses or whether to downgrade the charges,
again solely at the officer’s discretion. Hall contends that this testimony is sufficient to
establish an unconstitutional policy and/or custom.
Hall’s argument rests largely on Kolender v. Lawson, 461 U.S. 352 (1983), where
the Supreme Court held that without “minimal guidelines, a criminal statute may permit a
standardless sweep [that] allows policemen, prosecutors, and juries to pursue their
personal predilections” and vests in police “a virtually unrestrained power to arrest and
charge persons with a violation.”
Id. at 358, 360 (internal quotation marks and citations
omitted). Hall’s reliance on Kolender is misplaced. In Kolender, the Supreme Court
determined that a statute which required persons who loitered to provide a credible and
reliable identification and to account for their presence, when requested by a peace officer
under circumstances that would justify a Terry stop, was unconstitutionally vague within
the meaning of the Due Process Clause of the Fourteenth Amendment. The Court so held
8
(1) because the statute failed to clarify what was contemplated by the requirement that a
suspect provide a credible and reliable identification and (2) because the statute vested
complete discretion in the hands of the police to determine whether the suspect had
satisfied the statute and was therefore free to go in the absence of probable cause to
arrest. But in this case, Hall does not allege that the police over-reached, as the statute in
Kolender permitted. Rather, she complains that Officer Sawyer under-reached by failing
to conduct an investigation even though he had reason to believe that Feigan was
intoxicated.
The difference is significant. While Kolender had a constitutionally protected
right to be free of discriminatory conduct directed at him, Hall has no substantive due
process right, as a third party, to be the beneficiary of non-discriminatory (here
preferential) conduct allegedly directed at Feigan. While Officer Sawyer’s decision not to
investigate the state of intoxication of a go-go dancer who kissed him in gratitude for
having previously not ticketed her for speeding may seem unsavory, Officer Sawyer had
no specific duty to conduct such an investigation under the circumstances of this case.
Despite her protestations to the contrary, Hall can point to no cognizable substantive due
process right that was violated in this situation.
IV.
Because Hall can establish neither that Officer Sawyer’s decision not to investigate
9
Feigan’s level of intoxication was arbitrary and capricious nor that the policy and/or
custom of Eastampton Township allowed its police officers “unfettered discretion” that
violated the Due Process Clause by failing to provide any guidelines or limits on their
discretion, we will affirm the District Court’s grant of summary judgment to the
defendants.
10
