Lorna Cassady v. Thurman Tackett, Individually and in His Capacity as Johnson County Jailer

938 F.2d 693, 1991 U.S. App. LEXIS 16149, 1991 WL 133858

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 24, 1991
• Docket: 89-5679
• Status: Published

Opinions

PER CURIAM.

Lorna Cassady, Executive Director of a multi-county jail located in Johnson County, Kentucky, brought this 42 U.S.C. § 1983 action against Thurman Tackett, the Johnson County jailer, for deprivation of her substantive due process rights under the fourteenth amendment. Cassady alleges that she was forced to barricade herself in her office after Tackett and his deputies threatened to kill her. Her complaint also included pendent state claims of false imprisonment and outrageous conduct. The District Court granted defendant Tackett’s motion for summary judgment on the section 1983 claim, finding that his alleged behavior had not violated any of Cassady’s constitutional rights. The court then declined to accept jurisdiction over the pendent state claims and dismissed them without prejudice. We REVERSE.

I. FACTS

The Big Sandy Regional Jail, located in Paintsville, Johnson County, Kentucky, was constructed through the joint efforts of Martin, Lawrence, Magoffin and Johnson Counties. Not long into the venture, a dispute arose over whether the facility would be operated by the Regional Jail Authority or Johnson County authorities, principal among them Tackett, the elected county jailer. The Regional Jail Authority initially prevailed in state court litigation on this dispute, but Tackett appealed. While the appeal was pending, the Authority agreed to employ Tackett in the jail, apparently to supervise the incarceration and handling of prisoners. Meanwhile, in the fall of 1987, the Regional Authority had appointed Lorna Cassady Executive Director of the jail.

This arrangement proved ill-advised from the start. Cassady alleges that Tackett continually contested her authority to manage the jail and that their dispute grew increasingly bitter. According to Cassady, Tackett frequently ignored her, and on one occasion stated that she had no business at the facility and that his wife should have her position. In early January 1988, in response to the latest skirmish in their administrative turf dispute, Tackett allegedly shouted at Cassady that she was restricted to a certain area of the jail and dared her to venture further. Cassady claims that Tackett emphasized the order by drawing back his coat to reveal a holstered gun. The two apparently also clashed over whether Regional Jail Authority policy prohibited Tackett and his deputies from carrying guns within the jail.

The events giving rise to this cause of action occurred on January 13, 1988, when the smoldering cinders flared. By Cassa-dy's account, Tackett stormed into her outer office, shouting and cursing at her over the latest clash in their running conflict. Tackett was accompanied by several of his deputies, including his son Dewayne who, like Tackett, was allegedly armed that day as usual. Cassady claims that Tackett’s son and then others threatened to kill her and her husband, who was present at the time.¹ Fearing for their safety, Cassady and her husband locked themselves in her inner office, where they remained for forty-five minutes until the county sheriff summoned by Cassady escorted them from the building.

II. DID TACKETT ACT “UNDER COLOR OF STATE LAW”?

The initial inquiry in an action under 42 U.S.C. § 1983 focuses on two essential elements: (1) was the defendant official acting under color of state law? and (2) did the official’s conduct deprive the plaintiff of a right secured by the Constitution or federal statute? See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), (overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). We consider these questions in turn.

A public official has acted “under color of state law” when he has “exercised power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 2255, 101 L.Ed.2d 40 (1988) (quoting United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941)). “It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the State.” West, 487 U.S. at 49-50, 108 S.Ct. at 2255-56 (citing Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961)).² Thus, “before a defendant may be held liable under section 1983, that defendant must first possess power by virtue of state law, then misuse that power in a way that violates federal constitutional rights.” Christian v. Belcher, 888 F.2d 410, 414 (6th Cir.1989) (emphasis in original).

Our Circuit has held that an off-duty police officer’s use of his gun could be action under the color of state law because he had authority under state law to carry the gun only by virtue of being a police officer, and because the dispute in which he used the gun originated in the performance of his official duties. Layne v. Sampley, 627 F.2d 12, 13 (6th Cir.1980). Other courts have also held that various official actions in the work place are taken “under color of state law.” In Ruhlman v. Barger, 435 F.Supp. 447, 448 (W.D.Pa.1976), the court ruled that a state police commissioner and officers acted under color of state law in ordering the punitive transfer of another officer, even though such transfers were forbidden under department regulations.

Here, we are obliged to conclude that in allegedly flourishing and threatening to use his gun against Cassady, Tackett acted under color of state law. As in Layne, Tackett had authority or power to carry the gun in the jail only because he was the elected jailer of Johnson County. That Tackett acted against a fellow public employee is of no matter, as Ruhlman demonstrates.

III. WAS CASSADY DEPRIVED OF A CONSTITUTIONAL RIGHT?

The District Court disposed of Cassady’s claim of constitutional injury by relying principally on Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). The Court in Baker concluded that an allegedly negligent arrest based on mistaken identity could not support a section 1983 action for deprivation of liberty. While generally relevant in holding that not all state tort claims rise to the level of federal constitutional deprivations, Baker does not speak directly to Cassady’s claims, which are based on intentional, not negligent, action under color of state law.

A. Fourth Amendment³

The fourth amendment’s protection against unreasonable seizures is triggered “ ‘only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” United States v. Rose, 889 F.2d 1490, 1493 (6th Cir.1989) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). “What constitutes a restraint on liberty prompting a person to conclude that [she] is not free to leave will vary with the police conduct at issue and the setting in which the conduct occurred.” Rose, 889 F.2d at 1493. Coercive or intimidating behavior supports a reasonable belief that compliance is compelled. United States v. Collis, 766 F.2d 219, 221 (6th Cir.), cert. denied, 474 U.S. 851, 106 S.Ct. 150, 88 L.Ed.2d 124 (1985).

While nearly all seizure cases involve the arrest of a private person by a police officer, this family of precedent includes some interesting cousins. These atypical cases suggest several potentially relevant principles of law. First, it is apparent that the fourth amendment protects public officials such as Cassady from unreasonable government searches and seizures. See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989) (drug testing of public employees constitutes a search under the fourth amendment); O’Connor v. Ortega, 480 U.S. 709, 715, 107 S.Ct. 1492, 1496, 94 L.Ed.2d 714 (1987) (plurality) (public hospital psychiatrist suspected of professional improprieties is protected against unreasonable search of his office by supervisors); Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 489 (9th Cir.1986) (search of police officer to investigate alleged work-related misconduct must meet reasonable suspicion standard of the fourth amendment); Security & Law Enforcement Employees v. Carey, 737 F.2d 187, 203-04 (2d Cir.1984) (search of prison employees to investigate work-related misconduct falls under the fourth amendment); Biehunik v. Felicetta, 441 F.2d 228, 230 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971) (the compelled appearance of 62 police officers in a lineup for possible identification as wrongdoers could be considered a “seizure” under the fourth amendment).

Secondly, Cassady need not have been accused of wrongdoing to enjoy the protections of the fourth amendment. “It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967). See also Lessman v. McCormick, 591 F.2d 605, 612 (10th Cir.1979) (plaintiff stated a 1983 claim in alleging that a police officer arrested her for a minor infraction solely to intimidate her and assist the officer’s friend in recovering on an overdue loan made to her); Inada v. Sullivan, 523 F.2d 485, 488 (7th Cir.1975) (plaintiff stated a section 1983 action by alleging he was arrested solely because the arresting officer disliked and was prejudiced against him); Williams v. Tansey, 610 F.Supp. 1083, 1085 (E.D.Pa.1985) (same).

In this case, both the District Court and Tackett analyzed Cassady’s deprivation of liberty claim under the fourth amendment. The District Court concluded that because Tackett’s conduct consisted only of threats, and there was no infliction of any physical wrong, the allegations and evidence even in the light most favorable to her did not constitute a seizure. If Cassa-dy reasonably believed that her freedom of movement was restrained and that she was compelled to remain within her office lest Tackett or his deputies make good their threats to kill her, she may be able to establish a seizure within the meaning of the fourth amendment. See Rose, 889 F.2d at 1493. The threats may have confined Cassady as effectively as fetters. That both parties here are prison officials and that this kind of conduct has no legitimate law enforcement purpose arguably is of no matter on the authority of Von Raab, Camara and the other cases cited above.

In Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989), the Court directed that “[i]n addressing an excessive force claim brought under § 1983, analysis begins by identifying the specific constitutional right allegedly infringed by the challenged application of force.... The validity of the claim must then be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized ‘excessive force’ standard.” In reference to claims arising under the fourth amendment’s prohibition against unreasonable seizures, the Court, citing Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), noted “that the ‘reasonableness’ of a particular seizure depends not only on when it is made, but also on how it is carried out.” Graham, 490 U.S. at 395, 109 S.Ct. at 1871 (emphasis in original). Accordingly, Tackett’s alleged actions must be examined under the totality of the circumstances to determine whether they were objectively reasonable. Id. at 397, 109 S.Ct. at 1872; Garner, 471 U.S. at 8-9, 105 S.Ct. at 1699-700.

Tackett has not defended this action on the basis that he had a right to terrorize Cassady, thus forcing her to confine herself to her office. Further, examined under the standard of objective reasonableness, there appears to be no legitimate reason for Tackett’s alleged actions as described by plaintiff. Not every threat will arise to the level of a constitutional violation, of course.⁴ But where the credibility of the threats presents a jury question as to whether the threats foreseeably resulted in the seizure of the person, a constitutional violation can occur. Cf. Black v. Stephens, 662 F.2d 181, 188 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982); Douglas v. Marino, 684 F.Supp. 395, 398 (D.N.J.1988). Since it appears that Tackett’s threats did cause a loss of liberty, we need not decide what level of emotional distress, without more, is necessary to establish a constitutionally cognizable injury when the injury results from unreasonable threats of force.

B. The Due Process Clause of the Fourteenth Amendment⁵

Cassady contends with little elaboration that her stand-off with Tackett on January 13, 1988 “shocks the conscience” in a civilized society. The “shock the conscience” language of course comes from Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), where the Court held that police conduct in pumping a suspect’s stomach in search of evidence violates due process standards. In support of her claim, Cassady cites only White v. Rockford, 592 F.2d 381 (7th Cir.1979). There it was held that police abandonment of an arrestee’s children on a highway late on a cold night shocked the conscience and deprived them of due process rights. 592 F.2d at 383-84. Because White presents entirely different facts, it seems that the “shocks the conscience” holding in that case has little if any relevance to the present one. Trying to apply White to this case highlights the inchoate nature of the “shocks the conscience” standard, but is otherwise unhelpful. In Braley v. City of Pontiac, 906 F.2d 220, 224-25 (6th Cir.1990), this Circuit recently discussed this point in the context of a section 1983 suit against a police officer for false arrest, false imprisonment and malicious prosecution:

Applying the “shock the conscience” test in an area other than excessive force ... is problematic. Not only are there fewer instances in the case law, but the “shock the conscience” test is not as uniformly applied to cases where excessive force or physical brutality is not the basis of the claim. The “shock the conscience” standard, fuzzy under the best of circumstances, becomes fuzzy beyond a court’s power to interpret objectively where there is a dearth of previous decisions on which to base the standard. We doubt the utility of such a standard outside the realm of physical abuse, an area in which the consciences of judges are shocked with some degree of uniformity.

Braley, 906 F.2d at 226. Since the present case, like Braley, does not concern physical abuse, we are reluctant to apply the “shock the conscience” standard.⁶

In summary, Cassady has presented evidence from which a jury might find an illegal seizure within the meaning of the Fourth Amendment. However, her substantive due process claim falls short. Accordingly, the judgment of the District Court is REVERSED and the action REMANDED to the District Court for further proceedings.

1 . It is not at all clear from the evidence whether Tackett himself threatened to kill Cassady, or whether his deputies’ threats could be imputed to him. We assume either scenario for purposes of ruling on Tackett’s motion for summary judgment.

2 . The only exception which the Supreme Court has carved out from these principles is a narrow one for public officials who perform an essentially private function. Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (holding that a public defender does not act under color of state law when defending a client in a criminal proceeding); see West, 487 U.S. at 50, 108 S.Ct. at 2256 (noting that this category is unique). The exception obviously does not apply to Tackett's situation.

3 . Cassady did not raise the fourth amendment issue, instead relying on a due process argument. Since the District Court and the defendant on appeal analyzed her claim under the fourth amendment as well, however, we address the issue to resolve the case completely.

4 . Not all threats made by a government official will give rise to a § 1983 cause of action. Most threats that occur in the context of a dispute between co-workers will not occur under color of state law. In the case before us, the District Court determined that this action was committed under state law because Tackett’s acts were facilitated by use of the unique authority granted him as the Jailer of Johnson County. This aspect of the decision was not appealed.

5 . Cassady has alleged a substantive due process violation in her complaint. We recognize that the Supreme Court has held that a claim against police officers for the use of excessive force in the course of an arrest or other "seizure” is properly analyzed under the fourth amendment’s "objective reasonableness” standard rather than under substantive due process. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Admittedly, ”[a]fter Graham, the status of the ‘shock the conscience’ test in contexts other than allegations of excessive force is uncertain." Braley v. City of Pontiac, 906 F.2d 220, 226 (6th Cir.1990). However, the Court in Graham only addressed excessive use of force by police officers and we do not elect to extend the Court’s holding beyond the law enforcement context.

Certainly the Supreme Court continues to recognize that the Due Process Clause has a “substantive component,” see DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 199, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989), and a due process violation may be found when a plaintiff has been deprived of a recognized property or liberty interest. Cassady’s claim alleging a violation of substantive due process may properly be analyzed as such. We disclaim any attempt today to expand or contract the "ephemeral concept" of substantive due process, however, see Gutzwiller v. Fenik, 860 F.2d 1317, 1328 (6th Cir.1988), choosing instead to address Cassady’s claim as alleged within the confines of present law.

6 . Even assuming that we still see merit in the Seventh Circuit’s decision in White that behavior other than physical violence may “shock the conscience,” 592 F.2d at 384, that case concerns the far different circumstances of police treatment of private citizens in the course of law enforcement. White thus would not establish a due process violation in the present case.