Plaintiff appeals from a judgment of the United States District Court for the District of Connecticut (Blumenfeld, J.) dismissing, after a nonjury trial, plaintiff's claims of negligence and civil rights violations under 42 U.S.C. § 1983. As to defendant Larson, affirmed in part and reversed and remanded in part; as to defendant City of Norwich, reversed and remanded. Judge Palmieri dissents in a separate opinion.
Before: MESKILL and PRATT, Circuit Judges, and EDMUND L. PALMIERI, District Judge of the Southern District of New York, sitting by designation.
Velma Dodd, individually and as administratrix of the estate of her son, Dwayne Dodd, appeals from the dismissal of her complaint after a bench trial. She seeks damages for the death of her son, who was shot to death in a struggle over the gun of defendant Eric Larson, a relief police officer working part time for defendant City of Norwich, while Larson was trying to handcuff Dodd.
Plaintiff's claims against officer Larson and the city asserted both civil rights violations pursuant to 42 U.S.C. § 1983 and negligence under Connecticut's wrongful death statute, Conn. Gen. Stat. § 52-555. On the § 1983 claim the district court found that officer Larson did not violate Dodd's constitutional rights and was therefore not liable. In addition, the court concluded, erroneously as we point out below, that absent a constitutional violation by Larson there could be no § 1983 claim against the city. On the pendent state law wrongful death claim the court found that officer Larson was not negligent. Accordingly, the district court directed entry of judgment in favor of the defendants.
For the reasons set forth below, as to officer Larson, we affirm the dismissal of the wrongful death claim on the basis that he was not negligent, but reverse the judgment on Dodd's constitutional claims and remand for reconsideration under the fourth amendment. As to the City of Norwich, we reverse both the constitutional claims and the wrongful death action and remand for reconsideration of whether the adoption of the municipal policy followed by Larson violated the fourth amendment and/or was negligent under state law.
The facts surrounding the tragic death of this sixteen year old boy are graphically set forth in the district court's opinion:
Dwayne Dodd and Jervis Bell were [burglarizing] a house in the City of Norwich, which, unbeknownst to them, was equipped with a silent burglar alarm. Two police officers were dispatched to the house: Eric Larson and Larry Rice. Larson took a position at the read of the house and Rice at the front of the house. Rice observed, through the front door, two persons inside the house and informed Larson that there were two or more burglars. Shortly thereafter, Dodd stuck his head out an open window in the rear of the house. Larson, with his gun drawn, ordered Dodd to come out of the house. Dodd complied and fell through the window to the ground below among some shrubs.
While Dodd was lying on the ground, Rice returned to the rear of the house and saw Dodd. Then Rice went again to the front of the house and apprehended Bell who ran out the front door. While Rice was in the front, Larson decided to handcuff Dodd. To accomplish this task, Larson ordered Dodd to place both hands in front of his head and lie with his face on the ground. (Dodd had fallen with his left hand in front of his head and his right arm bent with his hand partly under his chest.) Dodd did not comply and remained in the position in which he had fallen. Larson then approached the [decedent] and knelt in front of Dodd's head within one foot of him. With the gun held in his right hand, Larson placed a cuff on Dodd's left wrist. Larson then pulled the left wrist to the small of Dodd's back. Larson released the left hand and the handcuffs and reached for Dodd's right hand. Dodd then jerked forward and reached, with his right hand, for Larson's gun. Larson instinctively reacted by pulling his hand (and the gun) away from Dodd. During this scuffle, the gun discharged and Dodd died within a few minutes.
A. Claims Against Officer Larson.
1. Constitutional Claims.
Since decision of this case by the district court, the Supreme Court has provided us with additional enlightenment as to the rules applicable to constitutional claims such as plaintiff asserts here. In Daniels v. Williams, 106 S. Ct. 662 (1986), and Davidson v. Cannon, 106 S. Ct. 668 (1986), the Court overruled Parratt v. Taylor, 451 U.S. 527 (1981), "to the extent that it states that mere lack of due care by a state official may 'deprive' and individual of life, liberty or property under the fourteenth Amendment." Daniels, 106 S. Ct. at 665. The due process clause "is not implicated by the lack of due care of an official causing unintended injury to life, liberty or property." Davidson, 106 S. Ct. at 670. According to the Court, "[h]istorically, this guarantee of due process has been applied to deliberate decisions of government officials to ...