Rehearing of an appeal from a judgment of the United States District Court for the District of Connecticut, Blumenfeld, J., dismissing plaintiff-appellant's complaint. Portion of earlier decision remanding to the district court is vacated and the judgment of the district court is affirmed in its entirety. Affirmed. Original Opinion Reported at,.
Before: MESKILL and PRATT, Circuit Judges, and PALMIERI,*fn* District Judge.
PALMIERI, District Judge:
Having heard reargument, we now conclude that the part of our earlier decision, Dodd v. City of Norwich, F.2d (2d Cir. 1987), providing for a remand to the district court should be vacated and that the judgment of the district court should be affirmed in its entirety. We hold that, as a matter of law, no fourth amendment violation or municipal negligence was responsible for the course of events underlying this litigation. The discussion that follows assumes familiarity with our prior opinion.
In our earlier decision we remanded the case to the district court to consider whether Larson's shooting of Dodd was an unreasonable seizure under the fourth amendment in accordance with Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985). The recognition of a valid cause of action in Garner, however, does not justify an inquiry by the district court as to whether the "seizure" of Dodd was reasonable. Garner bears the deliberate use of deadly force to seize an unharmed, fleeing, suspected felon. 471 U.S. at 11. Here we are dealing with the inadvertent shooting of an already apprehended burglar during a struggle initiated by him in an attempt to disarm the arresting officer and after he had apparently surrendered. Larson's shooting of Dodd was not for the purpose of seizing him. The shooting was a pure accident. For all intents and purposes, the seizure of Dodd had already taken place by the time Larson placed a cuff on one of Dodd's wrists. Larson did not act unreasonably in seizing Dodd in this fashion.
It makes little sense to apply a standard of reasonableness to an accident. If such a standard were applied, it could result in a fourth amendment violation based on simple negligence. The fourth amendment, however, only protects individuals against "unreasonable" seizures, not seizures conducted in a "negligent" manner. The Supreme Court has not yet extended liability under the fourth amendment to include negligence claims. Only cases involving intentional conduct have been considered by the Supreme Court. Negligence, in fact, has been explicitly rejected as a basis for liability under the fourteenth amendment. See Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Davidson v. Cannon, 474 U.S. 344, 88 L. Ed. 2d 677, 106 S. Ct. 668 (1986). Larson, therefore, did not deprive Dodd of any constitutional rights in effectuating the arrest.
The original panel decision also held that the city can be held liable under Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), if the police department training policy caused Dodd's death, even if Larson was not negligent. We, therefore, remanded the section 1983 claim against the city for further consideration under Monell. This holding, however, is incompatible with the Supreme Court's decision in City of Los Angeles v. Heller, 475 U.S. 796, 106 S. Ct. 1571, 89 L. Ed. 2d 806 (1986). In that case, the Court stated: "if a defendant has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionality excessive force is quite beside the point." Id. at 1573. Thus, since Larson did not violate Dodd's fourth amendment rights, the city cannot be held liable for a constitutional violation under 42 U.S.C. § 1983. See also Swink v. City of Pagedale, 810 F.2d 791, 794-95 (8th Cir. 1987) (following Heller).
Our original panel decision upheld the district court's rejection of Dodd's wrongful death claim on the grounds that Larson was not negligent in apprehending Dodd, but went on to hold that a wrongful death action may be maintained against the city for negligent adoption of the gun use policy. The problem with that analysis is that Larson followed the gun use policy to the letter. It has already been determined that Larson's actions were not negligent and were, in fact, reasonable. Judge Blumenfeld specifically stated that "it was not negligent for the defendant to place his finger on the trigger while holding his gun." The judge clearly did not believe Dodd's expert who testified that this policy of keeping a gun in hand while attempting to handcuff a suspect was dangerous and contrary to the practice of most police departments. Because the district court has held that the procedure followed by Larson was reasonable, it follows that the city cannot be held liable in negligence for adopting it. Accordingly, this portion of the prior panel decision is vacated.
The decision of the district court is therefore affirmed in its entirety.
PRATT, Circuit Judge, dissenting:
The majority's disposition of this appeal establishes significant law for this circuit. Because of the brevity of the majority opinion, I think it is important for future cases to highlight its holdings, both explicit and implicit, even though I disagree with them. The majority holds:
(1) Once of police officer applies a single handcuff to an arrestee, the "seizure" is complete for fourth amendment purposes (indeed, "for all intents and purposes"), and there is no duty of reasonableness under Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985), for anything that follows.
(2) Any municipal arrest policy, so long as it does not authorize the intentional use of unreasonable force, is immune from fourth amendment scrutiny, no matter how likely it might be to cause "inadvertent" injuries or deaths.
(3) The Supreme Court's holdings in Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986), and Davidson v. Cannon, 474 U.S. 344, 88 L. Ed. 2d 677, 106 S. Ct. 668 (1986), that a deprivation of due process cannot result solely from negligence, extend to deprivations of the fourth amendment right to be free of unreasonable ...