U.S. Court of Appeals 6th Circuit Case Summaries: February 27, 2006.(United States Constitution. 6th Amendment)

Byline: Michigan Lawyers Weekly Staff

Civil Rights

Section 1983 - No Substantive Due Process Violation

Where the decedent was beaten to death inside a residence, county defendants are not liable for violating the decedent's substantive due process rights on a theory that they either created or increased the risk of harm to the decedent by responding to her 911 calls but then clearing the calls after the police could not detect a disturbance.

Background

The decedent, Kirk and her boyfriend, Moss, began fighting. As the conflict escalated, Kirk called 911 three times. After the second call, the police were dispatched. "The police officer who arrived at the scene did not hear any signs of a dispute within Kirk's apartment. When neighbors told the officer that they were not aware of any conflict inside the apartment, the officer cleared the call and left the scene. Unbeknownst to the officer, Moss was restraining Kirk inside the apartment, and their conflict continued after the officer left, with Moss eventually killing Kirk." Moss later testified that both he and Kirk were fighting when the officer knocked on the door but that they both remained quiet until he left.

Kirk's estate sued the police and governmental entities. This appeal involves the trial court's grant of summary judgment to the county defendants on the basis that nothing they did either created or increased the risk of harm to Kirk.

"In order to prevail on her Sect. 1983 substantive due process claim, May [the administrator of Kirk's estate] must satisfy Kallstrom's first factor by showing that Franklin County took affirmative steps that either created or increased the risk of harm to Kirk. May argues here, as she did before the district court, that two County actions created or increased the risk that Moss would harm Kirk. First, May argues that Franklin County's act of dispatching Franklin Township Officer Ratliff to the scene of the altercation created or increased the risk of harm to Kirk. Second, May claims that the County's subsequent clearing of the police call at the scene without intervening in the dispute heightened the risk of harm to Kirk. Upon review we conclude that the district court properly rejected both of these purported affirmative acts."

Discussion

"The district court found that dispatching the officer did not create the risk of harm to Kirk because the transcript of the 911 call indicates that Kirk and Moss were engaged in a physical confrontation before an officer was dispatched. Plaintiff's expert Dr. John Reid Meloy ('Meloy') agreed that even before the 911 call, Kirk was at a 'high risk of being killed by Mr. Moss, primarily due to the fact that she was attempting to leave the relationship.'... Given this evidence, we agree with the district court's conclusion that the dispatch did not create the risk of harm to Kirk.

"Whether the appellees' actions increased the risk of harm that Kirk faced from Moss requires more extensive analysis. The district court determined that no reasonable jury could find that the act of dispatching Officer Ratliff to the scene increased the risk of danger to Kirk. May argues that the district court erred because she claims that Dr. Meloy's report and deposition provide evidence that the police actions increased the risk of harm to Kirk. Meloy's theory is that the arrival and departure of the police without intervening emboldened Moss, thereby increasing the likelihood that he would kill Kirk."

However, Meloy "admitted during his deposition that, under his emboldenment theory, it was not the arrival of police that communicated permission to Moss, but rather the withdrawal of police that may have emboldened him. ... Thus even when we accept the testimony …