much like the one in the present case. A peace officer had approached two suspects sitting in a reportedly stolen truck. The officer identified himself and approached the vehicle with his revolver drawn, pointed near one of the suspect's head. As he attempted to reach into the cab and disengage the truck's engine, the truck lurched forward and the gun accidentally fired, hitting the decedent in the head. The court ruled that, as it was undisputed that the shot was fired without volition on the part of the defendant, that no seizure had taken place. Matthews, 699 F. Supp. at 1556-57.
Plaintiff argues that these pre-Graham cases are no longer good law, as Graham dictates that once a seizure has occurred, an official's conduct must be judged under a standard of reasonableness. The court disagrees. The intentional act is a threshold requirement of fourth amendment liability -- it is only the first step. See Fletcher v. Conway, No. 89 C 5183, 1991 U.S. Dist. LEXIS 783, *7-8 (N.D. Ill. Jan. 9, 1991). This was so pre-Graham and after Graham. That an officer's after-seizure conduct is judged by Graham's objective reasonableness requirement or by the old Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), factors does not take away from the current strength of the analysis of Matthews or Dodd as it relates to what constitutes a "seizure."
Plaintiff comes forward with several cases he argues support the proposition that an officer's actions in drawing a weapon post-seizure must be measured under the Graham standard. Only one case is of real relevance here, and it appears to unreconcilable with the cases cited above.
The Sixth Circuit Court of Appeals in Pleasant v. Zamieski, 895 F.2d 272 (6th Cir.), cert. denied, 112 L. Ed. 2d 110, 111 S. Ct. 144 (1990), reviewed a jury verdict absolving a Detroit policeman of fourth amendment liability in the shooting death of a car theft suspect. The suspect had, upon being confronted by the officer, fled. The officer pursued with gun drawn. Plaintiff's decedent began to climb a fence to elude the officer, and, as the officer grabbed him from behind to pull him back to the ground, his gun accidentally fired, slaying the suspect. The Pleasant court saw the jury issues as two-fold: was the officer reasonable in withdrawing the gun and was his conduct reasonable when he failed to re-holster it? The court then upheld the jury's verdict. Pleasant, 895 F.2d at 276-77.
This court declines to follow Pleasant, as its discussion of excessive force requirements is troublingly conclusory. In reviewing plaintiff's post-trial motions, the Sixth Circuit panel essentially assumes that plaintiff's claim presented a jury issue on objective reasonableness, without making any inquiry as to whether fourth amendment rights were implicated at all. Pleasant appears to ignore the strong language found in Brower with regard to the necessity of intentional conduct to state a fourth amendment claim even as it reviewed dicta from that decision cited by the plaintiff.
In addition, the Pleasant court appears to give the short shrift to the heavy load of case decisions holding that accidental shootings in identical circumstances did not constitute seizures. The Pleasant court does not identify or discuss any of these cases. One may infer that this is a result of the procedural status of the case: The plaintiff, as the appellant, framed the issues, and would not, one may assume, have brought up the issue of whether a seizure had occurred at all when the officer's conduct had already been adjudged to be a jury issue.
Here, this court is faced with a situation nearly similar to those presented by the Matthews, Glasco, and Dodd cases. As in those cases, the suspect here had been "seized" in the sense that his freedom of movement was restricted -- Troublefield was in the process of being cuffed; in Matthews and Glasco the suspects were being detained at gunpoint; in Dodd the burglar was being handcuffed and had, like Troublefield, apparently surrendered (the Dodd court noted that the plaintiff had, in effect, been already "seized"). This court is likewise persuaded that the language of Brower v. Inyo County, 489 U.S. 593, 103 L. Ed. 2d 628, 109 S. Ct. 1378 (1989), quoted extensively above, requires that some nature of volitional act on the part of the state actor must cause the harm to plaintiff for a fourth amendment excessive force claim to sound. Negligence in pulling out a firearm or in reholstering it is not sufficient in this court's view.
Here, defendant Salada had effectively taken Troublefield into his control through a means intentionally applied -- ordering him to the ground and then proceeding to handcuff him. If in performing this activity he were to, say, intentionally grind Troublefield's head into a storm drain, a reasonableness inquiry under the fourth amendment may have been appropriate. However, as Troublefield was injured by a bullet fired by accident, no fourth amendment rights have been trampled upon because Salada did not intend the bullet to bring plaintiff within his control or to, perhaps, settle him down were he struggling to break free.
In addition, the court can see no principled reason to depart from the clear holdings of these cases and the language of Brower to decide, as plaintiff urges, that since plaintiff had already been "seized" -- as opposed to Landol-Rivera and Campbell where the suspect was merely being pursued -- all the circumstances of his arrest must be scrutinized under a "reasonableness" standard. In the court's view, such an approach is of no consequence to whether the shooting here constitutes a fourth amendment violation. The court can see no principled reason for applying what is essentially a negligence standard (i.e. "reasonableness") to an officer's conduct in a situation where a suspect is accidentally shot while in the process of being apprehended (only moments after the initial confrontation, one may surmise), but in holding that no fourth amendment "seizure" is present where an officer is chasing a suspect and his gun accidentally discharges. See Dodd v. City of Norwich, 827 F.2d 1, 7-8 (2d Cir. 1987) (discussing place of negligence concepts in fourth amendment jurisprudence). If Salada had intended to shoot, he would have upped the ante and, in effect, brought about a second seizure of Troublefield. This is, as recognized by many of the cases discussed above, a fine distinction.
In so ruling, the court notes that, in circumstances like those in the present, § 1983 jurisprudence at times dictates harsh results. However, it is clear that not every injury born by a citizen at the hands of the government rises to the level of a constitutional violation. Such is the case here. The court will dismiss plaintiff's fourth amendment excessive force claim.
II. Due Process Claim
Graham v. Connor, 490 U.S. 386, 394, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989), made it clear that injuries suffered in the course of an arrest are to be adjudicated under the fourth amendment only. Plaintiff's complaint clearly outlines an injury incurred while he was being arrested. Accordingly, plaintiff has stated no claim under the fourteenth amendment's due process clause. Accord Glasco v. Ballard, 768 F. Supp. 176, 180 (E.D. Va. 1991).
III. Municipal Liability
Plaintiff also asserts municipal liability against the City of Harrisburg, Bureau of Police pursuant to Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Plaintiff summarizes his theories of municipal liability at page 39 of his brief:
Here, Plaintiff has alleged that the Bureau of Police knew, prior to the shooting, that Officer Salada was not qualified to carry a firearm based on at least one prior incident in which his weapon was discharged unexpectedly causing injury. In light of this knowledge, the Bureau of Police further failed to adequately and properly supervise and train him in the safe use of firearms, particularly in the course of making an arrest.
In City of Los Angeles v. Heller, 475 U.S. 796, 89 L. Ed. 2d 806, 106 S. Ct. 1571 (1986) (per curiam), the United States Supreme Court held that a municipal entity cannot be held liable for failing to train or supervise an officer where there is no underlying constitutional violation by the individual officer. As the Court noted, "if a plaintiff has suffered no constitutional injury at the hands of the individual police officer, the fact that departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point." Heller, 475 U.S. at 799. In Williams v. Borough of West Chester, 891 F.2d 458 (3d Cir. 1989), the Third Circuit Court of Appeals noted that where a plaintiff's claims focus on the harm due to the actions of municipal employees, rather than by harm directly traceable to a municipal policy itself, municipal liability claims must be dismissed where the individual officer is exonerated. Williams, 891 F.2d at 467, n.14; see also Simmons v. City of Philadelphia, 947 F.2d 1042, 1063 (3d Cir. 1991); Estate of Dawson v. Williams, No. 90-1482, 1991 U.S. Dist. LEXIS 2925 (E.D. Pa. March 11, 1991); Lach v. Robb, 679 F. Supp. 508, 512 (W.D. Pa.), aff'd, 857 F.2d 1464 (3d Cir. 1988).
Here, the court has held that defendant Salada's conduct as described by the complaint does not state a § 1983 claim for violations of the fourth amendment. All of plaintiff's municipal liability claims are based on the police bureau's inadequate training and supervision of Officer Salada specifically, see Complaint P48,
and do not go to general departmental policies or practices. Therefore, pursuant to Heller, no claim exists against the Bureau of Police under theories of municipal liability. This claim must be dismissed. See Williams; Estate of Dawson; Lach; accord Apodaca v. Rio Arriba County Sheriff's Dep't, 905 F.2d 1445, 1447-48 (10th Cir. 1990); Dodd v. City of Norwich, 827 F.2d 1, 8 (2d Cir. 1987); Swink v. City of Pagedale, 810 F.2d 791, 794-95 (8th Cir. 1987); Palmerin v. City of Riverside, 794 F.2d 1409, 1414-15 (9th Cir. 1986).
IV. Pendent State Law Claims
As the court has dismissed all the federal claims brought by plaintiff, it no longer has jurisdiction over the pendent state law claims. See 28 U.S.C. § 3567(c)(2) (pendent jurisdiction should be exercised unless "the district court has dismissed all claims over which it has original jurisdiction"). This case was removed from the Court of Common Pleas of Dauphin County. The court will accordingly remand the case there for further proceedings on the state law claims.
SYLVIA H. RAMBO
United States District Judge
Dated: April 8, 1992.
ORDER - April 8, 1992, Filed
In accordance with the accompanying memorandum, IT IS HEREBY ORDERED THAT:
1) Defendants' motion to dismiss is GRANTED with regard to Counts I, II, IV and V of plaintiff's complaint;
2) The Clerk of Court is directed to remand this case to the Dauphin County Court of Common Pleas with regard to Count III of the complaint, which concerns state common law negligence claims.
SYLVIA H. RAMBO
United States District Judge
Dated: April 8, 1992.