First Amendment claims are not recognized by the Courts."
Plaintiffs state at the outset of the second amended complaint that their action is brought under various civil rights laws "and the First, Fourth and Fourteenth Amendments to the United State Constitution." Subsequently, in the Fifth and Sixth Claims for Relief, plaintiffs make more general mention of rights secured by the Constitution, including the First Amendment. Defendants allege that plaintiffs rely on the First Amendment to the exclusion of the Fourteenth Amendment in these claims for relief, and that this is "a fatal defect" in the second amended complaint.
The Third Circuit has upheld the right of a parent whose child died as a result of unlawful state action to maintain a suit under section 1983 for deprivation of liberty. See Estate of Bailey by Oare v. County of York, 768 F.2d 503, 509 (3d Cir. 1985). However, there is disagreement among courts recognizing the right over its constitutional underpinnings. "Most courts hold that a parent's right to association and companionship with a child is a substantive due process right, however, the Tenth Circuit has concluded that this right arises from the first amendment right to freedom of intimate association." Agresta v. Sambor, 687 F. Supp. 162, 163 (E.D. Pa. 1988) (citations omitted).
Given this background, we do not consider "fatal" plaintiffs' good faith assertion of a First Amendment basis to their claim for relief. A motion to dismiss is not the proper forum for resolving the debate about the constitutional underpinnings of surviving family members' claims in a civil rights action. The specificity rule in civil rights cases is meant to balance the rights of local government officials not to be subjected to the burden of trial on claims that are legally insufficient, and the rights of plaintiffs who have been injured as a result of actions or practices which the civil rights laws are designed to redress. See Freedman v. City of Allentown, 853 F.2d 1111, 1114 (3d Cir. 1988). The legal sufficiency of plaintiffs' claim, when the allegations are construed in a light most favorable to them, is apparent.
In assessing a motion to dismiss a civil rights claim, the crucial questions are whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide defendants with adequate notice to frame an answer. See Colburn v. Upper Darby Twp., 838 F.2d 663, 666 (3d Cir. 1988), cert. denied, 489 U.S. 1065, 103 L. Ed. 2d 808, 109 S. Ct. 1338 (1989), quoting Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 68 (3d Cir. 1986). "We have routinely held that complaints comply with this standard if they allege the specific conduct violating the plaintiff's rights, the time and the place of that conduct, and the identity of the responsible officers." Id. We find that plaintiffs' second amended complaint complies with this standard regarding the claims asserted by the decedent's parents and children.
4. Standard for Liability Under Section 1983 and the Due Process Clause
Defendants aver that plaintiffs' second amended complaint must be dismissed to the extent that it alleges negligence against the police officers. Defendants call the court's attention to five paragraphs in the complaint that contain express allegations as to the negligence of one or more of the police officer defendants. It is well established that ordinary negligence is not actionable under section 1983 and the Due Process Clause. See Daniels v. Williams, 474 U.S. 327, 328, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986).
In their brief opposing the instant motion, plaintiffs fail to explain the focus on negligence in the complaint, instead asserting that the conduct of the police was not "objectively reasonable" in light of the facts and circumstances. Plaintiffs state that their claims are based "on recklessness, and excessive force used by Officer Bowers by applying blunt force trauma to the throat of Mr. Johnson, which caused his death."
Currently in this Circuit, there is some question regarding the standard for liability under section 1983 in cases alleging police misconduct. In Fagan v. City of Vineland, involving death during a police pursuit, the Third Circuit held that the standard for liability under section 1983 and the Due Process Clause is whether the defendant police officers acted with a reckless indifference to public safety. See Fagan v. City of Vineland, 1993 WL 290386, *8 (3d Cir. 1993), vacated & reh'g granted, 1993 WL 335370 (3d Cir. Sept. 2, 1993). The Fagan court rejected the more stringent standard that the defendant police officer's conduct must "shock the conscience" for such liability to attach, id. at *8, however the opinion was vacated and the case will be heard in banc.
Pending further guidance from the Circuit on the standard of liability under section 1983, we decline to dismiss the claims against the police officer defendants to the extent that they allege conduct that was at least reckless on the part of the officers. In addition, we take note of the court's observation in Fagan that the state of mind of a police officer is not dispositive of a municipality's liability under section 1983:
A jury might conclude that [a police officer] was not reckless because he acted in good faith according to his training and was unaware of the risks to the public. His lack of the required mental state, however, does not necessarily negate the underlying constitutional injury. The plaintiff has still suffered the kind of harm -- deprivation of life or liberty -- which the Constitution protects against. If the officer, negligently or otherwise, inflicted that harm because he was following a city policy reflecting the city policymakers' deliberate indifference to constitutional rights, then the City is directly liable under section 1983 for causing a violation of the plaintiff's Fourteenth Amendment rights.
Fagan v. City of Vineland, 1993 WL 290386, *8 (3d Cir. 1993), vacated & reh'g granted, 1993 WL 335370 (3d Cir. Sept. 2, 1993).
In the instant case, it is alleged that City of Erie authorities failed to correct known problems involving race relations, including certain officers' alleged mistreatment of African Americans. Plaintiffs allege that the choking of Mr. Johnson by Officer Bowers, and the failure of the defendants to provide resuscitation or to take him to a hospital, "was a deliberate indifference and a malicious intentional deprivation of Mr. Johnson's civil rights." Despite plaintiffs' occasional use of negligence terms, overall the complaint alleges a level of culpability sufficient to withstand the motion to dismiss.
5. Political Subdivision Tort Claims Act
Plaintiffs' Fourth Claim for Relief addresses indemnification of the individual defendants by the defendant municipality. Defendants move for the dismissal of this Claim for Relief on the grounds that, first, it seeks to enforce a right which runs to the local government, and, second, the claim is premature.
Plaintiffs' Fourth Claim for Relief states in its entirety:
42 U.S.C. Section 1988. To the extent of personal resources of the individual defendants herein are deficient in the amounts necessary to furnish a suitable remedy to plaintiffs, defendant, City of Erie, is liable for such deficiencies pursuant to the Political Subdivision Tort Claims Act. Further, allow reasonable attorney's fees as part of the cost.