N.D.Ill.: Police shooting of bystander not a Fourth or due process claim, except for the “shocks the conscience” test

Plaintiff’s claim of being an accidentally shot bystander did not state a Fourth Amendment claim because he was not the person to whom the officers were attempting to apply force. Instead, the “shocks the conscience” standard (Rochin) applies, and plaintiff cannot meet it. Warfield v. City of Chicago, 565 F. Supp. 2d 948 (N.D. Ill. 2008):

A Fourth Amendment seizure occurs only when there is a “governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (emphasis in original). The means of detention must be intentionally applied “to the object of the detention.” Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000). “[A] Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is governmental termination of freedom of movement through means intentionally applied.” County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998). Therefore, where a police officer fires his gun at a fleeing suspect and the bullet inadvertently strikes an innocent bystander, there has been no Fourth Amendment seizure. Berg, 219 F.3d at 269; see also Medeiros v. O’Connell, 150 F.3d 164, 169 (2d Cir. 1998) (“Where the hostage is hit by a bullet intended for the hostage-taker, the mishap is the unintended consequence of government action, and the governing principle is that such consequences cannot form the basis for a Fourth Amendment violation); Brandon v. Village of Maywood, 157 F. Supp. 2d 917, 924-25 (N.D. Ill. 2001) (no Fourth Amendment cause of action for accidental shooting of innocent bystander).

Plaintiffs here are like the innocent bystander or passerby described in the cases above. Whether or not the officers knew Plaintiffs were in the vestibule when they fired at Smith, there is no dispute that Plaintiffs were not the intended targets of the officers’ bullets. In Bublitz v. Cottey, for example, a family was killed after their vehicle collided with the car of a fleeing felon when police officers used a tire-deflation device to stop the felon’s car. 327 F.3d 485, 489 (7th Cir. 2003). In that case, the Seventh Circuit reasoned that just because the officer intended to stop the felon’s car, it does not follow that he therefore intended to stop any other car that could potentially become involved in a subsequent collision. Id. The Court held that the family’s suffering was an “accidental and wholly unintended consequence;” because the family “was simply not the intended object” of the defendant officers’ attempts to seize the fleeing criminal. Id. Therefore, the Fourth Amendment was not implicated and could not provide the basis for a Section 1983 claim. Id. Similarly, in the instant case, Plaintiffs were not the intended object of the officers’ attempts to seize Smith, and so the Fourth Amendment is not implicated here.

Nor does the Fourteenth Amendment substantive due process guarantee provide recourse for Plaintiffs here. “The guarantee of due process serves to protect the individual against arbitrary action of government.” Schaefer v. Goch, 153 F.3d 793, 797 (7th Cir. 1998). “[O]nly the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense….” Bublitz, 327 F.3d at 490. When officers are faced with a “dangerous, fluid situation, in which they were forced to make decisions in haste, under pressure,” their conduct does not violate the Fourteenth Amendment unless it “shocks the conscience.” Schaefer, 153 F.3d at 797-98 (citing Lewis, 523 U.S. at 846-47). In these cases, “even precipitate recklessness fails to inch close enough to harmful purpose to spark the shock that implicates the concerns of substantive due process.” Id. “The sine qua non of liability” in these cases is “a purpose to cause harm.” Id. In Schaefer, the defendant officers fired their weapons at a husband who was holding his wife hostage, and accidentally fatally shot the wife. Id. at 798-99. The Seventh Circuit held that the officers’ conduct did not “shock the conscience” because the officers did not intend to shoot the wife. Id.