Free Reply Brief - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) Plaintiffs, ) ) v. ) ) THE CITY OF DOVER and [JOHN DOES 1-5] ) PFC ROBERT BARRETT, CPL CARL ) HUMPHREY, PFC JEFFREY GOTT, PFC KEVIN ) ) STREADWICK, PFC BIANCA RANGER, In their Individual and Official capacities, ) ) Defendants. ) SHEILA LAND, Individually and as Guardian of RAZHON ANDRE BANKS, a minor and Charles J. Durante, Esq., Executor of the Estate of Charles Andre Banks,

C.A. No.: 07C-160-UNA JURY TRIAL OF SIX DEMANDED

DEFENDANTS' REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS COUNTS I AND II OF PLAINTIFFS' AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6)

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN /s/ Daniel A. Griffith___________________ DANIEL A. GRIFFITH, ESQ. Delaware Bar I.D. No. 4209 JOHN A. MACCONI, JR., ESQ. Delaware Bar I.D. No. 4430 1220 N. Market Street P.O. Box 8888 Wilmington, DE 19899-8888 (302) 552-4317 Counsel for Defendants Dated: September 20, 2007

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TABLE OF CONTENTS
TABLE OF AUTHORITIES........................................................................ ii ARGUMENT.......................................................................................... 1 I. BECAUSE PLAINTIFFS HAVE SPECIFICALLY RAISED CLAIMS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION, THEIR MORE GENERALIZED "SUBSTANTIVE DUE PROCESS" CLAIMS MUST BE DISMISSED AS A MATTER OF LAW......................................... 1 A. Plaintiffs cannot rely upon substantive due process rights when another Constitutional Amendment is more specifically tailored to their alleged rights violations.................. 1 Smith v. Marasco is distinguishable from the present case........... 4

B.

CONCLUSION........................................................................................ 6

Attached Unreported Decisions

TAB

Ward v. Taylor, 2006 U.S. Dist. LEXIS 14135................................................... 1

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TABLE OF AUTHORITIES
Cases Graham v. Connor, 490 U.S. 386 (1989).......................................................... 1, 2 Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983).............................. 3 Smith v. Marasco, 318 F.3d 497 (3d Cir. 2003)................................................... 4 Ward v. Taylor, 2006 U.S. Dist. LEXIS 14135.................................................... 1

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ARGUMENT
I. BECAUSE PLAINTIFFS HAVE SPECIFICALLY RAISED CLAIMS UNDER THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION, THEIR MORE GENERALIZED "SUBSTANTIVE DUE PROCESS" CLAIMS MUST BE DISMISSED AS A MATTER OF LAW. Because Plaintiffs have specifically raised claims under the Fourth Amendment to the United States Constitution, their more generalized, similar "substantive due process" claims must be dismissed as a matter of law. A. Plaintiffs cannot rely upon substantive due process rights when another Constitutional Amendment is more specifically tailored to their alleged rights violations.

One need look no further than Ward v. Taylor, 2006 U.S. Dist. LEXIS 14135 (attached as Exhibit 1), and Graham v. Connor, 490 U.S. 386 (1989), for the determination of the present issue. In Ward, this Court dismissed the plaintiff's "State Created Danger," substantive due process claim, where he simultaneously alleged an Eighth Amendment violation arising from the same incident, because the "Eighth Amendment is more specifically tailored to the alleged violations of his rights." Ward, 2006 U.S. Dist. LEXIS 14135 at *24. The Court explained: The Supreme Court has held that when there is an "explicit textual source of constitutional protection" against physically intrusive governmental conduct alleged by a plaintiff, "that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims. Because Ward is a convicted inmate, the treatment he alleges must be challenged under the Eighth Amendment, and thus the Defendants' motion to dismiss the substantive due process claim wil[l] be granted. Id. at *24-25 (internal citations omitted).

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Graham involved a claim of excessive force. The United States Supreme Court held that the appropriate analysis was one of reasonableness under the Fourth Amendment, and not one pursuant to substantive due process. In reaching its conclusion, the Court explained: Where, as here, the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable . . . seizures" of the person. This much is clear from our decision in Tennessee v. Garner, [471 U.S. 1 (1985)]. In Garner, we addressed a claim that the use of deadly force to apprehend a fleeing suspect who did not appear to be armed or otherwise dangerous violated the suspect's constitutional rights, notwithstanding the existence of probable cause to arrest. Though the complaint alleged violations of both the Fourth Amendment and the Due Process Clause . . . we analyzed the constitutionality of the challenged application of force solely by reference to the Fourth Amendment's prohibition against unreasonable seizures of the person, holding that the "reasonableness" of a particular seizure depends not only on when it is made, but also on how it is carried out. [] Today we make explicit what was implicit in Garner's analysis, and hold that all force ­ deadly or not ­ in the course of an arrest, investigatory stop, or other "seizure" of a free citizen should be analyzed under the Fourth Amendment and its "reasonableness" standard, rather than under a "substantive due process" approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims. Graham, 490 U.S. at 394-95 (italics denotes emphasis added; bold denotes original emphasis). Under Ward, Plaintiffs cannot bring both Fourth Amendment and State Created Danger claims for the same alleged incident. And, because the Fourth Amendment is designed to

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address the crux of Plaintiffs' argument, that excessive force was used, it guides the analysis, not substantive due process under the Fourteenth Amendment. The conclusion is the same under Graham. Not only did the Supreme Court make it explicitly known that claims of force such as are alleged in the present case are subjected to a Fourth Amendment "reasonableness" analysis, but in so doing it relied upon Garner which, from the relevant perspective, mirrors the present case. Both involve stopped/arrested free citizens' allegations of force brought pursuant to the Fourth and Fourteenth Amendments. Consistent with the implicit determination in that case, and the later, explicit determination in Graham, the Fourth Amendment, and not substantive due process under the Fourteenth Amendment, provides the correct framework for analyzing Plaintiff's claim. Because Plaintiffs have specifically

proffered a Fourth Amendment theory, two in fact, at Counts III and IV of their Amended Complaint, Counts I and II alleging substantive due process violations fail as a matter of law. In their Answering Brief, Plaintiffs seem to take exception to Ward because of the Amendment involved, the Eighth. The actual Amendment, however, is not the proper focus, especially in light of Graham. The proper focus is that a party cannot sustain allegations under the catch-all Fourteenth Amendment when there is an Amendment, any Amendment, more specifically tailored to the claims. Both Ward and Graham, involving the Fourth Amendment, stand for that same proposition. Even if Plaintiffs could successfully draw a distinction between the present case and Ward because of the Amendment involved in that case, which they cannot, they certainly cannot draw the same distinction between their case and Graham. Moreover, Plaintiffs' reliance upon Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983), appears misplaced as, judging by the excerpts cited in Plaintiffs' Answering Brief, it

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actually supports Defendants' position. Specifically, that case allowed a Fourteenth Amendment analysis because the plaintiff was a pretrial detainee against which there had been no formal adjudication of guilt at the time he required medical care. Therefore, the Eighth Amendment was inapplicable. The Court continued and stated that the pretrial detainee plaintiff's rights were equivalent to those under the Eighth Amendment of convicted prisoners. In other words, one, and only one, Amendment fit each situation. That is precisely what Defendant argues. Because Plaintiffs have alleged Fourth Amendment violations, their simultaneous allegations of Fourteenth Amendment violations fail. B. Smith v. Marasco is distinguishable from the present case.

Plaintiffs rely upon Smith v. Marasco, 318 F.3d 497 (3d Cir. 2003), in their Answering Brief as support for their assertion that substantive due process claims, and specifically a claim under the State Created Danger Doctrine, may co-exist with Fourth Amendment claims. Smith, however, is distinguishable from the present case. Smith involved a former police officer and Vietnam veteran decedent plaintiff who suffered from various medical problems including post-traumatic stress disorder. Smith, 318 F.3d at 501-02. Because of ongoing problems with his neighbor, and other reasons giving rise to probable cause, law enforcement officials eventually surrounded the plaintiff's home. Id. at 50203. After failing to apprehend the plaintiff, the officials abandoned their efforts and the

plaintiff's body was eventually found dead days later in woods behind the home, with the cause of death determined to be by heart attack as a result of the incident's stress. Id. at 504-05. The Court allowed both State Created Danger claims and Fourth Amendment, excessive force claims.

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In contrast to the present case, there was an actual show of force by law enforcement officials in Smith, which provided for the allowance of both Fourteenth and Fourth Amendment claims. The Court found that the State Created Danger elements were satisfied: the harm was foreseeable, the activity shocked the conscience, and the governmental officials created a danger. In addition to that, the Court found that the actual amount of force employed could have been determined to be excessive and as such would defeat summary judgment. In the present case, however, there was no actual use of force by Defendants, even according to Plaintiffs. Instead, Plaintiffs' allegations under the Fourth Amendment for

excessive force and unreasonable seizure center upon Mr. Banks being taken into police custody rather than being administered medical attention. Therefore, Plaintiffs are relegated to using a sleight-of-hand to allege both types of claims ­ namely, calling the Defendants' decision "excessive force" while pinpointing the same decision as that which "shocked the conscience" under the State Created Danger Doctrine. Were there actual force employed by Defendants, Plaintiffs may be able to sustain both claims under Smith. Because there was not, however, as argued above, the Fourteenth Amendment claim is essentially a duplication of the Fourth Amendment claim, and because the Fourth Amendment is more specifically tailored to the claim, it governs the analysis. Consequently, Plaintiffs' Counts I and II alleging substantive due process violations fail as a matter of law.

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CONCLUSION
For all of the foregoing reasons, and those in Defendants' Opening Brief In Support of Motion to Dismiss Counts I and II of Plaintiffs' Amended Complaint, it is respectfully requested that this Honorable Court dismiss those counts of Plaintiffs' Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted.

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN /s/ Daniel A. Griffith___________________ DANIEL A. GRIFFITH, ESQ. Delaware Bar I.D. No. 4209 JOHN A. MACCONI, JR., ESQ. Delaware Bar I.D. No. 4430 1220 N. Market Street P.O. Box 8888 Wilmington, DE 19899-8888 (302) 552-4317 Counsel for Defendants Dated: September 20, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) Plaintiffs, ) ) v. ) ) THE CITY OF DOVER and [JOHN DOES 1-5] ) PFC ROBERT BARRETT, CPL CARL ) HUMPHREY, PFC JEFFREY GOTT, PFC KEVIN ) STREADWICK, PFC BIANCA RANGER, ) In their Individual and Official capacities, ) ) Defendants. ) SHEILA LAND, Individually and as Guardian of RAZHON ANDRE BANKS, a minor and Charles J. Durante, Esq., Executor of the Estate of Charles Andre Banks,

C.A. No.: 07C-160-UNA JURY TRIAL OF SIX DEMANDED

CERTIFICATE OF SERVICE I, John A. Macconi, Jr., hereby certify that on September 20, 2007, a true and correct copy of Defendants' Reply Brief in Support of Motion to Dismiss Counts I and II of Plaintiffs' Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6), were forwarded to the below named addressee via electronic filing: Richard R. Wier, Jr., Esquire Two Mill Road Suite 200 Wilmington, DE 19806 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN /s/ John A. Macconi, Jr.________________ JOHN A. MACCONI, JR., ESQ. Delaware Bar I.D. No. 4430 1220 N. Market Street P.O. Box 8888 Wilmington, DE 19899-8888 (302) 552-4317 Counsel for Defendants
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