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Police officers who allegedly ignored, or aided and abetted, the 12-hour drinking binge of a fellow officer who killed four people in a 2001 drunken-driving accident are shielded from a substantive due process claim, a federal appeals court has ruled. Rejecting the right of family members to sue for a violation of their right to be free from a “state created danger,” the 2nd U.S. Circuit Court of Appeals said the law at the time of the accident was not so clearly established that the police officers could be considered aware of their potential liability in Pena v. DePrisco, 03-7876. Thus, the officers were entitled to qualified immunity for their conduct, the court ruled in an opinion by Judge Robert Sack. At about 9 p.m. on Aug. 4, 2001, Joseph Grey drove through several red lights without sounding his horn or braking. He eventually hit and killed Maria Herrera, her son, Andy, and her sister Dicia Pena as they crossed Third Avenue in Brooklyn. The pedestrians had the “walk” signal to cross the street. Herrera was 8-1/2 months pregnant at the time. She gave birth to a son, Ricardo Herrera, at the hospital by cesarean section, but the boy died shortly after. Grey, who had a history of unaddressed drinking problems, had spent that entire day drinking with fellow officers and supervisory sergeants after ending his shift at 8 a.m. The binge began in the parking lot of the 72nd Precinct. Around noon, a sergeant asked Grey to drive him to an “off limits” strip bar. Several hours later, Grey drove the sergeant back to the station house. When a visibly intoxicated Grey went inside to use the bathroom, supervisors and other officers did not reprimand him or prevent him from getting back into his car and returning to the bar. Grey was returning to the precinct for his next shift when he plowed into the Herrera family. Afterward, plaintiffs alleged, several police officers worked to impede or delay the investigation although the post-accident allegations were not at issue in this appeal. Grey was later convicted of one count of driving while intoxicated, one count of driving with a suspended license and four counts of second-degree manslaughter. He was sentenced to serve a term of 5 to 15 years in prison. The lawsuit that family members filed against Grey, the New York Police Department, the strip club and individual police officers made several claims, including the substantive due process claim on the right to be free from state-created danger. ‘FAILURE TO PROTECT’ Eastern District Judge Nina Gershon made several rulings, but the ones that most concerned the 2nd Circuit was her decision denying the motions to dismiss brought by the city, the Patrolmen’s Benevolent Association and the individual officers on the substantive due process claim brought under 42 U.S.C. � 1983 — and the judge’s rejection of the claim of qualified immunity by the officers. A circuit panel of Chief Judge John M. Walker Jr. and Judges Sack and Peter Hall vacated the district court’s denial of the motion to dismiss the state-created danger claims as to the individual defendants and remanded the case to Judge Gershon with instructions to grant the motion. In his opinion, Sack said that, with the plaintiffs conceding that Grey was acting in his personal capacity when the accident occurred, the “plaintiffs must demonstrate that they are not subject to the rule enunciated in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 1899 (1989), that ‘a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.’” Sack noted that the 2nd Circuit recognizes a version of what is called a “state-created” danger as a substantive due process violation. In applying the principle, the court has observed a distinction between the passive “failure to stop private violence” and “its active facilitation.” “It is clear from the cases � that to the extent that the plaintiffs allege merely that the individual defendants failed to intercede on the day of the accident, their complaints do not involve sufficient affirmative acts to violate substantive due process rights,” Sack said. “Similarly, to the extent that the plaintiffs allege that Grey’s supervisors ‘stood by and did nothing’ to punish Grey’s previous misconduct, we think those allegations are also inadequate to state a substantive due process claim.” CONDUCT ‘ENCOURAGED’ More difficult, Sack said, were the allegations that the officers and supervisors “encouraged” Grey to get drunk both while on duty and off. It made a real difference to the court the extent to which those officers and supervisors “participated in or condoned Grey’s behavior,” and communicated that he would not be disciplined for his acts. “We conclude that when, as the plaintiffs allege, state officials communicate to a private person that he or she will not be arrested, punished or otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty or property of others, those officials can be held liable under section 1983 for injury caused by the misconduct,” under the case law, specifically Dwares v. City of New York, 985 F.2d 94 (2d. Cir. 1993). Establishing a violation of right to substantive due process requires, in the words of the U.S. Supreme Court, that the government action was “so egregious, so outrageous, that it may be fairly said to shock the contemporary conscience,” Sack said. “We conclude that the alleged behavior of the pre-accident individual defendants here, over an extended period of time and in the face of action that presented obvious risk of severe consequences and extreme danger, falls within the realm of behavior that,” he said, in the words of the U.S. Supreme Court “‘can properly be characterized as � conscience shocking, in a constitutional sense.’” Nonetheless, the panel held, “Although it is a close question, we think that the substantive due process violation that the plaintiffs allege here was not clearly established for purposes of qualified immunity.” The Dwares case, “did not address, let alone decide,” Sack concluded, “whether repeated inaction on the part of government officials over a long period of time without an explicit statement of approval, might effectively constitute such an implicit ‘prior assurance’ that it rises to the level of an affirmative act.” He also said that Dwares did not indicate whether “government officials may implicitly send a message of official sanction by engaging in or tolerating such a practice.” Thus, the court determined that the rule of law it drew from Dwares was not clearly established at the time of the conduct in question and the pre-accident individual defendants were entitled to qualified immunity as to the substantive due process claims. Eugene B. Nathanson represented the plaintiffs. Assistant Corporation Counsels Alan Beckoff, Stephen J. McGrath, Alan H. Scheiner and Zachary A. Cunha represented the city and municipal defendants. Gregory M. Longworth and John W. Burns of Worth, Longworth & London represented some of the police defendants. Andrew C. Quinn, Bruno V. Gioffre Jr. and Rosa Luna-Mole of Quinn, Ferrante & Mellea represented some of the police officers. Mark P. Goodman, Mary Jo White, Howard S. Hogan and Laura E. Neish of Debevoise & Plimpton filed as amicus curiae for the Patrolmen’s Benevolent Association of the City of New York.

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