Appeal from the United States District court for the Eastern District of Wisconsin, No. 84-C-926--Terence T. Evans, Judge.
Bauer, Chief Judge, and Cummings, Wood Jr., Cudahy, Posner, Coffey, Flaum, Easterbrook, Ripple, Manion, and Kanne, Circuit Judges.
EASTERBROOK, Circuit Judge.
The Bill of Rights limits the power of government. It insists that the government refrain from acting in certain spheres. Yet it is possible to restate most actions as corresponding inactions with the same effect, and to show that inaction may have the same effects as a forbidden action. So, for example, the Supreme Court has implied from the First Amendment "rights of access" to some information held by the government, reasoning that the right to speak implies a right to know, and that the government would be forbidden to suppress publication of the information if it were in private hands. E.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814 (1980); cf. Houchins v. KQED, Inc., 438 U.S. 1, 57 L. Ed. 2d 553, 98 S. Ct. 2588 (1978).
Implication of a "positive" right (to have the government do something) out of the constitutional "negative" right (to be let alone) often depends on arguments about policy rather than on the text, structure, or history of the document; it may depend on seeing things from the perspective of collective benefits rather than the autonomy of the individual, a perspective that potentially increases the role of government in society, contrary to the plan of the Bill of Rights. Such a step therefore must be unusual and exceptionally well-justified.
Today's case presents a claim for the "positive" right of effective rescue services. It is the public version of the doctrine in tort law that no one is required to rescue another in distress, but that if he begins a rescue he had better not be negligent. Restatement (2d) of Torts §§ 314, 323 (1965); Prosser & Keeton, The Law of Toe 378-82 (5th ed. 1984). The rule that no one need volunteer respects the autonomy of bystanders (and reduces the risk that one will be conscripted into a hazardous rescue); the rule that a volunteer must act competently reflects the belief that a rescue in process may lead superior rescuers to pass by, making the victim worse off than he would have been had the first rescuer not chanced on the scene. A simple application of this rule to governmental rescue services--the police, fire departments, child welfare agencies, "hot line" phone numbers, etc.--would mean that the government need not offer such services but must provide them competently if it does. Yet the Constitution does not incorporate all tort law. Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979); Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976); Perry v. FBI, 781 F.2d 1294 (7th Cir. 1986) (en banc). We must decide today how far the constitutional rule departs from the common law rule and, if they differ, whether there is an independent constitutional obligation to provide efficacious rescue services.
At 7:19 a.m. on May 27, 1984, Les Hiles called the fire department of Racine, Wisconsin, to request a rescue squad for his friend Rena DeLacy. Hiles told George Giese, the dispatcher, that DeLacy was "hyperventilating" and could "hardly breathe". 627 F. Supp. 766, 767 (E.D. Wis. 1986) (the district court's opinion contains a transcript of the dialogue). Hiles said that DeLacy needed medical care but could not walk to the hospital five blocks away. Giese inquired about DeLacy's age (43) and called her to the phone. She was breathing heavily. After DeLacy said that she had had a breathing problem "once" before, Giese told her to breathe into a paper bag until she calmed down. A first aid book recommends this for hyperventilation.*fn1
The advice did not work. At 3:03 p.m. Hiles called again, and Giese said: "Well, if she's hyperventilating, just, just have her do what I told you to do. She's going to have to breathe into that bag." 627 F. Supp. at 768. Hiles worried that DeLacy's heavy breathing would "wear her heart out"; Giese assured him that it would not. Hiles thanked Giese and hung up. Giese was right about the heart, but this was not DeLacy's problem. She died at home late that evening from respiratory failure, brought on by emphysema and pneumonia. A physician testified that emergency administration of oxygen, followed by other appropriate care, could have saved DeLacy's life.
The administrator of DeLacy's estate and her five living children sued Giese, the City, and its fire chief under 42 U.S.C. § 1983, contending that Giese's failure to send an emergency squad violated the Equal Protection and Due Process Clauses of the fourteenth amendment. The plaintiffs' principal argument at the bench trial was that DeLacy's race (black) accounted for Giese's neglect. The district court found that Giese regularly sent rescue squads to help black persons, 627 F. Supp. at 770, and that DeLacy's race did not play a role in Giese's decision. This finding is not clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273, 287-88, 72 L. Ed. 2d 66, 102 S. Ct. 1781 (1982).
The elimination of racial explanations left as a puzzle Giese's unwillingness to dispatch a rescue team--the only time he had declined to send help in his four years as a dispatcher. Giese testified that he did not think that DeLacy needed help urgently (perhaps because she denied having chronic breathing problems, though Giese did not spell this out) and also took into account Hiles's reputation, calling him a "jerk". The district court accepted Giese's description of his reasons but did not think much of them:
I find absurd Giese's apparent belief that his refusal to send the rescue squad can somehow be justified because Hiles was the one who asked for it. It is undisputed that Hiles has a reputation in Racine: he was in the County Jail at the time of the trial; he drinks; he is described as an iconoclast, a character; . . . Nevertheless, on the tapes he is lucid; it is clear what he wants; his voice reflects the urgency of the situation. At trial he was articulate and perfectly capable, in my view, of judging when an emergency would exist, and also perfectly capable of describing it.
627 F. Supp. at 770-71. Moreover, the district court observed, the City's policy is to send a rescue squad to every emergency, and Fire Chief Chiapete had issued a press release stating that Giese exercised poor judgment. Id. at 769. Chiapete and one of his subordinates repeated that view in testimony at trial. The district court therefore characterized Giese's "conduct [as] stupid, or more charitably just poor judgment". Id. at 771.
That finding led the district court to enter judgment for the defendants. The court first concluded that Chiapete was not responsible for Giese's errors, so he had to be dismissed. 627 F. Supp. at 771. The City, which is not vicariously responsible for the acts of its employees and could be responsible only for its policies and the decisions of its policy makers, also received judgment.*fn2
Only Giese remained as a defendant. Relying on a series of cases in this circuit--Ellsworth v. City of Racine, 774 F.2d 182, 185 (7th Cir. 1985); Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir. 1984); Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir. 1983)--the district court concluded that failure to rescue a person in distress does not violate the Due Process Clause. 627 F. Supp. at 771-73. See also, e.g., Donald v. Polk County, 836 F.2d 376, 383-84 (7th Cir. 1988); DeShaney v. Winnebago County Dep't of Social Services, 812 F.2d 298, 301-04 (7th Cir. 1987), cert. granted, 485 U.S. 958, 108 S. Ct. 1218, 99 L. Ed. 2d 419 (1988); Walker v. Rowe, 791 F.2d 507, 509-12 (7th Cir. 1986); Hinman v. Lincoln Towing Service, Inc., 771 F.2d 189, 194 (7th Cir. 1985); Beard v. O'Neal, 728 F.2d 894, 898-900 (7th Cir. 1984); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). The government need not provide services, and these cases hold that if it does provide services it need not provide them competently. The district court allowed that the government must assist prisoners and others with whom it has some "special relationship" but concluded that "Rena DeLacy, personally, has no greater claim to a special relationship with Racine than do all other citizens of the city." 627 F. Supp. at 772.
A panel of this court reinstated the claim against Giese, 826 F.2d 480. We vacated that decision and set the case for rehearing en banc to consider the extent of a government's obligation to provide rescue services. We address three possibilities: that a violation of state law amounts to an unconstitutional "abuse of power"; that grossly negligent rescue operations violate the Constitution; and that the Constitution of its own force requires a state to supply effective rescue services.
The Due Process Clause provides: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law". Giese did not deprive DeLacy of her life. Emphysema and pneumonia did that. The government was not responsible for DeLacy's bronchial problems. It did not interfere with DeLacy's ability to seek medical help from private sources. It did not even promise to send help but fail to do so. Giese, and thus the state, underestimated the seriousness of DeLacy's problem, rendered inept medical advice, and declined to offer transportation to a hospital. The plaintiffs contend that this adds up to an unconstitutional "abuse of power".
Since Giese had no "power" over DeLacy and did not injure her, cases such as Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985), holding that excessive force in making an arrest violates the fourth amendment, do not assist the plaintiffs. The "shocks-the-conscience" approach of Rochin v. California, 342 U.S. 165, 96 L. Ed. 183, 72 S. Ct. 205 (1952), is not an ambulatory source of authority to impose damages on public officials for sins of omission or everyday torts. See Lester v. City of Chicago, 830 F.2d 706, 710 (7th Cir. 1987) (the reasonableness" requirement of the fourth amendment, and not principles of substantive due process, will be used to assess injuries during an arrest); Williams v. Boles, 841 F.2d 181 (7th Cir. 1988) (the eighth amendment, not substantive due process, provides the standards to assess injuries inflicted on prisoners). It is too indeterminate to offer notice to officials of the rules they must follow; it invites retrospective analysis instead of inquiring into the circumstances known at the time of the action; it dwells on imputed intent rather than on the objective circumstances. See Coniston Corp. v. Village of Hoffman Estates, 844 F.2d 461 (7th Cir. 1988), slip op. 7-9. Cf. Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987) (damages are available for constitutional torts only if reasonable officials would have known at the time of their conduct that the behavior was unconstitutional). That judges or jurors may believe that Giese acted foolishly or even heartlessly toward DeLacy is of no moment unless he violated a duty imposed by law.
State law is one potential source of such a duty. Section 5.11.020 of Racine's municipal code requires the fire department to answer calls. Fire Chief Chiapete ordered the City's dispatchers to send medical help for every emergency (though he did not define "emergency"). The law of torts requires volunteer rescuers to be competent. So Giese may have violated a duty of care imposed by the combination of the municipal code and tort law. "May have" because § 323 of the Restatement (2d) of Toe provides that a rescuer is liable only to the extent the lack of reasonable care "increases the risk of . . . harm" or the "harm is suffered because of the other's reliance upon the undertaking." Giese's conduct did not increase the risk of DeLacy's death (the paper bag did not asphyxiate her), and the record does not establish that she relied on his advice in deciding not to seek aid from other sources.*fn3 We shall assume nonetheless that Giese could have been held liable to the plaintiffs under Wisconsin law. See Sanem v. Home Insurance Co., 119 Wis. 2d 530, 350 N.W. 2d 89 (1984) (adopting § 323 of the Restatement as a theory of liability in Wisconsin).*fn4 See also O'Neill v. Montefiore Hospital, 11 A.D.2d 132, 202 N.Y.S.2d 436 (App. Div. 1960) (liability for giving free, though careless, advice by telephone to a stranger). Cf. Kirk v. Michael Reese Hospital, 117 Ill. 2d 507, 525-33, 513 N.E.2d 387, 396-99, 111 Ill. Dec. 944 (1987). But this is a suit under § 1983, and the Constitution does not duplicate state law. It constrains the state from "abusing governmental power, or employing it as an instrument of oppression", Davidson v. Cannon, 474 U.S. 344, 348, 88 L. Ed. 2d 677, 106 S. Ct. 668 (1986). Thus plaintiffs' syllogism in an effort to transmute a common law tort into a constitutional tort: state law required Giese to render competent rescue services; this was a duty; officials of the government must do their duty; failure to do one's duty is an abuse of one's office; abuse of office is abuse of governmental power; abuse of governmental power violates the Constitution.
The difficulty with this approach is that all the intermediate steps are window dressing. Because there is no tort without a duty of care, the argument as a whole adds up to the claim that torts by governmental officials violate the Constitution. It is another form of the contention that the Constitution requires a state to obey its own law. A reader could see in the phrase "due process of law" a requirement of "obedience to law", and there is some historical support for such a view, see Murray's Lessee v. Hoboken La nd & Improvement Co., 59 U.S. (18 How.) 272, 15 L. Ed. 372 (1856), at least to the extent "law" meant procedures established by law. The phrase does not have such a meaning for the contemporary Court, however, for that body has rejected the equivalence repeatedly, e.g., Barney v. City of New York, 193 U.S. 430, 48 L. Ed. 737, 24 S. Ct. 502 (1904); Hebert v. Louisiana, 272 U.S. 312, 316, 71 L. Ed. 270, 47 S. Ct. 103 (1926); Snowden v. Hughes, 321 U.S. 1, 11, 88 L. Ed. 497, 64 S. Ct. 397 (1944); Davis v. Scherer, 468 U.S. 183, 193-96, 82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984).*fn5 As the Court put it in Snowden:
If the action of the Board is official action it is subject to constitutional infirmity to the same but no greater extent than if the action were taken by the state legislature. Its illegality under the state statute can neither add to nor subtract from its constitutional validity. Mere violation of a state statute does not infringe the federal Constitution. And state action, even though illegal under state law, can be no more or less constitutional under the Fourteenth Amendment than if it were sanctioned by the state legislature.
321 U.S. at 11, citations omitted.*fn6 A state ought to follow its law, but to treat a violation of state law as a violation of the Constitution is to make the federal government the enforcer of state law. State rather than federal courts are the appropriate institutions to enforce state rules. Indeed, "it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). Pennhurst held that federal courts lack the authority to direct state officials to comply with state law. If the alchemist's wand can transmute a violation of state law into a violation of the Constitution, Pennhurst will be for naught, federal enforcement of state law the order of the day.
In one respect, and in one only, state law provides the basis for a claim under the Due Process Clause. Because "property" is defined by law, showing that one has "property" often depends on showing a legitimate claim of entitlement under state law. See Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972), and, e.g., Upadhya v. Langenberg, 834 F.2d 661 (7th Cir. 1987). Once state law defines the substance, constitutional law establishes the minimum procedures. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 539-41, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). This reference to state law as the basis of a constitutional claim does not assist plaintiffs, however, for the violation of state law is not itself the violation of the Constitution. Bishop v. Wood, 426 U.S. 341, 349-50, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976). The procedural guarantees of the Due Process Clause exist apart from state law, even though they depend on it. So, for example, if state law establishes procedural entitlements, these are not themselves property and will not be enforced in the name of the Constitution. Olim v. Wakinekona, 461 U.S. 238 248-51, 75 L. Ed. 2d 813, 103 S. Ct. 1741 (1983); Hewitt v. Helms, 459 U.S. 460, 471, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983); Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1081 (7th Cir. 1987); Shango v. Jurich, 681 F.2d 1091, 1100-01 (7th Cir. 1982). Even the constitutional minima often will not be enforced in practice. If a state erratically deprives a person of property, the remedy is not a subsequent hearing but a suit to recover damage--in other words, the opportunity to obtain redress in state court is due process when a prior hearing is either infeasible or negligently withheld. See Hudson v. Palmer, 468 U.S. 517, 530-36, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984); Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981); Ingraham v. Wright, 430 U.S. 651, 674-82, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). So it is here. It is hardly possible to hold hearings in advance to decide whether fire dispatchers will turn deaf ears to cries of distress. If, as the plaintiffs believe, Giese violated his duties under state law, the opportunity to press that claim in state court is due process of law.
Plaintiffs treat the rule of Snowden as an unfortunate one that we should struggle to get 'round. It is not part of this court's task to undermine decisions of the Supreme Court. For whatever it is worth, however, we do not think the rule regrettable. It implements distinctions at the core of our governmental structure--the distinction between the Constitution and law within the control of the political departments, and the distinction between state and federal rules. The basis of judicial review under Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803), is the hierarchy of rules. The Constitution, adopted by the People, is beyond the control of their agents in the legislature; in the event of a conflict the Constitution must control; the hierarchy of rules, together with the nature of the Constitution as a law, supplies the authority for judges to follow the Constitution in the event of conflict, and to insist that others do the same. When the source of the rule or duty in question (here Racine's duty to respond to emergency calls) is not the Constitution but is within the control of political actors, federal courts have no rule external to the state's choices to enforce. We have only state law, which states may enforce, alter, or disregard so far as the Due Process Clause is concerned.*fn7 So Martinez v. California, 444 U.S. 277, 280-83, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980), found no constitutional difficulty in California's grant to parole officials of immunity in damages for violating state law. The state, as the source of the law, could withdraw the remedy for reasons it thought sufficient (in Martinez, promoting fearless decision making, even though the result could be, and was, to make officials more willing to release prisoners who might commit mayhem). So, too, there could be no substantial ...