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Stevens v. City of Green Bay

January 29, 1997






Appeal from the United States District Court for the Eastern District of Wisconsin.

No. 94 C 1277 Myron L. Gordon, Judge.

Before BAUER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge.



Scott Stevens, a resident of the Oneida Indian Reservation near Green Bay, Wisconsin, was involved in a fight in a Green Bay night club which the police quelled. The police took Stevens to a public telephone to call a cab. Ninety minutes later, in the early morning of October 28, 1993, a car struck and killed Stevens while he walked in the middle of a street in Green Bay. His blood alcohol level at the time of his death was .237 grams of alcohol for every 100 milliliters of blood.

While the Due Process Clause of the Fourteenth Amendment imposes no duty upon a state to provide the general public with protective services, the Supreme Court has stated that such a duty may arise out of a "special relationship" created or assumed by the state with respect to certain individuals. Stevens' estate sued the city and its police claiming that the police officers who quieted the disturbance at the bar created such a "special relationship" by taking Stevens into custody and by abandoning him under circumstances which rendered him vulnerable to dangers created by the officers' actions. The magistrate judge disagreed, and under the doctrine of qualified immunity recommended granting the defendants summary judgment. The district court followed the magistrate judge's recommendation. Stevens' estate appeals the grant of summary judgment on the substantive due process claim. We affirm.


We examine this case's facts in some detail and from the perspective of Stevens' estate, which we take on this appeal from an adverse grant of summary judgment.

On October 27, 1993, Scott Stevens, Jason King, and Jeremy King drank several beers at Jason King's home before eventually meeting a group of their friends at Julie King's home around 10:30 p.m. When Stevens arrived at Julie King's home, she judged him to be "pretty well drunk." She stated that Stevens was not allowed to drink at her house because "he was already too drunk." The group left at approximately 11:00 p.m. and moved the party to the "Colors" nightclub in Green Bay. (Stevens did not drive; he rode in someone else's car.)

While at Colors, Stevens argued with his former girlfriend, Michelle Powless, notwithstanding a restraining order Powless had against Stevens outlawing any contact between them. Also at Colors that night were several Green Bay Packer football players. Shawn Collins was standing at the bar in a discussion with a number of teammates, including James Willis, Wayne Simmons, and Robert Brooks. Willis may have been speaking with Powless. Stevens allegedly tried to push himself into the middle of the players' conversation, mumbled what may have been curses, and then took a swing at Collins, punching him in the jaw. (Later Collins said that Stevens may have mistaken him for Willis.) Collins had a half-empty beer bottle in his hand and struck back, cutting Stevens on the left ear. The cut began to bleed. Bouncers immediately intervened and took the combatants outside into the parking lot.

Outside, the club's assistant manager flagged down a Green Bay police car driven by Officer John Laux. Officer Patrick Buckley also was dispatched to the disturbance. A bouncer told Officer Laux that Stevens was shouting racial slurs against several black patrons and had punched one of them while in the bar. Officer Laux then spoke with Stevens who, according to Officer Laux, "indicated to me that he didn't start anything and that the niggers have no business hanging around the bar." Officer Laux asked Stevens and Collins if they wished to press charges against each other. They declined. According to Officer Laux, Stevens appeared to have been drinking, but did not appear incapacitated. Stevens spoke rationally, seemed to comprehend his surroundings, was alert and conscious, and did not stagger when he walked. Officer Buckley observed that Stevens was bleeding from his left ear, and gave him a gauze pad which Stevens placed on the cut. Twice Stevens declined further medical attention, including an offer to call a rescue squad. Stevens asked a couple of times whether he could leave. According to Officer Buckley, after Stevens' index *fn1 came back he was told he could go. Because nightclub employees told Officer Laux that Stevens was no longer welcome in the bar, Laux told Stevens not to return.

When Officers Laux and Buckley spoke with Stevens in the parking lot, Powless stood by. She expressed concern to one of the officers about Stevens' cut. Later she remembered the officer commenting that Stevens "would be alright," and she thought the officer told her that Stevens would not be arrested and that he would make sure Stevens "gets to the hospital or gets home."

During their conversation Stevens asked Officer Laux for a ride home. When Stevens said he lived on the Oneida Indian Reservation outside Green Bay, Officer Laux told him that he could not drive him outside the city limits. Instead, Officer Laux offered to call Stevens a taxi cab. But Stevens did not want to pay for a cab to take ...

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