Appeal from the United States District Court for the Central District of Illinois. No. 98 C 3182--Jeanne E. Scott, Judge.
Before Flaum, Chief Judge, and Posner and Ripple, Circuit Judges.
The opinion of the court was delivered by: Posner, Circuit Judge
As amended February 1, 2002.
This suit under 42 U.S.C. sec. 1983 charges excessive force, resulting in death, in the efforts by defendant Ridgway, a police officer in the City of Pana, Illinois, and defendant Lykins, a private citizen who assisted the officer, to subdue Woodall, the plaintiff's decedent. The suit also charges deliberate indifference by Ridgway to Woodall's safety in failing to confine him securely to prevent the eruption that resulted in the struggle and his death, and finally charges the City of Pana with having failed to train Ridgway adequately. All these are charges of deprivation of life without due process of law, in violation of the Fourteenth Amendment; such charges are of course actionable under section 1983. The district court granted summary judgment for the defendants.
The facts are not seriously disputed. Woodall was arrested after hitting his wife, was observed to be very drunk, and when told he was being taken to jail said that he wasn't going to jail--either he or the officer taking him would be dead first. The officer was Ridgway, who handcuffed Woodall's hands behind his back and placed him in the back seat of the police car. But despite Woodall's threat he neglected to shackle Woodall's legs, fasten Woodall's seatbelt, or close the plexiglas partition between the driver's seat and the back seat. During the drive to the jail, Woodall managed to bring his cuffed hands to the front of his body by putting his feet through his arms, and having done so he grabbed the steering wheel and veered the car into a ditch. Just then, Lykins chanced on the scene. While Ridgway was struggling out of the car, Lykins asked him whether he needed help. Ridgway replied that he did. Woodall then forced open the car door and tumbled out and Ridgway tried to spray him with pepper spray but accidentally sprayed himself instead, temporarily blinding himself. He told Lykins, "Let's take him to the ground," and the two men eventually were able to wrestle Woodall to the ground, though not before Woodall pulled Lykins's shirt over his head and attacked him with a tree branch. A much lighter man than Woodall (about 155 versus 200 pounds), Lykins began to tire and asked Ridgway whether Woodall could be knocked out and said he'd have to "choke out" Woodall. While Ridgway was busy trying to hold down the lower part of Woodall's body (Woodall was kicking furiously), Lykins pushed his forearm against the side of Woodall's neck. Ridgway heard a gurgling sound and told Lykins to loosen his hold. The sequence was repeated several times. Then other policemen arrived, and observed Woodall still kicking violently. But within a few minutes Woodall was dead from the effect of Lykins's pressure on his neck, possibly combined with fatigue and inebriation, but that is unclear.
We may assume without having to decide that Ridgway was negligent in failing to confine Woodall more securely to the back seat of the police car. Ridgway testified that he left the plexiglas partition open because it would make it easier for him to talk to Woodall, and he thought that talk would have a calming effect. Moreover, it's quite a trick to get your hands, when they are handcuffed behind you, in front of you where they can do harm. But assuming despite these points that Ridgway was negligent--that in other words a reasonable person in his position would have thought additional precautions against Woodall's breaking out cost-justified--Ridgway was not deliberately indifferent to Woodall's safety. And that is the applicable standard in a section 1983 suit charging excessive force against a pretrial detainee, as against other prisoners. Mayoral v. Sheahan, 245 F.3d 934, 938 (7th Cir. 2001); Gibbs v. Grimmette, 254 F.3d 545, 547, 548-49 (5th Cir. 2001).
Deliberate indifference implies that the defendant knew there was a substantial risk of serious harm to the plaintiff, Farmer v. Brennan, 511 U.S. 825, 837, 842 (1994); Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000), though if the risk was obviously very great the jury must be permitted, though it is not required, to draw an inference that, despite the defendant's denials and the absence of direct evidence of his state of mind, he knew of the risk. Farmer v. Brennan, supra, 511 U.S. at 841-43 and n. 8; Haley v. Gross, 86 F.3d 630, 641 (7th Cir. 1996); Curry v. Scott, 249 F.3d 493, 506-07 (6th Cir. 2001).
Although there is no constitutional right to be shackled, once Woodall was in police custody the police had a duty to provide for his safety, Wang v. Reno, 81 F.3d 808, 818 (9th Cir. 1996) (per curiam); Stemler v. City of Florence, 126 F.3d 856, 867-68 (6th Cir. 1997), even though, since he himself was the prime danger to that safety, the usual rationale for the duty--that the state by taking a person into custody has limited his ability to look after his own safety--hardly applies. But in that respect the case is similar to cases that make clear that jailers must make efforts to prevent obviously suicidal prisoners from committing suicide. E.g., Jutzi-Johnson v. United States, 263 F.3d 753, 756 (7th Cir. 2001). A better rationale is that in both the suicide case and our kind of case, police conduct has increased the danger to the person whom they have taken into custody, making the police a cause in an uncontroversial sense of the injury for which the suit seeks redress.
The duty, however, as we have said, is just to avoid deliberate indifference to the prisoner's safety, implying avoidance of a known risk; it is not the duty of due care involved in negligence cases. This case is unusual, moreover, in that the risk of serious harm was not only, perhaps not even mainly, to Woodall, the person in custody, but also to Ridgway, the police officer. Unless Ridgway was suicidal or insane, neither of which possibility is suggested, he would not have failed to take additional precautions against the car crash and ensuing struggle (and resulting death of Woodall) had he known that he was running a substantial risk that Woodall would crash the car, break out, and perhaps kill him. Apodaca v. Rio Arriba County Sheriff's Dept., 905 F.2d 1445, 1446-47 and n. 3 (10th Cir. 1990); Winfield v. Bass, 106 F.3d 525, 538 (4th Cir. 1997) (en banc) (concurring opinion). This circumstance makes it impossible to infer that Ridgway knew that Woodall and there fore himself were at substantial risk of being killed or seriously injured. Hence the district court was right to grant summary judgment for Ridgway with respect to the claim that he exhibited deliberate indifference to Woodall's safety by failing to confine him more securely in the police car.
Had Ridgway been deliberately indifferent to Woodall's safety at that stage and thus legally responsible for Woodall's breakout, then the sequel--the struggle that ended in Woodall's death--would, if reasonably foreseeable, be his responsibility as well. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764, 785 (9th Cir. 2000); Jackson v. Sauls, 206 F.3d 1156, 1167-68 (11th Cir. 2000); cf. Beul v. ASSE Int'l, Inc., 233 F.3d 441, 447-48 (7th Cir. 2000). But as the premise has not been established, we must move forward to the struggle after Woodall forced the car into the ditch and consider whether Ridgway exhibited deliberate indifference in the struggle itself. Clearly not. He made no effort to use deadly force against Woodall (as he might have been expected to do in the circumstances), was reasonable in enlisting a bystander's aid, and took reasonable measures to protect Woodall from excessive force by Lykins by telling him to ease up on his choke hold. Cf. MacKay v. Farnsworth, 48 F.3d 491, 492-93 (10th Cir. 1995); Williams v. Willits, 853 F.2d 586, 587, 591 (8th Cir. 1988); compare Haley v. Gross, supra, 86 F.3d at 642. He could hardly foresee that this small unarmed man would kill the hefty Woodall, though it was later discovered that Lykins, the bystander, was a martial-arts expert.
Since Ridgway was the only employee of the City of Pana charged with misconduct in this case and we have just seen that he did not violate Woodall's constitutional rights, the City is in the clear as well; there was no wrongful conduct by its employee for it to be responsible for in this suit. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam); Treece v. Hochstetler, 213 F.3d 360, 364 (7th Cir. 2000). So we move on to the claim against Lykins. He is a private citizen rather than a public employee, but there are two circumstances in which private citizens can be brought within the grasp of section 1983 even though the statute is limited to acts under color of state law. First and more common, the citizen may have conspired with a public employee to deprive the plaintiff of his constitutional rights. Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Brokaw v. Mercer County, 235 F.3d 1000, 1016 (7th Cir. 2000). As a conspirator, the citizen is liable, in civil as in criminal law, for the wrongful acts of the other conspirators committed within the scope of the conspiracy. Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988); Loughman v. Consol-Pennsylvania Coal Co., 6 F.3d 88, 103 (3d Cir. 1993); Halberstam v. Welch, 705 F.2d 472, 481 (D.C. Cir. 1983). But there is no suggestion of that here.
Second, the private citizen may have become a public officer pro tem. Suppose that in an emergency the police deputized a bunch of private citizens to help them enforce the law, and the deputizations were entirely informal, perhaps not even in accordance with state or local law. Nevertheless these "deputies," performing, as they would be, public functions, would be considered to be acting under color of law within the meaning of section 1983. Soldal v. County of Cook, 942 F.2d 1073, 1075 (7th Cir.1991) (en banc), reversed on other grounds, 506 U.S. 56, 60-61 n. 6 (1992); see United States v. Shahid, 117 F.3d 322, 326-27 (7th Cir. 1997); cf. Payton v. Rush-Presbyterian-St. Luke's Medical Center, 184 F.3d 623, 628 (7th Cir. 1999); Street v. Corrections Corp. of America, 102 F.3d 810, 814 (6th Cir. 1996); Rockwell v. Cape Cod Hospital, 26 F.3d 254, 258 (1st Cir. 1994). But we do not think that the rendering of brief, ad hoc assistance to a public officer transforms a bystander into a state actor, exposing him to liability under federal law and, by doing so, discouraging people from helping the police. We cannot find a case on point but common sense and analogy carry the day. To assist the police is a duty of citizenship; and the performance of a duty to someone does not turn the performer into that someone. A private citizen does not become a policeman by complaining to a policeman, Hughes v. Meyer, 880 F.2d 967, 972 (7th Cir. 1989); Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 435-36 (7th Cir. 1986); Steele v. City of Bemidji, 257 F.3d 902, 906 (8th Cir. 2001); Redding v. St. Reward, 241 F.3d 530, 532-33 (6th Cir. 2001); Cruz v. Donnelly, 727 F.2d 79, 79-80, 82 (3d Cir. 1984) (per curiam), nor (the novel ...