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August 31, 1979

ROSEMARY POPOW, as General Administratrix and Administratrix ad Prosequendum of the Estate of Darwin Popow, deceased, and ROSEMARY POPOW, individually, Plaintiffs,
CITY OF MARGATE, a municipal corporation, and GEORGE BIAGI, Defendants.

The opinion of the court was delivered by: BROTMAN

In this civil rights action under 42 U.S.C. § 1983, plaintiff Rosemary Popow, individually and as administratrix of the estate of her husband Darwin Popow, seeks damages for his death. Darwin Popow was shot dead by a City of Margate police officer who was pursuing another man he believed to be a fleeing kidnapper. An innocent bystander, the decedent was killed after stepping outside his home on a residential street in Margate in response to the commotion. Defendants include the City of Margate and George Biagi, the police officer who fired the fatal shot. In addition to the cause of action pleaded pursuant to § 1983, with jurisdiction premised upon 28 U.S.C. §§ 1343(3) and 1331, plaintiff asserts pendent state claims pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 Et seq.

Before the court is a motion for summary judgment by defendants, Fed.R.Civ.P. 56, in which they argue that plaintiff has stated no claim cognizable under § 1983, and that the court accordingly has no pendent jurisdiction over the state law claims. Officer Biagi argues that the allegations amount to no more than negligent conduct on his part, which is an insufficient basis for a § 1983 suit. The City of Margate argues that there is no allegation or evidence of unconstitutional official policy or custom sufficient to establish liability. Finally, both defendants assert that the factual allegations in the complaint state no claim of deprivation under the fourth, fifth, eighth, and fourteenth amendments.

 The issues raised in this motion admit of no easy resolution; the law on the subject of both negligence as a basis for a civil rights action and of municipal liability for police action is unsettled, with no clear guiding precedent from the Supreme Court or from the Third Circuit Court of Appeals. After a careful review of the case law and consideration of the problem, the court concludes that the motion must be denied as to both defendants.

 1. Officer Biagi.

 Counts I and III of the complaint allege that Biagi used excessive force and acted in a "reckless, malicious, unlawful, and negligent manner," which caused the death of Darwin Popow. Biagi relies primarily on Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), for his argument that the negligent shooting of an innocent bystander does not state a claim under § 1983. Plaintiff counters that even if simple negligence is not actionable in a § 1983 suit, gross negligence is. She argues that the pleadings and the deposition testimony demonstrate a genuine issue of material fact as to whether Biagi's actions constitute more than simple negligence.

 To prevail in a civil rights action under § 1983, a plaintiff must establish two elements: (1) that the defendant has deprived him of a right secured by the Constitution and (2) that such deprivation was caused by a person acting under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). In this case, the primary constitutional claim is that defendants violated the decedent's right to life without due process of law, as explicitly guaranteed by the fourteenth amendment.

 Paul v. Davis, supra, is one of a line of Supreme Court opinions limiting the use of the fourteenth amendment's "life, liberty and property" clause as the sole source of the right allegedly violated under the first element in a § 1983 suit. The five-justice majority held that there was no deprivation of a constitutional right where state officials placed the plaintiff's name and picture on a list of "active shoplifters," although he had never been convicted of shoplifting. Justice Rehnquist reasoned that reputation is not a liberty or property interest protected by the fourteenth amendment. While this holding is relatively narrow, Justice Rehnquist expressed a broader dissatisfaction with including torts within the scope of civil rights actions, simply because the defendant is a state official. He posited the very fact situation now before the court:

"It is hard to perceive any logical stopping place to such a line of reasoning. Respondent's construction would seem almost necessarily to result in every legally cognizable injury which may have been inflicted by a state official acting under "color of law' establishing a violation of the Fourteenth Amendment. We think it would come as a great surprise to those who drafted and shepherded the adoption of that Amendment to learn that it worked such a result, and a study of our decisions convinces us they do not support the construction urged by respondent."

 Id. 424 U.S. at 698-99, 96 S. Ct. at 1159.

 As defendant candidly acknowledges, this is pure dictum, addressed to a general concern that if all negligent conduct on the part of state officials may be the subject of a § 1983 action, a generalized federal tort law will usurp the traditional role of state law in the area. But in two subsequent cases in which the Supreme Court granted certiorari on the question of whether negligent deprivations of constitutional rights may be the basis for § 1983 suits, the cases were resolved on other grounds. Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978) (good faith immunity shielded defendants from liability for negligent interference with prisoner's outgoing mail); Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979) (3-day imprisonment of wrong person based upon facially valid warrant not a constitutional deprivation). In the latter case, Justice Rehnquist, the author of the Paul v. Davis opinion, wrote for the majority:

"Having been around this track once before in Procunier, supra, we have come to the conclusion that the question whether an allegation of simple negligence is sufficient to state a cause of action under § 1983 is more elusive than it appears at first blush. It may well not be susceptible of a uniform answer across the entire spectrum of conceivable constitutional violations which might be the subject of a § 1983 action."

 -- - U.S. at -- , 99 S. Ct. at 2692. *fn1" Thus, Paul v. Davis is not the last word from the high court on the question.

 This court's review of the case law indicates that it would be a departure from the settled analysis of § 1983 actions to hold that, where the two elements of constitutional deprivation and causation accomplished under color of state law are present, there is nevertheless no cause of action stated because defendant's actions are negligent in that he did not intend to injure the particular plaintiff. In Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), the Supreme Court refused to read into § 1983 a requirement that defendant's actions be willful, analogous to that in the criminal civil rights provision construed in Screws v. United States, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945). The Monroe Court stated that § 1983, which provides a civil remedy, "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." Id. at 187, 81 S. Ct. at 484. The Third Circuit Court of Appeals in Howell v. Cataldi, 464 F.2d 272 (1972), stated that while this language is not to be read ...

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