DENVER (CN) – A license inspector’s assault and battery of the owners of a doggie daycare business in Denver may have been “deplorable,” but it did not rise to the level of a constitutional violation, the 10th Circuit ruled. Instead, the court said Richard Berney had simply “lost it on the job.”
Berney walked into The Golden Bone – a kennel owned by plaintiffs Reed Williams and Marcy Albin – in “an agitated and aggressive manner,” told the owners they needed a kennel license and threatened to shut down their business. Albin said a city official had told them a license was not necessary. Berney accused her of lying and showed her a copy of the licensing ordinance, which she took to the back room to photocopy.
Deciding that she was taking too long, Berney followed her into the back. Williams told Berney to wait in the front lobby, but Berney refused, “stating repeatedly that he was a city official and could go wherever he wanted to go, all the while using profane and threatening language and forceful movements of his body,” the owners claimed in their lawsuit against the inspector.
They claimed Berney, “without provocation … pushed, shoved and repeatedly struck” Williams “both inside and outside the business.” When Albin stepped in to help, the inspector also hit and pushed her, the suit claimed.
Williams had a stroke 10 days later that he attributed to the fight.
Plaintiffs claimed Berney’s assault violated their 14th Amendment right “to be free from conscience-shocking government conduct,” the ruling states.
But Berney’s actions, however outrageous or criminal, did not cross the line from ordinary state tort law to constitutional tort, the appeals court ruled. The city never authorized the attack, so the complaint did not involve an abuse of power that would have raised the case to the constitutional level.