Timothy Helseth v. John Burch, in His Individual Capacity

258 F.3d 867, 2001 U.S. App. LEXIS 17022, 2001 WL 856401

• Court: Court of Appeals for the Eighth Circuit
• Decided: July 31, 2001
• Docket: 00-3235
• Status: Published

Opinions

LOKEN, Circuit Judge.

In County of Sacramento v. Lewis, 523 U.S. 833, 835, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the Supreme Court held that “in a high-speed automobile chase aimed at apprehending a suspected offender ... only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a [substantive] due process violation.” In Feist v. Simonson, 222 F.3d 455, 464 (8th Cir.2000), which involved a high-speed pursuit of a stolen car, a panel of this court declined to apply the intent-to-harm standard of Lewis because the police officer “had ample time to deliberate” during the six-minute chase. In this case, an intoxicated driver seriously injured Timothy Helseth while being pursued at high speed by police officer John Burch. Relying on Feist, the district court denied Burch qualified immunity from Helseth’s substantive due process claim under 42 U.S.C. § 1983. Helseth v. Burch, 109 F.Supp.2d 1066, 1078 (D.Minn.2000). Burch appealed, and we granted his petition for initial en banc review.¹ We overrule Feist and reverse.

I. Background.

Shortly after midnight on August 22, 1995, an intoxicated Everett Contois raced his car on a straight stretch of road in Blaine, Minnesota, a Twin Cities suburb. Contois’s car was traveling 111 mph when it passed Blaine police officer William Bott in his squad car. Bott began pursuit, activating his lights and siren and notifying the police dispatcher of the chase. After Contois had successfully evaded Bott for several miles, running stop signs and stoplights at speeds of 60 to 80 mph, he raced passed Burch, who joined the chase as the lead squad car.

With Burch in close pursuit, Contois drove through four stop signs, stopped briefly in a dead-end cul-de-sac, and then drove through two lawns and over a small retaining wall to another street. As Con-tois slowed to make a right turn, Burch attempted to stop the Contois vehicle with three Pursuit Intervention Tactics (“PIT”) maneuvers, in which the officer drives alongside the rear of the fleeing vehicle, turns, and hits the vehicle’s rear end, causing it to spin and stop. The third PIT spun Contois’s vehicle into a grassy median, but Contois quickly sped off, heading in the wrong direction on Highway 10, a heavily traveled thoroughfare. Another PIT maneuver again spun Contois into the median, but he re-entered Highway 10 (now heading in the right direction) and accelerated to speeds of 80 to 100 mph. Contois turned onto Highway 65 and then 81st Avenue, entering the neighboring suburb of Spring Lake Park, where another police car joined the pursuit. Just over six minutes after Burch entered the chase, Contois ran a red light and collided with a pickup truck driven by Helseth. The crash killed Helseth’s passenger, seriously injured three juvenile passengers in Con-tois’s car, and left Helseth a quadriplegic. Contois was tried and convicted of third degree murder and other offenses in state court.

Helseth filed this § 1983 damage action against Burch, alleging numerous constitutional violations arising from Burch’s high-speed pursuit of Contois’s vehicle. After substantial discovery, Burch moved for summary judgment. The district court dismissed all but Helseth’s substantive due process claim. As to that claim, applying Feist, the court denied Burch qualified immunity because the evidence could support a finding that Burch conducted the pursuit with deliberate indifference to public safety and Helseth’s rights. Alternatively, applying Lewis, the court denied Burch qualified immunity because the evidence could support a finding that Burch intended to harm Contois and his passengers by engaging in the PIT maneuvers. Burch appeals the denial of qualified immunity. As Lewis makes clear, in considering the qualified immunity defense, we must “determine first whether the plaintiff has alleged a deprivation of a constitutional right at all.” 523 U.S. at 841 n. 5, 118 S.Ct. 1708. That is an issue we review de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994).

II. The Proper Culpability Standard.

Lewis reaffirmed that the substantive component of the Due Process Clause protects a private citizen against an abuse of power by an executive official that “shocks the conscience.” Lewis involved a § 1983 damage claim by a motorcycle passenger injured at the end of a deputy sheriffs high-speed chase. The Ninth Circuit reversed the grant of summary judgment to the deputy, concluding that “the appropriate degree of fault to be applied to high-speed police pursuits is deliberate indifference to, or reckless disregard for, a person’s right to life and personal security.” Lewis v. Sacramento County, 98 F.3d 434, 441 (9th Cir.1996). The Supreme Court reversed. The Court explained that the task was to determine the level of culpability which in this context “is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” 523 U.S. at 848 n. 8 & 849, 118 S.Ct. 1708. For high-speed police pursuits, the Court rejected the deliberate indifference standard, which it characterized as a “midlev-el” fault standard. Analogizing such pursuits to prison riots, the Court concluded that “only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation.” 523 U.S. at 836, 118 S.Ct. 1708.

Feist involved a high-speed police chase that ended when the stolen car being pursued hit Feist’s vehicle head-on at 100 mph. Eschewing the intent-to-harm standard of Lewis, our panel affirmed the denial of qualified immunity to the pursuing police officer, concluding that the deliberate indifference standard applies to a high-speed pursuit case if the pursuing police officer “had ample time to deliberate ... [and] made a deliberative decision to continue the chase and to be indifferent to the dangers obviously inherent in his conduct.” 222 F.3d at 464. In this case, the district court concluded that the deliberate indifference standard should apply because Burch, like the police officer in Feist, “engaged in conscious deliberation rather than reflexive conduct.” Helseth, 109 F.Supp.2d at 1076.

Our principal problem with the decision in Feist is that the panel paid too little heed to the Supreme Court’s holding in Lewis, instead relying primarily on a portion of the Court’s justification for that holding. The Court in Lewis was careful to state its holding in the first paragraph of the opinion — “in a high-speed automobile chase aimed at apprehending a suspected offender ... only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a [substantive] due process violation.” 523 U.S. at 836, 118 S.Ct. 1708. The Court restated its categorical rule toward the end of its opinion— “we hold that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983.” Id. at 854, 118 S.Ct. 1708. For the lower federal courts, an explicit Supreme Court holding is like a statute in that its plain language must be obeyed. Accord Kinstler v. First Reliance Std. Life Ins. Co., 181 F.3d 243, 250-51 (2d Cir.1999). Lewis plainly stated that the intent-to-harm standard, rather than the deliberate indifference standard, applies to all high-speed police pursuits aimed at apprehending suspected offenders.²

To be sure, the Court in Lewis explained that the deliberate indifference standard is appropriate “only when actual deliberation is practical.” 523 U.S. at 851, 118 S.Ct. 1708. The panel in Feist saw this language as an invitation to reject intent-to-harm as the governing standard whenever a judge or a jury could say, with the wisdom of hindsight, that an officer engaged in a high-speed pursuit had “ample time to deliberate.” But this reasoning not only produces a standard that eviscerates the holding of Lewis, it also gives too little recognition to the Court’s other bases for that holding — its historical reluctance “to expand the concept of substantive due process,” 523 U.S. at 842, 118 S.Ct. 1708; its explicit rebanee on Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), which adopted the intent-to-harm standard for a two-hour prison riot, 523 U.S. at 853-54, 118 S.Ct. 1708; its doubt whether “it makes sense to speak of indifference as deliberate in the case sudden pursuit,” 523 U.S. at 851, 118 S.Ct. 1708; its recognition that police officers confronting high-speed lawlessness are “subject to countervailing [law] enforcement considerations,” 523 U.S. at 855, 118 S.Ct. 1708; its concern that any standard less than intent-to-harm “might cause suspects to flee more often, increasing accidents of the kind which occurred here,” 523 U.S. at 858, 118 S.Ct. 1708 (Kennedy, J., concurring); and the belief of at least some Justices that the question of police officer liability for reckless driving during high-speed pursuits should be decided by the elected branches of government, 523 U.S. at 864-65, 118 S.Ct. 1708 (Seaba, J., concurring).³

Since Lewis, all other circuits that have examined the issue have applied the intent-to-harm standard in high-speed police pursuits cases, without regard to the potentially limiting factors identified by the panel in Feist — the length of the pursuit, the officer’s training and experience, the severity of the suspect’s misconduct, or the perceived danger to the public in continuing the pursuit. See Trigalet v. City of Tulsa, 239 F.3d 1150, 1155 (10th Cir.2001); Davis v. Township of Hillside, 190 F.3d 167, 170 (3d Cir.1999), cert. denied, 528 U.S. 1138, 120 S.Ct. 982, 145 L.Ed.2d 932 (2000); Onossian v. Block, 175 F.3d 1169, 1171-72 (9th Cir.), cert. denied, 528 U.S. 1004, 120 S.Ct. 498, 145 L.Ed.2d 385 (1999); Salamacha v. Lynch, 1998 WL 743905, at *2 (2d Cir. Sept.25, 1998). We now join those circuits and overrule Feist. We hold that the intent-to-harm standard of Lewis applies to all § 1983 substantive due process claims based upon the conduct of public officials engaged in a high-speed automobile chase aimed at apprehending a suspected offender.

III. Did Officer Burch Intend To Harm?

Although we overrule Feist, we agree with its decision “that the Lewis intent standard applies regardless of whether a suspect or bystander is hurt.” 222 F.3d at 462. Accord Onossian, 175 F.3d at 1171— 72. The district court denied Burch summary judgment under the intent-to-harm standard because Burch’s deliberate ramming of Contois’s vehicle in four PIT maneuvers would permit a reasonable jury to “infer from these facts that Burch intended to harm Contois and the three juvenile passengers in his car.” 109 F.Supp.2d at 1077.

The district court’s decision conflicts with Davis v. Township of Hillside, 190 F.3d at 171, where the Third Circuit concluded that deliberate ramming of a fleeing suspect’s car “does not permit an inference of intent to harm” under Lewis. We agree with the decision in Davis. In applying the Lewis standard, “only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation.” 523 U.S. at 836, 118 S.Ct. 1708 (emphasis added). Here, the undisputed evidence is that Burch employed the PIT maneuvers in an attempt to stop the fleeing Contois vehicle and apprehend its driver. The only harm intended by this conduct was incidental to Burch’s legitimate objective of arresting Contois. That intent does not, as a matter of law, establish a substantive due process violation.⁴

Moreover, the PIT maneuvers failed in their objective, and Contois continued his high-speed flight. Contois eventually crashed into Helseth’s vehicle, with Burch still in pursuit. At that time, Burch had no more intent to harm than that inherent in the high-speed pursuit of any suspected offender. On appeal, Helseth points to Contois’s deposition testimony that he felt terrorized by Burch’s aggressive pursuit and argues that this case is like Checki v. Webb, 785 F.2d 534 (5th Cir.1986), which the Court in Lewis cited as an example of intent to cause harm unrelated to the legitimate object of an arrest. 523 U.S. at 854 n. 13, 118 S.Ct. 1708. But unlike the law-abiding citizens in Checki, who were hounded for miles by police officers in an unmarked vehicle, Contois was a fleeing criminal, whose irresponsible high-speed driving endangered countless citizens and ultimately killed one innocent bystander and maimed another, Timothy Helseth. Burch and the other police officers who risked their lives to remove this menace from the public highways were not guilty of a conscience-shocking intent to harm.

Society could reasonably decide that an innocent bystander injured during such high-speed police pursuits should be compensated from the public coffers. But that is a legislative decision. There was no violation of Helseth’s rights under the Due Process Clause. The August 18, 2000, order of the district court is reversed in part, and the case is remanded for entry of an order dismissing Helseth’s § 1983 complaint.

1 . The parties in Feist settled while the officer’s petition for rehearing en banc was pending. The petition was then dismissed, with four judges dissenting. 222 F.3d at 465. Only the court sitting en banc may overrule the Feist panel decision. See United States v. Missouri Valley Constr., Co., 741 F.2d 1542, 1546 (8th Cir.1984).

2 . Six Justices joined Justice Souter's majority opinion in Lewis. Justice Stevens concurred in the judgment because he would have granted the deputy qualified immunity, thereby avoiding the constitutional issue. 523 U.S. at 859, 118 S.Ct. 1708. Justices Scalia and Thomas concurred in the judgment because they would have rejected the shocks-the-conscience standard and held that there is no "substantive-due-process right to be free from reckless police conduct during a car chase.” 523 U.S. at 863, 118 S.Ct. 1708. Given this array of views and the clarity of the Court's holding, we find no basis to infer that a majority of the Court would now retreat from Lewis's bright-line standard and adopt the fact-intensive, hindsight-oriented approach of the panel in Feist.

3 . Under Minnesota law a police officer has official immunity from claims for injuries caused by his or her decision to engage in and continue a high-speed pursuit. Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn.1992).

4 . Had Burch succeeded in stopping the Con-tois vehicle, his actions in effecting such a seizure would have been subject to a reasonableness challenge under the Fourth Amendment. See Brower v. County of Inyo, 489 U.S. 593, 599-600, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). But Contois eluded arrest and resumed his flight. A § 1983 claim challenging Burch's continued pursuit must be based upon substantive due process. See Lewis, 523 U.S. at 842-45 & n. 7, 118 S.Ct. 1708.