Beshers v. Harrison

Before BIRCH BLACK, Circuit After proceeding a yards, few hundred Judges, and PRESNELL,* District Judge. pulled into a shopping center and stopped just long enough to let passen- BLACK, Judge: Circuit ger out of his car. He then drove out of In this appeal, we consider whether Offi- the parking lot proceeded and south on cer Harrison, Scott who allegedly termi- Highway 17-A. Harrison turned on his nated a high-speed by causing David sirens, called the truck’s plate license into crash, Beshers’ vehicle to violated Beshers’ dispatch, reported and the suspect Fourth Amendment right to be free from vehicle was not stopping. Both vehicles unreasonable seizures. affirm We the dis- accelerated to 55 per miles (mph) hour trict grant court’s of summary judgment, the 45 mph zone. As fled, Beshers having determined that no constitutional wove through traffic, occasionally strad- violation occurred. dling both southbound lanes. I. BACKGROUND1 Corporal Matt Ramey and Officer Linda On the afternoon of April the Addis, were traveling on High- northbound City of Toccoa Police received a report way 17-A when they heard the radio re- from Quick Bev’s Stop that a customer port. According Addis, to Ramey ordered (later Beshers) identified as tried to steal her to perform a by roadblock driving the beer after the clerk refused to sell it to police vehicle directly in path of Besh- him. The customer appeared to be intoxi- ers’ oncoming truck. Beshers swerved cated and had already been store avoid roadblock, crossing the center number of times day purchase alco- line and driving into oncoming traffic. hol. Officer Scott Harrison responded to Beshers then returned to his proper lane Quick Bev’s Stop and viewed video surveil- and driving continued south on Highway lance of the suspect’s truck. Shortly after 17-A. About time, this same Officer John Bev’s, leaving Harrison noticed truck joined Whitworth pursuit. matching description of the suspect vehicle at a nearby proceeded Beshers gas station. down Highway 17-A, Harrison watched the truck turn followed in by line Harrison, out of the gas Whitworth, station and run a stop and Addis sign as and Ramey. it entered Beshers continued Highway 17-A, a busy four-lane weave through road with traffic and force numer- shopping centers, fast ous food restaurants, motorists to the side of the road. As Wal-Mart, and an occasional he approached hotel on ei- the intersection of Highway ther side. Harrison activated his 17-A emer- Lane, Rose his lane of travel was lights, gency triggering his video equip- by blocked a car stopped at a red light. ment record, and began to follow the To avoid stopping, Beshers drove onto the car. right shoulder of Highway 17-A. As he * Gregory Honorable Presnell, A. United (2007), States typically adopting means Judge District for the Middle District of Flori- plaintiff's version of qualified facts in a immu da, sitting by designation. nity Nonetheless, case. in this as in 1. We required are view all facts and draw Harris, we have the benefit of viewing two all reasonable inferences in favor of the non- videotapes patrol cars involved in moving party when reviewing grant of sum pursuit. Thus, to the Appellant's extent mary judgment. Brosseau v. Haugen, 543 version of the facts is clearly contradicted n. 125 S.Ct. 597 n. the videotapes, such that no jury (2004). L.Ed.2d 583 Supreme Court it, could believe we do not adopt his factual - recognized -, Scott v. allegations. Id. 167 L.Ed.2d 686 Harrison Harrison. pass attempt car, driver-Fran- alongside pulled front swerving in Beshers blocked Lane. Rose onto right Lyon-turned cis rammed truck Beshers’ him, and turned Beshers collided. cars two then Beshers cruiser.2 police back Lane. Rose down accelerated right lane the southbound back swerved took collision, Whitworth After drove Beshers followed. soon Beshers position. pursuit on lead pass attempted road 145, a nar- Highway Georgia came onto As turned shoulder. road country cruiser front row, winding two-lane around road, pas front Harri- point, At this to return tried sides. both homes clipped cruiser Harrison’s side the lead senger regain Whitworth passed son causing truck, Beshers’ of quarter rear the im- to continued Beshers position. pursuit on died Beshers times.3 flip several it to dou- crossing the vehicles pass properly impact.4 the on drove also He line. center ble son, Jason 2004, 10, Beshers’ March On motor- forced and road of the side wrong 42 under suit filed (Appellant) Beshers In road. the of side to the pull to ists Toccoa City of the against § 1983 U.S.C. the center crossed alone, Beshers stretch Frank Police of Chief (City), Toccoa times, main- while at least six line double Har- Scott Officers Strickland, Toccoa and mph. 65 and 55 between taining speeds Ramey, Whitworth, Matthew rison, John passed Harrison attempts, multiple After Defendants), (collectively Addis Linda and to he intended testified Harrison Beshers. his of alia, violation inter alleging, to and down to slow Beshers encourage from free to be Amendment Fourth oncoming traffic. warn In seizures.5 and searches unreasonable motion filed Defendants swerved response, Beshers immediately, Almost individu- claiming the judgment, summary apparent in an lane northbound the v. Con confronting Graham them[.]” stances nor, af- (Appellant), son, Beshers Jason 2. Beshers’ 1872, 109 490 videos, ramming alleges the viewing the ter rele (1989). Although not L.Ed.2d Harri- because occurred and accidental was after that inquiry, we note vant passing after brakes his on slammed son Spe Patrol accident, Georgia Highway vid- determine We cannot Beshers. completed an Report Team Collision cialized applied Harrison or not eotapes whether The crash. of investigation independent ramming. and caused brakes Harrison's struck Beshers that report found Beshers and that multiple times patrol car videotapes shows pursuit of review 3. A of time at the "highly intoxicated” that conclude juror could a reasonable “There Report concluded: The incident. Besh- intentionally pushed (1) Harrison either any there suggest that to evidence no pressed and road side off the Police the Toccoa of act on behalf intentional of quarter rear against police cruiser than involved, other anything do to Officers quarter of (2) truck, the rear Beshers’ highway driver get an intoxicated side passenger the front struck truck Beshers’ dealing of police methods accepted utilizing pass to tried as Beshers police cruiser a uni yield who refuses driver awith proceedings, stage in thisAt Harrison. car.” patrol a marked officer formed draw facts view the compelled to motion we are to Defendants’ was attached Report light most in the Additionally, the inferences summary judgment. all Haugen, Brosseau Strickland Police to Beshers. Chief of City Toccoa n. determined n. incident investigated 543 2, Therefore, we Stan Toccoa (2004). violated L.Ed.2d the officers none intentionally caused Procedures. Operating Harrison dard will assume collision. Besh- alleged violation 5.Appellant pro- right to due force case ers’ Fourteenth excessive inquiry in an 4. The that are law claims state and number 'objectively cess are actions the officers' "whether appeal. onus before circum- the facts light of reasonable’

al defendants were qualified entitled to that the use of deadly force was necessary immunity. They also argued Appellant prevent escape; gave a warning, provide could not evidence to support a feasible, if about the possible use of deadly claim for supervisor or municipal liability. force. The court found Harrison had probable cause to

On believe posed November the district court an immediate granted others motion for summary because he judgment was driving erratically, all was suspected First, Defendants. the court de intoxicated, be and had termined struck there was another no mo- evidence Officer torist with his Harrison vehicle. The intentionally court thus caused his vehicle to concluded it was not collide “obvious” that no so Fourth Gar- Amend «.erprohibited the ment seizure occurred. In force to alternative, stop Beshers. court court concluded further found even if a constitu that Appellant failed tional occurred, identify violation any “case would demonstrates a entitled qualified clearly established immunity because rule prohibiting there was no “clearly officers from engag- established” law that ing high-speed pursuits would put attempting notice that his use a rolling conduct roadblock to violated slow or Beshers’ constitutional fleeing suspect rights. See, who the e.g., officers Harlow reasonably v. Fitzgerald, 457 800, poses 818, danger U.S. 2727, 102 others.”6 2738, S.Ct. 73 (1982) L.Ed.2d 396 (holding that qualified On 15, 2005, December Jason Beshers immunity government shields officials timely appealed the district grant court’s from liability if their acts do not violate of summary judgment. After initial brief “clearly established statutory or constitu ing and argument, oral the Supreme Court rights tional of which a — person issued Harris, Scott v. U.S. -, 127 known”). would have The district court 1769, S.Ct. 1774, 167 (2007), L.Ed.2d 686 explained that under the then-controlling which discusses the use of force law of Garner, Tennessee v. 1, 471 U.S. during a high-speed police pursuit. After 11-12,105 1694, S.Ct. 1701, 85 L.Ed.2d 1 analyzing the impact of Harris and careful (1985), a police officer could use deadly ly reviewing record, we affirm the force to seize a fleeing felony suspect only district grant court’s of summary judg when (1) the officer probable “ha[d] cause ment and hold that Harrison did vio to believe that pose[d] a late Beshers’ Fourth right of serious physical harm, either to the be free from excessive force during a seiz officer or (2) others”; reasonably believed ure.7

6. The district granted court also summary train against action county because the judgment City Toccoa, of of Chief Po- automobile accident did not rise to a level of Strickland, lice Frank Corporal Ramey, Matt violating their rights); constitutional Vineyard and Officers John Whitworth and Linda Ad- County v. Murray, 990 F.2d of 1211 dis. (11th Cir.1993) ("Only when it is clear that a specific violation of rights has We occurred can further conclude the district court did question § municipal 1983 liability err granting summary fo judgment to the r injury arise.”); Toccoa, City of Sikes, see also Campbell Chief of Police v. Frank Strick- land, Corporal (11th F.3d Cir.1999) Ramey. Matt We (stating need not Appellant’s address the that a claim supervisory claims municipal liability fails supervisory liability since where we there is no underlying conclude no constitutional constitutional violation). violation occurred. See Rooney Appellant did not appeal Watson, v. 101 F.3d 1381 n. 2 (finding court's grant summary judgment to Offi plaintiffs could not maintain a failure to cers John Whitworth or Linda Addis. 2002) (internal and cita quotation marks DISCUSSION

II. omitted). tions alia, inter argues, Appellant qualified questions of im- resolving “In summary by granting erred court district (1) required are to resolve munity, courts after favor judgment question: Taken in the ‘threshold an un subject to was not finding Beshers party asserting the Fourth most in violation lawful seizure alleged show the offi- (2) injury, do the facts Amendment, determining even conduct violated constitutional occurred, cer’s Officer if a violation — -, v. right?’” im Scott qualified entitled nonetheless 167 L.Ed.2d district court’s munity. We review Katz, 533 novo, (quoting Saucier v. de re summary judgment grant of 194, 201, 121 L.Ed.2d material genuine disputes all solving (2001)). “If, if, only the court Thorn of Beshers. Skrtich fact in favor Cir.2002). (11th right,” finds a violation of a constitutional ton, 280 F.3d clearly it does ask whether “if the appropriate Summary judgment is the time of the violation. established answers to inter depositions, pleadings, ques- file, We thus turn the threshold together rogatories, and admissions whether Officer Harrison tion this case: affidavits, there any, if show that Fourth Amendment violated Beshers’ fact any as to material genuine issue is no rights. to a moving is entitled party and that of law.” Fed. matter

judgment as a pro Fourth Amendment 56(c). Harrison’s entitlement R.Civ.P. from the use of right to be “free vides the law to question is immunity a qualified of an investi force the course excessive Sutherland, v. Cagle de novo. be reviewed per stop or other ‘seizure’ gatory Cir.2003). (11th 980, 334 F.3d 985 Kesinger rel. Kesinger ex Estate son.” immunity government (11th Qualified protects 1243, 1248 Herrington, 381 F.3d v. discretionary functions performing Cir.2004); officials amend. IV. see also U.S. Const. liability long as their claim, from individual excessive force To establish an clearly estab not violate conduct “does Beshers was must first show Appellant rights of statutory or constitutional meaning lished of the Fourth within the “seized” Cox, a would 343 person reasonable v. Vaughan which See Amendment. (11th Cir.2003). Fitzgerald, 1323, 457 U.S. A Harlow v. Fourth known.” F.3d 1328 2727, 2738, 800, 818, 73 L.Ed.2d is occurs when “there 102 S.Ct. seizure Amendment (1982). immunity of freedom of purpose of termination governmental “The 396 a intentionally carry through officials means governmental allow movement Inyo, 489 County discretionary duties without Brower v. applied.” out their 1378, 1381, 593, 597, 103 harassing liti S.Ct. liability or 109 personal U.S. fear of in original).8 (emphasis suit all but 628 protecting from L.Ed.2d gation, Brower, Supreme States the United one who is know In incompetent or plainly police cruiser if a explained Lee law.” v. Court violating the federal ingly (11th car and side- alongside fleeing a Ferraro, pulls 1194 Cir. F.3d 284 place in order to Brower, put motion set in found decedent 8. the Court In was meant he was .... Brower stolen car achieve that result "seized” when the 489 driving police roadblock. ... stopped by into a crashed ... roadblock—and to be Court S.Ct. at 1383. The at at U.S. Id. 109 S.Ct. stopped.” at was so enough for a seizure that “it [is] reasoned: 1382. instrumentality very person stopped it, crash, swipes thereby producing- a court must ask reasonable offi- occurs. at seizure Id. 109 S.Ct. at cer would believe this level of force is 1381. But if a in a police necessary in the situation at hand.” Fer- (internal raro, unexpectedly loses of his car control 284 F.3d at 1197 quotation crashes, omitted). no seizure occurs. Id. This is marks and inquiry citations because the crash was “through not caused should be “perspective viewed (em- intentionally applied.” scene, means a reasonable officer on the rather original); phasis see County than with the hindsight” vision of 20/20 Lewis, 833, 844, v. embody Sacramento “must allowance the fact L.Ed.2d 1043 that officers are often forced to (1998) (“[N]o Fourth seizure split-second make judgments—in circum- would take place ‘pursuing police tense, uncertain, where a stances that are rap- sought car only by idly evolving—about the amount of force authority represented by show of flashing necessary that is in a particular situation.” lights continuing Connor, pursuit,’ 396-97, but acciden- at 109 S.Ct. at tally stopped suspect by crashing, into

him.”) Brower, (quoting 489 U.S. at noted, As the district court the Supreme 1381). Court that, found Tennessee Garner

Here, maintains, Officer circumstances, depending on the the use of agreed, district court deadly there no evi- prevent force to escape of a intentionally dence he caused his vehicle to felony suspect may may not be constitu (cid:127) Nonetheless, collide tionally decedent. reasonable. 471 U.S. at viewing the evidence in the most S.Ct. at explained: 1701. The Court favorable to the Appellant, we conclude Where the suspect poses no immediate juror could determine Harrison to the officer and no threat intentionally collided with Beshers. Ac- others, the harm resulting from failing cordingly, for purposes only, of this appeal apprehend him does not justify the operate we under the presumption force to do so A ..... Harrison “seized” as that term is police may unarmed, officer not seize an defined under the Fourth Amendment. nondangerous suspect deadly [with .... force] We must next decide whether ... [But] [w]here the officer prob- has the force used to effectuate the seizure able cause to suspect believe that the was reasonable. “[A] ‘[s]eizure’ alone poses harm, a threat physical of serious enough § liability; 1983 the seizure ” , others, either to the officer or it is not must be ‘unreasonable.’ 489 Brower constitutionally prevent unreasonable to 599, U.S. at 109 S.Ct. at 1382-83. “The escape by Thus, using deadly force. if inquiry ‘reasonableness’ in an excessive suspect the threatens the officer with a objective force case is an one: question the weapon probable or there is cause is whether the officer’s actions are ‘objec believe that he has committed a crime tively reasonable’ in of the facts and involving the infliction or in- threatened him, circumstances confronting without re fliction physical harm, of deadly serious gard to his underlying intent or motiva may force be if necessary pre- used tion.” Kesinger, at (citing 381 F.3d 1248 if, vent escape, feasible, and where some Connor, 397, Graham v. 386, 490 U.S. 109 warning given. has been (1989)). S.Ct. 104 443 L.Ed.2d “[T]o determine whether the amount of 11-12, 1701; Id. at 105 S.Ct. at see also by police force used officer proper, Haugen, 194, 197-98, Brosseau v. 543 U.S.

1267 Officer’s] [the or not “[w]hether that (2004). sized L.Ed.2d 588 598, 596, 160 125 S.Ct. ‘deadly of application constituted actions precondi three Garner, required we After [the matters force,’ that all An deadly force. of the use tions Id. at were reasonable.” actions Officer’s] cause ‘“(1) probable ha[ve] must: officer threat poses suspect the that believe in de- either that harm, reiterated Court physical The Harris serious of commit a seizure he has of ‘that reasonableness or the others’ termining or to officer of quality infliction the nature involving the balance crime it “must ted Fourth physical individual’s of serious on the infliction intrusion the threatened impor- against that believe[] (2) reasonably interests harm;’ al- pre necessary to interests governmental of deadly [is] force tance of use (quot- given some the intrusion.” justify leged ha[ve] escape; vent 696, Place, U.S. 462 of use v. States possible United ing warning about 110 77 L.Ed.2d at 1329- Cox, F.3d 343 S.Ct. force, if feasible.” case, risk 11-12, ramming Thus, in a (1983)). at Garner, U.S. (quoting pose actions original). the officer’s bodily in harm 1701) (emphasis at against weighed must suspect however, in Scott Recently, ensuring public interests governmental appli Garner’s limited Court Supreme caused eliminating safety and — -, cability. consider- Id. After suspect. fleeing aby noted (2007). Court L.Ed.2d perhaps “weights] a court how ing Fourth Garner, applied they that nu- killing injuring or probability lesser po to a test reasonableness Amendment’s perhaps against bystanders merous slight, “young, shooting a lice officer killing a injuring probability larger back ... burglary unarmed stated: the Court person[,]” single away on running he was while head of the process in this appropriate it think We (quoting at 1777 Harris, 127 S.Ct. foot.” number only account take at 21, 105 S.Ct. at Garner, relative their risk, but lives omit marks 1706) (internal quotation after suspect], [the It culpability. “[w]hatever that ted). found Court himself placed intentionally all, who might the factors said about Garner en- unlawfully danger public shooting justified flight reckless, speed high in the gaging appli have scant ‘preconditions’ such be- choice ultimately produced reasonableness cability” to con- officer] [the evils two tween car high-speed ain deadly force cars, blue Multiple fronted. collision. intentional by an terminated had blaring, sirens flashing and lights in (emphasis at Harris, S.Ct. nearly ten suspect] chasing [the been flee a bumping car’s “A police original). warning their ignored miles, he but police a like fact, not much is, in car ing might who contrast, those By stop. per hit a as to so gun a shooting man’s officer] [the had harmed been have by posed son[,] [n]or entirely were he did action taken even unarmed an foot of flight difficulty in little We innocent. dan the extreme comparable remotely Scott reasonable was concluding it in respondent by posed life to human ger did. that action take marks (internal quotation Id. case.” this omitted). (footnote Id. flee omitted) to a (referring citations no- rejected specifically Court in an high speeds at driving motorist ing by public protect can police that tion empha Court police). to elude effort ceasing pursuit. a at It Id. ex- We therefore hold Harrison did not vio- plained calling that a pursuit does not late Beshers’. Fourth guarantee driving stop will reck- be free from during excessive force a sei- lessly may “perverse create incen- zure. Having found no constitutional vio- tives” for individuals to flee and drive Harrison, lation proceed we need not recklessly Instead, to evade arrest. it step qualified immunity the second down more sensible rule: A “la[id] Harris, analysis. See at 1774. attempt dangerous officer’s terminate high-speed car threatens the III. CONCLUSION bystanders lives innocent does not vio- Based on the foregoing, we affirm the Amendment, late the Fourth even it when grant district summary judg- court’s places the fleeing motorist at risk of seri- ment to the Defendants on all of Appel- injury ous or death.” Id. lant’s federal law claims. apply When we Harris the facts AFFIRMED. of this we have no that Harri doubt alleged deadly son’s use force to PRESNELL, Judge, District Beshers did violate the Fourth Amend concurring: above, ment. As we noted to determine Harris, light In I compelled am deadly force was reasonable we However, panel concur in the I decision. must determine whether Officer Harri panel think opinion fails to portray the son’s objectively actions were reasonable facts in the proper light. in We light of the start with facts and circumstances of pursuit. Herrington, premise See 381 F.3d at officer Harrison applied Connor, (citing force to seize Beshers. The ques- 1872). S.Ct. at From perspec Harrison’s is, tion objectively was of force tive, he had reason to believe Beshers was under facts circum- a danger to the pursuing officers and oth stances of this case? When the facts driving and was under the influence of viewed, this they case are must be at alcohol. Harrison observed Beshers weav this in stage, light most ing traffic, in and crossing out of the dou I Appellant, they believe demonstrate yellow line, ble driving center on the a much closer case than Har- wrong road, side of the and forcing others My facts, ris. view those assessed off the road. He witnessed Beshers crash standard, of the appropriate is as Lyon’s Ms. vehicle and was rammed follows: several times Beshers’ truck while trav eling between 55 mph and 65 on Highway Background I. Harris, 145. As in “intentionally April On Officer Scott Harrison placed himself and the public danger by dispatched Quick to Bev’s Stop, unlawfully engaging reckless, high- Toccoa, convenience Georgia. store A speed flight.” 127 S.Ct. at 1778. store, believing clerk at the a customer He ignored cars, the “[m]ultiple police intoxicated, had refused to sell him lights flashing blue blaring” sirens beer. When Harrison arrived he was told that had chasing nearly been him for down, the put gotten man had the beer minutes. Id. Based on these circum vehicle, stances, into a and left. The clerk showed we conclude that if Harrison in a tentionally Harrison video of the deadly used man’s truck. Har- force to seize Beshers, the use of such rison many force was was not told how people reason were able. truck, in the or whether the man who had in directly cruiser her stopped and tion driver the was buy the beer to attempted in 10 feet halting perhaps path, Beshers’s passenger. aor to forced was Beshers him.2 of front leaving Harrison, just after According into crashing to avoid and swerve brake David encountered he Stop Quick Bev’s constitut- maneuver This roadblock.3 this a it run watched and pickup Beshers’s force, before long the ed his emer- on turned then sign. Harrison suspected allegedly even was Beshers cruiser’s his activated which lights, gency felony. a a traveling having committed After recording system. video 17-A, Besh- Highway down distance short lane, proper the returning After shopping a into pulled and signaled ers 17-A. Highway down proceeded Beshers long stopped He lot. parking center driving Beshers show not does video The was who a passenger, drop off enough off any motorists forcing erratically or containing bag plastic white carrying several lanes changed Beshers road. and pack, a six size something about pulled and slowed drivers times, some and 17-A. Highway onto back pulled then pavement edge of to the —not followed and siren his on turned Harrison parade response presumably thereafter, it— Shortly highway. onto him sirens. and lights flashing with officers license truck’s radioed Harrison 17-A Highway intersection theAt testified Harrison number. plate car up behind Lane, came Beshers Rose nothing wanted was Beshers point, this aat stopped lane, which right of- misdemeanor than significant more right onto swerved Beshers light. red fenses. car, which around to go shoulder proceeded Beshers As Beshers As Lyon. by Francis driven Whit- 17-A, John Officer Highway down to make began she Lyon, alongside pulled chase.1 joined the a u-turn made worth resulted apparently turn, which right approaching Addis, also Linda Officer Besh- truck.4 his sideswiping her vehicle opposite from Beshers Lane.5 Rose onto right turned then ers intersec- an into 17-A, angled on direction video, tell, from impossible It 4. cruis- in Whitworth’s recording system 1. The Toc- The collided. vehicles two un- whether for an but videotaped the er also per- have subsequently claimed officers coa audio. no it has reason known assault an intentional as collision ceived had cruiser Addis’s system in recording clearly 2. video But the Lyon. on by Beshers video, unknown also nor audio (2) neither Lyon, alongside (1) pulling Beshers shows reasons. immedi- Beshers right, and turning Lyon truck of his nose jerking ately drove Beshers opinion notes panel 3. The hitting her. Lyon, to avoid from right away traffic,” Besh- suggesting — oncoming “into drivers. other menace simply chose original- had sug- Beshers support such is not clear It videotape does toor an- Lane Rose at an on cruiser to turn stopped her ly intended Addis gestion. lane, much its front and continue shoulder Lyon on pass Beshers’s gle across Judg- left- signaled its rear. his than truck Beshers to Beshers’s 17-A. Highway closer video, swerved parking had if Beshers center shopping ing from the into turn hand traffic, he oncoming Rose away from turn right, left subsequent lot and of Addis's the nose run did likely would but Georgia Highway onto Lane upon noted should It approached cruiser. signal turn activate re- cruiser, promptly clearing Addis’s Rose Lane. lane, so he did proper turned oncoming traffic. any encountering without Deputy Brian Perrin of the Stephens pull to edge of the pavement as Besh- County Office, Sheriffs who happened and the officers approached. At one be stopped on Rose point Lane at the while traveling intersec- Highway Cor- tion, poral witnessed apparent Matt Ramey (“Ramey”), collision from who was in driven, a few feet vehicle away. As Addis, Harrison made the radioed dis- patch relay turn onto Rose reasons for pursuit. Lane in.pursuit of He listed Beshers, “reckless driving,” “leaving shouted “Go! Go!” out his scene of an accident” and “possibly, window to assault encourage personal Perrin —a with a vehicle,” motor in that order.7 Har- join friend —to the chase. Perrin contact- rison subsequently that, testified at this his agency ed for permission. Perrin told point, he did not believe that Beshers agency his that he saw collision, but he posed an immediate threat to the safety did not characterize it as a felony assault. any officer or of public. Instead, Perrin reported that the basis for A short time thereafter, pursuit suspicion of driving under passed Whitworth to become the pur- lead influence. The Stephens County Sher- suer. He made a number of attempts to iffs only Office allowed pursuits in cases pass Beshers, but was repeatedly forced to involving forcible felonies. Based on Per- return the southbound lane due to on- rin’s description, his supervisor did not coming or, traffic in at least one believe such a felony had been committed visibility. limited Finally, Harrison was and refused to join allow him to the chase. successful in passing Beshers. As Harri- At a “T” intersection with Georgia High- son pulled alongside and then ahead of way 145, Beshers signaled and left, turned Beshers, Beshers did not attempt to ram heading south.6 While on Highway 145, him or run him off the road.8 Beshers crossed the center line numerous Harrison completed pass of Beshers times pass other cars or to round and pulled back into the southbound lane. curves. Each time so, he did he fully Almost immediately thereafter, Beshers returned the southbound lane before pulled across center stripes, apparent- encountering oncoming Again, vehicles. ly attempting pass Harrison in the the video does not show Beshers driving northbound lane. Harrison immediately erratically or forcing other drivers off the swerved into the northbound lane in front road, although cars continued to slow and of Beshers and applied his brakes.9 Besh- 6. The video that Highway shows 145—or at 8. Harrison subsequently testified that he least the section of it on which pursuit this passed Beshers to be in position a better occurred —is a rural stretch of highway, with warn oncoming traffic hopes and in of dis- no sidewalks- pedestrian traffic, only couraging Beshers from continuing flee, sparse vehicle Corporal traffic. Matt Ramey, but he did not broadcast such a statement who was in the Addis, vehicle driven testi- during pursuit. fied that the area where the crash occurred very "a unpopulated mean, area. I Although 9. the videotape from Whitworth's there's not much traffic. There's many not crystal clear, vehicle is not watching it several people. know, You we went from the middle times in slow motion -has convinced me that it aof municipality, in town, the middle aof is at least likely more than not that Harrison’s out, road, down a two-lane where it becomes lights brake just came on before Beshers hit a little safer situation.” him from event, behind. In any the Whit- worth video does "clearly Ap- contradict” In addition to the use of "possi- the word pellant’s contention on point. such, As bly,” Ramey's tone of voice at arguably least required court is Harrison, to assume that suggested he is not convinced any such as- initiated the first collision be- sault occurred. tween them. for Leaving aside heinous. particularly southbound into the back then swerved moment, fleeing police, the was that he pas- the his just before out lane, straightening exceed- David Beshers line minutes fifteen white the tires touched senger-side illegal- mph, by up to 10 Harrison limit speed ed the pavement. edge the near traffic, ran some southbound into the and out in ly back wove swerved so, cruiser conduct is unde- Though his such did signs. As Harrison lane. Beshers’s hard- ahead you would entirely longer niably dangerous, no or slowed he had who truck, person because either a reasonable find to pressed both). (or alone, accelerated had activities, standing Beshers because such that felt swerved Harrison result, when Indeed, expects a society As death. warranted his rear of lane, right the southbound the offi- law enforcement conduct such front of Besh- left the with collided others, cruiser drivers, among and ambulance cers right, to the truck, Beshers forcing ers’s engaged when conduct shrugs off such Harrison surface. paved the partially off motive, an as to rush such right for the in side passenger the ramming continued hospital. to the injured friend Besh- side of driver’s into the cruiser his this conduct in engaged Beshers But completely truck, Beshers forcing ers’s Given police. the being chased while shoulder. unpaved onto road fact says that the the law predicate, that far so so, moved Harrison doing While as a truck use his to try he did that not. passenger-side his. right to the over The fact matter. not weapon does pavement. left the tires him apprehend trying to were slowly shoulder, Beshers Driving on does crimes minor, nonviolent relatively cruis- of Harrison’s ahead his truck nosed actu- did not that he The fact matter. force efforts Harrison’s Despite er. from, perhaps, anyone ally harm —aside front road, two off the farther him consequence. of no Lyon sideswiping —is re-entered truck of Beshers’s wheels that, shortly before does it matter Nor two front Beshers’s Once surface.10 paved force, had Harrison began utilize hit pavement, on the were wheels posed that Beshers subjective belief no final contact This in the side. again him others.11 to himself danger to slide wheels rear truck’s two caused the in- endangered unquestionably Beshers theAs shoulder. dirt on the in an engaging while bystanders nocent right, around end back came truck’s Un- benefit. societal had no activity that died roll. began to truck Beshers balancing test Fourth der fif- followed, approximately crash immi- and. the “actual applied began first after minutes teen the innocent lives” of threat to the nent chasing him. outweighs conduct Beshers’ posed II. DISCUSSION injury death” serious likelihood “high efforts by Harrison’s posed are facts viewed foregoing When “in- chase, because Beshers terminate one light most public tentionally himself placed his conduct conclude forced Indeed, demonstrated officers pursuing 11. the video clear from It is not against deadly force willingness to use re- trying to Beshers was because occurred roadblock— Addis's collision the form or because Beshers—in road turn significant driving posed end of back -the long forced cruiser before Harrison’s causing nose right, its truck to to others. Beshers's highway. left, onto toward go back danger by unlawfully engaging in ... limit on a deserted highway, the use of reckless, high-speed flight.” Harris, 127 deadly force to end a motor pursuit vehicle S.Ct. at 1778. Harris compels me to con- always is a reasonable seizure. that, clude as a law, matter of practical As a matter, a police officer’s had the right to end the by chase killing qualified immunity to use deadly force in a or, to utilize the language of the Beshers — car chase situation is now virtually unqual- court, Harris Harrison’s attempt to termi- ified. Harris and this opinion allow nate the dangerous high-speed car chase, police officer to use deadly force with con- which threatened the lives of by- innocent stitutional if impunity the fleeing standers, suspect did not violate the Fourth poses any danger to the public. In Amendment, my even though placed it Besh- opinion, humble I ers at believe we risk serious will injury live or death. regret precedent. this In that could If very a balancing well be the test is to any real proper result. It is certainly meaning, conceivable a jury ought to be deciding that a jury could weigh all the evidence whether the posed risk by the fleeing sus- (rather than viewing it in most pect is too minimal, or the suspected crime Beshers) and decide that Har- too minor, to make killing him a reason- rison’s use of deadly justified. force was A way able to halt the Nevertheless, chase. juror could result, reach this based on my reading Harris, that deci- even though Beshers was suspected of sion has been taken away from jury comparatively offenses, minor and even where, here, the fleeing suspect has though we have all witnessed hundreds endangered others. I therefore reluctant- vehicles speeding, passing illegally, and ly concur in the result by reached running signs without causing an acci- majority. dent.

Yet this decision troubles me. Realis-

tically, a suspect fleeing in a car

will inevitably violate some traffic laws. By so, doing he will endanger the lives (as

innocent motorists well as the pursuing

officers).12 And that danger always will

outweigh posed to the by the officer’s of deadly force, be- UNITED STATES STEEL CORPORA cause the suspect is the one who chose to TION, U.S. Mining Steel Company, put everyone else at risk by refusing to LLC, Plaintiffs-Appellants, stop. In words, other danger given no weight. For all of its talk of a test, balancing the Harris Michael ASTRUE,* court J. Commissioner of has, in effect, established a per se rule: Social Security Administration, Unless the chase occurs below speed Defendant-Appellee, * 12. As attested dangerous instrumental- Pursuant to R.App. 43(c), Fed. P. Michael J. doctrine, ity operation a of motor vehicle Astrue is predecessor, substituted for his Jo inherently dangerous Thus, to others. Barnhart, Anne B. as Commissioner of the occasioned fleeing motorist will Social Security Administration. itself arguably create an immediate and sub- potential stantial for harm to the traveling public.

Case Details

Case Name: Beshers v. Harrison

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Aug 14, 2007

Citation: 495 F.3d 1260

Docket Number: 05-17096

Court Abbreviation: 11th Cir.