Elaine COLE; Christina Elaine Cole; Carlie Deigh Cole, by
and through next friend Elaine Cole; Candie Leigh
Cole, by and through next friend Elaine
Cole, Appellees,
v.
C.E. BONE, Trooper; Nathan K. Brown, Trooper; F.T.
Martinez, Jr., Trooper; Royal F. Messick, Trooper; Randall
R. Rice, Trooper; Gilbert L. Rodenburg, Trooper; Jeffrey
L. Smith, Trooper; D.S. Stewart, Trooper; Randall S.
Beydler, Corporal; D.E. Holt, Corporal; F.M. Mills,
Lieutenant; P.C. Spire, Sargeant; C.E. Fisher, Colonel;
John H. Ford, Colonel; E.F. Christman, Major; R.G. Biele,
Captain; G.P. Corbin, Captain, Appellants.
No. 92-2245.
United States Court of Appeals,
Eighth Circuit.
Submitted Jan. 14, 1993.
Decided May 17, 1993.
Rehearing and Rehearing En Banc Denied July 12, 1993.
*
Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, MO argued (Elizabeth L. Ziegler, on the brief), for appellants.
Justine E. Del Muro, Kansas City, MO, argued (Dennis E. Egan, on the brief), for appellees.
Before WOLLMAN and BEAM, Circuit Judges, and BOGUE,* Senior District Judge.
WOLLMAN, Circuit Judge.
The defendants appeal from the district court's denial of their motion for summary judgment in this action brought under 42 U.S.C. § 1983 against seventeen members of the Missоuri State Highway Patrol. We reverse and remand.
I.
This case arises from a high speed pursuit on the east-bound lane of Interstate 70 that ended with the death of David Cole. Around noon on July 4, 1988, David Cole and his brother, Todd, were on their way to Kentucky in an eighteen-wheel tractor-trailer unit on their return trip from New Mexico. For some unknown reason, David Cole drove the truck аt a high speed through a toll booth in Bonner Springs, Kansas, without stopping to pay the toll. When a Kansas state trooper began pursuing the truck, David refused to stop. Todd pleaded with David to pull over, but David responded that he had the situation under control and began driving even faster. As the truck approached Kansas City, Missouri, and the traffic became heavier, David Cole continued to drive recklessly. Kansas City police officers began pursuing the truck once it crossed the state line and entered the city.
Several Missouri State Highway Patrolmen became involved in the pursuit east of Kansas City, about twenty miles into Missouri. These patrolmen had learned of the fleeing truck over their police radios. They had rеceived a report that the truck, while being pursued by Kansas City police officers, had travelled through Kansas City at speeds exceeding ninety miles per hour and had passed traffic on both shoulders of Interstate 70. The report also said that the truck had attempted to ram several police cars.
Troopers Rice and Martinez, in separatе vehicles, entered Interstate 70 in front of the truck; Trooper Messick and Corporal Holt, also in separate cars, were following the truck. Rice, who was in the left lane, and Martinez, who was in the right lane, first attempted to execute a "rolling roadblock"; that is, they attempted to slow their vehicles gradually to force the truck to also slow down and eventually stop. This procedure failed, however. According to the troopers, whenever they slowed their vehicles, the truck would accelerate rather than slow down.
After the rolling roadblock had failed, Trooper Messick attempted to disable the truck by firing his shotgun into the trailer's wheels. Although Messick succeeded in flattening one trailer tire, the truck сontinued to speed along on its remaining tires. Messick was unable to fire any more shots at the trailer's tires because every time he attempted to pull alongside the trailer, Cole would observe Messick in the truck's side-view mirror and swerve towards Messick's patrol car.
Corporal Holt then ordered that a stationary roadblock be set up at the forty-four-mile marker of Interstate 70. Troopers Brown, Smith, and Rodenburg arranged their patrol cars in the passing lane of the interstate so as to funnel the truck into a single lane. This arrangement left an escape route for the truck in case Cole decided to run the roadblock--which he did. Although Cole could see the roadblock from one-half mile away, he did not slow down. As the truck sped past the roadblock, the troopers fired their shotguns at the tractor's tires and radiator. Although a tire on one of the tractor's two rear axles was blown out, the truck continued speeding down the highway.
Throughout the pursuit, Troopers Rice and Martinez remained in front of the truck, which continued to travel at speeds exceeding ninety miles per hour. Because the holiday traffic on the interstate remained congested, the troopers were constantly attempting to remove civilian traffic from the truck's pathway, sometimes by forcing motorists to drive off the roadway onto the shoulder and median by use of the red lights, sirens, and the maneuvering of the patrol cars. The two troopers used twо methods to slow the truck and prevent it from hitting their vehicles and the vehicles of civilians. Rice was able to slow the truck temporarily when it approached traffic by placing his shotgun on the roof of his patrol car so that Cole could see it. Rice displayed his shotgun approximately twenty times in an attempt to prevent the truck from hitting motorists. Trooper Martinez slowed the truck and attempted to disable it by firing several shots at it. Rice stated that without these tactics the truck would have struck the officers' patrol cars as well as civilian vehicles. He stated further that, as it was, Cole forced more than one hundred cars off the road or out of the truck's way and endangered the lives of many other motorists during thе pursuit.
After all these attempted means had failed, Rice decided to use deadly force based on Cole's demonstrated lack of concern for other travellers and for the officers themselves. At the fifty-mile marker, Rice observed that the road was momentarily clear of civilian traffic. He radioed the other officers that he was going to shоot at the truck. To get an unobstructed shot at the truck, he first shot out the rear window of his patrol car with his shotgun. He then fired two rounds from his revolver at the truck, attempting to disable its engine. The second shot hit David Cole in the forehead.
Todd Cole, who had been in the truck's sleeper compartment and thus hidden from the troopers' view, then brought the truck to a stop. David Cоle was transported to a Kansas City hospital, where he died from the gunshot wound.
David Cole's wife and children brought this section 1983 action, alleging various violations of David Cole's constitutional rights. They also filed a pendent state law claim for wrongful death. They alleged that Troopers Bone, Brown, Martinez, Messick, Rice, Rodenburg, Smith, and Stewart; Corporals Beydler and Hоlt; and Sergeant Spire were liable for their roles in the pursuit. Additionally, plaintiffs alleged that Corporal Beydler, Corporal Holt, Sergeant Spire, Lieutenant Mills, Colonel Fisher, Colonel Ford, Major Christman, Captain Bierle, and Captain Corbin were liable as supervisors of the troopers involved in the pursuit. Plaintiffs sued all defendants individually and in their official capаcities.
Following some discovery, defendants moved for summary judgment, asserting that they were entitled to qualified immunity. The district court denied the motion, and defendants subsequently filed this interlocutory appeal pursuant to Mitchell v. Forsyth,
II.
In reviewing a denial of summary judgment, we apply the same standard as that applied by the district court. See, e.g., Meester v. IASD Health Servs. Corp.,
Government officials performing discretionary functions are shielded from liability for civil damages by qualified immunity as long as their "conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald,
Following Siegert's analytical structure, we first examine whether plaintiffs have alleged a violation of a clearly established constitutional right. Although plaintiffs assert a variety of constitutional violations in their complaint, the gravamen of their action is that the officers involved in the high speed pursuit unreasonably seized David Cole in violation of the Fourth Amendment. All claims that law enforcement officials used excessive force--deadly or not--in the course of making an arrest or other "seizure" of a free citizen are properly analyzed under the Fourth Amendment. Graham v. Connor,
In analyzing plaintiffs' unreasonable seizure claim, we begin by identifying the "seizure." Plaintiffs argue that David Cole was seized during the pursuit when the troopers attempted the rolling roadblock and the stationary roadblock. Defendants, on the other hаnd, argue that Cole was not seized until he was struck by the shot from Trooper Rice's revolver.
The question whether a seizure occurred is one of law that we determine de novo. United States v. McKines,
In California v. Hodari D., the Supreme Court held that a seizure occurs only when the pursued citizen is physically touched by the police or when he submits to a show of authority by the police. --- U.S. ----, ----,
In view of the holding in Hodari D., we hold that Cole was not seized until he was struck by the shot from Trooper Rice's revolver. Cf. Garner,
The Fourth Amendment prohibits unreasonable seizures, not unreasonable or ill-advised conduct in general. Carter v. Buscher,
Having held that Trooper Rice's shooting of Cole constituted a seizure under the Fourth Amendment, we now consider, viewing the record in the light most favorable to plaintiffs, whether plaintiffs have alleged facts sufficient to establish that the seizure violated the Fourth Amendment. In Tennessee v. Garner, the Court defined the circumstances in which an officer may reasonably employ deadly force:
Where the officer has probable cause to believe that the suspеct poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction of serious physicаl harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
In analyzing the reasonableness of Trooper Rice's decision to use deadly force, we examine the information that Rice possessed at the time of his decision. The " 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham,
We hold that Trooper Rice's decision to use deadly force to disable the truck was not objectively unreasonable. He had probable cause to believe that the truck posed an imminent threat of serious physical harm to innocent motorists as well as to the officers themselves. Rice had seen the truck force several motorists off the roаd and threaten the safety of many others. He could reasonably have believed that the truck would continue to threaten the lives of travellers as it continued speeding down the crowded interstate highway. He knew that the truck had been careening through traffic for at least fifty miles and that it showed no signs of stopping. He knew further that all other attempted meаns to stop the truck--the rolling roadblock, the stationary roadblock, the shots at its tires and radiator--had been unsuccessful.
Moreover, Rice had probable cause to believe that Cole had committed a crime. He had received a radio report that the truck had attempted to force several police cars off the road in Kansas City. Additionally, he believed that Cole had attempted to ram his and Trooper Martinez's vehicles. Attempting to strike police officers with an automobile constitutes first degree assault under Missouri law. See, e.g., State v. McClain,
The district court seemingly believed that Rice's conduct was legally unreasonable because it was not authorized under the policies of the Missouri Highway Patrol. We need not determine whether Trooper Rice violated Missouri Highway Patrol policy, however, for under section 1983 the issue is whether the government offiсial violated the Constitution or federal law, not whether he violated the policies of a state agency. Conduct by a government official that violates some state statutory or administrative provision is not necessarily constitutionally unreasonable. Davis v. Scherer,
It could be argued, of course, that Trooper Rice's decision to use deadly force might not have been the most prudent course of action; other courses of action, such as another stationary roadblock, might conceivably have been available. The Constitution, however, requires only that the seizure be objectively reasonable, not that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight vision. Graham,
Because we have found that Rice's seizure of David Cole was constitutionally reasonable as a matter of law, plaintiffs have failed to assert a constitutional violation against Rice. Accordingly, it is thus unnecessary for us to reach Rice's contention that the district court erred in denying his claim of qualified immunity. Krueger,
Last, we consider whether those members of the Missouri Highway Patrol sued as supervisors should remain in the lawsuit. Plaintiffs argue that these defendants are liable under section 1983 becаuse they failed to adequately train and supervise the officers involved in the pursuit on the use of deadly force.
Government officials may be held liable for constitutional wrongs caused by their failure to train or supervise subordinates adequately. See, e.g., Boswell v. Sherburne County,
The district court's order denying the defendant's motion for summary judgment on qualified immunity grounds is reversed. The case is remanded with directions that summary judgment be entered in favor of all defendants. Whether the pendent state law wrongful death claim should proceed to trial in federal court under the district court's supplemental jurisdiction is a question for the district court to resolve in the first instance. 28 U.S.C. § 1367(c)(3). Cf. Rosado v. Wyman,