James Terrell v. Brek Larson

LOKEN, Before LAY, Judge, Chief HEANEY, WOLLMAN, MORRIS ARNOLD, SHEPPARD MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, Circuit Judges, en banc.

LOKEN, Judge. Chief In County Sacramento v. (1998), the Supreme that, Court held “in a high-speed automobile chase aimed suspected apprehending offender .... only purpose cause harm unre- lated to legitimate object will arrest satisfy the arbitrary element of conduct shocking conscience, to the necessary for [substantive] due violation.” three, level assigned priority The call was “that the intent-to- held subsequently We very high priority.” “a all described as applies Lewis harm standard process claims substantive Deputy Sheriffs public officials the conduct based eating dinner duty, working and were on chase automobile high-speed in a engaged from the some ten miles at a substation of- suspected a apprehending aimed call was in As the reported disturbance. the chase fender,” of whether regardless area, Larson radioed patrol assigned their offi- pursuing afforded arguably conditions to the provide back-up they Burch, Helseth time to deliberate. cers later, minute patrol One car. Cir.2001) (en (8th banc), was re- radioed he deputy another denied, 1115, 122 S.Ct. 534 cert. and back-up and Larson sponding as (2002), Feist overruling ad- dispatcher The Longen cancel. could Cir.2000). (8th Simonson, 222 F.3d 455 Larson, cancel,” Larson “you can vised continue,” re- dispatcher the replied, Lar- case, Brek “we’ll Deputy Sheriffs In this you,” and Larson plied, “I covered to Longen, responding and Shawn son later, call, continue.” Moments through peated, “we’ll drove disturbance domestic radioed, “Copy to all for dispatcher and the emergency lights with light red their ad- patrol car] considering, [another with Talena collided activated and siren backing that he’s also.” vising by phone in the intersection. Terrell car Terrell’s and embarked Deputies kin Larson next of died, and and her heirs Street, with vehicle for Jewell patrol this action under U.S.C. brought they the driving. approached As Larson deputies’ reckless alleging that the Crosstown Highway and intersection right to substantive violated her yellow flash- very high speed, Boulevard court The district denied process. was stoplight that the ing lights warned summary judgment for motion defendants’ about Larson slowed to red. and about turn immunity. Larson qualified based on hour, he sped up when then this 40 miles panel per A divided Longen appealed. traf- in the intersection. im- saw no cars qualified the denial of affirmed court red, vehicle patrol and the Larson, limiting fic turned munity to in the intersec- car Terrell’s “high broadsided Helseth to holdings of Lewis and was patrol vehicle impact, At tion. apprehend- pursuits aimed speed police per hour. traveling miles Lar- 60-64 Terrell v. offender.” ing suspected Cir.2004). son, We F.3d Ter- Complaint, Third Amended In their review, pan- vacated the en banc granted alleged that the of kin and next rell’s heirs decision, both now reverse as to el’s the call decision deputies’ deputies. “were vehicle of the operation and their callous, reckless, p.m. conscience-shocking, At 10:05 on.December radio Department’s deliberately indifferent County Sheriff Anoka outrageous call: following transmitted Terrell.” dispatcher of Talena rights judgment, ar- summary wife, for Longen moved [Complainant’s] Jewell St. [ ]— intent is no evidence female, guing at the there year old is twenty-three at least enti- therefore are harm and their three threatening to harm location under Lewis immunity qualified tled to currently locked year old child. She’s have no evi- Conceding they bedroom, and Helseth. weapons. no herself harm, argued, plaintiffs dence of intent complainant that the was unaware She that sum- agreed, court and the district called. has mary judgment improper because and reflective deliberation.” Neal v. St. whether defendants were responding Comm’rs, to an County Louis Bd. Police a disputed issue of fact that Cir.2000). will determine whether deliberate indiffer- In determining requisite level of cul- ence, harm, or intent to is the applicable pability reject we panel standard of fault. majority’s conclusion that the controlling 1. Lewis teaches that the prop force of Lewis is limited to high-speed approach resolving er qual asserted police driving aimed at apprehending a immunity ified defense is “to determine suspected Supreme offender. The Court’s first plaintiff whether the has analysis culpability issue Lewis deprivation all,” of a right constitutional at was framed far broader terms. See right and then to “ask whether the alleg County, 360, Dillon v. Brown 380 F.3d edly implicated clearly established (8th Cir.2004). 363-64 Likening the sud- question.” the time of the events 523 den, difficult decision pursue whether to a 5, U.S. at 841 n. 118 S.Ct. 1708. To estab fleeing suspect to decisions that must be violation, a process substantive due lish riot, made in quelling prison a the Court plaintiffs must show that “the behavior of adopted Eighth the Amendment intent-to- the [deputies egregious, so was] so outra Albers, harm Whitley standard of v. 475 geous, may fairly that it be said to shock 1078, U.S. Lewis, the contemporary conscience.” 523 (1986), 251 explaining: 8, U.S. at 847 n. 118 S.Ct. 1708.1 Because riot, prison facing Like officials variety wide of official may conduct cause police on an occasion calling for fast injury, a court must first determine the obligations action have that tug tend to culpability level of plaintiff 1983 against each duty other. Their is to prove must to. the defen establish order, restore and maintain lawful while may dant’s be conscience shock conduct not exacerbating disorder more than ing. negligence Mere is never sufficient. necessary to jobs. do their They are Proof of usually intent to harm is required, supposed decisively to act cases, and to show but in proof some of deliberate indif moment, restraint ference, at the same and their an intermediate level of culpabili ty, haste, decisions have to be satisfy will made un- this substantive process due Lewis, pressure, der 848-49, and'frequently threshold. 118 luxury S.Ct. of a second 1708. The chance.... A deliberate indifference officer sensibly employed deciding give “is whether to only chase when actual deliberation must balance on practical.” is one hand the need to 1708; 523 stop suspect U.S. see and show that flight Wilson from v. County, 946, Lawrence way freedom, and, 260 the law is no F.3d 957 (8th Cir.2001). By contrast, other, the intent-to- the high-speed threat to all harm standard clearly most applies “in those within stopping range, they rapidly fluid, evolving, dangerous and suspects, drivers, situ passenger, other ations which preclude luxury of calm bystanders.

1. To violate substantive process, the con- liberty justice such that neither nor duct of an executive official must be con- exist if were sacrificed.” . Moran v. shocking Clarke, science and (8th Cir.2002) (en must violate "one or 296 F.3d rights banc) J., more fundamental deeply (Bye, are concurring root- writing and for a tradition, ed in history issue) Nation's majority omitted). (quotation on this implicit concept in the liberty, of ordered inquiry The latter is not an issue in this case. (9th Cir.1998) (quelling 159 F.3d (quotation Similarly, every omitted). progress). decid- gunfight officers Similarly, police high-speed to an consider a circuit to ing whether make call must to Lewis concluded prior disturbance situation domestic protect subject how to substan- decision best are not quick police officers Those lawful order. maintain reck- public liability tive due quick- at the scene must arrive negligent driving grossly less or children, violence, protect ly quell suspect other than sponse emergencies respond- injured, so anyone who is assist Rio Arriba Apodaca v. pursuits. require the invariably afar will ing from County Dep’t, 905 Sheriff’s driving as the high-speed type same Cir.1990) (responding si- 1446-47 Domestic dis- suspect. fleeing of a chase alarm); Taylor, burglar lent Cannon and un- “notoriously volatile are turbances Cir.1986) (distur- 782 F.2d County, Rice Elwood v. predictable,” Salter, call); bance Walton (Minn.1988), so num- N.W.2d (5th Cir.1976) (armed robbery to defuse officers needed ber of call). in advance. Like rarely known situation reasons, quick made a decision hold that the officer who For these we

the police officers applies in give chase standard of Lewis intent-to-harm emergency call do type to this sponding high- in engage decision to to an officer’s having ... time to luxury not have “the types of driving response to other speed upon the judgments, make unhurried in which and to the manner emergencies, reflection, un- largely repeated chance for in proceeding car is then driven police the obli- competing complicated by pulls the Slu emergency. to the scene 853, 118 S.Ct. 1708. 523 U.S. gations.” 1178, 1182-83 Hoff, 346 F.3d sarchuk v. ,d - U.S.-, (8th Cir.2003), Thus, flies cert. majority’s decision panel the denie (2004); 2018, analysis and 158 L.Ed.2d 492 face of the Lewis 124 S.Ct. Helseth, officers from de- police to deter F.3d at 871. threatens calls, emergency ciding defen court denied 2. The district of harm to thereby increasing the risk summary judgment on for dants’ motion crises. See caught up in these citizens genu that a concluding ground, narrower Helseth, for at 871. No doubt 258 F.3d to whether the fact exists as ine issue of reason, circuit knowledge every to our responding Longen were call Larson and Lewis applied has to consider the issue emer reasonably regarded as an to “was myriad “those standard to intent-to-harm the court urged, Terrell gency.” As involving law enforcement situations objective to resolve this test adopted emergen- deployed government workers indiffer issue, the deliberate ruling Barela, 146 Radecki v. cy situations.” if apply standard will culpability ence Cir.1998) (unantic- Longen were that Larson and jury finds firearm); officer’s ipated struggle emergency. This to a true responding 948, Simpson, 328 F.3d accord Carter sure, in decid of law. To be was an error (7th Cir.2003) (back-up squad car re- under force claims ing excessive reported call of a sponding Amendment, question “the is Birchwell, Fourth death); Claybrook v. ‘objective actions are Cir.2000) officers’ whether the dan (reacting to 359-61 the facts light of man); ly reasonable’ More actions of an armed gerous them, confronting without circumstances Dept., Metro. Police Vegas v. Las land regard underlying intent or During moti- banc argument, en Connor, question vation.” was raised for the first time Graham whether Larson believed he was 104 L.Ed.2d 443 (1989). responding emergency. to an It was not But substantive due liabil- ed that department’s internal ity, Eighth liability, like Amendment turns investigators reported affairs that Larson intent, government on the official’s evil said one reason he decided not to cancel recklessness, if either criminal the deliber- was that give Deputy applies, ate indifference standard see rookie, Longen, good experience “a some Brennan, 825, 836-37, Farmer v. 511 U.S. handling that call.” type of Plaintiffs did (1994), 128 L.Edüd 811 or court, not raise this issue in the district intent-to-harm, if the standard of Lewis appeal. Indeed, they argued to the Whitley applies. v. Albers Because district court that Larson’s belief that an process liability ground- substantive due emergency existed was “not the issue and government subjective ed on a official’s not relevant.” The same internal affairs intent, and because the intent-to-harm report concluded: “based on the factors applies “when unforeseen circum- Larson, by Deputy stated he still believed stances demand an judg- officer’s instant this to be a high-priority, threatening-type ment” and “decisions have to be made call and because of that continued haste, pressure, under frequently emergency.” Larson submitted an affida chance,” luxury of a second vit to that early effect in the summary Leivis, we judgment process, plain and counsel for conclude that this issue turns on whether tiffs did not challenge the averral in Lar subjectively believed that later, lengthy son’s deposition. On this they were to an emergency.2 record, it undisputed that Larson and Longen they believed were responding to appeal, plaintiffs argue, On they as did Therefore, an emergency. the intent-to- court, in the district jury that a could find harm applies standard as a matter of law. that reasonably the situation was not garded emergency by as an Larson and 4. Alternatively, we conclude that Longen they pro- because “volunteered” to Deputies Longen Larson and are entitled vide back-up persisted and then in re- summary judgment even under the de sponding being after they advised were liberate indifference of standard fault “covered” and could “cancel.” But wheth- adopted by panel majority and the er Larson and reasonably could district prevail court. To on their substan have they decided that were not needed as process claim, tive due plaintiffs must additional back-up is irrelevant. Under prove, only that deputies’ behavior Lewis, the intent-to-harm culpability stan- indifference, reflected deliberate but also applies they dard if they believed that it was egregious, “so so outrageous, responding to an emergency call. may fairly be said to shock the 2. We need not consider perspective whether a different From the of a officer decid- apply rule should if an official's claim of ing respond, dispatch whether to without perceived preposterous is so as to is, question emergency, described an Here, that, reflect bad undisputed faith. it is needing presence situation of law enforce- accident, prior to the Longen only Larson and arrive, rapidly they ment officers as as could dispatch heard the initial young that a mother even if that entailed high- the risks inherent in had locked herself in a bedroom and was speed driving. threatening three-year-old to harm her child. Lewis, tort law to Amendment is not font of be conscience.” contemporary systems may Not all whatever superimposed 118 S.Ct. 1708. n. conduct is con- deliberately already by indifferent administered the States.” sense in the constitutional shocking (quotation science 118 S.Ct. Leiuis, omitted). 523 U.S. term. See (“some acts official 118 S.Ct. 1708 The order of the district court is re- actionable”) add- (emphasis range may be versed, the case is remanded with ed). conscience-shocking Because plaintiffs’ to dismiss 1983 sub- directions to limit substantive is intended claims. process stantive due an of law liability, it is issue process fact for the question not a of judge, for the LAY, Judge, Circuit with whom Harker City v. jury. See Collins of BYE, Judges, join, HEANEY and Circuit 115, 126, 112 S.Ct. 503 U.S. Heights, dissenting. (1992) (“arbitrary govern- the con that must ‘shock ment action Today’s giving decision has the effect of Mon judges”); City of federal science’ 26-requalifiedimmunity when police officers Monterey, Dunes at terey v. Del Monte deliberate indifference demonstrate Ltd., 526 U.S. safety general public. A to the (1999) J., (Souter, concurring L.Ed.2d 882 may by- kill police officer now innocent (“Substan- dissenting part) part through criminally standers reckless driv- course, are, of claims tive due law, police ing blatantly violates state question for the routinely reserved accepted profes- department regulations, 853-55, court,” citing conduct, and the sional standards 1708); Squadrito, Armstrong community’s play traditional ideas of fair (7th Cir.1998); Mason subjec- long as the officer decency so (D.Kan. Stock, F.Supp. unreasonably, tively, though believed 1997). majority’s hold- emergency existed. majori- panel court and the The district high-speed pursuit ing extends Lewis’s de- to consider whether ty failing erred purpose protect- intended rule from its shocking. was conscience fendants’ conduct split-second forced to make ing officers committed the decision While rule that per in the to a se decisions field high-speed after have officers even now shields safe- always highway entails some risk to to deliberate opportunity had an actual type to this of ty, responding 42 Believing that station. assigned territory officer’s within remedy gives § 1983 citizens U.S.C. criminal recklessness not reflect the does power that of executive egregious abuses to substantive due prerequisite is a constitutional citizens of their deprive indif- liability under the deliberate process life, we dissent. right Traffic accidents of this ference standard. in this interlocu- Initially, questions two not shock the tragic nature are but do immunity qualified need tory appeal of That modern-day conscience. First, suffer a did Terrell be confronted. regula- police department Larson violated right, and sec- of a constitutional violation the intersec- through in proceeding tions has, ond, right was that assuming that she of may raise an issue high speed tion at of the colli- at the time clearly established law, it is not of substantive state tort but Lewis, County Sacramento sion. See Supreme process significance. As of 1708, 5, 833, 842, 140 Lewis, n. U.S. in “the Fourteenth 523 reiterated Court 982 (1998). injure,” 1043 As with review of trum is “conduct intended to

L.Ed.2d which summary judgment generally, motions for generally will “rise to the conscience- Id.4, determining qualified in whether or not shocking level.” In between these two immunity given exists in a we resolve range extremes is a middle of culpability disputes all factual favor of the non- known as “deliberate indifference.” Id. Pelletier, moving party. See Behrens v. question falling The of whether conduct 834, 116 range within this middle reaches point (1996).3 L.Ed.2d 773 With the factual is- conscience-shocking depends of on an “ex Terrell, in favor sues resolved of we then analysis act of circumstances” in a given purely legal question ask the of whether 850, case. Id. at In S.Ct. 1708. situa clearly Larson’s conduct violated Terrell’s by tions where actual deliberation an offi rights. established constitutional practical, cer is conduct that is deliberate Wenatchee, City Cunningham v. ly may shock the conscience. indifferent Cir.2003); F.3d see also Id. at S.Ct. 1708. Beach, Bingham City Manhattan Burch, In Helseth v. 258 F.3d 867 (9th Cir.2003). Cir.2001), this court held “that the intent- I. ConstitutionaT Violation. to-harm applies standard of Lewis to all § process 1983 substantive due claims a legally cognizable To establish sub- public based the conduct of officials § stantive due claim under engaged high-speed automobile chase identify Terrell must an arbitrary abuse apprehending aimed at a suspected offend- power executive that “shocks the con- majority er.” Id. 871. The reasons Lewis, science.” compel Lewis and Helseth application Supreme recog- 1708. As Court has However, of the intent-to-harm standard. nized, “the measure of what is conscience Lewis and Helseth did not a per announce shocking yard no calibrated ....” stick se rule that the intent-to-harm standard Id. at 118 S.Ct. 1708. What shocks applied should be whenever an officer vol- in one may conscience situation untarily embarks on a high-speed response shock the conscience another. Id. at emergency. the absence of an At To the 118 S.Ct. 1708. one end of the contrary, culpability holdings spectrum negligence, is mere Lewis and Hel- which is seth specifically never sufficient to establish a at high- directed constitutional violation. speed police pursuits Id. at apprehend- aimed at S.Ct. 1708. At spec- the other end of the ing suspected offender. majority Supreme creates an unknown rule As the Court observed in requires plaintiff, law that at the story "It is a different when a citizen suffers summary judgment stage, to establish the offi- seriously physical or is injury threatened with subjective cer’s regarding state of mind the police due to a officer's intentional misuse of emergency. agree existence of an While we vehicle.” his 854 n. majority plaintiff with the that a must Webb, (citing Checki v. 785 F.2d establish an “evil intent” in the form of crimi- (5th Cir.1986)). County The Anoka Sher- nal recklessness under the deliberate indiffer- report iff's Office Internal Affairs establishes ence liability, standard to establish ultimate that Larson’s use of his vehicle violated state part company we majority with the when it department regulations. law and There judicial states that review of the facts sur- should be little doubt that Larson intentional- rounding the case must start and end with an ly misused his vehicle here. inquiry subjective into the officer's state of majority mind. We note the no authori- cites ty approach. novel this place All of the communications took light viewed the of this

The facts Terrell, a situa- present Longen left favorable before Larson the. most a deputies were “afforded the deputies tion where station. Before the even reached vari- to deliberate opportunity vehicle, reasonable patrol knew at least two electing course prior alternatives ous already deputies other were en route ” County Neal v. St. Louis action .... provide backup primary respond- for the Comm’rs, 217 F.3d Bd. Police . route, ers. en Larson and While (8th Cir.2000).5 and Lon- Deputies Larson deputy that was ahead of saw another eating din- at the station gen were Yet, way on his to the call. them they heard doing paperwork when ner give Longen training wanted to as to how Initially, transmission. dispatcher’s the respond high-priority in a call. In our described a situation that the transmission view, support a these facts conclusion attention, and Lar- required immediate had time to deliberate wheth- deputies provide initial that he would response son’s necessary er was rush towards However, one backup appropriate. reaching ninety-five miles speeds scene at response and before minute after Larson’s hour, sixty a red per going through prepared to leave the sixty-five per miles hour on winter substation, deputy another' said he would truck Lar- night pickup a full-size could “can- and told Larson that he assist son was for the first time. that Larson dispatcher repeated The cel.” only support do these facts a conclu- Not Larson in- response, cancel his but could practical, sion that actual deliberation was continue dispatcher he would formed Deputy Larson confirm statements dispatcher again told to the call. actually According that he did deliberate. Larson, you,” “I covered but Larson Inter- County to the Anoka Sheriffs Office continue, primarily to peated that he would Unit, Investigation nal Affairs officer, experience Longen, a trainee give he decided to to the thereafter, Larson said Shortly call.6 high-priority in a rookie, good some give Longen, call “to would also yet deputy another said he handling type of a call.” experience assistance. provide ap- County, deliberate indifference standard did Wilson v. Lawrence See also (8th Cir.2001) (holding ap- application ply, approved 956-57 of the the court indifference/subjec- plication deliberate in situations where officers had standard appropriate standard was' deliberate, tive recklessness we subse- opportunity to have officers, allegedly who coerced con- where like quently applied the in cases to inves- from the defendant and failed fession Wilson. leads, deliberate vari- tigate other had time to selecting prior to a course of ous alternatives on , majority discounts this information 6. The Nebraska, Arkansas, action); Entergy, Inc. v. ground the dis that it was not raised in Cir.2001) (recognizing 241 F.3d by on and not asserted Terrell trict court may conduct of state officials shock that the majority taking position, the appeal. In taken conscience if their actions were this statement was in overlooks the fact that party's pro- indifference to a with deliberate and that this court can affirm the record op- rights where the "officials had tected King v. basis contained in the record. alternatives"); portunity to consider various (8th Cir.2003); Fletcher, 319 F.3d Brunswick, City Ewolski v. (8th Cir. Spain, 209 F.3d 716 Wilson (6th Cir.2002) (applying the deliberate Inc., Lhaco, 2000); Hall v. to officers’ con- indifference standard Moulder, Cir.1998); White v. pre- during the facts duct a standoff because (8th Cir.1994). 28 U.S.C. See also actual deliberation sented a situation where (2004). § 2106 Although and practical). under the facts was held that the circumstances of Neal the court Having Af- concluded that deliberate indif- Internal County Sheriffs Office Anoka to be #2001-005, appropriate ference is standard No- dated Investigation fairs qualified applied resolving the issue of majority’s The em- at 7. vember immunity this we next consider high- between phasis on the similarities sufficient whether the facts this case are response is high-speed and speed pursuit that acted to show Larson with deliberate an examination compels misplaced. Lewis in- regard, indifference. In this Lewis deliberate, to opportunity officer’s that “an exact anal- apply structs we must strange find not his mode of travel. We totality ysis” given of “the of facts announced to- that under the rule indeed (citation case.” Id. at indifference standard day, the deliberate omitted). The deliberate indifference an officer has the longer applies no when that the defendant know requires actually to does opportunity deliberate risk of seri- disregard of and substantial deliberate. Brennan, 511 ous harm. See Farmer v. significant there are distinc- We submit 836-37, U.S. high-speed response

tions between (1994). L.Ed.2d 811 We consider the con- pursuit such as suspect case and cases .Longen separately. duct of Larson and First, while officers Lewis and Helseth. respect Deputy Longen, to Plain- With suspected generally offenders pursuing allege Longen failed to intervene tiffs themselves, acting in their offi- find when prevent the crash that killed Ms. Ter- duties, in cial situations which are thrust however, say, Deputy rell. We cannot them, see Longen’s conduct in this case shows delib- conscious, 1708, here Larson made a Deputy Longen erate indifference. was a voluntary respond decision to the do- probationary officer the time of the mestic disturbance call even after he was merely riding along crash was with deputies that other were re- informed Deputy Larson. Terrell has no Second, sponding and he could cancel. showing Longen facts had author- suspect pursuits require while instantane- ity to overrule Larson’s decision to re- reactions, on-the-spot ous decisions and see call spond to the or to order Larson to id., Longen eating were dinner Larson they stop approached the red as they Rather, when doing paperwork received suggest the intersection. the facts opportunity Longen accompany the call and were afforded the had no choice but to Thus, responded Larson as he to the call. response leaving before deliberate allegations we conclude Terrell’s concern- Finally, station. in- officers are, law, Longen ing Deputy as a matter of suspect pursuits may required volved insufficient to show that his actions in ac- losing to violate traffic laws or risk companying Larson were taken with delib- contrast, In suspect. Larson and rights erate indifference to the of Ms. Ter- danger losing suspect were not in rell. leaving primary officers this case adequate backup, as Larson’s are another actions deputies way aware other were on their Despite knowledge matter. that at least distinctions, In the scene. view of these way two other were on their lack exigent we conclude the obvious cancel, provide backup and that he could us that circumstances convince the intent- voluntarily Larson decided to inappropriate to-harm standard is in non- night. the call. It a December slushy, and emergency response situations. roads were wet and Lar- to the level of conscience-shocking. an unfamiliar vehicle. As There- intersection, fore, recog- he approached we would hold that the Plaintiffs have son light was about to the traffic nized a alleged constitutional violation of Ms. red, but, stopping, instead of Larson turn process right Terrell’s substantive due at an through the intersection esti- sped arbitrary deprivation be free of of her life. sixty sixty-four miles speed mated training deputy as a

per hour. Given his Clearly Right. II. Established sheriff, certainly Larson was aware of the enjoy qualified Larson would safety that arises when a danger public immunity if pro- Terrell’s substantive due a traffic police officer decides to violate right clearly was not cess established as of report Internal Affairs conclud- light. The 29, 2000, December the time of the colli- regulat- ed that Larson violated state law sion. See Wilson v. Lawrence County, 260 ing engaged emergency driving, officers Cir.2001). In order for regulations, and drove department violated established, right clearly to be “[t]he totally with his in a manner inconsistent sufficiently contours of the must right be alleged facts training. We believe the as clear that a official un- reasonable disregarded show that Larson the substan- doing derstand what he- is violates running tial of harm attendant risk that right.” Creighton, Anderson v. given the fact that light, especially red 635, 640, 107 S.Ct. sped up as he entered the intersec- (1987). However, this does not mean proceeding cautiously tion instead of at a precise that the conduct at issue must have view, much rate of In our slower speed.5 by been addressed a court for an officer facts of this taken in the reasonably believe his actions are unlawful. Terrell, light most favorable to are suffi- Wilson, “Rather, See 260 F.3d at 951. deliberately cient to show that Larson was only apparent pre-existing need be from indifferent to a substantial risk of harm. Id.; law that the conduct is see unlawful.” importance Context is of vital Anderson, also 483 U.S. analysis. considered con- process What is science-shocking setting may in one fall There can be no doubt that Ms. Terrell short of that standard another context. right to . had a substantive due Lewis, 118 S.Ct 1708. See arbitrary deprivation from the state’s free analysis Lewis mandates an exact n nu- Supreme of her life. Court cases too totality given of facts in a “before case recognized right. to fist have merous power abuse of is condemned as conscience shocking.” applied Id. have such an We plaintiffs substantive due that, (recognizing

analysis here and conclude when life). Likewise, of De- process right to as emergency officer not with an faced cember a red through drives his vehicle for notice that could be held liable sixty-four per miles hour on dark and driving. As of the snowy night winter and kills an innocent reckless date collision, year-old Supreme rise Court’s decision girl, seventeen such actions 169.03, lights. § playing We red Minn.Stat. note that Minnesota Statutes 169.03 requires emergency training drivers of vehicles who received con- subd. 2. Larson had emergency to slow are call cerning requirements, these but nonetheless necessary safety proceed down as through proceeded the intersection at an ex- cautiously through lights signs stop red speed. rate of cessive sounding dis- after siren and HEANEY, Judge, Circuit with whom that the deliber- in Lewis had established BYE, Judges, join, LAY apply would in Circuit ate indifference standard dissent, Lay’s writing in suspect pursuits joining Judge than other situations practical. separately. is See where actual deliberation 851, 118 1708. Lewis S.Ct. join Lay’s I Judge I dissent. write that a officer further established it separately suggested to note that was indifference could be acting with deliberate that if Talena Terrell had been killed in conduct. See id. 849- held for his liable Nebraska, manner above-detailed Thus, conclude the we 118 S.Ct. her estate could recover under the state’s of the collision law in at the time effect statutory from implication scheme. Accordingly, we clearly established. is that if states would this comment follow not entitled to would hold that Larson was example, Nebraska’s would not be neces- im- judgment qualified based on summary sary rely on constitutional claims to munity. obtain relief innocent victims of vehicu- such lar accidents as the one this case. III. Conclusion. statute, A review Nebraska howev- appeal merely In are asked to this we er, applies only reveals that it to cases of immunity. ... pass upon qualified “[W]e pursuit, vehicular which is defined as fol- questions pass upon[ do not whether ] lows: may be held [Larson] or to what extent section, purposes For of this vehicular charged, proved. for the acts if responsible pursuit attempt by means an active Nothing in our decision forecloses de operating law enforcement officer a mo- ” qualified immunity .... fense other than apprehend tor or more vehicle one Pelzer, 730, 746, 122

Hope v. S.Ct. vehicle, occupants of another motor (2002).6 L.Ed.2d 666 fleeing when the driver of the vehicle is would hold that Larson was We attempt or should aware of such qualified immunity, entitled resisting apprehension by maintaining would affirm the district court’s denial of increasing speed, ignoring or his or her summary judgment Larson’s motion for officer, attempting or to elude the However, respect. we would reverse speeds officer while in excess the district court’s denial of the motion for proper of those reasonable and under summary judgment respect Deputy with the conditions. Longen and remand the case with di- 13-911(5). Neb.Rev.Stat. the Plaintiffs’

rections dismiss substan- course,, against Deputy tive claims Of the accident this case did chase; Longen. during not occur a vehicle both the issue, Although we affirm the district limited this court must view all facts on qualified record, not, immunity, court’s denial of we dispute whether in in the grounds. would do so on different This inter- plaintiff. Hope most favorable to the locutory appeal is allowed under Mitchell v. Pelzer, 536 U.S. 733 n. 122 S.Ct. 511, 525, Forsyth, 477 U.S. (2002). 153 L.Ed.2d 666 If this case 411(1985). qualified L.Ed.2d The issue of trial, jury were allowed to advance to law, immunity question is a not one of fact. legal ruling would not be informed of our Katz, 194, 202, See Saucier v. 533 U.S. immunity, jury qualified and the would be (2001); 150 L.Ed.2d 272 Behrens findings instructed and make its of fact Pelletier, regarding emergency. the existence of an (1996). passing 133 L.Ed.2d 773 In on this Judge Lay’s accept dissent majority Larson was happened while a call. I have found no

responding to Nebraska, Minnesota,

statute in circuit that would

other state our allow recovery commensurate statutory

for a family type to which Terrell’s

with Lay’s join Judge I thus dis-

entitled.

sent, and note that our court separately plaintiffs’

has restricted recoveries these beyond

situations the boundaries state

compensatory product statutes. The is to the families of holding

such leave victims, who have died in acci-

innocent

dents such as the one responsi-

recourse toward those who are

ble. America,

UNITED STATES Appellant,

Plaintiff — Ray GARDNER,

Linda Defendant—

Appellee.

No. 03-3964. Appeals,

United States Court

Eighth Circuit. Sept. 2004.

Submitted:

Filed: Feb.

Rehearing Rehearing En Banc

Denied March

Case Details

Case Name: James Terrell v. Brek Larson

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 4, 2005

Citation: 396 F.3d 975

Docket Number: 03-1293

Court Abbreviation: 8th Cir.