Kenneth J. Haugen v. Rochelle Brosseau, Puyallup Police Department the City of Puyallup

declarations, in mere availability discussed an en- sertion of third- customs section of the Service Guide tirely party shipper different insurance “shows that hardly a provisions and from the insurance opportunity purchase had a fair greater limitation of inter- commonly understood point. Maj. liability” Op. misses the See carriers, Maj. Op. at creates state see so, n. If 6. this were then the fair liability coverage in implied an term their opportunity requirement of the released contract. valuation doctrine absolutely would have itself, party no substantive content whenever a holding majority

The contradicts shipped notice within the United States or adequate that Kesel received be- clarity explicit general country third-party cause of the where insurance is Guide, in the but also provisions Service available. opportuni- stating adequate that he had Kesel not arguing that he should have insurance be- ty purchase additional had right to insure for whatever amount unspoken it to be cause of what construes desired; he is arguing he should Maj. Op. terms the Guide. See at 854- have been afforded the opportunity to in- can no notice of terms 855. There be sure under terms published. that UPS present

which were not contract. majority’s The assertion that UPS should opportunity” to insure and Both the “fair limit liability allowed to to the amount if meaningless are requirement the notice unpersua- declared the customs form is shipping companies can coerce customers sive, given pro- that UPS included no such shipping by misinforming into with them liability vision its limitations. The evi- liability coverage about the terms of them profered dence Kesel is sufficient to raise impunity. with a triable issue of fact toas whether Belik majority compounds The its misunder- given opportunity purchase a fair released valuation doctrine standing higher liability coverage. I therefore re- ade- by implying that Belik also had an spectfully dissent. purchase quate opportunity to additional coverage bought because he “could have

separate shipped insurance elsewhere or

with a different carrier.” Id. This is falla- reasoning.

cious The released valuation HAUGEN, Kenneth J. Plaintiff- applies particular doctrine carrier Appellant, involves; shipper that the case must adequate opportunity pur- had an have v. carder, just chase insurance BROSSEAU, Puyallup Rochelle general things. scheme of Puyallup, Department; The (“[carri- Read-Rite F.3d at Corp., 186 Defendants-Appellees. opportu- contract must offer ... a fair er] No. 01-35954. Deiro, nity purchased higher liability”); (“carrier 816 F.2d at 1365 can ... limit Appeals, Court of United States ... recovery grants it its customers Ninth Circuit. opportunity high- a fair to choose between Argued March 2003. Submitted liability paying er lower corre- Aug. Filed (cit-

spondingly greater charge.”) or lesser York, ing New New Haven & Hartford 128, 135, Nothnagle, S.Ct. (1953)). majority’s as- L.Ed. Loun, Tyner,

Randy W. Loun & Brem- erton, Washington, plaintiff-appel- for the lant.

Mary McConaughy, Keating Ann Buck- McCormack, Seattle, WA, lin & for the defendants-appellees. REINHARDT,

Before: W. FLETCHER, GOULD, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; by Judge Concurrence REINHARDT; by Judge Dissent GOULD.

OPINION FLETCHER, W. Circuit WILLIAM Judge. 21, 1999, February Officer Rochelle

On Puyallup, Washington, Po- Brosseau of the Haugen in Department lice shot Kenneth police in he tried to flee from the back as § 1983 suit filed vehicle. a violation of his alleging district court granted gen stop, the court refused to the Riddles called rights, constitutional Tamburello drove with Matt summary judgment to Brosseau. Constru Tamburello. Atwood to mother’s house where light the evidence in the most favor they Haugen. Haugen began accosted inquire able to we whether Bros- him, away, caught run but Tamburello use of force violated the seau’s and, did, him ground, began threw Fourth Amendment it whether up. Haugen him and Nocera qualified immunity. begged she is entitled to We beat and, evidence, construed, stop, being per- Tamburello to after conclude that the so punches, Haugen conduct violated the suaded several shows Brosseau’s Amendment, and, further, agreed give the tools back. Tamburello Fourth her forcibly and Atwood then led into clearly conduct violated established law pickup planned the and to a the use of force as set drive stor- governing Garner, age facility Haugen where had the forth Tennessee v. U.S. stashed (1985). Riddle, tools, having but Irene the 85 L.Ed.2d 1 We seen outside, grant already therefore court’s brouhaha had dialed 911. reverse the district summary judgment. After her interview with Tamburello on 20th, February Officer Brosseau had I. Background felony learned that there was a no-bail Haugen Kenneth and Glen Tamburello Haugen’s warrant out for arrest based on together selling drugs were business drug and other offenses. The next morn- occasionally fixing and cars. At some ing, while in the stop midst of a traffic soured, point, relationship their and Hau- nearby, report Brosseau heard the of the gen partnership. decided to the dissolve Haugen’s ruckus at mother’s house. She 20, 1999, February On he took some of his responded quickly, and when she arrived shop. tools from Tamburello’s Tamburello pro- Tamburello and Atwood were in the wanted the tools back and wanted retribu- Haugen cess of getting pickup. into the station, and, tion. He went to the in Haugen advantage took of the distraction with interview Officer Rochelle Bros- caused arrival Brosseau’s and broke seau, reported Haugen burglar- away captors. from his would-be ranHe shop. ized his Tamburello also contacted up driveway, house, past the his mother’s Riddles, neighbors Haugen’s moth- and backyard. gave into the Brosseau er, requested and him they call should steps chase for a few and then called they Haugen see at his mother’s house. back-up, including help K-9 unit to Nocera, Haugen, girlfriend his Deanna Haugen. locate Over the next half hour or daughter Haugen’s so, Nocera’s went to Brosseau and other officers interviewed night mother’s residence the of February still at up witnesses the scene and set they laundry where did spent perimeter some a containment for the search. night. The morning, Haugen next be- To avoid interfering with the K-9’s efforts gan spray-paint Jeep scent, his Cherokee to locate the officers in his driveway. mother’s had a He war- instructed Tamburello and Atwood to re- rant out for apparently his arrest and main in pickup Tamburello’s and instruct- thought might driving evade detection ed daughter Nocera and her to remain in yellow Jeep. rather than a white It pickup parked was a her Honda. The was in the windy morning, and the driveway. Riddles com- street in front of the The Hon- plained to Haugen spray paint parked driveway da was in front of was blowing yard. Jeep. into their Hau- Jeep driveway When was in the stop, bystanders. and was Because did and the street the Honda facing him, she had missed but Brosseau believed left. angled somewhat Brosseau did not take a second shot be- meanwhile, hid in various thought cause she the risk became too around the other locations bushes away. to drive great began as he what as he tried to watch neighborhood The bullet entered back near Ap- house. at his mother’s happening blade and lodged the left shoulder his knocked on help, Haugen parently seeking wound, Despite chest. man- Rounds, a Margaret the back door words, on aged, gas” to “stand the street. No who lived down neighbor driveway, and to drive out of the across answered, Rounds so left. one neighbor’s yard, and the street. onto of the home and was aware situa- was at Photographs in the record show tire tracks listening she had been tion outside because driveway displacement due to scanner, inclina- she had no to a gravel. Haugen escaped, After some of Instead, she called help Haugen. tion to gave Haugen’s injury the officers chase. a man in her police and said that there was him made it difficult for to drive. Once he other backyard. Brosseau and the two shot, realized he had been he used one foot, and Pa- Subido officers on Officers hand to hold the wound and the other to (with 9), the K ran to Rounds’s back- shon got According drive. he never circle told Brosseau to yard. Subido Jeep past gear the third and never drove front, rounded the and as Brosseau around per forty-five faster than miles hour. Be- house, fifty Haugen saw about feet the she long, Haugen difficulty breathing fore Jeep. running of her toward his ahead road, pulled and to the side of the over tried to got Jeep into the and Haugen passed appre- out. He was where Jeep ran to the with start it. Brosseau hospital. hended and taken to the and ordered him to handgun her drawn precise The circumstances of the shoot- keys, with his stop. Haugen As fumbled deposition, In Hau- disputed. are hit the driver’s side window sev- Brosseau may gen gun testified that he believed the and, handgun, her on the eral times with discharged accidentally while Bros- have try, the window. third or fourth she broke reaching through was the driver’s seau and a baton but did Brosseau had mace Brosseau, him. on grappling window with Instead, them. she tried to reach use hand, says Haugen the other she shot just grab keys, ear to the after the Brosseau, intentionally. According to she window, Haugen through broke the she stepped away from the driver’s back starting Jeep. the Either be- succeeded moving and Jeep once the started window pulled away, just after he fore through one shot the rear side win- fired (the conflicting started to do so evidence side. dow on the driver’s him in point), this Brosseau shot the facts, typi- the parties dispute we position From Brosseau’s when she When back. her, party’s version shot, cally accept non-moving was in front of Nocera, mo- summary judgment on a ruling Nocera’s when beyond Haugen were however, case, accept Tamburello, we and Atwood. Bros- tion. this daughter, Hau- that she shot of the back- Brosseau’s statement seau said that she was “aware intentionally. gun No shot residue gen be- ground exposure,” but she nonetheless clothes, and the Haugen’s had a shot because she was found on lieved she safe that the bul- stopped by the scientist determined the bullet would be forensic thought Hau- object it struck hit another before Jeep’s engine reaching block before let Following the photos Fourth Amendment claim. gen. tellingly, Most in the rear side Jeep Katz, show a bullet hole ruling Saucier v. Court’s When asked about bullet window. 194, 121 S.Ct. 150 L.Ed.2d window, responded: hole in the (2001), two-step analy we undertake a something explain.” “That’s I can’t im qualified sis when a defendant asserts parties dispute do not one shot summary judgment. in a munity motion fired. Because the evidence unmis- was question: “this threshold We first face shot Hau- takably indicates Brosseau light Taken most favorable window, through the rear side we gen party asserting injury, do the facts in- accept Brosseau’s statement that she violated alleged show the officer’s conduct that win- tentionally Haugen through shot 201, right?” a constitutional Id. at Haugen’s speculation dow rather than If consti S.Ct. 2151. we determine gun discharged accidentally inside the violated, has been we then right tutional Jeep. step and move to the second “ask whether gunshot recovered from the clearly right established” such in district court under U.S.C. filed suit that “it would be clear to a reasonable Brosseau, claiming Puyall- § unlawful in officer that conduct was [her] up Department, and the confronted.” [she] the situation Id. deprived him of his Fourth Puyallup 201-02, 121 rights. alleged Amendment He also S.Ct. 2151. Washington of action based on tort

causes summary The defendants moved for law. Right 1. Fourth Amendment granted judgment, and the district court that, It even if the their motion. held guaran The Fourth Amendment shooting excessive force under constituted “right people of the to be secure tees Amendment, Fourth Brosseau had not the houses, persons, papers, in their and ef clearly right a and was violated established fects, against unreasonable searches and protected by qualified immunity. therefore Supreme has seizures.” Court held The district court also held that prohibits that the Fourth Amendment the practice that pointed any had not to official police in use of excessive force the violation, led to a constitutional and so he suspected crimi apprehending course police pursue against could not a suit the Connor, v. 490 nals. See Graham U.S. Fi- Puyallup. or the department 386, 394-95, 1865, 109 104 S.Ct. L.Ed.2d nally, the court could not held that (1989). Garner, 443 Tennessee v. 471 pursue injury state tort claims his because 1, 105 1694, (1985), 1 U.S. S.Ct. 85 L.Ed.2d during occurred commission of a felo- the specific the Court set forth the ny. governing constitutional rule when Haugen appealed. review a We may deadly use force: grant summary judgment de novo. See (9th Keller, Oliver v. 289 F.3d deadly prevent The use of force to Cir.2002). escape felony suspects, of all whatever circumstances, constitutionally is un-

II. Discussion It reasonable. better that all A. Fourth Amendment Claim felony suspects they die than that es-

Against Brosseau cape. suspect poses no im- Where mediate threat to the officer and no argues Officer Brosseau that she is enti- others, qualified immunity resulting tled to from threat harm (9th Henrich, him does not 39 F.3d failing apprehend Scott Cir.1994) that (suggesting the use of dead- deadly force to do so. the use of justify ly suspect force is reasonable where a a unfortunate when sus- It is no doubt officers); points at gun a Garcia v. United escapes, but the fact sight who is pect (9th Cir.1987) States, 806, 812 826 F.2d or are a arrive a little late that the (holding deadly force was reasonable justify always afoot does not little slower where the decedent attacked an officer may suspect. A officer killing the stick). awith rock and unarmed, nondangerous not seize him suspect by shooting dead.... hand, theOn other the mere fact probable has ... the officer Where suspect possesses weapon that a a does not suspect poses cause to believe See, justify deadly e.g., force. Harris v. harm, physical either to threat of serious Roderick, (9th Cir. others, it is not constitu- the officer or to 1997) (holding, Ruby Ridge civil escape tionally prevent unreasonable to case, that the FBI’s to kill directive Thus, if deadly force. the sus- by using constitutionally armed adult male un weapon with a pect threatens officer though reasonable even States United probable or there is cause believe already Marshal had been shot and killed involving committed a crime he has males); Ridge by one of the Curnow v. infliction of seri- infliction or threatened Police, (9th crest F.2d 324-25 harm, deadly may force be physical ous 1991) (holding deadly Cir. force was necessary prevent escape, used if suspect possessed unreasonable where the if, feasible, warning has where some gun pointing but was not it the offi given. been facing and was not the- officers when cers States, shot); they Ting v. United 11-12, 105 1694. Under Gar Id. at S.Ct. (9th Cir.1991) (holding 1508-11 ner, justified force cannot be based deadly force was unreasonable where may An officer merely slight on a threat. suspect dropped gun). necessary “unless it is not use force prevent escape and the officer has circumstances, deadly In some that the probable cause to believe nature may justified based on the poses threat of death or seri of the crime committed sus physical injury to the officer or oth ous Richardson, See, pect. e.g., Forrett v. 3, 105 Id. at 1694. ers.” S.Ct. (9th Cir.1997) (holding F.3d a flee deadly in force was reasonable where is clear application The Gamer had a victim in the course suspect ing suspect shot many cases. threatens Where prior But the commission weapon gun burglary). such as a or a of a an officer with a knife, always does not justified using in dead of even a violent crime the officer is Harris, See, Smith, deadly e.g., Billington justify v. force. ly force. Cir.2002) (“The (9th suspect] had (holding [the at 1203 fact that

F.3d in the immedi a violent crime deadly justified where committed force was not, it is arrest, past important an factor but physically ate suspect violently resisted more, killing him officer, justification for the offi without grabbed attacked the and Andaya, v. sight.”); Hopkins San gun); Reynolds County cer’s Cir.1992) Cir.1996) (9th (9th (holding that Diego, 84 F.3d deadly force was officer’s second use of (holding deadly force was reasonable though suspect the had behaving even suspect, who had been unreasonable where officer); a few min- violently assaulted the officer at an erratically, swung a knife before; by time of the second use had assaulted a woman. See 952 F.2d at utes force, suspect just In advancing Andaya, had deadly suspect was violently assaulted the officer. See 958 toward the officer but was wounded and Harris, unarmed). In F.2d at 883-84. may had fired shots into the woods and whether, parties dispute under Gar- have been the man who killed a Unit- even

ner, Brosseau’s use of force Officer ed States Marshal. See 126 F.3d at 1193. reasonable in the circumstances of this was Gamer, cases, including In none of these five-page type-written In a statement case. suspect’s justify did the crime the use of lengthy tape-recorded police de- deadly force. interview, partment Brosseau described Here, Brosseau had reason to believe episode gave using her reasons for had drug committed crimes First, that, deadly force. stated Brosseau burglary. Drug burglary crimes and time she at the she shot knew offenses, are serious but under Gamer the felony that he had a no-bail warrant out- question critical is whether officer has standing drug-related charges, and she “probable cause that [the to believe sus- probable had cause to believe that he had pect] involving has committed a crime Second, burglary. committed a Brosseau infliction or threatened infliction of serious reach stated she saw below harm.” physical 471 U.S. at Jeep, thought the seat of the and that she probable 1694. Brosseau had no such weapon. might reaching he be for a cause. Third, Brosseau stated that she believed injure peo- would officers or other Haugen’s Weapon b. Potential

ple by fleeing Jeep. in the area She driving said that he “was in an erratic Officer Brosseau said she believed that manner,” prevent Haugen might weapon and that she shot him to have a in the car. possible injury analyze running to others. We When toward the Jeep, thought Brosseau’s stated reasons turn. Brosseau said that she

might running weapon for a since he a. Haugen’s Prior Crimes running simply would not be to hide there. approached Jeep, she first When she Brosseau stated that she knew of the said that he “reached down to an area on warrant for and that arrest she the floorboard the middle of the front burglary. believed he had committed a seat” and that “thought she he was reach- Gamer, Under the fact that Brosseau be weapon.” for a Once she broke the lieved Haugen drug had committed crimes window, however, Brosseau saw that he burglary justify and a is not sufficient to only keys his hands. But moments cases, many deadly force. later, car, just as he started the Brosseau plaintiff will have committed one or Haugen said grab “dived forward as if to crimes, more and Gamer our circuit something again.” on the floorboard Bros- cases make clear that the mere commis seau stated that again she feared that he prior sion of not justify crimes does might weapon, have a and that she there- itself, deadly use of In force. Garner stepped fore away back and from the driv- fleeing suspect burglar. was a See 471 er’s window. 3-4, U.S. at In Ting, 105 S.Ct. 1694. suspect part major orga was of a narcotics Brosseau admitted that at the time she nization. F.2d at 1507-08. In shot she was not worried that he Curnow, suspect any officers believed that the weapon against would use her. She him, stepped away appeared and to reaching had back be for some- him, positioned herself behind so that thing. Construing all of the relevant facts Haugen gun if had had a he would even and circumstances and drawing all reason- said, not have had a clear shot. She howev- favor, able in Haugen’s inferences as we er, gun had a Haugen that she feared summary must on motion for judgment, officers who might might use it on some we conclude that Brosseau has not demon- car, of his approached have front strated an objectively reasonable fear it Tamburello or might against that he use potential weapon about justify would Atwood, unhappy “who he had cause to be her use of force.

with.” c. Impending Escape in a Vehicle predicate

The factual of Brosseau’s Haugen stated reason is that dove forward Finally, Brosseau asserted she But as he started the car. several other Haugen injure feared would officers or gave witnesses statements about what get away others when he tried to in his doing in the car. None of Haugen was In Jeep. type-written her report, Brosseau these witnesses mentioned that perception described pre- her of the threat forward, any dove and none has offered by Haugen’s escape. sented In relevant support for assertion that Hau Brosseau’s part, report her states: looked if he have reach gen might as been I was fearful for the other officers on weapon. for a Nor has Brosseau of ing foot who I believed were in the immedi- support fered other evidence to her area, ate occupied for the vehicles in his that Haugen might gun. belief have had a path and for any other citizens who car, gun did not in the She see she might It be area. should be noted any reports might had not received that he [i.e., the small red car Nocera’s one, have or indeed that he had ever had parked directly was Honda] front of precedent, one. Under Ninth Circuit Jeep and that I had last seen Nocera presence weapon justify mere does not daughter and her I sitting inside of it. force, Harris, the use see Jeep saw no one between the and me. I 1202; Curnow, 324-25; F.3d at 952 F.2d at through fired one round the rear driv- 1508-11, Ting, 927 F.2d at let alone er’s window. I side had aimed at a presence potential weapon. of a ' perceived I position would be the driv- simple statement an of “[A] attempt er’s location in an him stop safety ficer he fears for his or the anyone. before he could hurt safety enough; of others is not there must objective justify factors to such a con Rutherford, cern.” Deorle v. During my encounter with it (9th Cir.2001). wholly Movements was obvious that he was in a suspect not enough justify deadly are unstable frame of mind. He did not if, in I light any regard of the relevant circum exhibit for his own life. stances, those movements would not cause considered an immediate dan- every a reasonable officer to all him ger believe around and made reaching weapon. attempt stop including attempt- was for a him - support by striking of her stated fear that him his head. At stun reaching weapon, for a Brosseau has this time I am unable to make an accu- objective Jeep cited no factors other than her rate estimation of the distance the I stated observation that he dove forward was from me when fired. to, way going in- out of there was tape-recorded police department

In her little red terview, described her to strike the truck Brosseau further car, or both. to use force based on what decision posed by the threat Hau- perceived she as were, Q. people in the truck So two escape. por- The relevant gen’s imminent being struck were interview are as follows: tions of her recklessly driven vehicle? Q. you point, At that who then did A. Yes. become concerned about? Q. girl As well as the little [M]y point A.... concern at mother? time were for the vehicles direct- A. Yes. One, ly in front of him. which him, um, Q. Haugen’s in the car? directly girlfriend

was in front of red Where, you occupied by which is a woman did believe the were were, um, and her child. And the other other officers at the scene that I felt during you, were the incident where were area, immediate that were com- you, you when fired the shot? At I up. on foot to back me was that moment. quite sure that some of them uh, At that can stop A. moment we right were close to where he was tape again for a second? driving. Q. you When were at the driver’s door Q. uh, you How do think his close um, confronting Haugen, where speeding striking car came from were the other officers at the scene? red [Nocera’s Honda]? I, they A. I did not see where were at.

A. I don’t know. Q. you they Where did think were at? Q. Okay. it within Was ten. feet? presume they A. I A. I I’m were having don’t know.... some area, approaching immediate to as- perceptions trouble with of dis- sist me. tances.

Q. Okay. you Can estimate how close um, you were car you to his when Q. Um, your objective what was when fired the shot? you your weapon fired at the mo- A. No. at this Not time. you weapon? ment fired the protect A. To my fellow officers and Q. Did, him, Okay. a way was there community from an eminent get the Cherokee to out onto the danger. [sic] by using way? street the drive Q. reasonably You believed that there A. No. was an immediate threat to their Q. you think going So what did he was life? to do? Yes, A. I do. Well, A. driveway completely uh, pick up blocked Q. Okay. just

truck. And the little red car was And again, once so that I sure, an, almost completely blocking you give it as know for can me So, I thought your well. that his basis for the reasonable belief Florence people’s up Jeep. Neighbor lives were the Ledbetter that the other across the street said she saw and heard threatened? just Jeep the shot when the “started to all, in I had mind

A. First of still ' Jeep move.” stated that the Tamburello Um, I weapon. thought he had already moving, gone perhaps but had was very difficult for it would be six feet. Atwood that Brosseau shot said from the try him and shoot at me “just Jeep pulling away,” when the started I at when fired. position we were “[hjadn’t far,” very that it and that moved Uh, however, I felt that he could’ve gone “maybe” it had five ten feet. Ac- him, officers in front of fired on cepting disputed the version of the facts truck, pick-up in people or the the Haugen, most favorable to we do not cred- uh, unhappy he had cause be who it Brosseau’s assertion that “he was driv- driving, And his more than with. manner,” in ing an erratic for we must I His vehicle. did anything else. summary judgment assume on the could see where he

not believe he Jeep had not even moved Brosseau when driving in an going. was He was shot him. pedestri- erratic manner. Now in the

ans and officers and residents Brosseau also thought stated she area. Haugen’s driving particularly danger- ous because he could not see where he was in thus indicated her written Brosseau going. Brosseau said that “the front wind- and interview that she was con- statement part passenger shield and at least of the driving would endan- Haugen’s cerned that Jeep] side windows were covered [of officers,” people the four in her “fellow ger newspaper Haugen had with” the used to others. pickup, the Honda and the protect paint. glass spray people variously characterized these She however, Haugen, testified that there was in “any might citizens who as other paper also no windshield. Atwood him,” area,” those who were “all around newspaper that there was no on the stated community,” and “residents “the Tamburello stated that he windshield. area.” paper saw some on one side of the wind- To the extent that Brosseau said she shield, Haugen pulled but that it off before in an driving he “was shot because stage at got Jeep. Because this manner,” sup- her is not erratic statement proceedings we must construe the fac- the tim- ported by regarding the evidence favor, cannot Haugen’s tual evidence we Haugen says that shooting. of the sup- say objective that there was evidence Jeep him even Brosseau shot before the porting Brosseau’s claim According not moved. going not see where he was as could manner,” “in an erratic driving was he not newspaper covering the wind- result of the driving at all. Others stated he was shield. that, most, just Haugen’s Jeep had be- , that, at the explained Brosseau further gun to move. Nocera said that Brosseau fired, did not believe that Jeep, moment she she shot after he started out,” impending escape Jeep ready pull just “getting as he was her, pose that it did posed danger to roll.” barely starting and that it “was in the area. She stated “pret- to others Aaron Riddle said he heard the shot worried, about specifically, Jeep time” that the that she was ty much at the same Tamburello, Nocera, daughter, said she Nocera’s moving. started Irene Riddle daughter and her and Atwood. Nocera just Haugen as first revved heard the shot “presume[d] that was fear. claims that she were inside the red Honda this She area, Jeep driveway they ap- between the that were the immediate parked assist,” and Atwood proaching and the street. Tamburello to but she does not parked pickup they were seated in the that was that claim she saw them knew driveway. at the end of the dangerous place. the street in a had left were She Pashon, only other officers Subido Brosseau indicated she was worried foot, in backyard. officers on Rounds’s hit- Haugen escape could not without patrol Two other officers were their cars pickup. According ting the Honda or positions in containment on the street sev- Brosseau, driveway “completely to was Haugen’s eral hundred feet to the south of by pickup blocked” and “almost com- mother’s house. Brosseau had not called pletely by Honda. But block[ed]” her, Subido Pashon to assist and there say Haugen Brosseau could not how close they running is no indication that were to “I’m actually hitting came to the Honda: Atwood, give her aid. who witnessed the difficulty perceptions with having some pick- events while seated in Tamburello’s argues distances.” Brosseau nonetheless up, stated that the other two officers were reasonably Haugen’s that she believed that backyard still in the at the time Brosseau escape dangerous was because he was like- they running fired. Even if had to been ly pickup. to hit Honda or the assist, Subido and Pashon would have been statements, Contrary to Brosseau’s south-east, running Haugen from the while easy escape stated that he had an Thus, escaping was to the north-west. by driving off to the left around the Honda while Brosseau stated that she feared and pickup. Haugen admitted that he was might officers on foot be struck Hau- “small, fairly space” in a tight which was gen’s Jeep away, as he drove her state- lot,” parking “not like a but he said that simple than ment is no more a “a state- the driveway twenty was about feet wide unsupported by “objective ment” of fear “plenty and that he had of room” to drive Deorle, factors.” 272 F.3d at 1281. She between neighbor’s the Honda support has not offered evidence Jeep house hitting anything. without The Haugen posed the claim that left, already angled was to the and Atwood bodily injury risk of death or serious stated that he saw turn the wheels fellow officers. to the left putting Jeep gear. before “clear, had a straight said High-Speed d. Police Chase driveway. photo- shot” out graphs of the scene also show that The dissent contends that a need to enough away had more than room to drive prevent dangerous high-speed police without striking Nocera’s Honda or Tam- justified chase Brosseau’s decision to use pickup. Viewing burello’s the evidence in deadly force. Brosseau stated that she favor, Haugen’s we conclude that Brosseau was concerned Haugen’s about erratic pointed has not objectively reasonable driving, but she never stated that she shot support factors to her belief that chase, prevent dangerous high-speed escape driveway from the posed signifi- argued potential and has not to us that a cant risk of death injury or serious justified chase her use of force. people in pickup. the Honda and the respect, this this case to some extent resembles ner,

Brosseau also asserted that she feared Gar where the officer for the safety initially justified of her fellow officers. She his use of has specific support offered no evidence to prevent based on the need to later-appar suddenly made his freedom an immedi escape asserted Garner’s deadly force safety. counsel-that ently through public ate threat The cost to dangerousness. justified Garner’s society allowing criminals to flee is 21, Garner, at 105 S.Ct. 1694. See great, but the has held Court Connor, 490 Graham v. know from We always justify that this cost does not dead 397, 1865, 386, 104 L.Ed.2d U.S. felony “It is not better that all ly force. (1989), in that “the ‘reasonableness’

443 they escape.” die than that suspects Id. at case is an ob in an excessive force quiry 11, 105 S.Ct. 1694. question is whether the

jective one: ‘objectively reasonable’ officers’ actions are Because Brosseau has made no ar and circumstances fight in of the facts gument danger potential based on the of a them.” The relevant facts and confronting chase, high-speed nothing there is are those known to the offi circumstances whether, to tell Pu record us under the at time she acts. officer’s “[A]n cer policies yallup Department or other objectively reasonable use of force must be rules, applicable appro it would have been contemporaneous knowl based on [her] to priate for the officers initiate or contin Deorle, facts.” 272 F.3d at edge of the high-speed posed signifi ue a chase that a objective facts and 1281. We examine note, however, cant to others. We Brosseau at the circumstances known to law, Washington under she time she acted to determine whether pursuit regard must drive with due poten probable had cause to believe that safety of others. Wash. Rev.Code “pose[d] high-speed tial chase § Washington may 46.61.035. Officers physical injury threat of death or serious injuries during be held liable for caused Garner, 471 U.S. to the officer or others.” and, chases, high-speed comport to with 3, 105 S.Ct. 1694. care, duty they their state law of must it At the time Brosseau shot recognize “that at times it would be more clear that he intended to flee in his pursuit in order prudent to cease non-lethal mea- Jeep and that number of Bitton, protect public.” Mason v. 85 prevent doing him from sures had failed to (1975). 321, 1360, P.2d 1363 Wash.2d 534 equally But it clear that so. is Brosseau Different states and localities have dif- did not need to kill and her fellow officers regarding police policies ferent laws and dangerous to avoid a order recognized that offi- pursuit. Many have They could either have high-speed chase. of in relation to cers have duties care if it discontinued a chase became too dan- pursuits, may and that officers vehicular forgone or could have a chase en- gerous, initiating continuing unreasonable in be tirely. already remained at high-speed depending, among chases other while no-bail large for several months suspect’s nature of the things, on the outstanding, and there is no warrant was may circumstances February events of 20 and crimes.1 “Unusual reason See, Stratford, (1978); Arlington County, e.g., Tetro v. Town 189 Conn. Biscoe v. 738 of 601, 5, (1983); City 1352, (D.C.Cir.1984) Pinellas (applying A.2d 8-10 1363 458 of Brown, Columbia, 1222, (Fla. law); City Park v. 1225 Seals v. 641 604 So.2d D.C. of 122, Lang, 1247, (Ala. 1994); 1992); v. Estate Aten v. Cameron 274 Ga. 549 So.2d 1248 of State, Tucson, 951, 341, (2001); Boyer v. 147, City 347-48 169 Ariz. 817 P.2d S.E.2d of 558, 121, (1991); George, Fiser (1991); City Valley 132 Caddo v. 323 594 A.2d 955 Md. of Arbor, 461, 203, 481, (2000); City v. Ann 417 Mich. 340 Ark. 9 S.W.3d of Sacramento, 413, (overruled (1983) County part, Brummett v. 21 Cal.3d N.W.2d Detroit, v. Robinson Cal.Rptr. 462 Mich. 582 P.2d injuries. make it reasonable” for to initiate or Police must reevaluate chases, high-speed continue but “such con- their thinking Agencies and mission. justified the end itself duct is not unless rarely justify endangering public can Haynes value.” sufficient social pursue a violator. County, Hamilton 883 S.W.2d (endnote omitted). Hill, supra, at 16 (Tenn.1994). “The decision to initiate or Thus, that, just as Gamer instructs pursuit continue may negligent when Amendment, comply with the Fourth heightened par- third injury risk officer must forgo sometimes or discontin- ties is unreasonable in relation to the in- ue force and allow apprehending suspects.” terest in Travis 11-12, escape, see 471 106 U.S. S.Ct. 94, City v. Mesquite, 880 S.W.2d 99 of 1694, police practice state tort laws and (Tex.1992). A ruling that allowed officers experts instruct that an officer must some- deadly prevent to use force to all vehicular forgo suspect times a chase and to allow escapes paradoxical would have the result escape. reasonably officers could shoot to kill when, law, they even under state could not potential high-speed It is no less true in reasonably initiate or continue a chase. chases than in other circumstances that an justifiable The dissent concludes that a may officer appropriately deadly use force eliminating possi- means of danger of “necessary prevent escape an and the high-speed ble chase this case is to probable officer has cause to believe that suspect shoot the begins before he to drive suspect poses threat of article, away. The dissent relies on an physical death or serious injury to the by parties, cited attesting to the dan- 3, officer or others.” Id. at 105 S.Ct. 1694. 10622, ger of chases. See dissent at But because can often eliminate or Hill, n. 5 (citing High Speed John Police reduce the of high-speed chase Dangers, Pursuits: Dynamics, and Risk by chase, forgoing or discontinuing we Reduction, FBI Law Enforcement Bulletin reject approach an that would offi- allow 2002)). (July 14 But the article reaches suspect simply cers to shoot a because he quite a different conclusion from the dis- flee, fleeing, is or is about to in a vehicle. sent. suspect Even after a has fled and a approach Such an essentially would limit pursuit initiated, has been Court’s holding Gamer to way [t]he most effective to reduce risks cases where a suspect flees on foot. The pursuit. Clearly, to terminate a too opinion limitation, Court’s contains no such many pursuits continue that officers ob- and we decline to read such a limitation viously should have terminated. Re- into it. pursuit search on data and statistics support show that termination To dramatically possi- its contention that the accidents, fatalities, could reduce traffic bility dangerous of a high-speed jus- chase (2000)); Dimmitt, 291, 1027, City 613 N.W.2d 307 Smith v. 310 Cr. 797 P.2d 1030- of Point, 816, (Miss. 1985); (1990); West 475 So.2d Santiago, 818 31 v. 256 Pa.Su Kuzmics Ellisvilie, 35, City 587, (1978); Oberkramer v. per. 650 S.W.2d Haynes 389 A.2d 590 v. of 286, 606, (Mo.Ct.App.1983); 292 County, Lee v. Hamilton 883 S.W.2d 610-11 of Omaha, 345, 800, (Tenn.1994); 209 Neb. 307 N.W.2d City Mesquite, 803 Travis v. 830 of (1981); Nassau, 94, County (Tex.1992); 45 S.W.2d Jersey Selkowitz 99 New Police of 97, 10, 1140, N.Y.2d 408 N.Y.S.2d Policy, 379 N.E.2d Att'y Vehicular Pursuit Gen. Guide (1978); Hill, 231, (Dec.2001); 1143 Parish v. Angeles 350 N.C. lines Dep’t Los (1999); Manual, (2003); S.E.2d Ahlberg, Jones v. ch. Dep’t Seattle Police (N.D.1992); (2003). N.W.2d § Lowrimore v. Policies & Procedures 1.141 the tires by shooting in this truck and radiator. deadly force Brosseau’s use tified In case, general Clay County, statistics Scott v. the dissent cites (6th Cir.2000), car chases. These statistics 877-78 the Sixth Circuit dangers parties, and supplied by the justified have not been force was deadly held where by relied on Bros- perforce road, have not been nar had swerved off the Haugen. More responded seau or rowly missed an unmarked cruiser and a over, judi properly if we could take even foot, twenty- sheriff on led on a chases, of car cial notice of statistics speeds up per minute chase at to 100 miles already rejected has this Supreme Court hour, control, losing attempted and after general approach kind statistical run an In v. Capobian down officer. Pace individual case. prove dangerousness (11th co, Cir.2002), 1281-82 Gamer, attempted justify Tennessee held that Eleventh Circuit force burglar on a its use of justified a suspect, already pep where involved noting burglaries that 3.8% of per-sprayed struggling after with an offi crime, literally mil accounting for violent cer, high-speed led on an extended id. at lions of incidents of violence. See chase, turns, during which he made erratic 1694. But the 21-22 & n. wrong drove on the of the road with side general held that the sta Court off, headlights oncoming his swerved at justify cannot probability alone tistical cars, through yard, nearly drove a hit a of deadly generalized A assessment force. motorist, and then accelerated toward a not, burglars “could dangerousness of patrol car. circumstances, the other regard without But our circuits have also held sister deadly automatically justify the use high-speed chases—even chas- police that 21, 105 at 1694. force.” Id. S.Ct. always justify deadly force. es—do circumstances, fairly In some extreme Cox, 1027, Vaughan v. 264 F.3d 1031- that the dan our sister circuits have held (11th Cir.2001), by vacated in vehi ger presented by suspects who flee 153 L.Ed.2d 830 S.Ct. justify deadly can force. In Smith v. cles (2002), supplemented on reinstated (6th

Freland, Cir. 954 F.2d 347-48 (11th Cir.2003); remand at 316 F.3d 1210 1992), held that an officer the Sixth Circuit Milwaukee, v. 17 F.3d Donovan justified using deadly a after (7th Cir.1994). Vaughan, In 946-51 high-speed had on a led pursued a that had officers vehicle speeds ninety per over miles chase at car and then accelerated patrol rammed a hour, police cars several swerved toward per miles hour in eighty eighty-five times, an officer’s car and smashed into In' attempt capture. to avoid an at- an to it. In while the officer stood next Cole tempt [the “to either the truck or disable (8th Bone, Cir. 1330-33 three one of the officers fired driver]” 1993), deadly that Eighth Circuit held of the bullets rounds into the truck. One justified suspects, force was where truck, punctur- passenger struck the tractor-trailer, driving eighteen-wheel an held, spine. The Eleventh Circuit police on an extended chase at had led circumstances, “a in those reasonable speeds ninety per through miles hour over suspects’] escape jury find that [the could traffic, heavy forcing over 100 cars off the present an immediate threat did not road, pursuing police and had swerved at on case, harm or others [officers] serious using times. In that before several id. at force, 264 F.3d at 1034. See also attempted road.” deadly that case from (distinguishing n. 8 tried to disable the roadblocks and had Scott). Smith, Cole, Donovan, In the when Brosseau arrived on the scene. Dis- accounts, however, Seventh Circuit held that at engaged By sent 877. all high-speed pursuit justified Haugen were not receiving was on the end of the case, stated, in using deadly force-—in this a road violence. Tamburello he “[W]hen stop fleeing motorcycle. block—to seen me he started to run.... And I ran “very skeptical” court stated that it was grabbed over and him. Got into a little approach that would allow top use scuffle there.... I was on himof pursuits Atwood, force to end vehicular ground.” Tamburello’s com- circumstances, all because “not every panion, flee- stated that when Tamburello ing suspect poses grave danger.” 17 caught Haugen, “squirmed he a little bit. Vaughan know, F.3d at 951. both and Dono- Tried get away. You begged van, case, him, unlike in this suspects Nocera, al- didn’t go[.]” want to Hau- ready driving dangerous were manner gen’s girlfriend, stated Tamburello regard without for the safety up of others. “ran ground,” and tackled Ken to the cases, But in those was held to pounce and “continued to himon out here justify deadly Moreover, (if be insufficient to by force. the [car].” the “brawl” was) is what it was finished before None of the cases decided our sister Brosseau arrived. circuits and cited the dissent re- even motely supports holding Further, in this case to exaggerate the danger of justified Brosseau was in using Haugen’s escape, the dissent stresses that dissent, force. Unlike the we believe that Haugen escape had to through a “narrow there is a manifest difference between passageway” and a dangerous “obstacle swerving at cars driving ninety while at course.” Dissent said per miles hour and then smashing patrol “small, a that he was in a tight space” that it, standing car with an officer lot,” next to see was “not like a parking but that the Smith, 347-48; 954 F.2d at driving an driveway twenty wide, giving feet him eighteen-wheel ninety per truck at “plenty “clear, miles of room” and a straight traffic, Cole, through heavy hour see get 993 shot” to photo- to the street. The 1330-31; F.2d at leading twenty-minute graphs of the scene show that Haugen had per chase at 100 miles hour and attempt- more enough than escape room to without officer, Scott, run ing to down an see 205 hitting Indeed, anything anyone. or 877-78; F.3d at and at driving high speeds was able away to drive safely even after on wrong the side of the road with head- Brosseau shot him.

lights off and accelerating patrol toward a Finally, the dissent characterizes Hau- car, Pace, 1281-82, see 283 F.3d at on one gen “wild,” “deranged” as and dissent at hand; getting into vehicle and flee- 10623, 10629, but this characterization is ing, flee, preparing to on the other. not supported by the record. Brosseau

To the extent that the dissent looks to stated that she held her handgun to Hau- particular the facts of this ease rather than gen’s temple, yelled that he “you’re gonna chases, to the general danger it have to fuekin kill me.” But her version of does not view the light evidence facts is contradicted Haugen’s ver- Haugen, most favorable to as we are re- sion of the facts the other wit- quired summary judgment. nesses, to do on For who saw and heard thing. no such example, portray Haugen as violent and The dissent also asserts that Haugen was dangerous, therefore the dissent asserts behaving 10620, “suicidally,” dissent at engaged he was in a “violent brawl” there is no indication in the record that

873 (Of Fourth if it is exces- to harm himself. to the Amendment intended view, objective sive under standards of rea- course, dissent’s on the enough. sonableness. Yet that is not since police in a vehicle was itself suicidal Rather, kill.) emphasized we in Anderson could shoot right alleged the official “that is Amendment Conclusion e. Fourth 'clearly must have violated have been in a particularized, established’ more we con foregoing, Based on relevant, hence more sense: objective there is insufficient clude right sufficiently contours of the must be in the record to Brosseau’s grant evidence clear that a official would reasonable Taken summary judgment motion. doing vio- understand what he objec

light most favorable right.” lates evidence, of the light tive examined surrounding this 201-02, of circumstances

totality (quoting Id. 121 at S.Ct. 2151 as of time Brosseau 635, 640, case and evaluated Creighton, v. Anderson 483 U.S. support (1987)). not

actually gun, 3034, fired her does 97 L.Ed.2d 523 matter Bros words, as a of law that conclusion other Brosseau made a reason- “probable seau cause to believe requires, able mistake about what the law pose[d] threat [Haugen] is immune from suit. id. at she See physical injury death or serious 2151. S.Ct. Garner, at or others.” 471 U.S. officer hand, the other state officials are On 1694. We therefore conclude S.Ct. qualified immunity simply be- entitled conclude, jury

reasonable could based materially no case with similar facts cause evidence, vio this that Brosseau’s conduct their conduct unconstitutional. has held right. Haugen’s Fourth Amendment lated Pelzer, 730, 739-41, See v. Hope 536 U.S. Katz, 2151. S.Ct. (2002); S.Ct. L.Ed.2d Dist., Morgan Hill Sch. Flores Unified Qualified Immunity (9th Cir.2003). 1136-37 that “a viola Having determined warning: is one fair The standard tion out on view could be made a favorable have been right the contours where id., submissions,” must [Haugen’s] of we that a specificity with sufficient defined next whether is nonethe decide Brosseau her warning had fair state official qualified immunity. less She is entitled deprived rights, a victim of his she conduct not Fourth immunity entitled to qualified immunity. is not entitled clearly at es right Amendment issue was Pelzer, 10, 122 at 740 n. S.Ct. & For a to be clear right tablished. See id. 2508. established,

ly it must defined with ex- general proposition that Beyond the offi specificity sufficient a reasonable unconstitutional, the Su- force is cessive it. violating cer known would have she “spe- preme in Court Gamer articulated situations, the Amend- Fourth some deadly of governing rule” the use cial exces- prohibition against general Phoenix, ment’s Monroe force. See specific may sufficiently sive force not be (9th Cir.2001). 851, Gar- Under put what conduct an officer notice of ner, where deadly permissible force is is and what is not: allowed probable cause to believe has “the officer poses a threat of serious suspect v. Con that the is no doubt that Graham

[T]here harm, toor either to the officer clearly general physical ... establishes nor 1694. at 105 S.Ct. contrary that use of others.” 471 U.S. proposition force is See, Harris, e.g., at (holding 109 S.Ct. 1865. “The ‘reasonableness’ in agent Ruby Ridge that the FBI civil particular of a judged use of force must be immunity); qualified case was entitled to perspective from the aof reasonable offi- rnow, 952 F.2d at (holding 324-25 scene, cer on the rather than with the Cu qualified officers were not entitled to vision of hindsight.” Id. at 20/20 immunity they where shot a who judge S.Ct. 1865. We must Officer Bros- possessed gun pointing but was not it at seau’s action at the time she decided to the officers and facing was not the officers shoot, and we give leeway must her shot). they when make reasonable mistakes. qualified

The doctrine of But immunity grave we are also mindful of the operates protect “to officers from the threat rights pres to constitutional that is hazy sometimes border government between excessive ent when deadly officials use Katz, “[Wjhile acceptable force.” against U.S. force citizens. giving due 206, 121 S.Ct. 2151. Officers are not liable judgment deference to difficult calls made they street, when err borderline eases. See on the we also must insure the Deorle, citizens, 272 F.3d at But rights felons, 1285. the evi even to be here, dence when taken in the light most free from unreasonable Dono seizures.” van, favorable to Haugen, present does not 17 F.3d at 951. “The intrusiveness of borderline case. Viewing the evidence in deadly seizure means of force is unmatched.” favor, Haugen’s er, Brosseau shot in Garn 471 U.S. at the back even though he had not commit S.Ct. 1694. “The deadly use of force is a ted indicating posed crime that he self-defeating way apprehending a sus harm; threat of serious physical pect setting justice and so the criminal even though Brosseau had objectively successful, no mechanism motion. If it reasonable evidence that Haugen guarantees had a that that mechanism will not gun weapon; or other though even Hau be set in motion.” Id. at gen vehicle; had not started to drive his It was for that reason that though even had a path clear Court in Gamer held that escape. Viewing the evidence Hau may not be simply used because a favor, gen’s there is objective insufficient felony suspect successfully evading ar support evidence Brosseau’s stated con Viewing rest. the evidence in that, him, favor, cern at the time she shot Hau Brosseau’s use of force was a gen posed a significant Gamer, risk to offi clear violation of and consequently cers or others the area. We therefore she is not summary entitled to judgment conclude that Brosseau’s mistake about qualified based on immunity. requirements of the Fourth Amend

ment “ B. Fourth unreasonable, was Amendment Against and Claims that she had warning’ City Department

‘fair and Police deprived [her] conduct [Haugen] of a right.” constitutional Pel In suing addition to Officer zer, 740, 122 536 U.S. at S.Ct. 2508. Brosseau, Haugen City also sued the of

We are mindful Puyallup officers are and the Puyallup Depart Police upon called “to split-second make judg- ment. Municipalities “persons” are sub tense, ments—in ject circumstances that are to suit 42 § under U.S.C. 1983. See uncertain, and rapidly evolving the Monell v. New York City Dept. Social —about of Serv., amount of force that is necessary 658, in a 55, 436 U.S. 691 n. 98 S.Ct. particular Graham, 2018, (1978). situation.” 490 at U.S. 56 L.Ed.2d Municipali- 611 ratify choice” to the conduct in a tradition- affirmative held liable under cannot ties Rather, Gillette, theory. question. 979 F.2d at 1347. superior respondeat al case, when “action has made no present held liable they may be of municipal policy to official pursuant showing. such tort.” a constitutional nature caused some municipal Although pro some 691, 98 S.Ct. 2018.

Id. ratifying nouncements a subordinate’s ac allege, did not and complaint Haugen’s could be tantamount to the an tion appeal, to us on argued he has policy or confirmation of a nouncement any pre- to acting pursuant Brosseau was Monell, purposes of here there are no for him. Rath- policy when she shot existing suggest in the record that that the facts er, city and the contends that discipline Haugen to rises to single failure they faded are at fault because department See, e.g., a ratification. the level such shooting. after the discipline Brosseau to Fenton, 373, F.2d Santiago v. course, cannot, argue that the Cir.1989) (1st (refusing to hold that (or inaction) action municipality’s later police department of a to disci “failure ar- shooting. Haugen the earlier caused specific adequate in a is an pline, instance city de- that the gues instead municipal liability basis for under Mo 10615 be- be held hable partment should ”). Pu Puyallup nell The and the “ratified” Brosseau’s decision they cause yallup Department are therefore use force. summary judgment. entitled doctrine, asserted The ratification liability, originated municipal for

as a basis Brosseau Against C. State Law Claims Praprotnik, Louis v. St. Haugen also sued Brosseau based on (1988). 99 L.Ed.2d 108 S.Ct. Washington state law tort claims. Under There, plurality a of the Court law, policymak the authorized that “[i]f stated complete defense to action [i]t approve a subordinate’s decision ers personal injury or damages for it, their ratification would be the basis for injured wrongful person that the death municipality because chargeable commission engaged killed was Id. at their decision is final.” felony at the time of the occurrence Praprot But the sentence from S.Ct. 915. felo- causing injury or death in context. The Court nik must be read injury cause of the ny proximate was a munic Praprotnik held in establish or death. “prove[ liability, plaintiff ] must ipal (2003). § 4.24.420 Wash. Rev.Code municipal of an unconstitutional existence law dismissed state district court 915. A Id. at policy.” because, view, Haugen claims its municipal policymaker single decision felony commission of engaged trigger section 1983 “may be sufficient law Washington him. when Brosseau shot Monell, though the liability under even provides that future govern is not intended to decision Delmore, a motor vehicle who wil- situations,” [a]ny driver of Gillette Cir.1992) immediately (9th fully fails or refuses (citing Pembaur 480-81, stop and who Cincinnati, his vehicle to a bring City of indicating in manner (1986)), drives his vehicle 89 L.Ed.2d 452 for the disregard or wilful lives a wanton triggering must show that the plaintiff attempting “conscious, others while property or product of a decision was the vehicle, pursuing police to elude a after seau. We for proceed- REMAND further being given signal a visual or audible to ings.

bring stop, to a vehicle shall be in part, AFFIRMED REVERSED guilty felony. of a class The signal C part, and REMANDED. to Haugen Costs given by police may by officer appeal on his relevant to Brosseau. Costs hand, voice, emergency light, or siren. City Puyallup Puyallup and the giving signal The officer such a shall be Department. Police ap- uniform and his vehicle shall be propriately showing marked it to be an REINHARDT, Judge, Circuit police official vehicle. concurring: § Id. 46.61.024. I join fully in Judge opinion Fletcher’s shot, court, being

After drove for the on understanding and, time, away stop may for a refused to not use deadly against police. ultimately pled guilty nondangerous He to a felo otherwise felony suspect But, § ny simply under 46.61.024. as discussed in because a chase of that suspect, A.l.c., otherwise, swpra, disputed high-speed section there is a or would become or question Rather, factual does dangerous. about when Brosseau shot become Ias un law, Haugen. Construing Haugen’s the facts in derstand the controlling if a high- favor, it appears may speed that Brosseau nondangerous have chase of a felony sus pect be, becomes, shot begun before he had would or dangerous, the “drive his vehicle in a indicating manner officers must terminate the chase. In oth words, disregard wanton or wilful er for the lives or the chase itself cannot create the property danger justifies of others.” Id. It therefore is not shooting who, Garner, clear that he engaged “was under may commis not otherwise be felony sion of a at the time the occur shot. I do not understand the out-of-cir rence causing injury” cuit felony that his cases in Judge discussed Fletcher’s proximate “was cause of’ his injury. opinion Id. excellent and in the dissent to hold added). § (emphasis 4.24.420 stage At this otherwise.

in the proceedings, it is not clear that GOULD, Judge, Circuit dissenting:

Brosseau will have the benefit of the com plete provided § defense 4.24.420. We I accept cannot majority’s conclusion therefore reverse the district grant court’s that Haugen, a visibly disturbed felon will- of summary judgment state ing to do anything almost capture, to avoid law tort claims. pose did not “a threat of death or serious physical injury” to others when

Conclusion attempted a high-speed flight vehicular reasons, For the foregoing we RE- from through a suburban residential VERSE the grant district court’s of sum- neighborhood on a Sunday afternoon. Nor mary judgment § on Haugen’s 1983 claim can I accept the majority’s holding that— against Brosseau. We AFFIRM the dis- because can reduce the danger of a trict grant court’s of summary judgment high-speed chase letting a felon es- on Haugen’s § against claims cape police may never use force to — Puyallup Puyallup and the protect public from the posed Department. We REVERSE the district flight felon’s reckless in a grant court’s of summary judgment on vehicle. majority’s sweeping holding, Haugen’s state law claims against Bros- which promises an easy escape to any fel- Viewing light the evidence the most lives innocent willing to threaten mat- to as we must at this as a favorable recklessly, is indefensible driving stage,2 probable it conflicts with Brosseau had policy, and Officer of law and ter holdings Haugen’s fleeing offi- cause to believe that the circuits’ our sister pose significant the Fourth Amendment car a not violate scene his would cers do stop to a Haugen by using threat of serious harm others. likely to drive an auto- appears capable desperate who man desperate

felon was the lives disregard for Haugen felony suspect mobile with willful was a measures. majority opinion creates who, The of others.1 arrived on the when Officer Brosseau to effective law enforcement scene, new obstacle engaged was in a violent brawl with It threatens in the western United States. Haugen two other men.3 defied Bros- guilty. the protect innocent to the stop; ignored orders to he her seau’s he

brandishing gun range; ig- at close his car with the beating nored her window I gun; ignored shattering of her he her butt window; ignored striking car he her his Garner, Tennessee Under gun; him in the head with the butt of her (1985), the 85 L.Ed.2d 105 S.Ct. attempts grab keys. his ignored her Brosseau’s con of Officer reasonableness behaving wildly, even suicid- Haugen was de Fourth Amendment duct under the (defying brandishing gun an officer (1) ally probable had pends on whether she range), at close and Officer Brosseau Haugen’s fleeing the to believe that cause Haugen probable cause to believe pose “a in his car would scene capture. anything do almost avoid physical injury” would of death or serious threat Atlanta, (2) 25 F.3d Menuel v. deadly force was See and whether to others Cir.1994) (from (11th vantage the escape. necessary prevent Haugen’s confronting dangerous officer sus- of an 1694. Officer Brosseau’s Id. at neither pect, potential “a arrestee who is conduct was reasonable under Gamer yield- physically compliantly nor subdued standard. below, were distracted. I ellbowed majority Tamburello] creates a explain 1. I As holdings way out of the car split, departing from the the rest of [Atwood] circuit Sixth, Eighth, got away Circuits. and Eleventh from him.” event, it does not matter whether In granted court 2. This is because district were the initial Haugen or his adversaries summary judgment to Officer Brosseau. aggressors combat. What matters is in their "contemporaneous knowl- Officer Brosseau's Haugen attempt portray appear- as facts,” Rutherford, edge of the see Deorle v. that, majority "[b]y ing peaceful, the states all (9th Cir.2001), and Offi- accounts, receiving Haugen ... was on the only that cer Brosseau knew 'brawl' ... of the violence .... [and] end engaged when she arrived in a violent brawl arrived.” See was finished when Brosseau undisputed Officer It is on the scene. added). majority (emphasis supra stating dispatch a radio Brosseau received deposition, omits account progress” "fight in and that that there was a engaging in acts of which he admitted to ground.” fighting were on the "[t]wo men that he and his ad- violence. stated was entitled to consider Officer Brosseau versary "got wrestling thing.” Haugen into a fighting as one had been that, fact that just after Officer Brosseau then stated danger- Haugen’s potential scene, assessing factor in Atwood arrived on the he "elbowed ousness, dismissing majority errs keys in his truck.” and went continued, police pulled up. it. "[T]he [Atwood capable generating remains sur- ableness of Officer Brosseau’s earlier be- death”).4 prise, aggression, and pose lief that he would threat permitted of serious harm to others Haugen deposition, As admitted in his escape. attempted high-speed flight vehicular through Haugen suburban streets. admit- suspect’s A criminal fleeing police from ted that he drove as fast as he could when inherently in an automobile dangerous. driveway, he left the that he through drove The National Highway Safety Traffic Ad- the residential streets as fast as his car reports people ministration that 314 were go would gear, third and that he would during police killed pursuits have driven faster if the bullet wound had year last for which I can find a record.5 not made it difficult for him gears. to shift Highway National Traffic Safety Adminis- pled later guilty felony tration, Fatality Analysis Reporting Sys- “eluding,” admitting he drove his vehicle ARF, Fatalities in Crashes Involv- “in a manner tem — indicating a wanton or willful ing Law in Pursuit disregard property for the lives or of oth- Enforcement (2000). total, police Of that two were offi- § ers.” Wash. Rev.Code 46.61.024. That cers, fleeing suspects, 198 were criminal admission, by his own drove his and 114 bystanders. car a manner were innocent indicating “a wanton or Id. disregard willful for Presumably, many the lives ... of oth- more high-speed pur- powerful ers” is evidence of the reason- injuries.6 suits result in serious majority 2002) 4. The ("Even states that (July Officer Brosseau tin 14 conservative esti- was not protect motivated a desire to mates various researchers recalculate the community Haugen's likely from erratic driv- actual number of fatalities between 400 to ing. tape- This is false. In Officer Brosseau's per year.”). 500 deaths interview, police department recorded Bros- protect seau stated that she shot "to majority citing 6.The faults me for these offi- my community fellow officers and the from an statistics, government cial arguing that added). danger.” (emphasis eminent [sic] Supreme rejected Court in Gamer "this kind She then stated that she was concerned for general approach.” Supra statistical "pedestrians and officers and residents in the majority misrepresents 870. The my analysis. added). (emphasis area.’’ In her written not, majority says, I do rely solely as the statement, stated, Officer Brosseau support my statistics to view that Officer During my encounter with it was Brosseau was entitled to use force. obvious wholly that he was in a unstable Rather, rely objective I on the circum- frame of any regard mind. He did not exhibit notably Haugen’s stances—most wild behav- his own I life. considered immediately ior sped away before he in his immediate to all around him and jeep demonstrated to observers that —that every attempt stop made him. Haugen was about to drive with willful disre- added). (emphasis Officer Brosseau’s ex- gard My for the analysis lives of others. does pressed protect concerns were the commu- statistics, depend government on the nity, area, the residents in the and all those merely emphasize which I cite the reason- not, Haugen. around She majority did as the ableness of Officer Brosseau's decision to use implies, limit her people concern to important consequences force and the immediate area. society to our appropri- if Officer Brosseau's Though these statistics demonstrate that fel- ate conduct is condemned. fleeing ons put in automobiles Moreover, public my at serious use of statistics injury, risk of death or is consistent certainly statistics almost with the understate Court's use of the ex- statistics in danger, tent of the due to the lack Garner. See 471 of a man- U.S. at 105 S.Ct. 1694 datory Hill, reporting system. High- (relying John on a Bureau of Justice Statistics re- Speed Dangers, Dynamics, port support Pursuits: "burgla- the conclusion that Reduction, and Risk Law only rarely violence.”). Enforcement Bulle- physical ries involve suggest filled stories I do not marksmen of law are with The annals at will tragic may upon any fire felon chases with ends. States, automobile, merely v. a driver an because the felon is El Centro United van, police flipped leading his fleeing leaving from the scene of a crime or the because him two explosion Rather, that killed and to an felon has violated traffic laws.7 I injured four passengers and that another suggest police probable that where have (Fed. 816, passengers. 922 F.2d 818 teen fleeing to believe a felon drive cause will Cir.1990). Louis, City In v. Mays St. disregard with willful for the lives of oth- ofE.

III, a police from ran into fleeing a driver ers, Supreme the Gamer Court’s decision barrier, and killing passenger one cement permits officers to -use force when F.3d severely injuring eight others. 128 necessary protect public. the Officer (7th Cir.1997). v. 1000 Roach plainly probable Brosseau had such cause Fredericktown, from fleeing a driver here. car collided lost control of his and only Brosseau Officer was concerned car, killing and oncoming himself with possibility with the real that Haugen might seriously others. F.2d injuring a if injury fatality cause serious or even Burch, (8th Cir.1989). a In Helseth v. speed permitted through she him to the light ran fleeing from a red driver in neighborhood his car. Brosseau also truck, pickup killing collided with a possibili- with imminent was concerned passenger, rendering truck’s ty Haugen injure might someone a quadripelegie, driver and serious truck’s Photographs the scene. the record car. injuring children his own ly three (he Haugen “peeled show that out” accel- (en banc). (8th Cir.2001) marks) erated, leaving skid of a visible Bitton, fleeing a driver from In Mason driveway three sides by blocked on houses car, a police lost control of his crossed Directly path garage. and a car, median, oncoming and collided with an containing per- four parked were vehicles killing occupants of both cars. sons, including Only by child. young a P.2d 1361-62

Wash.2d through passageway,8 narrow driving this (1975). judicial These decisions tell house, neighbor’s around the corner of a only deadly police stories of a few tragic (a neighbor’s across a lawn maneuver There been more chases. have thousands accel- Haugen admitted he executed while past. in the And there will be thousands could”) “as as did future, erating quickly [he] if ma particularly more Haugen avoid the cars. Brosseau was prevails, deterring view law en jority’s permitted public. worry protecting right forcement including driving my sary capture, avoid with majority anal- 7. The thus mischaracterizes others, disregard approach the lives of which ysis as “an that would allow officers willful for subsequent- Haugen by his simply flee- own to shoot because he is admission.— — stated, flee, ly As Supra did. Officer Brosseau ing, is about in a vehicle.” or majority's Contrary to the mischarac- at 870. During my with it was encounter terization, I would hold that wholly unstable that he was in obvious fleeing only appears it that a reasonable when regard any mind. did not exhibit frame of He disregard will drive with willful for felon Haugen an his own life. I considered Here, Haugen's wild and of others. lives danger to all around him immediate (which disobeying a actions included defiant every stop attempt to him. made brandishing gun police officer at close pas- fleeing plainly deposition in his described this range) prior to in his vehicle "small, tight space.” sageway steps as that he would take neces- indicated course, through would must relent be shot. She smashed his speed this obstacle seriously injure bystanders or the innocent side driver’s window. his head She beat believed one of Brosseau butt gun. with the of her tried to take She on foot to running were toward the scene keys. Only after Brosseau had Officer her. assist several alterna- attempted less drastic to subdue tives—alternatives failed prong The first of the Court’s she resort to the extreme Garner test is met. Not —did 8,000 vehicle, step shooting Haugen. pound also he suggested in a behaving manner that al- Haugen urges that a less drastic drive disregard he would with reckless ternative would have for Officer been (as of subsequently the lives others permit to him Brosseau to flee his did). man desperate Presented with a tak Haugen urges car. that officers would desperate deadly measures in a ma capture have been able to him another chine, reasonably Officer Brosseau con However, to Haugen recog- time. fails that Haugen posed cluded allowing costs to society nize the of fel- community. of serious harm the threat to flee ons to without constraint. And Aceves-Rosales, States v. 832 See United Haugen explain by fails to what method (9th (“It 1155, Cir.1987) 1157 is indis- F.2d him those officers would have subdued that an puted deadly automobile can inflict harm,” [he cause could] person on a can “before force and that it be used farther (and as our Forrett decision common curiam). deadly weapon.”) (per aas (em- sense) requires. 420 F.3d at prong The second of Gamer test added). phasis depar- reckless met, is because force was nec also people ture threatened the on safety of essary prevent to escaping. from His racing through scene. Deadly is necessary force where there people streets threatened the of safety a less exists drastic alternative is neighborhood. Research indicates “reasonably likely apprehension to lead to flights police vehicular become before he can further cause very dangerous quickly. Fifty percent Richardson, Forrett v. harm.” F.3d of all collisions occur in first two (9th Cir.1997). 416, Here, Officer pursuit, minutes more than and attempted Brosseau several less drastic percent of all collisions occur before subduing Haugen alternative means of be pursuit. the sixth minute of the G.P. shooting fore him. She several called oth Justice, Alpert, Department U.S. Na- officers and a dog er scour the Justice, tional Institute of Pursuit Man- neighborhood for him. him She ordered (1998). agement as he Task Force Report to freeze ran to She Of- his car. chased him. She ordered him ficer Brosseau open correctly the door decided get out and of his was not an waiting option car. She brandished under the cir- gun effectively her him warning that he cumstances.9 — opinion author of majority appropriate The at oral or effective to end the tactic argument asked posed. Shooting Haugen's defense whether Offi- counsel threat Haugen's may cer Brosseau should have shot tires tires not have disabled his car. majority Though escaped endangered to disable his vehicle. still could have —and opinion rely possi- does driving not now this as a with a tire or flattened others— force, ble alternative the use of it importantly, two. More Officer Brosseau perhaps helpful shooting explain why endangered have Hau- would herself others gen’s likely tires Haugen's would not have been an shot at had she tires. ammu- standard, also away preme Garner to race Court’s permitting

Even split. alter- a circuit a reasonable because it creates were in his automobile Sixth, native, fault Officer and Eleventh Circuits all properly Eighth, we cannot hold, held, it in the heat thinking of as I would that officers for not have Brosseau allow “for Judges must justified using deadly the moment. force when are are often police officers fact appears likely felon to drive with fleeing judgments split-second to make forced disregard willful for the lives of others. —in tense, uncertain, that are circumstances County, 205 F.3d Clay Scott v. the amount of rapidly evolving (6th Cir.2000) (holding rea —about necessary particular in a situ- that is sonably a felon an automo shot Connor,

ation.” Graham posed an driving bile when reckless 104 L.Ed.2d 443 safety immediate threat (1989). judge must Officer Brosseau’s We Freland, civilians); innocent Smith v. of a reason- perspective

conduct from (6th Cir.1992) (hold 347-48 scene, from the not officer on able ing police reasonably shot a misde- or her cham- judge a his perspective of he 'fleeing in an automobile when meanant majority effectively ignores Id. The bers. police road posed a threat to officers at a Court, command from the this appeared likely and to “do almost block conduct not measuring Officer Brosseau’s Bone, anything capture”); to avoid Cole v. offi- of a reasonable against the standard (8th Cir.1993) 1328, 1330-33 993 F.2d scene, the standard against cer on the police reasonably shot a (holding that inexpert judgment as to what its own posed a fleeing criminal in a truck when have done under Brosseau should Officer driving travelers on a crowded threat to the circumstances. highway); Capobianco, interstate Pace v. (11th Cir.2002) (hold 1275, 1281 283 F.3d sum, Bros- I hold that Officer would police reasonably shot a felon ing that cause to believe that probable

seau had appeared when he fleeing in an automobile high- a leading police on reckless aggres vehicle likely using to continue his a through car chase residential speed police pursuit). a sively during pose a would neighborhood community threat of serious harm to holdings every circuit Contrary to deadly force was neces- and that the use of issue, majority holds to consider escape. I would hold sary prevent to felon’s that an officer violates shooting Haugen Brosseau’s Officer deadly rights by using Fourth Amendment Haugen’s Fourth Amend- did not violate dangerous vehicular prevent force to rights. ment can often eliminate flight “officers because chase danger high-speed of a or reduce holding objec- majority’s contrary The a chase.” Su- discontinuing or by forgoing it flouts the not because Su- tionable automobile, killing injur- ground or beings, off the or designed disable human nition is Parent, Had Officer ing automobiles. When Po- to disable the innocent. See Rick Haugen’s tires at close ("Un- Shoot, Brosseau fired Magazine, Oct. 2000 lice ricocheted, might range, have kill- her bullets ‘Hollywood,’ depicted by scenes like the bystander. injuring her or an innocent or precarious 'shooting can be a out of a tire’ penetrated a bullets Even if Officer Brosseau’s tire, event.”). Officer Brosseau dangerous and necessarily would not have the bullets Haugen's tires. This not to shoot was wise harmlessly bullets could to rest. The come alternative at all. "alternative” was no ricocheting trajectory, continued their have pra majority at 870.10 The believes that criminal’s effort to shift the po- [to blame permit officers should felons to ... is not one that legal system lice] speed away unpursued rather than at- accept.”). can (“[Offi- tempt stop them. See id. at 869 attempts majority justify The its de- could either have cers] discontinued a parture precedent by reasoning that if it dangerous, chase became too or could Officer Brosseau’s fellow officers forgone entirely.”); have a chase id. at 870 might have decided to Haugen escape let (“[A]n officer must forego sometimes or jeep unpursued that, in his for this discontinue force and allow sus- alone, reason Officer Brosseau did not pect escape.”). majority The slights the probable have cause believe that Hau- important law enforcement interests gen’s vehicular flight pose would See,

pursuing fleeing e.g., felons. Dono- to others. There are problems several Milwaukee, van v. majority’s with the reasoning. (7th Cir.1994) (“Police may, First, majority implies, contrary to to, ought pursue fleeing suspects, and evidence, the record that Haugen would suspects present where those a threat of have driven safely carefully away from harm, physical serious either to the offi- scene he had not been followed others, it is not constitutionally cer[s] police squad cars. But it is unrealistic to prevent escape unreasonable to by using conclude that deranged and de- force.”) added). (emphasis felon, fiant suddenly would have been majority neglects the fact that if police are transformed into a model citizen and care- pursue, forbidden to many then more sus- ful driver the away moment he drove from pects will flights flee—and successful not police scene and did not hear sirens in only will reduce the number of crimes pursuit. And even if Officer Brosseau had solved but also will create serious risks for believed that her fellow officers would not passengers bystanders. Mays See pursue vehicle, Louis, Brosseau still E. St. 123 F.3d (7th Cir.1997). would Moreover, probable have had cause to believe majority that Haugen speed would by away errs from putting police the onus on end scene pursuit with willful by letting and wanton escape, disregard the felon Indeed, safety. rather others’ felon, than on the even fleeing who at all before police squad chase, was, times the power gave Haugen has to avoid cars injury to by admission, by himself and his own halting “standing others as the law on the requires. See at (holding gas” id. that in the driveway, accelerating “as police pursuit officer’s fleeing quickly could,” “small, of a felon in as [he] within a an played automobile a “causal in tight space,” role” an a fact that confirms the rea- wreck, ensuing not “but the kind of cause sonableness of Officer Brosseau’s earlier recognizes the law culpable.... as concern safety. [A] about others’ Rather, majority opinion, More candid than the ous. controlling as I understand the Judge law, separate concurring opin- Reinhardt’s high-speed if a nondangerous chase of a majority’s be, ion holding becomes, restates the explicit felony suspect in danger- would or states, ous, concurring opinion terms. The join "I the officers must terminate the chase. In court, fully Judge words, opinion in Fletcher's for the other the chase itself cannot create the understanding on the may justifies officers shooting suspect....” against use an Supra otherwise non- majority opinion at 876. The never dangerous felony suspect simply Judge because a separately disavows Reinhardt’s stated view, which, suspect, high-speed event, chase of that or other- in animates the ma- wise, danger- would become or jority opinion’s does become analysis. (with split by misapplying a circuit Having created Second, implies no majority record) ner, law Washington majority downplays its basis Gar pro- policy Department Puyallup departure from our sister circuits’ deci (or, least, discouraged) Officer at hibited ap by urging sions those decisions from pursuing Brosseau’s fellow proved force in circumstances Although squad in cars. their presented very different from those here. Washington may have to in police officers Although every presents unique case person injured who is compensate a facts, in the facts our sister circuits’ deci conduct while negligent officers’ in im sions are similar the facts here Bitton, felon, Mason v. fleeing pursuing Sixth, portant respects. Eighth, In the 321, 584 P.2d 85 Wash.2d cases, in and Eleventh Circuit as this (1975), prohibit law does not Washington case, police in fleeing from in a felon pursuing automobile, a machine that can be ex majority errs effective- vehicle. So the tremely dangerous operated when not Brosseau was re- holding that Officer ly great regard with care and due for the that her fellow officers to assume quired Scott, public safety. 205 F.3d at 871- See squad in chase their would not 344; Cole, 72; Smith, 954 F.2d at away would drive cars and 1330; Pace, at 1277. In F.2d at 283 F.3d unpursued. carefully, safely, and cases, case, in those as this the felon re Third, fellow officers Officer Brosseau’s Scott, fused orders to halt. See cars, in squad their chased fact Smith, Cole, 871; 344; 954 F.2d at was correct assum- so Officer Brosseau Pace, 1330; In F.2d at 283 F.3d at 1277. pursuit would occur. Of- that a case, cases, as in this the felon was those was entitled to consider the ficer Brosseau behaving desperate in a and unstable police pursuit of that potential danger Scott, 872; manner. 205 F.3d at posed to oth- assessing danger Haugen Cole, Smith, 344; F.2d at 993 F.2d at ers. Pace, 1330-31; 283 F.3d at 1277-78. majority apparently prefers, as a cases, case, ap those as this felon police departments policy, matter of steps to peared likely to take extreme pursuing fel- discourage their officers 872; Scott, 205 at capture. See F.3d avoid majority If had its ons in automobiles. Cole, Smith, 344; 993 F.2d at 954 F.2d at no setting policy, in law enforcement way 1331; Pace, Most 283 F.3d at 1277-78. a felon at pursue ever would police officer case, cases, in as in this importantly, those surrender, speed; police would high with appeared likely to drive the felon felon, given who would be rather than others. disregard for the lives of willful view, escape. my pass easy to an a free Smith, 872; Scott, at 954 205 F.3d policy majority by allowing errs its Cole, 1330-31; 344; at 993 F.2d at F.2d corrupt analysis its of the preference to Pace, at 1277-78.11 283 F.3d community by Haugen posed to the our majority attempts distinguish deranged in a mental a vehicle holdings ground on the sister circuits’ state. Cole, stop sign); (suspect noting suspects at 344 F.2d ran

11. It is worth Cole, Scott, Smith, through suspected (suspect toll and Pace were drove 993 F.2d at 1330 dangerous Pace, than less serious and less paying); crimes 283 F.3d at booth without battery burglary and of which night (suspect driving without head- 1276 Scott, F.3d at 871 suspected. See was lights). Smith, sign); (suspect ignored a traffic police deadly in those cases used force to sues of material fact existed as to whether dangerous end a high-speed flight, rather proper force was when “there [was] prevent dangerous high-speed than to suspect] no evidence that imperiled [the flight from But commencing. our sister anyone (except himself and willing pas- his not, majority implies, circuits did as the senger) [by] ... driving motorcycle his require officers wait until through empty city streets the wee after suspect endangered has the lives of oth morning.” hours of the 17 F.3d at 951. Here, contrast, using deadly ers before force. Nor could Haugen’s own testimo- they have so held. The ny-describing Court’s his attempted high-speed requires Gamer decision courts to flight deter through a suburban residential probable mine whether have cause neighborhood jeep Sunday on a af- pose to believe a will threat of ternoon-shows that Haugen’s conduct physical future, serious harm in the not imperiled would have many people, both suspect posed whether the a danger such on the scene and in the community, 11-12, Garner, in the past. See 471 U.S. at Officer reasonably Brosseau had not inter- S.Ct. vened. At the time Officer Brosseau shot Hau- In Vaughan, the Eleventh Circuit held gen, Haugen’s yet vehicle had not begun to genuine issues of material fact existed objective move. But an observer would as to whether proper force was reasonably have concluded that when warning shot without a fleeing embarking was desperate, potentially on a suspect. 1027, 1031, 1031 n. deadly, high-speed flight through vehicular (11th Cir.2001) (vacated by 536 U.S. residential neighborhoods. That 122 S.Ct. (2002), 153 L.Ed.2d 830 only beginning plan to execute his reinstated supplemented on remand at driving disregard with willful and wanton (11th Cir.2003)). Here, mean, for the lives of the innocent does not contrast, undisputed it is that Officer Bros- as the majority suggests, that Haugen did seau effectively warned that he pose a"significant threat of death or would be shot if he did not submit physical serious injury" to others. Noth- arrest. officer, ing requires like some Fourth analysis Amendment requires a modern-day Epimetheus, to disregard pro- delicate balancing of individual and societal spective danger and dangers attend interests, Summers, Michigan v. passed. that have good It was that Bros- 700 n. 69 L.Ed.2d seau acted when she did. (1981), 340 and an individual’s interest in Contrary majority’s to the suggestion, his or her life is of importance. unmatched neither the Seventh Circuit’s Donovan de- But when a felon threatens innocent lives cision nor the Vaughan Eleventh Circuit’s in a attempt base to escape responsibility v. Cox decision support major- lends crimes, for his or police her officers do not ity’s novel holding. Both Donovan and act unreasonably using in deadly force to Vaughan are my consistent with view-com- protect community. the I would hold that pelled by the Supreme Court’s Gamer de- Officer Brosseau did not violate Haugen’s cision police that can use force Fourth rights Amendment and that the when necessary stop fleeing felon who district court properly granted summary appears likely to drive with willful disre- judgment in her favor. gard Donovan, for the lives others. the Seventh Circuit held that genuine is- ^[*] sH ^[*] # ^[*] that I not view the facts in the certainly states do purpose, the perhaps With effect, departure I obscuring light Haugen. its most favorable to But the not stan Supreme Court’s Garner only from the have relied on facts does not precedents, sister circuits’ and our dispute, compel dard facts that the conclusion deploys array of rhetorical majority the Haugen’s fleeing his vehicle would that, collectively, individually and devices posed a threat of have death or accentuate the weaknesses serve physical injury serious to others. rationale. majority’s

the majority’s phrasing The artful and over- First, implies that its hold majority the not can- wrought lucubrations should with those of our sister ing is consistent majority’s departure the from obscure other court has ever come But no circuits. Supreme Court’s and our sister cir- majority holds holding, as the close to Acting police law. cuits’ somewhat as may never use today, police commissar for the western states and ter- public from the protect jurisdiction, than ritories our rather as a flight reckless posed by felon’s court, majority imposes constitutional Scott, 205 F.3d at in a vehicle. See po- and unworkable restrictions on serious reasonably used (holding bring lice officers’ efforts to criminals in a stop suspect fleeing deadly force to community. I justice protect and to vehicle); Smith, F.2d at 347-48 join majority in that effort. cannot (same); Cole, (same); 993 F.2d at 1330-33 (same). Second, Pace, F.3d at 1281 police officers’ majority implies that II pursue Haugen their decision to under legality was of dubious

cruisers majority’s holding that Officer not; law. But it was such Washington Haugen’s rights is Brosseau violated permissible, though they must chases are wrong not as as the wrong. But it is Mason, due care. See be conducted with were majority’s holding rights those Third, majority P.2d at 1363. at the time of the “clearly established” judi take properly that we cannot states shooting. It should be undeniable statis government cial notice of the official did not violate Officer Brosseau dangerous emphasize I cited to tics “clearly rights and so was established” by felons from high-speed flights ness of qualifiedly immune from suit. See, e.g., But is incorrect. police. this Qualified immunity protects “all but the Sinclair, Corp. v. Chastleton knowing incompetent or those who plainly (1924) 548, 44 68 L.Ed. 841 S.Ct. Malley Briggs, ly violate the law.” (“[T]he J.)

(Holmes, may ascertain Court 89 L.Ed.2d U.S. merely it fit fact that as sees (1986). If “it would be clear to a a rule of ground laying down that his conduct was reasonable officer law....”). Fourth, majority states confronted,” in the situation unlawful reject that the Court Gamer apply. immunity does not qualified then general kind of statisti dissent’s] ed “[the 202, Katz, 194, 121 v. Saucier I at 870. But approach.” supra cal (2001). if, But 150 L.Ed.2d S.Ct. ap any “general not use statistical do hand, “officers of reasonable on the other and, event, proach,” issue, disagree on competence th[e] could precisely used statistics in Gamer Court recognized.” Malley, immunity should be at way I use them here. See U.S. 341, 106 1092. Fifth, at S.Ct. majority U.S. 105 S.Ct. 1694. incomp plainly not Brosseau was Officer America, STATES of knowingly violate UNITED Nor did she

etent.12 Plaintiff-Appellee, law. Police of reasonable com officers disagree could whether petence fact, justified.13 ap federal ZUNO-ARCE, Ruben Defendant- competence courts of do peals reasonable Appellant. disagree judges, on the issue.14 And un police officers,, luxury have the like No. 98-56770. studying the issues in the constitutional Appeals, States Court of United chambers, the benefit calm of their with Ninth Circuit. lawyers’ hearing oral briefing, and after Knapp, 319 arguments. See Ganwich v. and Submitted Feb. 2000. Argued (9th Cir.2003) (“[J]udges F.3d Aug. Filed 2003. expect police should not read time, spare Reports States United their study law treatis arcane constitutional

es, analyze or to Amendment de Fourth

velopments preci professor’s with a law

sion.”). majority Brosseau holds Officer

an unreasonable standard. Officer Bros- commended, should not

seau con-

demned, courage and de- acting with protect public from a

cisiveness

dangerous deranged felon mental embarking potentially deadly

state on a police. I

flight respectfully dis-

sent.15 Rather, say 12. I would Brosseau Officer violation in circumstances to those similar very competent. Scott, 877; presented here. See at Cole, 1330-33; Pace, F.2d at Indeed, Puyallup Department

13. Police concluded, Review Firearms Board after investigation, that Officer Brosseau's actions dissent, my 15.Despite disagree with I do not Washington did violate law or de- opinion, majority Parts II.B. and II.C. of the partment policy. affirming summary judg- the district court’s Puyallup ment in favor of the and the disagree majority 14. The does not with Department, Puyallup reversing my dissenting majority views. The also dis- agrees Haugen's the district court’s dismissal of state with the considered wisdom of the Sixth, Circuits, II.A., Eighth, disagree law claims. I and Eleventh which with Part majority's analysis. have held there was no Fourth Amendment Fourth Amendment

Case Details

Case Name: Kenneth J. Haugen v. Rochelle Brosseau, Puyallup Police Department the City of Puyallup

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 4, 2003

Citation: 339 F.3d 857

Docket Number: 01-35954

Court Abbreviation: 9th Cir.