*1 Supreme In the has to evaluate Missouri Court of obiter dictum. an expression how, if reasoning I find no court’s and decide appeal, of this this circumstances all, Rule 29.16 similar rule de- reasoning, exists. or some for such support opt-in mechanism signed to effect a valid the court on issue before The overall require- be drafted meet the basic could Missouri whether the State of appeal was by section as construed this ments of Rule Supreme Court through Missouri court. requirements of met the several 29.16 has expedit necessary opt-in obligation section 2261 I this has an panel believe cases. penalty habeas handling questions. ed of death both comprehensibly address opinion expressed made or I Any Accordingly, remark dissent from decision to this stat directly rehearing deals with deny “attorney court that to decide the question raised, not dicta. utory is compensation” construction briefed and ar- issue way be no Any litigation. such statements would in this gued query collateral to the incidental or adopted
court—does the mechanism meet of Rule 29.16
through promulgation 2261? requirements divers of section analysis proper question
Under not, opt-in, there has been an or
whether no less attorney compensation prong important than the offer of no more HAUGEN, Kenneth J. Plaintiff- prong. Both formulations were counsel Appellant, totally Hall rele under attack and were question vant the court—has to the before v. opt-in of Missouri created a valid State BROSSEAU; Puyallup “ Rochelle Police under section 2261? “When mechanism City Department; Puyallup, a deci independent support two reasons Defendants-Appellees. sion, can be considered obiter dic neither ” v. Addressograph-Multi Sutton tum.’ No. 01-35954. (8th 115, graph Corp., 627 F.2d 117 n. 2 Appeals, United States Court of Cir.1980) v. (quoting Kushner Winterthur Ninth Circuit. Co., (3d Ins. Swiss 408 n. Cir.1980)) (citations omitted); Brazzell cf. Argued and Submitted March 2003. States, United 1357 n. 4 Filed 2003. Aug. (8th Cir.1986) (holding language Amended Dec. prior case was dicta but instead was a “binding holding”). alternative Randy Loun, Tyner, W. Loun & Brem-
A second conceivable reason is erton, WA, plaintiff-appellant. for the compensation procedures evaluation of Mary Keating Ann McConaughy, Buck- already the court has invalidated the after WA, McCormack, Seattle, lin & for the procedures offer of counsel would some- defendants-appellees. to writing how be tantamount state rules procedure for the Missouri true, Court. If this be it is no less true
than for the court’s on the offer of decision instances, question.
counsel both *2 FLETCHER, REINHARDT, escape police may felon never use W. Before — deadly protect public force to from GOULD, Judges. Circuit by danger posed a felon’s reckless A. Opinion by Judge WILLIAM flight police from in a vehicle. The ma- FLETCHER; by Judge Concurrence jority’s sweeping holding, prom- which REINHARDT; by Judge GOULD Dissent easy escape any ises an to felon willing by to threaten innocent lives driving AND AMENDING OPINION ORDER recklessly, is indefensible as matter of AND DENYING REHEARING law and and it policy, conflicts with our AMENDED OPINION holdings police sister circuits’ offi- cers do violate the Fourth Amend- ORDER deadly stop ment force using August opinion, This court’s filed fleeing appears likely felon who to drive as F.3d is amended follows: [339 857] disregard an automobile with willful full para- 1. The fifth sentence the lives of others.l” op. 10604 F.3d at graph slip [339 868] on replaced following are with the sentences: that reads: majority’s I accept implicit “Nor can had not called Subido and “Brosseau suggestion police can that —because re- her, and there is no Pashon to assist danger high-speed duce the of a chase they running give indication by letting escape police may a felon — deleted. her aid.” is deadly protect never use force to by a public danger posed from the fel- in the first full 2. The second sentence flight police on’s reckless a vehi- slip op. on F.3d paragraph [339 majority’s sweeping position, cle. The that now reads: 870] easy escape an promises which “But because officers can often eliminate willing felon to threaten innocent lives high-speed of a danger or reduce the by driving recklessly, is indefensible as a discontinuing a by forgoing chase and it policy, matter of law and conflicts chase, reject approach we an would holdings that with our sister circuits’ suspect simply allow officers to shoot a police officers do not violate the Fourth flee, fleeing, or is about to because he is by using Amendment force to in a vehicle.” likely stop fleeing appears felon who replaced following is with the two sen- drive an automobile with willful disre- tences: gard for the lives of others.l” “But circumstances of particular text, 1 remains in the edited as Footnote reject are critical. each case We shown. approach that would allow officers The two in the third full first sentences he is suspect simply shoot a because paragraph slip op. on F.3d 881- [339 flee, fleeing, or about to in a vehicle.” is that now read: 82] 4, 2003, dissent, August filed “Contrary holdings every cir to the amended as follows: issue, majority cuit to consider The second and third sentences fleeing that an officer violates a holds slip op. full paragraph [339 first by us rights felon’s Fourth Amendment that now read: 876-77] prevent dangerous ing accept majority’s holding “Nor can I can of flight vehicular because ‘officers of a that —because can reduce the dan- ten eliminate or reduce the or discon- by letting high-speed forgoing chase ger high-speed of a chase any legal ... is not one police] [to Supra [870].10 at 10608 a chase.’ turning accept.”), can system believes are pursued forgone them. See fleeing felon’s majority holds that it became by using by forgoing it.10 The reduce the cuit to consider go or a “Contrary to should could gerous [870] suspect replaced majority believes (‘[A]n either discontinue permit vehicular a chase rather too with the danger of a id. officer must escape.’).” have discontinued the Fourth Amendment felons dangerous, at 10605 entirely.’); id. force to than flight; deadly force analogous holdings an officer violates following sentences: majority believes that officers can *3 attempt high-speed chase [869] speed sometimes fore- prevent or could have appears issues, (‘[Officers] every cir a chase and allow away un- at 10607 to a dan rights stop that is now The [339 letting the felon the the the onus problems with Moreover, the cause system ensuing officer’s others automobile [to [A] first full F.3d at police] power fleeing felon, who criminal’s effort supplemented id. at 1004 the law by halting as the can pursuit wreck, on 882] to avoid ... played accept.”). paragraph police recognizes currently reads: is not one that majority of a “but escape, (holding to read: to end a injury to himself and majority’s reasoning. “causal to shift the blame fleeing felon in an There are several on at all times errs as rather than on the slip op. that law the kind culpable.... role” by putting pursuit any legal requires. a police in an has by justify its de- majority attempts to permit felons police officers should by reasoning precedent parture from rather than away unpursued speed - offi- police fellow that Officer Brosseau’s stop Supra them. attempt let (‘[Officers] have decided to might have discontin cers could either that, dangerous, too and escape jeep unpursued chase if it became in his ued a entirely.’); forgone alone, a chase or could have for this reason (‘[A]n sometimes officer must id. at-- probable cause to believe did not have deadly force and forego or discontinue flight would vehicular escape.’).” allow a are to others. There pose majority’s with the problems in the edited several 10 remains Footnote number text, reasoning. as shown. appearing slip op. on
The last sentence in its be deleted paragraph This should currently F.3d at 881] 10628 [339 entirety.
reads: as amend- opinion and dissent With Moreover, by putting errs ed, Judge W. Fletch- Judge Reinhardt and pursuit to end the the onus on rehearing deny petition for voted to er than escape, rather letting the felon rehearing en banc. petition for has felon, who at all times fleeing grant petition both Judge Gould voted injury to himself and power to avoid rehearing en petition for rehearing for by halting requires. the law others as banc. (holding See id. at 1004 for a vote on judge A of the court called in an fleeing of a felon pursuit
officer’s
A
rehearing en banc.
vote
petition for
in an
played
automobile
a “causal role”
taken,
majority of the active
and a
wreck,
the kind of
ensuing
“but
to vote for en
of the court failed
judges
culpable....
recognizes
the law
as
cause
35(f).
P.
rehearing.
R.App.
Fed.
banc
effort to shift the blame
criminal’s
[A]
peti-
reasonable officer to believe that
rehearing
for
and the
petition
behavior,
banc,
desperate
based on his
dan-
rehearing
August
en
filed
tion for
gerous to others. Officer Brosseau had
are DENIED.
neighborhood just
been
called to.
TALLMAN,
Judge, with whom
Circuit
day
report
that Haugen
before
take
KOZINSKI,
Judges
Circuit
belonging
had
stolen tools
one Tambu-
GOULD, BYBEE,
O’SCANNLAIN,
rello, his former business associate. After
join, dissenting from our
CALLAHAN
taking
report,
this
Officer Brosseau was
rehearing
court’s denial of
en banc:
informed
dispatcher
felony
outstanding
no-bail warrant
*4
banc,
case en
By declining to rehear this
drug-related
charges.
offenses and other
the immu-
recognize
the court has failed to
nity
rightful-
that law enforcement officers
day,
dispatched
The next
they
ly
protect
them when
deserve
stop a
in
Haugen’s
fight
prog-
house to
and
split-second life
make reasonable
and
In
ress
Tamburello.
between
so,
In doing
in the field.
death decisions
attempting
the course of
to take
grave injustice
the court does
custody,
into
Brosseau was confronted
Rochelle
officers in our circuit like Officer
intent on escaping cap-
with known felon
Brosseau,
wrongfully
who has been
denied
actively
ture.
evaded arrest
immunity from suit after she em-
qualified
hiding
neighbor’s yard;
in the bushes
stop a combative
ployed escalating force to
get
away;
he ran to
into his car to drive
respect-
I
fleeing
and determined
felon.
orders to
defied Officer Brosseau’s verbal
fully
denying
dissent from the order
re-
attempts to detain
stop; he resisted her
hearing en banc.
employed
degrees
him
of
when she
lesser
window,
by shattering
force
the car
at-
properly
as-
panel
fails
him
tempting
grab
keys,
hitting
and
actions when she
sess Officer Brosseau’s
contin-
gun.
with the butt of her
Yet he
qualified immunity
Haugen’s
sought
pointed
gun at
ued to flee even as she
§
In
42
1983 action.
an excessive
U.S.C.
would leave no
ease,
him.
behavior
we must examine whether
in the mind of
reasonable officer
doubt
objectively
officer’s actions are
reasonable
chase was moments
high-speed
that a
light
of what she faces
the field.
Connor,
away.
386, 397,
109
Graham v.
U.S.
(1989).
1865,
relevant facts and circumstances are those
objec-
perception of these several facts was
acts,
at the time she
knovm to the officer
that it
tively unreasonable.
It holds
knowledge
contemporaneous
on her
based
to think
unreasonable for Officer Brosseau
Rutherford, 272
of the facts. Deorle v.
Jeep
that if
drove off
Chero-
(9th Cir.2001).
By con-
F.3d
kee,
endanger
occupants
he would
trast,
majority’s opinion displays
panel
driveway,
in the
her fellow
other vehicles
sensitivity
to the
no
whatsoever
difficulties officers,
immediate
people
and
in the
making
police officers face when
life
Hau-
majority accepts
neighborhood. The
situations,
as the
death decisions
tense
easily exit
testimony that he could
gen’s
us we must. Gra-
Supreme Court tells
injury to
driveway with nc risk of
ham,
396-97,
residue rejection Hau- majority’s Given determined forensic scientist and the statement, we are left with Bros- gen’s object hit another before that the bullet testimony and that of the other seau’s tellingly, photos Haugen. Most it struck Brosseau testified that she eyewitnesses. hole in Jeep show bullet Haugen’s intentionally at the back of shot asked side window. When the rear away. to drive Her Jeep as he started window, in the bullet hole about physi- corroborated statement was something I responded: “That’s addition, eyewit- all the *6 cal evidence. dis- parties do not explain.” can’t just was agreed Haugen nesses that start- only shot was fired. Be- pute that one driveway when ing pull to out of the unmistakably indi- the evidence cause light Even taken the Brosseau shot. that Brosseau shot cates that Haugen, to it is clear most favorable window, accept ive through the rear side far, very may not have moved Jeep the intention- statement that she Brosseau’s moving. all accounts it was Given but Haugen through that window ally shot majority’s earlier evidence and the this Haugen’s speculation rather than testimony, is rejection Haugen’s of accidentally discharged inside gun the majority to contradictory for the plainly Jeep. the during fired later assert that the shot was Haugen’s struggle with Officer Brosseau (emphasis at Haugen, 339 F.3d 861-62 off. began he to drive added). before immunity later, wrong deny qualified to majority It was just pages Yet a few looking Rather than Brosseau. Jeep claim that the dismisses Brosseau’s as Brosseau at the facts and circumstances “driving in an erratic manner” was at the time of reasonably perceived them says that Brosseau noting “Haugen majority goes great shooting, Jeep him even moved. shot before the benefit lengths explain he not According Haugen, not —with manner,’ ways which Officer hindsight small driving ‘in an erratic he was —the inaccurate. perceptions were majority Brosseau’s driving at all.” Id. at 867. But may That be the case. “[ajceepting the version of then states that an officer’s errone- Hau- tells us that even favorable to Court disputed facts most amount does not perception belief Brosseau’s assertion ous gen, we do credit objec- if it manner,’ violation to a constitutional driving in an erratic that ‘he was Graham, occasionally fixing cars. At some and U.S. tively reasonable. soured, and Hau- point, relationship their 1865. Because 109 S.Ct. partnership. gen Bros- decided to dissolve the how Officer fails to demonstrate 20, 1999, of his objectively February unreason- On he took some actions were seau’s shop. Tamburello able, immunity from tools from Tamburello’s should receive and wanted retribu- wanted the tools back Haugen’s suit. station, and, in tion. He went to the right: po- “A and Gilbert Sullivan an interview with Officer Rochelle Bros- happy one.”1 The liceman’s lot is not seau, burglar- reported them opinion will make court’s erroneous also contacted shop. ized his Tamburello unfair- it demonstrates the happier, no as Riddles, Haugen’s moth- neighbors second-guessing split- judicial ness of er, they call him should requested decision-making in tense circum- second they Haugen at his mother’s house. see respectfully I dissent from the stances. this en banc. not to rehear case decision Nocera, Deanna Haugen, girlfriend daughter went to Nocera’s OPINION night February mother’s residence the they laundry spent where did some FLETCHER, Judge: Circuit W. night. morning, Haugen The next be- 21, 1999, February Officer Rochelle On gan spray-paint Jeep his 1984 Cherokee Puyallup, Washington, Po- driveway. his mother’s He had a war- Haugen in Department lice shot Kenneth apparently rant out for his arrest and the back as he tried to flee from thought might driving evade detection §a suit in his vehicle. filed yellow Jeep. than a It rather white alleging district court a violation of his windy morning, and the Riddles com- granted rights, constitutional and the court plained spray paint judgment to summary Brosseau. Constru- Hau- blowing yard. into their When ing light favor- the evidence most gen stop, refused to the Riddles called inquire we whether Bros- able *7 Tamburello. Tamburello drove with Matt violated seau’s use the Atwood to mother’s house where and, did, Fourth if it whether Amendment they Haugen. Haugen began to accosted qualified immunity. she is entitled to We him, away, caught run but Tamburello evidence, construed, conclude that the so ground, began threw him to the shows Brosseau’s conduct violated the him up. Haugen begged beat and Nocera Amendment, and, further, Fourth that her and, stop, being per- after Tamburello clearly conduct violated established law by punches, Haugen suaded several governing the use of force as set agreed give the tools back. Tamburello Garner, forth in Tennessee U.S. forcibly Haugen and Atwood then led into (1985). 105 S.Ct. 85 L.Ed.2d We pickup planned to drive to stor- grant therefore reverse the district court’s age facility Haugen where had stashed the summary judgment. Riddle, tools, having but Irene seen the outside, already brouhaha dialed 911. Background I. Haugen Kenneth and Glen Tamburello After her interview with Tamburello on 20th, together selling drugs February Brosseau had business Sullivan, (The Song) 1. William S. Gilbert & Arthur S. ment Policeman’s in The Pirates of (1879). Engaged Employ- When a Felon’s Not in His Penzance yard. Subido told Brosseau to circle felony no-bail there was learned front, on around the and as Brosseau rounded Haugen’s arrest out for based warrant house, morn- Haugen fifty The next saw about feet other offenses. drug and stop a traffic running Jeep. the midst of toward his while in ahead of her ing, report Brosseau heard nearby, Jeep into the and tried to Haugen got house. She Haugen’s mother’s ruckus at Jeep ran to with start it. Brosseau arrived and when she responded quickly, him handgun drawn and ordered her pro- in the and Atwood were Tamburello Haugen keys, with his stop. As fumbled pickup. Haugen into the getting cess hit side window sev- Brosseau the driver’s advantage of the distraction Haugen took and, on the handgun, eral times with her arrival and broke by Brosseau’s caused try, third or fourth she broke the window. (cid:127) ran captors. He away from his would-be mace and a baton but did Brosseau had house, his mother’s driveway, past up the Instead, she tried to reach not use them. gave backyard. Brosseau and into keys, just after grab the car to but called steps and then chase for few window, through she broke help a K-9 unit to including back-up, starting Jeep. Either be- succeeded half hour or Haugen. Over the next locate pulled away, just after he fore so, officers interviewed Brosseau and other (the conflicting started to do so evidence is up and set witnesses still at the scene shot him in the point), on this for the search. perimeter a containment position when she back. From Brosseau’s K~9’s efforts interfering with the To avoid her, . shot,. in front of Haugen was scent, the officers to locate Nocera, Nocera’s beyond Haugen were and Atwood to re- Tamburello instructed Tamburello, and Atwood. Bros- daughter, and instruct- pickup main in Tamburello’s “aware of the back- seau said that she was daughter to remain and her ed Nocera nonetheless be- ground exposure,” but she parked in the pickup Honda. The a safe shot because she lieved she had driveway. The Hon- in front of the street stopped would be thought the bullet in front of driveway in the parked da was reaching the engine block before Jeep’s driveway was in the Jeep. Jeep stop, bystanders. Because did Honda and the street and was facing the him, but she had missed Brosseau believed the left. angled somewhat to not take a second shot be- Brosseau did meanwhile, hid various too thought the risk became cause she around the and other locations bushes away. to drive great began as he to watch what neighborhood as he tried Haugen’s back near bullet entered Ap- at his mother’s house. happening *8 lodged in his blade and the left shoulder on Haugen knocked seeking help, parently wound, Haugen man- Despite chest. Rounds, a Margaret the back door of words, gas” on the aged, in his “stand No the street. neighbor who lived down driveway, across of the and to drive out answered, Rounds Haugen so left. one onto the street. neighbor’s yard, and home and was aware situa- was at tracks show tire Photographs the record listening she had been tion outside because displacement driveway due on scanner, had no inclina- but she escaped, some of Haugen After gravel. Instead, she called help Haugen. tion to injury Haugen’s chase. gave the officers that there was a man police and said he him to drive. Once it difficult for made two other backyard. Brosseau and the shot, one he used he had been foot, Pa- realized Subido and officers on Officers the other to (with wound and K-9), hand to hold the ran to Rounds’s back- shon deprived him of his Fourth got Puyallup never According to he drive. rights. alleged He also gear and never drove Amendment past third Jeep per Washington miles hour. Be- on tort forty-five causes of action based faster than difficulty breathing summary long, Haugen law. The defendants moved fore road, the side of the granted over to court pulled judgment, and the district appre- that, out. He was passed if the where motion. It held even their hospital. and taken to the hended under shooting constituted excessive force Amendment, Brosseau had not the Fourth of the shoot- precise circumstances clearly right and was violated a established Hau- disputed. deposition, In his ing are by qualified immunity. protected therefore may gun that he believed the gen testified also held that The district court accidentally while Bros- discharged that pointed practice official had not reaching through the driver’s seau violation, to a constitutional and so he led Brosseau, him. on grappling with window against pursue could not suit hand, says the other she shot Fi- City Puyallup. or the department Brosseau, According to she intentionally. that could not nally, the court held away from the driver’s stepped back and injury pursue state tort claims because his Jeep moving started window once the during the commission of a felo- occurred through the rear side win- fired one shot ny. dow on the driver’s side. facts, typi- we parties dispute
When grant review a Haugen appealed. We cally accept nonmoving party’s version summary judgment de novo. Oliver v. summary judgment mo- ruling (9th Cir.2002). when Keller, 623, 626 case, however, accept tion. this we that shot Hau-
Brosseau’s statement she II. Discussion gen intentionally. gun shot residue No A. Fourth Amendment Claim clothes, Haugen’s
was found on and the Against Brosseau forensic scientist determined that the bul- object hit Hau- let another before struck argues that she is enti- Officer Brosseau gen. tellingly, photos Haugen’s Most qualified immunity Haugen’s tled Jeep show a hole in the rear side bullet Following Fourth Amendment claim. window. When asked about the bullet Katz, ruling Court’s Saucier v. window, responded: hole L.Ed.2d 533 U.S. something explain.” I can’t “That’s (2001), two-step analy- we undertake parties dispute do not one shot qualified asserts im- sis when defendant was fired. Because the evidence unmis- munity summary judgment. in a motion for takably Hau- indicates Brosseau shot question: first face “this threshold We window, gen through the rear side we light Taken most favorable to the in- accept Brosseau’s statement injury, party asserting the do the facts tentionally Haugen through shot win- alleged show the officer’s conduct violated dow than speculation rather right?” Id. at constitutional *9 gun discharged accidentally the inside the 2151. If we determine that a consti- S.Ct. Jeep. violated, right tutional has been we then step and “ask whether gunshot recovered from the and move the second right clearly 42 the established” such filed suit district court under U.S.C. Brosseau, claiming Puyall- § that the that “it would be clear to a reasonable 1983 unlawful in up City and the of officer that conduct was Department, [her] Police
381 harm, deadly may force be physical Id. at ous confronted.” [she] situation the necessary escape, if and prevent used 201-02, 121 2151. S.Ct. if, feasible, warning has where some Right Amendment given. 1. Fourth been 11-12, at 105 1694. Under Gar Id. S.Ct. the guarantees Fourth Amendment The ner, deadly justified cannot be based force in their to be secure people the
“right of
may
An officer
merely
slight
on a
threat.
effects,
houses,
papers,
persons,
necessary
deadly
not use
force “unless
is
and sei
unreasonable searches
against
escape
the
and the officer has
prevent
has held that
Supreme Court
zures.” The
suspect
to believe that the
probable cause
use
prohibits the
Fourth Amendment
the
of death or seri
poses
significant
threat
in the course
by police
force
of excessive
injury to the officer or oth
physical
ous
criminals. See
suspected
apprehending
3, 105
at
ers.” Id.
S.Ct.
394-95,
Connor,
386,
490 U.S.
v.
Graham
(1989). In
1865,
use F.3d justified where a deadly force was deadly prevent force to use of arrest, violently physically resisted suspect felony suspects, whatever of all escape officer, offi grabbed attacked circumstances, constitutionally un- is County San gun); Reynolds cer’s v. that all It is not better reasonable. (9th Cir.1996) 1162, 1168 Diego, 84 F.3d they es- suspects die than felony deadly was reasonable (holding that force poses no im- suspect cape. Where behaving who had been suspect, where a no threat to the officer and mediate officer); erratically, swung a knife at an others, resulting harm threat (9th Henrich, 39 F.3d v. Scott him does not failing apprehend Cir.1994) that the use dead (suggesting deadly to do so. the use of justify suspect where a ly force is reasonable unfortunate when sus- It is no doubt officers); v. Garcia United points gun escapes, but the fact pect sight who is (9th Cir.1987) States, F.2d late or are a arrive a little deadly force was reasonable (holding that always justify not afoot does little slower an officer the decedent attacked where may suspect. A officer killing the stick). with a rock unarmed, nondangerous seize by shooting him dead.... hand, that a the mere fact On the other justi does not suspect possesses weapon probable ... the officer has Where See, v. Roder e.g., Harris fy force. suspect poses that the cause to believe Cir.1997) (9th ick, harm, physical either threat of serious case, civil others, Ruby Ridge (holding, or to it is constitu- the officer kill armed adult directive to escape the FBI’s tionally prevent unreasonable to constitutionally unreasonable Thus, male was the sus- by using force. Marshal though even a United States weapon officer with a pect threatens the killed one already been shot and probable cause believe there Police, males); Ridgecrest Curnow involving a crime he has committed (9th Cir.1991) (holding 324-25 infliction of seri- infliction or threatened *10 382 reaching weapon. be for a might unreasonable where deadly force was Third, not that she believed gun a but was Brosseau stated possessed suspect
the injure peo- the officers and was would other it at pointing shot); they Ting fleeing Jeep. ple by when the area the She facing the officers States, driving 1508-11 “was in an erratic 927 F.2d said that he v. United Cir.1991) (9th manner,” him (holding deadly prevent force and that she shot analyze had suspect injury where a to others. We possible unreasonable in turn. Brosseau’s stated reasons dropped gun). circumstances, deadly force In some Haugen’s a. Prior Crimes of the based on the nature may justified be Brosseau stated that she knew fleeing suspect. the crime committed Richardson, warrant for arrest and See, 112 v. F.3d e.g., Forrett Cir.1997) (9th burglary. had a believed he committed (holding deadly Gamer, the fact that Brosseau be Under fleeing where a sus force was reasonable drug lieved had committed crimes of a had a victim the course pect shot burglary justify a and is sufficient to prior But commission of burglary). the cases, deadly many deadly In justi force. force always crime does not even a violent Harris, plaintiff will have committed one or at fy deadly force. See F.3d crimes, (“The more but Gamer and our circuit suspect] fact that had com [the cases make clear that the mere commis in the immediate mitted violent crime not, prior justify sion of crimes does not past important is an factor but is itself, more, deadly force. In justification him use of Gamer killing without for fleeing suspect burglar. was a Andaya, See sight.”); Hopkins 3-4, (9th Cir.1992) In Ting, U.S. at 1694. (holding that an major suspect part of a narcotics or deadly officer’s second use of force was ganization. In though 1507-08. suspect unreasonable even had at Curnow, suspect officers believed that the violently assaulted the officer a few min before; F.2d at had assaulted woman. See 952 utes the time of the second use force, just Andaya, suspect 323. In had deadly suspect advancing violently assaulted the officer. See 958 toward the officer but was wounded and Harris, unarmed). F.2d at In 883-84. may had fired shots into the woods whether, parties dispute under Gar- have been man killed a even who Unit ner, Officer Brosseau’s use at ed States Marshal. See 126 F.3d
was reasonable in the of this circumstances cases, Garner, including none of these five-page type-written case. In a state- suspect’s justify did the crime the use of in lengthy tape-recorded police ment and deadly force. interview, department Brosseau described Here, episode gave using her reasons for Brosseau had reason to believe First, that, drug force. Brosseau had committed stated crimes at burglary. Drug burglary the time she shot she knew and crimes and offenses, felony that he had a warrant out- no-bail are serious but under Gamer the standing drug-related charges, question and she critical whether the officer has probable “probable cause to believe that he had cause to believe that sus- [the Second, involving burglary. pect] committed has committed crime stated that she reach infliction infliction saw below or threatened of serious thought the seat of the that she harm.” 471 Jeep, physical U.S. 105 S.Ct. *11 weapon. a Nor has Brosseau offered probable no for had such 1694. Brosseau support other her belief evidence cause. might gun. have a She Haugen that had Weapon Haugen’s Potential b. car, gun did not see a and she had might that any reports not received he believed that Brosseau said she one, or that he had ever had have indeed in the car. weapon have a Haugen might precedent, one. Ninth Circuit Under running was toward Haugen When justify of a does not presence weapon he mere thought that she Jeep, Brosseau said force, Harris, he the use of see running weapon for a since might be Curnow, 1202; 324-25; 952 F.2d at simply to hide there. F.3d running would not be 1508-11, Jeep, Ting, she 927 F.2d at let alone the approached she first When to an area on a potential presence weapon. that he “reached down said front in the middle of the the floorboard an simple statement officer “[A] “thought that she he was reach- seat” and safety safety he fears for his or the a she broke ing weapon.” for Once objec- enough; others is not there must be however, window, saw that he Brosseau justify a concern.” tive factors to such But moments only keys his hands. had Rutherford, Deorle v. car, later, Brosseau just as he started the (9th Cir.2001). suspect Movements grab if to Haugen “dived forward as said if, justify deadly enough are not Bros- something again.” on the floorboard circumstances, those light of the relevant that he again that she feared seau stated movements would not cause reasonable weapon, and that she there- might have officer believe away from the driv- stepped fore back and weapon. support of her reaching for er’s window. Haugen reaching for a stated fear at the time she Brosseau admitted that objective cited no weapon, Brosseau has that he Haugen, she was not worried shot factors other than her stated observation her. any weapon against use She would to be appeared that he dove forward and him, and away back and stepped had all of reaching something. Construing him, so that positioned had herself behind facts and circumstances and the relevant gun he would Haugen even if had had in Hau- inferences drawing all reasonable said, had a clear shot. She howev- not have favor, a motion for gen’s as we must on er, Haugen gun that she feared conclude that summary judgment, we might officers who might use it on some objec- has not demonstrated car, the front of his or approached potential fear about a tively reasonable against Tamburello or might that he use it justify use of dead- that would her weapon Atwood, unhappy cause to be “who he had ly force. with.” of Brosseau’s stat- predicate The factual Escape in a Vehicle Impending c. dove forward as ed reason is that Finally, Brosseau asserted car. But several other wit- he started the injure officers Hau- feared would gave about what nesses statements away in his get he tried to of these others when gen doing the car. None report, Brosseau Jeep. type-written In her mentioned that dove witnesses pre- of the threat forward, perception any support offered described and none has escape. In relevant by Haugen’s sented for Brosseau’s assertion report states: reaching part, her might looked as if he have been *12 other officers on for the I was fearful in the immedi- I believed were
foot who uh, you close do think his How <© in area, occupied vehicles his for the ate striking came from speeding car any other citizens who and for path Honda]? red [Nocera’s It noted in area. should be might be <1 I don’t know. [ie., car Nocera’s small red It Ten Feet? Okay. Was Within directly in front of O* parked Honda] I’m having <1 I don’t know.... some I had last seen Nocera Jeep and that of dis- perceptions trouble with of it. I daughter sitting inside and her tances. I Jeep and me. one between the saw no Okay. you Can estimate how close .© through the rear driv- fired one round um, you when you were to his car I had aimed at side window. er’s fired the shot? the driv- I would be position perceived Not at time. No. this him attempt stop in location er’s anyone. hurt he could before him, Did, Okay. way was there a <© Haugen it my encounter with
During get out onto the the Cherokee to in wholly that he was was obvious driveway? by using street mind. He did not unstable frame of t> No. for his own life. I any regard exhibit you going think was So what did <© Haugen an immediate dan- considered to do? every and made ger to all around him Well, driveway completely stop including attempt- him attempt uh, pick up blocked by striking him his head. At ing to stun truck. And the little red car was I to make an accu- this time am unable completely blocking almost it as Jeep of the distance the rate estimation So, thought I well. I fired. was from me when to, way going out of there was to be in- police department tape-recorded to strike the truck or the little red terview, Brosseau further described her car, or both. decision to use force based what were, the two truck people So ¿O by Hau- perceived posed as the threat being struck were gen’s escape. por- imminent The relevant recklessly driven vehicle? tions of her interview are as follows: i> Yes. Q. you did point, At that who then little and the girl As well as the <© become concerned about? mother? [M]y point A ... at that concern Yes. directly in time were for the vehicles Haugen’s girlfriend the red car? One, um, front of him. which was <© Where, you were did believe the him, directly in front of which is um, were, other officers at the scene occupied by a woman and her child. during you, the incident where were that I And the other officers felt At you, you when fired the shot? area, were the immediate that moment. up. coming were on foot to back me uh, stop can we At that moment I quite sure that some them again for a tape second? he was right were close to where driving. pickup, and the and others. door the Honda were at the driver’s
Q. you When um, variously people characterized these She where confronting “any might citizens who be as other at the scene? other officers him,” area,” “all around those who were they were at. I, not see where A. I did *13 in the community,” “the and “residents they were at? you think Q. did Where area.” they in the that were presume A. I that said To the extent Brosseau she area, to as- approaching immediate driving in an shot because he “was sist me. manner,” sup- her statement is not erratic regarding the tim- ported the evidence Um, objective when Q. your what was Haugen says that ing shooting. of the at the mo- you your weapon fired Jeep him the even Brosseau shot before weapon? you fired the ment According Haugen, not moved. my fellow officers protect A. To manner,” driving “in an erratic was he not community from an eminent the at all. stated driving he was not Others danger. [sic] that, most, just Haugen’s Jeep had be- that there reasonably believed Q. You to move. Nocera said that Brosseau gun to their an immediate threat was Jeep, after he started the shot life? out,” just “getting ready pull as he was Yes, I Do. A. barely starting to roll.” and that it “was “pret- the shot Aaron Riddle said he heard Jeep much at same time” that the ty the I just so that Q. Okay. again, And once Riddle said she moving. started Irene sure, an, you me give can know for just Haugen first revved heard the shot as for the reasonable belief your basis Ledbetter up Jeep. Neighbor the Florence people’s other lives were that the and heard across the street said she saw threatened? just Jeep “started to the shot when all, that I still had in mind A. First of Jeep stated that move.” Tamburello Um, thought weapon. I he had gone perhaps already moving, was but very difficult for that it would be that Brosseau shot six Atwood said feet. at me from the try him to and shoot “just pulling away,” Jeep started when I at when fired. position we were “[hjadn’t far,” that very moved Uh, however, I that he could’ve felt five or ten feet. Ac- gone “maybe” it had him, in front of fired on disputed facts cepting the version of truck, pick-up in the people or the we do not cred- Haugen, most favorable uh, unhappy to be who he had cause was that “he driv- it Brosseau’s assertion than driving, And his more with. manner,” for we must ing in an erratic I vehicle. did anything else. His summary judgment on assume where he he could see believe Brosseau even moved when Jeep had not driving in an going. He was him. shot pedestri- manner. Now had erratic and residents
ans and officers thought also stated Brosseau area. danger- particularly Haugen’s driving where he was he could see in her written ous because Brosseau thus indicated front wind- said that “the going. con- interview that she was statement and passenger part and at least driving would endan- shield cerned covered Jeep] officers,” [of in side windows people the four ger her “fellow “small, space” which was fairly tight in a Haugen had used to newspaper with” the lot,” said that paint. parking “not like a but he spray from the glass protect twenty wide however, driveway that there was was about feet testified to drive “plenty Atwood also and that he had room” the windshield. paper no newspaper neighbor’s on the and the was no between the Honda that there stated anything. Jeep stated that he hitting Tamburello house without windshield. left, of the wind- on one side and Atwood paper already angled some to the saw shield, Haugen pulled it off before turn the wheels but stated that he saw stage Because at this Jeep. got putting Jeep gear. in the to the left before must construe the fac- “clear, we proceedings straight said that he had *14 favor, Haugen’s we cannot in driveway. photo- tual evidence shot” out of objective sup- evidence say that there was Haugen also show that graphs of the scene Haugen that claim porting Brosseau’s away room to drive enough had more than going was as a where he could not see or Tam- striking without Nocera’s Honda covering the wind- newspaper result of in Viewing the evidence pickup. burello’s shield. favor, conclude that Brosseau Haugen’s we objectively reasonable pointed has not to that, explained at the further
Brosseau
Haugen’s
belief that
support
factors to
fired,
did not believe that
she
moment she
escape
driveway posed
signifi-
from the
a
escape
Jeep
in the
impending
Haugen’s
injury to the
cant risk of death or serious
her,
pose
but that it did
posed danger
a
to
in
people
pickup.
the Honda and the
in
area.
stated
to others
She
worried, specifically, about
that she was
Brosseau also asserted that she feared
Tamburello,
Nocera,
daughter,
Noeera’s
safety
for the
of her fellow officers. She
daughter
and her
and Atwood. Nocera
specific
support
no
evidence to
has offered
the red Honda that was
were inside
“presume[d]
fear.
claims that she
this
She
Jeep
driveway
in the
between
parked
area,
they
ap-
that
were in the immediate
Atwood
and the street. Tamburello and
assist,”
proaching to
but she does not
parked
in
that
pickup
were seated
was
they
that
claim that she saw them or knew
driveway.
the street at the end
dangerous place.
She had left
that she was worried
Brosseau indicated
Pashon,
officers
and
other
Subido
escape
that
without hit-
Haugen could not
foot,
backyard.
in Rounds’s
ting
pickup. According
Honda or the
patrol
officers were in
cars
Two other
their
Brosseau,
“completely
driveway
to
was
positions
containment
on the street sev-
pickup
and “almost com-
blocked”
Haugen’s
eral hundred feet to the south of
But
pletely
by the Honda.
block[ed]”
Atwood,
mother’s house.
who witnessed
say
Haugen
how close
Brosseau could
the events while seated in Tamburello’s
“I’m
actually
hitting
came to
the Honda:
pickup, stated that the other two officers
having
difficulty
perceptions
with
some
backyard
in the
time
were still
argues
distances.” Brosseau nonetheless
if they
fired. Even
had been
Brosseau
reasonably
that she
believed that
assist,
running to
Subido and Pashon
escape
dangerous
because he was like-
running
would have been
from the south-
ly
pickup.
to hit the Honda or the
east,
escaping
while
to the
statements,
Thus,
Brosseau stated
Contrary
to Brosseau’s
north-west.
while
easy
might
an
that
that officers on foot
escape
stated
he had
she feared
by Haugen’s Jeep as he drove
driving off to the left around the Honda
be struck
“a
away,
that he
her statement is no more than a
pickup.
admitted
unsupported by
At the
it
time
shot
fear
simple statement”
Deorle,
clear that he
at was
intended
flee
his
“objective factors.”
a number
Jeep
of non-lethal mea-
evidence
She has
offered
prevent him
doing
sures had failed to
Haugen posed
claim that
support
bodily
equally
But
clear that Brosseau
or serious
so.
risk of death
significant
and her fellow officers did not
to kill
need
officers.
injury
fellow
a dangerous
order
avoid
have
high-speed
They
chase.
could either
High Speed
d.
Police Chase
chase if
discontinued a
it became too dan-
need to
The dissent contends
gerous,
forgone
could
chase en-
high-speed police
a dangerous
prevent
tirely. Haugen
already
remained at
justified
decision to use
Brosseau’s
chase
large months while
no-bail
several
Brosseau stated that she
force.
no
outstanding,
warrant was
there is
Haugen’s erratic
was concerned about
February
reason
the events of
20 and
shot
driving, but she never stated
suddenly
made his freedom immedi-
chase,
dangerous high-speed
prevent
safety.
public
ate threat
The cost
*15
that a
argued
potential
and has not
to us
to
society
allowing
of
criminals
flee is
justified
deadly
her use of
force.
chase
but the
Court has held
great,
case
re
respect, this
to some extent
this
not always justify
that this cost does
dead-
Gamer,
where the
officer
sembles
felony
ly force. “It is not better
all
deadly
initially justified his use of
had
escape.”
at
suspects
they
die than that
Id.
to
prevent
on the need
force based
11,
without
But our
circuits have also held
sister
justify
deadly
of
automatically
the use
high-speed chas
police
chases—even
21, 105
at
1694.
force.” Id.
S.Ct.
always
deadly force.
justify
es—do not
circumstances,
Cox,
fairly
Vaughan
In
extreme
v.
264 F.3d
1031-
some
See
(11th Cir.2001),
536
by
that the dan
vacated
U.S.
our sister circuits
held
34
flee in vehi
122
“that the
the official is
e. Fourth Amendment Conclusion
‘clearly
have violated must
been
particularized,
established’ in a more
the foregoing,
Based on
we conclude
relevant,
and hence more
sense: The
objective evidence
that there is insufficient
right
sufficiently
contours of the
must be
grant
summary
in the record
Brosseau’s
clear that
reasonable official would
judgment
light
Taken
motion.
most
doing
understand that what he is
vio-
objective
favorable to
evi
right.”
lates
dence,
light
totality
examined
201-02, 121
surrounding
(quoting
this case and Id. at
S.Ct.
circumstances
actually
Creighton,
time
Anderson v.
483 U.S.
evaluated as
(1987)).
gun,
fired
a conclu 107
others.” U.S. at hand, On the other state officials are not therefore conclude a reasonable We qualified immunity simply be- entitled conclude, jury could based on this evi materially case facts cause no with similar dence, that Brosseau’s conduct violated has their conduct unconstitutional. held right. Fourth Amendment *19 730, 739-41, Pelzer, 536 Hope See v. U.S. Katz, 201, 121 533 U.S. at S.Ct. 2151. (2002); 2508, 122 153 666 S.Ct. L.Ed.2d Dist., Morgan Hill Sch. Flores v. Unified Qualified Immunity
2. Cir.2003). (9th 1130, 324 1136-37 F.3d warning: is one of fair Having determined that “a violation standard right the contours of the have been could be made out on favorable view of where submissions,” id., that a [Haugen’s] specificity must defined with sufficient we next 392 warning had fair
state official
that her
evidence
support
Brosseau’s stated con
that,
a victim
deprived
rights,
conduct
of his
him,
cern
at the time she shot
Hau-
qualified immunity.
gen
is not entitled
posed
significant
risk to
offi
Pelzer,
10,
at 740
n.
122
536 U.S.
&
cers or others in the area. We therefore
2508.
conclude that Brosseau’s mistake about
requirements
of the Fourth Amend
Beyond
general proposition
that ex
unreasonable,
ment was
and that she had
unconstitutional,
cessive force is
the Su
“ ‘fair warning’ that
deprived
[her] conduct
preme Court in
“spe
Gamer articulated a
[Haugen] of a constitutional right.” Pel
cial
governing
rule”
of deadly
use
zer,
740, 122
at
U.S.
S.Ct. 2508.
Phoenix,
City
force. See
Monroe
(9th Cir.2001).
851,
Under Gar We are mindful
officers are
ner, deadly
force is
permissible where
upon
called
“to
split
make
judg-
—second
probable
“the officer has
cause
believe
tense,
ments—in circumstances that are
poses
uncertain,
a threat of serious
rapidly
evolving
—about
harm,
physical
either to the officer or to
amount of force that
necessary
in a
11,
others.” 471
at
Graham,
U.S.
ates “to protect officers from the some-
threat to
rights
constitutional
pres
that is
hazy
times
border between excessive and
government
ent when
deadly
officials use
Katz,
acceptable
force.”
533 U.S. at
against
force
citizens.
giving
“[W]hile
due
393
Praprotnik must
sentence from
be read
the evidence
Viewing
rest.
Praprotnik
a
context. The Court held
favor,
use of
Brosseau’s
Gamer,
consequently
municipal liability, plain-
that to
a
and
establish
violation of
clear
judgment
tiff
existence
an un-
summary
“prove[ ]
not
to
must
the
of
entitled
immunity.
municipal policy.”
constitutional
Id. at
qualified
on
based
128,
single
a constitutional municipal pronounce- some Although ments action ratifying a subordinate’s could tantamount to the announcement be allege, Haugen’s complaint did of for policy purposes or confirmation appeal, on argued he has us Monell, in the here there are no facts acting any pursuant Brosseau was suggest the single record that failure when she shot him. preexisting policy discipline rises the level Rather, city that the and the contends See, e.g., Santiago such ratification. are fault department at because (1st Cir.1989) Fenton, they discipline failed Brosseau after the hold the “failure of course, (refusing to cannot, shooting. Haugen argue (or discipline specific in a police department to action inac- municipality’s later tion) adequate municipal basis for instance is shooting. Haugen the earlier caused Monell”). City of Pu- liability under city argues instead that yallup Puyallup Department and the Police liable department should be held because summary judg- are entitled to therefore they Brosseau’s decision to use “ratified” ment. deadly force. doctrine, asserted as a ratification Against Law Claims C. State liability, originated in municipal for
basis also sued Brosseau based 112, 108 Praprotnik, Louis v. 485 U.S. St. Washington state law tort claims. Under (1988). There, L.Ed.2d 107 S.Ct. law, Court stated plurality action complete approve [i]t is a defense policymakers the authorized “[i]f it, injury or damages personal for decision and the basis for subordinate’s injured person death that the chargeable wrongful would their ratification be engaged in the commission decision is killed was municipality because their felony at time of occurrence Id. 915. But the final.” *21 injury or death and felo- causing the therefore reverse the district grant court’s ny proximate injury cause of the summary judgment Haugen’s on state or death. law tort claims. (2003). § 4.24.420
Wash. Rev. Code Haugen’s district court dismissed state law Conclusion because, view, in claims its reasons, For the foregoing we RE- in engaged felony the commission of a VERSE the district grant court’s of sum- when Brosseau shot him. Washington law mary judgment Haugen’s § on 1983 claim provides that against Brosseau. We AFFIRM the dis- [a]ny driver of a motor vehicle who wil- grant trict court’s of summary judgment fully immediately fails or refuses to Haugen’s § against 1983 claims bring stop his vehicle to a and who City of Puyallup drives his vehicle in a manner and the indicating Puyallup Police or disregard Department. wanton wilful for the lives We REVERSE the district property or attempting others while grant court’s of summary judgment on vehicle, pursuing police elude a after Haugen’s against state law claims Bros- being given a visual signal or audible seau. We proceed- REMAND for further bring stop, the vehicle to a shall be ings. guilty felony. of a class C The signal in part, AFFIRMED REVERSED in given by may officer be part, and REMANDED. Costs to Haugen
hand, voice, emergency light, or siren. on his appeal relevant to Brosseau. Costs giving The officer a signal such shall be City Puyallup and the Puyallup in uniform and his ap- vehicle shall be Department. Police propriately showing marked it to be official vehicle.
§Id. 46.61.024. REINHARDT, Judge, Circuit concurring: shot, being
After away drove and, time, for a stop refused to for police. I join fully in Judge opinion Fletcher’s ultimately He pled guilty felony to a under court, for the on the understanding that But, § 46.61.024. as discussed in section may not use against A.l.c., supra, there a disputed factual an otherwise nondangerous felony suspect question about when Brosseau shot Hau- simply because a chase of that suspect, gen. Construing in the facts high-speed otherwise, or would become or favor, it appears that may does dangerous. Rather, become as I un- shot before he had begun to law, derstand controlling high- “drive his vehicle in a manner indicating a speed chase of a nondangerous felony sus- wanton or wilful disregard for the or lives be, pect becomes, would dangerous, the property of others.” Id. It therefore is not officers must terminate the chase. oth- clear that he “was engaged the commis- words, er the chase itself cannot create the felony sion of a at the time the occur- justifies shooting a suspect causing rence the injury” or that felony who, Gamer, under may not otherwise be a proximate “was injury. cause of’ his Id. added). shot. I do § (emphasis 4.24.420 understand the out-of-eir- stage At this cuit cases proceedings, Judge it is discussed not clear that Fletcher’s Brosseau will opinion have the benefit of the com- excellent the dissent to hold plete provided § defense 4.24.420. We otherwise.
GOULD,
It threatens
innocent
dissenting:
United States.
the
Judge,
Circuit
the
protect
guilty.
to
majority’s conclusion
accept
I cannot
the
will-
Haugen, visibly
a
disturbed felon
that
I
capture,
to avoid
anything
do almost
ing to
Garner,
Under Tennessee v.
471 U.S.
“a
threat of death
pose
significant
did not
(1985),
Even did violate Fourth Amend- alter- in his automobile were reasonable rights. ment native, fault Officer properly we cannot thinking of it in the heat majority’s contrary objec- holding is Judges must allow “for of the moment. tionable not because it flouts Su- fact are often standard, preme Court’s also Gamer but make split-second judgments forced to —in because creates a split. circuit uncertain, tense, circumstances that are Sixth, Eighth, and Eleventh all Circuits rapidly evolving the amount —about held, hold, as I would that officers necessary particular that is situ- justified using are force when a Connor, ation.” Graham v. 490 U.S. likely fleeing appears felon drive with 109 S.Ct. L.Ed.2d disregard willful for the lives of others. (1989). judge We Officer Brosseau’s must Clay County, See Scott v. a reason- perspective conduct (6th Cir.2000) (holding rea- scene, officer not from able sonably fleeing shot a felon in an automo- judge of a his or her cham-
perspective when his driving posed bile reckless majority effectively ignores Id. The bers. Court, safety immediate threat to the of officers this command from the *26 civilians); Freland, measuring Brosseau’s not and innocent Smith v. Officer conduct (6th (hold- Cir.1992) a offi- against the standard of reasonable 347-48 scene, against on the the standard reasonably cer but ing police that a misde- shot judgment own to what inexpert of its as an he fleeing meanant automobile when have under Brosseau should done Officer a to officers at road- posed police threat a circumstances. likely almost appeared block and to “do Bone, anything capture”); to v. avoid Cole sum, I that Bros- would hold Officer (8th Cir.1993) 993 F.2d 1330-33 to probable cause believe that seau a (holding police reasonably shot a Haugen’s high- on leading police reckless a posed in a truck fleeing criminal when through car a residential speed chase driving pose significant threat to travelers on a crowded neighborhood would a majority opinion oral automobiles. Had Officer 9. The author of the not to disable argument counsel whether Offi- Haugen's asked defense at close Brosseau fired at tires Haugen's ricocheted, tires cer Brosseau have shot should range, might her have kill- bullets Though majority to disable his vehicle. bystander. ing injuring or an or innocent possi- opinion rely does not now this as penetrated a if Even Officer Brosseau’s bullets force, deadly is alternative to the use of it ble tire, necessarily the bullets would helpful why shooting perhaps explain Hau- to harmlessly come to rest. The bullets could gen’s likely an tires would have been ricocheting trajectory, have continued their appropriate tactic to end the or effective automobile, injur- ground killing or off or Shooting Haugen’s posed. threat Parent, ing Rick WizenPo- the innocent. See may not tires have disabled car. Shoot, (“Un- Magazine, lice Oct. 2000 Police escaped endangered still could have —and by 'Hollywood,’ depicted like the scenes by driving with a flattened tire others — 'shooting precarious can out of a tire' be importantly, two. More Officer Brosseau event.”). dangerous endangered would have herself and others Haugen’s tires. This was wise not to shoot shot at tires. ammu- had she Police no alternative at all. "alternative” was designed beings, disable nition to human highway); Capobianco, passengers by- Pace v. ate serious risks interstate Cir.2002) (hold- (11th 283 F.3d Mays City standers. E. St. reasonably shot a felon ing police Louis, (7th Cir.1997). 123 F.3d appeared in an automobile when he fleeing Moreover, majority by putting errs using aggres- his vehicle likely to continue police by onus on pursuit letting end the sively during police pursuit). the felon escape, fleeing rather than on the felon, who at all power times has the holdings every
Contrary to the circuit injury avoid to himself and halt- issues, others analogous majority to consider ing requires. as the law See id. at 1004 fleeing violates a holds that an officer fel- (holding that a pursuit officer’s of a rights by using Amendment on’s Fourth fleeing played felon prevent dangerous vehic- automobile wreck, majority “causal in an flight; appears ensuing ular role” “but not that officers can reduce the dan- recognizes believes the kind of cause the law as ger highspeed by forgoing of a chase it.10 culpable.... criminal’s effort to shift [A] majority believes police] the blame ... is not one that [to permit speed away unpur- should felons any legal system accept.”). can There are , attempt stop sued rather than them. problems several majority’s with the rea- (“[Officers] Supra at 387 could either have soning. if discontinued a chase it became too dan- First, majority implies, contrary gerous, forgone or could have a chase en- evidence, the record would (“[A]n tirely.”); id. at 389 officer must safely have driven and carefully away from forego sometimes or discontinue scene he had not been followed escape.”). force and allow a police squad cars. But it is unrealistic to slights important law deranged conclude that and de- in pursuing fleeing enforcement interests felon, fiant suddenly would have been See, e.g., felons. City Donovan v. Mil- transformed into a model citizen and care- (7th
waukee, Cir.1994) *27 ful driver away the moment he drove from (“Police to, may, ought pursue officers police the scene and did not hear in sirens fleeing suspects, and where suspects those pursuit. And even Officer Brosseau had harm, present physical ‘a threat of serious believed that her fellow officers would not others, either to the or it is not officer[s] vehicle, pursue Haugen’s Brosseau still constitutionally prevent unreasonable to would ”) probable have had cause to believe escape by using deadly (emphasis force.’ added). Haugen speed away would from the majority neglects the fact police that if scene with willful and wanton pursue, disregard are forbidden to then many safety. Indeed, for suspects more will flee—and suc- others’ even before flights chase, was, cessful not police squad gave will reduce the cars Haugen number of admission, crimes solved but also will ere- his own “standing Rather, majority opinion, 10. More candid than the ous. controlling as I understand the law, Judge separate concurring opin- high-speed Reinhardt's nondangerous if a chase of a be, becomes, majority’s holding explicit felony ion restates the suspect danger- in would or states, ous, concurring opinion join terms. The "I the officers must terminate the chase. In court, words, fully Judge opinion in Fletcher's for the other the chase itself cannot create the understanding may danger justifies on the shooting suspect....” that officers not a against use Supra majority force an otherwise opinion non- at 394. The never dangerous felony suspect simply Judge separately because a disavows Reinhardt's stated view, which, event, suspect, high-speed chase of that or other- in animates ma- wise, danger- jority opinion's would become or analysis. does become
401 corrupt driveway, accelerating analysis “as its preference gas” in the “small, could,” a danger Haugen posed community by within to the quickly [he] as rea- fact fleeing deranged a that confirms in a vehicle in a mental tight space,” Officer Brosseau’s earlier sonableness state. safety. others’ concern about a Having split by misap- created circuit (with Second, no majority implies Gamer, majority downplays its plying record) law Washington in the
basis
from our
circuits’ deci-
departure
sister
Department policy pro-
Police
Puyallup
by urging
ap-
sions
those decisions
least,
(or,
discouraged) Officer
at
hibited
in
proved
circumstances
pursuing
from
Brosseau’s fellow officers
from
very
presented
different
those
here.
squad
Although
in their
cars.
every
Although
presents unique
case
may
in
police
Washington
officers
facts,
in
the facts
our sister circuits’ deci-
injured by
person
compensate
who
in im-
are similar
the facts here
sions
while
police
negligent conduct
officers’
Sixth,
respects.
Eighth,
In
portant
Bitton,
felon,
fleeing
Mason
pursuing
cases, as in this
and Eleventh Circuit
321, 534
P.2d
85 Wash.2d
case,
in
fleeing
from
(1975), Washington
prohibit
law does
automobile,
that can be ex-
machine
in a
fleeing felon
pursuing
tremely dangerous
operated
when
errs
effective-
vehicle. So
regard
care and
great
with
due
re-
ly holding that Officer Brosseau was
Scott,
safety.
at
public
See
205 F.3d
871-
quired to assume
her fellow
Smith,
344; Cole,
72;
954 F.2d at
squad
in
not chase
their
would
Pace,
1330;
In
F.2d at
The
872;
Scott,
F.3d at
capture.
avoid
See
205
policy,
departments
that police
matter of
Smith,
Cole,
344;
F.2d at
seau acted when did. analysis requires Fourth Amendment balancing delicate of individual and societal
Contrary majority’s suggestion, to the interests, Summers, Michigan v. 452 U.S. neither the Seventh Circuit’s Donovan de- n. 101 S.Ct. 69 L.Ed.2d Vaughan cision nor the Eleventh Circuit’s *29 (1981), 340 and an support major- v. Cox decision to the individual’s interest lends ity’s importance. his or her life is of unmatched holding. novel Both Donovan and Vaughan my But when a are consistent with view— felon threatens innocent lives compelled by Supreme the in a attempt escape responsibility Court’s Gamer base Pace, paying); lights).
booth without
283 F.3d at
(suspect driving
night
1276
without head-
laying down a rule of
crimes,
ground
do not
police officers
for his or
law....”).
Fourth,
majority
deadly force to
the
states
using
unreasonably
act
reject-
Supreme
hold that
that
Court in
community.
I would
the
Gamer
the
protect
Haugen’s
general
kind of
statisti-
dissent’s]
not violate
ed “[the
Brosseau did
supra
that
the
cal
at 389. But I
rights
approach.”
Amendment
Fourth
summary
any “general
ap-
granted
do not use
statistical
properly
court
district
event,
and,
proach,”
Supreme
the
in her favor.
judgment
in precisely
used statistics in Gamer
Court
way
the
I
them here. See 471 U.S. at
use
21,
Fifth,
majority
the
105 S.Ct.
certainly
but
purpose,
the
perhaps
With
not view
facts in the
states that I do
the
effect,
obscuring
departure
its
not the
But I
light
Haugen.
most favorable to
Gamer stan-
Supreme
the
Court’s
from
on facts
does not
have relied
precedents,
circuits’
our sister
dard and
that
the conclusion
dispute,
compel
facts
array of rhetorical
majority deploys an
the
Haugen’s fleeing
his vehicle would
that,
collectively,
individually and
devices
posed significant
threat of death or
the weaknesses
only to accentuate
serve
injury to others.
physical
serious
majority’s rationale.
the
majority’s
phrasing
artful
and over-
hold-
First,
majority implies that its
the
and can-
wrought lucubrations should not
with those of our sister
is consistent
ing
majority’s
from
departure
not obscure the
come
But no other court has ever
circuits.
and our sister cir-
Court’s
majority holds
holding, as the
close to
Acting
police
somewhat as a
cuits’ law.
may never use
today,
police
commissary for the western states and
from the
public
protect
force to
jurisdiction,
rather than
territories
our
from
flight
reckless
posed
felon’s
court,
im-
majority
as a constitutional
Scott, 205 F.3d at
in a vehicle. See
police
unworkable restrictions
poses serious and
reasonably used
(holding
police
bring
efforts to
criminals
police
officers’
fleeing in a
stop
force to
community. I
justice
protect
and to
Smith,
vehicle);
Saucier (2001). if, But L.Ed.2d
S.Ct. hand, of reasonable “officers
on the other issue, disagree on th[e] could
competence recognized.” Malley, be
immunity should 341, 106 1092. U.S. plainly incom- Brosseau was knowingly violate did she Nor petent.12 America, UNITED STATES of com- reasonable the law. Police Plaintiff-Appellee, disagree whether could petence v. fact, justified.13 ap- federal force was DIAZ-CARDENAS, Rene Defendant- competence do courts of reasonable peals Appellant. judges, And un- on the issue.14 disagree officers, luxury have the like No. 02-50415. issues in the studying the constitutional Appeals, United States Court of chambers, calm with the benefit of of their Ninth Circuit. hearing after oral lawyers’ briefing, and Knapp, arguments. See Ganwich Argued Sept. 2003. Submitted (9th Cir.2003) (“[Jjudges Filed Oct. 2003. officers to read expect police should not time, spare in their Reports United States law treatis- study arcane constitutional
es, analyze Fourth Amendment de- or to
velopments professor’s preci- with a law
sion.”). majority holds Officer Brosseau to Officer Bros- unreasonable standard. commended, be not con-
seau should
demned, acting courage with and de- protect public
cisiveness to from a
dangerous deranged in a felon mental embarking potentially
state
on a
Rather,
say
12.
I would
Officer Brosseau is
violation in circumstances similar to those
very
Scott,
877;
competent.
presented here. See
205 F.3d at
Cole,
1330-33; Pace,