Michael SLUSARCHUK; Elaine Stebleton, individually and as trustee on behalf of the heirs of Jennifer Stebleton, Plaintiffs—Appellees, v. Jon HOFF; Lance Faust, Defendants—Appellants.
No. 02-3601.
United States Court of Appeals, Eighth Circuit.
Submitted: May 14, 2003. Filed: Oct. 22, 2003.
346 F.3d 1178
Thus, UNUM’s surveillance—showing Morgan driving his car, eating lunch at a restaurant, carrying light objects, sitting and reading, and stretching and doing light aerobic exercise at the gym for about forty-five minutes—revealed nothing new and was not substantial evidence supporting UNUM’s decision to discontinue Morgan’s disability benefits. Dr. Feagin’s opinion that Morgan’s activities shown on the surveillance footage were incompatible with fibromyalgic impairment was also not substantial evidence for several reasons. Dr. Feagin’s opinion was directly contrary to the opinions of Morgan’s two primary treating physicians, Dr. Tiede and Dr. Yue. Nothing in the record shows that Dr. Feagin had any expertise or experience whatsoever in dealing with fibromyalgia. And Dr. Feagin’s opinion on the physical limitations of a person impaired by fibromyalgia was at best tangentially relevant to Morgan’s circumstance of being disabled by the cognitive deficits rather than the physical limitations he suffered due to fibromyalgia and insomnia.
Similarly, whatever value Dr. Selin’s opinion had, it was known to UNUM at the time it initially determined Morgan was disabled and awarded him benefits. Her opinion was therefore not substantial evidence supporting UNUM’s later decision to rescind Morgan’s benefits.
Finally, UNUM urges that we should disregard Dr. Misukanis’s November 2000 evaluation of Morgan because it was conducted after the August 2000 discontinuation of benefits. We agree, which has the consequence of making Dr. Higgins’s critique of Dr. Misukanis’s evaluation extraneous, and thus not substantial evidence supporting UNUM’s decision to discontinue Morgan’s benefits.
IV.
Accordingly, we affirm the district court’s judgment in Morgan’s favor.
Peter William Ginder, argued, Assistant City Attorney, Minneapolis, MN (Jay M. Heffern, Minneapolis City Attorney, on the brief), for appellant.
David E. Wandling, argued, Minneapolis, MN, for appellee.
Before LOKEN, Chief Judge, BRIGHT, Circuit Judge, and SMITH CAMP,1 District Judge.
Rico Howard, fleeing Minneapolis Police Officers Jon Hoff and Lance Faust, ran a stop sign at high speed and struck a car in the intersection, seriously injuring Michael Slusarchuk and killing Jennifer Stebleton. Slusarchuk and Stebleton’s heirs filed this
I.
Suspicious of a car lingering at an intersection at 11:30 p.m. on August 22, 2000, officers Hoff and Faust shined an “alley light” into the car. Officer Faust recognized the driver, Rico Howard, and Officer Hoff thought he recalled an outstanding probable cause “pickup” on a man named Howard. The officers followed Howard briefly and then activated their squad car’s emergency lights. Howard initially slowed and pulled toward the curb but then drove through a stop sign and continued on at approximately ten to twenty miles per hour. The officers activated their warning siren, but Howard did not stop. Instead, he ran two more stop signs and then accelerated, with the squad car in pursuit. A witness saw the two cars approach an in-
Howard pleaded guilty to second degree murder in state court. Slusarchuk and Stebleton’s heirs then commenced this
II.
Qualified immunity shields government officials from damages liability if “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Appellees’ legal theory is that officers Hoff and Faust had no probable cause to stop Rico Howard, that they were guilty of racial profiling in attempting a stop, that Howard was legally justified in refusing to stop, that the officers improperly harassed Howard by pursuing him, and that appellees were injured as a “direct result” of this unconstitutional conduct. The theory is framed in Fourth Amendment terms, but as appellees belatedly recognized in the district court, their claims are not covered by the Fourth Amendment because the officers never succeeded in stopping Rico Howard. Pursuit reflecting an intent to stop “does not amount to a ‘seizure’ within the meaning of the Fourth Amendment.” Lewis, 523 U.S. at 844, 118 S.Ct. 1708, citing California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Thus, the qualified immunity issue turns exclusively on whether the officers violated Slusarchuk’s and Stebleton’s right to substantive due process, as clearly established in Lewis and in this court’s decisions construing and applying Lewis.
A. An initial problem arises because various Supreme Court justices have debated in recent years whether the touchstone of substantive due process liability is conscience-shocking official conduct, or conduct that violates a fundamental right deeply rooted in history and implicit in the concept of ordered liberty, or both. See Lewis, 523 U.S. at 860-62, 118 S.Ct. 1708 (Scalia, J., concurring). In this case, the district court stated, and appellees argue on appeal, that the proper standard is whether there was an abuse of government power “that ‘shocks the conscience’ or interferes with rights implicit in the concept of ordered liberty.” 228 F.Supp.2d at 1015 (emphasis added). That was an error of law. Following Lewis, this court sitting en banc held that a substantive due process plaintiff “must demonstrate both that the official’s conduct was conscience-shocking, and that the official violated one or more
B. Appellees argued, and the district court agreed, that officers Hoff and Faust would be guilty of conscience-shocking misconduct if a jury found that they attempted to stop Rico Howard based upon his race without probable cause or reasonable suspicion that he was engaged in criminal activity. But this theory is fatally flawed. Appellees lacked standing to assert a
C. Thus, the relevant question becomes whether officers Hoff and Faust are entitled to qualified immunity for their pursuit of Howard after he refused to stop. This question turns on the fault standard or level of culpability required to establish conscience-shocking conduct in a
Despite this settled law, appellees argue that the deliberate indifference fault standard applies to their substantive due process claims. They present the very argument we rejected in Helseth—that the deliberate indifference standard applies
D. Appellees argue that officers Hoff and Faust evidenced the requisite intent to harm in pursuing Howard because they did not have probable cause to stop him and therefore the pursuit was unrelated to a legitimate object of arrest. This contention is without merit. When Howard refused to stop after the officers activated their emergency lights, they had probable cause to arrest him for committing a felony in their presence, regardless of their initial reasons for the attempted stop. Thus, the pursuit was “aimed at apprehending a suspected offender” and did not objectively evidence “a purpose to cause harm unrelated to the legitimate object of arrest.” Lewis, 523 U.S. at 836, 118 S.Ct. 1708.
Alternatively, appellees argue that the officers are not entitled to qualified immunity because they intended “to worsen [Howard’s] legal plight.” Lewis, 523 U.S. at 854, 118 S.Ct. 1708. The Court added this term the second time it stated its intent-to-harm holding in Lewis. Compare 523 U.S. at 836, 118 S.Ct. 1708, with 523 U.S. at 854, 118 S.Ct. 1708. The Court did not further explain what it meant by an intent to worsen legal plight, but the sentence was followed by footnote 13, which discussed a prior Fifth Circuit case involving alleged “intentional misuse” of a police officer’s vehicle to terrorize a citizen. Checki v. Webb, 785 F.2d 534, 538 (5th Cir.1986). We decline to read the term expansively, as appellees urge, because every police pursuit is intended to “worsen [the] legal plight” of the suspect by arresting him. Thus, a broad reading would eviscerate the intent-to-harm standard that the Court adopted, at least in part, to sharply limit substantive due process liability. Rather, we construe the term as applying only to a narrow category of pursuits that reflect a conscience-shocking motive beyond the realm of legitimate government action but do not involve an intent to inflict physical harm. The pursuit in this case reflects no such motive. Therefore, officers Hoff and Faust are entitled to qualified immunity for their conduct in pursuing Howard to arrest him for criminal flight.
E. In Count III of their complaint, appellees allege that officers Hoff and Faust conspired to violate Slusarchuk’s and Stebleton’s civil rights, including their substantive due process rights. Absent a constitutional violation, “there is no actionable conspiracy claim.” Cook v. Tadros, 312 F.3d 386, 388 (8th Cir.2002). Accordingly, the officers are also entitled to qualified immunity from appellees’ substantive due process conspiracy claims. See Pfannstiel v. City of Marion, 918 F.2d 1178, 1188 (5th Cir.1990).
The October 31, 2002 order of the district court is reversed insofar as it denied officers Hoff and Faust qualified immunity from appellees’ substantive due process damage claims and their related
BRIGHT, Circuit Judge, concurring.
In this case a catastrophe occurred. Jennifer Stebleton and Michael Slusarchuk drove into the path of a high-speed chase. Stebleton died at the scene. Slusarchuk sustained serious injuries, leaving him a paraplegic. Rico Howard, who fled police officers, stands convicted of second degree murder. This chain of events started when two Minneapolis Police Officers, Jon Hoff and Lance Faust, incorrectly believed a probable cause pick-up existed for Rico
Slusarchuk and Stebleton’s heirs sought compensation for alleged violations of their constitutional rights against the police officers. The district court determined that “[a] reasonable jury could conclude that the officers’ initial decision to stop a law-abiding Rico Howard amounts to the type of conduct to which the Supreme Court referred when recognizing that a
Precedent does not support the decision of the district judge. Because in this case under this court’s decision, the officers need not explain or account for their actions to Slusarchuk and Stebleton’s heirs in federal court. Thus, I add my additional comments to the opinion of the court.
While I join in the opinion, I emphasize Chief Judge Loken’s statement in Helseth v. Burch, 258 F.3d 867 (8th Cir.2001), that cases of this kind may call for a legislative remedy. Helseth addressed another high-speed police pursuit case, resulting in the death of an innocent bystander. Chief Judge Loken wrote: “Society could reasonably decide that an innocent bystander injured during such high-speed police pursuits should be compensated from the public coffers. But that is a legislative decision.” Id. at 872 (noting that under Minnesota law a police officer has official immunity from claims for injuries resulting from engaging in and continuing a high-speed pursuit, citing Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn.1992)).
High-speed pursuits by police, while sometimes justified by the circumstances, may in many other cases be an unwise police maneuver posing high risk of injury or death to the public as well as participants in the chase. I believe that in cases of improper police conduct in highway motor vehicle chases, state law, not federal law, should provide for an appropriate remedy to innocent victims, such as the victims in this case.
With the above comments, I join in the opinion of this court.