Roy A. PASCO, by and through his grandmother and next friend, Beverly A. PASCO; Brian K. Pasco, by and through his grandmother and next friend, Beverly A. Pasco, Plaintiffs-Appellees, v. Brad KNOBLAUCH, Defendant-Appellant.
No. 08-60242.
United States Court of Appeals, Fifth Circuit.
April 28, 2009.
566 F.3d 572
IV. Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.
William T. Siler, Jr. (argued), William Brett Harvey, Phelps Dunbar, Jackson, MS, Mark Nolan Halbert, Phelps Dunbar, Tupelo, MS, for Defendant-Appellant.
Before GARWOOD, GARZA and OWEN, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant Officer Brad Knoblauch appeals the district court‘s denial of his motion for summary judgment. For the following reasons, we reverse.
I
On April 29, 2000, Officer Brad Knoblauch (“Knoblauch“) of the Holly Springs Police Department was on a routine late-night/early-morning patrol when he observed Roy Pasco (“Pasco“) driving erratically. Believing Pasco was intoxicated, Knoblauch followed him. When Pasco failed to observe a stop sign, Knoblauch activated his lights and siren and Pasco pulled over to the side of the road. As Knoblauch exited his patrol car to approach Pasco‘s vehicle, Pasco sped off. Knoblauch returned to his car and began to chase Pasco. The pursuit took place on a rural, curvy two-lane road at speeds in excess of ninety miles per hour. One minute into the chase, Knoblauch‘s supervisor radioed an order for Knoblauch to terminate the chase.
Pasco argues that Knoblauch did not back off of the chase and instead bumped Pasco‘s car from behind, sending it off the road into a ravine. Pasco died from the injuries he suffered in the crash. For the purposes of summary judgment and this
This case has a complicated procedural history, and the instant appeal is our third consideration of this set of facts. Plaintiffs, Pasco‘s surviving family, originally sued the city of Holly Springs under
Seven weeks after our decision in Pasco II the Supreme Court decided Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), which established a rule for
II
We review the district court‘s denial of summary judgment predicated on qualified immunity de novo. Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th Cir. 2004). In an interlocutory appeal in which the defendant asserts qualified immunity, if the district court found that factual disputes exist we accept the plaintiff‘s version of the facts as true to the extent supported by the summary judgment record. Id.
Knoblauch appeals the district court‘s order denying his motion for summary judgment based on qualified immunity. In this order, as well as in the memorandum opinion explaining the reasons for the denial, the district court also granted Pasco‘s motion to strike the affirmative defense as waived. Despite this somewhat confusing posture, it is clear that the district court denied summary judgment because it found Knoblauch had waived the defense, and also because it concluded that qualified immunity would not protect Knoblauch from suit since he violated clearly established Fourth Amendment law. Importantly, the district court based both determinations on conclusions of law. Therefore, we will review the waiver issue and the Fourth Amendment issue de novo since both form the basis for the denial of summary judgment. See, e.g., Murray v. Crossmark Sales, Inc., 163 Fed.Appx. 339, 341-42 (5th Cir.2006) (unpublished) (re-viewing de novo the district court‘s sum-
III
A
We first consider our jurisdiction to hear this interlocutory appeal. Generally, denials of summary judgment are not final orders. See Mendenhall v. Riser, 213 F.3d 226, 229 (5th Cir.2000). However, the denial of qualified immunity on summary judgment is immediately appealable under the collateral order doctrine if based on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Mendenhall, 213 F.3d at 229-30. In other words, a denial of summary judgment based on qualified immunity is deemed a final decision under
Pasco argues that we lack jurisdiction to hear this appeal because there are material facts in dispute. However, the district court did not base its denial of summary judgment on the existence of material factual disputes.1 On the contrary, at the outset of its analysis the district court explicitly adopted Pasco‘s version of the facts and Knoblauch has conceded Pasco‘s version of the events for purposes of summary judgment.2 The district court engaged in a legal analysis of Fourth Amendment case law to reach its conclusion that it was clearly established in 2000 that Knoblauch‘s conduct was unlaw-
B
We now address whether the district court properly held that Knoblauch waived his defense of qualified immunity by failing to raise the defense until the motion for summary judgment. This is an issue of law over which we have jurisdiction under the collateral order doctrine. See Eddy, 256 F.3d at 209 (finding that the collateral order doctrine permitted review of the district court‘s determination that qualified immunity was waived as untimely under
As an affirmative defense, qualified immunity must be pled and proved by the defendant. See Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980);
Despite referencing the above law, the district court found waiver based solely on the fact that a fifty-two month delay existed between Knoblauch‘s first responsive pleading and his assertion of qualified immunity. The district court concluded that Pasco was presumptively prejudiced by this delay, without any analysis or description of the prejudice. However, under
Here, though Knoblauch raised qualified immunity fifty-two months after the complaint was filed, substantial time remained before trial for Pasco to respond to the defense. Knoblauch asserted qualified immunity two months before discovery was due and six months before the pretrial conference. Pasco submitted a full response to the defense to the district court and has briefed it on appeal to this court. No evidence indicates that Pasco was prejudiced by the late assertion or that Knoblauch intentionally delayed raising the defense to prejudice Pasco. On the contrary, the record indicates the delay resulted from the lengthy procedural history of this case (including numerous stays, which totaled twenty-nine months while the first two appeals were pending), combined with significant developments following the appeal in Pasco II. One such development occurred when Pasco abandoned the claim, on appeal in Pasco II, that Roy Pasco died from blunt trauma injuries inflicted by the police after he walked away from the crash.4 Further, a major legal development occurred when the Supreme Court handed down Scott v. Harris in April 2007, a month after we remanded Pasco II. Scott addressed, for the first time, the Fourth Amendment implications of a police officer ending a high-speed car chase by ramming the fleeing suspect‘s vehicle off the road. See generally Scott, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686. As we noted in Johnson, a delay in raising an affirmative defense is particularly excusable where, as here, the law was not clearly settled prior to Scott. See Johnson, 385 F.3d at 516 n. 7.
We accordingly hold that the lack of prejudice to Pasco combined with the unusual circumstances and history of this litigation indicate that Knoblauch did not waive qualified immunity.
C
We now turn to the question of whether qualified immunity protects Knoblauch from suit based on the facts as Pasco alleged them. Qualified immunity shields government officials from civil damages liability “insofar as 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). More precisely, “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right ... in the light of pre-existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). As we have held, “pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, rea-
Until recently, we resolved government officials’ qualified immunity claims under the strict two-part test mandated by the Supreme Court in Saucier v. Katz, deciding (1) whether facts alleged or shown by plaintiff make out the violation of a constitutional right, and (2) if so, whether that right was clearly established at the time of the defendant‘s alleged misconduct. See Saucier, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir.1998). However, the Supreme Court has revisited this rule and determined that the rigid two-step structure is no longer mandatory. See Pearson v. Callahan, — U.S. —, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). Accordingly, as the Court did in Pearson, we will first consider whether the officer‘s conduct violated clearly established law. Id. at 822. If we determine that the answer is no, qualified immunity will shield Knoblauch from suit.
The following undisputed facts are relevant to this question. Knoblauch and Pasco were engaged in a high-speed chase in excess of ninety miles per hour and were approaching the edge of the city. The chase occurred on a curvy two-lane road in a residential area at approximately 3:00 in the morning. Pasco was having trouble negotiating sharp curves in the road at the high rate of speed. Knoblauch testified that he observed Pasco drinking from a beverage container and suspected he was driving while intoxicated. As Pasco claims, and Knoblauch concedes, no other vehicles, pedestrians, or other bystanders were encountered during the pursuit. Knoblauch also concedes that Pasco might have decelerated at the very end of the chase, though Pasco‘s accident reconstructionist was unable to determine the exact speed of Pasco‘s vehicle when the collision occurred.
The district court concluded that Knoblauch‘s conduct violated clear Fourth Amendment law because Knoblauch “was acting contrary to police department protocol” when he bumped Pasco off the road. However, the fact that Knoblauch acted contrary to his supervisor‘s order is constitutionally irrelevant. Violations of non-federal laws cannot form a basis for liability under
The district court also found that Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), established a clear Fourth Amendment rule making Knoblauch‘s actions unconstitutional because no innocent bystanders were present. Garner involved an application of the Fourth Amendment‘s reasonableness test to the use of deadly force when a “young, slight, and unarmed” burglary suspect flees on foot. Id. at 21, 105 S.Ct. 1694.
In 2000 neither the Supreme Court nor the Fifth Circuit had spoken directly to the question of whether an officer may attempt to end a high-speed car chase by bumping the suspect off of the road. However, in 2007 the Supreme Court confronted facts similar to this case in Scott v. Harris. In Scott, a police officer rammed a fleeing suspect‘s rear bumper to end a car chase that had exceeded eighty-five miles per hour and presented a danger to the public. See Scott, 127 S.Ct. at 1772. The Court held:
A police officer‘s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.
Id. at 1779. Although this rule does not directly apply to the question of what clearly established law existed in 2000, it does give us insight into the state of the law prior to 2007 regarding a police officer ending a car chase by bumping the suspect off the road. In reaching the conclusion in Scott, the Court did not cite to any existing cases dealing with this factual situation. The Court did, however, determine that Garner could not establish a clear Fourth Amendment rule governing car chases because that case involved a suspect fleeing on foot. Id. at 1777. Scott therefore reaffirms our conclusion that Garner did not clearly establish a rule making Knoblauch‘s conduct unlawful.
In the absence of a specific rule governing the constitutionality of Knoblauch‘s actions, our inquiry turns on whether Knoblauch‘s actions were objectively reasonable. See Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (finding that a claim of “excessive force in the course of making [a] ... ‘seizure’ of [the] person ... [is] properly analyzed under the Fourth Amendment‘s ‘objective reasonableness’ standard“). This reasonableness is determined by a balancing test between “the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).
The Court‘s analysis of the reasonableness of the officer‘s actions in Scott is instructive. Though the specific facts of every car chase will be different, the Court acknowledged the generally inherent danger that suspects fleeing from police in vehicles pose to the public—even when no bystanders or other motorists are immediately present. At the moment the officer in Scott rammed the suspect‘s vehicle, it was not threatening any other vehicles or pedestrians. See Scott, 127 S.Ct. at 1776 n. 7. In spite of this fact, the Court concluded that the suspect “posed an actual and imminent threat to the lives of any
Importantly, the Court observed that the balancing test judging the reasonableness of the officer‘s conduct must consider not only the number of lives potentially at risk, but also the relative culpability of those threatened. Id. The Court acknowledged that risks were present whether the officer ended the chase or allowed the suspect to flee unabated; however, the fleeing suspect had intentionally placed himself and the public in danger, while any bystanders who could be injured by the fleeing suspect had done nothing to create the dangerous situation. Id. Therefore, though the officer was stuck between “two evils” in either possibly harming the fleeing suspect or possibly allowing innocent parties to be injured, it was reasonable for the officer to choose to end the chase in light of the relative culpability of those at risk. Id.
Here, Pasco was fortunate enough not to have encountered any pedestrians or other motorists during his high-speed and reckless attempt to evade Knoblauch. We will never know whether Pasco would have harmed someone if Knoblauch had not ended the chase, but the undisputed facts indicate that Pasco would have posed a serious threat to anyone he encountered. Pasco was driving recklessly, at ninety miles per hour down a curvy two-lane road. Knoblauch suspected that he might be driving under the influence of alcohol.5 Knoblauch had no way of knowing if another vehicle would enter Pasco‘s path or whether a person might have been walking around the next corner. He made a quick decision, under stressful circumstances, to try to end the serious danger Pasco posed before any of these potentially tragic situations occurred.
The early morning hours, the rural nature of the area, and the fact that Pasco may have slowed down immediately before impact do not render Knoblauch‘s actions unreasonable. Like in Scott, it was Pasco himself who created this dangerous situation and put himself at risk when he fled from the officers. As indicated by the undisputed facts of the chase, it was reasonable for Knoblauch to believe that Pasco would continue to pose a danger to anyone he might encounter. Stuck between the choice of letting a presumptively intoxicated and reckless driver continue unabated or bumping the suspect off the road, Knoblauch chose the course of action that would potentially save the lives of individuals who had no part in creating the danger. Although this choice ended tragically with Pasco‘s death, the balancing test indicates that Knoblauch‘s actions were reasonable.
Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The immunity inquiry is intended to reflect the understanding that “reasonable mistakes can be made as to the legal constraints on particular police conduct.” Saucier, 533 U.S. at 205, 121 S.Ct. 2151. Importantly, qualified immunity purposefully shields police officers’ split-second decisions made without clear guidance from legal rulings: “Qualified immunity operates ... to protect officers from the sometimes hazy border between excessive and acceptable force, and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.” Id. at 205-06, 121 S.Ct. 2151 (internal quotation and citation omitted). We find that Knoblauch‘s actions in terminating the serious threat posed by an intoxicated suspect fleeing down a narrow, curvy highway at excessive rates of speed did not violate clearly established law, and were reasonable under the circumstances. Accordingly, qualified immunity protects Knoblauch from suit.
For the foregoing reasons, we REVERSE the district court‘s denial of Knoblauch‘s motion for summary judgment.
GARWOOD, Circuit Judge, dissenting:
I respectfully dissent. The record evidence does not clearly establish the distance, traffic and related conditions between where Pasco‘s car was when Knoblauch received the order from his supervisor not to continue pursuit and the point at which Pasco‘s car went off the road. The reason for this lack of information is that Knoblauch on his deposition claimed to have not been present when Pasco‘s vehicle went off the road and down the embankment, and claimed to have broken off pursuit when he was told to do so. Crucially, we certainly do not know if, as the majority assumes, Pasco did not slow down until “immediately before” he went down the embankment. Moreover, I note that there is evidence that Knoblauch told Pasco‘s sister that he did not terminate pursuit as he had been instructed. Further, Knoblauch admitted that in his pursuit of Pasco prior to being ordered to terminate (and doing so), no vehicles, bystanders or pedestrians were encountered. Nor did Knoblauch ever testify or state under oath that he struck Pasco‘s vehicle to prevent it from endangering others (or for any other reason). I cannot conclude that there are no factual disputes material to the issue of qualified immunity. In this respect the case is quite unlike Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).