Timothy Helseth v. John Burch, in His Individual Capacity

207, 96-C-7872, аrguments 1998 WL fees based on the number No. No. Dist. 1998). (N.D.Ill. Mar.31, by Depart- *11 party. Perhaps made each the short, Department’s In the disagree. than responsible We ment is less the Local impact had no in the district court actions attorneys’ in- Defendants for the fees in incurred parents the fees Robert’s on but, during appeal curred the first as proceedings. administrative the noted, Judge Easterbrook “allocation of invariably approximate. this sort is This Moreover, D. K.Y. and Robert v. both defensible; allocation no (S.D.N.Y.1988), more is re- Sobel, F.Supp. Tonya K. v. quired.” Board Educ. plaintiffs rely, also upon which the (7th K.Y., City Chicago, from this case. distinguishable Cir.1988). join moved to the State Agency the Local hearing. administrative Agency the Here, at *3. neither the

1998 WL III. sought plaintiffs nor the Local Defendants AFFIRM the district court’s We join Department the the administra- parties” plaintiffs “prevailing that the were D., the proceedings. tive Robert State However, Department. the we relief re- Agency provide refused to the attorneys’ REVERSE the district court’s plaintiffs, par- but did not quested by the fees award and REMAND for the court to proceedings. ticipate the administrative plain- subtract the fees awarded for the F.Supp. at 863. The district court proceed- tiffs’ costs in the administrative hearings the administrative noted ings. Agency’s the were held to review State plaintiffs the with the provide refusal to “Having and held: de-

requested relief attend, Agency] should [State

clined from [it]self

not thus be able to immunize

liability attorney’s fees.” Id. 866-67. contrast, case, Defen- by

In this the Local pro- party were the that refused to dants Timothy HELSETH, Plaintiff- plaintiffs. requested vide the relief Appellee, Thus, proceedings administrative here Defen- only examined whether the Local refusing provide dants erred BURCH, in his individual John requested relief. There- plaintiffs with capacity, Defendant- fore, grant the district court’s reverse Appellant, attorneys’ plaintiffs for work fees to performed during pro- the administrative No. 00-3235. ceedings. Appeals, United States Court of reject Depart Finally, we Eighth Circuit. paying

ment’s invitation to absolve it from Submitted: Jan. 2001. defending plaintiffs fees incurred the merits of the district court’s decision July Filed: appeal. Although Depart the first in the first arguments ment restricted its

appeal attorneys’ question, fees

district court acted within its discretion

refusing apportionment to fine-tune the Iverson, MN, Minneapolis, K. ar-

Jon (Paul Ku- gued D. Reuvers and Jason J. bourshek, brief), Minneapolis, on the for appellant. Bennett, MN, Minneapolis, ar-

Robert (Heidi Hage- A. and Eric gued Schneider man, brief), Minnеapolis, appel- on the lee. WOLLMAN, Judge,

Before Chief McMillian, Arnold, s. richard BEAM, LOKEN, HANSEN, BOWMAN, ARNOLD, MORRIS SHEPPARD BYE, MURPHY, Judges. Circuit LOKEN, Judge. Circuit County Sacramento 833, 835, 140 L.Ed.2d (1998), Court held that “in a chase aimed at automobile suspected offender ... apprehending only purpose to cause harm unrelated to object satisfy legitimate of arrest will (“PIT”) shocking conduct three Pursuit Intervention Tactics arbitrary the element conscience, maneuvers, necessary for a [substan which the officer drives In Feist v. vehicle, violation.” alongside tive] the rear (8th 455, Simonson, 464 Cir. turns, end, and hits the vehicle’s rear caus- 2000), high-speed pursuit a which involved stop. it third PIT spin and The car, de panel a of this court stolen spun grassy vehicle into a medi- Contois’s apply the intent-to-harm clined an, off, quickly sped heading in but Contois officer “had police Lewis because the 10, on wrong Highway direction during the six- ample time to deliberate” heavily thoroughfare. traveled Another case, an intoxicated minute chase. again spun PIT maneuver Contois into the injured Timothy Helseth seriously driver median, Highway but he re-entered 10 high speed by po being pursued at while direction) (now right heading and Feist, Relying Burch. on lice officer John speeds mph. accelerated to 80 to 100 qualified denied Burch the district court Highway Contois turned onto 65 and then immunity from Helseth’s substantive due Avenue, entering neighboring 81st sub- § 42 under U.S.C. process claim Park, Spring urb of Lake where another Burch, F.Supp.2d v. 109 Helseth police joined pursuit. car Just over six (D.Minn.2000). appealed, Burch and 1078 chase, minutes after Burch entered the petition for initial en banc granted we his light ran a red and collided with a Contois Feist and reverse. review.1 We overrule truck pickup driven Helseth. The seriously passenger, crash killed Helseth’s Background. I. injured juvenile passengers in three Con- Shortly midnight August after on car, a quadriplegic. tois’s and left Helseth raced an intoxicated Everett Contois and of third Contois was tried convicted of road straight his car on a stretch degree murder and other offenses state Blaine, Minnesota, a Twin Cities suburb. court. traveling mph 111 when Contois’s car was damage Helseth filed this action Bott passed it Blaine officer William Burch, constitu- alleging numerous began pursuit, car. Bott acti- squad his arising high- from Burch’s tional violations notifying vating lights and siren speed pursuit of Contois’s vehicle. After police dispatcher of the chase. After discovery, Burch moved for successfully had evaded Bott for substantial Contois miles, stop- running stop signs summary judgment. several The district court mph, raced lights speeds of 60 to 80 he Helseth’s substantive due dismissed but Burch, joined passed who the chase as the claim, applying claim. As to that car. squad lead Feist, qualified Burch the court denied sup- immunity because the evidence could pursuit, Burch close Contois With that Burch conducted the port finding through stop signs, stopped four drove pub- with indifference to deliberate cul-de-sac, then briefly a dead-end safety rights. lic and Helseth’s Alterna- through drove two lawns and over a small Lewis, denied tively, applying the court As retaining wall another street. Con- immunity Burch because the evi- turn, qualified Burch right tois slowеd to make a finding that Burch stop support vehicle with dence could attempted to the Contois sitting Only the court en banc overrule parties 1. The in Feist settled while the offi- rehearing pend- panel decision. See United States petition cer’s en banc was the Feist Constr., Co., dismissed, Valley F.2d ing. petition with Missouri was then (8th 1984). judges dissenting. 222 F.3d at 465. Cir. four passen- high-speed police harm and his intended to Contois Feist involved chase gers by engaging being pur- in the PIT maneuvers. that ended when the stolen car im- sued hit appeals qualified the denial of Feist’s vehicle head-on clear, mph. Eschewing the intent-to-harm munity. Lewis makes in ‍‌​​‌​​​‌​‌​​‌‌​‌‌​‌​‌‌‌​​​​‌​​​​​​​‌‌​​​‌​​​‌‌‌‌‍consid- stan- As defense, dard of our affirmed the deni- ering qualified immunity al of qualified immunity pursuing plaintiff “determine first whether the must officer, concluding the deliber- alleged deprivation has constitution- applies high- ate indifference standard to a 5,n. right al at all.” 523 U.S. at 841 if speed pursuit pursuing police case S.Ct. 1708. That is an issue we review de ample officer “had ... time deliberate Holloway, novo. Elder v. amade deliberative decision to con- [and] 516, 1019, 114 127 S.Ct. L.Ed.2d 344 tinue the chase and to be indifferent to the (1994). obviously

dangers inherent in his conduct.” Proper Culpability II. The Standard. case, 222 F.3d at 464. In this the district court concluded that the deliberate indif- that Lewis reaffirmed the substantive ference standard apply should because component pro- of the Due Process Clause Burch, Feist, in like the officer “en- private tects a citizen an abuse of gaged conscious deliberation rather than power by an executive officiаl that “shocks Helseth, reflexive conduct.” 109 the conscience.” Lewis involved a F.Supp.2d at 1076. damage by motorcycle claim a passenger injured deputy at the end of a sheriffs principal problem Our with the high-speed chase. The Ninth Circuit re- panel paid decision Feist is that the too grant summary judgment versed the to Supreme holding little heed to the Court’s deputy, concluding that appropri- “the Lewis, relying primarily instead aon degree ate of fault to applied high- be portion justification of the Court’s for that speed police pursuits is deliberate indiffer- holding. The Court in Lewis was careful to, for, ence or disregard per- reckless holding paragraph to state its the first right to personal security.” son’s life and opinion high-speed automo —“in 434, County, Lewis Sacramento 98 F.3d chase aimed at apprehending bile a sus (9th Cir.1996). Court pected ... only purpose offender reversed. explained The Court that cause harm legitimate unrelated to the task was to determine culpabil- the level of object of satisfy arrest will the element of ity which in this context “is so egregious, arbitrary shocking conduct to the con outrageous, so that it fairly be said to science, necessary for a [substantive] due shock contemporary conscience.” 523 836, process violation.” 523 at U.S. 849, U.S. at 848 n. 8 & 118 S.Ct. 1708. S.Ct. 1708. The Court restated its cate high-speed police pursuits, For the Court gorical opinion— rule toward the end of its rejected the deliberate indifference stan- that high-speed “we hold chases with no dard, which it characterized as “midlev- intent to harm suspects physically or to el” fault standard. Analogizing pur- such legal plight worsen their give do not rise to riots, prison suits to the Court concluded liability under the Fourteenth Amend “only purpose to cause harm unre- ment, by redressible an action under legitimate object lated to the of arrest will § 1983.” at Id. 118 S.Ct. 1708. For satisfy the element arbitrary courts, conduct an explicit lower federal Su conscience, shocking necessary for a preme Court is like a statute in violation.” plain obeyed. 523 U.S. at its language must be 118 S.Ct. 1708. Accord Kinstler v. Reliance First Std. Life (2d Co., “might than intent-to-harm cause sus- 250-51 Cir. less Ins. often, acci- 1999). pects increasing in flee more plainly stated here,” kind dents of the which occurred standard, de rather than the tеnt-to-harm (Kennedy, 523 U.S. at 118 S.Ct. 1708 standard, applies to indifference liberate J., concurring); and the belief of at least ap police pursuits aimed high-speed question some Justices that the suspected offenders.2 prehending liability driving during officer for reckless sure, the Court in Lewis To be high-speed pursuits should be decided that the deliberate indifference explained government, the elected branches actual appropriate “only when standard is 864-65, (Seaba, J., practical.” 523 U.S. at deliberation is concurring).3 saw panel 1708. The Feist Since all other circuits that have reject an invitation to language as in applied examined the issue have governing intent-to-harm as the high-speed police standard in tent-to-harm say, with judge jury or a could whenеver cases, regard po pursuits without hindsight, that an officer the wisdom tentially limiting factors identified had “am engaged length pursuit, Feist —the reasoning But ple time to deliberate.” training experience, the officer’s that eviscer only produces not standard misconduct, severity suspect’s of the or the gives it too holding ates the of also perceived danger public to the in continu other bases recognition little Court’s pursuit. Trigalet City v. See historical reluctance for that —its (10th Tulsa, Cir.2001); 1150, 239 F.3d 1155 due expand concept “to substantive Hillside, Township Davis v. 190 F.3d 842, 1708; 523 U.S. at 118 S.Ct. process,” (3d denied, 167, Cir.1999), cert. 528 170 Albers, Whitley explicit its rebanee on v. 982, 1138, 145 932 120 S.Ct. L.Ed.2d U.S. 1078, 312, 320, 106 89 475 U.S. ‍‌​​‌​​​‌​‌​​‌‌​‌‌​‌​‌‌‌​​​​‌​​​​​​​‌‌​​​‌​​​‌‌‌‌‍S.Ct. Block, 1169, (2000); v. 175 F.3d Onossian (1986), adopted the in L.Ed.2d 251 which (9th denied, Cir.), 1171-72 cert. pris tent-to-harm standard for two-hour 498, 1004, 120 145 L.Ed.2d 385 S.Ct. 853-54, 1708; riot, on 523 U.S. at 118 S.Ct. (1999); Lynch, v. 1998 WL Salamacha speak “it makes sense to its doubt whether (2d 1998). 743905, *2 Sept.25, at Cir. We in the case of indifference as deliberate join circuits and overrule Feist. now those 851, pursuit,” 523 at sudden hold that the intent-to-harm standard We 1708; recognition police its officers applies to all 1983 substantive of Lewis high-speed lawlessness are confronting upon claims based the conduct “subject countervailing [law] enforce public engaged high-speed officials 855, considerations,” apprehending ment 523 U.S. at 118 chase aimed at automobile 1708; suspected any standard offender. S.Ct. its concern clarity array of the Court's joined of views and the 2. Six Justices Justice Souter's holding, to infer that a ma- we find no basis opinion Lewis. Justice Stevens concurred jority Court would now from grant- retreat judgment because he would have in the bright-line adоpt the standard and immunity, thereby Lewis's deputy qualified ed the fact-intensive, hindsight-oriented approach of avoiding at the constitutional issue. 523 U.S. panel in Feist. Scalia and 118 S.Ct. 1708. Justices judgment Thomas concurred in the because they rejected have the shocks-the-con- law a officer has would 3. Under Minnesota injuries immunity and held that there is no from claims for science standard official engage right in and "substantive-due-process to be free from his or her decision caused high-speed pursuit. Pletan v. during police conduct a car chase.” continue Gaines, reckless 1992). (Minn. N.W.2d Given this 523 U.S. at 118 S.Ct. 1708. eventually flight. Contois high-speed Burch Did Officer III. vehicle, into Helseth’s with crashed Intend To Harm? time, Burch had pursuit. At that still Feist, agree overrule Although we than that inherent more intent to harm nо intent “that the Lewis its decision with suspected pursuit any regardless of whether applies appeal, points Helseth offender. On hurt.” 222 F.3d at bystander is suspect or testimony that he felt deposition Contois’s Onossian, 175 at 1171— F.3d 462. Accord aggressive Burch’s terrorized Burch sum- court denied 72. The district like v. argues that this case is Checki under the intent-to-harm mary judgment (5th Cir.1986), Webb, F.2d 534 which Burch’s deliberate ram- standard because example an the Court Lewis cited as in four PIT ma- ming of Contois’s legit- to cause harm unrelated to the intent jury permit reasonable neuvers would at object imate of an arrest. 523 U.S. Burch intend- facts that “infer from these n. 1708. But unlike the law- juvenile and the three ed to harm Contois Checki, who were abiding citizens F.Supp.2d in his car.” passengers in an by police for miles officers hounded vehicle, was a unmarked Contois decision con The district court’s criminal, irresponsible high-speed whose Hillside, Township flicts with Davis endangered countless citizens and driving the Third where Circuit bystander ultimately killed one innocent ramming of a that deliberate concluded another, Timothy Helseth. and maimed permit not suspect’s car “does Burch and the other officers who to harm” under Lewis. inference of intent this menace risked their lives to remove in Davis. agree with the decision We guilty not public highways from the were standard, “only pur applying the Lewis conscience-shocking intent to harm. of legiti pose harm unrelated to the to cause Society reasonably could decide that an satisfy the ele arrest will object mate injured during such bystander innoсent arbitrary shocking conduct ment of high-speed police pursuits should be com- conscience, necessary process for a due But that pensated public from the coffers. 118 S.Ct. 1708 violation.” 523 U.S. was no legislative is a decision. There added). Here, undisputed (emphasis rights of Helseth’s under the Due violation employed the PIT evidence is that 18, 2000, August or- Process Clause. attempt stop in an the flee maneuvers part, in of the district court is reversed der apprehend and its driv ing Contois entry of an and the case is remanded for only harm intended this con er. The § com- dismissing order Helseth’s 1983 legitimate incidental to Burch’s duct was plaint. That intent objective arresting Contois. law, not, as a matter of establish

does McMILLIAN, dissenting. Judge, Circuit violation.4 substantive Bye’s opinion Moreover, join Judge in I in Part II of the PIT maneuvers failed dissenting part, concurring part objective, and Contois continued their (1989). stopping 628 But Contois eluded arrest the Con- 4. Had Burch succeeded vehicle, effecting challeng- such a flight. tois his actions A 1983 claim resumed his subject to a reason- seizure would have been ing pursuit must be based Burch's continued challenge Lewis, the Fourth ableness under Amend- process. upon substantive due See County Inyo, See ment. Brower U.S. at 842-45 & 118 S.Ct. 1708. n. 593, 599-600, 1378, 103 L.Ed.2d 109 S.Ct. because, assuming purposes analysis position took the that the Lewis Court did Supreme that the adopted per Court se not intend to create a mechanical rule to in County Lewis, rule Sacramento v. applied blindly, be and that intervening 140 L.Ed.2d acts, such as egregious beyond acts instan- (1998) (Lеwis), I agree that there reactions, is, taneous that when actual de- was sufficient evidence of intent to harm to practical, liberation is could warrant defeat the motion for summary judgment application of the deliberate indifference on the basis of qualified immunity. I also standard. F.3d at 461. says Lewis agree Judge Bye’s with comments criticiz- exactly that. 523 U.S. at analysis, the Lewis I sepa- but write 1708. rately explain why I agree not do Justice Souter’s thorough examination of Supreme adopted per Court se rule issue denounces applying the Lewis, why I think that the old Lewis “like a statute its axiom that hard cases sometimes make plain language must obeyed.” be See su- applies bad law to the difference between p. pra Nevertheless, majоrity the majority opinion and panel the earlier opinion interprets say that “the opinion Simonson, in Feist v. 222 F.3d 455 standard, intent-to-harm rather than the (8th Cir.2000) (Feist). The result is that standard, deliberate applies indifference dangerous has created prece- police pursuits aimed at ap- whereby dent future applying courts prehending suspected offenders.” See su- rule of this case have no choice but to p. added). pra (emphasis One must blindly apply a rule of law without regard give greater Court credibility to the facts. than simply applying absent an Unfortunately, senior judges two evaluation the facts of a given case. who sat on Feist did not opportu- have an Every principle of upon law turns nity to hear this case argued becаuse the factual background given case. To en panel only banc involved active judges. hold ignores otherwise Justice Souter’s ad- My main concern relates to the statement monition in Lewis: majority opinion that the not, process however, Rules of due paid Feist too little to the Supreme heed subject to application in holding Court’s in mechanical un- and instead re- familiar primarily territory. lied portion on “a Deliberate indiffer- of the Court’s justification ence that for that shocks holding.” See in one supra environment p. Although may I am not patently not be so exactly egregious sure phrase means, ‍‌​​‌​​​‌​‌​​‌‌​‌‌​‌​‌‌‌​​​​‌​​​​​​​‌‌​​​‌​​​‌‌‌‌‍another, what the latter to hold that and our preserv- concern with the panel paid Feist ing too little proportions heed to the constitutional of sub- Supreme the Court’s Lewis to- process stantive due demands an exact tally obfuscates an analytical reading of analysis of any circumstances before the opinion. Feist power abuse of is condemned as con- shocking. science we have said What of majority

The opinion extracts from Lew- due process procedural in the sense is is a categorical rule that once an officer just as true here: instantaneously engages phrase process The suspected [due automobile chase of a of law] criminal- for- regardless concept of what mulates a rigid intervenes after less the and more pursuit-no instantaneous substantive fluid that envisaged due those in other process violation occurs specific absent intentional particular provisions of supra harm. See pp. &871 note 2. Feist Rights. the Bill of application Its is the drive on freeway to the cessing denial Asserted of rule. matter less median, presented the wrong side of of the appraisal tested to be is evalua- case. That for given juncture in a reassessment facts totality of of setting, consequences constitute a escalating may, in one tion which fairness, shock- aborting the than of fundamental denial the chase. Rather justice, increased, of speed sense the universal the danger the chase as circumstances, and in in other also may, vehicles pursuing of and number considerations, fall light other of Simonson’s A review increased.... denial. of such short other conduct, Lewis and light 1708, citing gen- that reveals precedent, established 523 U.S. 455, 462, as to whether exist Brady, of fact Betts v. uine issues (1942). L.Ed. the conscience” “shocked his actions of a substantive purpose circum- analysis of the “exact Clearly, claim. requires more case given in a stances” rule of particular rubber-stamping than (emphasis at 18-19 op. and order Mem. Court en- suggest To law. Feist, 222 F.3d at 461. added), cited approach in such mechanical dorsed and can- not findings of fact should Those jurispru- any sense give Lewis fails clearly they are aside unless not be set highest court to the credit dential argued no one Feist erroneous. apply the requires land. Lewis clearly findings were judge’s district totality of facts in “the analysis” of “exact erroneous. Lewis holding in case.” The given involved high-speed chase high-speed chase recovery as deny In Feist it extended seventy-five seconds. However, Feist case. involved opinion in minutes. The six over this case from both distinguishable the fact Offi- ignores Feist overruling and Lewis. made conscious decision cer Simonson what explained, Feist panel in As the pursue the driver Offi- an instantaneous began as per seventy miles speeds it follow high-speed chase in a cer Simonson down hour, traveling wrong direction way. along the significantly changed 1-94, covering 1.2 Highway Interstate upon the great reliance placed Feist fleeing auto- miles, pursuing well as as by the dis- fact findings made specific one- wrong way down several mobile judge: triсt pursued Each time Simonson way streets. af- [wjhile be should Simonson Officer street, deliberately chose he one-way on a decision, initial for his deference forded moving as a vehicles on-coming to use the have he did not the contention that the juveniles. Si- fleeing the against blockade ris- the to ability assess time or by Minne- trained the had been monson in the situ- danger potential ing levels of duplicate to Department not apolis Police analy- subject to further should be ation driver, not to chase fleeing the path the chase, during the many points sis. At public the put pursue to would when bal- to opportunity the had Simonson upon the wisdom to danger appre- goal reflect the law ance enforcement Notwith- pursuit. the each escalation a stolen use hending Shannon deliber- training, Simonson standing such likely carry- (a penalty low-level vehicle to the danger the to increase ately chose time) the threat to prison ing no proceeded deliberate public. Simonson turn onto Each new public. general the training. that disregard the ac- especially one-way streets BYE, eschewing In to egregious addition the Judge, Circuit concurring part Simonson, conduct of Officer the dissenting part, and with whom opinion here did not examine the testimo- McMILLIAN, Judge, joins Circuit in Part ny in Feist. Other officers testified at II. trial that Simonson had created an unrea- I reluctantly concur in Part II of the sonable of danger public by risk majority’s opinion I agree because

pursuing fleeing driving the vehicle and County Sacramento v. through the 1-94 tunnel wrong way. the 140 L.Ed.2d 1043 compelling supported This evidence the (1998),requires plaintiff satisfy to district court’s conclusion that “Simonson’s the “intent to harm” in any standard high give slowly instinctive decision to chase speed pursuit case; I separately write to escalated into a high-speed involving chase explain why I believe the “deliberate indif- travel, wrong-way thereby increasing the ference” standard would appropri- be more potential general for harm to public.” in many high speed ate I cases. 222 F.3d at 461. respectfully dissent III from Part of the conclusion, say let me that in Feist majority’s opinion, I however. believe that the unconstitutional action of Officer Si- Timothy Helseth summary judg- survives upon monson was not based initial ment even when applying higher “in- (in- pursue decision to tent to harm” required by Lewis. deed, agreed Feist with the district court that the judgment instantaneous and reac- fully justified,

tion were see id. at I 464), facts, upon but the intervening upon premise rests most significant of which was Simonson’s trained officers are unable to decision, deliberate deliberation, after actual pur- during the course of a high speed pursuit, sue vehicle the wrong way on no matter its duration. I question that one-way streets and onto the interstate premise. Behavioral highway, through tunnel, training and tactical darkened into oncoming enables (particularly traffic. See id. at officers those who many have been high speed involved If majority opinion’s interpretation chases, Burch) process such as John of Lewis is that no high-speed pursuits by events a rapidly-evolving situation as if officers, regardless of intervening they occurred at a more pace. deliberate events, deliberation, including actual pro- respect, analogous officers are vide a substantive due claim ab- professional study athletes who film and harm, sent intent to obviously cause then plot gameplans speed to “slow” the of a wrongly However, Feist was decided. game, enabling them to understand and rejected appli- Feist a mechanical instantaneously complex, react changing instead, cation and followed Lewis’s man- circumstances. Because officers are perform date to analysis exact regularly adjust trained to to fast-paced totality in given of facts case. Feist was situations, expect must their con- upon principles based set out in Lewis. usually duct will be despite The opinion states that Feist deliberate — pace at which events occur to un- should be ignored overruled because it eye. A trained reading suggests Lewis. fair that we can’t Feist would dic- expect act, they tate that the mechanical officers to think application of while all high-speed police proposition Lewis to might every chases mis- offend well- reads Lewis. trained country. officer this case, correct. those in A. That is this as well as

The facts of (8th Simonson, 222 ‍‌​​‌​​​‌​‌​​‌‌​‌‌​‌​‌‌‌​​​​‌​​​​​​​‌‌​​​‌​​​‌‌‌‌‍Cir. F.3d 455 Feist v. case,

2000), my point. prove regula police department City of Blame’s Q. You had time to consider whether required offi high speed pursuits tions on po- continue the chase into another dur to make conscious deliberations cers jurisdiction. lice of a chase: ing the course A. That is correct. pursuit in a must con- involved Officers Id. at 480-82. whether the serious- tinually question reasonably war- the violation ness of Similarly, Feist involved officer who pursuit. A continuation of the rants high participated had over one hundred there discontinued when pursuit shall be speed many points during chases who “[a]t pursuing to the officers danger is a clear had the [of duration] the chase extended pursuing officers public.... or the the law enforce- opportunity to balance present danger, serious- must consider suspect] goal apprehending [the ment crime, length pursuit, whether ness of (a low-level for use of stolen vehicle deadly by force application or not the time) penalty likely carrying prison no justified, and the pursuing Officer general public.” against the threat to the identifying suspect at a possibility of 222 F.3d at 461. determining whether or later time when pursuit. not to continue the I believe that officers deliberate Because added). (emphasis App. at 333 I am our pursuits, most frustrated Indeed, assess, basis, Burch admitted that he inability case-by-case Officer on a pursuit: during had time to deliberate indifference” stan whether “deliberate training Q. policy your But apply particular high to a dard should you your experience teach speed adopting the “intent to pursuit. in a you doing think what about standard, com harm” Court high spеed pursuit and whether the ability pared an officer’s to deliberate dur ap- risk of the is worth the with that of a high speed chase prehension, correct. prison responding official to a riot. See A. Sure. 852-53, 523 U.S. at 118 S.Ct. 1708 Q. just supposed to be And that is not Albers, (discussing Whitley v. reflex, supposed that is to be a (1986)). I 89 L.Ed.2d thought process, correct. comparison unhelpful. “[O]ur find A. Sure. preserving concern with the constitutional Q. you And had time to make decisions de proportions substantive in the about what tactics to use analysis an exact circum mands ” chase, correct? deciding shocks the stances before what A. Sure. conscience. Id.

Q. You had time to consider whether added). (emphasis conscience One’s or another you try type one would shocked dеliberate indifference not be maneuvers, correct? ramming rioting prisoners. assessing But A. Sure. in a high exact circumstances involved duration, an offi

speed pursuit of extended rights cer’s deliberate indifference Q. You had time to consider the me- bystanders may of innocent motorists damage you chanical had done very well shock the conscience. to the vehicle. Furthermore, the “intent to harm Bott, sus- 463-68. officer, Officer the original pects” adopted by Supreme standard terminated the chase suspect after the ve- § ill type Court fits with the 1983 claim hicle backyards; drove into residential but involved here —that of an innocent motor- Burch continued the for an extend- injured ist as the high speed result of a period ed of time after that. Id. at pursuit. Oddly, under 291, 341 349. test, Court’s an innocent motorist need not significantly, Most on four occasions prove that an officer intended to harm him, consciously employed PIT maneu but that the officer intended to harm vers to suspect Why intentionally ram suspect are we concerned with an vehi suspect, juror officer’s intent to harm a 345-46, 440-42, cle. Id. at 471. The wonder, might when the innocent motor- City of Blame’s department regula ist’s constitutional rights are at stake? proscribe tions PIT except maneuvers The “deliberate indifference” test is more the most extreme circumstances. Id. at compatible § with the 1983 claim of an 330. PIT maneuvers are considered to be motorist, innocent who would then be re- deadly force when used on a vehicle mov quired prove deliberate indifference to (“intentional ing high speeds ramming his own constitutional rights. high probability causes the inju of serious For the reasons stated majority, death”). ry or Id. Based on the Blaine however, I agree that the Supreme Court regulations, as well as his training, Burch held that satisfy 1983 claimants must knew or should have known that intention heightened, intent-to-harm al officer-initiated contact with a high high Thus, speed pursuit cases. irrespec- speed vehicle was considered the use of my differing tive of views on a well-trained deadly force. Id. at 46-49. deliberate, ability officer’s I turn my circumstances, Under these Officer attention proof to Mr. Helseth’s that Offi- Burch’s cer Burch conduct shocks the year- intended to harm conscience. nineteen Contois, old fleeing suspect knowingly Everett in He deliberately deadly used this case. force a suspect only whose known offenses were speeding misdemeanors —

II officer. Officer Burch Helseth introduced substantial evidence could have terminated this chase after he tending prove that Burch intended to plate5 identified vehicle’s license so injure Contois. Burch purposefully placed that he or other subsequent- officers could position himself in a to take over as the ly Instead, investigated have the matter. pursuer lead in an ongoing App. chase. at Burch continued a ultimately chase that 345. He chased vehicle at ex- produced the death and paralysis of inno- tremely high speeds, between 80 and 100 motorists, cent and the incarceration of pеr miles hour. Id. at 349. He chased the eighteen years Contois for third-degree wall, retaining plowing over a murder. through several backyards residential night, trees, the dark of Officer Burch’s conduct within feet of would shock the patios, 342-44, and occupied homes. Id. at conscience even if we nothing knew else recording Burch denied that he had tape identified of the radio transmissions dur- plate vehicle’s license until he A-2, was confronted Supp. Jt.App. the chase. A-3. voice, identifying plate, with his own on a By Burch had closed on hour. the time But we do. Helseth contends

about him. suspect vehicle “rogue cop” slowing pursuit, who the Burch that rare traveling 5-10 pulling thrill was over and about more than the enjoys nothing Nonetheless, Burch per miles hour. radi- pre- post-incident and rec- chase. Burch’s vehicle, intention to ram the to be true. oed ahead his strongly suggests ord Rapids squad two multiple police sped vehi- between the Coon Burch was involved (several cars, intentionally rear-ended the involving and cle collisions or accidents suspect slow-moving suspect vehicle. Id. 552- ramming of vehi- the intentional cles) and after the Contois both before 239-48, 527, 547-56. He pursuit. App. stated that Court for disciplined on several occasions his

was “only purpose a to cause harm unrelated failure to adhere “maverick behavior” legitimate object arrest will satis- of (in- procedures department policies fy arbitrary the element ‍‌​​‌​​​‌​‌​​‌‌​‌‌​‌​‌‌‌​​​​‌​​​​​​​‌‌​​​‌​​​‌‌‌‌‍of conduct shock- violations). driving Id. at cluding frequent conscience, necessary a ing to the 529^4. high speed a [in chase].” violation (emphasis disciplinary proceeding, 523 U.S. at 118 S.Ct. 1708 During a 1989 added). “if I concludes that we Burch stated have answer Officer to harm from Burch’s myself safety, call with car cannot infer intent and concern die,” only leading ramming “[t]he intentional because people going then inci- overlooks harm intended this conduct was “[Burch] chief to retort objective legitimate could die as a result dental to Burch’s the fact that someone strong- at 872. I driving.” (empha- arresting Id. at 529 Contois.” Ante of his unsafe added). disagree. During disciplinary ly sis a 1994 an commented that proceeding, arbitrator mere fact that force have “[T]he repeatedly at- City suggests it has “[t]he effectuating used while an arrest been maverick tempted [Burch’s] to reconcile automatically does not establish through variety disciplinary behavior legitimate object ‘in force was relation’ to fault or actions but he fails to admit dem- analysis.” § under a arrest at 538. onstrate remorse.” Id. Hillside, Township Davis v. (3d Cir.1999) (McKee, J., alleviated concur My concerns are somewhat added). ring) (emphasis I cannot view the fact that Burch decided retire from power executive as inci Department the Blaine Police sometime Burch’s abuse of City suspended legitimate him for unrea- dental to a law enforcement ob after the deadly by performing jective. deadly force Officer Burch’s use of sonably using con unnecessary yet PIT maneuver an- force misdeameanant February completеly unreasonable use of high speed other chase. stituted established law. squad Burch drove one of four cars force violation (two Garner, 1, 12, City Blaine and two from See Tennessee v. from the (1985) (noting 85 L.Ed.2d City Rapids) high of Coon involved in a deadly speed pursuit. spot prohibition against in the a flat use lost misdemeanant, upon stem chase he the other Blaine force when struck Rapids ming English from common law squad squads car. The two Coon jurisdictions); adopted by most American suspect took over the chase. The tire, (prohibiting the use per to 40-50 miles Minn.Stat. 609.066 slowing blew deadly prevent to escape chase, force unless misdemeanant at the start of the he peace “the officer knows or has reasonable was murderer at its end. suspeсt] grounds to believe has com- [the The correctly district court concluded attempted felony mitted or to commit a that Burch unreasonably deadly used force involving the use or threatened use of law, violation of established deadly force the officer or has [or] knows that a jury reasonable could infer from grounds suspect] reasonable to believe [the Burch’s conduct that he to “intended harm attempted has committed or to commit a juvenile Contois and the three passengers

felony if reasonably the officer believes Burch, in his car.” Helseth v. person great that the will cause death or (D.Minn.2000). F.Supp.2d I bodily person’s apprehension harm if the is would therefore affirm the district court’s added). delayed.”) (emphasis denial оf Burch’s motion summary for judgment qualified on the basis immuni- addition, I believe Burch’s inten ty. ramming tional of a misdemean- ant’s vehicle amounts to the same level of

terrorizing conduct involved in Checki v. (5th Cir.1986).6

Webb, 785 F.2d 534 when, Court referred to Checki

by negative implication, recog the Court

nized a redressible 1983 action situa

tions when an officer intends [a “to worsen

suspect’s] legal plight.” 13, 118

854 & n. hardly S.Ct. 1708. One can

dispute that legal plight Contois’s wors

ened progressed. as this chase A goes

6. Contois described state of just mind after the sudden it ... from not a cat and ramming started as follows: thing anymore, tiger mouse it's a guy going get you mouse and this to no guy just The chase started out the was chas- takes, you really matter what it so now are me, right, guy then this other shows trying get away. you trying Before were up just on the scene and he started ram- elude, maybe pull up hide and in a drive- ming me ... as soon Ias came around the way your lights by. and shut off so he drives again again corner he hit me and he hit me car, they ramming your But when start into me, again and hit me and he hit went the you option. don't have that You don't have wrong way again and he hit mе ... he hit option getting running out and when me down the road and he hit me in the ramming you. figure you he is into You if ditch and he hit me there and he hit me out, get going you you do he's to shoot so here. just trying get keep away. success[fully] I speeding, realize that I was people say crazy When I’m because I original but I would assume that the officer thought they trying there that chasing were to kill me realized that I wasn't intention- me, you police procedures if ally read endangering Every anybody else. time [ramming] deadly my there is considered force. Ba- stoplight lights was ... brake sically they trying you. are again would on to kill That is come and I take off when I well, this, no, just try saw him and kind of like a cat let's do let's and mouse not— thing guy stops. again, kind of ... He saw me kill this so he So I don't think better again.... my being terrifying take off It like a state of mind after wasn't rammed you looking ... situation out ... was for too far off base. people. cars ... App. But when all of at 272-76.

Case Details

Case Name: Timothy Helseth v. John Burch, in His Individual Capacity

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 31, 2001

Citation: 258 F.3d 867

Docket Number: 00-3235

Court Abbreviation: 8th Cir.