346 F.3d 1178 (8th Cir. 2003), 02-3601, Slusarchuk v. Hoff

Docket Nº:02-3601
Citation:346 F.3d 1178
Party Name:Slusarchuk v. Hoff
Case Date:October 22, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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346 F.3d 1178 (8th Cir. 2003)

Michael SLUSARCHUK; Elaine Stebleton, individually and as trustee on behalf of the heirs of Jennifer Stebleton, Plaintiffs--Appellees,


Jon HOFF; Lance Faust, Defendants--Appellants.

No. 02-3601.

United States Court of Appeals, Eighth Circuit

October 22, 2003

        Submitted: May 14, 2003.

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[Copyrighted Material Omitted ]

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        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.

        LOKEN, Chief 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 § 1983 action against the two police officers and the City of Minneapolis, asserting Fourth Amendment, substantive due process, and conspiracy claims. After defendants moved for summary judgment, plaintiffs abandoned their Fourth Amendment claims and their claims against the City. The district court denied the officers' motion for summary judgment on the substantive due process claims and the related conspiracy claims. Slusarchuk v. Hoff, 228 F.Supp.2d 1007, 1018 (D.Minn.2002). Officers Hoff and Faust appeal, arguing they are entitled to qualified immunity. We have jurisdiction over an interlocutory appeal of a qualified immunity denial, but at this summary judgment stage of the proceedings, we must accept as true the facts alleged by the nonmoving parties, appellees Slusarchuk and Stebleton's heirs. See King v. Beavers, 148 F.3d 1031, 1032-33 (8th Cir.), cert. denied, 525 U.S. 1002, 119 S.Ct. 513, 142 L.Ed.2d 426 (1998). We reverse.


        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 intersection

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at fifty to sixty miles per hour. Two blocks later, Howard drove through another stop sign and collided with the car in which Stebleton and Slusarchuk were riding. Howard entered the intersection at about seventy miles per hour and did not brake prior to the collision. Stebleton was killed instantly. Slusarchuk suffered multiple injuries and is confined to a wheelchair for the rest of his life.

        Howard pleaded guilty to second degree murder in state court. Slusarchuk and Stebleton's heirs then commenced this § 1983 action. In the district court, officers Hoff and Faust argued they are entitled to qualified immunity under County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), a police pursuit case in which the Supreme Court held that intent to harm is the applicable substantive due process standard. Plaintiffs argued that the less onerous deliberate indifference standard applies, and alternatively that the officers evidenced the requisite intent to harm when they attempted to stop Howard while lacking probable cause to believe that criminal activity was afoot. The district court denied the officers' motion because "[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 § 1983 action is redressible in situations where an officer intends to worsen a suspect's legal plight." 228 F.Supp.2d at 1017.


        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.


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