495 F.3d 1260 (11th Cir. 2007), 05-17096, Beshers v. Harrison

Docket Nº:05-17096.
Citation:495 F.3d 1260
Party Name:Jason BESHERS, Individually and as administrator of the Estate of David Beshers, Plaintiff-Appellant, v. Scott Patrick HARRISON, John Whitworth, Matt Ramey, Linda Marie Addis, Individually and in their official capacities as employees of the City of Toccoa, Georgia Police Department, et al., Defendants-Appellees.
Case Date:August 14, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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495 F.3d 1260 (11th Cir. 2007)

Jason BESHERS, Individually and as administrator of the Estate of David Beshers, Plaintiff-Appellant,

v.

Scott Patrick HARRISON, John Whitworth, Matt Ramey, Linda Marie Addis, Individually and in their official capacities as employees of the City of Toccoa, Georgia Police Department, et al., Defendants-Appellees.

No. 05-17096.

United States Court of Appeals, Eleventh Circuit.

August 14, 2007.

Page 1261

Bruce R. Millar, Jonesboro, GA, for Beshers.

L. Lee Hicks, II, John A. Dickerson, McClure, Ramsay, Dickerson & Escoe, LLP, Toccoa, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

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Before BIRCH and BLACK, Circuit Judges, and PRESNELL, [*]District Judge.

BLACK, Circuit Judge:

In this appeal, we consider whether Officer Scott Harrison, who allegedly terminated a high-speed chase by causing David Beshers' vehicle to crash, violated Beshers' Fourth Amendment right to be free from unreasonable seizures. We affirm the district court's grant of summary judgment, having determined that no constitutional violation occurred.

I. BACKGROUND1

On the afternoon of April 20, 2002, the City of Toccoa Police received a report from Bev's Quick Stop that a customer (later identified as Beshers) tried to steal beer after the clerk refused to sell it to him. The customer appeared to be intoxicated and had already been in the store a number of times that day to purchase alcohol. Officer Scott Harrison responded to Bev's Quick Stop and viewed video surveillance of the suspect's truck. Shortly after leaving Bev's, Harrison noticed a truck matching the description of the suspect vehicle at a nearby gas station. Harrison watched the truck turn out of the gas station and run a stop sign as it entered Highway 17-A, a busy four-lane road with shopping centers, fast food restaurants, Wal-Mart, and an occasional hotel on either side. Harrison activated his emergency lights, triggering his video equipment to record, and began to follow the car.

After proceeding a few hundred yards, Beshers pulled into a shopping center and stopped just long enough to let a passenger out of his car. He then drove out of the parking lot and proceeded south on Highway 17-A. Harrison turned on his sirens, called the truck's license plate into dispatch, and reported that the suspect vehicle was not stopping. Both vehicles accelerated to 55 miles per hour (mph) in the 45 mph zone. As Beshers fled, he wove through traffic, occasionally straddling both southbound lanes.

Corporal Matt Ramey and Officer Linda Addis, were traveling northbound on Highway 17-A when they heard the radio report. According to Addis, Ramey ordered her to perform a roadblock by driving the police vehicle directly in the path of Beshers' oncoming truck. Beshers swerved to avoid the roadblock, crossing the center line and driving into oncoming traffic. Beshers then returned to his proper lane and continued driving south on Highway 17-A. About this same time, Officer John Whitworth joined the pursuit.

Beshers proceeded down Highway 17-A, followed in line by Harrison, Whitworth, and Addis and Ramey. Beshers continued to weave through traffic and force numerous motorists to the side of the road. As he approached the intersection of Highway 17-A and Rose Lane, his lane of travel was blocked by a car stopped at a red light. To avoid stopping, Beshers drove onto the right shoulder of Highway 17-A. As he

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pulled alongside the car, the driver-Francis Lyon-turned right onto Rose Lane. The two cars collided. Beshers turned right and accelerated down Rose Lane.

After the collision, Whitworth took the lead pursuit position. Beshers soon turned onto Georgia Highway 145, a narrow, winding two-lane country road with homes on both sides. At this point, Harrison passed Whitworth to regain the lead pursuit position. Beshers continued to improperly pass vehicles by crossing the double center line. He also drove on the wrong side of the road and forced motorists to pull to the side of the road. In this stretch alone, Beshers crossed the center double line at least six times, while maintaining speeds between 55 and 65 mph. After multiple attempts, Harrison passed Beshers. Harrison testified he intended to encourage Beshers to slow down and to warn oncoming traffic.

Almost immediately, Beshers swerved into the northbound lane in an apparent attempt to pass Harrison. Harrison blocked Beshers by swerving in front of him, and Beshers' truck rammed into the back of the police cruiser.2Beshers then swerved back to the southbound lane and Harrison followed. Beshers drove off the road and attempted to pass Harrison on the right shoulder. As Beshers came around the front of the police cruiser and tried to return to the road, the front passenger side of Harrison's cruiser clipped the rear quarter of Beshers' truck, causing it to flip several times.3 Beshers died on impact. 4

On March 10, 2004, Beshers' son, Jason Beshers (Appellant) filed suit under 42 U.S.C. § 1983 against the City of Toccoa (City), Toccoa Chief of Police Frank Strickland, and Toccoa Officers Scott Harrison, John Whitworth, Matthew Ramey, and Linda Addis (collectively Defendants), alleging, inter alia, a violation of his Fourth Amendment right to be free from unreasonable searches and seizures.5 In response, Defendants filed a motion for summary judgment, claiming the individual

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defendants were entitled to qualified immunity. They also argued Appellant could not provide evidence to support a claim for supervisor or municipal liability.

On November 17, 2004, the district court granted the motion for summary judgment as to all Defendants. First, the court determined there was no evidence Officer Harrison intentionally caused his vehicle to collide with Beshers, so no Fourth Amendment seizure occurred. In the alternative, the court concluded that even if a constitutional violation occurred, Harrison would be entitled to qualified immunity because there was no "clearly established" law that would have put Harrison on notice that his conduct violated Beshers' constitutional rights. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982) (holding that qualified immunity shields government officials from liability if their acts do not violate "clearly established statutory or constitutional rights of which a reasonable person would have known"). The district court explained that under the then-controlling law of Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S.Ct. 1694, 1701, 85 L.Ed.2d 1 (1985), a police officer could use deadly force to seize a fleeing felony suspect only when the officer (1)"ha[d] probable cause to believe that the suspect pose[d] a threat of serious physical harm, either to the officer or others"; (2) reasonably believed that the use of deadly force was necessary to prevent escape; and (3) gave a warning, if feasible, about the possible use of deadly force. The court found Harrison had probable cause to believe Beshers posed an immediate threat to others because he was driving erratically, was suspected to be intoxicated, and had struck another motorist with his vehicle. The court thus concluded it was not "obvious" that Garner prohibited the use of deadly force to stop Beshers. The court further found that Appellant failed to identify any "case that demonstrates a clearly established rule prohibiting police officers from engaging in high-speed pursuits or attempting to use a rolling roadblock to slow or stop a fleeing suspect who the officers reasonably suspect poses a danger to others."6

On December 15, 2005, Jason Beshers timely appealed the district court's grant of summary judgment. After initial briefing and oral argument, the Supreme Court issued Scott v. Harris, --- U.S. ----, 127 S.Ct. 1769, 1774, 167 L.Ed.2d 686 (2007), which discusses the use of deadly force during a high-speed police pursuit. After analyzing the impact of Harris and carefully reviewing the record, we affirm the district court's grant of summary judgment and hold that Harrison did not violate Beshers' Fourth Amendment right to be free from excessive force during a seizure 7

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II. DISCUSSION

Appellant argues, inter alia, the district court erred by granting summary judgment in favor of Harrison after (1) finding Beshers was not subject to an unlawful seizure in violation of the Fourth Amendment, and (2) determining that even if a violation occurred, Officer Harrison was nonetheless entitled to qualified immunity. We review the district court's grant of summary judgment de novo, resolving all genuine disputes of material fact in favor of Beshers. Skrtich v. Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Harrison's entitlement to qualified immunity is a question of law to be reviewed de novo. Cagle v. Sutherland, 334 F.3d 980, 985 (11th Cir. 2003).

Qualified immunity protects government officials performing discretionary functions from individual liability as long 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, 2738, 73 L.Ed.2d 396 (1982)). "The purpose of this immunity is to allow governmental officials to carry out their discretionary duties without the fear of personal liability or harassing litigation...

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