993 F.2d 1328 (8th Cir. 1993), 92-2245, Cole v. Bone

Docket Nº:92-2245.
Citation:993 F.2d 1328
Party Name:Elaine COLE; Christina Elaine Cole; Carlie Deigh Cole, by and through next friend Elaine Cole; Candie Leigh Cole, by and through next friend Elaine Cole, Appellees, v. C.E. BONE, Trooper; Nathan K. Brown, Trooper; F.T. Martinez, Jr., Trooper; Royal F. Messick, Trooper; Randall R. Rice, Trooper; Gilbert L. Rodenburg, Trooper; Jeffrey L. Smith, Troop
Case Date:May 17, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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993 F.2d 1328 (8th Cir. 1993)

Elaine COLE; Christina Elaine Cole; Carlie Deigh Cole, by

and through next friend Elaine Cole; Candie Leigh

Cole, by and through next friend Elaine

Cole, Appellees,


C.E. BONE, Trooper; Nathan K. Brown, Trooper; F.T.

Martinez, Jr., Trooper; Royal F. Messick, Trooper; Randall

R. Rice, Trooper; Gilbert L. Rodenburg, Trooper; Jeffrey

L. Smith, Trooper; D.S. Stewart, Trooper; Randall S.

Beydler, Corporal; D.E. Holt, Corporal; F.M. Mills,

Lieutenant; P.C. Spire, Sargeant; C.E. Fisher, Colonel;

John H. Ford, Colonel; E.F. Christman, Major; R.G. Biele,

Captain; G.P. Corbin, Captain, Appellants.

No. 92-2245.

United States Court of Appeals, Eighth Circuit

May 17, 1993

Submitted Jan. 14, 1993.

Rehearing and Rehearing En Banc Denied July 12, 1993.

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[Copyrighted Material Omitted]

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Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, MO argued (Elizabeth L. Ziegler, on the brief), for appellants.

Justine E. Del Muro, Kansas City, MO, argued (Dennis E. Egan, on the brief), for appellees.

Before WOLLMAN and BEAM, Circuit Judges, and BOGUE, [*] Senior District Judge.

WOLLMAN, Circuit Judge.

The defendants appeal from the district court's denial of their motion for summary judgment in this action brought under 42 U.S.C. § 1983 against seventeen members of the Missouri State Highway Patrol. We reverse and remand.


This case arises from a high speed pursuit on the east-bound lane of Interstate 70 that ended with the death of David Cole. Around noon on July 4, 1988, David Cole and his brother, Todd, were on their way to Kentucky in an eighteen-wheel tractor-trailer unit on their return trip from New Mexico. For some unknown reason, David Cole drove the truck at a high speed through a toll booth in Bonner Springs, Kansas, without stopping to pay the toll. When a Kansas state trooper began pursuing the truck, David refused to stop. Todd pleaded with David to pull over, but David responded that he had the situation under control and began driving even faster. As the truck approached Kansas City, Missouri, and the traffic became heavier, David Cole continued to drive recklessly. Kansas City police officers began pursuing the truck once it crossed the state line and entered the city.

Several Missouri State Highway Patrolmen became involved in the pursuit east of Kansas City, about twenty miles into Missouri. These patrolmen had learned of the fleeing truck over their police radios. They had received a report that the truck, while being pursued by Kansas City police officers, had travelled through Kansas City at speeds exceeding ninety miles per hour and had passed traffic on both shoulders of Interstate 70. The report also said that the truck had attempted to ram several police cars.

Troopers Rice and Martinez, in separate vehicles, entered Interstate 70 in front of the truck; Trooper Messick and Corporal Holt, also in separate cars, were following the truck. Rice, who was in the left lane, and Martinez, who was in the right lane, first attempted to execute a "rolling roadblock"; that is, they attempted to slow their vehicles gradually to force the truck to also slow down and eventually stop. This procedure failed, however. According to the troopers, whenever they slowed their vehicles, the truck would accelerate rather than slow down.

After the rolling roadblock had failed, Trooper Messick attempted to disable the truck by firing his shotgun into the trailer's wheels. Although Messick succeeded in flattening one trailer tire, the truck continued to speed along on its remaining tires. Messick was unable to fire any more shots at the trailer's tires because every time he attempted to pull alongside the trailer, Cole would observe Messick in the truck's side-view mirror and swerve towards Messick's patrol car.

Corporal Holt then ordered that a stationary roadblock be set up at the forty-four-mile marker of Interstate 70. Troopers Brown,

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Smith, and Rodenburg arranged their patrol cars in the passing lane of the interstate so as to funnel the truck into a single lane. This arrangement left an escape route for the truck in case Cole decided to run the roadblock--which he did. Although Cole could see the roadblock from one-half mile away, he did not slow down. As the truck sped past the roadblock, the troopers fired their shotguns at the tractor's tires and radiator. Although a tire on one of the tractor's two rear axles was blown out, the truck continued speeding down the highway.

Throughout the pursuit, Troopers Rice and Martinez remained in front of the truck, which continued to travel at speeds exceeding ninety miles per hour. Because the holiday traffic on the interstate remained congested, the troopers were constantly attempting to remove civilian traffic from the truck's pathway, sometimes by forcing motorists to drive off the roadway onto the shoulder and median by use of the red lights, sirens, and the maneuvering of the patrol cars. The two troopers used two methods to slow the truck and prevent it from hitting their vehicles and the vehicles of civilians. Rice was able to slow the truck temporarily when it approached traffic by placing his shotgun on the roof of his patrol car so that Cole could see it. Rice displayed his shotgun approximately twenty times in an attempt to prevent the truck from hitting motorists. Trooper Martinez slowed the truck and attempted to disable it by firing several shots at it. Rice stated that without these tactics the truck would have struck the officers' patrol cars as well as civilian vehicles. He stated further that, as it was, Cole forced more than one hundred cars off the road or out of the truck's way and endangered the lives of many other motorists during the pursuit.

After all these attempted means had failed, Rice decided to use deadly force based on Cole's demonstrated lack of concern for other travellers and for the officers themselves. At the fifty-mile marker, Rice observed that the road was momentarily clear of civilian traffic. He radioed the other officers that he was going to shoot at the truck. To get an unobstructed shot at the truck, he first shot out the rear window of his patrol car with his shotgun. He then fired two rounds from his revolver at the truck, attempting to disable its engine. The second shot hit David Cole in the forehead.

Todd Cole, who had been in the truck's sleeper compartment and thus hidden from the troopers' view, then brought the truck to a stop. David Cole was transported to a Kansas City hospital, where he died from the gunshot wound.

David Cole's wife and children brought this section 1983 action, alleging various violations of David Cole's constitutional rights. They also filed a pendent state law claim for wrongful death. They alleged that Troopers Bone, Brown, Martinez, Messick, Rice, Rodenburg, Smith, and Stewart; Corporals Beydler and Holt; and Sergeant Spire were liable for their roles in the pursuit. Additionally, plaintiffs alleged that Corporal Beydler, Corporal Holt, Sergeant Spire, Lieutenant Mills, Colonel Fisher, Colonel Ford, Major Christman, Captain Bierle, and Captain Corbin were liable as supervisors of the troopers involved in the pursuit. Plaintiffs sued all defendants individually and in their official capacities.

Following some discovery, defendants moved for summary judgment, asserting that they were entitled to qualified immunity. The district court denied the motion, and defendants subsequently filed this interlocutory appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985).


In reviewing a denial of summary judgment, we apply the same standard as that applied by the district court. See, e.g., Meester v. IASD Health Servs. Corp., 963 F.2d 194, 196 (8th Cir.1992). "A motion for summary judgment should be granted if, viewing the evidence in the light most favorable to the nonmoving party, 'there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law.' " Nelson v. City of McGehee, 876 F.2d 56, 57 (8th Cir.1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)); see also Fed.R.Civ.P. 56. Although a defendant

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who moves for summary judgment has the burden of showing that there is no genuine issue of fact for trial, "the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict." Liberty Lobby, 477 U.S. at 256, 106 S.Ct. at 2514. A plaintiff opposing a properly supported motion for summary judgment may not rest upon the mere allegations in his pleadings, "but must set forth specific facts showing that there is a genuine issue for trial." Id.

Government officials performing discretionary functions are shielded from liability for civil damages by qualified immunity as long as their "conduct does not violate clearly established [federal] 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). In other words, to decide whether an official is protected by qualified immunity, a court must determine whether the official's action was objectively legally reasonable in...

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