Haugen v. Brosseau

• Decision Date: 04 August 2003
• Docket Number: No. 01-35954.,01-35954.
• Citation: 351 F.3d 372
• Parties: Kenneth J. HAUGEN, Plaintiff-Appellant, v. Rochelle BROSSEAU; Puyallup Police Department; The City of Puyallup, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

351 F.3d 372

Kenneth J. HAUGEN, Plaintiff-Appellant, v. Rochelle BROSSEAU; Puyallup Police Department; The City of Puyallup, Defendants-Appellees.

No. 01-35954.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2003 — Seattle, Washington.

Filed August 4, 2003.

Amended December 5, 2003.

Randy W. Loun, Loun & Tyner, Bremerton, Washington, for the plaintiff-appellant.

Mary Ann McConaughy, Keating Bucklin & McCormack, Seattle, Washington, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-01-05018-RJB.

Before STEPHEN REINHARDT, WILLIAM A. FLETCHER, and RONALD M. GOULD, Circuit Judges.

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge REINHARDT; Dissent by Judge GOULD

ORDER AMENDING OPINION AND DENYING REHEARING AND AMENDED OPINION

ORDER

This court's opinion, filed August 4, 2003, is amended as follows:

1. The fifth sentence in the full paragraph on slip op. 10604 that reads:

"Brosseau had not called Subido and Pashon to assist her, and there is no indication that they were running to give her aid." is deleted.

2. The second sentence in the first full paragraph on slip op. 10608 that now reads:

"But because officers can often eliminate or reduce the danger of a high-speed chase by forgoing or discontinuing a chase, we reject an approach that would allow officers to shoot a suspect simply because he is fleeing, or is about to flee, in a vehicle."

is replaced with the following two sentences:

"But the particular circumstances of each case are critical. We reject an approach that would allow officers to shoot a suspect simply because he is fleeing, or is about to flee, in a vehicle."

The dissent, filed August 4, 2003, is amended as follows:

The second and third sentences in the first full paragraph on slip op. 10619 that now read:

"Nor can I accept the majority's holding that — because police can reduce the danger of a high-speed chase by letting a felon escape — police may never use deadly force to protect the public from the danger posed by a felon's reckless flight from police in a vehicle. The majority's sweeping holding, which promises an easy escape to any felon willing to threaten innocent lives by driving recklessly, is indefensible as a matter of law and policy, and it conflicts with our sister circuits' holdings that police officers do not violate the Fourth Amendment by using deadly force to stop a fleeing felon who appears likely to drive an automobile with willful disregard for the lives of others.1"

are replaced with the following sentences:

"Nor can I accept the majority's implicit suggestion that — because police can reduce the danger of a high-speed chase by letting a felon escape — police may never use deadly force to protect the public from the danger posed by a felon's reckless flight from police in a vehicle. The majority's sweeping position, which promises an easy escape to any felon willing to threaten innocent lives by driving recklessly, is indefensible as a matter of law and policy, and it conflicts with our sister circuits' holdings that police officers do not violate the Fourth Amendment by using deadly force to stop a fleeing felon who appears likely to drive an automobile with willful disregard for the lives of others.1"

Footnote 1 remains in the edited text, as shown.

The first two sentences in the third full paragraph on slip op. 10627 that now read:

"Contrary to the holdings of every circuit to consider the issue, the majority holds that an officer violates a fleeing felon's Fourth Amendment rights by using deadly force to prevent a dangerous vehicular flight because `officers can often eliminate or reduce the danger of a high-speed chase by forgoing or discontinuing a chase.' Supra at 10608 [870].<sup>10</sup> The majority believes that police officers should permit felons to speed away unpursued rather than attempt to stop them. See id. at 10605 [869] (`[Officers] could either have discontinued a chase if it became too dangerous, or could have forgone a chase entirely.'); id. at 10607 [870] (`[A]n officer must sometimes forego or discontinue deadly force and allow a suspect to escape.')."

are replaced with the following sentences:

"Contrary to the holdings of every circuit to consider analogous issues, the majority holds that an officer violates a fleeing felon's Fourth Amendment rights by using deadly force to prevent a dangerous vehicular flight; it appears that the majority believes that officers can reduce the danger of a high-speed chase by forgoing it.¹⁰ The majority believes that police officers should permit felons to speed away unpursued rather than attempt to stop them. Supra at ___ (`[Officers] could either have discontinued a chase if it became too dangerous, or could have forgone a chase entirely.'); id. at ___ (`[A]n officer must sometimes forego or discontinue deadly force and allow a suspect to escape.')."

Footnote number 10 remains in the edited text, as shown.

The last sentence appearing on slip op. 10628 that currently reads:

Moreover, the majority errs by putting the onus on police to end the pursuit by letting the felon escape, rather than on the fleeing felon, who at all times has the power to avoid injury to himself and others by halting as the law requires. See id. at 1004 (holding that a police officer's pursuit of a fleeing felon in an automobile played a "causal role" in an ensuing wreck, "but not the kind of cause the law recognizes as culpable.... [A] criminal's effort to shift the blame [to police] ... is not one that any legal system can accept.").

is now supplemented to read:

Moreover, the majority errs by putting the onus on police to end the pursuit by letting the felon escape, rather than on the fleeing felon, who at all times has the power to avoid injury to himself and others by halting as the law requires. See id. at 1004 (holding that a police officer's pursuit of a fleeing felon in an automobile played a "causal role" in an ensuing wreck, "but not the kind of cause the law recognizes as culpable.... [A] criminal's effort to shift the blame [to police] ... is not one that any legal system can accept."). There are several problems with the majority's reasoning.

The first full paragraph on slip op. 10629 currently reads:

The majority attempts to justify its departure from precedent by reasoning that Officer Brosseau's fellow police officers might have decided to let Haugen escape in his jeep unpursued and that, for this reason alone, Officer Brosseau did not have probable cause to believe that Haugen's vehicular flight would pose a danger to others. There are several problems with the majority's reasoning.

This paragraph should be deleted in its entirety.

With the opinion and dissent as amended, Judge Reinhardt and Judge W. Fletcher voted to deny the petition for rehearing and petition for rehearing en banc.

Judge Gould voted to grant both petition for rehearing and petition for rehearing en banc.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en banc rehearing. Fed.R.App.P. 35(f).

The petition for rehearing and the petition for rehearing en banc, filed August 15, 2003, are DENIED.

TALLMAN, Circuit Judge, with whom Circuit Judges KOZINSKI, O'SCANNLAIN, GOULD, BYBEE, and CALLAHAN join, dissenting from our court's denial of rehearing en banc:

By declining to rehear this case en banc, the court has failed to recognize the immunity that law enforcement officers rightfully deserve to protect them when they make reasonable split-second life and death decisions in the field. In doing so, the court does a grave injustice to police officers in our circuit like Officer Rochelle Brosseau, who has been wrongfully denied qualified immunity from suit after she employed escalating force to stop a combative and determined fleeing felon. I respectfully dissent from the order denying rehearing en banc.

The panel majority fails to properly assess Officer Brosseau's actions when she sought qualified immunity from Haugen's 42 U.S.C. § 1983 action. In an excessive force case, we must examine whether an officer's actions are objectively reasonable in light of what she faces in the field. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Our own recent case law instructs that the relevant facts and circumstances are those known to the officer at the time she acts, based on her contemporaneous knowledge of the facts. Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir.2001). By contrast, the panel majority's opinion displays no sensitivity whatsoever to the difficulties police officers face when making life and death decisions in tense situations, as the Supreme Court tells us we must. Graham, 490 U.S. at 396-97, 109 S.Ct. 1865.

Here, Officer Brosseau's contemporaneous knowledge of the facts would lead a reasonable officer to believe that Haugen, based on his desperate behavior, was dangerous to others. Officer Brosseau had been called to the neighborhood just the day before to take a report that Haugen had stolen tools belonging to one Tamburello, his former business associate. After taking this report, Officer Brosseau was informed by a dispatcher that Haugen had a felony no-bail warrant outstanding for drug-related offenses and other charges.

The next day, Brosseau was dispatched to Haugen's house to stop a fight in progress between Haugen and Tamburello. In the course of attempting to take Haugen into custody, Brosseau was confronted with a known felon intent on escaping capture. Haugen actively evaded arrest by hiding in the bushes in a neighbor's yard; he ran to get into his car to drive away; he defied Officer Brosseau's verbal orders to stop; he resisted her attempts to detain him when she employed lesser degrees of force by...