Helseth v. Burch

• Decision Date: 11 January 2001
• Docket Number: No. 00-3235,00-3235
• Citation: 258 F.3d 867
• Parties: (8th Cir. 2001) Timothy Helseth, Plaintiff - Appellee, v. John Burch, in his individual capacity, Defendant - Appellant, Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 867

258 F.3d 867 (8th Cir. 2001)

Timothy Helseth, Plaintiff - Appellee, v. John Burch, in his individual capacity, Defendant - Appellant,

No. 00-3235

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: January 11, 2001

Filed: July 31, 2001

Appeal from the United States District Court for the District of Minnesota.

Before WOLLMAN, Chief Judge, McMILLIAN, RICHARD S. ARNOLD, BOWMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD, MURPHY, and BYE, Circuit Judges.

LOKEN, Circuit Judge.

In County of Sacramento v. Lewis, 523 U.S. 833, 835 (1998), the Supreme Court held that "in a high-speed automobile chase aimed at apprehending a suspected offender . . . only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a [substantive] due process violation." In Feist v. Simonson, 222 F.3d 455, 464 (8th Cir. 2000), which involved a high-speed pursuit of a stolen car, a panel of this court declined to apply the intent-to-harm standard of Lewis because the police officer "had ample time to deliberate" during the six-minute chase. In this case, an intoxicated driver seriously injured Timothy Helseth while being pursued at high speed by police officer John Burch. Relying on Feist, the district court denied Burch qualified immunity from Helseth's substantive due process claim under 42 U.S.C. § 1983. Helseth v. Burch, 109 F. Supp. 2d 1066, 1078 (D. Minn. 2000). Burch appealed, and we granted his petition for initial en banc review.¹ We overrule Feist and reverse.

I. Background.

Shortly after midnight on August 22, 1995, an intoxicated Everett Contois raced his car on a straight stretch of road in Blaine, Minnesota, a Twin Cities suburb. Contois's car was traveling 111 mph when it passed Blaine police officer William Bott in his squad car. Bott began pursuit, activating his lights and siren and notifying the police dispatcher of the chase. After Contois had successfully evaded Bott for several miles, running stop signs and stoplights at speeds of 60 to 80 mph, he raced passed Burch, who joined the chase as the lead squad car.

With Burch in close pursuit, Contois drove through four stop signs, stopped briefly in a dead-end cul-de-sac, and then drove through two lawns and over a small retaining wall to another street. As Contois slowed to make a right turn, Burch attempted to stop the Contois vehicle with three Pursuit Intervention Tactics ("PIT") maneuvers, in which the officer drives alongside the rear of the fleeing vehicle, turns, and hits the vehicle's rear end, causing it to spin and stop. The third PIT spun Contois's vehicle into a grassy median, but Contois quickly sped off, heading in the wrong direction on Highway 10, a heavily traveled thoroughfare. Another PIT maneuver again spun Contois into the median, but he re-entered Highway 10 (now heading in the right direction) and accelerated to speeds of 80 to 100 mph. Contois turned onto Highway 65 and then 81st Avenue, entering the neighboring suburb of Spring Lake Park, where another police car joined the pursuit. Just over six minutes after Burch entered the chase, Contois ran a red light and collided with a pickup truck driven by Helseth. The crash killed Helseth's passenger, seriously injured three juvenile passengers in Contois's car, and left Helseth a quadriplegic. Contois was tried and convicted of third degree murder and other offenses in state court.

Helseth filed this § 1983 damage action against Burch, alleging numerous constitutional violations arising from Burch's high-speed pursuit of Contois's vehicle. After substantial discovery, Burch moved for summary judgment. The district court dismissed all but Helseth's substantive due process claim. As to that claim, applying Feist, the court denied Burch qualified immunity because the evidence could support a finding that Burch conducted the pursuit with deliberate indifference to public safety and Helseth's rights. Alternatively, applying Lewis, the court denied Burch qualified immunity because the evidence could support a finding that Burch intended to harm Contois and his passengers by engaging in the PIT maneuvers. Burch appeals the denial of qualified immunity. As Lewis makes clear, in considering the qualified immunity defense, we must "determine first whether the plaintiff has alleged a deprivation of a constitutional right at all." 523 U.S. at 841 n.5. That is an issue we review de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994).

II. The Proper Culpability Standard.

Lewis reaffirmed that the substantive component of the Due Process Clause protects a private citizen against an abuse of power by an executive official that "shocks the conscience." Lewis involved a § 1983 damage claim by a motorcycle passenger injured at the end of a deputy sheriff's high-speed chase. The Ninth Circuit reversed the grant of summary judgment to the deputy, concluding that "the appropriate degree of fault to be applied to high-speed police pursuits is deliberate indifference to, or reckless disregard for, a person's right to life and personal security." Lewis v. Sacramento County, 98 F.3d 434, 441 (9th Cir. 1996). The Supreme Court reversed. The Court explained that the task was to determine the level of culpability which in this context "is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." 523 U.S. at 848 n.8 & 849. For high-speed police pursuits, the Court rejected the deliberate indifference standard, which it characterized as a "midlevel" fault standard. Analogizing such pursuits to prison riots, the Court concluded that "only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation." 523 U.S. at 836.

Feist involved a high-speed police chase that ended when the stolen car being pursued hit Feist's vehicle head-on at 100 mph. Eschewing the intent-to-harm standard of Lewis, our panel affirmed the denial of qualified immunity to the pursuing police officer, concluding that the deliberate indifference standard applies to a high-speed pursuit case if the pursuing police officer "had ample time to deliberate . . . [and] made a deliberative decision to continue the chase and to be indifferent to the dangers obviously inherent in his conduct." 222 F.3d at 464. In this case, the district court concluded that the deliberate indifference standard should apply because Burch, like the police officer in Feist, "engaged in conscious deliberation rather than reflexive conduct." Helseth, 109 F. Supp. 2d at 1076.

Our principal problem with the decision in Feist is that the panel paid too little heed to the Supreme Court's holding in Lewis, instead relying primarily on a portion of the Court's justification for that holding. The Court in Lewis was careful to state its holding in the first paragraph of the opinion -- "in a high-speed automobile chase aimed at apprehending a suspected offender . . . only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a [substantive] due process violation." 523 U.S. at 836. The Court restated its categorical rule toward the end of its opinion -- "we hold that high-speed chases with no intent to harm suspects physically or to worsen their legal plight do not give rise to liability under the Fourteenth Amendment, redressible by an action under § 1983." Id. at 854. For the lower federal courts, an explicit Supreme Court holding is like a statute in that its plain language must be obeyed. Accord Kinstler v. First Reliance Std. Life Ins. Co., 181 F.3d 243, 250-51 (2d Cir. 1999). Lewis plainly stated that the intent-to-harm standard, rather than the deliberate indifference standard, applies to all high-speed police pursuits aimed at apprehending suspected offenders.²

To be sure, the Court in Lewis explained that the deliberate indifference standard is appropriate "only when actual deliberation is practical." 523 U.S. at 851. The panel in Feist saw this language as an invitation to reject intent-to-harm as the governing standard whenever a judge or a jury could say, with the wisdom of hindsight, that an officer engaged in a high-speed pursuit had "ample time to deliberate." But this reasoning not only produces a standard that eviscerates the holding of Lewis, it also gives too little recognition to the Court's other bases for that holding -- its historical reluctance "to expand the concept of substantive due process," 523 U.S. at 842; its explicit reliance on Whitley v. Albers, 475 U.S. 312, 320 (1986), which adopted the intent-to-harm standard for a two-hour prison riot, 523 U.S. at 853-54; its doubt whether "it makes sense to speak of indifference as deliberate in the case sudden pursuit," 523 U.S. at 851; its recognition that police officers confronting high-speed lawlessness are "subject to countervailing [law] enforcement considerations," 523 U.S. at 855; its concern that any standard less than intent-to-harm "might cause suspects to flee more often, increasing accidents of the kind which occurred here," 523 U.S. at 858 (Kennedy, J., concurring); and the belief of at least some Justices that the question of police officer liability for reckless driving during high-speed pursuits should be decided by the elected branches of government, 523 U.S. at 864-65 (Scalia, J., concurring).³

Since Lewis, all other circuits that have examined the issue have applied the intent-to-harm standard in high-speed police pursuits cases, without regard to the potentially limiting factors identified by the panel in Feist -- the length of the pursuit, the officer's training and experience, the severity of the suspect's misconduct, or the perceived danger to the public in continuing the pursuit. See Trigalet v. City of Tulsa, ...