Roach v. City of Fredericktown, S87-0009C(5).

• Citation: 693 F. Supp. 795
• Decision Date: 26 August 1988
• Docket Number: No. S87-0009C(5).,S87-0009C(5).
• Parties: Randy ROACH, Plaintiff, v. The CITY OF FREDERICKTOWN and Officer Kenneth Rowland Truska, Defendants.
• Court: U.S. District Court — Eastern District of Missouri

693 F. Supp. 795

Randy ROACH, Plaintiff, v. The CITY OF FREDERICKTOWN and Officer Kenneth Rowland Truska, Defendants.

No. S87-0009C(5).

United States District Court, E.D. Missouri, Southeastern Division.

August 26, 1988.

James E. Hullverson, Jr., Hullverson, Hullverson & Frank, St. Louis, Mo., for plaintiff.

Eugene K. Buckley, Evans and Dixon, St. Louis, Mo., for defendants.

MEMORANDUM

LIMBAUGH, District Judge.

Keller v. Truska, et al., No. S 86-0152 C, and Roach v. City of Fredericktown, et al., No. S 87-0009 C, arose out of an automobile accident that occurred near Fredericktown, Missouri. These actions, brought pursuant to 42 U.S.C. § 1983, were previously set for trial in May 1988. Shortly before trial, defendants challenged the Court's jurisdiction, contending that the allegations of plaintiff's complaint, even if true, did not give rise to an action under § 1983. Both cases were reset for trial at a later date, and counsel were asked to brief the Court's jurisdiction under 42 U.S. C. § 1983.

Facts.

On the evening of July 4, 1986, Randy Roach was a passenger in a car being driven by James Adams through the City of Fredericktown, Missouri. The car Adams was driving came under the suspicion of Kenneth Truska, a police officer for the City of Fredericktown. Truska attempted to stop the Adams vehicle by activating his flashing lights. At that point, Adams began driving at speeds up to 90 miles per hour, and Truska pursued him at similar speeds.

The pursuit continued outside the city limits of Fredericktown to Mill Creek, where Adams lost control of his car and collided with a car being driven by Walter Keller. Keller's wife Audrey was a passenger in her husband's car. The car Truska was driving also hit the Keller vehicle. Adams died in the accident, and the Kellers and Roach were seriously injured.

The Kellers filed a four-count complaint against Truska, City Marshal Jerry Umfleet and the City of Fredericktown. Counts I and II, brought under 42 U.S.C. § 1983, allege excessive force, inadequate training and negligence. Counts III and IV are pendant state claims for negligence.

Roach named as defendants Truska and the City of Fredericktown. Counts I and II of the four-count complaint are against Truska for unreasonable search and seizure (Count I) and negligence (Count II). Counts III and IV against the City of Fredericktown allege policies of inadequate training (Count III) and vicarious liability (Count IV).

Legal Theories.

The briefs filed by the parties address three theories of liability: unreasonable seizure, negligence and inadequate training. A fourth theory, excessive force, is alleged in the Keller's complaint, but was not included in their jurisdictional brief. The Court will address that theory first.

A. Excessive Force.

Plaintiffs Walter and Audrey Keller allege in their complaint that "but for Defendant Truska's excessive force and speed in pursuing an alleged misdemeanant, the Plaintiffs ... would never have been involved in any accident." The Eighth Circuit Court of Appeals has held that the right to be free from the use of excessive force by police officers emanates from the due process clause. Herrera v. Valentine, 653 F.2d 1220, 1229 (8th Cir. 1981). The Court must look to the facts of a given situation to determine whether there has been a constitutional violation. "Not every assault or bodily harm caused by a police officer means that a constitutional claim may be asserted. In order to violate the due process clause, the conduct must be so egregious and reckless that it may be deemed a substantive denial of due process." Dale v. Janklow, 828 F.2d 481, 485 (8th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1486, 99 L.Ed.2d 714 (1988).

Here, despite plaintiffs' contention to the contrary, there was no excessive force being applied during the chase. There were no weapons used to subdue Adams. Rather, Truska was engaged in a high speed pursuit of someone he believed had committed a traffic violation. It might be argued that the force occurred when Truska's car ran into the Kellers' car after it had already collided with Adams. A three-car accident, however, does not amount to violation of someone's constitutional rights. There are no allegations that injury resulted because of the collision with Truska's car. The conduct of Truska in pursuing Adams was not of the "egregious or reckless" type that would amount to a constitutional violation for excessive force. See Tagstrom v. Pottebaum, 668 F.Supp. 1269, 1273 (N.D.Iowa 1987), appeal denied, Tagstrom v. Enockson, 845 F.2d 1027 (8th Cir.1988).

B. Unreasonable Seizure.

Plaintiffs next contend that the pursuit of Adams by Truska was an unreasonable seizure in violation of the fourth amendment. This theory has infrequently been considered, and the courts that have examined unreasonable seizure in the context of a high speed pursuit have reached different results. The sixth and ninth circuits have ruled that a high speed pursuit does not state a claim for unreasonable seizure under the fourth amendment. The fifth circuit has recognized a cause of action under § 1983.

The issue was first addressed by the sixth circuit in Galas v. McKee, 801 F.2d 200 (6th Cir.1986). In that case, a police officer was engaged in the high speed pursuit of a car that began speeding after the officer had attempted to stop the car by activating his lights and siren. The driver of the car, plaintiffs' thirteen year old son, was seriously injured when he lost control of his automobile and ran off the road.

Relying on Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), plaintiffs in Galas argued that the continuance of a high speed pursuit of a traffic offender until the pursuit is terminated by a crash of the offender's vehicle constitutes an unreasonable seizure in violation of the fourth amendment. In Garner, the Supreme Court held that the use of deadly force to apprehend an unarmed, fleeing felon was an unreasonable seizure that violated the fourth amendment.

The Galas court noted that a two-part test should be used to determine whether the fourth amendment had been violated. First, the court must determine whether there was a seizure. Second, if there was a seizure, the court must then decide whether it was an unreasonable method of seizing traffic offenders. Galas, 801 F.2d at 202. A seizure occurs when there is a restraint of liberty "accomplished by means of physical force or show of authority." Id. at 203. The court ruled that no seizure had taken place, although there was a restraint of liberty. "This restraint on plaintiff's freedom to leave, however, was not accomplished by the show of authority but occurred as a result of plaintiff's decision to disregard it." Id.

The court addressed the second prong of the test even though it had already determined that no seizure had taken place. Although the court recognized that "high-speed pursuits place the suspect, the officer and the public in general at risk of death or serious bodily injury" it ruled that the methods used to apprehend fleeing traffic offenders were not unreasonable.

We conclude that the minimal intrusion on a traffic offender's Fourth Amendment right occasioned by the officer's participation in a high-speed pursuit does not outweigh a longstanding police practice which we consider "essential to a coherent scheme of police powers."

Galas, 801 F.2d at 204.

The Ninth Circuit Court of Appeals relied on Galas in ruling that the fourth amendment had not been violated in Brower v. Inyo County, 817 F.2d 540 (9th Cir.1987), cert. granted, ___ U.S. ___, 108 S.Ct. 2869, 101 L.Ed.2d 904 (1988). There, the driver of the vehicle being pursued by a county sheriff's deputy died when his automobile collided with a tractor-trailer truck that was being used as a roadblock. As the court noted in Galas, the driver made a conscious decision to avoid official restraint. Therefore, no seizure took place. Id. at 546-47.

Galas and Brower both involve claims on behalf of the driver of the car being pursued by the police officer. In Jones v. Sherrill, 827 F.2d 1102 (6th Cir.1987), the court considered whether the same rule applies to an innocent driver of a third vehicle whose car is struck by the fleeing suspect. That is the same position the Kellers are in here.

The court relied on its decision a year earlier in Galas in holding that plaintiff did not have a fourth amendment claim. The court ruled that the pursuit did not constitute a seizure of plaintiff any more than it could of the fleeing suspect. "The restraint on the innocent bystander's liberty was caused by the accident with the fleeing suspect and not by any physical force or show of authority on the part of the officers. There was no fourth amendment violation." Jones, 827 F.2d at 1104-05.

The fifth circuit's ruling in Jamieson v. Shaw, 772 F.2d 1205 (5th Cir.), reh'g denied, 776 F.2d 1048 (1985), favors plaintiffs' position. In that case, the plaintiff appealed the dismissal of her § 1983 action by the district court. Plaintiff was a passenger who was injured when the car in which she was riding struck a roadblock that was set up by police to stop the fleeing vehicle. After dismissal of her complaint which alleged negligence and excessive force, plaintiff sought leave to amend her complaint to assert that her fourth amendment rights had been violated. The district court denied this request on the basis that the amendment would not state a claim under the fourth amendment.

The appellate court reviewed the sufficiency of plaintiff's proposed amended complaint to determine whether the district court had properly denied plaintiff's request. The court found that plaintiff's amended complaint stated a cause of action: "she was `seized' when the officers deliberately placed the roadblock in front of the car in which they knew she was a passenger." Jamieson, 772 F.2d at 1210.

Although the fifth circuit's holding in Jam...