Terrell v. Larson

• Decision Date: 04 February 2005
• Docket Number: No. 03-1293.,03-1293.
• Citation: 396 F.3d 975
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: James TERRELL, as Trustee for the heirs and next of kin of Talena Terrell, et al., Plaintiffs — Appellees, v. Brek Andrew LARSON; Shawn Aaron Longen, Defendants — Appellants.

396 F.3d 975

James TERRELL, as Trustee for the heirs and next of kin of Talena Terrell, et al., Plaintiffs — Appellees, v. Brek Andrew LARSON; Shawn Aaron Longen, Defendants — Appellants.

No. 03-1293.

United States Court of Appeals, Eighth Circuit.

Submitted: October 20, 2004.

Filed: February 4, 2005.

Rehearing and Rehearing En Banc Denied March 16, 2005.

As Corrected March 23, 2005.^*

James T. Martin, argued, Edina, MN (Julian C. Janes, on the brief), for appellant.

Mark D. Nyvold, argued (Paul Appelbaum, St. Paul, MN, on the brief), for appellee.

Before LOKEN, Chief Judge, LAY, HEANEY, WOLLMAN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, and BENTON, Circuit Judges, en banc.

LOKEN, Chief Judge.

In County of Sacramento v. Lewis, 523 U.S. 833, 836, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (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." We subsequently held "that the intent-to-harm standard of Lewis applies to all § 1983 substantive due process claims based upon the conduct of public officials engaged in a high-speed automobile chase aimed at apprehending a suspected offender," regardless of whether the chase conditions arguably afforded pursuing officers time to deliberate. Helseth v. Burch, 258 F.3d 867, 871 (8th Cir.2001) (en banc), cert. denied, 534 U.S. 1115, 122 S.Ct. 924, 151 L.Ed.2d 888 (2002), overruling Feist v. Simonson, 222 F.3d 455 (8th Cir.2000).

In this case, Deputy Sheriffs Brek Larson and Shawn Longen, responding to a domestic disturbance call, drove through a red light with their emergency lights and siren activated and collided with Talena Terrell's car in the intersection. Terrell died, and her heirs and next of kin brought this action under 42 U.S.C. § 1983, alleging that the deputies' reckless driving violated her right to substantive due process. The district court denied defendants' motion for summary judgment based on qualified immunity. Larson and Longen appealed. A divided panel of this court affirmed the denial of qualified immunity to Deputy Larson, limiting the holdings of Lewis and Helseth to "high speed police pursuits aimed at apprehending a suspected offender." Terrell v. Larson, 371 F.3d 418, 424 (8th Cir.2004). We granted en banc review, vacated the panel's decision, and now reverse as to both deputies.

At 10:05 p.m. on December 29, 2000, the Anoka County Sheriff Department's radio dispatcher transmitted the following call:

[____] Jewell St. [Complainant's] wife, twenty-three year old female, is at the location threatening to harm their three year old child. She's currently locked herself in the bedroom, no weapons. She was unaware that the complainant has called.

The call was assigned priority level three, described as "a very high priority."

Deputy Sheriffs Larson and Longen were on duty, working and eating dinner at a substation some ten miles from the reported disturbance. As the call was in their assigned patrol area, Larson radioed that they would provide back-up to the responding patrol car. One minute later, another deputy radioed that he was responding as back-up and that Larson and Longen could cancel. The dispatcher advised Larson, "you can cancel," Larson replied, "we'll continue," the dispatcher replied, "I covered you," and Larson repeated, "we'll continue." Moments later, the dispatcher radioed, "Copy to all for considering, 2038 [another patrol car] advising by phone that he's backing also." Deputies Larson and Longen embarked in their patrol vehicle for Jewell Street, with Larson driving. As they approached the intersection of Highway 65 and Crosstown Boulevard at very high speed, yellow flashing lights warned that the stoplight was about to turn red. Larson slowed to about 40 miles per hour, then sped up when he saw no cars in the intersection. The traffic light turned red, and the patrol vehicle broadsided Terrell's car in the intersection. At impact, the patrol vehicle was traveling 60-64 miles per hour.

In their Third Amended Complaint, Terrell's heirs and next of kin alleged that the deputies' decision to respond to the call and their operation of the vehicle "were conscience-shocking, and reckless, callous, outrageous and deliberately indifferent to the rights of Talena Terrell." Larson and Longen moved for summary judgment, arguing there is no evidence of intent to harm and therefore they are at least entitled to qualified immunity under Lewis and Helseth. Conceding they have no evidence of intent to harm, plaintiffs argued, and the district court agreed, that summary judgment was improper because whether defendants were responding to an emergency is a disputed issue of fact that will determine whether deliberate indifference, or intent to harm, is the applicable standard of fault.

1. Lewis teaches that the proper approach for resolving an asserted qualified immunity defense is "to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all," and then to "ask whether the right allegedly implicated was clearly established at the time of the events in question." 523 U.S. at 841 n. 5, 118 S.Ct. 1708. To establish a substantive due process violation, plaintiffs must show that "the behavior of the [deputies was] so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience." Lewis, 523 U.S. at 847 n. 8, 118 S.Ct. 1708.¹ Because a wide variety of official conduct may cause injury, a court must first determine the level of culpability the § 1983 plaintiff must prove to establish that the defendant's conduct may be conscience shocking. Mere negligence is never sufficient. Proof of intent to harm is usually required, but in some cases, proof of deliberate indifference, an intermediate level of culpability, will satisfy this substantive due process threshold. Lewis, 523 U.S. at 848-49, 118 S.Ct. 1708. The deliberate indifference standard "is sensibly employed only when actual deliberation is practical." Lewis, 523 U.S. at 851, 118 S.Ct. 1708; see Wilson v. Lawrence County, 260 F.3d 946, 957 (8th Cir.2001). By contrast, the intent-to-harm standard most clearly applies "in rapidly evolving, fluid, and dangerous situations which preclude the luxury of calm and reflective deliberation." Neal v. St. Louis County Bd. of Police Comm'rs, 217 F.3d 955, 958 (8th Cir.2000).

In determining the requisite level of culpability in this case, we reject the panel majority's conclusion that the controlling force of Lewis is limited to high-speed police driving aimed at apprehending a suspected offender. The Supreme Court's analysis of the culpability issue in Lewis was framed in far broader terms. See Dillon v. Brown County, 380 F.3d 360, 363-64 (8th Cir.2004). Likening the sudden, difficult decision whether to pursue a fleeing suspect to decisions that must be made in quelling a prison riot, the Court adopted the Eighth Amendment intent-to-harm standard of Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), explaining:

Like prison officials facing a riot, the police on an occasion calling for fast action have obligations that tend to tug against each other. Their duty is to restore and maintain lawful order, while not exacerbating disorder more than necessary to do their jobs. They are supposed to act decisively and to show restraint at the same moment, and their decisions have to be made in haste, under pressure, and frequently without the luxury of a second chance.... A police officer deciding whether to give chase must balance on one hand the need to stop a suspect and show that flight from the law is no way to freedom, and, on the other, the high-speed threat to all those within stopping range, be they suspects, their passenger, other drivers, or bystanders.

523 U.S. at 853, 118 S.Ct. 1708 (quotation omitted). Similarly, police officers deciding whether to respond to an emergency domestic disturbance call must make a quick decision how best to protect the public and maintain lawful order. Those responding must arrive at the scene quickly to quell violence, protect children, and assist anyone who is injured, so responding from afar will invariably require the same type of high-speed driving as the chase of a fleeing suspect. Domestic disturbances are "notoriously volatile and unpredictable," Elwood v. Rice County, 423 N.W.2d 671, 678 (Minn.1988), so the number of police officers needed to defuse the situation is rarely known in advance. Like the officer who made a quick decision to give chase in Lewis, police officers responding to this type of emergency call do not have "the luxury ... of having time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations." 523 U.S. at 853, 118 S.Ct. 1708.

Thus, the panel majority's decision flies in the face of the Lewis analysis and threatens to deter police officers from deciding to respond to emergency calls, thereby increasing the risk of harm to citizens caught up in these crises. See Helseth, 258 F.3d at 871. No doubt for this reason, to our knowledge every circuit to consider the issue has applied the Lewis intent-to-harm standard to "those myriad situations involving law enforcement and government workers deployed in emergency situations." Radecki v. Barela, 146 F.3d 1227, 1230 (10th Cir.1998) (unanticipated struggle for police officer's firearm); accord Carter v. Simpson, 328 F.3d 948, 952 (7th Cir.2003) (back-up squad car responding to emergency call of a reported death); Claybrook v. Birchwell, 199 F.3d 350, 359-61 (6th Cir.2000) (reacting to dangerous actions of an armed man); Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365, 372 (9th Cir.199...