Rowe v. City of Marlow ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 26 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLES A. ROWE, Personal
Representative of the Estate of Alysia
Dawn Rowe, deceased,
Plaintiff - Appellant, No. 96-6144
v. (D.C. No. CIV-95-425-A)
CITY OF MARLOW, OKLAHOMA, a (W.D. Oklahoma)
municipal corporation; CITY OF
WAURIKA, a municipal corporation;
CITY OF COMANCHE; LAYLE
BAKER; KELVIN HALL; DALE
SEARIGHT; SANTOS CASTILLO,
Defendants - Appellees.
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CHARLES A. ROWE, Personal
Representative of the Estate of Alysia
Dawn Rowe, deceased,
Plaintiff - Appellant, No. 96-6229
v. (D.C. No. 96-CV-39)
CITY OF MARLOW, OKLAHOMA, a (W.D. Oklahoma)
municipal corporation; JACK
BRACKETT, individually and in his
official capacity as Chief of Police for the
City of Marlow, Oklahoma; LEROY
WALKER, Marlow Police Lieutenant,
individually and in his official capacity,
Defendants - Appellees.
ORDER AND JUDGMENT*
Before ANDERSON, BALDOCK, and EBEL, Circuit Judges.
In these companioned 42 U.S.C. § 1983 appeals, plaintiff Charles A. Rowe appeals
from the grant of summary judgment in favor of defendants and appellees, the cities of
Marlow, Duncan, Ryan, Waurika, and Comanche, Oklahoma, Marlow Chief of Police
Jack Brackett, in his individual and official capacity, Marlow police Lieutenant Leroy
Walker, in his individual and official capacities, and police officers Layle Baker, Kelvin
Hall, Dale Searight and Santos Castillo.1 Mr. Rowe, as personal representative of the
estate of his thirteen-year-old daughter, Alysia Dawn Rowe, sought damages for alleged
constitutional violations suffered by Alysia in the course of a high-speed police chase of
his family van, driven by Alysia, which ended when Alysia crashed at a dangerous
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of Tenth Cir. R. 36.3.
1
Appeal No. 96-6144 involves the five municipal defendants, as well as Layle
Baker, Kelvin Hall, Dale Searight, and Santos Castillo. Appeal No. 96-6229 involves the
City of Marlow, Police Chief Jack Brackett, and Lieutenant Leroy Walker. Mr. Rowe
subsequently settled his claims against the cities of Duncan and Comanche, and orders of
dismissal were entered. Any claim against Officer Searight, as an officer for the city of
Comanche, was apparently also dismissed, although the briefs do not make clear exactly
how. See Appellant’s App. (No. 96-6144) Vol. 2 at 493. In any event, Mr. Rowe makes
no argument concerning Officer Searight’s liability in these appeals.
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intersection and died. He also sought relief on a supplemental state law negligence claim.
We affirm.2
BACKGROUND
The undisputed material facts are as follows: At approximately 10:15 p.m. on
July 3, 1994, Alysia Rowe took her family’s van without permission and drove away from
the Rowe residence in McCloud, Oklahoma. Her mother reported this fact to the
Pottawatomie County Sheriff’s Department at 10:28. Alysia called her grandmother at
1:33 a.m. on July 4, and received directions to her aunt’s house in Marlow. At
approximately 1:44 a.m., Marlow police officer Baker saw the van traveling south on
U.S. 81 at approximately 84 miles per hour in a 40 miles per hour zone. Officer Baker
began to pursue the van with his siren and emergency lights on. After briefly slowing
down, the van sped up again. Officer Hall joined the pursuit as a back-up to Officer
Baker.
The pursuit continued into Duncan, Oklahoma, with Officer Baker traveling
between 95 and 100 miles per hour behind the Rowe van.3 Officers Baker and Hall
On our own motion, we previously abated this case, pending an en banc decision
2
in Williams v. City and County of Denver, 99 F.3d 1009 (10th Cir. 1996), vacated and
reh’g en banc granted, No. 94-1190 (10th Cir. March 3, 1997). For the reasons stated in
this opinion, we hereby reinstate this case on our own motion.
A videotape of the pursuit, which is a part of the record, reveals that Officer
3
Baker maintained what appeared to be a three-to-five car length distance behind the van
(continued...)
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learned at 1:55 a.m. that the van belonged to Charles Rowe of McCloud, Oklahoma, and
that it had not been reported stolen. At approximately 2:00 a.m., Officer Baker learned
that “possibly” a thirteen-year-old was in the van. Appellant’s App. (No. 96-6144) Vol. 1
at 199. He testified, however, that “it appeared that there was an adult driving.” Id. at
194. He also testified that he “felt [he] had a kidnaping in progress,” based upon the
information he had received. Id. Vol. 2 at 385.
Duncan police Lieutenant Phil Savage observed the van pass his location, and he
activated his overhead lights. The pursuit continued southbound on U.S. 81 towards the
city of Comanche. Comanche police officers Rondell Serratte and Jeff Arnold positioned
their vans on the east side of the northbound lane of U.S. 81. Officer Serratte had
activated his overhead lights. The Rowe van continued at high speed past those officers,
southbound on U.S. 81, towards the city of Waurika. Officer Serratte terminated his
involvement in the pursuit at the south edge of Ryan. Officer Arnold lost visual contact
with the pursuit, and finally turned around at the Texas/Oklahoma line.
Waurika police officer Theron Brown, who had been notified of the pursuit,
positioned his police car, with siren and lights activated, on U.S. 81, half on the shoulder
and half in the southbound lane, just north of the city of Waurika. The van and the
(...continued)
3
throughout much of the pursuit. His police car at times dropped further back from the
van.
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pursuing police cars passed by Officer Brown’s vehicle. Officer Brown dropped out of
the pursuit at the Texas/Oklahoma state line.
Ryan police officer Santos Castillo, who had learned of the pursuit on his police
radio, activated his lights and siren, and began to drive southbound on U.S. 81 at
approximately 50 miles per hour, towards the city of Ryan. As the Rowe van approached
his police car from behind, and did not appear to slow down, Officer Castillo moved over
to the shoulder, and the Rowe van passed by, followed by two police cars.
The Rowe van then crossed the state line into Texas. After learning of the pursuit,
Montague County Deputy Scott Hardison began traveling south on U.S. 81, just north of
the city of Stoneburg, Texas, with his lights and siren activated. As the Rowe van
approached him at a high rate of speed, he took evasive action to avoid being struck from
behind. He testified that he was traveling between 80 and 90 miles per hour. Montague
County Sergeant Rod Smith similarly took evasive action to avoid colliding with the van
as it passed him traveling south on U.S. 81 towards Bowie, Texas. Sergeant Smith
testified that he was “absolutely sure” that the Rowe van attempted to ram his police car.
Id. Vol. 1 at 268.
As the Rowe van approached Bowie, Bowie police officers Katrina Jones and
Chris Wolfe positioned their police cars to block off the road into which U.S. 81 ended in
a “T” intersection. They did this to prevent any cars from entering the intersection from
the west or east. A warning sign, two large stop signs, and two sets of alternating red
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lights alerted drivers traveling south on U.S. 81 that the road ended in a “T” intersection.
Officer Baker testified that he and Officer Hall had been warned of the approaching
intersection and began to slow down “approximately a mile away” from the intersection.
Id. at 201-02. Officer Hall testified that he slowed down as the Rowe van approached the
“T” intersection “[s]o the person driving the van wouldn’t feel like they were being
pushed into something.” Id. Vol. 2 at 424. Officer Baker’s statement indicates that, as
the Rowe van approached the intersection, he “backed off hard to allow a safety zone of
eight (8) to ten (10) blocks giving the suspect vehicle options of stopping or slowing
down.” Id. at 433. The district court found that the “uncontroverted Rule 56(c) evidence
. . . [shows that] the officers stopped their pursuit approximately 10 blocks before the T-
intersection, to allow Alysia to stop.” Id. at 487 (Order).4
The Rowe van entered the “T” intersection at approximately 87 miles per hour,
and crashed into a car dealership on the south side of the intersection. Alysia was ejected
from the van and killed. The pursuing officers said they did not see any brake lights
activated, nor did the accident report prepared by a Texas Highway Patrol trooper indicate
that skid marks were present. Officers Castillo, Hardison and Smith testified that they
and the other officers at the crash site looked for another victim, as they assumed that
Alysia was not alone in the car. Id. Vol. 1 at 247, 262.
4
The videotape ends before the pursuit ends, but it does show that the pursuing
police vehicles had dropped back somewhat towards the end of the chase.
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Alysia’s father brought one of these § 1983 actions (No. 96-6144 on appeal)
against certain of the defendants, alleging that Officers Baker, Hall and Castillo seized
Alysia, in violation of the Fourth Amendment, or, if no seizure occurred, they violated her
Fourteenth Amendment substantive due process rights by “depriving her of her life with
deliberate, reckless intent.” Appellant’s Br. (No. 96-6144) at 14. He also sought
damages from the municipalities of Marlow and Ryan for failure to train, failure to
supervise and failure to promulgate adequate high-speed police pursuit policies, and he
sought “damages under the doctrine of respondeat superior from Marlow, Ryan and
Waurika for the negligence of officers Baker, Hall, Castillo and [Brown].” Id. at 4.5 In a
separate, and subsequent action (No. 96-6229 on appeal), he sought damages from
Lieutenant Walker and Police Chief Brackett, in their individual capacities, based upon
their status as supervisors who “set in motion a series of acts by others, which they knew
or reasonably should have known, would cause others to inflict constitutional injury.”
5
This argument, if premised on § 1983, clearly fails. The Supreme Court has
repeatedly and unequivocally stated that “a municipality cannot be held liable solely
because it employs a tortfeasor -- or, in other words, a municipality cannot be held liable
under § 1983 on a respondeat superior theory.” Monell v. Dep’t of Social Servs., 436
U.S. 658, 691 (1978); see also Bryan County v. Brown, 117 S. Ct. 1382, 1388 (1997);
Wilson v. Meeks, 98 F.3d 1247, 1255 (10th Cir. 1996) (noting that the Supreme Court has
“explicitly rejected municipal liability based on either a respondeat superior or vicarious
liability theory.”). As a claim of respondeat superior liability under state law, the district
court correctly held that Mr. Rowe would have to establish that the officers were
negligent and that their negligence proximately caused Alysia’s death, which it held Mr.
Rowe failed to do.
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Appellant’s Br. (No. 96-6229) at 3.6 He also sought damages from the City of Marlow
“because Walker and Brackett are liable under § 1983, in their official capacities, as
official municipal policy makers for failure to train, failure to supervise, and failure to
promulgate adequate high speed pursuit policies.” Id.
The district court entered summary judgment in appeal No. 96-6144 against Mr.
Rowe on all of his § 1983 and supplemental state claims, concluding that: (1) Officers
Baker, Hall, and Castillo did not seize Alysia under the Fourth Amendment; (2) Officers
Baker, Hall, and Castillo did not violate Alysia’s substantive due process rights under the
Fourteenth Amendment; (3) Officers Baker, Hall, and Castillo are entitled to qualified
immunity; (4) the municipalities of Marlow and Ryan are not liable; and (5) the conduct
of Alysia Rowe was the proximate cause of her death, and the defendants were therefore
not liable in negligence under Oklahoma law. The court subsequently held, in appeal No.
96-6229, that Mr. Rowe’s claims against Lieutenant Walker and Chief Brackett in their
individual and official capacities, and the claim against the City of Marlow, necessarily
fail because it had previously held (in No. 96-6144) that officers Baker and Hall did not
violate Alysia’s Fourth or Fourteenth Amendment rights.
Lieutenant Walker was the senior officer on duty at the time of the pursuit, and
6
was therefore the supervisor of officers Hall and Baker.
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DISCUSSION
We review de novo the grant of summary judgment, applying the same legal
standard as did the district court. Carl v. City of Overland Park, 65 F.3d 866, 868 (10th
Cir. 1995). Summary judgment is appropriately granted if, viewing the record in the light
most favorable to the non-moving party (Mr. Rowe), there is no genuine issue of material
fact and the defendants are entitled to judgment as a matter of law. Id.I. Fourth Amendment
Mr. Rowe claims that Officers Baker, Hall and Castillo “seized” Alysia, in
violation of the Fourth Amendment, by pursuing her into the “T” intersection where she
crashed. We disagree.
In Brower v. County of Inyo, 489 U.S. 593 (1989), the Supreme Court held that the
police seized a suspect they had pursued at high speed when the suspect crashed into a
roadblock deliberately set up by the police to stop the suspect. The Court stated that a
Fourth Amendment seizure only occurs “when there is a governmental termination of
freedom of movement through means intentionally applied.” Id. at 597. Because the
roadblock in Brower was “not just a significant show of authority to induce a voluntary
stop, but [was] designed to produce a stop by physical impact if voluntary compliance
[did] not occur,” id. at 598, the suspect was seized when he collided with it.
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The Court distinguished such a seizure from a hypothetical situation identical to
this case: there is “no seizure” when there is “a police chase in which the suspect
unexpectedly loses control of his car and crashes.” Id. at 595; see also Galas v. McKee,
801 F.2d 200 (6th Cir. 1986) (finding no Fourth Amendment violation when police
pursued at high speed a thirteen-year-old driving his parents’ car without permission, and
he lost control, crashed, and was seriously injured). That is so because “[t]he pursuing
police car sought to stop the suspect only by the show of authority represented by flashing
lights and continuing pursuit; and though he was in fact stopped, he was stopped by a
different means -- his loss of control of his vehicle and the subsequent crash.” Brower,
489 U.S. at 597; see also Bella v. Chamberlain, 24 F.3d 1251, 1256 (10th Cir. 1994)
(holding that shots fired at plaintiff did not constitute a seizure because they “constituted
an assertion of authority, but they did not cause [the plaintiff] to submit nor did they
otherwise succeed in stopping him”) (footnotes omitted); Rosado v. Deters, 5 F.3d 119,
123 (5th Cir. 1993) (holding that officer’s “pursuit alone cannot constitute a seizure”).
In this case, the officers’ assertion of authority (their pursuit of Alysia with lights
and sirens activated, their placement of their police cars in various ways to attempt to
slow her down or stop her) did not cause her to submit or stop. Rather, she stopped only
when she entered the “T” intersection at a high rate of speed, despite warnings that she
needed to stop, lost control of the van and crashed. In sum, her freedom of movement
was not stopped by “means intentionally applied.” Brower, 489 U.S. at 597. It was
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stopped when she lost control of her car at a dangerous intersection. See Galas, 801 F.2d
at 202-04.
Moreover, the uncontroverted facts of this case do not support Mr. Rowe’s
argument that the officers, in essence, forced Alysia into the “T” intersection and caused
her to lose control and crash, much as the officers in Brower forced the suspect into the
roadblock. The roadblock in Brower allegedly was placed across both lanes of the road,
around a curve, was unilluminated, and included a police car placed in front of the
roadblock with its lights on, effectively blinding the suspect. The Court held those facts
sufficiently alleged a seizure under the Fourth Amendment. That is a vastly different
situation from the one here--Alysia drove at high speed some 76 miles along a rural
highway, past numerous roadblocks and police cars, and past numerous places where she
could have safely slowed down and stopped the van. Significantly, as the district court
found, the pursuing officers slowed down, and backed off their pursuit, as she approached
the intersection, for the very purpose of preventing her from being “forced” into the
intersection. We therefore affirm the district court’s conclusion that no Fourth
Amendment violation occurred.
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II. Fourteenth Amendment
Mr. Rowe also argues that, even if there was no Fourth Amendment violation,
Officers Baker, Hall and Castillo violated Alysia’s Fourteenth Amendment substantive
due process rights “by depriving her of her life with deliberate, reckless intent.”
Appellant’s Br. (No. 96-6144) at 14. We have held in this circuit that “a government
official violates an individual’s Fourteenth Amendment rights by injuring his or her life,
liberty, or property interest with deliberate or reckless intent.” Webber v. Mefford, 43
F.3d 1340, 1343 (10th Cir. 1994); see also Medina v. City and County of Denver, 960
F.2d 1493, 1496 (10th Cir. 1992). Further, “[a]n act is reckless when it reflects a wanton
or obdurate disregard or complete indifference to risk, for example ‘when the actor does
not care whether the other person lives or dies, despite knowing that there is a significant
risk of death’ or grievous bodily injury.” Id. at 1496 (quoting Archie v. City of Racine,
847 F.2d 1211, 1219 (7th Cir. 1988) (en banc)).7
7
We issued an opinion in Williams v. City and County of Denver, 99 F.3d 1009(10th Cir. 1996), vacated and reh’g en banc granted, No. 94-1190 (10th Cir. March 3,
1997), in which we held that, under Collins v. City of Harker Heights, 503 U.S. 115(1992), “a substantive due process violation requires (1) that the defendant act with
reckless intent, and (2) that the defendant’s conduct shock the conscience.” Williams, 99
F.3d at 1015. We have subsequently vacated our opinion in Williams. The Supreme
Court has granted certiorari in a case in order to address the legal standard of conduct
necessary to establish a substantive due process violation in a police pursuit case. Lewis
v. Sacramento County, 98 F.3d 434 (9th Cir.), cert. granted, 65 U.S.L.W. 3793, 3798
(U.S. June 2, 1997) (No. 96-1337). One of the questions which has divided circuit courts,
and which has been presented to the Supreme Court in Lewis, is whether an officer’s
conduct must “shock the conscience” or display “deliberate indifference” or “reckless
(continued...)
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We affirm the district court’s conclusion that the uncontroverted facts in this case
establish that the officers did not violate Alysia’s Fourteenth Amendment rights, by
depriving her of life “with deliberate or reckless intent,” Webber, 43 F.3d at 1343, when
they pursued her van, and she ultimately, and tragically, crashed and was killed. When
the officers first observed Alysia, she was already speeding, some 44 miles per hour over
the speed limit. They began pursuing her with lights and sirens activated. She continued
to drive at excessive speeds, through towns and cities, past other police cars with their
lights and sirens activated, past roadblocks which were intended to stop her without
causing her harm. Officer Baker testified that, by the time the Rowe van had neared the
“T” intersection, it had “[run] four roadblocks,” Appellant’s App. (No. 96-6144) Vol. 2 at
401, and several officers believed she deliberately attempted to ram their vehicles. The
officers were uncertain whether she was alone in the van or a willing, or unwilling,
passenger. In sum, her actions clearly gave the officers reason to believe that she was a
hazard to others on the road, as well as to them. Mr. Rowe has presented no evidence that
they pursued the van with “wanton or obdurate disregard or complete indifference” to
Alysia’s safety; rather, the evidence amply supports the view that they attempted to stop
an evident hazard to public safety. See Jones v. Sherrill, 827 F.2d 1102, 1107 (6th Cir.
7
(...continued)
disregard.” As of now, this circuit follows the “deliberate or reckless intent” standard.
Were we to apply a “shock the conscience” standard to this case, or any of the other
proposed standards, we would still affirm the grant of summary judgment to defendants.
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1987) (observing that “had the officers not pursued [the suspect] and had his unimpeded
progress resulted in a fatal accident, as it well could have, the officers might be facing a
different section 1983 claim based on their failure to act”). Summary judgment was
properly granted to defendants on Mr. Rowe’s Fourteenth Amendment claims.
Because we hold that the pursuing officers did not violate Alysia’s constitutional
rights, we need not address whether they were entitled to qualified immunity. Mr. Rowe
also attempts to hold Police Chief Brackett and Lieutenant Walker liable individually for
“set[ting] in motion a series of acts by others, which they knew or reasonably should have
known, would cause others to inflict constitutional injury.” Appellant’s Br. (No.
96-6229) at 3. Because we have held that the pursuing officers inflicted no constitutional
injury, Chief Brackett and Lieutenant Walker are not individually liable either.
III. Municipal Liability
The district court held that the claims against the municipalities and against the
supervisory officers, Chief Brackett and Lieutenant Walker, in their official capacities,
necessarily fail because the court had concluded that no individual officer violated
Alysia’s constitutional rights. Mr. Rowe argues that the claims against the municipalities
should only be dismissed if their claimed liability was derivative of the individual
officers’ liability. Where, as here, the plaintiff claims both derivative and direct liability,
Mr. Rowe argues a municipality may be directly liable. He argues that the municipalities,
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and Chief Brackett and Lieutenant Walker, failed to develop an adequate pursuit policy,
failed to train officers in pursuit procedures, and failed to supervise those officers, in
general and, in particular, in the pursuit of Alysia.
In City of Los Angeles v. Heller, 475 U.S. 796 (1986) (per curiam), the Supreme
Court held that a jury verdict acquitting a police officer of using excessive force in
making an arrest precluded a finding of municipal liability. “If a person has suffered no
constitutional injury at the hands of the individual police officer, the fact that the
departmental regulations might have authorized the use of constitutionally excessive force
is quite beside the point.” Id. at 794; see also Hinton v. City of Elwood, 997 F.2d 774,
782 (10th Cir. 1993). We have relied on both Heller and Hinton to hold that “[a] claim of
inadequate training, supervision, and policies under § 1983 cannot be made out against a
supervisory authority absent a finding of a constitutional violation by the person
supervised.” Webber, 43 F.3d at 1344-45; see also Wilson v. Meeks, 98 F.3d 1247, 1255
(10th Cir. 1996) (“The district court correctly concluded no municipal liability could be
found in this case because there was no constitutional violation committed by any of the
individual defendants.”). The Supreme Court’s recent decision in Bryan County v.
Brown, 117 S. Ct. 1382 (1997) confirms that municipal liability for failure to train or
supervise requires a finding that the muncipality’s deliberate indifference “led an
employee to violate a plaintiff’s rights” or “failed to prevent tortious conduct by
employees.” Id. at 1390.
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Without deciding the issue here, to the extent some other claim of direct municipal
liability could be made, even in the absence of a finding that the employee violated the
plaintiff’s constitutional rights, as a panel of this court recently held in Williams, which
was subsequently vacated, no such claim prevails in this case.
We therefore affirm the district court’s conclusion that the municipalities in this
case cannot be liable when no individual officer has violated Alysia’s constitutional
rights.
IV. Supplemental State Law Claim
Mr. Rowe also claims that under Oklahoma law, a municipality can be liable for
the acts of its police officers if they negligently cause injury.8 The district court granted
summary judgment to the municipal defendants on this claim, holding:
Summary judgment is appropriate on the negligence claim because Alysia
Rowe, not the officers, was the proximate cause of her death. Alysia
Rowe’s decision to elude the police and drive at speeds over 80 miles an
hour on unfamiliar roads was the cause of her death. Contrary to plaintiff’s
assertions, it is highly speculative that Alysia would have stopped had the
officers abandoned their chase.
Order at 13, Appellant’s App. (No. 96-6144) Vol. 2 at 490. We agree.
As the district court found, and Mr. Rowe does not appear to object, Oklahoma
8
law bars claims against the individual officers: “[I]n no instance shall an employee of the
state or political subdivision acting within the scope of his employment be named as
defendant . . . .” Okla. Stat. tit. 51, § 163(C).
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Nobody disputes that proximate cause is an essential element of a negligence
claim. Mr. Rowe argues that the issue of whether the conduct of the police officers
proximately caused Alysia’s death is for the jury. However, the Oklahoma Court of
Appeals has stated that “[w]here the facts of a case are undisputed, the issue of proximate
cause is a question for the court.” Kelly v. City of Tulsa, 791 P.2d 826, 829 (Okla. Ct.
App. 1990). The Kelly court further stated, with approval, that “the majority of
jurisdictions addressing this issue refuse to impose liability on the officer for the
independent acts of a law offender.” Id. We agree with the district court that the
undisputed facts of this case show that Alysia’s own conduct in continuing to drive at
night at high speeds along unfamiliar roads, past numerous police vehicles signaling her
to stop, proximately caused her crash and death. See Carl, 65 F.3d at 873 (noting that the
Kansas Supreme Court had “endorsed numerous vehicle pursuit cases from the majority
of states that have similarly refused to hold officers liable ‘for the acts of the fleeing
violators’”) (quoting Thornton v. Shore, 666 P.2d 655, 662 (Kan. 1983)).9 It is pure
speculation that she would have stopped had the police stopped their pursuit.
Accordingly, neither the officers, nor their supervisors, nor the municipalities may be
liable in negligence for Alysia’s death.
Both Carl and the Oklahoma case of Kelly relied upon the Kansas Supreme
9
Court’s opinion in Thornton.
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For the foregoing reasons, we AFFIRM the district court’s grant of summary
judgment to defendants on all claims in these appeals.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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