Timothy Helseth v. John Burch, in His Individual Capacity , 258 F.3d 867 ( 2001 )

McMILLIAN, Circuit Judge,

dissenting.

I join in Part II of Judge Bye’s opinion concurring in part and dissenting in part, because, assuming for purposes of analysis that the Supreme Court adopted a per se rule in County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (Lewis), I agree that there was sufficient evidence of intent to harm to defeat the motion for summary judgment on the basis of qualified immunity. I also agree with Judge Bye’s comments criticizing the Lewis analysis, but I write separately to explain why I do not agree that the Supreme Court adopted a per se rule in Lewis, and why I think that the old axiom that hard cases sometimes make bad law applies to the difference between the majority opinion and the earlier panel opinion in Feist v. Simonson, 222 F.3d 455 (8th Cir.2000) (Feist). The result is that the majority has created dangerous precedent whereby future courts applying the rule of this case have no choice but to blindly apply a rule of law without regard to the facts.

Unfortunately, the two senior judges who sat on Feist did not have an opportunity to hear this case argued because the en banc panel involved only active judges. My main concern relates to the statement of the majority opinion that the panel in Feist paid too little heed to the Supreme Court’s holding in Lewis, and instead relied primarily on “a portion of the Court’s justification for that holding.” See supra p. 871. Although I am not sure exactly what the latter phrase means, to hold that the panel in Feist paid too little heed to the Supreme Court’s holding in Lewis totally obfuscates an analytical reading of the Feist opinion.

The majority opinion extracts from Lewis a categorical rule that once an officer instantaneously engages in a high-speed automobile chase of a suspected criminal-regardless of what intervenes after the instantaneous pursuit-no substantive due process violation occurs absent intentional harm. See supra pp. 871 & note 2. Feist took the position that the Lewis Court did not intend to create a mechanical rule to be applied blindly, and that intervening acts, such as egregious acts beyond instantaneous reactions, that is, when actual deliberation is practical, could warrant the application of the deliberate indifference standard. 222 F.3d at 461. Lewis says exactly that. 523 U.S. at 851, 118 S.Ct. 1708.

Justice Souter’s thorough examination of this issue clearly denounces applying the Lewis holding “like a statute in that its plain language must be obeyed.” See supra p. 871. Nevertheless, the majority opinion interprets Lewis to say that “the intent-to-harm standard, rather than the deliberate indifference standard, applies to all high-speed police pursuits aimed at apprehending suspected offenders.” See supra p. 871 (emphasis added). One must give the Supreme Court greater credibility than simply applying Lewis, absent an evaluation of the facts of a given case.

Every principle of law turns upon the factual background of the given case. To hold otherwise ignores Justice Souter’s admonition in Lewis:

Rules of due process are not, however, subject to mechanical application in unfamiliar territory. Deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking. What we have said of due process in the procedural sense is just as true here:

The phrase [due process of law] formulates a concept less rigid and more fluid that those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.

523 U.S. at 849, 118 S.Ct. 1708, citing Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942).

Clearly, the “exact analysis of circumstances” in a given case requires more than rubber-stamping a particular rule of law. To suggest the Supreme Court endorsed such a mechanical approach in Lewis fails to give any sense of jurisprudential credit to the highest court of the land. Lewis requires that we apply the “exact analysis” of “the totality of facts in a given case.” The holding in Lewis may deny recovery as to the high-speed chase involved in this case. However, Feist is clearly distinguishable from both this case and Lewis.

As the panel in Feist explained, what began as an instantaneous pursuit by Officer Simonson in a high-speed chase changed significantly along the way. The Feist panel placed great reliance upon the specific findings of fact made by the district judge:

[wjhile Officer Simonson should be afforded deference for his initial decision, the contention that he did not have the time or ability to clearly assess the rising levels of potential danger in the situation should be subject to further analysis. At many points during the chase, Simonson had the opportunity to balance the law enforcement goal of apprehending Shannon for use of a stolen vehicle (a low-level penalty likely carrying no prison time) against the threat to the general public. Each new turn onto one-way streets and especially the accessing the freeway to drive on the wrong side of the median, presented a juncture for reassessment and evaluation of the escalating consequences of the chase. Rather than aborting the chase as the danger increased, the speed and number of pursuing vehicles also increased.... A review of Simonson’s conduct, in light of Lewis and other established precedent, reveals that genuine issues of fact exist as to whether his actions “shocked the conscience” for the purpose of a substantive due process claim.

Mem. op. and order at 18-19 (emphasis added), cited in Feist, 222 F.3d at 461. Those findings of fact should not and cannot be set aside unless they are clearly erroneous. In Feist no one argued that the district judge’s findings were clearly erroneous.

In Lewis the high-speed chase involved seventy-five seconds. In Feist it extended over six minutes. The majority opinion in overruling Feist ignores the fact that Officer Simonson made a conscious decision to pursue the driver of the fleeing vehicle and follow it at speeds of seventy miles per hour, traveling the wrong direction down Interstate Highway 1-94, covering 1.2 miles, as well as pursuing the fleeing automobile the wrong way down several one-way streets. Each time Simonson pursued on a one-way street, he deliberately chose to use the on-coming vehicles as a moving blockade against the fleeing juveniles. Si-monson had been trained by the Minneapolis Police Department not to duplicate the path of the fleeing driver, not to chase when to pursue would put the public in danger and to reflect upon the wisdom of each escalation of the pursuit. Notwithstanding such training, Simonson deliberately chose to increase the danger to the public. Simonson proceeded in deliberate disregard of that training.

In addition to eschewing the egregious conduct of Officer Simonson, the majority opinion here did not examine the testimony in Feist. Other officers testified at trial that Simonson had created an unreasonable risk of danger to the public by pursuing the fleeing vehicle and driving through the 1-94 tunnel the wrong way. This compelling evidence supported the district court’s conclusion that “Simonson’s instinctive decision to give chase slowly escalated into a high-speed chase involving wrong-way travel, thereby increasing the potential for harm to the general public.” 222 F.3d at 461.

In conclusion, let me say that in Feist the unconstitutional action of Officer Si-monson was not based upon his initial decision to pursue the fleeing vehicle (indeed, Feist agreed with the district court that the instantaneous judgment and reaction were fully justified, see id. at 461, 464), but upon the intervening facts, the most significant of which was Simonson’s decision, after actual deliberation, to pursue the fleeing vehicle the wrong way on one-way streets and onto the interstate highway, through a darkened tunnel, into oncoming traffic. See id. at 464.

If the majority opinion’s interpretation of Lewis is that no high-speed pursuits by police officers, regardless of intervening events, including actual deliberation, provide a substantive due process claim absent intent to cause harm, then obviously Feist was wrongly decided. However, the panel in Feist rejected a mechanical application and instead, followed Lewis’s mandate to perform an exact analysis of the totality of facts in a given case. Feist was based upon the principles set out in Lewis. The majority opinion states that Feist should be overruled because it ignored Lewis. A fair reading of Feist would dictate that the mechanical application of Lewis to all high-speed police chases misreads Lewis.