Kenneth J. Haugen v. Rochelle Brosseau, Puyallup Police Department the City of Puyallup

dissenting:

I cannot accept the majority’s conclusion that Haugen, a visibly disturbed felon willing to do almost anything to avoid capture, did not pose “a significant threat of death or serious physical injury” to others when he attempted a high-speed vehicular flight from police through a suburban residential neighborhood on a Sunday afternoon. Nor can I accept the majority’s holding that— because police can reduce the danger of a high-speed chase by letting a felon escape — police may never use deadly force to protect the public from the danger posed by a felon’s reckless flight from police in a vehicle. The majority’s sweeping holding, which promises an easy escape to any fel *877 on willing to threaten innocent lives by driving recklessly, is indefensible as a matter of law and policy, and it conflicts with our sister circuits’ holdings that police officers do not violate the Fourth Amendment by using deadly force to stop a fleeing felon who appears likely to drive an automobile with willful disregard for the lives of others. 1 The majority opinion creates a new obstacle to effective law enforcement in the western United States. It threatens the innocent to protect the…

Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge REINHARDT; Dissent by Judge GOULD.

OPINION

On February 21, 1999, Officer Rochelle Brosseau of the Puyallup, Washington, Police Department shot Kenneth Haugen in the back as he tried to flee from police in his vehicle. Haugen filed a § 1983 suit in district court alleging a violation of his *860 constitutional rights, and the court granted summary judgment to Brosseau. Construing the evidence in the light most favorable to Haugen, we inquire whether Bros-seau’s use of deadly force violated the Fourth Amendment and, if it did, whether she is entitled to qualified immunity. We conclude that the evidence, so construed, shows that Brosseau’s conduct violated the Fourth Amendment, and, further, that her conduct violated clearly established law governing the use of deadly force as set forth in Tennessee v. Garner, 471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985). We therefore reverse the district court’s grant of summary judgment.

I. Background

Kenneth Haugen and Glen Tamburello were in business together selling drugs and occasionally fixing cars. At some point, their relationship soured, and Hau-gen decided to dissolve the…

concurring:

I join fully in Judge Fletcher’s opinion for the court, on the understanding that officers may not use deadly force against an otherwise nondangerous felony suspect simply because a chase of that suspect, high-speed or otherwise, would become or does become dangerous. Rather, as I understand the controlling law, if a high-speed chase of a nondangerous felony suspect would be, or becomes, dangerous, the officers must terminate the chase. In other words, the chase itself cannot create the danger that justifies shooting a suspect who, under Garner, may not otherwise be shot. I do not understand the out-of-circuit cases discussed in Judge Fletcher’s excellent opinion and in the dissent to hold otherwise.

339 F.3d 857 Kenneth J. HAUGEN, Plaintiff-Appellant, v. Rochelle BROSSEAU, Puyallup Police Department; The City of Puyallup, Defendants-Appellees. No. 01-35954. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 4, 2003. Filed August 4, 2003. COPYRIGHT MATERIAL OMITTED Randy W. Loun, Loun & Tyner, Bremerton, Washington, for the plaintiff-appellant. Mary Ann McConaughy, Keating Bucklin & McCormack, Seattle, WA, for the defendants-appellees. Appeal from the United States District Court for the Western District of Washington; Robert J. Bryan, District Judge, Presiding. D.C. No. CV-01-05018-RJB. Before: REINHARDT, W. FLETCHER, and GOULD, Circuit Judges. Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge REINHARDT; Dissent by Judge GOULD. OPINION WILLIAM W. FLETCHER, Circuit Judge. 1 On February 21, 1999, Officer Rochelle Brosseau of the Puyallup, Washington, Police Department shot Kenneth Haugen in the back as he tried to flee from police in his vehicle. Haugen filed a § 1983 suit in district court alleging a violation of his constitutional rights, and the court granted summary judgment to Brosseau. Construing the evidence in the light most…