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

351 F.3d 372 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 — Seattle, Washington. Filed August 4, 2003. Amended December 5, 2003. Randy W. Loun, Loun & Tyner, Bremerton, Washington, for the plaintiff-appellant. Mary Ann McConaughy, Keating Bucklin & McCormack, Seattle, Washington, 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 STEPHEN REINHARDT, WILLIAM A. FLETCHER, and RONALD M. GOULD, Circuit Judges. 1 Opinion by Judge WILLIAM A. FLETCHER; Concurrence by Judge REINHARDT; Dissent by Judge GOULD 2 ORDER AMENDING OPINION AND DENYING REHEARING AND AMENDED OPINION ORDER 3 This court's opinion, filed August 4, 2003, [ 339 F.3d 857 ] is amended as follows: 4 1. The fifth sentence in the full paragraph on slip op. 10604 [ 339 F.3d at 868 ] that reads: 5 "Brosseau had not called Subido and Pashon to assist her, and there is no indication that they…

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 implicit suggestion 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 position, which promises an easy escape to any felon 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…

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

ORDER AMENDING OPINION AND DENYING REHEARING AND AMENDED OPINION

ORDER

This court’s opinion, filed August 4, 2003, [ 339 F.3d 857 ] is amended as follows:

1. The fifth sentence in the full paragraph on slip op. 10604 [ 339 F.3d at 868 ] that reads:

2. The second sentence in the first full paragraph on slip op. 10608 [ 339 F.3d at 870 ] that now reads:

is replaced with the following two sentences:

amended as follows:

The second and third sentences in the first full paragraph on slip op. 10619 [ 339 F.3d 876 -77] that now read:

are replaced with the following sentences:

Footnote 1 remains in the edited text, as shown.

The first two sentences in the third full paragraph on slip op. 10627 [ 339 F.3d 881 -82] that now read:

are replaced with the following sentences:

Footnote number 10 remains in the edited text, as shown.

The last sentence appearing on slip op. 10628 [ 339 F.3d at 881 ] that currently reads:

is now supplemented to read:

The first full paragraph on slip op. 10629 [ 339 F.3d at 882 ] currently reads:

This paragraph should be deleted in its entirety.

With 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 Gamer, may not otherwise be shot. I do not understand the out-of-eir-cuit cases discussed in Judge Fletcher’s excellent opinion and in the dissent to hold otherwise.