                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3235
                                    ___________

Timothy Helseth,                         *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
John Burch, in his individual capacity, *
                                         *
      Defendant - Appellant,             *
                                         *
                                    ___________

                              Submitted: January 11, 2001

                                   Filed: July 31, 2001
                                    ___________

Before WOLLMAN, Chief Judge, McMILLIAN, RICHARD S. ARNOLD,
      BOWMAN, BEAM, LOKEN, HANSEN, MORRIS SHEPPARD ARNOLD,
      MURPHY, and BYE, Circuit Judges.
                             ___________

LOKEN, Circuit Judge.

       In County of Sacramento v. Lewis, 523 U.S. 833, 835 (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.” In Feist v. Simonson, 222 F.3d 455, 464 (8th
Cir. 2000), which involved a high-speed pursuit of a stolen car, a panel of this court
declined to apply the intent-to-harm standard of Lewis because the police officer “had
ample time to deliberate” during the six-minute chase. In this case, an intoxicated
driver seriously injured Timothy Helseth while being pursued at high speed by police
officer John Burch. Relying on Feist, the district court denied Burch qualified immunity
from Helseth’s substantive due process claim under 42 U.S.C. § 1983. Helseth v.
Burch, 109 F. Supp. 2d 1066, 1078 (D. Minn. 2000). Burch appealed, and we granted
his petition for initial en banc review.1 We overrule Feist and reverse.

                                    I. Background.

       Shortly after midnight on August 22, 1995, an intoxicated Everett Contois raced
his car on a straight stretch of road in Blaine, Minnesota, a Twin Cities suburb.
Contois’s car was traveling 111 mph when it passed Blaine police officer William Bott
in his squad car. Bott began pursuit, activating his lights and siren and notifying the
police dispatcher of the chase. After Contois had successfully evaded Bott for several
miles, running stop signs and stoplights at speeds of 60 to 80 mph, he raced passed
Burch, who joined the chase as the lead squad car.

       With Burch in close pursuit, Contois drove through four stop signs, stopped
briefly in a dead-end cul-de-sac, and then drove through two lawns and over a small
retaining wall to another street. As Contois slowed to make a right turn, Burch
attempted to stop the Contois vehicle with three Pursuit Intervention Tactics (“PIT”)
maneuvers, in which the officer drives alongside the rear of the fleeing vehicle, turns,
and hits the vehicle’s rear end, causing it to spin and stop. The third PIT spun


      1
        The parties in Feist settled while the officer’s petition for rehearing en banc was
pending. The petition was then dismissed, with four judges dissenting. 222 F.3d at
465. Only the court sitting en banc may overrule the Feist panel decision. See United
States v. Missouri Valley Constr. Co., 741 F.2d 1542, 1546 (8th Cir. 1984).

                                           -2-
Contois’s vehicle into a grassy median, but Contois quickly sped off, heading in the
wrong direction on Highway 10, a heavily traveled thoroughfare. Another PIT
maneuver again spun Contois into the median, but he re-entered Highway 10 (now
heading in the right direction) and accelerated to speeds of 80 to 100 mph. Contois
turned onto Highway 65 and then 81st Avenue, entering the neighboring suburb of
Spring Lake Park, where another police car joined the pursuit. Just over six minutes
after Burch entered the chase, Contois ran a red light and collided with a pickup truck
driven by Helseth. The crash killed Helseth’s passenger, seriously injured three
juvenile passengers in Contois’s car, and left Helseth a quadriplegic. Contois was tried
and convicted of third degree murder and other offenses in state court.

        Helseth filed this § 1983 damage action against Burch, alleging numerous
constitutional violations arising from Burch’s high-speed pursuit of Contois’s vehicle.
After substantial discovery, Burch moved for summary judgment. The district court
dismissed all but Helseth’s substantive due process claim. As to that claim, applying
Feist, the court denied Burch qualified immunity because the evidence could support
a finding that Burch conducted the pursuit with deliberate indifference to public safety
and Helseth’s rights. Alternatively, applying Lewis, the court denied Burch qualified
immunity because the evidence could support a finding that Burch intended to harm
Contois and his passengers by engaging in the PIT maneuvers. Burch appeals the
denial of qualified immunity. As Lewis makes clear, in considering the qualified
immunity defense, we must “determine first whether the plaintiff has alleged a
deprivation of a constitutional right at all.” 523 U.S. at 841 n.5. That is an issue we
review de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994).


                       II. The Proper Culpability Standard.

      Lewis reaffirmed that the substantive component of the Due Process Clause
protects a private citizen against an abuse of power by an executive official that
“shocks the conscience.” Lewis involved a § 1983 damage claim by a motorcycle

                                          -3-
passenger injured at the end of a deputy sheriff’s high-speed chase. The Ninth Circuit
reversed the grant of summary judgment to the deputy, concluding that “the appropriate
degree of fault to be applied to high-speed police pursuits is deliberate indifference to,
or reckless disregard for, a person’s right to life and personal security.” Lewis v.
Sacramento County, 98 F.3d 434, 441 (9th Cir. 1996). The Supreme Court reversed.
The Court explained that the task was to determine the level of culpability which in this
context “is so egregious, so outrageous, that it may fairly be said to shock the
contemporary conscience.” 523 U.S. at 848 n.8 & 849. For high-speed police
pursuits, the Court rejected the deliberate indifference standard, which it characterized
as a “midlevel” fault standard. Analogizing such pursuits to prison riots, the Court
concluded that “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 due process violation.” 523 U.S. at 836.

       Feist involved a high-speed police chase that ended when the stolen car being
pursued hit Feist’s vehicle head-on at 100 mph. Eschewing the intent-to-harm standard
of Lewis, our panel affirmed the denial of qualified immunity to the pursuing police
officer, concluding that the deliberate indifference standard applies to a high-speed
pursuit case if the pursuing police officer “had ample time to deliberate . . . [and] made
a deliberative decision to continue the chase and to be indifferent to the dangers
obviously inherent in his conduct.” 222 F.3d at 464. In this case, the district court
concluded that the deliberate indifference standard should apply because Burch, like
the police officer in Feist, “engaged in conscious deliberation rather than reflexive
conduct.” Helseth, 109 F. Supp. 2d at 1076.

       Our principal problem with the decision in Feist is that the panel paid too little
heed to the Supreme Court’s holding in Lewis, instead relying primarily on a portion
of the Court’s justification for that holding. The Court in Lewis was careful to state its
holding in the first paragraph of the opinion -- “in a high-speed automobile chase aimed
at apprehending a suspected offender . . . only a purpose to cause harm unrelated to the

                                           -4-
legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the
conscience, necessary for a [substantive] due process violation.” 523 U.S. at 836. The
Court restated its categorical rule toward the end of its opinion -- “we hold that high-
speed chases with no intent to harm suspects physically or to worsen their legal plight
do not give rise to liability under the Fourteenth Amendment, redressible by an action
under § 1983.” Id. at 854. For the lower federal courts, an explicit Supreme Court
holding is like a statute in that its plain language must be obeyed. Accord Kinstler v.
First Reliance Std. Life Ins. Co., 181 F.3d 243, 250-51 (2d Cir. 1999). Lewis plainly
stated that the intent-to-harm standard, rather than the deliberate indifference standard,
applies to all high-speed police pursuits aimed at apprehending suspected offenders.2

      To be sure, the Court in Lewis explained that the deliberate indifference standard
is appropriate “only when actual deliberation is practical.” 523 U.S. at 851. The panel
in Feist saw this language as an invitation to reject intent-to-harm as the governing
standard whenever a judge or a jury could say, with the wisdom of hindsight, that an
officer engaged in a high-speed pursuit had “ample time to deliberate.” But this
reasoning not only produces a standard that eviscerates the holding of Lewis, it also
gives too little recognition to the Court’s other bases for that holding -- its historical
reluctance “to expand the concept of substantive due process,” 523 U.S. at 842; its
explicit reliance on Whitley v. Albers, 475 U.S. 312, 320 (1986), which adopted the
intent-to-harm standard for a two-hour prison riot, 523 U.S. at 853-54; its doubt


      2
        Six Justices joined Justice Souter’s majority opinion in Lewis. Justice Stevens
concurred in the judgment because he would have granted the deputy qualified
immunity, thereby avoiding the constitutional issue. 523 U.S. at 859. Justices Scalia
and Thomas concurred in the judgment because they would have rejected the shocks-
the-conscience standard and held that there is no “substantive-due-process right to be
free from reckless police conduct during a car chase.” 523 U.S. at 863. Given this
array of views and the clarity of the Court’s holding, we find no basis to infer that a
majority of the Court would now retreat from Lewis’s bright-line standard and adopt
the fact-intensive, hindsight-oriented approach of the panel in Feist.

                                           -5-
whether “it makes sense to speak of indifference as deliberate in the case sudden
pursuit,” 523 U.S. at 851; its recognition that police officers confronting high-speed
lawlessness are “subject to countervailing [law] enforcement considerations,” 523 U.S.
at 855; its concern that any standard less than intent-to-harm “might cause suspects to
flee more often, increasing accidents of the kind which occurred here,” 523 U.S. at 858
(Kennedy, J., concurring); and the belief of at least some Justices that the question of
police officer liability for reckless driving during high-speed pursuits should be decided
by the elected branches of government, 523 U.S. at 864-65 (Scalia, J., concurring).3

       Since Lewis, all other circuits that have examined the issue have applied the
intent-to-harm standard in high-speed police pursuits cases, without regard to the
potentially limiting factors identified by the panel in Feist -- the length of the pursuit,
the officer’s training and experience, the severity of the suspect’s misconduct, or the
perceived danger to the public in continuing the pursuit. See Trigalet v. City of Tulsa,
239 F.3d 1150, 1155 (10th Cir. 2001); Davis v. Township of Hillside, 190 F.3d 167,
170 (3d Cir. 1999), cert. denied, 528 U.S. 1138 (2000); Onossian v. Block, 175 F.3d
1169, 1171-72 (9th Cir.), cert. denied, 528 U.S. 1004 (1999); Salamacha v. Lynch,
1998 WL 743905, at *2 (2d Cir. Sept. 25, 1998). We now join those circuits and
overrule Feist. We hold 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.

                     III. Did Officer Burch Intend To Harm?

      Although we overrule Feist, we agree with its decision “that the Lewis intent
standard applies regardless of whether a suspect or bystander is hurt.” 222 F.3d at 462.


      3
        Under Minnesota law a police officer has official immunity from claims for
injuries caused by his or her decision to engage in and continue a high-speed pursuit.
Pletan v. Gaines, 494 N.W.2d 38, 41 (Minn. 1992).

                                           -6-
Accord Onossian, 175 F.3d at 1171-72. The district court denied Burch summary
judgment under the intent-to-harm standard because Burch’s deliberate ramming of
Contois’s vehicle in four PIT maneuvers would permit a reasonable jury to “infer from
these facts that Burch intended to harm Contois and the three juvenile passengers in his
car.” 109 F. Supp. 2d at 1077.

       The district court’s decision conflicts with Davis v. Township of Hillside, 190
F.3d at 171, where the Third Circuit concluded that deliberate ramming of a fleeing
suspect’s car “does not permit an inference of intent to harm” under Lewis. We agree
with the decision in Davis. In applying the Lewis standard,“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 due process violation.” 523 U.S.
at 836 (emphasis added). Here, the undisputed evidence is that Burch employed the
PIT maneuvers in an attempt to stop the fleeing Contois vehicle and apprehend its
driver. The only harm intended by this conduct was incidental to Burch’s legitimate
objective of arresting Contois. That intent does not, as a matter of law, establish a
substantive due process violation.4

       Moreover, the PIT maneuvers failed in their objective, and Contois continued his
high-speed flight. Contois eventually crashed into Helseth’s vehicle, with Burch still
in pursuit. At that time, Burch had no more intent to harm than that inherent in the
high-speed pursuit of any suspected offender. On appeal, Helseth points to Contois’s
deposition testimony that he felt terrorized by Burch’s aggressive pursuit and argues
that this case is like Checki v. Webb, 785 F.2d 534 (5th Cir. 1986), which the Court

      4
        Had Burch succeeded in stopping the Contois vehicle, his actions in effecting
such a seizure would have been subject to a reasonableness challenge under the Fourth
Amendment. See Brower v. County of Inyo, 489 U.S. 593, 599-600 (1989). But
Contois eluded arrest and resumed his flight. A § 1983 claim challenging Burch’s
continued pursuit must be based upon substantive due process. See Lewis, 523 U.S.
at 842-45 & n.7.

                                          -7-
in Lewis cited as an example of intent to cause harm unrelated to the legitimate object
of an arrest. 523 U.S. at 854 n.13. But unlike the law-abiding citizens in Checki, who
were hounded for miles by police officers in an unmarked vehicle, Contois was a
fleeing criminal, whose irresponsible high-speed driving endangered countless citizens
and ultimately killed one innocent bystander and maimed another, Timothy Helseth.
Burch and the other police officers who risked their lives to remove this menace from
the public highways were not guilty of a conscience-shocking intent to harm.

       Society could reasonably decide that an innocent bystander injured during such
high-speed police pursuits should be compensated from the public coffers. But that is
a legislative decision. There was no violation of Helseth’s rights under the Due Process
Clause. The August 18, 2000, order of the district court is reversed in part, and the
case is remanded for entry of an order dismissing Helseth’s § 1983 complaint.

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 (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.




                                           -8-
       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. 5.
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. 5-6 & 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.

       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. 5. 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. 5 (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:


                                           -9-
            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, citing Betts v. Brady, 316 U.S. 455, 462 (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:




                                          -10-
      [w]hile 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 I-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. Simonson 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.

                                         -11-
       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 I-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
Simonson 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.

BYE, Circuit Judge, concurring in part and dissenting in part, and with whom
McMILLIAN, Circuit Judge, joins in Part II.




                                           -12-
       I reluctantly concur in Part II of the majority's opinion because I agree that
County of Sacramento v. Lewis, 523 U.S. 833 (1998), requires a § 1983 plaintiff to
satisfy the "intent to harm" standard in any high speed pursuit case; I write separately
to explain why I believe the "deliberate indifference" standard would be more
appropriate in many high speed pursuit cases. I respectfully dissent from Part III of the
majority's opinion, however. I believe that Timothy Helseth survives summary
judgment even when applying the higher "intent to harm" standard required by Lewis.

                                            I

       Lewis rests upon the premise that trained officers are unable to deliberate during
the course of a high speed pursuit, no matter its duration. I question that premise.
Behavioral and tactical training enables officers (particularly those who have been
involved in many high speed chases, such as John Burch) to process the events in a
rapidly-evolving situation as if they occurred at a more deliberate pace. In this respect,
officers are analogous to professional athletes who study film and plot gameplans to
"slow" the speed of a game, enabling them to understand and react instantaneously to
complex, changing circumstances. Because police officers are regularly trained to
adjust to fast-paced situations, we must expect that their conduct will usually be
deliberate — despite the pace at which events occur to the untrained eye. Lewis
suggests that we can't expect officers to think while they act, a proposition that might
offend every well-trained officer in this country.

      The facts of this case, as well as those in Feist v. Simonson, 222 F.3d 455 (8th
Cir. 2000), prove my point. In this case, the City of Blaine's police department
regulations on high speed pursuits required officers to make conscious deliberations
during the course of a chase:

      Officers involved in a pursuit must continually question whether the
      seriousness of the violation reasonably warrants continuation of the

                                          -13-
      pursuit. A pursuit shall be discontinued when there is a clear danger to
      the pursuing officers or the public. . . . The pursuing officers must
      consider present danger, seriousness of crime, length of pursuit, whether
      or not the application of deadly force by the pursuing Officer is justified,
      and the possibility of identifying the suspect at a later time when
      determining whether or not to continue the pursuit.

App. at 333 (emphasis added).

      Indeed, Officer Burch admitted that he had time to deliberate during the pursuit:

      Q.    But the policy and your training and your experience teach
            you to think about what you are doing in a high speed
            pursuit and whether the risk of the pursuit is worth the
            apprehension, correct.
      A.    Sure.
      Q.    And that is not just supposed to be a reflex, that is supposed
            to be a thought process, correct.
      A.    Sure.
      Q.    And you had time to make decisions about what tactics to
            use in the chase, correct?
      A.    Sure.
      Q.    You had time to consider whether you would try one type or
            another of ramming maneuvers, correct?
      A.    Sure.

            ....

      Q.    You had time to consider the mechanical damage that you had done to the
            vehicle.
      A.    That is correct.

            ....

      Q.    You had time to consider whether to continue the chase into another
            police jurisdiction.


                                         -14-
      A.     That is correct.

Id. at 480-82.

       Similarly, Feist involved an officer who had participated in over one hundred
high speed chases who "[a]t many points during the chase [of extended duration] had
the opportunity to balance the law enforcement goal of apprehending [the suspect] for
use of a stolen vehicle (a low-level penalty likely carrying no prison time) against the
threat to the general public." 222 F.3d at 461.

       Because I believe that officers deliberate in most pursuits, I am frustrated by our
inability to assess, on a case-by-case basis, whether the "deliberate indifference"
standard should apply to a particular high speed pursuit. In adopting the "intent to
harm" standard, the Supreme Court compared an officer's ability to deliberate during
a high speed chase with that of a prison official responding to a riot. See Lewis, 523
U.S. at 852-53 (discussing Whitley v. Albers, 475 U.S. 312 (1986)). I find that
comparison unhelpful. "[O]ur concern with preserving the constitutional proportions
of substantive due process demands an exact analysis of circumstances" before
deciding what shocks the conscience. Id. at 850 (emphasis added). One's conscience
may not be shocked by deliberate indifference to rioting prisoners. But in assessing the
exact circumstances involved in a high speed pursuit of extended duration, an officer's
deliberate indifference to the rights of innocent motorists and bystanders may very well
shock the conscience.

       Furthermore, the "intent to harm suspects" standard adopted by the Supreme
Court fits ill with the type of § 1983 claim involved here — that of an innocent motorist
injured as the result of a high speed pursuit. Oddly, under the Supreme Court's test, an
innocent motorist need not prove that an officer intended to harm him, but that the
officer intended to harm a suspect. Why are we concerned with an officer's intent to


                                          -15-
harm a suspect, a juror might wonder, when the innocent motorist's constitutional rights
are at stake? The "deliberate indifference" test is more compatible with the § 1983
claim of an innocent motorist, who would then be required to prove deliberate
indifference to his own constitutional rights.

       For the reasons stated by the majority, however, I agree that the Supreme Court
held that § 1983 claimants must satisfy the heightened, intent-to-harm standard in all
high speed pursuit cases. Thus, irrespective of my differing views on a well-trained
officer's ability to deliberate, I turn my attention to Mr. Helseth's proof that Officer
Burch intended to harm nineteen year-old Everett Contois, the fleeing suspect in this
case.

                                           II

       Helseth introduced substantial evidence tending to prove that Burch intended to
injure Contois. Burch purposefully placed himself in a position to take over as the lead
pursuer in an ongoing chase. App. at 345. He chased the fleeing vehicle at extremely
high speeds, between 80 and 100 miles per hour. Id. at 349. He chased the vehicle
over a retaining wall, plowing through several residential backyards in the dark of
night, within feet of trees, patios, and occupied homes. Id. at 342-44, 463-68. Officer
Bott, the original officer, terminated the chase after the suspect vehicle drove into
residential backyards; but Burch continued the pursuit for an extended period of time
after that. Id. at 287, 291, 341 349.

      Most significantly, on four occasions Burch consciously employed PIT
maneuvers to intentionally ram the suspect vehicle. Id. at 49, 345-46, 440-42, 471.
The City of Blaine's police department regulations proscribe PIT maneuvers except in
the most extreme circumstances. Id. at 330. PIT maneuvers are considered to be
deadly force when used on a vehicle moving at high speeds ("intentional ramming


                                         -16-
causes the high probability of serious injury or death"). Id. Based on the Blaine
regulations, as well as his training, Burch knew or should have known that intentional
officer-initiated contact with a high speed vehicle was considered the use of deadly
force. Id. at 46-49.

       Under these circumstances, Officer Burch's conduct shocks the conscience. He
knowingly and deliberately used deadly force against a suspect whose only known
offenses were misdemeanors — speeding and fleeing a police officer. Officer Burch
could have terminated this chase after he identified the vehicle's license plate5 so that
he or other officers could subsequently have investigated the matter. Instead, Burch
continued a chase that ultimately produced the death and paralysis of innocent
motorists, and the incarceration of Contois for eighteen years for third-degree murder.

       Officer Burch's conduct would shock the conscience even if we knew nothing
else about him. But we do. Helseth contends that Burch is that rare "rogue cop" who
enjoys nothing more than the thrill of the chase. Burch's pre- and post-incident record
strongly suggests that to be true. Burch was involved in multiple police vehicle
collisions or accidents (several involving the intentional ramming of suspect vehicles)
both before and after the Contois pursuit. App. at 239-48, 527, 547-56. He was
disciplined on several occasions for his "maverick behavior" and failure to adhere to
department policies and procedures (including frequent driving violations). Id. at 529-
44.

       During a 1989 disciplinary proceeding, Officer Burch stated "if I have to answer
a call and concern myself with car safety, then people are going to die," leading the
police chief to retort "[Burch] overlooks the fact that someone could die as a result of

      5
       Burch denied that he had identified the vehicle's license plate until he was
confronted with his own voice, identifying the plate, on a tape recording of the radio
transmissions during the chase. Supp. Jt. App. at A-2, A-3.

                                          -17-
his unsafe driving." Id. at 529 (emphasis added). During a 1994 disciplinary
proceeding, an arbitrator commented that "[t]he City suggests it has repeatedly
attempted to reconcile [Burch's] maverick behavior through a variety of disciplinary
actions but he fails to admit fault or demonstrate remorse." Id. at 538.

       My concerns are somewhat alleviated by the fact that Burch decided to retire
from the Blaine Police Department sometime after the City suspended him for
unreasonably using deadly force by performing an unnecessary PIT maneuver in yet
another high speed chase. In February 1998, Burch drove one of four squad cars (two
from the City of Blaine and two from the City of Coon Rapids) involved in a high speed
pursuit. Burch lost his spot in the chase when he struck the other Blaine squad car.
The two Coon Rapids squads took over the chase. The suspect vehicle blew a tire,
slowing to 40-50 miles per hour. By the time Burch had closed on the slowing pursuit,
the suspect vehicle was pulling over and traveling about 5-10 miles per hour.
Nonetheless, Burch radioed ahead his intention to ram the vehicle, sped between the
two Coon Rapids squad cars, and intentionally rear-ended the slow-moving suspect
vehicle. Id. at 552-56.

        In Lewis, the Supreme Court stated that "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 due process violation [in a high speed chase]." 523
U.S. at 836 (emphasis added). The majority concludes that we cannot infer intent to
harm from Burch's intentional ramming because "[t]he only harm intended by this
conduct was incidental to Burch's legitimate objective of arresting Contois." Ante at
7. I strongly disagree.

       "[T]he mere fact that force may have been used while effectuating an arrest does
not automatically establish that the force was 'in relation' to a legitimate object of the
arrest under a § 1983 analysis." Davis v. Township of Hillside, 190 F.3d 167, 172 (3d


                                          -18-
Cir. 1999) (McKee, J., concurring) (emphasis added). I cannot view Burch's abuse of
executive power as incidental to a legitimate law enforcement objective. Officer
Burch's use of deadly force against a fleeing misdeameanant constituted a completely
unreasonable use of force in violation of clearly established law. See Tennessee v.
Garner, 471 U.S. 1, 12 (1985) (noting a flat prohibition against the use of deadly force
upon a fleeing misdemeanant, stemming from English common law and adopted by
most American jurisdictions); Minn. Stat. § 609.066 (prohibiting the use of deadly
force to prevent escape unless "the peace officer knows or has reasonable grounds to
believe [the suspect] has committed or attempted to commit a felony involving the use
or threatened use of deadly force [or] the officer knows or has reasonable grounds to
believe [the suspect] has committed or attempted to commit a felony if the officer
reasonably believes that the person will cause death or great bodily harm if the person's
apprehension is delayed.") (emphasis added).

     In addition, I believe that Burch's intentional ramming of a fleeing
misdemeanant's vehicle amounts to the same level of terrorizing conduct involved in
Checki v. Webb, 785 F.2d 534 (5th Cir. 1986).6 The Supreme Court referred to Checki


      6
          Contois described his state of mind after the ramming started as follows:

      The chase started out the guy was just chasing me, all right, then this
      other guy shows up on the scene and he just started ramming me . . . as
      soon as I came around the corner he hit me again and he hit me again and
      hit me again and he hit me, went the wrong way and he hit me again . . .
      he hit me down the road and he hit me in the ditch and he hit me there and
      he hit me here.

      ...

      I realize that I was success[fully] speeding, but I would assume that the
      original officer chasing me realized that I wasn't intentionally endangering
      anybody else. Every time there was a stoplight . . . my brake lights would

                                           -19-
when, by negative implication, the Court recognized a redressible § 1983 action in
situations when an officer intends "to worsen [a suspect's] legal plight." Lewis, 523
U.S. at 854 & n.13. One can hardly dispute that Contois's legal plight worsened as this
chase progressed. A fleeing misdemeanant at the start of the chase, he was a murderer
at its end.

       The district court correctly concluded that Burch unreasonably used deadly force
in violation of clearly established law, and that a reasonable jury could infer from
Burch's conduct that he "intended to harm Contois and the three juvenile passengers in
his car." Helseth v. Burch, 109 F. Supp. 2d 1066, 1077 (D. Minn. 2000). I would




      come on and I take off again when I saw him and kind of like a cat and
      mouse kind of thing . . . He saw me again, better take off again. . . . It
      wasn't like a terrifying situation . . . you are looking out . . . for cars . . .
      for people. But when all of a sudden it goes from . . . not just a cat and
      mouse thing anymore, it's a tiger and a mouse and this guy is going to get
      you no matter what it takes, so now you are really trying to get away.
      Before you were trying to elude, maybe hide and pull up in a driveway
      and shut your lights off so he drives by. But when they start ramming into
      your car, you don't have that option. You don't have the option of getting
      out and running when he is ramming into you. You figure if you do get
      out, he's going to shoot you so you just keep trying to get away.

      ...

      When people say I'm crazy because I thought there that they were trying
      to kill me, if you read police procedures that [ramming] is considered
      deadly force. Basically they are trying to kill you. That is not — well,
      let's just do this, no, let's try to kill this guy so he stops. So I don't think
      that my state of mind after being rammed was too far off base.

App. at 272-76.

                                            -20-
therefore affirm the district court's denial of Burch's motion for summary judgment on
the basis of qualified immunity.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                        -21-
