                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3519
                                   ___________

Sybil Hernandez, Mother and             *
Administrator of the Estate of          *
Albert James Six Feathers,              *
                                        *
      Plaintiff - Appellee,             *
                                        *
      v.                                *
                                        *
Brett Jarman, Individually,             *   Appeals from the United States
                                        *   District Court for the
      Defendant - Appellant,            *   District of South Dakota.
                                        *
State of South Dakota; Edgemont         *
Police Department; Mary Kellogg,        *
Individually and in her Official        *
Capacity as a City Council              *
Commissioner; Roger Le Vasseur,         *
Individually and in his Official        *
Capacity as a City Council              *
Commissioner; William Clark,            *
Individually and in his Official        *
Capacity as a City Council              *
Commissioner; Alex Asbridge,            *
Individually and in his Official        *
Capacity as a City Council              *
Commissoner; L. George West,            *
Individually and in his Official        *
Capacity as a City Council              *
Commissioner; Ted W. Hinesley,          *
Individually and in his Official        *
Capacity as Edgemont City Attorney;     *
City of Edgemont; Jeffrey D. Tarrell,    *
Individually; Martha Jarman,             *
Individually and in her Official         *
Capacity as a Deputy with the Fall       *
River County Sheriff's Department;       *
Fall River County Sheriff's              *
Department; Fall River County,           *
South Dakota; Robert Fazendin,           *
Individually and in his Official         *
Capacity as a Law Enforcement            *
Officer with the Newcastle Police        *
Department; Newcastle Police             *
Department; City of Newcastle,           *
Wyoming; John Does 1 through 5,          *
                                         *
             Defendants.                 *

                                     ___________

                                     No. 02-3520
                                     ___________

Sybil Hernandez, Mother and              *
Administrator of the Estate of           *
Albert James Six Feathers,               *
                                         *
             Plaintiff - Appellee,       *
                                         *
      v.                                 *
                                         *
Brett Jarman, Individually; State of     *
South Dakota; Edgemont Police            *
Department; Mary Kellogg,                *
Individually and in her Official         *
Capacity as a City Council               *
Commissoner; Roger Le Vasseur,           *
Individually and in his Official         *

                                         -2-
Capacity as a City Council             *
Commissioner; William Clark,           *
Individually and in his Official       *
Capacity as a City Council             *
Commissioner; Alex Asbridge,           *
Individually and in his Official       *
Capacity as a City Council             *
Commissioner; L. George West,          *
Individually and in his Official       *
Capacity as a City Council             *
Commissioner; Ted W. Hinesley,         *
Individually and in his Official       *
Capacity as Edgemont City Attorney;    *
City of Edgemont,                      *
                                       *
       Defendants,                     *
                                       *
Jeffrey D. Tarrell, Individually,      *
                                       *
       Defendant - Appellant,          *
                                       *
Martha Jarman, Individually and in     *
her Official Capacity as a Deputy with *
the Fall River County Sheriff's        *
Department; Fall River County          *
Sheriff's Department; Fall River       *
County, South Dakota; Robert           *
Fazendin, Individually and in his      *
Official Capacity as a Law             *
Enforcement Officer with the           *
Newcastle Police Department;           *
Newcastle Police Department; City of *
Newcastle, Wyoming; John Does          *
1 through 5,                           *
                                       *
       Defendants.                     *



                                      -3-
                                   ___________

                             Submitted: May 15, 2003

                                  Filed: August 21, 2003
                                   ___________

Before BOWMAN and BYE, Circuit Judges, and ERICKSEN,1 District Judge.
                           ___________

BOWMAN, Circuit Judge.

      Jeffrey D. Tarrell, Sheriff of Fall River County, South Dakota, and Brett
Jarman, Chief of Police of Edgemont, South Dakota (collectively "the officers"),
appeal the District Court's denial of their motions for summary judgment on the basis
of qualified immunity2 in a 42 U.S.C. § 1983 (2000) suit for damages filed against
them by Sybil Hernandez, the administrator of the estate of her son, Albert James Six
Feathers. We reverse.

                                         I.

      This suit arose out of a high-speed police chase through parts of Wyoming and
South Dakota that ended with the fatal shooting of Six Feathers by Brett Jarman. At
around 3:00 a.m. on December 10, 1999, in New Castle, Wyoming, Six Feathers was
observed driving erratically by Robert Fazendin, a New Castle police officer.
Because Fazendin suspected Six Feathers was intoxicated, he attempted to stop Six

      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota, sitting by designation.
      2
       This interlocutory appeal is properly before us because Tarrell and Jarman are
appealing the denial of summary judgment motions in which each asserted a qualified
immunity defense. See McCaslin v. Wilkins, 183 F.3d 775, 778 (8th Cir. 1999).

                                        -4-
Feathers by turning on his overhead lights. In response, Six Feathers sped up and fled
south on Highway 85. Fazendin pursued Six Feathers for forty-five miles at speeds
reaching one hundred miles per hour. When it became apparent that Six Feathers was
heading to South Dakota, Fazendin told his dispatcher to contact South Dakota law
enforcement officials to notify them of the pursuit, and to request that a set of road
spikes be deployed to stop Six Feathers's vehicle. This message was relayed to
Tarrell, Brett Jarman, and Martha Jarman, a deputy with the Fall River County
Sheriff's Department. Brett Jarman and Martha Jarman, each in his and her respective
patrol car, joined the pursuit near Edgemont. Shortly thereafter, Tarrell joined the
chase. A South Dakota Highway Patrol airplane flown by Glen Miller monitored the
pursuit.

       Around Edgemont, Six Feathers successfully evaded several roadblocks,
including a rolling roadblock in which the officers attempted to box Six Feathers's car
in on three sides. During this attempted stop of Six Feathers, Brett Jarman's car
apparently became disabled, and he ended up riding with Tarrell. At approximately
this same time, Fazendin, who was now out of his jurisdiction, stopped his pursuit,
but he continued to follow the chase until he could determine his location. Martha
Jarman also fell behind when her car spun out after it collided with Six Feathers's
vehicle. Tarrell and Brett Jarman continued the high-speed chase with Martha Jarman
and Fazendin following some distance behind.

       Near Ardmore, South Dakota, Six Feathers turned his car at a section line road
and then off the road and down a hill into a pasture. Due to the rough nature of the
terrain and warnings from Miller, Tarrell slowed down. Six Feathers continued ahead
for a short distance but then turned his vehicle around and came back on the same
path in the opposite direction. After seeing Six Feathers turn his car around, Brett
Jarman told Tarrell to stop his car. As Tarrell slowed down, Brett Jarman grabbed
Tarrell's shotgun and jumped out of the patrol car. Within seconds after Brett
Jarman's exit, Six Feathers ran head-on into Tarrell's vehicle. Brett Jarman fired four

                                         -5-
shots at Six Feathers, but, as the District Court noted, it is unclear whether the shots
were fired "before, during, or after the collision." Mem. Op. and Order at 5 (July 31,
2002). Six Feathers died at the scene.

      The District Court denied the summary judgment motions of Brett Jarman and
Tarrell.3 Subsequently, based on the motions of Tarrell and Brett Jarman, the District
Court issued an order of clarification because it believed its prior order did not
adequately discuss the reasons for denying Tarrell and Jarman qualified immunity.
See Mem. of Clarification at 2 (Oct. 7, 2002).

                                           II.

       We review a district court's denial of summary judgment on the basis of
qualified immunity de novo. McCaslin v. Wilkins, 183 F.3d 775, 778 (8th Cir. 1999).
In so doing, we consider whether, viewed in the light most favorable to the
nonmoving party, the facts alleged show a violation of a clearly established
constitutional right. Seiner v. Drenon, 304 F.3d 810, 812 (8th Cir. 2002).

       In this case, if Hernandez's allegations fail to establish a violation of a clearly
established constitutional right, Jarman and Tarrell will be entitled to qualified
immunity for their actions. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (holding
that in excessive force cases, the threshold question for the court is whether the
officer's conduct violated a clearly established constitutional right). We analyze
Hernandez's claims that the officers used excessive force during their seizure of Six
Feathers "under the Fourth Amendment and its 'objective reasonableness' standard."
Seiner, 304 F.3d at 812; Cole v. Bone, 993 F.2d 1328, 1332–33 (8th Cir. 1993)


      3
       The District Court granted summary judgment in favor of Martha Jarman,
Fazendin, and several other defendants not involved in this appeal. Mem. Op. and
Order at 15–16.

                                           -6-
(holding a Fourth Amendment seizure occurs when an officer fatally shoots a fleeing
suspect). In determining whether this use of force in seizing Six Feathers was
objectively reasonable, we consider the facts and circumstances of the case, including
the crime's severity, whether Six Feathers posed an immediate threat to the safety of
the officers or others, and whether he actively resisted arrest or fled. See Seiner, 304
F.3d at 812. Moreover, in making this determination, we consider only whether the
seizure itself, not preseizure conduct, was unreasonable. Id.

       An officer may use deadly force if "the officer has probable cause to believe
that the suspect poses a significant threat of death or serious physical injury to the
officer or others." Id. (quoting Tennessee v. Garner, 471 U.S. 1, 3 (1985)); see also
Sinclair v. City of Des Moines, Iowa, 268 F.3d 594, 596 (8th Cir. 2001). "The
'reasonableness' of a particular use of force must be judged from the perspective of
a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."
Graham, 490 U.S. at 396. This "'reasonableness' inquiry" concerns only whether "the
officers' actions are 'objectively reasonable' in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation. An
officer's evil intentions will not make a Fourth Amendment violation out of an
objectively reasonable use of force . . . ." Id. at 397 (internal citation omitted).

      As we have repeatedly held, in opposing a motion for summary judgment, a
nonmoving party may not rely on mere denials or allegations in its pleadings, but
must designate specific facts showing that there is a genuine issue for trial. See, e.g.,
Brandt v. Davis, 191 F.3d 887, 891 (8th Cir. 1999) (affirming grant of summary
judgment in favor of defendants in an excessive force case because plaintiff failed to
submit any evidence contradicting defendants' version of the incident). While we are
mindful that this case is somewhat unusual in that Tarrell and Jarman are the only
surviving witnesses, that does not relieve Hernandez of her burden of showing that
material facts are in dispute.



                                          -7-
       We turn first to consider whether the District Court erred in denying Tarrell's
motion for summary judgment on the basis of qualified immunity. The District Court
denied Tarrell's motion because it believed the record indicated that "Tarrell was
potentially a direct participant in the seizure of Six Feathers" and that "material
questions of fact exist relating to Tarrell's knowledge of Jarman's intentions" and
whether Tarrell authorized the use of deadly force by Jarman. Mem. of Clarification
at 4. In particular, the District Court found that Tarrell may have been involved in the
seizure of Six Feathers because of Six Feathers's collision with Tarrell's vehicle and
because Jarman shot Six Feathers with Tarrell's shotgun.

        We reject the District Court's conclusion that the collision between Six
Feathers's car and Tarrell's car could establish Tarrell's participation in the seizure of
Six Feathers. The Supreme Court has held that a Fourth Amendment seizure does not
occur where a "'pursuing police car sought to stop the suspect only by the show of
authority represented by flashing lights and continuing pursuit,' but accidentally
stopped the suspect by crashing into him." County of Sacramento v. Lewis, 523 U.S.
833, 844 (1998) (quoting Brower v. County of Inyo, 489 U.S. 593, 597 (1989)). In
this case, unlike in Lewis, Six Feathers intentionally caused the collision by driving
his car head-on into Tarrell's car. Hernandez does not offer any evidence to dispute
this claim. Instead, she speculates about what might have caused this collision,
including the possibility that Six Feathers felt trapped. See Br. of Appellee at 17. For
purposes of whether a Fourth Amendment seizure occurred during this collision, it
is irrelevant what Six Feathers might have been thinking (although we find nothing
remarkable about the proposition that the Six Feathers may have felt trapped; after
all, Tarrell and Jarman were attempting to end this highly dangerous and lengthy
pursuit). As we have held, a Fourth Amendment seizure occurs as a result of a car
collision only where the police officer intended the collision to be the result. Roach
v. City of Fredericktown, Mo., 882 F.2d 294, 296 (8th Cir. 1989). Tarrell's
undisputed testimony was that he attempted to avoid the collision by backing up. See
Dep. of Jeffrey Tarrell at 147. In addition, an aerial photograph of the scene shows

                                           -8-
that Six Feathers actually drove a short distance away after the collision. Based on
these facts, we find, as a matter of law, that no seizure occurred from Six Feathers's
collision with Tarrell's vehicle and therefore there is no basis for denying Tarrell
qualified immunity on this ground.

       We also conclude that Tarrell did not deprive Six Feathers of any clearly
established constitutional right when Jarman fatally shot Six Feathers with Tarrell's
shotgun. Again, the undisputed testimony of Tarrell was that he did not see Jarman
handle the shotgun during the pursuit and that Tarrell had no idea what Jarman was
going to do when he told Tarrell to stop his car. Id. at 97, 121. The shooting of Six
Feathers by Jarman happened as Six Feathers was crashing head-on into Tarrell's car
as Tarrell attempted to avoid the collision. Id. at 148. There is simply no evidence
in the record to support the District Court's finding that questions of fact exist as to
whether Tarrell knew of or authorized Jarman's use of deadly force to seize Six
Feathers.

       With respect to Brett Jarman, the District Court denied his motion for summary
judgment because it found that "[w]hile the use of deadly force may have been
justified, genuine questions of material fact concerning what actually took place in
the pasture area remain." Mem. of Clarification at 5. Specifically, the District Court
thought that the disputed facts included Six Feathers's ability to operate his car after
the collision with Tarrell's vehicle, Six Feathers's intentions after the collision, and
the sequence of the four shots fired by Jarman. Id.

      As we have stated, Jarman's use of deadly force is permissible if he had
probable cause to believe that Six Feathers posed a significant threat of death or
serious physical injury to Jarman, Tarrell, or others. See Seiner, 304 F.3d at 812. We
view the reasonableness of Jarman's use of deadly force from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight. See
Graham, 490 U.S. at 396.

                                          -9-
       The undisputed facts in this case demonstrate that Six Feathers continually
eluded the officers and took them on a lengthy and highly dangerous chase. Near the
end of the pursuit, Six Feathers intentionally drove his car directly into Tarrell's
vehicle. Jarman testified that it was his belief that Six Feathers was an "immediate
threat." Dep. of Brett Jarman at 178. Jarman further testified that, after the collision,
he believed Six Feathers, as he was backing up and turning his car in Jarman's
direction, intended to run him over. Id. at 179. Based on these undisputed facts, we
hold that Jarman's use of deadly force was objectively reasonable under the
circumstances as Jarman knew them to be at that time. See Cole, 993 F.3d at 1333
(holding officer's decision to use deadly force to stop truck driver was not objectively
unreasonable because officer believed driver posed an imminent threat of serious
physical harm to the officers in the pursuit as well as other innocent motorists).

       In denying Jarman's motion, the District Court stated that there was a dispute
about whether Six Feathers was able to continue to operate the vehicle after the
collision with Tarrell's car. As noted, however, the record demonstrates that Six
Feathers continued to drive his car after the collision. In addition, the District Court
denied summary judgment for Jarman because it found that factual disputes existed
as to Six Feathers's "intentions" after the collision. The District Court erred in
denying Jarman's motion for qualified immunity on this ground. The reasonableness
of Jarman's use of deadly force is judged from the perspective of a reasonable officer
on the scene, see Graham, 490 U.S. at 397, and not from the unknowable intentions
of the victim. In short, Six Feathers's actual intent is irrelevant. Instead, our inquiry
concerns what a reasonable officer could conclude Six Feathers's intentions were at
that moment. Jarman testified that he believed Six Feathers intended to run him over
with his car. Given that Jarman had just witnessed Six Feathers ram Tarrell's car with
his vehicle, we conclude it was reasonable for Jarman to believe that the use of deadly
force was necessary to protect Tarrell and himself from harm. See Saucier, 533 U.S.
at 205 (noting that "[i]f an officer reasonably, but mistakenly, believed that a suspect



                                          -10-
was likely to fight back, for instance, the officer would be justified in using more
force than in fact was needed").

       Finally, the District Court denied Jarman's motion because it found there was
an alleged dispute about the sequence of shots fired. According to Jarman, he fired
two shots at Six Feathers as Six Feathers drove into Tarrell's vehicle and another two
shots as Six Feathers backed up and started to drive towards him. See Dep. of Brett
Jarman at 178–180. Even if we were to accept that there are discrepancies in the
accounts of Jarman, Tarrell, and the version of the shooting Jarman gave to Fazendin
when he arrived on the scene, we do not think that is relevant to the inquiry at hand,
which is whether Jarman's use of deadly force was objectively reasonable under the
circumstances as Jarman perceived them. Even if we assumed, as Hernandez implies,
that Jarman fired all four shots after Six Feathers collided with Tarrell's vehicle, see
Br. of Appellee at 25, we would still conclude that Jarman's conduct was objectively
reasonable because he had probable cause to believe Six Feathers posed an imminent
threat of serious physical harm to himself and to others as evidenced by Six Feathers
driving head-on into Tarrell's vehicle. See Garner, 471 U.S. at 11 (noting that "if the
suspect threatens the officer with a weapon or there is probable cause to believe that
he has committed a crime involving the infliction of serious physical harm, deadly
force may be used if necessary to prevent escape"). Accordingly, Jarman is entitled
to qualified immunity for his conduct because the facts as alleged by Hernandez fail
to state a violation of Six Feathers's clearly established constitutional rights.

                                          III.

       For the reasons stated, we reverse the judgment of the District Court denying
qualified immunity to Tarrell and to Brett Jarman.




                                         -11-
A true copy.

      Attest:

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




                          -12-
