Lori Braun v. Brian Burke ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-2961
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Lori Braun, As Administratrix of the Estate of Cassandra Braun, deceased,
Individually and on Behalf of all Wrongful Death Beneficiaries of, Cassandra
Braun
Plaintiff - Appellant
v.
Brian Ray Burke, Trooper, Individually as an Officer of the Arkansas State Police;
Bill Bryant, Colonel, Individually as the Chief Executive Officer of the Arkansas
State Police
Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 22, 2020
Filed: December 23, 2020
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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
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GRUENDER, Circuit Judge.
The high-speed police pursuit of a speeding vehicle tragically ended with a
car crash killing Cassandra Braun. Her mother (and estate administrator), Appellant
Lori Braun (“Braun”), brought this case, alleging constitutional violations against
the officer involved in the accident (Appellee Arkansas State Police Trooper Brian
Burke) and his supervisor (Appellee Director of Arkansas State Police Bill Bryant).
The district court1 granted summary judgment for the Appellees on all claims. For
the following reasons, we affirm.
I.
On the night of October 10, 2016, Trooper Burke was working a hit-and-run
accident in a parking lot along Highway 70. While there, he saw a dark-colored
sport utility vehicle (“SUV”), with flashing hazard lights, speed past. Trooper Burke
estimated the SUV was traveling at ninety to ninety-five miles per hour in a fifty-
five mile-per-hour zone. Less than two minutes later, Trooper Burke wrapped up
the hit-and-run investigation, got into his police cruiser, and turned onto Highway
70 to pursue the SUV.
Although Trooper Burke initially activated his emergency lights and sirens,
he turned them off roughly twenty seconds later. During the pursuit, his speed
averaged over ninety miles per hour, peaking at more than 110 miles per hour. In a
later affidavit, Trooper Burke stated that he believed the SUV “posed a serious risk
to the motoring public, thus creating a dangerous situation.” “Believing that there
was an emergently dangerous situation, [he] decided to try and stop the vehicle in
order to end the risk to the public.”
As Trooper Burke headed east on Highway 70 searching for the SUV,
Cassandra Braun was a passenger in a car driving west on the same highway.
Roughly eight miles from where Trooper Burke started, Cassandra Braun’s car
turned left, entering Burke’s lane. Although Trooper Burke tried to stop his car, he
was unable. The resulting crash killed Cassandra Braun and seriously injured
Trooper Burke.
1
The Honorable Billy Roy Wilson, United States District Judge for the Eastern
District of Arkansas.
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Braun brought this case under 42 U.S.C. § 1983, arguing Trooper Burke
violated Cassandra Braun’s substantive due process right to life under the Fourteenth
Amendment. Braun further claimed that Director Bryant violated Cassandra
Braun’s rights by failing to properly train, supervise, or discipline Trooper Burke.
The district court granted summary judgment for Appellees on all claims, finding no
constitutional violations. Braun appeals.
II.
We review the district court’s grant of summary judgment de novo, viewing
the record in the light most favorable to, and drawing all reasonable inferences for,
the nonmovant. Jones v. Frost, 770 F.3d 1183, 1185 (8th Cir. 2014). “Summary
judgment is proper when there is no genuine dispute of material fact and the
prevailing party is entitled to judgment as a matter of law.” Id.To establish a substantive due process violation under the Fourteenth
Amendment, Braun must show that Trooper Burke’s conduct was “so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.” See
Terrell v. Larson, 396 F.3d 975, 978 (8th Cir. 2005) (en banc).2 In evaluating her
substantive due process claim, we first must determine what level of culpability
Braun must prove to demonstrate Burke’s behavior was conscience shocking. See
id. Negligence is never enough. Id. Deliberate indifference makes sense “only
when actual deliberation is practical.” Id. (quoting Cty. of Sacramento v. Lewis, 523
U.S. 833, 851 (1998)). But, typically—and especially in “rapidly evolving, fluid,
and dangerous situations”—the plaintiff must show an intent to harm. Id. Here,
Braun argues we should apply the deliberate indifference standard and implicitly
concedes she cannot satisfy a higher standard. Conversely, Appellees argue we
should require an intent to harm.
2
Braun must also show the conduct violated a fundamental right, but we need
not address that part of the inquiry here. See Terrell, 396 F.3d at 978 n.1.
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In Lewis, the Supreme Court held that the intent-to-harm standard applies
when an officer is engaged in a high-speed chase of a suspect. 523 U.S. at 854.
Expounding on this principle in Terrell, we extended the intent-to-harm standard “to
an officer’s decision to engage in high-speed driving in response to other types of
emergencies.” 396 F.3d at 979. Whether an officer was responding to an
“emergency” is a subjective, not objective, inquiry. Id. at 980. Accordingly, we will
accept an officer’s statement that he believed he was responding to an emergency
unless it is “so preposterous as to reflect bad faith.” Sitzes v. City of W. Memphis,
606 F.3d 461, 469 (8th Cir. 2010).
Here, Trooper Burke was pursuing an SUV traveling at night at a high speed
with its hazard lights flashing. He estimated the SUV was traveling nearly 100 miles
per hour, almost twice the fifty-five mile-per-hour speed limit. Crucially, Trooper
Burke’s affidavit states that he believed this was an “emergently dangerous”
situation that “posed a serious risk to the motoring public.” The affidavit further
states that Trooper Burke believed his pursuit was necessary to end this dangerous
situation. He thus believed he was responding to an emergency, triggering the intent-
to-harm standard.
Braun’s contrary arguments miss the mark. First, pointing to Terrell and
Sitzes, she seems to suggest that our prior decisions extend the intent-to-harm
standard only to situations where officers respond to an emergency call, not
(presumably) emergencies officers witness themselves. Not so. Although the
officers in Terrell, 396 F.3d at 977, and Sitzes, 606 F.3d at 464, were responding to
emergency calls, we never suggested the way an officer learns of an emergency is
crucial. Rather, and as the Supreme Court has explained, the determining factor is
the unavailability of “actual deliberation.” See Lewis, 523 U.S. at 851. This might
be present when an officer responds to an emergency call or when, as here, an officer
witnesses an emergency firsthand.
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Second, Braun asks us to reject as preposterous Trooper Burke’s belief that
the speeding SUV constituted an emergency because he finished his hit-and-run
investigation and “saunter[ed]” to his car before pursuing the SUV. For one, Braun
overstates the delay. Trooper Burke pursued the SUV less than two minutes after it
raced past. Cf. Terrell, 396 F.3d at 977, 980 (applying the intent-to-harm standard
to officers who received an emergency call while eating dinner, were ten miles from
the emergency, and were twice told they were not needed). Regardless, we rejected
this precise argument in Sitzes. 606 F.3d at 468 (“[T]he amount of time [an officer]
had to deliberate on his actions is not, by itself, sufficient to render the intent-to-
harm standard inapplicable.”). Braun also claims that Trooper Burke’s failure to use
his emergency lights or siren for most of the pursuit shows he did not really believe
this was an emergency. But, again, Braun’s argument runs headlong into Sitzes.
There, we held that an officer’s failure to activate emergency lights or siren, while
“arguably incompatible with a belief that he was responding to an emergency,” was
insufficient to overcome the officer’s contrary affidavit. 606 F.3d at 469. So too
here.
Indeed, our decision in Sitzes is generally instructive. There, an officer
learned from a police dispatcher that someone had been assaulted and robbed of $55
in a Wal-Mart parking lot. Id. at 464. The officer responded (even though another
officer was already en route), driving at speeds of at least eighty miles per hour in a
thirty mile-per-hour zone on the wrong side of the road. Id. We seriously doubted
the parking lot heist constituted an actual emergency. Id. at 469. Still, we held that
the officer’s affidavit stating he believed he was responding to an emergency was
not so preposterous as to reflect bad faith. Id. Even more so here, where the officer
was facing an active threat to public safety, we are unwilling to find Trooper Burke’s
belief preposterous.
Finally, Braun insists that speeding does not constitute an actual emergency.
This argument goes nowhere. Again, the emergency inquiry is a subjective, not
objective, one.
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In sum, Trooper Burke believed he was responding to an emergency, and thus
we apply the intent-to-harm standard. This resolves Braun’s claim against him, as
she does not even argue, much less present any evidence, that he intended to harm
anyone. Therefore, the district court correctly granted summary judgment for
Trooper Burke on Braun’s substantive due process claim because she failed to
establish a constitutional violation.
Consequently, the district court also rightly granted summary judgment for
Director Bryant. Braun’s failure-to-train-or-supervise claim against Director Bryant
requires an underlying constitutional violation. White v. Jackson, 865 F.3d 1064,
1076 (8th Cir. 2017); Brockinton v. City of Sherwood, 503 F.3d 667, 673 (8th Cir.
2007). Because Braun’s claim against Trooper Burke fails, so does her claim against
Director Bryant.
For the foregoing reasons, we affirm.
COLLOTON, Circuit Judge, concurring.
I join the opinion of the court and submit these observations regarding the
separate concurring opinion that follows.
In Terrell v. Larson, 396 F.3d 975 (8th Cir. 2005) (en banc), this court held
that in determining the requisite level of culpability to prove a substantive due
process claim against a law enforcement officer, there is no legally significant
distinction between high-speed driving in pursuit of a suspect and high-speed driving
in response to other types of emergencies. Id. at 978-979. The court rejected the
use of an objective standard to determine whether a particular situation constitutes
an emergency that triggers the “intent-to-harm” standard of fault that applies to high-
speed pursuits under County of Sacramento v. Lewis, 523 U.S. 833 (1998). Because
“substantive due process liability is grounded on a government official’s subjective
intent, and because the intent-to-harm standard applies ‘when unforeseen
circumstances demand an officer’s instant judgment’ and ‘decisions have to be made
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in haste, under pressure, and frequently without the luxury of a second chance,’” the
court ruled that “this issue turns on whether the deputies subjectively believed that
they were responding to an emergency.” Id. at 980 (quoting Lewis, 523 U.S. at 853).
The “intent-to-harm” standard thus applies to a substantive due process claim both
when an officer believes that he is pursuing a suspect and when an officer believes
that he is responding to another type of emergency. The suggestion of the
concurrence, post, at 8, that there is a “legally significant” distinction between the
two types of cases runs counter to Terrell.
More significantly, the concurrence asserts that our decision in this case
“helps illustrate a growing circuit split” on the level of culpability required to
establish a substantive due process claim. Post, at 9. The suggested conflict in
authority, however, is illusory. In Dean v. McKinney, 976 F.3d 407 (4th Cir. 2020),
the defendant officer acknowledged that an “emergency” call had been cancelled,
and stated affirmatively that he was “backing down” to a non-emergency response.
Id. at 415-16. At a minimum, there was a factual dispute about whether the officer
believed in good faith that he was responding to an emergency. In Sauers v. Borough
of Nesquehoning, 905 F.3d 711 (3d Cir. 2018), which involved a motion to dismiss
a complaint, the officer allegedly observed only a “summary” or “minor” traffic
offense, and then pursued the violator at over 100 miles per hour. Id. at 715-16. The
complaint alleged that there was no emergency, and there was no allegation that the
officer believed he was responding to an emergency. Id. at 718. Neither of the cited
cases, therefore, applied a “deliberate indifference” standard of fault in a case where
it was undisputed that the officer believed he was responding to an emergency.
As for whether the outcome in this appeal “seems unjust,” post, at 8, it is
important to bear in mind the limited issue before this court. This case concerns
only whether the plaintiff’s evidence is sufficient to establish liability for a
constitutional tort under the concept of substantive due process. We do not address
whether the state trooper’s actions were prudent as a matter of policy or whether
such an officer should be liable for harm caused by reckless driving under traditional
state tort law. The State of Arkansas is free to create a system of tort liability for
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law enforcement officers that could encompass the conduct at issue here, but the
Fourteenth Amendment is not “a font of tort law to be superimposed upon whatever
systems may already be administered by the States.” Paul v. Davis, 424 U.S. 693,
701 (1976).
GRASZ, Circuit Judge, concurring.
I concur with the court’s opinion. Precedent requires it. But if the outcome
also seems unjust, I can understand why. Two people tragically died after a state
trooper sped and endangered the public in order to try to locate a car previously seen
speeding.
I write separately to address two points. One is a point of factual emphasis
and the other is simply an observation related to the need for clarity in the interest
of public understanding as well as the preservation of respect for the rule of law.
First the point of factual emphasis. This is not a case involving a high-speed
pursuit of a fleeing suspect. Cf. Helseth v. Burch, 258 F.3d 867, 871 (8th Cir. 2001)
(en banc) (“We hold that the intent-to-harm standard of [County of Sacramento v.
Lewis, 523 U.S. 833, 847–49 (1998)] 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.”). The facts, when
viewed in the light most favorable to Braun, show that this was instead a hunt for a
suspect whose whereabouts were unclear. That distinction is legally significant. It
matters because when an officer is not in pursuit of a fleeing suspect, our precedent
requires the district court to engage in an additional step: determining whether the
officer subjectively believed he was responding to an “emergency.” See Terrell v.
Larson, 396 F.3d 975, 980 (8th Cir. 2005) (en banc) (“Under Lewis, the intent-to-
harm culpability standard applies if they believed they were responding to an
emergency call.”). While that difference is important for future cases, the result here
is the same. That is because no facts were presented to create a triable fact on the
trooper’s subjective belief under Sitzes v. City of West Memphis. See Sitzes, 606
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F.3d 461, 469–70 (8th Cir. 2010) (“We do not understand this case to establish a per
se rule that an officer’s self-serving affidavit will always insulate that officer from
substantive due process liability.”). As a consequence, in this case we must accept
the trooper’s affidavit stating he believed there was an emergency that required him,
after concluding his work at the scene of a hit and run accident, to drive ninety-eight
miles per hour on a public highway without emergency lights or sirens to try to locate
a car he had earlier seen . . . speeding.
Now to the observation. This case helps illustrate a growing circuit split on
when and how to apply the requisite level of culpability under County of Sacramento
v. Lewis, 523 U.S. 833, 847–49 (1998). Compare Dean v. McKinney, 976 F.3d 407,
414–16 (4th Cir. 2020) (en banc) (looking at objective facts beyond the officer’s
subjective arguments to decide that deliberate indifference applied), and Sauers v.
Borough of Nesquehoning, 905 F.3d 711, 715, 717–18 (3d Cir. 2018) (deciding that
deliberate indifference applied after using objective factors to determine that no
emergency existed), with Bingue v. Prunchak, 512 F.3d 1169 1176–78 (9th Cir.
2008) (applying an intent-to-harm standard), and Terrell, 396 F.3d at 980 (“[T]his
issue turns on whether the deputies subjectively believed that they were responding
to an emergency.”). A uniform standard, or at least more clarity on when each
standard applies, would advance respect for the rule of law in this area. This is
especially true when, as here, there was time to deliberate before engaging in the
high-speed driving that caused the accident and it was not a situation where the
circumstances demanded an officer’s instant judgment or a decision under pressure.
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