Beshers v. Harrison

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 05-17096 AUGUST 14, 2007

________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 04-00054-CV-WCO-2

JASON BESHERS,

Individually and as administrator of the

Estate of David Beshers,

Plaintiff-Appellant,

versus

SCOTT PATRICK HARRISON,

JOHN WHITWORTH, MATT RAMEY,

LINDA MARIE ADDIS, Individually

and in their official capacities as employees

of the City of Toccoa, Georgia Police

Department, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(August 14, 2007)

Before BIRCH and BLACK, Circuit Judges, and PRESNELL,* District Judge.

BLACK, Circuit Judge:

*

Honorable Gregory A. Presnell, United States District Judge for the Middle District of

Florida, sitting by designation.

In this appeal, we consider whether Officer Scott Harrison, who allegedly

terminated a high-speed chase by causing David Beshers’ vehicle to crash, violated

Beshers’ Fourth Amendment right to be free from unreasonable seizures. We

affirm the district court’s grant of summary judgment, having determined that no

constitutional violation occurred.

I. BACKGROUND 1

On the afternoon of April 20, 2002, the City of Toccoa Police received a

report from Bev’s Quick Stop that a customer (later identified as Beshers) tried to

steal beer after the clerk refused to sell it to him. The customer appeared to be

intoxicated and had already been in the store a number of times that day to

purchase alcohol. Officer Scott Harrison responded to Bev’s Quick Stop and

viewed video surveillance of the suspect’s truck. Shortly after leaving Bev’s,

Harrison noticed a truck matching the description of the suspect vehicle at a nearby

gas station. Harrison watched the truck turn out of the gas station and run a stop

sign as it entered Highway 17-A, a busy four-lane road with shopping centers, fast

food restaurants, Wal-Mart, and an occasional hotel on either side. Harrison

1

We are required to view all facts and draw all reasonable inferences in favor of the

non-moving party when reviewing a grant of summary judgment. Brosseau v. Haugen, 543 U.S.

194, 195 n.2, 125 S. Ct. 596, 597 n.2 (2004). The Supreme Court recognized in Scott v. Harris,

127 S. Ct. 1769, 1775 (2007), that this typically means adopting the plaintiff’s version of facts in

a qualified immunity case. Nonetheless, in this case, as in Harris, we have the benefit of

viewing two videotapes from the patrol cars involved in the pursuit. Thus, to the extent

Appellant’s version of the facts is clearly contradicted by the videotapes, such that no reasonable

jury could believe it, we do not adopt his factual allegations. Id.

2

activated his emergency lights, triggering his video equipment to record, and began

to follow the car.

After proceeding a few hundred yards, Beshers pulled into a shopping center

and stopped just long enough to let a passenger out of his car. He then drove out of

the parking lot and proceeded south on Highway 17-A. Harrison turned on his

sirens, called the truck’s license plate into dispatch, and reported that the suspect

vehicle was not stopping. Both vehicles accelerated to 55 miles per hour (mph) in

the 45 mph zone. As Beshers fled, he wove through traffic, occasionally

straddling both southbound lanes.

Corporal Matt Ramey and Officer Linda Addis, were traveling northbound

on Highway 17-A when they heard the radio report. According to Addis, Ramey

ordered her to perform a roadblock by driving the police vehicle directly in the

path of Beshers’ oncoming truck. Beshers swerved to avoid the roadblock,

crossing the center line and driving into oncoming traffic. Beshers then returned to

his proper lane and continued driving south on Highway 17-A. About this same

time, Officer John Whitworth joined the pursuit.

Beshers proceeded down Highway 17-A, followed in line by Harrison,

Whitworth, and Addis and Ramey. Beshers continued to weave through traffic and

force numerous motorists to the side of the road. As he approached the

intersection of Highway 17-A and Rose Lane, his lane of travel was blocked by a

3

car stopped at a red light. To avoid stopping, Beshers drove onto the right shoulder

of Highway 17-A. As he pulled alongside the car, the driver–Francis Lyon–turned

right onto Rose Lane. The two cars collided. Beshers turned right and accelerated

down Rose Lane.

After the collision, Whitworth took the lead pursuit position. Beshers soon

turned onto Georgia Highway 145, a narrow, winding two-lane country road with

homes on both sides. At this point, Harrison passed Whitworth to regain the lead

pursuit position. Beshers continued to improperly pass vehicles by crossing the

double center line. He also drove on the wrong side of the road and forced

motorists to pull to the side of the road. In this stretch alone, Beshers crossed the

center double line at least six times, while maintaining speeds between 55 and 65

mph. After multiple attempts, Harrison passed Beshers. Harrison testified he

intended to encourage Beshers to slow down and to warn oncoming traffic.

Almost immediately, Beshers swerved into the northbound lane in an

apparent attempt to pass Harrison. Harrison blocked Beshers by swerving in front

of him, and Beshers’ truck rammed into the back of the police cruiser.2 Beshers

then swerved back to the southbound lane and Harrison followed. Beshers drove

2

Beshers’ son, Jason Beshers (Appellant), after viewing the videos, alleges the ramming

was accidental and occurred because Harrison slammed on his brakes after passing Beshers. We

cannot determine from the videotapes whether or not Harrison applied his brakes and caused the

ramming.

4

off the road and attempted to pass Harrison on the right shoulder. As Beshers came

around the front of the police cruiser and tried to return to the road, the front

passenger side of Harrison’s cruiser clipped the rear quarter of Beshers’ truck,

causing it to flip several times.3 Beshers died on impact. 4

On March 10, 2004, Beshers’ son, Jason Beshers (Appellant) filed suit under

42 U.S.C. § 1983 against the City of Toccoa (City), Toccoa Chief of Police Frank

Strickland, and Toccoa Officers Scott Harrison, John Whitworth, Matthew Ramey,

and Linda Addis (collectively Defendants), alleging, inter alia, a violation of his

Fourth Amendment right to be free from unreasonable searches and seizures.5 In

3

A review of the pursuit videotapes shows that a reasonable juror could conclude that

either (1) Harrison intentionally pushed Beshers off the side of the road and pressed the police

cruiser against the rear quarter of Beshers’ truck, or (2) the rear quarter of Beshers’ truck struck

the front passenger side of the police cruiser as Beshers tried to pass Harrison. At this stage in

the proceedings, we are compelled to view the facts and draw all reasonable inferences in the

light most favorable to Beshers. Brosseau v. Haugen, 543 U.S. 194, 195 n.2, 125 S. Ct. 596, 597

n.2 (2004). Therefore, we will assume Harrison intentionally caused the collision.

4

The inquiry in an excessive force case is “whether the officers’ actions are ‘objectively

reasonable’ in light of the facts and circumstances confronting them[.]” Graham v. Connor, 490

U.S. 386, 397, 109 S. Ct. 1865, 1872 (1989). Although not relevant to the inquiry, we note that

after the accident, the Georgia Highway Patrol Specialized Collision Report Team completed an

independent investigation of the crash. The report found that Beshers struck Harrison’s patrol

car multiple times and that Beshers was “highly intoxicated” at the time of the incident. The

Report concluded: “There is no evidence to suggest that there was any intentional act on behalf

of the Toccoa Police Officers involved, to do anything other than get an intoxicated driver off

the highway by utilizing accepted police methods of dealing with a driver who refuses to yield to

a uniformed officer in a marked patrol car.” The Report was attached to Defendants’ motion for

summary judgment. Additionally, the City of Toccoa and Chief of Police Strickland investigated

the incident and determined that none of the officers violated the Toccoa Standard Operating

Procedures.

5

Appellant also alleged a violation of Beshers’ Fourteenth Amendment right to due

process and a number of state law claims that are not before us on appeal.

5

response, Defendants filed a motion for summary judgment, claiming the individual

defendants were entitled to qualified immunity. They also argued Appellant could

not provide evidence to support a claim for supervisor or municipal liability.

On November 17, 2004, the district court granted the motion for summary

judgment as to all Defendants. First, the court determined there was no evidence

Officer Harrison intentionally caused his vehicle to collide with Beshers, so no

Fourth Amendment seizure occurred. In the alternative, the court concluded that

even if a constitutional violation occurred, Harrison would be entitled to qualified

immunity because there was no “clearly established” law that would have put

Harrison on notice that his conduct violated Beshers’ constitutional rights. See,

e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)

(holding that qualified immunity shields government officials from liability if their

acts do not violate “clearly established statutory or constitutional rights of which a

reasonable person would have known”). The district court explained that under the

then-controlling law of Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S. Ct. 1694,

1701 (1985), a police officer could use deadly force to seize a fleeing felony suspect

only when the officer (1)“ha[d] probable cause to believe that the suspect pose[d] a

threat of serious physical harm, either to the officer or others”; (2) reasonably

believed that the use of deadly force was necessary to prevent escape; and (3) gave

a warning, if feasible, about the possible use of deadly force. The court found

6

Harrison had probable cause to believe Beshers posed an immediate threat to others

because he was driving erratically, was suspected to be intoxicated, and had struck

another motorist with his vehicle. The court thus concluded it was not “obvious”

that Garner prohibited the use of deadly force to stop Beshers. The court further

found that Appellant failed to identify any “case that demonstrates a clearly

established rule prohibiting police officers from engaging in high-speed pursuits or

attempting to use a rolling roadblock to slow or stop a fleeing suspect who the

officers reasonably suspect poses a danger to others.” 6

On December 15, 2005, Jason Beshers timely appealed the district court’s

grant of summary judgment. After initial briefing and oral argument, the Supreme

Court issued Scott v. Harris, 127 S. Ct. 1769, 1774 (2007), which discusses the use

of deadly force during a high-speed police pursuit. After analyzing the impact of

Harris and carefully reviewing the record, we affirm the district court’s grant of

summary judgment and hold that Harrison did not violate Beshers’ Fourth

Amendment right to be free from excessive force during a seizure.7

6

The district court also granted summary judgment to the City of Toccoa, Chief of

Police Frank Strickland, Corporal Matt Ramey, and Officers John Whitworth and Linda Addis.

7

We further conclude the district court did not err by granting summary judgment to the

City of Toccoa, Chief of Police Frank Strickland, or Corporal Matt Ramey. We need not address

the Appellant’s claims of municipal or supervisory liability since we conclude no constitutional

violation occurred. See Rooney v. Watson, 101 F.3d 1378, 1381 n.2 (finding the plaintiffs could

not maintain a failure to train action against the county because the automobile accident did not

rise to a level of violating their constitutional rights); Vineyard v. County of Murray, 990 F.2d

1207, 1211 (11th Cir. 1993) (“Only when it is clear that a violation of specific rights has

7

II. DISCUSSION

Appellant argues, inter alia, the district court erred by granting summary

judgment in favor of Harrison after (1) finding Beshers was not subject to an

unlawful seizure in violation of the Fourth Amendment, and (2) determining that

even if a violation occurred, Officer Harrison was nonetheless entitled to qualified

immunity. We review the district court’s grant of summary judgment de novo,

resolving all genuine disputes of material fact in favor of Beshers. Skrtich v.

Thornton, 280 F.3d 1295, 1299 (11th Cir. 2002). Summary judgment is appropriate

“if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). Harrison’s entitlement to qualified immunity is a question of

law to be reviewed de novo. Cagle v. Sutherland, 334 F.3d 980, 985 (11th Cir.

2003).

Qualified immunity protects government officials performing discretionary

functions from individual liability as long as their conduct “does not violate clearly

established statutory or constitutional rights of which a reasonable person would

occurred can the question of § 1983 municipal liability for the injury arise.”); see also Campbell

v. Sikes, 169 F.3d 1353, 1374 (11th Cir. 1999) (stating that a claim for supervisory liability fails

where there is no underlying constitutional violation). Appellant did not appeal the court’s grant

of summary judgment to Officers John Whitworth or Linda Addis.

8

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738

(1982)). “The purpose of this immunity is to allow governmental officials to carry

out their discretionary duties without the fear of personal liability or harassing

litigation, protecting from suit all but the plainly incompetent or one who is

knowingly violating the federal law.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th

Cir. 2002) (internal quotation marks and citations omitted).

“In resolving questions of qualified immunity, courts are required to resolve a

‘threshold question: Taken in the light most favorable to the party asserting the

injury, do the facts alleged show the officer’s conduct violated a constitutional

right?’” Scott v. Harris, 127 S. Ct. 1769, 1774 (2007) (quoting Saucier v. Katz, 533

U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001)). “If, and only if, the court finds a

violation of a constitutional right,” does it ask whether the right was clearly

established at the time of the violation. Id. We thus turn to the threshold question

in this case: whether Officer Harrison violated Beshers’ Fourth Amendment rights.

The Fourth Amendment provides the right to be “free from the use of

excessive force in the course of an investigatory stop or other ‘seizure’ of the

person.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1248

(11th Cir. 2004); see also U.S. C ONST. amend. IV. To establish an excessive force

claim, the Appellant must first show Beshers was “seized” within the meaning of

the Fourth Amendment. See Vaughan v. Cox, 343 F.3d 1323, 1328 (11th Cir.

9

2003). A Fourth Amendment seizure occurs when “there is a governmental

termination of freedom of movement through means intentionally applied.”

Brower v. County of Inyo, 489 U.S. 593, 597, 109 S. Ct. 1378, 1381 (1989)

(emphasis in original).8 In Brower, the United States Supreme Court explained that

if a police cruiser pulls alongside a fleeing car and sideswipes it, thereby producing

a crash, a seizure occurs. Id. at 597, 109 S. Ct. at 1381. But if a suspect in a police

chase unexpectedly loses control of his car and crashes, no seizure occurs. Id. This

is because the crash was not caused “through means intentionally applied.” Id.

(emphasis in original); see also County of Sacramento v. Lewis, 523 U.S. 833, 844,

118 S. Ct. 1708, 1715 (1998) (“[N]o Fourth Amendment seizure would take place

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.”) (quoting Brower, 489 U.S. at 597, 109

S. Ct. at 1381).

Here, Officer Harrison maintains, and the district court agreed, there is no

evidence he intentionally caused his vehicle to collide with the decedent.

Nonetheless, viewing the evidence in the light most favorable to the Appellant, we

8

In Brower, the Court found the decedent was “seized” when the stolen car he was

driving crashed into a police roadblock. 489 U.S. at 599; 109 S. Ct. at 1383. The Court

reasoned: “it [is] enough for a seizure that a person be stopped by the very instrumentality set in

motion or put in place in order to achieve that result. . . . Brower was meant to be stopped

by . . . the roadblock–and . . . was so stopped.” Id. at 599, 109 S. Ct. at 1382.

10

conclude a reasonable juror could determine Harrison intentionally collided with

Beshers. Accordingly, for purposes of this appeal only, we operate under the

presumption that Harrison “seized” Beshers, as that term is defined under the

Fourth Amendment.

We must next decide whether the force used to effectuate the seizure was

reasonable. “[A] ‘[s]eizure’ alone is not enough for § 1983 liability; the seizure

must be ‘unreasonable.’” Brower, 489 U.S. at 599, 109 S. Ct. at 1382-83. “The

‘reasonableness’ inquiry in an excessive force case is an objective one: the question

is whether the officer’s actions are ‘objectively reasonable’ in light of the facts and

circumstances confronting him, without regard to his underlying intent or

motivation.” Kesinger, 381 F.3d at 1248 (citing Graham v. Connor, 490 U.S. 386,

397, 109 S. Ct. 1865, 1872 (1989)). “[T]o determine whether the amount of force

used by a police officer was proper, a court must ask whether a reasonable officer

would believe that this level of force is necessary in the situation at hand.” Ferraro,

284 F.3d at 1197 (internal quotation marks and citations omitted). The inquiry

should be viewed from the “perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight” and “must embody allowance for the fact

that police officers are often forced to make split-second judgments–in

circumstances that are tense, uncertain, and rapidly evolving–about the amount of

11

force that is necessary in a particular situation.” Connor, 490 U.S. at 396-97, 109 S.

Ct. at 1872.

As the district court noted, the Supreme Court found in Tennessee v. Garner

that, depending on the circumstances, the use of deadly force to prevent the escape

of a felony suspect may or may not be constitutionally reasonable. 471 U.S. at 11,

105 S. Ct. at 1701. The Court explained:

Where the suspect poses no immediate threat to the officer and no

threat to others, the harm resulting from failing to apprehend him does

not justify the use of deadly force to do so. . . . A police officer may

not seize an unarmed, nondangerous suspect [with deadly force]. . . .

. . . [But] [w]here the officer has probable cause to believe that

the suspect poses a threat of serious physical harm, either to the officer

or others, it is not constitutionally unreasonable to prevent escape by

using deadly force. Thus, 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 or threatened infliction of serious

physical harm, deadly force may be used if necessary to prevent

escape, and if, where feasible, some warning has been given.

Id. at 11-12, 105 S. Ct. at 1701; see also Brosseau v. Haugen, 543 U.S. 194, 197-

98, 125 S. Ct. 596, 598 (2004). After Garner, we required three preconditions for

the use of deadly force. An officer must: “‘(1) ha[ve] probable cause to believe that

the suspect poses a threat of serious physical harm, either to the officer or to others’

or ‘that he has committed a crime involving the infliction or threatened infliction of

serious physical harm;’ (2) reasonably believe[] that the use of deadly force [is]

necessary to prevent escape; and (3) ha[ve] given some warning about the possible

12

use of deadly force, if feasible.” Cox, 343 F.3d at 1329-30 (quoting Garner, 471

U.S. at 11-12, 105 S. Ct. at 1701) (emphasis in original).

Recently, however, in Scott v. Harris, the Supreme Court limited Garner’s

applicability. 127 S. Ct. 1769 (2007). The Court noted that in Garner, they applied

the Fourth Amendment’s reasonableness test to a police officer shooting a “young,

slight, and unarmed burglary suspect . . . in the back of the head while he was

running away on foot.” Harris, 127 S. Ct. at 1777 (quoting Garner, 471 U.S. at 4,

21, 105 S. Ct. at 1698, 1706) (internal quotation marks omitted). The Court found

that “[w]hatever Garner said about the factors that might have justified shooting the

suspect in that case, such ‘preconditions’ have scant applicability” to the

reasonableness of the use of deadly force in a high-speed car chase terminated by an

intentional collision. Harris, 127 S. Ct. at 1777 (emphasis in original). “A police

car’s bumping a fleeing car is, in fact, not much like a policeman’s shooting a gun

so as to hit a person[,] [n]or is the threat posed by the flight on foot of an unarmed

suspect even remotely comparable to the extreme danger to human life posed by

respondent in this case.” Id. (internal quotation marks and citations omitted)

(referring to a fleeing motorist driving at high speeds in an effort to elude police).

The Court emphasized that “[w]hether or not [the Officer’s] actions constituted

application of ‘deadly force,’ all that matters is whether [the Officer’s] actions were

reasonable.” Id. at 1778.

13

The Harris Court reiterated that in determining the reasonableness of a

seizure it “must balance the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the importance of the governmental interests

alleged to justify the intrusion.” Id. (quoting United States v. Place, 462 U.S. 696,

703, 103 S. Ct. 2637, 2642 (1983)). Thus, in a ramming case, the risk of bodily

harm the officer’s actions pose to the suspect must be weighed against the

governmental interests of ensuring public safety and eliminating the threat caused

by a fleeing suspect. Id. After considering how a court “weigh[s] the perhaps

lesser probability of injuring or killing numerous bystanders against the perhaps

larger probability of injuring or killing a single person[,]” the Court stated:

We think it appropriate in this process to take into account not only the

number of lives at risk, but also their relative culpability. It was [the

suspect], after all, who intentionally placed himself and the public in

danger by unlawfully engaging in the reckless, high speed flight that

ultimately produced the choice between two evils that [the officer]

confronted. Multiple police cars, with blue lights flashing and sirens

blaring, had been chasing [the suspect] for nearly ten miles, but he

ignored their warning to stop. By contrast, those who might have been

harmed had [the officer] not taken the action he did were entirely

innocent. We have little difficulty in concluding it was reasonable for

Scott to take the action that he did.

Id. (footnote omitted).

The Court specifically rejected the notion that police can protect the public

by ceasing a pursuit. Id. at 1779. It explained that calling off a pursuit does not

guarantee a suspect will stop driving recklessly and may create “perverse

14

incentives” for individuals to flee and drive recklessly to evade arrest. Id. Instead,

it “la[id] down a more sensible rule: A police officer’s attempt to terminate a

dangerous high-speed car chase that threatens the lives of innocent bystanders does

not violate the Fourth Amendment, even when it places the fleeing motorist at risk

of serious injury or death.” Id.

When we apply Harris to the facts of this case, we have no doubt that

Harrison’s alleged use of deadly force to stop Beshers did not violate the Fourth

Amendment. As we noted above, to determine whether deadly force was

reasonable we must determine whether Officer Harrison’s actions were objectively

reasonable in light of the facts and circumstances of the pursuit. See Herrington,

381 F.3d at 1248 (citing Connnor, 490 U.S. at 397, 109 S. Ct. at 1872). From

Harrison’s perspective, he had reason to believe Beshers was a danger to the

pursuing officers and others and was driving under the influence of alcohol.

Harrison observed Beshers weaving in and out of traffic, crossing the double yellow

center line, driving on the wrong side of the road, and forcing others off the road.

He witnessed Beshers crash into Ms. Lyon’s vehicle and was rammed several times

by Beshers’ truck while traveling between 55 and 65 mph on Highway 145. As in

Harris, Beshers “intentionally placed himself and the public in danger by

unlawfully engaging in the reckless, high-speed flight.” Harris, 127 S. Ct. at 1778.

He ignored the “[m]ultiple police cars, with blue lights flashing and sirens blaring”

15

that had been chasing him for nearly 15 minutes. Id. Based on these circumstances,

we conclude that if Harrison intentionally used deadly force to seize Beshers, the

use of such force was reasonable.

We therefore hold Harrison did not violate Beshers’ Fourth Amendment right

to be free from excessive force during a seizure. Having found no constitutional

violation by Harrison, we need not proceed to the second step of the qualified

immunity analysis. See Harris, 127 S. Ct. at 1774.

III. CONCLUSION

Based on the foregoing, we affirm the district court’s grant of summary

judgment to the Defendants on all of Appellant’s federal law claims.

AFFIRMED.

16

PRESNELL, District Judge, concurring:

In light of Harris, I am compelled to concur in the panel decision. However,

I think the panel opinion fails to portray the facts in the proper light. We start with

the premise that officer Harrison applied deadly force to seize Beshers. The

question is, was that use of force objectively reasonable under the facts and

circumstances of this case? When the facts of this case are viewed, as they must be

at this stage, in the light most favorable to the Appellant, I believe they demonstrate

that this is a much closer case than Harris. My view of those facts, assessed in light

of the appropriate standard, is as follows:

I.Background

On April 20, 2002, Officer Scott Harrison was dispatched to Bev’s Quick

Stop, a convenience store in Toccoa, Georgia. A clerk at the store, believing a

customer was intoxicated, had refused to sell him beer. When Harrison arrived he

was told the man had put the beer down, gotten into a vehicle, and left. The clerk

showed Harrison a video of the man’s truck. Harrison was not told how many

people were in the truck, or whether the man who had attempted to buy the beer

was the driver or a passenger.

According to Harrison, just after leaving Bev’s Quick Stop he encountered

David Beshers’s pickup and watched it run a stop sign. Harrison then turned on his

emergency lights, which activated his cruiser’s video recording system. After

17

traveling a short distance down Highway 17-A, Beshers signaled and pulled into a

shopping center parking lot. He stopped long enough to drop off a passenger, who

was carrying a white plastic bag containing something about the size of a six pack,

and then pulled back onto Highway 17-A. Harrison turned on his siren and

followed him onto the highway. Shortly thereafter, Harrison radioed in the truck’s

license plate number. Harrison testified that at this point, Beshers was wanted for

nothing more significant than misdemeanor offenses.

As Beshers and Harrison proceeded down Highway 17-A, Officer John

Whitworth made a u-turn and joined the chase.1 Officer Linda Addis, also

approaching Beshers and Harrison from the opposite direction on 17-A, angled into

an intersection and stopped her cruiser directly in Beshers’s path, halting perhaps 10

feet in front of him.2 Beshers was forced to brake and swerve to avoid crashing into

this roadblock.3 This maneuver constituted the use of deadly force, long before

Beshers was even allegedly suspected of having committed a felony.

1

The recording system in Whitworth’s cruiser also videotaped the chase but for an

unknown reason it has no audio.

2

The recording system in Addis’s cruiser had neither audio nor video, also for unknown

reasons.

3

The panel opinion notes that Beshers drove “into oncoming traffic,” suggesting that

Beshers simply chose to menace other drivers. The videotape does not support such a

suggestion. Addis stopped her cruiser at an angle across Beshers’s lane, with its front much

closer to Beshers’s truck than its rear. Judging from the video, if Beshers had swerved to the

right, away from oncoming traffic, he likely would have run into the nose of Addis’s cruiser. It

should also be noted that upon clearing Addis’s cruiser, Beshers promptly returned to the proper

lane, and he did so without encountering any oncoming traffic.

18

After returning to the proper lane, Beshers proceeded down Highway 17-A.

The video does not show Beshers driving erratically or forcing any motorists off the

road. Beshers changed lanes several times, and some drivers slowed and pulled to

the edge of the pavement – not off of it – presumably in response to the parade of

officers with flashing lights and sirens. At the intersection of Highway 17-A and

Rose Lane, Beshers came up behind a car in the right lane, which was stopped at a

red light. Beshers swerved onto the right shoulder to go around the car, which was

driven by Francis Lyon. As Beshers pulled alongside Lyon, she began to make a

right turn, which apparently resulted in her vehicle sideswiping his truck.4 Beshers

then turned right onto Rose Lane.5

Deputy Brian Perrin of the Stephens County Sheriff’s Office, who happened

to be stopped on Rose Lane at the intersection, witnessed the apparent collision

from a few feet away. As Harrison made the right turn onto Rose Lane in pursuit of

Beshers, he shouted “Go! Go!” out his window to encourage Perrin – a personal

friend – to join the chase. Perrin contacted his agency for permission. Perrin told

4

It is impossible to tell, from the video, whether the two vehicles collided. The Toccoa

officers subsequently claimed to have perceived this collision as an intentional assault by

Beshers on Lyon. But the video clearly shows (1) Beshers pulling alongside Lyon,(2) Lyon

turning right, and (3) Beshers immediately jerking the nose of his truck to the right – away from

Lyon, to avoid hitting her.

5

It is not clear whether Beshers had originally intended to turn right on Rose Lane or to

pass Lyon on the shoulder and continue on Highway 17-A. Beshers signaled his left-hand turn

into the shopping center parking lot and the subsequent left turn from Rose Lane onto Georgia

Highway 145, but did not activate his turn signal as he approached Rose Lane.

19

his agency that he saw a collision, but he did not characterize it as a felony assault.

Instead, Perrin reported that the basis for the pursuit was suspicion of driving under

the influence. The Stephens County Sheriff’s Office only allowed pursuits in cases

involving forcible felonies. Based on Perrin’s description, his supervisor did not

believe such a felony had been committed and refused to allow him to join the

chase.

At a “T” intersection with Georgia Highway 145, Beshers signaled and

turned left, heading south.6 While on Highway 145, Beshers crossed the center line

numerous times to pass other cars or to round curves. Each time he did so, he fully

returned to the southbound lane before encountering oncoming vehicles. Again, the

video does not show Beshers driving erratically or forcing other drivers off the

road, although cars continued to slow and pull to the edge of the pavement as

Beshers and the officers approached. At one point while traveling on Highway 145,

Corporal Matt Ramey (“Ramey”), who was in the vehicle driven by Addis, radioed

dispatch to relay the reasons for the pursuit. He listed “reckless driving,” “leaving

the scene of an accident” and “possibly, assault with a motor vehicle,” in that

6

The video shows that Highway 145 – or at least the section of it on which this pursuit

occurred – is a rural stretch of highway, with no sidewalks or pedestrian traffic, and only sparse

vehicle traffic. Corporal Matt Ramey, who was in the vehicle driven by Addis, testified that the

area where the crash occurred was “a very unpopulated area. I mean, there’s not much traffic.

There’s not many people. You know, we went from the middle of a municipality, in the middle

of a town, out, down a two-lane road, where it becomes a little safer situation.”

20

order.7 Harrison subsequently testified that, at this point, he did not believe that

Beshers posed an immediate threat to the safety of any officer or of the public.

A short time thereafter, Harrison passed Whitworth to become the lead

pursuer. He made a number of attempts to pass Beshers, but was repeatedly forced

to return to the southbound lane due to oncoming traffic or, in at least one case,

limited visibility. Finally, Harrison was successful in passing Beshers. As Harrison

pulled alongside and then ahead of Beshers, Beshers did not attempt to ram him or

run him off the road.8

Harrison completed his pass of Beshers and pulled back into the southbound

lane. Almost immediately thereafter, Beshers pulled across the center stripes,

apparently attempting to pass Harrison in the northbound lane. Harrison

immediately swerved into the northbound lane in front of Beshers and applied his

brakes.9 Beshers then swerved back into the southbound lane, straightening out

just before his passenger-side tires touched the white line near the edge of the

7

In addition to the use of the word “possibly,” Ramey’s tone of voice at least arguably

suggested he is not convinced any such assault occurred.

8

Harrison subsequently testified that he passed Beshers to be in a better position to warn

oncoming traffic and in hopes of discouraging Beshers from continuing to flee, but he did not

broadcast such a statement during the pursuit.

9

Although the videotape from Whitworth’s vehicle is not crystal clear, watching it

several times in slow motion has convinced me that it is at least more likely than not that

Harrison’s brake lights came on just before Beshers hit him from behind. In any event, the

Whitworth video does not “clearly contradict” Appellant’s contention on this point. As such, the

court is required to assume that Harrison, not Beshers, initiated the first collision between them.

21

pavement. Harrison also swerved back into the southbound lane. As Harrison did

so, his cruiser was no longer entirely ahead of Beshers’s truck, either because he

had slowed or because Beshers had accelerated (or both). As a result, when

Harrison swerved into the southbound lane, the right rear of his cruiser collided

with the left front of Beshers’s truck, forcing Beshers to the right, partially off the

paved surface. Harrison continued ramming the passenger side of his cruiser into

the driver’s side of Beshers’s truck, forcing Beshers completely off the road and

onto the unpaved shoulder. While doing so, Harrison moved so far over to the right

that his passenger-side tires left the pavement.

Driving on the shoulder, Beshers slowly nosed his truck ahead of Harrison’s

cruiser. Despite Harrison’s efforts to force him farther off the road, the two front

wheels of Beshers’s truck re-entered the paved surface.10 Once Beshers’s front two

wheels were on the pavement, Harrison hit him again in the side. This final contact

caused the truck’s two rear wheels to slide to the right on the dirt shoulder. As the

truck’s back end came around to the right, the truck began to roll. Beshers died in

the crash that followed, approximately fifteen minutes after Harrison first began

chasing him.

II.DISCUSSION

10

It is not clear from the video whether this occurred because Beshers was trying to return

to the road or because a collision with Harrison’s cruiser forced the back end of Beshers’s truck

to the right, causing its nose to go left, back toward and onto the highway.

22

When the foregoing facts are viewed in the light most favorable to Beshers,

one is forced to conclude that his conduct was not particularly heinous. Leaving

aside for the moment that he was fleeing the police, for fifteen minutes David

Beshers exceeded the speed limit by up to 10 mph, illegally wove in and out of

traffic, and ran some stop signs. Though such conduct is undeniably dangerous,

you would be hard-pressed to find a reasonable person who felt that such activities,

standing alone, warranted death. Indeed, society expects such conduct from law

enforcement officers and ambulance drivers, among others, and shrugs off such

conduct when engaged in for the right motive, such as to rush an injured friend to

the hospital.

But Beshers engaged in this conduct while being chased by the police. Given

that predicate, the law says that the fact that he did not try to use his truck as a

weapon does not matter. The fact that police were trying to apprehend him for

relatively minor, nonviolent crimes does not matter. The fact that he did not

actually harm anyone – aside from, perhaps, sideswiping Lyon – is of no

consequence. Nor does it matter that, shortly before he began to utilize deadly

force, Harrison had no subjective belief that Beshers posed a danger to himself or

others.11

11

Indeed, the pursuing officers demonstrated a willingness to use deadly force against

Beshers – in the form of Addis’s roadblock – long before his driving posed a significant threat to

others.

23

Beshers unquestionably endangered innocent bystanders while engaging in

an activity that had no societal benefit. Under the Fourth Amendment balancing

test applied in Harris, the “actual and imminent threat to the lives” of the innocent

posed by Beshers’ conduct outweighs the “high likelihood of serious injury or

death” to Beshers posed by Harrison’s efforts to terminate the chase, because

Beshers “intentionally placed himself and the public in danger by unlawfully

engaging in ... reckless, high-speed flight.” Harris, 127 S.Ct. at 1778. Harris

compels me to conclude that, as a matter of law, Harrison had the right to end the

chase by killing Beshers – or, to utilize the language of the Harris court, Harrison’s

attempt to terminate the dangerous high-speed car chase, which threatened the lives

of innocent bystanders, did not violate the Fourth Amendment, even though it

placed Beshers at serious risk of injury or death. Id. at 1779.

In this case, that could very well be the proper result. It is certainly

conceivable that a jury could weigh all the evidence (rather than viewing it in the

light most favorable to Beshers) and decide that Harrison’s use of deadly force was

justified. A reasonable juror could reach this result, even though Beshers was

suspected of comparatively minor offenses, and even though we have all witnessed

hundreds of vehicles speeding, passing illegally, and running stop signs without

causing an accident.

24

Yet this decision troubles me. Realistically, a suspect fleeing the police in a

car will inevitably violate some traffic laws. By doing so, he will endanger the lives

of innocent motorists (as well as the pursuing officers).12 And that danger will

always outweigh the threat posed to the suspect by the officer’s use of deadly force,

because the suspect is the one who chose to put everyone else at risk by refusing to

stop. In other words, the danger to the suspect is given no weight. For all of its talk

of a balancing test, the Harris court has, in effect, established a per se rule: Unless

the chase occurs below the speed limit on a deserted highway, the use of deadly

force to end a motor vehicle pursuit is always a reasonable seizure.

As a practical matter, a police officer’s qualified immunity to use deadly

force in a car chase situation is now virtually unqualified. Harris and this opinion

allow a police officer to use deadly force with constitutional impunity if the fleeing

suspect poses any danger to the public. In my humble opinion, I believe we will

live to regret this precedent.

If a balancing test is to have any real meaning, a jury ought to be deciding

whether the risk posed by the fleeing suspect is too minimal, or the suspected crime

too minor, to make killing him a reasonable way to halt the chase. Nevertheless,

based on my reading of Harris, that decision has been taken away from the jury

12

As attested by the dangerous instrumentality doctrine, the operation of a motor vehicle

is inherently dangerous to others. Thus, the chase occasioned by a fleeing motorist will itself

arguably create an immediate and substantial potential for harm to the traveling public.

25

where, as here, the fleeing suspect has endangered others. I therefore reluctantly

concur in the result reached by the majority.

26