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

GOULD, Circuit Judge,

dissenting:

I cannot accept the majority’s conclusion that Haugen, a visibly disturbed felon willing to do almost anything to avoid capture, did not pose “a significant threat of death or serious physical injury” to others when he attempted a high-speed vehicular flight from police through a suburban residential neighborhood on a Sunday afternoon. Nor can I accept the majority’s holding that— because police can reduce the danger of a high-speed chase by letting a felon escape — police may never use deadly force to protect the public from the danger posed by a felon’s reckless flight from police in a vehicle. The majority’s sweeping holding, which promises an easy escape to any fel *877 on willing to threaten innocent lives by driving recklessly, is indefensible as a matter of law and policy, and it conflicts with our sister circuits’ holdings that police officers do not violate the Fourth Amendment by using deadly force to stop a fleeing felon who appears likely to drive an automobile with willful disregard for the lives of others. 1 The majority opinion creates a new obstacle to effective law enforcement in the western United States. It threatens the innocent to protect the guilty.

I

Under Tennessee v. Garner, 471 U.S. 1 , 105 S.Ct. 1694 , 85 L.Ed.2d 1 (1985), the reasonableness of Officer Brosseau’s conduct under the Fourth Amendment depends on (1) whether she had probable cause to believe that Haugen’s fleeing the scene in his car would pose “a significant threat of death or serious physical injury” to others and (2) whether deadly force was necessary to prevent Haugen’s escape. Id. at 3 , 105 S.Ct. 1694 . Officer Brosseau’s conduct was reasonable under the Gamer standard.

Viewing the evidence in the light most favorable to Haugen, as we must at this stage, 2 Officer Brosseau had probable cause to believe that Haugen’s fleeing the scene in his car would pose a significant threat of serious harm to others. Haugen was a desperate man capable of desperate measures. Haugen was a felony suspect who, when Officer Brosseau arrived on the scene, was engaged in a violent brawl with two other men. 3 Haugen defied Bros-seau’s orders to stop; he ignored her brandishing a gun at close range; he ignored her beating his car window with the butt of her gun; he ignored her shattering his car window; he ignored her striking him in the head with the butt of her gun; he ignored her attempts to grab his keys. Haugen was behaving wildly, even suicidally (defying an officer brandishing a gun at close range), and Officer Brosseau had probable cause to believe that Haugen would do almost anything to avoid capture. See Menuel v. City of Atlanta, 25 F.3d 990, 995 (11th Cir.1994) (from the vantage of an officer confronting a dangerous suspect, “a potential arrestee who is neither physically subdued nor compliantly yield *878 ing remains capable of generating surprise, aggression, and death”). 4

As Haugen admitted in his deposition, he attempted a high-speed vehicular flight through suburban streets. Haugen admitted that he drove as fast as he could when he left the driveway, that he drove through the residential streets as fast as his car would go in third gear, and that he would have driven faster if the bullet wound had not made it difficult for him to shift gears. Haugen later pled guilty to the felony of “eluding,” admitting he drove his vehicle “in a manner indicating a wanton or willful disregard for the lives or property of others.” Wash. Rev.Code § 46.61.024. That Haugen, by his own admission, drove his car in a manner indicating “a wanton or willful disregard for the lives ... of others” is powerful evidence of the reasonableness of Officer Brosseau’s earlier belief that he would pose a significant threat of serious harm to others if permitted to escape.

A criminal suspect’s fleeing from police in an automobile is inherently dangerous. The National Highway Traffic Safety Administration reports that 314 people were killed during police pursuits in 1998, the last year for which I can find a record. 5 National Highway Traffic Safety Administration, Fatality Analysis Reporting System — ARF, Fatalities in Crashes Involving Law Enforcement in Pursuit 1998 (2000). Of that total, two were police officers, 198 were fleeing criminal suspects, and 114 were innocent bystanders. Id. Presumably, many more high-speed pursuits result in serious injuries. 6

*879 The annals of law are filled with stories of police chases with tragic ends. In City of El Centro v. United States, a driver fleeing from police flipped his van, leading to an explosion that killed him and two passengers and that injured another fourteen passengers. 922 F.2d 816, 818 (Fed.Cir.1990). In Mays v. City ofE. St. Louis, III, a driver fleeing from police ran into a cement barrier, killing one passenger and severely injuring eight others. 128 F.3d 999, 1000 (7th Cir.1997). In Roach v. City of Fredericktown, a driver fleeing from police lost control of his car and collided with an oncoming car, killing himself and seriously injuring others. 882 F.2d 294 , 295 (8th Cir.1989). In Helseth v. Burch, a driver fleeing from police ran a red light and collided with a pickup truck, killing the truck’s passenger, rendering the truck’s driver a quadripelegie, and seriously injuring three children in his own car. 258 F.3d 867, 869 (8th Cir.2001) (en banc). In Mason v. Bitton, a driver fleeing from police lost control of his car, crossed a median, and collided with an oncoming car, killing the occupants of both cars. 85 Wash.2d 321 , 534 P.2d 1360, 1361-62 (1975). These judicial decisions tell the tragic stories of only a few deadly police chases. There have been thousands more in the past. And there will be thousands more in the future, particularly if the majority’s view prevails, deterring law enforcement from protecting the public.

I do not suggest that police marksmen may fire at will upon any felon fleeing in an automobile, merely because the felon is leaving the scene of a crime or because the felon has violated traffic laws. 7 Rather, I suggest that where police have probable cause to believe a fleeing felon will drive with willful disregard for the lives of others, the Supreme Court’s Gamer decision permits officers to -use deadly force when necessary to protect the public. Officer Brosseau plainly had such probable cause here.

Officer Brosseau was concerned not only with the real possibility that Haugen might cause serious injury or even a fatality if she permitted him to speed through the neighborhood in his car. Brosseau also was concerned with the imminent possibility that Haugen might injure someone on the scene. Photographs in the record show that Haugen “peeled out” (he accelerated, leaving visible skid marks) of a driveway blocked on three sides by houses and a garage. Directly in Haugen’s path were parked vehicles containing four persons, including a young child. Only by driving through this narrow passageway, 8 around the corner of a neighbor’s house, and across a neighbor’s lawn (a maneuver Haugen admitted he executed while accelerating “as quickly as [he] could”) did Haugen avoid the cars. Brosseau was right to worry that Haugen, if permitted to *880 speed through this obstacle course, would seriously injure the innocent bystanders or one of the police officers Brosseau believed were running toward the scene on foot to assist her.

The first prong of the Supreme Court’s Garner test is met. Not only was Haugen fleeing in a 8,000 pound vehicle, but also he was behaving in a manner that suggested he would drive with reckless disregard for the lives of others (as he subsequently did). Presented with a desperate man taking desperate measures in a deadly machine, Officer Brosseau reasonably concluded that Haugen posed a significant threat of serious harm to the community. See United States v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir.1987) (“It is indis-puted that an automobile can inflict deadly force on a person and that it can be used as a deadly weapon.”) (per curiam).

The second prong of the Gamer test also is met, because deadly force was necessary to prevent Haugen from escaping. Deadly force is not necessary where there exists a less drastic alternative that is “reasonably likely to lead to apprehension before he suspect can cause further harm.” Forrett v. Richardson, 112 F.3d 416, 420 (9th Cir.1997). Here, Officer Brosseau attempted several less drastic alternative means of subduing Haugen before shooting him. She called several other officers and a police dog to scour the neighborhood for him. She ordered him to freeze as he ran to his car. She chased him. She ordered him to open the door and to get out of his car. She brandished her gun — effectively warning him that he must relent or be shot. She smashed his driver’s side window. She beat his head with the butt of her gun. She tried to take his keys. Only after Officer Brosseau had attempted several less drastic alternatives — alternatives that failed to subdue Haugen — did she resort to the extreme step of shooting Haugen.

Haugen urges that a less drastic alternative would have been for Officer Brosseau to permit him to flee in his car. Haugen urges that officers would have been able to capture him another time. However, Haugen fails to recognize the costs to society of allowing felons to flee without constraint. And Haugen fails to explain by what method those officers would have subdued him “before [he could] cause farther harm,” as our Forrett decision (and common sense) requires. 112 F.3d at 420 (emphasis added). Haugen’s reckless departure threatened the safety of people on the scene. His racing through the streets threatened the safety of people in the neighborhood. Research indicates that vehicular flights from police become dangerous very quickly. Fifty percent of all collisions occur in the first two minutes of police pursuit, and more than 70 percent of all collisions occur before the sixth minute of the pursuit. G.P. Alpert, U.S. Department of Justice, National Institute of Justice, Pursuit Management Task Force Report (1998). Officer Brosseau correctly decided that waiting was not an option under the circumstances. 9

*881 Even if permitting Haugen to race away in his automobile were a reasonable alternative, we cannot properly fault Officer Brosseau for not thinking of it in the heat of the moment. Judges must allow “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 force that is necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 397 , 109 S.Ct. 1865 , 104 L.Ed.2d 443 (1989). We must judge Officer Brosseau’s conduct from the perspective of a reasonable officer on the scene, not from the perspective of a judge in his or her chambers. Id. The majority effectively ignores this command from the Supreme Court, measuring Officer Brosseau’s conduct not against the standard of a reasonable officer on the scene, but against the standard of its own inexpert judgment as to what Officer Brosseau should have done under the circumstances.

In sum, I would hold that Officer Bros-seau had probable cause to believe that Haugen’s leading police on a reckless high-speed car chase through a residential neighborhood would pose a significant threat of serious harm to the community and that the use of deadly force was necessary to prevent his escape. I would hold that Officer Brosseau’s shooting of Haugen did not violate Haugen’s Fourth Amendment rights.

The majority’s contrary holding is objectionable not only because it flouts the Supreme Court’s Garner standard, but also because it creates a circuit split. The Sixth, Eighth, and Eleventh Circuits all have held, as I would hold, that officers are justified in using deadly force when a fleeing felon appears likely to drive with willful disregard for the lives of others. See Scott v. Clay County, 205 F.3d 867, 877 (6th Cir.2000) (holding that police reasonably shot a felon fleeing in an automobile when his reckless driving posed an immediate threat to the safety of officers and innocent civilians); Smith v. Freland, 954 F.2d 343, 347-48 (6th Cir.1992) (holding that police reasonably shot a misde-meanant 'fleeing in an automobile when he posed a threat to officers at a police roadblock and appeared likely to “do almost anything to avoid capture”); Cole v. Bone, 993 F.2d 1328, 1330-33 (8th Cir.1993) (holding that police reasonably shot a criminal fleeing in a truck when he posed a threat to travelers driving on a crowded interstate highway); Pace v. Capobianco, 283 F.3d 1275, 1281 (11th Cir.2002) (holding that police reasonably shot a felon fleeing in an automobile when he appeared likely to continue using his vehicle aggressively during a police pursuit).

Contrary to the holdings of every circuit to consider the issue, the majority holds that an officer violates a fleeing felon’s Fourth Amendment rights by using deadly force to prevent a dangerous vehicular flight because “officers can often eliminate or reduce the danger of a high-speed chase by forgoing or discontinuing a chase.” Su *882 pra at 870. 10 The majority believes that police officers should permit felons to speed away unpursued rather than attempt to stop them. See id. at 869 (“[Officers] could either have discontinued a chase if it became too dangerous, or could have forgone a chase entirely.”); id. at 870 (“[A]n officer must sometimes forego or discontinue deadly force and allow a suspect to escape.”). The majority slights the important law enforcement interests in pursuing fleeing felons. See, e.g., Donovan v. City of Milwaukee, 17 F.3d 944, 951 (7th Cir.1994) (“Police officers may, and ought to, pursue fleeing suspects, and where those suspects present a threat of serious physical harm, either to the officer[s] or others, it is not constitutionally unreasonable to prevent escape by using deadly force.”) (emphasis added). The majority neglects the fact that if police are forbidden to pursue, then many more suspects will flee — and successful flights not only will reduce the number of crimes solved but also will create serious risks for passengers and bystanders. See Mays v. City of E. St. Louis, 123 F.3d 999, 1003 (7th Cir.1997). Moreover, the majority errs by putting the onus on police to end the pursuit by letting the felon escape, rather than on the fleeing felon, who at all times has the power to avoid injury to himself and others by halting as the law requires. See id. at 1004 (holding that a police officer’s pursuit of a fleeing felon in an automobile played a “causal role” in an ensuing wreck, “but not the kind of cause the law recognizes as culpable.... [A] criminal’s effort to shift the blame [to police] ... is not one that any legal system can accept.”).

The majority attempts to justify its departure from precedent by reasoning that Officer Brosseau’s fellow police officers might have decided to let Haugen escape in his jeep unpursued and that, for this reason alone, Officer Brosseau did not have probable cause to believe that Hau-gen’s vehicular flight would pose a danger to others. There are several problems with the majority’s reasoning.

First, the majority implies, contrary to the record evidence, that Haugen would have driven safely and carefully away from the scene if he had not been followed by police squad cars. But it is unrealistic to conclude that Haugen, a deranged and defiant felon, would suddenly have been transformed into a model citizen and careful driver the moment he drove away from the scene and did not hear police sirens in pursuit. And even if Officer Brosseau had believed that her fellow officers would not pursue Haugen’s vehicle, Brosseau still would have had probable cause to believe that Haugen would speed away from the scene with willful and wanton disregard for others’ safety. Indeed, even before the police squad cars gave chase, Haugen was, by his own admission, “standing on the gas” in the driveway, accelerating “as quickly as [he] could,” within a “small, tight space,” a fact that confirms the reasonableness of Officer Brosseau’s earlier concern about others’ safety.

*883 Second, the majority implies (with no basis in the record) that Washington law or Puyallup Police Department policy prohibited (or, at least, discouraged) Officer Brosseau’s fellow officers from pursuing Haugen in their squad cars. Although police officers in Washington may have to compensate a person who is injured by police officers’ negligent conduct while pursuing a fleeing felon, Mason v. Bitton, 85 Wash.2d 321 , 584 P.2d 1360 , 1363 (1975), Washington law does not prohibit police from pursuing a fleeing felon in a vehicle. So the majority errs by effectively holding that Officer Brosseau was required to assume that her fellow officers would not chase Haugen in their squad cars and that Haugen would drive away carefully, safely, and unpursued.

Third, Officer Brosseau’s fellow officers in fact chased Haugen in their squad cars, so Officer Brosseau was correct in assuming that a police pursuit would occur. Officer Brosseau was entitled to consider the potential danger of that police pursuit in assessing the danger Haugen posed to others.

The majority apparently prefers, as a matter of policy, that police departments discourage their officers from pursuing felons in automobiles. If the majority had its way in setting law enforcement policy, no police officer ever would pursue a felon at high speed; the police would surrender, rather than the felon, who would be given a free pass to an easy escape. In my view, the majority errs by allowing its policy preference to corrupt its analysis of the danger Haugen posed to the community by fleeing in a vehicle in a deranged mental state.

Having created a circuit split by misapplying Gar ner, the majority downplays its departure from our sister circuits’ decisions by urging that those decisions approved of deadly force in circumstances very different from those presented here. Although every case presents unique facts, the facts in our sister circuits’ decisions are similar to the facts here in important respects. In the Sixth, Eighth, and Eleventh Circuit cases, as in this case, a suspect was fleeing from police in an automobile, a machine that can be extremely dangerous when not operated with great care and due regard for the public safety. See Scott, 205 F.3d at 871-72 ; Smith, 954 F.2d at 344 ; Cole, 993 F.2d at 1330 ; Pace, 283 F.3d at 1277 . In those cases, as in this case, the felon refused orders to halt. See Scott, 205 F.3d at 871 ; Smith, 954 F.2d at 344 ; Cole, 993 F.2d at 1330 ; Pace, 283 F.3d at 1277 . In those cases, as in this case, the felon was behaving in a desperate and unstable manner. See Scott, 205 F.3d at 872 ; Smith, 954 F.2d at 344 ; Cole, 993 F.2d at 1330-31 ; Pace, 283 F.3d at 1277-78 . In those cases, as in this case, the felon appeared likely to take extreme steps to avoid capture. See Scott, 205 F.3d at 872 ; Smith, 954 F.2d at 344 ; Cole, 993 F.2d at 1331 ; Pace, 283 F.3d at 1277-78 . Most importantly, in those cases, as in this case, the felon appeared likely to drive with willful disregard for the lives of others. See Scott, 205 F.3d at 872 ; Smith, 954 F.2d at 344 ; Cole, 993 F.2d at 1330-31 ; Pace, 283 F.3d at 1277-78 . 11

The majority attempts to distinguish our sister circuits’ holdings on the ground that *884 police in those cases used deadly force to end a dangerous high-speed flight, rather than to prevent a dangerous high-speed flight from commencing. But our sister circuits did not, as the majority implies, require that police officers wait until after a suspect has endangered the lives of others before using deadly force. Nor could they have so held. The Supreme Court’s Gamer decision requires courts to determine whether officers have probable cause to believe a suspect will pose a threat of serious physical harm in the future, not whether the suspect posed such a danger in the past. See Garner, 471 U.S. at 11-12 , 105 S.Ct. 1694 .

At the time Officer Brosseau shot Hau-gen, Haugen’s vehicle had not yet begun to move. But an objective observer would have reasonably concluded that Haugen was embarking on a desperate, potentially deadly, high-speed vehicular flight through residential neighborhoods. That Haugen was only beginning to execute his plan of driving with willful and wanton disregard for the lives of the innocent does not mean, as the majority suggests, that Haugen did not pose a"significant threat of death or serious physical injury" to others. Nothing requires a police officer, like some modern-day Epimetheus, to disregard prospective danger and attend only to dangers that have passed. It was good that Bros-seau acted when she did.

Contrary to the majority’s suggestion, neither the Seventh Circuit’s Donovan decision nor the Eleventh Circuit’s Vaughan v. Cox decision lends support to the majority’s novel holding. Both Donovan and Vaughan are consistent with my view-compelled by the Supreme Court’s Gamer decision that police can use deadly force when necessary to stop a fleeing felon who appears likely to drive with willful disregard for the lives of others. In Donovan , the Seventh Circuit held that genuine issues of material fact existed as to whether deadly force was proper when “there [was] no evidence that [the suspect] imperiled anyone (except himself and his willing passenger) ... [by] driving his motorcycle through empty city streets in the wee hours of the morning.” 17 F.3d at 951 . Here, by contrast, Haugen’s own testimony-describing his attempted high-speed flight through a suburban residential neighborhood in his jeep on a Sunday afternoon-shows that Haugen’s conduct would have imperiled many people, both on the scene and in the community, if Officer Brosseau had not reasonably intervened.

In Vaughan, the Eleventh Circuit held that genuine issues of material fact existed as to whether deadly force was proper when police shot without warning a fleeing suspect. 264 F.3d 1027 , 1031, 1031 n. 2 (11th Cir.2001) (vacated by 536 U.S. 953 , 122 S.Ct. 2653 , 153 L.Ed.2d 830 (2002), reinstated and supplemented on remand at 316 F.3d 1210 (11th Cir.2003)). Here, by contrast, it is undisputed that Officer Bros-seau effectively warned Haugen that he would be shot if he did not submit to arrest.

Fourth Amendment analysis requires a delicate balancing of individual and societal interests, Michigan v. Summers, 452 U.S. 692 , 700 n. 12, 101 S.Ct. 2587 , 69 L.Ed.2d 340 (1981), and an individual’s interest in his or her life is of unmatched importance. But when a felon threatens innocent lives in a base attempt to escape responsibility for his or her crimes, police officers do not act unreasonably in using deadly force to protect the community. I would hold that Officer Brosseau did not violate Haugen’s Fourth Amendment rights and that the district court properly granted summary judgment in her favor.

* sH * # *

*885 With perhaps the purpose, but certainly not the effect, of obscuring its departure from the Supreme Court’s Garner standard and our sister circuits’ precedents, the majority deploys an array of rhetorical devices that, individually and collectively, serve only to accentuate the weaknesses of the majority’s rationale.

First, the majority implies that its holding is consistent with those of our sister circuits. But no other court has ever come close to holding, as the majority holds today, that police may never use deadly force to protect the public from the danger posed by a felon’s reckless flight from police in a vehicle. See Scott, 205 F.3d at 877 (holding that police reasonably used deadly force to stop a suspect fleeing in a vehicle); Smith, 954 F.2d at 347-48 (same); Cole, 993 F.2d at 1330-33 (same); Pace, 283 F.3d at 1281 (same). Second, the majority implies that police officers’ decision to pursue Haugen in their police cruisers was of dubious legality under Washington law. But it was not; such chases are permissible, though they must be conducted with due care. See Mason, 534 P.2d at 1363 . Third, the majority states that we cannot properly take judicial notice of the official government statistics I cited to emphasize the dangerousness of high-speed flights by felons from police. But this is incorrect. See, e.g., Chastleton Corp. v. Sinclair, 264 U.S. 543, 548 , 44 S.Ct. 405 , 68 L.Ed. 841 (1924) (Holmes, J.) (“[T]he Court may ascertain as it sees fit any fact that is merely a ground for laying down a rule of law....”). Fourth, the majority states that the Supreme Court in Gamer rejected “[the dissent’s] kind of general statistical approach.” See supra at 870. But I do not use any “general statistical approach,” and, in any event, the Supreme Court used statistics in Gamer in precisely the way I use them here. See 471 U.S. at 21 , 105 S.Ct. 1694 . Fifth, the majority states that I do not view the facts in the light most favorable to Haugen. But I have relied only on facts Haugen does not dispute, facts that compel the conclusion that Haugen’s fleeing in his vehicle would have posed a significant threat of death or serious physical injury to others.

The majority’s artful phrasing and overwrought lucubrations should not and cannot obscure the majority’s departure from the Supreme Court’s and our sister circuits’ law. Acting somewhat as a police commissar for the western states and territories in our jurisdiction, rather than as a constitutional court, the majority imposes serious and unworkable restrictions on police officers’ efforts to bring criminals to justice and to protect the community. I cannot join the majority in that effort.

II

The majority’s holding that Officer Brosseau violated Haugen’s rights is wrong. But it is not as wrong as the majority’s holding that those rights were “clearly established” at the time of the shooting. It should be undeniable that Officer Brosseau did not violate Haugen’s “clearly established” rights and so was qualifiedly immune from suit.

Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092 , 89 L.Ed.2d 271 (1986). If “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted,” then qualified immunity does not apply. Saucier v. Katz, 533 U.S. 194 , 202, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). But if, on the other hand, “officers of reasonable competence could disagree on th[e] issue, immunity should be recognized.” Malley, 475 U.S. at 341 , 106 S.Ct. 1092 .

*886 Officer Brosseau was not plainly incompetent. 12 Nor did she knowingly violate the law. Police officers of reasonable competence could disagree whether deadly force was justified. 13 In fact, federal appeals courts of reasonable competence do disagree on the issue. 14 And judges, unlike police officers,, have the luxury of studying the constitutional issues in the calm of their chambers, with the benefit of lawyers’ briefing, and after hearing oral arguments. See Ganwich v. Knapp, 319 F.3d 1115, 1125 (9th Cir.2003) (“[J]udges should not expect police officers to read United States Reports in their spare time, to study arcane constitutional law treatises, or to analyze Fourth Amendment developments with a law professor’s precision.”).

The majority holds Officer Brosseau to an unreasonable standard. Officer Bros-seau should be commended, not condemned, for acting with courage and decisiveness to protect the public from a dangerous felon in a deranged mental state embarking on a potentially deadly flight from police. I respectfully dissent. 15

. As I explain below, the majority creates a circuit split, departing from the holdings of the Sixth, Eighth, and Eleventh Circuits.

. This is because the district court granted summary judgment to Officer Brosseau.

. In an attempt to portray Haugen as appearing peaceful, the majority states that, "[b]y all accounts, ... Haugen was on the receiving end of the violence .... [and] the 'brawl' ... was finished when Brosseau arrived.” See supra at 872 (emphasis added). The majority omits Haugen’s account in his deposition, in which he admitted to engaging in acts of violence. Haugen stated that he and his adversary "got into a wrestling thing.” Haugen then stated that, just after Officer Brosseau arrived on the scene, he "elbowed Atwood and went for the keys in his truck.” Haugen continued, "[T]he police pulled up. [Atwood and Tamburello] were distracted. I ellbowed [Atwood] the rest of the way out of the car and got away from him.”

In any event, it does not matter whether Haugen or his adversaries were the initial aggressors in their combat. What matters is Officer Brosseau's "contemporaneous knowledge of the facts,” see Deorle v. Rutherford, 272 F.3d 1272, 1281 (9th Cir.2001), and Officer Brosseau knew only that Haugen was engaged in a violent brawl when she arrived on the scene. It is undisputed that Officer Brosseau received a radio dispatch stating that there was a "fight in progress” and that "[t]wo men were fighting on the ground.” Officer Brosseau was entitled to consider the fact that Haugen had been fighting as one factor in assessing Haugen’s potential dangerousness, and the majority errs by dismissing it.

. The majority states that Officer Brosseau was not motivated by a desire to protect the community from Haugen's likely erratic driving. This is false. In Officer Brosseau's tape-recorded police department interview, Bros-seau stated that she shot Haugen "to protect my fellow officers and the community from an eminent [sic] danger.” (emphasis added). She then stated that she was concerned for "pedestrians and officers and residents in the area.’’ (emphasis added). In her written statement, Officer Brosseau stated,

During my encounter with Haugen it was obvious that he was in a wholly unstable frame of mind. He did not exhibit any regard for his own life. I considered Haugen an immediate danger to all around him and made every attempt to stop him. (emphasis added). Officer Brosseau’s expressed concerns were to protect the community, the residents in the area, and all those around Haugen. She did not, as the majority implies, limit her concern to people in the immediate area.

. Though these statistics demonstrate that felons fleeing from police in automobiles put the public at serious risk of death or injury, the statistics almost certainly understate the extent of the danger, due to the lack of a mandatory reporting system. John Hill, High-Speed Police Pursuits: Dangers, Dynamics, and Risk Reduction, Law Enforcement Bulletin 14 (July 2002) ("Even conservative estimates by various researchers recalculate the actual number of fatalities between 400 to 500 deaths per year.”).

.The majority faults me for citing these official government statistics, arguing that the Supreme Court in Gamer rejected "this kind of general statistical approach.” Supra at 870. The majority misrepresents my analysis. I do not, as the majority says, rely solely on statistics to support my view that Officer Brosseau was entitled to use deadly force. Rather, I rely on the objective circumstances — most notably Haugen’s wild behavior immediately before he sped away in his jeep — that demonstrated to observers that Haugen was about to drive with willful disregard for the lives of others. My analysis does not depend on the government statistics, which I cite merely to emphasize the reasonableness of Officer Brosseau's decision to use deadly force and the important consequences to our society if Officer Brosseau's appropriate conduct is condemned.

Moreover, my use of statistics is consistent with the Supreme Court's use of statistics in Garner. See 471 U.S. at 21 , 105 S.Ct. 1694 (relying on a Bureau of Justice Statistics report to support the conclusion that "burglaries only rarely involve physical violence.”).

. The majority thus mischaracterizes my analysis as “an approach that would allow officers to shoot a suspect simply because he is fleeing, or is about to flee, in a vehicle.” Supra at 870. Contrary to the majority's mischarac-terization, I would hold that deadly force is reasonable only when it appears that a fleeing felon will drive with willful disregard for the lives of others. Here, Haugen's wild and defiant actions (which included disobeying a police officer brandishing a gun at close range) prior to fleeing in his vehicle plainly indicated that he would take any steps necessary to avoid capture, including driving with willful disregard for the lives of others, which Haugen — by his own admission. — subsequently did. As Officer Brosseau stated,

During my encounter with Haugen it was obvious that he was in a wholly unstable frame of mind. He did not exhibit any regard for his own life. I considered Haugen an immediate danger to all around him and made every attempt to stop him.

. Haugen in his deposition described this passageway as a "small, tight space.”

. The author of the majority opinion at oral argument asked defense counsel whether Officer Brosseau should have shot Haugen's tires to disable his vehicle. Though the majority opinion does not now rely on this as a possible alternative to the use of deadly force, it is perhaps helpful to explain why shooting Hau-gen’s tires likely would not have been an appropriate or effective tactic to end the threat Haugen posed. Shooting Haugen's tires may not have disabled his car. Haugen still could have escaped — and endangered others — by driving with a flattened tire or two. More importantly, Officer Brosseau would have endangered herself and others had she shot at Haugen's tires. Police ammu *881 nition is designed to disable human beings, not to disable automobiles. Had Officer Brosseau fired at Haugen’s tires at close range, her bullets might have ricocheted, killing or injuring her or an innocent bystander. Even if Officer Brosseau’s bullets penetrated a tire, the bullets would not necessarily have come harmlessly to rest. The bullets could have continued their trajectory, ricocheting off the ground or automobile, killing or injuring the innocent. See Rick Parent, When Police Shoot, Police Magazine, Oct. 2000 ("Unlike the scenes depicted by ‘Hollywood,’ the 'shooting out of a tire’ can be a precarious and dangerous event.”). Officer Brosseau was wise not to shoot Haugen's tires. This "alternative” was no alternative at all.

. More candid than the majority opinion, Judge Reinhardt’s separate concurring opinion restates the majority’s holding in explicit terms. The concurring opinion states, "I join fully in Judge Fletcher's opinion for the court, on the understanding that officers may not use deadly force against an otherwise non-dangerous felony suspect simply because a chase of that suspect, high-speed or otherwise, would become or does become dangerous. Rather, as I understand the controlling law, if a high-speed chase of a nondangerous felony suspect would be, or becomes, dangerous, the officers must terminate the chase. In other words, the chase itself cannot create the danger that justifies shooting a suspect....” Supra at 876. The majority opinion never disavows Judge Reinhardt’s separately stated view, which, in any event, animates the majority opinion’s analysis.

. It is worth noting that the suspects in Scott, Smith, Cole, and Pace were suspected of crimes less serious and less dangerous than the burglary and battery of which Haugen was suspected. See Scott, 205 F.3d at 871 (suspect ignored a traffic sign); Smith, 954 F.2d at 344 (suspect ran a stop sign); Cole, 993 F.2d at 1330 (suspect drove through toll booth without paying); Pace, 283 F.3d at 1276 (suspect driving at night without headlights).

. Rather, I would say Officer Brosseau is very competent.

. Indeed, the Puyallup Police Department Firearms Review Board concluded, after an investigation, that Officer Brosseau's actions did not violate Washington law or police department policy.

. The majority does not disagree only with my dissenting views. The majority also disagrees with the considered wisdom of the Sixth, Eighth, and Eleventh Circuits, which have held there was no Fourth Amendment violation in circumstances similar to those presented here. See Scott, 205 F.3d at 877 ; Cole, 993 F.2d at 1330-33 ; Pace, 283 F.3d at 1281 .

.Despite my dissent, I do not disagree with Parts II.B. and II.C. of the majority opinion, affirming the district court’s summary judgment in favor of the City of Puyallup and the Puyallup Police Department, and reversing the district court’s dismissal of Haugen's state law claims. I disagree with Part II.A., the majority's Fourth Amendment analysis.