Graves v. Thomas

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
June 21, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

DELISE G RA VES; JERRY GRA VES,
Individually and as Personal
Representatives of Jerred Graves,
deceased,

Plaintiffs - Appellants,

v. No. 05-7084

KERM IT THOM AS, Individually and
in his official capacity as Chief of
Police of the City of Haskell,
Oklahoma; JO SH FORD, Individually
and in his Official Capacity as Police
Officer of the City of Haskell,
Oklahoma,

Defendants - Appellees.

Appeal from the United States District Court
for the E astern District of Oklahom a
(D .C . N o. 04-C IV -478-W H )

M artha J. Cherbini (Albert R. M atthews and Juliet N. Brennan with her on the
briefs) Bonds & M atthew s Law Firm PLLC, M uskogee, Oklahoma, for Plaintiffs -
Appellants.

Betty Outhier W illiams, Gage & W illiams, M uskogee, Oklahoma, and Scott B.
W ood, W ood, Puhl & W ood, P.L.L.C., Tulsa, Oklahoma, for Defendants -
Appellees.
Before K ELL Y, M cKA Y and O’BRIEN, Circuit Judges.

O’BRIEN, Circuit Judge.

Jerred Graves w as killed when he lost control of his vehicle while trying to

elude police officer Josh Ford at night on country roads at very high rates of

speed. His parents, Delise and Jerry Graves, brought an action against Ford and

Police Chief Kermit Thomas of the Haskell, Oklahoma Police Department, both

individually and in their official capacities, pursuant to 42 U.S.C. § 1983. They

claim Officer Ford’s deliberate and unwarranted initiation of a high speed chase

resulting in Jerred’s death was a violation of Jerred’s Fourth and Fourteenth

Amendment rights. The district court concluded no constitutional violation

occurred and granted summary judgment in favor of all defendants. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM .

I. Standard of Review

W e review the district court's grant of summary judgment de novo. Dubbs

v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003). 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). In applying this standard,

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“we examine the record and any reasonable inferences drawn therefrom in the

light most favorable to the non-moving party.” Dubbs, 336 F.3d at 1201.

In response to the Graves’ claims against them in their individual

capacities, Officer Ford and Chief Thomas asserted a defense of qualified

immunity. This defense shields government officials performing discretionary

functions from liability “if their conduct does not violate clearly established

rights of which a reasonable government official would have known.” Perez v.

Unified Gov’t of Wyandotte County/Kansas City, Kan., 432 F.3d 1163, 1165 (10th

Cir. 2005). W hether a defendant is entitled to qualified immunity is a two-step

process. Siegert v. Gilley, 500 U.S. 226, 232 (1991). First, we must determine

whether Plaintiffs “ha[ve] asserted a violation of a constitutional right at all.” Id.

at 232; see M oore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006). If so, we

decide whether “that right was clearly established such that a reasonable person in

the defendant's position would have known that [his] conduct violated that right.”

Christiansen v. City of Tulsa, 332 F.3d 1270, 1278 (10th Cir. 2003) (citation

omitted). “[W ]e need not reach the question of whether the individual defendants

are entitled to qualified immunity if we determine, after a de novo review, that

plaintiffs failed to sufficiently allege the violation of a constitutional right.” Id.

The Graves’ claim against Officer Ford and Chief Thomas in their official

capacities is actually a claim against the town of Haskell (Haskell). They allege

Haskell’s failure to adequately train and discipline Officer Ford contributed to his

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eagerness to engage in the high-speed chase. However, as a municipality, Haskell

will not be held liable under § 1983 solely because its employees inflicted injury.

M onell v. Dep't of Social Servs. of the City of New York, 436 U.S. 658, 694

(1978). Rather, to establish municipal liability, a plaintiff must show: 1) the

existence of a municipal policy or custom and 2) a direct causal link between the

policy or custom and the injury alleged. City of Canton, Ohio v. Harris, 489 U.S.

378, 385 (1989). W hen the claim is a failure to act, the plaintiff must

demonstrate the municipality's inaction was the result of “‘deliberate

indifference’ to the rights of its inhabitants.” Id. at 389. In addition, a

municipality may not be held liable where there was no underlying constitutional

violation by any of its officers. City of Los Angeles v. Heller, 475 U.S. 796, 799

(1986).

II. Background

H askell, O klahoma, is a small town of approximately 2,000 people. On

November 6, 2000, Josh Ford was hired as a police officer upon the

recommendation of Police Chief Thomas. Officer Ford was CLEET certified at

the time he was hired and had previously worked as a deputy sheriff for the

M uskogee County Sheriff’s Office. 1 Not long after Ford began w orking as a

1
“CLEET” is the acronym for Oklahoma’s “Council on Law Enforcement
Education and Training,” which certifies the mandatory education for Oklahoma
law enforcement officers. O fficer Ford was employed with the M uskogee County
Sheriff’s Office from July 26, 1999, through November 3, 2000. He completed
his CLEET training on September 7, 2000.

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patrolman, some of the citizens of Haskell became concerned with his zealous

enforcement of Haskell’s traffic laws. In particular, some parents of the local

youth complained that Officer Ford was harassing the teenagers in town by

following them w ith his headlights off and engaging in high-speed chases outside

his jurisdiction. 2 Paradoxically, the record is devoid of any evidence of parental

attempts to restrain their teenagers.

It appears one of O fficer Ford’s favorite targets was Charles G inn (Ginn),

Jerred Graves’ best friend. Ginn drove his mother’s 1996 silver Firebird with the

license plate “LORRI.” On at least three previous occasions, Ginn and Officer

Ford engaged in a car chase which resulted in Ginn outrunning the police officer.

At one point, Officer Ford informed Jerred and Ginn, “I’m going to get you, one

way or the other.” (Appx. at 198-99.)

After learning of O fficer Ford’s proclivity to engage in pursuit of Haskell’s

young people, H askell Reserve Police Chief, Dallas M athews, told Officer Ford to

stop chasing the kids. He advised Officer Ford to chase them for a short time, let

them go and w ait until they came back to town to handle any traffic infraction

which may have occurred. M athews testified he gave this advice shortly before

April 2, 2001. In addition, M r. Graves testified Chief Thomas stated shortly after

2
Lori M cVay, Charles Ginn’s mother, testified that she and her husband
complained to Chief Thomas about this harassment of the local boys. Her husband
told Chief Thomas: “This is going to keep on and, you know, one of these boys
[is] going to get killed. Something is going to happen.” (A ppx. at 384-85.)

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Jerred’s death that Chief Thomas had “told [Officer Ford] not to chase those boys,

that he could get them w hen they came back to town. If they’ve got a ticket

coming, to give it to them, or call their parents . . . . [O fficer Ford] just didn’t

listen to [me].” (A ppx. at 230).

At approximately 11 p.m. on April 2, 2001, Jerred and Ginn were on their

way home from a friend’s house. Ginn was driving his mother’s silver Firebird

and Jerred was driving an identical Firebird owned by his friend, Kari Beede,

with the license plate “KJS-CAR.” According to Ginn, he pulled over to the side

of the road and Jarred pulled up beside him. Ginn told Jarred to turn his lights off

because Ginn was late getting home. Jerred complied and the two cars continued

down the road with Jerred in the lead until just before Ginn’s driveway. At that

point, Officer Ford pulled around Ginn and behind Jerred with his lights off. 3

Officer Ford then turned on his overhead lights. Jerred took off and Officer Ford

pursued him. Ginn followed them to the city limits and turned around.

According to O fficer Ford, he immediately radioed the M uskogee Sheriff’s

Office informing dispatch he was in pursuit. The Sheriff Office’s log sheet

indicates that Officer Ford reported he was in pursuit of a car with the license

plate “LORRI.” Ford chased Jerred to a point where the highway curved and

3
Officer Ford claims he pulled behind Jerred’s vehicle because he
observed it . . . “spinning [] in three 360-degree circles.” (Appx. at 118.) Because
Ford’s version of the events is at odds with that of the Graves we presume the
Graves’ version is correct for summary judgment analysis.

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intersected a dirt road. Jerred continued dow n the dirt road, kicking up a dust

trail which slowed Ford. By the time Ford got to the end of the dirt road where it

again intersected with the paved highway, he had lost track of Jerred. He shut off

his engine, lights and siren and rolled down the window to listen for the sound of

tires. (Appx. at 186-87.) W hen he heard the sound of a speeding car to the north,

he restarted his car and equipment and headed north.

In the meantime, Jerred was approaching an intersection with his lights off

at a speed estimated at over 100 miles an hour. U nable to see Jerred’s unlit car, a

white truck pulled out and turned north-bound on the highway. Coming from

behind, Jerred swerved to avoid the truck, lost control, overcorrected and hit an

obstacle on the other side of the highway. His car went airborne, flipped and

rolled into a field. The occupants of the white truck and a second vehicle pulled

to the side of the road to give assistance. Officer Ford arrived shortly thereafter

and called for rescue. Jerred was life-flighted to St. John M edical Center in

Tulsa, where he died on April 3, 2001.

Although the H askell Police Department had a pursuit policy, Officer Ford

admitted he had never read it. Officer Ford had, however, taken a “Law

Enforcement Driver Training” course during his CLEET training. Officer Ford

resigned from the Haskell Police Department on April 24, 2001.

The Graves filed a complaint on October 25, 2004, alleging violations of

the Fourth Amendment, the Fourteenth Amendment and the failure to provide

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adequate training and/or supervision. Officer Ford and Chief Thomas filed

motions for summary judgment. Both asserted qualified immunity, arguing no

constitutional violation occurred. The district court determined the G raves’

Fourth Amendment claim was precluded by established precedent. 4 The court

further concluded Ford’s behavior was not arbitrary and the facts did not shock

the conscience of the court, thereby negating the Graves’ Fourteenth Amendment

substantive due process claim and warranting summary judgment in Ford’s favor.

The district court then granted summary judgment to Chief Thomas and Haskell

because they had no liability in the absence of a violation of Jerred’s

constitutional rights. This timely appeal followed.

III. Discussion

The Graves challenge only the district court’s conclusion that they failed to

raise a material issue of fact as to whether the actions of Officer Ford and, in turn,

Chief Thomas and Haskell, violated Jerred’s substantive due process rights under

the Fourteenth Amendment.

The Fourteenth Amendment provides that no person shall be deprived of

“life, liberty, or property, w ithout due process of law.” U.S. Const. amend. X IV ,

§ 1. “[T]he touchstone of due process is protection of the individual against

4
C alifornia v. H odari D ., 499 U.S. 621, 629 (1991) (Failure to comply
with an order to halt was not a seizure.) ; County of Sacramento v. Lewis, 523
U.S. 833, 845 (1998) (“[N]either usage nor comm on-law tradition makes an
attempted seizure a seizure.”) (quoting Hodari D ., 499 U.S. at 626).

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arbitrary action of government . . . whether the fault lies in a denial of

fundamental procedural fairness . . . or in the exercise of power without any

reasonable justification in the service of a legitimate governmental objective.”

Lewis, 523 U.S. at 845-46 (internal quotations and citations omitted).

“Substantive due process claims are not based on state law but are founded upon

deeply rooted notions of fundamental personal interests derived from the

Constitution.” Hennigh v. City of Shawnee, 155 F.3d 1249, 1256 (10th Cir. 1998)

(quotation and citation omitted).

“The ‘ultimate’ standard for determining whether there has been a

substantive due process violation is whether the challenged government action

shocks the conscience of federal judges.” M oore, 438 F.3d at 1040 (internal

quotations omitted). W hen applying this standard, “we must bear in mind three

basic principles highlighted by the Supreme Court in evaluating substantive due

process claims: (1) the need for restraint in defining their scope; (2) the concern

that § 1983 not replace state tort law; and (3) the need for deference to local

policymaking bodies in making decisions impacting upon public safety.” Uhlrig

v. Harder, 64 F.3d 567, 573 (10th Cir. 1995) (internal citations omitted); see

Radecki v. Barela, 146 F.3d 1227, 1229-30 (10th Cir. 1998). Although “the

conscience-shocking standard is difficult to define and to pinpoint,” the standard

is not met by official negligence. Id.

The Supreme Court’s decision in Lewis is the starting point when

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considering a substantive due process claim resulting from a highspeed chase. In

Lewis a California patrolman pursued two teens on a motorcycle when they

refused to heed his command to stop. 523 U.S. at 836. “The motorcycle and

patrol car reached speeds up to 100 miles an hour, with [the officer] following at

a distance as short as 100 feet; at that speed, his car would have required 650 feet

to stop.” Id. at 837. W hen the motorcycle driver made a sharp turn, the

passenger fell off. The officer, unable to stop, hit and killed the passenger. Id.

Acknowledging substantive due process may apply to situations where an

executive abuse of power has occurred, even though there was no seizure, the

Court nevertheless concluded the facts in Lewis did not establish the required

intent. Id. at 836. It concluded a “cognizable level of executive abuse of power

[is] that which shocks the conscience,” id. at 846, and police behavior in high-

speed pursuits only rises to that level when there is “a purpose to cause harm

unrelated to the legitimate object of arrest,” id. at 836, “or to worsen [the

victim’s] legal plight.” Id. at 854. Applying this standard, the Court determined

the officer was presented with a violation of the law for which he was not to

blame and to which his reaction was “instinctive.” Id. at 855. The Court

recognized that prudence may have counseled a different response, but there was

“no reason to believe that [the officer’s actions] were tainted by an improper or

malicious motive. . . .” Id.

Lewis recognized actions demonstrating the level of culpability required in

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substantive due process claims must be considered in the context of the claim,

saying, “[d]eliberate indifference that shocks in one environment may not be so

patently egregious in another, and our concern with preserving the constitutional

proportions of substantive due process demands an exact analysis of

circumstances before any abuse of power is condemned as conscience shocking.”

Id. at 850. “[W]hen unforeseen circumstances demand an officer's instant

judgment, even precipitate recklessness fails to inch close enough to harmful

purpose to spark the shock that implicates the large concerns of the governors and

the governed.” Perez, 432 F.3d at 1166 (internal quotations omitted). However,

“when actual deliberation is practical,” we will employ a “deliberate indifference”

standard. Lewis, at 851; Radecki, 146 F.3d at 1231.

The Graves allege the district court ignored the most critical question of

fact in this case–Officer Ford’s motive in attempting to stop Jerred. The Graves

point to Ginn’s testimony denying Jerred had been driving recklessly prior to the

stop 5 and the evidence of Ford’s predilection to “harass” the teenagers, especially

5
Ginn testified:
I pulled over to the side of the road, and Jerred pulled next to me. I
told him to turn his lights out because I was late getting home. And
then he w ent on right – he w ent on. Right before w e got to M om’s
driveway here come[s] Josh [Officer Ford] around me with his lights
off and got right on Jerred, and flipped his top lights on Jerred.

(Appx. at 206.) Thus, according to Ginn, Jerred was driving on the street at
approximately 11 p.m. with his lights out in violation of 47 Okla. Stat. § 12-201
(1961) (all vehicles on a public road must display lights “[a]t any time from
one-half (1/2) hour after sunset to one-half (1/2) hour before sunrise, also referred

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Ginn, by following them w ith his headlights off and engaging them in high-speed

chases. They highlight Officer Ford’s alleged statement that he was “going to

get” Jerred and Ginn “one w ay or the other” and the inference that Officer Ford

actually thought he was chasing Ginn when he reported the wrong license plate to

the M uskogee Sheriff’s dispatch. The Graves contend this evidence is sufficient

for a jury to infer the attempted traffic stop was intentionally designed to induce a

high speed chase, demonstrating Officer Ford’s intent to harm and/or worsen

Jerred’s legal plight. They also maintain Jerred’s later legal violations cannot

legitimize such pursuit because he was merely exercising his common-law right to

resist an unlaw ful arrest. As a result, the Graves argue the district court erred in

requiring they show both the requisite intent and that Officer Ford’s actions rose

to a level which “shocks the conscience.” An “exact analysis” of the G raves’

claims reveals two separate decisions at issue here–the decision to attempt a

traffic stop and the decision to engage in pursuit.

A. The Decision to M ake a Traffic Stop

Although it seems a bit far-fetched, for the purpose of summary judgment

we will assume a jury could believe Officer Ford’s testimony that Jerred did not

turn his lights off until Officer Ford pulled behind him, but not credit Officer

Ford’s testimony about Jerred’s reckless driving before the stop. So construed,

to in this chapter as nighttime.”). Officer Ford, however, stated Jerred
extinguished his lights immediately after Officer Ford turned on his overhead
lights. (A ppx. at 118).

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the decision to pull behind Jerred and turn on overhead lights was a product of

actual deliberation thus triggering a deliberate indifference analysis of Ford’s

mental state (looking for a purpose to cause harm unrelated to the legitimate

object of arrest). However, even assuming Ford was deliberately indifferent to

Jerred’s Fourteenth A mendment rights in attempting a traffic stop, his actions are

not conscience shocking.

Contrary to the Graves’ contention, a culpable mental state, alone, is

insufficient to establish a violation of substantive due process. Lewis, 523 U.S. at

847 n. 8 (to establish a substantive due process violation, plaintiffs must show

that “the behavior of the [] officer is so egregious, so outrageous, that it may

fairly be said to shock the contemporary conscience.”); Tonkovich v. Kan. Bd. of

Regents, 159 F.3d 504, 528 (10th Cir. 1998) (“[A] plaintiff must do more than

show that the government actor intentionally or recklessly caused injury to the

plaintiff by abusing or misusing government power.”) (citation omitted); Arm ijo

By & Through Chavez v. Wagon M ound Pub. Schs., 159 F.3d 1253, 1263 (10th

Cir. 1998) (“The key to the state-created danger cases . . . lies in the state actors'

culpable knowledge and conduct in affirmatively placing an individual in a

position of danger, effectively stripping a person of her ability to defend herself,

or cutting off potential sources of private aid.”) (emphasis added); see also

Terrell v. Larson, 396 F.3d 975, 981 (8th Cir. 2005) (“Not all deliberately

indifferent conduct is conscience shocking in the constitutional sense of the

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term.”).

The conduct resulting from Ford’s presumed culpable state of mind was

merely to pull up behind Jerred and turn on his overhead lights, nothing more.

Jerred knew Ford was acting as a police officer and nothing in the record suggests

the traffic stop placed Jerred in fear for his physical well-being. Cf. Checki v.

Webb, 785 F.2d 534, 535 (5th Cir. 1986) (“Neither Checki nor his driver knew

that the [tailgating] Oldsmobile was an unmarked state police vehicle, or that the

men inside were state troopers Allison and W ebb.”). Jerred alone made the

decision to flee, either to avoid an encounter with Ford (and, possibly, a traffic

ticket) or to instigate a round of high-speed cat and mouse. Ford may have

anticipated, even relished, Jerred’s irrational response to his presence, but he did

nothing to compel it. He cannot be held accountable for Jerred’s failure to

exercise reasonable self-restraint. That brings us to discussion of Ford’s second

decision, pursuit.

B. The Decision to Engage in Pursuit

The decision to pursue Jerred is squarely within the territory explored in

Lewis. As in Lewis, Officer Ford was faced with an unexplained flight from an

attempted traffic stop. Therefore, the Graves must show Officer Ford’s reaction

was motivated by “a purpose to cause harm unrelated to the legitimate object of

arrest” or w orsen Jerred’s legal plight. Lewis, 523 U.S. at 836, 854. The Graves

again point to their evidence that Officer Ford did not see a traffic violation prior

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to stopping Jerred and his statement that he “was going to get” Ginn and Jerred. 6

As explained above, Ford’s statement is insufficient to justify Jerred’s high-speed

flight. The Graves also contend “[t]here is absolutely no evidence in this case,

except for [] [Officer] Ford’s testimony, that Jerred committed any violation of

any law prior to [O fficer] Ford initiating the pursuit.” (A ppellant’s Br. at 11.)

W e disagree.

Ginn’s testified: “[a]nd [Ford] flipped his top lights on Jerred. And they

went out of town.” (Appx. at 206.) Because Ginn very carefully avoided any

discussion of Jerred’s specific conduct after Officer Ford turned on his overhead

lights, Ford’s testimony is undisputed. Ford said Jerred drove off without

headlights at a “high rate of speed” prior to pursuit. (Appx. at 118.) Thus, the

undisputed evidence demonstrates Jerred was in the process of violating traffic

laws and eluding a police officer at the time Ford initiated pursuit. The district

court considered the pursuit justified. Jerred supplied, in spades, a “legitimate

object of arrest” and the record fails to legitimately suggest an intent of Ford to

cause harm unrelated to the arrest.

6
The Graves attempt to shroud Ford’s statement w ith malevolent intent. A
more benign interpretation is at least as plausible— Ford hoped to catch and arrest
Jerred and Ginn in the commission of criminal acts (traffic laws included). Even
assuming Ford wanted to provoke Jerred into a reckless, high speed attempt to
elude him, that is not enough. It is also necessary that Ford intended (or, at least,
that it was highly probable, bordering on certainty) for Jerred to be harmed in the
process. On this record it stretches credulity beyond elastic limits to infer so
much from those words.

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 The Graves take issue with the district court’s conclusion that pursuit was

justified, arguing Jerred’s actions were acceptable efforts to resist Officer Ford’s

attempt to make an unlaw ful arrest and, given his legitimate resistance, pursuit

was not justified. Assuming, arguendo, that the Graves’ conclusion (officer may

not give chase) logically follows the premise (juvenile’s attempt to elude police

by engaging in illegal conduct is permissible), their justifications for Jerred’s

decision to elude Ford via reckless and high-speed flight falls short. W e begin by

noting a routine traffic stop is not equivalent to an arrest. United States v.

Bradford, 423 F.3d 1149, 1156 (10th Cir. 2005) (while “[a] traffic stop is a

‘seizure’ w ithin the meaning of the Fourth Amendment, . . . [w]e have held that a

routine traffic stop is more analogous to an investigative detention than a

custodial arrest. W e therefore analyze such stops under the principles developed

for investigative detentions set forth in Terry v. Ohio, 392 U.S. 1 (1968)”)

(internal quotations and citations omitted). 7 The G raves fail to cite to any case

7
Oklahoma recognizes a common-law right to resist arrest, but
differentiates between an attempted arrest and an investigatory detention. See
Castellano v. State, 585 P.2d 361 (O kla. Crim. App. 1978) (“If the officer is
momentarily detaining a person in order to make an inquiry so as to determine his
identity and obtain more information, and is in no way attempting to restrain him
of his liberty or take him into custody, then the stop does not constitute an arrest,
but, rather, is an investigatory detention.”). In this case, we need not determine
whether O klahoma would find the common-law right to resist arrest applies to
investigatory stops. However, the vast majority of states which have considered
the issue have either statutorily or judicially rejected a right to resist an
investigatory stop and, in many cases, the right to resist arrest in any situation.
See Faulkner v. State, 627 S.E.2d 423, 425 (Ga. Ct. App. 2006) (“W e do not leave
the determination of whether there is a legal basis for a traffic stop to the driver.

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law approving highspeed resistance to an attempted traffic stop initiated by a

uniformed officer in a marked police car. Indeed, the Supreme Court has advised:

W e do not think it desirable, even as a policy matter, to stretch the
Fourth Amendment beyond its words and beyond the meaning of
arrest . . . . Street pursuits always place the public at some risk, and
compliance with police orders to stop should therefore be
encouraged. Only a few of those orders, we must presume, will be
without adequate basis, and since the addressee has no ready means
of identifying the deficient ones it almost invariably is the
responsible course to comply.

H odari D ., 499 U.S. at 627.

Even if the O klahoma courts would extend the common-law right to resist

an unlawful arrest to a traffic stop, Jerred’s actions fell outside the parameters of

law ful resistance. The right to resist is limited to “such force as [is] absolutely

necessary to resist an attempted illegal arrest.” Bad Elk v. United States, 177

U.S. 529, 537 (1900). 8 Jerred’s actions after Officer Ford signaled Jerred to pull

To hold otherwise could encourage persons to resist the police and create
potentially violent and dangerous confrontations.”) (internal quotations and
citations omitted)); State v. Windus, 86 P.3d 384, 387 n.3 (Ariz. Ct. App. 2004);
State v. Sim s, 851 So.2d 1039, 1047 (La. 2003); State v. Howell, 782 N.E.2d
1066, 1067-68 (Ind. Ct. App. 2003); Com v. Hill, 570 S.E.2d 805, 808 (Va. 2002);
State v. Coleman, 630 N.W .2d 686, 697 (Neb. Ct. App. 2001); Abrams v. Walker,
165 F.Supp.2d 762, 767 (N.D.Ill. 2001); State v. Weigmann, 714 A.2d 841 (M d.
1998)(listing case cites and statutory authorities abolishing the right to resist
arrest in any circumstance); State v. Dawdy, 533 N.W .2d 551, 555-56 (Iowa
1995)(adopting the Eighth Circuit’s holding in United States v. Dawdy, 46 F.3d
1427 (8th Cir. 1995).
8
See also, Brown v, City of Oklahoma City, Okla., 721 P.2d 1348, 1352
(Okla. Civ. App. 1986) (In light of the police officer’s racist and egregious
behavior in effecting the illegal seizure of the plaintiff’s car and the plaintiff’s
arrest, the plaintiff’s “defiance of and interference with the wrecker driver's

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over w ere excessive and unnecessary under the circumstances. Nothing of record

suggests Jerred was going to be arrested and taken into detention. Rather, the

most dire consequence of the attempted stop prior to Jerred’s “resistance” was the

possibility of an allegedly unwarranted traffic violation–a matter that is normally

and dispassionately addressed in a courtroom. 9

The Graves also generally assert evidence of Officer Ford’s intent to

“worsen [Jerred’s] legal plight.” Assuming (without conceding) this argument

was adequately raised, we find the Eighth Circuit’s reasoning in Slusarchuk v.

Hoff persuasive:

W e decline to read the term expansively, as [the Graves] urge,
because every police pursuit is intended to "worsen [the] legal
plight" of the suspect by arresting him. Thus, a broad reading would
eviscerate the intent-to-harm standard . . ., at least in part, to sharply
limit substantive due process liability. Rather, we construe the term
as applying only to a narrow category of pursuits that reflect a
conscience-shocking motive beyond the realm of legitimate

molestation of her car was not excessive.”); Sandersfield v. State, 568 P.2d 313,
315 (Okla. Crim. App. 1977) (“[T]he right to resist an unlawful arrest is limited
and varies w ith the circumstances.”); Walters v. State, 403 P.2d 267, 275 (Okla.
Crim. App. 1965) (“The right to resist an unlawful arrest is limited and varies
with the circumstances.”); Billings v. State, 166 P. 904, 906 (Okl. Crim. App.
1917) (“If an attempted arrest be unlawful, the party sought to be arrested may
use such reasonable force, proportioned to the injury attempted upon him, as is
necessary to effect his escape, but no more; and he cannot do this by using, or
offering to use, a deadly weapon, if he has no reason to apprehend a greater injury
than a mere unlawful arrest.”).
9
The only testimony on this point is Officer Ford’s. In his deposition, he
was asked if, at the time he attempted to stop Jerred, he intended to give him a
ticket for reckless driving which Jerred could have paid and gone on. Ford
replied in the affirmative. (Appx. at 184.)

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 government action but do not involve an intent to inflict physical
harm. The pursuit in this case reflects no such motive.

346 F.3d 1178, 1183 (8th Cir. 2003), cert. denied, 541 U.S. 988 (2004).

The G raves also argue the district court erred in granting summary

judgment to Chief Thomas and Haskell. “A supervisor who is sued in his or her

personal capacity is entitled to invoke the defense of qualified immunity.” Hinton

v. City of Elwood, Kan., 997 F.2d 774, 783 (10th Cir. 1993). The plaintiff must

establish that the supervisor's conduct violated the law. Id. The Graves do not

claim Chief Thomas took any personal action against Jerred, but rather that Chief

Thomas failed to prevent Officer Ford from acting unconstitutionally. Because

we hold Officer Ford’s conduct was not unconstitutional, Chief Thomas did not

act unconstitutionally in failing to prevent such conduct. Id. Likewise, our

conclusion precludes the imposition of any liability against Haskell. Id. at 782

(“A municipality may not be held liable where there was no underlying

constitutional violation by any of its officers.”).

A FFIRME D.

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