Seekamp v. Michaud

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1923

HENRY C. SEEKAMP, JR.,

Plaintiff, Appellant,

v.

RONALD MICHAUD, et al.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Cyr, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lynch, Circuit Judge.

Michael J. Waxman for appellant.

Leanne Robbin, Assistant Attorney General, with whom Andrew

Ketterer, Attorney General, and Peter J. Brann, Assistant Attorney

General, were on brief for appellees.

March 26, 1997

CYR, Circuit Judge. Appellant Henry C. Seekamp, Jr.,
CYR, Circuit Judge.

challenges a summary judgment ruling disallowing his civil rights

claims against various Maine State Police ("MSP") officers and

their supervisor, based on an alleged Fourth Amendment violation

stemming from a roadblock established by the defendant officers

on the Maine Turnpike. We affirm the district court judgment.

I
I

BACKGROUND
BACKGROUND

The material facts are not in dispute. At approximate-

ly 1:00 a.m. on July 14, 1994, Seekamp left his parents' resi-

dence in Scarborough, Maine, for the asserted purpose of picking

up the pieces of his former life in Arkansas, where his relation-

ship with a girlfriend and his career in the United States Air

Force were abruptly ended by an automobile accident in April,

1993, which left him with a brain injury.

As Seekamp was proceeding south through a 50 m.p.h.

zone on Route 1, his Chevrolet Monte Carlo was clocked at 63

miles per hour by Scarborough Police Sergeant Eugene O'Neill.

After Seekamp failed to heed Sergeant O'Neill's signal to stop,

O'Neill followed him into Saco where local police units joined

the pursuit. Undeterred, Seekamp not only ignored the pursuing

police vehicles but drove through the Maine Turnpike toll plaza

at Saco, and onto a southbound lane, without stopping.

Alerted by Sergeant O'Neill, the MSP assumed further

responsibility for the pursuit after learning that the driver of

the Monte Carlo had eluded a police officer a felony under

2

Maine law. See Me. Rev. Stat. Ann., tit. 29-A, 2501-A (1994)

(repealed and replaced on January 1, 1995 by P.L. 1995, Ch. 65,

codified as Me. Rev. Stat. Ann. tit. 29-A, 2414(3) (1996)).

Situated farther south near the Biddeford exit, MSP Trooper

Ronald Michaud took up the pursuit at approximately 1:35 a.m. In

an effort to force Seekamp to a stop, Trooper Michaud attempted a

"rolling roadblock" by driving in front of the Monte Carlo then

decelerating to force Seekamp to slow as well. Michaud soon

abandoned the rolling roadblock when Seekamp responded with

reckless attempts to get around the police cruiser.

At approximately 1:45 a.m., Trooper Michaud received a

radio dispatch to the effect that Seekamp's father had advised

that his brain-injured son was operating the Monte Carlo but was

unarmed and neither suicidal nor under the influence of alcohol

or drugs. Trooper Michaud considered the information both stale

and unverifiable because Seekamp, Sr., could not have known what

happened to his son after leaving the family home some 45 minutes

earlier.

Meanwhile, MSP Sergeant Steven Beal and MSP Trooper

Thomas Arnold had joined the pursuit north of the Wells exit.

During this phase, Seekamp continued his erratic driving and was

clocked by Trooper Michaud at speeds up to 97 miles per hour.

About the same time and at Trooper Michaud's request, MSP Ser-

geant Beal directed MSP Trooper Larry McAfee to establish a

roadblock north of the York toll plaza.

The roadblock was set up approximately 800 feet north

3

of the York toll plaza, at the end of a 1500-foot straightaway.

First, Trooper McAfee commandeered a flatbed tractor-trailer unit

loaded with lumber sheathed in white plastic and directed that it

be parked across the three southbound travel lanes, with its cab

at the guardrail. Once in place, the tractor-trailer unit

extended almost entirely across the southbound travel lanes.

McAfee completed the blocking of the southbound travel lanes by

parking his police cruiser at the rear of the tractor-trailer

unit, with its headlights pointing north in the direction from

which Seekamp would be approaching.

After turning on the cruiser's headlights, blue lights,

and flashers, McAfee directed other tractor-trailers to park

along the breakdown lane parallel to the blocked travel lanes. A

fifty-foot gap was left between two of the tractor-trailer units

parked in the breakdown lane, to permit vehicular traffic to

proceed onto the breakdown lane and around the roadblock at slow

speed, with police assistance. The headlights of the tractor-

trailer unit at the northern end of the fifty-foot gap illuminat-

ed the avenue of vehicular egress along the breakdown lane.

The entire roadblock area was brightly illuminated by

overhead street lights, the lights from Trooper McAfee's cruiser,

and the headlights of the commandeered tractor-trailer blocking

the southbound travel lanes. In addition, upon arrival at the

roadblock site to assist Trooper McAfee, MSP Trooper Kevin Curran

parked his cruiser in a southbound travel lane with its flashers

on and its headlights directed at the roadblock as well.

4

What with the bright white plastic sheathing around the

lumber on the tractor-trailer unit blocking the southbound travel

lanes, the roadblock area was visible from approximately 1500

feet along the straightaway approaching the York toll plaza.1 As

the Monte Carlo approached the roadblock, it appeared to brake

several times yet failed to come to a complete stop even though

the pursuing police cruisers had slowed to allow Seekamp room to

maneuver. Ultimately, it collided with the rear axle of the

tractor-trailer unit parked across the southbound travel lanes,

causing Seekamp a hairline fracture of the hip and a severe

facial laceration.

Seekamp brought suit under 42 U.S.C. 1983 against the

subordinate MSP defendants, alleging Fourth Amendment violations;

and against MSP Chief Alfred Skofield, Jr., for failure to

provide adequate training and supervision. The district court

awarded summary judgment to all defendants on the alternative

grounds that the roadblock was reasonable and all defendants were

entitled to qualified immunity. Seekamp v. Michaud, 936 F. Supp

23, 28-30 (D. Me. 1996).

1Defendants produced the uncontroverted affidavit of an
expert who attested that a motor vehicle traveling at 100 miles
per hour can come to a stop within 400 feet. He opined that
there was ample room for Seekamp to bring the Monte Carlo to a
full stop without contacting the roadblock. Moreover, the record
reflects that Seekamp did slow to between 35 and 50 m.p.h. as he
approached the roadblock. Finally, Seekamp testified at deposi-
tion that he could have stopped the Monte Carlo but for the fact
that its brakes were not functioning properly.

5

II
II

DISCUSSION2
DISCUSSION

1. Subordinate MSP Defendants
1. Subordinate MSP Defendants

Seekamp claims the subordinate MSP defendants violated

his Fourth Amendment right to be free from unreasonable seizures

of his person. Since Seekamp acknowledges probable cause for a

warrantless arrest, we need only determine whether the roadblock

effected a Fourth Amendment seizure and, if so, whether it was

reasonable.3

A. Did the Roadblock Effect a Fourth Amendment Seizure?
A. Did the Roadblock Effect a Fourth Amendment Seizure?

The defendants contend that the roadblock did not

constitute a Fourth Amendment seizure because it permitted

vehicular traffic to maneuver through the fifty-foot opening

designedly left between two of the tractor-trailer units parked

in the breakdown lane to the right of the westernmost, southbound

2We review a grant of summary judgment de novo. Sanchez v.

Alvarado, 101 F.3d 223, 227 (1st Cir. 1996). The district court

will be affirmed if "the pleadings, depositions, answers to
interrogatories, and the admissions on file, together with the
affidavits, if any, show that there is no genuine issue of
material fact, and that the moving party is entitled to judgment
as a matter of law." Fed. R. Civ. P. 56(c).

3As eluding a police officer is a felony, see Me. Rev. Stat.

Ann. tit. 29-A, 2501-A (1994), and Seekamp had been observed
doing so, see supra at p. 2, there was probable cause for a

warrantless arrest. See United States v. Sepulveda, 102 F.3d

1313, 1316 (1st Cir. 1996) ("[P]robable cause requires only that
the police have 'reasonable grounds to believe' that [the sus-
pect] had committed [a] crime."); see also Joyce v. Town of

Tewksbury, 104 F.3d 507, 510-11 (1st Cir. 1997) (upholding

warrantless arrest based on probable cause in exigent circum-
stances such as pursuit of fleeing felon); Me. Rev. Stat. Ann.
tit. 17-A, 15 (A)(3) (West Supp. 1996) (permitting warrantless
arrest by police officer with probable cause to believe arrestee
committed or is committing Class C crime).

6

travel lane. We do not agree.4

Almost a decade ago, the Supreme Court dealt with a

vehicular collision involving a so-called "deadman's roadblock,"

designed and constructed to block off an entire roadway by

placing an unilluminated tractor-trailer unit just beyond a curve

and locating a police cruiser directly in front of the roadblock

with its headlights aimed at the oncoming target vehicle, thereby

blinding the driver to the impassable highway obstruction just

around the curve. Brower v. Inyo County, 489 U.S. 593, 594

(1989). Brower nevertheless enunciates a rule that renders its

egregious facts largely immaterial to the required Fourth Amend-

ment inquiry into whether a roadblock "seizure" has occurred.

Writing for the Court, Justice Scalia explained that a

Fourth Amendment seizure occurs "only when there is a governmen-

tal termination of freedom of movement through means intentional-

ly applied," id. at 597; see also Landol-Rivera v. Cruz Cosme,

906 F.2d 791, 795 (1st Cir. 1990) (same), explaining that "it

[is] enough for a seizure that a person be stopped by the very

instrumentality set in motion or put in place to achieve that

4We note that a great many 1983 claims are resolved under
the doctrine of qualified immunity, see, e.g., Hegarty v.

Somerset County, 53 F.3d 1367, 1379, 1381 (1st Cir.), cert.

denied, 116 S. Ct. 675 (1995), without considering their consti-

tutional merit. Our most recent decision involving an alleged
seizure by roadblock, Horta v. Sullivan, 4 F.3d 2, 15 (1st Cir.

1993) (declining to consider whether partial roadblock consti-
tuted a seizure), was such a case. With that constitutional
issue squarely presented in the case now before us, however, we
take the occasion to discuss the merits in some detail with a
view to affording a modicum of concrete guidance not often
warranted in our earlier cases.

7

result." Brower, 489 U.S. at 599. The majority opinion went on

to say:

[A] roadblock is not just a significant show
of authority to induce a voluntary stop, but
it is designed to produce a stop by physical
impact if voluntary compliance does not oc-
cur. It may well be that respondents here
preferred, and indeed earnestly hoped, that
Brower would stop on his own, without strik-
ing the barrier, but we do not think it prac-
ticable to conduct such an inquiry into sub-
jective intent. Nor do we think it possible,
in determining whether there has been a sei-
zure in a case such as this, to distinguish
between a roadblock that is designed to give
the oncoming driver the option of a voluntary
stop (e.g., one at the end of a straight-

away), and a roadblock that is designed pre-
cisely to produce a collision (e.g., one

located just around a bend).

Id. at 598 (citations omitted).

Thus, for purposes of determining whether the roadblock

in this case worked a Fourth Amendment seizure under Brower, the

controlling consideration is not whether it was brightly illumi-

nated, located at the end of a long straightaway, or afforded a

restrictive avenue of egress.5 Rather, it constituted a Fourth

Amendment seizure because Seekamp "was meant to be stopped by the

physical obstacle of the roadblock and . . . he was so

stopped." Id. at 599.6

5The district court found that "[t]he escape route consisted
of making a 90-degree turn into a corridor []invisible to oncom-
ing traffic." Seekamp, 936 F. Supp. at 28 n.5. Thus, even

though the entrance to the invisible corridor was approximately
50 feet wide, it was necessary for McAfee to point it out to
approaching vehicles. Id. These findings are not in dispute.

6The dictum in Horta v. Sullivan, 4 F.3d at 15 ("It may be

that the illuminated blocking of a single lane at a point some
distance from where the block could be seen by the pursued

8

The Brower standard for determining whether a Fourth

Amendment seizure has occurred applies whenever "there is a

governmental termination of freedom of movement through means

intentionally applied." Id. at 597 (emphasis omitted). Thus,

for example, if the MSP troopers had resorted to some other

method, such as the use of spike mats, a Fourth Amendment seizure

would have occurred provided Seekamp was "stopped by the very

instrumentality set in motion or put in place to achieve that

result." Id. at 599. See also Landol-Rivera, 906 F.2d at 796

("It is intervention directed at a specific individual that

furnishes the basis for a Fourth Amendment claim.").

B. Did the Roadblock Effect an Unreasonable Seizure?
B. Did the Roadblock Effect an Unreasonable Seizure?

We determine the "reasonableness" of a Fourth Amendment

seizure by balancing "'the nature and quality of the intrusion on

the individual's Fourth Amendment interests' against the counter-

vailing governmental interests at stake." Graham v. Connor, 490

U.S. 386, 396 (1989) (quoting Tennessee v. Garner, 471 U.S. 1, 8

(1985)). The Fourth Amendment reasonableness test requires

careful attention to the circumstances in the particular case.

McCabe v. Life-Line Ambulance Serv., Inc., 77 F.3d 540, 546 (1st

Cir.), cert. denied, 117 S. Ct. 275 (1996). Moreover, "a viable

excessive force claim must demonstrate that the police defen-

vehicle would not amount to a seizure."), relied on by appellees,
not only describes a distinctively different roadblock, but is
prefaced by the explicit observation that the court did not need
to decide whether "this partial roadblock amounted to a seizure
under the Fourth Amendment[,]" id., because defendants were

entitled to qualified immunity. Id. at 9, 11-15.

9

dant['s] actions were not objectively reasonable, viewed in light

of the facts and circumstances confronting him and without regard

to his underlying intent or motivation." Alexis v. McDonald's

Restaurants of Massachusetts, Inc., 67 F.3d 341, 352 (1st Cir.

1995). See also Graham, 490 U.S. at 397.

Graham identifies three factors for evaluating whether

the force used to effect a seizure was objectively reasonable:

(1) the severity of the crime, (2) whether there was "an immedi-

ate threat to the safety of the officers or others"; and (3)

whether the suspect was, inter alia, "actively resisting arrest

or attempting to evade arrest by flight." Id. at 396. See

Alexis, 67 F.3d at 352-53. Under these standards, we conclude

that the district court correctly ruled that no rational jury

could have found this roadblock unreasonable in the circumstanc-

es. See Seekamp, 936 F. Supp. at 28.

Seekamp contends that the roadblock was set up in a

manner likely to kill him. See Brower, 489 U.S. at 599 (noting

that the potential for recovery by Brower arose "only because the

unreasonableness . . . allege[d] consist[ed] precisely of setting

up the roadblock in such a manner as to be likely to kill him.").

In that event, he argues, the more particularized analysis

employed in Garner, 471 U.S. at 11, prohibiting deadly force

against fleeing suspects who pose no immediate danger to the

officers or the public, displaces the Graham analysis. We need

only consider the evidence material to the threshold requirement

that the roadblock be shown to have been set up in a manner

10

likely to kill Seekamp.

Unlike the "deadman's roadblock" in Brower, 489 U.S. at

594 (unilluminated roadblock hidden beyond sharp curve), the

Seekamp roadblock was brightly illuminated and located at the end

of a long straightaway. The undisputed evidence established that

it was visible from approximately 1500 feet to the north and that

the Monte Carlo could have been brought to a complete stop

without contacting the roadblock equipment but for its malfunc-

tioning brakes. An adequate corridor for circumvention, though

not readily apparent to vehicles approaching at excessive speed,

had enabled many motorists to bypass the roadblock before Seekamp

arrived.7 The Seekamp roadblock thus stands in marked contrast

to the "deadman's roadblock" in Brower and the bullet which

stopped the fleeing suspect in Garner. Compare Donovan v. City

of Milwaukee, 17 F.3d 944, 949-50 (7th Cir. 1994) (differentiat-

ing, based on relative likelihood of death or serious injury,

between the nondeadly force employed by ramming a police cruiser

into a speeding car and the deadly force employed by driving a

cruiser into a speeding motorcycle).

At the time Trooper McAfee established the roadblock,

there existed probable cause to believe that Seekamp was a

fleeing felon who had eluded local law enforcement officers in

Scarborough and Saco and continued to elude the pursuing MSP

7Even though the district court found the roadblock reason-
able without regard to the corridor designedly left to permit
safe passage for vehicles traveling at slow speed, see Seekamp,

936 F.Supp at 29, its existence, whether or not determinative, is
a circumstance material to the reasonableness of the roadblock.

11

troopers, see Me. Rev. Stat. Ann., tit. 29-A, 2501-A (1994)

(class C crime to elude officer at reckless speeds resulting in

chase); see also Me. Rev. Stat. Ann. tit. 17-A, 1252(2)(C)

(1964) (class C crime punishable by five years' imprisonment).

Seekamp committed lesser crimes as well, which nonetheless

endangered the pursuing officers and the traveling public:

driving at 97 m.p.h. in a 65 m.p.h. zone on the Maine Turnpike,

see Me. Rev. Stat. Ann. tit. 29-A, 2074(3) (West Supp. 1996)

(class E crime to exceed posted speed limit by more than 30

m.p.h.), and driving to endanger by maneuvering to evade the

rolling roadblock, see Me. Rev. Stat. Ann. tit. 29-A, 2413

(class E crime) (1964); see also Me. Rev. Stat. Ann. tit. 17-A,

1252(2)(E) (1964) (class E crimes punishable by six months'

imprisonment). Moreover, Seekamp had been evading apprehension

throughout the chase. See Graham, 490 U.S. at 396 (evading

arrest by flight a factor in determining reasonableness of

seizure). Thus, the factors for determining reasonableness under

Graham all weighed heavily in favor of employing nondeadly force

to contain Seekamp.

Finally, even assuming the information transmitted to

Trooper Michaud regarding the identity and condition of the

driver of the Monte Carlo was neither stale nor unverifiable, the

outcome under Graham would not be altered. Relying on firsthand

observation and eyewitness reports from other law enforcement

officers engaged in the pursuit, Trooper Michaud had probable

cause to believe that a fleeing felon, driving at excessive

12

speeds, had resorted to reckless efforts to evade the rolling

roadblock and refused to stop. In these circumstances the

information regarding the purported identity and condition of the

person driving the Monte Carlo could not have affected the Graham

analysis because the officers were faced with a situation which

fully warranted a nondeadly roadblock based on the available

objective information and the serious danger posed, without

regard to the particular influences prompting the driver's

dangerous actions. See id. at 396-97.

The Supreme Court has held, in a closely analogous

context, that the constitutionality of a seizure based simply on

reasonable suspicion does not depend exclusively on whether the

police employed the "least intrusive [investigatory] means"

available. United States v. Sokolow, 490 U.S. 1, 11 (1989) ("The

reasonableness of the officer's decision to stop a suspect does

not turn on the availability of less intrusive investigatory

techniques."). See also United States v. LaFrance, 879 F.2d 1, 5

(1st Cir. 1989) (same). As the Court has explained:

A creative judge engaged in post hoc evalua-
tion of police conduct can almost always
imagine some alternative means by which the
objectives of the police might have been
accomplished. But "[t]he fact that the pro-
tection of the public might have been accom-
plished by less intrusive means does not
itself render the search unreasonable." The
question is not simply whether some other
alternative was available, but whether the
police acted unreasonably in failing to rec-
ognize or pursue it.

United States v. Sharpe, 470 U.S. 675, 686-87 (1985) (citations

omitted) (upholding duration of investigatory stop as reason-

13

able). Moreover, Seekamp proffers no reasonable alterna-

tive for resolving the safety threat posed by his persistent,

irresponsible conduct. True, the defendant officers never

resorted to the alternative Seekamp now proposes: abandoning

their pursuit. Implicit in this suggestion, of course, is the

premise that fleeing felons must be allowed to proceed on their

reckless way without answering for their criminal conduct despite

the ongoing risk to the traveling public. The defendant officers

recognized that inaction on their part was not a responsible

option in the circumstances. We do likewise by acknowledging

that their actions in setting up the roadblock and effecting the

seizure through nondeadly force were reasonable.8

3. Supervisory Liability
3. Supervisory Liability

Seekamp contends that MSP Chief Skofield failed to

provide the defendant MSP troopers with adequate training and

supervision. Supervisory liability under 42 U.S.C. 1983 cannot

be predicated on a respondeat superior theory, Hegarty, 53 F.3d

at 1379, but "'only on the basis of [the supervisor's] own acts

or omissions[,]'" Sanchez v. Alvarado, 101 F.3d 223, 227 (1st

Cir. 1996) (quoting Figueroa v. Aponte-Roque, 864 F.2d 947, 953

(1st Cir. 1989)) (alteration in original). As we pointed out

almost a decade ago, a supervisor:

can be held liable . . . if (1) the behavior
of [his] subordinates results in a constitu-
tional violation, and (2) the [supervisor]'s

8Therefore, we need not address the qualified immunity
claims. See Horta, 4 F.3d at 9 (bypassing qualified immunity

claims in favor of decision on merits).

14

action or inaction was "affirmative[ly]
link[ed]" to that behavior in that it could
be characterized as "supervisory encourage-
ment, condonation or acquiescence" or "gross
negligence amounting to deliberate indiffer-
ence."

Lipsett v. University of Puerto Rico, 864 F.2d 881, 902 (1st Cir.

1988) (citations omitted). Moreover, the indifference required

to support supervisory liability under section 1983 must be

"deliberate, reckless or callous." Gutierrez-Rodriguez v.

Cartagena, 882 F.2d 553, 562 (1st Cir. 1989). Thus, the "affir-

mative link" required between the action or inaction of a super-

visor and the behavior of subordinates "contemplates proof that

the supervisor's conduct led inexorably to the constitutional

violation." Hegarty, 53 F.3d at 1380.

The present claim fails at a primitive level, as it

meets neither test under Lipsett. First, because the behavior of

the subordinate MSP officers was reasonable in the circumstances,

see supra pt. II, B, the required predicate a constitutional

violation by the subordinate cannot be established. See

Lipsett, 864 F.2d at 902. Second, Seekamp adduced no evidence of

supervisory indifference to proper police training on the part of

defendant Skofield, let alone a level of indifference sufficient

to sustain a section 1983 supervisory liability claim. See

Sanchez, 101 F.3d at 229 (mere laxity insufficient to establish

1983 supervisory liability). Quite the contrary, it is undisput-

ed that each subordinate defendant received training on high

speed pursuit and roadblocks, including a refresher course on MSP

high speed pursuit policy, within the year preceding the incident

15

sub judice which itself reflected no inadequate training whatso-

ever.

III
III

CONCLUSION
CONCLUSION

The district court judgment is affirmed.
affirmed

16