concurring in part and dissenting in part:
I join all of the majority’s opinion except for its application of the fourth amendment. I believe the police roadblock operated to “seize” Brower, and accordingly I would give appellants an opportunity to show whether the “seizure” was accomplished in an unreasonable manner. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985).
Because the district court dismissed the plaintiffs’ first amended complaint for failure to state a claim, all the allegations in the complaint must be accepted as true and construed in the light most favorable to the plaintiffs. Plaine v. McCabe, 797 F.2d 713, 723 (9th Cir.1986).
Police officers suspected Brower of driving a stolen vehicle. A high speed chase ensued. During the chase, the officers set up a roadblock to force Brower to stop. The roadblock consisted of an eighteen-wheel tractor-trailer placed across both lanes of a highway and a police car parked 200 feet in front of the tractor-trailer in Brower’s approach path.
The complaint alleges that the officers “effectively concealed” the roadblock by parking the tractor-trailer behind a curve. The complaint also alleges that the police officers “blinded” Brower by shining police car headlights “directly into his eyes as he approached.” The blinding effect of the headlights, the complaint concludes, caused Brower to crash into the roadblock and sustain fatal injuries.
The majority concludes that the police officers failed to “seize” Brower when he crashed. The opinion suggests that the roadblock could not operate to “seize” Brower because he “consciously chose' to avoid official restraint” by attempting to flee the police. I submit that the majority’s analysis misapprehends the Supreme Court’s test for establishing whether a “seizure” has occurred under the fourth amendment.
1. Seizure
A “seizure” occurs “whenever a police officer ... restrains [an individual’s] free*549dom to walk away.” Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968). Under this definition, there is no question that the Inyo police “seized” Brower. The officers intended to stop Brower and did stop him by setting up the roadblock. The officers totally deprived Brower of his freedom to walk away.1
In Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985), the Supreme Court held that “apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” In that case, police officers suspected Edward Garner of having committed a burglary. Pursued by the officers, Gamer, who was unarmed, ran across a yard and encountered a six-foot chain link fence. An officer told him to stop, but Gamer began climbing the fence. The officer shot Garner in the back of the head and killed him. The Supreme Court found that the shooting of the unarmed fleeing suspect constituted an unreasonable seizure in violation of Garner’s fourth amendment rights.
I believe that Gamer compels finding that the Inyo police officers “seized” Brow-er when he crashed into the roadblock. As in Gamer, this case involves the use of deadly force by the police to apprehend a fleeing suspect. In both cases, the suspect might have been well-advised to surrender, but the fact that he resisted police authority does not change the fact that the police physically “seized” his person. In both cases, the police deprived the suspect of his ability to walk away in the most absolute and tragic sense.
The majority opinion argues that because Brower retained his freedom of movement until the crash, the crash itself was not a “seizure.” The opinion states:
Although Brower was stopped in the literal sense by his impact with the roadblock, he was not “seized” by the police in the constitutional sense. Prior to his failure to stop voluntarily, his freedom of movement was never arrested or restrained. He had a number of opportunities to stop his automobile prior to the ; impact.
The fact that Brower could have voluntarily submitted to police authority before crashing into the roadblock is irrelevant in determining whether a “seizure” occurred. The fleeing suspect in Gamer also retained his freedom of movement prior to his failure to stop voluntarily. But in Gamer, a “seizure” nevertheless occurred the moment the officer deprived the suspect of his freedom to walk away. Here, too, Brow-er’s freedom to walk away was restrained by the police. His decision to flee merely delayed the moment at which the “seizure” ultimately occurred.
A Fifth Circuit case supports the view that a police roadblock operates to “seize” its victims. In Jamieson v. Shaw, 772 F.2d 1205 (5th Cir.1985), the plaintiff was a passenger in a car that struck a roadblock set up by the police on a state highway. The driver of the car, stopped at a traffic light, initiated a high speed chase by accelerating away from a police car. During the ensuing chase, police called for assistance. Highway patrol officers set up a “dead-man” roadblock, consisting of an unlighted police car parked laterally in the middle of the highway just over the crest of a hill. As the driver’s car reached the top of the hill, police flashed a spotlight into the driver’s eyes, blinding him and causing him to crash into the roadblock.
In Jamieson, the Fifth Circuit reversed the district court’s decision dismissing the plaintiff’s fourth amendment claim without leave to amend. The Fifth Circuit found that “[the plaintiff] was 'seized’ for purposes of the Fourth Amendment when the officers deliberately placed the roadblock in front of the car in which they knew she was a passenger.” Id. at 1210.
The majority opinion attempts to distinguish cases, such as Jamieson, that involve fourth amendment claims brought by persons for whom the roadblock was not intended. If there is a valid distinction be*550tween the cases, it cuts in favor of allowing Brower’s survivors to bring a claim. In Jamieson, the court found that a person who was not the target of a police roadblock could state a fourth amendment claim. In this case, however, Brower was the target. Indeed, this case is a clearer example of a “seizure” because the police actually intended to apprehend the victim of the roadblock — Brower.
Contrary to what the majority opinion suggests, Galas v. McKee, 801 F.2d 200 (6th Cir.1986), is not analogous to the case before this court. In Galas, officers were engaged in high speed pursuit of a fleeing motorist. A roadblock was not involved. The pursuit ended when the motorist lost control of his automobile and crashed off the side of the road.
The Sixth Circuit found that the motorist had not been “seized” because the officers did not cause his accident. The court reasoned that “[o]nly when [an] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id. at 203 (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16) (emphasis added). In Galas, “[t]here was no exercise of physical force ... [nor was the motorist] restrained by ... the officer’s show of authority.” Id. The motorist crashed because of his inability to maneuver at the high speeds of the chase.
Unlike the police officers in Galas, the police in this case did restrain Brower’s freedom to leave. The police caused Brow-er to crash by setting up a roadblock to stop him.
Because the roadblock used to stop Brower constituted the use of physical force by police to apprehend a fleeing suspect, I would hold that the roadblock operated to “seize” Brower for purposes of the fourth amendment.
2. Reasonableness
Because I would hold that the roadblock “seized” Brower, I would reach the question whether police accomplished the “seizure” in an unreasonable manner.
The fourth amendment requires that “searches” and “seizures” be reasonable. “Reasonableness” depends on not only the justifications for a particular intrusion, but also on how the intrusion is carried out. Garner, 471 U.S. at 7-8, 105 S.Ct. at 1699-1700.
In Garner, the Supreme Court found that “[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” Id. at 11, 105 S.Ct. at 1701. The Court held that when a suspect poses no immediate threat to officers or the public, the harm resulting from the failure to apprehend the suspect does not justify the use of deadly force. However, the Court noted that the use of deadly force was not per se unreasonable. When officers have probable cause to believe that a suspect poses a significant threat to public safety, the Court suggested that the use of deadly force might be reasonable:
“[I]f the suspect threatens [an] officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.” Id. at 11-12, 105 S.Ct. at 1701 (emphasis added).
In this case, the district court ruled that as a matter of law the roadblock the Inyo police officers used to apprehend Brower was not an unreasonable use of deadly force. The court noted that the high speed chase posed a substantial threat to the officers and the public. Thus, the court concluded that the roadblock was a reasonable response to the perceived dangers of the chase.
The district court also found that Brower was warned of the existence of the roadblock by the police car that officers parked in the middle of the highway. The court stated that it was not required to accept as true the plaintiffs’ allegation that the police car headlights blinded Brower and prevented him from seeing the tractor-trailer. “It *551is not alleged,” the court observed, “that [Brower] survived the collision long enough to so inform anyone of this.”
This finding is improper. The fact that Brower is no longer living does not preclude finding that police “effectively concealed” the roadblock as the plaintiffs allege. The accident scene can be re-created and expert testimony can be offered to show that Brower was unable to see the roadblock before he crashed. The plaintiffs allegation that Brower could not see the roadblock was a factual allegation that the district court was required to accept as true for purposes of the motion to dismiss. Plaine v. McCabe, 797 F.2d 713, 723 (9th Cir.1986).
The plaintiffs’ complaint, properly construed, indicates that police may have failed to give Brower adequate warning of the roadblock, as required by Garner, 471 U.S. at 11-12, 105 S.Ct. at 1701-02. Therefore, the plaintiffs should be entitled to show at trial whether Brower could in fact have seen the roadblock before he crashed.
If the Inyo police officers set up the roadblock so that Brower, after seeing it, could not have stopped in time to avoid a crash, the roadblock could constitute an unreasonable use of deadly force in violation of Brower’s fourth amendment rights. Roadblocks are appropriate devices for police to use in apprehending dangerous criminals. A fleeing felony suspect poses a grave danger. However, the mere presence of danger does not entitle the police to employ any type of roadblock, especially one that could be expected to cause the suspect’s death. As the Supreme Court observed in Garner, “[i]t is not better that all felony suspects die than that they escape.” Garner, 471 U.S. at 11, 105 S.Ct. at 1701. A police roadblock that is designed to lead a fleeing suspect to his death, in my view, constitutes an unreasonable use of deadly force and violates the fourth amendment.
For these reasons, I would reverse the district court’s decision to dismiss the plaintiffs’ fourth amendment claim.
. The district court did not even question whether a "seizure” had occurred. The court implicitly assumed that the roadblock “seized" Brower and concluded that use of the roadblock was reasonable.