concurring specially:
I concur in the judgment of the court affirming the district court’s denial of the defendants’ motion for a summary judgment praying that, on any set of facts, the defendants would be protected by immunity-
I concur in our judgment because I conclude that one resolution of facts in dispute would present a case where constitutional “qualified immunity” would not be available to the officers. The plaintiff presents some evidence that the defendants sought to take the plaintiff’s driver into custody by deliberately ramming the automobile. Such a seizure would violate a clearly established constitutional protection under the Fourth Amendment.
Under familiar tort law principles, an individual operating a vehicle in the way the defendants were alleged to be operating might be found liable. Racing an automobile with another might result in liability for injury to the occupants of the other vehicle should it crash. Crowding another vehicle on the highway or otherwise maneuvering in an effort to cause the other vehicle to come to a stop might well result in liability should the maneuvering be done carelessly and be the cause of a crash. Were the defendant not an officer of the law, many theories of liability might well sound. See, e.g., Orszulak v. Bujnevicie, 355 Mass. 157, 243 N.E.2d 897 (1969); Gomez v. Hensley, 145 Ariz. 176, 179, 700 P.2d 874, 877 (Ct.App.1984) (“persons who race automobiles on a highway are liable and negligent for injuries caused by one of them”); Finn v. Morgan, 362 N.Y.S.2d 292, 46 A.D.2d 229 (N.Y.App.Div.1974) (all parties to a drag race are responsible for the torts of the other parties). An officer is given qualified immunity against such tort theories unless his conduct gives rise to a constitutional violation.
A law enforcement officer may pursue one subject to arrest for a crime if he attempts to flee. Having successfully pursued and overtaken the fleeing suspect, the law enforcement officer is not constitutionally required to be a mere observer of the flight of his quarry. He can try to cause the pursued driver to bring the car to a stop and submit to custody. Galas v. McKee, 801 F.2d 200 (6th Cir.1986) (“By engaging in high speed pursuits, without more, police use absolutely no force,” thus there is no seizure for purposes of the Fourth Amendment). This might be accomplished through maneuvers which would be highly dangerous at the high rates of speed to which the vehicles would be going. Just what bonafide efforts to *1573stop the fleeing criminal might be undertaken are limited only by the imagination and the Fourth Amendment.
The police are not constitutionally responsible if they did not deliberately cause the chased car to crash. In Galas, the police had engaged in a high speed pursuit of a thirteen year old minor. The minor lost control of his car, crashed, and was severely injured. Id. at 202. The parents argued that the officers should have stopped the pursuit and allowed the minor to flee in order to lessen the chances of a serious accident. Id. While this argument might be relevant in a state tort action to show that the officer was negligent, so long as there has been no restraint by physical force, there has been no Fourth Amendment seizure. Id. at 203. See also Keller v. Truska, 694 F.Supp. 1384 (E.D.Mo.1988), and Roach v. City of Fredericktown, 693 F.Supp. 795 (E.D.Mo.1988) (related cases), aff'd, 882 F.2d 294 (8th Cir.1989) (chased suspect collides with another car, injuring his own passenger and the couple in the other car; the crash was not caused by the officer; therefore, there was no seizure). Moreover, high speed pursuits are not an unreasonable method of seizing suspected criminals. Galas, 801 F.2d at 203.
Unless the pursuing officer, despairing of apprehending the pursued safely, deliberately undertakes to bring him into custody by assaulting him with deadly force, I believe that the efforts would be constitutional. We are already instructed that the officer may not attempt to stop such a fleeing suspect with a firearm, unless the officer has probable cause to believe the suspect poses a threat of serious bodily harm, either to the officer or to others. Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985). The use of an automobile to take a suspect into custody by inflicting the same or similar type of injury upon him that would be produced by a firearm violates the same constitutional principles.
This seizure with deadly force must be deliberate and willful. As the Supreme Court, in Brower v. County of Inyo, wrote,
A seizure occurs only when there is a governmental termination of freedom of movement through means intentionally applied.
489 U.S. 593, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989) (emphasis in original). If the suspect was stopped by his own act or negligence, or through the negligence of the officer’s, there has been no seizure, and thus no constitutional violation. Id.
The result the officer would like to obtain by seizing the suspect with deadly force is not a factor to be considered. In Brower, although the officers may have wished that the fleeing suspect would have stopped on his own volition, the Supreme Court did not inquire into their subjective intent. Id. 109 S.Ct. at 1382. Under the plaintiff’s allegations, the “seizure” occurred because the police put up a road block to stop him. Id. This seizure was “unreasonable” because the police set up the road block “in such a manner likely to kill him.” Id.
If the plaintiff persuades the fact-finder that the defendant deliberately undertook to take his driver into custody through an assault by car, the officer would not be immune. If the events were otherwise as described by the officer, even though tort liability would otherwise exist, the officer would not be subject to respond in damages because in pursuing and apprehending a criminal, the officer would be immune.
The case is to be returned for trial. The trial judge must provide instructions, special verdict forms, or other devices to ensure that the officer shall not be exposed to damages if the jury does not find that a deliberate assault occurred.