IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 28, 2009
No. 08-60242 Charles R. Fulbruge III
Clerk
ROY A PASCO, by and through his grandmother and next friend, Beverly A.
Pasco; BRIAN K PASCO, by and through his grandmother and next friend,
Beverly A. Pasco
Plaintiffs - Appellees
v.
BRAD KNOBLAUCH
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
Before GARWOOD, GARZA, and OWEN, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendant Officer Brad Knoblauch appeals the district court’s denial of
his motion for summary judgment. For the following reasons, we reverse.
I
On April 29, 2000, Officer Brad Knoblauch (“Knoblauch”) of the Holly
Springs Police Department was on a routine late-night/early-morning patrol
when he observed Roy Pasco (“Pasco”) driving erratically. Believing Pasco was
intoxicated, Knoblauch followed him. When Pasco failed to observe a stop sign,
Knoblauch activated his lights and siren and Pasco pulled over to the side of the
No. 08-60242
road. As Knoblauch exited his patrol car to approach Pasco’s vehicle, Pasco sped
off. Knoblauch returned to his car and began to chase Pasco. The pursuit took
place on a rural, curvy two-lane road at speeds in excess of ninety miles per
hour. One minute into the chase, Knoblauch’s supervisor radioed an order for
Knoblauch to terminate the chase.
Pasco argues that Knoblauch did not back off of the chase and instead
bumped Pasco’s car from behind, sending it off the road into a ravine. Pasco died
from the injuries he suffered in the crash. For the purposes of summary
judgment and this appeal, Knoblauch has conceded Pasco’s version of events.
This case has a complicated procedural history, and the instant appeal is
our third consideration of this set of facts. Plaintiffs, Pasco’s surviving family,
originally sued the city of Holly Springs under 42 U.S.C. § 1983 for violations of
the Fourth and Fourteenth Amendments (Pasco I). This suit did not name
Knoblauch as a defendant. The district court granted summary judgment in
favor of the city on the grounds that no basis for municipal liability existed and
that Pasco had failed to establish a Fourth Amendment claim. On appeal we
affirmed the summary judgment because no municipal liability existed, but we
did not reach the Fourth Amendment question. Pasco v. Holly Springs, 101 Fed.
App’x 6 (5th Cir. 2004) (unpublished). While Pasco I was pending before us, the
Plaintiffs brought suit against Knoblauch individually (Pasco II). The district
court found that Pasco II raised no new facts or arguments beyond those in
Pasco I and granted Knoblauch’s motion for summary judgment because Pasco
had failed to establish a Fourth Amendment claim. On appeal in Pasco II we
reversed the summary judgment, holding that questions of fact existed as to
whether Knoblauch intentionally bumped Pasco’s car, and remanded. Pasco v.
Knoblauch, 223 Fed. App’x 319 (5th Cir. 2007) (unpublished).
Seven weeks after our decision in Pasco II the Supreme Court decided
Scott v. Harris, 550 U.S. 372; 127 S. Ct. 1769 (2007), which established a rule for
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No. 08-60242
§ 1983 actions against police officers involved in high-speed chases. In light of
Scott, Knoblauch moved for summary judgment based on qualified immunity.
This was the first time he raised this defense. Pasco moved to strike the
affirmative defense as waived. The district court denied summary judgment
based on its findings that Knoblauch had waived his qualified immunity defense
by failing to raise it in a timely fashion, and that Knoblauch violated clearly
established Fourth Amendment law when he ended the chase by bumping Pasco
from the road. The district court also granted Pasco’s motion to strike.
Knoblauch appeals the denial of summary judgment.
II
We review the district court’s denial of summary judgment predicated on
qualified immunity de novo. Haggerty v. Tex. S. Univ., 391 F.3d 653, 655 (5th
Cir. 2004). In an interlocutory appeal in which the defendant asserts qualified
immunity, if the district court found that factual disputes exist we accept the
plaintiff's version of the facts as true to the extent supported by the summary
judgment record. Id.
Knoblauch appeals the district court’s order denying his motion for
summary judgment based on qualified immunity. In this order, as well as in the
memorandum opinion explaining the reasons for the denial, the district court
also granted Pasco’s motion to strike the affirmative defense as waived. Despite
this somewhat confusing posture, it is clear that the district court denied
summary judgment because it found Knoblauch had waived the defense, and
also because it concluded that qualified immunity would not protect Knoblauch
from suit since he violated clearly established Fourth Amendment law.
Importantly, the district court based both determinations on conclusions of law.
Therefore, we will review the waiver issue and the Fourth Amendment issue de
novo since both form the basis for the denial of summary judgment. See, e.g.,
Murray v. Crossmark Sales, Inc., 163 Fed. App’x 339, 341-42 (5th Cir. 2006)
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No. 08-60242
(unpublished) (reviewing de novo the district court’s summary judgment
conclusion that an affirmative defense was not waived under F ED. R. C IV. P.
8(c)); Eddy v. Virgin Islands Water and Power Auth., 256 F.3d 204, 208-09 (3d
Cir. 2001) (reviewing de novo the district court’s summary judgment conclusion
that qualified immunity was waived because it was not raised in the first
responsive pleading, and observing that “[i]f we have jurisdiction to review an
order rejecting qualified immunity at the summary judgment stage, our review
of the order is plenary”).
III
A
We first consider our jurisdiction to hear this interlocutory appeal.
Generally, denials of summary judgment are not final orders. See Mendenhall
v. Riser, 213 F.3d 226, 229 (5th Cir. 2000). However, the denial of qualified
immunity on summary judgment is immediately appealable under the collateral
order doctrine if based on an issue of law. Mitchell v. Forsyth, 472 U.S. 511, 530
(1985); Mendenhall, 213 F.3d at 229-30. In other words, a denial of summary
judgment based on qualified immunity is deemed a final decision under 28
U.S.C. § 1291, and thus our jurisdiction is proper, “to the extent that the
question on appeal is whether the undisputed facts amount to a violation of
clearly established law.” Haggerty, 391 F.3d at 655. If the district court found
that genuine factual disputes exist, we must accept the plaintiff’s version of the
facts as true to the extent supported by the summary judgment record. Id. The
Supreme Court has recognized the importance of interlocutory review of orders
denying a qualified immunity defense because these orders are effectively
unreviewable, since “review after trial would come too late to vindicate one
important purpose of qualified immunity—namely, protecting public officials,
not simply from liability, but also from standing trial.” Johnson v. Jones, 515
U.S. 304, 312 (1995) (internal quotation omitted).
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Pasco argues that we lack jurisdiction to hear this appeal because there
are material facts in dispute. However, the district court did not base its denial
of summary judgment on the existence of material factual disputes.1 On the
contrary, at the outset of its analysis the district court explicitly adopted Pasco’s
version of the facts and Knoblauch has conceded Pasco’s version of the events
for purposes of summary judgment.2 The district court engaged in a legal
analysis of Fourth Amendment case law to reach its conclusion that it was
clearly established in 2000 that Knoblauch’s conduct was unlawful. It is clear
from the district court’s order that the denial of summary judgment was based
on legal conclusions regarding Fourth Amendment reasonableness, applied to
the facts as Pasco alleged them. Where the district court relies on one party’s
version of the facts to make a ruling of law denying summary judgment based
on qualified immunity, our jurisdiction is proper.3 See Haggerty, 391 F.3d at
655.
B
We now address whether the district court properly held that Knoblauch
waived his defense of qualified immunity by failing to raise the defense until the
1
Pasco claims that we lack jurisdiction because the district court stated at the
conclusion of its order that there are “genuine factual disputes here.” However, the district
court did not describe the factual disputes and did not discuss whether the disputes related
to facts material to summary judgment issues. Rather, we read this statement to refer to
what Knoblauch would likely argue at trial—that he followed his supervisor’s order to end the
chase. The dispute over whether Knoblauch followed his supervisor’s order is irrelevant to the
summary judgment inquiry, because Knoblauch has conceded that the events took place as
Pasco describes them.
2
Knoblauch has repeatedly stated that he concedes to every “factual dispute” identified
by Pasco that finds some evidentiary support in the record, including the possibility indicated
by Pasco’s accident reconstructionist that Pasco “left the road at a speed slow enough to track
down the embankment.” Importantly, none of the alleged factual disputes Pasco identifies are
mentioned by the district court in its memorandum opinion, which relies exclusively on
determinations of law.
3
Accordingly, with this ruling we also deny Pasco’s outstanding Motion to Dismiss
Appeal for lack of jurisdiction.
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No. 08-60242
motion for summary judgment. This is an issue of law over which we have
jurisdiction under the collateral order doctrine. See Eddy, 256 F.3d at 209
(finding that the collateral order doctrine permitted review of the district court’s
determination that qualified immunity was waived as untimely under Rule 8(c)).
We conclude that the district court applied the incorrect legal standard for
deciding whether an affirmative defense was waived.
As an affirmative defense, qualified immunity must be pled and proved by
the defendant. See Gomez v. Toledo, 446 U.S. 635, 640 (1980); F ED. R. C IV. P.
8(c). Generally, under Rule 8(c) affirmative defenses must be raised in the first
responsive pleading. However, “[w]here the matter is raised in the trial court
in a manner that does not result in unfair surprise . . . technical failure to
comply precisely with Rule 8(c) is not fatal.” Allied Chem. Corp. v. Mackay, 695
F.2d 854, 855-56 (5th Cir. 1983). An affirmative defense is not waived if the
defendant “raised the issue at a pragmatically sufficient time, and [the plaintiff]
was not prejudiced in its ability to respond.” Id. at 856. We have noted that a
failure to plead an affirmative defense in the first response is “especially
excusable” where the law on the topic is not clearly settled. See Johnson v.
Johnson, 385 F.3d 503, 516 n.7 (5th Cir. 2004).
Despite referencing the above law, the district court found waiver based
solely on the fact that a fifty-two month delay existed between Knoblauch’s first
responsive pleading and his assertion of qualified immunity. The district court
concluded that Pasco was presumptively prejudiced by this delay, without any
analysis or description of the prejudice. However, under Rule 8(c) we do not take
a formalistic approach to determine whether an affirmative defense was waived.
Rather, we look at the overall context of the litigation and have found no waiver
where no evidence of prejudice exists and sufficient time to respond to the
defense remains before trial. See Giles v. Gen. Elec. Co., 245 F.3d 474, 492 (5th
Cir. 2001) (finding no waiver where a new affirmative defense was raised in a
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No. 08-60242
joint pretrial order over a year after complaint was filed); Lubke v. City of
Arlington, 455 F.3d 489, 499 (5th Cir. 2006) (finding no waiver where a defense
was raised in a pretrial motion in limine two years after the complaint was filed
and just weeks before trial); Allianz Versicherungs, AG v. Profreight Brokers,
Inc., 99 Fed. App’x 10, 12 (5th Cir. 2004) (unpublished) (finding no waiver
because “[t]he fact that [the plaintiff] had three months to consider and prepare
for the limitations defense . . . refutes [the] assertion that it was prejudicially
surprised . . . .”). This is consistent with the Supreme Court’s interpretation of
the purpose of Rule 8(c), which is to give the opposing party notice of the
affirmative defense and a chance to argue why it should not apply. See
Blonder-Tongue Lab. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971).
Here, though Knoblauch raised qualified immunity fifty-two months after
the complaint was filed, substantial time remained before trial for Pasco to
respond to the defense. Knoblauch asserted qualified immunity two months
before discovery was due and six months before the pretrial conference. Pasco
submitted a full response to the defense to the district court and has briefed it
on appeal to this court. No evidence indicates that Pasco was prejudiced by the
late assertion or that Knoblauch intentionally delayed raising the defense to
prejudice Pasco. On the contrary, the record indicates the delay resulted from
the lengthy procedural history of this case (including numerous stays, which
totaled twenty-nine months while the first two appeals were pending), combined
with significant developments following the appeal in Pasco II. One such
development occurred when Pasco abandoned the claim, on appeal in Pasco II,
that Roy Pasco died from blunt trauma injuries inflicted by the police after he
walked away from the crash.4 Further, a major legal development occurred
4
Throughout Pasco I and until the appeal in Pasco II, Pasco pursued the theory that
Knoblauch bumped him off the road and then violated his right to be free from excessive force
by beating him to death after he walked away from the accident. Responding to Knoblauch’s
first motion for summary judgment, Pasco asserted “[t]here is strong circumstantial evidence
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No. 08-60242
when the Supreme Court handed down Scott v. Harris in April 2007, a month
after we remanded Pasco II. Scott addressed, for the first time, the Fourth
Amendment implications of a police officer ending a high-speed car chase by
ramming the fleeing suspect’s vehicle off the road. See generally Scott, 127 S. Ct.
1769. As we noted in Johnson, a delay in raising an affirmative defense is
particularly excusable where, as here, the law was not clearly settled prior to
Scott. See Johnson, 385 F.3d at 516 n.7.
We accordingly hold that the lack of prejudice to Pasco combined with the
unusual circumstances and history of this litigation indicate that Knoblauch did
not waive qualified immunity.
C
We now turn to the question of whether qualified immunity protects
Knoblauch from suit based on the facts as Pasco alleged them. Qualified
immunity shields government officials from civil damages liability “insofar as
their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). More precisely, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right . . . in the light of pre-existing law the unlawfulness
must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). As we
have held, “pre-existing law must dictate, that is, truly compel (not just suggest
or allow or raise a question about), the conclusion for every like-situated,
reasonable government agent that what defendant is doing violates federal law
that Pasco walked away from the wreck and died of injuries inflicted by the police.”
Knoblauch argued that he did not assert qualified immunity against the beating claim because
he believed it would be a frivolous defense to the charge that he beat Pasco to death, but that
he raised the defense as soon as was practicable after our remand and the Scott decision, when
the theory of liability was limited to the bumping claim.
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No. 08-60242
in the circumstances.” See Pierce v. Smith, 117 F.3d 866, 882 (5th Cir. 1997)
(emphasis in original) (internal quotation and citation omitted).
Until recently, we resolved government officials’ qualified immunity claims
under the strict two-part test mandated by the Supreme Court in Saucier v.
Katz, deciding (1) whether facts alleged or shown by plaintiff make out the
violation of a constitutional right, and (2) if so, whether that right was clearly
established at the time of the defendant’s alleged misconduct. See Saucier, 533
U.S. 194, 201 (2001); Sorenson v. Ferrie, 134 F.3d 325, 328 (5th Cir. 1998).
However, the Supreme Court has revisited this rule and determined that the
rigid two-step structure is no longer mandatory. See Pearson v. Callahan, 129
S. Ct. 808, 2009 WL 128768 at *9 (2009). Accordingly, as the Court did in
Pearson, we will first consider whether the officer’s conduct violated clearly
established law. Id. at *14. If we determine that the answer is no, qualified
immunity will shield Knoblauch from suit.
The following undisputed facts are relevant to this question. Knoblauch
and Pasco were engaged in a high-speed chase in excess of ninety miles per hour
and were approaching the edge of the city. The chase occurred on a curvy two-
lane road in a residential area at approximately 3:00 in the morning. Pasco was
having trouble negotiating sharp curves in the road at the high rate of speed.
Knoblauch testified that he observed Pasco drinking from a beverage container
and suspected he was driving while intoxicated. As Pasco claims, and
Knoblauch concedes, no other vehicles, pedestrians, or other bystanders were
encountered during the pursuit. Knoblauch also concedes that Pasco might have
decelerated at the very end of the chase, though Pasco’s accident
reconstructionist was unable to determine the exact speed of Pasco’s vehicle
when the collision occurred.
The district court concluded that Knoblauch’s conduct violated clear
Fourth Amendment law because Knoblauch “was acting contrary to police
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No. 08-60242
department protocol” when he bumped Pasco off the road. However, the fact
that Knoblauch acted contrary to his supervisor’s order is constitutionally
irrelevant. Violations of non-federal laws cannot form a basis for liability under
§ 1983, and qualified immunity is not lost because an officer violates department
protocol. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 119 (1992)
(finding that § 1983 does not provide a remedy if there is no violation of federal
law); Davis v. Scherer, 468 U.S. 183, 194 (1984) (noting that officials do not lose
qualified immunity where they violate administrative directives); Scott, 127 S.
Ct. at 1773 n.1 (observing that “it is irrelevant to our analysis whether [Officer]
Scott had permission to take the precise actions he took” when he bumped the
fleeing suspect off the road). Therefore, we hold that the district court erred in
concluding that Knoblauch loses qualified immunity because he failed to follow
his supervisor’s order to end the chase.
The district court also found that Tennessee v. Garner, 471 U.S. 1 (1985),
established a clear Fourth Amendment rule making Knoblauch’s actions
unconstitutional because no innocent bystanders were present. Garner involved
an application of the Fourth Amendment’s reasonableness test to the use of
deadly force when a “young, slight, and unarmed” burglary suspect flees on foot.
Id. at 21. The Court held that it was unreasonable for an officer to shoot such
a suspect in the back of the head when the officer could not have believed the
suspect posed any threat and did not attempt to justify his actions on any basis
other than the need to prevent escape. See id. at 4, 21. Clearly, Garner did not
create a rigid rule for all situations involving deadly force; it would be
unreasonable to expect a police officer to make the numerous legal conclusions
necessary to apply Garner to a high-speed car chase. Considering the vast
difference between an unarmed suspect fleeing on foot and a reckless,
intoxicated driver speeding away from police in a vehicle, we hold that Garner
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No. 08-60242
did not establish a clear Fourth Amendment rule making Knoblauch’s conduct
unlawful based on the summary judgment record in this case.
In 2000 neither the Supreme Court nor the Fifth Circuit had spoken
directly to the question of whether an officer may attempt to end a high-speed
car chase by bumping the suspect off of the road. However, in 2007 the Supreme
Court confronted facts similar to this case in Scott v. Harris. In Scott, a police
officer rammed a fleeing suspect’s rear bumper to end a car chase that had
exceeded eighty-five miles per hour and presented a danger to the public. See
Scott, 127 S. Ct. at 1772. The Court held:
A police officer’s attempt to terminate a dangerous high-speed car
chase that threatens the lives of innocent bystanders does not
violate the Fourth Amendment, even when it places the fleeing
motorist at risk of serious injury or death.
Id. at 1779. Although this rule does not directly apply to the question of what
clearly established law existed in 2000, it does give us insight into the state of
the law prior to 2007 regarding a police officer ending a car chase by bumping
the suspect off the road. In reaching the conclusion in Scott, the Court did not
cite to any existing cases dealing with this factual situation. The Court did,
however, determine that Garner could not establish a clear Fourth Amendment
rule governing car chases because that case involved a suspect fleeing on foot.
Id. at 1777. Scott therefore reaffirms our conclusion that Garner did not clearly
establish a rule making Knoblauch’s conduct unlawful.
In the absence of a specific rule governing the constitutionality of
Knoblauch’s actions, our inquiry turns on whether Knoblauch’s actions were
objectively reasonable. See Graham v. Connor, 490 U.S. 386, 388 (1989) (finding
that a claim of “excessive force in the course of making [a] . . . ‘seizure’ of [the]
person . . . [is] properly analyzed under the Fourth Amendment’s ‘objective
reasonableness’ standard”). This reasonableness is determined by a balancing
test between “the nature and quality of the intrusion on the individual’s Fourth
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No. 08-60242
Amendment interests against the importance of the governmental interests
alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703 (1983).
The Court’s analysis of the reasonableness of the officer’s actions in Scott
is instructive. Though the specific facts of every car chase will be different, the
Court acknowledged the generally inherent danger that suspects fleeing from
police in vehicles pose to the public—even when no bystanders or other motorists
are immediately present. At the moment the officer in Scott rammed the
suspect’s vehicle, it was not threatening any other vehicles or pedestrians. See
Scott, 127 S. Ct. at 1776 n.7. In spite of this fact, the Court concluded that the
suspect “posed an actual and imminent threat to the lives of any pedestrians
who might have been present, to other civilian motorists, and to the officers
involved in the chase.” Id. at 1778. This indicates that the holding of Scott was
not dependent on the actual existence of bystanders—rather, the Court was also
concerned about the safety of those who could have been harmed if the chase
continued.
Importantly, the Court observed that the balancing test judging the
reasonableness of the officer’s conduct must consider not only the number of
lives potentially at risk, but also the relative culpability of those threatened. Id.
The Court acknowledged that risks were present whether the officer ended the
chase or allowed the suspect to flee unabated; however, the fleeing suspect had
intentionally placed himself and the public in danger, while any bystanders who
could be injured by the fleeing suspect had done nothing to create the dangerous
situation. Id. Therefore, though the officer was stuck between “two evils” in
either possibly harming the fleeing suspect or possibly allowing innocent parties
to be injured, it was reasonable for the officer to choose to end the chase in light
of the relative culpability of those at risk. Id.
Here, Pasco was fortunate enough not to have encountered any
pedestrians or other motorists during his high-speed and reckless attempt to
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No. 08-60242
evade Knoblauch. We will never know whether Pasco would have harmed
someone if Knoblauch had not ended the chase, but the undisputed facts indicate
that Pasco would have posed a serious threat to anyone he encountered. Pasco
was driving recklessly, at ninety miles per hour down a curvy two-lane road.
Knoblauch suspected that he might be driving under the influence of alcohol.5
Knoblauch had no way of knowing if another vehicle would enter Pasco’s path
or whether a person might have been walking around the next corner. He made
a quick decision, under stressful circumstances, to try to end the serious danger
Pasco posed before any of these potentially tragic situations occurred.
The early morning hours, the rural nature of the area, and the fact that
Pasco may have slowed down immediately before impact do not render
Knoblauch’s actions unreasonable. Like in Scott, it was Pasco himself who
created this dangerous situation and put himself at risk when he fled from the
officers. As indicated by the undisputed facts of the chase, it was reasonable for
Knoblauch to believe that Pasco would continue to pose a danger to anyone he
might encounter. Stuck between the choice of letting a presumptively intoxicated
and reckless driver continue unabated or bumping the suspect off the road,
Knoblauch chose the course of action that would potentially save the lives of
individuals who had no part in creating the danger. Although this choice ended
tragically with Pasco’s death, the balancing test indicates that Knoblauch’s
actions were reasonable.
Qualified immunity protects “all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). The
immunity inquiry is intended to reflect the understanding that “reasonable
mistakes can be made as to the legal constraints on particular police conduct.”
5
Knoblauch testified that he witnessed Pasco driving while drinking from what he
believed to be a container of beer. Though at the time Knoblauch could not know for certain
whether Pasco was driving under the influence, tests later confirmed that Pasco’s blood alcohol
content was above the legal limit and cocaine was present in his system during the chase.
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Saucier, 533 U.S. at 205. Importantly, qualified immunity purposefully shields
police officers’ split-second decisions made without clear guidance from legal
rulings: “Qualified immunity operates . . . to protect officers from the sometimes
hazy border between excessive and acceptable force, and to ensure that before
they are subjected to suit, officers are on notice their conduct is unlawful.” Id.
at 205-06 (internal quotation and citation omitted). We find that Knoblauch’s
actions in terminating the serious threat posed by an intoxicated suspect fleeing
down a narrow, curvy highway at excessive rates of speed did not violate clearly
established law, and were reasonable under the circumstances. Accordingly,
qualified immunity protects Knoblauch from suit.
IV
For the foregoing reasons, we REVERSE the district court’s denial of
Knoblauch’s motion for summary judgment.
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No. 08-60242
GARWOOD, Circuit Judge, dissenting.
I respectfully dissent. The record evidence does not clearly establish
the distance, traffic and related conditions between where Pasco’s car was when
Knoblauch received the order from his supervisor not to continue pursuit and the
point at which Pasco’s car went off the road. The reason for this lack of
information is that Knoblauch on his deposition claimed to have not been
present when Pasco’s vehicle went off the road and down the embankment, and
claimed to have broken off pursuit when he was told to do so. Crucially, we
certainly do not know if, as the majority assumes, Pasco did not slow down until
“immediately before” he went down the embankment. Moreover, I note that
there is evidence that Knoblauch told Pasco’s sister that he did not terminate
pursuit as he had been instructed. Further, Knoblauch admitted that in his
pursuit of Pasco prior to being ordered to terminate (and doing so), no vehicles,
bystanders or pedestrians were encountered. Nor did Knoblauch ever testify or
state under oath that he struck Pasco’s vehicle to prevent it from endangering
others (or for any other reason). I cannot conclude that there are no factual
disputes material to the issue of qualified immunity. In this respect the case is
quite unlike Scott v. Harris, 127 S.Ct. 1769 (2007).
15