Ninth Circuit rejects immunity bid in deadly high-speed police chase

(CN) — A divided Ninth Circuit Court of Appeals on Friday rejected the appeal by two Oakland, California, police officers who argued they were entitled to qualified immunity in a lawsuit by bystanders who were injured when a car the officers were chasing crashed near a popular taco truck.

In a 2-1 decision, the appellate panel upheld the 2023 ruling by a U.S. magistrate judge that the officers must face the claims they violated the 14th Amendment due process rights of the bystanders, one of whom died, by conducting a high-speed chase for the purpose of harming the fleeing suspect in a manner that exceeded any legitimate law enforcement purpose and by failing to summon or render emergency services after the crash.

The majority specifically rejected the officers’ argument that they couldn’t be held liable because, even if they intended to harm the fleeing suspect, they didn’t intend to harm any bystanders.

“The fundamental question for the purpose of deciding whether plaintiffs have stated a substantive due process claim is whether defendants’ alleged conduct shocks the conscience,” Senior U.S. Circuit Judge Susan Graber, a Bill Clinton appointee, wrote. “We see no reason to think that conduct is any less shocking when it injures someone other than the intended target, particularly when harm to a third party is a clear, known risk and is entirely foreseeable.”

The officers engaged in a so-called ghost chase — an illicit pursuit without activating their siren and lights or radioing their dispatcher — of a suspect who they believed had participated in an illegal street rally. Oakland police is prohibited from giving chase at high speeds unless a suspect is believed to have committed a violent crime such as assault or rape because of the inherent dangers of such chases.

The two officers nevertheless raced after the suspect through highly populated and congested surface streets in Oakland at speeds in excess of 60 mph and reports of even 100 mph, according to the plaintiffs. As a result, the suspect lost control of his car and crashed into a group of people near a late-night taco truck, killing a 27-year-old man and severely injuring four of his family and friends.

The officers, according to the survivors’ lawsuit, drove past the crash without stopping or calling emergency services and only circled back after they heard other police arriving. They pretended they hadn’t been at the scene earlier and were overheard saying that “they were satisfied the [suspect] appeared injured and hoped that the [suspect] had died in the crash.”

Police officers can be shielded from civil liability under the qualified immunity principle if they perform their job in good faith. They can’t hide behind qualified immunity, however, if their conduct violates clearly established constitutional rights.

In this regard, the appellate panels rejected the officers’ argument that neither the Supreme Court nor the Ninth Circuit has ruled in favor of a bystander injured in a high-speed chase when addressing the merits of a substantive due process claim.

“But whether the plaintiffs in prior cases succeeded in establishing a substantive due process claim is beside the point,” Graber said. “Instead, we must determine whether the law provided fair warning that defendants’ alleged conduct was unconstitutional.”

Graber was joined in the majority by U.S. Circuit Judge Michelle Friedland, a Barack Obama appointee.

U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, wrote in dissent that his colleagues had adopted a brand-new theory of substantive due process, which he said was contrary to precedent and the Supreme Court’s admonition against such judicial overreach.

“For the first time, the majority rules that a bystander may assert a substantive due process claim against an officer if the bystander can show that the officer intended to harm someone else,” Bumatay said. “But neither the Supreme Court nor the Ninth Circuit has ever endorsed this theory.”

Attorneys for the two officers didn’t respond to a request for comment on the decision.

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