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June 27, 1994

MARK T. CARROLL, Plaintiff,
BOROUGH OF STATE COLLEGE, et al., Defendants

The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 June 27, 1994


 Plaintiff Mark T. Carroll filed this section 1983 *fn1" action to recover for injuries which he sustained during the early morning hours of July 27, 1990 when the motorcycle which he was operating crashed while being pursued by a police vehicle. The pursuit began when Corporal Buddy C. Dorman of the State College Borough Police observed Carroll pass another vehicle on the right hand side while exceeding the posted speed limit. Cpl. Dorman observed Carroll doing forty miles-per-hour in a twenty-five-mile-per hour zone.

 Cpl. Dorman fell in behind the motorcycle so that he could clock its speed with VASCAR. As he did so, the motorcycle proceeded through a red light. At that point, Cpl. Dorman activated his cruiser's siren and overhead lights, signaling the motorcycle operator to pull over. The operator did not stop, but sped up. Cpl. Dorman followed the motorcycle along Borough and township streets for about three miles. He radioed police headquarters that he was in pursuit of a motorcyclist who had committed a traffic violation. At times during the chase, the motorcycle and the pursuing police car reached speeds of up to seventy or eighty-five miles-per-hour.

 The chase came to an end when the motorcycle failed to negotiate a curve and crashed. Carroll sustained serious, permanently disabling injuries in the crash.

 Cpl. Dorman was the only police officer involved in the pursuit. Other officers arrived on the scene after the accident, but did not participate in the pursuit.

 Carroll filed this action against Cpl. Dorman; the State College Chief of Police, Elwood G. Williams, Jr.; and the Borough of State College (the Borough). *fn2" He alleges the violation of his civil rights under the Fourth, Fifth and Fourteenth Amendments (Counts I, II and III) based on Cpl. Dorman's pursuit. His allegations of liability against the Borough are based on a Monell3 claim grounded in an alleged failure to train its police officers in pursuit techniques and to adopt more restrictive policies against such pursuits.

 Defendants filed a motion for summary judgment (Record Document No. 7) on all claims. Our ruling on defendants' motion was deferred *fn4" pending reconsideration of the Third Circuit panel decision in Fagan v. City of Vineland, 1993 U.S. App. LEXIS 20327, Nos. 92-5481, 92-5482, 92-5551 and 92-5594, slip op. (3d Cir. August 5, 1993) (Fagan I), appealing 804 F. Supp. 591, 606 (D.N.J. 1992).

 Reargument was granted before the court en banc, 5 F.3d 647 (3d Cir. 1993), on the question of the standard to be applied in judging the conduct of the police pursuing a suspect under a claimed Fourteenth Amendment violation.

 Following reargument, two opinions were issued: 1) an opinion by the court en banc setting forth the standard of liability in a police pursuit action grounded in the Fourteenth Amendment, Fagan v. City of Vineland, (Fagan II--en banc), 22 F.3d 1296, slip op. (3d Cir. 1994) (1994 WL 157781); and 2) an opinion by the original panel, reaffirming its earlier reversal of the district court's grant of summary judgment in favor of the city, Fagan v. City of Vineland, (Fagan II--pane1), 22 F.3d 1283, slip op. (3d Cir. 1994) (1994 WL 157781).

 Issuance of the Fagan en banc opinion resolved the uncertainty over the standard to be applied in police pursuit cases in this circuit. We, therefore, lift the stay entered pending issurance of that decision and will now rule on the pending motions.

 In addition to defendants' motion for summary judgment, there are pending: 1) plaintiff's motion to supplement his memorandum in opposition to defendants' summary judgment motion (record document no. 30); 2) defendants' motion for separate trials (record document no. 18); 3) plaintiff's motion in limine (record document no. 22); and 4) defendants' motion in limine (record document no. 29).

 For the reasons discussed below, we will enter an order granting summary judgment in favor of all defendants on all of plaintiff's federally based claims (Counts I, II and III). All other pending motions will be denied as moot. Plaintiff's state law claims (Counts IV, V and VI) will be dismissed without prejudice under 28 U.S.C. § 1367(c)(3).


 Summary judgment standard

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

. . . The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is 'entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

 Celotex v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 477 U.S. at 323 and 325.

  Issues of fact are "'genuine' only if a reasonable jury, considering the evidence presented, could find for the non-moving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Material facts are those which will affect the outcome of the trial under governing law. Anderson, supra, 477 U.S. at 248. In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988).

 Fourth Amendment claim

 To prevail on a cause of action under section 1983, a plaintiff must prove that the conduct of a state actor deprived him of a right, privilege, or immunity secured by the United States Constitution or the law of the United States. Daniels v. Williams, 474 U.S. 327, 330, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). No one disputes that Cpl. Dorman was acting under color of state law during the pursuit. What is in contention is whether plaintiff's federal rights were violated.

 Carroll alleges the violation of his Fourth, Fifth, and Fourteenth Amendment rights. The Fourth Amendment protects citizens against unreasonable searches and seizures by law enforcement authorities. To state a cause of action under the Fourth Amendment, a plaintiff injured during, or as a result of, a police pursuit must establish that the pursuit was a "seizure" by the law enforcement officer and that the officer's conduct was unreasonable. Galas v. McKee, 801 F.2d 200, 202 (6th Cir. 1986).

 What constitutes a seizure was defined by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544, 552-53, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). The Court stated:

. . . Not all . . . [contact] . . . between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen . . . [has] . . . a 'seizure' . . . occurred.
. . . .
. . . [A] person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards.

 Id., 446 U.S. at 552-53 (1980) (Citations omitted.)

 The Supreme Court elaborated in Brower v. County of Inyo, 489 U.S. 593, 103 L. Ed. 2d 628, 109 S. Ct. 1378 (1989), stating:

Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking . . . but the detention or taking itself must be willful. . . .
. . . . It is clear that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual's freedom of movement . . . nor even whenever there is a governmental and governmentally desired termination of an individual's freedom of movement through means intentionally applied. That is the reason there was no seizure in the hypothetical situation that concerned the Court of Appeals.

 Id., 489 U.S. at 595-96.

 The hypothetical situation to which the Court referred was a police pursuit "in which the suspect unexpectedly loses control of his car and crashes." With respect to that scenario, the Supreme Court stated that it would find "no unconstitutional seizure", because:

The pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit; and though he was in fact stopped, he was stopped by a different means--his loss of control of his vehicle and the subsequent crash.

 Id., 489 U.S. at 595.

 The Court contrasted such circumstances with those in which a seizure does occur, stating:

 Id., 489 U.S. at 597. See also: California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 697, 111 S. Ct. 1547 (1991) (A show of authority by the police which is ignored by the fleeing suspect does not constitute a seizure. "An arrest requires either physical force . . . or, where that is absent, submission to the assertion of authority." Emphasis original.) and Michigan v. Chesternut, 486 U.S. 567, 572-76, 100 L. Ed. 2d 565, 108 S. Ct. 1975 (1988) (Police car driving parallel to individual fleeing on foot does not constitute a "seizure" under the Fourth Amendment.)

 Although the Supreme Court's analysis of a hypothetical situation is dicta, it illustrates how the Court would probably rule if confronted with the factual scenario presented here. Based on the statements made in Brower, supra, it seems clear that the Court would hold that police pursuit of a fleeing vehicle does not constitute a seizure under the Fourth Amendment absent additional circumstances, such as evidence that the police erected a roadblock which it made virtually impossible for the vehicle to stop without injury to the occupants, or took some other direct or intervening action to halt the vehicle in a violent or sudden manner likely to cause injury to the occupants. See: Tennessee v. Garner, 471 U.S. 1, 85 L. Ed. 2d 1, 105 S. Ct. 1694 (1985) (The use of deadly or excessive force to apprehend a fleeing suspect constitutes a Fourth Amendment seizure.).

 Consistent with the Supreme Court's rulings in Mendenhall, supra, and Brower, supra, the federal courts have unfailingly held that police pursuit of a fleeing vehicle is not a seizure under the Fourth Amendment, absent some aggravating circumstance. See, e.g., Horta v. Sullivan, 4 F.3d 2, 10-11 (1st Cir. 1993); Cole v. Bone, 993 F.2d 1328, 1332-33 (8th Cir. 1993); Galas, supra, 801 F.2d at 202-03; Keller v. Truska, 694 F. Supp. 1384 (E.D.Mo. 1988); Roach v. City of Fredericktown, 693 F. Supp. 795 (E.D.Mo. 1988), aff'd, 882 F.2d 294 (8th Cir. 1989); and Tagstrom v. Pottebaum, 668 F. Supp. 1269, 1273 n. 3 (N.D. Iowa 1987), reversed in part on other grounds, Tagstrom v. Enockson, 857 F.2d 502 (8th Cir. 1988). This has been the ruling, whether the claimant is the fleeing suspect injured by his own failure to halt or is an uninvolved third party injured by the fleeing vehicle or the pursuing police cruiser. See, e.g., Jones v. Sherrill, 827 F.2d 1102 (6th Cir. 1987), questioned on other grounds, Pleasant v. Zamieski, 895 F.2d 272, 275 n. 1 (6th Cir. 1990), cert. denied, 498 U.S. 851, 112 L. Ed. 2d 110, 111 S. Ct. 144 (1990); Chesney v. Hill, 813 F.2d 754 (6th Cir. 1987) and Allen v. Cook, 668 F. Supp. 1460 (W.D.Okl. 1987). Cf. Troublefield v. City of Harrisburg, 789 F. Supp. 160, 165 (M.D.Pa. 1992) (District court declined to follow Pleasant, supra, on the grounds that it gave "short shrift to the heavy load of case decisions holding that accidental shootings in identical circumstances did not constitute seizures."), aff'd per curiam, 980 F.2d 724 (3d Cir. 1992).

 Only in cases in which the police took direct action to halt the fleeing vehicle in an abrupt manner likely to cause injury to the occupants or other persons have the federal courts held that a Fourth Amendment seizure can exist. Tagstrom, supra, 668 F. Supp. at 1273 n. 3. It is only when the fleeing suspect is forcibly halted that a seizure occurs and Fourth Amendment protections come into play. See: California v. Hodari D., supra, 113 L. Ed. 2d at 697.

 In Brower v. Inyo, supra, for example, the police parked a tractor trailer across the road to block the path of the suspect's car. The fleeing driver had no chance of avoiding a collision with the police roadblock. The trailer was positioned just beyond a bend in the road. A police officer who had his cruiser positioned near the truck turned his lights off and on as he heard the suspect's car round the bend so that the driver was blinded by a sudden burst of light and had no chance of seeing the tractor-trailer until it was too late to avoid a collision. The Supreme Court held that the officers' conduct was ...

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