Appeal from the United States District Courtfor the Central District of CaliforniaRobert M. Takasugi, District Judge, PresidingSubmitted April 12, 19991Pasadena, CaliforniaFiled May 26, 1999Before: Dorothy W. Nelson, Ferdinand F. Fernandez, andWilliam Fletcher, Circuit Judges.Opinion by Judge W. FletcherSUMMARY
______________________COUNSEL Marion R. Yagman and Stephen Yagman, Yagman & Yag-man, Venice, California, for the plaintiffs-appellants.Roger H. Granbo, Deputy County Counsel, Los Angeles,California, for the defendants-appellees.
_____________________________OPINION W. FLETCHER, Circuit Judge:On the evening of August 17, 1991, Scott Reed passeddefendant Los Angeles County Sheriff's deputies Finn andYates in his hardtop Oldsmobile "muscle car," moving in andout of traffic at about 60 miles per hour on busy Santa MonicaBoulevard in Los Angeles. Finn and Yates followed Reed,who continued to drive erratically and recklessly. Finn, whowas driving the patrol car, turned on his siren and lights, andgave chase. Rather than stopping, Reed attempted to eludeFinn and Yates, maintaining speeds of up to 60 or 70 milesan hour.Defendant deputy Thomas, who was monitoring the chaseon his patrol car radio, saw Reed's Oldsmobile run a red lighton Melrose Avenue. Finn and Yates had not been able to keepup with Reed, so Thomas took up the pursuit. Three or fourseconds later, Reed crashed into the Onossians' vehicle. Theentire pursuit lasted about a minute. The deputies' speeds inthe two patrol cars never exceeded 45 miles per hour. Theclosest either car came to Reed's car was a distance of 100 yards.2The Onossians were severely injured. They sued Finn,Yates, Thomas, and various Los Angeles County officialsunder 42 U.S.C. S 1983, seeking damages for violation oftheir Fourteenth Amendment due process rights.3 The districtcourt granted defendants' motion for summary judgment,using this court's then-standard for high speed chases set forthin Lewis v. Sacramento County, 98 F.3d 434 (9th Cir. 1996).Before we heard the Onossians' appeal, the United StatesSupreme Court reversed our decision in Lewis v. SacramentoCounty. County of Sacramento v. Lewis,
523 U.S. 833
, 118S. Ct. 1708 (1998).The Supreme Court held in Lewis that when injury or deathresults from a high-speed police chase "only a purpose tocause harm unrelated to the legitimate object of arrest will sat-isfy the element of arbitrary conduct shocking to the con-science, necessary for a due process violation." Lewis, 523U.S. at _______, 118 S. Ct. at 1711-12. "[W]e hold that high-speedchases with no intent to harm suspects physically or to worsentheir legal plight do not give rise to liability under the Four-teenth Amendment, redressible by an action underS 1983."Id., 523 U.S. at _______, 118 S. Ct. at 1720.[1] We must decide two questions in this case. First, doesthe Lewis test apply not only to harm caused to those pursuedin a high speed chase, but also to harm caused to other driv-ers? In Lewis itself, two boys on a motorcycle were pursuedby a police patrol car, and one of the boys was accidentlykilled. The words of the Lewis holding, read narrowly, applyonly to suspects pursued by the police. For example, in thelanguage quoted above, the Court referred to harm to"suspects" rather than harm to people generally. Similarly, thejustification for the Lewis test, understood narrowly, mightalso apply only to suspects. That is, Lewis establishes a highthreshold that must be overcome before someone injured in apolice chase can show a due process violation. It might becontended that the duty of police toward innocent people isgreater than to fleeing suspects, so that another driver or aninnocent bystander should be able to recover from the policeupon a lesser showing of recklessness or misconduct than thatrequired by Lewis' "shock-the-conscience " test.[2] We find that such a narrow interpretation does not fullycapture the meaning of Lewis. At several points in the Court'sopinion, the duty of the pursuing police officer is defined gen-erally, without specific reference to the suspect being pursued.Perhaps most telling is the Court's description of the dilemmaof a police officer who must make a "split-second " decisionwhether to pursue a suspect: "A police officer decidingwhether to give chase must balance on one hand the need tostop a suspect and show that flight from the law is no way tofreedom, and, on the other, the high-speed threat to everyonewithin stopping range, be they suspects, their passengers,other drivers, or bystanders." Id., 523 U.S. at _______, 118 S. Ct.at 1720 (emphasis added). As we read the Court's opinion, ifa police officer is justified in giving chase, that justificationinsulates the officer from constitutional attack, irrespective ofwho might be harmed or killed as a consequence of the chase.[3] We have already come close to answering the questionof a police officer's obligation to non-suspects in a high speedchase. In Moreland v. Las Vegas Metropolitan Police Dept.,159 F.3d 365 (9th Cir. 1998), we held that the Lewis testapplied where a bystander was killed by police in a gunfightoutside a bar: The question we face today is whether this newly minted explanation of the `shocks the conscience' standard also controls in cases where it is alleged that an officer inadvertently harmed a bystander while responding to a situation in which the officer was required to act quickly to prevent an individual from threatening the lives of others. We conclude that it does.159 F.3d at 372. It is a small step from applying Lewis to abystander harmed in a gunfight to applying it to another driverharmed in the very situation in which the Lewis test origi-nated. We therefore hold that for the Onossians to show thattheir due process rights have been violated, they must showthat the behavior of the police in this case "shocks theconscience."Second, does the conduct in this case "shock theconscience" within the meaning of Lewis? A comparison ofthe chases in this case and in Lewis compels the conclusionthat the Onossians' due process rights were not violated.Plaintiffs in Lewis were the parents of a boy who was killedin a high-speed police chase. Their minor son had been a pas-senger on a motorcycle driven by another minor. A Sacra-mento County Sheriff's deputy pursued the boys at high speedafter they failed to stop when asked to do so by another offi-cer. The chase, which lasted a little over a minute, reachedspeeds of up to 100 miles an hour on residential streets. Themotorcycle ran several stop lights and made various danger-ous turns. The deputy followed closely, sometimes at a dis-tance of as little as 100-150 feet. The chase ended when themotorcycle skidded to a halt over the crest of a hill. The dep-uty came over the hill, saw the stopped motorcycle, and skid-ded 147 feet before hitting the boy at a speed ofapproximately 40 miles per hour. He was thrown 70 feetdown the road and was pronounced dead at the scene. TheSupreme Court held in Lewis that the deputy's behavior didnot "shock the conscience." Lewis, 523 U.S. at _______, 118 S. Ct.at 1721.[4] Comparing the facts in this case to those in Lewis, it isclear that no reasonable trier of fact could find that defen-dants' actions shock the conscience. There is no evidence thatdeputies Finn, Yates, and Thomas intended to cause harm toanyone. Indeed, their actions support precisely the oppositeconclusion, for they were attempting to remove a dangerousdriver from the streets. Especially convincing is the fact thatReed was endangering the public even before the chasebegan. It is possible, perhaps even likely, that Reed wouldhave collided with the Onossians or someone else, whether ornot the police had been chasing him.Appellees request attorneys' fees under 42 U.S.C.S1988,contending that the Onossians' appeal is frivolous, but theyhave failed to file a separate motion. Because a mere state-ment in the brief that the party seeks sanctions is not suffi-cient, we do not consider appellees' request for sanctions andfees. Fed. R. App. P. 38.The decision of the district court is AFFIRMED. the end
___________________________FOOTNOTES 1 The panel unanimously finds this case suitable for decision withoutoral argument. See Fed. R. App. P. 34(a).2 Reed was subsequently convicted in state court of reckless drivingcausing great bodily injury and sentenced to two years in prison.3 This case has a somewhat complicated procedural history. The originalcomplaint, filed on August 12, 1992, also alleged violations of their FourthAmendment rights. The district court dismissed the entire complaint onNovember 24, 1992, granting defendants' Federal Rule of Civil Procedure12(b)(6) motion without leave to amend. Plaintiffs appealed to this court,which reversed the dismissal of the Fourteenth Amendment claims andaffirmed the dismissal of the Fourth Amendment claims. Plaintiffsamended their complaint, and the district court once again dismissed itwithout leave to amend under Rule 12(b)(6). This court again reversed,based on our now-reversed decision in Lewis v. Sacramento County, 98F.3d 434 (9th Cir. 1996). This case is before us for the third time.