LAWRENCE WOURMS, as personal representative of ESTATE OF DANE WOURMS, Plaintiff-Appellant,
SCOTT FIELDS and CITY OF EVANSVILLE, WISCONSIN, Defendants-Appellees
Argued: September 12, 2013.
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:11-cv-00740-bbc -- Barbara B. Crabb, Judge.
For LAWRENCE WOURMS, as personal representative of the ESTATE OF DANE WOURMS, Plaintiff - Appellant: Jeff Scott Olson, Attorney, Madison, WI.
For SCOTT FIELDS, CITY OF EVANSVILLE, Defendants - Appellees: Charles H. Bohl, Attorney, WHYTE HIRSCHBOECK DUDEK S.C., Milwaukee, WI; Erin Marie Keesecker, Attorney, WHYTE, HIRSCHBOECK & DUDEK S.C., Madison, WI.
Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.
Posner, Circuit Judge.
Sixteen-year-old Dane Wourms was killed when, in a high-speed pursuit in April 2007 by an unmarked police car that began shortly after 1 a.m., his car veered off the road and crashed. The personal representative of Wourms's estate (his father) brought this suit under 42 U.S.C. § 1983 against the officer driving the police car. The additional defendant, the officer's employer, is joined only as a potential indemnitor should the officer be found liable; we can ignore it. Another redundancy is the naming of the estate, in the complaint and all subsequent filings in the district court and this court, as a plaintiff in addition to the estate's personal representative. That's equivalent to the government's filing a suit in the name of the Justice Department and Attorney General Holder, as two separate plaintiffs. We have reformed the caption to eliminate the estate as a party, since an executor or administrator of an estate (and the personal representative of Dane Wourms's estate must be one or the other) is the authorized suitor on the estate's behalf, not the estate itself or its beneficiaries. See Fed.R.Civ.P. 17(a)(1)(A), (B).
The plaintiff argues that the crash was caused by the police car's intentionally ramming Wourms's car, resulting in an unconstitutional seizure of his person and property. The officer denied that his car had touched Wourms's car, and the district court granted summary judgment for the officer on the ground that the evidence obtained in pretrial discovery was insufficient to enable a reasonable jury to find that the cars had collided.
By basing his claim solely on the Fourth Amendment the plaintiff commits to proving that the police car hit Wourms's car, for otherwise there was no seizure of person or car. Brower v. County of Inyo,
489 U.S. 593, 595-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989); Steen v. Myers, 486 F.3d 1017, 1021-22 (7th Cir. 2007). It's not enough that the decision of the police officer to pursue Wourms almost certainly played a causal role in the accident. Wourms was already driving erratically when the officer, warned by a 911 call from Wourms' mother that her son was drunk and " going crazy," turned on his emergency lights to signal him to pull over. The signal prompted Wourms to speed up in an effort to escape. Soon he was going 75 to 80 miles per hour on a stretch of highway that had a posted speed limit of 25 m.p.h. Fleeing the police, and at such a speed, was criminally reckless behavior, Wis. Stat. § § 346.04, 346.62; cf. State v. Bartlett, 149 Wis.2d 557, 439 N.W.2d 595, 597, 599 (Wis. App. 1989); People v. Pike, 197 Cal.App.3d 732, 243 Cal.Rptr. 54, 64-65 (Cal.App. 1988); People v. Harris, 52 Cal.App.3d 419, 125 Cal.Rptr. 40, 45-46 (Cal.App. 1975) (per curiam), for which Wourms was as a legal matter entirely responsible; the police officer had every legal right to signal Wourms to pull over because of his erratic driving and his mother's warning.
Nevertheless had the cars collided, Wourms would have had a good Fourth Amendment claim if it were proved that the collision had been the result of the pursuing officer's using excessive force to cause Worms's car to stop. Graham v. Connor, 490 U.S. 386, 388, 395-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985); Cyrus v. Town of Mukwonago, 624 F.3d 856, 861-62 (7th Cir. 2010); Anderson v. Branen, 17 F.3d 552, 558-59 (2d Cir. 1994). The exertion of force excessive in the circumstances would be unreasonable. But ramming a recklessly driven car to induce the driver to stop, or even to cause the car to crash, need not be unreasonable. Compare Scott v. Harris, 550 U.S. 372, 383-86, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), with Walker v. Davis, 649 F.3d 502, 503 (6th Cir. 2011). Suppose a driver being chased by the police is going 100 miles per hour on an open highway and ahead is a school bus moving slowly, and the pursuing police officer reasonably decides that the only way he can save the children in the school bus is by ramming the car that he's pursuing, thereby causing it to swerve off the ...