1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-24-1999

Davis v. Twp. of Hillside

Precedential or Non-Precedential:

Docket 98-6176

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Recommended Citation

"Davis v. Twp. of Hillside" (1999). 1999 Decisions. Paper 231.

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Filed August 24, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 98-6176 

HERRON GARNETT DAVIS, 

 Appellant, 

v. 

TOWNSHIP OF HILLSIDE; PEARL WIGGINS; 

JAMES WIGGINS; CHRISTINA WIGGINS; 

SAM SMITH; DEIDRA BOSTON; CHRISTINA RASH; 

LOREN RAGIN, Police Officer; RAGIN, Police Officer;

ROE, Police Officer; POLICE OFFICERS I through X; 

TERRENCE CLERK; LOUIS PANARESE, Sergeant; 

JOHN SENCHYSHYN, Patrolman; 

GERARD PYDESKI, Patrolman 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civ. No. 96-cv-05299) 

District Judge: Dickinson R. Debevoise 

Argued June 3, 1999 

Before: SCIRICA, McKEE, Circuit Judges, and 

SCHWARZER,* District Judge 

(Filed August 24, 1999) 

_________________________________________________________________ 

*The Honorable William W Schwarzer, Senior United States District 

Judge for the Northern District of California, sitting by designation. 
 ROBERT T. RICHLAN, ESQUIRE 

 (ARGUED) 

 Paragano & Keough 

 75 Claremont Road, 1st Floor 

 Bernardsville, NJ 07924 

 Attorneys for Herron Garnett Davis, 

 Appellant 

 MORRIS R. ZUCKER, ESQUIRE 

 (ARGUED) 

 JAMES K. HANEY, ESQUIRE 

 Zucker, Facher & Zucker 

 100 Executive Drive 

 Suite 360 

 West Orange, NJ 07052 

 Attorneys for Township of Hillside; 

 Loren Ragin; Terrence Clerk; Louis 

 Panarese; John Senchyshyn; Gerard 

 Pydeski, Appellees 

 JEAN-CLAUDE LABADY, ESQUIRE 

 (ARGUED) 

 MAUREEN M. JOHNSTON, ESQUIRE 

 Law Offices of Robert Sanderford 

 17-01 Polett Drive 

 P.O. Box 768 

 Fairlawn, NJ 07410 

 Attorneys for Deidra Boston, Appellee 

OPINION OF THE COURT 

SCHWARZER, District Judge: 

We must decide whether plaintiff is entitled to go to trial 

on his substantive due process claim on evidence that the 

defendant police officers conducted a high-speed chase of a 

suspect in violation of regulations, ending when their 

vehicle rammed the pursued vehicle causing a multi-car 

collision which severely injured plaintiff, a pedestrian 

bystander. We hold that County of Sacramento v. Lewis, 

118 S.Ct. 1708 (1998), is dispositive and that, in the 

 2 
absence of evidence from which a jury could infer a

purpose to cause harm unrelated to the legitimate object of 

the chase, the evidence does not satisfy the requisite 

element of arbitrary conduct shocking the conscience. 

Accordingly, we affirm the summary judgment for 

defendants. 

FACTUAL AND PROCEDURAL BACKGROUND 

On the night of November 13, 1994, Dwayne Cook was 

driving a stolen Acura in a residential neighborhood in 

Newark, New Jersey. Police officers in two patrol cars 

observed the Acura stopped in a traffic lane at a stop sign 

for what the officers considered an unusually long time. 

Noting also damage to the car's rear end, the officers 

decided to investigate and one of the patrol cars moved 

alongside the Acura to pull it over while the officers had the 

vehicle plate checked. At this point the Acura pulled away, 

making a left-hand turn out of the intersection. One of the 

police cars pulled ahead, coming close to hitting the Acura. 

The Acura then sped away with the marked police cars in 

pursuit as close as one car length at speeds up to seventy 

miles an hour with their overhead lights on but without 

sirens activated. Cook, knowing he was driving a stolen car, 

did not stop until one of the police cars, as Cook described 

it, bumped into the rear of the Acura, giving it a hard push. 

This caused Cook to hit his head on the steering wheel and 

to pass out. The Acura spun out of control and collided 

with two other cars, one of which was propelled into 

plaintiff, who was standing on the sidewalk, severely 

injuring him. 

Plaintiff filed this action in the District Court against the 

Township of Hillside, individual Hillside police officers, and 

owners of the other cars involved in the collision alleging 

violations of federal and state law. The District Court 

granted summary judgment for defendants on all of the 

federal claims and dismissed the state law claims without 

prejudice under 28 U.S.C. S 1367(c) (1994). Plaintiff appeals 

the judgment for the individual officers on his 42 U.S.C. 

SS 19831 and 1985 (1994) claims and the dismissal of his 

state law claims. 

_________________________________________________________________ 

1. The District Court interpreted plaintiff 'sS 1983 claim as a 

substantive 

due process claim. On appeal, plaintiff properly does not take issue with 

 3 
DISCUSSION 

I. 42 U.S.C. S 1983 SUBSTANTIVE DUE 

PROCESS CLAIM 

Plaintiff contends that the facts of this case make it 

distinguishable from Sacramento County v. Lewis and

therefore preclude summary judgment. Our review is 

plenary, see Ingram v. County of Bucks, 114 F.3d 265, 267 

(3d Cir. 1998); we view disputed facts in the light most 

favorable to plaintiff, and we draw all reasonable inferences 

in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 247 (1986); Getahun v. Office of the Chief 

Administrative Hearing Officer of the Executive Office for 

Immigration Review of the United States Department of 

Justice, 124 F.3d 591, 594 (3d Cir. 1997). 

Plaintiff's attempted distinction of Lewis rests on three 

premises: (1) that the officers were not acting on a report of 

the commission of a crime; (2) that they willfully violated 

applicable police department regulations; and (3) that they 

used deadly force on the pursued vehicle. We consider 

these purported distinctions seriatim.2 

_________________________________________________________________ 

that interpretation. Even if the use of a police car to stop Cook's flight 

could be found to be a Fourth Amendment seizure, see Brower v. County 

of Inyo, 489 U.S. 593, 599 (1989); Adams v. St. Lucie County Sheriff's 

Dep't, 962 F.2d 1563, 1571 (11th Cir. 1992), the claim would be 

personal to Cook and could not be asserted by a bystander such as 

plaintiff. See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). Substantive 

due process analysis is therefore appropriate in this case because 

plaintiff 's claim is not covered by the Fourth Amendment. Lewis, 118 

S.Ct. at 1714. 

2. Another distinction, not raised by plaintiff and immaterial to the 

outcome of this case, is that in Lewis the injury was to a suspect while 

in this case it was to a bystander. In our pre-Lewis decision in Fagan v. 

City of Vineland, 22 F.3d 1296 (3d Cir. 1994), we applied the shocks-theconscience standard to the S 1983 claims of bystanders, without 

discussion. We agree with the Ninth Circuit's reasoning in Onossian v. 

Block, 175 F.3d 1169, ____ (1999), that under Lewis "if a police officer 

is justified in giving chase, that justification insulates the officer 

from 

constitutional attack, irrespective of who might be harmed or killed as a 

consequence of the chase." See also Jones v. Sherill, 827 F.2d 1102, 

1106-7 (6th Cir. 1987) (similar standard applied to injured bystander). 

 4 
(1) In Lewis, the police pursued two boys on a motorcycle 

which the officers observed operating at high speed. See 

118 S.Ct. at 1712. Neither boy had anything to do with the 

fight that had prompted the call that brought the officers to 

the scene. See id. In this case, the officers' suspicions were 

raised by Cook's unusually long stop at the intersection 

and rear-end damage to the car. Nothing in Lewis suggests 

that courts are free to second-guess a police officer's 

decision to initiate pursuit of a suspect so long as the 

officers were acting "in the service of a legitimate 

governmental objective," id. at 1716, here, to apprehend 

one fleeing the police officers' legitimate investigation of 

suspicious behavior. Because such circumstances, 

requiring a balancing of the need to stop a suspect's flight 

from the law against the threat a high-speed chase poses to 

others, "demand an officer's instant judgment, even

precipitate recklessness fails to [suffice for Due Process 

liability.]" Id. at 1720. The critical factor in determining 

whether Fourteenth Amendment liability for a high-speed 

chase may be imposed is whether the officer's conduct can 

be found to shock the conscience, for which the evidence 

must show intent to harm the suspect physically. See id. 

(2) In Lewis, the court of appeals had reversed summary 

judgment for the defendant officer, finding a triable issue of 

fact because he had "apparently disregarded the 

Sacramento County Sheriff's Department's General Order 

on police pursuits." Id. at 1712. The Supreme Court

reversed, holding that "high-speed chases with no intent to 

harm suspects physically or to worsen their legal plight do 

not give rise to liability under the Fourteenth Amendment," 

and that "[t]he fault claimed on [the officer's] part . . . fails 

to meet the shocks-the-conscience test." Id. at 1720. Lewis 

thus squarely refutes plaintiff's contention that the officers' 

violation of police department regulations, which might 

be probative of recklessness or conscious disregard of 

plaintiff's safety, suffices to meet the shocks-theconscience test under the due process clause. 

(3) In Lewis, the chase ended when the pursued 

motorcycle tipped over, throwing Lewis to the pavement 

where the police car coming to a stop accidentally skidded 

into him causing his injury. Here, the chase ended when 

 5 
the pursuing police car bumped into the rear of Cook's car, 

causing him to lose control of the car, which led to the 

collision in which plaintiff was injured. Plaintiff argues that 

the deliberate ramming of Cook's car by the police vehicle 

amounted to use of a deadly weapon, which permits the 

drawing of an inference that the police acted with the intent 

to cause physical injury. We disagree. Lewis does not 

permit an inference of intent to harm simply because a 

chase eventuates in deliberate physical contact causing 

injury. Rather, it is "conduct intended to injure in some 

way unjustifiable by any government interest [that] is the 

sort of official action most likely to rise to the conscienceshocking level." Id. at 1718 (emphasis added). It is not 

disputed that the ramming occurred in the course of the 

chase. That physical contact of some sort between the 

pursued and pursuing vehicles might occur in the course of 

a high-speed chase, particularly at its conclusion, is 

foreseeable. It would undermine Lewis' premise to limit 

liability to conscience-shocking conduct if courts were to 

segment a high-speed chase and examine elements in 

isolation from each other. 

Here then, as in Lewis, the officers were faced with 

lawless behavior--the flight from their investigation--for 

which they were not to blame. They had done nothing to 

cause Cook's high-speed driving or his flouting of their lawenforcement authority. Cook's action was instantaneous 

and so, by necessity, was the officers' response. Their intent 

was to do their job as law enforcement officers, not to cause 

injury. If they acted recklessly or imprudently, there is no 

evidence that their actions "were tainted by an improper or 

malicious motive." Id. at 1721. Because their actions did 

not shock the conscience, they were entitled to summary 

judgment. 

II. 42 U.S.C. S 1985 CLAIM 

Plaintiff also alleges that two of the individual police 

officers who chased Cook violated 42 U.S.C. S 1985 (1994) 

by filing false or misleading statements to investigators 

about their conduct on the night of the accident in an 

attempt to hide their culpable conduct. The only provision 

of S 1985 that could be relevant to plaintiff 's allegation is 

the second part of S 1985(2), which prohibits conspiracy to 

 6 
obstruct justice with the intent to deny equal protection of 

the laws. Because plaintiff does not allege that the officers 

colluded with the requisite " `racial, or .. . otherwise classbased, invidiously discriminatory animus,' " see Kush v. 

Rutledge, 460 U.S. 719, 725 (1983) (quoting Griffin v. 

Breckenridge, 403 U.S. 88, 102 (1971)), the district court 

correctly dismissed this claim. 

III. STATE LAW NEGLIGENCE CLAIMS 

Having dismissed all of plaintiff 's federal claims, the 

district court dismissed without prejudice the state law 

claims against the owners of the civilian cars involved in 

the accident pursuant to 28 U.S.C. S 1367(c). The district 

court had discretion to do so and we find no error.

CONCLUSION 

The judgment is AFFIRMED. 

 7 
McKEE, Circuit Judge, concurring: 

I agree that the District Court's grant of summary 

judgment to the defendants should be affirmed. I write 

separately, however, to amplify my understanding of what 

we hold today, because I am concerned that our decision 

may be interpreted too broadly, and thereby result in an 

unjustified extension of County of Sacramento v. Lewis, 118 

S.Ct. 1708 (1998). 

The mere fact that force may have been used while 

effectuating an arrest does not automatically establish that 

the force was "in relation" to a legitimate object of the arrest 

under a S 1983 analysis. Davis must lose here, not because 

the challenged force occurred "in relation to" a high-speed 

chase, but because his allegations of a substantive due 

process violation are rooted in negligence and allege, at 

most, a reckless disregard of safety. That is clearly 

insufficient under Lewis. However, I believe the evidence 

here, taken in the light most favorable to the plaintiff, could 

support allegations of an intentional ramming of the Acura 

Cook was driving. Had Davis alleged such intentional 

conduct, I do not think his suit would be appropriate for 

summary judgment under Lewis. 

I. 

Paragraph 13 of the Complaint states: "plaintiff . . . 

alleges that the police vehicle either struck the 1993 Acura 

. . . or chased such vehicle at such a high rate of speed so 

as to cause the (stolen) vehicle to collide with other 

vehicles, setting off a chain reaction . . . ." Paragraph 14 

alleges that the pursuing officers were: "grossly negligent 

and [acted] with reckless and willful disregard for the safety 

of others . . . " in commencing and continuing the chase. 

Paragraph 18 alleges that the pursuing officers"either 

operated their vehicles in a negligent fashion, or permitted 

their vehicles to be operated in a negligent fashion such 

negligence being a contributing factor in the . . . collision. 

. . ." (emphasis added). Paragraph 21 alleges "the police 

chase . . . was knowingly improper and with wilful and/or 

reckless disregard for public safety and /or against 

established police guidelines and was engaged in with 

 8 
wanton, wilful and reckless disregard for the safety of Davis 

and other persons and continued in such a manner as to 

shock the conscience of any reasonable person." 

As the majority correctly points out, Lewis requires more. 

There, the Supreme Court held that absent "an intent to 

harm suspects physically or to worsen their legal plight" 

there could be no liability for a substantive due process 

violation in the S 1983 context. Lewis, 118 S. Ct. at 1720. 

It is the intent to inflict force beyond that which is required 

by a legitimate law enforcement objective that "shocks the 

conscience" and gives rise to liability under S 1983 for 

injuries arising out of a high-speed chase. Id. at 1717 

("conduct intended to injure in some way unjustifiable by 

any government interest is the sort of official action most 

likely to rise to the conscience-shocking level"). See also 

Maj. Op. at 6. Here, as in Lewis, the "complaint alleges a 

variety of culpable states of mind: negligently responsible 

. . . reckless, gross negligence and conscious disregard for 

[the plaintiff 's] safety . . . and oppression fraud and malice. 

The subsequent summary judgment proceedings revealed 

that the height of the fault actually claimed was conscious 

disregard . . ." Id. at 1720. That is simply not sufficient. 

In Lewis the Court was careful to note that the pursuing 

officers may have acted imprudently, even recklessly, but 

that the evidence did not support a conclusion that they 

intended to "terrorize, cause harm, or kill" the decedent. Id. 

at 1708. In fact, there the uncontradicted evidence was that 

the police car skidded over 140 feet trying to stop once the 

police saw that the fleeing motorcycle had crashed. That is, 

"the chase ended when the pursued motorcycle tipped over, 

throwing Lewis to the pavement where the police car

coming to a stop accidentally skidded into him causing his 

injury." Maj. Op. at 5 (emphasis added). The fatal injuries 

sustained by Lewis were clearly a tragic, unintended result 

of the high-speed pursuit. There were no allegations that 

the police deliberately ran the decedent over or rammed the 

motorcycle. 

Here, if the record supported a finding that police

gratuitously rammed Cook's car, and if plaintiff properly 

alleged that they did so to injure or terrorize Cook, liability 

could still attach under Lewis. Thus, for example, if 

 9 
plaintiff alleged (and a fact finder could reasonably 

conclude) that the officers rammed Cook to "teach him a 

lesson" or to "get even" for subjecting them to the dangers 

of such a chase, Lewis would not shield the officers from 

liability even though they were ultimately effectuating an 

arrest. However, the District Court held that under Lewis a 

plaintiff must also provide evidence of a purpose to cause 

harm "independent of the process of stopping the suspect." 

Order at 9-10. I do not believe that is supported by Lewis. 

If police officers decided to stop a fleeing suspect by 

inflicting spinal cord injury in the hopes that the suspect 

would never walk again, the application of such force would 

not be truly "independent of the process of stopping the 

suspect." Nevertheless, their intent to harm, injure or 

terrorize the suspect might well shock the conscience and 

subject them to liability under Lewis. Thus, I do not read 

the majority opinion as holding that police can use any 

amount of force during a high speed chase no matter how 

tenuously the force is related to the legitimate law 

enforcement objective of arresting the fleeing suspect. 

It has long been established that law enforcement 

officials may not act in a manner that "shocks the 

conscience" even when their actions relate to the otherwise 

legitimate object of obtaining credible evidence or

prosecuting criminal behavior. People of California v. 

Rochin, 342 U.S. 165, 172 (1952) (pumping suspect's

stomach to obtain valuable, credible evidence of a drug 

crime violates due process). Neither the decision in Lewis, 

nor our decision here, creates a "high-speed-pursuit" 

exception to the fundamental obligation of law enforcement 

officials to respect "certain decencies of civilized conduct" 

even when carrying out their official duties. Lewis, 118 S. 

Ct. at 1717 (quoting Rochin, 342 U.S. at 173, with 

approval). The police in Rochin were liable because, even in 

the context of enforcing the law, "the Due Process Clause 

[is] intended to prevent government officials `from abusing 

their power, or employing it as an instrument of 

oppression.' " Lewis, 118 S. Ct. at 1716 (quoting Collins v. 

Harker Heights, 503 U.S. 115, 126 (1992)). "[I]t was not the 

ultimate purpose of the government actors [in Rochin] to 

harm the plaintiff, but they apparently acted with full 

 10 
appreciation of what the Court described as the brutality of 

their acts." Lewis, 118 S. Ct. at 1718 n.9. 

Lewis merely establishes that the environment in which 

law enforcement officers perform their duties informs the 

substantive due process analysis. 

 [W]hen unforeseen circumstances demand an officer's 

 instant judgment, even precipitate recklessness fails to 

 inch close enough to harmful purpose to spark the 

 shock that implicates `the large concerns of the 

 governors and the governed.' 

Lewis, 118 S. Ct. at 1720. Accordingly, "high-speed chases 

with no intent to harm suspects physically or to worsen 

their legal plight do not give rise to liability under the 

Fourteenth Amendment, redressible by an action under 

S 1983." Id. If there is "reasonable justification [for their 

actions] in the service of a legitimate governmental 

objective," they are not liable under Lewis even though they 

acted in a manner that was negligent or even reckless. 

Lewis, 118 S. Ct. at 1716. In Lewis the Court stated: 

 [W]hile prudence would have repressed [the officer's] 

 reaction, the officer's instinct was to do his job as a law 

 enforcement officer, not to induce [the motorcycle 

 driver's] lawlessness, or to terrorize, cause harm or kill. 

 Prudence, that is, was subject to countervailing 

 enforcement considerations . . . there is no reason to 

 believe that [the police] were tainted by an improper or 

 malicious motive. . .3 

_________________________________________________________________ 

3. Similarly, in Fagan v. City of Vineland, 22 F.3d 1296 (3d Cir. 1994), 

we held that "where a police officer uses a police vehicle to terrorize a 

civilian, and he has done so with malicious abuse of official power 

shocking the conscience, a court may conclude that the officers have 

crossed the constitutional line." 22 F.3d at 1308. In Fagan, a police 

officer attempted to stop and issue a warning to the driver of a Camaro 

when he saw a passenger standing up through the vehicle's open T-top 

roof. When the driver refused to stop, the officer commenced a highspeed pursuit through a residential neighborhood. The Camaro 

eventually ran a red light at an intersection and broad-sided a pick-up 

truck. The two occupants of the truck and one of the passengers in the 

Camaro were killed; two other passengers in the Camaro suffered 

crippling injuries. Because the officer's actions were reckless, but not 

 11 
Id. at 1721. 

By way of example, I do not think that under Lewis police 

would be justified in firing shots directly at the driver of a 

fleeing car after initiating pursuit for a minor traffic 

violation, knowing that the fleeing car was about to reach 

a dead-end or some barricade that would force the driver to 

stop. I believe Lewis would allow a reasonable fact finder to 

conclude, based on the circumstances, that the action of 

the apprehending officers was intended to injure or

terrorize the driver, thus permitting a determination that 

the driver's substantive due process rights had been 

violated. Such an intent to harm may be understandable 

given the dangers of law enforcement, but it also would be 

intolerable and absolutely collateral to any legitimate law 

enforcement objective. 

II. 

The majority states: "Lewis does not permit an inference 

of intent to harm simply because a chase eventuates in 

deliberate physical contact causing injury." Maj. Op. at 6. 

I must respectfully disagree with the breadth of that 

statement. I think the validity and the strength of any such 

inference depends entirely upon the totality of 

circumstances surrounding the contact, including the 

severity of the contact. The Supreme Court was careful to 

except from its holding cases where there was an intent to 

harm, terrorize or kill. I believe that there may well be those 

rare situations where the nature of an officer's"deliberate 

physical contact" is such that a reasonable factfinder 

would conclude the officer intended to harm, terrorize or 

kill. 

_________________________________________________________________ 

"arbitrary, intentional, [or] deliberate," we affirmed the trial court's 

grant 

of summary judgment in favor of the government. Although Fagan was 

decided prior to the Supreme Court's decision in Lewis, we similarly held 

that "where a person suffers injury as an incidental and unintended 

consequence of official action, the abuse of power contemplated in the 

due process and eighth amendment cases does not arise." Id. at 1307 

(emphasis added). 

 12 
There often is no way to establish subjective intent, other 

than by the reasonable fact finder's common sense 

evaluation of the circumstances. See Rock v. Zimmerman, 

1991 WL 148490, *8 (3d Cir. (Pa.)) (inferring intent from 

circumstances is "entirely appropriate and is often the only 

means of proving criminal intent"). Lewis establishes as a 

matter of law that the circumstances of the chase at issue 

there were insufficient to establish the required intent. It 

did not abrogate the rules of deductive reasoning and 

common sense that juries use every day. Indeed, intent, 

particularly in constitutional cases, often must be inferred 

from circumstantial evidence. See, e.g., Village of Arlington 

Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 

265-68 (1977) (determination of discriminatory motive 

requires inquiry into circumstantial evidence); Oregon v. 

Kennedy, 456 U.S. 667, 675 (1982) (intent of prosecutor to 

subvert the protections afforded by the Double Jeopardy 

Clause may be inferred from objective facts and 

circumstances); Parkway Garage, Inc. v. City of 

Philadelphia, 5 F.3d 685, 693-98 (1993) (relying on

circumstantial evidence to find high level officials liable for 

civil rights violations and recognizing that inS 1983 cases 

circumstantial evidence "is often the best and most reliable 

proof of the subjective motivations for the conduct of the 

actors"). 

Moreover, although I agree that the alleged violation of 

police regulations here does not advance the plaintiff 's 

claim, see Maj. Op. at 5, I think that the violation of such 

regulations will sometimes be relevant. For example, here, 

plaintiff submitted evidence that the officers did not comply 

with police department guidelines and regulations for 

initiating and conducting high-speed pursuits. One of those 

guidelines characterizes such conduct as use of "deadly 

force" akin to firing a weapon and states that officers 

should engage in such contact only "as a last resort to 

prevent eminent death or serious injuries." I believe a jury 

should be able to consider the alleged violations of 

department regulations, along with evidence contradicting 

the officers' account of what happened, to the extent they 

are relevant to the officers' intent. Defendants here have 

completely denied any police involvement in the accident 

which resulted in Davis' injuries. The police claim that they 

 13 
broke off the pursuit blocks before the accident because 

their overhead lights had malfunctioned. However, there is 

strong evidence to the contrary. There is evidence that, 

although the overhead lights did have problems in the past, 

they had been repaired 24 hours before the accident. 

Moreover, departmental regulations require officers to 

check their patrol cars for equipment problems before going 

on patrol. The car that collided with Cook was used on the 

very next shift, and there is no evidence that the patrol car 

was taken for any repairs to its overhead lights following 

the accident. Finally, eye-witness accounts directly 

contradict the officers' denials of involvement. Richard Hall, 

a disinterested bystander, submitted a sworn affidavit 

stating that the police car did "bump" or "hit" the Acura, 

possibly twice, before the Acura went out of control. 

Dwayne Cook, the driver of the Acura, also testified that he 

felt a "jerk," which was caused by the police car bumping 

him. He further testified that the impact caused him to hit 

his head on the steering wheel and pass out. 

As noted previously, none of this is relevant here because 

plaintiff alleges, at most, that the police acted recklessly. 

However, I believe such violations and conflicts in

testimony would be relevant in an appropriate case as 

probative of a defendant's intent. 

III. 

In conclusion, I concur in the judgment of the majority. 

However, as I mentioned at the outset, I write separately 

because I think there are subtle, and perhaps misleading, 

nuances arising from the decision in Lewis which merit 

further discussion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 14