The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOSHUA OTERO, as Administrator :
of the Estate of Virgen Martinez, :
Deceased :
: NO. 22-4141
v. :
:
OFFICER CHRISTIAN KANE, et al. :
O P I N I O N
SCOTT W. REID DATE: September 12, 2024
UNITED STATES MAGISTRATE JUDGE
In this action, Joshua Otero, as Administrator for the estate of his mother, Virgen
Martinez, has sued Police Officers Christian Kane and Alexander Hernandez in their individual
and official capacities (“the Police Defendants”), Tahir Ellison, the City of Philadelphia (“the
City”), and John Doe defendants, for the death of Ms. Martinez in a car collision with Tahir
Ellison, who was fleeing from the Police Defendants.
Otero has asserted a claim against the Police Defendants and the City under 42 U.S.C. §
1983 for violating Ms. Martinez’s right to substantive due process under a state-created danger
theory; a Monell claim against the City under 42 U.S.C. § 1983 for failure to train and supervise;
and state law negligence claims against all defendants.
The Police Defendants and the City (“Defendants”) have filed a motion for partial
summary judgment under Federal Rule of Civil Procedure 56(c). For the reasons set forth
below, Defendants’ motion will be granted in part, and denied in part.
I. Factual Background1
A. The Collision
On November 19, 2020, at 8:20 a.m., the Philadelphia Police Department received a call
reporting that individuals were giving out free samples of narcotics at the intersection of East
Clearfield Street and Martha Street, in Philadelphia. Police Defendants’ and the City’s
Statement of Undisputed Material Facts in Support of Motion for Summary Judgment
(“DSUMF”) at ¶15. This location is in Kensington, a populous neighborhood in Philadelphia.
Plaintiff’s Statement of Undisputed Material Facts (“PSUMF”) at ¶113.
The police dispatcher reached out to Defendants, Officers Kane and Hernandez to
respond to this call. DSUMF at ¶16. On that morning, officers Kane and Hernandez, both of
whom graduated from the Philadelphia Police Academy nearly three years earlier, in December,
2017, were in a marked police car, wearing police uniforms. Id. at ¶19, PSUMF at ¶19. Officer
Kane drove the police car, and Officer Hernandez sat in the front passenger seat. DSUMF at
¶20. The Officers were of equal rank. Id. at ¶22.
Officers Kane and Hernandez drove to Clearfield and Martha Streets, where they saw “a
large crowd gathered around this vehicle, someone handing out small objects.” Deposition
Transcript of Alexander Hernandez, Attached to Motion as Exhibit G, at 26:4-18. Officer
Hernandez got out of the police car and approached the crowd. DSUMF at ¶ 24. The individual
in the vehicle, who turned out to be Defendant Tahir Ellison, made eye contact with Officer
Hernandez in the rear-view mirror, and then began to drive away, west on Clearfield Street. Id.
at ¶¶24 and 28. There is no allegation that Ellison was then driving at an excessive rate of speed.
1 Where there is a dispute, facts are construed in favor of Otero, as the non-moving party, except where both parties’
versions are set forth.
Officer Hernandez returned to the police car. Officer Kane switched on the police car
lights, turned the car around, and drove behind Ellison’s car. Id. at ¶¶24 and 27; PSUMF at ¶27.
Again, there is no allegation that the police officers were then moving at an excessive rate of
speed. Officer Kane testified at his deposition that his intention at that point was to pull Ellison
over. Deposition Transcript of Christian Kane, attached to Motion as Exhibit C at 31:15-31:23.
At 8:33:23 a.m., Officer Hernandez ran the license plate number of the car Ellison was driving
through the police car’s computer system, determining that there were no warrants associated
with the car, and that it had not been reported as stolen. DSUMF at ¶29 and Exhibit G at 36:8-
37:15.
Street video submitted as evidence shows Ellison stopped at a red light at the intersection
of Clearfield Street and Frankford Avenue, with the police car behind him, emergency lights on.
DSUMF at ¶30. According to Officer Kane, he “hit” the car siren “a couple of times” at this
point, however, he later testified that he was not sure how many times he hit the siren as the cars
proceeded down Clearfield Street. Id. at ¶32; Exhibit C, at 34:1-36:17.
After the light changed, Ellison continued driving west on Clearfield Street at a moderate
rate of speed. DSUMF at ¶34. However, Ellison continued through a red light at the intersection
of Clearfield and Emerald Streets. Id. at ¶35. The police car also drove through the red light at
Clearfield and Emerald Streets. Id. at ¶36.
At the next intersection after Clearfield and Emerald Streets, Ellison turned the wrong
way down Jasper Street, a small one-way street. Id. at ¶39. Officers Kane and Hernandez
followed Ellison. Id. at ¶46. At 8:33:35 a.m., Officer Hernandez announced on police radio that
Ellison “took off on us” and was going the wrong way on Jasper Street, toward Allegheny
Avenue. Id. The police officer monitoring the radio asked: “Are you following?” to which
Officer Hernandez replied in the affirmative, adding “From where we can see it from, but we are
not lighting it up or anything.” Id. at ¶47. The parties agree that “not lighting it up” meant that
the police car lights were not activated. Id. at ¶48 and PSUMF at ¶49.
When Officer Hernandez called in to the police station on his radio to report that he and
Officer Kane were pursuing Ellison, Sergeant Christopher Bloom, Sergeant Casale, and Lt.
Mella, were assigned to monitor radio traffic. City’s Answers to Plaintiff’s Request for
Admissions, attached as Exhibit L to Plaintiff’s Response, at Request No. 1. None of them
acknowledged Officer Hernandez’s transmission, asked further questions, approved, or
terminated the pursuit. Id. at Request 3.
Captain Pedro Rosario, the Commanding Officer in the 24th Police District at the time of
the events relevant to this case testified at his deposition that he, too, was monitoring the radio in
his capacity as a commanding officer. Deposition of Pedro Rosario, attached to Motion as
Exhibit T at 122:9-125:5. He also testified that, if he had heard Officer Hernandez’s
transmission and failed to “intercede,” he would have been negligent. Id. at 122:9-24. Sergeant
Bloom also testified that the pursuit should have been terminated. Deposition of Christopher
Bloom, attached as Exhibit M to Plaintiff’s Response, at 103:8-17.
When Ellison reached Allegheny Avenue, he turned east, and again passed the
intersection at Emerald Street. DSUMF at ¶55. At that point, Ellison had sped up to between 58
and 61 miles per hour, where the speed limit was 30 miles per hour, and the police car similarly
sped up to between 53 and 55 miles per hour. PSUMF at ¶ 56.
The next intersection was Allegheny Avenue and Frankford Avenue; Ellison drove
through a red light without slowing and struck the passenger’s side of a car driven by Virgen
Martinez in the middle of the intersection. DSUMF at ¶58.
The police car went through the intersection and then stopped at the scene of the accident.
Id. at ¶60. Officer Hernandez radioed that there had been a motor vehicle accident. Id. at 61.
Thirty-nine seconds passed between Officer Hernandez radioing that Ellison “took off on” them,
and him radioing that the accident occurred. Id. at ¶62.
B. Ms. Martinez
Virgen Martinez was pronounced dead at the scene of the accident at 8:50 a.m.
Plaintiff’s Expert Report of Wayne Ross, M.D., attached to Motion as Exhibit X at page 2.
However, she had earlier been observed to have been breathing, while multiple police officers
unsuccessfully attempted to free her from her car. PSUMF at ¶69. Plaintiff’s expert witness, Dr.
Wayne Ross, opined that Ms. Martinez experienced approximately one to six minutes of
conscious pain and suffering. Opinion of Wayne K. Ross, M.D., P.C., attached to Motion as
Exhibit M at 5-6.
At the time of her death, Ms. Martinez was 47 years old, and the mother of four children,
including Plaintiff Joshua Otero. Deposition Transcript of Joshua Otero, attached to Motion as
Exhibit L at 56:6-9. She was employed on a production line, boxing specialized bags used by
contractors. Id. at 60:2-5.
C. Defendant Tahir Ellison
Defendant Tahir Ellison pled guilty to third-degree murder, aggravated assault, and
driving under the influence of a controlled substance, in connection with the motor vehicle
accident in which Ms. Martinez died. Guilty Plea Transcript, Commonwealth v. Ellison,
attached to Motion as Exhibit P. Additionally, sixteen packets containing fentanyl were
recovered from the car he was driving. Property Receipt and Chemistry Unit Lab Report,
attached to Motion as Exhibit O.
At his deposition in this case, Ellison was evasive when asked about his activities on
Martha Street on the morning of the accident. Deposition Transcript of Tahir Ellison, attached
to Motion as Exhibit N at 32:23-33:4. However, he testified that he first noticed the police car
behind him at Clearfield Street and Frankford Avenue, and when it did not pass him, he believed
the police car was pursuing him. Id. at 35:30-36:8.
D. Police Investigation and Discipline of Officers Kane and Hernandez
As a result of the events described above, Officer Hernandez was taken off of street duty
and assigned to office duty for two years. Exhibit G (Deposition of Officer Hernandez) at
119:19-22. Officer Kane was also taken off street duty, for just under a year. Exhibit C
(Deposition of Officer Kane) at 176:13-14. While on office duty, both Officers received full pay,
but their weapon permits were revoked, and they were not allowed to make arrests. Defendants’
Exhibit C (Deposition of Officer Kane) at 117:5-15; Defendants’ Exhibit G (Deposition of
Officer Hernandez) at 123:3-6, 118:20-119:15.
A police department internal investigation concluded that both officers violated Directive
9.4 which establishes the parameters for police pursuits. Directive 9.4, attached to Motion as
Exhibit R; IAD Memorandum and Findings, attached to Motion as Exhibit Q page CITY0014.
Neither officer contested this finding. PSUMF at ¶86. Both officers were also found to have
violated Philadelphia Police Department Directives requiring them to wear body-worn cameras.
Id. at ¶87. Neither officer contested this finding. Id.
Officer Hernandez was found to have violated the Philadelphia Police Department
Directives for providing false information, both for having said over the radio that they “were not
lighting it up,” and when he told his supervisors, at the scene of the collision, that their lights
were not on. Id. at ¶88. Officer Hernandez pled not guilty to those findings, and he testified at
his deposition that he was ultimately found not guilty. Defendants’ Exhibit G (Deposition of
Officer Hernandez) at 121:5-122:13. However, as of the time he responded to this Motion,
Plaintiff had received no written documentation of any “not guilty” finding. PSUMF at ¶89.
E. Philadelphia Police Department Policies and Training on Pursuit
Philadelphia Police Department Directive 9.4, which was last updated on April 29, 2016,
defines vehicular pursuit as “use of a motor vehicle to chase, follow, or go after a vehicle that has
refused to stop.” Exhibit R. Directive 9.4 sets forth the official policy on vehicular pursuits. It
provides:
A vehicle pursuit is only permitted if the pursuit is necessary to effect the arrest or
prevent escape, and the officer has probable cause to believe that a person being pursued
has committed or attempted a forcible felony, or the officer has probable cause to believe
that the person being pursued possesses a deadly weapon other than the vehicle itself.
Id. A “forcible felony” is defined as one involving actual or threatened serious injury, including
murder, manslaughter, arson involving persons, aggravated assault, and sometimes sexual
crimes, robbery and kidnapping. Id. at Directive 9.4-2.
Thus, according to Directive 9.4, pursuit is justified only if it is (a) “necessary to prevent
the death or serious bodily injury of another person,” (b) to stop a suspect who attempted a
forcible felony, or (c) to stop a suspect who possesses a deadly weapon. Id. Captain Rosario
testified in his deposition that he believed that Directive 9.4 was vague and does not provide
adequate guidance to officers. Exhibit T (Deposition of Pedro Rosario) at 40:1-40:5, 55:7-56:7.
Every police recruit learns about Directive 9.4 in a two-hour Police Academy session
about vehicular pursuits, and a four-hour class about Emergency Vehicle Operations (“EVO”),
although the EVO class also covers topics other than pursuit. Deposition of Corporal Sheila
Young, attached to Motion as Exhibit S at 29:21-30:3. Recruits also use a driving simulator
presenting pursuit scenarios, during which Directive 9.4 is mentioned, although the focus is on
conducting a pursuit, rather than deciding when to instigate a pursuit. Id. at 53:10-56:8. Recruits
must pass a test on pursuit to graduate from the Police Academy. Id. 13:17-24.
The Philadelphia Police Department policy requires an officer who violates Directive 9.4
to attend a reactive class on pursuits. Id. at 80:8-24, 81:1-4. However, as of the time of their
depositions, neither Officer Kane nor Officer Hernandez had undergone this reactive training
following Ms. Martinez’s death. Exhibit S at 98:9-104:4.
Proactive classes on pursuit are conducted once monthly, and each police district is
required to send two officers. Exhibit S at 80:8-24 and 81:1-4. Proactive and reactive trainings
on vehicular pursuits were not conducted for a period of time during the COVID pandemic.
Exhibit S at 87:16-88:6, 92:3-93:10. Nor were new supervisors trained on supervising vehicular
pursuits during the pandemic, and such trainings had not resumed as of the time Captain
Christopher Bloom was deposed. Deposition of Lt. Christopher Bloom, attached to Plaintiff’s
Response as Exhibit M at 52:5-18.
Corporal Rosario testified that supervisors may discuss pursuits during roll call, which
lasts no more than fifteen minutes, but this is not mandatory, and is not documented. Exhibit T
at 60:11-61:11, 741-76:23.
Dr. Christopher Chapman, Plaintiff’s expert on police practices, opined in his report that
the Philadelphia Police Department’s training program on vehicular pursuits was inadequate.
Expert Report of Christopher Chapman, Ph.D. of March 6, 2024, attached to Motion as Exhibit
K. Robert Pusins, Defendants’ expert witness, however, has opined that the training Officers
Kane and Hernandez received was “well within reasonable law enforcement training standards
regarding pursuits and consistent with widely accepted police practices regarding pursuit
training.” Expert Report of Robert Pusins, attached to Motion as Exhibit U.
According to data compiled by the City, there were 354 police vehicular pursuits between
2015 and 2019, of which, 208 (58.7%) were unjustified. PDD Statistics, attached to Response as
Exhibit R. Between 2015 and 2020, vehicular pursuits resulted in injury or death to 36 civilians,
34 suspects, and 11 Philadelphia police officers. Id.
II. Standard for Summary Judgment
Summary judgment is warranted where the pleadings and discovery, as well as any
affidavits, show that there is no genuine dispute as to any material fact and that the moving party
is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. The moving party has the burden
of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). In response, the non-moving party must present more than mere bare
assertions, conclusory allegations, or suspicions to show the existence of a genuine issue.
Jutrowski Township of Riverdale, 904 F.3d 280, 288 (3d Cir. 2018). It is not sufficient to
reassert factually unsupported allegations contained in the pleadings. Anderson v. Liberty Lobby,
466 U.S. 242, 249 (1986); Celotex, supra, at 325.
When ruling on a summary judgment motion, the court must construe the evidence and
any reasonable inferences drawn from it in favor of the non-moving party. Anderson v. Liberty
Lobby, supra at 255; Tiggs Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).
Nevertheless, Rule 56 “mandates the entry of summary judgment ... 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.” Celotex, supra, at 323.
III. Discussion
A. The State-Created Danger Claim
Defendants’ first, and most complex claim, is that Otero cannot prove his Fourteenth
Amendment claim against the Police Defendants and the City because high speed police chases
of fleeing suspects are only unconstitutional when the officer has an intent to harm. After much
consideration of the controlling cases from the United States Supreme Court and the Court of
Appeals for the Third Circuit, and the relevant opinions authored by other judges in this Court, I
conclude, however, that Defendants’ interpretation of the law is incorrect.
As explained below, I will deny Defendants’ motion with regard to this claim and permit
Plaintiff to proceed on a theory that Defendants acted with conscious disregard of a substantial
risk of harm to Ms. Martinez.
1. Legal Principles Relevant to Otero’s Substantive Due Process Claim
a. The State-Created Danger Theory
As the Court of Appeals for the Third Circuit has explained:
Section 1983 imposes civil liability upon any person who, acting under the color of state
law, deprives another individual of any rights, privileges, or immunities secured by the
Constitution or the laws of the United States. This section does not create any new
substantive rights but instead provides a remedy for the violation of a federal
constitutional or statutory right.
Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000), citing Baker v. Collan, 443 U.S. 137, 144 at
n. 3 (1979).
To state a claim under §1983, a plaintiff must show that the defendant (a) deprived her of
a federal constitutional or statutory right (b) while acting under the color of state law. Id., citing
Parratt v. Taylor, 451 U.S. 527 353 (1981), overruled on other grounds, Daniels v. Williams,
474 U.S. 327 (1986).
As to the first element,2 the Due Process Clause of the Fourteenth Amendment provides:
“No state shall …. Deprive any person of life, liberty, or property, without due process of law.”
Only that level of government action which shocks the conscience can be considered violative of
procedural due process. County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998).
As a general principle, the government has no obligation under the Due Process Clause to
protect citizens against injuries caused by private actors. Haberle v. Troxell, 885 F.3d 170, 176
(3d Cir. 2018); citing DeShaney v. Winnebago Cty. Social Svcs. Dep’t., 489 U.S. 189, 201 (1989)
In this case, Ms. Martinez’s injuries were directly caused by Ellison, who is serving time for
third-degree murder. However, the Court of Appeals for the Third Circuit has recognized that a
constitutional violation can occur “when state authority is affirmatively employed in a manner
that injures a citizen or renders him ‘more vulnerable to injury from another source that he or she
would have been in the absence of state intervention.’” Bright v. Westmoreland County, 443
F.3d 276, 280 (3d Cir. 2006), quoting Schieber v. City of Philadelphia, 320 F.3d 409, 416 (3d
Cir. 2003). As the Bright court expressed it: “This complement to the DeShaney holding has
come to be known in its progeny as the ‘state-created danger doctrine.’” 443 F.3d at 281.
To prove a state-created danger, the following must be shown:
1. The harm ultimately caused was foreseeable and fairly direct;
2. A state actor acted with a degree of culpability that shocks the conscience;
3. A relationship between the state and the plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant’s acts; and
4. The state actor affirmatively used his or her authority in a way that created a danger to
the citizen or that rendered the citizen more vulnerable to danger than had the state not
acted at all.
Bright, supra, at 433 F.3d 281.
2 The Defendants have not raised an issue as to whether the Police Defendants acted in their official capacities.
In this case, the only disputed element is whether the defendants acted with a degree of
culpability that shocks the conscience.
b. “Shocks the Conscience”: The State-Created Danger in Police Pursuit Cases
It is obvious that a police pursuit is “inherently risky.” Sauers v. Borough of
Nesquehoning, 905 F.3d 711, 723 (3d Cir. 2018). It creates a danger to other drivers,
pedestrians, to the person pursued, and even to the pursuing officers. Nevertheless, there is also
a clear public interest in permitting the police to pursue wrongdoers without undue limitation.
Consequently, the second factor set forth in Bright – the issue of what level of culpability
“shocks the conscience” in a police pursuit case – has been much discussed in state-created
danger cases.
In Lewis v. Sacramento, the United States Supreme Court held that negligence is
“categorically beneath the constitutional due process threshold.” 523 U.S. 833, 849 (1998). In
Lewis, a sixteen-year-old boy died when the motorcycle on which he was the rear passenger
tipped over after leading the police on a chase at speeds over 100 m.p.h., and the pursuing police
car skidded into him. Id at 833. The United States Supreme Court refused to permit the parents’
procedural due process claim to go forward, stating: “We hold 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, redressable by an action under §1983.” Id. at 854. But Lewis
left open the possibility that a lower level of culpability may apply in the right circumstances.
Specifically, the Lewis court recognized that deliberate indifference could meet the
constitutional threshold in some cases, but not where a decision has to be made by the
government actor “in haste, under pressure, and frequently without the luxury of a second
chance,” such as in a prison riot or high-speed police chase. Id. at 835, quoting Whitley v.
Albers, 475 U.S. 312, 320 (1986).
Thus, later cases from the Court of Appeals for the Third Circuit see Lewis as
establishing that “the required degree of culpability varies based on the ‘circumstances of each
case,’ and, in particular, on the time pressure under ‘which the government actor had to
respond.’” Haberle v. Troxell, supra, at 855 F.3d 177, quoting Phillips v. City of Allegheny, 515
F.3d 224, 240 (3d Cir. 2008).
Significantly, in 2018, the Court of Appeals for the Third Circuit decided Sauers v.
Borough of Nesquehoning, supra. In this police pursuit case, the court applied the four-point test
for state-created danger from Bright, supra, and also formalized the principles it earlier set forth
in Haberle regarding the level of culpability required to “shock the conscience” in a §1983 case:
(a) Actions taken in a “hyperpressurized environment” require an intent on the part of the
police officer to cause harm;
(b) Actions taken “within a time frame that allows an officer to engage in ‘hurried
deliberation’” require less than an intent to cause harm – rather, “a conscious disregard of
a great risk of serious harm” is sufficient;
(c) Actions undertaken with time for “unhurried judgments” and “careful deliberation”
will shock the conscience with only “deliberate indifference.”
905 F.3d at 717-718.
Specifically as to police pursuits, the Sauers court explicitly rejected a view of Lewis as
requiring “an ‘intent to harm’ standard for all police pursuit cases, whether or not an emergency
existed at the time of the pursuit.” 905 F.3d at 721-2. Instead, it found that a conscious
disregard of a great risk of serious harm was sufficient to shock the conscience in the case before
it, where a police officer took off at speeds over 100 m.p.h. to catch up with a driver who
committed a minor traffic offense – and did not know he was being pursued – and ended in
killing an uninvolved motorist and injuring her husband. Id. at 718.
The Sauers court wrote:
Police officers now have fair warning that their conduct when engaged in a high-speed
pursuit will be subject to the full body of our state-created danger case law. That law
clearly establishes that the level of culpability required to shock the conscience exists
on a spectrum tied to the amount of time a government official has to act. In the
police pursuit context, it is also necessary to take into consideration the officer’s
justification for engaging in the pursuit. We recognize that most high-speed police
pursuits arise when officers are responding to emergencies or when they must make split-
second decisions to pursue fleeing suspects. Our holding today does nothing to alter the
longstanding principle that, in such cases, constitutional liability cannot exist absent an
intent to harm. But when there is no compelling justification for an officer to engage
in a high-speed pursuit and an officer has time to consider whether to engage in
such inherently risky behavior, constitutional liability can arise when the officer
proceeds to operate his vehicle in a manner that demonstrates a conscious disregard
of a great risk of serious harm.
Id. at 723. (Emphasis supplied).
2. Sauers Does Not Create a Bright-Line Rule Requiring Intent to Harm in Police
Pursuit Cases
It is evident from the above-quoted language that the Sauers court did not find that Lewis
created, and did not itself create, a bright-line rule requiring a plaintiff in a §1983 police pursuit
case to show that the officer acted with intent to harm.
Instead, the Sauers court plainly stated that, although most high-speed police pursuits will
be subject to an “intent to harm” standard, the standard to be applied must be considered on the
facts of each case, and will depend on (a) the justification for the pursuit; and (b) the amount of
time the officer had to decide whether to engage in the pursuit. 905 F.3d at 723.3
3 The Sauers court nevertheless granted the government defendants qualified immunity, since the law regarding
intent in a state-created danger case was unclear until it issued its decision. 905 F.3d at 723.
Defendants argue otherwise, noting that the Sauers court wrote “Lewis, then, clearly
established that an officer can be liable for a substantive due process violation resulting from a
high-speed pursuit of a dangerously fleeing suspect only if the officer intended to cause harm.”
Id at 720. However, this remark preceded the language quoted above. When the opinion is
considered as a whole, it is clear that Sauers did not preclude the possibility of a police pursuit
which was not high-speed, or a suspect who was not “dangerously fleeing.”
I am well aware that no §1983 police pursuit case in this Circuit has been decided under a
standard less than intent to harm. See Miller v. Wolk, Civ. A. No. 20-6301, 2021 WL 1604003
(E.D. Pa. Apr. 12, 2024); Donahue v. Borough of Collingdale, 22cv1695, 2024 WL 387455
(E.D. Pa. Feb. 1, 2024); Small v. Lower Paxton Township, Civ. A. No. 22-1146, 2023 WL
4631575 (M.D. Pa. July 19, 2023), motion to certify interlocutory appeal den. 2024 WL 691360
(M.D. Pa. Feb. 20, 2024); Koreny v. Smith, Civ. A. No. 17-371, 2018 WL 1141513 (W.D. Pa.
Mar. 2, 2018).4
Further, some courts have specifically decided that Lewis and Sauers preclude the
application of any standard other than intent to harm in a police pursuit case, except in the
unusual case such as Sauers, where the pursued driver is not actually fleeing.
In Koreny v Smith, a case preceding Sauers, the court determined that “intent to harm”
applied, even where the plaintiff alleged that the pursuing police officer witnessed only a minor
driving irregularity, leading to a high-speed chase which resulted in a collision causing
“catastrophic” injuries to the plaintiff, an uninvolved motorist. The court dismissed the §1983
claim, writing:
4 Nor is it clear whether other circuits have permitted police pursuit claims under a lesser standard than intent to
harm. See Lindsey v. Hyler, 918 F.3d 1109, 1112-13 (10th Cir. 2019). Other circuits, however, are not controlled
by Sauers and are therefore of limited relevance here.
Lewis did not indicate that in a high-speed pursuit case to meet the “shocks the
conscience” standard the degree of culpability would be determined on a case by case
basis by clocking the minutes of the pursuit and might at times require only deliberate
indifference or reckless disregard on the part of the pursuing officer or others involved in
pursuit decision-making; rather, the Court explicitly laid down a bright line rule. As
such, to defeat the motion to dismiss, Koreny must point to factual allegations sufficient
to plausibly show [the police defendants]’s intent to harm.
2018 WL 1141513 at *6. (Emphasis supplied).
By the time Donahue, supra, was decided in the Eastern District of Pennsylvania, the
judge deciding it had the benefit of the Sauers opinion, and knew that the degree of culpability
that shocks the conscience lay on a spectrum and would, in fact, be determined on a case-by-case
basis. 2024 WL 387455 at *3. However, the Donahue court nevertheless dismissed a §1983
case seeking to apply the Sauers “conscious disregard of great risk” standard, writing:
When choosing to use the lesser “disregard of great risk” standard, the Third Circuit
delineated a two-part test. It applies to a “reckless pursuit of an individual suspected of a
summary traffic offense (1) when there is no pending emergency and (2) when the
suspect is not actively fleeing police. Sauers, 905 F.3d at 717 (emphasis added). While
there is genuine dispute over whether [the individual pursued]’s flight constituted a
pending emergency, there is no doubt that [he], unlike the Dodge in Sauers, was refusing
to yield to police. But the Sauers test is conjunctive and, therefore, inapplicable when, as
here, only one prong is met. As such, the well-established principle that an officer needs
an intent to harm governs.
Id. at *6. (Emphasis in original).
Notably, however, the Donahue analysis of Sauers is based on a misquotation. The
“factors” cited were clearly not from a “two-part test” delineating the “disregard of great risk”
standard. Instead, they are from the Sauers court’s definition of the right at issue in that
particular case to determine whether qualified immunity protected the police defendants:
Defining a right at the appropriate level of specificity is often the most critical aspect of a
qualified immunity analysis. In undertaking that task, we are guided by the Supreme
Court’s repeated instructions to do so in light of the particular facts of the case at hand.
… We accordingly define the right at issue here as one not to be injured or killed as a
result of a police officer’s reckless pursuit of an individual suspected of a summary traffic
offense when there is no pending emergency and when the suspect is not actively
fleeing police.
Sauers at 905 F.3d 716-7. (Bold supplied; internal citations omitted).
One month later, in Miller v. Wolk, supra, the Donahue judge persisted in applying the
supposed conjunctive Sauers test that the Sauers court never created. 2024 WL 1604003 at *9.
This, despite recognizing earlier in the opinion that the “factors” were actually part of the Sauers
court’s definition of the right at issue “in light of the particular facts of the case at hand.” Id. at
*8.
Crucially, Sauers indeed created a two-point test for the application of the conscious
disregard standard, but it is not the one applied in Donahue and Miller which mandates an
“intent to harm” standard any time there is a fleeing felon. On the contrary, the Sauers court
explicitly left open the possibility of a police pursuit claim considered under a conscious
disregard standard, provided that (1) there is no compelling justification to engage in a high-
speed pursuit, and (2) the officer has time to consider whether to engage in such inherently risky
behavior. 905 F.3d at 723.
3. The Application of the Relevant Law to the Facts of This Case
Indisputably, most police pursuits will be addressed under the “intent to harm” standard,
because a police officer typically has little time to consider whether to pursue a fleeing suspect.
In Lewis, for example, the first time the two defendant police officers saw the decedent, he was
riding on a motorcycle approaching “at high speed.” 523 U.S. at 836. When one police officer
turned on his rotating lights and yelled at the boys to stop, they maneuvered the motorcycle
between the two police cars and “sped off.” Id. Clearly, this was a highly pressurized situation,
and required a split-second decision as to whether to pursue.
Here, however, Otero has adduced sufficient evidence to create vital issues of fact as to
both parts of the Sauers two-point test for determining whether conscious disregard is the
standard to apply. As an initial matter, the parties do not agree as to how much time the Police
Defendants had to decide whether to pursue Ellison. Some cases focus only on the high-speed
portion of a pursuit, ignoring the rest of the pursuit as irrelevant, but there is no precedent
requiring this. On the contrary, Sauers demands consideration of the individualized facts of a
case.
To limit the factfinder’s view to what is sometimes the last few seconds of a pursuit
would be to predetermine that Police Officers never have time to consider their actions in a
police pursuit. By that logic, every police pursuit would be “hyperpressurized,” thus requiring
an intent to harm standard. This is at odds with Sauers, which specifically held that the “shocks
the conscience” standard must be determined on a case-by-case basis. 905 F.3d at 723.
It is true that Sauers was an exceptional case where a police officer “pursued” a car that
was not fleeing. However, that does not mean that a split-second decision is automatically
assumed whenever there is a fleeing suspect. It is simply unrealistic to treat every police pursuit
of a fleeing suspect in the same way. To take an extreme example for the purpose of illustration,
if a police car were to follow a suspect for half an hour at a reasonable speed, all the time
flashing its lights and activating its siren, while the police officer screamed “I’m going to get
you!” out the window the entire time, it would be artificial to say that the pursuit began only at
minute 31, if that is when the suspect accelerated to a high speed.
Thus, whether the Police Defendants had time for “hurried deliberation” is an issue of
fact, and it is an unresolved issue of fact. According to Otero, pursuit began “the second that
[the Police Defendants] decided to follow this guy after they noticed him handing out the drug
packets.” Transcript of Motion for Summary Judgment Hearing, May 30, 2024, at 37:22-24. It
continued for seven blocks, at a low speed, before Ellison turned onto Jasper Street. Id.;
Memorandum in Support of Plaintiff’s Response at 13.
The police car emergency lights were turned on no later than the moment they reached
the intersection of Clearfield Street and Frankford Avenue, two blocks before they reached
Jasper Street, still at a normal rate of speed. DSUMF at ¶30. The Police Defendants also “hit”
their siren an unknown number of times as they drove down Clearfield Street. Exhibit D at 34:1-
36:17. They continued following Ellison after he drove through a red light at Clearfield at
Emerald Streets. DSUMF at ¶¶ 35 and 36. On the basis of this evidence, Otero is entitled to
argue to the jury that the Police Defendants in this case were not in the hyperpressurized
environment which compels the “intent to harm” standard.
Also unresolved as a question of fact is whether a compelling justification existed for the
Police Defendants to pursue Ellison. According to Police Directive 9.4, it did not. Ellison did
not commit or attempt a forcible felony, and the Police Defendants had no probable cause to
believe that he possessed a deadly weapon other than the car itself. Exhibit Q at 0014. It is not
precisely clear how relevant Directive 9.4 is to the Police Defendants’ liability under §1983.5
However, it is surely relevant to understanding whether the Police Defendants believed a
5 Numerous courts have assumed that the violation of a police regulation is irrelevant to the constitutional standard.
Koreny, supra, at 2108 WL 1141513 *9; Shields, at 2022 WL 4586124 at *8; Small, at 2023 WL 4631575 at *12.
However, all of these cases apply the “intent to harm” standard. Under a “conscious disregard” standard, it may be
otherwise. Notably, in Davis v. Township of Hillside, 190 F.3d 167, 171 (3d Cir. 1999), the Court of Appeals for the
Third Circuit wrote: “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-the-conscience test under the due process clause”.
compelling justification existed at the time they initiated pursuit, since they were trained on
Directive 9.4. Hernandez’s inaccurate representations that the police car never had its lights on
could suggest that he considered the pursuit unjustified, and wanted to conceal it. DSUMF at ¶
¶48 and 88. Alternatively, the finder of fact may credit Hernandez’s deposition testimony that he
never realized the lights were activated. Exhibit D at 105:23-106:6.
Defendants have argued that the fact that Ellison was handing out drug samples created a
compelling justification for pursuit, despite Directive 9.4. Transcript of Motion for Summary
Judgment Hearing at 21:5-9. The finder of fact may ultimately agree. However, this is a
disputed issue of fact.
Because Sauers permits Otero to argue that Officers Kane and Hernandez violated the
“conscious disregard of a substantial risk of harm” standard, and because undecided issues of
material fact exist as to whether they indeed violated this standard, summary judgment is
inappropriate on Otero’s substantive due process claim. Defendants’ motion for summary
judgment will be denied as to this claim.
B. Otero Cannot Show Intent to Harm
Although Otero’s §1983 substantive due process claim will remain in this case, I will
grant Defendants’ motion to the extent that they argue that Otero has not come forward with
evidence supporting an argument that the Police Defendants acted with an intent to harm.
In Lewis, the United States Supreme Court specifically analogized due process cases
involving police pursuits to those determining officer liability in a prison riot: “In those
circumstances, liability should turn on ‘whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and sadistically for the very purpose of causing
harm.’” 523 U.S. at 852-3, quoting Whitley v. Albers, 475 U.S. 312, 320-321 (1986). This
concept of malice and sadism should, therefore, be imported into its later 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, redressable by an action under §1983.”
523 U.S. at 854.
The Court of Appeals for the Third Circuit has interpreted the “intent to harm” standard
very narrowly. No intent to harm was found in Davis v. Township of Hillside, 190 F.3d 167, 171
(3d Cir. 1999), even though the defendant police officer deliberately rammed a car fleeing at
high speed.
Otero points to Clark v. Merrell, Civ. A. No. 19cv1579, 2021 WL 288791 at *5 (E.D. Pa.
Jan. 28, 2021), where the judge refused to dismiss a §1983 claim on a 12(b)(6) motion, stating
that the fact that the police defendant pursued a suspect on a motorcycle in a dangerous fashion
even “in defiance of a direct order from his superior” not to pursue dirt bikes, combined with his
“repeated attempts to conceal, cover up or simply lie” about the circumstances of the pursuit
could support a finding that he acted with an intent to harm. Otero argues that Officers Kane and
Hernandez similarly acted in defiance of Regulation 9.4, and attempted to cover it up.
Clark, however, was a decision not to dismiss a claim immediately after the case was
filed. This is a summary judgment motion, where discovery is complete. Neither the direct
statements of the parties nor the other evidence in this case suggest that the Police Defendants
intended to harm Ellison, physically or legally, and they certainly did not intend to harm Ms.
Martinez. Otero is entitled to argue that they harmed Ms. Martinez despite this, through
conscious disregard of a substantial risk to her, but he has not shown the facts necessary to
support a claim under the “intent to harm” standard.
C. Qualified Immunity
Qualified immunity shields individual state actors from liability for civil damages
“insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).
Police officers are entitled to qualified immunity under §1983 unless (1) they violated a federal
statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established
at the time they acted. District of Columbia v. Wesby, 538 U.S. 48, 62-3 (2018).
The Police Defendants in this case are not entitled to qualified immunity. Sauers was
decided in 2018. Thus, a reasonable police officer acting in November, 2020, would have been
aware that the level of culpability required to shock the conscience in a police pursuit context,
and therefore violate a constitutional right, existed on a spectrum tied to the amount of time the
police officer had to act, and the justification for engaging in the pursuit. Sauers, 905 F.3d at
723. Donahue and Miller were not decided until 2024, and Shields is a 2022 decision, so they
could not have been in the minds of the Police Defendants in 2020.
Defendants argue that Officer Hernandez is entitled to qualified immunity because he
was not the driver of the pursuing police car, and had no authority to control whether or not
Officer Kane pursued Ellison. However, as Otero points out, Officer Kane was of equal rank
with Officer Hernandez and had no authority to command Officer Hernandez to engage in a
pursuit. Significantly, nothing in Officer Hernandez’s testimony suggests that there was any
disagreement between him and Officer Kane, or that the pursuit was solely the idea of Officer
Kane. Exhibit D at, e.g., 96:17-19 (Officer Hernandez reading from his 483 Form: “My partner
and I decided to pull the vehicle over based on the observations we made”). Defendants,
therefore, have not shown that Officer Hernandez is entitled to qualified immunity.
D. The Monell Claims
In Monell v. Dep’t of Social Services of the City of New York, the United States Supreme
Court decided that a local government cannot be sued under §1983 for injury inflicted solely by
its employees or agents, under a respondeat superior theory: “Instead, it is when execution of a
government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts
may fairly be said to represent official policy, inflicts the injury that the government as an entity
is responsible under §1983.” 436 U.S. 658, 694 (1978).
More specifically, the United States Supreme Court has ruled that the inadequacy of
police training may serve as the basis for a Monell claim if the failure to train amounted to
deliberate indifference to the rights of the people with whom the police come into contact:
It may seem contrary to common sense to assert that a municipality will actually have a
policy of not taking reasonable steps to train its employees. But it may happen that in
light of the duties assigned to specific officers or employees the need for more or
different training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said to have been
deliberately indifferent to the need.
City of Canton, Ohio v. Harris, 489 U.S. 378, 388, 390 (1989).
However, failure to train is not an easy argument to make. As the Canton court warned:
“In resolving the issue of a city’s liability, the focus must be on the adequacy of the training
program in relation to the tasks the particular officers must perform.” Id. It is not enough to
show that (a) a particular officer was unsatisfactorily trained, or that an otherwise sound program
has occasionally been negligently administered; (b) a particular accident could have been
avoided if an officer had better or more training, where the program is adequate to enable
officers to respond to usual and recurring situations; or that (c) adequately trained officers made
a mistake. Id. at 390-1.
Similarly, to prove a claim of failure to supervise, a plaintiff must show a failure which
reflects a policy of deliberate indifference to constitutional rights. Reynolds v. Municipality of
Norristown, Civ. A. No. 15-16, 2015 WL 4450979 at *11 (E.D. Pa. July 17, 2015), citing Jewell
v. Ridley Township, 497 Fed. App’x 182, 186 (3d Cir. 2012), and see Ashley v. Kosehba, Civ. A.
No. 22-982, 2023 WL 6200805 at *6 (M.D. Pa. Sep. 22, 2023) (“Under a failure to supervise
theory, a plaintiff must show (1) municipal policymakers know that employees will confront a
particular situation; (2) the situation involves a difficult choice or a history of employees
mishandling, and (3) the wrong choice by an employee will frequently cause deprivation of
constitutional rights”) (internal citations omitted).
As above, Otero has asserted claims against the City of Philadelphia under both failure to
train and failure to supervise. Defendants argue that both claims should be dismissed as a matter
of law. I agree that Otero has not shown a basis for pursuing a case under the theory of a failure
to supervise. However, he has shown the existence of unresolved issues of material fact
regarding a failure to train.
1. Failure to Train
Defendants argue that Otero cannot show failure to train because, although his expert
witness, Christopher Chapman, Ph.D., offered opinions on how to better train police officers on
pursuit, the City already offers a robust training program. In essence, their argument is that
Otero falls into the second of what we might call the “three ways to fail to show a failure to train
claim” described in Canton, i.e., calling for “better or more training” where the existing program
is “adequate to enable officers to respond to usual and recurring situations.” 489 U.S. at 391.
As Defendants point out, Directive 9.4 arguably requires more care in instigating pursuits
that is required by the Constitution. Further, any officer involved in an unjustified pursuit is to
be retrained. Training on pursuit is also conducted proactively, and can be given at roll call. In
this case, Officers Kane and Hernandez were placed on desk duty.
Nevertheless, Otero has come forward with analytical evidence showing that, according
to the Philadelphia Police Department’s own figures, over half of all police pursuits were
unjustified in every year from 2016 to 2020 (the last year assessed), for an average of 58.7%
unjustified pursuits. Exhibit R and Plaintiff’s Memorandum of Law at 58. During those years,
36 civilians were injured or killed, as were 34 suspects and 11 police officers, as a result of
police pursuits. Exhibit R and Plaintiff’s Memorandum of Law at 56. Of these, three were
killed, other than Ms. Martinez, although the data does not indicate whether the deaths were of
civilians, suspects, or officers. Exhibit R and Plaintiff’s Memorandum of Law at 57.
This data does not reveal every important detail – for example, there is no way to know
whether the injuries and deaths occurred during justified or unjustified pursuits. Further, 58.7%
violation of Directive 9.4 is definitively not equivalent to 58.7% constitutional violations.
However, viewed in the light most favorable to Otero, the data attached as Exhibit R is
relevant toward the issue of whether the City was on notice that its training on pursuit was
inadequate. Defendants have not argued that the City took action in response to this data. Otero
is entitled to argue to a jury that for the City to create an apparently robust training policy, and
then watch it fail in practice over five years without taking action, demonstrates deliberate
indifference to the rights of people with whom the police come into contact, under Monell.6
6 Or, as phrased in Canton, supra, Otero may argue that in light of the duties assigned to pursuing officers the need
for more or different training was so obvious, and the inadequacy of the current training so likely to result in the
violation of constitutional rights, that the failure to address the issue showed deliberate indifference.
2. Failure to Supervise
The parties disagree as to whether Otero’s Complaint can be read to include a §1983
claim of failure to supervise. This need not be decided here since the evidence does not support
such a claim.
It is not at all difficult to accept as reasonable an argument that Captain Rosario, Sergeant
Bloom, Sergeant Casale, and/or Lieutenant Mella, should have stopped the pursuit of Ellison’s
car. Given that both Captain Rosario and Sergeant Bloom testified that the pursuit should have
been stopped, and that Captain Rosario testified that a failure to stop the pursuit would constitute
negligence, government inaction leading to Ms. Martinez’s death is not hard to identify.
Nevertheless, Otero has not come forward with evidence that the City has a policy or
custom of failing to respond to radio reports of police pursuits, as is required to state a Monell
claim. Captain Rosario testified that he did not hear the transmission from Officer Hernandez
about pursuing Ellison on Jasper Street. Plaintiff’s Exhibit J at 93:11-19. Sergeant Bloom
testified that he could not recall whether he heard that transmission. Plaintiff’s Exhibit M at
49:4-11.
Thus, even construing the evidence in favor of Otero, he has shown, at most, some degree
of misfeasance on this particular occasion, but not a policy or custom. Accordingly, Defendants’
motion will be granted as it pertains to a claim of failure to supervise.
E. State Negligence Claims
Finally, Defendants move to dismiss the state negligence claim against Officer
Hernandez on the basis that he was not operating the police vehicle during the pursuit. They
argue that the only applicable exception to state immunity from negligence claims under the
Political Subdivision Tort Claims Act, 42 Pa. C.S. §8541 et seq., is the motor vehicle exception
set forth at §8542(b)(1). It speaks to the negligent “operation” of a motor vehicle. Id.
Otero has not responded to Defendants’ argument in this regard. Given the apparent
logic of Defendants’ argument, and the lack of a response, I will grant Defendants’ motion and
dismiss the state law negligence claim against Officer Hernandez.
IV. Conclusion
In accordance with the above discussion, I will grant Defendants’ Motion for Partial
Summary Judgment in part, and deny it in part, as described above.
BY THE COURT:
Scott W. Reid
____________________________________
SCOTT W. REID
UNITED STATES MAGISTRATE JUDGE