Estate of Decedent Lolomania Soakai v. Abdelaziz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTATE OF DECEDENT No. 23-4466

LOLOMANIA SOAKAI; LAVINIA

D.C. No.

SOAKAI, an individual and personal

3:23-cv-00381-SK

representative of Estate; DANIEL

FIFITA, an individual; SAMIEUELA

FINAU, an individual; INA OPINION

LAVALU, an individual,

Plaintiffs - Appellees,

v.

WALID ABDELAZIZ, in his

individual capacity as a police officer

for the city of Oakland; JIMMY

MARIN-CORONEL, in his

individual capacity as a police officer

for the city of Oakland,

Defendants - Appellants,

and

CITY OF OAKLAND, a municipal

corporation,

Defendant.

2 ESTATE OF SOAKAI V. ABDELAZIZ

Appeal from the United States District Court

for the Northern District of California

Sallie Kim, Magistrate Judge, Presiding *

Argued and Submitted November 20, 2024

San Jose, California

Filed May 16, 2025

Before: Susan P. Graber, Michelle T. Friedland, and Patrick

J. Bumatay, Circuit Judges.

Opinion by Judge Graber;

Dissent by Judge Bumatay

SUMMARY **

Qualified Immunity

The panel affirmed the district court’s denial of

defendant police officers’ motion for judgment on the

pleadings based on qualified immunity in a 42 U.S.C. § 1983

action brought by innocent bystanders, who were injured by

a fleeing suspect who lost control of his car and crashed into

them as a result of a high-speed car chase.

*

The parties consented to proceed before a magistrate judge. See 28

U.S.C. § 636(c).

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ESTATE OF SOAKAI V. ABDELAZIZ 3

Plaintiffs alleged that defendants violated their

Fourteenth Amendment substantive due process rights by

(1) conducting a high-speed chase for the purpose of

harming the fleeing suspect in a manner that exceeded any

legitimate law enforcement purpose, and (2) failing to

summon or render emergency services for plaintiffs after the

crash that defendants affirmatively helped to cause.

Addressing plaintiffs’ purpose-to-harm claim, the panel

held that plaintiffs stated a substantive due process claim by

plausibly alleging that, as bystanders, they were injured

when defendants conducted a high-speed chase with a

purpose to harm the suspect in a manner that exceeded any

legitimate law enforcement purpose. Because the law was

clearly established before the date of the car chase that

defendants’ conduct was unconstitutional, defendants were

not entitled to qualified immunity. The panel rejected

defendants’ assertion that to state a Fourteenth Amendment

substantive due process claim, a bystander injured by a high-

speed police chase must plausibly allege that the officer

acted with an improper purpose to harm the bystander

specifically. This Circuit’s precedent recognizes that an

officer owes a duty to all those in the vicinity, including

bystanders, to limit their intent to harm to legitimate law

enforcement purposes.

Addressing plaintiffs’ alternative, narrower state-created

danger claim, the panel held that—although the Fourteenth

Amendment generally does not confer any affirmative right

to governmental aid—plaintiffs plausibly alleged that

defendants affirmatively created danger by initiating a car

chase that led to a crash and then acted with deliberate

indifference to plaintiffs’ worsening medical condition by

failing to summon help. If plaintiffs’ allegations are true,

defendants violated clearly established law by acting with

4 ESTATE OF SOAKAI V. ABDELAZIZ

deliberate indifference to the injuries that resulted from the

collision that defendants affirmatively helped to cause.

Dissenting, Judge Bumatay wrote that the officers were

entitled to qualified immunity. The majority adopted a

brand-new theory of substantive due process—contrary to

precedent and to the Supreme Court’s admonition against

such judicial overreach—by ruling for the first time that a

bystander may assert a substantive due process claim against

an officer if the bystander can show that the officer intended

to harm someone else. Given that this novel theory of due

process conflicts with Supreme Court and Ninth Circuit

precedent, the law was not clearly established at the time of

the accident that intent to harm a suspect is enough to press

a due process claim for injuries to bystanders. The majority

also expanded the state-created-danger doctrine to create a

new constitutional duty requiring law enforcement officers

to render or summon medical aid for civilians harmed by

private actors under certain circumstances.

COUNSEL

Patrick M. Buelna (argued), Matthew Norman, and Lateef

H. Gray, Pointer & Buelna LLP, Oakland, California;

Adante D. Pointer, Burris Nisenbaum Curry & Lacy LLP,

Oakland, California; for Plaintiffs-Appellees.

David B. Newdorf (argued), Newdorf Legal, Oakland,

California; Richard W. Osman and Sheila D. Crawford,

Bertrand Fox Elliot Osman & Wenzel, San Francisco,

California; Aimee G. Hamoy, Kaufman Dolowich & Voluck

LLP, Oakland, California; for Defendants-Appellants.

ESTATE OF SOAKAI V. ABDELAZIZ 5

OPINION

GRABER, Circuit Judge:

Plaintiffs, a group of innocent bystanders, were injured

by a driver who lost control of his car and crashed into them

as a result of a high-speed car chase. Plaintiffs sued two

police officers, claiming that the officers violated Plaintiffs’

substantive due process rights in two ways: by initiating and

conducting the chase for the purpose of harming the fleeing

suspect and by failing either to call for emergency services

or to render aid after the crash. Assessing only the pleadings,

the district court ruled that the officers are not entitled to

qualified immunity. The officers timely appeal. In the

highly unusual circumstances of this case—including

plausible allegations that the officers intentionally caused

harm for reasons unrelated to any legitimate law

enforcement purpose connected to the chase, and that they

witnessed the crash yet drove away and later stated that they

hoped that the crash caused a fatality—we affirm.

BACKGROUND

The facts alleged in this case are jarring and tragic. We

must take all plausible allegations as true at this stage of the

proceeding. Al Saud v. Days, 50 F.4th 705, 709 (9th Cir.

2022).

On June 25, 2022, in Oakland, California, Officers

Jimmy Marin-Coronel and Walid Abdelaziz, police officers

of the Oakland Police Department and Defendants in this

action, spotted a person who, they believed, had participated

in an illegal car rally. Even though the Oakland Police

Department’s policy authorized high-speed car chases only

in cases involving certain violent crimes, Defendants began

6 ESTATE OF SOAKAI V. ABDELAZIZ

pursuing the suspect through busy city streets at speeds

exceeding 60 miles per hour. Allegedly intent on making the

suspect crash, Defendants did not turn on their lights or

sirens, nor did they report the chase to the dispatcher. Those

actions, too, violated departmental policy.

The chase ended when the suspect’s car smashed into an

area near a popular taco truck, where Lolomania Soakai

(“Lolomania”) had stopped with his family and friends on

the way home from a graduation ceremony. Lolomania

suffered a direct hit and died of his injuries in front of his

mother, Plaintiff Lavinia Soakai (“Lavinia”), who broke her

back in the crash. Other members of their group, including

Plaintiffs Daniel Fifita, Ina Lavalu, and Samiuela Finau, also

suffered severe injuries.

Despite witnessing the crash, Defendants neither stopped

to render aid nor summoned emergency services. Instead,

Defendants drove by the scene—still with their lights and

sirens off—and did not return until they heard other officers

approaching the area of the crash. When they did return,

Defendants pretended not to have been at the scene

previously. While still at the site of the crash, Defendants

were overheard saying that “they were satisfied the [suspect]

appeared injured and hoped that the [suspect] had died in the

crash.”

Lolomania’s estate and the individual Plaintiffs sued,

asserting claims under 42 U.S.C. § 1983 for violations of the

Fourteenth Amendment. 1 Defendants moved for judgment

1

Plaintiffs also brought a claim for liability against the City of Oakland

under Monell v. Department of Social Services, 436 U.S. 658 (1978),

and a claim for violations of California’s Bane Act against the individual

Defendants and the City. Those claims, which the district court

dismissed, are not presently before us.

ESTATE OF SOAKAI V. ABDELAZIZ 7

on the pleadings, arguing that they were entitled to qualified

immunity. The district court denied the motion with respect

to Plaintiffs’ § 1983 claim, and Defendants filed this timely

interlocutory appeal.

STANDARD OF REVIEW

We review de novo the denial of a motion for judgment

on the pleadings premised on qualified immunity, Carrillo v.

County of Los Angeles, 798 F.3d 1210, 1218 (9th Cir. 2015),

employing the same standards used when reviewing a

motion to dismiss, Gregg v. Haw., Dep’t of Pub. Safety, 870

F.3d 883, 887 (9th Cir. 2017). Consequently, in evaluating

the parties’ arguments, “[w]e view the allegations in the

complaint as true and in the light most favorable to

[Plaintiffs].” Al Saud, 50 F.4th at 709.

DISCUSSION

Plaintiffs claim that Defendants violated their

constitutional rights by (A) conducting a high-speed chase

for the purpose of harming a fleeing suspect unrelated to any

legitimate law enforcement purpose and (B) failing to

summon or render emergency services after the crash. Both

of those theories sound in the Fourteenth Amendment’s

guarantee of substantive due process, which protects against

“executive abuse[s] of power” that “shock[] the conscience.”

County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). 2

For each theory, which we will address in turn, Defendants

2

In addition to representing her son’s estate, Lavinia seeks to recover for

two different violations of her own due-process rights. The first stems

from the injuries she personally suffered, and the other arises from the

loss of a familial relationship. Because the same shocks-the-conscience

standard applies to both types of claims, Porter v. Osborn, 546 F.3d 1131,

1137 (9th Cir. 2008), we will not differentiate between them in this

opinion.

8 ESTATE OF SOAKAI V. ABDELAZIZ

are entitled to qualified immunity if they can show (1) that

the allegations in the operative complaint, accepted as true,

“do not make out a violation of a constitutional right”; or

(2) “that any such right was not clearly established at the

time of the alleged misconduct.” Hampton v. California, 83

F.4th 754, 765 (9th Cir. 2023).

A. Purpose-to-Harm Claim

Plaintiffs first contend that the complaint states a claim

that Defendants violated clearly established law by chasing

the fleeing suspect for an improper purpose, harming

bystanders in the process. We agree.

1. Constitutional Violation

a. Legal Framework

To violate the substantive component of the Due Process

Clause, official conduct must “shock[] the conscience.”

Porter, 546 F.3d at 1137 (quoting Lewis, 523 U.S. at 846).

Because behavior “that shocks in one environment may not

be so patently egregious in another,” Lewis, 523 U.S. at 850,

courts have developed two methods for defining conscience-

shocking conduct: the deliberate-indifference test and the

purpose-to-harm test, Scott v. Smith, 109 F.4th 1215, 1228

(9th Cir. 2024). We decide which test to apply by “ask[ing]

‘whether the circumstances are such that actual deliberation

[by the officer] is practical.’” Wilkinson v. Torres, 610 F.3d

546, 554 (9th Cir. 2010) (second alteration in original)

(quoting Porter, 546 F.3d at 1137).

Because officers engaged in a high-speed chase must

“operate under great pressure and make repeated split-

second decisions” with “precious little time for

deliberation,” Bingue v. Prunchak, 512 F.3d 1169, 1176 (9th

Cir. 2008), we apply the more stringent purpose-to-harm test

ESTATE OF SOAKAI V. ABDELAZIZ 9

“to all high-speed chases,” id. at 1177 (emphasis omitted).

Under that test, a police officer violates substantive due

process only if the officer “act[s] with the purpose to harm a

civilian” for reasons “unrelated to the legitimate law

enforcement objectives of arrest, self-defense, or the defense

of others.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 454

(9th Cir. 2013).

Satisfying the purpose-to-harm test is inherently difficult

for those injured by high-speed chases. Officers almost

always chase a suspect for a legitimate law enforcement

purpose and, even when they might not, legitimate

justifications are readily available. See Porter, 546 F.3d at

1137 (explaining that officers chasing a suspect are generally

“reacting to the urgent public safety threat of fleeing

motorists in a situation where inaction could be the most

dangerous option”); Lewis, 523 U.S. at 853 (noting that

police pursuits can serve “the need to stop a suspect and

show that flight from the law is no way to freedom”); cf.

Scott v. Harris, 550 U.S. 372, 383 (2007) (stating, in a Fourth

Amendment case, that the fleeing suspect had “posed an

actual and imminent threat to the lives of any pedestrians

who might have been present, to other civilian motorists, and

to the officers involved in the chase”). Indeed, we are

unaware of any car-chase case in this circuit in which a

plaintiff passed the purpose-to-harm test on the merits. See

Onossian v. Block, 175 F.3d 1169, 1172 (9th Cir. 1999)

(affirming grant of summary judgment to officers because

the evidence suggested that “they were attempting to remove

a dangerous driver from the streets,” not to cause harm);

Bingue, 512 F.3d at 1177 (similar).

The task is not impossible, however, because the

purpose-to-harm test turns on the officer’s subjective intent.

See A.D., 712 F.3d at 453 (“The purpose to harm standard is

10 ESTATE OF SOAKAI V. ABDELAZIZ

a subjective standard of culpability.”). A court employing

that test will not second-guess an officer’s decision—even if

seemingly ill-advised in hindsight—if the officer “acts with

a legitimate purpose . . . in mind.” Tan Lam v. City of Los

Banos, 976 F.3d 986, 1003–04 (9th Cir. 2020). But the

availability of an otherwise plausible excuse will not shield

the officer from liability if the officer acts with an “ulterior

motive[]” to harm that is unrelated to legitimate law

enforcement purposes. Gonzalez v. City of Anaheim, 747

F.3d 789, 798 (9th Cir. 2014) (en banc); see also A.D., 712

F.3d at 453 (noting that, even if an officer ultimately arrests

the suspect, “he still violates the [D]ue [P]rocess [C]lause if

he used force with only an illegitimate purpose in mind”).

At the motion-to-dismiss stage, the key question is

whether, accepting all well-pleaded allegations of fact as

true, the officer subjectively intended to act, not to further a

legitimate law enforcement purpose, but instead to induce

lawlessness, to terrorize, to cause harm, to kill, to teach the

suspect a lesson, or to get even. Porter, 546 F.3d at 1140–

41; see also Zion v. County of Orange, 874 F.3d 1072, 1077

(9th Cir. 2017) (holding that an officer could be liable for a

physical assault if he “was acting out of anger or emotion

rather than [to achieve] any legitimate law enforcement

purpose”).

b. Analysis

Here, Defendants concede that the complaint adequately

pleaded that they acted with a purpose to harm the fleeing

suspect for reasons unrelated to a legitimate law enforcement

objective. The complaint alleges that Defendants acted “in

an effort to make [the] suspect lose control, severely injure

himself[,] and die.” Defendants admit that we must treat as

true that allegation, see Opening Br. at 21 n.2 (“[T]he Court

ESTATE OF SOAKAI V. ABDELAZIZ 11

must accept as true the allegation of the [complaint] that

[D]efendants had intended to harm the suspect.”), the

plausibility of which Defendants do not challenge. 3 The

complaint also alleges that “Defendants use[d] their law

enforcement powers to cause unnecessary harm to a person,”

(emphasis added), and Defendants do not clearly and

distinctly argue otherwise. To the contrary, Defendants

premise their argument on the assumption that Plaintiffs

pleaded a purpose to harm the suspect unrelated to a

legitimate law enforcement objective. See id. at 21 (“If the

officer has evil intent that shocks the conscious [sic] when it

comes to the suspect, does that matter if the plaintiffs are the

bystanders? That is the key question in the present case.”

(emphasis added)).

Defendants’ sole contention on appeal is that any

improper intent to harm the fleeing suspect is irrelevant here

because, in the context of a purpose-to-harm claim, the

object of an officer’s improper intent to harm and the injured

plaintiff must be one and the same. Put another way,

Defendants assert that, to state a claim, a bystander injured

by a high-speed police chase must plausibly allege that the

officer acted with an improper purpose to harm the bystander

specifically.

We reject Defendants’ argument. In Lewis, the Supreme

Court applied “a much higher standard of fault than

deliberate indifference,” Lewis, 523 U.S. at 852, because an

officer deciding whether to give chase must quickly balance

the benefits of pursuit with the risks involved, id. at 853.

When addressing the benefits, the Supreme Court

3

Defendants did not raise the issue of plausibility in their opening brief.

And at oral argument, Defendants’ lawyer confirmed that Defendants

were not contesting the plausibility of Plaintiffs’ allegation.

12 ESTATE OF SOAKAI V. ABDELAZIZ

concentrated on suspects, citing “the need to stop a suspect

and show that flight from the law is no way to freedom.” Id.

That focus makes sense; an officer chasing a suspect is,

presumably, typically motivated by something related to that

suspect. When discussing the risks, though, Lewis took a

broader view, noting “the high-speed threat to all those

within stopping range,” including “suspects, their

passengers, other drivers,” and “bystanders.” Id. (emphasis

added). Implicit in Lewis’s discussion is the recognition

that, although the object of a high-speed police chase might

be to catch the fleeing motorist, an officer owes a duty to all

those in the vicinity, including bystanders. See Onossian,

175 F.3d at 1171 (noting that, in Lewis, “the duty of the

pursuing police officer is defined generally, without specific

reference to the suspect being pursued”).

Lewis thus confirms what common sense dictates: High-

speed car chases create a clear, known risk of harm, not only

to the fleeing driver and to the officers, but also to passengers

and bystanders. Because the risks taken by those

participating in the chase generate—and, thus, cannot be

isolated from—the peril faced by bystanders, it would be

illogical to distinguish between those dangers when

considering whether an officer ought to be liable for injuries

that result from the decision to give chase.

Lewis’s application of the purpose-to-harm test

solidifies that principle. Lewis involved an officer’s pursuit

of a motorcycle carrying two teenagers—the driver and his

passenger—that ended with the passenger’s death. Lewis,

523 U.S. at 836–37. Even though the sole question before

the Supreme Court was whether the officer had violated the

passenger’s rights, the Court applied the purpose-to-harm

ESTATE OF SOAKAI V. ABDELAZIZ 13

test by considering the officer’s intentions and actions only

in relation to the driver:

[The officer] was faced with a course of

lawless behavior for which the police were

not to blame. They had done nothing to cause

[the driver’s] high-speed driving in the first

place, nothing to excuse his flouting of the

commonly understood law enforcement

authority to control traffic, and nothing

(beyond a refusal to call off the chase) to

encourage him to race through traffic at

breakneck speed forcing other drivers out of

their travel lanes. [The driver’s] outrageous

behavior was practically instantaneous, and

so was [the officer’s] instinctive response.

While prudence would have repressed the

reaction, the officer’s instinct was to do his

job as a law enforcement officer, not to

induce [the driver’s] lawlessness, or to

terrorize, cause harm, or kill.

Id. at 855. Indeed, the Supreme Court did not comment on

whether the officer might have intended to harm the

passenger specifically. Lewis thus established that an officer

can—though the officer in Lewis ultimately did not—violate

the substantive due process rights of one individual by

chasing another for illegitimate purposes.

If Lewis left any doubt regarding bystanders, we have

since resolved it. In Moreland v. Las Vegas Metropolitan

Police Department, 159 F.3d 365 (9th Cir. 1998), officers

accidentally shot and killed a bystander while attempting to

incapacitate an active shooter. Id. at 368–69. Reviewing the

14 ESTATE OF SOAKAI V. ABDELAZIZ

substantive due process claim brought by the bystander’s

family, we held that Lewis’s test applies, not just to “high-

speed police chases,” but wherever “an officer inadvertently

harm[s] a bystander while responding to a situation in which

the officer [is] required to act quickly to prevent an

individual from threatening the lives of others.” Id. at 372

(emphases added). Defendants’ reading of our caselaw

would render that statement nonsensical. How could an

officer be said to have intended to harm the person that they

“inadvertently” injured?

Further contradicting Defendants’ argument, our

purpose-to-harm analysis in Moreland did not consider only

the officers’ intentions with respect to the bystander.

Instead, we affirmed the grant of summary judgment to the

officers because they (1) had sought to harm the suspect for

legitimate reasons and (2) did not intend to harm the

bystander at all. See id. at 373 (noting that the plaintiffs

neither “dispute[d] that [the officers] w[ere] entitled to use

deadly force to halt the gunfight,” nor contended that the

officers “intended to harm [the bystander]”). The decisive

question was, in other words, whether the officers had

intended to harm someone—rather than the bystander,

specifically—for reasons unrelated to a legitimate law

enforcement objective.

In Onossian, we clarified that Moreland’s reading of

Lewis applies equally in car-chase cases. See Onossian, 175

F.3d at 1172 (“It is a small step from applying Lewis to a

bystander harmed in a gunfight to applying it to another

driver harmed in the very situation in which the Lewis test

originated.”). Accordingly, we held that bystanders may

recover for injuries caused by a high-speed chase, but only

ESTATE OF SOAKAI V. ABDELAZIZ 15

if they satisfy the purpose-to-harm test. 4 Id. at 1171–72.

And when addressing the merits, we followed Lewis’s and

Moreland’s leads by looking for “evidence that [the]

deputies . . . intended to cause harm to anyone,” id. at 172

(emphasis added), rather than to any one specific individual.

Nearly a decade later, we reaffirmed that approach in another

car-chase case involving an injured bystander. See Bingue,

512 F.3d at 1177 (asking whether the officer “acted with an

intent to harm,” without specifying a particular object of that

intent).

Adopting Defendants’ position would require us to

overrule Onossian and Bingue, which, of course, we cannot

do. See, e.g., In re Complaint of Ross Island Sand & Gravel,

226 F.3d 1015, 1018 (9th Cir. 2000) (per curiam) (“A three

judge panel of this court cannot overrule a prior decision of

this court.”). Because officers generally must follow a route

chosen by the fleeing suspect, officers engaged in a high-

speed chase presumably cannot predict precisely where the

pursuit will take them or, more importantly, who specifically

will be endangered when they get there. We thus have

difficulty imagining a scenario in which an officer forms the

intent to harm a bystander in the brief moments during which

4

It was suggested during oral argument that this decision was merely

dictum because the plaintiffs in Onossian did not win. We disagree for

two reasons. First, a reasoned decision on an issue actually presented on

appeal creates binding law, “regardless of whether [addressing the issue]

was in some technical sense ‘necessary’ to our disposition of the case.”

Barapind v. Enomoto, 400 F.3d 744, 751 (9th Cir. 2005) (en banc) (per

curiam). The decision identified in Onossian was certainly reasoned;

indeed, half of the opinion is dedicated to it. Second, the decision was

technically necessary to the result. By deciding that Lewis’s purpose-to-

harm test applied to claims brought by bystanders, the panel determined

the applicable legal standard—a step the panel was required to take

before it could address the merits.

16 ESTATE OF SOAKAI V. ABDELAZIZ

the bystander is in their line of sight. Given that reality,

adopting Defendants’ rule would make it all but impossible

for any bystander to recover for injuries caused by a high-

speed police chase. We have held, however, that “a

bystander injured in a high-speed police chase ‘must show

that the behavior of the police in his case meets the Lewis

standard.’” Bingue, 512 F.3d at 1175 (alterations adopted)

(quoting Onossian, 175 F.3d at 1172). And implicit within

that holding is the idea that Lewis’s standard can actually be

satisfied in at least some cases involving bystanders.

Even were we permitted to set our caselaw aside,

Defendants’ position would remain flawed. The

fundamental question for the purpose of deciding whether

Plaintiffs have stated a substantive due process claim is

whether Defendants’ alleged conduct shocks the conscience.

Porter, 546 F.3d at 1137. “[C]onduct intended to injure in

some way unjustifiable by any government interest” sits at

the far “end of the culpability spectrum” and, therefore, “is

the sort of official action most likely to rise to the

conscience-shocking level.” Lewis, 523 U.S. at 849. We

see no reason to think that conduct is any less shocking when

it injures someone other than the intended target, particularly

when harm to a third party is a clear, known risk and is

entirely foreseeable. 5

We therefore hold that Plaintiffs have stated a

substantive due process claim by plausibly alleging that

they, as bystanders, were injured when Defendants engaged

5

Suppose that an officer walks into a crowd and shoots at an unarmed

civilian purely for the purpose of causing pain. Surely, such conduct

would shock the conscience whether the officer hits the intended target

or instead strikes a bystander standing a few feet away.

ESTATE OF SOAKAI V. ABDELAZIZ 17

in a high-speed chase for the purpose of harming the fleeing

suspect without a legitimate law enforcement objective.

2. Clearly Established Law

For many of the same reasons discussed above, we also

hold that Defendants violated clearly established law. The

“unlawfulness of an officer’s conduct [is] ‘clearly

established’” if, “at the time of the officer’s conduct, the law

was sufficiently clear that every reasonable official would

understand that what he is doing is unlawful.” Hampton, 83

F.4th at 769 (quoting District of Columbia v. Wesby, 583

U.S. 48, 63 (2018)) (some internal quotation marks omitted).

Lewis, Moreland, and Onossian provided such clarity well

before June 25, 2022—the date of the alleged car chase. To

recap, Lewis established that conducting a high-speed chase

“with [the] intent to harm suspects physically or to worsen

their legal plight” violates substantive due process. Lewis,

523 U.S. at 854. Moreland held that Lewis’s standard

applies when “an officer inadvertently harm[s] a bystander”

in other high-pressure situations. Moreland, 159 F.3d at 372

(emphasis added). And Onossian made clear that

Moreland’s interpretation of Lewis governs car-chase cases

involving injured bystanders. Onossian, 175 F.3d at 1172.

Defendants make much of the fact that neither the

Supreme Court nor our court has ruled in favor of a

bystander injured in a high-speed chase when addressing the

merits of a substantive due process claim. But whether the

plaintiffs in prior cases succeeded in establishing a

substantive due process claim is beside the point. Instead,

we must determine whether the law provided “fair warning

that [Defendants’ alleged] conduct [was] unconstitutional.”

Ballentine v. Tucker, 28 F.4th 54, 66 (9th Cir. 2022)

(quoting Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064

18 ESTATE OF SOAKAI V. ABDELAZIZ

(9th Cir. 2013)) (internal quotation marks omitted). And

here, the constitutional rule set forth in Lewis, Moreland, and

Onossian “appl[ies] with obvious clarity” to the conduct

alleged in this case. Dodge v. Evergreen Sch. Dist. #114, 56

F.4th 767, 784 (9th Cir. 2022); see also A.D., 712 F.3d at

454–55 (explaining that, given controlling precedent, “it

would be ‘clear to a reasonable officer’ that killing a person

with no legitimate law enforcement purpose violates the

Constitution” (quoting Brosseau v. Haugen, 543 U.S. 194,

199 (9th Cir. 2004))).

B. State-Created Danger Claim

As an alternative, narrower theory of relief, Plaintiffs

allege that Defendants’ failure to summon aid after the crash

delayed Plaintiffs’ receiving medical treatment, resulting in

additional harm to Plaintiffs. The claim is narrow because it

addresses only those additional harms that Plaintiffs would

not have suffered had Defendants provided or summoned aid

right after the crash, not the injuries caused by the crash

itself. And the claim is an alternative one because, if

Plaintiffs prevail on their purpose-to-harm claim, they will

be entitled to recover for all injuries sufficiently connected

to the crash—including both their initial injuries and those

caused by delayed medical treatment. See Borunda v.

Richmond, 885 F.2d 1384, 1389 (9th Cir. 1988) (“A plaintiff

who establishes liability for deprivations of constitutional

rights actionable under 42 U.S.C. § 1983 is entitled to

recover compensatory damages for all injuries suffered as a

consequence of those deprivations.”).

Because the state-created danger claim is relevant only

if Defendants fail to prove the primary theory, described

above, we will assume in this part of the opinion that

Defendants did not give chase with a purpose to harm

ESTATE OF SOAKAI V. ABDELAZIZ 19

unrelated to a legitimate law enforcement objective. With

that in mind, we hold that Defendants are not entitled to

qualified immunity with respect to Plaintiffs’ state-created

danger claim.

1. Constitutional Violation

The Fourteenth Amendment “generally does not confer

any affirmative right to governmental aid.” Patel v. Kent

Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011). But there are

exceptions to that rule, including, as relevant here, the “state-

created danger” exception, which applies when the state fails

“to protect a plaintiff that it affirmatively place[d] in danger

by acting with deliberate indifference to a known or obvious

danger.” Sinclair v. City of Seattle, 61 F.4th 674, 680 (9th

Cir. 2023) (quoting Martinez v. City of Clovis, 943 F.3d

1260, 1271 (9th Cir. 2019)) (internal quotation marks

omitted).

To make use of the state-created danger exception, a

plaintiff must satisfy two requirements, both of which relate

to the defendant-officer’s conduct. First, the plaintiff must

establish that the officer’s affirmative conduct exposed the

plaintiff “to a foreseeable danger that she would not

otherwise have faced.” Martinez v. High, 91 F.4th 1022,

1028 (9th Cir.), cert. denied, No. 24-130, 145 S. Ct. 547

(2024). Second, the plaintiff must show that the officer acted

with “deliberate indifference to a known or obvious danger.”

Id. (quoting Murguia v. Langdon, 61 F.4th 1096, 1111 (9th

Cir. 2023)) (internal quotation marks omitted).

Those two requirements can fit together in different

ways. Often, the affirmative conduct at issue under the

exception’s first prong will be the same conduct that

illustrates the officer’s deliberate indifference for purposes

of the second. In such circumstances, officers are held liable

20 ESTATE OF SOAKAI V. ABDELAZIZ

for “demonstrat[ing] deliberate indifference in creating a

danger.” Bracken v. Okura, 869 F.3d 771, 779 n.7 (9th Cir.

2017); see also Kennedy v. City of Ridgefield, 439 F.3d

1055, 1065 (9th Cir. 2006) (concluding that sufficient

evidence existed to suggest that the officer “acted

deliberately and indifferently to the danger he was

creating”).

By contrast, a substantive due process violation also can

arise if (1) an officer’s affirmative conduct exposes the

plaintiff to danger, and (2) the officer then acts with

deliberate indifference when “responding”—or, as the case

may be, failing to respond—to that danger. Bracken, 869

F.3d at 779 n.7. Simply put, “[w]hen an officer’s affirmative

conduct creates a foreseeable risk of harm to the plaintiff, the

officer will be liable for failing to intercede if the officer

demonstrates ‘deliberate indifference’ to the plaintiff’s

plight.” Id. at 778–79; see also L.W. v. Grubbs, 92 F.3d 894,

896 (9th Cir. 1996) (“[D]eliberate indifference on the part of

the responsible official, to the safety of employees in the

presence of known danger, created by official conduct, is

sufficient to establish a due process violation . . . .”

(emphasis added)).

Bracken exemplifies the second category of cases.

There, an officer prevented the plaintiff from leaving an

event. Bracken, 869 F.3d at 775. Private security guards

also working at the event then arrived and began to assault

the plaintiff. Id. The officer still refused to let the plaintiff

leave, and the security guards eventually tackled the plaintiff

to the floor. Id. at 779. Reviewing the plaintiff’s substantive

due process claim, we concluded that the doctrine’s first

prong was satisfied because the officer’s “active

participat[ion] in the incident” exposed the plaintiff to

danger that he would not have faced had the officer allowed

ESTATE OF SOAKAI V. ABDELAZIZ 21

him to leave. Id. (emphasis added). We then went on to hold

that a reasonable jury could find that the officer acted with

deliberate indifference when he “chose to do nothing” as the

security guards continued their assault. Id. at 780 (emphasis

added). In other words, the officer created the danger by

preventing the plaintiff’s departure, and the officer then was

deliberately indifferent by failing to intervene in the assault.

Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989)—

where we first considered the doctrine of state-created

danger—illustrates the same principle. The officer in that

case pulled a car over, had it towed, and arrested its

intoxicated driver. Id. at 586. The officer then drove away,

stranding the driver’s passenger in an area with a high crime

rate, and an unknown man later attacked the passenger. Id.

As in Bracken, the officer’s affirmative conduct—arresting

the driver and impounding the car—exposed the passenger

to risks that she would not have faced otherwise. And by

driving off on his own, without helping the passenger in any

way, the officer failed to address that risk. We thus held that,

by showing that the officer did nothing to ameliorate the

danger he had created, the passenger had “raised a genuine

issue of fact tending to show that [the officer] acted with

deliberate indifference to [the passenger’s] interest in

personal security under the [F]ourteenth [A]mendment.” Id.

at 588.

Plaintiffs’ state-created danger theory fits the mold of

Bracken and Wood. Plaintiffs argue that they have satisfied

both of the doctrine’s requirements by plausibly alleging that

Defendants affirmatively created danger by initiating a car

chase that led to a crash and then acting with deliberate

indifference to Plaintiffs’ worsening medical condition by

failing to summon help. Accepting Plaintiffs’ allegations as

22 ESTATE OF SOAKAI V. ABDELAZIZ

true and drawing all reasonable inferences in Plaintiffs’

favor, we agree.

a. Affirmative Conduct

To satisfy the state-created danger exception’s first

prong, Plaintiffs must plausibly allege that Defendants’

affirmative actions (1) placed Plaintiffs in a worse position

than they would have occupied had Defendants not acted at

all; (2) created or exposed Plaintiffs to an actual and

particularized danger; and (3) resulted in foreseeable harm

to Plaintiffs. Polanco v. Diaz, 76 F.4th 918, 926 (9th Cir.

2023), cert. denied, No. 23-842, 144 S. Ct. 2519 (2024).

The first of those elements requires little discussion.

Plaintiffs allege that Defendants “sped after the suspect”

without alerting the suspect to pull over by turning on their

lights and sirens. We can plausibly infer from those

allegations that, in the absence of Defendants’ affirmative

actions, the suspect would not have raced through the city

and lost control of his vehicle and, therefore, that Plaintiffs

would not have required urgent medical attention to keep

their conditions from deteriorating further. So, even if

Defendants initiated the chase for a legitimate purpose,

Defendants undoubtedly “increased the level of danger”

faced by Plaintiffs “above the counterfactual baseline level

of danger that would have existed without [Defendants’]

intervention.” Sinclair, 61 F.4th at 682. 6

6

Not all car crashes that follow a pursuit will satisfy this element. For

example, if a fleeing suspect was already driving erratically and if the

officers’ conduct did not increase the risk of a crash, then this element

likely would not be met. No liability would attach if Defendants’ actions

“did not place [Plaintiffs] in any worse position than they would have

been in had [Defendants] not [done anything] whatsoever.” Johnson v.

City of Seattle, 474 F.3d 634, 641 (9th Cir. 2007).

ESTATE OF SOAKAI V. ABDELAZIZ 23

Foreseeability of harm is also easily addressed. It is

entirely predictable that allowing seriously wounded

individuals to go without aid for longer than necessary

would increase the risk of further injury or death. Cf.

Maxwell v. County of San Diego, 708 F.3d 1075, 1083 (9th

Cir. 2013) (“It was obvious that delaying a bleeding gun shot

victim’s ambulance increased the risk of death.”).

Regarding the last remaining element, Defendants argue

that they did not create a “particularized” danger because the

high-speed chase “threatened the safety of the public at

large.” Were we focused on the danger wrought by the car

chase alone, Defendants would have a valid point. See

Polanco, 76 F.4th at 927 (“Affirmative state action that

exposes a broad swath of the public to ‘generalized dangers’

cannot support a state-created-danger claim.”). As we have

explained, however, Plaintiffs’ state-created danger claim

targets not the injuries caused by the crash itself but the

additional risk faced by Plaintiffs after the crash due to

delayed medical treatment. Only a small and distinct

group—those few people injured by the collision—had to

contend with that danger. Plaintiffs therefore rely on a

sufficiently particularized danger. See id. (explaining that a

danger can be particularized if experienced by “a ‘discrete

and identifiable group’” (quoting Sinclair, 61 F.4th at 683)).

b. Deliberate Indifference

Next, we ask whether Defendants showed deliberate

indifference in the presence of the known danger that they

created. Bracken, 869 F.3d at 779. In this context, we

employ a subjective “deliberate indifference” standard.

Polanco, 76 F.4th at 928. To satisfy that standard, Plaintiffs

must show that Defendants knew that their intentional

actions would expose Plaintiffs to an unreasonable risk.

24 ESTATE OF SOAKAI V. ABDELAZIZ

Murguia, 61 F.4th at 1117 n.16. Put differently, Plaintiffs

must allege facts from which we can plausibly infer that

Defendants “kn[ew] that something was going to happen,

but ‘ignored the risk and exposed [Plaintiffs] to it anyway.’”

City of Clovis, 943 F.3d at 1274 (quoting Hernandez v. City

of San Jose, 897 F.3d 1125, 1135 (9th Cir. 2018)).

Plaintiffs have carried their burden. Defendants

allegedly saw the “carnage, injuries[,] and death” caused by

the collision but did not render aid or call for help, even

though the police department had a policy—and had trained

Defendants to follow the policy—that officers “provide and

summon emergency medical services for injured persons.”

Instead, Defendants allegedly kept driving, without turning

on their sirens or lights, before doubling back and pretending

to arrive at the scene for the first time after hearing other first

responders arrive. From those allegations, we can

reasonably infer that Defendants saw that Plaintiffs needed

immediate medical attention, knew from their training—and

common sense—that the danger to Plaintiffs would increase

the longer they went without help, and—like the officer in

Bracken—still “chose to do nothing about it.” Bracken, 869

F.3d at 780.

Defendants characterize Plaintiffs’ reliance on the state-

created danger doctrine as an attempt to circumvent the rule

that only a purpose to harm, and not deliberate indifference,

can support a substantive due process violation in cases

involving high-speed chases. Some of the broad phrasing in

our prior decisions appears to support that assertion. See,

e.g., Bingue, 512 F.3d at 1170–71 (holding that “police

officers involved in all high-speed chases are entitled to

qualified immunity . . . unless the plaintiff can prove that the

officer acted with a deliberate intent to harm”). But those

cases focused on injuries that resulted from an officer’s

ESTATE OF SOAKAI V. ABDELAZIZ 25

“decision to join the chase in the first place or the serial

decisions about how best to pursue the suspect.” Id. at 1176.

Requiring a more demanding showing of fault before

penalizing such choices makes sense because all of those

decisions must be made without “the luxury of delay.” Id.

The same logic does not apply, however, to Defendants’

decision to leave the scene of the crash, a choice Defendants

made only after the chase was over and the suspect was no

longer mobile. On the contrary, we can readily infer from

Plaintiffs’ allegations that Defendants had time to deliberate

before driving away.

Relatedly, the unique aspects of this case ensure that our

decision will not undermine the holdings of Onossian and

Bingue. Deliberate indifference remains a “stringent

standard of fault,” Murguia, 61 F.4th at 1111 (quoting Patel,

648 F.3d at 974), requiring a “culpable mental state,” id. Not

even gross negligence will do. Id. Failing to aid victims of

a car crash will thus rarely constitute deliberate indifference;

if, for instance, an officer did not summon emergency

services because the officer was distracted by the need to

locate the suspect, did not see the victims, or was injured, the

officer almost certainly would lack the “culpable mental

state” required. Id. In the universe of high-speed chase

cases, this one, with its particularly unusual allegations, is an

outlier.

We therefore hold that Plaintiffs have stated a claim

under the state-created danger exception.

2. Clearly Established Law

We also hold that, if Plaintiffs’ allegations are true,

Defendants violated clearly established law by acting with

deliberate indifference to the injuries that resulted from the

collision that Defendants affirmatively helped to cause.

26 ESTATE OF SOAKAI V. ABDELAZIZ

As Defendants point out, Plaintiffs do not identify—nor

are we aware of—a controlling case applying the state-

created danger theory to injuries suffered by bystanders after

a high-speed police chase. But “[t]here need not be a case

directly on point for a right to be clearly established.” City

of Clovis, 943 F.3d at 1275; see also Hope v. Pelzer, 536

U.S. 730, 741 (2002) (“[O]fficials can still be on notice that

their conduct violates established law even in novel factual

circumstances.”). We ask only whether existing precedent

has placed the constitutional question “beyond debate.” City

of Clovis, 943 F.3d at 1275 (quoting Shafer v. County of

Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017)). Here,

two lines of cases settle the debate.

First, in cases like Wood and Bracken, we established

that officers violate substantive due process when they

affirmatively place an individual in danger and then, with

deliberate indifference, do nothing to address that danger.

See Wood, 879 F.2d at 588 (allowing the state-created

danger claim to proceed when the officer deprived the

passenger of her ride and then “left [her] by the side of the

road at night in a high-crime area”); Bracken, 869 F.3d at

778–79 (“When an officer’s affirmative conduct creates a

foreseeable risk of harm to the plaintiff, the officer will be

liable for failing to intercede if the officer demonstrates

‘deliberate indifference’ to the plaintiff’s plight.”).

Also relevant are cases like Maxwell, in which we held

that “[i]mpeding access to medical care” both (1) “amounts

to leaving a victim in a more dangerous situation” and

(2) constitutes deliberately indifferent conduct when it is

“obvious” that delaying a seriously wounded individual’s

access to treatment will “increase[] the risk of death.”

Maxwell, 708 F.3d at 1082–83; cf. Penilla v. City of

Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997) (per

ESTATE OF SOAKAI V. ABDELAZIZ 27

curiam) (affirming denial of qualified immunity when

officers allegedly took affirmative actions that “made it

impossible for anyone to provide emergency medical care to

[the decedent]”).

Considered together, the foregoing authorities show that

Defendants’ alleged conduct violated a clearly established

right. See Polanco, 76 F.4th at 930 n.8 (“We routinely rely

on the intersection of multiple cases when holding that a

constitutional right has been clearly established.”). True,

Maxwell and Penilla involved affirmative steps taken to

delay aid that was already underway. In Maxwell, for

example, the officers “prevent[ed] [the injured individual’s]

ambulance from leaving.” Maxwell, 708 F.3d at 1082. But

those cases nevertheless put officers on notice that

hampering an individual’s access to emergency treatment

can constitute a substantive due process violation when the

“affirmative conduct” prong of the state-created danger

exception is also satisfied. And Bracken and Wood make

clear that an officer’s inaction—such as failing to provide

aid—can violate the Due Process Clause if the officer

previously put another in danger, even if the officer’s earlier

danger-creating conduct served legitimate law enforcement

objectives. See Bracken, 869 F.3d at 775 (reasoning that an

officer affirmatively placed the plaintiff in danger when the

officer acted with a legitimate law enforcement purpose);

Wood, 879 F.2d at 588 (holding that the officer was not

entitled to summary judgment when he may have

endangered the plaintiff after carrying out legitimate law

enforcement purposes).

RESPONSE TO THE DISSENTING OPINION

The dissenting opinion’s heated rhetoric ignores what

this opinion says and what our precedents provide. We

28 ESTATE OF SOAKAI V. ABDELAZIZ

answer briefly the dissenting opinion’s two central

unsupported claims.

First, the dissenting opinion reads our precedent to

require that the intent to harm must be the intent to harm the

injured bystander specifically. Dissent at 34–40. Not so. In

Moreland, we affirmed the summary judgment entered in the

officers’ favor “because the officers were responding to the

extreme emergency of public gunfire and did not intend to

commit any harm unrelated to the legitimate use of force

necessary to protect the public and themselves.” 159 F.3d at

373 (emphasis added). In other words, the Moreland

plaintiffs lost because there was no evidence that the officers

acted with an impermissible purpose to harm, as to either the

suspect (whom the officers intended to shoot) or the

bystander (whom the officers shot accidentally). And in

Onossian, a car-chase case in which we applied Moreland’s

interpretation of Lewis, we asked simply whether the

deputies “intended to cause harm to anyone.” Onossian, 175

F.3d at 1172 (emphasis added). Those cases, on their own,

clearly establish the law regarding bystanders. But we also

note that in Porter, 546 F.3d at 1140, we quoted with

approval Judge McKee’s concurring opinion in Davis v.

Township of Hillside, 190 F.3d 167 (3rd Cir. 1999)—a case

brought by a bystander who was injured as a result of a high-

speed police car chase—to explain that “[i]t 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 § 1983.” In that opinion, Judge

McKee explained that “if the record supported a finding that

police gratuitously rammed [the fleeing suspect’s] car, and

if [the] plaintiff[-bystander] properly alleged that they did so

to injure or terrorize [the suspect], liability could still attach

ESTATE OF SOAKAI V. ABDELAZIZ 29

under Lewis.” Id. at 172–73 (McKee, J., concurring)

(emphasis added).

Second, the dissenting opinion alleges that we have ruled

that officers are required to render or summon medical aid

for civilians who are harmed by private actors. Dissent at

43–45. Again, not so. Setting aside the dissenting opinion’s

more general disagreement with our precedents concerning

the state-created danger doctrine, we have faithfully

followed those precedents. Here, according to the

complaint, after intentionally causing the crash, the officers

saw the resulting “carnage, injuries[,] and death” but decided

to drive away and to return later, pretending to arrive at the

scene for the first time. That sequence of events is no

ordinary failure to render aid. Instead, the complaint alleges

that Defendants deliberately abandoned Plaintiffs in a

dangerous situation which, because of the affirmative

actions taken by the Defendants in the lead-up to the crash,

was of Defendants’ own making. See Bracken, 869 F.3d at

779–80 (rejecting the assertion of qualified immunity when

a jury could find that (1) the defendant “engaged in

affirmative conduct that exposed [the plaintiff] to

foreseeable harm”; and (2) the defendant knew that plaintiff

was being harmed “and deliberately chose to do nothing

about it”).

CONCLUSION

We hold that Defendants are not entitled to qualified

immunity with respect to either of Plaintiffs’ theories of

substantive due process liability. Given the unique facts of

this case, we also emphasize that “our decision at the

motion-to-dismiss stage sheds little light on whether the

government actors might ultimately be entitled to qualified

immunity” at later stages of the proceeding. Keates v. Koile,

30 ESTATE OF SOAKAI V. ABDELAZIZ

883 F.3d 1228, 1235 (9th Cir. 2018). We thus express no

opinion on what the district court might conclude at

summary judgment or, should the case proceed to trial, what

a jury might find.

AFFIRMED.

BUMATAY, Circuit Judge, dissenting:

No doubt this case presents jarring facts. According to

the complaint, two Oakland Police Department officers,

Walid Abdelaziz and Jimmy Marin-Coronel, began chasing

a suspect from an illegal car rally. The officers followed the

suspect’s car through the highly populated streets of

Oakland—at speeds up to 100 mph. Even more, the officers

engaged in a “ghost chase”—they pursued the suspect

without their lights and sirens, and they didn’t radio in the

chase to police dispatch. They did this because the Oakland

Police Department prohibits police chases with rare

exception. Sadly, the suspect lost control of his vehicle and

crashed into cars and motorcycles parked by a late-night taco

truck. Several bystanders waiting for food at the taco truck

were struck; Lolomania Soakai died from his injuries. The

officers witnessed the crash but did not stop or summon

medical aid. The officers came on scene—acting as if they

had only just arrived—after they heard other officers had

already responded. The officers were overheard

commenting that they hoped the suspect had died in the

crash. The family of Soakai and other injured bystanders

sued (“Plaintiffs”).

As shocking as these allegations appear, we must always

adhere to our constitutional role. That means following

ESTATE OF SOAKAI V. ABDELAZIZ 31

established law and not grasping at rulings to reach certain

outcomes. As I’ve said previously, “[f]aced with tragic

facts, . . . we may be tempted to expand the scope of

constitutional rights . . . . But our job is to look to the text

and history of the Constitution for the scope of constitutional

remedies—not simply to make good the wrong done.”

Murguia v. Langdon, 73 F.4th 1103, 1103 (9th Cir. 2023)

(Bumatay, J., dissenting from denial of rehearing en banc)

(simplified).

Indeed, qualified immunity’s “clearly established”

standard “protects the balance between vindication of

constitutional rights and government officials’ effective

performance of their duties” by making sure that government

officials can “reasonably anticipate when their conduct may

give rise to liability for damages.” Reichle v. Howards, 566

U.S. 658, 664 (2012) (simplified). “A clearly established

right is one that is sufficiently clear that every reasonable

official would have understood that what he is doing violates

that right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per

curiam) (simplified). “This exacting standard gives

government officials breathing room to make reasonable but

mistaken judgments by protecting all but the plainly

incompetent or those who knowingly violate the law.” City

& Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 611

(2015) (simplified). Thus, qualified immunity weeds out

claims premised on novel or opaque theories of

constitutional violation. Yet the majority greenlights exactly

that sort of claim—offering a string of unprecedented rulings

untethered from the Constitution.

First, the majority adopts a brand-new theory of

substantive due process—contrary to precedent and to the

Supreme Court’s admonition against such judicial

overreach. See Dobbs v. Jackson Women’s Health Org., 597

32 ESTATE OF SOAKAI V. ABDELAZIZ

U.S. 215, 239–40 (2022). For the first time, the majority

rules that a bystander may assert a substantive due process

claim against an officer if the bystander can show that the

officer intended to harm someone else. In other words, the

majority contends that the bystander Plaintiffs here showed

a clearly established due process violation even though the

allegations establish that the police officers intended to harm

only the suspect—not the bystanders. But neither the

Supreme Court nor the Ninth Circuit has ever endorsed this

theory. So it’s no wonder that the majority can’t point to a

single Supreme Court or Ninth Circuit opinion stating that

intent to harm someone else violates the Due Process Clause.

In fact, the Ninth Circuit precedent goes completely the other

way. More than 25 years ago, we concluded that similar

bystander plaintiffs “failed to state a viable substantive due

process claim because” they failed to satisfy “the controlling

question of whether [the officer] acted with a purpose to

harm Douglas [the bystander] that was unrelated to his

attempt to stop the [suspect in the case] from endangering

others.” Moreland v. Las Vegas Metro. Police Dept., 159

F.3d 365, 373 (9th Cir. 1998) (simplified). So we

definitively held that bystanders must establish intent to

harm the bystanders to sustain a due process claim. To get

around this, the majority completely misreads Moreland and

elevates opaque legalese, convoluted innuendo, a single-

judge concurrence, and snippets from different cases to

“clearly established” law. Simply unprecedented.

Second, the majority expands the state-created-danger

doctrine to create a new constitutional duty requiring law

enforcement officers to render or summon medical aid for

civilians harmed by private actors under certain

circumstances. Under this judicially created doctrine,

government officials violate substantive due process if they

ESTATE OF SOAKAI V. ABDELAZIZ 33

affirmatively place plaintiffs in danger. The Supreme Court

has never recognized the state-created-danger doctrine, and

its roots are both ahistorical and atextual. So we shouldn’t

casually expand the doctrine. That means following our

precedent closely. And at a minimum, what’s needed to

make a claim under the doctrine is “affirmative conduct” by

a state actor that exposed plaintiffs to “actual, particularized

danger.” Polanco v. Diaz, 76 F.4th 918, 926 (9th Cir. 2023)

(simplified). But under the majority’s novel theory of state-

created danger, no state action with a particularized danger

is necessary. All that’s needed now is state action without

particularized danger coupled with state inaction with

apparent particularized danger. So the majority creates a

state duty to render aid whenever a private actor harms

civilians if police officers acted in any way in the causal

chain of harm. This is a confusing expansion of a dubious

doctrine.

Only by reaching novel holding after novel holding can

the high standard of “clearly established law” be overcome.

This was not our role. Rather than hack together

unprecedented rulings to create not one—but two—new due

process rights, we should have simply followed the law and

precedent and granted qualified immunity.

I respectfully dissent.

I.

Due Process Claim From the Police Chase

To begin, the Supreme Court has endorsed only a narrow

substantive due process claim for suspects injured during a

police chase. In County of Sacramento v. Lewis, 523 U.S.

833 (1998), the Court held that a police officer with “a

purpose to cause harm unrelated to the legitimate object of

34 ESTATE OF SOAKAI V. ABDELAZIZ

arrest” violates due process by causing injuries to a suspect

during a high-speed chase. Id. at 836. Thus, it is clearly

established that “a police officer who acted with the purpose

to harm a civilian, unrelated to the legitimate law

enforcement objectives of arrest, self-defense, or the defense

of others, violated the Fourteenth Amendment due process

clause.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 454

(9th Cir. 2013).

The majority denies qualified immunity to the Officers

on Plaintiffs’ due process claim based on the injuries they

sustained after the Officers pursued the suspect during the

“ghost chase.” In other words, the majority holds that a

bystander may assert a due process violation if a police

officer intends to harm someone else as long as the bystander

is injured somewhere in the causal chain. But that’s wrong

for two reasons. First, even assuming that Plaintiffs

adequately alleged an intent to harm the suspect unrelated to

a legitimate objective, there’s no basis under the

Constitution to find liability for injuries to bystanders from

the officers’ conduct. Second, it wasn’t clearly established

law at the time of the accident that intent to harm a suspect

is enough to press a due process claim for injuries to

bystanders.

First, the Constitution doesn’t support expanding due

process protections to a bystander harmed by an officer who

intends to harm someone else. The majority reasons that

high-speed car chases endanger “the fleeing driver and . . .

the officers,” and “passengers and bystanders.” Maj. Op. 12.

It then claims it is “illogical” to distinguish between the two

“dangers” in deciding the scope of the Due Process Clause.

Id. That’s because, to the majority, harm to bystanders is a

“clear, known risk and is entirely foreseeable.” Id. at 16.

ESTATE OF SOAKAI V. ABDELAZIZ 35

The majority ignores that this is constitutional law—not

tort law. The language of “risks” and “foreseeability” is the

language of negligence—not the Due Process Clause. Of

course, a police chase causing injuries to a bystander may

give rise to a tort action against the city. See, e.g., City of

Sacramento v. Superior Ct., 131 Cal. App. 3d 395 (Ct. App.

1982); Est. of Aten v. City of Tucson, 817 P.2d 951 (Ariz. Ct.

App. 1991). But the question here is whether the

Constitution protects against such unintended injuries. And

that answer is clearly no. As Lewis itself recognized, we

can’t “demote[]” the Constitution to a “font of tort law.” 523

U.S. at 847 n.8. Lewis understood that we “need to preserve

the constitutional proportions of constitutional claims[.]” Id.

Lewis thus stressed that the Due Process Clause can’t be used

“to supplant traditional tort law” and it may not “lay[] down

[the] rules of conduct to regulate liability for injuries that

attend living together in society.” Id. at 848 (simplified).

Thus, “the Constitution does not guarantee due care on the

part of state officials” and “liability for negligently inflicted

harm is categorically beneath the threshold of constitutional

due process.” Id. It is only “deliberate decisions of

government officials to deprive a person of life, liberty, or

property” that offends the Due Process Clause. Id.

(simplified).

Because an officer doesn’t deliberately intend for any

harm to the “life, liberty, or property” of bystanders if the

officer’s intent is trained on a suspect, at most, the officer

shows a reckless disregard for bystanders’ lives by engaging

in a police chase. And Lewis expressly rejected the “reckless

disregard for life” standard when it comes to due process

claims from a high-speed chase. Id. at 854. Lewis then

confirmed that, for a due process violation to occur, an

officer must have an intent to “terrorize, cause harm, or kill”

36 ESTATE OF SOAKAI V. ABDELAZIZ

the person. Id. at 855. That doesn’t happen when an

officer’s actions inadvertently injure a bystander. So the

majority was wrong to endorse this newfound facet of

substantive due process. Indeed, the Ninth Circuit has

already answered this question and concluded that, to state a

due process claim, the “controlling question” is whether the

officer “acted with a purpose to harm” the bystander “that

was unrelated to” a legitimate law enforcement purpose. See

Moreland, 159 F.3d at 373.

Second, given how this novel theory of due process

conflicts with Supreme Court and Ninth Circuit precedent,

there’s no way it is “clearly established law.” Recall the

“clearly established law” standard “protect[s] all but the

plainly incompetent or those who knowingly violate the

law.” Sheehan, 575 U.S. at 611 (simplified). But under the

majority’s reading of the standard, it protects no one except

those with four law clerks and a Westlaw subscription. It

requires police officers to ignore directly controlling

authority, to squint at our caselaw, and to string together

creative interpretations across multiple cases. Indeed, look

at the majority’s tortured path to get to clearly established

law:

To recap, Lewis established that conducting

a high-speed chase “with [the] intent to harm

suspects physically or to worsen their legal

plight” violates substantive due process.

Lewis, 523 U.S. at 854. Moreland held that

Lewis’s standard applies when “an officer

inadvertently harm[s] a bystander” in other

high-pressure situations. Moreland, 159 F.3d

at 372 (emphasis added). And Onossian made

clear that Moreland’s interpretation of Lewis

ESTATE OF SOAKAI V. ABDELAZIZ 37

governs car-chase cases involving injured

bystanders. Onossian, 175 F.3d at 1172.

Maj. Op. 17. That’s about as clear as a cloudy day. One

would expect that, for something to meet the high standard

of clearly established law, the majority could point to a

single Supreme Court or Ninth Circuit statement that makes

“every reasonable official” understand “that what he is doing

violates” the law. Mullenix, 577 U.S. at 11. We have

nothing of the sort here. Instead, we have a string cite of

opaque legalese.

And even then, the majority’s reading of these cases is

dubious. As the majority admits, Lewis did not directly

approve of a bystander’s due process claim based on an

officer’s intent to harm someone else. See Maj. Op. 13

(“[T]he Supreme Court did not comment on whether the

officer might have intended to harm the passenger

specifically.”). That’s because the issue of bystander

liability never came up in that case. Indeed, it’s even a

stretch to say that a bystander was part of Lewis. In that case,

the police officers were pursuing two teenage boys on a

motorcycle—with the passenger being killed, 523 U.S. at

836–37—so it’s not a case involving a completely innocent

bystander inadvertently injured by a high-speed chase. See

also Onossian v. Block, 175 F.3d 1169, 1171 (9th Cir. 1999)

(observing that Lewis itself referred to the two teens as

“suspects”).

And, as stated earlier, Moreland adopts the opposite

conclusion—it endorses that a plaintiff bystander must show

intent to harm the bystander before due process liability can

attach. Thus, the majority completely misreads the decision

to claim it as clearly established law going the other way.

Moreland involved a midnight gunfight in a parking lot

38 ESTATE OF SOAKAI V. ABDELAZIZ

where officers fired on an armed suspect but shot a

bystander, Damon Douglas. 159 F.3d at 367. We first

decided what due process standard to apply:

The question we face today is whether

[Lewis’s] 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.

Id. at 372. From this question, which mostly just describes

the facts of the case, the majority sees “bystander liability.”

But all this statement does is adopt the legal framework for

analyzing the bystander’s due process claim. It says nothing

about whether the intent to harm someone else is sufficient

for a bystander to bring a due process claim against officers.

In answering that question, however, Moreland goes the

other way. When applying the legal standard to the facts of

the case, Moreland dismissed the case because “Appellants

do not contend Burns [the officer] intended to harm Douglas

[the bystander], physically or otherwise.” Id. at 373. If there

was any doubt, Moreland made it crystal clear: “Appellants

have failed to state a viable substantive due process claim

because these matters are not material to the controlling

question of whether Burns acted with a purpose to harm

Douglas that was unrelated to his attempt to stop the male in

the parking lot from endangering others.” Id. So the

“controlling question” in Moreland was whether the

bystander showed that the officer “acted with a purpose to

harm” the bystander. Id. That settles it clearly. The majority

ESTATE OF SOAKAI V. ABDELAZIZ 39

thus overturns Moreland in reaching its decision, which it

can’t properly do.

Next, the majority relies on Onossian. In that case, a

family sued sheriff’s deputies after a suspect being chased

by deputies crashed into their vehicle. 175 F.3d at 1170–71.

Onossian expressly limited itself to two questions—neither

of which is our question today. Id. at 1171 (“We must decide

two questions in this case.”). The first question was: “[D]oes

the Lewis test apply not only to harm caused to those pursued

in a high speed chase, but also to harm caused to other

drivers?” Id. We answered that question affirmatively—

yes, Lewis governs police chases leading to injury of

bystanders. And in examining that question, we observed

that “the duty of the pursuing police officer is defined

generally [in Lewis], without specific reference to the

suspect being pursued.” Id. We then read Lewis to provide

the following rule: “[I]f 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.” Id. This doesn’t

resolve whether bystanders must show intent to harm the

bystanders to assert a due process claim.

The second question Onossian confronted was: “[D]oes

the conduct in this case ‘shock the conscience’ within the

meaning of Lewis?” Id. at 1172. We answered no. We held

that “no reasonable trier of fact could find that defendants’

actions shock the conscience” because there “is no evidence

that deputies . . . intended to cause harm to anyone.” Id. at

1172. The majority latches onto these three words from

Onossian—“harm to anyone”—to assert that the Ninth

Circuit has definitively ruled for bystander liability. Those

words do no such thing. However those three words can be

interpreted, they neither serve as a holding or even binding

40 ESTATE OF SOAKAI V. ABDELAZIZ

well-reasoned dicta on the issue. Nor are they unambiguous

enough to provide clearly established law. Whether intent

to harm the suspect satisfies bystander liability was not

squarely raised in Onossian. At most, the language meant to

convey that the plaintiffs’ allegations didn’t come close to

asserting a due process foul because the deputies had no

intent to harm anyone, which “insulates the officer[s] from

constitutional attack.” Id. at 1171.

Finally, the majority belatedly tries to justify its holding

based on Porter’s citation to a concurrence by a single out-

of-circuit judge. Maj. Op. 28–29. But Porter cited Judge

McKee’s concurrence for a simple proposition—that “the

intent to inflict force beyond that which is required by a

legitimate law enforcement objective . . . ‘shocks the

conscience.’” See Porter, 546 F.3d at 1140 (quoting Davis

v. Twp. of Hillside, 190 F.3d 167, 172 (3d Cir. 1999)

(McKee, J., concurring)). Nowhere did Porter adopt the

other parts of Judge McKee’s concurrence on which the

majority now relies. While creative, this doesn’t prove

clearly established law.

We should have granted qualified immunity to the

Officers on this new substantive due process claim. Even

though the prospect of bystander liability for intent to harm

a suspect is unprecedented in its own right, what makes this

more extraordinary is the assertion that this novel doctrine is

clearly established law—apparently hiding in plain sight

among our caselaw. That’s not how we determine clearly

established law.

ESTATE OF SOAKAI V. ABDELAZIZ 41

II.

Due Process Claim From Failure to Render Aid

Plaintiffs also bring another substantive due process

claim revolving around the allegations that the Officers

failed to render or summon medical help after they witnessed

the suspect crash his car into the vehicles next to the taco

truck. Under this theory of due process, the Officers aren’t

liable for causing the crash but are for the injuries Plaintiffs

suffered from their failure to immediately provide medical

attention after the crash. This species of judge-made law is

often called the “state-created danger” doctrine—but

Plaintiffs argue for its expansion beyond anything courts

have recognized. The majority thus wrongly endorses this

newfangled claim.

The Due Process Clause imposes no “affirmative

obligation on the State” to protect a person’s life, liberty, or

property, and it serves only as a “limitation on the State’s

power to act” rather than a “guarantee of certain minimal

levels of safety and security.” DeShaney v. Winnebago Cnty.

Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). So ordinarily

Plaintiffs’ claim would fail from the start because they seek

to charge government actors with injuries caused by the

unnamed suspect. But the state-created-danger doctrine

creates “an exception to the rule that the Due Process Clause

does not obligate the State to protect its citizens from harm

caused by private actors.” Murguia, 73 F.4th at 1103

(Bumatay, J., dissenting from denial of rehearing en banc).

Instead, under the doctrine, government actors “may be

liable for their roles in creating or exposing individuals to

danger they otherwise would not have faced.” Polanco, 76

F.4th at 926 (simplified). If this sounds untethered from the

Due Process Clause, it is. The “state-created danger

42 ESTATE OF SOAKAI V. ABDELAZIZ

exception finds no support in the text of the Constitution, the

historical understanding of the ‘due process of law,’ or even

Supreme Court precedent.” Murguia, 73 F.4th at 1104

(Bumatay, J., dissenting from denial of rehearing en banc).

It was manufactured out of whole cloth by courts and

aggressively expanded by the Ninth Circuit. Given its

dubious pedigree, we should reject the doctrine’s “undue

expansion” and “align it with the text of the Due Process

Clause and Supreme Court precedent to the extent possible.”

Id.

Rather than rein in the doctrine, the majority continues

its ever-expansion—this time creating a new state duty to

provide immediate medical aid. To assert a due process

claim under the state-created-danger doctrine, plaintiffs

must first “allege affirmative conduct on the part of the state”

that “exposed” them to “an actual, particularized danger”

that they “would not otherwise have faced,” and, second, that

the state official “acted with deliberate indifference to that

known or obvious danger.” Polanco, 76 F.4th at 926.

So the first hurdle for plaintiffs is alleging “affirmative

conduct” that exposed them to a “particularized danger.” Id.

That’s a tough one for Plaintiffs given that their allegations

stem from a car crash—the dangers of which are of the most

general kind. Car accidents are an unfortunate but

ubiquitous risk on our roadways. They can strike almost

anyone at almost any time. It would be nearly impossible to

predict where a suspect in flight will crash or who might be

injured. And an “[a]ffirmative state action that exposes a

broad swath of the public to ‘generalized dangers’ cannot

support a state-created-danger claim.” Id. at 927; see also

Sinclair v. City of Seattle, 61 F.4th 674, 682 (9th Cir. 2023)

(observing that “[a] particularized danger, naturally,

contrasts with a general one” and must be “directed at a

ESTATE OF SOAKAI V. ABDELAZIZ 43

specific victim”) (simplified). So even if the Officers played

a role in causing the crash, Plaintiffs can’t plausibly allege

that the danger was “particularized” to them. Indeed, under

the allegations of the complaints, Plaintiffs can’t show that

Officers knew of the particular danger to them because the

Officers didn’t even know of their existence until after the

crash. Even the majority admits that Plaintiffs can’t assert a

state-created-danger claim based on the car crash. See Maj.

Op. 23 (“Were we focused on the danger wrought by the car

chase alone, Defendants would have a valid point.”).

But the majority waves away the flaws in Plaintiffs’

claim by instituting a novel state affirmative duty to render

or summon medical aid. Id. (“Plaintiffs’ state-created

danger claim targets not the injuries caused by the crash

itself but the additional risk faced by Plaintiffs after the crash

due to delayed medical treatment.”). In the majority’s view,

then, the Officers are liable under the state-created-danger

doctrine because they engaged in “affirmative conduct” after

the crash—by doing nothing. But inaction is not affirmative

conduct by definition. See Merriam-Webster’s Dictionary

of Law 17 (1996) (defining “affirmative” as “resulting from

an intentional act” or “involving or requiring application of

effort”). Merely failing to help or summon help—however

heartless—doesn’t amount to affirmative governmental

conduct sufficient to sustain a due process claim.

And the majority’s new reading of due process flatly

contradicts our precedent. Under our precedent, we ask

whether state actors “placed the plaintiff in a worse position

than he would have been in had the state not acted at all.”

Polanco, 76 F.4th at 926 (simplified). But when officers fail

to render medical assistance, they are, by definition, “not

act[ing] at all.” So the majority rewrites the inquiry. Now,

we must ask—could officers have helped plaintiffs if they

44 ESTATE OF SOAKAI V. ABDELAZIZ

had acted? The majority thus transforms the Due Process

Clause into a mandate of government assistance against

harm from private actors.

The majority’s conception of the Due Process Clause

defies both its text and historical understanding as well as

Supreme Court precedent. As a matter of text and history,

the focus of the Due Process Clause was a protection against

the arbitrary use of the “exclusive sovereign prerogative to

coerce or restrain action.” See Matthew Pritchard, Reviving

DeShaney: State-Created Dangers and Due Process First

Principles, 74 Rutgers U. L. Rev. 161, 192 (2021). The

notion of an affirmative duty to help comes nowhere from

our history or the meaning of the text. And under Court

precedent, the Clause is “not . . . a guarantee of certain

minimal levels of safety and security.” DeShaney, 489 U.S.

at 195. The Clause was meant “to protect the people from

the State, not to ensure that the State protected them from

each other.” Id. at 196. And so “a State’s failure to protect

an individual against private violence simply does not

constitute a violation of the Due Process Clause.” Id. at 197.

Under the proper understanding of the Due Process Clause,

outside the custodial context, the government bears no duty

to act to protect or help others—even faced with devastating

and tragic actions by private actors. And combining non-

particularized affirmative acts with non-affirmative acts

doesn’t save the majority’s novel construction of the

Fourteenth Amendment.

The implications of this ruling are again far-reaching.

Under the majority’s reasoning, under some circumstances,

state officials now bear an affirmative constitutional

obligation to ensure the safety and security of any civilian

who encounters a violent or dangerous private actor. It’s

hard to see how this isn’t a transformative reading of the Due

ESTATE OF SOAKAI V. ABDELAZIZ 45

Process Clause. Now, instead of government action being

the basis for a constitutional claim, inaction may violate due

process. The majority tries to downplay the significance of

its ruling by claiming that it doesn’t apply to “ordinary

failure to render aid.” Maj. Op. 29. But that is no solace—

and it only adds confusion to a confusing doctrine.

And, unsurprisingly, as a product of the majority’s

judicial innovation, this new interpretation of the state-

created-danger doctrine was not clearly established law. The

majority all but concedes this. See Maj. Op. 26 (“[N]or are

we aware of . . . a controlling case applying the state-created

danger theory to injuries suffered by bystanders after a high-

speed police chase.”). Indeed, the majority doesn’t even try

to suggest that its creative approach to manufacturing

“affirmative conduct” through a combination of non-

particularized affirmative conduct and inaction is clearly

established law. But the majority presses ahead based on the

broadest of generalities. It proclaims it “established that

officers violate substantive due process when they

affirmatively place an individual in danger and then . . . do

nothing to address that danger.” Id. at 26. Once again, we

ignore the Supreme Court’s “repeated[]” admonition to “the

Ninth Circuit in particular” “not to define clearly established

law at a high level of generality.” Ashcroft v. al-Kidd, 563

U.S. 731, 742 (2011).

The majority seeks to satisfy the clearly established law

prong by invoking four cases: Wood v. Ostrander, 879 F.2d

583 (9th Cir. 1989), Bracken v. Okura, 869 F.3d 771 (9th

Cir. 2017), Maxwell v. Cnty. of San Diego, 708 F.3d 1075

(9th Cir. 2013), and Penilla v. City of Huntington Park, 115

F.3d 707 (9th Cir. 1997). None of these decisions place the

Officers’ duty to summon or render medical assistance

46 ESTATE OF SOAKAI V. ABDELAZIZ

“beyond debate.” See Kisela v. Hughes, 584 U.S. 100, 104

(2018).

First, Wood only ruled that an officer who affirmatively

“abandon[ed]” a woman on the side of the road in a high-

crime area in the middle of the night violated the state-

created-danger doctrine. 879 F.2d at 592. There, the

officer’s actions were affirmative conduct—the plaintiff

asked the officer how she would get home after the officer

arrested the driver of her car for a DUI. Id. at 586. In

response, the officer simply told her she needed to get out of

the car and then left her on the side of the road. Id. She was

later raped that night. Id. According to our court, the Due

Process Clause was implicated because of the “police

officer’s roadside abandonment of non-arrested third

parties.” Id. at 592. We then held that an officer “stranding

a lone woman in a high-crime area at 2:30 a.m.” was a

constitutional violation. Id. So Wood is about a police

officer’s actions—and it was a due process violation for an

officer to “abandon[] passengers of arrested drivers under

circumstances which expose[d] them to unreasonable

danger.” Id. at 593 (emphasis added). Thus, Wood doesn’t

put the Officers on notice that they must affirmatively call

for or render medical assistance. Wood only says that

officers can’t affirmatively abandon civilians in dangerous

situations.

Second, Bracken embraced a state-created-danger claim

when an off-duty police officer moonlighting as a hotel

security guard affirmatively participated in the beating of a

man at a hotel party by other security guards. 869 F.3d at

775. During the incident, the off-duty officer warned the

man that he was trespassing and asked for his identification.

Id. at 779. After being “jostl[ed]” and “yell[ed]” at, the man

repeatedly asked if he could leave, but the officer “asserted

ESTATE OF SOAKAI V. ABDELAZIZ 47

his authority over” the man, continued to ask for his

identification, and blocked his exit. Id. Soon after, other

hotel security guards arrived and beat the man unconscious.

Id. at 775. We held that the officer was not entitled to

qualified immunity because the officer “affirmatively

prevented [the man] from leaving the party and ensured that

[the man] remained under the control of the hotel’s security

guards.” Id. at 779. In other words, even though he didn’t

throw any punches, the officer “was still an active participant

in the incident.” Id. If the officer “let him leave,” the man

would have left uninjured. Id. Again, this case provides no

notice to the Officers here. By failing to summon assistance,

they didn’t block or otherwise interfere with medical

services. Nor did they affirmatively exacerbate their injuries

by doing nothing.

Third, Maxwell allowed a state-created-danger claim

after police officers affirmatively “refused to let [an]

ambulance leave immediately” with a gunshot victim

because the officers thought the victim needed to be

interviewed first. The victim died en route even though her

injuries were survivable. 708 F.3d at 1081. We concluded

that “[i]mpeding access to medical care” was sufficient

government affirmative action to sustain a due process

claim. Id. at 1082. Indeed, the evidence showed that officers

“affirmatively increased that danger [to the gunshot victim]

by preventing her ambulance from leaving.” Id. Thus, the

Maxwell affirmative conduct was obvious—impeding an

ambulance from leaving. Here, we have nothing of the sort.

At most, the Officers failed to call an ambulance—that’s

very different than stopping one.

And finally, Penilla affirmed the denial of qualified

immunity after police officers affirmatively “made it

impossible for anyone to provide emergency medical care

48 ESTATE OF SOAKAI V. ABDELAZIZ

to” a victim in medical distress. 115 F.3d at 710. In that

case, police officers responded to a 911 call by neighbors

and a passerby about a man in “grave need” of medical care.

Id. at 708. Rather than permitting medical help, the officers

affirmatively cancelled the request for paramedics. Id. at

710. They then dragged the man from his porch in public

view and left him in an empty house alone and locked the

door behind them. Id. The man was found dead the next

day. Id. Again, the officers engaged in several affirmative

steps that left the man in a place where he could receive no

medical attention. If they simply did nothing, the man would

have received the help he needed. The Officers’ conduct

here bears no resemblance to these many affirmative steps.

The Officers neither interfered with Plaintiffs receiving

medical attention nor placed them in a position rendering

medical attention impossible.

So in these cases, the state actors affirmatively

abandoned a plaintiff in a dangerous situation, affirmatively

prevented a plaintiff from leaving a dangerous situation,

affirmatively impeded medical assistance from helping the

plaintiff, or affirmatively made it impossible to assist the

plaintiff. None of those situations would put Officers on

notice of the alleged constitutional violation here—that they

did nothing after a tragic accident. There’s simply no clearly

established law here.

III.

For the reasons discussed above, the Officers were

entitled to qualified immunity, and we should have reversed

the district court’s order.

I respectfully dissent.