Joshua Otero v. Christian Kane

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 24-2907

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JOSHUA OTERO, as Administrator of the Estate of

Virgen Martinez, Deceased

v.

POLICE OFFICER CHRISTIAN KANE; POLICE OFFICER

ALEXANDER HERNANDEZ; CITY OF PHILADELPHIA;

TAHIR ELLISON

Police Officer Alexander Hernandez; Police Officer

Christian Kane,

Appellants

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:22-cv-04141)

Magistrate Judge: Honorable Scott W. Reid

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Argued: September 16, 2025

Before: BIBAS, MONTGOMERY-REEVES, and AMBRO,

Circuit Judges

(Filed: December 5, 2025)

Adam R. Zurbriggen [Argued]

CITY OF PHILADELPHIA

LAW DEPARTMENT

17th Floor

1515 Arch Street

Philadelphia, PA 19102

Counsel for Appellants

Charles L. Becker

Kimberly M. Collins

Ruxandra M. Laidacker [Argued]

Helen A. Lawless

KLINE & SPECTER

1525 Locust Street

19th Floor

Philadelphia, PA 19102

Counsel for Appellee

Kelly J. Fox

GEROLAMO MCNULTY DIVIS & LEWBART

121 S Broad Street

Suite 1400

Philadelphia, PA 19107

Counsel for Appellee

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OPINION OF THE COURT

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BIBAS, Circuit Judge.

Every day, police officers make snap judgments to chase

dangerously fleeing suspects. During the chase, regrettably,

bystanders sometimes get hurt. Yet officers are not constitu-

tionally liable for those injuries unless their judgments are not

just mistaken but egregious, shocking the conscience.

Here, Philadelphia police officers witnessed drug deals.

The dealer took off, running a red light and driving fast and

dangerously; the officers made a split-second decision to chase

him. That chase stopped when the dealer crashed into another

car, killing an innocent bystander. The bystander’s son is suing

the officers for recklessly endangering others and so violating

the Fourteenth Amendment by giving chase. But because the

officers did not intend to harm anyone, we will reverse and

instruct the District Court to enter partial summary judgment

for the officers.

I. POLICE CHASED A DRUG DEALER, WHO CRASHED

INTO AND KILLED A BYSTANDER

One morning, Officers Christian Kane and Alexander

Hernandez were dispatched to Philadelphia’s Kensington

neighborhood to investigate drug dealing. Arriving in a marked

police car, they saw a large crowd gathered around an SUV and

someone handing out small items to the crowd. Officer Her-

nandez got out of the car, walked toward the crowd, and made

eye contact with the SUV’s driver, Tahir Ellison. Ellison then

drove off.

Hernandez got back in the police car, and the officers fol-

lowed Ellison at a normal speed. They turned on the police

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lights, sounded the siren several times, and followed for seven

blocks, but he did not pull over. Then he blew through a red

light, and so did the officers. Ellison turned the wrong way

down a one-way street, and the officers followed. Next, he

turned onto a major avenue and sped up, going roughly twice

the 30-mile-per-hour speed limit. The officers followed almost

as fast, reaching 55 miles per hour. When Ellison ran another

red light, he crashed into Virgen Martinez’s car, killing her.

Ellison later pleaded guilty to third-degree murder, aggravated

assault, and driving under the influence of marijuana.

The officers’ chase, especially the dangerous part of it, was

brief. From the time Ellison turned the wrong way down the

one-way street to the crash, only 39 seconds passed. From run-

ning the first red light to the crash, they covered eight blocks—

less than half a mile. However brief, the chase violated Phila-

delphia Police Department policy, which authorizes car chases

only when needed to “prevent … death or serious bodily injury,”

“stop a suspect who attempted a forcible felony,” or “stop a

suspect who [has] a deadly weapon.” JA 11.

Joshua Otero, Martinez’s son and the representative of her

estate, sued the officers and others under 42 U.S.C. § 1983 as

well as state law. He alleged that by chasing Ellison at high

speed in a densely populated neighborhood during the morning

rush hour, the officers had “consciously disregarded a great

risk of serious harm” to Martinez, causing her death. Supp.

App. 16 ¶ 63. This, Otero asserted, violated Martinez’s Four-

teenth Amendment right to substantive due process. The par-

ties consented to proceed before a magistrate judge.

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The officers moved for partial summary judgment, insisting

that they never intended to harm anyone and that they deserved

qualified immunity. Though the magistrate agreed that there

was no evidence of intent to harm, he denied summary judg-

ment both on the merits and on qualified immunity. But he cer-

tified an interlocutory appeal of these issues to us under 28

U.S.C. § 1292(b). We review de novo. Bayer v. Monroe Cnty.

Child. & Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009).

II. BECAUSE THE OFFICERS DID NOT INTEND TO HARM,

THEY CANNOT BE LIABLE

A. The culpability standard depends on how much

time police have to decide

When a private person (like Ellison) harms another private

person (like Martinez), police are seldom liable under the Four-

teenth Amendment. To be liable for creating a danger that vio-

lated someone’s constitutional rights, police must act so culpa-

bly that their behavior “shocks the conscience.” Sauers v.

Borough of Nesquehoning, 905 F.3d 711, 717 (3d Cir. 2018).

This culpability standard turns on timing—the less time an

officer has to act, the less blameworthy a flawed decision is.

We have recognized three categories of culpability:

1) If the situation was “hyperpressurized,” requiring

“split-second decisions,” the officer is not liable unless

he intended to harm.

2) If the situation gave the officer hours or minutes to

engage in “hurried deliberation,” the officer is not lia-

ble unless he “consciously disregarded … a great

risk of serious harm.”

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3) If the situation was “unhurried” and left time for

“careful deliberation,” the officer can be liable if he

was “deliberately indifferent” to the risk of harm.

Id. at 717–18 (cleaned up); Haberle v. Troxell, 885 F.3d 170,

177 (3d Cir. 2018) (cleaned up).

Most police chases fall into Category 1, triggering the intent-

to-harm standard. In the leading case on point, a motorcyclist

sped away from police at up to 100 miles per hour through a

residential neighborhood. Police chased the motorcycle for 75

seconds over 1.3 miles until it tipped over and the police car

hit the motorcycle passenger, killing him. Cnty. of Sacramento

v. Lewis, 523 U.S. 833, 837 (1998). The Supreme Court “h[e]ld

that,” when officers pursue suspects in “high-speed chases,”

their level of culpability does not shock the conscience unless

they “inten[d] to harm suspects physically or to worsen their

legal plight.” Id. at 854. Likewise, when a car took off through

a residential neighborhood at up to 70 miles per hour before

crashing into a bystander, police were not liable because they

had not intended to injure anyone. Davis v. Twp. of Hillside,

190 F.3d 167, 169, 170–71 (3d Cir. 1999). It did not matter

that, by chasing the car, the officers had violated police regu-

lations. Id. at 170. In both cases, the officers had mere moments

to decide whether to pursue, so both fit comfortably in Cate-

gory 1. Id. at 171 (officers’ decision was “instantaneous”);

Lewis, 523 U.S. at 855 (officer’s response was “practically

instantaneous”).

But when police have more time and freedom to choose,

the culpability standard is lower. In another case, an officer saw

a driver commit a summary traffic offense. The officer had

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time to deliberate. There was no sign that the driver was fleeing

the officer, posed a danger, or knew he was being chased. And

other police officers waited to intercept him down the highway.

Even so, the officer recklessly chased him at more than 100

miles per hour, lost control around a curve, and smashed into

another car, injuring its driver and killing its passenger. Sauers,

905 F.3d at 715. The officer “had at least some time to delib-

erate” about whether and how to give chase, “there was no

emergency,” and the suspect was not “actively fleeing” or “en-

dangering the public.” Id. at 718. Thus, we applied Category

2’s conscious-disregard standard, holding that the officer could

be liable for driving recklessly. Id.

B. We start the clock when officers must choose

whether to endanger the public

To figure out the relevant timeframe for culpability, we

need to know when to start the clock. The officers focus on the

little more than 39 seconds from when Ellison ran the first red

light to when he crashed into Martinez. The magistrate judge

refused to pick a starting time, concluding that a jury should

decide whether to count the first seven blocks. Otherwise, he

feared, every police chase would be hyperpressurized, requir-

ing intent to harm.

We disagree. Officers cannot be liable for following a sus-

pect lawfully and safely at an ordinary speed. Nothing about

following a suspect or turning on police lights and a siren is

inherently risky or dangerous to the public.

Rather, our precedent starts running the clock when, in the

totality of the circumstances, an event occurs that requires

officers to decide whether to pursue a suspect dangerously. In

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Davis, for example, we focused not on when police first pulled

alongside the suspect’s car, but on their “instantaneous” deci-

sion to speed up once the suspect did. 190 F.3d at 171; accord

Lewis, 523 U.S. at 855 (describing officer’s decision to chase

motorcycle once it sped off as “practically instantaneous,”

even though whole chase took 75 seconds and spanned 1.3

miles). By contrast, the officer in Sauers “had at least some

time to deliberate before deciding whether and how to pursue.”

905 F.3d at 718 (cleaned up; emphasis added). Because he had

time to “contemplat[e]” his choice, he could be liable for

choosing recklessly. Id.

C. The officers are not liable because they did not

intend to harm anyone

This case is far more like Lewis and Davis than Sauers. The

suspect was fleeing and ignoring signals to stop, so the officers

had no time to waste. When Ellison gunned it through the first

red light and began to “actively flee[ ],” his flight became dan-

gerous, and the officers had a split second to either follow suit

or let him get away. Id. So this case falls into the first Category.

Even if we look beyond that moment, the result is the same.

After Ellison ran the first red light, the chase covered less than

half a mile and ran less than a minute—shorter and quicker

than the chase in Lewis. Either way, Otero must show intent to

harm. But as the magistrate judge recognized, he cannot. And

here, as in Davis, it does not matter that the officers violated

police department rules. 190 F.3d at 170. The officers still

lacked the requisite intent, so they cannot be liable for violating

Martinez’s constitutional rights.

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III. IN ANY EVENT, QUALIFIED IMMUNITY

SHIELDS THE OFFICERS

Even if the officers had violated the Fourteenth Amend-

ment, qualified immunity would shield them from liability. To

apply qualified immunity, we must first define the right specif-

ically, based on the particular facts. Sauers, 905 F.3d at 716.

The magistrate judge never did so explicitly. He just noted that

the general shock-the-conscience standard was clearly estab-

lished. That is not enough.

Sauers modeled how to do this step. There, we defined the

right as “one not to be injured or killed as a result of a police

officer’s reckless pursuit of an individual suspected of a sum-

mary traffic offense when there is no pending emergency and

when the suspect is not actively fleeing the police.” Id. at 717

(emphases added). Following that example, we define the right

here as one not to be injured or killed as a result of an officer’s

recklessly pursuing an individual suspected of drug dealing or

a comparably serious crime who is driving dangerously and

actively fleeing the police.

Next, we must figure out if a reasonable officer would have

been on notice that his conduct would violate that right. A right

is not clearly established unless “Supreme Court precedent, our

own precedent, or a consensus of authority among the courts

of appeals placed that right beyond debate.” Id. at 719. Because

the magistrate judge did not define the right specifically

enough, he did not see that no case has clearly established the

relevant right. Sauers is distinguishable; it dealt with neither a

dangerously fleeing driver nor a criminal suspect (setting aside

the minor traffic infraction). 905 F.3d at 715–16. What is more,

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for police chases like the one here, Lewis requires intent to

harm. 523 U.S. at 837, 854. Sauers did not and could not over-

rule it. We cannot say that Sauers “placed the … constitutional

question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731,

741 (2011). So qualified immunity shields the officers.

*****

The events of that morning, and Martinez’s death, were

tragic. But Officers Kane and Hernandez are not liable for

Ellison’s reckless flight. They made a snap judgment to chase

a drug dealer fleeing dangerously through the streets of Phila-

delphia. We ask not whether in hindsight they chose rightly,

but whether they intended to cause harm. Because they did not,

the U.S. Constitution and § 1983 provide no remedy. We will

reverse and remand with instructions to enter partial summary

judgment for the officers on Count I.

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