The opinion
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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10954
____________________
DENISE HUGHES,
as Administrator of the Estate of Edwin Dewayne Moss,
Plaintiff-Appellee,
versus
DARIAN K. LOCURE,
an individual,
Defendant,
MONIQUE N. LOCURE,
Administratrix of the Estate of Darian K. Locure,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 3:22-cv-00312-RAH-JTA
____________________
Before WILLIAM PRYOR, Chief Judge, and JORDAN and BRASHER, Cir-
cuit Judges.
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2 Opinion of the Court 23-10954
BRASHER, Circuit Judge:
Darian Locure, a sheriff’s deputy, drove drunk, struck the
car in which Edwin Moss was riding, and fled the scene, leaving
Moss to die. We are constrained to assume that Locure was acting
under color of state law and in his official capacity when he com-
mitted these acts. The question before us is whether Locure is en-
titled to qualified immunity to a section 1983 claim. Because of our
circuit precedent, we cannot say that Locure’s conduct was clearly
unconstitutional at the time of the violation. So we must reverse
the denial of qualified immunity.
I.
The following facts come from the operative complaint, and
we must assume they are correct.
Darian Locure was a Macon County deputy sheriff in
Tuskegee, Alabama. One evening, while he was off duty, he came
to the sheriff’s office to care for his police dog. Sometime during
the evening—we don’t know when—he got drunk (or otherwise
intoxicated). Later that night, still blind drunk, he left the office in
his police truck to drive back home.
It was pitch black out. Locure’s police truck was pitch black,
too. And he had no lights on—neither his emergency lights nor his
headlights. Nearly invisible to the naked eye, he sped down a 25-
miles-per-hour zone at roughly 70 miles per hour.
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23-10954 Opinion of the Court 3
At the same time, in the opposing lane of traffic, Edwin Moss
was being driven home by Antonio Daniels. Neither Moss nor Dan-
iels could see that someone was barreling down the other lane, so
Daniels turned left across it, unknowingly putting his car in front
of Locure’s. Locure did not slow, stop, or turn away. Instead, he
collided into Daniels’s car, causing it to flip repeatedly before land-
ing in a ditch. Sometime later, first responders arrived and pro-
nounced Moss dead at the scene.
In the aftermath of the collision, Locure faced criminal and
civil liability. An Alabama grand jury indicted him for felony reck-
less manslaughter. And Denise Hughes, the administratrix of
Moss’s estate, sued Locure in state court. She brought three state
law claims for wrongful death, and one federal claim under section
1983. This appeal is about that last claim.
In her section 1983 claim, Hughes alleged that Locure vio-
lated Moss’s “substantive due process right to life” under the Four-
teenth Amendment by driving “with deliberate indifference to the
great risk of harm that would—and did—result to Mr. Moss.” Doc.
36 at 15. Because Hughes brought a federal claim, Locure removed
the case to the Middle District of Alabama and moved to dismiss
the federal claim. In Locure’s motion to dismiss, he argued that
Hughes failed to plausibly allege that Locure (1) violated Moss’s
clearly established constitutional rights and (2) acted under color of
law. So he argued that he was entitled to qualified immunity and
that the section 1983 claim must be dismissed. The district court
disagreed and denied Locure’s motion to dismiss, concluding that
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4 Opinion of the Court 23-10954
Locure was not entitled to qualified immunity and that Hughes
had plausibly alleged her section 1983 claim.
Locure appealed the district court’s qualified immunity de-
nial and its section 1983 color of law determination. Locure died
from unrelated causes. Monique Locure, Darian Locure’s widow
and administratrix of his estate, was substituted as the appellant.
II.
“We have a threshold obligation to ensure that we have ju-
risdiction to hear an appeal, for without jurisdiction we cannot pro-
ceed at all in any cause.” English v. City of Gainesville, 75 F.4th 1151,
1155 (11th Cir. 2023) (citation modified). Though we typically re-
view only final decisions, “the question of whether a complaint
states a violation of clearly established law sufficient to overcome
a qualified immunity defense does present an abstract issue of law
reviewable under 28 U.S.C. § 1291.” Jackson v. City of Atlanta, 97
F.4th 1343, 1351 (11th Cir. 2024). Thus, we have jurisdiction to de-
termine whether a district court was right to deny qualified im-
munity. See Spencer v. Benison, 5 F.4th 1222, 1230 (11th Cir. 2021).
As an element of a section 1983 claim, the plaintiff must es-
tablish that the tortfeasor was acting under color of law. Charles v.
Johnson, 18 F.4th 686, 694 (11th Cir. 2021) (explaining that “[t]he
requirement that the deprivation be made ‘under color of state
law’ . . . is an element of a § 1983 claim that the plaintiff must prove
in order to prevail”). We have not explicitly decided whether we
can review the district court’s determination on that question on
an interlocutory basis. But cf. Est. of Cummings v. Davenport, 906 F.3d
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23-10954 Opinion of the Court 5
934, 943–44 (11th Cir. 2018) (explaining that we lack interlocutory
jurisdiction to decide whether the “complaint states a claim” under
section 1983). But two of our sister circuits have concluded that,
when considering interlocutory appeals of denials of qualified im-
munity, the courts of appeals lack jurisdiction to determine
whether a government official was acting under color of law. See
Nelson v. Streeter, 16 F.3d 145, 149 (7th Cir. 1994); Sturdivant v. Fine,
22 F.4th 930, 935 (10th Cir. 2022).
We now join them, largely for reasons they persuasively laid
out. The Seventh Circuit reasoned that the color-of-law question
has no bearing on the question of immunity: “[i]t does not bear on
the defense of immunity. In fact it contradicts it. If the defendants
were not acting under color of state law, that is, as officials, they
are not entitled to official immunity. Official immunity is for offi-
cials.” Nelson, 16 F.3d at 149. The Tenth Circuit has likewise ex-
plained that, in interlocutory appeals like this one, a court of ap-
peals has “jurisdiction only to consider the district court’s denial of
qualified immunity.” Sturdivant, 22 F.4th at 935. But “[a]ction un-
der color of state law is an element of § 1983 . . . [a]nd a challenge
to the elements of § 1983 does not involve qualified immunity.” Id.
Both circuits persuade us that we lack jurisdiction to con-
sider whether Locure was acting under color of law. Whether the
defendant was acting under color of law is about the applicability
of section 1983, not about whether he is entitled to qualified im-
munity. Sturdivant, 22 F.4th at 935–36. The defense of qualified im-
munity is relevant only if the elements of a section 1983 claim exist.
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6 Opinion of the Court 23-10954
So, for the purpose of an interlocutory appeal, a defendant takes
the color of law issue off the table by asserting qualified immunity.
Nelson, 16 F.3d at 149.
To be sure, we can exercise pendent jurisdiction over non-
appealable decisions that are “inextricably intertwined with” ap-
pealable ones. Hudson v. Hall, 231 F.3d 1289, 1294 (11th Cir. 2000)
(citation modified). But “[i]ssues are not inextricably inter-
twined . . . when the appealable issue can be resolved without
reaching the merits of the nonappealable issues.” Hamrick v.
Partsfleet, LLC, 1 F.4th 1337, 1352 (11th Cir. 2021) (citation modi-
fied). Accordingly, because we can decide whether a government
official violated clearly established constitutional law without de-
ciding whether he was acting under the color of law under section
1983, we may not exercise pendent jurisdiction over the latter ques-
tion.
Although we can review the denial of qualified immunity,
we cannot review whether Locure acted under color of law. So we
must assume for the purposes of the appeal that Locure was acting
under color of state law when, apparently off duty, he drunkenly
drove his police car home from caring for his dog.
III.
When a district court denies qualified immunity on a motion
to dismiss, “[w]e review the district court’s judgment de novo to de-
termine whether the complaint alleges a violation of clearly estab-
lished law, accepting the facts alleged in the complaint as true and
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23-10954 Opinion of the Court 7
drawing all reasonable inferences in the plaintiff’s favor.” Jackson,
97 F.4th at 1350.
IV.
We turn now to the merits. To determine whether a gov-
ernment actor is entitled to qualified immunity from a section 1983
claim, “we engage in a burden-shifting analysis.” Brooks v. Miller, 78
F.4th 1267, 1280 (11th Cir. 2023). The burden first rests with the
government actor, who “must show that he was acting within the
scope of his discretionary authority when he committed the chal-
lenged acts.” Id. If the government actor establishes that he acted
within his discretionary authority, “the burden shifts” to the com-
plaining party, “who must show that qualified immunity is not ap-
propriate.” Id. To make that showing, the complainant must estab-
lish that: (1) the government actor violated his constitutional or
statutory right and (2) the unconstitutionality of that conduct was
clearly established at the time of the violation. Wilson v. Sec’y, Dep’t
of Corr., 54 F.4th 652, 660 (11th Cir. 2022).
We will walk through these two steps in turn. Accordingly,
after we discuss whether Locure was acting within the scope of his
discretionary authority, we will then determine whether Locure
violated a clearly established constitutional right.
A.
A government official is not entitled to qualified immunity
if he was not “acting within the scope of his discretionary authority
when he committed the challenged acts.” Brooks, 78 F.4th at 1280.
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8 Opinion of the Court 23-10954
As a result, we would usually begin our analysis by examining
whether Locure acted within that scope. But Hughes does not ar-
gue on appeal that the district court erred in concluding that Lo-
cure acted within his discretionary authority. Accordingly, she has
abandoned this argument. See United States v. Campbell, 26 F.4th
860, 865 (11th Cir. 2022) (en banc) (“Generally, issues that are not
raised in a party’s brief on appeal are considered abandoned.”).
The district court noted that, despite its assessment, there
may be good reason to think that Locure was not acting within his
discretionary authority. But we cannot say there are “extraordinary
circumstances” that warrant us addressing this issue sua sponte. Id.
at 873. So, for present purposes, we will accept the district court’s
conclusion that Locure acted within his discretionary authority.
B.
We now turn to whether Locure’s actions violated a clearly
established constitutional right. Here, Hughes argues that Locure
violated Moss’s substantive due process right to bodily integrity.
Whether conduct violates the right to bodily integrity depends on
whether that conduct “shocks the conscience.” See Davis v. Carter,
555 F.3d 979, 982 (11th Cir. 2009) (“Conduct by a government actor
will rise to the level of a substantive due process violation only if
the act can be characterized as arbitrary or conscience-shocking in
a constitutional sense.”); United States v. Salerno, 481 U.S. 739, 746
(1987) (“So-called ‘substantive due process’ prevents the govern-
ment from engaging in conduct that ‘shocks the conscience’ . . . .”).
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23-10954 Opinion of the Court 9
We will assume without deciding that Locure’s conduct
“shocks the conscience” and violated Moss’s right to bodily integ-
rity. See Pearson v. Callahan, 555 U.S. 223, 237 (2009). We cannot
say, however, that the right was clearly established.
Even if a plaintiff can point to a constitutional violation, the
existence of that violation is not enough to defeat qualified immun-
ity. The unconstitutionality of the defendant’s particular conduct
must have been clearly established at the time of the violation.
“[T]he salient question . . . is whether the state of the law” at the
time of the violation gave officials “fair warning” that their conduct
was unconstitutional. Hope v. Pelzer, 536 U.S. 730, 741 (2002). The
notice must be clear to “every reasonable official,” and it must
place the law “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011) (citation modified).
A plaintiff can show that a right is clearly established for
qualified immunity purposes in three ways:
(1) by pointing to a materially similar decision of the
Supreme Court, of this Court, or of the supreme
court of the state in which the case arose; (2) by es-
tablishing that a broader, clearly established principle
should control the novel facts of the case; or (3) by
convincing us that the case is one of those rare ones
that fits within the exception of conduct which so ob-
viously violates the constitution that prior case law is
unnecessary.
Powell v. Snook, 25 F.4th 912, 920 (11th Cir. 2022) (citation modi-
fied). Under methods (2) and (3), we look for “obvious clarity”—“a
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10 Opinion of the Court 23-10954
principle or provision so clear that, even without specific guidance
from a decision involving materially similar facts, the unlawfulness
of the officer’s conduct is apparent.” Id. “In light of the rarity of
obvious clarity cases, if a plaintiff cannot show that the law at issue
was clearly established under the first . . . method, that usually
means qualified immunity is appropriate.” King v. Pridmore, 961
F.3d 1135, 1146 (11th Cir. 2020).
Hughes does not argue that Moss’s right was clearly estab-
lished under methods (1) or (2). Instead, Hughes contends that
Moss’s right was clearly established under method (3)—obvious
clarity. The district court also applied the third method in ruling
that Moss’s rights were sufficiently clearly established to overcome
Locure’s qualified immunity defense.
The problem with Hughes’s reliance on the third method to
clearly establish Moss’s right is that our caselaw undermines her
conclusion. Our caselaw indicates that Locure’s conduct—as egre-
gious as it may be—may not violate a right in the constitutional
sense. For example, in Cannon v. Taylor, 782 F.2d 947, 950 (11th Cir.
1986), we held “that a person injured in an automobile accident
caused by the negligent, or even grossly negligent, operation of a
motor vehicle by a policeman acting in the line of duty has no sec-
tion 1983 cause of action for violation of a federal right.” Similarly,
in Rooney v. Watson, 101 F.3d 1378, 1381 (11th Cir. 1996), we deter-
mined that, even if an officer was grossly negligent in excessively
speeding in a non-emergency situation, it still did “not transform a
state tort claim into a constitutional deprivation.” Several of our
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23-10954 Opinion of the Court 11
unreported cases—which can be considered “to indicate that a par-
ticular constitutional right is not clearly established,” Corbitt v. Vick-
ers, 929 F.3d 1304, 1319 n.14 (11th Cir. 2019)—have also reached
the same conclusion. See, e.g., Wilcox v. Fenn, 380 F. App’x 837, 839
(11th Cir. 2010); Barnwell v. Douglas County, 390 F. App’x 862, 863–
64 (11th Cir. 2010).
Though these situations may be factually distinct, we cannot
cast them aside in our “obvious clarity” analysis. Where precedent
injects such uncertainty, it does not follow logically that the com-
plained of offense “so obviously violates th[e] [C]onstitution.” Mer-
cado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005). Indeed,
when caselaw indicates that a certain type of conduct does not rise
to the level of a constitutional violation, officials cannot possibly be
on notice that the conduct is a constitutional violation—and cer-
tainly not with obvious clarity. See Hope, 536 U.S. at 741; al-Kidd,
563 U.S. at 741. The existence of this caselaw casting doubt on the
“obvious clarity” of Moss’s claimed right—and, indeed, disclaiming
such a right altogether—necessarily means that the right was not
clearly established at the time of the violation.
To be sure, similar out-of-circuit cases have reached the op-
posite conclusion. For example, as the district court noted in its or-
der, in Browder v. City of Albuquerque, the Tenth Circuit concluded
that a police officer’s misuse of a squad car resulting in a fatal colli-
sion could give rise to a claim under the Fourteenth Amendment.
787 F.3d 1076, 1083 (10th Cir. 2015). But Browder, unlike this case,
was decided in light of earlier Tenth Circuit precedent, which held
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12 Opinion of the Court 23-10954
that “a police officer could be liable under the Fourteenth Amend-
ment for driving in a manner that exhibits a conscience-shocking
deliberate indifference to the lives of those around him.” Id. (cita-
tion modified); see also Williams v. City & County of Denver, 99 F.3d
1009 (10th Cir. 1996), vacated, 140 F.3d 855 (10th Cir. 1997); Green
v. Post, 574 F.3d 1294, 1306 (10th Cir. 2009). And in any event, alt-
hough we allow consideration of “persuasive decisions from other
circuits” to determine “whether a violation was one of obvious
clarity[,]” Gilmore v. Ga. Dep’t of Corr., 144 F.4th 1246, 1263 (11th
Cir. 2025) (en banc) (citation modified), we have never said that
“such a consensus . . . alone [can] constitute clearly established
law.” Id. at 1251 (emphasis added).
Finally, Hughes suggests that conduct that “shocks the con-
science” such that it violates substantive due process necessarily
equates to an “obviously clear” constitutional violation. We disa-
gree. “Shocks the conscience” is the standard for assessing the egre-
giousness of the state actor’s conduct on the spectrum of potential
tort liability. County of Sacramento v. Lewis, 523 U.S. 833, 848–49
(1998) (explaining that the “shocks the conscience” standard “du-
plicates no traditional category of common-law fault, but rather
points clearly away from liability, or clearly toward it, only at the
ends of the tort law’s spectrum of culpability.”). The “obviously
clear” inquiry, by contrast, is about the relationship of the state ac-
tor’s conduct to the state of constitutional law. United States v. La-
nier, 520 U.S. 259, 271 (1997) (“[A] general constitutional rule al-
ready identified in the decisional law may apply with obvious clar-
ity to the specific conduct in question, even though the very action
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23-10954 Opinion of the Court 13
in question has not previously been held unlawful.” (citation mod-
ified)). Blending the “shocks the conscience” standard with the “ob-
vious clarity” framework crosses the wires between two distinct
concepts. The former concerns tort liability; the latter considers
clearly established constitutional law. In other words, conduct may
be very bad (and, in fact, shock the conscience), but the state of the
law may leave it insufficiently clear that the conduct violates the
constitution. In such cases, as here, the defense of qualified immun-
ity applies.
Even though Locure is entitled to qualified immunity,
Hughes is not left without an available remedy. Daniels v. Williams,
474 U.S. 327, 333 (1986) (“That injuries inflicted by governmental
negligence are not addressed by the United States Constitution is
not to say that they may not raise significant legal concerns and
lead to the creation of protectible legal interests.”). Indeed, as she
has done, Hughes may pursue state law tort claims against Locure.
See Paul v. Davis, 424 U.S. 693, 701 (1976); Davis, 555 F.3d at 982;
Loftus v. Clark-Moore, 690 F.3d 1200, 1206 (11th Cir. 2012); Echols v.
Lawton, 913 F.3d 1313, 1326 (11th Cir. 2019). Regardless of the path
to obtaining relief, “[i]t is no reflection on either the breadth of the
United States Constitution or the importance of traditional tort law
to say that they do not address the same concerns.” Daniels, 474
U.S. at 333. The Constitution sets the boundaries for federal liabil-
ity, not the outer limits of accountability. Here, Hughes’s recourse
lies in state tort law, not constitutional doctrine.
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14 Opinion of the Court 23-10954
V.
Because any unconstitutionality of Locure’s conduct was
not clearly established at the time of the alleged violation, we must
REVERSE the district court’s denial of qualified immunity and
REMAND for further proceedings consistent with this opinion.
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23-10954 WILLIAM PRYOR, C.J., Concurring 1
WILLIAM PRYOR, Chief Judge, concurring:
I join the majority opinion in full, which means that I agree
that we lack interlocutory jurisdiction to decide whether Locure
acted under color of state law. See 42 U.S.C. § 1983. I write sepa-
rately to express skepticism that he did.
Section 1983 punishes constitutional violations only when
committed “under color of” state law. See id. An officer acts under
color of state law when he “exercise[s] power possessed by virtue
of state law and made possible only because [he] is clothed with the
authority of state law.” Myers v. Bowman, 713 F.3d 1319, 1329 (11th
Cir. 2013) (citation and internal quotation marks omitted). “[A]cts
of officers in the ambit of their personal pursuits are not done under
color of law.” Id. (citation and internal quotation marks omitted).
Although we lack jurisdiction to decide, I doubt that Locure
acted under color of law. The complaint against him alleged that
he “was not responding to an emergency, nor in pursuit of a sus-
pect, nor carrying out any tasks in the execution of [his law enforce-
ment] duties” when he struck Moss’s vehicle. Instead, he was off
duty and returning home from the police station. He drove his
truck “at or above 70 [miles per hour]” in a 25-miles-per-hour zone
“without the use of headlights.” And he was “under the influence
of alcohol and/or other impairing substance(s).” This conduct was
not “made possible only because [Locure] [was] clothed with the
authority of state law.” Id. (citation and internal quotation marks
omitted). Indeed, drunk driving at excessive speeds violates state
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2 PRYOR, C.J., Concurring 23-10954
law. Locure’s actions were precisely the kind of “personal pur-
suit[]” that section 1983 does not reach. Id. (citation and internal
quotation marks omitted).
Justice Scalia often lamented that too many Americans
“have come to believe that anything they care deeply about has to
be in the Constitution.” See, e.g., Antonin G. Scalia, 1994 William O.
Douglas Lecture Series Transcript, 51 GONZ. L. REV. 583, 584 (2016).
That is, they assume that “[i]f it’s really bad, it has to be unconsti-
tutional,” a violation of so-called “substantive due process.” Id.
Some lawyers, and perhaps judges, similarly believe that anything
unlawful done by a state official must be actionable under sec-
tion 1983. But neither assumption is correct.
“Our Constitution . . . does not purport to supplant tradi-
tional tort law in laying down rules of conduct to regulate liability
for injuries that attend living together in society.” Daniels v. Wil-
liams, 474 U.S. 327, 332 (1986). And section 1983 “does not federal-
ize all torts . . . committed by a person who is a law enforcement
officer.” Myers, 713 F.3d at 1329 (citation and internal quotation
marks omitted). Locure’s alleged conduct certainly “deserves con-
demnation, but his potential liability should be determined, if at all,
by state tort law.” Id.
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23-10954 JORDAN, J., Concurring in Part and Dissenting in Part 1
JORDAN, Circuit Judge, Concurring in Part and Dissenting in Part:
I agree that we cannot decide the “color of law” question in
this interlocutory appeal, and join Parts I-IV.A of the majority opin-
ion. But I would affirm the district court’s denial of qualified im-
munity to Officer Locure, and therefore respectfully dissent as to
Parts IV.B and V.
I
A substantive due process violation occurs when an officer’s
conduct “shocks the conscience.” Cnty. of Sacramento v. Lewis, 523
U.S. 833, 846–47 (1998). “[H]igh-speed chases with no intent to
harm suspects physically or to worsen their legal plight do not give
rise to liability under the Fourteenth Amendment, redressible by
an action under [42 U.S.C.] § 1983.” Id. at 854.
Although “conduct intended to injure in some way unjusti-
fiable by any government interest is the sort of official action most
likely to rise to the conscience-shocking level,” that which is delib-
erately indifferent to a great or near-certain risk of serious injury
can sometimes suffice. See id. at 849. See also Rosales-Mireles v.
United States, 585 U.S. 129, 138 (2018) (“This Court has said that the
‘shock the conscience’ standard is satisfied where the conduct was
‘intended to injure in some way unjustifiable by any government
interest,’ or in some circumstances if it resulted from deliberate in-
difference.”) (quoting Lewis, 523 U.S. at 849–50).
The majority assumes, without deciding, that Officer Lo-
cure violated Mr. Moss’ substantive due process rights. In my
view, the allegations in the complaint state a plausible substantive
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2 JORDAN, J., Concurring in Part and Dissenting in Part 23-10954
due process claim. See generally Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555-60 (2007) (setting out the plausibility pleading stand-
ard).
On the evening of January 19, 2021, Officer Locure drove his
dark-colored police vehicle through downtown Tuskegee at 70
miles per hour in a 25-mph zone. He did this while intoxicated, in
violation of Alabama criminal law, see Ala. Code § 32-5A-191(a), (e),
and without headlights, running lights, or any other lights. Tragi-
cally, he crashed into another car, killing Mr. Moss. An Alabama
grand jury later indicted him for felony reckless manslaughter.
According to the complaint, Officer Locure was not making
a split-second decision, pursuing a suspect, responding to a call,
dealing with an emergency, providing backup, or assisting a fellow
officer. There were, in other words, no work-related reasons for
his inebriated joyride—this was “the exercise of power without any
reasonable justification in the service of a legitimate governmental
objective.” Lewis, 523 U.S. at 846.
Given these allegations, “this case does not seem . . . to im-
plicate any serious borderline disputes.” Browder v. City of Albuquer-
que, 787 F.3d 1076, 1080 (10th Cir. 2015) (Gorsuch, J.). Like the
Tenth Circuit in Browder—a case which involved less egregious
facts—I would hold that Officer Locure’s conduct violated the sub-
stantive due process rights of Mr. Moss. See id. (“[The officer] used
his official squad car and activated its emergency lights and pro-
ceeded to speed through surface city streets at more than 60 miles
per hour over 8.8 miles through eleven city intersections and at
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23-10954 JORDAN, J., Concurring in Part and Dissenting in Part 3
least one red light—all for his personal pleasure, on no governmen-
tal business of any kind.”).
Simply stated, Officer Locure acted with a “conscious con-
tempt of the lives of others and thus a form of reckless indifference
to a fundamental right—precisely the sort of mens rea Lewis says
will normally suffice to establish liability.” Id. at 1081. His con-
duct, in other words, was conscience-shocking.
As the Tenth Circuit explained in Browder, it is not ap-
propriate to demand specific intent in these circum-
stances. Lewis held specific intent may be required to
suggest arbitrary or conscience-shocking behavior in
cases where the officer has been asked to respond to
emergencies of citizens in need. But the case never
suggested that such a demanding form of mens rea is
necessary or appropriate to suggest arbitrary or con-
science-shocking conduct in cases where the officer
isn't pursuing any emergency or any official business
at all. And for good reason. The officer in these cir-
cumstances faces no tug between duties owed to two
sets of innocents, there is no emergency, no one has
called for his aid, and he sits instead in the same place
as everyone else when it comes to respecting the
rights of others.
Id. This rationale has even more force here, as Officer Locure was
driving while intoxicated. 1
1 The conduct alleged here is no different, constitutionally, from that of an
officer who on New Year’s Eve fires his weapon into the night sky to celebrate
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4 JORDAN, J., Concurring in Part and Dissenting in Part 23-10954
II
I would also deny Officer Locure qualified immunity at this
stage of the litigation. For me, on the facts alleged, the substantive
due process violation was one of “obvious clarity,” i.e., the conduct
was “so egregious that a constitutional right was clearly violated,
even in the total absence of case law.” Gilmore v. Ga. Dep’t of Corr.,
144 F.4th 1246, 1258 (11th Cir. 2025) (en banc) (internal quotation
marks and citation omitted).
No reasonable officer in January of 2021 could have possibly
believed that it was appropriate or constitutional to behave as Of-
ficer Locure did. And no reasonable officer could have been con-
fused on the matter. By driving in the evening while intoxicated,
without any lights, and 45 miles per hour over the speed limit on a
local road, Officer Locure played Russian Roulette with the unwit-
ting residents of Tuskegee, turning his police vehicle into a deadly
weapon.
The majority believes otherwise, and points to a couple of
our prior cases to support its grant of qualified immunity to Officer
Locure. But those cases are so materially different that they could
not have caused any doubt in the mind of a reasonable officer.
In Cannon v. Taylor, 782 F.2d 947 (11th Cir. 1986), a police
officer crashed into and killed a motorist as he was responding to a
disturbance call. The officer was going 46 miles per hour in a 30-
the occasion, with a festive crowd nearby, only to have a bullet strike one of
the revelers on its way down to earth.
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23-10954 JORDAN, J., Concurring in Part and Dissenting in Part 5
mph zone, “[a]pparently concerned for the safety of the first officer
to reach the scene.” Id. at 948. We held that “a person injured in
an automobile accident caused by the negligent, or even grossly
negligent, operation of a motor vehicle by a policeman acting in
the line of duty has no [42 U.S.C. §] 1983 cause of action for viola-
tion of a federal right.” Id. at 950. Our holding in Cannon was later
vindicated by the Supreme Court in Lewis, 523 U.S. at 853 (“[W]hen
unforeseen circumstances demand an officer’s instant judgment,
even precipitate recklessness fails to inch close enough to harmful
purpose to spark the [requisite] shock[.]”).
Officer Locure, unlike the officer in Cannon, was not re-
sponding to anything “in the line of duty.” So Cannon, to my mind,
is not very instructive on the matter of qualified immunity.
The circumstances in Rooney v. Watson, 101 F.3d 1378 (11th
Cir. 1996), were also significantly different than those here. In
Rooney, the police officer was driving 73 miles per hour on a high-
way when he was involved in a crash. Although he was on duty,
the officer was not responding to an emergency call at the time of
the accident, and he did not have his lights or siren on. See id. at
1379. We concluded that even if “driving at a high rate of speed in
a non-emergency . . . situation reveal[ed] gross negligence rather
than negligence,” that fact alone did “not transform a state tort
claim into a constitutional deprivation[.]” Id. at 1381.
Had Officer Locure only been speeding without emergency
lights in a non-emergency situation, he likely would be entitled to
qualified immunity. On the facts alleged, however, speeding and
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6 JORDAN, J., Concurring in Part and Dissenting in Part 23-10954
driving without lights were not his only transgressions. He was
also intoxicated—and that is the critical aggravating factor.
“[S]ome things are so obviously unlawful that they don’t re-
quire detailed explanation,” Browder, 787 F.3d at 1082, and so it is
here. Every adult, and certainly every police officer, knows that
driving under the influence is both unlawful and extremely danger-
ous. “[I]t would be remarkable if the most obviously unconstitu-
tional conduct should be the most immune from liability only be-
cause it is so flagrantly unlawful that few dare its attempt.” Id. at
1082–83. See also Grendell v. Gillway, 974 F. Supp. 46, 52 (D. Me.
1997) (“Simply because there is no clearly defined case law con-
demning certain conduct does not mean police officers should be
free to engage in such conduct, no matter how offensive or destruc-
tive to a fair and just society that conduct may be, and then hide
behind the shield of qualified immunity.”).
III
Qualified immunity, the Supreme Court has told us, pro-
tects “all but the plainly incompetent or those who knowingly vio-
late the law.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (internal quo-
tation marks and citation omitted). A police officer who drives
while intoxicated, in the evening without any lights, and reaches
70 miles per hour in a 25-mph zone, is plainly incompetent in the
constitutional sense and does not deserve the “benefit of the
doubt” that qualified immunity provides. See Crosby v. Paulk, 187
F.3d 1339, 1344 (11th Cir. 1999) (internal quotation marks and cita-
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23-10954 JORDAN, J., Concurring in Part and Dissenting in Part 7
tion omitted). This is not, in other words, a scenario where an of-
ficer needs “breathing room to make reasonable but mis-
taken judgments about open legal questions.” Ashcroft v. al-Kidd,
563 U.S. 731, 743 (2011).
No court has granted qualified immunity on facts like those
alleged here. I do not think we should be the first. 2
2 I have elsewhere been critical of the Supreme Court’s current qualified im-
munity jurisprudence, but I won’t repeat those views here. See, e.g., Sosa v.
Martin Cnty., Fla., 57 F.4th 1297, 1304 (11th Cir. 2023) (en banc) (Jordan, J.,
concurring in the judgment); Stalley v. Cumbie, 124 F.4th 1273, 1322 n.7 (11th
Cir. 2024) (Jordan, J., dissenting). Even under the doctrine as it exists today, I
do not believe Officer Locure is entitled to qualified immunity.