Bingue v. Prunchak

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWIGE BINGUE, an individual; 

MARJORIE BINGUE, an individual;

No. 05-16388

and DONALD HOUSE, an individual,

Plaintiffs-Appellees,

 D.C. No.

CV-04-01085-JCM

v.

OPINION

ELI PRUNCHAK, individually,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted

June 14, 2007—San Francisco, California

Filed January 15, 2008

Before: Jay S. Bybee, Milan D. Smith, Jr., and

N. Randy Smith, Circuit Judges.

Opinion by Judge Bybee

475

478 BINGUE v. PRUNCHAK

COUNSEL

Thomas D. Dillard, Jr. & Felicia Galati, Rawlings, Olson,

Cannon, Gormley & Desruisseaux, Las Vegas, Nevada, for

the appellant.

Anthony P. Sgro, Steven K. Lewis & Maria Loventime

Estanislao, Patti & Srgo, Las Vegas, Nevada, for the appel-

lees.

OPINION

BYBEE, Circuit Judge:

In Onossian v. Block, we applied the Supreme Court’s deci-

sion in County of Sacramento v. Lewis, 523 U.S. 833 (1998),

and held that a police officer in a high-speed chase—whether

he injures the fleeing suspect or a bystander—is entitled to

qualified immunity unless his behavior “shocks the con-

science” because it demonstrates an intent “to cause harm

unrelated to the legitimate object of arrest.” 175 F.3d 1169,

1171 (9th Cir. 1999) (internal quotation marks omitted). We

were not called upon to consider whether the district court

must apply this “intent to harm” standard to all high-speed

chases, or only those chases that involve “emergencies” or

“split-second decisions.” Today we refine our Onossian anal-

ysis and hold, following the Eighth Circuit, that police offi-

BINGUE v. PRUNCHAK 479

cers involved in all high-speed chases are entitled to qualified

immunity under 42 U.S.C. § 1983 unless the plaintiff can

prove that the officer acted with a deliberate intent to harm.

See Helseth v. Burch, 258 F.3d 867 (8th Cir. 2001) (en banc).

The officer involved in the high-speed chase in this case is

entitled to summary judgment based on step one of the quali-

fied immunity analysis as set forth in Saucier v. Katz, 533

U.S. 194 (2001). We thus reverse the judgment of the district

court.

I. BACKGROUND

At approximately 3:41 p.m., on November 29, 2003, offi-

cers with the Las Vegas Metropolitan Police Department

(“LVMPD”) attempted to pull over a stolen Toyota Camry.

When the driver refused to stop, a police chase ensued. The

chase would last an hour, cover nearly 90 miles, and involve

at least a dozen units and a helicopter. Officer Eli Prunchak

was at a car dealership “ordering a new door panel for [his]

patrol vehicle” when he “heard radio traffic that units were in

pursuit of a stolen vehicle . . . heading southbound on Boulder

Highway.” Based on the radio traffic, Prunchak “thought that

[he] was close enough to the pursuit that [he] had a good

chance of catching up to it and assisting other officers in

apprehension of the suspects.” Ten minutes after LVMPD

first attempted to stop the Toyota, it entered the southbound

lanes of the U.S. 95, a major north-south freeway. At that

point, Prunchak “still thought that [he] was close enough to

help and did not know at the time how many other units were

in pursuit.” Calculating that he was “still approximately a half

mile to a mile behind the pursuit,” Prunchak, with emergency

lights active, entered the left lane of southbound U.S. 95.

At about the same time, Edwige Bingue, and her mother,

Marjorie Bingue (collectively “Bingue”), were traveling on

southbound U.S. 95 when they saw several police units in

pursuit of the Toyota.1 Bingue moved to the right to avoid

1

A third plaintiff, Donald House, is Edwige Bingue’s husband. He was

not involved in the accident.

480 BINGUE v. PRUNCHAK

those units, and the units safely passed. Minutes later,

Prunchak approached—traveling “somewhere around 100

miles per hour”—and while rounding “a long, wide, left curve

. . . felt [his] tires slip from underneath [him] and [his] patrol

vehicle . . . drift[ ] into the number-two lane.” Though there

were no cars in the number two lane when Prunchak

attempted to regain control of his car, he quickly drifted into

the number-three lane and “sideswiped” the driver’s side of

Bingue’s Mercedes. Both vehicles spun out of control and

came to rest on the divider between the north and southbound

lanes of the freeway. Realizing he was not seriously injured,

Prunchak immediately moved to assist Bingue, who was “ex-

tremely shaken up, but did not appear to have serious inju-

ries.” Shortly after, another unit arrived and relieved

Prunchak. Police ultimately stopped the Toyota with spike

strips2 just a few miles from the California border and arrested

its three occupants.

Bingue filed this suit in state court against Prunchak,

LVMPD, and others alleging state law negligence and, pursu-

ant to 42 U.S.C. § 1983, violations of the Fifth and Fourteenth

Amendments.3 The case was removed to federal court, where

Prunchak moved, on qualified immunity grounds, for partial

judgment on the pleadings on Bingue’s federal claims. The

district court denied the motion in a very short order finding

“that the issue of what standard to apply [to Bingue’s claims]

—(1) the ‘intent to harm’ standard or (2) the ‘deliberate

indifference’—to determine whether there is a substantive due

process violation is a fact-based inquiry that looks at whether

deliberation was practical” and that “[Bingue has] demon-

2

Spike strips, also known as tire spikes, are law enforcement devices

used to stop suspects fleeing by car. The “spikes” are hollow metal tubes

that pierce the tires and cause rapid deflation without explosion. See, e.g.,

United States v. Payan-Valenzuela, Civil No. 06CR2158 JM, 2007 U.S.

Dist. LEXIS 68360, at *6 (S.D. Cal. Sept. 14, 2007).

3

Bingue originally brought a claim under the Fourth Amendment, but

concedes that she “abandoned the Fourth Amendment claim by not

addressing it below.” We, therefore, decline to address this claim here.

BINGUE v. PRUNCHAK 481

strated substantial questions of material fact as to whether

[Prunchak] had opportunity to deliberate.” Prunchak timely

appealed.

II. JURISDICTION

Bingue argues that we lack jurisdiction to adjudicate the

issue of whether Prunchak is entitled to qualified immunity as

this is an interlocutory appeal, and our review of such appeals

is limited to legal issues. Relying on the district court’s char-

acterization of the issue as one of “fact,” Bingue argues that

our review is limited to the question of “whether the facts

alleged support . . . a claim of a violation of clearly estab-

lished law.” Perez v. Unified Gov’t of Wyandotte County, 432

F.3d 1163, 1166 (10th Cir. 2005), cert. denied, 126 S. Ct.

2971 (2006) (internal quotations and citations omitted, alter-

ation in original).4 We review challenges to our jurisdiction

over such interlocutory appeals de novo and reject Bingue’s

argument. See Wilkins v. City of Oakland, 350 F.3d 949, 954

(9th Cir. 2003) (“We review de novo . . . [an] appeal from a

denial of summary judgment based on qualified immunity.”);

Rosales-Rosales v. Ashcroft, 347 F.3d 714, 716 (9th Cir.

2003) (“We determine our own jurisdiction de novo.”).5

4

Prunchak’s motion for qualified immunity arises under Federal Rule of

Civil Procedure 12(c), which, as newly amended, provides that “[a]fter the

pleadings are closed—but early enough not to delay trial—a party may

move for judgment on the pleadings.” Since the parties have presented

“matters outside the pleadings,” Prunchak’s “motion [is] treated as one for

summary judgment under Rule 56.” FED. R. CIV. P. 12(d). (We quote from

the new amendment, effective December 1, 2007. The amendment is “part

of the general restyling of the Civil Rules to make them more easily

understood . . . . The[ ] changes are intended to be stylistic only.” FED. R.

CIV. P. 12, advisory committee note (2007 Amendment).)

5

As a preliminary matter, we have jurisdiction to determine our own

jurisdiction. See Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 992

(9th Cir. 2004). Any other rule would place the court and potential liti-

gants in an untenable “Catch-22” situation, stripping the courts of the abil-

ity to weigh and consider the merits of the jurisdictional argument, and

depriving citizens of a fair adjudication of their claims.

482 BINGUE v. PRUNCHAK

Bingue’s argument, presumably, arises from the general

principle that the denial of a motion for judgment on the

pleadings or “summary judgment is not ordinarily an appeal-

able order,” and that when such orders are appealable, as in

the qualified immunity context, our jurisdiction is “limited to

questions of law and does not extend to claims in which the

determination of qualified immunity depends on disputed

issues of material fact.” Jeffers v. Gomez, 267 F.3d 895, 903

(9th Cir. 2001) (per curiam).

[1] While this general principle stands, the “denial of sum-

mary judgment on qualified immunity grounds is not always

unappealable simply because the district court concludes that

the issues of fact in dispute are material.” Thomas v. Gomez,

143 F.3d 1246, 1248 (9th Cir. 1998). Indeed, “[w]here dis-

puted facts exist, . . . we can determine whether the denial of

qualified immunity was appropriate by assuming that the ver-

sion of the material facts asserted by the non-moving party is

correct.” Jeffers, 267 F.3d at 903; accord Knox v. Sw. Air-

lines, 124 F.3d 1103, 1107 (9th Cir. 1997). Alternatively, we

may also determine that the disputed facts simply are not

material. See Thomas, 143 F.3d at 1248 (“[A]n appellate court

has jurisdiction to hear an interlocutory appeal where defen-

dants assert that the district court erred in determining that the

disputed facts were material.”).

[2] Applying this rule, we have jurisdiction to determine,

based on the facts alleged by Bingue, whether Prunchak is

entitled to qualified immunity. Accepting the district court’s

implied holding—that a court should wait to determine quali-

fied immunity whenever there is a disputed factual issue—

would eviscerate the very purpose of qualified immunity,

which is “to protect defendants even from defending the

action.” Jeffers, 267 F.3d at 907; see also Scott v. Harris, 127

S. Ct. 1769, 1774 n.2 (2007) (“Qualified immunity is ‘an

immunity from suit rather than a mere defense to liability

. . . .’ Thus, . . . an order denying qualified immunity is imme-

diately appealable even though it is interlocutory . . . .” (quot-

BINGUE v. PRUNCHAK 483

ing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis

in original)); Saucier v. Katz, 533 U.S. 194, 202 (2001) (hold-

ing that “deny[ing] summary judgment any time a material

issue of fact remains on [a § 1983 claim] could undermine the

goal of qualified immunity to ‘avoid excessive disruption of

government and permit the resolution of many insubstantial

claims on summary judgment.’ ” (quoting Harlow v. Fitzger-

ald, 457 U.S. 800, 818 (1982))). We have jurisdiction to adju-

dicate the merits of this appeal.

III. DISCUSSION

We now turn to the merits of the appeal, whether Prunchak

is entitled to qualified immunity on Bingue’s federal claims.

In making this determination, we apply the Supreme Court’s

two-part sequential test. See Meyers v. Redwood City, 400

F.3d 765, 769-70 (9th Cir. 2005). First, as a “threshold ques-

tion,” we ask whether “[t]aken in the light most favorable to

the party asserting the injury, do the facts alleged show the

[official’s] conduct violated a constitutional right?” Saucier v.

Katz, 533 U.S. 194, 201 (2001). If the answer to the question

is “no,” then no further inquiry is necessary and the official

is entitled to a favorable judgment. Id. “On the other hand, if

a violation could be made out on a favorable view of the par-

ties’ submissions, the next, sequential step is to ask whether

the right was clearly established.” Id. This second step “must

be undertaken in light of the specific context of the case, and

not as a broad general proposition.” Id.

“As in any action under § 1983, the first step is to identify

the exact contours of the underlying right said to have been

violated.” County of Sacramento v. Lewis, 523 U.S. 833, 841

n.5 (1998). Bingue argues that her Fifth and Fourteenth

Amendment substantive due process rights were violated

through arbitrary government action. Specifically, she argues

that Prunchak’s decision to join the high-speed chase was so

callous and reckless as to amount to “an abuse of executive

power so clearly unjustified by any legitimate objective of

484 BINGUE v. PRUNCHAK

law enforcement as to be barred by the Fourteenth Amend-

ment.” Lewis, 523 U.S. at 840. Applying the two-part Saucier

test to each of Bingue’s claims, we conclude that Prunchak is

entitled to judgment and reverse the district court. We address

each of Bingue’s claims in turn.

A. Bingue’s Fifth Amendment Claim

[3] Bingue first argues that Prunchak’s actions run afoul of

the Fifth Amendment. This claim is plainly foreclosed by the

Constitution. Prunchak is a local law enforcement official,

and the Fifth Amendment’s due process clause only applies to

the federal government. See Betts v. Brady, 316 U.S. 455, 462

(1942) (“Due process of law is secured against invasion by

the federal Government by the Fifth Amendment and is safe-

guarded against state action in identical words by the Four-

teenth.”), overruled on other grounds by Gideon v.

Wainwright, 372 U.S. 335 (1963); Castillo v. McFadden, 399

F.3d 993, 1002 n.5 (9th Cir. 2005) (“The Fifth Amendment

prohibits the federal government from depriving persons of

due process, while the Fourteenth Amendment explicitly pro-

hibits deprivations without due process by the several States:

‘nor shall any State deprive any person of life, liberty, or

property, without due process of law.’ ” (quoting U.S. CONST.

amend. XIV) (emphasis in original)). Bingue has no cause of

action under the Fifth Amendment, and the district court erred

in failing to dismiss this claim.

B. Bingue’s Fourteenth Amendment Claim

[4] Bingue’s related Fourteenth Amendment claim is con-

trolled by Lewis, which concerned an alleged Fourteenth

Amendment violation arising out of the death of a motorcycle

passenger who was killed after he was hit by a police car dur-

ing the high-speed pursuit of that motorcycle. See Lewis, 523

U.S. at 836-37. The situation arose when two teenagers failed

to stop at a police officer’s command and, instead, tried to

outrun the officers. Id. The chase ended when the motorcycle

BINGUE v. PRUNCHAK 485

tipped over while attempting a sharp left turn; the motorcycle

driver was thrown clear of the police car, but the passenger

was hit as the police car attempted to brake and skidded into

him at about 40 miles an hour. Id. The Supreme Court framed

the issue as “whether a police officer violates the Fourteenth

Amendment’s guarantee of substantive due process by caus-

ing death through deliberate or reckless indifference to life in

a high-speed automobile chase aimed at apprehending a sus-

pected offender.” Id. It concluded that even reckless or delib-

erate indifference was insufficiently shocking to the

conscience to form the basis for a substantive due process

claim. Reversing our court, the Supreme Court emphasized

“that in such circumstances only a purpose to cause harm

unrelated to the legitimate object of arrest will satisfy the ele-

ment of arbitrary conduct shocking to the conscience, neces-

sary for a due process violation.” Id. The Court concluded that

although the officer may have acted irresponsibly, “there

[was] no reason to believe that” the officer’s reaction was

driven by anything other than his “instinct . . . to do his job

as a law enforcement officer.” Id. at 855. Consequently, the

Court adopted an “intent to harm” standard holding “that

high-speed police 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 § 1983.” Id. at 854.

[5] Bingue attempts to avoid this result and distinguish

Lewis on two separate grounds. First, she argues that the cases

are distinguishable because, unlike the plaintiff in Lewis, who

was fleeing on the motorcycle, Bingue was a mere innocent

bystander and, therefore, owed a greater duty of care. We

rejected this argument in Onossian v. Block, 175 F.3d 1169,

1171 (9th Cir. 1999), where we held that Lewis applies to

injuries resulting from a high-speed police chase regardless of

whether the injured victim was a fleeing suspect or an inno-

cent bystander. “As we read the Court’s opinion [in Lewis],

if a police officer is justified in giving chase, that justification

insulates the officer from constitutional attack, irrespective of

486 BINGUE v. PRUNCHAK

who might be harmed or killed as a consequence of the

chase.” Onossian, 175 F.3d at 1171. In order to prove a due

process violation, our case law requires 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

and] ‘shocks the conscience.’ ” Id. at 1172; see also Moreland

v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 372-73 (9th

Cir. 1998) (reasoning by analogy from Lewis that police offi-

cers “did not violate the plaintiffs’ substantive due process

rights to family association when [they] accidently shot and

killed [an alleged bystander], 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.”).

Second, Bingue argues that Lewis’ “intent to harm” stan-

dard only applies to cases involving “emergency and nearly

instantaneous pursuits,” and is not applicable to the situation

at hand where Prunchak allegedly had ample time to deliber-

ate. Drawing on language in Lewis, Bingue urges us to adopt

the less demanding “deliberate indifference” standard in her

case and reserve the “intent to harm” standard for situations

where the police “have obligations that tend to tug against

each other” and must make decisions “in haste, under pres-

sure, and frequently without the luxury of a second chance.”

Lewis, 523 U.S. at 853 (internal quotation marks omitted). At

first glance, Bingue appears to be correct that our prior deci-

sions and those of some of our sister circuits support her posi-

tion. See, e.g., Moreland, 159 F.3d at 372 (noting that the

critical question to determine whether the “intent to harm”

standard applies is “whether the circumstances are such that

‘actual deliberation is practical.’ ” (quoting Lewis, 523 U.S. at

851)); Onossian, 175 F.3d at 1171 (“Perhaps most telling is

[Lewis’] description of the dilemma of a police officer who

must make a ‘split-second’ decision whether to pursue a sus-

pect.”); Rivas v. City of Passaic, 365 F.3d 181, 195-96 (3d

Cir. 2004) (holding that under Lewis the “intent to harm”

standard applies to split-second decisions, but not “where an

BINGUE v. PRUNCHAK 487

official had to act with some urgency”); Ewolski v. City of

Brunswick, 287 F.3d 492, 510-13 (6th Cir. 2002) (“The time

for deliberation available to [police] in deciding how to

respond to [a two-day police standoff] distinguishes this case

from those in which actual malice and an intent to harm [is]

required[,]” such as Lewis); Radecki v. Barela, 146 F.3d 1227,

1231 (10th Cir. 1998) (holding that under Lewis, “in assessing

the constitutionality of law enforcement actions, we now dis-

tinguish between emergency action and actions taken after

opportunity for reflection”).

[6] It remains an open question in our circuit whether the

“intent to harm” standard applies categorically to Fourteenth

Amendment due process claims arising out of all high-speed

police chases, or whether there are some kinds of high-speed

chases in which a “deliberate indifference” standard applies.

See Onossian, 175 F.3d at 1172 (declining to adopt a categori-

cal rule for high-speed chases). The Eighth Circuit has

adopted a categorical rule that “the intent-to-harm standard,

rather than the deliberate indifference standard, applies to all

high-speed police pursuits aimed at apprehending suspected

offenders.” Helseth v. Burch, 258 F.3d 867, 871 (8th Cir.

2001) (en banc) (emphasis in original). Helseth, like the case

at hand, involved a § 1983 substantive due process claim

brought by an innocent bystander injured in a high-speed car

chase. Id. at 869-70. In granting qualified immunity on that

claim, the en banc court expressly overruled an earlier Eighth

Circuit opinion holding that a bystander killed during the

high-speed pursuit of a stolen car only needed to show delib-

erate indifference to prevail because the pursuing officer “had

ample time to deliberate and weigh” the dangers presented in

the six minute chase, Feist v. Simonson, 222 F.3d 455, 463-65

(8th Cir. 2000). See Helseth, 258 F.3d at 870-71.

The en banc court determined that the original panel had

read Lewis too narrowly and was focused “on a portion of the

Court’s justification for [its] holding” and “paid too little heed

to the Supreme Court’s holding.” Id. at 870 (emphasis in orig-

488 BINGUE v. PRUNCHAK

inal). The court further noted that the original panel’s decision

would effectively “eviscerate[ ] the holding of Lewis” because

under that reading courts would be free to reject the intent to

harm standard “whenever a judge or a jury could say, with the

wisdom of hindsight, that an officer engaged in a high-speed

pursuit had ample time to deliberate.” Id. at 871 (internal quo-

tation marks omitted).

[7] The court also noted that drawing such an arbitrary dis-

tinction between “emergency” and “non-emergency” situa-

tions discounts the split second decisions an officer must

make when deciding whether to engage in a high-speed chase.

In such circumstances, officers must operate under great pres-

sure and make repeated split-second decisions about how best

to apprehend the fleeing suspect in a manner that will mini-

mize risk to their own safety and the safety of the general

public. An officer attempting to apprehend a suspect fleeing

at high speed does not have the luxury of delay; there is no

time for reflection and precious little time for deliberation

concerning either the decision to join the chase in the first

place or the serial decisions about how best to pursue the sus-

pect. The sheer velocity of a high-speed chase necessarily

converts each situation into a genuine “emergency.” Trying to

sort high-speed chases into the neat categories of “emergen-

cy” and “non-emergency” situations is much like trying to

bake a cake and having to distinguish between salt and sugar

by sight alone: it is a nearly impossible task that has a high

likelihood of producing an unpleasant result. Our colleagues

on the Eighth Circuit recognized that such a distinction is

unsound under Lewis because:

it . . . gives too little recognition to the Court’s other

bases for [its] holding—its historical reluctance “to

expand the concept of substantive due process,” 523

U.S. at 842; its explicit reliance on Whitley v. Albers,

475 U.S. 312, 320 (1986), which adopted the intent-

to-harm standard for a two-hour prison riot, 523 U.S.

at 853-54; its doubt whether “it makes sense to speak

BINGUE v. PRUNCHAK 489

of indifference as deliberate in the case of sudden

pursuit,” 523 U.S. at 851; its recognition that police

officers confronting high-speed lawlessness are

“subject to countervailing [law] enforcement consid-

erations,” 523 U.S. at 855; its concern that any stan-

dard less than intent-to-harm “might cause suspects

to flee more often, increasing accidents of the kind

which occurred here,” 523 U.S. at 858 (Kennedy, J.,

concurring); and the belief of at least some Justices

that the question of police officer liability for reck-

less driving during high-speed pursuits should be

decided by the elected branches of government, 523

U.S. at 864-65 (Scalia, J., concurring).

Helseth, 258 F.3d at 871. We agree with the Eighth Circuit

and decline to try to draw a distinction between “emergency”

and “non-emergency” situations involving high-speed chases

aimed at apprehending a fleeing suspect.6 We, therefore, hold

6

Bingue argues that other circuits have either rejected Helseth or have

held that the Lewis “intent to harm” standard only applies where officers

lack the time necessary to deliberate. A closer examination of these cases

reveals that none of those cases involved high-speed car chases. Instead,

in applying Lewis, those courts merely reasoned from analogy and

extracted from Lewis the proposition that when deliberation is impossible,

the “intent to harm” standard is more likely to apply. See, e.g., Moreland,

159 F.3d at 372 (“While the Supreme Court limited its holding in Lewis

to the facts of that case (i.e., to high-speed police chases), there is no prin-

cipled way to distinguish such circumstances from this case.”). None of

the cases cited hold that some high-speed car chases involve a lower stan-

dard of proof than that established by the Lewis court. See, e.g., id.; com-

pare Elowski, 287 F.3d at 511 (holding that, under the Lewis framework,

a two-day police standoff “falls within the middle-range between custodial

settings and high-speed car chases, and likewise conclude that, on balance,

the more appropriate standard of review is deliberate indifference.” (inter-

nal quotation marks omitted)) with Meals v. City of Memphis, 493 F.3d

720, 729-32 (6th Cir. 2007) (holding, without any discussion of whether

a high-speed police car chase permitted time for deliberation or reflection,

that the defendant police officer was entitled to qualified immunity

because there was no showing that the police officer acted with intent to

harm).

490 BINGUE v. PRUNCHAK

that the Lewis standard of “intent to harm” applies to all high-

speed police chases. Cf. Scott, 127 S. Ct. at 1779 (“A police

officer’s attempt to terminate a dangerous high-speed car

chase that threatens the lives of innocent bystanders does not

violate the Fourth Amendment, . . .”).

[8] Applying the “intent to harm” standard to the case at

hand, we conclude that Prunchak did not act with the requisite

intent to harm. The police report filed immediately after the

accident reveals that Prunchak joined the high-speed chase in

an attempt to do his job and help apprehend the fleeing sus-

pect who posed a danger to the community. He stated that he

“heard radio traffic that units were in pursuit of a stolen vehi-

cle.” Shortly thereafter he heard additional traffic that the

vehicle was entering U.S. 95, near where Prunchak was

parked. He wrote that he “thought that [he] was close enough

to help and did not know at the time how many other units

were in pursuit.” The police incident recall logs support

Prunchak’s statement. Nowhere in the record is there any

indication that Prunchak acted with an intent to harm, or had

any motive other than a desire to do his job. With the benefit

of hindsight, Prunchak’s decision to join the pursuit may have

been ill-advised and his execution may have been careless,

but we cannot say that, from the moment Prunchak heard the

call over the radio, he did not believe he was responding to

an emergency and acted accordingly; poor judgment alone in

a high-speed chase does not violate the Fourteenth Amend-

ment. Because Prunchak’s actions do not meet the “intent to

harm” standard, he is entitled to judgment under step one of

the Saucier analysis.

IV. CONCLUSION

[9] We conclude that high-speed police chases, by their

very nature, do not give the officers involved adequate time

to deliberate in either deciding to join the chase or how to

drive while in pursuit of the fleeing suspect. We hold, there-

fore, that Lewis requires us to apply the “intent to harm” stan-

BINGUE v. PRUNCHAK 491

dard to all high-speed chases. Since Prunchak’s actions do not

meet this stringent standard, Bingue’s claim fails under the

first step of the Saucier analysis and Prunchak is entitled to

dismissal. Consequently, we reverse the judgment of the dis-

trict court and remand for an entry of judgment for Prunchak

on the § 1983 claims.

REVERSED and REMANDED.