Michael Sauers v. Borough of Nesquehoning

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 17-1591

_____________

MICHAEL SAUERS, Individually and as Administrator

of the Estate of Carola R. Sauers, deceased

v.

BOROUGH OF NESQUEHONING;

CHIEF OF POLICE SEAN SMITH;

OFFICER STEPHEN HOMANKO

Officer Stephen Homanko,

Appellant

________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3-16-cv-00811)

District Judge: Hon. James M. Munley

_______________

Argued

June 4, 2018

Before: AMBRO, JORDAN, and VANASKIE, Circuit

Judges

(Opinion Filed: October 2, 2018)

_______________

Joshua M. Autry [ARGUED]

Frank J. Lavery, Jr.

Lavery Faherty Patterson

225 Market Street

Suite 304, P.O. Box 1245

Harrisburg, PA 17108

Counsel for Appellant

Michael B. Kaspszyk [ARGUED]

Merwine Hanyon & Kaspszyk

2642 Route 940

Pocono Summit, PA 18346

Counsel for Appellee

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

This case arises out of a tragic car accident that injured

Michael Sauers and killed his wife. The crash resulted from

the criminally reckless driving of police officer Stephen

Homanko. Sauers later brought this suit against Homanko

and others pursuant to 42 U.S.C. § 1983 and state law for,

among other things, violating his and his wife’s Fourteenth

Amendment substantive due process rights. Homanko moved

2

to dismiss the § 1983 claim for failure to state a claim and, in

the alternative, he sought qualified immunity. The District

Court denied the motion and Homanko appealed. Because

we conclude that it was not clearly established at the time of

the crash that Homanko’s conduct, as alleged in the

complaint, could give rise to constitutional liability under the

Fourteenth Amendment, we will vacate the District Court’s

denial of qualified immunity. We hope, however, to establish

the law clearly now.

I. Background1

On May 12, 2014, Sauers and his wife were driving

southbound on Route 209 in the Borough of Nesquehoning,

Pennsylvania. At the same time, Homanko was on patrol on

Route 209 and traveling in the same direction when he

observed the driver of a yellow Dodge Neon commit a

summary traffic offense in the northbound lane. Based on

that observation alone, he turned around and began to pursue

the Dodge. At some point he took the time to radio ahead to

the police in the neighboring borough to request that officers

there pull the Dodge over when it reached their jurisdiction.2

1

When reviewing an appeal from a district court’s

ruling on a motion to dismiss, we accept allegations in the

complaint as true and draw all plausible inferences from those

allegations in favor of the plaintiff. Kedra v. Schroeter, 876

F.3d 424, 432, 434 (3d Cir. 2017).

2

When the car arrived in the neighboring jurisdiction,

the officers stopped it as requested but did not charge the

driver with a traffic violation or any other crime.

3

Homanko then decided that catching the Dodge

himself was important enough to warrant a chase at speeds of

over 100 miles-per-hour. Several members of the public

observed him driving recklessly. During the pursuit,

Homanko lost control of his police car while going around a

curve. His car began to spin, crossed the center line into

southbound traffic, and crashed into Sauers’s car. The

accident seriously injured Sauers and killed his wife.

Homanko was subsequently charged and pled guilty to

vehicular homicide, which requires proof beyond a

reasonable doubt of reckless or grossly negligent driving, and

reckless endangerment.3

The criminal case was not the end of Homanko’s legal

trouble. Sauers – individually and as the administrator of his

wife’s estate – initiated the present lawsuit against him,

setting forth federal and state law causes of action, including

a claim under § 1983.4 Sauers premised his § 1983 claim on

a “state-created danger” theory of liability. Homanko moved

3

As recounted in his briefing, Homanko additionally

pled guilty to a number of minor traffic offenses.

4

Sauers also sued the Borough of Nesquehoning and

the Nesquehoning Police Chief. Those parties filed a motion

to dismiss the complaint, separately from Homanko. The

District Court granted the motion as to the police chief and

granted it in part and denied it in part as to the Borough.

Those rulings have not been appealed. Accordingly, this

appeal addresses only the District Court’s denial of

Homanko’s request for qualified immunity.

4

to dismiss only that claim. He argued that the complaint did

not plausibly allege a state-created danger claim and, in the

alternative, that he was entitled to qualified immunity because

it was not clearly established in May 2014 that negligent or

reckless police driving could give rise to a constitutional

cause of action. The District Court denied Homanko’s

motion as to both liability and qualified immunity.

As to liability, the Court determined that the complaint

adequately pled a state-created danger claim, a determination

that Homanko does not now appeal. The Court further

concluded that the law was clearly established in May 2014

that “any reasonable officer would have known that pursuing

a potential traffic offender in excess of 100 miles-per-hour

under the[] circumstances [alleged in the complaint] gives

rise to a state-created danger claim.” (App. at 21.) That

determination is the subject of this appeal.

II. Discussion5

Qualified immunity protects government officials from

civil damages for conduct that “does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (citation omitted). Thus, courts

5

The District Court had jurisdiction under 28 U.S.C.

§§ 1331, 1343, and 1367. We have jurisdiction pursuant to

28 U.S.C. § 1291 over interlocutory appeals raising a purely

legal challenge to a denial of qualified immunity. Mirabella

v. Villard, 853 F.3d 641, 648 (3d Cir. 2017). Because this

appeal raises only a question of law, we have jurisdiction and

our review is plenary. Id.

5

assessing a claim of qualified immunity must answer two

questions. One is whether the defendant’s conduct violated a

statutory or constitutional right. The other is whether the

right at issue was clearly established when the conduct took

place. We have discretion to address either inquiry first. Id.

at 236.

In its recent decisions addressing qualified immunity,

the Supreme Court has “repeatedly told courts … not to

define clearly established law at a high level of generality.”

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (citation

omitted). The question in this case therefore cannot be

framed simply in terms of recklessness generally.

Homanko’s request for qualified immunity must be assessed

within the context of the case law that has developed from

accidents caused by high-speed police pursuits that injure

third parties.

A. Sauers’s Complaint Pleads a Plausible State-

Created Danger Claim.

Homanko has not appealed the District Court’s

determination that the complaint adequately describes a

constitutional violation, and for good reason. The pleadings

describe a police officer driving at speeds over 100 miles-per-

hour on a two-way, undivided road to catch someone who had

committed a minor traffic infraction. There was no

emergency at all, and Homanko likely did the most that was

warranted when he radioed the police in a neighboring

jurisdiction to stop the offender. His hyper-aggressive

decision to chase the Dodge cannot be justified. Nonetheless,

to determine whether his conduct violated a clearly

6

established constitutional right, we must take the time to

define that right and explain why the conduct violated it.

Defining a right at the appropriate level of specificity

is often the most critical aspect of a qualified immunity

analysis. In undertaking that task, we are guided by the

Supreme Court’s repeated instructions to do so in light of the

particular facts of the case at hand. See Kisela, 138 S. Ct. at

1152; White v. Pauly, 137 S. Ct. 548, 552 (2017); Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015). We accordingly define the

right at issue here as one not to be injured or killed as a result

of a police officer’s reckless pursuit of an individual

suspected of a summary traffic offense when there is no

pending emergency and when the suspect is not actively

fleeing the police.

As earlier noted, Sauers’s complaint relies on the state-

created danger theory of liability to establish his right to be

free from what Homanko did. That doctrine embodies the

principle that the government has an obligation under the

Fourteenth Amendment’s Due Process Clause “to protect

individuals against dangers that the government itself

creates.” Haberle v. Troxell, 885 F.3d 170, 176 (3d Cir.

2018). Establishing a claim under that doctrine requires a

plaintiff to plead four elements:

(1) [t]he harm ultimately caused was

foreseeable and fairly direct;

(2) a state actor acted with a degree of

culpability that shocks the conscience;

7

(3) a relationship between the state and the

plaintiff existed such that the plaintiff was a

foreseeable victim of the defendant’s acts, or a

member of a discrete class of persons subjected

to the potential harm brought about by the

state’s actions, as opposed to a member of the

public in general; and

(4) a state actor affirmatively used his or her

authority in a way that created a danger to the

citizen or that rendered the citizen more

vulnerable to danger than had the state not acted

at all.

Id. at 176-77 (citation omitted). It is clear, we think, that the

complaint adequately alleges elements one, three, and four.

Whether Homanko’s alleged conduct shocks the conscience is

a closer call.

The level of culpability required “to shock the

contemporary conscience” falls along a spectrum dictated by

the circumstances of each case. County of Sacramento v.

Lewis, 523 U.S. 833, 847-49 & n.8 (1998). Our case law

establishes three distinct categories of culpability depending

on how much time a police officer has to make a decision.

Haberle, 885 F.3d at 177. In one category are actions taken

in a “hyperpressurized environment[.]” Id. (citation omitted).

They will not be held to shock the conscience unless the

officer has “an intent to cause harm.” Id. (citation omitted).

Next are actions taken within a time frame that allows an

officer to engage in “hurried deliberation.” Id. (citation

omitted). When those actions “reveal a conscious disregard

of a great risk of serious harm” they will be sufficient to

8

shock the conscience.6 Id. (quotation marks and citation

omitted). Finally, actions undertaken with “unhurried

judgments,” with time for “careful deliberation,” will be held

to shock the conscience if they are “done with deliberate

indifference.” Id. (citation omitted). Our case law is clear

that this “shocks the conscience” framework for analysis

applies to police-pursuit cases. Brown v. Pa. Dep’t of Health

& Emergency Med. Servs. Training Inst., 318 F.3d 473, 480

(3d Cir. 2003); cf. Kedra v. Schroeter, 876 F.3d 424, 432, 448

(3d Cir. 2017) (relying on pre-2014 case law to conclude that

the state-created danger doctrine was a clearly established

theory of liability in September 2014).

The District Court rightly interpreted the complaint to

allege that Homanko “had at least some time to deliberate”

before deciding whether and how to pursue the traffic

offender. (App. at 16.) That places the fact-pattern in the

second category of culpability, requiring inferences or

allegations of a conscious disregard of a great risk of serious

harm. That conclusion is supported by the allegation that

6

The District Court identified “gross negligence or

arbitrariness” as the level of culpability required to shock the

conscience when an officer has time only for hurried

deliberation. (App. at 11-12.) We have described the “gross

negligence or arbitrariness” standard, however, as one “that

provides little guidance.” Sanford v. Stiles, 456 F.3d 298, 310

(3d Cir. 2006). We have been clear in recent years that the

level of culpability required to shock the conscience when an

officer has time for hurried deliberation is “a conscious

disregard of ‘a great risk of serious harm[.]’” Haberle, 885

F.3d at 177 (quoting Sanford, 456 F.3d at 310); accord

Kedra, 876 F.3d at 437.

9

Homanko, at some point, had time to call the neighboring

police department as he was contemplating his actions. It is

further supported by an obvious inference from the nature of

the Dodge driver’s mild provocation: there was no

emergency arising from a simple traffic violation. The

liability question thus becomes whether deciding to pursue a

potential summary traffic offender at speeds of over 100

miles-per-hour, after radioing for assistance from the

neighboring jurisdiction where the potential offender was

headed, demonstrates a conscious disregard of a great risk of

serious harm. We have no difficulty in concluding that it

does.

Engaging in a high-speed pursuit on public roadways

at speeds of over 100 miles-per-hour threatens “all those

within … range [of the pursuit], be they suspects, their

passengers, other drivers, or bystanders.” Lewis, 523 U.S. at

853. Every police officer understands that risk. That is why

we expect our law enforcement personnel to engage in such

pursuits only when “reasonable justification” exists. Id. at

846. Responding to a true emergency may be a reasonable

justification. Pursuing an actively fleeing suspect who is

endangering the public welfare may also be a reasonable

justification. But attempting to catch someone who has

committed a minor traffic offense, especially when other law

enforcement officials have been alerted to stop the offender,

is not a reasonable justification for driving “careless[ly]” and

at “speed[s] in excess of 100 mph.” (App. at 31-32.)

Homanko did not have to make a split-second decision “in

haste” and “under pressure.” Lewis, 523 U.S. at 853 (citation

omitted). He could have let the officers in the neighboring

jurisdiction handle the routine traffic stop as, in fact, they did.

10

Instead, he chose to engage in a reckless and unjustifiable

pursuit, with tragic consequences.

In sum, Sauers adequately pled that Homanko’s

conduct was conscience-shocking under our state-created

danger framework. The complaint therefore contains a

plausible claim that Homanko violated Sauers’s and his

wife’s Fourteenth Amendment substantive due process rights.

B. The Right at Issue Was Not Clearly

Established In May 2014.

The existence of a substantive due process claim

having been established, we now turn to the central issue of

this appeal, namely whether Homanko had fair warning that

he could be subject to constitutional liability for actions taken

in conscious disregard of a great risk of harm during the

course of a police pursuit. We conclude that he did not. At

the time of the crash in May 2014, the state of the law was

such that police officers may have understood they could be

exposed to constitutional liability for actions taken during a

police pursuit only when they had an intent to harm. Thus, it

was not at that time clearly established that Homanko’s

actions could violate the substantive due process rights of

Sauers and his wife.

A right is clearly established when the law is

“sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” Reichle

v. Howards, 566 U.S. 658, 664 (2012) (internal quotation

marks, citation, and alteration omitted). That does not require

a prior precedent with indistinguishable facts, “but existing

precedent must have placed the statutory or constitutional

11

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

741 (2011). Existing precedent is sufficient to place a

constitutional question beyond debate and to defeat qualified

immunity only if it is “controlling authority in [the relevant]

jurisdiction,” Wilson v. Layne, 526 U.S. 603, 617 (1999), or if

“a ‘robust consensus of cases of persuasive authority’ in the

Court of Appeals” has settled the question, Mammaro v. N.J.

Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir.

2016) (quoting Taylor v. Barkes, 135 S. Ct. 2042, 2044

(2015)).

When qualified immunity is at issue, context matters.

The “inquiry ‘must be undertaken in light of the specific

context of the case, not as a broad general proposition.’”

Mullenix, 136 S. Ct. at 308 (quoting Brosseau v. Haugen, 543

U.S. 194, 198 (2004) (per curiam)). When courts fail to take

into consideration the “particularized” facts of a case, they

permit plaintiffs “to convert the rule of qualified immunity …

into a rule of virtually unqualified liability simply by alleging

violation of extremely abstract rights.” White, 137 S. Ct. at

552 (alteration in original) (quoting Anderson v. Creighton,

483 U.S. 635, 639-40 (1987)).

There is, moreover, an important distinction between

assessing whether a plaintiff has pled a “clearly established

theory of liability” and the question of whether that theory is

fairly applied to a government official in light of the facts in a

given case. See Kedra, 876 F.3d at 435 (explaining that a

particular right is only clearly established when the state of

the law gave the relevant official “fair warning that his

actions were unconstitutional in the particular factual scenario

he confronted” (internal quotation marks, citation, and

editorial marks omitted)). It is only when both the theory of

12

liability and its application to the established facts are

sufficiently plain that the legal question of liability is beyond

legitimate debate and a plaintiff can defeat a qualified

immunity defense. Id. at 435-36. In this instance, as

discussed above, Sauers’s complaint relies on the clearly

established state-created danger theory of liability. The

particular factual allegations, meanwhile, involve a police

pursuit of a non-fleeing summary traffic offender.

Accordingly, to assess whether the right to be free of

the risk associated with a non-emergency but reckless police

pursuit was clearly established in May 2014, we must ask

whether Supreme Court precedent, our own precedent, or a

consensus of authority among the courts of appeals placed

that right beyond debate. See al-Kidd, 563 U.S. at 741-42;

Kedra, 876 F.3d at 450. Qualified immunity, after all,

protects even those officials who exercise extraordinarily

poor judgment. al-Kidd, 563 U.S. at 743. Law enforcement

officials do not get stripped of qualified immunity every time

a judge, with the clarity afforded by hindsight, believes that

an official has committed a wrong. Otherwise, the very

purpose of qualified immunity – to give law enforcement

officials the benefit of all reasonable doubt in the exercise of

their professional duties – would be undermined. If any

uncertainty existed in the law in May 2014 as to whether

reckless police driving could give rise to constitutional

liability in circumstances such as those alleged here, then we

must afford Homanko the protections of qualified immunity.

Our survey of the relevant cases reveals that the law was not

so clear as to be “beyond debate.” Id. at 741.

An officer on patrol in May 2014 could have

reasonably understood, based on prevailing law, that he could

13

pursue a potential traffic offender, even recklessly, without

being subjected to constitutional liability. The Supreme

Court, in County of Sacramento v. Lewis, 523 U.S. 833

(1998), had adopted an intent-to-harm standard in a police

pursuit case involving a high-speed chase of dangerously

fleeing suspects. Id. at 854. In the years between that

decision and the events at issue here, the courts of appeals

were inconsistent in whether to apply the intent-to-harm

standard in police-pursuit cases only when an exigency

necessitated a chase, or whether to apply that standard in all

police-pursuit cases, regardless of any exigencies.

Lewis involved a police officer who was pursuing two

suspects actively fleeing the police in a dangerous manner.

Id. at 836. The suspects, riding together on a motorcycle,

were weaving in and out of traffic at high speeds. Id. After

the driver of the motorcycle lost control and crashed, the

pursuing officer accidentally struck and killed one of the

suspects. Id. at 837. The Court characterized the situation as

involving an officer who had to make an “instantaneous”

reaction to the fleeing suspects’ “outrageous behavior[.]” Id.

at 855. It held that, in such circumstances, a police pursuit

will not give rise to a substantive due process violation absent

a specific intent to harm. Id. at 854. In reaching that

conclusion, the Court noted that conduct intended to cause

harm was “most likely to rise to the conscience-shocking

level” and that negligent conduct was never sufficient for a

substantive due process claim. Id. at 849. It also explained,

however, that conduct falling between intentional conduct

and negligent conduct was “a matter for closer calls” that

could, given the right circumstances, be actionable under the

Fourteenth Amendment. Id.

14

Lewis, then, clearly established that an officer can be

liable for a substantive due process violation resulting from a

high-speed pursuit of a dangerously fleeing suspect only if the

officer intended to cause harm. But it left open the possibility

that a lower level of culpability could suffice in the right

circumstances. In May 2014, the courts of appeals had not

coalesced around what those circumstances might be in the

police-pursuit context. The Tenth Circuit, in Green v. Post,

addressed a police officer’s request for qualified immunity in

a case analogous to ours and explained that

there are many permutations on the theme of

police pursuits; while most involve high speeds,

there are many variables, including whether the

officer is responding to an emergency or not,

whether he or she is directly pursuing a fleeing

suspect or not, and, significantly under Lewis

and cases interpreting it, whether the officer has

time for actual deliberation.

574 F.3d 1294, 1309 (10th Cir. 2009).

In Green, an innocent driver was killed after a police

officer crashed into the victim’s car as the officer “was

simply trying to catch up to [a] suspected violator of the

law[.]” Id. at 1297. The suspect had allegedly filled his car

up with approximately $30 worth of gas without paying for it.

Id. at 1296. The crash occurred as the officer “was traveling

straight through [an] intersection at a high rate of speed and

without his vehicle’s siren or lights on[.]” Id. The officer

admitted “that he was not responding to an emergency

situation” and that the suspect was not actively fleeing him.

Id. at 1297.

15

The court identified the officer’s actions as falling “in

the middle range of the culpability spectrum” identified by

Lewis – more than negligent but not quite intentional – that

could potentially give rise to a substantive due process

violation. Id. at 1302 (citation omitted). It thus applied the

“deliberate indifference” standard when assessing the

officer’s conduct. Id. at 1302-03. Although it concluded that

the conduct was not sufficiently conscience-shocking to

violate the Fourteenth Amendment, the court nonetheless

proceeded to analyze whether the law on police pursuits was

clearly established. Id. at 1303-04.

It noted that at least two of our sister circuits – the

Eighth and Ninth Circuits – have adopted an “intent to harm”

standard for all police pursuit cases, whether or not an

emergency existed at the time of pursuit. Id. at 1308-09

(citing Bingue v. Prunchak, 512 F.3d 1169, 1177 (9th Cir.

2008); Helseth v. Burch, 258 F.3d 867, 871 (8th Cir. 2001)

(en banc)). The Ninth Circuit, for its part, held “that the

Lewis standard of ‘intent to harm’ applies to all high-speed

police chases,” and it refused to “draw a distinction between

‘emergency’ and ‘non-emergency’ situations” involving an

officer’s attempt to apprehend a suspect.7 Bingue, 512 F.3d at

7

Although the Ninth Circuit appears to have limited

its application of Lewis’s intent-to-harm standard to

“situations involving high-speed chases aimed at

apprehending a fleeing suspect,” any such limitation does not

undermine that court’s explicit refusal to distinguish between

“‘emergency’ and ‘non-emergency’ situations.” Bingue, 512

F.3d at 1177. It also leaves open the question of whether a

suspect leaving the scene of a crime, who does not know that

16

1177. Similarly, the Eighth Circuit interpreted Lewis as

meaning “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, 258 F.3d at 871. After surveying the state of the law

after Lewis, the Tenth Circuit concluded that “it was not

clearly established [in June 2006] what specific standard [of

culpability] applied to … [an] officer … engaged in a high-

speed non-emergency response to a call to locate and arrest a

suspected gas thief.” Id. at 1304.

The Eighth Circuit has since reemphasized its

interpretation of Lewis. In Sitzes v. City of West Memphis, it

was faced with circumstances in which a police officer

responded to a 911 report of a robbery in a Wal-Mart parking

lot involving $55 and an alleged assault. 606 F.3d 461, 464

(8th Cir. 2010). Despite the fact that the crime was not

reported to be ongoing, and that other officers were already

en route to the scene, the defendant-officer decided to drive

between 80 and 90 miles-per-hour on a 30 mile-per-hour two-

way street without turning on his sirens or emergency lights.

Id. In racing to the parking lot, the officer crossed over into

opposing traffic, ultimately crashing into a bystander’s car at

an intersection and killing one of the occupants. Id. The

court nevertheless upheld the application of an intent-to-harm

standard because the defendant-officer had testified that he

“subjectively” believed that he was responding to an

emergency. Id. at 468. The court explained that that standard

the police are pursuing him, should be considered a “fleeing

suspect.” It is far from certain, therefore, what standard of

culpability the Ninth Circuit would apply to the facts at issue

here.

17

was appropriate even though the facts “might not qualify as

an ‘emergency’ under” police department policies. Id. And,

importantly, it held that it did “not ‘reject intent-to-harm as

the governing 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.

(citation omitted). According to that court, “the amount of

time [an officer has] to deliberate on his actions is not, by

itself, sufficient to render the intent-to-harm standard

inapplicable.” Id.

Given those decisions by the Eighth, Ninth, and Tenth

Circuits, we cannot conclude that case law by May of 2014

had clearly established that an officer’s decision to engage in

a high speed pursuit of a suspected traffic offender could, in

the absence of an intent to harm, give rise to constitutional

liability.8 A police officer could have understood that, as

8

Our own precedents do not provide any added clarity

regarding the proper standard by which to judge whether an

officer’s conduct shocks the conscience in police pursuits that

involve neither an emergency nor a fleeing suspect. Although

we have indicated that the “shocks the conscience” standard

applies to police pursuit cases, see Brown, 318 F.3d at 480

(“[T]he ‘shocks the conscience’ standard should apply in all

substantive due process cases if the state actor had to act with

urgency[, including] police pursuit cases[.]”), our cases do not

give fair warning that, absent an intent to harm, police could

face constitutional liability based on a high-speed pursuit, see,

e.g., Davis v. Twp. of Hillside, 190 F.3d 167, 171 (3d Cir.

1999) (applying Lewis intent to harm standard to injury of

bystander who was injured as a result of a high-speed pursuit

of a fleeing suspect).

18

long as he believed a pursuit was justified, constitutional

liability would not follow based on recklessness alone.

Our dissenting colleague disagrees, concluding that it

was obvious in May 2014 that Homanko’s conduct violated

the Constitution. Concur./Dissent at 9-10. To the dissent, it

is of high importance that the Tenth Circuit in Green applied

a deliberate difference standard to a police driving case that,

as here, involved neither an emergency nor an actively fleeing

suspect. But the dissent discounts the fact that no court of

appeals (until now) has joined the Tenth Circuit in

distinguishing between those police pursuit cases in which a

true exigency exists and those in which less is at stake. As

we have described above, at least two courts of appeals have

explicitly questioned the sort of distinction drawn by the

Tenth Circuit.9

We agree with the Tenth Circuit’s application of a

culpability standard below that of “intent to harm” in a non-

emergency police pursuit case – indeed the entire panel here

is in accord on that point. Where we part company with our

dissenting colleague is at his rejection of the rest of the Tenth

Circuit’s decision. That court acknowledged that the law was

not yet clearly established. We accept the accuracy of that

assessment then and believe the law as of May 2014 still

9

The dissent minimizes the import of Bingue and

Helseth because those cases involved conduct differing from

the conduct alleged here. But those differences do not alter

those courts’ explicit holdings that the intent-to-harm

standard should apply to police pursuits whether or not the

officer is responding to a pending emergency.

19

remained unsettled; our dissenting colleague disagrees.

While he evidently views the legal conclusion about

constitutional liability as obvious, we do not. Nor can we say

that the Tenth Circuit’s decision in Green alone amounts to

the “‘robust consensus of cases of persuasive authority’ in the

Court of Appeals” that we have held necessary to clearly

establish a right in the absence of controlling precedent.

Mammaro, 814 F.3d at 169 (quoting Taylor, 135 S. Ct. at

2044). That is especially so in light of the Eighth Circuit’s

post-Green decision in Sitzes.

The dissent also suggests that Homanko’s guilty plea

to vehicular homicide and reckless endangerment supports the

conclusion that he violated a clearly established constitutional

right. Concur./Dissent at 10 n.3. Assuming that a guilty plea

to a state criminal statute is important in deciding whether the

culpable conduct violated a clearly established right

guaranteed by the United States Constitution, see Kane v.

Barger, No. 17-3027, --- F.3d ---, 2018 WL 4000068, at *7

(3d Cir. Aug. 22, 2018) (suggesting, though not holding, that

conduct meeting a state criminal statute is more likely to

violate a clearly established constitutional right),10 a

10

We note that Kane’s ultimate rejection of qualified

immunity rested on the fact that our own precedent contained

factually and legally analogous case law to put the defendant

“on notice that he acted unconstitutionally.” Kane, 2018 WL

4000068, at *7. No such case law existed in our Circuit in

May 2014 that would have given Homanko fair warning that

he could be subject to constitutional liability for actions

during a police pursuit that were not taken with an intent to

harm.

20

conviction for reckless behavior does not help answer the

issue in this appeal: namely, was the law settled in May 2014

that, absent a specific intent to harm, constitutional liability

could be imposed on a police officer engaged in a police

pursuit. We think it was not, and the sympathy we have for

the victims of Officer Homanko’s serious error does not

change that.

Consequently, although Homanko’s judgment was bad

to the point of recklessness, he is entitled to qualified

immunity on Sauers’s § 1983 state-created danger claim.11

C. Establishing the Law in the Third Circuit.

Although the state of the law in May 2014 was

unsettled as to whether police officers engaged in a police

pursuit could be subject to constitutional liability for a level

of culpability less than an intent to harm, our opinion today

should resolve any ambiguity in that regard within this

Circuit. Police officers now have fair warning that their

conduct when engaged in a high-speed pursuit will be subject

to the full body of our state-created danger case law. That

law clearly establishes that the level of culpability required to

shock the conscience exists on a spectrum tied to the amount

of time a government official has to act. In the police pursuit

context, it is also necessary to take into consideration the

11

We emphasize that our decision on qualified

immunity does not mean that Homanko is immune from any

suit arising from his conduct; he is only immune to a suit

alleging the federal constitutional claims made here. He

remains exposed to state law tort claims that can, and have

been, brought against him, so Sauers is not without a remedy.

21

officer’s justification for engaging in the pursuit. We

recognize that most high-speed police pursuits arise when

officers are responding to emergencies or when they must

make split-second decisions to pursue fleeing suspects. Our

holding today does nothing to alter the longstanding principle

that, in such cases, constitutional liability cannot exist absent

an intent to harm. But when there is no compelling

justification for an officer to engage in a high-speed pursuit

and an officer has time to consider whether to engage in such

inherently risky behavior, constitutional liability can arise

when the officer proceeds to operate his vehicle in a manner

that demonstrates a conscious disregard of a great risk of

serious harm.

III. Conclusion

For the foregoing reasons, we will vacate the District

Court’s denial of Homanko’s request for qualified immunity.

22

VANASKIE, Circuit Judge, concurring in part and dissenting

in part.

I agree with my colleagues that under our state-created

danger framework, the facts alleged by Appellee Michael

Sauers readily establish that Officer Homanko’s conduct was

conscience-shocking. I also agree that, going forward,

“[p]olice officers now have fair warning that their conduct

when engaged in a high-speed pursuit will be subject to the full

body of our state-created danger case law.” Maj. Slip Op. at

15. I therefore join parts II.A and II.C of the majority’s

decision in full. However, because I believe that a reasonable

officer in Homanko’s position would have known on May 12,

2014, that the outrageous conduct alleged in this case was

unconstitutional, I respectfully dissent from the majority’s

finding that Homanko is entitled to qualified immunity.

I.

Under the second prong of the qualified immunity

analysis, we must ask “the objective (albeit fact-specific)

question whether a reasonable officer could have believed

[Homanko’s conduct] to be lawful, in light of clearly

established law and the information [he] possessed.” Anderson

v. Creighton, 483 U.S. 635, 641 (1987). In undertaking this

analysis, the “key issue” is whether a reasonable police officer

in Homanko’s position could have believed that driving a

police cruiser at speeds in excess of 100 miles-per-hour to

catch up to an unsuspecting motorist, who allegedly committed

a minor traffic infraction, “comported with established legal

standards” as they existed on the date of the accident. Beers-

Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001)

(citation omitted). Critically, “it need not be the case that the

exact conduct has previously been held unlawful so long as the

‘contours of the right’ are sufficiently clear such that a ‘general

constitutional rule already identified in the decisional law’

applies with ‘obvious clarity’” to the established facts. Kedra

v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017) (internal

citations omitted) (quoting Anderson, 483 U.S. at 640; Hope v.

Pelzer, 536 U.S. 730, 741 (2002)). This principle holds true

“‘even in novel factual circumstances,’ because the relevant

question is whether the state of the law at the time of the events

gave the officer ‘fair warning.’” Id. (quoting Hope, 536 U.S.

at 741).

Here, I agree with the majority that, as of May 2014, it

was “clear” that Homanko’s conduct would be evaluated

pursuant to our Court’s sliding scale of culpability.1 Maj. Slip

Op. at 8. I also agree with the majority that our Court has “been

clear in recent years that the level of culpability required to

shock the conscience when an officer has time for hurried

deliberation is a conscious disregard of a great risk of serious

harm.” Id. at 8 n.6 (alterations and citations omitted). And,

like the majority, I too “have no difficulty in concluding” that

an officer who exhibits deplorable judgment and

“unjustifiabl[y]” pursues “a potential summary traffic offender

at speeds of over 100 miles-per-hour, after radioing for

assistance from the neighboring jurisdiction where the

1

The Supreme Court in County of Sacramento v. Lewis,

523 U.S. 833 (1998), indicated that a sliding scale of culpable

conduct applied to determine whether a law enforcement

officer’s actions were sufficiently conscienceshocking to

impose liability, stating that the deliberate indifference

“standard is sensibly employed only when actual deliberation

is practical.” Id. at 851. There is no dispute here that “actual

deliberation” by Homanko was practical.

2

potential offender was headed, demonstrates a conscious

disregard of a great risk of serious harm.” Id. at 8-9. Applying

these mutually held premises to the question of whether the

Sauers’ due process rights were clearly established on the date

in question, it would appear, therefore, that the majority and I

are in agreement that “the contours of the right are sufficiently

clear[] such that a general constitutional rule already identified

in the decisional law applies with obvious clarity” to the

established facts. Kedra, 876 F.3d at 450 (internal citations

omitted).

Yet despite our conspicuous agreements on the

pertinent legal principles and their application to the facts at

hand, the majority has concluded that Homanko is entitled to

qualified immunity on the ground that the law was not “settled

in May 2014 that, absent a specific intent to harm,

constitutional liability could be imposed on a police officer

engaged in a police pursuit..” Maj. Slip Op. at 20 (emphasis

added). Justification for such a finding eludes me. To endorse

the majority’s conclusion, one must accept the proposition that

on May 12, 2014, a reasonable police officer—fully informed

of the legal principles recited above—would not have

considered it conscience-shocking to (1) execute a U-turn into

oncoming traffic for the sole purpose of catching a potential

traffic offender, and then (2) proceed in breakneck fashion to

pursue the unmindful offender at speeds over 100 miles-per-

hour, all while being fully aware that there are officers ahead

better positioned to execute a stop.

Our case law does not compel such an implausible

conclusion. On the date in question here, a reasonable officer

undertaking a non-emergency, high-speed pursuit would have

known that in police pursuit cases brought under 42 U.S.C. §

1983, we assess whether an officer’s conduct “shocks the

3

conscience” by gauging how much time the officer had to

deliberate before deciding to give chase. Maj. Slip Op. at 8

(citing, inter alia, Brown v. Pa. Dep’t of Health & Emergency

Med. Servs. Training Inst., 318 F.3d 473, 480 (3d Cir. 2003)).

Indeed, five years prior to the date in question, the Tenth

Circuit held in Green v. Post, 574 F.3d 1294, 1302–03 (10th

Cir. 2009), that Lewis’s intent-to-harm standard does not apply

if—as here—an officer is not engaged in a hot pursuit of a

fleeing suspect, but rather is engaged in a non-emergency,

high-speed, unilateral pursuit of a suspected offender who is

unaware that she is being chased. In such circumstances, the

officer’s conduct is evaluated under a “middle level [standard]

of culpability” that looks to whether the officer acted with

“conscious, deliberate indifference to an extreme risk of very

serious harm to the plaintiff.” Id. at 1303. The “middle level

standard” applied in Green mirrors the “mid-level standard”

that we formally adopted in Sanford v. Stiles, 456 F.3d 298,

307 (3d Cir. 2006), and that the majority applied here. See Maj.

Slip Op. at 8 n.6.

In my view, qualified immunity should not be granted

here simply because there is little case law imposing liability

on a police officer who drives his cruiser at speeds in excess of

100 miles per hour in a non-emergency situation. Neither the

Supreme Court nor our Court has ever adopted a liability-based

litmus test for determining whether a right was clearly

established on the date in question. See Kedra, 876 F.3d at 450

(“[I]t need not be the case that the exact conduct has previously

been held unlawful so long as the ‘contours of the right’ are

sufficiently clear. . . .”) (quoting Anderson, 483 U.S. at 640)

(emphasis added); see also Brown v. Muhlenberg Twp., 269

F.3d 205, 211 n.4 (3d Cir. 2001) (“If the unlawfulness of the

defendant’s conduct would have been apparent to a reasonable

4

official based on the current state of the law, it is not necessary

that there be binding precedent from this circuit so advising.”).

Instead the touchstone of our analysis is reasonableness:

“Qualified immunity gives government officials breathing

room to make reasonable but mistaken judgments about open

legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743

(2011). And based on the state of the law on May 12, 2014, it

is readily apparent to me that a reasonable officer would have

known—based on the general constitutional principles

delineated in our case law and Green’s pronouncement that

Lewis does not apply to unilateral, non-emergency pursuits of

a non-fleeing suspect—that the type of conduct exhibited by

Officer Homanko was unconstitutional.

The three cases cited by the majority—two of which

pre-date Green by several years—do not, in my opinion, alter

this conclusion. When seeking guidance from our sister

courts, “[t]he dispositive question is whether the violative

nature of particular conduct is clearly established.” L.R. v.

Sch. Dist. of Philadelphia, 836 F.3d 235, 248 (3d Cir. 2016)

(quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per

curiam) (emphasis in original)). And the particular conduct at

issue here is not found in either Bingue v. Prunchak, 512 F.3d

1169 (9th Cir. 2008), or Helseth v. Burch, 258 F.3d 867 (8th

Cir. 2001) (en banc), as both of those cases centered on conduct

that took place during the hot pursuit of a “fleeing” suspect and,

as such, were clearly governed by Lewis. See Bingue, 512 F.3d

at 1177 (“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.”) (emphasis added); see

also Helseth, 258 F.3d at 872 (“[The suspect] was a fleeing

criminal, whose irresponsible high-speed driving endangered

5

countless citizens and ultimately killed one innocent bystander

and maimed another. . . .”) (emphasis added).

Nor did Sitzes v. City of West Memphis, 606 F.3d 461

(8th Cir. 2010), involve the particular conduct at issue here.

Sitzes involved an accident in February of 2007 when an officer

responding to a reported robbery and assault drove his vehicle

at speeds between 80 and 90 m.p.h. and collided in an

intersection with another car, killing the innocent driver and

injuring a passenger. The majority in Sitzes relied upon the

fact that the officer in question subjectively believed that he

was responding to an emergency in holding that the “intent to

harm” standard, and not a “deliberate indifference” or

“conscious disregard of a great risk of serious harm” standard,

applied to the officer’s conduct. Significantly, the majority

plainly indicated that the “intent to harm” standard would not

control where the officer did not subjectively believe that the

situation presented a real emergency, stating:

Although we are deeply troubled by Officer

Wright's actions, we cannot say that the district

court erred in applying the intent-to-harm

standard in this case. First, we must reject

plaintiffs' primary argument, which bases liability

on the situation . . . not being a “true” emergency.

Terrell forecloses inquiry into the objective

nature of the emergency, as substantive due

process liability turns on the intent of the

government actor. 396 F.3d at 980. Thus, the fact

that the situation . . . was not as serious as those

presented in Helseth or Terrell, or that it might not

qualify as an “emergency” under the [police

department] Policy and Procedure manual, is not

determinative of the appropriate level of scrutiny.

6

Neither is the fact, emphasized by the dissent, that

Officer McDougal and others testified that they

would never have driven in the manner that

Officer Wright did, or that Officer McDougal

responded to the situation . . . differently than

Officer Wright. This would all be more relevant

if our question was whether the situation was an

objectively “true” emergency. However, it bears

little relevance to the question of what Officer

Wright subjectively believed. . . .

We agree with the dissent that our opinion

should not be read to establish a rule that an

officer can insulate himself from substantive due

process liability, no matter the circumstances, by

simply averring that he subjectively believed the

situation to which he was responding was an

emergency. See Terrell, 396 F.3d at 980 n. 2.

This could lead to the absurd results forecasted

by the dissent. For example, the dissent fears that

this case could be used to insulate from

substantive due process liability an officer who

drove “100 miles per hour through a children's

playground during recess time,” or an officer

who drove “the wrong way down an interstate

highway ... when responding to something as

routine as a reported accident requiring traffic

control[,]” as long as the officer stated that he

believed the situation to be an emergency. First,

such cases are far beyond the factual scenarios of

Lewis, Helseth, and Terrell, which involved

officers using conventional emergency driving

techniques to respond to perceived emergencies.

7

Nothing in our opinion would countenance

granting summary judgment in either of the two

situations presented by the dissent. Second, we

think it very likely that an officer who

intentionally drove through a playground or the

wrong way on an interstate highway could be

held liable even under the intent-to-harm

standard, regardless of the officer's avowed

belief, at least absent some compelling exigency

not described in the hypotheticals. In sum, we do

not understand this case to establish a per se rule

that an officer's self-serving affidavit will always

insulate that officer from substantive due process

liability. Instead, we simply hold that the

plaintiffs have failed to create a genuine issue of

fact as to Officer Wright's subjective belief and

that this belief is not so preposterous as to reflect

bad faith on the part of Officer Wright.

Id. at 468, 469-70. Thus, far from rejecting application of a

conscious disregard standard to police conduct that did not

concern an emergency situation, Sitzes actually suggests that

such a standard does apply when it is clear that the officer was

not confronted with an emergency situation. And in our case,

we are in full agreement that “[t]here was no emergency at all,

and Homanko likely did the most that was warranted when he

radioed the police in a neighboring jurisdiction to stop the

offender.” Maj. Slip Op. at 6. The reliance in Sitzeson the

officer’s belief in that case that he faced an emergency situation

can be read as providing notice to law enforcement officers that

8

they are not insulated from liability for engaging in egregiously

reckless criminal conduct in a non-emergency context.2

Green on the other hand—as the majority plainly

recognized—“arose in a non-emergency setting and did not

involve a suspect fleeing the police in a dangerous manner.”

Maj. Slip Op. at 14. Those facts—again as the majority

recognized—are akin “to the allegations in this case. . . .” Id.

The majority is correct in its assertions that “[w]hen qualified

immunity it at issue, context matters” and that courts must

“take into account the ‘particularized’ facts of a case.” Maj.

Slip Op. at 11. Green, therefore, is the only case that addresses

the context and particularized conduct at issue here. And when

read in conjunction with the “general constitutional rule

already identified in the decisional law,” it is evident—indeed,

“obvious”—that a reasonable officer would have known on

May 12, 2014, that Officer Homanko’s admittedly criminal

2

Contrary to the majority’s assertion, we do not

minimize the import of the Ninth Circuit’s holding in Bingue

or the Eighth Circuit’s holding in Helseth. Instead, we rely

upon the Eighth Circuit’s post-Helseth and post-Bingue careful

delineation between emergency and non-emergency situations

articulated in Sitzes..We also rely and on the Tenth Circuit’s

holding in Green that the intent to harm standard does not

apply in the non-emergency context to conclude that a

reasonable police officer would know in May of 2014 that the

type of conduct engaged in by Homanko was conscience-

shocking such that liability could be imposed.

9

conduct was unconstitutional.3 Kedra, 876 F.3d at 450

(citation omitted).

3

It bears reiterating that Officer Homanko pled guilty to

vehicular homicide and reckless endangerment. A reasonable

officer engaged in criminal conduct that resulted in the loss of

life and severe personal injuries in a violent collision surely

would understand that his conduct would be regarded as

sufficiently conscience-shocking so as to preclude the defense

of qualified immunity. Indeed, it would appear that his guilty

plea would defeat the defense of official immunity under

Pennsylvania tort law that would otherwise be available to

Officer Homanko for engaging in conduct that fell within the

scope of his duties. See 42 Pa.C.S.A. § 8550 (application of

official immunity otherwise available under 42 Pa.C.S.A. §

8446(2) is foreclosed where “it is judicially determined that the

act of the employee caused the injury and that such act

constituted a crime, actual fraud, actual malice or willful

misconduct.”). This reinforces the conclusion that a

reasonable law enforcement officer would understand that he

could not take another person’s life through criminal conduct

and yet retain qualified immunity. Notably, in Kane v. Barger,

No. 17-3027, --- F.3d ---, 2018 WL 4000068, at *7 (3d Cir.

Aug. 22, 2018), we held that a law enforcement officer’s

conduct that merely “resemble[d] the crime of indecent

assault” – the officer had touched the plaintiff’s intimate parts

for his own gratification – was such that “given the

egregiousness of [defendant’s] violation of [plaintiff’s]

personal security and bodily integrity, the right here is so

‘obvious’ that it could be deemed clearly established even

without materially similar cases.” So, too, here the

obviousness of Officer Homanko’s violation of the plaintiffs’

10

Our decision in Kedra supports this conclusion. There,

the mother of a Pennsylvania State Trooper brought a § 1983

claim against a police instructor who accidentally shot a loaded

handgun into the trooper’s chest during a routine training

session, killing him. Kedra, 876 F.3d at 432. The complaint

alleged that the officer’s conduct was conscience shocking

because he “bypassed all of the safety checks [and] failed to

physically or visually inspect the gun to ensure it was

unloaded” before pulling the trigger. Id. at 433. Like the

majority here, we concluded in Kedra that the allegations gave

rise to the inference that the officer “acted with actual

knowledge of a substantial risk of lethal harm” so as to shock

the conscience under a then-clearly established theory of

deliberate indifference. Id. at 448 (citations omitted). We then

turned to the question of whether the right at issue—i.e., “an

individual’s right not to be subjected, defenseless, to a police

officer’s demonstration of the use of deadly force in a manner

contrary to all applicable safety protocols”—was clearly

established on the date in question. Id. at 449 (footnote

omitted). After reciting the general constitutional rules

identified in our decisional law and analyzing the facts of a

“closely analogous case from the First Circuit,” we concluded

that a reasonable officer would have had fair warning that the

conduct at issue was constitutionally prohibited on the date in

question. Id. at 450–52 (citation omitted).

The same conclusion applies here. The general

constitutional principles are clear. Green applied those

principles to an analogous set of facts. The unconstitutional

rights to life and bodily integrity defeats the defense of

qualified immunity even in the absence of materially similar

cases.

11

nature of Homanko’s actions, placing at substantial risk those

traveling a two-lane, undivided highway in recklessly criminal

pursuit of an unsuspecting motorist for a minor traffic

infraction, was clearly established when he slammed into the

Sauers’ vehicle, mortally injuring Mrs. Sauer and severely

injuring her husband.

I respectfully dissent.

12