                                                                     F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                        PUBLISH
                                                                     JUN 24 1998
                   UNITED STATES COURT OF APPEALS
                                                                   PATRICK FISHER
                                                                            Clerk
                                TENTH CIRCUIT



 SUSAN RADECKI, Individually and
 as personal representative of the Estate
 of Chester A. Radecki, Deceased,
 KRISTIN RADECKI; KERRY
 RADECKI; RENEE RADECKI; and
 ROBERT RADECKI,

              Plaintiffs - Appellees,
                                                     No. 96-2297
       v.

 RON BARELA, personally and in his
 official capacity; BENJIE
 MONTANO, personally and in his
 official capacity,

              Defendants-Appellants.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF NEW MEXICO
                    (D. Ct. No. CIV-93-1488-LH)


Joseph F. Canepa, Canepa, Vidal & Fitzgerald, P.A., Santa Fe, New Mexico
(Martin Esquivel, Dines, Gross & Wilson, P.C., Albuquerque, New Mexico, with
him on the briefs), appearing for Defendants-Appellants.

Robert R. Rothstein, Rothstein, Donatelli, Hughes, Dahlstrom, Cron &
Shoenburg, LLP, Santa Fe, New Mexico, appearing for Plaintiffs-Appellees.


Before TACHA, McWILLIAMS, and BALDOCK, Circuit Judges.
TACHA, Circuit Judge.


      At issue in this appeal is whether the district court erred in denying

Defendant Ron Barela’s summary judgment motion based on qualified immunity

in this action brought against him under 42 U.S.C. § 1983. Plaintiffs are Chester

A. Radecki’s survivors. Defendant is a Santa Fe County, New Mexico Deputy

Sheriff. Plaintiffs alleged that Deputy Barela violated Mr. Radecki’s Fourteenth

Amendment right to due process of law by creating a dangerous situation that

resulted in Mr. Radecki’s death. Deputy Barela moved for summary judgment on

the basis of qualified immunity, and the district court denied his motion. We

exercise jurisdiction under 28 U.S.C. § 1291. In light of the Supreme Court’s

recent articulation in County of Sacramento v. Lewis, — S. Ct. —, 1998 WL

259980 (U.S. May 26, 1998), of the degree of culpability necessary to sustain a

substantive due process claim in a case such as this, we reverse.

I.    Background

      The facts of this case are tragic. At approximately 3:00 a.m. on August 8,

1992, Mr. Radecki awoke to the sound of a woman screaming outside his

bedroom window in Santa Fe, New Mexico. He looked out the window and heard

more screaming and the sound of someone walking around outside. Shortly

thereafter, Deputy Barela arrived nearby in a police car with lights flashing. Mr.


                                        -2-
Radecki left his home, got in his car, and drove to the scene.

      When Deputy Barela arrived on the scene, a motorcycle lay on the side of

the road. Eric Trujillo drove up in a tow truck. Deputy Barela detected a man in

the bushes, and with his flashlight recognized him as Daniel Martinez. Martinez

staggered out of the bushes. Martinez, who appeared to be intoxicated, told

Deputy Barela and Trujillo that his girlfriend had run him off the road, causing

him to wreck. Deputy Barela began to look around the area for other vehicles or

injured persons.

      Mr. Radecki arrived in a robe carrying a flashlight. He told Deputy Barela

that he lived nearby, and that he had heard screams, as if a woman were being

raped. Deputy Barela and Radecki explored the scene with their flashlights, with

Martinez close behind. When Deputy Barela shined his flashlight on a car in the

bushes, Martinez tried to grab Deputy Barela’s nine millimeter semiautomatic

pistol. The two men wrestled for control of the gun. Deputy Barela yelled to

Radecki, “Hit him with your flashlight. Hit him. Get him off me.”

      It is unclear whether Radecki hit Martinez with his flashlight. In response

to Deputy Barela’s command, however, Radecki approached the struggling pair.

At that point, Martinez wrested the gun away from Deputy Barela, who then fled

to the bushes. Martinez turned and shot Radecki in the chest, killing him.

      Plaintiffs brought suit against Deputy Barela under 42 U.S.C. § 1983. They


                                         -3-
alleged that he violated Mr. Radecki’s substantive due process rights under the

Fourteenth Amendment. They specifically asserted that Deputy Barela violated

the Constitution by increasing Radecki’s vulnerability to harm by a third party

when Deputy Barela ordered Radecki to intervene in the struggle over the gun,

surrendered the gun to Martinez, and ran and hid in the bushes when Martinez

gained control of the gun. In the early stages of this case, Deputy Barela moved

unsuccessfully for summary judgment based on qualified immunity.

      Qualified immunity protects government officials from individual liability

in a section 1983 action unless the officials violated clearly established

constitutional rights. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). When

a defendant pleads qualified immunity, the plaintiff must then make a two-part

showing. See Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995). “First,

the plaintiff must demonstrate that the defendant's actions violated a

constitutional or statutory right.” Id. “Second, the plaintiff must show that the

constitutional or statutory rights the defendant allegedly violated were clearly

established at the time of the conduct at issue.” Id.

      We previously entertained Deputy Barela’s appeal from the denial of his

motion for summary judgment on grounds of qualified immunity. See Radecki v.

Barela, 77 F.3d 493 (10th Cir. 1996) (unpublished table decision). In that

decision, we remanded so that the district court could consider whether Plaintiffs


                                          -4-
had alleged conduct amounting to a constitutional violation in light of our

decision in Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995), cert. denied, 516 U.S.

1118 (1996). In Uhlrig, we held that in order for a plaintiff to prevail on a

substantive due process claim against an individual police officer, she must

demonstrate that the officer acted in a manner that “shocks the conscience.” Id.

at 571. Upon remand, the district court held that Plaintiffs did allege facts that

Deputy Barela’s conduct shocks the conscience. The district court further held

that our decision in Medina v. City and County of Denver, 960 F.2d 1493 (10th

Cir. 1992), clearly established that Deputy Barela’s conduct was unconstitutional.

Thus, the district court again denied qualified immunity to Deputy Barela.

Deputy Barela again appeals.

II.   Standard of Review

      “We review the district court’s denial of qualified immunity on summary

judgment de novo.” Romero v. Fay, 45 F.3d 1472, 1475 (10th Cir. 1995). As

with other summary judgment appeals, we review the evidence in the light most

favorable to the nonmoving party. See id. When we review summary judgment

decisions involving a qualified immunity defense, however, our review is

somewhat different than other summary judgment rulings. We follow the

analytical framework that the Supreme Court established in Siegert v. Gilley, 500

U.S. 226, 231-33 (1991). See Romero, 45 F.3d at 1475.


                                         -5-
       Siegert established that a district court’s first task in evaluating a

defendant’s assertion of qualified immunity is to determine whether the plaintiff

has alleged the violation of a constitutional right at all. See id. at 231-32;

Romero, 45 F.3d at 1475. “Normally, it is only then that a court should ask

whether the right allegedly implicated was clearly established at the time of the

events in question.” County of Sacramento v. Lewis, — S. Ct. at —, 1998 WL

259980, at *4 n.5. Whether a plaintiff has alleged conduct by a defendant that

violates the Constitution and whether that prior law clearly prohibited the

defendant’s conduct are questions of law that we review de novo. See Romero,

45 F.3d at 1475.

III.   Discussion

       Section one of the Civil Rights Act of 1871, 42 U.S.C. § 1983, provides a

remedy against any person who, under color of state law, deprives another of

rights protected by the Constitution. See Collins v. City of Harker Heights, 503

U.S. 115, 120 (1992). Plaintiffs’ section 1983 claim rests on the Due Process

Clause of the Fourteenth Amendment, which states: “nor shall any State deprive

any person of life, liberty, or property, without due process of law.” U.S. Const.

amend. XIV, § 1. Plaintiffs do not assert that Deputy Barela violated the

procedural component of the Clause; rather, they rely on its substantive

component “that protects individual liberty against ‘certain government actions


                                           -6-
regardless of the fairness of the procedures used to implement them.’” Collins,

503 U.S. at 125 (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)). Plaintiffs

specifically assert that Deputy Barela violated the Constitution by creating the

danger that resulted in Radecki’s death. In accordance with the Siegert

framework, we must first determine whether, viewing the evidence in the light

most favorable to the plaintiff, Deputy Barela committed a constitutional

violation.

      In Uhlrig, this Circuit articulated the standard for judging whether a

governmental officer’s actions violate the substantive component of the Due

Process Clause. See Uhlrig, 64 F.3d at 573. Relying on the Supreme Court’s

enunciation of the standard in Collins, in which the Supreme Court equated

arbitrary state conduct with state conduct that “shocks the conscience,” we made

clear that in order to prevail on a substantive due process claim such as the one

asserted here, the plaintiff must demonstrate that the defendant acted in a manner

that shocks the conscience. Id. (citing Collins, 503 U.S. at 126). We were

compelled to acknowledge in Uhlrig, however, that the level of culpability that

must be shown under the “shocks the conscience” standard is difficult to define.

In an effort to guide our analysis of whether particular conduct “shocks the

conscience,” we emphasized the importance of three basic principles highlighted

by the Supreme Court in evaluating substantive due process claims: “(1) the need


                                         -7-
for restraint in defining their scope, (2) the concern that § 1983 not replace state

tort law, and (3) the need for deference to local policymaking bodies in making

decisions impacting upon public safety.” Uhlrig, 64 F.3d at 573 (citations

omitted). In a case decided this term, the Supreme Court has relied on these three

basic principles and clarified the degree of culpability required to meet the

conscience-shocking standard. See County of Sacramento v. Lewis, — S. Ct. —,

1998 WL 259980 (U.S. May 26, 1998). That decision controls this case.

      Lewis addressed whether a police officer engages in conduct that shocks

the conscience, thereby violating substantive due process, “by causing death

through deliberate or reckless indifference to life in a high-speed automobile

chase aimed at apprehending a suspected offender.” Lewis, — S. Ct. at —, 1998

WL 259980, at *2. In Lewis, the defendant officer, driving a patrol car, pursued

a motorcycle through a residential neighborhood for 75 seconds at speeds up to

100 miles per hour, covering a distance of 1.3 miles. The only violation that the

motorcyclist apparently had committed was driving at a high rate of speed. The

chase ended after the motorcycle fell over while turning. The patrol car struck

the motorcycle passenger, killing him. The victim’s family brought a section

1983 claim against the officer, the county, and the sheriff’s office, alleging a

substantive due process deprivation. The Ninth Circuit held that the degree of

fault necessary to state a constitutional claim in high-speed police chases is


                                         -8-
deliberate indifference to, or reckless disregard for, another’s right to life and

personal security. See Lewis v. County of Sacramento, 98 F.3d 434, 441 (9th Cir.

1996). The Supreme Court unanimously rejected the Ninth Circuit’s use of the

deliberate indifference standard in the context of high-speed chases, holding that

under the circumstances presented “only a purpose to cause harm unrelated to the

legitimate object of arrest will satisfy the element of arbitrary conduct shocking to

the conscience, necessary for a due process violation.” Lewis, — S. Ct. at —,

1998 WL 259980, at *2.

      It is important to be precise about the conduct that is at issue in this case

and why Lewis controls it. In Lewis , the defendant officer himself inflicted the

harm on the victim. In this case, the harm to Mr. Radecki was ultimately caused

by a private third party (Martinez). Nevertheless, the conduct complained of was

that of Deputy Barela, and the pivotal question is whether the officer’s conduct

resulted in a constitutional deprivation. Our analysis does not change simply

because a private third party inflicted the harm.

      It is true, of course, that “state actors are generally only liable under the

Due Process Clause for their own acts and not private violence.”      Uhlrig , 64 F.3d

at 572. There are, however, two exceptions to that rule. First, the state may be

subject to constitutional liability if it does not perform a duty to provide

protection to an individual with whom the state has a special relationship because


                                          -9-
it has assumed control over that individual, such as in a prison.    See id. at 572.

Second, the state may be constitutionally liable if it creates a danger that results

in harm to an individual, even if that harm is ultimately inflicted by a private

party. See id. The “shocks the conscience” standard applies to both types of

suits. See id. at 572-73.

       Plaintiffs here seek recovery under a “danger creation” theory. They

contend that the constitutional violation arose from Deputy Barela’s decision to

involve a bystander, Radecki, in the dangerous struggle for the gun, and then to

abandon him once Martinez had gained control of the firearm.        Lewis speaks

directly to the degree of culpability required to shock the conscience under these

circumstances.

       The Supreme Court in Lewis builds upon the three principles that we

articulated in Uhlrig and translates them into a sound framework, grounded in

common sense, for analyzing those myriad situations involving law enforcement

and governmental workers deployed in emergency situations.          Lewis rejects again

any tendency to equate constitutional liability with tort liability. More

importantly, however, the    Lewis opinion underscores the need for deference to

local officials making decisions in emergency situations. The Court first

reiterates the important principle that rejects “the lowest common denominator of

customary tort liability as any mark of sufficiently shocking conduct” and holds


                                            - 10 -
“that the Constitution does not guarantee due care on the part of state officials;

liability for negligently inflicted harm is categorically beneath the threshold of

constitutional due process.”    Lewis , — S. Ct. at —, 1998 WL 259980, at *7. The

Court then observes that conscience-shocking behavior is most likely to be found

“at the other end of the culpability spectrum”—that is, where there is an intent to

do harm that is not justified by any government interest.     Id. The Court next

specifically recognizes that in the middle range of the culpability spectrum, where

the conduct is more than negligent but less than intentional, there may be some

conduct that is egregious enough to state a substantive due process claim.        See id.

at *8. Within this middle range,     Lewis directs us to analyze the level of

culpability by examining the circumstances that surround the conduct at issue and

the governmental interest at stake.

       Instead of defining conscience-shocking conduct by expounding on the

meaning of “arbitrary” conduct, as     Collins directs (and as the district court did),

Lewis points our inquiry to the official’s opportunity for deliberation and in doing

so draws important analogies to the Eighth Amendment prison context.            See id. at

**8-9 (citing, among others,    Whitley v. Albers , 475 U.S. 312 (1986); City of

Revere v. Massachusetts Gen. Hosp.      , 463 U.S. 239 (1983); and   Estelle v. Gamble ,

429 U.S. 97 (1976)). Attention to the marked differences between, for instance, a

normal custodial situation in a prison and a violent disturbance in a prison “shows


                                           - 11 -
why the deliberate indifference that shocks in the one case is less egregious in the

other.” Id. at *8. We are directed to employ the “deliberate indifference”

standard only when actual deliberation is practical.    Id. In the custodial situation

of a prison, actual deliberation is not only possible but required in those matters

that affect an inmate’s general well-being, such as medical care, proper exercise,

and adequate nutrition. These are matters about which public officials must make

policy decisions with careful attention to their special relationship to those in

custody—and about which they have the luxury of prolonged consideration.

Lewis contrasts those deliberative policy judgments with decisions that prison

officials must make during a riot. Deliberate indifference does not suffice for

constitutional liability under the Eighth Amendment “when a prisoner’s claim

arises not from normal custody but from response to a violent disturbance.”       Id.

at *9.

         The Court directly analogizes the level of culpability required for an Eighth

Amendment violation in the prison context to the level required for substantive

due process liability, instructing that the analysis rests upon:

         the luxury enjoyed by prison officials of having time to make
         unhurried judgments, upon the chance for repeated reflection, largely
         uncomplicated by the pulls of competing obligations. When such
         extended opportunities to do better are teamed with protracted failure
         even to care, indifference is truly shocking. But when unforeseen
         circumstances demand an officer’s instant judgment, even precipitate
         recklessness fails to inch close enough to harmful purpose to spark
         the shock that implicates “the large concerns of the governors and the

                                           - 12 -
      governed.”

Id. at *7 (quoting Daniels v. Williams , 474 U.S. 327, 332 (1986)).    Lewis

specifically analogizes a prison official’s response in a riot situation to a police

officer’s conduct in a high speed chase. Both situations require the officer’s

instant judgment, and accordingly, no substantive due process claim can lie unless

the defendant official’s conduct was unjustified by any government interest and

was “tainted by an improper or malicious motive.” Id. at *11.

      Therefore, in assessing the constitutionality of law enforcement actions, we

now distinguish between emergency action and actions taken after opportunity for

reflection. Appropriately, we are required to give great deference to the decisions

that necessarily occur in emergency situations. In the many cases that involve

“lawless behavior for which the police were not to blame,”     id., we are no longer

obliged to try to give meaning to the word “arbitrary” as the district court tried to

do.

      Henceforth, we look to the nature of the official conduct on the spectrum of

culpability that has tort liability at one end. On the opposite, far side of that

spectrum is conduct in which the government official intended to cause harm and

in which the state lacks any justifiable interest. In emergency situations, only

conduct that reaches that far point will shock the conscience and result in

constitutional liability. Where the state actor has the luxury to truly deliberate


                                          - 13 -
about the decisions he or she is making, something less than unjustifiable intent to

harm, such as calculated indifference, may suffice to shock the conscience.

       Applying the standard thus enunciated in     Lewis , the result in this case is

clear. Deputy Barela was confronted with a suddenly explosive law enforcement

situation when Martinez tried to seize Barela’s gun with Radecki present. Deputy

Barela had no time for deliberation. The undisputed facts in this record make

clear that Deputy Barela was confronted with the kind of instantaneous judgment

call that is so often required of law enforcement personnel, prison officials, and

many other government actors called to emergency situations. Sometimes these

decisions are negligent, sometimes they are even reckless, sometimes indifferent.

Under these circumstances, however, where Plaintiffs have not even alleged that

Deputy Barela acted with an intent to harm the participants or to worsen their

legal plight, under the   Lewis standard there is no constitutional liability.

       As the Supreme Court found in      Lewis , regardless of whether Deputy

Barela’s behavior “offended the reasonableness held up by tort law or the balance

struck in law enforcement’s own codes of sound practice, it does not shock the

conscience, and petitioners are not called upon to answer for it under § 1983.”

Lewis , — S. Ct. at —, 1998 WL 259980, at *11. There being no constitutional

violation, the plaintiffs cannot sustain the first of the two-part showing required

to rebut the defendant’s assertion of qualified immunity.


                                           - 14 -
      The order denying summary judgment is reversed and the case is remanded

for entry of judgment in favor of the defendants.




                                       - 15 -
