                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 15-3338
                                    _____________

                               JAMES S. THOMPSON,
                                              Appellant

                                           v.

                NORMAN HOWARD, Redstone Township Policeman;
                  ROY MEHALIK, Luzerne Township Policeman;
                   TROOPER BROADWATER, PA State Police
                            _______________

                   On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                               (D.C. No. 2-09-cv-1416)
                        District Judge: Hon. Lisa P. Lenihan
                                  _______________

                                       Argued
                                  September 9, 2016

           Before: JORDAN, VANASKIE, and KRAUSE, Circuit Judges.

                               (Filed: February 17, 2017)
                                    _______________

Caitlin R. Garber
Reed Smith
225 Fifth Avenue – Ste. 1200
Pittsburgh, PA 15222

Michael P. Yingling [ARGUED]
Reed Smith
10 S. Wacker Drive – 40th Fl.
Chicago, IL 60606
      Counsel for Appellant
Louis C. Long [ARGUED]
Thomas P. McGinnis
Karin M. Romano
Thomas Thomas & Hafer
525 William Penn Place – Ste. 3750
Pittsburgh, PA 15219
      Counsel for Appellee
                                  _______________

                                        OPINION*
                                     _______________

JORDAN, Circuit Judge.

       The question presented to us is whether a police officer acts in violation of clearly

established law when he shoots at a person who, after crashing a car into an occupied

police cruiser, is fleeing blindly at high speed in a residential neighborhood, driving over

sidewalks and residents’ lawns. We conclude that, under Supreme Court precedent, there

is no clearly established law that makes the use of deadly force in such a scenario

excessive, and the officer is therefore entitled to qualified immunity.




       *
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

                                              2
I.     BACKGROUND

       A.     Factual Background1

       In Republic, Pennsylvania, on the evening of March 9, 2008, Plaintiff James S.

Thompson was a passenger in a car being driven by his girlfriend, Rae Lynn Sigwalt.

Defendant Norman Howard, an on-duty police officer, recognized Sigwalt, whom he had

encountered before. Howard was aware that Sigwalt was the subject of an outstanding

arrest warrant, and he began to follow her. When Sigwalt made a turn without signaling,

he pulled her over.

       After asking for Sigwalt’s license and registration, Howard confirmed that Sigwalt

was still wanted for arrest and asked her to step out of her vehicle. Thompson asked why

they were being stopped, and Howard told him to “shut up.” (App. at 2.) Howard then

handcuffed Sigwalt and put her into the police car.

       At that point, according to Howard, he saw Thompson turning his head, moving

about, and appearing to reach for something.2 He also alleges that he observed

Thompson’s hands down below the seat. He therefore asked Thompson for identification


       1
          In this procedural posture, we interpret the facts in the light most favorable to
Thompson. Curley v. Klem, 298 F.3d 271, 279–80 (3rd Cir. 2002). For the sake of
narrative clarity, we nevertheless highlight some points of disagreement.
        Because Appellant limits his claim of excessive force on appeal to only the
shooting in response to Thompson’s high-speed flight, the factual allegations as to that
portion of the encounter are the ones directly relevant to our inquiry. By way of
background, however, we recount here the other factual circumstances alleged to lead up
to the flight and shooting.
       2
        Thompson contests that he was making reaching movements and in his counter
statement alleges that “he was simply sitting in the passenger seat of the [car].” (App. at
932.)
                                             3
and told him to get out of the car. Howard then performed a pat down of Thompson,

which revealed no weapons.

         Thompson gave Howard his name and social security card. Howard then checked

Thompson’s name with county dispatch, using his portable radio. Howard’s inquiry

returned no outstanding warrants, but he was told by Officer Roy Mehalik, the police

chief of a neighboring township, that he “might want to use some caution with

[Thompson],” (id. at 4), and that Thompson was “dangerous” (id. at 671). Mehalik said

that he would come to the scene to help Howard. When he heard Mehalik’s voice,

Thompson became agitated because, as he later explained, Mehalik had bullied him as a

child.

         Howard told Thompson that, if there was no outstanding warrant for his arrest, he

would be free to go. Nevertheless, Howard insisted that Thompson be handcuffed.

Thompson says he was never told why that was necessary and that, when questioned,

Howard cursed at him. Thompson refused to submit to the handcuffs and insisted that

there was no reason that he should be cuffed.

         After Thompson repeatedly refused to be cuffed, Howard threatened to use his

taser. Howard claims that Thompson then moved towards the passenger side of the car,3

leading Howard to fear that there might be a weapon in the vehicle. Howard decided to

use his taser and did so twice, but neither attempt affected Thompson. During one of

those attempts, Howard accidentally shocked himself. He began to hurl racial epithets at



         3
             Thompson disputes this point.
                                              4
Thompson and threatened to kill him, all while chasing him around the car and ordering

him to get on the ground. During the chase, he struck Thompson repeatedly with a baton.

       After circling the car several times, Thompson jumped into the driver’s seat,

locked the door, and started the engine with the keys that had been left in the ignition.

Howard asserts that he could not see what Thompson was doing with his hands, so he

smashed the glass of the driver’s side window with his baton. Howard reached into the

car, began to again hit Thompson with the baton, and threatened to shoot him.

Meanwhile, Mehalik had arrived at the scene and parked nearby.

       Thompson continued his efforts to escape. He put the car in gear and drove away

while Howard’s arms were still inside the vehicle. Leaning towards the passenger side to

avoid baton blows, he steered into Mehalik’s police cruiser just as Mehalik was opening

the driver’s side door. The collision caused only minor damage to the cruiser and did not

injure Mehalik.4 The parties dispute whether Howard could see that Mehalik had not

been struck by the vehicle. Howard claims that he could not see what happened to

       4
          The impact was sufficiently severe to support Thompson’s conviction in state
court for aggravated assault. Under Pennsylvania law, aggravated assault is defined to
require an intentional act that places another in danger of serious bodily injury. (See
App. at 472 (explaining to the jury that aggravated assault required an intentional attempt
to inflict serious bodily injury)). Thompson’s conviction appears to conclusively
establish that he intentionally hit Mehalik’s vehicle with sufficient force to put him at risk
of serious injury. See Folino v. Young, 568 A.2d 171, 172 (Pa. 1990) (explaining that
“operative facts necessary for non-summary criminal convictions [may] be admitted as
conclusive facts in civil suits arising from the same event”); cf. Anela v. City of
Wildwood, 790 F.2d 1063, 1068 (3d Cir. 1986) (“The federal court, in determining the
collateral estoppel effect of a state court proceeding, should apply the law of the state
where the criminal proceeding took place and also ascertain whether the party against
whom the estoppel is asserted had a full and fair opportunity to litigate the issue decided
in the state court.”).

                                              5
Mehalik and feared for his fellow officer’s safety. Thompson argues to the contrary that,

because Howard was standing in the middle of the road, he could have easily seen

Mehalik throughout the encounter.

       In an attempt to get around Mehalik’s vehicle, Thompson then drove across a

resident’s yard and driveway. He admits that his gas pedal was pressed “all the way to

the floor” and that he was not looking at the road because he was still leaning towards the

passenger side of the vehicle. (Id. at 249.) When Thompson was about 10 to 12 feet

away,5 Howard pulled out his handgun and fired five shots at him. Thompson asserts that

he was driving away from Howard the whole time. Mehalik, claiming that he believed

the vehicle was about to strike Howard, also fired one shot at Thompson. At the time

both officers were shooting, there were no bystanders visible nor any moving cars in the

vicinity.

       None of the six bullets directly hit Thompson. He later said, somewhat

inconsistently, that one grazed his head but also that he never claimed to be injured in any

physical manner. He continued driving away, passed through another resident’s yard,

and nearly struck a parked vehicle. As he drove, he continued to keep his head down to

avoid the gunfire. Thompson was not arrested that day but voluntarily appeared before a

magistrate a few days later.




       5
        During his testimony in the subsequent criminal trial in Pennsylvania court,
Thompson said that the shots were fired almost “instantaneously” after he hit Mehalik’s
car. (App. at 450.)
                                             6
       B.     Procedural Background

       The legal consequences of the melee began immediately. Thompson was charged

in state court with two counts of aggravated assault and counts for simple assault,

resisting arrest, and criminal mischief. The charge of resisting arrest was dismissed

because the judge concluded that Howard’s attempt to handcuff Thompson was not a

lawful arrest. A jury ultimately found Thompson guilty of one count of aggravated

assault, and of simple assault and criminal mischief.

       Thompson subsequently filed this action under 42 U.S.C. § 1983. He sued

Howard and Mehalik, the townships for which they worked, another officer he claimed

filed a false police report, the Pennsylvania State Police, the Commonwealth of

Pennsylvania, and Fayette County. The District Court dismissed most of Thompson’s

claims, including those against Mehalik.6 The only claim that remained was the Fourth

Amendment excessive force claim against Howard.

       After discovery, Howard filed a motion for summary judgment, which the Court

granted. The Court ruled that “[w]hen balancing the force used by [Howard] against the

safety of the officers at the scene and the possible harm to those in the immediate

vicinity, [Howard’s] use of force was objectively reasonable.” (Id. at 18). In the

alternative, it held that, “even if a reasonable jury could conclude from this record that

any of the force used was excessive under the particular facts of this case, [Howard] is


       6
        The District Court relied heavily on the conclusion that Thompson’s criminal
conviction conclusively established that Officer Mehalik’s life had been put in danger
through Thompson’s actions. See supra note 3.

                                              7
entitled to qualified immunity.” (Id.) Thompson filed the present appeal and focuses his

arguments on Howard’s use of a firearm, rather than the taser and baton.

II.    DISCUSSION7

       “The doctrine of qualified immunity protects government officials ‘from liability

for civil damages insofar as their conduct 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) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). The inquiry has two parts. One question is whether the plaintiff has alleged

sufficient facts to “make out a violation of a constitutional right.” Id. at 232. The other

question is “whether the right at issue was clearly established at the time of [the]

defendant’s alleged misconduct.” Id. (internal quotation marks omitted). It is within our

“sound discretion,” id. at 242, to tackle these steps “in the order we deem most

appropriate for the particular case before us.” Santini v. Fuentes, 795 F.3d 410, 418 (3d

Cir. 2015).

       Here, we exercise that discretion to affirm on the basis of the second part of the

qualified immunity test, without deciding whether Howard’s actions did in fact violate

Thompson’s constitutional rights. This is a case “in which the constitutional question is

so factbound that [a] decision provides little guidance for future cases,” Pearson, 555

U.S. at 237, at least as to the constitutionality of the police conduct. Because answering

the first question will be of relatively little value, the doctrine of constitutional avoidance


       7
         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
                                               8
leads us to decide the case by asking whether the right was clearly established. Id. at 241

(“Adherence to [the] two-step protocol departs from the general rule of constitutional

avoidance and runs counter to the older, wiser judicial counsel not to pass on questions of

constitutionality ... unless such adjudication is unavoidable.” (internal quotation marks

omitted)). Thus, we only address whether it would be clear to a reasonable officer at the

time of the incident that shooting at a person fleeing in a vehicle, with the gas pedal

pressed “all the way to the floor,” after striking an occupied police vehicle was an

excessive use of force.

       To decide if a use of force was “objectively reasonable[,]” we consider the

“severity of the crime at issue, whether the suspect pose[d] an immediate threat to the

safety of the officer or others, and whether he [was] actively resisting arrest or attempting

to evade arrest by flight.” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

An officer’s use of deadly force is excessive when it is not “objectively reasonable for the

officer to believe, in light of the totality of the circumstances, that deadly force was

necessary to prevent the suspect’s escape, and that the suspect posed a significant threat

of death or serious physical injury to the officer or others[.]” Abraham v. Raso, 183 F.3d

279, 289 (3d Cir. 1999).

       Here, we focus solely on the shooting that followed Thompson’s vehicular flight.8

In that light, and under controlling Supreme Court case law and the totality of the


       8
        Because Thompson, on appeal, has cabined his claim of excessive use of force to
the shooting, we do not have occasion to consider whether a claim based on the force
used by Howard earlier in the encounter or the course of Howard’s conduct viewed as a
whole would vitiate qualified immunity. Thompson’s allegations regarding Howard’s
                                              9
circumstances, we cannot say it was objectively unreasonable for Howard to believe that

resort to lethal force was warranted. That threshold is a high one. Qualified immunity

exists because “it is inevitable that law enforcement officials will in some cases

reasonably but mistakenly” believe that their actions are legally justified. Anderson v.

Creighton, 483 U.S. 635, 641 (1987). Qualified immunity “gives ample room for

mistaken judgments” and “protect[s] all but the plainly incompetent or those who

knowingly violate the law.” See Kelly v. Borough of Carlisle, 622 F.3d 248, 254 (3d Cir.

2010) (internal quotation marks and citations omitted). Therefore, qualified immunity

applies unless the conclusion that the officer acted unreasonably is “beyond debate.”

Mullenix, v. Luna, 136 S. Ct. 305, 309 (2015). In other words, it applies unless “every

reasonable official would [have understood] that what he [was] doing violate[d]” the right

at issue. Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (internal quotation marks and

citation omitted) (first alteration in original). While “[w]e do not require a case directly

on point, … existing precedent must have placed the statutory or constitutional question

beyond debate.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation omitted).9


lack of self-control and use of racial epithets and death threats are obviously repugnant,
and while we recently held in Johnson v. City of Philadelphia, 837 F.3d 343 (3d Cir.
2016), that a superseding cause may limit an officer’s liability even where a police officer
has arguably acted unreasonably, id. at 351-52, we did not rule out the possibility that
egregious conduct rising to the level of deliberate provocation may be sufficient to
undermine immunity. Id. at 352-53. Given that the use of force claim here was limited
by Thompson to the shooting, we need not decide whether Howard’s earlier conduct
eliminated the protection afforded by qualified immunity.
       9
        The Supreme Court has issued several decisions in the past few years warning
courts against defining clearly established law at a high level of generality. In addition to
Brosseau v. Haugen, 543 U.S. 194 (2004), and Mullenix v. Luna, 136 S. Ct. 305 (2015),
                                             10
       Far from putting the question beyond debate, two Supreme Court cases involving

the use of lethal force and high speed flight illustrate well “the sometimes hazy border

between excessive and acceptable force.” Brosseau v. Haugen, 543 U.S. 194, 195

(2004).

       In Brosseau v Haugen, an officer pursued a suspect who ran away and started a

car. 543 U.S. at 196. The officer tried to stop him by pounding on the car window with a

handgun. Id. The suspect still began to drive away and the officer shot and killed him.

Id. The factual similarities to this case are significant in many respects, and yet the

Supreme Court concluded that it was not clearly established that the use of force was

improper. Id. at 201.

       Likewise, in Mullinex v Luna, the Court reversed a denial of summary judgment

and held that the officer in question, Mullinex, was entitled to qualified immunity when

he shot at “a reportedly intoxicated fugitive, set on avoiding capture through high-speed

vehicular flight, who twice during his flight had threatened to shoot police officers, and

who was moments away from encountering an officer at [a road block]”. 136 S. Ct. at

309. The “correct inquiry,” the Supreme Court instructed, was “whether it was clearly

established that the Fourth Amendment prohibited the officer’s conduct in the situation

[the officer] confronted: whether to shoot a disturbed felon, set on avoiding capture


which are discussed in greater detail herein, at least five other Supreme Court opinions
have recently reversed a denial of qualified immunity because the court below relied on
overly general conclusions. White v. Pauly, 580 U. S. ____ (2017); City and County of
San Francisco v. Sheehan, 575 U. S. ___, ___, n. 3 (2015); Plumhoff v. Rickard, 572 U.
S. ___, ___ (2014); Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012); Ashcroft v. al-Kidd,
563 U. S. 731, 742 (2011).
                                             11
through vehicular flight, when persons in the immediate area are at risk from that flight,”

and the answer the Court gave was that it was not: “Far from clarifying the issue,

excessive force cases involving car chases reveal the hazy legal backdrop against which

Mullinex acted.” Id. at 309 (internal quotation marks omitted).

       After reviewing its excessive force cases, the Court went on to observe that it “has

. . . never found the use of deadly force in connection with a dangerous car chase to

violate the Fourth Amendment, let alone to be a basis for denying qualified immunity.”

Id. at 310. The reasonableness of an officer’s decision to use force against a suspect to

protect other people did not turn on whether the suspect was in fact about to come upon

other people or whether the officer knew with certainty that such a circumstance would

develop. Rather, the Court recounted, it had held previously that an officer did not

violate clearly established law and thus was entitled to qualified immunity “when she

shot a fleeing suspect out of fear that he endangered ‘other officers on foot who [she]

believed were in the immediate area,’ ‘the occupied vehicles in [his] path,’ and ‘any other

citizens who might be in the area.’” Id. at 309-10 (quoting Brosseau v. Haugen, 543 U.S.

194, 197 (2004)) (alterations in original). And it reiterated that officers did not violate

the Fourth Amendment by using deadly force when a fugitive “posed an actual and

imminent threat to the lives of any pedestrians who might have been present,” id. at 310

(quoting Scott v. Harris, 550 U.S. 372, 384 (2007)), or “pose[d] a deadly threat for others

on the road.” Id. (quoting Plumhoff v. Rickard, 132 S. Ct. 2012, 2022 (2014)) (alteration

in original). Because existing precedent did not place beyond debate the conclusion that



                                              12
Mullinex had acted unreasonably, the Court concluded that the right which had allegedly

been violated was not “clearly established.” Id. at 309-10 (internal citation omitted).

       So too here. It is beyond dispute that, by the time Howard began shooting,

Thompson had already demonstrated a reckless disregard for the safety of others by

crashing into Mehalik’s police car as Mehalik was getting out of it. Thompson then

compounded that recklessness by blindly fleeing with the gas pedal “all the way to the

floor,” driving over sidewalks and lawns in a residential neighborhood. (App. at 693,

1011, 1012). Thus, regardless of whether Thompson was at that moment driving towards

or away from the officers, it was not objectively unreasonable for Howard, when

confronted with Thompson’s dangerous, chaotic, high-speed flight, to believe that

Thompson posed a serious risk to persons who might be in the area and to resort to

deadly force to prevent such persons from being injured. See, e.g., Mullinex, 136 S. Ct. at

310-11; Brosseau, 543 U.S. at 197. As in Mullinex, we cannot say that Supreme Court

precedent “squarely governs” the facts here; nor can we say that “only someone ‘plainly

incompetent’ or who ‘knowingly violate[s] the law’ would have perceived a sufficient

threat and acted as [Howard] did.” Mullinex, 136 S. Ct. at 310 (citation omitted)

(alteration in original).10


       10
          It is worth pointing out how closely Thompson’s arguments echo Justice
Stevens’s solitary dissent in Brosseau. 542 U.S. at 202 (Stevens, J., dissenting). Justice
Stevens felt that “the risk of … an accident surely did not justify an attempt to kill the
fugitive.” Id. at 204-05. He argued, just as Thompson has, that since there were disputed
facts as to the reasonableness of the officer’s actions, immunity was improper. Id. at 206-
07. And he even echoed Thompson’s claims that qualified immunity was improper
because immunity was only proper for “uncertainty about the law” rather than for “fact-
specific question[s]” (citation omitted). Id. at 206. But Justice Stevens did not get the
                                            13
       Contrary to Thompson’s assertions, our own case law is also in accord. While he

argues that Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999), requires a different result, that

decision is distinguishable in two ways. First, Abraham did not address qualified

immunity and instead found that summary judgment was inappropriate due to a material

dispute of fact. Id. at 294 (concluding that “a jury will have to determine, after deciding

what the real risk to [the officer] was, what was objectively reasonable for an officer in

[that officer’s] position to believe about her safety, giving due regard to the pressures of

the moment”). Therefore, it is not certain whether the court would have concluded that

no reasonable officer could have responded as the officer did there. The other salient

difference is that the plaintiff in Abraham hit a parked, unmanned car, and there was a

material dispute of fact as to whether he posed a risk to any officer at all. Id. at 283. In

contrast, Thompson hit a marked and manned police vehicle with sufficient force to

justify an aggravated assault conviction, so there was no doubt that Thompson had at

least posed a serious risk when he crashed into the car. Those differences are highly

material and mean that Abraham is not controlling.

       In conclusion, we again emphasize the narrow scope of our holding. We do not

say that Howard was right to have fired at Thompson, or that Howard’s earlier actions

were justifiable. Instead, we simply conclude that, in light of precedent such as Mullenix

and Brosseau, it is not beyond debate that a reasonable officer in Howard’s shoes could


vote of any of the other members of the Supreme Court. Thompson’s position would
require us to ignore what the Supreme Court said in Brosseau and instead to embrace its
dissent – which we clearly cannot do.

                                             14
have thought the use of deadly force was lawful. Accordingly, we cannot say that it was

clearly established that Howard’s decision to fire at Thompson involved excessive force.

Qualified immunity applies in exactly such circumstances.

III.   CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s order of dismissal.




                                            15
