                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-1687
                                     ___________

Dorothy I. Feist, individually, and as  *
trustee for the heirs and next of kin of*
Brian Keith Feist, deceased,            *
                                        *
             Plaintiff-Appellee,        *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Bradley Jon Simonson,                   *
                                        *
             Defendant-Appellant,       *
                                        *
Kim Johnson; Robert Glasrud;            *
Matthew Blade; City of Minneapolis,     *
Minnesota; Craig Nordby,                *
                                        *
             Defendants.                *
________________________________ *
                                        *
Solutions of the Tragedy of Police      *
Pursuits,                               *
                                        *
      Amicus on Behalf of Appellee.     *
                                   ___________

                               Submitted: February 16, 2000

                                    Filed: July 25, 2000
                                     ___________
Before McMILLIAN, LAY, and JOHN R. GIBSON, Circuit Judges.
                             ___________


LAY, Circuit Judge.

       This is an appeal by Bradley Jon Simonson, a police officer for the Minneapolis
Police Department, arising from his high-speed pursuit of a stolen automobile. Brian
Feist was traveling eastbound on Interstate 94 near downtown Minneapolis and was
killed when the pursued suspect’s car crashed into him while traveling against traffic.
Dorothy Feist brought this action against Simonson under 42 U.S.C. § 1983. The
district court denied Simonson’s motion for summary judgment on the ground of
qualified immunity. This interlocutory appeal followed.1

      The essential question in this case is whether Officer Simonson’s conduct rises
to the level of a due process deprivation under the Fourteenth Amendment. In
evaluating whether a state officer enjoys the privilege of qualified immunity in the face
of an alleged Fourteenth Amendment violation, the Supreme Court recently held in
County of Sacramento v. Lewis, 523 U.S. 833, 847-48 n.8 (1998), that the “threshold


      1
        On March 19, 1999, Feist moved for dismissal of Simonson’s appeal for lack
of jurisdiction on the basis of Johnson v. Jones, 515 U.S. 304 (1995). Johnson holds
that appellate courts lack jurisdiction to review a denial of summary judgment based
on qualified immunity where the appellant seeks review only of the district court’s
determination that the evidence is sufficient to support a finding that particular conduct
occurred. On April 22, 1999, an administrative panel from this court denied Feist’s
motion. In the present case, the facts leading up to the crash and Feist’s death are
essentially undisputed. As the issue of jurisdiction has been raised and ruled upon and
we find the panel’s decision in line with Johnson, the panel’s ruling stands. See also
Gainor v. Rogers, 973 F.2d 1379, 1382 (8th Cir. 1992) (“It is well settled that the
denial of a summary judgment motion which asserts qualified immunity from suit is
appealable ‘to the extent that it turns on an issue of law.’”) (quoting Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985)).

                                           -2-
question” is whether the police officer’s conduct is “so egregious, so outrageous” that
it serves to “shock the contemporary conscience.” Section 1983 does not provide a
forum for litigation of state tort law–thus, if the conduct arises only to the level of
negligence or recklessness, the federal forum stands foreclosed to those who seek
reparation for damage.2

                              I. Facts and Background

The Chase




      2
        As stated in County of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998)
(citations omitted):

      In Paul v. Davis, 424 U.S. 693, 701 (1976), . . . we explained that the
      Fourteenth Amendment is not a “font of tort law to be superimposed upon
      whatever systems may already be administered by the States,” and in
      Daniels v. Williams, 474 U.S., at 332, we reaffirmed the point that “[o]ur
      Constitution deals with the large concerns of the governors and the
      governed, but it does not purport to supplant traditional tort law in laying
      down rules of conduct to regulate liability for injuries that attend living
      together in society.” We have accordingly rejected the lowest common
      denominator of customary tort liability as any mark of sufficiently
      shocking conduct, and have held 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.
      It is, on the contrary, behavior at the other end of the culpability spectrum
      that would most probably support a substantive due process claim;
      conduct intended to injure in some way unjustifiable by any government
      interest is the sort of official action most likely to rise to the conscience-
      shocking level. See Daniels v. Williams, 474 U.S., at 331 (“Historically,
      this guarantee of due process has been applied to deliberate decisions of
      government officials to deprive a person of life, liberty, or property”).

                                           -3-
       According to the record, on August 11, 1996, Simonson observed a black Ford
Galaxy matching the description of a reportedly stolen vehicle traveling eastbound on
Lake Street in Minneapolis. Simonson made a U-turn and followed the Galaxy. The
driver, Darren Shannon, voluntarily pulled the vehicle over. At this point, Simonson
had no reason to suspect the driver of anything other than the unauthorized use of a
motor vehicle, which is a low-level felony. Simonson exited his squad car with his
weapon drawn and ordered both the driver and the passenger to put their hands in the
air. Neither individual complied. Simonson repeated the order two more times, after
which the suspect yelled an expletive and quickly took off in the car. Simonson ran
back to his cruiser, activated his lights and siren, and notified dispatch of the chase.

       Simonson followed the Galaxy northbound on Park Avenue, then approximately
eight blocks westbound on East 28th Street, which is a one-way going east. Shannon
made several more turns and ran two stop signs and two stop lights in the process.
Shannon eventually headed northbound on Portland Avenue, a one-way street running
south, with Simonson still in pursuit. After two more turns, Shannon and Simonson
drove onto the entrance ramp of eastbound Interstate 94. The cars proceeded down the
interstate, and Shannon eventually crossed a grassy median on I-94 and exited the
interstate via the southbound Hiawatha Avenue off-ramp. Simonson continued to give
chase.

       Shannon eventually turned around on Hiawatha and drove northbound in the
southbound lanes. In so doing, Shannon passed Simonson on the driver’s side of the
squad car. Simonson then made a U-turn and witnessed Shannon re-enter eastbound
I-94 through the Hiawatha exit ramp. Simonson, now joined by three other squads,
followed Shannon down the off-ramp. At this point, Shannon, Simonson, and the three
secondary squads were all driving westbound in the eastbound lanes. Simonson
estimated Shannon’s speed at around 70 miles per hour.




                                          -4-
       As the chase headed the wrong way down I-94, Simonson observed both
Shannon and his passenger making obscene gestures at him through the windows of the
Galaxy. Shannon was also weaving back and forth through the traffic lanes. Simonson
shadowed Shannon’s course on I-94, even following him the wrong way through a
tunnel.3

       During the chase, Feist drove eastbound on I-94 heading toward Shannon and
the cruisers. Traffic slowed almost to a stop as Shannon and the officers continued
their course. Feist swerved into the right shoulder to avoid rear-ending the car in front
of him. Upon entering the shoulder, Feist’s vehicle was immediately crushed by
Shannon’s vehicle, which was being pursued in the right-hand shoulder of I-94. The
estimated closing speed of the two cars was 97 to 104 miles per hour (146.6 feet per


      3
       As the district court noted, various law enforcement officers testified as to their
opinions about the chase.

      Sgt. Johnson, the MPD pursuit instructor, testified that he would probably
      not have chased a stolen car the wrong direction down the interstate. He
      acknowledged that, in order to pursue a vehicle the wrong way on an
      interstate highway, a “very hazardous situation,” the crime for which the
      vehicle is being pursued must be very serious. He admitted that, “you
      need a damn good reason to chase somebody into a highly dangerous
      traffic situation.” Similarly, MPD Officer Alan Rathbun acknowledged
      that chasing a car the wrong way down the interstate “creates an
      unreasonable risk of danger to the public,” and Chief Olson admitted that
      such a chase represents an “inherently dangerous activity.” Chief Olson
      also testified that auto theft is “on the low end of the felony spectrum”
      and catching a car thief is “not worth taking a citizen’s life.”

(Mem. Op. and Order at 8-9 (citations omitted).) Furthermore, Sergeant Craig Nordby,
the on-duty patrol supervisor monitoring the pursuit, testified at his deposition that he
received no information from the pursuing officers regarding either the traffic level on
eastbound I-94 or the number of squads involved in the pursuit.

                                           -5-
second). Both Shannon and his passenger were injured, and Feist died on the scene.
An accident reconstructionist found Feist free of any fault.

       Approximately 1500 feet west of the point of impact stands the Lowry Hill
tunnel. The Lowry Hill tunnel is noticeably longer than the tunnel through which
Simonson pursued Shannon, and it is even more dangerous due to its narrow build and
the existence of a blind curve within. Assuming a driving speed of 70 miles per hour,
Shannon and the officers would have reached the tunnel traveling the wrong way within
approximately fifteen seconds.

       In all, the chase lasted over six minutes and spanned over six miles, 1.2 of which
were in the wrong direction down I-94. The cars sped through residential areas, past
the Minneapolis Institute of Arts and a nearby park, and onto the stretch of road
intersecting I-94 and Interstate 35, the two primary throughways in Minneapolis/St.
Paul.

Simonson’s History

        Simonson has a documented history of engaging in high-speed pursuits. He
testified at his deposition that he may have been a party to over 100 such chases during
his ten-year career with the Minneapolis Police Department. He was reportedly a party
to twelve chases in one twenty-day period alone. Simonson admitted to his
involvement in as many as twelve to fifteen chases in a single month. He has never
terminated a chase voluntarily. His actions at the conclusion of a high-speed pursuit
in 1990 led to two suits against him and the City of Minneapolis, which resulted in
$555,000 in liability for the City. See Olson v. City of Minneapolis, Civ. No. 3-95-61;
Mattson v. City of Minneapolis, Civ. No. 3-96-741.

The District Court’s Opinion


                                          -6-
       The district court,4 in a well-reasoned opinion, denied Simonson’s motion for
summary judgment and held the facts of this case were clearly distinguishable from
Lewis. In Lewis, officers encountered a motorcycle being driven at a high rate of
speed. Lewis was a passenger on the motorcycle. The driver refused to obey the
officer’s instruction to pull over, and a chase ensued. While attempting to make a sharp
turn, the motorcycle tipped over and skidded to a halt. Lewis was struck by the
officer’s vehicle and pronounced dead at the scene of the accident. The Ninth Circuit
applied the standard of deliberate indifference in determining whether the officer’s
conduct “shocked the conscience” for Fourteenth Amendment purposes. The appellate
court reversed the district court’s prior grant of summary judgment based on the
officer’s qualified immunity. See Lewis v. Sacramento County, 98 F.3d 434 (9th Cir.
1996).

       The Supreme Court reversed the Ninth Circuit, holding that the chase did not
violate the Fourteenth Amendment’s requirement of due process because the officer’s
conduct did not shock the conscience. The Court viewed the officer’s conduct as
instinctive and spontaneous, and the Court recognized that decisions made during a
high-speed pursuit are made “in haste, under pressure, and frequently without the
luxury of a second chance.” Lewis, 523 U.S. at 853 (quotation omitted). Reinstating
the district court’s dismissal, the Court held that where deliberation by the officer is not
a possibility, “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.” Id. at 836. Thus, “high-speed chases with no intent to harm
the suspects physically or to worsen their legal plight do not give rise to liability under
the Fourteenth Amendment, redressible by an action under § 1983.” Id. at 854.




       4
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota, presiding.

                                            -7-
       The intent standard for conscience shocking behavior is not always applied in
high-speed chases resulting in an alleged due process violation, however. As the Court
recognized, “[w]hether the point of the conscience shocking is reached when injuries
are produced with culpability falling within the middle range, following from something
more than negligence but less than intentional conduct, such as recklessness or gross
negligence, is a matter for closer calls.” Id. at 849 (quotation omitted). Some
government acts falling within this spectrum may present an actionable Fourteenth
Amendment claim. See id. In situations where an officer could have actually
deliberated, courts are to apply the deliberate indifference standard to determine
whether the behavior was conscience shocking. See id. at 851.

       The district court viewed the facts of the present case and found that when
Officer Simonson made the initial decision to pursue the stolen vehicle, the
instantaneous judgment and reaction were fully justified. However, the district court
pointed out that Simonson’s instinctive decision to give chase slowly escalated into a
high-speed chase involving wrong-way travel, thereby increasing the potential for harm
to the general public. The district court observed:

             While Officer Simonson should be afforded deference for his initial
      decision, the contention that he did not have the time or ability to clearly
      assess the rising levels of potential danger in the situation should be
      subject to further analysis. At many points during the chase, Simonson
      had the opportunity to balance the law enforcement goal of apprehending
      Shannon for use of a stolen vehicle (a low-level penalty likely carrying no
      prison time) against the threat to the general public. Each new turn onto
      one-way streets and especially the accessing the freeway to drive on the
      wrong side of the median, presented a juncture for reassessment and
      evaluation of the escalating consequences of the chase. Rather than
      aborting the chase as the danger increased, the speed and number of
      pursuing vehicles also increased. . . . A review of Simonson’s conduct,
      in light of Lewis and other established precedent, reveals that genuine



                                          -8-
      issues of fact exist as to whether his actions “shocked the conscience” for
      the purpose of a substantive due process claim.

(Mem. Op. and Order at 18-19 (emphasis added).) On this basis, the district court
denied Simonson’s motion for summary judgment.

                                     II. Discussion

        We review a district court’s denial of summary judgment de novo and apply the
same standard as that which governed that court’s decision. See Collins v.
Bellinghausen, 153 F.3d 591, 595 (8th Cir. 1998). In determining whether an official
is entitled to qualified immunity, this court undertakes a three-part inquiry. First, has
the plaintiff alleged a violation of a constitutional right? Second, was the allegedly
violated right clearly established at the time of its violation? Finally, would a
reasonable official know or should the official have known that the actions at issue
violated that right? See Foulks v. Cole County, 991 F.2d 454, 456 (8th Cir. 1993);
Buckley v. Rogerson, 133 F.3d 1125, 1129 (8th Cir. 1998). If the plaintiff fails to
adequately allege a constitutional violation, this court need not consider whether the
law was clearly established or whether a reasonable officer would know or should have
known that the alleged conduct infringed on the plaintiff’s constitutional right.

        Upon analyzing each element of qualified immunity as it applies to this case, we
find Feist successfully alleged a constitutional violation, the law was clearly established
at the time, and Simonson should have known his actions were constitutionally suspect.
Thus, Simonson cannot invoke the protections of qualified immunity.

Constitutional Right

      As an initial matter, we reject Feist’s argument that the Lewis intent standard
does not apply to innocent bystanders. A myriad of courts have applied Lewis in


                                           -9-
situations where the plaintiff is an unsuspecting third party.5 We therefore conclude
that the Lewis intent standard applies regardless of whether a suspect or bystander is
hurt.

       Lewis makes it clear that an officer who unintentionally harms another while
performing discretionary functions should be shielded from liability if the officer could
not deliberate. On this basis, Simonson argues that it was error to deny him summary
judgment because Feist offered no evidence of Simonson’s intent to cause physical
harm or worsen appellee’s legal plight. We disagree with Simonson’s analysis.
Simonson’s opportunity for deliberation takes this case outside of the “malicious and
sadistic intent” standard articulated in Lewis and necessitates an inquiry into


      5
         See generally Childress v. City of Arapaho, 210 F.3d 1154, 1157-58 (10th Cir.
2000) (“The Lewis principles . . . apply whether the claimant is a police suspect or an
innocent victim.”); Claybrook v. Birchwell, 199 F.3d 350, 360 (6th Cir. 2000) (finding
the “malicious or sadistic intent” standard of Lewis to apply to innocent third party
harmed in police shoot-out); Davis v. Township of Hillside, 190 F.3d 167, 170 n.2 (3d
Cir. 1999) (discussing and rejecting the argument that Lewis should not apply to third
party harm); Brown v. Nationsbank Corp., 188 F.3d 579, 592 (5th Cir. 1999) (applying
Lewis to FBI operation that harmed innocent business-owners); Onossian v. Block, 175
F.3d 1169, 1171 (9th Cir. 1999) (“[I]f a police officer is justified in giving chase, that
justification insulates the officer from constitutional attack, irrespective of who might
be harmed or killed as a consequence of the chase.”); Schaefer v. Goch, 153 F.3d 793,
798 (7th Cir. 1998) (applying Lewis where woman was shot during heated standoff
between police and husband); Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir. 1998)
(using Lewis’ intent standard where innocent third party was killed during scuffle
between officer and suspect); Butera v. District of Columbia, 83 F. Supp. 2d 15, 19
(D.D.C. 1999) (discussing the intent standard in the context of third party harm and
choosing not to apply it only because the facts suggested an opportunity to deliberate);
Neal v. St. Louis County, 52 F. Supp. 2d 1090, 1094 (E.D. Mo. 1999) (applying Lewis
where third party officer was shot by another officer during drug bust); Gillyard v.
Stylios, No. Civ.A. 97-6555, 1998 WL 966010, at *5 (E.D. Pa. Dec. 23, 1998)
(utilizing Lewis intent standard where pedestrians were killed by collision involving
two officers).

                                          -10-
Simonson’s deliberate indifference to Feist’s civil rights. Because the deliberate
indifference standard is more appropriately applied to these facts, Feist need not bring
proof of Simonson’s intent.

       As the Lewis Court observed, the deliberate indifference standard is
appropriately applied “only when actual deliberation is practical.” Lewis, 523 U.S. at
851. Thus, “the critical question in determining the appropriate standard of culpability
is whether the circumstances allowed the state actors time to fully consider the potential
consequences of their conduct.” Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d
365, 373 (9th Cir. 1998). Because each case is fact-specific, it is difficult to analyze
all post-Lewis cases to formulate judicial agreement to guide our review. Suffice it to
say, we think Lewis is a sufficient beacon to affirm the findings of the district court.
A brief discussion, however, of a few Fourteenth Amendment cases is nonetheless
informative to our analysis.

       In a landmark case which preceded Lewis by thirty-six years, three deputy
sheriffs acting on a drug tip forcibly entered the plaintiff’s bedroom and began inquiring
about two morphine capsules sitting on the night stand. See Rochin v. California, 342
U.S. 165 (1952). The plaintiff swallowed the capsules and, after some struggle, was
promptly taken to the hospital. At the direction of one of the officers, a physician
pumped the plaintiff’s stomach and he regurgitated the capsules. The Supreme Court
found the officers’ behavior conscience shocking. The forcible entry, the struggle to
open the plaintiff’s mouth and remove its contents, and the involuntary extraction of the
capsules from his stomach were “methods too close to the rack and the screw to permit
of constitutional differentiation.” Rochin, 342 U.S. at 172. Similarly, in Rogers v. City
of Little Rock, 152 F.3d 790 (8th Cir. 1998), this court found a due process violation
when an on-duty patrol officer raped a woman after pulling her over for a minor traffic
violation. This court characterized the officer’s conduct as an “egregious . . . exercise
of power without any legitimate governmental objective.” Rogers, 152 F.3d at 797.


                                          -11-
        However, in Radecki v. Barela, 146 F.3d 1227 (10th Cir. 1998), the Tenth
Circuit found no conscience shocking behavior on the part of an officer who took cover
after a perpetrator wrestled away the officer’s weapon. The suspect thereafter shot and
killed a bystander who had helped separate the suspect and the officer at the officer’s
direction. In reversing the district court’s denial of summary judgment for the officer,
the court of appeals described the circumstances facing him as “a suddenly explosive
law enforcement situation” necessitating an “instantaneous judgment call.” Radecki,
146 F.3d at 1232. In another example, the district court in Neal v. St. Louis County,
52 F. Supp. 2d 1090 (E.D. Mo. 1999), granted summary judgment for an officer after
finding no Fourteenth Amendment violation in the officer’s actions during a drug bust
gone awry. The defendant had found his partner on the ground with the suspect
pointing a gun to his head. Upon hearing the defendant’s order to drop the weapon, the
suspect began firing shots. The defendant returned gunfire, and his partner was hit and
killed by one of his bullets. In finding the defendant had not violated his partner’s due
process rights, the court explained that “[a] police officer’s decision to use his weapon
when fired upon by a suspected drug dealer requires the type of instant judgment
described in Lewis.” Neal, 52 F. Supp. 2d at 1094.

       The case at bar falls somewhere between the extremes of Rochin and Rogers on
the one hand and Radecki and Neal on the other. That said, while the facts of this case
are of a different nature than those in Rochin and Rogers, the cumulation of events on
August 11, 1996, leading to Feist’s death create a factual issue as to whether Simonson
had a fair opportunity to deliberate. The chase lasted over six miles, spanning both
residential and commercial areas and passing a park and museum where pedestrians
were sure to be found. Simonson followed Shannon the wrong way down three
different roadways, all of which were known to carry a substantial amount of traffic.
For 1.2 miles, Shannon and Simonson traveled in the wrong direction on I-94 near its
intersection with I-35. This stretch of road is widely traveled, as it connects the two
primary thoroughfares in the Twin Cities. At the time of the accident, Simonson had
been on the force for eight years. We can assume he was familiar with the intersection

                                          -12-
of I-94 and I-35 and was aware that it is notoriously busy. Despite this, he insisted on
chasing Shannon the wrong way at high speeds, weaving in and out of traffic.
Simonson went so far as to travel the wrong way through a tunnel on I-94, and he
appeared ready to blast through another, more dangerous tunnel had the fatal accident
not occurred. Throughout the chase, Simonson had no reason to suspect Shannon was
guilty of anything other than the low-level felony of unauthorized use of a motor
vehicle. As the Supreme Court noted in Lewis, “[a] police officer deciding whether to
give chase must balance . . . the need to stop a suspect and show that flight from the
law is no way to freedom, and . . . the high-speed threat to everyone within stopping
range.” Lewis, 523 U.S. at 853. Simonson had ample time to deliberate and weigh
these considerations, and the evidence suggests he made a deliberative decision to
continue the chase and to be indifferent to the dangers obviously inherent in his
conduct.

       As the district court pointed out, the chase may have begun as an incident
requiring split second reactions. As time progressed, however, the chase graduated
from one requiring heated responses to one allowing conscious deliberation. Indeed,
Simonson was faced with “extended opportunities to do better,” yet he exhibited
“protracted failure even to care.” Id. The deliberate indifference standard is properly
applied, and a genuine issue of material fact exists as to whether Simonson was
deliberately indifferent to Feist’s Fourteenth Amendment rights.

Clearly Established Law

       In order for a right to be clearly established, “the contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Johnson-El v. Schoemehl, 878 F.2d 1043, 1048 (8th Cir. 1989)
(quotation omitted). If the law at the time of the official action is not clearly
established, we cannot hold the official responsible because he or she could not be
expected to anticipate legal liability or recognize at the time that the conduct is

                                          -13-
unlawful. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “This is not to say that
an official action is protected by qualified immunity unless the very action in question
has previously been held unlawful; but it is to say that in light of pre-existing law the
unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987)
(citation omitted). See also Johnson-El, 878 F.2d at 1049.

       This court employs a flexible standard in determining whether a right is clearly
established, requiring some factual correspondence with precedent and demanding that
government officials respect general, well-established principles of law. See J.H.H. v.
O’Hara, 878 F.2d 240, 243 (8th Cir. 1989). We look at the specific conduct about
which the plaintiff complains while reviewing statutory and case precedent. See
J.H.H., 878 F.2d at 243. “Whether the law is clearly established depends on what
would be apparent in each situation.” Johnson-El, 878 F.2d at 1049.

        Feist urges that at the time of the pursuit and collision, the law was well-
established that officers could be held liable for their behavior during a high-speed
chase. We agree. This circuit and others addressed the possibility of substantive due
process violations in connection with police pursuits well before August 11, 1996. See
Roach v. City of Fredericktown, 882 F.2d 294, 297 (8th Cir. 1989); Evans v. Avery,
100 F.3d 1033, 1038 (1st Cir. 1996); Webber v. Mefford, 43 F.3d 1340, 1344 (10th
Cir. 1994); Fagan v. City of Vineland, 22 F.3d 1296, 1308-09 (3d Cir. 1994); Temkin
v. Frederick County Comm’rs, 945 F.2d 716, 723 (4th Cir. 1991); Checki v. Webb,
785 F.2d 534, 538 (5th Cir. 1986). Although more frequently than not officers escaped
liability in these cases, the potential for liability nonetheless existed. Hence, the law
was clearly established at the time of its alleged violation.6


      6
       Simonson argues that his conduct during the chase was legal and in
conformance with Minnesota Statute § 169.03(3), which regulates emergency vehicles.
Section 169.03(3) states: “The driver of any authorized emergency vehicle, when
responding to any emergency call, may enter against the run of traffic on any one-way

                                          -14-
Reasonable Officer Would Recognize Violation

        Once it has been established that the alleged constitutional violation is supported
by clearly established law, a qualified immunity defense will ordinarily fail, since a
reasonable government actor should or would have known the law governing his
conduct was a constitutional principle supported by clearly established law. See
Buckley, 133 F.3d at 1131 (citing Harlow, 457 U.S. at 818-19). It is reliance on the
objective reasonableness of the officer’s conduct which serves to measure the officer’s
liability in instances of excessive disruption by the government. Only under
extraordinary circumstances where it is shown that the officer neither knew nor should
have known that the challenged actions violated a constitutional right may an officer
be entitled to immunity. See id. (citing Harlow, 457 U.S. at 819). Simonson can make
no such showing. In fact, Simonson testified at his deposition that he is aware of the
critical aspects of the Fourteenth Amendment and its specific limitations on police
activity. He admitted there was a “reasonable probability” that an accident would
result from the August 11 chase, and he understood that innocent bystanders injured in
a pursuit may claim they were denied their Fourteenth Amendment rights.

      Given the case law precedent existing at the time of the accident and Simonson’s
own admissions, we find that a reasonable officer in Simonson’s position would know
or should have known as a matter of law that his actions potentially violated the



street, or highway where there is authorized division of traffic, to facilitate traveling to
the area in which an emergency has been reported.” Minn. Stat. § 169.03(3) (1996).
We reject Simonson’s argument. As the Minnesota Supreme Court noted in Pletan v.
Gaines, 494 N.W.2d 38, 41 n.2 (Minn. 1992), the Motor Vehicle Code does not
address whether a pursuit should have been discontinued at some point after being
undertaken. It simply addresses the manner in which a police car can be driven in
response to emergencies.

                                           -15-
Fourteenth Amendment. As such, the district court’s dismissal of Simonson’s motion
for summary judgment on the ground of qualified immunity was appropriate.

                                   III. Conclusion

        The cumulation of events occurring on August 11, 1996, convinces this court that
this case is properly analyzed under the deliberate indifference standard of conscience
shocking behavior. Feist successfully alleged a violation of a constitutional right, the
law regarding due process violations in police chases was clearly established, and a
reasonable officer would or should have known Simonson’s conduct potentially
violated Feist’s rights. Therefore, qualified immunity is improper, and we AFFIRM the
district court’s denial of Simonson’s motion for summary judgment.
        A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -16-
