                               PRECEDENTIAL
        UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                           ______


                        No. 16-3892
                           ______


         LENA DAVENPORT, an adult individual

                              v.

 BOROUGH OF HOMESTEAD, a Municipal Corporation;
  CITY OF PITTSBURGH, a Municipal corporation; IAN
  STRANG, individually and in his official capacities as a
        Police Officer of the Borough of Homestead;
     JAMES ILGENFRITZ, individually and his official
capacities as a Police Officer of the Borough of Homestead;
   LOUIS SCHWEITZER, individually and in his official
   capacities as a Police Officer of the City of Pittsburgh;
STEPHEN MATAKOVICH, individually and in his official
   capacities as a Police Officer of the City of Pittsburgh;
    CALVIN KENNEDY, individually and in his official
   capacities as a Police Officer of the City of Pittsburgh;
    THOMAS GORECKI, individually and in his official
capacities as a Police Officer of the City of Pittsburgh, and;
NATHAN HARPER, Commander, in his official capacity as
         a Chief of Police of the City of Pittsburgh;
 JEFFREY DESIMONE, in his official capacity as Chief of
   Police of Borough of Homestead, and; IGOR BOYKO,
          individually and in his official capacity
        of a Police Officer of the City of Pittsburgh

          Louis Schweitzer; Stephen Matakovich;
            Calvin Kennedy; Thomas Gorecki,
                         Appellants
                          ______


      On Appeal from the United States District Court
         for the Western District of Pennsylvania
              (W.D. Pa. No. 2-13-cv-00250)
       District Judge: Honorable David S. Cercone
                          ______


                  Argued: May 24, 2017
Before: HARDIMAN, ROTH, and FISHER, Circuit Judges.


            (Opinion Filed: August 29, 2017)


Bryan Campbell
Law Offices of Bryan Campbell
310 Grant Street, Suite 2620
Pittsburgh, PA 15219

Allison N. Genard
Marshall Dennehey Warner Coleman & Goggin
600 Grant Street
2900 U.S. Steel Tower
Pittsburgh, PA 15219



                             2
John J. Hare
Shane Haselbarth [ARGUED]
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street, Suite 2300
Philadelphia, PA 19103
      Counsel for Appellants

J. Kerrington Lewis, Sr. [ARGUED]
Lewis Lewis & Reilly
1040 Fifth Avenue
Pittsburgh, PA 15219
      Counsel for Appellee



                           ______


                OPINION OF THE COURT
                           ______



FISHER, Circuit Judge.
       On an early Sunday morning in January 2013, Lena
Davenport was riding in the front passenger seat of a vehicle
driven by her son Donald Burris, Jr. After running a red light
and refusing to pull over, Burris led police officers on a
nearly five-mile low speed pursuit into the City of Pittsburgh.
As the pursuit entered an area with high pedestrian traffic,
City of Pittsburgh Police Officers Louis Schweitzer, Stephen




                               3
Matakovich, Calvin Kennedy, and Thomas Gorecki each
opened fire on Burris’s vehicle. Davenport was struck by one
of the officers’ bullets. She filed this suit under 42 U.S.C. §
1983 against the officers and others alleging, inter alia, that
the officers used excessive force in violation of both the
Fourth Amendment and the Fourteenth Amendment’s Due
Process Clause. The District Court granted summary
judgment on the basis of qualified immunity in favor of many
of the defendants but denied it as to Schweitzer, Matakovich,
Kennedy, and Gorecki, finding that their alleged conduct
violated clearly established law. We will dismiss the appeal in
part as to Gorecki and reverse in part as to Schweitzer,
Matakovich, and Kennedy.
                               I
        At about 1:38 a.m. on Sunday, January 13, 2013,
Donald Burris, Jr. ran a red light in Homestead, Pennsylvania.
Burris’s mother, Lena Davenport, was the only passenger in
his car. When a Homestead police officer attempted to stop
the car, Burris did not comply. Instead, a pursuit began,
heading into the City of Pittsburgh. As Burris entered
Pittsburgh’s South Side neighborhood on East Carson Street,
several Pittsburgh police officers joined the pursuit. About
1:42 a.m., as the pursuit reached a busy area, the Sergeant of
the Pittsburgh Police Department called it off.
       Despite the Sergeant’s orders, officers deployed spike-
strips near the intersection of East Carson Street and 24th
Street. It is undisputed that until reaching the 24th Street
intersection, the pursuit did not jeopardize the safety of other
motorists or pedestrians. However, in an attempt to avoid the
spike-strips, Burris swerved between East Carson Street’s
inbound and outbound lanes.
       As these events transpired, Officers Schweitzer,



                               4
Matakovich, Kennedy, and Gorecki were working approved
off-duty security jobs at bars on East Carson Street. They
heard about the pursuit through police radio communications.
        Near the 17th Street intersection, Schweitzer was the
first to shoot at Burris’s car, opening fire after observing the
vehicle swerve between lanes of traffic and drive toward him.
He fired at the front of the vehicle three times and once more
at the vehicle’s rear as it passed his position. At some point
near this intersection, a bullet grazed a pedestrian’s back.
       Between the 16th and 15th Street intersections, after
attempting to clear the street of pedestrians, Matakovich
looked up and saw Burris’s car heading toward him from the
opposite lane. He shot at the vehicle four times and claims he
jumped out of the way to avoid being struck. Kennedy, who
was standing near Matakovich, fired once at the vehicle.
Burris again swerved between lanes and, upon reaching the
15th Street intersection, side-swiped a parked car.
       As the pursuit approached the 14th Street intersection,
Burris continued to swerve, hitting a car in the outbound lane
and then returning to the inbound lane. Near the 13th Street
intersection, at about 1:44 a.m., the pursuit ended when Burris
collided with a taxicab. At or around the same time, Gorecki
fired two shots directly into the driver compartment of the
vehicle. The parties dispute whether Gorecki fired before or
after the final collision. The taxicab’s dash-camera footage
shows Gorecki’s conduct, but it is not clear from the video
when he actually discharged his firearm. Minutes later, at
1:47 a.m, paramedics arrived. They found Davenport on the
floor of the vehicle’s passenger compartment, having
sustained a single gunshot wound near her right eye. It is
unclear which officer’s bullet actually struck Davenport.




                               5
        At no time did the pursuit exceed forty-five miles per
hour. Additionally, a forensic expert’s evaluation of the
vehicle’s bullet holes indicates that one bullet was fired
directly into the passenger compartment and another was
fired after the vehicle’s airbags deployed. Importantly, it is
unclear whether the airbags deployed before the taxicab
collision.
        Relevant to this appeal, Davenport brought suit under
42 U.S.C. § 1983 alleging that Schweitzer, Matakovich,
Kennedy, and Gorecki violated her Fourth Amendment right
to be free from excessive force and her Fourteenth
Amendment right to due process. The officers moved for
summary judgment on the basis of qualified immunity. The
District Court identified two factual disputes that, in its view,
required sending the claims against those officers to trial. The
first was whether the officers intentionally or indiscriminately
fired into the passenger compartment of Burris’s vehicle with
knowledge of Davenport’s presence therein. And the second
was whether the officers fired into the vehicle even though it
posed little or no danger to themselves or others. A
reasonable jury, the court held, could determine that, on
January 13, 2013, the officers violated clearly established
law. Davenport v. Borough of Homestead, 2016 WL
5661733, at *19-22 (W.D. Pa. Sept. 30, 2016). The four
officers appealed.
                               II
        The District Court had jurisdiction under 28 U.S.C. §
1331. The collateral order doctrine provides us with
jurisdiction to review the District Court’s denial of the
officers’ claims of qualified immunity under 28 U.S.C. §
1291, but only “to the extent that it turns on an issue of law.”
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).




                               6
        Insofar as the District Court’s order pertains to
Schweitzer, Matakovich, and Kennedy, “we possess
jurisdiction to review whether the set of facts identified by the
district court is sufficient to establish a violation of a clearly
established constitutional right.” Dougherty v. Sch. Dist. of
Phila., 772 F.3d 979, 986 (3d Cir. 2014) (internal quotation
marks omitted). However, we lack jurisdiction to review the
order insofar as it pertains to Gorecki because he challenges
the District Court’s determination that the “pretrial record sets
forth a ‘genuine’ issue of fact” for the jury. Johnson v. Jones,
515 U.S. 304, 319-20 (1995); see also Monteiro v. City of
Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006) (“[W]hen
qualified immunity depends on disputed issues of fact, those
issues must be determined by the jury.”). Relying on the
taxicab’s dash-camera footage, Gorecki argues that the
District Court should have concluded that no reasonable jury
could find that he discharged his firearm into Burris’s vehicle
after the pursuit ended. Appellants’ Br. 17. And Gorecki’s
legal challenges assume the absence of this otherwise
disputed fact. Because we are unable to address the factual
challenge about when Gorecki discharged his firearm at
Burris’s vehicle at this stage of the proceedings, we are
precluded from addressing the derivative legal challenges.
See Johnson, 515 U.S. at 317 (“[A]n interlocutory appeal
concerning this kind of issue in a sense makes unwise use of
appellate courts’ time, by forcing them to decide in the
context of a less developed record, an issue very similar to the
one they may well decide anyway later, on a record that will
permit a better decision.”).
      To the extent we have jurisdiction, we exercise plenary
review over an appeal from a denial of summary judgment
based on a lack of qualified immunity. Zaloga v. Borough of
Moosic, 841 F.3d 170, 174 n.3 (3d Cir. 2016). We will



                                7
reverse if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). To determine if there is a genuine
dispute of material fact, we “view the underlying facts and all
reasonable inferences therefrom in the light most favorable to
the party opposing the motion[.]” Dougherty, 772 F.3d at 986
(internal quotation marks omitted).
                              III
       Before reaching the merits of Schweitzer, Matakovich,
and Kennedy’s qualified immunity defense, we must first
address an error committed by the District Court—the court’s
independent analysis of Davenport’s Fourteenth Amendment
claims. See Davenport, 2016 WL 5661733, at *14-15. The
Supreme Court has instructed that “all claims that law
enforcement officers have used excessive force—deadly or
not—in the course of an arrest, investigatory stop, or other
‘seizure’ of a free citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard, rather than
under a ‘substantive due process’ approach.” Graham v.
Connor, 490 U.S. 386, 395 (1989). Therefore, an independent
substantive due process analysis of an excessive force claim
is inappropriate where, as here, the plaintiff’s claim is
covered by the Fourth Amendment. See County of
Sacramento v. Lewis, 523 U.S. 833, 843 (1998).
       The Supreme Court has “express[ed] no view” on
whether a passenger in Davenport’s position may recover
under a Fourth Amendment theory. Plumhoff v. Rickard, 134
S. Ct. 2012, 2022 n.4 (2014). And the federal appellate courts
appear divided on the issue. Compare, e.g., Lytle v. Bexar
Cty., 560 F.3d 404, 410 (5th Cir. 2009) (suggesting yes),
Vaughan v. Cox, 343 F.3d 1323, 1328-29 (11th Cir. 2003)
(same), Fisher v. City of Memphis, 234 F.3d 312, 318-19 (6th




                              8
Cir. 2000) (same), and Pittman v. Nelms, 87 F.3d 116, 120
(4th Cir. 1996) (same), with, e.g., Medeiros v. O’Connell, 150
F.3d 164, 169 (2d Cir. 1998) (suggesting no in the context of
a hostage situation), and Landol-Rivera v. Cruz Cosme, 906
F.2d 791, 794-96 (1st Cir. 1990) (same). See also Carabajal
v. City of Cheyenne, 847 F.3d 1203, 1212 (10th Cir. 2017)
(declining to address the issue and resolving the case on other
grounds). Nevertheless, the majority of circuits have
suggested that a passenger in Davenport’s position may seek
relief under the Fourth Amendment; those circuits that have
suggested otherwise reached their decisions on this issue
before the Supreme Court decided Brendlin v. California, 551
U.S. 249 (2007).
        In Brendlin, the Supreme Court held that in
intentionally stopping a vehicle, an officer subjects not only
the driver, but also the vehicle’s passengers to a Fourth
Amendment seizure. 551 U.S. at 254-56. It also made clear
that an officer’s knowledge of a passenger’s presence in the
vehicle is not dispositive because “an unintended person may
be the object of the detention, so long as the detention is
willful and not merely the consequence of an unknowing act.”
Id. at 254 (alterations and internal quotation marks omitted).
And in Brower v. County of Inyo, the Supreme Court
cautioned courts not to “draw too fine a line” in “determining
whether the means that terminates the freedom of movement
is the very means that the government intended.” 489 U.S.
593, 598 (1989). Accordingly, even if the officers’ intended
application of force would have only incidentally seized
Davenport, because her freedom of movement was terminated
“by the very instrumentality set in motion or put in place in
order to achieve” Burris’s and her detention, id. at 599, there
is no set of facts that precludes a finding of a Fourth
Amendment seizure. Today we join the majority of circuits in



                              9
holding that a passenger shot by an officer during the course
of a vehicular pursuit may seek relief under the Fourth
Amendment. Because Davenport may do so, the Fourth
Amendment, “not the more generalized notion of ‘substantive
due process,’ must be the guide for analyzing these claims.”
Graham, 490 U.S. at 395. Consequently, the District Court
erred in independently analyzing Davenport’s Fourth and
Fourteenth Amendment claims.
                              IV
       “The doctrine of qualified immunity shields officials
from civil liability so long as their conduct ‘does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Mullenix v. Luna,
136 S. Ct. 305, 308 (2015) (per curiam) (quoting Pearson v.
Callahan, 555 U.S. 223, 231 (2009)). In resolving questions
of qualified immunity, we conduct a two-part inquiry. First,
“[t]aken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct
violated a constitutional right?” Saucier v. Katz, 533 U.S.
194, 201 (2001). Second, we consider whether, in light of the
specific context of the case, “the right was clearly
established.” Id. Although we need not address these prongs
in any particular order, Pearson, 555 U.S. at 236, we exercise
our discretion to address both “[b]ecause we believe this case
will clarify and elaborate upon our prior jurisprudence in
important and necessary ways.” Williams v. Sec’y Pa. Dep’t
of Corr., 848 F.3d 549, 558 (3d Cir. 2017) (internal quotation
marks omitted).
                              A
      We first consider whether Schweitzer, Matakovich,
and Kennedy’s alleged conduct violated the rights secured to
Davenport by the Fourth Amendment. The Fourth



                              10
Amendment requires that a seizure be objectively reasonable.
Graham, 490 U.S at 396-97. Determining objective
reasonableness involves “a careful balancing of the nature
and quality of the intrusion on the individual’s Fourth
Amendment interests against the countervailing governmental
interests at stake.” Id. at 396 (internal quotation marks
omitted). The government has an interest in ensuring public
safety, and a fleeing vehicle may pose a threat to that interest.
Scott v. Harris, 550 U.S. 372, 383 (2007). However, because
our analysis “requires careful attention to the facts and
circumstances of each particular case,” Graham, 490 U.S. at
396, the fact that a vehicle is in flight does not necessarily
render an officer’s use of deadly force objectively reasonable.
The question is “whether the totality of the circumstances
justified a particular sort of . . . seizure.” Tennessee v. Garner,
471 U.S. 1, 8-9 (1985). We evaluate each officer’s conduct
“from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight,” understanding
that “officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.” Graham, 490 U.S. at 396-97.
       Based on Davenport’s version of facts, the District
Court concluded that a reasonable jury could find that the
officers intentionally shot at Davenport and that the pursuit
posed no serious threat of immediate harm to others. This was
error, as these assertions are “blatantly contradicted by the
record.” Scott, 550 U.S. at 380. First, video evidence
indisputably shows a heavy pedestrian presence during the
course of the pursuit. And second, throughout the pursuit
Burris continuously swerved between inbound and outbound
lanes, which ultimately led to his colliding with three other
vehicles. Considering the serious threat of immediate harm to



                                11
others, no reasonable jury could conclude that the officers
fired at the vehicle for any reason other than to eliminate that
threat.
       Schweitzer shot at the vehicle with the knowledge that
Burris refused to yield to officers’ continued pursuit and
swerved between lanes in an area with high pedestrian traffic.
Matakovich and Kennedy shot at the vehicle with the
additional knowledge that Burris continued the dangerous
vehicular pursuit despite sustaining police fire. Given the
serious threat of immediate harm to East Carson Street’s
many pedestrians, even if the officers knew that a passenger
was in the vehicle, their conduct was objectively reasonable
as a matter of law. See id. (In “weighing the perhaps lesser
probability of injuring or killing numerous bystanders against
the perhaps larger probability of injuring or killing a single
person,” courts must “take into account . . . the number of
lives at risk.”). As such, Schweitzer, Matakovich, and
Kennedy are entitled to summary judgment because they did
not violate Davenport’s Fourth Amendment rights.
                               B
        There is an additional and distinct basis on which we
must reverse the District Court’s denial of qualified immunity
to Schweitzer, Matakovich, and Kennedy—their alleged
conduct did not violate clearly established law. The crux of
the “clearly established” analysis “is whether officers have
‘fair notice’ that they are acting unconstitutionally.” Mullenix,
136 S. Ct. at 314. In other words, an officer is not entitled to
qualified immunity if “at the time of the challenged conduct,
the contours of [the] right [were] sufficiently clear that every
reasonable official would have understood that what he [was]
doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011) (alteration and internal quotation marks omitted).




                               12
“We do not require a case directly on point, but existing
precedent must have placed the statutory or constitutional
question beyond debate.” Id. “The dispositive question is
whether the violative nature of particular conduct is clearly
established. This 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 (citation and internal
quotation marks omitted). Accordingly, the specific question
presented by this case is whether, on January 13, 2013, the
law clearly established that an officer who, in an attempt to
eliminate the serious threat of immediate harm to others
created by a vehicle’s flight shoots the vehicle’s passenger,
violates that passenger’s rights under the Fourth Amendment.
We hold that it did not.
        The District Court concluded that Tennessee v. Garner
clearly established that the officers’ alleged conduct was
unlawful. See Davenport, 2016 WL 5661733, at *20. Garner
held that a “police officer may not seize an unarmed,
nondangerous suspect by shooting him dead.” 471 U.S. at 11.
The Supreme Court, however, has applied Garner’s “general”
test for excessive force in only the “obvious” case. Brosseau
v. Haugen, 543 U.S. 194, 199 (2004) (per curiam). And
courts have found “obvious” cases only in the absence of a
serious threat of immediate harm to others. See, e.g., Lytle,
560 F.3d at 417 (finding an obvious case where an officer
shot a passenger in a vehicle without a sufficient threat of
harm to others); Adams v. Speers, 473 F.3d 989, 991-94 (9th
Cir. 2007) (finding same where, without a sufficient threat of
harm to others, an officer shot a fleeing suspect on the
highway and by using deadly force actually created a serious
hazard for himself and the suspect); Smith v. Cupp, 430 F.3d
766, 773, 776 (6th Cir. 2005) (finding same where, without a
sufficient threat of harm to others, an officer shot an



                              13
intoxicated suspect who took control of a patrol car in a
parking lot); Vaughan, 343 F.3d at 1331 (finding same where,
without a sufficient threat of harm to others, an officer shot
suspects who were merely evading arrest).
       In concluding that this was such an “obvious” case, the
District Court improperly ignored the serious threat of
immediate harm to others posed by Burris’s flight. The
District Court justified limiting its analysis to the threat of
harm posed by Davenport’s conduct by citing Plumhoff v.
Rickard for the proposition that “Fourth Amendment rights
are personal rights that may not be vicariously asserted.”
Davenport, 2016 WL 5661733, at *21. But acknowledging
the threat of harm posed by Burris’s flight neither enhances
nor diminishes Davenport’s Fourth Amendment rights.
Rather, as discussed above, see Part IV-A, supra, it is a
necessary factor of our “objective reasonableness” analysis.
Given the serious threat of immediate harm to others that
Schweitzer, Matakovich, and Kennedy sought to eliminate,
Garner does not clearly establish their alleged conduct
violated Davenport’s constitutional rights.
       The Supreme Court has never addressed the rights of a
passenger involved in a dangerous vehicular pursuit. And
while, in the absence of applicable Supreme Court precedent,
we may consider “a robust consensus of cases of persuasive
authority,” al-Kidd, 563 U.S. at 742 (internal quotation marks
omitted), Davenport cites no precedent from this Circuit, or
any other, that is on point. Given this near absence of cases,
we cannot conclude that Schweitzer, Matakovich, and
Kennedy acted in a plainly incompetent manner when they
attempted to address the serious threat of immediate harm to
others posed by Burris’s flight. See Ziglar v. Abbasi, 137 S.
Ct. 1843, 1867 (2017) (“[Q]ualified immunity protects all but
the plainly incompetent or those who knowingly violate the



                              14
law.” (internal quotation marks omitted)).
                        *      *      *
        For the reasons stated, the judgment of the District
Court will be reversed in part and the case remanded with
instructions to enter summary judgment on the basis of
qualified immunity in favor of Schweitzer, Matakovich, and
Kennedy. The appeal will be dismissed in part for lack of
jurisdiction with respect to Gorecki.




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