                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                              No. 99-20516


                            TAMMY GALLOWAY,

                                                     Plaintiff - Appellee,


                                    VERSUS


                  THE CITY OF HOUSTON TEXAS; ET AL,

                                                                Defendants,

                                J WHALEN

                                                      Defendant - Appellant.



           Appeal from the United States District Court
       For the Southern District of Texas, Houston Division
                             (H-98-CV-3395)
                             July 12, 2000


Before POLITZ, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*

      Appellant   Jimmy   Whalen,    a    Harris   County   Deputy   Sheriff,

appeals from the district court’s denial of summary judgment in

this 42 U.S.C. § 1983 civil rights case filed by Appellee Tammy


  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Galloway.    Galloway claims that she was shot by Officer Whalen in

violation of her Fourth and Fourteenth Amendment rights against

unreasonable     seizure   and   her   Fourteenth     Amendment    rights   to

substantive due process. Officer Whalen moved for summary judgment

asserting that he is qualifiedly immune from the claims and arguing

(1) that he did not violate Galloway’s Fourth Amendment rights both

because     no   seizure   occurred    and     because    his   actions   were

reasonable, and (2) that his actions did not violate Galloway’s

substantive due process rights as they were not shocking to the

conscience.

     Having fully considered the arguments of counsel as advanced

in briefs and at oral argument, and having carefully reviewed the

record on appeal, we conclude that there are genuine issues as to

material facts precluding Deputy Whalen’s entitlement to summary

judgment.        Accordingly,     we       AFFIRM   the   district    court’s

interlocutory judgment denying Deputy Whalen’s summary judgment

motion.




                                       2
EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting

in part:



     I concur in the majority’s decision to affirm the district

court’s     denial   of    summary    judgment      on   Tammy     Galloway’s

(“Galloway’s”) Fourth Amendment claim. There are genuine issues of

material fact precluding summary judgment for Deputy Whalen on that

claim. However, I believe that the district court erred in denying

Whalen     summary   judgment    on   Galloway’s     Fourteenth     Amendment

(substantive due process) claim.          Therefore, I dissent in part.

     The right to substantive due process is violated only by

government action that “can properly be characterized as arbitrary,

or conscience shocking, in a constitutional sense.”                 County of

Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.

2d 1043 (internal citation omitted).            Lewis, which dealt with the

substantive due process claim of a motorcycle passenger killed by

police in a high-speed automobile chase aimed at apprehending a

suspected     offender,    id.   at   837-38,       clarified     the   proper

application     of   the    “shocks       the   conscience”      standard   in

circumstances like those presented here.              Having discussed the

conflicting obligations and lack of time for reflection facing

police officers “on an occasion calling for fast action,” the Court

held that “when       unforeseen circumstances demand an officer’s

instant judgment, even precipitate recklessness fails to” shock the


                                      3
conscience.           Id. at 853.      Rather, in such circumstances “a purpose

to       cause    harm”    is    a   prerequisite         to   substantive    due   process

liability.            Id. at 854.

          It     is   clear     that   Whalen       was    presented   with    unforeseen

circumstances demanding instant judgment.                        At the conclusion of a

nighttime car chase lasting several minutes, Michael Galloway’s

(“Michael’s”) car was surrounded by police (on foot) in a wooded

area after it jumped the curb of a dead-end street.                          Whalen ran up

behind the vehicle as Michael attempted unsuccessfully to move it.

When Michael indicated that he was going to move in reverse, Whalen

reacted by firing five rounds toward the vehicle while running to

its side, hitting Galloway, the passenger.2                         Under Lewis, Whalen

is liable to Galloway only if he intended to cause harm.                            See id.

at 854.

          Galloway does not dispute that she must show that Whalen

intended to harm her.                Rather, she argues that she has made this

showing. I disagree. First, Galloway apparently did not allege in

her complaint that Whalen intentionally harmed her.                           Second, the


     2
     It is not disputed that Michael had the car in reverse and was
attempting to move backward at the time Whalen opened fire. The
police officers testified that Michael not only put the car in
reverse but actually began moving backward. Michael testified that
the car likely was in reverse and that he was revving the engine.
Tammy admitted that it was possible that Michael had tried to back
the vehicle and she had not been aware of it. Therefore, while it
is disputed whether the vehicle actually could or did move, it is
not disputed that Michael indicated an intent to move the vehicle
in reverse. This indication was sufficient to create an emergency
situation requiring Whalen’s instant judgment.

                                                4
district court found that there was no claim and no evidence that

Whalen intended to harm Galloway.   Third, while Galloway’s brief

purports to show the requisite intent-to-harm, it actually claims

only that Whalen acted “with total disregard” for Galloway’s

safety. Such disregard is not the equivalent of an intent to harm.

It is thus not surprising that Galloway failed to present the

requisite specific evidence showing that Whalen intended to harm

her. The district court therefore erred in denying Whalen’s motion

for summary judgment on Galloway’s Fourteenth Amendment claim. See

Fed. R. Civ. P. 56(e).




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