                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 17-1591
                  _____________

MICHAEL SAUERS, Individually and as Administrator
    of the Estate of Carola R. Sauers, deceased

                         v.

        BOROUGH OF NESQUEHONING;
        CHIEF OF POLICE SEAN SMITH;
         OFFICER STEPHEN HOMANKO

             Officer Stephen Homanko,
                       Appellant
                ________________

   On Appeal from the United States District Court
       for the Middle District of Pennsylvania
              (D.C. No. 3-16-cv-00811)
      District Judge: Hon. James M. Munley
                 _______________

                      Argued
                    June 4, 2018
   Before: AMBRO, JORDAN, and VANASKIE, Circuit
                     Judges

               (Opinion Filed: October 2, 2018)
                      _______________

Joshua M. Autry [ARGUED]
Frank J. Lavery, Jr.
Lavery Faherty Patterson
225 Market Street
Suite 304, P.O. Box 1245
Harrisburg, PA 17108
      Counsel for Appellant

Michael B. Kaspszyk [ARGUED]
Merwine Hanyon & Kaspszyk
2642 Route 940
Pocono Summit, PA 18346
     Counsel for Appellee
                   _______________

                 OPINION OF THE COURT
                     _______________

JORDAN, Circuit Judge.

       This case arises out of a tragic car accident that injured
Michael Sauers and killed his wife. The crash resulted from
the criminally reckless driving of police officer Stephen
Homanko. Sauers later brought this suit against Homanko
and others pursuant to 42 U.S.C. § 1983 and state law for,
among other things, violating his and his wife’s Fourteenth
Amendment substantive due process rights. Homanko moved




                               2
to dismiss the § 1983 claim for failure to state a claim and, in
the alternative, he sought qualified immunity. The District
Court denied the motion and Homanko appealed. Because
we conclude that it was not clearly established at the time of
the crash that Homanko’s conduct, as alleged in the
complaint, could give rise to constitutional liability under the
Fourteenth Amendment, we will vacate the District Court’s
denial of qualified immunity. We hope, however, to establish
the law clearly now.

I.     Background1

       On May 12, 2014, Sauers and his wife were driving
southbound on Route 209 in the Borough of Nesquehoning,
Pennsylvania. At the same time, Homanko was on patrol on
Route 209 and traveling in the same direction when he
observed the driver of a yellow Dodge Neon commit a
summary traffic offense in the northbound lane. Based on
that observation alone, he turned around and began to pursue
the Dodge. At some point he took the time to radio ahead to
the police in the neighboring borough to request that officers
there pull the Dodge over when it reached their jurisdiction.2

       1
          When reviewing an appeal from a district court’s
ruling on a motion to dismiss, we accept allegations in the
complaint as true and draw all plausible inferences from those
allegations in favor of the plaintiff. Kedra v. Schroeter, 876
F.3d 424, 432, 434 (3d Cir. 2017).
       2
         When the car arrived in the neighboring jurisdiction,
the officers stopped it as requested but did not charge the
driver with a traffic violation or any other crime.




                               3
       Homanko then decided that catching the Dodge
himself was important enough to warrant a chase at speeds of
over 100 miles-per-hour. Several members of the public
observed him driving recklessly.        During the pursuit,
Homanko lost control of his police car while going around a
curve. His car began to spin, crossed the center line into
southbound traffic, and crashed into Sauers’s car. The
accident seriously injured Sauers and killed his wife.
Homanko was subsequently charged and pled guilty to
vehicular homicide, which requires proof beyond a
reasonable doubt of reckless or grossly negligent driving, and
reckless endangerment.3

       The criminal case was not the end of Homanko’s legal
trouble. Sauers – individually and as the administrator of his
wife’s estate – initiated the present lawsuit against him,
setting forth federal and state law causes of action, including
a claim under § 1983.4 Sauers premised his § 1983 claim on
a “state-created danger” theory of liability. Homanko moved

      3
          As recounted in his briefing, Homanko additionally
pled guilty to a number of minor traffic offenses.
      4
          Sauers also sued the Borough of Nesquehoning and
the Nesquehoning Police Chief. Those parties filed a motion
to dismiss the complaint, separately from Homanko. The
District Court granted the motion as to the police chief and
granted it in part and denied it in part as to the Borough.
Those rulings have not been appealed. Accordingly, this
appeal addresses only the District Court’s denial of
Homanko’s request for qualified immunity.




                              4
to dismiss only that claim. He argued that the complaint did
not plausibly allege a state-created danger claim and, in the
alternative, that he was entitled to qualified immunity because
it was not clearly established in May 2014 that negligent or
reckless police driving could give rise to a constitutional
cause of action. The District Court denied Homanko’s
motion as to both liability and qualified immunity.

       As to liability, the Court determined that the complaint
adequately pled a state-created danger claim, a determination
that Homanko does not now appeal. The Court further
concluded that the law was clearly established in May 2014
that “any reasonable officer would have known that pursuing
a potential traffic offender in excess of 100 miles-per-hour
under the[] circumstances [alleged in the complaint] gives
rise to a state-created danger claim.” (App. at 21.) That
determination is the subject of this appeal.

II.   Discussion5

       Qualified immunity protects government officials from
civil damages for conduct that “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) (citation omitted). Thus, courts

      5
          The District Court had jurisdiction under 28 U.S.C.
§§ 1331, 1343, and 1367. We have jurisdiction pursuant to
28 U.S.C. § 1291 over interlocutory appeals raising a purely
legal challenge to a denial of qualified immunity. Mirabella
v. Villard, 853 F.3d 641, 648 (3d Cir. 2017). Because this
appeal raises only a question of law, we have jurisdiction and
our review is plenary. Id.




                              5
assessing a claim of qualified immunity must answer two
questions. One is whether the defendant’s conduct violated a
statutory or constitutional right. The other is whether the
right at issue was clearly established when the conduct took
place. We have discretion to address either inquiry first. Id.
at 236.

       In its recent decisions addressing qualified immunity,
the Supreme Court has “repeatedly told courts … not to
define clearly established law at a high level of generality.”
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (citation
omitted). The question in this case therefore cannot be
framed simply in terms of recklessness generally.
Homanko’s request for qualified immunity must be assessed
within the context of the case law that has developed from
accidents caused by high-speed police pursuits that injure
third parties.

      A.     Sauers’s Complaint Pleads a Plausible State-
             Created Danger Claim.

       Homanko has not appealed the District Court’s
determination that the complaint adequately describes a
constitutional violation, and for good reason. The pleadings
describe a police officer driving at speeds over 100 miles-per-
hour on a two-way, undivided road to catch someone who had
committed a minor traffic infraction.          There was no
emergency at all, and Homanko likely did the most that was
warranted when he radioed the police in a neighboring
jurisdiction to stop the offender. His hyper-aggressive
decision to chase the Dodge cannot be justified. Nonetheless,
to determine whether his conduct violated a clearly




                              6
established constitutional right, we must take the time to
define that right and explain why the conduct violated it.

        Defining a right at the appropriate level of specificity
is often the most critical aspect of a qualified immunity
analysis. In undertaking that task, we are guided by the
Supreme Court’s repeated instructions to do so in light of the
particular facts of the case at hand. See Kisela, 138 S. Ct. at
1152; White v. Pauly, 137 S. Ct. 548, 552 (2017); Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015). We accordingly define the
right at issue here as one not to be injured or killed as a result
of a police officer’s reckless pursuit of an individual
suspected of a summary traffic offense when there is no
pending emergency and when the suspect is not actively
fleeing the police.

        As earlier noted, Sauers’s complaint relies on the state-
created danger theory of liability to establish his right to be
free from what Homanko did. That doctrine embodies the
principle that the government has an obligation under the
Fourteenth Amendment’s Due Process Clause “to protect
individuals against dangers that the government itself
creates.” Haberle v. Troxell, 885 F.3d 170, 176 (3d Cir.
2018). Establishing a claim under that doctrine requires a
plaintiff to plead four elements:

       (1) [t]he harm ultimately            caused    was
       foreseeable and fairly direct;

       (2) a state actor acted with a degree of
       culpability that shocks the conscience;




                                7
       (3) a relationship between the state and the
       plaintiff existed such that the plaintiff was a
       foreseeable victim of the defendant’s acts, or a
       member of a discrete class of persons subjected
       to the potential harm brought about by the
       state’s actions, as opposed to a member of the
       public in general; and

       (4) a state actor affirmatively used his or her
       authority in a way that created a danger to the
       citizen or that rendered the citizen more
       vulnerable to danger than had the state not acted
       at all.

Id. at 176-77 (citation omitted). It is clear, we think, that the
complaint adequately alleges elements one, three, and four.
Whether Homanko’s alleged conduct shocks the conscience is
a closer call.

       The level of culpability required “to shock the
contemporary conscience” falls along a spectrum dictated by
the circumstances of each case. County of Sacramento v.
Lewis, 523 U.S. 833, 847-49 & n.8 (1998). Our case law
establishes three distinct categories of culpability depending
on how much time a police officer has to make a decision.
Haberle, 885 F.3d at 177. In one category are actions taken
in a “hyperpressurized environment[.]” Id. (citation omitted).
They will not be held to shock the conscience unless the
officer has “an intent to cause harm.” Id. (citation omitted).
Next are actions taken within a time frame that allows an
officer to engage in “hurried deliberation.” Id. (citation
omitted). When those actions “reveal a conscious disregard
of a great risk of serious harm” they will be sufficient to




                               8
shock the conscience.6 Id. (quotation marks and citation
omitted).     Finally, actions undertaken with “unhurried
judgments,” with time for “careful deliberation,” will be held
to shock the conscience if they are “done with deliberate
indifference.” Id. (citation omitted). Our case law is clear
that this “shocks the conscience” framework for analysis
applies to police-pursuit cases. Brown v. Pa. Dep’t of Health
& Emergency Med. Servs. Training Inst., 318 F.3d 473, 480
(3d Cir. 2003); cf. Kedra v. Schroeter, 876 F.3d 424, 432, 448
(3d Cir. 2017) (relying on pre-2014 case law to conclude that
the state-created danger doctrine was a clearly established
theory of liability in September 2014).

       The District Court rightly interpreted the complaint to
allege that Homanko “had at least some time to deliberate”
before deciding whether and how to pursue the traffic
offender. (App. at 16.) That places the fact-pattern in the
second category of culpability, requiring inferences or
allegations of a conscious disregard of a great risk of serious
harm. That conclusion is supported by the allegation that

       6
           The District Court identified “gross negligence or
arbitrariness” as the level of culpability required to shock the
conscience when an officer has time only for hurried
deliberation. (App. at 11-12.) We have described the “gross
negligence or arbitrariness” standard, however, as one “that
provides little guidance.” Sanford v. Stiles, 456 F.3d 298, 310
(3d Cir. 2006). We have been clear in recent years that the
level of culpability required to shock the conscience when an
officer has time for hurried deliberation is “a conscious
disregard of ‘a great risk of serious harm[.]’” Haberle, 885
F.3d at 177 (quoting Sanford, 456 F.3d at 310); accord
Kedra, 876 F.3d at 437.




                               9
Homanko, at some point, had time to call the neighboring
police department as he was contemplating his actions. It is
further supported by an obvious inference from the nature of
the Dodge driver’s mild provocation:         there was no
emergency arising from a simple traffic violation. The
liability question thus becomes whether deciding to pursue a
potential summary traffic offender at speeds of over 100
miles-per-hour, after radioing for assistance from the
neighboring jurisdiction where the potential offender was
headed, demonstrates a conscious disregard of a great risk of
serious harm. We have no difficulty in concluding that it
does.

        Engaging in a high-speed pursuit on public roadways
at speeds of over 100 miles-per-hour threatens “all those
within … range [of the pursuit], be they suspects, their
passengers, other drivers, or bystanders.” Lewis, 523 U.S. at
853. Every police officer understands that risk. That is why
we expect our law enforcement personnel to engage in such
pursuits only when “reasonable justification” exists. Id. at
846. Responding to a true emergency may be a reasonable
justification. Pursuing an actively fleeing suspect who is
endangering the public welfare may also be a reasonable
justification. But attempting to catch someone who has
committed a minor traffic offense, especially when other law
enforcement officials have been alerted to stop the offender,
is not a reasonable justification for driving “careless[ly]” and
at “speed[s] in excess of 100 mph.” (App. at 31-32.)
Homanko did not have to make a split-second decision “in
haste” and “under pressure.” Lewis, 523 U.S. at 853 (citation
omitted). He could have let the officers in the neighboring
jurisdiction handle the routine traffic stop as, in fact, they did.




                                10
Instead, he chose to engage in a reckless and unjustifiable
pursuit, with tragic consequences.

       In sum, Sauers adequately pled that Homanko’s
conduct was conscience-shocking under our state-created
danger framework. The complaint therefore contains a
plausible claim that Homanko violated Sauers’s and his
wife’s Fourteenth Amendment substantive due process rights.

       B.     The Right at Issue Was Not Clearly
              Established In May 2014.

       The existence of a substantive due process claim
having been established, we now turn to the central issue of
this appeal, namely whether Homanko had fair warning that
he could be subject to constitutional liability for actions taken
in conscious disregard of a great risk of harm during the
course of a police pursuit. We conclude that he did not. At
the time of the crash in May 2014, the state of the law was
such that police officers may have understood they could be
exposed to constitutional liability for actions taken during a
police pursuit only when they had an intent to harm. Thus, it
was not at that time clearly established that Homanko’s
actions could violate the substantive due process rights of
Sauers and his wife.

       A right is clearly established when the law is
“sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Reichle
v. Howards, 566 U.S. 658, 664 (2012) (internal quotation
marks, citation, and alteration omitted). That does not require
a prior precedent with indistinguishable facts, “but existing
precedent must have placed the statutory or constitutional




                               11
question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011). Existing precedent is sufficient to place a
constitutional question beyond debate and to defeat qualified
immunity only if it is “controlling authority in [the relevant]
jurisdiction,” Wilson v. Layne, 526 U.S. 603, 617 (1999), or if
“a ‘robust consensus of cases of persuasive authority’ in the
Court of Appeals” has settled the question, Mammaro v. N.J.
Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir.
2016) (quoting Taylor v. Barkes, 135 S. Ct. 2042, 2044
(2015)).

        When qualified immunity is at issue, context matters.
The “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 (quoting Brosseau v. Haugen, 543
U.S. 194, 198 (2004) (per curiam)). When courts fail to take
into consideration the “particularized” facts of a case, they
permit plaintiffs “to convert the rule of qualified immunity …
into a rule of virtually unqualified liability simply by alleging
violation of extremely abstract rights.” White, 137 S. Ct. at
552 (alteration in original) (quoting Anderson v. Creighton,
483 U.S. 635, 639-40 (1987)).

        There is, moreover, an important distinction between
assessing whether a plaintiff has pled a “clearly established
theory of liability” and the question of whether that theory is
fairly applied to a government official in light of the facts in a
given case. See Kedra, 876 F.3d at 435 (explaining that a
particular right is only clearly established when the state of
the law gave the relevant official “fair warning that his
actions were unconstitutional in the particular factual scenario
he confronted” (internal quotation marks, citation, and
editorial marks omitted)). It is only when both the theory of




                               12
liability and its application to the established facts are
sufficiently plain that the legal question of liability is beyond
legitimate debate and a plaintiff can defeat a qualified
immunity defense. Id. at 435-36. In this instance, as
discussed above, Sauers’s complaint relies on the clearly
established state-created danger theory of liability. The
particular factual allegations, meanwhile, involve a police
pursuit of a non-fleeing summary traffic offender.

        Accordingly, to assess whether the right to be free of
the risk associated with a non-emergency but reckless police
pursuit was clearly established in May 2014, we must ask
whether Supreme Court precedent, our own precedent, or a
consensus of authority among the courts of appeals placed
that right beyond debate. See al-Kidd, 563 U.S. at 741-42;
Kedra, 876 F.3d at 450. Qualified immunity, after all,
protects even those officials who exercise extraordinarily
poor judgment. al-Kidd, 563 U.S. at 743. Law enforcement
officials do not get stripped of qualified immunity every time
a judge, with the clarity afforded by hindsight, believes that
an official has committed a wrong. Otherwise, the very
purpose of qualified immunity – to give law enforcement
officials the benefit of all reasonable doubt in the exercise of
their professional duties – would be undermined. If any
uncertainty existed in the law in May 2014 as to whether
reckless police driving could give rise to constitutional
liability in circumstances such as those alleged here, then we
must afford Homanko the protections of qualified immunity.
Our survey of the relevant cases reveals that the law was not
so clear as to be “beyond debate.” Id. at 741.

      An officer on patrol in May 2014 could have
reasonably understood, based on prevailing law, that he could




                               13
pursue a potential traffic offender, even recklessly, without
being subjected to constitutional liability. The Supreme
Court, in County of Sacramento v. Lewis, 523 U.S. 833
(1998), had adopted an intent-to-harm standard in a police
pursuit case involving a high-speed chase of dangerously
fleeing suspects. Id. at 854. In the years between that
decision and the events at issue here, the courts of appeals
were inconsistent in whether to apply the intent-to-harm
standard in police-pursuit cases only when an exigency
necessitated a chase, or whether to apply that standard in all
police-pursuit cases, regardless of any exigencies.

       Lewis involved a police officer who was pursuing two
suspects actively fleeing the police in a dangerous manner.
Id. at 836. The suspects, riding together on a motorcycle,
were weaving in and out of traffic at high speeds. Id. After
the driver of the motorcycle lost control and crashed, the
pursuing officer accidentally struck and killed one of the
suspects. Id. at 837. The Court characterized the situation as
involving an officer who had to make an “instantaneous”
reaction to the fleeing suspects’ “outrageous behavior[.]” Id.
at 855. It held that, in such circumstances, a police pursuit
will not give rise to a substantive due process violation absent
a specific intent to harm. Id. at 854. In reaching that
conclusion, the Court noted that conduct intended to cause
harm was “most likely to rise to the conscience-shocking
level” and that negligent conduct was never sufficient for a
substantive due process claim. Id. at 849. It also explained,
however, that conduct falling between intentional conduct
and negligent conduct was “a matter for closer calls” that
could, given the right circumstances, be actionable under the
Fourteenth Amendment. Id.




                              14
        Lewis, then, clearly established that an officer can be
liable for a substantive due process violation resulting from a
high-speed pursuit of a dangerously fleeing suspect only if the
officer intended to cause harm. But it left open the possibility
that a lower level of culpability could suffice in the right
circumstances. In May 2014, the courts of appeals had not
coalesced around what those circumstances might be in the
police-pursuit context. The Tenth Circuit, in Green v. Post,
addressed a police officer’s request for qualified immunity in
a case analogous to ours and explained that

       there are many permutations on the theme of
       police pursuits; while most involve high speeds,
       there are many variables, including whether the
       officer is responding to an emergency or not,
       whether he or she is directly pursuing a fleeing
       suspect or not, and, significantly under Lewis
       and cases interpreting it, whether the officer has
       time for actual deliberation.

574 F.3d 1294, 1309 (10th Cir. 2009).

        In Green, an innocent driver was killed after a police
officer crashed into the victim’s car as the officer “was
simply trying to catch up to [a] suspected violator of the
law[.]” Id. at 1297. The suspect had allegedly filled his car
up with approximately $30 worth of gas without paying for it.
Id. at 1296. The crash occurred as the officer “was traveling
straight through [an] intersection at a high rate of speed and
without his vehicle’s siren or lights on[.]” Id. The officer
admitted “that he was not responding to an emergency
situation” and that the suspect was not actively fleeing him.
Id. at 1297.




                              15
       The court identified the officer’s actions as falling “in
the middle range of the culpability spectrum” identified by
Lewis – more than negligent but not quite intentional – that
could potentially give rise to a substantive due process
violation. Id. at 1302 (citation omitted). It thus applied the
“deliberate indifference” standard when assessing the
officer’s conduct. Id. at 1302-03. Although it concluded that
the conduct was not sufficiently conscience-shocking to
violate the Fourteenth Amendment, the court nonetheless
proceeded to analyze whether the law on police pursuits was
clearly established. Id. at 1303-04.

       It noted that at least two of our sister circuits – the
Eighth and Ninth Circuits – have adopted an “intent to harm”
standard for all police pursuit cases, whether or not an
emergency existed at the time of pursuit. Id. at 1308-09
(citing Bingue v. Prunchak, 512 F.3d 1169, 1177 (9th Cir.
2008); Helseth v. Burch, 258 F.3d 867, 871 (8th Cir. 2001)
(en banc)). The Ninth Circuit, for its part, held “that the
Lewis standard of ‘intent to harm’ applies to all high-speed
police chases,” and it refused to “draw a distinction between
‘emergency’ and ‘non-emergency’ situations” involving an
officer’s attempt to apprehend a suspect.7 Bingue, 512 F.3d at

       7
          Although the Ninth Circuit appears to have limited
its application of Lewis’s intent-to-harm standard to
“situations involving high-speed chases aimed at
apprehending a fleeing suspect,” any such limitation does not
undermine that court’s explicit refusal to distinguish between
“‘emergency’ and ‘non-emergency’ situations.” Bingue, 512
F.3d at 1177. It also leaves open the question of whether a
suspect leaving the scene of a crime, who does not know that




                              16
1177. Similarly, the Eighth Circuit interpreted Lewis as
meaning “that the intent-to-harm standard, rather than the
deliberate indifference standard, applies to all high-speed
police pursuits aimed at apprehending suspected offenders.”
Helseth, 258 F.3d at 871. After surveying the state of the law
after Lewis, the Tenth Circuit concluded that “it was not
clearly established [in June 2006] what specific standard [of
culpability] applied to … [an] officer … engaged in a high-
speed non-emergency response to a call to locate and arrest a
suspected gas thief.” Id. at 1304.

       The Eighth Circuit has since reemphasized its
interpretation of Lewis. In Sitzes v. City of West Memphis, it
was faced with circumstances in which a police officer
responded to a 911 report of a robbery in a Wal-Mart parking
lot involving $55 and an alleged assault. 606 F.3d 461, 464
(8th Cir. 2010). Despite the fact that the crime was not
reported to be ongoing, and that other officers were already
en route to the scene, the defendant-officer decided to drive
between 80 and 90 miles-per-hour on a 30 mile-per-hour two-
way street without turning on his sirens or emergency lights.
Id. In racing to the parking lot, the officer crossed over into
opposing traffic, ultimately crashing into a bystander’s car at
an intersection and killing one of the occupants. Id. The
court nevertheless upheld the application of an intent-to-harm
standard because the defendant-officer had testified that he
“subjectively” believed that he was responding to an
emergency. Id. at 468. The court explained that that standard


the police are pursuing him, should be considered a “fleeing
suspect.” It is far from certain, therefore, what standard of
culpability the Ninth Circuit would apply to the facts at issue
here.




                              17
was appropriate even though the facts “might not qualify as
an ‘emergency’ under” police department policies. Id. And,
importantly, it held that it did “not ‘reject intent-to-harm as
the governing standard whenever a judge or a jury could say,
with the wisdom of hindsight, that an officer engaged in a
high-speed pursuit had ample time to deliberate.’” Id.
(citation omitted). According to that court, “the amount of
time [an officer has] to deliberate on his actions is not, by
itself, sufficient to render the intent-to-harm standard
inapplicable.” Id.

        Given those decisions by the Eighth, Ninth, and Tenth
Circuits, we cannot conclude that case law by May of 2014
had clearly established that an officer’s decision to engage in
a high speed pursuit of a suspected traffic offender could, in
the absence of an intent to harm, give rise to constitutional
liability.8 A police officer could have understood that, as

       8
          Our own precedents do not provide any added clarity
regarding the proper standard by which to judge whether an
officer’s conduct shocks the conscience in police pursuits that
involve neither an emergency nor a fleeing suspect. Although
we have indicated that the “shocks the conscience” standard
applies to police pursuit cases, see Brown, 318 F.3d at 480
(“[T]he ‘shocks the conscience’ standard should apply in all
substantive due process cases if the state actor had to act with
urgency[, including] police pursuit cases[.]”), our cases do not
give fair warning that, absent an intent to harm, police could
face constitutional liability based on a high-speed pursuit, see,
e.g., Davis v. Twp. of Hillside, 190 F.3d 167, 171 (3d Cir.
1999) (applying Lewis intent to harm standard to injury of
bystander who was injured as a result of a high-speed pursuit
of a fleeing suspect).




                               18
long as he believed a pursuit was justified, constitutional
liability would not follow based on recklessness alone.

        Our dissenting colleague disagrees, concluding that it
was obvious in May 2014 that Homanko’s conduct violated
the Constitution. Concur./Dissent at 9-10. To the dissent, it
is of high importance that the Tenth Circuit in Green applied
a deliberate difference standard to a police driving case that,
as here, involved neither an emergency nor an actively fleeing
suspect. But the dissent discounts the fact that no court of
appeals (until now) has joined the Tenth Circuit in
distinguishing between those police pursuit cases in which a
true exigency exists and those in which less is at stake. As
we have described above, at least two courts of appeals have
explicitly questioned the sort of distinction drawn by the
Tenth Circuit.9

        We agree with the Tenth Circuit’s application of a
culpability standard below that of “intent to harm” in a non-
emergency police pursuit case – indeed the entire panel here
is in accord on that point. Where we part company with our
dissenting colleague is at his rejection of the rest of the Tenth
Circuit’s decision. That court acknowledged that the law was
not yet clearly established. We accept the accuracy of that
assessment then and believe the law as of May 2014 still


       9
            The dissent minimizes the import of Bingue and
Helseth because those cases involved conduct differing from
the conduct alleged here. But those differences do not alter
those courts’ explicit holdings that the intent-to-harm
standard should apply to police pursuits whether or not the
officer is responding to a pending emergency.




                               19
remained unsettled; our dissenting colleague disagrees.
While he evidently views the legal conclusion about
constitutional liability as obvious, we do not. Nor can we say
that the Tenth Circuit’s decision in Green alone amounts to
the “‘robust consensus of cases of persuasive authority’ in the
Court of Appeals” that we have held necessary to clearly
establish a right in the absence of controlling precedent.
Mammaro, 814 F.3d at 169 (quoting Taylor, 135 S. Ct. at
2044). That is especially so in light of the Eighth Circuit’s
post-Green decision in Sitzes.

        The dissent also suggests that Homanko’s guilty plea
to vehicular homicide and reckless endangerment supports the
conclusion that he violated a clearly established constitutional
right. Concur./Dissent at 10 n.3. Assuming that a guilty plea
to a state criminal statute is important in deciding whether the
culpable conduct violated a clearly established right
guaranteed by the United States Constitution, see Kane v.
Barger, No. 17-3027, --- F.3d ---, 2018 WL 4000068, at *7
(3d Cir. Aug. 22, 2018) (suggesting, though not holding, that
conduct meeting a state criminal statute is more likely to
violate a clearly established constitutional right),10 a

       10
           We note that Kane’s ultimate rejection of qualified
immunity rested on the fact that our own precedent contained
factually and legally analogous case law to put the defendant
“on notice that he acted unconstitutionally.” Kane, 2018 WL
4000068, at *7. No such case law existed in our Circuit in
May 2014 that would have given Homanko fair warning that
he could be subject to constitutional liability for actions
during a police pursuit that were not taken with an intent to
harm.




                              20
conviction for reckless behavior does not help answer the
issue in this appeal: namely, was the law settled in May 2014
that, absent a specific intent to harm, constitutional liability
could be imposed on a police officer engaged in a police
pursuit. We think it was not, and the sympathy we have for
the victims of Officer Homanko’s serious error does not
change that.

      Consequently, although Homanko’s judgment was bad
to the point of recklessness, he is entitled to qualified
immunity on Sauers’s § 1983 state-created danger claim.11

       C.     Establishing the Law in the Third Circuit.

       Although the state of the law in May 2014 was
unsettled as to whether police officers engaged in a police
pursuit could be subject to constitutional liability for a level
of culpability less than an intent to harm, our opinion today
should resolve any ambiguity in that regard within this
Circuit. Police officers now have fair warning that their
conduct when engaged in a high-speed pursuit will be subject
to the full body of our state-created danger case law. That
law clearly establishes that the level of culpability required to
shock the conscience exists on a spectrum tied to the amount
of time a government official has to act. In the police pursuit
context, it is also necessary to take into consideration the

       11
            We emphasize that our decision on qualified
immunity does not mean that Homanko is immune from any
suit arising from his conduct; he is only immune to a suit
alleging the federal constitutional claims made here. He
remains exposed to state law tort claims that can, and have
been, brought against him, so Sauers is not without a remedy.




                               21
officer’s justification for engaging in the pursuit. We
recognize that most high-speed police pursuits arise when
officers are responding to emergencies or when they must
make split-second decisions to pursue fleeing suspects. Our
holding today does nothing to alter the longstanding principle
that, in such cases, constitutional liability cannot exist absent
an intent to harm. But when there is no compelling
justification for an officer to engage in a high-speed pursuit
and an officer has time to consider whether to engage in such
inherently risky behavior, constitutional liability can arise
when the officer proceeds to operate his vehicle in a manner
that demonstrates a conscious disregard of a great risk of
serious harm.

III.   Conclusion

      For the foregoing reasons, we will vacate the District
Court’s denial of Homanko’s request for qualified immunity.




                               22
VANASKIE, Circuit Judge, concurring in part and dissenting
in part.

       I agree with my colleagues that under our state-created
danger framework, the facts alleged by Appellee Michael
Sauers readily establish that Officer Homanko’s conduct was
conscience-shocking. I also agree that, going forward,
“[p]olice officers now have fair warning that their conduct
when engaged in a high-speed pursuit will be subject to the full
body of our state-created danger case law.” Maj. Slip Op. at
15. I therefore join parts II.A and II.C of the majority’s
decision in full. However, because I believe that a reasonable
officer in Homanko’s position would have known on May 12,
2014, that the outrageous conduct alleged in this case was
unconstitutional, I respectfully dissent from the majority’s
finding that Homanko is entitled to qualified immunity.

                               I.

        Under the second prong of the qualified immunity
analysis, we must ask “the objective (albeit fact-specific)
question whether a reasonable officer could have believed
[Homanko’s conduct] to be lawful, in light of clearly
established law and the information [he] possessed.” Anderson
v. Creighton, 483 U.S. 635, 641 (1987). In undertaking this
analysis, the “key issue” is whether a reasonable police officer
in Homanko’s position could have believed that driving a
police cruiser at speeds in excess of 100 miles-per-hour to
catch up to an unsuspecting motorist, who allegedly committed
a minor traffic infraction, “comported with established legal
standards” as they existed on the date of the accident. Beers-
Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001)
(citation omitted). Critically, “it need not be the case that the
exact conduct has previously been held unlawful so long as the
‘contours of the right’ are sufficiently clear such that a ‘general
constitutional rule already identified in the decisional law’
applies with ‘obvious clarity’” to the established facts. Kedra
v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017) (internal
citations omitted) (quoting Anderson, 483 U.S. at 640; Hope v.
Pelzer, 536 U.S. 730, 741 (2002)). This principle holds true
“‘even in novel factual circumstances,’ because the relevant
question is whether the state of the law at the time of the events
gave the officer ‘fair warning.’” Id. (quoting Hope, 536 U.S.
at 741).

       Here, I agree with the majority that, as of May 2014, it
was “clear” that Homanko’s conduct would be evaluated
pursuant to our Court’s sliding scale of culpability.1 Maj. Slip
Op. at 8. I also agree with the majority that our Court has “been
clear in recent years that the level of culpability required to
shock the conscience when an officer has time for hurried
deliberation is a conscious disregard of a great risk of serious
harm.” Id. at 8 n.6 (alterations and citations omitted). And,
like the majority, I too “have no difficulty in concluding” that
an officer who exhibits deplorable judgment and
“unjustifiabl[y]” pursues “a potential summary traffic offender
at speeds of over 100 miles-per-hour, after radioing for
assistance from the neighboring jurisdiction where the


       1
          The Supreme Court in County of Sacramento v. Lewis,
523 U.S. 833 (1998), indicated that a sliding scale of culpable
conduct applied to determine whether a law enforcement
officer’s actions were sufficiently conscienceshocking to
impose liability, stating that the deliberate indifference
“standard is sensibly employed only when actual deliberation
is practical.” Id. at 851. There is no dispute here that “actual
deliberation” by Homanko was practical.




                                2
potential offender was headed, demonstrates a conscious
disregard of a great risk of serious harm.” Id. at 8-9. Applying
these mutually held premises to the question of whether the
Sauers’ due process rights were clearly established on the date
in question, it would appear, therefore, that the majority and I
are in agreement that “the contours of the right are sufficiently
clear[] such that a general constitutional rule already identified
in the decisional law applies with obvious clarity” to the
established facts. Kedra, 876 F.3d at 450 (internal citations
omitted).

        Yet despite our conspicuous agreements on the
pertinent legal principles and their application to the facts at
hand, the majority has concluded that Homanko is entitled to
qualified immunity on the ground that the law was not “settled
in May 2014 that, absent a specific intent to harm,
constitutional liability could be imposed on a police officer
engaged in a police pursuit..” Maj. Slip Op. at 20 (emphasis
added). Justification for such a finding eludes me. To endorse
the majority’s conclusion, one must accept the proposition that
on May 12, 2014, a reasonable police officer—fully informed
of the legal principles recited above—would not have
considered it conscience-shocking to (1) execute a U-turn into
oncoming traffic for the sole purpose of catching a potential
traffic offender, and then (2) proceed in breakneck fashion to
pursue the unmindful offender at speeds over 100 miles-per-
hour, all while being fully aware that there are officers ahead
better positioned to execute a stop.

      Our case law does not compel such an implausible
conclusion. On the date in question here, a reasonable officer
undertaking a non-emergency, high-speed pursuit would have
known that in police pursuit cases brought under 42 U.S.C. §
1983, we assess whether an officer’s conduct “shocks the




                                3
conscience” by gauging how much time the officer had to
deliberate before deciding to give chase. Maj. Slip Op. at 8
(citing, inter alia, Brown v. Pa. Dep’t of Health & Emergency
Med. Servs. Training Inst., 318 F.3d 473, 480 (3d Cir. 2003)).
Indeed, five years prior to the date in question, the Tenth
Circuit held in Green v. Post, 574 F.3d 1294, 1302–03 (10th
Cir. 2009), that Lewis’s intent-to-harm standard does not apply
if—as here—an officer is not engaged in a hot pursuit of a
fleeing suspect, but rather is engaged in a non-emergency,
high-speed, unilateral pursuit of a suspected offender who is
unaware that she is being chased. In such circumstances, the
officer’s conduct is evaluated under a “middle level [standard]
of culpability” that looks to whether the officer acted with
“conscious, deliberate indifference to an extreme risk of very
serious harm to the plaintiff.” Id. at 1303. The “middle level
standard” applied in Green mirrors the “mid-level standard”
that we formally adopted in Sanford v. Stiles, 456 F.3d 298,
307 (3d Cir. 2006), and that the majority applied here. See Maj.
Slip Op. at 8 n.6.

        In my view, qualified immunity should not be granted
here simply because there is little case law imposing liability
on a police officer who drives his cruiser at speeds in excess of
100 miles per hour in a non-emergency situation. Neither the
Supreme Court nor our Court has ever adopted a liability-based
litmus test for determining whether a right was clearly
established on the date in question. See Kedra, 876 F.3d at 450
(“[I]t need not be the case that the exact conduct has previously
been held unlawful so long as the ‘contours of the right’ are
sufficiently clear. . . .”) (quoting Anderson, 483 U.S. at 640)
(emphasis added); see also Brown v. Muhlenberg Twp., 269
F.3d 205, 211 n.4 (3d Cir. 2001) (“If the unlawfulness of the
defendant’s conduct would have been apparent to a reasonable




                               4
official based on the current state of the law, it is not necessary
that there be binding precedent from this circuit so advising.”).
Instead the touchstone of our analysis is reasonableness:
“Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments about open
legal questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743
(2011). And based on the state of the law on May 12, 2014, it
is readily apparent to me that a reasonable officer would have
known—based on the general constitutional principles
delineated in our case law and Green’s pronouncement that
Lewis does not apply to unilateral, non-emergency pursuits of
a non-fleeing suspect—that the type of conduct exhibited by
Officer Homanko was unconstitutional.

        The three cases cited by the majority—two of which
pre-date Green by several years—do not, in my opinion, alter
this conclusion. When seeking guidance from our sister
courts, “[t]he dispositive question is whether the violative
nature of particular conduct is clearly established.” L.R. v.
Sch. Dist. of Philadelphia, 836 F.3d 235, 248 (3d Cir. 2016)
(quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
curiam) (emphasis in original)). And the particular conduct at
issue here is not found in either Bingue v. Prunchak, 512 F.3d
1169 (9th Cir. 2008), or Helseth v. Burch, 258 F.3d 867 (8th
Cir. 2001) (en banc), as both of those cases centered on conduct
that took place during the hot pursuit of a “fleeing” suspect and,
as such, were clearly governed by Lewis. See Bingue, 512 F.3d
at 1177 (“We conclude that high-speed police chases, by their
very nature, do not give the officers involved adequate time to
deliberate in either deciding to join the chase or how to drive
while in pursuit of the fleeing suspect.”) (emphasis added); see
also Helseth, 258 F.3d at 872 (“[The suspect] was a fleeing
criminal, whose irresponsible high-speed driving endangered




                                5
countless citizens and ultimately killed one innocent bystander
and maimed another. . . .”) (emphasis added).

        Nor did Sitzes v. City of West Memphis, 606 F.3d 461
(8th Cir. 2010), involve the particular conduct at issue here.
Sitzes involved an accident in February of 2007 when an officer
responding to a reported robbery and assault drove his vehicle
at speeds between 80 and 90 m.p.h. and collided in an
intersection with another car, killing the innocent driver and
injuring a passenger. The majority in Sitzes relied upon the
fact that the officer in question subjectively believed that he
was responding to an emergency in holding that the “intent to
harm” standard, and not a “deliberate indifference” or
“conscious disregard of a great risk of serious harm” standard,
applied to the officer’s conduct. Significantly, the majority
plainly indicated that the “intent to harm” standard would not
control where the officer did not subjectively believe that the
situation presented a real emergency, stating:

      Although we are deeply troubled by Officer
      Wright's actions, we cannot say that the district
      court erred in applying the intent-to-harm
      standard in this case. First, we must reject
      plaintiffs' primary argument, which bases liability
      on the situation . . . not being a “true” emergency.
      Terrell forecloses inquiry into the objective
      nature of the emergency, as substantive due
      process liability turns on the intent of the
      government actor. 396 F.3d at 980. Thus, the fact
      that the situation . . . was not as serious as those
      presented in Helseth or Terrell, or that it might not
      qualify as an “emergency” under the [police
      department] Policy and Procedure manual, is not
      determinative of the appropriate level of scrutiny.




                               6
Neither is the fact, emphasized by the dissent, that
Officer McDougal and others testified that they
would never have driven in the manner that
Officer Wright did, or that Officer McDougal
responded to the situation . . . differently than
Officer Wright. This would all be more relevant
if our question was whether the situation was an
objectively “true” emergency. However, it bears
little relevance to the question of what Officer
Wright subjectively believed. . . .

We agree with the dissent that our opinion
should not be read to establish a rule that an
officer can insulate himself from substantive due
process liability, no matter the circumstances, by
simply averring that he subjectively believed the
situation to which he was responding was an
emergency. See Terrell, 396 F.3d at 980 n. 2.
This could lead to the absurd results forecasted
by the dissent. For example, the dissent fears that
this case could be used to insulate from
substantive due process liability an officer who
drove “100 miles per hour through a children's
playground during recess time,” or an officer
who drove “the wrong way down an interstate
highway ... when responding to something as
routine as a reported accident requiring traffic
control[,]” as long as the officer stated that he
believed the situation to be an emergency. First,
such cases are far beyond the factual scenarios of
Lewis, Helseth, and Terrell, which involved
officers using conventional emergency driving
techniques to respond to perceived emergencies.




                        7
       Nothing in our opinion would countenance
       granting summary judgment in either of the two
       situations presented by the dissent. Second, we
       think it very likely that an officer who
       intentionally drove through a playground or the
       wrong way on an interstate highway could be
       held liable even under the intent-to-harm
       standard, regardless of the officer's avowed
       belief, at least absent some compelling exigency
       not described in the hypotheticals. In sum, we do
       not understand this case to establish a per se rule
       that an officer's self-serving affidavit will always
       insulate that officer from substantive due process
       liability. Instead, we simply hold that the
       plaintiffs have failed to create a genuine issue of
       fact as to Officer Wright's subjective belief and
       that this belief is not so preposterous as to reflect
       bad faith on the part of Officer Wright.

Id. at 468, 469-70. Thus, far from rejecting application of a
conscious disregard standard to police conduct that did not
concern an emergency situation, Sitzes actually suggests that
such a standard does apply when it is clear that the officer was
not confronted with an emergency situation. And in our case,
we are in full agreement that “[t]here was no emergency at all,
and Homanko likely did the most that was warranted when he
radioed the police in a neighboring jurisdiction to stop the
offender.” Maj. Slip Op. at 6. The reliance in Sitzeson the
officer’s belief in that case that he faced an emergency situation
can be read as providing notice to law enforcement officers that




                                8
they are not insulated from liability for engaging in egregiously
reckless criminal conduct in a non-emergency context.2

       Green on the other hand—as the majority plainly
recognized—“arose in a non-emergency setting and did not
involve a suspect fleeing the police in a dangerous manner.”
Maj. Slip Op. at 14. Those facts—again as the majority
recognized—are akin “to the allegations in this case. . . .” Id.
The majority is correct in its assertions that “[w]hen qualified
immunity it at issue, context matters” and that courts must
“take into account the ‘particularized’ facts of a case.” Maj.
Slip Op. at 11. Green, therefore, is the only case that addresses
the context and particularized conduct at issue here. And when
read in conjunction with the “general constitutional rule
already identified in the decisional law,” it is evident—indeed,
“obvious”—that a reasonable officer would have known on
May 12, 2014, that Officer Homanko’s admittedly criminal




       2
          Contrary to the majority’s assertion, we do not
minimize the import of the Ninth Circuit’s holding in Bingue
or the Eighth Circuit’s holding in Helseth. Instead, we rely
upon the Eighth Circuit’s post-Helseth and post-Bingue careful
delineation between emergency and non-emergency situations
articulated in Sitzes..We also rely and on the Tenth Circuit’s
holding in Green that the intent to harm standard does not
apply in the non-emergency context to conclude that a
reasonable police officer would know in May of 2014 that the
type of conduct engaged in by Homanko was conscience-
shocking such that liability could be imposed.




                               9
conduct was unconstitutional.3       Kedra, 876 F.3d at 450
(citation omitted).


       3
         It bears reiterating that Officer Homanko pled guilty to
vehicular homicide and reckless endangerment. A reasonable
officer engaged in criminal conduct that resulted in the loss of
life and severe personal injuries in a violent collision surely
would understand that his conduct would be regarded as
sufficiently conscience-shocking so as to preclude the defense
of qualified immunity. Indeed, it would appear that his guilty
plea would defeat the defense of official immunity under
Pennsylvania tort law that would otherwise be available to
Officer Homanko for engaging in conduct that fell within the
scope of his duties. See 42 Pa.C.S.A. § 8550 (application of
official immunity otherwise available under 42 Pa.C.S.A. §
8446(2) is foreclosed where “it is judicially determined that the
act of the employee caused the injury and that such act
constituted a crime, actual fraud, actual malice or willful
misconduct.”).       This reinforces the conclusion that a
reasonable law enforcement officer would understand that he
could not take another person’s life through criminal conduct
and yet retain qualified immunity. Notably, in Kane v. Barger,
No. 17-3027, --- F.3d ---, 2018 WL 4000068, at *7 (3d Cir.
Aug. 22, 2018), we held that a law enforcement officer’s
conduct that merely “resemble[d] the crime of indecent
assault” – the officer had touched the plaintiff’s intimate parts
for his own gratification – was such that “given the
egregiousness of [defendant’s] violation of [plaintiff’s]
personal security and bodily integrity, the right here is so
‘obvious’ that it could be deemed clearly established even
without materially similar cases.”           So, too, here the
obviousness of Officer Homanko’s violation of the plaintiffs’




                               10
        Our decision in Kedra supports this conclusion. There,
the mother of a Pennsylvania State Trooper brought a § 1983
claim against a police instructor who accidentally shot a loaded
handgun into the trooper’s chest during a routine training
session, killing him. Kedra, 876 F.3d at 432. The complaint
alleged that the officer’s conduct was conscience shocking
because he “bypassed all of the safety checks [and] failed to
physically or visually inspect the gun to ensure it was
unloaded” before pulling the trigger. Id. at 433. Like the
majority here, we concluded in Kedra that the allegations gave
rise to the inference that the officer “acted with actual
knowledge of a substantial risk of lethal harm” so as to shock
the conscience under a then-clearly established theory of
deliberate indifference. Id. at 448 (citations omitted). We then
turned to the question of whether the right at issue—i.e., “an
individual’s right not to be subjected, defenseless, to a police
officer’s demonstration of the use of deadly force in a manner
contrary to all applicable safety protocols”—was clearly
established on the date in question. Id. at 449 (footnote
omitted). After reciting the general constitutional rules
identified in our decisional law and analyzing the facts of a
“closely analogous case from the First Circuit,” we concluded
that a reasonable officer would have had fair warning that the
conduct at issue was constitutionally prohibited on the date in
question. Id. at 450–52 (citation omitted).

       The same conclusion applies here. The general
constitutional principles are clear. Green applied those
principles to an analogous set of facts. The unconstitutional


rights to life and bodily integrity defeats the defense of
qualified immunity even in the absence of materially similar
cases.




                              11
nature of Homanko’s actions, placing at substantial risk those
traveling a two-lane, undivided highway in recklessly criminal
pursuit of an unsuspecting motorist for a minor traffic
infraction, was clearly established when he slammed into the
Sauers’ vehicle, mortally injuring Mrs. Sauer and severely
injuring her husband.

      I respectfully dissent.




                                12
