Porter v. Osborn ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTHUR J. PORTER; CHRISTIE L. 
PORTER,
Plaintiffs-Appellees, No. 07-35974
v. D.C. No.
ARTHUR J. OSBORN,  CV-05-00142-
Defendant-Appellant, A-JWS
and OPINION
JOSEPH WHITTOM,
Defendant.

Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted
August 6, 2008—Anchorage, Alaska
Filed October 20, 2008
Before: Dorothy W. Nelson, A. Wallace Tashima and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
14579
14582 PORTER v. OSBORN
COUNSEL
Ruth Botstein, Assistant Attorney General, Anchorage,
Alaska, for the defendant-appellant.
Mark D. Osterman, Mark D. Osterman Law Office, Kenai,
Alaska, for the plaintiffs-appellees.
OPINION
FISHER, Circuit Judge:
This case raises the question of the appropriate standard of
culpability to apply to a police officer who kills a suspect in
PORTER v. OSBORN 14583
the course of investigating a suspicious car parked alongside
an Alaska highway, under circumstances that suggest the offi-
cer may have helped to create an emergency situation by his
own excessive actions. It comes in the context of a lawsuit
brought by the parents of the victim, claiming the officer vio-
lated their Fourteenth Amendment substantive due process
right of familial association with their deceased son. They
contend the officer’s actions were so outrageous as to shock
the conscience. The district court found that the parents pre-
sented sufficient evidence that the officer’s conduct violated
their constitutional rights to warrant a jury trial, but we are
compelled to conclude it did so by applying an incorrect stan-
dard of culpability to the officer’s actions. We therefore
reverse and remand for reconsideration of the officer’s culpa-
bility under the proper standard and whether he is entitled to
qualified immunity on summary judgment.
The plaintiffs and appellees are Arthur J. and Christie L.
Porter (collectively “the Porters”), who brought this suit after
their adult son, Casey Porter, was fatally shot in a brief but
tragic confrontation with two Alaska State Troopers. Among
several federal and state claims, the Porters principally
claimed that their Fourteenth Amendment right of association
was violated by the way in which defendant-appellant Arthur
J. Osborn (“Osborn”) and his fellow trooper Joseph Whittom
(“Whittom”) handled the roadside incident that resulted in
Casey’s death. As we discuss in more detail later, the troopers
were responding to a call about an apparently abandoned
vehicle parked in a highway pull-out area. Osborn, who
arrived on the scene first, discovered the car was in fact occu-
pied by Casey, who apparently had been asleep in the driver’s
seat. In a rapidly escalating confrontation, the troopers
shouted at a startled and confused Casey to get out of his car.
When he failed to comply, both troopers quickly exited their
cars and drew their guns, with Osborn taking the lead in
approaching the car to get Casey to comply. When Casey
rolled down his window but did not move to get out, Osborn
pepper sprayed him through the open window. Casey reacted
14584 PORTER v. OSBORN
in pain and began to drive the car slowly forward toward
Whittom’s patrol car, at which point Osborn fired five shots
at Casey, killing him. Whittom, questioned shortly thereafter
by an investigator, expressed his “shock” that “shots were
fired . . . in a situation like this.”
The district court dismissed all state law claims and all
claims against Whittom, none of which are before us on this
appeal. As to the Fourteenth Amendment claim, the district
court found that there were enough disputed facts to preclude
granting Osborn summary judgment on qualified immunity
grounds, concluding that a jury could find that Osborn’s con-
duct shocked the conscience under a clearly established “de-
liberate indifference” standard of culpability.
Osborn has appealed, arguing that his actions did not vio-
late a constitutional standard, but even if they did, the deliber-
ate indifference standard was not clearly established at the
time. We conclude that a different and more demanding stan-
dard of culpability than deliberate indifference applies.
Rather, in an urgent situation of the kind involved here, the
established standard is whether Osborn acted with a purpose
to harm Casey without regard to legitimate law enforcement
objectives. Whether a jury could find Osborn violated that
standard is not clear on the record before us. Although Osborn
appears to have helped create and even exacerbate the con-
frontation he then ended by deadly force, the parties and the
district court will need to readdress Osborn’s summary judg-
ment motion under the more stringent purpose to harm stan-
dard. We therefore reverse the court’s denial of qualified
immunity and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Many of the relevant facts are contested or ambiguous, but
on Osborn’s motion for summary judgment any doubts must
be resolved in favor of the Porters’ version of events. See
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059 (9th Cir.
PORTER v. OSBORN 14585
2006). There is no dispute that it took very little time — prob-
ably no more than five minutes — for the entire tragic
encounter to play out. Around 2:00 a.m. on January 4, 2003,
Trooper Whittom received a call from dispatch regarding a
vehicle reported by a highway department employee. The
reported vehicle had been parked for about two and a half
hours at the Kenai Keys pullout, a large parking lot sized area
just off the Sterling Highway in a lightly populated part of the
Kenai Peninsula southwest of Anchorage. There was a light
snow covering the parking area, and no other vehicles around.
The car’s lights had been turned on and off whenever the
highway employee passed. Trooper Osborn also heard the call
and arrived at the scene before Whittom. When Osborn found
the car, he initially thought it may have been abandoned, so
he turned on his headlights and got out of his car to investi-
gate. He returned to his patrol car to call in the license plate
number when “somebody sat up . . . in the drivers seat . . .
very — very fast . . . and grabbed the steering wheel and was
looking right at me.” Osborn testified in his deposition that
although it was very dark outside, his headlights were shining
eye-level with the driver, Casey, and were bright enough to
illuminate the inside of the car. A few seconds later, Casey
started slowly steering his car to go around Osborn. At this
point, Osborn turned on his overhead flashing blue and red
lights “because [Casey] was trying to leave,” which Osborn
was not prepared to allow “because we were investigating a
suspicious vehicle.”1 He admitted that the call to dispatch was
the only information at the time indicating Casey’s conduct
required police intervention.
When Casey did not stop, Osborn moved his car a few
inches forward to try to block him. Casey continued to turn,
1
It is unclear whether Osborn ever verbally identified himself as a
police officer. He did not do so during the tape recorded portion of the
incident. The Porters contend that Casey never knew that Osborn or Whit-
tom were officers, given the darkened conditions and lights in Casey’s
eyes.
14586 PORTER v. OSBORN
so Osborn allowed him to pass because he did not want Casey
to hit his car. He testified that “as he drove by my vehicle I
looked out my window, we made eye contact and I pointed
and said stop the vehicle . . . something like that.” Osborn
admitted that his window was not down at the time, but
emphasized that he had made a motion as well. Whittom
arrived as Casey began to maneuver around Osborn, and he
tried to pull in front of Casey to stop him from leaving. Whit-
tom’s overhead red and blue lights were on and his headlights
illuminated Casey’s vehicle’s interior. Osborn then got out of
his car and began walking alongside Casey’s slow moving
car, ordering him to stop. It was around this time that Osborn
activated his tape recorder. The fatal events that followed fill
only one page of transcript and approximately two minutes of
tape recording.2
Casey’s car finally stopped about a car’s length away from
Whittom, at which point both officers shouted orders at him
to get out of the vehicle. Whittom did so from either behind
or directly in front of his patrol car door with his service
weapon out, whereas Osborn did so from within touching dis-
tance of Casey’s door with his gun in his hand. In the heat of
the moment, Whittom ordered Casey to both get in and get
out of his vehicle, and he later acknowledged that it may have
been confusing to have had two people yelling at once. While
the troopers were ordering Casey out of the car, Casey rolled
his window down. Osborn did not answer Casey when he
asked “what’s wrong, sir?” He explained he thought Casey
was just “buying time” with this question, that at this point
“the contact had already dissolved to a point where he had
shown me by his actions that he was going to ignore anything
but a command such as get out of the car” and that “[a]t this
point he was eluding a police officer.” Osborn continued to
order him to get out while attempting to enter the car through
the front and rear doors.
2
The entire transcript is two pages, with the second page recording
Osborn’s and Whittom’s discussion after the shooting.
PORTER v. OSBORN 14587
Whittom reported that at this point Casey had “a confused
look on his face,” and kept bringing his hands up above and
then below their sight line. This also concerned Osborn, and
when Casey started to crank the window up Osborn sprayed
pepper spray inside the vehicle. Casey went into a fetal posi-
tion with his hands over his face moaning, “Ahh . . . I didn’t
do nothing!” Whittom ducked into his vehicle to tell dispatch
that Casey had been sprayed, at which point Osborn described
seeing what he called “the calm before the storm”:
Then [Casey’s] head snaps up, straight up, and his
face is looking straight forward, both of his hands
actually reach up and grab the wheel like — like you
would grab a steering wheel if you wanted to tear it
off the steering column. I mean grabbed it. I mean [I]
remember seeing his white knuckles and skin
stretched, both hands on the wheel, right and left, lit
up in Trooper Whittom’s headlights. Then I — and
he looked stone cold straight forward. Obviously
[he] had ignored every command up to that point,
you know, he . . . was not obeying any commands.
And then instantly [the] engine revved what sounded
to me like full throttle and the tires were spinning
and his lights were lighting up Trooper Whittom’s
uniform from his last known position knowing he’s
behind the door, I remember seeing blue in the
lights. And I fired my weapon until the — I heard
the engine down rev and the vehicle was obviously
stopped.
Less than a minute elapsed between the pepper spray and the
shooting. Whittom admitted that most people try to leave an
area once they have been pepper sprayed and that Casey’s car
never directly hit Whittom; instead, he felt an impact from his
own car, whose front brace was hit by Casey’s car. In his
deposition, Whittom described the impact as something that
“wasn’t hard, it was just kind of a like a little push on my leg
and — and I took a step back. It wasn’t like something hit me.
14588 PORTER v. OSBORN
It was just a real gentle kind of push.” Whittom also admitted
that Casey’s car could not go very fast given the short dis-
tance that it had to cover.3 When asked, “the likelihood of . . .
being harmed behind that patrol car, was that great?” he
responded, “I didn’t perceive it as so.”
After the accident, around 6:45 a.m., Whittom was inter-
viewed at a nearby post by Dane Gilmore, an investigator
with the Alaska State Troopers. He told the investigator that
he did not think deadly force was necessary because he was
shielded by his vehicle. He explained:
[M]y initial thought was uh . . . the shock . . . I
couldn’t . . . couldn’t believe that shots were fired in
. . . in a situation like this.
***
Um . . . you know . . . I guess from my . . . my per-
spective, I didn’t see uh . . . that shots were war-
ranted in this situation. Um . . . I didn’t feel any
danger to myself when the sus . . . when the driver
of the . . or the suspect vehicle decided to um . . .
gun it. Um . . . you know he’d already been sprayed
and uh . . . and with the conditions that were . . .
were there um . . . I don’t think that uh . . . you know
it was . . . was good use of force. . . . In . . . in . . .
in my own . . . uh perspective. And . . . and that’s
why I didn’t return fire or . . . or shoot when . . . um
. . . when I saw the vehicle coming towards me. . . .
Because I was shielded by my vehicle.
Later, after talking with another investigator, Whittom
3
During his deposition, Whittom agreed the car could not have been
going very fast but said he was not sure of the speed when the Porters sug-
gested that it was only a mile or two per hour. Immediately after the inci-
dent, he suggested the car had been going about five or 10 miles per hour.
PORTER v. OSBORN 14589
retracted this testimony, reasoning that he must have subcon-
sciously perceived a greater danger because he drew his
weapon, took a guard position and released the safety on his
weapon when he heard the engine rev. At no time did the offi-
cers see Casey with a gun, nor did they recover a weapon
from the car.
Originally filed in state court, the Porters’ suit was ulti-
mately removed to federal district court. As is pertinent to this
appeal, their amended complaint alleged that Osborn violated
their Fourteenth Amendment “fundamental liberty interest” in
the society of their child, entitling them to relief under 42
U.S.C. § 1983.4 The district court denied Osborn’s motion for
summary judgment claiming qualified immunity, finding that
the Porters had shown enough to establish the violation of a
clearly established constitutional right. No claims personal to
Casey are before us. The Porters do not bring any claims on
Casey’s behalf because they were not appointed to represent
his estate. The estate proceeded separately against the defen-
dants and settled out of court. The Porters concede that their
claims are therefore limited to their Fourteenth Amendment
rights as Casey’s parents.
STANDARD OF REVIEW
A district court’s denial of qualified immunity is reviewed
de novo. See Kennedy, 439 F.3d at 1059. We must view the
facts in the light most favorable to the nonmoving party. See
id. “If a genuine issue of material fact exists that prevents a
determination of qualified immunity at summary judgment,
the case must proceed to trial.” Serrano v. Francis, 345 F.3d
1071, 1077 (9th Cir. 2003).
4
The Porters brought a host of other claims against other defendants and
under various state laws. None of these alternative claims is at issue here,
as they were either voluntarily dismissed or dismissed by the district court
and subsequently not appealed.
14590 PORTER v. OSBORN
DISCUSSION
[1] To determine whether Osborn is entitled to qualified
immunity, the first question is whether the facts show a con-
stitutional violation. See Saucier v. Katz, 533 U.S. 194, 201
(2001). “[I]f a violation could be made out on a favorable
view of the [non-moving] parties’ submissions, the next,
sequential step is to ask whether the right is clearly estab-
lished.” Id.5
[2] Here, the potential constitutional violation involves the
Porters’ Fourteenth Amendment due process right to associate
with their son, Casey. See Curnow v. Ridgecrest Police, 952
F.2d 321, 325 (9th Cir. 1991) (“The Ninth Circuit recognizes
that a parent has a constitutionally protected liberty interest
under the Fourteenth Amendment in the companionship and
society of his or her child . . . .”); see also Moreland v. Las
Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998).
Whether Osborn committed a constitutional violation under
the first step of Saucier’s qualified immunity analysis presents
two issues. First, we must decide the appropriate standard of
culpability to apply to Osborn’s conduct to determine whether
it “shocks the conscience” under the Fourteenth Amend-
ment’s Due Process Clause. See County of Sacremento v.
Lewis, 523 U.S. 833, 846 (1998). Second, it must be deter-
mined whether Osborn’s conduct met that standard of culpa-
bility, particularly given his role in creating the emergency
that led to his fatally shooting Casey. Because we disagree
with the district court’s determination of the first question and
conclude that a stricter standard of culpability applies, we
remand so the district court may decide the second issue of
whether Osborn’s conduct met the stricter standard.
5
The Supreme Court recently granted certiorari in Pearson v. Callahan,
128 S. Ct. 1702 (2008), directing the parties to brief the question of
whether Saucier should be overruled. We proceed under the requirements
of current Supreme Court law.
PORTER v. OSBORN 14591
A.
[3] We begin by clarifying the standard of culpability for
a due process right to familial association claim. The parties
mistakenly suggest that the choice is between “shocks the
conscience” and “deliberate indifference” as the governing
standard, when in fact the latter is one subset of the former.
The Supreme Court has made it clear, as the district court cor-
rectly recognized, that only official conduct that “shocks the
conscience” is cognizable as a due process violation. Lewis,
523 U.S. at 846 (citing Rochin v. California, 342 U.S. 165,
172-73 (1952)). The relevant question on the facts here is
whether the shocks the conscience standard is met by showing
that Trooper Osborn acted with deliberate indifference or
requires a more demanding showing that he acted with a pur-
pose to harm Casey for reasons unrelated to legitimate law
enforcement objectives. See id. at 836. In our cases following
the Supreme Court’s enunciation of the shocks the conscience
test in Lewis, we have distinguished the “purpose to harm”
standard from the “deliberate indifference” standard, recog-
nizing that the overarching test under either is whether the
officer’s conduct “shocks the conscience.” See, e.g., More-
land, 159 F.3d at 372.
B.
We hold, following Supreme Court precedent and our
cases, that the purpose to harm standard must govern
Osborn’s conduct. Thus, viewing the facts in the light most
favorable to the Porters, they must demonstrate that Osborn
acted with a purpose to harm Casey that was unrelated to
legitimate law enforcement objectives.
[4] The Supreme Court’s decision in Lewis, and several of
our cases following it, involved high speed police chases that
led to the injury of the plaintiffs or their survivors. The evolu-
tion of the case law in this area of the Fourteenth Amendment
— perhaps unsurprisingly — has been deferential to officer
14592 PORTER v. OSBORN
decisions to give chase or use force. After all, these officers
have been simply reacting to the urgent public safety threat of
fleeing motorists in a situation where inaction could be the
most dangerous option. The district court here, however,
declined to apply the purpose to harm standard established by
these cases and instead evaluated the circumstances of
Casey’s shooting under the deliberate indifference standard,
distinguishing Lewis and our cases following it. We recognize
that the district court drew a principled distinction between
police chase cases and the much less obvious public safety
threat Casey posed during Osborn’s roadside investigation,
but our precedent entitles Osborn to the purpose to harm stan-
dard of culpability because the “critical consideration [is]
whether the circumstances are such that ‘actual deliberation is
practical.’ ” Moreland, 159 F.3d at 372 (quoting Lewis, 523
U.S. at 851). Due to the rapidly escalating nature of the con-
frontation between Osborn and Casey, we respectfully dis-
agree with the district court that Osborn had an opportunity
for the kind of deliberation that has been articulated by Lewis
and its progeny.
[5] In Lewis, the Supreme Court recognized that law
enforcement officers confront a variety of circumstances that
may lead to the use of force, and drew a distinction between
situations that evolve in a time frame that permits the officer
to deliberate before acting and those that escalate so quickly
that the officer must make a snap judgment. Thus, “[a]s the
very term ‘deliberate indifference’ implies, the standard is
sensibly employed only when actual deliberation is practical.”
Lewis, 523 U.S. at 851. Factually, Lewis involved a high
speed police chase of a motorcyclist that resulted in a crash,
killing the cyclist’s teenage passenger. See id. at 837. The
teenager’s survivors alleged that police conduct during the
chase violated due process. See id. The Supreme Court
refused to apply the deliberate indifference standard to high
speed police chases, analogizing to cases involving prison
riots. “Like prison officials facing a riot, the police on an
occasion calling for fast action have obligations that tend to
PORTER v. OSBORN 14593
tug against each other.” Id. at 853. In such an urgent situation,
it concluded, “a deliberate indifference standard does not ade-
quately capture the importance of such competing obliga-
tions.” Id. at 852. Instead, it held that “high-speed chases with
no intent to harm 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.
The Court relied principally on Whitley v. Albers, 475 U.S.
312 (1986), an Eighth Amendment prison riot case involving
a guard who had intentionally shot a prisoner to disperse the
rioters. Whitley held that under such circumstances, “a much
higher standard of fault than deliberate indifference has to be
shown for officer liability” — that is, “ ‘whether force was
applied in a good faith effort to maintain or restore discipline
or maliciously or sadistically for the very purpose of causing
harm.’ ” Lewis, 523 U.S. at 852-53 (quoting Whitley, 475
U.S. at 320-21) (emphasis added).6
The Porters argue that Lewis applies only to “unintentional”
or “inadvertent” killings — such as the motorcycle accident
involved there or other innocent bystander types of cases. See,
e.g., Moreland, 159 F.3d at 372 (characterizing Lewis as
involving the “unintentional killing of an individual by law
enforcement officers”); but see Whitley, 475 U.S. at 316
(applying purpose to harm standard to prison officers who
intentionally fired shots at inmates). Although intentionality is
relevant, intent was not central to the Court’s analysis in
either Whitley or Lewis as to which standard to apply. Both
6
Although Lewis said that only officer conduct showing a “purpose to
cause harm unrelated to the legitimate object of arrest” violates the Four-
teenth Amendment, 523 U.S. at 836, the Court elsewhere refers to the
standard as “intent to harm.” See Id. at 854. We discern no distinction
between the two formulations. Our own precedent has referred to the
Lewis standard as “purpose to harm,” Moreland, 159 F.3d at 372, and “in-
tent to harm,” Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008).
Here, we use “purpose to harm.”
14594 PORTER v. OSBORN
decisions instead turned on whether the officers had the
opportunity for actual deliberation. Thus, in Moreland, a case
involving an apparently inadvertent shooting of a bystander,
we emphasized that “the critical consideration [is] whether the
circumstances are such that ‘actual deliberation is practical.’ ”
159 F.3d at 372 (quoting Lewis, 523 U.S. at 851). Our prece-
dent has evolved with repeated emphasis on this “critical con-
sideration,” and in deciding the level of culpability to apply
under the shocks the conscience test has declined to parse an
officer’s intentions and initial decisions to use force. See, e.g.,
id. at 373 (addressing officer conduct only after determining
the standard of culpability by reference to the situation the
officers faced); see also Davis v. Township of Hillside, 190
F.3d 167, 170 (3d Cir. 1999) (“Nothing in Lewis suggests that
courts are free to second-guess a police officer’s decision to
initiate pursuit of a suspect so long as the officers were acting
in the service of a legitimate governmental objective . . . .”)
(internal quotation marks omitted).
[6] In Moreland, police officers responded to a gun fight in
a crowded parking lot, a patently fast paced and urgent threat
to public safety. See Moreland, 159 F.3d at 368. We applied
the purpose to harm standard because the officers had to “ad-
dress a life-threatening situation” in which they faced compet-
ing obligations, namely whether to allow the shooters to
continue firing or to fire upon the shooters to end the threat.
Id. at 372. Similarly, in Onossian v. Block, 175 F.3d 1169,
1171 (9th Cir. 1999), we held that the purpose to harm stan-
dard also applies when bystanders, not the suspects them-
selves, are harmed during a high speed chase. Analogizing
directly to Lewis and Moreland, we again emphasized the
officer’s competing obligations in the “split-second” decision
to give chase. See id. at 1171. Most recently, and after the dis-
trict court ruled here, we concluded that high speed chases are
inherently emergency situations and declined to break them
into “emergency” and “non-emergency” situations in which
the latter would be evaluated under the deliberate indifference
standard. See Bingue v. Prunchak, 512 F.3d 1169, 1175-77
PORTER v. OSBORN 14595
(9th Cir. 2008). Otherwise we would wind up parsing offi-
cers’ “repeated split-second decisions about how best to
apprehend the fleeing suspect in a manner that will minimize
risk to their own safety and the safety of the general public.”
Id. at 1176. Lewis and our cases therefore require that when
an officer encounters fast paced circumstances presenting
competing public safety obligations, the purpose to harm stan-
dard must apply.
At the other end of the spectrum are situations, like the
Eighth Amendment prison cases discussed in Lewis, where
“extended opportunities to do better are teamed with pro-
tracted failure even to care.” Lewis, 523 U.S. at 853. Then,
“indifference is truly shocking.” Id. Similarly, we have held
that where officers have ample time to correct their obviously
mistaken detention of the wrong individual, but nonetheless
fail to do so, the suspect’s family members need only plead
deliberate indifference to state a claim under the due process
right to familial association. See Lee v. City of Los Angeles,
250 F.3d 668, 684 (9th Cir. 2001).
[7] Placed along this spectrum, we are compelled to con-
clude that the purpose to harm standard must apply here.
Osborn faced an evolving set of circumstances that took place
over a short time period necessitating “fast action” and pre-
senting “obligations that tend to tug against each other.”
Lewis, 523 U.S. at 853. The approximately five-minute alter-
cation between Casey and Osborn that ended in Casey’s
shooting was obviously fast paced — and much shorter in
duration than the typical car chase like those in Lewis, Onos-
sian and Bingue. The situation was also quickly evolving and
escalating, prompting “repeated split-second decisions.”
Bingue, 512 F.3d at 1176. The case the district court found
persuasive, Lee, 250 F.3d at 684 (applying deliberate indiffer-
ence standard to a wrongful incarceration), is quite different,
involving as it did a completely controlled situation in which
the police committed an obvious and easily detectable mistake
of identity that they had time to detect and correct. The dis-
14596 PORTER v. OSBORN
trict court’s conclusion that Osborn had opportunity for actual
deliberation, and thus that deliberate indifference should
apply, assumed that five minutes was enough time for Osborn
to consider what he was doing before he acted. However, “de-
liberation” for purposes of the shocks the conscience test is
not so literal a concept. In Lewis itself, the Supreme Court
rejected the deliberate indifference standard for high speed
chases, even though logically an officer giving chase could
deliberate even while accelerating after a suspect. See Lewis,
523 U.S. at 851 n.11 (explaining that the Court did not mean
“ ‘deliberation’ in the narrow, technical sense in which it has
sometimes been used in traditional homicide law”) (emphasis
added). Here the events in the pullout were in constant flux,
with much yelling, confusion and a driver who was refusing
to exit or stop his car. To be sure, the record contains facts
suggesting that Osborn’s own conduct created and agitated
this escalating situation and that his reactions were dispropor-
tionate to the situation he faced. Such facts, however, as we
explain below, are more relevant to the next step of the analy-
sis, when the district court determines on remand whether
they may show Osborn’s purpose was to harm Casey for rea-
sons unrelated to legitimate law enforcement objectives.
[8] In sum, once Casey’s evasive actions began the officers
had to react quickly. Under such circumstances, whether
Osborn’s conduct shocks the conscience must be evaluated
under the purpose to harm standard of culpability. That is
Lewis’ teaching as applied in this circuit. See Bingue, 512
F.3d at 1175 (discussing Lewis, Moreland and Onossian as
requiring purpose to harm where officers must react to an
urgent situation and decide whether to pursue a suspect).
C.
[9] For the Porters to show that Osborn’s shooting of Casey
shocks the conscience under the purpose to harm standard of
culpability they must prove that his purpose was “to cause
harm unrelated to the legitimate object of arrest.” Lewis, 523
PORTER v. OSBORN 14597
U.S. at 836. More specifically, “[i]t is the intent to inflict
force beyond that which is required by a legitimate law
enforcement objective that ‘shocks the conscience’ and gives
rise to liability under § 1983 . . . .” Davis v. Township of Hill-
side, 190 F.3d 167, 172 (3d Cir. 1999) (McKee, J., concur-
ring). The parties do not dispute that this standard of
culpability was clearly established at the time of the shooting
in 2003. Thus, whether Osborn is entitled to qualified immu-
nity on summary judgment turns on whether the Porters can
present facts to the district court that would justify a jury find-
ing that Osborn acted with an unconstitutional purpose to
harm Casey. We remand for that determination.7
Although our cases contain guidance mostly about officers’
intentions and actions that do not evidence a purpose to harm,
a close reading of Lewis and our cases following it indicates
what kind of conduct does reveal a purpose to harm. In Lewis
itself, the Supreme Court held that a purely reactive decision
to give chase evidenced no intention to “induce . . . lawless-
ness, or to terrorize, cause harm, or kill.” Lewis, 523 U.S. at
855. The Supreme Court left open the possibility that liability
can still attach under Lewis where a plaintiff proves particu-
larly objectionable conduct. See Davis, 190 F.3d at 172-73
(McKee, J., concurring). We agree with Judge McKee’s con-
curring opinion in Davis, a Third Circuit police chase case,
which reasons that where force against a suspect is meant
only to “teach him a lesson” or to “get even” then “Lewis
would not shield the officers from liability even though they
were ultimately effectuating an arrest.” Id. Lewis contem-
plates such “rare situations where the nature of an officer’s
deliberate physical contact is such that a reasonable factfinder
7
The Porters’ argument that Osborn’s actions shock the conscience
under the purpose to harm standard is not waived, as Osborn asserts. The
Porters’ complaint alleged that Osborn’s acts were intentional, willful and
wanton, and their response to the motion for summary judgment argued
that Osborn’s actions were unjustified by any legitimate objective of law
enforcement even though they argued that the deliberate indifference stan-
dard was appropriate under the facts here. Osborn has not been prejudiced.
14598 PORTER v. OSBORN
would conclude the officer intended to harm, terrorize or
kill.” Id. at 174 (internal quotation marks omitted).
This reasoning is entirely consistent with our cases inter-
preting Lewis. In Bingue, we held that an officer did not act
with purpose to harm where the officer believed he was “re-
sponding to an emergency.” 512 F.3d at 1177 (emphasis
added). In Moreland, 159 F.3d at 373, we examined officer
conduct under the purpose to harm standard and held that “be-
cause the officers were responding to the extreme emergency
of public gunfire” they did not intend any harm unrelated to
law enforcement objectives. When an officer creates the very
emergency he then resorts to deadly force to resolve, he is not
simply responding to a preexisting situation. His motives
must then be assessed in light of the law enforcement objec-
tives that can reasonably be found to have justified his
actions.
This is the kind of analysis applied in the analogous juris-
prudence governing constitutional claims of excessive force
under the Fourth Amendment, in cases involving claims by or
on behalf of the victim himself. In such a case, the Fourth
Amendment’s reasonableness test applies, see Scott v. Harris,
127 S. Ct. 1769, 1777 (2007), tempered by the special consti-
tutional rules governing deadly force. See Tennessee v. Gar-
ner, 471 U.S. 1, 11 (1985); Price v. Sery, 513 F.3d 962, 966-
67 (9th Cir. 2008). Although a different standard of culpabil-
ity applies to the Porters’ due process claim, this context
implicates precisely the same delicate balancing act between
citizens’ rights to be free from undue police force and the
legitimate safety concerns of officers who make these life and
death decisions. Thus, in both contexts, courts reviewing
deadly force in response to a supposed public safety threat are
presented with a “factbound morass,” especially when on first
glance an officer’s use of deadly force appears disproportion-
ate to the nature of the threat. Price, 513 F.3d at 974, 978
(Fisher, J., concurring) (describing a 24-second confrontation
in which an officer approached a parked car and fatally shot
PORTER v. OSBORN 14599
its driver). In the Fourth Amendment context, this requires
courts to take into account “both the nature of the perceived
threat and the soundness of the officer’s basis for making that
assessment.” Id. (Fisher J., concurring). Similarly, under the
Fourteenth Amendment, Lewis holds that a denial of due pro-
cess “is to be tested by an appraisal of the totality of facts in
a given case.” Lewis, 523 U.S. at 850. We are unable, on the
record before us, to make the appropriate factbound appraisal
to determine whether Osborn’s actions were undertaken to
“induce . . . lawlessness, or to terrorize, cause harm, or kill”
Casey. Id. at 855.
[10] Nonetheless, there are several facts relevant to an
unlawful purpose to harm that need to be considered on
remand — that is, to assess whether under the totality of the
circumstances a jury could infer that Osborn was acting for
purposes other than legitimate law enforcement. First is the
nature of the suspicious car and driver Osborn found in the
pull-out near the Sterling Highway. The lone car was station-
ary and posed no overt threat to officer safety at the outset.
Once Casey started moving the car, he created at least a mini-
mal threat to safety, although hardly on the level of a car
chase. Trooper Whittom reported that he did not feel threat-
ened by Casey’s car, but he and Osborn nevertheless drew
their guns. Second is the nature of the back and forth between
Casey and the troopers. In response to Casey’s rolling his
window down and refusing to exit the vehicle, Osborn precip-
itously sprayed him with pepper spray, an action that could be
viewed as punishing or harassing when it is unclear whether
Casey even knew he was dealing with law enforcement. Whit-
tom’s testimony suggests Casey’s attempt to drive away may
have been a normal effort to escape further spraying, making
Osborn an active participant in triggering Casey’s flight.
Third and most important is Osborn’s severe and sudden esca-
lation of the situation: where Casey’s only violation was non-
compliance, Osborn’s extraordinary response was to fire five
shots, which shocked even Whittom.
14600 PORTER v. OSBORN
There are other facts suggested by the record that may also
bear on Osborn’s intent, but they are not clearly developed.
For instance, it is not clear whether Osborn was in compliance
with Alaska State Trooper regulations governing the use of
force, or whether expert testimony might show that Casey was
driving slowly away from Whittom at the time he was shot.
Although Osborn may be able to show indisputably that his
actions all accorded with proper law enforcement purposes,
on the record before us, we are unable to decide in the first
instance whether the Porters have presented enough facts to
survive summary judgment.
CONCLUSION
[11] We hold that the purpose to harm standard governs the
applicable level of culpability needed to shock the conscience
here, because Osborn faced a fast paced, evolving situation
presenting competing obligations with insufficient time for
the kind of actual deliberation required for deliberate indiffer-
ence. We remand to the district court to review Osborn’s con-
duct under the proper Fourteenth Amendment standard and
determine whether the facts, when taken in the light most
favorable to the Porters, show that Osborn’s actions shock the
conscience because he acted with a purpose to harm for rea-
sons unrelated to legitimate law enforcement objectives.
REVERSED AND REMANDED.