Otero v. Kane: Refining Substantive Due Process Standards for Police Pursuits and Bystander Injuries

I. Introduction

In Joshua Otero v. Christian Kane, the United States Court of Appeals for the Third Circuit (opinion by Judge Bibas) addresses a recurring and difficult question in constitutional tort litigation: when, if ever, can police officers be held liable under the Fourteenth Amendment for injuries to innocent bystanders resulting from a high-speed chase of a fleeing suspect?

The case arises from a fatal collision in Philadelphia’s Kensington neighborhood. Officers Christian Kane and Alexander Hernandez, responding to reports of drug dealing, followed and then pursued a suspected dealer, Tahir Ellison, who drove off, ran red lights, traveled the wrong way on a one-way street, and ultimately crashed into the car of an uninvolved motorist, Virgen Martinez, killing her. Martinez’s son, Joshua Otero, as administrator of her estate, brought suit under 42 U.S.C. § 1983 and state law, alleging that the officers violated Martinez’s Fourteenth Amendment substantive due process rights by recklessly endangering the public in the manner in which they pursued Ellison.

The appeal is from an interlocutory order, certified under 28 U.S.C. § 1292(b), in which the magistrate judge denied the officers’ motion for partial summary judgment on the § 1983 claim and denied them qualified immunity. Accepting that the officers did not intend to harm anyone, the magistrate judge nevertheless concluded that a jury could find that their conduct “consciously disregarded a great risk of serious harm” and thus could satisfy substantive due process under a “shocks the conscience” standard.

The Third Circuit reverses. The court holds that when officers are confronted with a rapidly evolving, dangerous flight by a suspect, the applicable substantive due process standard is the most demanding—intent to harm—and not the lower “conscious disregard” standard. Because there is no evidence that the officers intended to harm anyone, the federal constitutional claim fails as a matter of law. The court also holds, in the alternative, that even if a violation could be found, qualified immunity would bar recovery because no clearly established law placed the alleged violation “beyond debate” in the particular factual setting of this case.

This decision is precedential and clarifies several important points in Third Circuit substantive due process and qualified immunity doctrine, particularly:

How to select the applicable culpability standard in police pursuit cases (intent to harm vs. conscious disregard vs. deliberate indifference);
When to “start the clock” in evaluating whether a situation is “hyperpressurized” or allows time for deliberation;
The limited role of internal police policies in defining constitutional standards; and
How to properly define the “clearly established” right for purposes of qualified immunity in pursuit-related cases.

II. Summary of the Opinion

A. Factual Background

Officers Kane and Hernandez, in a marked police car, responded to a report of drug dealing in Philadelphia’s Kensington neighborhood. Upon arrival, they observed:

A large crowd gathered around an SUV; and
Someone (later determined to be the driver, Tahir Ellison) handing out small items to the crowd, consistent with street-level drug distribution.

Officer Hernandez exited the police car, approached the crowd, and made eye contact with Ellison, who immediately drove off. Hernandez re-entered the patrol car, and the officers followed Ellison at normal speed. They activated their lights and intermittently sounded the siren for approximately seven blocks, but Ellison did not pull over.

The pursuit escalated when:

Ellison ran a red light—and the officers followed through the red light;
Ellison turned the wrong way down a one-way street—and the officers followed;
Ellison then turned onto a major avenue and accelerated to about twice the posted 30 mph limit; and
The officers followed at speeds approaching 55 mph.

After running another red light, Ellison collided with the vehicle driven by Virgen Martinez, killing her. Ellison later pleaded guilty to third-degree murder, aggravated assault, and driving under the influence of marijuana.

The court emphasizes how short the dangerous segment of the chase was:

Only 39 seconds elapsed from the time Ellison went the wrong way down the one-way street until the crash; and
The distance from the first red light to the crash spanned roughly eight blocks—less than half a mile.

The pursuit violated Philadelphia Police Department policy, which restricts vehicle pursuits to circumstances involving prevention of death or serious bodily injury, forcible felonies, or suspects with deadly weapons. Ellison’s suspected conduct (drug dealing) did not, on its face, fall within those categories.

B. Procedural History

Otero sued under § 1983 and state law, asserting that the officers, by initiating and continuing a high-speed pursuit in a dense, urban area during morning rush hour, “consciously disregarded a great risk of serious harm” to Martinez, thereby violating her substantive due process rights under the Fourteenth Amendment. The parties consented to proceed before a magistrate judge in the Eastern District of Pennsylvania.

The officers moved for partial summary judgment on the § 1983 claim, arguing:

They lacked the requisite intent to harm necessary for constitutional liability in a high-speed chase; and
They were entitled to qualified immunity because no clearly established right forbade their conduct under the circumstances.

The magistrate judge accepted that there was no evidence of intent to harm, but nonetheless denied summary judgment both on the merits and on qualified immunity. He concluded that it was for a jury to decide whether the officers had sufficient time to deliberate so that a lesser standard—“conscious disregard of a great risk of serious harm”—should apply, and he determined that the general “shocks the conscience” standard was clearly established.

Recognizing the legal significance of these issues, the magistrate judge certified an interlocutory appeal under 28 U.S.C. § 1292(b), and the officers appealed. The Third Circuit reviews the denial of summary judgment de novo.

C. Holding

The Third Circuit issues two principal holdings:

On the merits: The relevant portion of the chase was “hyperpressurized” and required “split-second” decisionmaking. Under County of Sacramento v. Lewis and the Third Circuit’s own precedents, the applicable substantive due process standard is intent to harm, not mere reckless or conscious disregard. Because Otero offers no evidence that the officers intended to harm Martinez (or anyone else), the claim fails as a matter of law. The court reverses and remands with instructions to enter partial summary judgment for the officers on the § 1983 count.
Qualified immunity (alternative holding): Even assuming a constitutional violation, the officers are protected by qualified immunity. When the right is properly defined at a granular level—focusing on an officer’s pursuit of a dangerous, actively fleeing suspect involved in serious criminal conduct—no Supreme Court, Third Circuit, or consensus appellate authority had clearly established that such a pursuit, conducted as here, violated substantive due process. Sauers v. Borough of Nesquehoning is distinguishable and cannot be read to overrule Lewis. Thus, the officers could not reasonably have known their conduct was unconstitutional.

III. The Court’s Doctrinal Framework

A. The “Shocks the Conscience” Requirement

The Fourteenth Amendment’s substantive due process clause is not a generic vehicle for converting tort claims into federal constitutional claims. Instead, plaintiffs must show conduct that is so egregious that it “shocks the conscience.” That standard is particularly stringent when the claim is that state actors, through their affirmative conduct, created or increased the danger to a private individual—often referred to in the Third Circuit as the “state-created danger” theory.

In this case, the court explicitly adopts and applies a three-tiered culpability framework, drawn from Sauers v. Borough of Nesquehoning and Haberle v. Troxell, which calibrates the required mental state by reference to how much time officers had to decide:

Category 1: “Hyperpressurized” / split-second decisions – When officers must react almost instantaneously to rapidly evolving circumstances, liability attaches only if they intended to harm the victim.
Category 2: “Hurried deliberation” / minutes or hours – When officers have some time, but not unlimited time, to deliberate in an emergent situation, liability can arise for consciously disregarding a great risk of serious harm.
Category 3: “Unhurried” / careful deliberation – When officers have ample time to make decisions in non-emergency conditions, standard deliberate indifference principles apply.

This framework reflects the Supreme Court’s instruction in Lewis that courts must consider the “luxury of hindsight” and the realities of policing, recognizing that officers in emergency situations cannot be held to the same reflective standards as policymakers or officials operating in leisurely settings.

B. High-Speed Pursuits as a Classic Category 1 Situation

The court positions most police pursuit cases—especially those involving high speeds and fleeing suspects—as falling into Category 1, triggering the most demanding intent-to-harm standard. To support this, it invokes:

County of Sacramento v. Lewis, 523 U.S. 833 (1998). In Lewis, officers pursued a motorcycle at speeds up to 100 mph through a residential neighborhood. The 75-second chase ended when the police car struck and killed a passenger after the motorcycle tipped over. The Supreme Court held that, in the context of a high-speed chase, substantive due process is violated only when officers act with a purpose to cause harm unrelated to legitimate law enforcement objectives—i.e., an intent to harm physically or worsen the suspect’s legal plight. Anything less, including recklessness, does not “shock the conscience.”
Davis v. Township of Hillside, 190 F.3d 167 (3d Cir. 1999). The Third Circuit previously applied Lewis in a case where a fleeing vehicle sped through a residential neighborhood at up to 70 mph, later crashing into a bystander. The court held that absent intent to injure, no substantive due process violation lies—even where the officers violated police regulations during the pursuit.

By contrast, the court emphasizes that Sauers involved a markedly different situation, more characteristic of Category 2:

The suspect there had committed only a summary traffic offense.
There was no pending emergency, no indication the suspect posed a danger, and no sign of active flight in the Lewis-sense.
Other officers were positioned ahead, suggesting that the pursuing officer had at least “some time to deliberate” whether and how to engage.

In Sauers, the court therefore applied the “conscious disregard of a great risk” standard, not the intent-to-harm standard. But, as Otero stresses, Sauers neither supplanted nor undermined Lewis in the core category of high-speed pursuits involving dangerous, actively fleeing suspects.

IV. Key Legal Issues and the Court’s Reasoning

A. When Does the “Clock” Start for Assessing Culpability?

A central point of dispute was how to determine the relevant time frame for characterizing the officers’ conduct as either “hyperpressurized” (Category 1) or deliberative (Category 2). The officers emphasized the 39 seconds between Ellison’s first clearly dangerous maneuver (driving the wrong way down a one-way street and running a red light) and the crash. The magistrate judge declined to select a starting point, suggesting that a jury should decide whether the earlier seven-block “normal-speed” following period should be counted, and expressing concern that starting later would make “every police chase” appear hyperpressurized.

The Third Circuit rejects that approach and provides a clear rule:

“Our precedent starts running the clock when, in the totality of the circumstances, an event occurs that requires officers to decide whether to pursue a suspect dangerously.”

In other words:

Merely following a suspect at normal speeds, even with lights and sirens, is not inherently dangerous to the public.
The constitutional analysis focuses on the moment officers must decide whether to escalate to, or remain engaged in, a dangerous pursuit.

The court anchors this rule in prior case law:

In Davis, the focus was not when the officers first approached the suspect’s car, but on the “instantaneous” decision to accelerate once the suspect sped away.
In Lewis, the Supreme Court characterized the officer’s decision to chase the motorcycle once it sped off as “practically instantaneous,” even though the overall chase lasted 75 seconds over 1.3 miles.
In Sauers, the officer had time to “contemplate” and “deliberate” before deciding “whether and how to pursue,” justifying application of the lower standard.

Applying that timing rule here, the court identifies the relevant “start” of the hyperpressurized period as the moment Ellison began to drive dangerously—running the red light, traveling the wrong way down a one-way street, and then accelerating to double the speed limit. At that point, the officers had, at most, seconds to decide whether to follow or break off; the context is thus quintessential Category 1.

B. Culpability Standard Applied: No Liability Without Intent to Harm

Once the court classifies the situation as Category 1, the doctrinal consequence follows: only intent to harm suffices to “shock the conscience.”

The key statements:

“This case is far more like Lewis and Davis than Sauers.”
“When Ellison gunned it through the first red light and began to ‘actively flee[ ],’ his flight became dangerous, and the officers had a split second to either follow suit or let him get away.”
“So this case falls into the first Category.”

Even examining the entire dangerous portion of the chase—from Ellison’s first red-light violation to the crash—the court notes that the time span and distance are shorter than in Lewis, reinforcing that this was a fast-moving emergency situation.

Crucially, the court agrees with the magistrate judge that no evidence supports an inference that the officers intended to harm Martinez, Ellison, or anyone else. They were trying to apprehend a drug dealer who was already driving dangerously and refusing to comply with their efforts to stop him. Under Lewis, that intent to apprehend—even if negligent or reckless in execution—does not equate to an intent to cause harm for constitutional purposes.

As a result, the officers’ conduct, even if ill-advised or in violation of policy, does not reach the level of a Fourteenth Amendment violation. The court explicitly reiterates the principle from Davis:

“It did not matter [in Davis] that, by chasing the car, the officers had violated police regulations. … Here, as in Davis, it does not matter that the officers violated police department rules. The officers still lacked the requisite intent, so they cannot be liable for violating Martinez’s constitutional rights.”

C. Internal Policy Violations and Constitutional Standards

A notable aspect of the opinion is its clear separation between:

Departmental policy (e.g., Philadelphia’s restrictive vehicle pursuit rules), and
Federal constitutional standards under the Fourteenth Amendment.

The court underscores that violating internal policy does not automatically translate into violating the Constitution. While internal policies may be more protective of public safety than the constitutional minimum, § 1983 liability requires crossing the much higher bar of conduct that “shocks the conscience” under the applicable culpability standard.

Thus, even though the officers violated the City’s pursuit restrictions (since Ellison was a drug suspect, not a forcible felon or armed suspect, and the chase posed risks to the public), that violation:

May have employment or administrative ramifications;
May be relevant to state-law negligence or wrongful-death claims; but
Does not, without more, amount to a federal substantive due process violation absent intent to harm in this Category 1 context.

D. Qualified Immunity: Defining the Right and Clear Establishment

Even beyond the merits, the court holds that qualified immunity shields the officers from suit. Qualified immunity involves a two-step inquiry:

Did the officers violate a constitutional right?
Was that right “clearly established” at the time of the conduct?

Courts may address these steps in either order. Here, after concluding no violation occurred, the Third Circuit nonetheless proceeds to address the “clearly established” prong, creating an alternative holding.

1. Properly Defining the Right

The court criticizes the magistrate judge for stopping at the abstract level of “shock-the-conscience” and for failing to define the right at the required level of specificity. Citing Sauers, the court emphasizes that rights in the qualified immunity context must be framed “in light of the specific context of the case, not as a broad general proposition.”

In Sauers, the Third Circuit had defined the relevant right narrowly 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.”

Mirroring that approach, the court defines the right in Otero as:

“one not to be injured or killed as a result of an officer’s recklessly pursuing an individual suspected of drug dealing or a comparably serious crime who is driving dangerously and actively fleeing the police.”

This precise formulation underscores the legally relevant facts:

The nature of the underlying suspected offense (drug dealing, not a minor traffic infraction);
The suspect’s “dangerous” driving;
The “active fleeing” nature of the suspect’s conduct; and
The characterization of the pursuit as “reckless,” i.e., without intent to harm but with elevated risk.

2. Was This Right Clearly Established?

The court then asks whether this specific right was clearly established as of the time of the incident. A right is clearly established only if:

Supreme Court precedent,
binding Third Circuit precedent,
or a robust consensus of other circuits

has placed the constitutional question “beyond debate,” citing Ashcroft v. al-Kidd, 563 U.S. 731 (2011).

The court concludes it was not. The principal reason: Sauers—the case on which the magistrate relied—is materially different and does not control this context. Sauers involved:

A suspect who had committed only a summary traffic offense;
No emergency;
No evidence that the suspect was actively fleeing or endangering the public when the pursuit decision was made; and
Evidence that the officer had some time to reflect before initiating or continuing a high-speed chase.

By contrast, Otero involves:

A suspect engaged in drug dealing, a more serious crime;
Dangerous, ongoing flight through red lights, a one-way street, and at double the speed limit; and
An extremely compressed time frame for decision-making.

Moreover, Lewis—a Supreme Court case—squarely states that in high-speed chases involving fleeing suspects, the requisite standard is intent to harm. Nothing in Sauers purports to overrule or alter that standard in cases where suspects are fleeing dangerously. As the court notes:

“What is more, for police chases like the one here, Lewis requires intent to harm. Sauers did not and could not overrule it. We cannot say that Sauers ‘placed the … constitutional question beyond debate.’”

Accordingly, a reasonable officer in Kane’s or Hernandez’s position could not have been on notice that pursuing a dangerous, actively fleeing drug suspect in this short, intense window would violate clearly established substantive due process rights. Qualified immunity therefore independently bars the claim.

V. Complex Concepts Simplified

A. “Shocks the Conscience”

The “shocks the conscience” test is a way of saying that not every wrong, or even every serious mistake by government officials, is a constitutional violation. To “shock the conscience,” the conduct must be:

Extremely egregious;
So brutal or offensive as to offend even hardened sensibilities; or
So unjustifiable that it cannot be squared with any legitimate governmental purpose.

In emergency situations like high-speed chases, courts recognize that officers must make instant decisions. The law gives them more leeway, requiring proof of an intent to harm, not merely poor judgment or even recklessness.

B. Categories of Culpability

The three categories used by the court can be thought of in plain terms:

Instant decision (Category 1): The officer must decide in a split second, with very little time to think. Only truly malicious or sadistic behavior—trying to hurt someone—counts as a constitutional violation.
Rushed but not instantaneous (Category 2): The officer has some time to weigh options but not a lot. If the officer consciously takes a serious risk of hurting someone—that is, sees the risk and disregards it—that can violate the Constitution.
Plenty of time (Category 3): The officer or official has time to consult, plan, and evaluate. Here, if they are deliberately indifferent—essentially, knowing about a serious risk and doing nothing—they may be liable.

C. Qualified Immunity

Qualified immunity is a doctrine that protects government officials from being sued for money damages unless:

They violated a constitutional right; and
That right was clearly established at the time of their conduct, such that any reasonable official would have known it was unlawful.

This is meant to balance two interests:

Allowing people to recover when their rights are clearly violated; and
Protecting officials from personal liability when the law is uncertain, so they can do their jobs without fear of constant litigation.

In practice, this means plaintiffs must point to cases with similar facts where courts have already said the conduct is unconstitutional—or show such a strong consensus in the case law that it is “beyond debate” that the conduct is unlawful.

VI. Impact and Significance

A. For Substantive Due Process and Police Pursuits

Otero v. Kane is significant in refining the application of substantive due process to police pursuits in the Third Circuit:

It confirms that most high-speed pursuits of actively fleeing, dangerous suspects fall under Category 1, requiring proof of intent to harm for a constitutional violation.
It narrows the reach of Sauers, clarifying that its “conscious disregard” standard is limited to non-emergency, non-fleeing scenarios (e.g., reckless chasing of a driver who is not actively fleeing and poses minimal immediate danger).
It introduces a clear, administrable rule for when to “start the clock”: courts must focus on the moment officers are forced to choose whether to pursue “dangerously,” not on the entire duration of observational following.

As a practical matter, plaintiffs bringing § 1983 claims arising from police chases that injure or kill bystanders will now face a very high bar in the Third Circuit unless they can:

Show that officers had substantial time to weigh options before engaging in risky behavior (Category 2 or 3); or
Produce evidence suggesting that officers pursued with a purpose to cause harm unrelated to legitimate law enforcement objectives (Category 1, but with malicious intent).

B. For Internal Police Policies vs. Constitutional Standards

The decision reinforces the longstanding distinction between:

Violations of internal agency policy; and
Violations of federal constitutional rights.

While agencies like the Philadelphia Police Department may adopt restrictive pursuit policies to reduce public risk and civil liability, those policies do not elevate the constitutional standard. Violating a pursuit policy may support:

Departmental discipline; or
State tort liability;

but not, standing alone, § 1983 liability for a substantive due process violation.

C. For Qualified Immunity Doctrine

Otero also underscores an increasingly strict approach to qualified immunity:

It insists that the “right” at issue must be defined narrowly and concretely, not at a high level of generality such as “a right not to be subjected to reckless government conduct.”
It shows the Third Circuit’s willingness to issue alternative holdings on qualified immunity, thereby shaping future litigation even where no violation is found.
It illustrates how lower courts should distinguish between superficially similar cases like Sauers and the instant case based on nuances such as the seriousness of the crime, presence of an emergency, and active flight.

This makes it more challenging for plaintiffs to overcome qualified immunity in police pursuit cases unless they can identify precedent with very similar factual patterns where liability was found.

D. For Future Litigation in the Third Circuit

Going forward, Otero v. Kane will likely:

Be cited in nearly every § 1983 action involving injuries to third parties during police chases, particularly to support summary judgment where:
- The suspect was fleeing dangerously; and
- The time frame was short and high-pressure.
Serve as a doctrinal anchor clarifying the line between Lewis (intent-to-harm standard) and Sauers (conscious-disregard standard).
Guide district courts in properly defining “clearly established” rights and avoiding reliance on overly generalized statements of law in the qualified immunity context.

The decision also implicitly encourages litigants to focus § 1983 state-created-danger theories in pursuit cases on non-emergency, non-fleeing contexts, or on pre- or post-pursuit conduct where officers may have had greater time to deliberate.

VII. Conclusion

Otero v. Kane is a clarifying and constraint-imposing decision in the law of police pursuit liability under the Fourteenth Amendment. The Third Circuit:

Reaffirms County of Sacramento v. Lewis as the governing standard for high-speed pursuits involving dangerous, fleeing suspects, requiring proof of an intent to harm for substantive due process liability;
Distinguishes and limits Sauers to situations where officers have time to deliberate before initiating or continuing a dangerous pursuit of a non-dangerous, non-fleeing suspect;
Articulates a practical rule for when to “start the clock” in assessing the pressure and timing of an officer’s decision to pursue dangerously; and
Emphasizes the necessity of precise right-definition and close factual analogies in the qualified immunity analysis, ultimately affording officers immunity in this case.

The court’s conclusion is both legal and policy-laden: tragic outcomes from police chases, such as the death of an innocent bystander, do not automatically create constitutional liability. The Constitution sets a high threshold—particularly in split-second, life-and-death policing decisions. While internal policies and state law may impose additional duties and consequences, § 1983 and substantive due process remain reserved for the most egregious and conscience-shocking official misconduct.