JOSHUA OTERO, as Administrator of the Estate of Virgen Martinez, Deceased v. Police Officer Christian Kane

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 24-2907
_______________
JOSHUA OTERO, as Administrator of the Estate of
Virgen Martinez, Deceased
v.
POLICE OFFICER CHRISTIAN KANE; POLICE OFFICER
ALEXANDER HERNANDEZ; CITY OF PHILADELPHIA;
TAHIR ELLISON
Police Officer Alexander Hernandez; Police Officer
Christian Kane,
Appellants
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:22-cv-04141)
Magistrate Judge: Honorable Scott W. Reid
_______________
Argued: September 16, 2025
Before: BIBAS, MONTGOMERY-REEVES, and AMBRO,
Circuit Judges

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(Filed: December 5, 2025)
Adam R. Zurbriggen [Argued]
CITY OF PHILADELPHIA
LAW DEPARTMENT
17th Floor
1515 Arch Street
Philadelphia, PA 19102
Counsel for Appellants
Charles L. Becker
Kimberly M. Collins
Ruxandra M. Laidacker [Argued]
Helen A. Lawless
KLINE & SPECTER
1525 Locust Street
19th Floor
Philadelphia, PA 19102
Counsel for Appellee
Kelly J. Fox
GEROLAMO MCNULTY DIVIS & LEWBART
121 S Broad Street
Suite 1400
Philadelphia, PA 19107
Counsel for Appellee
_______________
OPINION OF THE COURT
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BIBAS, Circuit Judge.
Every day, police officers make snap judgments to chase
dangerously fleeing suspects. During the chase, regrettably,
bystanders sometimes get hurt. Yet officers are not constitu-
tionally liable for those injuries unless their judgments are not
just mistaken but egregious, shocking the conscience.
Here, Philadelphia police officers witnessed drug deals.
The dealer took off, running a red light and driving fast and
dangerously; the officers made a split-second decision to chase
him. That chase stopped when the dealer crashed into another
car, killing an innocent bystander. The bystander’s son is suing
the officers for recklessly endangering others and so violating
the Fourteenth Amendment by giving chase. But because the
officers did not intend to harm anyone, we will reverse and
instruct the District Court to enter partial summary judgment
for the officers.
I. POLICE CHASED A DRUG DEALER, WHO CRASHED
INTO AND KILLED A BYSTANDER
One morning, Officers Christian Kane and Alexander
Hernandez were dispatched to Philadelphia’s Kensington
neighborhood to investigate drug dealing. Arriving in a marked
police car, they saw a large crowd gathered around an SUV and
someone handing out small items to the crowd. Officer Her-
nandez got out of the car, walked toward the crowd, and made
eye contact with the SUV’s driver, Tahir Ellison. Ellison then
drove off.
Hernandez got back in the police car, and the officers fol-
lowed Ellison at a normal speed. They turned on the police

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lights, sounded the siren several times, and followed for seven
blocks, but he did not pull over. Then he blew through a red
light, and so did the officers. Ellison turned the wrong way
down a one-way street, and the officers followed. Next, he
turned onto a major avenue and sped up, going roughly twice
the 30-mile-per-hour speed limit. The officers followed almost
as fast, reaching 55 miles per hour. When Ellison ran another
red light, he crashed into Virgen Martinez’s car, killing her.
Ellison later pleaded guilty to third-degree murder, aggravated
assault, and driving under the influence of marijuana.
The officers’ chase, especially the dangerous part of it, was
brief. From the time Ellison turned the wrong way down the
one-way street to the crash, only 39 seconds passed. From run-
ning the first red light to the crash, they covered eight blocks—
less than half a mile. However brief, the chase violated Phila-
delphia Police Department policy, which authorizes car chases
only when needed to “prevent … death or serious bodily injury,”
“stop a suspect who attempted a forcible felony,” or “stop a
suspect who [has] a deadly weapon.” JA 11.
Joshua Otero, Martinez’s son and the representative of her
estate, sued the officers and others under 42 U.S.C. § 1983 as
well as state law. He alleged that by chasing Ellison at high
speed in a densely populated neighborhood during the morning
rush hour, the officers had “consciously disregarded a great
risk of serious harm” to Martinez, causing her death. Supp.
App. 16 ¶ 63. This, Otero asserted, violated Martinez’s Four-
teenth Amendment right to substantive due process. The par-
ties consented to proceed before a magistrate judge.

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The officers moved for partial summary judgment, insisting
that they never intended to harm anyone and that they deserved
qualified immunity. Though the magistrate agreed that there
was no evidence of intent to harm, he denied summary judg-
ment both on the merits and on qualified immunity. But he cer-
tified an interlocutory appeal of these issues to us under 28
U.S.C. § 1292(b). We review de novo. Bayer v. Monroe Cnty.
Child. & Youth Servs., 577 F.3d 186, 191 (3d Cir. 2009).
II. BECAUSE THE OFFICERS DID NOT INTEND TO HARM,
THEY CANNOT BE LIABLE
A. The culpability standard depends on how much
time police have to decide
When a private person (like Ellison) harms another private
person (like Martinez), police are seldom liable under the Four-
teenth Amendment. To be liable for creating a danger that vio-
lated someone’s constitutional rights, police must act so culpa-
bly that their behavior “shocks the conscience.” Sauers v.
Borough of Nesquehoning, 905 F.3d 711, 717 (3d Cir. 2018).
This culpability standard turns on timing—the less time an
officer has to act, the less blameworthy a flawed decision is.
We have recognized three categories of culpability:
1) If the situation was “hyperpressurized,” requiring
“split-second decisions,” the officer is not liable unless
he intended to harm.
2) If the situation gave the officer hours or minutes to
engage in “hurried deliberation,” the officer is not lia-
ble unless he “consciously disregarded … a great
risk of serious harm.”

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3) If the situation was “unhurried” and left time for
“careful deliberation,” the officer can be liable if he
was “deliberately indifferent” to the risk of harm.
Id. at 717–18 (cleaned up); Haberle v. Troxell, 885 F.3d 170,
177 (3d Cir. 2018) (cleaned up).
Most police chases fall into Category 1, triggering the intent-
to-harm standard. In the leading case on point, a motorcyclist
sped away from police at up to 100 miles per hour through a
residential neighborhood. Police chased the motorcycle for 75
seconds over 1.3 miles until it tipped over and the police car
hit the motorcycle passenger, killing him. Cnty. of Sacramento
v. Lewis, 523 U.S. 833, 837 (1998). The Supreme Court “h[e]ld
that,” when officers pursue suspects in “high-speed chases,”
their level of culpability does not shock the conscience unless
they “inten[d] to harm suspects physically or to worsen their
legal plight.” Id. at 854. Likewise, when a car took off through
a residential neighborhood at up to 70 miles per hour before
crashing into a bystander, police were not liable because they
had not intended to injure anyone. Davis v. Twp. of Hillside,
190 F.3d 167, 169, 170–71 (3d Cir. 1999). It did not matter
that, by chasing the car, the officers had violated police regu-
lations. Id. at 170. In both cases, the officers had mere moments
to decide whether to pursue, so both fit comfortably in Cate-
gory 1. Id. at 171 (officers’ decision was “instantaneous”);
Lewis, 523 U.S. at 855 (officer’s response was “practically
instantaneous”).
But when police have more time and freedom to choose,
the culpability standard is lower. In another case, an officer saw
a driver commit a summary traffic offense. The officer had

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time to deliberate. There was no sign that the driver was fleeing
the officer, posed a danger, or knew he was being chased. And
other police officers waited to intercept him down the highway.
Even so, the officer recklessly chased him at more than 100
miles per hour, lost control around a curve, and smashed into
another car, injuring its driver and killing its passenger. Sauers,
905 F.3d at 715. The officer “had at least some time to delib-
erate” about whether and how to give chase, “there was no
emergency,” and the suspect was not “actively fleeing” or “en-
dangering the public.” Id. at 718. Thus, we applied Category
2’s conscious-disregard standard, holding that the officer could
be liable for driving recklessly. Id.
B. We start the clock when officers must choose
whether to endanger the public
To figure out the relevant timeframe for culpability, we
need to know when to start the clock. The officers focus on the
little more than 39 seconds from when Ellison ran the first red
light to when he crashed into Martinez. The magistrate judge
refused to pick a starting time, concluding that a jury should
decide whether to count the first seven blocks. Otherwise, he
feared, every police chase would be hyperpressurized, requir-
ing intent to harm.
We disagree. Officers cannot be liable for following a sus-
pect lawfully and safely at an ordinary speed. Nothing about
following a suspect or turning on police lights and a siren is
inherently risky or dangerous to the public.
Rather, 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

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Davis, for example, we focused not on when police first pulled
alongside the suspect’s car, but on their “instantaneous” deci-
sion to speed up once the suspect did. 190 F.3d at 171; accord
Lewis, 523 U.S. at 855 (describing officer’s decision to chase
motorcycle once it sped off as “practically instantaneous,”
even though whole chase took 75 seconds and spanned 1.3
miles). By contrast, the officer in Sauers “had at least some
time to deliberate before deciding whether and how to pursue.”
905 F.3d at 718 (cleaned up; emphasis added). Because he had
time to “contemplat[e]” his choice, he could be liable for
choosing recklessly. Id.
C. The officers are not liable because they did not
intend to harm anyone
This case is far more like Lewis and Davis than Sauers. The
suspect was fleeing and ignoring signals to stop, so the officers
had no time to waste. When Ellison gunned it through the first
red light and began to “actively flee[ ],” his flight became dan-
gerous, and the officers had a split second to either follow suit
or let him get away. Id. So this case falls into the first Category.
Even if we look beyond that moment, the result is the same.
After Ellison ran the first red light, the chase covered less than
half a mile and ran less than a minute—shorter and quicker
than the chase in Lewis. Either way, Otero must show intent to
harm. But as the magistrate judge recognized, he cannot. And
here, as in Davis, it does not matter that the officers violated
police department rules. 190 F.3d at 170. The officers still
lacked the requisite intent, so they cannot be liable for violating
Martinez’s constitutional rights.

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III. IN ANY EVENT, QUALIFIED IMMUNITY
SHIELDS THE OFFICERS
Even if the officers had violated the Fourteenth Amend-
ment, qualified immunity would shield them from liability. To
apply qualified immunity, we must first define the right specif-
ically, based on the particular facts. Sauers, 905 F.3d at 716.
The magistrate judge never did so explicitly. He just noted that
the general shock-the-conscience standard was clearly estab-
lished. That is not enough.
Sauers modeled how to do this step. There, we defined the
right as “one not to be injured or killed as a result of a police
officer’s reckless pursuit of an individual suspected of a sum-
mary traffic offense when there is no pending emergency and
when the suspect is not actively fleeing the police.” Id. at 717
(emphases added). Following that example, we define the right
here 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.
Next, we must figure out if a reasonable officer would have
been on notice that his conduct would violate that right. A right
is not clearly established unless “Supreme Court precedent, our
own precedent, or a consensus of authority among the courts
of appeals placed that right beyond debate.” Id. at 719. Because
the magistrate judge did not define the right specifically
enough, he did not see that no case has clearly established the
relevant right. Sauers is distinguishable; it dealt with neither a
dangerously fleeing driver nor a criminal suspect (setting aside
the minor traffic infraction). 905 F.3d at 715–16. What is more,

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for police chases like the one here, Lewis requires intent to
harm. 523 U.S. at 837, 854. Sauers did not and could not over-
rule it. We cannot say that Sauers “placed the … constitutional
question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011). So qualified immunity shields the officers.
* * * * *
The events of that morning, and Martinez’s death, were
tragic. But Officers Kane and Hernandez are not liable for
Ellison’s reckless flight. They made a snap judgment to chase
a drug dealer fleeing dangerously through the streets of Phila-
delphia. We ask not whether in hindsight they chose rightly,
but whether they intended to cause harm. Because they did not,
the U.S. Constitution and § 1983 provide no remedy. We will
reverse and remand with instructions to enter partial summary
judgment for the officers on Count I.

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