FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIGE BINGUE, an individual;
MARJORIE BINGUE, an individual;
No. 05-16388
and DONALD HOUSE, an individual,
Plaintiffs-Appellees,
D.C. No.
CV-04-01085-JCM
v.
OPINION
ELI PRUNCHAK, individually,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
June 14, 2007—San Francisco, California
Filed January 15, 2008
Before: Jay S. Bybee, Milan D. Smith, Jr., and
N. Randy Smith, Circuit Judges.
Opinion by Judge Bybee
475
478 BINGUE v. PRUNCHAK
COUNSEL
Thomas D. Dillard, Jr. & Felicia Galati, Rawlings, Olson,
Cannon, Gormley & Desruisseaux, Las Vegas, Nevada, for
the appellant.
Anthony P. Sgro, Steven K. Lewis & Maria Loventime
Estanislao, Patti & Srgo, Las Vegas, Nevada, for the appel-
lees.
OPINION
BYBEE, Circuit Judge:
In Onossian v. Block, we applied the Supreme Court’s deci-
sion in County of Sacramento v. Lewis, 523 U.S. 833 (1998),
and held that a police officer in a high-speed chase—whether
he injures the fleeing suspect or a bystander—is entitled to
qualified immunity unless his behavior “shocks the con-
science” because it demonstrates an intent “to cause harm
unrelated to the legitimate object of arrest.” 175 F.3d 1169,
1171 (9th Cir. 1999) (internal quotation marks omitted). We
were not called upon to consider whether the district court
must apply this “intent to harm” standard to all high-speed
chases, or only those chases that involve “emergencies” or
“split-second decisions.” Today we refine our Onossian anal-
ysis and hold, following the Eighth Circuit, that police offi-
BINGUE v. PRUNCHAK 479
cers involved in all high-speed chases are entitled to qualified
immunity under 42 U.S.C. § 1983 unless the plaintiff can
prove that the officer acted with a deliberate intent to harm.
See Helseth v. Burch, 258 F.3d 867 (8th Cir. 2001) (en banc).
The officer involved in the high-speed chase in this case is
entitled to summary judgment based on step one of the quali-
fied immunity analysis as set forth in Saucier v. Katz, 533
U.S. 194 (2001). We thus reverse the judgment of the district
court.
I. BACKGROUND
At approximately 3:41 p.m., on November 29, 2003, offi-
cers with the Las Vegas Metropolitan Police Department
(“LVMPD”) attempted to pull over a stolen Toyota Camry.
When the driver refused to stop, a police chase ensued. The
chase would last an hour, cover nearly 90 miles, and involve
at least a dozen units and a helicopter. Officer Eli Prunchak
was at a car dealership “ordering a new door panel for [his]
patrol vehicle” when he “heard radio traffic that units were in
pursuit of a stolen vehicle . . . heading southbound on Boulder
Highway.” Based on the radio traffic, Prunchak “thought that
[he] was close enough to the pursuit that [he] had a good
chance of catching up to it and assisting other officers in
apprehension of the suspects.” Ten minutes after LVMPD
first attempted to stop the Toyota, it entered the southbound
lanes of the U.S. 95, a major north-south freeway. At that
point, Prunchak “still thought that [he] was close enough to
help and did not know at the time how many other units were
in pursuit.” Calculating that he was “still approximately a half
mile to a mile behind the pursuit,” Prunchak, with emergency
lights active, entered the left lane of southbound U.S. 95.
At about the same time, Edwige Bingue, and her mother,
Marjorie Bingue (collectively “Bingue”), were traveling on
southbound U.S. 95 when they saw several police units in
pursuit of the Toyota.1 Bingue moved to the right to avoid
1
A third plaintiff, Donald House, is Edwige Bingue’s husband. He was
not involved in the accident.
480 BINGUE v. PRUNCHAK
those units, and the units safely passed. Minutes later,
Prunchak approached—traveling “somewhere around 100
miles per hour”—and while rounding “a long, wide, left curve
. . . felt [his] tires slip from underneath [him] and [his] patrol
vehicle . . . drift[ ] into the number-two lane.” Though there
were no cars in the number two lane when Prunchak
attempted to regain control of his car, he quickly drifted into
the number-three lane and “sideswiped” the driver’s side of
Bingue’s Mercedes. Both vehicles spun out of control and
came to rest on the divider between the north and southbound
lanes of the freeway. Realizing he was not seriously injured,
Prunchak immediately moved to assist Bingue, who was “ex-
tremely shaken up, but did not appear to have serious inju-
ries.” Shortly after, another unit arrived and relieved
Prunchak. Police ultimately stopped the Toyota with spike
strips2 just a few miles from the California border and arrested
its three occupants.
Bingue filed this suit in state court against Prunchak,
LVMPD, and others alleging state law negligence and, pursu-
ant to 42 U.S.C. § 1983, violations of the Fifth and Fourteenth
Amendments.3 The case was removed to federal court, where
Prunchak moved, on qualified immunity grounds, for partial
judgment on the pleadings on Bingue’s federal claims. The
district court denied the motion in a very short order finding
“that the issue of what standard to apply [to Bingue’s claims]
—(1) the ‘intent to harm’ standard or (2) the ‘deliberate
indifference’—to determine whether there is a substantive due
process violation is a fact-based inquiry that looks at whether
deliberation was practical” and that “[Bingue has] demon-
2
Spike strips, also known as tire spikes, are law enforcement devices
used to stop suspects fleeing by car. The “spikes” are hollow metal tubes
that pierce the tires and cause rapid deflation without explosion. See, e.g.,
United States v. Payan-Valenzuela, Civil No. 06CR2158 JM, 2007 U.S.
Dist. LEXIS 68360, at *6 (S.D. Cal. Sept. 14, 2007).
3
Bingue originally brought a claim under the Fourth Amendment, but
concedes that she “abandoned the Fourth Amendment claim by not
addressing it below.” We, therefore, decline to address this claim here.
BINGUE v. PRUNCHAK 481
strated substantial questions of material fact as to whether
[Prunchak] had opportunity to deliberate.” Prunchak timely
appealed.
II. JURISDICTION
Bingue argues that we lack jurisdiction to adjudicate the
issue of whether Prunchak is entitled to qualified immunity as
this is an interlocutory appeal, and our review of such appeals
is limited to legal issues. Relying on the district court’s char-
acterization of the issue as one of “fact,” Bingue argues that
our review is limited to the question of “whether the facts
alleged support . . . a claim of a violation of clearly estab-
lished law.” Perez v. Unified Gov’t of Wyandotte County, 432
F.3d 1163, 1166 (10th Cir. 2005), cert. denied, 126 S. Ct.
2971 (2006) (internal quotations and citations omitted, alter-
ation in original).4 We review challenges to our jurisdiction
over such interlocutory appeals de novo and reject Bingue’s
argument. See Wilkins v. City of Oakland, 350 F.3d 949, 954
(9th Cir. 2003) (“We review de novo . . . [an] appeal from a
denial of summary judgment based on qualified immunity.”);
Rosales-Rosales v. Ashcroft, 347 F.3d 714, 716 (9th Cir.
2003) (“We determine our own jurisdiction de novo.”).5
4
Prunchak’s motion for qualified immunity arises under Federal Rule of
Civil Procedure 12(c), which, as newly amended, provides that “[a]fter the
pleadings are closed—but early enough not to delay trial—a party may
move for judgment on the pleadings.” Since the parties have presented
“matters outside the pleadings,” Prunchak’s “motion [is] treated as one for
summary judgment under Rule 56.” FED. R. CIV. P. 12(d). (We quote from
the new amendment, effective December 1, 2007. The amendment is “part
of the general restyling of the Civil Rules to make them more easily
understood . . . . The[ ] changes are intended to be stylistic only.” FED. R.
CIV. P. 12, advisory committee note (2007 Amendment).)
5
As a preliminary matter, we have jurisdiction to determine our own
jurisdiction. See Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 992
(9th Cir. 2004). Any other rule would place the court and potential liti-
gants in an untenable “Catch-22” situation, stripping the courts of the abil-
ity to weigh and consider the merits of the jurisdictional argument, and
depriving citizens of a fair adjudication of their claims.
482 BINGUE v. PRUNCHAK
Bingue’s argument, presumably, arises from the general
principle that the denial of a motion for judgment on the
pleadings or “summary judgment is not ordinarily an appeal-
able order,” and that when such orders are appealable, as in
the qualified immunity context, our jurisdiction is “limited to
questions of law and does not extend to claims in which the
determination of qualified immunity depends on disputed
issues of material fact.” Jeffers v. Gomez, 267 F.3d 895, 903
(9th Cir. 2001) (per curiam).
[1] While this general principle stands, the “denial of sum-
mary judgment on qualified immunity grounds is not always
unappealable simply because the district court concludes that
the issues of fact in dispute are material.” Thomas v. Gomez,
143 F.3d 1246, 1248 (9th Cir. 1998). Indeed, “[w]here dis-
puted facts exist, . . . we can determine whether the denial of
qualified immunity was appropriate by assuming that the ver-
sion of the material facts asserted by the non-moving party is
correct.” Jeffers, 267 F.3d at 903; accord Knox v. Sw. Air-
lines, 124 F.3d 1103, 1107 (9th Cir. 1997). Alternatively, we
may also determine that the disputed facts simply are not
material. See Thomas, 143 F.3d at 1248 (“[A]n appellate court
has jurisdiction to hear an interlocutory appeal where defen-
dants assert that the district court erred in determining that the
disputed facts were material.”).
[2] Applying this rule, we have jurisdiction to determine,
based on the facts alleged by Bingue, whether Prunchak is
entitled to qualified immunity. Accepting the district court’s
implied holding—that a court should wait to determine quali-
fied immunity whenever there is a disputed factual issue—
would eviscerate the very purpose of qualified immunity,
which is “to protect defendants even from defending the
action.” Jeffers, 267 F.3d at 907; see also Scott v. Harris, 127
S. Ct. 1769, 1774 n.2 (2007) (“Qualified immunity is ‘an
immunity from suit rather than a mere defense to liability
. . . .’ Thus, . . . an order denying qualified immunity is imme-
diately appealable even though it is interlocutory . . . .” (quot-
BINGUE v. PRUNCHAK 483
ing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis
in original)); Saucier v. Katz, 533 U.S. 194, 202 (2001) (hold-
ing that “deny[ing] summary judgment any time a material
issue of fact remains on [a § 1983 claim] could undermine the
goal of qualified immunity to ‘avoid excessive disruption of
government and permit the resolution of many insubstantial
claims on summary judgment.’ ” (quoting Harlow v. Fitzger-
ald, 457 U.S. 800, 818 (1982))). We have jurisdiction to adju-
dicate the merits of this appeal.
III. DISCUSSION
We now turn to the merits of the appeal, whether Prunchak
is entitled to qualified immunity on Bingue’s federal claims.
In making this determination, we apply the Supreme Court’s
two-part sequential test. See Meyers v. Redwood City, 400
F.3d 765, 769-70 (9th Cir. 2005). First, as a “threshold ques-
tion,” we ask whether “[t]aken in the light most favorable to
the party asserting the injury, do the facts alleged show the
[official’s] conduct violated a constitutional right?” Saucier v.
Katz, 533 U.S. 194, 201 (2001). If the answer to the question
is “no,” then no further inquiry is necessary and the official
is entitled to a favorable judgment. Id. “On the other hand, if
a violation could be made out on a favorable view of the par-
ties’ submissions, the next, sequential step is to ask whether
the right was clearly established.” Id. This second step “must
be undertaken in light of the specific context of the case, and
not as a broad general proposition.” Id.
“As in any action under § 1983, the first step is to identify
the exact contours of the underlying right said to have been
violated.” County of Sacramento v. Lewis, 523 U.S. 833, 841
n.5 (1998). Bingue argues that her Fifth and Fourteenth
Amendment substantive due process rights were violated
through arbitrary government action. Specifically, she argues
that Prunchak’s decision to join the high-speed chase was so
callous and reckless as to amount to “an abuse of executive
power so clearly unjustified by any legitimate objective of
484 BINGUE v. PRUNCHAK
law enforcement as to be barred by the Fourteenth Amend-
ment.” Lewis, 523 U.S. at 840. Applying the two-part Saucier
test to each of Bingue’s claims, we conclude that Prunchak is
entitled to judgment and reverse the district court. We address
each of Bingue’s claims in turn.
A. Bingue’s Fifth Amendment Claim
[3] Bingue first argues that Prunchak’s actions run afoul of
the Fifth Amendment. This claim is plainly foreclosed by the
Constitution. Prunchak is a local law enforcement official,
and the Fifth Amendment’s due process clause only applies to
the federal government. See Betts v. Brady, 316 U.S. 455, 462
(1942) (“Due process of law is secured against invasion by
the federal Government by the Fifth Amendment and is safe-
guarded against state action in identical words by the Four-
teenth.”), overruled on other grounds by Gideon v.
Wainwright, 372 U.S. 335 (1963); Castillo v. McFadden, 399
F.3d 993, 1002 n.5 (9th Cir. 2005) (“The Fifth Amendment
prohibits the federal government from depriving persons of
due process, while the Fourteenth Amendment explicitly pro-
hibits deprivations without due process by the several States:
‘nor shall any State deprive any person of life, liberty, or
property, without due process of law.’ ” (quoting U.S. CONST.
amend. XIV) (emphasis in original)). Bingue has no cause of
action under the Fifth Amendment, and the district court erred
in failing to dismiss this claim.
B. Bingue’s Fourteenth Amendment Claim
[4] Bingue’s related Fourteenth Amendment claim is con-
trolled by Lewis, which concerned an alleged Fourteenth
Amendment violation arising out of the death of a motorcycle
passenger who was killed after he was hit by a police car dur-
ing the high-speed pursuit of that motorcycle. See Lewis, 523
U.S. at 836-37. The situation arose when two teenagers failed
to stop at a police officer’s command and, instead, tried to
outrun the officers. Id. The chase ended when the motorcycle
BINGUE v. PRUNCHAK 485
tipped over while attempting a sharp left turn; the motorcycle
driver was thrown clear of the police car, but the passenger
was hit as the police car attempted to brake and skidded into
him at about 40 miles an hour. Id. The Supreme Court framed
the issue as “whether a police officer violates the Fourteenth
Amendment’s guarantee of substantive due process by caus-
ing death through deliberate or reckless indifference to life in
a high-speed automobile chase aimed at apprehending a sus-
pected offender.” Id. It concluded that even reckless or delib-
erate indifference was insufficiently shocking to the
conscience to form the basis for a substantive due process
claim. Reversing our court, the Supreme Court emphasized
“that in such circumstances only a purpose to cause harm
unrelated to the legitimate object of arrest will satisfy the ele-
ment of arbitrary conduct shocking to the conscience, neces-
sary for a due process violation.” Id. The Court concluded that
although the officer may have acted irresponsibly, “there
[was] no reason to believe that” the officer’s reaction was
driven by anything other than his “instinct . . . to do his job
as a law enforcement officer.” Id. at 855. Consequently, the
Court adopted an “intent to harm” standard holding “that
high-speed police 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.
[5] Bingue attempts to avoid this result and distinguish
Lewis on two separate grounds. First, she argues that the cases
are distinguishable because, unlike the plaintiff in Lewis, who
was fleeing on the motorcycle, Bingue was a mere innocent
bystander and, therefore, owed a greater duty of care. We
rejected this argument in Onossian v. Block, 175 F.3d 1169,
1171 (9th Cir. 1999), where we held that Lewis applies to
injuries resulting from a high-speed police chase regardless of
whether the injured victim was a fleeing suspect or an inno-
cent bystander. “As we read the Court’s opinion [in Lewis],
if a police officer is justified in giving chase, that justification
insulates the officer from constitutional attack, irrespective of
486 BINGUE v. PRUNCHAK
who might be harmed or killed as a consequence of the
chase.” Onossian, 175 F.3d at 1171. In order to prove a due
process violation, our case law requires that a bystander
injured in a high-speed police chase “must show that the
behavior of the police in [his] case [meets the Lewis standard
and] ‘shocks the conscience.’ ” Id. at 1172; see also Moreland
v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 372-73 (9th
Cir. 1998) (reasoning by analogy from Lewis that police offi-
cers “did not violate the plaintiffs’ substantive due process
rights to family association when [they] accidently shot and
killed [an alleged bystander], because the officers were
responding to the extreme emergency of public gunfire and
did not intend to commit any harm unrelated to the legitimate
use of force necessary to protect the public and themselves.”).
Second, Bingue argues that Lewis’ “intent to harm” stan-
dard only applies to cases involving “emergency and nearly
instantaneous pursuits,” and is not applicable to the situation
at hand where Prunchak allegedly had ample time to deliber-
ate. Drawing on language in Lewis, Bingue urges us to adopt
the less demanding “deliberate indifference” standard in her
case and reserve the “intent to harm” standard for situations
where the police “have obligations that tend to tug against
each other” and must make decisions “in haste, under pres-
sure, and frequently without the luxury of a second chance.”
Lewis, 523 U.S. at 853 (internal quotation marks omitted). At
first glance, Bingue appears to be correct that our prior deci-
sions and those of some of our sister circuits support her posi-
tion. See, e.g., Moreland, 159 F.3d at 372 (noting that the
critical question to determine whether the “intent to harm”
standard applies is “whether the circumstances are such that
‘actual deliberation is practical.’ ” (quoting Lewis, 523 U.S. at
851)); Onossian, 175 F.3d at 1171 (“Perhaps most telling is
[Lewis’] description of the dilemma of a police officer who
must make a ‘split-second’ decision whether to pursue a sus-
pect.”); Rivas v. City of Passaic, 365 F.3d 181, 195-96 (3d
Cir. 2004) (holding that under Lewis the “intent to harm”
standard applies to split-second decisions, but not “where an
BINGUE v. PRUNCHAK 487
official had to act with some urgency”); Ewolski v. City of
Brunswick, 287 F.3d 492, 510-13 (6th Cir. 2002) (“The time
for deliberation available to [police] in deciding how to
respond to [a two-day police standoff] distinguishes this case
from those in which actual malice and an intent to harm [is]
required[,]” such as Lewis); Radecki v. Barela, 146 F.3d 1227,
1231 (10th Cir. 1998) (holding that under Lewis, “in assessing
the constitutionality of law enforcement actions, we now dis-
tinguish between emergency action and actions taken after
opportunity for reflection”).
[6] It remains an open question in our circuit whether the
“intent to harm” standard applies categorically to Fourteenth
Amendment due process claims arising out of all high-speed
police chases, or whether there are some kinds of high-speed
chases in which a “deliberate indifference” standard applies.
See Onossian, 175 F.3d at 1172 (declining to adopt a categori-
cal rule for high-speed chases). The Eighth Circuit has
adopted a categorical rule 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 v. Burch, 258 F.3d 867, 871 (8th Cir.
2001) (en banc) (emphasis in original). Helseth, like the case
at hand, involved a § 1983 substantive due process claim
brought by an innocent bystander injured in a high-speed car
chase. Id. at 869-70. In granting qualified immunity on that
claim, the en banc court expressly overruled an earlier Eighth
Circuit opinion holding that a bystander killed during the
high-speed pursuit of a stolen car only needed to show delib-
erate indifference to prevail because the pursuing officer “had
ample time to deliberate and weigh” the dangers presented in
the six minute chase, Feist v. Simonson, 222 F.3d 455, 463-65
(8th Cir. 2000). See Helseth, 258 F.3d at 870-71.
The en banc court determined that the original panel had
read Lewis too narrowly and was focused “on a portion of the
Court’s justification for [its] holding” and “paid too little heed
to the Supreme Court’s holding.” Id. at 870 (emphasis in orig-
488 BINGUE v. PRUNCHAK
inal). The court further noted that the original panel’s decision
would effectively “eviscerate[ ] the holding of Lewis” because
under that reading courts would be free to reject the intent to
harm 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. at 871 (internal quo-
tation marks omitted).
[7] The court also noted that drawing such an arbitrary dis-
tinction between “emergency” and “non-emergency” situa-
tions discounts the split second decisions an officer must
make when deciding whether to engage in a high-speed chase.
In such circumstances, officers must operate under great pres-
sure and make repeated split-second decisions about how best
to apprehend the fleeing suspect in a manner that will mini-
mize risk to their own safety and the safety of the general
public. An officer attempting to apprehend a suspect fleeing
at high speed does not have the luxury of delay; there is no
time for reflection and precious little time for deliberation
concerning either the decision to join the chase in the first
place or the serial decisions about how best to pursue the sus-
pect. The sheer velocity of a high-speed chase necessarily
converts each situation into a genuine “emergency.” Trying to
sort high-speed chases into the neat categories of “emergen-
cy” and “non-emergency” situations is much like trying to
bake a cake and having to distinguish between salt and sugar
by sight alone: it is a nearly impossible task that has a high
likelihood of producing an unpleasant result. Our colleagues
on the Eighth Circuit recognized that such a distinction is
unsound under Lewis because:
it . . . gives too little recognition to the Court’s other
bases for [its] holding—its historical reluctance “to
expand the concept of substantive due process,” 523
U.S. at 842; its explicit reliance on Whitley v. Albers,
475 U.S. 312, 320 (1986), which adopted the intent-
to-harm standard for a two-hour prison riot, 523 U.S.
at 853-54; its doubt whether “it makes sense to speak
BINGUE v. PRUNCHAK 489
of indifference as deliberate in the case of sudden
pursuit,” 523 U.S. at 851; its recognition that police
officers confronting high-speed lawlessness are
“subject to countervailing [law] enforcement consid-
erations,” 523 U.S. at 855; its concern that any stan-
dard less than intent-to-harm “might cause suspects
to flee more often, increasing accidents of the kind
which occurred here,” 523 U.S. at 858 (Kennedy, J.,
concurring); and the belief of at least some Justices
that the question of police officer liability for reck-
less driving during high-speed pursuits should be
decided by the elected branches of government, 523
U.S. at 864-65 (Scalia, J., concurring).
Helseth, 258 F.3d at 871. We agree with the Eighth Circuit
and decline to try to draw a distinction between “emergency”
and “non-emergency” situations involving high-speed chases
aimed at apprehending a fleeing suspect.6 We, therefore, hold
6
Bingue argues that other circuits have either rejected Helseth or have
held that the Lewis “intent to harm” standard only applies where officers
lack the time necessary to deliberate. A closer examination of these cases
reveals that none of those cases involved high-speed car chases. Instead,
in applying Lewis, those courts merely reasoned from analogy and
extracted from Lewis the proposition that when deliberation is impossible,
the “intent to harm” standard is more likely to apply. See, e.g., Moreland,
159 F.3d at 372 (“While the Supreme Court limited its holding in Lewis
to the facts of that case (i.e., to high-speed police chases), there is no prin-
cipled way to distinguish such circumstances from this case.”). None of
the cases cited hold that some high-speed car chases involve a lower stan-
dard of proof than that established by the Lewis court. See, e.g., id.; com-
pare Elowski, 287 F.3d at 511 (holding that, under the Lewis framework,
a two-day police standoff “falls within the middle-range between custodial
settings and high-speed car chases, and likewise conclude that, on balance,
the more appropriate standard of review is deliberate indifference.” (inter-
nal quotation marks omitted)) with Meals v. City of Memphis, 493 F.3d
720, 729-32 (6th Cir. 2007) (holding, without any discussion of whether
a high-speed police car chase permitted time for deliberation or reflection,
that the defendant police officer was entitled to qualified immunity
because there was no showing that the police officer acted with intent to
harm).
490 BINGUE v. PRUNCHAK
that the Lewis standard of “intent to harm” applies to all high-
speed police chases. Cf. Scott, 127 S. Ct. at 1779 (“A police
officer’s attempt to terminate a dangerous high-speed car
chase that threatens the lives of innocent bystanders does not
violate the Fourth Amendment, . . .”).
[8] Applying the “intent to harm” standard to the case at
hand, we conclude that Prunchak did not act with the requisite
intent to harm. The police report filed immediately after the
accident reveals that Prunchak joined the high-speed chase in
an attempt to do his job and help apprehend the fleeing sus-
pect who posed a danger to the community. He stated that he
“heard radio traffic that units were in pursuit of a stolen vehi-
cle.” Shortly thereafter he heard additional traffic that the
vehicle was entering U.S. 95, near where Prunchak was
parked. He wrote that he “thought that [he] was close enough
to help and did not know at the time how many other units
were in pursuit.” The police incident recall logs support
Prunchak’s statement. Nowhere in the record is there any
indication that Prunchak acted with an intent to harm, or had
any motive other than a desire to do his job. With the benefit
of hindsight, Prunchak’s decision to join the pursuit may have
been ill-advised and his execution may have been careless,
but we cannot say that, from the moment Prunchak heard the
call over the radio, he did not believe he was responding to
an emergency and acted accordingly; poor judgment alone in
a high-speed chase does not violate the Fourteenth Amend-
ment. Because Prunchak’s actions do not meet the “intent to
harm” standard, he is entitled to judgment under step one of
the Saucier analysis.
IV. CONCLUSION
[9] 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. We hold, there-
fore, that Lewis requires us to apply the “intent to harm” stan-
BINGUE v. PRUNCHAK 491
dard to all high-speed chases. Since Prunchak’s actions do not
meet this stringent standard, Bingue’s claim fails under the
first step of the Saucier analysis and Prunchak is entitled to
dismissal. Consequently, we reverse the judgment of the dis-
trict court and remand for an entry of judgment for Prunchak
on the § 1983 claims.
REVERSED and REMANDED.