dissenting:
The majority holds that a police officer who knowingly and maliciously or wantonly fired his .357 magnum at a family suburban automobile containing two helpless and innocent bystander children, ages 3 and 7, endangering their lives with deadly force and causing them severe psychological damage, merely to serve routine traffic tickets on the children’s mother, is entitled to qualified immunity.
I respectfully dissent for the following reasons: (1) Officer Rivera’s misbehavior was so egregious and so clearly violated the Petta children’s Fourteenth Amendment substantive due process rights that no prior judicial precedent was required to clearly establish their action under 42 U.S.C. § 1983; (2) Moreover, although by no means essential to the Petta children’s present cause, before Rivera’s violation of their rights this court had recognized § 1983 actions on behalf of young children who sustained serious psychological damage as the result of violations of their Fourteenth Amendment substantive due process rights under circumstances closely analogous to the facts of the present case; (3) The cases relied upon by the majority to show that the Petta children’s Fourteenth Amendment substantive due process rights violated by Rivera were not clearly established are inapposite, clearly distinguishable and would have no effect upon the fact that a reasonable officer in Rivera’s situation would know or should know that the egregious abusive and excessive conduct engaged in by Rivera was a violation of the Petta children’s constitutional rights.
After a review of the record and the law, I conclude that Rivera’s motion for summary *347judgment based on qualified immunity was properly denied by the district court because (1) the Petta children have stated a valid claim that their constitutional rights were violated under currently applicable standards and (2) the Petta children have shown that Rivera’s actions were objectively unreasonable under the clearly established law at the time of the incident in question. Therefore, I would affirm the district court’s ruling and remand for further proceedings.
I.
On summary judgment the inferences to be drawn from the underlying facts contained in the affidavits, depositions, and exhibits of record must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Accordingly, construing the record on motion for summary judgment in the light most favorable to the plaintiffs, the Petta children, I infer the following facts.
On January 15, 1990, Patrolman Rivera stopped Ms. Petta for speeding as she was driving her 1983 Chevrolet Suburban on Farm Road 70 toward Corpus Christi where she and her family resided. Ms. Petta’s son Cavin, age 3, was in the front passenger seat with his seat-belt fastened, and her daughter Nikki, age 7, was in the back seat. At Rivera’s request, Petta handed over her driver’s license and registration. Rivera accused Petta of driving 69 miles per hour, but Petta disagreed, contending she had been going only 63 miles per hour. Rivera told Petta not to argue with him. Petta responded that Rivera should just give her a speeding ticket and let her depart. She added that she would tell her story to the arraigning judge, whom she knew. In response, Rivera told her not to tell him how to do his job. Petta replied that he would lose his job if he didn’t “get a grip” and again requested a speeding ticket.
Rivera noticed that Cavin’s seat belt was not fastened and told Petta her failure to have the child secured in a safety restraint was also a traffic law violation. As Petta began to explain that Cavin had been wearing his seat belt before the stop, Rivera walked back to his police ear. He quickly returned in a more aggressive mood, however, and demanded that Petta get out of her ear. She refused because she was frightened that Rivera might harm her or separate her from her children. He demanded that she roll down her window. She refused, shaking her head. Rivera angrily tried to jerk open her locked car door, saying “Get out of the car, Bitch.” Becoming more alarmed, she refused again. Rivera shouted through the closed window that he would have her vehicle towed away. Petta responded, “I’ll leave first. You know where to find me.” Petta was referring to the fact that Rivera still had her driver’s license and registration containing her home address. Rivera got back in his car and pulled it in front of Petta’s Suburban. She backed up and pulled the Suburban in front of Rivéra’s vehicle. Rivera jumped from his car, and began to beat on Petta’s window with his night stick, shouting repeatedly “Get out of the car, Bitch,” and “I’m going to break the window.” Both children had become very frightened, and Nikki kept repeating, “Mom, he’s breaking the window!” Rivera shouted, “They’re coming to get you. They’re coming right now. They’re All coming.” Finally, Rivera took out his .357 magnum revolver, pointed it at Petta’s face and said, “Then I’ll just have to kill you, Bitch!” Petta panicked and drove off in the Suburban.
As Petta fled with her children, Rivera chased after them and fired a shot with his .357 at the Petta vehicle. Cavin was groaning and shaking. In the rearview mirror, Petta saw Rivera aim his revolver at her vehicle as she traveled at speeds of up to 85 mph. Soon after, she saw Rivera pull out a shotgun and aim toward her vehicle. As they approached Corpus Christi, additional law enforcement vehicles joined the chase. Petta was able to avoid being stopped, however, by weaving through city streets toward her home. At one point, as she slowed to make a turn, Rivera fired another .357 shot at her vehicle. Nikki cried out, “Mom, he’s shooting again!” Ultimately, Petta arrived at her apartment and sent the children into the dwelling to their father. Cavin was crying hysterically. Rivera and *348the other pursuing officers arrived, arrested and handcuffed Petta, and took her to the police station.
The evidence filed by Rivera disputes many of these facts. But in some important respects it reinforces inferences drawn in the light most favorable to the nonmoving parties.
The police radio log of events indicates that at 4:49 p.m. Rivera relayed to the dispatcher his location, a description of the Petta vehicle, and its license plate number, TX 7282-MX. Rivera called for a wrecker at 4:54 PM, stating the “subject failed to get out of the vehicle.... it’s a hysterical female, she refuses to follow orders.” At' 4:58 p.m., he informed the dispatcher that he was in pursuit of the vehicle, and at 4:59 PM he relayed Petta’s driver’s license no., TX 09216602. At 5:01, this exchange occurred:
Rivera: ... subject does have a child in the vehicle also. I will, I was gonna attempt to shoot out the tires, I’m not at this point.
Dispatcher: Corpus Christi, 3112, 3100 [Rivera’s superior officers] advises negative, not if there’s a child aboard.
Rivera: 10-4.
The radio log and the record as a whole overwhelmingly support the inference that Rivera nevertheless fired his- .357 magnum at the Petta vehicle after receiving his superior officer’s order not to do so. At 5:18 p.m., an officer Martinez broadcast “pursuit terminated,” indicating that Petta had been arrested.
In his deposition, Rivera admitted that he had no reason to believe that Petta was a dangerous person or was wanted for anything other than the speeding violation; that he rapped on her window 15 times or so with his- baton; that he drew his revolver and aimed at the Petta vehicle when she drove away; that he shot at the Petta vehicle’s tire with his .357 during the chase; and that he shot at the Petta vehicle after the radio dispatcher had relayed a direct order from his . superior officer forbidding him to shoot at the vehicle because there was a child aboard. In his deposition, James .Cleland, a cadet riding with Rivera during the episode, testified that at the time the chase began, Rivera had Petta’s driver’s license, vehicle registration, and license plate number in his possession; that before the chase began Rivera had no reason to believe that Petta was a dangerous person or was wanted for any reason other than the speeding violation.
As the result of a Department of Public Safety disciplinary inquiry it was found that Rivera had been ordered by his superior officer not to fire on the Petta vehicle because there was a child on board and because of the threat of harm to bystanders in the city and that Rivera had disobeyed this direct order. Further, the officers who investigated the incident found that Rivera had lost control of the situation and placed the Department in a very precarious position; that there was no reason to continue the pursuit; that there was no reason to discharge his weapon at the vehicle; and that Rivera did not take into consideration the consequences of his actions concerning the passengers in the vehicle or innocent bystanders.
Following the incident, Petta brought suit in the district court alleging that Rivera had used excessive force in violation of the Fourth Amendment and had also deprived Nikki and Cavin of their Fourteenth Amendment substantive Due Process rights. She seeks compensatory and punitive damages for Nikki and Cavin’s injuries due to the mental anguish and serious psychological harm they suffered as a result of the violations. The children are not alleged to have suffered any physical harm as a result of the incident. Rivera filed a motion to dismiss or, in the alternative, for summary judgment, as to all of Petta’s claims asserting his defense of qualified immunity. In addition, defendant TDPS filed a motion to dismiss on the basis of its Eleventh Amendment immunity.
The district court dismissed Petta’s claims against defendant TDPS on the basis of Eleventh Amendment immunity. Additionally, the court granted Rivera’s motion for summary judgment on Petta’s Fourth Amendment claims, determining that the children had not been seized and were not the object of the pursuit. The court further found that because Rivera had not raised the issue of his qualified immunity from Petta’s Fourteenth Amendment claim, he had thus *349not moved for dismissal or summary judgment on Petta’s Fourteenth Amendment due process claim.
Rivera filed a supplemental motion for summary judgment on the Petta children’s due process claim, again asserting his defense of qualified immunity. The district court denied Rivera’s motion on the Petta children’s claims under the Fourteenth Amendment without explanation. Subsequently, Rivera filed a motion for reconsideration of the court’s order denying his motion for summary judgment. However, before the court ruled upon his motion for reconsideration, Rivera filed a timely notice of appeal from the court’s denial of his motion for summary judgment. The district court then denied Rivera’s motion for reconsideration and this appeal followed.1
II.
Under 42 U.S.C. § 1983, every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state, subjects, or causes to be subjected, any citizen of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Therefore, when a state officer acts under a state law in a manner violative of the Federal Constitution, he comes in conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Although § 1983 on its face admits of no immunities, the Supreme Court has read it in harmony with general principles of tort immunities and defenses rather than in derogation of them. Imbler v. Pachtman, 424 U.S. 409, 418, 96 S.Ct. 984, 989, 47 L.Ed.2d 128 (1976).
The Supreme Court cases have generally provided government officials performing discretionary functions with a qualified immunity, shielding them from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Anderson v. Creighton, 483 U.S. 635, 638-639, 107 S.Ct. 3034, 3038-3039, 97 L.Ed.2d 523 (1987) (citing Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the “objective legal reasonableness” of the action, assessed in light of the legal rules that were “clearly established” at the. time it was taken. Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 (quoting Harlow, 457 U.S. at 818-819, 102 S.Ct. at 2738-2739).
In assessing a claim of qualified immunity, the court engages in a bifurcated analysis. See Rankin v. Klevenhagen, 5 F.3d 103, 105 (5th Cir.1993) (citing Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.1992)). Qualified immunity is a defense that must be pleaded by a defendant official. Once a defendant pleads a defense of qualified immunity, “ ‘[o]n summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred.’ ” Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 1792, 114 L.Ed.2d 277 (1991) (quoting from Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). The first inquiry is whether the plaintiff has asserted a violation of a constitutional right at all. Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). If so, we then decide whether the constitutional right asserted by the plaintiff was “clearly established” at the time the defendant acted. Id.
Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. *350Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. Id. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Id.; Cf. Anderson, 483 U.S. at 640, 107 S.Ct. at 3038 (“This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in light of pre-existing law the unlawfulness must be apparent.”) (internal citations omitted). If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Harlow, 457 U.S. at 818-819, 102 S.Ct. at 2738-2739; See Spann v. Rainey, 987 F.2d 1110, 1114 (5th Cir.1993) (quoting Salas, 980 F.2d at 310).
III.
The substantive due process claim for excessive force under § 1983, and the standard for judging such a claim, were first recognized in Johnson v. Glick, 481 F.2d 1028 (2nd Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) in which the Court of Appeals for the Second Circuit addressed such a claim by a pretrial detainee who asserted that a guard had assaulted him without justification. In evaluating the detainee’s claim, Judge Henry J. Friendly looked to “substantive due process,” holding that “quite apart from any ‘specific’ of the Bill of Rights, application of undue force by law enforcement officers deprives a suspect of liberty without due process of law.” Glick, 481 F.2d, at 1032. In support, he relied on the Supreme Court’s decision in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), which used the Due Process Clause to void a state criminal conviction based on evidence obtained by pumping the defendant’s stomach. Glick, 481 F.2d at 1031-1033. If a police officer’s use of force which “shocks the conscience” could justify setting aside a criminal conviction, the Glick court reasoned, a correctional officer’s use of similarly excessive force must give rise to a due process violation actionable under § 1983. Id. Judge Friendly went on to set forth four factors to guide courts in determining “whether the constitutional line has been crossed” by a particular use of force:
[A] court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.
Id. at 1033; see Graham v. Connor, 490 U.S. 386, 392, 109 S.Ct. 1865, 1869, 104 L.Ed.2d 443 (1989). The vast majority of federal courts have followed Johnson v. Glick, applying its four-part “substantive due process” test to all excessive force claims lodged against law enforcement and prison officials under § 1983. Graham v. Connor, 490 U.S. at 393, 109 S.Ct. at 1869 (citing, Freyermuth, Rethinking Excessive Force, 1987 Duke L.J. 692, 694-696, and nn. 16-23 (1987) (collecting cases)).
In Shillingford v. Holmes, 634 F.2d 263 (5th Cir. Unit A 1981) this court of appeals adopted its own version of the Johnson v. Glick standard for judging an innocent “bystander’s” claim under substantive due process and § 1983 for excessive use of force by a police officer. Officer Holmes had used his nightstick to strike Shillingford, a tourist who was photographing the arrest of a boy during a Mardi Gras parade, smashing the camera into Shillingford’s face and lacerating his forehead. Shillingford was not involved in the arrest incident and did not interfere with the police in any fashion. The Shilling-ford court borrowed terminology from Johnson v. Glick, as well as Hall v. Tawney, 621 F.2d 607 (4th Cir.1980) and restated the standard as follows:
In determining whether the state officer has crossed the constitutional line that would make the physical abuse actionable under Section 1983, we must inquire into the amount of force used in relationship to *351the need presented, the extent of the injury inflicted and the motives of the state officer. If the state officer’s action caused severe injuries, was grossly disproportionate to the need for action under the circumstances and was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience, it should be redressed under Section 1983. Hall v. Tawney, 621 F.2d at 613; Johnson v. Glick, 481 F.2d at 1033.
Shillingford, 634 F.2d at 265. Thus, this court added the requirement of “severe injury,” contained in the Hall v. Tawney formulation, to the original Johnson v. Glick test.
The Shillingford court found that because the officer’s assault was unprovoked and unjustified, was committed merely to prevent the bystander plaintiff from photographing what the officer did not want memorialized, and could have caused the plaintiff permanently disabling eye or head injuries, “the physical abuse [was] sufficiently severe, sufficiently disproportionate to the need presented and so deliberate and unjustified a misuse of the policeman’s badge and bludgeon as to transcend the bounds of ordinary tort law and establish a deprivation of constitutional rights.” Id. at 266.
Subsequently, the Shillingford v. Holmes standard was rendered inapplicable to certain types of claims by Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) and by analogy was altered with respect to all other claims by Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). In Graham v. Connor, the Court held that the validity of an excessive force claim arguably based upon a violation of a specific protection of the Bill of Rights, such as those contained in the Fourth and Eighth Amendments, must be judged by reference to the specific standard which governs that right rather than by the more general substantive due process standard. In Hudson v. McMillian, the Court held that the use of excessive force against a prisoner may constitute cruel and unusual punishment under the Eighth Amendment even though the inmate does not suffer serious injury.
In Graham v. Connor, the Supreme Court rejected the notion that all excessive force claims brought under § 1983 are governed by a single generic standard. Id. at 393,109 S.Ct. at 1869. Instead, in addressing an excessive force claim brought under § 1983, analysis begins by determining whether the challenged application of force is properly examined with reference to a specific constitutional right. Id. at 394, 109 S.Ct. at 1870 (citing Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979)). If so, the validity of the claim must be judged by reference to the specific constitutional standard which governs that right, rather than to some generalized “excessive force” standard. Id. at 394, 109 S.Ct. at 1870 (citing Tennessee v. Garner, 471 U.S. 1, 7-22, 105 S.Ct. 1694, 1699-1706, 85 L.Ed.2d 1 (1985) (claim of excessive force to effect arrest analyzed under a Fourth Amendment standard)); Whitley v. Albers, 475 U.S. 312, 318-326, 106 S.Ct. 1078, 1083-1087, 89 L.Ed.2d 251 (1986) (claim of excessive force to subdue convicted prisoner analyzed under an Eighth Amendment standard).
The Graham Court decided" that claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, and must be judged by reference to the Fourth Amendment’s “reasonableness” standard. Id. at 394-395, 109 S.Ct. at 1870-1871. Explicitly, the court stated:
[A]ll claims that law enforcement officers have used excessive force — deadly or not— in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard rather than under a “substantive due process” approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.
Graham, 490 U.S. at 395, 109 S.Ct. at 1871.
In the appeal and record before us the plaintiffs do not present a claim on behalf of *352the Petta children under § 1983 based on a violation of their Fourth Amendment rights. The appellees do not allege a factual basis for finding that the officer used excessive force in the course of an arrest, investigatory stop, or other “seizure,” of the children. A “seizure” triggering the Fourth Amendment’s protections occurs only when government actors have, by means of physical force or show of authority, in some way restrained the liberty of a citizen. Graham, 490 U.S. at 395 n. 10, 109 S.Ct. at 1871 n. 10 (citing Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1878 n. 16, 20 L.Ed.2d 889 (1968)); Brower v. County of Inyo, 489 U.S. 593, 596-597, 109 S.Ct. 1378, 1381-1382, 103 L.Ed.2d 628 (1989) (“[A] Fourth Amendment seizure [occurs] only when there is a governmental termination of freedom of movement through means intentionally applied.”) (emphasis in original); see also California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991) (“The word ‘seizure’ readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.... An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.”). In this ease, the Petta children were merely bystanders in the episode, were not physically touched or restrained, and were not called upon to stop under a show of authority by the officer; and, of course, the children did not submit to an assertion of authority.
The majority opinion implicitly recognizes that the Petta children do not present a § 1983 claim based on an arrest, investigatory stop, or other “seizure” of the children which would invoke a Fourth Amendment violation analysis. Nevertheless, the majority fails to acknowledge clearly that an officer’s excessive, unreasonable and outrageous use of deadly force against helpless and innocent bystanders such as the Petta children violates their Fourteenth Amendment substantive due process rights; and that, otherwise, innocent bystanders would be shorn of all constitutional rights and have less protection under the constitution and § 1983 that prisoners, arrestees, and detainees.
While the Supreme Court in Graham did reject the substantive due process or more generalized approach, the court did so only in eases in which the alleged excessive use of force arguably violated a specific right protected under the Bill of Rights. With respect to free citizens, the court explicitly held only that all “claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ ” should be analyzed under the Fourth Amendment. Graham, 490 U.S. at 395, 109 S.Ct. at 1871 (emphasis added); See United States v. Lanier, 520 U.S. -, - n. 7, 117 S.Ct. 1219, 1228 n. 7, 137 L.Ed.2d 432 (1997) (“Graham v. Connor, [supra.] does not hold that all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendment, rather, Graham simply requires that if a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.”). Further, the court explicitly stated that “[a] ‘seizure’ triggering the Fourth Amendment’s protections occurs only when government actors have, ‘by means of physical force or show of au-thority____in some way restrained the liberty of a citizen’.” Id. at 396 n. 10, 109 S.Ct. at 1871 n. 10 (quoting from Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1878 n. 16, 20 L.Ed.2d 889 (1968)). Moreover, the court specifically noted that:
Our cases have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins, and we do not attempt to answer that question today. It is clear, however, that the Due Process clause protects a pretrial detainee from the use of excessive force that amounts to punishment. See Bell v. Wolfish, 441 U.S. 520, 535-539, 99 S.Ct. 1861, 1871-1874, 60 L.Ed.2d 447 (1979).
Graham, 490 U.S. at 396, n. 10, 109 S.Ct. at 1871, n. 10.
*353Accordingly, I would find, as have all of the courts of appeals that have addressed the issue, that a plaintiff whose claim is not susceptible to proper analysis with reference to a specific constitutional right, such as the Petta children, may still state a claim under § 1983 for a violation of his or her Fourteenth Amendment substantive due process right, and have the claim judged by the constitutional standard which governs that right. See Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 796 (1st Cir.1990) (“We assume that claims of excessive force outside the context of a seizure still may be analyzed under substantive due process principles.”); Pleasant v. Zamieski, 895 F.2d 272, 276 n. 2 (6th Cir.1990) (“[Pjresumably this imperative would preserve fourteenth amendment substantive due process analysis for those instances in which a free citizen is denied his or her constitutional right to life through means other than a law enforcement official’s arrest, investigatory stop or other seizure.”); Sinaloa Lake Owners Assoc. v. City of Simi Valley, 882 F.2d 1398, 1408 n. 10 (9th Cir.1989) (Graham does not, however, bar substantive due process analysis altogether. “A plaintiff may still state a claim for violation of substantive due process where it is alleged that the government has used its power in an abusive, irrational or malicious way in a setting not encompassed by some other enumerated right.”); and Wilson v. Northcutt, 987 F.2d 719, 722 (11th Cir.1993) (“[W]e hold that a non-seizure Fourteenth Amendment substantive due process claim of excessive force survives Graham.”).
IV.
In determining whether the Petta children have asserted a violation of a currently extant constitutional right at all, the Supreme Court’s decision in Hudson v. McMillian requires that this court dispense with the “severe injury” requirement of the Shillingford v. Holmes substantive due process standard. In Hudson the Court held that (1) the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth amendment; (2) the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm; (3) the extent of injury suffered by an inmate is one factor that may suggest whether the use of force could plausibly have been thought necessary or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur; (4) in determining whether the use of force was wanton or unnecessary, it may also be proper to evaluate the need for its application, the relationship between that need and the amount of force used, the threat reasonably perceived by responsible officials and any efforts made to temper the severity of a forceful response; and (5) the absence of serious injury is therefore relevant to the Eighth Amendment inquiry, but does not end it. Hudson, 503 U.S. at 5-7, 112 S.Ct. at 997-998.
This court of appeals has acknowledged that the Hudson rationale requires the elimination of the “significant injury” requirement that had been added to the objective reasonableness test for purposes of assessing the validity of Fourth Amendment excessive force claims. Dunn v. Denk, 79 F.3d 401 (5th Cir.1996) (en banc); Harper v. Harris County, Texas, 21 F.3d 597 (5th Cir.1994).
By the same token, in the wake of Hudson there is no justifiable basis for maintaining the “severe injury” requirement as part of the standard for judging the validity of a substantive due process excessive force claim. This is especially evident because the “unnecessary and wanton infliction of pain” standard that the Supreme Court adopted in Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) and applied in Hudson closely resembles and was derived from the test “articulated by Judge Friendly in Johnson v. Glick, ..., a case arising out of a prisoner’s claim to have been beaten and harassed by a guard.” Hudson, 503 U.S. at 7, 112 S.Ct. at 999. Thus, it logically follows from the Hudson Court’s statement that “[ujnder the Whitley approach, the extent of injury is one factor” to be considered with “the need for application of force, the relationship between that need and the amount of force used” and other factors, that the *354extent of injury is only one relevant factor and cannot be exclusively determinative under the Johnson v. Glick substantive due process approach either.
Accordingly, I would find that the currently applicable legal standard to be used in analyzing the § 1983 claims of the Petta children, as bystander-plaintiffs, based on the alleged excessive use of force by Officer Rivera in violation of their Fourteenth Amendment substantive due process rights, is the Shillingford v. Holmes standard, absent any requirement of severe injury. Therefore, if the Petta children can prove that Rivera’s actions caused them injuries, were grossly disproportionate to the need for action under the circumstances and were inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power that shocks the conscience, they will have stated a valid claim under § 1983 based on a violation of their substantive due process rights under the current standard. Cf. Shillingford, 634 F.2d at 265.
Therefore, reviewing the summary judgment evidence in the light most favorable to the nonmoving parties, I find that the answer to the first inquiry — whether the Petta children have asserted a violation of a constitutional right at all under the currently applicable standard — is “yes.” To demonstrate that this is so, however, a detailed analysis of the evidence at this point is unnecessary. The second query of the bifurcated analysis— whether the constitutional rights asserted by the Petta children were “clearly established” at the time Rivera acted — raises all of the issues involved in the first inquiry, plus the question of whether the Petta children suffered “severe injuries” because of Rivera’s excessive use of force. Therefore, I will proceed directly to the second inquiry.
V.
On January 15, 1990, our clearly established standard for Fourteenth Amendment substantive due process excessive force claims was Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981). Applying that standard, and drawing the inferences most favorable to the non-moving parties, I would find that a reasonable trier of fact could find that Rivera’s actions were “grossly disproportionate to the need for action,” “inspired by malice rather than merely careless pr unwise excess of zeal,” amounted to “an abuse of official power that shocks the conscience,” and that, as a result, the Petta children suffered “severe injuries.” Shillingford, 634 F.2d at 265.
According to the record before us, there is overwhelming evidence that Rivera’s actions were “grossly disproportionate to the need for action under the circumstances.” Id. The only action necessary under the circumstances was the issuance of one or two traffic tickets. If Rivera had performed that act promptly and professionally, the use of excessive force would not have become an issue. Rivera had no reason to suspect that Ms. Petta had committed or was about to commit any offense more serious than a minor traffic violation. He took her driver’s license and registration, noted her license plate number, and knew or should have known that she was headed to her home a short distance away. Under these circumstances it was entirely unnecessary for Rivera to use deadly force in an attempt to apprehend Ms. Petta. Rivera’s application of lethal and other violent force directed toward the Petta vehicle occupied by Ms. Petta and her small children, both before and during the chase, was grossly disproportionate under the circumstances, viz., his shooting .357 magnum bullets at the ear, threatening to kill Ms. Petta while aiming his revolver at her, bludgeoning the car’s window, attempting forcibly to enter the vehicle, threatening to have it towed with the Pettas inside, and chasing the Petta vehicle at high speeds.
Drawing factual inferences in the non-mov-ants’ favor, a reasonable trier of fact could find that Rivera acted out of conscience-shocking malice or wantonness rather than merely careless or excessive zeal. Rivera’s use of deadly force, other violent acts, threats of death, abusive epithets, demeaning characterizations, and utter disregard for the safety and well being of Ms. Petta and her young children, allow a reasonable inference that he acted with malice, an intent to cause harm, or at least with such wantonness as is *355tantamount to a knowing willingness that it occur.
The evidence of record fully supports a reasonable inference that the Petta children have suffered severe and enduring psychological pain, injuries and disabilities as the result of Rivera’s use of deadly force and extreme violence in attempting to shoot, break into, and pull over the Petta vehicle, after cursing, yelling at, and threatening to kill their mother. During their ordeal, the children exhibited intense fear as evidenced by Nikki’s crying out repeatedly that Rivera was breaking their window and shooting at them, and by Cavin’s groaning, shaking, and uncontrollable crying. Even three years after Rivera’s attacks, the psychological evaluations recommended by the children’s psychiatrist indicate that, as a consequence of the terrorization, Cavin is highly anxious and distressed, perceives himself as delicate and vulnerable, and experiences sleeplessness and separation anxiety at night; Nikki has phobic concerns about angry, mean, or sadistic male figures, feels the world is unsafe, and invests enormous emotional energy into maintaining hypervigilanee at the expense of her reasoning and creative abilities. The psychologist recommends continued treatment and counseling for both children to help them cope with their emotional problems.
Reviewing the evidence of record in the light most favorable to the nonmoving parties, I find that the constitutional substantive due process rights asserted by the Petta children under the Skillingford v. Holmes standard constituted the “clearly established” law at the time that Rivera acted, that any reasonably competent law enforcement officer should have known that actions such as Rivera’s violated the law governing his conduct, and that Rivera’s immunity defense should therefore fail.
VI.
The majority opinion focuses on Rivera’s argument that his conduct cannot constitute a Fourteenth Amendment substantive due process violation under § 1983, even if it caused the Petta children severe and enduring psychological damage, because it did not result in any physical injury to them. The majority holds that it was not clearly established in January 1990 that a state officer’s wanton or malicious use of unnecessary and excessive force which caused severe psychological damage to a young child was a violation of the child’s constitutional , rights under the Fourteenth Amendment, unless the child also sustained physical injury in the process. Thus, Rivera, the majority finds, is entitled to qualified immunity as to the Petta children’s Fourteenth Amendment claims.
I disagree for three essential reasons,
a.
That a § 1983 plaintiff cannot point to a precisely and explicitly analogous case that existed prior to an officer’s violation of the plaintiffs constitutional rights does not automatically defeat the § 1983 claim. If a qualified immunity defense could succeed simply because the behavior alleged is so egregious that no identical case is on the books, the law would perversely encourage the most flagrant types of official misconduct. As Judge Richard Posner recognized in K.H. ex rel Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir.1990), “[t]he easiest cases don’t even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.” The Supreme Court and this Circuit have so held: Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987) (“The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held as unlawful; but it is to say that in the light of pre-existing law the lawfulness must be apparent.”) (emphasis added); Jefferson v. Ysleta Independent School District, 817 F.2d 303, 305 (5th Cir.1987). If the law were otherwise, qualified immunity would be absolute and no § 1983 claim would exist, because there could never be a previous case finding liability under the same circumstances.
*356The contours of the right of helpless and innocent bystander children of tender years, such as the Petta children, to be free from potentially lethal assault, such as being fired upon with a .357 magnum, was sufficiently clear on January 15, 1990 that a reasonable official in Rivera’s alleged position would have understood that what he was doing violated the Petta children’s constitutional rights. Even in the absence of any analogous judicial precedent, a reasonable officer would or should have known that such egregious conduct was unlawfully excessive and unconstitutional.
b.
The fact that Coon v. Ledbetter, 780 F.2d 1158 (5th Cir.1986) and Jefferson v. Ysleta, 817 F.2d 303 (5th Cir.1987) had been published prior to Rivera’s egregiously excessive assault upon the Petta children only served to confirm that such conduct was constitutionally intolerable. No reasonable person charged with knowledge of these eases would have thought that Rivera’s alleged conduct would be sanctioned constitutionally simply because the Petta children suffered severe emotional rather than physical injury.
This court in Coon v. Ledbetter, 780 F.2d 1158 (5th Cir.1986) held that four year old Racheal Ledbetter, who sustained serious emotional trauma but apparently no physical injury during a shootout between her father and sheriffs deputies, had made the proof of personal loss required for a § 1983 constitutional claim under the Shillingford substantive due process standard. Racheal’s injuries arose when sheriffs deputies fired a round of heavy buckshot into a trailer occupied by Racheal and her father, despite the fact that the deputies knew or should have known that other persons besides Racheal’s father were in the trailer.
Further, in Jefferson v. Ysleta Independent School District, 817 F.2d 303 (5th Cir.1987) this court held that eight year old Jardine Jefferson, who suffered humiliation, mental anguish, and a learning impairment, but no apparent physical injury, after being tied to a chair by school officials for nearly two school days, stated a valid § 1983 claim for violation of her substantive due process rights under the Shillingford standard. In addition, the Jefferson court went on to state that:
The defense of qualified immunity protects a public official from liability in the performance of his duties unless he violates a clearly established statutory or constitutional right of another known or knowable by a reasonable person. Harlow v. Fitzgerald....
In determining what a reasonable teacher should know in this instance, it is not necessary to point to a precedent on all-fours with the case at bar. It suffices that the teacher be aware of general, well-developed legal principles.
Jefferson, 817 F.2d at 305 (footnote omitted); see Mouille v. City of Live Oak, 918 F.2d 548, 551 (5th Cir.1990).
Although the eases were not necessary to inform a reasonable officer that such conduct was unconstitutionally wrong, Coon v. Led-better and Jefferson v. Ysleta, clearly indicate that if a state official causes serious emotional or psychological harm, even without physical injury, to a young child by the use of deadly force or other outrageous conduct disproportionate to the need for any action under the circumstances that was maliciously or wantonly applied so as to shock the conscience, the child’s claim for violation of her substantive due process right should be redressed under § 1983.
c.
There is nothing in the cases cited by the majority that would have caused a reasonable person to have any reasonable doubt that the behavior attributed to Rivera violated the Petta children’s clearly established Fourteenth Amendment substantive due process rights merely because his actions caused severe psychological harm as opposed to severe physical injury. In particular, there is nothing in Dunn v. Denk, 79 F.3d 401 (5th Cir.1996) (en banc) or Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc), that would cause a reasonable official to believe that Rivera’s alleged violent firearm assaults upon *357the Petta children were not constitutionally prohibited.
In Johnson v. Morel, this court reversed a summary judgment for an officer and remanded the case for trial on the plaintiffs § 1983 claims under the Fourth Amendment and the Equal Protection Clause. Specifically, this court recognized that Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), decided earlier that year, “teaches each constitutional claim identified must be judged by reference to its own specific constitutional standard.” Id. at 479. Because Johnson alleged that Morel intentionally discriminated against him and used excessive force while arresting him (claims found to fall under the Fourth Amendment and Equal Protection clause) this court expressly recognized that Graham would not permit Johnson’s claims to be analyzed or sustained under the substantive due process clause. Id. at 480. Johnson v. Morel, therefore, does not contain anything that would cause a reasonable person to believe that the law had changed with regard to alleged excessive use of force by an officer upon an innocent bystander as was the case in Shillingford v. Holmes, 634 F.2d 263 (1981), and especially not with regard to an officer’s egregious behavior in intentionally or wantonly discharging deadly firearms upon helpless and innocent bystander children of tender years for no reasonable purpose as in the present ease or as was confirmed in Coon v. Ledbetter, 780 F.2d 1158 (5th Cir.1986).
Dunn v. Denk, 79 F.3d 401 (5th Cir.1996) (en banc), was simply a retrospective look at what Johnson v. Morel contributed to a reasonable person’s knowledge of the contours of the Fourth Amendment right of a person to be free of excessive force during an arrest in 1990. Consequently, it contributes nothing more than Johnson v. Morel itself with respect to the Fourth Amendment right of an arrestee in 1990. Moreover, Dunn v. Denk contributed nothing whatsoever to what a reasonable person would have known in 1990 about the contours of the substantive due process rights of innocent bystander children to be free from a police officer’s unreasonable, outrageous and constitutionally intolerable assaultive gunfire.
The majority fails to demonstrate any sound or coherent basis for its assertion that in January 1990, the Petta children as innocent bystanders did not have a “clearly established” substantive due process right to be free from egregiously wanton or malicious excessive and potentially deadly force by Rivera resulting in their severe psychological damage. The majority correctly points out that when this court decided Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc) it required that an adult plaintiff in a § 1983 action based on excessive police force during an arrest or investigatory stop must prove, in order to recover, not only the violation of his Fourth Amendment right but also that “significant injuries resulted from the officer’s use of excessive force.” Id. at 479. But the majority incorrectly argues that the Johnson v. Morel Fourth Amendment interpretation also somehow “affected” the Fourteenth Amendment right of innocent bystanders to be free from a state officer’s action that is grossly disproportionate under the circumstances, inspired by malice or wantonness, and that amounts to an abuse of official power that shocks the conscience. This contention is simply wrong because the Johnson v. Morel court specifically stated that its holding had no effect upon Fourteenth Amendment substantive due process rights because of the constraints of Graham v. Connor. Id. at 479-480. Besides sharing the same Fourth amendment features as Johnson v. Morel, all of the other cases relied on by the majority were decided subsequent to Rivera’s firearm and other assaults upon the Petta children and therefore could have had no effect upon the Petta children’s clearly established substantive due process rights at the time of their violation by Rivera.
The majority also asserts without coherent demonstration that there is no principled reason for drawing an analytical distinction between the Petta children’s substantive due process claim and an adult arrestee’s Fourth Amendment claim. The distinction between the contours of the two kinds of constitutional rights, however, were clear and evident. The helpless and innocent bystander children’s substantive due process right to be free of a police officer’s egregious behavior *358involving excessive and unwarranted deadly force is clear and distinct from that of an adult suspect or offender who has- run afoul of the law to be free from excessive force during an arrest or investigatory stop.
VII.
The law with regard to the Fourteenth Amendment was clearly established in January of 1990. The Shillingford v. Holmes test stated that:
In determining whether the state officer has crossed the constitutional line that would make the physical abuse actionable under Section 1983, we must inquire into the amount of force used in relationship to the need presented, the extent of the injury inflicted and the motives of the state officer. If the state officer’s action caused severe injuries, was grossly disproportionate to the need for action under the circumstances and was inspired by malice rather than merely careless or unwise excess of zeal so that it amounted to an abuse of official power- that shocks the conscience, it should be redressed under Section 1983. Hall v. Tawney, 621 F.2d at 613; Johnson v. Glick, 481 F.2d at 1033.
634 F.2d at 265. Even without reference to Coon or Jefferson, I am persuaded that on January 15, 1990 a reasonable law enforcement officer knew or should have known that to attack a family suburban automobile occupied by an unarmed mother and her three and seven year old children by firing on the vehicle with a .357 magnum, bludgeoning its window, pointing the .357 magnum in the direction of the mother and three year old child while threatening to kill the mother, and other acts of excessive force and violence, in connection with minor traffic violations, was constitutionally impermissible. Rivera’s misbehavior was simply too egregious to justify concluding that that because of language in cases involving an entirely different context, i.e., the arrest, detention and seizure of adult suspects, offenders or prisoners, a reasonable officer in Rivera’s situation would not know or should not know that his actions in assaulting helpless and innocent bystander children with deadly force for no justifiable reason violated the Petta children’s Fourteenth Amendment substantive due process constitutional rights and subjected him to liability under § 1983 for their severe psychological damage. Young three and seven year old children have a constitutional right not to be subjected by state officials to the danger and terror of such deadly and violent force, resulting in their severe emotional pain and psychological damage, regardless of the fact that they fortuitously escaped physical injury in a torturous ordeal that easily could have resulted in their death or serious bodily harm.
For the foregoing reasons, I would affirm the district court’s denial of summary judgment and remand the case to that court for further proceedings. Therefore, I respectfully dissent.
. I agree with the majority's conclusion that this court has jurisdiction to hear this appeal.