* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

1 UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-20516

TAMMY GALLOWAY,

Plaintiff - Appellee,

VERSUS

THE CITY OF HOUSTON TEXAS; ET AL,

Defendants,

J WHALEN

Defendant - Appellant.

Appeal from the United States District Court

For the Southern District of Texas, Houston Division

(H-98-CV-3395)

July 12, 2000

Before POLITZ, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM: *

Appellant Jimmy Whalen, a Har ris County Deputy Sheriff,

app eals from the district court’s denial of summary judgment in

this 42 U.S.C. § 1983 civil rights case filed by Appellee Tammy2

Galloway. Galloway claims that she was shot by Officer Whalen in

violation of her Fourth and Fourteenth Amendment rig hts against

unreasonable seizure and her Fourteenth Amendment rights to

substantive due process. Officer Whalen moved for summary judgment

asserting that he is qualifiedly immune from the claims and arguing

(1) that he did not violate Galloway’s Fourth Amendment rights both

because no seizure occurred and because his actions were

reasonable, and (2) that his actions did not violate Galloway’s

substantive due process rights as they were not shocking to the

conscience.

Having fully considered the arguments of counsel as advanced

in briefs and at oral argument, and having carefully reviewed the

record on appeal, we conclude that there are genuine issues as to

material facts precluding Deputy Whalen’s entitlement to summary

judgment. Accordingly, we AFFIRM the district court’s

interlocutory judgment denying Deputy Whalen’s summary judgment

motion.3

EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting

in part:

I concur in the majority’s de cision to affirm the district

court’s denial of summary judgment on Tammy Galloway’s

(“Galloway’s”) Fourth Amendment claim. There are genuine issues of

material fact precluding summary judgment for Deputy Whalen on that

claim. However, I believe that the district court erred in denying

Whalen summary judgment on Galloway’s Fourteenth Amendment

(substantive due process) claim. Therefore, I dissent in part.

The right to substa ntive due process is violated only by

government action that “can properly be characterized as arbitrary,

or conscience shocking, in a constitutional sense.” C ounty of

Sacramento v. Lewis , 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.

2d 1043 (internal citation omitted). Lewis , which dealt with the

substantive due process claim of a motorcycle passenger killed by

police in a high-speed automobile chase aimed at apprehending a

suspected offender, i d. at 837-38, clarified the proper

application of the “shocks the co n science” standard in

circumstances like those presen ted here. Having discussed the

conflicting obligations and lack of time for reflection facing

police officers “on an occasion calling for fast action,” the Court

held that “when unforeseen circumstances demand an officer’s

instant judgment, even precipitate recklessness fails to” shock the2 It is not disputed that Michael had the car in reverse and was

attempting to move backward at the time Whalen opened fire. The

police officers testified that Michael not only put the car in

reverse but actually began moving backward. Michael testified that

the car likely was in reverse and that he was revving the engine.

Tammy admitted that it was possible that Michael had tried to back

the vehicle and she had not been aware of it. Therefore, while it

is disputed whether the vehicle actually could or did move, it is

not disputed that Michael indicated an intent to move the vehicle

in reverse. This indication was sufficient to create an emergency

situation requiring Whalen’s instant judgment.

4 conscience. I d. at 853. Rather, in such circumstances “a purpose

to cause harm” is a prerequisite to substantive due process

liability. Id. at 854.

It is clear tha t Whalen was presented with unforeseen

circumstances demanding instant judgment. At the conclusion of a

nighttime car chase lasting several minutes, Mi chael Galloway’s

(“Michael’s”) car was surrounded by police (on foot) in a wooded

area after it jumped the curb of a dead-end street. Whalen ran up

behind the vehicle as Michael attempted unsuccessfully to move it.

When Michael indicated that he was going to move in reverse, Whalen

reacted by firing five rounds toward the vehicle while running to

its side, hitting Galloway, the passenger. 2 Under L ewis

, Whalen

is liable to Galloway only if he intended to cause harm. See id.

at 854.

Galloway does not d ispute that she must show that Whalen

intended to h arm her. Rather, she argues that she has made this

showing. I disagree. First, Galloway apparently did not allege in

her complaint that Whalen intenti onally harmed her. Second, the5

district court found that there was no claim and no evidence that

Whalen intended to harm Galloway. Third, while Galloway’s brief

purports to show the requisite intent-to-harm, it actually claims

only that Whalen acted “with total disregard” for Galloway’s

safety. Such disregard is not the equivalent of an intent to harm.

It is thus not surprising that Galloway failed to present the

requisite specific evidence showing that Whalen intended to harm

her. The district court therefore erred in denying Whalen’s motion

for summary judgment on Galloway’s Fourteenth Amendment claim. See

Fed. R. Civ. P. 56(e).