United States Court of Appeals

For the Eighth Circuit 

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No. 19-2961

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Lori Braun, As Administratrix of the Estate of Cassandra Braun, deceased, 

Individually and on Behalf of all Wrongful Death Beneficiaries of, Cassandra 

Braun 

 Plaintiff - Appellant

v.

Brian Ray Burke, Trooper, Individually as an Officer of the Arkansas State Police; 

Bill Bryant, Colonel, Individually as the Chief Executive Officer of the Arkansas 

State Police

 Defendants - Appellees

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Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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Submitted: September 22, 2020

 Filed: December 23, 2020 

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Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges. 

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GRUENDER, Circuit Judge. 

The high-speed police pursuit of a speeding vehicle tragically ended with a 

car crash killing Cassandra Braun. Her mother (and estate administrator), Appellant 

Lori Braun (“Braun”), brought this case, alleging constitutional violations against 
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the officer involved in the accident (Appellee Arkansas State Police Trooper Brian 

Burke) and his supervisor (Appellee Director of Arkansas State Police Bill Bryant). 

The district court1 granted summary judgment for the Appellees on all claims. For 

the following reasons, we affirm.

I. 

On the night of October 10, 2016, Trooper Burke was working a hit-and-run

accident in a parking lot along Highway 70. While there, he saw a dark-colored 

sport utility vehicle (“SUV”), with flashing hazard lights, speed past. Trooper Burke 

estimated the SUV was traveling at ninety to ninety-five miles per hour in a fiftyfive mile-per-hour zone. Less than two minutes later, Trooper Burke wrapped up 

the hit-and-run investigation, got into his police cruiser, and turned onto Highway 

70 to pursue the SUV. 

Although Trooper Burke initially activated his emergency lights and sirens, 

he turned them off roughly twenty seconds later. During the pursuit, his speed

averaged over ninety miles per hour, peaking at more than 110 miles per hour. In a 

later affidavit, Trooper Burke stated that he believed the SUV “posed a serious risk 

to the motoring public, thus creating a dangerous situation.” “Believing that there 

was an emergently dangerous situation, [he] decided to try and stop the vehicle in 

order to end the risk to the public.”

As Trooper Burke headed east on Highway 70 searching for the SUV, 

Cassandra Braun was a passenger in a car driving west on the same highway. 

Roughly eight miles from where Trooper Burke started, Cassandra Braun’s car 

turned left, entering Burke’s lane. Although Trooper Burke tried to stop his car, he 

was unable. The resulting crash killed Cassandra Braun and seriously injured

Trooper Burke. 

1

The Honorable Billy Roy Wilson, United States District Judge for the Eastern 

District of Arkansas.
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Braun brought this case under 42 U.S.C. § 1983, arguing Trooper Burke 

violated Cassandra Braun’s substantive due process right to life under the Fourteenth 

Amendment. Braun further claimed that Director Bryant violated Cassandra 

Braun’s rights by failing to properly train, supervise, or discipline Trooper Burke. 

The district court granted summary judgment for Appellees on all claims, finding no 

constitutional violations. Braun appeals.

II.

We review the district court’s grant of summary judgment de novo, viewing 

the record in the light most favorable to, and drawing all reasonable inferences for, 

the nonmovant. Jones v. Frost, 770 F.3d 1183, 1185 (8th Cir. 2014). “Summary 

judgment is proper when there is no genuine dispute of material fact and the 

prevailing party is entitled to judgment as a matter of law.” Id.

To establish a substantive due process violation under the Fourteenth 

Amendment, Braun must show that Trooper Burke’s conduct was “so egregious, so 

outrageous, that it may fairly be said to shock the contemporary conscience.” See 

Terrell v. Larson, 396 F.3d 975, 978 (8th Cir. 2005) (en banc).2

 In evaluating her

substantive due process claim, we first must determine what level of culpability

Braun must prove to demonstrate Burke’s behavior was conscience shocking. See 

id. Negligence is never enough. Id. Deliberate indifference makes sense “only 

when actual deliberation is practical.” Id. (quoting Cty. of Sacramento v. Lewis, 523 

U.S. 833, 851 (1998)). But, typically—and especially in “rapidly evolving, fluid, 

and dangerous situations”—the plaintiff must show an intent to harm. Id. Here, 

Braun argues we should apply the deliberate indifference standard and implicitly 

concedes she cannot satisfy a higher standard. Conversely, Appellees argue we 

should require an intent to harm. 

2

Braun must also show the conduct violated a fundamental right, but we need 

not address that part of the inquiry here. See Terrell, 396 F.3d at 978 n.1.
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In Lewis, the Supreme Court held that the intent-to-harm standard applies 

when an officer is engaged in a high-speed chase of a suspect. 523 U.S. at 854. 

Expounding on this principle in Terrell, we extended the intent-to-harm standard “to 

an officer’s decision to engage in high-speed driving in response to other types of 

emergencies.” 396 F.3d at 979. Whether an officer was responding to an 

“emergency” is a subjective, not objective, inquiry. Id. at 980. Accordingly, we will 

accept an officer’s statement that he believed he was responding to an emergency

unless it is “so preposterous as to reflect bad faith.” Sitzes v. City of W. Memphis, 

606 F.3d 461, 469 (8th Cir. 2010). 

Here, Trooper Burke was pursuing an SUV traveling at night at a high speed 

with its hazard lights flashing. He estimated the SUV was traveling nearly 100 miles 

per hour, almost twice the fifty-five mile-per-hour speed limit. Crucially, Trooper 

Burke’s affidavit states that he believed this was an “emergently dangerous” 

situation that “posed a serious risk to the motoring public.” The affidavit further 

states that Trooper Burke believed his pursuit was necessary to end this dangerous 

situation. He thus believed he was responding to an emergency, triggering the intentto-harm standard. 

Braun’s contrary arguments miss the mark. First, pointing to Terrell and 

Sitzes, she seems to suggest that our prior decisions extend the intent-to-harm 

standard only to situations where officers respond to an emergency call, not 

(presumably) emergencies officers witness themselves. Not so. Although the 

officers in Terrell, 396 F.3d at 977, and Sitzes, 606 F.3d at 464, were responding to

emergency calls, we never suggested the way an officer learns of an emergency is 

crucial. Rather, and as the Supreme Court has explained, the determining factor is

the unavailability of “actual deliberation.” See Lewis, 523 U.S. at 851. This might 

be present when an officer responds to an emergency call or when, as here, an officer 

witnesses an emergency firsthand. 
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Second, Braun asks us to reject as preposterous Trooper Burke’s belief that 

the speeding SUV constituted an emergency because he finished his hit-and-run 

investigation and “saunter[ed]” to his car before pursuing the SUV. For one, Braun 

overstates the delay. Trooper Burke pursued the SUV less than two minutes after it 

raced past. Cf. Terrell, 396 F.3d at 977, 980 (applying the intent-to-harm standard 

to officers who received an emergency call while eating dinner, were ten miles from 

the emergency, and were twice told they were not needed). Regardless, we rejected 

this precise argument in Sitzes. 606 F.3d at 468 (“[T]he amount of time [an officer] 

had to deliberate on his actions is not, by itself, sufficient to render the intent-toharm standard inapplicable.”). Braun also claims that Trooper Burke’s failure to use 

his emergency lights or siren for most of the pursuit shows he did not really believe 

this was an emergency. But, again, Braun’s argument runs headlong into Sitzes. 

There, we held that an officer’s failure to activate emergency lights or siren, while 

“arguably incompatible with a belief that he was responding to an emergency,” was 

insufficient to overcome the officer’s contrary affidavit. 606 F.3d at 469. So too 

here.

Indeed, our decision in Sitzes is generally instructive. There, an officer 

learned from a police dispatcher that someone had been assaulted and robbed of $55 

in a Wal-Mart parking lot. Id. at 464. The officer responded (even though another 

officer was already en route), driving at speeds of at least eighty miles per hour in a 

thirty mile-per-hour zone on the wrong side of the road. Id. We seriously doubted 

the parking lot heist constituted an actual emergency. Id. at 469. Still, we held that

the officer’s affidavit stating he believed he was responding to an emergency was 

not so preposterous as to reflect bad faith. Id. Even more so here, where the officer 

was facing an active threat to public safety, we are unwilling to find Trooper Burke’s 

belief preposterous.

Finally, Braun insists that speeding does not constitute an actual emergency. 

This argument goes nowhere. Again, the emergency inquiry is a subjective, not 

objective, one.
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In sum, Trooper Burke believed he was responding to an emergency, and thus 

we apply the intent-to-harm standard. This resolves Braun’s claim against him, as 

she does not even argue, much less present any evidence, that he intended to harm 

anyone. Therefore, the district court correctly granted summary judgment for 

Trooper Burke on Braun’s substantive due process claim because she failed to 

establish a constitutional violation. 

Consequently, the district court also rightly granted summary judgment for 

Director Bryant. Braun’s failure-to-train-or-supervise claim against Director Bryant 

requires an underlying constitutional violation. White v. Jackson, 865 F.3d 1064, 

1076 (8th Cir. 2017); Brockinton v. City of Sherwood, 503 F.3d 667, 673 (8th Cir. 

2007). Because Braun’s claim against Trooper Burke fails, so does her claim against

Director Bryant.

 

For the foregoing reasons, we affirm. 

COLLOTON, Circuit Judge, concurring.

I join the opinion of the court and submit these observations regarding the 

separate concurring opinion that follows.

 In Terrell v. Larson, 396 F.3d 975 (8th Cir. 2005) (en banc), this court held 

that in determining the requisite level of culpability to prove a substantive due 

process claim against a law enforcement officer, there is no legally significant 

distinction between high-speed driving in pursuit of a suspect and high-speed driving 

in response to other types of emergencies. Id. at 978-979. The court rejected the 

use of an objective standard to determine whether a particular situation constitutes 

an emergency that triggers the “intent-to-harm” standard of fault that applies to highspeed pursuits under County of Sacramento v. Lewis, 523 U.S. 833 (1998). Because 

“substantive due process liability is grounded on a government official’s subjective 

intent, and because the intent-to-harm standard applies ‘when unforeseen 

circumstances demand an officer’s instant judgment’ and ‘decisions have to be made 
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in haste, under pressure, and frequently without the luxury of a second chance,’” the 

court ruled that “this issue turns on whether the deputies subjectively believed that 

they were responding to an emergency.” Id. at 980 (quoting Lewis, 523 U.S. at 853). 

The “intent-to-harm” standard thus applies to a substantive due process claim both 

when an officer believes that he is pursuing a suspect and when an officer believes 

that he is responding to another type of emergency. The suggestion of the 

concurrence, post, at 8, that there is a “legally significant” distinction between the 

two types of cases runs counter to Terrell. 

More significantly, the concurrence asserts that our decision in this case 

“helps illustrate a growing circuit split” on the level of culpability required to 

establish a substantive due process claim. Post, at 9. The suggested conflict in 

authority, however, is illusory. In Dean v. McKinney, 976 F.3d 407 (4th Cir. 2020), 

the defendant officer acknowledged that an “emergency” call had been cancelled, 

and stated affirmatively that he was “backing down” to a non-emergency response. 

Id. at 415-16. At a minimum, there was a factual dispute about whether the officer 

believed in good faith that he was responding to an emergency. In Sauers v. Borough 

of Nesquehoning, 905 F.3d 711 (3d Cir. 2018), which involved a motion to dismiss 

a complaint, the officer allegedly observed only a “summary” or “minor” traffic 

offense, and then pursued the violator at over 100 miles per hour. Id. at 715-16. The 

complaint alleged that there was no emergency, and there was no allegation that the 

officer believed he was responding to an emergency. Id. at 718. Neither of the cited 

cases, therefore, applied a “deliberate indifference” standard of fault in a case where 

it was undisputed that the officer believed he was responding to an emergency.

As for whether the outcome in this appeal “seems unjust,” post, at 8, it is 

important to bear in mind the limited issue before this court. This case concerns 

only whether the plaintiff’s evidence is sufficient to establish liability for a 

constitutional tort under the concept of substantive due process. We do not address 

whether the state trooper’s actions were prudent as a matter of policy or whether 

such an officer should be liable for harm caused by reckless driving under traditional 

state tort law. The State of Arkansas is free to create a system of tort liability for 
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law enforcement officers that could encompass the conduct at issue here, but the 

Fourteenth Amendment is not “a font of tort law to be superimposed upon whatever 

systems may already be administered by the States.” Paul v. Davis, 424 U.S. 693, 

701 (1976).

GRASZ, Circuit Judge, concurring.

I concur with the court’s opinion. Precedent requires it. But if the outcome 

also seems unjust, I can understand why. Two people tragically died after a state 

trooper sped and endangered the public in order to try to locate a car previously seen 

speeding.

I write separately to address two points. One is a point of factual emphasis 

and the other is simply an observation related to the need for clarity in the interest 

of public understanding as well as the preservation of respect for the rule of law. 

First the point of factual emphasis. This is not a case involving a high-speed 

pursuit of a fleeing suspect. Cf. Helseth v. Burch, 258 F.3d 867, 871 (8th Cir. 2001) 

(en banc) (“We hold that the intent-to-harm standard of [County of Sacramento v. 

Lewis, 523 U.S. 833, 847–49 (1998)] applies to all § 1983 substantive due process 

claims based upon the conduct of public officials engaged in a high-speed 

automobile chase aimed at apprehending a suspected offender.”). The facts, when 

viewed in the light most favorable to Braun, show that this was instead a hunt for a 

suspect whose whereabouts were unclear. That distinction is legally significant. It 

matters because when an officer is not in pursuit of a fleeing suspect, our precedent 

requires the district court to engage in an additional step: determining whether the 

officer subjectively believed he was responding to an “emergency.” See Terrell v. 

Larson, 396 F.3d 975, 980 (8th Cir. 2005) (en banc) (“Under Lewis, the intent-toharm culpability standard applies if they believed they were responding to an 

emergency call.”). While that difference is important for future cases, the result here 

is the same. That is because no facts were presented to create a triable fact on the 

trooper’s subjective belief under Sitzes v. City of West Memphis. See Sitzes, 606 
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F.3d 461, 469–70 (8th Cir. 2010) (“We do not understand this case to establish a per 

se rule that an officer’s self-serving affidavit will always insulate that officer from 

substantive due process liability.”). As a consequence, in this case we must accept 

the trooper’s affidavit stating he believed there was an emergency that required him, 

after concluding his work at the scene of a hit and run accident, to drive ninety-eight 

miles per hour on a public highway without emergency lights or sirens to try to locate 

a car he had earlier seen . . . speeding.

Now to the observation. This case helps illustrate a growing circuit split on 

when and how to apply the requisite level of culpability under County of Sacramento 

v. Lewis, 523 U.S. 833, 847–49 (1998). Compare Dean v. McKinney, 976 F.3d 407, 

414–16 (4th Cir. 2020) (en banc) (looking at objective facts beyond the officer’s 

subjective arguments to decide that deliberate indifference applied), and Sauers v. 

Borough of Nesquehoning, 905 F.3d 711, 715, 717–18 (3d Cir. 2018) (deciding that 

deliberate indifference applied after using objective factors to determine that no 

emergency existed), with Bingue v. Prunchak, 512 F.3d 1169 1176–78 (9th Cir. 

2008) (applying an intent-to-harm standard), and Terrell, 396 F.3d at 980 (“[T]his 

issue turns on whether the deputies subjectively believed that they were responding 

to an emergency.”). A uniform standard, or at least more clarity on when each 

standard applies, would advance respect for the rule of law in this area. This is 

especially true when, as here, there was time to deliberate before engaging in the 

high-speed driving that caused the accident and it was not a situation where the 

circumstances demanded an officer’s instant judgment or a decision under pressure.

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