FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARTHUR J. PORTER; CHRISTIE L. 

PORTER,

Plaintiffs-Appellees, No. 07-35974

v. D.C. No.

ARTHUR J. OSBORN,  CV-05-00142-

Defendant-Appellant, A-JWS

and OPINION

JOSEPH WHITTOM,

Defendant. 

Appeal from the United States District Court

for the District of Alaska

John W. Sedwick, District Judge, Presiding

Argued and Submitted

August 6, 2008—Anchorage, Alaska

Filed October 20, 2008

Before: Dorothy W. Nelson, A. Wallace Tashima and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

14579
COUNSEL

Ruth Botstein, Assistant Attorney General, Anchorage,

Alaska, for the defendant-appellant. 

Mark D. Osterman, Mark D. Osterman Law Office, Kenai,

Alaska, for the plaintiffs-appellees.

OPINION

FISHER, Circuit Judge: 

This case raises the question of the appropriate standard of

culpability to apply to a police officer who kills a suspect in

14582 PORTER v. OSBORN
the course of investigating a suspicious car parked alongside

an Alaska highway, under circumstances that suggest the officer may have helped to create an emergency situation by his

own excessive actions. It comes in the context of a lawsuit

brought by the parents of the victim, claiming the officer violated their Fourteenth Amendment substantive due process

right of familial association with their deceased son. They

contend the officer’s actions were so outrageous as to shock

the conscience. The district court found that the parents presented sufficient evidence that the officer’s conduct violated

their constitutional rights to warrant a jury trial, but we are

compelled to conclude it did so by applying an incorrect standard of culpability to the officer’s actions. We therefore

reverse and remand for reconsideration of the officer’s culpability under the proper standard and whether he is entitled to

qualified immunity on summary judgment. 

The plaintiffs and appellees are Arthur J. and Christie L.

Porter (collectively “the Porters”), who brought this suit after

their adult son, Casey Porter, was fatally shot in a brief but

tragic confrontation with two Alaska State Troopers. Among

several federal and state claims, the Porters principally

claimed that their Fourteenth Amendment right of association

was violated by the way in which defendant-appellant Arthur

J. Osborn (“Osborn”) and his fellow trooper Joseph Whittom

(“Whittom”) handled the roadside incident that resulted in

Casey’s death. As we discuss in more detail later, the troopers

were responding to a call about an apparently abandoned

vehicle parked in a highway pull-out area. Osborn, who

arrived on the scene first, discovered the car was in fact occupied by Casey, who apparently had been asleep in the driver’s

seat. In a rapidly escalating confrontation, the troopers

shouted at a startled and confused Casey to get out of his car.

When he failed to comply, both troopers quickly exited their

cars and drew their guns, with Osborn taking the lead in

approaching the car to get Casey to comply. When Casey

rolled down his window but did not move to get out, Osborn

pepper sprayed him through the open window. Casey reacted

PORTER v. OSBORN 14583
in pain and began to drive the car slowly forward toward

Whittom’s patrol car, at which point Osborn fired five shots

at Casey, killing him. Whittom, questioned shortly thereafter

by an investigator, expressed his “shock” that “shots were

fired . . . in a situation like this.” 

The district court dismissed all state law claims and all

claims against Whittom, none of which are before us on this

appeal. As to the Fourteenth Amendment claim, the district

court found that there were enough disputed facts to preclude

granting Osborn summary judgment on qualified immunity

grounds, concluding that a jury could find that Osborn’s conduct shocked the conscience under a clearly established “deliberate indifference” standard of culpability. 

Osborn has appealed, arguing that his actions did not violate a constitutional standard, but even if they did, the deliberate indifference standard was not clearly established at the

time. We conclude that a different and more demanding standard of culpability than deliberate indifference applies.

Rather, in an urgent situation of the kind involved here, the

established standard is whether Osborn acted with a purpose

to harm Casey without regard to legitimate law enforcement

objectives. Whether a jury could find Osborn violated that

standard is not clear on the record before us. Although Osborn

appears to have helped create and even exacerbate the confrontation he then ended by deadly force, the parties and the

district court will need to readdress Osborn’s summary judgment motion under the more stringent purpose to harm standard. We therefore reverse the court’s denial of qualified

immunity and remand for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

Many of the relevant facts are contested or ambiguous, but

on Osborn’s motion for summary judgment any doubts must

be resolved in favor of the Porters’ version of events. See

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1059 (9th Cir.

14584 PORTER v. OSBORN
2006). There is no dispute that it took very little time — probably no more than five minutes — for the entire tragic

encounter to play out. Around 2:00 a.m. on January 4, 2003,

Trooper Whittom received a call from dispatch regarding a

vehicle reported by a highway department employee. The

reported vehicle had been parked for about two and a half

hours at the Kenai Keys pullout, a large parking lot sized area

just off the Sterling Highway in a lightly populated part of the

Kenai Peninsula southwest of Anchorage. There was a light

snow covering the parking area, and no other vehicles around.

The car’s lights had been turned on and off whenever the

highway employee passed. Trooper Osborn also heard the call

and arrived at the scene before Whittom. When Osborn found

the car, he initially thought it may have been abandoned, so

he turned on his headlights and got out of his car to investigate. He returned to his patrol car to call in the license plate

number when “somebody sat up . . . in the drivers seat . . .

very — very fast . . . and grabbed the steering wheel and was

looking right at me.” Osborn testified in his deposition that

although it was very dark outside, his headlights were shining

eye-level with the driver, Casey, and were bright enough to

illuminate the inside of the car. A few seconds later, Casey

started slowly steering his car to go around Osborn. At this

point, Osborn turned on his overhead flashing blue and red

lights “because [Casey] was trying to leave,” which Osborn

was not prepared to allow “because we were investigating a

suspicious vehicle.”

1

 He admitted that the call to dispatch was

the only information at the time indicating Casey’s conduct

required police intervention. 

When Casey did not stop, Osborn moved his car a few

inches forward to try to block him. Casey continued to turn,

1

It is unclear whether Osborn ever verbally identified himself as a

police officer. He did not do so during the tape recorded portion of the

incident. The Porters contend that Casey never knew that Osborn or Whittom were officers, given the darkened conditions and lights in Casey’s

eyes. 

PORTER v. OSBORN 14585
so Osborn allowed him to pass because he did not want Casey

to hit his car. He testified that “as he drove by my vehicle I

looked out my window, we made eye contact and I pointed

and said stop the vehicle . . . something like that.” Osborn

admitted that his window was not down at the time, but

emphasized that he had made a motion as well. Whittom

arrived as Casey began to maneuver around Osborn, and he

tried to pull in front of Casey to stop him from leaving. Whittom’s overhead red and blue lights were on and his headlights

illuminated Casey’s vehicle’s interior. Osborn then got out of

his car and began walking alongside Casey’s slow moving

car, ordering him to stop. It was around this time that Osborn

activated his tape recorder. The fatal events that followed fill

only one page of transcript and approximately two minutes of

tape recording.2

Casey’s car finally stopped about a car’s length away from

Whittom, at which point both officers shouted orders at him

to get out of the vehicle. Whittom did so from either behind

or directly in front of his patrol car door with his service

weapon out, whereas Osborn did so from within touching distance of Casey’s door with his gun in his hand. In the heat of

the moment, Whittom ordered Casey to both get in and get

out of his vehicle, and he later acknowledged that it may have

been confusing to have had two people yelling at once. While

the troopers were ordering Casey out of the car, Casey rolled

his window down. Osborn did not answer Casey when he

asked “what’s wrong, sir?” He explained he thought Casey

was just “buying time” with this question, that at this point

“the contact had already dissolved to a point where he had

shown me by his actions that he was going to ignore anything

but a command such as get out of the car” and that “[a]t this

point he was eluding a police officer.” Osborn continued to

order him to get out while attempting to enter the car through

the front and rear doors.

2The entire transcript is two pages, with the second page recording

Osborn’s and Whittom’s discussion after the shooting. 

14586 PORTER v. OSBORN
Whittom reported that at this point Casey had “a confused

look on his face,” and kept bringing his hands up above and

then below their sight line. This also concerned Osborn, and

when Casey started to crank the window up Osborn sprayed

pepper spray inside the vehicle. Casey went into a fetal position with his hands over his face moaning, “Ahh . . . I didn’t

do nothing!” Whittom ducked into his vehicle to tell dispatch

that Casey had been sprayed, at which point Osborn described

seeing what he called “the calm before the storm”:

Then [Casey’s] head snaps up, straight up, and his

face is looking straight forward, both of his hands

actually reach up and grab the wheel like — like you

would grab a steering wheel if you wanted to tear it

off the steering column. I mean grabbed it. I mean [I]

remember seeing his white knuckles and skin

stretched, both hands on the wheel, right and left, lit

up in Trooper Whittom’s headlights. Then I — and

he looked stone cold straight forward. Obviously

[he] had ignored every command up to that point,

you know, he . . . was not obeying any commands.

And then instantly [the] engine revved what sounded

to me like full throttle and the tires were spinning

and his lights were lighting up Trooper Whittom’s

uniform from his last known position knowing he’s

behind the door, I remember seeing blue in the

lights. And I fired my weapon until the — I heard

the engine down rev and the vehicle was obviously

stopped. 

Less than a minute elapsed between the pepper spray and the

shooting. Whittom admitted that most people try to leave an

area once they have been pepper sprayed and that Casey’s car

never directly hit Whittom; instead, he felt an impact from his

own car, whose front brace was hit by Casey’s car. In his

deposition, Whittom described the impact as something that

“wasn’t hard, it was just kind of a like a little push on my leg

and — and I took a step back. It wasn’t like something hit me.

PORTER v. OSBORN 14587
It was just a real gentle kind of push.” Whittom also admitted

that Casey’s car could not go very fast given the short distance that it had to cover.3

 When asked, “the likelihood of . . .

being harmed behind that patrol car, was that great?” he

responded, “I didn’t perceive it as so.” 

After the accident, around 6:45 a.m., Whittom was interviewed at a nearby post by Dane Gilmore, an investigator

with the Alaska State Troopers. He told the investigator that

he did not think deadly force was necessary because he was

shielded by his vehicle. He explained:

[M]y initial thought was uh . . . the shock . . . I

couldn’t . . . couldn’t believe that shots were fired in

. . . in a situation like this. 

* * *

Um . . . you know . . . I guess from my . . . my perspective, I didn’t see uh . . . that shots were warranted in this situation. Um . . . I didn’t feel any

danger to myself when the sus . . . when the driver

of the . . or the suspect vehicle decided to um . . .

gun it. Um . . . you know he’d already been sprayed

and uh . . . and with the conditions that were . . .

were there um . . . I don’t think that uh . . . you know

it was . . . was good use of force. . . . In . . . in . . .

in my own . . . uh perspective. And . . . and that’s

why I didn’t return fire or . . . or shoot when . . . um

. . . when I saw the vehicle coming towards me. . . .

Because I was shielded by my vehicle. 

Later, after talking with another investigator, Whittom

3During his deposition, Whittom agreed the car could not have been

going very fast but said he was not sure of the speed when the Porters suggested that it was only a mile or two per hour. Immediately after the incident, he suggested the car had been going about five or 10 miles per hour.

14588 PORTER v. OSBORN
retracted this testimony, reasoning that he must have subconsciously perceived a greater danger because he drew his

weapon, took a guard position and released the safety on his

weapon when he heard the engine rev. At no time did the officers see Casey with a gun, nor did they recover a weapon

from the car. 

Originally filed in state court, the Porters’ suit was ultimately removed to federal district court. As is pertinent to this

appeal, their amended complaint alleged that Osborn violated

their Fourteenth Amendment “fundamental liberty interest” in

the society of their child, entitling them to relief under 42

U.S.C. § 1983.4 The district court denied Osborn’s motion for

summary judgment claiming qualified immunity, finding that

the Porters had shown enough to establish the violation of a

clearly established constitutional right. No claims personal to

Casey are before us. The Porters do not bring any claims on

Casey’s behalf because they were not appointed to represent

his estate. The estate proceeded separately against the defendants and settled out of court. The Porters concede that their

claims are therefore limited to their Fourteenth Amendment

rights as Casey’s parents.

STANDARD OF REVIEW

A district court’s denial of qualified immunity is reviewed

de novo. See Kennedy, 439 F.3d at 1059. We must view the

facts in the light most favorable to the nonmoving party. See

id. “If a genuine issue of material fact exists that prevents a

determination of qualified immunity at summary judgment,

the case must proceed to trial.” Serrano v. Francis, 345 F.3d

1071, 1077 (9th Cir. 2003). 

4The Porters brought a host of other claims against other defendants and

under various state laws. None of these alternative claims is at issue here,

as they were either voluntarily dismissed or dismissed by the district court

and subsequently not appealed. 

PORTER v. OSBORN 14589
DISCUSSION

[1] To determine whether Osborn is entitled to qualified

immunity, the first question is whether the facts show a constitutional violation. See Saucier v. Katz, 533 U.S. 194, 201

(2001). “[I]f a violation could be made out on a favorable

view of the [non-moving] parties’ submissions, the next,

sequential step is to ask whether the right is clearly established.” Id.5

[2] Here, the potential constitutional violation involves the

Porters’ Fourteenth Amendment due process right to associate

with their son, Casey. See Curnow v. Ridgecrest Police, 952

F.2d 321, 325 (9th Cir. 1991) (“The Ninth Circuit recognizes

that a parent has a constitutionally protected liberty interest

under the Fourteenth Amendment in the companionship and

society of his or her child . . . .”); see also Moreland v. Las

Vegas Metro. Police Dep’t, 159 F.3d 365, 371 (9th Cir. 1998).

Whether Osborn committed a constitutional violation under

the first step of Saucier’s qualified immunity analysis presents

two issues. First, we must decide the appropriate standard of

culpability to apply to Osborn’s conduct to determine whether

it “shocks the conscience” under the Fourteenth Amendment’s Due Process Clause. See County of Sacremento v.

Lewis, 523 U.S. 833, 846 (1998). Second, it must be determined whether Osborn’s conduct met that standard of culpability, particularly given his role in creating the emergency

that led to his fatally shooting Casey. Because we disagree

with the district court’s determination of the first question and

conclude that a stricter standard of culpability applies, we

remand so the district court may decide the second issue of

whether Osborn’s conduct met the stricter standard.

5The Supreme Court recently granted certiorari in Pearson v. Callahan,

128 S. Ct. 1702 (2008), directing the parties to brief the question of

whether Saucier should be overruled. We proceed under the requirements

of current Supreme Court law. 

14590 PORTER v. OSBORN
A.

[3] We begin by clarifying the standard of culpability for

a due process right to familial association claim. The parties

mistakenly suggest that the choice is between “shocks the

conscience” and “deliberate indifference” as the governing

standard, when in fact the latter is one subset of the former.

The Supreme Court has made it clear, as the district court correctly recognized, that only official conduct that “shocks the

conscience” is cognizable as a due process violation. Lewis,

523 U.S. at 846 (citing Rochin v. California, 342 U.S. 165,

172-73 (1952)). The relevant question on the facts here is

whether the shocks the conscience standard is met by showing

that Trooper Osborn acted with deliberate indifference or

requires a more demanding showing that he acted with a purpose to harm Casey for reasons unrelated to legitimate law

enforcement objectives. See id. at 836. In our cases following

the Supreme Court’s enunciation of the shocks the conscience

test in Lewis, we have distinguished the “purpose to harm”

standard from the “deliberate indifference” standard, recognizing that the overarching test under either is whether the

officer’s conduct “shocks the conscience.” See, e.g., Moreland, 159 F.3d at 372. 

B.

We hold, following Supreme Court precedent and our

cases, that the purpose to harm standard must govern

Osborn’s conduct. Thus, viewing the facts in the light most

favorable to the Porters, they must demonstrate that Osborn

acted with a purpose to harm Casey that was unrelated to

legitimate law enforcement objectives. 

[4] The Supreme Court’s decision in Lewis, and several of

our cases following it, involved high speed police chases that

led to the injury of the plaintiffs or their survivors. The evolution of the case law in this area of the Fourteenth Amendment

— perhaps unsurprisingly — has been deferential to officer

PORTER v. OSBORN 14591
decisions to give chase or use force. After all, these officers

have been simply reacting to the urgent public safety threat of

fleeing motorists in a situation where inaction could be the

most dangerous option. The district court here, however,

declined to apply the purpose to harm standard established by

these cases and instead evaluated the circumstances of

Casey’s shooting under the deliberate indifference standard,

distinguishing Lewis and our cases following it. We recognize

that the district court drew a principled distinction between

police chase cases and the much less obvious public safety

threat Casey posed during Osborn’s roadside investigation,

but our precedent entitles Osborn to the purpose to harm standard of culpability because the “critical consideration [is]

whether the circumstances are such that ‘actual deliberation is

practical.’ ” Moreland, 159 F.3d at 372 (quoting Lewis, 523

U.S. at 851). Due to the rapidly escalating nature of the confrontation between Osborn and Casey, we respectfully disagree with the district court that Osborn had an opportunity

for the kind of deliberation that has been articulated by Lewis

and its progeny. 

[5] In Lewis, the Supreme Court recognized that law

enforcement officers confront a variety of circumstances that

may lead to the use of force, and drew a distinction between

situations that evolve in a time frame that permits the officer

to deliberate before acting and those that escalate so quickly

that the officer must make a snap judgment. Thus, “[a]s the

very term ‘deliberate indifference’ implies, the standard is

sensibly employed only when actual deliberation is practical.”

Lewis, 523 U.S. at 851. Factually, Lewis involved a high

speed police chase of a motorcyclist that resulted in a crash,

killing the cyclist’s teenage passenger. See id. at 837. The

teenager’s survivors alleged that police conduct during the

chase violated due process. See id. The Supreme Court

refused to apply the deliberate indifference standard to high

speed police chases, analogizing to cases involving prison

riots. “Like prison officials facing a riot, the police on an

occasion calling for fast action have obligations that tend to

14592 PORTER v. OSBORN
tug against each other.” Id. at 853. In such an urgent situation,

it concluded, “a deliberate indifference standard does not adequately capture the importance of such competing obligations.” Id. at 852. Instead, it held that “high-speed 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. 

The Court relied principally on Whitley v. Albers, 475 U.S.

312 (1986), an Eighth Amendment prison riot case involving

a guard who had intentionally shot a prisoner to disperse the

rioters. Whitley held that under such circumstances, “a much

higher standard of fault than deliberate indifference has to be

shown for officer liability” — that is, “ ‘whether force was

applied in a good faith effort to maintain or restore discipline

or maliciously or sadistically for the very purpose of causing

harm.’ ” Lewis, 523 U.S. at 852-53 (quoting Whitley, 475

U.S. at 320-21) (emphasis added).6

The Porters argue that Lewis applies only to “unintentional”

or “inadvertent” killings — such as the motorcycle accident

involved there or other innocent bystander types of cases. See,

e.g., Moreland, 159 F.3d at 372 (characterizing Lewis as

involving the “unintentional killing of an individual by law

enforcement officers”); but see Whitley, 475 U.S. at 316

(applying purpose to harm standard to prison officers who

intentionally fired shots at inmates). Although intentionality is

relevant, intent was not central to the Court’s analysis in

either Whitley or Lewis as to which standard to apply. Both

6Although Lewis said that only officer conduct showing a “purpose to

cause harm unrelated to the legitimate object of arrest” violates the Fourteenth Amendment, 523 U.S. at 836, the Court elsewhere refers to the

standard as “intent to harm.” See Id. at 854. We discern no distinction

between the two formulations. Our own precedent has referred to the

Lewis standard as “purpose to harm,” Moreland, 159 F.3d at 372, and “intent to harm,” Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008).

Here, we use “purpose to harm.” 

PORTER v. OSBORN 14593
decisions instead turned on whether the officers had the

opportunity for actual deliberation. Thus, in Moreland, a case

involving an apparently inadvertent shooting of a bystander,

we emphasized that “the critical consideration [is] whether the

circumstances are such that ‘actual deliberation is practical.’ ”

159 F.3d at 372 (quoting Lewis, 523 U.S. at 851). Our precedent has evolved with repeated emphasis on this “critical consideration,” and in deciding the level of culpability to apply

under the shocks the conscience test has declined to parse an

officer’s intentions and initial decisions to use force. See, e.g.,

id. at 373 (addressing officer conduct only after determining

the standard of culpability by reference to the situation the

officers faced); see also Davis v. Township of Hillside, 190

F.3d 167, 170 (3d Cir. 1999) (“Nothing in Lewis suggests that

courts are free to second-guess a police officer’s decision to

initiate pursuit of a suspect so long as the officers were acting

in the service of a legitimate governmental objective . . . .”)

(internal quotation marks omitted). 

[6] In Moreland, police officers responded to a gun fight in

a crowded parking lot, a patently fast paced and urgent threat

to public safety. See Moreland, 159 F.3d at 368. We applied

the purpose to harm standard because the officers had to “address a life-threatening situation” in which they faced competing obligations, namely whether to allow the shooters to

continue firing or to fire upon the shooters to end the threat.

Id. at 372. Similarly, in Onossian v. Block, 175 F.3d 1169,

1171 (9th Cir. 1999), we held that the purpose to harm standard also applies when bystanders, not the suspects themselves, are harmed during a high speed chase. Analogizing

directly to Lewis and Moreland, we again emphasized the

officer’s competing obligations in the “split-second” decision

to give chase. See id. at 1171. Most recently, and after the district court ruled here, we concluded that high speed chases are

inherently emergency situations and declined to break them

into “emergency” and “non-emergency” situations in which

the latter would be evaluated under the deliberate indifference

standard. See Bingue v. Prunchak, 512 F.3d 1169, 1175-77

14594 PORTER v. OSBORN
(9th Cir. 2008). Otherwise we would wind up parsing officers’ “repeated split-second decisions about how best to

apprehend the fleeing suspect in a manner that will minimize

risk to their own safety and the safety of the general public.”

Id. at 1176. Lewis and our cases therefore require that when

an officer encounters fast paced circumstances presenting

competing public safety obligations, the purpose to harm standard must apply. 

At the other end of the spectrum are situations, like the

Eighth Amendment prison cases discussed in Lewis, where

“extended opportunities to do better are teamed with protracted failure even to care.” Lewis, 523 U.S. at 853. Then,

“indifference is truly shocking.” Id. Similarly, we have held

that where officers have ample time to correct their obviously

mistaken detention of the wrong individual, but nonetheless

fail to do so, the suspect’s family members need only plead

deliberate indifference to state a claim under the due process

right to familial association. See Lee v. City of Los Angeles,

250 F.3d 668, 684 (9th Cir. 2001). 

[7] Placed along this spectrum, we are compelled to conclude that the purpose to harm standard must apply here.

Osborn faced an evolving set of circumstances that took place

over a short time period necessitating “fast action” and presenting “obligations that tend to tug against each other.”

Lewis, 523 U.S. at 853. The approximately five-minute altercation between Casey and Osborn that ended in Casey’s

shooting was obviously fast paced — and much shorter in

duration than the typical car chase like those in Lewis, Onossian and Bingue. The situation was also quickly evolving and

escalating, prompting “repeated split-second decisions.”

Bingue, 512 F.3d at 1176. The case the district court found

persuasive, Lee, 250 F.3d at 684 (applying deliberate indifference standard to a wrongful incarceration), is quite different,

involving as it did a completely controlled situation in which

the police committed an obvious and easily detectable mistake

of identity that they had time to detect and correct. The disPORTER v. OSBORN 14595
trict court’s conclusion that Osborn had opportunity for actual

deliberation, and thus that deliberate indifference should

apply, assumed that five minutes was enough time for Osborn

to consider what he was doing before he acted. However, “deliberation” for purposes of the shocks the conscience test is

not so literal a concept. In Lewis itself, the Supreme Court

rejected the deliberate indifference standard for high speed

chases, even though logically an officer giving chase could

deliberate even while accelerating after a suspect. See Lewis,

523 U.S. at 851 n.11 (explaining that the Court did not mean

“ ‘deliberation’ in the narrow, technical sense in which it has

sometimes been used in traditional homicide law”) (emphasis

added). Here the events in the pullout were in constant flux,

with much yelling, confusion and a driver who was refusing

to exit or stop his car. To be sure, the record contains facts

suggesting that Osborn’s own conduct created and agitated

this escalating situation and that his reactions were disproportionate to the situation he faced. Such facts, however, as we

explain below, are more relevant to the next step of the analysis, when the district court determines on remand whether

they may show Osborn’s purpose was to harm Casey for reasons unrelated to legitimate law enforcement objectives. 

[8] In sum, once Casey’s evasive actions began the officers

had to react quickly. Under such circumstances, whether

Osborn’s conduct shocks the conscience must be evaluated

under the purpose to harm standard of culpability. That is

Lewis’ teaching as applied in this circuit. See Bingue, 512

F.3d at 1175 (discussing Lewis, Moreland and Onossian as

requiring purpose to harm where officers must react to an

urgent situation and decide whether to pursue a suspect). 

C.

[9] For the Porters to show that Osborn’s shooting of Casey

shocks the conscience under the purpose to harm standard of

culpability they must prove that his purpose was “to cause

harm unrelated to the legitimate object of arrest.” Lewis, 523

14596 PORTER v. OSBORN
U.S. at 836. More specifically, “[i]t is the intent to inflict

force beyond that which is required by a legitimate law

enforcement objective that ‘shocks the conscience’ and gives

rise to liability under § 1983 . . . .” Davis v. Township of Hillside, 190 F.3d 167, 172 (3d Cir. 1999) (McKee, J., concurring). The parties do not dispute that this standard of

culpability was clearly established at the time of the shooting

in 2003. Thus, whether Osborn is entitled to qualified immunity on summary judgment turns on whether the Porters can

present facts to the district court that would justify a jury finding that Osborn acted with an unconstitutional purpose to

harm Casey. We remand for that determination.7

Although our cases contain guidance mostly about officers’

intentions and actions that do not evidence a purpose to harm,

a close reading of Lewis and our cases following it indicates

what kind of conduct does reveal a purpose to harm. In Lewis

itself, the Supreme Court held that a purely reactive decision

to give chase evidenced no intention to “induce . . . lawlessness, or to terrorize, cause harm, or kill.” Lewis, 523 U.S. at

855. The Supreme Court left open the possibility that liability

can still attach under Lewis where a plaintiff proves particularly objectionable conduct. See Davis, 190 F.3d at 172-73

(McKee, J., concurring). We agree with Judge McKee’s concurring opinion in Davis, a Third Circuit police chase case,

which reasons that where force against a suspect is meant

only to “teach him a lesson” or to “get even” then “Lewis

would not shield the officers from liability even though they

were ultimately effectuating an arrest.” Id. Lewis contemplates such “rare situations where the nature of an officer’s

deliberate physical contact is such that a reasonable factfinder

7The Porters’ argument that Osborn’s actions shock the conscience

under the purpose to harm standard is not waived, as Osborn asserts. The

Porters’ complaint alleged that Osborn’s acts were intentional, willful and

wanton, and their response to the motion for summary judgment argued

that Osborn’s actions were unjustified by any legitimate objective of law

enforcement even though they argued that the deliberate indifference standard was appropriate under the facts here. Osborn has not been prejudiced.

PORTER v. OSBORN 14597
would conclude the officer intended to harm, terrorize or

kill.” Id. at 174 (internal quotation marks omitted). 

This reasoning is entirely consistent with our cases interpreting Lewis. In Bingue, we held that an officer did not act

with purpose to harm where the officer believed he was “responding to an emergency.” 512 F.3d at 1177 (emphasis

added). In Moreland, 159 F.3d at 373, we examined officer

conduct under the purpose to harm standard and held that “because the officers were responding to the extreme emergency

of public gunfire” they did not intend any harm unrelated to

law enforcement objectives. When an officer creates the very

emergency he then resorts to deadly force to resolve, he is not

simply responding to a preexisting situation. His motives

must then be assessed in light of the law enforcement objectives that can reasonably be found to have justified his

actions. 

This is the kind of analysis applied in the analogous jurisprudence governing constitutional claims of excessive force

under the Fourth Amendment, in cases involving claims by or

on behalf of the victim himself. In such a case, the Fourth

Amendment’s reasonableness test applies, see Scott v. Harris,

127 S. Ct. 1769, 1777 (2007), tempered by the special constitutional rules governing deadly force. See Tennessee v. Garner, 471 U.S. 1, 11 (1985); Price v. Sery, 513 F.3d 962, 966-

67 (9th Cir. 2008). Although a different standard of culpability applies to the Porters’ due process claim, this context

implicates precisely the same delicate balancing act between

citizens’ rights to be free from undue police force and the

legitimate safety concerns of officers who make these life and

death decisions. Thus, in both contexts, courts reviewing

deadly force in response to a supposed public safety threat are

presented with a “factbound morass,” especially when on first

glance an officer’s use of deadly force appears disproportionate to the nature of the threat. Price, 513 F.3d at 974, 978

(Fisher, J., concurring) (describing a 24-second confrontation

in which an officer approached a parked car and fatally shot

14598 PORTER v. OSBORN
its driver). In the Fourth Amendment context, this requires

courts to take into account “both the nature of the perceived

threat and the soundness of the officer’s basis for making that

assessment.” Id. (Fisher J., concurring). Similarly, under the

Fourteenth Amendment, Lewis holds that a denial of due process “is to be tested by an appraisal of the totality of facts in

a given case.” Lewis, 523 U.S. at 850. We are unable, on the

record before us, to make the appropriate factbound appraisal

to determine whether Osborn’s actions were undertaken to

“induce . . . lawlessness, or to terrorize, cause harm, or kill”

Casey. Id. at 855. 

[10] Nonetheless, there are several facts relevant to an

unlawful purpose to harm that need to be considered on

remand — that is, to assess whether under the totality of the

circumstances a jury could infer that Osborn was acting for

purposes other than legitimate law enforcement. First is the

nature of the suspicious car and driver Osborn found in the

pull-out near the Sterling Highway. The lone car was stationary and posed no overt threat to officer safety at the outset.

Once Casey started moving the car, he created at least a minimal threat to safety, although hardly on the level of a car

chase. Trooper Whittom reported that he did not feel threatened by Casey’s car, but he and Osborn nevertheless drew

their guns. Second is the nature of the back and forth between

Casey and the troopers. In response to Casey’s rolling his

window down and refusing to exit the vehicle, Osborn precipitously sprayed him with pepper spray, an action that could be

viewed as punishing or harassing when it is unclear whether

Casey even knew he was dealing with law enforcement. Whittom’s testimony suggests Casey’s attempt to drive away may

have been a normal effort to escape further spraying, making

Osborn an active participant in triggering Casey’s flight.

Third and most important is Osborn’s severe and sudden escalation of the situation: where Casey’s only violation was noncompliance, Osborn’s extraordinary response was to fire five

shots, which shocked even Whittom. 

PORTER v. OSBORN 14599
There are other facts suggested by the record that may also

bear on Osborn’s intent, but they are not clearly developed.

For instance, it is not clear whether Osborn was in compliance

with Alaska State Trooper regulations governing the use of

force, or whether expert testimony might show that Casey was

driving slowly away from Whittom at the time he was shot.

Although Osborn may be able to show indisputably that his

actions all accorded with proper law enforcement purposes,

on the record before us, we are unable to decide in the first

instance whether the Porters have presented enough facts to

survive summary judgment. 

CONCLUSION

[11] We hold that the purpose to harm standard governs the

applicable level of culpability needed to shock the conscience

here, because Osborn faced a fast paced, evolving situation

presenting competing obligations with insufficient time for

the kind of actual deliberation required for deliberate indifference. We remand to the district court to review Osborn’s conduct under the proper Fourteenth Amendment standard and

determine whether the facts, when taken in the light most

favorable to the Porters, show that Osborn’s actions shock the

conscience because he acted with a purpose to harm for reasons unrelated to legitimate law enforcement objectives. 

REVERSED AND REMANDED.

14600 PORTER v. OSBORN