Nahmod Law

A Unique High-Speed Police Pursuit Case: The Plaintiff Might Win Against The Officer And City

High-speed police pursuit cases often end in serious bodily harm or death not only to the person pursued but to innocent bystanders as well. In most such cases the Fourth Amendment’s excessive force/reasonableness standard does not apply because there is no intentional seizure. Instead, as the Supreme Court held in the seminal decision in County of Sacramento v. Lewis, 523 U.S. 833 (19098), substantive due process applies and the appropriate standard is ordinarily “purpose to do harm,” and not the usual substantive due process standard of deliberate indifference.

This high standard serves at least two purposes: (1) it reflects the fact that these situations involve split-second decision making with no real opportunity to deliberate and (2) it serves a gatekeeper function in keeping such tort-like cases out of the federal. (This is one example of variable constitutional states of mind. Another is the Eighth Amendment)

The Seventh Circuit’s Flores Decision

Now consider Flores v. City of South Bend, 997 F.3d 725 (7th Cir. 2021). “Erica Flores’s life came to an untimely end when Officer Justin Gorny of the South Bend, Indiana, police department careened through residential streets and a red light at speeds up to 98 mph to reach a routine traffic stop he was not invited to aid, crashed into Flores’s car, and killed her.”

The Officer’s Potential Liability Under Substantive Due Process

Here, according to the Seventh Circuit, the decedent’s estate plausibly stated a substantive due process claim against the officer individually and the city for failure to train. The court, citing County of Sacramento, observed that “[i]dentical behavior considered reasonable in an emergency situation might be criminally reckless when state actors have time to appreciate the effects of their actions.” Ruling that deliberate indifference applied here, and not purpose to do harm, since the officer had the opportunity to deliberate, the court then went on to find that the officer’s “reckless conduct, unjustified by any emergency or even an order to assist in a routine traffic stop that five officers had under control, allows the inference that he subjectively knew about the risk he created and consciously disregarded it.” This constituted the requisite criminal recklessness for his liability. “The law does not provide a shield against constitutional violations for state actors who consciously take extreme and obvious risks.”

The City’s Potential Liability for Failure to Train

As to the city’s liability under a failure to train theory–see City of Canton v. Harris, 489 U.S. 378 (1989)–the decedent’s estate also plausibly alleged that the city acted with deliberate indifference because it failed to address the “known recklessness” of its police officers as a group and of the officer here. This was not a “one-free- bite” situation just because the defendant had never killed anyone before. The Seventh Circuit observed: “Notably, failure-to-train liability does not require proof of widespread constitutional violations before that failure becomes actionable; a single violation can suffice where a violation occurs and the plaintiff asserts a recurring, obvious risk.” According to the Seventh Circuit, this principle was not inconsistent with Supreme Court failure to train precedent even though the Court had not yet expressly so held.


Flores demonstrates the importance of determining at the outset in a substantive due process case like this one whether the high-speed pursuit involved the need for quick decision making by police. If it did, then the purpose to do harm standard, virtually impossible to meet in most cases, applies. In this case, though, the officer deliberately insinuated himself into the situation which turned tragic because of his involvement, thereby triggering, according to the Seventh Circuit, the deliberate indifference standard for individual liability, a much easier standard to meet. See, on substantive due process, ch. 3 of Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2022-23 Ed)(West/Westlaw)

As to the city’s potential liability for failure to train, note that the Seventh Circuit acknowledged that in its view–not yet approved by the Supreme Court, and the subject of disagreement in the circuits–a single violation is enough for such liability where there is a recurring and obvious risk even in the absence of a showing of widespread constitutional violations. See, on failure to train liability, ch. 6 of my Treatise.

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Happy New Year to you and your family.

Written by snahmod

January 2, 2023 at 1:54 pm

Posted in Uncategorized

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