Estate of Ceaser Stinson v. Joel Streicher
CourtCourt of Appeals for the Seventh Circuit
Date FiledOctober 14, 2026
Docket22-3043
JudgeSykes
StatusPublished
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Full Opinion
In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 22-3043
ESTATE OF CEASER STINSON,
Plaintiff-Appellee,
v.
JOEL STREICHER,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 21-CV-1046-JPS — J.P. Stadtmueller, Judge.
____________________
ARGUED FEBRUARY 22, 2024 — DECIDED OCTOBER 14, 2026
____________________
Before RIPPLE, SYKES, and ST. EVE, Circuit Judges.
SYKES, Circuit Judge. Deputy Joel Streicher of the
Milwaukee County Sheriff’s Office caused a fatal auto acci-
dent while on patrol in his unmarked sheriff’s vehicle. Driv-
ing within the speed limit, he approached a controlled inter-
section as the light turned yellow and then red. But he missed
the light change. He was looking down at his cellphone or
dashboard computer, so he neither slowed down nor
stopped. Instead, he ran the red light, striking a vehicle
2 No. 22-3043
lawfully passing through the intersection. Ceaser Stinson, the
driver of the other car, was killed.
Stinson’s estate brought this suit against Streicher seeking
damages under 42 U.S.C. § 1983 and several state-law theo-
ries. This appeal concerns only the § 1983 claim: The estate
alleges that Streicher violated Stinson’s right to due process
under the substantive component of the Fourteenth Amend-
ment’s Due Process Clause.
It’s well established that an auto accident caused by a law-
enforcement officer is not actionable as a due-process viola-
tion unless the officer’s conduct was so egregious that it
shocks the conscious. County of Sacramento v. Lewis, 523 U.S.
833, 846 (1998). This standard, in turn, requires the plaintiff to
show that the officer intended to cause injury or was deliber-
ately indifferent to impending harm—i.e., that he had actual
knowledge of imminent harm and consciously refused to pre-
vent it. Id. at 848–54; Lisby v. Henderson, 74 F.4th 470, 472–73
(7th Cir. 2023); Flores v. City of South Bend, 997 F.3d 725, 729
(7th Cir. 2021); Hill v. Shobe, 93 F.3d 418, 421 (7th Cir. 1996).
Streicher sought summary judgment on the merits and
based on qualified immunity. He argued that his conduct,
though admittedly negligent, was neither intentional nor de-
liberately indifferent to a known and imminent harm. Regard-
ing qualified immunity, he noted that no case clearly estab-
lished that an officer’s distracted driving violates substantive
due process. The district judge denied the motion, ruling that
a jury should decide whether Streicher’s inattention rose to
the level of a due-process violation and that the issue of im-
munity should await the jury’s verdict on that question.
No. 22-3043 3
That was error. Public officials have qualified immunity
from damages suits arising from their on-duty conduct unless
they violate clearly established federal law. When immunity
is raised at summary judgment, the plaintiff must show that
(1) the evidence supports a finding that the officer committed
the claimed constitutional violation, and (2) it was clearly es-
tablished when the officer acted that his conduct was uncon-
stitutional. These are legal questions for the court.
The estate did not make these showings. The undisputed
evidence, construed in the estate’s favor, does not support a
reasonable inference that Streicher deliberately disregarded
an impending harm. Even if we skipped the merits question
and assumed for the sake of argument that the evidence could
support a triable due-process claim, no case clearly estab-
lishes that an officer’s distracted driving rises to the level of a
due-process violation. Accordingly, Streicher’s immunity is
intact. We reverse and remand for entry of judgment in his
favor.
I. Background
At the time of this accident, Streicher was on duty as a
deputy sheriff in the Milwaukee County Sheriff’s Office and
assigned to patrol the interstate freeway system. On the morn-
ing of January 25, 2020, he started his shift at about 10 a.m.,
driving an unmarked Chevy Tahoe, his designated sheriff’s
vehicle. About 45 minutes after starting his shift, he stopped
at the Milwaukee County Safety Building for a bathroom
break. While there he opened a dating application known as
“Zoosk” on his personal cellphone and exchanged a series of
sexually explicit messages with a woman he had met on the
app. Her last message to him was at 10:45 a.m., and he re-
sponded at 10:52 a.m.
4 No. 22-3043
At about 11 a.m., Streicher returned to his vehicle and
headed for the interstate to begin his freeway patrol. Driving
northbound on North 10th Street near the Safety Building,
Streicher approached a controlled intersection at North 10th
and West State Streets as the light turned yellow and then red.
His speed was 29 to 30 miles per hour, within the speed limit
of 30 miles per hour. But he was looking down at his phone
or dashboard computer and did not see the light change, so
he made no effort to slow down or stop. Instead, he ran the
red light, driving straight into the intersection from the right-
turn-only lane.
At that moment Ceaser Stinson was lawfully driving
through the intersection on West State Street. At 11:11:02 a.m.
Streicher collided with Stinson’s car. Stinson died at the scene.
An investigator with the Milwaukee Police Department
later determined that Streicher had about 15.5 seconds to slow
and stop his vehicle before the collision—about 4 seconds
while the light was yellow and 11 to 11.5 seconds while the
light was red. Streicher admits that he took his eyes off the
road and completely missed the light change. He says he was
looking down at his dashboard computer. The police report
confirms, however, that he unlocked his phone 26 seconds be-
fore the crash, though the phone registered no further user
interaction.
During those 15.5 seconds, Streicher continued to drive at
or just under the speed limit (29 to 30 mph) for about 500 feet.
He does not remember seeing Stinson enter the intersection,
nor does he remember seeing another car that entered the in-
tersection five seconds earlier.
No. 22-3043 5
The foregoing facts are not in dispute, and the cause of the
accident is clear. Streicher took his eyes off the road for a du-
ration of 15.5 seconds—he was looking at either his phone or
his dashboard computer (or perhaps both)—so he ran the red
light and struck Stinson’s vehicle. Put simply, Streicher’s dis-
tracted driving caused the accident.
It’s also undisputed that Streicher was not always a model
officer. The last 15 years of his tenure at the Milwaukee
County Sheriff’s Office featured reprimands for violations of
department policy and state law. In 2007 he was reprimanded
for violating department policy for his role in a residential
search without lawful justification. In 2018 the Wisconsin
Department of Justice caught him soliciting an undercover
agent for sex over the internet; he pleaded guilty to misde-
meanor disorderly conduct and was disciplined by the de-
partment. Also in 2018: Streicher was involved in another on-
duty auto accident. In July of that year, he drove straight
through a controlled intersection from a left-turn-only lane,
colliding with the vehicle in the lane next to him that had the
right-of-way.
Streicher’s career as a deputy sheriff came to an end after
the January 2020 crash that caused Stinson’s death. He re-
signed his position and pleaded guilty to one count of homi-
cide by negligent operation of a vehicle. See WIS. STAT.
§ 940.10(1).
Stinson’s wife and estate filed suit in state court against
Streicher, Milwaukee County, and the county’s insurer, seek-
ing damages under § 1983 for violation of Stinson’s
Fourteenth Amendment right to due process and several
state-law theories of recovery. The defendants removed the
case to federal court. The district judge narrowed the claims
6 No. 22-3043
at the pleading stage, dismissing the § 1983 claim brought by
Stinson’s wife and the estate’s § 1983 claim against the
county’s insurer. 1
The case then proceeded to discovery, and the defendants
eventually moved for partial summary judgment on the
§ 1983 claim—both on the merits and based on Streicher’s as-
sertion of qualified immunity. The parties submitted an
agreed statement of facts in connection with the motion; our
account of the facts is drawn from that statement. The crux of
the defendants’ merits argument was that the evidence we’ve
just recounted falls short of the demanding legal standard for
a due-process claim.
In brief, the substantive component of the Fourteenth
Amendment right to due process protects against arbitrary or
oppressive abuses of government power, but “only the most
egregious official conduct can be said to be arbitrary in the
constitutional sense.” Lewis, 523 U.S. at 846 (quotation omit-
ted). The misconduct must “shock the conscience.” Id. at 855.
Only intentionally inflicted harm, or harm caused by a public
official’s deliberate indifference to impending harm, rises to
the level of a potential due-process violation. Id. at 848–54.
Negligence doesn’t suffice. Id. at 848–49.
The defendants argued that the evidence does not support
an inference that Streicher acted intentionally or with deliber-
ate indifference to imminent harm. With respect to qualified
immunity, Streicher argued that it was not clearly established
1 The parties included Stinson’s wife’s name in the caption of their appel-
late filings. But the district judge dismissed her § 1983 claim in its entirety
and this appeal concerns only the estate’s claim against Streicher, so she is
not a proper appellee. We thus omit her name from the caption.
No. 22-3043 7
at the time of the accident that distracted driving constitutes
a due-process violation.
The judge denied the motion, holding that a jury should
decide whether Streicher’s degree of inattention amounted to
a violation of Stinson’s right to due process. The judge rea-
soned that the question of Streicher’s intent was best left to
jurors who could assess his credibility and any competing in-
ferences. But the judge also concluded that the reason for
Streicher’s inattention was immaterial, so a jury would not
need to resolve that question. In the judge’s view, it did not
matter whether the officer was looking at his law-enforcement
computer or his cellphone at the time of the accident. Nor was
Streicher’s past misconduct relevant. The judge determined
that the officer’s misdemeanor conviction, disciplinary his-
tory, and prior on-duty collision were both immaterial and in-
admissible. Finally, the judge concluded that a ruling on the
question of qualified immunity should await the jury’s find-
ing on the constitutional question.
As permitted by Mitchell v. Forsyth, 472 U.S. 511 (1985),
Streicher appealed the denial of his motion as it pertained to
his assertion of qualified immunity. 2
II. Discussion
“Government officials enjoy qualified immunity from suit
under § 1983 unless their conduct violates clearly established
2 Milwaukee County initially appealed along with Streicher. We issued an
order noting that the county is not a proper appellant because the defense
of qualified immunity may be asserted only by public officials, not by the
agencies that employ them. Allman v. Smith, 790 F.3d 762, 763 (7th Cir.
2015). The county agreed and moved to voluntarily dismiss its appeal. We
granted the motion.
8 No. 22-3043
law.” Zorn v. Linton, 607 U.S. 568, 571 (2026) (per curiam). Im-
munity attaches unless the official (1) “violated a federal stat-
utory or constitutional right, and (2) the unlawfulness of [his]
conduct was clearly established at the time.” District of Colum-
bia v. Wesby, 583 U.S. 48, 62–63 (2018) (quotation omitted).
“[Q]ualified immunity is an immunity from suit rather
than a mere defense to liability.” Plumhoff v. Rickard, 572 U.S.
765, 771–72 (2014) (alteration in original) (quotation omitted).
Accordingly, although an order denying summary judgment
ordinarily is not an appealable final decision under 28 U.S.C.
§ 1291, an order denying a motion for judgment based on im-
munity is immediately appealable under § 1291 and the
collateral-order doctrine. Mitchell, 472 U.S. at 527–30. As the
Supreme Court has explained, the “immunity issue is both
important and completely separate from the merits of the ac-
tion.” Plumhoff, 572 U.S. at 772. It cannot be “effectively re-
viewed on appeal from a final judgment because by that time
the immunity from standing trial will have been irretrievably
lost.” Id. Without an immediate appeal, “a pretrial order
denying qualified immunity is effectively unreviewable.”
McGee v. Parsano, 55 F.4th 563, 570 (7th Cir. 2022).
The estate nonetheless urges us to dismiss Streicher’s ap-
peal for lack of jurisdiction because the district judge did not
specifically address the substance of the qualified-immunity
defense. This argument relies on the Supreme Court’s deci-
sion in Johnson v. Jones, 515 U.S. 304 (1995). But the Johnson
exception to the Mitchell rule is “narrow” and applies only to
appeals of rulings “center[ed] on pure questions of historical
No. 22-3043 9
fact—questions of who did what, when or where, how or
why.” McGee, 55 F.4th at 570–71 (quotation omitted).
Put more succinctly, Johnson holds only that “a pretrial ap-
peal based on a defense of qualified immunity cannot be used
to contest issues of fact.” Blackmon v. Jones, 132 F.4th 522, 524
(7th Cir. 2025). But “a defendant who denies some or all of a
complaint’s factual allegations is free to argue that, even if all
factual matters are taken favorably to the plaintiff, qualified
immunity is available.” Id. A pretrial immunity appeal is ap-
propriate when the defendant focuses on legal issues—most
notably, whether the plaintiff’s claim “rests on clearly estab-
lished law.” Watts v. Jones, 177 F.4th 820, 822 (7th Cir. 2026).
Streicher is not using this appeal to challenge factual mat-
ters. He confines himself to the agreed facts and argues that
he is entitled to qualified immunity even if the evidence is
viewed in the estate’s favor. It’s not entirely clear why the dis-
trict judge declined to engage with the immunity issue, which
was fully raised and briefed in the district court. But the
judge’s decision to sidestep it does not deprive Streicher of his
right to an immediate appeal to “present arguments about the
state of the law.” Id.
Appellate jurisdiction is secure, so we return to the main
event. To repeat, qualified immunity shields public officials
from suits for damages under § 1983; the “shield is pierced”
only if “(1) officers violate the Constitution or a federal statu-
tory right and (2) their conduct is clearly established as un-
lawful.” Davis v. City of Elgin, 180 F.4th 1023, 1026 (7th Cir.
2026) (citing Wesby, 583 U.S. at 62–63).
Qualified immunity is an affirmative defense, but when
it’s asserted at summary judgment, the plaintiff has “the
10 No. 22-3043
burden of demonstrating both that the defendant violated a
constitutional right and that the constitutional right was
clearly established at the time.” Mabes v. Thompson, 136 F.4th
697, 705 (7th Cir. 2025). In short, qualified immunity is the
baseline; the plaintiff has the burden to defeat it. Russell v.
Comstock, 167 F.4th 984, 989 (7th Cir. 2026).
Accordingly, Streicher is entitled to judgment unless the
estate can show that (1) the evidence is sufficient to support a
finding that he violated Stinson’s right to substantive due pro-
cess, and (2) it was clearly established at the time of the acci-
dent that his conduct was unconstitutional. We review an or-
der denying summary judgment de novo, construing the evi-
dence in the light most favorable to the estate. McGee, 55 F.4th
at 570.
“A right is clearly established when it is sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right.” Zorn, 607 U.S. at 572
(quotation omitted). Conversely, “[a] right is not clearly estab-
lished if existing precedent does not place the constitutional
question beyond debate.” Id. (quotation omitted). The legal
rule “must have a sufficiently clear foundation in then-
existing precedent”—that is, it “must be settled law.” Wesby,
583 U.S. at 63 (quotation omitted). There is also a requirement
of specificity: The legal rule on which the claim relies must be
particularized to the facts of the case. Id. The Supreme Court
has “repeatedly stressed that courts must not define clearly
established law at a high level of generality.” Id. (quotation
omitted). The relevant precedent must be specific enough so
that “every reasonable official would interpret it to establish
No. 22-3043 11
the particular rule the plaintiff seeks to apply.” Id. The Court
has described this as a “demanding standard.” Id.
The estate has not carried its burden to overcome qualified
immunity. As we’ve explained, the substantive component of
the Due Process Clause protects against arbitrary or abusive
official conduct, but “only the most egregious official con-
duct” is arbitrary as a constitutional matter. Lewis, 523 U.S. at
846. The “shocks the conscience” requirement is the touch-
stone. Id. This standard does not lend itself to easy applica-
tion, but in Lewis the Supreme Court provided some general
principles.
Lewis involved a § 1983 claim arising from a high-speed
police chase of a fleeing motorcycle; the pursuit reached
speeds of 100 miles per hour and ended in a crash, killing the
fleeing suspect’s 16-year-old passenger. Id. at 836–37. The
teenager’s parents and estate sued for damages alleging a vi-
olation of the victim’s right to substantive due process.
The Court rejected the claim, emphasizing that “the
Fourteenth Amendment is not a font of tort law to be super-
imposed upon whatever systems may already be adminis-
tered by the States.” Id. at 848 (quotation omitted). The Court
grounded its analysis on the “shocks the conscience” stand-
ard and sketched a range of conduct that “points clearly away
from liability, or clearly toward it” by loosely analogizing to
the “spectrum of culpability” in tort law. Id. at 846–48. At one
end of the spectrum is “negligently inflicted harm,” which
falls “categorically beneath the threshold of constitutional
due process.” Id. at 849. At the other end is conduct “intended
to injure in some way unjustifiable by any government inter-
est,” which is the sort of conduct “most likely to rise to the
conscience-shocking level.” Id.
12 No. 22-3043
Between these two poles lies a gray area: Conduct that is
“more than negligence but less than intentional conduct … is
a matter for closer calls.” Id. (quotation omitted). The Court
said that some cases falling within this “middle range”—for
example, abuses of power committed with the degree of in-
tent akin to the “deliberate indifference” standard in Eighth
Amendment law—might be actionable as a Fourteenth
Amendment violation if the conduct is egregious enough to
shock the conscience. Id. at 849–54. The police chase at issue
in Lewis fell within this middle range, but it failed “to meet
the shocks-the-conscience test.” Id. at 854. The Court held that
in cases involving a high-speed police chase aimed at appre-
hending a fleeing suspect, “only a purpose to cause harm un-
related to the legitimate object of arrest will satisfy the ele-
ment of arbitrary conduct shocking to the conscience.” Id. at
836.
Our case involves a police officer’s distracted driving, not
a high-speed chase of a fleeing suspect. But the principles ar-
ticulated in Lewis establish general guideposts. We’ve had oc-
casion in the past to consider due-process claims arising from
traffic accidents caused by police officers in nonemergency
situations, but no case has addressed inattentive driving.
Hill v. Shobe involved an on-duty police officer who ran a
red light and crashed into another car, killing the driver.
93 F.3d at 420. The officer was not responding to any emer-
gency, yet he was driving well over the speed limit after mid-
night with his headlights off and without emergency lights or
a siren to alert other drivers. Id. The victim’s estate sued the
officer for damages under § 1983 alleging a violation of sub-
stantive due process. We rejected the claim, holding that a
due-process violation requires a heightened degree of intent
No. 22-3043 13
equivalent to “[c]riminal recklessness—which is the same as
‘deliberate indifference.’” Id. at 421 (citation omitted). We em-
phasized that the test is subjective: “[I]t is not enough to show
that a state actor should have known of the danger his actions
created. Rather, a plaintiff must demonstrate that the defend-
ant had actual knowledge of impending harm [that] he con-
sciously refused to prevent.” Id.
Hill was decided before Lewis, but our analysis anticipated
the Supreme Court’s. We stressed that § 1983 is not “the
equivalent of a body of general federal tort law,” and “[t]he
fact that a public official committed a common law tort with
tragic results” does not “rise to the level of a violation of sub-
stantive due process.” Id. at 421–22. It was not enough to show
that the official “acted in the face of a recognizable but generic
risk to the public at large.” Id. Instead, we held that an auto
accident caused by a public official is not actionable as a con-
stitutional violation “absent a showing that the official knew
an accident was imminent but consciously and culpably re-
fused to prevent it.” Id. at 421. Because the estate’s claim was
“grounded in negligence,” it did not rise to the level of a due-
process violation. Id.
In Bublitz v. Cottey, 327 F.3d 485 (7th Cir. 2003), we applied
the Lewis framework in a case involving a high-speed police
chase, though with a factual twist. An off-duty officer heard a
radio exchange between other officers who were pursuing a
fleeing robbery suspect. Id. at 486–87. The off-duty officer was
given permission to assist; he drove to the scene and deployed
the “Stinger Spike System” in the path of the fleeing car. The
suspect hit the spikes and careened into another vehicle, kill-
ing the driver and her son. Id. at 487. The victims’ estate sued
the officer alleging a violation of substantive due process.
14 No. 22-3043
Drawing on the principles announced in Lewis, we af-
firmed an order granting summary judgment for the officer.
The “shocks-the-conscience standard,” we said, “require[s]
substantial culpability,” and the “sine qua non of liability in
cases analogous to high-speed chases … is a purpose to cause
harm.” Id. at 491 (quotation omitted). The officer’s conduct in
Bublitz was “[a]t most” negligent; we explained that “mere
negligence is insufficient to give rise to a constitutional viola-
tion.” Id.
At the other end of the spectrum, our decision in Flores v.
City of South Bend illustrates the degree of culpability needed
for a potential due-process claim arising from an officer’s
reckless driving. 997 F.3d 725. Flores involved an officer who
took it upon himself to respond to a routine traffic stop that
two other officers already had under control. Id. at 728. After
hearing exchanges about the stop on his radio, he drove to the
scene even though “no one was asking for external assis-
tance.” Id. It was not an emergency, yet he “roared through a
residential neighborhood” at speeds tripling the posted limit,
reaching 98 miles per hour in a 30-mph zone and making only
“infrequent use of his lights or sirens.” Id. He approached a
controlled intersection with an obstructed view of oncoming
traffic and still blazed ahead, running a red light and crashing
into a car lawfully in the intersection, killing the driver. Id.
The victim’s estate filed a § 1983 suit alleging a claim for
violation of substantive due process. We held that the forego-
ing allegations plausibly stated a claim for a constitutional vi-
olation. Essential to this conclusion was the officer’s inten-
tional decision to drive “blind through an intersection.” Id. at
730. He saw the red light and knew he did not have a clear
view of oncoming traffic, yet he entered the intersection
No. 22-3043 15
anyway at a speed of nearly 100 miles per hour. Id. We con-
trasted these allegations with those in Hill, which “at most”
supported “the inference that the officer created a ‘generic
risk to the public at large.’” Id. at 729 (quoting Hill, 93 F.3d at
421–22). The allegations in Flores, we said, were far more ex-
treme and, if true, could support an inference that the officer
was deliberately indifferent to imminent harm. We held that
the complaint “paint[ed] a far more troubling picture” than in
Hill, stating a plausible due-process claim under the “shocks
the conscience” standard. Id. at 730.
Most recently in Lisby v. Henderson we addressed a due-
process claim arising out of a fatal traffic accident caused by
a law-enforcement officer driving his police vehicle on his
way to work. 74 F.4th 470. The officer was speeding as he
merged onto a highway, traveling at 78 miles per hour—
33 mph over the limit. Id. at 472. He “illegally changed lanes
over a solid white line” and “partially crossed the fog line into
the shoulder of the road.” Id. He did not see a man and
woman walking along the shoulder. Id. Traveling at a speed
of 55 miles per hour, he struck the woman, killing her and her
unborn child. Id.
The victims’ estate sued the officer under § 1983 alleging a
due-process violation, but we rejected the claim. Id. at 471–72.
Synthesizing Hill and Flores, we explained that an officer’s
“mere knowledge that driving at high speed at night could
have fatal consequences is not enough to allege a constitu-
tional violation.” Id. at 473. Instead, the plaintiff must allege
facts supporting an inference that the officer had actual
knowledge of imminent harm and consciously refused to pre-
vent it. Id. The allegations in Lisby did not support such an
16 No. 22-3043
inference, so we affirmed an order entering judgment on the
pleadings in the officer’s favor. Id. at 474.
Each of these cases reaffirmed the principle, drawn from
Lewis, that an actionable claim for violation of substantive due
process requires evidence sufficient to support a reasonable
inference that the defendant officer acted with a heightened
degree of intent—specifically, deliberate indifference to a
known and imminent harm (or criminal recklessness, which
is the same thing). The evidence in this case does not support
such an inference. Officer Streicher’s conduct was less egre-
gious than the conduct alleged in Lisby and Hill, which in-
volved dangerous, high-speed driving by police officers in
nonemergency circumstances. And yet in those cases, we held
that the allegations fell short of the high bar for an actionable
due-process claim.
The evidence here likewise falls short. The agreed facts are
that Streicher took his eyes off the road and looked down at
his phone or dashboard computer (or both) for 15.5 seconds,
driving at the speed limit through a red light from the right-
turn-only lane. Those tragic 15.5 seconds of distracted driving
amounted to negligence—perhaps gross negligence. But
these facts, construed in the estate’s favor, do not support a
reasonable inference that Streicher knew of impending harm
and consciously refused to prevent it. That is, there is no evi-
dence that he acted with deliberate indifference to imminent
harm.
Even if we set the merits question aside and assume for
the sake of argument that the evidence of Streicher’s inatten-
tion is sufficiently egregious for a jury to draw the required
inference of intent, it was not clearly established at the time of
No. 22-3043 17
the accident that a police officer’s distracted driving amounts
to a due-process violation. 3
We’ve already discussed the state of circuit law. The estate
points to our decision in Flores, but as we’ve explained, that
case did not involve distracted driving and thus is not closely
analogous. More to the point, it’s not analogous enough to
support a clearly established constitutional rule that controls
the outcome here. On the contrary, as our opinion in Flores
itself explains, the facts alleged there were extreme, and the
officer’s conduct was criminally reckless. 997 F.3d at 730. No
circuit precedent clearly establishes that an officer’s distracted
driving violates substantive due process.
The estate also relies on several out-of-circuit cases, but
none involves an officer’s distracted driving. And one post-
dates the accident at issue here, so it’s irrelevant for that ad-
ditional reason.
We begin with the Tenth Circuit’s decision in Browder v.
City of Albuquerque, 787 F.3d 1076 (10th Cir. 2015), which in-
volved a fatal accident caused by a police officer’s reckless
joyriding in his police vehicle. After finishing his shift, the of-
ficer returned to his cruiser, “flipped on the emergency lights,
and drove off at an average of about 66 miles an hour on city
surface streets through ten different intersections over a
stretch of 8.8 miles.” Id. at 1077. As he approached the elev-
enth intersection, he saw the light turn red and intentionally
3 The Supreme Court has authorized the lower courts to bypass the step-
one merits question and focus instead on whether the claim rests on
clearly established law. Camreta v. Greene, 563 U.S. 692, 707 (2011); Pearson
v. Callahan, 555 U.S. 223, 236–42 (2009).
18 No. 22-3043
ignored it, hitting the gas and speeding into the intersection
where he crashed into an oncoming car, killing one and griev-
ously injuring another. Id.
The Tenth Circuit concluded that the officer’s intentional
abuse of power was the “very model” of capriciousness—“all
for his personal pleasure, on no governmental business of any
kind.” Id. at 1080. Although speeding and running a red light
may often “signify no more than negligence,” the officer saw
the traffic light turn red and yet intentionally increased his
speed and barreled into the intersection. Id. at 1081. That con-
duct was quintessentially deliberately indifferent, displaying
“a conscious contempt of the lives of others.” Id. It shocked
the conscience. Id.
Needless to say, the circumstances in Browder are far more
egregious than the conduct in this case. A police officer’s in-
attentive driving—even the tragic 15.5 seconds of distracted
driving at issue here—is different in kind.
The estate also relies on Sauers v. Borough of Nesquehoning,
905 F.3d 711 (3d Cir. 2018), but that case likewise involved an
officer’s criminally reckless driving. The officer in question
observed a minor traffic offense and started following the car,
then radioed officers in the next community to take over the
pursuit and stop the car when it reached their jurisdiction. Id.
at 715. But he changed his mind and began to chase the traffic
offender at speeds exceeding 100 miles per hour. Id. Members
of the public observed the officer driving recklessly. He even-
tually lost control of his vehicle while navigating a curve; the
officer crossed the center line and crashed into another car. Id.
One person was killed and another was seriously injured. The
officer pleaded guilty to vehicular homicide and reckless en-
dangerment. Id.
No. 22-3043 19
The Third Circuit held that these allegations plausibly
stated a due-process claim under a state-created danger the-
ory. Id. at 718. The court also held, however, that it was not
clearly established at the time of the officer’s actions that his
conduct could give rise to constitutional liability. Id. at 718–
22. Sauers, like Browder, has nothing to say about a police of-
ficer’s driving while distracted.
The estate also cites the Fourth Circuit’s decision in Dean
ex rel. Harkness v. McKinney, 976 F.3d 407 (4th Cir. 2020), but
that opinion was issued after the accident in this case and thus
does not inform the qualified-immunity analysis. It’s also of
little or no relevance. Dean involved an officer’s reckless,
high-speed driving while en route to a scene—initially in re-
sponse to an emergency dispatch. Id. at 411. After the request
for assistance was downgraded to a nonemergency, the of-
ficer continued to drive at a high rate of speed—83 miles per
hour, far exceeding the 45-mph limit—driving recklessly on a
winding and unlit road, without his lights or siren. Id. at 412.
He lost control on a curve and struck an oncoming car “nearly
head-on.” Id. The court held that the officer’s reckless driving
exhibited deliberate indifference, particularly after he knew
he was no longer responding to an emergency. Id. at 416–17.
He “had over two minutes to deliberate” after the call was
downgraded to a nonemergency, yet he did not change his
behavior. Id. at 417. Dean has little to say about an officer’s
distracted driving.
In a fallback argument, the estate suggests that this is the
“rare ‘obvious case’” where an officer’s conduct is clearly un-
constitutional “even though existing precedent does not ad-
dress similar circumstances.” Wesby, 583 U.S. at 64 (quoting
Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)). This
20 No. 22-3043
narrow exception applies only when an officer’s actions are
“so outrageous” that no reasonable officer “would have be-
lieved [his] conduct was legal,” Leiser v. Kloth, 933 F.3d 696,
704 (7th Cir. 2019), even in the absence of closely analogous
precedent, Wesby, 583 U.S. at 64.
The conduct at issue here does not rise to this level. As we
have discussed at length, Officer Streicher’s distractedness—
regardless of the source—was negligent, perhaps even
grossly negligent; it was not obviously unconstitutional.
For the foregoing reasons, Officer Streicher is entitled to
qualified immunity. We REVERSE the judgment of the district
court and REMAND with instructions to enter judgment in his
favor.