UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

EDWIGE BINGUE  v. ELI PRUNCHAK

No. 05-16388

D.C. No. v. CV-04-01085-JCM

Appeal from the United States District Court for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted

June 14, 2007—San Francisco, California

Filed January 15, 2008

Before: Jay S. Bybee, Milan D. Smith, Jr., and

N. Randy Smith, Circuit Judges.

Opinion by Judge Bybee

 In Onossian v. Block, we applied the Supreme Court’s decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), and held that a police officer in a high-speed chase—whether he injures the fleeing suspect or a bystander—is entitled to qualified immunity unless his behavior “shocks the conscience” because it demonstrates an intent “to cause harm unrelated to the legitimate object of arrest.” 175 F.3d 1169, 1171 (9th Cir. 1999) (internal quotation marks omitted). We were not called upon to consider whether the district court must apply this “intent to harm” standard to all high-speed chases, or only those chases that involve “emergencies” or “split-second decisions.” Today we refine our Onossian analysis and hold, following the Eighth Circuit, that police officers involved in all high-speed chases are entitled to qualified immunity under 42 U.S.C. § 1983 unless the plaintiff can prove that the officer acted with a deliberate intent to harm. See Helseth v. Burch, 258 F.3d 867 (8th Cir. 2001) (en banc). The officer involved in the high-speed chase in this case is entitled to summary judgment based on step one of the qualified immunity analysis as set forth in Saucier v. Katz, 533 U.S. 194 (2001)

 The Lewis standard of “intent to harm” applies to all high speed police chases. Cf. Scott, 127 S. Ct. at 1779 (“A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, . . .”).

 We conclude that high-speed police chases, by their very nature, do not give the officers involved adequate time to deliberate in either deciding to join the chase or how to drive while in pursuit of the fleeing suspect. We hold, therefore, that Lewis requires us to apply the “intent to harm” standard to all high-speed chases. Since Prunchak’s actions do not meet this stringent standard, Bingue’s claim fails under the first step of the Saucier analysis and Prunchak is entitled to dismissal. Consequently, we reverse the judgment of the district court and remand for an entry of judgment for Prunchak on the § 1983 claims.

County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)….concluded that even reckless or deliberate indifference was insufficiently shocking to the conscience to form the basis for a substantive due process claim. Reversing our court, the Supreme Court emphasized “that in such circumstances only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation.” Id. The Court concluded that although the officer may have acted irresponsibly, “there [was] no reason to believe that” the officer’s reaction was driven by anything other than his “instinct . . . to do his job as a law enforcement officer.” Id. at 855. Consequently, the Court adopted an “intent to harm” standard holding “that high-speed police 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.

 Bingue attempts to avoid this result and distinguish Lewis on two separate grounds. First, she argues that the cases are distinguishable because, unlike the plaintiff in Lewis, who was fleeing on the motorcycle, Bingue was a mere innocent bystander and, therefore, owed a greater duty of care. We rejected this argument in Onossian v. Block, 175 F.3d 1169, 1171 (9th Cir. 1999), where we held that Lewis applies to injuries resulting from a high-speed police chase regardless of whether the injured victim was a fleeing suspect or an innocent bystander. “As we read the Court’s opinion [in Lewis], if a police officer is justified in giving chase, that justification insulates the officer from constitutional attack, irrespective of who might be harmed or killed as a consequence of the chase.” Onossian, 175 F.3d at 1171. In order to prove a due process violation, our case law requires that a bystander injured in a high-speed police chase “must show that the behavior of the police in [his] case [meets the Lewis standard and] ‘shocks the conscience.’ ” Id. at 1172; see also Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 372-73 (9^th Cir. 1998) (reasoning by analogy from Lewis that police officers “did not violate the plaintiffs’ substantive due process rights to family association when [they] accidentally shot and killed [an alleged bystander], because the officers were responding to the extreme emergency of public gunfire and did not intend to commit any harm unrelated to the legitimate use of force necessary to protect the public and themselves.”).

 Second, Bingue argues that Lewis’ “intent to harm” standard only applies to cases involving “emergency and nearly instantaneous pursuits,” and is not applicable to the situation at hand where Prunchak allegedly had ample time to deliberate. Drawing on language in Lewis, Bingue urges us to adopt the less demanding “deliberate indifference” standard in her case and reserve the “intent to harm” standard for situations where the police “have obligations that tend to tug against each other” and must make decisions “in haste, under pressure, and frequently without the luxury of a second chance.” Lewis, 523 U.S. at 853.

 It remains an open question in our circuit whether the “intent to harm” standard applies categorically to Fourteenth Amendment due process claims arising out of all high-speed police chases, or whether there are some kinds of high-speed chases in which a “deliberate indifference” standard applies.

 The Eighth Circuit has adopted a categorical rule that “the intent-to-harm standard, rather than the deliberate indifference standard, applies to all high-speed police pursuits aimed at apprehending suspected offenders.” Helseth v. Burch, 258 F.3d 867, 871 (8th Cir. 2001)

 An officer attempting to apprehend a suspect fleeing at high speed does not have the luxury of delay; there is no time for reflection and precious little time for deliberation concerning either the decision to join the chase in the first place or the serial decisions about how best to pursue the suspect. The sheer velocity of a high-speed chase necessarily converts each situation into a genuine “emergency.” Trying to sort high-speed chases into the neat categories of “emergency” and “non-emergency” situations is much like trying to bake a cake and having to distinguish between salt and sugar by sight alone: it is a nearly impossible task that has a high likelihood of producing an unpleasant result. Our colleagues on the Eighth Circuit recognized that such a distinction is  unsound under Lewis because:

 it . . . gives too little recognition to the Court’s other bases for [its] holding—its historical reluctance “to expand the concept of substantive due process,” 523 U.S. at 842; its explicit reliance on Whitley v. Albers, 475 U.S. 312, 320 (1986), which adopted the intent to harm standard for a two-hour prison riot, 523 U.S. at 853-54; its doubt whether “it makes sense to speak of indifference as deliberate in the case of sudden pursuit,” 523 U.S. at 851; its recognition that police officers confronting high-speed lawlessness are “subject to countervailing [law] enforcement considerations,” 523 U.S. at 855; its concern that any standard less than intent-to-harm “might cause suspects to flee more often, increasing accidents of the kind which occurred here,” 523 U.S. at 858 (Kennedy, J., concurring); and the belief of at least some Justices that the question of police officer liability for reckless driving during high-speed pursuits should be decided by the elected branches of government, 523 U.S. at 864-65 (Scalia, J., concurring). Helseth, 258 F.3d at 871.

 We agree with the Eighth Circuit and decline to try to draw a distinction between “emergency” and “non-emergency” situations involving high-speed chases aimed at apprehending a fleeing suspect.6

  …the Lewis standard of “intent to harm” applies to all high speed police chases. Cf. Scott, 127 S. Ct. at 1779 (“A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, . . .”).

 With the benefit of hindsight, Prunchak’s decision to join the pursuit may have been ill-advised and his execution may have been careless, but we cannot say that, from the moment Prunchak heard the call over the radio, he did not believe he was responding to an emergency and acted accordingly; poor judgment alone in a high-speed chase does not violate the Fourteenth Amendment. Because Prunchak’s actions do not meet the “intent to harm” standard, he is entitled to judgment under step one of the Saucier analysis.