PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ___________

                 Nos. 17-2228, 17-2229


         COREY BLAND; VIRGINIA BLAND

                            v.

     CITY OF NEWARK; CITY OF NEWARK POLICE
   DEPARTMENT; NEW JERSEY DIVISION OF STATE
POLICE; STATE OF NEW JERSEY; SERGEANT JAMES
THOMPSON; SERGEANT BRIAN MURPHY; TROOPER
 II THOMAS ESPINOZA; TROOPER II WILLIAM LEGG;
  TROOPER MIGUEL HOLGUIN; TROOPER ANTHONY
      SARDANOPOLI; TROOPER JOHN OLIVEIRA;
 TROOPER STEPHEN RIEFLER; DETECTIVE THOMAS
DEL MAURO; DETECTIVE BRIAN COSTA; DETECTIVE
     DAVID MARTINEZ; SERGEANT THOMAS ROE;
  OFFICER DANNY COSTA; JOHN DOES (1–100); ABC
      ENTITIES (1–100), A Series of Fictitious Names,

  New Jersey State Police, State of New Jersey, Anthony
  Sardanopoli, James Thompson, Brian Murphy, Thomas
        Espinoza, William Legg, Miguel Holguin,
            John Oliveira and Stephen Riefler
                                  Appellants in No. 17-2228
   Thomas Delmauro, David Martinez and Ruben Torres
                              Appellants in No. 17-2229
                     __________

      On Appeal from the United States District Court
                for the District of New Jersey
                  (D.C. No. 2-13-cv-02985)
      District Judge: Honorable Katharine S. Hayden


                Argued March 22, 2018
  Before: SMITH, Chief Judge, HARDIMAN, and BIBAS,
                    Circuit Judges.

                  (Filed: August 15, 2018)

Pamela L. Brause
Peter Ventrice [Argued]
Brause Brause & Ventrice
276 Main Street, P.O. Box 232
Metuchen, NJ 08840

Lucas E. Phillips, Jr. [Argued]
134 Evergreen Place, Suite 301
P.O. Box 2487
East Orange, NJ 07019
      Attorneys for Appellees




                              2
Michael C. Walters [Argued]
Office of Attorney General of New Jersey
Division of Law
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, NJ 08625
       Attorney for All Appellants

Gary S. Lipshutz [Argued]
City of Newark Department of Law
920 Broad Street, Room 316
Newark, NJ 07102
       Attorney for Appellants Thomas Del Mauro, David
       Martinez, and Ruben Torres

Michael H. Freeman
Greenberg Dauber Epstein & Tucker
One Gateway Center, Suite 600
Newark, NJ 07102

Matthew J. Lynch
Office of Attorney General of New Jersey
Division of Law
Richard J. Hughes Justice Complex
25 Market Street
Trenton, NJ 08625
       Attorneys for Appellants State of New Jersey, New
       Jersey State Police, James Thompson, Brian Murphy,
       Thomas Espinoza, William Legg, Miguel Holguin,
       Anthony Sardanopoli, John Oliveira and Stephen
       Riefler




                             3
                        ____________

                 OPINION OF THE COURT
                      ____________

HARDIMAN, Circuit Judge.

       This interlocutory appeal was filed by several law
enforcement officers who were involved to varying degrees in
a prolonged pursuit of a fleeing motorist, Corey Bland. The
pursuit involved the use of lethal force against Bland, who
sustained severe injuries after he was shot between 16 and 18
times. The question presented is whether the District Court
committed legal error when it denied the officers summary
judgment on qualified immunity grounds. Because the
officers’ conduct was within the bounds of the Supreme
Court’s relevant decisions regarding the use of lethal force, we
will reverse.

                                I

                       A. Initial Pursuit

       In the early evening of December 26, 2011, Newark
Police received a report that a black Audi bearing Pennsylvania
license plate number PZK821C had been carjacked at
gunpoint. Approximately three hours later, New Jersey State
Troopers James Thompson and Brian Murphy spotted the
carjacked vehicle in Newark. Appellee Corey Bland was
behind the wheel. The troopers activated their police lights, but
Bland failed to stop. Instead, he accelerated and began to drive
recklessly, running red lights and shutting off his headlights as
he went. The troopers lost sight of the Audi, but an officer from
the Summit Police Department began following it shortly




                               4
thereafter. Bland nearly struck that officer’s vehicle and
collided with an embankment, but he continued driving. He
reached speeds exceeding 100 miles per hour, weaving in and
out of light traffic.

        State Trooper John Oliveira joined the chase in his
marked police car after receiving reports that units from the
State Police and Summit Police Departments were pursuing a
carjacked vehicle. State Trooper Miguel Holguin, 1 driving an
unmarked Chrysler 300 accompanied by State Troopers
Anthony Sardanopoli and Stephen Riefler, got involved after
hearing a radio broadcast by Thompson and Murphy
containing details about the carjacked vehicle. Bland continued
to drive recklessly, frequently changing lanes, disregarding
traffic lights, turning his lights off, accelerating to more than
80 miles an hour in an area with a 25-mile-per-hour speed limit,
and driving over a curb in an empty parking lot, which caused
the Audi to begin to smoke. Despite all this, the Audi was not
disabled, and Bland continued to evade police.

                    B. Lincoln Park Events

       Eventually, Bland began driving the wrong way down
Lincoln Park, a one-way street. While doing so, he collided
both with Thompson and Murphy in their marked state police
car and an occupied Newark Police vehicle. When Bland hit
the Newark police car, he was travelling approximately 25 to
35 miles per hour, and the impact caused the police car to strike
an unoccupied parked car. As a result, the Audi, the police car,
and the unoccupied car became entangled. State Trooper

       1
        Discrepancies exist about the spelling of this trooper’s
name. We adopt the spelling provided by the trooper in his
deposition.




                               5
Thomas Espinoza, who had received a radio transmission
about an ongoing pursuit involving a vehicle carjacked at
gunpoint, arrived on the scene shortly after these collisions.

        Numerous officers surrounded the Audi, including
Murphy, Thompson, Oliveira, Sardanopoli, Espinoza, and
State Trooper William Legg. 2 Many of the officers ordered
Bland to surrender, and one officer attempted to break the
Audi’s window by striking it. During this encounter, the six
state troopers fired a total of 28 shots, none of which hit Bland.
Newark Police Officer Thomas Del Mauro was present at
Lincoln Park, but he did not discharge his weapon.

       There is no evidence in the record that Bland attempted
to surrender at this time. Instead, he revved the Audi’s engine,
spun its tires, and tried to get the vehicle to accelerate. Bland
ultimately freed the Audi from the Newark police car by
reversing and striking the now-unoccupied state police car a
second time. 3 He then drove over a curb and through a public
park.

      Upon exiting the park, Bland continued to speed
through Newark with his lights off, at times on roads populated
with vehicular and pedestrian traffic. Officers and state


       2
       Bland does not identify any actions taken by Riefler or
Holguin at Lincoln Park.
       3
          Both the Newark officers and the state troopers
contend that Bland drove aggressively at the officers as he
attempted to flee, but Bland disputes this characterization. That
dispute is immaterial, however, because all parties agree that
officers were standing less than 10 feet from the Audi as Bland
extricated it from the two vehicles.




                                6
troopers continued to pursue Bland, but Thompson and
Murphy were no longer involved because their vehicle was
disabled when it was struck by the Audi at Lincoln Park.
During this portion of the chase, a state police car struck an
occupied civilian vehicle. Bland eventually drove to the
intersection of 18th Avenue and Livingston Street, where the
most vigorously disputed series of events took place.

                C. The Terminus of the Chase

       At the intersection of 18th and Livingston, the
unmarked Chrysler 300 driven by Holguin allegedly rammed
the Audi, sending the Audi into scaffolding that surrounded a
school. State Troopers Holguin, Sardanopoli, and Riefler
exited the Chrysler 300 and moved toward the Audi, which
remained entangled in the scaffolding. Holguin approached the
driver’s side with Riefler standing behind him, while
Sardanopoli moved to the Audi’s passenger side.

        All three troopers began firing their weapons at the
Audi. Holguin and Riefler testified that they initially
discharged their weapons because Bland refused to comply
with their orders to show his hands and to stop moving and
because he repeatedly threatened to kill the officers.
Sardanopoli stated that he fired his weapon after he saw
Holguin firing. Legg—also on the scene—asserted that he fired
because he could see Bland moving around in the Audi as
Holguin and Riefler discharged their weapons. Bland, for his
part, denied that the troopers shouted any verbal commands or
that he made evasive movements, but he conceded that nothing
in the record contradicts the officers’ allegations that he
threatened to kill them.




                              7
       After the first volley of shots, Riefler approached the
driver’s side of the Audi, whereupon Riefler testified that
Bland attempted to climb through the window while again
threatening to kill him. In response, Riefler fired his weapon
again. Espinoza also discharged his weapon, as did Newark
Officers Del Mauro, Reuben Torres, and David Martinez, who
had heard about the carjacking at roll call earlier that evening.
The Newark officers stated that they fired their weapons
because they saw the Audi moving or heard it revving,
indicating that it was still capable of flight. Bland disputed this
assertion, arguing instead that the Audi became inoperable
once it crashed into the scaffolding. Oliveira, though present,
did not discharge his weapon at the terminus.

       The shooting finally ceased once Riefler observed
Bland slumped over, and a Newark sergeant called for the
officers to hold their fire. Bland was shot between 16 and 18
times, including in the face, chest, and abdomen. He suffered
numerous injuries, including a traumatic brain injury,
respiratory failure, vision loss, and multiple facial fractures. No
gun was recovered from the scene, and no officer observed
Bland with a weapon during the course of the pursuit.

                                II

       Bland and his wife Virginia filed a complaint in the
Superior Court of New Jersey Law Division alleging (among
other things) that Defendants violated Bland’s Fourth
Amendment rights. See 42 U.S.C. § 1983; N.J. Stat. Ann.
§ 10:6-2(c). Defendants removed the case to federal court and
sought summary judgment, claiming qualified immunity.

      After oral argument, the District Court concluded that it
was “not in a position to grant or deny qualified immunity.”




                                

. Instead, it held that a jury must first decide two issues
of material fact: (1) whether the Audi’s engine was revving
(and thus whether the car was capable of moving) after it
crashed into the scaffolding; and (2) whether the officers could
see Bland’s movements inside the vehicle. The District Court
opined that the Supreme Court’s decision in Plumhoff v.
Rickard, 

(2014), issued three years after the
car chase, may decide the “central” question of “whether or not
Corey Bland was an active threat to the officers at the terminus
so as to justify their actions in using deadly force to end that
risk.” App. 73. Accordingly, it denied Defendants’ motion,
including with respect to the three officers who were neither
present nor discharged their weapons at the terminus of the
chase. Defendants moved for a stay of trial, which the District
Court denied. We entered an order staying the district court
proceedings pending the resolution of this timely interlocutory
appeal.

                               III

                                A

        The District Court had jurisdiction under 28 U.S.C.
§§ 1331 and 1367. We have jurisdiction under 28 U.S.C.
§ 1291 pursuant to the collateral order doctrine. Dougherty v.
Sch. Dist. of Phila., 

, 986 (3d Cir. 2014) (citation
omitted). Our jurisdiction lies “only to the extent that the order
turns on an issue of law.” 

marks,
citation, and alteration omitted). We “possess jurisdiction to
review whether the set of facts identified by the district court
is sufficient to establish a violation of a clearly established
constitutional right,” but “we lack jurisdiction to consider
whether the district court correctly identified the set of facts




                                9
that the summary judgment record is sufficient to prove.” 4 

v. City of Philadelphia, 

, 61 (3d
Cir. 2002)). “To the extent we have jurisdiction, this Court
exercises plenary review.” 

is proper only when the record
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A fact is material if it “affect[s] the outcome
of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 

, 248 (1986). In determining whether
a genuine dispute of material fact exists, we view the
underlying facts and draw all reasonable inferences in favor of
the party opposing the motion. 

.

                               B

       “The doctrine of qualified immunity shields officials
from civil liability so long as their conduct ‘does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Mullenix v. Luna, 

, 308 (2015) (per curiam) (quoting Pearson v.
Callahan, 

, 231 (2009)). In resolving questions of
qualified immunity, “courts engage in a two-pronged inquiry:

       4
         The Newark officers argue that the District Court erred
by considering Bland’s expert testimony, which purported to
establish that the Audi was incapable of moving once it crashed
into the scaffolding. We do not have jurisdiction to review this
ruling. See Blaylock v. City of Philadelphia, 

, 409
(3d Cir. 2007) (noting that, in appeals from denials of qualified
immunity, “we lack jurisdiction to review questions of
‘evidence sufficiency’” and must instead confine ourselves to
“pure questions of law”).




                               10
(1) whether the plaintiff sufficiently alleged the violation of a
constitutional right, and (2) whether the right was ‘clearly
established’ at the time of the official’s conduct.” L.R. v. Sch.
Dist. of Phila., 

, 241 (3d Cir. 2016). We may
tackle these steps “in the order we deem most appropriate for
the particular case before us.” Santini v. Fuentes, 

,
418 (3d Cir. 2015) (citation omitted).

        Just two terms ago, the Supreme Court reiterated the
“longstanding principle that clearly established law should not
be defined at a high level of generality,” but must instead “be
particularized to the facts of the case.” White v. Pauly, 137 S.
Ct. 548, 552 (2017) (per curiam) (internal quotation marks
omitted); see also 

. Moreover, at the time
the action is taken, the “legal principle [must] clearly prohibit
the officer’s conduct in the particular circumstances before
him. The rule’s contours must be so well defined that it is clear
to a reasonable officer that his conduct was unlawful in the
situation he confronted.” District of Columbia v. Wesby, 138 S.
Ct. 577, 590 (2018) (internal quotation marks and citation
omitted). Thus, “qualified immunity protects ‘all but the
plainly incompetent or those who knowingly violate the law.’”

(quoting Malley v. Briggs, 

, 341 (1986)).

                               C

       The District Court focused its analysis on the events that
occurred at the terminus of the reckless flight that ensued after
Bland failed to comply with the traffic stop initiated by the
New Jersey State Police. We begin by discussing the deadly
force used by six of the state troopers at Lincoln Park, and we
conclude that they are all entitled to qualified immunity.




                               11
        The Supreme Court has consistently held that officers
either did not violate the Fourth Amendment or were entitled
to qualified immunity when they used deadly force during car
chases similar to the one at issue here. In Brosseau v. Haugen,

(2004) (per curiam), the Court held that an officer
was entitled to qualified immunity after she shot “a disturbed
felon, set on avoiding capture through vehicular flight, when
persons in the immediate area [were] at risk from that flight.”

In Scott v. Harris, 

(2007), the Court
concluded that an officer did not violate the Fourth
Amendment when he “terminate[d] the car chase by ramming
his bumper” into the car of a fugitive whose reckless driving
“posed an actual and imminent threat to the lives of any
pedestrians who might have been present, to other civilian
motorists, and to the officers involved in the chase.” 

384. This was so even though the officer ran the motorist off
the road instead of employing the standard “PIT maneuver” 5 to
get the fleeing vehicle to stop, and this decision caused the
vehicle to run down an embankment and overturn, rendering
the plaintiff a quadriplegic. 

        In Plumhoff v. Rickard, 

(2014), decided
after the events giving rise to this suit, the Court held that
officers did not violate the Fourth Amendment and
alternatively were entitled to qualified immunity when they
fatally shot a fugitive whom the officers reasonably believed
was “intent on resuming” a chase that “pose[d] a deadly threat
for others on the road.” 

A year later, in Mullenix v.


       5
          In a Pursuit Intervention Technique maneuver, the
pursuing vehicle applies pressure to the rear of the fleeing
vehicle, causing the fleeing vehicle to turn abruptly and come
to a stop.




                               12
Luna, 

(2015), the Court concluded that an
officer who shot and killed a motorist during a high-speed
pursuit in which the fugitive threatened to kill police officers
was entitled to qualified immunity, even though the officer’s
decision to shoot defied his supervisor’s orders. 

312.

        Like the cases just mentioned, Bland’s behavior
threatened the safety of the officers, as well as the public at
large. Before shots were fired at Lincoln Park, Bland drove at
high speeds, disregarded traffic signals, drove the wrong way
down a one-way street, collided with two occupied police
vehicles, and failed to comply with orders to surrender. As the
gunfire erupted, he repeatedly attempted to flee from police
and state troopers, including by trying to drive with officers
standing in close proximity to the Audi. And he engaged in all
of this behavior in a vehicle that had been reportedly taken at
gunpoint a few hours earlier. Bland does not direct us to any
caselaw indicating that, especially in light of the precedent just
discussed, “only someone plainly incompetent or who
knowingly violates the law would have perceived a sufficient
threat and acted as [the state troopers] did” in this situation.

(internal quotation marks and
alteration omitted); see also Fields v. City of Philadelphia, 

, 361 (3d Cir. 2017) (noting that clearly established
rights are derived either from binding Supreme Court and
Third Circuit precedent or from a “robust consensus of cases
of persuasive authority in the Courts of Appeals” (citation
omitted)). Given the troopers’ reasonable belief that Bland was
armed, and the mortal threat that his conduct posed to those
around him, the troopers who discharged their weapons at
Lincoln Park did not violate Bland’s clearly established
constitutional rights. And because Thompson, Murphy, and




                               13
Oliveira fired their weapons only at this location, they are
plainly entitled to qualified immunity.

                                D

       The events at the terminus of the car chase present a
more complicated picture, but we reach the same conclusion
because Bland identifies no caselaw indicating that the officers
violated clearly established law extant in 2011. See Anderson
v. Creighton, 

, 639 (1987). He instead states in
conclusory fashion that “every . . . reasonable member of law
enforcement should be aware that [the officers’] conduct
would constitute excessive force.” Bland Br. 36. In support,
Bland argues that the officers were not in a position to see
whether he made threatening movements inside the vehicle,
and that the Audi’s impact with the scaffolding rendered it
inoperable, bringing the car chase to an end. 6 As a result, Bland
contends that Brosseau and Scott no longer control, and we
should instead look to Tennessee v. Garner for guidance. In

       6
         After the parties submitted their summary judgment
papers, Bland received a report from an automotive expert
concerning whether the Audi could have moved after it
collided with the scaffolding. The report contained pictures
taken after the incident, including one that purportedly showed
the driver’s side tinted window in one piece on the ground. At
oral argument, Bland contended that this photograph
demonstrated that the window was up during the final moments
of the chase, meaning that the officers could neither have seen
what Bland was doing inside the Audi nor heard his death
threats. We need not decide whether the District Court properly
considered this evidence because, even assuming that its
decision to do so was correct, Bland has failed to show that the
officers violated clearly established law.




                               14
Garner, the Supreme Court held that “if the suspect threatens
the officer with a weapon or there is probable cause to believe
that he has committed a crime involving the infliction or
threatened infliction of serious physical harm, deadly force
may be used if necessary to prevent escape, and if, where
feasible, some warning has been given.” Tennessee v. Garner,

, 11–12 (1985). Applying that standard, the Court
concluded that an officer violated the Fourth Amendment by
shooting an “unarmed, nondangerous” suspect in the back of
the head as he attempted to flee the scene of a burglary. 

        Bland’s reliance on Garner is misplaced. The Supreme
Court has noted that Garner “lay[s] out excessive-force
principles at only a general level” and “do[es] not by [itself]
create clearly established law outside an obvious case.” 

(internal quotation marks omitted); see also

(noting that “Garner did not establish a
magical on/off switch that triggers rigid preconditions
whenever an officer’s actions constitute ‘deadly force’”).

        The officers here confronted a scenario quite different
from the one presented in Garner, where the officer pursued
and shot a nondangerous suspect in the back of the head, even
though the officer was “reasonably sure” the suspect was

–4; see also 

(noting that analysis of qualified immunity “depends very
much on the facts of each case”). This becomes especially clear
once we consider the officers’ actions “in light of the specific
context of the case,” as we are required to do. 

. The state troopers and Officer Del Mauro—all of whom
were present at Lincoln Park—continued to pursue a fugitive
who once again disobeyed traffic lights, drove at excessive
speeds, and put pedestrians and motorists at great risk. Under




                              15
Bland’s version of events, at least one innocent civilian
suffered harm by his flight when a state police car struck an
occupied vehicle during the final leg of the pursuit. See 

–80 (noting that the police were “forced to
engage in the same hazardous maneuvers just to keep up” with
the plaintiff). After the crash, Bland threatened to kill the
officers, and the record provides no evidence that he attempted
to surrender at any time. Though the Audi remained pinned
against the scaffolding, the officers had previously seen Bland
successfully free the car and continue to flee after the crash at
Lincoln Park. And although the officers did not see a weapon,
the police reports of an armed carjacking gave them reason to
believe Bland was armed. See 

(noting
that qualified immunity “turns on the objective legal
reasonableness of the action” (internal quotation marks and
citation omitted)). This was the situation the officers
confronted at the terminus of the chase when they discharged
their weapons. Bland identifies no cases with similar facts that,
in 2011, would have “put every reasonable offic[er] on notice”
that using deadly force in such a situation violated clearly
established constitutional rights. 

(internal quotation marks omitted). Therefore, accepting (as we
must) the truth of Bland’s assertions regarding the Audi’s
immobility and the officers’ ability to see Bland’s hands, our
conclusion remains the same: the actions taken by the State
Troopers and Officer Del Mauro are protected by qualified
immunity.

       But what about Newark Officers Torres and Martinez,
who, according to Bland, “arrived on the scene[ and] joined in
the shooting without knowing whether Mr. Bland was firing at
them, and without ever first observing Mr. Bland to be in
possession of any firearm”? Bland Br. 5. The Newark officers




                               16
contend that video footage refutes this allegation, but we need
not resolve that dispute. 7 Here again, Bland has presented no
caselaw demonstrating that the officers, who reasonably
believed that Bland was armed, violated a clearly established
right by joining in the chaotic scene and discharging their
weapons.

        A recent Supreme Court decision demonstrates that
Torres’s and Martinez’s actions did not violate clearly
established rights. In White v. Pauly, the Court granted
qualified immunity to an officer who arrived late to an armed
confrontation between multiple officers and individuals. 137 S.
Ct. at 549, 551. After seeing one of the civilians fire shots, the
defendant officer, without giving a warning, shot and killed
another individual who pointed a weapon at the officers
surrounding the house. 

The plaintiffs argued that the
other officers had not adequately alerted the occupants to the


       7
         Though we need not look to the video for guidance,
we take this opportunity to remind district courts of their
obligation to do so when necessary to identify disputed issues
of material fact. At oral argument, the Newark officers
requested that the District Court consider video footage they
proffered to counter Bland’s version of events. The Court
declined this invitation, stating that it did not think it was
“particularly smart” to “hav[e] judges review individual tapes
and say, hey, I’m satisfied.” App. 27. Notwithstanding the
District Court’s independent assessment of the wisdom of this
approach, the Supreme Court has instructed courts to consider
video evidence in the record and to “view[] the facts in the light
depicted by the videotape,” especially when it “blatantly
contradict[s]” the nonmovant’s narrative. 

–81.




                               17
fact that they were officers, and that White, although late to the
scene, should have been aware that “corrective action was
necessary.” 

In reversing the denial of qualified
immunity, the Court stated that “[c]learly established federal
law does not prohibit a reasonable officer who arrives late to
an ongoing police action in circumstances like this from
assuming that proper procedures . . . have already been
followed,” and that “[n]o settled Fourth Amendment principle
requires that officer to second-guess the earlier steps already
taken by his or her fellow officers.” 

here. In the
absence of any controlling law to the contrary, Newark
Officers Martinez and Torres likewise are entitled to qualified
immunity. 8

                               IV

       Because Defendants did not violate any of Bland’s
clearly established constitutional rights, we will reverse the
order of the District Court so summary judgment may be
entered for Defendants.




       8
          Because Defendants are entitled to qualified
immunity, we need not reach the underlying Fourth
Amendment questions. 

. Nothing in
this opinion should be read to suggest that law enforcement
officers violate the Fourth Amendment where, as here, they
employ lethal force to neutralize a carjacking suspect
reasonably perceived to be armed, dangerous, and unwilling to
peacefully surrender.




                               18