Carr v. Tatangelo

¶5*1262BIRCH, Circuit Judge:

¶6In this appeal, we determine whether police officers are entitled to qualified immunity when an individual was shot in the course of surveillance. The district court accorded the officers qualified immunity. We affirm.

¶7I. BACKGROUND

¶8In the early morning hours of Sunday, October 24, 1999, in Monroe, Georgia, defendants-appellees, Officers Joseph Tatan-gelo, Anthony Fortson, and Damien Mercer, were pursuing an individual who had fled during an investigatory stop that involved plaintiffs-appellants Romeo Carr and Cedrick Wymbs.1 The officers decided to patrol the New Lacy Street area of Monroe, a high-crime area known for drug trafficking, to look for the individual who had fled as well as to watch for drug activity.2 While the officers were observing a pay telephone and the street for evidence of drug activity, visibly intoxicated Harold Henderson appeared, and Officer Mercer asked him what he was doing in the area at that time. Henderson, who said that he was going to get drugs for others at Carr’s house, gave his name as Harold Wade and consented to a pat-down search. In Henderson’s wallet, Officer Mercer found Henderson’s parole identification card, which revealed that Henderson had given the officers an incorrect name and birth date. The officers also called into dispatch to see if Henderson had any outstanding warrants.

¶9*1263To avoid going to jail, Henderson proposed a “deal” to the officers: in exchange for letting him go, Henderson volunteered to go to Carr’s house and have somebody come out with drugs for the officers to arrest.3 Dep. of Damien Mercer at 50-51. The officers agreed and let Henderson walk to Carr’s house, although Officer Mercer kept his wallet. After Henderson had departed from the presence of the officers, they learned that there were three outstanding warrants for his arrest, including theft by taking and parole violation by escape. Dep. of Anthony Fortson at 288; Mercer Dep. at 58. At that point, the objective of the officers’ surveillance changed, and they went to Carr’s house to watch for Henderson to emerge so that they could apprehend and arrest him.4 The officers never saw Henderson again.

¶10The officers positioned themselves behind trees and bushes near Carr’s house to give them a view of the house without being seen. Officer Tatangelo was across the street from Carr’s house in an area where there were bushes and shrubs; Officer Fortson was on the same side of the street as Officer Tatangelo, but farther away from the house; and Officer Mercer was on the side of Carr’s house lying on the ground in some bushes. As the officers watched, a car with three or four women drove up in front of Carr’s house, and the horn sounded. Carr went out to the car and conversed with the women from the passenger’s side.

¶11As Carr walked out to the vehicle and Wymbs walked outside and down the street to use the pay telephone, Henderson entered the house. As he returned from the pay telephone and walked toward Carr’s house, Wymbs noticed movement in the bushes across the street, which he believed to be a person. When he reached the car where Carr was talking to the women, Wymbs asked Carr to come to the rear of the vehicle, told Carr of his concern, asked him to come and look with him, and threw a rock into the bushes where he had detected movement “[t]o see whether it was a real person.” Dep. of Cedrick Wymbs at 95; Dep. of Romeo Carr at 71. After throwing his rock, Wymbs asked: “[W]ho is that over there?” Wymbs Dep. at 100. He then called: “Reggie, Reggie.”5 Carr Dep. at 72; Wymbs Dep. at 100, 157. Noticing no movement after Wymbs had thrown his rock and also thinking that the hidden individual might be Williams, Carr threw a rock hard and had his hand raised to throw another rock when he was shot.6

¶12Wymbs testified that, when he walked back from the pay telephone and threw rocks into the bushes, his sunglasses were on top of his head. Wymbs Dep. at 101-02. After throwing rocks, Wymbs “was folding [his sunglasses] up and putting them in [his] pocket,” and Carr “was about to throw his [rock], [when the police officers] started shooting.” Id. at 102. Carr has suggested that Wymbs’s folding his *1264sunglasses was the “click-clack noise” that the officers heard that caused them to start shooting. Id. at 122; Carr Dep. at 86. Carr testified that the noise of Wymbs’s removing his glasses and placing them in his pocket had caused him to think that Wymbs “had shot [Carr] at first.” Carr Dep. at 86.

¶13The police officers related the incident as they perceived it from their hidden locations. Officer Fortson testified that Officer Mercer communicated over the police radio that Carr and Wymbs knew that the officers were in the bushes. Fortson Dep. at 310. Carr and Wymbs walked across the street and were pointing and looking into the bushes. Officer Fortson testified that one asked: “[I]s that the ‘po-po’?” Id. at 324, 335. The other responded: “[T]hat’s not the ‘po-po.’ ” Id. Immediately thereafter, Officer Fortson “heard someone racking a round,”7id. at 344, 347, which caused him to draw his weapon, although he did not fire because there was no target; he waited until he “actually perceived a threat,” id. at 357. Officer Tatangelo then screamed “ ‘[P]olice,’ ” id. at 336, 361, whereupon Officer Fortson could see Carr and Wymbs pointing a weapon at Officer Tatangelo, id. at 358, 361. Officer Fortson verified: “I’m certain that one of them pointed a weapon at Officer Tatangelo.”8Id. at 362. Officer Tatangelo testified that, when the gun was pointed at him, it “scared the hell out of me.” Dep. of Joseph Tatangelo at 226. Then Officer Tatangelo “heard the rack of the gun [Carr or Wymbs] was holding,” id. at 231, and he saw “what [he] believed to be a small portion of the barrel” of a semiautomatic weapon, id. at 232.9

¶14Officer Fortson testified that he was the first to fire his weapon because Carr and Wymbs “pointed a weapon at Officer Ta-tangelo,” Fortson Dep. at 364, and he “was protecting a third party,” id. at 365. Officer Fortson fired only once because he saw the muzzle of Officer Tatangelo’s gun, knew that he was moving toward Officer Fortson, and he did not want him to be in his line of fire. Officer Tatangelo testified that, following Officer Fortson’s one shot, he fired his gun “eight” times and that he was shooting to kill. Tatangelo Dep. at 237. He believed that Carr had shot at him, and he shot so many times “[t]o eliminate the threat.”10Id. at 243.

¶15Like Officer Tatangelo, Officer Fortson testified that he believed that his life was *1265in danger when he heard the chambering of a bullet, that he “thought [Carr and Wymbs] were going to shoot Officer Ta-tangelo,” Fortson Dep. at 368-69, and believed that, if they would “shoot him,” then they would shoot Officer Fortson also, id. at 369. When Officer Fortson shot his gun, he aimed at center mass consistent with his training. Although Officer Fort-son testified that “I’m the one who hit Romeo Carr,” id. at 371, he also stated that, at the time, “I d[id]n’t know whether I hit him or not,” id. Moreover, Carr and Wymbs “took off running towards the house roughly almost instantaneously after the first shot.” Id. at 374.

¶16After Officers Tatangelo and Fortson had ascertained that they were not wounded, and Officer Mercer had run across the street to join them, all the officers ran back to their cars following the shooting to await backup that they had summoned. Officer Fortson testified that they did not know “how far away backup was” and that they “didn’t want to be in a hostile area,” which did not “make good common sense.” Id. at 394. Consequently, the officers ran back to their cars in a more secure area rather than pursuing Carr and Wymbs.11 Frightened by his first experience of being close to gunfire in the line of duty, Officer Mercer radioed that shots had been fired, and, in addition to regular police backup, he “called for the National Guard,” Mercer Dep. at 90, and a helicopter to search the woods with light, id. at 96. No gun that Carr or Wymbs may have had was located outside or inside Carr’s house, and they denied having a gun.12

¶17When the shooting began, Carr “took off running” and did not realize that he had been shot until he was inside his house.13 Carr Dep. at 76. Moreover, Carr outran Wymbs, who had not been shot, was the first back at his house, and dove in the front door. Id. at 77. He lay on the floor in the front hallway until the paramedics arrived.

¶18After the shooting stopped, approximately twenty people came out into the street, and they were angry about the shooting. Wymbs and Carr’s brother ran outside, stopped a county police car that was driving by, and informed that Carr had been shot. The county police called for backup and an ambulance. Wymbs testified that, from the end of the shooting until the county police were notified, was “less than five minutes.” Wymbs Dep. at 120. The Monroe City Police arrived in *1266“less than two minutes” and secured the scene. Id. at 121. Then, the ambulance arrived and took Carr to the hospital for medical assistance.

¶19Carr and Wymbs filed a 42 U.S.C. § 1983 action in the Middle District of Georgia against Officers Tatangelo, Fort-son, and Mercer and alleged denial of Fourteenth Amendment rights of substantive due process as to Carr and Wymbs with respect to excessive force and medical care as to Carr as well as various state claims. They also sought punitive damages and attorneys’ fees under 42 U.S.C. § 1988. Determining that Carr and Wymbs had failed to show the alleged constitutional violations on the facts of this case, the district judge, following a hearing, granted the officers’ summary judgment motions on the basis of qualified immunity and declined to exercise supplemental jurisdiction over the state-law claims. On appeal, Carr and Wymbs pursue their arguments under the Fourth and Fourteenth Amendments.

¶20II. DISCUSSION

¶21We review a district court’s granting summary judgment based on qualified immunity de novo. Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir.2003). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). In our summary judgment review, “we construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party.” Farrow v. West, 320 F.3d 1235, 1239 n. 2 (11th Cir.2003) (emphasis added).

¶22Under qualified immunity, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”14Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). This defense “provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). “[Qjualified immunity operates ‘to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.’ ” Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 2515, 153 L.Ed.2d 666 (2002) (quoting Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 2158, 150 L.Ed.2d 272 (2001)).

¶23“The threshold inquiry a court must undertake in a qualified immunity analysis is whether plaintiffs allegations, if true, establish a constitutional violation.” Id. at 2513. Even “constitutionally impermissible conduct” might not render government officials liable for civil damages if those actions had not been clearly established as violative of the Constitution when they occurred. Id. at 2515.

For a constitutional right to be clearly established, its contours “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”

¶24*1267Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)) (internal citation omitted). Accordingly, if the issues that Carr and Wymbs have raised on appeal establish a constitutional violation, then we must determine if Officers Tatangelo, Fortson, and Mercer violated the constitutional rights of appellants and, if so, whether they had “fair warning” under clearly established law that their conduct was unconstitutional. Id.

¶25A. Excessive Force

¶26Carr and Wymbs contend that Officers Tatangelo and Fortson’s shooting at them constituted excessive force. Because the participation of each was different, their arguments involve separate constitutional analyses. Fourth Amendment analysis applies to Carr, since he was shot.15 In contrast, Fourteenth Amendment, substantive-due-process analysis applies to Wymbs because he was not impacted physically in the shooting.

¶271. Romeo Carr

¶28“Violation of the Fourth Amendment requires an intentional acquisition of physical control.” Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989) (emphasis added). Fourth Amendment analysis of intentional physical control by police officers in § 1983 cases alleging excessive force, “[a]s in other Fourth Amendment contexts,” is subject to an objective reasonableness inquiry: “the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.”16Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989); see Tennessee v. Garner, 471 U.S. 1, 9, 105 S.Ct. 1694, 1700, 85 L.Ed.2d 1 (1985) (noting that the constitutional justification of a particular seizure is determined by “the totality of circumstances”).

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on *1268the scene, rather than with the 20/20 vision of hindsight.... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments— in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

¶29Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872.17

¶30An intentional seizure of a person “readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.” California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1550, 113 L.Ed.2d 690 (1991). “While it is not always clear just when minimal police interference becomes a seizure, there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Garner, 471 U.S. at 7, 105 S.Ct. at 1699 (internal citation omitted). The Supreme Court has instructed that determination of the constitutionality of a seizure requires “ ‘balanc[ing] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ” Id. at 8, 105 S.Ct. at 1699 (citation omitted). Relevant to this case, the Court has recognized that it is constitutionally permissible for an officer to use deadly force when “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” Id. at 11, 105 S.Ct. at 1701; Willingham v. Loughnan, 261 F.3d 1178, 1186 (11th Cir.2001).

¶31Carr has argued that a seizure did not occur under the Fourth Amendment because he was not stopped but ran back to his house. The seizure occurred when Carr was struck by the bullet from Officer Fortson’s gun; in running away he submitted by retreating, although he was not stopped until he reached his house. Because Officer Fortson’s shot to Carr’s abdomen was not fatal and because of his fright and apparent adrenaline rush in the exigencies of the moment, Carr was able to run across the street to his house to seek refuge. Officer Fortson had shot to kill to save the life of Officer Tatangelo, and it is his intent and the physical contact of the bullet from his gun that governs our Fourth Amendment, seizure analysis. Although Carr was not immediately stopped by the bullet from Officer Fortson’s gun, he nevertheless was seized within the meaning of the Fourth Amendment when the bullet struck or contacted him. See Menuel v. City of Atlanta, 25 F.3d 990, 996 (11th Cir.1994) (“In sum, the officers seized the decedent by shooting her, but *1269... violated none of her Fourth Amendment rights as a result.”).

¶32Having determined that Carr has stated a cognizable Fourth Amendment seizure claim, we must decide if the officers violated clearly established law in shooting him. “An officer is entitled to qualified immunity if a reasonable officer, under the circumstances, might have thought that the use of force did not violate the federal law at the time of the incident.” Willingham, 261 F.3d at 1187. Although he had drawn his weapon, Officer Fortson did not fire his gun until he saw Carr point what he believed to be a gun into the bushes behind which Officer Tatangelo was hiding and heard the sound of the chambering of a bullet. Both he and Officer Tatangelo testified that they heard this distinctive sound.18

¶33Officer Fortson testified that he shot Carr with the intention of killing him, as he had been trained, in order to prevent Carr from shooting Officer Tatangelo. In a split-second, rapidly escalating situation involving perceived deadly force, coupled with his police response training, Officer Fortson acted in an objectively reasonable manner to the apparent imminent threat to his fellow officer to save his life. Officer Tatangelo’s subsequent shooting of bullets that did not strike Carr or Wymbs was reaction to the same perceived threat of a gun and the chambering of bullets to protect himself. A reasonable but mistaken belief that probable cause exists for using deadly force is not actionable under § 1983.19

¶34*1270When Carr was shot in 1999, Garner, permitting an officer to use deadly force to protect himself or others, had been Supreme Court law for fourteen years.20 As we have noted previously when a seizure by shooting occurred in a rapidly escalating situation that resulted in death: “ ‘Reconsideration will nearly always reveal that something different could have been done if the officer knew the future before it occurred. This is what we mean when we say we refuse to second-guess the officer.’ ” Menuel, 25 F.3d at 997 (citation omitted). In determining whether the officers in this case are entitled to qualified immunity, we analyze the precise circumstances immediately preceding Carr’s being shot and not the earlier surveillance decisions or the events following the shooting. Under the Fourth Amendment objective reasonableness standard applied to the officers’ defense of themselves and a fellow officer, Officers Fortson, Tatangelo, and Mercer21 are entitled to qualified immunity on Carr’s Fourth Amendment, seizure argument.22

¶352. Cedrick Wymbs

¶36Because Wymbs was not shot or physically touched by the officers, his excessive force cause of action relating to the shooting is based on substantive due *1271process under the Fourteenth Amendment. We have held “that a non-seizure Fourteenth Amendment substantive due process claim of excessive force survives Graham.” Wilson v. Northcutt, 987 F.2d 719, 722 (11th Cir.1993); see County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 1715, 140 L.Ed.2d 1043 (1998) (“The Fourth Amendment covers only ‘searches and seizures,’ neither of which took place here.”). “[T]he substantive due process guarantee protects against government power arbitrarily and oppressively exercised.” Lewis, 523 U.S. at 846, 118 S.Ct. at 1716 (citing Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 664, 88 L.Ed.2d 662 (1986)). The Supreme Court has explained that “the cognizable level of executive abuse of power [i]s that which shocks the conscience.” Id. at 846, 118 S.Ct. at 1717 (referencing Rochin v. California, 342 U.S. 165, 172-73, 72 S.Ct. 205, 209-10, 96 L.Ed. 183 (1952)).23 “[0]nly the most egregious official conduct” will be the sort of “abusive executive action” that can be sufficiently arbitrary for constitutional recognition as a potentially viable substantive due process claim. Id. at 846, 118 S.Ct. at 1716. The Court viewed “conduct intended to injure in some way unjustifiable by any government interest [a]s the sort of official action most likely to rise to the conscience-shocking level.” Id. at 849, 118 S.Ct. at 1718 (emphasis added). The Court also instructed that “our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances before any abuse of power is condemned as conscience shocking.”24Id. at 850,118 S.Ct. at 1718-19.

¶37We have delineated for our circuit the justifiable government interests to be evaluated when assessing the applicability of qualified immunity to a claim of excessive force for a substantive due process violation by police officers:

Similar to the standard used to evaluate Fourth Amendment excessive force claims, the standard used to evaluate substantive due process excessive force claims looks to a number of factors, including “the need for force and the amount of force used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Again, similar to the standard used to evaluate Fourth Amendment excessive force claims, this standard does not establish a “bright line” that would readily alert officers to a violation. Therefore, “qualified immunity applies unless the application of the standard *1272would inevitably lead every reasonable [official] in [the officer’s] place to conclude the force was unlawful.”

¶38Jones v. City of Dothan, Ala., 121 F.3d 1456, 1461 (11th Cir.1997) (per curiam) (alterations in original) (citations omitted). Consequently, Wymbs had a higher burden to show a violation of substantive due process under the Fourteenth Amendment than did Carr in demonstrating a Fourth Amendment violation. We initially must review the circumstances of the shooting as to Wymbs to determine whether he has stated a constitutional violation by the officers in this case. If not, then the officers are entitled to qualified immunity. Hope, 122 S.Ct. at 2513.

¶39We first examine the need for force and the amount of force used. In those dark, early Sunday morning hours, Officers Tatangelo, Fortson, and Mercer were conducting surveillance in a high-crime neighborhood. They were hidden and watching for Henderson, with outstanding warrants, to emerge from Carr’s house so that they could arrest him, which was characteristic police work. While Officers Tatangelo and Fortson were hidden by bushes across the street from Carr’s house, Carr and Wymbs began to throw rocks into the bushes behind which they were hidden. They then walked in front of the bushes behind which Officer Tatangelo was hidden, and both officers believed that they saw either Carr or Wymbs point a gun at Officer Tatangelo. Whatever doubt as to their perception of a gun was eliminated when both officers heard a click-clack sound, a noise each officer independently identified from his training and experience with weapons as the distinctive sound of the chambering of a bullet in a gun. Although Carr now claims that the click-clack sound was Wymbs folding his sunglasses, significantly, he testified that he thought Wymbs had shot him, which indicates that Carr believed that Wymbs had a gun.25 Thus, three people at the scene of the shooting believed that Carr or Wymbs had a gun, including Officers Ta-tangelo and Fortson, who testified that they saw the gun from behind the bushes. *1273When both Officers Tatangelo and Fortson reasonably believed that deadly force had been drawn on Officer Tatangelo, their surveillance ended, and they were entitled to respond in kind with deadly force to protect themselves. The amount of force with which they responded was directly proportional to that with which they were confronted.

¶40The second factor we consider is the extent of the injury caused by the police conduct. Wymbs incurred no physical injury as a result of the shooting incident. The third factor requires us to determine whether force was used in good faith to maintain or restore order or maliciously and sadistically to cause harm. At the summary judgment hearing, counsel for Carr and Wymbs conceded that he would characterize the officers’ conduct as “malicious” and not sadistic. R2-35. The alleged malicious conduct consisted of the use of Henderson as an informant that caused the officers to be hiding outside Carr’s house.26 The officers’ earlier dealings with Henderson, however, do not bear on whether it was reasonable for them to commence shooting when they believed that Carr or Wymbs had pointed a gun at Officer Tatangelo and chambered a bullet. The shooting was not malice; it was self-defense and defense of a fellow officer. Significantly, neither officer fired his weapon until life-threatening danger was imminent, signaled by the chambering of a bullet.

¶41The protective shooting by Officers Fortson and Tatangelo does not rise to the level of egregious conduct that would shock the conscience of a person even with the most tender sensibilities. After assessing the requisite factors in the totality of the circumstances of this case, we conclude that Wymbs has not stated a violation of substantive due process as to the shooting incident in which he was involved. Hope, 122 S.Ct. at 2513. Therefore, Officers Tatangelo, Fortson, and Mercer27 are *1274entitled to qualified immunity on Wymbs’s substantive due process claim. Jones, 121 F.3d at 1461.

¶42B. Denial of Medical Care

¶43Carr contends that Officers Tatangelo, Fortson, and Mercer denied his Fourteenth Amendment substantive due process rights by failing to provide him medical assistance after he was shot. To determine if the officers are entitled to qualified immunity on this claim, we must decide whether Carr’s allegation has stated a constitutional violation. Hope, 122 S.Ct. at 2513. If Carr has not stated an established constitutional right, then the district judge appropriately accorded the officers qualified immunity.

¶44Carr bases his constitutional right to medical assistance from the officers who injured him on the Supreme Court’s recognition that the Fourteenth Amendment substantive due process clause “require[s] the responsible government or governmental agency to provide medical care to persons ... who have been injured while being apprehended by the police.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983). He augments this constitutional right with our circuit law providing that “[deliberate indifference to serious medical needs may be shown by failure to provide prompt attention to those needs by delaying necessary medical treatment for nonmedical reasons.” Thomas v. Town of Davie, 847 F.2d 771, 772-73 (11th Cir.1988). These cases are inapposite to Carr’s situation.

¶45City of Revere concerns individuals being apprehended by police officers to be taken into custody. The Supreme Court also has recognized “that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 199-200, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989). Thus, the Court has noted a general constitutional right to medical care under the cruel and unusual punishment clause of the Eighth Amendment for convicted prisoners and under the substantive due process clause for pre-trial detainees under the Fourteenth Amendment. Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 n. 6 (11th Cir.1997). The Court additionally has recognized a substantive due process right to medical care for persons whose liberty has been restrained by confinement in a mental institution, incarceration, or arrest and concluded that “[t]he ‘process’ that the Constitution guarantees in connection with any deprivation of liberty thus includes a continuing obligation to satisfy certain minimal custodial standards.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 127-28, 112 S.Ct. 1061, 1070, 117 L.Ed.2d 261 (1992). Carr, however, was not apprehended, being apprehended, or otherwise being taken *1275into custody by Officers Fortson and Ta-tangelo when he was shot. None of these cases relating to provision of medical assistance where one’s liberty has been restrained is applicable to Carr’s situation.

¶46Implicit in our Thomas decision concerning deliberate indifference to serious medical needs is knowledge that the medical need exists. It is clear from the record in this case that the police officers did not know that Carr was injured when he ran back across the street into his house. Carr even outran Wymbs and was able to dive in his front door. Indeed, Carr did not know that he had been shot until after he was inside his house. If Carr had fallen bleeding in front of Officers Tatangelo and Fortson after he was shot, then they would have been aware that he had medical needs that required attention. On the facts of this case, however, the officers did not discover that Carr had been shot until after he had been taken from the scene by ambulance to a hospital for the medical care that he needed.28

¶47We have not located any case that would require police officers potentially to endanger their fives by entering hostile territory involving gunfire to check to see if perpetrators who had run from the scene, visibly unharmed, were in need of medical assistance. We will not create such a requirement in this case,29 which, for qualified immunity, would not be applicable to the officers when the shooting in question occurred. Because Carr has not a stated cognizable constitutional claim on the facts of this case relating to denial of medical assistance, Officers Tatangelo, Fortson, and Mercer are entitled to qualified immunity.

¶48III. CONCLUSION

¶49Carr and Wymbs have appealed the district court’s granting qualified immunity to the police officers involved in the challenged shooting incident based on claims of excessive force under both the Fourth and Fourteenth Amendments and denial of medical assistance under the Fourteenth Amendment. While the officers may not have exhibited paradigmatic police work in the course of the night and early morning hours in question, Carr and Wymbs have failed to state constitutional violations or show -that the officers’ conduct was unreasonable under clearly established law on the objective facts of this case that would render the officers liable for damages. Accordingly, the district judge’s granting summary judgment based on qualified immunity to Officers Tatangelo, Fortson, and Mercer is AFFIRMED.