                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                       ______

                        No. 16-1417
                          ______

      JOAN KEDRA, in her own right and as personal
        representative of the estate of David Kedra,
                                    Appellant

                              v.

                 RICHARD SCHROETER
                       ______

      On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
                (E.D. Pa. No. 2-15-cv-05223)
      District Judge: Honorable Eduardo C. Robreno
                           ______

                 Argued December 5, 2016

   Before: FISHER, KRAUSE, and MELLOY,** Circuit
                       Judges.


      
         Honorable D. Michael Fisher, United States Circuit
Judge for the Third Circuit, assumed senior status on February
1, 2017.
                (Filed: November 28, 2017 )

Michael J. Quirk, Esq. (Argued)
Gerald J. Williams, Esq.
Williams Cuker & Berezofsky
1515 Market Street, Suite 1300
Philadelphia, PA 19102
      Counsel for Appellant

Kevin R. Bradford, Esq.
Stephen R. Kovatis, Esq.
Claudia M. Tesoro, Esq. (Argued)
Office of Attorney General of Pennsylvania
21 South 12th Street
Philadelphia, PA 19107
       Counsel for Appellee
                          ______

                OPINION OF THE COURT
                        ______

KRAUSE, Circuit Judge.

       This case arises from the grievous death of State
Trooper David Kedra, who was shot and killed by his
instructor, then-Corporal Richard Schroeter, during a routine
firearms training. Although a long-term veteran of the police
force and specifically certified in the safe use of firearms,

      **
         Honorable Michael J. Melloy, Senior Circuit Judge,
United States Court of Appeals for the Eighth Circuit, sitting
by designation.




                              2
Schroeter allegedly disregarded each of the steps that he
previously acknowledged in writing were required to safely
perform a live demonstration of a firearm—skipping over both
his own safety check and an independent check by a second
person, treating the gun as if it were unloaded instead of
loaded, pointing it at a person instead of a safe target,
bypassing the required visual and physical inspection before a
“trigger pull,” and then pulling the trigger with the gun aimed
at Kedra’s chest. JA 31.

        Appellant brought a civil rights complaint under
42 U.S.C. § 1983 alleging that Schroeter’s conduct had
subjected her deceased son to a state-created danger in
violation of his Fourteenth Amendment substantive due
process rights. But because the complaint did not allege that
Schroeter had actual knowledge that there was a bullet in the
gun when he fired it at Kedra, the District Court held that
Schroeter was entitled to qualified immunity and dismissed the
complaint with prejudice. Its reasoning was that the complaint
pleaded only an objective theory of deliberate indifference, i.e.,
what a reasonable official should have known because the risk
was so obvious, which was not then-clearly established, and
was insufficient to plead the clearly established subjective
theory of deliberate indifference, i.e., that Schroeter was
actually aware that his conduct carried a substantial risk of
serious harm. We agree with the District Court that the
objective theory of deliberate indifference was not clearly
established at the time of the shooting. However, because
obviousness of risk is relevant to proving actual knowledge and
the allegations of the complaint here are more than sufficient
to support a reasonable inference that Schroeter had such
knowledge, we conclude the complaint adequately pleads a
state-created danger claim under a then-clearly established




                                3
theory of liability. We therefore will reverse the District
Court’s grant of qualified immunity and remand for further
proceedings.

I.     Background

        As this is an appeal from a grant of a motion to dismiss,
the factual allegations are taken from the complaint and are
accepted as true.1 See Bridge v. Phoenix Bond & Indem. Co.,
553 U.S. 639, 642 n.1 (2008). David Kedra was a twenty-six-
year-old Pennsylvania State Trooper stationed in Montgomery
County, Pennsylvania. In September 2014, Kedra was ordered
to attend a routine firearm safety training, which included a
demonstration of the features and operation of the new model
of a State Police-issued handgun. The training was led by then-
Corporal Schroeter, a trained firearms instructor who had been
a police officer for about twenty years.

        Before the training, Schroeter acknowledged in writing
a list of firearms safety rules for instructors, including that he
must always perform a safety check of a gun before using it for
training; that he must implement a second check on whether it
is loaded by, e.g., having a second person check the gun; that
he must treat all guns as if they are loaded; that he must never
point the muzzle of a gun at another person; that he must keep
his finger off the trigger, unless he opens the gun to verify it is
unloaded before pointing it at a safe target and pulling the

       1
          Appellant filed a First Amended Complaint that
differed from her original complaint only in listing her title as
“personal representative of the Estate.” JA 29. As the
substance of the complaints is the same, we will simply refer
to the relevant document as the “complaint.”




                                4
trigger; and that he must open the gun to visually and
physically determine that it is unloaded before ever pulling the
trigger. At the training itself, however, Schroeter violated each
of these rules when, in the course of explaining the “trigger
reset” function on an operational handgun, he bypassed all of
the safety checks, failed to physically or visually inspect the
gun to ensure it was unloaded, raised the gun to chest level,
pointed it directly at Kedra, and pulled the trigger. JA 32. The
gun, in fact, was loaded, and it fired a bullet into Kedra’s
abdomen at close range, causing Kedra’s death several hours
later.

       Criminal charges were filed by state authorities,
eventually resulting in Schroeter’s guilty plea in Pennsylvania
state court to five counts of reckless endangerment of another
person and his retirement from the State Police. In addition,
Kedra’s mother, as the representative of her son’s estate, filed
a one-count civil complaint against Schroeter in the U.S.
District Court for the Eastern District of Pennsylvania,
claiming a violation of Kedra’s substantive due process rights
to life and liberty under the Fourteenth Amendment, and
making the above-referenced factual allegations, including as
to Schroeter’s training and experience, his written
acknowledgement of the risks and attendant safety protocols,
and his guilty plea.

          Schroeter moved to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(6), claiming he was entitled to
qualified immunity because “[t]he gravamen of [p]laintiff’s
[c]omplaint is that . . . Schroeter should have known that his
firearm posed a substantial risk to those attending his class, not
that . . . Schroeter actually did know that there was such a risk.”
Memorandum of Law in Support of Defendant’s Motion to




                                5
Dismiss Complaint at 9–10, Kedra v. Schroeter, No. 15-5223
(E.D. Pa. Jan. 6, 2016), ECF No. 5-1. That theory of liability,
Schroeter argued, was not then-clearly established and, hence,
he was entitled to qualified immunity. Schroeter relied in
particular on Sanford v. Stiles, 456 F.3d 298, 310 n.13 (3d Cir.
2006) (per curiam), in which we identified as an open question
whether “deliberate indifference”—the mental state required
for a state-created danger claim like this one—could be
demonstrated using an objective test (i.e., merely by pointing
to a substantial risk of serious harm that is so obvious that it
should have been known), or whether, instead, a plaintiff must
show the defendant had actual, subjective knowledge of the
risk.

       The District Court accepted both Schroeter’s premise
and conclusion, ruling, first, that Appellant’s complaint did not
plead deliberate indifference based on actual knowledge
because Appellant conceded she “could not and would not
plead that [Schroeter] knew there was a bullet in the gun,”
Kedra v. Schroeter, 161 F. Supp. 3d 359, 363 (E.D. Pa. 2016),
and, second, that in view of Sanford, it was not clearly
established that deliberate indifference could exist based only
on the risk being “so obvious that it should be known,” id. at
364–65 (quoting Sanford, 456 F.3d at 309). The District Court
acknowledged Appellant’s argument that, by alleging
Schroeter had pleaded guilty to reckless endangerment,
Appellant had necessarily pleaded actual knowledge because
the mens rea for this offense under Pennsylvania law is
“conscious disregard of a known risk of death or great bodily
injury to another person.” Kedra, 161 F. Supp. 3d at 364 n.5
(quoting Commonwealth v. Klein, 795 A.2d 424, 428 (Pa.
Super. Ct. 2002)). However, the District Court deemed
Schroeter’s guilty plea irrelevant on the ground that it would




                               6
not satisfy the criteria for non-mutual offensive collateral
estoppel.2 Id. Accordingly, the District Court viewed this case
as “present[ing] the scenario anticipated but left unresolved by
Sanford: a state actor proceeding despite a patently obvious
risk that the actor should have recognized, but without actual
knowledge that the risk existed,” and, thus, a theory of
deliberate indifference that was not clearly established as
required to defeat qualified immunity. Id. at 364–66. On that
basis, the District Court dismissed the complaint with




       2
          Collateral estoppel is a judicial doctrine that precludes
relitigation of an issue already decided in a previous
proceeding if “(1) the issue decided in the prior adjudication
was identical with the one presented in the later action, (2)
there was a final judgment on the merits, (3) the party against
whom the plea is asserted was a party or in privity with a party
to the prior adjudication, and (4) the party against whom it is
asserted has had a full and fair opportunity to litigate the issue
in question in a prior action.” Dici v. Pennsylvania, 91 F.3d
542, 547–48 (3d Cir. 1996). The District Court believed this
last criterion was not satisfied because Schroeter did not
“ha[ve] a ‘full and fair opportunity to litigate’ the question of
his constitutional culpability on the basis of a guilty plea in a
state criminal court.” Kedra, 161 F. Supp. 3d at 364 n.5.
Although Appellant did not rely on the guilty plea for its
preclusive effect, but only as a basis from which to infer
Schroeter’s actual knowledge of the risk of harm, the District
Court assumed that the requirements for collateral estoppel had
to be satisfied for the plea to be considered in any way relevant.
Id.




                                7
prejudice,3 Kedra, 161 F. Supp. 3d at 365–66, and this timely
appeal followed.

II.    Jurisdiction and Standard of Review

       The District Court had federal question jurisdiction
under 28 U.S.C. § 1331, and we have jurisdiction under 28
U.S.C. § 1291. We exercise plenary review over both a
District Court’s dismissal under Federal Rule of Civil
Procedure 12(b)(6) and its grant of qualified immunity.
Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013);
McLaughlin v. Watson, 271 F.3d 566, 570 (3d Cir. 2001). In
reviewing an order of dismissal under Federal Rule of Civil
Procedure 12(b)(6), we, like the District Court, must “accept
as true all factual allegations in the complaint and draw all
inferences from the facts alleged in the light most favorable to
[the plaintiff].” Phillips v. Cty. of Allegheny, 515 F.3d 224,
228, 230 (3d Cir. 2008).

III.   Discussion

        The doctrine of qualified immunity shields government
officials from civil liability for constitutional violations only if
“their actions could reasonably have been thought consistent
with the rights they are alleged to have violated.” Anderson v.

       3
         Appellant argues before us that the dismissal should
have been without prejudice so that she could have an
opportunity to supplement her pleading of deliberate
indifference in an amended complaint. Because we conclude
Appellant already pleaded sufficient facts to sustain her claim,
see infra Section III.B.1, we need not address whether the
District Court erred in denying leave to amend.




                                 8
Creighton, 483 U.S. 635, 638 (1987). In considering whether
qualified immunity attaches, courts perform a two-pronged
analysis to determine: (1) “whether the facts that [the] plaintiff
has alleged . . . make out a violation of a constitutional right,”
and (2) “whether the right at issue was ‘clearly established’ at
the time of [the] defendant’s alleged misconduct.” Pearson v.
Callahan, 555 U.S. 223, 232 (2009). Here, the District Court
disposed of the complaint at the second prong by concluding
that because Appellant had not alleged Schroeter’s actual
knowledge of a bullet in the chamber, her theory of deliberate
indifference was based solely on the objective test we had
identified in Sanford as unresolved, so that “the violative
nature of Defendant’s alleged conduct ha[d] not been clearly
established.” Kedra, 161 F. Supp. 3d at 364–66.

       As a preliminary matter that will inform the scope of our
review, we note that by taking this approach, the District Court
addressed the “clearly established” inquiry only in part. For
the question posed by the District Court—whether it was then-
clearly established that obviousness of risk untethered from
actual knowledge could prove deliberate indifference—goes to
whether the plaintiff sufficiently pleaded the elements of a
state-created danger claim, as then defined. See Phillips, 515
F.3d at 235, 240–42. In contrast, the clearly established
inquiry at the second prong, as we have described it, goes not
to whether a plaintiff sufficiently pleaded a constitutional
violation (the question answered at the first prong), but to
whether the right allegedly violated—defined in terms of the
“particularized” factual context of that case, Anderson, 483
U.S. at 639–40—was a “clearly established statutory or
constitutional right[] of which a reasonable [officer] would
have known,” Beers-Capitol v. Whetzel, 256 F.3d 120, 142




                                9
n.15 (3d Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).4

        Granted, the contours of a given right are necessarily
co-extensive with the scope of conduct that violates that right,
so that where it would not be clear to “a reasonable official . .
. that what he is doing violates [a] right,” Anderson, 483 U.S.

       4
          In ruling that an objective test was not a clearly
established means to plead deliberate indifference, the District
Court’s approach arguably combined elements of both the first
and second prongs of the qualified immunity analysis. Yet,
those inquiries diverge in a significant respect with regard to
mens rea, for even where an element of a claimed violation
includes a subjective test, “the test for qualified immunity is
objective . . . . That is, [an official] is entitled to qualified
immunity only if she can show that a reasonable person in her
position at the relevant time could have believed, in light of
clearly established law, that her conduct comported with
established legal standards.” Beers-Capitol, 256 F.3d at 142
n.15. And for that reason, we have instructed courts to treat
the two prongs of qualified immunity as analytically distinct so
as to avoid confusing their different mens rea requirements.
Phillips, 515 F.3d at 242. At the same time, as the Supreme
Court has recognized, “whether a particular complaint
sufficiently alleges a clearly established violation of law
cannot be decided in isolation from the facts pleaded,” and
“[i]n that sense the sufficiency of [Appellant’s] pleadings is
both inextricably intertwined with, and directly implicated by,
the qualified immunity defense.” Ashcroft v. Iqbal, 556 U.S.
662, 673 (2009) (citations and internal quotation marks
citations omitted); accord L.R. v. Sch. Dist. of Phila., 836 F.3d
235, 241 (3d Cir. 2016).




                               10
at 640, the second prong of qualified immunity would not be
satisfied regardless of whether the lack of clarity arose from an
uncertain theory of liability or from the application of a clearly
established theory of liability to a set of facts so novel as to
deprive an actor of fair notice of the violative nature of his
actions. But where a defendant contends that neither the theory
of liability nor the right at issue is clearly established, the
reviewing court may need to analyze both to determine
conclusively whether the defendant is entitled to qualified
immunity. See, e.g., Beers-Capitol, 256 F.3d at 142 n.15
(observing, on the one hand, that the constitutional right as
defined by the factual context of that case was clearly
established and, on the other hand, that the “doctrine of
deliberate indifference was also clearly established at the
relevant time”).

       Here, the District Court addressed the “clearly
established” inquiry only in the first sense, determining that the
theory of liability was not clearly established. Because we
conclude this was error, we also address the inquiry in the
second sense, assessing whether, under the facts of this case,
the specific right at issue was clearly established.5 Thus, first
we will undertake a review of relevant substantive due process
principles. See infra Section III.A. Second, we will examine

       5
         We undertake this inquiry in the first instance to decide
whether we may affirm on this alternative ground, see MRL
Dev. I, LLC v. Whitecap Inv. Corp., 823 F.3d 195, 202 (3d Cir.
2016), and because it turns on a purely legal question, our
resolution of which will best serve the interests of judicial
efficiency on remand, see Wallach v. Eaton Corp., 837 F.3d
356, 374–75 (3d Cir. 2016); Loretangeli v. Critelli, 853 F.2d
186, 189 n.5 (3d Cir. 1988).




                               11
whether the complaint sufficiently pleads a violation of
Kedra’s substantive due process rights under a theory of
deliberate indifference that was clearly established. See infra
Section III.B. And third, we will consider whether the
particular right at issue was clearly established at the relevant
time, see infra Section III.C, i.e., “whether the law, as it existed
[at the time of the shooting], gave [Schroeter] ‘fair warning’
that [his] actions were unconstitutional” in the particular
factual scenario he confronted. Estate of Smith v. Marasco,
430 F.3d 140, 154 (3d Cir. 2005).

       A.      Applicable Legal Principles

        In asserting her claim under 42 U.S.C. § 1983 for a
deprivation of Kedra’s rights to life and liberty, Appellant
invokes the Due Process Clause, which at its core protects
individuals against arbitrary government action. See Cty. of
Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998). While
“the Due Process Clause does not impose an affirmative
obligation on the state to protect its citizens,” there is an
exception to this general rule that nevertheless holds an officer
liable if his conduct exposes an individual to a “state-created
danger.”6 Phillips, 515 F.3d at 235. Such a claim requires

       6
         We are unconvinced by Schroeter’s argument that no
state-created danger claim is cognizable where, as here, the
alleged violation is based on a state actor’s endangerment of a
fellow government employee. While the Due Process Clause
does not guarantee state employees “certain minimal levels of
safety and security” in the workplace, Collins v. City of Harker
Heights, 503 U.S. 115, 126 (1992), we have long held that a
government employee may bring a substantive due process
claim against his employer if the state compelled the employee




                                12
proof of four elements: (1) the harm caused was foreseeable
and fairly direct; (2) the state official “acted with a degree of
culpability that shocks the conscience”; (3) the state and the
plaintiff had a relationship such that “the plaintiff was a
foreseeable victim of the defendant’s acts”; and (4) the official
affirmatively used his authority “in a way that created a danger
to the citizen or that rendered the citizen more vulnerable to
danger” than had he never acted. Bright v. Westmoreland Cty.,
443 F.3d 276, 281 (3d Cir. 2006).

       Here, the District Court focused, as do the parties on
appeal, on the second element of a state-created danger claim.7

to be exposed to a risk of harm not inherent in the workplace,
see Kaucher v. Cty. of Bucks, 455 F.3d 418, 430–31 (3d Cir.
2006); Eddy v. V.I. Water & Power Auth., 256 F.3d 204, 212–
13 (3d Cir. 2001). We have no trouble concluding this standard
is met in the context of a mandatory firearms training in which
the trainees were required to be physically present without
protection and the firearms instructor, instead of following
safety protocols and demonstrating the proper use of a firearm,
disregarded all protocols and fired directly at a trainee at close
range.
       7
         Schroeter also appears to contest the fourth element by
casting his conduct as an omission to check the gun for a bullet
and contending that he may be held liable only for an
affirmative act. Yet the complaint alleges Schroeter skipped
over required safety checks, picked up a firearm, raised it,
pointed it at Kedra, and pulled the trigger. These indisputably
affirmative acts “created an opportunity for harm that would
not have otherwise existed.” Rivas v. City of Passaic, 365 F.3d
181, 197 (3d Cir. 2004). Those acts, which directly caused
Kedra’s death, also set this case apart from those that we have




                               13
See Kedra, 161 F. Supp. 3d at 363. That is, because “[l]iability
for negligently inflicted harm is categorically beneath the
threshold of constitutional due process,” Lewis, 523 U.S. at
849, government action rises to the level of an actionable
constitutional violation only when it is “so egregious, so
outrageous, that it may fairly be said to shock the contemporary
conscience,” id. at 847 n.8. The exact level of culpability
required to shock the conscience, however, depends on the
circumstances of each case, and the threshold for liability
varies with the state actor’s opportunity to deliberate before
taking action. Phillips, 515 F.3d at 240–41; see also Lewis,
523 U.S. at 848–54.

        We have identified three potential levels of culpability.
In “hyperpressurized environment[s] requiring a snap
judgment,” an official must actually intend to cause harm in
order to be liable. Vargas v. City of Philadelphia, 783 F.3d
962, 973 (3d Cir. 2015) (internal quotation marks omitted). In
situations in which the state actor is required to act “in a matter
of hours or minutes,” we require that the state actor “disregard
a great risk of serious harm.” Sanford, 456 F.3d at 310. And
where the actor has time to make an “unhurried judgment[],” a
plaintiff need only allege facts supporting an inference that the
official acted with a mental state of “deliberate indifference.”
Id. at 309.



deemed to involve mere omissions. See, e.g., Bright, 443 F.3d
at 284–85 (state actor not liable for failing to prevent harm
inflicted by a third party); D.R. ex rel. L.R. v. Middle Bucks
Area Vocational Tech. Sch., 972 F.2d 1364, 1374–76 (3d Cir.
1992) (en banc) (same).




                                14
       As the District Court correctly recognized, see Kedra,
161 F. Supp. 3d at 363, because Appellant here alleged that
Schroeter had the opportunity to exercise “unhurried
judgment[],” she was required to plead facts in her complaint
supporting the inference that Schroeter acted with “deliberate
indifference,” which we have described variously as a
“conscious disregard of a substantial risk of serious harm,”
Vargas, 783 F.3d at 973–74 (brackets and internal quotation
marks omitted), or “willful disregard” demonstrated by actions
that “evince a willingness to ignore a foreseeable danger or
risk,” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 910 (3d
Cir. 1997). While categorically different from “intent to cause
harm,” which is the threshold mental state reserved for officials
in “hyperpressurized” situations where “snap judgment[s]”
may be required, Vargas, 783 F.3d at 973, deliberate
indifference “has an elusive quality to it,” Sanford, 456 F.3d at
301, “fall[ing] somewhere between intent, which ‘includes
proceeding with knowledge that the harm is substantially
certain to occur’ and negligence, which involves ‘the mere
unreasonable risk of harm to another,’” Morse, 132 F.3d at 910
n.10.

       Here the District Court examined one of the elusive
aspects of deliberate indifference with which we and other
Courts of Appeals have wrestled over time: whether deliberate
indifference in the substantive due process context—as
opposed to the Eighth Amendment context—may be satisfied
using an objective test or only a subjective “actual knowledge”
test. See Kedra, 161 F. Supp. 3d at 364–65 (citing Sanford,
456 F.3d at 309 & n.13). In the Eighth Amendment context,
the Supreme Court has rejected an objective standard for
“deliberate indifference,” i.e., a standard where liability may
be premised on an official’s objective “failure to alleviate a




                               15
significant risk that he should have perceived but did not,”
Farmer v. Brennan, 511 U.S. 825, 838 (1994), and the Court
has instead explicitly required a showing of “subjective
culpability,” id. at 843 n.8, i.e., a showing that “the official
kn[ew] of and disregard[ed] an excessive risk,” id. at 837. But
uncertainty about whether this “subjective culpability”
requirement carried over to pretrial detainees and other
plaintiffs asserting substantive due process claims produced a
split among the Courts of Appeals.8 That split led us in Sanford
to note, in the substantive due process context, “the possibility
that deliberate indifference might exist without actual
knowledge of a risk of harm when the risk is so obvious that it
should be known,” 456 F.3d at 309, and to acknowledge
shortly thereafter that we “ha[d] not yet definitively answered
the question of whether the appropriate standard in a non-
Eighth Amendment substantive due process case is subjective


       8
         Compare, e.g., Board v. Farnham, 394 F.3d 469, 478
(7th Cir. 2005) (noting that the test for deliberate indifference
under the Fourteenth Amendment is “closer to tort
recklessness” than to the Eighth Amendment’s “criminally
reckless” standard), Spencer v. Knapheide Truck Equip. Co.,
183 F.3d 902, 905–06 (8th Cir. 1999) (suggesting that the
purely subjective standard from Farmer may be inappropriate
for due process claims brought by pretrial detainees), and
Christiansen v. City of Tulsa, 332 F.3d 1270, 1281 (10th Cir.
2003) (framing the standard in the state-created danger context
as whether the risk was “obvious or known”), with, e.g.,
Ewolski v. City of Brunswick, 287 F.3d 492, 513 (6th Cir. 2002)
(adopting Farmer’s subjective standard for due process
claims), and Hare v. City of Corinth, 74 F.3d 633, 648 (5th Cir.
1996) (en banc) (same).




                               16
or objective,” Kaucher v. Cty. of Bucks, 455 F.3d 418, 430–31
(3d Cir. 2006).

        More recently, both the Supreme Court and this Court
have spoken to the issue. In Kingsley v. Hendrickson, 135 S.
Ct. 2466 (2015), distinguishing between the different language
of the Eighth Amendment and the Due Process Clause and the
different nature of those claims, the Supreme Court held that a
pretrial detainee claiming a substantive due process violation
based on excessive force “must show . . . only that the officers’
use of that force was objectively unreasonable” and not “that
the officers were subjectively aware that their use of force was
unreasonable.”       Id. at 2470, 2475.         While the Court
acknowledged that “the defendant must possess a purposeful,
a knowing, or possibly a reckless state of mind” because
“liability for negligently inflicted harm is categorically beneath
the threshold of constitutional due process,” it clarified that this
subjective requirement pertained only to “the defendant’s state
of mind with respect to his physical acts”—in other words, his
actions themselves needed to be deliberate and not
“accidental[]” or “negligent[]”—but did not pertain to whether
the actions the defendant deliberately took were
“unreasonable” or “excessive in relation to [a legitimate]
purpose.” Id. at 2472–73 (emphasis omitted). Rejecting the
arguments that an objective test would devolve into a
negligence standard, id. at 2474, was not “workable,” id., or
would lead to a “flood of claims,” id. at 2476, the Court held
that “the defendant’s state of mind with respect to the proper
interpretation” of his physical acts should be assessed by an




                                17
“objective standard,” depending on “the perspective of a
reasonable officer on the scene.”9 Id. at 2472–73.

       Consistent with this approach, we too recently
embraced an objective standard in the context of a substantive
due process claim—in particular, for a claim of state-created
danger. In L.R. v. School District of Philadelphia, we denied
qualified immunity to a teacher who released a kindergartener

       9
         Recognizing the significance of Kingsley, the Ninth
Circuit, sitting en banc, has extended it to failure-to-protect
claims, framing the test as whether a “reasonable officer in the
circumstances would have appreciated the high degree of risk
involved—making the consequences of the defendant’s
conduct obvious,” Castro v. Cty. of Los Angeles, 833 F.3d
1060, 1071 (9th Cir. 2016) (en banc), and the Second Circuit
has extended it to conditions-of-confinement claims, holding
that “deliberate indifference should be defined objectively for
a claim of a due process violation” and that the relevant inquiry
post-Kingsley is what the “defendant-official knew, or should
have known,” Darnell v. Pineiro, 849 F.3d 17, 35–36 (2d Cir.
2017). Cf. Alderson v. Concordia Parish Corr. Facility, 848
F.3d 415, 419 n.4 (5th Cir. 2017) (declining to extend Kingsley
to failure-to-protect claims absent en banc reconsideration of
controlling Circuit precedent). Like the Supreme Court, both
Circuits explicitly rejected arguments that an objective test
would devolve into a negligence standard. See Darnell, 849
F.3d at 36 (“[A]ny § 1983 claim for a violation of due process
requires proof of a mens rea greater than mere negligence.”);
Castro, 833 F.3d at 1071 n.4 (observing that an objective test
“prevent[s] ‘overinclusiveness’ by ensuring that liability will
attach only in cases where the defendant’s conduct is more
egregious than mere negligence”).




                               18
to a stranger who then abused the child. 836 F.3d 235 (3d Cir.
2016). After reiterating our observation in Sanford that
“deliberate indifference might exist without actual knowledge
of a risk of harm when the risk is so obvious that it should be
known,” id. at 246, we held this standard was met by the
allegations in that complaint. Specifically, we held the risk of
harm from the teacher’s conduct was “‘so obvious’ as to rise
to the level of deliberate indifference,” id., and that L.R. had
sufficiently pleaded as “a matter of common sense” that the
teacher “knew, or should have known, about the risk of his
actions,” id. at 245 (emphasis added). Although we indicated
that the plaintiff’s allegations also satisfied the subjective
standard, id. at 246 (“What is more, . . . the fact that [the
teacher] asked [the stranger] for her identification illustrates
that [the teacher] himself was indeed aware of the risk of
harm[.]”), we concluded that “[e]xposing a young child to an
obvious danger is the quintessential example of when qualified
immunity should not shield a public official from suit,” id. at
250.10

       10
          In his concurrence, Judge Fisher seeks to revisit L.R.,
positing, despite its terms, that it left Sanford’s question
unanswered; that its reliance on the objective test was dictum
because it also observed the teacher’s conduct would meet the
subjective test, but see Woods v. Interstate Realty Co., 337 U.S.
535, 537 (1949) (discussing the significance of alternative
holdings); Meister v. Comm’r, 504 F.2d 505, 509 (3d Cir.
1974) (noting that where we give “an alternative basis for our
holding” prefaced with language such as “additionally,” this
does not mean the earlier holding is to be “disregarded” or is
any less “critical”); and that an objective test cannot distinguish
between conscience-shocking behavior and mere negligence
and thus risks rendering the Fourteenth Amendment a “font of




                                19
      Seeking to benefit from the trajectory of this case law,11
Appellant would have us rely on L.R. to conclude an objective

tort law,” Concurrence at 6; but see Kingsley, 135 S. Ct. at
2474; Palakovic, 854 F.3d at 231; Darnell, 849 F.3d at 35–36;
Castro, 833 F.3d at 1071. While our concurring colleague may
disagree with the evolution of our substantive due process
jurisprudence, we generally may not, short of en banc
reconsideration, alter our Circuit precedent, see Bimbo
Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 116 (3d Cir.
2010), and we have no occasion to do so today. Instead, our
concern is whether Appellant sufficiently pleaded deliberate
indifference under a culpability standard that was then-clearly
established. For the reasons we explain below, see infra
Section III.B.1, Appellant’s allegations as to Schroeter’s
training and experience, to say nothing of his written
acknowledgements and admissions in the context of his guilty
plea, are more than sufficient to show deliberate indifference
under the then-clearly established subjective standard and
conduct that was not merely negligent but “shocks the
conscience,” Bright, 443 F.3d at 281.
       11
          We also recently resolved what we had identified as
an open question after Farmer, see Woloszyn v. Cty. of
Lawrence, 396 F.3d 314, 321 (3d Cir. 2005), as to whether the
“deliberate indifference” standard in the prison suicide context
is a subjective or objective one. Palakovic v. Wetzel, 854 F.3d
209 (3d Cir. 2017). There too we held the standard was
objective and identified the relevant inquiry for both
substantive due process claims and Eighth Amendment claims
as whether “the prison official knew or should have known of
the individual’s particular vulnerability,” id. at 224 (emphasis
added), explaining that “[i]t is not necessary for the custodian
to have a subjective appreciation of the detainee’s particular




                              20
standard of deliberate indifference was clearly established at
the time Schroeter shot Kedra and to reverse the District Court
on that basis. We reject that invitation, however, because we
assess qualified immunity based on the law that was “clearly
established at the time an action occurred,” Harlow, 457 U.S.
at 818, while L.R. was not decided until nearly two years after
the action at issue in this case. That is, regardless of what may
be deemed “clearly established” in the wake of Kingsley and
L.R., we must look to the state of the law at the time of
shooting. And at that point, as the District Court correctly
recognized, it was not yet clearly established whether
deliberate indifference in the substantive due process context
was governed by an objective or subjective standard. See
Kedra, 161 F. Supp. 3d at 364–65 (citing Sanford, 456 F.3d at
309 & n.13). The question to which we therefore turn is
whether Appellant pleaded deliberate indifference under the
subjective test, which was then-clearly established, or under an
objective test, which then was not.

       B.     Whether Appellant Pleaded Her Claim Under A
              Clearly Established Theory of Deliberate
              Indifference

       Given the historical ambiguity in our case law, we agree
with the District Court that Schroeter’s arguments might have
traction if Appellant had pleaded deliberate indifference based
merely on what Schroeter should have known in view of the
obviousness of a particular risk. But there’s the rub: That is

vulnerability. Rather, . . . ‘reckless or deliberate indifference
to that risk’ only demands ‘something more culpable on the
part of the officials than a negligent failure to recognize the
high risk of suicide,’” id. at 231 (citation omitted).




                               21
not what Appellant pleaded. Contrary to the way that
Schroeter and the District Court characterize it, the complaint
here clearly and unmistakably alleges facts that support an
inference of actual, subjective knowledge of a substantial risk
of lethal harm, and neither the Supreme Court nor we have
wavered from the well-established principle that a plaintiff may
plead and prove deliberate indifference in the substantive due
process context using this subjective test.

       In the discussion to follow, we first address whether the
complaint pleads deliberate indifference under the clearly
established subjective test and then turn to the District Court’s
misunderstanding of that test in requiring Appellant to plead
knowledge of the certainty of harm instead of knowledge of the
substantial risk of harm.

              1.      Application of the Deliberate Indifference
                      Standard

        At the pleading stage, courts must “accept all factual
allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be
entitled to relief.” Phillips, 515 F.3d at 233. Although
“[f]actual allegations must be enough to raise a right to relief
above the speculative level,” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007), we demand “only enough facts to state a
claim to relief that is plausible on its face” and “do not require
heightened fact pleading of specifics,” id. at 570. Determining
whether the facts pleaded have “nudged” the claim “across the
line from conceivable to plausible” is “a context-specific task
that requires the reviewing court to draw on its judicial




                               22
experience and common sense.” Ashcroft v. Iqbal, 556 U.S.
662, 679–80 (2009).

        To make this assessment on a Rule 12(b)(6) motion,
“courts must consider the complaint in its entirety,” Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007),
and “determine whether the complaint as a whole contains
sufficient factual matter to state a facially plausible claim,”
Argueta v. U.S. Immig. & Customs Enf’t, 643 F.3d 60, 74 (3d
Cir. 2011). “The inquiry, as several Courts of Appeals have
recognized, is whether all of the facts alleged, taken
collectively, give rise to a strong inference of scienter, not
whether any individual allegation, scrutinized in isolation,
meets that standard.” Tellabs, 551 U.S. at 322–23.

        Here, then, the relevant question is whether the
complaint, considering all the allegations, pleads sufficient
facts to support the inference that when Schroeter pointed his
gun at Kedra at close range and deliberately pulled the trigger
without even once checking whether the gun was loaded, he
acted with subjective deliberate indifference, i.e., actual
awareness of a substantial risk of serious harm, lying
“somewhere between intent . . . and negligence.” Morse, 132
F.3d at 910 n.10. A plaintiff can plead deliberate indifference
by reference to circumstantial and direct evidence. See
Farmer, 511 U.S. at 842. Three broad categories of
circumstantial evidence are alleged in the complaint, and we
have deemed each probative of deliberate indifference in the
past: (1) evidence that the risk was obvious or a matter of
common sense, (2) evidence that the actor had particular
professional training or expertise, and (3) evidence that the
actor was expressly advised of the risk of harm and the




                              23
procedures designed to prevent that harm and proceeded to
violate those procedures.

        First, the complaint points to the obvious risk of harm
in pointing the muzzle of a gun at another person and pulling
the trigger, while skipping any kind of safety check. Perhaps
because it concluded that Appellant pleaded deliberate
indifference by relying on only the objective obviousness of
risk, the District Court did not acknowledge or discuss the
relevance of obviousness of risk to proving actual knowledge
of risk. See Kedra, 161 F. Supp. 3d at 362–66. But the
Supreme Court has long recognized that, even under a
subjective test, “the fact that the risk of harm is obvious” is
relevant, among other pieces of evidence, to “infer the
existence of this subjective state of mind.” Hope v. Pelzer, 536
U.S. 730, 738 (2002). We, too, have observed that “subjective
knowledge on the part of the official can be proved by
circumstantial evidence to the effect that the excessive risk was
so obvious that the official must have known of the risk.”12
Beers-Capitol, 256 F.3d at 133.



       12
         Our Sister Circuits, with near unanimity, also have
recognized the relevance of obviousness of risk to proving
actual knowledge. See, e.g., Miranda-Rivera v. Toledo-
Davila, 813 F.3d 64, 75 (1st Cir. 2016); Gant ex rel. Gant v.
Wallingford Bd. of Educ., 195 F.3d 134, 141 n.6 (2d Cir. 1999);
McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 469 (6th Cir.
2006); Farnham, 394 F.3d at 478; Ryan v. Armstrong, 850 F.3d
419, 425 (8th Cir. 2017); Kennedy v. City of Ridgefield, 439
F.3d 1055, 1064 (9th Cir. 2006); Valderrama v. Rousseau, 780
F.3d 1108, 1116 (11th Cir. 2015).




                               24
       For that reason, we have regularly relied on the
obviousness of risk as a permissible and highly relevant basis
from which to infer actual knowledge—even directing in our
Model Civil Jury Instructions that, in assessing deliberate
indifference for state-created danger claims, a jury is “entitled
to infer from the obviousness of the risk that [the state actor]
knew of the risk.” Third Circuit Model Civil Jury Instructions
§ 4.14 (Mar. 2017). In Kneipp v. Tedder, for example, police
officers sent a woman home “unescorted in a visibly
intoxicated state in cold weather,” and we reversed a grant of
summary judgment in their favor, citing the foreseeable and
obvious risk that the woman would later fall down an
embankment and suffer hypothermia. 95 F.3d 1199, 1201–03,
1208–09, 1211 (3d Cir. 1996). In Phillips v. County of
Allegheny, 911 dispatchers gave confidential information to a
distressed and suspended co-worker concerning the
whereabouts of his ex-girlfriend, and we likewise reversed the
dismissal of a complaint against the dispatchers because they
were “aware that [the co-worker] was distraught over his break
up” and they could reasonably foresee that some type of serious
harm could result from giving him the information; hence, the
inferences to be drawn from “ordinary common sense”
supported the dispatchers’ knowledge of risk. 515 F.3d at 228–
29, 241, 246. So too here: The risk of lethal harm when a
firearms instructor skips over each of several safety checks
designed to ascertain if the gun is unloaded, points the gun at a
trainee’s chest, and pulls the trigger is glaringly obvious, and
this obviousness supports the inference that the instructor had
actual knowledge of the risk of serious harm.

       Second, the complaint alleges that Schroeter was a
specially trained firearms instructor with twenty years of
experience. And that training and experience is no less




                               25
relevant to Schroeter’s actual knowledge of the substantial risk
of harm here than the “medical training” of which we took note
for the emergency medical technicians in Rivas v. City of
Passaic, 365 F.3d 181, 185, 194–95 (3d Cir. 2004), or the
“experience as a teacher in charge of a kindergarten classroom”
that we deemed relevant to the teacher’s knowledge of risk in
releasing the child to a stranger in L.R., 836 F.3d at 245;13 see
also MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 217
(3d Cir. 2005) (observing that, even where a risk is “so
obvious,” an individual’s prior “experience and knowledge”
makes it more likely that he will “realize[]” that risk). Thus,
even if, hypothetically, the obviousness of the risk here would
not be sufficient to impute actual knowledge to a layperson, the
combination of obviousness with Schroeter’s specialized
training and expertise in firearms safety is easily sufficient to
give rise to an inference of actual knowledge of risk.

       Third, the complaint alleges that Schroeter was
expressly advised of the lethal risk in handling any operational
firearm through the safety rules that he acknowledged in
writing and that, as a training instructor, he himself was
responsible for teaching to others. Those safety protocols were

       13
           Schroeter argues that we should disregard L.R.
entirely because it post-dated the shooting. As the Supreme
Court has observed, however, a later-decided case may still be
considered when assessing whether a principle was clearly
established to the extent the case is merely “illustrative of the
proper application” of a previously established constitutional
principle. Wiggins v. Smith, 539 U.S. 510, 522 (2003)
(discussing this meaning of “clearly established” in the habeas
context). It is for that limited purpose that we refer to L.R. in
this part of our discussion.




                               26
clear and detailed, requiring that an instructor, prior to
demonstrating the use of a firearm, (a) conduct a safety check
to ensure the gun was not loaded, (b) implement a second
safety check by, e.g., having a second person independently
verify the gun is not loaded, (c) always treat the firearm as if it
were loaded, (c) point the muzzle only at a safe target, (d) never
point the firearm at another person, (e) always keep his finger
off the trigger unless firing at a safe target, and (f) before
demonstrating a “trigger pull,” open the gun to visually and
physically confirm it is unloaded. JA 31. The complaint
alleges that Schroeter not only ignored these directives but
directly contravened each and every one of them. Those
allegations—which could be characterized as not merely
circumstantial, but even direct, evidence of mens rea—give
rise to at least as strong an inference of knowledge of risk as
the kindergarten teacher’s knowledge and disregard of school
policy concerning the release of children in L.R., 836 F.3d at
240 & n.2, 245, and the 911 dispatchers’ “unauthorized”
disclosure of what they knew constituted “confidential
information” in Phillips, 515 F.3d at 229, 241.

        In addition to these three categories of evidence that
support an inference of actual knowledge, the complaint also
alleges direct evidence of Schroeter’s mental state in the form
of his criminal plea to reckless endangerment. That guilty plea
required Schroeter, as a matter of Pennsylvania law, to admit
that he “recklessly engage[d] in conduct which place[d] . . .
another person in danger of death or serious bodily injury,” 18
Pa. Cons. Stat. § 2705, with the mental state of “conscious[]
disregard[] [of] a substantial and unjustifiable risk” of serious
harm, 18 Pa. Cons. Stat. § 302(b)(3); see also Klein, 795 A.2d
at 427–28. In other words, even assuming Appellant could not
invoke “non-mutual offensive collateral estoppel” to seek a




                                27
judgment based in part on issue preclusion—which was the
ground on which the District Court disregarded the plea,14
Kedra, 161 F. Supp. 3d at 364 n.5—the allegation in the
complaint that Schroeter pleaded guilty to these charges
reflects a statement by a party-opponent, presumptively
admissible at trial, see Fed. R. Evid. 801(d)(2), that Schroeter
acted with the requisite knowledge of risk.

       In sum, this is not a case where Appellant’s theory of
deliberate indifference devolves to mere negligence or is based
only on what Schroeter objectively should have known given
the obvious risk. Instead, the obviousness of the risk in
pointing a gun at a defenseless person and pulling the trigger

       14
           The question whether a state criminal conviction
based on a guilty plea may be preclusive of any claims or issues
is a question of the law of the state where the criminal
proceeding took place, see Allen v. McCurry, 449 U.S. 90,
104–05 (1980); Dici, 91 F.3d at 547–48, and one we need not
answer as Appellant relies on the plea at this stage not to invoke
issue preclusion, but only to argue that her allegations were
sufficient to survive Schroeter’s motion to dismiss. We note,
however, that under Pennsylvania law, a party’s “criminal
conviction may be used to establish the operative facts in a
subsequent civil case based on those same facts, and . . . [a]
guilty plea constitutes an admission to all the facts averred in
the indictment.” Commonwealth, Dep’t of Transp. v. Mitchell,
535 A.2d 581, 585 (Pa. 1987) (citation omitted); see also
Restatement (Second) of Judgments § 85 cmt. c (Am. Law Inst.
1982). Particularly where, as here, a party is not claiming issue
preclusion but is relying on a plea only as a factual allegation
to support an inference of actual knowledge, the plea is, at least
to that extent, relevant.




                               28
without undertaking any safety check whatsoever only
reinforces the many other allegations of the complaint
reflecting Schroeter’s “conscious disregard of a substantial risk
of serious harm.” Vargas, 783 F.3d at 973 (brackets and
internal quotation marks omitted). “[D]raw[ing] all inferences
from the facts alleged in the light most favorable to
[Appellant],” Phillips, 515 F.3d at 228, the allegations in
Appellant’s complaint are more than sufficient to state a claim
for a state-created danger based on actual knowledge of a
substantial risk of serious harm—the subjective theory of
deliberate indifference that was then-clearly established. See
Sanford, 456 F.3d at 309–10 & n.13.

              2.     The District Court’s Misapprehension of
                     the Culpability Required for Deliberate
                     Indifference

        The District Court reached the opposite conclusion,
relying on the premise that Schroeter’s conduct could not
reflect a “conscious disregard of a substantial risk of serious
harm,” Vargas, 783 F.3d at 973–74 (brackets and internal
quotation marks omitted), unless Schroeter actually knew there
was a bullet in the chamber, see Kedra, 161 F. Supp. 3d at 363–
66. That approach, however, fundamentally misapprehends
(1) the relevance of circumstantial evidence to inferring actual
knowledge, (2) the pleading standard applicable at this stage of
the case, (3) the culpability required for cases involving
“unhurried judgment[],” Vargas, 783 F.3d at 973, and (4) the
essential purposes of the state-created danger doctrine.

        First, by requiring Appellant to plead Schroeter’s
knowledge of a bullet in the chamber, the District Court in
effect required plaintiffs to plead actual knowledge using only




                               29
direct evidence. But the Supreme Court has instructed that
“[w]hether a [state actor] ha[s] the requisite knowledge of a
substantial risk is a question of fact subject to demonstration in
the usual ways, including inference from circumstantial
evidence, and a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was
obvious,” Farmer, 511 U.S. at 842 (citation omitted); see also
Hope, 536 U.S. at 738, and we have likewise stated that
“[i]nferring mental state from circumstantial evidence is
among the chief tasks of factfinders,” United States v. Wright,
665 F.3d 560, 569 (3d Cir. 2012); see also McFadden v. United
States, 135 S. Ct. 2298, 2304 n.1 (2015) (“The Courts of
Appeals have held that, as with most mens rea requirements,
the Government can prove the requisite mental state through
either direct evidence or circumstantial evidence.”).

       Second, in concluding that the allegations of the
complaint (other than Schroeter’s criminal guilty plea) do not
give rise to an inference of actual knowledge of risk, the
District Court and our concurring colleague have done the
inverse of what we are required to do at the pleading stage:
Instead of considering the complaint as a whole, they consider
“whether any individual allegation, scrutinized in isolation,
meets that standard,” Tellabs, 551 U.S. at 322–23, and instead
of “draw[ing] all inferences from the facts alleged in the light
most favorable to [the plaintiff],” Phillips, 515 F.3d at 228,
they draw all inferences in the light most favorable to the
defendant.      For example, while acknowledging that
obviousness of risk can support an inference of actual
knowledge, the Concurrence posits that obviousness of risk
“could also . . . support an inference that there was not
deliberate indifference.” Concurrence at 9. While not
disputing that Schroeter’s training and experience are relevant




                               30
to assessing Schroeter’s state of mind, the Concurrence
hypothesizes that they make it less plausible, not more
plausible, that Schroeter was aware that his conduct carried a
substantial risk of lethal harm.15 And while granting that

       15
          At oral argument, Schroeter’s counsel went even
further, stating that “[b]ecause Corporal Schroeter was an
experienced person with training experience, in particular, it
can’t be alleged that he knew he wasn’t following [the safety
protocols]. He has to have believed he was following . . . them
or he would not have done what he did.” Oral Arg. at 37:43–
38:06, available at http://www2.ca3.uscourts.gov/oral
argument/audio/16-1417Kedrav.Schroeter.mp3. Aside from
being entirely circular, Schroeter’s reasoning that the more
obvious the risk, the weaker the inference of conscious
disregard, flies in the face of Supreme Court precedent, which
not only treats obviousness of risk as a basis from which to
infer actual knowledge of risk, see, e.g., Hope, 536 U.S. at 738;
see also Phillips, 515 F.3d at 237–39; Morse, 132 F.3d at 910
n.10; Kneipp, 95 F.3d at 1208–09, but, as discussed above, also
instructs us, in reviewing the sufficiency of a complaint, to
draw this very reasonable inference in favor of the plaintiff—
not, as Schroeter urges, the other way around, see Iqbal, 556
U.S. at 678; see also Phillips, 515 F.3d at 231, 233. Counsel’s
argument points up another reason qualified immunity must be
denied in this case: The complaint alleges that Schroeter acted
with actual awareness of the risk; Schroeter disputes that
allegation. What we have here portends a quintessential
disputed issue of material fact, turning on the credibility of
witnesses to be assessed by a jury, see Metzger v. Osbeck, 841
F.2d 518, 521 (3d Cir. 1988), and certainly not appropriate for
resolution on a motion to dismiss, see Phillips, 515 F.3d at
234–35.




                               31
Schroeter acknowledged in writing the safety protocols he
failed to follow, the Concurrence rejects the unavoidable
inference that Schroeter therefore knew the risk of harm those
protocols were intended to prevent and instead speculates that
Schroeter possibly “d[id] not . . . remember[]” his training and
did not know that “he failed to follow” the rules. Concurrence
at 10. Only by drawing each inference in favor of the
defendant can the District Court and Concurrence conclude
that Schroeter was not “aware . . . that pulling the trigger
carried a deadly risk,” Kedra, 161 F. Supp. 3d at 363–64, or
that it is no more than “possibl[e]” or “conceivable” that he
knew the gun “might be loaded” when he fired it. Concurrence
at 9 (alteration in original).

        Although, at trial, Schroeter might offer evidence that
he affirmatively believed the gun was unloaded and had some
reasonable basis for such a belief, we may not prevent the case
from ever reaching trial by positing other possible inferences
and “den[ying]” the plaintiff “the inferences to which her
complaint is entitled,” Phillips, 515 F.3d at 237. Instead, we
need only ask whether it is “plausible”—given the obviousness
of the risk—to believe a trained firearms instructor with twenty
years’ experience knows that any unchecked gun might be
loaded and therefore cannot be fired at another person without
substantial risk of serious harm.16 To state the question is, as a

       16
           The Concurrence contends that obviousness of risk
could not, in and of itself, be sufficient to plead actual
knowledge, excerpting from Farmer that “obviousness of a
risk is not conclusive.” Concurrence at 8 (quoting Farmer, 511
U.S. at 843 n.8). In context, however, that excerpt proves
precisely the opposite, for the Supreme Court there explained
that, at the summary judgment stage—despite the indisputable




                               32
matter of “common sense,” Iqbal, 556 U.S. at 679, to answer
it: Appellant’s allegations are more than enough to “nudge[]”
her claim “across the line from conceivable to plausible.”
Twombly, 556 U.S. at 570.

       Third, by requiring Appellant to plead that Schroeter
had actual knowledge of a bullet in the chamber, the District
Court imposed a novel and heightened culpability standard on
a plaintiff pleading deliberate indifference, elevating
knowledge of a “substantial risk” of harm to knowledge of a
certainty of harm, confusing the “conscious disregard”
standard that applies where an officer can exercise “unhurried
judgment” with the far higher standard of “intent to harm” that
applies when an officer a state actor must act in a
“hyperpressurized environment requiring a snap judgment,”
Vargas, 783 F.3d at 973–74 (brackets and internal quotation


inference of actual knowledge raised by obviousness of risk—
there may yet be a genuine issue of material fact because “a
prison official may show that the obvious escaped him.”
Farmer, 511 U.S. at 843 n.8. The Court then proceeded to
observe that, at trial, obviousness of risk alone could support a
finding of liability, stating that if “circumstances suggest that
the defendant-official being sued had been exposed to
information concerning the risk and thus ‘must have known’
about it, then such evidence could be sufficient to permit a trier
of fact to find that the defendant-official had actual knowledge
of the risk.” Id. at 842–43. In short, Farmer recognizes that
obviousness of risk alone can be sufficient to survive summary
judgment and to establish actual knowledge at trial; a fortiori,
it is sufficient to give rise to an inference of actual knowledge
at the pleading stage.




                               33
marks omitted), and, at bottom, requiring a plaintiff to plead
criminal (and here, homicidal) intent to overcome qualified
immunity.17

       “Intent to harm,” however, far exceeds what is required
to plead deliberate indifference. Vargas, 783 F.3d at 973–74.
In discussing deliberate indifference in the Eighth Amendment

       17
          The District Court also suggested at one point that the
complaint was deficient for failure to plead that Schroeter was
“consciously aware that he had failed to follow all of the safety
rules and proceeded anyway,” emphasizing the lack of an
allegation that Schroeter “realize[d] in the moment” he was not
following the rules. Kedra, 161 F. Supp. 3d at 363. There is
no requirement, however, that a defendant be thinking “in the
moment” he causes injury that he is violating relevant safety
rules. As Appellant astutely observes, to the extent the District
Court acknowledged the allegation that Schroeter knew the
gun safety rules and acted in violation of them, but found fault
in Appellant’s failure to specifically allege that Schroeter
“kn[ew] he was acting in violation of them,” its parsing of the
culpability analysis “seems akin to counting angels dancing on
the head of a pin.” Appellant’s Br. 18. More importantly,
however, Farmer and our case law have not required a plaintiff
to plead and prove conscious disregard of safety rules as an
element of a state-created danger claim, but rather “conscious
disregard of a substantial risk of serious harm,” Vargas, 783
F.3d at 973–74 (brackets and internal quotation marks
omitted); see also Farmer, 511 U.S. at 842—a standard that,
as discussed supra at Section III.B.1, may be supported (as it
is here) by a variety of factual allegations, including the state
actor’s violation of applicable safety protocols before the harm
is actually inflicted.




                               34
context, the Supreme Court has emphasized that a claimant
“need not show that a prison official acted or failed to act
believing that harm actually would befall an inmate; it is
enough that the official acted or failed to act despite his
knowledge of a substantial risk of serious harm.” Farmer, 511
U.S. at 842. We too have made this distinction clear in the
Fourteenth Amendment context, describing “deliberate
indifference” as a “willingness to ignore a foreseeable danger
or risk,” Morse, 132 F.3d at 910, and observing that
conscience-shocking behavior for “unhurried” situations,
Vargas, 783 F.3d at 973, requires “proof of something less than
knowledge that the harm was practically certain . . . [to] occur,”
Ziccardi v. City of Philadelphia, 288 F.3d 57, 66 (3d Cir.
2002).

        The cases in which we have applied this standard also
illustrate that the subjective knowledge test requires
knowledge only of the substantial risk of serious harm, not of
the certainty of that harm. For instance, in Kneipp, we held
that the plaintiffs could show the defending police officers’
mental state of “willful disregard” based on the foreseeable risk
that serious harm was likely to befall an unescorted woman
whom they had left “in a visibly intoxicated state in cold
weather”; we did not require the plaintiffs to allege that the
police officers knew with certainty that the woman would fall
down an embankment and suffer hypothermia. 95 F.3d at
1208–09. In Phillips, we held that the plaintiff adequately
alleged deliberate indifference because the complaint had
“allege[d] facts [showing] that the defendants . . . foresaw the
danger of harm their actions presented,” even if the complaint
did not allege that the defendants knew with certainty that their
former co-worker would find and kill his ex-girlfriend, her
sister, and her then-boyfriend. 515 F.3d at 228–29, 240–41.




                               35
And more recently in L.R., we denied qualified immunity to
the teacher who released a kindergartener into the custody of a
stranger, observing that the teacher was “aware of the risk of
harm in releasing [the child] to a stranger, even if he was
unaware of [the perpetrator’s] specific criminal intent.” 836
F.3d at 246.

        As these cases make clear, all that is required to satisfy
deliberate indifference is “conscious disregard of a substantial
risk of serious harm,” Vargas, 783 F.3d at 973–74 (brackets
and internal quotation marks omitted), regardless of whether
that harm is either intended or certain to occur, see Lewis, 523
U.S. at 852 n.11; L.R., 836 F.3d at 246; Phillips, 515 F.3d at
241; Kneipp, 95 F.3d at 1208–09. That is the standard
applicable where, as here, an official has time to make
“unhurried judgments,” Vargas, 783 F.3d at 973, and
Appellant’s factual allegations are more than sufficient to
satisfy that standard. See supra Section III.B.1. What is not
required is knowledge of certainty of harm or the intent to
harm—the standard expressly adopted by the District Court.
See Kedra, 161 F. Supp. 3d at 363–66.

        Lastly, the District Court’s approach to deliberate
indifference is inconsistent not only with the applicable
pleading and culpability standards, but also with the purposes
of the state-created danger doctrine. Although the District
Court found that Schroeter could not be held liable for
deliberate indifference without an allegation of intent to harm,
see Kedra, 161 F. Supp. 3d at 363–66, this approach is
mistaken, for requiring criminal or even homicidal intent for
liability under the state-created danger doctrine disregards the
twin goals of compensation and deterrence underlying the




                               36
doctrine and, more broadly, ignores the statutory goals that
Congress codified in 42 U.S.C. § 1983.

        The state-created danger doctrine—rooted in the
Fourteenth Amendment’s guarantee of due process, which is
“designed to . . . secure certain individual rights against both
State and Federal Government,” Daniels v. Williams, 474 U.S.
327, 332 (1986)—exists to provide plaintiffs with recompense
when a state official, who is entrusted with particular
responsibilities and duties with respect to a particular person or
“class of persons,” Bright, 443 F.3d at 281 (discussing
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S.
189, 201 (1989)), acts with at least “conscious disregard of a
substantial risk of serious harm,” Vargas, 783 F.3d at 973–74
(brackets and internal quotation marks omitted), and
affirmatively uses his authority “in a way that create[s] a
danger to [a] citizen or that render[s] the citizen more
vulnerable to danger” than had he not acted at all, Bright, 443
F.3d at 281. Because the state-created danger doctrine applies
only where these particular special relationships exist, the
victims of the state officials’ acts will always be persons who
either expected the officials not to injure them or justifiably
relied on the officials to protect them from threats to their
safety. See, e.g., L.R., 836 F.3d at 239–40, 247; Phillips, 515
F.3d at 228–29, 242–43; Kneipp, 95 F.3d at 1201–05, 1209
(citing DeShaney, 489 U.S. at 199–200). Where such officials
in unhurried situations consciously disregard the risk of harm
to persons relying on them for safety, even if the officials did
not know with certainty that their actions would lead to serious
or lethal harm, the victims—or at least their survivors—are
entitled to recompense.




                               37
        What’s more, remedies under § 1983, as applied to
state-created danger cases, not only seek to “provide relief to
victims,” but also serve the additional “purpose . . . [of]
deter[ring] state actors from using the badge of their authority
to deprive individuals of their federally guaranteed rights.”
Squires v. Bonser, 54 F.3d 168, 172 (3d Cir. 1995) (quoting
Wyatt v. Cole, 504 U.S. 158, 161 (1992)). When officers know
that they may be held liable under § 1983 for conscience-
shocking behavior that endangers persons relying on them, see
Bright, 443 F.3d at 281, the threat of § 1983 state-created
danger suits acts as a deterrent force against individual officers
acting with “conscious disregard of a substantial risk of serious
harm,” Vargas, 783 F.3d at 973–74 (brackets and internal
quotation marks omitted). This “important public purpose”
also helps “protect[] the rights of the public at large,”
Livingstone v. N. Belle Vernon Borough, 91 F.3d 515, 535 (3d
Cir. 1996), because, to the extent that municipalities may be
held liable for their officers’ conduct, see Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 694 (1978), and to the extent non-
municipal governmental entities are obliged to indemnify
officers held liable under § 1983, see generally, e.g., N.J. Stat.
Ann. § 59:10A-1, state-created danger suits encourage these
entities to implement and provide training on policies that deter
such conscience-shocking conduct, cf. Monell, 436 U.S. at
694–95.

       In sum, because the allegations in Appellant’s
complaint collectively give rise to the inference that Schroeter
acted with actual knowledge of a substantial risk of lethal
harm—that is, knowledge that gives rise to “a degree of
culpability that shocks the conscience” under the then-clearly
established actual knowledge theory of deliberate indifference,
Bright, 443 F.3d at 281; see Farmer, 511 U.S. at 837–38, 843




                               38
n.8; Sanford, 456 F.3d at 309–10 & n.13—Appellant has
adequately pleaded her state-created danger claim.18

       C.     Whether the Right at Issue Was Clearly
              Established

       Having concluded that the facts, as alleged, plead the
elements of a substantive due process violation under a clearly
established theory of liability, we must still contend with
Schroeter’s argument that there was no precedent sufficiently
“factually similar to the plaintiff’s allegations[] to put [him] on
notice that his . . . conduct [was] constitutionally prohibited.”
Appellee’s Br. 26 (quoting Mammaro v. N.J. Div. of Child
Prot. & Permanency, 814 F.3d 164, 169 (3d Cir. 2016)). This
targets the second prong of the qualified immunity analysis
from a different angle and requires us to ask “the objective
(albeit fact-specific) question whether a reasonable officer
could have believed [Schroeter’s conduct] to be lawful, in light
of clearly established law and the information [he] possessed.”
Anderson, 483 U.S. at 641; see also Beers-Capitol, 256 F.3d at
142 n.15.

       18
           Contrary to our concurring colleague’s concerns
about what our holding in this case portends for state-created
danger cases or the element of deliberate indifference going
forward, we do not today “reduc[e] the standard of deliberate
indifference” anywhere “close to negligence.” Concurrence at
10. Instead, we require of Appellant’s complaint what we have
historically required for liability under the state-created danger
doctrine: allegations of conscience-shocking, affirmative
behavior from a state official that caused “foreseeable and
fairly direct” harm to a person who was a foreseeable victim of
that behavior. Bright, 443 F.3d at 281.




                                39
        Because the District Court here concluded Appellant’s
theory of deliberate indifference was not clearly established
law, it did not proceed to define the specific right at issue or to
address whether that right was itself clearly established at the
relevant time. See Kedra, 161 F. Supp. 3d at 365. However,
“[d]efining the right at issue is critical to this inquiry.” L.R.,
836 F.3d at 248. We must frame the right at issue “in light of
the specific context of the case, not as a broad general
proposition,” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per
curiam), and so while “[i]ndividuals indeed have a broad
substantive due process right to be free from ‘unjustified
intrusions on personal security,’” L.R., 836 F.3d at 248–49, that
defines the right at issue at too high a level of generality.

       Here, in view of the allegations of the complaint, we
define what is at issue as an individual’s right not to be
subjected, defenseless, to a police officer’s demonstration of
the use of deadly force in a manner contrary to all applicable
safety protocols.19 We then must determine whether the

       19
           Our concurring colleague would define the right at
issue as “a police officer’s right not to be subjected to a
firearms training in which the instructor acts with deliberate
indifference, that is, consciously disregards a known risk of
death or great bodily harm.” Concurrence at 12–13. But that
definition is broader, not narrower, than what we articulate
because it is susceptible to a wide range of applications and is
not, by its terms, anchored in any factual scenario. Moreover,
with that definition, it is a foregone conclusion whether the
right is “clearly established,” because its definition merely
repeats the elements of the claim. Both to “give[] government
officials breathing room to make reasonable but mistaken
judgments,” Messerschmidt v. Millender, 565 U.S. 535, 546




                                40
contours of that right are sufficiently clear that “a reasonable
officer would understand that what he is doing violates that
right.” Rivas, 365 F.3d at 200. We typically look to Supreme
Court precedent or a consensus in the Courts of Appeals to give
an officer fair warning that his conduct would be
unconstitutional. Mammaro, 814 F.3d at 169. However, it
need not be the case that the exact conduct has previously been
held unlawful so long as the “contours of the right” are

(2012), and to avoid turning the test for clearly established
rights into a mere tautology, see, e.g., Saucier v. Katz, 533 U.S.
194, 204 (2001) (rejecting a suggestion to make “excessive
force analysis indistinguishable from qualified immunity,
rendering the separate immunity inquiry superfluous and
inappropriate,” and holding that the two “inquiries . . . remain
distinct”), the Supreme Court has repeatedly admonished
courts to define the right “not as a broad general proposition,”
Mullenix, 136 S. Ct. at 30, but in terms “‘particularized’ to the
facts of the case,” White v. Pauly, 137 S. Ct. 548, 552 (2017)
(per curiam). That definition also conflates the first and second
prongs of the qualified immunity analysis, for while a plaintiff
assuredly must establish the elements of a constitutional
violation at the first prong, we do not require those elements to
be restated within the definition of a right at the second prong
to assess whether that right was clearly established. Rather, the
focus of that assessment is whether the specific conduct at
issue is sufficiently “factually similar” to then-existing
precedent to put a reasonable officer “on notice that
his . . . conduct [was] constitutionally prohibited,” Mammaro,
814 F.3d at 169, and the right at the second prong is therefore
generally defined by the factual context of the “particular
conduct,” Saucier, 533 U.S. at 201, not by the legal elements
of the claim, Mullenix, 136 S. Ct. at 308.




                               41
sufficiently clear, Anderson, 483 U.S. at 640, such that a
“general constitutional rule already identified in the decisional
law” applies with “obvious clarity,” Hope, 536 U.S. at 741. “If
the unlawfulness of the defendant’s conduct would have been
apparent to a reasonable official based on the current state of
the law, it is not necessary that there be binding precedent from
this circuit so advising.” Brown v. Muhlenberg Twp., 269 F.3d
205, 211 n.4 (3d Cir. 2001). “[O]fficials can still be on notice
that their conduct violates established law even in novel factual
circumstances,” because the relevant question is whether the
state of the law at the time of the events gave the officer “fair
warning.” Hope, 536 U.S. at 741.

        We are persuaded that Schroeter had such fair warning
at the time of the shooting. This was not merely an accidental
discharge of a firearm that happened to be “point[ed] . . . at
another officer” at the time. Concurrence at 1. Instead, at a
training Kedra was required to attend, he was subjected to his
training instructor contravening each and every firearm safety
protocol by skipping over both required safety checks, treating
the firearm as if it were unloaded, pointing the firearm directly
at Kedra, and pulling the trigger.

        Our case law made it clear at that time that state actors
may be liable for affirmatively exposing a plaintiff to a deadly
risk of harm through “highly dangerous . . . conduct,” Morse,
132 F.3d at 910 n.10, or through “us[ing] their authority as
police officers to create a dangerous situation or to make [the
victim] more vulnerable to danger had they not intervened,”
Kneipp, 95 F.3d at 1209, and that officials are expected to use
the benefit of their expertise and professional training when
confronted with situations in which they are responsible for
preventing harm to other individuals, see Rivas, 365 F.3d at




                               42
194–95. Under that case law, no reasonable officer who was
aware of the lethal risk involved in demonstrating the use of
deadly force on another person and who proceeded to conduct
the demonstration in a manner directly contrary to known
safety protocols could think his conduct was lawful. On the
contrary, as we observed in Beers-Capitol, “a reasonable [state
actor] could not believe that h[is] actions comported with
clearly established law while also believing that there is an
excessive risk to the plaintiff[] and failing to adequately
respond to that risk.” 256 F.3d at 142 n.15.

        In addition to our own case law and that of the Supreme
Court, “we routinely consider decisions by other Courts of
Appeals as part of our ‘clearly established’ analysis when we
have not yet addressed the specific right asserted by the
plaintiff.” Williams v. Bitner, 455 F.3d 186, 192–93 (3d Cir.
2006) (collecting cases). A closely analogous case from the
First Circuit confirms that a reasonable officer would
anticipate liability for this conduct. In Marrero-Rodríguez v.
Municipality of San Juan, that court considered the actions of
a police lieutenant who violated numerous safety protocols
while engaging in a training session. 677 F.3d 497, 500 (1st
Cir. 2012). In participating in the live demonstration exercise
there, the officer failed to discharge the bullets from his gun
into a sandbox as required when entering the training area, used
a real gun rather than the required “dummy” gun, and shot the
gun directly into the back of a trainee—who was not wearing
a bulletproof vest—while the trainee was lying face-down on
the ground. Id. Just as here, there was no allegation that the
officer knew his gun was loaded or that he intended to harm
his fellow officer. The court nonetheless concluded that “using
what was obviously lethal force, entirely disproportionate to
any reasonable need, in conducting the lesson” was




                              43
“shockingly indifferent to the rights” of the trainee.20 Id. at
501–02; cf. Hawkins v. Holloway, 316 F.3d 777, 787 (8th Cir.
2003) (holding that “an official’s threat to employ deadly
force” with a firearm rose to the level of “arbitrary and
conscience shocking behavior prohibited by substantive due
process”); Grandstaff v. City of Borger, 767 F.2d 161, 167–68
(5th Cir. 1985) (holding it was clearly established that the use
of “deadly force, in conscious disregard of substantial risk of
harm to innocent parties” was a constitutional due process
violation).21

       20
          The Concurrence seeks to distinguish Marrero-
Rodríguez from this case on the ground that there “dummy
guns” were to be used, 677 F.3d at 500, whereas here the
training involved real firearms. For purposes of deliberate
indifference, however, this is a distinction without a difference.
In both cases, the officer used a firearm in a way that was not
allowed by failing to conduct basic safety checks to determine
whether the firearm was loaded prior to firing it. That
Schroeter made a “mistake, however reckless,” Concurrence at
16, is exactly the point: “[R]eckless[] disregard[]” of a
“substantial risk of serious harm” is the very definition of
deliberate indifference. Farmer, 511 U.S. at 836.
       21
           As Appellant points out, Fourth Amendment
excessive force cases like Baird v. Renbarger, 576 F.3d 340
(7th Cir. 2009), and Couden v. Duffy, 446 F.3d 483 (3d Cir.
2006), which recognize a citizen’s clearly established right not
to have a police officer “point” a gun at him if he poses “no
hint of danger,” Baird, 576 F.3d at 346–47; accord Couden,
446 F.3d at 497–98, also support the notion that the substantive
due process right here was clearly established. While we need
not rely on those cases given the ample case law supporting the
clearly established nature of this right in the substantive due




                               44
        Schroeter, however, relies on Spady v. Bethlehem Area
School District to argue that the right here should be defined
more narrowly and that this right was not clearly established at
the time. 800 F.3d 633 (3d Cir. 2015). In Spady, a student was
briefly submerged in water during a swimming class, exited the
pool and complained of some chest pain, returned to the pool
as directed for the remainder of the class, and more than an
hour later suffered serious distress and death from a rare
condition known as “dry drowning.” Id. at 635–36. In the face
of this extremely unusual and “non-apparent condition,” we
defined the right there as “the right to affirmative intervention
by the state actor to minimize the risk of secondary or dry
drowning,” and held that risk would not have been apparent to
a reasonable gym teacher under our state-created danger cases.
Id. at 638–42. Drawing on that analysis, Schroeter contends
that the harm that came to Kedra was also due to a “non-
apparent” condition, id. at 639, such that the right should be
defined as a “right . . . in favor of a trainee in a state office
which . . . requires affirmative compliance with all required
safety procedures so as to . . . ‘minimize the risk’ to the trainees
during a training session.” Oral Arg. at 25:45–27:38 (quoting
Spady, 800 F.3d at 638).

       This argument mischaracterizes the risk of harm
presented on the face of Appellant’s complaint and misstates
our case law. There is nothing “non-apparent,” Spady, 800
F.3d at 639, in the risk of harm caused by pointing a firearm at
an unarmed person and pulling the trigger at close range. Quite
the opposite: The substantial risk of lethal harm is glaringly

process context itself, those Fourth Amendment cases only
reinforce our conclusion here.




                                45
obvious here and bears no resemblance to the obscure and
improbable risk of dry drowning, which we concluded the
coach in Spady could not have been reasonably expected to
know about or protect against. Indeed, we expressly
distinguished the facts of Spady from those of Kneipp, pointing
out that in Kneipp, the officers’ “act of separating a visibly
intoxicated person from her traveling companion and then
forcing her to walk home alone . . . necessarily increased the
obvious risk that she would fall and injure herself.” Spady, 800
F.3d at 639. And at issue here is not a training instructor’s
failure to “compl[y] with all required safety procedures” to
minimize the risk to trainees, Oral Arg. at 26:00–26:06; it is a
training instructor’s physical demonstration of the use of
deadly force on a defenseless subject while failing to comply
with any required safety procedure to avoid the risk of death.
Spady is simply inapposite where, as here, the risk was
obvious, the risk was actually known to the state actor, the
safety precautions that could have avoided that risk were the
very subject matter of the actor’s training and expertise, and
those safety precautions were skipped or directly contravened.

        In sum, the right alleged to have been violated was
clearly established, and Appellant’s complaint sufficiently
pleads a violation of that right. Accordingly, Schroeter was not
entitled to qualified immunity.

IV.    Conclusion

       For the foregoing reasons, we will reverse and remand
for proceedings consistent with this opinion.




                              46
JOAN KEDRA, in her own right and as personal
representative of the estate of David Kedra, Appellant v.
RICHARD SCHROETER
No. 16-1417


FISHER, Circuit Judge, concurring.
       It is undeniable that this tragic death never should have
occurred and it is indisputable that defendant Schroeter
should have known better than to point a gun at another
officer without following proper safety precautions. So at first
glance, it is difficult to find fault with the majority’s
compelling discussion of why Schroeter’s conduct shocks the
conscience. Nonetheless, I file this concurrence to explain my
belief that the District Court’s judgment should be reversed
on narrower grounds than those on which the majority relies.
                               I.
       “Qualified immunity shields government officials from
civil damages liability unless the official violated a statutory
or constitutional right that was clearly established at the time
of the challenged conduct.” Reichle v. Howards, 132 S. Ct.
2088, 2093 (2012). It involves a two-step process, which a
court may address in either order. Pearson v. Callahan, 555
U.S. 223, 236 (2009). The first step “asks whether the facts,
taken in the light most favorable to the party asserting the
injury, show the officer’s conduct violated a federal right.”
Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per curiam)
(internal quotation marks and alterations omitted). The
second step “asks whether the right in question was clearly
established at the time of the violation.” Id. at 1866 (internal
quotation marks omitted).




                               1
        The District Court granted Schroeter qualified
immunity under the second prong, concluding that it was not
clearly established that he could violate a constitutional right
without actual knowledge that his actions posed a substantial
risk of harm. The majority reverses, concluding that (1) Kedra
has pleaded that Schroeter acted with actual knowledge that
his actions posed a substantial risk of harm, and (2) the right
at issue here was clearly established.
       The Supreme Court recently noted that it “has issued a
number of opinions reversing federal courts in qualified
immunity cases” over “the last five years.” White v. Pauly,
137 S. Ct. 548, 551 (2017) (per curiam). It has expressed
“reluctan[ce] to expand the concept of substantive due
process because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended.” Collins v.
City of Harker Heights, 503 U.S. 115, 125 (1992). Mindful of
these cautionary words, I would limit this decision to the
narrowest possible grounds, and would reverse solely because
of the allegation that Schroeter pleaded guilty to recklessly
endangering another person in Pennsylvania court. I do not
believe that the other allegations on which the majority relies
are sufficient—separately or together—to state a claim.
                              A.
       To prove a constitutional violation under the state
created danger theory, a plaintiff must establish four
elements: that “(1) the harm ultimately caused was
foreseeable and fairly direct; (2) a state actor acted with a
degree of culpability that shocks the conscience; (3) a
relationship between the state and the plaintiff existed such
that the plaintiff was a foreseeable victim of the defendant’s
acts …; and (4) a state actor affirmatively used his or her
authority in a way that created a danger to the citizen or that




                               2
rendered the citizen more vulnerable to danger than had the
state not acted at all.” Sanford v. Stiles, 456 F.3d 298, 304-05
(3d Cir. 2006) (per curiam). In the District Court, the parties
agreed that the element at issue is the second one: whether
Kedra alleged that Schroeter’s conduct shocks the
conscience.1
        The Supreme Court has explained that “negligently
inflicted harm is categorically beneath the threshold of
constitutional due process,” while “conduct intended to injure
in some way unjustifiable by any government interest is the
sort of official action most likely to rise to the conscience-
shocking level.” County of Sacramento v. Lewis, 523 U.S.
833, 849 (1998). “Whether the point of the conscience
shocking is reached when injuries are produced with
culpability falling within the middle range, following from
something more than negligence but less than intentional
conduct, such as recklessness or gross negligence, is a matter
for closer calls.” Id. (internal quotation marks and citation
omitted). This is precisely such a close-call case—which is
why we should, as the Supreme Court has advised, be
reluctant to expand the concept of substantive due process.
Collins, 503 U.S. at 125.

       1
         The majority notes that on appeal, Schroeter appears
to contest the fourth element by arguing that his conduct
constituted a failure to act, rather than an “affirmative act,” as
is required. Sanford v. Stiles, 456 F.3d 298, 305 (3d Cir.
2006). The complaint sufficiently alleges that, by not
performing safety checks and then raising and firing the gun,
Schroeter “created an opportunity for harm that would not
have otherwise existed.” Rivas v. City of Passaic, 365 F.3d
181, 197 (3d Cir. 2004) (combination of acts and omissions
satisfied fourth prong of state created danger analysis).




                                3
        I agree with the majority that here, there was no
“hyperpressurized environment” and “unhurried judgments”
were possible. Therefore, the level of culpability required to
shock the conscience is deliberate indifference. Sanford, 456
F.3d at 309. We have defined deliberate indifference as
falling in the “middle range” identified by the Supreme
Court—“between intent, which includes proceeding with
knowledge that the harm is substantially certain to occur and
negligence, which involves the mere unreasonable risk of
harm to another.” Morse v. Lower Merion Sch. Dist., 132
F.3d 902, 910 n.10 (3d Cir. 1997) (internal quotation marks
omitted). Since we first adopted the state created danger
theory, we have repeatedly left open whether the appropriate
standard for evaluating deliberate indifference in a
substantive due process case is subjective or objective. See,
e.g., Kaucher v. Cnty. of Bucks, 455 F.3d 418, 428 n.5 (3d
Cir. 2006); Sanford, 456 F.3d at 309 n.13. In many cases, a
subjective standard will be more demanding, requiring the
plaintiff to allege specific facts that shed light on the
defendant’s mental state, rather than more general notions of
what should have been objectively clear.
       The majority acknowledges that the subjective
standard applies here, because it was the standard established
in our case law at the time of Trooper Kedra’s death.
Nevertheless, the majority goes on to analyze case law post-
dating the conduct at issue: Kingsley v. Hendrickson, 135 S.
Ct. 2466 (2015), and L.R. v. School District of Philadelphia,
836 F.3d 235, 246 (3d Cir. 2016), among others. Maj. Op. at
17-19. This discussion is unnecessary to the resolution of the
case, and I would therefore avoid it. Because the majority has
spoken, though, I feel compelled to note my disagreement.
       The majority definitively states that we settled the
question of whether a subjective or objective standard applies




                              4
when we observed that the risk of harm from the teacher’s
alleged conduct was “‘so obvious’ as to rise to the level of
deliberate indifference.” L.R. 836 F.3d at 246. In L.R.,
however, we did not explicitly acknowledge the existence of
two possible standards—subjective versus objective—or
discuss the differences between them. See id. We did not
indicate that we were adopting the objective standard or
provide any reason for doing so, which would be a surprising
way of ruling definitively on an issue that has split our sister
Circuits. Moreover, the L.R. plaintiff made allegations that
would be sufficient under the subjective standard: the teacher
asked the stranger for identification, illustrating that he was
“indeed aware of the risk of harm” in releasing the child to a
stranger. Id. Therefore, L.R.’s less-than-clear allusion to the
objective standard was dicta that was unnecessary to our
resolution of the appeal.
        The majority’s other cases are no more persuasive. In
Kingsley, the Supreme Court held that an objective standard
applied to a § 1983 claim alleging a violation of Fourteenth
Amendment substantive due process rights. 135 S. Ct. at
2472. But Kingsley involved an excessive force claim by a
pretrial detainee. 135 S. Ct. at 2470. Although Kingsley and
this case both involve Fourteenth Amendment claims, I do
not see that prisoner cases, which implicate a host of
specialized policy concerns, have much bearing on state
created danger cases. The Supreme Court’s reasons for
adopting the objective standard included prior case law
analyzing pretrial detainee excessive force claims; the
objective standard’s congruence with prison guards’ training;
and the fact that the objective standard incorporates
“deference to policies and practices needed to maintain order
and institutional security.” Id. at 2473-75. None of those
reasons apply here. Pretrial detainee cases from our sister




                               5
Circuits are similarly unpersuasive. See Darnell v. Pineiro,
849 F.3d 17, 33 (2d Cir. 2017); Castro v. Cnty. of Los
Angeles, 833 F.3d 1060, 1069 (9th Cir. 2016). Prisoner claims
under the Eighth Amendment are even further afield. See
Palakovic v. Wetzel, 854 F.3d 209 (3d Cir. 2017).
       The subjective standard is the appropriate test for
deliberate indifference in a substantive due process case
because the Fourteenth Amendment is not a “font of tort law
to be superimposed upon whatever systems may already be
administered by the States.” Daniels v. Williams, 474 U.S.
327, 332 (1986) (internal quotation marks omitted). The
subjective standard better aligns with the purposes and limits
of § 1983. Kaucher, 455 F.3d at 428 n.5 (an “objective
standard” would “move the concept of deliberate indifference
… closer to the pole of negligence”).
        Regardless of my disagreement with the majority’s
reading of cases it acknowledges are unnecessary to its
decision here, I agree with the majority that the qualified
immunity determination turns on whether Kedra has pleaded
facts from which we can infer that Schroeter acted with actual
knowledge or “a ‘conscious disregard of a substantial risk of
serious harm.’” L.R., 836 F.3d at 246 (quoting Vargas v. City
of Phila., 783 F.3d 962, 973–74 (3d Cir. 2015)). And while I
appreciate that the lines between intentional conduct,
negligence, gross negligence, recklessness, and conscious
disregard may be difficult to pinpoint, in a case like this they
are critical. Because negligence is not enough to shock the
conscience but instead denotes “culpable carelessness,”
Negligence, Black’s Law Dictionary (10th ed. 2014), Kedra
must allege that Schroeter acted with more than culpable
carelessness to have violated the Constitution.




                               6
       Kedra satisfies this burden due to her allegation that
Schroeter pleaded guilty in Pennsylvania court to reckless
endangerment of another person. As the majority notes, by
doing so, Schroeter agreed that he “recklessly engage[d] in
conduct which place[d] … another person in danger of death
or serious bodily injury.” 18 Pa. Cons. Stat. § 2705. Under
Pennsylvania law, “[t]he mens rea for recklessly endangering
another person is a conscious disregard of a known risk of
death or great bodily harm to another person.”
Commonwealth v. Hopkins, 747 A.2d 910, 916 (Pa. Super. Ct.
2000) (internal quotation marks omitted); see also
Commonwealth v. Rich, 167 A.3d 157, 162 (Pa. Super. Ct.
2017) (statutory definition provides that “[a] person acts
recklessly … when he consciously disregards a substantial
and unjustifiable risk ….”) (quoting 18 Pa. Cons. Stat.
§ 302(b)(3)).
       That language closely tracks with what is required for
conscience-shocking behavior: “a ‘conscious disregard of a
substantial risk of serious harm.’” L.R., 836 F.3d at 246
(quoting Vargas, 783 F.3d at 973-74). Therefore, I agree with
the majority that Kedra’s allegation that Schroeter pleaded
guilty to reckless endangerment sufficiently alleges that he
acted in a way that shocks the conscience. I also agree that the
District Court missed the mark when it concluded that the
guilty plea allegation is relevant “only if non-mutual
offensive collateral estoppel is extended here.” Kedra v.
Schroeter, 161 F. Supp. 3d 359, 362 n.5 (E.D. Pa. 2016). This
case is at the pleading stage, so all that is required is that the
guilty plea “nudge[]” Kedra’s allegation that Schroeter’s
behavior shocks the conscience “across the line from
conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Because the guilty plea does just that,
the complaint adequately alleges what is needed for the first




                                7
prong of the qualified immunity analysis—namely, that
Schroeter’s “conduct violated a federal right,” Tolan, 134 S.
Ct. at 1865, and “shocks the conscience,” Sanford, 456 F.3d
at 304. In contrast to the majority’s treatment of the guilty
plea as one more allegation that saves the complaint, I believe
this is where our analysis should end.
                              B.
       Aside from the guilty plea, the majority also relies on
what it calls circumstantial evidence of conscience-shocking
behavior: (1) the obviousness of the risk of pointing a gun at
another person, (2) Schroeter’s professional training, and
(3) Schroeter’s violation of safety protocols. I diverge from
the majority in my belief that none of those factors adequately
allege conduct that shocks the conscience.
      The “obviousness of a risk is not conclusive” as to a
defendant’s subjective awareness of that risk. Farmer v.




                              8
Brennan, 511 U.S. 825, 843 n.8 (1994).2 So while we “may
infer the existence of this subjective state of mind from the
fact that the risk is obvious,” Hope v. Pelzer, 536 U.S. 730,
738 (2002), the obviousness of a risk could also, in an
appropriate case, support an inference that there was not
deliberate indifference. If Schroeter knew he failed to follow
the safety procedures, he would have had to know that his
gun might be loaded when he pointed it at Kedra. In other
words, in order for the obviousness of the risk to support an
inference of deliberate indifference, we would have to infer
that Schroeter deliberately chose not to do what was
necessary to determine whether the gun was loaded. That may
be “possibl[e]” or “conceivable” (for instance, if Schroeter
had a mental illness). But in the absence of the guilty plea—
through which Schroeter admitted conscious disregard of a
known risk—I would not find it “plausible,” as the pleading
standard requires. Iqbal, 550 U.S. at 679-80.

       2
          The majority offers an interpretation under which
Farmer, as applied at the pleading stage, means the opposite
of what it says—namely, that the obviousness of a risk is, in
fact, conclusive. Maj. Op. at 32-33 n.16. However, that
interpretation is built on the premise that Farmer holds that
the obviousness of risk alone could support liability. Id. That
is incorrect. Farmer posits that liability could be premised on
what might be called obviousness-plus: evidence that a
“substantial” risk was “longstanding, pervasive, well-
documented, or expressly noted by prison officials in the
past.” 511 U.S. at 842 (internal quotation marks and citation
omitted). Therefore, Farmer does not say or signify that
obviousness of a risk alone is sufficient to survive a motion to
dismiss. In any event, my analysis of Farmer is simpler than
the majority’s; I take it to mean what it says.




                               9
         Likewise, I do not believe that Schroeter’s professional
training and violation of safety protocols would adequately
allege conscience-shocking behavior in the absence of the
guilty plea. To begin with, those allegations have a temporal
problem: under a subjective standard, the relevant inquiry is
Schroeter’s state of mind at the time he acted. The fact that he
received training beforehand does not mean he remembered
it, let alone that he was aware in the moment that he failed to
follow it. Second, a failure to follow police protocol is not
itself sufficient to establish a constitutional violation. Lewis,
523 U.S. 855 (“Regardless whether [the officer’s] behavior
offended the … balance struck in law enforcement’s own
codes of sound practice, it does not shock the conscience
….”); City of San Francisco v. Sheehan, 135 S. Ct. 1765,
1777 (2015) (“Even if an officer acts contrary to her training
… that does not itself negate qualified immunity where it
would otherwise be warranted.”).
       Most importantly, the majority’s ruling could be read,
in the future, to significantly expand the circumstances in
which a plaintiff can defeat a claim of qualified immunity.
Every public official receives employment-related rules and
trainings, but acknowledging those rules does not itself
indicate conscious awareness of the risk of harm on a future
occasion. Nor does violating an established rule transform
negligence into conscience-shocking behavior. However, in
seeming to accord equal weight to Schroeter’s prior training
and his guilty plea, I fear the majority continues a trend of
reducing the standard of deliberate indifference too close to
negligence while also transforming qualified immunity “from
a guarantee of immunity into a rule of pleading.” Anderson v.
Creighton, 483 U.S. 635, 639 (1987). And in transforming
qualified immunity into a rule of pleading, our approach risks
“destroy[ing] the balance that our cases strike between the




                               10
interests in vindication of citizens’ constitutional rights and in
public officials’ effective performance of their duties.” Id.
(internal quotation marks omitted).
       In short, after scrutinizing the entire complaint, I
conclude that aside from Schroeter’s guilty plea to reckless
endangerment, the remaining allegations in Kedra’s
complaint make out only a strong case of negligence. I do not
believe they would be sufficient, by themselves, to state a
claim that Schroeter acted with the deliberate indifference
required to shock the conscience.
                               C.
       To summarize, Kedra adequately pleaded deliberate
indifference, and therefore she alleged all four required
elements of a state created danger claim. Sanford, 456 F.3d at
304-05. Having adequately pleaded her constitutional claim,
Kedra has met the first requirement of the qualified immunity
analysis: conduct by an officer that violates a federal right.
Tolan, 134 S. Ct. at 1865 (2014). I arrive, then, at the second
element that must be shown in order to defeat Schroeter’s
claim of qualified immunity: that “the right in question was
clearly established at the time of the violation.” Id. at 1866. I
agree with the majority’s conclusion that the right at issue in
this case was clearly established—but again, based on
different reasoning.
       To be clearly established under qualified immunity’s
second prong, “a right must be sufficiently clear that every
reasonable official would have understood that what he is
doing violates that right.” Reichle, 132 U.S. at 2093 (internal
quotation marks and alterations omitted). “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




                               11
the unlawfulness must be apparent.” Anderson, 483 U.S. at
640 (internal citation omitted). “[A] case directly on point” is
not required, “but existing precedent must have placed the …
constitutional question beyond debate.” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011); see also Hope, 536 U.S. at 741
(“we [have] expressly rejected a requirement that previous
cases be fundamentally similar” or “materially similar”)
(internal quotation marks and citation omitted). The
touchstone is reasonableness: “[q]ualified immunity gives
government officials breathing room to make reasonable but
mistaken judgments about open legal questions. When
properly applied, it protects all but the plainly incompetent or
those who knowingly violate the law.” al-Kidd, 536 U.S. at
743 (internal quotation marks omitted).
        As the Supreme Court has explained, “the operation of
this standard”—that is, whether a right is clearly
established—“depends substantially upon the level of
generality at which the relevant legal rule is to be identified.”
Anderson, 483 U.S. at 639 (internal quotation marks omitted).
Therefore, the Court has repeatedly instructed us “not to
define clearly established law at a high level of generality,”
that “[t]he dispositive question is whether the violative nature
of particular conduct is clearly established,” and that our
inquiry into the clearly established prong “must be
undertaken in light of the specific context of the case, not as a
broad general proposition.” Mullenix v. Luna, 136 S. Ct. 305,
308 (2015) (per curiam) (internal quotation marks omitted).
       The majority defines the right at issue here as “an
individual’s right not to be subjected, defenseless, to a police
officer’s demonstration of the use of deadly force in a manner
contrary to all applicable safety protocols.” Maj. Op. at 40. I
would define the right more narrowly, and in accordance with
my analysis of the first qualified immunity prong in Section




                               12
I.A., as: a police officer’s right not to be subjected to a
firearms training in which the instructor acts with deliberate
indifference, that is, consciously disregards a known risk of
death or great bodily harm. Schroeter’s admitted deliberate
indifference is crucial, in my opinion, to the conclusion at the
first step of the analysis that a right was violated. See supra
Section I.A., B. Therefore, in order to narrowly define the
right in light of the particular conduct at issue, Mullenix, 136
S. Ct. at 308, I would include deliberate indifference in the
definition.
        The majority disagrees with this definition of the right,
saying that it conflates the first and second elements of the
qualified immunity analysis. Maj. Op. at 40-41 n.19. I am not
the first, however, to include a state of mind in the definition
of a right. See Grandstaff v. City of Borger, 767 F.2d 161,
167-68 (5th Cir. 1985) (holding it was clearly established that
the use of “deadly force, in conscious disregard of substantial
risk of harm to innocent parties,” was a constitutional due
process violation). Nor is it troublesome, as a general
proposition, that one element of a legal test overlaps with
another element of the same or a related test. Indeed, the first
requirement for defeating qualified immunity is redundant
with the four prongs of a state created danger claim, and there
is no shortage of other examples.3

       3
         See, e.g., Kosilek v. Spencer, 774 F.3d 63, 83 (1st
Cir. 2014) (“[W]e have recognized that the subjective
deliberate indifference inquiry may overlap with the objective
serious medical need determination ….”); Gen. Tel. Co. of
Sw. v. Falcon, 457 U.S. 147, 158 n.13 (1982) (“The
commonality and typicality requirements of [Federal Rule of
Civil Procedure] 23(a) tend to merge,” and both “also tend to
merge with the adequacy-of-representation requirement ….”).




                               13
        Given the unique facts of this case—namely,
Schroeter’s guilty plea—I believe it is appropriate to tether
the right in question to the standard of care he admitted he
breached. The majority’s approach, by contrast, suffers from
its focus on the violation of “all applicable safety protocols,”
which will inevitably lead to disputes over how many safety
protocols need to be violated for qualified immunity to be
forfeited. And those disputes, I predict, will devolve into a
negligence-type analysis, which precedent clearly forbids.
The majority’s definition of the right could prove fertile
ground for future plaintiffs seeking to lower the bar yet
further in § 1983 cases.
       Turning to whether the right as I define it was clearly
established, I conclude that in light of existing case law, a
reasonable person could not have believed that it was
consistent with Kedra’s substantive due process rights to
subject him to a firearms training at which the instructor was
deliberately indifferent to his safety. Therefore, the right was
clearly established.
       Unlike the majority, I do not read existing cases as
being “fundamentally” or “materially” similar to this one. See
Hope, 536 U.S. at 741. The lack of on-point precedent gives
me pause, because a case’s “present[ation] [of] a unique set of
facts and circumstances” can be “an important indication”
that the conduct at issue “did not violate a clearly established
right.” White, 137 S. Ct. at 552 (internal quotation marks
omitted). Nonetheless, I feel constrained to conclude that
Supreme Court and Circuit precedents have “clearly
established” the “violative nature,” Mullenix, 136 S. Ct. at
308, of conducting a firearms training with deliberate
indifference to a known risk.




                              14
       To begin with, the deliberate indifference standard was
clearly enunciated in the state created danger context more
than a decade ago and was clear at the time of Kedra’s death
in 2014. Sanford, 456 F.3d at 309 (ruling that “where
deliberation is possible and officials have the time to make
unhurried judgments, deliberate indifference is sufficient” to
shock the conscience); see also Phillips v. Cnty. of Allegheny,
515 F.3d 224, 241 (3d Cir. 2008). While our state created
danger cases are not factually similar to this one—they do not
involve police officers conducting firearms training—I cannot
see how any reasonable official could believe that acting with
deliberate indifference in the police firearms training context
would be consistent with trainees’ constitutional rights. A
reasonable officer could not be heard to say that although he
knew that 911 employees cannot release information from
their database in a deliberately indifferent manner, id. at 243,
he nevertheless thought it would comport with trainees’
substantive due process rights to conduct a firearms training
with deliberate indifference.
        We have reasoned, in the past, that deliberate
indifference is simply inconsistent with objectively
reasonable conduct. Beers-Capitol v. Whetzel, 256 F.3d 120,
142 n.15 (3d Cir. 2001) (reasonable defendant “could not
believe that her actions comported with clearly established
law while also believing that there is an excessive risk to the
plaintiffs and failing to adequately respond to that risk[;]
[c]onduct that is deliberately indifferent to an excessive risk
… cannot be objectively reasonable conduct”); Carter v. City
of Phila., 181 F.3d 339, 356 (3d Cir. 1999) (“If Carter
succeeds in establishing that the … defendants acted with
deliberate indifference to constitutional rights—as Carter
must in order to recover under section 1983—then a fortiori
their conduct was not objectively reasonable.”).




                              15
        The majority emphasizes the importance of Marrero-
Rodriguez v. San Juan, 677 F.3d 497 (1st Cir. 2012), to its
conclusion that the right at issue here was clearly established.
Maj. Op. at 43-44. Marrero-Rodriguez involves a police
trainer’s deliberate indifference toward a trainee, 677 F.3d at
502, but the case has important distinctions as well. There,
“dummy guns” were supposed to be used, id. at 500, while
here, Schroeter needed to use an actual gun in order to train
the other officers on its features. Also in Marrero-Rodriguez,
what the instructor was supposedly “training” the other
officers to do would have itself amounted to a gross violation
of the rights of criminal suspects. Id. at 502. There are no
such allegations here.
       The majority dismisses the materially differing facts in
Marrero-Rodriguez as a distinction without a difference. But
the fact that the instructor there brought a real gun to a
training meant to involve dummy weapons injected a level of
danger into the training that never would have existed absent
that deliberate act. Here, the training required a live weapon,
so the inherent risk was of a different order than the risk
involved in the Marrero-Rodriguez training. Kedra does not
allege that Schroeter’s conduct was anything other than a
mistake, however reckless. The same cannot be said for the
instructor in Marrero-Rodriguez, and that should make a
difference.
        Regardless, as I explain above, the Supreme Court’s
and our court’s precedents clearly establish the right in
question, even in the absence of directly on-point precedent.
It is therefore immaterial whether Marrero-Rodriguez may
have also put Schroeter on notice that his conduct was
violative of that right.




                              16
                              II.
       I am concerned by the impact that the breadth of the
majority’s decision could have on the law of qualified
immunity. I am equally troubled by the recent trajectory of
this Court’s jurisprudence. In my mind, we have gradually
expanded substantive due process protections to cases where
they should not apply by tortifying the Constitution and
chipping away at the standards necessary to show deliberate
indifference.
        The Due Process Clause of the Fourteenth Amendment
provides that “[n]o State shall … deprive any person of life,
liberty, or property without due process of law.” U.S. Const.
amend. XIV, § 1, cl. 2. Shortly after the Fourteenth
Amendment’s adoption, the Supreme Court analyzed the
meaning of the Due Process Clause and stated that the Clause
was “intended to secure the individual from the arbitrary
exercise of the powers of government, unrestrained by the
established principles of private right and distributive
justice.” Hurtado v. California, 110 U.S. 516, 527 (1884)
(quoting Bank of Columbia v. Okley, 17 U.S. (4 Wheat.) 235,
244 (1819)). Since then, the Supreme Court has explained
that “the Due Process Clause of the Fourteenth Amendment
was intended to prevent the government from abusing its
power,” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,
489 U.S. 189, 196 (1989) (internal quotation marks and
alterations omitted), but not to “transform every tort
committed by a state actor into a constitutional violation.” Id.
at 202; see also Lewis, 523 U.S. at 845 (“We have
emphasized time and again that the touchstone of due process
is protection of the individual against arbitrary action of
government ….”) (internal quotation marks omitted). The
Supreme Court has accordingly “emphasized that only the
most egregious official conduct can be said to be arbitrary in




                              17
the constitutional sense.” Id. at 846 (internal quotation marks
omitted).
        In assessing what behavior is egregious enough to state
a claim under the Due Process Clause, the Supreme Court has
“spoken of the cognizable level of executive abuse of power
as that which shocks the conscience” or “violates the
‘decencies of civilized conduct.’” Id. In so doing, it has
recognized that the Due Process Clause is “phrased as a
limitation on the State’s power to act, not as a guarantee of
certain minimal levels of safety.” DeShaney, 489 U.S. at 195.
But it has also recognized some limited exception to that rule.
In DeShaney, the Supreme Court noted that “when the State
takes a person into 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.” Id. at 199-200. DeShaney also left open the question
of whether a constitutional violation could occur absent a
custodial relationship when it stated: “[w]hile the State may
have been aware of the dangers that Joshua faced in the free
world, it played no part in their creation, nor did it render him
any more vulnerable to them.” Id. at 201.
        Relying on that dicta in DeShaney, several Circuits
recognized a state created danger theory for establishing a
constitutional claim under § 1983, and we joined them in
Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996). The Supreme
Court has yet to explicitly adopt the now widely-recognized
state created danger theory, and the Circuits have yet to
enforce a uniform approach to its application. But consistent
with the fact that the Due Process Clause was not meant to
constitutionalize state tort law, our state created danger theory
encompasses four elements that provide some insurance that
it protects the individual only from those abuses of power that
lie at the heart of the concept of due process. Since “liability




                               18
for negligently inflicted harm is categorically beneath the
threshold of constitutional due process,” Lewis, 523 U.S. at
849, the requirement that the government official act with a
degree of culpability that shocks the conscience is perhaps the
most critical element to providing that insurance. And
recognizing the importance of the culpability requirement,
our cases have frequently sought to evaluate the degree of
culpability required to prevail under our state created danger
theory.
       Unfortunately, because the rules of substantive due
process are not “subject to mechanical application in
unfamiliar territory,” id. at 850, we have, like the Supreme
Court, struggled with how to define culpability falling
between the intentional conduct that can sustain a due process
violation and the negligent conduct that cannot. In this regard,
the Supreme Court has offered that recklessness or gross
negligence may be actionable in some cases, but the only case
the Lewis court cited as establishing liability in that middle
range, City of Revere v. Massachusetts General Hospital, 463
U.S. 239 (1983), involved a pre-trial detainee who was in
government custody and therefore restrained from acting on
his own behalf. Because “when the State takes a person into
custody” it renders him unable to exercise ordinary
responsibility for his own welfare, such cases implicate a
unique context where “the Constitution imposes upon [the
State] a … duty to assume some responsibility for [that
person’s] safety and general well-being.” Deshaney, 489 U.S.
at 199-200. And consequently, Justices Scalia and Thomas
have asserted that the Supreme Court has “expressly left open
whether, in a context in which the individual has not been
deprived of the ability to care for himself in the relevant
respect, something less than intentional conduct, such as
recklessness or gross negligence, can ever constitute a




                              19
deprivation under the Due Process Clause.” Lewis, 523 U.S.
at 863 (Scalia, J., concurring in the judgment) (internal
quotation marks omitted).
        Despite the fact that the Supreme Court left this
question open, we have recognized such liability by defining
deliberate indifference as “appear[ing] to fall somewhere
between intent, which includes proceeding with knowledge
that the harm is substantially certain to occur and negligence,
which involves the mere unreasonable risk of harm to
another.” Morse, 132 F.3d at 910 n.10 (internal quotation
marks omitted). I question the validity of this definition.
Gross negligence and recklessness are cognizable under state
tort law, and the Supreme Court has “rejected claims that the
Due Process Clause should be interpreted to impose federal
duties that are analogous to those traditionally imposed by
state tort law.” Collins, 503 U.S at 128; see also Kingsley v.
Hendrickson, 135 S. Ct. 2466, 2479 (2015) (Scalia, J.,
dissenting).
        In my view, it is troubling how far we have expanded
substantive due process, a concept the Supreme Court has
been reluctant to expand. Collins, 503 U.S. at 125. Originally,
the Due Process Clause prevented only those government
actions that violate “those canons of decency and fairness
which express the notions of justice of English-speaking
peoples.” Rochin v. California, 342 U.S. 165, 169 (1952)
(internal quotation marks omitted). We took a second step by
fashioning a state created danger theory. Kneipp, 95 F.3d at
1211. We then took a third step, stating that there could be
liability in non-custodial situations for gross negligence. See,
e.g., Sanford, 456 F.3d at 310. The Supreme Court, however,
is still at step one. Given that our substantive due process
doctrine has gradually lowered the bar for bringing a state




                              20
created danger claim, it may be time for this full Court to
reexamine the doctrine.
                              III.
       Perhaps the full Court will revisit the qualified
immunity framework to reexamine whether it is consistent
with the history of the Due Process Clause. Perhaps the
Supreme Court will clarify the governing law by weighing in
on the state created danger theory before we expand this
substantive due process doctrine even further. In the
meantime, it is worth remembering:
      The people … may well prefer a system of liability
      which would place upon the State and its officials the
      responsibility for failure to act in situations such as the
      present one. They may create such a system, if they do
      not have it already, by changing the tort law of the
      State in accordance with the regular lawmaking
      process. But they should not have it thrust upon them
      by this Court’s expansion of the Due Process Clause of
      the Fourteenth Amendment.
DeShaney, 489 U.S. at 203. I offer this concurrence in the
hope that it might steer us toward a firmer commitment to this
principle.




                              21
