                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-2008

Walter v. Pike Cty PA
Precedential or Non-Precedential: Precedential

Docket No. 06-5034




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                              PRECEDENTIAL

UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT


  Nos. 06-5034, 06-5144, and 07-1668


 SUSAN L. WALTER, Individually and
   as Administratrix of the Estate of
     Michael F. Walter, deceased;
       MICHAEL V. WALTER;
   LIANNA WALTER, a minor, and
     through Susan L. Walter, per
      parent and natural guardian;
    DONNA WALTER, a minor, by
     and through Susan L. Walter,
    her parent and natural guardian;
     ERIK WALTER, a minor, by
     and through Susan L. Walter,
    his parent and natural guardian;
   DANIEL WALTER, a minor, by
     and through Susan L. Walter,
    his parent and natural guardian;
    KASEY WALTER, a minor, by
     and through Susan L. Walter,
    her parent and natural guardian;
   DARIAN WALTER, a minor, by
     and through Susan L. Walter,
    her parent and natural guardian;
     DALE WALTER, a minor, by
     and through Susan L. Walter,
          his parent and natural guardian;
          DEVYN WALTER, a minor, by
            and through Susan L. Walter,
          her parent and natural guardian;
         CORINNE WALTER, a minor, by
            and through Susan L. Walter,
          her parent and natural guardian;
    SEAN MICHAEL FRANCIS WALTER, a minor,
          by and through Susan L. Walter,
           his parent and natural guardian

                      v.

  PIKE COUNTY, PENNSYLVANIA, AND THE PIKE
COUNTY DISTRICT ATTORNEY’S OFFICE; WESTFALL
 TOWNSHIP, PENNSYLVANIA, AND THE WESTFALL
   TOWNSHIP POLICE DEPARTMENT; TIMOTHY J.
   MITCHELL, INDIVIDUALLY AND AS CHIEF OF
        POLICE OF WESTFALL TOWNSHIP, AND
  SEPARATELY AS COUNTY DETECTIVE FOR PIKE
COUNTY DISTRICT ATTORNEY’S OFFICE; DOUGLAS
    J. JACOBS, ESQUIRE, INDIVIDUALLY AND AS
        DISTRICT ATTORNEY OF PIKE COUNTY,
    PENNSYLVANIA; BRUCE DeSARRO, ESQUIRE,
   INDIVIDUALLY AND AS ASSISTANT DISTRICT
ATTORNEY OF PIKE COUNTY, PENNSYLVANIA; AND
  WILLIAM TRACY TODD, INDIVIDUALLY AND AS
   CHIEF COUNTY DETECTIVE OF PIKE COUNTY,
                  PENNSYLVANIA




                      2
      Douglas J. Jacobs; Bruce DeSarro,

                     Appellants in No. 06-5034

             Patti-Lynn Mitchell,

                     Appellant in No. 06-5144

    Susan L. Walter, Michael V. Walter,
       Lianna Walter, Donna Walter,
        Erik Walter, Daniel Walter,
       Kasey Walter, Darian Walter,
        Dale Walter, Devyn Walter,
Corinne Walter, Sean Michael Francis Walter,


                    Appellants in No. 07-1668




On Appeal from the United States District Court
    for the Middle District of Pennsylvania
            (D.C. No. 03-cv-01690)
 District Judge: Honorable A. Richard Caputo


            Argued April 16, 2008




                      3
 Before: AMBRO, FISHER and MICHEL,* Circuit Judges.

                 (Filed: September 18, 2008)

John A. Orlando (Argued)
Mary E. Dixon
White and Williams LLP
1800 One Liberty Place
Philadelphia, PA 19103
      Attorneys for Susan L. Walter, et al.

Michael J. Donohue (Argued)
Kreder Brooks Hailstone LLP
220 Penn Ave., Suite 200
Scranton, PA 18503

Susan B. Ayers, Esq.
David M. Maselli, Esq.
Wright & O’Donnell
15 East Ridge Pike
Suite 570
Conshohocken, PA 19428
       Attorney for Patti-Lynn Mitchell
       Executrix of the Estate of Timothy Mitchell


Gerard J. Geiger (Argued)

   *
    The Honorable Paul R. Michel, Chief Judge of the United
States Court of Appeals for the Federal Circuit, sitting by
designation.

                              4
Newman, Williams, Mishkin, Corveleyn,
  Wolfe & Fareri, P.C.
712 Monroe Street
P.O. Box 511
Stroudsburg, PA 18360
      Attorney for Douglas J. Jacobs and Bruce DeSarro



                  OPINION OF THE COURT


MICHEL, Chief Circuit Judge.

       In 2001, in Westfall Township, Pike County,
Pennsylvania, Joe Stacy sexually assaulted Michael Walter’s
daughters. Walter then participated in Stacy’s arrest, alongside
Westfall Township Chief of Police Timothy Mitchell, and with
the approval of the Pike County District Attorney’s office.
Stacy was charged and released on bail. In 2002, shortly before
Stacy was to stand trial for the sexual assault, with Walter set to
be a witness against him, Stacy began stalking Police Chief
Mitchell, unbeknownst to Walter. Stacy then murdered Walter
in broad daylight at Walter’s place of business.

       In 2003, Walter’s widow and children sued Mitchell,
District Attorney Douglas Jacobs, and Assistant District
Attorney Bruce DeSarro, alleging, inter alia, that they violated
Michael Walter’s right to substantive due process (1) by
involving Walter in Stacy’s 2001 arrest and confession, and (2)

                                5
by failing to warn Walter in 2002 when Stacy began stalking
Mitchell. Mitchell moved for summary judgment on the basis
of qualified immunity, and DeSarro and Jacobs moved for
summary judgment on the basis of both qualified and absolute
(prosecutorial) immunity. In 2006, Mitchell died, and the
District Court ruled on these summary judgment motions, (1)
denying absolute immunity to DeSarro and Jacobs, (2) granting
qualified immunity to DeSarro and Jacobs for their failure to
warn Walter in 2002, (3) denying qualified immunity to DeSarro
and Jacobs for their involvement in the 2001 arrest of Stacy, and
(4) denying qualified immunity to Mitchell for either the 2001
arrest or the 2002 failure to warn.

        DeSarro, and Jacobs, and Mitchell’s estate now appeal
from the District Court’s partial denial of immunity (which is
appealable under the collateral order doctrine), and the Walters
cross-appeal from the District Court’s partial grant of immunity
and summary judgment. For the reasons that follow, we will
affirm the District Court’s ruling that DeSarro and Jacobs are
entitled to qualified immunity for their failure to warn Walter in
2002. We will reverse the District Court’s rulings that DeSarro
and Jacobs are not entitled to qualified immunity for their
involvement in the 2001 arrest of Stacy, and that Mitchell is not
entitled to qualified immunity for either the 2001 arrest of Stacy
or the 2002 failure to warn Walter. Because we will hold that
Mitchell, DeSarro and Jacobs are entitled to qualified immunity
for the events of 2001 and 2002, we will remand to the District
Court with instructions to grant judgment against the Walters’


                                6
substantive due process claim on this basis, and we will decline
to reach DeSarro’s and Jacobs’ claim to absolute immunity.

                     I. BACKGROUND

      A. Joe Stacy Assaults Michael Walter’s Children

       Michael Walter lived with his wife Susan and their ten
children in Westfall Township. Joe Stacy also lived in Westfall
Township with his wife Agnes. Michael Walter knew Joe Stacy
through the Westfall Township Planning Board, but did not
know that Stacy was a convicted felon who had served six years
in prison for manslaughter and had later been prosecuted for
another gun-related incident. In August of 2001, Mr. and Mrs.
Walter took a weekend trip out of state, leaving three of their
young daughters in the care of the Stacys. When the Walters
returned, their daughters told Mrs. Walter that they had been
sexually assaulted by Joe Stacy.

       The Walters called the police. Police Chief Mitchell,
who was a member of the Pike County Child Abuse Task Force,
met with Mr. and Mrs. Walter at their home on August 14, 2001.
Mitchell told the Walters about Stacy’s criminal record, and the
Walters decided to press criminal charges for the sexual assault.
The parties dispute whether or not Mitchell promised police
protection to the Walters on August 14, 2001, and whether the
Walters’ decision to press charges was based in part on a
promise of protection. But in either event, once the Walters had


                               7
decided to proceed with criminal charges, Mitchell and assistant
district attorney DeSarro interviewed the Walters’ daughters,
and the police obtained an arrest warrant for Stacy and a search
warrant for Stacy’s home.

       Soon thereafter, Mitchell and DeSarro met again with the
Walters to discuss a plan for arresting Stacy. At base, the plan
was for Michael Walter to lure Stacy over to the Walters’ house,
where Mitchell would then arrest him. But the parties dispute
the motivation for this plan, the exact details of the plan, and
who had notice of which details when.

        The Walters allege in their Amended Complaint that the
plan was formulated by Mitchell, DeSarro, Jacobs, and Pike
County detective William Tracy Todd, and that the plan called
not only for Michael Walter to lure Stacy away from Stacy’s
own house (where the police were afraid Stacy would be able to
start a gun battle with arresting officers), but also for Walter to
extract a confession from Stacy before he was arrested (so that
Stacy could be prosecuted on the basis of the confession, sparing
the Walters’ daughters from having to testify against Stacy).
The Walters allege that Mitchell “directed” Michael Walter to
invite Stacy to the Walters’ home.1


  1
    However, when asked at deposition about who first came up
with the idea of luring Stacy to the Walters’ house, Mrs. Walter
testified that it was Michael Walter who suggested the idea, and
that Mitchell said he would have to get the plan approved by the

                                8
        In contrast, Mitchell claims that he did not foist a plan on
the Walters; rather, Michael Walter spontaneously volunteered
to lure Stacy over, and Mitchell agreed but did not intend to use
Walter to extract a confession from Stacy. DeSarro, for his part,
claims that although he approved of having Walter invite Stacy
to the Walters’ house, he did not know about or approve of
using Walter to extract a confession from Stacy. And Jacobs
claims that he did not know about the plan at all until after the
fact.

     B. Michael Walter Participates in Joe Stacy’s Arrest

       The parties essentially agree about how the arrest actually
proceeded. On August 16, 2001, Stacy drove to the Walters’
house, where he was met by Mitchell and Michael Walter.
Mitchell talked to Stacy for some time, and then Stacy sought to
speak to Walter. Mitchell asked Walter if he would speak to
Stacy, and Walter agreed. Mitchell then left Stacy alone with
Walter for a few minutes, and Stacy made incriminating
statements to Walter about the sexual assault. When Mitchell
returned, Stacy made incriminating statements to Mitchell, who
administered Miranda warnings and placed Stacy under arrest.
Stacy protested that Walter did not want Stacy arrested, and
asked Mitchell to check. Mitchell then asked Walter, in earshot
of Stacy, whether Walter really wanted Mitchell to arrest Stacy.
Walter confirmed that he did, and Mitchell placed Stacy into


District Attorney’s Office. Walter Dep. at 120.

                                 9
custody.

        The police then executed their search warrant for Stacy’s
home, finding a huge cache of weapons and ammunition, and
the police re-arrested Stacy and charged him with illegal
possession of firearms. A few days later, on August 21, 2001,
Michael Walter wrote to District Justice Charles Lieberman to
request that Stacy be remanded pending trial instead of released
on bail. Walter’s letter explained that he felt that Stacy was “a
risk to my family and the community” and that there was “no
guarantee of protection for my wife and ten children while I am
at work.” But the judge released Stacy on bail, on the
conditions that Stacy stay away from the Walters, seek
psychiatric help, and refrain from possessing firearms.

           C. Stacy Stalks Mitchell and Murders Walter

       Stacy’s trial for sexual assault of Walter’s daughters was
scheduled for July of 2002. The Walters allege that, as the trial
approached, Stacy’s behavior became increasingly menacing
and threatening towards Mitchell, Jacobs, and Walter. For
example, in January of 2002, Michael Walter received a prank
call which he attributed to Stacy. Susan Walter also saw a man
she thought looked like Stacy riding a bicycle on her street.
Neither incident was ever confirmed to be attributable to Stacy,
however.

       In April of 2002, Stacy made a pre-trial motion to


                               10
suppress his August 16, 2001 confession, arguing that it resulted
from a plan “to secure a confession through deception,” which
Stacy called a “trap designed by Officer Mitchell and Mr.
Walter.” Outside of court, Stacy called Mitchell repeatedly and
in June of 2002 asked a local real-estate agent for Mitchell’s
home address. Mitchell told the real-estate agent to tell Stacy
that Mitchell could be found at Mitchell’s office at a certain time
every day, and on July 1, 2002, Mitchell observed Stacy sitting
in a car outside Mitchell’s office at the given time. Mitchell
arranged with DeSarro and Jacobs for police protection the next
day in order to catch Stacy stalking him, and the Walters allege
that Jacobs also arranged for protection for himself, including at
his private law practice. But Stacy did not reappear on July 2,
2002. Mitchell and DeSarro sought to revoke Stacy’s bail,
citing Stacy’s appearance at Mitchell’s office the previous day,
but the judge found that there were no grounds to have Stacy
remanded.

       The next day, July 3, 2002, Mitchell took leave from his
job and left the vicinity of Pike County. The Walters allege that
Mitchell was instructed to leave for his own protection, but
Mitchell testified that he already had a vacation scheduled for
that time and left work less than a day ahead of schedule.
Meanwhile, Jacobs and DeSarro discussed whether or not to tell
the Walters about Stacy’s behavior toward Mitchell, and decided
against it. DeSarro testified that if Stacy “was going to do
something that was improper one way or another, it was going
to be toward Detective Mitchell, and we had no reason to


                                11
believe [against] anyone else, at least in my mind.” DeSarro
also testified that he asked the state police to increase their
patrol of the Walters’ street on the weekend before Stacy’s trial,
but the Walters contend that there is no evidence corroborating
that testimony.

        On Friday, July 5, 2002, the last weekday before Stacy’s
trial was scheduled to begin, Stacy drove to Walter’s place of
employment at the Port Jervis auto mall in Port Jervis, New
York, outside the jurisdiction of the Westfall Township Police
and Pike County District Attorney’s Office. According to
Walter’s coworker, Stacy entered the auto dealership and waited
for a few minutes while Walter worked with a customer. When
Walter was done with the customer, Stacy shot Walter in the
groin and head, killing him. Stacy had written in a note to his
wife, dated two days before the shooting, that he “hope[d] to get
done what I believe is the best to do–someone has to pay for
setting me up . . . .”

                   D. The Walters File Suit

       On September 25, 2003, after Stacy pleaded guilty to
murdering Michael Walter and was sentenced under a plea
agreement, the Walters filed a Complaint against Mitchell,
DeSarro, Jacobs, Todd, Westfall Township, the Westfall
Township Police Department, Pike County, and the Pike County
District Attorney’s Office, alleging violations of due process
under 42 U.S.C. § 1983, and wrongful death and survival claims


                               12
under Pennsylvania state law. The Walters filed an Amended
Complaint on October 30, 2003, and the defendants filed
motions to dismiss between October and December of 2003.

       On August 20, 2004, the District Court dismissed the
Walters’ state-law claims for wrongful death and survival, their
claim for punitive damages against Westfall Township and Pike
County, and their due process claim against the Westfall
Township Police Department. The District Court also held that
DeSarro and Jacobs were entitled to absolute immunity for their
decisions regarding the re-arrest of Stacy or revocation of his
bail, but were not entitled to absolute immunity for their acts
pertaining to the investigation of Stacy, and that the Pike County
District Attorney’s Office was not subject to liability under 42
U.S.C. § 1983 for its prosecutorial acts.

       On July 15, 2005, the defendants made various motions
for summary judgment on the Walters’ remaining claims. On
August 13, 2006, while those motions were still under
submission, Mitchell died. The District Court ruled on the
summary judgment motions on November 29, 2006. Walter v.
Pike County, 465 F. Supp. 2d 409 (M.D. Pa. 2006) (“Walter”).
Specifically, the District Court (1) granted summary judgment
to Westfall Township, Pike County, and the Pike County
District Attorney’s Office on all outstanding claims, on the basis
of municipal immunity, id. at 424-25; (2) granted summary
judgment to Mitchell, DeSarro, and Jacobs on the Walters’
procedural due process claim, id. at 422-24; (3) denied summary


                               13
judgment to Mitchell, DeSarro, and Jacobs on the merits of
Walters’ substantive due process claim, id. at 417-22; (4) denied
Mitchell’s motion for summary judgment on the basis of
qualified immunity, id. at 426-38; denied DeSarro’s and Jacobs’
motion for summary judgment on the basis of absolute
immunity, id. at 425-46; and (5) granted in-part and denied in-
part DeSarro’s and Jacobs’ motion for summary judgment on
the basis of qualified immunity, holding that DeSarro and
Jacobs were entitled to qualified immunity “as to their failure to
warn the Walter family of the threat posed by Joseph Stacy in
the period leading up to the murder of Michael Walter,” but
were not entitled to qualified immunity “as to their involvement
in the elicitation of the confession from Joseph Stacy on August
16, 2001.” Id. at 429.

                     E. The Parties Appeal

       On December 9, 2006, DeSarro and Jacobs filed a timely
notice of appeal from the District Court’s denial of their motions
for summary judgment on the basis of qualified and absolute
immunity. On December 21, 2006, in light of Mitchell’s death,
the District Court granted a motion to substitute Patti-Lynn
Mitchell in her representative capacity as the Executrix of the
Estate of Timothy Mitchell, and that same day Mitchell’s estate
filed a timely notice of appeal from the denial of Mitchell’s
motion for summary judgment based on qualified immunity. On
December 20, 2006, the Walters moved in the District Court for
entry of partial final judgment pursuant to Fed. R. Civ. P. 54(b),


                               14
or in the alternative for certification of the District Court’s
summary judgment order for interlocutory appeal under 28
U.S.C. § 1292(b), so that they could appeal the District Court’s
ruling that DeSarro and Jacobs were entitled to qualified
immunity as to their failure to warn the Walters.

        On January 17, 2007, the District Court denied the
Walters’ motion for partial final judgment, but certified its
November 29, 2006 summary judgment order for interlocutory
appeal, writing that “the issue of whether District Attorney
Defendants Douglas J. Jacobs and Bruce DeSarro are entitled to
qualified immunity as to (A) their participation in the elicitation
of a confession from Joseph Stacy on August 16, 2001, and (B)
their failure to warn Michael Walter of the threat posed by Mr.
Stacy in the period leading up to Mr. Walter’s murder involves
a controlling question of law as to which there is substantial
ground for difference of opinion, and [] an immediate appeal
from the order may materially advance the ultimate termination
of the litigation.” Walter v. Pike County et al., W.D. Pa. case
no. 3:03-cv-01690-ARC, Docket No. 118. We granted the
Walters’ petition for interlocutory appeal on March 1, 2007, and
the Walters filed a timely notice of appeal the next day. Shortly
thereafter, we ordered that the three appeals be consolidated.




                                15
                       II. DISCUSSION

           A. Jurisdiction and Standard of Review

       Because all three of these consolidated appeals come to
us before the District Court has entered a final judgment in the
case, we will begin with the issue of appellate jurisdiction.

                 1. The Defendants’ Appeals

       Mitchell, DeSarro and Jacobs appeal from the denial of
summary judgment. The Supreme Court has explained that
appeal gives us “a power of review, not one of intervention,”
and as long as a matter remains “open, unfinished or
inconclusive, there may be no intrusion by appeal.” Cohen v.
Benefit Indus. Loan Corp., 337 U.S. 541, 546 (1949). However,
the Court has also identified a “small class” of decisions that,
although short of final judgment on a claim or cause of action,
“finally determine claims of right separable from, and collateral
to, rights asserted in the action, too important to be denied
review and too independent of the cause itself to require that
appellate consideration be deferred until the whole case is
adjudicated.” Id.

      Decisions denying absolute or qualified immunity–such
as the decisions appealed here by Mitchell, DeSarro, and
Jacobs–can fall within this “small class,” because their appellate
consideration cannot be deferred until final judgment. “[T]he


                               16
essence of absolute immunity is its possessor’s entitlement not
to have to answer for his conduct in a civil damages action.”
Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). Qualified
immunity is also an “entitlement not to stand trial or face the
other burdens of litigation,” but is “conditioned on the resolution
of the essentially legal question whether the conduct of which
the plaintiff complains violated clearly established law.” Id. at
427. When either immunity is asserted in a district court, “it is
effectively lost if a case is erroneously permitted to go to trial,”
and the district court’s denial of immunity is “effectively
unreviewable on appeal from a final judgment.” Id. Therefore
a district court’s denial of a claim of absolute or qualified
immunity, “to the extent that it turns on an issue of law, is an
appealable ‘final decision’ within the meaning of 28 U.S.C. §
1291 notwithstanding the absence of a final judgment.” Id. at
530; Light v. Haws, 472 F.3d 74, 76 (3d Cir. 2007).

        The Supreme Court has clarified that the scope of our
review is limited, because “the collateral order doctrine does not
permit an appeal from an order denying a motion for summary
judgment if the issue raised is ‘whether or not the evidence in
the pretrial record [is] sufficient to show a genuine issue of fact
for trial.’” Ziccardi v. City of Phila., 288 F.3d 57, 61 (3d Cir.
2002) (quoting Johnson v. Jones, 515 U.S. 304, 307 (1995)).
Therefore “we lack jurisdiction to consider whether the district
court correctly identified the set of facts that the summary
judgment record is sufficient to prove; but we possess
jurisdiction to review whether the set of facts identified by the


                                17
district court” supports a claim beyond the bounds of the
immunity at issue–in the case of qualified immunity, whether
that set of facts is “sufficient to establish a violation of a clearly
established constitutional right.” Id. If there are minor gaps in
the District Court’s factual recitation, “we can ‘determine what
facts the district court, in the light most favorable to the
nonmoving party, likely assumed.’” Rivas v. City of Passaic,
365 F.3d 181, 196 n.10 (3d Cir. 2004) (quoting Johnson, 515
U.S. at 319). And while our review here is somewhat
“analogous to [the context of] a 12(b)(6) motion, where we
would not evaluate the underlying evidence to support the
plaintiff’s claims,” Atkinson v. Taylor, 316 F.3d 257, 261 n.4
(3d Cir. 2003), we still apply the standard for summary
judgment, and will “construe the facts in the light most
favorable to the plaintiffs.” Rivas, 365 F.3d at 201 (Ambro, J.,
concurring in part).

                     2. The Walters’ Appeal

         The Walters appeal from the District Court’s partial grant
of summary judgment regarding qualified immunity, which by
itself is not a “final decision” within the meaning of 28 U.S.C.
§ 1291. See, e.g., Coleman v. Parkman, 349 F.3d 534, 537 (8th
Cir. 2003) (“the collateral order doctrine does not apply . . .
when a party complains that the district court should not have
granted summary judgment based on qualified immunity”).
However, we have jurisdiction over the Walters’ appeal as
certified by the District Court and accepted by us under 28


                                 18
U.S.C. § 1292(b). The scope of our review of the Walters’
appeal is not limited directly by the Johnson line of cases. See
Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 204 (1996) (in
appeals certified under section 1292(b), “the courts of appeals
[may] exercise jurisdiction over any question that is included
within the order that contains the controlling question of law
identified by the district court”). But because the Walters appeal
from the grant of summary judgment against them, our standard
of review is essentially the same as it is for the appeals of
Mitchell, DeSarro and Jacobs–we will construe the facts in the
light most favorable to the Walters, and will determine whether,
on those facts, DeSarro and Jacobs are entitled to qualified
immunity. See, e.g., Egolf v. Witmer, 526 F.3d 104, 106-107
(3d Cir. 2008) (appeal from grant of summary judgment based
on qualified immunity) (“we will accept the facts as determined
by the District Court, construing them in a light most favorable
to the party that is claiming a constitutional violation”).

                    B. Qualified Immunity

        We now turn to the applicability of qualified immunity,
an issue raised in all three appeals. Qualified immunity, as the
Supreme Court has explained, is the principle that “government
officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine


                               19
whether this type of immunity applies, we engage in a multi-step
inquiry. “First, we must ask whether the conduct alleged by the
plaintiff violated a clearly established principle of constitutional
or statutory law. If so, then we go on to ask whether the
unlawfulness of the action would have been apparent to an
objectively reasonable official.” Showers v. Spangler, 182 F.3d
165, 171-172 (3d Cir. 1999) (internal citation omitted); see also
Rouse v. Plantier, 182 F.3d 192, 196-197 (3d Cir. 1999)
(three-step inquiry) (“(1) whether the plaintiffs alleged a
violation of their constitutional rights; (2) whether the right
alleged to have been violated was clearly established in the
existing law at the time of the violation; and (3) whether a
reasonable official knew or should have known that the alleged
action violated the plaintiffs’ rights”).

        Whether this inquiry is couched in two or three stages,
the first or “threshold question” is this: “Taken in the light most
favorable to the party asserting the injury, do the facts alleged
show the [official’s] conduct violated a constitutional right?”
Saucier v. Katz, 533 U.S. 194, 201 (2001). Here, the Walters
allege that Mitchell, DeSarro, and Jacobs deprived Michael
Walter of his right to substantive due process under the
Fourteenth Amendment to the Constitution. The District Court
held that the facts, taken in the light most favorable to the
Walters, support this claim under the theory of state-created
danger. We disagree with the District Court, and on this basis
we will hold that qualified immunity is applicable here as to all
defendants and events at issue.


                                20
                   1. State-Created Danger

        The state-created danger doctrine–developed by a
number of Circuit Courts of Appeal but not yet formally
recognized by the Supreme Court–is an exception to the rule
that “the Due Process Clauses generally confer no affirmative
right to governmental aid, even where such aid may be
necessary to secure life, liberty, or property interests of which
the government itself may not deprive the individual.”
Deshaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S.
189, 196 (1989). In other words, even where a plaintiff suffers
harm at the hands of a non-governmental actor, the government
may be liable because “the government has a constitutional duty
to protect a person against injuries inflicted by a third-party
when it affirmatively places the person in a position of danger
the person would not otherwise have faced.” Kamara v. AG of
the United States, 420 F.3d 202, 216 (3d Cir. 2005). In our
Circuit, there are four “essential elements of a meritorious
‘state-created danger’ claim:

       (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


                               21
               a foreseeable victim of the defendant’s
               acts, or a member of a discrete class of
               persons subjected to the potential harm
               brought about by the state’s actions, as
               opposed to a member of the public in
               general; and

       (4)     a state actor affirmatively used his or her
               authority in a way that created a danger to
               the citizen or that rendered the citizen
               more vulnerable to danger than had the
               state not acted at all.”

Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.
2006), cert. denied, 127 S. Ct. 1483 (2007).

        The District Court held that genuine issues of material
fact exist as to each of these four elements, and that therefore the
Walters meet the “threshold question” in the qualified immunity
analysis. Walter, 465 F. Supp. 2d at 418-22, 427. We agree that
the third element is met–as a participant in Stacy’s arrest,
Michael Walter was in a discrete class of persons more likely to
be targeted by Stacy than was a member of the public in general.
And we may assume without deciding that the first element,
foreseeability of the harm, is met as well. But we conclude that
the District Court erred in holding the second and fourth
elements of the state-created danger test satisfied in this case.
In particular, we hold that no reasonably jury could find that


                                22
Mitchell, DeSarro, and Jacobs acted with conscience-shocking
culpability in planning and effecting Stacy’s arrest and
confession, and we hold that the failure to warn the Walters in
2002 about Stacy’s behavior cannot be deemed an affirmative
use of authority sufficient to predicate liability.

      a. Stacy’s Arrest Does Not Shock the Conscience

       As the District Court recognized, “[t]he exact degree of
wrongfulness necessary to reach the ‘conscience-shocking’ level
depends upon the circumstances of a particular case,” Miller v.
City of Phila., 174 F.3d 368, 375 (3d Cir. 1999), and depends in
particular on “the extent to which a state actor is required to act
under pressure.” Sanford v. Stiles, 456 F.3d 298, 301 (3d Cir.
2006). “In a ‘hyperpressurized environment,’ an intent to cause
harm is usually required,” while “in cases where deliberation is
possible and officials have the time to make ‘unhurried
judgments,’ deliberate indifference is sufficient.” Id. at 309. In
the middle ground, or “circumstances involving something less
urgent than a ‘split-second’ decision but more urgent than an
‘unhurried judgment,’” there is a mid-level standard that
requires gross negligence and arbitrariness–the state actor must
“consciously disregard[] a great risk of serious harm.” Id. at 308
(internal citation omitted).

       Here, the District Court held that the mid-level
culpability standard should apply to the circumstances of
Stacy’s arrest at the Walters’ house in 2001, because “Mitchell


                                23
was forced on-the-spot to make a decision whether to allow
[Stacy to talk to Walter] and potentially gain a confession (or
alternatively be forced to break up a fist-fight), or disallow it
and likely not gain a confession (and potentially hamper Stacy’s
prosecution).” Walter, 465 F. Supp. 2d at 420.2 We agree that
the mid-level culpability standard is appropriate for Mitchell’s
actions at the Walters’ house, and we hold that no reasonable
jury could find it met.3 First and foremost, Mitchell asked


   2
    Implicit in the District Court’s holding is its determination
that–contrary to the Walters’ allegations in the Amended
Complaint and their argument on appeal–Mitchell did not plan
ahead of time to involve Walter in the process of extracting a
confession from Stacy (and, by implication, neither did DeSarro
or Jacobs). To the extent the Walters’ appeal gives us
jurisdiction to review this factual determination by the District
Court–because the Walters appeal from the grant of summary
judgment–we affirm that the evidence does not support a finding
that Mitchell, DeSarro, or Jacobs planned ahead of time to have
Michael Walter personally extract a confession from Stacy.
Mitchell testified that he did not so intend, and the Walters do
not point to any testimony or other evidence contradicting him
on this point. See Mitchell Dep. at 120 (“Q: Did the plan
involve Mr. Walter conducting any of the interrogation? A:
Never”).
  3
    We note that the District Court’s opinion on this point is not
clear. After discussing the applicable standard of culpability for
the day of Stacy’s arrest, the District Court moved directly to the
events of 2002, and held that a jury could find the defendants

                                24
Walter if he was willing to talk to Stacy, and only allowed the
conversation once Walter agreed. Second, even assuming that
Mitchell’s decision involved a great risk to Walter’s safety, the
facts as articulated by the District Court do not show that
Mitchell consciously disregarded that risk, but rather that he
weighed it against the possible benefits that could result,
including a stronger case against Stacy. Thus, while Mitchell’s
decision was clearly unfortunate, and may have been
unreasonable under the circumstances, it was at most highly
negligent.

        We also hold that DeSarro and Jacobs did not act with the
culpability required by the state-created danger doctrine in the
timeframe of Stacy’s arrest. Even assuming that both DeSarro
and Jacobs approved the plan to have Michael Walter lure Stacy
out to be arrested, and even assuming that this approval was the
result of unhurried judgment, such that the lowest standard of
conscience-shocking culpability applies, no reasonable jury
could find that DeSarro and Jacobs acted with deliberate
indifference to Michael Walter’s safety. Rather, DeSarro and
Jacobs had to balance the risks of arresting Stacy at the Walters’
house against the risks of arresting him at his own house, where
they believed (rightly, as it turned out) that Stacy had an arsenal
of weapons at his disposal.




were deliberately indifferent to Michael Walter’s safety in that
later timeframe. See Walter, 465 F. Supp. 2d at 421.

                                25
        In this regard our case is analogous to Matican v. City of
New York, recently decided by the Second Circuit. 524 F.3d
151 (2d Cir. 2008). In Matican, the plaintiff participated in a
sting to help police arrest a suspected drug dealer. Matican set
up a drug buy with the dealer, and when the dealer arrived,
Matican identified his car so that the police could search it and
arrest him. Id. at 153-54. After being released on bail, the
dealer found Matican on the street and slashed his face with a
box cutter. Id. at 154. Matican sued the police, alleging that
“the officers executed the sting operation in such a way that [the
drug dealer] learned that Matican had set him up.” Matican v.
City of New York, 424 F. Supp. 2d 497, 505 (S.D.N.Y. 2006).
In affirming that this police conduct did not shock the
conscience, the Second Circuit observed that the officers
designing the sting “had two serious competing obligations:
Matican’s safety and their own,” and they could reasonably have
concluded that “the arrest of a potentially violent drug dealer
demanded” the protocol used even though it “might jeopardize
the informant’s identity in the future.” Matican, 524 F.3d at
159.

        In our case, as was the Second Circuit in Matican, we
“are loath to dictate to the police how best to protect themselves
and the public, especially when our ruling could be taken to
require officers to use riskier methods than their professional
judgment demands.” Id. Given that DeSarro and Jacobs did not
intend for Walter to interrogate Stacy, but only for Walter to
invite him over to the Walters’ house on a pretext, we hold that


                               26
their approval of the arrest plan was at most negligent, and does
not shock the conscience.

    b. Failure to Warn The Walters Does Not Constitute
                Affirmative Use of Authority

        We also hold that Mitchell, DeSarro, and Jacobs are
entitled to qualified immunity for their failure to warn the
Walters in 2002 about Stacy’s behavior toward Mitchell,
because a state actor’s failure to warn about the likelihood of a
private act of violence–even a highly culpable failure to
warn–cannot itself predicate liability. Rather, “under the fourth
element of a state-created danger claim, ‘liability . . . is
predicated upon the states’ affirmative acts which work to the
plaintiffs’ detriments in terms of exposure to danger,’” and we
“have never found a state-created danger claim to be meritorious
without an allegation and subsequent showing that state
authority was affirmatively exercised.” Bright, 443 F.3d at 282
(quoting D.R. by L.R. v. Middle Bucks Area Vo. Tech. School,
972 F.2d 1364, 1374 (3d Cir. 1992) (en banc) (emphasis added
by Bright court)).

       While “the line between action and inaction may not
always be clear,” id., here the Walters’ allegations about the
period leading up to Stacy’s July, 2002 trial undoubtedly fall on
the side of inaction. The Walters allege in their Amended
Complaint that after Stacy began exhibiting threatening
behavior, Mitchell, DeSarro, and Jacobs made conscious


                               27
decisions not to re-arrest Stacy, not to seek revocation of his
bail, and not to warn Michael Walter or arrange protection for
him, and that those decisions shock the conscience.4 We have
squarely held that “failing to more expeditiously seek someone’s
detention,” and failing to arrest someone who poses a threat, are
not themselves affirmative uses of authority within the meaning
of the state-created danger doctrine. Bright, 443 F.3d at 284;
Burella v. City of Phila., 501 F.3d 134, 147 (3d Cir. 2007). We
have also held that a state actor’s assurance to a plaintiff that he
had “nothing to worry about and that he [was] fine,” when in
fact the plaintiff was quite ill and required emergency care, did
not amount to an affirmative use of state authority because it did
not restrain the plaintiff from acting on his own behalf to obtain
private assistance. Ye v. United States, 484 F.3d 634, 641 (3d
Cir. 2007); id. at 642 (“assurances of well-being are not
‘affirmative’ acts within the meaning of the fourth element of a
state-created danger claim”). If a state-created danger claim
cannot be predicated on a failure to arrest, neither can it be
predicated on a failure to provide protection. See, e.g., Bright,
443 F.3d at 284 (“mere ‘failure to protect an individual against
private violence’ does not violate the Due Process Clause”
(quoting Deshaney, 489 U.S. at 197)). And if an assurance of
well-being despite the presence of a threat is not a sufficiently


    4
     We note that the District Court found that Mitchell and
DeSarro did in fact seek to have Stacy’s bail revoked, without
success, just before Stacy murdered Michael Walter. Walter, 465
F. Supp. 2d at 414.

                                28
affirmative act, neither is the mere failure to warn of a threat.

        In holding that Mitchell, DeSarro, and Jacobs are entitled
to qualified immunity for the events of 2002, we recognize that
those events did not occur in a vacuum, and that the threat posed
by Stacy in 2002 was likely due in part to the circumstances of
his arrest in 2001, including the actions taken by the defendants
at that time. But because those earlier actions were not taken
with the required level of culpability, they cannot predicate a
state-created danger claim. Indeed, our caselaw firmly supports
the requirement that defendants act with culpability. Compare
Phillips v. County of Allegheny, 515 F.3d 224, 241 (3d Cir.
2008) (“the complaint alleges that [defendants] were aware that
Michalski was distraught over his break up with Ferderbar and
yet they assisted him in getting confidential information on
Ferderbar . . . .[thus] the complaint does sufficiently allege facts
that these defendants . . . were deliberately indifferent in
providing Michalski more confidential information” (emphases
added)) and Rivas v. City of Passaic, 365 F.3d at 196 (“If [the
defendants] misrepresented the assault, not only did they
abdicate their duty to render medical assistance, but they placed
Mr. Rivas in greater danger by falsely accusing him of acting
violently,” and “[a] jury could find . . . that such conduct shocks
the conscience” (emphases added)) with Bennett v. Phila., 499
F.3d 281, 289 (3d Cir. Pa. 2007) (“Maiden did not perform the
duties vis-a-vis Porchia that were incumbent upon a dedicated
social worker. Although we believe Maiden’s actions (or more
accurately, inactions) were beyond the pale, we conclude that in


                                29
essence the [plaintiff’s] argument is no more than another effort
to circumvent the state-created danger doctrine. We are not free
to do that.” (emphasis added)) and Burella, 501 F.3d at 147-148
(“Jill Burella contends that the officers’ ‘continual refusal to
enforce the court order and follow state law requiring Officer
Burella’s arrest, together with their false direction that “there
was nothing they could do,” as well as overall inadequate
intervention were affirmative acts which together increased the
likelihood of harm,’” but “it is apparent that what she actually
contends is that the officers failed to act at all . . . ,” and “[t]hat
failure, while deeply troubling and unquestionably tragic, does
not give rise to a cognizable state-created danger claim.”
(emphasis added)).

        Here, the District Court held that a jury could reasonably
find that the defendants affirmatively used their authority in
2001, by “allowing Michael Walter to become involved in
eliciting a confession from Joseph Stacy,” Walter, 465 F. Supp.
2d at 422, and could reasonably find that the defendants were
deliberately indifferent in 2002 in their “failure to warn the
Walter family of Joseph Stacy’s menacing behavior . . . .” Id. at
421. But for the reasons we have articulated above, these
findings would not amount to a constitutional violation–they
would not establish that the defendants committed a culpable
act, only that they acted in 2001 and then, months later, shocked
the conscience through inaction. See, e.g., Kaucher, 455 F.3d
at 435 (affirming grant of summary judgment for defendants
because plaintiffs “have not alleged an affirmative, culpable act


                                  30
on the part of defendants sufficient to implicate the state created
danger doctrine” (emphasis added)); Bright, 443 F.3d at 284
(rejecting plaintiff’s argument where plaintiff “seeks to bring
the law enforcement delay within the scope of the state-created
danger doctrine by pointing to an affirmative action of the state
which preceded it”); Leidy v. Borough of Glenolden, 277 F.
Supp. 2d 547, 560, 565 (E.D. Pa. 2003) (Even though “a jury
could conclude that Police Chief Cooke’s supine, bureaucratic
inaction constituted conscience-shocking deliberate
indifference,” state-created danger claim was rejected because
“the wrongs of which plaintiffs complain is that the State did not
do enough to protect them . . . .” (emphasis added)), aff’d 117
Fed. Appx. 176 (3d Cir. 2004).

       Because the Walters cannot establish a constitutional
violation, we need not move beyond this threshold question in
the qualified-immunity analysis. See Saucier, 533 U.S. at 201;
Ye, 484 F.3d at 643 n.6 (“As there was no constitutional tort, we
need not reach the question of whether the law was clearly
established . . . .”). Further, because we hold that all three
defendants are entitled to summary judgment on the basis of
qualified immunity, we need not decide whether DeSarro and
Jacobs are entitled to absolute immunity.

                         III. Conclusion

       For the foregoing reasons, we affirm the decision of the
District Court that DeSarro and Jacobs are entitled to qualified


                                31
immunity for the events of 2002 preceding Michael Walter’s
murder. We reverse the decisions of the District Court that
DeSarro and Jacobs are not entitled to qualified immunity for
their role in the 2001 arrest of Joe Stacy, and that Mitchell is not
entitled to qualified immunity for his role in the 2001 arrest or
for the events of 2002. We hold that Mitchell, DeSarro, and
Jacobs are entitled to qualified immunity for all events at issue
in these appeals, and we remand to the District Court with
instructions to grant judgment against the Walters’ substantive
due process claim on this basis, as well as for any other further
proceedings necessary and consistent with this opinion (which,
we recognize, might consist only of entering final judgment).




                                32
