                                            PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                    _______________

                         No. 14-4640
                       _______________

        L.R., Parent and Natural Guardian of N.R., a minor

                                v.

         SCHOOL DISTRICT OF PHILADELPHIA;
     SCHOOL REFORM COMMISSION OF THE SCHOOL
              DISTRICT OF PHILADELPHIA;
    JAMES A. ROCCO, III, ESQ., as Administrator CTA of the
              Estate of Reginald M. Littlejohn,
                                Appellants
                     _______________

         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                   E.D. Pa. No. 2-14-cv-1787)
            District Judge: Honorable Jan E. DuBois
                        _______________

                    Argued February 11, 2016

    Before: FUENTES, KRAUSE, and ROTH, Circuit Judges


 Honorable Julio M. Fuentes assumed senior status on July
18, 2016.
                (Filed: September 6, 2016)


Kerri E. Chewning
Archer & Greiner, P.C.
One Centennial Square
33 East Euclid Avenue
Haddonfield, NJ 08033

Jeffrey M. Scott    [ARGUED]
Archer & Greiner, P.C.
1650 Market Street
One Liberty Place, 32nd Floor
Philadelphia, PA 19103
       Counsel for Appellants

Charles L. Becker [ARGUED]
Dominic C. Guerrini
Thomas R. Kline
Tracie L. Palmer
David C. Williams
Kline & Specter, P.C.
1525 Locust Street, 19th Floor
Philadelphia, PA 19102
       Counsel for Appellee
                     _______________

                       OPINION
                    _______________




                            2
FUENTES, Circuit Judge.

        Teachers not only educate our children, but also
provide them with sources of care and comfort outside the
home. Recognizing that the threat of civil liability might
discourage teachers and other public servants from taking on
such significant roles, courts have developed a doctrine of
qualified immunity that, in many instances, shields them from
civil lawsuits. But there are exceptions and this is one of
those cases.

       In January 2013, a teacher in the Philadelphia School
District allowed a kindergarten student to leave his classroom
with an adult who failed to identify herself. The adult
sexually assaulted the child later that day. In the early hours
of the next morning, a sanitation worker found the child in a
playground after hearing her cries. The child’s parent sued
the teacher, who claims he is immune from suit.

       We hold that the parent’s allegations sufficiently state
a constitutional violation of the young child’s clearly
established right to be free from exposure by her teacher to an
obvious danger. In short, we conclude that it is shocking to
the conscience that a kindergarten teacher would allow a child
in his care to leave his classroom with a complete stranger.
Accordingly, we will affirm the District Court’s denial of
qualified immunity.




                              3
I.     BACKGROUND

       A.     Factual Background

        Because this case comes to us on a motion to dismiss,
the allegations are taken from the complaint and are assumed
true for purposes of this appeal. On an ordinary school day in
January 2013, Christina Regusters entered W.C. Bryant
Elementary School in Philadelphia, Pennsylvania, where Jane
was enrolled as a kindergarten student.1 Regusters proceeded
directly to Jane’s classroom, where she encountered
Defendant Reginald Littlejohn, Jane’s teacher. Per
Philadelphia School District policy,2 Littlejohn asked
Regusters to produce identification and verification that Jane
had permission to leave school. Regusters failed to do so.
Despite this failure, Littlejohn allowed Jane to leave his
classroom with Regusters. Later that day, Regusters sexually
assaulted Jane off school premises, causing her significant
physical and emotional injuries.




1
  We will refer to the child as “Jane” throughout this opinion.
This name is fictitious and we use it for ease of reference.
2
  The complaint states that Philadelphia School District policy
provides that only the principal or his/her designee, the
assistant principal, or the teacher-in-charge may grant a
release of students during the school day. The policy also
states that (i) under no circumstances may a pre-kindergarten
through eighth grade student be released without a properly
identified adult, (ii) the adult’s identification must be checked
against school records, and (iii) the release must take place in
the school office. Compl. (J.A. Vol. II 58-67) ¶¶ 15-16.




                               4
       B.     Procedural Background

        Jane’s parent and natural guardian, L.R., filed this civil
rights lawsuit under 42 U.S.C. § 1983 against Reginald
Littlejohn in his individual capacity, the School District of
Philadelphia, and the School Reform Commission of the
School District of Philadelphia (collectively, the
“Defendants”). L.R. alleges that Littlejohn deprived Jane of
her Fourteenth Amendment rights under a state-created
danger theory. Specifically, L.R. alleges that by releasing her
daughter to an unidentified adult, Littlejohn created the
danger that resulted in Jane’s physical and emotional harm.
Defendants moved to dismiss under the Federal Rules of Civil
Procedure, arguing that the complaint does not allege a
constitutional violation and, even if it did, Littlejohn is
entitled to qualified immunity.3

       The District Court denied Defendants’ motion. It
explained that “ordinary common sense and experience
dictate that there is an inherent risk of harm in releasing a
five-year-old [child] to an adult stranger who has failed to
produce identification and authorization for release despite
being asked to do so.”4 For the reasons that follow, we will
affirm.5


3
  See Fed. R. Civ. P. 12(b)(6).
4
  L.R. v. Sch. Dist. of Phila., 60 F. Supp. 3d 584, 590 (E.D.
Pa. 2014) (internal quotation marks omitted).
5
  The District Court also held that L.R. sufficiently stated a
claim for municipal liability against the School District and
the School Reform Commission under a failure to train and
supervise theory. See id. at 599-601. Defendants’ appeal




                                5
II.    JURISDICTION AND STANDARD OF REVIEW

        The District Court had subject matter jurisdiction
under 28 U.S.C. § 1331. We exercise appellate jurisdiction
over this interlocutory appeal pursuant to the collateral order
doctrine. Under this doctrine, “a district court’s denial of a
claim of 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.”6 “This is so because qualified
immunity . . . is both a defense to liability and a limited
entitlement not to stand trial or face the other burdens of
litigation.”7 Here, the disputed issues are whether the
complaint sufficiently alleges a violation of a constitutional
right and whether that right was clearly established at the time
of the violation. Thus, appellate review is appropriate. Our
review is plenary.8

III.   DISCUSSION

       The primary purpose of qualified immunity is to shield
public officials “from undue interference with their duties and
from potentially disabling threats of liability.”9         This
immunity can be overcome, however, when public officials
violate clearly established constitutional rights of which a


concerns only the District Court’s denial of Littlejohn’s claim
of qualified immunity.
6
  Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
7
   Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (internal
quotation marks omitted).
8
  Atkinson v. Taylor, 316 F.3d 257, 261 (3d Cir. 2003).
9
  Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).




                               6
reasonable person would have been aware.10 In the words of
the Supreme Court, qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the
law.”11

       To resolve a claim of qualified immunity, courts
engage in a two-pronged inquiry: (1) whether the plaintiff
sufficiently alleged the violation of a constitutional right, and
(2) whether the right was “clearly established” at the time of
the official’s conduct.12 “[W]hether a particular complaint
sufficiently alleges a clearly established violation of law
cannot be decided in isolation from the facts pleaded.”13
Thus the sufficiency of L.R.’s pleading is both “inextricably
intertwined with” and “directly implicated by” Littlejohn’s
qualified immunity defense.14

       A.     Substantive Due Process Claim under the
              State-Created Danger Theory

       The threshold question in any § 1983 lawsuit is
whether the plaintiff has sufficiently alleged a deprivation of
a constitutional right. L.R.’s claim invokes the substantive
component of the Due Process Clause of the Fourteenth
Amendment, which “protects individual liberty against
certain government actions regardless of the fairness of the

10
   Id. at 818.
11
    Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (internal
quotation marks omitted).
12
    Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing
Saucier v. Katz, 533 U.S. 194, 201 (2001)).
13
   Iqbal, 556 U.S. at 673.
14
   Id. (internal quotation marks omitted).




                               7
procedures used to implement them.”15 In DeShaney v.
Winnebago County Department of Social Services,16 the
Supreme Court explained that “nothing in the language of the
Due Process Clause itself requires the State to protect the life,
liberty, and property of its citizens against invasion by private
actors.”17 Rather, the purpose of the Clause is “to protect the
people from the State, not to ensure that the State protect[s]
[the people] from each other.”18 Applying this principle, the
Court held that state social workers did not deprive four-year-
old Joshua DeShaney of substantive due process when they
failed to remove him from a physically abusive household,
despite their ongoing knowledge of suspected abuse by his
father.19 The Court held that, “[a]s a general matter . . . a
State’s failure to protect an individual against private violence
simply does not constitute a violation of the Due Process
Clause.”20 It suggested, however, that the result may have
been different had the State played a role in creating or
enhancing the danger to which Joshua was exposed.21

      Building off that concept, we and other circuits have
adopted a “state-created danger” exception to the general rule

15
   Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)
(internal quotation marks omitted).
16
   489 U.S. 189 (1989).
17
   Id. at 195.
18
   Id. at 196 (emphasis added).
19
   Id. at 201-02.
20
   Id. at 197.
21
   See id. at 201 (“While 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 do anything to render him any
more vulnerable to them.”).




                               8
that the Due Process Clause imposes no duty on states to
protect their citizens from private harm.22 In Bright v.
Westmoreland County,23 we clarified the elements necessary
to successfully plead a 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 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.24




22
   See Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996)
(“[W]e hold that the state-created danger theory is a viable
mechanism for establishing a constitutional claim under 42
U.S.C. § 1983.”).
23
   443 F.3d 276 (3d Cir. 2006).
24
   Id. at 281 (citations and internal quotation marks omitted).




                              9
       For the reasons set forth below, we hold that L.R. has
sufficiently alleged all four of these elements and has
therefore sufficiently pled a substantive due process violation.

              i.     Affirmative Use of Authority Creating
                     or Increasing Danger

      We begin with the fourth element, as it is typically the
most contested. This element asks whether the state’s
conduct created or increased the risk of danger to the plaintiff.
As we noted in Bright, “[i]t is misuse of state authority, rather
than a failure to use it, that can violate the Due Process
Clause.”25

       This element is often contested because of the inherent
difficulty in drawing a line between an affirmative act and a
failure to act.26 Often times there is no clear line to draw;

25
   Id. at 282.
26
   See, e.g., Morrow v. Balaski, 719 F.3d 160, 179 (3d Cir.
2013) (en banc) (“[M]erely restating the Defendants’ inaction
as an affirmative failure to act does not alter the passive
nature of the alleged conduct.”); Sanford v. Stiles, 456 F.3d
298, 312 (3d Cir. 2006) (per curiam) (“Sanford has attempted
to ‘recharacterize’ [the school guidance counselor’s] failures
as ‘affirmative actions.’ We believe that this case is more
about [her] failure to prevent Sanford’s death.”); D.R. by L.R.
v. Middle Bucks Area Vocational Technical Sch., 972 F.2d
1364, 1376 (3d Cir. 1992) (en banc) (“Accepting the
allegations as true, [namely], that one school defendant was
advised of the misconduct and apparently did not investigate,
they show [inaction] but they do not rise to the level of a
constitutional violation.”).




                               10
virtually any action may be characterized as a failure to take
some alternative action.27 For example, Defendants attempt
to reframe Littlejohn’s alleged actions as inactions, or
failures. They argue that Littlejohn’s failure to follow School
District policy, failure to obtain proper identification from
Regusters, and failure to obtain verification from Regusters
that Jane had been permitted to leave school are not
affirmative acts. This strategy is unavailing.

       Rather than approach this inquiry as a choice between
an act and an omission, we find it useful to first evaluate the
setting or the “status quo” of the environment before the
alleged act or omission occurred, and then to ask whether the
state actor’s exercise of authority resulted in a departure from
that status quo. This approach, which is not a new rule or
concept but rather a way to think about how to determine
whether this element has been satisfied, helps to clarify
whether the state actor’s conduct “created a danger” or
“rendered the citizen more vulnerable to danger than had the
state not acted at all.”28

       The setting here is a typical kindergarten classroom.
Children in this setting are closely supervised by their
teacher. Their freedom of movement is restricted. Indeed,
they are not likely to use the bathroom without permission,
much less wander unattended from the classroom. In the
classroom, the teacher acts as the gatekeeper for very young
children who are unable to make reasoned decisions about
when and with whom to leave the classroom. Viewed in this


27
     See Morrow, 719 F.3d at 198 (Fuentes, J., dissenting).
28
     Bright, 443 F.3d at 281.




                                11
light, Jane was safe in her classroom unless and until her
teacher, Littlejohn, permitted her to leave.

        We can therefore easily distinguish Littlejohn’s
conduct from the state actors’ conduct in DeShaney. The
Supreme Court’s focus in DeShaney was on the State’s failure
to remove Joshua a second time from a situation it had reason
to believe was dangerous, meaning the State’s decision to
leave Joshua with his father was a maintenance of the status
quo. Moreover, in responding to the argument that the State’s
action in previously intervening and then returning Joshua to
his father gave rise to an affirmative duty to protect and
remove him again, the Court further observed: “That the State
once took temporary custody of Joshua does not alter the
analysis, for when it returned him to his father’s custody, it
placed him in no worse position than that in which he would
have been had it not acted at all.”29 In other words, had the
State done nothing, Joshua would have been in the same
dangerous position. The setting here, by contrast, was a
kindergarten classroom where students presumably were safe
from outside dangers. When Littlejohn allowed Jane to leave
the classroom with an adult who failed to produce proper
identification or verification, he exposed Jane to a danger she
would not have otherwise encountered.

       We can also distinguish this case from our decision in
Morrow v. Balaski,30 where we declined to find a state-
created danger in a school setting. In Morrow, two high
school students sued their school for failing to protect them
from another student who was bullying them persistently.

29
     DeShaney, 489 U.S. at 201.
30
     719 F.3d 160.




                                  12
The school at one point temporarily suspended the bully but
then allowed her to return to school, contrary to a school
policy requiring expulsion of students adjudicated “guilty of a
crime.”31 We held that the school’s failure to enforce its own
disciplinary policy was not equivalent to an “affirmative
act.”32 Thus, Morrow paralleled DeShaney in that
maintenance of the status quo was insufficient to create
liability.

       This case is different. Littlejohn’s actions resulted in a
drastic change to the classroom status quo, not a maintenance
of a situation that was already dangerous. And unlike in
Morrow, the presence or absence of a school policy is largely
irrelevant to L.R.’s claim. Littlejohn’s actions in asking
Regusters for proper identification and verification, and then
permitting Jane to leave with Regusters despite her failure to
produce either, amounted to an affirmative misuse of his
authority as Jane’s teacher and “gatekeeper.”

        Defendants contend that there is no constitutional right
to have a school official intervene to prevent an unauthorized
person from removing a child from school. But this was not
just a failure to intervene. Under the facts as pled, Littlejohn
had the authority to release Jane from his classroom and used
it. By allowing Jane to leave his classroom with an
unidentified adult, Littlejohn “created or increased the risk [of
harm] itself.”33


31
   Id. at 178.
32
   Id.
33
   Id. at 186 (Ambro, J., concurring in part and dissenting in
part).




                               13
        We find clear parallels between this case and our
seminal state-created danger case, Kneipp v. Tedder.34 There,
police officers stopped a couple walking home from a tavern,
released the husband first to relieve the babysitter, and then
left the visibly intoxicated wife to walk home alone in the
cold. Police later discovered the wife unconscious at the
bottom of an embankment near her home. She suffered
permanent brain damage as a result of her exposure to the
cold. We concluded that the officers created a dangerous
situation or at least made the intoxicated woman more
vulnerable to danger. This was because the officers chose to
displace the caretaker of someone who was clearly unable to
care for herself. Having taken on responsibility for the
woman’s wellbeing, the officers thereafter abandoned it and,
in so doing, subjected a vulnerable individual to an obvious
risk of harm—walking home alone in the cold while highly
intoxicated.

        The dynamic of a kindergarten classroom is similar.
The state is responsible for the safety of very young children
unable to care for themselves. Indeed, it is a responsibility
the state undertakes when young children are left in its care.
When Littlejohn surrendered that responsibility by releasing
Jane to an unidentified adult, thereby terminating her access
to the school’s care, he affirmatively misused his authority
just as culpably as the officers in Kneipp misused theirs.

       Our decision in Horton v. Flenory35 is similarly
instructive. In that case, a police officer intervened in a
dispute between a night club owner and a crime suspect, then

34
     95 F.3d 1199.
35
     889 F.2d 454 (3d Cir. 1989).




                               14
allowed the night club owner to interrogate the suspect,
leading to the suspect’s death. We explained that the officer’s
action in delegating his authority to the night club owner was
“anything but passive,” as he “used his official status to
confirm that [the night club owner] was free to continue the
custodial interrogation” despite signs of physical
mistreatment.36 In both Horton and this case, the particular
responsibilities that were relinquished—interrogating
suspects and protecting the safety of kindergarteners—were
an integral part of the state actor’s job functions. In both
cases, the state actor handed over their responsibility to a
private actor who, under the circumstances, posed an obvious
risk of harm to the plaintiff. Such actions are an affirmative
misuse of state authority.

              ii.     Foreseeable and Fairly Direct Harm

       Next, we ask whether “the harm ultimately caused was
a foreseeable and a fairly direct result of the state’s actions.”37
L.R. alleges that Littlejohn “w[as] aware that releasing pupils
to unidentified and otherwise unverified adults would result
in harm to those pupils, including but not limited to sexual
assault.”38 Defendants counter that the complaint is devoid of
any facts that support the inference that Littlejohn could have
known of Regusters’ intent to harm Jane. That is not the
appropriate inquiry. Rather, the plaintiff must only “allege an
awareness on the part of the state actors that rises to the level
of actual knowledge or an awareness of risk that is

36
   Id. at 458.
37
   Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 908 (3d
Cir. 1997).
38
   Compl. ¶ 39.




                                15
sufficiently concrete to put the actors on notice of the
harm.”39 We think the risk of harm in releasing a five-year-
old child to a complete stranger was obvious.

       A comparison of Kneipp with our decision in Morse v.
Lower Merion School District40 illustrates this concept. In
Kneipp, we explained that a highly intoxicated woman was
“more likely to fall and injure herself if left unescorted than
someone who was not inebriated,”41 and we indicated that the
police officers’ “ordinary common sense and experience”
sufficiently informed them of this risk.42 By contrast, we held
in Morse that school officials could not have foreseen that
allowing construction workers to leave the school’s rear
entrance unlocked would result in the fatal shooting of a
teacher by a trespasser. We explained that there was no
allegation that the school was aware of the assailant or
anyone else posing a credible threat of violence to persons
inside the school. Rather, the only facts alleged that would
have alerted school officials to any danger were that there had
been “previous ‘security breaches’ by unnamed persons” and
the assailant had been seen loitering in the school area the
week before the shooting.43 This, we held, was not enough to


39
   Phillips v. Cty. of Allegheny, 515 F.3d 224, 238 (3d Cir.
2008) (emphasis added).
40
   132 F.3d 902.
41
   Kneipp, 95 F.3d at 1208.
42
   Phillips, 515 F.3d at 237 (citing Kneipp, 95 F.3d at 1208);
cf. Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989)
(noting the “inherent danger facing a woman left alone at
night in an unsafe area is a matter of common sense”).
43
   Morse, 132 F.3d at 908.




                              16
warn officials that a person “would enter the school in search
of a victim.”44

        Here, it was foreseeable that releasing a young child to
a stranger could result in harm to the child. This inherent risk
is not only a matter of experience as a teacher in charge of a
kindergarten classroom, but, as in Kneipp, it is also a matter
of common sense. Regardless of which of the many apparent
risks of harm—whether kidnapping, child pornography,
human trafficking, sexual assault or some other violation—
came to pass, Littlejohn knew, or should have known, about
the risk of his actions.

       We also conclude that the harm ultimately caused to
Jane was a fairly direct result of Littlejohn’s conduct. We
have explained that, although this inquiry is fact-specific, “a
distinction exists between harm that occurs to an identifiable
or discrete individual . . . and harm that occurs to a ‘random’
individual with no connection to the harm-causing party.”45
In Morse, we declined to find the school’s decision to allow
the back door to remain open to be the “catalyst for the
attack” on the teacher because “[t]he causation, if any, [was]
too attenuated.”46 Here, randomness and attenuation are not
in play. Littlejohn released Jane directly to the unidentified
adult who sexually assaulted her the same day. On the facts
as pled, Littlejohn’s actions were indeed the “catalyst for the
attack.”




44
   Id.
45
   Phillips, 515 F.3d at 239.
46
   Morse, 132 F.3d at 909-10.




                                17
              iii.   Conscience-Shocking Conduct

       We next consider whether Littlejohn’s actions “shock
the conscience.” The Supreme Court has emphasized that the
“touchstone of due process” is protection against arbitrary
government action.47 Government action is “arbitrary in the
constitutional sense”48 when it is “so egregious, so
outrageous, that it may fairly be said to shock the
contemporary conscience.”49

       The level of culpability required for behavior to shock
the conscience largely depends on the context in which the
action takes place. In a “hyperpressurized environment,”
such as a high-speed police chase, intent to harm is
required.50 But in situations “where deliberation is possible
and officials have the time to make ‘unhurried judgments,’
deliberate indifference is sufficient.”51 On the facts as pled,
the appropriate culpability standard here is deliberate
indifference, since there is nothing to indicate that Littlejohn
faced circumstances requiring him to make a quick decision.
We have defined deliberate indifference as requiring a
“conscious disregard of a substantial risk of serious harm.”52
That is, “deliberate indifference might exist without actual

47
    Cty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998)
(internal quotation marks omitted).
48
   Id. at 846 (quoting Collins, 503 U.S. at 129).
49
   Id. at 847 n.8.
50
   Sanford, 456 F.3d at 309.
51
   Id.
52
   Vargas v. City of Philadelphia, 783 F.3d 962, 973-74 (3d
Cir. 2015) (quoting Ziccardi v. City of Philadelphia, 288 F.3d
57, 66 (3d Cir. 2002) (internal quotation marks omitted)).




                              18
knowledge of a risk of harm when the risk is so obvious that
it should be known.”53

        As we have already explained, the risk of harm in
releasing a five-year-old child to an unidentified, unverified
adult is “so obvious” as to rise to the level of deliberate
indifference. The fact that there was a school policy in place
prohibiting the release of pre-kindergarten through eighth
grade students to an adult without proper documentation
tends to show that school officials were aware that releasing a
young child to a stranger is inherently dangerous. What is
more, whether or not that policy existed, the fact that
Littlejohn asked Regusters for her identification illustrates
that Littlejohn himself was indeed aware of the risk of harm
in releasing Jane to a stranger, even if he was unaware of
Regusters’ specific criminal intent. That he still allowed Jane
to leave despite Regusters’ failure to produce identification or
verification, we think, rises to conscience-shocking behavior.

        To support their contention that Littlejohn’s conduct
could not shock the conscience, Defendants direct us to Doe
ex rel. Magee v. Covington County School District,54 a Fifth
Circuit case with some factual similarity to this case. In Doe,
school employees on six separate occasions allowed a nine-
year-old student to be checked out from school by a man
claiming to be her father but who bore no relationship to her
and was not listed on her check-out form. On each occasion,
the man sexually assaulted the young student and then
returned her to school. The Fifth Circuit concluded that, even

53
   Phillips, 515 F.3d at 241 (quoting Sanford, 456 F.3d at
309).
54
   675 F.3d 849 (5th Cir. 2012) (en banc).




                              19
assuming it recognized a state-created danger theory (to date
it has not officially adopted this doctrine), the allegations
failed because the complaint did “not allege that the school
knew about an immediate danger to [the student’s] safety.”55
By contrast, we are comfortable concluding that Littlejohn’s
conduct in releasing Jane to an adult who failed to identify
herself demonstrated a “conscious disregard of a substantial
risk of serious harm.”56

              iv.    Foreseeable Victim

        The “foreseeable victim” element requires that some
sort of relationship exist between the state actor and the
plaintiff such that the plaintiff was a foreseeable victim of the
state actor’s conduct.57 This element is satisfied easily here.

55
   Id. at 866.
56
   Vargas, 783 F.3d at 973-74 (quoting Ziccardi, 288 F.3d at
66 (internal quotation marks omitted)).
57
   A “special relationship” is not required. Indeed, this is an
entirely separate theory on which to base a substantive due
process claim, applicable when “the State takes a person into
its custody and holds him there against his will.” Morrow,
719 F.3d at 167 (quoting DeShaney, 489 U.S. at 199-200). In
the public high school context, we have explained that
compulsory attendance laws and in loco parentis authority do
not give rise to a special relationship between schools and
their students. Id. at 171-72; Middle Bucks, 972 F.2d at 1371-
72. In Morrow, however, we left open the possibility that a
special relationship between a school and its students could
arise under certain “unique and narrow circumstances,” 719
F.3d at 171, as when a school locks classroom doors or
otherwise imposes limitations on a student’s “freedom to act




                               20
Jane was a member of the discrete class of kindergarten
children for whose benefit the School District’s release policy
had been instituted. In this sense, Jane was a foreseeable
victim of Littlejohn’s actions.

       For these reasons, we conclude that L.R. has
sufficiently alleged all the elements of a state-created danger
claim.

       B.     Whether the Right was Clearly Established

        Having concluded that L.R. has sufficiently alleged a
violation of her daughter’s substantive due process rights, we
next ask whether the right was clearly established at the time
of Littlejohn’s actions. We conclude it was. “A Government
official’s conduct violates clearly established law when, at the
time of the challenged conduct, ‘the contours of a right are
sufficiently clear’ that every ‘reasonable official would have
understood that what he is doing violates that right.’”58 The


on his own behalf.” Id. at 181 (quoting DeShaney, 489 U.S.
at 200). We have never addressed the special relationship
theory in the context of a school’s youngest and most
vulnerable students. Although we decline to do so here, as
L.R. does not raise this claim, we note that, at some point, the
age and/or dependency of certain students in combination
with restraints a school may place on its students may indeed
forge a “special relationship.” See, e.g., Ingraham v. Wright,
430 U.S. 651, 670 (1977) (“Except perhaps when very young,
the child is not physically restrained from leaving school
during school hours . . . .” (emphasis added)).
58
   al-Kidd, 563 U.S. at 741 (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)).




                              21
ultimate question is whether the state of the law when the
offense occurred gave Littlejohn “fair warning that [his]
alleged treatment of [Jane] was unconstitutional.”59 We look
first to applicable Supreme Court precedent. “Even if none
exists, it may be possible that a ‘robust consensus of cases of
persuasive authority’ in the Court[s] of Appeals could clearly
establish a right for purposes of qualified immunity.”60

       Defining the right at issue is critical to this inquiry.
We must frame the right “in light of the specific context of
the case, not as a broad general proposition.”61 “The
dispositive question is whether the violative nature of
particular conduct is clearly established.”62 “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.”63 The Supreme Court has explained that,
“[a]lthough earlier cases involving fundamentally similar
facts can provide especially strong support for a conclusion
that the law is clearly established, they are not necessary to
such a finding.”64 Indeed, the Court has made clear that
“officials can still be on notice that their conduct violates
established law even in novel factual circumstances.”65

59
   Hope v. Pelzer, 536 U.S. 730, 741 (2002).
60
   Mammaro v. N.J. Div. of Child Prot. & Permanency, 814
F.3d 164, 169 (3d Cir. 2016) (quoting Taylor v. Barkes, 135
S. Ct. 2042, 2044 (2015) (per curiam)).
61
   Saucier, 533 U.S. at 201.
62
   Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)
(internal quotation marks omitted).
63
   Anderson, 483 U.S. at 640.
64
   Hope, 536 U.S. at 741 (internal quotation marks omitted).
65
   Id. (citing United States v. Lanier, 520 U.S. 259 (1997)).




                              22
        We stressed this concept in Estate of Lagano v. Bergen
County Prosecutor’s Office.66 There too the plaintiff filed a
§ 1983 lawsuit under the state-created danger theory,
claiming that police officers’ improper disclosure of Lagano’s
status as a confidential informant ultimately led to his murder.
After defining the right at issue as “a confidential informant’s
constitutional right to nondisclosure,” the district court
explained that there was no binding precedent acknowledging
such a right in the state-created danger context and,
accordingly, it granted the officers’ qualified immunity.67 We
vacated that decision. We explained that the district court’s
“unduly narrow construction of the right at issue” missed the
mark, and exact congruence between prior cases and the
current case was not required.68 Rather, the proper inquiry
was “whether the facts averred by the Estate fall within the
elements of the state-created danger theory, and whether it
would be clear to a reasonable officer that the alleged
disclosure was unlawful under the circumstances.”69

       Defendants argue that the District Court defined Jane’s
right at the highest level of generality: “[Jane’s] Fourteenth
Amendment right to bodily integrity . . . under the state-
created danger theory.”70 We agree that this definition is too

66
   769 F.3d 850 (3d Cir. 2014).
67
   Id. at 859.
68
   Id.
69
   Id. (internal quotation marks omitted); see, e.g., Mammaro,
814 F.3d at 169 (explaining that, in defining the right at issue,
the court must “consider the substantive due process right of
Mammaro as a parent in light of the specific allegations in her
amended complaint”).
70
   L.R., 60 F. Supp. 3d at 596.




                               23
broad. Individuals indeed have a broad substantive due
process right to be free from “unjustified intrusions on
personal security.”71 For example, the Supreme Court has
described this “historic liberty interest” as “encompass[ing]
freedom from bodily restraint and punishment.”72 In light of
the specific allegations in the complaint, however, the right at
issue here is an individual’s right to not be removed from a
safe environment and placed into one in which it is clear that
harm is likely to occur, particularly when the individual may,
due to youth or other factors, be especially vulnerable to the
risk of harm. Framed in this way, and surveying both our
case law and that of our sister circuits, we conclude that this
right was clearly established at the time of Littlejohn’s
actions. Although there is no case that directly mirrors the
facts here, as in Estate of Lagano, there are sufficiently
analogous cases that should have placed a reasonable official
in Littlejohn’s position on notice that his actions were
unlawful.

       Our decision in Kneipp is key. There, the officers’
decision to separate an intoxicated woman from her caretaker
at the time, her husband, and the subsequent abandoning of
the woman in her vulnerable state, led us to conclude that the
officers could be liable for creating or enhancing the danger
to which the woman was exposed. Similarly, in Rivas v. City
of Passaic,73 we held that emergency medical technicians
who told police officers that a man in the midst of a seizure
had assaulted them, but failed to tell them about the man’s
medical condition, could have created or enhanced the danger

71
   Ingraham, 430 U.S. at 673.
72
   Id. at 673-74.
73
   365 F.3d 181 (3d Cir. 2004).




                              24
that ultimately led to his death.74 We explained that, at the
time of the defendants’ actions, it was clearly established that
“state actors may not abandon a private citizen in a dangerous
situation, provided that the state actors are aware of the risk
of serious harm and are partly responsible for creating the
opportunity for that harm to happen.”75

        Other circuits have come to similar conclusions under
analogous circumstances. For example, in White v.
Rochford,76 the Seventh Circuit held that police officers who
“abandon children and leave them in health-endangering
situations after having arrested their custodian and thereby
deprived them of adult protection” violate the children’s
“right to be free from unjustified intrusions upon physical and
emotional well-being.”77 There, officers arrested the
children’s uncle for drag racing, then left the children with the
immobilized car on a major highway on a cold evening.78
The concurring judge explained that arresting the uncle
removed the children’s only protection against danger, and by
not providing any alternative protection, the officers
unnecessarily exposed the children to obvious hazards.79 As
the Seventh Circuit later articulated in Bowers v. DeVito,80
“[i]f the state puts a [person] in a position of danger from
private persons and then fails to protect him, it will not be
heard to say that its role was merely passive; it is as much an

74
   Id. at 194-95.
75
   Id. at 200.
76
   592 F.2d 381 (7th Cir. 1979).
77
   Id. at 382, 386.
78
   Id. at 382.
79
   Id. at 387-88 (Tone, J., concurring).
80
   686 F.2d 616 (7th Cir. 1982).




                               25
active tortfeasor as if it had thrown him into a snake pit.”81
Similarly, in Wood v. Ostrander,82 the Ninth Circuit held that
a police officer who left a female passenger stranded late at
night in a high-crime area after arresting the driver violated
her constitutional right to personal security.83 The court
explained that “the inherent danger facing a woman left alone
at night in an unsafe area is a matter of common sense.”84

        This notion is not limited to circumstances in which
police officers abandon private citizens in dangerous
situations. In Currier v. Doran,85 the Tenth Circuit held that
the plaintiff sufficiently pled a state-created danger claim
when state social workers failed to investigate numerous
allegations of child abuse and recommended that the
children’s abusive father assume legal custody. 86 In denying

81
   Id. at 618.
82
   879 F.2d 583 (9th Cir. 1989).
83
   Id. at 590 (“The fact that [the officer] arrested [the driver],
impounded his car, and apparently stranded Wood in a high-
crime area at 2:30 a.m. distinguishes Wood from the general
public and triggers a duty of the police to afford her some
measure of peace and safety.”).
84
   Id.
85
   242 F.3d 905 (10th Cir. 2001).
86
   Id. at 919-20. In distinguishing these circumstances from
DeShaney, the Tenth Circuit explained that, “[i]n this case,
Anthony and Latasha were removed from their mother and
placed with their father. In DeShaney, Joshua was removed
from his father and then returned to his father.” Id. at 918.
Thus, “Anthony and Latasha would not have been exposed to
the dangers from their father but for the affirmative acts of the
state; the same cannot be said for Joshua in DeShaney.” Id.




                               26
qualified immunity, the court concluded that a reasonable
state official at the time would have known that “reckless,
conscience shocking conduct that altered the status quo and
placed a child at substantial risk of serious, immediate, and
proximate harm was unconstitutional.”87 The Tenth Circuit
had previously held that the parents of a special education
student who committed suicide established a state-created
danger claim when school officials sent the student home
after he was acting up in school, despite knowing that he was
having suicidal thoughts, he had access to firearms in his
house, and his parents were not home.88

       Against this backdrop, we conclude that the state of
the law in 2013 was sufficiently clear to put Littlejohn on
notice that permitting a kindergarten student to leave his
classroom with an unidentified adult could lead to a
deprivation of that student’s substantive due process rights.89

87
   Id. at 924.
88
   Armijo by and through Chavez v. Wagon Mound Pub. Sch.,
159 F.3d 1253, 1264 (10th Cir. 1998).
89
    See also Frances-Colon v. Ramirez, 107 F.3d 62, 63-64
(1st Cir. 1997) (explaining that a substantive due process
violation occurs when a state actor “affirmatively acts to
increase the threat of harm to the claimant or affirmatively
prevents the individual from receiving assistance”); Pinder v.
Johnson, 54 F.3d 1169, 1177 (4th Cir. 1995) (“[S]tate actors
may not disclaim liability when they themselves throw others
to the lions.”); Sciotto v. Marple Newton Sch. Dist., 81 F.
Supp. 2d 559, 570 (E.D. Pa. 1999) (concluding that “it was
clearly established . . . that a student enjoy[s] a constitutional
right to be free from school officials’ deliberate indifference
to, or acts that increase the risk of serious injury from[,]




                               27
IV.   CONCLUSION

       State-created danger cases often involve unsettling
facts and this case is no different. Even so, our resolution of
the legal issues is straightforward. Exposing a young child to
an obvious danger is the quintessential example of when
qualified immunity should not shield a public official from
suit. Accordingly, the order of the District Court is affirmed.




unjustified invasions of bodily integrity perpetrated by third
parties”).




                              28
