                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-18-1996

Kneipp v. Tedder
Precedential or Non-Precedential:

Docket 95-2044




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"Kneipp v. Tedder" (1996). 1996 Decisions. Paper 77.
http://digitalcommons.law.villanova.edu/thirdcircuit_1996/77


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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                                No. 95-2044
                                ___________

         SAMANTHA KNEIPP, an incompetent person by; RONALD A.
         CUSACK, SR.; ROSANNE M. CUSACK, Individually and as
         Guardians; ALEXANDER AUGUST DALMISANO, A Minor

                                        Appellants

                          vs.

         WESLEY TEDDER, Individually and in his Official
         Capacity; JOHN DOE AND OTHERS, Individually and in
         their official capacities; CITY OF PHILADELPHIA
                           ___________

          Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                   (D.C. Civ. No. 95-cv-00129)
                           ___________

                              Argued
                           June 3, 1996
          Before: BECKER and MANSMANN, Circuit Judges,
                  and BROTMAN, District Judge.*

                    (Filed September 18, 1996)
                           ___________

Howard K. Trubman, Esquire (ARGUED)
Suite 400
21 South 12th Street
Philadelphia, PA 19107

  COUNSEL FOR APPELLANT

Michael F. Eichert, Esquire (ARGUED)
 Chief Deputy City Solicitor
Marie C. Lasota, Esquire
  Assistant City Solicitor
Office of City Solicitor
1600 Arch Street
8th Floor
Philadelphia, PA 19103-2081

  COUNSEL FOR APPELLEES TEDDER AND CITY

*        Honorable Stanley S. Brotman of the United States
District Court for the District of New Jersey, sitting by
designation.
                           ___________

                       OPINION OF THE COURT
                            __________

MANSMANN, Circuit Judge.
         In a civil rights complaint brought against the City of
Philadelphia and certain police officers, the parents and legal
guardians of Samantha Kneipp allege that late one January evening
when Kneipp, in an obvious state of severe inebriation, was
attempting to return on foot to her nearby apartment, the police
officers stopped her and sent her on alone.
         We hold that, if proven, the facts alleged will sustain
a prima facie case of a violation of Kneipp's Fourteenth
Amendment substantive due process right and her liberty interest
in personal security under the theory that city police officers
increased the risk of harm to Kneipp which ultimately resulted in
the severe damages she sustained. In so holding, we adopt the
"state-created danger" theory as a viable mechanism for
establishing a constitutional violation under 42 U.S.C. § 1983.
On remand, the municipal liability claims against the City should
be reexamined by the district court in light of the appropriate
legal standard.

I.
         The events leading to the tragedy that befell Samantha
Kneipp began in the late evening of January 23, 1993. Samantha
and her husband Joseph were returning on foot from a night of
drinking at a tavern in Bucks County, Pennsylvania. According
to Joseph, Samantha was visibly intoxicated--she smelled of
urine, staggered when she walked and, at times, was unable to
walk without assistance. Joseph testified that he had to carry
Samantha a portion of the way home.
         Shortly after midnight, now January 24, 1993,
Philadelphia Police Officer Wesley Tedder stopped the Kneipps for
causing a disturbance on the highway. At this point, the
Kneipps were only one-third of a block from their home. Unable
to stand by herself, Samantha was leaning on Officer Tedder's
car. Officer Tedder questioned Samantha and Joseph separately;
he stated in his deposition that he smelled alcohol on Samantha
and found both of them to be intoxicated. He gave Samantha
instructions to go stand somewhere, which she did not follow.
Joseph told Officer Tedder that he just wanted to get his wife
into their apartment.
         Shortly after Officer Tedder stopped the Kneipps, three
other police officers arrived separately at the scene and
positioned themselves across the street from Officer Tedder.
Joseph left Officer Tedder and crossed over to the other side of
the street where the police cars were situated. Joseph told one
of the officers that he had a babysitter watching his son and
that he was supposed to be home by now. Joseph then asked the
officer if he could go home, to which the officer replied, "Yeah,
sure." When Joseph left to walk home, Samantha was leaning on
the front of a police car in the presence of several police
officers. Joseph testified that he assumed that because Samantha
was drunk, the police officers were going to take her either to
the hospital or to the police station. His thoughts at the time
were that Samantha should not be left alone in her inebriated
state and that the police officers would take care of her, so he
proceeded home without her. Officer Tedder, however, sent
Samantha home alone; she never reached her apartment building.
         When his wife did not return to their apartment, Joseph
went out to look for her. He saw a police car parked in a
Sunoco station not far from his apartment building. As Joseph
approached the car, he discovered Officer Tedder inside, and
asked him if he had locked up Samantha or had taken her to the
hospital. According to Joseph, Officer Tedder told him "to get
out of here before he locked [him] up." Because of a previous
experience with the Philadelphia police, Joseph took Officer
Tedder's remark seriously and left. Joseph decided to continue
looking for Samantha, and as he proceeded in the direction of a
neighborhood convenience store, he thought he saw someone
resembling Samantha, dressed in similar clothing, getting into an
orange car. Because of Samantha's previous infidelity, Joseph
thought that if it were Samantha, she was cheating on him again
and would return when she was done. Joseph was never certain,
however, that the woman he saw entering the car was Samantha.
Joseph decided to forego his search and returned home.
         At approximately 1:51 a.m., Officer Francis Healy
responded to a radio call reporting that an individual was found
unconscious at the bottom of an embankment next to a parking lot
at the shopping plaza across the street from the Kneipps' home.
The unconscious individual was Samantha Kneipp. Joseph was
awakened around 4:00 a.m. by Officer Healy, who informed him that
Samantha had fallen and was in the hospital.
         As a result of her exposure to the cold, Samantha
suffered hypothermia, which caused a condition known as anoxia.
Consequently, the anoxia resulted in permanent brain damage
impairing many basic body functions.
         Samantha's legal guardians instituted this civil rights
action under 42 U.S.C. § 1983 against the City of Philadelphia
and several police officers, alleging that the police officers
were aware of Samantha's intoxication and "the potential for her
to suffer harm because of her profoundly impaired faculties." By
voluntarily assuming responsibility for her protection when they
told Joseph he could leave, it was alleged that the officers
affirmatively created a danger and increased the risk that
Samantha might be injured when they later abandoned her. It is
further alleged that the police conduct made Samantha "more
vulnerable" [by] . . . "interfer[ing] with the efforts of Joseph
[ ] to assist his wife to safety." Because the police officers
acted with "deliberate or reckless indifference, callous
disregard, or in such an arbitrary or abusive manner so as to
shock the conscience," the legal guardians maintained that
Samantha was deprived of her right to substantive due process and
her liberty interest in personal security in violation of the
Fourteenth Amendment of the United States Constitution.
         In addition, the legal guardians contended that the
City of Philadelphia, by acquiescing in the longstanding policy,
custom, or practice of not posting "activity credits" for taking
intoxicated pedestrians into custody, and by failing to
adequately train its police officers in the proper care of
intoxicated persons, acted with "deliberate or reckless
indifference, callous disregard, or in an arbitrary and abusive
manner so as to shock the conscience," thereby also violating
Samantha's right to substantive due process and her liberty
interest in personal security.
         In granting the defendants' motion for summary
judgment, the district court found that the legal guardians had
failed to prove a constitutional violation under either the
"special relationship" test or the state-created danger theory.
The court also denied a motion for reconsideration.
         The legal guardians filed a timely notice of appeal
from the order of the district court. We have jurisdiction
pursuant to 28 U.S.C. § 1291; we exercise de novo review of the
district court's grant of summary judgment. Ideal Dairy Farms,
supra; Antol v. Perry, 82 F.3d 1291, 1294 (3d Cir. 1996).

                               II.
         We begin our analysis with a discussion of the
requirements for establishing a constitutional claim under 42
U.S.C. § 1983. The pertinent language of section 1983 states:
         Every person who, under color of any statute,
         ordinance, regulation, custom, or usage, of
         any State or Territory or the District of
         Columbia, subjects, or causes to be
         subjected, any citizen of the United States
         or other person within the jurisdiction
         thereof to the deprivation of any rights,
         privileges, or immunities secured by the
         Constitution and laws, shall be liable to the
         party injured in an action at law, suit in
         equity, or other proper proceeding for
         redress.

Section 1983 does not, by its own terms, create substantive
rights; it provides only remedies for deprivations of rights
established elsewhere in the Constitution or federal laws. Baker
v. McCollan, 443 U.S. 137, 144 n. 3 (1979); Mark v. Borough of
Hatboro, 51 F.3d 1137, 1141 (3d Cir.), cert. denied, 116 S. Ct.
165 (1995) (citation omitted). In order to establish a section
1983 claim, a plaintiff "must demonstrate a violation of a right
secured by the Constitution and the laws of the United States
[and] that the alleged deprivation was committed by a person
acting under color of state law." Mark, 51 F.3d at 1141 (quoting
Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993)). Here,
Samantha Kneipp's legal guardians have alleged that the City and
police officers violated Samantha's right to substantive due
process guaranteed by the Fourteenth Amendment.
         In DeShaney v. Winnebago Co. Dep't of Social Serv., 489
U.S. 189, 197 (1989), the Supreme Court considered whether the
due process clause of the Fourteenth Amendment imposed upon the
state an affirmative duty to protect an individual against
private violence where a special relationship exists between the
state and the private individual. The Court found that the
special relationship which would impose affirmative duties of
care and protection on the state existed only in certain limited
circumstances, such as when the state takes a person into its
custody and holds him there against his will. Id. at 199-201.
The Court explained:
         In the substantive due process analysis, it
         is the State's affirmative act of restraining
         the individual's freedom to act on his own
         behalf--through incarceration,
         institutionalization, or other similar
         restraint of personal liberty--which is the
         "deprivation of liberty" triggering the
         protections of the Due Process Clause, not
         its failure to act to protect his liberty
         interests against harms inflicted by other
         means.

Id. at 200 (footnote omitted). Applying this principle to the
facts in DeShaney, the Court did not find a due process violation
as the harms suffered by the child occurred while he was in the
custody of his father, not in the state's custody. Id. at 201.
         In the case before us, we agree with the district court
that the special relationship required by DeShaney did not exist
between Samantha and the police officers. We disagree, however,
with the holding of the district court insofar as it adds a
special relationship requirement to the state-created danger
theory. In DeShaney, the Supreme Court left open the possibility
that a constitutional violation might have occurred despite the
absence of a special relationship when it stated: "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." Id. at 201.
Several of our sister courts of appeals have cited this comment
by the Court as support for utilizing a state-created danger
theory to establish a constitutional claim under 42 U.S.C. §
1983. See Uhlrig v. Harder, 64 F.3d 567, 572 n. 7 (10th Cir.
1995), cert. denied, 116 S.Ct. 924 (1996); Dwares v. City of New
York, 985 F.2d 94, 99 (2d Cir. 1993); Reed v. Gardner, 986 F.2d
1122, 1125 (7th Cir.), cert. denied, 510 U.S. 947 (1993); Freeman
v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990). Moreover, two
other courts of appeals, in decisions predating DeShaney,
recognized the state-created danger theory as a basis for
establishing a constitutional claim under section 1983. SeeCornelius v.
Town of Highland Lake, 880 F.2d 348 (11th Cir.
1989), cert. denied, 494 U.S. 1066 (1990); Wood v. Ostrander, 879
F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990).
         In previous cases, we have considered the possible
viability of the state-created danger theory as a mechanism for
establishing a constitutional claim pursuant to 42 U.S.C. § 1983.
Mark, 51 F.3d at 1152 (citing D.R. by L.R. v. Middle Bucks Area
Vo. Tech. School, 972 F.2d 1364, 1373 (3d Cir. 1992) (in banc),
cert. denied, 506 U.S. 1079 (1993)); see also Brown v. Grabowski,
922 F.2d 1097, 1114-16 (3d Cir. 1990), cert. denied, 501 U.S.
1218 (1991). Until now, we have not, however, been presented
with the appropriate factual background to support a finding that
state actors created a danger which deprived an individual of her
Fourteenth Amendment right to substantive due process. Samantha
Kneipp's case presents the right set of facts which, if believed,
would trigger the application of the state-created danger theory.
We turn first to our previous decisions in this area.
         In the 1990 case of Brown v. Grabowski, supra, Deborah
Evans had been abducted and murdered by her former live-in
boyfriend, Clifton McKenzie. Prior to the abduction, McKenzie
had held Evans hostage for three days, during which he repeatedly
threatened and sexually assaulted her. Although Evans and her
family reported this information to the local police, criminal
charges were never filed. Shortly thereafter, Evans was abducted
and imprisoned in the trunk of her car where she froze to death.
The personal representative of Evans' estate filed a civil rights
complaint against the borough and employees of the police
department alleging, inter alia, that Detective Grabowski, in
failing to file criminal charges against McKenzie and in failing
to inform Evans of her right as a victim of domestic violence to
obtain a restraining order against McKenzie, violated her
constitutional rights to due process and of access to the civil
and criminal courts.
         The plaintiff in Brown relied upon Wood v. Ostrander,
879 F.2d 583 (9th Cir. 1989), and Cornelius v. Town of Highland
Lake, 880 F.2d 348 (11th Cir. 1989), in support of her argument
that the state-created danger theory was a viable basis for
imposing constitutional liability under section 1983. In Wood, a
police officer stranded the female passenger of a drunk driver
along the side of the road in a high-crime area at 2:30 a.m.
While undertaking the five mile walk to her home, the passenger
accepted a ride from a stranger who took her to a secluded area
and raped her. The Court of Appeals for the Ninth Circuit held
that the plaintiff had raised a triable issue of fact as to
whether the police officer "`affirmatively placed [her] in a
position of danger.'" 879 F.2d at 589-90 (citation omitted).
The court further held that the plaintiff was distinguishable
from the general public and, therefore, the police had a duty to
offer her some degree of peace and safety. Id. at 590 (citing
White v. Rockford, 592 F.2d 381, 384 & n.6 (7th Cir. 1979)).
         The Court of Appeals for the Eleventh Circuit in
Cornelius validated the use of the "special danger" theory as a
basis for establishing a constitutional violation under 42 U.S.C.
§ 1983. In that case, Mrs. Cornelius was abducted at knife-point
by two prison inmates assigned to a community work squad at the
town hall where she worked. Mrs. Cornelius was held hostage and
terrorized for three days before being abandoned in another
state. She subsequently commenced a civil rights action against
various prison and town officials, alleging they owed her a duty
to assign only properly classified prison inmates, i.e.,
nonviolent-offenders, to the community work squads and to provide
adequately skilled and trained officials to supervise the prison
work squads. 880 F.2d at 352. In concluding that a triable
issue of fact existed precluding summary judgment, the court
found that the defendants affirmatively created a dangerous
situation by establishing the work squad and assigning inmates to
work around town hall. Id. at 356. Moreover, because of her
position as town clerk, Mrs. Cornelius was regularly exposed to
prison work squads, thereby increasing her vulnerability to harm.
Id. These two factors taken together "effectively operated to
place [Mrs. Cornelius] in a position of danger distinct from that
facing the public at large" and were sufficient to impose a duty
under section 1983. Id. at 357.
         The court of appeals in Cornelius also imposed a nexus
element to establish a triable issue as to special danger.
Citing Martinez v. California, 444 U.S. 277 (1980), the court
held that there must be a sufficiently close nexus between the
defendant's conduct and the plaintiff's alleged due process
violation under the Fourteenth Amendment to establish a
constitutional claim based on the special danger theory. 880
F.2d at 353 and 358. The court of appeals found the employees at
the town hall, including Mrs. Cornelius, "were well within the
identifiable radius of harm known to defendants," and thus
concluded that these facts created a triable issue as to special
danger. Id. at 359.
         We found Wood and Cornelius to be distinguishable from
the facts in Brown -- in the former cases, the state defendants
affirmatively acted to create the danger to the victims; the
plaintiff in Brown, however, failed to offer any evidence that
the police officers acted to create or to exacerbate the danger
that the former boyfriend posed to the victim. 922 F.2d at 1116.
The plaintiff demonstrated only that Detective Grabowski failed
to advise the victim of her right to seek a protective order.
Id. Thus, we concluded in Brown that the plaintiff had failed to
establish a cognizable constitutional claim under section 1983.
         In 1992, sitting in banc, we considered the state-
created danger theory in D.R. by L.R. v. Middle Bucks Area
Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992). There
two female students at a public high school alleged that they
were physically, verbally and sexually molested by male students
in a unisex bathroom and in a darkroom, which were parts of the
graphic arts classroom. The students' parents brought a civil
rights action against the school district and several school
officials and employees, alleging that the defendants created the
danger that resulted in a violation of the plaintiffs'
constitutional rights. In support of this claim, plaintiffs
argued that the school defendants "`created a climate which
facilitated sexual and physical abuse of students'" and, having
thrust plaintiffs into this situation, "were obligated to protect
them from violations of their personal bodily integrity by other
students who were also under defendants' control." Id. at 1373.
         In D.R., we recognized that the state-created danger
theory had been utilized by several courts of appeals to find a
constitutional violation under section 1983 in non-custodial
settings. Id. We read the post-DeShaney decisions to frame the
inquiry as "whether the state actors involved affirmatively acted
to create plaintiff's danger, or to render him or her more
vulnerable to it." Id. (citation omitted). We continued that
"[l]iability under the state created danger theory is predicated
upon the states' affirmative acts which work to plaintiffs'
detriments in terms of exposure to danger." Id. at 1374. We
quoted the following comment from the Court of Appeals for the
Seventh Circuit:
              We do not want to pretend that the line
         between action and inaction, between
         inflicting and failing to prevent the
         infliction of harm, is clearer than it is.
         If the state puts a man 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
         active tortfeasor as if it had thrown him
         into a snake pit.

Id. (quoting Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.
1982)).
         We concluded in D.R. that the facts presented did not
show that the defendants created the students' danger, increased
their risk of harm, or made them more vulnerable to the assaults.
Id. Moreover, we found the state-created danger line of cases to
be factually distinguishable in a critical respect: in the cases
where the courts imposed a constitutional duty based on a state-
created danger, the state had affirmatively acted to create the
danger. Id. In D.R., we found that the harm to the students
resulted solely from the acts of private individuals, and not
from the type of intermingling between state conduct and private
violence that imposed liability in Wood and Cornelius. Id. at
1375. The acts or omissions of the school defendants in D.R., we
concluded, did not rise to the level of affirmative action
required to impose liability under the state-created danger
theory.
         In the 1994 case of Fagan v. City of Vineland, 22 F.3d
1296 (3d Cir. 1994) (in banc) (Fagan II), the plaintiffs claimed
their constitutional rights to substantive due process were
violated when police officers recklessly conducted a high speed
pursuit in violation of the Attorney General's guidelines. The
plaintiffs also alleged that the municipal defendant was liable
because it followed a policy of not properly training and
supervising police officers in conducting high-speed pursuits,
and because it followed a policy of not enforcing the pursuit
guidelines. The sole issue before us was the appropriate
standard by which to judge police conduct in pursuit cases
alleging a violation of substantive due process. Id. at 1299.
We held that the appropriate standard to be applied in police
pursuit cases involving an alleged violation of substantive due
process is the "shocks the conscience" test. Id. at 1303.
         In Fagan II, we declined to consider the applicability
of the DeShaney line of cases which imposed a constitutional duty
in limited situations, i.e., special relationship or custody
cases, to police pursuit cases, as this issue was not raised by
the parties or addressed by the district court. Id. at 1308 n.9.
Moreover, the plaintiffs in Fagan II did not advance the state-
created danger theory as a basis for establishing a
constitutional violation. Thus, neither the district court nor
our court had the opportunity in Fagan II to review the viability
of the state-created danger theory. We believe that the Fagan IIshocks
the conscience standard is limited to police pursuit
cases, and accordingly, we are not bound to follow that standard
in the case before us.
         In the 1995 case of Mark v. Borough of Hatboro, supra,
we suggested a test for applying the state-created danger theory.
We found that cases predicating constitutional liability on a
state-created danger theory have four common elements:
         (1) the harm ultimately caused was
         foreseeable and fairly direct; (2) the state
         actor acted in willful disregard for the
         safety of the plaintiff; (3) there existed
         some relationship between the state and the
         plaintiff; (4) the state actors used their
         authority to create an opportunity that
         otherwise would not have existed for the
         third party's crime to occur.

51 F.3d at 1152. We further noted that "[t]he cases where the
state-created danger theory was applied were based on discrete,
grossly reckless acts committed by the state or state actors
using their peculiar positions as state actors, leaving a
discrete plaintiff vulnerable to foreseeable injury." Id. at
1153. Those courts which have recognized the state-created
danger theory have employed a deliberate indifference standard.
Id. at 1152 (quoting Johnson v. Dallas Independent School Dist.,
38 F.3d 198, 201 (5th Cir. 1944), cert. denied, 115 S. Ct. 1361
(1995); Wood, 879 F.2d at 588; Cornelius, 880 F.2d at 350).
         We again declined to adopt the state-created danger
theory in Mark because its facts were dissimilar to the courts of
appeals cases which upheld its use. Id. at 1152. The alleged
constitutional violation in Mark arose from the borough's
"failure to follow adequate policies to ensure that applicants to
the fire department were screened sufficiently for tendencies
towards arson." Id. at 1140. We concluded that when the alleged
violation involved a policy directed at the public in general,
such as the one at issue in Mark, the basis for the state-created
danger theory was obviated insofar as the defendant lacked
specific knowledge of the plaintiffs' condition, and a
relationship between the defendants and plaintiffs did not exist.
Id. at 1153.
         We turn now to the unique facts presented in the case
before us.

                               III.
         We begin by applying the four common elements we set
forth in Marks for the state-created danger theory. First, the
injuries to Samantha were foreseeable -- Dr. Saferstein stated in
his report that at a blood alcohol level of .25%, Samantha's
muscular coordination was seriously impaired. Joseph's testimony
as to how he had to help his wife walk, even carry her at times,
also tends to show that Samantha's ability to walk was impaired.
A reasonable trier of fact could conclude that in Samantha's
state of intoxication, she would be more likely to fall and
injure herself if left unescorted than someone who was not
inebriated. Based on the facts and inferences most favorable to
the legal guardians, we hold that a reasonable jury could find
that the harm likely to befall Samantha if separated from Joseph
while in a highly intoxicated state in cold weather was indeed
foreseeable.
         Second, we find the plaintiffs have adduced sufficient
evidence to raise a material issue as to whether Officer Tedder
acted in willful disregard for Samantha's safety. The plaintiffs
presented evidence regarding Samantha's level of intoxication and
impairment; by Officer Tedder's own testimony, he admitted that
he knew Samantha was drunk. Moreover, Tedder's statement that he
sent Samantha and Joseph home together is contradicted by the
testimony of Joseph, Officer Healy and Tina Leone.
         We also believe the legal guardians have proved the
third element -- a relationship between the state and the person
injured (here Officer Tedder and Samantha and Joseph Kneipp)
during which the state places the victim in danger of a
foreseeable injury. Mark, 51 F.3d at 1153. Here it is alleged
that Officer Tedder, exercising his powers as a police officer,
placed Samantha in danger of foreseeable injury when he sent her
home unescorted in a visibly intoxicated state in cold weather.
A reasonable jury could find that Officer Tedder exerted
sufficient control over Samantha to meet the relationship
requirement.
         Finally, there is sufficient evidence in the summary
judgment record to show that Officer Tedder and the other police
officers used their authority as police officers to create a
dangerous situation or to make Samantha more vulnerable to danger
had they not intervened. The conduct of the police, in allowing
Joseph to go home alone and in detaining Samantha, and then
sending her home unescorted in a seriously intoxicated state in
cold weather, made Samantha more vulnerable to harm. It is
conceivable that, but for the intervention of the police, Joseph
would have continued to escort his wife back to their apartment
where she would have been safe. A jury could find that Samantha
was in a worse position after the police intervened than she
would have been if they had not done so. As a result of the
affirmative acts of the police officers, the danger or risk of
injury to Samantha was greatly increased. Thus, we believe that
a reasonable jury could find that the fourth and final
requirement of Mark was satisfied here.
         We find additional support for our position in the
courts of appeals' decisions previously cited. See Reed v.
Gardner, 986 F.2d at 1127 (police officer who removed a sober
driver and left behind a passenger whom he knew to be drunk with
the keys to the car was subject to liability under 42 U.S.C. §
1983); Freeman v. Ferguson, 911 F.2d at 54 (police chief, by
interfering with police officers' enforcement of restraining
order, created the danger which resulted in the victims' deaths
and thus deprived victims of their constitutional rights); White
v. Rockford, 529 F.2d at 385 (police officers who arrested uncle
for drag racing and left minor children alone in abandoned car on
the side of a busy, limited-access highway in cold weather had
deprived children of their constitutional rights to personal
security where the abandonment resulted in physical and emotional
injury to the children).
         In contrast to the above cited authority stands the en
banc decision of the United States Court of Appeals for the
Eighth Circuit in Gregory v. City of Rogers, Arkansas, 974 F.2d
1006 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993). In that
case, the plaintiffs brought a civil rights action against the
municipality and one of its police officers on the basis that
defendants had a duty to provide for the safety of the passengers
of a drinking group after the police arrested their designated
driver on an outstanding warrant. After detaining the designated
driver along the road for several minutes, the police allowed the
designated driver to drive the car to the police station. The
intoxicated passengers remained in the car, which was parked in
front of the police station, while the designated driver cleared
up the outstanding warrant inside the station with the police.
After waiting approximately thirty minutes, one of the
intoxicated passengers, the owner of the car, drove the car away
and subsequently was involved in a one-car accident, killing
himself and seriously injuring his passenger. Plaintiffs
contended that the police officer actively placed the passengers
in danger by permitting them to stay in the car unattended while
waiting for the designated driver at the police station "`in
spite of their obviously intoxicated condition.'"   Id. at 1009-
10.
         In Gregory, the plaintiffs' argument turned on whether
the police officer knew or should have known the passengers were
intoxicated. The court of appeals found that the plaintiffs
failed to submit sufficient evidence which would lead a
reasonable trier of fact to conclude that the police officer knew
or should have known that the passengers were intoxicated and
unfit to drive, and thus, upheld the district court's grant of
summary judgment. The court of appeals, however, did not end its
analysis there. It went on to say that even if the police
officers knew the passengers were intoxicated, a reasonable jury
could not find that the police officer affirmatively placed the
passengers in danger by leaving them unattended in the car at the
station. Id. at 1011. The court explained that it was the
designated driver who placed the passengers in danger by leaving
the keys in the car when he went into the police station. Id. at
1012. To impose a duty on the police to take affirmative action
to protect the passengers, the court held, would circumvent the
general rule that plaintiffs do not have a constitutional right
to be protected by the police against harm inflicted by third
persons. Id. (citing Wells v. Walker, 852 F.2d 368, 370 (8th
Cir. 1988), cert. denied, 489 U.S. 1012 (1989); DeShaney, 489
U.S. at 195-96).
         Gregory, however, is distinguishable from this case in
two respects. First the court of appeals in Gregory found that
the police officer did not know that the passengers were
intoxicated -- neither the testimony of the witnesses, nor the
behavior of the two passengers observed during the traffic stop
on the roadway indicated they were intoxicated. In contrast
here, Officer Tedder admitted that he knew Samantha was drunk at
the time he was questioning her, and Samantha was observed
staggering, walking and standing with difficulty, requiring that
she lean on parked cars or be carried by her husband.
         The second distinction is who created the danger -- in
Gregory, the court found that the third party created the danger
by leaving the keys in the car; in the case before us, the police
officers intervened to cut off Samantha's private source of
protection by giving Joseph permission to go home alone, thereby
increasing the danger that Samantha would suffer harm in her
visibly intoxicated state when they abandoned her. The
affirmative acts of the police officers here created a dangerous
situation, requiring that they take additional measures to ensure
Samantha's safety. That they failed to take the appropriate
measures, knowing that Samantha was severely intoxicated, shows
that the police officers acted with reckless disregard for her
safety. On the other hand, the conduct of the police officer in
Gregory did not rise to a level of recklessness. He did not know
the passengers were drunk; nor did he take any affirmative action
to create the dangerous situation -- leaving the keys in the car.
Put another way, the passengers in Gregory were never abandoned;
all they had to do was remain in the safety of the car and await
the return of their driver. Samantha, however, was isolated from
her husband and then abandoned by the police. Clearly then,
because of these two important distinctions, Gregory is not
dispositive of the issue before us.
         At oral argument, we requested counsel for both sides
to submit a letter brief under Fed. R. App. P. 28(j) on the issue
of whether the Philadelphia police officers have a duty to arrest
an intoxicated person as a basis for imposing liability for a
constitutional tort under section 1983. We are convinced, after
reviewing the pertinent caselaw, that no such duty exists in
Pennsylvania. Even so, the failure to arrest Samantha would
not give rise to a constitutional claim, as liability under
section 1983 can be predicated only on violations of "federal
statutory or constitutional rights under color of state law."
D.R., 972 F.2d at 1375 (citations omitted). The illegal conduct
under the state law cannot add to or subtract from the
"constitutional validity `[of a state's actions].'" Id.(citations
omitted).
         Under the particular circumstances of this case, we
hold that the state-created danger theory is a viable mechanism
for establishing a constitutional claim under 42 U.S.C. § 1983.
When viewed in the light most favorable to the legal guardians,
the evidence submitted was sufficient to raise a triable issue of
fact as to whether the police officers affirmatively placed
Samantha in a position of danger. The district court erred,
therefore, in granting summary judgment for the defendant police
officers based on its finding that a constitutional violation had
not occurred.

                               IV.
         The plaintiffs also argue that liability should be
imposed under section 1983 against the City of Philadelphia for
constitutional violations as a result of the City's acquiescence
in the longstanding policy, custom or practice of not granting
"activity credits" for taking intoxicated individuals into
custody, and its failure to adequately train its police officers
in the proper care of intoxicated persons. By so doing, the
plaintiffs contend, the City acted with "deliberate or reckless
indifference, callous disregard, or in an arbitrary and abusive
manner so as to shock the conscience." Consequently, Samantha's
right to substantive due process and her liberty interest in
personal security guaranteed by the Fourteenth Amendment were
allegedly violated.
         We do not believe the district court adequately
considered the appropriate legal standard in granting the City's
motion for summary judgment. Although we feel compelled to set
forth the appropriate legal standard, we decline to rule on
whether it was met here, leaving that determination to the
district court in the first instance.
         The Supreme Court enunciated the rule for imposing
liability against a municipality under section 1983 in Monell v.
New York City Dept. of Social Serv., 436 U.S. 658 (1978). The
Court held in Monell that:
         . . . a local government may not be sued
         under § 1983 for an injury inflicted solely
         by its employees or agents. Instead, it is
         when execution of a government's policy or
         custom, whether made by its lawmakers or by
         those whose edicts or acts may fairly be said
         to represent official policy, inflicts the
         injury that the government as an entity is
         responsible under § 1983.

Id. at 694. Accordingly, the Supreme Court expressly rejected
the imposition of section 1983 liability against a municipality
on a respondeat superior theory. Id. at 691.
         In City of Canton v. Harris, 489 U.S. 378 (1989), the
Supreme Court was asked to decide whether liability can ever be
imposed against a municipality under section 1983 for
constitutional violations as a result of failing to train its
police officers. Mrs. Harris had been arrested and taken to the
police station for processing where she "slumped to the floor"
twice and spoke incoherently. Medical assistance was never
sought for her. Following her release from custody, Mrs. Harris
was taken to a hospital by her family, where she was diagnosed as
suffering from several emotional injuries. In concluding that
section 1983 liability may attach to a municipality if it had a
policy or custom of failing to train its employees and that
failure caused the underlying constitutional violation, the
Court rejected the City of Canton's argument that only
unconstitutional policies are actionable under the civil rights
statute. Id. at 387. As to the degree of fault required to
impose liability for the municipality's inaction, the Court
articulated the following rule: "the inadequacy of police
training may serve as the basis for section 1983 liability only
where the failure to train amounts to deliberate indifference to
the rights of persons with whom the police came into contact."
Id. at 388 (footnote omitted). The Court further explained:
         Only where a municipality's failure to train
         its employees in a relevant respect evidences
         a "deliberate indifference" to the rights of
         its inhabitants can such a shortcoming be
         properly thought of as a city "policy or
         custom" that is actionable under § 1983
         . . . . Only where a failure to train
         reflects a "deliberate" or "conscious" choice
         by a municipality -- a "policy" as defined by
         our prior cases -- can a city be liable for
         such a failure under § 1983.

Id. at 389. In addition to proving deliberate indifference, the
Court held that the plaintiffs must show that the "deficiency in
training actually caused the police officers' indifference to
[the individual's] medical needs." Id. at 391.
         Recently, we had the opportunity to examine the
holdings of Monell and its progeny in Beck v. City of Pittsburgh,
___ F.3d ___, No. 95-3328, 1996 WL 406776 (3d Cir. July 22,
1996). In Beck, we were asked to decide whether sufficient
evidence had been presented for a jury to infer that a
municipality had adopted a custom of permitting its police
officers to use excessive force in the performance of their
duties. Citing Pembaur v. City of Cincinnati, 475 U.S. 469
(1986), we noted that the Supreme Court recognized a "two-path
track to municipal liability under § 1983," either through
government policy or custom. Beck, 1986 WL 406776, at *6. We
had previously set forth the parameters of a government policy or
custom for section 1983 liability:
         Policy is made when a "decisionmaker
         possess[ing] final authority to establish
         municipal policy with respect to the action"
         issues an official proclamation, policy, or
         edict. A course of conduct is considered to
         be a "custom" when, though not authorized by
         law, "such practices of state officials [are]
         so permanent and well settled" as to
         virtually constitute law.

Beck, id. (quoting Andrews v. City of Philadelphia, 895 F.2d
1469, 1480 (3d Cir. 1990) (citations omitted). Moreover, a
prerequisite to establishing liability in either situation is a
showing that a policymaker was responsible either for the policy
or, through acquiescence, for the custom. Id. See also Jett v.
Dallas Independent School Dist., 491 U.S. 701 (1989); Bielevicz
v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).
         In order to ascertain who is a policymaker, "a court
must determine which official has final, unreviewable discretion
to make a decision or take action." Andrews, 895 F.2d at 1481.
We further held in Bielevicz that:
         Under § 1983, only the conduct of those
         officials whose decisions constrain the
         discretion of subordinates constitutes the
         acts of the municipality. This does not
         mean, however, that the responsible
         decisionmaker must be specifically identified
         by the plaintiff's evidence. Practices "`so
         permanent and well settled' as to have `the
         force of law' [are] ascribable to municipal
         decisionmakers."

915 F.2d at 850 (citations omitted).
         Proof only of the existence of an unlawful policy or
custom is not sufficient, however, to impose municipal liability
under section 1983. Id. A plaintiff must also establish that
the government policy or custom was the proximate cause of the
injuries sustained. Id. (citation omitted). "To establish the
necessary causation, a plaintiff must demonstrate a `plausible
nexus' or `affirmative link' between the municipality's custom
and the specific deprivation of constitutional rights at issue."
Id. (citation omitted). To the extent that the "causal link" is
not too attenuated, the jury must decide whether the government
policy or custom proximately caused the constitutional violation.
Id.
         Here, the district court dismissed the municipal
liability claims against the City of Philadelphia on the basis
that the plaintiffs failed to establish an underlying
constitutional violation pursuant to section 1983. It does not
appear that, in so ruling, the district court considered the
substantive elements of the municipal liability claims -- whether
(1) the City of Philadelphia's training program for handling
intoxicated persons was adequate; (2) if the training program was
inadequate, the City was deliberately indifferent to the
deficiency; and, (3) the deficiency in the training actually
caused the police officers' indifference to Samantha's
intoxication and need for assistance. The precedent in our
circuit requires the district court to review the plaintiffs'
municipal liability claims independently of the section 1983
claims against the individual police officers, as the City's
liability for a substantive due process violation does not depend
upon the liability of any police officer. Fagan v. City of
Vineland, 22 F.3d 1283, 1293-94 (3d Cir. 1994) (Fagan I) (citing
Simmons v. City of Philadelphia, 947 F.2d 1042, 1063 (3d Cir.
1991), cert. denied, 503 U.S. 985 (1992)). Accordingly, on
remand, the district court must evaluate the municipal liability
claims in light of the standards set forth above, notwithstanding
the outcome as to the claims against the individual police
officers.
                                V.
         In conclusion, we find that the evidence presented,
when viewed in the light most favorable to the legal guardians,
together with all reasonable inferences on their behalf, could
support a jury's verdict in their favor as to the constitutional
violations alleged against the individual police officers. We
will, therefore, reverse the order of the district court granting
summary judgment for the defendants and remand for trial on this
issue, and for further consideration of the municipal liability
claims against the City of Philadelphia in light of our opinion.
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