                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-26-2004

Rivas v. Passaic
Precedential or Non-Precedential: Precedential

Docket No. 02-3875




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Recommended Citation
"Rivas v. Passaic" (2004). 2004 Decisions. Paper 741.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/741


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                  PRECEDENTIAL
                                             *City of Passaic; *Passaic Police
   UNITED STATES COURT OF                    Department; Police Officer Paul
APPEALS FOR THE THIRD CIRCUIT                   Slater, #283; Police Officer
          __________                           Ross Capuana, #234; Police
                                             Officer Robert Callaghan, #271;
     Nos. 02-3875 and 02-3916                  Police Officer Farallo, #299;
           __________                        Police Officer O’Donnell, #301;
                                            Police Officer Robert Longo, #261,
MILAGROS RIVAS, Individually and                    Appellants 02-3916
as Administrator ad Prosequendum of
 the ESTATE OF CARLOS RIVAS;                 *Dismissed per Court Order dated
 AMAUREY RIVAS; SAGRARIO                                 2/27/03
   RIVAS; CARLOS RIVAS, JR.;
   AMINABEL RIVAS; PALOMA                               _________
              RIVAS
                                                       On Appeal from
                 v.                        the United States District Court for the
                                                    District of New Jersey
   CITY OF PASSAIC; PASSAIC                     Civil Action No. 99-CV-3523
 POLICE DEPARTMENT; CITY OF               District Judge: Honorable William Walls
  PASSAIC-EMT DIVISION; ROSS                             __________
CAPUANA, POLICE OFFICER, #234;
 PAUL SLATER, POLICE OFFICER,                  Argued on December 12, 2003
   #283; ROBERT CALLAGHAN,                            ___________
    POLICE OFFICER, #271; G.
CACERES, POLICE OFFICER, #307;            Before: AMBRO, FUENTES, and
FARALLO, POLICE OFFICER, #299;            GARTH, Circuit Judges
  O'DONNELL, POLICE OFFICER,
  #301; ROBERT LONGO, POLICE                      (Filed: April 26, 2004)
OFFICER, #261; GEORGE GARCIA,                           __________
EMT; AMALIN RODRIGUEZ, EMT;
MIKE LOVITCH, PARAMEDIC; BILL             David L. Ganz, Esq. (Argued)
      WALSH, PARAMEDIC;                   Ganz & Savin, LLP
  PASSAIC-CLIFTON MICU; JOHN              Five Ryder Road
       DOES I THROUGH X                   Fair Lawn, New Jersey 07410
                                          Counsel for Appellants Garcia and
  George Garcia; Amalin Rodriguez,        Rodriguez
            Appellants,
                 02-3875

                                      1
Peter W. Till, Esq. (Argued)
Law Offices of Peter W. Till
                                       Garth, Circuit Judge:
105 Morris Avenue, Suite 201
Springfield, New Jersey 07081                 This Section 1983 case focuses on
Counsel for Appellant Farallo          the conduct of a group of police officers
                                       and medical professionals who
Anthony J. Fusco, Jr., Esq.            responded to an emergency in an
Fusco & Macaluso                       apartment where a middle-aged man was
150 Passaic Avenue                     experiencing a seizure. The seizure
P.O. Box 838                           victim, after being restrained, died
Passaic, New Jersey 07055              shortly after the police arrived, thereby
Counsel for Appellant O’Donnell        prompting a lawsuit by his family. The
                                       District Court denied motions brought by
                                       the police officers and the medical
Nicholas J. Palma, Esq.                professionals for summary judgment,
1426 Broad Street                      giving rise to this appeal. We hold that
Clifton, New Jersey 07013              there are certain material factual disputes
Counsel for Appellant Slater           that must be resolved by a jury.
                                       Accordingly, we will affirm the District
Joel M. Miklacki, Esq.                 Court’s order with respect to EMTs
300 Broadacres Drive, 3rd Floor        Amalin Rodriguez and George Garcia
Bloomfield, New Jersey 07003           and Police Officers Rosario Capuana,
Counsel for Appellant Callaghan        Paul Slater, Robert Callaghan, Mauro
                                       Farallo, and Timothy O’Donnell. We
Miles Feinstein, Esq.                  will dismiss Police Officer Robert
1135 Clifton Avenue                    Longo’s appeal.
Clifton, New Jersey 07013
Counsel for Appellant Capuana                              I.

Kathleen C. Goger, Esq. (Argued)              On the morning of November 6,
Singer & Goger                         1998, Milagros Rivas awoke in bed to
Renaissance Towers                     find her 44-year-old husband, Carlos
111 Mulberry Street                    Rivas, shaking uncontrollably. The
Townhouse 1-A                          Rivases lived with their five children on
Newark, New Jersey 07102               the second and third floors of a two-
Counsel for Appellees                  family house in Passaic, New Jersey.
      _______________________          The house had an enclosed front porch,
                                       from which a stairwell led up to the
     OPINION OF THE COURT              Rivases’ apartment.
     _______________________

                                   2
    A. The Initial Medical Response                     Rodriguez provides a very
                                                different account of what transpired
        Because Mrs. Rivas spoke poor           when she first entered the apartment. In
English, she asked one of her children to       a sworn declaration submitted to the
call 911 for an ambulance. At                   District Court, Rodriguez claimed that:
approximately 7:05 a.m., emergency              “Subsequent to my arrival, I was place
medical technicians (“EMTs”) George             [sic] in eminent [sic] fear of my life
Garcia and Amalin Rodriguez arrived on          when Carlos Rivas attach [sic] me
the scene. They were met on the street          without provocation, put his arm around
by Mrs. Rivas, who testified that she           my neck, and attempted (my view at the
immediately informed Rodriguez in               time) to strangle me.” This account was
Spanish that her husband had                    corroborated by Garcia, who entered the
experienced some convulsions and that           house after he parked the ambulance. He
he had previously had seizures. Mrs.            testified that as he climbed the stairs to
Rivas also testified that she advised           the Rivases’ apartment he saw
Rodriguez that Mr. Rivas was taking             Rodriguez and Mrs. Rivas run out of the
diabetic medication and that Rodriguez          apartment into a small vestibule at the
should not talk to or touch Mr. Rivas.          top of the stairwell followed by Mr.
This last piece of information seems to         Rivas, who he claims came towards
have been sound advice because                  Rodriguez and “put his hands on her
Rodriguez later testified that she had          shoulders, like choking.”
learned as part of her medical training
that a patient experiencing a seizure                  Garcia claims he ducked under
should not be disturbed during the              Mr. Rivas’s arm and wedged himself
period of the seizure.                          between Rodriguez and Mr. Rivas, so
                                                that he could push Mr. Rivas back.
       Rodriguez followed Mrs. Rivas            Garcia described Mr. Rivas, who stood
into the apartment while Garcia parked          approximately 5 feet, 5 inches tall and
the ambulance. Mrs. Rivas testified that        weighed 240 pounds, as “physically
when they entered the apartment, she            strong.” Garcia even went so far as to
found her husband standing in the living        describe the situation as “life-
room looking ashen. According to her            threatening.” Mrs. Rivas disputes these
testimony, Mr. Rivas raised his arms in         statements as well, claiming that Garcia
front of him and began walking in their         “did not put his body weight against my
direction “like a zombie,” but that she         husband to protect [Rodriguez], since
and Rodriguez stepped out of his way.           there was nothing to protect her from.”
Mrs. Rivas is adamant that her husband
never came into physical contact with                   It is undisputed that Garcia told
Rodriguez.                                      Rodriguez to go into the apartment and
                                                call for police backup. Meanwhile, Mr.

                                            3
Rivas walked through the living room             around this time that a third police
and into a bathroom, where he sat down           officer, Rosario Capuana, entered the
on a closed toilet and rested his head           apartment. As the three officers escorted
against a windowsill. Garcia followed            Mr. Rivas through the kitchen, Officer
closely behind and waited outside the            Slater claims to have noticed a large
bathroom. After calling for backup,              knife on the kitchen table, prompting
Rodriguez questioned Mrs. Rivas in the           him to remark, “There’s a knife on the
kitchen about her husband’s condition.           table. Let’s go into the living room.”
                                                 Officer Slater testified that when he
     B. The Initial Police Response              placed his hand on Mr. Rivas’s shoulder
                                                 to direct him into the living room, Mr.
        The first two police officers to         Rivas became very aggressive and began
respond to the request for assistance            punching and pushing him in the chest.
were Robert Callaghan and Paul Slater.           Officers Slater and Callaghan claim they
Officer Callaghan testified that he and          reacted by trying to restrain Mr. Rivas,
Officer Slater were informed upon their          and that they all fell to the floor of the
arrival by Garcia that a male patient            living room.
inside the apartment had assaulted
Rodriguez.1 Officer Callaghan also                       Mrs. Rivas, who was standing in
testified that he and Officer Slater did         the kitchen when her husband exited the
not receive “any information as to Mr.           bathroom, paints a very different picture
Rivas’ physical condition,” but this was         of what transpired. She agrees that one
disputed by Garcia and Rodriguez, who            of the officers grabbed her husband’s
signed an incident report which states           shoulder as they walked through the
that: “Upon arrival of Police . . . EMT G.       kitchen, but she claims her husband
Garcia informed the officer’s [sic] of the       merely pulled his shoulder away and that
patient’s medical history (diabetes and          he did not attack any of the officers. She
possible seizure hx: RX: Rezulin).”              testified that the officers threw her
                                                 husband to the floor without any
        The two officers proceeded               provocation.
directly to the bathroom, where they
found Mr. Rivas sitting on the closed                   Officer Capuana provided yet a
toilet. Officer Callaghan instructed Mr.         third version. He testified that he was
Rivas to leave the bathroom. Mr. Rivas           walking in front of Mr. Rivas through
complied, but remained silent. It was            the kitchen when he suddenly heard
                                                 grunting noises behind him. When he
                                                 turned around, he saw Mr. Rivas
       1
        Officer Slater testified that it         experience what appeared to be a
was Rodriguez, not Garcia, who                   seizure, grunting and shaking violently.
informed them about the alleged assault.         At his deposition, Capuana could not

                                             4
recall what Officers Slater and Callaghan         struggle, merely reached around blindly
were doing at the time, but he was                with his arm and touched Officer
confident that no one was touching Mr.            Callaghan’s thigh. Officers Callaghan
Rivas. He testified that Mr. Rivas fell to        and Slater also allege that they were
the ground and began swinging violently           bitten by Mr. Rivas.2
and kicking and that he (Officer
Capuana) and the other two officers tried                 Garcia and Rodriguez stayed out
to control Mr. Rivas.                             of the fray, but observed most of the
                                                  altercation. Garcia remembers one of the
 C. The Struggle to Restrain Mr. Rivas            officers sitting on Mr. Rivas’s back,
                                                  around the waistline. He testified that
        The struggle on the living room           this officer yelled, “Don’t you see he’s
floor between Mr. Rivas, who fell onto            trying to get into my gun?,” and then
his stomach, and the three police officers        proceeded to strike Mr. Rivas in the face
continued for several minutes. Officer            with a flashlight. Towards the end of the
Slater, who was attempting to restrain            struggle, Garcia left the apartment to
Mr. Rivas’s left arm, later described it as       retrieve a lightweight stretcher from the
“a life and death game of twister.”               ambulance.
Officer Callaghan, who says he was on
Mr. Rivas’s other side and was                            Rodriguez remained in the
attempting to restrain his right arm,             kitchen during the struggle. She did not
testified that Mr. Rivas was “extremely           observe the officers and Mr. Rivas fall to
strong, struggled violently and kept              the floor, but she recalls seeing one of
pulling away.” The third officer,                 the officers place his knee in the middle
Capuana, kneeled behind Mr. Rivas and             of Mr. Rivas’s back. She also testified
tried to pin down his legs. Officer               that, during the struggle on the floor, one
Capuana testified that Mr. Rivas lost             of the officers shoved his flashlight into
control of his bladder during the                 Mr. Rivas’s mouth and left it there for
struggle.                                         “[p]robably not even five minutes.”

        All three officers allege that at
one point during the struggle, Mr. Rivas                 2
                                                            This allegation is corroborated
tried to grab Officer Callaghan’s pistol          to some extent by hospital records,
from his holster. Officer Capuana                 which show that Officers Slater and
testified that Mr. Rivas “actually had it         Callaghan were both admitted to Passaic
palmed in his hand,” but that Officer             General Hospital for treatment. The
Callaghan was able to push Mr. Rivas’s            records are somewhat difficult to read,
hand away. Mrs. Rivas disputes this               but it seems Officer Slater was treated
allegation, claiming that her husband,            for a leg injury and Officer Callaghan for
who was on his stomach throughout the             a wrist injury.

                                              5
        Mrs. Rivas also remained in the          because he felt “the scene was taken
kitchen during the struggle. She testified       over by the police.” After the officers
that after the officers threw her husband        placed Mr. Rivas on the stretcher, Garcia
to the ground, Officer Callaghan sat on          bound his ankles with cloth restraints.
his back with his knees straddling Mr.
Rivas’s torso. She alleges that the                      Once Mr. Rivas was secured in
officers repeatedly pushed Mr. Rivas’s           the stretcher, Garcia helped the officers
head into the carpet while they tried to         carry him downstairs. They carried him
handcuff his wrists behind his back.             down the stairs head first, even though
Mrs. Rivas testified that she kept yelling       EMTs are trained to carry patients down
at the police, “It’s not like that — he’s        stairs feet first. Again, Garcia did not
very sick,” but that Officer Callaghan           say anything to the police officers.
stood up and yelled, “bitch shut your
mouth.” Mrs. Rivas’s daughter gave                       The Rivas family claims the
similar testimony.                               officers were making crude remarks like,
                                                 “Damn, he’s heavy, this pig, this dog,”
 D. Mr. Rivas is Placed on a Stretcher           as they carried Mr. Rivas down the
                                                 stairs. Near the bottom of the stairwell,
        After several minutes passed, a          one of the straps on the stretcher
second wave of police officers arrived           apparently snapped and Mr. Rivas slid
on scene. They were Officers Mauro               out of the stretcher head first, struck his
Farallo, Timothy O’Donnell, Robert               head, and tumbled down the steps.
Longo and Glisette Caceras. With their           While he lay on the stairs, he lost control
assistance, the officers were able to            of his bowels and defecated himself.
handcuff Mr. Rivas’s hands behind his            Officers Longo and O’Donnell grabbed
back and a short time later, Mr. Rivas           Mr. Rivas by his arms and slid him down
apparently came out of his seizure and           the remaining stairs and onto the front
became still. Garcia returned to the             porch.
apartment and the officers picked Mr.
Rivas up and placed him face down on                    Rodriguez, who was standing at
the stretcher. Garcia knew from his              the top of the stairs, did not see Mr.
EMT training that the proper protocol is         Rivas fall out of the stretcher, but she
to place a patient face up on a stretcher        heard the commotion and looked over.
to make sure the airway remains clear,           The smell of vomit and feces quickly
which is particularly important for a            overpowered her and she ran outside.
seizure victim. Garcia later                     As she passed through the porch, she
acknowledged that he became concerned            saw Mr. Rivas laying on the floor with
about Mr. Rivas’s airway when the                some blood near his head.
officers placed him face-down on the
stretcher, but that he did not speak up                 Officer Longo testified that Mr.

                                             6
Rivas became combative on the porch.              a.m., Mr. Rivas was pronounced dead.
He testified that, together with Officers
Farallo and O’Donnell, he held Mr.                  F. The Medical Examiner’s Report
Rivas down on the porch. Officer
Longo said he held Mr. Rivas down by                      Later that day, a Medical
placing his body weight on top of Mr.             Examiner conducted a postmortem
Rivas’s shoulders, and that the other             examination and autopsy of Mr. Rivas’s
officers used similar means to restrain           corpse. He noted in his report that Mr.
Mr. Rivas.                                        Rivas’s two upper front teeth were
                                                  partially dislodged. The report also
      E. The Paramedics’ Arrival                  noted a number of superficial contusions
                                                  and abrasions, but the Medical Examiner
       It was around this time that               did not find any evidence of trauma or
paramedics Michael Lovitch and                    injury that would have contributed to
William Walsh arrived. Walsh                      Mr. Rivas’s death. After a toxicology
immediately noticed Mr. Rivas lying               report came back negative, the Medical
face down on the enclosed porch,                  Examiner concluded that Mr. Rivas had
allegedly moving his head and arms in             died from a “Cardio-Respiratory Arrest
an effort to resist the police officers who       Following Acute Psychotic Episode of
were on top of him. While the                     Undetermined Etiology,” i.e., Mr.
paramedics conferred with Rodriguez               Rivas’s heart and lungs stopped
and Garcia about Mr. Rivas’s medical              functioning following a period of intense
condition, Mr. Rivas suddenly became              physical activity, with the cause of the
very still and relaxed.                           psychotic episode being unknown. The
                                                  manner of death was listed as “Natural.”
        The officers carried Mr. Rivas to
an ambulance stretcher waiting on the              G. The Rivas Family’s Medical Expert
sidewalk and placed him face-down in
the stretcher, but Lovitch and Walsh                      The Rivas family subsequently
instructed the officers to turn Mr. Rivas         hired Dr. Michael Baden, a well-known
onto his back. When they did so,                  forensic pathologist, to render a second
Lovitch and Walsh discovered that Mr.             opinion on Mr. Rivas’s cause of death.
Rivas was not breathing and had no                After reviewing all of the relevant
pulse. They immediately placed Mr.                materials, Dr. Baden concluded that the
Rivas in the ambulance and began                  Medical Examiner had correctly found
administering advanced life support. En           that Mr. Rivas had experienced a
route to the hospital, the paramedics             respiratory arrest resulting in cardiac
succeeded in reestablishing a pulse and           arrest. Dr. Baden believed, however,
heart rhythm, but they could not get Mr.          that Mr. Rivas’s death followed “an
Rivas to breathe on his own. At 8:20              acute medical episode rather than ‘an

                                              7
acute psychotic episode’ and the etiology         9.6(a)(1),” and it placed Garcia and
was not ‘undetermined’ but due to                 Rodriguez on provisional status for six
asphyxia caused by police action that             months.
prevented Mr. Rivas from breathing.”
Dr. Baden therefore concluded that the                   A separate investigation was led
manner of death should have been listed           by the Internal Affairs Division
in the Medical Examiner’s report as a             (“Internal Affairs”) of the Passaic Police
homicide.                                         Department. After interviewing a
                                                  number of witnesses and reviewing
       H. Ensuing Investigations                  various reports and dispatch tapes,
                                                  Internal Affairs concluded that the level
        Several state and local agencies          of force used by the police officers
investigated the events surrounding Mr.           “appeared to have been reasonable and
Rivas’s death. One such investigation             did not appear to be excessive.” In
was conducted by the New Jersey                   reaching that conclusion, Internal Affairs
Department of Health and Senior                   noted that the Medical Examiner’s report
Services (the “Health Department”),               contained no findings that suggested
which oversees the provision of basic             excessive force had been used.
life support services by EMTs. The
Health Department reviewed the actions                   With respect to the EMTs,
taken by Rodriguez and Garcia and                 Internal Affairs concluded that
ultimately determined that the care they          Rodriguez had panicked and
provided to Mr. Rivas “deviated                   misleadingly told the police officers that
significantly from acceptable EMT-B               Mr. Rivas had attempted to choke her,
practice.” The Health Department cited            when in fact he had merely touched her
five instances of Rodriguez and Garcia’s          shoulder. Internal Affairs also faulted
failure to follow proper procedure. They          the EMTs for not furnishing the police
were: (1) placing Mr. Rivas face down in          officers with adequate medical
the stretcher; (2) not properly restraining       information about Mr. Rivas’s condition
him in the stretcher; (3) carrying him            and for allowing the police to take
down the stairs head first; (4) failing to        control of the scene.
take adequate spinal immobilization
precautions after Mr. Rivas fell from the                The report issued by Internal
stretcher; and (5) not properly                   Affairs also addressed the allegation that
completing a patient care report. The             one of the police officers had struck Mr.
Health Department concluded that these            Rivas in the head with a flashlight. The
five deviations “collectively                     report noted that this allegation first
demonstrate[d] incompetence or inability          surfaced when Internal Affairs
to provide adequate basic life support            interviewed Rodriguez and Garcia, but
services in violation of N.J.A.C. 8:40A-          that neither of them had mentioned a

                                              8
blow to Mr. Rivas’s head in their initial        but denied all of the remaining motions.
written reports or interviews with the           The District Court explained in an oral
Health Department. Based on those                opinion that it was denying summary
omissions and the fact that Mrs. Rivas           judgment “because of the factual
did not see the officers strike her              circumstances in contest.” The District
husband, Internal Affairs concluded that         Court dismissed the Passaic Police
Rodriguez and Garcia had fabricated that         Department and the City of Passaic
allegation “in order to shift the burden         EMT-Division because those two
away from the EMT’s and onto the                 defendants appeared to be departments
police personnel.”                               or divisions of the City of Passaic, which
                                                 remained responsible for their conduct.
     I. The Rivas Family Files Suit              With the exception of paramedics Walsh
                                                 and Lovitch and the Passaic-Clifton
        The Rivas family filed this              MICU, all of the defendants that
lawsuit in the District Court for the            remained in the lawsuit appealed the
District of New Jersey against the City of       District Court’s ruling and we
Passaic, the Passaic Police Department,          subsequently consolidated the appeals.3
the Passaic EMT Division, the
responding police officers, EMTs Garcia
and Rodriguez, and Paramedics Walsh                     3
                                                          The District Court in its opinion
and Lovitch, Passaic-Clifton MICU                did not address “John Does I through X”
(Mobile Intensive Care Unit), and “John          and did not rule respecting them. The
Does I through X.” The amended                   charging portions of the District Court’s
complaint alleges violations of both             Order dated October 4, 2002 and entered
federal and state law. The federal claim         on October 8, 2002, read as follows:
is based on 42 U.S.C. § 1983, while the
state claims are based on common law                    1) The motions for summary
tort principles, such as failure to train        judgment by defendants City of Passaic,
and supervise, failure to render medical         Police Officer Paul Slater, Police Officer
care, intentional and negligent infliction       Ross Capuana, Police Officer Robert
of emotional distress, and assault and           Callaghan, Police Officer Farallo, Police
battery. Following discovery, the City of        Officer O’Donnell, Police Officer
Passaic, the Passaic Police Department,          Robert Longo, EMT George Garcia, and
and all of the individual defendants             EMT Amalin Rodriguez are denied for
except Paramedics Lovitch and Walsh              the reasons placed on the record by the
and “John Does I through X” moved for            Court on September 30, 2002;
summary judgment.
                                                       2) The motion for summary
     The District Court granted                  judgment by defendant Police Officer G.
summary judgment to Officer Caceres,             Caceres is unopposed and is granted; and

                                             9
           II. APPEALABILITY                       if not filed divests our Court of
                                                   jurisdiction, an appellant’s failure to file
      Before reaching the merits, we               an appellate brief does not deprive a
address our appellate jurisdiction.                federal appellate court of jurisdiction and
                                                   consequently, without more, we do not
    A. Officers Longo and Capuana                  dismiss an appeal if an appellant fails to
                                                   file a brief within the prescribed time
        The Rivas family has moved to              limits. See Marcaida v. Rascoe, 569
dismiss the appeals of Officers Longo              F.2d 828, 830 (5th Cir. 1978). We do,
and Capuana.4 Although both officers               however, retain discretion to dismiss
filed a notice of appeal, they did not             such appeals and we choose to invoke
submit written briefs. Pursuant to                 that sanction here against Officer Longo
Federal Rule of Appellate Procedure                because he has neither submitted a
31(c), “[i]f an appellant fails to file a          written brief nor provided an explanation
brief within the time provided by this             for his failure to do so. Indeed, Officer
rule, or within an extended time, an               Longo did not even respond to the
appellee may move to dismiss the                   motion to dismiss his appeal.
appeal.”
                                                           We will not, however, dismiss
       Unlike a notice of appeal, which            Officer Capuana’s appeal. Unlike
                                                   Officer Longo, Officer Capuana
                                                   submitted a letter from his attorney
       3) Passaic Police Department and            advising us that he was joining in
City of Passaic EMT-Division are hereby            Officer Callaghan’s brief. Although the
dismissed as defendants, it appearing              Rivas family contends that Officer
that they are not separate entities but            Capuana’s “reliance on the Callaghan
departments or divisions of defendant              brief is tantamount to filing no brief at
City of Passaic which has been and                 all” because Officer Callaghan’s brief
remains responsible for their conduct.             “contains no reference to the actions of
       4
          The Rivas family also moved to           Officer Capuana,” we are not persuaded
dismiss the City of Passaic’s appeal,              by that argument. It is true that Officer
asserting that the City of Passaic could           Callaghan’s brief does not focus on
not claim qualified immunity and citing            Officer Capuana’s conduct, but the
Owen v. City of Independence, 445 U.S.             record contains substantial testimony
622 (1980) to that effect. A panel of this         from, and concerning, Officer Capuana.
Court granted the Rivas family’s motion            Moreover, Officers Capuana and
because, absent the availability of a              Callaghan are similarly situated as they,
qualified immunity defense, see infra at           together with Officer Slater, were the
Section II. B., this Court has no appellate        first three officers on the scene and
jurisdiction.                                      together they restrained Mr. Rivas on the

                                              10
living room floor. Consequently, the              has ended. See Cohen v. Beneficial
legal arguments presented in Officer              Industrial Loan Corp., 337 U.S. 541,
Callaghan’s brief apply, in large part, to        546-47 (1949). These “collateral orders”
Officer Capuana as well. For these                are those orders that (i) conclusively
reasons, we deny the Rivas family’s               determine the disputed issue, (ii) resolve
motion to dismiss Officer Capuana’s               an important issue entirely separate from
appeal.                                           the merits of the lawsuit, and (iii) cannot
                                                  be effectively reviewed on appeal from a
    B. Officers Slater, Farallo and               final judgment. See id. at 546; see also
   O’Donnell and EMTs Garcia and                  Coopers & Lybrand v. Livesay, 437 U.S.
              Rodriguez                           463, 468 (1978).

       The Rivas family has also moved                    Under certain circumstances,
to dismiss the appeals of Officers Farallo        orders denying a motion for summary
and O’Donnell and the appeals of EMTs             judgment fall within the scope of the
Garcia and Rodriguez on the ground that           collateral order doctrine. In Mitchell v.
the issues raised in their written briefs         Forsyth, 472 U.S. 511 (1985), the
are evidentiary, and as such are not              Supreme Court explained that an order
eligible for interlocutory review. In             denying a defendant’s motion for
addition, the Rivas family moved to               summary judgment can be immediately
dismiss a portion of Officer Slater’s             appealed so long as: (1) the defendant is
appeal for the same alleged problem.              a public official asserting a qualified
                                                  immunity defense; and (2) the issue on
       As a general rule, federal                 appeal is whether the facts alleged by the
appellate courts have jurisdiction to hear        plaintiff demonstrate a violation of
appeals only from “final decisions” of            clearly established federal law, not
the district courts. See 28 U.S.C. § 1291.        which facts the plaintiff might be able to
Accordingly, we normally do not                   prove at trial. Id. at 528. The Supreme
entertain appeals from a district court           Court explained in Mitchell that this kind
order denying a motion for summary                of summary judgment order could not
judgment because such orders do not put           await an appeal following trial because a
an end to the litigation. See, e.g.,              vital importance of a qualified immunity
McNasby v. Crown Cork & Seal Co.,                 defense is to protect public officials from
832 F.2d 47, 49 (3d Cir. 1987). The               having to stand trial—a right which
United States Supreme Court has                   cannot be effectively vindicated
explained, however, that certain                  following trial. Id. at 526.
“collateral orders” amount to final
decisions for purposes of taking an                      The Mitchell Court found more
appeal even though the district court may         difficult the “separability” question, that
have entered those orders before the case         is, whether the issue of qualified

                                             11
immunity is completely separate from                      established law, whether
the merits of an underlying lawsuit. The                  the law clearly proscribed
Court concluded, however, that: “it                       the actions the defendant
follows from the recognition that                         claims he took.
qualified immunity is in part an
entitlement not to be forced to litigate           Id. at 528 (footnote omitted).
the consequences of official conduct that
a claim of immunity is conceptually                        In Johnson v. Jones, 515 U.S. 304
distinct from the merits of the plaintiff’s        (1995), the Supreme Court made clear
claim that his rights have been violated.”         what it had suggested in Mitchell,
Id. at 527-28. The Court felt that this            namely, that the collateral order doctrine
“conceptual distinctness” made the                 does not permit an appeal from an order
immediately appealable issue “separate”            denying a motion for summary judgment
from the merits of the plaintiff’s claim,          if the issue raised on appeal is “whether
in part because an:                                or not the evidence in the pretrial record
                                                   [is] sufficient to show a genuine issue of
       appellate court reviewing                   fact for trial.” Id. at 307.
       the denial of the
       defendant’s claim of                               Johnson involved a Section 1983
       immunity need not                           claim against five police officers for use
       consider the correctness of                 of excessive force in making an arrest.
       the plaintiff’s version of                  Three of the officers moved for summary
       the facts, nor even                         judgment on qualified immunity
       determine whether the                       grounds, arguing that there was
       plaintiff’s allegations                     insufficient evidence in the record to
       actually state a claim. All                 permit a reasonable juror to find the
       it need determine is a                      officers were present when the plaintiff
       question of law: whether                    was beaten. The district court denied the
       the legal norms allegedly                   motion, concluding that there was
       violated by the defendant                   enough evidence to defeat summary
       were clearly established at                 judgment, and the officers appealed
       the time of the challenged                  invoking the collateral order doctrine.
       actions or, in cases where                  The Supreme Court unanimously held
       the district court has                      that appellate jurisdiction was lacking,
       denied summary judgment                     explaining that Mitchell did not permit
       for the defendant on the                    an appeal from an order denying
       ground that even under the                  summary judgment if the order, “though
       defendant’s version of the                  entered in a ‘qualified immunity’ case,
       facts the defendant’s                       determines only a question of ‘evidence
       conduct violated clearly                    sufficiency,’ i.e., which facts a party

                                              12
may, or may not, be able to prove at              performance of official duties,” we have
trial.” Id. at 313.                               also determined that the State of New
                                                  Jersey confers no such right. See Brown
        We recently announced that we             v. Grabowski, 922 F.2d 1097, 1107,
understood Johnson to mean that, “if a            1109 (3d Cir. 1990).5 Consequently, we
defendant in a constitutional tort case           lack jurisdiction to consider Officers
moves for summary judgment based on               Farallo’s and O’Donnell’s arguments
qualified immunity and the district court         that the District Court erred in denying
denies the motion, we lack jurisdiction to        their defense of qualified immunity
consider whether the district court               under New Jersey’s Tort Claims Act.
correctly identified the set of facts that
the summary judgment record is                            We also dismiss so much of the
sufficient to prove; but we possess               appeals of Officers Slater and EMTs
jurisdiction to review whether the set of         Garcia and Rodriguez to the extent they
facts identified by the district court is         raise issues of causation. Officer Slater
sufficient to establish a violation of a          argues that he cannot be held liable
clearly established constitutional right.”        because Mr. Rivas allegedly had an
Ziccardi v. City of Philadelpia, 288 F.3d         enlarged heart and therefore died from
57, 61 (3d Cir. 2002) (footnote omitted).         natural causes. In a similar vein, Garcia
                                                  and Rodriguez contend that none of their
        Against this background, we turn          actions, omissions, or inactions
to the instant appeals. As noted above,           proximately caused Mr. Rivas’s death.
the Rivas family contends that Officers           While we are aware that a Section 1983
Farallo, Slater and O’Donnell and EMTs            plaintiff must demonstrate that the
Garcia and Rodriguez have improperly              defendant’s actions were the proximate
raised evidentiary issues on appeal.
After carefully reviewing the written
briefs, we have decided not to dismiss in                5
                                                            In Brown, we were called upon
their entirety any of the appeals. We             to decide whether New Jersey law
find, however, that a number of the               bestowed upon its officials the right to
issues raised in the briefs are not               not stand trial. After carefully
properly before us. For example, we do            examining New Jersey’s statutory and
not have jurisdiction to review the               common law, and noting the general
District Court’s denial of qualified              reluctance by New Jersey state courts to
immunity to the defendants on the                 entertain interlocutory appeals, we
pendent state law claims. While we have           concluded that New Jersey law protected
recognized that such claims are                   state officials only from ultimate liability
immediately appealable “if the state has          and did not give them immunity from
conferred an underlying substantive               litigation. See Brown, 922 F.2d at 1109.
immunity from suits arising from the

                                             13
cause of the violation of his federally                  The threshold issue in any Section
protected right, see Martinez v.                  1983 lawsuit is whether the plaintiff has
California, 444 U.S. 277, 284-85 (1980),          sufficiently alleged a deprivation of a
the presence of the requisite causation is        constitutional right. Estate of Smith v.
normally a question of fact for the jury.         Marasco, 318 F.3d 497, 505 (3d Cir.
See Estate of Bailey v. County of York,           2003). Because Section 1983 does not
768 F.2d 503, 511 (3d Cir. 1985),                 create any substantive rights, the plaintiff
overruled on other grounds by                     must be able to point to an independent
DeShaney v. Winnebago County Dep’t of             constitutional or statutory right. Brown
Social Servs., 489 U.S. 189 (1989). As            v. Commonwealth of Pa. Dep’t of Health
such, evidentiary issues bearing on the           Emer. Med. Servs. Training Inst., 318
merits of the counts do not qualify under         F.3d 473, 477 (3d Cir. 2003).
Mitchell for interlocutory review.
                                                           A. EMTs Garcia and
       We find that the remaining issues,           Rodriguez—“State-Created Danger”
which we address below, raise legal
questions and therefore are properly                      The Rivas family contends that
raised on appeal.                                 Garcia and Rodriguez are liable because
                                                  they allegedly exposed Mr. Rivas to a
   III. STANDARD OF REVIEW                        danger that he otherwise would not have
                                                  encountered.6 The Rivas family refers to
        On review of a denial of summary          the “state-created danger” theory of
judgment, we apply a plenary standard of          liability. While our consideration of the
review. See Fed. Home Loan Mortgage
Corp. v. Scottsdale Ins. Co., 316 F.3d
431, 443 (3d Cir. 2003). In doing so, we                 6
                                                            The Rivas family also asserts
assess the record using the same
                                                  that EMTs Garcia and Rodriguez
summary judgment standard that guides
                                                  violated Mr. Rivas’s substantive due
the district courts. See Farrell v.
                                                  process rights by failing to provide Mr.
Planters Lifesavers Co., 206 F.3d 271,
                                                  Rivas with any medical care while he
278 (3d Cir. 2000). To prevail on a
                                                  was in police custody (a.k.a. the “special
motion for summary judgment, the
                                                  relationship” doctrine). The District
moving party must demonstrate “that
                                                  Court did not address this claim.
there is no genuine issue as to any
                                                  Although it did not comment on this
material fact and that the moving party is
                                                  argument, we surmise it did not
entitled to a judgment as a matter of
                                                  specifically address this claim because of
law.” Fed. R. Civ. P. 56(c).
                                                  its ultimate ruling. Our review of the
                                                  record reveals that the elements for a
   IV. THE MERITS OF THE                          special relationship claim do not exist
SUMMARY JUDGMENT MOTIONS                          under the circumstances of this case.

                                             14
“state-created danger” doctrine started                    Applying Kneipp’s four elements
with Brown v. Grabowski, 922 F.2d                   here, we find that the Rivas family has
1097 (3d Cir. 1990), it was not until               adduced sufficient evidence (evidence
Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.             which the EMTs dispute), as to whether
1996) that we held a viable claim could             Garcia and Rodriguez deprived Mr.
be asserted where the state had created a           Rivas of his right to be free from a state-
danger. We explained in Kneipp that in              created danger.
order to state such a claim a plaintiff
must show: (1) that the harm ultimately                     First, was the harm to Mr. Rivas
caused to the plaintiff was foreseeable             fairly foreseeable? On the morning in
and fairly direct; (2) the state actor acted        question, it is undisputed that Mr. Rivas
in willful disregard for the plaintiff’s            was suffering from one or more seizures.
safety; (3) there was some relationship             Both Garcia and Rodriguez knew that
between the state and the plaintiff; and            Mr. Rivas was either in the throes of, or
(4) the state actor used his authority to           coming out of, a seizure when they
create an opportunity for danger that               arrived. Both Garcia and Rodriguez had
otherwise would not have existed. Id. at            learned during their medical training that
1208.                                               seizure victims should not be restrained,
                                                    even when the convulsions appear to
        In Kneipp, a police officer                 have ended. They had also been
stopped a married couple returning home             instructed to ensure that a patient’s
on foot after a night of drinking at a              airway should remain open and
local tavern. The police determined that            unobstructed.7 They called for police
both individuals were intoxicated, but
the husband was given permission to
leave, and he assumed the police would                     7
                                                              At his deposition, Garcia was
take his wife either to the hospital or the         asked what his training had taught him to
police station. Instead, the police let the         do when he encountered a seizure
woman proceed home on foot alone.                   victim. Garcia responded that he had
She was found later that night at the               been instructed to “try to let the patient
bottom of an embankment, where she                  have the seizure, . . . give oxygen, call
had fallen and suffered debilitating                medics as soon as possible and transport
injuries as a result of her exposure to the         the patient.” Rodriguez gave similar
cold. On those facts, we held that there            testimony at her deposition when she
was a triable issue as to whether the               testified that, “[w]henever a patient is
police had affirmatively placed the wife            having a seizure, you have to let the
in a position of danger such that she had           patient finish with the seizure, ALS
made a viable showing under Section                 [Advanced Life Support] has to be there,
1983. See id. at 1201-03.                           we have to give oxygen, assess vital
                                                    signs.”

                                               15
assistance shortly after arriving on the          Supreme Court explained that only an
scene.                                            “intent to harm” standard of culpability
                                                  would shock the conscience. Id. at 853
        According to the testimony of one         (quoting Whitley v. Albers, 475 U.S.
of the police officers, Garcia and                312, 320 (1986)).
Rodriguez informed the police that Mr.
Rivas had assaulted one of them, but did                  Because conduct that “shocks the
not inform the police about Mr. Rivas’s           conscience” under one set of
medical condition or warn the officers            circumstances may not have the same
that Mr. Rivas should not be restrained.          effect under a different set of
Given this evidence and the inferences            circumstances, the standard of
most favorable to the Rivas family as the         culpability for a substantive due process
non-movants, a reasonable jury could              violation can vary depending on the
find that the harm which befell Mr.               situation. In Miller v. City of
Rivas was a foreseeable and fairly direct         Philadelphia, 174 F.3d 368 (3d Cir.
result of the actions taken by Garcia and         1999), for example, we recognized that a
Rodriguez.                                        social worker who attempts to remove a
                                                  child from his or her parents’ custody
        Second, we conclude that the              does not, in contrast to a police officer
Rivas family has produced sufficient,             engaged in a high-speed pursuit, have to
albeit disputed, evidence to raise a              make split-second decisions. Id. at 375.
material issue as to whether Garcia and           Nevertheless, we noted that a social
Rodriguez exhibited the standard of               worker in those circumstances must act
culpability necessary to impose liability.        with some urgency and does not have the
Although Kneipp remains good law                  luxury of proceeding in a deliberate
today, recent cases have refined this             manner. Id. We therefore held that the
second element in the four-part test.             “shock-the-conscience” test could be met
Most notably, the Supreme Court has               only by adducing evidence that the social
held, in the context of a high-speed              worker’s actions were grossly negligent
police chase resulting in death, that a           or arbitrary, a less onerous standard than
Section 1983 plaintiff had to                     an intent-to-harm standard. Id. at 375-
demonstrate that the police officers’             76.
conduct “shocked the conscience” in
order to establish a constitutional                      In Ziccardi v. City of
violation under the Due Process Clause.           Philadelphia, 288 F.3d 57 (3d Cir.
County of Sacramento v. Lewis, 523 U.S.           2002)—a case involving emergency
833 (1998). Because the officers in that          medical actions—we further elaborated
case had to act “‘in haste, under                 on the necessary state of mind to prove
pressure, and frequently without the              due process violations in situations
luxury of a second chance,’” the                  where a state actor must act with some

                                             16
urgency. We noted that Miller, at 174               Id.
F.3d at 375-76, “appears to have
demanded proof of something less than                       Thus, the Rivas family can only
knowledge that the harm was practically             meet the second element of the Kneipp
certain but more than knowledge that                test by presenting evidence that Garcia’s
there was a substantial risk that the harm          and Rodriguez’s conduct shocks the
would occur.” Ziccardi, 288 F.3d at 66.             conscience by consciously disregarding a
We ultimately settled on the following              substantial risk that Mr. Rivas would be
test: “[W]e understand Miller to require            seriously harmed by their actions.
in a case [where an official had to act             Rodriguez and Garcia both claim that
with some urgency], proof that the                  Mr. Rivas was physically combative and
defendants consciously disregarded, not             attempted to strangle Rodriguez when
just a substantial risk, but a great risk           she first entered the apartment. If that
that serious harm would result . . . .” Id.         allegation is true, then it was reasonable
                                                    for them to call for police back-up.8 In
         We subsequently held that the              fact, Garcia testified that the attack on
“shock-the-conscience” standard also                Rodriguez led him to believe that Mr.
applied to emergency medical personnel.             Rivas was a mental patient, not a seizure
In Brown v. Commonwealth of                         victim.
Pennsylvania Department of Health
Emergency Medical Services Training                        On the other hand, there is
Institute, 318 F.3d 473 (3d Cir. 2003),             evidence in the record which suggests
the parents of an infant who died of                that Mr. Rivas did not attack Rodriguez
asphyxia sued, among others, two EMTs               and that Rodriguez simply panicked at
who had responded to the 911 call. The              the sight of Mr. Rivas walking towards
parents alleged, among other things, that           her with his arms extended in front of
the EMTs had gotten lost on their way to            him. A jury crediting this version could
the child’s residence and thereby a delay           find that Rodriguez and Garcia
occurred in removing a grape from the               unnecessarily called for police
child’s throat. Id. at 481. We                      assistance. More importantly, it would
announced in Brown that “the ‘shocks                then appear that there had been a
the conscience’ standard should apply in            misrepresentation to the police that Mr.
all substantive due process cases if the            Rivas had attacked Rodriguez, leading to
state actor had to act with some                    the conclusion that Garcia and
urgency.” Id. at 480. We further held               Rodriguez neglected to tell the police
that the “shock-the-conscience” standard
“applied to the actions of emergency
medical personnel—who likewise have                        8
                                                             Rodriguez testified that she had
little time for reflection, typically making        been trained to call for backup if she
decisions in haste and under pressure.”             encountered a combative patient.

                                               17
that Mr. Rivas was suffering from a                        The third element in the Kneipp
seizure and should not be restrained.9             test inquires whether there existed some
                                                   relationship between the state and the
        In sum, these contrasting facts            plaintiff. The relationship requirement
satisfy us that summary judgment could             under the state-created danger theory
not be granted at this stage. A jury could         contemplates a degree of contact such
find, based on this version of events, that        that the plaintiff was a foreseeable victim
Garcia and Rodriguez consciously                   of the defendant’s acts in a tort sense.
disregarded a great risk of serious harm           See Kneipp, 95 F.3d at 1209 n.22.
to Mr. Rivas by misrepresenting the
assault and then abandoning Mr. Rivas
to the police, particularly since EMTs are
supposed to render aid to those in need            Lower Merion, 313 F.3d 144 (3d Cir.
of medical assistance. If Garcia and               2002), in which the district court had
Rodriguez misrepresented the assault,              held, without elaboration, that the state
not only did they abdicate their duty to           officials were not entitled to summary
render medical assistance, but they                judgment on the basis of qualified
placed Mr. Rivas in greater danger by              immunity because the plaintiffs had
falsely accusing him of acting violently.          raised genuine issues of material fact.
A jury could find, depending on whose              We announced on appeal a new,
testimony it credits, that such conduct            prospective rule requiring district courts
shocks the conscience.10                           to “specify those material facts that are
                                                   and are not subject to genuine dispute
       9
         Of course, this fact is also in           and explain their materiality.” Id. at 146.
dispute because Rodriguez and Garcia               This rule was necessary, the Court
signed an incident report which states             explained, so that future panels could
that Garcia informed the police officers           carry out their appellate review function
about Mr. Rivas’s medical history when             without exceeding the limits of their
they arrived at the apartment. Garcia,             jurisdiction. Id. However, our reading
however, seemingly contradicted this               of the record persuades us that, before
account at his deposition. When asked if           reaching the merits of the summary
he said anything to the police officers            judgment motions, the District Court
before they brought Mr. Rivas out of the           discussed in some detail the underlying
bathroom, Garcia flatly answered, “No.”            facts and, in doing so, identified several
                                                   disputed facts. To the extent there are
       10
          Garcia and Rodriguez argue on            any gaps in the District Court’s factual
appeal that the District Court failed to           recitation, we can “determine what facts
explicitly find which material facts are in        the district court, in the light most
dispute. This argument rests largely on            favorable to the nonmoving party, likely
our holding in Forbes v. Township of               assumed.” Johnson, 515 U.S. at 319.

                                              18
        In Morse v. Lower Merion School           [the relationship] determination is
District, 132 F.3d 902 (3d Cir. 1997), we         foreseeability”).
explained that the relationship must be
sufficiently close to exclude “those                      The last element of the Kneipp
instances where the state actor creates           test asks whether the state actor used his
only a threat to the general population,”         or her authority to create an opportunity,
but not so restrictive as to limit “the           which otherwise would not have existed,
scope of § 1983 to those instances where          for the specific harm to occur. See
a specific individual is placed in                Kneipp, 95 F.3d at 1209. A reasonable
danger.” Id. at 913. Attempting to find           factfinder could conclude that the
a workable medium between those two               EMTs’ decision to call for police backup
ends of the spectrum, we held in Morse            and then (1) inform the officers on their
that the plaintiff must be “a member of a         arrival that Mr. Rivas had assaulted
discrete class of persons subjected to the        Rodriguez, (2) not advise the officers
potential harm brought about by the               about Mr. Rivas’s medical condition,
state’s actions.” Id.                             and (3) abandon control over the
                                                  situation, when taken together, created
         On the existing record, a jury           an opportunity for harm that would not
could find that Mr. Rivas was a member            have otherwise existed. Were it not for
of a “discrete class” of individuals              those acts, Mr. Rivas presumably could
subjected to a potential harm caused by           have remained in the apartment’s
Garcia and Rodriguez’s actions. The               bathroom for the duration of his seizure
EMTs were responding to a 911 call.               without incident.
The very purpose of their visit to the
Rivas household was to provide medical               B. The Police Officers—Excessive
care to Mr. Rivas and to reduce, to the                           Force
extent possible, the amount of danger in
which he found himself as a result of his                 The Rivas family asserts that the
seizure. If the jury credits Officer              police used excessive force against Mr.
Callaghan’s testimony that he and                 Rivas during their encounter with him
Officer Slater were told by the EMTs              and thereby violated his constitutionally
that Mr. Rivas physically assaulted               protected right. The Supreme Court has
Rodriguez but were not given any                  held that all claims of excessive force by
information about his medical condition,          police officers, in the context of an
it is foreseeable that Mr. Rivas would be         arrest, investigatory stop, or other
among the “discrete class” of persons             “seizure,” should be analyzed under the
placed in harm’s way as a result of               Fourth Amendment. Graham v. Connor,
Garcia and Rodriguez’s actions. See               490 U.S. 386, 395 (1989). “A claim for
Morse, 132 F.3d at 913 (explaining that           excessive force under the Fourth
“[t]he primary focus when making . . .            Amendment requires a plaintiff to show

                                             19
that a seizure occurred and that it was            police action are themselves violent or
unreasonable.” Curley v. Klem, 298                 dangerous, the duration of the action,
F.3d 271, 279 (3d Cir. 2002). A seizure            whether the action takes place in the
occurs “[w]henever an officer restrains            context of effecting an arrest, the
the freedom of a person to walk away.”             possibility that the suspect may be
Tennessee v. Garner, 471 U.S. 1, 7                 armed, and the number of persons with
(1985). Because it is undisputed that a            whom the police officers must contend at
seizure occurred in this case, the only            one time.” Sharrar v. Felsing, 128 F.3d
question is whether it was unreasonable.           810, 822 (3d Cir.1997). The
                                                   reasonableness of the use of force is
       An excessive force claim must be            normally an issue for the jury. See
evaluated “from the perspective of a               Abraham v. Raso, 183 F.3d 279, 290 (3d
reasonable officer on the scene, rather            Cir. 1999).
than with the 20/20 vision of hindsight”
and “must embody the allowance for the                    While some courts “freeze the
fact that police officers are often forced         time frame” and consider only the facts
to make split-second judgments—in                  and circumstances at the precise moment
circumstances that are often tense,                that excessive force is applied, other
uncertain, and rapidly evolving—about              courts, including this one, have
the amount of force that is necessary in a         considered all of the relevant facts and
particular situation.” Graham, 490 U.S.            circumstances leading up to the time that
at 396-97. The inquiry turns on                    the officers allegedly used excessive
“objective reasonableness,” meaning that           force. See, e.g., Abraham, 183 F.3d at
the standard is whether the police                 291.
officer’s “actions [were] ‘objectively
reasonable’ in light of the facts and               1. Officers Capuana, Callaghan, and
circumstances” facing the officer,                                 Slater
regardless of the officer’s intent or
motivation. Id. at 397.                                   The Rivas family emphasizes that
                                                   Mr. Rivas committed no crime and
        Factors to consider in making a            presented no threat to anyone when
determination of reasonableness include            Officers Slater, Callaghan and Capuana
“the severity of the crime at issue,               arrived at the Rivas household. The
whether the suspect poses an immediate             family claims the police officers were
threat to the safety of the officers or            informed of Mr. Rivas’s medical
others, and whether he actively is                 condition upon entering the apartment
resisting arrest or attempting to evade            and should have allowed Mr. Rivas to
arrest by flight.” Graham, 490 U.S. at             remain in the bathroom until the
396. Additional factors include “the               paramedics, who were in transit, arrived.
possibility that the persons subject to the        Instead, the officers ordered Mr. Rivas to

                                              20
leave the bathroom. The family claims             those facts alleged by [the plaintiff],
Mr. Rivas had a second seizure as he              taken in the light most favorable to him.”
walked down the hallway and the police            Curley, 298 F.3d at 280. As the District
officers responded by throwing him to             Court pointed out, “Mrs. Rivas argues
the ground. Officer Capuana’s                     that her husband could not have reached
testimony could support the theory that           for anything since he appeared to be in
Mr. Rivas had a second seizure as he              the middle of another seizure and his
passed through the kitchen.                       face was pushed into the floor.” We
                                                  explained in Bennett v. Murphy, 274
        The Rivas family emphasizes that          F.3d 133, 137 (3d Cir. 2002), that a
the force escalated after Mr. Rivas was           police officer who is accused of having
on the living room floor. Officer                 used excessive force is not “precluded
Callaghan allegedly sat on Mr. Rivas’s            from arguing that he reasonably
back while the other two officers                 perceived the facts to be different from
restrained his legs and attempted to place        those alleged by the plaintiff,” but that
handcuffs on Mr. Rivas. The family                “contention . . . must be considered at
contends the officers repeatedly pushed           trial.” Id. at 137 (emphasis added). As
Mr. Rivas’s face into the floor, which            such, we must assume at the summary
made it difficult for him to breathe.             judgment stage that Mr. Rivas, who was
According to testimony given by the               laying face down on the floor, was
EMTs, Officer Callaghan jammed a                  simply flailing his arms due to his
flashlight into Mr. Rivas’s mouth at one          seizure.
point during the struggle and later struck
him in the head with the same                             When viewed in the light most
flashlight. 11                                    favorable to the Rivas family, these facts
                                                  are sufficient to support the claim that
       The police officers contend that           Officers Callaghan, Slater and Capuana
the level of force they employed was              may have used excessive force to quiet
necessary because Mr. Rivas bit them              Mr. Rivas. See Curley, 298 F.3d at 280
and tried to grab Officer Callaghan’s             (finding unreasonable seizure where
weapon. We must, however, at the                  police officer mistakenly shot port
summary judgment stage “consider only             authority officer). Once the officers
                                                  ordered Mr. Rivas out of the bathroom,
                                                  they effected a legal seizure by
       11
           The medical examiner noted             restraining his freedom of movement.
that two of Mr. Rivas’s front teeth were          Assuming that Mr. Rivas began to have
partially dislodged, which may                    a medical seizure as he and the officers
corroborate the claim that Officer                walked through the kitchen (although his
Callaghan forced a flashlight into Mr.            condition may not have been recognized
Rivas’s mouth.                                    by the officers), it was for the jury to

                                             21
decide if the ensuing “takedown” and              vomited, clear signs that he was not well.
force applied by the officers was                 There was also testimony that a pool of
objectively reasonable.                           blood had formed around Mr. Rivas’s
                                                  head on the porch.
   2. Officers Farallo and O’Donnell
                                                          A reasonable jury could find from
        The Rivas family alleges that             these facts that Mr. Rivas did not present
Officers Farallo and O’Donnell used               a threat to anyone’s safety as he lay in a
excessive force on Mr. Rivas after he fell        prone position on the enclosed porch,
out of the stretcher on the way down the          hands and ankles secured behind his
stairs. Specifically, the Rivas family            back. Yet there is testimony in the
alleges that, “[w]hile Rivas was on the           record that, in order to restrain Mr. Rivas
porch, face down, bound hand and foot,            and subdue him, Officers Farallo and
having sustained a head injury, bleeding          O’Donnell, along with Officer Longo,
from the nose and mouth, and having               collectively pressed down on Mr.
been unconscious just minutes before his          Rivas’s back with all of their weight
fall, Farallo and O’Donnell, along with           until he became still and unconscious. It
Officer Longo, collectively pressed               was immediately following these acts
down on his back with the weight of               that the paramedics noticed Mr. Rivas
their bodies until he again lost                  was cyanotic and had stopped breathing.
consciousness, became cyanotic, and               Assuming that Mr. Rivas was
died of asphyxiation.”                            handcuffed and had his ankles tied at
                                                  that time, a reasonable jury could find
        O’Donnell testified that,                 that the continued use of force against
following Mr. Rivas’s fall from the               Mr. Rivas was excessive. See, e.g.,
stretcher, he helped carry Mr. Rivas from         Clash v. Beatty, 77 F.3d 1045 (7th Cir.
the stairs to the porch landing, where Mr.        1996).
Rivas was once again placed face down.
Mr. Rivas’s hands were handcuffed                      C. Qualified Immunity—EMTs
behind his back and there is evidence
suggesting that Mr. Rivas’s ankles were                   We turn now to the question of
still bound by cloth restraints, which had        whether Garcia and Rodriguez are
been applied by Garcia before Mr. Rivas           entitled to qualified immunity. An
was removed from the living room.                 appellate court reviewing the denial of a
                                                  defendant’s claim of qualified immunity
       Officer O’Donnell, who helped              must ask itself “whether the legal norms
carry Mr. Rivas down the stairs, must             allegedly violated by the defendant were
have known that Mr. Rivas had just                clearly established at the time of the
fallen out of the stretcher head first and        challenged actions.” Mitchell, 472 U.S.
had lost control of his bowels and had            at 528. Because the incidents in

                                             22
question occurred more than two years              left minor children alone in abandoned
after we issued our decision in Kneipp,            car on the side of highway deprived
supra, it follows that the right to be free        children of their due process rights).
from a state-created danger was clearly            Both of those cases involved public
established by this Court by November              officials abandoning citizens in
of 1998, when Garcia and Rodriguez                 dangerous situations.
responded to the Rivas family’s 911 call
for medical assistance. Our inquiry does                   We discern from these cases that,
not, however, end there.                           as of November 1998, our case law had
                                                   established the general proposition that
        It is not enough that the                  state actors may not abandon a private
constitutional right was clearly                   citizen in a dangerous situation, provided
established in a general sense at the time         that the state actors are aware of the risk
the incident occurred. Rather, “[t]he              of serious harm and are partly
contours of the right must be sufficiently         responsible for creating the opportunity
clear that a reasonable official would             for that harm to happen. As the Supreme
understand that what he is doing violates          Court explained in Hope v. Pelzer, 536
that right.” Anderson v. Creighton, 483            U.S. 730 (2002), in some cases “a
U.S. 635, 640 (1987). “The relevant,               general constitutional rule already
dispositive inquiry in determining                 identified in the decisional law may
whether a right is clearly established is          apply with obvious clarity to the specific
whether it would be clear to a reasonable          conduct in question, even though ‘the
[official] that his conduct was unlawful           very action in question has [not]
in the situation he confronted.” Saucier           previously been held unlawful.’” Id. at
v. Katz, 533 U.S. 194, 202 (2001).                 741 (quoting U.S. v. Lanier, 520 U.S.
                                                   259, 263 (1997) (citation omitted)).
        In Kneipp, which we discussed
earlier, public officials abandoned a                     In sum, we find that the pre-
victim with whom they had direct                   existing law of “state-created danger”
contact. In reaching our decision in               jurisprudence was clearly established.
Kneipp, we relied on, among others, the            As such, it was sufficient to put Garcia
following cases: Reed v. Gardner, 986              and Rodriguez on notice that their
F.2d 1122, 1127 (7th Cir. 1993) (police            conduct, if deemed unlawful, would not
officer who removed a sober driver and             shield them with immunity.12
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. §                    12
                                                             We note that Garcia and
1983) and White v. Rochford, 592 F.2d              Rodriguez do not argue on appeal that
381, 385 (7th Cir. 1979) (police officers          they are entitled to qualified immunity
who arrested uncle for drag racing and             because the law was not clearly

                                              23
D. Qualified Immunity—Police Officers             apply here. In sum: under all the
                                                  circumstances relevant to the officers’
        The Supreme Court held in                 restraint and handling of Mr. Rivas, did
Saucier v. Katz, 533 U.S. 194 (2001)              their actions constitute excessive force
that qualified immunity also applies to           and, if they did, was their violation of
Fourth Amendment excessive force                  Mr. Rivas’s constitutional right a clearly
claims. Id. at 206. Consequently, even            established one? Mitchell, 472 U.S. at
if an officer uses force that was                 528. Because the facts to be determined
objectively unreasonable, he may                  are disputed and as such are the function
nevertheless be protected from                    of the jury, the District Court did not err
individual monetary liability if he               in denying summary judgment to the
reasonably believed, based on the facts           officers.
and circumstances known to him, that
the force used was lawful. Stated                                     V.
somewhat differently, an official who
violated an individual’s constitutional                  Because this interlocutory appeal
right, but not a clearly established              decides only whether the District Court
constitutional right, may have acted in an        properly held that the defendants were
objectively reasonable manner and                 not entitled to summary judgment on the
would thereby be protected from liability         basis of a qualified immunity defense,
by qualified immunity. “The relevant,             we do not consider nor do we address
dispositive inquiry in determining                the evidentiary arguments raised in the
whether a right is clearly established is         appellants’ briefs.13 Ziccardi, 288 F.3d
whether it would be clear to a reasonable         at 61.
officer that his conduct was unlawful in
the situation he confronted.” Id. at 202.                             VI.

       We have discussed this second                    We will affirm the District Court
prong of a qualified immunity defense             Judge’s denial of the summary judgment
above when we addressed the Rivas’s               motions filed by EMTs Garcia and
claims against the EMTs. The factors              Rodriguez and by Police Officers Slater,
we noted there are the same factors that          Callaghan, Capuana, Farallo, and
                                                  O’Donnell. The District Court Judge

established as of November 1998.
                                                         13
Instead, they argue that they are entitled                   We have earlier identified
to qualified immunity because they did            some of the evidentiary arguments that
not deprive Mr. Rivas of a constitutional         appear in the various appellants’ briefs
right. We have already addressed that             (e.g., proximate cause, pendent state
argument in a prior section.                      claims, etc.).

                                             24
properly denied their motions, which                      I. The Kneipp test
were based on qualified immunity,
because of the contested factual                          The District Court relied on the
circumstances leading to the harm                  Kneipp test in its analysis of state-created
suffered by Mr. Rivas. We will also                danger. In so doing, it cited principles
dismiss the appeal of Police Officer               that have since been refined, if not
Longo.14                                           superseded altogether. The four
                                                   elements we identified in Kneipp were:
AMBRO, Circuit Judge, concurring in                “1) the harm ultimately caused was
part                                               foreseeable and fairly direct; (2) the state
                                                   actor acted in willful disregard for the
        I join wholeheartedly in Judge             safety of the plaintiff; (3) there existed
Garth’s excellent analysis affirming the           some relationship between the state and
District Court’s denial of summary                 the plaintiff; [and] (4) the state actors
judgment to the police officers. While I           used their authority to create an
concur in the judgment as to the EMTs, I           opportunity that otherwise would not
write separately to emphasize that, in             have existed for the third party’s crime to
light of the high threshold for subjecting         occur.” Id. at 1208 (citing Mark v.
EMTs to liability on a state action                Borough of Hatboro, 51 F.3d 1137,
theory, the facts of this case would               1152 (3d Cir. 1995)).
support liability for the EMTs under a
very limited set of circumstances only.                   Judge Garth has noted the most
Before doing so, I consider the changes            important of the recent modifications to
to the four-prong test applicable to state-        the Kneipp test, which involved its
created dangers, set out in Kneipp v.              second prong: in light of the Supreme
Tedder, 95 F.3d 1199 (3d Cir. 1996).               Court’s decision in County of
                                                   Sacramento v. Lewis, 523 U.S. 833, 845-
                                                   47 (1998), a state actor will be liable
                                                   only for conduct that “shocks the
                                                   conscience”; it is no longer enough that
                                                   she or he has acted in “willful disregard”
                                                   of the plaintiff’s safety. Brown v. Pa.
       14
          The Rivas family has filed a             Dep’t of Health Emergency Med.
motion to strike certain documents in the          Training Inst., 318 F.3d 473, 480 (3d
appendix on the ground that those                  Cir. 2003).
documents allegedly were not before the
District Court when it issued its ruling.                 This modification, however, is not
Because we have not relied on any of the           the only one. In Morse v. Lower Merion
disputed documents, we deny the                    School District, 132 F.3d 902 (3d Cir.
motion.                                            1997), we reconsidered the third prong

                                              25
of the Kneipp test and suggested that              tempts them to allege constitutional
there may be a “relationship” between              violations where none exist.
the state and the plaintiff merely because
the plaintiff was a foreseeable victim,                II. Does the conduct of the
either individually or as a member of a            EMTs shock the conscience?
discrete class. Id. at 914. Moreover, we
have written “third party” out of the                     I am persuaded by Judge Garth’s
fourth prong of the test. We recently              analysis that the plaintiffs have alleged
noted, “The fourth element’s reference to          sufficient facts for a jury to find that
a ‘third party’s crime’ arises from the            Garcia’s and Rodriguez’s conduct
doctrine’s origin as an exception to the           shocks the conscience. I stress,
general rule that the state does not have a        however, that only a very specific—and
general affirmative obligation to protect          highly unlikely—factual resolution
its citizens from the violent acts of              would warrant such a finding.
private individuals. The courts,
however, have not limited the doctrine to                 Whether defendants’ behavior is
cases where third parties caused the               conscience-shocking depends on the
harm. . . .” Estate of Smith v. Marasco,           particular circumstances of a case.
318 F.3d 497, 506 (3d Cir. 2003)                   Miller v. City of Philadelphia, 174 F.3d
(internal citation omitted).                       368, 375 (3d Cir. 1999). The Supreme
                                                   Court has, however, provided guidance
        In light of these substantial              for application of the standard:
modifications to the Kneipp test, Kneipp
as shorthand is a misnomer. To be sure,                   We have . . . rejected the
Judge Garth has mentioned the relevant                    lowest common
refinements and considered this case by                   denominator of customary
reference to the adapted rubric. I                        tort liability as any mark of
nonetheless believe that continuing to                    sufficiently shocking
cite the Kneipp test as “good law,” as                    conduct, and have held that
Judge Garth does, minimizes the extent                    the Constitution does not
to which the law of state-created danger                  guarantee due care on the
in our Circuit has changed. And while                     part of state officials;
the changes to the third and fourth                       liability for negligently
prongs have expanded the state-created                    inflicted harm is
danger doctrine, the substitution of                      categorically beneath the
“shocks the conscience” for “willful                      threshold of constitutional
disregard” is a significant limitation. In                due process. . . . It is, on
this context, our continued adherence to                  the contrary, behavior at
Kneipp, if only in name, colors                           the other end of the
plaintiffs’ perception of their burden and                culpability spectrum that

                                              26
       would most probably                          services if it chooses to provide them.”
       support a substantive due                    Brown, 318 F.3d at 478.
       process claim; conduct
                                                            Thus, in order to “shock the
       intended to injure in some
                                                    conscience,” rescue services must be
       way unjustifiable by any
                                                    more than incompetent. In fact, in light
       government interest is the
                                                    of our decision in Ziccardi v. City of
       sort of official action most
                                                    Philadelphia, 288 F.3d 57 (3d Cir.
       likely to rise to the
                                                    2002), shocking the conscience entails
       conscience-shocking level.
                                                    more even “than subjective deliberate
Lewis, 523 U.S. at 848-49. From Lewis               indifference,” id. at 65, the standard
we have gleaned several lessons. “The               applied by the District Court in this case.
first . . . is that negligence is not enough         Rather, plaintiffs must provide “proof of
to shock the conscience under any                   something less than knowledge that the
circumstances. The second is that more              harm was practically certain but more
culpability is required to shock the                than knowledge that there was a
conscience to the extent that state actors          substantial risk that the harm would
are required to act promptly and under              occur.” Id. at 66. In other words, the
pressure.” Schieber v. City of                      plaintiffs here must demonstrate that the
Philadelphia, 320 F.3d 409, 419 (3d Cir.            EMTs “consciously disregarded, not just
2003). Moreover, when state actors                  a substantial risk, but a great risk that
must balance competing, legitimate                  serious harm would result” from their
interests, the threshold of culpability is          conduct. Id. (emphasis added).
higher. Id.
                                                           On the facts of this case, I doubt
        We have invoked these principles            very much that the plaintiffs will be able
in setting the standard of culpability              to demonstrate this added element of
applicable to EMTs. In Brown, we                    culpability. While the EMTs may have
considered a § 1983 claim against EMTs              failed properly to assist Rivas, they
and the City of Philadelphia alleging               certainly could not have expected, when
violation of the due process rights of a            they called for assistance in subduing a
child who died of choking following a               patient, that the police would subject the
botched rescue attempt. We emphasized               patient to physical abuse. Perhaps upon
that “there is no federal constitutional            witnessing the subsequent mistreatment
right to rescue services, competent or              of their patient they should have
otherwise. Moreover, because the Due                intervened. Almost certainly they should
Process Clause does not require the State           have offered medical advice (e.g., a
to provide rescue services, it follows that         patient experiencing a seizure should not
we cannot interpret that clause so as to            be touched). But it would be a harsh
place an affirmative obligation on the              burden to require an EMT to insert
State to provide competent rescue                   herself into a struggle between a seizing

                                               27
patient and a violent police officer. It is         potentially could support such an
after all a police officer, not an EMT,             interpretation. I agree that such conduct,
who is expected to carry out and enforce            however unlikely, would satisfy the high
the law; an EMT will rarely feel                    standard of culpability laid out in Lewis
qualified to second guess an officer’s              and Brown. I therefore leave for the jury
authority.                                          the question whether Garcia and
                                                    Rodriguez consciously disregarded a
        I nonetheless concur because it is
                                                    great risk of serious harm to Rivas in a
not now our role to interpret the facts.
                                                    manner that “shocks the conscience.”
We will reverse the District Court’s
denial of summary judgment only if
there is no genuine issue as to any
material fact. Fed. R. Civ. P. 56(c). In
assessing whether judgment as a matter
of law is appropriate, we construe the
facts in the light most favorable to the
plaintiffs. We thus assume that the
EMTs did not merely call the police
unnecessarily because they
misinterpreted Rivas’s symptoms as
potentially aggressive or because they
were needlessly afraid. Rather, we
assume that they actually and actively
misrepresented to the police that Rivas
had attacked them. Though the chances
are remote, a jury theoretically could
find that the EMTs, unwilling to dirty
their hands to assist their patient, called
the police in order purposefully to shirk
their responsibility. Alternatively, it is
conceivable that Garcia and Rodriguez
needlessly phoned for backup in a
moment of fear and became embarrassed
when they arrived; perhaps they chose to
justify their call with false allegations of
violence rather than admit their
hastiness.
       I am skeptical that the EMTs
acted in this manner, but the conflicting
testimony identified by Judge Garth

                                               28
