                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2003

Schieber v. Philadelphia
Precedential or Non-Precedential: Precedential

Docket 01-2312




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"Schieber v. Philadelphia" (2003). 2003 Decisions. Paper 775.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/775


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL

       Filed February 20, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 01-2312

SYLVESTER J. SCHIEBER; VICKI A. SCHIEBER, as Co-
Personal Representatives of the Estate of Shannon
Schieber; Sylvester Schieber; Vicki Schieber

v.

CITY OF PHILADELPHIA; STEVEN WOODS, Individually
and as a Police Officer; RAYMOND SCHERFF, Individually
and as a Police Officer

       STEVEN WOODS, Individually and as
       a Police Officer; RAYMOND SCHERFF,
       Individually and as a Police Officer,
       Appellants

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 98-cv-05648)
District Judge: Honorable Norma L. Shapiro

Argued January 25, 2002

BEFORE: NYGAARD and STAPLETON, Circuit Judges , and
SLEET,* District Judge

(Opinion Filed February 20, 2003)
_________________________________________________________________

* Honorable Gregory M. Sleet, United States District Judge for the
District of Delaware, sitting by designation.


       Marc L. Fleischaker
       Anne L. Milem
       Arent, Fox, Kintner, Plotkin
        & Kahn
       1050 Connecticut Avenue, N.W.
       Washington, DC 20036
        and
       David Rudovsky (Argued)
       Kairys, Rudovsky, Epstein,
        Messing & Rau
       924 Cherry Street, Suite 500
       Philadelphia, PA 19107
        Attorneys for Appellees

       Jane L. Istvan (Argued)
       City of Philadelphia Law
        Department
       1515 Arch Street
       One Parkway
       Philadelphia, PA 19102
        Attorney for Appellants

       Terry L. Fromson
       Women’s Law Project
       125 South 9th Street, Suite 300
       Philadelphia, PA 19107
        Attorney for Amici-Appellees

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

STAPLETON, Circuit Judge:

In the early morning hours of May 7, 1998, Shannon
Schieber was raped and murdered in her second floor
apartment at 251 S. 23rd Street, Philadelphia,
Pennsylvania. Ms. Schieber’s parents, Sylvester and Vicki,
brought this civil rights suit on their own behalf and as
representatives of her estate against the City of
Philadelphia and Steven Woods and Raymond Scherff, the
police officers who responded to a 911 call from one of
Schieber’s neighbors on the night of her murder. After
extensive discovery, Officers Woods and Scherff moved for

                                  2


summary judgment based in part on their claim to qualified
immunity. The District Court denied their motions and they
now appeal. For the reasons that follow in this opinion and
in Judge Nygaard’s separate opinion, the District Court’s
order denying summary judgment will be reversed, and this
matter will be remanded with instructions to enter
summary judgment in favor of Officers Woods and Scherff.

I.

The following account of the relevant facts reflects the
undisputed evidence in the summary judgment record
except where the contrary is expressly noted.

At approximately 1:00 A.M. on May 7, 1998, Ms.
Schieber’s neighbors, Leah Basickes and Parmatma
Greeley, were watching television when they heard a noise
that made Greeley think that Schieber was in a "serious
domestic dispute." App. at 64. Basickes thought it had
come from the adjacent Manning Street and went to the
window to check. They discussed their differing views about
the source of the noise before Basickes went to bed.

Shortly after 2:00 A.M., while still watching television,
Greeley heard what he believed to be a scream and a
choking noise coming from Schieber’s apartment. He was
sufficiently concerned that he left his apartment, crossed
the hall, and knocked on Schieber’s door. He tried
unsuccessfully to open the door and then shouted, but
heard no response.

At 2:04 A.M., Greeley called 911 and reported:
       My next door neighbor, I just heard her yelling for help
       . . . Uh, sh-we’re on the second floor, . . . we’re on one
       side and she’s on the other. And I just heard . . . her
       yell help. I knocked on the door and I just heard like
       a . . . choking type sound and I just called.

App. at 432.

When Greeley’s call was received by the 911 dispatcher,
Officers Woods and Scherff were on patrol in different
patrol cars. The dispatcher sent a Priority 1 radio dispatch
passing on the "report of a female screaming" at 251 S.

                                3


23rd Street and calling for immediate assistance. Less than
five minutes later, Woods and Scherff arrived
simultaneously at the 23rd Street address. They proceeded
immediately to the door at that address and encountered a
woman inside her living room on the first floor with two
windows open. They asked if she had called police with
reference to a woman screaming. She responded that she
had heard no scream and directed them to another
entrance to the building around the corner on Manning
Street.

At the Manning Street entrance, Woods and Scherff
encountered Greeley and Amy Reed, who lived in the first
floor apartment immediately under Ms. Schieber’s second
floor apartment. Reed had been awakened by Greeley after
he heard the scream. The four of them then proceeded to
the door of Schieber’s apartment where the officers knocked
and received no response.

During the next few minutes, the officers interviewed
Greeley, Reed, and Christine Ritter, who lived on the third
floor directly above Schieber’s apartment and appeared on
the second floor landing in response to the noise
occasioned by the officers knocking on Schieber’s door.
Reed and Ritter informed the officers that they had been
asleep and had heard no scream.1 Greeley advised that he
believed he had heard a scream and a choking noise
coming from Schieber’s apartment, but upon being
_________________________________________________________________

1. Reed did advise the officers that before she went to bed, an hour and
a half before being awakened by Greeley, she heard something fall to the
floor in Schieber’s apartment. The sound was not out of the ordinary,
however, and did not concern her. As she testified at the deposition:

       Q. Was [sic] the noises that you heard prior to Parm [Greeley]
       waking you up, were those noises that were out of the unusual or
       were those somethings [sic] that were regularly occurring?

       A. I can’t say I never heard noises like that before coming from her
       apartment.

       Q. Did the noises that you heard startle you in any way?
        A. No, I thought something probably fell over.

App. at 131.

                                 4


questioned about this, expressed some uncertainty. In his
deposition, Greeley recounted what he told the officers in
the following manner:

        Q. What I really want to know is what you told the
        police about the events that occurred before their
        arrival?

        A. I said I heard my neighbor scream for help and a
        choked off sound.

        Q. And a choked off sound?

        A. Yes.

        Q. That’s what you told them?

        A. Yes.

        Q. What else did you tell them with regard to what
        you heard?

        A. They asked me if I was sure it came from her place
        or did it come from outside. I said -- I said I’m not --
        I said maybe, when they said are you sure it didn’t
        come from outside

* * *

        Q. Did the police ask you if the noise came from a
        different location other than Miss Schieber’s
        apartment?

        A. Yes.

* * *

        Q. Let me ask you the question, did the police ask
        you if you believed that the noise came from the
        outside?

        A. Something like that, yes.

        Q. That’s paraphrasing what you remember them
        saying?

        A. Yeah.

        Q. Now, in response to that, were you 100 percent
        certain at that time that the noise did come from Miss
        Schieber’s apartment?

                                 5
       A. Well, I said maybe it came from the outside.

       Q. Maybe indicating that you may not have been 100
       percent sure?

       A. Yes.

       Q. So it’s possible that the noise in your mind did not
       come from Miss Schieber’s apartment?

       A. At this point I was getting a little insecure, the
       whole neighborhood was up, and I was -- when they
       asked me that, I said maybe.

       Q. Did you shrug your shoulders like you did just
       now?

       A. Maybe, I can’t remember that, that far.

       Q. So when the police were there, it’s possible that
       you could have shrugged your shoulders?

       A. It’s possible.

App. at 74-75.

Ritter described Greeley’s report to the officers as follows:

       Q. With respect to the discussion about what Parm
       [Greeley] had heard, did the police officers inquire
       whether the noises that he heard could have come
       from the outside?

       A. I believe they did, yes.

       Q. And what was Mr. Greeley’s response to those
       questions?

       A. His response was uncertain. His response was it
       could have possibly come from outside, but he believed
       he heard something inside.

       Q. Do you remember hearing him say that it could
       have possibly come from outside?

       A. I do not remember that specific statement
       specifically. But certainly in the tone of voice and
       phrasing of his statements, he implied uncertainty.

       Q. As you listened to this, was it very clear to you in
       your own mind that he was expressing uncertainty?

                                6


         MS. APPEL: Objection to the form of the question.

       BY MR. WINEBRAKE:
        Q. I’m just asking for your observations. Based on
        your observations, in your mind, did you believe that
        he was expressing uncertainty?

        A. Yes. I understood him to be uncertain, indeed
        believed him to be uncertain.

* * *

        Q. When I asked you questions earlier this afternoon,
        you testified that at some point Mr. Greeley expressed
        uncertainty regarding whether or not the sound had
        come from outside the apartment complex; is that
        correct?

        A. Yes.

        Q. Is that your --

        A. Although I might say he expressed uncertainty
        whether it had come from inside as opposed to outside.

        Q. In other words, he expressed at some point that he
        might not be so sure where the sounds came from; is
        that accurate?

        A. Yes, that is accurate.

        Q. And he expressed that verbally; am I correct about
        that?

        A. Yes.

          MS. APPEL: Objection to the form.

        BY MR. WINEBRAKE:

        Q. Were the police officers present when he expressed
        that?

        A. I believe so. However, even had he   not explicitedly
        [sic] said I’m uncertain, his tone of   voice, his phrasing
        of questions and his general behavior   would suggest
        that he was not absolutely certain as   to what he heard
        or where it came from.

        Q. And that’s while the police were there?

                                 7


        A. Certainly.

App. at 209, 219.

In addition to these interviews, the officers checked
Schieber’s front door, her window, and the door to her
balcony and detected no signs of forced entry. They also
inspected the alley behind the building.
The police knocked on Schieber’s door a second time, this
time with the heel of their night sticks, identified
themselves as the police, and asked to be admitted. Nothing
was heard from within.

The landlord did not live in the building, and at some
point during the proceedings, there was a discussion as to
whether Schieber’s door should be forced open. In the
course of that discussion, Greeley stated something to the
effect that he would be embarrassed if the officers forced
the door and found nothing wrong inside. As the District
Court noted, there is a dispute in the record as to whether
this statement was volunteered or came only in response to
questioning from the officers. Greeley recalls his statement
this way:

        After they knocked on the door with the batons and
        everything I said to them, it’s in my statement, I’ll be
        embarrassed if you break down the door and nothing
        is happening, and I think it was Officer Woods said,
        we’re not going to break down the door, just like that.
        Then I mean I was in shock at that point. I thought--
        I was relieved when the police had come. I’m not
        trained in breaking down doors, and it was a bit of a
        put-off.

* * *

         Q. Tell me why you said [you would be embarrassed].

         A. Because I thought they were going to break down
        the door, and I hadn’t heard any sounds in so long
        that I was sort of just at this point he’s probably woken
        up a bunch of people and I was just -- let me phrase
        this properly. It was my ego on the line. I thought he
        was going to break down my neighbor’s door on my
        call, so it would be embarrassing if you break down

                                 8


        your neighbor’s door and there’s nothing happening,
        don’t you think?

         Q. At the time you made this statement, did you
        become unsure as to whether or not the door should
        be broken in?

         A. I thought they were going to break down the door.

         MR. SCOTT: Would you read back my question,
        please.

         . . . .

        (There was a brief pause in the proceedings.)

         . . . .
        THE WITNESS: I thought it still should be broken
       down.

App. at 75, 76. Reed testified that Greeley’s statement came
in response to a question from the officers as to how he
would "feel if they did kick down the door and nothing
happened." App. at 136.

As the officers were leaving the premises, they told
Greeley, Reed, and Ritter to call 911 if they heard any noise
from the apartment and they would return to investigate
further. The District Court found that the record as a whole
would support an inference that the officers effectively
communicated to the neighbors that they should "do
nothing but call 911 if they heard additional noise." It was
on this basis that the District Court concluded that a trier
of fact might find that the officers "greatly increased the
risk of harm to Schieber by preventing the neighbors from
effectuating rescue themselves." App. at 18.

The record further reveals that the officers were aware
that there had been other rapes in the general area in the
last year. The officers were at the 23rd Street address less
than six minutes. They left without receiving a call on their
police radios. They remained on duty until 7:00 A.M.

Both officers gave statements to supervisors the   next day
and testified at depositions after this suit was   filed. Their
consistent explanation of their conduct was that   they
understood they were authorized to make a forced   entry if

                                9


they believed the occupant was inside and in jeopardy and
that they would have done so without hesitation if they had
been persuaded that this was the case. Greeley was
unsure, however, of the source of the scream he heard, and
their investigation left them unconvinced that there was a
problem inside.

II.

This Court has jurisdiction to review a District Court
order denying qualified immunity at the summary judgment
stage under the collateral order doctrine to the extent that
the denial turns on questions of law. Mitchell v. Forsyth,
472 U.S. 511, 527-28 (1985). We exercise plenary review
over the questions of law. See Eddy v. V.I. Water & Power
Auth., 256 F.3d 204, 208 (3d Cir. 2001). We have no
jurisdiction, however, in an interlocutory appeal to review a
District Court’s determination that there is sufficient record
evidence to support a set of facts under which there would
be no immunity. See Johnson v. Jones, 515 U.S. 304, 313
(1995). Thus, where the District Court has adopted a set of
facts for the purpose of ruling on the qualified immunity
issue, we must accept those facts when reviewing a denial
of immunity. Id. at 319. As we recently explained in Forbes
v. Township of Lower Merion, 313 F.3d 144 (3d Cir. 2002):
       we may "review whether the set of facts identified by
       the district court is sufficient to establish a violation of
       a clearly established constitutional right," but we may
       not "consider whether the district court correctly
       identified the set of facts that the summary judgment
       record is sufficient to prove." . . . When a defendant
       argues that a trial judge erred in denying a qualified-
       immunity summary-judgment motion because the
       judge was mistaken as to the facts that are subject to
       genuine dispute, the defendant’s argument cannot be
       entertained under the collateral-order doctrine but
       must instead await an appeal at the conclusion of the
       case.

Forbes, 313 F.3d at 147-48 (quoting from Ziccardi v. City of
Philadelphia, 288 F.3d 57, 61 (3d Cir. 2002)). In the context
of this case, this means that we must accept the District

                                10


Court’s finding of sufficient evidence to support a finding
that a police instruction to do nothing but call 911 stopped
the neighbors from effecting rescue themselves. 2

In evaluating a claim of qualified immunity, we must first
determine whether the plaintiff has properly asserted a
deprivation of a constitutional right; then we can consider
whether the right was clearly established at the time of the
alleged violation. See Wilson v. Layne, 526 U.S. 603, 609
(1999); Conn v. Gabbert, 526 U.S. 286, 290 (1999).
Following this procedure allows courts "to set forth
principles which will become the basis for a holding that a
right is clearly established" in the future. Saucier v. Katz,
533 U.S. 194, 201 (2001).

III.

Ms. Schieber’s parents claim that Officers Woods and
Scherff and the City of Philadelphia violated their rights
and those of their daughter under the Due Process Clause.
With respect to Officers Woods and Scherff, the claim is
that they deprived Schieber of assistance from her
neighbors that would have saved her life in violation of her
constitutionally protected right to personal security.

The case against Officers Woods and Scherff is predicated
_________________________________________________________________

2. The defendants correctly insist that no one testified that the officers
used the words "do nothing but call 911." Nevertheless, the District
Court found that the record as a whole would support a finding that this
was the message conveyed by them. This was not an inadvertent slip of
the pen. The District Court expressly recognized that the state created
danger doctrine requires a showing that the state created or increased
the risk of injury to the injured party and denied summary judgment
solely because a trier of fact could find this to be the case here. The
central holding of the District Court’s opinion was as follows:

        Here, the officers’ decision to: (1) leave without forcing Schieber’s
       door; and (2) instruct the neighbors to do nothing but call 911 if
       they heard additional noise, greatly increased the risk of harm to
       Schieber by preventing the neighbors from effectuating rescue
       themselves.

App. at 18. Accordingly, we may not review whether the District Court
erred in its conclusion regarding the message conveyed.

                                11


on the state-created danger doctrine. That doctrine had its
origin in DeShaney v. Winnebago County Dep’t of Soc.
Servs., 489 U.S. 189 (1989), where the Supreme Court
considered whether the Due Process Clause of the
Fourteenth Amendment imposed upon the state an
affirmative duty to protect a child from domestic abuse
when a state actor had knowledge of prior suspicious
injuries. The Court held that in the absence of special
circumstances the state has no duty to protect a person
from private violence. It reasoned that:

       nothing in the language of the Due Process Clause
       itself requires the State to protect the life, liberty, and
       property of its citizens against invasion by private
       actors . . . . It forbids the State itself to deprive
       individuals of life, liberty or property without"due
       process of law," but its language cannot fairly be
       extended to impose an affirmative obligation on the
       State to ensure that those interests do not come to
       harm through other means.

Id. at 195. While the Court recognized that there are
situations in which the state assumes affirmative duties to
protect from harm, it concluded that the state had assumed
no responsibility to protect Joshua, the victim of the abuse.
As the Court noted: "While the State may have been aware
of the dangers that Joshua faced in the free world, it played
no part in their creation, nor did it do anything to render
him any more vulnerable to them." Id. at 201.

Although the last quoted language effectively ended the
plaintiff ’s case in DeShaney, this and other courts have
read this passage to indicate that a constitutional violation
may occur when the state acts in a way that makes a
person substantially more vulnerable to injury from another
source than he or she would have been in the absence of
the state intervention. See Kneipp v. Tedder, 95 F.3d 1199,
1205 (3d Cir. 1996) (citing cases); Mark v. Borough of
Hatboro, 51 F.3d 1137, 1151-52 (3d Cir. 1995) (citing
cases). Indeed, we have held that a plaintiff may recover on
a "state-created danger theory" under the Due Process
Clause upon a showing that:

       (1) the harm ultimately caused was foreseeable and
       fairly direct; (2) the state actor acted in willful

                                12
       disregard for the safety of the plaintiff; (3) there existed
       some relationship between the state and the plaintiff;
       [and] (4) the state actors used their authority to create
       an opportunity that otherwise would not have existed
       for the third party’s crime to occur.

Kneipp, 95 F.3d at 1208 (quoting Mark , 51 F.3d at 1152).

As the District Court correctly perceived, our summary of
the law regarding state created dangers in Kneipp needs to
be updated to reflect the Supreme Court’s subsequent
decision in County of Sacramento v. Lewis, 523 U.S. 833
(1998). In Lewis, the Supreme Court granted certiorari "to
resolve a conflict among the Circuits over the standard of
culpability on the part of a law enforcement officer for
violating substantive due process in a pursuit case." 523
U.S. at 839. In considering the appropriate substantive due
process standard, the Court emphasized that " ‘the
touchstone of due process is protection of the individual
against arbitrary action of the government.’ " Id. at 845
(quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). The
Court cautioned, however, that its "cases dealing with . . .
executive action have repeatedly emphasized that only the
most egregious official conduct can be said to be arbitrary
in the constitutional sense." Id. at 846 (quotation omitted).
The Court accordingly concluded that to prove a violation of
substantive due process in cases involving executive action,
the plaintiff must show that the state acted in a manner
that "shocks the conscience." Id. As we summarized in
Miller: "To generate liability, executive action must be so ill-
conceived or malicious that it ‘shocks the conscience.’ " 174
F.3d at 375 (quoting Lewis, 523 U.S. at 846).

Since Lewis, we have had occasion to apply this
substantive due process standard in a number of different
settings and we must, of course, apply it here. See Ziccardi
v. City of Philadelphia, 288 F.3d 57, 58 (3d Cir. 2002)
(applying "shocks the conscience" test to claim against
paramedics whose handling of plaintiff following a fall
allegedly caused his quadriplegia); Nicini v. Morra, 212 F.3d
798, 800 (3d Cir. 2000) (en banc) (applying the"shocks the
conscience" test to the substantive due process claims of a
plaintiff who had been abused by a member of a family with
whom he had been placed for foster care); Miller, 174 F.3d

                                13


at 370 (applying the "shocks the conscience" test to the
claim of a mother and her children for an alleged violation
based on "an emergency ex parte child custody hearing"
after which the City defendants removed two of Miller’s
children from her custody).

Whether executive action is conscience shocking and
thus "arbitrary in the constitutional sense" depends on the
context in which the action takes place. In particular, the
degree of culpability required to meet the "shock the
conscience" standard depends upon the particular
circumstances that confront those acting on the state’s
behalf. As the Court explained in Lewis:

        We have . . . rejected the lowest common denominator
        of customary tort liability as any mark of sufficiently
        shocking conduct, and have held that the Constitution
        does not guarantee due care on the part of state
        officials; liability for negligently inflicted harm is
        categorically beneath the threshold of constitutional
        due process. . . . It is, on the contrary, behavior at the
        other end of the culpability spectrum that would most
        probably support a substantive due process claim;
        conduct intended to injure in some way unjustifiable
        by any government interest is the sort of official action
        most likely to rise to the conscience-shocking level. . . .

         Whether the point of the conscience shocking is
        reached when injuries are produced with culpability
        falling within the middle range, following from
        something more than negligence but less than
        intentional conduct, such as recklessness or gross
        negligence . . . is a matter for closer calls.

* * *

        Deliberate indifference that shocks in one environment
        may not be so patently egregious in another, and our
        concern with preserving the constitutional proportions
        of substantive due process demands an exact analysis
        of circumstances before any abuse of power is
        condemned as conscience shocking.

523 U.S. at 848-49, 850 (quotation omitted). Accordingly,
with the guidance of Lewis and its progeny, I will undertake

                                 14


the required "exact analysis of [the] circumstances" facing
Officers Woods and Scherff on the morning of May 7, 1998.

IV.

The Lewis Court ultimately held "that high-speed chases
with no intent to harm suspects physically or to worsen
their legal plight do not give rise to liability under the
Fourteenth Amendment." Id. at 854. The analysis it
followed in reaching this conclusion compared the
circumstances of officers in high-speed chases, prison
doctors in providing health care, and prison managers in
dealing with riots. In the course of that comparison, the
Court identifies the kinds of factors that should be
considered in deciding whether and when executive action
shocks the conscience. The Court began by pointing out
that prison doctors face liability if they are deliberately
indifferent to the serious medical needs of their prisoners.
It noted that the "deliberate indifference" standard "is
sensibly employed only when actual deliberation is
practical, . . . and [that] in the custodial situation of a
prison, forethought about an inmate’s welfare is not only
feasible but obligatory under a regime that incapacitates a
prisoner to exercise ordinary responsibility for his own
welfare." Id. at 851 (citing Whitley v. Albert, 475 U.S. 312,
320 (1986)). Moreover, the Court stressed that no
"substantial countervailing interest[s] excuse the State from
making provision for the decent care and protection of
those it locks up." Id. Thus, "the State’s responsibility to
attend to the medical needs of prisoners [or detainees] does
not ordinarily clash with other equally important
governmental responsibilities." Id. at 851-52 (quoting
Whitley, 475 U.S. at 320) (alteration in original).

By contrast, in the prison riot setting, liability turns on
" ‘whether force was applied in a good faith effort to
maintain or restore discipline or maliciously and
sadistically for the very purpose of causing harm.’ " Id. at
853 (quoting Whitley, 475 U.S. at 320-21)). In such
circumstances, "prison officials undoubtedly must take into
account the very real threats the unrest presents to
inmates and prison officials alike, in addition to the
possible harms to inmates against whom force might be

                                15


used. . . . In this setting, a deliberate indifference standard
does not adequately capture the importance of such
competing obligations, or convey the appropriate hesitancy
to critique in hindsight decisions necessarily made in haste,
under pressure, and frequently without the luxury of a
second chance." Id. at 852 (quoting Whitley, 475 U.S. at
320) (alteration in original).

The Supreme Court found the circumstance of an officer
in a high-speed chase much closer to that of the prison
managers required to deal with a riot:

        Like prison officials facing a riot, the police on an
       occasion calling for fast action have obligations that
       tend to tug against each other. Their duty is to restore
       and maintain lawful order, while not exacerbating
       disorder more than necessary to do their jobs. They are
       supposed to act decisively and to show restraint at the
       same moment, and their decisions have to be made"in
       haste, under pressure, and frequently without the
       luxury of a second chance." Id., at 320; cf. Graham v.
       Connor, 490 U.S., at 397 ("[P]olice officers are often
       forced to make split-second judgments -- in
       circumstances that are tense, uncertain, and rapidly
       evolving[.]"). A police officer deciding whether to give
       chase must balance on one hand the need to stop a
       suspect and show that flight from the law is no way to
       freedom, and, on the other, the high-speed threat to all
       those within stopping range, be they suspects, their
       passengers, other drivers, or bystanders.

        To recognize a substantive due process violation in
       these circumstances when only midlevel fault has been
       shown would be to forget that liability for deliberate
       indifference to inmate welfare rests upon the luxury
       enjoyed by prison officials of having time to make
       unhurried judgments, upon the chance for repeated
       reflection, largely uncomplicated by the pulls of
       competing obligations. When such extended
       opportunities to do better are teamed with protracted
       failure even to care, indifference is truly shocking. But
       when unforeseen circumstances demand an officer’s
       instant judgment, even precipitate recklessness fails to
       inch close enough to harmful purpose to spark the

                                16


       shock that implicates "the large concerns of the
       governors and the governed."

Lewis, 523 U.S. at 853.

There are several lessons from Lewis that are relevant
here. The first, of course, is that negligence is not enough
to shock the conscience under any circumstances. The
second is that more culpability is required to shock the
conscience to the extent that state actors are required to
act promptly and under pressure. Moreover, the same is
true to the extent the responsibilities of the state actors
require a judgment between competing, legitimate interests.
With these lessons in mind, I turn to the circumstances of
this case.

Officers Woods and Scherff arrived promptly at 251 S.
23rd Street in the early morning hours of May 7, 1998, in
response to advice that a man had reported hearing a
woman scream. They conducted an investigation that
included speaking with each of the available witnesses,
ascertaining that there were no signs of forced entry, and
establishing that no response could be secured from within
Ms. Schieber’s apartment. The occupants of the apartments
immediately above and below Schieber’s heard no scream,
and another inhabitant of the first floor of the building
heard none. The neighbor who had made the 911 call
believed that there had been a scream and that it had come
from Schieber’s apartment, but he was the only one who
had heard a scream and he exhibited uncertainty about its
source.

The information revealed by the officers’ investigation was
consistent with three situations: (1) Greeley was mistaken
about the scream or its source and Schieber was not home;
(2) Greeley was mistaken about the scream or its source
and Schieber was at home and did not wish to be
disturbed; or (3) Greeley was right, and Schieber was at
home and the victim of violence. Given the absence of any
sign of forced entry and the fact that no other neighbors
heard the scream, in the absence of Greeley’s report, the
first two possibilities were infinitely more likely than the
third. Accordingly, a decision about which of these
possibilities was the more likely depended on an evaluation
of the accuracy of Greeley’s perception.

                                17
The circumstances confronting Woods and Scherff were
such that it was unlikely that additional relevant
information would become available to them soon and, if
Greeley were correct, any action to render meaningful aid to
Schieber would have to be taken without delay in order to
have any chance of accomplishing its objective. Accordingly,
a quick, on-the-spot decision was required on whether to
forcibly open Schieber’s door, and that decision had to be
made on the basis of the limited information then available.

Most importantly, the decision on forcible entry of
Schieber’s home involved important competing interests.
There was some possibility that Schieber’s constitutionally
protected interest in personal security was in jeopardy, but
it was certain that forcible entry would infringe on her
constitutionally protected interest in privacy.

While it is true that Woods and Scherff were not required
to exercise an instantaneous judgment, like an officer in a
chase situation, this was nevertheless far from the situation
of prison doctors where "extended opportunities to do better
[may be] teamed with protracted failure even to care."
Lewis, 523 U.S. at 853. Woods and Scherff were required to
make a decision without delay and under the pressure that
comes from knowing that the decision must be made on
necessarily limited information. The required judgment
involved the weighing of the important competing interests
of personal security and privacy. This, in turn, required an
assessment of the likelihood of Schieber’s being in jeopardy,
which in turn required an evaluation of the reliability of
Greeley’s report. The officers made the required judgment,
and their discourse with the neighbors vouches that their
focus was on the relevant considerations -- the reliability of
Greeley’s account and the impact of forced entry on
Schieber’s privacy interests. Nothing in the record would
support an inference that the officers were influenced in
any way by self-interest or any other inappropriate
consideration. In short, Woods and Scherff made a good
faith judgment required by their official responsibilities.3
_________________________________________________________________

3. Pointing to isolated segments of the interviews given by Officers Woods
and Scherff, the next day, Schieber’s parents suggest that the officers
refused to enter "not because [Greeley] was uncertain with respect to the

                                18


It may well be that these circumstances, like those in
Lewis, call for something more than a finding of"mid-level
fault" as a predicate for a conclusion that the officers’
conduct shocks the conscience. Certainly this situation is
much closer to that presented by Lewis than to that of a
prison physician deciding whether to treat a serious
medical need. Moreover, if intent to harm is the necessary
predicate here, clearly no reasonable jury could find that
Woods or Scherff possessed that state of mind. Judge
Nygaard and I find it unnecessary to hold that an intent to
harm is required here, however, because we believe it
equally clear that the current record will not support a
finding of deliberate indifference to Schieber’s rights and
that, accordingly, the conduct of Officers Woods and
Scherff cannot be found to shock the conscience.

The deliberate indifference prison standard spoken of in
Lewis is equivalent to the concept of recklessness utilized
in the criminal law. Farmer v. Brennan, 511 U.S. 825, 837
(1994). It requires that the prison doctor or custodian have
an actual, subjective appreciation of an excessive risk of
serious harm to inmate health or safety and that he or she
"consciously disregard" that risk. Id. at 839 (quoting Model
Penal Code S 202(2)(c)).4 While Officers Woods and Scherff
_________________________________________________________________

source of the screams . . . , but because they had decided in advance
that they would not enter unless they personally heard a call for help or
had the approval of a supervisor." Appellees’ Br. at 10-11. The record
would not support such a finding. Scherff did state that he would not
have taken down the door unless he himself heard a cry for help from
inside Schieber’s apartment, but he made this statement after, and in
the context of, his explanation that there were no signs of forced entry,
no one other than Greeley had heard a scream, and Greeley was
uncertain about the source of the scream he believed he had heard. It is
clear from their statements and depositions that both officers understood
that the police are authorized to make a forced entry in order to prevent
death or physical injury and that they would have done so in this
instance had they believed that Schieber was a victim of violence. The
fact that Woods may have sought the counsel of a supervisor before
taking down the door hardly supports a conclusion that he acted with
deliberate indifference.

4. In another context, the Supreme Court has suggested that an official’s
deliberate indifference may exist in the absence of subjective

                                19


appreciated the possibility that Schieber was a victim of
violence, they cannot be said to have consciously
disregarded that risk. To the contrary, they arrived
promptly, conducted an appropriate investigation, and
made a conscious judgment which took that risk into
account. While one can argue with the benefit of hindsight
that these officers exercised poor judgment and were thus
guilty of negligence, a reasonable trier of fact could not find
that they were deliberately indifferent to Schieber’s
constitutional rights.5

Moreover, even accepting, as we do, that Woods and
Scherff advised the neighbors to do nothing but call 911 if
they heard further noise, this does not alter our conclusion
that their conduct could not be found to be shocking to the
conscience. Having concluded that there was an insufficient
basis to warrant a peace officer in making a forced entry, it
necessarily followed that the officers believed there was an
insufficient basis for private forced entry and that Greeley
had done the right thing in calling 911 and allowing the
police to make a judgment. If, as Schieber’s parents
maintain, the officers’ advice caused the neighbors to
refrain from forcing the door following the officers’
departure, that advice can hardly be said to shock the
conscience under the circumstances reflected in the
undisputed evidence in this record. Accordingly, Judge
Nygaard and I conclude that there was no due process
violation.

Our decisions in Miller and Ziccardi are supportive of this
conclusion. In Miller, we evaluated the actions of a social
worker who, after receiving allegations of abuse, took steps
to separate a child from her natural parent. In that
_________________________________________________________________

appreciation when the excessive risk of harm is so obvious that it should
be known. See Farmer, 511 U.S. at 840-41 (discussing Canton v. Harris,
489 U.S. 378 (1989) and the civil tort concept of recklessness). Here
there is no dispute that the officers had a subjective awareness of the
possibility that Schieber may have been a victim of violence.

5. It may well be, as the dissent suggests, that it would have been better
investigative technique to ask more "open ended questions" of Greeley. If
so, that fact might support a finding of negligence on the part of the
officers. It would not, however, support a finding that they were
deliberately indifferent to Schieber’s welfare.

                                20


situation, like the present one, the state actor was required
to make a judgment between conflicting interests-- those
of the parent in the child and those of the state in the
child’s welfare -- and to evaluate the impact of the state’s
intervention on those interests. Moreover, while the Court
recognized "that a social worker acting to separate parent
and child does not usually act in the hyper-pressurized
environment of a prison riot or a high-speed chase," it
observed that "he or she rarely will have the luxury of
proceeding in a deliberate fashion, as prison medical
officials can." 174 F.3d at 375. We ultimately concluded
that "in order for liability to attach, a social worker need
not have acted with the ‘purpose to cause harm,’ but the
standard of culpability . . . must exceed both negligence
and deliberate indifference." Id. We held that this degree of
culpability was not present.

In Ziccardi, we found that the applicable standard of
culpability for paramedics seeking to aid an accident victim
was the same as that for the social worker in Miller, and we
elaborated on the concept of a degree of culpability greater
than subjective deliberate indifference though less than
subjective intent to harm. In that case, two paramedics
responded to a neighbor’s 911 call reporting that a man
was in distress after having fallen from an eight foot wall to
the sidewalk below. Instead of immobilizing the plaintiff ’s
cervical spine before moving him, the paramedics lifted him
by his arms and then by his shoulders and legs, allegedly
causing quadriplegia. As in Miller, we noted the difference
between the responsibilities of a paramedic and those of a
physician treating institutionalized patients:
        Miller’s reason for holding that more than deliberate
        indifference had to be shown -- the social worker’s
        need to act without "the luxury of proceeding in a
        deliberate fashion," id. at 375 -- seems equally
        applicable here. While the record in the present case
        does not suggest that the appellants had any particular
        need to move Smith quickly -- for example, he was not
        in a dangerous location and did not appear to have any
        other medical problems requiring prompt movement--
        the social worker in Miller similarly does not appear to
        have had a need to make a split-second decision. What

                                 21


        the Miller court seems to have had in mind was the
        need for the social worker to act in a matter of hours
        or minutes. Nevertheless, the Miller court held that the
        nature of the situation faced by the social worker
        mandated proof of something more than subjective
        deliberate indifference, and this holding seems to
        require the application of a similar standard here.

Ziccardi, 288 F.3d at 65.

We then went on to more clearly articulate this standard
of culpability.

        Miller thus appears to have demanded proof of
        something less than knowledge that the harm was
        practically certain but more than knowledge that there
        was a substantial risk that the harm would occur. A
        simple way of putting this is that Miller mandated proof
        that the defendant was aware of more than a
        substantial risk -- let us say a great risk -- that there
        was no good cause for the removal of the children.

* * *

         In summary, then, we understand Miller to require in
        a case such as the one before us, proof that the
        defendants consciously disregarded, not just a
        substantial risk, but a great risk that serious harm
        would result if, knowing Smith was seriously injured,
        they moved Smith without support for his back and
        neck.

Ziccardi, 288 F.3d at 66.

I believe that a comparison of the situation confronting
Officers Woods and Scherff with those confronting the
social worker in Miller and the paramedics in Ziccardi
suggests that liability could exist here only if Woods and
Scherff subjectively appreciated and consciously ignored a
great, i.e., more than substantial, risk that the failure to
break down Schieber’s door would result in significant
harm to her. Clearly, the record would not support such a
finding. Nevertheless, just as I have found it unnecessary to
determine whether the Lewis "intent to harm" standard is
applicable, I also find it unnecessary to adopt the
Miller/Ziccardi standard. Because the record would not

                                22


support a finding of more than negligence on the part of
Woods and Scherff, the result we reach follows a fortiori
from that reached in Miller and Ziccardi .

Because I conclude that the record will not support a
conclusion that the officers’ conduct shocks the conscience,
I do not reach the issue of whether they used their state
authority to render Schieber more vulnerable to private
violence. Moreover, because I conclude that no
constitutional violation occurred, I need not reach the
qualified immunity issue.6

V.

The order of the District Court entered May 9, 2001, will
be reversed and this matter will be remanded with
instructions to enter summary judgment in favor of Officers
Woods and Scherff.
_________________________________________________________________

6. I also express no view on whether the Schiebers, as parents, had a
liberty interest in the continued companionship of their adult,
emancipated child. Compare Trujilo v. Bd. of Cty. Comm’rs, 768 F.2d
1186 (10th Cir. 1985); Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.
1984), with Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001);
Ortiz v. Burgos, 807 F.2d 6 (1st Cir. 1986). Nor do I express an opinion
as to whether we have jurisdiction to consider that issue in an appeal
from a denial of a claim of qualified immunity.

                                23


NYGAARD, Circuit Judge, Concurring:

I agree with much of what Judge Stapleton has written in
his excellent opinion, and concur in its judgment. I write
separately, however, first because I take a different view of
the Supreme Court’s decision in Johnson v. Jones, 515 U.S.
304 (1995), and second to more fully explain my view of the
test for affirmative acts under the "state-created danger"
exception contained in DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189, 195 (1989).

Judge Stapleton’s opinion interprets Johnson v. Jones to
require that we accept the facts found by the District Court.
With this, I fully agree. Having said that, I would not base
our analysis upon a statement made by the District Court,
in its discussion of the issues, that the police instructed
Ms. Schieber’s neighbors "to do nothing but call 911" if
they heard additional noise. See Opinion at p.11. The
problem is that this is not one of the facts specifically found
by the District Court. Instead, in the "Facts" section of its
opinion, the District Court found:

       Neighbors, having been assured by the officers that
       Schieber was not home and told by the officers to call
       911 again if they heard any other noises from the
       apartment, took no further action.

Schieber v. City of Phila., 156 F. Supp. 2d 451, 455 (E.D.
Pa. 2001). It is only in the "Discussion" portion of the
District Court’s opinion that it suggests, without fact-
finding to support it, that the officers decided to"instruct
the neighbors to do nothing but call 911 if they heard
additional noise." Id. at 460.

The Supreme Court instructed us in Johnson v. Jones to
"take, as given, the facts that the district court assumed
when it denied summary judgment." 515 U.S. at 319.
When, as here, the "Facts" found by the District Court are
inconsistent with a statement it makes in its "Discussion,"
I would base my analysis on the facts specifically found by
the District Court.

When the District Court has not explicitly stated its facts,
the Supreme Court instructs that we "may have to
undertake a cumbersome review of the record to determine

                                24


what facts the district court, in the light most favorable to
the nonmoving party, likely assumed." Id. Out of caution I
reviewed the record and I found no evidence to support a
statement that the officers told Ms. Schieber’s neighbors "to
do nothing but call 911" if they heard additional noise.
Indeed, Judge Stapleton and I agree that there was no
testimony that the officers ever made such a statement. See
Opinion at n.2. Even the Schiebers themselves never
attempted to support this allegation in their briefs or at oral
argument. This further supports my reasoning that the
relevant facts are those set out in the "Facts" portion of the
District Court’s opinion. Consequently, my analysis follows
a different path than does Judge Stapleton’s, although we
both reach the same result.

It is well established under DeShaney that the state has
no constitutional obligation to protect its citizens from each
other. Because there is no constitutional requirement that
the State provide protective or rescue services,"it follows
that the State cannot be held liable under the Clause for
injuries that could have been averted had it chosen to
provide them." DeShaney, 489 U.S. at 196-97. Thus, our
baseline for analysis is that the officers in this case cannot
be held liable simply for failing to break down Ms.
Schieber’s door.

Recognizing as much, the Schiebers have attempted to fit
their claim within a narrow exception to the DeShaney rule
known as the "state-created danger" exception. That
exception only applies when the state has created a harm
or renders someone more vulnerable to an existing harm.
Id. at 201. Courts have found under this exception that the
state may incur an affirmative duty to rescue if it deprives
someone of private sources of rescue. See, e.g. , Ross v.
United States, 910 F.2d 1422 (7th Cir. 1990) (finding a
constitutional claim was stated where a deputy ordered
civilian scuba divers to cease their rescue of a drowning
boy, blocked them with his boat, and threatened to arrest
them).

Judge Stapleton’s opinion applies the four-part state-
created danger test we enunciated in Kneipp v. Tedder, 95
F.3d 1199 (3d Cir. 1996). I do not disagree with its analysis
as far as it goes. Nonetheless, in my view the test for

                                25


liability must start with D.R. v. Middle Bucks Area
Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992)
(en banc), in which we emphasized that the state must have
committed an affirmative act before it can be held
constitutionally liable under the state-created danger
exception. Sitting en banc in D.R., we noted that the genesis
of the exception was the Supreme Court’s language in
DeShaney that "[w]hile the State may have been aware of
the dangers that Joshua faced in the free world, it played
no part in their creation, nor did it do anything to render
him any more vulnerable to them." Id. at 1373 (quoting
DeShaney, 489 U.S. at 201). We went on to consider the
development of the exception and observed that "[p]ost-
DeShaney courts have tracked the quoted Supreme Court’s
language by asking whether the state actors involved
affirmatively acted to create plaintiff ’s danger, or to render
him or her more vulnerable to it." Id . (emphasis added).
Finally, we concluded that "[l]iability under the state-
created danger theory is predicated upon the states’
affirmative acts which work to plaintiffs’ detriments in
terms of exposure to danger." Id. at 1374 (emphasis added).
Hence, the State can be liable only when it has committed
an affirmative act, without which, we do not reach the
Kneipp test. Because the District Court made no factual
finding that there was an affirmative act by the State, i.e.,
the officers simply told neighbors to "call 911," I would
conclude that there can be no liability.

Finally, while there are thus significant differences in my
analysis, I am in full agreement with Judge Stapleton that,
assuming the officers had directed the neighbors"to do
nothing but call 911," their conduct still did not rise to the
level necessary to establish a state-created danger claim
under Kneipp.

For these reasons, I concur.

                                26


SLEET, District Judge, Dissenting:

This case is on review at the summary judgment stage of
these proceedings because the District Court rejected the
appellants’ contention that the shield of qualified immunity
protects them from liability for the appellees’ claimed
injuries. In his opinion, Judge Stapleton states that, at this
interlocutory stage of these proceedings, we must accept
the "District Court’s determination that there is sufficient
record evidence to support a set of facts under which there
would be no immunity." See Johnson v. Jones , 515 U.S.
304, 313 (1995). Thus, he states that we "must accept the
District Court’s finding of sufficient evidence to support a
finding that a police instruction to do nothing but call 911
stopped the neighbors from effecting rescue themselves."1
(emphasis in the original). As such, it appears that Judge
Stapleton reads Johnson to require that an appeals court
limit its review of the pretrial record to those instances
where the court is unable to determine from the trial
court’s ruling the facts it relied upon when it denied
summary judgment. In other words, he seems to read
Johnson to direct the effort of the court of appeals to
whether it can discern from the trial court’s ruling the facts
it likely assumed, rather than whether that court’s factual
assumptions are set forth explicitly in its opinion. In the
case before us, Judge Stapleton believed that he was able
to determine those facts from the body of the District
Court’s opinion. Thus, he found no need to look beyond the
four corners of that opinion.

In his concurrence, Judge Nygaard agrees that "we must
accept the facts found by the District Court." He seems also
to agree with Judge Stapleton’s conclusion that the
appellate court’s review of the pretrial record is limited to
those instances noted above. Judge Nygaard does not
appear to agree, however, that the District Court’s opinion
in the matter before us adequately reveals the set of facts
it assumed in rendering its immunity decision. Specifically,
Judge Nygaard states that "[w]hen, as here, the ‘Facts’
_________________________________________________________________

1. Judge Stapleton notes that "the District Court found that the record
as a whole supported the finding that the message conveyed by the
officers was to do nothing but call 911."

                                27


found by the District Court are inconsistent with a
statement it makes in its ‘Discussion,’ I would base my
analysis on the facts specifically found by the District
Court." Thus, it appears there is a difference in view as to
what the Court meant in Johnson when discussing an
appellate court’s determination of the set of facts the
District Court assumed in ruling on a purely legal question
presented by an assertion of qualified immunity. In other
words, Judge Nygaard seems to differ with Judge Stapleton
as to where we should look and how we should determine
the facts assumed by the trial court in rendering its
decision.

In his concurrence, Judge Nygaard states that "out of
caution," he reviewed the pretrial record before us. It would
seem that the need for caution here was prompted by the
District Court’s failure to set forth in explicit terms, either
in the facts or background section of its opinion or in a
manner clearly identifying it as such, the specific finding of
fact that the officers gave the 911 instruction. Whether or
not that was the catalyst, after his review of the record,
Judge Nygaard found no support for the District Court’s
finding of fact that the officers told the neighbors"to do
nothing but call 911." (emphasis in the original).
Nevertheless, he agreed, albeit for different reasons, with
Judge Stapleton’s conclusion.

I am unable to agree with my colleagues’ restrictive
reading of Johnson. I too have reviewed the record, and in
so doing, have concluded that there is a genuine issue as
to whether the conduct of the officers violated clearly
established law. I, therefore, respectfully dissent.

We exercise jurisdiction over this matter because,
presumably, the question presented is purely legal, and not
"whether or not [the] record demonstrates a‘genuine issue
of fact for trial.’ " Johnson 515 U.S. at 316. In Johnson, the
Court wrestled with the challenge of separating reviewable
immunity determinations of the District Court from those
that are not. The Court discussed and analyzed the
"competing considerations," the wise use of appellate
resources among them, involved in the question of limiting
" ‘qualified immunity’ matters to cases presenting more
abstract issues of law." Id. at 317. Among other reasons to

                                28


limit review of the pretrial record in immunity questions,
the Court felt that it would be an unwise use of the
resources of appellate courts to examine "questions about
whether or not a record demonstrates" the presence of a
triable issue because such questions "can consume
inordinate amounts of appellate time." Id. at 316. Thus, the
Court stated, "When faced with an argument that the
District Court mistakenly identified clearly established law,
the court of appeals can simply take, as given, the facts
that the District Court assumed when it denied summary
judgment for that (purely legal) reason." Id. at 319
(emphasis added).

Contrary to the view expressed by my colleagues, I
believe the language used by the Court does not require
acceptance of the facts assumed. It simply suggests that
when the trial court sets forth its factual findings, courts of
appeal need not "undertake a cumbersome review of the
record to determine what facts the District Court . . . likely
assumed." Id. at 319. Conversely, the Court recognized that
when the trial court fails to articulate the factual
underpinning for its summary judgment ruling on a legal
question, the court of appeals may have to engage in such
a review. Clearly, in order to enable courts of appeal to
operate more efficiently, and for the other reasons stated in
its opinion in Johnson, the Court would prefer that trial
courts say something in this regard. The Court did not say,
however, that it intended to restrict the ability of our circuit
courts to review a record only to these instances. In other
words, Johnson should not be read to stand for the
proposition that, even though the District Court’s specific
factual findings do not support its legal conclusions, when
there is, in fact, support in the record for those
conclusions, those facts should be ignored. If that is what
Johnson means, circuit courts will be confined to the four
corners of whatever the trial court says are the facts, and
the legal conclusions based thereon -- no matter how
incorrect. This cannot be the result intended by the Court.
Nor do I believe that my reading of Johnson offers what
might be viewed as a loophole through which appellate
courts can circumvent the limited constraints the Court
has placed upon their ability to review immunity
determinations by District Courts.

                                29


Keeping the applicable summary judgment principles as
well as the teachings of Johnson v. Jones in mind, I believe
that the only conclusion the present pretrial record
supports is that there is a genuine issue for trial on the
question of whether the conduct of the officers in this case
shocks the conscience.

At his deposition Greeley testified as follows:

       Q. And after Officer[s] Scherff and Woods left your
       building and while you were up watching The
       Terminator, you didn’t hear any sounds coming from
       Miss Schieber’s apartment, correct?

       A. Correct.

       Q. And the reason why you didn’t take any affirmative
       steps to take the door down was because you didn’t
       hear any sounds coming from Miss Schieber’s door, is
       that true -- I’m sorry, Miss Schieber’s apartment?

       A. Any further sounds after they had left?

       Q. Yes.

       A. Correct.

       Q. So let me just ask it clearer, is the reason that you
       didn’t take down Miss Schieber’s door after the officers
       left while you were still awake was because you didn’t
       hear any sounds coming from Miss Schieber’s
       apartment?

       A. Not entirely.

       Q. Was it one of the reasons?

       A. I mean it’s hard for me to predict what -- if I hear
       anymore noise what I would have done. That’s sort of
       -- but as far as I was concerned, once the police left,
       I was -- it was in their hands to break down the door
       because that’s what they’re trained to do. I don’t look
       at it as my -- I’m not trained to do so and I wasn’t.
       Q. But had you heard some sounds, you would have
       taken some affirmative actions?

       A. Probably, yes.

                                30


App. at 86.

Further, Greeley testified that, before the police arrived,
he had considered knocking down the door. However, when
asked what prevented him from doing so, he responded
that "I’d be endangering Leah [Greeley’s companion]
possibly, I’d be endangering myself . . . . I’m not trained to
be breaking down people’s doors . . . ." App. at 71. The
record also reveals that, prior to the arrival of the officers,
Greeley went downstairs to Reed’s apartment to seek
assistance from an individual named Hooman. At the time,
according to Greeley’s testimony, he was considering
breaking down Ms. Schieber’s door. Unfortunately, Hooman
was not there.

Given this record, the question of the impact of the 911
instruction on the neighbors, and whether it prevented Ms.
Schieber’s private rescue is one best left for a jury. That is,
even if the specific instruction to do nothing but call 911
was not given by the officers, a jury should be permitted to
determine whether "the record as a whole support[s] the
finding that the message conveyed by the officers was to do
nothing but call 911."

These, however, are not the only material facts developed
in the pretrial record that are relevant to the question of the
propriety of the officers’ conduct, and whether that conduct
is actionable. This presents two problems. First, Judge
Stapleton’s analysis of the officers’ actions during their
investigation does not go far enough. Put differently, and
perhaps more accurately, the focus of the analysis is
unduly narrow. Second, Judge Stapleton finds that a trier
of fact could not properly conclude that the officers were
deliberately indifferent to Ms. Schieber’s constitutional
rights because they "conducted an appropriate
investigation." I do not agree that the record evidence
supports this conclusion. More fundamentally, I cannot
agree that, given the record in this case, this is a
conclusion that is within the competence of this court to
make at this time. I will discuss each of these points in
turn.

Judge Stapleton’s opinion focuses its attention almost
exclusively on the District Court’s finding that the officers

                                31


instructed Greeley and the other neighbors who were
present that, should they hear anything else, they were to
do nothing themselves, and instead, call 911 for police
assistance. If that is all the officers did during their
investigation, a stronger argument could certainly be made
that, as a matter of law, this action does not demonstrate
the type of deliberate indifference that, under the
circumstances, shocks the conscience. It is not, however,
all that was done.

Amy Reed was one of the neighbors at the scene when
Woods and Scherff arrived. Reed provided the following
testimony:

       Q. Was there a conversation that you observed that
       took place between Mr. Greeley and the police after the
       police stopped knocking?

       A. I did hear a conversation between them.

       Q. Do you recall, sitting here today, what the
       conversation consisted of ?

       A. I remember as they were -- or let me step back. I
       remember them -- they had suggested some alternative
       possibilities for what he might have heard.

       Q. Do you recall what alternative possibilities the
       police may have suggested?

       A. They suggested that since it was 2 o’clock or
       thereabouts, that maybe people coming out of a bar,
       the noise had reached his apartment or perhaps he
       heard noises bouncing off of nearby buildings or walls
       in his apartment.

       Q. Did Mr. Greeley respond in anyway?

       A. Yes. He did not look favorably upon those
       explanations.

       Q. But did he respond to them?

       A. When they asked him, "Perhaps you heard people
       on the street", (sic) he said something like,"No, I don’t
       think so, no."

                                32


       Q. In your presence, did he ever express uncertainty
       as to where he believed the noises were coming from
       inside the -- noises were coming from?

       A. He was quite certain what he had heard, who he
       had heard and where it had come from when he woke
       me up. He relayed that to the police. . . .2

App. at 31-32.

There is expert testimony in the record that establishes
that when conducting an investigation of this type, police
officers should ask open ended questions of witnesses
rather than making suggestions of the type reflected in   the
exchange described by Reed. Judge Stapleton’s opinion
does not seem to consider the effect of this conduct on   this
investigation, other than its impact on the behavior of   the
private citizens at the scene. In my view, this renders   his
analysis critically flawed.

I believe this to be so for the following reasons. The result
of what the appellees characterize as the officers’"cross-
examination" of Greeley was that he appeared to be
"uncertain" about the source of the noises he’d heard that
morning. The appellees contend that the result of the use
of this arguably improper investigative technique, along
with the officers’ refusal to enter the apartment, was to
"cause any private citizen to believe that he too was barred
from making such entry." Appellees Brief at 28-29. This
argument sums up the difficulty I have with Judge
Stapleton’s analysis of the facts. If Greeley was in fact
uncertain, this uncertainty may have resulted from
improper questioning by the officers. Thus, while Judge
Stapleton focuses his attention upon the impact of the "911
instruction" on the neighbors, the record evidence, e.g.,
Reed’s testimony as well as expert opinion, establishes that
there is a need for a broader inquiry.
_________________________________________________________________

2. Judge Stapleton writes that when the officers arrived and Greeley
reported the source of the scream, "he exhibited uncertainty about its
source." Reed’s testimony alone would seem to put this fact squarely at
issue. Thus, I believe the District Court’s conclusion that Greeley was
uncertain places Judge Stapleton in the untenable position of weighing
this evidence. This is a job for a jury, not an appellate court.

                                33


This inquiry must be guided by more than just the
court’s instincts or sense of what it believes should be the
quantum of evidence necessary for a finding of liability in
circumstances like those before the court. For guidance,
Judge Stapleton looks to the Supreme Court’s decision in
County of Sacramento v. Lewis, 523 U.S. 833 (1998). He
notes that Lewis teaches that there are two critical
prerequisites to determining whether a tort of constitutional
proportions has been committed: first, an understanding
that "whether executive action is conscience shocking and
thus ‘arbitrary in the constitutional sense’ depends on the
context in which the action takes place," and second, an
exact analysis must be conducted of the circumstances
confronting the decision maker. See Lewis, 523 U.S. at
848-850. Judge Stapleton purports to adhere to this
mandate, however, I do not believe the effort can withstand
close scrutiny. Herein lies the source of my next, and last,
disagreement with his view.

Judge Stapleton writes that "[c]ertainly this situation is
much closer to that in Lewis [which involved a high speed
vehicle pursuit] than to that of a prison physician deciding
whether to treat a serious medical need." In other words, he
concludes that, although "an instantaneous judgment" was
not required, there was insufficient time to engage in
extended deliberation. Thus, Judge Stapleton suggests that
"[i]t may well be that these circumstances, like those in
Lewis, call for something more than a finding of‘mid-level
fault’ as a predicate for a conclusion that the officers’
conduct shocks the conscience." It is somewhat unclear as
to whether Judge Stapleton would, under circumstances
such as these, require proof of intentional conduct. He
reasons that he need not reach that issue. Instead, he
concludes that "the current record will not support a
finding of deliberate indifference."

Again looking to the Supreme Court for guidance, Judge
Stapleton concludes that the Lewis and Farmer v. Brennan,
511 U.S. 825, 837 (1994), cases support the finding that
deliberate indifference incorporates the concept of reckless
behavior. More specifically, analogizing to the prison doctor
situation, he concludes that, in order to find that Scherff
and Woods were deliberately indifferent to Ms. Schieber’s

                                34


plight, the record evidence would have to support the
conclusion that they had "an actual, subjective appreciation
of an excessive risk of serious harm to [Ms. Schieber] and
that [they] ‘consciously disregar[ed]’ that risk." The
underpinning for this conclusion is found in the following
statement by Judge Stapleton:

       Woods and Scherff were required to make a decision
       without delay and under the pressure that comes from
       knowing that the decision must be made on necessarily
       limited information. The required judgment involved
       the weighing of the important competing interests of
       personal security and privacy. This in turn required an
       evaluation of the dependability of Greeley’s report. The
       officers made the required judgment, and their
       discourse with the neighbors vouches that their focus
       was on the relevant considerations - the reliability of
       Greeley’s account and the impact of forced entry on
       [Ms. Schieber’s] privacy interests.

As Judge Stapleton writes, placement in the proper
context is critical in determining "the degree of culpability
required to meet the ‘shock the conscience’ standard." At
the outset, I question whether he has placed the facts and
circumstances of this case in the proper context as is
required by Lewis.

Judge Stapleton reasons that this case is "far from the
situation of prison doctors." First, I do not agree that the
instant facts place this case either "much closer to that in
Lewis" or "far from the situation of the prison doctors." The
facts and expertise upon which the court relies to reach
this determination are unclear to me. Judge Stapleton
writes that the officers "were required to make a decision
without delay and under the pressure that comes from
knowing that the decision must be made on necessarily
limited information." To the contrary, the record reveals
that at least one hour elapsed from the first report to the
police of noises from the Schieber apartment to when the
officers arrived on the scene. Further, upon their arrival,
they heard no further noises nor did they see any signs of
forced entry. Of course, the argument could be made that,
as a result of these facts, every second counted. But the
facts tend to belie this conclusion. If the officers believed

                                35


themselves under that kind of pressure, it seems that upon
arrival at the scene, given Greeley’s initial report of cries for
help, proper police procedure would have dictated that they
break the door in immediately. Regardless, however, of
whether this would have been the proper procedure, the
officers took the time to survey the outside of the apartment
for signs of forced entry. They also spoke with at least two
witnesses regarding their observations -- questioning one,
Greeley, rather extensively. Thus, while I can agree that the
circumstances do not place this case on the prison doctor
side of the calculus for determining deliberate indifference,
I cannot agree that the pressure was such that
categorization of these circumstances as more equivalent to
the hot pursuit scenario is appropriate either. Rather, I
think, these facts place this case somewhere in the middle
of the continuum of possibilities.

Moving to the second Lewis requirement, Judge
Stapleton’s "exact analysis" of the circumstances
confronting the officers can be summed up in the
conclusions noted above. The above-quoted passage from
Judge Stapleton’s opinion is the essence of his finding that
the conduct of the officers was not deliberately indifferent
to Ms. Schieber’s needs at the time. In sum, Judge
Stapleton made the following six conclusions: (1) the
officers needed to make a decision without delay, (2) they
were under pressure as a result of possessing only limited
information, (3) the situation confronting them involved a
judgment that required the weighing of important
competing interests, (4) the judgment depended upon an
evaluation of Greeley’s report, (5) the officers made the
required judgment, and (6) their conversation with the
neighbors, particularly Greeley, supports the conclusion
that they focused on the relevant considerations. As just
noted, each of these statements or findings is a conclusion.
As with any conclusion, it is proper to determine whether
there is a factual basis. Based on the pretrial record, I
believe that only one of these conclusions is properly
supported, and within the competence of this court to make
at this time, namely, the legal conclusion that there were
competing interests of personal security and privacy.

Rule 702 of the Federal Rules of Evidence recognizes that
there are occasions when a fact finder needs the assistance

                                36


of one with specialized knowledge in order to discharge its
responsibilities. I will not repeat my discussion of Judge
Stapleton’s application of the holding in Johnson v. Jones
here. I think it is enough to point out that, before this court
can judge the conduct of these officers, there must be
greater development of the record so that the court can
arrive at informed conclusions based upon adequately
adduced facts and not its own well-intended but unguided
supposition.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                37
