Schieber v. City of Philadelphia

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Precedential or Non-Precedential: Precedential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

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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.

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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

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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

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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

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