Rivas v. City of Passaic

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

4-26-2004

Rivas v. Passaic

Precedential or Non-Precedential: Precedential

Docket No. 02-3875

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PRECEDENTIAL

*City of Passaic; *Passaic Police

UNITED STATES COURT OF Department; Police Officer Paul

APPEALS FOR THE THIRD CIRCUIT Slater, #283; Police Officer

__________ Ross Capuana, #234; Police

Officer Robert Callaghan, #271;

Nos. 02-3875 and 02-3916 Police Officer Farallo, #299;

__________ Police Officer O’Donnell, #301;

Police Officer Robert Longo, #261,

MILAGROS RIVAS, Individually and Appellants 02-3916

as Administrator ad Prosequendum of

the ESTATE OF CARLOS RIVAS; *Dismissed per Court Order dated

AMAUREY RIVAS; SAGRARIO 2/27/03

RIVAS; CARLOS RIVAS, JR.;

AMINABEL RIVAS; PALOMA _________

RIVAS

On Appeal from

v. the United States District Court for the

District of New Jersey

CITY OF PASSAIC; PASSAIC Civil Action No. 99-CV-3523

POLICE DEPARTMENT; CITY OF District Judge: Honorable William Walls

PASSAIC-EMT DIVISION; ROSS __________

CAPUANA, POLICE OFFICER, #234;

PAUL SLATER, POLICE OFFICER, Argued on December 12, 2003

#283; ROBERT CALLAGHAN, ___________

POLICE OFFICER, #271; G.

CACERES, POLICE OFFICER, #307; Before: AMBRO, FUENTES, and

FARALLO, POLICE OFFICER, #299; GARTH, Circuit Judges

O'DONNELL, POLICE OFFICER,

#301; ROBERT LONGO, POLICE (Filed: April 26, 2004)

OFFICER, #261; GEORGE GARCIA, __________

EMT; AMALIN RODRIGUEZ, EMT;

MIKE LOVITCH, PARAMEDIC; BILL David L. Ganz, Esq. (Argued)

WALSH, PARAMEDIC; Ganz & Savin, LLP

PASSAIC-CLIFTON MICU; JOHN Five Ryder Road

DOES I THROUGH X Fair Lawn, New Jersey 07410

Counsel for Appellants Garcia and

George Garcia; Amalin Rodriguez, Rodriguez

Appellants,

02-3875

1

Peter W. Till, Esq. (Argued)

Law Offices of Peter W. Till

Garth, Circuit Judge:

105 Morris Avenue, Suite 201

Springfield, New Jersey 07081 This Section 1983 case focuses on

Counsel for Appellant Farallo the conduct of a group of police officers

and medical professionals who

Anthony J. Fusco, Jr., Esq. responded to an emergency in an

Fusco & Macaluso apartment where a middle-aged man was

150 Passaic Avenue experiencing a seizure. The seizure

P.O. Box 838 victim, after being restrained, died

Passaic, New Jersey 07055 shortly after the police arrived, thereby

Counsel for Appellant O’Donnell prompting a lawsuit by his family. The

District Court denied motions brought by

the police officers and the medical

Nicholas J. Palma, Esq. professionals for summary judgment,

1426 Broad Street giving rise to this appeal. We hold that

Clifton, New Jersey 07013 there are certain material factual disputes

Counsel for Appellant Slater that must be resolved by a jury.

Accordingly, we will affirm the District

Joel M. Miklacki, Esq. Court’s order with respect to EMTs

300 Broadacres Drive, 3rd Floor Amalin Rodriguez and George Garcia

Bloomfield, New Jersey 07003 and Police Officers Rosario Capuana,

Counsel for Appellant Callaghan Paul Slater, Robert Callaghan, Mauro

Farallo, and Timothy O’Donnell. We

Miles Feinstein, Esq. will dismiss Police Officer Robert

1135 Clifton Avenue Longo’s appeal.

Clifton, New Jersey 07013

Counsel for Appellant Capuana I.

Kathleen C. Goger, Esq. (Argued) On the morning of November 6,

Singer & Goger 1998, Milagros Rivas awoke in bed to

Renaissance Towers find her 44-year-old husband, Carlos

111 Mulberry Street Rivas, shaking uncontrollably. The

Townhouse 1-A Rivases lived with their five children on

Newark, New Jersey 07102 the second and third floors of a two-

Counsel for Appellees family house in Passaic, New Jersey.

_______________________ The house had an enclosed front porch,

from which a stairwell led up to the

OPINION OF THE COURT Rivases’ apartment.

_______________________

2

A. The Initial Medical Response Rodriguez provides a very

different account of what transpired

Because Mrs. Rivas spoke poor when she first entered the apartment. In

English, she asked one of her children to a sworn declaration submitted to the

call 911 for an ambulance. At District Court, Rodriguez claimed that:

approximately 7:05 a.m., emergency “Subsequent to my arrival, I was place

medical technicians (“EMTs”) George [sic] in eminent [sic] fear of my life

Garcia and Amalin Rodriguez arrived on when Carlos Rivas attach [sic] me

the scene. They were met on the street without provocation, put his arm around

by Mrs. Rivas, who testified that she my neck, and attempted (my view at the

immediately informed Rodriguez in time) to strangle me.” This account was

Spanish that her husband had corroborated by Garcia, who entered the

experienced some convulsions and that house after he parked the ambulance. He

he had previously had seizures. Mrs. testified that as he climbed the stairs to

Rivas also testified that she advised the Rivases’ apartment he saw

Rodriguez that Mr. Rivas was taking Rodriguez and Mrs. Rivas run out of the

diabetic medication and that Rodriguez apartment into a small vestibule at the

should not talk to or touch Mr. Rivas. top of the stairwell followed by Mr.

This last piece of information seems to Rivas, who he claims came towards

have been sound advice because Rodriguez and “put his hands on her

Rodriguez later testified that she had shoulders, like choking.”

learned as part of her medical training

that a patient experiencing a seizure Garcia claims he ducked under

should not be disturbed during the Mr. Rivas’s arm and wedged himself

period of the seizure. between Rodriguez and Mr. Rivas, so

that he could push Mr. Rivas back.

Rodriguez followed Mrs. Rivas Garcia described Mr. Rivas, who stood

into the apartment while Garcia parked approximately 5 feet, 5 inches tall and

the ambulance. Mrs. Rivas testified that weighed 240 pounds, as “physically

when they entered the apartment, she strong.” Garcia even went so far as to

found her husband standing in the living describe the situation as “life-

room looking ashen. According to her threatening.” Mrs. Rivas disputes these

testimony, Mr. Rivas raised his arms in statements as well, claiming that Garcia

front of him and began walking in their “did not put his body weight against my

direction “like a zombie,” but that she husband to protect [Rodriguez], since

and Rodriguez stepped out of his way. there was nothing to protect her from.”

Mrs. Rivas is adamant that her husband

never came into physical contact with It is undisputed that Garcia told

Rodriguez. Rodriguez to go into the apartment and

call for police backup. Meanwhile, Mr.

3

Rivas walked through the living room around this time that a third police

and into a bathroom, where he sat down officer, Rosario Capuana, entered the

on a closed toilet and rested his head apartment. As the three officers escorted

against a windowsill. Garcia followed Mr. Rivas through the kitchen, Officer

closely behind and waited outside the Slater claims to have noticed a large

bathroom. After calling for backup, knife on the kitchen table, prompting

Rodriguez questioned Mrs. Rivas in the him to remark, “There’s a knife on the

kitchen about her husband’s condition. table. Let’s go into the living room.”

Officer Slater testified that when he

B. The Initial Police Response placed his hand on Mr. Rivas’s shoulder

to direct him into the living room, Mr.

The first two police officers to Rivas became very aggressive and began

respond to the request for assistance punching and pushing him in the chest.

were Robert Callaghan and Paul Slater. Officers Slater and Callaghan claim they

Officer Callaghan testified that he and reacted by trying to restrain Mr. Rivas,

Officer Slater were informed upon their and that they all fell to the floor of the

arrival by Garcia that a male patient living room.

inside the apartment had assaulted

Rodriguez.1 Officer Callaghan also Mrs. Rivas, who was standing in

testified that he and Officer Slater did the kitchen when her husband exited the

not receive “any information as to Mr. bathroom, paints a very different picture

Rivas’ physical condition,” but this was of what transpired. She agrees that one

disputed by Garcia and Rodriguez, who of the officers grabbed her husband’s

signed an incident report which states shoulder as they walked through the

that: “Upon arrival of Police . . . EMT G. kitchen, but she claims her husband

Garcia informed the officer’s [sic] of the merely pulled his shoulder away and that

patient’s medical history (diabetes and he did not attack any of the officers. She

possible seizure hx: RX: Rezulin).” testified that the officers threw her

husband to the floor without any

The two officers proceeded provocation.

directly to the bathroom, where they

found Mr. Rivas sitting on the closed Officer Capuana provided yet a

toilet. Officer Callaghan instructed Mr. third version. He testified that he was

Rivas to leave the bathroom. Mr. Rivas walking in front of Mr. Rivas through

complied, but remained silent. It was the kitchen when he suddenly heard

grunting noises behind him. When he

turned around, he saw Mr. Rivas

1

Officer Slater testified that it experience what appeared to be a

was Rodriguez, not Garcia, who seizure, grunting and shaking violently.

informed them about the alleged assault. At his deposition, Capuana could not

4

recall what Officers Slater and Callaghan struggle, merely reached around blindly

were doing at the time, but he was with his arm and touched Officer

confident that no one was touching Mr. Callaghan’s thigh. Officers Callaghan

Rivas. He testified that Mr. Rivas fell to and Slater also allege that they were

the ground and began swinging violently bitten by Mr. Rivas.2

and kicking and that he (Officer

Capuana) and the other two officers tried Garcia and Rodriguez stayed out

to control Mr. Rivas. of the fray, but observed most of the

altercation. Garcia remembers one of the

C. The Struggle to Restrain Mr. Rivas officers sitting on Mr. Rivas’s back,

around the waistline. He testified that

The struggle on the living room this officer yelled, “Don’t you see he’s

floor between Mr. Rivas, who fell onto trying to get into my gun?,” and then

his stomach, and the three police officers proceeded to strike Mr. Rivas in the face

continued for several minutes. Officer with a flashlight. Towards the end of the

Slater, who was attempting to restrain struggle, Garcia left the apartment to

Mr. Rivas’s left arm, later described it as retrieve a lightweight stretcher from the

“a life and death game of twister.” ambulance.

Officer Callaghan, who says he was on

Mr. Rivas’s other side and was Rodriguez remained in the

attempting to restrain his right arm, kitchen during the struggle. She did not

testified that Mr. Rivas was “extremely observe the officers and Mr. Rivas fall to

strong, struggled violently and kept the floor, but she recalls seeing one of

pulling away.” The third officer, the officers place his knee in the middle

Capuana, kneeled behind Mr. Rivas and of Mr. Rivas’s back. She also testified

tried to pin down his legs. Officer that, during the struggle on the floor, one

Capuana testified that Mr. Rivas lost of the officers shoved his flashlight into

control of his bladder during the Mr. Rivas’s mouth and left it there for

struggle. “[p]robably not even five minutes.”

All three officers allege that at

one point during the struggle, Mr. Rivas 2

This allegation is corroborated

tried to grab Officer Callaghan’s pistol to some extent by hospital records,

from his holster. Officer Capuana which show that Officers Slater and

testified that Mr. Rivas “actually had it Callaghan were both admitted to Passaic

palmed in his hand,” but that Officer General Hospital for treatment. The

Callaghan was able to push Mr. Rivas’s records are somewhat difficult to read,

hand away. Mrs. Rivas disputes this but it seems Officer Slater was treated

allegation, claiming that her husband, for a leg injury and Officer Callaghan for

who was on his stomach throughout the a wrist injury.

5

Mrs. Rivas also remained in the because he felt “the scene was taken

kitchen during the struggle. She testified over by the police.” After the officers

that after the officers threw her husband placed Mr. Rivas on the stretcher, Garcia

to the ground, Officer Callaghan sat on bound his ankles with cloth restraints.

his back with his knees straddling Mr.

Rivas’s torso. She alleges that the Once Mr. Rivas was secured in

officers repeatedly pushed Mr. Rivas’s the stretcher, Garcia helped the officers

head into the carpet while they tried to carry him downstairs. They carried him

handcuff his wrists behind his back. down the stairs head first, even though

Mrs. Rivas testified that she kept yelling EMTs are trained to carry patients down

at the police, “It’s not like that — he’s stairs feet first. Again, Garcia did not

very sick,” but that Officer Callaghan say anything to the police officers.

stood up and yelled, “bitch shut your

mouth.” Mrs. Rivas’s daughter gave The Rivas family claims the

similar testimony. officers were making crude remarks like,

“Damn, he’s heavy, this pig, this dog,”

D. Mr. Rivas is Placed on a Stretcher as they carried Mr. Rivas down the

stairs. Near the bottom of the stairwell,

After several minutes passed, a one of the straps on the stretcher

second wave of police officers arrived apparently snapped and Mr. Rivas slid

on scene. They were Officers Mauro out of the stretcher head first, struck his

Farallo, Timothy O’Donnell, Robert head, and tumbled down the steps.

Longo and Glisette Caceras. With their While he lay on the stairs, he lost control

assistance, the officers were able to of his bowels and defecated himself.

handcuff Mr. Rivas’s hands behind his Officers Longo and O’Donnell grabbed

back and a short time later, Mr. Rivas Mr. Rivas by his arms and slid him down

apparently came out of his seizure and the remaining stairs and onto the front

became still. Garcia returned to the porch.

apartment and the officers picked Mr.

Rivas up and placed him face down on Rodriguez, who was standing at

the stretcher. Garcia knew from his the top of the stairs, did not see Mr.

EMT training that the proper protocol is Rivas fall out of the stretcher, but she

to place a patient face up on a stretcher heard the commotion and looked over.

to make sure the airway remains clear, The smell of vomit and feces quickly

which is particularly important for a overpowered her and she ran outside.

seizure victim. Garcia later As she passed through the porch, she

acknowledged that he became concerned saw Mr. Rivas laying on the floor with

about Mr. Rivas’s airway when the some blood near his head.

officers placed him face-down on the

stretcher, but that he did not speak up Officer Longo testified that Mr.

6

Rivas became combative on the porch. a.m., Mr. Rivas was pronounced dead.

He testified that, together with Officers

Farallo and O’Donnell, he held Mr. F. The Medical Examiner’s Report

Rivas down on the porch. Officer

Longo said he held Mr. Rivas down by Later that day, a Medical

placing his body weight on top of Mr. Examiner conducted a postmortem

Rivas’s shoulders, and that the other examination and autopsy of Mr. Rivas’s

officers used similar means to restrain corpse. He noted in his report that Mr.

Mr. Rivas. Rivas’s two upper front teeth were

partially dislodged. The report also

E. The Paramedics’ Arrival noted a number of superficial contusions

and abrasions, but the Medical Examiner

It was around this time that did not find any evidence of trauma or

paramedics Michael Lovitch and injury that would have contributed to

William Walsh arrived. Walsh Mr. Rivas’s death. After a toxicology

immediately noticed Mr. Rivas lying report came back negative, the Medical

face down on the enclosed porch, Examiner concluded that Mr. Rivas had

allegedly moving his head and arms in died from a “Cardio-Respiratory Arrest

an effort to resist the police officers who Following Acute Psychotic Episode of

were on top of him. While the Undetermined Etiology,” i.e., Mr.

paramedics conferred with Rodriguez Rivas’s heart and lungs stopped

and Garcia about Mr. Rivas’s medical functioning following a period of intense

condition, Mr. Rivas suddenly became physical activity, with the cause of the

very still and relaxed. psychotic episode being unknown. The

manner of death was listed as “Natural.”

The officers carried Mr. Rivas to

an ambulance stretcher waiting on the G. The Rivas Family’s Medical Expert

sidewalk and placed him face-down in

the stretcher, but Lovitch and Walsh The Rivas family subsequently

instructed the officers to turn Mr. Rivas hired Dr. Michael Baden, a well-known

onto his back. When they did so, forensic pathologist, to render a second

Lovitch and Walsh discovered that Mr. opinion on Mr. Rivas’s cause of death.

Rivas was not breathing and had no After reviewing all of the relevant

pulse. They immediately placed Mr. materials, Dr. Baden concluded that the

Rivas in the ambulance and began Medical Examiner had correctly found

administering advanced life support. En that Mr. Rivas had experienced a

route to the hospital, the paramedics respiratory arrest resulting in cardiac

succeeded in reestablishing a pulse and arrest. Dr. Baden believed, however,

heart rhythm, but they could not get Mr. that Mr. Rivas’s death followed “an

Rivas to breathe on his own. At 8:20 acute medical episode rather than ‘an

7

acute psychotic episode’ and the etiology 9.6(a)(1),” and it placed Garcia and

was not ‘undetermined’ but due to Rodriguez on provisional status for six

asphyxia caused by police action that months.

prevented Mr. Rivas from breathing.”

Dr. Baden therefore concluded that the A separate investigation was led

manner of death should have been listed by the Internal Affairs Division

in the Medical Examiner’s report as a (“Internal Affairs”) of the Passaic Police

homicide. Department. After interviewing a

number of witnesses and reviewing

H. Ensuing Investigations various reports and dispatch tapes,

Internal Affairs concluded that the level

Several state and local agencies of force used by the police officers

investigated the events surrounding Mr. “appeared to have been reasonable and

Rivas’s death. One such investigation did not appear to be excessive.” In

was conducted by the New Jersey reaching that conclusion, Internal Affairs

Department of Health and Senior noted that the Medical Examiner’s report

Services (the “Health Department”), contained no findings that suggested

which oversees the provision of basic excessive force had been used.

life support services by EMTs. The

Health Department reviewed the actions With respect to the EMTs,

taken by Rodriguez and Garcia and Internal Affairs concluded that

ultimately determined that the care they Rodriguez had panicked and

provided to Mr. Rivas “deviated misleadingly told the police officers that

significantly from acceptable EMT-B Mr. Rivas had attempted to choke her,

practice.” The Health Department cited when in fact he had merely touched her

five instances of Rodriguez and Garcia’s shoulder. Internal Affairs also faulted

failure to follow proper procedure. They the EMTs for not furnishing the police

were: (1) placing Mr. Rivas face down in officers with adequate medical

the stretcher; (2) not properly restraining information about Mr. Rivas’s condition

him in the stretcher; (3) carrying him and for allowing the police to take

down the stairs head first; (4) failing to control of the scene.

take adequate spinal immobilization

precautions after Mr. Rivas fell from the The report issued by Internal

stretcher; and (5) not properly Affairs also addressed the allegation that

completing a patient care report. The one of the police officers had struck Mr.

Health Department concluded that these Rivas in the head with a flashlight. The

five deviations “collectively report noted that this allegation first

demonstrate[d] incompetence or inability surfaced when Internal Affairs

to provide adequate basic life support interviewed Rodriguez and Garcia, but

services in violation of N.J.A.C. 8:40A- that neither of them had mentioned a

8

blow to Mr. Rivas’s head in their initial but denied all of the remaining motions.

written reports or interviews with the The District Court explained in an oral

Health Department. Based on those opinion that it was denying summary

omissions and the fact that Mrs. Rivas judgment “because of the factual

did not see the officers strike her circumstances in contest.” The District

husband, Internal Affairs concluded that Court dismissed the Passaic Police

Rodriguez and Garcia had fabricated that Department and the City of Passaic

allegation “in order to shift the burden EMT-Division because those two

away from the EMT’s and onto the defendants appeared to be departments

police personnel.” or divisions of the City of Passaic, which

remained responsible for their conduct.

I. The Rivas Family Files Suit With the exception of paramedics Walsh

and Lovitch and the Passaic-Clifton

The Rivas family filed this MICU, all of the defendants that

lawsuit in the District Court for the remained in the lawsuit appealed the

District of New Jersey against the City of District Court’s ruling and we

Passaic, the Passaic Police Department, subsequently consolidated the appeals.3

the Passaic EMT Division, the

responding police officers, EMTs Garcia

and Rodriguez, and Paramedics Walsh 3

The District Court in its opinion

and Lovitch, Passaic-Clifton MICU did not address “John Does I through X”

(Mobile Intensive Care Unit), and “John and did not rule respecting them. The

Does I through X.” The amended charging portions of the District Court’s

complaint alleges violations of both Order dated October 4, 2002 and entered

federal and state law. The federal claim on October 8, 2002, read as follows:

is based on 42 U.S.C. § 1983, while the

state claims are based on common law 1) The motions for summary

tort principles, such as failure to train judgment by defendants City of Passaic,

and supervise, failure to render medical Police Officer Paul Slater, Police Officer

care, intentional and negligent infliction Ross Capuana, Police Officer Robert

of emotional distress, and assault and Callaghan, Police Officer Farallo, Police

battery. Following discovery, the City of Officer O’Donnell, Police Officer

Passaic, the Passaic Police Department, Robert Longo, EMT George Garcia, and

and all of the individual defendants EMT Amalin Rodriguez are denied for

except Paramedics Lovitch and Walsh the reasons placed on the record by the

and “John Does I through X” moved for Court on September 30, 2002;

summary judgment.

2) The motion for summary

The District Court granted judgment by defendant Police Officer G.

summary judgment to Officer Caceres, Caceres is unopposed and is granted; and

9

II. APPEALABILITY if not filed divests our Court of

jurisdiction, an appellant’s failure to file

Before reaching the merits, we an appellate brief does not deprive a

address our appellate jurisdiction. federal appellate court of jurisdiction and

consequently, without more, we do not

A. Officers Longo and Capuana dismiss an appeal if an appellant fails to

file a brief within the prescribed time

The Rivas family has moved to limits. See Marcaida v. Rascoe, 569

dismiss the appeals of Officers Longo F.2d 828, 830 (5th Cir. 1978). We do,

and Capuana.4 Although both officers however, retain discretion to dismiss

filed a notice of appeal, they did not such appeals and we choose to invoke

submit written briefs. Pursuant to that sanction here against Officer Longo

Federal Rule of Appellate Procedure because he has neither submitted a

31(c), “[i]f an appellant fails to file a written brief nor provided an explanation

brief within the time provided by this for his failure to do so. Indeed, Officer

rule, or within an extended time, an Longo did not even respond to the

appellee may move to dismiss the motion to dismiss his appeal.

appeal.”

We will not, however, dismiss

Unlike a notice of appeal, which Officer Capuana’s appeal. Unlike

Officer Longo, Officer Capuana

submitted a letter from his attorney

3) Passaic Police Department and advising us that he was joining in

City of Passaic EMT-Division are hereby Officer Callaghan’s brief. Although the

dismissed as defendants, it appearing Rivas family contends that Officer

that they are not separate entities but Capuana’s “reliance on the Callaghan

departments or divisions of defendant brief is tantamount to filing no brief at

City of Passaic which has been and all” because Officer Callaghan’s brief

remains responsible for their conduct. “contains no reference to the actions of

4

The Rivas family also moved to Officer Capuana,” we are not persuaded

dismiss the City of Passaic’s appeal, by that argument. It is true that Officer

asserting that the City of Passaic could Callaghan’s brief does not focus on

not claim qualified immunity and citing Officer Capuana’s conduct, but the

Owen v. City of Independence, 445 U.S. record contains substantial testimony

622 (1980) to that effect. A panel of this from, and concerning, Officer Capuana.

Court granted the Rivas family’s motion Moreover, Officers Capuana and

because, absent the availability of a Callaghan are similarly situated as they,

qualified immunity defense, see infra at together with Officer Slater, were the

Section II. B., this Court has no appellate first three officers on the scene and

jurisdiction. together they restrained Mr. Rivas on the

10

living room floor. Consequently, the has ended. See Cohen v. Beneficial

legal arguments presented in Officer Industrial Loan Corp., 337 U.S. 541,

Callaghan’s brief apply, in large part, to 546-47 (1949). These “collateral orders”

Officer Capuana as well. For these are those orders that (i) conclusively

reasons, we deny the Rivas family’s determine the disputed issue, (ii) resolve

motion to dismiss Officer Capuana’s an important issue entirely separate from

appeal. the merits of the lawsuit, and (iii) cannot

be effectively reviewed on appeal from a

B. Officers Slater, Farallo and final judgment. See id. at 546; see also

O’Donnell and EMTs Garcia and Coopers & Lybrand v. Livesay, 437 U.S.

Rodriguez 463, 468 (1978).

The Rivas family has also moved Under certain circumstances,

to dismiss the appeals of Officers Farallo orders denying a motion for summary

and O’Donnell and the appeals of EMTs judgment fall within the scope of the

Garcia and Rodriguez on the ground that collateral order doctrine. In Mitchell v.

the issues raised in their written briefs Forsyth, 472 U.S. 511 (1985), the

are evidentiary, and as such are not Supreme Court explained that an order

eligible for interlocutory review. In denying a defendant’s motion for

addition, the Rivas family moved to summary judgment can be immediately

dismiss a portion of Officer Slater’s appealed so long as: (1) the defendant is

appeal for the same alleged problem. a public official asserting a qualified

immunity defense; and (2) the issue on

As a general rule, federal appeal is whether the facts alleged by the

appellate courts have jurisdiction to hear plaintiff demonstrate a violation of

appeals only from “final decisions” of clearly established federal law, not

the district courts. See 28 U.S.C. § 1291. which facts the plaintiff might be able to

Accordingly, we normally do not prove at trial. Id. at 528. The Supreme

entertain appeals from a district court Court explained in Mitchell that this kind

order denying a motion for summary of summary judgment order could not

judgment because such orders do not put await an appeal following trial because a

an end to the litigation. See, e.g., vital importance of a qualified immunity

McNasby v. Crown Cork & Seal Co., defense is to protect public officials from

832 F.2d 47, 49 (3d Cir. 1987). The having to stand trial—a right which

United States Supreme Court has cannot be effectively vindicated

explained, however, that certain following trial. Id. at 526.

“collateral orders” amount to final

decisions for purposes of taking an The Mitchell Court found more

appeal even though the district court may difficult the “separability” question, that

have entered those orders before the case is, whether the issue of qualified

11

immunity is completely separate from established law, whether

the merits of an underlying lawsuit. The the law clearly proscribed

Court concluded, however, that: “it the actions the defendant

follows from the recognition that claims he took.

qualified immunity is in part an

entitlement not to be forced to litigate Id. at 528 (footnote omitted).

the consequences of official conduct that

a claim of immunity is conceptually In Johnson v. Jones, 515 U.S. 304

distinct from the merits of the plaintiff’s (1995), the Supreme Court made clear

claim that his rights have been violated.” what it had suggested in Mitchell,

Id. at 527-28. The Court felt that this namely, that the collateral order doctrine

“conceptual distinctness” made the does not permit an appeal from an order

immediately appealable issue “separate” denying a motion for summary judgment

from the merits of the plaintiff’s claim, if the issue raised on appeal is “whether

in part because an: or not the evidence in the pretrial record

[is] sufficient to show a genuine issue of

appellate court reviewing fact for trial.” Id. at 307.

the denial of the

defendant’s claim of Johnson involved a Section 1983

immunity need not claim against five police officers for use

consider the correctness of of excessive force in making an arrest.

the plaintiff’s version of Three of the officers moved for summary

the facts, nor even judgment on qualified immunity

determine whether the grounds, arguing that there was

plaintiff’s allegations insufficient evidence in the record to

actually state a claim. All permit a reasonable juror to find the

it need determine is a officers were present when the plaintiff

question of law: whether was beaten. The district court denied the

the legal norms allegedly motion, concluding that there was

violated by the defendant enough evidence to defeat summary

were clearly established at judgment, and the officers appealed

the time of the challenged invoking the collateral order doctrine.

actions or, in cases where The Supreme Court unanimously held

the district court has that appellate jurisdiction was lacking,

denied summary judgment explaining that Mitchell did not permit

for the defendant on the an appeal from an order denying

ground that even under the summary judgment if the order, “though

defendant’s version of the entered in a ‘qualified immunity’ case,

facts the defendant’s determines only a question of ‘evidence

conduct violated clearly sufficiency,’ i.e., which facts a party

12

may, or may not, be able to prove at performance of official duties,” we have

trial.” Id. at 313. also determined that the State of New

Jersey confers no such right. See Brown

We recently announced that we v. Grabowski, 922 F.2d 1097, 1107,

understood Johnson to mean that, “if a 1109 (3d Cir. 1990).5 Consequently, we

defendant in a constitutional tort case lack jurisdiction to consider Officers

moves for summary judgment based on Farallo’s and O’Donnell’s arguments

qualified immunity and the district court that the District Court erred in denying

denies the motion, we lack jurisdiction to their defense of qualified immunity

consider whether the district court under New Jersey’s Tort Claims Act.

correctly identified the set of facts that

the summary judgment record is We also dismiss so much of the

sufficient to prove; but we possess appeals of Officers Slater and EMTs

jurisdiction to review whether the set of Garcia and Rodriguez to the extent they

facts identified by the district court is raise issues of causation. Officer Slater

sufficient to establish a violation of a argues that he cannot be held liable

clearly established constitutional right.” because Mr. Rivas allegedly had an

Ziccardi v. City of Philadelpia, 288 F.3d enlarged heart and therefore died from

57, 61 (3d Cir. 2002) (footnote omitted). natural causes. In a similar vein, Garcia

and Rodriguez contend that none of their

Against this background, we turn actions, omissions, or inactions

to the instant appeals. As noted above, proximately caused Mr. Rivas’s death.

the Rivas family contends that Officers While we are aware that a Section 1983

Farallo, Slater and O’Donnell and EMTs plaintiff must demonstrate that the

Garcia and Rodriguez have improperly defendant’s actions were the proximate

raised evidentiary issues on appeal.

After carefully reviewing the written

briefs, we have decided not to dismiss in 5

In Brown, we were called upon

their entirety any of the appeals. We to decide whether New Jersey law

find, however, that a number of the bestowed upon its officials the right to

issues raised in the briefs are not not stand trial. After carefully

properly before us. For example, we do examining New Jersey’s statutory and

not have jurisdiction to review the common law, and noting the general

District Court’s denial of qualified reluctance by New Jersey state courts to

immunity to the defendants on the entertain interlocutory appeals, we

pendent state law claims. While we have concluded that New Jersey law protected

recognized that such claims are state officials only from ultimate liability

immediately appealable “if the state has and did not give them immunity from

conferred an underlying substantive litigation. See Brown, 922 F.2d at 1109.

immunity from suits arising from the

13

cause of the violation of his federally The threshold issue in any Section

protected right, see Martinez v. 1983 lawsuit is whether the plaintiff has

California, 444 U.S. 277, 284-85 (1980), sufficiently alleged a deprivation of a

the presence of the requisite causation is constitutional right. Estate of Smith v.

normally a question of fact for the jury. Marasco, 318 F.3d 497, 505 (3d Cir.

See Estate of Bailey v. County of York, 2003). Because Section 1983 does not

768 F.2d 503, 511 (3d Cir. 1985), create any substantive rights, the plaintiff

overruled on other grounds by must be able to point to an independent

DeShaney v. Winnebago County Dep’t of constitutional or statutory right. Brown

Social Servs., 489 U.S. 189 (1989). As v. Commonwealth of Pa. Dep’t of Health

such, evidentiary issues bearing on the Emer. Med. Servs. Training Inst., 318

merits of the counts do not qualify under F.3d 473, 477 (3d Cir. 2003).

Mitchell for interlocutory review.

A. EMTs Garcia and

We find that the remaining issues, Rodriguez—“State-Created Danger”

which we address below, raise legal

questions and therefore are properly The Rivas family contends that

raised on appeal. Garcia and Rodriguez are liable because

they allegedly exposed Mr. Rivas to a

III. STANDARD OF REVIEW danger that he otherwise would not have

encountered.6 The Rivas family refers to

On review of a denial of summary the “state-created danger” theory of

judgment, we apply a plenary standard of liability. While our consideration of the

review. See Fed. Home Loan Mortgage

Corp. v. Scottsdale Ins. Co., 316 F.3d

431, 443 (3d Cir. 2003). In doing so, we 6

The Rivas family also asserts

assess the record using the same

that EMTs Garcia and Rodriguez

summary judgment standard that guides

violated Mr. Rivas’s substantive due

the district courts. See Farrell v.

process rights by failing to provide Mr.

Planters Lifesavers Co., 206 F.3d 271,

Rivas with any medical care while he

278 (3d Cir. 2000). To prevail on a

was in police custody (a.k.a. the “special

motion for summary judgment, the

relationship” doctrine). The District

moving party must demonstrate “that

Court did not address this claim.

there is no genuine issue as to any

Although it did not comment on this

material fact and that the moving party is

argument, we surmise it did not

entitled to a judgment as a matter of

specifically address this claim because of

law.” Fed. R. Civ. P. 56(c).

its ultimate ruling. Our review of the

record reveals that the elements for a

IV. THE MERITS OF THE special relationship claim do not exist

SUMMARY JUDGMENT MOTIONS under the circumstances of this case.

14

“state-created danger” doctrine started Applying Kneipp’s four elements

with Brown v. Grabowski, 922 F.2d here, we find that the Rivas family has

1097 (3d Cir. 1990), it was not until adduced sufficient evidence (evidence

Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. which the EMTs dispute), as to whether

1996) that we held a viable claim could Garcia and Rodriguez deprived Mr.

be asserted where the state had created a Rivas of his right to be free from a state-

danger. We explained in Kneipp that in created danger.

order to state such a claim a plaintiff

must show: (1) that the harm ultimately First, was the harm to Mr. Rivas

caused to the plaintiff was foreseeable fairly foreseeable? On the morning in

and fairly direct; (2) the state actor acted question, it is undisputed that Mr. Rivas

in willful disregard for the plaintiff’s was suffering from one or more seizures.

safety; (3) there was some relationship Both Garcia and Rodriguez knew that

between the state and the plaintiff; and Mr. Rivas was either in the throes of, or

(4) the state actor used his authority to coming out of, a seizure when they

create an opportunity for danger that arrived. Both Garcia and Rodriguez had

otherwise would not have existed. Id. at learned during their medical training that

1208. seizure victims should not be restrained,

even when the convulsions appear to

In Kneipp, a police officer have ended. They had also been

stopped a married couple returning home instructed to ensure that a patient’s

on foot after a night of drinking at a airway should remain open and

local tavern. The police determined that unobstructed.7 They called for police

both individuals were intoxicated, but

the husband was given permission to

leave, and he assumed the police would 7

At his deposition, Garcia was

take his wife either to the hospital or the asked what his training had taught him to

police station. Instead, the police let the do when he encountered a seizure

woman proceed home on foot alone. victim. Garcia responded that he had

She was found later that night at the been instructed to “try to let the patient

bottom of an embankment, where she have the seizure, . . . give oxygen, call

had fallen and suffered debilitating medics as soon as possible and transport

injuries as a result of her exposure to the the patient.” Rodriguez gave similar

cold. On those facts, we held that there testimony at her deposition when she

was a triable issue as to whether the testified that, “[w]henever a patient is

police had affirmatively placed the wife having a seizure, you have to let the

in a position of danger such that she had patient finish with the seizure, ALS

made a viable showing under Section [Advanced Life Support] has to be there,

1983. See id. at 1201-03. we have to give oxygen, assess vital

signs.”

15

assistance shortly after arriving on the Supreme Court explained that only an

scene. “intent to harm” standard of culpability

would shock the conscience. Id. at 853

According to the testimony of one (quoting Whitley v. Albers, 475 U.S.

of the police officers, Garcia and 312, 320 (1986)).

Rodriguez informed the police that Mr.

Rivas had assaulted one of them, but did Because conduct that “shocks the

not inform the police about Mr. Rivas’s conscience” under one set of

medical condition or warn the officers circumstances may not have the same

that Mr. Rivas should not be restrained. effect under a different set of

Given this evidence and the inferences circumstances, the standard of

most favorable to the Rivas family as the culpability for a substantive due process

non-movants, a reasonable jury could violation can vary depending on the

find that the harm which befell Mr. situation. In Miller v. City of

Rivas was a foreseeable and fairly direct Philadelphia, 174 F.3d 368 (3d Cir.

result of the actions taken by Garcia and 1999), for example, we recognized that a

Rodriguez. social worker who attempts to remove a

child from his or her parents’ custody

Second, we conclude that the does not, in contrast to a police officer

Rivas family has produced sufficient, engaged in a high-speed pursuit, have to

albeit disputed, evidence to raise a make split-second decisions. Id. at 375.

material issue as to whether Garcia and Nevertheless, we noted that a social

Rodriguez exhibited the standard of worker in those circumstances must act

culpability necessary to impose liability. with some urgency and does not have the

Although Kneipp remains good law luxury of proceeding in a deliberate

today, recent cases have refined this manner. Id. We therefore held that the

second element in the four-part test. “shock-the-conscience” test could be met

Most notably, the Supreme Court has only by adducing evidence that the social

held, in the context of a high-speed worker’s actions were grossly negligent

police chase resulting in death, that a or arbitrary, a less onerous standard than

Section 1983 plaintiff had to an intent-to-harm standard. Id. at 375-

demonstrate that the police officers’ 76.

conduct “shocked the conscience” in

order to establish a constitutional In Ziccardi v. City of

violation under the Due Process Clause. Philadelphia, 288 F.3d 57 (3d Cir.

County of Sacramento v. Lewis, 523 U.S. 2002)—a case involving emergency

833 (1998). Because the officers in that medical actions—we further elaborated

case had to act “‘in haste, under on the necessary state of mind to prove

pressure, and frequently without the due process violations in situations

luxury of a second chance,’” the where a state actor must act with some

16

urgency. We noted that Miller, at 174 Id.

F.3d at 375-76, “appears to have

demanded proof of something less than Thus, the Rivas family can only

knowledge that the harm was practically meet the second element of the Kneipp

certain but more than knowledge that test by presenting evidence that Garcia’s

there was a substantial risk that the harm and Rodriguez’s conduct shocks the

would occur.” Ziccardi, 288 F.3d at 66. conscience by consciously disregarding a

We ultimately settled on the following substantial risk that Mr. Rivas would be

test: “[W]e understand Miller to require seriously harmed by their actions.

in a case [where an official had to act Rodriguez and Garcia both claim that

with some urgency], proof that the Mr. Rivas was physically combative and

defendants consciously disregarded, not attempted to strangle Rodriguez when

just a substantial risk, but a great risk she first entered the apartment. If that

that serious harm would result . . . .” Id. allegation is true, then it was reasonable

for them to call for police back-up.8 In

We subsequently held that the fact, Garcia testified that the attack on

“shock-the-conscience” standard also Rodriguez led him to believe that Mr.

applied to emergency medical personnel. Rivas was a mental patient, not a seizure

In Brown v. Commonwealth of victim.

Pennsylvania Department of Health

Emergency Medical Services Training On the other hand, there is

Institute, 318 F.3d 473 (3d Cir. 2003), evidence in the record which suggests

the parents of an infant who died of that Mr. Rivas did not attack Rodriguez

asphyxia sued, among others, two EMTs and that Rodriguez simply panicked at

who had responded to the 911 call. The the sight of Mr. Rivas walking towards

parents alleged, among other things, that her with his arms extended in front of

the EMTs had gotten lost on their way to him. A jury crediting this version could

the child’s residence and thereby a delay find that Rodriguez and Garcia

occurred in removing a grape from the unnecessarily called for police

child’s throat. Id. at 481. We assistance. More importantly, it would

announced in Brown that “the ‘shocks then appear that there had been a

the conscience’ standard should apply in misrepresentation to the police that Mr.

all substantive due process cases if the Rivas had attacked Rodriguez, leading to

state actor had to act with some the conclusion that Garcia and

urgency.” Id. at 480. We further held Rodriguez neglected to tell the police

that the “shock-the-conscience” standard

“applied to the actions of emergency

medical personnel—who likewise have 8

Rodriguez testified that she had

little time for reflection, typically making been trained to call for backup if she

decisions in haste and under pressure.” encountered a combative patient.

17

that Mr. Rivas was suffering from a The third element in the Kneipp

seizure and should not be restrained.9 test inquires whether there existed some

relationship between the state and the

In sum, these contrasting facts plaintiff. The relationship requirement

satisfy us that summary judgment could under the state-created danger theory

not be granted at this stage. A jury could contemplates a degree of contact such

find, based on this version of events, that that the plaintiff was a foreseeable victim

Garcia and Rodriguez consciously of the defendant’s acts in a tort sense.

disregarded a great risk of serious harm See Kneipp, 95 F.3d at 1209 n.22.

to Mr. Rivas by misrepresenting the

assault and then abandoning Mr. Rivas

to the police, particularly since EMTs are

supposed to render aid to those in need Lower Merion, 313 F.3d 144 (3d Cir.

of medical assistance. If Garcia and 2002), in which the district court had

Rodriguez misrepresented the assault, held, without elaboration, that the state

not only did they abdicate their duty to officials were not entitled to summary

render medical assistance, but they judgment on the basis of qualified

placed Mr. Rivas in greater danger by immunity because the plaintiffs had

falsely accusing him of acting violently. raised genuine issues of material fact.

A jury could find, depending on whose We announced on appeal a new,

testimony it credits, that such conduct prospective rule requiring district courts

shocks the conscience.10 to “specify those material facts that are

and are not subject to genuine dispute

9

Of course, this fact is also in and explain their materiality.” Id. at 146.

dispute because Rodriguez and Garcia This rule was necessary, the Court

signed an incident report which states explained, so that future panels could

that Garcia informed the police officers carry out their appellate review function

about Mr. Rivas’s medical history when without exceeding the limits of their

they arrived at the apartment. Garcia, jurisdiction. Id. However, our reading

however, seemingly contradicted this of the record persuades us that, before

account at his deposition. When asked if reaching the merits of the summary

he said anything to the police officers judgment motions, the District Court

before they brought Mr. Rivas out of the discussed in some detail the underlying

bathroom, Garcia flatly answered, “No.” facts and, in doing so, identified several

disputed facts. To the extent there are

10

Garcia and Rodriguez argue on any gaps in the District Court’s factual

appeal that the District Court failed to recitation, we can “determine what facts

explicitly find which material facts are in the district court, in the light most

dispute. This argument rests largely on favorable to the nonmoving party, likely

our holding in Forbes v. Township of assumed.” Johnson, 515 U.S. at 319.

18

In Morse v. Lower Merion School [the relationship] determination is

District, 132 F.3d 902 (3d Cir. 1997), we foreseeability”).

explained that the relationship must be

sufficiently close to exclude “those The last element of the Kneipp

instances where the state actor creates test asks whether the state actor used his

only a threat to the general population,” or her authority to create an opportunity,

but not so restrictive as to limit “the which otherwise would not have existed,

scope of § 1983 to those instances where for the specific harm to occur. See

a specific individual is placed in Kneipp, 95 F.3d at 1209. A reasonable

danger.” Id. at 913. Attempting to find factfinder could conclude that the

a workable medium between those two EMTs’ decision to call for police backup

ends of the spectrum, we held in Morse and then (1) inform the officers on their

that the plaintiff must be “a member of a arrival that Mr. Rivas had assaulted

discrete class of persons subjected to the Rodriguez, (2) not advise the officers

potential harm brought about by the about Mr. Rivas’s medical condition,

state’s actions.” Id. and (3) abandon control over the

situation, when taken together, created

On the existing record, a jury an opportunity for harm that would not

could find that Mr. Rivas was a member have otherwise existed. Were it not for

of a “discrete class” of individuals those acts, Mr. Rivas presumably could

subjected to a potential harm caused by have remained in the apartment’s

Garcia and Rodriguez’s actions. The bathroom for the duration of his seizure

EMTs were responding to a 911 call. without incident.

The very purpose of their visit to the

Rivas household was to provide medical B. The Police Officers—Excessive

care to Mr. Rivas and to reduce, to the Force

extent possible, the amount of danger in

which he found himself as a result of his The Rivas family asserts that the

seizure. If the jury credits Officer police used excessive force against Mr.

Callaghan’s testimony that he and Rivas during their encounter with him

Officer Slater were told by the EMTs and thereby violated his constitutionally

that Mr. Rivas physically assaulted protected right. The Supreme Court has

Rodriguez but were not given any held that all claims of excessive force by

information about his medical condition, police officers, in the context of an

it is foreseeable that Mr. Rivas would be arrest, investigatory stop, or other

among the “discrete class” of persons “seizure,” should be analyzed under the

placed in harm’s way as a result of Fourth Amendment. Graham v. Connor,

Garcia and Rodriguez’s actions. See 490 U.S. 386, 395 (1989). “A claim for

Morse, 132 F.3d at 913 (explaining that excessive force under the Fourth

“[t]he primary focus when making . . . Amendment requires a plaintiff to show

19

that a seizure occurred and that it was police action are themselves violent or

unreasonable.” Curley v. Klem, 298 dangerous, the duration of the action,

F.3d 271, 279 (3d Cir. 2002). A seizure whether the action takes place in the

occurs “[w]henever an officer restrains context of effecting an arrest, the

the freedom of a person to walk away.” possibility that the suspect may be

Tennessee v. Garner, 471 U.S. 1, 7 armed, and the number of persons with

(1985). Because it is undisputed that a whom the police officers must contend at

seizure occurred in this case, the only one time.” Sharrar v. Felsing, 128 F.3d

question is whether it was unreasonable. 810, 822 (3d Cir.1997). The

reasonableness of the use of force is

An excessive force claim must be normally an issue for the jury. See

evaluated “from the perspective of a Abraham v. Raso, 183 F.3d 279, 290 (3d

reasonable officer on the scene, rather Cir. 1999).

than with the 20/20 vision of hindsight”

and “must embody the allowance for the While some courts “freeze the

fact that police officers are often forced time frame” and consider only the facts

to make split-second judgments—in and circumstances at the precise moment

circumstances that are often tense, that excessive force is applied, other

uncertain, and rapidly evolving—about courts, including this one, have

the amount of force that is necessary in a considered all of the relevant facts and

particular situation.” Graham, 490 U.S. circumstances leading up to the time that

at 396-97. The inquiry turns on the officers allegedly used excessive

“objective reasonableness,” meaning that force. See, e.g., Abraham, 183 F.3d at

the standard is whether the police 291.

officer’s “actions [were] ‘objectively

reasonable’ in light of the facts and 1. Officers Capuana, Callaghan, and

circumstances” facing the officer, Slater

regardless of the officer’s intent or

motivation. Id. at 397. The Rivas family emphasizes that

Mr. Rivas committed no crime and

Factors to consider in making a presented no threat to anyone when

determination of reasonableness include Officers Slater, Callaghan and Capuana

“the severity of the crime at issue, arrived at the Rivas household. The

whether the suspect poses an immediate family claims the police officers were

threat to the safety of the officers or informed of Mr. Rivas’s medical

others, and whether he actively is condition upon entering the apartment

resisting arrest or attempting to evade and should have allowed Mr. Rivas to

arrest by flight.” Graham, 490 U.S. at remain in the bathroom until the

396. Additional factors include “the paramedics, who were in transit, arrived.

possibility that the persons subject to the Instead, the officers ordered Mr. Rivas to

20

leave the bathroom. The family claims those facts alleged by [the plaintiff],

Mr. Rivas had a second seizure as he taken in the light most favorable to him.”

walked down the hallway and the police Curley, 298 F.3d at 280. As the District

officers responded by throwing him to Court pointed out, “Mrs. Rivas argues

the ground. Officer Capuana’s that her husband could not have reached

testimony could support the theory that for anything since he appeared to be in

Mr. Rivas had a second seizure as he the middle of another seizure and his

passed through the kitchen. face was pushed into the floor.” We

explained in Bennett v. Murphy, 274

The Rivas family emphasizes that F.3d 133, 137 (3d Cir. 2002), that a

the force escalated after Mr. Rivas was police officer who is accused of having

on the living room floor. Officer used excessive force is not “precluded

Callaghan allegedly sat on Mr. Rivas’s from arguing that he reasonably

back while the other two officers perceived the facts to be different from

restrained his legs and attempted to place those alleged by the plaintiff,” but that

handcuffs on Mr. Rivas. The family “contention . . . must be considered at

contends the officers repeatedly pushed trial.” Id. at 137 (emphasis added). As

Mr. Rivas’s face into the floor, which such, we must assume at the summary

made it difficult for him to breathe. judgment stage that Mr. Rivas, who was

According to testimony given by the laying face down on the floor, was

EMTs, Officer Callaghan jammed a simply flailing his arms due to his

flashlight into Mr. Rivas’s mouth at one seizure.

point during the struggle and later struck

him in the head with the same When viewed in the light most

flashlight. 11 favorable to the Rivas family, these facts

are sufficient to support the claim that

The police officers contend that Officers Callaghan, Slater and Capuana

the level of force they employed was may have used excessive force to quiet

necessary because Mr. Rivas bit them Mr. Rivas. See Curley, 298 F.3d at 280

and tried to grab Officer Callaghan’s (finding unreasonable seizure where

weapon. We must, however, at the police officer mistakenly shot port

summary judgment stage “consider only authority officer). Once the officers

ordered Mr. Rivas out of the bathroom,

they effected a legal seizure by

11

The medical examiner noted restraining his freedom of movement.

that two of Mr. Rivas’s front teeth were Assuming that Mr. Rivas began to have

partially dislodged, which may a medical seizure as he and the officers

corroborate the claim that Officer walked through the kitchen (although his

Callaghan forced a flashlight into Mr. condition may not have been recognized

Rivas’s mouth. by the officers), it was for the jury to

21

decide if the ensuing “takedown” and vomited, clear signs that he was not well.

force applied by the officers was There was also testimony that a pool of

objectively reasonable. blood had formed around Mr. Rivas’s

head on the porch.

2. Officers Farallo and O’Donnell

A reasonable jury could find from

The Rivas family alleges that these facts that Mr. Rivas did not present

Officers Farallo and O’Donnell used a threat to anyone’s safety as he lay in a

excessive force on Mr. Rivas after he fell prone position on the enclosed porch,

out of the stretcher on the way down the hands and ankles secured behind his

stairs. Specifically, the Rivas family back. Yet there is testimony in the

alleges that, “[w]hile Rivas was on the record that, in order to restrain Mr. Rivas

porch, face down, bound hand and foot, and subdue him, Officers Farallo and

having sustained a head injury, bleeding O’Donnell, along with Officer Longo,

from the nose and mouth, and having collectively pressed down on Mr.

been unconscious just minutes before his Rivas’s back with all of their weight

fall, Farallo and O’Donnell, along with until he became still and unconscious. It

Officer Longo, collectively pressed was immediately following these acts

down on his back with the weight of that the paramedics noticed Mr. Rivas

their bodies until he again lost was cyanotic and had stopped breathing.

consciousness, became cyanotic, and Assuming that Mr. Rivas was

died of asphyxiation.” handcuffed and had his ankles tied at

that time, a reasonable jury could find

O’Donnell testified that, that the continued use of force against

following Mr. Rivas’s fall from the Mr. Rivas was excessive. See, e.g.,

stretcher, he helped carry Mr. Rivas from Clash v. Beatty, 77 F.3d 1045 (7th Cir.

the stairs to the porch landing, where Mr. 1996).

Rivas was once again placed face down.

Mr. Rivas’s hands were handcuffed C. Qualified Immunity—EMTs

behind his back and there is evidence

suggesting that Mr. Rivas’s ankles were We turn now to the question of

still bound by cloth restraints, which had whether Garcia and Rodriguez are

been applied by Garcia before Mr. Rivas entitled to qualified immunity. An

was removed from the living room. appellate court reviewing the denial of a

defendant’s claim of qualified immunity

Officer O’Donnell, who helped must ask itself “whether the legal norms

carry Mr. Rivas down the stairs, must allegedly violated by the defendant were

have known that Mr. Rivas had just clearly established at the time of the

fallen out of the stretcher head first and challenged actions.” Mitchell, 472 U.S.

had lost control of his bowels and had at 528. Because the incidents in

22

question occurred more than two years left minor children alone in abandoned

after we issued our decision in Kneipp, car on the side of highway deprived

supra, it follows that the right to be free children of their due process rights).

from a state-created danger was clearly Both of those cases involved public

established by this Court by November officials abandoning citizens in

of 1998, when Garcia and Rodriguez dangerous situations.

responded to the Rivas family’s 911 call

for medical assistance. Our inquiry does We discern from these cases that,

not, however, end there. as of November 1998, our case law had

established the general proposition that

It is not enough that the state actors may not abandon a private

constitutional right was clearly citizen in a dangerous situation, provided

established in a general sense at the time that the state actors are aware of the risk

the incident occurred. Rather, “[t]he of serious harm and are partly

contours of the right must be sufficiently responsible for creating the opportunity

clear that a reasonable official would for that harm to happen. As the Supreme

understand that what he is doing violates Court explained in Hope v. Pelzer, 536

that right.” Anderson v. Creighton, 483 U.S. 730 (2002), in some cases “a

U.S. 635, 640 (1987). “The relevant, general constitutional rule already

dispositive inquiry in determining identified in the decisional law may

whether a right is clearly established is apply with obvious clarity to the specific

whether it would be clear to a reasonable conduct in question, even though ‘the

[official] that his conduct was unlawful very action in question has [not]

in the situation he confronted.” Saucier previously been held unlawful.’” Id. at

v. Katz, 533 U.S. 194, 202 (2001). 741 (quoting U.S. v. Lanier, 520 U.S.

259, 263 (1997) (citation omitted)).

In Kneipp, which we discussed

earlier, public officials abandoned a In sum, we find that the pre-

victim with whom they had direct existing law of “state-created danger”

contact. In reaching our decision in jurisprudence was clearly established.

Kneipp, we relied on, among others, the As such, it was sufficient to put Garcia

following cases: Reed v. Gardner, 986 and Rodriguez on notice that their

F.2d 1122, 1127 (7th Cir. 1993) (police conduct, if deemed unlawful, would not

officer who removed a sober driver and shield them with immunity.12

left behind a passenger whom he knew

to be drunk with the keys to the car was

subject to liability under 42 U.S.C. § 12

We note that Garcia and

1983) and White v. Rochford, 592 F.2d Rodriguez do not argue on appeal that

381, 385 (7th Cir. 1979) (police officers they are entitled to qualified immunity

who arrested uncle for drag racing and because the law was not clearly

23

D. Qualified Immunity—Police Officers apply here. In sum: under all the

circumstances relevant to the officers’

The Supreme Court held in restraint and handling of Mr. Rivas, did

Saucier v. Katz, 533 U.S. 194 (2001) their actions constitute excessive force

that qualified immunity also applies to and, if they did, was their violation of

Fourth Amendment excessive force Mr. Rivas’s constitutional right a clearly

claims. Id. at 206. Consequently, even established one? Mitchell, 472 U.S. at

if an officer uses force that was 528. Because the facts to be determined

objectively unreasonable, he may are disputed and as such are the function

nevertheless be protected from of the jury, the District Court did not err

individual monetary liability if he in denying summary judgment to the

reasonably believed, based on the facts officers.

and circumstances known to him, that

the force used was lawful. Stated V.

somewhat differently, an official who

violated an individual’s constitutional Because this interlocutory appeal

right, but not a clearly established decides only whether the District Court

constitutional right, may have acted in an properly held that the defendants were

objectively reasonable manner and not entitled to summary judgment on the

would thereby be protected from liability basis of a qualified immunity defense,

by qualified immunity. “The relevant, we do not consider nor do we address

dispositive inquiry in determining the evidentiary arguments raised in the

whether a right is clearly established is appellants’ briefs.13 Ziccardi, 288 F.3d

whether it would be clear to a reasonable at 61.

officer that his conduct was unlawful in

the situation he confronted.” Id. at 202. VI.

We have discussed this second We will affirm the District Court

prong of a qualified immunity defense Judge’s denial of the summary judgment

above when we addressed the Rivas’s motions filed by EMTs Garcia and

claims against the EMTs. The factors Rodriguez and by Police Officers Slater,

we noted there are the same factors that Callaghan, Capuana, Farallo, and

O’Donnell. The District Court Judge

established as of November 1998.

13

Instead, they argue that they are entitled We have earlier identified

to qualified immunity because they did some of the evidentiary arguments that

not deprive Mr. Rivas of a constitutional appear in the various appellants’ briefs

right. We have already addressed that (e.g., proximate cause, pendent state

argument in a prior section. claims, etc.).

24

properly denied their motions, which I. The Kneipp test

were based on qualified immunity,

because of the contested factual The District Court relied on the

circumstances leading to the harm Kneipp test in its analysis of state-created

suffered by Mr. Rivas. We will also danger. In so doing, it cited principles

dismiss the appeal of Police Officer that have since been refined, if not

Longo.14 superseded altogether. The four

elements we identified in Kneipp were:

AMBRO, Circuit Judge, concurring in “1) the harm ultimately caused was

part foreseeable and fairly direct; (2) the state

actor acted in willful disregard for the

I join wholeheartedly in Judge safety of the plaintiff; (3) there existed

Garth’s excellent analysis affirming the some relationship between the state and

District Court’s denial of summary the plaintiff; [and] (4) the state actors

judgment to the police officers. While I used their authority to create an

concur in the judgment as to the EMTs, I opportunity that otherwise would not

write separately to emphasize that, in have existed for the third party’s crime to

light of the high threshold for subjecting occur.” Id. at 1208 (citing Mark v.

EMTs to liability on a state action Borough of Hatboro, 51 F.3d 1137,

theory, the facts of this case would 1152 (3d Cir. 1995)).

support liability for the EMTs under a

very limited set of circumstances only. Judge Garth has noted the most

Before doing so, I consider the changes important of the recent modifications to

to the four-prong test applicable to state- the Kneipp test, which involved its

created dangers, set out in Kneipp v. second prong: in light of the Supreme

Tedder, 95 F.3d 1199 (3d Cir. 1996). Court’s decision in County of

Sacramento v. Lewis, 523 U.S. 833, 845-

47 (1998), a state actor will be liable

only for conduct that “shocks the

conscience”; it is no longer enough that

she or he has acted in “willful disregard”

of the plaintiff’s safety. Brown v. Pa.

14

The Rivas family has filed a Dep’t of Health Emergency Med.

motion to strike certain documents in the Training Inst., 318 F.3d 473, 480 (3d

appendix on the ground that those Cir. 2003).

documents allegedly were not before the

District Court when it issued its ruling. This modification, however, is not

Because we have not relied on any of the the only one. In Morse v. Lower Merion

disputed documents, we deny the School District, 132 F.3d 902 (3d Cir.

motion. 1997), we reconsidered the third prong

25

of the Kneipp test and suggested that tempts them to allege constitutional

there may be a “relationship” between violations where none exist.

the state and the plaintiff merely because

the plaintiff was a foreseeable victim, II. Does the conduct of the

either individually or as a member of a EMTs shock the conscience?

discrete class. Id. at 914. Moreover, we

have written “third party” out of the I am persuaded by Judge Garth’s

fourth prong of the test. We recently analysis that the plaintiffs have alleged

noted, “The fourth element’s reference to sufficient facts for a jury to find that

a ‘third party’s crime’ arises from the Garcia’s and Rodriguez’s conduct

doctrine’s origin as an exception to the shocks the conscience. I stress,

general rule that the state does not have a however, that only a very specific—and

general affirmative obligation to protect highly unlikely—factual resolution

its citizens from the violent acts of would warrant such a finding.

private individuals. The courts,

however, have not limited the doctrine to Whether defendants’ behavior is

cases where third parties caused the conscience-shocking depends on the

harm. . . .” Estate of Smith v. Marasco, particular circumstances of a case.

318 F.3d 497, 506 (3d Cir. 2003) Miller v. City of Philadelphia, 174 F.3d

(internal citation omitted). 368, 375 (3d Cir. 1999). The Supreme

Court has, however, provided guidance

In light of these substantial for application of the standard:

modifications to the Kneipp test, Kneipp

as shorthand is a misnomer. To be sure, We have . . . rejected the

Judge Garth has mentioned the relevant lowest common

refinements and considered this case by denominator of customary

reference to the adapted rubric. I tort liability as any mark of

nonetheless believe that continuing to sufficiently shocking

cite the Kneipp test as “good law,” as conduct, and have held that

Judge Garth does, minimizes the extent the Constitution does not

to which the law of state-created danger guarantee due care on the

in our Circuit has changed. And while part of state officials;

the changes to the third and fourth liability for negligently

prongs have expanded the state-created inflicted harm is

danger doctrine, the substitution of categorically beneath the

“shocks the conscience” for “willful threshold of constitutional

disregard” is a significant limitation. In due process. . . . It is, on

this context, our continued adherence to the contrary, behavior at

Kneipp, if only in name, colors the other end of the

plaintiffs’ perception of their burden and culpability spectrum that

26

would most probably services if it chooses to provide them.”

support a substantive due Brown, 318 F.3d at 478.

process claim; conduct

Thus, in order to “shock the

intended to injure in some

conscience,” rescue services must be

way unjustifiable by any

more than incompetent. In fact, in light

government interest is the

of our decision in Ziccardi v. City of

sort of official action most

Philadelphia, 288 F.3d 57 (3d Cir.

likely to rise to the

2002), shocking the conscience entails

conscience-shocking level.

more even “than subjective deliberate

Lewis, 523 U.S. at 848-49. From Lewis indifference,” id. at 65, the standard

we have gleaned several lessons. “The applied by the District Court in this case.

first . . . is that negligence is not enough Rather, plaintiffs must provide “proof of

to shock the conscience under any something less than knowledge that the

circumstances. The second is that more harm was practically certain but more

culpability is required to shock the than knowledge that there was a

conscience to the extent that state actors substantial risk that the harm would

are required to act promptly and under occur.” Id. at 66. In other words, the

pressure.” Schieber v. City of plaintiffs here must demonstrate that the

Philadelphia, 320 F.3d 409, 419 (3d Cir. EMTs “consciously disregarded, not just

2003). Moreover, when state actors a substantial risk, but a great risk that

must balance competing, legitimate serious harm would result” from their

interests, the threshold of culpability is conduct. Id. (emphasis added).

higher. Id.

On the facts of this case, I doubt

We have invoked these principles very much that the plaintiffs will be able

in setting the standard of culpability to demonstrate this added element of

applicable to EMTs. In Brown, we culpability. While the EMTs may have

considered a § 1983 claim against EMTs failed properly to assist Rivas, they

and the City of Philadelphia alleging certainly could not have expected, when

violation of the due process rights of a they called for assistance in subduing a

child who died of choking following a patient, that the police would subject the

botched rescue attempt. We emphasized patient to physical abuse. Perhaps upon

that “there is no federal constitutional witnessing the subsequent mistreatment

right to rescue services, competent or of their patient they should have

otherwise. Moreover, because the Due intervened. Almost certainly they should

Process Clause does not require the State have offered medical advice (e.g., a

to provide rescue services, it follows that patient experiencing a seizure should not

we cannot interpret that clause so as to be touched). But it would be a harsh

place an affirmative obligation on the burden to require an EMT to insert

State to provide competent rescue herself into a struggle between a seizing

27

patient and a violent police officer. It is potentially could support such an

after all a police officer, not an EMT, interpretation. I agree that such conduct,

who is expected to carry out and enforce however unlikely, would satisfy the high

the law; an EMT will rarely feel standard of culpability laid out in Lewis

qualified to second guess an officer’s and Brown. I therefore leave for the jury

authority. the question whether Garcia and

Rodriguez consciously disregarded a

I nonetheless concur because it is

great risk of serious harm to Rivas in a

not now our role to interpret the facts.

manner that “shocks the conscience.”

We will reverse the District Court’s

denial of summary judgment only if

there is no genuine issue as to any

material fact. Fed. R. Civ. P. 56(c). In

assessing whether judgment as a matter

of law is appropriate, we construe the

facts in the light most favorable to the

plaintiffs. We thus assume that the

EMTs did not merely call the police

unnecessarily because they

misinterpreted Rivas’s symptoms as

potentially aggressive or because they

were needlessly afraid. Rather, we

assume that they actually and actively

misrepresented to the police that Rivas

had attacked them. Though the chances

are remote, a jury theoretically could

find that the EMTs, unwilling to dirty

their hands to assist their patient, called

the police in order purposefully to shirk

their responsibility. Alternatively, it is

conceivable that Garcia and Rodriguez

needlessly phoned for backup in a

moment of fear and became embarrassed

when they arrived; perhaps they chose to

justify their call with false allegations of

violence rather than admit their

hastiness.

I am skeptical that the EMTs

acted in this manner, but the conflicting

testimony identified by Judge Garth

28