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Rivas v. Passaic Precedential or Non-Precedential: Precedential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

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. 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