2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-17-2015

Lizette Vargas v. City of Philadelphia

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-4590

_____________

LIZETTE VARGAS, 

Individually & In Her Capacity as Administratrix of 

Estate of Tabitha Elaine Gonzalez Deceased,

 Appellant

v.

CITY OF PHILADELPHIA; 

POLICE OFFICER MATTHEW BLASZCZYK;

POLICE OFFICER KEITH WHITE;

JOHN DOES 1-10 

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-11-cv-2639)

District Judge: Hon. Thomas N. O’Neill, Jr.

_______________

Argued

January 21, 2015

Before: FISHER, JORDAN, and GREENAWAY, JR., 

Circuit Judges.
2

(Filed: April 17, 2015)

_______________

James E. Hockenberry, Esq. [ARGUED]

Law Office of Leon Aussprung

2005 Market Street – Ste. 2300

Philadelphia, PA 19103

 Counsel for Appellant

Jane L. Istvan, Esq. [ARGUED]

Mark Maguire, Esq.

Amanda C. Shoffel, Esq.

City of Philadelphia

Law Department

1515 Arch Street – 17th Fl.

Philadelphia, PA 19102

 Counsel for Appellees

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Appellant Lizette Vargas challenges an order from the 

United States District Court for the Eastern District of 

Pennsylvania granting summary judgment against her on her 

constitutional and state-law claims against the City of 

Philadelphia (“the City”) and two Philadelphia police officers

(collectively, with the City, the “City Defendants”). She

brought those claims on her own behalf and on behalf of the 

estate of her daughter, Tabitha Gonzalez, based on events 
3

associated with Tabitha’s death from asthma. Although the 

underlying circumstances of the case are tragic, the District 

Court’s legal conclusion was correct, and we will affirm. 

I. BACKGROUND

A. Factual Background1

On the night of August 19, 2009, shortly before 

midnight, 15-year old Tabitha began suffering from an 

asthma attack while at her home in North Philadelphia. Her 

mother, Ms. Vargas, who was also at home, suggested that 

she use her inhaler and nebulizer. While Tabitha was using 

the nebulizer, the severity of the asthma attack prompted 

Vargas to call 911 for emergency assistance. 

As she waited for the paramedics to arrive, Vargas 

went outside and found Tabitha lying on the sidewalk in front 

of the house. At first, Tabitha was conscious and gasping for 

air, but she quickly lapsed into unconsciousness. Tabitha’s 

cousin Maritza Rojas performed CPR on her, but it was

unsuccessful. Erik Franklin – Maritza’s boyfriend –and two 

neighbors lifted Tabitha into the backseat of a car belonging 

 

1 We note the conflicting stories emerging from the 

interaction Vargas had with the police, but we construe the 

facts in the light most favorable to her, the party opposing 

summary judgment. Gonzalez v. Sec’y of Dep’t of Homeland 

Sec., 678 F.3d 254, 257 (3d Cir. 2012) (“When reviewing a 

grant of summary judgment the court must view the facts in 

the light most favorable to the nonmoving party and draw all 

inferences in that party’s favor.” (internal quotation marks 

omitted)).
4

to Julia Diaz, another of Tabitha’s cousins, so that Diaz could 

take her to the hospital. During this time, Vargas and Diaz 

both dialed 911, placing five separate and understandably 

frantic calls between 12:08 a.m. and 12:14 a.m. In response 

to a report of “a person screaming” made at 12:10 a.m. and 40 

seconds, the Police Communications Center dispatched police 

officers Keith White and Matthew Blaszczyk at 12:11 a.m. 

and 16 seconds.

2

 (App. at 152-54, 157.) Neither officer was 

made aware that the call was regarding a medical 

 

2 A “computer-aided dispatch” (or “CAD”) report is 

generated by the police communications center when a 

dispatcher receives a 911 call. The computer system records 

information related to the call, including police response and 

activity. For example, it notes when officers input 

information in the computer terminal located in their patrol 

vehicle, called a mobile data transmitter (“MDT”). The 

officers push a button on the MDT to report when they are en 

route to a location and when they have arrived. 
5

emergency.3 The police dispatch report notes that the officers

arrived at Vargas’s home at 12:13 a.m. and 56 seconds.4 

The events immediately following the arrival of 

Officers White and Blaszczyk are in dispute. Vargas testified 

that Franklin and Tabitha were in the backseat of Diaz’s car 

while Vargas was in the front passenger seat and Diaz, as the 

driver, had pulled the car partly out of its parking spot at the 

curb when the police officers stopped their car so that it 

blocked Diaz’s. According to Vargas, the officers’ vehicle 

was positioned so that its back door prevented her from 

opening her passenger-side door. She claims that, as an 

officer approached, she banged on her door to “let [the 

 

3 Calls are coded as “a person screaming” when the 

dispatcher is unable to communicate with the person on the 

line and the operator can only hear screaming. Other 911 

calls made by Ms. Vargas that night were coded for “hospital 

cases,” i.e., medical emergencies, and referred to the Fire 

Department for a response. (App. at 151, 153.) There was 

evidence that the 911 computer system cross referenced the 

medical emergency calls with the report of the woman 

screaming, but that information was not communicated to the 

officers who responded to the call. 

4 According to the CAD report, the “on scene” button 

on the MDT registered to Officers Blaszczyk’s and White’s 

patrol vehicle was pushed at 12:13 and 56 seconds. See supra

note 2. Vargas notes, however, that police records show the 

officers ran a vehicle tag at 12:13 and 42 seconds, suggesting 

that they arrived slightly before the time at which they pushed 

the “on scene” button. 
6

officer] know that [she could not] open up the door,” while

Diaz rolled down her window and told the officer that they 

had Tabitha in the car and had to leave immediately. (App. at 

85.) Vargas testified that, as Diaz was trying to explain their 

medical emergency, the officer walked in front of Diaz’s car 

to the driver’s side and said, “get the f*** out of the car, turn 

off the engine now.” (App. at 86.) Diaz then turned off the 

engine and got out of the car. Because Vargas could not open 

her passenger-side door, she climbed over the center console 

and got out of the car through the driver-side door that Diaz 

had left open. At that point, Vargas said, the police officer 

pulled open one of the back doors, causing Tabitha to tumble 

partway out of the car and onto the ground. Vargas 

immediately attempted to move towards her daughter but was 

prevented from doing so by one of the officers, who, she said,

“blocked” her. (App. at 87.)

Officers White and Blaszczyk testified that they did

not impede the movement of any car when they pulled to a 

stop in front of the Vargas residence. They also claim that 

Tabitha was already on the sidewalk upon their arrival. 

Officer Blaszczyk testified that he saw “a female laying on 

the sidewalk” (App. at 296-97) as he got out of the patrol car,

and Officer White similarly said he observed “two Hispanic 

males that were over top of a[] Hispanic female who was on 

the ground” (App. at 168). The officers assert that, along 

with the two Hispanic males, they attempted to move Tabitha

into the car and “got her halfway into the car and she just 

didn’t fit into the back door.” (App. at 168.) Officer White 

testified that, as they were attempting to move Tabitha into 

the car, he heard the siren of an ambulance coming and “it 

was very clear [to him] that [they] were not going to get

[Tabitha] into the back of the car and [so he] recommended 
7

that [they] wait for the ambulance to arrive” because he could 

see it coming down Fifth Street. (App. at 168-69.) Officer 

White further explained that, “[a]s the ambulance was pulling 

up, the two females were screaming at [him and Officer 

Blaszczyk] that [if they did not] want to f***ing help, to get 

the f*** away from [Tabitha].” (App. at 169.) Officer White 

claims he stepped away from them and approached the 

ambulance as it arrived. Both officers assert that they did not 

prevent anyone from taking Tabitha to the hospital. 

Acknowledging that she could not “be precise on the 

minutes,” Vargas estimated that the police officers were on 

the scene for approximately 6 to 8 minutes before the 

ambulance arrived. (App. at 89.) Franklin – one of Vargas’s 

witnesses – testified, however, that the officers were on the 

scene for “[m]aybe a minute, two minutes” before the 

ambulance arrived. (App. at 132.) Further, the

contemporaneous police dispatch records indicate that, from 

the time the officers noted their arrival at the scene, see supra 

note 4, to the time the ambulance arrived, was just over one 

minute.

5

 (Compare App. at 158 (officers arrived at 

 

5 As described by Vargas’s witnesses, the ambulance 

arrived “almost simultaneously” with Emergency Medical 

Technicians (“EMTs”) who came in a fire truck. The EMTs

later recalled that they saw a large crowd of people at the 

scene who were “[s]creaming, hollering, fighting ... amongst 

each other” and also that Tabitha was “half-in” the car and 

was unresponsive with no vital signs. (App. at 203-04.) 

They pulled Tabitha out of the car and onto the sidewalk and 

provided basic life support and CPR to her until the 

paramedics arrived. The EMTs do not figure further in the 

unfolding of events nor in the legal controversies at issue.
8

12:13:56), with App. at 277 (ambulance arrived at 12:15).) 

After their arrival, paramedics assisted Tabitha onto a 

stretcher, loaded her into the ambulance and provided CPR to 

her on the way to Temple University Hospital.6 She arrived 

at the hospital at 12:28 a.m. and 31 seconds, approximately 

twenty minutes after Vargas’s first call to 911. She had 

suffered a severe anoxic brain injury by the time of her 

arrival, was pronounced brain dead, taken off of life support,

and died two weeks later on August 26, 2009. 

B. Procedural History

Vargas initially filed a complaint on April 1, 2011, in 

the Philadelphia Court of Common Pleas, asserting claims 

against the City and officers of the Philadelphia Police 

Department listed as John Does 1-10. The City timely 

 

6 There are two different types of ambulances that 

respond to 911 calls: those with Advanced Life Saving 

Service (“ALS”) crews and those with Basic Life Saving 

Service (“BLS”) crews. ALS crews include paramedics who 

can intubate patients and perform other advanced medical 

treatments, while BLS crews can only provide basic life 

support. Vargas’s 911 call was initially coded for the 

dispatch of an ALS crew but, at the time she called, all ALS 

crews were responding to other calls and a BLS crew was 

dispatched instead. The paramedics that arrived were thus 

only able to connect Tabitha to an automated external 

defibrillator and keep her airway open with a small piece of 

plastic. Vargas does not contend that the unavailability of an 

ALS crew gives rise to any cause of action against the City 

Defendants. 
9

removed the case to federal court. Vargas then filed an 

amended complaint on August 18, 2011, naming Officers 

Blaszczyk and White as additional defendants and asserting 

in Count I that the officers violated her Fourteenth 

Amendment rights to be free from unlawful seizure and 

physical restraint and her right to seek medical care on 

Tabitha’s behalf, in violation of 42 U.S.C. § 1983. She also 

claims, in Count II, that the officers violated Tabitha’s right 

to be free from unlawful seizure, physical restraint, and cruel 

and unusual punishment and that they interfered with her 

“well-being, life and personal security” and substantive due 

process rights, in violation of 42 U.S.C. § 1983. The 

amended complaint also contains, in Count III, a claim 

against the City alleging a failure to properly train the police, 

and, in Count IV, state-law false imprisonment claims on her 

own behalf and for Tabitha. 

After the close of discovery, the City moved for 

summary judgment, arguing that Vargas could not 

demonstrate a constitutional violation and, in the alternative, 

that the officers’ conduct was shielded by qualified immunity. 

Vargas responded by pointing to the report submitted by her 

expert witness, Dr. Christopher Moen, an emergency room 

physician, who said that, had Vargas been able to take 

Tabitha to the hospital in Diaz’s car without interruption from 

the police, Tabitha would have arrived at the hospital 6 to 8 

minutes earlier than she did in the ambulance.7 According to 

 

7 The 6 to 8 minute delay that Dr. Moen identified was 

based on police dispatch and hospital records, not on 

Vargas’s recollection of the timing of events. Dr. Moen 

determined that Tabitha was placed in Diaz’s car at 12:13 

a.m. and that the time required to drive to the hospital from 
10

Dr. Moen, that 6 to 8 minute delay “prevented [Tabitha] from 

receiving life-saving medical care” and “caused her to suffer 

a significant anoxic brain injury which led to designation of 

brain death.” (App. at 377-79.) The District Court granted 

summary judgment against Vargas on all of her claims, 

including granting judgment sua sponte on the false 

imprisonment claims. Vargas then timely filed this appeal.

 

Vargas’s home was 3 minutes and 42 seconds. Thus, Dr. 

Moen concluded that, had Vargas been able to transport 

Tabitha to the hospital as intended, Tabitha would have 

arrived no later than 12:17 a.m. Dr. Moen noted that the

Emergency Medical Services report indicates that the 

ambulance arrived at the hospital at 12:23 a.m., while the 

hospital records indicate that that ambulance arrived at 12:25 

a.m. Thus, Dr. Moen concluded that the delay in Tabitha’s 

treatment was approximately 6 to 8 minutes. 
11

II. DISCUSSION8

A. Unreasonable Seizure 

1. Seizure of Vargas and Tabitha

Vargas argues that the District Court erred in finding 

that neither she nor her daughter was seized within the 

meaning of the Fourth Amendment. A Fourth Amendment 

seizure occurs when the government terminates the freedom 

of an individual through means intentionally applied. Brower 

v. Cnty. of lnyo, 489 U.S. 593, 596-97 (1989). In other 

words, “a person is ‘seized’ only when, by means of physical 

force or a show of authority, his freedom of movement is 

restrained.” United States v. Mendenhall, 446 U.S. 544, 553 

(1980). The test for the existence of a “show of authority” is 

an objective one and, as the Supreme Court stated in 

California v. Hodari, considers “not whether the citizen 

perceived that he was being ordered to restrict his movement, 

but whether the officer’s words and actions would have 

conveyed that to a reasonable person.” 499 U.S. 621, 628 

(1991). A seizure does not occur, however, when the 

individual does not yield or submit to the officer’s show of 

 

8 The District Court had jurisdiction under 28 U.S.C. 

§§ 1331, 1367, and 1441. We have jurisdiction pursuant to 

28 U.S.C. § 1291. We exercise plenary review over the 

District Court’s summary judgment rulings. Lupyan v. 

Corinthian Colls. Inc., 761 F.3d 314, 317 (3d Cir. 2014). A 

party is entitled to summary judgment when “there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a).
12

authority. Id. at 626; see also United States v. Smith, 575 

F.3d 308, 313 (3d Cir. 2009). The kinds of demonstration of 

authority that may constitute a seizure include “the 

threatening presence of several officers, the display of a 

weapon by an officer, some physical touching of the person 

of the citizen, or the use of language or tone of voice 

indicating that compliance with the officer’s request might be 

compelled.” United States v. Crandell, 554 F.3d 79, 85 (3d 

Cir. 2009) (internal quotation marks omitted) (quoting 

Mendenhall, 446 U.S. at 554).

Vargas argues that both she and Tabitha were seized 

when the officers used their police cruiser to block Diaz’s car

from leaving for the hospital, when the officers told Diaz to 

turn off the engine and instructed the occupants to get out of 

the car, and then when the officers prevented them from 

getting back in the car and leaving for the hospital after it was 

clear that a medical emergency was taking place.9 Vargas 

 

9 As to seizure by physical force, Vargas did not argue 

below that she was seized when the police officers used their 

patrol car to block Diaz’s vehicle from leaving for the 

hospital. Instead, she argued that she was seized when the 

officers refused to allow her to approach her daughter. She 

makes passing references to that argument here, but, as the 

District Court concluded, it fails because the officers did not 

employ any physical force: they did not physically touch or 

restrain her and instead simply told her to “move back” away 

from her daughter and to “calm down.” (App. at 87.) See 

Hodari, 499 U.S. at 625 (“[The alleged seizure] does not 

involve the application of any physical force; Hodari was 

untouched by Officer Pertoso at the time he discarded the 

cocaine.”). Although the officers’ conduct could have been 
13

contends that the officers’ conduct constituted a show of 

authority to which she submitted, and she contrasts her and 

Tabitha’s behavior with that of the defendant in Hodari, who 

fled from police and was thus not seized because of his lack 

of submission to the officers’ authority. Hodari, 499 U.S. at 

626. Vargas emphasizes that she and Tabitha did not flee. 

Indeed, she says, despite desperately pleading with the 

officers to allow her to take her daughter to the hospital, she 

obeyed when they told her to get out of the vehicle and move 

away from Tabitha.

Although the parties devote significant effort to 

addressing the difficult question of whether a seizure 

occurred in this case, we need not resolve that issue because, 

as explained below, even if there were a seizure, the 

undisputed facts show that any such seizure was reasonable 

and therefore not a constitutional violation.

2. Reasonableness of seizures

The Fourth Amendment does not protect against all 

seizures; it only protects against those that are unreasonable. 

 

sufficient under the “show of authority” prong to constitute a 

seizure, as discussed below, see infra pp. 11-17, any such 

seizure was reasonable. 

Vargas also contends that the District Court erred in 

concluding that Tabitha was not seized because, in her 

unconscious state, she could not submit to the officers’ show 

of authority. Again, because any seizure that may have 

occurred was reasonable, we do not need to resolve whether 

there was a seizure. 
14

United States v. Sharpe, 470 U.S. 675, 682 (1985). 

Reasonableness is determined by balancing “the need of law 

enforcement officials against the burden on the affected 

citizens and considering the relation of the policeman’s 

actions to his reason for stopping the [individual].” Baker v. 

Monroe Twp., 50 F.3d 1186, 1192 (3d Cir. 1995). While 

declining to concede that any seizure occurred, the City 

Defendants argue that, to the extent there was a seizure, it was 

reasonable under the community caretaking exception to the 

Fourth Amendment. 

In Cady v. Dombrowski, the Supreme Court introduced 

the “community caretaking doctrine” when it held that a 

police search of a particular police officer’s private vehicle 

for the officer’s missing service revolver was not a Fourth 

Amendment violation because the search was undertaken not 

for a law enforcement purpose but out of “concern for the 

safety of the general public who might be endangered if an 

intruder removed a revolver” from the vehicle.

10

 413 U.S. 

 

10

 We have previously given a synopsis of the relevant 

facts in Cady, as follows:

In Cady, a Chicago police officer named 

Dombrowski was visiting in Wisconsin and 

reported to the local police that he had been in 

an automobile accident. The police picked him 

up and returned to the scene of the accident. 

Dombrowski had been drinking, appeared 

intoxicated to the officers, and offered 

conflicting versions of the accident. He 

informed the local officers that he was a 

Chicago policeman. The local officers believed 

that members of the Chicago police force were 
15

433, 447 (1973). The Court noted that law enforcement

officers often exercise “community caretaking functions, 

totally divorced from the detection, investigation, or 

acquisition of evidence relating to the violation of a criminal 

statute.” Id. at 441. That community caretaking doctrine, as 

described in Cady, is an exception to the warrant requirement 

of the Fourth Amendment and allows police with a non-law 

enforcement purpose to seize or search a person or property 

 

required to carry a service revolver at all times, 

so, when no gun was found on Dombrowski’s 

person, an officer checked the front seat and the 

glove compartment of the wrecked car, but to 

no avail. The effort to find the weapon was 

motivated by the obligation of the police “to 

protect the public from the possibility that a 

revolver would fall into untrained or perhaps 

malicious hands.” The police had the vehicle 

towed to a privately owned garage, where it was 

left parked outside. After taking Dombrowski 

to a local hospital for treatment of injuries he 

sustained in the accident, one of the Wisconsin 

officers returned to Dombrowski’s car to again 

try to recover the service revolver ... pursuant 

to standard departmental procedure “to protect 

the public from a weapon’s possibly falling into 

improper hands.” Upon opening the trunk, the 

officer discovered various items that linked 

Dombrowski to a murder.

Ray v. Twp. of Warren, 626 F.3d 170, 174-75 (3d Cir. 2010)

(citations omitted).
16

“in order to ensure the safety of the public and/or the 

individual, regardless of any suspected criminal activity.” 

United States v. King, 990 F.2d 1552, 1560 (10th Cir. 1993). 

Many courts, including our own, have considered the 

limits of the community caretaking doctrine. In Ray v. 

Township of Warren, Ray’s estranged wife had gone to Ray’s

house to pick up their daughter for court-ordered visitation. 

626 F.3d 170, 171-72 (3d Cir. 2010). Upon seeing someone 

moving inside the home, but receiving no response to her 

ringing of the doorbell or knocking on the door, the wife

called the police. Id. Once the police arrived, she described 

the situation to them and expressed concern for her daughter’s 

well-being. Id. The officers, some of whom were aware of 

the acrimonious divorce proceedings and child-custody 

dispute between the couple, also knocked on the door and 

called the telephone number for the residence, but received no 

response. Id. Thereafter, and without a valid warrant,

11 the 

officers entered the house to check on the child’s well-being.

Id. To justify their actions, the officers asserted the 

 

11 Prior to entering, the responding officers contacted a 

municipal court judge for guidance as to whether the officers 

could enter the home and look for the child without a warrant, 

and they received approval. Although the specifics of that 

conversation were unclear, the officers testified that they only 

sought advice regarding entering the home out of concern for 

the daughter’s well-being; they did not regard the call as a 

request for a warrant. The magistrate judge however, 

understood the officers to be asking for an arrest warrant and 

issued such a warrant, though it was later voided. Ray, 626 

F.3d at 172.
17

community caretaking exception to the Fourth Amendment’s 

warrant requirement. 

We ultimately held that the officers’ actions were 

protected by qualified immunity, id. at 179, but we declined 

to extend the community caretaking exception to cover the 

officers’ conduct. Instead, we indicated that Cady’s outcome

depended on the distinction in Fourth Amendment 

jurisprudence between automobiles and homes, and we 

concluded that the community caretaking doctrine “cannot be 

used to justify warrantless searches of a home.” Id. at 177. 

We expressly noted in that case, however, that we were not 

deciding “[w]hether that [doctrine] can ever apply outside the 

context of an automobile search.” Id. 

Some of our sister courts of appeals have, by contrast, 

decided that question and have upheld under the community 

caretaking doctrine not only evidentiary searches and seizures

outside the home, but also the effective seizure of persons. 

See, e.g., Lockhard-Bembery v. Sauro, 498 F.3d 69, 75-76 

(1st Cir. 2007) (applying community caretaking exception 

when officer ordered motorist to push her disabled car out of 

the roadway for the safety of the general public); Samuelson 

v. City of New Ulm, 455 F.3d 871, 877 (8th Cir. 2006) 

(applying community caretaking exception when officers 

transported to a psychiatric hospital an unwilling individual 

who appeared to be hallucinating); United States v. Rideau,

949 F.2d 718, 720 (5th Cir. 1991) (applying community 

caretaking exception when officers stopped defendant for his 

own safety and the safety of others after observing him 

standing in the middle of the road at night, dressed in dark 

clothes, and apparently intoxicated), vacated on other 

grounds, 969 F.2d 1572 (5th Cir. 1992) (en banc). 
18

We agree that the community caretaking doctrine can 

apply in situations when, as is arguably the case here, a 

person outside of a home has been seized for a noninvestigatory purpose and to protect that individual or the 

community at large.12 The undisputed facts show that the 

actions of Officers Blaszczyk and White were reasonable. 

They were responding to a volatile situation which they did 

not initially know involved a medical emergency, and any 

brief seizure that may have occurred was a result of the 

officers’ concern for the safety of everyone involved. The 

officers were sent because of a dispatcher’s report of a 911 

call from a “person screaming” (App. at 152-54), which was 

an apt description. According to Vargas, when the officers 

pulled up next to Diaz’s car, the occupants of the car began 

“screaming” at them (App. at 85), but the screaming did not 

immediately reveal the nature of the emergency. Once the 

officers realized that Tabitha needed medical attention, it was 

reasonable for them to direct Vargas to wait because an 

ambulance was within earshot and its arrival was apparently 

imminent. 

 

12 The City Defendants have not invoked the 

“emergency aid doctrine,” which the Supreme Court

describes as a subset of the exigent circumstances exception 

to the warrant requirement. Brigham City, Utah v. Stuart, 

547 U.S. 398, 403 (2006) (“One exigency obviating the 

requirement of a warrant is the need to assist persons who are 

seriously injured or threatened with such injury.”). We thus 

do not have occasion to evaluate that doctrine’s applicability 

here. 
19

Officer White testified that they intended to take 

Tabitha to the hospital, but then heard and saw an ambulance 

approaching “within a minute or two minutes.” (App. at 

175.) He further testified that he waited for the ambulance 

because paramedics are “better trained” for the type of 

situation the officers faced. (App. at 175.) Sergeant Starrs of 

the Philadelphia Police Department, who works for the 

Department’s Research and Planning Unit and is responsible 

for writing policies and procedures used in the training of

police officers, explained that officers are trained to wait for 

paramedics in certain situations because “medics ... have the 

equipment and they have the personnel to ride in the back” 

with the patient, whereas when officers transport a patient, 

they “are in the front of the car driving” and “there is no 

nobody to attend to the patient in the back.” (App. at 186.) It 

is undisputed that Tabitha did in fact receive medical care on 

the scene and on board the ambulance on the way to the 

hospital.

Finally, it is important to note that the encounter 

outside the Vargas home transpired within a few minutes. 

Although Vargas estimated that the police officers were on 

the scene for 6 to 8 minutes before the ambulance, Franklin –

one of her witnesses – testified that the time between the 

officers’ and the ambulance’s arrival was “maybe a minute, 

two minutes.” (App. at 132-33.) And the police dispatch 

records tend to confirm Franklin’s testimony, showing that 

the officers were on the scene just over a minute before the 

ambulance arrived. (Compare App. at 158 (officers arrived at 

12:13:56), with App. at 277 (ambulance arrived at 12:15).) 

Even accepting the longer time-span as the historical fact, 

though, the entire episode happened quickly. In such
20

circumstances, even if Vargas and Tabitha could be 

considered seized, the seizures were reasonable.13

B. Due Process Claim

Vargas also raises a Fourteenth Amendment 

substantive due process claim on her own behalf and on 

behalf of Tabitha. For herself, Vargas argues that the officers 

violated her Fourteenth Amendment right to “make decisions 

concerning the care, custody, and control” of her daughter. 

C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 182 (3d Cir. 

2005) (internal quotation marks omitted). Her claim on 

behalf of Tabitha has three components: a “straight” 

Fourteenth Amendment claim based upon the officers’ failure 

to allow Vargas to transport her to the hospital in violation of 

Tabitha’s right to life; a special relationship claim that the 

 

13 The officers’ conduct here would also be shielded by 

qualified immunity. “Qualified immunity shields government 

officials from civil damages liability unless the official 

violated a statutory or constitutional right that was clearly 

established at the time of the challenged conduct.” Reichle v. 

Howards, 132 S. Ct. 2088, 2093 (2012). The case law does 

not indicate any analogous factual circumstances that would 

have put the officers on notice that they cannot briefly detain 

individuals in response to an emergency call and to await 

trained medical transport without violating the Fourth 

Amendment. We had not, before today, expressly held that 

the community caretaking doctrine could justify the seizure of 

a person outside of a home, which suggests that, to the extent 

there was doubt, the law in this area was not “clearly 

established.”
21

officers had a duty to render affirmative aid; and a statecreated danger claim. 

To sustain a substantive due process claim, a plaintiff 

must show that the particular interest in question is protected 

by the Fourteenth Amendment and that the government’s 

deprivation of that interest “shocks the conscience.” Gottlieb 

ex rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 

172 (3d Cir. 2001). The shocks-the-conscience test applies 

regardless of the theory upon which the substantive due 

process claim is premised. See Estate of Lagano v. Bergen 

Cnty. Prosecutor’s Office, 769 F.3d 850, 858 (3d Cir. 2014) 

(noting that, to establish a claim under the state-created 

danger theory, a plaintiff must prove that “a state actor acted 

with a degree of culpability that shocks the conscience”); 

Nicini v. Morra, 212 F.3d 798, 809-12 (3d Cir. 2000)

(applying the shocks-the-conscience test in a “special 

relationship” case); J.R. v. Gloria, 593 F.3d 73, 80 (1st Cir. 

2010) (stating that, even assuming a “special relationship” 

existed, the plaintiffs “did not make out a substantive due 

process claim” because they did not “allege any behavior by 

defendants that would meet the legal definition of conscienceshocking conduct”); Johnson ex rel. Estate of Cano v. 

Holmes, 455 F.3d 1133, 1141-42 (10th Cir. 2006) (stating that 

the shocks-the-conscience standard applies to both “special 

relationship” cases and “state created danger cases” (citations 

omitted)).

“The exact degree of wrongfulness necessary to reach 

the ‘conscience-shocking’ level depends upon the 

circumstances of a particular case.” Miller v. City of Phila., 

174 F.3d 368, 375 (3d Cir. 1999). A plaintiff faces the 

highest bar when the state actor accused of wrong-doing was 
22

faced with a “‘hyperpressurized environment’” requiring a 

snap judgment. Sanford v. Stiles, 456 F.3d 298, 308-09 (3d 

Cir. 2006) (quoting Estate of Smith v. Marasco, 318 F.3d 497, 

508 (3d Cir. 2003)). In such cases, we permit recovery only 

if the state actor had an actual intent to cause harm. Id. By 

contrast, “where deliberation is possible and officials have the 

time to make ‘unhurried judgments,’ deliberate indifference is 

sufficient.” Id. at 309 (quoting Cnty. of Sacramento v. Lewis, 

523 U.S. 833, 853 (1998)). Importing aspects of Eighth 

Amendment jurisprudence, we have defined “deliberate 

indifference” as requiring “conscious[ ] disregard [of] ‘a 

substantial risk of serious harm.’” Ziccardi v. City of Phila., 

288 F.3d 57, 66 (3d Cir. 2002) (quoting Farmer v. Brennan, 

511 U.S. 825, 836 (1994)). In any event, “[m]ere negligence 

is not enough to shock the conscience.” Sanford, 456 F.3d at 

311.

Here, the officers certainly did face a hyperpressurized 

environment. They came in response to a 911 call noted 

simply as “person screaming” and they in fact encountered a 

group of screaming, frantic adults and an unconscious child. 

No one disputes that the police arrived at a tense and chaotic 

scene, that they endeavored to determine what was 

happening, and that, when it was plain that there was a 

medical emergency and an ambulance was about to arrive, 

they had everyone wait for the paramedics. It is a stretch to 

say that these facts rise even to the level of negligence, let 

alone to deliberate indifference or an intent to harm. While 

the officers’ behavior and language, as described by Vargas,

may have been less than polite or compassionate, it was not 

actionable.
23

The cases Vargas relies upon are inapposite. In Rivas 

v. City of Passaic, paramedics misrepresented to the police 

that a patient had assaulted one of them, leading the police to

restrain the patient and causing the patient to asphyxiate. 365 

F.3d 181, 185-86, 189 (3d Cir. 2004). In Kneipp v. Tedder, 

police officers abandoned an intoxicated woman in freezing 

weather after separating her from her sober husband – her 

“private source of protection.” 95 F.3d 1199, 1210 (3d Cir. 

1996). Here, by contrast, the officers simply and sensibly 

decided to wait for the incoming ambulance that was seconds 

away. Unlike the government actors in the cases that Vargas 

cites, the police here assisted in a form of rescue – facilitating 

an ambulance pick-up – rather than arresting or abandoning 

the person in need of aid. Thus, the District Court did not err 

in granting summary judgment against Vargas on all of her 

substantive due process claims.

C. “Failure to Train” Claim

Relying on Monell v. New York City Department of 

Social Services, 436 U.S. 658 (1978), Vargas next contends 

that the City of Philadelphia is liable for failing to preserve 

her constitutional rights, and that the District Court erred in 

granting summary judgment against her on that claim. 

Specifically, she argues that the City’s police department 

failed to adequately train its police officers and failed to adopt 

appropriate policies to prevent Fourth and Fourteenth 

Amendment violations. 

In Monell, the Supreme Court held that a municipality 

can be found liable under § 1983 only when the municipality 

itself causes the constitutional violation at issue. City of 

Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). In order 
24

to impose liability on a local governmental entity for failing 

to preserve constitutional rights, a plaintiff bringing a § 1983 

claim must establish that: (1) she possessed a constitutional 

right of which she was deprived; (2) the municipality had a 

policy; (3) the policy “amount[ed] to deliberate indifference” 

to the plaintiff’s constitutional right; and (4) the policy was

the “moving force behind the constitutional violation.” Id. at 

389-91 (internal quotation marks omitted). “‘[D]eliberate 

indifference’ is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious 

consequence of his action.” Bd. of Cnty. Comm’rs of Bryan 

Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997).

In this case, Vargas’s claim fails at the first step. 

Because the officers did not violate any of her constitutional 

rights, see supra pp. 9-17 (no Fourth Amendment violation), 

17-20 (no Fourteenth Amendment violation), there was no 

violation for which the City of Philadelphia could be held 

responsible. Mulholland v. Gov’t Cnty. of Berks, Pa., 706 

F.3d 227, 238 n.15 (3d Cir. 2013) (“It is well-settled that, if 

there is no violation in the first place, there can be no 

derivative municipal claim.”). The District Court thus did not 

err in granting summary judgment for the City on the Monell 

claim.

D. False Imprisonment Claim

Finally, Vargas argues that the District Court erred in 

sua sponte granting summary judgment on the state-law false 

imprisonment claims that she raised on her own behalf and 

for Tabitha. She does not appear to challenge the District 

Court’s finding that neither she nor Tabitha were falsely 

imprisoned and instead argues only that the District Court 
25

should have provided her with notice and an opportunity to 

brief the issue before granting summary judgment against her 

on the claims. 

Assuming that Vargas has not waived her argument on 

the underlying merits of the false imprisonment claims,14 she 

cannot succeed on those claims because the officers were 

entitled to immunity under Pennsylvania’s Political 

Subdivision Tort Claims Act (“PSTCA”), 42 Pa. 

C.S. §§ 8541-8564. The PSTCA provides immunity to 

municipalities and its employees for official actions unless 

the employee’s conduct goes beyond negligence and 

constitutes “a crime, actual fraud, actual malice, or willful 

misconduct.” Id. § 8550. Willful misconduct has been 

defined by the Pennsylvania Supreme Court as “conduct 

whereby the actor desired to bring about the result that 

followed or at least was aware that it was substantially certain 

to follow, so that such desire can be implied.” Renk v. City of 

Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (quoting King v. 

Breach, 540 A.2d 976, 981 (Pa. 1988)) (internal quotation 

marks omitted). As the record makes clear, the officers’ 

 

14 “[U]nder Federal Rule of Appellate Procedure 

28(a)(3) and (5) and Third Circuit Local Appellate Rule 

28.1(a), appellants are required to set forth the issues raised 

on appeal and to present an argument in support of those 

issues in their opening brief. It is well settled that if an 

appellant fails to comply with these requirements on a 

particular issue, the appellant normally has abandoned and 

waived that issue on appeal and it need not be addressed by 

the court of appeals.” Kost v. Kozakiewicz, 1 F.3d 176, 182 

(3d Cir. 1993) (citations omitted). 
26

actions here do not rise to the level of willful misconduct and 

thus Vargas cannot prevail on her false imprisonment claims. 

It is therefore immaterial whether the District Court erred in 

sua sponte granting summary judgment without first giving 

Vargas notice, as any such error would be harmless. 

III. CONCLUSION

For the forgoing reasons, we will affirm the ruling of 

the District Court.