2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-18-2008

Walter v. Pike Cty PA

Precedential or Non-Precedential: Precedential

Docket No. 06-5034

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 06-5034, 06-5144, and 07-1668

 

SUSAN L. WALTER, Individually and

as Administratrix of the Estate of

Michael F. Walter, deceased;

MICHAEL V. WALTER;

LIANNA WALTER, a minor, and

through Susan L. Walter, per

parent and natural guardian;

DONNA WALTER, a minor, by

and through Susan L. Walter,

her parent and natural guardian;

ERIK WALTER, a minor, by

and through Susan L. Walter,

his parent and natural guardian;

DANIEL WALTER, a minor, by

and through Susan L. Walter,

his parent and natural guardian;

KASEY WALTER, a minor, by

and through Susan L. Walter,

her parent and natural guardian;

DARIAN WALTER, a minor, by

and through Susan L. Walter,

her parent and natural guardian;

DALE WALTER, a minor, by

and through Susan L. Walter,
2

his parent and natural guardian;

DEVYN WALTER, a minor, by

and through Susan L. Walter,

her parent and natural guardian;

CORINNE WALTER, a minor, by

and through Susan L. Walter,

her parent and natural guardian;

SEAN MICHAEL FRANCIS WALTER, a minor,

by and through Susan L. Walter,

his parent and natural guardian

 

v.

PIKE COUNTY, PENNSYLVANIA, AND THE PIKE

COUNTY DISTRICT ATTORNEY’S OFFICE; WESTFALL

TOWNSHIP, PENNSYLVANIA, AND THE WESTFALL

TOWNSHIP POLICE DEPARTMENT; TIMOTHY J.

MITCHELL, INDIVIDUALLY AND AS CHIEF OF

POLICE OF WESTFALL TOWNSHIP, AND

SEPARATELY AS COUNTY DETECTIVE FOR PIKE

COUNTY DISTRICT ATTORNEY’S OFFICE; DOUGLAS

J. JACOBS, ESQUIRE, INDIVIDUALLY AND AS

DISTRICT ATTORNEY OF PIKE COUNTY,

PENNSYLVANIA; BRUCE DeSARRO, ESQUIRE,

INDIVIDUALLY AND AS ASSISTANT DISTRICT

ATTORNEY OF PIKE COUNTY, PENNSYLVANIA; AND

WILLIAM TRACY TODD, INDIVIDUALLY AND AS

CHIEF COUNTY DETECTIVE OF PIKE COUNTY,

PENNSYLVANIA
3

Douglas J. Jacobs; Bruce DeSarro,

 Appellants in No. 06-5034

Patti-Lynn Mitchell,

 Appellant in No. 06-5144

Susan L. Walter, Michael V. Walter,

Lianna Walter, Donna Walter,

Erik Walter, Daniel Walter,

Kasey Walter, Darian Walter,

Dale Walter, Devyn Walter,

Corinne Walter, Sean Michael Francis Walter,

 Appellants in No. 07-1668

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 03-cv-01690)

District Judge: Honorable A. Richard Caputo

 

Argued April 16, 2008
 *

The Honorable Paul R. Michel, Chief Judge of the United

States Court of Appeals for the Federal Circuit, sitting by

designation.

4

Before: AMBRO, FISHER and MICHEL,* Circuit Judges.

(Filed: September 18, 2008)

John A. Orlando (Argued)

Mary E. Dixon

White and Williams LLP

1800 One Liberty Place

Philadelphia, PA 19103

Attorneys for Susan L. Walter, et al.

Michael J. Donohue (Argued)

Kreder Brooks Hailstone LLP

220 Penn Ave., Suite 200

Scranton, PA 18503

Susan B. Ayers, Esq.

David M. Maselli, Esq.

Wright & O’Donnell

15 East Ridge Pike

Suite 570

Conshohocken, PA 19428

Attorney for Patti-Lynn Mitchell

Executrix of the Estate of Timothy Mitchell

Gerard J. Geiger (Argued)
5

Newman, Williams, Mishkin, Corveleyn, 

 Wolfe & Fareri, P.C.

712 Monroe Street

P.O. Box 511

Stroudsburg, PA 18360

Attorney for Douglas J. Jacobs and Bruce DeSarro

 

OPINION OF THE COURT

 

MICHEL, Chief Circuit Judge.

In 2001, in Westfall Township, Pike County,

Pennsylvania, Joe Stacy sexually assaulted Michael Walter’s

daughters. Walter then participated in Stacy’s arrest, alongside

Westfall Township Chief of Police Timothy Mitchell, and with

the approval of the Pike County District Attorney’s office.

Stacy was charged and released on bail. In 2002, shortly before

Stacy was to stand trial for the sexual assault, with Walter set to

be a witness against him, Stacy began stalking Police Chief

Mitchell, unbeknownst to Walter. Stacy then murdered Walter

in broad daylight at Walter’s place of business.

In 2003, Walter’s widow and children sued Mitchell,

District Attorney Douglas Jacobs, and Assistant District

Attorney Bruce DeSarro, alleging, inter alia, that they violated

Michael Walter’s right to substantive due process (1) by

involving Walter in Stacy’s 2001 arrest and confession, and (2)
6

by failing to warn Walter in 2002 when Stacy began stalking

Mitchell. Mitchell moved for summary judgment on the basis

of qualified immunity, and DeSarro and Jacobs moved for

summary judgment on the basis of both qualified and absolute

(prosecutorial) immunity. In 2006, Mitchell died, and the

District Court ruled on these summary judgment motions, (1)

denying absolute immunity to DeSarro and Jacobs, (2) granting

qualified immunity to DeSarro and Jacobs for their failure to

warn Walter in 2002, (3) denying qualified immunity to DeSarro

and Jacobs for their involvement in the 2001 arrest of Stacy, and

(4) denying qualified immunity to Mitchell for either the 2001

arrest or the 2002 failure to warn. 

DeSarro, and Jacobs, and Mitchell’s estate now appeal

from the District Court’s partial denial of immunity (which is

appealable under the collateral order doctrine), and the Walters

cross-appeal from the District Court’s partial grant of immunity

and summary judgment. For the reasons that follow, we will

affirm the District Court’s ruling that DeSarro and Jacobs are

entitled to qualified immunity for their failure to warn Walter in

2002. We will reverse the District Court’s rulings that DeSarro

and Jacobs are not entitled to qualified immunity for their

involvement in the 2001 arrest of Stacy, and that Mitchell is not

entitled to qualified immunity for either the 2001 arrest of Stacy

or the 2002 failure to warn Walter. Because we will hold that

Mitchell, DeSarro and Jacobs are entitled to qualified immunity

for the events of 2001 and 2002, we will remand to the District

Court with instructions to grant judgment against the Walters’
7

substantive due process claim on this basis, and we will decline

to reach DeSarro’s and Jacobs’ claim to absolute immunity.

I. BACKGROUND

A. Joe Stacy Assaults Michael Walter’s Children

Michael Walter lived with his wife Susan and their ten

children in Westfall Township. Joe Stacy also lived in Westfall

Township with his wife Agnes. Michael Walter knew Joe Stacy

through the Westfall Township Planning Board, but did not

know that Stacy was a convicted felon who had served six years

in prison for manslaughter and had later been prosecuted for

another gun-related incident. In August of 2001, Mr. and Mrs.

Walter took a weekend trip out of state, leaving three of their

young daughters in the care of the Stacys. When the Walters

returned, their daughters told Mrs. Walter that they had been

sexually assaulted by Joe Stacy.

The Walters called the police. Police Chief Mitchell,

who was a member of the Pike County Child Abuse Task Force,

met with Mr. and Mrs. Walter at their home on August 14, 2001.

Mitchell told the Walters about Stacy’s criminal record, and the

Walters decided to press criminal charges for the sexual assault.

The parties dispute whether or not Mitchell promised police

protection to the Walters on August 14, 2001, and whether the

Walters’ decision to press charges was based in part on a

promise of protection. But in either event, once the Walters had
 1

 However, when asked at deposition about who first came up

with the idea of luring Stacy to the Walters’ house, Mrs. Walter

testified that it was Michael Walter who suggested the idea, and

that Mitchell said he would have to get the plan approved by the

8

decided to proceed with criminal charges, Mitchell and assistant

district attorney DeSarro interviewed the Walters’ daughters,

and the police obtained an arrest warrant for Stacy and a search

warrant for Stacy’s home.

Soon thereafter, Mitchell and DeSarro met again with the

Walters to discuss a plan for arresting Stacy. At base, the plan

was for Michael Walter to lure Stacy over to the Walters’ house,

where Mitchell would then arrest him. But the parties dispute

the motivation for this plan, the exact details of the plan, and

who had notice of which details when. 

The Walters allege in their Amended Complaint that the

plan was formulated by Mitchell, DeSarro, Jacobs, and Pike

County detective William Tracy Todd, and that the plan called

not only for Michael Walter to lure Stacy away from Stacy’s

own house (where the police were afraid Stacy would be able to

start a gun battle with arresting officers), but also for Walter to

extract a confession from Stacy before he was arrested (so that

Stacy could be prosecuted on the basis of the confession, sparing

the Walters’ daughters from having to testify against Stacy).

The Walters allege that Mitchell “directed” Michael Walter to

invite Stacy to the Walters’ home.1
District Attorney’s Office. Walter Dep. at 120.

9

In contrast, Mitchell claims that he did not foist a plan on

the Walters; rather, Michael Walter spontaneously volunteered

to lure Stacy over, and Mitchell agreed but did not intend to use

Walter to extract a confession from Stacy. DeSarro, for his part,

claims that although he approved of having Walter invite Stacy

to the Walters’ house, he did not know about or approve of

using Walter to extract a confession from Stacy. And Jacobs

claims that he did not know about the plan at all until after the

fact.

B. Michael Walter Participates in Joe Stacy’s Arrest

The parties essentially agree about how the arrest actually

proceeded. On August 16, 2001, Stacy drove to the Walters’

house, where he was met by Mitchell and Michael Walter.

Mitchell talked to Stacy for some time, and then Stacy sought to

speak to Walter. Mitchell asked Walter if he would speak to

Stacy, and Walter agreed. Mitchell then left Stacy alone with

Walter for a few minutes, and Stacy made incriminating

statements to Walter about the sexual assault. When Mitchell

returned, Stacy made incriminating statements to Mitchell, who

administered Miranda warnings and placed Stacy under arrest.

Stacy protested that Walter did not want Stacy arrested, and

asked Mitchell to check. Mitchell then asked Walter, in earshot

of Stacy, whether Walter really wanted Mitchell to arrest Stacy.

Walter confirmed that he did, and Mitchell placed Stacy into
10

custody.

The police then executed their search warrant for Stacy’s

home, finding a huge cache of weapons and ammunition, and

the police re-arrested Stacy and charged him with illegal

possession of firearms. A few days later, on August 21, 2001,

Michael Walter wrote to District Justice Charles Lieberman to

request that Stacy be remanded pending trial instead of released

on bail. Walter’s letter explained that he felt that Stacy was “a

risk to my family and the community” and that there was “no

guarantee of protection for my wife and ten children while I am

at work.” But the judge released Stacy on bail, on the

conditions that Stacy stay away from the Walters, seek

psychiatric help, and refrain from possessing firearms. 

C. Stacy Stalks Mitchell and Murders Walter

Stacy’s trial for sexual assault of Walter’s daughters was

scheduled for July of 2002. The Walters allege that, as the trial

approached, Stacy’s behavior became increasingly menacing

and threatening towards Mitchell, Jacobs, and Walter. For

example, in January of 2002, Michael Walter received a prank

call which he attributed to Stacy. Susan Walter also saw a man

she thought looked like Stacy riding a bicycle on her street.

Neither incident was ever confirmed to be attributable to Stacy,

however.

In April of 2002, Stacy made a pre-trial motion to
11

suppress his August 16, 2001 confession, arguing that it resulted

from a plan “to secure a confession through deception,” which

Stacy called a “trap designed by Officer Mitchell and Mr.

Walter.” Outside of court, Stacy called Mitchell repeatedly and

in June of 2002 asked a local real-estate agent for Mitchell’s

home address. Mitchell told the real-estate agent to tell Stacy

that Mitchell could be found at Mitchell’s office at a certain time

every day, and on July 1, 2002, Mitchell observed Stacy sitting

in a car outside Mitchell’s office at the given time. Mitchell

arranged with DeSarro and Jacobs for police protection the next

day in order to catch Stacy stalking him, and the Walters allege

that Jacobs also arranged for protection for himself, including at

his private law practice. But Stacy did not reappear on July 2,

2002. Mitchell and DeSarro sought to revoke Stacy’s bail,

citing Stacy’s appearance at Mitchell’s office the previous day,

but the judge found that there were no grounds to have Stacy

remanded.

The next day, July 3, 2002, Mitchell took leave from his

job and left the vicinity of Pike County. The Walters allege that

Mitchell was instructed to leave for his own protection, but

Mitchell testified that he already had a vacation scheduled for

that time and left work less than a day ahead of schedule.

Meanwhile, Jacobs and DeSarro discussed whether or not to tell

the Walters about Stacy’s behavior toward Mitchell, and decided

against it. DeSarro testified that if Stacy “was going to do

something that was improper one way or another, it was going

to be toward Detective Mitchell, and we had no reason to
12

believe [against] anyone else, at least in my mind.” DeSarro

also testified that he asked the state police to increase their

patrol of the Walters’ street on the weekend before Stacy’s trial,

but the Walters contend that there is no evidence corroborating

that testimony.

On Friday, July 5, 2002, the last weekday before Stacy’s

trial was scheduled to begin, Stacy drove to Walter’s place of

employment at the Port Jervis auto mall in Port Jervis, New

York, outside the jurisdiction of the Westfall Township Police

and Pike County District Attorney’s Office. According to

Walter’s coworker, Stacy entered the auto dealership and waited

for a few minutes while Walter worked with a customer. When

Walter was done with the customer, Stacy shot Walter in the

groin and head, killing him. Stacy had written in a note to his

wife, dated two days before the shooting, that he “hope[d] to get

done what I believe is the best to do–someone has to pay for

setting me up . . . .”

D. The Walters File Suit

On September 25, 2003, after Stacy pleaded guilty to

murdering Michael Walter and was sentenced under a plea

agreement, the Walters filed a Complaint against Mitchell,

DeSarro, Jacobs, Todd, Westfall Township, the Westfall

Township Police Department, Pike County, and the Pike County

District Attorney’s Office, alleging violations of due process

under 42 U.S.C. § 1983, and wrongful death and survival claims
13

under Pennsylvania state law. The Walters filed an Amended

Complaint on October 30, 2003, and the defendants filed

motions to dismiss between October and December of 2003.

 On August 20, 2004, the District Court dismissed the

Walters’ state-law claims for wrongful death and survival, their

claim for punitive damages against Westfall Township and Pike

County, and their due process claim against the Westfall

Township Police Department. The District Court also held that

DeSarro and Jacobs were entitled to absolute immunity for their

decisions regarding the re-arrest of Stacy or revocation of his

bail, but were not entitled to absolute immunity for their acts

pertaining to the investigation of Stacy, and that the Pike County

District Attorney’s Office was not subject to liability under 42

U.S.C. § 1983 for its prosecutorial acts.

On July 15, 2005, the defendants made various motions

for summary judgment on the Walters’ remaining claims. On

August 13, 2006, while those motions were still under

submission, Mitchell died. The District Court ruled on the

summary judgment motions on November 29, 2006. Walter v.

Pike County, 465 F. Supp. 2d 409 (M.D. Pa. 2006) (“Walter”).

Specifically, the District Court (1) granted summary judgment

to Westfall Township, Pike County, and the Pike County

District Attorney’s Office on all outstanding claims, on the basis

of municipal immunity, id. at 424-25; (2) granted summary

judgment to Mitchell, DeSarro, and Jacobs on the Walters’

procedural due process claim, id. at 422-24; (3) denied summary
14

judgment to Mitchell, DeSarro, and Jacobs on the merits of

Walters’ substantive due process claim, id. at 417-22; (4) denied

Mitchell’s motion for summary judgment on the basis of

qualified immunity, id. at 426-38; denied DeSarro’s and Jacobs’

motion for summary judgment on the basis of absolute

immunity, id. at 425-46; and (5) granted in-part and denied inpart DeSarro’s and Jacobs’ motion for summary judgment on

the basis of qualified immunity, holding that DeSarro and

Jacobs were entitled to qualified immunity “as to their failure to

warn the Walter family of the threat posed by Joseph Stacy in

the period leading up to the murder of Michael Walter,” but

were not entitled to qualified immunity “as to their involvement

in the elicitation of the confession from Joseph Stacy on August

16, 2001.” Id. at 429. 

E. The Parties Appeal

On December 9, 2006, DeSarro and Jacobs filed a timely

notice of appeal from the District Court’s denial of their motions

for summary judgment on the basis of qualified and absolute

immunity. On December 21, 2006, in light of Mitchell’s death,

the District Court granted a motion to substitute Patti-Lynn

Mitchell in her representative capacity as the Executrix of the

Estate of Timothy Mitchell, and that same day Mitchell’s estate

filed a timely notice of appeal from the denial of Mitchell’s

motion for summary judgment based on qualified immunity. On

December 20, 2006, the Walters moved in the District Court for

entry of partial final judgment pursuant to Fed. R. Civ. P. 54(b),
15

or in the alternative for certification of the District Court’s

summary judgment order for interlocutory appeal under 28

U.S.C. § 1292(b), so that they could appeal the District Court’s

ruling that DeSarro and Jacobs were entitled to qualified

immunity as to their failure to warn the Walters. 

On January 17, 2007, the District Court denied the

Walters’ motion for partial final judgment, but certified its

November 29, 2006 summary judgment order for interlocutory

appeal, writing that “the issue of whether District Attorney

Defendants Douglas J. Jacobs and Bruce DeSarro are entitled to

qualified immunity as to (A) their participation in the elicitation

of a confession from Joseph Stacy on August 16, 2001, and (B)

their failure to warn Michael Walter of the threat posed by Mr.

Stacy in the period leading up to Mr. Walter’s murder involves

a controlling question of law as to which there is substantial

ground for difference of opinion, and [] an immediate appeal

from the order may materially advance the ultimate termination

of the litigation.” Walter v. Pike County et al., W.D. Pa. case

no. 3:03-cv-01690-ARC, Docket No. 118. We granted the

Walters’ petition for interlocutory appeal on March 1, 2007, and

the Walters filed a timely notice of appeal the next day. Shortly

thereafter, we ordered that the three appeals be consolidated. 
16

II. DISCUSSION

A. Jurisdiction and Standard of Review

Because all three of these consolidated appeals come to

us before the District Court has entered a final judgment in the

case, we will begin with the issue of appellate jurisdiction.

1. The Defendants’ Appeals

Mitchell, DeSarro and Jacobs appeal from the denial of

summary judgment. The Supreme Court has explained that

appeal gives us “a power of review, not one of intervention,”

and as long as a matter remains “open, unfinished or

inconclusive, there may be no intrusion by appeal.” Cohen v.

Benefit Indus. Loan Corp., 337 U.S. 541, 546 (1949). However,

the Court has also identified a “small class” of decisions that,

although short of final judgment on a claim or cause of action,

“finally determine claims of right separable from, and collateral

to, rights asserted in the action, too important to be denied

review and too independent of the cause itself to require that

appellate consideration be deferred until the whole case is

adjudicated.” Id. 

Decisions denying absolute or qualified immunity–such

as the decisions appealed here by Mitchell, DeSarro, and

Jacobs–can fall within this “small class,” because their appellate

consideration cannot be deferred until final judgment. “[T]he
17

essence of absolute immunity is its possessor’s entitlement not

to have to answer for his conduct in a civil damages action.”

Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). Qualified

immunity is also an “entitlement not to stand trial or face the

other burdens of litigation,” but is “conditioned on the resolution

of the essentially legal question whether the conduct of which

the plaintiff complains violated clearly established law.” Id. at

427. When either immunity is asserted in a district court, “it is

effectively lost if a case is erroneously permitted to go to trial,”

and the district court’s denial of immunity is “effectively

unreviewable on appeal from a final judgment.” Id. Therefore

a district court’s denial of a claim of absolute or qualified

immunity, “to the extent that it turns on an issue of law, is an

appealable ‘final decision’ within the meaning of 28 U.S.C. §

1291 notwithstanding the absence of a final judgment.” Id. at

530; Light v. Haws, 472 F.3d 74, 76 (3d Cir. 2007).

The Supreme Court has clarified that the scope of our

review is limited, because “the collateral order doctrine does not

permit an appeal from an order denying a motion for summary

judgment if the issue raised is ‘whether or not the evidence in

the pretrial record [is] sufficient to show a genuine issue of fact

for trial.’” Ziccardi v. City of Phila., 288 F.3d 57, 61 (3d Cir.

2002) (quoting Johnson v. Jones, 515 U.S. 304, 307 (1995)).

Therefore “we lack jurisdiction to consider whether the district

court correctly identified the set of facts that the summary

judgment record is sufficient to prove; but we possess

jurisdiction to review whether the set of facts identified by the
18

district court” supports a claim beyond the bounds of the

immunity at issue–in the case of qualified immunity, whether

that set of facts is “sufficient to establish a violation of a clearly

established constitutional right.” Id. If there are minor gaps in

the District Court’s factual recitation, “we can ‘determine what

facts the district court, in the light most favorable to the

nonmoving party, likely assumed.’” Rivas v. City of Passaic,

365 F.3d 181, 196 n.10 (3d Cir. 2004) (quoting Johnson, 515

U.S. at 319). And while our review here is somewhat

“analogous to [the context of] a 12(b)(6) motion, where we

would not evaluate the underlying evidence to support the

plaintiff’s claims,” Atkinson v. Taylor, 316 F.3d 257, 261 n.4

(3d Cir. 2003), we still apply the standard for summary

judgment, and will “construe the facts in the light most

favorable to the plaintiffs.” Rivas, 365 F.3d at 201 (Ambro, J.,

concurring in part).

2. The Walters’ Appeal

The Walters appeal from the District Court’s partial grant

of summary judgment regarding qualified immunity, which by

itself is not a “final decision” within the meaning of 28 U.S.C.

§ 1291. See, e.g., Coleman v. Parkman, 349 F.3d 534, 537 (8th

Cir. 2003) (“the collateral order doctrine does not apply . . .

when a party complains that the district court should not have

granted summary judgment based on qualified immunity”).

However, we have jurisdiction over the Walters’ appeal as

certified by the District Court and accepted by us under 28
19

U.S.C. § 1292(b). The scope of our review of the Walters’

appeal is not limited directly by the Johnson line of cases. See

Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 204 (1996) (in

appeals certified under section 1292(b), “the courts of appeals

[may] exercise jurisdiction over any question that is included

within the order that contains the controlling question of law

identified by the district court”). But because the Walters appeal

from the grant of summary judgment against them, our standard

of review is essentially the same as it is for the appeals of

Mitchell, DeSarro and Jacobs–we will construe the facts in the

light most favorable to the Walters, and will determine whether,

on those facts, DeSarro and Jacobs are entitled to qualified

immunity. See, e.g., Egolf v. Witmer, 526 F.3d 104, 106-107

(3d Cir. 2008) (appeal from grant of summary judgment based

on qualified immunity) (“we will accept the facts as determined

by the District Court, construing them in a light most favorable

to the party that is claiming a constitutional violation”).

B. Qualified Immunity

We now turn to the applicability of qualified immunity,

an issue raised in all three appeals. Qualified immunity, as the

Supreme Court has explained, is the principle that “government

officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” 

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine
20

whether this type of immunity applies, we engage in a multi-step

inquiry. “First, we must ask whether the conduct alleged by the

plaintiff violated a clearly established principle of constitutional

or statutory law. If so, then we go on to ask whether the

unlawfulness of the action would have been apparent to an

objectively reasonable official.” Showers v. Spangler, 182 F.3d

165, 171-172 (3d Cir. 1999) (internal citation omitted); see also

Rouse v. Plantier, 182 F.3d 192, 196-197 (3d Cir. 1999)

(three-step inquiry) (“(1) whether the plaintiffs alleged a

violation of their constitutional rights; (2) whether the right

alleged to have been violated was clearly established in the

existing law at the time of the violation; and (3) whether a

reasonable official knew or should have known that the alleged

action violated the plaintiffs’ rights”).

Whether this inquiry is couched in two or three stages,

the first or “threshold question” is this: “Taken in the light most

favorable to the party asserting the injury, do the facts alleged

show the [official’s] conduct violated a constitutional right?”

Saucier v. Katz, 533 U.S. 194, 201 (2001). Here, the Walters

allege that Mitchell, DeSarro, and Jacobs deprived Michael

Walter of his right to substantive due process under the

Fourteenth Amendment to the Constitution. The District Court

held that the facts, taken in the light most favorable to the

Walters, support this claim under the theory of state-created

danger. We disagree with the District Court, and on this basis

we will hold that qualified immunity is applicable here as to all

defendants and events at issue.
21

1. State-Created Danger

The state-created danger doctrine–developed by a

number of Circuit Courts of Appeal but not yet formally

recognized by the Supreme Court–is an exception to the rule

that “the Due Process Clauses generally confer no affirmative

right to governmental aid, even where such aid may be

necessary to secure life, liberty, or property interests of which

the government itself may not deprive the individual.”

Deshaney v. Winnebago County Dep’t of Soc. Serv., 489 U.S.

189, 196 (1989). In other words, even where a plaintiff suffers

harm at the hands of a non-governmental actor, the government

may be liable because “the government has a constitutional duty

to protect a person against injuries inflicted by a third-party

when it affirmatively places the person in a position of danger

the person would not otherwise have faced.” Kamara v. AG of

the United States, 420 F.3d 202, 216 (3d Cir. 2005). In our

Circuit, there are four “essential elements of a meritorious

‘state-created danger’ claim: 

(1) the harm ultimately caused was

foreseeable and fairly direct;

(2) a state actor acted with a degree of

culpability that shocks the conscience;

(3) a relationship between the state and the

plaintiff existed such that the plaintiff was
22

a foreseeable victim of the defendant’s

acts, or a member of a discrete class of

persons subjected to the potential harm

brought about by the state’s actions, as

opposed to a member of the public in

general; and 

(4) a state actor affirmatively used his or her

authority in a way that created a danger to

the citizen or that rendered the citizen

more vulnerable to danger than had the

state not acted at all.”

Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir.

2006), cert. denied, 127 S. Ct. 1483 (2007).

The District Court held that genuine issues of material

fact exist as to each of these four elements, and that therefore the

Walters meet the “threshold question” in the qualified immunity

analysis. Walter, 465 F. Supp. 2d at 418-22, 427. We agree that

the third element is met–as a participant in Stacy’s arrest,

Michael Walter was in a discrete class of persons more likely to

be targeted by Stacy than was a member of the public in general.

And we may assume without deciding that the first element,

foreseeability of the harm, is met as well. But we conclude that

the District Court erred in holding the second and fourth

elements of the state-created danger test satisfied in this case.

In particular, we hold that no reasonably jury could find that
23

Mitchell, DeSarro, and Jacobs acted with conscience-shocking

culpability in planning and effecting Stacy’s arrest and

confession, and we hold that the failure to warn the Walters in

2002 about Stacy’s behavior cannot be deemed an affirmative

use of authority sufficient to predicate liability.

a. Stacy’s Arrest Does Not Shock the Conscience

As the District Court recognized, “[t]he 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), and depends in

particular on “the extent to which a state actor is required to act

under pressure.” Sanford v. Stiles, 456 F.3d 298, 301 (3d Cir.

2006). “In a ‘hyperpressurized environment,’ an intent to cause

harm is usually required,” while “in cases where deliberation is

possible and officials have the time to make ‘unhurried

judgments,’ deliberate indifference is sufficient.” Id. at 309. In

the middle ground, or “circumstances involving something less

urgent than a ‘split-second’ decision but more urgent than an

‘unhurried judgment,’” there is a mid-level standard that

requires gross negligence and arbitrariness–the state actor must

“consciously disregard[] a great risk of serious harm.” Id. at 308

(internal citation omitted).

Here, the District Court held that the mid-level

culpability standard should apply to the circumstances of

Stacy’s arrest at the Walters’ house in 2001, because “Mitchell
 2

Implicit in the District Court’s holding is its determination

that–contrary to the Walters’ allegations in the Amended

Complaint and their argument on appeal–Mitchell did not plan

ahead of time to involve Walter in the process of extracting a

confession from Stacy (and, by implication, neither did DeSarro

or Jacobs). To the extent the Walters’ appeal gives us

jurisdiction to review this factual determination by the District

Court–because the Walters appeal from the grant of summary

judgment–we affirm that the evidence does not support a finding

that Mitchell, DeSarro, or Jacobs planned ahead of time to have

Michael Walter personally extract a confession from Stacy.

Mitchell testified that he did not so intend, and the Walters do

not point to any testimony or other evidence contradicting him

on this point. See Mitchell Dep. at 120 (“Q: Did the plan

involve Mr. Walter conducting any of the interrogation? A:

Never”).

 3

We note that the District Court’s opinion on this point is not

clear. After discussing the applicable standard of culpability for

the day of Stacy’s arrest, the District Court moved directly to the

events of 2002, and held that a jury could find the defendants

24

was forced on-the-spot to make a decision whether to allow

[Stacy to talk to Walter] and potentially gain a confession (or

alternatively be forced to break up a fist-fight), or disallow it

and likely not gain a confession (and potentially hamper Stacy’s

prosecution).” Walter, 465 F. Supp. 2d at 420.2

 We agree that

the mid-level culpability standard is appropriate for Mitchell’s

actions at the Walters’ house, and we hold that no reasonable

jury could find it met.3

 First and foremost, Mitchell asked
were deliberately indifferent to Michael Walter’s safety in that

later timeframe. See Walter, 465 F. Supp. 2d at 421.

25

Walter if he was willing to talk to Stacy, and only allowed the

conversation once Walter agreed. Second, even assuming that

Mitchell’s decision involved a great risk to Walter’s safety, the

facts as articulated by the District Court do not show that

Mitchell consciously disregarded that risk, but rather that he

weighed it against the possible benefits that could result,

including a stronger case against Stacy. Thus, while Mitchell’s

decision was clearly unfortunate, and may have been

unreasonable under the circumstances, it was at most highly

negligent.

We also hold that DeSarro and Jacobs did not act with the

culpability required by the state-created danger doctrine in the

timeframe of Stacy’s arrest. Even assuming that both DeSarro

and Jacobs approved the plan to have Michael Walter lure Stacy

out to be arrested, and even assuming that this approval was the

result of unhurried judgment, such that the lowest standard of

conscience-shocking culpability applies, no reasonable jury

could find that DeSarro and Jacobs acted with deliberate

indifference to Michael Walter’s safety. Rather, DeSarro and

Jacobs had to balance the risks of arresting Stacy at the Walters’

house against the risks of arresting him at his own house, where

they believed (rightly, as it turned out) that Stacy had an arsenal

of weapons at his disposal.
26

In this regard our case is analogous to Matican v. City of

New York, recently decided by the Second Circuit. 524 F.3d

151 (2d Cir. 2008). In Matican, the plaintiff participated in a

sting to help police arrest a suspected drug dealer. Matican set

up a drug buy with the dealer, and when the dealer arrived,

Matican identified his car so that the police could search it and

arrest him. Id. at 153-54. After being released on bail, the

dealer found Matican on the street and slashed his face with a

box cutter. Id. at 154. Matican sued the police, alleging that

“the officers executed the sting operation in such a way that [the

drug dealer] learned that Matican had set him up.” Matican v.

City of New York, 424 F. Supp. 2d 497, 505 (S.D.N.Y. 2006).

In affirming that this police conduct did not shock the

conscience, the Second Circuit observed that the officers

designing the sting “had two serious competing obligations:

Matican’s safety and their own,” and they could reasonably have

concluded that “the arrest of a potentially violent drug dealer

demanded” the protocol used even though it “might jeopardize

the informant’s identity in the future.” Matican, 524 F.3d at

159. 

In our case, as was the Second Circuit in Matican, we

“are loath to dictate to the police how best to protect themselves

and the public, especially when our ruling could be taken to

require officers to use riskier methods than their professional

judgment demands.” Id. Given that DeSarro and Jacobs did not

intend for Walter to interrogate Stacy, but only for Walter to

invite him over to the Walters’ house on a pretext, we hold that
27

their approval of the arrest plan was at most negligent, and does

not shock the conscience.

b. Failure to Warn The Walters Does Not Constitute

Affirmative Use of Authority

We also hold that Mitchell, DeSarro, and Jacobs are

entitled to qualified immunity for their failure to warn the

Walters in 2002 about Stacy’s behavior toward Mitchell,

because a state actor’s failure to warn about the likelihood of a

private act of violence–even a highly culpable failure to

warn–cannot itself predicate liability. Rather, “under the fourth

element of a state-created danger claim, ‘liability . . . is

predicated upon the states’ affirmative acts which work to the

plaintiffs’ detriments in terms of exposure to danger,’” and we

“have never found a state-created danger claim to be meritorious

without an allegation and subsequent showing that state

authority was affirmatively exercised.” Bright, 443 F.3d at 282

(quoting D.R. by L.R. v. Middle Bucks Area Vo. Tech. School,

972 F.2d 1364, 1374 (3d Cir. 1992) (en banc) (emphasis added

by Bright court)). 

While “the line between action and inaction may not

always be clear,” id., here the Walters’ allegations about the

period leading up to Stacy’s July, 2002 trial undoubtedly fall on

the side of inaction. The Walters allege in their Amended

Complaint that after Stacy began exhibiting threatening

behavior, Mitchell, DeSarro, and Jacobs made conscious
 4

We note that the District Court found that Mitchell and

DeSarro did in fact seek to have Stacy’s bail revoked, without

success, just before Stacy murdered Michael Walter. Walter, 465

F. Supp. 2d at 414. 

28

decisions not to re-arrest Stacy, not to seek revocation of his

bail, and not to warn Michael Walter or arrange protection for

him, and that those decisions shock the conscience.4

 We have

squarely held that “failing to more expeditiously seek someone’s

detention,” and failing to arrest someone who poses a threat, are

not themselves affirmative uses of authority within the meaning

of the state-created danger doctrine. Bright, 443 F.3d at 284;

Burella v. City of Phila., 501 F.3d 134, 147 (3d Cir. 2007). We

have also held that a state actor’s assurance to a plaintiff that he

had “nothing to worry about and that he [was] fine,” when in

fact the plaintiff was quite ill and required emergency care, did

not amount to an affirmative use of state authority because it did

not restrain the plaintiff from acting on his own behalf to obtain

private assistance. Ye v. United States, 484 F.3d 634, 641 (3d

Cir. 2007); id. at 642 (“assurances of well-being are not

‘affirmative’ acts within the meaning of the fourth element of a

state-created danger claim”). If a state-created danger claim

cannot be predicated on a failure to arrest, neither can it be

predicated on a failure to provide protection. See, e.g., Bright,

443 F.3d at 284 (“mere ‘failure to protect an individual against

private violence’ does not violate the Due Process Clause”

(quoting Deshaney, 489 U.S. at 197)). And if an assurance of

well-being despite the presence of a threat is not a sufficiently
29

affirmative act, neither is the mere failure to warn of a threat. 

In holding that Mitchell, DeSarro, and Jacobs are entitled

to qualified immunity for the events of 2002, we recognize that

those events did not occur in a vacuum, and that the threat posed

by Stacy in 2002 was likely due in part to the circumstances of

his arrest in 2001, including the actions taken by the defendants

at that time. But because those earlier actions were not taken

with the required level of culpability, they cannot predicate a

state-created danger claim. Indeed, our caselaw firmly supports

the requirement that defendants act with culpability. Compare

Phillips v. County of Allegheny, 515 F.3d 224, 241 (3d Cir.

2008) (“the complaint alleges that [defendants] were aware that

Michalski was distraught over his break up with Ferderbar and

yet they assisted him in getting confidential information on

Ferderbar . . . .[thus] the complaint does sufficiently allege facts

that these defendants . . . were deliberately indifferent in

providing Michalski more confidential information” (emphases

added)) and Rivas v. City of Passaic, 365 F.3d at 196 (“If [the

defendants] misrepresented the assault, not only did they

abdicate their duty to render medical assistance, but they placed

Mr. Rivas in greater danger by falsely accusing him of acting

violently,” and “[a] jury could find . . . that such conduct shocks

the conscience” (emphases added)) with Bennett v. Phila., 499

F.3d 281, 289 (3d Cir. Pa. 2007) (“Maiden did not perform the

duties vis-a-vis Porchia that were incumbent upon a dedicated

social worker. Although we believe Maiden’s actions (or more

accurately, inactions) were beyond the pale, we conclude that in
30

essence the [plaintiff’s] argument is no more than another effort

to circumvent the state-created danger doctrine. We are not free

to do that.” (emphasis added)) and Burella, 501 F.3d at 147-148

(“Jill Burella contends that the officers’ ‘continual refusal to

enforce the court order and follow state law requiring Officer

Burella’s arrest, together with their false direction that “there

was nothing they could do,” as well as overall inadequate

intervention were affirmative acts which together increased the

likelihood of harm,’” but “it is apparent that what she actually

contends is that the officers failed to act at all . . . ,” and “[t]hat

failure, while deeply troubling and unquestionably tragic, does

not give rise to a cognizable state-created danger claim.”

(emphasis added)).

Here, the District Court held that a jury could reasonably

find that the defendants affirmatively used their authority in

2001, by “allowing Michael Walter to become involved in

eliciting a confession from Joseph Stacy,” Walter, 465 F. Supp.

2d at 422, and could reasonably find that the defendants were

deliberately indifferent in 2002 in their “failure to warn the

Walter family of Joseph Stacy’s menacing behavior . . . .” Id. at

421. But for the reasons we have articulated above, these

findings would not amount to a constitutional violation–they

would not establish that the defendants committed a culpable

act, only that they acted in 2001 and then, months later, shocked

the conscience through inaction. See, e.g., Kaucher, 455 F.3d

at 435 (affirming grant of summary judgment for defendants

because plaintiffs “have not alleged an affirmative, culpable act
31

on the part of defendants sufficient to implicate the state created

danger doctrine” (emphasis added)); Bright, 443 F.3d at 284

(rejecting plaintiff’s argument where plaintiff “seeks to bring

the law enforcement delay within the scope of the state-created

danger doctrine by pointing to an affirmative action of the state

which preceded it”); Leidy v. Borough of Glenolden, 277 F.

Supp. 2d 547, 560, 565 (E.D. Pa. 2003) (Even though “a jury

could conclude that Police Chief Cooke’s supine, bureaucratic

inaction constituted conscience-shocking deliberate

indifference,” state-created danger claim was rejected because

“the wrongs of which plaintiffs complain is that the State did not

do enough to protect them . . . .” (emphasis added)), aff’d 117

Fed. Appx. 176 (3d Cir. 2004). 

Because the Walters cannot establish a constitutional

violation, we need not move beyond this threshold question in

the qualified-immunity analysis. See Saucier, 533 U.S. at 201;

Ye, 484 F.3d at 643 n.6 (“As there was no constitutional tort, we

need not reach the question of whether the law was clearly

established . . . .”). Further, because we hold that all three

defendants are entitled to summary judgment on the basis of

qualified immunity, we need not decide whether DeSarro and

Jacobs are entitled to absolute immunity.

III. Conclusion

For the foregoing reasons, we affirm the decision of the

District Court that DeSarro and Jacobs are entitled to qualified
32

immunity for the events of 2002 preceding Michael Walter’s

murder. We reverse the decisions of the District Court that

DeSarro and Jacobs are not entitled to qualified immunity for

their role in the 2001 arrest of Joe Stacy, and that Mitchell is not

entitled to qualified immunity for his role in the 2001 arrest or

for the events of 2002. We hold that Mitchell, DeSarro, and

Jacobs are entitled to qualified immunity for all events at issue

in these appeals, and we remand to the District Court with

instructions to grant judgment against the Walters’ substantive

due process claim on this basis, as well as for any other further

proceedings necessary and consistent with this opinion (which,

we recognize, might consist only of entering final judgment).