2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-20-2003

Schieber v. Philadelphia

Precedential or Non-Precedential: Precedential

Docket 01-2312

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Recommended Citation

"Schieber v. Philadelphia" (2003). 2003 Decisions. Paper 775.

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PRECEDENTIAL 

 Filed February 20, 2003 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 01-2312 

SYLVESTER J. SCHIEBER; VICKI A. SCHIEBER, as CoPersonal Representatives of the Estate of Shannon 

Schieber; Sylvester Schieber; Vicki Schieber 

v. 

CITY OF PHILADELPHIA; STEVEN WOODS, Individually 

and as a Police Officer; RAYMOND SCHERFF, Individually 

and as a Police Officer 

 STEVEN WOODS, Individually and as 

 a Police Officer; RAYMOND SCHERFF, 

 Individually and as a Police Officer, 

 Appellants 

On Appeal From the United States District Court 

For the Eastern District of Pennsylvania 

(D.C. Civil Action No. 98-cv-05648) 

District Judge: Honorable Norma L. Shapiro 

Argued January 25, 2002 

BEFORE: NYGAARD and STAPLETON, Circuit Judges , and 

SLEET,* District Judge 

(Opinion Filed February 20, 2003) 

_________________________________________________________________ 

* Honorable Gregory M. Sleet, United States District Judge for the 

District of Delaware, sitting by designation. 

 

 Marc L. Fleischaker 

 Anne L. Milem 

 Arent, Fox, Kintner, Plotkin 

 & Kahn 

 1050 Connecticut Avenue, N.W. 

 Washington, DC 20036 

 and 

 David Rudovsky (Argued) 

 Kairys, Rudovsky, Epstein, 

 Messing & Rau 

 924 Cherry Street, Suite 500 

 Philadelphia, PA 19107 

 Attorneys for Appellees 

 Jane L. Istvan (Argued) 

 City of Philadelphia Law 

 Department 

 1515 Arch Street 

 One Parkway 
 Philadelphia, PA 19102 

 Attorney for Appellants 

 Terry L. Fromson 

 Women’s Law Project 

 125 South 9th Street, Suite 300 

 Philadelphia, PA 19107 

 Attorney for Amici-Appellees 

OPINION ANNOUNCING THE JUDGMENT OF THE COURT 

STAPLETON, Circuit Judge: 

In the early morning hours of May 7, 1998, Shannon 

Schieber was raped and murdered in her second floor 

apartment at 251 S. 23rd Street, Philadelphia, 

Pennsylvania. Ms. Schieber’s parents, Sylvester and Vicki, 

brought this civil rights suit on their own behalf and as 

representatives of her estate against the City of 

Philadelphia and Steven Woods and Raymond Scherff, the 

police officers who responded to a 911 call from one of 

Schieber’s neighbors on the night of her murder. After 

extensive discovery, Officers Woods and Scherff moved for 

 2 

 

summary judgment based in part on their claim to qualified 

immunity. The District Court denied their motions and they 

now appeal. For the reasons that follow in this opinion and 

in Judge Nygaard’s separate opinion, the District Court’s 

order denying summary judgment will be reversed, and this 

matter will be remanded with instructions to enter 

summary judgment in favor of Officers Woods and Scherff. 

I. 

The following account of the relevant facts reflects the 

undisputed evidence in the summary judgment record 

except where the contrary is expressly noted. 

At approximately 1:00 A.M. on May 7, 1998, Ms. 

Schieber’s neighbors, Leah Basickes and Parmatma 

Greeley, were watching television when they heard a noise 

that made Greeley think that Schieber was in a "serious 

domestic dispute." App. at 64. Basickes thought it had 

come from the adjacent Manning Street and went to the 

window to check. They discussed their differing views about 

the source of the noise before Basickes went to bed. 

Shortly after 2:00 A.M., while still watching television, 

Greeley heard what he believed to be a scream and a 

choking noise coming from Schieber’s apartment. He was 

sufficiently concerned that he left his apartment, crossed 

the hall, and knocked on Schieber’s door. He tried 

unsuccessfully to open the door and then shouted, but 

heard no response. 

At 2:04 A.M., Greeley called 911 and reported: 
 My next door neighbor, I just heard her yelling for help 

 . . . Uh, sh-we’re on the second floor, . . . we’re on one 

 side and she’s on the other. And I just heard . . . her 

 yell help. I knocked on the door and I just heard like 

 a . . . choking type sound and I just called. 

App. at 432. 

When Greeley’s call was received by the 911 dispatcher, 

Officers Woods and Scherff were on patrol in different 

patrol cars. The dispatcher sent a Priority 1 radio dispatch 

passing on the "report of a female screaming" at 251 S. 

 3 

 

23rd Street and calling for immediate assistance. Less than 

five minutes later, Woods and Scherff arrived 

simultaneously at the 23rd Street address. They proceeded 

immediately to the door at that address and encountered a 

woman inside her living room on the first floor with two 

windows open. They asked if she had called police with 

reference to a woman screaming. She responded that she 

had heard no scream and directed them to another 

entrance to the building around the corner on Manning 

Street. 

At the Manning Street entrance, Woods and Scherff 

encountered Greeley and Amy Reed, who lived in the first 

floor apartment immediately under Ms. Schieber’s second 

floor apartment. Reed had been awakened by Greeley after 

he heard the scream. The four of them then proceeded to 

the door of Schieber’s apartment where the officers knocked 

and received no response. 

During the next few minutes, the officers interviewed 

Greeley, Reed, and Christine Ritter, who lived on the third 

floor directly above Schieber’s apartment and appeared on 

the second floor landing in response to the noise 

occasioned by the officers knocking on Schieber’s door. 

Reed and Ritter informed the officers that they had been 

asleep and had heard no scream.1 Greeley advised that he 

believed he had heard a scream and a choking noise 

coming from Schieber’s apartment, but upon being 

_________________________________________________________________ 

1. Reed did advise the officers that before she went to bed, an hour and 

a half before being awakened by Greeley, she heard something fall to the 

floor in Schieber’s apartment. The sound was not out of the ordinary, 

however, and did not concern her. As she testified at the deposition: 

 Q. Was [sic] the noises that you heard prior to Parm [Greeley] 

 waking you up, were those noises that were out of the unusual or 

 were those somethings [sic] that were regularly occurring? 

 A. I can’t say I never heard noises like that before coming from her 

 apartment. 

 Q. Did the noises that you heard startle you in any way? 
 A. No, I thought something probably fell over. 

App. at 131. 

 4 

 

questioned about this, expressed some uncertainty. In his 

deposition, Greeley recounted what he told the officers in 

the following manner: 

 Q. What I really want to know is what you told the 

 police about the events that occurred before their 

 arrival? 

 A. I said I heard my neighbor scream for help and a 

 choked off sound. 

 Q. And a choked off sound? 

 A. Yes. 

 Q. That’s what you told them? 

 A. Yes. 

 Q. What else did you tell them with regard to what 

 you heard? 

 A. They asked me if I was sure it came from her place 

 or did it come from outside. I said -- I said I’m not -- 

 I said maybe, when they said are you sure it didn’t 

 come from outside 

* * * 

 Q. Did the police ask you if the noise came from a 

 different location other than Miss Schieber’s 

 apartment? 

 A. Yes. 

* * * 

 Q. Let me ask you the question, did the police ask 

 you if you believed that the noise came from the 

 outside? 

 A. Something like that, yes. 

 Q. That’s paraphrasing what you remember them 

 saying? 

 A. Yeah. 

 Q. Now, in response to that, were you 100 percent 

 certain at that time that the noise did come from Miss 

 Schieber’s apartment? 

 5 
 

 A. Well, I said maybe it came from the outside. 

 Q. Maybe indicating that you may not have been 100 

 percent sure? 

 A. Yes. 

 Q. So it’s possible that the noise in your mind did not 

 come from Miss Schieber’s apartment? 

 A. At this point I was getting a little insecure, the 

 whole neighborhood was up, and I was -- when they 

 asked me that, I said maybe. 

 Q. Did you shrug your shoulders like you did just 

 now? 

 A. Maybe, I can’t remember that, that far. 

 Q. So when the police were there, it’s possible that 

 you could have shrugged your shoulders? 

 A. It’s possible. 

App. at 74-75. 

Ritter described Greeley’s report to the officers as follows: 

 Q. With respect to the discussion about what Parm 

 [Greeley] had heard, did the police officers inquire 

 whether the noises that he heard could have come 

 from the outside? 

 A. I believe they did, yes. 

 Q. And what was Mr. Greeley’s response to those 

 questions? 

 A. His response was uncertain. His response was it 

 could have possibly come from outside, but he believed 

 he heard something inside. 

 Q. Do you remember hearing him say that it could 

 have possibly come from outside? 

 A. I do not remember that specific statement 

 specifically. But certainly in the tone of voice and 

 phrasing of his statements, he implied uncertainty. 

 Q. As you listened to this, was it very clear to you in 

 your own mind that he was expressing uncertainty? 

 6 

 

 MS. APPEL: Objection to the form of the question. 

 BY MR. WINEBRAKE: 
 Q. I’m just asking for your observations. Based on 

 your observations, in your mind, did you believe that 

 he was expressing uncertainty? 

 A. Yes. I understood him to be uncertain, indeed 

 believed him to be uncertain. 

* * * 

 Q. When I asked you questions earlier this afternoon, 

 you testified that at some point Mr. Greeley expressed 

 uncertainty regarding whether or not the sound had 

 come from outside the apartment complex; is that 

 correct? 

 A. Yes. 

 Q. Is that your -- 

 A. Although I might say he expressed uncertainty 

 whether it had come from inside as opposed to outside. 

 Q. In other words, he expressed at some point that he 

 might not be so sure where the sounds came from; is 

 that accurate? 

 A. Yes, that is accurate. 

 Q. And he expressed that verbally; am I correct about 

 that? 

 A. Yes. 

 MS. APPEL: Objection to the form. 

 BY MR. WINEBRAKE: 

 Q. Were the police officers present when he expressed 

 that? 

 A. I believe so. However, even had he not explicitedly 

 [sic] said I’m uncertain, his tone of voice, his phrasing 

 of questions and his general behavior would suggest 

 that he was not absolutely certain as to what he heard 

 or where it came from. 

 Q. And that’s while the police were there? 

 7 

 

 A. Certainly. 

App. at 209, 219. 

In addition to these interviews, the officers checked 

Schieber’s front door, her window, and the door to her 

balcony and detected no signs of forced entry. They also 

inspected the alley behind the building. 
The police knocked on Schieber’s door a second time, this 

time with the heel of their night sticks, identified 

themselves as the police, and asked to be admitted. Nothing 

was heard from within. 

The landlord did not live in the building, and at some 

point during the proceedings, there was a discussion as to 

whether Schieber’s door should be forced open. In the 

course of that discussion, Greeley stated something to the 

effect that he would be embarrassed if the officers forced 

the door and found nothing wrong inside. As the District 

Court noted, there is a dispute in the record as to whether 

this statement was volunteered or came only in response to 

questioning from the officers. Greeley recalls his statement 

this way: 

 After they knocked on the door with the batons and 

 everything I said to them, it’s in my statement, I’ll be 

 embarrassed if you break down the door and nothing 

 is happening, and I think it was Officer Woods said, 

 we’re not going to break down the door, just like that. 

 Then I mean I was in shock at that point. I thought-- 

 I was relieved when the police had come. I’m not 

 trained in breaking down doors, and it was a bit of a 

 put-off. 

* * * 

 Q. Tell me why you said [you would be embarrassed]. 

 A. Because I thought they were going to break down 

 the door, and I hadn’t heard any sounds in so long 

 that I was sort of just at this point he’s probably woken 

 up a bunch of people and I was just -- let me phrase 

 this properly. It was my ego on the line. I thought he 

 was going to break down my neighbor’s door on my 

 call, so it would be embarrassing if you break down 

 8 

 

 your neighbor’s door and there’s nothing happening, 

 don’t you think? 

 Q. At the time you made this statement, did you 

 become unsure as to whether or not the door should 

 be broken in? 

 A. I thought they were going to break down the door. 

 MR. SCOTT: Would you read back my question, 

 please. 

 . . . . 

 (There was a brief pause in the proceedings.) 

 . . . . 
 THE WITNESS: I thought it still should be broken 

 down. 

App. at 75, 76. Reed testified that Greeley’s statement came 

in response to a question from the officers as to how he 

would "feel if they did kick down the door and nothing 

happened." App. at 136. 

As the officers were leaving the premises, they told 

Greeley, Reed, and Ritter to call 911 if they heard any noise 

from the apartment and they would return to investigate 

further. The District Court found that the record as a whole 

would support an inference that the officers effectively 

communicated to the neighbors that they should "do 

nothing but call 911 if they heard additional noise." It was 

on this basis that the District Court concluded that a trier 

of fact might find that the officers "greatly increased the 

risk of harm to Schieber by preventing the neighbors from 

effectuating rescue themselves." App. at 18. 

The record further reveals that the officers were aware 

that there had been other rapes in the general area in the 

last year. The officers were at the 23rd Street address less 

than six minutes. They left without receiving a call on their 

police radios. They remained on duty until 7:00 A.M. 

Both officers gave statements to supervisors the next day 

and testified at depositions after this suit was filed. Their 

consistent explanation of their conduct was that they 

understood they were authorized to make a forced entry if 

 9 

 

they believed the occupant was inside and in jeopardy and 

that they would have done so without hesitation if they had 

been persuaded that this was the case. Greeley was 

unsure, however, of the source of the scream he heard, and 

their investigation left them unconvinced that there was a 

problem inside. 

II. 

This Court has jurisdiction to review a District Court 

order denying qualified immunity at the summary judgment 

stage under the collateral order doctrine to the extent that 

the denial turns on questions of law. Mitchell v. Forsyth, 

472 U.S. 511, 527-28 (1985). We exercise plenary review 

over the questions of law. See Eddy v. V.I. Water & Power 

Auth., 256 F.3d 204, 208 (3d Cir. 2001). We have no 

jurisdiction, however, in an interlocutory appeal to review a 

District Court’s determination that there is sufficient record 

evidence to support a set of facts under which there would 

be no immunity. See Johnson v. Jones, 515 U.S. 304, 313 

(1995). Thus, where the District Court has adopted a set of 

facts for the purpose of ruling on the qualified immunity 

issue, we must accept those facts when reviewing a denial 

of immunity. Id. at 319. As we recently explained in Forbes 

v. Township of Lower Merion, 313 F.3d 144 (3d Cir. 2002): 
 we may "review whether the set of facts identified by 

 the district court is sufficient to establish a violation of 

 a clearly established constitutional right," but we may 

 not "consider whether the district court correctly 

 identified the set of facts that the summary judgment 

 record is sufficient to prove." . . . When a defendant 

 argues that a trial judge erred in denying a qualified- 

 immunity summary-judgment motion because the 

 judge was mistaken as to the facts that are subject to 

 genuine dispute, the defendant’s argument cannot be 

 entertained under the collateral-order doctrine but 

 must instead await an appeal at the conclusion of the 

 case. 

Forbes, 313 F.3d at 147-48 (quoting from Ziccardi v. City of 

Philadelphia, 288 F.3d 57, 61 (3d Cir. 2002)). In the context 

of this case, this means that we must accept the District 

 10 

 

Court’s finding of sufficient evidence to support a finding 

that a police instruction to do nothing but call 911 stopped 

the neighbors from effecting rescue themselves. 2 

In evaluating a claim of qualified immunity, we must first 

determine whether the plaintiff has properly asserted a 

deprivation of a constitutional right; then we can consider 

whether the right was clearly established at the time of the 

alleged violation. See Wilson v. Layne, 526 U.S. 603, 609 

(1999); Conn v. Gabbert, 526 U.S. 286, 290 (1999). 

Following this procedure allows courts "to set forth 

principles which will become the basis for a holding that a 

right is clearly established" in the future. Saucier v. Katz, 

533 U.S. 194, 201 (2001). 

III. 

Ms. Schieber’s parents claim that Officers Woods and 

Scherff and the City of Philadelphia violated their rights 

and those of their daughter under the Due Process Clause. 

With respect to Officers Woods and Scherff, the claim is 

that they deprived Schieber of assistance from her 

neighbors that would have saved her life in violation of her 

constitutionally protected right to personal security. 

The case against Officers Woods and Scherff is predicated 

_________________________________________________________________ 

2. The defendants correctly insist that no one testified that the officers 

used the words "do nothing but call 911." Nevertheless, the District 

Court found that the record as a whole would support a finding that this 

was the message conveyed by them. This was not an inadvertent slip of 

the pen. The District Court expressly recognized that the state created 

danger doctrine requires a showing that the state created or increased 

the risk of injury to the injured party and denied summary judgment 

solely because a trier of fact could find this to be the case here. The 

central holding of the District Court’s opinion was as follows: 

 Here, the officers’ decision to: (1) leave without forcing Schieber’s 
 door; and (2) instruct the neighbors to do nothing but call 911 if 

 they heard additional noise, greatly increased the risk of harm to 

 Schieber by preventing the neighbors from effectuating rescue 

 themselves. 

App. at 18. Accordingly, we may not review whether the District Court 

erred in its conclusion regarding the message conveyed. 

 11 

 

on the state-created danger doctrine. That doctrine had its 

origin in DeShaney v. Winnebago County Dep’t of Soc. 

Servs., 489 U.S. 189 (1989), where the Supreme Court 

considered whether the Due Process Clause of the 

Fourteenth Amendment imposed upon the state an 

affirmative duty to protect a child from domestic abuse 

when a state actor had knowledge of prior suspicious 

injuries. The Court held that in the absence of special 

circumstances the state has no duty to protect a person 

from private violence. It reasoned that: 

 nothing in the language of the Due Process Clause 

 itself requires the State to protect the life, liberty, and 

 property of its citizens against invasion by private 

 actors . . . . It forbids the State itself to deprive 

 individuals of life, liberty or property without"due 

 process of law," but its language cannot fairly be 

 extended to impose an affirmative obligation on the 

 State to ensure that those interests do not come to 

 harm through other means. 

Id. at 195. While the Court recognized that there are 

situations in which the state assumes affirmative duties to 

protect from harm, it concluded that the state had assumed 

no responsibility to protect Joshua, the victim of the abuse. 

As the Court noted: "While the State may have been aware 

of the dangers that Joshua faced in the free world, it played 

no part in their creation, nor did it do anything to render 

him any more vulnerable to them." Id. at 201. 

Although the last quoted language effectively ended the 

plaintiff ’s case in DeShaney, this and other courts have 

read this passage to indicate that a constitutional violation 

may occur when the state acts in a way that makes a 

person substantially more vulnerable to injury from another 

source than he or she would have been in the absence of 

the state intervention. See Kneipp v. Tedder, 95 F.3d 1199, 

1205 (3d Cir. 1996) (citing cases); Mark v. Borough of 

Hatboro, 51 F.3d 1137, 1151-52 (3d Cir. 1995) (citing 

cases). Indeed, we have held that a plaintiff may recover on 

a "state-created danger theory" under the Due Process 

Clause upon a showing that: 

 (1) the harm ultimately caused was foreseeable and 

 fairly direct; (2) the state actor acted in willful 

 12 

 
 disregard for the safety of the plaintiff; (3) there existed 

 some relationship between the state and the plaintiff; 

 [and] (4) the state actors used their authority to create 

 an opportunity that otherwise would not have existed 

 for the third party’s crime to occur. 

Kneipp, 95 F.3d at 1208 (quoting Mark , 51 F.3d at 1152). 

As the District Court correctly perceived, our summary of 

the law regarding state created dangers in Kneipp needs to 

be updated to reflect the Supreme Court’s subsequent 

decision in County of Sacramento v. Lewis, 523 U.S. 833 

(1998). In Lewis, the Supreme Court granted certiorari "to 

resolve a conflict among the Circuits over the standard of 

culpability on the part of a law enforcement officer for 

violating substantive due process in a pursuit case." 523 

U.S. at 839. In considering the appropriate substantive due 

process standard, the Court emphasized that " ‘the 

touchstone of due process is protection of the individual 

against arbitrary action of the government.’ " Id. at 845 

(quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). The 

Court cautioned, however, that its "cases dealing with . . . 

executive action have repeatedly emphasized that only the 

most egregious official conduct can be said to be arbitrary 

in the constitutional sense." Id. at 846 (quotation omitted). 

The Court accordingly concluded that to prove a violation of 

substantive due process in cases involving executive action, 

the plaintiff must show that the state acted in a manner 

that "shocks the conscience." Id. As we summarized in 

Miller: "To generate liability, executive action must be so illconceived or malicious that it ‘shocks the conscience.’ " 174 

F.3d at 375 (quoting Lewis, 523 U.S. at 846). 

Since Lewis, we have had occasion to apply this 

substantive due process standard in a number of different 

settings and we must, of course, apply it here. See Ziccardi 

v. City of Philadelphia, 288 F.3d 57, 58 (3d Cir. 2002) 

(applying "shocks the conscience" test to claim against 

paramedics whose handling of plaintiff following a fall 

allegedly caused his quadriplegia); Nicini v. Morra, 212 F.3d 

798, 800 (3d Cir. 2000) (en banc) (applying the"shocks the 

conscience" test to the substantive due process claims of a 

plaintiff who had been abused by a member of a family with 

whom he had been placed for foster care); Miller, 174 F.3d 

 13 

 

at 370 (applying the "shocks the conscience" test to the 

claim of a mother and her children for an alleged violation 

based on "an emergency ex parte child custody hearing" 

after which the City defendants removed two of Miller’s 

children from her custody). 

Whether executive action is conscience shocking and 

thus "arbitrary in the constitutional sense" depends on the 

context in which the action takes place. In particular, the 

degree of culpability required to meet the "shock the 

conscience" standard depends upon the particular 

circumstances that confront those acting on the state’s 
behalf. As the Court explained in Lewis: 

 We have . . . rejected the lowest common denominator 

 of customary tort liability as any mark of sufficiently 

 shocking conduct, and have held that the Constitution 

 does not guarantee due care on the part of state 

 officials; liability for negligently inflicted harm is 

 categorically beneath the threshold of constitutional 

 due process. . . . It is, on the contrary, behavior at the 

 other end of the culpability spectrum that would most 

 probably support a substantive due process claim; 

 conduct intended to injure in some way unjustifiable 

 by any government interest is the sort of official action 

 most likely to rise to the conscience-shocking level. . . . 

 Whether the point of the conscience shocking is 

 reached when injuries are produced with culpability 

 falling within the middle range, following from 

 something more than negligence but less than 

 intentional conduct, such as recklessness or gross 

 negligence . . . is a matter for closer calls. 

* * * 

 Deliberate indifference that shocks in one environment 

 may not be so patently egregious in another, and our 

 concern with preserving the constitutional proportions 

 of substantive due process demands an exact analysis 

 of circumstances before any abuse of power is 

 condemned as conscience shocking. 

523 U.S. at 848-49, 850 (quotation omitted). Accordingly, 

with the guidance of Lewis and its progeny, I will undertake 

 14 

 

the required "exact analysis of [the] circumstances" facing 

Officers Woods and Scherff on the morning of May 7, 1998. 

IV. 

The Lewis Court ultimately held "that high-speed chases 

with no intent to harm suspects physically or to worsen 

their legal plight do not give rise to liability under the 

Fourteenth Amendment." Id. at 854. The analysis it 

followed in reaching this conclusion compared the 

circumstances of officers in high-speed chases, prison 

doctors in providing health care, and prison managers in 

dealing with riots. In the course of that comparison, the 

Court identifies the kinds of factors that should be 

considered in deciding whether and when executive action 

shocks the conscience. The Court began by pointing out 

that prison doctors face liability if they are deliberately 

indifferent to the serious medical needs of their prisoners. 

It noted that the "deliberate indifference" standard "is 

sensibly employed only when actual deliberation is 

practical, . . . and [that] in the custodial situation of a 

prison, forethought about an inmate’s welfare is not only 

feasible but obligatory under a regime that incapacitates a 
prisoner to exercise ordinary responsibility for his own 

welfare." Id. at 851 (citing Whitley v. Albert, 475 U.S. 312, 

320 (1986)). Moreover, the Court stressed that no 

"substantial countervailing interest[s] excuse the State from 

making provision for the decent care and protection of 

those it locks up." Id. Thus, "the State’s responsibility to 

attend to the medical needs of prisoners [or detainees] does 

not ordinarily clash with other equally important 

governmental responsibilities." Id. at 851-52 (quoting 

Whitley, 475 U.S. at 320) (alteration in original). 

By contrast, in the prison riot setting, liability turns on 

" ‘whether force was applied in a good faith effort to 

maintain or restore discipline or maliciously and 

sadistically for the very purpose of causing harm.’ " Id. at 

853 (quoting Whitley, 475 U.S. at 320-21)). In such 

circumstances, "prison officials undoubtedly must take into 

account the very real threats the unrest presents to 

inmates and prison officials alike, in addition to the 

possible harms to inmates against whom force might be 

 15 

 

used. . . . In this setting, a deliberate indifference standard 

does not adequately capture the importance of such 

competing obligations, or convey the appropriate hesitancy 

to critique in hindsight decisions necessarily made in haste, 

under pressure, and frequently without the luxury of a 

second chance." Id. at 852 (quoting Whitley, 475 U.S. at 

320) (alteration in original). 

The Supreme Court found the circumstance of an officer 

in a high-speed chase much closer to that of the prison 

managers required to deal with a riot: 

 Like prison officials facing a riot, the police on an 

 occasion calling for fast action have obligations that 

 tend to tug against each other. Their duty is to restore 

 and maintain lawful order, while not exacerbating 

 disorder more than necessary to do their jobs. They are 

 supposed to act decisively and to show restraint at the 

 same moment, and their decisions have to be made"in 

 haste, under pressure, and frequently without the 

 luxury of a second chance." Id., at 320; cf. Graham v. 

 Connor, 490 U.S., at 397 ("[P]olice officers are often 

 forced to make split-second judgments -- in 

 circumstances that are tense, uncertain, and rapidly 

 evolving[.]"). A police officer deciding whether to give 

 chase must balance on one hand the need to stop a 

 suspect and show that flight from the law is no way to 

 freedom, and, on the other, the high-speed threat to all 

 those within stopping range, be they suspects, their 

 passengers, other drivers, or bystanders. 

 To recognize a substantive due process violation in 

 these circumstances when only midlevel fault has been 

 shown would be to forget that liability for deliberate 

 indifference to inmate welfare rests upon the luxury 

 enjoyed by prison officials of having time to make 
 unhurried judgments, upon the chance for repeated 

 reflection, largely uncomplicated by the pulls of 

 competing obligations. When such extended 

 opportunities to do better are teamed with protracted 

 failure even to care, indifference is truly shocking. But 

 when unforeseen circumstances demand an officer’s 

 instant judgment, even precipitate recklessness fails to 

 inch close enough to harmful purpose to spark the 

 16 

 

 shock that implicates "the large concerns of the 

 governors and the governed." 

Lewis, 523 U.S. at 853. 

There are several lessons from Lewis that are relevant 

here. The first, of course, is that negligence is not enough 

to shock the conscience under any circumstances. The 

second is that more culpability is required to shock the 

conscience to the extent that state actors are required to 

act promptly and under pressure. Moreover, the same is 

true to the extent the responsibilities of the state actors 

require a judgment between competing, legitimate interests. 

With these lessons in mind, I turn to the circumstances of 

this case. 

Officers Woods and Scherff arrived promptly at 251 S. 

23rd Street in the early morning hours of May 7, 1998, in 

response to advice that a man had reported hearing a 

woman scream. They conducted an investigation that 

included speaking with each of the available witnesses, 

ascertaining that there were no signs of forced entry, and 

establishing that no response could be secured from within 

Ms. Schieber’s apartment. The occupants of the apartments 

immediately above and below Schieber’s heard no scream, 

and another inhabitant of the first floor of the building 

heard none. The neighbor who had made the 911 call 

believed that there had been a scream and that it had come 

from Schieber’s apartment, but he was the only one who 

had heard a scream and he exhibited uncertainty about its 

source. 

The information revealed by the officers’ investigation was 

consistent with three situations: (1) Greeley was mistaken 

about the scream or its source and Schieber was not home; 

(2) Greeley was mistaken about the scream or its source 

and Schieber was at home and did not wish to be 

disturbed; or (3) Greeley was right, and Schieber was at 

home and the victim of violence. Given the absence of any 

sign of forced entry and the fact that no other neighbors 

heard the scream, in the absence of Greeley’s report, the 

first two possibilities were infinitely more likely than the 

third. Accordingly, a decision about which of these 

possibilities was the more likely depended on an evaluation 

of the accuracy of Greeley’s perception. 

 17 

 
The circumstances confronting Woods and Scherff were 

such that it was unlikely that additional relevant 

information would become available to them soon and, if 

Greeley were correct, any action to render meaningful aid to 

Schieber would have to be taken without delay in order to 

have any chance of accomplishing its objective. Accordingly, 

a quick, on-the-spot decision was required on whether to 

forcibly open Schieber’s door, and that decision had to be 

made on the basis of the limited information then available. 

Most importantly, the decision on forcible entry of 

Schieber’s home involved important competing interests. 

There was some possibility that Schieber’s constitutionally 

protected interest in personal security was in jeopardy, but 

it was certain that forcible entry would infringe on her 

constitutionally protected interest in privacy. 

While it is true that Woods and Scherff were not required 

to exercise an instantaneous judgment, like an officer in a 

chase situation, this was nevertheless far from the situation 

of prison doctors where "extended opportunities to do better 

[may be] teamed with protracted failure even to care." 

Lewis, 523 U.S. at 853. Woods and Scherff were required to 

make a decision without delay and under the pressure that 

comes from knowing that the decision must be made on 

necessarily limited information. The required judgment 

involved the weighing of the important competing interests 

of personal security and privacy. This, in turn, required an 

assessment of the likelihood of Schieber’s being in jeopardy, 

which in turn required an evaluation of the reliability of 

Greeley’s report. The officers made the required judgment, 

and their discourse with the neighbors vouches that their 

focus was on the relevant considerations -- the reliability of 

Greeley’s account and the impact of forced entry on 

Schieber’s privacy interests. Nothing in the record would 

support an inference that the officers were influenced in 

any way by self-interest or any other inappropriate 

consideration. In short, Woods and Scherff made a good 

faith judgment required by their official responsibilities.3 

_________________________________________________________________ 

3. Pointing to isolated segments of the interviews given by Officers Woods 

and Scherff, the next day, Schieber’s parents suggest that the officers 

refused to enter "not because [Greeley] was uncertain with respect to the 

 18 

 

It may well be that these circumstances, like those in 

Lewis, call for something more than a finding of"mid-level 

fault" as a predicate for a conclusion that the officers’ 

conduct shocks the conscience. Certainly this situation is 

much closer to that presented by Lewis than to that of a 

prison physician deciding whether to treat a serious 

medical need. Moreover, if intent to harm is the necessary 

predicate here, clearly no reasonable jury could find that 

Woods or Scherff possessed that state of mind. Judge 

Nygaard and I find it unnecessary to hold that an intent to 

harm is required here, however, because we believe it 
equally clear that the current record will not support a 

finding of deliberate indifference to Schieber’s rights and 

that, accordingly, the conduct of Officers Woods and 

Scherff cannot be found to shock the conscience. 

The deliberate indifference prison standard spoken of in 

Lewis is equivalent to the concept of recklessness utilized 

in the criminal law. Farmer v. Brennan, 511 U.S. 825, 837 

(1994). It requires that the prison doctor or custodian have 

an actual, subjective appreciation of an excessive risk of 

serious harm to inmate health or safety and that he or she 

"consciously disregard" that risk. Id. at 839 (quoting Model 

Penal Code S 202(2)(c)).4 While Officers Woods and Scherff 

_________________________________________________________________ 

source of the screams . . . , but because they had decided in advance 

that they would not enter unless they personally heard a call for help or 

had the approval of a supervisor." Appellees’ Br. at 10-11. The record 

would not support such a finding. Scherff did state that he would not 

have taken down the door unless he himself heard a cry for help from 

inside Schieber’s apartment, but he made this statement after, and in 

the context of, his explanation that there were no signs of forced entry, 

no one other than Greeley had heard a scream, and Greeley was 

uncertain about the source of the scream he believed he had heard. It is 

clear from their statements and depositions that both officers understood 

that the police are authorized to make a forced entry in order to prevent 

death or physical injury and that they would have done so in this 

instance had they believed that Schieber was a victim of violence. The 

fact that Woods may have sought the counsel of a supervisor before 

taking down the door hardly supports a conclusion that he acted with 

deliberate indifference. 

4. In another context, the Supreme Court has suggested that an official’s 

deliberate indifference may exist in the absence of subjective 

 19 

 

appreciated the possibility that Schieber was a victim of 

violence, they cannot be said to have consciously 

disregarded that risk. To the contrary, they arrived 

promptly, conducted an appropriate investigation, and 

made a conscious judgment which took that risk into 

account. While one can argue with the benefit of hindsight 

that these officers exercised poor judgment and were thus 

guilty of negligence, a reasonable trier of fact could not find 

that they were deliberately indifferent to Schieber’s 

constitutional rights.5 

Moreover, even accepting, as we do, that Woods and 

Scherff advised the neighbors to do nothing but call 911 if 

they heard further noise, this does not alter our conclusion 

that their conduct could not be found to be shocking to the 

conscience. Having concluded that there was an insufficient 

basis to warrant a peace officer in making a forced entry, it 

necessarily followed that the officers believed there was an 

insufficient basis for private forced entry and that Greeley 

had done the right thing in calling 911 and allowing the 

police to make a judgment. If, as Schieber’s parents 

maintain, the officers’ advice caused the neighbors to 
refrain from forcing the door following the officers’ 

departure, that advice can hardly be said to shock the 

conscience under the circumstances reflected in the 

undisputed evidence in this record. Accordingly, Judge 

Nygaard and I conclude that there was no due process 

violation. 

Our decisions in Miller and Ziccardi are supportive of this 

conclusion. In Miller, we evaluated the actions of a social 

worker who, after receiving allegations of abuse, took steps 

to separate a child from her natural parent. In that 

_________________________________________________________________ 

appreciation when the excessive risk of harm is so obvious that it should 

be known. See Farmer, 511 U.S. at 840-41 (discussing Canton v. Harris, 

489 U.S. 378 (1989) and the civil tort concept of recklessness). Here 

there is no dispute that the officers had a subjective awareness of the 

possibility that Schieber may have been a victim of violence. 

5. It may well be, as the dissent suggests, that it would have been better 

investigative technique to ask more "open ended questions" of Greeley. If 

so, that fact might support a finding of negligence on the part of the 

officers. It would not, however, support a finding that they were 

deliberately indifferent to Schieber’s welfare. 

 20 

 

situation, like the present one, the state actor was required 

to make a judgment between conflicting interests-- those 

of the parent in the child and those of the state in the 

child’s welfare -- and to evaluate the impact of the state’s 

intervention on those interests. Moreover, while the Court 

recognized "that a social worker acting to separate parent 

and child does not usually act in the hyper-pressurized 

environment of a prison riot or a high-speed chase," it 

observed that "he or she rarely will have the luxury of 

proceeding in a deliberate fashion, as prison medical 

officials can." 174 F.3d at 375. We ultimately concluded 

that "in order for liability to attach, a social worker need 

not have acted with the ‘purpose to cause harm,’ but the 

standard of culpability . . . must exceed both negligence 

and deliberate indifference." Id. We held that this degree of 

culpability was not present. 

In Ziccardi, we found that the applicable standard of 

culpability for paramedics seeking to aid an accident victim 

was the same as that for the social worker in Miller, and we 

elaborated on the concept of a degree of culpability greater 

than subjective deliberate indifference though less than 

subjective intent to harm. In that case, two paramedics 

responded to a neighbor’s 911 call reporting that a man 

was in distress after having fallen from an eight foot wall to 

the sidewalk below. Instead of immobilizing the plaintiff ’s 

cervical spine before moving him, the paramedics lifted him 

by his arms and then by his shoulders and legs, allegedly 

causing quadriplegia. As in Miller, we noted the difference 

between the responsibilities of a paramedic and those of a 

physician treating institutionalized patients: 
 Miller’s reason for holding that more than deliberate 

 indifference had to be shown -- the social worker’s 

 need to act without "the luxury of proceeding in a 

 deliberate fashion," id. at 375 -- seems equally 

 applicable here. While the record in the present case 

 does not suggest that the appellants had any particular 

 need to move Smith quickly -- for example, he was not 

 in a dangerous location and did not appear to have any 

 other medical problems requiring prompt movement-- 

 the social worker in Miller similarly does not appear to 

 have had a need to make a split-second decision. What 

 21 

 

 the Miller court seems to have had in mind was the 

 need for the social worker to act in a matter of hours 

 or minutes. Nevertheless, the Miller court held that the 

 nature of the situation faced by the social worker 

 mandated proof of something more than subjective 

 deliberate indifference, and this holding seems to 

 require the application of a similar standard here. 

Ziccardi, 288 F.3d at 65. 

We then went on to more clearly articulate this standard 

of culpability. 

 Miller thus appears to have demanded proof of 

 something less than knowledge that the harm was 

 practically certain but more than knowledge that there 

 was a substantial risk that the harm would occur. A 

 simple way of putting this is that Miller mandated proof 

 that the defendant was aware of more than a 

 substantial risk -- let us say a great risk -- that there 

 was no good cause for the removal of the children. 

* * * 

 In summary, then, we understand Miller to require in 

 a case such as the one before us, proof that the 

 defendants consciously disregarded, not just a 

 substantial risk, but a great risk that serious harm 

 would result if, knowing Smith was seriously injured, 

 they moved Smith without support for his back and 

 neck. 

Ziccardi, 288 F.3d at 66. 

I believe that a comparison of the situation confronting 

Officers Woods and Scherff with those confronting the 

social worker in Miller and the paramedics in Ziccardi 

suggests that liability could exist here only if Woods and 

Scherff subjectively appreciated and consciously ignored a 

great, i.e., more than substantial, risk that the failure to 

break down Schieber’s door would result in significant 

harm to her. Clearly, the record would not support such a 

finding. Nevertheless, just as I have found it unnecessary to 

determine whether the Lewis "intent to harm" standard is 

applicable, I also find it unnecessary to adopt the 
Miller/Ziccardi standard. Because the record would not 

 22 

 

support a finding of more than negligence on the part of 

Woods and Scherff, the result we reach follows a fortiori 

from that reached in Miller and Ziccardi . 

Because I conclude that the record will not support a 

conclusion that the officers’ conduct shocks the conscience, 

I do not reach the issue of whether they used their state 

authority to render Schieber more vulnerable to private 

violence. Moreover, because I conclude that no 

constitutional violation occurred, I need not reach the 

qualified immunity issue.6 

V. 

The order of the District Court entered May 9, 2001, will 

be reversed and this matter will be remanded with 

instructions to enter summary judgment in favor of Officers 

Woods and Scherff. 

_________________________________________________________________ 

6. I also express no view on whether the Schiebers, as parents, had a 

liberty interest in the continued companionship of their adult, 

emancipated child. Compare Trujilo v. Bd. of Cty. Comm’rs, 768 F.2d 

1186 (10th Cir. 1985); Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 

1984), with Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001); 

Ortiz v. Burgos, 807 F.2d 6 (1st Cir. 1986). Nor do I express an opinion 

as to whether we have jurisdiction to consider that issue in an appeal 

from a denial of a claim of qualified immunity. 

 23 

 

NYGAARD, Circuit Judge, Concurring: 

I agree with much of what Judge Stapleton has written in 

his excellent opinion, and concur in its judgment. I write 

separately, however, first because I take a different view of 

the Supreme Court’s decision in Johnson v. Jones, 515 U.S. 

304 (1995), and second to more fully explain my view of the 

test for affirmative acts under the "state-created danger" 

exception contained in DeShaney v. Winnebago County 

Department of Social Services, 489 U.S. 189, 195 (1989). 

Judge Stapleton’s opinion interprets Johnson v. Jones to 

require that we accept the facts found by the District Court. 

With this, I fully agree. Having said that, I would not base 

our analysis upon a statement made by the District Court, 

in its discussion of the issues, that the police instructed 

Ms. Schieber’s neighbors "to do nothing but call 911" if 

they heard additional noise. See Opinion at p.11. The 

problem is that this is not one of the facts specifically found 

by the District Court. Instead, in the "Facts" section of its 

opinion, the District Court found: 

 Neighbors, having been assured by the officers that 
 Schieber was not home and told by the officers to call 

 911 again if they heard any other noises from the 

 apartment, took no further action. 

Schieber v. City of Phila., 156 F. Supp. 2d 451, 455 (E.D. 

Pa. 2001). It is only in the "Discussion" portion of the 

District Court’s opinion that it suggests, without factfinding to support it, that the officers decided to"instruct 

the neighbors to do nothing but call 911 if they heard 

additional noise." Id. at 460. 

The Supreme Court instructed us in Johnson v. Jones to 

"take, as given, the facts that the district court assumed 

when it denied summary judgment." 515 U.S. at 319. 

When, as here, the "Facts" found by the District Court are 

inconsistent with a statement it makes in its "Discussion," 

I would base my analysis on the facts specifically found by 

the District Court. 

When the District Court has not explicitly stated its facts, 

the Supreme Court instructs that we "may have to 

undertake a cumbersome review of the record to determine 

 24 

 

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

the nonmoving party, likely assumed." Id. Out of caution I 

reviewed the record and I found no evidence to support a 

statement that the officers told Ms. Schieber’s neighbors "to 

do nothing but call 911" if they heard additional noise. 

Indeed, Judge Stapleton and I agree that there was no 

testimony that the officers ever made such a statement. See 

Opinion at n.2. Even the Schiebers themselves never 

attempted to support this allegation in their briefs or at oral 

argument. This further supports my reasoning that the 

relevant facts are those set out in the "Facts" portion of the 

District Court’s opinion. Consequently, my analysis follows 

a different path than does Judge Stapleton’s, although we 

both reach the same result. 

It is well established under DeShaney that the state has 

no constitutional obligation to protect its citizens from each 

other. Because there is no constitutional requirement that 

the State provide protective or rescue services,"it follows 

that the State cannot be held liable under the Clause for 

injuries that could have been averted had it chosen to 

provide them." DeShaney, 489 U.S. at 196-97. Thus, our 

baseline for analysis is that the officers in this case cannot 

be held liable simply for failing to break down Ms. 

Schieber’s door. 

Recognizing as much, the Schiebers have attempted to fit 

their claim within a narrow exception to the DeShaney rule 

known as the "state-created danger" exception. That 

exception only applies when the state has created a harm 

or renders someone more vulnerable to an existing harm. 

Id. at 201. Courts have found under this exception that the 

state may incur an affirmative duty to rescue if it deprives 

someone of private sources of rescue. See, e.g. , Ross v. 
United States, 910 F.2d 1422 (7th Cir. 1990) (finding a 

constitutional claim was stated where a deputy ordered 

civilian scuba divers to cease their rescue of a drowning 

boy, blocked them with his boat, and threatened to arrest 

them). 

Judge Stapleton’s opinion applies the four-part statecreated danger test we enunciated in Kneipp v. Tedder, 95 

F.3d 1199 (3d Cir. 1996). I do not disagree with its analysis 

as far as it goes. Nonetheless, in my view the test for 

 25 

 

liability must start with D.R. v. Middle Bucks Area 

Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992) 

(en banc), in which we emphasized that the state must have 

committed an affirmative act before it can be held 

constitutionally liable under the state-created danger 

exception. Sitting en banc in D.R., we noted that the genesis 

of the exception was the Supreme Court’s language in 

DeShaney that "[w]hile the State may have been aware of 

the dangers that Joshua faced in the free world, it played 

no part in their creation, nor did it do anything to render 

him any more vulnerable to them." Id. at 1373 (quoting 

DeShaney, 489 U.S. at 201). We went on to consider the 

development of the exception and observed that "[p]ostDeShaney courts have tracked the quoted Supreme Court’s 

language by asking whether the state actors involved 

affirmatively acted to create plaintiff ’s danger, or to render 

him or her more vulnerable to it." Id . (emphasis added). 

Finally, we concluded that "[l]iability under the statecreated danger theory is predicated upon the states’ 

affirmative acts which work to plaintiffs’ detriments in 

terms of exposure to danger." Id. at 1374 (emphasis added). 

Hence, the State can be liable only when it has committed 

an affirmative act, without which, we do not reach the 

Kneipp test. Because the District Court made no factual 

finding that there was an affirmative act by the State, i.e., 

the officers simply told neighbors to "call 911," I would 

conclude that there can be no liability. 

Finally, while there are thus significant differences in my 

analysis, I am in full agreement with Judge Stapleton that, 

assuming the officers had directed the neighbors"to do 

nothing but call 911," their conduct still did not rise to the 

level necessary to establish a state-created danger claim 

under Kneipp. 

For these reasons, I concur. 

 26 

 

SLEET, District Judge, Dissenting: 

This case is on review at the summary judgment stage of 

these proceedings because the District Court rejected the 

appellants’ contention that the shield of qualified immunity 

protects them from liability for the appellees’ claimed 
injuries. In his opinion, Judge Stapleton states that, at this 

interlocutory stage of these proceedings, we must accept 

the "District Court’s determination that there is sufficient 

record evidence to support a set of facts under which there 

would be no immunity." See Johnson v. Jones , 515 U.S. 

304, 313 (1995). Thus, he states that we "must accept the 

District Court’s finding of sufficient evidence to support a 

finding that a police instruction to do nothing but call 911 

stopped the neighbors from effecting rescue themselves."1 

(emphasis in the original). As such, it appears that Judge 

Stapleton reads Johnson to require that an appeals court 

limit its review of the pretrial record to those instances 

where the court is unable to determine from the trial 

court’s ruling the facts it relied upon when it denied 

summary judgment. In other words, he seems to read 

Johnson to direct the effort of the court of appeals to 

whether it can discern from the trial court’s ruling the facts 

it likely assumed, rather than whether that court’s factual 

assumptions are set forth explicitly in its opinion. In the 

case before us, Judge Stapleton believed that he was able 

to determine those facts from the body of the District 

Court’s opinion. Thus, he found no need to look beyond the 

four corners of that opinion. 

In his concurrence, Judge Nygaard agrees that "we must 

accept the facts found by the District Court." He seems also 

to agree with Judge Stapleton’s conclusion that the 

appellate court’s review of the pretrial record is limited to 

those instances noted above. Judge Nygaard does not 

appear to agree, however, that the District Court’s opinion 

in the matter before us adequately reveals the set of facts 

it assumed in rendering its immunity decision. Specifically, 

Judge Nygaard states that "[w]hen, as here, the ‘Facts’ 

_________________________________________________________________ 

1. Judge Stapleton notes that "the District Court found that the record 

as a whole supported the finding that the message conveyed by the 

officers was to do nothing but call 911." 

 27 

 

found by the District Court are inconsistent with a 

statement it makes in its ‘Discussion,’ I would base my 

analysis on the facts specifically found by the District 

Court." Thus, it appears there is a difference in view as to 

what the Court meant in Johnson when discussing an 

appellate court’s determination of the set of facts the 

District Court assumed in ruling on a purely legal question 

presented by an assertion of qualified immunity. In other 

words, Judge Nygaard seems to differ with Judge Stapleton 

as to where we should look and how we should determine 

the facts assumed by the trial court in rendering its 

decision. 

In his concurrence, Judge Nygaard states that "out of 

caution," he reviewed the pretrial record before us. It would 

seem that the need for caution here was prompted by the 

District Court’s failure to set forth in explicit terms, either 

in the facts or background section of its opinion or in a 
manner clearly identifying it as such, the specific finding of 

fact that the officers gave the 911 instruction. Whether or 

not that was the catalyst, after his review of the record, 

Judge Nygaard found no support for the District Court’s 

finding of fact that the officers told the neighbors"to do 

nothing but call 911." (emphasis in the original). 

Nevertheless, he agreed, albeit for different reasons, with 

Judge Stapleton’s conclusion. 

I am unable to agree with my colleagues’ restrictive 

reading of Johnson. I too have reviewed the record, and in 

so doing, have concluded that there is a genuine issue as 

to whether the conduct of the officers violated clearly 

established law. I, therefore, respectfully dissent. 

We exercise jurisdiction over this matter because, 

presumably, the question presented is purely legal, and not 

"whether or not [the] record demonstrates a‘genuine issue 

of fact for trial.’ " Johnson 515 U.S. at 316. In Johnson, the 

Court wrestled with the challenge of separating reviewable 

immunity determinations of the District Court from those 

that are not. The Court discussed and analyzed the 

"competing considerations," the wise use of appellate 

resources among them, involved in the question of limiting 

" ‘qualified immunity’ matters to cases presenting more 

abstract issues of law." Id. at 317. Among other reasons to 

 28 

 

limit review of the pretrial record in immunity questions, 

the Court felt that it would be an unwise use of the 

resources of appellate courts to examine "questions about 

whether or not a record demonstrates" the presence of a 

triable issue because such questions "can consume 

inordinate amounts of appellate time." Id. at 316. Thus, the 

Court stated, "When faced with an argument that the 

District Court mistakenly identified clearly established law, 

the court of appeals can simply take, as given, the facts 

that the District Court assumed when it denied summary 

judgment for that (purely legal) reason." Id. at 319 

(emphasis added). 

Contrary to the view expressed by my colleagues, I 

believe the language used by the Court does not require 

acceptance of the facts assumed. It simply suggests that 

when the trial court sets forth its factual findings, courts of 

appeal need not "undertake a cumbersome review of the 

record to determine what facts the District Court . . . likely 

assumed." Id. at 319. Conversely, the Court recognized that 

when the trial court fails to articulate the factual 

underpinning for its summary judgment ruling on a legal 

question, the court of appeals may have to engage in such 

a review. Clearly, in order to enable courts of appeal to 

operate more efficiently, and for the other reasons stated in 

its opinion in Johnson, the Court would prefer that trial 

courts say something in this regard. The Court did not say, 

however, that it intended to restrict the ability of our circuit 

courts to review a record only to these instances. In other 

words, Johnson should not be read to stand for the 
proposition that, even though the District Court’s specific 

factual findings do not support its legal conclusions, when 

there is, in fact, support in the record for those 

conclusions, those facts should be ignored. If that is what 

Johnson means, circuit courts will be confined to the four 

corners of whatever the trial court says are the facts, and 

the legal conclusions based thereon -- no matter how 

incorrect. This cannot be the result intended by the Court. 

Nor do I believe that my reading of Johnson offers what 

might be viewed as a loophole through which appellate 

courts can circumvent the limited constraints the Court 

has placed upon their ability to review immunity 

determinations by District Courts. 

 29 

 

Keeping the applicable summary judgment principles as 

well as the teachings of Johnson v. Jones in mind, I believe 

that the only conclusion the present pretrial record 

supports is that there is a genuine issue for trial on the 

question of whether the conduct of the officers in this case 

shocks the conscience. 

At his deposition Greeley testified as follows: 

 Q. And after Officer[s] Scherff and Woods left your 

 building and while you were up watching The 

 Terminator, you didn’t hear any sounds coming from 

 Miss Schieber’s apartment, correct? 

 A. Correct. 

 Q. And the reason why you didn’t take any affirmative 

 steps to take the door down was because you didn’t 

 hear any sounds coming from Miss Schieber’s door, is 

 that true -- I’m sorry, Miss Schieber’s apartment? 

 A. Any further sounds after they had left? 

 Q. Yes. 

 A. Correct. 

 Q. So let me just ask it clearer, is the reason that you 

 didn’t take down Miss Schieber’s door after the officers 

 left while you were still awake was because you didn’t 

 hear any sounds coming from Miss Schieber’s 

 apartment? 

 A. Not entirely. 

 Q. Was it one of the reasons? 

 A. I mean it’s hard for me to predict what -- if I hear 

 anymore noise what I would have done. That’s sort of 

 -- but as far as I was concerned, once the police left, 

 I was -- it was in their hands to break down the door 

 because that’s what they’re trained to do. I don’t look 

 at it as my -- I’m not trained to do so and I wasn’t. 
 Q. But had you heard some sounds, you would have 

 taken some affirmative actions? 

 A. Probably, yes. 

 30 

 

App. at 86. 

Further, Greeley testified that, before the police arrived, 

he had considered knocking down the door. However, when 

asked what prevented him from doing so, he responded 

that "I’d be endangering Leah [Greeley’s companion] 

possibly, I’d be endangering myself . . . . I’m not trained to 

be breaking down people’s doors . . . ." App. at 71. The 

record also reveals that, prior to the arrival of the officers, 

Greeley went downstairs to Reed’s apartment to seek 

assistance from an individual named Hooman. At the time, 

according to Greeley’s testimony, he was considering 

breaking down Ms. Schieber’s door. Unfortunately, Hooman 

was not there. 

Given this record, the question of the impact of the 911 

instruction on the neighbors, and whether it prevented Ms. 

Schieber’s private rescue is one best left for a jury. That is, 

even if the specific instruction to do nothing but call 911 

was not given by the officers, a jury should be permitted to 

determine whether "the record as a whole support[s] the 

finding that the message conveyed by the officers was to do 

nothing but call 911." 

These, however, are not the only material facts developed 

in the pretrial record that are relevant to the question of the 

propriety of the officers’ conduct, and whether that conduct 

is actionable. This presents two problems. First, Judge 

Stapleton’s analysis of the officers’ actions during their 

investigation does not go far enough. Put differently, and 

perhaps more accurately, the focus of the analysis is 

unduly narrow. Second, Judge Stapleton finds that a trier 

of fact could not properly conclude that the officers were 

deliberately indifferent to Ms. Schieber’s constitutional 

rights because they "conducted an appropriate 

investigation." I do not agree that the record evidence 

supports this conclusion. More fundamentally, I cannot 

agree that, given the record in this case, this is a 

conclusion that is within the competence of this court to 

make at this time. I will discuss each of these points in 

turn. 

Judge Stapleton’s opinion focuses its attention almost 

exclusively on the District Court’s finding that the officers 

 31 

 

instructed Greeley and the other neighbors who were 

present that, should they hear anything else, they were to 

do nothing themselves, and instead, call 911 for police 
assistance. If that is all the officers did during their 

investigation, a stronger argument could certainly be made 

that, as a matter of law, this action does not demonstrate 

the type of deliberate indifference that, under the 

circumstances, shocks the conscience. It is not, however, 

all that was done. 

Amy Reed was one of the neighbors at the scene when 

Woods and Scherff arrived. Reed provided the following 

testimony: 

 Q. Was there a conversation that you observed that 

 took place between Mr. Greeley and the police after the 

 police stopped knocking? 

 A. I did hear a conversation between them. 

 Q. Do you recall, sitting here today, what the 

 conversation consisted of ? 

 A. I remember as they were -- or let me step back. I 

 remember them -- they had suggested some alternative 

 possibilities for what he might have heard. 

 Q. Do you recall what alternative possibilities the 

 police may have suggested? 

 A. They suggested that since it was 2 o’clock or 

 thereabouts, that maybe people coming out of a bar, 

 the noise had reached his apartment or perhaps he 

 heard noises bouncing off of nearby buildings or walls 

 in his apartment. 

 Q. Did Mr. Greeley respond in anyway? 

 A. Yes. He did not look favorably upon those 

 explanations. 

 Q. But did he respond to them? 

 A. When they asked him, "Perhaps you heard people 

 on the street", (sic) he said something like,"No, I don’t 

 think so, no." 

 32 

 

 Q. In your presence, did he ever express uncertainty 

 as to where he believed the noises were coming from 

 inside the -- noises were coming from? 

 A. He was quite certain what he had heard, who he 

 had heard and where it had come from when he woke 

 me up. He relayed that to the police. . . .2 

App. at 31-32. 

There is expert testimony in the record that establishes 

that when conducting an investigation of this type, police 

officers should ask open ended questions of witnesses 
rather than making suggestions of the type reflected in the 

exchange described by Reed. Judge Stapleton’s opinion 

does not seem to consider the effect of this conduct on this 

investigation, other than its impact on the behavior of the 

private citizens at the scene. In my view, this renders his 

analysis critically flawed. 

I believe this to be so for the following reasons. The result 

of what the appellees characterize as the officers’"crossexamination" of Greeley was that he appeared to be 

"uncertain" about the source of the noises he’d heard that 

morning. The appellees contend that the result of the use 

of this arguably improper investigative technique, along 

with the officers’ refusal to enter the apartment, was to 

"cause any private citizen to believe that he too was barred 

from making such entry." Appellees Brief at 28-29. This 

argument sums up the difficulty I have with Judge 

Stapleton’s analysis of the facts. If Greeley was in fact 

uncertain, this uncertainty may have resulted from 

improper questioning by the officers. Thus, while Judge 

Stapleton focuses his attention upon the impact of the "911 

instruction" on the neighbors, the record evidence, e.g., 

Reed’s testimony as well as expert opinion, establishes that 

there is a need for a broader inquiry. 

_________________________________________________________________ 

2. Judge Stapleton writes that when the officers arrived and Greeley 

reported the source of the scream, "he exhibited uncertainty about its 

source." Reed’s testimony alone would seem to put this fact squarely at 

issue. Thus, I believe the District Court’s conclusion that Greeley was 

uncertain places Judge Stapleton in the untenable position of weighing 

this evidence. This is a job for a jury, not an appellate court. 

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This inquiry must be guided by more than just the 

court’s instincts or sense of what it believes should be the 

quantum of evidence necessary for a finding of liability in 

circumstances like those before the court. For guidance, 

Judge Stapleton looks to the Supreme Court’s decision in 

County of Sacramento v. Lewis, 523 U.S. 833 (1998). He 

notes that Lewis teaches that there are two critical 

prerequisites to determining whether a tort of constitutional 

proportions has been committed: first, an understanding 

that "whether executive action is conscience shocking and 

thus ‘arbitrary in the constitutional sense’ depends on the 

context in which the action takes place," and second, an 

exact analysis must be conducted of the circumstances 

confronting the decision maker. See Lewis, 523 U.S. at 

848-850. Judge Stapleton purports to adhere to this 

mandate, however, I do not believe the effort can withstand 

close scrutiny. Herein lies the source of my next, and last, 

disagreement with his view. 

Judge Stapleton writes that "[c]ertainly this situation is 

much closer to that in Lewis [which involved a high speed 

vehicle pursuit] than to that of a prison physician deciding 

whether to treat a serious medical need." In other words, he 

concludes that, although "an instantaneous judgment" was 
not required, there was insufficient time to engage in 

extended deliberation. Thus, Judge Stapleton suggests that 

"[i]t may well be that these circumstances, like those in 

Lewis, call for something more than a finding of‘mid-level 

fault’ as a predicate for a conclusion that the officers’ 

conduct shocks the conscience." It is somewhat unclear as 

to whether Judge Stapleton would, under circumstances 

such as these, require proof of intentional conduct. He 

reasons that he need not reach that issue. Instead, he 

concludes that "the current record will not support a 

finding of deliberate indifference." 

Again looking to the Supreme Court for guidance, Judge 

Stapleton concludes that the Lewis and Farmer v. Brennan, 

511 U.S. 825, 837 (1994), cases support the finding that 

deliberate indifference incorporates the concept of reckless 

behavior. More specifically, analogizing to the prison doctor 

situation, he concludes that, in order to find that Scherff 

and Woods were deliberately indifferent to Ms. Schieber’s 

 34 

 

plight, the record evidence would have to support the 

conclusion that they had "an actual, subjective appreciation 

of an excessive risk of serious harm to [Ms. Schieber] and 

that [they] ‘consciously disregar[ed]’ that risk." The 

underpinning for this conclusion is found in the following 

statement by Judge Stapleton: 

 Woods and Scherff were required to make a decision 

 without delay and under the pressure that comes from 

 knowing that the decision must be made on necessarily 

 limited information. The required judgment involved 

 the weighing of the important competing interests of 

 personal security and privacy. This in turn required an 

 evaluation of the dependability of Greeley’s report. The 

 officers made the required judgment, and their 

 discourse with the neighbors vouches that their focus 

 was on the relevant considerations - the reliability of 

 Greeley’s account and the impact of forced entry on 

 [Ms. Schieber’s] privacy interests. 

As Judge Stapleton writes, placement in the proper 

context is critical in determining "the degree of culpability 

required to meet the ‘shock the conscience’ standard." At 

the outset, I question whether he has placed the facts and 

circumstances of this case in the proper context as is 

required by Lewis. 

Judge Stapleton reasons that this case is "far from the 

situation of prison doctors." First, I do not agree that the 

instant facts place this case either "much closer to that in 

Lewis" or "far from the situation of the prison doctors." The 

facts and expertise upon which the court relies to reach 

this determination are unclear to me. Judge Stapleton 

writes that the officers "were required to make a decision 

without delay and under the pressure that comes from 

knowing that the decision must be made on necessarily 

limited information." To the contrary, the record reveals 
that at least one hour elapsed from the first report to the 

police of noises from the Schieber apartment to when the 

officers arrived on the scene. Further, upon their arrival, 

they heard no further noises nor did they see any signs of 

forced entry. Of course, the argument could be made that, 

as a result of these facts, every second counted. But the 

facts tend to belie this conclusion. If the officers believed 

 35 

 

themselves under that kind of pressure, it seems that upon 

arrival at the scene, given Greeley’s initial report of cries for 

help, proper police procedure would have dictated that they 

break the door in immediately. Regardless, however, of 

whether this would have been the proper procedure, the 

officers took the time to survey the outside of the apartment 

for signs of forced entry. They also spoke with at least two 

witnesses regarding their observations -- questioning one, 

Greeley, rather extensively. Thus, while I can agree that the 

circumstances do not place this case on the prison doctor 

side of the calculus for determining deliberate indifference, 

I cannot agree that the pressure was such that 

categorization of these circumstances as more equivalent to 

the hot pursuit scenario is appropriate either. Rather, I 

think, these facts place this case somewhere in the middle 

of the continuum of possibilities. 

Moving to the second Lewis requirement, Judge 

Stapleton’s "exact analysis" of the circumstances 

confronting the officers can be summed up in the 

conclusions noted above. The above-quoted passage from 

Judge Stapleton’s opinion is the essence of his finding that 

the conduct of the officers was not deliberately indifferent 

to Ms. Schieber’s needs at the time. In sum, Judge 

Stapleton made the following six conclusions: (1) the 

officers needed to make a decision without delay, (2) they 

were under pressure as a result of possessing only limited 

information, (3) the situation confronting them involved a 

judgment that required the weighing of important 

competing interests, (4) the judgment depended upon an 

evaluation of Greeley’s report, (5) the officers made the 

required judgment, and (6) their conversation with the 

neighbors, particularly Greeley, supports the conclusion 

that they focused on the relevant considerations. As just 

noted, each of these statements or findings is a conclusion. 

As with any conclusion, it is proper to determine whether 

there is a factual basis. Based on the pretrial record, I 

believe that only one of these conclusions is properly 

supported, and within the competence of this court to make 

at this time, namely, the legal conclusion that there were 

competing interests of personal security and privacy. 

Rule 702 of the Federal Rules of Evidence recognizes that 

there are occasions when a fact finder needs the assistance 

 36 

 

of one with specialized knowledge in order to discharge its 
responsibilities. I will not repeat my discussion of Judge 

Stapleton’s application of the holding in Johnson v. Jones 

here. I think it is enough to point out that, before this court 

can judge the conduct of these officers, there must be 

greater development of the record so that the court can 

arrive at informed conclusions based upon adequately 

adduced facts and not its own well-intended but unguided 

supposition. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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