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. e du/thir dc ir c uit_1996/77UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 95-2044

___________

SAMANTHA KNEIPP, an incompetent person by; RONALD A. CUSACK, SR.; ROSANNE M. CUSACK, Individual ly and as Guardians; ALEXANDER AUGUST DALMISANO, A M inor

Appellants

vs.

WESLEY TEDDER, Individually and in his Off icial Capacity; JOHN DOE AND OTHERS, Individuall y and in their official capacities; CITY OF PHILADE LPHIA

___________

Appeal from the United States District Co urt for the Eastern District of Pennsylvan ia (D.C. Civ. No. 95-cv-00129)

___________

Argued June 3, 1996 Before: BECKER and MANSMANN, Circuit Jud ges, and BROTMAN, District Judge.*

(Filed September 18, 1996)

___________

Howard K. Trubman, Esquire (ARGUED)

Suite 400

21 South 12th Street Philadelphia, PA 19107

COUNSEL FOR APPELLANT

Michael F. Eichert, Esquire (ARGUED) Chief Deputy City Solicitor Marie C. Lasota, Esquire Assistant City Solicitor Office of City Solicitor

1600 Arch Street

8th Floor Philadelphia, PA 19103-2081

COUNSEL FOR APPELLEES TEDDER AND CITY

* Honorable Stanley S. Brotman of the United States District Court for the District of New Jersey, sitt ing by designation.___________

OPINION OF THE COURT

__________

MANSMANN, Circuit Judge. In a civil rights complaint brought agains t the City of Philadelphia and certain police officers, the paren ts and legal guardians of Samantha Kneipp allege that late one J anuary evening when Kneipp, in an obvious state of severe inebriat ion, was attempting to return on foot to her nearby apartmen t, the police officers stopped her and sent her on alone. We hold that, if proven, the facts alleged will sustain a prima facie case of a violation of Kneipp's Fourt eenth Amendment substantive due process right and her lib erty interest in personal security under the theory that city pol ice officers increased the risk of harm to Kneipp which ultimate ly resulted in the severe damages she sustained. In so holding, w e adopt the "state-created danger" theory as a viable mechanism for establishing a constitutional violation under 42 U. S.C. § 1983. On remand, the municipal liability claims against t he City should be reexamined by the district court in light of the appropriate legal standard.

I. The events leading to the tragedy that bef ell Samantha Kneipp began in the late evening of January 23, 199 3. Samantha and her husband Joseph were returning on foot from a night of drinking at a tavern in Bucks County, Pennsylvania. According to Joseph, Samantha was visibly intoxicated--she sm elled of urine, staggered when she walked and, at times, was unable to walk without assistance. Joseph testified that he had to carry Samantha a portion of the way home. Shortly after midnight, now January 24, 19 93, Philadelphia Police Officer Wesley Tedder stopped t he Kneipps for causing a disturbance on the highway. At this poin t, the Kneipps were only one-third of a block from their h ome. Unable to stand by herself, Samantha was leaning on Office r Tedder's car. Officer Tedder questioned Samantha and Joseph separately; he stated in his deposition that he smelled alcohol on Samantha and found both of them to be intoxicated. He gave Samantha instructions to go stand somewhere, which she did n ot follow. Joseph told Officer Tedder that he just wanted to g et his wife into their apartment. Shortly after Officer Tedder stopped the K neipps, three other police officers arrived separately at the sce ne and positioned themselves across the street from Office r Tedder. Joseph left Officer Tedder and crossed over to the other side of the street where the police cars were situated. Jo seph told one of the officers that he had a babysitter watching h is son and that he was supposed to be home by now. Joseph the n asked the officer if he could go home, to which the officer r eplied, "Yeah,sure." When Joseph left to walk home, Samantha was leaning on

the front of a police car in the presence of severa l police officers. Joseph testified that he assumed that be cause Samantha was drunk, the police officers were going to take h er either to the hospital or to the police station. His thought s at the time

were that Samantha should not be left alone in her inebriated state and that the police officers would take care of her, so he proceeded home without her. Officer Tedder, howeve r, sent Samantha home alone; she never reached her apartmen t building. When his wife did not return to their apar tment, Joseph went out to look for her. He saw a police car park ed in a Sunoco station not far from his apartment building. As Joseph approached the car, he discovered Officer Tedder in side, and asked him if he had locked up Samantha or had taken her to the hospital. According to Joseph, Officer Tedder told him "to get out of here before he locked [him] up." Because of a previous experience with the Philadelphia police, Joseph too k Officer Tedder's remark seriously and left. Joseph decided to continue looking for Samantha, and as he proceeded in the di rection of a neighborhood convenience store, he thought he saw s omeone resembling Samantha, dressed in similar clothing, g etting into an orange car. Because of Samantha's previous infidel ity, Joseph thought that if it were Samantha, she was cheating on him again and would return when she was done. Joseph was nev er certain, however, that the woman he saw entering the car was Samantha. Joseph decided to forego his search and returned ho me. At approximately 1:51 a.m., Officer Franci s Healy responded to a radio call reporting that an individ ual was found

unconscious at the bottom of an embankment next to a parking lot at the shopping plaza across the street from the Kn eipps' home. The unconscious individual was Samantha Kneipp. Jo seph was awakened around 4:00 a.m. by Officer Healy, who inf ormed him that Samantha had fallen and was in the hospital. As a result of her exposure to the cold, S amantha suffered hypothermia, which caused a condition know n as anoxia. Consequently, the anoxia resulted in permanent brai n damage impairing many basic body functions. Samantha's legal guardians instituted this civil rights action under 42 U.S.C. § 1983 against the City of P hiladelphia and several police officers, alleging that the poli ce officers were aware of Samantha's intoxication and "the pote ntial for her to suffer harm because of her profoundly impaired f aculties." By voluntarily assuming responsibility for her protect ion when they told Joseph he could leave, it was alleged that the officers affirmatively created a danger and increased the ri sk that Samantha might be injured when they later abandoned her. It is further alleged that the police conduct made Samant ha "more vulnerable" [by] . . . "interfer[ing] with the effo rts of Joseph [ ] to assist his wife to safety." Because the pol ice officers acted with "deliberate or reckless indifference, ca llous disregard, or in such an arbitrary or abusive manne r so as to shock the conscience," the legal guardians maintain ed that Samantha was deprived of her right to substantive d ue process and her liberty interest in personal security in violat ion of theFourteenth Amendment of the United States Constitut ion.

In addition, the legal guardians contended that the City of Philadelphia, by acquiescing in the longsta nding policy, custom, or practice of not posting "activity credit s" for taking intoxicated pedestrians into custody, and by failin g to adequately train its police officers in the proper care of intoxicated persons, acted with "deliberate or reck less indifference, callous disregard, or in an arbitrary and abusive manner so as to shock the conscience," thereby also violating Samantha's right to substantive due process and her liberty interest in personal security. In granting the defendants' motion for summary judgment, the district court found that the legal g uardians had failed to prove a constitutional violation under ei ther the "special relationship" test or the state-created da nger theory.

The court also denied a motion for reconsideration. The legal guardians filed a timely notice of appeal from the order of the district court. We have juri sdiction pursuant to 28 U.S.C. § 1291; we exercise de novo r eview of the district court's grant of summary judgment. Ideal Dairy Farms, supra; Antol v. Perry, 82 F.3d 1291, 1294 (3d Cir. 1996).

II. We begin our analysis with a discussion of the requirements for establishing a constitutional clai m under 42 U.S.C. § 1983. The pertinent language of section 1 983 states: Every person who, under color of any statu te, ordinance, regulation, custom, or usage, o f any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United State s or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for

redress.

Section 1983 does not, by its own terms, create sub stantive rights; it provides only remedies for deprivations of rights

established elsewhere in the Constitution or federa l laws. Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979); Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.), cert. denied , 116 S. Ct. 165 (1995) (citation omitted). In order to establi sh a section 1983 claim, a plaintiff "must demonstrate a violati on of a right secured by the Constitution and the laws of the Uni ted States [and] that the alleged deprivation was committed by a person acting under color of state law." Mark, 51 F.3d at 1141 (quoting Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993)) . Here, Samantha Kneipp's legal guardians have alleged that the City and police officers violated Samantha's right to substa ntive due process guaranteed by the Fourteenth Amendment. In DeShaney v. Winnebago Co. Dep't of Soci al Serv., 489U.S. 189, 197 (1989), the Supreme Court considered whether the

due process clause of the Fourteenth Amendment impo sed upon the state an affirmative duty to protect an individual against private violence where a special relationship exist s between the state and the private individual. The Court found that the special relationship which would impose affirmative duties of care and protection on the state existed only in ce rtain limited circumstances, such as when the state takes a perso n into its custody and holds him there against his will. Id. at 199-201. The Court explained: In the substantive due process analysis, i t
is the State's affirmative act of restrain ing

the individual's freedom to act on his own behalf--through incarceration, institutionalization, or other similar restraint of personal liberty--which is th e "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other

means.

Id. at 200 (footnote omitted). Applying this princ iple to the facts in DeShaney, the Court did not find a due pro cess violation as the harms suffered by the child occurred while h e was in the custody of his father, not in the state's custody. Id. at 201. In the case before us, we agree with the d istrict court that the special relationship required by DeShaney did not exist between Samantha and the police officers. We disag ree, however, with the holding of the district court insofar as i t adds a special relationship requirement to the state-creat ed danger theory. In DeShaney, the Supreme Court left open t he possibility that a constitutional violation might have occurred despite the absence of a special relationship when it stated: "While the State may have been aware of the dangers that Joshu a faced in the free world, it played no part in their creation, no r did it do anything to render him any more vulnerable to them. " Id. at 201. Several of our sister courts of appeals have cited this comment by the Court as support for utilizing a state-creat ed danger theory to establish a constitutional claim under 42 U.S.C. § 1983. See Uhlrig v. Harder, 64 F.3d 567, 572 n. 7 (10th Cir. 1995), cert. denied, 116 S.Ct. 924 (1996); Dwares v . City of New York, 985 F.2d 94, 99 (2d Cir. 1993); Reed v. Gardn er, 986 F.2d 1122, 1125 (7th Cir.), cert. denied, 510 U.S. 947 ( 1993); Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990). More over, two other courts of appeals, in decisions predating DeS haney, recognized the state-created danger theory as a bas is for establishing a constitutional claim under section 1 983. SeeCornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), cert. denied, 494 U.S. 1066 (1990); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 93 8 (1990). In previous cases, we have considered the possible viability of the state-created danger theory as a m echanism for establishing a constitutional claim pursuant to 42 U.S.C. § 1983.Mark, 51 F.3d at 1152 (citing D.R. by L.R. v. Middl e Bucks Area

Vo. Tech. School, 972 F.2d 1364, 1373 (3d Cir. 1992 ) (in banc), cert. denied, 506 U.S. 1079 (1993)); see also Brown v. Grabowski, 922 F.2d 1097, 1114-16 (3d Cir. 1990), cert. denied , 501 U.S. 1218 (1991). Until now, we have not, however, been presented with the appropriate factual background to support a finding that state actors created a danger which deprived an ind ividual of her Fourteenth Amendment right to substantive due proce ss. Samantha Kneipp's case presents the right set of facts which , if believed, would trigger the application of the state-created danger theory. We turn first to our previous decisions in this are a. In the 1990 case of Brown v. Grabowski, su pra, Deborah Evans had been abducted and murdered by her former live-in boyfriend, Clifton McKenzie. Prior to the abductio n, McKenzie had held Evans hostage for three days, during which he repeatedly threatened and sexually assaulted her. Although Ev ans and her family reported this information to the local polic e, criminal charges were never filed. Shortly thereafter, Evan s was abducted and imprisoned in the trunk of her car where she fr oze to death. The personal representative of Evans' estate filed a civil rights complaint against the borough and employees of the police department alleging, inter alia, that Detective Gra bowski, in failing to file criminal charges against McKenzie a nd in failing to inform Evans of her right as a victim of domesti c violence to obtain a restraining order against McKenzie, violat ed her constitutional rights to due process and of access to the civil

and criminal courts. The plaintiff in Brown relied upon Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), and Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), in support of her argument that the state-created danger theory was a viable b asis for imposing constitutional liability under section 198 3. In Wood, a police officer stranded the female passenger of a d runk driver along the side of the road in a high-crime area at 2:30 a.m. While undertaking the five mile walk to her home, t he passenger accepted a ride from a stranger who took her to a s ecluded area and raped her. The Court of Appeals for the Ninth Circuit held that the plaintiff had raised a triable issue of fa ct as to whether the police officer "`affirmatively placed [ her] in a position of danger.'" 879 F.2d at 589-90 (citation omitted). The court further held that the plaintiff was disti nguishable from the general public and, therefore, the police had a duty to offer her some degree of peace and safety. Id. at 590 (citing White v. Rockford, 592 F.2d 381, 384 & n.6 (7th Cir . 1979)). The Court of Appeals for the Eleventh Circ uit in Cornelius validated the use of the "special danger" theory as a basis for establishing a constitutional violation u nder 42 U.S.C. § 1983. In that case, Mrs. Cornelius was abducted at knife-point by two prison inmates assigned to a community work squad at the

town hall where she worked. Mrs. Cornelius was hel d hostage and terrorized for three days before being abandoned in another state. She subsequently commenced a civil rights a ction against various prison and town officials, alleging they ow ed her a duty to assign only properly classified prison inmates, i.e.,nonviolent-offenders, to the community work squads and to provide

adequately skilled and trained officials to supervi se the prison work squads. 880 F.2d at 352. In concluding that a triable issue of fact existed precluding summary judgment, the court found that the defendants affirmatively created a d angerous situation by establishing the work squad and assign ing inmates to work around town hall. Id. at 356. Moreover, beca use of her position as town clerk, Mrs. Cornelius was regularl y exposed to prison work squads, thereby increasing her vulnerab ility to harm. Id. These two factors taken together "effectively operated to place [Mrs. Cornelius] in a position of danger dist inct from that facing the public at large" and were sufficient to impose a duty

under section 1983. Id. at 357. The court of appeals in Cornelius also imp osed a nexus element to establish a triable issue as to special danger. Citing Martinez v. California, 444 U.S. 277 (1980), the court held that there must be a sufficiently close nexus between the defendant's conduct and the plaintiff's alleged due process violation under the Fourteenth Amendment to establi sh a constitutional claim based on the special danger th eory. 880 F.2d at 353 and 358. The court of appeals found th e employees at the town hall, including Mrs. Cornelius, "were well within the identifiable radius of harm known to defendants," a nd thus

concluded that these facts created a triable issue as to special danger. Id. at 359. We found Wood and Cornelius to be distingu ishable from the facts in Brown -- in the former cases, the stat e defendants affirmatively acted to create the danger to the vic tims; the plaintiff in Brown, however, failed to offer any ev idence that the police officers acted to create or to exacerbat e the danger that the former boyfriend posed to the victim. 922 F.2d at 1116. The plaintiff demonstrated only that Detective Grab owski failed to advise the victim of her right to seek a protect ive order. Id. Thus, we concluded in Brown that the plaintiff had failed to establish a cognizable constitutional claim under s ection 1983. In 1992, sitting in banc, we considered th e statecreated danger theory in D.R. by L.R. v. Middle Buc ks Area Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992). There two female students at a public high school alleged that they were physically, verbally and sexually molested by male students in a unisex bathroom and in a darkroom, which were parts of the graphic arts classroom. The students' parents brou ght a civil rights action against the school district and sever al school officials and employees, alleging that the defendan ts created the danger that resulted in a violation of the plaintif fs' constitutional rights. In support of this claim, p laintiffs argued that the school defendants "`created a clima te which facilitated sexual and physical abuse of students'" and, having thrust plaintiffs into this situation, "were obliga ted to protect them from violations of their personal bodily integ rity by other

students who were also under defendants' control." Id. at 1373. In D.R., we recognized that the state-crea ted danger theory had been utilized by several courts of appea ls to find a

constitutional violation under section 1983 in non- custodialsettings. Id. We read the post-DeShaney decisions to frame the

inquiry as "whether the state actors involved affir matively acted to create plaintiff's danger, or to render him or h er more vulnerable to it." Id. (citation omitted). We con tinued that "[l]iability under the state created danger theory is predicated upon the states' affirmative acts which work to pla intiffs' detriments in terms of exposure to danger." Id. at 1374. We quoted the following comment from the Court of Appe als for the

Seventh Circuit: We do not want to pretend that the li ne between action and inaction, between inflicting and failing to prevent the infliction of harm, is clearer than it is. If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say t hat its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.

Id. (quoting Bowers v. DeVito, 686 F.2d 616, 618 (7 th Cir. 1982)). We concluded in D.R. that the facts presen ted did not show that the defendants created the students' dang er, increased their risk of harm, or made them more vulnerable to the assaults. Id. Moreover, we found the state-created danger li ne of cases to be factually distinguishable in a critical respect: in the cases where the courts imposed a constitutional duty base d on a statecreated danger, the state had affirmatively acted t o create the danger. Id. In D.R., we found that the harm to th e students resulted solely from the acts of private individual s, and not from the type of intermingling between state conduc t and private violence that imposed liability in Wood and Corneli us. Id. at

1375. The acts or omissions of the school defendan ts in D.R., we concluded, did not rise to the level of affirmative action required to impose liability under the state-create d danger theory. In the 1994 case of Fagan v. City of Vinel and, 22 F.3d 1296 (3d Cir. 1994) (in banc) (Fagan II), the plain tiffs claimed their constitutional rights to substantive due proc ess were violated when police officers recklessly conducted a high speed pursuit in violation of the Attorney General's guid elines. The plaintiffs also alleged that the municipal defendan t was liable because it followed a policy of not properly traini ng and supervising police officers in conducting high-spee d pursuits, and because it followed a policy of not enforcing t he pursuit guidelines. The sole issue before us was the appro priate standard by which to judge police conduct in pursui t cases alleging a violation of substantive due process. I d. at 1299. We held that the appropriate standard to be applied in police pursuit cases involving an alleged violation of sub stantive due process is the "shocks the conscience" test. Id. a t 1303. In Fagan II, we declined to consider the a pplicability of the DeShaney line of cases which imposed a const itutional dutyin limited situations, i.e., special relationship o r custody

cases, to police pursuit cases, as this issue was n ot raised by the parties or addressed by the district court. Id . at 1308 n.9. Moreover, the plaintiffs in Fagan II did not advanc e the statecreated danger theory as a basis for establishing a constitutional violation. Thus, neither the distri ct court nor our court had the opportunity in Fagan II to reviewthe viability of the state-created danger theory. We believe tha t the Fagan IIshocks the conscience standard is limited to police pursui t cases, and accordingly, we are not bound to follow that standard

in the case before us. In the 1995 case of Mark v. Borough of Hat boro, supra, we suggested a test for applying the state-created danger theory. We found that cases predicating constitutional liab ility on a state-created danger theory have four common elemen ts: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the sta te actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and th e plaintiff; (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.

51 F.3d at 1152. We further noted that "[t]he case s where the state-created danger theory was applied were based on discrete, grossly reckless acts committed by the state or sta te actors using their peculiar positions as state actors, lea ving a discrete plaintiff vulnerable to foreseeable injury ." Id. at 1153. Those courts which have recognized the state -created danger theory have employed a deliberate indifferen ce standard. Id. at 1152 (quoting Johnson v. Dallas Independent School Dist., 38 F.3d 198, 201 (5th Cir. 1944), cert. denied, 115 S. Ct. 1361 (1995); Wood, 879 F.2d at 588; Cornelius, 880 F.2d at 350). We again declined to adopt the state-creat ed danger theory in Mark because its facts were dissimilar to the courts of appeals cases which upheld its use. Id. at 1152. The alleged

constitutional violation in Mark arose from the bor ough's "failure to follow adequate policies to ensure that applicants to the fire department were screened sufficiently for tendencies

towards arson." Id. at 1140. We concluded that wh en the alleged violation involved a policy directed at the public in general, such as the one at issue in Mark, the basis for the state-created danger theory was obviated insofar as the defendant lacked specific knowledge of the plaintiffs' condition, an d a relationship between the defendants and plaintiffs did not exist.

Id. at 1153. We turn now to the unique facts presented in the case

before us.

III. We begin by applying the four common eleme nts we set forth in Marks for the state-created danger theory. First, theinjuries to Samantha were foreseeable -- Dr. Safers tein stated in

his report that at a blood alcohol level of .25%, S amantha's muscular coordination was seriously impaired. Jose ph's testimony as to how he had to help his wife walk, even carry her at times, also tends to show that Samantha's ability to walk was impaired.

A reasonable trier of fact could conclude that in S amantha's state of intoxication, she would be more likely to fall and injure herself if left unescorted than someone who was not
inebriated. Based on the facts and inferences most favorable to the legal guardians, we hold that a reasonable jury could find that the harm likely to befall Samantha if separate d from Joseph while in a highly intoxicated state in cold weather was indeed

foreseeable. Second, we find the plaintiffs have adduce d sufficient

evidence to raise a material issue as to whether Of ficer Tedder acted in willful disregard for Samantha's safety. The plaintiffs presented evidence regarding Samantha's level of in toxication and impairment; by Officer Tedder's own testimony, he a dmitted that he knew Samantha was drunk. Moreover, Tedder's sta tement that he sent Samantha and Joseph home together is contradic ted by the testimony of Joseph, Officer Healy and Tina Leone. We also believe the legal guardians have p roved the third element -- a relationship between the state a nd the person injured (here Officer Tedder and Samantha and Josep h Kneipp) during which the state places the victim in danger of a foreseeable injury. Mark, 51 F.3d at 1153. Here i t is alleged that Officer Tedder, exercising his powers as a pol ice officer, placed Samantha in danger of foreseeable injury whe n he sent her home unescorted in a visibly intoxicated state in c old weather. A reasonable jury could find that Officer Tedder ex erted

sufficient control over Samantha to meet the relati onship requirement. Finally, there is sufficient evidence in t he summary judgment record to show that Officer Tedder and the other police officers used their authority as police officers to create a dangerous situation or to make Samantha more vulner able to danger had they not intervened. The conduct of the police , in allowing Joseph to go home alone and in detaining Samantha, and then sending her home unescorted in a seriously intoxica ted state in cold weather, made Samantha more vulnerable to harm . It is conceivable that, but for the intervention of the p olice, Joseph

would have continued to escort his wife back to the ir apartment where she would have been safe. A jury could find that Samantha was in a worse position after the police intervened than she would have been if they had not done so. As a resu lt of the affirmative acts of the police officers, the danger or risk of injury to Samantha was greatly increased. Thus, we believe that a reasonable jury could find that the fourth and fi nal requirement of Mark was satisfied here. We find additional support for our positio n in the courts of appeals' decisions previously cited. See Reed v. Gardner, 986 F.2d at 1127 (police officer who remov ed a sober driver and left behind a passenger whom he knew to be drunk with the keys to the car was subject to liability under 42 U.S.C. §1983); Freeman v. Ferguson, 911 F.2d at 54 (police chief, by

interfering with police officers' enforcement of re straining order, created the danger which resulted in the vic tims' deaths and thus deprived victims of their constitutional r ights); White v. Rockford, 529 F.2d at 385 (police officers who a rrested uncle for drag racing and left minor children alone in ab andoned car on the side of a busy, limited-access highway in cold weather had deprived children of their constitutional rights to personal security where the abandonment resulted in physical and emotional injury to the children). In contrast to the above cited authority s tands the en banc decision of the United States Court of Appeals for the Eighth Circuit in Gregory v. City of Rogers, Arkans as, 974 F.2d 1006 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1 993). In that case, the plaintiffs brought a civil rights action against the municipality and one of its police officers on the basis that defendants had a duty to provide for the safety of the passengers of a drinking group after the police arrested their designated driver on an outstanding warrant. After detaining the designated driver along the road for several minutes, the poli ce allowed the designated driver to drive the car to the police st ation. The intoxicated passengers remained in the car, which w as parked in front of the police station, while the designated d river cleared up the outstanding warrant inside the station with the police. After waiting approximately thirty minutes, one of the intoxicated passengers, the owner of the car, drove the car away and subsequently was involved in a one-car accident , killing himself and seriously injuring his passenger. Plai ntiffs contended that the police officer actively placed t he passengers in danger by permitting them to stay in the car una ttended while waiting for the designated driver at the police sta tion "`in spite of their obviously intoxicated condition.'" Id. at 1009-

10. In Gregory, the plaintiffs' argument turne d on whether the police officer knew or should have known the pa ssengers were intoxicated. The court of appeals found that the p laintiffs

failed to submit sufficient evidence which would le ad a reasonable trier of fact to conclude that the polic e officer knew or should have known that the passengers were intox icated and unfit to drive, and thus, upheld the district court 's grant of summary judgment. The court of appeals, however, d id not end its analysis there. It went on to say that even if the police officers knew the passengers were intoxicated, a re asonable jury could not find that the police officer affirmativel y placed the passengers in danger by leaving them unattended in the car at the station. Id. at 1011. The court explained that it was the designated driver who placed the passengers in dang er by leaving the keys in the car when he went into the police st ation. Id. at 1012. To impose a duty on the police to take affir mative action to protect the passengers, the court held, would ci rcumvent the general rule that plaintiffs do not have a constitu tional right to be protected by the police against harm inflicte d by third persons. Id. (citing Wells v. Walker, 852 F.2d 368 , 370 (8th Cir. 1988), cert. denied, 489 U.S. 1012 (1989); DeS haney, 489U.S. at 195-96).

Gregory, however, is distinguishable from this case in two respects. First the court of appeals in Gregor y found that the police officer did not know that the passengers were intoxicated -- neither the testimony of the witness es, nor the behavior of the two passengers observed during the traffic stop on the roadway indicated they were intoxicated. In contrast here, Officer Tedder admitted that he knew Samantha was drunk at the time he was questioning her, and Samantha was o bserved staggering, walking and standing with difficulty, r equiring that she lean on parked cars or be carried by her husban d.

The second distinction is who created the danger -- in Gregory, the court found that the third party creat ed the danger by leaving the keys in the car; in the case before us, the police officers intervened to cut off Samantha's private s ource of protection by giving Joseph permission to go home a lone, thereby increasing the danger that Samantha would suffer ha rm in her visibly intoxicated state when they abandoned her. The affirmative acts of the police officers here create d a dangerous situation, requiring that they take additional meas ures to ensure Samantha's safety. That they failed to take the ap propriate measures, knowing that Samantha was severely intoxi cated, shows that the police officers acted with reckless disreg ard for her safety. On the other hand, the conduct of the poli ce officer in Gregory did not rise to a level of recklessness. H e did not know the passengers were drunk; nor did he take any affi rmative action to create the dangerous situation -- leaving the ke ys in the car. Put another way, the passengers in Gregory were nev er abandoned; all they had to do was remain in the safety of the car and await the return of their driver. Samantha, however, was isolated from her husband and then abandoned by the police. Clea rly then, because of these two important distinctions, Gregor y is not dispositive of the issue before us. At oral argument, we requested counsel for both sides to submit a letter brief under Fed. R. App. P. 28(j ) on the issue of whether the Philadelphia police officers have a duty to arrest an intoxicated person as a basis for imposing liabi lity for a

constitutional tort under section 1983. We are con vinced, after reviewing the pertinent caselaw, that no such duty exists in Pennsylvania. Even so, the failure to arrest Saman tha would not give rise to a constitutional claim, as liabili ty under section 1983 can be predicated only on violations o f "federal statutory or constitutional rights under color of s tate law." D.R., 972 F.2d at 1375 (citations omitted). The il legal conduct

under the state law cannot add to or subtract from the "constitutional validity `[of a state's actions].'" Id.(citations omitted). Under the particular circumstances of this case, we hold that the state-created danger theory is a viab le mechanism for establishing a constitutional claim under 42 U. S.C. § 1983. When viewed in the light most favorable to the lega l guardians,

the evidence submitted was sufficient to raise a tr iable issue of fact as to whether the police officers affirmativel y placed Samantha in a position of danger. The district cou rt erred,therefore, in granting summary judgment for the def endant police

officers based on its finding that a constitutional violation had

not occurred.

IV. The plaintiffs also argue that liability s hould be imposed under section 1983 against the City of Phil adelphia for constitutional violations as a result of the City's acquiescence in the longstanding policy, custom or practice of n ot granting "activity credits" for taking intoxicated individua ls into custody, and its failure to adequately train its po lice officers in the proper care of intoxicated persons. By so d oing, the plaintiffs contend, the City acted with "deliberate or reckless indifference, callous disregard, or in an arbitrary and abusive manner so as to shock the conscience." Consequentl y, Samantha's right to substantive due process and her liberty in terest in personal security guaranteed by the Fourteenth Amen dment were allegedly violated. We do not believe the district court adequ ately considered the appropriate legal standard in granti ng the City's motion for summary judgment. Although we feel comp elled to set forth the appropriate legal standard, we decline to rule on whether it was met here, leaving that determination to the

district court in the first instance. The Supreme Court enunciated the rule for imposing liability against a municipality under section 1983 in Monell v. New York City Dept. of Social Serv., 436 U.S. 658 ( 1978). The

Court held in Monell that: . . . a local government may not be sued under § 1983 for an injury inflicted solel y by its employees or agents. Instead, it i s when execution of a government's policy or custom, whether made by its lawmakers or b y those whose edicts or acts may fairly be s aid to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.

Id. at 694. Accordingly, the Supreme Court express ly rejected the imposition of section 1983 liability against a municipality on a respondeat superior theory. Id. at 691. In City of Canton v. Harris, 489 U.S. 378 (1989), the Supreme Court was asked to decide whether liability can ever be imposed against a municipality under section 1983 f or constitutional violations as a result of failing to train its police officers. Mrs. Harris had been arrested and taken to the police station for processing where she "slumped to the floor" twice and spoke incoherently. Medical assistance w as never sought for her. Following her release from custody , Mrs. Harris was taken to a hospital by her family, where she wa s diagnosed as suffering from several emotional injuries. In conc luding that section 1983 liability may attach to a municipality if it had a policy or custom of failing to train its employees and that failure caused the underlying constitutional violat ion, theCourt rejected the City of Canton's argument that o nly

unconstitutional policies are actionable under the civil rights statute. Id. at 387. As to the degree of fault re quired to impose liability for the municipality's inaction, t he Court articulated the following rule: "the inadequacy of police training may serve as the basis for section 1983 li ability only

where the failure to train amounts to deliberate in difference to the rights of persons with whom the police came int o contact." Id. at 388 (footnote omitted). The Court further e xplained: Only where a municipality's failure to tra in its employees in a relevant respect eviden ces a "deliberate indifference" to the rights of its inhabitants can such a shortcoming be properly thought of as a city "policy or
custom" that is actionable under § 1983 . . . . Only where a failure to train

reflects a "deliberate" or "conscious" cho ice by a municipality -- a "policy" as defined by our prior cases -- can a city be liable fo r such a failure under § 1983.

Id. at 389. In addition to proving deliberate indi fference, the Court held that the plaintiffs must show that the " deficiency in training actually caused the police officers' indif ference to [the individual's] medical needs." Id. at 391. Recently, we had the opportunity to examin e the holdings of Monell and its progeny in Beck v. City of Pittsburgh, ___ F.3d ___, No. 95-3328, 1996 WL 406776 (3d Cir. July 22, 1996). In Beck, we were asked to decide whether su fficient evidence had been presented for a jury to infer tha t a municipality had adopted a custom of permitting its police officers to use excessive force in the performance of their duties. Citing Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), we noted that the Supreme Court recognized a "two-path track to municipal liability under § 1983," either through government policy or custom. Beck, 1986 WL 406776, at *6. We had previously set forth the parameters of a govern ment policy or custom for section 1983 liability: Policy is made when a "decisionmaker possess[ing] final authority to establish municipal policy with respect to the actio n" issues an official proclamation, policy, o r edict. A course of conduct is considered to be a "custom" when, though not authorized by law, "such practices of state officials [a re] so permanent and well settled" as to virtually constitute law.

Beck, id. (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (citations omitted). Mor eover, a prerequisite to establishing liability in either si tuation is a showing that a policymaker was responsible either f or the policy or, through acquiescence, for the custom. Id. See also Jett v. Dallas Independent School Dist., 491 U.S. 701 (1989 ); Bieleviczv. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).

In order to ascertain who is a policymaker , "a court must determine which official has final, unreviewab le discretion to make a decision or take action." Andrews, 895 F .2d at 1481.

We further held in Bielevicz that: Under § 1983, only the conduct of those

officials whose decisions constrain the

discretion of subordinates constitutes the acts of the municipality. This does not mean, however, that the responsible decisionmaker must be specifically identif ied by the plaintiff's evidence. Practices "` so permanent and well settled' as to have `th e force of law' [are] ascribable to municipa l

decisionmakers."

915 F.2d at 850 (citations omitted). Proof only of the existence of an unlawful policy or custom is not sufficient, however, to impose munici pal liability under section 1983. Id. A plaintiff must also est ablish that the government policy or custom was the proximate c ause of the injuries sustained. Id. (citation omitted). "To e stablish the necessary causation, a plaintiff must demonstrate a `plausible nexus' or `affirmative link' between the municipali ty's custom and the specific deprivation of constitutional righ ts at issue." Id. (citation omitted). To the extent that the "ca usal link" is not too attenuated, the jury must decide whether th e government policy or custom proximately caused the constitutio nal violation.

Id. Here, the district court dismissed the mun icipal liability claims against the City of Philadelphia o n the basis that the plaintiffs failed to establish an underlyi ng constitutional violation pursuant to section 1983. It does not appear that, in so ruling, the district court consi dered the substantive elements of the municipal liability cla ims -- whether (1) the City of Philadelphia's training program for handling intoxicated persons was adequate; (2) if the traini ng program was inadequate, the City was deliberately indifferent t o the deficiency; and, (3) the deficiency in the training actually caused the police officers' indifference to Samanth a's intoxication and need for assistance. The preceden t in our circuit requires the district court to review the p laintiffs' municipal liability claims independently of the sec tion 1983 claims against the individual police officers, as t he City's liability for a substantive due process violation d oes not depend upon the liability of any police officer. Fagan v. City of Vineland, 22 F.3d 1283, 1293-94 (3d Cir. 1994) (Fag an I) (citing Simmons v. City of Philadelphia, 947 F.2d 1042, 106 3 (3d Cir. 1991), cert. denied, 503 U.S. 985 (1992)). Accordi ngly, on remand, the district court must evaluate the munici pal liability claims in light of the standards set forth above, n otwithstanding the outcome as to the claims against the individual police

officers.V.

In conclusion, we find that the evidence p resented, when viewed in the light most favorable to the lega l guardians, together with all reasonable inferences on their be half, could support a jury's verdict in their favor as to the c onstitutional violations alleged against the individual police of ficers. We will, therefore, reverse the order of the district court granting summary judgment for the defendants and remand for trial on this issue, and for further consideration of the municip al liability claims against the City of Philadelphia in light of our opinion.

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