1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-18-1996

Kneipp v. Tedder

Precedential or Non-Precedential:

Docket 95-2044

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Recommended Citation

"Kneipp v. Tedder" (1996). 1996 Decisions. Paper 77.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/77
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 

 No. 95-2044 

 ___________ 

 SAMANTHA KNEIPP, an incompetent person by; RONALD A. 

 CUSACK, SR.; ROSANNE M. CUSACK, Individually and as 

 Guardians; ALEXANDER AUGUST DALMISANO, A Minor 

 Appellants 

 vs. 

 WESLEY TEDDER, Individually and in his Official 

 Capacity; JOHN DOE AND OTHERS, Individually and in 

 their official capacities; CITY OF PHILADELPHIA 

 ___________ 

 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Civ. No. 95-cv-00129) 

 ___________ 

 

 Argued 

 June 3, 1996 

 Before: BECKER and MANSMANN, Circuit Judges, 

 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, sitting by 

designation. 
 ___________ 

 OPINION OF THE COURT 

 __________ 

MANSMANN, Circuit Judge. 

 In a civil rights complaint brought against the City of 

Philadelphia and certain police officers, the parents and legal 

guardians of Samantha Kneipp allege that late one January evening 

when Kneipp, in an obvious state of severe inebriation, was 

attempting to return on foot to her nearby apartment, 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 Fourteenth 

Amendment substantive due process right and her liberty interest 

in personal security under the theory that city police officers 

increased the risk of harm to Kneipp which ultimately resulted in 

the severe damages she sustained. In so holding, we 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 the City should 

be reexamined by the district court in light of the appropriate 

legal standard. 

I. 

 The events leading to the tragedy that befell Samantha 

Kneipp began in the late evening of January 23, 1993. 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 smelled 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, 1993, 

Philadelphia Police Officer Wesley Tedder stopped the Kneipps for 

causing a disturbance on the highway. At this point, the 

Kneipps were only one-third of a block from their home. Unable 

to stand by herself, Samantha was leaning on Officer 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 not follow. 

Joseph told Officer Tedder that he just wanted to get his wife 

into their apartment. 

 Shortly after Officer Tedder stopped the Kneipps, three 

other police officers arrived separately at the scene and 

positioned themselves across the street from Officer Tedder. 

Joseph left Officer Tedder and crossed over to the other side of 

the street where the police cars were situated. Joseph told one 

of the officers that he had a babysitter watching his son and 

that he was supposed to be home by now. Joseph then asked the 

officer if he could go home, to which the officer replied, "Yeah, 
sure." When Joseph left to walk home, Samantha was leaning on 

the front of a police car in the presence of several police 

officers. Joseph testified that he assumed that because Samantha 

was drunk, the police officers were going to take her either to 

the hospital or to the police station. His thoughts 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, however, sent 

Samantha home alone; she never reached her apartment building. 

 When his wife did not return to their apartment, Joseph 

went out to look for her. He saw a police car parked in a 

Sunoco station not far from his apartment building. As Joseph 

approached the car, he discovered Officer Tedder inside, 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 took Officer 

Tedder's remark seriously and left. Joseph decided to continue 

looking for Samantha, and as he proceeded in the direction of a 

neighborhood convenience store, he thought he saw someone 

resembling Samantha, dressed in similar clothing, getting into an 

orange car. Because of Samantha's previous infidelity, Joseph 

thought that if it were Samantha, she was cheating on him again 

and would return when she was done. Joseph was never certain, 

however, that the woman he saw entering the car was Samantha. 

Joseph decided to forego his search and returned home. 

 At approximately 1:51 a.m., Officer Francis Healy 

responded to a radio call reporting that an individual was found 

unconscious at the bottom of an embankment next to a parking lot 

at the shopping plaza across the street from the Kneipps' home. 

The unconscious individual was Samantha Kneipp. Joseph was 

awakened around 4:00 a.m. by Officer Healy, who informed him that 

Samantha had fallen and was in the hospital. 

 As a result of her exposure to the cold, Samantha 

suffered hypothermia, which caused a condition known as anoxia. 

Consequently, the anoxia resulted in permanent brain 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 Philadelphia 

and several police officers, alleging that the police officers 

were aware of Samantha's intoxication and "the potential for her 

to suffer harm because of her profoundly impaired faculties." By 

voluntarily assuming responsibility for her protection when they 

told Joseph he could leave, it was alleged that the officers 

affirmatively created a danger and increased the risk that 

Samantha might be injured when they later abandoned her. It is 

further alleged that the police conduct made Samantha "more 

vulnerable" [by] . . . "interfer[ing] with the efforts of Joseph 

[ ] to assist his wife to safety." Because the police officers 

acted with "deliberate or reckless indifference, callous 

disregard, or in such an arbitrary or abusive manner so as to 

shock the conscience," the legal guardians maintained that 

Samantha was deprived of her right to substantive due process and 

her liberty interest in personal security in violation of the 
Fourteenth Amendment of the United States Constitution. 

 In addition, the legal guardians contended that the 

City of Philadelphia, by acquiescing in the longstanding policy, 

custom, or practice of not posting "activity credits" for taking 

intoxicated pedestrians into custody, and by failing to 

adequately train its police officers in the proper care of 

intoxicated persons, acted with "deliberate or reckless 

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 guardians had 

failed to prove a constitutional violation under either the 

"special relationship" test or the state-created danger 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 jurisdiction 

pursuant to 28 U.S.C. § 1291; we exercise de novo review 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 claim under 42 

U.S.C. § 1983. The pertinent language of section 1983 states: 

 Every person who, under color of any statute, 

 ordinance, regulation, custom, or usage, of 

 any State or Territory or the District of 

 Columbia, subjects, or causes to be 

 subjected, any citizen of the United States 

 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 substantive 

rights; it provides only remedies for deprivations of rights 

established elsewhere in the Constitution or federal 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 establish a section 

1983 claim, a plaintiff "must demonstrate a violation of a right 

secured by the Constitution and the laws of the United 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 substantive due 

process guaranteed by the Fourteenth Amendment. 

 In DeShaney v. Winnebago Co. Dep't of Social Serv., 489 
U.S. 189, 197 (1989), the Supreme Court considered whether the 

due process clause of the Fourteenth Amendment imposed upon the 

state an affirmative duty to protect an individual against 

private violence where a special relationship exists 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 certain limited 

circumstances, such as when the state takes a person into its 

custody and holds him there against his will. Id. at 199-201. 

The Court explained: 

 In the substantive due process analysis, it 

 is the State's affirmative act of restraining 

 the individual's freedom to act on his own

 behalf--through incarceration, 

 institutionalization, or other similar 

 restraint of personal liberty--which is the 

 "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 principle to the 

facts in DeShaney, the Court did not find a due process violation 

as the harms suffered by the child occurred while he 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 district court 

that the special relationship required by DeShaney did not exist 

between Samantha and the police officers. We disagree, however, 

with the holding of the district court insofar as it adds a 

special relationship requirement to the state-created danger 

theory. In DeShaney, the Supreme Court left open the 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 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. 

Several of our sister courts of appeals have cited this comment 

by the Court as support for utilizing a state-created 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. Gardner, 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). Moreover, two 

other courts of appeals, in decisions predating DeShaney, 

recognized the state-created danger theory as a basis for 

establishing a constitutional claim under section 1983. 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. 938 (1990). 

 In previous cases, we have considered the possible 

viability of the state-created danger theory as a mechanism 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. Middle 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 individual of her 

Fourteenth Amendment right to substantive due process. 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 area. 

 In the 1990 case of Brown v. Grabowski, supra, Deborah 

Evans had been abducted and murdered by her former live-in 

boyfriend, Clifton McKenzie. Prior to the abduction, McKenzie 

had held Evans hostage for three days, during which he repeatedly 

threatened and sexually assaulted her. Although Evans and her 

family reported this information to the local police, criminal 

charges were never filed. Shortly thereafter, Evans was abducted 

and imprisoned in the trunk of her car where she froze 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 Grabowski, in 

failing to file criminal charges against McKenzie and in failing 

to inform Evans of her right as a victim of domestic violence to 

obtain a restraining order against McKenzie, violated 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 basis for 

imposing constitutional liability under section 1983. In Wood, a 

police officer stranded the female passenger of a drunk 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, the passenger 

accepted a ride from a stranger who took her to a secluded area 

and raped her. The Court of Appeals for the Ninth Circuit held 

that the plaintiff had raised a triable issue of fact 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 distinguishable 

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 Circuit in 

Cornelius validated the use of the "special danger" theory as a 

basis for establishing a constitutional violation under 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 held hostage and 

terrorized for three days before being abandoned in another 

state. She subsequently commenced a civil rights action against 

various prison and town officials, alleging they owed 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 supervise 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 dangerous 

situation by establishing the work squad and assigning inmates to 

work around town hall. Id. at 356. Moreover, because of her 

position as town clerk, Mrs. Cornelius was regularly exposed to 

prison work squads, thereby increasing her vulnerability to harm. 

Id. These two factors taken together "effectively operated to 

place [Mrs. Cornelius] in a position of danger distinct 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 imposed 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 establish a 

constitutional claim based on the special danger theory. 880 

F.2d at 353 and 358. The court of appeals found the employees at 

the town hall, including Mrs. Cornelius, "were well within the 

identifiable radius of harm known to defendants," and thus 

concluded that these facts created a triable issue as to special 

danger. Id. at 359. 

 We found Wood and Cornelius to be distinguishable from 

the facts in Brown -- in the former cases, the state defendants 

affirmatively acted to create the danger to the victims; the 

plaintiff in Brown, however, failed to offer any evidence that 

the police officers acted to create or to exacerbate the danger 

that the former boyfriend posed to the victim. 922 F.2d at 1116. 

The plaintiff demonstrated only that Detective Grabowski failed 

to advise the victim of her right to seek a protective order. 

Id. Thus, we concluded in Brown that the plaintiff had failed to 

establish a cognizable constitutional claim under section 1983. 

 In 1992, sitting in banc, we considered the statecreated danger theory in D.R. by L.R. v. Middle Bucks 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 brought a civil 

rights action against the school district and several school 

officials and employees, alleging that the defendants created the 

danger that resulted in a violation of the plaintiffs' 

constitutional rights. In support of this claim, plaintiffs 

argued that the school defendants "`created a climate which 

facilitated sexual and physical abuse of students'" and, having 

thrust plaintiffs into this situation, "were obligated to protect 

them from violations of their personal bodily integrity by other 

students who were also under defendants' control." Id. at 1373. 

 In D.R., we recognized that the state-created danger 

theory had been utilized by several courts of appeals to find a 

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

inquiry as "whether the state actors involved affirmatively acted 

to create plaintiff's danger, or to render him or her more 

vulnerable to it." Id. (citation omitted). We continued that 

"[l]iability under the state created danger theory is predicated 

upon the states' affirmative acts which work to plaintiffs' 

detriments in terms of exposure to danger." Id. at 1374. We 

quoted the following comment from the Court of Appeals for the 

Seventh Circuit: 

 We do not want to pretend that the line 

 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 that 

 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 (7th Cir. 

1982)). 

 We concluded in D.R. that the facts presented did not 

show that the defendants created the students' danger, increased 

their risk of harm, or made them more vulnerable to the assaults. 

Id. Moreover, we found the state-created danger line of cases to 

be factually distinguishable in a critical respect: in the cases 

where the courts imposed a constitutional duty based on a statecreated danger, the state had affirmatively acted to create the 

danger. Id. In D.R., we found that the harm to the students 

resulted solely from the acts of private individuals, and not 

from the type of intermingling between state conduct and private 

violence that imposed liability in Wood and Cornelius. Id. at 

1375. The acts or omissions of the school defendants in D.R., we 

concluded, did not rise to the level of affirmative action 

required to impose liability under the state-created danger 

theory. 

 In the 1994 case of Fagan v. City of Vineland, 22 F.3d 

1296 (3d Cir. 1994) (in banc) (Fagan II), the plaintiffs claimed 

their constitutional rights to substantive due process were 

violated when police officers recklessly conducted a high speed 

pursuit in violation of the Attorney General's guidelines. The 

plaintiffs also alleged that the municipal defendant was liable 

because it followed a policy of not properly training and 

supervising police officers in conducting high-speed pursuits, 

and because it followed a policy of not enforcing the pursuit 

guidelines. The sole issue before us was the appropriate 

standard by which to judge police conduct in pursuit cases 

alleging a violation of substantive due process. Id. at 1299. 

We held that the appropriate standard to be applied in police 

pursuit cases involving an alleged violation of substantive due 

process is the "shocks the conscience" test. Id. at 1303. 

 In Fagan II, we declined to consider the applicability 

of the DeShaney line of cases which imposed a constitutional duty 
in limited situations, i.e., special relationship or custody 

cases, to police pursuit cases, as this issue was not raised by 

the parties or addressed by the district court. Id. at 1308 n.9. 

Moreover, the plaintiffs in Fagan II did not advance the statecreated danger theory as a basis for establishing a

constitutional violation. Thus, neither the district court nor 

our court had the opportunity in Fagan II to review the viability 

of the state-created danger theory. We believe that the Fagan IIshocks 

the conscience standard is limited to police pursuit 

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 Hatboro, supra, 

we suggested a test for applying the state-created danger theory. 

We found that cases predicating constitutional liability on a 

state-created danger theory have four common elements: 

 (1) the harm ultimately caused was 

 foreseeable and fairly direct; (2) the state 

 actor acted in willful disregard for the 

 safety of the plaintiff; (3) there existed

 some relationship between the state and the 

 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 cases where the 

state-created danger theory was applied were based on discrete, 

grossly reckless acts committed by the state or state actors 

using their peculiar positions as state actors, leaving a 

discrete plaintiff vulnerable to foreseeable injury." Id. at 

1153. Those courts which have recognized the state-created 

danger theory have employed a deliberate indifference 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-created 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 borough'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 when 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, and 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 elements we set 

forth in Marks for the state-created danger theory. First, the 
injuries to Samantha were foreseeable -- Dr. Saferstein stated in 

his report that at a blood alcohol level of .25%, Samantha's 

muscular coordination was seriously impaired. Joseph'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 Samantha'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 separated from Joseph 

while in a highly intoxicated state in cold weather was indeed 

foreseeable. 

 Second, we find the plaintiffs have adduced sufficient 

evidence to raise a material issue as to whether Officer Tedder 

acted in willful disregard for Samantha's safety. The plaintiffs 

presented evidence regarding Samantha's level of intoxication and 

impairment; by Officer Tedder's own testimony, he admitted that 

he knew Samantha was drunk. Moreover, Tedder's statement that he 

sent Samantha and Joseph home together is contradicted by the 

testimony of Joseph, Officer Healy and Tina Leone. 

 We also believe the legal guardians have proved the 

third element -- a relationship between the state and the person 

injured (here Officer Tedder and Samantha and Joseph Kneipp) 

during which the state places the victim in danger of a 

foreseeable injury. Mark, 51 F.3d at 1153. Here it is alleged 

that Officer Tedder, exercising his powers as a police officer, 

placed Samantha in danger of foreseeable injury when he sent her 

home unescorted in a visibly intoxicated state in cold weather. 

A reasonable jury could find that Officer Tedder exerted 

sufficient control over Samantha to meet the relationship 

requirement. 

 Finally, there is sufficient evidence in the 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 vulnerable 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 intoxicated state in 

cold weather, made Samantha more vulnerable to harm. It is 

conceivable that, but for the intervention of the police, Joseph 

would have continued to escort his wife back to their 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 result 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 final 

requirement of Mark was satisfied here. 

 We find additional support for our position in the 

courts of appeals' decisions previously cited. See Reed v. 

Gardner, 986 F.2d at 1127 (police officer who removed 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 restraining 

order, created the danger which resulted in the victims' deaths 

and thus deprived victims of their constitutional rights); White 

v. Rockford, 529 F.2d at 385 (police officers who arrested uncle 

for drag racing and left minor children alone in abandoned 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 stands the en 

banc decision of the United States Court of Appeals for the 

Eighth Circuit in Gregory v. City of Rogers, Arkansas, 974 F.2d 

1006 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993). 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 police allowed the 

designated driver to drive the car to the police station. The 

intoxicated passengers remained in the car, which was parked in 

front of the police station, while the designated driver 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. Plaintiffs 

contended that the police officer actively placed the passengers 

in danger by permitting them to stay in the car unattended while 

waiting for the designated driver at the police station "`in 

spite of their obviously intoxicated condition.'" Id. at 1009- 

10. 

 In Gregory, the plaintiffs' argument turned on whether 

the police officer knew or should have known the passengers were 

intoxicated. The court of appeals found that the plaintiffs 

failed to submit sufficient evidence which would lead a 

reasonable trier of fact to conclude that the police officer knew 

or should have known that the passengers were intoxicated and 

unfit to drive, and thus, upheld the district court's grant of 

summary judgment. The court of appeals, however, did not end its 

analysis there. It went on to say that even if the police 

officers knew the passengers were intoxicated, a reasonable jury 

could not find that the police officer affirmatively 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 danger by leaving 

the keys in the car when he went into the police station. Id. at 

1012. To impose a duty on the police to take affirmative action 

to protect the passengers, the court held, would circumvent the 

general rule that plaintiffs do not have a constitutional right 

to be protected by the police against harm inflicted by third 

persons. Id. (citing Wells v. Walker, 852 F.2d 368, 370 (8th 

Cir. 1988), cert. denied, 489 U.S. 1012 (1989); DeShaney, 489 
U.S. at 195-96). 

 Gregory, however, is distinguishable from this case in 

two respects. First the court of appeals in Gregory found that 

the police officer did not know that the passengers were 

intoxicated -- neither the testimony of the witnesses, 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 observed 

staggering, walking and standing with difficulty, requiring that 

she lean on parked cars or be carried by her husband. 

 The second distinction is who created the danger -- in 

Gregory, the court found that the third party created the danger 

by leaving the keys in the car; in the case before us, the police 

officers intervened to cut off Samantha's private source of 

protection by giving Joseph permission to go home alone, thereby 

increasing the danger that Samantha would suffer harm in her 

visibly intoxicated state when they abandoned her. The 

affirmative acts of the police officers here created a dangerous 

situation, requiring that they take additional measures to ensure 

Samantha's safety. That they failed to take the appropriate 

measures, knowing that Samantha was severely intoxicated, shows 

that the police officers acted with reckless disregard for her 

safety. On the other hand, the conduct of the police officer in 

Gregory did not rise to a level of recklessness. He did not know 

the passengers were drunk; nor did he take any affirmative action 

to create the dangerous situation -- leaving the keys in the car. 

Put another way, the passengers in Gregory were never 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. Clearly then, 

because of these two important distinctions, Gregory 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 liability for a 

constitutional tort under section 1983. We are convinced, after 

reviewing the pertinent caselaw, that no such duty exists in 

Pennsylvania. Even so, the failure to arrest Samantha would 

not give rise to a constitutional claim, as liability under 

section 1983 can be predicated only on violations of "federal 

statutory or constitutional rights under color of state law." 

D.R., 972 F.2d at 1375 (citations omitted). The illegal 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 viable mechanism 

for establishing a constitutional claim under 42 U.S.C. § 1983. 

When viewed in the light most favorable to the legal guardians, 

the evidence submitted was sufficient to raise a triable issue of 

fact as to whether the police officers affirmatively placed 

Samantha in a position of danger. The district court erred, 
therefore, in granting summary judgment for the defendant police 

officers based on its finding that a constitutional violation had 

not occurred. 

 IV. 

 The plaintiffs also argue that liability should be 

imposed under section 1983 against the City of Philadelphia for 

constitutional violations as a result of the City's acquiescence 

in the longstanding policy, custom or practice of not granting 

"activity credits" for taking intoxicated individuals into 

custody, and its failure to adequately train its police officers 

in the proper care of intoxicated persons. By so doing, 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." Consequently, Samantha's 

right to substantive due process and her liberty interest in 

personal security guaranteed by the Fourteenth Amendment were 

allegedly violated. 

 We do not believe the district court adequately 

considered the appropriate legal standard in granting the City's 

motion for summary judgment. Although we feel compelled 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 solely 

 by its employees or agents. Instead, it is 

 when execution of a government's policy or

 custom, whether made by its lawmakers or by 

 those whose edicts or acts may fairly be said 

 to represent official policy, inflicts the

 injury that the government as an entity is

 responsible under § 1983. 

Id. at 694. Accordingly, the Supreme Court expressly 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 for 

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 was never 

sought for her. Following her release from custody, Mrs. Harris 

was taken to a hospital by her family, where she was diagnosed as 

suffering from several emotional injuries. In concluding 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 violation, the 
Court rejected the City of Canton's argument that only 

unconstitutional policies are actionable under the civil rights 

statute. Id. at 387. As to the degree of fault required to 

impose liability for the municipality's inaction, the Court 

articulated the following rule: "the inadequacy of police 

training may serve as the basis for section 1983 liability only 

where the failure to train amounts to deliberate indifference to 

the rights of persons with whom the police came into contact." 

Id. at 388 (footnote omitted). The Court further explained: 

 Only where a municipality's failure to train 

 its employees in a relevant respect evidences 

 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" choice 

 by a municipality -- a "policy" as defined by 

 our prior cases -- can a city be liable for 

 such a failure under § 1983. 

Id. at 389. In addition to proving deliberate indifference, the 

Court held that the plaintiffs must show that the "deficiency in 

training actually caused the police officers' indifference to 

[the individual's] medical needs." Id. at 391. 

 Recently, we had the opportunity to examine 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 sufficient 

evidence had been presented for a jury to infer that 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 government 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 action" 

 issues an official proclamation, policy, or 

 edict. A course of conduct is considered to 

 be a "custom" when, though not authorized by 

 law, "such practices of state officials [are] 

 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). Moreover, a 

prerequisite to establishing liability in either situation is a 

showing that a policymaker was responsible either for the policy 

or, through acquiescence, for the custom. Id. See also Jett v. 

Dallas Independent School Dist., 491 U.S. 701 (1989); Bielevicz 
v. 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, unreviewable 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 identified 

 by the plaintiff's evidence. Practices "`so 

 permanent and well settled' as to have `the 

 force of law' [are] ascribable to municipal 

 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 municipal liability 

under section 1983. Id. A plaintiff must also establish that 

the government policy or custom was the proximate cause of the 

injuries sustained. Id. (citation omitted). "To establish the 

necessary causation, a plaintiff must demonstrate a `plausible 

nexus' or `affirmative link' between the municipality's custom 

and the specific deprivation of constitutional rights at issue." 

Id. (citation omitted). To the extent that the "causal link" is 

not too attenuated, the jury must decide whether the government 

policy or custom proximately caused the constitutional violation. 

Id. 

 Here, the district court dismissed the municipal 

liability claims against the City of Philadelphia on the basis 

that the plaintiffs failed to establish an underlying 

constitutional violation pursuant to section 1983. It does not 

appear that, in so ruling, the district court considered the 

substantive elements of the municipal liability claims -- whether 

(1) the City of Philadelphia's training program for handling 

intoxicated persons was adequate; (2) if the training program was 

inadequate, the City was deliberately indifferent to the 

deficiency; and, (3) the deficiency in the training actually 

caused the police officers' indifference to Samantha's 

intoxication and need for assistance. The precedent in our 

circuit requires the district court to review the plaintiffs' 

municipal liability claims independently of the section 1983 

claims against the individual police officers, as the City's 

liability for a substantive due process violation does not depend 

upon the liability of any police officer. Fagan v. City of 

Vineland, 22 F.3d 1283, 1293-94 (3d Cir. 1994) (Fagan I) (citing 

Simmons v. City of Philadelphia, 947 F.2d 1042, 1063 (3d Cir. 

1991), cert. denied, 503 U.S. 985 (1992)). Accordingly, on 

remand, the district court must evaluate the municipal liability 

claims in light of the standards set forth above, notwithstanding 

the outcome as to the claims against the individual police 

officers. 
 V. 

 In conclusion, we find that the evidence presented, 

when viewed in the light most favorable to the legal guardians, 

together with all reasonable inferences on their behalf, could 

support a jury's verdict in their favor as to the constitutional 

violations alleged against the individual police officers. 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 municipal liability 

claims against the City of Philadelphia in light of our opinion. 

_________________________