3rd Circ. Judges’ Call To Limit Gov’t Torts Raises Eyebrows

By Sarah Jarvis at Law 360

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Law360 (October 1, 2020, 7:53 PM EDT) — Recent calls from a pair of Third Circuit judges to reexamine and potentially narrow a legal theory used to hold governments liable for creating situations that injure or kill people has left some attorneys questioning the need to rework a doctrine they say is already difficult to successfully employ in court.

The calls came in concurring opinions filed last week in a decision affirming the dismissal of a personal injury suit against the city of Philadelphia brought by the estates of a family that died in an apartment fire after firefighters initially drove to the wrong location, then extinguished the blaze without knowing the family was waiting inside.

In his concurrence, Judge David A. Porter called for the full court to reassess the so-called state-created danger theory, saying he’s troubled by how it has expanded substantive due process over the years.

Judge Paul B. Matey, the author of the majority opinion dismissing the case, seconded that call in his own concurring opinion.

The judges believe the doctrine has lowered the bar to bring these types of tort actions against government employees and bodies, with Judge Matey saying the theory should be revisited and that making new legislation is Congress’ responsibility, not the court’s.

Thomas A. Lynam III of Villari Lentz & Lynam LLC is counsel for the plaintiff in the Third Circuit case. He said there was no exception in Pennsylvania’s Tort Claims Act that would have covered the victims’ estates in this case, so he had to argue using the state-created danger theory. He said if the theory were to be narrowed, there would be no way to hold municipalities accountable for their errors.

“Where is the incentive for the [fire] department to improve and better their systems so things like this don’t happen again? It’s just not there,” Lynam said.

He added that the theory is necessary and should be broader.

Under current case law, the Third Circuit requires four elements to meet the state-created danger theory: foreseeable and fairly direct harm; action marked by “a degree of culpability that shocks the conscience”; a relationship with the state making the plaintiff a foreseeable victim, instead of a member of the public in general; and an affirmative use of state authority in a way that created a danger or made others more vulnerable.

Judge Porter urged the full court to revisit its test for analyzing whether the government’s behavior “shocks the conscience,” saying circuit precedent has drawn “mystifying differences” between two categories of culpability under the doctrine.

In situations where an official is required to act “in a matter of hours or minutes,” the test requires that the official “disregard a great risk of serious harm.” And in situations where an official has time to make an unhurried judgment, the test requires an inference that the official acted with a “conscious disregard of a substantial risk of harm.”

He said there is no practical difference between those two standards, suggesting the categories should be combined to make the inquiry more straightforward, “assuming we continue to recognize the state-created danger doctrine at all.”

His proposed combined standard would be: “For a state actor to be liable in a ‘hyperpressurized environment requiring a snap judgment,’ he must actually intend to cause harm. But in any other context, the state actor must act with deliberate indifference that shocks the conscience.”

The majority opinion notes the state-created danger doctrine does not stem from the text of the Constitution or any other positive law.

The opinion references the 1989 U.S. Supreme Court decision in DeShaney v. Winnebago County Department of Social Services , a case in which county officials opted not to intervene after learning that a father was beating his son. The father’s final attack caused his son, Joshua, severe brain damage.

The high court rejected Joshua and his mother’s claim that the failure to intervene violated Joshua’s constitutional rights, holding that while the county “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.”

The Third Circuit panel that Judge Porter was a part of said lower courts have since seized on those words to create a new remedy intended to aid the next child in Joshua’s situation, adding that the Third Circuit and several others have recognized the state-created danger theory of liability.

Judge Porter said the Third Circuit has gone further than the Supreme Court by fashioning its own theory in this area and finding that governments could be liable for gross negligence in cases where the state does not have custody over someone.

But lawyers who have dealt with the theory say the bar for successfully bringing an argument under the doctrine is already high.

“On your best set of facts, it’s damn near impossible,” said Nicholas Szokoly, a personal injury attorney who practices in the area of constitutional torts with Murphy Falcon & Murphy in Baltimore.

Szokoly represents plaintiffs and defendants, but mainly plaintiffs in cases that raise constitutional questions. He said he’s not sure how much more narrow the theory could be without eliminating it completely.

Szokoly added that the rights behind the state-created danger theory are still in the Constitution, even if they aren’t explicitly stated. He noted that qualified immunity — which protects government officials from liability in civil cases, except when they violate a clearly established statutory or constitutional right — is also not in the Constitution.

“All we’re really talking about is, how do you find a way to protect the rights that are embodied in our constitutional framework from state action?” Szokoly said.

Cliff Rieders, a plaintiffs attorney with Rieders Travis Humphrey Waters & Dohrmann in Pennsylvania, said Judge Porter seems to think the Constitution doesn’t exist for recovering tort-like injuries as a result of neglect, and that he might be seeking to narrow the circumstances under which someone could bring state-created danger cases.

He said a narrowing of the state-created danger theory, combined with the Keystone State’s strong sovereign immunity statutes, would leave Pennsylvanians with no redress in these types of cases.

Bethany Tarpley of Jacks Griffith Luciano Attorneys at Law represents cities and counties in the Fifth Circuit — which does not recognize the state-created danger theory — and has faced state-created danger arguments from her opposition.

She said Judges Porter’s and Matey’s concurrences are not surprising because of President Donald Trump’s push to appoint more conservative justices and judges. Both judges are Trump appointees.

The more traditional reading of the Constitution expressed in the Third Circuit opinion aligns with that push, she said.

“I think we’ll see more circuits doing this as these new [judges] come into their own,” Tarpley said.

Robert Barnes of Barnes Law LLP in California tried to bring the state-created danger theory to the Supreme Court, which denied his petition for certiorari in February. He represented the estate of a 7-year-old girl who drowned in a swimming pond at a city park and whose body was found near a “deep well” in the murky pond.

The girl’s estate and family sued the city, parks director and lifeguards who were on duty. A Seventh Circuit panel affirmed a lower court ruling that the evidence wasn’t sufficient for a reasonable jury to find a due process violation premised on a state-created danger, according to court documents.

Barnes told Law360 the state-created danger theory is “utterly conflicted and confused” across the courts.

He said in his high court petition that some circuits refuse to recognize that a state-created danger can ever violate the due process protections of life, liberty and property, while others conflict on what elements are required for such claims, noting Seventh Circuit plaintiffs must prove specific individuals acted with criminal intent.

“The state-created danger doctrine is being unduly constricted, especially where the state voluntarily undertakes to replace the private sector in providing certain benefits and amenities it makes unduly unsafe, for which it rationalizes expanding state power and increasing tax obligations in the first instance,” Barnes said.

Laura Oren, a professor with the University of Houston Law Center who works in civil rights and family law, said the focus on how much an action shocks the conscience is the wrong way to approach the theory, and that judges should be looking for an abuse of state power instead.

Oren called the concurring opinions a scare tactic and Judge Porter’s characterization of the expansion of substantive due process a gross exaggeration that could discredit an important constitutional right. She said it’s hard to get past the beginning of a case using the state-created danger theory, let alone to win.

“It sort of made me laugh,” she said of reading the Third Circuit’s concurring opinions. “It’s not like there are a million cases in which there was any success under this theory, so it’s not like you can say this has been overdone.”

Oren agreed with Judge Matey’s concurring opinion that the 14th Amendment’s due process clause doesn’t transform every tort committed by a state actor into a constitutional violation.

But she said in cases where a state official acted recklessly or deliberately indifferent but was shielded by sovereign immunity, it sends a message that the government can do whatever it wants without redress.

“That, to me, is an abuse of state power,” she said.

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