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GOVERNMENT — Civil Rights — State-Created Danger A-56-01T1; Appellate Division; opinion by Skillman, P.J.A.D.; decided and approved for publication February 6, 2003. Before Judges Skillman, Lefelt and Winkelstein. On appeal from the Law Division, Camden County, No. 6481-99. [Sat below: Judge Little.] DDS No. 46-2-2752 Gustavo Rodriguez owned a grocery store in a high-crime area in Camden. Rodriguez’s brothers, Julio and Ricardo Jacques, worked in the store. The three men would usually open for business around 7 a.m. and close between 9 and 9:30 p.m. Around 9:30 p.m. on March 13, 1998, while the brothers were in the process of closing, a group of six to eight city officials arrived, including representatives of the licensing, health, fire and police departments, and told Rodriguez they were there to conduct an inspection. Expressing concern that a late-night inspection would create an increased personal safety risk for him and his brothers, Rodriguez asked the inspectors to return the next morning when the store opened for business. However, the inspectors insisted on conducting the inspection that night. When the inspection was completed approximately 90 minutes later, one of the inspectors issued Rodriguez a summons for operating without a license. As the inspectors were getting ready to leave, Rodriguez asked them to wait while he and his brothers reclosed the store, so they could all leave together under the protection of the armed members of the inspection team. However, the inspectors refused to delay their departure and left the store. Approximately five minutes later, as they were reclosing the store, the brothers heard the sound of the alarm in Rodriguez’s car. When Julio and Rodriguez left the store to look at the damage to the car, they were both shot. Only Julio survived. According to Julio, the shooting occurred approximately 10 minutes after the inspection team left the store. The person who shot them was never apprehended. Plaintiffs brought this action against Camden and the alleged individual members of the inspection team. Plaintiffs’ complaint asserted claims under the Civil Rights Act, 42 U.S.C.A. � 1983, as well as under state law. The trial court held that defendants could not be held liable under the state-created danger doctrine because plaintiffs’ proofs could not support a finding that defendants’ actions created an opportunity that otherwise would not have existed for the commission of a crime, that defendants “willfully disregarded” the brothers’ safety by refusing to stay until they reclosed the store, or that Rodriguez’s death and Julio’s injuries were a “direct result” of defendant’s actions. Accordingly, the court granted summary judgment dismissing plaintiffs’ complaint. Plaintiffs assert that the inspection team’s insistence on inspecting Rodriguez’s grocery store after its normal closing hour, and subsequent refusal to wait until Rodriguez and his brothers reclosed the store to provide them with an armed escort to Rodriguez’s car, constituted a violation of their substantive due process rights protected by the Fourteenth Amendment. Plaintiffs claim that this constitutional violation subjects the members of the inspection team and Camden to liability for Rodriguez’s death and Julio’s personal injuries resulting from the shootings. DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 193 (1989), held that a state’s failure to protect its citizens from acts of violence by private parties does not violate the due process clause of the Fourteenth Amendment. In DeShaney, social workers employed by a county agency, who had reason to believe a father was physically abusing his young son but failed to take any steps to remove the child from the father’s custody, were not liable for injuries the child suffered as a result of beatings by the father. Since DeShaney, a majority of federal circuit courts of appeal, relying on the Court’s observation that the defendant social workers in DeShaney “played no part in . . . creation” of the dangers faced by the young son at the hands of his father, id. at 201, have concluded that state and local officials may be held liable under � 1983 for death or injury suffered as a result of a “state created danger.” Because the Supreme Court has not yet recognized a cause of action for a “state-created danger,” there is no consensus among the federal circuits concerning its precise elements. Plaintiffs rely on the Third Circuit’s formulation of this doctrine in Kneipp v. Tedder, 95 F.3d 1199, 1205-09 (3d Cir. 1996), which requires a party asserting a state-created danger claim to establish four 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. 95 F.3d at 1208. Although the court is not required to follow the decisions of the Third Circuit or any other lower federal court on a question of federal law, the state-created danger doctrine constitutes a proper interpretation of the due process clause, and the court accepts the Third Circuit’s analytical framework for application of the doctrine. In Kneipp, the plaintiff and her husband were stopped by police officers for causing a disturbance while walking home from a bar. The plaintiff, who was considerably more intoxicated than her husband, was apparently the primary cause of the disturbance. Her husband told the officers that the couple had a babysitter watching their child, and asked for permission to return home so the babysitter could go home. The police officers agreed, but continued to detain plaintiff. According to plaintiff’s husband, he assumed when he left the scene that, because plaintiff was highly intoxicated, the police would bring her to the police station or a hospital. However, shortly after he left, the police released plaintiff to walk home by herself. Ninety minutes later, she was found at the bottom of an embankment close to her apartment suffering from hypothermia, which resulted in permanent brain damage. The Third Circuit concluded that these factual allegations stated a prima facie case against the police officers for violating the plaintiff’s liberty interest in personal security protected by the due process clause. In Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), the plaintiff was a passenger in a car being operated by a person arrested for driving while under the influence at 2:30 a.m. The arresting officer directed the plaintiff to get out of the car, which he impounded. The officer then placed the driver in the patrol car and drove away. According to the plaintiff, there were no open businesses in the area where the police officer left her, which had the highest violent crime rate in the county outside the city of Tacoma. The temperature was 50 degrees and plaintiff was wearing only a blouse and jeans. After starting to walk in the direction of her home, which was five miles away, the plaintiff accepted a ride from an unknown man, who drove to a secluded area and raped her. The court concluded that plaintiff had stated a viable claim of a substantive due process violation by the police officer who left her stranded on a highway in a high-crime area. Held: This case does not involve the same kind of aggravated official wrongdoing that was found to support the claimed violations of substantive due process rights in Kneipp and Wood. Even viewing the evidence in a light most favorable to plaintiffs, as required on a motion for summary judgment by defendants, plaintiffs could not establish two elements of a claim under the state-created danger doctrine — that the members of the inspection team “used their authority to create an opportunity that otherwise would not have existed for the third party’s crime to occur” and that they “acted in willful disregard for the safety of the plaintiff[s].” Kneipp, 95 F.3d at 1208. The underlying dangerous circumstance that created the opportunity for the shootings of Rodriguez and Julio Jacques was their employment in a store located in a high-crime neighborhood. The only difference between the dangers posed by their daily routine and the situation on the day of the shootings is that Rodriguez had to close the store approximately 90 minutes later than normal. Although it is assumed that there is some incremental increase in the dangers encountered by pedestrians in a high-crime neighborhood between 9:30 and 11 p.m., plaintiffs did not present any evidence from which a finding could be made concerning the magnitude of that increased danger. In fact, the only evidence plaintiffs presented of a higher violent crime rate late at night related to the hours after midnight. Furthermore, the three brothers could have walked the short distance to Rodriguez’s car or their homes together. Thus, the inspection team’s refusal to remain until the brothers reclosed the store to provide them with an armed escort to Rodriguez’s car did not create a situation of isolation and vulnerability comparable to the female passenger in Wood. Therefore, plaintiffs’ proofs could not support a finding that the members of the inspection team “used their authority to create an opportunity that otherwise would not have existed for the third party’s crime to occur.” Kneipp, 95 F.3d at 1208. For similar reasons, a trier of fact could not find that defendants “acted in willful disregard for the safety of the plaintiffs.” Ibid. The failure of the officials who conducted the inspection to accede to the brothers’ request to remain a short while longer and escort them to their car could be found to constitute negligence. However, “the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). The only form of official conduct that can be found to violate the due process clause is conduct that is so “egregious[ly]” wrongful that it “ shocks the conscience.” Id. at 846. Even a showing of “deliberate indifference” to public safety may be insufficient in some circumstances to satisfy this high threshold for liability under the due process clause. Id. at 849-54. Therefore, the inspection team’s refusal to remain in the grocery store for the additional time required to escort Rodriguez and his brothers to their car did not create such a substantial risk of harm to them that it could support a finding of a “willful disregard” for their safety. Plaintiffs also argue, without any citation to authority, that if the court rejects their federal constitutional claim, it should recognize a cause of action for a “state-created danger” under the New Jersey Constitution. There is no reason for the recognition of a state constitutional tort that would impose liability for state-created dangers under a broader range of circumstances than have been recognized by the federal courts. Although a state court is free to require greater protections under its own constitution than are mandated by the U.S. Constitution, the standards established in Kneipp for determining whether official conduct violates the due process clause sufficiently protect personal security interests. Affirmed. — Digested by Steven P. Bann [The slip opinion is 15 pages long.] For appellants — Mark S. D’Amore (John Calzaretto). For respondents — Marc A. Riondino, Assistant City Attorney (Dennis G. Kille, City Attorney; Jonathan E. Diego, Assistant City Attorney, on the brief).

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