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In a decision that narrows the “state-created danger” doctrine, the 3rd U.S. Circuit Court of Appeals has upheld the dismissal of a civil rights suit brought by a couple who said their baby died after choking on a grape because emergency workers showed up too late and weren’t properly trained. “States are not constitutionally obligated to provide rescue services to their citizens, nor are they constitutionally required to provide competent rescue services when they voluntarily choose to undertake this task,” 3rd Circuit Judge Richard L. Nygaard wrote. The ruling in Brown v. Commonwealth of Pennsylvania Department of Health is significant because it marks the first time the court has addressed the question of whether the Due Process Clause of the 14th Amendment “requires states to provide adequate or competent rescue services when they have chosen to undertake these services.” On April 22, 1998, Shacquiel Douglas, the 1-year-old son of Charmaine Brown and Oral Douglas, choked on a grape while being cared for by Angela Morris, his maternal aunt. Morris dialed 911 and says she was told that rescue workers were on their way. She placed two more calls — about four and eight minutes later — and rescue workers arrived about 10 minutes after the first call. Emergency medical technicians Mark Stewart and John Caffey took the child to Germantown Hospital and tried to restore his breathing during the trip. Once at the hospital, the grape was removed from Shacquiel’s throat, and he was transferred to St. Christopher’s Hospital for Children where he died two days later due to “asphyxia by choking.” Attorneys David J. Berney and Nancy G. Rhoads of Philadelphia’s Sheller Ludwig & Badey filed two lawsuits. The first suit, filed in the Philadelphia Court of Common Pleas, alleged state tort claims against the city and the two EMTs. When that suit was dismissed on summary judgment, they filed a federal civil rights suit, alleging that the city, Stewart and Caffey had violated the child’s 14th Amendment rights. U.S. District Judge Herbert J. Hutton, of the Eastern District of Pennsylvania, dismissed all claims against the city after finding that there was no evidence of “deliberate indifference” by city policymakers. Hutton found that the claims against the EMTs were precluded by the state court’s decision because they could have been raised in the first lawsuit. Now the 3rd Circuit has upheld Hutton’s decision on different grounds, finding that the constitutional theory of the suit was fatally flawed. “This case presents another example of a trend among plaintiffs who try to transmute their garden variety torts into cases of federal constitutional dimension,” Nygaard wrote in a decision joined by 3rd Circuit Judge Thomas L. Ambro and visiting 11th Circuit Senior Judge Phyllis A. Kravitch. Nygaard started his analysis with the U.S. Supreme Court’s 1989 decision in DeShaney v. Winnebago County Department of Social Services, which held that the Due Process Clause generally does not require the government to provide intervention or rescue services. Joshua DeShaney’s father had been awarded custody in divorce proceedings, and lawyers alleged that the Department of Social Services was aware that he was seriously abusing the boy. Eventually, Joshua’s father beat the 4-year-old child so severely that he suffered irreparable brain damage and will likely spend his entire life institutionalized. Nygaard found that the decision in DeShaney was a watershed in 14th Amendment jurisprudence. “If ever a set of facts cried out for intervention and protection from some person or entity, it was the facts in DeShaney. Nonetheless, the Supreme Court held that the state had no constitutional obligation to rescue Joshua DeShaney from his father’s cruelty,” Nygaard wrote. The justices, Nygaard said, noted that the plaintiffs were invoking the right to substantive — as opposed to procedural — due process by arguing not that they were deprived of life or liberty without the state following adequate procedural safeguards, but rather that the state was categorically required to prevent harm in certain instances. Since DeShaney, Nygaard said, courts have recognized two exceptions to its general rule that states are not required to provide protective or rescue services. The “special relationship” exception applies when the plaintiff is in some sort of state custody, such as prison or a state mental institution. And the so-called “state-created danger” exception applies where the state has caused the harm or made someone more vulnerable to an existing harm. Nygaard found that Brown and Douglas failed to satisfy the state-created danger test even if they might have a valid claim under state tort law. “It is hornbook tort law that although an individual generally has no duty to rescue, once voluntarily undertaken, a rescue must not be performed negligently,” Nygaard wrote. “One might infer from the general rule that, although the state is not constitutionally required to provide rescue services, once the state undertakes a rescue, it must do so competently as a matter of federal constitutional law. Such an inference, however, incorrectly conflates state tort law and federal constitutional law,” Nygaard wrote. “Although state tort law might provide a remedy for a state’s negligent rescue attempt, it neither logically nor legally follows that federal constitutional law must do the same.” Although the 3rd Circuit has not yet decided whether the Due Process Clause requires states to provide adequate or competent rescue services when they have chosen to undertake these services, Nygaard found that the 7th and 11th Circuits have held that it does not. “We too now hold that there is no federal constitutional right to rescue services, competent or otherwise,” Nygaard wrote. “The Due Process Clause does not require the state to provide rescue services, so it would be nonsensical to try to interpret that clause to place an affirmative obligation on the state to provide competent rescue services if it chooses to provide those services at all.” Plaintiffs, Nygaard said, could argue that because the 14th Amendment prohibits the state from depriving him of life or liberty without due process, it follows that the state cannot deprive him of life or liberty by its negligence. “This argument must fail, though, because the state played no part in the act — feeding Shacquiel the grape — that ultimately caused his death. The state’s negligence, if there was any, was merely that it failed to interrupt the event which ultimately killed him.” Nygaard also rejected the plaintiffs’ theory under the state-created danger test. Berney and Rhoads argued that the EMTs “created and/or increased a danger to the decedent that otherwise would not have existed.” Nygaard disagreed, saying “the danger facing Shacquiel Douglas was a grape that was stuck in his throat. Neither the Commonwealth nor the city nor Stewart and Caffey had anything to do with that; the danger already existed when Stewart and Caffey arrived on the scene.” Although Stewart and Caffey “may have failed to rescue Shacquiel successfully from that pre-existing danger,” Nygaard said, “we have already said that they had no constitutional obligation to do so.” Assistant City Solicitor Jane L. Istvan argued the appeal for the city and the EMTs and was joined on the brief by Deputy City Solicitor Richard G. Feder.

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