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The lawyers who were on the losing end in a 3rd Circuit decision last month on the scope of the “state-created danger” doctrine have succeeded in persuading the three judges on the panel that they might have gotten it wrong. In their brief asking for rehearing, attorneys David J. Berney and Nancy Rhoads of Sheller Badey & Ludwig argued that the Aug. 8 decision in Brown v. Commonwealth of Pennsylvania Department of Health “effectively abolishes” an entire category of state-created danger cases where the plaintiff’s theory is that the defendants “exacerbated” an existing danger. In a one-page order, the three judges have now vacated the decision and announced they will hold a rehearing. The order does not say whether the court will ask for additional briefs or hold a second oral argument. Berney and Rhoads represent Charmaine Brown and Oral Douglas, a couple who claim their 1-year-old baby, Shacquiel Douglas, died after choking on a grape because emergency workers showed up too late and weren’t properly trained. In three calls to 911, the suit alleges, the baby’s maternal aunt was repeatedly assured that help was “on its way,” but was never told that the two emergency medical technicians were not familiar with the local streets and had gotten lost. The EMTs arrived 10 minutes after the first call, the suit says, and although the grape was removed from the child’s throat during the rush to the hospital, he died two days later. In the first round of litigation, 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 also found that the civil rights claims against the two EMTs — Mark Stewart and John Caffey — were precluded by a prior state court’s decision that dismissed tort claims against them because the civil rights claims could have been raised in that first lawsuit. In August, the 3rd Circuit upheld Hutton’s decision on different grounds, finding that the constitutional theory of the suit was fatally flawed. Writing for a unanimous three-judge panel, 3rd Circuit Judge Richard L. Nygaard found that “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.” In the appeal, Berney and Rhoads had 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.” The opinion was joined by 3rd Circuit Judge Thomas L. Ambro and visiting 11th Circuit Senior Judge Phyllis A. Kravitch. In a petition for rehearing, Berney and Rhoads argued that Nygaard’s decision conflicted with well-settled 3rd Circuit law on the state-created danger theory. Now, in a rare move, the three-judge panel has vacated its decision and announced that it will rehear the appeal. Lawyers who lose federal appeals often refer to their next step as “going en banc” — meaning they’ll be asking for argument before all 12 judges on the court. But under court rules, the request is actually presented as a petition for rehearing before the original three-judge panel and a “suggestion for rehearing en banc.” Behind the scenes, all of the court’s active judges receive petitions, but the first vote is by the original three judges. If they decide to reconsider the case, the full court never votes. And that’s exactly what happened in Brown. Reading the tea leaves of such a court order is always risky business, but it would appear that the panel was persuaded by the petition and is now poised to reach a different result. In the petition, Berney and Rhoads argued that the panel’s decision conflicted with the 3rd Circuit’s leading case on the state-created danger doctrine, Kneipp v. Tedder, which was also premised on a theory that the defendants didn’t “create” the danger, but instead had “exacerbated” it. Sharon Kneipp and her husband were walking home from a night at a tavern when they were stopped by police. The suit said that after the husband was told to return home to relieve a baby sitter, the police then abandoned the inebriated Sharon Kneipp, who passed out in a snow bank and suffered serious brain damage. The suit said the husband assumed that police would escort his wife home, and that when she did not return, he assumed she had been arrested. The 3rd Circuit reversed a lower court’s decision to dismiss the case, finding that Kneipp had a valid claim under the state-created danger doctrine. Berney and Rhoads argued that Nygaard’s decision would limit state-created danger cases to those in which the state actors created the danger, and would abolish all claims premised on exacerbation of the peril. If the ruling were allowed to stand, they said, “this court will be the only jurisdiction in the country that has done so, as every federal circuit that has considered the issue has recognized the viability of state-created danger where the actor simply increases, as opposed to creates, the danger,” they wrote. The brief cited decisions from the 1st, 2nd, 5th, 7th, 9th and 11th circuits. In the Aug. 8 opinion, Nygaard focused on whether plaintiffs in civil rights suits can claim a right to competent rescue services. Although the government has no duty to provide rescue services, Nygaard found that the 3rd Circuit had not yet decided the more complex question of whether the due process clause requires a level of competence of those that choose to do so. Nygaard found that the 7th and 11th circuits have held that it does not, and that he agreed. “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.” But in their petition for rehearing, Berney and Rhoads argued that Nygaard missed the point of their claim. The focus of the suit, they said, was that the EMTs — and the city through its policies and training — had made the danger worse. The evidence, they said, showed that EMTs in “certain neighborhoods” have no familiarity with the area, while others receive six months of training that includes learning the streets in their sector. “Because the city knows that its rescue personnel need to be familiar with the streets in their assignments, the city’s policy of assigning EMTs to unfamiliar areas demonstrates deliberate indifference,” they wrote.

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