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In a significant expansion of the state-created danger theory, a federal judge has refused to dismiss a suit brought by a Philadelphia high school student who suffered brain damage when he was assaulted by 15 fellow students and alleges the attack could have been prevented if school officials had not covered up and ignored a two-year pattern of escalating violence in his school. In her 35-page opinion in Gremo v. Karlin, U.S. District Judge Anita B. Brody found that plaintiff Matthew Gremo met all four parts of the state-created danger test by alleging that school officials were aware of a specific pattern of violence at George Washington High School — in which gangs of students would throw a cloak over a student and kick and beat him — and did little to stop it. “The acts of the defendants in covering up the incidents of violence and failing to address the danger placed Gremo and other students at a greater risk of similar incidents such that it was foreseeable they would be attacked by the group of known students in the unmonitored common areas,” Brody wrote. “Therefore, the amended complaint … alleges sufficient information to meet the standard for foreseeability in the state-created danger context,” Brody wrote. But Brody dismissed all federal claims against the individual defendants named in the suit after finding they were entitled to qualified immunity because the law was not “clearly established” that such conduct could violate a student’s constitutional rights until her opinion in Gremo’s case. At the time of Gremo’s attack, Brody said, “the state of the law as to the state-created danger basis for constitutional liability … did not give the individual defendants fair warning that their treatment of Gremo was unconstitutional.” Instead, Brody said, a school official “could have reasonably believed that his or her actions and omissions would not violate a constitutional right.” Brody noted that, as of November 2001, the 3rd U.S. Circuit Court of Appeals had recognized the validity of the state-created danger theory in Kneipp v. Tedder, but had consistently rejected state-created danger claims in the school context. But after studying the 3rd Circuit’s decisions in D.R. v. Middle Bucks Area Vocational Technical School and Morse v. Lower Merion School District — as well as other appellate decisions applying the state-created danger test — Brody concluded that Gremo’s case was different. “Without a close analysis of D.R., Kneipp and Morse, as set forth in this opinion, a reasonable state actor could have understood the collective holding to be that state actors would not be constitutionally liable under the facts of the present case,” Brody wrote. “Therefore, although individual defendants in the present case would be constitutionally liable for a state-created danger, they are entitled to qualified immunity,” Brody wrote. The ruling is a victory for plaintiff’s attorney Stephen W. Bruccoleri, who argued that school officials ignored the findings of an investigation by the Pennsylvania House of Representatives two years before the attack on Gremo. Bruccoleri said the legislative investigation found a “long-standing pattern of denial of violence in the school system on the part of the School District of Philadelphia” and “an implied threat of retribution against any teacher or administrator willing to come forward and tell the truth about the level of violence.” In his brief, Bruccoleri said the report also concluded that school administrators, principals, teachers and security personnel had attempted to conceal violent incidents and under-report the number of violent assaults, and “an attitude and atmosphere on the part of the School District of Philadelphia that a certain level of violence was accepted and acceptable within the schools in that district.” According to court papers, Gremo was a senior honors student at George Washington High School when he was attacked in a school common area on Nov. 13, 2001, by a group of 15 students who threw a garment over his head and began repeatedly punching and kicking him. Gremo was left unconscious and later underwent cranial decompressive surgery for an epidural hematoma and a subdural hematoma in the vicinity. As a result of the attack, he is left with permanent brain damage. Doctors say he will have permanent loss of cognitive function, continued lapses of short-term memory and will need permanent medication. The suit alleges that the attack on Gremo was not an isolated incident, but followed a string of similar attacks perpetrated by the same group of students over a two-year period. Bruccoleri contends that, although the identities of the students and their method for beating victims were known to the school, there was no coordinated effort by school officials to discipline them, nor to secure or monitor the common areas where the incidents repeatedly occurred. The victims, Bruccoleri contends, feared violent retribution and, therefore, refused to pursue criminal prosecution. In a pair of motions, lawyers for the City of Philadelphia and the Philadelphia School District moved for dismissal of all Gremo’s constitutional claims. Deputy City Solicitor Jeffrey M. Scott and in-house school district attorney Suzanne McDonough argued that Gremo’s state-created danger theory failed to satisfy the 3rd Circuit’s four-part test. In Kneipp, the 3rd Circuit held that the plaintiff in a state-created danger case must prove four facts: The harm ultimately caused was foreseeable and fairly direct. The state actor acted in willful disregard for the safety of the plaintiff. There existed some relationship between the state and the plaintiff. The state actors used their authority to create an opportunity that otherwise would not have existed for the third party’s crime to occur. Brody found that Gremo’s allegations met the test. “The attack on Gremo can be said to be a ‘fairly direct’ result of defendants’ acts of ignoring, concealing and failing to address the violent attacks by the group,” Brody wrote. As contrasted with the mere inaction that was found by the 3rd Circuit to fall short of the test in prior cases, Brody found that the nature of the alleged acts and failures to act in Gremo’s case changed the analysis since they made have encouraged the violence. “It is reasonable to infer from the amended complaint that the 15 students in this case were encouraged by the defendants’ concealment and under-reporting of the violent assaults,” Brody wrote. “The allegations … indicate that most of the individual defendants persistently left common areas unmonitored with the knowledge that violent attacks were repeatedly occurring in those areas. That sends a very strong message that can reasonably be inferred to have encouraged the group of students in their attacks,” Brody wrote. If the allegations are true, Brody said, “the defendants who foresaw the danger of continued attacks by the group of students were acting with deliberate indifference when they concealed the attacks and failed to address the unmonitored common areas that were commonly the sites of the attacks.” Such conduct, Brody said, “may have informed the perpetrators that, even though the defendants knew of the violent incidents, they would not interfere. This was bolstered by the fact that the defendants not only ignored the concrete information they received about the attacks, but also tried to conceal that information.”

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