Although the law in the Third Circuit is muddled as to how far the state-created danger theory reaches into the arena of high school sports, the appeals court declined to settle it with a case brought by a cheerleader who got a head injury during practice.
Instead, the court stuck to the narrow question of whether or not the law at the time of the incident was sufficiently clear to put the coach on notice that she would have to adhere to certain safety procedures during practice. That standard was not clear, the U.S. Court of Appeals for the Third Circuit ruled, thus conferring qualified immunity on the coach.
Heather Hinterberger, who was seriously injured as a freshman in 2004, filed a Section 1983 suit advancing a state-created danger theory against the Iroquois School District and the volunteer cheerleading coach, Sally Loftus. A federal judge in the Western District of Pennsylvania had granted the district’s motion for summary judgment but found that Loftus wouldn’t be entitled to qualified immunity.
Loftus appealed to the Third Circuit and, in an opinion issued as not precedential, the court agreed with her and granted her qualified immunity.
“Hinterberger claimed that Loftus’ conduct constituted a ‘state-created danger,’ rendering Loftus liable for a substantive due process violation, under 42 U.S.C. § 1983,” Judge Marjorie Rendell wrote on behalf of the three-judge appeals panel in Hinterberger v. Iroquois School District.
“Specifically, Hinterberger alleged that Loftus’ decision to introduce a new cheerleading stunt without adherence to accepted safety procedures, namely the use of padded mats, constituted an affirmative act of ‘deliberate indifference’ that shocked the conscience, thus violating Hinterberger’s substantive due process right of bodily integrity,” Rendell explained.
About seven months after the cheerleading squad had seen other teams at a competition perform a “twist down cradle” stunt and asked Loftus if they could add it to their routine, Loftus complied. She asked an accomplished cheerleader from another school to help teach the new stunt and, with six to eight spotters in addition to the four “base” cheerleaders who would catch Hinterberger after she was thrown into the air to rotate, the squad did the stunt about half-a-dozen times before Hinterberger fell to the hard floor, which didn’t have a mat, according to the opinion.
Loftus argued that she wasn’t deliberately indifferent and claimed qualified immunity, according to the opinion.
“When a claim of qualified immunity is asserted, a court must determine (1) whether the facts alleged by plaintiff make out a violation of a constitutional right, and (2) whether the right was clearly established at the time of the injury,” Rendell said, citing the 2009 U.S. Supreme Court opinion, Pearson v. Callahan, that gives the court the discretion to take those two prongs in the order they see fit.
“Because we find the issue of clearly established law to be dispositive, we confine our analysis to that issue,” Rendell said.
The decisions from district court judges that the trial court judge had cited to support his denial of qualified immunity to Loftus were too different from Hinterberger’s case to be relied upon, Rendell said, explaining that they “would not have informed a reasonable person in Loftus’ position that the failure to take certain precautions in a high school cheerleading practice would amount to a constitutional violation.”
Also, Rendell said in a footnote, at the time of the incident, the Pennsylvania Interscholastic Athletic Association didn’t recognize cheerleading as a sport—so, the governing body for high school sports in the state had no rules for cheerleading.
Further, Rendell said, “Hinterberger does not cite, and we have not found, any precedential circuit court decisions finding a state-created danger in the context of a school athletic practice.”
In a footnote, Rendell said, “Cases decided in this circuit after Hinterberger’s accident have not been models of clarity as to whether a state-created danger claim can be successfully maintained in the context of school sports.”
After citing about half-a-dozen cases, Rendell said, “The differing outcomes in these cases further undermines Hinterberger’s contention that Loftus should reasonably have understood her actions in March 2004 to violate a constitutional right.”
But the court declined to go a step further and clarify the permitted reach of the state-created danger doctrine for the circuit after it decided that Loftus had satisfied the standard for qualified immunity.
However, Thomas Myers of Nichols & Myers in Erie, Pa., who represented the Hinterbergers, said that it isn’t surprising that different district courts have produced different outcomes when presented with state-created danger arguments since they are decided on the facts of each specific case. Differing outcomes among the district courts doesn’t necessarily indicate that the state-created danger analysis hasn’t been similarly applied, he said.
The next step for the case would be for the Hinterbergers to seek rehearing en banc from the Third Circuit, but, Myers said that it has been a long time for the family to be involved. He said he isn’t sure if they will pursue rehearing.
Richard Lanzillo of Knox McLaughlin Gornall & Sennett in Erie, Pa., represented Loftus and thought that the court “took an appropriately narrow and conservative approach,” in light of the Supreme Court’s direction in Pearson.
(Copies of the 10-page opinion in Hinterberger v. Iroquois School District, PICS No. 13-3287, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •