and 02-3916 MILAGROS RIVAS, Individually v. City of Passaic

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
__________
Nos. 02-3875 and 02-3916
__________
MILAGROS RIVAS, Individually and
as Administrator ad Prosequendum of
the ESTATE OF CARLOS RIVAS;
AMAUREY RIVAS; SAGRARIO
RIVAS; CARLOS RIVAS, JR.;
AMINABEL RIVAS; PALOMA
RIVAS
v.
CITY OF PASSAIC; PASSAIC
POLICE DEPARTMENT; CITY OF
PASSAIC-EMT DIVISION; ROSS
CAPUANA, POLICE OFFICER, #234;
PAUL SLATER, POLICE OFFICER,
#283; ROBERT CALLAGHAN,
POLICE OFFICER, #271; G.
CACERES, POLICE OFFICER, #307;
FARALLO, POLICE OFFICER, #299;
O'DONNELL, POLICE OFFICER,
#301; ROBERT LONGO, POLICE
OFFICER, #261; GEORGE GARCIA,
EMT; AMALIN RODRIGUEZ, EMT;
MIKE LOVITCH, PARAMEDIC; BILL
WALSH, PARAMEDIC;
PASSAIC-CLIFTON MICU; JOHN
DOES I THROUGH X
George Garcia; Amalin Rodriguez,
Appellants,
02-3875
*City of Passaic; *Passaic Police
Department; Police Officer Paul
Slater, #283; Police Officer
Ross Capuana, #234; Police
Officer Robert Callaghan, #271;
Police Officer Farallo, #299;
Police Officer O’Donnell, #301;
Police Officer Robert Longo, #261,
Appellants 02-3916
*Dismissed per Court Order dated
2/27/03
_________
On Appeal from
the United States District Court for the
District of New Jersey
Civil Action No. 99-CV-3523
District Judge: Honorable William Walls
__________
Argued on December 12, 2003
___________
Before: AMBRO, FUENTES, and
GARTH, Circuit Judges
(Filed: April 26, 2004)
__________
David L. Ganz, Esq. (Argued)
Ganz & Savin, LLP
Five Ryder Road
Fair Lawn, New Jersey 07410
Counsel for Appellants Garcia and
Rodriguez

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Peter W. Till, Esq. (Argued)
Law Offices of Peter W. Till
105 Morris Avenue, Suite 201
Springfield, New Jersey 07081
Counsel for Appellant Farallo
Anthony J. Fusco, Jr., Esq.
Fusco & Macaluso
150 Passaic Avenue
P.O. Box 838
Passaic, New Jersey 07055
Counsel for Appellant O’Donnell
Nicholas J. Palma, Esq.
1426 Broad Street
Clifton, New Jersey 07013
Counsel for Appellant Slater
Joel M. Miklacki, Esq.
300 Broadacres Drive, 3rd Floor
Bloomfield, New Jersey 07003
Counsel for Appellant Callaghan
Miles Feinstein, Esq.
1135 Clifton Avenue
Clifton, New Jersey 07013
Counsel for Appellant Capuana
Kathleen C. Goger, Esq. (Argued)
Singer & Goger
Renaissance Towers
111 Mulberry Street
Townhouse 1-A
Newark, New Jersey 07102
Counsel for Appellees
_______________________
OPINION OF THE COURT
_______________________
Garth, Circuit Judge:
This Section 1983 case focuses on
the conduct of a group of police officers
and medical professionals who
responded to an emergency in an
apartment where a middle-aged man was
experiencing a seizure. The seizure
victim, after being restrained, died
shortly after the police arrived, thereby
prompting a lawsuit by his family. The
District Court denied motions brought by
the police officers and the medical
professionals for summary judgment,
giving rise to this appeal. We hold that
there are certain material factual disputes
that must be resolved by a jury.
Accordingly, we will affirm the District
Court’s order with respect to EMTs
Amalin Rodriguez and George Garcia
and Police Officers Rosario Capuana,
Paul Slater, Robert Callaghan, Mauro
Farallo, and Timothy O’Donnell. We
will dismiss Police Officer Robert
Longo’s appeal.
I.
On the morning of November 6,
1998, Milagros Rivas awoke in bed to
find her 44-year-old husband, Carlos
Rivas, shaking uncontrollably. The
Rivases lived with their five children on
the second and third floors of a two-
family house in Passaic, New Jersey.
The house had an enclosed front porch,
from which a stairwell led up to the
Rivases’ apartment.

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A. The Initial Medical Response
Because Mrs. Rivas spoke poor
English, she asked one of her children to
call 911 for an ambulance. At
approximately 7:05 a.m., emergency
medical technicians (“EMTs”) George
Garcia and Amalin Rodriguez arrived on
the scene. They were met on the street
by Mrs. Rivas, who testified that she
immediately informed Rodriguez in
Spanish that her husband had
experienced some convulsions and that
he had previously had seizures. Mrs.
Rivas also testified that she advised
Rodriguez that Mr. Rivas was taking
diabetic medication and that Rodriguez
should not talk to or touch Mr. Rivas.
This last piece of information seems to
have been sound advice because
Rodriguez later testified that she had
learned as part of her medical training
that a patient experiencing a seizure
should not be disturbed during the
period of the seizure.
Rodriguez followed Mrs. Rivas
into the apartment while Garcia parked
the ambulance. Mrs. Rivas testified that
when they entered the apartment, she
found her husband standing in the living
room looking ashen. According to her
testimony, Mr. Rivas raised his arms in
front of him and began walking in their
direction “like a zombie,” but that she
and Rodriguez stepped out of his way.
Mrs. Rivas is adamant that her husband
never came into physical contact with
Rodriguez.
Rodriguez provides a very
different account of what transpired
when she first entered the apartment. In
a sworn declaration submitted to the
District Court, Rodriguez claimed that:
“Subsequent to my arrival, I was place
[sic] in eminent [sic] fear of my life
when Carlos Rivas attach [sic] me
without provocation, put his arm around
my neck, and attempted (my view at the
time) to strangle me.” This account was
corroborated by Garcia, who entered the
house after he parked the ambulance. He
testified that as he climbed the stairs to
the Rivases’ apartment he saw
Rodriguez and Mrs. Rivas run out of the
apartment into a small vestibule at the
top of the stairwell followed by Mr.
Rivas, who he claims came towards
Rodriguez and “put his hands on her
shoulders, like choking.”
Garcia claims he ducked under
Mr. Rivas’s arm and wedged himself
between Rodriguez and Mr. Rivas, so
that he could push Mr. Rivas back.
Garcia described Mr. Rivas, who stood
approximately 5 feet, 5 inches tall and
weighed 240 pounds, as “physically
strong.” Garcia even went so far as to
describe the situation as “life-
threatening.” Mrs. Rivas disputes these
statements as well, claiming that Garcia
“did not put his body weight against my
husband to protect [Rodriguez], since
there was nothing to protect her from.”
It is undisputed that Garcia told
Rodriguez to go into the apartment and
call for police backup. Meanwhile, Mr.

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Rivas walked through the living room
and into a bathroom, where he sat down
on a closed toilet and rested his head
against a windowsill. Garcia followed
closely behind and waited outside the
bathroom. After calling for backup,
Rodriguez questioned Mrs. Rivas in the
kitchen about her husband’s condition.
B. The Initial Police Response
The first two police officers to
respond to the request for assistance
were Robert Callaghan and Paul Slater.
Officer Callaghan testified that he and
Officer Slater were informed upon their
arrival by Garcia that a male patient
inside the apartment had assaulted
Rodriguez.1 Officer Callaghan also
testified that he and Officer Slater did
not receive “any information as to Mr.
Rivas’ physical condition,” but this was
disputed by Garcia and Rodriguez, who
signed an incident report which states
that: “Upon arrival of Police . . . EMT G.
Garcia informed the officer’s [sic] of the
patient’s medical history (diabetes and
possible seizure hx: RX: Rezulin).”
The two officers proceeded
directly to the bathroom, where they
found Mr. Rivas sitting on the closed
toilet. Officer Callaghan instructed Mr.
Rivas to leave the bathroom. Mr. Rivas
complied, but remained silent. It was
around this time that a third police
officer, Rosario Capuana, entered the
apartment. As the three officers escorted
Mr. Rivas through the kitchen, Officer
Slater claims to have noticed a large
knife on the kitchen table, prompting
him to remark, “There’s a knife on the
table. Let’s go into the living room.”
Officer Slater testified that when he
placed his hand on Mr. Rivas’s shoulder
to direct him into the living room, Mr.
Rivas became very aggressive and began
punching and pushing him in the chest.
Officers Slater and Callaghan claim they
reacted by trying to restrain Mr. Rivas,
and that they all fell to the floor of the
living room.
Mrs. Rivas, who was standing in
the kitchen when her husband exited the
bathroom, paints a very different picture
of what transpired. She agrees that one
of the officers grabbed her husband’s
shoulder as they walked through the
kitchen, but she claims her husband
merely pulled his shoulder away and that
he did not attack any of the officers. She
testified that the officers threw her
husband to the floor without any
provocation.
Officer Capuana provided yet a
third version. He testified that he was
walking in front of Mr. Rivas through
the kitchen when he suddenly heard
grunting noises behind him. When he
turned around, he saw Mr. Rivas
experience what appeared to be a
seizure, grunting and shaking violently.
At his deposition, Capuana could not
1 Officer Slater testified that it
was Rodriguez, not Garcia, who
informed them about the alleged assault.

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recall what Officers Slater and Callaghan
were doing at the time, but he was
confident that no one was touching Mr.
Rivas. He testified that Mr. Rivas fell to
the ground and began swinging violently
and kicking and that he (Officer
Capuana) and the other two officers tried
to control Mr. Rivas.
C. The Struggle to Restrain Mr. Rivas
The struggle on the living room
floor between Mr. Rivas, who fell onto
his stomach, and the three police officers
continued for several minutes. Officer
Slater, who was attempting to restrain
Mr. Rivas’s left arm, later described it as
“a life and death game of twister.”
Officer Callaghan, who says he was on
Mr. Rivas’s other side and was
attempting to restrain his right arm,
testified that Mr. Rivas was “extremely
strong, struggled violently and kept
pulling away.” The third officer,
Capuana, kneeled behind Mr. Rivas and
tried to pin down his legs. Officer
Capuana testified that Mr. Rivas lost
control of his bladder during the
struggle.
All three officers allege that at
one point during the struggle, Mr. Rivas
tried to grab Officer Callaghan’s pistol
from his holster. Officer Capuana
testified that Mr. Rivas “actually had it
palmed in his hand,” but that Officer
Callaghan was able to push Mr. Rivas’s
hand away. Mrs. Rivas disputes this
allegation, claiming that her husband,
who was on his stomach throughout the
struggle, merely reached around blindly
with his arm and touched Officer
Callaghan’s thigh. Officers Callaghan
and Slater also allege that they were
bitten by Mr. Rivas.2
Garcia and Rodriguez stayed out
of the fray, but observed most of the
altercation. Garcia remembers one of the
officers sitting on Mr. Rivas’s back,
around the waistline. He testified that
this officer yelled, “Don’t you see he’s
trying to get into my gun?,” and then
proceeded to strike Mr. Rivas in the face
with a flashlight. Towards the end of the
struggle, Garcia left the apartment to
retrieve a lightweight stretcher from the
ambulance.
Rodriguez remained in the
kitchen during the struggle. She did not
observe the officers and Mr. Rivas fall to
the floor, but she recalls seeing one of
the officers place his knee in the middle
of Mr. Rivas’s back. She also testified
that, during the struggle on the floor, one
of the officers shoved his flashlight into
Mr. Rivas’s mouth and left it there for
“[p]robably not even five minutes.”
2 This allegation is corroborated
to some extent by hospital records,
which show that Officers Slater and
Callaghan were both admitted to Passaic
General Hospital for treatment. The
records are somewhat difficult to read,
but it seems Officer Slater was treated
for a leg injury and Officer Callaghan for
a wrist injury.

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Mrs. Rivas also remained in the
kitchen during the struggle. She testified
that after the officers threw her husband
to the ground, Officer Callaghan sat on
his back with his knees straddling Mr.
Rivas’s torso. She alleges that the
officers repeatedly pushed Mr. Rivas’s
head into the carpet while they tried to
handcuff his wrists behind his back.
Mrs. Rivas testified that she kept yelling
at the police, “It’s not like that — he’s
very sick,” but that Officer Callaghan
stood up and yelled, “bitch shut your
mouth.” Mrs. Rivas’s daughter gave
similar testimony.
D. Mr. Rivas is Placed on a Stretcher
After several minutes passed, a
second wave of police officers arrived
on scene. They were Officers Mauro
Farallo, Timothy O’Donnell, Robert
Longo and Glisette Caceras. With their
assistance, the officers were able to
handcuff Mr. Rivas’s hands behind his
back and a short time later, Mr. Rivas
apparently came out of his seizure and
became still. Garcia returned to the
apartment and the officers picked Mr.
Rivas up and placed him face down on
the stretcher. Garcia knew from his
EMT training that the proper protocol is
to place a patient face up on a stretcher
to make sure the airway remains clear,
which is particularly important for a
seizure victim. Garcia later
acknowledged that he became concerned
about Mr. Rivas’s airway when the
officers placed him face-down on the
stretcher, but that he did not speak up
because he felt “the scene was taken
over by the police.” After the officers
placed Mr. Rivas on the stretcher, Garcia
bound his ankles with cloth restraints.
Once Mr. Rivas was secured in
the stretcher, Garcia helped the officers
carry him downstairs. They carried him
down the stairs head first, even though
EMTs are trained to carry patients down
stairs feet first. Again, Garcia did not
say anything to the police officers.
The Rivas family claims the
officers were making crude remarks like,
“Damn, he’s heavy, this pig, this dog,”
as they carried Mr. Rivas down the
stairs. Near the bottom of the stairwell,
one of the straps on the stretcher
apparently snapped and Mr. Rivas slid
out of the stretcher head first, struck his
head, and tumbled down the steps.
While he lay on the stairs, he lost control
of his bowels and defecated himself.
Officers Longo and O’Donnell grabbed
Mr. Rivas by his arms and slid him down
the remaining stairs and onto the front
porch.
Rodriguez, who was standing at
the top of the stairs, did not see Mr.
Rivas fall out of the stretcher, but she
heard the commotion and looked over.
The smell of vomit and feces quickly
overpowered her and she ran outside.
As she passed through the porch, she
saw Mr. Rivas laying on the floor with
some blood near his head.
Officer Longo testified that Mr.

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Rivas became combative on the porch.
He testified that, together with Officers
Farallo and O’Donnell, he held Mr.
Rivas down on the porch. Officer
Longo said he held Mr. Rivas down by
placing his body weight on top of Mr.
Rivas’s shoulders, and that the other
officers used similar means to restrain
Mr. Rivas.
E. The Paramedics’ Arrival
It was around this time that
paramedics Michael Lovitch and
William Walsh arrived. Walsh
immediately noticed Mr. Rivas lying
face down on the enclosed porch,
allegedly moving his head and arms in
an effort to resist the police officers who
were on top of him. While the
paramedics conferred with Rodriguez
and Garcia about Mr. Rivas’s medical
condition, Mr. Rivas suddenly became
very still and relaxed.
The officers carried Mr. Rivas to
an ambulance stretcher waiting on the
sidewalk and placed him face-down in
the stretcher, but Lovitch and Walsh
instructed the officers to turn Mr. Rivas
onto his back. When they did so,
Lovitch and Walsh discovered that Mr.
Rivas was not breathing and had no
pulse. They immediately placed Mr.
Rivas in the ambulance and began
administering advanced life support. En
route to the hospital, the paramedics
succeeded in reestablishing a pulse and
heart rhythm, but they could not get Mr.
Rivas to breathe on his own. At 8:20
a.m., Mr. Rivas was pronounced dead.
F. The Medical Examiner’s Report
Later that day, a Medical
Examiner conducted a postmortem
examination and autopsy of Mr. Rivas’s
corpse. He noted in his report that Mr.
Rivas’s two upper front teeth were
partially dislodged. The report also
noted a number of superficial contusions
and abrasions, but the Medical Examiner
did not find any evidence of trauma or
injury that would have contributed to
Mr. Rivas’s death. After a toxicology
report came back negative, the Medical
Examiner concluded that Mr. Rivas had
died from a “Cardio-Respiratory Arrest
Following Acute Psychotic Episode of
Undetermined Etiology,” i.e., Mr.
Rivas’s heart and lungs stopped
functioning following a period of intense
physical activity, with the cause of the
psychotic episode being unknown. The
manner of death was listed as “Natural.”
G. The Rivas Family’s Medical Expert
The Rivas family subsequently
hired Dr. Michael Baden, a well-known
forensic pathologist, to render a second
opinion on Mr. Rivas’s cause of death.
After reviewing all of the relevant
materials, Dr. Baden concluded that the
Medical Examiner had correctly found
that Mr. Rivas had experienced a
respiratory arrest resulting in cardiac
arrest. Dr. Baden believed, however,
that Mr. Rivas’s death followed “an
acute medical episode rather than ‘an

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acute psychotic episode’ and the etiology
was not ‘undetermined’ but due to
asphyxia caused by police action that
prevented Mr. Rivas from breathing.”
Dr. Baden therefore concluded that the
manner of death should have been listed
in the Medical Examiner’s report as a
homicide.
H. Ensuing Investigations
Several state and local agencies
investigated the events surrounding Mr.
Rivas’s death. One such investigation
was conducted by the New Jersey
Department of Health and Senior
Services (the “Health Department”),
which oversees the provision of basic
life support services by EMTs. The
Health Department reviewed the actions
taken by Rodriguez and Garcia and
ultimately determined that the care they
provided to Mr. Rivas “deviated
significantly from acceptable EMT-B
practice.” The Health Department cited
five instances of Rodriguez and Garcia’s
failure to follow proper procedure. They
were: (1) placing Mr. Rivas face down in
the stretcher; (2) not properly restraining
him in the stretcher; (3) carrying him
down the stairs head first; (4) failing to
take adequate spinal immobilization
precautions after Mr. Rivas fell from the
stretcher; and (5) not properly
completing a patient care report. The
Health Department concluded that these
five deviations “collectively
demonstrate[d] incompetence or inability
to provide adequate basic life support
services in violation of N.J.A.C. 8:40A-
9.6(a)(1),” and it placed Garcia and
Rodriguez on provisional status for six
months.
A separate investigation was led
by the Internal Affairs Division
(“Internal Affairs”) of the Passaic Police
Department. After interviewing a
number of witnesses and reviewing
various reports and dispatch tapes,
Internal Affairs concluded that the level
of force used by the police officers
“appeared to have been reasonable and
did not appear to be excessive.” In
reaching that conclusion, Internal Affairs
noted that the Medical Examiner’s report
contained no findings that suggested
excessive force had been used.
With respect to the EMTs,
Internal Affairs concluded that
Rodriguez had panicked and
misleadingly told the police officers that
Mr. Rivas had attempted to choke her,
when in fact he had merely touched her
shoulder. Internal Affairs also faulted
the EMTs for not furnishing the police
officers with adequate medical
information about Mr. Rivas’s condition
and for allowing the police to take
control of the scene.
The report issued by Internal
Affairs also addressed the allegation that
one of the police officers had struck Mr.
Rivas in the head with a flashlight. The
report noted that this allegation first
surfaced when Internal Affairs
interviewed Rodriguez and Garcia, but
that neither of them had mentioned a

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blow to Mr. Rivas’s head in their initial
written reports or interviews with the
Health Department. Based on those
omissions and the fact that Mrs. Rivas
did not see the officers strike her
husband, Internal Affairs concluded that
Rodriguez and Garcia had fabricated that
allegation “in order to shift the burden
away from the EMT’s and onto the
police personnel.”
I. The Rivas Family Files Suit
The Rivas family filed this
lawsuit in the District Court for the
District of New Jersey against the City of
Passaic, the Passaic Police Department,
the Passaic EMT Division, the
responding police officers, EMTs Garcia
and Rodriguez, and Paramedics Walsh
and Lovitch, Passaic-Clifton MICU
(Mobile Intensive Care Unit), and “John
Does I through X.” The amended
complaint alleges violations of both
federal and state law. The federal claim
is based on 42 U.S.C. § 1983, while the
state claims are based on common law
tort principles, such as failure to train
and supervise, failure to render medical
care, intentional and negligent infliction
of emotional distress, and assault and
battery. Following discovery, the City of
Passaic, the Passaic Police Department,
and all of the individual defendants
except Paramedics Lovitch and Walsh
and “John Does I through X” moved for
summary judgment.
The District Court granted
summary judgment to Officer Caceres,
but denied all of the remaining motions.
The District Court explained in an oral
opinion that it was denying summary
judgment “because of the factual
circumstances in contest.” The District
Court dismissed the Passaic Police
Department and the City of Passaic
EMT-Division because those two
defendants appeared to be departments
or divisions of the City of Passaic, which
remained responsible for their conduct.
With the exception of paramedics Walsh
and Lovitch and the Passaic-Clifton
MICU, all of the defendants that
remained in the lawsuit appealed the
District Court’s ruling and we
subsequently consolidated the appeals.3
3 The District Court in its opinion
did not address “John Does I through X”
and did not rule respecting them. The
charging portions of the District Court’s
Order dated October 4, 2002 and entered
on October 8, 2002, read as follows:
1) The motions for summary
judgment by defendants City of Passaic,
Police Officer Paul Slater, Police Officer
Ross Capuana, Police Officer Robert
Callaghan, Police Officer Farallo, Police
Officer O’Donnell, Police Officer
Robert Longo, EMT George Garcia, and
EMT Amalin Rodriguez are denied for
the reasons placed on the record by the
Court on September 30, 2002;
2) The motion for summary
judgment by defendant Police Officer G.
Caceres is unopposed and is granted; and

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II. APPEALABILITY
Before reaching the merits, we
address our appellate jurisdiction.
A. Officers Longo and Capuana
The Rivas family has moved to
dismiss the appeals of Officers Longo
and Capuana.4 Although both officers
filed a notice of appeal, they did not
submit written briefs. Pursuant to
Federal Rule of Appellate Procedure
31(c), “[i]f an appellant fails to file a
brief within the time provided by this
rule, or within an extended time, an
appellee may move to dismiss the
appeal.”
Unlike a notice of appeal, which
if not filed divests our Court of
jurisdiction, an appellant’s failure to file
an appellate brief does not deprive a
federal appellate court of jurisdiction and
consequently, without more, we do not
dismiss an appeal if an appellant fails to
file a brief within the prescribed time
limits. See Marcaida v. Rascoe, 569
F.2d 828, 830 (5th Cir. 1978). We do,
however, retain discretion to dismiss
such appeals and we choose to invoke
that sanction here against Officer Longo
because he has neither submitted a
written brief nor provided an explanation
for his failure to do so. Indeed, Officer
Longo did not even respond to the
motion to dismiss his appeal.
We will not, however, dismiss
Officer Capuana’s appeal. Unlike
Officer Longo, Officer Capuana
submitted a letter from his attorney
advising us that he was joining in
Officer Callaghan’s brief. Although the
Rivas family contends that Officer
Capuana’s “reliance on the Callaghan
brief is tantamount to filing no brief at
all” because Officer Callaghan’s brief
“contains no reference to the actions of
Officer Capuana,” we are not persuaded
by that argument. It is true that Officer
Callaghan’s brief does not focus on
Officer Capuana’s conduct, but the
record contains substantial testimony
from, and concerning, Officer Capuana.
Moreover, Officers Capuana and
Callaghan are similarly situated as they,
together with Officer Slater, were the
first three officers on the scene and
together they restrained Mr. Rivas on the
3) Passaic Police Department and
City of Passaic EMT-Division are hereby
dismissed as defendants, it appearing
that they are not separate entities but
departments or divisions of defendant
City of Passaic which has been and
remains responsible for their conduct.
4 The Rivas family also moved to
dismiss the City of Passaic’s appeal,
asserting that the City of Passaic could
not claim qualified immunity and citing
Owen v. City of Independence, 445 U.S.
622 (1980) to that effect. A panel of this
Court granted the Rivas family’s motion
because, absent the availability of a
qualified immunity defense, see infra at
Section II. B., this Court has no appellate
jurisdiction.

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living room floor. Consequently, the
legal arguments presented in Officer
Callaghan’s brief apply, in large part, to
Officer Capuana as well. For these
reasons, we deny the Rivas family’s
motion to dismiss Officer Capuana’s
appeal.
B. Officers Slater, Farallo and
O’Donnell and EMTs Garcia and
Rodriguez
The Rivas family has also moved
to dismiss the appeals of Officers Farallo
and O’Donnell and the appeals of EMTs
Garcia and Rodriguez on the ground that
the issues raised in their written briefs
are evidentiary, and as such are not
eligible for interlocutory review. In
addition, the Rivas family moved to
dismiss a portion of Officer Slater’s
appeal for the same alleged problem.
As a general rule, federal
appellate courts have jurisdiction to hear
appeals only from “final decisions” of
the district courts. See 28 U.S.C. § 1291.
Accordingly, we normally do not
entertain appeals from a district court
order denying a motion for summary
judgment because such orders do not put
an end to the litigation. See, e.g.,
McNasby v. Crown Cork & Seal Co.,
832 F.2d 47, 49 (3d Cir. 1987). The
United States Supreme Court has
explained, however, that certain
“collateral orders” amount to final
decisions for purposes of taking an
appeal even though the district court may
have entered those orders before the case
has ended. See Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541,
546-47 (1949). These “collateral orders”
are those orders that (i) conclusively
determine the disputed issue, (ii) resolve
an important issue entirely separate from
the merits of the lawsuit, and (iii) cannot
be effectively reviewed on appeal from a
final judgment. See id. at 546; see also
Coopers & Lybrand v. Livesay, 437 U.S.
463, 468 (1978).
Under certain circumstances,
orders denying a motion for summary
judgment fall within the scope of the
collateral order doctrine. In Mitchell v.
Forsyth, 472 U.S. 511 (1985), the
Supreme Court explained that an order
denying a defendant’s motion for
summary judgment can be immediately
appealed so long as: (1) the defendant is
a public official asserting a qualified
immunity defense; and (2) the issue on
appeal is whether the facts alleged by the
plaintiff demonstrate a violation of
clearly established federal law, not
which facts the plaintiff might be able to
prove at trial. Id. at 528. The Supreme
Court explained in Mitchell that this kind
of summary judgment order could not
await an appeal following trial because a
vital importance of a qualified immunity
defense is to protect public officials from
having to stand trial—a right which
cannot be effectively vindicated
following trial. Id. at 526.
The Mitchell Court found more
difficult the “separability” question, that
is, whether the issue of qualified

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12
immunity is completely separate from
the merits of an underlying lawsuit. The
Court concluded, however, that: “it
follows from the recognition that
qualified immunity is in part an
entitlement not to be forced to litigate
the consequences of official conduct that
a claim of immunity is conceptually
distinct from the merits of the plaintiff’s
claim that his rights have been violated.”
Id. at 527-28. The Court felt that this
“conceptual distinctness” made the
immediately appealable issue “separate”
from the merits of the plaintiff’s claim,
in part because an:
appellate court reviewing
the denial of the
defendant’s claim of
immunity need not
consider the correctness of
the plaintiff’s version of
the facts, nor even
determine whether the
plaintiff’s allegations
actually state a claim. All
it need determine is a
question of law: whether
the legal norms allegedly
violated by the defendant
were clearly established at
the time of the challenged
actions or, in cases where
the district court has
denied summary judgment
for the defendant on the
ground that even under the
defendant’s version of the
facts the defendant’s
conduct violated clearly
established law, whether
the law clearly proscribed
the actions the defendant
claims he took.
Id. at 528 (footnote omitted).
In Johnson v. Jones, 515 U.S. 304
(1995), the Supreme Court made clear
what it had suggested in Mitchell,
namely, that the collateral order doctrine
does not permit an appeal from an order
denying a motion for summary judgment
if the issue raised on appeal is “whether
or not the evidence in the pretrial record
[is] sufficient to show a genuine issue of
fact for trial.” Id. at 307.
Johnson involved a Section 1983
claim against five police officers for use
of excessive force in making an arrest.
Three of the officers moved for summary
judgment on qualified immunity
grounds, arguing that there was
insufficient evidence in the record to
permit a reasonable juror to find the
officers were present when the plaintiff
was beaten. The district court denied the
motion, concluding that there was
enough evidence to defeat summary
judgment, and the officers appealed
invoking the collateral order doctrine.
The Supreme Court unanimously held
that appellate jurisdiction was lacking,
explaining that Mitchell did not permit
an appeal from an order denying
summary judgment if the order, “though
entered in a ‘qualified immunity’ case,
determines only a question of ‘evidence
sufficiency,’ i.e., which facts a party

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13
may, or may not, be able to prove at
trial.” Id. at 313.
We recently announced that we
understood Johnson to mean that, “if a
defendant in a constitutional tort case
moves for summary judgment based on
qualified immunity and the district court
denies the motion, we lack jurisdiction to
consider whether the district court
correctly identified the set of facts that
the summary judgment record is
sufficient to prove; but we possess
jurisdiction to review whether the set of
facts identified by the district court is
sufficient to establish a violation of a
clearly established constitutional right.”
Ziccardi v. City of Philadelpia, 288 F.3d
57, 61 (3d Cir. 2002) (footnote omitted).
Against this background, we turn
to the instant appeals. As noted above,
the Rivas family contends that Officers
Farallo, Slater and O’Donnell and EMTs
Garcia and Rodriguez have improperly
raised evidentiary issues on appeal.
After carefully reviewing the written
briefs, we have decided not to dismiss in
their entirety any of the appeals. We
find, however, that a number of the
issues raised in the briefs are not
properly before us. For example, we do
not have jurisdiction to review the
District Court’s denial of qualified
immunity to the defendants on the
pendent state law claims. While we have
recognized that such claims are
immediately appealable “if the state has
conferred an underlying substantive
immunity from suits arising from the
performance of official duties,” we have
also determined that the State of New
Jersey confers no such right. See Brown
v. Grabowski, 922 F.2d 1097, 1107,
1109 (3d Cir. 1990).5 Consequently, we
lack jurisdiction to consider Officers
Farallo’s and O’Donnell’s arguments
that the District Court erred in denying
their defense of qualified immunity
under New Jersey’s Tort Claims Act.
We also dismiss so much of the
appeals of Officers Slater and EMTs
Garcia and Rodriguez to the extent they
raise issues of causation. Officer Slater
argues that he cannot be held liable
because Mr. Rivas allegedly had an
enlarged heart and therefore died from
natural causes. In a similar vein, Garcia
and Rodriguez contend that none of their
actions, omissions, or inactions
proximately caused Mr. Rivas’s death.
While we are aware that a Section 1983
plaintiff must demonstrate that the
defendant’s actions were the proximate
5 In Brown, we were called upon
to decide whether New Jersey law
bestowed upon its officials the right to
not stand trial. After carefully
examining New Jersey’s statutory and
common law, and noting the general
reluctance by New Jersey state courts to
entertain interlocutory appeals, we
concluded that New Jersey law protected
state officials only from ultimate liability
and did not give them immunity from
litigation. See Brown, 922 F.2d at 1109.

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14
cause of the violation of his federally
protected right, see Martinez v.
California, 444 U.S. 277, 284-85 (1980),
the presence of the requisite causation is
normally a question of fact for the jury.
See Estate of Bailey v. County of York,
768 F.2d 503, 511 (3d Cir. 1985),
overruled on other grounds by
DeShaney v. Winnebago County Dep’t of
Social Servs., 489 U.S. 189 (1989). As
such, evidentiary issues bearing on the
merits of the counts do not qualify under
Mitchell for interlocutory review.
We find that the remaining issues,
which we address below, raise legal
questions and therefore are properly
raised on appeal.
III. STANDARD OF REVIEW
On review of a denial of summary
judgment, we apply a plenary standard of
review. See Fed. Home Loan Mortgage
Corp. v. Scottsdale Ins. Co., 316 F.3d
431, 443 (3d Cir. 2003). In doing so, we
assess the record using the same
summary judgment standard that guides
the district courts. See Farrell v.
Planters Lifesavers Co., 206 F.3d 271,
278 (3d Cir. 2000). To prevail on a
motion for summary judgment, the
moving party must demonstrate “that
there is no genuine issue as to any
material fact and that the moving party is
entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
IV. THE MERITS OF THE
SUMMARY JUDGMENT MOTIONS
The threshold issue in any Section
1983 lawsuit is whether the plaintiff has
sufficiently alleged a deprivation of a
constitutional right. Estate of Smith v.
Marasco, 318 F.3d 497, 505 (3d Cir.
2003). Because Section 1983 does not
create any substantive rights, the plaintiff
must be able to point to an independent
constitutional or statutory right. Brown
v. Commonwealth of Pa. Dep’t of Health
Emer. Med. Servs. Training Inst., 318
F.3d 473, 477 (3d Cir. 2003).
A. EMTs Garcia and
Rodriguez—“State-Created Danger”
The Rivas family contends that
Garcia and Rodriguez are liable because
they allegedly exposed Mr. Rivas to a
danger that he otherwise would not have
encountered.6 The Rivas family refers to
the “state-created danger” theory of
liability. While our consideration of the
6 The Rivas family also asserts
that EMTs Garcia and Rodriguez
violated Mr. Rivas’s substantive due
process rights by failing to provide Mr.
Rivas with any medical care while he
was in police custody (a.k.a. the “special
relationship” doctrine). The District
Court did not address this claim.
Although it did not comment on this
argument, we surmise it did not
specifically address this claim because of
its ultimate ruling. Our review of the
record reveals that the elements for a
special relationship claim do not exist
under the circumstances of this case.

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15
“state-created danger” doctrine started
with Brown v. Grabowski, 922 F.2d
1097 (3d Cir. 1990), it was not until
Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.
1996) that we held a viable claim could
be asserted where the state had created a
danger. We explained in Kneipp that in
order to state such a claim a plaintiff
must show: (1) that the harm ultimately
caused to the plaintiff was foreseeable
and fairly direct; (2) the state actor acted
in willful disregard for the plaintiff’s
safety; (3) there was some relationship
between the state and the plaintiff; and
(4) the state actor used his authority to
create an opportunity for danger that
otherwise would not have existed. Id. at
1208.
In Kneipp, a police officer
stopped a married couple returning home
on foot after a night of drinking at a
local tavern. The police determined that
both individuals were intoxicated, but
the husband was given permission to
leave, and he assumed the police would
take his wife either to the hospital or the
police station. Instead, the police let the
woman proceed home on foot alone.
She was found later that night at the
bottom of an embankment, where she
had fallen and suffered debilitating
injuries as a result of her exposure to the
cold. On those facts, we held that there
was a triable issue as to whether the
police had affirmatively placed the wife
in a position of danger such that she had
made a viable showing under Section
1983. See id. at 1201-03.
Applying Kneipp’s four elements
here, we find that the Rivas family has
adduced sufficient evidence (evidence
which the EMTs dispute), as to whether
Garcia and Rodriguez deprived Mr.
Rivas of his right to be free from a state-
created danger.
First, was the harm to Mr. Rivas
fairly foreseeable? On the morning in
question, it is undisputed that Mr. Rivas
was suffering from one or more seizures.
Both Garcia and Rodriguez knew that
Mr. Rivas was either in the throes of, or
coming out of, a seizure when they
arrived. Both Garcia and Rodriguez had
learned during their medical training that
seizure victims should not be restrained,
even when the convulsions appear to
have ended. They had also been
instructed to ensure that a patient’s
airway should remain open and
unobstructed.7 They called for police
7 At his deposition, Garcia was
asked what his training had taught him to
do when he encountered a seizure
victim. Garcia responded that he had
been instructed to “try to let the patient
have the seizure, . . . give oxygen, call
medics as soon as possible and transport
the patient.” Rodriguez gave similar
testimony at her deposition when she
testified that, “[w]henever a patient is
having a seizure, you have to let the
patient finish with the seizure, ALS
[Advanced Life Support] has to be there,
we have to give oxygen, assess vital
signs.”

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16
assistance shortly after arriving on the
scene.
According to the testimony of one
of the police officers, Garcia and
Rodriguez informed the police that Mr.
Rivas had assaulted one of them, but did
not inform the police about Mr. Rivas’s
medical condition or warn the officers
that Mr. Rivas should not be restrained.
Given this evidence and the inferences
most favorable to the Rivas family as the
non-movants, a reasonable jury could
find that the harm which befell Mr.
Rivas was a foreseeable and fairly direct
result of the actions taken by Garcia and
Rodriguez.
Second, we conclude that the
Rivas family has produced sufficient,
albeit disputed, evidence to raise a
material issue as to whether Garcia and
Rodriguez exhibited the standard of
culpability necessary to impose liability.
Although Kneipp remains good law
today, recent cases have refined this
second element in the four-part test.
Most notably, the Supreme Court has
held, in the context of a high-speed
police chase resulting in death, that a
Section 1983 plaintiff had to
demonstrate that the police officers’
conduct “shocked the conscience” in
order to establish a constitutional
violation under the Due Process Clause.
County of Sacramento v. Lewis, 523 U.S.
833 (1998). Because the officers in that
case had to act “‘in haste, under
pressure, and frequently without the
luxury of a second chance,’” the
Supreme Court explained that only an
“intent to harm” standard of culpability
would shock the conscience. Id. at 853
(quoting Whitley v. Albers, 475 U.S.
312, 320 (1986)).
Because conduct that “shocks the
conscience” under one set of
circumstances may not have the same
effect under a different set of
circumstances, the standard of
culpability for a substantive due process
violation can vary depending on the
situation. In Miller v. City of
Philadelphia, 174 F.3d 368 (3d Cir.
1999), for example, we recognized that a
social worker who attempts to remove a
child from his or her parents’ custody
does not, in contrast to a police officer
engaged in a high-speed pursuit, have to
make split-second decisions. Id. at 375.
Nevertheless, we noted that a social
worker in those circumstances must act
with some urgency and does not have the
luxury of proceeding in a deliberate
manner. Id. We therefore held that the
“shock-the-conscience” test could be met
only by adducing evidence that the social
worker’s actions were grossly negligent
or arbitrary, a less onerous standard than
an intent-to-harm standard. Id. at 375-
76.
In Ziccardi v. City of
Philadelphia, 288 F.3d 57 (3d Cir.
2002)—a case involving emergency
medical actions—we further elaborated
on the necessary state of mind to prove
due process violations in situations
where a state actor must act with some

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17
urgency. We noted that Miller, at 174
F.3d at 375-76, “appears to have
demanded proof of something less than
knowledge that the harm was practically
certain but more than knowledge that
there was a substantial risk that the harm
would occur.” Ziccardi, 288 F.3d at 66.
We ultimately settled on the following
test: “[W]e understand Miller to require
in a case [where an official had to act
with some urgency], proof that the
defendants consciously disregarded, not
just a substantial risk, but a great risk
that serious harm would result . . . .” Id.
We subsequently held that the
“shock-the-conscience” standard also
applied to emergency medical personnel.
In Brown v. Commonwealth of
Pennsylvania Department of Health
Emergency Medical Services Training
Institute, 318 F.3d 473 (3d Cir. 2003),
the parents of an infant who died of
asphyxia sued, among others, two EMTs
who had responded to the 911 call. The
parents alleged, among other things, that
the EMTs had gotten lost on their way to
the child’s residence and thereby a delay
occurred in removing a grape from the
child’s throat. Id. at 481. We
announced in Brown that “the ‘shocks
the conscience’ standard should apply in
all substantive due process cases if the
state actor had to act with some
urgency.” Id. at 480. We further held
that the “shock-the-conscience” standard
“applied to the actions of emergency
medical personnel—who likewise have
little time for reflection, typically making
decisions in haste and under pressure.”
Id.
Thus, the Rivas family can only
meet the second element of the Kneipp
test by presenting evidence that Garcia’s
and Rodriguez’s conduct shocks the
conscience by consciously disregarding a
substantial risk that Mr. Rivas would be
seriously harmed by their actions.
Rodriguez and Garcia both claim that
Mr. Rivas was physically combative and
attempted to strangle Rodriguez when
she first entered the apartment. If that
allegation is true, then it was reasonable
for them to call for police back-up.8 In
fact, Garcia testified that the attack on
Rodriguez led him to believe that Mr.
Rivas was a mental patient, not a seizure
victim.
On the other hand, there is
evidence in the record which suggests
that Mr. Rivas did not attack Rodriguez
and that Rodriguez simply panicked at
the sight of Mr. Rivas walking towards
her with his arms extended in front of
him. A jury crediting this version could
find that Rodriguez and Garcia
unnecessarily called for police
assistance. More importantly, it would
then appear that there had been a
misrepresentation to the police that Mr.
Rivas had attacked Rodriguez, leading to
the conclusion that Garcia and
Rodriguez neglected to tell the police
8 Rodriguez testified that she had
been trained to call for backup if she
encountered a combative patient.

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18
that Mr. Rivas was suffering from a
seizure and should not be restrained.9
In sum, these contrasting facts
satisfy us that summary judgment could
not be granted at this stage. A jury could
find, based on this version of events, that
Garcia and Rodriguez consciously
disregarded a great risk of serious harm
to Mr. Rivas by misrepresenting the
assault and then abandoning Mr. Rivas
to the police, particularly since EMTs are
supposed to render aid to those in need
of medical assistance. If Garcia and
Rodriguez misrepresented the assault,
not only did they abdicate their duty to
render medical assistance, but they
placed Mr. Rivas in greater danger by
falsely accusing him of acting violently.
A jury could find, depending on whose
testimony it credits, that such conduct
shocks the conscience.10
The third element in the Kneipp
test inquires whether there existed some
relationship between the state and the
plaintiff. The relationship requirement
under the state-created danger theory
contemplates a degree of contact such
that the plaintiff was a foreseeable victim
of the defendant’s acts in a tort sense.
See Kneipp, 95 F.3d at 1209 n.22.
9 Of course, this fact is also in
dispute because Rodriguez and Garcia
signed an incident report which states
that Garcia informed the police officers
about Mr. Rivas’s medical history when
they arrived at the apartment. Garcia,
however, seemingly contradicted this
account at his deposition. When asked if
he said anything to the police officers
before they brought Mr. Rivas out of the
bathroom, Garcia flatly answered, “No.”
10 Garcia and Rodriguez argue on
appeal that the District Court failed to
explicitly find which material facts are in
dispute. This argument rests largely on
our holding in Forbes v. Township of
Lower Merion, 313 F.3d 144 (3d Cir.
2002), in which the district court had
held, without elaboration, that the state
officials were not entitled to summary
judgment on the basis of qualified
immunity because the plaintiffs had
raised genuine issues of material fact.
We announced on appeal a new,
prospective rule requiring district courts
to “specify those material facts that are
and are not subject to genuine dispute
and explain their materiality.” Id. at 146.
This rule was necessary, the Court
explained, so that future panels could
carry out their appellate review function
without exceeding the limits of their
jurisdiction. Id. However, our reading
of the record persuades us that, before
reaching the merits of the summary
judgment motions, the District Court
discussed in some detail the underlying
facts and, in doing so, identified several
disputed facts. To the extent there are
any gaps in the District Court’s factual
recitation, we can “determine what facts
the district court, in the light most
favorable to the nonmoving party, likely
assumed.” Johnson, 515 U.S. at 319.

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19
In Morse v. Lower Merion School
District, 132 F.3d 902 (3d Cir. 1997), we
explained that the relationship must be
sufficiently close to exclude “those
instances where the state actor creates
only a threat to the general population,”
but not so restrictive as to limit “the
scope of § 1983 to those instances where
a specific individual is placed in
danger.” Id. at 913. Attempting to find
a workable medium between those two
ends of the spectrum, we held in Morse
that the plaintiff must be “a member of a
discrete class of persons subjected to the
potential harm brought about by the
state’s actions.” Id.
On the existing record, a jury
could find that Mr. Rivas was a member
of a “discrete class” of individuals
subjected to a potential harm caused by
Garcia and Rodriguez’s actions. The
EMTs were responding to a 911 call.
The very purpose of their visit to the
Rivas household was to provide medical
care to Mr. Rivas and to reduce, to the
extent possible, the amount of danger in
which he found himself as a result of his
seizure. If the jury credits Officer
Callaghan’s testimony that he and
Officer Slater were told by the EMTs
that Mr. Rivas physically assaulted
Rodriguez but were not given any
information about his medical condition,
it is foreseeable that Mr. Rivas would be
among the “discrete class” of persons
placed in harm’s way as a result of
Garcia and Rodriguez’s actions. See
Morse, 132 F.3d at 913 (explaining that
“[t]he primary focus when making . . .
[the relationship] determination is
foreseeability”).
The last element of the Kneipp
test asks whether the state actor used his
or her authority to create an opportunity,
which otherwise would not have existed,
for the specific harm to occur. See
Kneipp, 95 F.3d at 1209. A reasonable
factfinder could conclude that the
EMTs’ decision to call for police backup
and then (1) inform the officers on their
arrival that Mr. Rivas had assaulted
Rodriguez, (2) not advise the officers
about Mr. Rivas’s medical condition,
and (3) abandon control over the
situation, when taken together, created
an opportunity for harm that would not
have otherwise existed. Were it not for
those acts, Mr. Rivas presumably could
have remained in the apartment’s
bathroom for the duration of his seizure
without incident.
B. The Police Officers—Excessive
Force
The Rivas family asserts that the
police used excessive force against Mr.
Rivas during their encounter with him
and thereby violated his constitutionally
protected right. The Supreme Court has
held that all claims of excessive force by
police officers, in the context of an
arrest, investigatory stop, or other
“seizure,” should be analyzed under the
Fourth Amendment. Graham v. Connor,
490 U.S. 386, 395 (1989). “A claim for
excessive force under the Fourth
Amendment requires a plaintiff to show

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20
that a seizure occurred and that it was
unreasonable.” Curley v. Klem, 298
F.3d 271, 279 (3d Cir. 2002). A seizure
occurs “[w]henever an officer restrains
the freedom of a person to walk away.”
Tennessee v. Garner, 471 U.S. 1, 7
(1985). Because it is undisputed that a
seizure occurred in this case, the only
question is whether it was unreasonable.
An excessive force claim must be
evaluated “from the perspective of a
reasonable officer on the scene, rather
than with the 20/20 vision of hindsight”
and “must embody the allowance for the
fact that police officers are often forced
to make split-second judgments—in
circumstances that are often tense,
uncertain, and rapidly evolving—about
the amount of force that is necessary in a
particular situation.” Graham, 490 U.S.
at 396-97. The inquiry turns on
“objective reasonableness,” meaning that
the standard is whether the police
officer’s “actions [were] ‘objectively
reasonable’ in light of the facts and
circumstances” facing the officer,
regardless of the officer’s intent or
motivation. Id. at 397.
Factors to consider in making a
determination of reasonableness include
“the severity of the crime at issue,
whether the suspect poses an immediate
threat to the safety of the officers or
others, and whether he actively is
resisting arrest or attempting to evade
arrest by flight.” Graham, 490 U.S. at
396. Additional factors include “the
possibility that the persons subject to the
police action are themselves violent or
dangerous, the duration of the action,
whether the action takes place in the
context of effecting an arrest, the
possibility that the suspect may be
armed, and the number of persons with
whom the police officers must contend at
one time.” Sharrar v. Felsing, 128 F.3d
810, 822 (3d Cir.1997). The
reasonableness of the use of force is
normally an issue for the jury. See
Abraham v. Raso, 183 F.3d 279, 290 (3d
Cir. 1999).
While some courts “freeze the
time frame” and consider only the facts
and circumstances at the precise moment
that excessive force is applied, other
courts, including this one, have
considered all of the relevant facts and
circumstances leading up to the time that
the officers allegedly used excessive
force. See, e.g., Abraham, 183 F.3d at
291.
1. Officers Capuana, Callaghan, and
Slater
The Rivas family emphasizes that
Mr. Rivas committed no crime and
presented no threat to anyone when
Officers Slater, Callaghan and Capuana
arrived at the Rivas household. The
family claims the police officers were
informed of Mr. Rivas’s medical
condition upon entering the apartment
and should have allowed Mr. Rivas to
remain in the bathroom until the
paramedics, who were in transit, arrived.
Instead, the officers ordered Mr. Rivas to

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21
leave the bathroom. The family claims
Mr. Rivas had a second seizure as he
walked down the hallway and the police
officers responded by throwing him to
the ground. Officer Capuana’s
testimony could support the theory that
Mr. Rivas had a second seizure as he
passed through the kitchen.
The Rivas family emphasizes that
the force escalated after Mr. Rivas was
on the living room floor. Officer
Callaghan allegedly sat on Mr. Rivas’s
back while the other two officers
restrained his legs and attempted to place
handcuffs on Mr. Rivas. The family
contends the officers repeatedly pushed
Mr. Rivas’s face into the floor, which
made it difficult for him to breathe.
According to testimony given by the
EMTs, Officer Callaghan jammed a
flashlight into Mr. Rivas’s mouth at one
point during the struggle and later struck
him in the head with the same
flashlight.11
The police officers contend that
the level of force they employed was
necessary because Mr. Rivas bit them
and tried to grab Officer Callaghan’s
weapon. We must, however, at the
summary judgment stage “consider only
those facts alleged by [the plaintiff],
taken in the light most favorable to him.”
Curley, 298 F.3d at 280. As the District
Court pointed out, “Mrs. Rivas argues
that her husband could not have reached
for anything since he appeared to be in
the middle of another seizure and his
face was pushed into the floor.” We
explained in Bennett v. Murphy, 274
F.3d 133, 137 (3d Cir. 2002), that a
police officer who is accused of having
used excessive force is not “precluded
from arguing that he reasonably
perceived the facts to be different from
those alleged by the plaintiff,” but that
“contention . . . must be considered at
trial.” Id. at 137 (emphasis added). As
such, we must assume at the summary
judgment stage that Mr. Rivas, who was
laying face down on the floor, was
simply flailing his arms due to his
seizure.
When viewed in the light most
favorable to the Rivas family, these facts
are sufficient to support the claim that
Officers Callaghan, Slater and Capuana
may have used excessive force to quiet
Mr. Rivas. See Curley, 298 F.3d at 280
(finding unreasonable seizure where
police officer mistakenly shot port
authority officer). Once the officers
ordered Mr. Rivas out of the bathroom,
they effected a legal seizure by
restraining his freedom of movement.
Assuming that Mr. Rivas began to have
a medical seizure as he and the officers
walked through the kitchen (although his
condition may not have been recognized
by the officers), it was for the jury to
11 The medical examiner noted
that two of Mr. Rivas’s front teeth were
partially dislodged, which may
corroborate the claim that Officer
Callaghan forced a flashlight into Mr.
Rivas’s mouth.

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22
decide if the ensuing “takedown” and
force applied by the officers was
objectively reasonable.
2. Officers Farallo and O’Donnell
The Rivas family alleges that
Officers Farallo and O’Donnell used
excessive force on Mr. Rivas after he fell
out of the stretcher on the way down the
stairs. Specifically, the Rivas family
alleges that, “[w]hile Rivas was on the
porch, face down, bound hand and foot,
having sustained a head injury, bleeding
from the nose and mouth, and having
been unconscious just minutes before his
fall, Farallo and O’Donnell, along with
Officer Longo, collectively pressed
down on his back with the weight of
their bodies until he again lost
consciousness, became cyanotic, and
died of asphyxiation.”
O’Donnell testified that,
following Mr. Rivas’s fall from the
stretcher, he helped carry Mr. Rivas from
the stairs to the porch landing, where Mr.
Rivas was once again placed face down.
Mr. Rivas’s hands were handcuffed
behind his back and there is evidence
suggesting that Mr. Rivas’s ankles were
still bound by cloth restraints, which had
been applied by Garcia before Mr. Rivas
was removed from the living room.
Officer O’Donnell, who helped
carry Mr. Rivas down the stairs, must
have known that Mr. Rivas had just
fallen out of the stretcher head first and
had lost control of his bowels and had
vomited, clear signs that he was not well.
There was also testimony that a pool of
blood had formed around Mr. Rivas’s
head on the porch.
A reasonable jury could find from
these facts that Mr. Rivas did not present
a threat to anyone’s safety as he lay in a
prone position on the enclosed porch,
hands and ankles secured behind his
back. Yet there is testimony in the
record that, in order to restrain Mr. Rivas
and subdue him, Officers Farallo and
O’Donnell, along with Officer Longo,
collectively pressed down on Mr.
Rivas’s back with all of their weight
until he became still and unconscious. It
was immediately following these acts
that the paramedics noticed Mr. Rivas
was cyanotic and had stopped breathing.
Assuming that Mr. Rivas was
handcuffed and had his ankles tied at
that time, a reasonable jury could find
that the continued use of force against
Mr. Rivas was excessive. See, e.g.,
Clash v. Beatty, 77 F.3d 1045 (7th Cir.
1996).
C. Qualified Immunity—EMTs
We turn now to the question of
whether Garcia and Rodriguez are
entitled to qualified immunity. An
appellate court reviewing the denial of a
defendant’s claim of qualified immunity
must ask itself “whether the legal norms
allegedly violated by the defendant were
clearly established at the time of the
challenged actions.” Mitchell, 472 U.S.
at 528. Because the incidents in

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23
question occurred more than two years
after we issued our decision in Kneipp,
supra, it follows that the right to be free
from a state-created danger was clearly
established by this Court by November
of 1998, when Garcia and Rodriguez
responded to the Rivas family’s 911 call
for medical assistance. Our inquiry does
not, however, end there.
It is not enough that the
constitutional right was clearly
established in a general sense at the time
the incident occurred. Rather, “[t]he
contours of the right must be sufficiently
clear that a reasonable official would
understand that what he is doing violates
that right.” Anderson v. Creighton, 483
U.S. 635, 640 (1987). “The relevant,
dispositive inquiry in determining
whether a right is clearly established is
whether it would be clear to a reasonable
[official] that his conduct was unlawful
in the situation he confronted.” Saucier
v. Katz, 533 U.S. 194, 202 (2001).
In Kneipp, which we discussed
earlier, public officials abandoned a
victim with whom they had direct
contact. In reaching our decision in
Kneipp, we relied on, among others, the
following cases: Reed v. Gardner, 986
F.2d 1122, 1127 (7th Cir. 1993) (police
officer who removed a sober driver and
left behind a passenger whom he knew
to be drunk with the keys to the car was
subject to liability under 42 U.S.C. §
1983) and White v. Rochford, 592 F.2d
381, 385 (7th Cir. 1979) (police officers
who arrested uncle for drag racing and
left minor children alone in abandoned
car on the side of highway deprived
children of their due process rights).
Both of those cases involved public
officials abandoning citizens in
dangerous situations.
We discern from these cases that,
as of November 1998, our case law had
established the general proposition that
state actors may not abandon a private
citizen in a dangerous situation, provided
that the state actors are aware of the risk
of serious harm and are partly
responsible for creating the opportunity
for that harm to happen. As the Supreme
Court explained in Hope v. Pelzer, 536
U.S. 730 (2002), in some cases “a
general constitutional rule already
identified in the decisional law may
apply with obvious clarity to the specific
conduct in question, even though ‘the
very action in question has [not]
previously been held unlawful.’” Id. at
741 (quoting U.S. v. Lanier, 520 U.S.
259, 263 (1997) (citation omitted)).
In sum, we find that the pre-
existing law of “state-created danger”
jurisprudence was clearly established.
As such, it was sufficient to put Garcia
and Rodriguez on notice that their
conduct, if deemed unlawful, would not
shield them with immunity.12
12 We note that Garcia and
Rodriguez do not argue on appeal that
they are entitled to qualified immunity
because the law was not clearly

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24
D. Qualified Immunity—Police Officers
The Supreme Court held in
Saucier v. Katz, 533 U.S. 194 (2001)
that qualified immunity also applies to
Fourth Amendment excessive force
claims. Id. at 206. Consequently, even
if an officer uses force that was
objectively unreasonable, he may
nevertheless be protected from
individual monetary liability if he
reasonably believed, based on the facts
and circumstances known to him, that
the force used was lawful. Stated
somewhat differently, an official who
violated an individual’s constitutional
right, but not a clearly established
constitutional right, may have acted in an
objectively reasonable manner and
would thereby be protected from liability
by qualified immunity. “The relevant,
dispositive inquiry in determining
whether a right is clearly established is
whether it would be clear to a reasonable
officer that his conduct was unlawful in
the situation he confronted.” Id. at 202.
We have discussed this second
prong of a qualified immunity defense
above when we addressed the Rivas’s
claims against the EMTs. The factors
we noted there are the same factors that
apply here. In sum: under all the
circumstances relevant to the officers’
restraint and handling of Mr. Rivas, did
their actions constitute excessive force
and, if they did, was their violation of
Mr. Rivas’s constitutional right a clearly
established one? Mitchell, 472 U.S. at
528. Because the facts to be determined
are disputed and as such are the function
of the jury, the District Court did not err
in denying summary judgment to the
officers.
V.
Because this interlocutory appeal
decides only whether the District Court
properly held that the defendants were
not entitled to summary judgment on the
basis of a qualified immunity defense,
we do not consider nor do we address
the evidentiary arguments raised in the
appellants’ briefs.13 Ziccardi, 288 F.3d
at 61.
VI.
We will affirm the District Court
Judge’s denial of the summary judgment
motions filed by EMTs Garcia and
Rodriguez and by Police Officers Slater,
Callaghan, Capuana, Farallo, and
O’Donnell. The District Court Judge
established as of November 1998.
Instead, they argue that they are entitled
to qualified immunity because they did
not deprive Mr. Rivas of a constitutional
right. We have already addressed that
argument in a prior section.
13 We have earlier identified
some of the evidentiary arguments that
appear in the various appellants’ briefs
(e.g., proximate cause, pendent state
claims, etc.).

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25
properly denied their motions, which
were based on qualified immunity,
because of the contested factual
circumstances leading to the harm
suffered by Mr. Rivas. We will also
dismiss the appeal of Police Officer
Longo.14
AMBRO, Circuit Judge, concurring in
part
I join wholeheartedly in Judge
Garth’s excellent analysis affirming the
District Court’s denial of summary
judgment to the police officers. While I
concur in the judgment as to the EMTs, I
write separately to emphasize that, in
light of the high threshold for subjecting
EMTs to liability on a state action
theory, the facts of this case would
support liability for the EMTs under a
very limited set of circumstances only.
Before doing so, I consider the changes
to the four-prong test applicable to state-
created dangers, set out in Kneipp v.
Tedder, 95 F.3d 1199 (3d Cir. 1996).
I. The Kneipp test
The District Court relied on the
Kneipp test in its analysis of state-created
danger. In so doing, it cited principles
that have since been refined, if not
superseded altogether. The four
elements we identified in Kneipp were:
“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; [and] (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.” Id. at 1208 (citing Mark v.
Borough of Hatboro, 51 F.3d 1137,
1152 (3d Cir. 1995)).
Judge Garth has noted the most
important of the recent modifications to
the Kneipp test, which involved its
second prong: in light of the Supreme
Court’s decision in County of
Sacramento v. Lewis, 523 U.S. 833, 845-
47 (1998), a state actor will be liable
only for conduct that “shocks the
conscience”; it is no longer enough that
she or he has acted in “willful disregard”
of the plaintiff’s safety. Brown v. Pa.
Dep’t of Health Emergency Med.
Training Inst., 318 F.3d 473, 480 (3d
Cir. 2003).
This modification, however, is not
the only one. In Morse v. Lower Merion
School District, 132 F.3d 902 (3d Cir.
1997), we reconsidered the third prong
14 The Rivas family has filed a
motion to strike certain documents in the
appendix on the ground that those
documents allegedly were not before the
District Court when it issued its ruling.
Because we have not relied on any of the
disputed documents, we deny the
motion.

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26
of the Kneipp test and suggested that
there may be a “relationship” between
the state and the plaintiff merely because
the plaintiff was a foreseeable victim,
either individually or as a member of a
discrete class. Id. at 914. Moreover, we
have written “third party” out of the
fourth prong of the test. We recently
noted, “The fourth element’s reference to
a ‘third party’s crime’ arises from the
doctrine’s origin as an exception to the
general rule that the state does not have a
general affirmative obligation to protect
its citizens from the violent acts of
private individuals. The courts,
however, have not limited the doctrine to
cases where third parties caused the
harm. . . .” Estate of Smith v. Marasco,
318 F.3d 497, 506 (3d Cir. 2003)
(internal citation omitted).
In light of these substantial
modifications to the Kneipp test, Kneipp
as shorthand is a misnomer. To be sure,
Judge Garth has mentioned the relevant
refinements and considered this case by
reference to the adapted rubric. I
nonetheless believe that continuing to
cite the Kneipp test as “good law,” as
Judge Garth does, minimizes the extent
to which the law of state-created danger
in our Circuit has changed. And while
the changes to the third and fourth
prongs have expanded the state-created
danger doctrine, the substitution of
“shocks the conscience” for “willful
disregard” is a significant limitation. In
this context, our continued adherence to
Kneipp, if only in name, colors
plaintiffs’ perception of their burden and
tempts them to allege constitutional
violations where none exist.
II. Does the conduct of the
EMTs shock the conscience?
I am persuaded by Judge Garth’s
analysis that the plaintiffs have alleged
sufficient facts for a jury to find that
Garcia’s and Rodriguez’s conduct
shocks the conscience. I stress,
however, that only a very specific—and
highly unlikely—factual resolution
would warrant such a finding.
Whether defendants’ behavior is
conscience-shocking depends on the
particular circumstances of a case.
Miller v. City of Philadelphia, 174 F.3d
368, 375 (3d Cir. 1999). The Supreme
Court has, however, provided guidance
for application of the standard:
We have . . . rejected the
lowest common
denominator of customary
tort liability as any mark of
sufficiently shocking
conduct, and have held that
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. . . . It is, on
the contrary, behavior at
the other end of the
culpability spectrum that

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27
would most probably
support a substantive due
process claim; conduct
intended to injure in some
way unjustifiable by any
government interest is the
sort of official action most
likely to rise to the
conscience-shocking level.
Lewis, 523 U.S. at 848-49. From Lewis
we have gleaned several lessons. “The
first . . . is that negligence is not enough
to shock the conscience under any
circumstances. The second is that more
culpability is required to shock the
conscience to the extent that state actors
are required to act promptly and under
pressure.” Schieber v. City of
Philadelphia, 320 F.3d 409, 419 (3d Cir.
2003). Moreover, when state actors
must balance competing, legitimate
interests, the threshold of culpability is
higher. Id.
We have invoked these principles
in setting the standard of culpability
applicable to EMTs. In Brown, we
considered a § 1983 claim against EMTs
and the City of Philadelphia alleging
violation of the due process rights of a
child who died of choking following a
botched rescue attempt. We emphasized
that “there is no federal constitutional
right to rescue services, competent or
otherwise. Moreover, because the Due
Process Clause does not require the State
to provide rescue services, it follows that
we cannot interpret that clause so as to
place an affirmative obligation on the
State to provide competent rescue
services if it chooses to provide them.”
Brown, 318 F.3d at 478.
Thus, in order to “shock the
conscience,” rescue services must be
more than incompetent. In fact, in light
of our decision in Ziccardi v. City of
Philadelphia, 288 F.3d 57 (3d Cir.
2002), shocking the conscience entails
more even “than subjective deliberate
indifference,” id. at 65, the standard
applied by the District Court in this case.
Rather, plaintiffs must provide “proof of
something less than knowledge that the
harm was practically certain but more
than knowledge that there was a
substantial risk that the harm would
occur.” Id. at 66. In other words, the
plaintiffs here must demonstrate that the
EMTs “consciously disregarded, not just
a substantial risk, but a great risk that
serious harm would result” from their
conduct. Id. (emphasis added).
On the facts of this case, I doubt
very much that the plaintiffs will be able
to demonstrate this added element of
culpability. While the EMTs may have
failed properly to assist Rivas, they
certainly could not have expected, when
they called for assistance in subduing a
patient, that the police would subject the
patient to physical abuse. Perhaps upon
witnessing the subsequent mistreatment
of their patient they should have
intervened. Almost certainly they should
have offered medical advice (e.g., a
patient experiencing a seizure should not
be touched). But it would be a harsh
burden to require an EMT to insert
herself into a struggle between a seizing

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28
patient and a violent police officer. It is
after all a police officer, not an EMT,
who is expected to carry out and enforce
the law; an EMT will rarely feel
qualified to second guess an officer’s
authority.
I nonetheless concur because it is
not now our role to interpret the facts.
We will reverse the District Court’s
denial of summary judgment only if
there is no genuine issue as to any
material fact. Fed. R. Civ. P. 56(c). In
assessing whether judgment as a matter
of law is appropriate, we construe the
facts in the light most favorable to the
plaintiffs. We thus assume that the
EMTs did not merely call the police
unnecessarily because they
misinterpreted Rivas’s symptoms as
potentially aggressive or because they
were needlessly afraid. Rather, we
assume that they actually and actively
misrepresented to the police that Rivas
had attacked them. Though the chances
are remote, a jury theoretically could
find that the EMTs, unwilling to dirty
their hands to assist their patient, called
the police in order purposefully to shirk
their responsibility. Alternatively, it is
conceivable that Garcia and Rodriguez
needlessly phoned for backup in a
moment of fear and became embarrassed
when they arrived; perhaps they chose to
justify their call with false allegations of
violence rather than admit their
hastiness.
I am skeptical that the EMTs
acted in this manner, but the conflicting
testimony identified by Judge Garth
potentially could support such an
interpretation. I agree that such conduct,
however unlikely, would satisfy the high
standard of culpability laid out in Lewis
and Brown. I therefore leave for the jury
the question whether Garcia and
Rodriguez consciously disregarded a
great risk of serious harm to Rivas in a
manner that “shocks the conscience.”

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