Case Information
*2 Before: BECKER and MANSMANN, Circuit Judges, and BROTMAN, District Judge.*
(Filed September 18, 1996)
___________
Howard K. Trubman, Esquire (ARGUED)
Suite 400
21 South 12th Street
Philadelphia, PA 19107
COUNSEL FOR APPELLANT
Michael F. Eichert, Esquire (ARGUED)
Chief Deputy City Solicitor
Marie C. Lasota, Esquire
Assistant City Solicitor
Office of City Solicitor
1600 Arch Street
8th Floor
Philadelphia, PA 19103-2081
COUNSEL FOR APPELLEES TEDDER AND CITY
* Honorable Stanley S. Brotman of the United States District Court for the District of New Jersey, sitting by designation.
___________
OPINION OF THE COURT
__________
MANSMANN, Circuit Judge.
In a civil rights complaint brought against the City of Philadelphia and certain police officers, the parents and legal guardians of Samantha Kneipp allege that late one January evening when Kneipp, in an obvious state of severe inebriation, was attempting to return on foot to her nearby apartment, the police officers stopped her and sent her on alone.
We hold that, if proven, the facts alleged will sustain a prima facie case of a violation of Kneipp's Fourteenth Amendment substantive due process right and her liberty interest in personal security under the theory that city police officers increased the risk of harm to Kneipp which ultimately resulted in the severe damages she sustained. In so holding, we adopt the "state-created danger" theory as a viable mechanism for establishing a constitutional violation under 42 U.S.C. § 1983. On remand, the municipal liability claims against the City should be reexamined by the district court in light of the appropriate legal standard.
I.
The events leading to the tragedy that befell Samantha Kneipp began in the late evening of January 23, 1993. Samantha and her husband Joseph were returning on foot from a night of drinking at a tavern in Bucks County, Pennsylvania. According to Joseph, Samantha was visibly intoxicated--she smelled of urine, staggered when she walked and, at times, was unable to walk without assistance. Joseph testified that he had to carry Samantha a portion of the way home.
Shortly after midnight, now January 24, 1993, Philadelphia Police Officer Wesley Tedder stopped the Kneipps for causing a disturbance on the highway. At this point, the Kneipps were only one-third of a block from their home. Unable to stand by herself, Samantha was leaning on Officer Tedder's car. Officer Tedder questioned Samantha and Joseph separately; he stated in his deposition that he smelled alcohol on Samantha and found both of them to be intoxicated. He gave Samantha instructions to go stand somewhere, which she did not follow.
Joseph told Officer Tedder that he just wanted to get his wife into their apartment.
Shortly after Officer Tedder stopped the Kneipps, three other police officers arrived separately at the scene and positioned themselves across the street from Officer Tedder.
Joseph left Officer Tedder and crossed over to the other side of the street where the police cars were situated. Joseph told one of the officers that he had a babysitter watching his son and that he was supposed to be home by now. Joseph then asked the officer if he could go home, to which the officer replied, "Yeah, *4 sure." When Joseph left to walk home, Samantha was leaning on the front of a police car in the presence of several police officers. Joseph testified that he assumed that because Samantha was drunk, the police officers were going to take her either to the hospital or to the police station. His thoughts at the time were that Samantha should not be left alone in her inebriated state and that the police officers would take care of her, so he proceeded home without her. Officer Tedder, however, sent Samantha home alone; she never reached her apartment building.
When his wife did not return to their apartment, Joseph went out to look for her. He saw a police car parked in a Sunoco station not far from his apartment building. As Joseph approached the car, he discovered Officer Tedder inside, and asked him if he had locked up Samantha or had taken her to the hospital. According to Joseph, Officer Tedder told him "to get out of here before he locked [him] up." Because of a previous experience with the Philadelphia police, Joseph took Officer Tedder's remark seriously and left. Joseph decided to continue looking for Samantha, and as he proceeded in the direction of a neighborhood convenience store, he thought he saw someone resembling Samantha, dressed in similar clothing, getting into an orange car. Because of Samantha's previous infidelity, Joseph thought that if it were Samantha, she was cheating on him again and would return when she was done. Joseph was never certain, however, that the woman he saw entering the car was Samantha.
Joseph decided to forego his search and returned home.
At approximately 1:51 a.m., Officer Francis Healy responded to a radio call reporting that an individual was found unconscious at the bottom of an embankment next to a parking lot at the shopping plaza across the street from the Kneipps' home. The unconscious individual was Samantha Kneipp. Joseph was awakened around 4:00 a.m. by Officer Healy, who informed him that Samantha had fallen and was in the hospital.
As a result of her exposure to the cold, Samantha suffered hypothermia, which caused a condition known as anoxia. Consequently, the anoxia resulted in permanent brain damage impairing many basic body functions.
Samantha's legal guardians instituted this civil rights action under 42 U.S.C. § 1983 against the City of Philadelphia and several police officers, alleging that the police officers were aware of Samantha's intoxication and "the potential for her to suffer harm because of her profoundly impaired faculties." By voluntarily assuming responsibility for her protection when they told Joseph he could leave, it was alleged that the officers affirmatively created a danger and increased the risk that Samantha might be injured when they later abandoned her. It is further alleged that the police conduct made Samantha "more vulnerable" [by] . . . "interfer[ing] with the efforts of Joseph [ ] to assist his wife to safety." Because the police officers acted with "deliberate or reckless indifference, callous disregard, or in such an arbitrary or abusive manner so as to shock the conscience," the legal guardians maintained that Samantha was deprived of her right to substantive due process and her liberty interest in personal security in violation of the *5 Fourteenth Amendment of the United States Constitution.
In addition, the legal guardians contended that the City of Philadelphia, by acquiescing in the longstanding policy, custom, or practice of not posting "activity credits" for taking intoxicated pedestrians into custody, and by failing to adequately train its police officers in the proper care of intoxicated persons, acted with "deliberate or reckless indifference, callous disregard, or in an arbitrary and abusive manner so as to shock the conscience," thereby also violating Samantha's right to substantive due process and her liberty interest in personal security.
In granting the defendants' motion for summary judgment, the district court found that the legal guardians had failed to prove a constitutional violation under either the "special relationship" test or the state-created danger theory. The court also denied a motion for reconsideration.
The legal guardians filed a timely notice of appeal
from the order of the district court. We have jurisdiction
pursuant to 28 U.S.C. § 1291; we exercise de novo review of the
district court's grant of summary judgment. Ideal Dairy Farms,
supra; Antol v. Perry,
II.
We begin our analysis with a discussion of the requirements for establishing a constitutional claim under 42 U.S.C. § 1983. The pertinent language of section 1983 states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for
redress.
Section 1983 does not, by its own terms, create substantive
rights; it provides only remedies for deprivations of rights
established elsewhere in the Constitution or federal laws. Baker
v. McCollan,
In DeShaney v. Winnebago Co. Dep't of Social Serv., 489 *6 U.S. 189, 197 (1989), the Supreme Court considered whether the due process clause of the Fourteenth Amendment imposed upon the state an affirmative duty to protect an individual against private violence where a special relationship exists between the state and the private individual. The Court found that the special relationship which would impose affirmative duties of care and protection on the state existed only in certain limited circumstances, such as when the state takes a person into its custody and holds him there against his will. Id. at 199-201. The Court explained:
In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf--through incarceration,
institutionalization, or other similar
restraint of personal liberty--which is the "deprivation of liberty" triggering the
protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.
Id. at 200 (footnote omitted). Applying this principle to the
facts in DeShaney, the Court did not find a due process violation
as the harms suffered by the child occurred while he was in the
custody of his father, not in the state's custody. Id. at 201.
In the case before us, we agree with the district court
that the special relationship required by DeShaney did not exist
between Samantha and the police officers. We disagree, however,
with the holding of the district court insofar as it adds a
special relationship requirement to the state-created danger
theory. In DeShaney, the Supreme Court left open the possibility
that a constitutional violation might have occurred despite the
absence of a special relationship when it stated: "While the
State may have been aware of the dangers that Joshua faced in the
free world, it played no part in their creation, nor did it do
anything to render him any more vulnerable to them." Id. at 201.
Several of our sister courts of appeals have cited this comment
by the Court as support for utilizing a state-created danger
theory to establish a constitutional claim under 42 U.S.C. §
1983. See Uhlrig v. Harder,
1995), cert. denied,
1989), cert. denied,
In previous cases, we have considered the possible
viability of the state-created danger theory as a mechanism for
establishing a constitutional claim pursuant to 42 U.S.C. § 1983.
*7
Mark,
1218 (1991). Until now, we have not, however, been presented with the appropriate factual background to support a finding that state actors created a danger which deprived an individual of her Fourteenth Amendment right to substantive due process. Samantha Kneipp's case presents the right set of facts which, if believed, would trigger the application of the state-created danger theory. We turn first to our previous decisions in this area.
In the 1990 case of Brown v. Grabowski, supra, Deborah Evans had been abducted and murdered by her former live-in boyfriend, Clifton McKenzie. Prior to the abduction, McKenzie had held Evans hostage for three days, during which he repeatedly threatened and sexually assaulted her. Although Evans and her family reported this information to the local police, criminal charges were never filed. Shortly thereafter, Evans was abducted and imprisoned in the trunk of her car where she froze to death. The personal representative of Evans' estate filed a civil rights complaint against the borough and employees of the police department alleging, inter alia, that Detective Grabowski, in failing to file criminal charges against McKenzie and in failing to inform Evans of her right as a victim of domestic violence to obtain a restraining order against McKenzie, violated her constitutional rights to due process and of access to the civil and criminal courts.
The plaintiff in Brown relied upon Wood v. Ostrander,
While undertaking the five mile walk to her home, the passenger
accepted a ride from a stranger who took her to a secluded area
and raped her. The Court of Appeals for the Ninth Circuit held
that the plaintiff had raised a triable issue of fact as to
whether the police officer "`affirmatively placed [her] in a
position of danger.'"
The court further held that the plaintiff was distinguishable
from the general public and, therefore, the police had a duty to
offer her some degree of peace and safety. Id. at 590 (citing
White v. Rockford,
The Court of Appeals for the Eleventh Circuit in
Cornelius validated the use of the "special danger" theory as a
basis for establishing a constitutional violation under 42 U.S.C.
§ 1983. In that case, Mrs. Cornelius was abducted at knife-point
by two prison inmates assigned to a community work squad at the
town hall where she worked. Mrs. Cornelius was held hostage and
terrorized for three days before being abandoned in another
state. She subsequently commenced a civil rights action against
various prison and town officials, alleging they owed her a duty
to assign only properly classified prison inmates, i.e.,
*8
nonviolent-offenders, to the community work squads and to provide
adequately skilled and trained officials to supervise the prison
work squads.
The court of appeals in Cornelius also imposed a nexus element to establish a triable issue as to special danger.
Citing Martinez v. California,
We found Wood and Cornelius to be distinguishable from
the facts in Brown -- in the former cases, the state defendants
affirmatively acted to create the danger to the victims; the
plaintiff in Brown, however, failed to offer any evidence that
the police officers acted to create or to exacerbate the danger
that the former boyfriend posed to the victim.
Id. Thus, we concluded in Brown that the plaintiff had failed to
establish a cognizable constitutional claim under section 1983.
In 1992, sitting in banc, we considered the state-
created danger theory in D.R. by L.R. v. Middle Bucks Area
Vocational Technical School,
We do not want to pretend that the line between action and inaction, between
inflicting and failing to prevent the
infliction of harm, is clearer than it is.
If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.
Id. (quoting Bowers v. DeVito,
1982)).
We concluded in D.R. that the facts presented did not show that the defendants created the students' danger, increased their risk of harm, or made them more vulnerable to the assaults. Id. Moreover, we found the state-created danger line of cases to be factually distinguishable in a critical respect: in the cases where the courts imposed a constitutional duty based on a state- created danger, the state had affirmatively acted to create the danger. Id. In D.R., we found that the harm to the students resulted solely from the acts of private individuals, and not from the type of intermingling between state conduct and private violence that imposed liability in Wood and Cornelius. Id. at 1375. The acts or omissions of the school defendants in D.R., we concluded, did not rise to the level of affirmative action required to impose liability under the state-created danger theory.
In the 1994 case of Fagan v. City of Vineland, 22 F.3d 1296 (3d Cir. 1994) (in banc) (Fagan II), the plaintiffs claimed their constitutional rights to substantive due process were violated when police officers recklessly conducted a high speed pursuit in violation of the Attorney General's guidelines. The plaintiffs also alleged that the municipal defendant was liable because it followed a policy of not properly training and supervising police officers in conducting high-speed pursuits, and because it followed a policy of not enforcing the pursuit guidelines. The sole issue before us was the appropriate standard by which to judge police conduct in pursuit cases alleging a violation of substantive due process. Id. at 1299. We held that the appropriate standard to be applied in police pursuit cases involving an alleged violation of substantive due process is the "shocks the conscience" test. Id. at 1303.
In Fagan II, we declined to consider the applicability of the DeShaney line of cases which imposed a constitutional duty *10 in limited situations, i.e., special relationship or custody cases, to police pursuit cases, as this issue was not raised by the parties or addressed by the district court. Id. at 1308 n.9. Moreover, the plaintiffs in Fagan II did not advance the state- created danger theory as a basis for establishing a constitutional violation. Thus, neither the district court nor our court had the opportunity in Fagan II to review the viability of the state-created danger theory. We believe that the Fagan IIshocks the conscience standard is limited to police pursuit cases, and accordingly, we are not bound to follow that standard in the case before us.
In the 1995 case of Mark v. Borough of Hatboro, supra, we suggested a test for applying the state-created danger theory. We found that cases predicating constitutional liability on a state-created danger theory have four common elements: (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; (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.
We again declined to adopt the state-created danger theory in Mark because its facts were dissimilar to the courts of appeals cases which upheld its use. Id. at 1152. The alleged constitutional violation in Mark arose from the borough's "failure to follow adequate policies to ensure that applicants to the fire department were screened sufficiently for tendencies towards arson." Id. at 1140. We concluded that when the alleged violation involved a policy directed at the public in general, such as the one at issue in Mark, the basis for the state-created danger theory was obviated insofar as the defendant lacked specific knowledge of the plaintiffs' condition, and a relationship between the defendants and plaintiffs did not exist. Id. at 1153.
We turn now to the unique facts presented in the case before us.
III.
We begin by applying the four common elements we set forth in Marks for the state-created danger theory. First, the *11 injuries to Samantha were foreseeable -- Dr. Saferstein stated in his report that at a blood alcohol level of .25%, Samantha's muscular coordination was seriously impaired. Joseph's testimony as to how he had to help his wife walk, even carry her at times, also tends to show that Samantha's ability to walk was impaired. A reasonable trier of fact could conclude that in Samantha's state of intoxication, she would be more likely to fall and injure herself if left unescorted than someone who was not inebriated. Based on the facts and inferences most favorable to the legal guardians, we hold that a reasonable jury could find that the harm likely to befall Samantha if separated from Joseph while in a highly intoxicated state in cold weather was indeed foreseeable.
Second, we find the plaintiffs have adduced sufficient evidence to raise a material issue as to whether Officer Tedder acted in willful disregard for Samantha's safety. The plaintiffs presented evidence regarding Samantha's level of intoxication and impairment; by Officer Tedder's own testimony, he admitted that he knew Samantha was drunk. Moreover, Tedder's statement that he sent Samantha and Joseph home together is contradicted by the testimony of Joseph, Officer Healy and Tina Leone.
We also believe the legal guardians have proved the
third element -- a relationship between the state and the person
injured (here Officer Tedder and Samantha and Joseph Kneipp)
during which the state places the victim in danger of a
foreseeable injury. Mark,
Finally, there is sufficient evidence in the summary judgment record to show that Officer Tedder and the other police officers used their authority as police officers to create a dangerous situation or to make Samantha more vulnerable to danger had they not intervened. The conduct of the police, in allowing Joseph to go home alone and in detaining Samantha, and then sending her home unescorted in a seriously intoxicated state in cold weather, made Samantha more vulnerable to harm. It is conceivable that, but for the intervention of the police, Joseph would have continued to escort his wife back to their apartment where she would have been safe. A jury could find that Samantha was in a worse position after the police intervened than she would have been if they had not done so. As a result of the affirmative acts of the police officers, the danger or risk of injury to Samantha was greatly increased. Thus, we believe that a reasonable jury could find that the fourth and final requirement of Mark was satisfied here.
We find additional support for our position in the courts of appeals' decisions previously cited. See Reed v.
Gardner,
In contrast to the above cited authority stands the en
banc decision of the United States Court of Appeals for the
Eighth Circuit in Gregory v. City of Rogers, Arkansas, 974 F.2d
1006 (8th Cir. 1992), cert. denied,
In Gregory, the plaintiffs' argument turned on whether
the police officer knew or should have known the passengers were
intoxicated. The court of appeals found that the plaintiffs
failed to submit sufficient evidence which would lead a
reasonable trier of fact to conclude that the police officer knew
or should have known that the passengers were intoxicated and
unfit to drive, and thus, upheld the district court's grant of
summary judgment. The court of appeals, however, did not end its
analysis there. It went on to say that even if the police
officers knew the passengers were intoxicated, a reasonable jury
could not find that the police officer affirmatively placed the
passengers in danger by leaving them unattended in the car at the
station. Id. at 1011. The court explained that it was the
designated driver who placed the passengers in danger by leaving
the keys in the car when he went into the police station. Id. at
1012. To impose a duty on the police to take affirmative action
to protect the passengers, the court held, would circumvent the
general rule that plaintiffs do not have a constitutional right
to be protected by the police against harm inflicted by third
persons. Id. (citing Wells v. Walker,
Gregory, however, is distinguishable from this case in two respects. First the court of appeals in Gregory found that the police officer did not know that the passengers were intoxicated -- neither the testimony of the witnesses, nor the behavior of the two passengers observed during the traffic stop on the roadway indicated they were intoxicated. In contrast here, Officer Tedder admitted that he knew Samantha was drunk at the time he was questioning her, and Samantha was observed staggering, walking and standing with difficulty, requiring that she lean on parked cars or be carried by her husband.
The second distinction is who created the danger -- in Gregory, the court found that the third party created the danger by leaving the keys in the car; in the case before us, the police officers intervened to cut off Samantha's private source of protection by giving Joseph permission to go home alone, thereby increasing the danger that Samantha would suffer harm in her visibly intoxicated state when they abandoned her. The affirmative acts of the police officers here created a dangerous situation, requiring that they take additional measures to ensure Samantha's safety. That they failed to take the appropriate measures, knowing that Samantha was severely intoxicated, shows that the police officers acted with reckless disregard for her safety. On the other hand, the conduct of the police officer in Gregory did not rise to a level of recklessness. He did not know the passengers were drunk; nor did he take any affirmative action to create the dangerous situation -- leaving the keys in the car. Put another way, the passengers in Gregory were never abandoned; all they had to do was remain in the safety of the car and await the return of their driver. Samantha, however, was isolated from her husband and then abandoned by the police. Clearly then, because of these two important distinctions, Gregory is not dispositive of the issue before us.
At oral argument, we requested counsel for both sides
to submit a letter brief under Fed. R. App. P. 28(j) on the issue
of whether the Philadelphia police officers have a duty to arrest
an intoxicated person as a basis for imposing liability for a
constitutional tort under section 1983. We are convinced, after
reviewing the pertinent caselaw, that no such duty exists in
Pennsylvania. Even so, the failure to arrest Samantha would
not give rise to a constitutional claim, as liability under
section 1983 can be predicated only on violations of "federal
statutory or constitutional rights under color of state law."
D.R.,
Under the particular circumstances of this case, we hold that the state-created danger theory is a viable mechanism for establishing a constitutional claim under 42 U.S.C. § 1983. When viewed in the light most favorable to the legal guardians, the evidence submitted was sufficient to raise a triable issue of fact as to whether the police officers affirmatively placed Samantha in a position of danger. The district court erred, *14 therefore, in granting summary judgment for the defendant police officers based on its finding that a constitutional violation had not occurred.
IV.
The plaintiffs also argue that liability should be imposed under section 1983 against the City of Philadelphia for constitutional violations as a result of the City's acquiescence in the longstanding policy, custom or practice of not granting "activity credits" for taking intoxicated individuals into custody, and its failure to adequately train its police officers in the proper care of intoxicated persons. By so doing, the plaintiffs contend, the City acted with "deliberate or reckless indifference, callous disregard, or in an arbitrary and abusive manner so as to shock the conscience." Consequently, Samantha's right to substantive due process and her liberty interest in personal security guaranteed by the Fourteenth Amendment were allegedly violated.
We do not believe the district court adequately considered the appropriate legal standard in granting the City's motion for summary judgment. Although we feel compelled to set forth the appropriate legal standard, we decline to rule on whether it was met here, leaving that determination to the district court in the first instance.
The Supreme Court enunciated the rule for imposing
liability against a municipality under section 1983 in Monell v.
New York City Dept. of Social Serv.,
. . . a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
Id. at 694. Accordingly, the Supreme Court expressly rejected the imposition of section 1983 liability against a municipality on a respondeat superior theory. Id. at 691.
In City of Canton v. Harris,
. . . . Only where a failure to train
reflects a "deliberate" or "conscious" choice by a municipality -- a "policy" as defined by our prior cases -- can a city be liable for such a failure under § 1983.
Id. at 389. In addition to proving deliberate indifference, the Court held that the plaintiffs must show that the "deficiency in training actually caused the police officers' indifference to [the individual's] medical needs." Id. at 391.
Recently, we had the opportunity to examine the
holdings of Monell and its progeny in Beck v. City of Pittsburgh,
___ F.3d ___, No. 95-3328,
Policy is made when a "decisionmaker
possess[ing] final authority to establish municipal policy with respect to the action" issues an official proclamation, policy, or edict. A course of conduct is considered to be a "custom" when, though not authorized by law, "such practices of state officials [are] so permanent and well settled" as to
virtually constitute law.
Beck, id. (quoting Andrews v. City of Philadelphia, 895 F.2d
1469, 1480 (3d Cir. 1990) (citations omitted). Moreover, a
prerequisite to establishing liability in either situation is a
showing that a policymaker was responsible either for the policy
or, through acquiescence, for the custom. Id. See also Jett v.
Dallas Independent School Dist.,
In order to ascertain who is a policymaker, "a court
must determine which official has final, unreviewable discretion
to make a decision or take action." Andrews,
Under § 1983, only the conduct of those
officials whose decisions constrain the
discretion of subordinates constitutes the acts of the municipality. This does not mean, however, that the responsible
decisionmaker must be specifically identified by the plaintiff's evidence. Practices "`so permanent and well settled' as to have `the force of law' [are] ascribable to municipal decisionmakers."
Proof only of the existence of an unlawful policy or custom is not sufficient, however, to impose municipal liability under section 1983. Id. A plaintiff must also establish that the government policy or custom was the proximate cause of the injuries sustained. Id. (citation omitted). "To establish the necessary causation, a plaintiff must demonstrate a `plausible nexus' or `affirmative link' between the municipality's custom and the specific deprivation of constitutional rights at issue." Id. (citation omitted). To the extent that the "causal link" is not too attenuated, the jury must decide whether the government policy or custom proximately caused the constitutional violation. Id.
Here, the district court dismissed the municipal
liability claims against the City of Philadelphia on the basis
that the plaintiffs failed to establish an underlying
constitutional violation pursuant to section 1983. It does not
appear that, in so ruling, the district court considered the
substantive elements of the municipal liability claims -- whether
(1) the City of Philadelphia's training program for handling
intoxicated persons was adequate; (2) if the training program was
inadequate, the City was deliberately indifferent to the
deficiency; and, (3) the deficiency in the training actually
caused the police officers' indifference to Samantha's
intoxication and need for assistance. The precedent in our
circuit requires the district court to review the plaintiffs'
municipal liability claims independently of the section 1983
claims against the individual police officers, as the City's
liability for a substantive due process violation does not depend
upon the liability of any police officer. Fagan v. City of
Vineland,
1991), cert. denied,
V.
In conclusion, we find that the evidence presented, when viewed in the light most favorable to the legal guardians, together with all reasonable inferences on their behalf, could support a jury's verdict in their favor as to the constitutional violations alleged against the individual police officers. We will, therefore, reverse the order of the district court granting summary judgment for the defendants and remand for trial on this issue, and for further consideration of the municipal liability claims against the City of Philadelphia in light of our opinion. _________________________