Lorraine Gormley v. Latanya Wood-El (069717)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

Lorraine Gormley v. LaTanya Wood-El (A-101/106-11) (069717)

Argued November 4, 2013 -- Decided June 30, 2014

ALBIN, J., writing for a majority of the Court.

In this appeal, the Court considers whether injuries suffered by an attorney while interviewing a client at a
state psychiatric hospital resulted from a state-created danger that violated her substantive-due-process rights under
the Fourteenth Amendment of the United States Constitution and whether defendants are entitled to qualified
immunity.

Plaintiff Lorraine Gormley was an attorney employed by the Department of the Public Advocate, Division
of Mental Health Advocacy, providing legal representation to clients involuntarily committed in state psychiatric
facilities, including Ancora Psychiatric Hospital (Ancora). Each ward at Ancora contained a day room in which up
to forty patients, including those who were involuntarily committed and classified as a danger to themselves or
others, could congregate. Visiting attorneys and psychiatrists also were required to use the day rooms for
professional interviews. Although frequent violence occurred in the day rooms, no security guards or cameras were
posted there. From October 2003 through December 2005, Ancora reported almost 4,000 assaults, including 810
assaults against staff members and visitors, 200 of which resulted in injuries.

In September 2005, Gormley arrived at Ancora to interview clients. She sat in a day room with her back
against the wall to prevent attacks from behind. One of her clients was B.R., who was suffering from a psychotic
disorder with hallucinations and who had been assigned Continuous Visual Observation (CVO) status because she
posed a safety risk to herself and others. Gormley, who was not informed that B.R. was on CVO status, sat near her
in order to hear over the noise in the day room. As Gormley turned her head, B.R. hit her several times. Gormley
tried to flee, but B.R. grabbed her by the hair, causing her to fall and strike her head on the concrete floor. When
Gormley regained consciousness, B.R. was still attacking her. Gormley was out of work for about four months due
to her physical and mental injuries.

Gormley filed a civil action against Ancora’s CEO, LaTanya Wood-El, and other government officials, in
their individual capacities, under both the Federal Civil Rights Act, 42 U.S.C.A. § 1983, and the New Jersey Civil
Rights Act, N.J.S.A. 10:6-2(c), alleging that her constitutional right to be free from state-created danger was
violated. On defendants’ motions for summary judgment, the trial court concluded that Gormley had presented
sufficient evidence to proceed on the civil-rights claims under the state-created-danger doctrine. The court deferred
deciding whether she was entitled to injunctive relief.

The Appellate Division concluded that the trial court erred in failing to dismiss the federal civil-rights
claims on qualified-immunity grounds. Gormley v. Wood-El, 422 N.J. Super. 426 (App. Div. 2011). Although the
panel determined that defendants violated Gormley’s Fourteenth Amendment substantive-due-process rights under
the state-created-danger theory, it found that defendants had qualified immunity because these rights were not
clearly established at the time she was attacked. The panel did not address Gormley’s claim for relief under the New
Jersey Civil Rights Act or her claim for injunctive relief. Gormley moved for leave to appeal the dismissal of her
claims based on qualified immunity, and defendants moved for leave to appeal the upholding of the civil-rights
claims under the state-created-danger theory. The Court granted the motions filed by Gormley, 210 N.J. 25 (2012),
and defendants, 216 N.J. 337 (2012).

HELD: Under the facts of this case, a lawyer assigned to represent a client civilly committed to a state psychiatric
hospital had a substantive-due-process right to be free from state-created dangers. Because that right was clearly
established at the time the lawyer was attacked, the state official defendants are not entitled to qualified immunity.

1
1. Viewing the evidence in the light most favorable to Gormley, the Court first considers whether a jury could find
that defendants violated Gormley’s federal substantive-due-process right to be free from state-created danger. The

analysis of this right is the same under both the Federal and New Jersey Civil Rights Acts. Although the Due
Process Clause of the Fourteenth Amendment protects against the government’s arbitrary deprivation of a liberty
interest, it does not generally confer an affirmative right to governmental aid to secure a liberty interest or confer
governmental protection to individuals from violence by private actors. Rather, the constitutional threshold is only
met if the State either creates the danger that proximately causes the injury or renders the victim more vulnerable to
danger. (pp. 22-29)

2. In Bright v. Westmoreland County, 443 F.3d 276 (3d Cir. 2006), cert. denied, 549 U.S. 1264 (2007), the United
States Court of Appeals for the Third Circuit developed a standard for application of the state-created-danger
doctrine, requiring a plaintiff to satisfy a four-prong test: (1) the ultimate harm must be foreseeable and direct; (2)
the conduct of the state actor must shock the conscience; (3) the plaintiff must be a specifically foreseeable victim or
part of a discrete class of foreseeable victims; and (4) the state actor must affirmatively use his authority either to
create a danger or render a person substantially more vulnerable to injury. Conscience-shocking conduct occurs if
the state actor intentionally causes unjustifiable harm, but not if the harm arises from negligence. For scenarios
between these two extremes, courts must conduct a fact-sensitive analysis since deliberate indifference that shocks
the conscience in one environment may not in another. Status as a state employee is not dispositive of the right to
pursue a Section 1983 claim. (pp. 29-37)

3. Adopting and applying the Bright state-created danger test, the Court concludes that Gormley was a member of a
discrete class of victims subject to the foreseeable harms set in motion by defendants. Defendants controlled the
movements of residents and visitors within Ancora, where assaults in day rooms were common and fairly
foreseeable. Defendants affirmatively used their authority to create the danger that rendered Gormley vulnerable to
the assault by establishing the regulations and environment to which Gormley had to submit while at Ancora.
Sufficient evidence exists to support Gormley’s claim that defendants acted with deliberate indifference to the
foreseeable dangers threatening attorneys assigned to represent committed patients. Thus, a rational jury could find
that all four Bright factors are met and that defendants violated Gormley’s substantive-due-process right to be free
from state-created dangers under the Fourteenth Amendment of the United States Constitution. Responding to the
dissent, the Court explains that it looked to the totality of the circumstances, rather than individual factors, to discern
the conscience-shocking conduct because no single brushstroke reveals the whole picture. In light of the unique
level of violence at Ancora, its conclusion will not open a floodgate of litigation against public entities. (pp. 37-47)

4. The application of qualified immunity is a matter of law for a court to decide. Under this doctrine, government
officials are shielded from a suit for civil damages when their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known. This balances the need to hold public
officials accountable when their conduct is irresponsible against the need to shield them when they perform their
duties reasonably. In order for a right to be clearly established, its contours must be sufficiently clear so that a
reasonable official would know that his conduct is violating that right. In the present case, the Court concludes that
Gormley’s right to be free from state-created danger was clearly established at the time of the assault. In light of the
history of violence at Ancora and the requirement that attorneys meet with clients in the chaotic day rooms,
reasonable hospital administrators knew or should have known that the conditions they created breached the
substantive-due-process guarantee of the United States Constitution. Thus, the Court reverses the Appellate
Division’s dismissal of the federal civil rights claim on qualified-immunity grounds. Finally, even if qualified
immunity were granted to defendants, Gormley would still have the right to pursue injunctive relief. (pp. 47-52)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART and the
matter is REMANDED to the trial court for further proceedings in accordance with the Court’s opinion.

JUSTICE LaVECCHIA, DISSENTING, joined by JUSTICE PATTERSON, expresses the view that a
substantive state-created-danger claim was not presented in this matter, and the majority’s holding to the contrary
will impact numerous governmental operations in settings such as schools and prisons, while the totality-of-the-
circumstances approach leaves government officials uncertain as to their risk of personal liability. Moreover, even
if a claim were presented, it was not clearly established at the time Gormley suffered her injuries, thereby rendering

2
defendants qualifiedly immune from suit.

CHIEF JUSTICE RABNER and JUDGE RODRÍGUEZ (temporarily assigned) join in JUSTICE
ALBIN’s opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion, in which JUSTICE
PATTERSON joins. JUDGE CUFF (temporarily assigned) did not participate.

3
 SUPREME COURT OF NEW JERSEY
A-101/106 September Term 2011
069717

LORRAINE GORMLEY,

Plaintiff-Appellate
and Cross-Respondent,

v.

LATANYA WOOD-EL, Chief
Executive Officer, Ancora
Psychiatric Hospital;
JENNIFER VELEZ, Current
Commissioner and WILLIAM
WALDMAN, Former Commissioner,
New Jersey Department of
Human Services; KEVIN
MARTONE, Current Assistant
Commissioner; and ALAN G.
KAUFMAN, Former Director,
Division of Mental Health
Services, Department of Human
Services,

Defendants-Respondents
and Cross-Appellants.

Argued November 4, 2013 – Decided June 30, 2014

On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 422
N.J. Super. 426 (2011).

Justin T. Loughry argued the cause for
appellant and cross-respondent (Loughry and
Lindsay, attorneys; Mr. Loughry and Lawrence
W. Lindsay, on the briefs).

Michael C. Walters, Assistant Attorney
General, argued the cause for respondents
and cross-appellants (John H. Hoffman,
Acting Attorney General of New Jersey,
attorney; Lewis A. Scheindlin, Assistant

1
 Attorney General, of counsel; Mr. Walters
and Randall B. Weaver, Deputy Attorney
General, on the briefs).

JUSTICE ALBIN delivered the opinion of the Court.

Lorraine Gormley was assigned to provide legal

representation to an involuntarily committed patient at a state-

run psychiatric hospital. To prepare for an upcoming commitment

hearing, at the direction of hospital officials, Gormley met

with her client in the hospital’s unsupervised day room, a place

where psychotic patients milled about and where violence

frequently erupted. During the meeting, Gormley’s mentally

disturbed client suddenly and brutally attacked her, inflicting

serious bodily injuries.

Gormley filed a civil action against the chief executive

officer of the hospital and officials at the Department of Human

Services under both the Federal Civil Rights Act, 42 U.S.C.A. §

1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c),

and under the state common law. She alleged that these

officials violated her constitutional right to be free from

state-created danger, a right protected by the substantive-due-

process guarantee of the United States Constitution.

The trial court denied summary judgment to the defendant

state officials on both Gormley’s federal and state civil-rights

claims but dismissed her common-law claim. The Appellate

Division determined that Gormley presented sufficient evidence

2
to establish a violation of her federal constitutional rights.

It held, however, that those rights were not clearly established

at the time of the assault on Gormley and therefore dismissed

the claims against the officials on the ground of qualified

immunity.1 Gormley v. Wood-El, 422 N.J. Super. 426, 444 (App.

Div. 2011).

We now reverse. We hold that, in this case, the lawyer

assigned to represent a client civilly committed in a state

psychiatric hospital had a substantive-due-process right,

guaranteed by the Fourteenth Amendment of the United States

Constitution, to be free from state-created dangers. We also

hold that the right was clearly established at the time Gormley

was viciously attacked by her client in the confines of the

hospital. We therefore conclude that the Appellate Division

erred in granting the state officials qualified immunity. This

matter is remanded to the trial court for further proceedings

consistent with this opinion.

I.

A.

In September 2005, Lorraine Gormley was an attorney

employed by the Department of the Public Advocate, Division of

1
The Appellate Division did not address Gormley’s state
constitutional claim.
3
Mental Health Advocacy.2 Gormley was assigned to provide legal

representation to clients involuntarily committed in state

psychiatric facilities, such as Ancora Psychiatric Hospital

(Ancora), a facility staffed and managed by the New Jersey

Department of Human Services, Division of Mental Health

Services. Patients involuntarily committed have a right to

counsel at their commitment hearings, and those who are indigent

have a right to appointed counsel. See In re S.L., 94 N.J. 128,

142 (1983). On September 22, 2005, while at Ancora, Gormley met

for the first time with her client B.R., a 21-year-old woman

committed sixteen days earlier for a “psychotic disorder” that

induced hallucinations. At the start of the interview in the

hospital’s crowded and chaotic day room, B.R. violently attacked

Gormley in the presence of hospital staff.

Two years later, Gormley filed a two-count complaint,

naming as defendants various officials employed by the

Department of Human Services: LaTanya Wood-El, Chief Executive

Officer of Ancora; Jennifer Velez, the current Human Services

Commissioner; William Waldman, its former Commissioner; Kevin

Martone, Assistant Commissioner in the Division of Mental Health

Services; Alan Kaufman, former Director of the Division of

Mental Health Services; and John and Jane Doe employees and

2
The Division of Mental Health Advocacy was transferred to the
Office of the Public Defender in 2010. L. 2010, c. 34, § 30
(codified at N.J.S.A. 52:27EE-37).
4
supervisors at Ancora. In the complaint, Gormley asserts causes

of action under the Federal Civil Rights Act, 42 U.S.C.A. §

1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c).

She alleges that defendants violated her substantive-due-process

rights guaranteed by the New Jersey and Federal Constitutions.

She asserts that these officials acted with deliberate

indifference to her physical safety in the face of known dangers

within their control. She maintains that they failed to take

reasonable steps to safeguard her from a violent assault and

failed to train or supervise the hospital staff on how to

promptly prevent or stop such an assault. Gormley also brought

a common-law tort claim, asserting that defendants failed to

maintain the hospital in a safe condition for persons, such as

her, who are required to be on the premises for business or

professionally related matters. She seeks compensatory and

punitive damages, attorney’s fees and costs, and injunctive

relief. Although the complaint does not specify whether

defendants were sued in their individual or official capacities,

or both, Gormley made clear at the summary-judgment hearing that

defendants were sued only in their individual capacities.3

3
“Personal-capacity suits . . . seek to impose individual
liability upon a government officer for actions taken under
color of state law.” Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct.
358, 362, 116 L. Ed. 2d 301, 309 (1991). When an official is
sued in his individual capacity, he is personally liable for any
5
 B.

At the conclusion of discovery, defendants moved for

summary judgment on all claims. The trial court dismissed the

common-law claims but not the federal and state civil-rights

claims. After granting defendants’ motion for leave to appeal,

the Appellate Division agreed with the trial court that there

was a triable issue of whether defendants violated Gormley’s

federal right to substantive due process. The Appellate

Division, nevertheless, concluded that that right was not

clearly established at the time of the assault on Gormley and

therefore granted defendants qualified immunity and dismissed

the federal civil-rights claim. The Appellate Division did not

address the state civil-rights claim. The parties, however,

have proceeded as though the Appellate Division dismissed the

state civil-rights claim on qualified-immunity grounds as well.

judgment resulting from his violation of another’s federal
rights. Ibid.

In contrast, an official-capacity suit “is not a suit against
the official [personally] but rather is a suit against the
official’s office.” Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 58
(1989). “[A]n award of damages against an official in his
personal capacity can be executed only against the official’s
personal assets,” whereas an award against him in his official
capacity can be executed against the government entity itself,
which is the real party in interest. Kentucky v. Graham, 473
U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114, 121
(1985).
6
 Gormley appeals from the Appellate Division’s dismissal of

her civil-rights claims on the basis of qualified immunity.

Defendants appeal from the Appellate Division’s holding that

they violated Gormley’s right to substantive due process. In

both appeals, we must determine whether defendants were entitled

to summary judgment.

A court should grant summary judgment only when the record

reveals “no genuine issue as to any material fact” and “the

moving party is entitled to a judgment or order as a matter of

law.” R. 4:46-2(c). In deciding whether summary judgment was

either properly granted or denied, “we apply the same standard

governing the trial court -- we view the evidence in the light

most favorable to the non-moving party.” Murray v. Plainfield

Rescue Squad, 210 N.J. 581, 584 (2012). In this appeal, we must

therefore view the summary-judgment record through the prism of

Gormley’s best case, giving Gormley -- the non-moving party --

the benefit of the most favorable evidence and most favorable

inferences drawn from that evidence. See id. at 584-85.4

The parties dispute how we should construe the substantive-

due-process guarantee of the Federal Constitution and the

federal and state civil-rights statutes. Our standard of review

in construing the meaning of a constitutional provision or a

4
It bears mentioning that, for the most part, the facts are not
in dispute.
7
statute is de novo; we do not defer to the interpretative

conclusions of the trial court or Appellate Division. See

Nicholas v. Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

With these principles of law in mind, we turn first to the

summary-judgment record.

II.

A.

In September 2005, Ancora was comprised of five secure

patient buildings, including the Cedar Building. That building

predominantly housed involuntarily committed patients suffering

mental illnesses who were classified as a danger to themselves,

others, or property. Cf. N.J.S.A. 30:4-27.2(m) (defining “in

need of involuntary commitment”). The Cedar Building was

divided into four locked wards. Each ward had a roughly thirty-

foot by thirty-foot day room that included a television, tables,

and chairs.

According to one source, “bedlam” reigned in these day

rooms. At times, an entire ward of thirty-five to forty

patients would be in attendance in a day room where

professionals, such as attorneys or psychiatrists, might be

present. No security guards were posted to provide protection

in the day rooms or anywhere at Ancora other than the

8
entranceway to the hospital. The day rooms were the scene of

frequent fights and violence. Often, attorneys and

psychiatrists were the victims of assaults by patients.

Although Ancora had a policy that provided for family

members to meet with patients in quiet, private rooms,

supervised by a staff member, lawyers were relegated to the

noisy, violent, and combustible day rooms to conduct client

interviews.

Ted Novak, an attorney in the Office of the Public Advocate

and Gormley’s supervisor, testified that he had been assaulted

three times by patients at Ancora before the attack on Gormley.

He noted that similar facilities had security guards but none

were present at Ancora. He explained that when interviewing a

client in the day room there would be “a lot of noise from

psychotic patients who [were] going off” and “screaming.” He

would constantly look over his shoulder to make certain he was

safe.

Three staff psychiatrists gave deposition testimony that

patients assaulted them on various occasions at Ancora, with

some of those assaults occurring in the day rooms of the Cedar

Building. One of those psychiatrists had to undergo nasal

surgery after a patient assault. The same psychiatrist

described an incident in which a resident ran across a day room

to attack her while she interviewed a patient. The

9
psychiatrist’s patient -- not a staff member at Ancora --

intervened to prevent the assault. Then the psychiatrist had to

intercede to stop her patient from pummeling her assailant.

Ancora’s CEO, LaTanya Wood-El, knew about this incident yet,

when deposed, could not remember if she took any steps to

prevent a recurrence. Two staff psychiatrists testified that,

unlike Ancora, other psychiatric hospitals where they had worked

provided security guards and private rooms for patient

interviews.

From October 2003 through December 2005, Ancora recorded

3846 assaults committed by patients on its grounds, including

810 assaults committed against staff members and visitors. Of

those 810 assaults, injuries were suffered in 200 cases.

Gormley filed an expert report from Robert Sadoff, a

psychiatrist with forty-five years of experience examining

patients committed to state hospitals. Dr. Sadoff stated that

he knew “of no other hospital or facility with similar numbers

of assaults” or lack of protective safeguards for professionals

conducting interviews or examinations. In his more than four

decades of practice in psychiatric hospitals, he conducted

patient interviews in a private room with a security guard

available if needed. He had never been attacked while examining

a patient at a hospital. In his view, an “attorney requires not

only privacy to examine and interview her client, but also needs

10
the security of a security guard, as exists in most other

psychiatric hospitals.” He concluded that Ancora should have

had in place protocols and standards for the protection of

visiting professionals.

Gormley’s other expert, Mark Rappaport, a Quality Care

Facility Review Specialist employed by the State of New York,

came to the same basic conclusion in a report he submitted:

“[T]he day room is [a] . . . potentially dangerous place for

often confidential, sensitive, and personal interviews between

patients and visitors (including attorneys) to take place.”

B.

On September 22, 2005, Gormley arrived at Ancora to meet

with clients whom she had been appointed to represent at

commitment hearings that week. One of those clients was B.R., a

21-year-old woman involuntarily committed sixteen days earlier.

B.R. was suffering from a “psychotic disorder due to medical

condition with hallucinations.” B.R. was confined to a ward in

the Cedar Building and assigned Continuous Visual Observation

(CVO) status. CVO status is conferred on “patients who

demonstrate a safety risk to self, others, and property.” In

accordance with Ancora’s protocols, B.R.’s CVO status required

an assigned staff member to keep her under “continual visual

observation” at all times.

11
 Gormley entered the ward’s day room and sat at a small

table awaiting her client. As a precaution, she placed her back

against the wall so that no one could attack her from behind.

Ancora offered no option of a separate interview room, did not

post security guards, did not use an electronic camera to

monitor the day room, and did not provide Gormley with access to

an emergency call device. In the day room, patients -- many in

psychotic states, a majority posing a danger to themselves and

others -- were freely milling about.

A staff member located and brought B.R. to the day room.

But no one informed Gormley that B.R. was on CVO status based on

a safety-risk assessment. B.R. sat at the table where she was

to be interviewed. Gormley positioned herself catty-corner to

B.R. because the noise in the day room made it impossible to

hear B.R. from across the table while conducting a confidential

interview. With the two in close physical proximity to each

other, the interview began. As Gormley turned her head to write

some notes, B.R., suddenly and without warning, struck Gormley

about the head and face several times. As Gormley attempted to

flee, B.R. grabbed her by the hair and pulled her backward,

causing her to fall and strike her head against the concrete

floor. Gormley lost consciousness. She awakened to find B.R.

continuing to attack her. No one intervened to stop the

assault. As Gormley tried to protect herself by kicking B.R.,

12
she heard an encouraging voice say, “That’s it. Kick her off of

you.” Gormley freed herself without anyone coming to her aid.5

Staff then escorted B.R. out of the day room.

Gormley “was dazed and in pain and was unable to walk or

drive anywhere.” One of her colleagues from the Division of

Mental Health Advocacy transported her to the infirmary on the

grounds of Ancora, and from there she went to the emergency room

at Virtua Hospital. In all, Gormley was out of work three to

four months due to her injuries. In addition to the physical

head injury, she suffered memory loss, cognitive and visual

impairment, sleep disturbances, extreme fatigue, and post-

traumatic stress disorder. In 2009, she was on a four-day work

schedule and receiving “treatment from a neurologist,

psychologist, cognitive therapist, and neuro-therapist.”

When deposed, CEO Wood-El was asked whether, after the

assault on Gormley, she instituted “any changes with respect to

how attorney/patient visits were handled.” She responded, “No.

I wouldn’t be required to.”

III.

A.

5
One staff member stated otherwise but, as noted earlier, at
this procedural posture the evidence must be viewed in the light
most favorable to plaintiff.
13
 Defendants moved for summary judgment on all of Gormley’s

claims. The trial court dismissed Gormley’s state common-law

claim, finding that the Workers’ Compensation Act provided the

exclusive remedy for that claim.6 On the other hand, the trial

court denied defendants’ summary-judgment motion to dismiss the

federal and state civil-rights claims on substantive-due-process

and qualified-immunity grounds. The court concluded that

Gormley had presented sufficient evidence to proceed under the

state-created-danger doctrine, leaving for the jury the ultimate

decision whether defendants violated Gormley’s rights and

leaving for the court’s later consideration whether those rights

were clearly established at the time of the day-room assault.

The court also deferred resolving whether Gormley was entitled

to injunctive relief.

B.

The Appellate Division granted leave to appeal and

concluded that the trial court erred in failing to dismiss the

federal civil-rights claims on qualified-immunity grounds.

Although the Appellate Division “[r]eversed and remanded for the

entry of an order granting summary judgment dismissing

plaintiff’s Section 1983 claims,” Gormley, supra, 422 N.J.

6
It is noteworthy that, at the summary-judgment hearing, the
Deputy Attorney General representing defendants expressed that
he did not believe that Gormley’s status as “a state employee
impacts on her federal rights.”
14
Super. at 444, it did not address two remaining issues --

Gormley’s claim for relief under the New Jersey Civil Rights Act

and her claim for injunctive relief.

On the Section 1983 claim, the Appellate Division first

determined that the facts, viewed in the light most favorable to

Gormley, demonstrated that defendants violated Gormley’s

Fourteenth Amendment substantive-due-process rights under the

state-created-danger theory. Id. at 440. In support of that

theory of constitutional liability, the panel cited a number of

federal courts of appeals, including the Third Circuit Court of

Appeals. Id. at 436-37 (citing Kneipp v. Tedder, 95 F.3d 1199,

1205 (3d Cir. 1996)). In particular, the panel looked to the

Third Circuit’s four-factor test for satisfying the state-

created-danger doctrine:

(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.

[Kneipp, supra, 95 F.3d at 1208 (line breaks
added) (quoting Mark v. Borough of Hatboro,
51 F.3d 1137, 1152 (3d Cir.), cert. denied,
516 U.S. 858, 116 S. Ct. 165, 133 L. Ed. 2d

15
 107 (1995)), quoted in Gormley, supra, 422
N.J. Super. at 437.]

The panel focused on the fourth factor, which “is

predicated upon the states’ affirmative acts which work” to

render a citizen more vulnerable to danger. Gormley, supra, 422

N.J. Super. at 437-38 (internal quotation marks omitted)

(quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 282 (3d

Cir. 2006), cert. denied, 549 U.S. 1264, 127 S. Ct. 1483, 167 L.

Ed. 2d 228 (2007)). The panel found that the evidence supported

that fourth factor: Gormley’s “liberty was restrained, albeit

in a temporary sense, as soon as she entered Ancora to provide

the constitutionally-mandated services”; Gormley had no choice

but to meet with her client at Ancora; Gormley “had no ability

to dictate the conditions under which she met with her client,

including the location of the consultation session”; the Ancora

staff knew that B.R. posed a risk of harm to others; Gormley was

not told of B.R.’s CVO status; defendants were “acutely aware of

the history of assaultive behavior by its patients against”

other patients, staff, and visitors; and, last, “defendants

failed to take appropriate measures to safeguard individuals

such as [Gormley] from physical attack.” Id. at 439. Given

these facts, the panel held that defendant state actors rendered

Gormley “vulnerable to foreseeable injury by their deliberate

16
indifference to her safety needs.” Id. at 440 (citation and

internal quotation marks omitted).7

However, the panel also held that Gormley’s substantive-

due-process right to be free from state-created dangers was not

clearly established at the time B.R. attacked her “and

continue[s] to remain unclear, not having been addressed by the

[United States] Supreme Court or [the New Jersey Supreme]

Court.” Id. at 444. Accordingly, the panel granted defendants

qualified immunity on the basis that “defendants did not engage

in any affirmative acts to create the dangerous condition,” even

if they were deliberately indifferent to “the foreseeable risk

of harm” to Gormley. Id. at 443.

C.

Gormley moved for reconsideration, arguing that her right

to injunctive relief was not extinguished by the grant of

qualified immunity to the individual named defendants. The

Appellate Division denied that motion without comment.

Gormley then moved for leave to appeal the Appellate

Division’s dismissal of her claims based on qualified immunity,

and defendants moved for leave to appeal the Appellate

Division’s upholding of the civil-rights claims under the state-

7
The Appellate Division rejected defendants’ contention that
plaintiff was barred from suit as their employee. See id. at
438 (“[P]laintiff was not an Ancora employee . . . . Nor was
she an employee of the Department of Human Services or any of
its divisions.”).
17
created-danger theory. We granted the motions filed by Gormley,

210 N.J. 25 (2012), and defendants, 216 N.J. 337 (2012).

IV.

A.

Defendants assert that the “Fourteenth Amendment does not

impose a duty on State officials to protect fellow State

employees (or the public generally)” from violence by private

individuals unless the State either has a “special relationship”

to the plaintiff or “affirmatively acts to create a danger to

the plaintiff she would not face absent the [S]tate’s

affirmative action.” Defendants argue that the Appellate

Division erred in finding a state-created-danger cause of action

even though defendants “did not affirmatively act to create a

danger to [Gormley] that was not inherent in her freely chosen

work.” Defendants emphasize that Gormley entered Ancora

voluntarily and that her liberty was not restrained inside, even

temporarily. Defendants distinguish their substantive-due-

process obligation to protect involuntarily committed patients

from those who freely enter the institution. Defendants take

the position that the substantive-due-process guarantee of the

Federal Constitution does not require Ancora to provide security

for a visitor, even if the hospital officials have knowledge

about the violent tendencies of an individual patient and direct

18
and control where the visitor must meet the patient. Defendants

do concede that if the Ancora officials affirmatively mislead a

visitor about the dangers presented by a patient then the state-

created-danger theory might apply.

Defendants also argue that a constitutional violation

cannot arise from defendants’ failure to provide Gormley a safe

workplace, citing Collins v. City of Harker Heights, 503 U.S.

115, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992). They submit

that the Workers’ Compensation Act is the exclusive remedy for

Gormley because she and defendants are all State employees.

In contrast, Gormley argues that the Appellate Division

properly found that she had presented sufficient evidence to

establish a violation of her substantive-due-process rights.

She highlights that she was a court-appointed attorney rendering

constitutionally required representation to an involuntarily

committed patient at Ancora -- “a locked facility” -- in a ward

controlled by defendants and that she was not “injured in the

free world by some private actor” over whom defendants had no

control. In Gormley’s view, to establish state-created-danger

liability in the circumstances of this case, it is enough to

show that defendants took no measures to protect her after they

brought her into close proximity with someone they knew to be

violent and then abandoned her to that violence. According to

Gormley, the United States Constitution protects her from the

19
exercise of state authority that “create[s] an opportunity that

otherwise would not have existed for the third party’s crime to

occur.”

Gormley, moreover, rejects the notion that she had an

employee-employer relationship with defendants who “operated

Ancora and created the dangerous visiting environment for

outside professionals.” Last, she maintains that because

defendants restrained her ability to act for herself inside the

facility, they had a “special relationship” to her -- an

affirmative duty to take steps necessary to ensure her safety.8

8
Despite the allegations in her complaint, Gormley did not
advance or develop her claim that defendants violated the
substantive-due-process guarantee of the New Jersey Constitution
-- not in her argument before the trial court, not in her brief
to the Appellate Division, and not in her brief to or oral
argument before this Court. On none of those occasions did she
mention Article I, Paragraph 1 of our State Constitution as a
substantive-due process source for a state-created-danger
doctrine. The failure to squarely address this potential claim
may be one reason why the Appellate Division is entirely silent
on the issue in its opinion. Only after this Court forwarded a
letter to counsel inquiring about the status of the state
constitutional claim did Gormley explain that she “reads the
Appellate Division’s silence on the state statutory and state
constitutional claims as not significant. We believe that the
Appellate Division would apply its [federal civil
rights/constitutional] analysis to the state civil rights
statutory/constitutional claims.” In other words, Gormley
perceives no distinction between the federal and state
constitutional analysis.

We decline to address for the first time a potentially new
doctrine under our state constitution in light of Gormley’s
failure to argue or brief the issue, or develop the type of
record that would assist the Court in resolving so important a
matter. We consider the state-constitutional claim to have
20
 B.

Gormley argues that the right to be free from state-created

danger, enforceable through Section 1983, was clearly

established both in federal courts, including the Third Circuit,

and in the Appellate Division at the time Gormley was attacked,

and therefore the panel erred in granting qualified immunity to

defendants. She maintains that reasonable hospital

administrators would have understood that “putting an individual

in danger, increasing his or her risk of harm, or rendering him

or her more vulnerable to danger would have violated that

individual’s Fourteenth Amendment substantive due process

rights,” citing DiJoseph v. City of Philadelphia, 953 F. Supp.

602, 610 (E.D. Pa. 1997), aff’d, 156 F.3d 1224 (3d Cir. 1998).

Finally, Gormley submits that qualified immunity conferred

on individual defendants does not deprive her of the right to

injunctive relief to remedy an ongoing constitutional violation.

Gormley continues to represent involuntarily committed clients,

except at Ancora on doctor’s orders. Gormley contends she had

no obligation to raise her claim for injunctive relief before

the Appellate Division because she succeeded on that issue

before the trial court. She asks for this Court to reinstate

that claim erroneously dismissed by the panel.

lapsed, and we will resolve only the federal constitutional
claim, which has been fully briefed and argued.
21
 On the other hand, defendants ask us to affirm the panel’s

dismissal of the constitutional claims based on qualified

immunity. They contend that case law did not place them on

notice that the Due Process Clause imposed a duty “to provide

[Gormley] with a safe working environment” in a psychiatric

hospital. They insist that they could not have known that their

conduct was unlawful.

Additionally, they submit that the Appellate Division

correctly denied Gormley injunctive relief. Defendants state

that Gormley had the obligation to argue that injunctive relief

would survive a finding of qualified immunity and that her

failure to do so constitutes waiver of the issue before the

Appellate Division. They also contend that the issue of

injunctive relief is moot because Gormley’s doctor has

restricted her from counseling clients at Ancora.

V.

Viewing the evidence and evidential inferences in the light

most favorable to the non-moving party -- Gormley -- we must

decide (1) whether a jury could find that defendants violated

Gormley’s federal substantive-due-process right to be free from

state-created danger; if so, (2) whether the right was clearly

established when Gormley suffered her injuries, thus determining

the applicability of qualified immunity; and (3) whether

22
injunctive relief is available to Gormley. We begin our

analysis with Gormley’s substantive-due-process claim.

A.

Gormley asserts a cause of action under a provision of the

Federal Civil Rights Act of 1871, c. 22, § 1, 17 Stat. 13, 13

(codified as amended at 42 U.S.C.A. § 1983). That statute

provides that any official who, under color of state law,

deprives a person 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.” 42 U.S.C.A. § 1983. Section

1983 is a means of vindicating rights guaranteed in the United

States Constitution and federal statutes. Baker v. McCollan,

443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694 n.3, 61 L. Ed. 2d

433, 442 n.3 (1979).

In addition to her federal civil-rights claim, Gormley

asserts a claim under the analogous New Jersey Civil Rights Act,

N.J.S.A. 10:6-1 to -2. Section 1983 applies only to

deprivations of federal rights, whereas N.J.S.A. 10:6-1 to -2

applies not only to federal rights but also to substantive

rights guaranteed by New Jersey’s Constitution and laws. The

New Jersey Civil Rights Act provides, in relevant part, that:

Any person who has been deprived of any
substantive due process or equal protection
rights, privileges or immunities secured by

23
 the Constitution or laws of the United
States, or any substantive rights,
privileges or immunities secured by the
Constitution or laws of this State, or whose
exercise or enjoyment of those substantive
rights, privileges or immunities has been
interfered with or attempted to be
interfered with, by threats, intimidation or
coercion by a person acting under color of
law, may bring a civil action for damages
and for injunctive or other appropriate
relief.

[N.J.S.A. 10:6-2(c) (emphasis added).]

Like Section 1983, N.J.S.A. 10:6-2(c) is a means of vindicating

substantive rights and is not a source of rights itself.

Through both Section 1983 and the New Jersey Civil Rights

Act, Gormley seeks to vindicate her right to liberty protected

by the Fourteenth Amendment. The Fourteenth Amendment analysis

under both statutes is the same. That Amendment provides, among

other things, that “no State shall . . . deprive any person of

life, liberty, or property, without due process of law.” U.S.

Const. amend. XIV, § 1. “The Due Process Clause guarantees more

than fair process”; it “provides heightened protection against

government interference with certain fundamental rights and

liberty interests.” Washington v. Glucksberg, 521 U.S. 702,

719-20, 117 S. Ct. 2258, 2267, 138 L. Ed. 2d 772, 787 (1997).

Substantive due process protects many now-familiar

fundamental rights, such as the right to marital privacy,

Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed.

24
2d 510 (1965); the right to have children, Skinner v. Oklahoma

ex rel. Williamson, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655

(1942); and the right to bodily integrity, Rochin v. California,

342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952).

Additionally, the Fourteenth Amendment’s Due Process Clause

protects the liberty interest of patients involuntarily

committed to state psychiatric hospitals and requires that the

State provide safe conditions for confinement. Youngberg v.

Romeo, 457 U.S. 307, 315-16, 102 S. Ct. 2452, 2458, 73 L. Ed. 2d

28, 37 (1982). Indeed, the Supreme Court has pronounced that

the State also has an “unquestioned duty to provide reasonable

safety for all . . . personnel within the [psychiatric]

institution.” Id. at 324, 102 S. Ct. at 2462, 73 L. Ed. 2d at

42.

The substantive-due-process right that Gormley asserts here

is the right to be free from state-created danger, mentioned in

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189,

201, 109 S. Ct. 998, 1006, 103 L. Ed. 2d 249, 263 (1989). In

that case, the mother of Joshua DeShaney sued a county, its

Department of Social Services (Social Services), and related

officials for depriving her son of his Fourteenth Amendment

substantive-due-process right to liberty. Id. at 193, 109 S.

Ct. at 1002, 103 L. Ed. 2d at 257. While young Joshua was in

the custody of his father, Social Services reviewed complaints

25
and evidence that Joshua was subject to repeated physical abuse

by the father. Id. at 192-93, 109 S. Ct. at 1001, 103 L. Ed. 2d

at 257. Despite substantial evidence of such abuse -- evidence

that led the agency to secure temporary protective custody of

Joshua -- Social Services dutifully recorded Joshua’s injuries

but took no action to remove the child from his home. Ibid.

By age four, Joshua was beaten so severely by his father that he

lapsed into a coma and suffered serious brain damage. Id. at

193, 109 S. Ct. at 1001-02, 103 L. Ed. 2d at 257.

On these facts, the United States Supreme Court held that

the “liberty” protected by the Fourteenth Amendment’s Due

Process Clause did not guarantee Joshua protection from violence

from a private person, such as his father. Id. at 201, 109 S.

Ct. at 1006, 103 L. Ed. 2d at 263. The Court held that the Due

Process Clause is “a limitation on the State’s power to act, not

. . . a guarantee of certain minimal levels of safety and

security.” Id. at 195, 109 S. Ct. at 1003, 103 L. Ed. 2d at

258-59. Thus, although the Due Process Clause protects against

the government’s arbitrary deprivation of a liberty interest, it

does not generally confer an “affirmative right to governmental

aid” to secure a liberty interest or generally confer protection

to individuals from violence by “private actors.” Id. at 195-

96, 109 S. Ct. at 1003, 103 L. Ed. at 258-59.

26
 The Court in DeShaney distinguished other cases in which

the State actually took custody of an individual, noting that

when the State holds a person against his will, “the

Constitution imposes upon it a corresponding duty to assume some

responsibility for his safety and general well-being.” Id. at

199-200, 109 S. Ct. at 1005, 103 L. Ed. at 261. Thus, under the

Eighth Amendment’s prohibition against cruel and unusual

punishment, the State is required “to provide adequate medical

care to incarcerated prisoners” because, having deprived an

inmate of his “liberty [to] care for himself, it is only ‘just’

that the State be required to care for him.” Id. at 198-99, 109

S. Ct. at 1005, 103 L. Ed. at 260-61 (alteration in original)

(internal quotation marks omitted) (quoting Estelle v. Gamble,

429 U.S. 97, 103-04, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 259-

60 (1976)); see also Farmer v. Brennan, 511 U.S. 825, 833, 114

S. Ct. 1970, 1976-77, 128 L. Ed. 2d 811, 822-23 (1994)

(“[P]rison officials have a duty to protect prisoners from

violence at the hands of other prisoners. . . . [H]aving

stripped them of virtually every means of self-protection and

foreclosed their access to outside aid, the government and its

officials are not free to let the state of nature take its

course.” (alteration, footnote, citations, and internal

quotation marks omitted)). In line with that reasoning, the

Court maintained that, under the Due Process Clause, it is

27
unconstitutional “to confine the involuntarily committed . . .

in unsafe conditions.” DeShaney, supra, 489 U.S. at 199, 109 S.

Ct. at 1005, 103 L. Ed. at 261 (citing Youngberg, supra, 457

U.S. at 315-16, 102 S. Ct. at 2458, 73 L. Ed. 2d at 37). In

these custodial cases, “[t]he affirmative duty to protect arises

. . . from the limitation which [the State] has imposed on [the

individual’s] freedom to act on his own behalf.” Id. at 200,

109 S. Ct. at 1005-06, 103 L. Ed. 2d at 262.

According to the Court, “[i]n 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” -- that triggers a duty to protect under

the Constitution. Id. at 200, 109 S. Ct. at 1006, 103 L. Ed. 2d

at 262 (emphasis added). The critical point in DeShaney is that

the state actors, albeit bystanders to the cruelties inflicted

on Joshua, did not create the danger that led to his tragic

condition. Id. at 201, 109 S. Ct. at 1006, 103 L. Ed. 2d at

262. The Court reasoned in DeShaney that “[w]hile 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.” Ibid.

(emphasis added).

28
 In that language, the Court suggested that when the State

either creates dangers that proximately cause injury or renders

the victim more vulnerable to those dangers, the constitutional

threshold has been met. From that language, the state-created-

danger doctrine was chiseled. Most federal circuit courts now

recognize the state-created-danger doctrine as a basis for a

substantive-due-process violation.9 See Sanford v. Stiles, 456

F.3d 298, 304 (3d Cir. 2006).

The United States Court of Appeals for the Third Circuit

has developed a standard for the application of the state-

created danger doctrine that is faithful to the language of

DeShaney and to the high bar set for proving a substantive-due-

process claim. In a Section 1983 state-created-danger cause of

action, a plaintiff must present evidence to satisfy the

following four-prong test:

9
See, e.g., Pena v. DePrisco, 432 F.3d 98, 107–10 (2d Cir.
2005); Robinson v. Lioi, 536 Fed. Appx. 340, 342 (4th Cir.
2013); Jasinski v. Tyler, 729 F.3d 531, 538 (6th Cir. 2013);
Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993); Forrester
v. Bass, 397 F.3d 1047, 1058 (8th Cir. 2005); Kennedy v. City of
Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006); Uhlrig v.
Harder, 64 F.3d 567, 572 (10th Cir. 1995); Butera v. District of
Columbia, 235 F.3d 637, 652 (D.C. Cir. 2001). But see Lockhart-
Bembery v. Sauro, 498 F.3d 69, 77 (1st Cir. 2007) (“[W]hile this
court and the Supreme Court have discussed the state-created
danger theory, neither has ever found the theory actionable on
the facts given.”); Estate of C.A. v. Castro, 547 Fed. Appx.
621, 626 (5th Cir. 2013) (“‘[T]his Court has consistently
refused to adopt the state-created danger theory.’” (citations
omitted)).
29
 (1) “the harm ultimately caused was
foreseeable and fairly direct”;

(2) a state actor acted with a degree of
culpability that shocks the conscience;

(3) a relationship between the state and the
plaintiff existed such that “the plaintiff
was a foreseeable victim of the defendant’s
acts,” or “a member of a discrete class of
persons subjected to the potential harm
brought about by the state’s actions,” as
opposed to a member of the public in
general; and

(4) a state actor affirmatively used his or
her authority in a way that created a danger
to the citizen or that rendered the citizen
more vulnerable to danger than had the state
not acted at all.

[Bright, supra, 443 F.3d at 281 (citations
and footnotes omitted) (elaborating on
earlier test in Kneipp, supra, 95 F.3d at
1208).]

Factors one and three under the Bright test overlap to some

degree. Under factor one, the ultimate harm to the plaintiff

must be “foreseeable” and “direct.” Compare Kneipp, supra, 95

F.3d at 1208 (holding that highly intoxicated woman’s fall down

embankment was foreseeable injury after police separated her

from companion and then abandoned her in freezing weather), and

Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989) (holding

that intoxicated woman was foreseeable victim of sexual assault

after police removed her from car driven by drunken driver and

left her alone in high-crime area), cert. denied, 498 U.S. 938,

111 S. Ct. 341, 112 L. Ed. 2d 305 (1990), with Henry v. City of

30
Erie, 728 F.3d 275, 282 (3d Cir. 2013) (holding that death in

house fire not direct consequence of housing inspector’s

approval of property), and Morse v. Lower Merion Sch. Dist., 132

F.3d 902, 908 (3d Cir. 1997) (holding that teacher’s murder was

not foreseeable consequence of school officials allowing

construction workers to use unlocked back door).

Under factor three, for foreseeability purposes, the

plaintiff must be more than an undifferentiated member of the

general public. Rather, the plaintiff must be a specifically

foreseeable victim or part of a discrete class of foreseeable

victims. Compare Kennedy, supra, 439 F.3d at 1063 (holding

evidence sufficient to find police officer liable in shooting of

victim by neighbor where officer falsely assured victim that her

allegations of sexual abuse against neighbor would not be

disclosed without first warning her), and Kneipp, supra, 95 F.3d

at 1209, with Martinez v. California, 444 U.S. 277, 285, 100 S.

Ct. 553, 559, 62 L. Ed. 2d 481, 489 (1980) (holding that

parolee’s murder of member of general public “too remote a

consequence of the parole officers’ action”), and Mark, supra,

51 F.3d at 1153 (holding that failure to screen volunteer

firefighter who burned home of non-specified member of public

not actionable).

Factor two requires that the conduct of the state actor

must “shock the conscience.” Although intentionally causing an

31
unjustifiable injury or harm will satisfy this standard,

negligently doing so will not. County of Sacramento v. Lewis,

523 U.S. 833, 849, 118 S. Ct. 1708, 1718, 140 L. Ed. 2d 1043,

1059 (1998). In many scenarios falling between these two

extremes, whether conduct is conscience-shocking is a fact-

sensitive analysis and will depend on whether the officials’

conduct is egregious in light of the particular circumstances.

Id. at 850, 118 S. Ct. at 1718, 140 L. Ed. 2d at 1060. Thus,

“[d]eliberate indifference that shocks in one environment may

not be so patently egregious in another.” Ibid. When

institutional officials have “time to make unhurried judgments,

upon the chance for repeated reflection, largely uncomplicated

by the pulls of competing obligations,” deliberate indifference

will suffice for substantive-due-process liability. Id. at 853,

118 S. Ct. at 1720, 140 L. Ed. 2d at 1062. Thus, when “extended

opportunities to do better are teamed with protracted failure

even to care, indifference is truly shocking.” Ibid.

On the other hand, when a police officer confronts

unforeseen circumstances that demand instant judgment, such as

the decision whether to engage in a high-speed car chase, then a

claim of indifference will not likely be shocking given the lack

of opportunity for considered deliberation. Ibid. That is,

“more culpability is required to shock the conscience to the

extent that state actors are required to act promptly and under

32
pressure.” Schieber v. City of Philadelphia, 320 F.3d 409, 419

(3d Cir. 2003).

Factor four requires that a state official affirmatively

use his authority either to create the danger or to render a

person “substantially more vulnerable to injury” than he

otherwise would have been absent state action. Id. at 416. For

liability to attach there must be “affirmative state action” and

not just a failure to protect a person from violence by another.

Bright, supra, 443 F.3d at 284. Accordingly, liability may

attach when an official exercises his authority and creates a

dangerous situation for a citizen or makes the citizen more

vulnerable to danger than had he not intervened. Estate of

Smith v. Marasco, 318 F.3d 497, 507-10 (3d Cir. 2003) (holding

evidence sufficient to support liability where police drove

mentally disturbed man to flee his house into woods, where he

died from exposure); Kneipp, supra, 95 F.3d at 1209, cited in

Bright, supra, 443 F.3d at 282-83; Freeman v. Ferguson, 911 F.2d

52, 54 (8th Cir. 1990) (holding evidence sufficient to support

liability against police chief for directing officers to ignore

pleas for help by estranged wife of chief’s friend, who

afterwards murdered wife); Wood, supra, 879 F.2d at 588.

A state actor will not escape liability by characterizing

his conduct as “inaction” when he has exposed a person to a

danger he created through the exercise of his authority. As

33
Judge Posner aptly stated, “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.” Bowers v. DeVito, 686 F.2d 616,

618 (7th Cir. 1982).

B.

The State draws our attention to Collins, supra, 503 U.S.

115, 112 S. Ct. 1061, 117 L. Ed. 2d 261, arguing that there can

be no liability in the present case because the State has no

constitutional duty to ensure that a workplace is free from

danger. But Collins is very different from the case before us.

In Collins, the Supreme Court held that the “liberty”

protected in the substantive component of the Fourteenth

Amendment’s Due Process Clause does not require a municipality

“to provide its employees with certain minimal levels of

safety.” Id. at 127, 112 S. Ct. at 1069, 117 L. Ed. 2d at 274.

In that case, a sanitation worker was asphyxiated after entering

a manhole to clear a sewer line. Id. at 117, 112 S. Ct. at

1064, 117 L. Ed. 2d at 268. In a Section 1983 action, his widow

asserted that the city violated his “‘constitutional right to be

free from unreasonable risks of harm’” by not warning him of or

training or equipping him for “the dangers of working in sewer

lines and manholes.” Ibid.

34
 Significantly, the Court noted that the worker’s widow did

not “allege that his supervisor instructed him to go into the

sewer when the supervisor knew or should have known that there

was a significant risk that he would be injured” but instead

generally alleged “that the city deprived him of life and

liberty by failing to provide a reasonably safe work

environment.” Id. at 125-26, 112 S. Ct. at 1069, 117 L. Ed. 2d

at 273. The Court was “not persuaded that the city’s alleged

failure to train its employees, or to warn them about known

risks of harm, was . . . arbitrary, or conscience shocking, in a

constitutional sense.” Id. at 128, 112 S. Ct. at 1070, 117 L.

Ed. 2d at 275 (emphasis added). Rather the Court characterized

the widow’s claim as “analogous to a fairly typical state-law

tort claim” involving breach of duty of care. Ibid.

In deciding Collins, the Court stressed that “[t]he

employment relationship . . . is not of controlling

significance,” and that neither the worker’s status as a

government employee nor the Court of Appeals’s suggestion that

deliberate indifference did not equate to “‘abuse of

governmental power’” was a sufficient reason for the dismissal

of the Section 1983 claim. Id. at 119-20, 112 S. Ct. at 1065-

66, 117 L. Ed. 2d at 269-70. Ultimately, the Supreme Court

concluded that the worker’s widow did not allege or establish an

35
arbitrary deprivation of liberty. Id. at 129-30, 112 S. Ct. at

1071, 117 L. Ed. 2d at 276.

Collins clearly demonstrates that Gormley’s status as a

state employee is not dispositive of her right to pursue a

Section 1983 claim.10 Moreover, Gormley has arguably presented

evidence of not merely unreasonable but conscience-shocking

dangerous conditions in the Ancora day room where Gormley was

compelled to interview her client. However, our analysis does

not end there because Gormley must establish that the summary-

judgment record meets the Bright factors for the state-created

danger doctrine.

10
At the summary-judgment hearing, defendants did not argue that
the Workers’ Compensation Act barred Gormley’s federal and state
civil-rights claims. Because “issues not raised below will
ordinarily not be considered on appeal,” N.J. Div. of Youth &
Fam. Servs. v. M.C. III, 201 N.J. 328, 339 (2010), we therefore
do not address this issue. It is worth noting, however, that it
is questionable whether the workers’ compensation bar -– a state
statutory immunity -– can overcome a federal civil-rights
claim. See Martinez, supra, 444 U.S. at 284 n.8, 100 S. Ct. at
558 n.8, 62 L. Ed. 2d at 488 n.8 (“Conduct by persons acting
under color of state law which is wrongful under 42 U.S.C. §
1983 . . . cannot be immunized by state law.” (citation and
internal quotation marks omitted)).

Moreover, we do not have the benefit of a record or argument
on which to determine whether the alleged federal and state
civil-rights violations constitute an “intentional wrong”
sufficient to overcome the workers’ compensation bar. See
Laidlow v. Hariton Mach. Co., 170 N.J. 602, 617 (2002) (barring
third-party suit against employer unless plaintiff can show
“intentional wrong,” which “encompass[es] acts that the employer
knows are substantially certain to produce injury even though,
strictly speaking, the employer does not will that result”).
36
 A review of a case comparable to the present one will help

inform our analysis of the state-created-danger doctrine. In

L.W. v. Grubbs, the United States Court of Appeals for the Ninth

Circuit reinstated a Section 1983 cause of action by a prison

nurse who claimed that her defendant prison supervisors, after

leading her to believe that she would not be left alone with

violent sexual offenders, then placed her “in unguarded

proximity with an inmate whose record they knew included attacks

upon women.” 974 F.2d 119, 120-21 (9th Cir. 1992), cert.

denied, 508 U.S. 951, 113 S. Ct. 2442, 124 L. Ed. 2d 660 (1993).

The nurse was “raped and terrorized” by the inmate. Ibid. The

Ninth Circuit rejected defendants’ arguments that the Section

1983 claim was infirm because the nurse “was not in custody” or

because of her “status as an employee.” Id. at 120-21. The

court also distinguished Collins, noting that the nurse in L.W.

alleged not just a general right to a reasonably safe workplace

but that “the [d]efendants took affirmative steps to place her

at significant risk, and that they knew of the risks.” Id. at

122.

VI.

A.

We now apply the Bright state-created-danger test to the

summary-judgment record before us. First, we conclude that

37
Gormley was a member of a discrete class of victims subject to

the foreseeable harms set in motion by defendants. Cf. Bright,

supra, 443 F.3d at 281. Ancora was a state psychiatric facility

controlled and supervised by defendants, particularly Ancora’s

Chief Executive Officer, defendant Wood-El. Many of the

residents of Ancora were involuntarily committed because of

mental illnesses that rendered them a danger to themselves or

others. Within the confines of Ancora -- a locked facility --

hospital officials controlled and restrained the movements of

residents and visitors. Cf. DeShaney, supra, 489 U.S. at 200,

109 S. Ct. at 1006, 103 L. Ed. 2d at 262 (holding that

substantive due process is implicated when the State acts

affirmatively to “restrain[] the individual’s freedom to act on

his own behalf -- through incarceration, institutionalization,

or other similar restraint of personal liberty” (emphasis

added)). Despite the control defendants exercised over Ancora,

between October 2003 and December 2005, patients committed 3846

assaults. Of that number, 810 of the assault victims were

visitors and staff, resulting in 200 injuries. Professionals,

such as lawyers and psychiatrists, were required to meet with

their clients and patients in the ward’s day room, where thirty-

five to forty psychiatric residents would mill about. Some of

those residents were psychotic, “going off” and “screaming” in a

scene described as “bedlam.” Fights frequently broke out in the

38
day room, and attorneys and psychiatrists often became the

victims of assaults committed by patients. Three staff

psychiatrists testified that they had been the victims of

patient assaults. Gormley’s supervisor at the Office of the

Public Advocate was attacked by patients three times at Ancora

before the assault on Gormley. The potential for violence was

so palpable that Gormley positioned her chair with her back to

the wall to see from what direction an attack might come.

What is striking is not that the brutal assault on Gormley

in the ever-noisy and tumultuous day room was an extraordinary

event but that it was rather quite ordinary. Assaults in the

day room were not unexpected but fairly foreseeable. Gormley

was a member of a discrete class of foreseeable victims --

professionals required to meet in the volatile day room with

patients.

As made clear in Collins and L.W., Gormley’s status as a

state employee does not render her powerless to seek vindication

of her constitutional rights. See Collins, supra, 503 U.S. at

119, 112 S. Ct. at 1065, 117 L. Ed. 2d at 269 (“The employment

relationship . . . is not of controlling significance.”).

We also conclude, viewing the evidence in the light most

favorable to Gormley, that defendants, particularly Wood-El,

affirmatively used their authority to create the danger that

made Gormley more vulnerable to the assault. Gormley was not

39
acting in the “free world” but rather in a locked institutional

environment over which defendants exercised total control,

including control over where Gormley met with her client, B.R.

Cf. DeShaney, supra, 489 U.S. at 201, 109 S. Ct. at 1006, 103 L.

Ed. 2d at 262. B.R. had a constitutional right to assigned

counsel, S.L., supra, 94 N.J. at 142, and Gormley was designated

by the Office of the Public Advocate to be her counsel. Gormley

could not meet with B.R. off-site in her own office. She had to

see B.R. at Ancora and submit to its regulations. Meetings

between family members and patients were conducted in quiet,

private rooms supervised by staff. Attorneys interviewing their

clients for constitutionally required commitment hearings,

however, were relegated to the explosive day rooms, where no

security guards were posted.

Defendants not only controlled and restrained Gormley’s

physical movements, but they also possessed knowledge of the

special dangers that B.R. might pose to the unsuspecting

attorney, who was meeting her client for the first time. The

institution assigned B.R. Continuous Visual Observation status

because of the particular safety risk the patient posed to

herself and others. A staff member, who presumably knew of

B.R.’s CVO status, brought her to the day room -- brought her in

contact with Gormley. But no one told Gormley of the

heightened-risk assessment. When Gormley sat catty-corner to

40
B.R. because the din in the day room made a confidential,

lawyer-client conversation impossible -- that was the

environment defendants had created, an environment conducive to

the many assaults that frequently occurred in the day room.

Having brought the dangerous patient together with the attorney

in an unsecured setting, Gormley literally was left to fend for

herself when she was viciously attacked. Cf. Bowers, supra, 686

F.2d at 618 (“If the state puts a man in a position of danger

from private persons . . . it is as much an active tortfeasor as

if it had thrown him into a snake pit.”). Gormley’s injuries

were not a result of defendants’ inaction, but the result of

their protocols, the affirmative steps that created an

institutional environment in which patients could freely attack

their attorneys and psychiatrists.

Last, under Bright’s shock-the-conscience standard, Gormley

has presented sufficient evidence to go forward on her claim

that defendants acted with deliberate indifference to the

foreseeable dangers threatening the physical safety of attorneys

constitutionally assigned to represent committed patients. The

expert testimony presented suggested that the level of violence

at Ancora was unique to that institution. In the two years

before B.R.’s assaultive conduct, defendants kept records of

thousands of assaults committed by patients at Ancora, including

hundreds of assaults committed against staff and visitors, such

41
as Gormley. No one can argue that defendants did not have time

to deliberate over those dismal statistics. Defendants are not

called to answer because of a split-second decision made in the

heat of some immediate crisis. Giving Gormley the benefit of

the most favorable evidence and inferences, defendants executed

a policy, over a course of years, in complete disregard of the

known danger that mentally disturbed patients were attacking

professionals, such as Gormley, in the ward’s day room. The

Constitution required that Gormley or some other attorney

represent B.R. at her upcoming commitment hearing. Gormley was

totally dependent on Ancora to provide for her safety while she

was in the facility. Cf. Youngberg, supra, 457 U.S. at 324, 102

S. Ct. at 2462, 73 L. Ed. 2d at 42 (noting that State had

“unquestioned duty to provide reasonable safety for all . . .

personnel within the [psychiatric] institution”). Even after

the assault on Gormley, defendant Wood-El stated that she was

not required to make any changes in the manner in which

“attorney/patient visits were handled.” That expression of

complacency with the ongoing violence committed against

attorneys at Ancora might be viewed by a jury as shocking by

itself.

When the evidence is viewed in the light most favorable to

Gormley, as it must be at this stage, we conclude that a

rational jury could find that all four factors in the Bright

42
test have been met and that defendants therefore violated

Gormley’s substantive-due-process right to be free from state-

created dangers under the Fourteenth Amendment of the United

States Constitution.11

B.

A brief response to the dissent is in order, keeping in

mind that the facts must be viewed in the light most favorable

to Gormley. What makes the egregious -- and hopefully rare --

facts in this case conscience-shocking is the totality of the

circumstances -- a standard commonly used in our constitutional

jurisprudence. See, e.g., State v. Yohnnson, 204 N.J. 43, 64

(2010) (using totality of circumstances to determine whether

defendant’s confession involved knowing, voluntary, and

intelligent waiver of Fifth Amendment right against self-

incrimination); State v. Pineiro, 181 N.J. 13, 22 (2004) (using

11
We do not address Gormley’s argument that her “special-
relationship” with Ancora is a separate basis for liability
because, in the context of the facts before us, that
relationship is subsumed within state-created-danger liability.
Indeed, some courts have questioned whether there is a
distinction between special-relationship and state-created-
danger liability. See Paine v. Cason, 678 F.3d 500, 510 (7th
Cir. 2012); Ketchum v. County of Alameda, 811 F.2d 1243, 1247
(9th Cir. 1987); Estate of Gilmore v. Buckley, 787 F.2d 714, 722
(1st Cir.), cert. denied, 479 U.S. 882, 107 S. Ct. 270, 93 L.
Ed. 2d 247 (1986). But see Kneipp, 95 F.3d at 1209 n.22
(viewing “special relationship” and state-created danger as
distinct). At least for our purposes here, we do not have to
decide whether those doctrines are different.
43
totality of circumstances to determine whether seizure

reasonable under Fourth Amendment).

We cannot look at individual factors in isolation, as does

the dissent. No singular brushstroke reveals the whole picture.

This is a case not just about statistical evidence of a

staggering number of assaults that occurred in a psychiatric

hospital, although those statistics certainly suggested that

violence was a predictable and accepted fact of life at Ancora.

Cf. Brown v. Plata, 563 U.S. ___, ___ n.4, 131 S. Ct. 1910, 1926

n.4, 179 L. Ed. 2d 969, 984 n.4 (2011) (discussing statistical

evidence used to find that overcrowded prison conditions

violated constitutional rights). This is a case with detailed

eyewitness testimony from psychiatrists and lawyers who were

physically attacked and injured while carrying out their

professional duties. The violence occurred in a hospital where

defendants controlled every aspect of life, including the

physical movements of both patients and professionals, and where

and how they met. Gormley had no right to move freely at

Ancora; she was not an agent in the free world. Officials at

Ancora were not just passive observers but -- giving Gormley the

benefit of all reasonable inferences -- the architects of an

environment in which anarchy reigned in the day rooms of Ancora.

All of these factors are part of the tableau suggesting that

44
defendants acted with deliberate indifference to the violence

that threatened lawyers, such as Gormley.

Based on the factual record here, our finding that the

conduct has crossed a constitutional threshold will not open a

floodgate of litigation against public entities. The level of

violence at Ancora was unique among psychiatric hospitals, and

the dissent has cited to no comparable case involving other

public facilities. No one has intimated, for example, that it

is commonplace in schools for students and teachers to be

physically attacked daily while their administrators stand about

and look on indifferently to their physical safety.

Additionally, Congress passed the Federal Civil Rights Act

to provide remedies not available under state law. See Haywood

v. Drown, 556 U.S. 729, 741-42, 129 S. Ct. 2108, 2118, 173 L.

Ed. 2d 920, 932 (2009) (holding that § 1983 actions may be

brought in state courts against correctional officers for

constitutional violations, notwithstanding state’s explicit

statutory bar on such actions). It makes no difference that a

Section 1983 action may provide a different standard of proof or

relief than in an action brought under the New Jersey Tort

Claims Act, N.J.S.A. 59:1-1 to 59:12-3. State courts are

compelled by the Supremacy Clause, U.S. Const. art VI, cl. 2, to

apply federal law. See Felder v. Casey, 487 U.S. 131, 138, 108

S. Ct. 2302, 2307, 101 L. Ed. 2d 123, 137-38 (1988); Greenway

45
Dev. Co. v. Borough of Paramus, 163 N.J. 546, 558 (2000) (“A

public entity may not use a state statute, such as the [Tort

Claims Act], to abrogate a claimant’s constitutional rights.”).

We adopt the Bright test for conscience-shocking behavior,

including its deliberate-indifference component. The dissent

accepts this standard as well. Post at ___ (slip op. at 6-7).

The test is a high bar to vault, and one common in substantive-

due-process jurisprudence. See, e.g., Lewis, supra, 523 U.S. at

850, 118 S. Ct. at 1718, 140 L. Ed. 2d at 1060; Collins, supra,

503 U.S. at 128, 112 S. Ct. at 1070, 117 L. Ed. 2d at 275;

United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095,

2101, 95 L. Ed. 2d 697, 708 (1987) (“So-called ‘substantive due

process’ prevents the government from engaging in conduct that

‘shocks the conscience’ . . . .” (citations omitted)). That

standard, moreover, is higher than the negligence, or even gross

negligence, standard under which public officials and employees

may be found liable in Tort Claims Act cases. See L.W. v.

Grubbs (II), 92 F.3d 894, 900 (9th Cir. 1996) (dismissing

plaintiff’s claims where, after remand for trial, jury found

only gross negligence, rather than requisite deliberate

indifference). Application of the Federal and State Civil

Rights Acts -- and through them the substantive-due-process

guarantee of the Fourteenth Amendment -- is not subversive of

the Tort Claims Act, as the dissent suggests. The drafters of

46
the Tort Claims Act undoubtedly intended it to co-exist with

federal law.

For these reasons we part ways with the dissent.

VII.

A.

We next consider whether the Appellate Division properly

dismissed the civil-rights claims against defendants on the

ground of qualified immunity.

Qualified immunity is a doctrine that shields government

officials from a suit for civil damages when “their conduct does

not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” Harlow

v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L.

Ed. 2d 396, 410 (1982). Qualified immunity “is an immunity from

suit,” the right to avoid the rigors and costs of trial.

Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815,

86 L. Ed. 2d 411, 425 (1985) (emphasis omitted). Whether an

official is covered by qualified immunity is a matter of law to

be decided by a court, “preferably on a properly supported

motion for summary judgment or dismissal.” Wildoner v. Borough

of Ramsey, 162 N.J. 375, 387 (2000); see also Pearson v.

Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815, 172 L. Ed. 2d

565, 573 (2009). “Qualified immunity balances two important

47
interests -- the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield

officials from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson, supra, 555 U.S. at

231, 129 S. Ct. at 815, 172 L. Ed. 2d at 573.

For a right to be clearly established, “[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, 107 S. Ct. 3034, 3039,

97 L. Ed. 2d 523, 531 (1987). The Third Circuit has “‘adopted a

broad view of what constitutes an established right of which a

reasonable person would have known.’” Stoneking v. Bradford

Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989) (quoting

Sourbeer v. Robinson, 791 F.2d 1094, 1103 (3d Cir. 1986), cert.

denied, 483 U.S. 1032, 107 S. Ct. 3276, 97 L. Ed. 2d 779

(1987)). Officials are expected to “‘apply general, well-

developed legal principles,’” in “analogous factual situations.”

Ibid. (citations omitted). The Third Circuit “does not require

‘relatively strict factual identity’ between applicable

precedent and the case at issue.” Ibid. (citation omitted); see

also Ryan v. Burlington Cnty., 860 F.2d 1199, 1208-09 (3d Cir.

1988) (“‘Although officials need not predic[t] the future course

of constitutional law, they are required to relate established

law to analogous factual settings.’” (alteration in original)

48
(internal quotation marks omitted) (quoting People of Three Mile

Island v. Nuclear Regulatory Comm’rs, 747 F.2d 139, 144 (3d Cir.

1984))), cert. denied, 490 U.S. 1020, 109 S. Ct. 1745, 104 L.

Ed. 2d 182 (1989).

B.

We conclude that the right to be free from state-created

dangers was clearly established at the time of the assault on

Gormley in 2005. Since DeShaney, most federal circuit courts of

appeals have adopted the state-created danger doctrine,

including the Third Circuit in Kneipp in 1996. Significantly,

in 1992, the Ninth Circuit applied the doctrine to an

institutional setting analogous to Ancora. L.W., supra, 974

F.2d at 120 (female nurse assigned to work alone with prison

inmate with known history of violence against women). Although

this Court has yet to speak to the issue, in 2003 the Appellate

Division in Gonzales, supra, adopted Kneipp’s formulation of the

state-created-danger doctrine, 357 N.J. Super. at 347, and, in

2004, reaffirmed state-created danger as a theory of liability,

Estate of Strumph v. Ventura, 369 N.J. Super. 516, 525-26 (App.

Div.), certif. denied, 181 N.J. 546 (2004). The decisional law

of the Appellate Division is not only binding on our trial

courts, but is an expression of the law of our State unless the

New Jersey Supreme Court says otherwise. See Brundage v. Estate

of Carambio, 195 N.J. 575, 593 (2008); see also Pressler &

49
Verniero, Current N.J. Court Rules, comment 3.1 on R. 1:36-3

(2014).

The contours of the state-created-danger doctrine were

clearly established at the time of the attack on Lorraine

Gormley in Ancora’s day room. We hold that, given the history

of violence at Ancora and the requirement that attorneys meet

with their clients in crowded and chaotic day rooms populated by

patients who were mentally ill and dangerous, reasonable

hospital administrators knew or should have known that the

conditions they created -- fraught with violence -- breached the

substantive-due-process guarantee of the United States

Constitution. This is not a case in which officials acting in

good faith had to engage in perilous predictions about the

application of the law or the foreseeable harm that might flow

from their conduct.

We therefore reverse the Appellate Division, which

dismissed the federal civil-rights claim on qualified-immunity

grounds.

VIII.

Last, we add that the Appellate Division erred to the

extent that it barred Gormley’s claim for injunctive relief

based on qualified immunity. First, we disagree with

defendants’ argument that Gormley waived her injunctive-relief

50
claim by not asserting it before the Appellate Division.

Gormley succeeded before the trial court, and her injunctive

relief claim was a live claim. She had no reason to bring the

matter before the Appellate Division. Therefore, the doctrine

of waiver has no applicability here.

More importantly, qualified immunity does not bar actions

for injunctive relief. See, e.g., Wood v. Strickland, 420 U.S.

308, 314 n.6, 95 S. Ct. 992, 997 n.6, 43 L. Ed. 2d 214, 221 n.6

(1975) (“[I]mmunity from damages does not ordinarily bar

equitable relief as well.”), abrogated in part on other grounds

by Harlow, supra, 457 U.S. at 817-18, 102 S. Ct. at 2738, 73 L.

Ed. 2d at 410; Hill v. Borough of Kutztown, 455 F.3d 225, 244

(3d Cir. 2006) (“[T]he defense of qualified immunity is

available only for damages claims -- not for claims requesting

prospective injunctive relief.”); Presbyterian Church (U.S.A.)

v. United States, 870 F.2d 518, 527 (9th Cir. 1989) (“Qualified

immunity is an affirmative defense to damage liability; it does

not bar actions for declaratory or injunctive relief.”). As

such, Gormley would have had the right to pursue injunctive

relief even had qualified immunity been granted to defendants.

IX.

We reverse the judgment of the Appellate Division granting

qualified immunity to defendants and dismissing Gormley’s

51
federal civil-rights claims. We affirm the judgment of the

Appellate Division based on the summary-judgment record, finding

that the danger created by defendants that resulted in

foreseeable injuries to Gormley violated the substantive-due-

process guarantee of the United States Constitution. We

determine here only that, viewing the evidence in the light most

favorable to Gormley, the trial court properly denied

defendants’ motion for summary judgment.12 We do not express any

opinion on the merits of her claims, which ultimately a jury

will resolve. We remand to the Law Division for further

proceedings consistent with this opinion.

CHIEF JUSTICE RABNER and JUDGE RODRÍGUEZ (temporarily
assigned) join in JUSTICE ALBIN’s opinion. JUSTICE LaVECCHIA
filed a separate, dissenting opinion, in which JUSTICE PATTERSON
joins. JUDGE CUFF (temporarily assigned) did not participate.

12
On the record before us, defendants moved collectively for
relief and did not differentiate the strength of Gormley’s
evidence against each individual defendant.
52
 SUPREME COURT OF NEW JERSEY
A-101/106 September Term 2011
069717

LORRAINE GORMLEY,

Plaintiff-Appellate
and Cross-Respondent,

v.

LATANYA WOOD-EL, Chief
Executive Officer, Ancora
Psychiatric Hospital;
JENNIFER VELEZ, Current
Commissioner and WILLIAM
WALDMAN, Former Commissioner,
New Jersey Department of
Human Services; KEVIN
MARTONE, Current Assistant
Commissioner; and ALAN G.
KAUFMAN, Former Director,
Division of Mental Health
Services, Department of Human
Services,

Defendants-Respondents
and Cross-Appellants.

JUSTICE LaVECCHIA, dissenting.

Plaintiff, Lorraine Gormley, a Public Defender lawyer for

involuntarily committed psychiatric patients, was attacked by a

client, B.R., in a community “day room” in Ancora Psychiatric

Hospital while meeting the newly committed woman for the first

time. The unprovoked attack caused plaintiff serious injuries.

Although plaintiff sought relief on a number of theories, in

this appeal we consider her claim against State Department of

Human Services officials and Ancora’s past and present

1
administrators based on the theory that those defendants

violated her substantive due process right to be free from

state-created danger. Through that alleged due process

violation, plaintiff seeks civil damages under 42 U.S.C.A.

§ 1983 (Section 1983). Although prior to argument before this

Court plaintiff focused on her Section 1983 claim, she invokes

the same reasoning to support her parallel claim for civil

damages under the New Jersey Civil Rights Act (CRA), N.J.S.A.

10:6-1 to -2. Plaintiff also seeks injunctive relief under both

statutes.

As the majority acknowledges, neither Section 1983 nor the

CRA confers affirmative rights upon plaintiff. Therefore,

plaintiff must establish a colorable substantive due process

constitutional deprivation. I cannot agree with the majority’s

conclusion that a substantive due process state-created-danger

claim has been presented in this matter. Moreover, even if I

were to agree with the majority that a debatable claim has been

set forth, I cannot conclude that such a claim was clearly

established at the time plaintiff suffered her injuries. Thus,

I would affirm the Appellate Division’s judgment that found

applicable the doctrine of qualified immunity, which shields the

individual defendants from personal civil damages. I agree with

the majority that claims for injunctive relief are not barred by

the doctrine of qualified immunity. Nonetheless, for the

2
reasons that follow, I respectfully dissent from the judgment of

the Court.

I.

It is important at the outset to recognize that plaintiff

was injured by a private actor, not a state actor. Generally, a

state does not violate the Due Process Clause of the Fourteenth

Amendment if it fails to protect its citizen from private

violence. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489

U.S. 189, 195-96, 109 S. Ct. 998, 1003, 103 L. Ed. 2d 249, 258-

59 (1989). In DeShaney, a case that involved violence by a

private actor,1 the United States Supreme Court stated that “the

Due Process Clauses generally confer no affirmative right to

governmental aid, even where such aid may be necessary to secure

life, liberty, or property interests of which the government

itself may not deprive the individual.” Id. at 196, 109 S. Ct.

at 1003, 103 L. Ed. 2d at 259. Having no obligation to provide

such services, a state cannot be held liable for injuries that

would have been avoided if such protection had been afforded.

Id. at 196-97, 109 S. Ct. at 1003-04, 103 L. Ed. 2d at 259.

1
In DeShaney, supra, a young boy was severely beaten by his
father, resulting in permanent and substantial brain damage.
489 U.S. at 192-93, 109 S. Ct. at 1001-02, 103 L. Ed. 2d at 256-
57. Prior to the incident that caused the brain damage, the
county department of social services had failed to remove the
boy from his father’s custody for two years, despite the boy’s
repeated hospitalizations and department case workers’ recorded
suspicions of child abuse. Ibid.
3
However, an exception for persons in a “special relationship”

with the state was noted.

The Supreme Court allowed for the viability of a Section

1983 claim based on a violation of substantive due process when

a special relationship arises that imposes on the state

affirmative duties of care and protection, such as when the

state takes a person into custody against his will. By way of

example, the Supreme Court discussed a duty to provide medical

services to involuntarily committed mental patients, to provide

medical services to people injured in the process of being

arrested, and perhaps to avoid moving a child in state custody

into an abusive foster home. Id. at 199-201 & n.9, 109 S. Ct.

at 1005-06 & n.9, 103 L. Ed. 2d at 261-63 & n.9. That “special

relationship” exception has spawned numerous cases in which

plaintiffs have sought to impose Section 1983 liability on the

basis of alleged violations of substantive due process. See,

e.g., Henry A. v. Willden, 678 F.3d 991, 998-1001 (9th Cir.

2012); Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (en

banc); Ying Jing Gan v. City of New York, 996 F.2d 522, 534 (2d

Cir. 1993). It provides the basis for one of plaintiff’s claims

in this case.

A comment by the Supreme Court provides the genesis for a

second theory of Section 1983 liability on the basis of an

alleged substantive due process violation. This “state-created

4
danger” exception arises from the DeShaney Court’s statement

that “[w]hile the State may have been aware of the dangers that

[the plaintiff] faced in the free world, it played no part in

their creation, nor did it do anything to render [the plaintiff]

more vulnerable to them.” 489 U.S. at 201, 109 S. Ct. at 1006,

103 L. Ed. 2d at 262. That observation has been the basis on

which a state-created-danger theory of liability has been

accepted by several Circuit Courts of Appeals. See, e.g.,

Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006),

cert. denied, 549 U.S. 1264, 127 S. Ct. 1483, 167 L. Ed. 2d 228

(2007); Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996);

Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir.), cert. denied,

510 U.S. 947, 114 S. Ct. 389, 126 L. Ed. 2d 337 (1993); Dwares

v. City of New York, 985 F.2d 94, 98-99 (2d Cir. 1993); Freeman

v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990). Although the

state-created-danger theory has not been adopted affirmatively

by the United States Supreme Court, that Court’s comment in

DeShaney has been regarded as suggesting, by inference, the

possibility of such cause of action, as the majority notes. See

ante at ___ n.9 (slip op. at 28-29).

The Court of Appeals for the Third Circuit endorsed a

state-created danger cause of action in Kneipp, and refined the

elements for such an action in Bright. As established in

Bright, supra, a state-created-danger cause of action arises

5
when:

(1) the harm ultimately caused was
foreseeable and fairly direct;

(2) a state actor acted with a degree of
culpability that shocks the conscience;

(3) a relationship between the state and
the plaintiff existed such that the
plaintiff was a foreseeable victim of the
defendant’s acts, or a member of a discrete
class of persons subjected to the potential
harm brought about by the state’s actions,
as opposed to a member of the public in
general; and

(4) a state actor affirmatively used his or
her authority in a way that created a danger
to the citizen or that rendered the citizen
more vulnerable to danger than had the state
not acted at all.

[443 F.3d at 281 (internal quotation marks
and footnotes omitted).]

Like my colleagues in the majority, I accept that a Section

1983 claim may be advanced based on an alleged violation of

substantive due process on state-created-danger and special

relationship theories of liability, notwithstanding that the

United States Supreme Court has yet to uphold the state-created-

danger theory in any setting. Indeed, decisions of our

Appellate Division already have signaled a willingness to employ

the state-created-danger theory when and if an appropriate set

of circumstances is presented, although no Appellate Division

panel so far has found such a set of facts to exist. See Estate

of Strumph v. Ventura, 369 N.J. Super. 516, 525-26 (App. Div.),

6
certif. denied, 181 N.J. 546 (2004); Gonzales v. City of Camden,

357 N.J. Super. 339, 347 (App. Div. 2003). I would be prepared

to do the same for state-created danger, provided that the

governing analysis conforms to the Bright test.

The Bright formulation employed by the Court of Appeals for

the Third Circuit has much to commend it. It requires an

affirmative act or acts by the state that created the danger or

rendered the plaintiff more vulnerable. Bright, supra, 443 F.3d

at 282-84. It is consonant with the Supreme Court’s decision in

DeShaney to find that the Constitution forbids state actors from

affirmatively acting with willful disregard for a specific risk

to an individual’s safety in a way that creates a foreseeable,

direct risk of harm to the plaintiff. Importantly, it requires

that overall the government’s action or inaction must shock the

conscience. Id. at 281 (citing Cnty. of Sacramento v. Lewis,

523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)). The

fact that state defendants simply “stood by,” or that they could

have “done more” in a particular set of circumstances, is

insufficient without more to meet Bright’s “shocks the

conscience” requirement for culpability. The Bright standard

calls for affirmative acts. Id. at 282-84. Acts of omission

must be particularly scrutinized for egregiousness, which must

include a showing of deliberate indifference and disregard for

constitutional rights. See Henderson v. Gunther, 931 P.2d 1150,

7
1161 (Colo. 1997).

II.

In this appeal, plaintiff argues two theories of liability

under Section 1983: special relationship and state-created

danger.

Despite plaintiff’s recognition that those theories of

liability involve different standards, the majority melds the

two theories into a single -- and novel -- cause of action. See

ante at ___ n.11 (slip op. at 43). I cannot adopt that

analytical framework. The two theories are distinct and should

be considered separately.

A.

In respect of special relationship, I disagree that, as a

visitor to Ancora, a state psychiatric hospital, plaintiff held

a status equivalent to that of the institutionalized persons

residing in that hospital. Persons committed to hospitalization

are committed to the State’s care. Although plaintiff is a

lawyer whose professional obligation necessitated a consultative

visit with her client, she shares the status of any family

member, friend, or privately retained attorney or medical

professional who enters the facility to visit a committed

patient. As such, she is far from the equivalent of a patient

committed to the custody of the psychiatric institution against

her will. See DeShaney, supra, 489 U.S. at 199, 109 S. Ct. at

8
1005, 103 L. Ed. 2d at 261. No case cited by any party or the

majority -- from any court -- supports the notion that plaintiff

is somehow equivalent to a committed patient to whom the State

owes a special relationship.

Special relationship cases hinge on custody or a similar

deprivation of liberty. See, e.g., Henderson, supra, 931 P.2d

at 1157-58 (citing cases refusing to extend special relationship

to circumstances beyond incapacitation or institutionalization).

Even if plaintiff’s presence in a state psychiatric hospital

effected a minimal restraint of liberty, I would not find it

sufficient to create a special relationship. As the Third

Circuit has emphasized, DeShaney uses a test for “physical

custody” when determining whether a plaintiff has a special

relationship with the state. See Ye v. United States, 484 F.3d

634, 635, 639 (3d Cir. 2007), cert. denied, 552 U.S. 1099, 128

S. Ct. 905, 169 L. Ed. 2d 729 (2008). The closest plaintiff can

come to citing an analogous case is the district court decision

in Glaspy v. Malicoat, 134 F. Supp. 2d 890 (W.D. Mich. 2001),

but that case is inapposite. In Glaspy, a prison visitor case,

prison officials took direct, affirmative acts toward the

plaintiff (a visiting father), refusing his repeated requests to

access a restroom to urinate. Id. at 892-93. As a result, the

plaintiff suffered pain while waiting to use the restroom, and

ultimately suffered the humiliation of urinating in his pants.

9
Ibid.

That district court case is distinguishable from this case

because no direct affirmative act was taken toward plaintiff by

state officials. The fact that Ancora’s general visitation

policy provided for plaintiff and certain other visitors to meet

with patients anywhere on the ward generally, or in the

community day room where patients congregated, does not, in my

view, meet the level of control over plaintiff’s personal

behavior generally that gives rise to a special relationship.

State actors exerted no direct control over plaintiff’s

movement, seating, or actions within the day room in which this

attack took place. Nothing in this case comes close to

resembling the direct assertion of control over the prison

visitor that was central to the court’s decision in Glaspy. See

id. at 895. In sum, because plaintiff was never under custodial

control in any sense that fits the DeShaney Court’s test for

physical custody, I find it impossible to conclude that, on

these facts, plaintiff presents a case of special relationship

liability.

B.

The analysis for state-created danger requires a different

examination, specifically one that entails use of the four

Bright factors:

(1) the harm ultimately caused was

10
 foreseeable and fairly direct;

(2) a state actor acted with a degree of
culpability that shocks the conscience;

(3) a relationship between the state and the
plaintiff existed such that the plaintiff
was a foreseeable victim of the defendant’s
acts, or a member of a discrete class of
persons subjected to the potential harm
brought about by the state’s actions, as
opposed to a member of the public in
general; and

(4) a state actor affirmatively used his or
her authority in a way that created a danger
to the citizen or that rendered the citizen
more vulnerable to danger than had the state
not acted at all.

[Bright, supra, 443 F.3d at 281 (internal
quotation marks omitted).]

In Ye, supra, the Third Circuit explained that the fourth factor

can be broken down further, as follows:

(1) a state actor exercised his or her
authority,

(2) the state actor took an affirmative
action, and

(3) this act created a danger to the citizen
or rendered the citizen more vulnerable to
danger than if the state had not acted at
all.

[484 F.3d at 638-39.]

That is the test that I would apply to plaintiff’s claim. It is

a rigorous test and, for me, it is far from clear that plaintiff

has advanced a cause of action that is even debatable.

That plaintiff was subjected to serious injuries in the

11
course of performing her professional obligation is deplorable.

But the sympathy to which she is entitled does not help fashion

a constitutional rule of law in this matter that promotes

desirable public policy and predictability in application.

Indeed, I believe that, by letting plaintiff’s claim go to the

jury, the majority effectively embraces extensive Section 1983

state liability on the basis of state-created danger to persons

visiting inpatients in state psychiatric hospitals.2 The

parameters of the liability created by the majority’s holding

are unclear. Nevertheless, that holding will impact numerous

state, county, and municipal operational settings, such as

schools, facilities for the developmentally disabled, and

prisons, where persons are in the care and custody of

governmental actors for all or substantial portions of most

days.

2
The majority also fashions on these facts a new CRA claim based
on state-created danger. Circuit Courts reflect no consensus on
the precise elements of a federal state-created-danger claim
because the United States Supreme Court has not yet recognized
the action. See generally Jeremy Daniel Kernodle, Note,
Policing the Police: Clarifying the Test for Holding the
Government Liable under 42 U.S.C. § 1983 and the State-Created
Danger Theory, 54 Vand. L. Rev. 165 (2001). However, our Court
has locked onto this case as a basis for establishing this new
state-created-danger claim that will have the capacity to
greatly expand tort-like liability for governmental actors. See
Lewis, supra, 523 U.S. at 848, 118 S. Ct. at 1718, 140 L. Ed. 2d
at 1059 (“[T]he Fourteenth Amendment is not a ‘font of tort law
to be superimposed upon whatever systems may already be
administered by the States . . . .’” (quoting Paul v. Davis, 424
U.S. 693, 701, 96 S. Ct. 1155, 1160, 47 L. Ed. 2d 405, 413
(1976))).
12
 Respectfully, I disagree with the majority as to whether

any of the state officials’ actions in this case were

affirmative acts sufficient to “shock the conscience” under the

Bright test. The majority gives great weight to the State’s

failure to specifically inform plaintiff about B.R.’s watch

status.3 However, the failure to inform plaintiff of the

supervised watch status on which her client was placed is vastly

different from the broken affirmative promises to the nurse in

L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), cert. denied, 508

U.S. 951, 113 S. Ct. 2442, 124 L. Ed. 2d 660 (1993),4 or the

affirmative denial of the father’s requests in Glaspy. Rather,

B.R. was permitted to be among people in the day room and the

State owed all the other patients in that room protection due to

their special relationship to the State -- because they were

committed to a psychiatric hospital. Nevertheless, B.R. and

other patients were permitted to mingle, in the day room

community, with themselves and in the company of others. That

is where plaintiff met with her new client. It is far from

3
B.R. was on “close visual observation” status, meaning an
Ancora employee was required to maintain visual observation of
her; there is no proximity requirement with this status. Aides
were present in the day room when the attack took place.
4
It bears noting that, on remand, the jury in L.W. determined
that the defendant had acted with gross negligence, but not
recklessness or deliberate indifference. L.W. v. Grubbs, 92
F.3d 894, 895 (9th Cir. 1996). Without a finding of deliberate
indifference, the Court of Appeals for the Ninth Circuit threw
out the jury verdict in plaintiff’s favor. Id. at 900.
13
clear that the watch status for B.R. was unusual or that other

patients in the room did not have a similar status. I cannot

conclude that the state officials’ failure to warn plaintiff of

that status rises to a conscience-shocking level of culpability.5

Moreover, the majority places great reliance on statistics

about past incidents of patient outbursts or assaults that

occurred in the day room in the years preceding this incident.

Overreliance on those statistics, in my view, skews this Court’s

analysis and requires comment. The fact that there had been

numerous attacks in the day room in years preceding this

incident does not predict that any particular patient would act

out or attack another person in the room. There is no direct

correlation between the past violence and the actual act of

violence by B.R. toward plaintiff. A history of patient

violence might affect staffing levels -- a resource-driven

determination that is rightfully assessed under state tort

law -- but it should not give rise to a constitutional violation

5
Indeed, the majority’s analysis fails to provide the slightest
guidance on whether giving notice of such watch status would
have been enough to avoid a substantive due process claim.
Instead, my colleagues cite to a totality-of-the-circumstances
approach that will leave government officials constantly
uncertain as to whether they are at risk of personal liability.
That is not the basis for sound governmental operation. Indeed,
the Supreme Court has noted its reluctance to expand
substantive-due-process liability “because guideposts for
responsible decisionmaking in this unchartered area are scarce
and open-ended.” Collins v. City of Harker Heights, 503 U.S.
115, 125, 112 S. Ct. 1061, 1068, 117 L. Ed. 2d 261, 273 (1992).
14
on the facts of this case.

Foreseeability, a necessary element under the Bright test,

is not advanced by this statistical history of incidents

involving past patients and conditions that may not bear any

resemblance to conditions in the day room on the day in which

plaintiff suffered her injuries. Bright’s test requires that

the danger must have been foreseeable and fairly direct. For

me, information about other patients’ behavior in the past does

not make the harm visited on plaintiff foreseeable and fairly

direct.

In sum, in my view plaintiff does not present a set of

facts that debatably rise to a substantive due process

violation. The Bright standard of conduct that shocks the

conscience is not satisfied and therefore this claim should not

advance past summary judgment.

III.

Even if I were to agree with the majority’s indulgent view

of these facts, I would nonetheless conclude that plaintiff’s

case should only be allowed to go to the jury in limited

fashion. I would not allow her novel claim for civil damages

against the state governmental actors to proceed. In my view,

there was no clearly established right to proceed on the basis

of state-created danger on facts such as these that would have

alerted government officials that they were violating any

15
clearly established constitutional right.

The doctrine of qualified immunity shields government

officials from personal liability under Section 1983 “insofar as

their [discretionary] conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410

(1982). Unless a government officer violates a right so clearly

established that a reasonable official would have understood

that his or her actions violated that right, governmental actors

are free to perform their duties without being hobbled by the

constant threat of individual liability under Section 1983.

Anderson v. Creighton, 483 U.S. 635, 640-41, 107 S. Ct. 3034,

3039, 97 L. Ed. 2d 523, 531 (1987). The standard is

intentionally set high before personal liability will attach.

In my view, the doctrine of qualified immunity applies in this

instance because prior cases do not clearly establish that a

claim on the basis of state-created danger would apply under

facts such as these.

Respectfully, I believe the majority overstates any

similarity between this case and L.W., supra, in which a nurse,

who was sexually assaulted by the prison inmate with whom she

was assigned to work, had been affirmatively and falsely told

that she would be under the protective supervision of guards

16
throughout her assigned task. 974 F.2d at 120. Unlike in L.W.,

no affirmative promises or false statements were given to

plaintiff in this case. Similarly, the state officials in

Glaspy, supra, exercised a degree of direct control over the

father’s actions that goes well beyond identifying places for

visitors to meet with patients, as defendants did in this case.

134 F. Supp. 2d at 892-93. Neither the majority nor the parties

cite any other cases that more persuasively establish the

applicability of a state-created-danger cause of action in

circumstances similar those of this case. Indeed, in a

persuasive decision on similar facts, the Supreme Court of

Colorado refused to find a triable claim of state-created danger

based on an inmate’s attack on a prison employee. See

Henderson, supra, 931 P.2d at 1160-62 (rejecting claim based on

failure to provide safe working environment).

In sum, if a cause of action were cognizable on these

facts, I would find that the doctrine of qualified immunity

applies in this instance. The doctrine should shield the

defendant governmental officials from this action seeking to

impose personal liability on them in their capacity as State

Department of Human Services officials or administrators of

Ancora Psychiatric Hospital. I do not believe that a state-

created-danger theory for a cause of action like the one that

plaintiff advances in this matter was clearly established under

17
law when the events underlying this action took place.

Certainly, in my view, no case had been decided that found an

actionable state-created-danger claim that resembled this one.

Moreover, I am concerned that this new theory of

constitutional violation for state-created danger will supplant

the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and its

careful delineation of public entity and individual liability.

Under the Tort Claims Act, willful and wanton action will render

a governmental employee bereft of state indemnification and

therefore personally responsible for civil damages. See

N.J.S.A. 59:10-1 (providing for indemnification of public

employee when defended by Attorney General); N.J.S.A. 59:10A-2

(allowing Attorney General to refuse to defend public employee

for act or omission not in scope of employment or fraud, willful

misconduct, or actual malice). The majority’s analysis, as

applied in this case, suggests that a lesser showing will permit

recovery against individual governmental officials under this

new constitutional violation.

Thus, I would apply the doctrine of qualified immunity to

bar plaintiff’s money damages claims. As the majority notes,

plaintiff also sought injunctive relief. Because qualified

immunity does not act as a bar to equitable relief, Hill v.

Borough of Kutztown, 455 F.3d 225, 244 (3d Cir. 2006),

plaintiff’s claim for injunctive relief would not be barred by

18
qualified immunity. To that extent I do not disagree with the

majority.

For the foregoing reasons, I respectfully dissent from the

judgment of the Court.

JUSTICE PATTERSON joins in this opinion.

19
 SUPREME COURT OF NEW JERSEY

NO. A-101/106 SEPTEMBER TERM 2011
ON APPEAL FROM Appellate Division, Superior Court
LORRAINE GORMLEY,

Plaintiff -Appellant
and Cross-Respondent,

v.

LATANYA WOOD-EL, Chief
Executive Officer, Ancora
Psychiatric Hospital;
JENNIFER VELEZ, Current
Commissioner and WILLIAM
WALDMAN, Former Commissioner,
New Jersey Department of
Human Services; KEVIN
MARTONE, Current Assist ant
Commissioner; and ALAN G.
KAUFMAN, Former Director,
Division of Mental Health
Services, Department of Human
Services,

Defendants-Respondents
and Cross-Appellants.

DECIDED June 30, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY Justice LaVecchia
AFFIRM IN PART/
CHECKLIST REVERSE IN DISSENT
PART/REMAND
CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) ---------------------- --------------------
3 2

1