Lizette Vargas v. City of Philadelphia

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 13-4590
_____________

LIZETTE VARGAS,
Individually & In Her Capacity as Administratrix of
Estate of Tabitha Elaine Gonzalez Deceased,
Appellant

v.

CITY OF PHILADELPHIA;
POLICE OFFICER MATTHEW BLASZCZYK;
POLICE OFFICER KEITH WHITE;
JOHN DOES 1-10
_______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-11-cv-2639)
District Judge: Hon. Thomas N. O’Neill, Jr.
_______________

Argued
January 21, 2015

Before: FISHER, JORDAN, and GREENAWAY, JR.,
Circuit Judges.
 (Filed: April 17, 2015)
_______________

James E. Hockenberry, Esq. [ARGUED]
Law Office of Leon Aussprung
2005 Market Street – Ste. 2300
Philadelphia, PA 19103
Counsel for Appellant

Jane L. Istvan, Esq. [ARGUED]
Mark Maguire, Esq.
Amanda C. Shoffel, Esq.
City of Philadelphia
Law Department
1515 Arch Street – 17th Fl.
Philadelphia, PA 19102
Counsel for Appellees
_______________

OPINION OF THE COURT
_______________

JORDAN, Circuit Judge.

Appellant Lizette Vargas challenges an order from the
United States District Court for the Eastern District of
Pennsylvania granting summary judgment against her on her
constitutional and state-law claims against the City of
Philadelphia (“the City”) and two Philadelphia police officers
(collectively, with the City, the “City Defendants”). She
brought those claims on her own behalf and on behalf of the
estate of her daughter, Tabitha Gonzalez, based on events

2
associated with Tabitha’s death from asthma. Although the
underlying circumstances of the case are tragic, the District
Court’s legal conclusion was correct, and we will affirm.

I. BACKGROUND

A. Factual Background1

On the night of August 19, 2009, shortly before
midnight, 15-year old Tabitha began suffering from an
asthma attack while at her home in North Philadelphia. Her
mother, Ms. Vargas, who was also at home, suggested that
she use her inhaler and nebulizer. While Tabitha was using
the nebulizer, the severity of the asthma attack prompted
Vargas to call 911 for emergency assistance.

As she waited for the paramedics to arrive, Vargas
went outside and found Tabitha lying on the sidewalk in front
of the house. At first, Tabitha was conscious and gasping for
air, but she quickly lapsed into unconsciousness. Tabitha’s
cousin Maritza Rojas performed CPR on her, but it was
unsuccessful. Erik Franklin – Maritza’s boyfriend –and two
neighbors lifted Tabitha into the backseat of a car belonging

1
We note the conflicting stories emerging from the
interaction Vargas had with the police, but we construe the
facts in the light most favorable to her, the party opposing
summary judgment. Gonzalez v. Sec’y of Dep’t of Homeland
Sec., 678 F.3d 254, 257 (3d Cir. 2012) (“When reviewing a
grant of summary judgment the court must view the facts in
the light most favorable to the nonmoving party and draw all
inferences in that party’s favor.” (internal quotation marks
omitted)).

3
to Julia Diaz, another of Tabitha’s cousins, so that Diaz could
take her to the hospital. During this time, Vargas and Diaz
both dialed 911, placing five separate and understandably
frantic calls between 12:08 a.m. and 12:14 a.m. In response
to a report of “a person screaming” made at 12:10 a.m. and 40
seconds, the Police Communications Center dispatched police
officers Keith White and Matthew Blaszczyk at 12:11 a.m.
and 16 seconds.2 (App. at 152-54, 157.) Neither officer was
made aware that the call was regarding a medical

2
A “computer-aided dispatch” (or “CAD”) report is
generated by the police communications center when a
dispatcher receives a 911 call. The computer system records
information related to the call, including police response and
activity. For example, it notes when officers input
information in the computer terminal located in their patrol
vehicle, called a mobile data transmitter (“MDT”). The
officers push a button on the MDT to report when they are en
route to a location and when they have arrived.

4
emergency.3 The police dispatch report notes that the officers
arrived at Vargas’s home at 12:13 a.m. and 56 seconds.4

The events immediately following the arrival of
Officers White and Blaszczyk are in dispute. Vargas testified
that Franklin and Tabitha were in the backseat of Diaz’s car
while Vargas was in the front passenger seat and Diaz, as the
driver, had pulled the car partly out of its parking spot at the
curb when the police officers stopped their car so that it
blocked Diaz’s. According to Vargas, the officers’ vehicle
was positioned so that its back door prevented her from
opening her passenger-side door. She claims that, as an
officer approached, she banged on her door to “let [the

3
Calls are coded as “a person screaming” when the
dispatcher is unable to communicate with the person on the
line and the operator can only hear screaming. Other 911
calls made by Ms. Vargas that night were coded for “hospital
cases,” i.e., medical emergencies, and referred to the Fire
Department for a response. (App. at 151, 153.) There was
evidence that the 911 computer system cross referenced the
medical emergency calls with the report of the woman
screaming, but that information was not communicated to the
officers who responded to the call.
4
According to the CAD report, the “on scene” button
on the MDT registered to Officers Blaszczyk’s and White’s
patrol vehicle was pushed at 12:13 and 56 seconds. See supra
note 2. Vargas notes, however, that police records show the
officers ran a vehicle tag at 12:13 and 42 seconds, suggesting
that they arrived slightly before the time at which they pushed
the “on scene” button.

5
officer] know that [she could not] open up the door,” while
Diaz rolled down her window and told the officer that they
had Tabitha in the car and had to leave immediately. (App. at
85.) Vargas testified that, as Diaz was trying to explain their
medical emergency, the officer walked in front of Diaz’s car
to the driver’s side and said, “get the f*** out of the car, turn
off the engine now.” (App. at 86.) Diaz then turned off the
engine and got out of the car. Because Vargas could not open
her passenger-side door, she climbed over the center console
and got out of the car through the driver-side door that Diaz
had left open. At that point, Vargas said, the police officer
pulled open one of the back doors, causing Tabitha to tumble
partway out of the car and onto the ground. Vargas
immediately attempted to move towards her daughter but was
prevented from doing so by one of the officers, who, she said,
“blocked” her. (App. at 87.)

Officers White and Blaszczyk testified that they did
not impede the movement of any car when they pulled to a
stop in front of the Vargas residence. They also claim that
Tabitha was already on the sidewalk upon their arrival.
Officer Blaszczyk testified that he saw “a female laying on
the sidewalk” (App. at 296-97) as he got out of the patrol car,
and Officer White similarly said he observed “two Hispanic
males that were over top of a[] Hispanic female who was on
the ground” (App. at 168). The officers assert that, along
with the two Hispanic males, they attempted to move Tabitha
into the car and “got her halfway into the car and she just
didn’t fit into the back door.” (App. at 168.) Officer White
testified that, as they were attempting to move Tabitha into
the car, he heard the siren of an ambulance coming and “it
was very clear [to him] that [they] were not going to get
[Tabitha] into the back of the car and [so he] recommended

6
that [they] wait for the ambulance to arrive” because he could
see it coming down Fifth Street. (App. at 168-69.) Officer
White further explained that, “[a]s the ambulance was pulling
up, the two females were screaming at [him and Officer
Blaszczyk] that [if they did not] want to f***ing help, to get
the f*** away from [Tabitha].” (App. at 169.) Officer White
claims he stepped away from them and approached the
ambulance as it arrived. Both officers assert that they did not
prevent anyone from taking Tabitha to the hospital.

Acknowledging that she could not “be precise on the
minutes,” Vargas estimated that the police officers were on
the scene for approximately 6 to 8 minutes before the
ambulance arrived. (App. at 89.) Franklin – one of Vargas’s
witnesses – testified, however, that the officers were on the
scene for “[m]aybe a minute, two minutes” before the
ambulance arrived. (App. at 132.) Further, the
contemporaneous police dispatch records indicate that, from
the time the officers noted their arrival at the scene, see supra
note 4, to the time the ambulance arrived, was just over one
minute.5 (Compare App. at 158 (officers arrived at

5
As described by Vargas’s witnesses, the ambulance
arrived “almost simultaneously” with Emergency Medical
Technicians (“EMTs”) who came in a fire truck. The EMTs
later recalled that they saw a large crowd of people at the
scene who were “[s]creaming, hollering, fighting … amongst
each other” and also that Tabitha was “half-in” the car and
was unresponsive with no vital signs. (App. at 203-04.)
They pulled Tabitha out of the car and onto the sidewalk and
provided basic life support and CPR to her until the
paramedics arrived. The EMTs do not figure further in the
unfolding of events nor in the legal controversies at issue.

7
12:13:56), with App. at 277 (ambulance arrived at 12:15).)
After their arrival, paramedics assisted Tabitha onto a
stretcher, loaded her into the ambulance and provided CPR to
her on the way to Temple University Hospital.6 She arrived
at the hospital at 12:28 a.m. and 31 seconds, approximately
twenty minutes after Vargas’s first call to 911. She had
suffered a severe anoxic brain injury by the time of her
arrival, was pronounced brain dead, taken off of life support,
and died two weeks later on August 26, 2009.

B. Procedural History

Vargas initially filed a complaint on April 1, 2011, in
the Philadelphia Court of Common Pleas, asserting claims
against the City and officers of the Philadelphia Police
Department listed as John Does 1-10. The City timely

6
There are two different types of ambulances that
respond to 911 calls: those with Advanced Life Saving
Service (“ALS”) crews and those with Basic Life Saving
Service (“BLS”) crews. ALS crews include paramedics who
can intubate patients and perform other advanced medical
treatments, while BLS crews can only provide basic life
support. Vargas’s 911 call was initially coded for the
dispatch of an ALS crew but, at the time she called, all ALS
crews were responding to other calls and a BLS crew was
dispatched instead. The paramedics that arrived were thus
only able to connect Tabitha to an automated external
defibrillator and keep her airway open with a small piece of
plastic. Vargas does not contend that the unavailability of an
ALS crew gives rise to any cause of action against the City
Defendants.

8
removed the case to federal court. Vargas then filed an
amended complaint on August 18, 2011, naming Officers
Blaszczyk and White as additional defendants and asserting
in Count I that the officers violated her Fourteenth
Amendment rights to be free from unlawful seizure and
physical restraint and her right to seek medical care on
Tabitha’s behalf, in violation of 42 U.S.C. § 1983. She also
claims, in Count II, that the officers violated Tabitha’s right
to be free from unlawful seizure, physical restraint, and cruel
and unusual punishment and that they interfered with her
“well-being, life and personal security” and substantive due
process rights, in violation of 42 U.S.C. § 1983. The
amended complaint also contains, in Count III, a claim
against the City alleging a failure to properly train the police,
and, in Count IV, state-law false imprisonment claims on her
own behalf and for Tabitha.

After the close of discovery, the City moved for
summary judgment, arguing that Vargas could not
demonstrate a constitutional violation and, in the alternative,
that the officers’ conduct was shielded by qualified immunity.
Vargas responded by pointing to the report submitted by her
expert witness, Dr. Christopher Moen, an emergency room
physician, who said that, had Vargas been able to take
Tabitha to the hospital in Diaz’s car without interruption from
the police, Tabitha would have arrived at the hospital 6 to 8
minutes earlier than she did in the ambulance.7 According to

7
The 6 to 8 minute delay that Dr. Moen identified was
based on police dispatch and hospital records, not on
Vargas’s recollection of the timing of events. Dr. Moen
determined that Tabitha was placed in Diaz’s car at 12:13
a.m. and that the time required to drive to the hospital from

9
Dr. Moen, that 6 to 8 minute delay “prevented [Tabitha] from
receiving life-saving medical care” and “caused her to suffer
a significant anoxic brain injury which led to designation of
brain death.” (App. at 377-79.) The District Court granted
summary judgment against Vargas on all of her claims,
including granting judgment sua sponte on the false
imprisonment claims. Vargas then timely filed this appeal.

Vargas’s home was 3 minutes and 42 seconds. Thus, Dr.
Moen concluded that, had Vargas been able to transport
Tabitha to the hospital as intended, Tabitha would have
arrived no later than 12:17 a.m. Dr. Moen noted that the
Emergency Medical Services report indicates that the
ambulance arrived at the hospital at 12:23 a.m., while the
hospital records indicate that that ambulance arrived at 12:25
a.m. Thus, Dr. Moen concluded that the delay in Tabitha’s
treatment was approximately 6 to 8 minutes.

10
II. DISCUSSION8

A. Unreasonable Seizure

1. Seizure of Vargas and Tabitha

Vargas argues that the District Court erred in finding
that neither she nor her daughter was seized within the
meaning of the Fourth Amendment. A Fourth Amendment
seizure occurs when the government terminates the freedom
of an individual through means intentionally applied. Brower
v. Cnty. of lnyo, 489 U.S. 593, 596-97 (1989). In other
words, “a person is ‘seized’ only when, by means of physical
force or a show of authority, his freedom of movement is
restrained.” United States v. Mendenhall, 446 U.S. 544, 553
(1980). The test for the existence of a “show of authority” is
an objective one and, as the Supreme Court stated in
California v. Hodari, considers “not whether the citizen
perceived that he was being ordered to restrict his movement,
but whether the officer’s words and actions would have
conveyed that to a reasonable person.” 499 U.S. 621, 628
(1991). A seizure does not occur, however, when the
individual does not yield or submit to the officer’s show of

8
The District Court had jurisdiction under 28 U.S.C.
§§ 1331, 1367, and 1441. We have jurisdiction pursuant to
28 U.S.C. § 1291. We exercise plenary review over the
District Court’s summary judgment rulings. Lupyan v.
Corinthian Colls. Inc., 761 F.3d 314, 317 (3d Cir. 2014). A
party is entitled to summary judgment when “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).

11
authority. Id. at 626; see also United States v. Smith, 575
F.3d 308, 313 (3d Cir. 2009). The kinds of demonstration of
authority that may constitute a seizure include “the
threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person
of the citizen, or the use of language or tone of voice
indicating that compliance with the officer’s request might be
compelled.” United States v. Crandell, 554 F.3d 79, 85 (3d
Cir. 2009) (internal quotation marks omitted) (quoting
Mendenhall, 446 U.S. at 554).

Vargas argues that both she and Tabitha were seized
when the officers used their police cruiser to block Diaz’s car
from leaving for the hospital, when the officers told Diaz to
turn off the engine and instructed the occupants to get out of
the car, and then when the officers prevented them from
getting back in the car and leaving for the hospital after it was
clear that a medical emergency was taking place.9 Vargas

9
As to seizure by physical force, Vargas did not argue
below that she was seized when the police officers used their
patrol car to block Diaz’s vehicle from leaving for the
hospital. Instead, she argued that she was seized when the
officers refused to allow her to approach her daughter. She
makes passing references to that argument here, but, as the
District Court concluded, it fails because the officers did not
employ any physical force: they did not physically touch or
restrain her and instead simply told her to “move back” away
from her daughter and to “calm down.” (App. at 87.) See
Hodari, 499 U.S. at 625 (“[The alleged seizure] does not
involve the application of any physical force; Hodari was
untouched by Officer Pertoso at the time he discarded the
cocaine.”). Although the officers’ conduct could have been

12
contends that the officers’ conduct constituted a show of
authority to which she submitted, and she contrasts her and
Tabitha’s behavior with that of the defendant in Hodari, who
fled from police and was thus not seized because of his lack
of submission to the officers’ authority. Hodari, 499 U.S. at
626. Vargas emphasizes that she and Tabitha did not flee.
Indeed, she says, despite desperately pleading with the
officers to allow her to take her daughter to the hospital, she
obeyed when they told her to get out of the vehicle and move
away from Tabitha.

Although the parties devote significant effort to
addressing the difficult question of whether a seizure
occurred in this case, we need not resolve that issue because,
as explained below, even if there were a seizure, the
undisputed facts show that any such seizure was reasonable
and therefore not a constitutional violation.

2. Reasonableness of seizures

The Fourth Amendment does not protect against all
seizures; it only protects against those that are unreasonable.

sufficient under the “show of authority” prong to constitute a
seizure, as discussed below, see infra pp. 11-17, any such
seizure was reasonable.
Vargas also contends that the District Court erred in
concluding that Tabitha was not seized because, in her
unconscious state, she could not submit to the officers’ show
of authority. Again, because any seizure that may have
occurred was reasonable, we do not need to resolve whether
there was a seizure.

13
United States v. Sharpe, 470 U.S. 675, 682 (1985).
Reasonableness is determined by balancing “the need of law
enforcement officials against the burden on the affected
citizens and considering the relation of the policeman’s
actions to his reason for stopping the [individual].” Baker v.
Monroe Twp., 50 F.3d 1186, 1192 (3d Cir. 1995). While
declining to concede that any seizure occurred, the City
Defendants argue that, to the extent there was a seizure, it was
reasonable under the community caretaking exception to the
Fourth Amendment.

In Cady v. Dombrowski, the Supreme Court introduced
the “community caretaking doctrine” when it held that a
police search of a particular police officer’s private vehicle
for the officer’s missing service revolver was not a Fourth
Amendment violation because the search was undertaken not
for a law enforcement purpose but out of “concern for the
safety of the general public who might be endangered if an
intruder removed a revolver” from the vehicle.10 413 U.S.

10
We have previously given a synopsis of the relevant
facts in Cady, as follows:
In Cady, a Chicago police officer named
Dombrowski was visiting in Wisconsin and
reported to the local police that he had been in
an automobile accident. The police picked him
up and returned to the scene of the accident.
Dombrowski had been drinking, appeared
intoxicated to the officers, and offered
conflicting versions of the accident. He
informed the local officers that he was a
Chicago policeman. The local officers believed
that members of the Chicago police force were

14
433, 447 (1973). The Court noted that law enforcement
officers often exercise “community caretaking functions,
totally divorced from the detection, investigation, or
acquisition of evidence relating to the violation of a criminal
statute.” Id. at 441. That community caretaking doctrine, as
described in Cady, is an exception to the warrant requirement
of the Fourth Amendment and allows police with a non-law
enforcement purpose to seize or search a person or property

required to carry a service revolver at all times,
so, when no gun was found on Dombrowski’s
person, an officer checked the front seat and the
glove compartment of the wrecked car, but to
no avail. The effort to find the weapon was
motivated by the obligation of the police “to
protect the public from the possibility that a
revolver would fall into untrained or perhaps
malicious hands.” The police had the vehicle
towed to a privately owned garage, where it was
left parked outside. After taking Dombrowski
to a local hospital for treatment of injuries he
sustained in the accident, one of the Wisconsin
officers returned to Dombrowski’s car to again
try to recover the service revolver … pursuant
to standard departmental procedure “to protect
the public from a weapon’s possibly falling into
improper hands.” Upon opening the trunk, the
officer discovered various items that linked
Dombrowski to a murder.
Ray v. Twp. of Warren, 626 F.3d 170, 174-75 (3d Cir. 2010)
(citations omitted).

15
“in order to ensure the safety of the public and/or the
individual, regardless of any suspected criminal activity.”
United States v. King, 990 F.2d 1552, 1560 (10th Cir. 1993).

Many courts, including our own, have considered the
limits of the community caretaking doctrine. In Ray v.
Township of Warren, Ray’s estranged wife had gone to Ray’s
house to pick up their daughter for court-ordered visitation.
626 F.3d 170, 171-72 (3d Cir. 2010). Upon seeing someone
moving inside the home, but receiving no response to her
ringing of the doorbell or knocking on the door, the wife
called the police. Id. Once the police arrived, she described
the situation to them and expressed concern for her daughter’s
well-being. Id. The officers, some of whom were aware of
the acrimonious divorce proceedings and child-custody
dispute between the couple, also knocked on the door and
called the telephone number for the residence, but received no
response. Id. Thereafter, and without a valid warrant,11 the
officers entered the house to check on the child’s well-being.
Id. To justify their actions, the officers asserted the

11
Prior to entering, the responding officers contacted a
municipal court judge for guidance as to whether the officers
could enter the home and look for the child without a warrant,
and they received approval. Although the specifics of that
conversation were unclear, the officers testified that they only
sought advice regarding entering the home out of concern for
the daughter’s well-being; they did not regard the call as a
request for a warrant. The magistrate judge however,
understood the officers to be asking for an arrest warrant and
issued such a warrant, though it was later voided. Ray, 626
F.3d at 172.

16
community caretaking exception to the Fourth Amendment’s
warrant requirement.

We ultimately held that the officers’ actions were
protected by qualified immunity, id. at 179, but we declined
to extend the community caretaking exception to cover the
officers’ conduct. Instead, we indicated that Cady’s outcome
depended on the distinction in Fourth Amendment
jurisprudence between automobiles and homes, and we
concluded that the community caretaking doctrine “cannot be
used to justify warrantless searches of a home.” Id. at 177.
We expressly noted in that case, however, that we were not
deciding “[w]hether that [doctrine] can ever apply outside the
context of an automobile search.” Id.

Some of our sister courts of appeals have, by contrast,
decided that question and have upheld under the community
caretaking doctrine not only evidentiary searches and seizures
outside the home, but also the effective seizure of persons.
See, e.g., Lockhard-Bembery v. Sauro, 498 F.3d 69, 75-76
(1st Cir. 2007) (applying community caretaking exception
when officer ordered motorist to push her disabled car out of
the roadway for the safety of the general public); Samuelson
v. City of New Ulm, 455 F.3d 871, 877 (8th Cir. 2006)
(applying community caretaking exception when officers
transported to a psychiatric hospital an unwilling individual
who appeared to be hallucinating); United States v. Rideau,
949 F.2d 718, 720 (5th Cir. 1991) (applying community
caretaking exception when officers stopped defendant for his
own safety and the safety of others after observing him
standing in the middle of the road at night, dressed in dark
clothes, and apparently intoxicated), vacated on other
grounds, 969 F.2d 1572 (5th Cir. 1992) (en banc).

17
 We agree that the community caretaking doctrine can
apply in situations when, as is arguably the case here, a
person outside of a home has been seized for a non-
investigatory purpose and to protect that individual or the
community at large.12 The undisputed facts show that the
actions of Officers Blaszczyk and White were reasonable.
They were responding to a volatile situation which they did
not initially know involved a medical emergency, and any
brief seizure that may have occurred was a result of the
officers’ concern for the safety of everyone involved. The
officers were sent because of a dispatcher’s report of a 911
call from a “person screaming” (App. at 152-54), which was
an apt description. According to Vargas, when the officers
pulled up next to Diaz’s car, the occupants of the car began
“screaming” at them (App. at 85), but the screaming did not
immediately reveal the nature of the emergency. Once the
officers realized that Tabitha needed medical attention, it was
reasonable for them to direct Vargas to wait because an
ambulance was within earshot and its arrival was apparently
imminent.

12
The City Defendants have not invoked the
“emergency aid doctrine,” which the Supreme Court
describes as a subset of the exigent circumstances exception
to the warrant requirement. Brigham City, Utah v. Stuart,
547 U.S. 398, 403 (2006) (“One exigency obviating the
requirement of a warrant is the need to assist persons who are
seriously injured or threatened with such injury.”). We thus
do not have occasion to evaluate that doctrine’s applicability
here.

18
 Officer White testified that they intended to take
Tabitha to the hospital, but then heard and saw an ambulance
approaching “within a minute or two minutes.” (App. at
175.) He further testified that he waited for the ambulance
because paramedics are “better trained” for the type of
situation the officers faced. (App. at 175.) Sergeant Starrs of
the Philadelphia Police Department, who works for the
Department’s Research and Planning Unit and is responsible
for writing policies and procedures used in the training of
police officers, explained that officers are trained to wait for
paramedics in certain situations because “medics … have the
equipment and they have the personnel to ride in the back”
with the patient, whereas when officers transport a patient,
they “are in the front of the car driving” and “there is no
nobody to attend to the patient in the back.” (App. at 186.) It
is undisputed that Tabitha did in fact receive medical care on
the scene and on board the ambulance on the way to the
hospital.

Finally, it is important to note that the encounter
outside the Vargas home transpired within a few minutes.
Although Vargas estimated that the police officers were on
the scene for 6 to 8 minutes before the ambulance, Franklin –
one of her witnesses – testified that the time between the
officers’ and the ambulance’s arrival was “maybe a minute,
two minutes.” (App. at 132-33.) And the police dispatch
records tend to confirm Franklin’s testimony, showing that
the officers were on the scene just over a minute before the
ambulance arrived. (Compare App. at 158 (officers arrived at
12:13:56), with App. at 277 (ambulance arrived at 12:15).)
Even accepting the longer time-span as the historical fact,
though, the entire episode happened quickly. In such

19
circumstances, even if Vargas and Tabitha could be
considered seized, the seizures were reasonable.13

B. Due Process Claim

Vargas also raises a Fourteenth Amendment
substantive due process claim on her own behalf and on
behalf of Tabitha. For herself, Vargas argues that the officers
violated her Fourteenth Amendment right to “make decisions
concerning the care, custody, and control” of her daughter.
C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 182 (3d Cir.
2005) (internal quotation marks omitted). Her claim on
behalf of Tabitha has three components: a “straight”
Fourteenth Amendment claim based upon the officers’ failure
to allow Vargas to transport her to the hospital in violation of
Tabitha’s right to life; a special relationship claim that the

13
The officers’ conduct here would also be shielded by
qualified immunity. “Qualified immunity shields government
officials from civil damages liability unless the official
violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.” Reichle v.
Howards, 132 S. Ct. 2088, 2093 (2012). The case law does
not indicate any analogous factual circumstances that would
have put the officers on notice that they cannot briefly detain
individuals in response to an emergency call and to await
trained medical transport without violating the Fourth
Amendment. We had not, before today, expressly held that
the community caretaking doctrine could justify the seizure of
a person outside of a home, which suggests that, to the extent
there was doubt, the law in this area was not “clearly
established.”

20
officers had a duty to render affirmative aid; and a state-
created danger claim.

To sustain a substantive due process claim, a plaintiff
must show that the particular interest in question is protected
by the Fourteenth Amendment and that the government’s
deprivation of that interest “shocks the conscience.” Gottlieb
ex rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168,
172 (3d Cir. 2001). The shocks-the-conscience test applies
regardless of the theory upon which the substantive due
process claim is premised. See Estate of Lagano v. Bergen
Cnty. Prosecutor’s Office, 769 F.3d 850, 858 (3d Cir. 2014)
(noting that, to establish a claim under the state-created
danger theory, a plaintiff must prove that “a state actor acted
with a degree of culpability that shocks the conscience”);
Nicini v. Morra, 212 F.3d 798, 809-12 (3d Cir. 2000)
(applying the shocks-the-conscience test in a “special
relationship” case); J.R. v. Gloria, 593 F.3d 73, 80 (1st Cir.
2010) (stating that, even assuming a “special relationship”
existed, the plaintiffs “did not make out a substantive due
process claim” because they did not “allege any behavior by
defendants that would meet the legal definition of conscience-
shocking conduct”); Johnson ex rel. Estate of Cano v.
Holmes, 455 F.3d 1133, 1141-42 (10th Cir. 2006) (stating that
the shocks-the-conscience standard applies to both “special
relationship” cases and “state created danger cases” (citations
omitted)).

“The exact degree of wrongfulness necessary to reach
the ‘conscience-shocking’ level depends upon the
circumstances of a particular case.” Miller v. City of Phila.,
174 F.3d 368, 375 (3d Cir. 1999). A plaintiff faces the
highest bar when the state actor accused of wrong-doing was

21
faced with a “‘hyperpressurized environment’” requiring a
snap judgment. Sanford v. Stiles, 456 F.3d 298, 308-09 (3d
Cir. 2006) (quoting Estate of Smith v. Marasco, 318 F.3d 497,
508 (3d Cir. 2003)). In such cases, we permit recovery only
if the state actor had an actual intent to cause harm. Id. By
contrast, “where deliberation is possible and officials have the
time to make ‘unhurried judgments,’ deliberate indifference is
sufficient.” Id. at 309 (quoting Cnty. of Sacramento v. Lewis,
523 U.S. 833, 853 (1998)). Importing aspects of Eighth
Amendment jurisprudence, we have defined “deliberate
indifference” as requiring “conscious[ ] disregard [of] ‘a
substantial risk of serious harm.’” Ziccardi v. City of Phila.,
288 F.3d 57, 66 (3d Cir. 2002) (quoting Farmer v. Brennan,
511 U.S. 825, 836 (1994)). In any event, “[m]ere negligence
is not enough to shock the conscience.” Sanford, 456 F.3d at
311.

Here, the officers certainly did face a hyperpressurized
environment. They came in response to a 911 call noted
simply as “person screaming” and they in fact encountered a
group of screaming, frantic adults and an unconscious child.
No one disputes that the police arrived at a tense and chaotic
scene, that they endeavored to determine what was
happening, and that, when it was plain that there was a
medical emergency and an ambulance was about to arrive,
they had everyone wait for the paramedics. It is a stretch to
say that these facts rise even to the level of negligence, let
alone to deliberate indifference or an intent to harm. While
the officers’ behavior and language, as described by Vargas,
may have been less than polite or compassionate, it was not
actionable.

22
 The cases Vargas relies upon are inapposite. In Rivas
v. City of Passaic, paramedics misrepresented to the police
that a patient had assaulted one of them, leading the police to
restrain the patient and causing the patient to asphyxiate. 365
F.3d 181, 185-86, 189 (3d Cir. 2004). In Kneipp v. Tedder,
police officers abandoned an intoxicated woman in freezing
weather after separating her from her sober husband – her
“private source of protection.” 95 F.3d 1199, 1210 (3d Cir.
1996). Here, by contrast, the officers simply and sensibly
decided to wait for the incoming ambulance that was seconds
away. Unlike the government actors in the cases that Vargas
cites, the police here assisted in a form of rescue – facilitating
an ambulance pick-up – rather than arresting or abandoning
the person in need of aid. Thus, the District Court did not err
in granting summary judgment against Vargas on all of her
substantive due process claims.

C. “Failure to Train” Claim

Relying on Monell v. New York City Department of
Social Services, 436 U.S. 658 (1978), Vargas next contends
that the City of Philadelphia is liable for failing to preserve
her constitutional rights, and that the District Court erred in
granting summary judgment against her on that claim.
Specifically, she argues that the City’s police department
failed to adequately train its police officers and failed to adopt
appropriate policies to prevent Fourth and Fourteenth
Amendment violations.

In Monell, the Supreme Court held that a municipality
can be found liable under § 1983 only when the municipality
itself causes the constitutional violation at issue. City of
Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). In order

23
to impose liability on a local governmental entity for failing
to preserve constitutional rights, a plaintiff bringing a § 1983
claim must establish that: (1) she possessed a constitutional
right of which she was deprived; (2) the municipality had a
policy; (3) the policy “amount[ed] to deliberate indifference”
to the plaintiff’s constitutional right; and (4) the policy was
the “moving force behind the constitutional violation.” Id. at
389-91 (internal quotation marks omitted). “‘[D]eliberate
indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious
consequence of his action.” Bd. of Cnty. Comm’rs of Bryan
Cnty., Okl. v. Brown, 520 U.S. 397, 410 (1997).

In this case, Vargas’s claim fails at the first step.
Because the officers did not violate any of her constitutional
rights, see supra pp. 9-17 (no Fourth Amendment violation),
17-20 (no Fourteenth Amendment violation), there was no
violation for which the City of Philadelphia could be held
responsible. Mulholland v. Gov’t Cnty. of Berks, Pa., 706
F.3d 227, 238 n.15 (3d Cir. 2013) (“It is well-settled that, if
there is no violation in the first place, there can be no
derivative municipal claim.”). The District Court thus did not
err in granting summary judgment for the City on the Monell
claim.

D. False Imprisonment Claim

Finally, Vargas argues that the District Court erred in
sua sponte granting summary judgment on the state-law false
imprisonment claims that she raised on her own behalf and
for Tabitha. She does not appear to challenge the District
Court’s finding that neither she nor Tabitha were falsely
imprisoned and instead argues only that the District Court

24
should have provided her with notice and an opportunity to
brief the issue before granting summary judgment against her
on the claims.

Assuming that Vargas has not waived her argument on
the underlying merits of the false imprisonment claims,14 she
cannot succeed on those claims because the officers were
entitled to immunity under Pennsylvania’s Political
Subdivision Tort Claims Act (“PSTCA”), 42 Pa.
C.S. §§ 8541-8564. The PSTCA provides immunity to
municipalities and its employees for official actions unless
the employee’s conduct goes beyond negligence and
constitutes “a crime, actual fraud, actual malice, or willful
misconduct.” Id. § 8550. Willful misconduct has been
defined by the Pennsylvania Supreme Court as “conduct
whereby the actor desired to bring about the result that
followed or at least was aware that it was substantially certain
to follow, so that such desire can be implied.” Renk v. City of
Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) (quoting King v.
Breach, 540 A.2d 976, 981 (Pa. 1988)) (internal quotation
marks omitted). As the record makes clear, the officers’

14
“[U]nder Federal Rule of Appellate Procedure
28(a)(3) and (5) and Third Circuit Local Appellate Rule
28.1(a), appellants are required to set forth the issues raised
on appeal and to present an argument in support of those
issues in their opening brief. It is well settled that if an
appellant fails to comply with these requirements on a
particular issue, the appellant normally has abandoned and
waived that issue on appeal and it need not be addressed by
the court of appeals.” Kost v. Kozakiewicz, 1 F.3d 176, 182
(3d Cir. 1993) (citations omitted).

25
actions here do not rise to the level of willful misconduct and
thus Vargas cannot prevail on her false imprisonment claims.
It is therefore immaterial whether the District Court erred in
sua sponte granting summary judgment without first giving
Vargas notice, as any such error would be harmless.

III. CONCLUSION

For the forgoing reasons, we will affirm the ruling of
the District Court.

26