dissenting.
Two points are critical to my approach to this case. First, the decedent committed suicide — he was not injured or killed by the police. The sin charged against the City is not commission, but omission. Second, the evidence fails to establish deliberate indifference on the part of the City of Philadelphia.
I.
The record does not demonstrate indifference — to the contrary, it clearly shows that the City, through directives to its police officers, had adopted a policy to limit *1093or eliminate suicides that occurred in its jails. That the policy had not been completely successful, whether through non-actionable negligence or a paucity of resources, does not make out a case of deliberate indifference.
Custody of intoxicated persons is not a matter of isolated incidents in the City of Philadelphia. In the five year statistical period that the plaintiff chose to establish for her case, there were 97,141 arrests for intoxication. During that same period, fifteen of those persons committed suicide while in custody, a percentage rate of .00015. That is not to minimize the seriousness of loss of life, but to point out that the imposition of a deliberate indifference test as to the municipality is not unreasonable in the circumstances here.
Two exhibits in evidence show that Philadelphia did have an affirmative policy to protect prisoners. A bulletin dated March 11, 1982 entitled “Assist Officer” issued by the Philadelphia Police Department Training Bureau addressed the matter of “prisoner safety” and stated, “Police personnel responsible for the custodial care of defendants will take all necessary precautions to ensure that prisoners do not inflict harm to themselves or others.”
Under “Removal of Articles” the bulletin requires both the arresting officer and the turnkey to search the prisoner and “remove all articles with which the prisoner may injure himself or others while in custo-dy_ Particular attention should be given to the following:
a. Ties
b. Belts
c. Shoe Laces_”
The bulletin went on to say:
“There have been incidents when prisoners have attempted to use pants and shirts to hang themselves. Officers will not limit their observations to the above. Suspects in a cell should be considered capable of causing harm to themselves or others despite the above precautions. Therefore, it is imperative for all officers involved to be familiar and comply with Directive 21 D, Cell Block Inspections.
The safety of officers and prisoners is paramount.”
“Appendix C” to Police Department Directive 82 is dated November 18, 1983. It is undisputed that Directives 82 and Appendix C were in effect in 1985.
“Appendix C” lists as “Policy” the admonition contained in the 1982 training bulletin that those responsible for custodial care are to take precautions to ensure that prisoners do not inflict injury on themselves or others. Also repeated are the instruction to remove “any property that may be used ... to inflict personal injury on the prisoner or others ” [emphasis in original] and the reference to such items as “belts, ties, [and] shoelaces.” In addition, “Appendix C” states, “Whenever possible, a minimum of two (2) prisoners are to be placed in a cell/detention room.”
Moreover, the Directive contained instructions for inspection of cell blocks:
“1. The time of each inspection is to be recorded on the Prisoner Log (75-297) and will be conducted as follows:
a. Lieutenant or other ranking supervisor will inspect the cell block at least twice during the tour of duty.
b. Operations Supervisor will inspect the cell block every hour.
c. Turnkeys and/or trainees will inspect the cell blocks at 15-minute intervals as scheduled by the Operations Supervisor.”
These documents conclusively refute any suggestion that the police department had not adopted precautions to safeguard its prisoners from self-inflicted harm. To the contrary, the City had taken deliberate steps to reduce the risk of detainee suicides.
A review of the suicide record is revealing. In 1980 four people arrested for intoxication committed suicide in city jails; in 1981, one; 1982, two; 1983, 3; 1984, one; 1985, four. There were significant drops in the years 1981 and 1984 and an increase in 1985. The record contains no explanation for these variations, nor does the evidence reveal whether the deaths were occasioned by negligence on the part of jail personnel, or whether the Directives were violated. The statistics, therefore, do not demon*1094strate that the policy set out in the 1982 Directives was ineffective or that additional training was required.
As his jailer, the City had an obligation not to be indifferent to the decedent’s serious medical needs, but the first question is whether the decedent had demonstrated any serious medical need. The record is unequivocal that the police had no knowledge that the decedent had any history of mental illness or instability. Indeed, his family had never noticed any symptoms and the record is completely silent on the decedent’s mental health. At the time he came into the custody of the Sixth District Jail, he was intoxicated as a result of the voluntary, excessive consumption of alcohol. His conduct, according to Officer Pa-nati, the turnkey, was not markedly different than other intoxicated persons who had been committed previously.
This case is quite unlike those where individual jailers had actual knowledge of, or had reason to suspect suicidal tendencies on the part of specific detainees. In those cases, the conduct of a defendant turnkey has been measured under the deliberate indifference standard for purposes of section 1983. It is important here to remember that in determining the liability of the City, the question is not whether Officer Panati was deliberately indifferent (the jury found he was not), but whether the Philadelphia policymakers had adopted or followed a policy of deliberate indifference.1
Plaintiff does not argue that the City’s policy failed to protect those prisoners it knew were suicidal, rather she urges on this Court a far broader and unprecedented basis of liability. She argues that based solely on the statistics of prior prisoner suicides, the City should have known not only that the decedent was suicidal but that its policies were inadequate.
Essentially, her position is that the City was deliberately indifferent because it did not supplement its existing policy in the face of a suicide frequency for intoxicated detainees of .00015. That is at best a tenuous argument that I am not prepared to accept.
This Court in Colburn v. Upper Darby Township, (“Colburn II”), 946 F.2d 1017, 1024 (3d Cir.1991), observed that “several of our sister circuits have recently pointed out the requirement of ‘reckless or deliberate indifference’ implies that there must be ‘a strong likelihood, rather than a mere possibility, that self-inflicted harm will occur.’ ” See also Torraco v. Maloney, 923 F.2d 231, 236 (1st Cir.1991). The suicide frequency for intoxicated detainees of .00015 fails to establish that as a “class” these detainees presented such a “strong likelihood” of committing suicide that the City was indifferent in not taking additional precautions. Cf. Colburn II, at 1026 (the Court was unwilling on the record in that case to equate intoxication with a “particular vulnerability to suicide”); Belcher v. Oliver, 898 F.2d 32, 35 (4th Cir.1990).
The majority’s position here is inconsistent with Colburn II The attempt to distinguish that case on minor points is unpersuasive because it fails to address the basic thrust of that opinion.
Moreover, the fact remains that if the police had followed the department policy *1095and placed the decedent in a cell with someone else, whether at the Sixth District Jail or some other location, the suicide likely would not have occurred.
The plaintiffs experts opined that the City could have taken a variety of measures to provide for potentially suicidal intoxicated prisoners. The suggested measures included plexiglass screens in place of some cell bars, audio or video monitors,2 relocation of the turnkeys desk to an area within the cell block, or calling in police personnel from street duty to assist in constant observation when intoxicated prisoners could not be put in a cell with other persons.
Opinions of this Court and other Courts of Appeals have held that expert evidence of this nature does not support a claim of deliberate indifference by a municipality. In Williams v. Borough of West Chester, Pa., 891 F.2d 458, 467 & n. 14 (3d Cir.1989), the Court concluded that allegations of the Borough’s failure to require that detainees’ belts be removed or to install equipment for visual surveillance of the cell block area, failure to appropriate funds for handling detainees with mental health problems, and failure to train officers in handling detainees with mental health problems, amounted, at most, to negligence and not deliberate indifference.
In contrast, Colburn v. Upper Darby Township (“Colburn I”), 838 F.2d 663, 669 (3d Cir.1988), presented allegations that the police knew of the detainee’s suicidal tendencies and failed previous attempts, but did not take proper steps to protect her against herself.
Other Courts of Appeals have reached the same result as we did in Williams. In Molton v. City of Cleveland, 839 F.2d 240, 247 (6th Cir.1988), cert. denied, 489 U.S. 1068, 109 S.Ct. 1345, 103 L.Ed.2d 814 (1989), the City had promulgated directives requiring removal of detainees’ belts and extra surveillance in cases where suicide attempts could be anticipated. Although the City had a history of detainee suicides, the Court decided that the directives showed that the policymakers had taken steps to prevent such incidents. Even if the City had undertaken its initiative negligently, that fact did not establish deliberate indifference, nor did the failure to build a suicide-proof cell.
Similarly, in Popham v. City of Talladega, 908 F.2d 1561, 1564 (11th Cir.1990), the Court held that the standard procedures followed by jail officials, “removal of shoelaces, belts, socks, and pocket contents demonstrate an effort to assure [the prisoner’s] safety and a lack of deliberate indifference.” In that case, the intoxicated prisoner hung himself in a corner of the cell not viewed by a closed circuit television camera.
Rellergert v. Cape Girardeau County, Mo., 924 F.2d 794, 797 (8th Cir.1991), was yet another jail suicide case. Rejecting a contention that the evidence established deliberate indifference, the Court remarked that “[ijndifference is apathy or unconcern.” That the prisoner there was able to evade the cautious eyes of the jailer for a brief period of time, “does not change the value and import of the policy to the contrary.” Although the cautionary measures prescribed failed and the actions of the jailers might have been negligent, “no view of the evidence can support the conclusion that the policy was deliberately indifferent.” Id.; see also Bell v. Stigers, 937 F.2d 1340, 1343 (8th Cir.1991) (“The deliberate standard is met only if there were a ‘strong likelihood, rather than a mere possibility,’ that self-infliction of harm would result.”).
In short, the undisputed evidence is that the City of Philadelphia did take positive steps to prevent prisoner suicides. It had a policy expressed in its Directives to the *1096police to protect inmates from self destructive acts. Whether the policy could have been more effective or whether the City should have devoted more resources to the problem may have some bearing on whether the municipality acted negligently — it does not make out a case of deliberate indifference. A city cannot be both deliberately cautious and deliberately indifferent. Rellergert, 924 F.2d at 797 (defendant Sheriff sued as a policymaker).
The testimony of the experts (whose recommendations in some respects agreed with the City’s Directives), aided by the wisdom endowed by hindsight, was not enough to establish deliberate indifference. Nor did the evidence suffice to allow the jury to override the City’s decision to allocate its limited resources among this problem and other perhaps more pressing needs.
In the face of the positive City policy, little need be said to address the alleged failure to train, or more accurately to give better training. Officer Panati had received some training concededly years before, but in recent years had the benefit of the City’s bulletin and directives published in 1982.
That the decedent here exhibited some agitation while confined to the cell does not demonstrate either that his conduct was unusual in intoxicated individuals or a need for additional training. Likewise, the expert’s testimony that the symptoms exhibited by decedent were consistent with a profile of suicidal detainees is of little value in determining the City’s liability. No suicides had occurred at that station so far as the record reveals and neither the arresting officers nor Panati found the detainee’s actions to be different than others they had in their custody previously.
Moreover, the city was not required to train officers to medically screen prisoners to detect suicidal tendencies. “The latter requires the skills of an experienced medical professional with psychiatric training, an ability beyond that required of the average police officer by the due process clause.” Burns v. City of Galveston, Tex., 905 F.2d 100, 104 (5th Cir.1990); Edwards v. Gilbert, 867 F.2d 1271, 1276 (11th Cir. 1989) (“The law does not require jail officials to keep up with the latest literature in the social sciences.”); cf. Beddingfield v. City of Pulaski, Tenn., 861 F.2d 968, 972 (6th Cir.1988).
Concluding that there was insufficient evidence to establish liability on the part of the City under section 1983, I would enter judgment in its favor on that count.
II.
I agree with Judge Becker that the question of the City’s immunity from state tort claims is properly before us. I differ, however, with the result the majority reaches.
The Political Subdivision Tort Claims Act was enacted by the Pennsylvania legislature in reaction to a decision of the state Supreme Court abolishing sovereign immunity as a defense in tort actions. Ayala v. Philadelphia Bd. of Pub. Educ., 453 Pa. 584, 305 A.2d 877 (1973). The Act provides that: “Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.Cons.Stat. Ann. § 8541. “Local agency” is defined as “A government unit other than the Commonwealth government.” 42 Pa.Cons.Stat. Ann. § 8501.
The “exceptions” to the grant of municipal immunity permit tort actions to be brought based on the use of motor vehicles, or on dangerous conditions of traffic lights, street lights, streets, municipal utility systems. Additionally, claims related to personal or real property in possession of the political subdivision may not be brought.
It is undisputed that the City of Philadelphia is a “local agency” and that none of the statutory exceptions to the grant of immunity are applicable. The issue is whether the City of Philadelphia has the power to waive the provisions of the Act by means of a pre-existing municipal ordinance.
It is fundamental that absent a specific constitutional provision a city may not en*1097act a valid ordinance contrary to state legislation. The municipal corporation is but a subdivision of, created by, and subservient to the state.
Philadelphia has been denominated a city of the first class by the legislature and granted certain powers by a Home Rule Charter. Pa.Stat.Ann. tit. 53, §§ 13101-13157. Section 13133 provides that despite the grant of powers conferred, “no city shall exercise powers contrary to, or in limitation or enlargement of, powers granted by acts of the General Assembly which are—
(b) Applicable in every part of the Commonwealth.
(c) Applicable to all the cities of the Commonwealth.”
The Tort Claims Act is applicable throughout the state and extends to all municipalities. It has a broad scope and clearly implements statewide policy. Nevertheless, an ordinance at Chapter 21-700 of the Philadelphia Code, enacted before the Tort Claims Act came into effect, purports to allow the City to waive the defense of governmental immunity for torts committed by police officers.
In Borenstein v. City of Philadelphia, 595 F.Supp. 853 (E.D.Pa.1984), the district court concluded that the City could choose to waive immunity despite the language of the Tort Claims Act. The court reasoned that the decision to give up the immunity defense in a particular class of cases was a matter of “peculiarly local concern” and noted that the state Supreme Court had imposed few restrictions on the legislative authority of Philadelphia. The cases cited by the district court in support of that proposition, School Dist. v. Zoning Bd. of Adjustment, 417 Pa. 277, 207 A.2d 864 (1965); Ebald v. City of Philadelphia, 387 Pa. 407, 128 A.2d 352 (1957); In re Addison, 385 Pa. 48, 122 A.2d 272 (1956), appeal dismissed, 352 U.S. 956, 77 S.Ct. 353, 1 L.Ed.2d 316 (1957), were concerned with zoning and personnel management, topics which may well be classified as matters of purely local interest.
Relying on the reasoning in the Boren-stein case, a divided Commonwealth Court of Pennsylvania in City of Philadelphia v. Middleton, 89 Pa.Commw. 362, 492 A.2d 763 (1985), sustained the ordinance. The dissent pointed out that section 802(c) of the Torts Claims Act as originally enacted provided that “all other acts or parts of acts are repealed to the extent of any inconsistency.” 492 A.2d at 765. In any event, the dissent felt that a local ordinance could not be sustained when it contradicted state law.
I recognize that the decision of the Commonwealth Court of Pennsylvania is entitled to great respect, nevertheless, I am convinced by opinions of the Supreme Court of Pennsylvania that it would decide the question of immunity in a manner contrary to Borenstein and Middleton.
The state Supreme Court upheld the constitutionality of the Tort Claims Act in Carroll v. County of York, 496 Pa. 363, 437 A.2d 394 (1981). There an inmate of a detention center committed suicide. The Court commented that “the conferring of tort immunity upon political subdivisions is within the scope of the Legislature’s authority.” Id. 437 A.2d at 396. Further, the Court said, “Manifestly, it is within the province of the Legislature to determine that certain bars to suit are, in its judgment, needed for the operation of local government.” Id. at 397.
In Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118, 1123 (1987), another detention center case, the Court reversed the Commonwealth Court and held that Philadelphia was immune. “Since Section 3 [the real estate proviso] is an exception to the rule of immunity, we believe that its extent must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability.”
Rigid adherence to the Tort Claims Act is forcefully demonstrated in In re Upset Sale (“Skibo”), 522 Pa. 230, 560 A.2d 1388 (1989), where the court again reversed the Commonwealth Court. In that case, the tax claim unit of North Hampton County first raised the question of immunity on *1098appeal. The state Supreme Court refused to find an effective waiver stating:
“Perhaps here is one reason their immunity cannot be waived; a governmental agency cannot be put at the mercy of negligent or agreed waiver by counsel of a substantive right designed to protect its very existence_ Defense of governmental immunity is an absolute defense, directly analogous to our holding in workmen’s compensation cases and is not waivable, Le Fiar v. Gulf Creek Industrial Park, 511 Pa. 574, 515 A.2d 875 (1986), nor is it subject to any procedural device that could render a governmental agency liable beyond the exceptions granted by the legislature.”
560 A.2d at 1389; see also Gardner v. Consolidated Rail Corp. SEPTA, 524 Pa. 445, 573 A.2d 1016, 1018 n. 4 (1990) (the Court once again repeated its admonition that exceptions to the grant of immunity were to be narrowly construed).
In re: Upset Sale cannot be dismissed as a mere procedural holding. It’s admonition that a governmental agency may not be deprived of immunity through an agreed waiver by counsel is a strong indication that the Court would not countenance a waiver by a council either.
Tort immunity of municipalities is not a matter of purely local concern for Philadelphia as were the cases discussed in Boren-stein. Philadelphia’s precarious financial condition and its pleas for aid from the state legislature make it obvious that state taxpayers, not just Philadelphia taxpayers, are affected by a waiver of immunity.3
The state Supreme Court thus far has been consistent in its application of the immunity conferred by the Tort Claims Act. I am persuaded that were this case to be presented to that Court it would hold that the Philadelphia ordinance was superseded by the Tort Claims Act. Accordingly, judgment should be entered in favor of the City on the state tort claims.4
. I do not accept Judge Becker’s conclusion that because the City has waived its argument that plaintiff failed to establish the element of scien-ter, the facts necessary to prove that element of the plaintiff’s case must be assumed to be established. It is a logical non sequitur to conclude that waiver of a legal theory or argument based on certain facts thereby establishes the existence of those facts to defeat an argument on another theory. Put another way, if a party points to the fact that certain evidence is not in the record, and from that absence argues that theory A applies, he may nevertheless fail on that contention because of failure to raise the legal theory at the appropriate time. The waiver of the right to argue theory A, however, in no way puts into the record evidence to defeat theory B (which was not waived). A void in the record cannot be filled by non-existent evidence.
Therefore, even if it waived the right to argue for judgment n.o.v. on the theory of lack of scienter, for example, the City did not concede the existence of (non-produced) evidence which could be used to defeat its theory that plaintiff failed to produce sufficient evidence to establish the inadequacy of the measures the City implemented. See e.g., n. 29, page 1072.
. One of the publications cited by the expert, Lindsay M. Hayes, And Darkness Closes In ... A National Study of Jail Suicides, 10 Crim.Just. & Behav. 461, 481 (1983), comments: "Isolation, television monitors and intercom systems are more often designed for the convenience of jail personnel, and not for the benefit of the inmate. Indeed, their use may heighten the depersonalizing aspects of confinement — the inmate having to ‘relate’ to a disembodied monitor or loudspeaker.” The article also describes several instances where suicides occurred despite this technology.
.It is interesting that years after the decisions in Borenstein and Middleton, the City finally repealed the waiver ordinance on October 17, 1990. The preamble to the repealer stated that "[s]uch waiver was not intentional, however, since the ordinance predated the Act, and because the City has not re-examined this issue legislatively since the passage of [the Tort Claims Act].” And further, “[t]he continued existence of a City ordinance waiving immunity, enacted at a time when general governmental immunity prevailed, is an anomaly in light of the judicial abolition of governmental immunity and the General Assembly's subsequent creation of governmental immunity with carefully crafted exceptions.”
Although the repealer states that it applies to "all pending civil actions," the City did not advise this Court of the Council's action and, therefore, I assume is not asking that it be applied to this case.
.In cases where the legislature has permitted suit to be brought against municipalities, the amount of damages has been capped at $500,-000. See 42 Pa.Cons.Stat.Ann. § 8553(b); Smith v. City of Philadelphia, 512 Pa. 129, 516 A.2d 306 (1986), appeal dismissed, 479 U.S. 1074, 107 S.Ct. 1265, 94 L.Ed.2d 127 (1981). The repealed city ordinance purports only to prevent the city from pleading governmental immunity as a defense, but says nothing with respect to the amount of damages that might be recovered. Clearly, the legislature intended to limit the exposure of municipalities in cases where it did allow a suit for damages. The city has not raised that point on this appeal.