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Kedra v. Schroeter

United States Court of Appeals, Third Circuit

November 28, 2017

JOAN KEDRA, in her own right and as personal representative of the estate of David Kedra, Appellant
v.
RICHARD SCHROETER

          Argued December 5, 2016

         On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2-15-cv-05223) District Judge: Honorable Eduardo C. Robreno

          Michael J. Quirk, Esq. (Argued) Gerald J. Williams, Esq. Williams Cuker & Berezofsky Counsel for Appellant

          Kevin R. Bradford, Esq. Stephen R. Kovatis, Esq. Claudia M. Tesoro, Esq. (Argued) Counsel for Appellee.

          Before: FISHER, [*] KRAUSE, and MELLOY, [**] Circuit Judges.

          OPINION

          KRAUSE, CIRCUIT JUDGE.

         This case arises from the grievous death of State Trooper David Kedra, who was shot and killed by his instructor, then-Corporal Richard Schroeter, during a routine firearms training. Although a long-term veteran of the police force and specifically certified in the safe use of firearms, Schroeter allegedly disregarded each of the steps that he previously acknowledged in writing were required to safely perform a live demonstration of a firearm-skipping over both his own safety check and an independent check by a second person, treating the gun as if it were unloaded instead of loaded, pointing it at a person instead of a safe target, bypassing the required visual and physical inspection before a "trigger pull, " and then pulling the trigger with the gun aimed at Kedra's chest. JA 31.

         Appellant brought a civil rights complaint under 42 U.S.C. § 1983 alleging that Schroeter's conduct had subjected her deceased son to a state-created danger in violation of his Fourteenth Amendment substantive due process rights. But because the complaint did not allege that Schroeter had actual knowledge that there was a bullet in the gun when he fired it at Kedra, the District Court held that Schroeter was entitled to qualified immunity and dismissed the complaint with prejudice. Its reasoning was that the complaint pleaded only an objective theory of deliberate indifference, i.e., what a reasonable official should have known because the risk was so obvious, which was not then-clearly established, and was insufficient to plead the clearly established subjective theory of deliberate indifference, i.e., that Schroeter was actually aware that his conduct carried a substantial risk of serious harm. We agree with the District Court that the objective theory of deliberate indifference was not clearly established at the time of the shooting. However, because obviousness of risk is relevant to proving actual knowledge and the allegations of the complaint here are more than sufficient to support a reasonable inference that Schroeter had such knowledge, we conclude the complaint adequately pleads a state-created danger claim under a then-clearly established theory of liability. We therefore will reverse the District Court's grant of qualified immunity and remand for further proceedings.

         I. Background

         As this is an appeal from a grant of a motion to dismiss, the factual allegations are taken from the complaint and are accepted as true.[1] See Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 642 n.1 (2008). David Kedra was a twenty-six-year-old Pennsylvania State Trooper stationed in Montgomery County, Pennsylvania. In September 2014, Kedra was ordered to attend a routine firearm safety training, which included a demonstration of the features and operation of the new model of a State Police-issued handgun. The training was led by then-Corporal Schroeter, a trained firearms instructor who had been a police officer for about twenty years.

         Before the training, Schroeter acknowledged in writing a list of firearms safety rules for instructors, including that he must always perform a safety check of a gun before using it for training; that he must implement a second check on whether it is loaded by, e.g., having a second person check the gun; that he must treat all guns as if they are loaded; that he must never point the muzzle of a gun at another person; that he must keep his finger off the trigger, unless he opens the gun to verify it is unloaded before pointing it at a safe target and pulling the trigger; and that he must open the gun to visually and physically determine that it is unloaded before ever pulling the trigger. At the training itself, however, Schroeter violated each of these rules when, in the course of explaining the "trigger reset" function on an operational handgun, he bypassed all of the safety checks, failed to physically or visually inspect the gun to ensure it was unloaded, raised the gun to chest level, pointed it directly at Kedra, and pulled the trigger. JA 32. The gun, in fact, was loaded, and it fired a bullet into Kedra's abdomen at close range, causing Kedra's death several hours later.

         Criminal charges were filed by state authorities, eventually resulting in Schroeter's guilty plea in Pennsylvania state court to five counts of reckless endangerment of another person and his retirement from the State Police. In addition, Kedra's mother, as the representative of her son's estate, filed a one-count civil complaint against Schroeter in the U.S. District Court for the Eastern District of Pennsylvania, claiming a violation of Kedra's substantive due process rights to life and liberty under the Fourteenth Amendment, and making the above-referenced factual allegations, including as to Schroeter's training and experience, his written acknowledgement of the risks and attendant safety protocols, and his guilty plea.

         Schroeter moved to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), claiming he was entitled to qualified immunity because "[t]he gravamen of [p]laintiff's [c]omplaint is that . . . Schroeter should have known that his firearm posed a substantial risk to those attending his class, not that . . . Schroeter actually did know that there was such a risk." Memorandum of Law in Support of Defendant's Motion to Dismiss Complaint at 9-10, Kedra v. Schroeter, No. 15-5223 (E.D. Pa. Jan. 6, 2016), ECF No. 5-1. That theory of liability, Schroeter argued, was not then-clearly established and, hence, he was entitled to qualified immunity. Schroeter relied in particular on Sanford v. Stiles, 456 F.3d 298, 310 n.13 (3d Cir. 2006) (per curiam), in which we identified as an open question whether "deliberate indifference"-the mental state required for a state-created danger claim like this one-could be demonstrated using an objective test (i.e., merely by pointing to a substantial risk of serious harm that is so obvious that it should have been known), or whether, instead, a plaintiff must show the defendant had actual, subjective knowledge of the risk.

         The District Court accepted both Schroeter's premise and conclusion, ruling, first, that Appellant's complaint did not plead deliberate indifference based on actual knowledge because Appellant conceded she "could not and would not plead that [Schroeter] knew there was a bullet in the gun, " Kedra v. Schroeter, 161 F.Supp.3d 359, 363 (E.D. Pa. 2016), and, second, that in view of Sanford, it was not clearly established that deliberate indifference could exist based only on the risk being "so obvious that it should be known, " id. at 364-65 (quoting Sanford, 456 F.3d at 309). The District Court acknowledged Appellant's argument that, by alleging Schroeter had pleaded guilty to reckless endangerment, Appellant had necessarily pleaded actual knowledge because the mens rea for this offense under Pennsylvania law is "conscious disregard of a known risk of death or great bodily injury to another person." Kedra, 161 F.Supp.3d at 364 n.5 (quoting Commonwealth v. Klein, 795 A.2d 424, 428 (Pa. Super. Ct. 2002)). However, the District Court deemed Schroeter's guilty plea irrelevant on the ground that it would not satisfy the criteria for non-mutual offensive collateral estoppel.[2] Id. Accordingly, the District Court viewed this case as "present[ing] the scenario anticipated but left unresolved by Sanford: a state actor proceeding despite a patently obvious risk that the actor should have recognized, but without actual knowledge that the risk existed, " and, thus, a theory of deliberate indifference that was not clearly established as required to defeat qualified immunity. Id. at 364-66. On that basis, the District Court dismissed the complaint with prejudice, [3] Kedra, 161 F.Supp.3d at 365-66, and this timely appeal followed.

         II. Jurisdiction and Standard of Review

         The District Court had federal question jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over both a District Court's dismissal under Federal Rule of Civil Procedure 12(b)(6) and its grant of qualified immunity. Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013); McLaughlin v. Watson, 271 F.3d 566, 570 (3d Cir. 2001). In reviewing an order of dismissal under Federal Rule of Civil Procedure 12(b)(6), we, like the District Court, must "accept as true all factual allegations in the complaint and draw all inferences from the facts alleged in the light most favorable to [the plaintiff]." Phillips v. Cty. of Allegheny, 515 F.3d 224, 228, 230 (3d Cir. 2008).

         III. Discussion

         The doctrine of qualified immunity shields government officials from civil liability for constitutional violations only if "their actions could reasonably have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton, 483 U.S. 635, 638 (1987). In considering whether qualified immunity attaches, courts perform a two-pronged analysis to determine: (1) "whether the facts that [the] plaintiff has alleged . . . make out a violation of a constitutional right, " and (2) "whether the right at issue was 'clearly established' at the time of [the] defendant's alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 232 (2009). Here, the District Court disposed of the complaint at the second prong by concluding that because Appellant had not alleged Schroeter's actual knowledge of a bullet in the chamber, her theory of deliberate indifference was based solely on the objective test we had identified in Sanford as unresolved, so that "the violative nature of Defendant's alleged conduct ha[d] not been clearly established." Kedra, 161 F.Supp.3d at 364-66.

         As a preliminary matter that will inform the scope of our review, we note that by taking this approach, the District Court addressed the "clearly established" inquiry only in part. For the question posed by the District Court-whether it was then-clearly established that obviousness of risk untethered from actual knowledge could prove deliberate indifference-goes to whether the plaintiff sufficiently pleaded the elements of a state-created danger claim, as then defined. See Phillips, 515 F.3d at 235, 240-42. In contrast, the clearly established inquiry at the second prong, as we have described it, goes not to whether a plaintiff sufficiently pleaded a constitutional violation (the question answered at the first prong), but to whether the right allegedly violated-defined in terms of the "particularized" factual context of that case, Anderson, 483 U.S. at 639-40-was a "clearly established statutory or constitutional right[] of which a reasonable [officer] would have known, " Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).[4]

         Granted, the contours of a given right are necessarily co-extensive with the scope of conduct that violates that right, so that where it would not be clear to "a reasonable official . . . that what he is doing violates [a] right, " Anderson, 483 U.S. at 640, the second prong of qualified immunity would not be satisfied regardless of whether the lack of clarity arose from an uncertain theory of liability or from the application of a clearly established theory of liability to a set of facts so novel as to deprive an actor of fair notice of the violative nature of his actions. But where a defendant contends that neither the theory of liability nor the right at issue is clearly established, the reviewing court may need to analyze both to determine conclusively whether the defendant is entitled to qualified immunity. See, e.g., Beers-Capitol, 256 F.3d at 142 n.15 (observing, on the one hand, that the constitutional right as defined by the factual context of that case was clearly established and, on the other hand, that the "doctrine of deliberate indifference was also clearly established at the relevant time").

         Here, the District Court addressed the "clearly established" inquiry only in the first sense, determining that the theory of liability was not clearly established. Because we conclude this was error, we also address the inquiry in the second sense, assessing whether, under the facts of this case, the specific right at issue was clearly established.[5] Thus, first we will undertake a review of relevant substantive due process principles. See infra Section III.A. Second, we will examine whether the complaint sufficiently pleads a violation of Kedra's substantive due process rights under a theory of deliberate indifference that was clearly established. See infra Section III.B. And third, we will consider whether the particular right at issue was clearly established at the relevant time, see infra Section III.C, i.e., "whether the law, as it existed [at the time of the shooting], gave [Schroeter] 'fair warning' that [his] actions were unconstitutional" in the particular factual scenario he confronted. Estate of Smith v. Marasco, 430 F.3d 140, 154 (3d Cir. 2005).

         A. Applicable Legal Principles

         In asserting her claim under 42 U.S.C. § 1983 for a deprivation of Kedra's rights to life and liberty, Appellant invokes the Due Process Clause, which at its core protects individuals against arbitrary government action. See Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). While "the Due Process Clause does not impose an affirmative obligation on the state to protect its citizens, " there is an exception to this general rule that nevertheless holds an officer liable if his conduct exposes an individual to a "state-created danger."[6] Phillips, 515 F.3d at 235. Such a claim requires proof of four elements: (1) the harm caused was foreseeable and fairly direct; (2) the state official "acted with a degree of culpability that shocks the conscience"; (3) the state and the plaintiff had a relationship such that "the plaintiff was a foreseeable victim of the defendant's acts"; and (4) the official affirmatively used his authority "in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger" than had he never acted. Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006).

         Here, the District Court focused, as do the parties on appeal, on the second element of a state-created danger claim.[7] See Kedra, 161 F.Supp.3d at 363. That is, because "[l]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process, " Lewis, 523 U.S. at 849, government action rises to the level of an actionable constitutional violation only when it is "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience, " id. at 847 n.8. The exact level of culpability required to shock the conscience, however, depends on the circumstances of each case, and the threshold for liability varies with the state actor's opportunity to deliberate before taking action. Phillips, 515 F.3d at 240-41; see also Lewis, 523 U.S. at 848-54.

         We have identified three potential levels of culpability. In "hyperpressurized environment[s] requiring a snap judgment, " an official must actually intend to cause harm in order to be liable. Vargas v. City of Philadelphia, 783 F.3d 962, 973 (3d Cir. 2015) (internal quotation marks omitted). In situations in which the state actor is required to act "in a matter of hours or minutes, " we require that the state actor "disregard a great risk of serious harm." Sanford, 456 F.3d at 310. And where the actor has time to make an "unhurried judgment[], " a plaintiff need only allege facts supporting an inference that the official acted with a mental state of "deliberate indifference." Id. at 309.

         As the District Court correctly recognized, see Kedra, 161 F.Supp.3d at 363, because Appellant here alleged that Schroeter had the opportunity to exercise "unhurried judgment[], " she was required to plead facts in her complaint supporting the inference that Schroeter acted with "deliberate indifference, " which we have described variously as a "conscious disregard of a substantial risk of serious harm, " Vargas, 783 F.3d at 973-74 (brackets and internal quotation marks omitted), or "willful disregard" demonstrated by actions that "evince a willingness to ignore a foreseeable danger or risk, " Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 910 (3d Cir. 1997). While categorically different from "intent to cause harm, " which is the threshold mental state reserved for officials in "hyperpressurized" situations where "snap judgment[s]" may be required, Vargas, 783 F.3d at 973, deliberate indifference "has an elusive quality to it, " Sanford, 456 F.3d at 301, "fall[ing] somewhere between intent, which 'includes proceeding with knowledge that the harm is substantially certain to occur' and negligence, which involves 'the mere unreasonable risk of harm to another, '" Morse, 132 F.3d at 910 n.10.

         Here the District Court examined one of the elusive aspects of deliberate indifference with which we and other Courts of Appeals have wrestled over time: whether deliberate indifference in the substantive due process context-as opposed to the Eighth Amendment context-may be satisfied using an objective test or only a subjective "actual knowledge" test. See Kedra, 161 F.Supp.3d at 364-65 (citing Sanford, 456 F.3d at 309 & n.13). In the Eighth Amendment context, the Supreme Court has rejected an objective standard for "deliberate indifference, " i.e., a standard where liability may be premised on an official's objective "failure to alleviate a significant risk that he should have perceived but did not, " Farmer v. Brennan, 511 U.S. 825, 838 (1994), and the Court has instead explicitly required a showing of "subjective culpability, " id. at 843 n.8, i.e., a showing that "the official kn[ew] of and disregard[ed] an excessive risk, " id. at 837. But uncertainty about whether this "subjective culpability" requirement carried over to pretrial detainees and other plaintiffs asserting substantive due process claims produced a split among the Courts of Appeals.[8] That split led us in Sanford to note, in the substantive due process context, "the possibility that deliberate indifference might exist without actual knowledge of a risk of harm when the risk is so obvious that it should be known, " 456 F.3d at 309, and to acknowledge shortly thereafter that we "ha[d] not yet definitively answered the question of whether the appropriate standard in a non-Eighth Amendment substantive due process case is subjective or objective, " Kaucher v. Cty. of Bucks, 455 F.3d 418, 430-31 (3d Cir. 2006).

         More recently, both the Supreme Court and this Court have spoken to the issue. In Kingsley v. Hendrickson, 135 S.Ct. 2466 (2015), distinguishing between the different language of the Eighth Amendment and the Due Process Clause and the different nature of those claims, the Supreme Court held that a pretrial detainee claiming a substantive due process violation based on excessive force "must show . . . only that the officers' use of that force was objectively unreasonable" and not "that the officers were subjectively aware that their use of force was unreasonable." Id. at 2470, 2475. While the Court acknowledged that "the defendant must possess a purposeful, a knowing, or possibly a reckless state of mind" because "liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process, " it clarified that this subjective requirement pertained only to "the defendant's state of mind with respect to his physical acts"-in other words, his actions themselves needed to be deliberate and not "accidental[]" or "negligent[]"-but did not pertain to whether the actions the defendant deliberately took were "unreasonable" or "excessive in relation to [a legitimate] purpose." Id. at 2472-73 (emphasis omitted). Rejecting the arguments that an objective test would devolve into a negligence standard, id. at 2474, was not "workable, " id., or would lead to a "flood of claims, " id. at 2476, the Court held that "the defendant's state of mind with respect to the proper interpretation" of his physical acts should be assessed by an "objective standard, " depending on "the perspective of a reasonable officer on the scene."[9] Id. at 2472-73.

         Consistent with this approach, we too recently embraced an objective standard in the context of a substantive due process claim-in particular, for a claim of state-created danger. In L.R. v. School District of Philadelphia, we denied qualified immunity to a teacher who released a kindergartener to a stranger who then abused the child. 836 F.3d 235 (3d Cir. 2016). After reiterating our observation in Sanford that "deliberate indifference might exist without actual knowledge of a risk of harm when the risk is so obvious that it should be known, " id. at 246, we held this standard was met by the allegations in that complaint. Specifically, we held the risk of harm from the teacher's conduct was "'so obvious' as to rise to the level of deliberate indifference, " id., and that L.R. had sufficiently pleaded as "a matter of common sense" that the teacher "knew, or should have known, about the risk of his actions, " id. at 245 (emphasis added). Although we indicated that the plaintiff's allegations also satisfied the subjective standard, id. at 246 ("What is more, . . . the fact that [the teacher] asked [the stranger] for her identification illustrates that [the teacher] himself was indeed aware of the risk of harm[.]"), we concluded that "[e]xposing a young child to an obvious danger is the quintessential example of when qualified immunity should not shield a public official from suit, " id. at 250.[10]

         Seeking to benefit from the trajectory of this case law, [11]Appellant would have us rely on L.R. to conclude an objective standard of deliberate indifference was clearly established at the time Schroeter shot Kedra and to reverse the District Court on that basis. We reject that invitation, however, because we assess qualified immunity based on the law that was "clearly established at the time an action occurred, " Harlow, 457 U.S. at 818, while L.R. was not decided until nearly two years after the action at issue in this case. That is, regardless of what may be deemed "clearly established" in the wake of Kingsley and L.R., we must look to the state of the law at the time of shooting. And at that point, as the District Court correctly recognized, it was not yet clearly established whether deliberate indifference in the substantive due process context was governed by an objective or subjective standard. See Kedra, 161 F.Supp.3d at 364-65 (citing Sanford, 456 F.3d at 309 & n.13). The question to which we therefore turn is whether Appellant pleaded deliberate indifference under the subjective test, which was then-clearly established, or under an objective test, which then was not.

         B. Whether Appellant Pleaded Her Claim Under A Clearly Established Theory of Deliberate Indifference

         Given the historical ambiguity in our case law, we agree with the District Court that Schroeter's arguments might have traction if Appellant had pleaded deliberate indifference based merely on what Schroeter should have known in view of the obviousness of a particular risk. But there's the rub: That is not what Appellant pleaded. Contrary to the way that Schroeter and the District Court characterize it, the complaint here clearly and unmistakably alleges facts that support an inference of actual, subjective knowledge of a substantial risk of lethal harm, and neither the Supreme Court nor we have wavered from the well-established principle that a plaintiff may plead and prove deliberate indifference in the substantive due process context using this subjective test.

         In the discussion to follow, we first address whether the complaint pleads deliberate indifference under the clearly established subjective test and then turn to the District Court's misunderstanding of that test in requiring Appellant to plead knowledge of the certainty of harm instead of knowledge of the substantial risk of harm.

         1. Application of the Deliberate Indifference Standard

         At the pleading stage, courts must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips, 515 F.3d at 233. Although "[f]actual allegations must be enough to raise a right to relief above the speculative level, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), we demand "only enough facts to state a claim to relief that is plausible on its face" and "do not require heightened fact pleading of specifics, " id. at 570. Determining whether the facts pleaded have "nudged" the claim "across the line from conceivable to plausible" is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679-80 (2009).

         To make this assessment on a Rule 12(b)(6) motion, "courts must consider the complaint in its entirety, " Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007), and "determine whether the complaint as a whole contains sufficient factual matter to state a facially plausible claim, " Argueta v. U.S. Immig. & Customs Enf't, 643 F.3d 60, 74 (3d Cir. 2011). "The inquiry, as several Courts of Appeals have recognized, is whether all of the facts alleged, taken collectively, give rise to a strong inference of scienter, not whether any individual allegation, scrutinized in isolation, meets that standard." Tellabs, 551 U.S. at 322-23.

         Here, then, the relevant question is whether the complaint, considering all the allegations, pleads sufficient facts to support the inference that when Schroeter pointed his gun at Kedra at close range and deliberately pulled the trigger without even once checking whether the gun was loaded, he acted with subjective deliberate indifference, i.e., actual awareness of a substantial risk of serious harm, lying "somewhere between intent . . . and negligence." Morse, 132 F.3d at 910 n.10. A plaintiff can plead deliberate indifference by reference to circumstantial and direct evidence. See Farmer, 511 U.S. at 842. Three broad categories of circumstantial evidence are alleged in the complaint, and we have deemed each probative of deliberate indifference in the past: (1) evidence that the risk was obvious or a matter of common sense, (2) evidence that the actor had particular professional training or expertise, and (3) evidence that the actor was expressly advised of the risk of harm and the procedures designed to prevent that harm and proceeded to violate those procedures.

         First, the complaint points to the obvious risk of harm in pointing the muzzle of a gun at another person and pulling the trigger, while skipping any kind of safety check. Perhaps because it concluded that Appellant pleaded deliberate indifference by relying on only the objective obviousness of risk, the District Court did not acknowledge or discuss the relevance of obviousness of risk to proving actual knowledge of risk. See Kedra, 161 F.Supp.3d at 362-66. But the Supreme Court has long recognized that, even under a subjective test, "the fact that the risk of harm is obvious" is relevant, among other pieces of evidence, to "infer the existence of this subjective state of mind." Hope v. Pelzer, 536 U.S. 730, 738 (2002). We, too, have observed that "subjective knowledge on the part of the official can be proved by circumstantial evidence to the effect that the excessive risk was so obvious that the official must have known of the risk."[12]Beers-Capitol, 256 F.3d at 133.

         For that reason, we have regularly relied on the obviousness of risk as a permissible and highly relevant basis from which to infer actual knowledge-even directing in our Model Civil Jury Instructions that, in assessing deliberate indifference for state-created danger claims, a jury is "entitled to infer from the obviousness of the risk that [the state actor] knew of the risk." Third Circuit Model Civil Jury Instructions § 4.14 (Mar. 2017). In Kneipp v. Tedder, for example, police officers sent a woman home "unescorted in a visibly intoxicated state in cold weather, " and we reversed a grant of summary judgment in their favor, citing the foreseeable and obvious risk that the woman would later fall down an embankment and suffer hypothermia. 95 F.3d 1199, 1201-03, 1208-09, 1211 (3d Cir. 1996). In Phillips v. County of Allegheny, 911 dispatchers gave confidential information to a distressed and suspended co-worker concerning the whereabouts of his ex-girlfriend, and we likewise reversed the dismissal of a complaint against the dispatchers because they were "aware that [the co-worker] was distraught over his break up" and they could reasonably foresee that some type of serious harm could result from giving him the information; hence, the inferences to be drawn from "ordinary common sense" supported the dispatchers' knowledge of risk. 515 F.3d at 228- 29, 241, 246. So too here: The risk of lethal harm when a firearms instructor skips over each of several safety checks designed to ascertain if the gun is unloaded, points the gun at a trainee's chest, and pulls the trigger is glaringly obvious, and this obviousness supports the inference that the instructor had actual knowledge of the risk of serious harm.

         Second, the complaint alleges that Schroeter was a specially trained firearms instructor with twenty years of experience. And that training and experience is no less relevant to Schroeter's actual knowledge of the substantial risk of harm here than the "medical training" of which we took note for the emergency medical technicians in Rivas v. City of Passaic, 365 F.3d 181, 185, 194-95 (3d Cir. 2004), or the "experience as a teacher in charge of a kindergarten classroom" that we deemed relevant to the teacher's knowledge of risk in releasing the child to a stranger in L.R., 836 F.3d at 245;[13] see also MBIA Ins. Corp. v. Royal Indem. Co., 426 F.3d 204, 217 (3d Cir. 2005) (observing that, even where a risk is "so obvious, " an individual's prior "experience and knowledge" makes it more likely that he will "realize[]" that risk). Thus, even if, hypothetically, the obviousness of the risk here would not be sufficient to impute actual knowledge to a layperson, the combination of obviousness with Schroeter's specialized training and expertise in firearms safety is easily sufficient to give rise to an inference of actual knowledge of risk.

         Third, the complaint alleges that Schroeter was expressly advised of the lethal risk in handling any operational firearm through the safety rules that he acknowledged in writing and that, as a training instructor, he himself was responsible for teaching to others. Those safety protocols were clear and detailed, requiring that an instructor, prior to demonstrating the use of a firearm, (a) conduct a safety check to ensure the gun was not loaded, (b) implement a second safety check by, e.g., having a second person independently verify the gun is not loaded, (c) always treat the firearm as if it were loaded, (c) point the muzzle only at a safe target, (d) never point the firearm at another person, (e) always keep his finger off the trigger unless firing at a safe target, and (f) before demonstrating a "trigger pull, " open the gun to visually and physically confirm it is unloaded. JA 31. The complaint alleges that Schroeter not only ignored these directives but directly contravened each and every one of them. Those allegations-which could be characterized as not merely circumstantial, but even direct, evidence of mens rea-give rise to at least as strong an inference of knowledge of risk as the kindergarten teacher's knowledge and disregard of school policy concerning the release of children in L.R., 836 F.3d at 240 & n.2, 245, and the 911 dispatchers' "unauthorized" disclosure of what they knew constituted "confidential information" in Phillips, 515 F.3d at 229, 241.

         In addition to these three categories of evidence that support an inference of actual knowledge, the complaint also alleges direct evidence of Schroeter's mental state in the form of his criminal plea to reckless endangerment. That guilty plea required Schroeter, as a matter of Pennsylvania law, to admit that he "recklessly engage[d] in conduct which place[d] . . . another person in danger of death or serious bodily injury, " 18 Pa. Cons. Stat. § 2705, with the mental state of "conscious[] disregard[] [of] a substantial and unjustifiable risk" of serious harm, 18 Pa. Cons. Stat. § 302(b)(3); see also Klein, 795 A.2d at 427-28. In other words, even assuming Appellant could not invoke "non-mutual offensive collateral estoppel" to seek a judgment based in part on issue preclusion-which was the ground on which the District Court disregarded the plea, [14]Kedra, 161 F.Supp.3d at 364 n.5-the allegation in the complaint that Schroeter pleaded guilty to these charges reflects a statement by a party-opponent, presumptively admissible at trial, see Fed. R. Evid. 801(d)(2), that Schroeter acted with the requisite knowledge of risk.

         In sum, this is not a case where Appellant's theory of deliberate indifference devolves to mere negligence or is based only on what Schroeter objectively should have known given the obvious risk. Instead, the obviousness of the risk in pointing a gun at a defenseless person and pulling the trigger without undertaking any safety check whatsoever only reinforces the many other allegations of the complaint reflecting Schroeter's "conscious disregard of a substantial risk of serious harm." Vargas, 783 F.3d at 973 (brackets and internal quotation marks omitted). "[D]raw[ing] all inferences from the facts alleged in the light most favorable to [Appellant], " Phillips, 515 F.3d at 228, the allegations in Appellant's complaint are more than sufficient to state a claim for a state-created ...


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