Lorraine Gormley v. Latanya Wood-El (069717) , 218 N.J. 72 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Lorraine Gormley v. LaTanya Wood-El (A-101/106-11) (069717)
Argued November 4, 2013 -- Decided June 30, 2014
ALBIN, J., writing for a majority of the Court.
In this appeal, the Court considers whether injuries suffered by an attorney while interviewing a client at a
state psychiatric hospital resulted from a state-created danger that violated her substantive-due-process rights under
the Fourteenth Amendment of the United States Constitution and whether defendants are entitled to qualified
immunity.
Plaintiff Lorraine Gormley was an attorney employed by the Department of the Public Advocate, Division
of Mental Health Advocacy, providing legal representation to clients involuntarily committed in state psychiatric
facilities, including Ancora Psychiatric Hospital (Ancora). Each ward at Ancora contained a day room in which up
to forty patients, including those who were involuntarily committed and classified as a danger to themselves or
others, could congregate. Visiting attorneys and psychiatrists also were required to use the day rooms for
professional interviews. Although frequent violence occurred in the day rooms, no security guards or cameras were
posted there. From October 2003 through December 2005, Ancora reported almost 4,000 assaults, including 810
assaults against staff members and visitors, 200 of which resulted in injuries.
In September 2005, Gormley arrived at Ancora to interview clients. She sat in a day room with her back
against the wall to prevent attacks from behind. One of her clients was B.R., who was suffering from a psychotic
disorder with hallucinations and who had been assigned Continuous Visual Observation (CVO) status because she
posed a safety risk to herself and others. Gormley, who was not informed that B.R. was on CVO status, sat near her
in order to hear over the noise in the day room. As Gormley turned her head, B.R. hit her several times. Gormley
tried to flee, but B.R. grabbed her by the hair, causing her to fall and strike her head on the concrete floor. When
Gormley regained consciousness, B.R. was still attacking her. Gormley was out of work for about four months due
to her physical and mental injuries.
Gormley filed a civil action against Ancora’s CEO, LaTanya Wood-El, and other government officials, in
their individual capacities, under both the Federal Civil Rights Act, 42 U.S.C.A. § 1983, and the New Jersey Civil
Rights Act, N.J.S.A. 10:6-2(c), alleging that her constitutional right to be free from state-created danger was
violated. On defendants’ motions for summary judgment, the trial court concluded that Gormley had presented
sufficient evidence to proceed on the civil-rights claims under the state-created-danger doctrine. The court deferred
deciding whether she was entitled to injunctive relief.
The Appellate Division concluded that the trial court erred in failing to dismiss the federal civil-rights
claims on qualified-immunity grounds. Gormley v. Wood-El, 422 N.J. Super. 426 (App. Div. 2011). Although the
panel determined that defendants violated Gormley’s Fourteenth Amendment substantive-due-process rights under
the state-created-danger theory, it found that defendants had qualified immunity because these rights were not
clearly established at the time she was attacked. The panel did not address Gormley’s claim for relief under the New
Jersey Civil Rights Act or her claim for injunctive relief. Gormley moved for leave to appeal the dismissal of her
claims based on qualified immunity, and defendants moved for leave to appeal the upholding of the civil-rights
claims under the state-created-danger theory. The Court granted the motions filed by Gormley, 210 N.J. 25 (2012),
and defendants, 216 N.J. 337 (2012).
HELD: Under the facts of this case, a lawyer assigned to represent a client civilly committed to a state psychiatric
hospital had a substantive-due-process right to be free from state-created dangers. Because that right was clearly
established at the time the lawyer was attacked, the state official defendants are not entitled to qualified immunity.
1
1. Viewing the evidence in the light most favorable to Gormley, the Court first considers whether a jury could find
that defendants violated Gormley’s federal substantive-due-process right to be free from state-created danger. The
analysis of this right is the same under both the Federal and New Jersey Civil Rights Acts. Although the Due
Process Clause of the Fourteenth Amendment protects against the government’s arbitrary deprivation of a liberty
interest, it does not generally confer an affirmative right to governmental aid to secure a liberty interest or confer
governmental protection to individuals from violence by private actors. Rather, the constitutional threshold is only
met if the State either creates the danger that proximately causes the injury or renders the victim more vulnerable to
danger. (pp. 22-29)
2. In Bright v. Westmoreland County, 443 F.3d 276 (3d Cir. 2006), cert. denied, 549 U.S. 1264 (2007), the United
States Court of Appeals for the Third Circuit developed a standard for application of the state-created-danger
doctrine, requiring a plaintiff to satisfy a four-prong test: (1) the ultimate harm must be foreseeable and direct; (2)
the conduct of the state actor must shock the conscience; (3) the plaintiff must be a specifically foreseeable victim or
part of a discrete class of foreseeable victims; and (4) the state actor must affirmatively use his authority either to
create a danger or render a person substantially more vulnerable to injury. Conscience-shocking conduct occurs if
the state actor intentionally causes unjustifiable harm, but not if the harm arises from negligence. For scenarios
between these two extremes, courts must conduct a fact-sensitive analysis since deliberate indifference that shocks
the conscience in one environment may not in another. Status as a state employee is not dispositive of the right to
pursue a Section 1983 claim. (pp. 29-37)
3. Adopting and applying the Bright state-created danger test, the Court concludes that Gormley was a member of a
discrete class of victims subject to the foreseeable harms set in motion by defendants. Defendants controlled the
movements of residents and visitors within Ancora, where assaults in day rooms were common and fairly
foreseeable. Defendants affirmatively used their authority to create the danger that rendered Gormley vulnerable to
the assault by establishing the regulations and environment to which Gormley had to submit while at Ancora.
Sufficient evidence exists to support Gormley’s claim that defendants acted with deliberate indifference to the
foreseeable dangers threatening attorneys assigned to represent committed patients. Thus, a rational jury could find
that all four Bright factors are met and that defendants violated Gormley’s substantive-due-process right to be free
from state-created dangers under the Fourteenth Amendment of the United States Constitution. Responding to the
dissent, the Court explains that it looked to the totality of the circumstances, rather than individual factors, to discern
the conscience-shocking conduct because no single brushstroke reveals the whole picture. In light of the unique
level of violence at Ancora, its conclusion will not open a floodgate of litigation against public entities. (pp. 37-47)
4. The application of qualified immunity is a matter of law for a court to decide. Under this doctrine, government
officials are shielded from a suit for civil damages when their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known. This balances the need to hold public
officials accountable when their conduct is irresponsible against the need to shield them when they perform their
duties reasonably. In order for a right to be clearly established, its contours must be sufficiently clear so that a
reasonable official would know that his conduct is violating that right. In the present case, the Court concludes that
Gormley’s right to be free from state-created danger was clearly established at the time of the assault. In light of the
history of violence at Ancora and the requirement that attorneys meet with clients in the chaotic day rooms,
reasonable hospital administrators knew or should have known that the conditions they created breached the
substantive-due-process guarantee of the United States Constitution. Thus, the Court reverses the Appellate
Division’s dismissal of the federal civil rights claim on qualified-immunity grounds. Finally, even if qualified
immunity were granted to defendants, Gormley would still have the right to pursue injunctive relief. (pp. 47-52)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART and the
matter is REMANDED to the trial court for further proceedings in accordance with the Court’s opinion.
JUSTICE LaVECCHIA, DISSENTING, joined by JUSTICE PATTERSON, expresses the view that a
substantive state-created-danger claim was not presented in this matter, and the majority’s holding to the contrary
will impact numerous governmental operations in settings such as schools and prisons, while the totality-of-the-
circumstances approach leaves government officials uncertain as to their risk of personal liability. Moreover, even
if a claim were presented, it was not clearly established at the time Gormley suffered her injuries, thereby rendering
2
defendants qualifiedly immune from suit.
CHIEF JUSTICE RABNER and JUDGE RODRÍGUEZ (temporarily assigned) join in JUSTICE
ALBIN’s opinion. JUSTICE LaVECCHIA filed a separate dissenting opinion, in which JUSTICE
PATTERSON joins. JUDGE CUFF (temporarily assigned) did not participate.
3
SUPREME COURT OF NEW JERSEY
A-101/106 September Term 2011
069717
LORRAINE GORMLEY,
Plaintiff-Appellate
and Cross-Respondent,
v.
LATANYA WOOD-EL, Chief
Executive Officer, Ancora
Psychiatric Hospital;
JENNIFER VELEZ, Current
Commissioner and WILLIAM
WALDMAN, Former Commissioner,
New Jersey Department of
Human Services; KEVIN
MARTONE, Current Assistant
Commissioner; and ALAN G.
KAUFMAN, Former Director,
Division of Mental Health
Services, Department of Human
Services,
Defendants-Respondents
and Cross-Appellants.
Argued November 4, 2013 – Decided June 30, 2014
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 422
N.J. Super. 426 (2011).
Justin T. Loughry argued the cause for
appellant and cross-respondent (Loughry and
Lindsay, attorneys; Mr. Loughry and Lawrence
W. Lindsay, on the briefs).
Michael C. Walters, Assistant Attorney
General, argued the cause for respondents
and cross-appellants (John H. Hoffman,
Acting Attorney General of New Jersey,
attorney; Lewis A. Scheindlin, Assistant
1
Attorney General, of counsel; Mr. Walters
and Randall B. Weaver, Deputy Attorney
General, on the briefs).
JUSTICE ALBIN delivered the opinion of the Court.
Lorraine Gormley was assigned to provide legal
representation to an involuntarily committed patient at a state-
run psychiatric hospital. To prepare for an upcoming commitment
hearing, at the direction of hospital officials, Gormley met
with her client in the hospital’s unsupervised day room, a place
where psychotic patients milled about and where violence
frequently erupted. During the meeting, Gormley’s mentally
disturbed client suddenly and brutally attacked her, inflicting
serious bodily injuries.
Gormley filed a civil action against the chief executive
officer of the hospital and officials at the Department of Human
Services under both the Federal Civil Rights Act, 42 U.S.C.A. §
1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c),
and under the state common law. She alleged that these
officials violated her constitutional right to be free from
state-created danger, a right protected by the substantive-due-
process guarantee of the United States Constitution.
The trial court denied summary judgment to the defendant
state officials on both Gormley’s federal and state civil-rights
claims but dismissed her common-law claim. The Appellate
Division determined that Gormley presented sufficient evidence
2
to establish a violation of her federal constitutional rights.
It held, however, that those rights were not clearly established
at the time of the assault on Gormley and therefore dismissed
the claims against the officials on the ground of qualified
immunity.1 Gormley v. Wood-El, 422 N.J. Super. 426, 444 (App.
Div. 2011).
We now reverse. We hold that, in this case, the lawyer
assigned to represent a client civilly committed in a state
psychiatric hospital had a substantive-due-process right,
guaranteed by the Fourteenth Amendment of the United States
Constitution, to be free from state-created dangers. We also
hold that the right was clearly established at the time Gormley
was viciously attacked by her client in the confines of the
hospital. We therefore conclude that the Appellate Division
erred in granting the state officials qualified immunity. This
matter is remanded to the trial court for further proceedings
consistent with this opinion.
I.
A.
In September 2005, Lorraine Gormley was an attorney
employed by the Department of the Public Advocate, Division of
1
The Appellate Division did not address Gormley’s state
constitutional claim.
3
Mental Health Advocacy.2 Gormley was assigned to provide legal
representation to clients involuntarily committed in state
psychiatric facilities, such as Ancora Psychiatric Hospital
(Ancora), a facility staffed and managed by the New Jersey
Department of Human Services, Division of Mental Health
Services. Patients involuntarily committed have a right to
counsel at their commitment hearings, and those who are indigent
have a right to appointed counsel. See In re S.L., 94 N.J. 128,
142 (1983). On September 22, 2005, while at Ancora, Gormley met
for the first time with her client B.R., a 21-year-old woman
committed sixteen days earlier for a “psychotic disorder” that
induced hallucinations. At the start of the interview in the
hospital’s crowded and chaotic day room, B.R. violently attacked
Gormley in the presence of hospital staff.
Two years later, Gormley filed a two-count complaint,
naming as defendants various officials employed by the
Department of Human Services: LaTanya Wood-El, Chief Executive
Officer of Ancora; Jennifer Velez, the current Human Services
Commissioner; William Waldman, its former Commissioner; Kevin
Martone, Assistant Commissioner in the Division of Mental Health
Services; Alan Kaufman, former Director of the Division of
Mental Health Services; and John and Jane Doe employees and
2
The Division of Mental Health Advocacy was transferred to the
Office of the Public Defender in 2010. L. 2010, c. 34, § 30
(codified at N.J.S.A. 52:27EE-37).
4
supervisors at Ancora. In the complaint, Gormley asserts causes
of action under the Federal Civil Rights Act, 42 U.S.C.A. §
1983, and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c).
She alleges that defendants violated her substantive-due-process
rights guaranteed by the New Jersey and Federal Constitutions.
She asserts that these officials acted with deliberate
indifference to her physical safety in the face of known dangers
within their control. She maintains that they failed to take
reasonable steps to safeguard her from a violent assault and
failed to train or supervise the hospital staff on how to
promptly prevent or stop such an assault. Gormley also brought
a common-law tort claim, asserting that defendants failed to
maintain the hospital in a safe condition for persons, such as
her, who are required to be on the premises for business or
professionally related matters. She seeks compensatory and
punitive damages, attorney’s fees and costs, and injunctive
relief. Although the complaint does not specify whether
defendants were sued in their individual or official capacities,
or both, Gormley made clear at the summary-judgment hearing that
defendants were sued only in their individual capacities.3
3
“Personal-capacity suits . . . seek to impose individual
liability upon a government officer for actions taken under
color of state law.” Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct.
358, 362, 116 L. Ed. 2d 301, 309 (1991). When an official is
sued in his individual capacity, he is personally liable for any
5
B.
At the conclusion of discovery, defendants moved for
summary judgment on all claims. The trial court dismissed the
common-law claims but not the federal and state civil-rights
claims. After granting defendants’ motion for leave to appeal,
the Appellate Division agreed with the trial court that there
was a triable issue of whether defendants violated Gormley’s
federal right to substantive due process. The Appellate
Division, nevertheless, concluded that that right was not
clearly established at the time of the assault on Gormley and
therefore granted defendants qualified immunity and dismissed
the federal civil-rights claim. The Appellate Division did not
address the state civil-rights claim. The parties, however,
have proceeded as though the Appellate Division dismissed the
state civil-rights claim on qualified-immunity grounds as well.
judgment resulting from his violation of another’s federal
rights. Ibid.
In contrast, an official-capacity suit “is not a suit against
the official [personally] but rather is a suit against the
official’s office.” Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 58
(1989). “[A]n award of damages against an official in his
personal capacity can be executed only against the official’s
personal assets,” whereas an award against him in his official
capacity can be executed against the government entity itself,
which is the real party in interest. Kentucky v. Graham, 473
U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114, 121
(1985).
6
Gormley appeals from the Appellate Division’s dismissal of
her civil-rights claims on the basis of qualified immunity.
Defendants appeal from the Appellate Division’s holding that
they violated Gormley’s right to substantive due process. In
both appeals, we must determine whether defendants were entitled
to summary judgment.
A court should grant summary judgment only when the record
reveals “no genuine issue as to any material fact” and “the
moving party is entitled to a judgment or order as a matter of
law.” R. 4:46-2(c). In deciding whether summary judgment was
either properly granted or denied, “we apply the same standard
governing the trial court -- we view the evidence in the light
most favorable to the non-moving party.” Murray v. Plainfield
Rescue Squad, 210 N.J. 581, 584 (2012). In this appeal, we must
therefore view the summary-judgment record through the prism of
Gormley’s best case, giving Gormley -- the non-moving party --
the benefit of the most favorable evidence and most favorable
inferences drawn from that evidence. See id. at 584-85.4
The parties dispute how we should construe the substantive-
due-process guarantee of the Federal Constitution and the
federal and state civil-rights statutes. Our standard of review
in construing the meaning of a constitutional provision or a
4
It bears mentioning that, for the most part, the facts are not
in dispute.
7
statute is de novo; we do not defer to the interpretative
conclusions of the trial court or Appellate Division. See
Nicholas v. Mynster, 213 N.J. 463, 478 (2013); Manalapan Realty,
L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
With these principles of law in mind, we turn first to the
summary-judgment record.
II.
A.
In September 2005, Ancora was comprised of five secure
patient buildings, including the Cedar Building. That building
predominantly housed involuntarily committed patients suffering
mental illnesses who were classified as a danger to themselves,
others, or property. Cf. N.J.S.A. 30:4-27.2(m) (defining “in
need of involuntary commitment”). The Cedar Building was
divided into four locked wards. Each ward had a roughly thirty-
foot by thirty-foot day room that included a television, tables,
and chairs.
According to one source, “bedlam” reigned in these day
rooms. At times, an entire ward of thirty-five to forty
patients would be in attendance in a day room where
professionals, such as attorneys or psychiatrists, might be
present. No security guards were posted to provide protection
in the day rooms or anywhere at Ancora other than the
8
entranceway to the hospital. The day rooms were the scene of
frequent fights and violence. Often, attorneys and
psychiatrists were the victims of assaults by patients.
Although Ancora had a policy that provided for family
members to meet with patients in quiet, private rooms,
supervised by a staff member, lawyers were relegated to the
noisy, violent, and combustible day rooms to conduct client
interviews.
Ted Novak, an attorney in the Office of the Public Advocate
and Gormley’s supervisor, testified that he had been assaulted
three times by patients at Ancora before the attack on Gormley.
He noted that similar facilities had security guards but none
were present at Ancora. He explained that when interviewing a
client in the day room there would be “a lot of noise from
psychotic patients who [were] going off” and “screaming.” He
would constantly look over his shoulder to make certain he was
safe.
Three staff psychiatrists gave deposition testimony that
patients assaulted them on various occasions at Ancora, with
some of those assaults occurring in the day rooms of the Cedar
Building. One of those psychiatrists had to undergo nasal
surgery after a patient assault. The same psychiatrist
described an incident in which a resident ran across a day room
to attack her while she interviewed a patient. The
9
psychiatrist’s patient -- not a staff member at Ancora --
intervened to prevent the assault. Then the psychiatrist had to
intercede to stop her patient from pummeling her assailant.
Ancora’s CEO, LaTanya Wood-El, knew about this incident yet,
when deposed, could not remember if she took any steps to
prevent a recurrence. Two staff psychiatrists testified that,
unlike Ancora, other psychiatric hospitals where they had worked
provided security guards and private rooms for patient
interviews.
From October 2003 through December 2005, Ancora recorded
3846 assaults committed by patients on its grounds, including
810 assaults committed against staff members and visitors. Of
those 810 assaults, injuries were suffered in 200 cases.
Gormley filed an expert report from Robert Sadoff, a
psychiatrist with forty-five years of experience examining
patients committed to state hospitals. Dr. Sadoff stated that
he knew “of no other hospital or facility with similar numbers
of assaults” or lack of protective safeguards for professionals
conducting interviews or examinations. In his more than four
decades of practice in psychiatric hospitals, he conducted
patient interviews in a private room with a security guard
available if needed. He had never been attacked while examining
a patient at a hospital. In his view, an “attorney requires not
only privacy to examine and interview her client, but also needs
10
the security of a security guard, as exists in most other
psychiatric hospitals.” He concluded that Ancora should have
had in place protocols and standards for the protection of
visiting professionals.
Gormley’s other expert, Mark Rappaport, a Quality Care
Facility Review Specialist employed by the State of New York,
came to the same basic conclusion in a report he submitted:
“[T]he day room is [a] . . . potentially dangerous place for
often confidential, sensitive, and personal interviews between
patients and visitors (including attorneys) to take place.”
B.
On September 22, 2005, Gormley arrived at Ancora to meet
with clients whom she had been appointed to represent at
commitment hearings that week. One of those clients was B.R., a
21-year-old woman involuntarily committed sixteen days earlier.
B.R. was suffering from a “psychotic disorder due to medical
condition with hallucinations.” B.R. was confined to a ward in
the Cedar Building and assigned Continuous Visual Observation
(CVO) status. CVO status is conferred on “patients who
demonstrate a safety risk to self, others, and property.” In
accordance with Ancora’s protocols, B.R.’s CVO status required
an assigned staff member to keep her under “continual visual
observation” at all times.
11
Gormley entered the ward’s day room and sat at a small
table awaiting her client. As a precaution, she placed her back
against the wall so that no one could attack her from behind.
Ancora offered no option of a separate interview room, did not
post security guards, did not use an electronic camera to
monitor the day room, and did not provide Gormley with access to
an emergency call device. In the day room, patients -- many in
psychotic states, a majority posing a danger to themselves and
others -- were freely milling about.
A staff member located and brought B.R. to the day room.
But no one informed Gormley that B.R. was on CVO status based on
a safety-risk assessment. B.R. sat at the table where she was
to be interviewed. Gormley positioned herself catty-corner to
B.R. because the noise in the day room made it impossible to
hear B.R. from across the table while conducting a confidential
interview. With the two in close physical proximity to each
other, the interview began. As Gormley turned her head to write
some notes, B.R., suddenly and without warning, struck Gormley
about the head and face several times. As Gormley attempted to
flee, B.R. grabbed her by the hair and pulled her backward,
causing her to fall and strike her head against the concrete
floor. Gormley lost consciousness. She awakened to find B.R.
continuing to attack her. No one intervened to stop the
assault. As Gormley tried to protect herself by kicking B.R.,
12
she heard an encouraging voice say, “That’s it. Kick her off of
you.” Gormley freed herself without anyone coming to her aid.5
Staff then escorted B.R. out of the day room.
Gormley “was dazed and in pain and was unable to walk or
drive anywhere.” One of her colleagues from the Division of
Mental Health Advocacy transported her to the infirmary on the
grounds of Ancora, and from there she went to the emergency room
at Virtua Hospital. In all, Gormley was out of work three to
four months due to her injuries. In addition to the physical
head injury, she suffered memory loss, cognitive and visual
impairment, sleep disturbances, extreme fatigue, and post-
traumatic stress disorder. In 2009, she was on a four-day work
schedule and receiving “treatment from a neurologist,
psychologist, cognitive therapist, and neuro-therapist.”
When deposed, CEO Wood-El was asked whether, after the
assault on Gormley, she instituted “any changes with respect to
how attorney/patient visits were handled.” She responded, “No.
I wouldn’t be required to.”
III.
A.
5
One staff member stated otherwise but, as noted earlier, at
this procedural posture the evidence must be viewed in the light
most favorable to plaintiff.
13
Defendants moved for summary judgment on all of Gormley’s
claims. The trial court dismissed Gormley’s state common-law
claim, finding that the Workers’ Compensation Act provided the
exclusive remedy for that claim.6 On the other hand, the trial
court denied defendants’ summary-judgment motion to dismiss the
federal and state civil-rights claims on substantive-due-process
and qualified-immunity grounds. The court concluded that
Gormley had presented sufficient evidence to proceed under the
state-created-danger doctrine, leaving for the jury the ultimate
decision whether defendants violated Gormley’s rights and
leaving for the court’s later consideration whether those rights
were clearly established at the time of the day-room assault.
The court also deferred resolving whether Gormley was entitled
to injunctive relief.
B.
The Appellate Division granted leave to appeal and
concluded that the trial court erred in failing to dismiss the
federal civil-rights claims on qualified-immunity grounds.
Although the Appellate Division “[r]eversed and remanded for the
entry of an order granting summary judgment dismissing
plaintiff’s Section 1983 claims,” Gormley, supra, 422 N.J.
6
It is noteworthy that, at the summary-judgment hearing, the
Deputy Attorney General representing defendants expressed that
he did not believe that Gormley’s status as “a state employee
impacts on her federal rights.”
14
Super. at 444, it did not address two remaining issues --
Gormley’s claim for relief under the New Jersey Civil Rights Act
and her claim for injunctive relief.
On the Section 1983 claim, the Appellate Division first
determined that the facts, viewed in the light most favorable to
Gormley, demonstrated that defendants violated Gormley’s
Fourteenth Amendment substantive-due-process rights under the
state-created-danger theory. Id. at 440. In support of that
theory of constitutional liability, the panel cited a number of
federal courts of appeals, including the Third Circuit Court of
Appeals. Id. at 436-37 (citing Kneipp v. Tedder, 95 F.3d 1199,
1205 (3d Cir. 1996)). In particular, the panel looked to the
Third Circuit’s four-factor test for satisfying the state-
created-danger doctrine:
(1) the harm ultimately caused was
foreseeable and fairly direct;
(2) the state actor acted in willful
disregard for the safety of the plaintiff;
(3) there existed some relationship between
the state and the plaintiff; [and]
(4) the state actors used their authority to
create an opportunity that otherwise would
not have existed for the third party’s crime
to occur.
[Kneipp, supra, 95 F.3d at 1208 (line breaks
added) (quoting Mark v. Borough of Hatboro,
51 F.3d 1137, 1152 (3d Cir.), cert. denied,
516 U.S. 858, 116 S. Ct. 165, 133 L. Ed. 2d
15
 107 (1995)), quoted in Gormley, supra, 422
N.J. Super. at 437.]
The panel focused on the fourth factor, which “is
predicated upon the states’ affirmative acts which work” to
render a citizen more vulnerable to danger. Gormley, supra, 422
N.J. Super. at 437-38 (internal quotation marks omitted)
(quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 282 (3d
Cir. 2006), cert. denied, 549 U.S. 1264, 127 S. Ct. 1483, 167 L.
Ed. 2d 228 (2007)). The panel found that the evidence supported
that fourth factor: Gormley’s “liberty was restrained, albeit
in a temporary sense, as soon as she entered Ancora to provide
the constitutionally-mandated services”; Gormley had no choice
but to meet with her client at Ancora; Gormley “had no ability
to dictate the conditions under which she met with her client,
including the location of the consultation session”; the Ancora
staff knew that B.R. posed a risk of harm to others; Gormley was
not told of B.R.’s CVO status; defendants were “acutely aware of
the history of assaultive behavior by its patients against”
other patients, staff, and visitors; and, last, “defendants
failed to take appropriate measures to safeguard individuals
such as [Gormley] from physical attack.” Id. at 439. Given
these facts, the panel held that defendant state actors rendered
Gormley “vulnerable to foreseeable injury by their deliberate
16
indifference to her safety needs.” Id. at 440 (citation and
internal quotation marks omitted).7
However, the panel also held that Gormley’s substantive-
due-process right to be free from state-created dangers was not
clearly established at the time B.R. attacked her “and
continue[s] to remain unclear, not having been addressed by the
[United States] Supreme Court or [the New Jersey Supreme]
Court.” Id. at 444. Accordingly, the panel granted defendants
qualified immunity on the basis that “defendants did not engage
in any affirmative acts to create the dangerous condition,” even
if they were deliberately indifferent to “the foreseeable risk
of harm” to Gormley. Id. at 443.
C.
Gormley moved for reconsideration, arguing that her right
to injunctive relief was not extinguished by the grant of
qualified immunity to the individual named defendants. The
Appellate Division denied that motion without comment.
Gormley then moved for leave to appeal the Appellate
Division’s dismissal of her claims based on qualified immunity,
and defendants moved for leave to appeal the Appellate
Division’s upholding of the civil-rights claims under the state-
7
The Appellate Division rejected defendants’ contention that
plaintiff was barred from suit as their employee. See id. at
438 (“[P]laintiff was not an Ancora employee . . . . Nor was
she an employee of the Department of Human Services or any of
its divisions.”).
17
created-danger theory. We granted the motions filed by Gormley,
210 N.J. 25 (2012), and defendants, 216 N.J. 337 (2012).
IV.
A.
Defendants assert that the “Fourteenth Amendment does not
impose a duty on State officials to protect fellow State
employees (or the public generally)” from violence by private
individuals unless the State either has a “special relationship”
to the plaintiff or “affirmatively acts to create a danger to
the plaintiff she would not face absent the [S]tate’s
affirmative action.” Defendants argue that the Appellate
Division erred in finding a state-created-danger cause of action
even though defendants “did not affirmatively act to create a
danger to [Gormley] that was not inherent in her freely chosen
work.” Defendants emphasize that Gormley entered Ancora
voluntarily and that her liberty was not restrained inside, even
temporarily. Defendants distinguish their substantive-due-
process obligation to protect involuntarily committed patients
from those who freely enter the institution. Defendants take
the position that the substantive-due-process guarantee of the
Federal Constitution does not require Ancora to provide security
for a visitor, even if the hospital officials have knowledge
about the violent tendencies of an individual patient and direct
18
and control where the visitor must meet the patient. Defendants
do concede that if the Ancora officials affirmatively mislead a
visitor about the dangers presented by a patient then the state-
created-danger theory might apply.
Defendants also argue that a constitutional violation
cannot arise from defendants’ failure to provide Gormley a safe
workplace, citing Collins v. City of Harker Heights, 503 U.S.
115, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992). They submit
that the Workers’ Compensation Act is the exclusive remedy for
Gormley because she and defendants are all State employees.
In contrast, Gormley argues that the Appellate Division
properly found that she had presented sufficient evidence to
establish a violation of her substantive-due-process rights.
She highlights that she was a court-appointed attorney rendering
constitutionally required representation to an involuntarily
committed patient at Ancora -- “a locked facility” -- in a ward
controlled by defendants and that she was not “injured in the
free world by some private actor” over whom defendants had no
control. In Gormley’s view, to establish state-created-danger
liability in the circumstances of this case, it is enough to
show that defendants took no measures to protect her after they
brought her into close proximity with someone they knew to be
violent and then abandoned her to that violence. According to
Gormley, the United States Constitution protects her from the
19
exercise of state authority that “create[s] an opportunity that
otherwise would not have existed for the third party’s crime to
occur.”
Gormley, moreover, rejects the notion that she had an
employee-employer relationship with defendants who “operated
Ancora and created the dangerous visiting environment for
outside professionals.” Last, she maintains that because
defendants restrained her ability to act for herself inside the
facility, they had a “special relationship” to her -- an
affirmative duty to take steps necessary to ensure her safety.8
8
Despite the allegations in her complaint, Gormley did not
advance or develop her claim that defendants violated the
substantive-due-process guarantee of the New Jersey Constitution
-- not in her argument before the trial court, not in her brief
to the Appellate Division, and not in her brief to or oral
argument before this Court. On none of those occasions did she
mention Article I, Paragraph 1 of our State Constitution as a
substantive-due process source for a state-created-danger
doctrine. The failure to squarely address this potential claim
may be one reason why the Appellate Division is entirely silent
on the issue in its opinion. Only after this Court forwarded a
letter to counsel inquiring about the status of the state
constitutional claim did Gormley explain that she “reads the
Appellate Division’s silence on the state statutory and state
constitutional claims as not significant. We believe that the
Appellate Division would apply its [federal civil
rights/constitutional] analysis to the state civil rights
statutory/constitutional claims.” In other words, Gormley
perceives no distinction between the federal and state
constitutional analysis.
We decline to address for the first time a potentially new
doctrine under our state constitution in light of Gormley’s
failure to argue or brief the issue, or develop the type of
record that would assist the Court in resolving so important a
matter. We consider the state-constitutional claim to have
20
B.
Gormley argues that the right to be free from state-created
danger, enforceable through Section 1983, was clearly
established both in federal courts, including the Third Circuit,
and in the Appellate Division at the time Gormley was attacked,
and therefore the panel erred in granting qualified immunity to
defendants. She maintains that reasonable hospital
administrators would have understood that “putting an individual
in danger, increasing his or her risk of harm, or rendering him
or her more vulnerable to danger would have violated that
individual’s Fourteenth Amendment substantive due process
rights,” citing DiJoseph v. City of Philadelphia, 953 F. Supp.
602, 610 (E.D. Pa. 1997), aff’d, 156 F.3d 1224 (3d Cir. 1998).
Finally, Gormley submits that qualified immunity conferred
on individual defendants does not deprive her of the right to
injunctive relief to remedy an ongoing constitutional violation.
Gormley continues to represent involuntarily committed clients,
except at Ancora on doctor’s orders. Gormley contends she had
no obligation to raise her claim for injunctive relief before
the Appellate Division because she succeeded on that issue
before the trial court. She asks for this Court to reinstate
that claim erroneously dismissed by the panel.
lapsed, and we will resolve only the federal constitutional
claim, which has been fully briefed and argued.
21
On the other hand, defendants ask us to affirm the panel’s
dismissal of the constitutional claims based on qualified
immunity. They contend that case law did not place them on
notice that the Due Process Clause imposed a duty “to provide
[Gormley] with a safe working environment” in a psychiatric
hospital. They insist that they could not have known that their
conduct was unlawful.
Additionally, they submit that the Appellate Division
correctly denied Gormley injunctive relief. Defendants state
that Gormley had the obligation to argue that injunctive relief
would survive a finding of qualified immunity and that her
failure to do so constitutes waiver of the issue before the
Appellate Division. They also contend that the issue of
injunctive relief is moot because Gormley’s doctor has
restricted her from counseling clients at Ancora.
V.
Viewing the evidence and evidential inferences in the light
most favorable to the non-moving party -- Gormley -- we must
decide (1) whether a jury could find that defendants violated
Gormley’s federal substantive-due-process right to be free from
state-created danger; if so, (2) whether the right was clearly
established when Gormley suffered her injuries, thus determining
the applicability of qualified immunity; and (3) whether
22
injunctive relief is available to Gormley. We begin our
analysis with Gormley’s substantive-due-process claim.
A.
Gormley asserts a cause of action under a provision of the
Federal Civil Rights Act of 1871, c. 22, § 1, 17 Stat. 13, 13
(codified as amended at 42 U.S.C.A. § 1983). That statute
provides that any official who, under color of state law,
deprives a person of “any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other
proper proceeding for redress.” 42 U.S.C.A. § 1983. Section
1983 is a means of vindicating rights guaranteed in the United
States Constitution and federal statutes. Baker v. McCollan,
443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694 n.3, 61 L. Ed. 2d
433, 442 n.3 (1979).
In addition to her federal civil-rights claim, Gormley
asserts a claim under the analogous New Jersey Civil Rights Act,
N.J.S.A. 10:6-1 to -2. Section 1983 applies only to
deprivations of federal rights, whereas N.J.S.A. 10:6-1 to -2
applies not only to federal rights but also to substantive
rights guaranteed by New Jersey’s Constitution and laws. The
New Jersey Civil Rights Act provides, in relevant part, that:
Any person who has been deprived of any
substantive due process or equal protection
rights, privileges or immunities secured by
23
the Constitution or laws of the United
States, or any substantive rights,
privileges or immunities secured by the
Constitution or laws of this State, or whose
exercise or enjoyment of those substantive
rights, privileges or immunities has been
interfered with or attempted to be
interfered with, by threats, intimidation or
coercion by a person acting under color of
law, may bring a civil action for damages
and for injunctive or other appropriate
relief.
[N.J.S.A. 10:6-2(c) (emphasis added).]
Like Section 1983, N.J.S.A. 10:6-2(c) is a means of vindicating
substantive rights and is not a source of rights itself.
Through both Section 1983 and the New Jersey Civil Rights
Act, Gormley seeks to vindicate her right to liberty protected
by the Fourteenth Amendment. The Fourteenth Amendment analysis
under both statutes is the same. That Amendment provides, among
other things, that “no State shall . . . deprive any person of
life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. “The Due Process Clause guarantees more
than fair process”; it “provides heightened protection against
government interference with certain fundamental rights and
liberty interests.” Washington v. Glucksberg, 521 U.S. 702,
719-20, 117 S. Ct. 2258, 2267, 138 L. Ed. 2d 772, 787 (1997).
Substantive due process protects many now-familiar
fundamental rights, such as the right to marital privacy,
Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed.
24
2d 510 (1965); the right to have children, Skinner v. Oklahoma
ex rel. Williamson, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655
(1942); and the right to bodily integrity, Rochin v. California,
342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952).
Additionally, the Fourteenth Amendment’s Due Process Clause
protects the liberty interest of patients involuntarily
committed to state psychiatric hospitals and requires that the
State provide safe conditions for confinement. Youngberg v.
Romeo, 457 U.S. 307, 315-16, 102 S. Ct. 2452, 2458, 73 L. Ed. 2d
28, 37 (1982). Indeed, the Supreme Court has pronounced that
the State also has an “unquestioned duty to provide reasonable
safety for all . . . personnel within the [psychiatric]
institution.” Id. at 324, 102 S. Ct. at 2462, 73 L. Ed. 2d at
42.
The substantive-due-process right that Gormley asserts here
is the right to be free from state-created danger, mentioned in
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189,
201, 109 S. Ct. 998, 1006, 103 L. Ed. 2d 249, 263 (1989). In
that case, the mother of Joshua DeShaney sued a county, its
Department of Social Services (Social Services), and related
officials for depriving her son of his Fourteenth Amendment
substantive-due-process right to liberty. Id. at 193, 109 S.
Ct. at 1002, 103 L. Ed. 2d at 257. While young Joshua was in
the custody of his father, Social Services reviewed complaints
25
and evidence that Joshua was subject to repeated physical abuse
by the father. Id. at 192-93, 109 S. Ct. at 1001, 103 L. Ed. 2d
at 257. Despite substantial evidence of such abuse -- evidence
that led the agency to secure temporary protective custody of
Joshua -- Social Services dutifully recorded Joshua’s injuries
but took no action to remove the child from his home. Ibid.
By age four, Joshua was beaten so severely by his father that he
lapsed into a coma and suffered serious brain damage. Id. at
193, 109 S. Ct. at 1001-02, 103 L. Ed. 2d at 257.
On these facts, the United States Supreme Court held that
the “liberty” protected by the Fourteenth Amendment’s Due
Process Clause did not guarantee Joshua protection from violence
from a private person, such as his father. Id. at 201, 109 S.
Ct. at 1006, 103 L. Ed. 2d at 263. The Court held that the Due
Process Clause is “a limitation on the State’s power to act, not
. . . a guarantee of certain minimal levels of safety and
security.” Id. at 195, 109 S. Ct. at 1003, 103 L. Ed. 2d at
258-59. Thus, although the Due Process Clause protects against
the government’s arbitrary deprivation of a liberty interest, it
does not generally confer an “affirmative right to governmental
aid” to secure a liberty interest or generally confer protection
to individuals from violence by “private actors.” Id. at 195-
96, 109 S. Ct. at 1003, 103 L. Ed. at 258-59.
26
The Court in DeShaney distinguished other cases in which
the State actually took custody of an individual, noting that
when the State holds a person against his will, “the
Constitution imposes upon it a corresponding duty to assume some
responsibility for his safety and general well-being.” Id. at
199-200, 109 S. Ct. at 1005, 103 L. Ed. at 261. Thus, under the
Eighth Amendment’s prohibition against cruel and unusual
punishment, the State is required “to provide adequate medical
care to incarcerated prisoners” because, having deprived an
inmate of his “liberty [to] care for himself, it is only ‘just’
that the State be required to care for him.” Id. at 198-99, 109
S. Ct. at 1005, 103 L. Ed. at 260-61 (alteration in original)
(internal quotation marks omitted) (quoting Estelle v. Gamble,
429 U.S. 97, 103-04, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251, 259-
60 (1976)); see also Farmer v. Brennan, 511 U.S. 825, 833, 114
S. Ct. 1970, 1976-77, 128 L. Ed. 2d 811, 822-23 (1994)
(“[P]rison officials have a duty to protect prisoners from
violence at the hands of other prisoners. . . . [H]aving
stripped them of virtually every means of self-protection and
foreclosed their access to outside aid, the government and its
officials are not free to let the state of nature take its
course.” (alteration, footnote, citations, and internal
quotation marks omitted)). In line with that reasoning, the
Court maintained that, under the Due Process Clause, it is
27
unconstitutional “to confine the involuntarily committed . . .
in unsafe conditions.” DeShaney, supra, 489 U.S. at 199, 109 S.
Ct. at 1005, 103 L. Ed. at 261 (citing Youngberg, supra, 457
U.S. at 315-16, 102 S. Ct. at 2458, 73 L. Ed. 2d at 37). In
these custodial cases, “[t]he affirmative duty to protect arises
. . . from the limitation which [the State] has imposed on [the
individual’s] freedom to act on his own behalf.” Id. at 200,
109 S. Ct. at 1005-06, 103 L. Ed. 2d at 262.
According to the Court, “[i]n the substantive due process
analysis, it is the State’s affirmative act of restraining the
individual’s freedom to act on his own behalf -- through
incarceration, institutionalization, or other similar restraint
of personal liberty” -- that triggers a duty to protect under
the Constitution. Id. at 200, 109 S. Ct. at 1006, 103 L. Ed. 2d
at 262 (emphasis added). The critical point in DeShaney is that
the state actors, albeit bystanders to the cruelties inflicted
on Joshua, did not create the danger that led to his tragic
condition. Id. at 201, 109 S. Ct. at 1006, 103 L. Ed. 2d at
262. The Court reasoned in DeShaney that “[w]hile the State may
have been aware of the dangers that Joshua faced in the free
world, it played no part in their creation, nor did it do
anything to render him any more vulnerable to them.” Ibid.
(emphasis added).
28
 In that language, the Court suggested that when the State
either creates dangers that proximately cause injury or renders
the victim more vulnerable to those dangers, the constitutional
threshold has been met. From that language, the state-created-
danger doctrine was chiseled. Most federal circuit courts now
recognize the state-created-danger doctrine as a basis for a
substantive-due-process violation.9 See Sanford v. Stiles, 456
F.3d 298, 304 (3d Cir. 2006).
The United States Court of Appeals for the Third Circuit
has developed a standard for the application of the state-
created danger doctrine that is faithful to the language of
DeShaney and to the high bar set for proving a substantive-due-
process claim. In a Section 1983 state-created-danger cause of
action, a plaintiff must present evidence to satisfy the
following four-prong test:
9
See, e.g., Pena v. DePrisco, 432 F.3d 98, 107–10 (2d Cir.
2005); Robinson v. Lioi, 536 Fed. Appx. 340, 342 (4th Cir.
2013); Jasinski v. Tyler, 729 F.3d 531, 538 (6th Cir. 2013);
Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993); Forrester
v. Bass, 397 F.3d 1047, 1058 (8th Cir. 2005); Kennedy v. City of
Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006); Uhlrig v.
Harder, 64 F.3d 567, 572 (10th Cir. 1995); Butera v. District of
Columbia, 235 F.3d 637, 652 (D.C. Cir. 2001). But see Lockhart-
Bembery v. Sauro, 498 F.3d 69, 77 (1st Cir. 2007) (“[W]hile this
court and the Supreme Court have discussed the state-created
danger theory, neither has ever found the theory actionable on
the facts given.”); Estate of C.A. v. Castro, 547 Fed. Appx.
621, 626 (5th Cir. 2013) (“‘[T]his Court has consistently
refused to adopt the state-created danger theory.’” (citations
omitted)).
29
(1) “the harm ultimately caused was
foreseeable and fairly direct”;
(2) a state actor acted with a degree of
culpability that shocks the conscience;
(3) a relationship between the state and the
plaintiff existed such that “the plaintiff
was a foreseeable victim of the defendant’s
acts,” or “a member of a discrete class of
persons subjected to the potential harm
brought about by the state’s actions,” as
opposed to a member of the public in
general; and
(4) a state actor affirmatively used his or
her authority in a way that created a danger
to the citizen or that rendered the citizen
more vulnerable to danger than had the state
not acted at all.
[Bright, supra, 443 F.3d at 281 (citations
and footnotes omitted) (elaborating on
earlier test in Kneipp, supra, 95 F.3d at
1208).]
Factors one and three under the Bright test overlap to some
degree. Under factor one, the ultimate harm to the plaintiff
must be “foreseeable” and “direct.” Compare Kneipp, supra, 95
F.3d at 1208 (holding that highly intoxicated woman’s fall down
embankment was foreseeable injury after police separated her
from companion and then abandoned her in freezing weather), and
Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989) (holding
that intoxicated woman was foreseeable victim of sexual assault
after police removed her from car driven by drunken driver and
left her alone in high-crime area), cert. denied, 498 U.S. 938,
111 S. Ct. 341, 112 L. Ed. 2d 305 (1990), with Henry v. City of
30
Erie, 728 F.3d 275, 282 (3d Cir. 2013) (holding that death in
house fire not direct consequence of housing inspector’s
approval of property), and Morse v. Lower Merion Sch. Dist., 132
F.3d 902, 908 (3d Cir. 1997) (holding that teacher’s murder was
not foreseeable consequence of school officials allowing
construction workers to use unlocked back door).
Under factor three, for foreseeability purposes, the
plaintiff must be more than an undifferentiated member of the
general public. Rather, the plaintiff must be a specifically
foreseeable victim or part of a discrete class of foreseeable
victims. Compare Kennedy, supra, 439 F.3d at 1063 (holding
evidence sufficient to find police officer liable in shooting of
victim by neighbor where officer falsely assured victim that her
allegations of sexual abuse against neighbor would not be
disclosed without first warning her), and Kneipp, supra, 95 F.3d
at 1209, with Martinez v. California, 444 U.S. 277, 285, 100 S.
Ct. 553, 559, 62 L. Ed. 2d 481, 489 (1980) (holding that
parolee’s murder of member of general public “too remote a
consequence of the parole officers’ action”), and Mark, supra,
51 F.3d at 1153 (holding that failure to screen volunteer
firefighter who burned home of non-specified member of public
not actionable).
Factor two requires that the conduct of the state actor
must “shock the conscience.” Although intentionally causing an
31
unjustifiable injury or harm will satisfy this standard,
negligently doing so will not. County of Sacramento v. Lewis,
523 U.S. 833, 849, 118 S. Ct. 1708, 1718, 140 L. Ed. 2d 1043,
1059 (1998). In many scenarios falling between these two
extremes, whether conduct is conscience-shocking is a fact-
sensitive analysis and will depend on whether the officials’
conduct is egregious in light of the particular circumstances.
Id. at 850, 118 S. Ct. at 1718, 140 L. Ed. 2d at 1060. Thus,
“[d]eliberate indifference that shocks in one environment may
not be so patently egregious in another.” Ibid. When
institutional officials have “time to make unhurried judgments,
upon the chance for repeated reflection, largely uncomplicated
by the pulls of competing obligations,” deliberate indifference
will suffice for substantive-due-process liability. Id. at 853,
118 S. Ct. at 1720, 140 L. Ed. 2d at 1062. Thus, when “extended
opportunities to do better are teamed with protracted failure
even to care, indifference is truly shocking.” Ibid.
On the other hand, when a police officer confronts
unforeseen circumstances that demand instant judgment, such as
the decision whether to engage in a high-speed car chase, then a
claim of indifference will not likely be shocking given the lack
of opportunity for considered deliberation. Ibid. That is,
“more culpability is required to shock the conscience to the
extent that state actors are required to act promptly and under
32
pressure.” Schieber v. City of Philadelphia, 320 F.3d 409, 419
(3d Cir. 2003).
Factor four requires that a state official affirmatively
use his authority either to create the danger or to render a
person “substantially more vulnerable to injury” than he
otherwise would have been absent state action. Id. at 416. For
liability to attach there must be “affirmative state action” and
not just a failure to protect a person from violence by another.
Bright, supra, 443 F.3d at 284. Accordingly, liability may
attach when an official exercises his authority and creates a
dangerous situation for a citizen or makes the citizen more
vulnerable to danger than had he not intervened. Estate of
Smith v. Marasco, 318 F.3d 497, 507-10 (3d Cir. 2003) (holding
evidence sufficient to support liability where police drove
mentally disturbed man to flee his house into woods, where he
died from exposure); Kneipp, supra, 95 F.3d at 1209, cited in
Bright, supra, 443 F.3d at 282-83; Freeman v. Ferguson, 911 F.2d
52, 54 (8th Cir. 1990) (holding evidence sufficient to support
liability against police chief for directing officers to ignore
pleas for help by estranged wife of chief’s friend, who
afterwards murdered wife); Wood, supra, 879 F.2d at 588.
A state actor will not escape liability by characterizing
his conduct as “inaction” when he has exposed a person to a
danger he created through the exercise of his authority. As
33
Judge Posner aptly stated, “If the state puts a man in a
position of danger from private persons and then fails to
protect him, it will not be heard to say that its role was
merely passive; it is as much an active tortfeasor as if it had
thrown him into a snake pit.” Bowers v. DeVito, 686 F.2d 616,
618 (7th Cir. 1982).
B.
The State draws our attention to Collins, supra, 503 U.S.
115, 112 S. Ct. 1061, 117 L. Ed. 2d 261, arguing that there can
be no liability in the present case because the State has no
constitutional duty to ensure that a workplace is free from
danger. But Collins is very different from the case before us.
In Collins, the Supreme Court held that the “liberty”
protected in the substantive component of the Fourteenth
Amendment’s Due Process Clause does not require a municipality
“to provide its employees with certain minimal levels of
safety.” Id. at 127, 112 S. Ct. at 1069, 117 L. Ed. 2d at 274.
In that case, a sanitation worker was asphyxiated after entering
a manhole to clear a sewer line. Id. at 117, 112 S. Ct. at
1064, 117 L. Ed. 2d at 268. In a Section 1983 action, his widow
asserted that the city violated his “‘constitutional right to be
free from unreasonable risks of harm’” by not warning him of or
training or equipping him for “the dangers of working in sewer
lines and manholes.” Ibid.
34
Significantly, the Court noted that the worker’s widow did
not “allege that his supervisor instructed him to go into the
sewer when the supervisor knew or should have known that there
was a significant risk that he would be injured” but instead
generally alleged “that the city deprived him of life and
liberty by failing to provide a reasonably safe work
environment.” Id. at 125-26, 112 S. Ct. at 1069, 117 L. Ed. 2d
at 273. The Court was “not persuaded that the city’s alleged
failure to train its employees, or to warn them about known
risks of harm, was . . . arbitrary, or conscience shocking, in a
constitutional sense.” Id. at 128, 112 S. Ct. at 1070, 117 L.
Ed. 2d at 275 (emphasis added). Rather the Court characterized
the widow’s claim as “analogous to a fairly typical state-law
tort claim” involving breach of duty of care. Ibid.
In deciding Collins, the Court stressed that “[t]he
employment relationship . . . is not of controlling
significance,” and that neither the worker’s status as a
government employee nor the Court of Appeals’s suggestion that
deliberate indifference did not equate to “‘abuse of
governmental power’” was a sufficient reason for the dismissal
of the Section 1983 claim. Id. at 119-20, 112 S. Ct. at 1065-
66, 117 L. Ed. 2d at 269-70. Ultimately, the Supreme Court
concluded that the worker’s widow did not allege or establish an
35
arbitrary deprivation of liberty. Id. at 129-30, 112 S. Ct. at
1071, 117 L. Ed. 2d at 276.
Collins clearly demonstrates that Gormley’s status as a
state employee is not dispositive of her right to pursue a
Section 1983 claim.10 Moreover, Gormley has arguably presented
evidence of not merely unreasonable but conscience-shocking
dangerous conditions in the Ancora day room where Gormley was
compelled to interview her client. However, our analysis does
not end there because Gormley must establish that the summary-
judgment record meets the Bright factors for the state-created
danger doctrine.
10
At the summary-judgment hearing, defendants did not argue that
the Workers’ Compensation Act barred Gormley’s federal and state
civil-rights claims. Because “issues not raised below will
ordinarily not be considered on appeal,” N.J. Div. of Youth &
Fam. Servs. v. M.C. III, 201 N.J. 328, 339 (2010), we therefore
do not address this issue. It is worth noting, however, that it
is questionable whether the workers’ compensation bar -– a state
statutory immunity -– can overcome a federal civil-rights
claim. See Martinez, supra, 444 U.S. at 284 n.8, 100 S. Ct. at
558 n.8, 62 L. Ed. 2d at 488 n.8 (“Conduct by persons acting
under color of state law which is wrongful under 42 U.S.C. §
1983 . . . cannot be immunized by state law.” (citation and
internal quotation marks omitted)).
Moreover, we do not have the benefit of a record or argument
on which to determine whether the alleged federal and state
civil-rights violations constitute an “intentional wrong”
sufficient to overcome the workers’ compensation bar. See
Laidlow v. Hariton Mach. Co., 170 N.J. 602, 617 (2002) (barring
third-party suit against employer unless plaintiff can show
“intentional wrong,” which “encompass[es] acts that the employer
knows are substantially certain to produce injury even though,
strictly speaking, the employer does not will that result”).
36
A review of a case comparable to the present one will help
inform our analysis of the state-created-danger doctrine. In
L.W. v. Grubbs, the United States Court of Appeals for the Ninth
Circuit reinstated a Section 1983 cause of action by a prison
nurse who claimed that her defendant prison supervisors, after
leading her to believe that she would not be left alone with
violent sexual offenders, then placed her “in unguarded
proximity with an inmate whose record they knew included attacks
upon women.” 974 F.2d 119, 120-21 (9th Cir. 1992), cert.
denied, 508 U.S. 951, 113 S. Ct. 2442, 124 L. Ed. 2d 660 (1993).
The nurse was “raped and terrorized” by the inmate. Ibid. The
Ninth Circuit rejected defendants’ arguments that the Section
1983 claim was infirm because the nurse “was not in custody” or
because of her “status as an employee.” Id. at 120-21. The
court also distinguished Collins, noting that the nurse in L.W.
alleged not just a general right to a reasonably safe workplace
but that “the [d]efendants took affirmative steps to place her
at significant risk, and that they knew of the risks.” Id. at
122.
VI.
A.
We now apply the Bright state-created-danger test to the
summary-judgment record before us. First, we conclude that
37
Gormley was a member of a discrete class of victims subject to
the foreseeable harms set in motion by defendants. Cf. Bright,
supra, 443 F.3d at 281. Ancora was a state psychiatric facility
controlled and supervised by defendants, particularly Ancora’s
Chief Executive Officer, defendant Wood-El. Many of the
residents of Ancora were involuntarily committed because of
mental illnesses that rendered them a danger to themselves or
others. Within the confines of Ancora -- a locked facility --
hospital officials controlled and restrained the movements of
residents and visitors. Cf. DeShaney, supra, 489 U.S. at 200,
109 S. Ct. at 1006, 103 L. Ed. 2d at 262 (holding that
substantive due process is implicated when the State acts
affirmatively to “restrain[] the individual’s freedom to act on
his own behalf -- through incarceration, institutionalization,
or other similar restraint of personal liberty” (emphasis
added)). Despite the control defendants exercised over Ancora,
between October 2003 and December 2005, patients committed 3846
assaults. Of that number, 810 of the assault victims were
visitors and staff, resulting in 200 injuries. Professionals,
such as lawyers and psychiatrists, were required to meet with
their clients and patients in the ward’s day room, where thirty-
five to forty psychiatric residents would mill about. Some of
those residents were psychotic, “going off” and “screaming” in a
scene described as “bedlam.” Fights frequently broke out in the
38
day room, and attorneys and psychiatrists often became the
victims of assaults committed by patients. Three staff
psychiatrists testified that they had been the victims of
patient assaults. Gormley’s supervisor at the Office of the
Public Advocate was attacked by patients three times at Ancora
before the assault on Gormley. The potential for violence was
so palpable that Gormley positioned her chair with her back to
the wall to see from what direction an attack might come.
What is striking is not that the brutal assault on Gormley
in the ever-noisy and tumultuous day room was an extraordinary
event but that it was rather quite ordinary. Assaults in the
day room were not unexpected but fairly foreseeable. Gormley
was a member of a discrete class of foreseeable victims --
professionals required to meet in the volatile day room with
patients.
As made clear in Collins and L.W., Gormley’s status as a
state employee does not render her powerless to seek vindication
of her constitutional rights. See Collins, supra, 503 U.S. at
119, 112 S. Ct. at 1065, 117 L. Ed. 2d at 269 (“The employment
relationship . . . is not of controlling significance.”).
We also conclude, viewing the evidence in the light most
favorable to Gormley, that defendants, particularly Wood-El,
affirmatively used their authority to create the danger that
made Gormley more vulnerable to the assault. Gormley was not
39
acting in the “free world” but rather in a locked institutional
environment over which defendants exercised total control,
including control over where Gormley met with her client, B.R.
Cf. DeShaney, supra, 489 U.S. at 201, 109 S. Ct. at 1006, 103 L.
Ed. 2d at 262. B.R. had a constitutional right to assigned
counsel, S.L., supra, 94 N.J. at 142, and Gormley was designated
by the Office of the Public Advocate to be her counsel. Gormley
could not meet with B.R. off-site in her own office. She had to
see B.R. at Ancora and submit to its regulations. Meetings
between family members and patients were conducted in quiet,
private rooms supervised by staff. Attorneys interviewing their
clients for constitutionally required commitment hearings,
however, were relegated to the explosive day rooms, where no
security guards were posted.
Defendants not only controlled and restrained Gormley’s
physical movements, but they also possessed knowledge of the
special dangers that B.R. might pose to the unsuspecting
attorney, who was meeting her client for the first time. The
institution assigned B.R. Continuous Visual Observation status
because of the particular safety risk the patient posed to
herself and others. A staff member, who presumably knew of
B.R.’s CVO status, brought her to the day room -- brought her in
contact with Gormley. But no one told Gormley of the
heightened-risk assessment. When Gormley sat catty-corner to
40
B.R. because the din in the day room made a confidential,
lawyer-client conversation impossible -- that was the
environment defendants had created, an environment conducive to
the many assaults that frequently occurred in the day room.
Having brought the dangerous patient together with the attorney
in an unsecured setting, Gormley literally was left to fend for
herself when she was viciously attacked. Cf. Bowers, supra, 686
F.2d at 618 (“If the state puts a man in a position of danger
from private persons . . . it is as much an active tortfeasor as
if it had thrown him into a snake pit.”). Gormley’s injuries
were not a result of defendants’ inaction, but the result of
their protocols, the affirmative steps that created an
institutional environment in which patients could freely attack
their attorneys and psychiatrists.
Last, under Bright’s shock-the-conscience standard, Gormley
has presented sufficient evidence to go forward on her claim
that defendants acted with deliberate indifference to the
foreseeable dangers threatening the physical safety of attorneys
constitutionally assigned to represent committed patients. The
expert testimony presented suggested that the level of violence
at Ancora was unique to that institution. In the two years
before B.R.’s assaultive conduct, defendants kept records of
thousands of assaults committed by patients at Ancora, including
hundreds of assaults committed against staff and visitors, such
41
as Gormley. No one can argue that defendants did not have time
to deliberate over those dismal statistics. Defendants are not
called to answer because of a split-second decision made in the
heat of some immediate crisis. Giving Gormley the benefit of
the most favorable evidence and inferences, defendants executed
a policy, over a course of years, in complete disregard of the
known danger that mentally disturbed patients were attacking
professionals, such as Gormley, in the ward’s day room. The
Constitution required that Gormley or some other attorney
represent B.R. at her upcoming commitment hearing. Gormley was
totally dependent on Ancora to provide for her safety while she
was in the facility. Cf. Youngberg, supra, 457 U.S. at 324, 102
S. Ct. at 2462, 73 L. Ed. 2d at 42 (noting that State had
“unquestioned duty to provide reasonable safety for all . . .
personnel within the [psychiatric] institution”). Even after
the assault on Gormley, defendant Wood-El stated that she was
not required to make any changes in the manner in which
“attorney/patient visits were handled.” That expression of
complacency with the ongoing violence committed against
attorneys at Ancora might be viewed by a jury as shocking by
itself.
When the evidence is viewed in the light most favorable to
Gormley, as it must be at this stage, we conclude that a
rational jury could find that all four factors in the Bright
42
test have been met and that defendants therefore violated
Gormley’s substantive-due-process right to be free from state-
created dangers under the Fourteenth Amendment of the United
States Constitution.11
B.
A brief response to the dissent is in order, keeping in
mind that the facts must be viewed in the light most favorable
to Gormley. What makes the egregious -- and hopefully rare --
facts in this case conscience-shocking is the totality of the
circumstances -- a standard commonly used in our constitutional
jurisprudence. See, e.g., State v. Yohnnson, 204 N.J. 43, 64
(2010) (using totality of circumstances to determine whether
defendant’s confession involved knowing, voluntary, and
intelligent waiver of Fifth Amendment right against self-
incrimination); State v. Pineiro, 181 N.J. 13, 22 (2004) (using
11
We do not address Gormley’s argument that her “special-
relationship” with Ancora is a separate basis for liability
because, in the context of the facts before us, that
relationship is subsumed within state-created-danger liability.
Indeed, some courts have questioned whether there is a
distinction between special-relationship and state-created-
danger liability. See Paine v. Cason, 678 F.3d 500, 510 (7th
Cir. 2012); Ketchum v. County of Alameda, 811 F.2d 1243, 1247
(9th Cir. 1987); Estate of Gilmore v. Buckley, 787 F.2d 714, 722
(1st Cir.), cert. denied, 479 U.S. 882, 107 S. Ct. 270, 93 L.
Ed. 2d 247 (1986). But see Kneipp, 95 F.3d at 1209 n.22
(viewing “special relationship” and state-created danger as
distinct). At least for our purposes here, we do not have to
decide whether those doctrines are different.
43
totality of circumstances to determine whether seizure
reasonable under Fourth Amendment).
We cannot look at individual factors in isolation, as does
the dissent. No singular brushstroke reveals the whole picture.
This is a case not just about statistical evidence of a
staggering number of assaults that occurred in a psychiatric
hospital, although those statistics certainly suggested that
violence was a predictable and accepted fact of life at Ancora.
Cf. Brown v. Plata, 563 U.S. ___, ___ n.4, 131 S. Ct. 1910, 1926
n.4, 179 L. Ed. 2d 969, 984 n.4 (2011) (discussing statistical
evidence used to find that overcrowded prison conditions
violated constitutional rights). This is a case with detailed
eyewitness testimony from psychiatrists and lawyers who were
physically attacked and injured while carrying out their
professional duties. The violence occurred in a hospital where
defendants controlled every aspect of life, including the
physical movements of both patients and professionals, and where
and how they met. Gormley had no right to move freely at
Ancora; she was not an agent in the free world. Officials at
Ancora were not just passive observers but -- giving Gormley the
benefit of all reasonable inferences -- the architects of an
environment in which anarchy reigned in the day rooms of Ancora.
All of these factors are part of the tableau suggesting that
44
defendants acted with deliberate indifference to the violence
that threatened lawyers, such as Gormley.
Based on the factual record here, our finding that the
conduct has crossed a constitutional threshold will not open a
floodgate of litigation against public entities. The level of
violence at Ancora was unique among psychiatric hospitals, and
the dissent has cited to no comparable case involving other
public facilities. No one has intimated, for example, that it
is commonplace in schools for students and teachers to be
physically attacked daily while their administrators stand about
and look on indifferently to their physical safety.
Additionally, Congress passed the Federal Civil Rights Act
to provide remedies not available under state law. See Haywood
v. Drown, 556 U.S. 729, 741-42, 129 S. Ct. 2108, 2118, 173 L.
Ed. 2d 920, 932 (2009) (holding that § 1983 actions may be
brought in state courts against correctional officers for
constitutional violations, notwithstanding state’s explicit
statutory bar on such actions). It makes no difference that a
Section 1983 action may provide a different standard of proof or
relief than in an action brought under the New Jersey Tort
Claims Act, N.J.S.A. 59:1-1 to 59:12-3. State courts are
compelled by the Supremacy Clause, U.S. Const. art VI, cl. 2, to
apply federal law. See Felder v. Casey, 487 U.S. 131, 138, 108
S. Ct. 2302, 2307, 101 L. Ed. 2d 123, 137-38 (1988); Greenway
45
Dev. Co. v. Borough of Paramus, 163 N.J. 546, 558 (2000) (“A
public entity may not use a state statute, such as the [Tort
Claims Act], to abrogate a claimant’s constitutional rights.”).
We adopt the Bright test for conscience-shocking behavior,
including its deliberate-indifference component. The dissent
accepts this standard as well. Post at ___ (slip op. at 6-7).
The test is a high bar to vault, and one common in substantive-
due-process jurisprudence. See, e.g., Lewis, supra, 523 U.S. at
850, 118 S. Ct. at 1718, 140 L. Ed. 2d at 1060; Collins, supra,
503 U.S. at 128, 112 S. Ct. at 1070, 117 L. Ed. 2d at 275;
United States v. Salerno, 481 U.S. 739, 746, 107 S. Ct. 2095,
2101, 95 L. Ed. 2d 697, 708 (1987) (“So-called ‘substantive due
process’ prevents the government from engaging in conduct that
‘shocks the conscience’ . . . .” (citations omitted)). That
standard, moreover, is higher than the negligence, or even gross
negligence, standard under which public officials and employees
may be found liable in Tort Claims Act cases. See L.W. v.
Grubbs (II), 92 F.3d 894, 900 (9th Cir. 1996) (dismissing
plaintiff’s claims where, after remand for trial, jury found
only gross negligence, rather than requisite deliberate
indifference). Application of the Federal and State Civil
Rights Acts -- and through them the substantive-due-process
guarantee of the Fourteenth Amendment -- is not subversive of
the Tort Claims Act, as the dissent suggests. The drafters of
46
the Tort Claims Act undoubtedly intended it to co-exist with
federal law.
For these reasons we part ways with the dissent.
VII.
A.
We next consider whether the Appellate Division properly
dismissed the civil-rights claims against defendants on the
ground of qualified immunity.
Qualified immunity is a doctrine that shields government
officials from a suit for civil damages when “their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L.
Ed. 2d 396, 410 (1982). Qualified immunity “is an immunity from
suit,” the right to avoid the rigors and costs of trial.
Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 2815,
86 L. Ed. 2d 411, 425 (1985) (emphasis omitted). Whether an
official is covered by qualified immunity is a matter of law to
be decided by a court, “preferably on a properly supported
motion for summary judgment or dismissal.” Wildoner v. Borough
of Ramsey, 162 N.J. 375, 387 (2000); see also Pearson v.
Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815, 172 L. Ed. 2d
565, 573 (2009). “Qualified immunity balances two important
47
interests -- the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they
perform their duties reasonably.” Pearson, supra, 555 U.S. at
231, 129 S. Ct. at 815, 172 L. Ed. 2d at 573.
For a right to be clearly established, “[t]he contours of
the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039,
97 L. Ed. 2d 523, 531 (1987). The Third Circuit has “‘adopted a
broad view of what constitutes an established right of which a
reasonable person would have known.’” Stoneking v. Bradford
Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989) (quoting
Sourbeer v. Robinson, 791 F.2d 1094, 1103 (3d Cir. 1986), cert.
denied, 483 U.S. 1032, 107 S. Ct. 3276, 97 L. Ed. 2d 779
(1987)). Officials are expected to “‘apply general, well-
developed legal principles,’” in “analogous factual situations.”
Ibid. (citations omitted). The Third Circuit “does not require
‘relatively strict factual identity’ between applicable
precedent and the case at issue.” Ibid. (citation omitted); see
also Ryan v. Burlington Cnty., 860 F.2d 1199, 1208-09 (3d Cir.
1988) (“‘Although officials need not predic[t] the future course
of constitutional law, they are required to relate established
law to analogous factual settings.’” (alteration in original)
48
(internal quotation marks omitted) (quoting People of Three Mile
Island v. Nuclear Regulatory Comm’rs, 747 F.2d 139, 144 (3d Cir.
1984))), cert. denied, 490 U.S. 1020, 109 S. Ct. 1745, 104 L.
Ed. 2d 182 (1989).
B.
We conclude that the right to be free from state-created
dangers was clearly established at the time of the assault on
Gormley in 2005. Since DeShaney, most federal circuit courts of
appeals have adopted the state-created danger doctrine,
including the Third Circuit in Kneipp in 1996. Significantly,
in 1992, the Ninth Circuit applied the doctrine to an
institutional setting analogous to Ancora. L.W., supra, 974
F.2d at 120 (female nurse assigned to work alone with prison
inmate with known history of violence against women). Although
this Court has yet to speak to the issue, in 2003 the Appellate
Division in Gonzales, supra, adopted Kneipp’s formulation of the
state-created-danger doctrine, 357 N.J. Super. at 347, and, in
2004, reaffirmed state-created danger as a theory of liability,
Estate of Strumph v. Ventura, 369 N.J. Super. 516, 525-26 (App.
Div.), certif. denied, 181 N.J. 546 (2004). The decisional law
of the Appellate Division is not only binding on our trial
courts, but is an expression of the law of our State unless the
New Jersey Supreme Court says otherwise. See Brundage v. Estate
of Carambio, 195 N.J. 575, 593 (2008); see also Pressler &
49
Verniero, Current N.J. Court Rules, comment 3.1 on R. 1:36-3
(2014).
The contours of the state-created-danger doctrine were
clearly established at the time of the attack on Lorraine
Gormley in Ancora’s day room. We hold that, given the history
of violence at Ancora and the requirement that attorneys meet
with their clients in crowded and chaotic day rooms populated by
patients who were mentally ill and dangerous, reasonable
hospital administrators knew or should have known that the
conditions they created -- fraught with violence -- breached the
substantive-due-process guarantee of the United States
Constitution. This is not a case in which officials acting in
good faith had to engage in perilous predictions about the
application of the law or the foreseeable harm that might flow
from their conduct.
We therefore reverse the Appellate Division, which
dismissed the federal civil-rights claim on qualified-immunity
grounds.
VIII.
Last, we add that the Appellate Division erred to the
extent that it barred Gormley’s claim for injunctive relief
based on qualified immunity. First, we disagree with
defendants’ argument that Gormley waived her injunctive-relief
50
claim by not asserting it before the Appellate Division.
Gormley succeeded before the trial court, and her injunctive
relief claim was a live claim. She had no reason to bring the
matter before the Appellate Division. Therefore, the doctrine
of waiver has no applicability here.
More importantly, qualified immunity does not bar actions
for injunctive relief. See, e.g., Wood v. Strickland, 420 U.S.
308, 314 n.6, 95 S. Ct. 992, 997 n.6, 43 L. Ed. 2d 214, 221 n.6
(1975) (“[I]mmunity from damages does not ordinarily bar
equitable relief as well.”), abrogated in part on other grounds
by Harlow, supra, 457 U.S. at 817-18, 102 S. Ct. at 2738, 73 L.
Ed. 2d at 410; Hill v. Borough of Kutztown, 455 F.3d 225, 244
(3d Cir. 2006) (“[T]he defense of qualified immunity is
available only for damages claims -- not for claims requesting
prospective injunctive relief.”); Presbyterian Church (U.S.A.)
v. United States, 870 F.2d 518, 527 (9th Cir. 1989) (“Qualified
immunity is an affirmative defense to damage liability; it does
not bar actions for declaratory or injunctive relief.”). As
such, Gormley would have had the right to pursue injunctive
relief even had qualified immunity been granted to defendants.
IX.
We reverse the judgment of the Appellate Division granting
qualified immunity to defendants and dismissing Gormley’s
51
federal civil-rights claims. We affirm the judgment of the
Appellate Division based on the summary-judgment record, finding
that the danger created by defendants that resulted in
foreseeable injuries to Gormley violated the substantive-due-
process guarantee of the United States Constitution. We
determine here only that, viewing the evidence in the light most
favorable to Gormley, the trial court properly denied
defendants’ motion for summary judgment.12 We do not express any
opinion on the merits of her claims, which ultimately a jury
will resolve. We remand to the Law Division for further
proceedings consistent with this opinion.
CHIEF JUSTICE RABNER and JUDGE RODRÍGUEZ (temporarily
assigned) join in JUSTICE ALBIN’s opinion. JUSTICE LaVECCHIA
filed a separate, dissenting opinion, in which JUSTICE PATTERSON
joins. JUDGE CUFF (temporarily assigned) did not participate.
12
On the record before us, defendants moved collectively for
relief and did not differentiate the strength of Gormley’s
evidence against each individual defendant.
52
SUPREME COURT OF NEW JERSEY
A-101/106 September Term 2011
069717
LORRAINE GORMLEY,
Plaintiff-Appellate
and Cross-Respondent,
v.
LATANYA WOOD-EL, Chief
Executive Officer, Ancora
Psychiatric Hospital;
JENNIFER VELEZ, Current
Commissioner and WILLIAM
WALDMAN, Former Commissioner,
New Jersey Department of
Human Services; KEVIN
MARTONE, Current Assistant
Commissioner; and ALAN G.
KAUFMAN, Former Director,
Division of Mental Health
Services, Department of Human
Services,
Defendants-Respondents
and Cross-Appellants.
JUSTICE LaVECCHIA, dissenting.
Plaintiff, Lorraine Gormley, a Public Defender lawyer for
involuntarily committed psychiatric patients, was attacked by a
client, B.R., in a community “day room” in Ancora Psychiatric
Hospital while meeting the newly committed woman for the first
time. The unprovoked attack caused plaintiff serious injuries.
Although plaintiff sought relief on a number of theories, in
this appeal we consider her claim against State Department of
Human Services officials and Ancora’s past and present
1
administrators based on the theory that those defendants
violated her substantive due process right to be free from
state-created danger. Through that alleged due process
violation, plaintiff seeks civil damages under 42 U.S.C.A.
§ 1983 (Section 1983). Although prior to argument before this
Court plaintiff focused on her Section 1983 claim, she invokes
the same reasoning to support her parallel claim for civil
damages under the New Jersey Civil Rights Act (CRA), N.J.S.A.
10:6-1 to -2. Plaintiff also seeks injunctive relief under both
statutes.
As the majority acknowledges, neither Section 1983 nor the
CRA confers affirmative rights upon plaintiff. Therefore,
plaintiff must establish a colorable substantive due process
constitutional deprivation. I cannot agree with the majority’s
conclusion that a substantive due process state-created-danger
claim has been presented in this matter. Moreover, even if I
were to agree with the majority that a debatable claim has been
set forth, I cannot conclude that such a claim was clearly
established at the time plaintiff suffered her injuries. Thus,
I would affirm the Appellate Division’s judgment that found
applicable the doctrine of qualified immunity, which shields the
individual defendants from personal civil damages. I agree with
the majority that claims for injunctive relief are not barred by
the doctrine of qualified immunity. Nonetheless, for the
2
reasons that follow, I respectfully dissent from the judgment of
the Court.
I.
It is important at the outset to recognize that plaintiff
was injured by a private actor, not a state actor. Generally, a
state does not violate the Due Process Clause of the Fourteenth
Amendment if it fails to protect its citizen from private
violence. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489
U.S. 189, 195-96, 109 S. Ct. 998, 1003, 103 L. Ed. 2d 249, 258-
59 (1989). In DeShaney, a case that involved violence by a
private actor,1 the United States Supreme Court stated that “the
Due Process Clauses generally confer no affirmative right to
governmental aid, even where such aid may be necessary to secure
life, liberty, or property interests of which the government
itself may not deprive the individual.” Id. at 196, 109 S. Ct.
at 1003, 103 L. Ed. 2d at 259. Having no obligation to provide
such services, a state cannot be held liable for injuries that
would have been avoided if such protection had been afforded.
Id. at 196-97, 109 S. Ct. at 1003-04, 103 L. Ed. 2d at 259.
1
In DeShaney, supra, a young boy was severely beaten by his
father, resulting in permanent and substantial brain damage.
489 U.S. at 192-93, 109 S. Ct. at 1001-02, 103 L. Ed. 2d at 256-
57. Prior to the incident that caused the brain damage, the
county department of social services had failed to remove the
boy from his father’s custody for two years, despite the boy’s
repeated hospitalizations and department case workers’ recorded
suspicions of child abuse. Ibid.
3
However, an exception for persons in a “special relationship”
with the state was noted.
The Supreme Court allowed for the viability of a Section
1983 claim based on a violation of substantive due process when
a special relationship arises that imposes on the state
affirmative duties of care and protection, such as when the
state takes a person into custody against his will. By way of
example, the Supreme Court discussed a duty to provide medical
services to involuntarily committed mental patients, to provide
medical services to people injured in the process of being
arrested, and perhaps to avoid moving a child in state custody
into an abusive foster home. Id. at 199-201 & n.9, 109 S. Ct.
at 1005-06 & n.9, 103 L. Ed. 2d at 261-63 & n.9. That “special
relationship” exception has spawned numerous cases in which
plaintiffs have sought to impose Section 1983 liability on the
basis of alleged violations of substantive due process. See,
e.g., Henry A. v. Willden, 678 F.3d 991, 998-1001 (9th Cir.
2012); Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000) (en
banc); Ying Jing Gan v. City of New York, 996 F.2d 522, 534 (2d
Cir. 1993). It provides the basis for one of plaintiff’s claims
in this case.
A comment by the Supreme Court provides the genesis for a
second theory of Section 1983 liability on the basis of an
alleged substantive due process violation. This “state-created
4
danger” exception arises from the DeShaney Court’s statement
that “[w]hile the State may have been aware of the dangers that
[the plaintiff] faced in the free world, it played no part in
their creation, nor did it do anything to render [the plaintiff]
more vulnerable to them.” 489 U.S. at 201, 109 S. Ct. at 1006,
103 L. Ed. 2d at 262. That observation has been the basis on
which a state-created-danger theory of liability has been
accepted by several Circuit Courts of Appeals. See, e.g.,
Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006),
cert. denied, 549 U.S. 1264, 127 S. Ct. 1483, 167 L. Ed. 2d 228
(2007); Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996);
Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir.), cert. denied,
510 U.S. 947, 114 S. Ct. 389, 126 L. Ed. 2d 337 (1993); Dwares
v. City of New York, 985 F.2d 94, 98-99 (2d Cir. 1993); Freeman
v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990). Although the
state-created-danger theory has not been adopted affirmatively
by the United States Supreme Court, that Court’s comment in
DeShaney has been regarded as suggesting, by inference, the
possibility of such cause of action, as the majority notes. See
ante at ___ n.9 (slip op. at 28-29).
The Court of Appeals for the Third Circuit endorsed a
state-created danger cause of action in Kneipp, and refined the
elements for such an action in Bright. As established in
Bright, supra, a state-created-danger cause of action arises
5
when:
(1) the harm ultimately caused was
foreseeable and fairly direct;
(2) a state actor acted with a degree of
culpability that shocks the conscience;
(3) a relationship between the state and
the plaintiff existed such that the
plaintiff was a foreseeable victim of the
defendant’s acts, or a member of a discrete
class of persons subjected to the potential
harm brought about by the state’s actions,
as opposed to a member of the public in
general; and
(4) a state actor affirmatively used his or
her authority in a way that created a danger
to the citizen or that rendered the citizen
more vulnerable to danger than had the state
not acted at all.
[443 F.3d at 281 (internal quotation marks
and footnotes omitted).]
Like my colleagues in the majority, I accept that a Section
1983 claim may be advanced based on an alleged violation of
substantive due process on state-created-danger and special
relationship theories of liability, notwithstanding that the
United States Supreme Court has yet to uphold the state-created-
danger theory in any setting. Indeed, decisions of our
Appellate Division already have signaled a willingness to employ
the state-created-danger theory when and if an appropriate set
of circumstances is presented, although no Appellate Division
panel so far has found such a set of facts to exist. See Estate
of Strumph v. Ventura, 369 N.J. Super. 516, 525-26 (App. Div.),
6
certif. denied, 181 N.J. 546 (2004); Gonzales v. City of Camden,
357 N.J. Super. 339, 347 (App. Div. 2003). I would be prepared
to do the same for state-created danger, provided that the
governing analysis conforms to the Bright test.
The Bright formulation employed by the Court of Appeals for
the Third Circuit has much to commend it. It requires an
affirmative act or acts by the state that created the danger or
rendered the plaintiff more vulnerable. Bright, supra, 443 F.3d
at 282-84. It is consonant with the Supreme Court’s decision in
DeShaney to find that the Constitution forbids state actors from
affirmatively acting with willful disregard for a specific risk
to an individual’s safety in a way that creates a foreseeable,
direct risk of harm to the plaintiff. Importantly, it requires
that overall the government’s action or inaction must shock the
conscience. Id. at 281 (citing Cnty. of Sacramento v. Lewis,
523 U.S. 833, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)). The
fact that state defendants simply “stood by,” or that they could
have “done more” in a particular set of circumstances, is
insufficient without more to meet Bright’s “shocks the
conscience” requirement for culpability. The Bright standard
calls for affirmative acts. Id. at 282-84. Acts of omission
must be particularly scrutinized for egregiousness, which must
include a showing of deliberate indifference and disregard for
constitutional rights. See Henderson v. Gunther, 931 P.2d 1150,
7
1161 (Colo. 1997).
II.
In this appeal, plaintiff argues two theories of liability
under Section 1983: special relationship and state-created
danger.
Despite plaintiff’s recognition that those theories of
liability involve different standards, the majority melds the
two theories into a single -- and novel -- cause of action. See
ante at ___ n.11 (slip op. at 43). I cannot adopt that
analytical framework. The two theories are distinct and should
be considered separately.
A.
In respect of special relationship, I disagree that, as a
visitor to Ancora, a state psychiatric hospital, plaintiff held
a status equivalent to that of the institutionalized persons
residing in that hospital. Persons committed to hospitalization
are committed to the State’s care. Although plaintiff is a
lawyer whose professional obligation necessitated a consultative
visit with her client, she shares the status of any family
member, friend, or privately retained attorney or medical
professional who enters the facility to visit a committed
patient. As such, she is far from the equivalent of a patient
committed to the custody of the psychiatric institution against
her will. See DeShaney, supra, 489 U.S. at 199, 109 S. Ct. at
8
1005, 103 L. Ed. 2d at 261. No case cited by any party or the
majority -- from any court -- supports the notion that plaintiff
is somehow equivalent to a committed patient to whom the State
owes a special relationship.
Special relationship cases hinge on custody or a similar
deprivation of liberty. See, e.g., Henderson, supra, 931 P.2d
at 1157-58 (citing cases refusing to extend special relationship
to circumstances beyond incapacitation or institutionalization).
Even if plaintiff’s presence in a state psychiatric hospital
effected a minimal restraint of liberty, I would not find it
sufficient to create a special relationship. As the Third
Circuit has emphasized, DeShaney uses a test for “physical
custody” when determining whether a plaintiff has a special
relationship with the state. See Ye v. United States, 484 F.3d
634, 635, 639 (3d Cir. 2007), cert. denied, 552 U.S. 1099, 128
S. Ct. 905, 169 L. Ed. 2d 729 (2008). The closest plaintiff can
come to citing an analogous case is the district court decision
in Glaspy v. Malicoat, 134 F. Supp. 2d 890 (W.D. Mich. 2001),
but that case is inapposite. In Glaspy, a prison visitor case,
prison officials took direct, affirmative acts toward the
plaintiff (a visiting father), refusing his repeated requests to
access a restroom to urinate. Id. at 892-93. As a result, the
plaintiff suffered pain while waiting to use the restroom, and
ultimately suffered the humiliation of urinating in his pants.
9
Ibid.
That district court case is distinguishable from this case
because no direct affirmative act was taken toward plaintiff by
state officials. The fact that Ancora’s general visitation
policy provided for plaintiff and certain other visitors to meet
with patients anywhere on the ward generally, or in the
community day room where patients congregated, does not, in my
view, meet the level of control over plaintiff’s personal
behavior generally that gives rise to a special relationship.
State actors exerted no direct control over plaintiff’s
movement, seating, or actions within the day room in which this
attack took place. Nothing in this case comes close to
resembling the direct assertion of control over the prison
visitor that was central to the court’s decision in Glaspy. See
id. at 895. In sum, because plaintiff was never under custodial
control in any sense that fits the DeShaney Court’s test for
physical custody, I find it impossible to conclude that, on
these facts, plaintiff presents a case of special relationship
liability.
B.
The analysis for state-created danger requires a different
examination, specifically one that entails use of the four
Bright factors:
(1) the harm ultimately caused was
10
foreseeable and fairly direct;
(2) a state actor acted with a degree of
culpability that shocks the conscience;
(3) a relationship between the state and the
plaintiff existed such that the plaintiff
was a foreseeable victim of the defendant’s
acts, or a member of a discrete class of
persons subjected to the potential harm
brought about by the state’s actions, as
opposed to a member of the public in
general; and
(4) a state actor affirmatively used his or
her authority in a way that created a danger
to the citizen or that rendered the citizen
more vulnerable to danger than had the state
not acted at all.
[Bright, supra, 443 F.3d at 281 (internal
quotation marks omitted).]
In Ye, supra, the Third Circuit explained that the fourth factor
can be broken down further, as follows:
(1) a state actor exercised his or her
authority,
(2) the state actor took an affirmative
action, and
(3) this act created a danger to the citizen
or rendered the citizen more vulnerable to
danger than if the state had not acted at
all.
[484 F.3d at 638-39.]
That is the test that I would apply to plaintiff’s claim. It is
a rigorous test and, for me, it is far from clear that plaintiff
has advanced a cause of action that is even debatable.
That plaintiff was subjected to serious injuries in the
11
course of performing her professional obligation is deplorable.
But the sympathy to which she is entitled does not help fashion
a constitutional rule of law in this matter that promotes
desirable public policy and predictability in application.
Indeed, I believe that, by letting plaintiff’s claim go to the
jury, the majority effectively embraces extensive Section 1983
state liability on the basis of state-created danger to persons
visiting inpatients in state psychiatric hospitals.2 The
parameters of the liability created by the majority’s holding
are unclear. Nevertheless, that holding will impact numerous
state, county, and municipal operational settings, such as
schools, facilities for the developmentally disabled, and
prisons, where persons are in the care and custody of
governmental actors for all or substantial portions of most
days.
2
The majority also fashions on these facts a new CRA claim based
on state-created danger. Circuit Courts reflect no consensus on
the precise elements of a federal state-created-danger claim
because the United States Supreme Court has not yet recognized
the action. See generally Jeremy Daniel Kernodle, Note,
Policing the Police: Clarifying the Test for Holding the
Government Liable under 42 U.S.C. § 1983 and the State-Created
Danger Theory, 54 Vand. L. Rev. 165 (2001). However, our Court
has locked onto this case as a basis for establishing this new
state-created-danger claim that will have the capacity to
greatly expand tort-like liability for governmental actors. See
Lewis, supra, 523 U.S. at 848, 118 S. Ct. at 1718, 140 L. Ed. 2d
at 1059 (“[T]he Fourteenth Amendment is not a ‘font of tort law
to be superimposed upon whatever systems may already be
administered by the States . . . .’” (quoting Paul v. Davis, 424
U.S. 693, 701, 96 S. Ct. 1155, 1160, 47 L. Ed. 2d 405, 413
(1976))).
12
Respectfully, I disagree with the majority as to whether
any of the state officials’ actions in this case were
affirmative acts sufficient to “shock the conscience” under the
Bright test. The majority gives great weight to the State’s
failure to specifically inform plaintiff about B.R.’s watch
status.3 However, the failure to inform plaintiff of the
supervised watch status on which her client was placed is vastly
different from the broken affirmative promises to the nurse in
L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992), cert. denied, 508
U.S. 951, 113 S. Ct. 2442, 124 L. Ed. 2d 660 (1993),4 or the
affirmative denial of the father’s requests in Glaspy. Rather,
B.R. was permitted to be among people in the day room and the
State owed all the other patients in that room protection due to
their special relationship to the State -- because they were
committed to a psychiatric hospital. Nevertheless, B.R. and
other patients were permitted to mingle, in the day room
community, with themselves and in the company of others. That
is where plaintiff met with her new client. It is far from
3
B.R. was on “close visual observation” status, meaning an
Ancora employee was required to maintain visual observation of
her; there is no proximity requirement with this status. Aides
were present in the day room when the attack took place.
4
It bears noting that, on remand, the jury in L.W. determined
that the defendant had acted with gross negligence, but not
recklessness or deliberate indifference. L.W. v. Grubbs, 92
F.3d 894, 895 (9th Cir. 1996). Without a finding of deliberate
indifference, the Court of Appeals for the Ninth Circuit threw
out the jury verdict in plaintiff’s favor. Id. at 900.
13
clear that the watch status for B.R. was unusual or that other
patients in the room did not have a similar status. I cannot
conclude that the state officials’ failure to warn plaintiff of
that status rises to a conscience-shocking level of culpability.5
Moreover, the majority places great reliance on statistics
about past incidents of patient outbursts or assaults that
occurred in the day room in the years preceding this incident.
Overreliance on those statistics, in my view, skews this Court’s
analysis and requires comment. The fact that there had been
numerous attacks in the day room in years preceding this
incident does not predict that any particular patient would act
out or attack another person in the room. There is no direct
correlation between the past violence and the actual act of
violence by B.R. toward plaintiff. A history of patient
violence might affect staffing levels -- a resource-driven
determination that is rightfully assessed under state tort
law -- but it should not give rise to a constitutional violation
5
Indeed, the majority’s analysis fails to provide the slightest
guidance on whether giving notice of such watch status would
have been enough to avoid a substantive due process claim.
Instead, my colleagues cite to a totality-of-the-circumstances
approach that will leave government officials constantly
uncertain as to whether they are at risk of personal liability.
That is not the basis for sound governmental operation. Indeed,
the Supreme Court has noted its reluctance to expand
substantive-due-process liability “because guideposts for
responsible decisionmaking in this unchartered area are scarce
and open-ended.” Collins v. City of Harker Heights, 503 U.S.
115, 125, 112 S. Ct. 1061, 1068, 117 L. Ed. 2d 261, 273 (1992).
14
on the facts of this case.
Foreseeability, a necessary element under the Bright test,
is not advanced by this statistical history of incidents
involving past patients and conditions that may not bear any
resemblance to conditions in the day room on the day in which
plaintiff suffered her injuries. Bright’s test requires that
the danger must have been foreseeable and fairly direct. For
me, information about other patients’ behavior in the past does
not make the harm visited on plaintiff foreseeable and fairly
direct.
In sum, in my view plaintiff does not present a set of
facts that debatably rise to a substantive due process
violation. The Bright standard of conduct that shocks the
conscience is not satisfied and therefore this claim should not
advance past summary judgment.
III.
Even if I were to agree with the majority’s indulgent view
of these facts, I would nonetheless conclude that plaintiff’s
case should only be allowed to go to the jury in limited
fashion. I would not allow her novel claim for civil damages
against the state governmental actors to proceed. In my view,
there was no clearly established right to proceed on the basis
of state-created danger on facts such as these that would have
alerted government officials that they were violating any
15
clearly established constitutional right.
The doctrine of qualified immunity shields government
officials from personal liability under Section 1983 “insofar as
their [discretionary] conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410
(1982). Unless a government officer violates a right so clearly
established that a reasonable official would have understood
that his or her actions violated that right, governmental actors
are free to perform their duties without being hobbled by the
constant threat of individual liability under Section 1983.
Anderson v. Creighton, 483 U.S. 635, 640-41, 107 S. Ct. 3034,
3039, 97 L. Ed. 2d 523, 531 (1987). The standard is
intentionally set high before personal liability will attach.
In my view, the doctrine of qualified immunity applies in this
instance because prior cases do not clearly establish that a
claim on the basis of state-created danger would apply under
facts such as these.
Respectfully, I believe the majority overstates any
similarity between this case and L.W., supra, in which a nurse,
who was sexually assaulted by the prison inmate with whom she
was assigned to work, had been affirmatively and falsely told
that she would be under the protective supervision of guards
16
throughout her assigned task. 974 F.2d at 120. Unlike in L.W.,
no affirmative promises or false statements were given to
plaintiff in this case. Similarly, the state officials in
Glaspy, supra, exercised a degree of direct control over the
father’s actions that goes well beyond identifying places for
visitors to meet with patients, as defendants did in this case.
134 F. Supp. 2d at 892-93. Neither the majority nor the parties
cite any other cases that more persuasively establish the
applicability of a state-created-danger cause of action in
circumstances similar those of this case. Indeed, in a
persuasive decision on similar facts, the Supreme Court of
Colorado refused to find a triable claim of state-created danger
based on an inmate’s attack on a prison employee. See
Henderson, supra, 931 P.2d at 1160-62 (rejecting claim based on
failure to provide safe working environment).
In sum, if a cause of action were cognizable on these
facts, I would find that the doctrine of qualified immunity
applies in this instance. The doctrine should shield the
defendant governmental officials from this action seeking to
impose personal liability on them in their capacity as State
Department of Human Services officials or administrators of
Ancora Psychiatric Hospital. I do not believe that a state-
created-danger theory for a cause of action like the one that
plaintiff advances in this matter was clearly established under
17
law when the events underlying this action took place.
Certainly, in my view, no case had been decided that found an
actionable state-created-danger claim that resembled this one.
Moreover, I am concerned that this new theory of
constitutional violation for state-created danger will supplant
the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3, and its
careful delineation of public entity and individual liability.
Under the Tort Claims Act, willful and wanton action will render
a governmental employee bereft of state indemnification and
therefore personally responsible for civil damages. See
N.J.S.A. 59:10-1 (providing for indemnification of public
employee when defended by Attorney General); N.J.S.A. 59:10A-2
(allowing Attorney General to refuse to defend public employee
for act or omission not in scope of employment or fraud, willful
misconduct, or actual malice). The majority’s analysis, as
applied in this case, suggests that a lesser showing will permit
recovery against individual governmental officials under this
new constitutional violation.
Thus, I would apply the doctrine of qualified immunity to
bar plaintiff’s money damages claims. As the majority notes,
plaintiff also sought injunctive relief. Because qualified
immunity does not act as a bar to equitable relief, Hill v.
Borough of Kutztown, 455 F.3d 225, 244 (3d Cir. 2006),
plaintiff’s claim for injunctive relief would not be barred by
18
qualified immunity. To that extent I do not disagree with the
majority.
For the foregoing reasons, I respectfully dissent from the
judgment of the Court.
JUSTICE PATTERSON joins in this opinion.
19
SUPREME COURT OF NEW JERSEY
NO. A-101/106 SEPTEMBER TERM 2011
ON APPEAL FROM Appellate Division, Superior Court
LORRAINE GORMLEY,
Plaintiff -Appellant
and Cross-Respondent,
v.
LATANYA WOOD-EL, Chief
Executive Officer, Ancora
Psychiatric Hospital;
JENNIFER VELEZ, Current
Commissioner and WILLIAM
WALDMAN, Former Commissioner,
New Jersey Department of
Human Services; KEVIN
MARTONE, Current Assist ant
Commissioner; and ALAN G.
KAUFMAN, Former Director,
Division of Mental Health
Services, Department of Human
Services,
Defendants-Respondents
and Cross-Appellants.
DECIDED June 30, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINION BY
DISSENTING OPINION BY Justice LaVecchia
AFFIRM IN PART/
CHECKLIST REVERSE IN DISSENT
PART/REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) ---------------------- --------------------
3 2
1