Legal Case Summary

Good afternoon. We're pleased to have Judge Kermit Lepez from the first circuit court of appeals with us by video. Judge Lepez, thank you for agreeing to continue to be on the panel on this case and be with us by video. Thank you for afternoon. All right we'll call our case Heather Hinderberger versus Erika School District. Good afternoon. May it please the court. My name is Richard Landzell. I represent the appellent Sally Loftis in this matter. I would respectfully request two minutes for a rebuttal. It's granted. Thank you, honor. I would also like to thank the court and counsel for accommodating the scheduling of this due to my health prior health issue. My argument today really focuses on three points concerning which we believe the district court aired in that there was a reverse of the denial of qualified immunity. The first error committed by the district court and I think the most fundamental one relates to its application of the deliberate and difference elements of the state created danger theory of liability has applied to the facts identified by the district court itself

. The second point is that when you get into deliberate indifference district work seemed to make it clear that it it viewed that as raising factual issues. I know you've couched and said no no no we accept what the district court says but what the district court says is what the mens rea there was is something to argue to the jury. Why is the district court wrong in understanding the negligence versus deliberate indifference issue to be one of fact for jury. Your honor it's an objective standard based upon again the facts which I must accept as identified by the district court but it is an objective standard but it objective standards are fact based all the time. And so whether objectively speaking you would look at this and say it falls on the negligence side of the line or it falls on the deliberate indifference side of line isn't that a question of fact. I don't believe so your honor and otherwise the decisions of this court which have repeatedly resolved this issue as a matter of law and identified it as a matter of law I would not be able to reconcile those cases and by way of example the bets versus Newcastle case the one where we had the actually you've adolescent detainees and I emphasize the the detainee part because as we know under the case law once incarcerated the state's duty is increased markedly to protect. In that case we have facts which are directly analogous and in which the district court and this court held as a matter of law that the deliberate indifference standard was not satisfied. Is the duty is the duty dear different because you're in a 14th I mean you're in a eighth amendment versus excuse me an eighth amendment versus a 14th amendment context. It is not your honor in fact we know that because in the Sacramento County of Sacramento versus Lewis case which is the seminal case in this area was in fact an eighth amendment case and is the case upon which this court and other courts have built the standard of deliberate indifference so I'm sorry. But by virtue of you're saying facts are analogous the point is there is a body of facts in each case and the determination of deliberate indifference will rise and fall based on that fact so you know you can't say something is analogous and therefore controlling you look at all the facts here there are a number of facts that make it a question mark was this negligent was this deliberate indifference and that's where the jury's role comes in does it not. I don't believe in this case your honor it is not a determination for the jury we we know because the district court told us. Well how is it categorically then not deliberate indifference. We know as a matter of law. As a matter of law because as the district court found Sally Loftus took several steps to protect the safety of Heather Hinterberger and the other cheerleaders under her supervision

. There were no mats used. Yes your honor. During this stunt. That is correct. That is correct your honor. And there is there was no rule requiring that and in fact we know because it's the district court noted mats are the efficacy of mats is in question. What's important your honor and the reason we know there's not the liberty difference here is because Sally Loftus surrounded this stunt team with spotters whose sole responsibility was to prevent the very type of injury that occurred. We know that she made the team wait seven months before attempting to add this to their routine. We know that before she did that she brought in an experienced flyer to come in and assist the wait one second. We're having a problem with an incoming call. Well be figure out how to do something around it or maybe okay okay maybe it's going. I'm sure to give it up your honor. Judge LaPas do you have a question? No thank you. The call is not from here

. I'm sorry. You're trying to thought you were talking about the steps that she took. Yes your honor. We knew that she took several steps several accepted steps. In addition to that we know that there was no rule of the body which regulates athletic and Pennsylvania's the PIAA. Neither day nor any private organization required mats for the twist down cradle. So the absence of a rule requiring something means a Porsche RR that it cannot be delivered in difference. It means that there was no there was no guidance meeting for guidance for the code. Well but she had her own guidance. She wanted to match. She insisted because common sense says when you're doing this type of exercise you don't want to do it on a concrete floor. So do you need a rule to tell you that mats are good idea? She apparently didn't. The fact she should not be penalized or her conduct cannot be considered objectively unreasonable because she requested additional safety measures beyond the ones that she indiscudably took your honor. That's the point

. And the whole touchstone I want as I understand it of qualified immunity is that the state actor must be on notice through the case law that his or her actions are clearly illegal. So there you're getting to a different issue beyond deliberating. Right, right, right. So and indeed that that seems to be the strong regular issue. So why don't you go to that? Thank you, Your Honor. Yes, indeed. As of March 3 of 2004 and indeed as of today, neither this court and certainly not the Supreme Court nor any other court of appeals has applied the state created danger theory to a situation involving a public school athletic injury. The district court said, well, you know, it's been applied in this context. It's a great danger theory. It's been applied in cases involving teachers who have molested their students. That is not. But how about the wrestling case? How about the the wrestling cases? This is pretty much you want to say analogous similar to that? Well, the Cioto case, the district court case. First, we know because this court has told us that a single district court case cannot create clearly established law, but bring aside for the moment, assuming that it is correctly reason. In that case, we had two, we had two very different things going on here

. We had the coach invite a collegiate level wrestler who was roughly 36% heavier in weight, 40 pounds heavier in weight, was six years older than the young youthful wrestler come in and live wrestle the plaintiff's. Again, is that your best pitch? Because I expect your counsel could up here and say, here we have a coach telling a freshman girl, let these people hurl you 15 feet into the air over a concrete floor with no manning. And, you know, isn't that just on its face something that you would think people would know you just can't do? Your honor, if that's the case, then if that's conscious chalking, then how is it? It cannot be. It is something that goes on all the time in 2004 and continuing to talk today in front of hundreds of parents and other spectators. It's just that Glock was said in response to that argument, maybe for him, that when young athletes are doing that on a hardwood floor or basketball court or something like that, it is presumably because they have mastered this for it, not because they are starting it for the very first time that day. But let's leave that aside from him, because I think we've slipped back into deliberate and different versus negligence. And I would like you to stay on the point you were starting on, which is, is this clearly established? Is it clearly established? And here's one way I've asked the question. Tell me whether I'm thinking about this correctly or not. And I'll ask counsel for this interviewer this as well. Can it? Is the question whether it can be said to be beyond dispute that a stunting without mats was deliberately indifferent? Is that a fair way to put it or an unfair way to put it? Is that an, oh, better, I should say? Is that the legally correct question or not? I believe it is, Your Honor. I mean, is it, is it per se deliberately indifferent to stunt without mats? I think that's a fair question. And I believe we, well, no, I, not in the context of this case, though, Your Honor, because the issue is, I think the better way to state it, is it deliberately indifferent to employ a variety of safety measures, including spotters, surrounding the stunt team, including an experienced trainer, including waiting and then not have mats because of their unavailability and yet to proceed. I think that's the, for this case, the best way to articulate the standard. With respect to deliberately clearly established, though, I should mention that, you know, it's unusual in this case, typically I would not cite district court cases to this court, but they're helpful here, because they illustrate the fact that the district courts are really all over the map here, although they are definitely predominantly running in favor of not recognizing this theory in this context

. They appear to recoil from that. Are you saying they're all over the map on the deliberate indifference or the clearly established aspect? Both, Your Honor. Well, they don't get clearly established because they reject the theory. The first promise, Saasier, they never get to the second. But the point here is that to impose liability on Sally Loftus in this situation, it asks for a degree of legal scholarship and clear avoidance that district court judges and lawyers struggle with. I mean, I try to find some controlling principles, some coherence of this law, and it's very difficult. And particularly, given the fact that, you know, there's one district court case, Ciota, which you can try to find in analogy to, which I think is very different, to say that that somehow puts Sally Loftus on notice that failing to use maps, doing all the other things she did, failing to use maps. Somehow, she should have been on notice that that was clearly legal, I think it is a nice reality. I think you're right. You can say that about the whole line of cases, I mean, starting with night. Would that officer have known clearly established? And it's almost as though we put the kind of the deliberate indifference or shock the conscience, once we find that, we say, well, as the court is saying, it's beyond dispute, or no one in their right mind, and therefore it's clearly established. And I agree with you, it's a tough, it's a tough leap, but we take those. I see I'm running out of time and I don't mean to interrupt you. I mean, I recognized state-created danger, but I don't recall, but I'm not sure that it dealt with the clearly established

. I don't think it could have, because it was the first time the court recognized it. And if this court were to find that there was a constitutional violation here, so be it, we will have guidance going forward. State officials, part-time court, parent coaches like Sally Loftes will have guidance going forward, but it is fundamentally unfair to use this case as to adopt that standard, and then retroactively apply it to her conduct in 2004. Thank you very much, Ron. Councillor, could you start kind of where we left off? Good afternoon, first of all. Sorry. Turning Tom Myers on behalf of the accolade, Heather Hinterberger. Thank you. Is it your thought that if we or jury were to find delivered in difference that that suddenly makes it clearly established, and if not, what makes this set of facts to what transforms it into something that is clearly established law? I'm not sure I understood the first part of the court's question, but as to whether or not this, the state-created danger doctrine was clearly established in this context. Clearly, this court's decision in Dover's is dealing says that just your court decisions are properly considered and do inform illegal landscape. The COTO case wasn't so- Well, I might inform, but clearly established is pretty strong. It's very strong. It is. Just two weeks ago, the Supreme Court in a precarium opinion stand versus Sims quoted outkid and and made the point that it require, if it may not require a case strike on point, but the precedent quote must have placed the statutes where your constitutional question beyond debate

. That's from how kid reemphasized again in this opinion just two weeks ago. It has to have put the question beyond debate. Can you really, Mr. Myers, tell us on the basis of COTO that the question is beyond debate? You're on or again, because it's a district court decision, it can't alone represent clearly established law, and I'm not going to suggest to the court that it can, but there were a number of cases within the third circuit in the school setting context. In 92, there was DR versus Middle Box. In 93, there was Hunter versus Carbondale. These were school setting cases that made the framework. They're actually created danger liability. DR, isn't that a molestation case? I understand they're different in terms of the fact that they're really different. I mean, there's a level of particularity and generalization that we have to be on guard about. We're told by the Supreme Court that when you're talking about clearly established law, you've got to pay attention to the level of generality because at a certain level, if you go up high enough, you can say, well, yeah, that was in the law for a long time. So for purposes of discussion, except that molesting children is not the same, this high school athletic issues generally, and stick to what we're talking about here. Is it fair to put the question as I put it to Mr. Runzerwa that is that the legal issue is whether it could be said to be beyond debate that stunking without mass is deliberately in different behavior

. To the extent that it represented deliberately in different state action, I think it I think the answer is yes. Well, no, Mr. you're answering my first question, which was once you say deliberate indifference, does that then transform it into clearly established? My point in saying it like that is because I'm differentiating from the DR and Hunter cases where there was student on student injury versus this case and the before you go there. Before you go there. Where the state actor caused harm. I don't want you to go too far, but I'll have you go back there, Mr. Myers. But I do want to answer my question, which is, is that the right question? I mean, you've answered the question and said yes, it is. You've said yes, it is the case that that would be deliberately in different and that's bad. But my question is, is that even the right question to start with is the way I framed the correct legal question? Is it beyond dispute that stunting without mats is deliberately indifferent? Is that even the right way to frame the question? Well, now you've just asked two questions, your Hunter. The answer to the first question is I believe it is. Mr. Brasier, plaintiffs, safety expert testified that he doubts you would be able to find any competent coach in the country who would do such a thing. Qualified immunity does not protect the plainly incompetent or those who knowingly violate the law

. At the very least, Lafthus, there's abundant evidence that she was plainly incompetent for doing such a shocking thing that any reasonable high school trealiting coach would recognize as shocking because of the severe risk of serious injury that she exposed Hentra Brother to by doing something. I think you might have put the rabid in the hat when you said contrary to law there, right? Because that's what we're trying to wrestle with is whether whether this is so plainly obvious that it's just loopy. And maybe, and shouldn't there be a case, you say, well, how will look at this case law? Clearly, this case law says this is not allowed. So what is that case law that says, clearly, this is not, this is deliberate and different? Well, again, I would have to go back to the state-created danger analysis itself as established and formally adopted by night where... So once you've state-created danger, there is no qualified immunity defense. I mean, that's basically what you're saying. You're saying if we find all the omens of state-created danger to be fulfilled, then automatically you've got to clearly establish. No, there's certainly, as the case law reflects, you know, the objective reasonableness in Korea, and even if the law is clearly established, if the defendant can demonstrate that corrections were objectively reasonable, qualified immunity still applies. Here we would argue that... On that point, on that point, do you accept what the district court seems to say, which the district seems to accept, which is this was a genuinely freak accident. The testimony was, you know, this... The experienced coach who was there said she'd never seen anything like it. Other students said she, Ms. Hinterberger flew over in a way that was kind of bizarre. It was that for you, except what appears to be a factual statement by the district court that this was truly a freak accident. The court says that the testimony would certainly allow for that... Yeah, the testimony would certainly allow for that conclusion, but nonetheless, lofty says conduct, with knowledge of the risk of serious injury with stunting in general, that this was a more dangerous and risky stunt that she was introducing to the squad and the benefit of safety netting in reducing the risk of serious injury. What if she'd had a circle of spotters that went out 10 feet instead of four or five feet? Again, this goes back to what the court already noted is that it's really a factual issue for resolution by the jury. Her men's ray here. Spotters are notoriously ineffective in catching unanticipated falls

. The testimony was, you know, this... The experienced coach who was there said she'd never seen anything like it. Other students said she, Ms. Hinterberger flew over in a way that was kind of bizarre. It was that for you, except what appears to be a factual statement by the district court that this was truly a freak accident. The court says that the testimony would certainly allow for that... Yeah, the testimony would certainly allow for that conclusion, but nonetheless, lofty says conduct, with knowledge of the risk of serious injury with stunting in general, that this was a more dangerous and risky stunt that she was introducing to the squad and the benefit of safety netting in reducing the risk of serious injury. What if she'd had a circle of spotters that went out 10 feet instead of four or five feet? Again, this goes back to what the court already noted is that it's really a factual issue for resolution by the jury. Her men's ray here. Spotters are notoriously ineffective in catching unanticipated falls. The safety manual that we've placed into evidence specifically warns against this very type of activity where you are introducing a more difficult stunt. It's beyond the current level of your spotters, without safety, beyond the level of your flyer. But your outskirts and counsel puts into the record a whole lot of information from athletic associations too. The fact that Matting wasn't called for until recently and that when you were doing a double twist, I mean these indicate that there are some conflicting views about this, do they not? They absolutely do not. This is a key point that Loft has continues to ignore because she has no answer for it. And that's that this stunt occurred during the learning of a new stunt. These standards, these new standards that were adopted years later after this injury occurred that refer to the double twist down, referred to mastered stunts. Not new stunts, of course mastered stunts are done without matting and public venues like basketball games and things like that. But that wasn't the case here. Loft has seen better. She gambled with Miss Hinterberg's safety. Well that's an interesting way to put it because is not cheerleading inherently got risk of it. I mean when you have any kind of athletic activity that involves flying, whether it's gymnastics or cheerleading, isn't it something in which there is going to be risk? Is it, is what you're arguing for when you say she gambled with Miss Hinterberg or doesn't every student and every coach who accepts, accept a level of risk associated with that this kind of activity and the question is what's an acceptable level of risk? Yes, to your initial question. There absolutely is risk with any type of athletic activity cheerleading stunting included

. The safety manual that we've placed into evidence specifically warns against this very type of activity where you are introducing a more difficult stunt. It's beyond the current level of your spotters, without safety, beyond the level of your flyer. But your outskirts and counsel puts into the record a whole lot of information from athletic associations too. The fact that Matting wasn't called for until recently and that when you were doing a double twist, I mean these indicate that there are some conflicting views about this, do they not? They absolutely do not. This is a key point that Loft has continues to ignore because she has no answer for it. And that's that this stunt occurred during the learning of a new stunt. These standards, these new standards that were adopted years later after this injury occurred that refer to the double twist down, referred to mastered stunts. Not new stunts, of course mastered stunts are done without matting and public venues like basketball games and things like that. But that wasn't the case here. Loft has seen better. She gambled with Miss Hinterberg's safety. Well that's an interesting way to put it because is not cheerleading inherently got risk of it. I mean when you have any kind of athletic activity that involves flying, whether it's gymnastics or cheerleading, isn't it something in which there is going to be risk? Is it, is what you're arguing for when you say she gambled with Miss Hinterberg or doesn't every student and every coach who accepts, accept a level of risk associated with that this kind of activity and the question is what's an acceptable level of risk? Yes, to your initial question. There absolutely is risk with any type of athletic activity cheerleading stunting included. But not this particular. This is what differentiates one of the things that differentiates this case from the Scorch Betts decision. In Betts, you know violent impact physical and often violent impact is something that's integral. I mean it's expected on every play and yet serious injuries so infrequent that that risk isn't substantial or objectively intolerable by societal standards. This is much different this case is. If serious if violent impact with a concrete floor was expected on every stunt, this activity would not exist because of the risk of severe injury. Do we know if she fell at a place that normally would have been matted or was this out? She flipped flip way out. Do we know that? That's going to be another factual issue. I can't honestly say that that question that we've identified the answer to that. That seems pretty important because it might seem to be the be all in the end all here. Well, if the mattes would normally as a matter of course, been in a location and she flipped beyond that location, that would seem to have some bearing. We would certainly present testimony at trial that the matting would have been of a sufficient dimension to prevent this fall. I believe that's what our experts believe. The thing about Betts is tackle football has played on grass, not a hard surface

. But not this particular. This is what differentiates one of the things that differentiates this case from the Scorch Betts decision. In Betts, you know violent impact physical and often violent impact is something that's integral. I mean it's expected on every play and yet serious injuries so infrequent that that risk isn't substantial or objectively intolerable by societal standards. This is much different this case is. If serious if violent impact with a concrete floor was expected on every stunt, this activity would not exist because of the risk of severe injury. Do we know if she fell at a place that normally would have been matted or was this out? She flipped flip way out. Do we know that? That's going to be another factual issue. I can't honestly say that that question that we've identified the answer to that. That seems pretty important because it might seem to be the be all in the end all here. Well, if the mattes would normally as a matter of course, been in a location and she flipped beyond that location, that would seem to have some bearing. We would certainly present testimony at trial that the matting would have been of a sufficient dimension to prevent this fall. I believe that's what our experts believe. The thing about Betts is tackle football has played on grass, not a hard surface. If two teenagers head scum together at full force, the grass you fall down on doesn't really make a difference. I'm not sure Betts is all that helpful to me. We're spending time in the foreseeability realm and maybe that's to some extent unavoidable. But I'm coming back to the question of clearly established law because your argument seems to be stunting without mattes is if so fact, on its face deliberately a different and because it's deliberately a different, it was something that you'd have to say was a part of a state-created danger and beyond the reach of qualified immunity. Everything seems to flow from the assertion that it's just so obvious you can't do this with mattes. Is that my fairly characterizing argument? When the stunt is a new and unmasked stunt and it's conducted over a hard and unforgiving surface at such a height and involves a mid-air acrobatic maneuver like this one did. Yes, that it's beyond dispute that there was a constitutional right beyond dispute that there's a constitutional right not to learn a stunt in high school cheerleading squad without a man. Because that's the question you have to say yes to, right? Yes and this activity was entirely optional. This wasn't something that loftists had to do. She opted to do this. Well, it's all optional right? I mean if you want to know risk cheerleading squad you could have them come out you know on their knees on rollerboards so they're not more than two inches above the ground go woohoo and scoop back off the floor. As long as you're doing cheerleading it's all voluntary and there's going to be some risk isn't there? True but I don't think that children and their parents need to check their constitutional rights at the door in order to participate in a public school athletic program. Well that's again you're putting the rabbit in the hat by saying check your constitutional right? That's the question we're trying to answer. Is there a constitutional right and was it clearly established? And if I'm understanding you right it all comes down to without nets is by that very fact a constitutional violation and it was clearly established

. If two teenagers head scum together at full force, the grass you fall down on doesn't really make a difference. I'm not sure Betts is all that helpful to me. We're spending time in the foreseeability realm and maybe that's to some extent unavoidable. But I'm coming back to the question of clearly established law because your argument seems to be stunting without mattes is if so fact, on its face deliberately a different and because it's deliberately a different, it was something that you'd have to say was a part of a state-created danger and beyond the reach of qualified immunity. Everything seems to flow from the assertion that it's just so obvious you can't do this with mattes. Is that my fairly characterizing argument? When the stunt is a new and unmasked stunt and it's conducted over a hard and unforgiving surface at such a height and involves a mid-air acrobatic maneuver like this one did. Yes, that it's beyond dispute that there was a constitutional right beyond dispute that there's a constitutional right not to learn a stunt in high school cheerleading squad without a man. Because that's the question you have to say yes to, right? Yes and this activity was entirely optional. This wasn't something that loftists had to do. She opted to do this. Well, it's all optional right? I mean if you want to know risk cheerleading squad you could have them come out you know on their knees on rollerboards so they're not more than two inches above the ground go woohoo and scoop back off the floor. As long as you're doing cheerleading it's all voluntary and there's going to be some risk isn't there? True but I don't think that children and their parents need to check their constitutional rights at the door in order to participate in a public school athletic program. Well that's again you're putting the rabbit in the hat by saying check your constitutional right? That's the question we're trying to answer. Is there a constitutional right and was it clearly established? And if I'm understanding you right it all comes down to without nets is by that very fact a constitutional violation and it was clearly established. I think that's right when you look at night and the pseudo rather extensive qualified immunity analysis that loftists had fair warning. Hope at night did night get into qualified immunity? No but when you look at night and it it was a state actor caused harm. Right. It wasn't student on student. Right but then that night on state created danger yes okay but you can't use night as going to clearly established. I understand that but you can only go to Kyoto. The district court decisions after night that were prior to loftists conduct all had no trouble following night's analysis. We had Maxwell, we had Sussovich and Soto. They all were able to follow night's analysis and applied the willful disregard as it was initially known were deliberate indifference culpability standard because the circumstances provided for unherry judgment. There's also another case that the court didn't mention and that was the page versus school of Philadelphia 1999 Eastern District Court decision. So there were at least four cases prior to this conduct that involved school setting injuries where the night state created danger analysis was followed without any confusion. Two months after this injury occurred I see that I'm out of time. You can finish that thought please. Two months after this injury occurred there was another district court decision in Hillard versus Lamper Strasbourg School District which followed Soto

. I think that's right when you look at night and the pseudo rather extensive qualified immunity analysis that loftists had fair warning. Hope at night did night get into qualified immunity? No but when you look at night and it it was a state actor caused harm. Right. It wasn't student on student. Right but then that night on state created danger yes okay but you can't use night as going to clearly established. I understand that but you can only go to Kyoto. The district court decisions after night that were prior to loftists conduct all had no trouble following night's analysis. We had Maxwell, we had Sussovich and Soto. They all were able to follow night's analysis and applied the willful disregard as it was initially known were deliberate indifference culpability standard because the circumstances provided for unherry judgment. There's also another case that the court didn't mention and that was the page versus school of Philadelphia 1999 Eastern District Court decision. So there were at least four cases prior to this conduct that involved school setting injuries where the night state created danger analysis was followed without any confusion. Two months after this injury occurred I see that I'm out of time. You can finish that thought please. Two months after this injury occurred there was another district court decision in Hillard versus Lamper Strasbourg School District which followed Soto. It's they created danger in qualified immunity analysis and their facts really quite similar here where there was a serious injury suffered as a result of a fall where there was no safety matter in use. Thank you very much. Thank you very much. Mr. Lanzone, you reserve two minutes. Regarding the clearly established principle. I do not believe it can be that these cases that we're talking about now can be reconciled with that's and I want to pick up on a point that my learned co-counsel referenced as far as the anticipated impact between football players. That case is more on point than I think I really emphasize. That is also a lack of equipment case. A failure to employ all available safety. Sure the inherent risk of football is a high speed impact but what happened in that case was they played this game without helmets. In I respectfully submit that is far more culpable than anything that Sally Loftus has been accused of. And as I try to discern some coherent standard among these cases. I look at the atso case from the middle district of Pennsylvania in the alt case

. It's they created danger in qualified immunity analysis and their facts really quite similar here where there was a serious injury suffered as a result of a fall where there was no safety matter in use. Thank you very much. Thank you very much. Mr. Lanzone, you reserve two minutes. Regarding the clearly established principle. I do not believe it can be that these cases that we're talking about now can be reconciled with that's and I want to pick up on a point that my learned co-counsel referenced as far as the anticipated impact between football players. That case is more on point than I think I really emphasize. That is also a lack of equipment case. A failure to employ all available safety. Sure the inherent risk of football is a high speed impact but what happened in that case was they played this game without helmets. In I respectfully submit that is far more culpable than anything that Sally Loftus has been accused of. And as I try to discern some coherent standard among these cases. I look at the atso case from the middle district of Pennsylvania in the alt case. The middle district case is a situation where you have a coach who is observing a young woman basketball player, a basketball player who's showing clear signs of having sustained a concussion. He sends her back into the game which aggravates her condition and she ends up with severe injuries. Court in that case twice ruled as a matter of law at the pleading stage. No state created danger. It wasn't not the one where she said if you don't feel well come out. Perhaps. And I think that's analogous to the underspeeded fact that Sally Loftus has always won the record. If you're not feeling well, if you don't feel up to it, don't participate. Well let me ask a practical question. Okay. And the theoretical discussion we've been having here shouldn't take away from in any way the the sense of sorrow that anybody's going to feel about a young person sustaining injury, especially a serious injury is the one that that occurred here. How will school districts know that they better find money in their budget for matting instead of through liability imposed on a coach if nothing else put on notice that you can't you can't just say hey learn this stunt over a concrete floor. Good luck. How are they supposed to get a message about safety if we if we don't allow a lawsuit like this to move forward

. The middle district case is a situation where you have a coach who is observing a young woman basketball player, a basketball player who's showing clear signs of having sustained a concussion. He sends her back into the game which aggravates her condition and she ends up with severe injuries. Court in that case twice ruled as a matter of law at the pleading stage. No state created danger. It wasn't not the one where she said if you don't feel well come out. Perhaps. And I think that's analogous to the underspeeded fact that Sally Loftus has always won the record. If you're not feeling well, if you don't feel up to it, don't participate. Well let me ask a practical question. Okay. And the theoretical discussion we've been having here shouldn't take away from in any way the the sense of sorrow that anybody's going to feel about a young person sustaining injury, especially a serious injury is the one that that occurred here. How will school districts know that they better find money in their budget for matting instead of through liability imposed on a coach if nothing else put on notice that you can't you can't just say hey learn this stunt over a concrete floor. Good luck. How are they supposed to get a message about safety if we if we don't allow a lawsuit like this to move forward. Your honor the the Supreme Court has entered that in saucer. You have discretion and also Pearson versus Calihan. You may if you choose of course find a Constitution violation here. But Sally Loftus cannot be sacrificed on the public policy of encouraging greater attention to safety by school districts. And that's what's that's what the second prong of the saucer analysis is all about. So if indeed you know a message must be sent it can be sent well at the same time not not detracted from this Loftus's entitlement to qualified immunity. And I would note one if I may just finish one quick thought related to the Gatsko case. I did note that the alt case out of the Western District of Pennsylvania found a way to found a way to distinguish Gatsko by saying that there was a compulsion there there was an allegation that the coach pressured or forced the student to re-enter the game after having sustained the injury and that was distinguishing and that was more of an affirmative act. As I say in my brief I have no idea whether any of these analyses are appealing to the court or correct. I won't know what the correct analysis is until this court speaks. But that's precisely why qualified immunity is appropriate here. All right. Thank you very much. All right

. Your honor the the Supreme Court has entered that in saucer. You have discretion and also Pearson versus Calihan. You may if you choose of course find a Constitution violation here. But Sally Loftus cannot be sacrificed on the public policy of encouraging greater attention to safety by school districts. And that's what's that's what the second prong of the saucer analysis is all about. So if indeed you know a message must be sent it can be sent well at the same time not not detracted from this Loftus's entitlement to qualified immunity. And I would note one if I may just finish one quick thought related to the Gatsko case. I did note that the alt case out of the Western District of Pennsylvania found a way to found a way to distinguish Gatsko by saying that there was a compulsion there there was an allegation that the coach pressured or forced the student to re-enter the game after having sustained the injury and that was distinguishing and that was more of an affirmative act. As I say in my brief I have no idea whether any of these analyses are appealing to the court or correct. I won't know what the correct analysis is until this court speaks. But that's precisely why qualified immunity is appropriate here. All right. Thank you very much. All right. Judge LePes, did you have any lingering questions? No, I'm fine. Thank you very much. Thank you very much. Thank you. Will recess court and we'd like to clear the court room and we'll confer with Judge LePes on the line now. Yes, for sure. Thank you very much. Thank you. Yeah.

Good afternoon. We're pleased to have Judge Kermit Lepez from the first circuit court of appeals with us by video. Judge Lepez, thank you for agreeing to continue to be on the panel on this case and be with us by video. Thank you for afternoon. All right we'll call our case Heather Hinderberger versus Erika School District. Good afternoon. May it please the court. My name is Richard Landzell. I represent the appellent Sally Loftis in this matter. I would respectfully request two minutes for a rebuttal. It's granted. Thank you, honor. I would also like to thank the court and counsel for accommodating the scheduling of this due to my health prior health issue. My argument today really focuses on three points concerning which we believe the district court aired in that there was a reverse of the denial of qualified immunity. The first error committed by the district court and I think the most fundamental one relates to its application of the deliberate and difference elements of the state created danger theory of liability has applied to the facts identified by the district court itself. The second point is that when you get into deliberate indifference district work seemed to make it clear that it it viewed that as raising factual issues. I know you've couched and said no no no we accept what the district court says but what the district court says is what the mens rea there was is something to argue to the jury. Why is the district court wrong in understanding the negligence versus deliberate indifference issue to be one of fact for jury. Your honor it's an objective standard based upon again the facts which I must accept as identified by the district court but it is an objective standard but it objective standards are fact based all the time. And so whether objectively speaking you would look at this and say it falls on the negligence side of the line or it falls on the deliberate indifference side of line isn't that a question of fact. I don't believe so your honor and otherwise the decisions of this court which have repeatedly resolved this issue as a matter of law and identified it as a matter of law I would not be able to reconcile those cases and by way of example the bets versus Newcastle case the one where we had the actually you've adolescent detainees and I emphasize the the detainee part because as we know under the case law once incarcerated the state's duty is increased markedly to protect. In that case we have facts which are directly analogous and in which the district court and this court held as a matter of law that the deliberate indifference standard was not satisfied. Is the duty is the duty dear different because you're in a 14th I mean you're in a eighth amendment versus excuse me an eighth amendment versus a 14th amendment context. It is not your honor in fact we know that because in the Sacramento County of Sacramento versus Lewis case which is the seminal case in this area was in fact an eighth amendment case and is the case upon which this court and other courts have built the standard of deliberate indifference so I'm sorry. But by virtue of you're saying facts are analogous the point is there is a body of facts in each case and the determination of deliberate indifference will rise and fall based on that fact so you know you can't say something is analogous and therefore controlling you look at all the facts here there are a number of facts that make it a question mark was this negligent was this deliberate indifference and that's where the jury's role comes in does it not. I don't believe in this case your honor it is not a determination for the jury we we know because the district court told us. Well how is it categorically then not deliberate indifference. We know as a matter of law. As a matter of law because as the district court found Sally Loftus took several steps to protect the safety of Heather Hinterberger and the other cheerleaders under her supervision. There were no mats used. Yes your honor. During this stunt. That is correct. That is correct your honor. And there is there was no rule requiring that and in fact we know because it's the district court noted mats are the efficacy of mats is in question. What's important your honor and the reason we know there's not the liberty difference here is because Sally Loftus surrounded this stunt team with spotters whose sole responsibility was to prevent the very type of injury that occurred. We know that she made the team wait seven months before attempting to add this to their routine. We know that before she did that she brought in an experienced flyer to come in and assist the wait one second. We're having a problem with an incoming call. Well be figure out how to do something around it or maybe okay okay maybe it's going. I'm sure to give it up your honor. Judge LaPas do you have a question? No thank you. The call is not from here. I'm sorry. You're trying to thought you were talking about the steps that she took. Yes your honor. We knew that she took several steps several accepted steps. In addition to that we know that there was no rule of the body which regulates athletic and Pennsylvania's the PIAA. Neither day nor any private organization required mats for the twist down cradle. So the absence of a rule requiring something means a Porsche RR that it cannot be delivered in difference. It means that there was no there was no guidance meeting for guidance for the code. Well but she had her own guidance. She wanted to match. She insisted because common sense says when you're doing this type of exercise you don't want to do it on a concrete floor. So do you need a rule to tell you that mats are good idea? She apparently didn't. The fact she should not be penalized or her conduct cannot be considered objectively unreasonable because she requested additional safety measures beyond the ones that she indiscudably took your honor. That's the point. And the whole touchstone I want as I understand it of qualified immunity is that the state actor must be on notice through the case law that his or her actions are clearly illegal. So there you're getting to a different issue beyond deliberating. Right, right, right. So and indeed that that seems to be the strong regular issue. So why don't you go to that? Thank you, Your Honor. Yes, indeed. As of March 3 of 2004 and indeed as of today, neither this court and certainly not the Supreme Court nor any other court of appeals has applied the state created danger theory to a situation involving a public school athletic injury. The district court said, well, you know, it's been applied in this context. It's a great danger theory. It's been applied in cases involving teachers who have molested their students. That is not. But how about the wrestling case? How about the the wrestling cases? This is pretty much you want to say analogous similar to that? Well, the Cioto case, the district court case. First, we know because this court has told us that a single district court case cannot create clearly established law, but bring aside for the moment, assuming that it is correctly reason. In that case, we had two, we had two very different things going on here. We had the coach invite a collegiate level wrestler who was roughly 36% heavier in weight, 40 pounds heavier in weight, was six years older than the young youthful wrestler come in and live wrestle the plaintiff's. Again, is that your best pitch? Because I expect your counsel could up here and say, here we have a coach telling a freshman girl, let these people hurl you 15 feet into the air over a concrete floor with no manning. And, you know, isn't that just on its face something that you would think people would know you just can't do? Your honor, if that's the case, then if that's conscious chalking, then how is it? It cannot be. It is something that goes on all the time in 2004 and continuing to talk today in front of hundreds of parents and other spectators. It's just that Glock was said in response to that argument, maybe for him, that when young athletes are doing that on a hardwood floor or basketball court or something like that, it is presumably because they have mastered this for it, not because they are starting it for the very first time that day. But let's leave that aside from him, because I think we've slipped back into deliberate and different versus negligence. And I would like you to stay on the point you were starting on, which is, is this clearly established? Is it clearly established? And here's one way I've asked the question. Tell me whether I'm thinking about this correctly or not. And I'll ask counsel for this interviewer this as well. Can it? Is the question whether it can be said to be beyond dispute that a stunting without mats was deliberately indifferent? Is that a fair way to put it or an unfair way to put it? Is that an, oh, better, I should say? Is that the legally correct question or not? I believe it is, Your Honor. I mean, is it, is it per se deliberately indifferent to stunt without mats? I think that's a fair question. And I believe we, well, no, I, not in the context of this case, though, Your Honor, because the issue is, I think the better way to state it, is it deliberately indifferent to employ a variety of safety measures, including spotters, surrounding the stunt team, including an experienced trainer, including waiting and then not have mats because of their unavailability and yet to proceed. I think that's the, for this case, the best way to articulate the standard. With respect to deliberately clearly established, though, I should mention that, you know, it's unusual in this case, typically I would not cite district court cases to this court, but they're helpful here, because they illustrate the fact that the district courts are really all over the map here, although they are definitely predominantly running in favor of not recognizing this theory in this context. They appear to recoil from that. Are you saying they're all over the map on the deliberate indifference or the clearly established aspect? Both, Your Honor. Well, they don't get clearly established because they reject the theory. The first promise, Saasier, they never get to the second. But the point here is that to impose liability on Sally Loftus in this situation, it asks for a degree of legal scholarship and clear avoidance that district court judges and lawyers struggle with. I mean, I try to find some controlling principles, some coherence of this law, and it's very difficult. And particularly, given the fact that, you know, there's one district court case, Ciota, which you can try to find in analogy to, which I think is very different, to say that that somehow puts Sally Loftus on notice that failing to use maps, doing all the other things she did, failing to use maps. Somehow, she should have been on notice that that was clearly legal, I think it is a nice reality. I think you're right. You can say that about the whole line of cases, I mean, starting with night. Would that officer have known clearly established? And it's almost as though we put the kind of the deliberate indifference or shock the conscience, once we find that, we say, well, as the court is saying, it's beyond dispute, or no one in their right mind, and therefore it's clearly established. And I agree with you, it's a tough, it's a tough leap, but we take those. I see I'm running out of time and I don't mean to interrupt you. I mean, I recognized state-created danger, but I don't recall, but I'm not sure that it dealt with the clearly established. I don't think it could have, because it was the first time the court recognized it. And if this court were to find that there was a constitutional violation here, so be it, we will have guidance going forward. State officials, part-time court, parent coaches like Sally Loftes will have guidance going forward, but it is fundamentally unfair to use this case as to adopt that standard, and then retroactively apply it to her conduct in 2004. Thank you very much, Ron. Councillor, could you start kind of where we left off? Good afternoon, first of all. Sorry. Turning Tom Myers on behalf of the accolade, Heather Hinterberger. Thank you. Is it your thought that if we or jury were to find delivered in difference that that suddenly makes it clearly established, and if not, what makes this set of facts to what transforms it into something that is clearly established law? I'm not sure I understood the first part of the court's question, but as to whether or not this, the state-created danger doctrine was clearly established in this context. Clearly, this court's decision in Dover's is dealing says that just your court decisions are properly considered and do inform illegal landscape. The COTO case wasn't so- Well, I might inform, but clearly established is pretty strong. It's very strong. It is. Just two weeks ago, the Supreme Court in a precarium opinion stand versus Sims quoted outkid and and made the point that it require, if it may not require a case strike on point, but the precedent quote must have placed the statutes where your constitutional question beyond debate. That's from how kid reemphasized again in this opinion just two weeks ago. It has to have put the question beyond debate. Can you really, Mr. Myers, tell us on the basis of COTO that the question is beyond debate? You're on or again, because it's a district court decision, it can't alone represent clearly established law, and I'm not going to suggest to the court that it can, but there were a number of cases within the third circuit in the school setting context. In 92, there was DR versus Middle Box. In 93, there was Hunter versus Carbondale. These were school setting cases that made the framework. They're actually created danger liability. DR, isn't that a molestation case? I understand they're different in terms of the fact that they're really different. I mean, there's a level of particularity and generalization that we have to be on guard about. We're told by the Supreme Court that when you're talking about clearly established law, you've got to pay attention to the level of generality because at a certain level, if you go up high enough, you can say, well, yeah, that was in the law for a long time. So for purposes of discussion, except that molesting children is not the same, this high school athletic issues generally, and stick to what we're talking about here. Is it fair to put the question as I put it to Mr. Runzerwa that is that the legal issue is whether it could be said to be beyond debate that stunking without mass is deliberately in different behavior. To the extent that it represented deliberately in different state action, I think it I think the answer is yes. Well, no, Mr. you're answering my first question, which was once you say deliberate indifference, does that then transform it into clearly established? My point in saying it like that is because I'm differentiating from the DR and Hunter cases where there was student on student injury versus this case and the before you go there. Before you go there. Where the state actor caused harm. I don't want you to go too far, but I'll have you go back there, Mr. Myers. But I do want to answer my question, which is, is that the right question? I mean, you've answered the question and said yes, it is. You've said yes, it is the case that that would be deliberately in different and that's bad. But my question is, is that even the right question to start with is the way I framed the correct legal question? Is it beyond dispute that stunting without mats is deliberately indifferent? Is that even the right way to frame the question? Well, now you've just asked two questions, your Hunter. The answer to the first question is I believe it is. Mr. Brasier, plaintiffs, safety expert testified that he doubts you would be able to find any competent coach in the country who would do such a thing. Qualified immunity does not protect the plainly incompetent or those who knowingly violate the law. At the very least, Lafthus, there's abundant evidence that she was plainly incompetent for doing such a shocking thing that any reasonable high school trealiting coach would recognize as shocking because of the severe risk of serious injury that she exposed Hentra Brother to by doing something. I think you might have put the rabid in the hat when you said contrary to law there, right? Because that's what we're trying to wrestle with is whether whether this is so plainly obvious that it's just loopy. And maybe, and shouldn't there be a case, you say, well, how will look at this case law? Clearly, this case law says this is not allowed. So what is that case law that says, clearly, this is not, this is deliberate and different? Well, again, I would have to go back to the state-created danger analysis itself as established and formally adopted by night where... So once you've state-created danger, there is no qualified immunity defense. I mean, that's basically what you're saying. You're saying if we find all the omens of state-created danger to be fulfilled, then automatically you've got to clearly establish. No, there's certainly, as the case law reflects, you know, the objective reasonableness in Korea, and even if the law is clearly established, if the defendant can demonstrate that corrections were objectively reasonable, qualified immunity still applies. Here we would argue that... On that point, on that point, do you accept what the district court seems to say, which the district seems to accept, which is this was a genuinely freak accident. The testimony was, you know, this... The experienced coach who was there said she'd never seen anything like it. Other students said she, Ms. Hinterberger flew over in a way that was kind of bizarre. It was that for you, except what appears to be a factual statement by the district court that this was truly a freak accident. The court says that the testimony would certainly allow for that... Yeah, the testimony would certainly allow for that conclusion, but nonetheless, lofty says conduct, with knowledge of the risk of serious injury with stunting in general, that this was a more dangerous and risky stunt that she was introducing to the squad and the benefit of safety netting in reducing the risk of serious injury. What if she'd had a circle of spotters that went out 10 feet instead of four or five feet? Again, this goes back to what the court already noted is that it's really a factual issue for resolution by the jury. Her men's ray here. Spotters are notoriously ineffective in catching unanticipated falls. The safety manual that we've placed into evidence specifically warns against this very type of activity where you are introducing a more difficult stunt. It's beyond the current level of your spotters, without safety, beyond the level of your flyer. But your outskirts and counsel puts into the record a whole lot of information from athletic associations too. The fact that Matting wasn't called for until recently and that when you were doing a double twist, I mean these indicate that there are some conflicting views about this, do they not? They absolutely do not. This is a key point that Loft has continues to ignore because she has no answer for it. And that's that this stunt occurred during the learning of a new stunt. These standards, these new standards that were adopted years later after this injury occurred that refer to the double twist down, referred to mastered stunts. Not new stunts, of course mastered stunts are done without matting and public venues like basketball games and things like that. But that wasn't the case here. Loft has seen better. She gambled with Miss Hinterberg's safety. Well that's an interesting way to put it because is not cheerleading inherently got risk of it. I mean when you have any kind of athletic activity that involves flying, whether it's gymnastics or cheerleading, isn't it something in which there is going to be risk? Is it, is what you're arguing for when you say she gambled with Miss Hinterberg or doesn't every student and every coach who accepts, accept a level of risk associated with that this kind of activity and the question is what's an acceptable level of risk? Yes, to your initial question. There absolutely is risk with any type of athletic activity cheerleading stunting included. But not this particular. This is what differentiates one of the things that differentiates this case from the Scorch Betts decision. In Betts, you know violent impact physical and often violent impact is something that's integral. I mean it's expected on every play and yet serious injuries so infrequent that that risk isn't substantial or objectively intolerable by societal standards. This is much different this case is. If serious if violent impact with a concrete floor was expected on every stunt, this activity would not exist because of the risk of severe injury. Do we know if she fell at a place that normally would have been matted or was this out? She flipped flip way out. Do we know that? That's going to be another factual issue. I can't honestly say that that question that we've identified the answer to that. That seems pretty important because it might seem to be the be all in the end all here. Well, if the mattes would normally as a matter of course, been in a location and she flipped beyond that location, that would seem to have some bearing. We would certainly present testimony at trial that the matting would have been of a sufficient dimension to prevent this fall. I believe that's what our experts believe. The thing about Betts is tackle football has played on grass, not a hard surface. If two teenagers head scum together at full force, the grass you fall down on doesn't really make a difference. I'm not sure Betts is all that helpful to me. We're spending time in the foreseeability realm and maybe that's to some extent unavoidable. But I'm coming back to the question of clearly established law because your argument seems to be stunting without mattes is if so fact, on its face deliberately a different and because it's deliberately a different, it was something that you'd have to say was a part of a state-created danger and beyond the reach of qualified immunity. Everything seems to flow from the assertion that it's just so obvious you can't do this with mattes. Is that my fairly characterizing argument? When the stunt is a new and unmasked stunt and it's conducted over a hard and unforgiving surface at such a height and involves a mid-air acrobatic maneuver like this one did. Yes, that it's beyond dispute that there was a constitutional right beyond dispute that there's a constitutional right not to learn a stunt in high school cheerleading squad without a man. Because that's the question you have to say yes to, right? Yes and this activity was entirely optional. This wasn't something that loftists had to do. She opted to do this. Well, it's all optional right? I mean if you want to know risk cheerleading squad you could have them come out you know on their knees on rollerboards so they're not more than two inches above the ground go woohoo and scoop back off the floor. As long as you're doing cheerleading it's all voluntary and there's going to be some risk isn't there? True but I don't think that children and their parents need to check their constitutional rights at the door in order to participate in a public school athletic program. Well that's again you're putting the rabbit in the hat by saying check your constitutional right? That's the question we're trying to answer. Is there a constitutional right and was it clearly established? And if I'm understanding you right it all comes down to without nets is by that very fact a constitutional violation and it was clearly established. I think that's right when you look at night and the pseudo rather extensive qualified immunity analysis that loftists had fair warning. Hope at night did night get into qualified immunity? No but when you look at night and it it was a state actor caused harm. Right. It wasn't student on student. Right but then that night on state created danger yes okay but you can't use night as going to clearly established. I understand that but you can only go to Kyoto. The district court decisions after night that were prior to loftists conduct all had no trouble following night's analysis. We had Maxwell, we had Sussovich and Soto. They all were able to follow night's analysis and applied the willful disregard as it was initially known were deliberate indifference culpability standard because the circumstances provided for unherry judgment. There's also another case that the court didn't mention and that was the page versus school of Philadelphia 1999 Eastern District Court decision. So there were at least four cases prior to this conduct that involved school setting injuries where the night state created danger analysis was followed without any confusion. Two months after this injury occurred I see that I'm out of time. You can finish that thought please. Two months after this injury occurred there was another district court decision in Hillard versus Lamper Strasbourg School District which followed Soto. It's they created danger in qualified immunity analysis and their facts really quite similar here where there was a serious injury suffered as a result of a fall where there was no safety matter in use. Thank you very much. Thank you very much. Mr. Lanzone, you reserve two minutes. Regarding the clearly established principle. I do not believe it can be that these cases that we're talking about now can be reconciled with that's and I want to pick up on a point that my learned co-counsel referenced as far as the anticipated impact between football players. That case is more on point than I think I really emphasize. That is also a lack of equipment case. A failure to employ all available safety. Sure the inherent risk of football is a high speed impact but what happened in that case was they played this game without helmets. In I respectfully submit that is far more culpable than anything that Sally Loftus has been accused of. And as I try to discern some coherent standard among these cases. I look at the atso case from the middle district of Pennsylvania in the alt case. The middle district case is a situation where you have a coach who is observing a young woman basketball player, a basketball player who's showing clear signs of having sustained a concussion. He sends her back into the game which aggravates her condition and she ends up with severe injuries. Court in that case twice ruled as a matter of law at the pleading stage. No state created danger. It wasn't not the one where she said if you don't feel well come out. Perhaps. And I think that's analogous to the underspeeded fact that Sally Loftus has always won the record. If you're not feeling well, if you don't feel up to it, don't participate. Well let me ask a practical question. Okay. And the theoretical discussion we've been having here shouldn't take away from in any way the the sense of sorrow that anybody's going to feel about a young person sustaining injury, especially a serious injury is the one that that occurred here. How will school districts know that they better find money in their budget for matting instead of through liability imposed on a coach if nothing else put on notice that you can't you can't just say hey learn this stunt over a concrete floor. Good luck. How are they supposed to get a message about safety if we if we don't allow a lawsuit like this to move forward. Your honor the the Supreme Court has entered that in saucer. You have discretion and also Pearson versus Calihan. You may if you choose of course find a Constitution violation here. But Sally Loftus cannot be sacrificed on the public policy of encouraging greater attention to safety by school districts. And that's what's that's what the second prong of the saucer analysis is all about. So if indeed you know a message must be sent it can be sent well at the same time not not detracted from this Loftus's entitlement to qualified immunity. And I would note one if I may just finish one quick thought related to the Gatsko case. I did note that the alt case out of the Western District of Pennsylvania found a way to found a way to distinguish Gatsko by saying that there was a compulsion there there was an allegation that the coach pressured or forced the student to re-enter the game after having sustained the injury and that was distinguishing and that was more of an affirmative act. As I say in my brief I have no idea whether any of these analyses are appealing to the court or correct. I won't know what the correct analysis is until this court speaks. But that's precisely why qualified immunity is appropriate here. All right. Thank you very much. All right. Judge LePes, did you have any lingering questions? No, I'm fine. Thank you very much. Thank you very much. Thank you. Will recess court and we'd like to clear the court room and we'll confer with Judge LePes on the line now. Yes, for sure. Thank you very much. Thank you. Yeah