Two new opinions, including a big qualified-immunity reversal

Kedra v. Schroeter — civil rights — reversal — Krause

A Pennsylvania state trooper died during a routine firearms training when the instructor allegedly failed to check whether a gun was empty before pointing it at the trooper’s chest and pulling the trigger. The slain trooper’s wife sued the instructor under 42 USC § 1983, alleging a due process state-created-danger claim. The district court ruled that the instructor was entitled to qualified immunity because he did not know that the gun was loaded. Today, the Third Circuit reversed, holding that the obviousness of a risk is relevant to prove that the state actor was aware of that risk and that here the wife sufficiently alleged the instructor’s awareness.

Judge Fisher concurred, although in my view it would have been more accurate to say he concurred in part and concurred in the judgment. He argued, among other points, that the majority’s reliance on the obviousness of the risk and the officer’s training was mistaken. He wrote:

I am concerned by the impact that the breadth of the majority’s decision could have on the law of qualified immunity. I am equally troubled by the recent trajectory of this Court’s jurisprudence.

Fisher closed by noting, “Perhaps the full Court will revisit the qualified immunity framework to reexamine whether it is consistent with the history of the Due Process Clause.” (Judge Fisher assumed senior status on February 1, and senior judges do not vote on whether to grant en banc rehearing.)

Joining Krause was Melloy CA8 by designation; Fisher concurred. Arguing counsel were Michael Quirk of Williams Cuker for the wife and Claudia Tesoro of the state AG’s office for the instructor.


US v. Ferguson — criminal — affirmance — Hardiman

The Third Circuit held that the district court did not commit plain error when it mentioned a defendant’s bare arrests at sentencing, distinguishing Mateo-Medina.

Joining Hardiman were Jordan and Scirica. The case was decided without oral argument.