The U.S. Court of Appeals for the Third Circuit has ruled that a former Pennsylvania State Police firearms instructor who allegedly disregarded multiple safety measures and ultimately shot and killed a fellow trooper during training is not immune from a lawsuit brought by the deceased trooper's mother.

A three-judge panel consisting of Third Circuit Judges Cheryl Ann Krause and D. Michael Fisher, along with visiting Eighth Circuit Judge Michael J. Melloy, overturned an Eastern District of Pennsylvania judge's ruling that former Cpl. Richard Schroeter was entitled to qualified immunity as a state employee.

Joan Kedra, mother of Trooper David Kedra, sued Schroeter for civil rights violations under the state-created danger theory. According to Krause's opinion, Schroeter skipped over several safety checks, included checking to see if the gun was loaded, aiming at a person instead of at a target, and then pulling the trigger.

Eastern District Judge Eduardo Robreno dismissed the case and granted immunity to Schroeter on the basis that Kedra's complaint pleaded only an “objective theory of deliberate indifference” or what a ”reasonable official should have known because the risk was so obvious, which was not then-clearly established, and was insufficient to plead the clearly established subjective theory of deliberate indifference, i.e., that Schroeter was actually aware that his conduct carried a substantial risk of serious harm.”

The court agreed with Robreno that the objective theory of deliberate indifference was not clearly established at the time of the accident. But Krause added that “because obviousness of risk is relevant to proving actual knowledge and the allegations of the complaint here were more than sufficient to support a reasonable inference that Schroeter had such knowledge, we conclude the complaint adequately pleads a state-created danger claim under a then-clearly established theory of liability.”

Michael J. Quirk of Williams Cuker & Berezofsky, who represents Kedra, said in an email: ”We are very pleased with the Third Circuit's decision. The court got all of the qualified immunity issues exactly right. The Kedra family now will finally have their day in court.”

Kevin R. Bradford of the state Attorney General's Office did not respond to a request for comment.

In addition to Krause's opinion, Fisher issued a concurrence. In it, he agreed with the overall ruling, but said Robreno's decision should have been reversed on “narrower grounds.”

“I would limit this decision to the narrowest possible grounds, and would reverse solely because of the allegation that Schroeter pleaded guilty to recklessly endangering another person in Pennsylvania court. I do not believe that the other allegations on which the majority relies are sufficient—separately or together—to state a claim,” Fisher said.

The U.S. Court of Appeals for the Third Circuit has ruled that a former Pennsylvania State Police firearms instructor who allegedly disregarded multiple safety measures and ultimately shot and killed a fellow trooper during training is not immune from a lawsuit brought by the deceased trooper's mother.

A three-judge panel consisting of Third Circuit Judges Cheryl Ann Krause and D. Michael Fisher, along with visiting Eighth Circuit Judge Michael J. Melloy, overturned an Eastern District of Pennsylvania judge's ruling that former Cpl. Richard Schroeter was entitled to qualified immunity as a state employee.

Joan Kedra, mother of Trooper David Kedra, sued Schroeter for civil rights violations under the state-created danger theory. According to Krause's opinion, Schroeter skipped over several safety checks, included checking to see if the gun was loaded, aiming at a person instead of at a target, and then pulling the trigger.

Eastern District Judge Eduardo Robreno dismissed the case and granted immunity to Schroeter on the basis that Kedra's complaint pleaded only an “objective theory of deliberate indifference” or what a ”reasonable official should have known because the risk was so obvious, which was not then-clearly established, and was insufficient to plead the clearly established subjective theory of deliberate indifference, i.e., that Schroeter was actually aware that his conduct carried a substantial risk of serious harm.”

The court agreed with Robreno that the objective theory of deliberate indifference was not clearly established at the time of the accident. But Krause added that “because obviousness of risk is relevant to proving actual knowledge and the allegations of the complaint here were more than sufficient to support a reasonable inference that Schroeter had such knowledge, we conclude the complaint adequately pleads a state-created danger claim under a then-clearly established theory of liability.”

Michael J. Quirk of Williams Cuker & Berezofsky, who represents Kedra, said in an email: ”We are very pleased with the Third Circuit's decision. The court got all of the qualified immunity issues exactly right. The Kedra family now will finally have their day in court.”

Kevin R. Bradford of the state Attorney General's Office did not respond to a request for comment.

In addition to Krause's opinion, Fisher issued a concurrence. In it, he agreed with the overall ruling, but said Robreno's decision should have been reversed on “narrower grounds.”

“I would limit this decision to the narrowest possible grounds, and would reverse solely because of the allegation that Schroeter pleaded guilty to recklessly endangering another person in Pennsylvania court. I do not believe that the other allegations on which the majority relies are sufficient—separately or together—to state a claim,” Fisher said.