Philadelphia Inquirer
Friday, February 21, 2003

2 officers cleared in Schieber lawsuit

By Craig R. McCoy,
INQUIRER STAFF WRITER

A federal appeals court yesterday seriously undermined a lawsuit contending that two Philadelphia police officers missed the chance to save the life of a Wharton School student sexually assaulted and killed by serial rapist Troy Graves.

A panel of the U.S. Court of Appeals for the Third Circuit voted, 2-1, to dismiss the two officers as defendants in a lawsuit filed over the 1998 murder of Shannon Schieber.

The officers, Raymond Scherff, now 40, and Steven Woods, now 34, arrived outside Schieber's apartment door after a downstairs neighbor called 911 to report hearing someone scream and a choking sound.

The pair departed after talking with several neighbors, inspecting the apartment's windows from outside, and pounding on the door with nightsticks and getting no response. The neighbor equivocated about whether the sounds had come from inside his building or from the street outside.

Schieber, 23, an academic super-achiever at the Wharton School of the University of Pennsylvania and a superb equestrian who tutored inner-city youngsters, was found strangled inside the next morning. Last year, Graves confessed to her murder, as well as to five other attacks in Philadelphia and eight in Colorado.

A lawsuit filed by Schieber's parents, Sylvester and Vicki Schieber of Chevy Chase, Md., asserted that the two officers should have knocked down their daughter's door.

But the majority's 23-page opinion yesterday concluded that the police had conducted a decent investigation and made a "good-faith" judgment balancing the potential risk to Schieber against her right to privacy.

The ruling does not stop the lawsuit cold. But it seriously weakens it.

The sole question under appeal was whether the two police officers as individuals should stand civil trial. The court took that issue up ahead of any trial to spare the officers the ordeal of being put through a trial only to be granted immunity after the fact.

The status of the City of Philadelphia and its Police Department as defendants was not subject to pretrial appeal. That means the Schiebers may still contend at a trial that the city as a whole should be found liable for systemic failings, notably the former practice of the police rape squad of routinely dismissing rape victims as liars. Graves' first two victims were rejected by the squad in this way. Schieber was his fifth victim, and the only one he killed.

However, the ruling means the Schiebers may collect only compensatory damages should they win in court. Under law, only individual officials, and not governments, may be assessed punitive damages.

"There's still life in the case. How much life and where it will go, I just don't know," said Marc Fleischaker, attorney for the Schiebers.

Sylvester Schieber said he and his wife would consult with their lawyer before deciding their next step. Among their options are asking for the full Third Circuit bench to take up the matter anew, appealing to the U.S. Supreme Court, proceeding to trial - or withdrawing the case.

"I am certainly not of any inclination to drop things," he said.

Schieber said it had been hard to endure the wait for this key ruling, which came more than a year after oral arguments.

"We're very disappointed in their opinion," he said. "More than just the opinion, it's that they took such an egregious amount of time to render it."

Neither the officers nor city lawyers could be reached for comment.

Police Commissioner Sylvester M. Johnson said the department backed the two officers.

"I stood by them then. I stand by them today," Johnson said. "I think they did everything they could do based on the circumstances."

It is extremely difficult to sue police for failing to stop a murder. Courts have long held that police may not be held legally responsible for failing to protect particular crime victims.

To prevail in court, those suing must generally show that police actually did something to increase the danger to a victim and that their conduct, in a key U.S. Supreme Court phrase, "shocks the conscience." In one significant case, for instance, police were found liable after they pulled a drunk from a bar and left him in subfreezing temperatures to die.

In contrast, Judge Walter K. Stapleton wrote, Officers Wood and Scherff "arrived promptly, conducted an appropriate investigation and made a conscious decision" assessing the risks inherent in what they knew at the time.

Perhaps, Stapleton said, "one can argue with the benefit of hindsight that these officers exercised poor judgment and were thus guilty of negligence." But their response was not so egregious as to amount to a federal violation of Schieber's rights, he wrote.

Judge Richard L. Nygaard agreed with Stapleton.

Judge Gregory M. Sleet dissented. He said a jury should decide whether the officers' conduct was understandable or appalling.

Moreover, Sleet said, testimony suggested that the officers had used leading questions to raise doubt in the neighbor's mind about the noises he had heard.

A key remaining mystery of Schieber's murder is whether Graves was actually inside killing her while the officers were outside.

In his confession, Graves, now serving a life sentence in Colorado, said he had strangled Schieber amid a struggle and fled before police arrived.

The Schiebers say they think Graves was lying or mistaken. They noted that her upstairs balcony door was closed when Woods and Scherff inspected the place while at the apartment building, but open the next morning. That, they say, shows that Graves slipped away only after the officers had departed.