Smith v. District of Columbia

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 22, 2005 Decided July 5, 2005
Reissued October 19, 2005

No. 03-7143

MINNIE SMITH,
APPELLEE

v.

DISTRICT OF COLUMBIA,
APPELLANT

GAIL L. TURNER, ADMINISTRATOR, YOUTH SERVICES
ADMINISTRATION, ET AL.,
APPELLEES

Appeal from the United States District Court
(USDC) for the District of Columbia
(No. 00cv00894)

Donna M. Murasky, Senior Assistant Attorney General,
argued the cause for appellant. With her on the briefs were
Robert J. Spagnoletti, Attorney General, and Edward E. Schwab,
Deputy Attorney General.

Leon Dayan argued the cause for appellee Minnie Smith.
With him on the brief were Robert M. Weinberg, W. Gary
Kohlman, and Laurence S. Gold. Abigail V. Carter entered an
 2

appearance.

Before: GINSBURG, Chief Judge, and EDWARDS and TATEL,
Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Chief Judge GINSBURG.

TATEL, Circuit Judge: Sometime after 11 p.m. on April 28,
1999, an unidentified assailant shot and killed seventeen-year-
old Tron Lindsey and his roommate in the apartment where they
lived as part of a program for delinquent youths in the District
of Columbia’s legal custody. Alleging among other things that
the District, by virtue of its deliberate indifference in selecting
and monitoring the program provider, had violated Tron’s
substantive due process rights, Tron’s grandmother brought suit
as next of kin and on behalf of his estate. After a twelve-day
trial, the jury found the District liable and awarded damages of
$72,000. Because Tron’s grandmother “proffered ‘sufficient
evidence upon which a jury could properly base a verdict’ in her
favor,” Mackey v. United States, 8 F.3d 826, 829 (D.C. Cir.
1993) (quoting Richardson v. Richardson-Merrell, Inc., 857
F.2d 823, 828 (D.C. Cir. 1988)) (emphasis omitted), we affirm.

I.
The District of Columbia has several ways of dealing with
delinquent youths. It places many in the Oak Hill Youth
Center—a juvenile detention facility with a history of problems
so serious that even the District has called it a “troubled
program.” See District of Columbia v. Jerry M., 738 A.2d 1206,
1212 (D.C. 1999). It places others in programs geared to youths
who have committed less serious crimes or seem relatively
likely to stay out of trouble. Such programs include
“independent living” programs—the focus of this case—in
 3

which youths live on their own in program-provided apartments,
though subject to restrictions on their activities and supervision
by staff.
Rather than running its own independent living program,
the District contracts the work out to private companies.
Although a 1986 D.C. law required the Mayor to promulgate
rules for providers of residential facilities for District juveniles,
see D.C. Code § 7-2103; see generally id. §§ 7-2101 to 7-2108
(codifying the Youth Residential Facilities Licensure Act of
1986), the Mayor failed to develop any such rules for
independent living programs prior to the events leading to this
case. Absent such rules, no minimum standards were required
of District providers generally, and the city’s Youth Services
Administration (YSA) had, in the words of its Administrator
Gail Turner, “no specific standards” for selecting providers. Tr.
3/17/03 at 32.
Viewed in the light most favorable to Tron’s grandmother,
Minnie Smith, see, e.g., Ekedahl v. COREStaff, Inc., 183 F.3d
855, 858 (D.C. Cir. 1999) (per curiam) (holding that we view the
evidence in the light most favorable to the prevailing party), the
record reveals the following events: In early 1998, the company
the District had contracted with to operate an independent living
program for delinquent youths folded due to allegations of tax
fraud. A former employee of that company, James Jones,
formed a new company, Education Solutions Academy (ESA),
intending to seek the District’s business. Although Jones had
worked at a school run by the contractor before its collapse, no
record evidence suggests that he had any experience with
independent living programs. Jones hired a program director,
Eric Antonio, who did have experience with at-risk youths but,
like Jones, had never before worked at an independent living
program—as he acknowledged, he “did not know that much
about” such programs. Tr. 3/12/03 at 67.
As the site for their program, Jones and Antonio selected
 4

Queenstown Apartments in Mt. Ranier, Maryland. Located
fairly close to a Metro stop and grocery stores, this complex
struck them as a good place for the youths to live, and they
thought its easy access to D.C. would facilitate weekend home
visits. The complex had over 1000 units, arranged in a “garden-
style” layout with every few units sharing the same main door
to the outside. Although the complex had several security
cameras, the main doors had none. Nor did these doors have
locks. Doors leading into individual units did have locks, as
well as peepholes, but record evidence suggests that poor
hallway lighting made the peepholes useless. At trial, an expert
testified that factors like “low lighting; no locks or very few
locks; no accountability; no guard services; no guard personnel
watching the area, all of which was the case at Queenstown”
tend to attract drug crimes. Tr. 3/18/03 at 103. Another expert
testified that Queenstown Apartments “ha[d] been an open air
drug market for at least 15 years” prior to 1998. Tr. 3/14/03 at
6.
During their site selection process, Antonio and Jones met
with a Queenstown Apartment manager but asked no questions
about safety or security, as Antonio conceded at trial. Nor did
they inform the manager that youths in their program would be
adjudicated delinquents. Despite Queenstown’s handful of
security measures—such as offering two reduced-rent units to
police officers—the manager testified that “we simply weren’t
equipped” to accommodate a program for juvenile delinquents.
Tr. 3/21/03 at 96. The manager even acknowledged that
Queenstown “would not have let the program on the grounds”
had it known that the program’s youths were juvenile
delinquents. Id. at 147.
With Queenstown Apartments in mind as a site, ESA sought
a contract from YSA. YSA’s point person for the approval
process was a social worker, Kenneth King. Because the
District had failed to develop criteria for evaluating contractors,
 5

see supra at 3, King had no standards against which to judge
ESA’s proposal. Along with other social workers, King met
with Jones and Antonio, but never asked whether either had
prior experience with independent living programs. Nor did he
inquire whether ESA had a Maryland license to operate an
independent living program involving minors. Had he done so,
he would have discovered that ESA lacked the necessary
license. Although King twice visited Queenstown Apartments,
he neither met with Queenstown officials nor made any inquiries
about safety or security.
Acting on King’s recommendation, YSA signed a contract
with ESA in November 1998. (Less than a year later, King quit
his YSA job to become ESA’s CEO at an annual salary of
$84,000.) During its first year of operation, ESA had up to
sixteen youths living at Queenstown Apartments at any given
time. For each youth it received $110 per day from the District.
Seventeen-year-old Tron Lindsey was one such youth. Due
to his parents’ drug problems, he had grown up with his
grandmother. Some time after moving out of her house, he was
arrested for hitting and kicking a man, charged with assault,
found guilty, and placed at the Oak Hill Youth Center. In
February 1999, a D.C. Superior Court probation officer
recommended that Tron be taken out of Oak Hill and placed in
an independent living program. The officer made this
recommendation on the basis of several factors, including
Tron’s “very limited court involvement,” his wish to complete
his education, and his own preference for an independent living
program as opposed to more time at Oak Hill. Tr. 3/20/03 at 69,
70. Accepting this recommendation, the court placed Tron with
ESA—a placement that only another court order could change.
Arriving at ESA’s Queenstown site in early March, Tron
was assigned to an apartment unit with another youth, Tyrone
Wallace. As part of the program, Tron attended life skills
workshops run by either Antonio or another ESA counselor.
 6

With Antonio’s help, Tron began spending several hours a day
at Covenant House, an educational program aimed at helping at-
risk youth. Although Tron could only get on the waiting list for
some Covenant House classes, he convinced one of its
employees to set up an independent study for him and another
ESA youth. The employee explained that while she wouldn’t do
this for everyone, Tron impressed her. Tron “expressed a real,
particular desire that seemed very sincere . . . . He was a very
polite young man. He was cooperative. He was courteous, and
for myself I know that I will often time go the extra step for
someone who acts like this is what they want.” Tr. 3/12/03 at
128.
ESA required all youths to obey a 7 p.m. curfew. After that
hour, they were neither to leave their apartments nor to let
anyone in except ESA staff. But at least in Tron’s case, this
requirement was virtually never observed. Record evidence
suggests that out of the fifty-one days Tron spent at ESA, he
missed his curfew fifty times. As Antonio put it, “[h]e usually
showed up anywhere after 7:00 to as late as 11:00. He would
usually be there the next morning.” Tr. 3/13/03 at 12.
According to Antonio, although ESA docked Tron’s allowance
(which ranged from $15 to $25 a week), it never otherwise
punished him. Antonio acknowledged, however, that Tron
might have gotten sent back to Oak Hill if he had continued to
violate the curfew.
Uncontrolled curfew violations were not ESA’s only
problem. During Tron’s brief time at Queenstown, ESA had to
release one counselor (a man with a criminal record) due to poor
performance and rumors that he was buying marijuana from
ESA youths. ESA also knew the man’s replacement had a
criminal record involving drugs (specifically, although ESA
sought no details, a conviction some years past for PCP
possession with the intent to distribute). Additionally, ESA
failed to monitor the crime rate at Queenstown Apartments. “It
 7

just didn’t occur to me at the time to do that,” Antonio
explained. Tr. 3/12/03 at 108. Had ESA kept tabs, it would
have learned that recent crimes committed on the premises
included an October 1998 robbery by a man with a gun, an
October 1998 robbery and assault by two masked men with
guns, a November 1998 robbery and assault, a November 1998
robbery and assault by two men with guns, a December 1998
burglary, a December 1998 assault, and a February 1999 robbery
by a man with a gun.
The District did little to monitor ESA’s problems. It neither
looked into whether ESA was tracking site safety nor held the
company to any staffing standards. As Turner acknowledged,
YSA had “no standards . . . as to qualifications that were
necessary for the counselors to work in the program.” Tr.
3/17/03 at 35. Although a YSA social worker was generally on
notice of Tron’s curfew violations, nothing in the record
suggests she saw this as a concern worth pursuing.
Similarly—and even more significantly—the District took
no noteworthy steps in response to two violent assaults on ESA
youths. First, in early February 1999, an ESA youth was
murdered while visiting his family during a home visit made in
violation of ESA rules. The District official reviewing the
murder was “[u]nable to determine” whether D.C.’s related
statutes and policies were adequate, Pl.’s Ex. 32, and the
investigation went no further. Then, in early April 1999, an
ESA youth was mugged and robbed at his apartment by an
armed assailant after curfew. At the time, the youth was
violating curfew because he had another ESA youth (also
violating curfew) visiting in his apartment.
On the night of April 28, 1999, in violation of their curfew,
Tron or Tyrone (the record does not conclusively show which)
let a visitor into their apartment sometime after 11 p.m. Using
a silencer-equipped gun and firing single shots to the head, the
visitor killed both youths. The murders, which brought the
 8

death toll of ESA youths to three out of sixteen (a fourth would
be murdered by the end of the year), were never solved. At trial,
the homicide detective in charge of the case testified that the
murders resulted from a targeted killing. The detective testified
that he thought Tyrone was shot first and that when criminals
use silencers, typically “the first person [they] shoot is going to
be the subject that [they] are probably looking for.” Tr. 3/13/03
at 106; see also id. at 145-46.
Succeeding Tron’s parents in interest, his grandmother
Minnie Smith sued various parties including the District, Gail
Turner, Queenstown Apartments, and ESA (renamed Re-Direct,
Inc., because its original name was improper under Maryland
law) in U.S. District Court for the District of Columbia. Smith
brought substantive due process claims against the District and
ESA pursuant to 42 U.S.C. § 1983 and negligence claims against
all defendants. The district court rejected the District’s motion
for summary judgment on the substantive due process claim and
the case went to trial. See Smith v. District of Columbia, No. 00-
0894, slip op. at 7-14 (D.D.C. Nov. 18, 2002).
After the close of Smith’s case, which developed the facts
discussed above and included expert testimony, the District
moved for a directed verdict, which the court denied with
prejudice. Following presentation of defendants’ case, the jury
found that both the District and ESA had violated Tron’s
substantive due process rights. The jury also found the District
and ESA liable for negligence that proximately caused Tron’s
death, but determined that neither Queenstown Apartments nor
Turner had acted negligently. It awarded just over $72,000 in
damages. Only the District filed a post-verdict motion for
judgment as a matter of law, which the district court denied, see
Smith v. District of Columbia, No. 00-0894 (D.D.C. Sept. 11,
2003), and only the District now appeals. For the District to
prevail fully, it must do so on both the due process and
negligence counts; by contrast, if Smith prevails on the section
 9

1983 count, she will receive the full award.

II.
We begin with the applicable legal standard. Because a
stranger—not a government agent—murdered Tron, the District
can have committed a constitutional violation only if it had an
affirmative obligation to protect Tron from harm. As the
Supreme Court explained in DeShaney v. Winnebago County
Department of Social Services, 489 U.S. 189, 196 (1989), “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.” Cf. Martinez v. State
of California, 444 U.S. 277, 283-85 (1980) (finding that state
parole board had no particular constitutional obligation to an
individual killed by a paroled prisoner). That said, the Court has
recognized that “in certain limited circumstances the
Constitution imposes upon the State affirmative duties of care
and protection with respect to particular individuals.”
DeShaney, 489 U.S. at 198. Such individuals include prisoners,
see Estelle v. Gamble, 429 U.S. 97 (1976), and mental patients
involuntarily committed to state facilities, Youngberg v. Romeo,
457 U.S. 307 (1982). In such cases, governmental “deliberate
indifference” may shock the conscience sufficiently to violate
due process. See Fraternal Order of Police Dep’t of Corrs.
Labor Comm. v. Williams, 375 F.3d 1141, 1145-46 (D.C. Cir.
2004). DeShaney explained why:
[W]hen the State takes a person into its custody and
holds him there against his will, the Constitution
imposes upon it a corresponding duty to assume some
responsibility for his safety and general well-being. . . .
The rationale for this principle is simple enough: when
the State by the affirmative exercise of its power so
restrains an individual’s liberty that it renders him
unable to care for himself, and at the same time fails to
 10

provide for his basic human needs . . . it transgresses the
substantive limits on state action set by the . . . Due
Process Clause.
489 U.S. at 199-200; see also County of Sacramento v. Lewis,
523 U.S. 833, 851 (1998). Conversely, deliberate indifference
will not violate due process where the state has no “heightened
responsibility toward the individual.” Butera v. District of
Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001). DeShaney was
just such a case. There, the plaintiff argued the state had a
heightened responsibility to a child whom it had reason to
suspect was being abused by his father. Because the child
remained in his parent’s custody, however, the Court found that
no such responsibility existed and that the state therefore
committed no constitutional violation by failing to respond to
the abuse. See id. at 201-02. In a footnote, the Court added that
had “the State by the affirmative exercise of its power removed
[the child] from free society and placed him in a foster home
operated by its agents, we might have a situation sufficiently
analogous to incarceration or institutionalization to give rise to
an affirmative duty to protect.” Id. at 201 n.9. Observing that
several circuits had reached that very conclusion, the Court
“express[ed] no view on the validity of this analogy.” Id.
This case presents a scenario close to the one described in
the DeShaney footnote. Tron was an adjudicated delinquent
whom the District had, by affirmative exercise of its police
power, placed with its agent, ESA, through a court order
revocable only by another court order. According to Smith, the
District thus had sufficient custody over Tron to impose upon it
a constitutional duty not to act indifferently with respect to his
welfare. “[E]xercise of [the District’s] custodial power to
dictate the terms” of Tron’s “living arrangements” through a
court order deprived him of “liberty to choose his own living
arrangements.” Appellee’s Br. at 23. The District sees the case
very differently. Acknowledging that “to be sure, Tron was in
 11

the District’s legal custody,” Appellant’s Br. at 28, it argues that
nonetheless Tron “cannot meaningfully be said to have been in
the District’s custody when he was murdered,” id. at 27. We
agree with Smith.
For starters, the District’s legal custody over Tron is a good
indicator that it had a duty to look after him. Because the
District, rather than Tron’s family, had primary legal control
over him, the District had legal responsibility for his daily care.
Cf. Reno v. Koray, 515 U.S. 50, 63 (1995) (noting the power the
government has over those in its legal custody). The District
downplays the significance of this point, but our case law
recognizes the relevance of formal indicia in assessing whether
custody attaches for DeShaney purposes. In Harris v. District
of Columbia, 932 F.2d 10, 14 (D.C. Cir. 1991), we held that
District police officers had no clearly established affirmative
duty to someone they were transporting to the hospital because
he “had not been formally committed, either by conviction,
involuntary commitment, or arrest, to the charge of the District”
prior to the drug overdose that triggered his need for help. In
contrast to the facts of Harris, at the time Tron was murdered,
he was “someone whom [the District] ha[d] already formally
committed to its custody,” id. at 15.
Just as important, the District’s control over Tron restrained
his liberty against his will. An adjudicated delinquent placed at
ESA by a restrictive court order, Tron had to participate in the
program. To be sure, Tron had more freedom than a
prisoner—subject to ESA rules, he could come and go, and take
ESA-approved weekend home visits. ESA’s failure to crack
down on Tron’s curfew violations also left him with a longer
leash than he was formally entitled to under the program’s rules.
But such flexibility hardly amounts to freedom from state
restraints. Tron had to live at Queenstown Apartments. He had
no choice. He risked punishment, including the possibility of
returning to Oak Hill, when he failed to obey ESA restrictions
 12

on how and where he spent his time. The District had
“restrain[ed his] freedom to act on his own behalf,’” DeShaney,
489 U.S. at 200, and held him subject to its control.
The District insists that Tron’s liberty was unconstricted
because at his court hearing he had expressed a preference for
ESA over Oak Hill. But Tron could choose only between a
greater restraint and a lesser one. As District counsel
acknowledged at oral argument, he could not walk free.
Whether he preferred ESA or Oak Hill, he would remain a
juvenile delinquent held “against his will,” id., like the prisoner
in Estelle, 429 U.S. 97, and the involuntarily confined mental
patient in Youngberg, 457 U.S. 307. In this respect, he differed
sharply from plaintiffs in Powell v. District of Columbia, 634
A.2d 403 (D.C. 1993), a case relied on by the District as
persuasive authority. There, the D.C. Court of Appeals found
that the District had no affirmative duty towards a homeless
family whom it had provided with shelter. The court relied on
the fact that no family member “was a ward or prisoner of the
District, nor was the family’s freedom of action curtailed.” Id.
at 410. Unlike these family members—who could go elsewhere
if they objected to the shelter the District provided them—Tron
was legally bound to participate in ESA and live at the site it
provided. He could not have gone elsewhere even if, for
example, he felt threatened by his roommate or his neighbors.
For DeShaney purposes, he was thus in the District’s custody,
and the “Constitution impose[d] upon [the District] a
corresponding duty to assume some responsibility for his safety
and general well-being.” DeShaney, 489 U.S. at 200.
This conclusion finds support in decisions (like those cited
in DeShaney, 489 U.S. at 201 n.9) holding that children in foster
care are in state custody for substantive due process purposes
and accordingly that in placing them in foster homes and
monitoring their progress, the state owes them a constitutional
duty of care. See Doe v. New York City Dep’t of Social Servs.,
 13

649 F.2d 134, 141-42 (2d Cir. 1981); Nicini v. Morra, 212 F.3d
798, 808 (3d Cir. 2000) (en banc); Meador v. Cabinet for
Human Res., 902 F.2d 474, 475-76 (6th Cir. 1990); Norfleet v.
Ark. Dep’t of Human Servs., 989 F.2d 289, 293 (8th Cir. 1993);
Yvonne L. v. N. M. Dep’t of Human Servs., 959 F.2d 883, 890-93
(10th Cir. 1992); Taylor v. Ledbetter, 818 F.2d 791, 796 (11th
Cir. 1987) (en banc); see also Hernandez v. Tex. Dep’t of
Protective and Regulatory Servs., 380 F.3d 872, 880 (5th Cir.
2004) (assuming such a duty); K.H. v. Morgan, 914 F.2d 846,
851-52 (7th Cir. 1990) (only reaching duty to place, not duty to
monitor). But see Milburn v. Anne Arundel County Dep’t of
Soc. Servs., 871 F.2d 474, 476 (4th Cir. 1989) (holding that a
state had no affirmative duty to a child placed voluntarily by his
parents into foster care since “he was in the custody of his foster
parents, who were not state actors” rather than in the state’s
custody). Like such children, Tron not only looked to the
government as primary guardian of his needs, but, absent
District approval, also lacked freedom to seek alternate
arrangements—precisely the two circumstances courts have
found create DeShaney custody in the foster care situation. As
the Eighth Circuit explained, the state’s duty arises because in
“foster care, a child loses his freedom and ability to make
decisions about his own welfare, and must rely on the state to
take care of his needs.” Norfleet, 989 F.2d at 293; see also, e.g.,
Taylor, 818 F.2d at 795 (explaining that the state has an
affirmative duty because foster children are “placed . . . in a
custodial environment . . . [and] unable to seek alternative living
arrangements”).
While many of these foster care cases involved younger
children, the principle remains the same: where the government
assumes full responsibility for a child by stripping control from
the family and placing the child in a government-controlled
setting, the government assumes a duty for the child’s welfare.
Indeed, the Third Circuit has specifically applied this principle
to older children. Nicini, 212 F.3d at 808 (finding that the state
 14

owed a duty of care to an adolescent in foster care because even
though “foster children, especially older ones, enjoy a greater
degree of freedom and are more likely to be able to take steps to
ensure their own safety,” the state has nonetheless “by
affirmative act, render[ed them] substantially ‘dependent upon
the state . . . to meet [their] basic needs’”) (quoting D.R. v.
Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1372
(3d Cir. 1992) (en banc)) (ellipsis in original). Similarly, we see
no reason to treat Tron differently because he was a juvenile
delinquent rather than a foster child. If anything, the difference
cuts in Tron’s favor, since it caused the District to commit him
to a state actor (ESA) rather than a purely private party. Cf.
K.H., 914 F.2d at 851-52 (suggesting that a state may have a
duty to monitor only if it places a child with state actors);
Milburn, 871 F.2d at 476-77 (similar).
Unhappy with the foster-child analogy, the District urges us
to look instead to decisions holding that public schoolchildren,
despite compulsory education laws, are not in state custody for
DeShaney purposes. See, e.g., D.R. v. Middle Bucks Area Vo.
Tech. Sch., 972 F.2d 1364, 1373 (3d Cir. 1992) (en banc); Doe
v. Hillsborough Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir.
1997) (en banc). But see Hasenfus v. LaJeunesse, 175 F.3d 68,
72 (1st Cir. 1999) (suggesting, without deciding, that under
certain circumstances a public school has a constitutional duty
of care towards its students). Just as courts have found that
compulsory schooling laws create no affirmative state duty, the
District argues, so should we find that the District’s restrictive
placement of Tron at ESA gave rise to no affirmative duty on its
part.
At least on the surface, we see some tension between the
foster care and public school cases. Both involve state
constriction of a child’s liberty—the child must live with the
foster parents and the child must receive schooling—yet only
the former triggers DeShaney custody. Courts have typically
 15

distinguished these cases by treating the custody analysis as an
all-or-nothing inquiry: the government has either assumed
primary responsibility for controlling and caring for a child (and
thus, as in the foster care context, the child is always in
government custody) or it has assumed only limited
responsibilities for parts of the day (and thus, as in the school
cases, the child is never in government custody). For example,
the Third Circuit found no custody in the school context because
“parents remain the primary caretakers,” whereas in the foster
care context “the state assumes an important continuing . . .
responsibility for the child’s well-being” and “the child’s
placement renders him or her dependent upon the state, through
the foster family, to meet the child’s basic needs.” D.R., 972
F.2d at 1371, 1372. Similarly, the Fifth Circuit stressed that in
the school context the “custody is intermittent,” “the student
returns home each day,” and “[p]arents remain the primary
source for the basic needs of their children.” Doe, 113 F.3d at
1415; see also Sargi v. Kent City Bd. of Educ., 70 F.3d 907, 911
(6th Cir. 1995) (noting that “the parents, not the state, remain the
child’s primary caretakers”).
But we need not explore the ins and outs of this issue. For
our purposes, it matters not at all whether DeShaney custody
requires that the government be the child’s primary caretaker,
that the government constrict the child’s liberty, or both. Nor
does it matter whether DeShaney custody is an all-or-nothing
affair or can instead, as the First Circuit has suggested, attach at
intermittent times based on particular circumstances, see
Hasenfus, 175 F.3d at 72. In Tron’s case, like the foster care
cases and unlike the public school cases, all these conditions
were met. The District served as Tron’s legal custodian and
primary caregiver. It placed him in a program that constrained
his liberty by limiting, among other things, where he lived and
what he could do. Indeed, Tron was murdered while subject to
these constraints—at Queenstown Apartments, at night, and
during curfew. For DeShaney purposes, then, Tron remained in
 16

District custody, and if the District was indeed deliberately
indifferent to his welfare in a way that shocked the conscience
and led to his murder, then the District committed a
constitutional violation—the issue to which we now turn.

III.
In determining whether the jury could reasonably have
found that the District violated Tron’s due process rights, we
view all disputed facts and draw all reasonable inferences in
favor of Minnie Smith, the prevailing party. Ekedahl, 183 F.3d
at 858. Pointing out that Smith prevailed against the District and
ESA but not Turner and Queenstown, the District throws a twist
into this standard of review, arguing that we must view all facts
related to Queenstown and Turner in the light most favorable to
those parties, while viewing all other facts in the light most
favorable to Smith. But the District cites no authority for this
novel proposition, nor have we found any. Had Smith appealed
the jury’s verdict in favor of Queenstown and Turner, we would
view them as prevailing parties for purposes of Smith’s appeal,
but we see no reason why the District should benefit from all
inferences to which Queenstown and Turner might have been
entitled. Perhaps the District meant to argue that the jury
verdicts were inconsistent. In civil cases where this argument is
properly raised, it does impose a special obligation on the court
to view the evidence in a manner that reconciles the verdicts if
possible, and to grant a new trial if not. Freeman v. Chicago
Park Dist., 189 F.3d 613, 615 (7th Cir. 1999). While we have
serious doubts about whether to apply this standard where, as
here, the issue is not properly raised, see Babcock v. Gen.
Motors Corp., 299 F.3d 60, 63-64 (1st Cir. 2002) (holding that
in order to preserve the issue a party must object to inconsistent
verdicts prior to judgment being entered), we need not resolve
that point since, as we explain below, see infra at 25-26, the
verdicts are consistent.
 17

The inconsistent-verdicts issue aside, we may reverse the
district court’s denial of the District’s motion for judgment as a
matter of law only if no reasonable jury could have found in
Smith’s favor. Ekedahl, 183 F.3d at 858. “[I]ntru[sion] upon
the rightful province of the jury . . . is highly disfavored. We
have repeatedly emphasized that ‘[t]he jury’s verdict must stand
unless the evidence, together with all inferences that can
reasonably be drawn therefrom is so one-sided that reasonable
[people] could not disagree on the verdict.’” Boodoo v. Cary, 21
F.3d 1157, 1161 (D.C. Cir. 1994) (quoting McNeal v. Hi-Lo
Powered Scaffolding, Inc., 836 F.2d 637, 640-41 (D.C. Cir.
1988)) (third alteration in original). “[W]e cannot substitute our
judgment for that of the jury; therefore, we neither assess
witness credibility nor weigh the evidence.” Mackey, 8 F.3d at
829.
Moreover, because the District raised its sufficiency-of-the-
evidence arguments as to the due process claim only in its pre-
verdict motion for judgment as a matter of law and not in its
post-verdict motion, the most it can win is a new trial.
Frederick v. District of Columbia, 254 F.3d 156, 160 (D.C. Cir.
2001); but see Unitherm Food Sys. v. Swift-Eckrich, Inc., 125 S.
Ct. 1396 (Feb. 28, 2005) (No. 04-597) (granting certiorari to
resolve the scope of an appellate court’s review in such
situations), granting cert. to 375 F.3d 1341 (Fed. Cir. 2004).
Since, as we explain below, sufficient evidence supports the
jury’s verdict, we need not consider whether the District’s
failure to move for judgment as a matter of law at the close of its
own case (as opposed to at the close of Smith’s case) further
limits our review “to considering whether the verdict is so
unsupported by the evidence that allowing it to stand would
constitute a manifest miscarriage of justice,” Frederick, 254
F.3d at 162.
The District presents two fact-based challenges to the jury’s
verdict. First, it argues that the jury could not have reasonably
 18

concluded that the District had a deliberately indifferent policy
or custom under Monell v. New York City Department of Social
Services, 436 U.S. 658, 691 (1978) (holding that municipal
liability for purposes of claims brought under 42 U.S.C. § 1983
must stem from an unconstitutional policy or custom rather than
simply from respondeat superior). Second, it claims that even
had such a policy or custom existed, the jury could not have
reasonably found it to be a “moving force” (i.e., cause) of Tron’s
death. We address each argument in turn.

Deliberate Indifference
While a government “policy or custom” is typically an
affirmative act, government failure to set standards or train
employees can sometimes amount to an unconstitutional policy
or custom. Considering a case where the plaintiff alleged that
failure to train police to handle detainees with medical problems
amounted to an unconstitutional municipal policy, the Supreme
Court explained:
It may seem contrary to common sense to assert that a
municipality will actually have a policy of not taking
reasonable steps to train its employees. But it may happen
that in light of the duties assigned to specific officers or
employees the need for more or different training is so
obvious, and the inadequacy so likely to result in the
violation of constitutional rights, that the policymakers of
the city can reasonably be said to have been deliberately
indifferent to the need. In that event, the failure to provide
proper training may fairly be said to represent a policy for
which the city is responsible.
City of Canton v. Harris, 489 U.S. 378, 390 (1989) (footnote
omitted). Similarly, in this case Smith alleges that “the need for
more or different” standards YSA employees could use in
selecting and monitoring providers was “so obvious and the
inadequacy so likely to result in the violation of constitutional
 19

rights” that it amounted to a deliberately indifferent District
policy. The District disagrees, but in order to prevail it must
show that no reasonable jury could have reached that
conclusion. Reviewing the record ourselves, we think sufficient
evidence supports the jury’s conclusion that the District’s lack
of standards amounted to a policy of deliberate indifference that
shocks the conscience.
The record makes patently clear that the District had no
criteria for selecting or monitoring providers like ESA. Indeed,
the District does not claim otherwise. As the district court
found, this lack of criteria related directly to the Mayor’s
violation of the District’s Youth Residential Facilities Licensure
Act, which, for twelve years before Tron’s death, had required
the promulgation of standards for youth residential facilities.
See Tr. 3/25/03 at 200-02 (describing the Mayor’s failure to
promulgate standards and holding that the Act “very clear[ly]”
applied to independent living programs). While the District’s
failure to follow its own law, standing alone, is insufficient for
a constitutional tort, “it is far from irrelevant,” Doe, 649 F.2d at
145. “The more a statute or regulation clearly mandates a
specific course of conduct, the more it furnishes a plausible
basis for inferring deliberate indifference from a failure to act.”
Id. at 146. Given the Youth Residential Facilities Licensure
Act, the jury could have inferred that the District knew it needed
standards for programs that housed troubled youths.
Even more significantly, uncontested testimony by Paul
DeMuro, one of Smith’s witnesses and an expert in juvenile
justice and child welfare, established that the District’s failure
to have such criteria left it far below what national standards of
care require of states and municipalities operating independent
living facilities for juvenile delinquents. This held true with
respect to both provider selection and monitoring.
As to provider selection, DeMuro called YSA’s lack of
criteria for selecting independent living providers “quite
 20

unusual.” Tr. 3/14/03 at 68. “[I]n most states,” he testified,
“when there is any kind of residential program or non-residential
program, the public agency will have a set of standards or
licensing regulations that they would go from to develop a
contract with any provider.” Id. He went on, “in terms of the
kind of national standards, one would expect there would be . .
. written criteria about [s]ite selection, written criteria, a
stipulation about selection and training of staff, written criteria
about the process of selecting kids and getting them prepared for
independent living which is a very tricky deal when you are
thinking about a 17 or 18 year old living semi-independently .
. . [and a] written description of a quality assurance of the
reporting system.” Id. at 73-74. The need for such criteria, he
explained, was particularly important in light of the
“problematic” potential of having “a number of teens together,
particularly juvenile justice youngsters.” Id. at 79.
DeMuro also testified that ESA failed to meet national
standards in a number of respects which the District, having no
criteria, failed to discover during the selection process. Not only
was ESA a “relatively new organization,” but it lacked
“anybody who had experience in independent living programs.”
Id. at 77. It even lacked the license it needed to operate, which
the District “[a]bsolutely” should have determined, id. ESA
employed counselors with drug records, who “should [have
been] excluded” under national standards. Id. at 81.
Additionally, DeMuro testified, national standards required the
District to have criteria for researching and evaluating site
safety. Absent such criteria, the District’s review fell short.
While “one can argue [about whether the site] was a high crime
area or not,” DeMuro testified, the District should have at least
looked into this issue. Id. at 82-83. Instead, a District employee
just “drove around the area a few times” and failed to do “a
thorough enough check on what this location meant in terms of
crime factors for kids.” Id. at 83.
 21

As to monitoring, DeMuro testified that the District
similarly fell well short of national standards of care by failing
to have an appropriate policy (or, indeed, any policy at all).
“National standards . . . would say that there should be a
monitoring system in place and that there should be quality
assurance and a process whereby the jurisdiction that is
monitoring the youngsters’ behavior know[s] the program as it
develops.” Id. at 82. According to DeMuro, the District failed
in virtually all aspects of its monitoring responsibilities.
Lacking criteria, he explained, the “District failed to do a
thorough job, do due diligence in terms of monitoring this
particular program.” Id. YSA had a “real problem” in how it
dealt with incidents like Tron’s repeated curfew violations,
where ESA’s failure to respond “sets up terrible expectations
and consequences between the youngster and the program.” Id.
at 84. YSA had a “responsibility,” id. at 90, which it failed to
discharge, to make sure that ESA was keeping track of crimes
in the complex, including the many that occurred prior to Tron’s
death, see supra at 7. YSA fell “woefully short” of national
standards in how it dealt with the armed robbery of an ESA
youth at his apartment: it failed to address either the fact that
this incident involved two curfew violations or the reality of the
violence that placed “at least two of the youngsters . . . in
danger.” Tr. 3/14/03 at 85-86. The District should have
conducted a program review “from soup to nuts,” and it should
have done the same thing—“pretty quickly”—after the early
February death of another ESA youth. Id. at 86. Instead, the
District responded to that death, like the armed robbery, in a
“tremendously inappropriate” manner. Id.
In sum, DeMuro testified that absent written criteria, the
District’s attempt to select and monitor its provider of
independent living programs was analogous to “building a house
without an architect.” Id. at 68.
 22

From such evidence, the jury could have reasonably
concluded that “the need for more or different” standards for
selecting and monitoring independent living programs for
juvenile delinquents was “so obvious and the inadequacy so
likely to result in the violation of constitutional rights” that it
constituted a deliberately indifferent city policy or custom. See
City of Canton, 489 U.S. at 390. In particular, the jury could
have reasonably inferred from DeMuro’s uncontested testimony
that the lack of standards created grave risks to youths in District
custody. Without standards—required both nationally and by
the District’s own law—YSA employees had no guidance for
selecting and monitoring providers. Without standards,
delinquent youths, a “tricky,” “problematic,” and at-risk
population, could be sent to totally inappropriate programs run
by unqualified counselors and located in unsafe areas. Without
standards, these youths could then be left in such programs
despite ensuing violence. Indeed, all these risks were realized
when YSA chose ESA as a provider and subsequently failed to
react to the murder of one youth and the armed robbery of
another. In Youngberg’s words, the jury reasonably could have
thought that the District’s failure to have standards caused it to
fall below the “minimally adequate or reasonable [protection
required] to ensure safety,” 457 U.S. at 319, for youths like Tron
within its custody.
This conclusion finds support in cases holding that juries
may infer deliberate indifference from the District’s failure to
have adequate safeguards for dealing with situations fraught
with risk. In Parker v. District of Columbia, 850 F.2d 708 (D.C.
Cir. 1988), a case brought by a man shot by District officers
attempting to arrest him in Maryland, we held that the jury could
infer deliberate indifference from the police department’s failure
to train officers adequately in disarmament and in
extrajurisdictional arrest procedures. Expert testimony
established that police training inadequately addressed problems
unique to extrajurisdictional arrests and that, as an expert
 23

“described[] and eventually demonstrated on [plaintiff’s]
counsel,” well-trained police could have subdued the suspect
without shooting him. Id. at 713-14; see also Young v. City of
Providence ex rel. Napolitano, 404 F.3d 4 (1st Cir. 2005). Just
as in Parker, the jury here could have reasonably inferred from
DeMuro’s testimony that the District’s lack of criteria fell well
below acceptable norms. Indeed, this case is even stronger:
whereas in Parker the police department offered at least some
training related to disarmament and extrajurisdictional arrest,
here YSA, in the words of its Administrator, had “no specific
standards” at all for selecting and monitoring independent living
programs, see Tr. 3/17/03 at 32.
In another case, Morgan v. District of Columbia, 824 F.2d
1049 (D.C. Cir. 1987), we concluded that the jury could have
found deliberate indifference where the District’s policy of
overcrowding jails led it to put a prisoner with “violent
tendencies” in a space with other prisoners, one of whom he
then assaulted. See id. at 1058-59. We held that since the
District had reason to be concerned about violence related to
overcrowding, the jury could have reasonably inferred “that the
District knew or should have known that its persistent method
of operating the Jail increased the risk of violent harm to
inmates.” Id. at 1060-61. Like the jury in Morgan, the jury here
could have reasonably inferred that the District acted
indifferently not merely because its lack of criteria led it to send
the youths to a program located at a dangerous site and run by
inept counselors who failed to hold Tron and other youths
accountable for violating program rules, but also because it
failed to react—at all—to the murder of one ESA youth and the
mugging of another, even though both incidents related directly
to the program’s deficiencies.
While we are persuaded that a jury could find deliberate
indifference that shocks the conscience based on the facts of this
case, the dissent, engaging in something akin to de novo review,
 24

takes a different view. First, the dissent treats the District’s lack
of standards as “barely relevant” to whether it was deliberately
indifferent to Tron’s welfare because “it does not follow that ad
hoc decisions are necessarily reckless.” Dissenting op. at 6. But
DeMuro’s testimony, entirely ignored by the dissent, offers a
clear basis for inferring that the District’s lack of standards was
reckless precisely because it was likely to lead to shoddy
provider selection and monitoring. Of course, lack of standards
might not always lead to bad provider-selection decisions—just
as lack of training might not mean that officers always fail to
disarm suspects—but that is a matter of causation. Second, the
dissent considers the District’s selection of ESA “largely
irrelevant” because, in the dissent’s view, “it is entirely possible
that ESA, although inexperienced, ran the program adequately.”
Id. at 6. We agree that this is possible, but the record contains
evidence from which a reasonable jury could reach a different
conclusion, such as DeMuro’s expert testimony that ESA had a
“real problem” in dealing with repeated curfew violations, see
Tr. 3/14/03 at 84. Third, the dissent concludes that “it is silly”
to suggest that the District’s approval of Queenstown
Apartments as the program site could have been deliberately
indifferent. Dissenting op. at 7. Were this approval deliberately
indifferent, the dissent asserts, it would mean that all parents
who had “chosen” to live at Queenstown were themselves
deliberately indifferent to their children’s welfare. Id. The
dissent’s logic not only depends on, among other things, the
unsupported assumption that such parents have the choice (in
the sense of having viable options) to select safe locales, but also
implies that no area—no matter how high the crime rate—is
inappropriate for the District to send children to, provided that
at least some families live there. The dissent further suggests
that Queenstown Apartments was relatively safe and—in a
footnote—claims its residents faced less risk of serious crime
than “the average resident” of the District. Id. at 8 & n.*. Here,
the dissent both ignores record evidence and invokes statistics
 25

neither presented to the jury nor subjected to cross-examination.
The District never offered evidence as to D.C. crime rates. But
Smith did offer expert testimony to the effect that Queenstown’s
reported crimes for 1998 “represent[ed] a high . . . amount of
criminal activity in the community,” see Tr. 3/14/03 at 49, and
that Queenstown was “an area of high drug trafficking” and a
“high crime area” in 1998 and 1999, see Tr. 3/13/03 at 183, see
also id. at 194; Tr. 3/18/03 at 100-01. The dissent may disagree
with these characterizations, but our role is limited to
determining whether “sufficient evidence in the record []
support[s] the jury’s verdict,” Williams v. First Gov’t Mortgage
and Investors Corp., 225 F.3d 738, 742 (D.C. Cir. 2000).
Finally, returning as promised to the question of verdict
consistency, we see no inconsistency between the jury’s verdict
against the District and its verdicts in favor of Queenstown and
Turner. We take the Queenstown verdict first. According to the
District, because the jury found in favor of Queenstown
Apartments, we must conclude that the site was safe and
therefore that the District’s lack of standards for site selection
could not have amounted to deliberate indifference. Both the
premise and the deduction are flawed. The jury could have
reasonably found for Queenstown not because it thought the site
safe, but because Queenstown Apartments had a significantly
lower duty to the youths (landlord rather than guardian), lacked
notice that these youths might prove particularly troublesome,
and had undertaken at least some efforts to deal with rising
crime rates. Moreover, even if Queenstown Apartments had
marginally adequate safety systems, the District deserves no
credit because, as King himself testified, the District never even
investigated site safety.
As to Turner, not only was she the ninth YSA Administrator
in sixteen years, but at the time of Tron’s murder she had
worked there for less than a year. Crediting her testimony that
it typically “takes about twelve months to learn what the job is
 26

and what the requirements are” for such positions, Tr. 3/17/03
at 26, the jury could have found that she did not act negligently
when she failed to grasp YSA’s need for standards for
residential youth programs. This is particularly plausible given
Turner’s testimony that dealing with other juvenile facilities
occupied most of her time. She had to address YSA’s recent
closure of two facilities pursuant to court order, its payment of
$3 million in fines relating to overcrowded facilities, and
“conditions of confinement [that] were said to have been
deplorable.” Id. at 65. Turner thought it a “success story” that
YSA was not in receivership. Id. at 66.

Moving Force
A deliberately indifferent policy or custom is “deemed to be
the moving force of a constitutional injury if the ‘conduct is a
substantial factor in bringing about the harm.’” Parker, 850
F.2d at 714 (quoting Morgan, 824 F.2d at 1062-63). The policy
or custom must be “closely related to the ultimate injury,” and
the court should inquire whether “the injury [would] have been
avoided” in its absence. City of Canton, 489 U.S. at 391. We
have equated moving force with proximate cause. Morgan, 824
F.3d at 1058; see also Oklahoma City v. Tuttle, 471 U.S. 808,
833 n.9 (1985) (Brennan, J., concurring). Proximate cause
“includes the notion of cause in fact,” W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 30, at 165 (5th ed.
1984), and requires an element of foreseeability, see id. § 42, at
273-74.
Although “‘the proximate cause of an injury is ordinarily a
question for the jury,’” Hicks v. United States, 511 F.2d 407,
420 (D.C. Cir. 1975) (citation omitted); see also, e.g., Rieser v.
District of Columbia, 563 F.2d 462, 480 (D.C. Cir. 1977), the
District asserts that the jury here could not have reasonably
concluded that its lack of standards was a moving force behind
Tron’s death. As to cause-in-fact—the requirement that Tron’s
 27

death “would not have occurred but for [the District’s] conduct,”
see Keeton et al., supra, § 41, at 266—the District claims that “it
cannot fairly be said that . . . there was an affirmative link
between” Tron’s death and the District policy or custom.
Appellant’s Br. at 33. Unwilling to rest entirely on this claim,
the District continues: “[a]t worst, YSA’s selection of ESA to
run an independent living program at Queenstown was a ‘but
for’ cause of his death.” Id. at 33. In the District’s view, it
could not have foreseen Tron’s death: “it was too remote a
consequence of the District’s inaction; there is no suggestion
that Tron’s assailant was an agent of the District; and the
District was unaware that Tron (or his roommate) had been
targeted for murder.” Id. at 33-34.
Again viewing the record in the light most favorable to
Smith, we conclude that the jury could have reasonably found
both cause-in-fact and foreseeability. Cause-in-fact is
straightforward. The jury could have reasonably inferred from
DeMuro’s testimony that if the District had adopted proper
standards, either it would never have selected ESA as a provider
(particularly given the inexperience of ESA employees) or it
would have required ESA to take additional steps to ensure
Tron’s and the other youths’ safety, such as tightening curfew
enforcement and arranging for more security for their
apartments—particularly in the wake of the after-curfew armed
robbery of one youth earlier that spring. From this inference,
the jury could further have concluded that had the District taken
these proper precautions, Tron would have lived. Indeed,
DeMuro saw a “direct causal link” between the District’s failure
to follow national standards of care and Tron’s death. Tr.
3/14/03 at 90-91.
As for foreseeability, the “defendant may be held liable for
harm that is foreseeably attributable to his conduct as well as for
unforeseeable harm attributable to his conduct, unless it appears
that the chain of events is highly extraordinary in retrospect.”
 28

Parker, 850 F.2d at 714 (internal quotation marks and citation
omitted). Here, the jury could have easily found that the
District’s lack of criteria for site safety, provider experience, and
program monitoring led foreseeably to unsafe providers, which
in turn led foreseeably to youths becoming victims of crime.
Indeed, an expert testified that in light of the Queenstown crime
rate alone, the murders of Tron and Tyrone were “very
predictable, very foreseeable.” Tr. 3/18/2003 at 98. The causal
connection resembles that in Morgan, 824 F.2d at 1063, where
we held that the jury had a reasonable basis for concluding that
the District’s deliberate indifference to overcrowded prison
conditions led foreseeably to increased fighting among inmates
which in turn led foreseeably to increased injuries. See also
Parker, 850 F.2d at 714 (holding that failure to train officers to
disarm suspects rendered foreseeable the injuries to a suspect
shot by an officer who did not attempt to disarm him). Indeed,
the earlier crimes against ESA youths made the risks to Tron
and the others all the more foreseeable.
The District suggests that even if danger to the youths’
safety was a foreseeable consequence of its deliberate
indifference in selecting providers, it nonetheless had no way to
have foreseen that a program youth would be targeted for
murder. In a similar vein, the dissent concludes that because we
do not know who killed Tron, his murder was not foreseeable.
See dissenting op. at 9. We disagree with both points.
Adjudicated delinquents, ESA youths had criminal records and
likely connections to dangerous characters. Given their
backgrounds, it is unsurprising that lack of
supervision—especially combined with a questionable site
location—would not only increase the likelihood they would
become victims of random violence, but also make them more
likely to engage in behavior that put them at risk of targeted
violence. As Turner herself put it, “many of these [delinquent]
young people put themselves in harm’s way and don’t act
appropriately many times . . . . [B]ecause of their life
 29

experiences and how they live, and what they are sometimes
attracted to, they are at higher risk of having things done to
them.” Tr. 03/17/03 at 86. We may not know who killed Tron
or why, but a reasonable jury could have found such targeted
killings foreseeable in light of the District’s failings and at any
rate “not highly extraordinary in retrospect,” Parker, 850 F.2d
at 714; see also Morgan, 824 F.2d at 1063.

IV.
In sum, we conclude that sufficient evidence supports the
jury’s verdict as to Smith’s substantive due process claim. This
is not a case where “the evidence, together with all inferences
that can reasonably be drawn therefrom is so one-sided that
reasonable [people] could not disagree on the verdict.” Boodoo,
21 F.3d at 1161 (quoting McNeal, 836 F.2d at 640-41). Because
Smith received no separate damages from her common law
negligence claim, we have no need to consider the District’s
challenges to its liability on that count. We affirm the district
court’s denial of the District’s motion for judgment as a matter
of law.
So ordered.
 GINSBURG, Chief Judge, dissenting: The Court today holds
the District of Columbia violated the substantive component of
the Due Process Clause of the Fifth Amendment to the
Constitution of the United States based upon a murder that, as
far as the evidence shows and common sense dictates, the
District could neither have foreseen nor, by taking reasonable
precautions, prevented. I therefore join neither the opinion nor
the judgment of the Court.

I. Background

The evidence, viewed most favorably to the appellee, tells
a story that is not especially complex. Tron Lindsey ran away
from home at the age of 15 and thereafter lived on his own for
about two years, during which time he kept out of trouble with
the law. In 1998, Lindsey, then 17, was arrested for assault,
adjudged a delinquent, and placed in the District’s Oak Hill
Youth Center.

The following year his case was assigned to Joyce Bradford,
a Superior Court probation officer, who found Lindsey “wanted
to complete his education” and was “pursuing his GED at Oak
Hill”; had “very limited court involvement”; and “very much
wanted to be independent, because he had lived in the
community for approximately two years on his own.” Bradford
concluded it was not feasible to place Lindsey with either his
mother or his grandmother, Minnie Smith. Accordingly, she
recommended, and the court agreed, that Lindsey be placed in
a supervised independent living program, which would enable
him both to complete his education and to get a job.

Lindsey was enrolled in the program run by Educational
Solutions Academy (ESA) at the Queenstown Apartments in
 2

Prince George’s County, Maryland, in March 1999, three
months before his 18th birthday. Lindsey’s participation in the
program appeared to pay immediate dividends: He entered a
program at Covenant House for at-risk youth; met with an on-
site social worker; scheduled an independent study program; and
filled out job applications. To be sure, Lindsey’s performance
was not unblemished: He often left his study program early and
regularly failed to return to his apartment before his curfew of
7:00 p.m. Those infractions, however, went neither unnoticed
nor unaddressed by ESA and nothing in the record suggests
Lindsey transgressed in any way that might have endangered his
life. To the contrary, the record shows Lindsey, nearly an adult,
was succeeding admirably in an independent living environment
when he was murdered.

Unfortunately we know little about Lindsey’s murder.
Lindsey and his roommate were found dead in their apartment
on April 29, 1999, each with a single gunshot to the head fired
from a gun with a crude silencer attached. The assailant, whose
identity remains unknown, was admitted to the apartment
without the use of force. Significantly, the police concluded the
murder was targeted but they could not confidently determine
whether the target was Lindsey or his roommate, and the
evidence in this case sheds no light upon that question.

Lindsey’s grandmother, Minnie Smith, acting on behalf of
his estate, sued ESA, the Queenstown Apartments, the District
of Columbia and the District employee who ran the Youth
Services Administration, which oversaw the independent living
program, seeking damages under 42 U.S.C. § 1983 for a
violation of substantive due process and for negligence under
the common law of the District. The jury, finding the District
and ESA had both violated the due process clause and been
negligent, awarded Smith $72,000 in damage. The Queenstown
 3

Apartments and the District employee were held not liable.

II. Analysis

On appeal the District argues Smith failed to prove both her
constitutional and her common law claims. Because, as the
Court notes, Court Op. at 8-9, each claim would individually
support the entire award of damages, I consider them both.

A. The Due Process Claim

In order to prove her claim under the due process clause,
Smith must establish (1) the District owed Lindsey a duty of
care; (2) the District breached that duty by an act exhibiting
deliberate indifference to Lindsey’s well-being “so egregious, so
outrageous, that it may fairly be said to shock the contemporary
conscience,” County of Sacramento v. Lewis, 523 U.S. 833, 847
n.8 (1998); and (3) a District policy or custom was the “moving
force behind the alleged constitutional violation,” which requires
showing either that Lindsey’s murder was foreseeable or that it
was not “highly extraordinary in retrospect,” Parker v. Dist. of
Columbia, 850 F.2d 708, 714 (D.C. Cir. 1988).

1. The District’s Duty

In ordinary circumstances “the Constitution does not
guarantee due care on the part of state officials; liability for
negligently inflicted harm is categorically beneath the threshold
of constitutional due process.” Lewis, 523 U.S. at 849. “[W]hen
the State takes a person into its custody and holds him there
against his will,” however, the substantive component of the due
process clause “imposes upon it a corresponding duty to assume
some responsibility for his safety and general well-being.”
DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S.
 4

189, 199-200 (1989). More specifically, “when the State ... so
restrains an individual’s liberty that it renders him unable to care
for himself, and at the same time fails to provide for his basic
human needs ... it transgresses the substantive limits on state
action” set by the Constitution. Id. at 200.

I agree with the Court that, because he was required to live
at the Queenstown Apartments, Lindsey was to that extent in the
“custody” of the District, and the District therefore owed him a
“corresponding duty.” Because there are degrees of restraint
within the concept of custody, the duty imposed by the
Constitution is also one of degree: If the restraint of a person’s
liberty is tight, then the duty of the state to provide for his well-
being is correspondingly elevated, cf. Taylor By and Through
Walker v. Ledbetter, 818 F.2d 791, 797 (11th Cir. 1987) (en
banc) (“foster children [are] under the umbrella of protection
afforded by the fourteenth amendment” because they are
“isolated” and “helpless”; without “investigation, supervision,
and constant contact ... a child placed in a foster home is at the
mercy of the foster parents”), whereas if the restraint is loose,
then the duty is correspondingly lower, cf. D.R. v. Middlebucks
Area Vocational Technical Sch., 972 F.2d 1364, 1373 (3d Cir.
1992) (en banc) (“compulsory attendance laws [do] not liken
school children to prisoners and the involuntarily committed,
both of whom are unable to provide for their own basic human
needs”).

With this proportionality in mind, I agree with the District’s
observation that ESA, when it constrained Lindsey to live in the
Queenstown Apartments, hardly “render[ed] him unable to care
for himself.” Lindsey sought out the program precisely in order
to enjoy the freedom it offered -- to go to school, to get a job,
and to live independently -- and Ms. Bradford recommended he
be placed in the program because he was not in need of a more
 5

restrictive regimen. It is also worth recalling that when Lindsey
began the program he was well-nigh an adult and had already
lived on his own for two years; while living at the Queenstown
Apartments, from which he would be able to come and go for
school and work, Lindsey was not a helpless ward of the
District. To be sure, Lindsey was not free to quit the program,
as the Court repeatedly points out, Court Op. at 5, 11, and 15,
but that establishes only that he was in custody -- not that he was
so restrained that the District had a duty to guard him against
any and all harms, including his improbable targeted murder.
See DeShaney, 489 U.S. at 201 (“While the State may have been
aware of the dangers [the youth] faced in the free world, it
played no part in their creation, nor did it do anything to render
him more vulnerable to them”); Palsgraf v. Long Island R.R.
Co., 162 N.E. 99, 100 (N.Y. 1928) (“The risk reasonably to be
perceived defines the duty to be obeyed”).

2. Deliberate Indifference

Nor did Smith prove the District exhibited such “deliberate
indifference” to Lindsey’s welfare as to “shock the
contemporary conscience.” Fraternal Order of Police Dep’t of
Corrs. Labor Comm. v. Williams, 375 F.3d 1141, 1145 (D.C.
Cir. 2004).* Smith argues the District showed such indifference

*
The Supreme Court has held that “in a due process
challenge to executive action, the threshold question is whether the
behavior of the governmental officer ... may fairly be said to shock the
contemporary conscience.” Lewis, 523 U.S. at 847 n.8. “Whether the
point of the conscience shocking is reached when injuries are
produced with culpability ... following from something more than
negligence but less than intentional conduct ... is a matter for closer
calls.” Id. at 849. Because not every instance of deliberate
indifference may fairly be “condemned as conscience shocking,” id.
 6

because it “fail[e]d to develop and issue any standards ... to
govern the [ESA program].” That, however, is barely relevant
to whether the District breached its duty to Lindsey. A standard
may facilitate consistent decisionmaking, but it does not follow
that ad hoc decisions are necessarily reckless. The truly relevant
inquiry is whether the District made any ad hoc decision that
exhibited deliberate indifference to Lindsey’s well-being.

Smith’s allegations regarding the District’s selection of ESA
as a provider are also largely irrelevant. There is record
evidence ESA was not experienced in operating an independent
living program but Smith must still show ESA took or failed to
take some action that exhibited deliberate indifference to the
enrollees’ safety, as it is entirely possible ESA, although
inexperienced, ran the program adequately. Smith’s contention
that ESA failed to enforce Lindsey’s curfew does not suffice
because the record establishes ESA docked Lindsey’s allowance
in an attempt to deter curfew infractions.

The only relevant decisions identified by the Court are the
District’s approval of ESA’s selection of the Queenstown
Apartments to house program enrollees and its failure to monitor
crime at the Queenstown Apartments. As for the site selection
process, the Queenstown Apartment complex was chosen
because it was a “blue collar community” in a “pretty decent
neighborhood” that was “family-oriented,” and near the
amenities necessary for independent living. Indeed, an ESA
director had lived within walking distance of the Queenstown
Apartments for five years. Smith’s key witness testified only
that the site selection process should have been more

at 850, the question here is whether the District exhibited deliberate
indifference to Lindsey’s well-being and if so, whether that
indifference is shocking to the “contemporary conscience.”
 7

“thorough.” But surely deliberate indifference, like ambition,
must be made of sterner stuff.

In any event, it is silly to suggest the District showed
deliberate indifference to Lindsey’s safety by approving
Lindsey’s placement at the Queenstown Apartments, which has
1,067 units, presumably rented to householders who -- apart
from the ESA participants in eight or nine apartments -- had
chosen to live there. Does Smith, or for that matter the Court,
truly mean to suggest that any parent who housed his or her
family in that complex exhibited deliberate indifference to their
well-being? That seems the unavoidable implication of the
plaintiff’s argument.

Smith also says the complex was “inundated” with violent
crime around the time of Lindsey’s murder, which the District
would have known had it monitored the ESA program more
closely. As a foundation for this assertion Smith points to all of
seven robberies and assaults committed at the complex during
the seven months October 1998 through April 1999, including
one robbery of an ESA participant. The record makes clear,
however, ESA did not turn a blind eye to the crime against the
ESA participant; rather, it assisted him in reporting the crime to
the police despite some evidence suggesting it was staged. The
remaining six crimes, spanning a period of seven months, could
hardly have put either ESA or the District upon notice of any
heightened need to guard Lindsey against violent crime. After
all, the jury found the Queenstown Apartments was not liable
for Lindsey’s murder, presumably because Queenstown
residents enjoyed a reasonable level of security.*

*
For perspective, note that if we make the conservative
assumption that only 2,000 people inhabited the 1,067 units at the
apartment complex, then Smith’s data show the probability of a
 8

In the final analysis, regardless whether the selection of a
site could have been more “thorough” or the District could have
monitored crime at the complex more closely, it is obvious the
District’s actions did not amount to an “executive abuse of
power ... which shocks the conscience.” Williams, 375 F.3d at
1145.

3. Moving Force

Even if the District had breached its duty to care for
Lindsey, Smith’s claim would still fail because any such breach
was not the “moving force” behind Lindsey’s murder. As the
Court notes, Court Op. at 26, we have equated that requirement
with proximate causation, which means “the particular [wrong]
was ‘foreseeable’, that is, likely enough to follow from the
defendant’s [breach] to justify holding him responsible.” Doe
v. Dominion Bank of Wash., N.A., 963 F.2d 1552, 1563 (D.C.
Cir. 1992) (Williams, J., concurring). Whether a particular harm
is foreseeable ordinarily turns upon the level of generality at

Queenstown resident being the victim of a violent crime over a one-
year period was .6%, or one in 166. Meanwhile, the average resident
of the District faced almost three times that risk (1.6%), or one in 62.
According to the D.C. Metropolitan Police Department, in 1999
residents of the District were the victims of 8,449 violent crimes --
homicides, forcible rapes, robberies, and aggravated assaults, see
Citywide Crime Statistics, Annual Totals, 1993-2004 available at
http://mpdc.dc.gov/mpdc/cwp/view,a,1239,q, 547256,mpdcNav_GID,
1556.asp, at a time when, according to the D.C. Office of Planning,
the District had a population of 519,000. Population and Rates of
Selected Components of Change, April 1990-July 1999 available at
http://www.dclibrary.org/sdc/pop-comp-change-rate.html.
Accordingly, a District resident faced a 1.6% probability (8,449 ÷
519,000 = 0.016) of being the victim of a violent crime that year.
 9

which the harm is defined, but Smith cannot sustain her burden
of proof even at a high level of generality because there is no
evidence in the record regarding the cause of Lindsey’s murder:
We do not know who killed him or why. It is therefore fanciful
to maintain his murder was a foreseeable result of the District’s
failure to enact standards for independent living programs, or to
monitor crime levels at the Queenstown Apartment complex
more closely, or of ESA’s failure more strictly to enforce
Lindsey’s 7:00 p.m. curfew. Indeed, the little we do know about
Lindsey’s murder suggests that no reasonable program standards
and not even perfect curfew observance would have made his
untimely death any less likely. Nor does it seem Lindsey’s
death by an assassin whom he or his roommate admitted into
their apartment at 11:00 p.m. could have been prevented by any
reasonable security measure.

Taking a wider view, we see also that Lindsey had no
significant criminal history, had no known involvement with any
dangerous activity, and seemed to be benefitting from the ESA
program. Not even with 20-20 hindsight can one connect any
nonfeasance on the part of the District to Lindsey’s becoming
the victim of a targeted murder -- and of course, the District is
to be held to a standard of reasonable foresight, not of hindsight.
Cf. Martinez v. California, 444 U.S. 277, 285 (1980) (state did
not violate due process clause when parole board released
prisoner who five months later committed murder because that
was “too remote a consequence of the parole officers’ action”).

B. The Negligence Claim

Smith’s claim under D.C. law fails for one of the same
reasons her claim under the Constitution fails. “The elements of
a common law action for negligence are (1) a duty of care owed
by the defendant to the plaintiff, (2) a breach of that duty by the
 10

defendant, and (3) damage to the plaintiff, proximately caused
by the breach of duty.” Powell By and Through Ricks v. Dist. of
Columbia, 634 A.2d 403, 406 (D.C. 1993). With regard to the
duty the District owed Lindsey, it is settled D.C. law that “a
defendant may be liable for harm caused by the criminal act of
another only if the crime was particularly foreseeable.”
Workman v. United Methodist Comm. on Relief, 320 F.3d 259,
262 (D.C. 2003) (emphasis added). This is a “heightened”
standard of foreseeability, which ordinarily may not be satisfied
with “generic information such as crime rates.” Id. Moreover,
because of the “sliding scale” reflected in D.C. case law, the
District owed Lindsey only a basic duty of care -- for the same
reason it owed him only a basic duty of care under the
Constitution -- Smith must adduce “specific evidence of
foreseeability.” Id. at 264.

As we have seen, Smith has not satisfied the ordinary
requirement of foreseeability necessary to establish proximate
causation, let alone the heightened standard of foreseeability a
plaintiff must meet under D.C. law in order to hold one party
responsible in damages for the criminal act of another. The
District was not on notice that Lindsey was generally in danger,
and Smith points to no specific evidence that he was in peril of
being the victim of a targeted murder. Accordingly, Smith’s
negligence claim against the District should fail.

III. Conclusion

Even under the deferential standard we accord a jury
verdict, it should be apparent that Smith has proven neither her
constitutional claim for due process nor her common law claim
for negligence. That her grandson was murdered is a tragedy.
Why it happened is a mystery. But this much is certain: The
District was not deliberately indifferent to Lindsey’s well-being,
 11

nor could it have foreseen he would be executed by an assassin.
I therefore respectfully dissent.