United States Court of Appeals
For the First Circuit
No. 04-1773
ANTONIO VÉLEZ-DÍAZ; SANTA GARCÍA-HERNÁNDEZ;
CONJUGAL PARTNERSHIP VÉLEZ-GARCÍA; YAHAIRA FAJARDO-CORREA;
ANTONECHA VÉLEZ-FAJARDO, a minor,
Plaintiffs, Appellees,
v.
AMADO VEGA-IRIZARRY; MIGUEL A. MARRERO; JANE ERICKSON;
VÍCTOR M. LÓPEZ; TEODORO LEBRÓN, ET AL.,
Defendants, Appellants,
UNITED STATES OF AMERICA,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Selya, and Lynch,
Circuit Judges.
Anthony A. Yang, with whom Barbara L. Herwig, Attorneys,
Appellate Staff, Civil Division, Peter D. Keisler, Assistant
Attorney General, and H.S. García, United States Attorney, were on
brief, for appellant.
Frank D. Inserni-Milam, with whom Luis R. Mellado-González,
was on brief, for appellees.
September 2, 2005
TORRUELLA, Circuit Judge. This case concerns the tragic
death of Antonio Vélez-García ("Vélez"), an undercover Federal
Bureau of Investigation ("FBI") cooperating witness, who was
murdered by a gang member while assisting the FBI in a criminal
investigation into Puerto Rico gang-related drug trafficking
involving the use of firearms.
Vélez's parents, Antonio Vélez-Díaz and Santa García-
Hernández, his widow, Yahaira Fajardo-Correa, and his minor
daughter, Antonecha Vélez-Fajardo ("Vélez's relatives"), brought an
action for money damages in the United States District Court for
the District of Puerto Rico against the individual law enforcement
agents with whom Vélez was cooperating at the time of his death --
FBI agents Amado Vega-Irizarry, Miguel A. Marrero, and Jane
Erickson, and Puerto Rico police officers Víctor M. López and
Teodoro Lebrón -- in their individual capacities. Vélez's
relatives seek over ten million dollars in damages based on two
principal claims for monetary relief: (1) a claim pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971), alleging a violation of the Fifth Amendment; and (2) a
negligence claim arising under the Puerto Rico Constitution and
Puerto Rico statutory law.
The United States and the individual defendants now bring
the present interlocutory appeal challenging the district court's
opinion and order, which denied a motion to substitute the United
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States as defendant for the state law claim pursuant to the
Westfall Act, 28 U.S.C. § 2679, and to dismiss the Bivens claim.
I.
A. Factual Background
On or about January 16, 2003, federal agents arrested
Vélez for possession of controlled substances and informed him that
he might serve a long prison sentence for his criminal activity.
Vélez told the agents that he did not want to go to prison, and the
agents asked Vélez if he was interested in cooperating with them.
Vélez later accepted the offer to cooperate and worked with the FBI
as a cooperating witness for nearly two months until he was killed
in the early morning of March 5, 2003.
On the evening of March 4, 2003, Vélez was working with
the defendant agents to set up large-scale transactions of
controlled substances and/or firearms in Guaynabo, Puerto Rico.
The agents installed a video camera in the van Vélez used for the
transaction and attached a recording device to Vélez's body. Vélez
remained in constant communication with the agents via the
recording device. After about four hours of contact with the gang
members, including David Gómez-Olmeda, Vélez repeatedly stated
through the body-recording device that he was tired and wanted to
leave. Shortly thereafter, Gómez, without warning, shot Vélez
approximately eight times at close range and killed him.
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In their complaint, plaintiffs aver that Vélez's murder
was the direct result of the failure of the defendant agents to
follow unspecified FBI and Puerto Rico police regulations, policies
and directives in the handling of informants and witnesses
cooperating with the government. In particular, plaintiffs contend
that the agents were reckless in failing to protect Vélez, "because
they left [Vélez], by himself, far away from themselves." Compl.
¶ 21. Plaintiffs thus claimed damages pursuant to the Fifth
Amendment of the United States Constitution as well as Article II,
Sections 8 and 10 of the Constitution of the Commonwealth of Puerto
Rico and the Puerto Rico statutory law of negligence, P.R. Laws
Ann. Tit. 31, § 5141.1
B. Procedural History
The individual defendants and the United States moved to
dismiss both the state law and federal constitutional claims. With
respect to the claims arising under Puerto Rico statutory and
constitutional law, the United States moved to substitute itself
for the individual defendants pursuant to Section 6 of the Westfall
Act, 28 U.S.C. § 2679(d), by certifying that the defendants were
acting within the scope of their federal employment. At the same
1
Plaintiffs also made a claim against Puerto Rico police officers
López and Lebrón pursuant to 42 U.S.C. § 1983, but that claim was
dismissed by the district court on the ground that these defendants
were acting under color of federal law, rather than state law, as
federally deputized agents. That ruling is not at issue in this
interlocutory appeal.
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time, the individual defendants moved to dismiss the federal
constitutional claim on the grounds that plaintiffs' complaint did
not state a constitutional violation and, alternatively, that the
officers were entitled to qualified immunity. Plaintiffs did not
oppose the motion to dismiss. On March 25, 2004, the district
court issued an opinion and order denying the motion for
substitution and dismissal.
The issues before us in this interlocutory appeal are (1)
whether the district court erred by not substituting the United
States as the defendant for plaintiffs' damages claim based on
Puerto Rico law, and (2) whether the district court erred in
denying the individual agents qualified immunity from this Bivens
claim; this encompasses, as the first part of the immunity test,
whether a constitutional claim has been stated at all.
II.
A. Westfall Act Substitution
In the case below, the United States certified that the
individual defendants were acting within the scope of their federal
employment and moved to substitute itself for the individual
defendants pursuant to Section 6 of the Westfall Act, 28 U.S.C.
§ 2679(d).
"Under the Westfall Act, the Attorney General can certify
that a federal employee named as a defendant in a civil case was
'acting within the scope of his office or employment at the time of
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the incident' that serves as the basis for a tort claim against
that employee." Lyons v. Brown, 158 F.3d 605, 606 (1st Cir. 1998)
(quoting 28 U.S.C. § 2679(d)(1)). The Act provides that "[u]pon
certification . . . any civil action or proceeding commenced upon
such claim in a United States district court shall be deemed an
action against the United States . . . and the United States shall
be substituted as the party defendant." 28 U.S.C. § 2679(d)(1).
While certification is sufficient to substitute the United States
as defendant and dismiss the federal employees from the case, the
certification is "provisional and subject to judicial review."
Davric Me. Corp. v. United States Postal Serv., 238 F.3d 58, 65
(1st Cir. 2001) (citing Gutiérrez de Martínez v. Lamagno, 515 U.S.
417, 434 (1995)). Where plaintiffs are able to show that the
employees acted outside the scope of their employment, the
employees may be re-substituted as the party defendants. Davric,
238 F.3d at 65; Aversa v. United States, 99 F.3d 1200, 1208 (1st
Cir. 1996).
1. Jurisdiction
At the threshold, plaintiffs-appellees argue that the
United States does not have standing to appeal the district court's
denial because the United States is not a party to the suit and has
not attempted to intervene. We disagree. In addition to
recognizing "an exception to the only a party may appeal rule that
allows a nonparty to appeal the denial of a motion to intervene,"
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Microsystems Software, Inc. v. Scandinavia Online AB, 226 F.3d 35,
40 (1st Cir. 2000) (internal quotation marks omitted), this court
and others have entertained the United States' right to appeal
immediately from orders denying Westfall Act substitution. See,
e.g., Lyons, 158 F.3d at 606-07 (allowing interlocutory appeal of
district court order denying Westfall Act substitution brought by
both the United States and the individual defendant); Taboas v.
Mlynczak, 149 F.3d 576, 579 (7th Cir. 1998) (treating Westfall Act
immunity in the same fashion as qualified immunity in federal civil
rights actions, denials of which are customarily subject to
immediate interlocutory appeal).
Plaintiffs also argue that the district court's order
denying substitution is not yet ripe for appeal because the
government’s certification is not conclusive and plaintiffs require
discovery to challenge the certification.
While we agree that the government's certification is
subject to judicial review such that the individual agents might be
later re-instated as defendants in this case, see Davric, 238 F.3d
at 65; Aversa, 99 F.3d at 1208, this does not alter the fact that
the initial step "[u]pon certification" is that "any civil action
or proceeding commenced . . . in . . . district court shall be
deemed an action against the United States . . . and the United
States shall be substituted as the party defendant." 28 U.S.C.
§ 2679(d)(1).
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Plaintiffs contend that the word "shall" in 28 U.S.C.
§ 2679(d)(1), is not mandatory, citing Gutiérrez de Martínez, 515
U.S. at 432 n.9, which indicates in a footnote that the term
"shall" is sometimes used to mean "may." This reference by the
Supreme Court, however, merely explains that the certification does
not "conclusively establish as correct the substitution of the
United States as defendant in place of the employee." Id. at 434.
In Gutiérrez de Martínez, the Supreme Court, in a divided decision,
determined that the Attorney General's certification is not
conclusive and that district courts may review the certification of
scope of employment in light of plaintiffs' objections. This is
not irreconcilable with the process that has been established by
the courts -- that the United States is initially substituted upon
certification, and the defendants may be re-substituted later if
the court determines that they were not acting within the scope of
their federal employment.
Plaintiffs' stated intent to challenge the filing and
service of a certification in the appropriate form, and their need
for discovery to mount this challenge are irrelevant to this
interlocutory appeal. The United States and individual defendants
challenge the substance of the district court's denial of the
initial substitution of the United States upon certification, as
provided for in § 2679(d)(1). The possibility that the district
court may later determine that a federal employee was acting
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outside the scope of his or her employment, contrary to the
government's certification and should be "re-substituted," has no
bearing on the fact that the district court should have initially
substituted the United States as defendant "[u]pon certification."
Id.
For these reasons, we find that the United States has
standing to appeal the denial of Westfall Act substitution along
with the individual defendants.
2. Merits
The district court denied the motion to substitute the
United States on the basis of its conclusion that an exception to
substitution applied in this case because the plaintiffs asserted
a Bivens cause of action under the federal Constitution, in
addition to the state law claims. We find that the fact that this
case raises both state law and federal constitutional claims does
not render inapplicable the Westfall Act's requirement for the
substitution of the United States for the defendants with respect
to the state law claims.
Section 5 of the Westfall Act, 28 U.S.C. § 2679(b),
provides that the remedy against the United States under the
Federal Tort Claims Act (FTCA) for "personal injury or death
arising or resulting from the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of
his office or employment is exclusive of any other civil action or
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proceeding for money damages by reason of the same subject matter"
and shall "preclude[]" any other damages action "arising out of or
relating to the same subject matter." 28 U.S.C. § 2679(b)(1)
(emphases added). The second paragraph of Section 5 then provides
two exceptions to the exclusiveness of the remedy and preclusion of
other damage suits, including that "[p]aragraph (1) does not extend
or apply to a civil action against an employee of the Government
. . . which is brought for a violation of the Constitution of the
United States." Id. at § 2679(b)(2).
This exception for federal constitutional violations,
however, applies only to paragraph (1) of Section 5, id. § 2679
(b)(1), and not to the provision for substitution of the United
States "[u]pon certification by the Attorney General," which
appears in § 2679(d). Indeed, courts routinely order Westfall Act
substitution of the United States as the defendant for state law
claims when both state law and federal constitutional damage claims
are asserted against federal employees. See, e.g., Davric, 238
F.3d at 65 (affirming Westfall Act substitution only as to state
law claims where plaintiff also asserted Bivens claims against
federal employee); Aversa, 99 F.3d at 1206 (same).
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Thus, we find that the district court's failure to make
a partial substitution of the United States as party defendant as
to the state law claims was error.2
B. Bivens claim
The individual agents contend that the district court
should have dismissed plaintiffs' federal Bivens claim against the
agents because the individual agents are entitled to qualified
immunity. See Fed. R. Civ. P. 12(b)(6). We review the denial of
a motion to dismiss de novo, assuming plaintiffs' allegations are
true and making all reasonable inferences in favor of the
plaintiffs. See Garrett v. Tandy Corp., 295 F.3d 94, 97 (1st Cir.
2002).
1. Jurisdiction
Before reaching the merits, however, we must consider the
threshold issue of jurisdiction. This court would not normally
have interlocutory jurisdiction over the district court's denial of
the motion to dismiss for failure to state a constitutional
violation because it is not a "final decision" in the sense
required by 28 U.S.C. § 1291 (conferring appellate jurisdiction
over "final decisions" of the district courts). This issue,
2
While the United States argued below that the FTCA claim against
it should be dismissed once the government is substituted as the
defendant party, that issue is not before this court. Our
jurisdiction over this interlocutory appeal extends only to the
collateral order denying the United States' request for party
status through substitution.
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however, is the first question courts must answer when considering
a claim qualified immunity. We will, therefore, address this issue
in our qualified immunity analysis.
Appellate courts have jurisdiction over interlocutory
appeals from denials of qualified immunity where "the denial rests
on purely legal questions and not on disputed issues of fact."
Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 60 (1st Cir. 2004).
"The Supreme Court has held that the denial of a dispositive motion
bottomed on qualified immunity cannot support an interlocutory
appeal if the controlling question is 'whether or not the pretrial
record sets forth a genuine issue of fact for trial.'" Camilo-
Robles v. Zapata, 175 F.3d 41, 45 (1st Cir. 1999) (quoting Johnson
v. Jones, 515 U.S. 304, 319-20 (1995)). However, where the
"operative question is purely legal in nature," the denial of a
proffered qualified immunity defense remains immediately appealable
as a collateral order. Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st
Cir. 1998) (citing Johnson, 515 U.S. at 319); accord Stella v.
Kelley, 63 F.3d 71, 74 (1st Cir. 1995).
Plaintiffs contend that the individual defendants do not
have standing to appeal the district court's denial of defendants'
motion to dismiss because the district court found that material
questions of fact remain on the issue of whether the defendants
should be granted qualified immunity. The district court
determined that there is a disputed factual issue as to whether
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defendants' actions were sufficiently reckless to rise to the level
of a constitutional violation and thus declined to grant qualified
immunity without further fact-finding.
Defendants appeal the district court's rejection of their
argument that, as a matter of law, the facts alleged by the
plaintiffs cannot amount to a violation of substantive due process
under clearly established law. In other words, defendants-
appellants frame the issue of whether plaintiffs have stated a
claim upon which relief may be granted as a purely legal rather
than factual issue. We therefore find that appellate jurisdiction
exists over the qualified immunity issue.
2. Merits
The justification for the qualified immunity doctrine is
that "public officials performing discretionary functions should be
free to act without fear of retributive suits for damages except
when they should have understood that particular conduct was
unlawful." Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004).
Thus, the Supreme Court has held that qualified immunity "is an
immunity from suit rather than a mere defense to liability" and "it
is effectively lost if a case is erroneously permitted to go to
trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Determining whether officials are entitled to qualified
immunity involves a three-part test. See Rivera-Jiménez v.
Pierluisi, 362 F.3d 87, 93 (1st Cir. 2004). First, we must ask:
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"'Taken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer's conduct violated a
constitutional right?'" Riverdale Mills Corp. v. Pimpare, 392 F.3d
55, 61 (1st Cir. 2004) (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)). Second, we ask "'whether the right was clearly
established at the time of the alleged violation' such that a
reasonable officer would 'be on notice that [his] conduct [was]
unlawful.'" Id. (quoting Suboh v. Dist. Attorney's Office, 298
F.3d 81, 90 (1st Cir. 2002)) (brackets in original). Finally, we
must determine "whether a 'reasonable officer, similarly situated,
would understand that the challenged conduct violated' the clearly
established right at issue." Id. (quoting Suboh, 298 F.3d at 90).
Defendants' qualified immunity defense was brought
pursuant to Federal Rule of Civil Procedure 12(b)(6) in a motion
for failure to state a claim upon which relief may be granted. The
qualified immunity analysis must, therefore, be based solely on the
facts stated in plaintiffs' complaint. Riverdale Mills, 392 F.3d
at 61.
At the threshold, we consider whether the allegations,
taken in the light most favorable to the plaintiffs, could support
a conclusion that the individual agents violated Vélez's
constitutional rights. At this stage of the inquiry, "courts must
not define the relevant constitutional right in overly general
terms, lest they strip the qualified immunity defense of all
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meaning." Butera v. District of Columbia, 235 F.3d 637, 646-50
(D.C. Cir. 2001) (citing Anderson v. Creighton, 483 U.S. 635, 639
(1987)).
Plaintiffs alleged that Vélez's murder was a direct
result of defendants' failure to follow unspecified FBI and local
police regulations concerning the handling of informants and
witnesses cooperating with the government. Thus, plaintiffs
asserted a Bivens claim alleging a violation of Fifth Amendment
substantive due process. Defendants countered that there can be no
Due Process violation when the government fails to protect an
individual from private violence and, therefore, the Bivens claim
should be dismissed. The district court acknowledged that
"negligent or even wilfully reckless state action will not create
a constitutional violation when the government was only causally
connected to the harm." Vélez-Díaz v. Vega-Irizarry, No. 04-1773,
slip op. at 10 (D.P.R. Mar 25, 2004) (citing Monahan v. Dorchester
Counseling Ctr., Inc., 961 F.2d 987, 993 (1st Cir. 1992)).
Nevertheless, the district court concluded that plaintiffs
sufficiently pled a violation of substantive due process based on
the court's view that the agents failed to protect Vélez after
their actions and omissions rendered him "more vulnerable to
peril." Id.
The Due Process Clause applies only to governmental
deprivations of life, liberty, or property and thus provides no
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guarantee of government protection from harms caused by private
parties. See U.S. Const. amend. V. ("No person shall . . . be
deprived of life, liberty, or property, without due process of
law."). This court has held that to establish a substantive due
process claim plaintiffs must first establish a deprivation of a
"protected interest" in life, liberty, or property. Rivera v.
Rhode Island, 402 F.3d 27, 33-34 (1st Cir. 2005); accord Washington
v. Glucksberg, 521 U.S. 702, 722 (1997) (finding identification of
a fundamental right is a "threshold requirement" in establishing a
due process violation). In this case, Vélez's relatives allege
that Vélez was deprived of his life as a result of the agents'
inaction, and Vélez's life is a protected interest.
Plaintiffs must also show that the deprivation of the
protected right was caused by government conduct. It is well-
settled that the due process provision of the Fifth Amendment
serves as a limitation only on governmental, not private, action.
See Gerena v. P. R. Legal Servs., Inc., 697 F.2d 447, 449 (1st Cir.
1983) (citing Pub. Utils. Comm'n v. Pollak, 343 U.S. 451, 461
(1952)). When a government official himself inflicts harm upon an
individual or his property, that action can constitute a
deprivation of a protected interest if the official's conduct
shocks the conscience. See Martínez v. Colón, 54 F.3d 980, 986
(1st Cir. 1995) ("To be sure, violence is attributable to state
action if the perpretrator is acting under color of state law.");
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cf. Cummings v. McIntire, 271 F.3d 341, 344-47 (1st Cir. 2001)
(unnecessary and hard shove with abusive language by officer not
conscience-shocking absent intent to harm). In this case, however,
the person who shot Vélez was clearly a private actor.
Nevertheless, in scenarios in which government officials
actively direct or assist private actors in causing harm to an
individual, some courts have treated the government's involvement
as amounting to government conduct. For example, "if the police
had handed [Gómez] the gun with instruction to shoot [Vélez], cf.
Hemphill v. Schott, 141 F.3d 412, 418-19 (2d Cir. 1998), or assured
[Gómez] that he could attack [Vélez] with impunity, cf. Dwares v.
City of New York, 985 F.2d 94, 96-97 (2d Cir. 1993)," these actions
may constitute government conduct. Rivera, 402 F.3d at 34. In
such scenarios, the government officials and the private actor are
essentially "joint tortfeasors, and therefore, may incur shared
constitutional responsibility." Martínez v. Colón, 54 F.3d 980,
985 n.4 (1st Cir. 1995). However, there is no claim of such joint
enterprise here. In this case, plaintiffs claim that the
government involvement was a creation of risk and then a failure to
protect against that risk.
Outside contexts in which the action of government
officials (or their joint tortfeasors) injure citizens, this court
has been careful to limit substantive due process to the parameters
articulated by the Supreme Court in DeShaney v. Winnebago County
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Department of Social Services, 489 U.S. 189, 197 (1989). There,
the Supreme Court stated that "[a]s a general matter . . . a
State's failure to protect an individual against private violence
simply does not constitute a violation of the Due Process Clause."
Id. at 197.
The DeShaney Court also recognized a limited exception to
this rule which applies to circumstances in which the government
has a "special relationship" with the individual because government
action has deprived that individual of the liberty needed to
protect himself. Id. at 200. In such situations a constitutional
duty to protect may arise. "The affirmative duty to protect arises
not from the State's knowledge of the individual's predicament or
from its expressions of intent to help him, but from the limitation
which it has imposed on his freedom to act on his own behalf." Id.
"This court has recognized that this [special] relationship, and
thus a constitutional duty, may exist when the individual is
incarcerated or is involuntarily committed to the custody of the
state." Rivera, 402 F.3d at 34 (citing Monahan, 961 F.2d at 991-
92).
Plaintiffs in this case, however, have not identified a
custodial relationship between Vélez and the agents that
constitutes a "special relationship" creating an affirmative
constitutional duty to protect. Vélez was not in custody or
involuntarily committed while he was acting as an informant for the
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federal agents, but rather was free to decline to cooperate further
with the agents at any point.
In addition to the special "custodial" relationships, the
DeShaney Court suggested, but never expressly recognized, the
possibility that liability might arise where the state creates or
substantially contributes to the creation of a danger.
Specifically, the Supreme Court stated that "[w]hile the State may
have been aware of the dangers . . . it played no part in their
creation, nor did it do anything to render him more vulnerable to
them." DeShaney, 489 U.S. at 201 (emphasis added).
Most of the circuit courts have now acknowledged that the
existence of a constitutional violation is possible, on particular
facts, under a "state-created danger" theory of liability. See
Butera, 235 F.3d at 648-51 (joining other circuits "in holding
that, under the State endangerment concept, an individual can
assert a substantive due process right to protection by [state]
from third-party violence when [state] officials affirmatively act
to increase or create the danger that ultimately results in the
individual's harm"). See, e.g., Kallstrom v. City of Columbus, 136
F.3d 1055, 1066-67 (6th Cir. 1998) (holding that the City of
Columbus's release of information from undercover officers' files
to defense counsel, which substantially increased the vulnerability
of the officers to private acts of vengeance, created a
constitutionally cognizable state-created danger); Wood v.
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Ostrander, 879 F.2d 583, 589-90 (9th Cir. 1989) (holding that
plaintiff raised a genuine factual dispute whether state trooper
deprived her of a constitutional liberty interest by abandoning
her, after impounding her vehicle, at night in a high-crime area,
resulting in her rape by a stranger from whom she accepted a ride).
The Fifth Circuit, however, has flatly rejected the
"state-created danger" theory of liability. See Beltrán v. City of
El Paso, 367 F.3d 299, 307 (5th Cir. 2004).
"This court has, to date, discussed the state created
danger theory, but never found it actionable on the facts alleged."
Rivera, 402 F.3d at 35 (collecting cases).3
In determining whether Vélez's relatives have alleged a
substantive due process violation, we keep in mind that "in a state
creation of risk situation, where the ultimate harm is caused by a
third party, 'courts must be careful to distinguish between
conventional torts and constitutional violations, as well as
3
This court recently noted that
[i]t is not clear from the "creation of danger" language
in DeShaney whether a state action which enhances or
creates danger to an individual would provide a separate
exception to the general rule of no duty to protect, or
whether the language is simply in service of the special
relationship exception and provides a set of
circumstances where the state's actions might create a
"special relationship" and thus a duty to protect.
Rivera, 402 F.3d at 35 n.5.
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between state inaction and action." Id. at 36 (quoting Soto v.
Flores, 103 F.3d 1056, 1064 (1st Cir. 1997)).
We hold that plaintiffs have not alleged facts to support
a claim based on the state created danger theory. Plaintiffs'
theory may be that the government owes a duty to all cooperating
witnesses to protect them from harm. There are risks inherent in
being a cooperating witness, but the state does not create those
dangers, others do, and the witness voluntarily assumes those
risks. See Summar v. Bennett, 157 F.3d 1054, 1059 & n.2 (6th Cir.
1998).
We leave open the question whether, nonetheless, the
state may violate substantive due process as to cooperating
witnesses if it takes certain actions, such as sending a
cooperating witness to what the state knows would be his certain
death. Such action may shock the conscience by demonstrating
"deliberate indifference." See Butera, 235 F.3d at 652. This case
does not come close. There is no allegation the government knew
Vélez would be murdered. At most, the allegation is that Vélez
said that he was tired, not that he said he was under imminent
risk. The attempt to show a substantive due process violation
based on a claim that some yet unknown regulation required the
state to promptly remove "tired" cooperating witnesses fails.
Plaintiffs have therefore failed to carry their burden
under the threshold inquiry for qualified immunity. Absent a
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showing that the agents' conduct violated a constitutional right,
qualified immunity applies.
III.
For the reasons stated, the order of the district court
is reversed and the case is remanded for further proceedings
consistent with this opinion.
Reversed and Remanded.
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