REVISED NOVEMBER 8, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-60256
_____________________
PETER CLAYTON MCCLENDON
Plaintiff-Appellant
v.
CITY OF COLUMBIA; ET AL
Defendants
CITY OF COLUMBIA; JAMES R CARNEY
Defendants-Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
September 5, 2002
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, PARKER, DENNIS and CLEMENT, Circuit Judges.
PER CURIAM:*
In July 1993, Defendant-Appellee Detective James Carney, a
City of Columbia police detective, loaned a gun to Kevin Loftin,
an informant for the Columbia Police Department, to enable Loftin
*
This opinion is joined by Chief Judge King and Circuit Judges
Jolly, Higginbotham, Davis, Jones, Smith, Barksdale, Benavides, Stewart,
Dennis and Clement.
1
to protect himself from Plaintiff-Appellant Peter McClendon.
Loftin subsequently used the gun to shoot McClendon. A panel of
this court held that Detective Carney thereby violated
McClendon’s substantive due process rights and that the
unconstitutionality of Detective Carney’s conduct was clearly
established at the time of his actions. See McClendon v. City of
Columbia, 258 F.3d 432, 441-43 (5th Cir. 2001), vacated and reh’g
en banc granted, 285 F.3d 1078 (5th Cir. 2002). We took this
case en banc to determine whether the panel’s conclusions were
correct. En banc review is also warranted to resolve conflicting
panel decisions addressing when a principle of law should be
deemed “clearly established” in the context of qualified immunity
analysis. Because under the facts established by the summary
judgment record, viewed in the light most favorable to McClendon,
there is no constitutional violation, we find that Detective
Carney is entitled to qualified immunity. We further find, in
the alternative, that even if those facts did establish a
constitutional violation under current law, Detective Carney is
nonetheless entitled to qualified immunity because his conduct
was not objectively unreasonable in light of the law that was
clearly established at the time of his actions. Accordingly, we
AFFIRM the district court’s summary judgment in favor of
Detective Carney on qualified immunity grounds. In addition, we
AFFIRM the district court’s summary judgment in favor of
2
Defendant-Appellee the City of Columbia, reinstating the portion
of the panel opinion addressing this aspect of the district
court’s judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Because the district court awarded summary judgment to the
Defendants-Appellees, we view the facts in the light most
favorable to Plaintiff-Appellant Peter McClendon. See Stults v.
Conoco, Inc., 76 F.3d 651, 654 (5th Cir. 1996). Between May of
1992 and December of 1993, Defendant-Appellee Detective James
Carney (“Detective Carney”) paid Kelvin Loftin to serve as an
informant for the Columbia Police Department (the “CPD”). Loftin
assisted Detective Carney and the CPD with drug enforcement
investigations. During the week prior to July 12, 1993, Loftin
spoke to Detective Carney about a conflict that had developed
between Loftin and McClendon. Specifically, Loftin feared that
McClendon might retaliate against Loftin for supplying a gun to
an individual who subsequently shot McClendon’s friend. Loftin
told Detective Carney that McClendon was “fixing to try
[Loftin],” and that the situation between the two men was at a
“boiling point.” Upon hearing about the situation, Detective
Carney loaned Loftin a handgun so that Loftin could protect
himself from McClendon. This handgun, which Detective Carney
retrieved from his desk drawer, was apparently seized by the CPD
as evidence in an unrelated investigation.
3
On the evening of July 12, 1993, McClendon and Loftin
encountered each other (apparently by chance) at the Hendrix
Street Apartments, where Loftin was staying. An altercation
ensued, and Loftin shot McClendon in the face with the handgun
that Loftin had obtained from Detective Carney. McClendon is now
permanently blind as a result of the incident.
On July 11, 1996, McClendon filed the instant 42 U.S.C.
§ 1983 action in federal district court against Detective Carney,
the CPD, the City of Columbia (“the City”), City of Columbia
Mayor Harold Bryant (“Mayor Bryant”), and CPD Chief of Police Joe
Sanders (“Chief Sanders”) (collectively, “the Defendants”).1 The
complaint alleges that the Defendants violated McClendon’s due
process rights under the Fourteenth Amendment by knowingly and
affirmatively creating a dangerous situation that resulted in
injury to McClendon and by failing to take reasonable steps to
diffuse this danger.2 Regarding Detective Carney, the complaint
specifically contends that in providing Loftin with a handgun,
Detective Carney “created a serious danger” that “caused Peter
McClendon harm and violated McClendon’s due process rights.”
Regarding the City, the complaint further alleges: (1) that the
City had a custom or practice of allowing unabated access to
1
Detective Carney, Mayor Bryant, and Chief Sanders were sued in
both their individual and official capacities.
2
The CPD, Mayor Bryant, and Chief Sanders were subsequently
voluntarily dismissed as defendants.
4
evidence and evidence storage areas, which custom or practice
proximately caused McClendon’s injury by allowing Detective
Carney to provide Loftin with the handgun used in the assault;
and (2) that the City’s failure to train Detective Carney
regarding the use of informants displayed deliberate indifference
to McClendon’s rights and proximately caused McClendon’s injury.
On December 31, 1998, Detective Carney moved for summary
judgment, arguing that he did not violate McClendon’s
constitutional rights because his actions did not create the
danger which resulted in McClendon’s injuries. Detective Carney
alternatively argued that he was entitled to qualified immunity
from the suit because the unlawfulness of his actions was not
clearly established as of July 12, 1993.
On April 20, 1999, the district court granted summary
judgment to Detective Carney, holding that McClendon had not
stated a viable constitutional claim. The court rejected
McClendon’s attempt to seek recovery from the state for injuries
inflicted by a private actor under a “state-created danger”
theory, explaining that the Fifth Circuit had not sanctioned such
a theory of substantive due process liability. The court also
found that, even if McClendon could maintain a viable
constitutional claim based on a state-created danger theory, this
claim would fail because Detective Carney “did not affirmatively
place McClendon in a position of danger, stripping him of his
5
ability to defend himself, and he did not cut off McClendon’s
potential sources of private aid.” In the alternative, the
district court determined that Detective Carney was entitled to
qualified immunity from suit because his conduct was “objectively
reasonable under the circumstances in light of clearly
established law” in July of 1993.
McClendon attempted to appeal from this April 20, 1999
order, but this appeal was dismissed because McClendon’s claims
against the City had not yet been adjudicated. The City
subsequently obtained permission from the district court to file
a motion for summary judgment out of time. The City filed this
motion on November 2, 1999, arguing that McClendon had not shown
a city policy or custom that produced his injury and had not
shown that the City acted with deliberate indifference to his
safety. On March 6, 2000, the district court granted summary
judgment to the City, finding: (1) that McClendon had not pled
the facts of his “dangerous custom or practice” claim with
sufficient particularity and, alternatively, had not demonstrated
a custom or practice (as opposed to an isolated incident) that
resulted in a deprivation of federal rights; and (2) that
McClendon had not properly established the elements of an
“inadequate training” claim under Gabriel v. City of Plano
because he failed to provide proof of “the possibility of
recurring situations that present an obvious potential for
6
violation of constitutional rights and the need for additional or
different police training.” Gabriel, 202 F.3d 741, 745 (5th Cir.
2000).
McClendon appealed the district court’s summary judgments in
favor of Detective Carney and the City. A panel of this court
affirmed the summary judgment in favor of the City,3 but reversed
the summary judgment in favor of Detective Carney, finding that
McClendon could state a viable substantive due process claim if
Detective Carney used his authority to engage in affirmative
conduct (1) that he knew would create a danger to McClendon,
increase a danger to McClendon, or make McClendon more vulnerable
to a pre-existing danger, and (2) that was causally connected to
McClendon’s injuries. See McClendon, 258 F.3d at 435, 438. The
panel determined that McClendon had adduced sufficient evidence
to create a genuine issue of material fact suggesting that
Detective Carney had violated McClendon’s constitutional rights.
The panel acknowledged that Detective Carney would
nonetheless be entitled to qualified immunity if his conduct was
objectively reasonable in light of the law that was clearly
established at the time of his actions. Id. at 438. The panel
also implicitly acknowledged that neither the Supreme Court nor
3
Because the portion of the panel opinion affirming summary
judgment in favor of the City is soundly reasoned and does not implicate the
same unsettled questions of law as the portions of that opinion addressing the
claims against Detective Carney, we REINSTATE that portion of the panel
opinion affirming summary judgment in favor of the City. See McClendon v.
City of Columbia, 258 F.3d 432, 441-43 (5th Cir. 2001).
7
this court had expressly sanctioned any “state-created danger”
theory as of July 1993, when the relevant events took place. Id.
at 435, 438. However, the panel found that this court’s
discussion of the state-created danger theory in Salas v.
Carpenter, 980 F.2d 299, 309-10 (5th Cir. 1992), combined with
(1) the fact that several circuits had explicitly adopted the
state-created danger theory prior to 1993, and (2) the fact that
no circuit had explicitly rejected the state-created danger
theory prior to 1993, was sufficient to render that theory
“clearly established” in July of 1993.4 Concluding that clearly
established law put Detective Carney on notice that “a state
actor creating a danger, knowing of that danger, and using his
authority to create an opportunity for a third person to commit a
crime that otherwise might not have existed was subject to
liability for a violation of the victim’s rights” resulting from
that danger, the panel found that Detective Carney’s actions were
4
Relying on Melear v. Spears, the panel explained that this court
is not limited to examining only its own precedent and Supreme Court precedent
in determining whether a principle of law was clearly established. See 862
F.2d 1177, 1184 n.8 (5th Cir. 1989) (“As a general proposition, we will not
rigidly define the applicable body of law in determining whether relevant
legal rules were clearly established at the time of the conduct at issue.
Relying solely on Fifth Circuit and Supreme Court cases, for example, would be
excessively formalistic, but they will loom largest in our inquiries.”)
(internal citation omitted). Thus, the panel found that a theory not
explicitly adopted by this court could nonetheless constitute clearly
established law based on “overwhelming authority” from other circuits at the
time in question. This discussion in Melear is in tension with our subsequent
decision in Shipp v. McMahon, which holds that this court’s inquiry into
whether a principle of law was clearly established is “confined to precedent
from our circuit or the Supreme Court.” 234 F.3d 907, 915 (5th Cir. 2000)
(citing Boddie v. City of Columbus, 989 F.2d 745, 748 (5th Cir. 1993)).
8
unreasonable in light of clearly established law, and that he was
not entitled to qualified immunity. McClendon, 258 F.3d at 441.
To assess the correctness of the panel’s holdings and to
resolve the conflict in our circuit authority addressing what
constitutes “clearly established law” for the purposes of
qualified immunity analysis, we granted Carney’s request to
rehear the case en banc. We review the district court’s grant of
summary judgment in favor of Detective Carney de novo, applying
the same standard as the district court. See Rivers v. Cent. &
S.W. Corp., 186 F.3d 681, 683 (5th Cir. 1999). Summary judgment
is appropriate if no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(c).
II. THE QUALIFIED IMMUNITY FRAMEWORK
Section 1983 provides a cause of action for individuals who
have been “depriv[ed] of any rights, privileges, or immunities
secured by the Constitution and laws” of the United States by a
person or entity acting under color of state law. 42 U.S.C.
§ 1983 (1994). In the instant case, McClendon claims that
Detective Carney violated McClendon’s right to bodily integrity
under the substantive component of the Due Process Clause of the
Fourteenth Amendment because Carney’s affirmative misconduct
9
enhanced the risk of harm to McClendon.5 Specifically, McClendon
argues: (1) that Detective Carney knowingly and affirmatively
created a dangerous situation by providing Loftin with a gun; (2)
that Detective Carney failed to take any reasonable steps to
diffuse the danger; and (3) that Detective Carney abused his
authority by creating an opportunity for Loftin to harm McClendon
that would not otherwise have existed.
Detective Carney maintains that he is entitled to summary
judgment because he is shielded from liability by the doctrine of
qualified immunity. In Harlow v. Fitzgerald, the Supreme Court
established that “government officials performing discretionary
functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.” 457 U.S. 800, 818 (1982). The Court
subsequently clarified in Siegert v. Gilley, 500 U.S. 226, 232-34
(1991) that courts evaluating § 1983 claims based on allegedly
unconstitutional conduct by state actors should conduct a two-
prong inquiry to determine whether the state actors are entitled
to qualified immunity. “[T]he first inquiry must be whether a
5
This substantive component of the Fourteenth Amendment’s Due
Process Clause “protects individual liberty against ‘certain government
actions regardless of the fairness of the procedures used to implement them.’”
Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels
v. Williams, 474 U.S. 327, 331 (1986)). This court has recognized a
substantive due process right to be free from state-occasioned damage to a
person’s bodily integrity in certain contexts. See, e.g., Doe v. Taylor
Indep. Sch. Dist., 15 F.3d 443, 450-51 (5th Cir. 1994) (en banc).
10
constitutional right would have been violated on the facts
alleged.” Saucier v. Katz, 533 U.S. 194, 200 (2001). “[I]f a
violation could be made out on a favorable view of the parties’
submissions, the next sequential step is to ask whether the right
was clearly established.” Id. at 201. Ultimately, a state actor
is entitled to qualified immunity if his or her conduct was
objectively reasonable in light of the legal rules that were
clearly established at the time of his or her actions. See
Wilson v. Layne, 526 U.S. 603, 614 (1999) (citing Anderson v.
Creighton, 483 U.S. 635, 639 (1987)).
When a defendant invokes qualified immunity, the burden is
on the plaintiff to demonstrate the inapplicability of the
defense. See Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d
481, 489 (5th Cir. 2001). Because qualified immunity constitutes
an “immunity from suit rather than a mere defense to liability,”
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in
original), the defense is intended to give government officials a
right not merely to avoid standing trial, but also to avoid the
burdens of “such pretrial matters as discovery . . . as
‘[i]nquiries of this kind can be peculiarly disruptive of
effective government.’” Id. (quoting Harlow, 457 U.S. at 817)
(alterations in original). Thus, adjudication of qualified
immunity claims should occur “at the earliest possible stage in
litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991).
11
However, “the legally relevant factors bearing upon the Harlow
question will be different on summary judgment than on an earlier
motion to dismiss.” Behrens v. Pelletier, 516 U.S. 299, 309
(1996). At the earlier stage, “it is the defendant’s conduct as
alleged in the complaint that is scrutinized for “objective legal
reasonableness.” Id. “On summary judgment, however, the
plaintiff can no longer rest on the pleadings . . . and the court
looks to the evidence before it (in the light most favorable to
the plaintiff) when conducting the Harlow inquiry.” Id.
In the instant case, Detective Carney raised the defense of
qualified immunity in a motion for summary judgment after
significant discovery. Accordingly, this court’s task is to
examine the summary judgment record and determine whether
McClendon has adduced sufficient evidence to raise a genuine
issue of material fact suggesting (1) that Detective Carney’s
conduct violated an actual constitutional right; and (2) that
Detective Carney’s conduct was objectively unreasonable in light
of law that was clearly established at the time of his actions.
III. DID DETECTIVE CARNEY’S CONDUCT VIOLATE AN ACTUAL
CONSTITUTIONAL RIGHT?
In assessing whether the facts alleged demonstrate a
constitutional violation, we analyze the law using “the currently
applicable . . . standards.” Hare v. City of Corinth, 135 F.3d
320, 326 (5th Cir. 1998) (quoting Rankin v. Klevenhagen, 5 F.3d
103, 106 (5th Cir. 1993)) (internal quotations omitted).
12
McClendon claims that Detective Carney violated McClendon’s right
to bodily integrity under the substantive component of the Due
Process Clause of the Fourteenth Amendment. While McClendon does
not allege that Detective Carney directly injured McClendon in
any way, McClendon maintains that Detective Carney’s actions were
nonetheless unconstitutional because Carney’s conduct enhanced
the risk that McClendon would be harmed by a private actor (i.e.,
Loftin).
Ordinarily, a state official has no constitutional duty to
protect an individual from private violence. See DeShaney v.
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989)
(holding that, as 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”). In DeShaney, however,
the Court clarified that this general rule is not absolute: “in
certain limited circumstances the Constitution imposes upon the
State affirmative duties of care and protection with respect to
particular individuals.” Id. at 198. When the state, through
the affirmative exercise of its powers, acts to restrain an
individual’s freedom to act on his own behalf “through
incarceration, institutionalization, or other similar restraint
of personal liberty,” the state creates a “special relationship”
between the individual and the state which imposes upon the state
a constitutional duty to protect that individual from dangers,
13
including, in certain circumstances, private violence. Id. at
200.
A number of courts have read the Court’s opinion in DeShaney
to suggest a second exception to the general rule against state
liability for private violence. DeShaney involved a § 1983
action brought on behalf of a child against state social workers.
The child, who suffered serious injuries as a result of parental
abuse, alleged that the social workers had violated his
substantive due process rights because they were aware of the
probability of abuse and failed to intervene to protect him or
remove him from his father’s home. Id. at 191. In rejecting
this claim on the ground that there was no “special relationship”
between the child and the state, the Supreme Court also noted
that, “[w]hile the State may have been aware of the dangers that
[the child] faced in the free world, it played no part in their
creation, nor did it do anything to render him any more
vulnerable to them.” Id. at 201 (emphasis added). Many of our
sister circuits have read this language to suggest that state
officials can have a duty to protect an individual from injuries
inflicted by a third party if the state actor played an
affirmative role in creating or exacerbating a dangerous
situation that led to the individual’s injury. Those courts
accepting some version of this “state-created danger” theory have
14
applied the exception in a variety of factual contexts,6 and have
adopted a variety of tests in expounding the theory.7 While this
6
See, e.g., Butera v. District of Columbia, 235 F.3d 637, 651 (D.C.
Cir. 2001) (adopting the state-created danger theory, but rejecting a § 1983
claim brought against a police department and individual officers on behalf of
an individual who was shot while working as an undercover operative for the
department); Kallstrom v. City of Columbus, 136 F.3d 1055, 1066-67 (6th Cir.
1998) (adopting the state-created danger theory in the context of a § 1983
claim brought by undercover police officers alleging that city officials
released personal information from their personnel files to the drug
conspirators that the officers were investigating); Kneipp v. Tedder, 95 F.3d
1199, 1201, 1208 (3d Cir. 1996) (adopting the state-created danger theory in
the context of a § 1983 claim brought against a city and police officers on
behalf of a woman who suffered brain damage when the officers allegedly left
her alone to walk home on a cold night while she was intoxicated); Uhlrig v.
Harder, 64 F.3d 567, 572 (10th Cir. 1995) (accepting the state-created danger
theory, but rejecting a § 1983 claim brought against state mental health
officials on behalf of an activity therapist who was killed by a mental
hospital patient); Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993)
(adopting the state-created danger theory in the context of a § 1983 claim
brought by motorists who were injured in an automobile collision with an
allegedly drunk driver against police officers who had previously failed to
arrest the driver); Dwares v. City of New York, 985 F.2d 94, 98-99 (2d Cir.
1993) (adopting the state-created danger theory in the context of a § 1983
claim brought by demonstrators against police officers who allegedly conspired
to permit a group of “skinheads” to assault the demonstrators with impunity);
Freeman v. Ferguson, 911 F.2d 52, 54-55 (8th Cir. 1990) (adopting the state-
created danger theory in the context of a § 1983 claim brought on behalf of a
woman killed by her estranged husband against a police chief who allegedly
directed his officers to ignore her pleas for police assistance); Cornelius v.
Town of Highland Lake, 880 F.2d 348, 356 (11th Cir. 1989) (overruled on other
grounds by White v. Lemacks, 183 F.3d 1253, 1256 (11 Cir. 1999)) (adopting the
state-created danger theory in the context of a § 1983 claim brought against
town and prison officials by a town clerk who was abducted and terrorized by
prison inmates assigned to a community work program); Wood v. Ostrander, 879
F.2d 583, 590 (9th Cir. 1989) (adopting the state-created danger theory in the
context of a § 1983 claim brought against police officers by the passenger of
an impounded vehicle who was raped after officers allegedly abandoned her on
the side of the road).
7
See, e.g., Kallstrom, 136 F.3d at 1066 (“Liability under the
state-created-danger theory is predicated upon affirmative acts by the state
which either create of increase the risk that an individual will be exposed to
private acts of violence. . . . [W]e require plaintiffs alleging a
constitutional tort under § 1983 to show “special danger” in the absence of a
special relationship between the state and either the victim or the private
tortfeasor. The victim faces “special danger where the state’s actions place
the victim specifically at risk, as distinguished from a risk that affects the
public at large.”); Kneipp, 95 F.3d at 1208 (“[C]ases predicating
constitutional liability on a state-created danger theory have four common
elements: (1) the harm ultimately caused was foreseeable and fairly direct;
(2) the state actor acted in willful disregard for the safety of the
plaintiff;(3) there existed some relationship between the state and the
15
court has recognized the validity of the “special relationship”
exception to the general DeShaney rule that state officials have
no constitutional duty to protect individuals from private
violence, see, e.g., Walton v. Alexander, 44 F.3d 1297, 1299 (5th
Cir. 1995), we have not yet determined whether a state official
has a similar duty to protect individuals from state-created
dangers, see, e.g., Piotrowski v. City of Houston (“Piotrowski
II”), 237 F.3d 567, 584 (5th Cir. 2001) (noting that this court
has never adopted the state-created danger theory); Randolph v.
Cervantes, 130 F.3d 727, 731 (5th Cir. 1997) (same).
Regardless of the theory of liability that a plaintiff is
pursuing, in order to state a viable substantive due process
claim the plaintiff must demonstrate that the state official
acted with culpability beyond mere negligence. The Supreme
Court’s discussions of abusive executive action have repeatedly
emphasized that “only the most egregious official conduct can be
plaintiff; (4) the state actors used their authority to create an opportunity
that otherwise would not have existed for the third party’s crime to occur.”)
(quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995))
(internal quotations omitted); Uhlrig, 64 F.3d at 574 (“Plaintiff must
demonstrate that (1) [he] was a member of a limited and specifically definable
group; (2) Defendants’ conduct put [him] and the other members of that group
at substantial risk of serious, immediate and proximate harm; (3) the risk was
obvious or known; (4) Defendants acted recklessly in conscious disregard of
that risk; and (5) such conduct, when viewed in total, is conscience
shocking.”); Reed, 986 F.2d at 1126 (“[P]laintiffs . . . may state claims for
civil rights violations if they allege state action that creates, or
substantially contributes to the creation of, a danger or renders citizens
more vulnerable to a danger than they otherwise would have been.”); Freeman,
911 F.2d at 55 (“[A] constitutional duty to protect an individual against
private violence may exist in a non-custodial setting if the state has taken
affirmative action which increased the individual’s danger of, or
vulnerability to, such violence beyond the level it would have been absent
state action.”).
16
said to be arbitrary in the constitutional sense.” County of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting Collins,
503 U.S. at 129) (internal quotations omitted). The Court has
“spoken of the cognizable level of executive abuse of power as
that which shocks the conscience.” Id. In elaborating on “the
constitutional concept of conscience shocking,” the Court has
“made it clear that the due process guarantee does not entail a
body of constitutional law imposing liability whenever someone
cloaked with state authority causes harm.” Id. at 848.
“[L]iability for negligently inflicted harm is categorically
beneath the threshold of constitutional due process.” Id.
Consistent with these principles, courts applying both the
“special relationship” exception to the DeShaney rule and the
“state-created danger” exception to the DeShaney rule have
generally required plaintiffs to demonstrate (or, at the motion-
to-dismiss stage, to allege) that the defendant state official at
a minimum acted with deliberate indifference toward the
plaintiff.8 See, e.g., Butera v. District of Columbia, 235 F.3d
637, 652 (D.C. Cir. 2001) (state-created danger); Nicini v.
Morra, 212 F.3d 798, 810 (3d Cir. 2000) (special relationship);
8
To act with deliberate indifference, a state actor must “know[] of
and disregard[] an excessive risk to [the victim’s] health or safety.”
Ewolski v. City of Brunswick, 287 F.3d 492, 513 (6th Cir. 2002) (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)) (internal quotations omitted).
The state actor’s actual knowledge is critical to the inquiry. A state
actor’s failure to alleviate “a significant risk that he should have perceived
but did not,” while “no cause for commendation,” does not rise to the level of
deliberate indifference. Farmer, 511 U.S. at 837.
17
Huffman v. County of Los Angeles, 147 F.3d 1054, 1059 (9th Cir.
1998) (state-created danger).
Our examination of the summary judgment record reveals (in
accordance with the conclusion of the district court) that
McClendon has not adduced any evidence suggesting that Detective
Carney acted with anything other than ordinary negligence in the
instant case. While Detective Carney was informed that McClendon
potentially posed a threat to Loftin’s safety, there is no
indication that Detective Carney was aware that Loftin had any
violent intentions toward McClendon. Indeed, Loftin had no
criminal history and had a longstanding, positive working
relationship with Detective Carney as a confidential informant.
Moreover, given that Detective Carney had no reason to anticipate
that Loftin and McClendon would have a chance encounter at the
Hendrix Street Apartments, Detective Carney could not have
predicted that Loftin would have the opportunity to assault
McClendon with the gun that Detective Carney loaned Loftin for
self-protection. Thus, while Detective Carney’s actions in
providing Loftin with a gun were certainly inadvisable, there is
no evidence in the record suggesting that he acted with knowledge
that his conduct would pose a threat to McClendon’s safety.
Under these circumstances, no rational trier of fact could find
that Detective Carney acted with any level of culpability beyond
mere negligence.
18
Thus, under the facts established by the summary judgment
record, viewed in the light most favorable to McClendon, there is
no violation by Detective Carney of McClendon’s substantive due
process rights. Negligent infliction of harm by a state actor
does not rise to the level of a substantive due process
violation, regardless of whether the plaintiff’s injury was
inflicted directly by a state actor or by a third party. Because
the facts alleged by McClendon, as supplemented by the summary
judgment record, do not demonstrate the violation of an actual
constitutional right, Detective Carney is entitled to summary
judgment on grounds of qualified immunity.
IV. WAS DETECTIVE CARNEY’S CONDUCT OBJECTIVELY UNREASONABLE IN
LIGHT OF CLEARLY ESTABLISHED LAW?
Even if we were to find, contrary to our above conclusion,
that McClendon had established a viable constitutional claim
under current law, summary judgment in favor of Detective Carney
on grounds of qualified immunity is nonetheless appropriate
because Detective Carney’s conduct was not objectively
unreasonable in light of clearly established law at the time of
his actions.9
9
Normally, we proceed to the second prong of the Siegert analysis
only if we decide, under the first prong, that the defendant engaged in
constitutionally impermissible conduct. See, e.g., Saucier, 533 U.S. at 201
(“If no constitutional right would have been violated were the allegations
established, there is no necessity for further inquiries concerning qualified
immunity.”); accord Roe v. Tex. Dep’t of Protective & Regulatory Servs., 299
F.3d 395, 401 (5th Cir. 2002). We make an exception for our alternative
holding here, because of the need to articulate whether it is appropriate,
when this circuit has not spoken to an issue, to look to the law of other
circuits in determining whether a right was “clearly established.” While this
19
As noted above, “government officials performing
discretionary functions generally . . . are ‘shielded from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Wilson, 526 U.S.
at 614 (quoting Harlow, 457 U.S. at 818). “What this means in
practice is that whether an official protected by qualified
immunity may be held personally liable for an allegedly unlawful
action generally turns on the ‘objective legal reasonableness’ of
the official’s action, assessed in light of the legal rules that
were ‘clearly established’ at the time it was taken.” Id.
(quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987)).
McClendon concedes that, at the time of Detective Carney’s
allegedly unlawful conduct in July of 1993, neither the Supreme
Court nor this court had expressly adopted the “state-created
danger” theory of substantive due process liability.10 Indeed,
as noted above, neither this court nor the Supreme Court has yet
determined whether a citizen has a constitutional right to be
alternative holding is binding precedent, see Williams v. Cain, 229 F.3d 468,
474 n.5 (5th Cir. 2000) (noting that alternative holdings are binding
precedent in this circuit), we emphasize that such alternative analysis should
be rare in qualified immunity cases and should not be undertaken routinely by
the panels of this court.
10
We note that if this court had expressly adopted or rejected the
state-created danger theory prior to July of 1993 that would, of course, be
the end of our inquiry. See, e.g., Boddie, 989 F.2d at 748 (noting that, even
when there is a split among federal appellate courts regarding the appropriate
resolution of a question of law, “[o]ur [qualified immunity] inquiry ends, if
we find from examining the decisions of the Supreme Court and our own
decisions that the law was clearly established in this circuit”).
20
free from state-created dangers. However, McClendon contends
that the viability of the state-created danger theory was clearly
established law in July of 1993 because this court had discussed
the theory favorably in Salas v. Carpenter, 980 F.2d 299, 309
(5th Cir. 1992), and because a number of other federal circuits
had expressly adopted the theory. In support of this argument,
McClendon relies on Melear v. Spears, 862 F.2d 1177 (5th Cir.
1989), in which a panel of this court indicated that it is
sometimes appropriate to look outside Fifth Circuit and Supreme
Court precedent in determining what constitutes clearly
established law. The Melear court reasoned:
As a general proposition, we will not rigidly
define the applicable body of law in
determining whether relevant legal rules were
clearly established at the time of the
conduct at issue. Relying solely on Fifth
Circuit and Supreme Court cases, for example,
would be excessively formalistic, but they
will loom largest in our inquiries. In
determining what the relevant law is, then, a
court must necessarily exercise some
discretion in determining the relevance of
particular law under the facts and
circumstances of each case, looking at such
factors as the overall weight of authority,
and the status of the courts that render
substantively relevant decisions, as well as
the jurisdiction of the courts that render
substantively relevant decisions.
Id. at 1185 n.8 (internal citations omitted).
Detective Carney, in contrast, maintains that this court
must be guided exclusively by Fifth Circuit and Supreme Court
authority in assessing whether the state-created danger theory
21
was clearly established law in July of 1993. In support of this
contention, he points to Shipp v. McMahon, in which a panel of
this court found that “in determining whether a right is clearly
established, we are confined to precedent from our circuit or the
Supreme Court.” 234 F.3d 907, 915 (5th Cir. 2000). Detective
Carney accordingly contends that he is entitled to qualified
immunity because the state-created danger theory was not clearly
established in this circuit in July of 1993.
To resolve this apparent conflict between Melear and Shipp,
we look to the Supreme Court’s qualified immunity cases
addressing what constitutes clearly established law. The most
directly applicable authority is the Court’s recent decision in
Wilson v. Layne, 526 U.S. 603 (1999). Wilson involved § 1983
actions and actions brought pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971),
by homeowners alleging that state and federal law enforcement
officers violated the homeowners’ Fourth Amendment rights by
bringing members of the media into their home to observe and
record the officers’ attempted execution of an arrest warrant on
the homeowners’ son. The Fourth Circuit held that the officers
were shielded from liability by the doctrine of qualified
immunity. See Wilson v. Layne, 141 F.3d 111, 115-17 (4th Cir.
1998). On writ of certiorari, the Supreme Court initially
concluded that the officers’ actions violated the plaintiffs’
22
Fourth Amendment rights under current law. See 526 U.S. at 614.
The Court then went on to consider whether a reasonable officer
could have believed that bringing members of the media into a
private home during the execution of an arrest warrant was lawful
in light of clearly established law in April of 1992. While
conceding that there was no directly controlling Fourth Circuit
or Supreme Court authority establishing the illegality of such
conduct, the plaintiffs pointed to a decision issued five weeks
prior to the officers’ actions in which the Sixth Circuit held
that police may not bring along third parties during an entry
into a private home pursuant to a warrant for purposes unrelated
to those justifying the warrant. See Bills v. Aseltine, 958 F.2d
697 (6th Cir. 1992). The plaintiffs contended that this decision
was persuasive authority sufficient to clearly establish the
unlawfulness of the officers’ conduct.
The Supreme Court rejected this argument and held that the
officers were entitled to qualified immunity, finding that “the
law on third-party entry into homes was [not] clearly established
in April 1992.” Wilson, 526 U.S. at 617. The Court reasoned:
Petitioners have not brought to our attention
any cases of controlling authority in their
jurisdiction at the time of the incident
which clearly established the rule on which
they seek to rely, nor have they identified a
consensus of cases of persuasive authority
such that a reasonable officer could not have
believed that his actions were lawful.
23
Id. (emphasis added).11
This language in Wilson clearly suggests that, in the
absence of directly controlling authority, a “consensus of cases
of persuasive authority” might, under some circumstances, be
sufficient to compel the conclusion that no reasonable officer
could have believed that his or her actions were lawful. See
also Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th
Cir. 1992) (“Ordinarily, in order for the law to be clearly
established, there must be a Supreme Court or Tenth Circuit
decision on point, or the clearly established weight of authority
from other courts must have found the law to be as the plaintiff
maintains.”); Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir.
1985) (“[I]n the absence of binding precedent, a court should
look to whatever decisional law is available to ascertain whether
the law is clearly established . . . .”). Because the Supreme
Court’s method of analysis in Wilson is inconsistent with the
rule predicated in Shipp, Shipp’s statement that “we are confined
to precedent from our circuit or the Supreme Court” in analyzing
whether a right is clearly established for the purposes of
qualified immunity analysis, see 234 F.3d at 915, is overruled.
11
The Wilson Court also suggested that the Sixth Circuit’s decision
in Bills was not controlling because that decision did not define the Fourth
Amendment right invoked by the Wilson plaintiffs with sufficient specificity
to clearly establish that the officers’ conduct violated that right. Wilson,
526 U.S. at 615-17.
24
In light of Wilson, we must consider both this court’s
treatment of the state-created danger theory and status of this
theory in our sister circuits in assessing whether a reasonable
officer would have known at the time of Detective Carney’s
actions that his conduct was unlawful. As the Supreme Court
recently explained in Hope v. Pelzer, 122 S. Ct. 2508 (2002),
“qualified immunity operates to ensure that before they are
subjected to suit, officers are on notice that their conduct is
unlawful.” Id. at 2515 (quoting Saucier, 533 U.S. at 206).
Thus, the “salient question” under the second prong of the
Siegert test is “whether the state of the law at the time of the
state action gave [the state actors] fair warning that their
alleged treatment of the plaintiff was unconstitutional.” Roe,
299 F.3d at 408-09 (quoting Hope, 122 S. Ct. at 2515).
Prior to July of 1993, this court had only once considered a
civil rights claim premised on a “state-created danger” theory.
In Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992), this court
considered a § 1983 suit brought by the estate of a slain hostage
against the county sheriff who commanded the hostage rescue
efforts. The victim claimed that the county sheriff deprived her
of her life by preventing city officials from coming to her aid,
using incompetent hostage negotiators, and failing to provide
adequate weapons and communication equipment to handle the
hostage situation. We found that the sheriff was entitled to
25
qualified immunity from suit. In considering the victim’s claim,
we recognized that some of our sister circuits had found “a
denial of due process when the state creates the . . . dangers”
faced by an individual, id. at 309 (citing Gregory v. City of
Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc); L.W. v.
Grubbs, 974 F.2d 119, 121 (9th Cir. 1992); Wood v. Ostrander, 879
F.2d 583 (9th Cir. 1989); White v. Rochford, 592 F.2d 381 (7th
Cir. 1979)), and that at least one court had further found that
“a claim may exist when officials increase a person’s
vulnerability to private violence by interfering with protective
services which otherwise would be available,” id. (citing Freeman
v. Ferguson, 911 F.2d 52 (8th Cir. 1990)). However, we did not
sanction these courts’ analyses. Instead, we merely noted that
the facts underlying these decisions were distinguishable from
the situation facing the sheriff in Salas. Unlike the state
officials at issue in Wood, Rochford, and Grubbs, the sheriff
“did not worsen [the victim’s] position and abandon her to allow
events to run their course.” Id. Determining that no court had
found a state official constitutionally liable on a state-created
danger theory in a situation sufficiently analogous to the facts
at hand, we concluded that the sheriff was entitled to qualified
immunity because the Salas plaintiffs had failed to state a
cognizable constitutional claim.
26
As we have recognized on numerous subsequent occasions, our
decision in Salas did not address the viability of the state-
created danger theory or define the contours of an individual’s
right to be free from state-created dangers. See, e.g.,
Piotrowski v. City of Houston (“Piotrowski I”), 51 F.3d 512, 515
(5th Cir. 1995); Lefall v. Dallas Indep. Sch. Dist., 28 F.3d 521,
530-31 (5th Cir. 1994). Salas simply held that, even under the
most expansive articulations of the state-created danger doctrine
sanctioned by other courts at that time, the plaintiffs had not
stated a cognizable claim. This discussion in Salas would not
have provided a reasonable officer with “fair warning” that
creating or increasing a danger to a known victim with deliberate
indifference towards that victim violates the victim’s
substantive due process rights. Furthermore, our Salas decision
was certainly insufficient to provide a reasonable officer with
“fair warning” that Detective Carney’s particular actions in
loaning Loftin a gun would violate McClendon’s substantive due
process rights.
Turning to the law of our sister circuits, we note that six
circuits had sanctioned some version of the state-created danger
theory in July of 1993, at the time of Detective Carney’s
allegedly unlawful actions. See, e.g., Dwares v. City of New
York, 985 F.2d 94, 99 (2d Cir. 1993); Freeman, 911 F.2d at 54-55;
Wood, 879 F.2d at 596; Cornelius, 880 F.2d at 359; Nishiyama v.
27
Dickson County, Tenn., 814 F.2d 277, 282 (6th Cir. 1987)
(overruled on other grounds by Lewellen v. Metro. Gov’t of
Nashville, 34 F.3d 345, 349 (6th Cir. 1994)); Bowers v. DeVito,
686 F.2d 616, 618 (7th Cir. 1982). Moreover, as McClendon
correctly points out, no circuit had explicitly rejected the
state-created danger theory in July of 1993. While both of these
factors are relevant to our determination whether there was a
“consensus of cases of persuasive authority” sufficient to
provide Detective Carney with “fair warning” that his acts were
unlawful, the mere fact that a large number of courts had
recognized the existence of a right to be free from state-created
danger in some circumstances as of July 1993 is insufficient to
clearly establish the unlawfulness of Detective Carney’s actions.
The Supreme Court has recognized on numerous occasions that
the operation of the “clearly established” standard depends
substantially upon the level of generality at which the relevant
legal rule is defined. See, e.g., Wilson, 526 U.S. at 614-15;
Anderson v. Creighton, 483 U.S. at 640. As the Anderson Court
explained:
[T]he right to due process of law is quite
clearly established by the Due Process
Clause, and thus there is a sense in which
any action that violates that Clause (no
matter how unclear it may be that the
particular action is a violation) violates a
clearly established right. Much the same
could be said of any other constitutional or
statutory violation. But if the test of
“clearly established law” were to be applied
28
at this level of generality, it would bear no
relationship to the “objective legal
reasonableness” that is the touchstone of
[the qualified immunity analysis]. . . . It
should not be surprising, therefore, that our
cases establish that the right the official
is alleged to have violated must have been
“clearly established” in a more
particularized, and hence more relevant,
sense: The contours of the right must be
sufficiently clear that a reasonable official
would understand that what he is doing
violates that right.
Anderson, 483 U.S. at 640; accord Wilson, 526 U.S. at 614-15. As
Anderson and Wilson make clear, assessing the “objective legal
reasonableness” of an officer’s actions in light of clearly
established law requires a court to consider not only whether
courts have recognized the existence of a particular
constitutional right, but also on whether that right has been
defined with sufficient clarity to enable a reasonable official
to assess the lawfulness of his conduct. See also Hope, 122
S.Ct. at 2515. Accordingly, in the instant case we must assess
whether those cases from our sister circuits recognizing the
existence of a substantive due process right to be free from
state-created danger established the contours of that right with
sufficient clarity to provide a reasonable officer in Detective
Carney’s position with fair warning that providing Loftin with a
gun would violate McClendon’s rights.
Those courts sanctioning some version of the state-created
danger theory prior to 1993 might fairly be characterized, at a
29
high level of generality, to be in agreement about the existence
of a substantive due process right to be free from state-created
danger. However, these courts were not in agreement as to the
specific nature of that right. For example, these courts
apparently disagreed as to the appropriate mental state required
to hold a state actor liable for harms inflicted by third
parties. While most courts agreed that something more than “mere
negligence” was required to support liability, the Ninth Circuit
apparently favored a “deliberate indifference” standard, see
Grubbs, 974 F.2d at 122-23, the Sixth Circuit used a slightly
different “gross negligence” test, see Nishiyama, 814 F.2d at
282, and the Second Circuit hinted that intent to injure might be
required, see Dwares, 985 F.2d at 99. In addition, even those
courts accepting the theoretical validity of the state-created
danger doctrine admitted uncertainty as to its contours. See,
e.g., Freeman, 911 F.2d at 55 (noting that “[i]t is not clear,
under DeShaney, how large a role the state must play in the
creation of danger and in the creation of vulnerability before it
assumes a constitutional duty to protect”). Thus, while a number
of our sister circuits had accepted some version of the state-
created danger theory as of July of 1993, given the
inconsistencies and uncertainties within this alleged consensus
of authorities, an officer acting within the jurisdiction of this
court could not possibly have assessed whether his or her conduct
30
violated this right in the absence of explicit guidance from this
court or the Supreme Court.12 Accord Butera, 235 F.3d at 653
(concluding that “as of 1997, the ‘contours’ of the rights
created by the State endangerment concept were not settled among
the circuits”).
In addition, it is significant that no court in 1993 had
applied the state-created danger theory to a factual context
similar to that of the instant case. As the Hope Court recently
emphasized, state officials can still be on notice that their
conduct violates established law, even in novel factual
circumstances. Hope, 122 S. Ct. at 2516. The “clearly
established” prong of the qualified immunity inquiry does not
require that “the very action in question [must have] previously
been held unlawful.” Anderson, 483 U.S. at 640. Nonetheless,
the unlawfulness of the state official’s actions “must be
apparent” in light of pre-existing law to preclude the official
from invoking qualified immunity. Id.
In the circumstances of the instant case, we cannot say that
the unlawfulness of Detective Carney’s particular actions should
have been apparent to him in light of clearly established law in
12
The reluctance of this court, in the ten years since Salas was
decided, to embrace some version of the state-created danger theory despite
numerous opportunities to do so suggests that, regardless of the status of
this doctrine in other circuits, a reasonable officer in this circuit would,
even today, be unclear as to whether there is a right to be free from “state-
created danger.” Put differently, a strong consensus of authorities in other
circuits is more likely to be determinative on a subject when this circuit is
tabula rasa on that subject than when the landscape in this circuit is
littered with opinions expressing varying levels of skepticism.
31
July of 1993. The relatively few pre-1993 state-created danger
cases that were brought against law enforcement officers (as
opposed to child welfare officials or hospital officials)
generally involved police officers who had deliberately ignored
an individual’s pleas for assistance, see, e.g., Dwares, 985 F.2d
at 96-97; Freeman, 911 F.2d 53-54, or abandoned an individual in
a dangerous situation, see, e.g, Gregory, 974 F.2d 1007-09; Wood,
879 F.2d 586. None of these pre-1993 cases involved an officer
whose alleged actions heightened a third party’s ability to act
in a dangerous manner, as in the instant case. The fact that the
state-created danger theory was recognized at a general level in
these precedents did not necessarily provide Officer Carney with
notice that his specific actions created such a danger. While
“general statements of the law are not inherently incapable of
giving fair and clear warning,” Hope, 122 S. Ct. at 2516 (quoting
United States v. Lanier, 520 U.S. 259, 269 (1997)), this is not a
situation where “a general constitutional rule already identified
in the decisional law . . . appl[ied] with obvious clarity to the
specific conduct in question.” Id. (quoting Lanier, 520 U.S. at
269).13 In such circumstances, qualified immunity should be
13
Indeed, general principles of the law are less likely to provide
fair warning where, as here, applicability of the doctrine is highly context-
sensitive. Cf. Anderson, 483 U.S. at 640-41 (reasoning that the clearly
established nature of the right to be free from warrantless searches was not
necessarily sufficient to clearly establish that an officer’s conduct was
objectively unreasonable under the particular circumstances that the officer
confronted).
32
granted “if a reasonable official would be left uncertain of the
law’s application to the facts confronting him.” Salas, 980 F.2d
at 311 (citing Hopkins v. Stice, 916 F.2d 1029, 1031 (5th Cir.
1990)).
In summary, even if a “consensus” of circuits had adopted
some version of the state-created danger theory in July of 1993,
this consensus did not at that time establish the contours of an
individual’s right to be free from state-created danger with
sufficient clarity to provide Detective Carney with fair warning
that his conduct violated that right. Accordingly, Detective
Carney is entitled to qualified immunity from McClendon’s § 1983
action.
V. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
summary judgment in favor of Detective Carney. We also AFFIRM
the district court’s summary judgment in favor of the City.
33
E. GRADY JOLLY, Circuit Judge, concurring:
The majority has followed a plausible approach in deciding the qualified immunity issue in
this case and I concur in the analysis and result reached. However, I agree with Judge Parker’s
very convincing dissent to the effect that the most judicially responsible course for this en banc
court to follow would be to decide the specific contours of the “state created danger” cause of
action under the Due Process Clause. I regret that the majority of the court has chosen to
pretermit the resolution of this question once again, leaving the bench and bar in doubt as to
whether and to what extent such a cause of action exists in this circuit.
34
EDITH H. JONES, Circuit Judge, joined by RHESA H. BARKSDALE, Circuit Judge,
concurring:
I concur in the majority opinion but would emphasize two points. First, it is
unnecessary for the court to reach any broad pronouncement on the state-created danger theory of
§ 1983 liability because, at the level of generality represented by the facts before us, no such theory
would be viable. This is why it is imperative for courts carefully to address the first question in
qualified immunity analysis: whether, under existing law, the plaintiff states a claim for violation of
a clearly established federal right
Second, the panel seriously erred by disregarding ten years’ precedents of this court
refusing to adopt the theory and instead holding that theory “clearly established” by other circuits’
decisions as of 1993. No matter what was clearly established elsewhere, that theory certainly was
not and is not established in t his court. Fidelity to circuit precedent demands granting qualified
immunity whenever the law in this circuit has remained in flux before and after the events that give
rise to a particular claim. Compare Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001).
35
EMILIO M. GARZA, Circuit Judge, concurs in the judgment only.
See Walton v. Alexander, 44 F.3d 1297, 1306 (5th Cir. 1995)(en banc)(“In sum, we hold that
a ‘special relationship’ arises between a person and the state only when this person is involuntarily
confined against his will through the affirmative exercise of state power. Absent this ‘special
relationship,’ the state has no duty to protect nor liability from failing to protect a person under the
due process clause of the Fourteenth Amendment from violence at the hands of a private actor.”
(emphasis added)).
36
ROBERT M. PARKER, Circuit Judge, joined by Circuit Judges WIENER
and HAROLD R. DeMOSS, JR., dissenting:
What would a reasonable person think would happen if a police
officer in the course of his employment takes a pistol from the
evidence locker or from his desk and gives it to a gang member with
a history of drug involvement who needs it for a confrontation with
a drug dealer? Any reasonable person would conclude that the state
created or enhanced a dangerous situation when the officer gave the
pistol to the gang member. There is no dispute that the gang
member, Kevin Loftin, used the pistol provided by Detective Carney
to shoot the drug dealer, McClendon.
So how does one read the majority opinion, particularly in
light of the fact that the majority does not reject the state-
created danger theory outright? The only way to explain the
majority opinion is that it clearly reflects a court that aspires
to be the only circuit in the country to reject the state-created
danger theory but cannot bring itself to admit it. Instead, the
Court has embarked on a ten-year course of back-door rejection by
assuming arguendo that the theory is viable and then finding that
the victim has just not made the case. Far better it would be if
37
this Circuit wants to embrace the extreme position of being the
only circuit to reject the theory to simply say so.
In general, the majority correctly identifies two main issues
in this case.14 However, these two issues need be addressed only
if the state-created danger theory is a viable mechanism for
recovery under § 1983 in this Circuit. The majority once again
fails to resolve this initial question. Instead, it produces a
convoluted opinion, compelling me to dissent.
I. IS THE STATE-CREATED DANGER THEORY A VIABLE THEORY IN THIS
CIRCUIT?
The majority’s Achilles’ heel is its unwillingness to either
adopt or reject the state-created danger theory as the law of the
Circuit. Over the last ten years, at least seven state-created
danger cases have arrived in our Circuit, but we have never taken
a position on whether the state-created danger theory is a valid
one, choosing instead to duck the issue. We simply stated in each
case (without explicitly adopting or rejecting the theory) that the
evidence is insufficient to raise a genuine issue of material fact
concerning one or more of the elements that comprise the theory.15
14
First, viewing the evidence in the light most favorable to McClendon,
has McClendon raised a genuine issue of material fact concerning each of the
elements of his state-created danger claim. Second, if so, was it “clearly
established” law at the time of the incident that a police officer who did
what Carney did could be subject to liability for violating the Due Process
Clause of the Fourteenth Amendment.
15
See Piotrowski v. City of Houston, 237 F.3d 567, 584 (5th Cir.
2001)(“Piotrowski II”); Randolph v. Cervantes, 130 F.3d 727, 731 (5th Cir.
1997); Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir.
1997); Piotrowski v. City of Houston, 51 F.3d 512, 515-17 (5th Cir.
1995)(“Piotrowski I”); Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201
38
Our methodological approach - assuming arguendo for the purposes of
each case that the state-created danger theory is a valid one but
never explicitly rejecting or adopting it - cannot be defended and
leaves this area of circuit law in a perpetual state of confusion.16
To the untrained eye, the majority’s methodological approach
may appear slightly different from the tact taken by the previous
seven panels that addressed state-created danger claims. Indeed,
the McClendon majority never specifically states that it will
assume arguendo, without deciding, that the theory is a viable one.
However, that is precisely what the majority has done. It (1)
implicitly assumes that the theory is a viable one without
(5th Cir. 1994); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 530 (5th
Cir. 1994); Salas v. Carpenter, 980 F.2d 299, 309 (5th Cir. 1992).
16
The majority’s methodological approach would perhaps be defensible if
(1) this was the first time we were presented with the state-created danger
theory, the theory was clearly without merit and as a consequence unlikely to
be asserted again in the district courts; and (2) little or no legal authority
existed on the viability of the theory. However, neither of these
circumstances are present here. First, the state-created danger claim has
been asserted by litigants in the district courts in our Circuit for more than
a decade and will likely continue to be asserted absent our explicit rejection
of it. In fact, we ourselves have addressed this theory on at least seven
different occasions. Second, a wealth of federal authority exists in our
sister circuits concerning the viability of this theory. The majority’s
approach is further questionable given my conclusion that a couple of the
Circuit’s prior decisions which analyze whether a plaintiff has made out a
valid state-created danger claim are not above reproach. For example, while
it is true that this case presents the worst state-created danger claim we
have ever seen, the behavior of the police in the Piotrowski case was
similarly galling. The Piotrowski facts were so bad that a jury awarded the
plaintiff $20 million, however, we had no qualms reversing. See Piotrowski
II, 237 F.3d at 572. Moreover, in Johnson, we affirmed the dismissal of a
state-created danger claim on a Rule 12(b)(6) motion even though further
discovery could have shed light on the actual knowledge and level of
culpability of school district officials in creating an allegedly dangerous
environment in which a high school student was shot and killed by a non-
student in the school hallways during normal school hours. See Johnson, 38
F.3d at 205-08 (Goldberg, J., dissenting).
39
accepting or rejecting it outright; and (2) then finds that the
facts do not amount to “deliberate indifference” as a matter of
law.
Regardless of how the majority chooses to articulate it, this
is the same analytical approach we have employed in the previous
state-created danger cases and is the same analytical approach the
Supreme Court has told us not to employ. The Circuit’s modus
operandi in these cases plays like a broken record - same approach,
same result, and same confusion created for the district courts,
state officials, and the general public concerning the Circuit’s
position on this important issue. In choosing to play this broken
record yet again, the majority skirts the central issue in the
case: Whether the substantive component of the Due Process Clause
guarantees a citizen the right to be free from acts of violence
inflicted by a third party when the state actor played an
affirmative role in creating or exacerbating the dangerous
situation that led to the citizen’s injury. In failing to answer
this fundamental question, the majority shirks its constitutional
duty.
The Due Process Clause of the Fourteenth Amendment states that
“[n]o State shall . . . deprive any person of life, liberty, or
property, without due process of law.” It is well-established that
deprivations of due process can be substantive. The substantive
component of the Due Process Clause “protects individual liberty
40
against ‘certain government actions regardless of the fairness of
the procedures used to implement them.’” Collins v. City of Harker
Heights, 503 U.S. 115, 125 (1992)(quoting Daniels v. Williams, 474
U.S. 327, 331 (1986). However, the Supreme Court has warned us
that “substantive-due-process cases [require] a ‘careful
description’ of the asserted fundamental liberty interest.”
Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (citation
omitted). Here, the fundamental liberty interest at stake is
McClendon’s interest in his bodily integrity.
It is indisputable that there is a general substantive due
process right to bodily integrity. See e.g., Planned Parenthood v.
Casey, 505 U.S. 833 (1992). In a case involving sexual abuse of a
public school child by her teacher, this Circuit clearly held that
“[t]he right to be free of state-occasioned damage to a person’s
bodily integrity is protected by the fourteenth amendment guarantee
of due process.” Doe v. Taylor Independent School District, 15
F.3d 443, 450-51 (5th Cir. 1994)(en banc)(quoting Shillingford v.
Holmes, 634 F.2d 263, 265 (5th Cir. 1981). The other circuits have
also upheld the constitutional principle that there is a
substantive due process right to be free from state-imposed
violations of bodily integrity in cases involving rape and sexual
harassment by police officers as well as cases involving sexual
abuse of public school students by school employees. See Rogers v.
City of Little Rock, 152 F.3d 790, 796 (8th Cir. 1998)(police
41
officer violated a woman’s substantive due process right to bodily
integrity when he used his position of power as a police officer to
rape her); Plumeau v. School District #40 County of Yamhill, 130
F.3d 432, 438 (9th Cir. 1997)(public school students have a
substantive due process right not to be sexually abused by school
employees at school).
The particular question presented by the state-created danger
theory is whether it is constitutionally permissible to find that
a state actor’s egregious conduct which creates a “special danger”
that the citizen’s bodily integrity will be physically violated by
a third party is tantamount to the state actor “occasioning” the
damage to the individual’s bodily integrity even though the state
does not commit the actual physical injury itself. In my view, the
substantive due process right to bodily integrity can extend to
cover such a situation as long as the state actor engages in
affirmative conduct which creates the danger.
In Butera v. District of Columbia, 235 F.3d 637, 651 (D.C.
Cir. 2001), the D.C. Circuit held that “under the State
endangerment concept, an individual can assert a substantive due
process right to protection by the District of Columbia from third-
party violence when District of Columbia officials affirmatively
act to increase or create the danger that ultimately results in the
42
individual’s harm.”17 The implication from this holding is that the
constitutional duty to protect the individual’s bodily integrity
only arises when the state takes affirmative steps to create the
danger for the individual. Thus, the actual constitutional
violation occurs when the state fails to protect the individual
from the dangers the state has made of its own creation. In other
words, the state “occasions” the damage to the individual’s bodily
integrity because it fails to protect the individual from a danger
of its own creation. The rationale for equating state acts which
impose direct physical injury on an individual with affirmative
conduct by the state which creates or increases the danger that a
private party will impose direct physical injury to an individual
is straightforward. As the Seventh Circuit stated, “[i]f the state
puts a man in a position of danger from private persons and then
fails to protect him, it will not be heard to say that its role was
merely passive; it is as much an active tortfeasor as if it had
thrown him into a snake pit.” Bowers v. DeVito, 686 F.2d 616, 618
(7th Cir. 1982).
Consequently, the linchpin for concluding that a substantive
due process violation can be made out under the state-created
danger theory is the “affirmative conduct” requirement. The
“affirmative conduct” requirement prevents the state from being
17
The D.C. Circuit is the last circuit to explain the rationale for
recognizing a substantive due process right based upon the state-created
danger theory. The Butera opinion is lengthy, well-reasoned and constitutes
persuasive authority.
43
held liable for acts of omission. Similarly, the theory’s
requirements that the state actor must know that his actions
endanger a specific individual18 and that a direct causal connection
must exist between the state actor’s conduct which increases the
danger and the actual injury itself19 are commensurate with the
Supreme Court’s recognition that the Due Process Clause “is phrased
as a limitation on the State’s power to act, not as a guarantee of
certain minimal levels of safety and security.” DeShaney v.
Winnebago County Department of Social Services, 489 U.S. 189, 195
(1989).20
In addition to the D.C. Circuit, the other circuits have
confronted this issue and have determined that constitutional
liability under § 1983 can exist “where the state creates a
dangerous situation or renders citizens more vulnerable to danger.”
18
See Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir.
1998)(finding that the state must have known or clearly should have known that
its actions specifically endangered an individual).
19
See Kneipp v. Tedder, 95 F.3d 1199, 1208 (3rd Cir. 1996)(the harm
ultimately caused by the state-created danger must be foreseeable and fairly
direct).
20
In the case at bar, the “affirmative action” element, “knowledge”
element, and “causation” element are satisfied. First, Detective Carney knew
that Loftin intended to use the gun in any altercation with McClendon. Thus,
he had actual knowledge that McClendon was at substantial risk of injury.
Second, Detective Carney engaged in affirmative conduct because he gave Loftin
a deadly weapon which Loftin could use to shoot McClendon. Third, there is a
direct causal connection between the injury suffered and the affirmative
conduct. Detective Carney created the danger that McClendon would be shot in
the face by giving Loftin the gun. If Carney had not given Loftin the gun,
Loftin would only have had his bare fists to use as weapons in any potential
altercation with McClendon. Thus, but for Carney giving Loftin the gun,
Loftin likely could not have caused McClendon to suffer such severe injuries.
44
Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir.), cert. denied, 510
U.S. 947 (1993). As the majority notes, the Second, Third, Sixth,
Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have each
accepted the state-created danger theory as a viable means of
protecting a citizen’s substantive due process rights.21 My
research further indicates that the remaining circuits (i.e., the
First and Fourth Circuits) have expressed similar support for the
theory.22 Consequently, the state-created danger theory is
overwhelmingly accepted in today’s federal jurisprudence.
In the face of such overwhelming authority, the majority
cowers. It does not have the courage to be the only federal
circuit court of appeals in the nation to explicitly reject the
state-created danger theory even though that is clearly what it
21
See Majority Opinion, supra, at notes 6-7.
22
The First Circuit has adopted the state-created danger theory as a
viable means of obtaining Section 1983 relief in rare and exceptional cases.
See Frances-Colon v. Ramirez, 107 F.3d 62, 63-64 (1st Cir. 1997)(substantive
due process interest in “bodily integrity” can support a personal injury claim
under Section 1983 in the rare and exceptional cases when a government
employee affirmatively acts to increase the threat of harm to the claimant).
In addition, the Fourth Circuit considered a state-created danger claim and
noted that there may be some “point on the spectrum between action and
inaction” in which the state would be implicated in the harm caused by third
parties. See Pinder v. Johnson, 54 F.3d 1169, 1175(4th Cir.)(en banc), cert.
denied, 516 U.S. 994 (1995). This observation suggests the Fourth Circuit
accepts the notion that a state actor who affirmatively acts to create a
danger could be subject to constitutional liability. Indeed, in a subsequent
unpublished opinion, the Fourth Circuit analyzed a state-created danger claim
and indicated that the state can be liable for the acts of third parties when
the state itself creates the danger. See Stevenson v. Martin County. Bd. of
Educ., No. 99-2685, 2001 WL 98358, *5 (4th Cir.), cert. denied, 122 S. Ct. 54
(2001).
45
wants to do. Although the majority refuses to take the road less
traveled in a principled albeit unpopular way, it is perfectly
willing to accomplish its objectives through subterfuge. The
majority knows only too well how to play the game. If the Circuit
never rules on whether this is a viable theory, the Circuit makes
it exceedingly difficult for the district courts to rule that the
Circuit law in state-created danger cases is “clearly established”
for purposes of a qualified immunity analysis. Thus, state actors
who engage in behavior that falls within the confines of the
“state-created danger” theory will always escape liability under
the majority’s view no matter how egregious their behavior. That
is an insidious approach to the law and I reject it outright.
The Circuit should quit hiding the ball from the public and
make a decision one way or the other. It has refused.23 However,
I favor adopting, as has the rest of the country, the state-created
danger theory as a viable mechanism for obtaining Section 1983
relief in this Circuit.
II. THE CONSTITUTIONAL VIOLATION AND QUALIFIED IMMUNITY ANALYSIS
The majority opinion arrives at several conclusions that I
believe are patently absurd under the facts of this case. First,
the majority concludes that ”while Detective Carney’s actions in
providing Loftin with a gun were certainly inadvisable . . . no
23
In refusing to make this decision, the majority attempts to create the
illusion that no Circuit split exists in hopes of avoiding Supreme Court
scrutiny.
46
rational trier of fact could find that Detective Carney acted with
any level of culpability beyond mere negligence.”24 Second, the
majority concludes that “Detective Carney’s conduct was not
objectively unreasonable in light of clearly established law at the
time of his actions.”25 I will address each baseless conclusion in
turn.
A. Carney’s actions constitute deliberate indifference
I agree with the majority that in order to survive summary
judgment on his substantive due process claim McClendon must
produce sufficient facts from which a rational fact-finder could
conclude that Detective Carney acted with culpability beyond mere
negligence. Because Detective Carney had plenty of time to
“deliberate” as to whether he could properly give Loftin the gun,
McClendon is only required to prove that Detective Carney acted
with deliberate indifference.26 For two main reasons, I find that
24
See Majority opinion at 18.
25
See Majority opinion at 19.
26
The majority correctly states that a plaintiff who asserts a
substantive due process violation is required to show that the state’s conduct
“shocks the contemporary conscience.” However, in County of Sacramento v.
Lewis, 523 U.S. 833, 849 (1998), the Supreme Court intimated that the point of
conscience shocking may be reached in some circumstances by proving “something
more than negligence but ‘less than intentional conduct, such as recklessness
or gross negligence.” (citation omitted). The Court noted that the level of
culpability which can constitute “conscience shocking” is a “matter for closer
calls.” Id. It then indicated that a state official’s deliberate
indifference can be “constitutionally shocking” in the context of a custodial
prison situation if “actual deliberation is practical.” Id. at 851. Thus,
whether the deliberate indifference standard should be applied to the instant
case depends upon whether Detective Carney had actual time to deliberate. See
Butera, 235 F.3d at 652. Because deliberation was practical for Detective
Carney, the deliberate indifference standard is applicable.
47
McClendon has produced sufficient evidence from which a rational
trier of fact could not avoid concluding that Carney acted with
deliberate indifference to McClendon’s substantive due process
right.
First, McClendon gave Loftin a gun at a time when he knew the
dispute between McClendon and Loftin was “at a boiling point.”
Detective Carney knew that Loftin wanted the gun because he desired
to use it as a weapon in any altercation with McClendon. He knew
that Loftin and McClendon were likely to meet at some point in
time. It is true that he had no specific knowledge that they would
see each other at the Hendrix Street Apartments on the night in
question. However, this fact is largely irrelevant to our
analysis. The “knowledge” inquiry under a deliberate indifferent
analysis does not require such a level of specificity. Clearly,
Detective Carney had actual knowledge that Loftin and McClendon
would likely have an altercation and that violence would almost
certainly ensue between the two.27
The majority inexplicably states that “While Detective Carney
was informed that McClendon potentially posed a threat to Loftin’s
safety, there is no indication that Loftin had any violent
27
The record reflects that Loftin asked Carney for a gun because his own
gun had been seized by the City of Columbia police department as the result of
an incident in which an individual either borrowed or stole Loftin’s gun and
used Loftin’s gun to shoot McClendon’s friend. Indeed, the genesis of the
dispute between McClendon and Loftin appears to have been the fact that
Loftin’s gun was used by another person to shoot McClendon’s friend. In any
event, Carney did not give Loftin his own gun back, but instead gave him a
different gun that had allegedly been seized by the City of Columbia as
evidence pursuant to an unrelated investigation.
48
intentions toward McClendon.”28 What does the majority think Loftin
intended to do with the gun provided to him by Detective Carney -
place it on his wall as a souvenir? Of course not, gang members
who ask for guns typically have violent intentions as any competent
police officer knows. The majority implies that Detective Carney
was not aware that Loftin had any violent intentions towards
McClendon because Detective Carney merely “loaned” the gun to
Loftin for self-protection. However, the majority’s suggestion
that Detective Carney believed that Loftin only intended to use the
gun for self-protection belies common sense and is not a fact which
a rational jury would be required to accept as true. On the
contrary, the record evidence indicates that Detective Carney did
not give Loftin any specific instructions as to when and under what
circumstances he could rightfully use the gun. Detective Carney
does not appear to have placed any limitations on Loftin’s use of
the gun.
In short, Loftin is a gang member who serves as a confidential
informant because he is involved in the drug scene. McClendon is
a drug dealer. Any officer with enough sense to be entrusted with
a gun knows that if he gives a gun to a gang member with a history
of drug involvement who is anticipating a confrontation with a drug
dealer, there is a strong likelihood that should an altercation
28
See Majority Opinion at p. 18.
49
arise the gang member will use that gun to shoot the drug dealer,
with or without provocation.
Second, Detective Carney took property held by the City of
Columbia(i.e., the gun) and gave it to a confidential informant.
The majority characterizes this act as “inadvisable” or perhaps
“negligent.” I characterize the act as criminal. My determination
that Detective Carney’s actions violate Mississippi criminal law
completely undermines the majority’s conclusion that no rational
trier of fact could find that Detective Carney’s actions amount to
deliberate indifference.
Mississippi law criminalizes embezzlement by police officers.
Miss. Code Ann. § 97-11-25 (West 2001) makes it a crime for a city
police officer to “unlawfully convert to his own use any money or
other valuable thing which comes to his hands or possession by
virtue of his office or employment.” A conviction under this
statute carries with it the possibility of as much as twenty (20)
years incarceration.29
29
§ 97-11-25 states in total: “If any state officer or any county
officer, or an officer in any district or subdivision of a county, or an
officer of any city, town or village, or a notary public, or any other person
holding any public office or employment, or any executor, administrator or
guardian, or any trustee of an express trust, any master or commissioner, or
receiver, or any attorney at law or solicitor, or any bank or collecting
agent, or other person engaged in like public employment, or any other person
undertaking to act for others and instrusted by them with business of any
kind, or with money, shall unlawfully convert to his own use any money or
other valuable thing which comes to his hands or possession by his virtue of
office or employment, or shall not, when lawfully required to turn over such
money or deliver such thing, immediately do so according to his legal
obligation, he shall, on conviction, be committed to the department of
corrections for not more than twenty (20) years, or be fined not more than
five thousand dollars ($5,000.00).”
50
In my view, Detective Carney’s action in taking the gun from
the evidence drawer/locker and giving it to Loftin constituted
embezzlement by a public official in violation of § 97-11-25.30
Detective Carney’s position as a police officer made him a “public
official” as defined by § 97-11-25. The gun was a “valuable thing”
for purposes of § 97-11-25. Detective Carney had possession of the
gun “by virtue of his employment” as a “public official” as
required by § 97-11-25. Finally, Detective Carney “unlawfully
converted” the gun to his own use when he gave the gun to Loftin
because this act was adverse to the City’s ownership interests in
the gun. See Board on Law Enforcement Officer Standards and
Training v. Rushing, 752 So. 2d 1085, 1087 (Miss. Ct. App.
1999)(deputy sheriff who took a firearm that was the property of
the county and pawned it for $250 committed an act that was
sufficiently adverse to the county’s ownership rights in the
property to constitute an act of embezzlement).
B. Qualified Immunity
Because the majority determines that McClendon has not adduced
sufficient facts to prove “deliberate indifference,” the majority’s
30
As noted earlier, the gun had been seized as evidence in an unrelated
investigation by the City of Columbia police department. Thus, the City
exercised proper control over the gun but held it on behalf of the rightful
owner of the gun and/or the public. See Re: Inventory of Evidence Vaults,
Miss. Att’y Gen. Op. No. 2000-0081, 2000 WL 530411 (March 10, 2000)(noting
that evidence held in the custody of a law enforcement department is held in
trust for the rightful owner of such evidence, and/or ultimately for the
benefit of the public should such evidence become the subject of a
forfeiture). Because the gun belonged to the City, Detective Carney had no
legal right to dispossess the gun from the City’s control.
51
opinion should come to a screeching halt at that point. On the
contrary, however, recognizing that its conclusion that no rational
jury could find the deprivation of a constitutional right defies
common sense, the majority seeks to further justify its decision by
alternatively holding that Detective Carney is entitled to
qualified immunity because the contours of the state-created danger
theory were not “clearly established” at the time of the incident.
The majority reasons that Detective Carney should not have
known that giving the gun to Loftin was unlawful because (1) we did
not explicitly adopt the state-created danger theory in Salas; (2)
our sister circuits which had recognized the theory by 1993 had
slight variations concerning the mental state required to hold a
state actor liable for harms inflicted by third parties; and (3)
these circuits had not applied the theory to this precise factual
situation. I address each point in turn.
First, it is true that we had not explicitly adopted the
state-created danger theory in July of 1993. However, as the
majority notes, we have indicated in the past that we will look to
the overall weight of authority in determining whether the law is
clearly established. See Melear v. Spears, 862 F.2d 1177, 1185 n.8
(5th Cir. 1989). The Supreme Court has blessed this approach. See
Wilson v. Layne, 526 U.S. 603, 617 (1999)(indicating that a
consensus of cases of persuasive authority is sufficient to put a
police officer on notice of the lawfulness of his actions).
52
Second, the majority contends that the numerous cases which
had adopted the state-created danger theory by 1993 do not
constitute a “consensus of cases of persuasive authority” on this
point of law because slight variations existed among the circuits
concerning the level of culpability required to hold the state
actor constitutionally liable. This conclusion strikes me as
plainly inconsistent with the more liberal approach to the “clearly
established law” inquiry as set forth in Wilson.
Third, the majority’s suggestion that the law cannot be
“clearly established” if no prior case exists which found the exact
behavior engaged in by the police officer to be unlawful
misconceives the purposes which underlie the “clearly established
law” inquiry and is incongruent with our precedent. We explained
in Petta v. Rivera, 143 F.3d 895, 899 (5th Cir. 1998):
[F]or a right to be “clearly established” we
require that its “contours . . . must be
sufficiently clear that a reasonable official
would understand that what he is doing
violates that right.” It is not necessary,
however, that prior cases have held the
particular action in question unlawful; “but
it is to say that in the light of preexisting
law the unlawfulness must be apparent.”
(internal citations omitted).
By July of 1993, a consensus of cases of persuasive authority
existed to put reasonable police officers on notice that they may
violate the Constitution if (1) they create or increase a danger to
a known victim; and (2) act with deliberate indifference towards
53
the known victim during the creation of such danger. The
majority’s conclusion that the unlawfulness of Detective Carney’s
actions should not have been apparent to him in light of the
clearly established law in July of 1993 simply cannot be justified
given the fact that (1) the majority of circuits had adopted the
state-created danger theory by July of 1993; and (2) Detective
Carney’s actions violated Mississippi criminal law.
There are certain things any police officer should know will
violate the Constitution even if no reported case exists which
finds the action in question unlawful. As stated previously, any
reasonable officer in Detective Carney’s position would understand
that providing Loftin with a gun created a danger that Loftin would
shoot McClendon. In fact, any officer with enough sense to be
entrusted with a gun knows that giving a gun to a gang member with
a history of drug involvement who is anticipating a confrontation
with a drug dealer is creating a dangerous situation. Thus, a
reasonable officer would recognize that this type of action could
result in a violation of McClendon’s constitutional rights.
Consequently, I would also hold that Detective Carney is not
entitled to qualified immunity from McClendon’s § 1983 action.
I dissent.
54
WIENER, Circuit Judge, concurring in Judge Parker’s dissent and
further dissenting from the en banc opinion:
I concur in Judge Parker’s dissent, writing a few additional
lines of my own just to emphasize one point and to advance another.
First, I am as incredulous as Judge Parker that the majority
can take the position that “McClendon has not adduced any evidence
suggesting that Detective Carney acted with anything other than
ordinary negligence in the instant case,” and that “[t]here is no
indication that Detective Carney was aware that Loftin had any
violent intentions toward McClendon.” Not only did Carney commit
an overt act of commission —— an unlawful one at that —— by arming
Loftin (whom Carney knew to be an intimate member of the illicit
drug culture), but he did so in direct response to being informed
by Loftin of an impending confrontation between Loftin and
McClendon that only the most naive Pollyanna could expect would be
anything other than physical and violent. Given all the
information that Carney had, it is this court that is being naive
about the sufficiency of the evidence amounting to considerably
more than negligence: recklessness and, ultimately, deliberate
indifference to McClendon’s right to inviolate bodily integrity.
More importantly to me, however, is what —— with the utmost
respect —— I view as a misapprehension of the central issue of this
case —— the kind of constitutional right proffered by McClendon
that was required to have been clearly established at the time if
he were to avoid an adverse judgment grounded in qualified
immunity. All the wrangling over “state-created danger” is a
classic red herring which has led this court away from the proper
analysis.
Long before the instant incident, the constitutional right to
be free from state violation of bodily integrity was well
established. It is that right that McClendon asserts: His bodily
integrity was violated when he was ruthlessly shot in the face by
Loftin with the very gun that had been unlawfully entrusted to him
by Detective Carney. McClendon does not contend that Carney, as a
state actor, created the danger that produced his blinding injury;
he does contend —— correctly —— that (1) Carney had to be totally
aware of the potential of a physically violent confrontation
between McClendon and Loftin, (2) Carney had to know (or at least
is presumed to have known) that the act of arming Loftin was
unlawful under Mississippi law, (3) the overt, unlawful act of
commission in arming Loftin was undeniably reckless and thus done
with deliberate indifference, and (4) Carney’s state act not only
increased and enhanced the likelihood that McClendon’s bodily
integrity would be violated; it made it a virtual certainty.
This leaves as the only open issue not whether the danger was
state created (or even state enhanced) but whether the reckless,
deliberately indifferent act of Detective Carney, as a state actor,
56
was a producing cause of the violation of McClendon’s
constitutional right. If this case presents any legal question,
therefore, it is whether there is a sufficient nexus between the
deliberately indifferent state act and the violation of the
citizen’s right to bodily integrity. Stated differently, was the
intervening action of the non-state actor, Loftin, which clearly
violated the victim’s bodily integrity, sufficiently causally
connected to the behavior of the state actor, Detective Carney, as
to constitute the legally actionable cause of the violation of
McClendon’s constitutional right?
We have previously held that a remote state actor can be
denied qualified immunity when his deliberate indifference exposes
the victim to a constitutional violation perpetrated by an
interposed party, even in situations that would be non-custodial
under DeShaney. For example, we denied qualified immunity to the
school principal in Doe v. Taylor ISD31 because his deliberate
indifference, in light of information no more damning than that
possessed by Detective Carney, not only increased the likelihood of
the young schoolgirls’ bodily integrity being violated by a third
party (the predatory teacher/coach whom the principal’s alleged
recklessness allowed to continue in a position of predation); it
made the violation possible. That the teacher/coach was himself a
state actor and the instant confidential informant was not is a
31
15 F.3d 443 (5th Cir. 1994)(en banc).
57
distinction without a difference to this taxonomy. In both cases,
the interposed party acted precisely as the facts clearly known to
the state actor —— the school principal in Doe and Detective Carney
here —— would predict. The state actor’s deliberate indifference
was the sine qua non to the constitutional violation.
Because a genuine issue of material fact is presented in this
case regarding the Detective’s role in the violation of McClendon’s
clearly established constitutional right to an inviolate bodily
integrity, I respectfully dissent from the grant of qualified
immunity grounded in the spurious and inapplicable issue of state-
created danger. This is a garden variety case implicating the
violation of a clearly established constitutional right, which
violation flowed from the reckless and unlawful —— deliberately
indifferent —— behavior of a state actor that was objectively
unreasonable under the plethora of facts known to him at the time.
This case should go to trial to flesh out all the facts and let the
jury determine whether the deliberate indifference of Detective
Carney had a sufficient nexus with the constitutional violation
suffered by McClendon, given the interposition of the confidential
informant (not a state actor) who was armed by Carney and sent
forth to a violent confrontation that Carney had to know was
imminent.
58
59