McClendon v. City of Columbia

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