May v. Franklin County Board of Commissioners

RYAN, Circuit Judge, concurring.

While I agree that officer Ratliff is entitled to qualified immunity, I write sepa*795rately because I disagree that May alleged “a sufficiently direct relationship such that [Ratliff] owed her a duty not to subject her to danger.” Stemler v. City of Florence, 126 F.3d 856, 867 (6th Cir.1997).

Under the framework for the analysis of qualified immunity, we must first determine whether the plaintiff, May, has alleged facts demonstrating that her decedent Kirk’s constitutional rights were violated. To do so, we make two additional inquiries: (1) whether Kirk and Ratliff had a sufficiently direct relationship; and (2) whether Ratliff was sufficiently culpable to be liable for a due process violation. Id. The majority concludes that May alleged a sufficiently direct relationship under the state-created-danger theory. The majority then holds that Ratliff was not sufficiently culpable and that, ultimately, May did not allege a violation of a constitutional right. To me, that analysis is confusing and, on the facts of this case, mistaken. In my view, May did not allege the kind of direct relationship between Kirk and Ratliff — a state-created danger — to make out a due process claim.

As the majority notes, “[l]iability under the state-created-danger theory is predicated upon affirmative acts by the state which either create or increase the risk that an individual will be exposed to private acts of violence.” Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir.1998). In Kallstrom, we explained this theory by borrowing an analogy from the Seventh Circuit: ‘“[I]f the state puts a man in a position of danger from private persons and then fails to protect him, ... it is as much an active tortfeasor as if it had thrown him into a snake pit.’ ” Id. (quoting Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982)) (emphasis added).

May alleged that Ratliff’s actions — responding to the call, knocking on the door, and looking in the windows — “emboldened” Moss to kill Kirk. According to the majority, May alleged a state-created danger because Ratliffs actions “increase[d] the vulnerability of an individual to private acts of violence beyond the level it would have been ... absent state action.” Gazette v. City of Pontiac, 41 F.3d 1061, 1065 (6th Cir.1994) (internal quotation marks and citation omitted).

In Gazette, the police were called to investigate the abduction of Pamela Bandy, who disappeared from a car wash. Id. at 1063. The police told Bandy’s daughter that they had investigated the car wash when, in fact, they had not. Id. Bandy’s daughter argued that had the police investigated the car wash, they would have discovered evidence which would have led them to Bandy. Id. We held that the plaintiff could not show the requisite “special relationship” between Bandy and the officers. Id. at 1065. We concluded that “[a]t most, the ... police officers failed to rescue Bandy, and did not ‘create the danger’ in which she found herself.” Id. As to the plaintiff’s specific claim that the officers increased Bandy’s “vulnerability to danger,” we explained that “the Due Process clause does not guarantee any citizen the right to government aid, including a guarantee of rescue.” Id. at 1066.

Ratliff did not “create” the danger to Kirk. Nor did Ratliff “put” Kirk in danger, as explained in Kallstrom. Ratliff responded to the call and took measures to gain admittance. Based on the facts alleged, his conduct was in no way offensive to the constitutional guarantee of due process. The Constitution simply does not proscribe what he did. Concerning May’s claim that Ratliff increased Kirk’s vulnerability to danger, we point out, as we did in Gazette, that there is no constitutional “guarantee of rescue.” Even if Ratliff “emboldened” Moss, Ratliff did not create *796the danger; Moss did that. At most, Ratliff failed to rescue Kirk. At the very least, he did not violate the law by breaking down the door.

Because May does not allege a state-created danger, she cannot show a sufficiently direct relationship between Kirk and Ratliff. She does not, therefore, allege a constitutional violation.

For the foregoing reasons, but not those elucidated by my colleagues, I agree that Ratliff is entitled to qualified immunity and, therefore, the district court’s judgment must be reversed.