United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 15, 2004
UNITED STATES COURT OF APPEALS April 14, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________ Clerk
NO. 03-50427
_______________________
MANUELA BELTRAN,
Individually and as legal representative
on behalf of the heirs of both the
Estate of Irene Beltran Garcia,
and the Estate of Sonye Leigh Herrera,
Plaintiff-Appellee,
versus
THE CITY OF EL PASO, et. al.,
Defendants,
SYLVIA AMADOR,
also known as D590SA,
also known as Operator Lewis,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
EP-02-CV-206-PRM
________________________________________________________________
Before HIGGINBOTHAM, JONES and MAGILL,* Circuit Judges.
EDITH H. JONES, Circuit Judge:
This case arises from a father’s murder of his wife and
fifteen-year old daughter. The girl’s grandmother filed this
damage action against the City of El Paso and the 911 operator who
*
Circuit Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation.
allegedly mishandled the victim’s initial emergency call. The
district court perfunctorily denied the 911 operator’s motion for
summary judgment on qualified immunity grounds, and the 911
operator now appeals. Because the appellee failed to state a
violation of clearly established equal protection or due process
rights against the 911 operator, we reverse and remand for entry of
judgment in her favor.
I. BACKGROUND
In November 1999, Sonye Herrera (“Sonye”) called 911 to
report that her father, Armando Herrera (“Herrera”), was drunk and
was becoming physically and verbally abusive to her and her mother,
Irene Beltran-Garcia (“Garcia”). Police units were dispatched and
Sonye’s father was arrested and charged with felony child injury.
A few months later, on April 16, 2000, Sonye again called
911 from her home to report that her father was drunk and
potentially violent. Sylvia Amador, the 911 operator who received
the call, discussed the situation with Sonye in order to ascertain
the nature of the emergency. At the outset of the call, Sonye
indicated that her father had threatened her and that she was
afraid for her life and hiding in a bathroom, but she did not
indicate that she had been physically abused. Sonye repeatedly
asked Amador to send the police to her house. Amador responded to
Sonye that the police were receiving the information that Amador
was placing into the 911 system. At one point during the call,
2
Sonye informed Amador that she believed her father had left the
premises. Amador then requested information about Herrera’s
automobile and potential destination. Before disconnecting the
call, Amador informed Sonye that the police would be sent out and
suggested that if Sonye believed her father was still in the house,
she might wish to remain locked in the bathroom for her safety.
Amador then disconnected the call.
While recording Sonye’s information into the dispatch
computer, Amador did not include Sonye’s statements that she feared
for her life or the prior report of Herrera’s domestic violence.
Based on the family relationship between Sonye and her father and
Amador’s understanding of the situation, Amador coded the call a
“family violence assault,” a priority level 4 call. Amador’s
entries led a police dispatch operator to send out two general
broadcasts regarding the incident. No police units immediately
responded and soon thereafter, Herrera, who had not actually left
the house, shot and killed his wife and daughter.
Manuela Beltran (“Beltran”), Sonye’s grandmother, sued
the City of El Paso and Amador on behalf of herself and the
decedents’ estates. The action filed in state court alleged
42 U.S.C. § 1983 violations of the Equal Protection Clause, the Due
Process Clause, and the Texas Family Violence Prevention Act,1
1
In her initial filing in state court, Beltran sought declaratory
judgment on the Texas Family Violence Prevention Act (“FVPA”) claims. Before
this court, however, as part of her Equal Protection claim under § 1983, Beltran
argues that Sonye’s and Garcia’s statutory rights under the FVPA were violated
3
along with a variety of other state law tort and contract claims.
Amador removed the case to federal court and, following discovery,
moved for summary judgment on qualified immunity grounds. The
district court denied Amador’s motion in a one-paragraph order
holding that disputed issues of material fact exist as to whether
Amador was entitled to qualified immunity. Amador has filed a
proper interlocutory appeal.
II. DISCUSSION
A. Standard of Review
The court of appeals reviews a district court’s denial of
summary judgment based on qualified immunity de novo. Hatfield v.
Scott, 306 F.3d 223, 226 (5th Cir. 2002). As a general matter,
where a district court has found that genuine factual disputes
exist in an interlocutory appeal asserting qualified immunity, the
court of appeals must accept the plaintiff’s version of the facts
as true. See Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.
2000). Nevertheless, where a district court does not set out the
factual basis underlying its legal determinations related to a
claim of qualified immunity, the court of appeals must review the
by Amador and the City of El Paso. However, such a claim is not cognizable under
§ 1983 because § 1983 was designed to protect against the violation of federal
constitutional and statutory rights, not those created by state statute. San
Jacinto Sav. & Loan v. Kacal, 928 F.2d 697, 701 (5th Cir. 1991) (“Violation of
a state statute is not actionable under § 1983."); Calhoun v. Hargrove, 312 F.3d
730, 734 (5th Cir. 2002) (“A claim for relief under § 1983 must allege the
deprivation of a right secured by the Constitution or laws of the United States
by a defendant acting under the color of state law.”) (emphasis added).
4
record to determine what facts the district court assumed. See
Johnson v. Jones, 515 U.S. 304, 319 (1995).
B. Qualified Immunity
The doctrine of qualified immunity serves to shield a
government official from liability based on the performance of
discretionary functions. Thompson v. Upshur County, 245 F.3d 447,
456 (5th Cir. 2001). To establish an entitlement to qualified
immunity, a government official must first show that the conduct
occurred while he was acting in his official capacity and within
the scope of his discretionary authority. Cronen v. Texas Dep’t of
Human Servs., 977 F.2d 934, 939 (5th Cir. 1992). Once a defendant
has properly invoked qualified immunity, the burden rests on the
plaintiff to show that the defense does not apply. See McClendon
v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc).
Courts apply a two-pronged inquiry to determine whether
qualified immunity is applicable in a given case. First, the court
must determine whether the plaintiff has alleged a violation of a
clearly established federal constitutional or statutory right. See
id. at 322-23. Second, the court must determine whether the
official’s conduct was objectively reasonable in light of the
clearly established legal rules at the time of the alleged
violation. Id.
1. Amador’s Discretionary Authority
5
As a threshold matter, Beltran contends that Amador’s
position did not involve the type of discretionary decisionmaking
authority for which qualified immunity is designed. Beltran argues
that a genuine issue of material fact exists concerning whether
Amador exercised any measure of discretionary authority in her
position as a 911 operator. According to Beltran, Amador holds a
purely ministerial position requiring her to transcribe and enter
caller-provided information into a computer system in accordance
with departmental policies. Beltran contends that Amador possessed
neither the requisite education, training or skills to exercise
personal deliberation in her job.
Because the district court did not set out the facts it
relied upon to determine that genuine issues of material fact
existed, we must examine the record below in the light most
favorable to Beltran, the nonmoving party, to determine what facts
guided the district court. Johnson, 515 U.S. at 319. The record
indicates no factual dispute between the parties concerning
Amador’s education, training, skills, or the actual tasks attendant
to her job. Likewise, there is no dispute that Amador was acting
in her official capacity during the incident and that, if she had
discretionary authority, her actions fell within its scope. Thus,
the only disagreement between the parties is whether Amador
possessed a sufficient quantum of discretionary authority to be
entitled to a qualified immunity defense. To the extent Beltran
suggests the facts on this issue are disputed, the discrepancies
6
are not material. For this reason, despite the district court’s
determination that genuine issues of material fact exist in this
action, the order denying summary judgment on qualified immunity is
appealable as a legal issue. See Hatfield, 306 F.3d at 225.
Whether viewed as a matter of characterization or of
quantification, the evidence demonstrates that Amador exercised
crucial discretion in her job. Amador’s job appears ministerial to
the extent that she is required to transcribe information from
callers in a relatively structured manner. But considering the
urgency inherent in emergency situations, 911 operators like Amador
regularly make a variety of judgment calls. Their principal role
is to determine how a particular caller’s information should be
entered into the system so that it will be useful to emergency
service providers. One of Amador’s specific tasks is to enter a
short statement regarding the “immediate reason” an officer is
needed at the scene of the incident. Such determinations are the
paradigmatic type of discretionary decisions that law enforcement
personnel routinely undertake. Moreover, the parties agree that
Amador is required to classify calls based on the facts she gleans
in careful conversation with the caller. Indeed, Beltran’s equal
protection claim centers on the assertion that Amador improperly
classified Sonye’s call as a priority level 4 “family violence
assault” call rather than a priority level 3 “injury to child in
progress” call. Amador’s responsibility to interpret and then
classify and transcribe calls based on the information she obtains,
7
buttresses our conclusion that Amador possessed the necessary
quantum of discretionary authority to properly assert qualified
immunity.
2. Existence of a Clearly Established Constitutional
Right
a. Equal Protection Claim
Beltran argues that by coding Sonye’s 911 call a priority
level 4 “family violence assault,” rather than a priority level 3
“injury to a child in progress,” Amador violated both Sonye’s and
Garcia’s rights to equal protection of the laws under the
Fourteenth Amendment.
The “Due Process Clause does not require a State to
provide its citizens with particular protective services.”
DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189,
197 (1989). Therefore, “a State’s failure to protect an individual
against private violence does not violate the Due Process Clause.”
Id. At the same time, however, DeShaney noted that “a State may
not, of course, selectively deny its protective services to certain
disfavored minorities without violating the Equal Protection
Clause.” Id. at 197 n.3. This court has cautioned that the Equal
Protection Clause should not be used to make an end-run around the
DeShaney principle that there is no constitutional right to state
protection for acts carried out by a private actor. See McKee v.
City of Rockwall, 877 F.2d 409, 413 (5th Cir. 1989) (noting that
DeShaney might easily be circumvented if plaintiffs were allowed to
8
convert “every Due Process claim into an Equal Protection claim,
via an allegation that state officers exercised their discretion to
act in one situation and not another”).
More recently, this court acknowledged that certain
intentionally discriminatory policies, practices, and customs of
law enforcement with regard to domestic assault and abuse cases may
violate the Equal Protection Clause under the DeShaney footnote.
See Shipp v. McMahon, 234 F.3d 907, 914 (5th Cir. 2000), overruled
in part on other grounds by, McClendon, 305 F.3d at 328-29. While
granting qualified immunity on the facts then before the court,
Shipp provided an objective standard to inform government officials
of the type of conduct that violates federal constitutional or
statutory rights. Id. (citing Harlow v. Fitzgerald, 457 U.S. 800,
819 (1982)).2 To sustain a gender-based equal protection challenge
under Shipp, a plaintiff must show “(1) the existence of a policy,
practice, or custom of law enforcement to provide less protection
to victims of domestic assault than to victims of other assaults;
(2) that discrimination against women was a motivating fact; and
(3) that the plaintiff was injured by the policy, custom or
practice.” Id.
2
Although Amador failed to mention it in her briefing, the Shipp
opinion appeared in its original version in early 2000, just a few months before
the events at issue here; Shipp became final in this court in December 2000, see
234 F.3d 907, eight months after Sonye and her mother were killed. For purposes
of this discussion, we assume that the first version of Shipp, though later
vacated and superseded, was binding in the Fifth Circuit.
9
After carefully reviewing Beltran’s claim in light of
Shipp, we conclude that even if El Paso’s 911 classification policy
improperly subjected “family violence assault” calls to a lower
priority than “injury to a child in progress,” fulfilling the first
Shipp criterion, the evidence does not raise triable fact issues
concerning intentional gender-based discrimination or causation,
the remaining Shipp criteria.
We assume arguendo that the City’s classification policy
had an adverse disparate impact on female victims of domestic
violence, but the weakness of this assumption should be noted.
There is no statistical or even anecdotal evidence in the record
that women were systematically shortchanged or deprived of
effective law enforcement response by the City’s 911 policies.
More significantly, the City’s policy seems to embody a distinction
in Texas criminal law between distinct types of assault cases.3
The City’s policy, at one level, appears, not irrationally, to
3
Texas defines family violence assault as an assault where “the
offense is committed against . . . a member of the defendant’s family or
household.” TEX. PEN. CODE ANN. § 22.01(B)(2) (VERNON 2003). Assault, in turn, may
be committed by “(1) intentionally, knowingly or recklessly caus[ing] bodily
injury to another, including the person’s spouse; (2) intentionally or knowingly
threaten[ing] another with imminent bodily injury, including the person’s spouse;
or (3) intentionally or knowingly caus[ing] physical contact with another when
the person knows or should reasonably believe that the other will regard the
contact as offensive or provocative.” Id. at § 22.01(a). In contrast, “injury
to a child” is defined under Texas law as “intentionally, knowingly, recklessly
or with criminal negligence, by act, or intentionally, knowingly or recklessly
by omission, caus[ing] to a child . . . (1) serious bodily injury; (2) serious
mental deficiency, impairment or injury; or (3) bodily injury.” Id. at §
22.04(a). Thus, under Texas law, for an “injury to a child” to be “in progress,”
an individual must be causing, either by act or omission, some type of actual
injury to a child. On the other hand, for a “family violence assault” to be
taking place, an individual may be causing bodily injury to a family or may
simply be threatening a family member with imminent bodily injury.
10
track the relative severity of assaults defined by state criminal
law. At another level, however, the commonsense notions of injury
in progress and assault suggest overlap depending on the nature of
the injury or assault and leave room for the 911 operator’s
exercise of non-gender-influenced judgment. Either way, no adverse
disparate impact on women is foreordained by the classification
policy. But we afford Beltran the benefit of the doubt here, since
the other criteria of a Shipp claim are so obviously wanting.
Shipp held that a plaintiff must show that discrimination
against women is the “motivating factor” behind governmental
policies that are alleged to be improper; consequently, “law
enforcement officials will only be liable for those policies . . .
that are the product of invidious discrimination.” Id. (emphasis
added). Beltran has made no showing that the City of El Paso
assigns a lower level priority code to 911 family violence assault
calls as the result of an effort to discriminate against women.
Without evidence of discriminatory intent, Beltran cannot argue
that the mere existence of such a policy violates the Equal
Protection Clause. See id. (noting that even where a plaintiff
brings forth “statistical evidence showing disproportionate impact
[that] is probative on the issue of gender-based motivation, such
evidence without a showing of intent is insufficient to sustain an
equal protection claim”).
The only evidence of allegedly improper motivation that
Beltran puts forward is that during the 911 call, Amador asked
11
Sonye whether it was her husband or her boyfriend that was
threatening her, and during her deposition, Amador suggested that
had there been no family relationship between Sonye and Herrera,
she might have been able to use the injury to a child in progress
code. Amador’s statements must be viewed in context. According to
the transcript of the 911 call, at the time Amador asked Sonye
about her relationship to her attacker, all that Amador knew was
that Sonye was in her home and that she feared attack by a male
assailant. Amador’s question regarding the nature of the relation-
ship between Sonye and her assailant is better understood as an
eminently reasonable question that an emergency operator might ask
to assess the situation at hand, rather than an attempt to
discriminate against Sonye or her mother based on their
relationship to the attacker. Similarly, Amador’s statement that
she “could have used the injury to a child in progress” code had
there been no family relationship does not imply that she would
have used the injury in progress code. The transcript of the 911
call indicates that when Sonye made her call, her father had not
yet actually physically attacked her. Further, she was not
necessarily in immediate danger of physical harm because she was
hiding in a locked bathroom. When Amador asked Sonye whether her
father was trying to hit her or if he was just arguing with her,
Sonye responded only that her father had been drinking and that he
was “restraining himself from hitting” her. Amador’s question was
directly related to determining whether Sonye was actually being
12
injured, a fact which might have led Amador to use the injury in
progress code rather than the family violence assault code. When
Amador completed the call, however, it appeared that Herrera had
left the premises. These facts, taken as a whole, demonstrate that
Amador was gauging the potential danger in Sonye’s situation; they
do not imply any measure of discriminatory intent on Amador’s part.
Beltran has also shown no direct causal link between the
victims’ deaths and the City of El Paso’s policy as carried into
practice by Amador. This court noted in Shipp that a causation
requirement is crucial to ensure that law enforcement officials are
not held to account for “generalized harms that are not traceable
to their . . . policies” or for injuries that “are solely
attributable to the perpetrators of the underlying domestic
assault.” 234 F.3d at 914. Such a requirement is reinforced by
the Supreme Court’s recognition that “discretion is essential to
the criminal justice process.” See McCleskey v. Kemp, 481 U.S.
279, 297 (1972). Law enforcement officials must have “the flexi-
bility and discretion to adopt and employ policies that are
tailored to address the special concerns that domestic assault
cases raise without compromising the protective services that law
enforcement provides.” See Shipp, 234 F.3d at 914.
Thus, an equal protection plaintiff must show that her
injuries are the result of law enforcement “inaction or conduct
pursuant to invidious policies.” Id. However, Beltran provides no
evidence that the police would have responded any more quickly if
13
Amador had coded the call as an injury to a child in progress. The
lack of immediate police response to the family violence assault
bulletin is not probative of whether the units would have responded
more expeditiously to an injury to a child in progress call. Even
if Beltran could show that the police would have responded more
quickly to an injury to a child in progress call, there is no
evidence that the police would have arrived in time to save Sonye
or Garcia. Without such evidence, it is difficult, if not
impossible, to determine whether police delay or inaction in
response to the family violence assault bulletin was the cause of
Sonye’s and Garcia’s deaths.
Given the dearth of evidence presented by Beltran to
support her case under Shipp, the facts of this case, even viewed
in the light most favorable to the plaintiff, show no violation of
Sonye’s or Garcia’s rights under the Equal Protection Clause, much
less of any clearly established rights in the circumstances that
confronted Amador.
b. Due Process Claim
Beltran also contends that Sonye’s substantive due
process rights were violated by Amador because Amador falsely
promised police services that Sonye relied on to her detriment. As
was noted earlier, the “Due Process Clause does not require a State
to provide its citizens with particular protective services.”
DeShaney, 489 U.S. at 197. Therefore, “a State’s failure to pro-
14
tect an individual against private violence does not violate the
Due Process Clause.” Id. However, DeShaney recognized that “in
certain limited circumstances the Constitution imposes upon the
State affirmative duties of care and protection with respect to
particular individuals.” Id. at 198 (emphasis added). Such
“special relationship” cases arise when the state, “through the
affirmative exercise of its powers, acts to restrain an
individual’s freedom to act on his own behalf.” See McClendon, 305
F.3d at 323.
Beltran argues that by encouraging Sonye to stay in the
bathroom and telling her that the police were on the way, Amador
became the custodian of Sonye’s safety. This argument falls
outside of the special relationships described by the Supreme
Court, which are limited to cases concerning “incarceration,
institutionalization, or other similar restraint of personal
liberty.” DeShaney, 489 U.S. at 200. In this case, Amador offered
advice to Sonye, but she did not affirmatively place Sonye in
custody by restraining her in the bathroom. This might have
transpired if Amador had been present in the house and locked the
bathroom door from the outside, but we decline to speculate on this
counterfactual possibility.
Beltran alternatively contends that Amador, by providing
Sonye with inaccurate information about the status of the patrol
units and recommending that she stay in the bathroom, created a
dangerous situation for which the state was or should be
15
responsible. This court has consistently refused to recognize a
“state-created danger” theory of § 1983 liability even where the
question of the theory’s viability has been squarely presented.
See, e.g., McClendon, 305 F.3d at 327-333; Scanlan v. Texas A&M
Univ., 343 F.3d 533, 537 (5th Cir. 2003) (same). It is unnecessary
to do so in this case.
Even if a state-created danger theory were acknowledged
in this circuit, in order for Amador to be held liable, Beltran
must show that Amador acted with “deliberate indifference” to
Sonye’s situation. See McClendon, 305 F.3d at 326; Scanlan, 343
F.3d at 537-38. Deliberate indifference requires that the state
actor both knew of and disregarded an excessive risk to the
victim’s health and safety. McClendon, 305 F.3d at 326, n.8. In
McClendon, this court held that a defendant police officer who lent
a gun to an informant was not deliberately indifferent toward a
third-party that the informant shot with the officer’s gun. Id. at
326-27. Rather, this court held that the officer was negligent.
Id. The only facts presented by Beltran that even remotely suggest
misfeasance are (1) Amador’s failure to record the previous Herrera
family injury to a child incident in the dispatch report; (2) her
statement to Sonye that the police were on their way; (3) the
advice Amador provided to Sonye to stay in the bathroom; and
(4) Amador’s disconnecting of the phone call. Given Amador’s
understanding that (1) a radio call was going out to patrol cars
based on her report, (2) the locked bathroom was a relatively safe
16
place, and (3) Herrera was leaving the scene, she did not display
deliberate indifference to Sonye’s situation. She had no reason at
that point to know that Sonye’s life was in immediate danger.
Moreover, rather than disregard the threat, it appears that Amador
was doing what she could to keep Sonye safe. Her errors constitute
negligence, not deliberate indifference.
For these reasons, Beltran’s due process claim does not
fall within the narrow exceptions to DeShaney’s holding that state
actors may not be held responsible for private violence. See
DeShaney, 489 U.S. at 197. In the absence of a violation of a
clearly established constitutional right, Amador is entitled to
qualified immunity as a matter of law.
c. Objective Reasonableness
Even if Beltran had established a viable constitutional
claim under her Equal Protection or Due Process theories, Amador’s
conduct was objectively reasonable in light of the clearly
established legal rules at the time of the incident, and qualified
immunity protects her from any civil liability. See McClendon, 305
F.3d at 327. This court has held that “qualified immunity is a
shield from civil liability for ‘all but the plainly incompetent or
those who knowingly violate the law.’” See Jones v. City of
Jackson, 203 F.3d 875, 883 (5th Cir. 2000) (quoting Malley v.
Briggs, 475 U.S. 335, 341). Indeed, even officials whose conduct
“violates some statutory or administrative provision” do not
17
necessarily lose their qualified immunity. See Davis v. Scherer,
486 U.S. 183, 194 (1984). Reviewing the record in the light most
favorable to the plaintiff, we find that Amador’s actions were
objectively reasonable as a matter of law. Even accepting
Beltran’s assertion that Amador violated internal department
policies with respect to the amount and content of data to be
entered into the 911 system, and that other operators might have
handled Sonye’s call differently, there is no basis in the record
for suggesting that Amador knowingly violated the law or that she
was plainly incompetent.
III. CONCLUSION
For the reasons discussed above, we REVERSE and REMAND
with instructions to the district court to grant summary judgment
in favor of Amador on her qualified immunity defense with respect
to these federal constitutional claims.4
4
Amador also discusses a variety of state law tort and contract claims
brought by Beltran. However, the interlocutory order on appeal here did not
reach these issues, but dealt only with the question of summary judgement on
qualified immunity grounds. As a result, these issues are not properly before
this court on interlocutory appeal. See Felton v. Polles, 315 F.3d 470, 474 (5th
Cir. 2002) (noting the existence of jurisdictional limitations on interlocutory
appeals from a denial of summary judgment on qualified immunity grounds); Meyer
v. Austin Indep. Sch. Dist., 161 F.3d 271, 272 (5th Cir. 1998) (same).
18