Waugh v. Dow , 617 F. App'x 867 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 11, 2015
Elisabeth A. Shumaker
Clerk of Court
MICHAEL J. WAUGH,
Plaintiff - Appellee,
v. No. 14-6135
(D.C. No. 5:11-CV-01419-C)
JUSTIN M. DOW, Deputy, (W.D. Okla.)
Defendant - Appellant,
and
STATE OF OKLAHOMA; MAJOR
COUNTY; CHARLES A. PHILLIPS,
Deputy; JOSHUA W. DOW, Deputy;
WILL LEATHERMAN, Bail Bondsman;
ROBERT E. PETTIGREW, Bounty
Hunter; MICHAEL G. BELCHER,
Bounty Hunter,
Defendants.
ORDER AND JUDGMENT*
Before BRISCOE, Chief Judge, LUCERO and MATHESON, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Plaintiff Michael Waugh brought this pro se civil rights action after being shot
by defendant Joshua Dow, a private citizen who had been armed by his brother,
defendant Sheriff’s Deputy Justin M. Dow, and asked to assist in Mr. Waugh’s
apprehension. Deputy Dow now appeals from an order of the district court that,
among several other rulings not before us, denied his motion for summary judgment
asserting qualified immunity for his indirect role in the shooting of Mr. Waugh. On
de novo review of the purely legal issues raised on appeal, see Aldaba v. Pickens,
777 F.3d 1148, 1154 (10th Cir. 2015), we affirm the decision of the district court.
I. FACTUAL BACKGROUND
In the context of a qualified immunity appeal, “if the district court holds that a
reasonable jury could find certain facts in favor of the plaintiff, we generally take
these facts as true, even if the record would suggest otherwise upon our de novo
review.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 878 (10th Cir. 2014),
cert. denied, 135 S. Ct. 975 (2015). There are limited exceptions to this rule, id. at
878 n.2, but they do not apply here.
The district court’s order adopting the magistrate judge’s recommendation
succinctly outlined most of the primary relevant facts:
In June 2010 an arrest warrant was issued for Plaintiff. In August
of 2010, Plaintiff was found at a convenience store by two recovery
agents who were private citizens hired by the bail bond company. The
recovery agents attempted to detain Plaintiff and a struggle ensued from
which Plaintiff fled on foot. The recovery agents then called the Major
County Sheriff’s Department requesting assistance. Deputy Phillips
responded to that call. Deputy Phillips requested additional assistance,
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a request that was responded to by Deputy Dow. At the time he
responded to the call, Deputy Dow was off-duty and was driving in his
personal vehicle with his brother, Defendant Joshua Dow. After
receiving the call and agreeing to assist, Deputy Dow headed in the
direction where Plaintiff was last seen. After learning from some local
residents that Plaintiff had been seen entering a wooded area, Deputy
Dow gave his brother, Joshua Dow, his backup weapon and a badge,
instructing him to enter the woods to try to locate Plaintiff. While
Joshua Dow was doing this, Deputy Dow would then drive to the other
side of the woods and set up a perimeter. After entering the woods,
Joshua Dow eventually located Plaintiff. Joshua Dow then shot
Plaintiff in the leg, injuring him.
App. at 289-90 (footnote omitted). The district court noted one other particular
factual matter, regarding the time Deputy Dow had to deliberate about his course of
action, which determined the appropriate substantive due process standard to be used
in assessing the constitutionality of his conduct (a point we return to later):
Deputy Dow argues [the magistrate judge] applied an incorrect legal
standard in determining whether Deputy Dow’s actions shocked the
conscience. The Court disagrees. The cases cited by Deputy Dow dealt
with the need to make a split second decision during a high speed chase.
Here, while there is some dispute regarding the amount of time, it is
apparent that Deputy Dow had time for actual deliberation. Thus, the
proper standard evaluates whether [his] conduct was conscience
shocking by examining whether [he] showed a deliberate indifference to
an extreme risk of very serious harm to the plaintiff.
Id. at 290-91 (citation and internal quotation marks omitted).
The magistrate judge’s report and recommendation, which the district court
adopted without qualification, included two additional factual details relevant to our
review. First, the dispatch to which Deputy Dow responded misidentified the bail
bond recovery agents assaulted by Mr. Waugh as “fugitive apprehension agents,” i.e.,
Oklahoma Department of Corrections officers who locate, apprehend, and return
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escaped offenders.1 Id. at 187 & n.6. Second, Joshua Dow shot Mr. Waugh after one
of these ostensible officers told him to shoot. Id. at 189.
There is one other matter, with both factual and legal aspects, that warrants
acknowledgment. One of the reasons the magistrate judge cited for holding that
Deputy Dow’s conduct could be found actionably reckless was that he lacked
authority to seek assistance from a private citizen in apprehending Mr. Waugh. See
id. at 200-01. For this point the magistrate judge referred to an affidavit submitted
by the Major County Sheriff addressing matters relating chiefly to the potential
liability of the County. In the affidavit, the Sheriff stated that Deputy Dow did not
have authority, and specifically was not given such authority by the Sheriff, to assign
Joshua Dow to assist in Mr. Waugh’s apprehension. No independent source—rule,
policy, regulation, statute—is cited for this statement. And the statement, insofar as
it concerned Deputy Dow’s inherent authority, is contrary to an Oklahoma statute
(which Deputy Dow said he knew about at the time) entitled “Officer may command
assistance”: “When a . . . public officer authorized to execute process, finds, or has
reason to apprehend that resistance will be made to the execution of the process, he
may command as many male inhabitants of his county as he may think proper . . . to
assist him in overcoming the resistance, and if necessary, in seizing, arresting and
confining the resisters and their aiders and abettors, to be punished according to law.”
1
These agents also carried handcuffs and wore badges similar to those worn by
Major County Sheriff’s Deputies. App. at 185.
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Okla. Stat. Ann. tit. 22, § 91.2 In light of this statute, we do not follow the magistrate
judge in accepting as a fact that Deputy Dow lacked authority to ask for his brother’s
assistance. We do accept as a fact, however, that he had no specific authorization
from the Sheriff to do so in connection with the incident underlying this action.
II. DISTRICT COURT RULING
Although Mr. Waugh did not expressly invoke this theory of liability, the
magistrate judge construed his pro se pleadings to assert a substantive due process
claim against Deputy Dow based on a “state created danger” theory. Such a claim
allows for the imposition of liability on a state actor for injury caused by another,
private party. There are two preconditions for such a claim: (1) the state actor must
have engaged in some affirmative action that (2) led to private violence. Estate of
B.I.C. v. Gillen, 761 F.3d 1099, 1105 (10th Cir. 2014). If these preconditions are
met, the plaintiff may prevail on the claim by establishing the following elements:
(1) the charged state . . . actor[] created the danger or increased
plaintiff’s vulnerability to the danger in some way; (2) plaintiff was a
member of a limited and specifically identifiable group[3];
2
The statute does not address arming citizens commandeered for assistance, or
giving them official badges. We need not definitively construe the import of the
statute in this respect in order to take note of its relevance to an assessment of Deputy
Dow’s conduct. In his reply brief, Deputy Dow belatedly cites additional, essentially
redundant statutory authority for obtaining citizen assistance. See Okla. Stat. Ann.
tit. 19, § 516. He also cites authority for deputizing citizens, see id. tit. 19, § 548, as
construed in Nickell v. State, 746 P.2d 1155, 1157 (Okla. Crim. App. 1987), but he
never claimed to have deputized Joshua.
3
This is not “protected group” element of the sort required in equal protection
and employment discrimination contexts. It just means that the danger must have
been directed at the plaintiff in a way that it was not directed at the general public.
(continued)
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(3) defendant’s conduct put plaintiff at substantial risk of serious,
immediate, and proximate harm; (4) the risk was obvious or known;
(5) defendant[] acted recklessly in conscious disregard of that risk; and
(6) such conduct, when viewed in total, is conscience shocking.
Id. (alteration omitted); see also Currier v. Doran, 242 F.3d 905, 918, 924 (10th Cir.
2001) (setting out same elements and noting that state-created danger jurisprudence
was clearly established in this circuit by late 1994).
The magistrate judge first determined that the two preconditions “clearly could
be satisfied under the undisputed facts of this case.” App. at 197. As for the
requisite affirmative act, the magistrate judge noted that “Deputy Dow admits that he
voluntarily handed over his loaded gun and Reserve Deputy Sheriff badge to Joshua
Dow, drove Joshua Dow to the area where the Plaintiff had been seen, and asked
Joshua Dow . . . to locate and assist with apprehending [Mr. Waugh].” Id. As for the
requisite private violence, the magistrate judge noted that “it is undisputed that
Joshua Dow’s actions constituted ‘private’ – i.e., non-state-actor – conduct.” Id. at
197-98. The magistrate judge went on to hold there was a sufficient evidentiary basis
for a jury to find facts that would, in turn, satisfy the elements of the state-created
danger claim. See id. at 198-205.
The magistrate judge then considered whether the operative constitutional
principle was established with sufficient clarity that a reasonable officer in his
See Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 926-27 (10th Cir. 2012)
(discussing Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir. 2008), and Ruiz v.
McDonnell, 299 F.3d 1173, 1183 (10th Cir. 2002)).
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position would have understood that he was violating it, so as to preclude qualified
immunity. Id. at 205-07. The magistrate judge dismissed Deputy Dow’s objection
that there were no factually analogous decisions to put him on notice that his conduct
was unconstitutional, explaining that a plaintiff need not present an identical case to
show the law was clearly established and that officials “‘can still be on notice that
their conduct violates established law even in novel factual circumstances.’” Id. at
206-07 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). Noting that
constitutional liability for private violence arising from state-created dangers was
well established, the magistrate judge concluded that “a reasonable official in Deputy
Dow’s position on August 28, 2010 would have understood that his conduct violated
[Mr. Waugh’s] substantive due process rights.” Id. at 207. The district court
summarily adopted the magistrate judge’s analysis and conclusion. See id. at 291.
III. ANALYSIS OF ISSUES RAISED ON APPEAL
Deputy Dow raises the following issues on appeal: (1) whether this circuit’s
precedent adopting a “deliberate indifference” (as opposed to an “intent to harm”)
version of the “shock the conscience” standard for cases in which the defendant had
time to deliberate before acting is contrary to County of Sacramento v. Lewis,
523 U.S. 833 (1998); (2) whether the conditions for use of the deliberate-indifference
standard are present and, if so, whether his conduct satisfied it; (3) whether the
magistrate judge properly invoked the state-created danger theory; (4) whether the
conditions for use of the state-created danger theory are present; (5) whether Deputy
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Dow was entitled to summary judgment on the state-created danger theory; and
(6) whether Deputy Dow should in any event have been granted qualified immunity
because the applicability of the state-created danger theory to his conduct was not
clearly established. We consider these issues in order below.
A. Challenge to Validity of Deliberate-Indifference Version of
Shock-the-Conscience Standard
Deputy Dow concedes that a line of Tenth Circuit precedent, relying on
language in Lewis, holds that a deliberate-indifference standard (rather than an
intent-to-harm standard) governs the inquiry into the defendant’s state of mind for
purposes of applying the shock-the-conscience test in police pursuit cases when the
defendant had time for actual deliberation before engaging in the conduct alleged to
have violated the plaintiff’s rights. See Aplt. Op. Br. at 20, 22.4 Deputy Dow urges
us to disavow this precedent, which he contends misread Lewis, and adopt a
bright-line test requiring intent to harm in all police pursuit cases. But “absent
en banc consideration or an intervening Supreme Court decision that is contrary to or
invalidates our previous analysis,” we must adhere to existing circuit precedent.
United States v. Nichols, 775 F.3d 1225, 1230 (10th Cir. 2014) (ellipses, brackets,
and internal quotation marks omitted). Deputy Dow may believe our case law is
4
Citing Green v. Post, 574 F.3d 1294 (10th Cir. 2009); Graves v. Thomas,
450 F.3d 1215 (10th Cir. 2006); Perez v. Unified Gov’t of Wyandotte County/Kansas
City, Kan., 432 F.3d 1163 (10th Cir. 2005); Radecki v. Barela, 146 F.3d 1227
(10th Cir. 1998).
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inconsistent with Lewis, but Lewis obviously does not constitute intervening
precedent with respect to our cases that have followed it.
B. Applicability of Deliberate-Indifference Standard
Deputy Dow contends that the deliberate-indifference standard should not, in
any event, have been used here, because the evidence established that he had not had
the requisite time for actual deliberation before seeking his brother’s assistance. As
noted earlier, the district court recognized that a fact dispute existed as to the precise
amount of time involved, but concluded that there was, in any event, enough time for
deliberation to warrant application of the deliberate-indifference standard.5
To the extent Deputy Dow challenges the district court’s recognition of a
genuine dispute of historical fact, we lack jurisdiction to review the matter absent a
blatant contradiction with the record, which is not evident here. See Lewis v. Tripp,
604 F.3d 1221, 1225-26 (10th Cir. 2010). Deputy Dow’s own evidence, on which he
relies to argue that the time for deliberation was established as three minutes, is not
so definite or conclusive as to blatantly contradict any other time period. His police
report prepared a day after the incident, see App. at 164, notes receipt of a 2:00 pm
dispatch informing him of the assault on the recovery agents at a convenience store
5
Because the proper standard is a question of law, when there is a disputed
choice between a deliberate-indifference and an intent-to-harm standard it would be
error to simply assume the applicability of the deliberate-indifference standard—as a
court should assume a disputed fact—in favor of the non-movant plaintiff. See
Perez, 432 F.3d at 1165, 1168. Here the district court properly chose the applicable
legal standard only after concluding that its factual predicate had been satisfied.
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and Deputy Phillips’ lone pursuit of the assailant. It then recounts his subsequent
arrival in the area, his contact with a witness who explained where Mr. Waugh had
entered the nearby woods, and his assignment of Joshua to join the search. The
report then states that he received a call at 2:24 from Deputy Phillips, whom he told
about Joshua assisting in the search. Thus, the report shows that some appreciable
time certainly elapsed before Deputy Dow sent Joshua into the woods, but it must
have been less than 24 minutes. Deputy Dow also attached an affidavit to his
summary judgment motion that added a little detail about his activity following the
2:00 p.m. dispatch. It stated that after receiving the dispatch, he and his brother
“began driving through the back roads near the woods and [convenience store].” Id.
at 120. During this drive through the area, he saw the witness who flagged them
down and told them where Mr. Waugh had entered the woods. He then gave Joshua
the gun and his badge and asked him to go into the woods after Mr. Waugh.
Considering the above evidence and all reasonable inferences therefrom in a
light most favorable to Mr. Waugh, it would have been proper to conclude that
Deputy Dow had enough time (albeit less than 24 minutes) for actual deliberation
before sending his brother to look for Mr. Waugh. After the magistrate judge so
concluded, Deputy Dow submitted another affidavit, some three and a half years after
the fact, stating that he “estimate[d] that from the time [he] received the call from
dispatch to the time [he] dropped Josh off, a total of three (3) minutes had passed.”
Id. at 270. This, he insists, indisputably established an elapsed time of three minutes,
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which he contends was too short to permit actual deliberation. We disagree. Such a
mere subjective “estimate” (offered long after the event by an obviously interested
witness) is not definitive or conclusive evidence a jury would have to accept as
establishing the fact estimated, particularly when there is evidence from which a
different fact (a time greater than three but less than twenty-four minutes) could
reasonably be found. Under the circumstances, the district court properly held that
deliberation time remained a genuine issue of fact.6
In any event, even three minutes to consider arming his brother and asking him
to join in the search for Mr. Waugh should have been sufficient to allow Deputy Dow
to engage in actual deliberation under the circumstances. While there undoubtedly
was a sense of urgency in getting to the scene to assist Deputy Phillips during this
time, there is no evidence of other immediate demands on Deputy Dow’s attention
that would have prevented deliberate consideration of the decision to ask his brother
to assist. That discrete and distinct decision is not comparable to the actions of an
officer who engages in a high-speed pursuit of another vehicle—the paradigmatic
6
In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150-51 (2000),
the Supreme Court held that a court ruling on summary judgment should disregard all
evidence favorable to the moving party that the jury is not required to believe. It
went on to explain that this did not bar evidence favoring the movant “that is
uncontradicted and unimpeached, at least to the extent that the evidence comes from
disinterested witnesses.” Id. While we need not and do not hold that Deputy Dow’s
self-serving estimate must be disregarded outright, we take guidance from Reeves in
holding that this estimate, which a jury would not have been required to accept as
establishing the actual time elapsed, does not establish the relevant time period as
three minutes for purposes of summary judgment here.
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example of the absence of actual deliberation—where constant, immediate, and
changing demands on the officer’s attention requiring instant judgment may excuse
“even precipitate recklessness” and thus warrant an intent-to-harm standard. Lewis,
523 U.S. at 853. Similarly, if this case concerned a reflexive decision to speed to the
scene (or an act of reckless driving on the way), the intent-to-harm standard could
well apply, see, e.g., Perez, 432 F.3d at 1164-65, 1168 (assessing fireman’s decision
to run red light in speeding to fire under Lewis standard). But again, the course of
action adopted by Deputy Dow, after a short but sufficient time to consider it, is not
of the same sort as these reactive actions. We agree with the district court that the
appropriate standard here is deliberate indifference, not intent to harm.7
Deputy Dow argues in the alternative that, even if the deliberate-indifference
standard is applicable, the district court erred in holding that his conduct was reckless
or egregious enough to satisfy that standard. Because this argument goes to one of
the elements of the state-created danger theory, we consider it with his challenges to
other elements of that theory in section E below.
7
This court has noted that actual deliberation is “not necessarily defined with
reference to minutes or seconds,” but involves a “context-specific” consideration of
the circumstances surrounding the decision in question. Green, 574 F.3d at 1301 n.8.
Thus, for example, while maneuvers during a high-speed vehicle chase do not
involve actual deliberation, an officer’s calculated decision to pull his vehicle behind
a suspect and turn on his lights (prompting a high-speed chase) does involve actual
deliberation. See Graves, 450 F.3d at 1222. Deputy Dow’s decision to have his
brother assist in the search for Mr. Waugh involved comparable calculation and the
time to engage in it.
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C. Magistrate Judge’s Invocation of the State-Created Danger Theory
Deputy Dow insists the magistrate judge crossed the line separating proper
liberal construction of Mr. Waugh’s pro se pleadings from improper advocacy on
Mr. Waugh’s behalf by construing his complaint to include the state-created danger
theory that has come to frame the analysis of this aspect of the case. We disagree.
The facts Mr. Waugh alleged pointed to this theory, which falls within the due
process rubric he generally invoked. We have previously explained that “if the court
can reasonably read [pro se] pleadings to state a valid claim on which the plaintiff
could prevail, it should do so despite the plaintiff’s failure to cite proper legal
authority [and] his confusion of various legal theories.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). The magistrate judge reasonably acknowledged the
legal theory implicated by Mr. Waugh’s pleadings,8 and Deputy Dow was afforded
ample opportunity, through objections to the report and recommendation, both to
challenge this theory on the merits and to argue for qualified immunity in relation to
it. We discern no reversible error in this respect.
8
Deputy Dow cites Smith v. United States, 561 F.3d 1090 (10th Cir. 2009), in
which we stated that a court should “not supply additional factual allegations to
round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s behalf.”
Id. at 1096 (internal quotation marks omitted). But here, in contrast, the magistrate
judge simply clarified the legal theory under which the alleged facts and asserted
constitutional right should be tested.
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D. Applicability of State-Created Danger Theory – Private Violence
One of the conditions for applying the state-created danger theory is the
exposure of the plaintiff to private violence. See generally Gray, 672 F.3d at 927-28
(discussing nature of and rationale for this condition). The magistrate judge found
this condition satisfied by the fact that Joshua Dow was not a state actor. Deputy
Dow objects that this determination is contradicted by the magistrate judge’s (and
district court’s) separate ruling that, for purposes of Joshua Dow’s potential liability
under 42 U.S.C. § 1983, he could be found by the jury to qualify as a state actor
through a theory of “joint action” with Deputy Dow, see App. at 218-21; see also id.
at 292-93. There is no contradiction here, at least at this stage of the proceedings.
Even if a finding of joint action for purposes of a private actor’s liability under
§ 1983 would be controlling with respect to the distinct inquiry regarding private
violence for purposes of a separate state-created danger claim—a point on which we
express no opinion—all that has been held thus far is that a jury could find joint
action. That ruling does not alter Joshua Dow’s actual extant status as a private
actor.
E. Summary Judgment on State-Created Danger Claim
A government officer asserting qualified immunity may take an interlocutory
appeal from the denial of summary judgment, but he is limited to raising purely legal
challenges to the ruling. York v. City of Las Cruces, 523 F.3d 1205, 1209 (10th Cir.
2008). Thus, we may consider the following two legal questions here: whether the
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operative facts (i.e., the undisputed facts and facts the district court concluded a
reasonable jury could find in favor of Mr. Waugh) suffice to show a violation of
Mr. Waugh’s rights under the state-created danger theory; and whether those rights
were clearly established at the time of the alleged violation. See Lewis v. Tripp,
604 F.3d at 1225. We generally may not review the district court’s conclusion that a
reasonable jury could find particular facts in favor of the plaintiff. Id.9
As noted above, a state-created danger claim requires a showing that (1) the
defendant created or increased a risk of danger to the plaintiff; (2) the risk was
directed at the plaintiff in particular; (3) the risk was substantial and involved
serious, immediate, and proximate harm; (4) the risk was obvious or known; (5) the
defendant acted recklessly in conscious disregard of the risk; and (6) the defendant’s
conduct shocks the conscience. The last four elements overlap with the
deliberate-indifference standard discussed earlier, which “encompasses conscious,
deliberate indifference to an extreme risk of very serious harm to the plaintiff,”
where “extreme” means “egregious or outrageous to the extent that it shocks the
judicial conscience.” Green, 574 F.3d at 1303. Deputy Dow challenges all but the
second element.
9
“Facts,” i.e., “the who, what, when, where, and why” of the events underlying
a constitutional claim, Lewis, 604 F.3d at 1226, should be distinguished from the
subsidiary elements of such a claim. Whether the historical facts can satisfy the
elements of a state-created-danger claim is a question appropriate for our review on
this qualified immunity appeal. See, e.g., Armijo ex rel. Chavez v. Wagon Mound
Pub. Sch., 159 F.3d 1253, 1264 (10th Cir. 1998).
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Addressing the first, third, and fourth elements together, the magistrate judge
stated:
Deputy Dow’s transport of Joshua Dow to [Mr. Waugh’s] proximate
location and provision to him of a loaded service pistol and official
badge, coupled with instructions to locate [Mr. Waugh], are facts from
which it may reasonably be inferred that Deputy Dow’s conduct resulted
in a risk of serious, immediate, and proximate harm to [Mr. Waugh]. . . .
This risk may reasonably be inferred to have been obvious or known to
Deputy Dow, and no reasonable allegation or evidence has been
presented that would indicate otherwise.
App. at 199. In addressing the fifth element and holding that “a reasonable juror
could conclude that Deputy Dow acted recklessly or intentionally to create a danger
to [Mr. Waugh], with conscious disregard of the known and specific risk to
[Mr. Waugh],” id. at 199-200, the magistrate judge noted additional facts relevant to
the previous elements as well:
Deputy Dow actively gave his badge and a pistol, which was loaded
with ammunition, to a private actor and sent him into an area where a
fugitive was loose, for the express purpose of locating the fugitive. . . .
There is no argument or evidentiary material in the record indicating
that Joshua Dow had any law enforcement training or experience,
including for example knowledge of the proper procedure for
apprehending a suspect or when force may be used. There is no
argument or evidentiary material in the record indicating that Deputy
Dow was asked or authorized, by any official at the Major County
Sheriff’s Office, to “deputize” his brother, gather a posse, or otherwise
seek assistance from any other private citizen; rather, deputy Deputy
Dow had no such authority.[10] There is no argument or evidentiary
10
The magistrate judge was correct that Deputy Dow had not been asked or
authorized by the Sheriff to have Joshua assist in apprehending Mr. Waugh. But, as
noted earlier, Deputy Dow did have statutory authority to ask for citizen assistance,
although it is not clear this authority extends to arming citizens (and, again, he never
claimed to have deputized Joshua). In any event, while this point is relevant to the
(continued)
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material in the record indicating that Deputy Dow instructed Joshua
Dow to avoid [Mr. Waugh] and only use the firearm if needed to protect
himself;[11] rather the affidavit testimony permits a conclusion that the
entire purpose of Deputy Dow’s actions was for Joshua Dow to look for
and assist in apprehending [Mr. Waugh].
Id. at 200-01 (citations omitted).
In addressing the sixth element and holding that Deputy Dow’s conduct was
egregious enough to be found conscience shocking, the magistrate judge began by
summarizing the general circumstances recited above:
These facts permit a reasonable inference that Deputy Dow, without
authorization and not pursuant to any sort of approved policy, armed a
private citizen with a loaded gun and the insignia of law enforcement,
and sent him into an area believed to contain a fugitive, with explicit
direction to look for the fugitive, the result of which was a confrontation
where the private citizen shot the fugitive.
Id. at 202. With the caveat explained in footnote 10 above, this summary is
supported by the record. The magistrate judge then pointed out that Joshua Dow’s
involvement could easily have been avoided:
analysis, the dispositive issue here is not general abstract authority under state law
but the circumstance-specific risk to which Mr. Waugh was exposed and Deputy
Dow’s reckless disregard of that risk in violation of federal constitutional law. As
Lewis and many circuit decisions reflect, although police officers have authority to
disregard traffic laws such as speed limits and traffic lights, that does not preclude or
obviate a court’s consideration of whether, in particular circumstances, such actions
are so egregious as to trigger liability to injured persons under constitutional
standards.
11
On appeal, Deputy Dow points to his affidavit wherein he averred that his
purpose in arming Joshua was solely for Joshua’s protection. But the critical point
noted by the magistrate judge is the lack of evidence that Deputy Dow communicated
this limitation on use of the gun to Joshua.
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[T]he two brothers did not unexpectedly and unavoidably find
themselves in the path of a manhunt. Rather, after driving to the area
where the search was being conducted, Deputy Dow dispatched Joshua
Dow into the woods for the purpose of locating the suspect. There was
opportunity to leave Joshua Dow at another location, have him stay in
the vehicle where there was no possibility of him being mistaken for the
fugitive [the stated reason Deputy Dow gave Joshua his badge], or have
him take the vehicle and retreat to a safer location.
Id. (brackets, citation, and internal quotation marks omitted). The magistrate judge
further noted a jury could find that the circumstances provided no justification for the
extreme action of arming a private citizen and sending him after a fugitive:
[T]he evidentiary material before the Court permits a reasonable
inference that the circumstances were not so alarming as to warrant
Deputy Dow’s actions. The search for [Mr. Waugh] was already being
undertaken by two trained law enforcement officers (Deputy Phillips
and Deputy Dow), as well as two private fugitive recovery agents.[12]
While exigent circumstances may in extreme instances warrant the
involvement of a private citizen in a search for a fugitive, a reasonable
jury could question whether such circumstances were present in this
case.
Id. at 202-03.13
On the basis of the foregoing, the magistrate judge ultimately concluded that
“the ‘cumulative impression’ of Deputy Dow’s conduct could be found to have
exhibited a blatant disregard for harm of a very great magnitude to [Mr. Waugh],
12
We note, however, that the evidence indicates Deputy Dow was not informed
that the recovery agents had joined Deputy Phillips in pursuing Mr. Waugh into the
woods after being assaulted at the convenience store.
13
In this same vein, the magistrate judge noted that Deputy Dow had time to
contact dispatch to ask for more relevant information, such as whether Mr. Waugh
was unarmed. See App. at 203-04.
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which could be characterized as arbitrary, or conscience shocking, in a constitutional
sense.” Id. at 204-05 (internal quotation marks omitted). The district court agreed:
“It is not a large leap of logic to find that arming a private citizen and sending him
into a wooded area in search of a fugitive creates a[n] extreme risk of serious harm.
The Court agrees that Deputy Dow’s conduct was conscience shocking.” Id. at 291.
Deputy Dow challenges this determination on all but the second element. As
to the first, he argues that he did not create or increase any danger for Mr. Waugh,
because he gave Joshua the gun only for self-protection. As already noted, however,
the critical point is whether he told Joshua to restrict his use of the gun in this way
and there is no evidence he did. He also argues that he did not expose Mr. Waugh to
any increased danger, because Mr. Waugh was already being followed by the armed
Deputy Phillips. But unlike Joshua, Deputy Phillips was a trained law enforcement
officer who presumably would not shoot an unarmed suspect at the behest of a
bounty hunter.
Deputy Dow challenges the third, fourth, and fifth elements through his
argument that his conduct did not meet the deliberate-indifference standard discussed
earlier. As for the requirement of a substantial risk of serious, immediate, and
proximate harm, he points again to his averment that he gave Joshua the gun solely
for Joshua’s protection. We have just explained the problem with this argument. He
also contends that he did not know Joshua would shoot Mr. Waugh and that there was
no evidence indicating he was aware this might happen or intended for it to happen.
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But a jury could reasonably find from the circumstances that the risk was obvious
and that his conduct reflected a reckless disregard for that risk, which is all that must
be shown.
As for the sixth element, requiring deliberate indifference that shocks the
conscience, Deputy Dow emphasizes his statutory authority for seeking citizen
assistance in the apprehension of fugitives, but it is not at all clear that such authority
extends to giving the citizen in question a gun and a badge and sending him after a
fugitive without clarification regarding the proper limited use of the gun. In any
event, as we have explained, see supra note 10, the overarching determination here is
one of federal constitutional law, under which an officer may be liable for creation
of, and conscience-shocking deliberate indifference to, a substantial risk of serious
harm to another—whether or not the general type of conduct the officer engaged in
was authorized under state law. We agree with the district court that considering all
of the circumstances, Deputy Dow’s conduct demonstrated a recklessness that could
be found to shock the conscience.
F. Qualified Immunity – Clearly Established Law
The law governing the constitutional assessment of Deputy Dow’s conduct, as
to both the state-created danger theory and the deliberate-indifference standard for
actions taken with time for actual deliberation, was clearly established at the time of
the operative events—as evident from the precedent cited throughout this decision.
While none of this precedent involved a citizen-assistance situation like that here,
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“[a] previous decision need not be materially factually similar or identical to the
present case; instead, the contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing violates that right.”
Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (internal quotation marks
omitted). And this circuit has noted that “the more obviously egregious the conduct
in light of prevailing constitutional principles, the less specificity is required from
prior case law to clearly establish the violation.” Shroff v. Spellman, 604 F.3d 1179,
1190 (10th Cir. 2010) (internal quotation marks omitted). Applying these standards
to the record developed thus far, we agree with the district court that a reasonable
officer in Deputy Dow’s position would have understood that his conduct—involving
the creation of, and a conscience-shocking deliberate indifference to, a substantial
risk of serious and immediate harm to Mr. Waugh—violated Mr. Waugh’s
constitutional rights.
IV. CONCLUSION
For the reasons explained above, we affirm the district court’s denial of
summary judgment for Deputy Dow on the ground of qualified immunity as to
Mr. Waugh’s state-created danger claim. The district court, of course, “remains free
to reconsider its qualified immunity question as the facts are developed and decided”
in further proceedings, including trial, “[b]ut for now our obligation to view facts in
the light most favorable to Mr. [Waugh] makes the entry of any final judgment [for
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Deputy Dow] impossible.” Blackmon v. Sutton, 734 F.3d 1237, 1243 (10th Cir.
2013).
The order of the district court is affirmed.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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