Robert Turner v. Al Thomas, Jr. , 930 F.3d 640 ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-1733
ROBERT SANCHEZ TURNER,
Plaintiff - Appellant,
v.
AL THOMAS, JR., in his individual capacity and his official capacity as Chief of
Charlottesville Police Department; CITY OF CHARLOTTESVILLE, VIRGINIA;
W. STEVEN FLAHERTY, in his individual capacity,
Defendants - Appellees.
Appeal from the United States District Court for the Western District of Virginia, at
Charlottesville. Norman K. Moon, Senior, District Judge. (3:17-cv-00064-NKM-JCH)
Argued: March 21, 2019 Decided: July 19, 2019
Before FLOYD, HARRIS, and RICHARDSON, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion in which Judge Harris
and Judge Richardson joined.
ARGUED: Dallas S. LePierre, NEXUS DERECHOS HUMANOS ATTORNEYS,
INC., Atlanta, Georgia, for Appellant. Michelle Shane Kallen, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; David Patrick Corrigan,
HARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia; Richard
Hustis Milnor, ZUNKA, MILNOR & CARTER LTD, Charlottesville, Virginia, for
Appellees. ON BRIEF: Mario B. Williams, NEXUS DERECHOS HUMANOS
ATTORNEYS, INC., Atlanta, Georgia, for Appellants. Mark R. Herring, Attorney
General, Samuel T. Towell, Deputy Attorney General, Erin McNeill, Assistant Attorney
General, Toby J. Heytens, Solicitor General, Matthew R. McGuire, Principal Deputy
Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee W. Steven Flaherty. Jeremy D. Capps, Douglas E.
Pittman, HARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen,
Virginia, for Appellee Al Thomas, Jr.
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FLOYD, Circuit Judge:
Appellant Robert Sanchez Turner was attacked by protesters at the “Unite the
Right” rally on August 12, 2017 in Charlottesville, Virginia. Turner claims that, pursuant
to a stand-down order under which police officers at the rally were instructed not to
intervene in violence among protesters, officers watched his attack and did nothing to
help. Turner brought suit against Al Thomas Jr., former Chief of the Charlottesville
Police Department; W. Stephen Flaherty, Virginia State Police Superintendent; and the
City of Charlottesville. The district court concluded that Thomas and Flaherty were
entitled to qualified immunity and dismissed Turner’s complaint for failure to state a
claim. We agree with the district court that the facts alleged in Turner’s complaint do not
amount to a violation of clearly established law. Accordingly, we affirm.
I.
Because Turner’s claim was dismissed on the pleadings, we take as true all well-
pleaded allegations in the complaint. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc., 591 F.3d 250, 253 (4th Cir. 2009). On August 12, 2017, the “Unite the Right” rally
was held in Charlottesville’s Emancipation Park to protest the City’s decision to change
the Park’s name from “Lee Park” and remove a Confederate monument from its grounds.
Jason Kessler, leader of the far-right advocacy group “Unity & Security for America,”
led efforts to organize the rally.
The City granted Kessler a permit to hold the rally and informed him that heavy
police presence and security would be provided. But less than a week before the event,
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citing traffic and safety concerns, the City revoked the permit. Kessler challenged the
revocation in the Western District of Virginia on First and Fourteenth Amendment
grounds, and the district court reinstated the permit. According to Turner, Thomas and
Flaherty were “enraged” by the decision to reinstate the permit. J.A. 24. In response,
they enacted a stand-down order under which officers on duty at the rally would “refrain
from intervening in any violent confrontations between white supremacists and counter-
protesters unless given a direct command to do so.” J.A. 25. Turner alleges that officers
told protesters at the rally about the stand-down order. For example, when demonstrators
asked if police planned to respond to violent attacks, at least one officer responded by
saying “that’s not my job.” J.A. 26.
Turner attended the rally as a counter-protester. He alleges that while he
demonstrated peacefully on the sidewalk adjacent to the Park, “KKK
members/sympathizers” exited the Park and began to engage with counter-protesters.
J.A. 27–28. According to Turner, the “KKK members/sympathizers” attacked him for
more than thirty seconds, spraying his eyes with mace, beating him with a stick, and
throwing bottles of urine at him, all while police looked on and did nothing. J.A. 26.
Turner alleges that despite a warning from the Department of Homeland Security that the
rally could turn violent, police did not wear riot gear to patrol the rally. Approximately
five hours after the rally began, officers changed into riot gear and began to clear the
Park, though at that point Turner had already been attacked.
Turner brought suit under 42 U.S.C. § 1983. In relevant part, Turner sought to
hold Thomas and Flaherty directly liable for violation of his substantive due process
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rights based on the police department’s failure to protect him from violent protesters at
the rally. 1
II.
We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6),
accepting all well-pleaded facts as true and drawing all reasonable inferences in favor of
the plaintiff. See Nemet Chevrolet, 591 F.3d at 253. However, we “need not accept legal
conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or
arguments.” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (internal
quotation marks omitted). The complaint must provide “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
1
Additionally, Turner’s complaint sought to hold Thomas and Flaherty liable under a
theory of supervisory liability and the City of Charlottesville liable under Monell v.
Department of Social Services of the City of New York, 436 U.S. 658 (1978). We need
not address the supervisory-liability claim separately, because Turner has not argued that
the qualified-immunity analysis should proceed any differently for that claim. We also
find that Turner has waived his claim against the City of Charlottesville. At a hearing
before the district court, Turner said he had “dropped” this claim. J.A. 178. Then, in his
opening brief on appeal, Turner appeared to focus entirely on the qualified-immunity
issue, which does not apply to the City. In response, the City argued that this claim had
been waived; Turner declined to address the waiver argument in his reply, which did not
even mention his claim against City. It was not until oral argument that Turner sought to
preserve this claim. We conclude that Turner’s inattention to this claim on appeal,
combined with his express statement to the district court, effectively waived it.
Therefore, we do not address it.
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III.
Before us is Turner’s claim that Thomas and Flaherty violated his substantive due
process rights by ordering officers at the rally not to intervene in violence among
protesters. In general, a defendant’s mere failure to act does not give rise to liability for a
due process violation. See DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189, 196 (1989). Turner seeks to avoid that rule by invoking the state-
created danger exception, under which state actors may be liable for failing to protect
injured parties from dangers which the state actors either created or enhanced. See
Pinder v. Johnson, 54 F.3d 1169, 1176 (4th Cir. 1995). But it was not clearly established
at the time of the rally that failing to intervene in violence among the protesters would
violate any particular protester’s due process rights. Accordingly, we agree with the
district court that Thomas and Flaherty are entitled to qualified immunity, and we affirm
the dismissal of Turner’s complaint.
Qualified immunity shields state actors from liability under § 1983 liability when
their “conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Wiley v. Doory, 14 F.3d 993, 995 (4th
Cir. 1994) (quoting Harlow v. Fitzgerald, 457 US. 800, 818 (1982)). To determine
whether a defendant is entitled to qualified immunity, we ask two questions: (1) Has the
plaintiff alleged a violation of a federal right? (2) Was the right at issue clearly
established at the time of the alleged violation? Pearson v. Callahan, 555 U.S. 223, 236
(2009). We may decide, on a case-by-case basis, which question to answer first. Id. If
the answer to either question is “no,” then the defendant is entitled to qualified immunity.
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In this case, we begin by asking whether the right asserted by Turner was clearly
established at the time of its alleged violation. To determine whether a right was clearly
established, we typically ask whether, when the defendant violated the right, there existed
either controlling authority—such as a published opinion of this Court—or a “robust
consensus of persuasive authority,” Booker v. S.C. Dept of Corr., 855 F.3d 533, 544 (4th
Cir. 2017) (internal quotation marks omitted), that would have given the defendants “fair
warning that their conduct was wrongful.” Williamson v. Stirling, 912 F.3d 154, 187 (4th
Cir. 2018) (internal quotation marks omitted). Thus, we must determine whether, at the
time of the rally, there existed legal authority giving Thomas and Flaherty fair warning
that ordering officers not to intervene in violence among protesters would implicate the
state-created danger doctrine and amount to a violation of protesters’ due process rights.
As our starting point, we turn to DeShaney v. Winnebago County, 489 U.S. at 196.
There, the Supreme Court stated that because the Fourteenth Amendment was intended to
protect “the people from the State, not to ensure that the State protected them from each
other . . . [a]s 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.” Id. at 196–
97. Given that “the Due Process Clause does not require the State to provide its citizens
with particular protective services,” wrote the Court, “it follows that the State cannot be
held liable for injuries that could have been averted had it chosen to provide them.” Id. at
196–97.
There are two exceptions to the rule laid out in DeShaney. The first arises when
the individual and the state have a “special relationship,” such as a custodial relationship,
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that gives rise to an affirmative duty to protect. See id. at 199–200 (“It is the State’s
affirmative act of restraining the individual’s freedom to act on his own behalf . . . which
is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its
failure to act to protect his liberty interests against harms inflicted by other means.”).
Turner does not claim that the “special relationship” exception applies in this case.
The second, which DeShaney implicitly recognized and which Turner relies upon
here, is known as the state-created danger doctrine. See id. at 201 (“While the State may
have been aware of the dangers that [the child] faced . . . it played no part in their
creation, nor did it do anything to render him any more vulnerable to them.”). Under this
doctrine, a state actor may be held liable for harm resulting from “affirmative actions”
that created or enhanced the dangerous conditions that produced the plaintiff’s injury.
See Pinder, 54 F.3d at 1176. “[T]o establish § 1983 liability based on a state-created
danger theory, a plaintiff must show that the state actor created or increased the risk of
private danger, and did so directly through affirmative acts, not merely through inaction
or omissions.” Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015). “Put another way, ‘state
actors may not disclaim liability when they themselves throw others to the lions,’ but that
does not ‘entitle persons who rely on promises of aid to some greater degree of protection
from lions at large.’” Id. (quoting Pinder, 54 F.3d at 1177).
As we recognized in Pinder, the state-created danger doctrine is narrowly drawn,
and the bar for what constitutes an “affirmative act” is high. 54 F.3d at 1175. In that
case, plaintiff Pinder called the police on her former boyfriend, Pittman, who had broken
into her home, assaulted her, and threatened to kill her and her three children. Id. at
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1172. After Pittman was arrested, Pinder asked the investigating officer if it would be
safe for her to return to work that evening and leave her children at home. Id. The
officer assured her that Pittman would be detained overnight on assault charges and could
not be released until the county commissioner became available for a hearing the
following morning. Id. However, instead of the assault charge, the officer filed lesser
charges against Pittman, and he was released from custody that night. Id. Pittman then
returned to Pinder’s home after she left for work and set fire to it, killing her three
children who were sleeping inside. Id.Pinder brought a due process claim against the officer who had assured her that
Pittman would be detained overnight, seeking to invoke the state-created danger doctrine.
Id. at 1175. We rejected this application of the doctrine, however, holding that the officer
did not create the danger that resulted in the children’s death, but “simply failed to
provide adequate protection from it.” Id. “It cannot be,” we noted, “that the state
‘commits an affirmative act’ or ‘creates a danger’ every time it does anything that makes
injury at the hands of a third party more likely.” Id. (internal quotation marks omitted).
We acknowledged that “[a]t some point on the spectrum between action and inaction, the
state’s conduct may implicate it in the harm caused,” but we concluded that “no such
point [was] reached” in Pinder’s case. Id.; see also id. at 1176 n.* (observing that
although “inaction can often be artfully recharacterized as ‘action,’ courts should resist
the temptation to inject this alternate framework into omission cases by stretching the
concept of ‘affirmative acts’ beyond the context of immediate interactions between the
officer and the [victim]”).
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Following Pinder’s narrow reading of the state-created danger doctrine, we have
never issued a published opinion recognizing a successful state-created danger claim.
Rather, our precedent on the issue has emphasized the doctrine’s limited reach and the
exactingness of the affirmative-conduct standard. For instance, in Doe v. Rosa, we held
that the state-created danger doctrine did not apply when a college president, Rosa, failed
to intervene after learning that a counselor at the college’s summer camp sexually abused
campers for several years. 795 F.3d at 431. One of the counselor’s victims and the
victim’s family (the “Does”) brought suit, claiming that Rosa not only failed to report the
abuse, but also actively took steps to conceal it. Id. For example, the Does alleged that
Rosa omitted abuse allegations from relevant records and purposefully obfuscated the
nature of the Does’ complaint to college officials. Id. at 434–35. We held that the Does’
claims did not describe the “affirmative actions” necessary to implicate the state-created
danger doctrine. Id. at 441 (“No amount of semantics can disguise the fact that the real
‘affirmative act’ here was committed by [the counselor] not by Rosa.”). We noted that
the Does’ claims “lack[ed] the nexus necessary for any of Rosa’s alleged conduct to be
‘affirmative acts’” that created or enhanced the danger to the Does, specifically, because
Rosa “did not meet or speak with the Does, and by all accounts, was not even aware
[they] existed.” Id.
Against this background, we conclude that it was not clearly established at the
time of the rally that ordering officers not to intervene in private violence between
protesters was an affirmative act within the meaning of the state-created danger doctrine.
Our precedent sets an exactingly high bar for what constitutes affirmative conduct
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sufficient to invoke the state-created danger doctrine. Turner has put forth no facts
suggesting that a stand-down order crosses the line from inaction to action when the state
conduct in Pinder and Doe did not. Acting under Pinder’s teaching that state actors may
not be held liable for “st[anding] by and d[oing] nothing when suspicious circumstances
dictated a more active role for them,” Thomas and Flaherty could have reasonably
concluded that a stand-down order violated no constitutional right. 54 F.3d at 1175.
Accordingly, Turner has not alleged a violation of clearly established law, and Thomas
and Flaherty are entitled to qualified immunity. 2
IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
2
Turner argues that in assessing the merits of his substantive due process claim, we
should ask whether Thomas and Flaherty acted with deliberate indifference to Turner’s
safety. But as we have stated, “apart from situations involving custody, the Supreme
Court has never applied a ‘deliberate indifference’ standard merely because the State
created a danger that resulted in harm.” Slaughter v. Mayor & City Council of Baltimore,
682 F.3d 317, 321 (4th Cir. 2013); see also Waybright, 528 F.3d 199, 205 (4th Cir. 2008)
(“For a due process challenge to executive action to succeed, the general rule is that the
action must have been ‘intended to injure in some way unjustifiable by the government
interest.’”). Because there was no clearly established law imposing liability based on
deliberate indifference in this context, qualified immunity shields Thomas and Flaherty
from such liability.
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