Johnson v. Dallas Independent School District , 38 F.3d 198 ( 1994 )

United States Court of Appeals,
Fifth Circuit.
No. 93-1214.
Andrew JOHNSON, Individually and as heir to and/or personal
representative of the estate of Andrew Gaston, his deceased son,
Plaintiff-Appellant,
v.
DALLAS INDEPENDENT SCHOOL DISTRICT and Donnie Breedlove,
Defendants-Appellees.
Nov. 17, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before GOLDBERG, JONES and DUHÉ, Circuit Judges:
EDITH H. JONES, Circuit Judge:
Andrew Gaston's last moments on earth were passed in the
hallway at A. Maceo Smith High School in Dallas, Texas. He was hit
in the head by a stray bullet shot during a melee instigated by the
killer, non-student Drumestic Contreal Brown. The question before
this court is whether Gaston had either (1) a constitutional right
not to be placed in danger of deadly violence while at school or
(2) a more general constitutional right to some level of
affirmative protection while at school. Despite our sympathy for
Andrew's untimely death, we find no constitutional damage remedy
available to his family.
The § 1983 case1 filed by Gaston's father against Dallas
1
State law causes of action were also pled in the complaint,
but they were dismissed on the basis that Texas law indisputably
shields school districts and their employees from this kind of
liability. The complaint did not assert any claim founded on the
Texas constitution.
1
Independent School District and Donnie Breedlove, the principal of
Smith High, was dismissed for failure to state a claim.
Fed.R.Civ.P. 12(b)(6). The skeletal pleadings, our only guide to
the facts, reveal few details of the incident in which Gaston died.
They state that the assailant Brown somehow rode a school bus2 to
Smith High on the morning of October 23, 1991. Brown went onto
campus and into the high school building although he was not
wearing a student ID badge required in some of DISD's schools.
Further, Brown carried a concealed handgun, which was not
discovered because the metal detectors placed by DISD at the school
were not being used. Brown then created a disturbance, causing
students—allegedly without the aid of school employees—to attempt
to evict him. Gaston was tragically in the line of fire when Brown
shot his gun.
The district court's conscientiously reasoned dismissal rested
on three pivotal elements of a § 1983 claim.3 First, the court
held, Gaston had no affirmative constitutional right to protection
by DISD while he was at school. Second, because plaintiff had not
pled that DISD's actions, custom, or policy caused Gaston's death,
DISD could not be held constitutionally liable. Third, plaintiff
had not pled facts sufficient to overcome principal Breedlove's
assertion of qualified immunity. This court may affirm the
2
DISD is quick to point out that it did not run the school
bus—that service was contracted out to a private company.
3
This opinion discusses only the § 1983 claim because the
district court ruled correctly on the other issues asserted by
appellant.
2
dismissal for failure to state a claim only if "it appears "beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.' " Haines v. Kerner,
404 U.S. 519, 520-21; 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972)
(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2
L. Ed. 2d 80 (1957)).
The epidemic of violence in American public schools is a
relatively new phenomenon, but one which has already generated
considerable caselaw. Whether that epidemic invokes constitutional
consequences for the innocent, law-abiding students forced to
attend those schools raises grave questions that must be carefully
analyzed.
To plead a constitutional claim for relief under § 1983,
Gaston's father had to allege a violation of a right secured to
Andrew by the Constitution or laws of the United States and a
violation of that right by one or more state actors. Against the
Dallas Independent School District, he had to allege that an
unconstitutional custom or policy of DISD caused the violation.
See Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th
Cir.1994). In this as in other similar cases, two potential
theories of constitutional liability have been proposed. First, it
may be contended that DISD and Principal Breedlove "violated
[Andrew's] constitutional rights by affirmatively creating the
hazardous environment" in which he attended school. Id. at 530.
Alternatively, Andrew's father asserts that the state bore Andrew
an affirmative duty of care arising from the state's compulsory
3
attendance laws. These theories will be discussed in turn.
1. State-Created Danger
When state actors knowingly place a person in danger, the due
process clause of the constitution has been held to render them
accountable for the foreseeable injuries that result from their
conduct, whether or not the victim was in formal state "custody."
This principle has been applied in a number of cases from other
circuits. Three cases exemplify the state-created danger theory of
liability. In Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989),
cert. denied, 498 U.S. 938, 111 S. Ct. 341, 112 L. Ed. 2d 305 (1990),
a police officer arrested a drunken driver and impounded his car,
leaving the female passenger alone at night, without any means to
go home, in a neighborhood known for criminal activity. She was
raped by a stranger who offered her a lift. In Cornelius v. Town
of Highland Lake, 880 F.2d 348 (11th Cir.1989), cert. denied, 494
U.S. 1066, 110 S. Ct. 1784, 108 L. Ed. 2d 785 (1990), the state
permitted a prisoner with a violent criminal history to participate
in a work program at a municipal town hall under the supervision of
an untrained city employee. He gained access to a knife, abducted
the plaintiff who worked for the city, and held her hostage for
three days. Finally, in K.H. ex rel. Murphy v. Morgan, 914 F.2d
846 (7th Cir.1990), the state removed a sixteen-month-old child
from her parents' custody and in the next four years shuttled her
among eleven foster homes, in at least two of which she was
molested or abused. The court held that, if the allegations of the
child's complaint were correct, state officials could be guilty of
4
knowingly subjecting her to serious psychological damage. See also
White v. Rochford, 592 F.2d 381, 384-85 (7th Cir.1979) (state
liable for injuries to minor children left in car on side of busy
highway after state officer arrested the driver). Although
different facts underlie each of these cases, the courts uniformly
held that state actors may be liable if they created the
plaintiffs' peril, increased their risk of harm, or acted to render
them more vulnerable to danger.4
In contrast to these cases, but not in conflict, stands D.R.
v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364(3rd Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S. Ct.
1045, 122 L. Ed. 2d 354 (1993), in which the Third Circuit held en
banc that a school could not be liable for a series of sexual
assaults allegedly committed against two female students in the
unisex bathroom and a darkroom of the school's graphic arts class.
The abuse allegedly occurred during class, virtually under the eye
of a teacher trainee, two to four times weekly for an entire
semester. Unlike the preceding state-created danger cases,
however, the facts in Middle Bucks did not sufficiently demonstrate
that the state placed the plaintiffs in danger, increased their
4
Compare Salas v. Carpenter, 980 F.2d 299 (5th Cir.1992);
Bryson v. City of Edmond, 905 F.2d 1386, 1392 (10th Cir.1990) (No
liability of state for deaths of post office employees shot by
fellow employee where responding police officers did not create
the dangerous situation or worsen decedents' plights); Jackson
v. City of Joliet, 715 F.2d 1200, 1206 (7th Cir.1983), cert.
denied, 465 U.S. 1049, 104 S. Ct. 1325, 79 L. Ed. 2d 720 (1984)
(police conduct was held not the cause of the plaintiffs'
injuries when officer did not know that there were occupants in a
burning car and did not render aid); Brown v. Grabowski, 922
F.2d 1097 (3d Cir.1990).
5
risk of harm, or made them more vulnerable to danger. A classroom
is not per se dangerous, nor can it ordinarily be expected that
even an undertrained teacher will permit or be ignorant of sexual
molestation going on in class. The risk that some students would
sexually molest other students during a class was not found to be
foreseeable to or known by school officials.5
The key to the state-created danger cases, and the essence of
their distinction from Middle Bucks, lies in the state actors'
culpable knowledge and conduct in "affirmatively placing an
individual in a position of danger, effectively stripping a person
of her ability to defend herself, or cutting off potential sources
of private aid." Wideman v. Shallowford Community Hospital, Inc.,
826 F.2d 1030, 1035 (11th Cir.1987). See also L.W. v. Grubbs, 974
F.2d 119, 121 (9th Cir.1992) (state officials knowingly assigned
violent, habitual sex offender to work alone with female prison
employee and did not inform her of the risk). Thus the environment
created by the state actors must be dangerous; they must know it
is dangerous; and, to be liable, they must have used their
authority to create an opportunity that would not otherwise have
existed for the third party's crime to occur. Put otherwise, the
defendants must have been at least deliberately indifferent to the
plight of the plaintiff. See Leffall, 28 F.3d at 531 (no due
process claim stated against school district or officials for
5
And while the Middle Bucks decision does not articulate
this point, it seems self-evident that the plaintiffs could have
complained to their teacher or their parents, but their pleadings
did not indicate that they attempted such means of self-defense.
6
holding a high school dance at which a student was shot and
killed).
This court recently noted that no Fifth Circuit case has yet
predicated relief on a state-created danger theory, Id. at 530-31.
Leffall also questioned whether the Supreme Court voiced support
for that theory of constitutional liability. In DeShaney v.
Winnebago County Dept. of Social Serv's., 489 U.S. 189, 109 S. Ct.
998, 103 L. Ed. 2d 249 (1989), the Supreme Court remarked, "while the
state may have been aware of the dangers that Joshua 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." 489 U.S. at
201, 109 S.Ct. at 1006 (emphasis added). Leffall suggested that
the Court was simply placing in context its broader ruling that the
state had no affirmative duty to the young client of its welfare
department. Rather than adopt or reject a state-created danger
theory, Leffall found, in the context of a fatal shooting at a
school-sponsored dance, that the school officials lacked the
requisite culpability for a constitutional violation.
The approach of Leffall applies in this case. Even if the
state-created danger theory is constitutionally sound, the
pleadings in this case fall short of the demanding standard for
constitutional liability. First, they posit the question whether
the environment at Smith High School was "dangerous." If for no
other reason, the presence of numerous trained adults would assure
that a school cannot be as dangerous as the nocturnal condition of
the high-crime neighborhood described in Wood or the prisoner
7
release program gone awry in Cornelius. No inference of
dangerousness arises simply from the presence of student ID badges
or metal detectors; such devices could have been installed
prophylactically, in the absence of any prior trespasses onto
campus or incidents of criminal violence. Moreover, to infer the
existence of a dangerous environment—the condition of § 1983
liability—solely from the presence of measures designed to avert
violence would erect a serious disincentive to their use. The law
cannot so turn against its purposes; the use of security devices
should be encouraged, not discouraged. There would have to
allegations at least of previous criminal conduct at Smith High
School from which a trier of fact could conclude it was tantamount
to a "high-crime area."
Second, school officials must have actually known that Smith
High was dangerous to students such as Andrew Gaston. Actual
knowledge of a serious risk of physical danger to the plaintiff has
been a common feature of the state-created danger cases. From the
pleadings in this case, no legitimate inference can be drawn that
school officials might have been actually aware of a high risk that
an armed non-student invader would enter the campus and fire a
pistol randomly during school hours.
Appellant's claim also fails the third element of the
state-created danger cases. There is no pleading that school
officials placed Gaston in a dangerous environment stripped of
means to defend himself and cut off from sources of aid. There is
no sufficiently culpable affirmative conduct. Andrew went to
8
school. No state actor placed Andrew in a "unique, confrontational
encounter" with a violent criminal. Cornelius, 880 F.2d at 359.
No official in the performance of her duties abandoned him in a
crack house or released a known criminal in front of his locker.
There is no suggestion that the school district or principal
fostered or tolerated anarchy at Smith High—the ID badges and metal
detectors permit the opposite inference. Even if the deployment of
such security measures was haphazard or negligent, it may not be
inferred that the conduct of the defendants rose to the level of
deliberate indifference. As in Leffall, the most that may be said
of defendants' ultimately ineffective attempts to secure the
environment is that they were negligent, but not that they were
deliberately indifferent. See also Graham v. Indep. Sch. Dist. No.
I-89, 22 F.3d 991, 995 (10th Cir.1994); compare Salas v.
Carpenter, 980 F.2d 299 (5th Cir.1992). On the contrary, the facts
here pleaded suggest only that Andrew was the tragic victim of
random criminal conduct rather than of school officials'
deliberate, callous decisions to interpose him in the midst of a
criminally dangerous environment. Appellant's complaint, in short,
does not suffice to plead that Andrew was the victim of
state-created danger.
2. Constitutional "Special Relationship"
Although Gaston's death was not a result of an
unconstitutional state-created danger, this does not necessarily
preclude the broader theory of liability, premised on DeShaney, if
a "special relationship" exists between the plaintiff and the
9
state. In that case, the Supreme Court held that a minor could not
maintain a § 1983 action against Winnebago County and its social
services department or employees for serious injuries inflicted by
his father after a county caseworker returned DeShaney to his
father's custody and allegedly knew or should have known that the
father would be violent. The Court concluded that "a State's
failure to protect an individual against private violence simply
does not constitute a violation of the Due Process Clause."
DeShaney, 489 U.S. at 197, 109 S.Ct. at 1004. The Court rejected
the contention that a "special relationship," carrying affirmative
constitutional obligations toward the child, existed by virtue of
the social welfare services the state provided. Such affirmative
obligations of care and protection arise only when the state "takes
a person into its custody and holds him there against his will."
Id. at 199-200, 109 S.Ct. at 1005-06 (citing Youngberg v. Romeo,
457 U.S. 307, 317, 102 S. Ct. 2452, 2459, 73 L. Ed. 2d 28 (1982)
(institutionalized mentally ill) and Estelle v. Gamble, 429 U.S.
97, 103-04, 97 S. Ct. 285, 290-91, 50 L. Ed. 2d 251 (1976)
(prisoners)). The district court here concluded, as has every
circuit court that has considered the issue, that DeShaney
forecloses a constitutional claim on behalf of Andrew Gaston for
affirmative protection while at school. See, e.g., Maldonado v.
Josey, 975 F.2d 727, 730-33 (10th Cir.1992), cert. denied, --- U.S.
----, 113 S. Ct. 1266, 122 L. Ed. 2d 662 (1993); Dorothy J. v. Little
Rock Sch. Dist. 7 F.3d 729, 732 (8th Cir.1993); D.R. v. Middle
Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1369-72 (3rd
10
Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S. Ct. 1045,
122 L. Ed. 2d 354 (1993); J.O. v. Alton Community Unit Sch. Dist.
11, 909 F.2d 267, 272 (7th Cir.1990).
Our court recently declined to address whether a "special
relationship" imposes affirmative constitutional duties of care on
public schools. Doe v. Taylor ISD, 15 F.3d 443, 451 n. 3 (5th
Cir.1994) (en banc ); Leffall, 28 F.3d at 528-29.6
As in Doe and Leffall, we find it unnecessary to decide the
"special relationship" issue in this case. We agree with the
district court's conclusion on somewhat different grounds than it
expressed. While a persuasive argument can be made for applying a
DeShaney "special relationship" in some measure to public school
students who are forced by compulsory education laws to attend
school and have no choice among public schools7, even under such a
6
In Walton v. Alexander, 20 F.3d 1350 (5th Cir.1994), this
court held that a "special relationship" was created between the
supervisor of a Mississippi custodial school for deaf children
and one of the students. The panel opinion has been vacated by
the grant of rehearing en banc. See Fifth Circuit Internal
Operating Procedure associated with F.R.A.P. 35. Additionally,
for the reasons stated in Leffall, Walton is distinguishable.
7
It is Texas law that, with few exceptions, students are
required to attend school until they reach the age of 17. See
Tex.Educ.Code Ann. § 21.032 (Vernon 1987 & Supp.1993). See also
Tex.Educ.Code Ann. § 21.033 (exemptions from compulsory
attendance requirements). Further, Texas law requires students
usually to attend the public school, often a neighborhood school,
designated by the district. See Tex.Educ.Code Ann. § 21.032(a)
(Vernon Supp.1993). State law places the school in loco parentis
during ordinary school hours and during the conduct of certain
school activities. See, e.g., Mercer v. State, 450 S.W.2d 715(Tex.Civ.App.—Austin 1970, error dism'd as moot).
Notwithstanding similar laws in other states, four courts of
appeals have held that a student is not "in custody" within
DeShaney. These courts reason that custody in DeShaney meant
such an involuntary, full-time physical restraint and
11
superintendence as prevents a person from otherwise independently
providing for his needs and safety. See Dorothy J. v. Little
Rock Sch. Dist., 7 F.3d 729 (8th Cir.1993); Maldonado v. Josey,
975 F.2d 727, 731 (10th Cir.1992); D.R. v. Middle Bucks Area
Vocational Technical Sch., 972 F.2d 1364, 1370-72 (3d Cir.1992);
J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267, 272
(7th Cir.1990). Public school attendance is deemed "voluntary"
because parents are permitted to withdraw their students from the
public schools. Further, parents remain the principal caretakers
of their children even though they are housed at school for at
least six to eight hours daily.
The fact is, however, that the state's custody of
children in public schools is more comprehensive than is its
intervention in family affairs via noncustodial welfare
services. Such services often involve sporadic,
intermittent contact with clients on a schedule that may not
be predictable. Social workers provide valuable services to
their un-institutionalized clients, but they cannot and do
not tend to them continuously nor do they necessarily rely
upon state-managed facilities as the locus of care.
Schools, however, take care of children day after day for
years in public facilities. Schools may be said to control
children's environments to the same or even greater degree
than state-sponsored foster care services, which have been
held, post-DeShaney, to bear affirmative obligations to
their client children. See, e.g., K.H. v. Morgan, supra;
Yvonne L. v. New Mexico Dept. of Human Servs., 959 F.2d 883,
893 (10th Cir.1992).
The argument against holding that public schools have
"custody," at least for some purposes of protecting their
physical well-being, appears to derive less from logic than
from a pragmatic desire to limit their legal liability. As
has been shown, students must attend school and may not
leave without permission. To say that student attendance is
voluntary because parents may elect to home-school their
children or send them to a private school is lamentably, for
most parents, a myth. See D.R. v. Middle Bucks, 972 F.2d at
1380 (Sloviter, J., dissenting). To intimate that parents
retain effective responsibility for their children's
well-being when the school alone makes critical decisions
regarding student safety and discipline is inaccurate. To
suggest that parents somehow are in a better position than
the schools to protect their children from the ravages of
weapons smuggled onto campus during the school day is
cruelly irrational. To hope that students who are unarmed
can protect themselves from the depredation of armed
criminals in their midst is ridiculous. That parents yield
so much of their children's care into the hands of public
12
legal regime the appellant's claim would not succeed. Andrew
Gaston's death is attributable to the fortuity that an armed,
violent non-student trespassed on campus. There can be no
liability of state actors for this random criminal act unless the
fourteenth amendment were to make the schools virtual guarantors of
student safety—a rule never yet adopted even for those in society,
such as prisoners or the mentally ill or handicapped, who are the
beneficiaries of a "special relationship" with the state. See,
e.g., Farmer v. Brennan, --- U.S. ----, 114 S. Ct. 1970, 128 L. Ed. 2d
811 (1994).
Because of our conclusion that appellant stated no § 1983
claim, we need not consider the specific grounds for potential
liability of the principal or Dallas Independent School District or
the question of qualified immunity.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
GOLDBERG, Circuit Judge, dissenting:
The majority in the case before us found that a school
district should not be held responsible for the reasonable safety
school officials may well be argued to place upon the
officials an obligation to protect students at least from
certain kinds of foreseeably dangerous harm during regular
school hours.
The author of this opinion dissented in Doe v. Taylor
ISD, 15 F.3d 443 (5th Cir.1994) (en banc ). In suggesting
that the "special relationship" theory of DeShaney may
logically apply to public schools governed by compulsory
attendance laws, I do not retreat from my reticence to
expand the scope of constitutional claims, yet I feel
compelled to observe the deficiencies of governing circuit
caselaw.
13
of its students. The majority opinion holds that a student cannot
recover from a public school, or school officials, for injuries
sustained during school hours. I respectfully dissent.
The district court dismissed this action for failure to state
a claim according to Federal Rule of Civil Procedure 12(b)(6).
Dismissal is inappropriate unless the reviewing court determines
that the plaintiff could not recover under any set of facts.
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2
L. Ed. 2d 80 (1957); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d
521, 523 (5th Cir.1994); K.H. ex rel. Murphy v. Morgan, 914 F.2d
846, 847 (7th Cir.1990). For purposes of this review, the court
should assume that the facts alleged in the plaintiff's pleadings
are true. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th
Cir.1994).
The limited pleadings in this case sketch a rough image of the
"transformation of our public schools from institutions of learning
into crucibles of disaffection marred by increasing violence from
which anguish and despair are often brought to homes across the
nation." Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991 (10th
Cir.1994). Andrew Gaston, an innocent fifteen-year-old student,
was shot in the head and killed while in the halls of A. Maceo
Smith High School. Drumestic Contreal Brown, a non-student, took
a school bus to get to the school, entered the school building,
created a disturbance, and ultimately fired the shot that killed
Gaston.
While this story would be tragic in any school, the trauma is
14
magnified in this case by the apparent ineptitude and fecklessness
of the school district and school officials in ensuring student
safety. School policy required students to purchase school
identification badges, but there was no one to check them. The
school also had metal detectors on the premises, but they were
packed away in boxes. The majority opinion refuses to acknowledge
that these security measures were aimed at preventing the precise
incident that transpired on October 23, 1991. The purpose of these
measures is clear and self-evident. The ID badges were intended to
control the presence of non-students on campus, not to serve as
useless decoration. The metal detectors were intended to eliminate
the presence of weapons on the school grounds, not to consume space
and collect dust like museum pieces. The target of these detectors
are the guns and knives fueling the violence in our schools.1
Both of these security measures were inadequately employed,
and Brown was able to commit his fatal deed. If the school had not
completely disregarded its security measures, Brown might have been
prevented from roaming the school halls and his gun might have been
detected. Indeed, this lawsuit might never have materialized, and
1
Because this case was dismissed prematurely, the plaintiff
was not permitted to develop additional evidence relating to the
aggregate state of affairs at the school. Inferences of safety
and dangerousness require a fact-finder to examine and weigh
additional evidence relating to the aggregate state of affairs at
the school. Recognizing the nature of the security measures at
A. Maceo Smith High School does not necessarily compel an
inference of dangerousness, as the majority seems to suggest. An
objectively safe school might implement security measures to
maintain and safeguard its security and reputation. The purpose
of a trial is to permit a fact finder to draw inferences based on
evidence adduced through the discovery process.
15
Gaston would have finished his studies at A. Maceo Smith High
School.
The majority and the district court concluded that the
pleadings did not sufficiently allege facts or present a legal
basis for recovery. I respectfully disagree on both counts.
The complaint in this case alleges sufficient facts to survive
a Rule 12(b)(6) attack. In dismissing this case, the district
court relied in part on Streetman v. Jordan, 918 F.2d 555 (5th
Cir.1990). The district court essentially held that the plaintiff
did not allege facts with sufficient specificity to overcome the
heightened pleading requirement for § 1983 claims. See Streetman,
918 F.2d at 557. However, the Supreme Court invalidated the
heightened pleading requirement in Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, --- U.S. ----, 113
S. Ct. 1160, 122 L. Ed. 2d 517 (1993). Leatherman held that
plaintiffs in § 1983 cases need only meet the pleading requirements
established in Federal Rule of Civil Procedure 8(a). Id., --- U.S.
at ----, 113 S.Ct. at 1161. Our system of pleading has evolved
from the ancient system of the forms of action to the modern notice
pleading standard. We should not return to the feudal days of
microscopic analysis of pleadings, but rather embrace the present
and future. The plaintiff's pleadings need only adumbrate the
evidence expected in the prosecution of the case. Thus,
"[t]he issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence
to support the claims. Indeed it may appear on the face of
the pleadings that a recovery is very remote and unlikely but
that is not the test."
16
Taylor v. Ledbetter, 818 F.2d 791, 794 n. 4 (11th Cir.1987), cert.
denied, 489 U.S. 1065, 109 S. Ct. 1337, 103 L. Ed. 2d 808 (1989)
(citing Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d
90 (1974); Miller v. Stanmore, 636 F.2d 986 (5th Cir.1981);
Johnson v. Wells, 566 F.2d 1016 (5th Cir.1978)). This case should
not be prematurely dismissed and the plaintiff should be permitted
to develop evidence to support his claims. Other courts have
upheld analogous claims. See e.g., Waechter v. School Dist. No.
14-030, 773 F. Supp. 1005, 1010 (W.D.Mich.1991); Lichtler v. County
of Orange, 813 F. Supp. 1054 (S.D.N.Y.1993); Pagano v. Massapequa
Public Schools, 714 F. Supp. 641, 643 (E.D.N.Y.1989); cf. Taylor v.
Ledbetter, 818 F.2d 791, 793 (11th Cir.1987).
The majority posits and refutes two potential theories for
recovery in this case. I find the majority's application of the
facts to each theory problematic.
I.
The majority recognizes that under the due process clause of
the Fourteenth Amendment, a state actor is held accountable for
foreseeable injuries when it creates or permits a dangerous
situation. See Salas v. Carpenter, 980 F.2d 299, 309 (5th
Cir.1992). This principle has been labeled the state-created
danger doctrine. Although the plaintiff's pleadings set forth the
requisite elements of a state-created danger claim, the majority
not only refuses to find them but also denies the plaintiff the
opportunity to demonstrate the state-created danger at A. Maceo
Smith High School on October 23, 1991.
17
The majority distills three elements that constitute the
state-created danger doctrine from prior cases. The first element
is whether the environment was dangerous. The second is whether
the state actors knew the environment was dangerous. The final
element is whether the state actors created an opportunity that
would not otherwise have existed for the injury to transpire. The
requisite allegations in the pleadings will be examined below.
The state forced Gaston to attend A. Maceo Smith High School
through its compulsory education laws. See Tex.Educ.Code Ann. §
21.032(a) (Vernon 1987 & Supp.1993). The majority points out that
to claim Gaston attended school voluntarily is to deny reality.2
See Majority Op. at 780-81, n. 7; D.R. by L.R. v. Middle Bucks
Area Vo. Tech. School, 972 F.2d 1364, 1380 (3rd Cir.1992)
(Sloviter, C.J., dissenting), cert. denied, --- U.S. ----, 113
S. Ct. 1045, 122 L. Ed. 2d 354 (1993) ("The compulsory nature of
public school attendance is not lessened by the fact that a few
fortunate students have the option to attend private school or be
educated at home.").3 A. Maceo Smith High School was arguably
2
Thus, this court's decision in Leffall is clearly
distinguishable from the instant case. Leffall v. Dallas
Independent Sch. Dist., 28 F.3d 521 (5th Cir.1994). We are not
attending an after-school dance in this case, where students must
pay for the privilege to attend, as was the case in Leffall. In
this case, we are attending school, studying our books, and
attendance is mandatory.
3
The Supreme Court has gone further, stating that
"[l]aw reaches past formalism. And to say a teenage
student has a real choice not to attend her high school
graduation is formalistic in the extreme."
Lee v. Weisman, --- U.S. ----, ----, 112 S. Ct. 2649, 2658,
18
dangerous on October 23, 1991. While schools may not be per se
dangerous, the plaintiff should be given an opportunity to prove
that A. Maceo Smith High School was dangerous. The very limited
discovery in this case reveals past instances of school violence.
Additional evidence and testimony might have further indicated
dangerousness.4 The fact-finder, after a trial, should have
considered the evidence and determined whether A. Maceo Smith High
School was dangerous or safe on October 23, 1991.
Without factual development, we should not pass with finality
on the knowledge and level of culpability of the school district
and officials in this case. The majority's interpretation of
"actual knowledge" seems too cramped in view of § 1983
jurisprudence. The Supreme Court and this court have held that
liability may attach to the state through inaction or nonfeasance
as well as through action and malfeasance. Canton v. Harris, 489
U.S. 378, 390, 109 S. Ct. 1197, 1205, 103 L. Ed. 2d 412 (1989)
(holding that a failure to promulgate a policy may demonstrate
deliberate indifference and be grounds for liability under § 1983);
120 L. Ed. 2d 467 (1992).
4
The mere presence of trained adults on school grounds does
not negate the potential dangerousness of the school. If trained
individuals were deliberately indifferent to the plight of the
students, the school might be as dangerous or more dangerous than
if they were not present. The parents may have relied upon the
presence of trained adults, and therefore not pressed for
additional security measures. "Failing to act may, under certain
circumstances, be more detrimental than acting." Taylor by and
through Walker v. Ledbetter, 818 F.2d 791, 800 (11th Cir.1987);
see also P.L.C. v. Housing Authority, 588 F. Supp. 961(W.D.Pa.1984) (holding that a duty arose through detrimental
reliance).
19
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir.1994),
cert. denied, --- U.S. ----, 113 S. Ct. 1066, 122 L. Ed. 2d 371 (1993)
("We ... hold that a school official's liability arises ... when
the student shows that the official, by action or inaction,
demonstrates a deliberate indifference to his or her constitutional
rights.") (emphasis supplied).5 We stated in Gonzalez v. Ysleta
Indep. Sch. Dist. that
"[t]he "deliberate indifferent' requirement permits courts to
separate omissions that "amount to an intentional choice' from
those that are merely "unintentionally negligent
oversight[s].' "
996 F.2d 745, 756 (5th Cir.1993) (emphasis supplied) (quoting Rhyne
v. Henderson County, 973 F.2d 386, 392 (5th Cir.1992)); see also
Salas v. Carpenter, 980 F.2d 299, 307 (5th Cir.1992). The
deliberate indifference standard is a high legal threshold,6 used
to distinguish simple negligence from the type of willful blindness
that is so extreme that it qualifies as active conduct for
5
See generally, Actionable Inaction: Section 1983 Liability
for Failure to Act, 53 Univ.Chi.L.Rev. 1048 (1986).
6
The deliberate indifference standard is difficult to meet
for several reasons. One reason is to prevent the Fourteenth
Amendment from becoming a "font of tort law." Daniels v.
Williams, 474 U.S. 327, 332, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662(1986) (citations omitted). Another reason is to protect state
actors from excessive financial exposure. See Canton v. Harris,
489 U.S. 378, 391-92, 109 S. Ct. 1197, 1206, 103 L. Ed. 2d 412(1989). The latter seems to be one of the majority's primary
concerns. See Majority Opinion at 780-81 & n. 7. The proper way
to address this concern is through the use of a high culpability
requirement and requiring that the deliberate indifference "be
closely related to the ultimate injury." Canton, 489 U.S. at
391, 109 S. Ct. 1206. Insulating deliberately indifferent school
districts and officials by preventing student suits goes to far
to protect the public fisc at the expense of defenseless school
children.
20
determining culpability. Id. See also Temkin v. Frederick County
Comm'rs, 945 F.2d 716, 722-23 (4th Cir.1991), cert. denied, ---
U.S. ----, 112 S. Ct. 1172, 117 L. Ed. 2d 417 (1992) (citing cases of
deliberate indifference); Shaw by Strain v. Strackhouse, 920 F.2d
1135, 1145 (3d Cir.1990); White v. Rochford, 592 F.2d 381, 385
(7th Cir.1979) (discussing liability based on gross negligence and
reckless disregard for the safety of others). The language found
in these opinions demonstrates that the defendants here may be
liable under § 1983 for inaction and failure to obtain knowledge
about the school's security. The plaintiff effectively alleged
that the school officials were deliberately indifferent to the
danger at the high school, in that they knew or should have known
about the environment at A. Maceo Smith High School. At this stage
of the litigation, it is understandable that the plaintiff does not
have an abundance of evidence of the nebulous mental state of the
officials. Cf. Thornbrough v. Columbus and Greenville R. Co., 760
F.2d 633, 640 (5th Cir.1985) (discussing the difficult task of
proving defendants' mindsets). However, that does not justify
denying the plaintiff his day in court to attempt to show what may
be difficult but still possible to prove. Furthermore, there is no
evidence in this record to support the majority's assertion that
the risk of a non-student invader was unforeseeable by the
defendants. The majority claims it is inappropriate to draw an
inference of knowledge from the security measures in this case,
because such an inference would discourage schools from taking
steps to ensure student safety in the future. However, it is just
21
as inappropriate to draw an inference of safety from these security
measures. Furthermore, the majority's position effectively rewards
official ignorance and irresponsibility. The courts should
encourage student safety, not half-hearted security policies. In
addition, even without an inference of dangerousness or knowledge
from these measures,7 there is a past history of firearms and
violence at A. Maceo Smith High School which, in conjunction with
other evidence that might have come to light through further
discovery, could have proved whether the school was the dangerous
or safe.8 Based on this record, we cannot know whether A. Maceo
Smith High School was a paragon of security or a "snake pit."9
Finally, the majority requires an extreme showing of
affirmative action from school officials, as it concludes that the
defendants cannot be liable because they "did not release a known
criminal in front of [Gaston's] locker." Majority Op. at 779.
This position depreciates § 1983.10 If the majority's logic were
7
Such an inference does not require a great leap of faith.
The ID badge policy seems to be aimed at distinguishing students
who belong on campus from strangers, and the metal detectors are
a step in eliminating the presence of weapons from school
grounds. Taken together, these two measures seem to indicate
that the presence of armed non-students was, or should have been,
foreseeable to the school officials.
8
See Answers to Interrogatories. The only discovery allowed
in this case was in the form of one set of interrogatories.
9
Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982).
10
Some courts have implied that the action/inaction
distinction is crucial in determining whether the students may
recover for injuries from the school districts and officials.
See, e.g., D.R. by L.R. v. Middle Bucks Area Vo. Tech. School,
972 F.2d 1364, 1373-75 (3d Cir.1992); J.O. v. Alton Community
Unit School Dist. 11, 909 F.2d 267, 272 (7th Cir.1990). However,
22
followed, then a school that was deliberately indifferent to the
risk of fire would be immune to suits for fire related injuries as
long as the principal did not strike the match. This simply cannot
be true. The state need not be the last link in the causal chain
to be liable for injuries. In Estelle, the Court found a duty for
the state to provide medical care for injuries that were not caused
by a state actor, but rather through the performance of a work
assignment. Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50
L. Ed. 2d 251 (1976). In Youngberg, the Court acknowledged that the
institutionalized patient has a right to medical care even though
the state did not cause his injuries. Youngberg v. Romeo, 457 U.S.
307, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982); see also Lichtler v.
County of Orange, 813 F. Supp. 1054, 1056 (S.D.N.Y.1993) (stating
that a county could liable for student injuries resulting from a
tornado which struck during school hours). If the state places an
other cases have criticized a curtailed and limited view based on
an act/omission distinction because it leads to contrived and
artificial results.
"We do not want to pretend that the line between action
and inaction, between inflicting and failing to prevent
the infliction of harm, is clearer than it is. If 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). See
also White v. Rochford, 592 F.2d 381 (7th Cir.1979) ("[I]t
seems incongruous to suggest that liability [under § 1983]
should turn on the tenuous metaphysical construct which
differentiates sins of omission and commission."). Indeed,
the Supreme Court stated deliberate indifference may result
from acts or omissions. Estelle, 429 U.S. at 104-05, 97
S.Ct. at 291.
23
individual in a precarious situation, it cannot avoid liability if
the peril materializes in the form of injury. Foreseeability is a
question of fact and is not to be answered by speculative
conclusions.
II.
The majority presents and rejects the notion that a public
school owes its students any duty to maintain a reasonably safe
environment in which to conduct classes. The majority bases this
conclusion primarily on DeShaney v. Winnebago County Dep't Soc.
Serv's., 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989) and
some circuit cases interpreting DeShaney. However, DeShaney does
not foreclose the possibility of some obligation to protect
students from violence in public schools. The DeShaney Court
stated that when the state takes custody of an individual, an
affirmative duty arises under § 1983 to ensure the individual's
safety and well-being. 489 U.S. at 199-200, 109 S.Ct. at 1005.
Thus, the court's inquiry is two-fold. The court must determine
whether Gaston was in state custody, and if so, whether the state
breached its duty to safeguard him.
The majority found that Gaston was not in state custody.
Determining whether an individual is in state custody is typically
accomplished by examining whether the state has isolated the
individual from sources of private aid, or when,
"the State by the affirmative exercise of its power so
restrains an individual's liberty that it renders him unable
to care for himself, and at the same time fails to provide for
basic human needs—e.g., food, clothing, shelter, medical care,
and reasonable safety...."
24
DeShaney, 489 U.S. at 200, 109 S.Ct. at 1005 (citations omitted)
(emphasis supplied). A "special relationship" between the state
and the individual arises when the state takes the person in
custody.11 In this case, the majority finds that Gaston was not in
11
The term "special relationship" has become talismanic and
complicated. Archie v. Racine, 847 F.2d 1211, 1223 (7th
Cir.1988). This court has expressly avoided determining whether
a school has a special relationship with its students. See
Leffall, 28 F.3d at 528-29; Doe v. Taylor Independent Sch.
Dist., 15 F.3d 443, 451 n. 3. Some courts have noted difficulty
with the concept.
"The contours of what constitutes a "special
relationship' between a municipality, acting through
its officials, and its citizens are hazy and
indistinct."
Ellsworth v. Racine, 774 F.2d 182, 185 (7th Cir.1985).
However, there are several examples of special relationships
from prior cases. See, e.g., Estelle, 429 U.S. 97, 103-04,
97 S. Ct. 285, 290-91 (state owes duty to prison inmates);
Youngberg, 457 U.S. 307, 315-16, 102 S. Ct. 2452, 2458 (state
owes duty to mental patients). Indeed, at least two
circuits have intimated that a special relationship is not
required to find custody or a duty to protect individuals.
"Nothing in DeShaney suggests that state officials may
escape liability arising from their policies maintained
in deliberate indifference to actions taken by their
subordinates.... Liability of municipal policymakers
for policies or customs chosen or recklessly maintained
is not dependent upon the existence of a "special
relationship' between the municipal officials and the
individuals harmed."
Stoneking v. Bradford Area School Dist., 882 F.2d 720, 725
(3d Cir.1989) (citing Canton v. Harris, 489 U.S. 378, 387,
109 S. Ct. 1197, 1205, 103 L. Ed. 2d 412 (1989) and Bordanaro
v. McLeod, 871 F.2d 1151 (1st Cir.1989), cert. denied, 493
U.S. 820, 110 S. Ct. 75, 107 L. Ed. 2d 42 (1989)); see also
Jensen v. Conrad, 747 F.2d 185, 194 (4th Cir.1984), as
discussed in Swader v. Virginia, 743 F. Supp. 434, 439
(E.D.Va.1990) (stating Jensen survives DeShaney) ("a right
to affirmative protection need not be limited by a
determination that there was a "custodial relationship.'
The Fox [v. Custis, 712 F.2d 84 (4th Cir.1983) ] court ruled
that a right to protection could arise from a custodial or
25
custody because he could go home at the end of the day and he was
not locked in a cell. However, "the concept of "custody' is not so
rigid as to be defined only in terms of a prison or mental
hospital." Swader v. Virginia, 743 F. Supp. 434, 439
(E.D.Va.1990).12 Gaston's parents may have been responsible for his
food, clothing, shelter, and medical care, but both Gaston and his
parents relied on the school to ensure his safety so that he might
other relationship.") (emphasis original).
12
There are many examples of special relationships and
custody in cases applying § 1983. See e.g., Stoneking v.
Bradford Area School Dist., 882 F.2d 720, 723-34 (3d Cir.1989);
Milonas v. Williams, 691 F.2d 931, 942 (10th Cir.1982), cert.
denied, 460 U.S. 1069, 103 S. Ct. 1524, 75 L. Ed. 2d 947 (1983)
(finding that juveniles in boarding school in state custody).
Courts have found a duty when the state takes a child from the
natural parents and places the child under state supervision in
order to secure an adoption. Griffith v. Johnston, 899 F.2d
1427, 1439 (5th Cir.1990) (a "special relationship [arose] when
[the state] removed [children] from their natural homes and
placed them under state supervision"); K.H. ex rel. Murphy v.
Morgan, 914 F.2d 846, 849 (7th Cir.1990); Taylor v. Ledbetter,
818 F.2d 791, 795 (11th Cir.1987) (en banc). A duty arises to
protect prison inmates from other inmates. DeMallory v. Cullen,
855 F.2d 442, 445 (7th Cir.1988). A special relationship was
found between the state and a confidential informant's wife. G-
69 v. Degnan, 745 F. Supp. 254, 265 (D.N.J.1990). See also Fox v.
Custis, 712 F.2d 84, 88 (4th Cir.1983) ("[a constitutional right
to protection by the state] may arise out of special custodial or
other relationships created or assumed by the state"); Bowers v.
DeVito, 686 F.2d 616, 618 (7th Cir.1982); Simmons v.
Philadelphia, 947 F.2d 1042, 1067 (3rd Cir.1991) (state owed duty
of safety to pre-trial detainee due to custody); Horton v.
Flenory, 889 F.2d 454, 458 (3d Cir.1989) (state owed duty to
suspect in private club based on functional custody by police
officer); Lichtler v. County of Orange, 813 F. Supp. 1054, 1056
(S.D.N.Y.1993) ("Since power implies responsibility, where
governmental agencies or entities utilize sovereign compulsion to
exercise coercive powers, a correlative duty exists of due care
toward those subjected to such compulsion.").
26
return home.13 Thus, this case is analogous to Griffith v.
Johnston, where this court found that the state owed a duty to
children removed from their homes and placed under state
supervision. 899 F.2d 1427, 1439 (5th Cir.1990).14 The parents
clearly entrusted their children's safety to the school district.
Indeed, state law places a school in loco parentis. See Majority
Op. at 780-81 n. 7. Schools often use their role as a
justification for their actions affecting a student's rights. See
13
Maldonado v. Josey, 975 F.2d 727, 735 (10th Cir.1992) ("I
cannot fathom who, other than a teacher or other school staff
member, is capable of ensuring the "reasonable safety' of
school-children during the school day and class periods.")
(Seymour, concurring).
14
Other circuits have followed this approach in the foster
care context.
"Here, in contrast, the state removed a child from the
custody of her parents; and having done so, it could
no more place her in a position of danger, deliberately
and without justification, without thereby violating
her rights under the due process clause of the
Fourteenth Amendment than it could deliberately and
without justification place a criminal defendant in
jail or prison in which his health or safety would be
endangered, without violating his rights either under
the cruel and unusual punishments clause of the Eighth
Amendment (held applicable to the states through the
Fourteenth Amendment) if he was a convicted
prisoner.... In either case the state would be a doer
of harm rather than merely an inept rescuer, just as
the Roman state was a doer of harm when it threw
Christians to lions."
K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 849 (7th
Cir.1990) (citations omitted). See also Yvonne L. v. New
Mexico Dep't of Human Serv's., 959 F.2d 883 (10th Cir.1992)
(holding that children in the state's custody are owed an
affirmative duty of protection); Doe v. New York City
Department of Soc. Serv's., 649 F.2d 134 (2d Cir.1981),
cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171(1983).
27
New Jersey v. T.L.O., 469 U.S. 325, 336-41, 105 S. Ct. 733, 739-42,
83 L. Ed. 2d 720 (1985) (recognizing a school's "need to maintain an
environment in which learning can take place"); Bethel Sch. Dist.
No. 403 v. Fraser, 478 U.S. 675, 684, 106 S. Ct. 3159, 3164, 92
L. Ed. 2d 549 (1986). Under the rule pronounced by the majority
today, parents who want to attempt to protect their children from
any harm will have to take turns standing guard at the school
building and playground.
At this stage in the lawsuit, it is premature to suggest
whether the alleged failures on the part of the school district and
school officials should be characterized as negligent, grossly
negligent, callously indifferent, or any other legal label imposing
liability. Let us return to our role of reviewing the law, and
allow the fact-finder to determine the facts. Pleading strictures
should not be used to prevent cases where the pleadings do not
provide extremely detailed factualistic assertions. Let us take
steps to ensure that our schools do not become shooting galleries
or places where criminals are free to roam and terrorize the
student body. Our schools should be places of learning, and
personal safety is a vital component of a learning environment.
28