Salas v. Carpenter , 980 F.2d 299 ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-1807
DORA SALAS, Individually and
as Representative of the Estate
of obo JUANITA HERMOSILLO, et al.,
Plaintiffs-Appellees,
versus
DON CARPENTER, Individually and
in his capacity as Sheriff of
Tarrant County, Texas, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
( December 16, 1992 )
Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and HARMON,*
District Judge.
HIGGINBOTHAM, Circuit Judge:
In this civil rights suit a former sheriff of Tarrant County,
Texas appeals denial of dismissal or summary judgment based upon a
claim of qualified immunity. Sheriff Don Carpenter commanded
police efforts to free a hostage. The effort failed and Juanita
Hermosillo, the hostage, was killed by her abductor. A public
official enjoys a qualified "immunity from suit," not just immunity
from liability, Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct.
*
District Judge of the Southern District of Texas, sitting
by designation.
2806, 2815 (1985) (emphasis in original). We find that no claim
for deprivation of constitutional rights has been stated and in any
event there is immunity. We reverse.
I
Juanita Hermosillo was a clerk in Tarrant County Justice Court
No. 1 from 1981 until her death. In 1982, Hermosillo began dating
Manuel Cabano, who worked for the Tarrant County Sheriff's
Department in the early 1980's. They married in 1988, but their
relationship was at best strained and by 1989 they lived
separately. On Monday, July 24, 1989, Hermosillo complained to the
Tarrant County District Attorney's office that Cabano was sexually
molesting her two daughters from a previous marriage. Hermosillo
hid from Cabano for the rest of the week, staying with a friend and
not going to work. On July 31, Justice of the Peace Robert Ashmore
told Hermosillo to return to work the next day. Cabano had not
been arrested on the sexual assault complaint.
Around 3:00 p.m. on Tuesday, August 1, 1989, Cabano entered
Judge Ashmore's offices at the Tarrant County courthouse with two
guns. Cabano took Hermosillo and Judge Ashmore hostage, but soon
released the judge. Others fled the office when Cabano entered and
called the Tarrant County Sheriff's Department and the Fort Worth
Police Department. Both agencies responded.
The Fort Worth Police Department dispatched its SWAT and
hostage negotiation teams to the scene. They included negotiators
with several years of training and experience. They began to set
up a command post and communications equipment, in preparation for
2
negotiating with Cabano. They were equipped to monitor or cut off
Cabano's outside telephone calls and to record conversations
between Cabano and negotiators. The SWAT team positioned snipers
with a view of Judge Ashmore's offices. Fort Worth Chief of Police
Thomas Windham was at the scene.
Before the Fort Worth police teams finished deploying, Tarrant
County Sheriff Don Carpenter demanded that the police officers
leave, claiming that courthouse security was within the exclusive
jurisdiction of the sheriff's department. In a heated discussion,
Carpenter refused Chief Windham's offer of police assistance.
Carpenter asserted that he did not need assistance, and ordered the
police officers to leave the courthouse, which they did. After
Cabano demanded that snipers leave the nearby rooftop, Carpenter
insisted upon their removal and Chief Windham complied.
The sheriff's department did not have a SWAT team in 1989. It
also lacked a hostage negotiation policy. Five deputies attended
one week of hostage negotiation training in 1988 and 1989, as a
sixth deputy had in 1982. None had any actual experience, and only
three of those trained were present during this crisis. The
sheriff's department had no equipment to control communications in
and out of Judge Ashmore's office, as the police department did.
A telephone company employee assigned to the courthouse left the
scene before successfully cutting off Cabano's contact with the
outside world.
Carpenter and several of his deputies knew Cabano from his
prior employment in the sheriff's department. Carpenter appointed
3
Lt. Smith, the officer with the most recent negotiation training,
as the chief negotiator. During the afternoon several civilians
untrained in hostage negotiations spoke to Cabano. Before Lt.
Smith arrived, two investigators from the D.A.'s office spoke with
Cabano by telephone. During this conversation Cabano was upset and
excited, speaking of the sexual abuse accusations against him. At
one point, Carpenter spoke briefly to Cabano, who hung up on him.
In the late afternoon, Cabano demanded to speak with his attorney,
Alex Gonzalez. At Carpenter's order, Gonzalez was summoned to the
courthouse and negotiated with Cabano. Meanwhile, Dr. James
Greenstone, a leading hostage negotiation authority and instructor
in North Texas, offered his services to Carpenter, but his offer
was declined.
Telephone negotiations continued throughout the afternoon and
early evening. The negotiators were located in an office of the
courthouse which became crowded with non-essential persons. Cabano
asked to speak to a reporter, and one was brought into the
courthouse, although Cabano was not given an opportunity to talk to
him. Two soft drinks were delivered to Cabano, but he refused to
make any good faith gesture such as surrendering one of his
weapons. Carpenter rejected Investigator Byrnes' suggestion that
the courthouse air conditioning be shut down. At no time did
Carpenter or his negotiators contact Hermosillo's family or the
D.A.'s office to learn about the charges against Cabano.
By evening, Cabano became unresponsive, and began to leave the
telephone in Judge Ashmore's office off the cradle for long
4
intervals. After 9:00 p.m., Hermosillo expressed a desire to talk
with her children on the telephone. Members of the sheriff's
department considered these as dangerous signs. They did not have
SWAT weapons and training for executing a dynamic entry into Judge
Ashmore's chambers and did not do so. Around 9:40 p.m., Cabano
shot and killed Hermosillo, then himself.
In the days following this tragedy, Carpenter responded to
criticism by saying that he was proud of his department. He stated
that a SWAT team was neither necessary nor useful under these
circumstances. He also stated, regarding Cabano, "I wouldn't have
believed he would have done it, but he did it."
Plaintiffs filed their section 1983 and tort claims in state
court, and the defendants removed to federal district court. The
complaint states that many of Carpenter's actions and decisions
were wrongful, focusing on two in particular: the removal of Fort
Worth police from the scene and the conduct of the negotiations.
Plaintiffs claim that Carpenter deprived Hermosillo of her life by
preventing the Fort Worth police SWAT and hostage negotiation teams
from effectuating her release. Plaintiffs also claim that
Carpenter caused Hermosillo's death by using incompetent hostage
negotiators, including untrained civilians, rather than Fort Worth
police negotiators or Dr. James Greenstone.1 Finally, plaintiffs
1
Plaintiffs point to several errors made during the
negotiations, including agreeing to demands for the snipers'
removal and the presence of a reporter without obtaining a
corresponding concession from Cabano, allowing persons acquainted
with Cabano to speak to him, and allowing the command post to
become overcrowded.
5
argue that the sheriff failed to provide adequate training and
equipment for a hostage situation, including SWAT weapons and
communications equipment.
Plaintiffs contend that Carpenter acted negligently, with
deliberate indifference and with conscious disregard for
Hermosillo. They support these allegations with Dr. Greenstone's
affidavit. Plaintiffs also argue that Carpenter's statements to
the press following August 1, 1989 demonstrate these mental states.
Plaintiffs claim that Carpenter's actions were motivated by his
ego, his jealousy of the courthouse, and professional envy of the
police department.
Carpenter's affidavit in support of his motion stated that at
all relevant times Carpenter acted in his official capacity as
sheriff in the performance of policing the courthouse. He stated
that his "objective and intent on this occasion was to secure the
release of the hostage unharmed, to apprehend the gunman, and to
protect the safety of the general public and the peace officers
involved." Plaintiffs moved to strike Carpenter's affidavit, on
the basis that it improperly asserted inadmissible "expert"
opinions without foundation, ultimate facts, and conclusions of
law.2 The district court granted this motion. Thereafter, the
2
Plaintiffs objected to (1) the statement regarding
Carpenter's capacity, as an ultimate fact; (2) the description of
the situation as a police emergency, as an expert opinion; (3)
the statement regarding making policy decisions, as a conclusory
fact and/or conclusion of law; (4) the statement regarding his
intent and objective, as an ultimate fact; and (5) the denial of
conscious indifference and deliberate disregard, as ultimate
facts.
6
district court denied defendant's summary judgment motion on the
basis that it was not supported by affidavit as required by rule
56. Fed. R. Civ. P. 56. The district court also denied
Carpenter's motion to dismiss, on the ground that it was "not well
taken."
II
Denial of dismissal or summary judgment for want of qualified
immunity fits within the small class of interlocutory decisions
qualifying for appellate review. Mitchell v. Forsyth, 472 U.S.
511, 527, 105 S. Ct. 2806, 2816 (1985). We may review the denial
of a claim of qualified immunity "to the extent it turns on an
issue of law." Id. at 530, 105 S. Ct. at 2817. Plaintiffs argue
that we lack jurisdiction because there are disputed factual issues
material to immunity. See Feagley v. Waddill, 868 F.2d 1437, 1441-
42 (5th Cir. 1989). We conclude that no genuine issue of fact
relevant to resolving the immunity question remains.
Until recently, uncertainty in this Circuit clouded whether or
not we had jurisdiction in these interlocutory appeals to decide
whether plaintiffs had stated a constitutional claim. Compare
Gagne v. City of Galveston, 805 F.2d 558, 559 n.1 (5th Cir. 1986)
(holding that denial of Rule 12(b)(6) motion asserting qualified
immunity is appealable), cert. denied, 483 U.S. 1021 (1987), with
Chrissy F. by Medley v. Mississippi Dep't of Public Welfare, 925
F.2d 844, 849 (5th Cir. 1991) (holding that denial of motion to
dismiss for failure to state claim while asserting qualified
immunity not appealable). The Supreme Court in Siegert v. Gilley,
7
111 S. Ct. 1789 (1991), has now made it clear that our first
inquiry in an appeal asserting qualified immunity is whether a
valid constitutional claim has been made. See Duckett v. City of
Cedar Park, 950 F.2d 272, 278 (5th Cir. 1992); see also White v.
Taylor, 959 F.2d 539, 545 n.4 (5th Cir. 1992); Quives v. Campbell,
934 F.2d 668, 669-70 (5th Cir. 1991). Our review is plenary
accepting the facts in the light most favorable to the nonmoving
party. Doe v. Taylor Ind. School Dist., 975 F.2d 137, 139 n.2 (5th
Cir. 1992).3
III
Plenary review requires that we first settle the record by
resolving issues of evidence. The district court struck
Carpenter's affidavit, the only one submitted in support of his
motion for summary judgment, and denied his motion for summary
judgment on the ground that it was "not supported by affidavit as
required by Rule 56." This basis for denial was improper. Rule 56
does not require that a moving party support its motion with
affidavits. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.
Ct. 2548, 2553 (1986). In cases where the nonmoving party bears
the burden of proof on a dispositive issue, a summary judgment
motion may rely solely on the pleadings. Id. at 324, 106 S. Ct. at
2553. The movant can support its motion by pointing out the
absence of evidence supporting the nonmovant's case. See Saunders
3
Despite our disposition of this appeal, Tarrant County,
Texas, remains a defendant in the district court. Our recitation
of facts accepts plaintiffs' evidence and reasonable inferences
from it as true, and should not be construed as expressing any
opinion regarding the weight or credibility of the evidence.
8
v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). Here,
plaintiffs bear the burden of negating Carpenter's qualified
immunity defense. Chrissy F., 925 F.2d at 851; see also infra
section IV.
The district court also erred in striking Carpenter's entire
affidavit. The court should disregard only the inadmissible
portions of a challenged affidavit. Williamson v. United States
Dep't of Agriculture, 815 F.2d 368, 383 (5th Cir. 1987); Lee v.
National Life Assurance Co. of Canada, 632 F.2d 524, 529 (5th Cir.
1980). At least part of Carpenter's affidavit was admissible.
Plaintiffs' claims make Carpenter's state of mind on August 1,
1989, material. His testimony of his intent that day may be
admitted. Plaintiffs' contention that it goes to an ultimate fact
misses the mark. This is not opinion testimony, but factual
evidence of the sheriff's mental state. The Federal Rules of
Evidence abandoned the ancient rule against testimony regarding
ultimate facts, so long as such testimony is helpful to the jury.
See Fed. R. Evid. 704 advisory committee's note (1972).
On the other hand, we find that a portion of the summary
judgment evidence upon which plaintiffs rely is not admissible.
Dr. James Greenstone testified by affidavit regarding the hostage
crisis and pointed out many errors that he believes Carpenter
committed. Dr. Greenstone stated what policies and procedures
should, in his expert opinion, have been followed in negotiating
with Cabano. The affidavit then asserts that Carpenter acted with
deliberate indifference and conscious disregard, as those mental
9
states are conventionally defined. Plaintiff cannot rely on these
last assertions to create a genuine issue regarding Carpenter's
mental state.
Affidavits submitted for summary judgment determinations must
set forth facts "as would be admissible in evidence." Fed. R. Civ.
P. 56(e). "Evidence inadmissible at trial cannot be used to avoid
summary judgment." Broadway v. City of Montgomery, 530 F.2d 657,
661 (5th Cir. 1976). As plaintiffs argued regarding Carpenter's
affidavit, conclusory assertions cannot be used in an affidavit on
summary judgment. See id. at 660. Expert witnesses may perform
two roles: explaining evidence to a jury, and acting as the source
of evidence for a jury. In re Air Crash Disaster at New Orleans,
795 F.2d 1230, 1233 (5th Cir. 1986). When the expert speaks in the
latter role, we give less deference to a district court's
admissibility decision. Id. We conclude that Dr. Greenstone's
conclusory assertions regarding Carpenter's state of mind are not
admissible.
As an expert in the field of hostage negotiation, Dr.
Greenstone can properly offer evidence on effective methods and
explain to a jury faults in the methods employed by a police force.
On the other hand, Dr. Greenstone is not in a better position than
a juror to conclude whether Carpenter's actions demonstrated such
a lack of concern for Hermosillo's safety as to constitute
deliberate indifference or conscious disregard. Opening the door
to ultimate issues did not "open the door to all opinions." Owen
v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983). The focus
10
in deciding whether an expert's opinion should be admitted is Rule
702's standard: whether the testimony will "assist the trier of
fact to understand the evidence or to determine a fact in issue."
Fed. R. Evid. 702; 3 Jack B. Weinstein and Margaret A. Berger,
Weinstein's Evidence ¶ 702[01] (1992).4 "Stated more directly, the
trial judge ought to insist that a proffered expert bring to the
jury more than the lawyers can offer in argument." Air Crash at
New Orleans, 795 F.2d at 1233. With these considerations in mind,
we conclude that Dr. Greenstone's conclusory assertions regarding
Carpenter's state of mind would not be helpful to a jury, were not
admissible, and cannot be relied upon by plaintiffs to prevent
summary judgment. See Taylor v. Watters, 655 F. Supp. 801, 805
(E.D. Mich. 1987)(holding hostage situation expert's testimony that
officials' conduct was reckless and conscience-shocking
inadmissible).
IV
As sheriff, Carpenter is entitled to qualified immunity from
suit under section 1983 unless it is shown by specific allegations
that he violated clearly established constitutional law. Anderson
v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987);
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738
(1982). The qualified immunity determination requires a two step
4
"Under Rules 701 and 702, opinions must be helpful to the
trier of fact, and Rule 403 provides for exclusion of evidence
which wastes time. These provisions afford ample assurances
against the admission of opinions which would merely tell the
jury what result to reach . . .." Fed. R. Evid. 704 advisory
committee's note (1972).
11
analysis. First, in reviewing a denial of qualified immunity, we
determine whether plaintiffs have stated a violation of rights
secured by the Constitution. Duckett v. City of Cedar Park, 950
F.2d 272, 278 (5th Cir. 1992). Since qualified immunity turns on
whether a defendant violated a clearly established right, a
"necessary concomitant" to that decision is determining "whether
the plaintiff has asserted a violation of a constitutional right at
all." Siegert v. Gilley, 111 S. Ct. 1789, 1793 (1991). If
plaintiffs cross this threshold, we next examine the objective
reasonableness of the defendant official's conduct. Pfannsteil v.
City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990); see also
Creighton, 483 U.S. at 641, 107 S. Ct. at 3040.
In this circuit, the qualified immunity defense involves a
shifting burden of proof. Although we sometimes short-handedly
refer to only one party's burden, the law is that both bear a
burden. The defendant official must initially plead his good faith
and establish that he was acting within the scope of his
discretionary authority. Saldana v. Garza, 684 F.2d 1159, 1163
(5th Cir. 1982), cert. denied, 460 U.S. 1012 (1983). Once the
defendant has done so, the burden shifts to the plaintiff to rebut
this defense by establishing that the official's allegedly wrongful
conduct violated clearly established law. Id.; Whatley v. Philo,
817 F.2d 19, 20 (5th Cir. 1987); United States v. Burzynski Cancer
Research Inst., 819 F.2d 1301, 1310 (5th Cir. 1987), cert. denied,
484 U.S. 1065 (1988). The Fifth Circuit does not require that an
official demonstrate that he did not violate clearly established
12
federal rights; our precedent places that burden upon plaintiffs.
In this case, Carpenter has claimed qualified immunity and
established that he acted within his authority as sheriff. If
plaintiffs have stated valid claims, they bear the burden of
demonstrating that Carpenter's actions violated clearly established
law.
A
Hermosillo was shot and killed by Cabano. Despite plaintiffs'
efforts at "artful pleading," see Daniels v. Williams, 474 U.S.
327, 334, 106 S. Ct. 662, 666 (1986), they have failed to allege a
state deprivation of rights secured by the Fourteenth Amendment.
Recent Supreme Court decisions applying the due process clause to
unintentional injuries lead us to this conclusion.
The due process clause is not implicated by a negligent act of
an official which causes unintended loss of or injury to life,
liberty, or property. Daniels v. Williams, 474 U.S. 327, 106 S.
Ct. 662, 663 (1986). The focus is on the Fourteenth Amendment's
curb of deliberate abuses of governmental power. The Supreme Court
has rejected the notion that an abuse of governmental power is a
distinct and necessary element of § 1983 claims. See Collins v.
City of Harker Heights, 112 S. Ct. 1061, 1065 (1992). Even so, the
arbitrary and abusive character of state action is relevant to
determining whether a constitutional violation has occurred. See
id.; Daniels, 474 U.S. at 331-332, 106 S. Ct. at 665. The
Constitution does not supplant traditional tort law by creating
liability for commonplace injuries, indeed finding a constitutional
13
claim from such facts trivializes due process. Daniels, 474 U.S.
at 332, 106 S. Ct. at 665.
The court applied Daniels in its companion case, Davidson v.
Cannon, 474 U.S. 344, 106 S. Ct. 668 (1986). In Davidson,
defendant prison officials negligently failed to protect the
plaintiff after learning that he had been threatened by another
prisoner, who later assaulted him. The Court held that the
plaintiff did not have a due process claim.
Far from abusing governmental power, or employing it as
an instrument of oppression, [an official] mistakenly
believed that the situation was not particularly serious,
. . . . The guarantee of due process has never been
understood to mean that the State must guarantee due care
on the part of its officials.
Id. at 348, 106 S. Ct. at 670.
Three years later, the Court addressed whether substantive due
process requires a state to protect persons from private violence.
DeShaney v. Winnebago Cty. Dep't of Social Services, 489 U.S. 189,
109 S. Ct. 998 (1989), held that "a State's failure to protect an
individual against private violence simply does not constitute a
violation of the Due Process Clause." Id. at 197, 109 S. Ct. at
1004. State officials had many indications that a child's father
was abusing him, and had even taken temporary custody of him while
investigating. The father later severely injured the child. The
Court concluded that the officials' failure to prevent this injury
did not deny due process. The Constitution imposes no duty on
states to provide protective services or otherwise prevent violence
by private actors. Id. Even assuming that the state was aware of
the danger the father posed, no duty arose because "it played no
14
part in their creation, nor did it do anything to render him any
more vulnerable to them." Id. at 201, 109 S. Ct. at 1006. Since
no duty to act existed, the failure to act did not violate the
Constitution. Id. at 202, 109 S. Ct. at 1007.5
Although in each of these cases, the Court refused to find a
constitutional violation, their principles allow room for some due
process claims based on unintentional injuries to protected rights.
If the state actor has a requisite mental state, a due process
deprivation could occur under two sets of circumstances. First, a
procedural or substantive due process violation could occur if a
state official causes injury by arbitrarily abusing governmental
power. Second, a substantive due process violation could occur if
uncommon circumstances create a duty for the state to protect a
particular person.
Neither Daniels, Davidson, nor DeShaney involved intentional
injury to protected rights. In each case, it was negligent conduct
which allegedly caused harm. The Court has not decided "whether
something less than intentional conduct, such as recklessness or
'gross negligence,' is enough to trigger the protections of the Due
Process Clause." Daniels, 474 U.S. at 334 n.3, 106 S. Ct. at 666
n.3; see also DeShaney, 489 U.S. at 202 n.10, 109 S. Ct. at 1007
5
The Court's resistance to efforts to constitutionalize tort
law was again demonstrated in Collins v. City of Harker Heights,
112 S. Ct. 1061 (1992). The Court rejected the assertion that a
government employer's failure to adequately train or warn its
employee of known dangers constituted a due process violation.
It found that the city's alleged conduct was not "arbitrary, or
conscience-shocking, in a constitutional sense." Rather,
"[p]etitioner's claim is analogous to a fairly typical state law
tort claim." Id. at 1070.
15
n.10. We have held that a constitutional deprivation can result
from "tortious conduct exceeding mere negligence but not quite
rising to the level of intentional, e.g., deliberate (or conscious)
indifference, recklessness, or gross negligence." Doe v. Taylor
Ind. School Dist., 975 F.2d 137, 142 (5th Cir. 1992); see also
Lopez v. Houston Ind. School Dist., 817 F.2d 351, 355 (5th Cir.
1987).6
Daniels and Davidson demonstrate that negligent conduct does
not implicate the due process clause. Nonetheless, unintentional
conduct more culpable than negligence may deny due process. The
Seventh Circuit has held, and we are not inclined to disagree, that
officials who arbitrarily prevent the rescue of persons in known
danger deny due process if they act with the requisite mental
state. This would be the sort of abuse of governmental authority
not found in Daniels or Davidson, but like the paradigmatic claim
found in dicta in Jackson v. City of Joliet, 715 F.2d 1200 (7th
Cir. 1983), cert. denied, 465 U.S. 1049 (1984). A police officer
failed to discover that a burning car contained accident victims,
and directed traffic away from the vehicle. The Jackson court
stated that
6
Other circuits are divided on the question of whether gross
negligence is sufficiently different from negligence to justify
basing a deprivation on such conduct. Compare Taylor v.
Ledbetter, 818 F.2d 791, 793 (11th Cir. 1987)(en banc)(holding
pro), cert. denied, 489 U.S. 1065 (1989) and Vinson v. Campbell
Cty. Fiscal Court, 820 F.2d 194, 199-200 (6th Cir. 1987)(accord)
with Archie v. City of Racine, 847 F.2d 1211, 1219-20 (7th Cir.
1988)(en banc) (holding con), cert. denied, 109 S. Ct. 1338(1989) and Myers v. Morris, 810 F.2d 1437, 1468 (8th
Cir.)(accord), cert. denied, 484 U.S. 828 (1987).
16
if officer Taylor, knowing the car was occupied and
wanting the occupants to be burned to death, directed
traffic away from the scene in order to prevent any
passing driver from saving them, he would be liable under
section 1983 for having under color of the city ordinance
making him a public officer deprived the plaintiffs'
decedents of their lives without due process of law.
Id. at 1202. In that hypothetical case, an abuse of governmental
power occurs, because it is the authority vested in the officer by
the state which allows him to prevent any effort to rescue the
endangered person.
Holding that recklessness would proxy intent, the Seventh
Circuit found a due process violation on facts similar to its
hypothetical. Ross v. United States, 910 F.2d 1422, 1433 (7th Cir.
1990). In Ross, a twelve-year-old boy fell into Lake Michigan.
Several minutes after he submerged, civilians, fire fighters, and
a police officer reached the scene and desired to attempt a rescue.
Before they could do so, however, a deputy sheriff on lake patrol
arrived and barred anyone from entering the lake. He asserted a
county policy that only fire department divers were to engage in
rescues, and threatened to arrest anyone else who tried. Id. at
1424-25. The court held that the deputy committed a constitutional
tort by interfering with private rescue efforts to save the child.
The deputy acted recklessly, because he knew that the child had
been submerged for several minutes and could die at any moment if
not rescued immediately. Thus, the deputy violated the child's
17
constitutional rights by "cutting off private avenues of lifesaving
rescue without providing an alternative." Id. at 1432.7
We are not persuaded that the facts of this case present a
similar constitutional violation. Carpenter did not cut off all
avenues of rescue for Hermosillo without providing an alternative.
Even accepting plaintiffs' inferences regarding Carpenter's mental
state, they have failed to show an abuse of power implicating the
Fourteenth Amendment. Although Carpenter dismissed the Fort Worth
police officers, sheriff's deputies were at the same time securing
the courthouse and commencing negotiations with Cabano. The fact
that sheriff's deputies were ultimately unable to prevent Cabano
from killing Hermosillo does not mean that they were not a
"meaningful" source of protection for Hermosillo. See id. at 1431(county policy cut off rescue source without "meaningful
alternative"). Because of the deputy's conduct in Ross, no effort
was made to rescue a drowning boy for thirty minutes. In contrast,
at the time Carpenter dismissed the police his deputies were
present and negotiating with Cabano. Carpenter did not use his
authority as a state officer to prevent any rescue, rather he
exercised his authority to replace one rescue effort with another.
These facts resemble Andrews v. Wilkins, 934 F.2d 1267 (D.C.
Cir. 1991), because in neither case did officials use their
authority to cut off a private rescue effort. In Andrews, a man
7
See also Justice Brennan's dissent in DeShaney: "[I]f a
State cuts off private sources of aid and then refuses aid
itself, it cannot wash its hands of the harm that results from
its inaction." 109 S. Ct. at 1009 (Brennan, J., dissenting).
18
fleeing from arrest for a misdemeanor tried to swim across a river
channel. While in the channel he became unconscious, so police on
shore hailed a private boat and directed it to him. Seeing that he
was unable to reach a life jacket, the boaters intended to enter
the water to rescue him, but police directed them not to, saying
that the man was an escapee who might be dangerous. Id. at 1269.
The court declined to consider this as reckless interference with
a private rescue effort, noting that "rather than using their
authority to interfere in a private rescue, the police officers
used their authority to involve the [boaters] in the police rescue
efforts." Id. at 1271. The officers did not cut off a private
avenue of rescue, but controlled the conduct of a police rescue,
considering factors such as the safety of those involved. In that
way, they, like Carpenter, did not abuse their governmental power.
DeShaney makes it plain that the state's failure to protect a
person can amount to a deprivation only if the state had a duty to
act. DeShaney recognized, however that some settings create a
special relationship between the state and a person, imposing a
duty to protect the person. 109 S. Ct. at 1004-05. A substantive
due process right to protective services exists when the state
holds persons in custody or similarly limits their ability to care
for themselves. Doe v. Taylor Ind. School Dist., 975 F.2d 137, 146
(5th Cir. 1992). Generally, the absence of a special relationship
defeats any due process claim based upon a failure to provide
protective services. See also Jackson v. Byrne, 738 F.2d 1443,
1447 (7th Cir. 1984); Handley v. City of Seagoville, 798 F. Supp.
191267, 1272 (N.D. Tex. 1992) (Sanders, C.J.). Hermosillo was not
held in state custody or otherwise prevented by the state from
caring for herself. This was a failed rescue effort.
Courts have found a denial of due process when the state
creates the faced dangers. Gregory v. City of Rogers, 974 F.2d
1006, 1010 (8th Cir. 1992)(en banc); see also L.W. v. Grubbs, 974
F.2d 119, 121 (9th Cir. 1992); Wood v. Ostrander, 879 F.2d 583 (9th
Cir. 1989), cert. denied, 111 S. Ct. 341 (1990); White v. Rochford,
592 F.2d 381 (7th Cir. 1979).8 Plaintiffs must urge an expansion
of this rule, for no reasonable jury could find that Carpenter
created the danger that Cabano would kill Hermosillo. Cf. Gregory,
974 F.2d at 1012 (officer did not create danger that drunks would
drive car by leaving them unsupervised while dealing with driver
inside station). Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990),
held that a claim may exist when officials increase a person's
vulnerability to private violence by interfering with protective
services which otherwise would be available. Id. at 54. Seeds for
such an expansion are arguably found in DeShaney, where the Court
stated that no duty to protect the plaintiff from free world
dangers arose because the state "played no part in their creation,
nor did it do anything to render him any more vulnerable to them."
109 S. Ct. at 1006 (emphasis added). The Eighth Circuit concluded
that
8
"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).
20
a constitutional duty to protect an individual against
private violence may exist in a non-custodial setting if
the state has taken affirmative action which increases
the individual's danger of, or vulnerability to, such
violence beyond the level it would have been at absent
state action.
Freeman, 911 F.2d at 55.
Had Carpenter not acted, plaintiffs contend, the police
department would have provided a better equipped and more
experienced force to handle the hostage negotiations and possibly
to conduct a dynamic entry to rescue Hermosillo. Thus, Carpenter
allegedly acted in a way which left Hermosillo, unlike Joshua
DeShaney, in a worse position than if the state official had never
been involved.
We are not persuaded, however, that Carpenter increased
Hermosillo's vulnerability to danger in the sense envisioned by the
Court in DeShaney. Nor do we agree that this case is governed by
Rochford and Wood. In Wood, for example, a trooper arrested a
driver and abandoned the female passenger in a high crime area in
the middle of the night, creating the danger that she would be
assaulted. 879 F.2d at 590. Police in Rochford arrested a driver
and left children unattended on a highway. 592 F.2d at 382. In
Grubbs, the state placed a nurse in danger by assigning her to work
alone with a dangerous inmate and failing to warn her that she
would be exposed to sex offenders. 974 F.2d at 120. In each of
these cases, officials failed to take any action to alleviate the
danger which they created or aggravated. Carpenter, on the other
hand, did not worsen Hermosillo's position and abandon her to allow
events to run their course. The sheriff continued at all times to
21
supervise a law enforcement effort to secure her safe release. We
decline to hold that this conduct shocks the conscience or is
otherwise a deprivation of due process. See Rochford, 592 F.2d at
383; Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 209
(1952).
The Fourteenth Amendment does not require Carpenter to train
and equip members of the sheriff's department for special SWAT or
hostage negotiation duties.9 The Constitution does not provide a
right to protective services such as ambulance service, Archie v.
City of Racine, 847 F.2d 1211, 1220 (7th Cir. 1988) (en banc),
cert. denied, 489 U.S. 1065 (1989), or fire-fighting equipment,
Jackson v. Byrne, 738 F.2d 1443, 1448 (7th Cir. 1984). It does not
mandate that law enforcement agencies maintain equipment useful in
all foreseeable situations. With no constitutional duty to provide
SWAT or hostage negotiation equipment, Carpenter's failure to do so
does not deny due process. See DeShaney, 109 S. Ct. at 1007.
Plaintiffs argue that City of Canton v. Harris, 109 S. Ct.
1197 (1989), supports their claim that police who undertake to
handle a hostage situation must be adequately trained. In Harris,
however, the city's policy allegedly prevented a prisoner from
receiving medical treatment which the city had a duty to provide.
As an initial matter, this case does not involve municipal
liability. Moreover, we do not read Harris to adopt for
9
We do not decide whether such a claim can properly be
brought against Carpenter in his individual capacity, the
capacity for which he seeks qualified immunity. Because of our
resolution of the claim, we may assume arguendo that it can be.
22
constitutional law the tort principle that if police undertake to
perform a service not mandated by the Constitution, then adequate
training for the conduct of that service would be constitutionally
required. As the court noted in Andrews v. Wilkins, 934 F.2d 1267(D.C. Cir. 1991), it would be anomalous to impose liability for
failing in an effort not required by the Constitution. Id. at
1270. Cf. Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.
1983)(§ 1983 claim may not be based on negligence of police who
respond to an accident); Jackson v. Byrne, 738 F.2d 1443, 1447 (7th
Cir. 1984)(city did not acquire constitutional duty to provide fire
protection by once providing such services). Such a rule would
create perverse incentives, discouraging police encountering
unanticipated situations from responding.
B
In addition to concluding that plaintiffs have failed to state
a constitutional claim, we find that Carpenter was otherwise
entitled to qualified immunity. Even if a official's conduct
violates a constitutional right, he is entitled to qualified
immunity if the conduct was objectively reasonable. Pfannstiel v.
City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990). The objective
reasonableness of allegedly illegal conduct is assessed in light of
the legal rules clearly established at the time it was taken.
Creighton, 483 U.S. at 639, 107 S. Ct. at 3038. A right will be
considered clearly established only when its contours are
sufficiently clear so that a reasonable official would understand
that what he is doing violates that right. Id. at 640, 107 S. Ct.
23at 3039; White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992). "This
is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been
held unlawful, but it is to say that in light of pre-existing law
the unlawfulness must be apparent." Creighton, 483 U.S. at 640,
107 S. Ct. at 3039 (citation omitted). On appeal from an order
denying summary judgment based on qualified immunity, plaintiffs
have the burden to come forward with evidence sufficient to create
a genuine issue as to whether the defendant's conduct was
objectively unreasonable in light of clearly established law.
Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990).
"If reasonable public officials could differ on the lawfulness of
the defendant's actions, the defendant is entitled to immunity."
White, 959 F.2d at 544.
We are not persuaded that the contours of the law in this area
were well defined in August of 1989. Even today, it remains
uncertain whether officials who cause harm by gross negligence can
violate the due process clause. See supra at notes 7-8.
Reasonable officials may disagree over when a duty to protect
private citizens arises. See Freeman v. Ferguson, 911 F.2d 52, 55
(8th Cir. 1990)("the law is not entirely established as to the
extent to which the government must increase the danger of private
violence before it assumes a corresponding duty to protect"). On
the other hand, the Ninth Circuit held that it was clearly
established in 1984 that a police officer's deliberate
indifference, which enhances an individual's risk of being harmed
24
by a private actor, violates due process. Wood v. Ostrander, 879
F.2d 583 (9th Cir. 1989), cert. denied, 111 S. Ct. 341 (1990).
Plaintiffs have failed, however, to carry their burden of showing
that Carpenter acted with deliberate indifference. The facts here
are a far cry from those in Ross, where the deputy knew that the
submerged child faced an almost certain risk of drowning if not
immediately rescued. The only admissible evidence with which
plaintiffs would demonstrate a culpable mental state are
Carpenter's public statements following the tragedy. These
statements are not probative of deliberate indifference or reckless
disregard for a recognized danger. In fact, Carpenter's statement
that he continued to believe that a SWAT team had not been
necessary to handle the crisis tends to show that he did not
recognize a danger resulting from the dismissal of that team. And,
as we explained, the conclusory allegations of Dr. Greenstone's
affidavit may not be relied upon to create a genuine issue of fact
precluding summary judgment.
Moreover, as Creighton demonstrates, the reasonableness of an
official's conduct must be judged according to the uncertainty of
the facts known, as well as the certainty of the law. 483 U.S. at
641, 107 S. Ct. at 3040 (determining objective reasonableness of
conduct "will often require examination of the information
possessed" by officials). Qualified immunity will be granted if a
reasonable official would be left uncertain of the law's
application to the facts confronting him. Hopkins v. Stice, 916
F.2d 1029, 1031 (5th Cir. 1990). On this basis, Carpenter is
25
entitled to qualified immunity. While it should be clear to police
officials that they cannot "arbitrarily assert [their] power so as
to cut short a person's life," Ross, 910 F.2d at 1433, it would not
have been apparent to a reasonable official that relying solely
upon sheriff's department personnel would result in Hermosillo's
death. Plaintiffs' expert, Dr. Greenstone, testified regarding
what actions are best taken or avoided during a hostage situation.
An objective official's possession of this knowledge, however, does
not equate with knowledge that failure to follow such procedures
will probably result in the death of the hostage. Carpenter
attempted to negotiate Hermosillo's release with inexperienced
deputies and untrained civilians. While this course of action may
have been imprudent, even reckless, we are not persuaded that a
reasonable official would recognize that it was contrary to law.
An important policy behind qualified immunity is to prevent
litigation which "will unduly inhibit officials in the discharge of
their duties." Creighton, 483 U.S. at 638, 107 S. Ct. at 3038.
Second-guessing the decision of law enforcement officers regarding
the choice of police personnel in a crisis would undermine that
policy. Lawsuits alleging that police should have acted one way or
another in response to a hostage situation "pose[] a no-win
situation for the police and do[] nothing to encourage law
enforcement or a respect for constitutional rights." Taylor v.
Watters, 655 F. Supp. 801, 807 (W.D. Mich. 1987).
26
We do not say that this crisis was properly handled or that
Sheriff Carpenter made no mistakes. We say only that there was no
denial of Juanita Hermosillo's constitutional rights.
V
We REVERSE the district court's denial of his motion to
dismiss and for summary judgment.
27