Witkowski, Michael J v. Milwaukee County ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3627
MICHAEL J. WITKOWSKI,
Plaintiff-Appellant,
v.
MILWAUKEE COUNTY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-C-442—Rudolph T. Randa, Chief Judge.
____________
ARGUED FEBRUARY 15, 2007—DECIDED MARCH 13, 2007
____________
Before EASTERBROOK, Chief Judge, and POSNER and
KANNE, Circuit Judges.
EASTERBROOK, Chief Judge. Laron Ball was on trial
during May 2002 for murder. Ball had threatened may-
hem if convicted, so the court took extra precautions,
including extra deputy sheriffs and fitting Ball with a
stunbelt. Steven Gunn and Andrew Halstead, the two
deputy sheriffs normally assigned to the courtroom of
Jacqueline Schellinger, the judge presiding over Ball’s
trial, considered the steps needed to secure and main-
tain the stunbelt an irritating hindrance. On May 29 Gunn
and Halstead decided to take Ball to court without the
belt; they did not inform the other deputy sheriffs of this
decision. The jury returned its verdict that day, pronounc-
2 No. 06-3627
ing Ball guilty. Ball leapt into the jury box and grabbed a
gun from deputy sheriff Michael J. Witkowski, who had
been posted there for additional security. Ball shot
Witkowski in the leg; before he could do worse, Ball was
himself shot and killed by a detective.
Witkowski contends in this action under 42 U.S.C. §1983
that Gunn, Halstead, two of their supervisors, and the
county where court was being held all violated his rights
under the due process clause of the fourteenth amend-
ment by reducing the security precautions with “deliberate
indifference” to the risk that Ball posed. (Gunn and
Halstead not only failed to attach the stunbelt on May 29
but also were outside the courtroom when the jury re-
turned its verdict, an especially dangerous moment given
the nature of Ball’s threats.) The district judge granted
judgment on the pleadings, see Fed. R. Civ. P. 12(c), to all
defendants, ruling that the Constitution does not assure
public employees a safe place to work. 2006 U.S. Dist.
LEXIS 62447 (E.D. Wis. Aug. 30, 2006).
Witkowski was paid to protect judges and the public
from the likes of Ball. To the extent this exposed him to
a personal risk he took it willingly, in exchange for pay
and fringe benefits. The Constitution does not entitle him
to more medical benefits and insurance than what he
agreed to accept. “Neither the text nor the history of the
Due Process Clause supports [a] claim that the govern-
mental employer’s duty to provide its employees with a
safe working environment is a substantive component of
the Due Process Clause.” Collins v. Harker Heights, 503
U.S. 115, 126 (1992). The bill of rights protects people
from the government but does not oblige the government
to furnish protection against private violence. In this
sense the Constitution is a charter of negative liberties.
See DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989).
No. 06-3627 3
Neither Gunn nor Halstead shot Witkowski; Ball did.
The most one can say is that Gunn and Halstead failed
to protect Witkowski (and everyone else in the court-
room) from Ball. DeShaney holds that public failure to
protect someone from private predation is not a “constitu-
tional tort.” We had anticipated Collins and DeShaney
in Walker v. Rowe, 791 F.2d 507, 510 (7th Cir. 1986),
which held that “[t]he constitution no more assures a
safe job than it does a job with a generous salary.” See also
Archie v. Racine, 847 F.2d 1211 (7th Cir. 1988) (en banc);
Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982); for post-
Collins decisions see, e.g., Wallace v. Adkins, 115 F.3d
427 (7th Cir. 1997) (rejecting a claim by a prison guard
stabbed by an inmate who had threatened this guard, in
particular).
Despite acknowledging that no decision in this circuit (or
in any circuit after Collins) has awarded damages under
§1983 to a public employee injured in the line of duty,
Witkowski maintains that all of these cases may be put
to one side because his complaint alleges that Gunn and
Halstead acted intentionally, recklessly, or with deliberate
indifference (a form of intent, see Farmer v. Brennan, 511
U.S. 825 (1994)) to the safety of others. Witkowski con-
tends that this allegation places him within the scope
of what he calls the “state-created danger exception” to
DeShaney.
Allegations of intent do not distinguish Wallace, for the
guard in that case alleged that supervisors knew of the
special danger he faced from a given inmate and placed
him in the same cell block as that inmate anyway. Nor
does it distinguish Walker, where the prison guard alleged
that a supervisor, knowing that a riot was under way
in the prison, deliberately refused to issue guards with the
weapons needed to defend themselves. Or Collins, where
the plaintiff alleged that the city deliberately failed to
4 No. 06-3627
train the workers in safe procedures. More importantly,
the line of argument fundamentally misunderstands the
point of DeShaney, Collins, and the state-created-danger
cases, such as Monfils v. Taylor, 165 F.3d 511 (7th Cir.
1998).
DeShaney held, and Collins reiterated, that the Consti-
tution does not require the government to protect citi-
zens from privately created danger. It may, however,
demand protection if the state disables people from
protecting themselves; having rendered someone help-
less, the state must supply the sort of defenses that the
person could have provided on his own. So, for example, if
the state imprisons someone and prevents him from
obtaining medical care from private physicians and
hospitals, then the state must supply medical care for
serious problems. See Estelle v. Gamble, 429 U.S. 97
(1976). If the state takes a child from his parents and
places him involuntarily with a foster family, it must take
precautions to reduce the chance that the foster parents
will abuse the child. See Murphy v. Morgan, 914 F.2d 846
(7th Cir. 1990). If the police arrest a car’s driver and
induce a drunk to move from the passenger seat to the
wheel, the state has some obligation to the people it has
imperiled. See Reed v. Gardner, 986 F.2d 1122 (7th Cir.
1993). If the state forbids private rescue of a drowning
man, then the state must furnish a competent rescue
service of its own. See Ross v. United States, 910 F.2d 1422
(7th Cir. 1990). See generally Stevens v. Umsted, 131 F.3d
697, 705 (7th Cir. 1997).
All of these cases are variations on the principle that “if
the state puts a man in a position of danger from private
persons and then fails to protect him . . . it is as much an
active tortfeasor as if it had thrown him into a snake pit.”
Bowers, 686 F.2d at 618. But someone who chooses to
enter a snake pit or a lion’s den for compensation cannot
No. 06-3627 5
complain. Powerful evidence shows that higher wages
compensate people whose jobs are risky. See, e.g.,
Xiangdong Wei, Wage compensation for job-related illness,
34 J. Risk & Uncertainty 85 (2007) (collecting earlier stu-
dies). That evidence is not what undercuts Witkowski’s
claim, however; what is dispositive against him is the
fact that he is a volunteer rather than a conscript. The
state did not force him into a position of danger.
This is not to say that public employees are beyond the
Constitution’s protection. Suppose Witkowski had al-
leged that Milwaukee County exposed him to extra risks
because he had campaigned against the County’s political
leaders or because of his race. Such allegations would state
a legally sufficient claim under the first amendment or
the equal protection clause of the fourteenth. See Collins,
503 U.S. at 119-20. That is not Witkowski’s theory,
however. He invokes only the due process cause, the
domain of Collins, DeShaney, and Walker. Allowing Ball
into court without the stunbelt imperiled everyone there:
judge, jurors, and spectators were at more risk than
Witkowski, who could have protected himself (and every-
one else) had he kept control of his weapon. All Witkowski
meant by alleging that Gunn and Halstead acted inten-
tionally or recklessly is that they knew about Ball’s
willingness and desire to wreak havoc, not that they had
some ulterior motive for wanting Witkowski dead or
wounded. Disregarding a known risk to a public em-
ployee does not violate the Constitution whether or not the
risk comes to pass.
AFFIRMED
6 No. 06-3627
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-13-07