Estate of Phillips v. District of Columbia , 455 F.3d 397 ( 2006 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 9, 2006 Decided August 1, 2006
No. 03-7060
ESTATE OF ANTHONY SEAN PHILLIPS, SR.,
LYSA LAMBERT PHILLIPS, PERSONAL REPRESENTATIVE OF THE
ESTATE OF ANTHONY SEAN PHILLIPS, SR., DECEASED,
INDIVIDUALLY AND MOTHER AND NEXT BEST FRIEND OF
ARZEL SHAMAR PHILLIPS AND ANTHONY SEAN PHILLIPS, JR.,
MINORS, ET AL.,
APPELLEES
v.
DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL.,
APPELLEES
DONALD EDWARDS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 00cv01113)
Donna M. Murasky, Assistant Attorney General, for the
District of Columbia, argued the cause for the appellant. Robert
J. Spagnoletti, Attorney General, and Edward E. Schwab,
Deputy Attorney General, for the District of Columbia, were on
brief.
2
Ralph L. Lotkin argued the cause for the appellee. Joel M.
Abramson was on brief.
Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Two District
of Columbia (D.C. or District) firefighters who were injured and
the families of their two colleagues who died in a May 1999 fire
(Firefighters) brought a civil rights action against the District
and Donald Edwards, the former Chief of the D.C. Fire
Department (Department). Edwards seeks interlocutory review
of the district court’s denial of his motion to dismiss based on
qualified immunity. We conclude that the district court erred in
denying Edwards qualified immunity because the Firefighters
did not allege the violation of a clearly established constitutional
right; that is, even if Edwards’s failure to remedy the
Department’s continuing violations of standard operating
procedures amounted to conscience-shocking conduct, neither
the District nor Edwards owed the Firefighters the “heightened
obligation” required by our precedent and by the United States
Supreme Court to impose an affirmative duty to protect them
under the Due Process Clause of the Fifth Amendment.
Accordingly, we reverse the district court’s denial of Edwards’s
motion to dismiss on the qualified immunity ground.
I.
Shortly after midnight on May 30, 1999, D.C. firefighters
responded to a multi-alarm townhouse fire at 3146 Cherry Road
N.E.1 Firefighter Anthony Sean Phillips Jr. entered the first
1
We take the background facts from the allegations of the
complaint. See Wagener v. SBC Pension Benefit Plan, 407 F.3d
395, 401 (D.C. Cir. 2005) (on review of dismissal, we “accept[] the
3
floor with Lieutenant Frederick Cooper, the officer in charge of
his engine company. Soon after entering the townhouse the two
were separated and Cooper exited the building without Phillips.
Meanwhile Lieutenant Charles Redding and firefighters Joseph
Morgan and Louis J. Matthews, all three from a different engine
company, also entered the burning building, unaware that
Phillips and Cooper were inside. Battalion Chief Damian Wilk,
the Incident Commander initially in charge of coordinating the
Department’s efforts at the site, relied on a portable radio device
rather than the stronger-signal mobile radio mounted in his
vehicle that he could have used had he established a fixed
command post. Wilk radioed Redding twice to locate his
position but Redding, inside the house, never received the
transmission. Soon another fire truck arrived and began
ventilating the townhouse’s basement by breaking the rear
basement sliding glass door.2 The truck improperly conducted
the ventilation, resulting in a sudden temperature increase inside
the structure. Superheated gases from the fire shot up the
basement stairway to the first floor. Redding, still on the first
floor and in the gases’ path, ran out of the house, his face and
back burning. He told Battalion Chief Wilk that Matthews was
still in the townhouse, unaware that Morgan and Phillips were
still inside as well. Wilk did not order a rescue effort until 90
factual allegations made in the complaint as true and giv[e] plaintiffs
the benefit of all inferences that can reasonably be drawn from their
allegations”).
2
Ventilation is the process by which firefighters remove a fire’s
byproducts (such as heat, smoke and gas) to make a frontal attack on
the fire itself. It usually involves breaking out closed windows in the
burning structure, tearing out walls and, when a fire reaches the
structure’s top floor, cutting holes in its roof. Webster’s Third New
International Dictionary 2541 (8th ed. 1981).
4
seconds later, when Morgan exited the house suffering from
severe burns. Seven minutes after the rescue effort began
firefighters found Phillips severely burned and unconscious.
Four minutes later they found Matthews in a similar state.
Phillips died of his injuries 23 minutes after his removal from
the townhouse. Matthews died of his injuries the following day.
Morgan and Redding survived but suffered severe injuries.
One year later Morgan, Redding and Phillips’s and
Matthews’s families filed separate civil rights actions under 42
U.S.C. § 1983 (section 1983) against the District, Edwards3 and
three other Department officials, including Wilk and Cooper.4
The Firefighters argued Edwards was deliberately indifferent to
his duty to ensure that the Department complied with its own
standard operating procedures (SOPs) and that his deliberately
indifferent conduct deprived the Firefighters of their
“constitutionally protected liberty, interests in life, personal
security [and] bodily integrity” and of “substantive due process
of law.” Phillips 1st Am. Compl. ¶ 79, Joint Appendix (JA) 65;
Redding 1st Am. Compl. ¶ 28, JA 87. The Firefighters relied
on, inter alia, the Department’s Reconstruction Report on the
3
Edwards was sued in both his individual capacity as Department
chief and in his official capacity, i.e., as the Department. Phillips
1st Am. Compl. ¶ 26, reprinted at Joint Appendix (JA) 47; Redding
1st Am. Compl. ¶ 10, JA 83. See Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in
his or her official capacity is not a suit against the official but rather
is a suit against the official’s office. As such, it is no different from
a suit against the State itself.” (internal citations omitted)).
4
The district court consolidated the four Firefighters’ cases.
Subsequently the plaintiffs voluntarily dismissed their claims against
Wilk. See Estate of Phillips v. District of Columbia, 355 F. Supp.
2d. 212, 213 n.2 (D.D.C. 2005); see also infra note 6.
5
Cherry Road fire (Cherry Road report) that described numerous
SOP violations that, they claimed, caused their respective
injuries and deaths, including the Department’s failure to follow
equipment backup and maintenance procedures, its failure to
ventilate the townhouse properly and to coordinate personnel,
Cooper’s failure to maintain required contact with and to locate
Phillips and the Department’s failure to supply sufficient
personnel to the scene. See Phillips 1st Am. Compl. ¶ 44, JA 53.
The Firefighters also claimed that another report completed
before the Cherry Road fire, namely an internal Reconstruction
Report on the 1997 death of firefighter John Carter in a grocery
store fire (Carter report), gave the defendants notice of the
Department’s failure to follow SOPs. The Cherry Road report
noted that the deficiencies in training, staffing, equipment and
administration identified in the Carter report persisted and
declared that “the Department must no longer tolerate the notion
that SOPs and proper fireground behaviors are only important
for ‘major’ fires and not as important for ‘routine’ fires.” Id. ¶
44, JA 53 (quoting Cherry Road report). The Firefighters
claimed that the Department’s “policy and custom not to
implement recommendations to improve operation of the
[Department] or to enforce [SOPs] was conscious, knowing, and
deliberate and not the result of simple or negligent oversight
made under emergency, spur of the moment conditions without
either the opportunity or time for deliberation” and, as such, was
“an affirmative election of a specific course of action.” Id. ¶ 65,
JA 62. Regarding Edwards, the Firefighters alleged that he was
required to comply with the “operational mandates of the D.C.
Fire Department,” and his failure to do so constituted a “de facto
policy and custom of the District of Columbia of a deliberate
indifference to such matters,” id. ¶ 64, JA 61–62. Edwards’s
conduct was “egregious and shock[ed] the conscience” and
constituted “deliberate indifference to the [Firefighters’] clearly
established rights.” Id. ¶¶ 67, 68, JA 62.
6
The District moved to dismiss the Firefighters’ complaint
under Federal Rule of Civil Procedure 12(b)(6), arguing that it
failed to state a claim under section 1983. See Def. District of
Columbia’s Mot. to Dismiss Pl.’s Am. Compl., D.D.C. No. 00-
cv-01113, R. Doc. 39. Edwards joined the District’s motion and
also asserted his qualified immunity from suit in his individual
capacity.5 See Notice of Filing, D.D.C. No. 00-cv-01113, R.
Doc. 52. The district court denied the motion, Estate of Phillips
v. District of Columbia, 257 F. Supp. 2d 69 (D.D.C. 2003)
(Phillips I), concluding the Firefighters stated a substantive due
process claim against the defendants. Because the Carter report
had put the Department on notice of the “serious consequences
that could result” from Edwards’s deliberate indifference to the
enforcement of the Department SOPs, the court held that their
complaint alleged conscience-shocking behavior under County
of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (conscience-
shocking conduct violates substantive due process). Phillips I,
257 F. Supp. 2d at 79. It also denied Edwards qualified
immunity in light of his “ongoing failure to institute corrective
training or to follow [the Department’s] own rules even after the
scathing reviews contained in a number of safety reports.” Id.
at 80. Based on the Carter report it was fair to assume, the
district court stated, that Edwards and the other Department
officials “had advance notice of the fatal pattern and practice of
SOP violations within the Fire Department.” Id. The court also
concluded that the right to be free from “conscience-shocking
executive action” was “clearly established” at the time of the fire
because “the potential for deliberate indifference to [rise] to
5
A government official sued in his individual capacity is shielded
from personal liability in a 1983 action if, at the time he acted, the
constitutional right allegedly violated was not “clearly established.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987); Barham v.
Ramsey, 434 F.3d 565, 572 (D.C. Cir. 2006).
7
such a level as to shock the conscience has been repeatedly
recognized.” Id.After the district court decided Phillips I, we issued two
qualified immunity decisions, International Action Center v.
United States, 365 F.3d 20 (D.C. Cir. 2004) (IAC), and
Fraternal Order of Police v. Williams, 375 F.3d 1141 (D.C. Cir.
2004) (FOP). The district court sua sponte ordered the parties
to address the impact of those decisions on the Phillips I
decision but, after reviewing the parties’ pleadings, it declined
to modify it. Estate of Phillips v. District of Columbia, 355 F.
Supp. 2d 212 (D.D.C. 2005) (Phillips II). In IAC we reversed a
district court decision denying qualified immunity to District
police supervisory personnel for their alleged failure to properly
train and supervise their officers, finding the district court’s
analysis “failed to link the likelihood of particular constitutional
violations to any past transgressions, and failed to link these
particular supervisors to those past practices or any familiarity
with them.” IAC, 365 F.3d at 27. In Phillips II the district court
distinguished IAC, however, contrasting the claim there which,
according to the court, was “too general to support the plaintiffs’
theory of liability,” to the Cherry Road and Carter reports which
put the defendants “on notice of specific circumstances and
problems that, if not addressed, were almost certain to result in
injury or death.” Phillips II, 355 F. Supp. 2d at 217, 218(emphases in original).6 The district court also found FOP
distinguishable. In FOP correctional officers alleged that the
District was deliberately indifferent to their safety and therefore
violated their substantive due process right when it increased the
6
The Firefighters did, however, voluntarily dismiss Cooper from
the litigation in light of IAC because he neither knew of nor was
responsible for deficient training and enforcement. Phillips II, 355
F. Supp. 2d. at 218 n.4.
8
inmate population at its Central Detention Facility while
reducing the number of correctional officers assigned there. We
found that the officers did not state a claim under section 1983
because the District’s decision to take those actions was a
“rational policy choice made amid competing resource demands
and in the context of outside pressures,” including another
facility’s closing and cuts in appropriations. Id. at 221 (citing
FOP, 375 F.3d at 1142). Here, the Firefighters alleged that the
District and Edwards “did nothing because they simply did not
care,” id. at 222, and if that allegation were true, the district
court found, “this deliberate indifference continues to shock this
Court’s conscience and nothing in the FOP decision persuades
this Court that its previous conclusion is flawed.” Id.
The district court read another aspect of the FOP decision
as “present[ing] a more difficult obstacle” to the
Firefighters—our statement that the “lower threshold” for
meeting the shock the conscience test by showing deliberately
indifferent as opposed to intentional conduct “applies only in
‘circumstances where the State has a heightened obligation
toward the individual.’ ” Id. at 222, 220 (quoting FOP, 375 F.3d
at 1145–46). The FOP decision gave as an example of the type
of claimant owed a “heightened obligation” a prison inmate, as
distinguished from a corrections officer, to whom the state owed
no heightened obligation under Washington v. District of
Columbia, 802 F.2d 1478 (D.C. Cir. 1986). FOP, 375 F.3d at1146 (citing Washington, 802 F.2d at 1482). Despite the
Firefighters’ status as voluntary public employees, however, the
district court applied the heightened obligation requirement
because, under D.C. Code § 5-407(a), they were not free to
resign their positions “without the mayor’s permission and one-
month’s notice.” Phillips II, 355 F. Supp. 2d. at 222. Given this
restriction on District firefighters’ ability to resign, the district
court found “the firefighter’s employment comes closer to the
heightened obligation standard than would the more common at-
9
will, voluntary employment situation.” Id. Edwards filed an
interlocutory appeal of the denial of the motion to dismiss on the
qualified immunity ground. See Mitchell v. Forsyth, 472 U.S.
511, 530 (1985) (denial of motion for summary judgment on
qualified immunity ground immediately appealable); IAC, 365
F.3d at 23 (“[W]e have jurisdiction to hear interlocutory appeals
from denials of qualified immunity—‘to the extent that [the
denial] turns on an issue of law.’ ” (quoting Mitchell, 472 U.S.
at 530) (alteration in original)).
II.
Qualified immunity under section 1983 shields a state or
local official from personal liability unless his action violated a
“clearly established statutory or constitutional right[] of which
a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). “A court evaluating a claim of
qualified immunity must first determine whether the plaintiff
has alleged the deprivation of an actual constitutional right at
all.” Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Conn
v. Gabbert, 526 U.S. 286, 290 (1999)); see also Lewis, 523 U.S.
at 841 n.5 (same).7 Our review of the district court’s legal
conclusions is de novo. Butera v. District of Columbia, 235
F.3d 637, 647 (D.C. Cir. 2001).
7
See Lewis, 523 U.S. at 841 n.5 (“[T]he generally sound rule of
avoiding determination of constitutional issues does not readily fit the
situation presented here; when liability is claimed on the basis of a
constitutional violation, even a finding of qualified immunity requires
some determination about the state of constitutional law at the time
the officer acted.”); cf. Kalka v. Hawk, 215 F.3d 97–99 (D.C. Cir.
2000) (assuming arguendo violation of constitutional right to decide
qualified immunity issue).
10
In determining whether a plaintiff states a substantive due
process claim, the United States Supreme Court has “always
been reluctant to expand the concept of substantive due process
because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.” Collins v. City of
Harker Heights, 503 U.S. 115, 125 (1992) (citing Regents of
Univ. of Mich. v. Ewing, 474 U.S. 214, 225–226 (1985)). It is
therefore important, the Court went on, “to focus on the
allegations in the complaint to determine how petitioner
describes the constitutional right at stake and what the city
allegedly did to deprive her . . . of that right.” Id. To constitute
a substantive due process violation, the defendant official’s
behavior must be “so egregious, so outrageous, that it may fairly
be said to shock the contemporary conscience.” Lewis, 523 U.S.
at 847 n.8; Collins, 503 U.S. at 128 (only most egregious official
conduct can be “arbitrary in a constitutional sense”); Butera, 235
F.3d at 651 (requirement that state action be sufficiently
egregious to shock conscience “exists to differentiate
substantive due process, which is intended only to protect
against arbitrary government action, from local tort law”). As
we noted in FOP, “the conscience-shock inquiry is a ‘threshold
question’ ‘in a due process challenge to executive action.’ ”
FOP, 375 F.3d at 1145 (quoting Lewis, 523 U.S. at 847 n.8).
Conscience-shocking conduct that violates due process usually
takes the form of affirmative state action. See, e.g., Rochin v.
California, 342 U.S. 165, 172–73 (1952) (officers entering
appellant’s home without warrant, tackling him to ground and
pumping his stomach against his will shocks conscience); Norris
v. District of Columbia, 737 F.2d 1148, 1151 (D.C. Cir. 1984)
(corrections officers’ brutal and habitual beatings of prisoner
shocks conscience).
If the plaintiff alleges that the government official failed to
act, however, he must show that the official was at least
deliberately indifferent to his constitutional rights. See Collins,
11
503 U.S. at 117; City of Canton v. Harris, 489 U.S. 378, 390
(1989) (city must exhibit deliberate indifference toward
individual in its custody before he can bring § 1983 claim based
on its failure to train officers). Deliberate indifference must still
be conscience-shocking in order to state a substantive due
process claim; however, as noted earlier, the “lower threshold
for meeting the shock the conscience test by showing
deliberately indifferent as opposed to intentional conduct applies
only in circumstances where the State has a heightened
obligation toward the individual.” FOP, 375 F.3d at 1145–46
(quotation marks omitted).
The Firefighters assert that their complaint is based on
affirmative state action and, alternatively, on deliberate
indifference, arguing that Edwards’s conduct in not following
Department SOPs and not providing adequate training
constituted the adoption and implementation of a conscience-
shocking government custom or policy.8 See Appellee’s Br. 8–9
8
Edwards’s argument that the Firefighters’ action amounts to a
claim that the Department failed to provide a safe work environment
falls wide of the mark. Appellant’s Br. 17. If this were the sole
basis of the Firefighters’ complaint, Edwards would be correct under
our holding in Washington and the Supreme Court’s holding in
Collins that there is no constitutional right to a safe workplace. In
Washington, for example, we held that a corrections officer’s
allegation that the District’s failure to correct unsafe prison
conditions that led to his being beaten by an inmate did not state a
substantive due process claim because even a “reckless failure” to
remedy unsafe working conditions is not a constitutional violation.
Washington, 802 F.2d at 1481–82. Likewise in Collins, the Supreme
Court rejected the plaintiff’s argument that the municipality violated
its employee’s substantive due process right when he died, allegedly
as the result of the municipality’s failure to train and equip its
employees working in city sewers. Even though the plaintiff
12
(“From the very beginning, the Firefighters have alleged two
independent bases for the Court to find conscience-shocking
governmental conduct.”). Nevertheless their complaint accuses
Edwards of inaction rather than action. See Phillips 1st Am.
Compl. ¶ 96, JA 71 (“[Edwards] deliberately and knowingly
failed to follow . . . established mandatory Standard Operating
Procedures . . .”), id. ¶ 68, JA 62 (“The custom and policy of
Defendant District of Columbia constituted deliberate
indifference to the clearly established rights of the Plaintiff
Firefighters.”); id. ¶ 67, id. (“The conduct and attitude of the
Defendant District of Columbia by virtue of years of notice and
opportunity to reduce firefighter risk by ignoring warnings of
operational failings, was egregious and shocks the conscience
because of, inter alia, the special relationship Defendant District
“alleged that a prior incident had given the city notice of the risks of
entering the sewer lines and that the city had systematically and
intentionally failed to provide the equipment and training required by
a Texas statute,” Collins, 503 U.S. at 117–18 (footnote omitted), the
Court affirmed the dismissal. Because the claimant had not alleged
that the city acted willfully, the Supreme Court read the complaint to
allege, inter alia, that “the Federal Constitution imposes a duty on
the city to provide its employees with minimal levels of safety.” Id.
at 126. The Court rejected this notion because “[n]either the text nor
the history of the Due Process Clause supports petitioner’s claim that
the governmental employer’s duty to provide its employees with a
safe working environment is a substantive component of the Due
Process Clause.” Id. at 126. The Firefighters, however, charge
Edwards with conscience-shocking conduct, not with the failure to
provide a safe workplace. See Phillips 1st Am. Compl. ¶¶ 67, 68,
JA 62 (Edwards’s conduct was “egregious and shock[ed] the
conscience” and constituted “deliberate indifference to the
[Firefighters’] clearly established rights.”). See Appellee’s Br. 6–8.
13
of Columbia has with its firefighters and their reliance upon the
D.C. Fire Department not to institute a policy of deliberate
indifference regarding their safety.”). Both times the
Firefighters’ complaint was before it, the district court treated it
as alleging deliberate indifference rather than affirmative state
action; in Phillips II, it applied the FOP heightened obligation
requirement based on deliberate indifference. See Phillips II,
355 F. Supp. 2d at 222; see also Phillips I, 257 F. Supp. 2d at 79(holding “plaintiffs in the present instance have sufficiently
alleged that the government violated their substantive due
process rights by acting with deliberate indifference”). The
Firefighters’ arguments before us are similar—that Edwards
violated their rights by not acting.9 See, e.g., Appellee’s Br. 3
(“The Firefighters seek to hold Chief Edwards individually
responsible for these subject deaths and injuries on the theory
that he was deliberately indifferent. . . .”). Fairly read, the
Firefighters’ complaint alleges that Edwards failed to act and
therefore deliberate indifference is the standard we apply.
Because deliberate indifference requires a “lower threshold”
showing than does an affirmative act, we insist that only if the
“special circumstances” of a special relationship exist can a
“State official’s deliberate indifference . . . be truly shocking.”
FOP, 375 F.3d at 1146 (internal quotation marks omitted); see
9
Despite the Firefighters’ claim that Smith v. District of
Columbia, 413 F.3d 86 (D.C. Cir. 2005), holds that a policy of
inaction “is typically an affirmative act,” in that case we
characterized the District’s failure to set standards or train employees
as “a policy of deliberate indifference.” Smith, 413 F.3d at 98(emphasis added). We also considered whether a special relationship
existed between the plaintiff and the District, see id. at 93, an
unnecessary inquiry if Smith had in fact been an affirmative act
rather than a failure to act case.
14
also Butera, 235 F.3d at 651 (“lower threshold [for meeting the
shock the conscience test by showing deliberately indifferent as
opposed to intentional conduct] is appropriate in circumstances
where the State has a heightened obligation toward the
individual”) (citing Lewis, 523 U.S. at 851).10 Here the district
court found that Edwards owed the Firefighters a heightened
obligation because of D.C. Code § 5-407(a), which restricts their
ability to terminate their employment. Phillips II, 355 F. Supp.
2d at 222 (in requiring firefighter to give one month’s notice or
obtain Mayor’s permission before resigning, section 5-407(a)
created a relationship “closer to the heightened obligation
standard than would the more common at-will, voluntary
employment situation”). On appeal the Firefighters attempt to
buttress the district court’s finding by pointing to two additional
code sections that allegedly restricted their liberty and therefore
created a special relationship between them and the District:
D.C. Code § 5-410, which forbids firefighters from leaving the
District unless on a leave of absence, and D.C. Code § 5-105.08,
in effect at the time of the Cherry Road fire but no longer in
force, which required firefighters to reside within the District.
See Appellee’s Br. 17. None of these restrictions, individually
or collectively, constitutes a deprivation of liberty by the District
sufficient to establish a special relationship.11
10
It is true that in Butera we found that under the “State
endangerment” theory discussed there, “something less than physical
custody may suffice to present a substantive due process claim.”
Butera, 235 F.3d at 651. This language, however, appeared in the
context of an alleged due process violation based on affirmative
action rather than deliberate indifference.
11
Moreover, the restrictions relied on by the district court to
distinguish a firefighter’s situation from conventional at-will
employment are not imposed; rather, a firefighter agrees to them as
15
In DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989), the Supreme Court described the
special relationship necessary to assert a section 1983 claim
based on a failure to act. There social workers personally
observed the injuries a father inflicted on his child; the man later
beat his son so severely that the child suffered permanent
injuries. The child and his mother brought a section 1983 claim
conditions of employment. Other circuits have rejected state-
enforced restrictions on an individual’s freedom that are voluntarily
assumed as imposing a heightened obligation on the state. In Walton
v. Alexander, 44 F.3d 1297 (5th Cir. 1995), for example, the Fifth
Circuit, sitting en banc, found no special relationship between the
state and the plaintiff, a student at a state-supported residential
school, and the school’s superintendent could therefore not be found
individually liable under section 1983 on a deliberate indifference
theory for a classmate’s sexual assault of the plaintiff. Even though
the plaintiff lost a “substantial measure of his freedom” because of
the residential school’s restrictions, he attended the school “through
his own free will (or that of his parents) without any coercion by the
state”; his “willful relinquishment of a small fraction of liberty is
simply not comparable to that measure of almost total deprivation
experienced by a prisoner or involuntarily committed mental
patient.” Id. at 1304–05. “[O]nly when the state, by its affirmative
exercise of power, has custody over an individual involuntarily or
against his will does a special relationship exist between the
individual and the state.” Id. at 1303 (emphasis in original)
(quotation marks omitted); see also de Jesus Benavides v. Santos,
883 F.2d 385, 388 (5th Cir. 1989) (no special relationship between
plaintiff corrections officers injured by inmates during escape attempt
and state because officers “enlisted, on terms they found satisfactory,
and . . . were free to quit whenever they pleased”) (quoting
Washington) (cited in Walton).
16
against the Winnebago County Department of Social Services,
claiming that its social workers had violated the child’s
substantive due process right. The Court rejected her claim,
concluding that “[i]f the Due Process Clause does not require the
State to provide its citizens with particular protective services,
it follows that the State cannot be held liable under the clause for
injuries that could have been averted had it chosen to provide
them.” Id. at 196–97. The DeShaney Court nevertheless found
that “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 his basic
human needs,” such as in the custodial context if the state
restrains a person from acting on his own behalf, a “special
relationship” exists which gives rise to an affirmative duty to
protect that person. Id. at 200–02.12
In the public employment context, we have consistently
rejected imposing a heightened employer–to–employee
obligation because of the absence of a state-imposed restraint on
liberty. In FOP, we cited Washington’s language distinguishing
a prison inmate from a corrections officer:
Prison guards, unlike the prisoners in their charge, are not
held in state custody. Their decision to work as guards is
voluntary. If they deem the terms of their employment
12
In the failure to act context, at least one circuit has concluded
that a special relationship does not exist without custody. See, e.g.,
Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir.), cert. denied, 516
U.S. 994 (1995) (because custody—element the Supreme Court made
“the crux of the special relationship rule”—was lacking, plaintiff did
not allege the violation of a clearly established constitutional right
and officer entitled to qualified immunity).
17
unsatisfactory, e.g., if salary, promotion prospects, or
safety are inadequate, they may seek employment
elsewhere. The state did not force [the plaintiff] to become
a guard, and the state has no constitutional obligation to
protect him from the hazards inherent in that occupation.
FOP, 375 F.3d at 1146 (citing Washington, 802 F.2d at 1482).
In Washington, the plaintiff corrections officer alleged that it
was District prison authorities’ deliberate indifference to the
dangerous conditions allowing his beating to occur—not the
prisoners who beat him—that caused the constitutional harm.
See Washington, 802 F.2d at 1479. In FOP, the corrections
officers claimed that District officials, “by increasing the
number of inmates at the Jail while decreasing the number of
correctional officers there, affirmatively subjected correctional
officers to an increased likelihood of inmate assaults,” thereby
violating their due process rights. FOP, 375 F.3d at 1142.
Because no special relationship existed between the state and
the officers in either case, however, action the District did not
take could not be the basis of a due process violation. Id. at
1146–47; Washington, 802 F.2d at 1481–82. See also Wallace
v. Adkins, 115 F.3d 427, 429–30 (7th Cir. 1997) (“[T]he risk of
a job reprimand, or even firing, operates as a practical constraint
on a person’s actions, [but] this is still a far cry from the
custodial settings that normally give rise to a special duty on the
state’s part”; “prison guards ordered to stay at their posts are not
in the kind of custodial setting required to create a special
relationship for 14th Amendment substantive due process
purposes”); Walker v. Rowe, 791 F.2d 507, 511 (7th Cir. 1986).
The Firefighters counter that they do not claim
constitutional protection from inherent hazards, as did the
corrections officers in FOP, but from Edwards’s deliberate
indifference to the known need to institute training and to
implement and enforce mandatory safety procedures. This
18
circumstance, they argue, was not inherent to their profession
but rather constituted “avoidable state-created additional risks
of injury” unknown to the Firefighters when they joined the
Department. Appellees’ Br. 18 (emphasis added). Washington,
however, rejected the theory that a failure to act that increases
the plaintiff’s risk of harm constitutes conscience-shocking
action. In Washington the plaintiff corrections officer made
similar claims, pointing to “overcrowding of prisoners, paucity
of guards, inadequate procedures for searching prisoners and
their cells for weapons, and inadequate procedures for
identifying and isolating prisoners with known violent
tendencies.” Washington, 802 F.2d at 1479. His complaint
alleged that the District officials’ “reckless failure . . . to remedy
unsafe conditions at the reformatory” increased the officer’s
exposure to the hazard that eventually caused him harm; we
nonetheless found the harm—a severe beating—“inherent in
[his] occupation.” See id. at 1479, 1482. As in Washington,
Edwards’s deliberate indifference may have increased the
Firefighters’ exposure to risk, but the risk itself—injury or death
suffered in a fire—is inherent in their profession. As both
Washington and FOP make clear, the District is not
constitutionally obliged by the Due Process Clause to protect
public employees from inherent job-related risks. Washington,
802 F.2d at 1479; FOP, 375 F.3d at 1146; see also Collins, 503
U.S. at 128 (in absence of allegation of conscience-shocking
conduct “we have previously rejected claims that the Due
Process Clause should be interpreted to impose federal duties
that are analogous to those traditionally imposed by state tort
law. The reasoning in those cases applies with special force to
claims asserted against public employers because state law,
rather than the Federal Constitution, generally governs the
substance of the employment relationship”) (internal citations
omitted).
19
The Firefighters point to a recent case of ours, Smith v.
District of Columbia, 413 F.3d 86 (D.C. Cir. 2005), as a holding
counter to our bright-line application of the custody
requirement. In Smith, an unidentified assailant murdered a
seventeen-year-old who was living in the Queenstown
Apartments residential complex as part of a program for
delinquent youth. We affirmed a jury verdict finding the
District liable for the resident’s death under section 1983,
holding that the District had a heightened obligation to the
resident and thereby had an affirmative duty to protect him, a
duty which the jury reasonably concluded the District had
breached by its conscience-shocking deliberate indifference to
his safety. Emphasizing the Smith victim’s relative freedom of
movement yet restricted place of residence (similar to the
restraints the D.C. Code provisions allegedly placed on them),
the Firefighters claim that Smith supports their contention that
a heightened obligation can exist absent custody. But in Smith
we found that the District had a heightened obligation because
its in loco parentis status significantly restrained the victim’s
liberty. See Smith, 413 F.3d at 95 (resident legally bound to
participate in program and live at site it provided; “[h]e could
not have gone elsewhere even if, for example, he felt threatened
by his roommate or his neighbors”); id. at 94 (“Because the
District, rather than [his] family, had primary legal control over
him, the District had legal responsibility for his daily care.”); id.(resident “had more freedom than a prisoner—subject to
[program] rules, he could come and go, and take [program]-
approved weekend home visits. . . . But such flexibility hardy
amounts to freedom from state restraints. [He] had to live at
Queenstown Apartments. He had no choice.”). The restrictions
on his liberty—imposed on him by the District—are plainly
distinguishable from those restrictions the D.C. Code imposes
on the Firefighters’ liberty—restrictions voluntarily assumed by
20
the Firefighters as conditions of employment by the
Department.
The facts here, like those in DeShaney, are indeed tragic.
Joseph Morgan and Charles Redding suffered severe injuries
and Anthony Phillips and Louis Matthews died attempting to
save the lives and property of others. But the Constitution does
not provide a basis for holding Edwards individually
responsible.13 The Firefighters have not alleged the deprivation
of a clearly established constitutional right and Edwards is
therefore entitled to qualified immunity from suit in his
individual capacity. Accordingly, we reverse the district court’s
denial of Edwards’s motion to dismiss based on qualified
immunity and remand for further proceedings consistent with
this opinion.
So ordered.
13
This is not to say that state law tort claims are not available to
the Firefighters. Indeed, their consolidated complaints include
pendent causes of action for wrongful death and intentional tortious
conduct. See, e.g., Phillips 1st Am. Compl. ¶ 87, JA 67–68. In
addition, as the District Court pointed out, while the District of
Columbia Police and Firefighters Retirement and Disability Act,
D.C. Code §§ 4–601-34, generally provides “ ‘the exclusive remedy
against the District of Columbia for uniformed personnel’ injured in
the performance of their duties,” it does not preclude an intentional
tort claim brought against a public official. Phillips I, 257 F. Supp.
2d at 83–84 (quoting Vargo v. Barry, 667 A.2d 98 (D.C. 1995)).