Salas v. Carpenter ( 1992 )

                              FOR THE FIFTH CIRCUIT
                                    No. 91-1807
    DORA SALAS, Individually and
    as Representative of the Estate
    of obo JUANITA HERMOSILLO, et al.,
    DON CARPENTER, Individually and
    in his capacity as Sheriff of
    Tarrant County, Texas, et al.,
              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.
         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
    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
    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
    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
          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.
    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
          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
    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
          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,
    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.
    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
         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
          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.
    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
    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
          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
    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
         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
          "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).
    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
    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
           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
    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.
    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
    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
          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.
    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.
         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
    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
          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.
    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
         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
    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
    Cir. 1991),          because   in   neither      case   did    officials    use   their
    authority to cut off a private rescue effort.                     In Andrews, a man
          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).
    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. 19
    1267, 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
    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
          "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).
         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
    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
          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
          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.
    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.
         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. 23
    at 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
    by a private actor, violates due process.            Wood v. Ostrander, 
    879 F.2d 583
     (9th Cir. 1989), cert. denied, 
    111 S. Ct. 341
    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
    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.
    655 F. Supp. 801
    , 807 (W.D. Mich. 1987).
         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.
         We REVERSE the district court's denial of his motion to
    dismiss and for summary judgment.

Document Info

DocketNumber: 91-1807

Filed Date: 12/8/1992

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (45)

Rochin v. California , 342 U.S. 165 ( 1952 )

Harlow v. Fitzgerald , 457 U.S. 800 ( 1982 )

James R. Jackson, Individually and as Administrator of the ... , 465 U.S. 1049 ( 1984 )

Mitchell v. Forsyth , 472 U.S. 511 ( 1985 )

Daniels v. Williams , 474 U.S. 327 ( 1986 )

Davidson v. Cannon , 474 U.S. 344 ( 1986 )

Celotex Corporation v. Myrtle Nell Catrett, Administratrix ... , 477 U.S. 317 ( 1986 )

Anderson v. Creighton , 483 U.S. 635 ( 1987 )

DeShaney v. Winnebago County Dept. of Social Servs. , 489 U.S. 189 ( 1989 )

Canton v. Harris , 489 U.S. 378 ( 1989 )

Siegert v. Gilley , 500 U.S. 226 ( 1991 )

Collins v. Harker Heights , 503 U.S. 115 ( 1992 )

John L. Broadway v. City of Montgomery, Alabama , 530 F.2d 657 ( 1976 )

eugene-white-shirley-white-barbara-mcdowell-a-minor-by-eugene-white-her , 592 F.2d 381 ( 1979 )

Jose Saldana v. Antonio Garza and Ricardo Olvera , 684 F.2d 1159 ( 1982 )

Thomas L. Bowers, Administrator of the Estate of Marguerite ... , 686 F.2d 616 ( 1982 )

David Owen v. Kerr-Mcgee Corporation and the Home Indemnity ... , 698 F.2d 236 ( 1983 )

james-r-jackson-individually-and-as-administrator-of-the-estates-of , 715 F.2d 1200 ( 1983 )

valeria-jackson-tella-robinson-lee-robinson-valerie-jackson-santana , 738 F.2d 1443 ( 1984 )

In Re Air Crash Disaster at New Orleans, Louisiana on July ... , 795 F.2d 1230 ( 1986 )

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