930 F.3d 640
4th Cir.2019Background
- On August 12, 2017, the "Unite the Right" rally took place in Charlottesville; counter-protester Robert Sanchez Turner alleges he was attacked by rally participants while police did not intervene.
- Turner alleges a preexisting "stand-down" order from Charlottesville and Virginia State Police leadership instructing officers to refrain from intervening in violent confrontations among protesters unless directly ordered otherwise.
- Turner claims officers told demonstrators about the stand-down and that officers watched his thirty-second attack (macing, beating, bottles thrown) without stepping in.
- Turner sued under 42 U.S.C. § 1983, asserting substantive due process violations under the state-created danger theory against Chief Al Thomas Jr. and State Police Superintendent W. Stephen Flaherty; he also asserted supervisory and Monell claims (the City claim was waived on appeal).
- The district court dismissed for failure to state a claim, finding Thomas and Flaherty entitled to qualified immunity; the Fourth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ordering a police "stand-down" during violent clashes created state-created danger violating substantive due process | Turner: stand-down was an "affirmative act" that created or increased risk to protesters (state-created danger) and thus violated due process | Thomas/Flaherty: stand-down was at most nonaction/omission; precedent requires high showing of affirmative conduct; no clear constitutional violation | Held: No. Under Fourth Circuit precedent the state-created danger doctrine is narrow and a stand-down did not amount to the necessary affirmative act to make the danger state-created |
| Whether defendants are entitled to qualified immunity because any constitutional right was not "clearly established" at the time | Turner: the facts should have given officers fair warning that ordering nonintervention violated due process | Defendants: no controlling or robustly persuasive authority would have given fair warning; reasonable officers could conclude stand-down lawful | Held: Defendants entitled to qualified immunity — the asserted right was not clearly established, so dismissal affirmed |
Key Cases Cited
- DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189 (U.S. 1989) (general rule: Due Process does not impose duty to protect individuals from private violence)
- Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995) (state-created danger doctrine narrow; failing to provide protection is not necessarily an "affirmative act")
- Doe v. Rosa, 795 F.3d 429 (4th Cir. 2015) (reiterating high bar for "affirmative acts" creating or enhancing danger)
- Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (qualified immunity two-step: constitutional violation and clearly established law)
- Harlow v. Fitzgerald, 457 U.S. 800 (U.S. 1982) (standard for qualified immunity: protection when conduct does not violate clearly established rights)