Dorothy JONES, as personal representative of the estate of Denise Michelle Jones, deceased, Plaintiff-Appellant,
v.
Aaron REYNOLDS; Mustapha M. Atat; City of Lincoln Park; William Kish, III; Joseph Lavis; Douglas Muncey; Mohamed Nasser, Defendants-Appellees.
No. 04-2320.
United States Court of Appeals, Sixth Circuit.
Argued: November 2, 2005.
Decided and Filed: February 27, 2006.
COPYRIGHT MATERIAL OMITTED ARGUED: Joseph Dedvukaj, Southfield, Michigan, for Appellant. Michelle A. Thomas, Thomas, DeGrood & Witenoff, Southfield, Michigan, Rosalind Rochkind, Garan Lucow Miller, Detroit, Michigan, for Appellees. ON BRIEF: Joseph Dedvukaj, Southfield, Michigan, for Appellant. Michelle A. Thomas, Thomas, DeGrood & Witenoff, Southfield, Michigan, Rosalind Rochkind, John J. Gillooly, Garan Lucow Miller, Detroit, Michigan, for Appellees.
Before: MOORE and SUTTON, Circuit Judges; BUNNING, District Judge.*
SUTTON, J., delivered the opinion of the court, in which BUNNING, D.J., joined.
MOORE, J. (pp. 699-707), delivered a separate dissenting opinion.
OPINION
SUTTON, Circuit Judge.
At 1:45 a.m. on October 8, 2001, Aaron Reynolds and Mustapha Atat began a drag race on a public street on the outskirts of Detroit. After roughly one-sixth of a mile, Reynolds lost control of his car and it veered into a crowd of spectators, striking Denise Jones and killing her. What separates this calamity from many others is that police officers from the City of Lincoln Park, a suburb of Detroit, arrived at the scene before the race and had an opportunity to prevent it from beginning. Not only did they fail to stop the race but, so far as this summary-judgment record shows, they also exprеssly allowed the participants to proceed with the race. For their part in this incident, the officers faced separate state-law criminal charges, a separate state-law civil lawsuit and eventually this § 1983 action, which claimed that the misconduct of the officers and the City of Lincoln Park violated Jones' substantive due process rights.
When a claimant attempts to hold public officials responsible for private acts of violence under the Fourteenth Amendment, as this § 1983 action does, the depravity of the fact pattern often is enough to make "a devil[] sick of sin." Wilfred Owen, Dulce Et Decorum Est (1918). This case is no exception. And when a claimant argues that government officials failed to prevent private individuals from causing another injury, as this § 1983 action does, DeShaney v. Winnebago County Department of Social Services,
I.
In the early morning hours of October 8, 2001, four Lincoln Park police officers—William Kish III, Joseph Lavis, Douglas Muncey, Mohamed Nasser—came upon a crowd of individuals at the intersection of Fort Street and Outer Drive in the City of Detroit, which borders Lincoln Park. The crowd of individuals, as it turns out, were spectators awaiting the beginning of a drag race.
While the officers claim that they arrived at the scene five to ten minutes before the race, others claim that they arrived up to an hour before the race started. Several individuals saw officer Nasser approach the drag racers, speak briefly with Mustapha Atat, then return to his police car. Aaron Reynolds, the other drag racer, stated that he intended to abandon the race when the police arrived but proceeded with the race when officer Nasser told Atat that they could "go ahead and race." JA 1041. One spectator claimed to have seen officer Nasser place a bet on the race after he talked to Atat. After the officers returned to their two police vehicles in the parking lot on the Lincoln Park side of the street, several bystanders heard one of the officers announce over his car's public address system that "[w]e are not [here] to arrest anyone, go ahead with the race," JA 1046, and then heard the officer play rap music over the public address system. The officers claim that they made no such announcement and played music for just "two seconds" and, even then, only to alert the crowd that they were watching and intended to break up the gathering. Spectators estimated that the crowd ranged in size from 150-300 people and noted that the intersection of Fort Street and Outer Drive, which is in Detroit, was completely blocked by the race participants and spectators, preventing traffic into and out of Lincoln Park.
At about 1:45 a.m., the two cars raced north on Fort Street, which is in Detroit, away from the officers. Despite having been at the scene before the race began, the officers did not notify the Lincoln Park police dispatcher, as was department procedure, or attempt to break up the crowd aside from playing music over their public-address system, which was not department procedure. The cars proceeded north at 130 or so miles per hour before Reynolds lost control of his car about one-sixth of a mile from the start of the race. He veered into the crowd, and his car struck several spectators, including Denise Jones, who died from injuries suffered from the collision. Aftеr the accident, the officers contacted their dispatcher, who contacted Detroit police. Once the Detroit police arrived, the Lincoln Park police left without giving statements. The Lincoln Park Police Department learned that its officers had been at the scene of the accident only through subsequent media coverage.
The accident prompted several criminal and civil actions. Reynolds pleaded guilty to involuntary manslaughter, failure to stop at the scene of an accident resulting in death, two counts of felonious driving, and drag racing. Atat faced similar charges but fled the country before he could be prosecuted. Officers Nasser, Muncey and Lavis pleaded no contest to criminal charges of neglect of duty. On March 28, 2003, the Michigan circuit court granted a $25 million default judgment to Dorothy Jones, suing on behalf of the decedent, against the drivers. The court granted summary judgment against Jones on her state tort claims against the officers and the City of Lincoln Park, concluding that "the proximate cause" of the death was Reynolds alone. See Jones v. Reynolds, No. 250616, slip op. at *6 (Mich.Cir. Ct. Apr. 7, 2005); see also Mich. Comp. Laws § 691.1407(2); Robinson v. City of Detroit,
Pursuing further legal remedies, Dorothy Jones filed this § 1983 action against the officers and the City of Lincoln Park in federal district court. The district court granted summary judgment to the City and the officers on all of Jones' claims. As to the officers, the cоurt held that Jones "offered no evidence that they knew or had reason to know that the decedent specifically was in any more danger than any other citizen in the area that evening." D. Ct. Op. at 19 (emphasis omitted). As to the City of Lincoln Park, the court held that there was "no evidence of an affirmative act by the City" or that the City knew or should have known of the risk. Id. at 24. Jones challenges both conclusions on appeal, where we apply a de novo standard of review, Beecham v. Henderson County,
II.
Section 1983 provides a federal cause of action for civil damages against an individual acting under color of state law who deprives another of "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. In this case, Jones argues that the officers violated the substantive due process guarantees of the Fourteenth Amendment when they failed to protect Denise Jones from the perils of an illegal drag race organized by private citizens on the streets of the City of Detroit. To overcome the officers' qualified immunity from this individual-liability action, Jones must make two showings: that the officers violated the decedent's constitutional rights and that those rights werе "clearly established" at the time of the incident. Saucier v. Katz,
A.
"[N]othing in the language of the Due Process Clause itself," the Court has instructed, "requires the State to protect the life, liberty, and property of its citizens against invasion by private actors." DeShaney v. Winnebago County Dep't of Soc. Servs.,
Since DeShaney, this circuit has recognized a second exception to the prohibition against holding public officials constitutionally responsible for private acts of violence. Relying on the following language from DeShaney—"[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them," id. at 201,
B.
In this case, Jones has not argued that the officers placed Jones in custody or otherwise restrained her liberty in a way that prohibited her from taking care of herself. The custodial or special-rеlationship theory of liability thus does not apply. Cf. Stemler v. City of Florence,
1.
Jones cannot show that the officers engaged in a cognizable "affirmative act" that "created" this "danger." "There is no evidence that [the officers] took any affirmative action that exposed decedent to any danger to which she was not already exposed." Sargi,
Jones also cannot establish that the officers "increased" her risk of danger when they failed to stop the race. The officers, it is true, came upon an illegal drag race and failed to stop it—or at least discourage it if, as appears to be the case, the race was being held on streets beyond their jurisdiction. But a "failure to act is not an affirmative act under the state-created danger theory," Cartwright,
Whether the conduct of government officials in some cases should be treated as a failure to act or as action "may be a difficult question in the abstract," Bukowski,
Nor can Jones escape this conclusion by emphasizing that the drag racers planned to abandon the race once they saw the officers and would not have proceeded with the race had the officers not told them they could do so. "The question is not whether the victim was safer during the state action, but whether [she] was safer before the state action than [she] was after it." Cartwright,
In Bukowski v. City of Akron,
In rejecting the girl's substantive due process claim against the officers and city, Bukowski held that she had not established an "affirmative act," reasoning as follows:
Although in DeShaney the state returned Joshua to the ultimate aggressor, the DeShaney Court explicitly rejected the idea that such acts met the state-action requirement. The Court in DeShaney was not merely assuming that state actors did not contribute to the hazards faced by Joshua, but it was also holding that the act of returning someone to the same dangers that existed status quo ante does not satisfy the state-action requirement.
Examining the quality of governmental involvement here, it is apparent that the government was no more involved in making Bukowski more vulnerable to private violence than it was in DeShaney—in both cases, the government was merely returning a person to a situation with a preexisting danger. The plaintiffs' argument that the officials encouraged Hall by their act of returning Bukowski is really the same as the argument that the officials encouraged Hall by their refusal to get involved.
A similar conclusion applies here. "Whether or nоt the defendants `acted' may be a difficult question in the abstract, but DeShaney [and Bukowski] make[] clear that the acts of the officials here clearly fall on the inaction side of the line." Id. Indeed, DeShaney and Bukowski would seem to present the harder fact patterns. In both cases, the police temporarily removed vulnerable individuals from danger by taking them into custody. And when they returned the victims to the same special danger, the courts nonetheless held that no liability ensued because "the government was merely returning a person to a situation with a preexisting danger." Id. at 709; DeShaney,
Here, by comparison, the police never took Jones into custody and (so far as the record shows) never had any interaction with her at all. In point of fact, neither party has presented any evidence that Denise Jones was even at the scene when the officers arrived. But even if she was there at that time, both parties agree that she stood on the sidewalk, was almost 266 yards from the start of the race, was still farther from the Lincoln Park Palace parking lot (where the two police cars were parked) and was well within the jurisdiction of the City of Detroit. Under these circumstances, the most that one could say is that when the police arrived they had temporary control (or loose "custody") of the drivers and that they could have retained that control and either stopped the race from occurring (assuming of course that they had jurisdiction over this street) or at least urged the drivers not to race. As in DeShaney and Bukowksi, they chose not to retain that control and "placed [the drivers and spectators] in no worse position than that in which [they] would have been had [the officers] not acted at all."
Even if an officer bet on the drag race, as one spectator alleges, and even if the officers played rap music for 15 minutes rather than 2 minutes, as other spectators allege, that does not change matters. While such conduct certainly would not have discouraged the participants from proceeding with the race, it also cannot be said that it placed the drivers or spectators in greater danger than if the police had never arrived. As deeply regrettable and ultimately tragic as the officers' actions were, no evidence suggests that their conduct altered the risk of harm to Denise Jones. See McQueen,
Further breaking the link between the officers' actions and Jones' death is the uncontested fact that the officers played no role in Jones' decision to attend the drag race. Unlike the victims in DeShaney and Bukowski, who not only each were temporarily in the custody of the State but also faced age and disability restrictions in their ability to care for themselves, the officers never met Jones (much less took custody over her) and no one has offered any evidence as to why she could not have looked after herself in choosing whether to be a spectator at a dangerous event. When a victim bears some responsibility for the risks she has incurred, it is even more difficult to say that the "state" has "created" the "danger" to her by its affirmative acts. See Summar v. Bennett,
Attempting to alter this conclusion, Jones points to several other decisions. None is convincing. "[W]ith respect to non-custodial cases," one of them, Nishiyama v. Dickson County,
The dissent raises several other points that deserve consideration. What would happen if the officers had not merely said they would decline to stop the race but instead had actually participated in the race—for example, by waving a flag to signal the start of the race, by doing the play-by-play for the race or by driving one of the cars in the race? Dissent Op. at 701. We agree that these examples likely would state a constitutional claim but not because they would establish a claim under DeShaney. Had the officers organized or participated in this race, the issue would cease to turn on whether they were responsible for harm caused by a private actor and would turn instead on whether they had caused the harm themselves. See County of Sacramento v. Lewis,
Under these circumstances, we would have no reason to determine whether the officers had increased the risk of harm to the victim because they would be the source of that risk. Here, however, Jones has not alleged that the officers had anything to do with the organization of the race or that they participated in it. All of which explains why plaintiff has not presented this case as one in which the officers directly harmed Denise Jones but rather as one in which they allowed private actors to harm her. Yet in order to establish a state-created danger under our case law, plaintiff must show that the state actor increased the risk of harm to the victim—namely, by showing that the government did more than "merely returning a person to a situation with a preexisting danger." Bukowski,
In some circumstances, we agree, an officer's encouragement of private illegal acts may state a constitutional claim, but that is because in some circumstances such encouragement will increase the risk of harm to the victim and because in some circumstances private misconduct will become public misconduct when it occurs at the prompting of public officials. Yet, as shown, plaintiff has not claimed—and cannot tenably claim on this record—that the officers' actions either created or increased the risk of harm to Denise Jones. In marked contrast, if an officer (inеxplicably) had encouraged the assailant in Bukowski to rape the victim or if an officer (inexplicably) had encouraged the father in DeShaney to beat his son, both officers plainly would have increased the risk of danger to the victims. See Dissent Op. at 703. The same simply is not true here. By allegedly choosing not to stop the race and by allegedly saying to the drivers that they "could go ahead and race," JA 1042, the officers acted irresponsibly but they did not increase the risk of harm facing Denise Jones and the 150 or so other people that chose voluntarily to attend the race. For like reasons, Pena v. DePrisco,
As DeShaney and Bukowski both show, the time frame for assessing whether an affirmative act has occurred is not after the officers have arrived and temporarily taken control of the situation but before the officers have arrived. In both decisions, the officers took custody of the vulnerable victims and removed the risk of harm to them and only later returned them to the same risk they had faced before their arrival. Were it true that the question whether the officers increased the risk of harm to the victim must be answered from a different vantage point—namely, after the officers have arrived on the scene and temporarily removed the risk of harm, see Dissent Op. at 702-03—DeShaney and Bukowski would have come out differently. Both decisions involved fact patterns in which the officers plainly increased the risk of harm to the victims—if, that is, the proper vantage point is after, not before, the officers arrived. Instead, however, both decisions rejected the claims, concluding that "the government was merely returning a person to a situation with a preexisting danger." Bukowski,
All things considered, Jones "cannot show" what our cases require—"that defendant officers created or increased the risk that [Jones] would be struck by a vehicle." Cartwright,
2.
Jones also has failed to show that the district court erred in holding that she did not satisfy the second prong of this claim—the "special danger" requirement. A special danger exists "where the state's actions place the victim specifically at risk, as distinguished from a risk that affects the public at large." Kallstrom,
When by comparison the victim was not identifiable at the time of the alleged state action/inaction, we have held that a § 1983 suit may not be brought under the "state created danger" theory. See Schroder v. City of Fort Thomas,
Jones cannot satisfy this standard. The officers never interacted with Denise Jones. No evidence has been put forward suggesting that the officers had any reason to know that they were putting her at risk by their action/inaction that night. And witnesses to this tragedy estimated that the crowd contained at least 150 people at the time of the race. That figure plainly is more than a handful оf people specially put at risk by state action or inaction. And, indeed, it is not unlike the number of people put at risk when the police allegedly failed to enforce a speed limit on a residential street. See Schroder v. City of Fort Thomas,
C.
Even if there were doubt about these conclusions, it is clear at a minimum that Jones has not shown a violation of constitutional rights that were "clearly established" at the time of the officers' action/inaction. No authority from our circuit extant at the time of the incident even begins to suggest that the 150 people at the drag race would satisfy the "special danger" requirement. And no authority from our circuit supports the theory that the officers committed a cognizable affirmative act when they did not create or increase the danger to Denise Jones that she voluntarily undertook before they arrived.
III.
In view of these conclusions, Jones' claim against the City of Lincoln Park also fails as a matter of law. "[T]he determination that the City's officials did not violate the plaintiffs' constitutional rights resolves the claim against the City as well." Bukowski,
* * * * * *
As is so often true in "state created danger" cases, there is much to lament about what happened here. The Lincoln Park police officers behaved exceedingly badly. The drivers had no business racing their cars on Detroit city streets. And Denise Jones exercised poor judgment in attending the race.
The most grating feature of this calamity, however, is that the police, a group upon whom we rely for public safety, had only to exercise reasonable judgment, indeed even below-average judgment, to prevent October 8, 2001 from being anything other than a late-night out for Denise Jones. Yes, the Lincoln Park officers did not have jurisdiction over Detroit city streets. Yes, their lack of jurisdiction over Detroit city streets makes one wonder whom the officers could reasonably assure that this illegal drag race would not be prosecuted—as in fact it eventually was. And yes, as the Michigan courts held, the "proximate cause" of this accident was the actions of the drivers, not the officers. See Jones v. Reynolds,
Faced with these kinds of assertions, it is tempting to say that they satisfy the "state created danger" doctrine. But, to do so, we would have to say that the doctrine covers conduct it does not—that it covers state action that does not create or increase the risk of danger to the victim and that it applies to state action that does not specifically increase the risk of danger to a discrete individual or group of individuals. And even were we to move the doctrine in these directions, that would not advance this claim because the very act of modifying these rules would defeat plaintiff's obligation to show that the officers violated "clearly established" law. While we decline to extend the doctrine in this case, nothing in our decision prevents future litigants from arguing what the plaintiff has not argued here—that the alleged actions of the officers converted the private misconduct of the drivers into public misconduct and in the process converted this claim into a direct-injury constitutional claim under the Lewis, as opposed to DeShaney, line of cases.
As DeShaney reminds us, moreover, our decision does not prevent the Michigan legislature from creating "a system of liability" that "would place upon the State and its officials the responsibility" for conduct like this.
IV.
For these reasons, we affirm.
Notes:
Notes
The Honorable David L. Bunning, United States District Judge for the Eastern District of Kentucky, sitting by designation
MOORE, Circuit Judge, dissenting.
On October 8, 2001, Aaron Reynolds ("Reynolds") lost control of the car he was driving in an illegal drag race. The vehicle careened into a crowd of spectators, striking and killing Denise Jones ("Jones"). Several Lincoln Park police officers arrived at the scene before the race began and did not stop it, but this is emphatically not what this case is about. What really matters is Jones's evidence that the race was about to be called off for fear of police intervention but ultimately went forward after the officers actively encouraged the race to proceed, reassuring the drag racers and the crowd that nobody would be arrested for conducting the race. Because I believe that this evidence, if credited by a jury, establishes both an affirmative act and a special danger under the state-created-danger theory, I would reverse and remand the case to allow the district court to address the issue of state culpability in the first instance. Thus, I respectfully dissent.
I.
I present the following facts drawn from the record in order to give a fuller picture of the crucial events that transpired on October 8, 2001. Naturally, the defendants dispute much of this account, but given the procedural posture, we must view the evidence in the light most favorable to Jones.
There is evidence in the record to suggest that the race would have been cancelled because of the officers' arrival at the scene. According to an eyewitness, "[e]verybody was fittin' to leave because they [saw] the police." Joint Appendix ("J.A.") at 281 (Young Dep. at 22). Indeed, some vehicles drove away soon after the officers' arrival. J.A. at 1219 (Muncey Statement at 6). Moreover, Reynolds, the driver of the car that struck Jones, "was afraid to race when the Lincoln Park Police first drove up" for fear of being arrested, so he "was in the process of putting [his] car back onto the trailer, to call off the race." J.A. at 1041 (Reynolds Aff. at 2); see also J.A. at 281 (Young Dep. at 22) ("[T]hey [were] about to pack up and leave.").
Of course, the race was not called off. At least one officer—apparently Officer Mohamed Nasser ("Officer Nasser")—briefly spоke to Reynolds and the other drag racer, Mustapha Atat ("Atat"). J.A. at 281-82 (Young Dep. at 22-23), 1041 (Reynolds Aff. at 2), 1046 (Ricks Aff. at 2), 1053 (Moore Aff. at 1), 1239 (Request for Warrant/Investigator's Report at 1). Officer Nasser told Reynolds that the officers "want[ed] to see the race." J.A. at 1041 (Reynolds Aff. at 2). On the way back to his vehicle, Officer Nasser was seen placing a wager on the drag race. J.A. at 1053 (Moore Aff. at 1). Officer Nasser returned to his cruiser, "got on his loud speaker[,] and said, `We're not here to arrest anyone, go ahead.'" J.A. at 282 (Young Dep. at 23); see also J.A. at 1041 (Reynolds Aff. at 2) ("[W]e were told by the Lincoln Park Police to go ahead and race."), 1046 (Ricks Aff. at 2), 1049 (W. Turner Aff. at 2), 1054 (Moore Aff. at 2), 1109 (T. Turner Aff. at 3). Officer Douglas Muncey played rap music over a loudspeaker before the race began. J.A. at 284-85 (Young Dep. at 25-26), 662 (Muncey Dep. at 69), 1042 (Reynolds Aff. at 3), 1047 (Ricks Aff. at 3), 1050 (Turner Aff. at 3), 1053 (Moore Aff. at 1), 1109 (T. Turner Aff. at 3), 1234 (Nasser Statement at 22). In response to the music, the crowd "got hyper" and "everybody start[ed] hollering and . . . dancing." J.A. at 287-88 (Young Dep. at 28-29); see also J.A. at 1050 (Turner Aff. at 3). According to an eyewitness, "[i]t's like the police initiated the race to go on." J.A. at 288 (Young Dep. at 29). Indeed, Reynolds attested, "I would not have raced if the police officers had not told me that we could go ahead and race." J.A. at 1042 (Reynolds Aff. at 3).
II.
In Kallstrom v. City of Columbus,
A. Affirmative Acts that Create or Increase the Risk
"Liability under the state-created-danger theory is predicated upon affirmative acts by the state which either create or increase the risk that an individual will be exposed to private acts of violence." Id. at 1066. The majority's conclusion that the officers committed no cognizable affirmative acts has two bases. First, the majority claims that the officers simply failed to stop or discourage the race from happening, such that all the state did was fail to act. See Cartwright v. City of Marine City,
Both strands of the majority's reasoning depend on partitioning the officers' conduct into two phases—(1) arrival at the scene and (2) everything else—and then considering only the first. I assume for present purposes that under our precedents, the police would not have committed an affirmative act if they had simply arrived at the race and done nothing, as that truly would have been a failure to act that did not create or increase the risk of the drag race. But those are not the facts of this case, because that is not all the officers did. Jones has offered evidence showing that the officers actually were quite busy upon their arrival: they reassured the racers, Reynolds and Atat, that the race could proceed; announced over a loudspeaker that they would not arrest anyone, so the race could "go ahead"; and played rap music over a loudspeaker, which had the effect (and perhaps the intent) of stirring up the crowd. The majority inexplicably refuses to acknowledge that Jones's claim is based on all of this conduct rather than the mere fact that the officers did not stop the race.
The majority offers no persuasive reason for ignoring these actions. It tries to wish away thе facts by repeatedly invoking the principle that a failure to act does not state a due process violation, but that gets the inquiry exactly backward: the only way to determine whether the officers merely failed to act is by considering all the facts. The decisions cited by the majority certainly do not compel its myopic view of the facts, as none involved state officials arriving at a scene and then actually encouraging private actors to engage in dangerous acts or telling them that the state would look the other way. Furthermore, it is difficult to square turning a blind eye to post-arrival conduct with the principle that the Due Process Clause "is phrased as a limitation on the State's power to act." DeShaney v. Winnebago County Dep't of Soc. Servs.,
I cannot help but wonder whether there is any post-arrival conduct that the majority wouldn't ignore. Could an officer have waved a grеen flag to signal the start of the race? Could a second officer have served as a play-by-play announcer over the loudspeaker? Could yet another officer have gotten behind the wheel and actually driven in the race against Reynolds? In response to these questions, the majority concedes (albeit under the wrong rubric3) that officers would run afoul of the Due Process Clause by engaging in these three hypothetical acts. This means that the majority detects a constitutionally significant difference between an officer waving a flag to signal the start of a race and an officer announcing over a loudspeaker that the racers may "go ahead." The line between these two acts is too fine for me to see. What rationale justifies treating these two acts differently? Is it the physical distance between the officers and the racers (i.e., although here the officers were just across the street from the race, they would have had to be even closer to wave the starting flag)?4 Is it the prop used by the officer (i.e., the racers might have been encouraged by the officers giving the "go ahead" over a loudspeaker, but waving the flag would have shown that the officers really meant it)? These reasons are obviously too flimsy to bear the weight of a constitutional distinction, yet the majority offers none of its own. All we are left with, then, is the fact that the relevant conduct occurred after the officers arrived at the scene. Perhaps the majority would remove its blinders for post-arrival conduct surpassing some higher level of egregiousness, but its reasoning certainly suggests no limits to its brand of willful ignorance.
It is clear, then, that the proper point of comparison is not the risk that Jones would have faced if the officers had never arrived at all, but the risk that would have existed had the officers arrived but not reassured the racers, announced that the race could go ahead, and played rap music (i.e., if they had not committed the acts that the majority ignores). After the officers arrived but before they engaged in this additional conduct, people in the crowd were preparing to leave, some vehicles actually did leave, and one of the racers—Reynolds, the driver who struck Jones—was in the process of putting his car on a trailer and calling off the race. This evidence suggests that the race would not have gone forward if the officers had not committed these additional acts upon their arrival at the scene. By reassuring the racers and the people in the crowd that they could "go ahead" because they would not be arrested and by riling up the crowd with rap music played over a loudspeаker, the officers instead actually encouraged the race to proceed. The officers' actions, which revived a drag race that was about to be abandoned, thus created or increased the risk of injury to Jones.
The majority attempts to foreclose this analysis by likening the case to Bukowski v. City of Akron,
There are critical differences between the instant case and Bukowski and DeShaney. Rather than merely suspecting a danger, here the police arrived and actually saw the private actors preparing for the drag race, i.e., the very danger that ultimately harmed Jones. And rather than merely returning the victim to the status quo ante due to a lack of evidence of the risk, here the police encouraged the private actors to engage in the dangerous conduct even though they otherwise would have abandoned it. For Bukowski to be truly analogous to the case аt bar, the officers would have had to know the rapist was about to attack Bukowski and then tell the rapist to go ahead despite his willingness to stop. Similarly, for DeShaney to be genuinely analogous, the state social workers would have had to know DeShaney's father was about to beat his son and then encourage him to proceed even as he was about to give up the attack. Surely Bukowski and DeShaney would have come out the other way in these hypothetical scenarios.
Of course (and as the majority agrees), it is unimaginable that state officials would act in the manner posed in these hypothetical variations on Bukowski and DeShaney. But that is precisely the point: Jones has presented evidence that the officers in the instant case did act unimaginably, by encouraging Atat and Reynolds to engage in a dangerous and illegal drag race that ultimately killed Jones (and by egging on the crowd to boot).5 If this evidence were credited by a jury, it would demonstrate that the officers committed affirmative acts that created or increased the risk of harm to Jones.
The conclusion that the officers' encouragement of the drag race constituted an affirmative act increasing the risk to Jones is consistent with other cases holding that where officers enable or embolden a private actor to drive dangerously, they commit an аffirmative act for state-created-danger purposes. In Pena v. DePrisco, the officers drank excessively with the private actor (an off-duty officer) and rode in the car with him while he drove drunk.
There are obvious parallels between these cases and the instant case. Officers knew or should have known of a potential driver who would be unquestionably dangerous if allowed on the road: a drunk driver in Pena and Reed; a dangerous felon who could masquerade as a cop in Nishiyama; and drag racers here. Rather than simply failing to act, the officers actively did something to enable or encourage the dаngerous driver to proceed: in Pena, they sent implicit signals condoning drunk driving; in Reed, they removed the car's driver and left behind the vehicle's keys with a drunk passenger; in Nishiyama, they handed over the keys for a patrol car to an unsupervised, dangerous felon; and here, they reassured the drag racers that they could race, announced over a loudspeaker that nobody would be arrested and that the race could "go ahead", and played rap music to energize the crowd.7
The majority's decision rests on its conclusion that there was no affirmative act as a matter of law. Because I believe that Jones offered enough evidence to survive summary judgment with respect to the affirmative-act issue, I proceed to the remaining Kallstrom prongs.
B. Special Danger
In addition to an affirmative act, "plaintiffs alleging a constitutional tort under § 1983 [must] show [a] `special danger.'" Kallstrom,
The district court's view of the special-danger requirement is inconsistent with our precedents. When we have rejected the existence of a special danger, the plaintiff faced the same danger as the general public. E.g., Schroder v. City of Fort Thomas,
A drag race consists of driving at dangerous speeds for a limited time and distance. The confined scope of the race means that it posed a greater danger to the people lining the street at that time than to the public at large, as most of the general population was not in the vicinity at the time of the race. In other words, the officers' actions set an out-of-control car hurtling toward a specific crowd of people at a specific time. Thus, the spectator crowd constituted a "discrete class of individuals," Schroder,
The discreteness of the drag race distinguishes it from the dangers in decisions like Jones v. City of Carlisle and Schroder v. City of Fort Thomas. In City of Carlisle, we rejected a claim premised on the state's permitting a person known to suffer from uncontrollable epileptic seizures to maintain a driver's license, because the driver "was no more a danger to [the plaintiff] than to any other citizen on the City streets."
Finally, the majority claims that our cases actually require the government to be able to "specify whom it was putting at risk, nearly to the point of naming the possible victim or victims." Majority Op. at ___. They say no such thing. We have never held that a group—short of the general public—is too large to be the target of a special danger. The folly of the majority's revisionist rule demonstrates why we have not heretofore adopted it: the majority denies that Jones faced a special danger because she was part of a crowd, yet it would presumably conclude otherwise if Jones had been the only spectator. Am I to believe that the Due Process Clause, which is "a limitation on the State's power to act," DeShaney,
C. State Culpability
The final requirement of the state-created-danger test is that "[t]he state must have known or clearly should have known that its actions specifically endangered an individual." Kallstrom,
III.
Whether a state official should intervene in private affairs is often a tough call, as potential land mines line the paths of both action and inaction. Indeed, this difficulty was a supporting rationale in DeShaney. The state was sued for leaving Joshua with his father, but "had [state social workers] moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship." DeShaney,
Because I believe that Jones's evidence would satisfy the first two prongs of the state-created-danger test if credited by a jury, I would reverse the order granting summary judgment to the defendants and remand to the district court to address the third prong (and, if necessary, the issues of qualified immunity and municipal liability) in the first instance.
For the reasons set forth above, I respectfully dissent.
Notes:
Nor did the district court rule on the first prong. I address the issue here, however, because it is the basis of the majority's decision
This rule is not unique to direct state-created-danger claims. It is also, for example, a well-settled part of § 1983 supervisory-liability doctrineSee, e.g., Estate of Carter v. City of Detroit,
To be clear, I posit in each of these hypothetical questions that Reynolds's car ultimately strikes Jones, so a private actor is the direct cause of the harm. Thus, the majority cannot brush the examples aside by simply claiming that the state-created-danger theory is not implicated at all
A fixation with physical proximity might explain why the majority repeatedly notes the fact that the race occurred in Detroit while the officers were in Lincoln Park. While this geographical circumstance might be relevant to whether state law permitted the officers tostop the race, it has no bearing on whether the Cоnstitution permits them to actively encourage the race.
One might argue that an impending rape or beating presents a more likely risk of harm than an impending drag race. This is beside the point, however, because the test is whether the affirmative act created orincreased the risk of harm. Of course, the occurrence of a drag race presents a greater risk of harm than the absence of one.
QuotingStemler v. City of Florence,
Of course, the principle that officers commit affirmative acts when they encourage private misconduct that leads to violence is not limited to driving casesSee Dwares v. City of New York,
The district court purported to resolve the summary-judgment motion on the basis of the thirdKallstrom prong, i.e., state culpability. The substance of the analysis makes clear, however, that the court blended the second and third prongs and actually focused on the second prong, i.e., special danger.
Jones v. Union County,