VICTORIA WEILAND and DEANNA CHRONES, Plaintiffs-Appellees, v. SHAWN LOOMIS, Defendant-Appellant.
No. 18-2054
United States Court of Appeals For the Seventh Circuit
ARGUED SEPTEMBER 6, 2019 — DECIDED SEPTEMBER 18, 2019
Before EASTERBROOK, KANNE, and BRENNAN, Circuit Judges.
The defendants in the suit include Loomis, Kane County (which employed Loomis as a correctional officer), Delnor Hospital, and Apex3 Security, LLC, which the Hospital hired to provide security for its premises. The appeal, however, concerns only Loomis, who moved to dismiss the complaint on the ground of qualified immunity. A public employee is entitled to immunity in §1983 litigation unless, at the time of the events in question, “clearly established” lаw would have made apparent to any public employee that his or her acts violated the Constitution. See, e.g., Escondido v. Emmons, 139 S. Ct. 500 (2019). Loomis argued that it had not been (and still is not) clearly established that permitting a рrisoner to escape violates the Constitution. He relied principally on DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), which holds that the Constitution, as a charter of negative liberties, does not require the government to protect the рublic from private predators—and it was Salters, not Loomis, who inflicted plaintiffs’ injuries.
The district judge first held that the complaint presents a valid claim for liability under what has come to be called the “statе-created danger exception” to DeShaney. Does I–IV v. Kane County, 308 F. Supp. 3d 960, 967–71 (N.D. Ill. 2018). Under this doctrine, the judge wrote, a public employee is liable for increasing the danger to which other persons are exposed. Loomis did not create danger by transferring Salters to the Hospital; that decision was made by others. So too was the decision that Loomis carry a weapon in a situation that posed a risk if he lost control
The problem with this reasoning is that it starts and ends at a high level of generality. The “state-created danger exception” to DeShaney does not tell any public employee what to do, or avoid, in any situation. It is a principle, not a rule. And it is a principle of liability, not a doctrine (either a standard or a rule) concerning primary conduct. For that one must look elsewhere, but the district judge did not do so. Nor have the plaintiffs.
Citing decisions of this circuit, the district court understood the “state-created danger exception” to DeShaney as equivalent to a constitutional rule prohibiting any act, by any public official, that increases private danger. If that were so, however, then DeShaney itself is wrongly decided. Joshua DeShaney was removed from his father‘s custody and hospitalized as a result of injuries. Joshuа‘s stepmother reported that Randy DeShaney, Joshua‘s father, regularly abused him physically. After deliberation, state child-welfare officials decided to return Joshua to his father. Randy then beat and permanently injured Joshua. No one could have doubted that the child-welfare officials’ decision increased Joshua‘s danger, compared with his safety in the hospital—indeed, that increase was the foundation of his claim for damages—but the Supreme Court nonetheless held that the Due Process Clause of the Fourteenth Amendment does not require a state to protect its residents from private violence. Other courts cannot create an “exception” to DeShaney that contradicts this principle, and as a result we cannot treat the “state-created danger exception” as a rulе of primary conduct forbidding any acts by public officials that increase private dangers. (We have a few words toward the end of this opinion about what the “exception” might mean.)
Over and over, the Supreme Court has held that a right is “clearly established” only if it has been “defined with specificity.” Escondido, 139 S. Ct. at 503. See also, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1152–53 (2018); District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018); White v. Pauly, 137 S. Ct. 548, 552 (2017); San Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015); Mullenix v. Luna, 136 S. Ct. 305, 308 (2005); Carroll v. Carman, 574 U.S. 13, 16–17 (2014); Wood v. Moss, 572 U.S. 744, 757–58 (2014); Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014); Stanton v. Sims, 571 U.S. 3, 5–6 (2013); Reichle v. Howards, 566 U.S. 658, 664 (2012); Brosseau v. Haugen, 543 U.S. 194, 198 (2004). These decisions, and more, tell us that a high level of generality won‘t do.
The district judge resisted the conclusion that “state-created danger” is too general
Consider this possible rule: “The Constitution (through the Due Process Clause) requires guards to prevent prisoners from escaping.” Loomis had to know that keeping Salters under control was his responsibility as a matter of Illinois law and his employer‘s instructions; this hypothetical rule would have told him that the Constitution, too, requires this. It would not be necessary for the rule to say anything about hospitals, or toilets, or how strong a prisoner may be. But this is only a hypothetical, because other litigants have argued that the Constitution requires guards to prevent escapes, and every appellate court that has considered the possibility has rejected it as incompatible with DeShaney. See, e.g., Rios v. Del Rio, 444 F.3d 417 (5th Cir. 2006); Davis v. Fulton County, 90 F.3d 1346 (8th Cir. 1996). See also Commonwealth Bank & Trust Co. v. Russell, 825 F.2d 12 (3d Cir. 1987) (same outcome before DeShaney). It is not possible to say that a constitutional obligation to keep a prisoner under control has been “clearly established” when every appellate court that has addressed the question has held that the proposed obligation does not exist.
Because “clearly established” law does not support the §1983 claim against Loomis, we need not decide whether we agree with these decisions. See Pearson v. Callahan, 555 U.S. 223, 231–43 (2009). But it is apt to add that we also have not approvеd the district court‘s view that the complaint states a good constitutional claim. Plaintiffs allege that Loomis was incompetent, but the Due Process Clause generally does not condemn official nеgligence. See Daniels v. Williams, 474 U.S. 327 (1986). Plaintiffs depict themselves as frightened but not otherwise injured, and, even in the law of torts, negligent actors are not liable for conduct that threatens bodily harm but produces only emotional distress. Restatement (Second) of Torts §436A (1965). And then there is DeShaney.
In recent years the “state-created danger exception” has been treated as if it were a rule of common law. It has been elaborated and turned into a “three-part test“:
First, the state, by its affirmative acts, must create or increase a danger faced by an individual. Second, the failure on the part of the state to protect an individual from such a danger must be the proximate cause of the injury to the individual. Third, the state‘s failure to protect the individual must shock the conscience.
Johnson v. Rimmer, No. 18-1321 (7th Cir. Aug. 30, 2019), slip op. 23, quoting from King v. East St. Louis School District, 496 F.3d 812, 817–18 (7th Cir. 2007) (internal citations and quotation marks deletеd). None of these elements has its provenance in DeShaney.
Other circuits have their own approaches. Estate of Romain v. Grosse Pointe Farms, 2019 U.S. App. LEXIS 24164 (6th Cir. Aug. 14, 2019), discusses the “three-part test” (with parts different from those of Johnson and King) that the Sixth Circuit uses to evaluate claims of state-created danger. Judge Murphy filed a concurring opinion, 2019 U.S. App. LEXIS 24164 at *14–23, questioning whether the Sixth Circuit‘s approach can be reconciled with DeShaney and suggesting that it be refocused on the question whether the state has impairеd the plaintiff‘s powers of self-help or ability to obtain help from others. All three members of the panel joined this opinion, making it an alternate majority opinion.
Estate of Romain did not need to decide whether thе Sixth Circuit‘s approach should be revised, just as we do not need to decide whether Johnson and King are compatible with Paine, Reed, and DeShaney. These subjects should be presented for consideration in some future case, when the outcome may turn on the diffеrence. For now, it is enough to say that even if Loomis is civilly and criminally liable as a matter of Illinois law, he is entitled to qualified immunity from a claim based on the federal Constitution, so the district court‘s decision is
REVERSED.