Case Information

Peter Clayton MCCLENDON, Plaintiff-Appellant, v. CITY OF COLUMBIA; et al., Defendants, City of Columbia; James R. Carney, Defendants-Appellees.

No. 00-60256.

United States Court of Appeals, Fifth Circuit.

Sept. 5, 2002.

305 F.3d 314

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, DENNIS and CLEMENT, Circuit Judges.

torney General. United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir. 1996).

In Trevino-Martinez, the defendant obtained a nonimmigrant visa from the American consulate in Monterrey but failed to obtain the consent of the Attorney General. On appeal from his conviction under 8 U.S.C. § 1326, the defendant argued that the visa issued by the consular acted as a "proxy for the consent of the Attorney General" under 8 C.F.R § 212.2(b)(2). Id. at 67. In rejecting this argument, this court stated:

Typically, an alien obtains such consent by securing a written authorization from the Immigration and Naturalization Service ("INS") permitting him to reenter this country. Importantly, however, this authorization may be issued only by the Attorney General or the INS; under the statute, the American consulate is powerless to grant such an authorization. 8 C.F.R. §§ 212.2(b)(2), 212.4(c). Id. at 68 (emphasis added).

Finally, Sanchez asserts that he proved that he submitted the Application which may still be awaiting processing. However, the fact that Sanchez filed an Application does not provide him with a defense. The Application without more is not relevant to whether the Attorney General's consent was granted. United States v. Robles-Mendiola, 215 F.3d 1323 (4th Cir. 2000) (unpublished) (finding that a Form I-212 was properly excluded because it was not probative of the express consent required by section 1326 because the Attorney General never acted upon the form). The salient issue is whether the Attorney General approved the Application, not whether it was filed. Here, the Government has proved with substantial evidence that the Attorney General did not approve the Application.

III.

For the reasons explained above, the Government produced sufficient evidence that the Attorney General did not consent to Sanchez's application for reentry of the country. Accordingly, the judgment of the district court is AFFIRMED.

Kathryn Neal Nester (argued), Christopher & Nester, Ridgeland, MS, for Plaintiff-Appellant.

Thomas D. McNeese, Lawrence Elder Hahn, McNeese & Hahn, Columbia, MS, for City of Columbia.

Sandra Schuffert Mohler (argued), Jon Mark Weathers, Bryan, Nelson, Randolph & Weathers, Hattiesburg, MS, for Carney.

Ramon Gustave Viada, III, Abrams, Scott & Bickley, Houston, TX, for Texas Municipal League, Texas City Attorneys Ass'n, Texas Ass'n of School Boards Legal Assistance Fund, Texas Ass'n of School Boards, Texas Ass'n of School Administrators and Texas Council of School Attorneys, Amici Curiae.

PER CURIAM:**

In July 1993, Defendant-Appellee Detective James Carney, a City of Columbia police detective, loaned a gun to Kevin Loftin, an informant for the Columbia Police Department, to enable Loftin to protect himself from Plaintiff-Appellant Peter McClendon. Loftin subsequently used the gun to shoot McClendon. A panel of this court held that Detective Carney thereby violated McClendon's substantive due process rights and that the unconstitutionality of Detective Carney's conduct was clearly established at the time of his actions. See McClendon v. City of Columbia, 258 F.3d 432, 441-43 (5th Cir. 2001), vacated and reh'g en banc granted, 285 F.3d 1078 (5th Cir. 2002). We took this case en banc to determine whether the panel's conclusions were correct. En banc review is also warranted to resolve conflicting panel decisions addressing when a principle of law should be deemed "clearly established" in the context of qualified immunity analysis. Because under the facts established by the summary judgment record, viewed in the light most favorable to McClendon, there is no constitutional violation, we find that Detective Carney is entitled to qualified immunity. We further find, in the alternative, that even if those facts did establish a constitutional violation under current law, Detective Carney is nonetheless entitled to qualified immunity because his conduct was not objectively unreasonable in light of the law that was clearly established at the time of his actions. Accordingly, we AFFIRM the district court's summary judgment in favor of Detective Carney on qualified immunity grounds. In addition, we AFFIRM the district court's summary judgment in favor of Defendant-Appellee the City of Columbia, reinstating the portion of the panel opinion addressing this aspect of the district court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because the district court awarded summary judgment to the Defendants-Appellees, we view the facts in the light most favorable to Plaintiff-Appellant Peter McClendon. See Stults v. Conoco, Inc., 76 F.3d 651, 654 (5th Cir. 1996). Between May of 1992 and December of 1993, Defendant-Appellee Detective James Carney ("Detective Carney") paid Kelvin Loftin to serve as an informant for the Columbia Police Department (the "CPD"). Loftin assisted Detective Carney and the CPD with drug enforcement investigations. During the week prior to July 12, 1993, Loftin spoke to Detective Carney about a conflict that had developed between Loftin and McClendon. Specifically, Loftin feared that McClendon might retaliate against Loftin for supplying a gun to an individual who subsequently shot McClendon's friend. Loftin told Detective Carney that McClendon was "fixing to try [Loftin]," and that the situation between the two men was at a "boiling point." Upon hearing about the situation, Detective Carney loaned Loftin a handgun so that Loftin could protect himself from McClendon. This handgun, which Detective Carney retrieved from his desk drawer, was apparently seized by the CPD as evidence in an unrelated investigation.

On the evening of July 12, 1993, McClendon and Loftin encountered each other (apparently by chance) at the Hendrix Street Apartments, where Loftin was staying. An altercation ensued, and Loftin shot McClendon in the face with the handgun that Loftin had obtained from Detective Carney. McClendon is now permanently blind as a result of the incident.

On July 11, 1996, McClendon filed the instant 42 U.S.C. § 1983 action in federal district court against Detective Carney, the CPD, the City of Columbia ("the City"), City of Columbia Mayor Harold Bryant ("Mayor Bryant"), and CPD Chief of Police Joe Sanders ("Chief Sanders") (collectively, "the Defendants").1 The complaint alleges that the Defendants violated McClendon's due process rights under the Fourteenth Amendment by knowingly and affirmatively creating a dangerous situation that resulted in injury to McClendon and by failing to take reasonable steps to diffuse this danger.2 Regarding Detective Carney, the complaint specifically contends that in providing Loftin with a handgun, Detective Carney "created a serious danger" that "caused Peter McClendon harm and violated McClendon's due process rights." Regarding the City, the complaint further alleges: (1) that the City had a custom or practice of allowing unabated access to evidence and evidence storage areas, which custom or practice proximately caused McClendon's injury by allowing Detective Carney to provide Loftin with the handgun used in the assault; and (2) that the City's failure to train Detective Carney regarding the use of informants displayed deliberate indifference to McClendon's rights and proximately caused McClendon's injury.

On December 31, 1998, Detective Carney moved for summary judgment, arguing that he did not violate McClendon's constitutional rights because his actions did not create the danger which resulted in McClendon's injuries. Detective Carney alternatively argued that he was entitled to qualified immunity from the suit because the unlawfulness of his actions was not clearly established as of July 12, 1993.

On April 20, 1999, the district court granted summary judgment to Detective Carney, holding that McClendon had not stated a viable constitutional claim. The court rejected McClendon's attempt to seek recovery from the state for injuries inflicted by a private actor under a "state-created danger" theory, explaining that the Fifth Circuit had not sanctioned such a theory of substantive due process liability. The court also found that, even if McClendon could maintain a viable constitutional claim based on a state-created danger theory, this claim would fail because Detective Carney "did not affirmatively place McClendon in a position of danger, stripping him of his ability to defend himself, and he did not cut off McClendon's potential sources of private aid." In the alternative, the district court determined that Detective Carney was entitled to qualified immunity from suit because his conduct was "objectively reasonable under the circumstances in light of clearly established law" in July of 1993.

McClendon attempted to appeal from this April 20, 1999 order, but this appeal was dismissed because McClendon's claims against the City had not yet been adjudicated. The City subsequently obtained permission from the district court to file a motion for summary judgment out of time. The City filed this motion on November 2, 1999, arguing that McClendon had not shown a city policy or custom that produced his injury and had not shown that the City acted with deliberate indifference to his safety. On March 6, 2000, the district court granted summary judgment to the City, finding: (1) that McClendon had not pled the facts of his "dangerous custom or practice" claim with sufficient particularity and, alternatively, had not demonstrated a custom or practice (as opposed to an isolated incident) that resulted in a deprivation of federal rights; and (2) that McClendon had not properly established the elements of an "inadequate training" claim under Gabriel v. City of Plano because he failed to provide proof of "the possibility of recurring situations that present an obvious potential for violation of constitutional rights and the need for additional or different police training." Gabriel, 202 F.3d 741, 745 (5th Cir. 2000).

McClendon appealed the district court's summary judgments in favor of Detective Carney and the City. A panel of this court affirmed the summary judgment in favor of the City,3 but reversed the summary judgment in favor of Detective Carney, finding that McClendon could state a viable substantive due process claim if Detective Carney used his authority to engage in affirmative conduct (1) that he knew would create a danger to McClendon, increase a danger to McClendon, or make McClendon more vulnerable to a pre-existing danger, and (2) that was causally connected to McClendon's injuries. See McClendon, 258 F.3d at 435, 438. The panel determined that McClendon had adduced sufficient evidence to create a genuine issue of material fact suggesting that Detective Carney had violated McClendon's constitutional rights.

The panel acknowledged that Detective Carney would nonetheless be entitled to qualified immunity if his conduct was objectively reasonable in light of the law that was clearly established at the time of his actions. Id. at 438. The panel also implicitly acknowledged that neither the Supreme Court nor this court had expressly sanctioned any "state-created danger" theory as of July 1993, when the relevant events took place. Id. at 435, 438. However, the panel found that this court's discussion of the state-created danger theory in Salas v. Carpenter, 980 F.2d 299, 309-10 (5th Cir. 1992), combined with (1) the fact that several circuits had explicitly adopted the state-created danger theory prior to 1993, and (2) the fact that no circuit had explicitly rejected the state-created danger theory prior to 1993, was sufficient to render that theory "clearly established" in July of 1993.4 Concluding that clearly established law put Detective Carney on notice that "a state actor creating a danger, knowing of that danger, and using his authority to create an opportunity for a third person to commit a crime that otherwise might not have existed was subject to liability for a violation of the victim's rights" resulting from that danger, the panel found that Detective Carney's actions were unreasonable in light of clearly established law, and that he was not entitled to qualified immunity. McClendon, 258 F.3d at 441.

To assess the correctness of the panel's holdings and to resolve the conflict in our circuit authority addressing what constitutes "clearly established law" for the purposes of qualified immunity analysis, we granted Carney's request to rehear the case en banc. We review the district court's grant of summary judgment in favor of Detective Carney de novo, applying the same standard as the district court. See Rivers v. Cent. & S.W. Corp., 186 F.3d 681, 683 (5th Cir. 1999). Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c).

II. THE QUALIFIED IMMUNITY FRAMEWORK

Section 1983 provides a cause of action for individuals who have been "depriv[ed] of any rights, privileges, or immunities secured by the Constitution and laws" of the United States by a person or entity acting under color of state law. 42 U.S.C. § 1983 (1994). In the instant case, McClendon claims that Detective Carney violated McClendon's right to bodily integrity under the substantive component of the Due Process Clause of the Fourteenth Amendment because Carney's affirmative misconduct enhanced the risk of harm to McClendon.5 Specifically, McClendon argues: (1) that Detective Carney knowingly and affirmatively created a dangerous situation by providing Loftin with a gun; (2) that Detective Carney failed to take any reasonable steps to diffuse the danger; and (3) that Detective Carney abused his authority by creating an opportunity for Loftin to harm McClendon that would not otherwise have existed.

Detective Carney maintains that he is entitled to summary judgment because he is shielded from liability by the doctrine of qualified immunity. In Harlow v. Fitzgerald, the Supreme Court established that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. 800, 818 (1982). The Court subsequently clarified in Siegert v. Gilley, 500 U.S. 226, 232-34 (1991) that courts evaluating § 1983 claims based on allegedly unconstitutional conduct by state actors should conduct a two-prong inquiry to determine whether the state actors are entitled to qualified immunity. "[T]he first inquiry must be whether a constitutional right would have been violated on the facts alleged." Saucier v. Katz, 533 U.S. 194, 200 (2001). "[I]f a violation could be made out on a favorable view of the parties' submissions, the next sequential step is to ask whether the right was clearly established." Id. at 201. Ultimately, a state actor is entitled to qualified immunity if his or her conduct was objectively reasonable in light of the legal rules that were clearly established at the time of his or her actions. See Wilson v. Layne, 526 U.S. 603, 614 (1999) (citing Anderson v. Creighton, 483 U.S. 635, 639 (1987)).

When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense. See Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001). Because qualified immunity constitutes an "immunity from suit rather than a mere defense to liability," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original), the defense is intended to give government officials a right not merely to avoid standing trial, but also to avoid the burdens of "such pretrial matters as discovery... as '[i]nquiries of this kind can be peculiarly disruptive of effective government.'" Id. (quoting Harlow, 457 U.S. at 817) (alterations in original). Thus, adjudication of qualified immunity claims should occur "at the earliest possible stage in litigation." Hunter v. Bryant, 502 U.S. 224, 227 (1991). However, "the legally relevant factors bearing upon the Harlow question will be different on summary judgment than on an earlier motion to dismiss." Behrens v. Pelletier, 516 U.S. 299, 309 (1996). At the earlier stage, "it is the defendant's conduct as alleged in the complaint that is scrutinized for 'objective legal reasonableness.'" Id. "On summary judgment, however, the plaintiff can no longer rest on the pleadings and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the Harlow inquiry." Id.

In the instant case, Detective Carney raised the defense of qualified immunity in a motion for summary judgment after significant discovery. Accordingly, this court's task is to examine the summary judgment record and determine whether McClendon has adduced sufficient evidence to raise a genuine issue of material fact suggesting (1) that Detective Carney's conduct violated an actual constitutional right; and (2) that Detective Carney's conduct was objectively unreasonable in light of law that was clearly established at the time of his actions.

III. DID DETECTIVE CARNEY'S CONDUCT VIOLATE AN ACTUAL CONSTITUTIONAL RIGHT?

In assessing whether the facts alleged demonstrate a constitutional violation, we analyze the law using "the currently applicable standards." Hare v. City of Corinth, 135 F.3d 320, 326 (5th Cir. 1998) (quoting Rankin v. Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993)) (internal quotations omitted). McClendon claims that Detective Carney violated McClendon's right to bodily integrity under the substantive component of the Due Process Clause of the Fourteenth Amendment. While McClendon does not allege that Detective Carney directly injured McClendon in any way, McClendon maintains that Detective Carney's actions were nonetheless unconstitutional because Carney's conduct enhanced the risk that McClendon would be harmed by a private actor (i.e., Loftin).

Ordinarily, a state official has no constitutional duty to protect an individual from private violence. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989) (holding that, as a general matter, a state's "failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause"). In DeShaney, however, the Court clarified that this general rule is not absolute: "in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." Id. at 198. When the state, through the affirmative exercise of its powers, acts to restrain an individual's freedom to act on his own behalf "through incarceration, institutionalization, or other similar restraint of personal liberty," the state creates a "special relationship" between the individual and the state which imposes upon the state a constitutional duty to protect that individual from dangers, including, in certain circumstances, private violence. Id. at 200.

A number of courts have read the Court's opinion in DeShaney to suggest a second exception to the general rule against state liability for private violence. DeShaney involved a § 1983 action brought on behalf of a child against state social workers. The child, who suffered serious injuries as a result of parental abuse, alleged that the social workers had violated his substantive due process rights because they were aware of the probability of abuse and failed to intervene to protect him or remove him from his father's home. Id. at 191. In rejecting this claim on the ground that there was no "special relationship" between the child and the state, the Supreme Court also noted that, "[w]hile the State may have been aware of the dangers that [the child] 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 (emphasis added). Many of our sister circuits have read this language to suggest that state officials can have a duty to protect an individual from injuries inflicted by a third party if the state actor played an affirmative role in creating or exacerbating a dangerous situation that led to the individual's injury. Those courts accepting some version of this "state-created danger" theory have applied the exception in a variety of factual contexts,6 and have adopted a variety of tests in expounding the theory.7 While this court has recognized the validity of the "special relationship" exception to the general DeShaney rule that state officials have no constitutional duty to protect individuals from private violence, see, e.g., Walton v. Alexander, 44 F.3d 1297, 1299 (5th Cir. 1995), we have not yet determined whether a state official has a similar duty to protect individuals from state-created dangers, see, e.g., Piotrowski v. City of Houston, 237 F.3d 567, 584 (5th Cir. 2001) ("Piotrowski II") (noting that this court has never adopted the state-created danger theory); Randolph v. Cervantes, 130 F.3d 727, 731 (5th Cir. 1997) (same).

Regardless of the theory of liability that a plaintiff is pursuing, in order to state a viable substantive due process claim the plaintiff must demonstrate that the state official acted with culpability beyond mere negligence. The Supreme Court's discussions of abusive executive action have repeatedly emphasized that "only the most egregious official conduct can be said to be arbitrary in the constitutional sense." County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992)). The Court has "spoken of the cognizable level of executive abuse of power as that which shocks the conscience." Id. In elaborating on "the constitutional concept of conscience shocking," the Court has "made it clear that the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm." Id. at 848. "[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process." Id.

Consistent with these principles, courts applying both the "special relationship" exception to the DeShaney rule and the "state-created danger" exception to the DeShaney rule have generally required plaintiffs to demonstrate (or, at the motion-to-dismiss stage, to allege) that the defendant state official at a minimum acted with deliberate indifference toward the plaintiff. See, e.g., Butera v. District of Columbia, 235 F.3d 637, 652 (D.C. Cir. 2001) (state-created danger); Nicini v. Morra, 212 F.3d 798, 810 (3rd Cir. 2000) (special relationship); Huffman v. County of Los Angeles, 147 F.3d 1054, 1059 (9th Cir. 1998) (state-created danger).

Our examination of the summary judgment record reveals (in accordance with the conclusion of the district court) that McClendon has not adduced any evidence suggesting that Detective Carney acted with anything other than ordinary negligence in the instant case. While Detective Carney was informed that McClendon potentially posed a threat to Loftin's safety, there is no indication that Detective Carney was aware that Loftin had any violent intentions toward McClendon. Indeed, Loftin had no criminal history and had a longstanding, positive working relationship with Detective Carney as a confidential informant. Moreover, given that Detective Carney had no reason to anticipate that Loftin and McClendon would have a chance encounter at the Hendrix Street Apartments, Detective Carney could not have predicted that Loftin would have the opportunity to assault McClendon with the gun that Detective Carney loaned Loftin for self-protection. Thus, while Detective Carney's actions in providing Loftin with a gun were certainly inadvisable, there is no evidence in the record suggesting that he acted with knowledge that his conduct would pose a threat to McClendon's safety.8 Under these circumstances, no rational trier of fact could find that Detective Carney acted with any level of culpability beyond mere negligence.

Thus, under the facts established by the summary judgment record, viewed in the light most favorable to McClendon, there is no violation by Detective Carney of McClendon's substantive due process rights. Negligent infliction of harm by a state actor does not rise to the level of a substantive due process violation, regardless of whether the plaintiff's injury was inflicted directly by a state actor or by a third party. Because the facts alleged by McClendon, as supplemented by the summary judgment record, do not demonstrate the violation of an actual constitutional right, Detective Carney is entitled to summary judgment on grounds of qualified immunity.

IV. WAS DETECTIVE CARNEY'S CONDUCT OBJECTIVELY UNREASONABLE IN LIGHT OF CLEARLY ESTABLISHED LAW?

Even if we were to find, contrary to our above conclusion, that McClendon had established a viable constitutional claim under current law, summary judgment in favor of Detective Carney on grounds of qualified immunity is nonetheless appropriate because Detective Carney's conduct was not objectively unreasonable in light of clearly established law at the time of his actions.9

As noted above, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson, 526 U.S. at 614 (quoting Harlow, 457 U.S. at 818). "What this means in practice is that whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful action generally turns on the 'objective legal reasonableness' of the official's action, assessed in light of the legal rules that were 'clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639 (1987).

McClendon concedes that, at the time of Detective Carney's allegedly unlawful conduct in July of 1993, neither the Supreme Court nor this court had expressly adopted the "state-created danger" theory of substantive due process liability.10 Indeed, as noted above, neither this court nor the Supreme Court has yet determined whether a citizen has a constitutional right to be free from state-created dangers. However, McClendon contends that the viability of the state-created danger theory was clearly established law in July of 1993 because this court had discussed the theory favorably in Salas v. Carpenter, 980 F.2d 299, 309 (5th Cir. 1992), and because a number of other federal circuits had expressly adopted the theory. In support of this argument, McClendon relies on Melear v. Spears, 862 F.2d 1177 (5th Cir. 1989), in which a panel of this court indicated that it is sometimes appropriate to look outside Fifth Circuit and Supreme Court precedent in determining what constitutes clearly established law. The Melear court reasoned:

As a general proposition, we will not rigidly define the applicable body of law in determining whether relevant legal rules were clearly established at the time of the conduct at issue. Relying solely on Fifth Circuit and Supreme Court cases, for example, would be excessively formalistic, but they will loom largest in our inquiries. In determining what the relevant law is, then, a court must necessarily exercise some discretion in determining the relevance of particular law under the facts and circumstances of each case, looking at such factors as the overall weight of authority, and the status of the courts that render substantively relevant decisions, as well as the jurisdiction of the courts that render substantively relevant decisions.

Id. at 1185 n.8 (internal citations omitted).

Detective Carney, in contrast, maintains that this court must be guided exclusively by Fifth Circuit and Supreme Court authority in assessing whether the state-created danger theory was clearly established law in July of 1993. In support of this contention, he points to Shipp v. McMahon, in which a panel of this court found that "in determining whether a right is clearly established, we are confined to precedent from our circuit or the Supreme Court." 234 F.3d 907, 915 (5th Cir. 2000). Detective Carney accordingly contends that he is entitled to qualified immunity because the state-created danger theory was not clearly established in this circuit in July of 1993.

To resolve this apparent conflict between Melear and Shipp, we look to the Supreme Court's qualified immunity cases addressing what constitutes clearly established law. The most directly applicable authority is the Court's recent decision in Wilson v. Layne, 526 U.S. 603 (1999). Wilson involved § 1983 actions and actions brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), by homeowners alleging that state and federal law enforcement officers violated the homeowners' Fourth Amendment rights by bringing members of the media into their home to observe and record the officers' attempted execution of an arrest warrant on the homeowners' son. The Fourth Circuit held that the officers were shielded from liability by the doctrine of qualified immunity. See Wilson v. Layne, 141 F.3d 111, 115-17 (4th Cir. 1998). On writ of certiorari, the Supreme Court initially concluded that the officers' actions violated the plaintiffs' Fourth Amendment rights under current law. See 526 U.S. at 614. The Court then went on to consider whether a reasonable officer could have believed that bringing members of the media into a private home during the execution of an arrest warrant was lawful in light of clearly established law in April of 1992. While conceding that there was no directly controlling Fourth Circuit or Supreme Court authority establishing the illegality of such conduct, the plaintiffs pointed to a decision issued five weeks prior to the officers' actions in which the Sixth Circuit held that police may not bring along third parties during an entry into a private home pursuant to a warrant for purposes unrelated to those justifying the warrant. See Bills v. Aseltine, 958 F.2d 697 (6th Cir. 1992). The plaintiffs contended that this decision was persuasive authority sufficient to clearly establish the unlawfulness of the officers' conduct.

The Supreme Court rejected this argument and held that the officers were entitled to qualified immunity, finding that "the law on third-party entry into homes was [not] clearly established in April 1992." Wilson, 526 U.S. at 617. The Court reasoned:

Petitioners have not brought to our attention any cases of controlling authority in their jurisdiction at the time of the incident which clearly established the rule on which they seek to rely, nor have they identified a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.

Id. (emphasis added).11

This language in Wilson clearly suggests that, in the absence of directly controlling authority, a "consensus of cases of persuasive authority" might, under some circumstances, be sufficient to compel the conclusion that no reasonable officer could have believed that his or her actions were lawful. See also Medina v. City & County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) ("Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains."); Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985) ("[I]n the absence of binding precedent, a court should look to whatever decisional law is available to ascertain whether the law is clearly established...."). Because the Supreme Court's method of analysis in Wilson is inconsistent with the rule predicated in Shipp, Shipp's statement that "we are confined to precedent from our circuit or the Supreme Court" in analyzing whether a right is clearly established for the purposes of qualified immunity analysis, see 234 F.3d at 915, is overruled.

In light of Wilson, we must consider both this court's treatment of the state-created danger theory and status of this theory in our sister circuits in assessing whether a reasonable officer would have known at the time of Detective Carney's actions that his conduct was unlawful. As the Supreme Court recently explained in Hope v. Pelzer, 536 U.S. 730 (2002), "qualified immunity operates to ensure that before they are subjected to suit, officers are on notice that their conduct is unlawful." Id. at 739 (quoting Saucier, 533 U.S. at 206). Thus, the "salient question" under the second prong of the Siegert test is "whether the state of the law at the time of the state action gave [the state actors] fair warning that their alleged treatment of the plaintiff was unconstitutional." Roe v. Tex. Dep't of Protective & Regulatory Servs., 299 F.3d 395, 408-09 (5th Cir. 2002) (quoting Hope, 536 U.S. at 741).

Prior to July of 1993, this court had only once considered a civil rights claim premised on a "state-created danger" theory. In Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992), this court considered a § 1983 suit brought by the estate of a slain hostage against the county sheriff who commanded the hostage rescue efforts. The victim claimed that the county sheriff deprived her of her life by preventing city officials from coming to her aid, using incompetent hostage negotiators, and failing to provide adequate weapons and communication equipment to handle the hostage situation. We found that the sheriff was entitled to qualified immunity from suit.

In considering the victim's claim, we recognized that some of our sister circuits had found "a denial of due process when the state creates the... dangers" faced by an individual, id. at 309 (citing Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (en banc); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989); White v. Rochford, 592 F.2d 381 (7th Cir. 1979)), and that at least one court had further found 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. (citing Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990)). However, we did not sanction these courts' analyses. Instead, we merely noted that the facts underlying these decisions were distinguishable from the situation facing the sheriff in Salas. Unlike the state officials at issue in Wood, White, and Grubbs, the sheriff "did not worsen [the victim's] position and abandon her to allow events to run their course." Id. Determining that no court had found a state official constitutionally liable on a state-created danger theory in a situation sufficiently analogous to the facts at hand, we concluded that the sheriff was entitled to qualified immunity because the Salas plaintiffs had failed to state a cognizable constitutional claim.

As we have recognized on numerous subsequent occasions, our decision in Salas did not address the viability of the state-created danger theory or define the contours of an individual's right to be free from state-created dangers. See, e.g., Piotrowski v. City of Houston, 51 F.3d 512, 515 (5th Cir. 1995) ("Piotrowski I"); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 530-31 (5th Cir. 1994). Salas simply held that, even under the most expansive articulations of the state-created danger doctrine sanctioned by other courts at that time, the plaintiffs had not stated a cognizable claim. This discussion in Salas would not have provided a reasonable officer with "fair warning" that creating or increasing a danger to a known victim with deliberate indifference towards that victim violates the victim's substantive due process rights. Furthermore, our Salas decision was certainly insufficient to provide a reasonable officer with "fair warning" that Detective Carney's particular actions in loaning Loftin a gun would violate McClendon's substantive due process rights.

Turning to the law of our sister circuits, we note that six circuits had sanctioned some version of the state-created danger theory in July of 1993, at the time of Detective Carney's allegedly unlawful actions. See, e.g., Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993); Freeman, 911 F.2d at 54-55; Wood, 879 F.2d at 596; Cornelius, 880 F.2d at 359; Nishiyama v. Dickson County, Tenn., 814 F.2d 277, 282 (6th Cir. 1987), (overruled on other grounds by Lewellen v. Metro. Gov't of Nashville, 34 F.3d 345, 349 (6th Cir. 1994)); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982). Moreover, as McClendon correctly points out, no circuit had explicitly rejected the state-created danger theory in July of 1993. While both of these factors are relevant to our determination whether there was a "consensus of cases of persuasive authority" sufficient to provide Detective Carney with "fair warning" that his acts were unlawful, the mere fact that a large number of courts had recognized the existence of a right to be free from state-created danger in some circumstances as of July 1993 is insufficient to clearly establish the unlawfulness of Detective Carney's actions.

The Supreme Court has recognized on numerous occasions that the operation of the "clearly established" standard depends substantially upon the level of generality at which the relevant legal rule is defined. See, e.g., Wilson, 526 U.S. at 614-15; Anderson, 483 U.S. at 640. As the Anderson Court explained:

[T]he right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right. Much the same could be said of any other constitutional or statutory violation. But if the test of "clearly established law" were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of [the qualified immunity analysis].... It should not be surprising, therefore, that our cases establish that the right the official is alleged to have violated must have been "clearly established" in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.

Anderson, 483 U.S. at 640; accord Wilson, 526 U.S. at 614-15. As Anderson and Wilson make clear, assessing the "objective legal reasonableness" of an officer's actions in light of clearly established law requires a court to consider not only whether courts have recognized the existence of a particular constitutional right, but also on whether that right has been defined with sufficient clarity to enable a reasonable official to assess the lawfulness of his conduct. See also Hope, 536 U.S. at 741. Accordingly, in the instant case we must assess whether those cases from our sister circuits recognizing the existence of a substantive due process right to be free from state-created danger established the contours of that right with sufficient clarity to provide a reasonable officer in Detective Carney's position with fair warning that providing Loftin with a gun would violate McClendon's rights.

Those courts sanctioning some version of the state-created danger theory prior to 1993 might fairly be characterized, at a high level of generality, to be in agreement about the existence of a substantive due process right to be free from state-created danger. However, these courts were not in agreement as to the specific nature of that right. For example, these courts apparently disagreed as to the appropriate mental state required to hold a state actor liable for harms inflicted by third parties. While most courts agreed that something more than "mere negligence" was required to support liability, the Ninth Circuit apparently favored a "deliberate indifference" standard, see Grubbs, 974 F.2d at 122-23, the Sixth Circuit used a slightly different "gross negligence" test, see Nishiyama, 814 F.2d at 282, and the Second Circuit hinted that intent to injure might be required, see Dwares, 985 F.2d at 99. In addition, even those courts accepting the theoretical validity of the state-created danger doctrine admitted uncertainty as to its contours. See, e.g., Freeman, 911 F.2d at 55 (noting that "[i]t is not clear, under DeShaney, how large a role the state must play in the creation of danger and in the creation of vulnerability before it assumes a constitutional duty to protect"). Thus, while a number of our sister circuits had accepted some version of the state-created danger theory as of July of 1993, given the inconsistencies and uncertainties within this alleged consensus of authorities, an officer acting within the jurisdiction of this court could not possibly have assessed whether his or her conduct violated this right in the absence of explicit guidance from this court or the Supreme Court.12 Accord Butera, 235 F.3d at 653 (concluding that "as of 1997, the 'contours' of the rights created by the State endangerment concept were not settled among the circuits").

In addition, it is significant that no court in 1993 had applied the state-created danger theory to a factual context similar to that of the instant case. As the Hope Court recently emphasized, state officials can still be on notice that their conduct violates established law, even in novel factual circumstances. Hope, 536 U.S. at 741. The "clearly established" prong of the qualified immunity inquiry does not require that "the very action in question [must have] previously been held unlawful." Anderson, 483 U.S. at 640. Nonetheless, the unlawfulness of the state official's actions "must be apparent" in light of pre-existing law to preclude the official from invoking qualified immunity. Id.

In the circumstances of the instant case, we cannot say that the unlawfulness of Detective Carney's particular actions should have been apparent to him in light of clearly established law in July of 1993. The relatively few pre-1993 state-created danger cases that were brought against law enforcement officers (as opposed to child welfare officials or hospital officials) generally involved police officers who had deliberately ignored an individual's pleas for assistance, see, e.g., Dwares, 985 F.2d at 96-97; Freeman, 911 F.2d at 53-54, or abandoned an individual in a dangerous situation, see, e.g., Gregory, 974 F.2d at 1007-09; Wood, 879 F.2d at 586. None of these pre-1993 cases involved an officer whose alleged actions heightened a third party's ability to act in a dangerous manner, as in the instant case. The fact that the state-created danger theory was recognized at a general level in these precedents did not necessarily provide Officer Carney with notice that his specific actions created such a danger. While "general statements of the law are not inherently incapable of giving fair and clear warning," Hope, 536 U.S. at 741 (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)), this is not a situation where "a general constitutional rule already identified in the decisional law... appl[ied] with obvious clarity to the specific conduct in question." Id. (quoting Lanier, 520 U.S. at 271).13 In such circumstances, qualified immunity should be granted "if a reasonable official would be left uncertain of the law's application to the facts confronting him." Salas, 980 F.2d at 311 (citing Hopkins v. Stice, 916 F.2d 1029, 1031 (5th Cir. 1990)).

In summary, even if a "consensus" of circuits had adopted some version of the state-created danger theory in July of 1993, this consensus did not at that time establish the contours of an individual's right to be free from state-created danger with sufficient clarity to provide Detective Carney with fair warning that his conduct violated that right. Accordingly, Detective Carney is entitled to qualified immunity from McClendon's § 1983 action.

V. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's summary judgment in favor of Detective Carney. We also AFFIRM the district court's summary judgment in favor of the City.

E. GRADY JOLLY

Circuit Judge, concurring

EDITH H. JONES

Circuit Judge, joined by RHESA HAWKINS BARKSDALE, Circuit Judge, concurring

EMILIO M. GARZA

Circuit Judge, concurring in the judgment only

ROBERT M. PARKER

Circuit Judge, joined by WIENER and DeMOSS, Circuit Judges, dissenting

Footnotes

* This opinion is joined by Chief Judge King and Circuit Judges Jolly, Higginbotham, Davis, Jones, Smith, Barksdale, Benavides, Stewart, Dennis and Clement.

1 Detective Carney, Mayor Bryant, and Chief Sanders were sued in both their individual and official capacities.

2 The CPD, Mayor Bryant, and Chief Sanders were subsequently voluntarily dismissed as defendants.

3 Because the portion of the panel opinion affirming summary judgment in favor of the City is soundly reasoned and does not implicate the same unsettled questions of law as the portions of that opinion addressing the claims against Detective Carney, we REINSTATE that portion of the panel opinion affirming summary judgment in favor of the City. See McClendon v. City of Columbia, 258 F.3d 432, 441-43 (5th Cir. 2001).

4 Relying on Melear v. Spears, the panel explained that this court is not limited to examining only its own precedent and Supreme Court precedent in determining whether a principle of law was clearly established. See 862 F.2d 1177, 1184 n. 8 (5th Cir. 1989) ("As a general proposition, we will not rigidly define the applicable body of law in determining whether relevant legal rules were clearly established at the time of the conduct at issue. Relying solely on Fifth Circuit and Supreme Court cases, for example, would be excessively formalistic, but they will loom largest in our inquiries.") (internal citation omitted). Thus, the panel found that a theory not explicitly adopted by this court could nonetheless constitute clearly established law based on "overwhelming authority" from other circuits at the time in question. This discussion in Melear is in tension with our subsequent decision in Shipp v. McMahon, which holds that this court's inquiry into whether a principle of law was clearly established is "confined to precedent from our circuit or the Supreme Court." 234 F.3d 907, 915 (5th Cir. 2000) (citing Boddie v. City of Columbus, 989 F.2d 745, 748 (5th Cir. 1993)).

5 This substantive component of the Fourteenth Amendment's Due Process Clause "'protects individual liberty against "certain government actions regardless of the fairness of the procedures used to implement them."'" Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). This court has recognized a substantive due process right to be free from state-occasioned damage to a person's bodily integrity in certain contexts. See, e.g., Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 450-51 (5th Cir. 1994) (en banc).

6 See, e.g., Butera v. District of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001) (adopting the state-created danger theory, but rejecting a § 1983 claim brought against a police department and individual officers on behalf of an individual who was shot while working as an undercover operative for the department); Kallstrom v. City of Columbus, 136 F.3d 1055, 1066-67 (6th Cir. 1998) (adopting the state-created danger theory in the context of a § 1983 claim brought by undercover police officers alleging that city officials released personal information from their personnel files to the drug conspirators that the officers were investigating); Kneipp v. Tedder, 95 F.3d 1199, 1201, 1208 (3d Cir. 1996) (adopting the state-created danger theory in the context of a § 1983 claim brought against a city and police officers on behalf of a woman who suffered brain damage when the officers allegedly left her alone to walk home on a cold night while she was intoxicated); Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995) (accepting the state-created danger theory, but rejecting a § 1983 claim brought against state mental health officials on behalf of an activity therapist who was killed by a mental hospital patient); Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993) (adopting the state-created danger theory in the context of a § 1983 claim brought by motorists who were injured in an automobile collision with an allegedly drunk driver against police officers who had previously failed to arrest the driver); Dwares v. City of New York, 985 F.2d 94, 98-99 (2d Cir. 1993) (adopting the state-created danger theory in the context of a § 1983 claim brought by demonstrators against police officers who allegedly conspired to permit a group of "skinheads" to assault the demonstrators with impunity); Freeman v. Ferguson, 911 F.2d 52, 54-55 (8th Cir. 1990) (adopting the state-created danger theory in the context of a § 1983 claim brought on behalf of a woman killed by her estranged husband against a police chief who allegedly directed his officers to ignore her pleas for police assistance); Cornelius v. Town of Highland Lake, 880 F.2d 348, 356 (11th Cir. 1989) (overruled on other grounds by White v. Lemacks, 183 F.3d 1253, 1256 (11th Cir. 1999)) (adopting the state-created danger theory in the context of a § 1983 claim brought against town and prison officials by a town clerk who was abducted and terrorized by prison inmates assigned to a community work program); Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989) (adopting the state-created danger theory in the context of a § 1983 claim brought against police officers by the passenger of an impounded vehicle who was raped after officers allegedly abandoned her on the side of the road).

7 See, e.g., Kallstrom, 136 F.3d at 1066 ("Liability under the state-created-danger theory is predicated upon affirmative acts by the state which either create of increase the risk that an individual will be exposed to private acts of violence. . . [W]e require plaintiffs alleging a constitutional tort under § 1983 to show special danger in the absence of a special relationship between the state and either the victim or the private tortfeasor. The victim faces special danger where the state's actions place the victim specifically at risk, as distinguished from a risk that affects the public at large."); Kneipp, 95 F.3d at 1208 ("[C]ases predicating constitutional liability on a state-created danger theory have four common elements: (1) the harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; (3) there existed some relationship between the state and the plaintiff; (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.") (quoting Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (3d Cir. 1995)) (internal quotations omitted); Uhlrig, 64 F.3d at 574 ("Plaintiff must demonstrate that (1) [he] was a member of a limited and specifically definable group; (2) Defendants' conduct put [him] and the other members of that group at substantial risk of serious, immediate and proximate harm; (3) the risk was obvious or known; (4) Defendants acted recklessly in conscious disregard of that risk; and (5) such conduct, when viewed in total, is conscience shocking."); Reed, 986 F.2d at 1126 ("[P]laintiffs may state claims for civil rights violations if they allege state action that creates, or substantially contributes to the creation of, a danger or renders citizens more vulnerable to a danger than they otherwise would have been."); Freeman, 911 F.2d at 55 ("[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 increased the individual's danger of, or vulnerability to, such violence beyond the level it would have been absent state action.").

8 To act with deliberate indifference, a state actor must "know[] of and disregard[] an excessive risk to [the victim's] health or safety." Ewolski v. City of Brunswick, 287 F.3d 492, 513 (6th Cir. 2002) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)) (internal quotations omitted). The state actor's actual knowledge is critical to the inquiry. A state actor's failure to alleviate "a significant risk that he should have perceived but did not," while "no cause for commendation," does not rise to the level of deliberate indifference. Farmer, 511 U.S. at 837.

9 Normally, we proceed to the second prong of the Siegert analysis only if we decide, under the first prong, that the defendant engaged in constitutionally impermissible conduct. See, e.g., Saucier, 533 U.S. at 201 ("If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity."); accord Roe v. Tex. Dep't of Protective & Regulatory Servs., 299 F.3d 395, 400-01 (5th Cir. 2002). We make an exception for our alternative holding here, because of the need to articulate whether it is appropriate, when this circuit has not spoken to an issue, to look to the law of other circuits in determining whether a right was "clearly established." While this alternative holding is binding precedent, see Williams v. Cain, 229 F.3d 468, 474 n. 5 (5th Cir. 2000) (noting that alternative holdings are binding precedent in this circuit), we emphasize that such alternative analysis should be rare in qualified immunity cases and should not be undertaken routinely by the panels of this court.

10 We note that if this court had expressly adopted or rejected the state-created danger theory prior to July of 1993 that would, of course, be the end of our inquiry. See, e.g., Boddie, 989 F.2d at 748 (noting that, even when there is a split among federal appellate courts regarding the appropriate resolution of a question of law, "[o]ur [qualified immunity] inquiry ends, if we find from examining the decisions of the Supreme Court and our own decisions that the law was clearly established in this circuit").

11 The Wilson Court also suggested that the Sixth Circuit's decision in Bills was not controlling because that decision did not define the Fourth Amendment right invoked by the Wilson plaintiffs with sufficient specificity to clearly establish that the officers' conduct violated that right. Wilson, 526 U.S. at 615-17.

12 The reluctance of this court, in the ten years since Salas was decided, to embrace some version of the state-created danger theory despite numerous opportunities to do so suggests that, regardless of the status of this doctrine in other circuits, a reasonable officer in this circuit would, even today, be unclear as to whether there is a right to be free from "state-created danger." Put differently, a strong consensus of authorities in other circuits is more likely to be determinative on a subject when this circuit is tabula rasa on that subject than when the landscape in this circuit is littered with opinions expressing varying levels of skepticism.

13 Indeed, general principles of the law are less likely to provide fair warning where, as here, applicability of the doctrine is highly context-sensitive. Cf. Anderson, 483 U.S. at 640-41 (reasoning that the clearly established nature of the right to be free from warrantless searches was not necessarily sufficient to clearly establish that an officer's conduct was objectively unreasonable under the particular circumstances that the officer confronted).