Waybright v. Frederick County, MD

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES WAYBRIGHT, as personal 

representative and co-executor of

the estate of Andrew Waybright

(deceased); SHIRLEY WAYBRIGHT,

individually and as personal

representative and co-executor of

the estate of Andrew Waybright

(deceased),

Plaintiffs-Appellants,

v.

FREDERICK COUNTY, MARYLAND,

DEPARTMENT OF FIRE & RESCUE

SERVICES; WALTER F. MURRAY, in his

official capacity as Fire Emergency

Director for the Frederick County

Department of Fire & Rescue  No. 07-1289

Services; JEFFREY COOMBE, in his

official capacity as training officer

for the Frederick County

Department of Fire & Rescue

Services; STANLEY POOLE, in his

official capacity as a member of the

Frederick County Department of

Fire & Rescue Services; FREDERICK

COUNTY; JAN H. GARDNER, in her

individual and official capacity as a

member of the Frederick County

Board of Commissioners; DAVID

GRAY, in his individual and official

capacity as a member of the

Frederick County Board of



2 WAYBRIGHT v. FREDERICK COUNTY

Commissioners; ANDREW MARSH, in 

his individual and official capacity

as an officer in the Frederick

County Department of Fire &

Rescue Services; MARK MCNEAL, in

his individual and official capacity

as an officer in the Frederick

County Department of Fire &

Rescue Services; TERRE RHODERICK,

in his individual and official

capacity as a member of the

Frederick County Board of 

Commissioners; JOHN L. THOMPSON,

JR., in his individual and official

capacity as a member of the

Frederick County Board of

Commissioners; RICHARD WELDEN,

in his individual and official

capacity as a member of the

Frederick County Board of

Commissioners,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Richard D. Bennett, District Judge.

(1:05-cv-00055-RDB)

Argued: March 21, 2008

Decided: June 2, 2008

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opin-

ion. Judge Wilkinson wrote the opinion, in which Judge King and

Judge Gregory joined.

WAYBRIGHT v. FREDERICK COUNTY 3

COUNSEL

ARGUED: Peter Tyler Enslein, LAW OFFICE OF PETER T. ENS-

LEIN, P.C., Washington, D.C., for Appellants. Thomas Vincent

McCarron, SEMMES, BOWEN & SEMMES, Baltimore, Maryland;

Scott M. Hartinger, ETHRIDGE, QUINN, MCAULIFFE, ROWAN

& HARTINGER, Rockville, Maryland, for Appellees. ON BRIEF:

Kenneth M. Berman, H. David Leibensperger, BERMAN, SOBIN &

GROSS, L.L.P., Gaithersburg, Maryland; Patrick S. Guilfoyle, LAW

OFFICE OF PETER T. ENSLEIN, P.C., Washington, D.C., for

Appellants. Christopher J. Lyon, SEMMES, BOWEN & SEMMES,

Baltimore, Maryland, for Appellees.

OPINION

WILKINSON, Circuit Judge:

Andrew Waybright died by accident while training to join the Fred-

erick County Fire Department in Maryland. His parents brought suit

on state constitutional and tort law grounds — but also, with the same

conduct in view, under 42 U.S.C. § 1983 and substantive due process.

The § 1983 claims overreach; nothing defendants did rises to the level

of a due process violation, and accidents in the main are a matter of

state law. As to the state constitutional and tort law claims, we

remand them to state court, where this case began and where it still

belongs.

I.

A little before seven on the morning of July 3, 2002, new recruits

for the Frederick County Fire Department assembled for outdoor

physical training. A firefighter named Jeffrey Coombe was supervis-

ing, and he drove the recruits hard. He had told the group that he

didn’t like quitters and didn’t like to hear "I can’t." That morning, for

an hour, with temperatures rising to eighty-four degrees and a heat

index rising to ninety-six, recruits ran 4.3 miles, did squats, pushups,

and other calisthenics, and ran wind sprints. Coombe did not bring

water, or communications, transportation, or first-aid equipment.

4 WAYBRIGHT v. FREDERICK COUNTY

Many of the recruits struggled during the session and some experi-

enced disorientation and pronounced exhaustion. One told Coombe

that he was dizzy, and Coombe told him to rest.

A 23-year-old recruit named Andrew Waybright started looking

sick and pale during the workout. Another recruit asked if Waybright

wanted to say something to Coombe, but Waybright said no. Just

before 8:10 A.M., as the session was concluding and everyone was

heading back to the Training Center, Waybright collapsed in the

grass. He tried to crawl back to the Training Center, saying "I want

to finish with my class," and was able to get up briefly. But his legs

were shaky and Coombe told him to rest where he was.

As Waybright lay there, two bystanders came by and offered to call

911, but another firefighter, Eckhardt (who was also an emergency

medical technician), said that Waybright was "just played out," no

need to call. Coombe stayed with Waybright briefly, but did not

administer first aid. Before leaving, Coombe assigned Eckhardt to

watch over Waybright. At the Training Center, Coombe told a second

firefighter, Grossnickle, to get a pickup truck to pick Waybright up.

While Eckhardt waited with him, Waybright lost consciousness.

Eckhardt had no phone or radio, but when Grossnickle arrived in the

truck, Eckhardt told him to call 911. Grossnickle returned to the

Training Center, told another firefighter to call 911, and brought a

paramedic back to the scene. He returned to the Training Center to

look for medical equipment, which he couldn’t find.

At about 8:15, Waybright went into cardiac arrest. The paramedic

administered CPR, and soon thereafter an ambulance arrived and took

Waybright to the emergency room — where, at 9:22, he died. An

autopsy revealed that he had no preexisting conditions and died of

hyperthermia (heat stroke).

A Frederick County Board of Inquiry was impaneled and, after

considerable investigation, issued a report in January 2003. With

respect to Coombe, the report found that he failed to bring water to

the training session (contrary to protocol), overlooked the recruits’

distress during the session, and failed to recognize the emergency sit-

uation that occurred when Waybright collapsed. With respect to Fred-

WAYBRIGHT v. FREDERICK COUNTY 5

erick County’s recruiting school, the report found that its staff was

overloaded and undertrained (Coombe, for example, had no certifica-

tion in physical fitness), and that the school simply could not be run

safely without substantial reform. It also found that at least one super-

visor knew about these problems to some extent. In response to the

incident and report, the recruiting school was shut down for several

years and training outsourced to other jurisdictions.

In March 2004, Andrew Waybright’s parents filed a tort suit in

state court against Jeffrey Coombe, various co-workers in the Freder-

ick County Fire Department, and the Department itself. The com-

plaint alleged wrongful death, loss of solatium, and survival, all

premised on negligence. At a hearing in mid-November, the court dis-

missed the survival claim.

Before the state court could rule on the remainder of the case,

plaintiffs filed an amended complaint adding new defendants and new

causes of action, some of which were federal. Defendants, invoking

federal question jurisdiction, removed to federal district court —

where over the next two-and-a-half years, the case ballooned, swell-

ing in complexity to such an extent that the second amended com-

plaint, at seventy-nine pages, was almost six times the original state

complaint’s length, and the district court needed a chart to keep track

of the claims and defendants. See Waybright v. Frederick County Md.

Dep’t of Fire & Rescue Servs., 475 F. Supp. 2d 542, 548 (D. Md.

2007). When all was said and done, plaintiffs had lodged three types

of claims against four types of defendants.

First was a 42 U.S.C. § 1983 (2000) claim, premised on Way-

bright’s substantive due process right to life and directed against

Coombe, various supervisors at the Fire Department, various mem-

bers of the Frederick County Board of Commissioners, and Frederick

County itself. With respect to Coombe, the claim stemmed from his

conduct on that July 3d morning; as to the others, it stemmed from

their supervisory role in creating the conditions that allegedly led to

Waybright’s death. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

690-91 (1978); Carter v. Morris, 164 F.3d 215, 220-21 (4th Cir.

1999). Second was a state constitutional claim, based on Article 24

of the Maryland Declaration of Rights ("no man ought to be . . .

deprived of his life, liberty or property, but by . . . the Law of the

6 WAYBRIGHT v. FREDERICK COUNTY

land"), and directed against Coombe, the supervisors at the Fire

Department, and the commissioners of the Board. Third were the

original state tort claims, based on wrongful death, loss of solatium,

and (despite the state court’s ruling) survival, and directed against

Coombe, the supervisors at the Department, and Frederick County.

Defendants moved for summary judgment, and, in March 2007, the

district court granted it with respect to plaintiffs’ federal and state

constitutional claims, but remanded the tort claims to the Circuit

Court for Frederick County. Waybright, 475 F. Supp. 2d 542. First,

the district court rejected plaintiffs’ § 1983 due process claim, holding

that Coombe’s conduct was not egregious enough to "shock the con-

science" as a constitutional matter because the harm Coombe did was

not intentional. See County of Sacramento v. Lewis, 523 U.S. 833,

846-49 (1998). The district court reasoned, second, that the federal

due process analysis should control the state Article 24 analysis, cit-

ing the Maryland Court of Appeals for the proposition that the two

are "in pari materia, such that the interpretations of the Due Process

Clause of the Fourteenth Amendment provided by the United States

Supreme Court serve as persuasive authority for Article 24." Pickett

v. Sears, Roebuck & Co., 775 A.2d 1218, 1224 (Md. 2001). Finally,

as to plaintiffs’ state tort claims, the district court declined to exercise

supplemental jurisdiction and remanded them to state court. Plaintiffs

timely appealed.

II.

The § 1983 claim against Jeffrey Coombe is the gateway to all the

other § 1983 claims, for supervisors and municipalities cannot be lia-

ble under § 1983 without some predicate "constitutional injury at the

hands of the individual [state] officer," at least in suits for damages.

City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); see also

Grayson v. Peed, 195 F.3d 692, 696 (4th Cir. 1999). Here, the indi-

vidual constitutional wrong alleged is that Coombe deprived Way-

bright "of his right to life under the Fourteenth Amendment to the

U.S. Constitution" — a substantive due process claim. Second Am.

Compl. ¶ 114. If this allegation survives scrutiny, we go on to the oth-

ers; if not, the federal side of this case comes to a close.

WAYBRIGHT v. FREDERICK COUNTY 7

A.

The Fourteenth Amendment’s Due Process Clause protects a set of

interests — life, liberty, and property — that are also protected by

state tort law. Together with § 1983, then, there is some risk of the

Clause supplanting state tort law in almost any suit alleging that a

local official has caused harm. In case after case, the Supreme Court

has rejected this prospect and spurned any approach to the Fourteenth

Amendment that would make it "a font of tort law to be superimposed

upon whatever systems may already be administered by the States."

Paul v. Davis, 424 U.S. 693, 701 (1976). See also County of Sacra-

mento v. Lewis, 523 U.S. 833, 848 (1998) ("[T]he due process guaran-

tee does not entail a body of constitutional law imposing liability

whenever someone cloaked with state authority causes harm."); Col-

lins v. City of Harker Heights, 503 U.S. 115, 128-29 (1992) ("[W]e

have previously rejected claims that the Due Process Clause should

be interpreted to impose federal duties that are analogous to those tra-

ditionally imposed by state tort law."); DeShaney v. Winnebago

County Dep’t of Social Servs., 489 U.S. 189, 202 (1989) ("[T]he Due

Process Clause of the Fourteenth Amendment . . . does not transform

every tort committed by a state actor into a constitutional violation.");

Daniels v. Williams, 474 U.S. 327, 332 (1986) ("Our Constitution . . .

does not purport to supplant traditional tort law in laying down rules

of conduct to regulate liability for injuries that attend living together

in society."); Baker v. McCollan, 443 U.S. 137, 146 (1979) ("Section

1983 imposes liability for violations of rights protected by the Consti-

tution, not for violations of duties of care arising out of tort law.").

Two principles stand out in these cases. The first involves a certain

sense of constitutional magnitude — a sense that, as due process at

the core combats "arbitrary action" of government, County of Sacra-

mento, 523 U.S. at 845 (emphasis added), applying the Clause to the

ordinary run of governmental neglect, inaction, and bad policy would

diminish it. Thus we find the Court remarking that "only the most

egregious official conduct can be said to be arbitrary in the constitu-

tional sense," id. at 846 (quotation omitted); that the Constitution

"deals with the large concerns of the governors and the governed,"

Daniels, 474 U.S. at 332; that courts should exercise "judicial self-

restraint" and "utmost care" in novel substantive due process cases,

Collins, 503 U.S. at 125; and that the Clause "was intended to prevent

8 WAYBRIGHT v. FREDERICK COUNTY

government from abusing its power, or employing it as an instrument

of oppression," DeShaney, 489 U.S. at 196 (quotation omitted), and

it would not do to "trivialize" it, Daniels, 474 U.S. at 332. Repeatedly,

the Court quotes Chief Justice Marshall’s great admonishment: "[W]e

must never forget, that it is a constitution we are expounding."

McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in origi-

nal), quoted in County of Sacramento, 523 U.S. at 846; Daniels, 474

U.S. at 332; and Paul, 424 U.S. at 732 (Brennan, J., dissenting).

Second is concern for the authority of state governments over areas

traditionally assigned to state law — and with that, disquiet at the

potentially staggering practical consequences of empowering federal

judges to oversee everything from pillows left on prison stairs (Dan-

iels) to sewer maintenance (Collins) with the inflexible instrument of

constitutional law. Thus Collins states that decisions about how to

allocate resources in state government "involve a host of policy

choices that must be made by locally elected representatives, rather

than by federal judges interpreting the basic charter of Government

for the entire country." 503 U.S. at 129. And Paul v. Davis, "paus-

[ing] to consider the result" should § 1983 be interpreted to "trans-

mute[ ]" ordinary torts against the government into Fourteenth

Amendment claims, points out that almost anyone wronged by local

authority would obtain a constitutional claim under such a view — a

result that "would come as a great surprise to those who drafted and

shepherded the adoption of that Amendment." 424 U.S. at 698-99.

With these principles in mind, the Supreme Court has, for half a

century now, marked out executive conduct wrong enough to register

on a due process scale as conduct that "shocks the conscience," and

nothing less. County of Sacramento, 523 U.S. at 846 (quoting Rochin

v. California, 342 U.S. 165, 172 (1952)). The shocks-the-conscience

test turns on degree of fault. For a due process challenge to executive

action to succeed, the general rule is that the action must have been

"intended to injure in some way unjustifiable by any government

interest." County of Sacramento, 523 U.S. at 849. As to "negligently

inflicted harm," it is "categorically beneath the threshold of constitu-

tional due process." Id. And as to "culpability falling within the mid-

dle range, following from something more than negligence but less

than intentional conduct," the Court has allowed that it may have con-

stitutional implications, but only in special circumstances. Id. (quota-

WAYBRIGHT v. FREDERICK COUNTY 9

tion omitted). As to what those special circumstances are, the Court

has issued no general rule except that judges should proceed with

"self-restraint" and "utmost care," Collins, 503 U.S. at 125, and make

"an exact analysis" of the circumstances presented "before any abuse

of power is condemned as conscience shocking," County of Sacra-

mento, 523 U.S. at 850.

What this body of law on the whole makes clear is that, where a

claim sounds both in state tort law and substantive due process, state

tort law is the rule and due process the distinct exception. In other

words, the Supreme Court has established a strong presumption that

§ 1983 due process claims which overlap state tort law should be

rejected and the case, if diversity is lacking, sent to state court. The

presumption is rebuttable: It can be overcome by showing govern-

mental conduct so "arbitrary" and "egregious" that it "shocks the con-

science," usually because a state actor intended harm without

justification. County of Sacramento, 523 U.S. at 845-46, 849. But the

presumption should be vigorously applied, for without it, a problem

arises that we see in the present case and never want to see in law:

basic difficulty and extensive litigation over the forum in which a

case belongs — a threshold question that tells plaintiffs and defen-

dants nothing about the merits of the case and delays resolution for

all.

Plaintiffs’ § 1983 due process claim overlaps state tort law; there

is thus a presumption against it. The most likely path for overcoming

the presumption is closed, for under no construction of events could

Coombe be said to have intended Waybright’s death. And to the

extent Coombe was negligent, the claim is not a constitutional one

and the presumption stands. Thus plaintiffs’ only option is to argue,

against a presumption to the contrary, that this case presents one of

those special circumstances in which culpability in the middle range

— here, deliberate indifference — should shock the conscience to

such an extent that a federal action lies.

B.

Plaintiffs’ first and major argument for recognizing a federal sub-

stantive due process claim is that Coombe, in their view, had time

before Waybright’s collapse to deliberate about the dangers awaiting

10 WAYBRIGHT v. FREDERICK COUNTY

recruits. Coombe knew how dangerous it was to exercise outside in

the heat without adequate hydration; he had given a PowerPoint pre-

sentation on the subject just the day before the fatal run. And although

one might disagree as to whether Coombe had time to deliberate after

Waybright collapsed, plaintiffs argue, he certainly had time before-

hand to make an unrushed decision about the need to have water on

hand. According to plaintiffs, it was this time to deliberate that trans-

muted what might otherwise be ordinary negligence into a form of

deliberate indifference cognizable under the U.S. Constitution.

The support for this argument comes from the Sixth Circuit’s

remarks in Estate of Owensby v. City of Cincinnati that "[t]he deter-

mining factor" when deciding whether deliberate indifference shocks

the conscience should be "whether the circumstances allowed the

state actors time to fully consider the potential consequences of their

conduct." 414 F.3d 596, 602 (6th Cir. 2005) (quotation omitted). But

the case law as a whole is against a general rule that time to deliberate

transforms negligent error into constitutionally shocking conduct. The

D.C. Circuit has rejected the rule, holding that "[t]he opportunity for

deliberation alone is not sufficient to apply" a lower bar to substantive

due process claims. Fraternal Order of Police Dep’t of Corr. Labor

Comm. v. Williams, 375 F.3d 1141, 1146 (D.C. Cir. 2004). And the

Supreme Court, we think, has done the same. In holding that due pro-

cess does not require governmental employers to provide a safe work-

place, but that state tort law may, see Collins v. City of Harker

Heights, 503 U.S. 115 (1992), the Court necessarily rejected the time

to deliberate theory — for employers most often have time to deliber-

ate about workplace conditions. The Court has also held that there is

no deliberate indifference without actual knowledge of a danger, see

Farmer v. Brennan, 511 U.S. 825, 837 (1994) — and of course one

can have time to deliberate about danger without having actual

knowledge of it.

The time to deliberate theory is also difficult to apply. What part

of the challenged conduct matters? Does the opportunity to deliberate

begin months or weeks before an accident, the night before, or at the

time events unfolded? This question would emerge in many cases

besides Waybright’s because longstanding conditions often lead to

rapidly unfolding harm. Also, when has one had enough time to delib-

erate? What kind of prior notice of potential danger causes the delib-

WAYBRIGHT v. FREDERICK COUNTY 11

erative duty to kick in? These and other questions have real litigious

potential. Indeed, they threaten more cases like the present one, where

confusion over what belongs in state and what in federal court leads

to delay for plaintiffs in getting relief and uncertainty for defendants

in finding out if liability attaches.

Plaintiffs’ second argument is that a federal question arises because

Coombe and Waybright were in what the Supreme Court has called

"a special relationship." See DeShaney v. Winnebago County Dep’t of

Social Servs., 489 U.S. 189, 197-200 (1989). It is true that, where the

state is in a special relationship to a private individual, it acquires a

duty to act on that individual’s behalf and its failures to act are mea-

sured on a deliberate indifference standard; that is why a conscious

disregard of the rights of prisoners, pretrial detainees, and committed

mental patients have traditionally been examined for deliberate indif-

ference. See Patten v. Nichols, 274 F.3d 829, 836-37 (4th Cir. 2001).

The problem is that "special relationship" is a term of art that does not

apply to Coombe and Waybright.

As DeShaney indicates and our case law specifies, a "special rela-

tionship" is all but synonymous with a custodial relationship. See

DeShaney, 489 U.S. at 199-200 ("[W]hen the State takes a person into

its custody and holds him there against his will, the Constitution

imposes upon it a corresponding duty to assume some responsibility

for his safety and general well-being."); Pinder v. Johnson, 54 F.3d

1169, 1175 (4th Cir. 1995) (en banc) ("This Court has consistently

read DeShaney to require a custodial context before any affirmative

duty can arise under the Due Process Clause."). The idea of a custo-

dial relationship is a circumscribed one, grounded in the rationale

DeShaney gives for it: "[W]hen the State by the affirmative exercise

of its power so restrains an individual’s liberty that it renders him

unable to care for himself, and at the same time fails to provide for

his basic human needs . . . it transgresses the substantive limits on

state action . . . ." 489 U.S. at 200. Thus "[s]ome sort of confinement"

is needed to render a relationship custodial, such as "incarceration,

institutionalization, or the like." Pinder, 54 F.3d at 1175. Coombe did

not confine Waybright in this sense. Waybright was free to walk away

from the exercise session and the job. See Collins, 503 U.S. at 128

(holding that a city employee in a dangerous workplace is not in a

12 WAYBRIGHT v. FREDERICK COUNTY

custodial relationship because he has "voluntarily accepted[ ] an offer

of employment").

Plaintiffs’ third argument is that a substantive due process claim

arises because Coombe created the danger Waybright faced. As we

stated in Pinder, "[w]hen the state itself creates the dangerous situa-

tion that resulted in a victim’s injury, the absence of a custodial rela-

tionship may not be dispositive." 54 F.3d at 1177. Here, plaintiffs

argue, the training session should qualify as a state-created danger

because a state actor, Coombe, "used his authority to create an oppor-

tunity for danger that otherwise would not have existed," and thereby

knowingly put Waybright in harm’s way. Rivas v. City of Passaic,

365 F.3d 181, 194 (3d Cir. 2004).

To apply the state-created danger theory in this context, however,

would run afoul of the Supreme Court’s unanimous decision in Col-

lins, 503 U.S. 115, which held that due process does not impose a

duty on municipalities to provide their employees with a safe work-

place or warn them against risks of harm (though state tort law may).

The case is right on point, for plaintiffs’ state-created danger claim,

in essence, is that Coombe created an unsafe workplace that caused

a prospective employee harm. And while we recognize that Collins

involved a municipal rather than an individual defendant, the case

speaks decisively to the situation here.

The underlying concern in Collins was that constitutional law

would push state tort law aside whenever a state or local government

acted as employer, thus placing "a host of policy choices that must be

made by locally elected representatives" with "federal judges inter-

preting the basic charter of Government for the entire country." Id. at

129. The state-created danger theory in the present case portends just

such a federal displacement of state authority over state activities, for

it would potentially set up a federal question whenever an accident

happens during activities sponsored by the state. The practical conse-

quences would be immense; by finding a state-created danger here,

we might well inject federal authority into public school playground

incidents, football (or even ballet) practice sessions, and class field

trips, not to mention training sessions for government jobs that

require some degree of physical fitness. Sometimes practice is

demanding because games are demanding, and training is demanding

WAYBRIGHT v. FREDERICK COUNTY 13

because jobs are demanding, and how best to conduct these sessions

can rarely be the focus of a constitutional claim. To transform ordi-

nary mishaps into constitutional questions would not only bring them

into federal court more frequently. Because Congress and the federal

judiciary often set the ground rules for those claims in terms of scope

of immunity, availability of punitive damages, award of attorneys’

fees, and the like, the displacement of state law with federal policies

would be difficult to overstate.

C.

Plaintiffs’ attempt to create a federal claim is thus all but at a close.

The facts reveal a terribly sad occurrence, but not conduct that meets

the constitutional threshold.

The Supreme Court has held that "only the most egregious official

conduct" can shock the conscience. County of Sacramento v. Lewis,

523 U.S. 833, 846 (1998). Successful claims in this area typically fea-

ture quite extreme governmental wrongdoing. See, e.g., Rochin v.

California, 342 U.S. 165 (1952) (pumping a suspect’s stomach to

look for drugs). But here, under no plausible reading of the facts did

Coombe even know that Waybright was in serious, let alone mortal,

danger. When Waybright started to feel ill during the workout, he did

not tell Coombe. (Another recruit, who did tell Coombe when he felt

dizzy, was given a break.) When Waybright collapsed, he did not

immediately lose consciousness, and indeed "got back up under his

own power" and "kept saying, ‘I want to finish with my class,’"

according to the Board of Inquiry report. No one at that time seems

to have recognized how serious Waybright’s situation was; hence the

remark by another firefighter, when two passers-by offered to call

911, that there was no need to call because Waybright was "just

played out." In addition, Coombe did not ignore or disregard Way-

bright’s distress when he learned of it. After Waybright stood up in

an effort to continue, it was Coombe who told him to rest instead.

Coombe also assigned a second firefighter (one with medical training)

to look after Waybright, and told a third firefighter to get a vehicle

to pick Waybright up. This conduct is a far cry from shocking the

conscience. It was, rather, as the Board of Inquiry concluded, an

under-reaction — that is, a misjudgment. Whether it was a negligent

misjudgment is not for us to say, but misjudgments such as these are

14 WAYBRIGHT v. FREDERICK COUNTY

"categorically beneath the threshold of constitutional due process."

County of Sacramento, 523 U.S. at 849.

Of course, one wishes dearly that Coombe had acted differently.

"Tragic circumstances," as we have remarked, "only sharpen our

hindsight . . . ." Pinder v. Johnson, 54 F.3d 1169, 1178 (4th Cir.

1995). In that spirit, plaintiffs urge us to turn our focus away from

Coombe’s conduct after Waybright collapsed and toward Coombe’s

initial decision to go on the run without water or other supplies. But

one way of improperly using hindsight is to reason backwards from

an accident to the decisions that set it into motion. One must instead

take the situation ex ante, from the perspective of the state official,

and ask whether his or her decisions when he or she made them were

of a magnitude to shock the conscience. Instruction that seems over-

zealous, and precautions that seem insufficient, do not reach that

level.

We therefore affirm the district court’s denial of plaintiffs’ § 1983

claim against Coombe. And with the claim against Coombe gone, so

go the § 1983 claims against everyone else. See City of Los Angeles

v. Heller, 475 U.S. 796, 799 (1986); Grayson v. Peed, 195 F.3d 692,

696 (4th Cir. 1999).

III.

The federal side of this case is at an end. What remain, however,

are plaintiffs’ state constitutional claims under Article 24 of the Mary-

land Declaration of Rights and the state tort claims with which this

case began. The district court dismissed the constitutional claims

because, according to Pickett v. Sears, Roebuck & Co., 775 A.2d

1218, 1224 (Md. 2001), Article 24 and the federal Due Process

Clause are to be interpreted "in pari materia." But the court declined

to exercise supplemental jurisdiction over the tort claims, and

remanded them, because they "involve novel and complex arguments

regarding the interplay between" various state statutes, as well as the

"impact of those rulings" already made in this case in the Circuit

Court for Frederick County. Waybright v. Frederick County Md.

Dep’t of Fire & Rescue Servs., 475 F. Supp. 2d 542, 556-57 (D. Md.

2007).

WAYBRIGHT v. FREDERICK COUNTY 15

We agree with the district court’s decision as to the tort claims, but

it erred in passing on the merits of plaintiffs’ Article 24 claim. Since

Pickett was decided, Dua v. Comcast Cable of Md., Inc., 805 A.2d

1061, 1072 (Md. 2002), stated that federal decisions about the Due

Process Clause "are no more than persuasive authorities" when it

comes to applying Article 24, and Koshko v. Haining, 921 A.2d 171,

194 (Md. 2007), noted that "the extent of protection bestowed upon

liberty interests recognized as being enshrined within the Due Process

Clause of the Fourteenth Amendment to the U.S. Constitution does

not dictate necessarily the full complement of safeguards extended to

liberty interests available under the Maryland due process analog

found in Article 24."

We decline to make a close analysis of the issue, however, because

there is an even more important reason to decline supplemental juris-

diction here. The upshot of our analysis is that this case is basically

a state case gone awry. With all its federal questions gone, there may

be the authority to keep it in federal court under 28 U.S.C. §§ 1367(a)

and 1441(c) (2000), but there is no good reason to do so. Plaintiffs

deserve a day in court on all their state law claims, and the better path

is to send their case back to state court whole.

IV.

This case started life as a perfectly sensible state tort suit. Then, a

little repackaging turned its state tort claims into federal due process

claims under § 1983 and created a constitutional case — a rather

swollen one at that — which, after three-and-a-half years of addi-

tional litigation, is going right back to the court and basically the

claims with which it started. In part, this case is sad because of the

tragedy that set it into motion. But it is sad also because of the long

legal detour that stilled all progress on the merits while federal courts

necessarily rebuffed the prospect of federal law taking over the tradi-

tional office of the states. Plaintiffs had every right to amend their

state court complaint; defendants had every right to remove on the

basis of a federal question; and plaintiffs had every right to appeal the

dismissal of their federal claims. But wisdom may reside in recogniz-

ing that less is sometimes more and that zealous advocacy need not

always part company with forbearance and restraint. Recognizing this

case for what it was and what it remains, we affirm the dismissal of

16 WAYBRIGHT v. FREDERICK COUNTY

plaintiffs’ federal claims and direct that all state claims be remanded

to state court.

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED