Amanda Rakes v. Jonathan Roederer

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-1816

AMANDA RAKES, Administrator of the Estate of Amylyn

Slaymaker and Next Friend to the minor children G.C. and

M.C.,

Plaintiff-Appellant,

v.

JONATHAN P. ROEDERER and ESTATE OF TE’JUAN JOHNSON,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, New Albany Division.

No. 4:21-cv-00114 — Jane Magnus-Stinson, Judge.

____________________

ARGUED JANUARY 18, 2024 — DECIDED SEPTEMBER 25, 2024

____________________

Before RIPPLE, BRENNAN, and SCUDDER, Circuit Judges.

PER CURIAM. On the night of July 18, 2019 in Charlestown,

Indiana, bystanders called 911 to report that a man, RJ

Slaymaker (RJ), and a woman, Amylyn Slaymaker (Amylyn),

were fighting in the middle of a residential street. Two police

officers responded to the call and separated RJ and Amylyn.

Amylyn told the officers that RJ (her husband) was drunk,

2 No. 23-1816

had hit her, had guns on him and at their house, and was

threatening to kill her and himself. RJ denied hitting her or

making any threats. The officers called an ambulance for RJ

so he could get help with mental health issues at a nearby

hospital. After RJ left in the ambulance, the officers allegedly

told Amylyn that RJ would be kept at the hospital under a 24-

hour mental health hold.

But if they did say that to Amylyn, it was not true: neither

the officers nor anyone else placed RJ under a hold. Instead,

the officers merely encouraged him to seek help voluntarily.

RJ left the hospital shortly after arriving and returned to the

house that he shared with Amylyn. There, he shot and killed

Amylyn, then himself.

The administrator of Amylyn’s estate subsequently

brought this action against Officer Roederer and the estate of

Officer Johnson (who died shortly before this litigation). She

primarily relies on the state-created danger doctrine, under

which state officials can in limited circumstances be held

liable under section 1983 for recklessly placing plaintiffs at

risk of harm from third parties. The district court concluded

that the defendants were entitled to qualified immunity and

granted summary judgment on that basis.

We now affirm the judgment of the district court insofar

as it relates to Officer Roederer. He may recover his costs

related to this appeal. We reverse the judgment of the district

court and remand for further proceedings insofar as it relates

to Officer Johnson. His estate may recover its costs on this

appeal.

Each judge of the panel has filed a separate opinion setting

forth his view on the appropriate disposition of this appeal.

No. 23-1816 3

Judge Ripple would reverse the judgment of the district court

with respect to both defendants and remand for further

proceedings. Judge Scudder would reverse the judgment and

remand for further proceedings with respect to the estate of

Officer Johnson. He would affirm the judgment with respect

to respect to Officer Roederer. Judge Brennan would affirm

the judgment of the district court with respect to both

defendants. The opinion of each judge is set forth below.

RIPPLE, Circuit Judge.

At the time of their deaths, RJ and Amylyn Slaymaker had

been married for about seven years. The allegations of abuse

during that period are startling. He shot at her on multiple

occasions, and he once set fire to their couches in an attempt

to burn down their house. He also often “dared” her to

engage in sexual acts with other men and threatened to hurt

her if she did not complete the “dares.” Examples of these

threats included “I’ll break your fucking jaw [if] you walk in

my fucking house without completeing [sic] my dare” 1 and

“Come home and not complete shit, you will be in the

hospital.” 2 Whenever Amylyn suggested divorce, RJ

threatened suicide. If she called the police, RJ said he would

commit “suicide by cop.” 3

On the night in question, RJ completely lost control. He

had a few drinks, then a few more drinks. At around 11 p.m.,

he texted Amylyn to say that, because she had not completed

one of his “dares,” he was going to “gun [d]own” Eric,

1 R.67-21 at 7.

2 Id.

3 R.67-3 at 20:53-58; R.67-4 at 22.

4 No. 23-1816

Amylyn’s ex-husband and the father of her two children. 4 Eric

was watching the children at his house that night. RJ taunted

Amylyn: “Watch [m]e on gps. … Heading to your kids

house.” 5 He told her to “[g]ive it 10 mins and call the cops.” 6

It would be a “[r]eal suicide crime scene,” he predicted.7

Amylyn barely beat RJ to Eric’s house, stopping him right in

front of Eric’s driveway. RJ said to her, “Do you want me to

shoot you? And then the kids come out in the morning to see

their mother dead?”8 The two of them got into a physical

altercation in the street.

One of Eric’s neighbors saw them fighting and called 911.

The neighbor told dispatchers that he and his wife saw a man

hitting a woman on the street near his house and that the man

may have had a gun. Charlestown Police Department Officers

Te’Juan Johnson and Jonathan Roederer responded to the call.

The officers drove to the scene separately, and video cameras

mounted on the dashboards of their cars captured much of

what followed. When the officers arrived, Amylyn told them

that RJ was drunk and armed and that she was “scared for

[her] life.” 9 The officers handcuffed RJ, confiscated his gun,

and separated the spouses.

The officers endeavored to find out what had happened.

Officer Johnson spoke with Amylyn. She showed him the

4 R.82-4 at 1.

5 Id.

6 Id.

7 Id.

8 R.67-4 at 14.

9 R.67-3 at 1:33-35; R.67-4 at 4–5.

No. 23-1816 5

texts RJ had sent her and told him that, during the fight in the

street, RJ had punched her and hit her with the front sight of

his gun. She also told him about RJ’s other threatening

behavior and that he had two AR-15s at their house. Officer

Roederer spoke with RJ and the neighbors. RJ denied hitting

Amylyn and said he was having a hard time with PTSD he

developed in military service. The neighbors admitted

uncertainty about whether they had actually seen RJ hit her.

At one point, Amylyn asked Officer Johnson if the officers

could remove RJ’s AR-15s from her house. Officer Johnson

relayed the request to Officer Roederer and suggested that

Officer Roederer drive RJ back to the house and remove the

AR-15s. Officer Roederer expressed hesitation:

OFFICER ROEDERER: You want me to get the guns

from his house?

OFFICER JOHNSON: Yeah, the two AR-15s, yeah.

…

OFFICER ROEDERER: I mean, should I keep him in

cuffs until I get the guns? I’m

not -- I mean, I don’t want to

walk inside -- 10

In his deposition, Officer Roederer confirmed that his concern

was one of “officer[] safety.” 11 Officer Johnson seemed to

appreciate this concern, and the two of them discussed other

potential courses of action.

10 R.67-3 at 29:32-30:15; R.67-4 at 30–31.

11 R.82-3 at 66.

6 No. 23-1816

After some deliberation, the officers ruled out one such

course of action: arresting RJ. Officer Johnson told Amylyn

that they did not plan to arrest RJ, and he explained to

Amylyn certain options she had, including going to the

courthouse in the morning and asking the court to commit RJ

to a hospital on account of his suicide risk. Amylyn then said

to them: “I have proof that he tried to attempt suicide before.

Will that help? … [H]e sent me a picture of his gun against his

head recently.” 12 Amylyn showed the officers the picture, and

Officer Johnson told her, “Wait right here for me.” 13

The officers walked over to RJ and suggested that he go to

a nearby hospital to “get checked out.” 14 They assured him

that they would not go with him to the hospital and that they

would not show anyone else the picture in which he was

pointing a gun to his head. They also told him that if he did

not agree to go to the hospital, they could compel him to stay

there for a week. But if he went on his own accord, Officer

Roederer said, “you don’t have to stay in there.” 15 Officer

Johnson twice told RJ that he would prefer that RJ go

voluntarily, because otherwise he would have to type up a

report. 16 RJ reluctantly agreed. The officers called an

ambulance, which arrived at around 12:40 a.m. Officer

12 R.67-3 at 39:10-21; R.67-4 at 41.

13 R.67-3 at 44:25-27; R.67-4 at 47.

14 R.67-3 at 44:59-45:02; R.67-4 at 48.

15 R.67-3 at 48:10-13; R.67-4 at 53.

16 See R.67-4 at 48 (“I’d rather for you to do it voluntarily, or -- you know,

so now I got to type a report.”); id. at 51 (“If you’re willing to go -- or if

not, I go back to the station, type up papers, then I got to corroborate

everything it says in there.”).

No. 23-1816 7

Johnson told the EMTs: “This is RJ. Man, he got into it with

his wife. He was having a bad day. Problems -- you know, he

wants to voluntarily get checked out.” 17

The officers then went back to speak with Amylyn. The

conversation that followed is at the center of this case:

OFFICER JOHNSON: Are you going to go to your

house? You’re -- you’re going

to be at your parents’ house?

AMYLYN SLAYMAKER: Well, you -- you said it’s a 24-

hour thing, right? For an

evaluation?

OFFICER JOHNSON: Yeah … . 18

The conversation continued, eventually returning to the topic

of where Amylyn planned to stay that night:

OFFICER JOHNSON: Okay, so are you going to go to

your house?

AMYLYN SLAYMAKER: Well, tonight, yeah.

OFFICER JOHNSON: Are you going to --

AMYLYN SLAYMAKER: You said it’s a 24 hour?

OFFICER JOHNSON: Yeah. So are you going to get

the guns and everything when

you go home?

17 R.67-3 at 1:02:39-47; R.67-4 at 73.

18 R.67-3 at 1:08:03-15; R.67-4 at 77–78.

8 No. 23-1816

AMYLYN SLAYMAKER: Yeah, I’m going to take them

with me to my parents’. 19

According to Ms. Rakes, these exchanges indicate that, at

some time earlier that night, the officers told Amylyn that

they would send RJ to the hospital with instructions for

hospital staff to put him under a 24-hour mental health hold.

The officers were permitted to put RJ under such a hold by

state law, 20 and they were required to do so by their

department’s policy. 21

Everyone eventually left the scene, but not long

afterwards, Officer Johnson got a call from Amylyn. She told

19 R.67-3 at 1:29:24-33; R.67-4 at 97.

20 At the time, Indiana law permitted law enforcement to transport a

person who has a mental illness, is dangerous, and “is in immediate need

of hospitalization and treatment” to a nearby hospital, and to detain that

person for up to 24 hours. See Ind. Code § 12-26-4-1 et seq. (repealed in

2023); see also T.K. v. Dep’t of Veterans Affairs, 27 N.E.3d 271, 273 n.1 (Ind.

2015) (describing circumstances under which the state law then in effect

permitted involuntary civil commitment).

21 Under the policy,

A Department officer …, who during the course of their duties as

a law enforcement officer, has reasonable grounds to believe that

an individual is mentally ill, dangerous to themselves or others,

and/or in immediate need of hospitalization and treatment shall:

1. Exercise immediate twenty-four (24) hour detention for mental

evaluation authority provided for in Indiana Code 12-26-4.

2. Summons an ambulance to transport the individual to the

nearest medical facility with psychiatric intake personnel … .

3. Complete a narrative style report or proper facility form(s) … .

R.48-3.

No. 23-1816 9

him that she had found a scratch on her arm that was

consistent with having been hit by RJ’s gun in their fight

earlier. Amylyn went to the police station and showed Officer

Johnson the scratch. Officer Johnson summarized the

conversation that followed in a report he filed at least one day

later (i.e., after he learned about the murder-suicide). In that

report (the veracity of which Ms. Rakes questions), Officer

Johnson wrote that he told Amylyn to “make sure to get the

other two AR-15s and stay at her mother[’s] house.” 22 He also

wrote: “Amylyn asked several times how long will [RJ] be in

the hospital. Officers told her we did not know.” 23

Meanwhile, RJ walked into the hospital at approximately

1 a.m., alone. He received a psychiatric evaluation and was

discharged at 3:41 a.m. Sometime after that, he went home

and shot Amylyn in the head with one of his AR-15s. He sent

a message to his mother at 7:49 p.m. the following evening,

stating that he had killed Amylyn because she had “[s]crewed

[him] so bad.” 24 RJ sent his mother another message at

approximately 11:43 p.m. (by now, nearly 24 hours after RJ

entered the hospital). The message stated: “I’m not going to

prison. Amylyn is dead. And so am I.”25 RJ’s mother called

the police department to request a welfare check, which

prompted officers to go to RJ and Amylyn’s house at around

22 R.67-9 at 15.

23 Id.

24 R.82-11 at 2.

25 R.67-11 at 6.

10 No. 23-1816

midnight. The officers found both RJ and Amylyn dead.

Amylyn’s body was “cold to the touch.” 26

Amanda Rakes, the administrator of Amylyn’s estate,

brought this action in the United States District Court for the

Southern District of Indiana. Her complaint sets forth a

substantive due process claim under 42 U.S.C. § 1983 and a

gender-discrimination conspiracy claim under 42 U.S.C.

§ 1985. She named as defendants Officer Roederer and,

because Officer Johnson died between the events in question

and the filing of this suit, Officer Johnson’s estate. The

defendants moved for summary judgment on both claims.

The district court granted summary judgment to the

defendants. The court noted that Ms. Rakes’s substantive due

process claim was based on the premise that the officers had

told Amylyn “that RJ would be held for 24 hours at the

hospital and that it therefore was safe for her to go home.”

Rakes v. Roederer, No. 4:21-cv-00114, 2023 WL 2712370, at *16

(S.D. Ind. Mar. 30, 2023). It then held that Officer Roederer

was entitled to qualified immunity because, in the district

court’s view, there was no evidence that he had made any

assurances to Amylyn and there was generally a “lack of

evidence of any personal involvement” on his part. Id. at *18

n.8.

The district court also held that Officer Johnson was

entitled to qualified immunity. Here, the court focused on the

time that Officer Johnson had spent trying to talk Amylyn into

staying at her parents’ house. It further deemed significant

that “RJ had been a danger to Amylyn for months before the

incident and would likely have continued to be so even if he

26 R.67-12 at 2.

No. 23-1816 11

had been held for 24 hours at the hospital.” Id. at *18. Finally,

the district court separately rejected Ms. Rakes’s gender-

discrimination conspiracy claim. It entered summary

judgment for the defendants on both claims.

Ms. Rakes appealed the district court’s grant of summary

judgment on her substantive due process claim.

We review de novo a district court’s decision granting

summary judgment. Pierner-Lytge v. Hobbs, 60 F.4th 1039, 1043

(7th Cir. 2023). Summary judgment is appropriate if “there is

no genuine dispute of fact” and the moving party is “entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In

applying this standard, we view the facts and draw all

reasonable inferences in the light most favorable to the

nonmoving party. Pierner-Lytge, 60 F.4th at 1043.

The main basis for the district court’s grant of summary

judgment was its conclusion that the defendants are entitled

to qualified immunity. “Determining whether a defendant

state officer is entitled to qualified immunity involves two

inquiries: ‘(1) whether the facts, taken in the light most

favorable to the plaintiff, make out a violation of a

constitutional right, and (2) whether that constitutional right

was clearly established at the time of the alleged violation.’”

Gibbs v. Lomas, 755 F.3d 529, 537 (7th Cir. 2014) (quoting

Williams v. City of Chicago, 733 F.3d 749, 758 (7th Cir. 2013)).

“If either inquiry is answered in the negative, the defendant

official is entitled to summary judgment.” Id.

The Due Process Clause of the Fourteenth Amendment

generally does not impose a duty upon the State to protect

individuals from harm by private actors. DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189

12 No. 23-1816

(1989), embodies that principle. DeShaney involved a due

process claim brought on behalf of a young boy who was

abused by his father. Id. at 191. County social workers became

aware of suspicious injuries and other signs of abuse but took

no action to remove the child from his father’s custody. Id.

After the latest and most severe beating left the boy

permanently disabled, the father was arrested and convicted

of child abuse. Id. at 193. The boy’s mother then brought a

section 1983 action against the county and the social workers.

She claimed that they had violated her son’s right to due

process of law. Id. The Supreme Court articulated the general

principle that “a State’s failure to protect an individual

against private violence simply does not constitute a violation

of the Due Process Clause.” Id. at 197. It accordingly rejected

the mother’s claim because “the State had no constitutional

duty to protect [the boy] against the father’s violence.” Id. at

202.

Although state officials do not have a federal

constitutional duty to protect individuals not in custody, they

do have a duty not to “needlessly create risks of harm.” Paine

v. Cason, 678 F.3d 500, 510 (7th Cir. 2012). Indeed, the Court

indicated as much in DeShaney, when it emphasized, no less

than three times, that the defendants played no part in the

creation of the danger the boy faced. 489 U.S. at 197, 201, 201–

02. Accordingly, although mindful of DeShaney, we have

recognized in several decisions that state officials can, in

limited circumstances, be held liable under § 1983 for

unjustifiably placing a person at risk of harm from third

parties. See, e.g., Paine, 678 F.3d at 510–11 (police could be

liable under § 1983 for arresting woman in safe area and

releasing her in area with an exceptionally high crime rate);

Reed v. Gardner, 986 F.2d 1122, 1127 (7th Cir. 1993) (police

No. 23-1816 13

could be liable under § 1983 for arresting car driver and

leaving keys in hands of intoxicated passenger). We have

termed such claims state-created danger claims and called the

resulting doctrine the state-created danger doctrine. Most

other circuits have recognized a version of this doctrine. See

Irish v. Fowler, 979 F.3d 65, 67, 73 (1st Cir. 2020) (collecting

cases from nine circuits and joining those circuits).

The state-created danger doctrine has important limits.

First, the plaintiff must show that “the state affirmatively

place[d] the individual in a position of danger the individual

otherwise would not have faced.” Wallace v. Adkins, 115 F.3d

427, 430 (7th Cir. 1997). Second, the plaintiff must show “that

the state’s failure to protect him from that danger was the

proximate cause of his injury.” First Midwest Bank v. City of

Chicago, 988 F.3d 978, 988 (7th Cir. 2021). “Finally, because the

right to protection against a state-created danger arises from

the substantive component of the Due Process Clause, the

state’s failure to protect the plaintiff must shock the

conscience.” Id. at 989.

I pause here to clarify two points pertinent to the

remainder of the discussion. First, a plaintiff bringing a state-

created danger claim need not establish that the defendant

official cut off other avenues of aid or rendered the victim

unable to help himself. We rejected that requirement in

Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998). In that case, we

rejected an argument that the state-created danger doctrine

contained an “absolute requirement that all avenues of self-

help be restricted.” Id. at 517. We stated that “a state can be

held to have violated due process by placing a person in a

position of heightened danger without cutting off other

avenues of aid.” Id.

14 No. 23-1816

The defendants invite us to reverse course and to require

a showing that the State has disabled or undermined self-help

or sources of private assistance. But it is hard to see why this

showing should be required. Even if the police (for example)

have not cut off other avenues of aid, if “the police place a

person in a situation in which he is endangered by other

private persons[,] the police in effect are their accomplices—

unwitting, but if reckless, culpable.” Slade v. Bd. of Sch. Dirs. of

Milwaukee, 702 F.3d 1027, 1030 (7th Cir. 2012). The defendants

submit that DeShaney requires this showing. However,

DeShaney made clear that it was not addressing a case in

which the State had created the danger the boy faced. It

should not be read, therefore, as imposing any particular

requirements onto such claims. Most of the other circuits have

not imposed this requirement for state-created danger claims.

See Erwin Chemerinsky, The State-Created Danger Doctrine, 23

Touro L. Rev. 1, 15–18 (2014) (surveying circuit decisions). In

short, the defendants have not provided a “compelling

reason” for overruling circuit precedent. Wilson v. Cook Cnty.,

937 F.3d 1028, 1035 (7th Cir. 2019).

The second point warranting mention relates to Officer

Roederer’s involvement in the alleged constitutional

violation. “A governmental actor may be held personally

liable only for constitutional violations in which [he]

personally participated.” Harnishfeger v. United States, 943

F.3d 1105, 1122 (7th Cir. 2019). We have previously addressed

the application of this principle to the state-created danger

context. In that context, if one officer could be held liable for

placing an individual in a position of danger, and there is

another officer who, with the requisite state of mind,

“participa[ted] in the conduct giving rise to the peril,” then

the second officer can be liable along with the first one.

No. 23-1816 15

Richman v. Sheahan, 512 F.3d 876, 885 (7th Cir. 2008); see Paine,

678 F.3d at 512 (officer could be liable under the state-created

danger doctrine when other officers arrested woman in a safe

area, the officer ignored phone calls from the woman’s

mother while the woman was in custody, and the officer

failed to return the woman’s cell phone to her before she was

released by other officers in a dangerous area); Richman, 512

F.3d at 885 (explaining that, if two officers arrest a drunk

driver and strand the passengers by taking the keys from the

ignition and then driving off, both officers can be liable under

the state-created danger doctrine, even if only one had

removed the keys).

The district court concluded that Officer Roederer was

entitled to summary judgment for the independent reason

that there was a “lack of evidence of any personal

involvement” on his part in the alleged constitutional

violations. Rakes, 2023 WL 2712370, at *18 n.8. The record does

not support this characterization. Officer Roederer played an

active role, which included persuading RJ to go to the hospital

and convincing Officer Johnson not to send him to pick up the

guns from the house. He was also present for many of Officer

Johnson’s conversations with Amylyn, including the

conversation in which Officer Johnson twice indicated that

RJ’s hospital stay would be a “24-hour thing.” Even if Officer

Roederer were not the one to tell Amylyn that RJ would be

put under a 24-hour hold, or to confirm as much, a jury could

find that he played a significant role in the alleged violation.

With these principles and clarifications in mind, I proceed

to evaluate Ms. Rakes’s state-created danger claim.

To prevail on her state-created danger claim, Ms. Rakes

first must show that the officers “placed [Amylyn] in a

16 No. 23-1816

position of danger that [s]he would not otherwise have

faced.” Wallace, 115 F.3d at 430. This means that she must

stake her claim on “an affirmative act on the part of the state,”

Stevens v. Umsted, 131 F.3d 697, 705 (7th Cir. 1997), rather than

on a mere failure to protect her from harm. See Doe v. Vill. of

Arlington Heights, 782 F.3d 911, 918 (7th Cir. 2015) (officer who

saw three men carrying intoxicated woman but did not

intervene to stop the sexual assault that ensued could not be

liable under § 1983); Windle v. City of Marion, 321 F.3d 658,

661–62 (7th Cir. 2003) (police officer who did nothing after

learning that a teacher was molesting a minor student could

not be liable under § 1983).

Ms. Rakes contends that the officers created a danger for

Amylyn by falsely telling Amylyn that RJ would be detained

at the hospital for 24 hours. Although she has not presented

evidence that directly establishes that either of the officers

made such a statement, she submits that a jury could

reasonably infer—from the department policy, Indiana law,

and the exchanges about the “24-hour thing”—that one or

both of the officers made such a statement or acquiesced in

Amylyn’s articulation of it. I agree that a jury could draw that

inference.

A jury could conclude that the officers’ alleged

misrepresentations created a danger for Amylyn that she

would not otherwise have faced. According to Ms. Rakes’s

account (which a jury would be entitled to credit), the officers

told Amylyn that they had transferred RJ to the hospital with

instructions to keep him detained for 24 hours. In this

account, Officer Johnson twice confirmed this misleading

statement with Officer Roederer standing by. The misleading

statements created a risk that Amylyn would be at the home

No. 23-1816 17

when RJ returned, angry at Amylyn and with access to his

two AR-15s. This was not a risk Amylyn otherwise faced. RJ

posed far less of a risk to her before their encounter with the

officers, and he certainly would have posed far less of a risk

to her if she had known that he was not in fact being detained.

On this record, a jury would be entitled to conclude that, if

she had known that RJ might return home that night, she

would not have returned to her home but would have gone

directly to her parents’ house. 27

Another consideration supports this conclusion. Given

Officer Johnson’s statements on the dash cam, a jury would

be entitled to conclude that, having told her that RJ would not

be returning to the home that evening, the officers tasked her

with removing the AR-15s before RJ’s return, a job that they

preferred not to undertake themselves. The record is

susceptible to the inference that the officers encouraged her to

perform this task so that they would not have to be bothered

or endangered. A jury would be entitled to conclude that she

not only returned to her home under false assurances of her

safety but also based on the officers’ encouragement to secure

the weaponry present there prior to RJ’s return.

Judge Brennan’s opinion argues that, given the troubled

state of the Slaymaker marriage, the officers did not leave

Amylyn any worse off than they had found her. Fairly read,

the record supports, and a jury would be entitled to conclude,

that Amylyn was hardly left in the situation that she had

experienced throughout her troubled marriage to RJ. The

27 Although Judge Brennan’s opinion recites several times that the

evidence must be interpreted in the light most favorable to the Estate, it

does not apply that rule with any consistency.

18 No. 23-1816

record makes clear that a chronically bad marital situation

had now escalated to a crisis level where the parties not only

had irreconcilable differences but could not remain under the

same roof without the possibility of deadly violence. More

than anyone, the officers understood that the residual discord

of the past had reached a new and dangerous level that

implicated not only the couple but their children and others

such as Amylyn’s former husband. They urged her to seek the

protection of the courts against further unwanted contact

with RJ. They also urged her to abandon her efforts to seek

help for RJ and to make her safety and that of her children her

primary objective. Amylyn, at least by the end of her time

with the officers, understood that she faced a new and more

dangerous situation. She made it clear that she would not

return to the home if RJ might be there. She went back to the

home to collect the AR-15s only on the misrepresentation of

the officers that RJ would not be there.

Ms. Rakes next must show that the officers’ conduct

proximately caused Amylyn’s death. Proximate cause in this

context is “a fact specific inquiry, involving a consideration of

time, geography, range of potential victims, and the nature of

harm that occurred.” Buchanan-Moore v. Cnty. of Milwaukee,

570 F.3d 824, 829 (7th Cir. 2009). In this case, the officers and

Amylyn expressly discussed the danger that RJ posed to her

that night, at the home the two of them shared, if RJ had access

to his guns. Indeed, Officer Johnson expressly anticipated

that, if RJ were allowed to go voluntarily to the hospital, “the

next thing you know, you’re back at the house, fighting, guns

involved and stuff like that.” 28 This case is nothing like cases

28 R.67-3 at 1:00:22-28; R.67-4 at 71.

No. 23-1816 19

in which courts have held that a lack of proximate cause

defeated a state-created danger claim. See, e.g., Martinez v.

California, 444 U.S. 277, 285 (1980) (parole board members

could not be liable under § 1983 when someone they paroled

committed a random murder five months later, because the

death was “too remote a consequence” of their parole

decision); Buchanan-Moore, 570 F.3d at 828–29 (victim of

random burglary at hands of mentally ill man prematurely

released from jail did not have a valid § 1983 claim). A

reasonable jury could certainly find that Ms. Rakes has

established proximate cause for purposes of the state-created

danger doctrine.

Ms. Rakes also must show that the officers’ conduct was

“so egregious, so outrageous, that it may fairly be said to

shock the contemporary conscience.” Cnty. of Sacramento v.

Lewis, 523 U.S. 833, 847 n.8 (1998). “[W]hen the circumstances

permit public officials the opportunity for reasoned

deliberation in their decisions,” we will “find the official’s

conduct conscience shocking when it evinces a deliberate

indifference to the rights of the individual.” King v. E. St.

Louis, 496 F.3d 812, 819 (7th Cir. 2007). “‘[D]eliberate

indifference’ is a stringent standard of fault, requiring proof

that a municipal actor disregarded a known or obvious

consequence of his actions.” Bryan Cnty. v. Brown, 520 U.S.

397, 410 (1997). The parties have assumed that deliberate

indifference is the proper standard for this case; we will not

challenge that assumption.

A jury could reasonably find that the officers were aware

of the risk that, if RJ were not detained that night and Amylyn

went back to her house, RJ would use his guns to hurt or kill

her. The officers knew that RJ was drunk and unstable.

20 No. 23-1816

Amylyn told them that he was hitting her and about the

threats he was making, and she showed Officer Johnson the

alarming texts that RJ sent her just beforehand. Further,

Amylyn and the officers discussed at multiple junctures the

issue of the AR-15s at Amylyn and RJ’s house. Officer

Roederer even acknowledged the danger posed by RJ’s access

to those AR-15s when he said that he would not want to

confiscate them himself if RJ were not detained. Amylyn’s

questions to the officers about the “24-hour thing” also

support an inference that the officers were aware of the

specific risk. She asked those questions in response to the

question of whether she was going to her and RJ’s house that

night—indicating to the officers that her decision about where

to go depended on whether RJ would be detained.

A jury could also reasonably find that the officers acted

with deliberate indifference to the danger I have just

described. Of all of the options the officers had, they seem to

have chosen the one most dangerous to Amylyn: letting RJ go,

but nonetheless leading Amylyn to believe that he had been

detained. If that is what the officers did, a jury could conclude

that they did so because it was safest and most convenient for

them. Placating RJ and lying to Amylyn spared the officers

from having to deal with the two of them anymore. It also

spared the officers from needing to do the paperwork that

presumably would have followed an arrest or civil

commitment, which was something Officer Johnson twice

told RJ he wanted to avoid. In addition, if they did mislead

Amylyn, doing so helped them avoid the hassle and potential

danger of removing the AR-15s from her and RJ’s house. The

record clearly allows a jury to conclude that Amylyn agreed

to undertake that task without the officers’ help only because

they lulled her into believing that RJ would be detained while

No. 23-1816 21

she completed the task. As Judge Brennan’s opinion

emphasizes, the officers were at the scene for more than

ninety minutes. But the evidence also would allow a jury to

find that, during those ninety minutes, they deliberately

manipulated the resolution of the encounter to relieve

themselves of further work, even though that self-interest

exposed Amylyn to a new and immediate danger. The

evidence of deliberate indifference, considered in totality, is

sufficient to present to a jury for evaluation.

The defendants maintain that, even if Ms. Rakes has

established a triable state-created danger claim, they are

nonetheless entitled to qualified immunity. “Qualified

immunity attaches when an official’s conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” City of Escondido v.

Emmons, 586 U.S. 38, 42 (2019) (quoting Kisela v. Hughes, 584

U.S. 100, 104 (2018) (per curiam)). “A clearly established right

is one that is ‘sufficiently clear that every reasonable official

would have understood that what he is doing violates that

right.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per curiam)

(quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

A plaintiff can demonstrate that a right is clearly

established in several ways, one of which is by identifying a

“closely analogous case finding the alleged violation

unlawful.” Stockton v. Milwaukee Cnty., 44 F.4th 605, 620 (7th

Cir. 2022). The case must be “controlling,” Ashcroft v. al-Kidd,

563 U.S. 731, 741 (2011) (quoting Wilson v. Layne, 526 U.S. 603,

617 (1999)), which for our purposes means that it came from

the Supreme Court or this court. Lovett v. Herbert, 907 F.3d 986,

992 (7th Cir. 2018). The case need not be “directly on point,”

Kisela, 584 U.S. at 104 (quoting White v. Pauly, 580 U.S. 73, 79

22 No. 23-1816

(2017) (per curiam)), and it need not have held that “the very

action in question” was unlawful, Anderson v. Creighton, 483

U.S. 635, 640 (1987). But it “must have placed the statutory or

constitutional question beyond debate,” Kisela, 584 U.S. at 104

(quoting White, 580 U.S. at 79), and “in the light of pre-existing

law the unlawfulness” of the official’s conduct must be

“apparent,” White, 580 U.S. at 80 (quoting Anderson, 483 U.S.

at 640).

Ms. Rakes primarily relies on Monfils v. Taylor, supra. In

that case, an informant told the police about a theft at his

workplace, in a call that the police recorded. 165 F.3d at 513.

The informant called again later on, and he told the

department’s deputy chief that he feared that he would be

killed or badly hurt if the recording of the call were released.

Id. at 514–15. The informant asked the deputy chief multiple

times whether the police planned to release the recording,

and each time the deputy chief told him it would not be

released. Id. But the department did release it, and the thief

obtained it and killed the informant soon afterwards. Id. at

515.

We held that the deputy chief could be liable under § 1983

and that he was not entitled to qualified immunity. Critically,

we did so, not because the deputy chief was somehow

responsible for the recording’s release, but because he falsely

represented to the informant and others that the recording

would not be released. We explained: “[The deputy chief]

clearly created a danger and, by assuring Hitt (the assistant

district attorney) that he would make sure the tape was not

released but not following through, he created a danger

Monfils would not otherwise have faced.” Id. at 518. For this

No. 23-1816 23

reason, we concluded that the deputy chief “is not and never

was entitled to qualified immunity.” Id.

Monfils rendered it clearly established in this circuit that a

police officer can be liable under the state-created danger

doctrine if he recklessly and repeatedly lies to a person about

the danger that person faces from an identified and violent

third party. Respectfully, this core holding of Monfils remains

good law, despite the defendants’ and the statements in Judge

Brennan’s opinion to the contrary. To be sure, there is dicta in

an earlier decision of ours suggesting that Monfils “may well

have been superseded by” Town of Castle Rock v. Gonzales, 545

U.S. 748 (2005). Sandage v. Bd. of Comm’rs of Vanderburgh Cnty.,

548 F.3d 595, 599 (7th Cir. 2008). That speculation was, and is,

raw dicta and its cold reception by our colleagues in other

circuits confirms its unreliability. 29

The officers’ conduct in this case, viewed in the light most

favorable to Ms. Rakes, falls squarely within that

constitutional prohibition. Indeed, this case presents a more

egregious situation than the one presented in Monfils. The

officers, acutely aware of the danger that Amylyn would face

if she were alone at her house with RJ, nevertheless told her

to remove RJ’s arsenal before his return. Yet, Officer Roederer

29 See Robinson v. Lioi, 536 Fed. App’x 340, 345 & n.3 (4th Cir. 2013)

(concluding that state-created danger claims were not “foreclosed by

Castle Rock” because the Supreme Court did not have before it a

substantive due process claim); Caldwell v. City of Louisville, 200 Fed. App’x

430, 435 (6th Cir. 2006) (“There is nothing in Castle Rock that compels a

conclusion the Supreme Court intended to eliminate the state-created

danger exception to the DeShaney rule. This is not surprising since the

Court did not have occasion to address or consider the plaintiff’s

substantive due process claim as it was not before the Court.”).

24 No. 23-1816

himself admitted that he was not willing to remove RJ’s AR-

15s from the house unless RJ were detained. Taking the facts

in the light most favorable to Ms. Rakes, the officers, although

aware that RJ might return to the home at any time, falsely

assured Amylyn that he would be absent for 24 hours and

that, during that time, she should secure RJ’s weapons, a task

that they were unwilling to undertake because of its

dangerousness. In other words, taking the facts in the light

most favorable to the nonmoving party, a finder of fact would

be entitled to conclude that the officers repeatedly lied to

Amylyn about whether they had placed RJ under a mental

health hold and told her to retrieve dangerous weapons while

knowing that she might well confront RJ as she did so.

Amylyn acted on these misrepresentations and,

consequently, died at RJ’s hand. On this record, the

defendants are not entitled to qualified immunity.

A reasonable jury could find the defendants liable on

Ms. Rakes’s state-created danger claim, and the defendants

are not entitled to qualified immunity. Accordingly, I would

reverse the district court’s judgment and remand the case for

proceedings consistent with this opinion.

No. 23-1816 25

BRENNAN, Circuit Judge.

Amylyn Slaymaker’s murder at the hands of her husband,

RJ Slaymaker, is tragic. Her death was the culmination of a

long-term abusive relationship in which RJ subjected her to

his wrath, threats, and physical violence. Charlestown, Indi-

ana Police Department Officers Te’Juan Johnson and Jonathan

Roederer responded to the last occasion of domestic violence

before Amylyn’s murder. The case against Officer Johnson is

remanded for a jury to decide whether he should be held lia-

ble for Amylyn’s death.

The legal doctrine underpinning the alleged liability—the

state-created danger doctrine—has narrow requirements that,

in my evaluation, the undisputed evidence here cannot meet.

Even more, that evidence entitles the officers to qualified im-

munity because they did not violate Amylyn’s clearly estab-

lished constitutional rights. On these grounds, I would affirm

the district court’s decision to grant summary judgment to the

officers.

I. Background

The per curiam opinion provides the relevant facts, but to

me two points require greater emphasis. First, RJ victimized

Amylyn with pervasive violence for months before the offic-

ers arrived that night. Second, the officers stayed with Am-

ylyn for over ninety minutes, continuously reassessing the sit-

uation to seek a safe resolution for all the involved parties. I

restate the facts pertinent to these points because, in my view,

they differ somewhat from the majority opinion’s recitation.

Amylyn was in constant danger for months before she was

killed. As she explained to the officers, violence and domestic

strife had recently defined her marriage with RJ. Over the last

26 No. 23-1816

six to eight months they had been fighting daily. RJ had con-

stantly abused Amylyn. He had even shot a firearm at her “a

couple of times” and had been drinking heavily. Amylyn sug-

gested that they separate, but RJ, continuing his pattern of

cruelty, rebuffed those suggestions with threats of suicide.

Fearing for her life, just nine days before her murder, Am-

ylyn wrote a letter to authorities in case “something hap-

pen[ed] to” her. 1 In the letter she documented RJ’s abuse—he

had previously tried to choke her to death and threatened to

kill her and her children. She also explained that she shot RJ

in the hand in self-defense. The next day she added to the let-

ter, in which she wrote, “RJ did it again … he threatened me.

… [H]e made me hold his hand [and] try to get me to help

shoot him in the head. 2

As for the officers’ actions that night, from the time they

arrived on the scene, they were constantly talking with Am-

ylyn and RJ, collecting new information, and correcting their

course of action. Their response was to one of the most fluid

and dangerous scenarios for law enforcement: domestic vio-

lence.

When the officers arrived to investigate, they separated RJ

from Amylyn because of the report of a firearm. Roederer de-

tained and spoke with RJ, while Johnson spoke with Amylyn.

Amylyn described what caused the reported fight: RJ had

PTSD, was intoxicated, and had threatened to kill her and her

children. She also told Johnson she had two guns in her purse.

RJ told a different story. He reported that he was a veteran,

1 Dist. Ct. DE 67–17 at 1. The officers did not know about this letter.

2 Id. at 2.

No. 23-1816 27

Amylyn did not want him to leave the house because she did

not want him to be charged with driving under the influence,

their fight was not physical, and he did not pull his gun.

The officers met, discussed what they had been told, and

then spoke with Amylyn. She disputed some of RJ’s state-

ments. She said RJ had pulled his gun, pistol-whipped her,

and attempted to punch her in the face just five minutes be-

fore the officers arrived. She said she grabbed her guns be-

cause RJ threatened her children and ex-husband that night,

even going so far as to send her photos of him driving toward

her children’s location. Amylyn also explained that RJ was

irate because she did not do “sexual stuff” (what turned out

to be arranged sexual interactions with strangers). Johnson

did not see any bruises or marks on Amylyn at that time. He

also encouraged Amylyn to leave RJ, go to court, file for a di-

vorce, and seek an emergency protective order.

Johnson and Roederer decided they could not charge RJ

with a crime (including driving under the influence or public

intoxication) because of the inconsistencies in the Slaymakers’

statements and the lack of visible, physical injury to Amylyn.

But they agreed to take RJ’s and Amylyn’s guns for safekeep-

ing.

Amylyn informed Johnson that there were more guns at

her and RJ’s residence, including two AR-15s, and she asked

if Johnson could retrieve them. The two discussed the possi-

bility of Amylyn staying at her parents’ home for the night.

But Amylyn was concerned that leaving RJ alone would result

in him attempting to destroy their house. Meanwhile,

Roederer told RJ that he would not be charged, he would need

a ride home, and they were taking his handgun for safekeep-

ing until he sobered up.

28 No. 23-1816

The officers were uncomfortable with the idea of taking RJ

back to the home, picking up the AR-15s, and taking them

back to the police station, in light of Amylyn’s revelation that

RJ previously “tried to burn the house down.” The two agreed

to take RJ to the police station, take Amylyn home to retrieve

the guns, and then to take RJ home while Amylyn went to her

parents.

Amylyn again raised her fear that RJ would burn down

their house if left alone. Johnson tried to convince Amylyn not

to return to the home she shared with RJ. Johnson reminded

her, “a home can be replaced. Your life can’t.” He advised her

to go to court, get a no-contact order, file for divorce, and split

up from RJ. And Johnson went so far as to caution her that if

their kids were present, child protective services would get

involved and “[her] kids are going to be taken away.”

After Amylyn mentioned that, to her knowledge, RJ had

never had a mental health evaluation, Roederer explained the

process for obtaining a mental inquest warrant. Johnson also

asked Amylyn to share a photo she mentioned of RJ holding

a gun to his head. Roederer and Johnson then returned to RJ.

When the officers mentioned the photo and a voluntary

admission for medical treatment to RJ, he became irate and

worried about the loss of his gun rights. Eventually, Johnson

convinced RJ to agree to talk to somebody confidentially.

Johnson told RJ that he needed to “follow through” with their

agreement, and that if things escalated again, he would have

to turn over the photo. Johnson relayed the agreed upon mes-

sage to Emergency Medical Services (EMS) that RJ was in-

volved in a domestic dispute with his wife and wanted to vol-

untarily speak about his mental health issues. EMS then trans-

ported RJ to Clark Memorial Hospital at 12:43 A.M. RJ arrived

No. 23-1816 29

at the emergency department roughly fifteen minutes later.

He remained there until his discharge at 3:41 A.M.

After EMS took RJ from the scene, Johnson asked Amylyn

if she was going to her parents’ house. Amylyn responded,

“Well, you – you said it’s a 24-hour thing right? For an evalu-

ation?” Johnson replied, “Yeah, so what are you going to do?”

Johnson explained that they took RJ’s gun and were going to

leave Amylyn’s guns with her. One final time, Johnson and

Amylyn discussed her plan for the rest of the night:

Johnson: [W]hat’s the plan? Like, what --

Amylyn: I’m going to have to stay with my par-

ents, I guess.

Johnson: Okay. So are you going to go to your

house?

Amylyn: Well, tonight, yeah.

Johnson: Are you going to –

Amylyn: You said it’s a 24 hour?

Johnson: Yea. So are you going to get the guns

and everything when you go home?

Amylyn: Yeah, I’m going to take them with me

to my parents’.

About half an hour later, Amylyn called Johnson to report she

found a visible injury where RJ had hit her. Johnson told her

to come to the police station, where he could take a picture of

the injury. Consistent with his earlier directions, he again

asked Amylyn to retrieve the AR-15s and stay at her mother’s

house. At the station Amylyn again asked how long RJ would

be at the hospital. The officers present, including Johnson,

30 No. 23-1816

informed her that they did not know, and Johnson again di-

rected her to take the opportunity to gather her things and go

to her parents’ house. When asked if she was going to go to

her parents’ house, Amylyn reportedly stated “yes.”

Amylyn never made it to her parents’ house. Sometime af-

ter the hospital discharged RJ, he returned home, murdered

Amylyn, and then killed himself.

Amylyn’s Estate filed suit against the officers, bringing

claims under 42 U.S.C. §§ 1983 and 1985. Relevant here, the

Estate’s § 1983 claim alleges the officers “affirmatively placed

Amylyn in a heightened state of special danger that [she]

would not otherwise have faced when they falsely told Am-

ylyn that RJ would be in the hospital for 24 hours and it was

safe to return home.”

The officers moved for summary judgment. The district

court granted the officers’ motion and dismissed both claims.

On the Estate’s § 1983 claim, the court found qualified im-

munity shielded the officers from liability because “there was

not clearly established law in effect … that put Officers

Roederer and Johnson on notice that their actions violated

Amylyn’s constitutional rights.”

The Estate now appeals the dismissal of its § 1983 claim at

summary judgment, offering two arguments. First, the Estate

argues the facts satisfy the narrow criteria to succeed on a

state-created danger claim under DeShaney v. Winnebago, 489

U.S. 189 (1989), and subsequent authorities. Second, the Estate

asserts qualified immunity is not available because “it was

clearly established that misleading victims about violent

threats” violates the victims’ due process rights.

No. 23-1816 31

II. State-Created Danger

I do not see the undisputed evidence giving rise to a viable

DeShaney state-created danger claim.

The Fourteenth Amendment’s Due Process Clause pro-

vides that “[n]o State shall … deprive any person of life, lib-

erty, or property, without due process of law.” U.S. CONST.

amend. XIV, § 1. This language “is phrased as a limitation on

the State’s power to act, not as a guarantee of certain minimal

levels of safety and security.” DeShaney, 489 U.S. at 195. That

is, the Due Process Clause is meant “to protect the people

from the State, not to ensure that the State protect[s] them

from each other.” Id. at 196. Generally, “a State’s failure to

protect an individual against private violence simply does not

constitute a violation of the Due Process Clause.” Id. at 197.

This court does recognize two exceptions to this general rule:

(1) the “special relationship” exception; and (2) the “state-cre-

ated danger” exception. See Doe v. Village of Arlington Heights,

782 F.3d 911, 916 (7th Cir. 2015); Monfils v. Taylor, 165 F.3d 511,

516 (7th Cir. 1998).

The state-created danger exception “exists when the state

affirmatively places a particular individual in a position of

danger the individual would not have otherwise faced.” Doe,

782 at 916 (cleaned up). But it is a “narrow one,” and applies

in “rare and often egregious” circumstances “where the state

creates or increases a danger to an individual.” Id. at 917.

Our court has recognized three principles to guide the in-

quiry. First, “the state, by its affirmative acts, must create or

increase a danger faced by an individual.” King v. E. St. Louis

Sch. Dist. 189, 496 F.3d 812, 818 (7th Cir. 2007). “Second, the

failure on the part of the state to protect an individual from

32 No. 23-1816

such a danger must be the proximate cause of the injury to the

individual.” Id. “Third, … the state’s failure to protect the in-

dividual must shock the conscience.” Id. If no basis exists in

the record to support any of these requirements, a plaintiff

cannot make out a state-created danger claim as a matter of

law.

Roederer and Johnson did not act affirmatively to create

or increase danger to Amylyn, proximately cause Amylyn’s

death, or act in a manner that shocks the conscience.

A. Create or Increase Danger

The Estate argues that the officers “created a danger” for

Amylyn by informing her that RJ would be detained for

twenty-four hours and concealing information from EMS that

would have resulted in a statutory mental evaluation.

The first principle of our circuit’s state-created danger

analysis is “the key one.” Sandage v. Bd. of Comm’rs of Vander-

burgh Cnty., 548 F.3d 595, 599 (7th Cir. 2008). We must be wary

of interpreting this principle “so broadly as to erase the essen-

tial distinction between endangering and failing to protect” to

avoid circumventing DeShaney’s general rule. Doe, 782 F.3d at

917 (quoting Sandage, 548 F.3d at 599). “Increasing” danger

means “the state did something that turned a potential danger

into an actual one, rather than that it just stood by and did

nothing to prevent private violence.” Sandage, 548 F.3d at 600.

That is, the state’s affirmative, intervening act must move the

victim from a position of safety to a position of danger. Id. at

598. Even if the action could be considered “affirmative,” “we

must then ask what new danger would have otherwise be-

fallen the victim.” Windle v. City of Marion, 321 F.3d 658, 662

(7th Cir. 2003). The burden rests on the Estate to show that the

No. 23-1816 33

officers “failed to protect [Amylyn] from a danger they created

or made worse.” Id. (emphasis in original). In many of our cases

applying the state-created danger exception, this has been the

line dividing successful and unsuccessful claims.

To synthesize, the first principle of the state-created dan-

ger exception can be viewed as a spectrum from safety to dan-

ger. The exception can provide for liability only if an officer’s

action moved the plaintiff up the scale toward danger. But li-

ability cannot attach if the officer left the plaintiff as is, or (es-

pecially) if the officer moved the plaintiff toward safety. To

me, five cases flesh out the exception. See Reed v. Gardner, 986

F.2d 1122 (7th Cir. 1993); Monfils, 165 F.3d 511; Paine v. Cason,

678 F.3d 500 (7th Cir. 2012); Windle, 321 F.3d 658; Doe, 782 F.3d

911.

Three of these cases show how law enforcement action

crosses the line into liability—Reed, Monfils, and Paine. In Reed,

this court held that police officers could face liability under

the state-created danger exception where they arrested a so-

ber driver and left an intoxicated passenger with the vehicle’s

keys, enabling the intoxicated passenger to drive from the

scene, cause a collision, and injure the plaintiffs. 986 F.2d at

1127.

In Monfils, our court concluded that the actions of a law

enforcement officer subjected him to § 1983 liability under a

state-created danger theory. 165 F.3d at 518. Monfils had in-

formed the authorities that one of his coworkers was going to

steal electrical cord from their workplace. Id. at 513. Aware of

his coworker’s desire to identify the informant, Monfils re-

peatedly—on four separate occasions over ten days—con-

tacted the Green Bay Police Department or the district attor-

ney’s office urging them not to release a recording of his call

34 No. 23-1816

to law enforcement. Id. at 513–15. Every time Monfils spoke

with a law enforcement official after his initial call, he asked

whether the recorded conversation of that call would be re-

leased. Id. On each occasion, law enforcement assured Mon-

fils the tape would not be released. Id. Despite knowing that

the tape’s dissemination would subject Monfils to danger, the

Deputy Chief of Detectives, James Taylor, did nothing to pre-

vent divulgence to the public despite Monfils’ multiple pleas

over many days. Id. at 514–15. Monfils’ coworker obtained a

copy of the tape, recognized Monfils’ voice, and, along with

five others, murdered Monfils. Id. at 513, 515.

Paine involved the arrest of a woman by law enforcement

in a safe area and her subsequent release in a dangerous area.

678 F.3d at 509. The woman—while in an acute manic phase—

was arrested at Chicago’s Midway Airport and released by

police the next day near a public housing project with an “ex-

ceptionally high crime rate.” Id. at 504. The police failed to re-

turn her cell phone, the woman did not know where she was,

and she was unwell. Id. Five hours after her release, a man

raped her at knifepoint in a nearby apartment. Id. at 505–06.

Attempting to escape, the woman jumped out the apartment’s

window, fell seven stories, and suffered severe brain damage.

Id. at 506.

In each of these cases, liability attached because the in-

volved officers “changed a safe situation into a dangerous

one,” Reed, 986 F.2d at 1127, or “created a danger [the victim]

would not have otherwise faced.” Monfils, 165 F.3d at 518.

Windle and Doe are on the other side of the liability line.

Windle evaluated whether a Marion, Indiana Police Depart-

ment sergeant violated a minor’s due process rights by failing

to intervene to protect her from molestation perpetuated by a

No. 23-1816 35

teacher. 321 F.3d at 660. The sergeant intercepted several cell

phone conversations between the minor and the teacher, the

content of which evidenced an ongoing sexual relationship.

Id. However, the sergeant did not intervene for two months.

Id. In Doe, this court affirmed a district court’s dismissal of an-

other state-created danger case. 782 F.3d at 913. An officer re-

sponded to a 9-1-1 call about a minor female drinking with a

group of teenage boys outside an apartment complex. Id. She

was intoxicated; one of the group was holding her up when

the officer arrived. Id. The officer did not check identification

(which meant he did not discover that one of the boys was an

adult on probation), called off another responding officer, and

allowed the group to leave with the girl. Id. The group then

carried the girl into the complex’s laundry room, where the

probationer sexually assaulted her. Id.

In these two cases, the state-created danger claim failed at

the affirmative act prong because the officer’s conduct did not

“proactive[ly] creat[e] or exacerbat[e] [] danger,” Windle, 321

F.3d at 662. Nor were the victims “safe, or even considerably

safer,” before the officers acted. Doe, 782 F.3d at 918. Rather,

the victims “[were] in actual danger already.” Id.

These five cases accurately set forth the requirements for

when and how an officer may act affirmatively to create or

increase danger to a plaintiff. Before an officer acts, danger to

the victim must be nonexistent or only potential. State-created

danger liability attaches only where state actors turn a nonex-

istent or potential danger into an actual one or create some

risk for the victim. Such was the case in Reed, Monfils, and

Paine. Where no new danger befalls the victim, such as in Win-

dle and Doe, state actors cannot be held liable.

36 No. 23-1816

This case is analogous to Windle and Doe and distinguish-

able from Reed, Monfils, and Paine. As in both Windle and

Doe—and unlike in Reed, Monfils, and Paine—the officers’ ac-

tions did not create a new danger to Amylyn or otherwise in-

crease an existing danger. “To create” danger means to bring

danger into existence. Likewise, “to increase” danger means

to escalate the likelihood that danger will occur. In the context

of private violence, the state must do something “that turn[s]

a potential danger into an actual one” rather than merely

standing by and doing nothing. Sandage, 548 F.3d at 600.

Johnson’s two brief replies (“yeah”/”yea”) to Amylyn’s

questions about the length of RJ’s detention did not create any

new dangers, increase the likelihood of danger, or otherwise

propel Amylyn into danger. She was already in grave danger

when the officers arrived to intervene between Amylyn and

RJ. As Amylyn herself recorded more than a week prior, RJ

had consistently abused her over the previous six to eight

months. The abuse escalated to the point where Amylyn shot

RJ in self-defense. Further, the officers left Amylyn (or at least

attempted to leave her) in a better position than she had been

on that night. By taking RJ’s gun and leaving Amylyn in pos-

session of hers, they deprived RJ of a means to escalate his

violent abuse and left Amylyn with recourse to self-defense.

For the same reasons, the officers’ statements to EMS are

not an affirmative act propelling Amylyn into danger. To the

extent the Estate argues that the affirmative act was a failure

to comply with department policies, Ҥ 1983 protects plain-

tiffs from constitutional violations, not violations of … de-

partmental regulations and police practices.” Thompson v. Chi-

cago, 472 F.3d 444, 454 (7th Cir. 2006). The officers’ failure to

follow Charlestown Police Department policy “or even a state

No. 23-1816 37

law is completely immaterial as to the question of whether a

violation of the federal constitution has been established.” Id.

My colleagues conclude that Johnson created a danger to

Amylyn that she would not have otherwise faced because the

officer’s statements escalated a risk that she would encounter

an enraged RJ at their home with ready access to two AR-15s.

This takes too narrow of a view of the undisputed facts and

of the risk Amylyn had consistently faced for a long time.

Johnson did not make new and immediately dangerous the

already incendiary circumstances between RJ and Amylyn.

The possibility of deadly violence between these spouses had

existed for many months. Choking, threats to kill, a request to

help attempt suicide—Amylyn documented all this more

than a week before the officers ever spoke with the couple.

Before his discharge from the hospital and return home, RJ

had already shot a firearm at Amylyn a couple of times, and

she had returned fire in self-defense. In advance of these of-

ficers ever entering the picture, Amylyn had described in

writing RJ’s threats, abuse, use of firearms, and her fear for

her life.

RJ created the danger, not the actions of the officers. By

telling Amylyn that RJ would be held for 24 hours, the officers

did not affirmatively act to create or increase any danger to

Amylyn. The affirmative act requirement means that “state

actors may not disclaim liability when they themselves throw

others to the lions.” Pinder v. Johnson, 54 F.3d 1169, 1177 (4th

Cir. 1995) (citing K.H. ex rel. Murphy v. Morgan, 914 F.2d 846,

849 (7th Cir. 1990)) (rejecting mother’s characterization of her

claim that officer’s false assurance—that it was safe to return

to work—and failure to charge ex-boyfriend was an affirma-

tive action resulting in her children’s death). But that

38 No. 23-1816

requirement does “not … entitle persons who rely on prom-

ises of aid to some greater degree of protection from lions at

large” to impose liability on state actors. Id. To decide other-

wise subjects “every representation by the police and every

failure to incarcerate” to liability. Id. at 1175. And it interprets

the state-created danger exception “so broadly as to erase the

essential distinction between endangering and failing to pro-

tect,” which we should not do. Sandage, 548 F.3d at 599.

Without a basis to characterize the officers’ statements to

Amylyn as affirmative actions that created or increased the

risk of danger, the inquiry could end here. See King, 496 F.3d

at 818 (affirming district court’s summary judgment ruling

based solely on one prong of the state-created danger excep-

tion). To be complete, though, I next address the exception’s

second and third prongs.

B. Proximate Cause

The state’s failure “to protect an individual from [] a dan-

ger must be the proximate cause of the injury to the individ-

ual” for DeShaney liability to attach under the state-created

danger exception. Id. The individual must be a foreseeable

victim of the government’s acts. Buchanan-Moore v. County of

Milwaukee, 570 F.3d 824, 828 (7th Cir. 2009). “To satisfy the

proximate cause requirement, the state-created danger must

entail a foreseeable type of risk to a foreseeable class of per-

sons.” First Midwest Bank, Guardian v. City of Chicago, 988 F.3d

978, 988–89 (7th Cir. 2021) (citing Buchanan-Moore, 570 F.3d at

828). “A generalized risk of indefinite duration and degree is

insufficient.” Id at 989.

Analogizing to Reed and distinguishing Buchanan-Moore,

the Estate asserts it was foreseeable that RJ would kill Amylyn

No. 23-1816 39

as a result of the officers’ actions. In Reed, proximate cause ex-

isted because “[t]he dangers presented by drunk drivers are

familiar and specific; in addition, the immediate threat of

harm has a limited range and duration.” 986 F.2d at 1127. In

Buchanan-Moore, this court held that the plaintiff failed to al-

lege facts making out proximate cause where law enforce-

ment arrested and then released a mentally unstable individ-

ual who went on to murder a resident of the north Milwaukee

suburbs. 570 F.3d at 826. Because the complaint alleged no

facts that the County knew of a special danger to the resident,

rather than the public at large, and because the unstable indi-

vidual’s “mental illness and propensity for criminal acts ex-

isted without temporal boundaries,” the plaintiff’s claim

failed. Id. at 828–29.

Like the dangers of drunk driving apparent in Reed, but

unlike the danger posed by the unstable individual in Bu-

chanan-Moore, the Estate posits “domestic violence involves a

type of risk that is familiar, specific, and limited in time and

scope to a foreseeable class of persons.” This argument is in-

correct twice over. First, though RJ’s abuse was certainly spe-

cific and limited to a foreseeable class of persons—Amylyn—

RJ’s conduct was not so limited in time and scope as the Estate

characterizes it. The undisputed facts illustrate at least six to

eight months of verbal and physical abuse accentuated by RJ’s

mercurial temper and unpredictable actions. RJ posed a gen-

eralized risk to Amylyn’s life of indefinite duration and de-

gree. As Amylyn explained in her letter, RJ’s abusive conduct

was ongoing for many months, with no discernible end in

sight, so long as Amylyn remained with RJ. And as Amylyn

herself explained to Roederer and Johnson, RJ heightened his

physical and emotional abuse whenever Amylyn raised the

40 No. 23-1816

prospect of splitting up. 3 RJ, the abuser, was exercising power

and control over Amylyn, and had done so for many months.

The officers’ representations to Amylyn or EMS were not the

cause of Amylyn’s death—RJ was.

Second, RJ’s conduct posed a danger more comparable to

that of the unstable individual in Buchanan-Moore. Again, RJ

had been perpetuating the abuse—violence; forcing Amylyn

into unwanted sexual situations with strangers; threatening

to kill her, her ex-husband, and her children; and property de-

struction—for many months. Like the unstable individual in

Buchanan-Moore, RJ’s abusive conduct had no temporal

boundaries. Therefore, the Estate cannot establish the proxi-

mate causation requirement.

C. Shock the Conscience

“Conduct … which shocks the conscience is that conduct

which may be deemed arbitrary in the constitutional sense.”

King, 496 F.3d at 818 (quotation marks omitted). Though the

inquiry is “necessarily fact-bound,” the “emphasis on

whether conduct shocks the conscience points toward the tort

law’s spectrum of liability.” Id. at 818–19. “Only conduct

3 The United States Department of Justice defines domestic violence

as “a pattern of abusive behavior … that is used by one partner to gain or

maintain power and control over another intimate partner.”

https://www.justice.gov/ovw/domestic-violence (last viewed September

25, 2024). Domestic violence is not limited to physical abuse. The underly-

ing problem is the abuser’s need to exercise power and control. “Domestic

violence can be physical, sexual, emotional, economic, psychological, or

technological actions or other patterns of coercive behavior that influence

another person within an intimate partner relationship. This includes any

behaviors that intimidate, manipulate, humiliate, isolate, frighten, terror-

ize, coerce, threaten, blame, hurt, injure, or would someone.” Id.

No. 23-1816 41

falling toward the more culpable end of the spectrum” shocks

the conscience. Id. at 819. This court has noted—though not

specifically in the state-created danger context—that such

conduct generally “involves the use of intentional force

against an individual’s person or the threat of such force.”

Robbin v. City of Berwyn, 108 F.4th 586, 591, (7th Cir. 2024) (col-

lecting cases).

This court has held that “when the circumstances permit

public officials the opportunity for reasoned deliberation in

their decisions, we shall find the official’s conduct conscience

shocking when it evinces a deliberate indifference to the

rights of the individual.” King, 496 F.3d at 819. Where officials

must make hurried judgments, “render[ing] reasoned delib-

eration impractical,” conduct shocks the conscience only

where it “approach[es] malicious or intentional infliction of

injury.” Id. Crucially, “the conduct must be more culpable

than mere negligence, which is ‘categorically beneath the

threshold of constitutional due process.’” Id. (quoting County

of Sacramento v. Lewis, 523 U.S. 833, 849 (1998); see Est. of Her v.

Hoeppner, 939 F.3d 872, 877 (7th Cir. 2019) (same); see also Dan-

iels v. Williams, 474 U.S. 327, 331 (1986) (describing the due

process guarantee as historically applying only to “deliber-

ate” actions and decisions of government officials).

The Estate argues that “[t]he combination of the passage

of time, the repeated and knowing lies, and the continued dis-

regard for Amylyn’s safety amounts to deliberate indiffer-

ence.” But the facts, viewed in the light most favorable to the

Estate, do not support that assertion. Over the course of more

than 90 minutes, the officers:

 separated and questioned Amylyn and RJ;

42 No. 23-1816

 interviewed the 9-1-1 callers;

 confiscated RJ’s gun but permitted Amylyn to keep her

firearms;

 advised Amylyn to retrieve the remaining firearms

from her house and to spend the night at her parents’

residence;

 counseled her to do what was right to protect herself

and her children; and

 encouraged her to obtain an emergency protective or-

der, twice suggested that she seek a divorce, and ad-

vised her of the process to obtain a mental inquest war-

rant.

These facts do not show the officers as deliberately indif-

ferent toward Amylyn’s personal safety and security. Their

consistent reassessment of the information they collected un-

dercuts a suggestion of deliberate indifference. For example,

once Johnson informed Roederer that RJ had previously tried

to burn the house down and the officers discussed RJ’s mental

state, they decided they would not take RJ back to the house

where the AR-15s were located.

Johnson’s affirmative responses to Amylyn’s question

about the length of RJ’s detention were at most negligent,

based on his understanding that Amylyn would go to her par-

ents’ house that night. But negligent conduct does not suffice

to meet the high bar of action that shocks the conscience. King,

496 F.3d at 819.

* * *

If the Estate cannot satisfy just one of the three elements

underlying the state-created danger exception, the officers

No. 23-1816 43

cannot be held liable. Because they did not act to create or in-

crease danger, proximately cause death, or act in a manner

that shocks the conscience, the district court’s grant of sum-

mary judgment should be affirmed.

III. Qualified Immunity

Even if the Estate could succeed on the DeShaney question,

the officers are entitled to qualified immunity because they

did not violate a clearly established right. “The doctrine of

qualified immunity protects government officials ‘from liabil-

ity for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.’” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). “Qualified immunity balances … the need to

hold public officials accountable when they exercise power ir-

responsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties rea-

sonably.” Id.

Two questions guide the qualified immunity analysis:

“first, whether the facts presented, taken in the light most fa-

vorable to the plaintiff, describe a violation of a constitutional

right; and second whether the federal right at issue was

clearly established at the time of the alleged violation.” Smith

v. Finkley, 10 F.4th 725, 737 (7th Cir. 2021). Even assuming the

officers’ actions violated Amylyn’s constitutional rights, the

federal right at issue was not clearly established at the time of

the alleged violation.

It is the Estate’s burden to demonstrate the existence of a

clearly established right at the time of the alleged violation.

See Green v. Newport, 868 F.3d 629, 633 (7th Cir. 2017). “A

44 No. 23-1816

constitutional right is clearly established if the right in ques-

tion is sufficiently clear that a reasonable official would un-

derstand that what he is doing violates that right.” Finkley, 10

F.4th at 742 (quotation marks omitted). “The clearly estab-

lished right must be defined with specificity,” id. (citing City

of Escondido v. Emmons, 568 U.S. 38, 42 (2019)) (cleaned up), a

requirement the Supreme Court has made clear “[o]ver and

over.” Weiland v. Loomis, 938 F.3d 917, 919 (7th Cir. 2019) (col-

lecting cases).

To determine whether the right is defined with the requi-

site specificity, “we analyze whether precedent squarely gov-

erns the facts at issue, mindful that we cannot define clearly

established law at too high a level of generality.” Finkley, 10

F.4th at 742 (cleaned up). “[A] defendant cannot be said to

have violated a clearly established right unless the right’s con-

tours were sufficiently definite that any reasonable official in

the defendant’s shoes would have understood that he was vi-

olating it.” Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014). “In

other words, existing precedent must have placed the statu-

tory or constitutional question confronted by the official be-

yond debate.” Id. (quotations omitted); see also Doe, 782 F.3d

at 915 (“[T]he plaintiff must demonstrate either that a court

had upheld the purported right in a case factually similar to

the one under review, or that the alleged misconduct consti-

tuted an obvious violation of a constitutional right.”). That is,

the cited precedent “must share specific details with the facts

of the case at hand.” Doxtator v. O’Brien, 39 F.4th 852, 863 (7th

Cir. 2022) (citing White v. Pauly, 580 U.S. 73, 79 (2017) (per cu-

riam)).

To the Estate, the officers violated a clearly established

right, contending “[t]here is authority within this circuit and

No. 23-1816 45

others that false promises of security are deliberately indiffer-

ent.” The Estate cites Paine; Robinson v. Township of Redford, 48

F. App’x 925 (6th Cir. 2002); Kennedy v. City of Ridgefield, 439

F.3d 1055 (9th Cir. 2006); and Irish v. Fowler, 979 F.3d 65 (1st

Cir. 2020). But these authorities do not support a conclusion

that the officers violated Amylyn’s clearly established rights. 4

My colleagues read Monfils as “render[ing] it clearly estab-

lished in this circuit that a police officer can be liable under

the state-created danger doctrine if he recklessly and repeat-

edly lies to a person about the danger that person faces from

an identified and violent third party.” I do not read Monfils to

provide such clarity.

First, Monfils is not “particularized to the facts of [this]

case.” Pauly, 580 U.S. at 79. Before the release of the tape, Mon-

fils’ identity as the informant was anonymous to his murder-

ous coworkers. The release of the tape recording unmasked

Monfils. Here, however, the officers’ actions did not strip Am-

ylyn of anonymity. She was known to RJ and the subject of his

violence well before the officers intervened.

Monfils is described as a case about reckless and repeated

lies. But here, Johnson’s statements to Amylyn about the

4 Robinson and Irish may be disposed of immediately. Robinson is an

unpublished Sixth Circuit opinion reversing a district court’s grant of a

motion to dismiss a state-created danger claim. 48 F. App’x at 925. That

court later affirmed the district court’s grant of summary judgment to the

defendant law enforcement officers, in part because they were not on no-

tice that their conduct violated a clearly established right. Robinson v.

Township of Redford, No. 04-1117, slip op. at 10–11 (6th Cir. July 20, 2005).

And the First Circuit’s Irish opinion postdates the events of this case, so it

cannot aid the clearly established inquiry. See Brosseau v. Haugen, 543 U.S.

194, 200 n.4 (2004).

46 No. 23-1816

length of RJ’s absence were negligent at most, not reckless.

His statements also were not “repeated” like the promise not

to release the tape in Monfils was repeated. See 678 F.3d at 513–

15 (four separate promises over ten days). Johnson gave two

one-word responses within a lengthy discussion, during

which the officers encouraged Amylyn to go to her parents’

house that night. And both representations were made during

a roughly ninety-minute interaction among the officers, Am-

ylyn, and RJ.

Second, Monfils rests on uncertain ground. This court has

noted that Monfils “may well have been superseded by” the

Supreme Court’s decision in Town of Castle Rock v. Gonzales,

545 U.S. 748. Sandage, 548 F.3d at 599.

In Sandage, a man named Moore murdered plaintiffs’ de-

cedents while on work release as part of a four-year robbery

sentence. Id. at 596. Twice previously, one of the decedents

contacted police to report that Moore was harassing her. Id.

The plaintiffs sued county officials “claim[ing] that the [sher-

iff’s] department’s failure to act on the complaint of harass-

ment by revoking Moore’s work-release privilege and reim-

prisoning him deprived their decedents of their lives without

due process of law.” Id.

As part of its analysis, this court looked to Castle Rock. That

case involved “police refus[ing] to enforce a domestic-abuse

restraining order, despite repeated demands by the woman

against whose husband the order was directed, and he mur-

dered the couple’s three children.” Id. at 597. Answering the

“technical question” of “whether the State of Colorado had

created a property right in the enforcement of restraining or-

ders,” id., the Supreme Court held that the answer was no.

Castle Rock, 545 U.S. at 768. Additionally, the Court noted that

No. 23-1816 47

“the benefit that a third party may receive from having some-

one else arrested for a crime generally does not trigger pro-

tections under the Due Process Clause, neither in its proce-

dural nor in its ‘substantive’ manifestations.” Id.

As this court saw, the plaintiffs’ claim in Sandage was “sim-

ilar” to that raised in Castle Rock: “that the county was consti-

tutionally required to revoke Moore’s work release and return

him to custody.” 548 F.3d at 597. It would have been the same

case as Castle Rock, “if Moore had not been serving a sentence

but had threatened [the decedent] and she had complained to

the sheriff’s department, the department had referred the

matter to the county prosecutor, and he had decided in a mis-

guided exercise of his prosecutorial discretion not to order

Moore arrested and charged.” Id.

Our court also distinguished Monfils. Unlike that case,

where “police created the mortal danger to Monfils” by re-

leasing the tape recording, in Sandage “the danger was created

by Moore, and by Moore alone.” Id. at 599. Based on that rea-

soning, the court affirmed the district court’s dismissal of

plaintiff’s suit for failure to state a claim. Id. at 600. Critically,

in its conclusion the court noted “after Castle Rock a broken

promise—the essential act of which both the plaintiff in that

case and the present plaintiffs complain (though there was

more in Monfils—the handing over the tape to the mur-

derer)—may very well not be enough.” Id. That should be

true here. The essential act identified by the Estate and the

panel majority is a false promise of security. After Castle Rock,

48 No. 23-1816

such an act likely does not dispel the protections of qualified

immunity. 5

Next, the Estate urges that Paine and this case are the same

because the officer’s misrepresentations to Amylyn made her

“more vulnerable than she otherwise would have been.” Paine

“clearly established that state actors who, without justifica-

tion, increase a person’s risk of harm violate the Constitu-

tion.” 678 F.3d at 510. But as discussed above, Paine is not suf-

ficiently analogous to this case. The officers here did not make

Amylyn more vulnerable to any danger posed by RJ. Amylyn

was in grave danger before and after the officers’ intervention.

The Estate’s reliance on Paine is also misplaced because it

flies at too high a level of generality, of which the Supreme

Court has repeatedly warned. Mullenix v. Luna, 577 U.S. 7, 12

(2015) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)); see

also City of Tahlequah v. Bond, 595 U.S. 9, 11 (2021) (per curiam);

Kisela v. Hughes, 584 U.S. 100, 104 (2018) (per curiam). Paine

does not establish a rule that would have informed the officers

5 For similar reasons, Kennedy does not help the Estate. There, a police

officer assured the plaintiff that she would be given prior notice of police

contact with the family of the boy who had been accused of molesting the

plaintiff’s daughter. Kennedy, 439 F.3d at 1058. After law enforcement of-

ficers spoke with the boy’s family about the allegations, they made the

additional assurance to the plaintiff that police would patrol their neigh-

borhood. Id. The boy broke into the home and shot the victim and her hus-

band. Id. The Ninth Circuit affirmed the district court’s recognition that

the officer in that case was not entitled to qualified immunity. But it did

so in mitigating fashion: “we do not rest our judgment that [the officer]

affirmatively created a danger on [the] assurance [that the police would

patrol the neighborhood] alone.” Id. at 1063. Though “an additional and

aggravating factor,” the assurance alone was not enough to constitute a

due process violation. Id.

No. 23-1816 49

that their affirmative response to Amylyn’s questions about

RJ’s hospitalization violated her constitutional rights. Cases

where qualified immunity has shielded more problematic law

enforcement conduct support this conclusion. See, e.g., Doe,

782 F.3d at 915, 918 (holding it not clearly established that call-

ing off another police officer, or falsely reporting to dispatch

that the scene was clear, resulted in a violation of a constitu-

tional right of a victim of private violence).

The cases the Estate cites do not place the constitutional

question beyond debate. If a constitutional right of Amylyn’s

was violated, it was not clearly established when the officers

responded to this domestic violence episode. As a result,

qualified immunity shields the officers from § 1983 liability.

IV. Conclusion

I end where I began: Amylyn was tragically murdered by

her husband RJ. The rule is that the state has no duty to pro-

tect citizens from private violence. The state-created danger

doctrine is a narrow exception to that rule. This decision

sends the case against Officer Johnson to a jury when the un-

disputed facts do not permit liability to attach under the strict

limits of this doctrine. And it does so notwithstanding the

broad protections of qualified immunity.

50 No. 23-1816

SCUDDER, Circuit Judge.

This case is difficult on many levels and, in the end, I find

myself split on the conclusions reached by my colleagues. I

agree with Judge Ripple that the claim against Officer Te’Juan

Johnson’s estate should proceed to trial. On the other hand, I

agree with Judge Brennan and the district court that qualified

immunity defeats the claim against Officer Jonathan

Roederer. Above all else, this case presents a tragic example

of the risks posed by domestic violence and the consequences

of law enforcement’s failure to appreciate those risks. No mat-

ter how many times I review the record, the same conclusion

rushes to mind: police departments ought to prioritize train-

ing on responses to domestic violence.

I

Whether the Fourteenth Amendment’s Due Process

Clause precludes state actors from creating danger to a person

remains unanswered by the Supreme Court. We know for cer-

tain state actors do not shoulder an affirmative duty to protect

individuals from dangers posed by third parties. That is the

holding of DeShaney v. Winnebago, 489 U.S. 189 (1989). But

what the Justices have yet to answer is whether the Due Pro-

cess Clause, while disallowing duty-to-protect claims, allows

a claim in facts and circumstances where state actors create

the danger that proximately causes harm to an individual.

Circuit courts have struggled with the question in DeShaney’s

wake. See, e.g., Est. of Romain v. City of Grosse Pointe Farms, 935

F.3d 485, 493–96 (6th Cir. 2019) (Murphy, J., concurring) (iden-

tifying unresolved questions about the validity of the state-

created danger doctrine).

No. 23-1816 51

Our court is among those that have recognized a claim for

state-created dangers. See, e.g., Reed v. Gardner, 986 F.2d 1122,

1127 (7th Cir. 1993); Monfils v. Taylor, 165 F.3d 511, 518 (7th

Cir. 1998); Paine v. Cason, 678 F.3d 500, 509–11 (7th Cir. 2012).

Duty bound to follow that precedent, I see it applying in dif-

ferent ways to the two officers in question.

When viewing the facts, as we must, in the light most fa-

vorable to Amylyn Slaymaker, a jury could find that Officer

Te’Juan Johnson affirmatively placed her in more danger than

she faced before law enforcement intervened. Officer Johnson

reached an agreement with Amylyn’s husband, RJ: if RJ vol-

untarily went to the hospital, Officer Johnson would not have

him committed involuntarily. But when Amylyn asked

whether her husband had been placed under a 24-hour men-

tal health hold, Officer Johnson twice answered in the affirm-

ative. Knowing that Amylyn planned to go home, Officer

Johnson’s misrepresentations—the false sense of safety he

conveyed—created a risk that Amylyn would be at the house

and caught off-guard when RJ returned and had access to his

AR-15s. This is not a risk Amylyn would have faced had she

known RJ was free to leave the hospital at a time of his own

choosing.

To violate clearly established law—the second prong of

the qualified immunity analysis—“existing precedent must

have placed the statutory or constitutional question beyond

debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). I agree

with Judge Ripple that our decision in Monfils supplies the

relevant precedent here. Monfils clearly established that a po-

lice officer can be liable under the state-created danger doc-

trine if he makes false promises about the danger a person

faces from an identified and violent third party. See 165 F.3d

52 No. 23-1816

at 518. Like the officer’s false assurances to Thomas Monfils,

Officer Johnson’s false assurances rendered Amylyn more

vulnerable to a danger than she otherwise would have been

had he told her the truth. With these findings available to a

jury, Officer Johnson is not entitled to qualified immunity and

the suit against his estate should proceed.

But not so for Officer Roederer. The record shows that his

actions did not add to the risk of harm already created by Of-

ficer Johnson. Officer Roederer made no representations to

Amylyn regarding how long her husband would be in the

hospital or whether it was safe for her to return home. Yes,

Officer Roederer was present for Officer Johnson’s conversa-

tions with both Amylyn and RJ. But his failure to correct any

representations Officer Johnson made to Amylyn is insuffi-

cient because “mere inactivity by police does not give rise to

a constitutional claim.” Rossi v. City of Chicago, 790 F.3d 729,

735 (7th Cir. 2015). And Officer Roederer’s statements to RJ

merely repeated back the arrangement Officer Johnson had

previously contrived about going to the hospital voluntarily.

The evidence of Officer Roederer’s personal involvement

falls short of allowing a jury to find that he created a danger

to Amylyn. Even if his acts or omissions contributed to her

tragic death, no jury could reasonably conclude that he put

Amylyn in a position of danger she would not have otherwise

faced or that his actions violated a clearly established right.

Indeed, on issues of qualified immunity, close calls go to the

defendant. See Kikumura v. Turner, 28 F.3d 592, 597 (7th Cir.

1994) (underscoring that “the point of qualified immunity…is

that government officials are not, as a rule, liable for damages

in close cases”). So I agree with Judge Brennan that qualified

immunity shields Officer Roederer from liability.

No. 23-1816 53

II

This case should sound the equivalent of a five-alarm fire

for police departments to the risks of domestic violence. In my

view, Officer Johnson’s response to what he encountered dur-

ing the early morning hours of July 19, 2019 remains shocking

in the extreme. When you read the facts, you can see the tragic

ending coming from a mile away with about 100% certainty.

No doubt domestic violence incidents are among the most

challenging circumstances that police officers encounter. And

federal judges are in no position to advise police departments

on how best to respond to 911 reports of domestic violence.

But respond they must. And this case shows just how a police

officer can take an already dangerous situation and make it

worse—fatally so. The district court got it right when observ-

ing that a case like this should cause police departments to

reevaluate their training related to domestic violence encoun-

ters. Under no circumstance should a law enforcement officer

act in a way that escalates the danger faced by someone in the

vulnerable and trapped position that Amylyn Slaymaker

found herself. See Br. of Amicus Curiae Everytown for Gun

Safety and the Indiana Coalition Against Domestic Violence

in Support of Pl.-Appellant, ECF No. 15 (collecting social sci-

ence research on the risk factors of domestic violence).

Judge Brennan’s opinion emphasizes that Amylyn was in

grave danger before the officers intervened. I could not agree

more. Amylyn endured ongoing, violent abuse at the hands

of her husband for many months. Nobody could plausibly say

that RJ did not pose a serious threat to Amylyn’s life on July

19. While accurate, that observation is incomplete and in no

way resolves the question before us.

54 No. 23-1816

It was Officer Johnson’s response that escalated the risk to

Amylyn’s life. He agreed to allow RJ to voluntarily go to the

hospital while affirmatively misleading Amylyn about that

fact. A jury could easily find that Officer Johnson’s duplicity

left her vulnerable to new risk—more immediate and acute

risk. These circumstances existed because of Officer Johnson’s

actions: yes, Amylyn was in an abusive marriage, but she had

no idea that Officer Johnson had cut a deal with RJ that would

allow him to return home in less than 24 hours, find her there

alone, and murder her with one of the guns known to be in

the house.

If the state created danger doctrine reflects sound law, it

fits this case to a T: a jury could find that Officer Johnson re-

sponded to the undeniably difficult situation he encountered

on July 19 by putting Amylyn at a very high risk of losing her

life. The case against Officer Johnson’s estate should go to

trial.