Estate of Phillips v. District of Columbia

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2006 Decided August 1, 2006

No. 03-7060

ESTATE OF ANTHONY SEAN PHILLIPS, SR.,

LYSA LAMBERT PHILLIPS, PERSONAL REPRESENTATIVE OF THE

ESTATE OF ANTHONY SEAN PHILLIPS, SR., DECEASED,

INDIVIDUALLY AND MOTHER AND NEXT BEST FRIEND OF

ARZEL SHAMAR PHILLIPS AND ANTHONY SEAN PHILLIPS, JR.,

MINORS, ET AL.,

APPELLEES

v.

DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL.,

APPELLEES

DONALD EDWARDS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 00cv01113)

Donna M. Murasky, Assistant Attorney General, for the

District of Columbia, argued the cause for the appellant. Robert

J. Spagnoletti, Attorney General, and Edward E. Schwab,

Deputy Attorney General, for the District of Columbia, were on

brief.

2

Ralph L. Lotkin argued the cause for the appellee. Joel M.

Abramson was on brief.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: Two District

of Columbia (D.C. or District) firefighters who were injured and

the families of their two colleagues who died in a May 1999 fire

(Firefighters) brought a civil rights action against the District

and Donald Edwards, the former Chief of the D.C. Fire

Department (Department). Edwards seeks interlocutory review

of the district court’s denial of his motion to dismiss based on

qualified immunity. We conclude that the district court erred in

denying Edwards qualified immunity because the Firefighters

did not allege the violation of a clearly established constitutional

right; that is, even if Edwards’s failure to remedy the

Department’s continuing violations of standard operating

procedures amounted to conscience-shocking conduct, neither

the District nor Edwards owed the Firefighters the “heightened

obligation” required by our precedent and by the United States

Supreme Court to impose an affirmative duty to protect them

under the Due Process Clause of the Fifth Amendment.

Accordingly, we reverse the district court’s denial of Edwards’s

motion to dismiss on the qualified immunity ground.

I.

Shortly after midnight on May 30, 1999, D.C. firefighters

responded to a multi-alarm townhouse fire at 3146 Cherry Road

N.E.1 Firefighter Anthony Sean Phillips Jr. entered the first

1

We take the background facts from the allegations of the

complaint. See Wagener v. SBC Pension Benefit Plan, 407 F.3d

395, 401 (D.C. Cir. 2005) (on review of dismissal, we “accept[] the

3

floor with Lieutenant Frederick Cooper, the officer in charge of

his engine company. Soon after entering the townhouse the two

were separated and Cooper exited the building without Phillips.

Meanwhile Lieutenant Charles Redding and firefighters Joseph

Morgan and Louis J. Matthews, all three from a different engine

company, also entered the burning building, unaware that

Phillips and Cooper were inside. Battalion Chief Damian Wilk,

the Incident Commander initially in charge of coordinating the

Department’s efforts at the site, relied on a portable radio device

rather than the stronger-signal mobile radio mounted in his

vehicle that he could have used had he established a fixed

command post. Wilk radioed Redding twice to locate his

position but Redding, inside the house, never received the

transmission. Soon another fire truck arrived and began

ventilating the townhouse’s basement by breaking the rear

basement sliding glass door.2 The truck improperly conducted

the ventilation, resulting in a sudden temperature increase inside

the structure. Superheated gases from the fire shot up the

basement stairway to the first floor. Redding, still on the first

floor and in the gases’ path, ran out of the house, his face and

back burning. He told Battalion Chief Wilk that Matthews was

still in the townhouse, unaware that Morgan and Phillips were

still inside as well. Wilk did not order a rescue effort until 90

factual allegations made in the complaint as true and giv[e] plaintiffs

the benefit of all inferences that can reasonably be drawn from their

allegations”).

2

Ventilation is the process by which firefighters remove a fire’s

byproducts (such as heat, smoke and gas) to make a frontal attack on

the fire itself. It usually involves breaking out closed windows in the

burning structure, tearing out walls and, when a fire reaches the

structure’s top floor, cutting holes in its roof. Webster’s Third New

International Dictionary 2541 (8th ed. 1981).

4

seconds later, when Morgan exited the house suffering from

severe burns. Seven minutes after the rescue effort began

firefighters found Phillips severely burned and unconscious.

Four minutes later they found Matthews in a similar state.

Phillips died of his injuries 23 minutes after his removal from

the townhouse. Matthews died of his injuries the following day.

Morgan and Redding survived but suffered severe injuries.

One year later Morgan, Redding and Phillips’s and

Matthews’s families filed separate civil rights actions under 42

U.S.C. § 1983 (section 1983) against the District, Edwards3 and

three other Department officials, including Wilk and Cooper.4

The Firefighters argued Edwards was deliberately indifferent to

his duty to ensure that the Department complied with its own

standard operating procedures (SOPs) and that his deliberately

indifferent conduct deprived the Firefighters of their

“constitutionally protected liberty, interests in life, personal

security [and] bodily integrity” and of “substantive due process

of law.” Phillips 1st Am. Compl. ¶ 79, Joint Appendix (JA) 65;

Redding 1st Am. Compl. ¶ 28, JA 87. The Firefighters relied

on, inter alia, the Department’s Reconstruction Report on the

3

Edwards was sued in both his individual capacity as Department

chief and in his official capacity, i.e., as the Department. Phillips

1st Am. Compl. ¶ 26, reprinted at Joint Appendix (JA) 47; Redding

1st Am. Compl. ¶ 10, JA 83. See Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state official in

his or her official capacity is not a suit against the official but rather

is a suit against the official’s office. As such, it is no different from

a suit against the State itself.” (internal citations omitted)).

4

The district court consolidated the four Firefighters’ cases.

Subsequently the plaintiffs voluntarily dismissed their claims against

Wilk. See Estate of Phillips v. District of Columbia, 355 F. Supp.

2d. 212, 213 n.2 (D.D.C. 2005); see also infra note 6.

5

Cherry Road fire (Cherry Road report) that described numerous

SOP violations that, they claimed, caused their respective

injuries and deaths, including the Department’s failure to follow

equipment backup and maintenance procedures, its failure to

ventilate the townhouse properly and to coordinate personnel,

Cooper’s failure to maintain required contact with and to locate

Phillips and the Department’s failure to supply sufficient

personnel to the scene. See Phillips 1st Am. Compl. ¶ 44, JA 53.

The Firefighters also claimed that another report completed

before the Cherry Road fire, namely an internal Reconstruction

Report on the 1997 death of firefighter John Carter in a grocery

store fire (Carter report), gave the defendants notice of the

Department’s failure to follow SOPs. The Cherry Road report

noted that the deficiencies in training, staffing, equipment and

administration identified in the Carter report persisted and

declared that “the Department must no longer tolerate the notion

that SOPs and proper fireground behaviors are only important

for ‘major’ fires and not as important for ‘routine’ fires.” Id. ¶

44, JA 53 (quoting Cherry Road report). The Firefighters

claimed that the Department’s “policy and custom not to

implement recommendations to improve operation of the

[Department] or to enforce [SOPs] was conscious, knowing, and

deliberate and not the result of simple or negligent oversight

made under emergency, spur of the moment conditions without

either the opportunity or time for deliberation” and, as such, was

“an affirmative election of a specific course of action.” Id. ¶ 65,

JA 62. Regarding Edwards, the Firefighters alleged that he was

required to comply with the “operational mandates of the D.C.

Fire Department,” and his failure to do so constituted a “de facto

policy and custom of the District of Columbia of a deliberate

indifference to such matters,” id. ¶ 64, JA 61–62. Edwards’s

conduct was “egregious and shock[ed] the conscience” and

constituted “deliberate indifference to the [Firefighters’] clearly

established rights.” Id. ¶¶ 67, 68, JA 62.

6

The District moved to dismiss the Firefighters’ complaint

under Federal Rule of Civil Procedure 12(b)(6), arguing that it

failed to state a claim under section 1983. See Def. District of

Columbia’s Mot. to Dismiss Pl.’s Am. Compl., D.D.C. No. 00-

cv-01113, R. Doc. 39. Edwards joined the District’s motion and

also asserted his qualified immunity from suit in his individual

capacity.5 See Notice of Filing, D.D.C. No. 00-cv-01113, R.

Doc. 52. The district court denied the motion, Estate of Phillips

v. District of Columbia, 257 F. Supp. 2d 69 (D.D.C. 2003)

(Phillips I), concluding the Firefighters stated a substantive due

process claim against the defendants. Because the Carter report

had put the Department on notice of the “serious consequences

that could result” from Edwards’s deliberate indifference to the

enforcement of the Department SOPs, the court held that their

complaint alleged conscience-shocking behavior under County

of Sacramento v. Lewis, 523 U.S. 833, 847 (1998) (conscience-

shocking conduct violates substantive due process). Phillips I,

257 F. Supp. 2d at 79. It also denied Edwards qualified

immunity in light of his “ongoing failure to institute corrective

training or to follow [the Department’s] own rules even after the

scathing reviews contained in a number of safety reports.” Id.

at 80. Based on the Carter report it was fair to assume, the

district court stated, that Edwards and the other Department

officials “had advance notice of the fatal pattern and practice of

SOP violations within the Fire Department.” Id. The court also

concluded that the right to be free from “conscience-shocking

executive action” was “clearly established” at the time of the fire

because “the potential for deliberate indifference to [rise] to

5

A government official sued in his individual capacity is shielded

from personal liability in a 1983 action if, at the time he acted, the

constitutional right allegedly violated was not “clearly established.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987); Barham v.

Ramsey, 434 F.3d 565, 572 (D.C. Cir. 2006).

7

such a level as to shock the conscience has been repeatedly

recognized.” Id.

After the district court decided Phillips I, we issued two

qualified immunity decisions, International Action Center v.

United States, 365 F.3d 20 (D.C. Cir. 2004) (IAC), and

Fraternal Order of Police v. Williams, 375 F.3d 1141 (D.C. Cir.

2004) (FOP). The district court sua sponte ordered the parties

to address the impact of those decisions on the Phillips I

decision but, after reviewing the parties’ pleadings, it declined

to modify it. Estate of Phillips v. District of Columbia, 355 F.

Supp. 2d 212 (D.D.C. 2005) (Phillips II). In IAC we reversed a

district court decision denying qualified immunity to District

police supervisory personnel for their alleged failure to properly

train and supervise their officers, finding the district court’s

analysis “failed to link the likelihood of particular constitutional

violations to any past transgressions, and failed to link these

particular supervisors to those past practices or any familiarity

with them.” IAC, 365 F.3d at 27. In Phillips II the district court

distinguished IAC, however, contrasting the claim there which,

according to the court, was “too general to support the plaintiffs’

theory of liability,” to the Cherry Road and Carter reports which

put the defendants “on notice of specific circumstances and

problems that, if not addressed, were almost certain to result in

injury or death.” Phillips II, 355 F. Supp. 2d at 217, 218

(emphases in original).6 The district court also found FOP

distinguishable. In FOP correctional officers alleged that the

District was deliberately indifferent to their safety and therefore

violated their substantive due process right when it increased the

6

The Firefighters did, however, voluntarily dismiss Cooper from

the litigation in light of IAC because he neither knew of nor was

responsible for deficient training and enforcement. Phillips II, 355

F. Supp. 2d. at 218 n.4.

8

inmate population at its Central Detention Facility while

reducing the number of correctional officers assigned there. We

found that the officers did not state a claim under section 1983

because the District’s decision to take those actions was a

“rational policy choice made amid competing resource demands

and in the context of outside pressures,” including another

facility’s closing and cuts in appropriations. Id. at 221 (citing

FOP, 375 F.3d at 1142). Here, the Firefighters alleged that the

District and Edwards “did nothing because they simply did not

care,” id. at 222, and if that allegation were true, the district

court found, “this deliberate indifference continues to shock this

Court’s conscience and nothing in the FOP decision persuades

this Court that its previous conclusion is flawed.” Id.

The district court read another aspect of the FOP decision

as “present[ing] a more difficult obstacle” to the

Firefighters—our statement that the “lower threshold” for

meeting the shock the conscience test by showing deliberately

indifferent as opposed to intentional conduct “applies only in

‘circumstances where the State has a heightened obligation

toward the individual.’ ” Id. at 222, 220 (quoting FOP, 375 F.3d

at 1145–46). The FOP decision gave as an example of the type

of claimant owed a “heightened obligation” a prison inmate, as

distinguished from a corrections officer, to whom the state owed

no heightened obligation under Washington v. District of

Columbia, 802 F.2d 1478 (D.C. Cir. 1986). FOP, 375 F.3d at

1146 (citing Washington, 802 F.2d at 1482). Despite the

Firefighters’ status as voluntary public employees, however, the

district court applied the heightened obligation requirement

because, under D.C. Code § 5-407(a), they were not free to

resign their positions “without the mayor’s permission and one-

month’s notice.” Phillips II, 355 F. Supp. 2d. at 222. Given this

restriction on District firefighters’ ability to resign, the district

court found “the firefighter’s employment comes closer to the

heightened obligation standard than would the more common at-

9

will, voluntary employment situation.” Id. Edwards filed an

interlocutory appeal of the denial of the motion to dismiss on the

qualified immunity ground. See Mitchell v. Forsyth, 472 U.S.

511, 530 (1985) (denial of motion for summary judgment on

qualified immunity ground immediately appealable); IAC, 365

F.3d at 23 (“[W]e have jurisdiction to hear interlocutory appeals

from denials of qualified immunity—‘to the extent that [the

denial] turns on an issue of law.’ ” (quoting Mitchell, 472 U.S.

at 530) (alteration in original)).

II.

Qualified immunity under section 1983 shields a state or

local official from personal liability unless his action violated a

“clearly established statutory or constitutional right[] of which

a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982). “A court evaluating a claim of

qualified immunity must first determine whether the plaintiff

has alleged the deprivation of an actual constitutional right at

all.” Wilson v. Layne, 526 U.S. 603, 609 (1999) (quoting Conn

v. Gabbert, 526 U.S. 286, 290 (1999)); see also Lewis, 523 U.S.

at 841 n.5 (same).7 Our review of the district court’s legal

conclusions is de novo. Butera v. District of Columbia, 235

F.3d 637, 647 (D.C. Cir. 2001).

7

See Lewis, 523 U.S. at 841 n.5 (“[T]he generally sound rule of

avoiding determination of constitutional issues does not readily fit the

situation presented here; when liability is claimed on the basis of a

constitutional violation, even a finding of qualified immunity requires

some determination about the state of constitutional law at the time

the officer acted.”); cf. Kalka v. Hawk, 215 F.3d 97–99 (D.C. Cir.

2000) (assuming arguendo violation of constitutional right to decide

qualified immunity issue).

10

In determining whether a plaintiff states a substantive due

process claim, the United States Supreme Court has “always

been reluctant to expand the concept of substantive due process

because guideposts for responsible decisionmaking in this

unchartered area are scarce and open-ended.” Collins v. City of

Harker Heights, 503 U.S. 115, 125 (1992) (citing Regents of

Univ. of Mich. v. Ewing, 474 U.S. 214, 225–226 (1985)). It is

therefore important, the Court went on, “to focus on the

allegations in the complaint to determine how petitioner

describes the constitutional right at stake and what the city

allegedly did to deprive her . . . of that right.” Id. To constitute

a substantive due process violation, the defendant official’s

behavior must be “so egregious, so outrageous, that it may fairly

be said to shock the contemporary conscience.” Lewis, 523 U.S.

at 847 n.8; Collins, 503 U.S. at 128 (only most egregious official

conduct can be “arbitrary in a constitutional sense”); Butera, 235

F.3d at 651 (requirement that state action be sufficiently

egregious to shock conscience “exists to differentiate

substantive due process, which is intended only to protect

against arbitrary government action, from local tort law”). As

we noted in FOP, “the conscience-shock inquiry is a ‘threshold

question’ ‘in a due process challenge to executive action.’ ”

FOP, 375 F.3d at 1145 (quoting Lewis, 523 U.S. at 847 n.8).

Conscience-shocking conduct that violates due process usually

takes the form of affirmative state action. See, e.g., Rochin v.

California, 342 U.S. 165, 172–73 (1952) (officers entering

appellant’s home without warrant, tackling him to ground and

pumping his stomach against his will shocks conscience); Norris

v. District of Columbia, 737 F.2d 1148, 1151 (D.C. Cir. 1984)

(corrections officers’ brutal and habitual beatings of prisoner

shocks conscience).

If the plaintiff alleges that the government official failed to

act, however, he must show that the official was at least

deliberately indifferent to his constitutional rights. See Collins,

11

503 U.S. at 117; City of Canton v. Harris, 489 U.S. 378, 390

(1989) (city must exhibit deliberate indifference toward

individual in its custody before he can bring § 1983 claim based

on its failure to train officers). Deliberate indifference must still

be conscience-shocking in order to state a substantive due

process claim; however, as noted earlier, the “lower threshold

for meeting the shock the conscience test by showing

deliberately indifferent as opposed to intentional conduct applies

only in circumstances where the State has a heightened

obligation toward the individual.” FOP, 375 F.3d at 1145–46

(quotation marks omitted).

The Firefighters assert that their complaint is based on

affirmative state action and, alternatively, on deliberate

indifference, arguing that Edwards’s conduct in not following

Department SOPs and not providing adequate training

constituted the adoption and implementation of a conscience-

shocking government custom or policy.8 See Appellee’s Br. 8–9

8

Edwards’s argument that the Firefighters’ action amounts to a

claim that the Department failed to provide a safe work environment

falls wide of the mark. Appellant’s Br. 17. If this were the sole

basis of the Firefighters’ complaint, Edwards would be correct under

our holding in Washington and the Supreme Court’s holding in

Collins that there is no constitutional right to a safe workplace. In

Washington, for example, we held that a corrections officer’s

allegation that the District’s failure to correct unsafe prison

conditions that led to his being beaten by an inmate did not state a

substantive due process claim because even a “reckless failure” to

remedy unsafe working conditions is not a constitutional violation.

Washington, 802 F.2d at 1481–82. Likewise in Collins, the Supreme

Court rejected the plaintiff’s argument that the municipality violated

its employee’s substantive due process right when he died, allegedly

as the result of the municipality’s failure to train and equip its

employees working in city sewers. Even though the plaintiff

12

(“From the very beginning, the Firefighters have alleged two

independent bases for the Court to find conscience-shocking

governmental conduct.”). Nevertheless their complaint accuses

Edwards of inaction rather than action. See Phillips 1st Am.

Compl. ¶ 96, JA 71 (“[Edwards] deliberately and knowingly

failed to follow . . . established mandatory Standard Operating

Procedures . . .”), id. ¶ 68, JA 62 (“The custom and policy of

Defendant District of Columbia constituted deliberate

indifference to the clearly established rights of the Plaintiff

Firefighters.”); id. ¶ 67, id. (“The conduct and attitude of the

Defendant District of Columbia by virtue of years of notice and

opportunity to reduce firefighter risk by ignoring warnings of

operational failings, was egregious and shocks the conscience

because of, inter alia, the special relationship Defendant District

“alleged that a prior incident had given the city notice of the risks of

entering the sewer lines and that the city had systematically and

intentionally failed to provide the equipment and training required by

a Texas statute,” Collins, 503 U.S. at 117–18 (footnote omitted), the

Court affirmed the dismissal. Because the claimant had not alleged

that the city acted willfully, the Supreme Court read the complaint to

allege, inter alia, that “the Federal Constitution imposes a duty on

the city to provide its employees with minimal levels of safety.” Id.

at 126. The Court rejected this notion because “[n]either the text nor

the history of the Due Process Clause supports petitioner’s claim that

the governmental employer’s duty to provide its employees with a

safe working environment is a substantive component of the Due

Process Clause.” Id. at 126. The Firefighters, however, charge

Edwards with conscience-shocking conduct, not with the failure to

provide a safe workplace. See Phillips 1st Am. Compl. ¶¶ 67, 68,

JA 62 (Edwards’s conduct was “egregious and shock[ed] the

conscience” and constituted “deliberate indifference to the

[Firefighters’] clearly established rights.”). See Appellee’s Br. 6–8.

13

of Columbia has with its firefighters and their reliance upon the

D.C. Fire Department not to institute a policy of deliberate

indifference regarding their safety.”). Both times the

Firefighters’ complaint was before it, the district court treated it

as alleging deliberate indifference rather than affirmative state

action; in Phillips II, it applied the FOP heightened obligation

requirement based on deliberate indifference. See Phillips II,

355 F. Supp. 2d at 222; see also Phillips I, 257 F. Supp. 2d at 79

(holding “plaintiffs in the present instance have sufficiently

alleged that the government violated their substantive due

process rights by acting with deliberate indifference”). The

Firefighters’ arguments before us are similar—that Edwards

violated their rights by not acting.9 See, e.g., Appellee’s Br. 3

(“The Firefighters seek to hold Chief Edwards individually

responsible for these subject deaths and injuries on the theory

that he was deliberately indifferent. . . .”). Fairly read, the

Firefighters’ complaint alleges that Edwards failed to act and

therefore deliberate indifference is the standard we apply.

Because deliberate indifference requires a “lower threshold”

showing than does an affirmative act, we insist that only if the

“special circumstances” of a special relationship exist can a

“State official’s deliberate indifference . . . be truly shocking.”

FOP, 375 F.3d at 1146 (internal quotation marks omitted); see

9

Despite the Firefighters’ claim that Smith v. District of

Columbia, 413 F.3d 86 (D.C. Cir. 2005), holds that a policy of

inaction “is typically an affirmative act,” in that case we

characterized the District’s failure to set standards or train employees

as “a policy of deliberate indifference.” Smith, 413 F.3d at 98

(emphasis added). We also considered whether a special relationship

existed between the plaintiff and the District, see id. at 93, an

unnecessary inquiry if Smith had in fact been an affirmative act

rather than a failure to act case.

14

also Butera, 235 F.3d at 651 (“lower threshold [for meeting the

shock the conscience test by showing deliberately indifferent as

opposed to intentional conduct] is appropriate in circumstances

where the State has a heightened obligation toward the

individual”) (citing Lewis, 523 U.S. at 851).10 Here the district

court found that Edwards owed the Firefighters a heightened

obligation because of D.C. Code § 5-407(a), which restricts their

ability to terminate their employment. Phillips II, 355 F. Supp.

2d at 222 (in requiring firefighter to give one month’s notice or

obtain Mayor’s permission before resigning, section 5-407(a)

created a relationship “closer to the heightened obligation

standard than would the more common at-will, voluntary

employment situation”). On appeal the Firefighters attempt to

buttress the district court’s finding by pointing to two additional

code sections that allegedly restricted their liberty and therefore

created a special relationship between them and the District:

D.C. Code § 5-410, which forbids firefighters from leaving the

District unless on a leave of absence, and D.C. Code § 5-105.08,

in effect at the time of the Cherry Road fire but no longer in

force, which required firefighters to reside within the District.

See Appellee’s Br. 17. None of these restrictions, individually

or collectively, constitutes a deprivation of liberty by the District

sufficient to establish a special relationship.11

10

It is true that in Butera we found that under the “State

endangerment” theory discussed there, “something less than physical

custody may suffice to present a substantive due process claim.”

Butera, 235 F.3d at 651. This language, however, appeared in the

context of an alleged due process violation based on affirmative

action rather than deliberate indifference.

11

Moreover, the restrictions relied on by the district court to

distinguish a firefighter’s situation from conventional at-will

employment are not imposed; rather, a firefighter agrees to them as

15

In DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189 (1989), the Supreme Court described the

special relationship necessary to assert a section 1983 claim

based on a failure to act. There social workers personally

observed the injuries a father inflicted on his child; the man later

beat his son so severely that the child suffered permanent

injuries. The child and his mother brought a section 1983 claim

conditions of employment. Other circuits have rejected state-

enforced restrictions on an individual’s freedom that are voluntarily

assumed as imposing a heightened obligation on the state. In Walton

v. Alexander, 44 F.3d 1297 (5th Cir. 1995), for example, the Fifth

Circuit, sitting en banc, found no special relationship between the

state and the plaintiff, a student at a state-supported residential

school, and the school’s superintendent could therefore not be found

individually liable under section 1983 on a deliberate indifference

theory for a classmate’s sexual assault of the plaintiff. Even though

the plaintiff lost a “substantial measure of his freedom” because of

the residential school’s restrictions, he attended the school “through

his own free will (or that of his parents) without any coercion by the

state”; his “willful relinquishment of a small fraction of liberty is

simply not comparable to that measure of almost total deprivation

experienced by a prisoner or involuntarily committed mental

patient.” Id. at 1304–05. “[O]nly when the state, by its affirmative

exercise of power, has custody over an individual involuntarily or

against his will does a special relationship exist between the

individual and the state.” Id. at 1303 (emphasis in original)

(quotation marks omitted); see also de Jesus Benavides v. Santos,

883 F.2d 385, 388 (5th Cir. 1989) (no special relationship between

plaintiff corrections officers injured by inmates during escape attempt

and state because officers “enlisted, on terms they found satisfactory,

and . . . were free to quit whenever they pleased”) (quoting

Washington) (cited in Walton).

16

against the Winnebago County Department of Social Services,

claiming that its social workers had violated the child’s

substantive due process right. The Court rejected her claim,

concluding that “[i]f the Due Process Clause does not require the

State to provide its citizens with particular protective services,

it follows that the State cannot be held liable under the clause for

injuries that could have been averted had it chosen to provide

them.” Id. at 196–97. The DeShaney Court nevertheless found

that “when the State by the affirmative exercise of its power so

restrains an individual’s liberty that it renders him unable to care

for himself, and at the same time fails to provide for his basic

human needs,” such as in the custodial context if the state

restrains a person from acting on his own behalf, a “special

relationship” exists which gives rise to an affirmative duty to

protect that person. Id. at 200–02.12

In the public employment context, we have consistently

rejected imposing a heightened employer–to–employee

obligation because of the absence of a state-imposed restraint on

liberty. In FOP, we cited Washington’s language distinguishing

a prison inmate from a corrections officer:

Prison guards, unlike the prisoners in their charge, are not

held in state custody. Their decision to work as guards is

voluntary. If they deem the terms of their employment

12

In the failure to act context, at least one circuit has concluded

that a special relationship does not exist without custody. See, e.g.,

Pinder v. Johnson, 54 F.3d 1169, 1175 (4th Cir.), cert. denied, 516

U.S. 994 (1995) (because custody—element the Supreme Court made

“the crux of the special relationship rule”—was lacking, plaintiff did

not allege the violation of a clearly established constitutional right

and officer entitled to qualified immunity).

17

unsatisfactory, e.g., if salary, promotion prospects, or

safety are inadequate, they may seek employment

elsewhere. The state did not force [the plaintiff] to become

a guard, and the state has no constitutional obligation to

protect him from the hazards inherent in that occupation.

FOP, 375 F.3d at 1146 (citing Washington, 802 F.2d at 1482).

In Washington, the plaintiff corrections officer alleged that it

was District prison authorities’ deliberate indifference to the

dangerous conditions allowing his beating to occur—not the

prisoners who beat him—that caused the constitutional harm.

See Washington, 802 F.2d at 1479. In FOP, the corrections

officers claimed that District officials, “by increasing the

number of inmates at the Jail while decreasing the number of

correctional officers there, affirmatively subjected correctional

officers to an increased likelihood of inmate assaults,” thereby

violating their due process rights. FOP, 375 F.3d at 1142.

Because no special relationship existed between the state and

the officers in either case, however, action the District did not

take could not be the basis of a due process violation. Id. at

1146–47; Washington, 802 F.2d at 1481–82. See also Wallace

v. Adkins, 115 F.3d 427, 429–30 (7th Cir. 1997) (“[T]he risk of

a job reprimand, or even firing, operates as a practical constraint

on a person’s actions, [but] this is still a far cry from the

custodial settings that normally give rise to a special duty on the

state’s part”; “prison guards ordered to stay at their posts are not

in the kind of custodial setting required to create a special

relationship for 14th Amendment substantive due process

purposes”); Walker v. Rowe, 791 F.2d 507, 511 (7th Cir. 1986).

The Firefighters counter that they do not claim

constitutional protection from inherent hazards, as did the

corrections officers in FOP, but from Edwards’s deliberate

indifference to the known need to institute training and to

implement and enforce mandatory safety procedures. This

18

circumstance, they argue, was not inherent to their profession

but rather constituted “avoidable state-created additional risks

of injury” unknown to the Firefighters when they joined the

Department. Appellees’ Br. 18 (emphasis added). Washington,

however, rejected the theory that a failure to act that increases

the plaintiff’s risk of harm constitutes conscience-shocking

action. In Washington the plaintiff corrections officer made

similar claims, pointing to “overcrowding of prisoners, paucity

of guards, inadequate procedures for searching prisoners and

their cells for weapons, and inadequate procedures for

identifying and isolating prisoners with known violent

tendencies.” Washington, 802 F.2d at 1479. His complaint

alleged that the District officials’ “reckless failure . . . to remedy

unsafe conditions at the reformatory” increased the officer’s

exposure to the hazard that eventually caused him harm; we

nonetheless found the harm—a severe beating—“inherent in

[his] occupation.” See id. at 1479, 1482. As in Washington,

Edwards’s deliberate indifference may have increased the

Firefighters’ exposure to risk, but the risk itself—injury or death

suffered in a fire—is inherent in their profession. As both

Washington and FOP make clear, the District is not

constitutionally obliged by the Due Process Clause to protect

public employees from inherent job-related risks. Washington,

802 F.2d at 1479; FOP, 375 F.3d at 1146; see also Collins, 503

U.S. at 128 (in absence of allegation of conscience-shocking

conduct “we have previously rejected claims that the Due

Process Clause should be interpreted to impose federal duties

that are analogous to those traditionally imposed by state tort

law. The reasoning in those cases applies with special force to

claims asserted against public employers because state law,

rather than the Federal Constitution, generally governs the

substance of the employment relationship”) (internal citations

omitted).

19

The Firefighters point to a recent case of ours, Smith v.

District of Columbia, 413 F.3d 86 (D.C. Cir. 2005), as a holding

counter to our bright-line application of the custody

requirement. In Smith, an unidentified assailant murdered a

seventeen-year-old who was living in the Queenstown

Apartments residential complex as part of a program for

delinquent youth. We affirmed a jury verdict finding the

District liable for the resident’s death under section 1983,

holding that the District had a heightened obligation to the

resident and thereby had an affirmative duty to protect him, a

duty which the jury reasonably concluded the District had

breached by its conscience-shocking deliberate indifference to

his safety. Emphasizing the Smith victim’s relative freedom of

movement yet restricted place of residence (similar to the

restraints the D.C. Code provisions allegedly placed on them),

the Firefighters claim that Smith supports their contention that

a heightened obligation can exist absent custody. But in Smith

we found that the District had a heightened obligation because

its in loco parentis status significantly restrained the victim’s

liberty. See Smith, 413 F.3d at 95 (resident legally bound to

participate in program and live at site it provided; “[h]e could

not have gone elsewhere even if, for example, he felt threatened

by his roommate or his neighbors”); id. at 94 (“Because the

District, rather than [his] family, had primary legal control over

him, the District had legal responsibility for his daily care.”); id.

(resident “had more freedom than a prisoner—subject to

[program] rules, he could come and go, and take [program]-

approved weekend home visits. . . . But such flexibility hardy

amounts to freedom from state restraints. [He] had to live at

Queenstown Apartments. He had no choice.”). The restrictions

on his liberty—imposed on him by the District—are plainly

distinguishable from those restrictions the D.C. Code imposes

on the Firefighters’ liberty—restrictions voluntarily assumed by

20

the Firefighters as conditions of employment by the

Department.

The facts here, like those in DeShaney, are indeed tragic.

Joseph Morgan and Charles Redding suffered severe injuries

and Anthony Phillips and Louis Matthews died attempting to

save the lives and property of others. But the Constitution does

not provide a basis for holding Edwards individually

responsible.13 The Firefighters have not alleged the deprivation

of a clearly established constitutional right and Edwards is

therefore entitled to qualified immunity from suit in his

individual capacity. Accordingly, we reverse the district court’s

denial of Edwards’s motion to dismiss based on qualified

immunity and remand for further proceedings consistent with

this opinion.

So ordered.

13

This is not to say that state law tort claims are not available to

the Firefighters. Indeed, their consolidated complaints include

pendent causes of action for wrongful death and intentional tortious

conduct. See, e.g., Phillips 1st Am. Compl. ¶ 87, JA 67–68. In

addition, as the District Court pointed out, while the District of

Columbia Police and Firefighters Retirement and Disability Act,

D.C. Code §§ 4–601-34, generally provides “ ‘the exclusive remedy

against the District of Columbia for uniformed personnel’ injured in

the performance of their duties,” it does not preclude an intentional

tort claim brought against a public official. Phillips I, 257 F. Supp.

2d at 83–84 (quoting Vargo v. Barry, 667 A.2d 98 (D.C. 1995)).