Victoria Weiland v. Shawn Loomis

In the

United States Court of Appeals

For the Seventh Circuit

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No. 18-2054

VICTORIA WEILAND and DEANNA CHRONES,

Plaintiffs-Appellees,

v.

SHAWN LOOMIS,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17 C 6111 — Amy J. St. Eve, Judge.

____________________

ARGUED SEPTEMBER 6, 2019 — DECIDED SEPTEMBER 18, 2019

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Before EASTERBROOK, KANNE, and BRENNAN, Circuit Judg-

es.

EASTERBROOK, Circuit Judge. Tywon Salters, a pretrial de-

tainee in Kane County, Illinois, swallowed some cleaning

fluid, apparently in an effort to commit suicide. He was tak-

en to Delnor Community Hospital for treatment. Guards

were instructed to keep him shackled. Shawn Loomis, one of

those guards, disobeyed that order when Salters claimed

that he needed to use the bathroom. Salters grabbed

2 No. 18-2054

Loomis’s gun and escaped. While Salters terrorized the

Hospital’s staff, patients, and visitors, Loomis ran away and

hid. Salters took nurses hostage at gunpoint and assaulted

two of them. After three hours a SWAT team cornered Salters

and killed him. This appeal arises from claims under 42

U.S.C. §1983 by two persons at the Hospital who were

frightened but not physically injured. (Other claims have

been sebled.)

The defendants in the suit include Loomis, Kane County

(which employed Loomis as a correctional officer), Delnor

Hospital, and Apex3 Security, LLC, which the Hospital hired

to provide security for its premises. The appeal, however,

concerns only Loomis, who moved to dismiss the complaint

on the ground of qualified immunity. A public employee is

entitled to immunity in §1983 litigation unless, at the time of

the events in question, “clearly established” law would have

made apparent to any public employee that his or her acts

violated the Constitution. See, e.g., Escondido v. Emmons, 139

S. Ct. 500 (2019). Loomis argued that it had not been (and

still is not) clearly established that permibing a prisoner to

escape violates the Constitution. He relied principally on

DeShaney v. Winnebago County Department of Social Services,

489 U.S. 189 (1989), which holds that the Constitution, as a

charter of negative liberties, does not require the govern-

ment to protect the public from private predators—and it

was Salters, not Loomis, who inflicted plaintiffs’ injuries.

The district judge first held that the complaint presents a

valid claim for liability under what has come to be called the

“state-created danger exception” to DeShaney. Does I–IV v.

Kane County, 308 F. Supp. 3d 960, 967–71 (N.D. Ill. 2018).

Under this doctrine, the judge wrote, a public employee is

No. 18-2054 3

liable for increasing the danger to which other persons are

exposed. Loomis did not create danger by transferring Salt-

ers to the Hospital; that decision was made by others. So too

was the decision that Loomis carry a weapon in a situation

that posed a risk if he lost control of his sidearm. But Loomis

did increase the danger by removing Salters from his shack-

les, negligently permibing him to get the gun, and running

away. Plaintiffs do not allege that Loomis intended harm to

the Hospital’s staff, patients, and visitors—he appears, in-

stead, to be a feckless coward—but the district judge thought

that negligence leading to bystanders’ danger could support

liability. Then, and for essentially the same reasons, the

judge rejected Loomis’s immunity defense. Id. at 971–73. The

“state-created danger exception” is established in the Sev-

enth Circuit, the judge observed, and it should have been

obvious to any guard that armed prisoners must not be

turned loose in hospitals. That was enough, the judge wrote,

to make the right “clearly established.”

The problem with this reasoning is that it starts and ends

at a high level of generality. The “state-created danger ex-

ception” to DeShaney does not tell any public employee what

to do, or avoid, in any situation. It is a principle, not a rule.

And it is a principle of liability, not a doctrine (either a

standard or a rule) concerning primary conduct. For that one

must look elsewhere, but the district judge did not do so.

Nor have the plaintiffs.

Citing decisions of this circuit, the district court under-

stood the “state-created danger exception” to DeShaney as

equivalent to a constitutional rule prohibiting any act, by

any public official, that increases private danger. If that were

so, however, then DeShaney itself is wrongly decided. Joshua

4 No. 18-2054

DeShaney was removed from his father’s custody and hospi-

talized as a result of injuries. Joshua’s stepmother reported

that Randy DeShaney, Joshua’s father, regularly abused him

physically. After deliberation, state child-welfare officials

decided to return Joshua to his father. Randy then beat and

permanently injured Joshua. No one could have doubted

that the child-welfare officials’ decision increased Joshua’s

danger, compared with his safety in the hospital—indeed,

that increase was the foundation of his claim for damages—

but the Supreme Court nonetheless held that the Due Pro-

cess Clause of the Fourteenth Amendment does not require a

state to protect its residents from private violence. Other

courts cannot create an “exception” to DeShaney that contra-

dicts this principle, and as a result we cannot treat the “state-

created danger exception” as a rule of primary conduct for-

bidding any acts by public officials that increase private

dangers. (We have a few words toward the end of this opin-

ion about what the “exception” might mean.)

Over and over, the Supreme Court has held that a right is

“clearly established” only if it has been “defined with speci-

ficity.” Escondido, 139 S. Ct. at 503. See also, e.g., Kisela v.

Hughes, 138 S. Ct. 1148, 1152–53 (2018); District of Columbia v.

Wesby, 138 S. Ct. 577, 590 (2018); White v. Pauly, 137 S. Ct. 548,

552 (2017); San Francisco v. Sheehan, 135 S. Ct. 1765, 1775–76

(2015); Mullenix v. Luna, 136 S. Ct. 305, 308 (2005); Carroll v.

Carman, 574 U.S. 13, 16–17 (2014); Wood v. Moss, 572 U.S. 744,

757–58 (2014); Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014);

Stanton v. Sims, 571 U.S. 3, 5–6 (2013); Reichle v. Howards, 566

U.S. 658, 664 (2012); Brosseau v. Haugen, 543 U.S. 194, 198

(2004). These decisions, and more, tell us that a high level of

generality won’t do.

No. 18-2054 5

The district judge resisted the conclusion that “state-

created danger” is too general by observing that Loomis’s

proposal—something like a case establishing how guards

must prevent being overpowered by prisoners in hospitals

during bathroom breaks—would be too particular. 308 F.

Supp. 3d at 972. By insisting on a case identical to the one at

hand, public employees could insulate themselves from lia-

bility, for every case differs in some respect from its prede-

cessors. We agree with the district judge that a search for

identity is not required and would be a fool’s errand. A prin-

ciple can be clearly established without matching a later

case’s facts. The search is for an appropriate level of generali-

ty, not the most particular conceivable level. And the level of

generality is appropriate when it establishes the rule in a

way that tells a public employee what the Constitution re-

quires in the situation that employee faces. See, e.g., Mul-

lenix, 136 S. Ct. at 308–09 (citing other cases).

Consider this possible rule: “The Constitution (through

the Due Process Clause) requires guards to prevent prison-

ers from escaping.” Loomis had to know that keeping Salters

under control was his responsibility as a maber of Illinois

law and his employer’s instructions; this hypothetical rule

would have told him that the Constitution, too, requires this.

It would not be necessary for the rule to say anything about

hospitals, or toilets, or how strong a prisoner may be. But

this is only a hypothetical, because other litigants have ar-

gued that the Constitution requires guards to prevent es-

capes, and every appellate court that has considered the pos-

sibility has rejected it as incompatible with DeShaney. See,

e.g., Rios v. Del Rio, 444 F.3d 417 (5th Cir. 2006); Davis v. Ful-

ton County, 90 F.3d 1346 (8th Cir. 1996). See also Common-

wealth Bank & Trust Co. v. Russell, 825 F.2d 12 (3d Cir. 1987)

6 No. 18-2054

(same outcome before DeShaney). It is not possible to say that

a constitutional obligation to keep a prisoner under control

has been “clearly established” when every appellate court

that has addressed the question has held that the proposed

obligation does not exist.

Because “clearly established” law does not support the

§1983 claim against Loomis, we need not decide whether we

agree with these decisions. See Pearson v. Callahan, 555 U.S.

223, 231–43 (2009). But it is apt to add that we also have not

approved the district court’s view that the complaint states a

good constitutional claim. Plaintiffs allege that Loomis was

incompetent, but the Due Process Clause generally does not

condemn official negligence. See Daniels v. Williams, 474 U.S.

327 (1986). Plaintiffs depict themselves as frightened but not

otherwise injured, and, even in the law of torts, negligent

actors are not liable for conduct that threatens bodily harm

but produces only emotional distress. Restatement (Second) of

Torts §436A (1965). And then there is DeShaney.

In recent years the “state-created danger exception” has

been treated as if it were a rule of common law. It has been

elaborated and turned into a “three-part test”:

First, the state, by its affirmative acts, must create or increase a

danger faced by an individual. Second, the failure on the part of

the state to protect an individual from such a danger must be the

proximate cause of the injury to the individual. Third, the state’s

failure to protect the individual must shock the conscience.

Johnson v. Rimmer, No. 18-1321 (7th Cir. Aug. 30, 2019), slip

op. 23, quoting from King v. East St. Louis School District, 496

F.3d 812, 817–18 (7th Cir. 2007) (internal citations and quota-

tion marks deleted). None of these elements has its prove-

nance in DeShaney.

No. 18-2054 7

Every once in a while, a court should step back and ask

whether local jurisprudence matches the instructions from

higher authority. If taken literally, the approach that Johnson

abributes to King would have justified liability in DeShaney.

The Justices themselves saw the maber differently. They

hinted that the Constitution might support liability when a

state has a duty that “arises not from the State’s knowledge

of the individual’s predicament or from its expressions of

intent to help him, but from the limitation which it has im-

posed on his freedom to act on his own behalf.” 489 U.S. at

200. That is why the Constitution requires the state to supply

prisoners with medical care and protect them from each oth-

er; having disabled resort to self-help (or to the market in

private services), the state must provide a substitute. Several

decisions in this circuit find liability outside of prisons when

the state has disabled or undermined self-help or sources of

private assistance. See, e.g., Paine v. Cason, 678 F.3d 500, 510–

11 (7th Cir. 2012); Reed v. Gardner, 986 F.2d 1122 (7th Cir.

1993). Those cases have a footing in DeShaney that the “three-

part test” lacks.

Other circuits have their own approaches. Estate of Ro-

main v. Grosse Pointe Farms, 2019 U.S. App. LEXIS 24164 (6th

Cir. Aug. 14, 2019), discusses the “three-part test” (with parts

different from those of Johnson and King) that the Sixth Cir-

cuit uses to evaluate claims of state-created danger. Judge

Murphy filed a concurring opinion, 2019 U.S. App. LEXIS

24164 at *14–23, questioning whether the Sixth Circuit’s ap-

proach can be reconciled with DeShaney and suggesting that

it be refocused on the question whether the state has im-

paired the plaintiff’s powers of self-help or ability to obtain

help from others. All three members of the panel joined this

opinion, making it an alternate majority opinion.

8 No. 18-2054

Estate of Romain did not need to decide whether the Sixth

Circuit’s approach should be revised, just as we do not need

to decide whether Johnson and King are compatible with

Paine, Reed, and DeShaney. These subjects should be present-

ed for consideration in some future case, when the outcome

may turn on the difference. For now, it is enough to say that

even if Loomis is civilly and criminally liable as a maber of

Illinois law, he is entitled to qualified immunity from a claim

based on the federal Constitution, so the district court’s deci-

sion is

REVERSED.