First Midwest Bank v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-3049

FIRST MIDWEST BANK, Guardian of the Estate

of Michael D. LaPorta, a disabled person,

Plaintiff-Appellee,

v.

CITY OF CHICAGO,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 14 C 9665 — Harry D. Leinenweber, Judge.

____________________

ARGUED DECEMBER 10, 2019 — DECIDED FEBRUARY 23, 2021

____________________

Before SYKES, Chief Judge, and KANNE, Circuit Judge. 1

1The Honorable Amy Coney Barrett, Associate Justice of the Supreme

Court of the United States, was a judge of this court and member of the

panel when this case was submitted but did not participate in the

decision and judgment. The appeal is resolved by a quorum of the panel

pursuant to 28 U.S.C. § 46(d).

2 No. 18-3049

SYKES, Chief Judge. Patrick Kelly shot his friend Michael

LaPorta in the head during an argument at the end of a night

of drinking together. LaPorta’s injuries left him severely and

permanently disabled. Kelly, a Chicago police officer, was

off duty and not acting under color of state law at the time of

the shooting. LaPorta nevertheless sued the City of Chicago

under 42 U.S.C. § 1983, which provides a federal remedy

against state actors who deprive others of rights secured by

the federal Constitution and laws. He sought damages for

the injuries he suffered at Kelly’s hands.

The theory of the case was novel. LaPorta claimed that

the City had inadequate policies in place to prevent the

shooting—or more precisely, that the City’s policy failures

caused Kelly to shoot him. He identified several policy

shortcomings: the failure to have an “early warning system”

to identify officers who were likely to engage in misconduct,

the failure to adequately investigate and discipline officers

who engage in misconduct, and the perpetuation of a “code

of silence” that deters reporting of officers who engage in

misconduct. A jury found the City liable and awarded

$44.7 million in damages. The City moved for judgment as a

matter of law, and the district court denied the motion.

We reverse. LaPorta’s injuries are grievous, but his legal

theory for holding the City liable is deeply flawed. Whatever

viability it might have had under state tort law (we’re skep-

tical, but there’s no need to make a prediction), it has no

foundation whatsoever in constitutional law. When Kelly

shot LaPorta, he was not acting as a Chicago police officer

but as a private citizen. LaPorta claimed that he was de-

prived of his due-process right to bodily integrity. But it has

long been settled that “a State’s failure to protect an individ-

No. 18-3049 3

ual against private violence … does not constitute a violation

of the Due Process Clause.” DeShaney v. Winnebago Cnty.

Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). We remand with

instructions to enter judgment for the City.

I. Background

Late one night in January 2010, LaPorta went drinking

with his friend Patrick Kelly, a Chicago police officer. It’s

undisputed that Kelly was off duty at the time of these

events. After patronizing two bars, the friends went to

Kelly’s house. At some point Kelly began hitting his dog.

LaPorta yelled at him to stop and said he was leaving. Kelly

then shot LaPorta in the head. 2 LaPorta survived but suf-

fered traumatic brain injuries that left him severely and

permanently disabled. He is unable to walk, has cognitive

deficits, and cannot use his right arm. He is blind in one eye

and deaf in one ear.

LaPorta filed suit in state court against the City of

Chicago and other defendants; initially he raised only state-

law claims for relief. LaPorta’s father, as his son’s guardian,

substituted as plaintiff in October 2011, and three years later

he amended the complaint to add a claim against the City

under § 1983 for violation of LaPorta’s right to due process.

The City removed the case to federal court. First Midwest

Bank later replaced LaPorta’s father as his guardian and was

2 At trial the City disputed LaPorta’s account and instead argued that

LaPorta shot himself with Kelly’s gun. Because we are reviewing a denial

of a motion for judgment as a matter of law, we view the evidence in

LaPorta’s favor. Ruiz-Cortez v. City of Chicago, 931 F.3d 592, 601 (7th Cir.

2019).

4 No. 18-3049

substituted as the plaintiff. For ease of reference, we contin-

ue to refer to LaPorta as the plaintiff.

The City moved to dismiss, arguing that the complaint

failed to allege a cognizable constitutional violation and thus

could not support municipal liability under Monell v.

Department of Social Services, 436 U.S. 658 (1978). Relying

largely on Gibson v. City of Chicago, 910 F.2d 1510 (7th Cir.

1990), the judge denied the motion. After discovery the City

moved for summary judgment, noting again the absence of

any constitutional violation. Citing DeShaney, 489 U.S. at

196–97, the City argued that it had no constitutional duty to

protect LaPorta from Kelly’s private violence. The judge

denied the motion, again relying on Gibson. LaPorta v. City of

Chicago, 277 F. Supp. 3d 969, 986–87 (N.D. Ill. 2017).

At trial LaPorta testified about the shooting and its af-

termath. Kelly invoked his Fifth Amendment right to remain

silent. Beyond the transactional witnesses, most of LaPorta’s

case focused on Kelly’s history of civilian and internal

disciplinary complaints and evidence about the Chicago

Police Department’s policies—or more specifically, its policy

failures. LaPorta identified three general policy deficiencies:

(1) the City failed to implement an “early warning system”

to identify problem officers; (2) it failed to adequately inves-

tigate and discipline officers who engaged in misconduct;

and (3) it fostered a “code of silence” that deterred reporting

of officers who engaged in misconduct.

The theory of LaPorta’s case was that these policy fail-

ures produced a deep-rooted culture of tolerating and

covering up officer misconduct, which led Kelly to believe

that he could shoot LaPorta with impunity. LaPorta’s coun-

sel told the jury that the case was about more than the

No. 18-3049 5

violation of LaPorta’s constitutional rights; it was about the

need for systemic reform in the Chicago Police Department.

More specifically, in closing argument LaPorta’s counsel

repeatedly argued that by finding the City liable, the jury

could help to bring about desperately needed institutional

reform in the Chicago Police Department and improve the

relationship between the police and citizens. Here’s a taste:

No more distinctions between “us” and

“them,” citizens and police. Let’s make the

streets safer for both by bringing back the trust.

Why is there no trust? Because there’s no

transparency. Why is there no transparency?

Because it’s an “us versus them” attitude. And

we need to bridge that. And when I say “we,” I

actually mean you.

You have the power to do it. … If you should

find that the City did, indeed, through Patrick

Kelly violate Michael LaPorta’s constitutional

rights and if you find that it engaged in cus-

tom[ary], widespread policies, then you have

that power to bring forth that change.

Real reforms can only begin after a judgment is

brought forth. Without that, there is no justice.

Real changes can be made, a new order and

trust can be restored to the community that

both citizens and police officers share. Yes,

your task is monumental. It’s big.

Again and again, counsel exhorted the jury to seize the

opportunity to reform the Chicago Police Department by

holding the City liable:

6 No. 18-3049

[D]on’t we want that change in culture? Of

course, we would pass the buck to someone

else. We would leave it up to the City, but you

heard from a city councilman and from the

mayor that time and again, attempts to reform

from within have failed. …

You are now in the driver[’s] seat, and you

have the ability to police the police.

To kickstart a transformation this large, counsel urged

the jury to set the damages award high enough to send a

message and bring about needed reform. To that end, he

argued that the Chicago Police Department had

a longstanding culture and attitude that won’t

get changed unless there’s a massive mandate.

It can’t be little.

The message has to be sent: You cannot do this

again, whether it’s with Patrick Kelly or any of

the other officers that rise above him in the

number of complaints because there are many,

many more officers out there, ladies and gen-

tlemen, that are worse than Patrick Kelly.

The City objected to this mode of argument, but the

judge overruled the objection. 3 LaPorta’s counsel ended his

3 That was error. This form of argument is plainly improper. In asking

the jury to award damages high enough to deter future misconduct

rather than compensate LaPorta for his injuries, counsel was asking the

jury to award punitive damages. But a municipality is immune from

punitive damages. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271

(1981). The judge acknowledged the error when ruling on the City’s

motion for remittitur but concluded that it was harmless.

No. 18-3049 7

closing argument by reading a fictitious letter that he had

written purporting to be from LaPorta to his parents and

brother. The “letter” apologized for being a burden and

expressed deep pain that he would never be able to marry,

have children, or take over the family business. The City

objected to this line of argument too, but the judge overruled

the objection.

The substantive jury instruction on the due-process claim

told the jury to first consider whether LaPorta proved by a

preponderance of the evidence that Kelly “intentionally or

with reckless indifference” shot him. If he proved this, then

the jury was instructed to consider whether he also proved

“each of the following things”:

One, prior to Michael D. LaPorta’s shooting,

the City of Chicago had one or more of the fol-

lowing policies: Failing to maintain an early

warning system that would identify officers

who would engage in misconduct in the fu-

ture; maintaining a code of silence in which of-

ficers failed to report misconduct or covered

up the misconduct of other officers; failing to

terminate officers who engaged in serious mis-

conduct; failing to discipline officers who en-

gaged in misconduct; and/or failing to

investigate allegations of officer misconduct.

The second thing – there’s two. One or more of

the policies described in Paragraph 1 caused

Patrick Kelly to intentionally or with reckless

indifference shoot Michael D. LaPorta.

8 No. 18-3049

Three, the Chicago City Council knew that be-

cause one or more of the policies described in

Paragraph 1 existed and was allowed to con-

tinue, it was highly predictable that its off-duty

officers would violate the bodily integrity of

persons they came into contact with because

there was a pattern of similar constitutional vi-

olations or it was highly predictable even

without a pattern of similar constitutional vio-

lations.

The instruction concluded: “If you find that Plaintiff has

proved each of these things by a preponderance of the

evidence, then you must decide for Plaintiff and go on to

consider the question of damages.”

The jury returned a verdict for LaPorta and awarded

$44.7 million in damages. The jurors concluded that two of

the City’s policies—its failure to maintain an adequate early

warning system and its failure to adequately investigate and

discipline officers—caused Kelly to shoot LaPorta.

The City moved for judgment as a matter of law under

Rule 50(b) of the Federal Rules of Civil Procedure. Relying

again on DeShaney, the City argued that it had no constitu-

tional duty to protect LaPorta from Kelly’s private violence.

The judge denied the motion, concluding that DeShaney was

inapplicable. The City also moved for a new trial based on

several trial errors, including the “send a message” closing

argument by LaPorta’s counsel and his fictitious letter

purporting to be from LaPorta to his family. The judge

denied that motion as well. This appeal followed.

No. 18-3049 9

II. Discussion

The City challenges the denial of its motion for judgment

as a matter of law. We review that ruling de novo. Ruiz-

Cortez v. City of Chicago, 931 F.3d 592, 601 (7th Cir. 2019). The

City also renews its request for a new trial based on coun-

sel’s improper remarks during closing argument. Because

we agree with the City’s first argument, we have no need to

reach the second.

Section 1983 states, in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress … .

The statute thus provides a remedy for violations of fed-

eral rights committed by persons acting under color of state

law. To prevail on a § 1983 claim, the plaintiff must prove

that “(1) he was deprived of a right secured by the Constitu-

tion or laws of the United States; and (2) the deprivation was

visited upon him by a person or persons acting under color

of state law.” Buchanan-Moore v. County of Milwaukee,

570 F.3d 824, 827 (7th Cir. 2009).

An action is not “under color of state law” merely be-

cause it is performed by a public employee or officer; the

action must be “related in some way to the performance of

10 No. 18-3049

the duties of the state office.” Barnes v. City of Centralia,

943 F.3d 826, 831 (7th Cir. 2019) (quotation marks omitted).

A municipality is a “person” under § 1983 and may be

held liable for its own violations of the federal Constitution

and laws. Monell, 436 U.S. at 690–91. Note the qualifier: “its

own violations.” Municipal liability under Monell carries an

important limitation: the statute does not incorporate the

common-law doctrine of respondeat superior, so a munici-

pality cannot be held liable for the constitutional torts of its

employees and agents. Id.

Accordingly, to prevail on a § 1983 claim against a mu-

nicipality under Monell, a plaintiff must challenge conduct

that is properly attributable to the municipality itself. Bd. of

Cnty. Comm’rs v. Brown, 520 U.S. 397, 403–04 (1997). Specifi-

cally, the plaintiff must prove that the constitutional viola-

tion was caused by a governmental “policy or custom,

whether made by its lawmakers or by those whose edicts or

acts may fairly be said to represent official policy.” Monell,

436 U.S. at 694. We have interpreted this language to include

three types of actions that can support municipal liability

under § 1983: “(1) an express policy that causes a constitu-

tional deprivation when enforced; (2) a widespread practice

that is so permanent and well-settled that it constitutes a

custom or practice; or (3) an allegation that the constitutional

injury was caused by a person with final policymaking

authority.” Spiegel v. McClintic, 916 F.3d 611, 617 (7th Cir.

2019) (quotation marks omitted).

A Monell plaintiff must also prove that the policy or cus-

tom demonstrates municipal fault. Brown, 520 U.S. at 404.

When a municipality takes action or directs an employee to

take action that facially violates a federal right, municipal

No. 18-3049 11

fault is easily established. Id. at 404–05. In contrast, where (as

here) the plaintiff alleges that the municipality has not

directly violated his rights but rather has caused an employ-

ee to do so, a “rigorous standard[] of culpability … applie[s]

to ensure that the municipality is not held liable solely for

the actions of its employee.” Id. at 405. In this situation, the

plaintiff must demonstrate that the municipality’s action

“was taken with ‘deliberate indifference’” to the plaintiff’s

constitutional rights. Id. at 407. This is a high bar. Negligence

or even gross negligence on the part of the municipality is

not enough. Id. A plaintiff must prove that it was obvious

that the municipality’s action would lead to constitutional

violations and that the municipality consciously disregarded

those consequences. Id.

Finally, a Monell plaintiff must prove that the municipali-

ty’s action was the “moving force” behind the federal-rights

violation. Id. at 404. Like the heightened showing of munici-

pal fault, this rigorous causation standard guards against

backsliding into respondeat superior liability. Id. at 405. To

satisfy the standard, the plaintiff must show a “direct causal

link” between the challenged municipal action and the

violation of his constitutional rights. Id. at 404.

These requirements—policy or custom, municipal fault,

and “moving force” causation—must be scrupulously

applied in every case alleging municipal liability. As the

Supreme Court has cautioned:

Where a court fails to adhere to rigorous re-

quirements of culpability and causation, mu-

nicipal liability collapses into respondeat

superior liability. As we recognized in Monell

and have repeatedly reaffirmed, Congress did

12 No. 18-3049

not intend municipalities to be held liable un-

less deliberate action attributable to the munici-

pality directly caused a deprivation of federal

rights.

Id. at 415.

These principles are settled and familiar. So too is the re-

quirement that the plaintiff must initially prove that he was

deprived of a federal right. That’s the first step in every

§ 1983 claim, including a claim against a municipality under

Monell. A Monell plaintiff must establish that he suffered a

deprivation of a federal right before municipal fault, deliber-

ate indifference, and causation come into play.

LaPorta’s claim fails at this first step. He did not suffer a

deprivation of a right secured by the federal Constitution or

laws. It’s undisputed that Kelly was not acting under color

of state law when he shot LaPorta. His actions were wholly

unconnected to his duties as a Chicago police officer. He was

off duty. He shot LaPorta after they spent a night out drink-

ing together and had returned to his home to continue

socializing at the end of the evening. Kelly’s actions were

those of a private citizen in the course of a purely private

social interaction. This was, in short, an act of private vio-

lence.

LaPorta’s claim is premised on the Fourteenth Amend-

ment right to due process—specifically, the due-process

liberty interest in bodily integrity. But he overlooks that the

Due Process Clause is a restraint upon governmental action:

“No State shall … deprive any person of life, liberty, or

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

amend. XIV (emphasis added). And as the Supreme Court

No. 18-3049 13

explained more than three decades ago, the Clause does not

impose a duty on the state to protect against injuries inflict-

ed by private actors.

[N]othing in the language of the Due Process

Clause itself requires the State to protect the

life, liberty, and property of its citizens against

invasion by private actors. The Clause is

phrased as a limitation on the State’s power to

act, not as a guarantee of certain minimal levels

of safety and security. It forbids the State itself

to deprive individuals of life, liberty, or prop-

erty without “due process of law,” but its lan-

guage cannot fairly be extended to impose an

affirmative obligation on the State to ensure

that those interests do not come to harm

through other means.

DeShaney, 489 U.S. at 195.

DeShaney involved a due-process claim 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. The boy’s mother then

sued the county and the social workers under § 1983 alleging

that they violated her son’s right to due process. Id. at 193.

The Supreme Court rejected the claim, explaining that

the purpose of the Due Process Clause is “to protect the

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

them from each other.” Id. at 196. The Court accordingly

14 No. 18-3049

held that the state does not have a due-process duty to

protect against acts of private violence. Id. at 196–97. And

“[b]ecause … the State had no constitutional duty to protect

[the child] against his father’s violence, its failure to do so—

though calamitous in hindsight—simply does not constitute

a violation of the Due Process Clause.” Id. at 202.

The Court recognized two limited exceptions to this gen-

eral rule. First, the state has an affirmative duty to provide

for the safety of a person it has taken into its custody invol-

untarily. Id. at 199–200. This is often referred to as the “spe-

cial relationship” exception. See Buchanan-Moore, 570 F.3d at

827. When a state takes a person into its custody and renders

him involuntarily unable to care for himself, it has “a corre-

sponding duty” to provide for his basic needs; a violation of

this duty “transgresses the substantive limits on state action

set by the Eighth Amendment and the Due Process Clause.”

DeShaney, 489 U.S. at 200. The special-relationship exception

did not apply in DeShaney for the obvious reason that the

injured child was not in state custody. Id.

DeShaney’s second exception arises only by implication

from a brief observation in the Court’s opinion. The Court

explained that although the county and its social workers

“may have been aware” of the dangers the child faced in his

father’s home, they “played no part in the[] creation” of

those dangers. Id. at 201. This language is generally under-

stood as a second exception to DeShaney’s general rule, one

that applies when the state “affirmatively places a particular

individual in a position of danger the individual would not

otherwise have faced.” Doe v. Village of Arlington Heights,

782 F.3d 911, 916 (7th Cir. 2015) (quoting Buchanan-Moore,

570 F.3d at 827).

No. 18-3049 15

The DeShaney exception for state-created dangers is nar-

row. Id. at 917. A plaintiff must show that the state affirma-

tively placed him in a position of danger and that the state’s

failure to protect him from that danger was the proximate

cause of his injury. Buchanan-Moore, 570 F.3d at 827. To

satisfy the proximate-cause requirement, the state-created

danger must entail a foreseeable type of risk to a foreseeable

class of persons. Id. at 828. A generalized risk of indefinite

duration and degree is insufficient. Id. at 828–29. 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 827–28. “Only ‘the most egregious

official conduct’ will satisfy this stringent inquiry.” Jackson v.

Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir. 2011)

(quoting County of Sacramento v. Lewis, 523 U.S. 833, 846

(1998)).

Unless one of these limited exceptions applies, the state

has no duty under the Due Process Clause to protect against

private violence. DeShaney made that clear, and we have

frequently applied its teaching. For example, in Wilson v.

Warren County, 830 F.3d 464 (7th Cir. 2016), the plaintiffs

sued a county and several of its officials alleging that they

failed to prevent private persons from seizing their property.

Citing DeShaney, we explained that the Due Process Clause

“does not require a state to protect citizens from private acts

unless the state itself creates the danger.” Id. at 469. The

exception for state-created dangers did not apply in Wilson,

so we affirmed a summary judgment for the defendants. Id.

at 470. Notably, we rejected the plaintiffs’ Monell claim

against the county because it had no constitutional duty to

protect against the private wrongful conduct. Id.

16 No. 18-3049

Latuszkin v. City of Chicago, 250 F.3d 502 (7th Cir. 2001),

involved a § 1983 claim arising out of a drunk-driving

accident by an off-duty Chicago police officer. After attend-

ing a private party with other officers in a police-station

parking lot, the intoxicated officer drove home in his own

vehicle and on the way struck and killed a pedestrian. Id. at

503. The victim’s husband filed a Monell claim against the

City, but the district court dismissed it. Id. at 504. We af-

firmed, citing DeShaney and explaining that “[g]overnmental

bodies … generally have no constitutional duty to protect

individuals from the actions of private citizens.” Id. at 505.

Because the intoxicated officer “was acting as a private

citizen, rather than as a police officer, when he killed [the

pedestrian], none of her federally protected rights were

violated.” Id.

In Wilson-Trattner v. Campbell, 863 F.3d 589 (7th Cir.

2017), the plaintiff filed a § 1983 claim against a county

sheriff and several of his deputies seeking damages for their

failure to adequately protect her from her abusive ex-

boyfriend, also a sheriff’s deputy. She reported her ex-

boyfriend’s conduct to the sheriff’s department, and the

defendants simply advised her to seek a protective order. Id.

at 592. Local police eventually arrested the ex-boyfriend after

a particularly explosive episode at her home. The victim

then sued the sheriff and his deputies in their individual and

official capacities; she alleged that their inadequate response

to her complaints caused her ex-boyfriend to continue

abusing her with impunity. Id. at 593. Applying DeShaney,

we held that the sheriff and his deputies had no constitu-

tional duty to protect her from her ex-boyfriend’s private

acts of violence; we noted as well that the exception for state-

created dangers did not apply. Id. at 593–96.

No. 18-3049 17

We could describe other examples, but it’s enough for

present purposes to say that we have repeatedly applied

DeShaney’s holding that the state has no due-process duty to

prevent harm from private actors unless one of the limited

exceptions applies. See, e.g., D.S. v. E. Porter Cnty. Sch. Corp.,

799 F.3d 793, 798–99 (7th Cir. 2015) (applying DeShaney to

bar a claim that a school failed to protect the plaintiff from

bullying); King ex rel. King v. E. St. Louis Sch. Dist. 189,

496 F.3d 812, 815–17 (7th Cir. 2007) (applying DeShaney to

bar a claim that a school failed to protect a student from a

private attack while walking home); Waubanascum v.

Shawano County, 416 F.3d 658, 665–71 (7th Cir. 2005) (apply-

ing DeShaney and rejecting a claim that a county violated a

foster child’s right to due process when the child was abused

by a foster parent to whom the county had issued a “courte-

sy license” at the request of the child’s county of residence);

Estate of Allen v. City of Rockford, 349 F.3d 1015, 1019–23 (7th

Cir. 2003) (applying DeShaney and holding that police offic-

ers who arrested the plaintiff and transported her to the

hospital had no constitutional duty to protect her from a

doctor’s forcible collection of urine and blood samples for

treatment purposes); Hernandez v. City of Goshen, 324 F.3d

535, 537–39 (7th Cir. 2003) (applying DeShaney to bar a claim

that a police department caused a workplace shooting by

failing to act on a reported threat); Windle v. City of Marion,

321 F.3d 658, 661–63 (7th Cir. 2003) (applying DeShaney and

holding that police officers had no constitutional duty to

protect the plaintiff from sexual abuse by her teacher).

This rule is not controversial. All circuits read DeShaney

the same way. See, e.g., Martinez v. City of Clovis, 943 F.3d

1260, 1271 (9th Cir. 2019); Estate of Romain v. City of Grosse

Pointe Farms, 935 F.3d 485, 491 (6th Cir. 2019); Graves v. Lioi,

18 No. 18-3049

930 F.3d 307, 319 (4th Cir. 2019); M.D. ex rel. Stukenberg v.

Abbott, 907 F.3d 237, 248–49 (5th Cir. 2018); Matthews v.

Bergdorf, 889 F.3d 1136, 1143 (10th Cir. 2018); L.R. v. Sch. Dist.

of Philadelphia, 836 F.3d 235, 241–42 (3d Cir. 2016); Kruger v.

Nebraska, 820 F.3d 295, 302–03 (8th Cir. 2016); Matican v. City

of New York, 524 F.3d 151, 155 (2d Cir. 2008); Rivera v. Rhode

Island, 402 F.3d 27, 34–35 (1st Cir. 2005); Butera v. District of

Columbia, 235 F.3d 637, 647–50 (D.C. Cir. 2001); Wyke v. Polk

Cnty. Sch. Bd., 129 F.3d 560, 566–67 (11th Cir. 1997).

LaPorta resists application of DeShaney by shifting the

focus to the Monell framework for municipal liability. The

judge agreed with this approach, reasoning that because the

jury found that the City’s policy failures “caused” Kelly to

shoot LaPorta, DeShaney was inapplicable. Other judges in

the Northern District of Illinois have issued similar rulings.

See Wagner v. Cook Cnty. Sheriff’s Office, 378 F. Supp. 3d 713,

714–15 (N.D. Ill. 2019); Falcon v. City of Chicago, No. 17 C

5991, 2018 WL 2716286, at *3–5 (N.D. Ill. June 6, 2018);

Cazares v. Frugoli, No. 13 C 5626, 2017 WL 1196978, at *15

(N.D. Ill. Mar. 31, 2017); Obrycka v. City of Chicago, No. 07 C

2372, 2012 WL 601810, at *5–6 (N.D. Ill. Feb. 23, 2012).

These decisions reflect a basic misunderstanding of the

relationship between Monell and DeShaney. Monell and

DeShaney are not competing frameworks for liability. The

two cases concern fundamentally distinct subjects. Monell

interpreted § 1983 and addressed the issue of who can be

sued under the statute; the Court held that a municipality is

a “person” under § 1983 and may be liable—just like an

individual public official—for its own violations of federal

rights. 436 U.S. at 694. Monell did not address the substance

of any right under the federal Constitution or laws. It has

No. 18-3049 19

nothing to say on that subject. It’s a statutory-interpretation

decision.

DeShaney, on the other hand, addressed the substance of

the constitutional right to due process. 489 U.S. at 194–202.

The Court interpreted the Due Process Clause and defined

its scope, strictly limiting the circumstances under which a

privately inflicted injury is cognizable as a due-process

violation. LaPorta had the burden to prove a constitutional

violation in addition to the requirements for municipal liabil-

ity under Monell. The judge was wrong to brush DeShaney

aside. 4

Applying DeShaney, as we must, it’s clear that the City is

entitled to judgment as a matter of law. It had no due-

process duty to protect LaPorta from Kelly’s act of private

violence. LaPorta has never argued that one of the DeShaney

exceptions applies. Rightly so; he was not in state custody at

the time of his injury, and no evidence supports the excep-

tion for state-created dangers. And because LaPorta was not

deprived of his right to due process, the City cannot be held

liable for his injuries under § 1983—and that is so even if the

requirements of Monell are established. Simply put, LaPorta

suffered a common-law injury, not a constitutional one.

As we’ve noted, the judge relied heavily on our decision

in Gibson, both at summary judgment and in rejecting the

4 The judge’s view that DeShaney is inapplicable to Monell claims is

particularly perplexing because DeShaney itself involved a Monell claim

against the county and its social-services agency. The Supreme Court

had no need to address Monell liability. Because the county and its social-

services agency had no constitutional duty to protect the child from his

father, there was no underlying violation of a federal right. DeShaney v.

Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 202 n.10 (1989).

20 No. 18-3049

City’s motion for judgment as a matter of law. Gibson in-

volved a Chicago police officer who was found mentally

unfit for duty and placed on medical leave. 910 F.2d at 1512.

The Chicago Police Department prohibited him from carry-

ing his gun or exercising any police authority; it also collect-

ed his star, shield, and identification card—but not his gun.

Id. Months later the officer fatally shot his neighbor. Id. at

1513. The victim’s estate filed suit under § 1983 against the

City of Chicago and several police officers alleging Fourth

Amendment and due-process violations. Id. The complaint

included a Monell claim against the City premised on allega-

tions that the police department failed to implement “ade-

quate procedures to deal with the recovery of firearms and

ammunition issued to police officers who had been placed

on medical leave due to mental unfitness.” Id.

The case came to us in an unusual procedural posture.

The defendants moved to dismiss, arguing that the officer

was not acting under color of state law at the time of the

shooting. The judge denied the motion but limited discovery

to the color-of-law issue. Id. at 1514. When the defendants

later moved for summary judgment, the estate objected to

consideration of anything other than whether the officer

acted under color of state law. Because the judge had limited

discovery to that issue alone, the estate had no opportunity

to engage in discovery on other merits issues.

Without addressing the estate’s procedural objection, the

judge concluded that the officer did not act under color of

state law, so the shooting victim had not been “seized” in

violation of the Fourth Amendment. Id. at 1515. The judge

also “considered and rejected the possibility that the City

had a constitutional duty to protect the [victim]” as a matter

No. 18-3049 21

of due process. Id. (quotation marks omitted). Accordingly,

the judge entered summary judgment for the defendants on

all claims. Id.

We agreed that the undisputed evidence showed that the

officer was not acting under color of state law at the time of

the shooting. 910 F.2d at 1516–19. But we faulted the judge

for considering and resolving other issues on summary

judgment after strictly limiting discovery to that single topic.

Id. at 1520. So we addressed the estate’s claims as if we were

reviewing a dismissal on the pleadings under Rule 12(b)(6)

of the Federal Rules of Civil Procedure rather than a sum-

mary judgment. Id. Applying the Rule 12(b)(6) standard, we

concluded that the estate’s factual allegations about the

City’s deficient policies were sufficient to permit the Monell

claim to proceed. Id. at 1520–21.

In a footnote we explained that our holding was “quite

compatible with DeShaney”:

In DeShaney, the Supreme Court held that

county authorities who had learned that a

child was at risk of being abused by his father

committed no constitutional violation by their

failure to act to prevent the abuse. The Court

reasoned that nothing in the due process clause

requires the state to protect its citizens’ life, lib-

erty, and property “against invasion by private

actors.” [DeShaney, 489 U.S. at 195] (emphasis

supplied). In determining that the county offi-

cials had not violated any constitutional right

of the victim, the Court expressly noted that

the state had “played no part in [the] creation

[of the dangers faced by the victim], nor did it

22 No. 18-3049

do anything to render him more vulnerable to

them.” Id. at [201]. It is in this important re-

spect that the present case differs considerably

from DeShaney. At this point in the litigation,

where we are obliged to accept as true the

plaintiff’s factual allegations, the City is alleged

to have played a part in both creating the dan-

ger (by training and arming [the officer]) and

rendering the public more vulnerable to the

danger (by allowing [him] to retain his weapon

and ammunition after it otherwise stripped

him of his authority as a policeman).

Id. at 1521 n.19. In short, we held that the estate’s factual

allegations were sufficient to permit the Monell claim to

proceed beyond the pleading stage under the DeShaney

exception for state-created dangers.

This case is different. LaPorta never invoked the

DeShaney exception for state-created dangers. He neither

pleaded nor attempted to prove up a state-created danger,

and the jury was not instructed on the legal elements of that

type of due-process violation.

So the judge simply misapplied Gibson. We did not hold

that a Monell claim is exempt from DeShaney’s general rule

that the state has no constitutional duty to prevent acts of

private violence. Nor could we. Nothing in Gibson suspend-

ed the DeShaney rule for Monell plaintiffs.

The judge’s misreading of Gibson led him to overlook a

fundamental defect in LaPorta’s Monell claim, both at sum-

mary judgment and in rejecting the City’s posttrial motion.

No. 18-3049 23

Under DeShaney the City had no due-process duty to protect

LaPorta from Kelly’s act of private violence.

LaPorta suggests that his novel theory against the City

finds support in Thomas v. Cook County Sheriff’s Department,

604 F.3d 293 (7th Cir. 2010), but that case does not help him.

Thomas involved a pretrial detainee who died in jail from

pneumococcal meningitis. A jury cleared the individual

defendants but found the sheriff’s department liable for

failing to adequately respond to Thomas’s medical needs. Id.

at 305. We concluded that “a municipality can be held liable

under Monell, even when its officers are not, unless such a

finding would create an inconsistent verdict.” Id. The verdicts

in Thomas were easily reconcilable. The jury found that the

sheriff’s department was deliberately indifferent to the

detainee’s medical needs—a constitutional violation—

because its policies for processing medical-request forms

were clearly insufficient. That finding was not at all incon-

sistent with its exoneration of the individual officers. Id.

Nothing in our decision in Thomas lifted the plaintiff’s

burden to prove a predicate constitutional violation. To the

contrary, because pretrial detainees have a constitutional

right to medical care while in custody, the sheriff’s depart-

ment could be found liable for violating that right even

though the individual defendants were not. Id. at 301 & n.2.

LaPorta also relies on Glisson v. Indiana Department of

Corrections, 849 F.3d 372 (7th Cir. 2017) (en banc), but that

case too is distinguishable. There, a state prisoner died from

acute renal failure. We concluded that a jury could find that

the prison’s failure to enact a coordinated-care policy for

prisoners with chronic illnesses amounted to deliberate

indifference to the high likelihood that prisoners would die.

24 No. 18-3049

Id. at 382. It did not matter that no individual medical pro-

vider could be found liable; the problem was that “no one

was responsible for coordinating [Glisson’s] overall care.” Id.

at 375. Again, nothing in our decision in Glisson removed the

plaintiff’s burden to prove an underlying constitutional

violation. The case involved the prisoner’s Eighth Amend-

ment right to adequate medical care. Id. at 378; see Farmer v.

Brennan, 511 U.S. 825, 832 (1994).

This case is fundamentally different. Here there was no

constitutional violation because the City had no due-process

duty to protect LaPorta from Kelly’s private violence.

III. Conclusion

LaPorta’s case is tragic. His injuries are among the grav-

est imaginable. His life will never be the same. But § 1983

imposes liability only when a municipality has violated a

federal right. Because none of LaPorta’s federal rights were

violated, the verdict against the City of Chicago cannot

stand. We REVERSE and REMAND for entry of judgment for

the City.