“[Defendant’s] ordering [his] players to assault the referee . . . does not fit in the state-created-danger box. Instead, it is an example of a public official’s ordering private actors to engage in conduct. The law has long recognized that state action exists when a state actor commands others to commit acts as much as when the state actor commits those acts.”
How later courts described this case
- “[Defendant’s] ordering [his] players to assault the referee . . . does not fit in the state-created-danger box. Instead, it is an example of a public official’s ordering private actors to engage in conduct. The law has long recognized that state action exists when a state actor commands others to commit acts as much as when the state actor commits those acts.”
- “We have ‘repeatedly declined to recognize the state-created danger doctrine.’” (quotation omitted)
Written by the judges who cited it.
The opinion
Case: 20-50103 Document: 00516372663 Page: 1 Date Filed: 06/27/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 27, 2022
No. 20-50103
Lyle W. Cayce
Clerk
Robert Watts,
Plaintiff—Appellant,
versus
Northside Independent School District; Mack Edward
Breed,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-887
Before Wiener, Costa, and Willett, Circuit Judges.
Gregg Costa, Circuit Judge:
Texas high school football has a storied history. See generally H. G.
Bissinger, Friday Night Lights: A Town, a Team, and a
Dream (1990). But what happened on the Friday night in September 2015
when Marble Falls High School played John Jay High School may have been
unprecedented. By the fourth quarter, John Jay’s assistant coach Mack
Breed was “increasingly agitated, angry and enraged over his belief that the
referee crew was making ‘bad calls,’” and over “alleged racial comments”
referee Robert Watts had directed at players. Coach Breed told John Jay
Case: 20-50103 Document: 00516372663 Page: 2 Date Filed: 06/27/2022
No. 20-50103
players “to hit” Watts because “he need[ed] to pay the price.” In the
game’s closing minutes, two John Jay players followed that order. They
ambushed Watts from behind. The assault left Watts with “a turf burn on
his forehead, a cut next to his right eye, and a large abrasion on his left arm.”
He “received a concussion” and experienced “post-concussion syndrome
and anxiety disorder.” 1
The incident went viral. The two John Jay players who attacked Watts
appeared on Good Morning America, where they “expressed remorse for their
actions and maintained they were just doing as they were told” by Breed.
The players, who followed Breed’s direction to “hit the ref,” said they
“knew what they did was wrong, but they did it anyway because of their trust
in Breed.” John Jay’s principal told ESPN that Breed “admitted to him and
Head Coach Gary Gutierrez that he ‘directed the students to make the
referee pay for his racial comments and calls.’”
In December 2015, Breed pleaded guilty to assault causing bodily
injury, affirming that he did “intentionally, knowingly, or recklessly cause
bodily injury to Robert Watts by striking him.” Breed’s conviction required
him to permanently relinquish his teaching license.
This civil rights suit, filed in state court and later removed to federal
court, followed. The magistrate judge recommended dismissing the section
1983 claim against the school district under Rule 12(b)(6) because: (1) there
was no state action as the players who hit Watts were private actors, and (2)
even if there were a constitutional violation, the school district was not the
moving force behind it and thus could not be liable, see Monell v. Dep’t of
Social Servs. of N.Y., 436 U.S. 658, 694 (1978). The magistrate judge later
1
The quoted material comes from the complaint as we must take its allegations as
true at the pleading stage when this case was dismissed.
2
Case: 20-50103 Document: 00516372663 Page: 3 Date Filed: 06/27/2022
No. 20-50103
recommended dismissing the substantive due process claim against Breed
because the law is not clearly established that he was a state actor in this
incident. He further recommended that the state law claims against Breed be
dismissed without prejudice, allowing them to be pursued in state court. See
28 U.S.C. § 1367(c)(3) (providing that a federal court may decline to exercise
supplemental jurisdiction over claims when it “has dismissed all claims over
which it has original jurisdiction”). The district court agreed on all counts,
dismissing the federal claims with prejudice and the state claims without
prejudice.
We affirm the dismissal of the school district. No policy or custom of
Northside Independent School District directed the assault on Watts—quite
the opposite, Breed had gone rogue in ordering the assault—so the district is
not liable under section 1983. See Monell, 436 U.S. at 694.
We reach a different conclusion when it comes to the pleading-stage
dismissal of the claims brought against Breed in his own capacity. The
district court focused on the “state created danger” theory that Watts
invokes. It correctly ruled that this theory could not be a basis for liability.
We have “repeatedly declined to recognize the state-created danger
doctrine.” Joiner v. United States, 955 F.3d 399, 407 (5th Cir. 2020). A claim
that we have expressly not recognized is the antithesis of a clearly established
one. See Keller v. Fleming, 952 F.3d 216, 227 (5th Cir. 2020) (dismissing a
case on qualified immunity grounds because the Fourteenth Amendment
claim required recognition of the state-created-danger theory).
But the state-created-danger theory does not even fit this situation in
which a public employee ordered private actors to commit an assault.
Instead, the theory applies when a state actor creates a dangerous condition
that results in harm. It involves a mens rea of deliberate indifference, not the
intentional infliction of harm. See Doe ex rel. Magee v. Covington Cnty. Sch.
3
Case: 20-50103 Document: 00516372663 Page: 4 Date Filed: 06/27/2022
No. 20-50103
Dist. ex rel. Keys, 675 F.3d 849, 865 (5th Cir. 2012) (en banc) (listing the
elements that such a claim would require though abstaining from recognizing
it). A good example of the type of situation in which plaintiffs invoke the
state-created-danger theory is the Texas A&M bonfire disaster that killed
twelve students in 1999. See Scanlan v. Texas A&M Univ., 343 F.3d 533, 537–
38 (5th Cir. 2003). The plaintiffs argued that university officials were
deliberately indifferent to the “dangers posed by the construction of the
bonfire stack.” Id. at 538. But no one contended that those officials wanted
the bonfire to collapse or ordered anyone to make that tragedy happen. Or,
to use an example from high school football, plaintiffs have invoked the state-
created-danger theory to try and hold schools and coaches liable for injuries
that occur on the field in the normal course of practice and games. See, e.g.,
Yarbrough v. Sante Fe Ind. Sch. Dist., 2022 WL 885093, at *1–2 (5th Cir.
March 25, 2022) (rejecting such a claim). Again, the argument is that state
actors are responsible for allowing dangerous conditions to persist. Id. at *2.
Cases like Yarbrough do not involve coaches ordering players to hurt others
on the field.
This case does. Breed’s ordering players to assault the referee thus
does not fit in the state-created-danger box. Instead, it is an example of a
public official’s ordering private actors to engage in conduct. The law has
long recognized that state action exists when a state actor commands others
to commit acts as much as when the state actor commits those acts.
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296
(2014) (“We have, for example, held that a challenged activity may be state
action when it results from the State’s exercise of ‘coercive power,’ when
the State provides ‘significant encouragement, either overt or covert,’ or
when a private actor operates as a ‘willful participant in joint activity with the
State or its agents.’” (citations omitted)); Norwood v. Harrison, 413 U.S. 455,
465 (1973) (“[I]t is also axiomatic that a state may not induce, encourage or
4
Case: 20-50103 Document: 00516372663 Page: 5 Date Filed: 06/27/2022
No. 20-50103
promote private persons to accomplish what it is constitutionally forbidden
to accomplish.” (quoting Lee v. Macon Cnty. Bd. of Educ., 267 F. Supp. 458,
475–76 (M.D. Ala. 1967))). Under this view of the case, which Watts also
argues, it is clearly established that Breed engaged in state action when he
ordered his players to assault Watts.
The challenged action is Breed’s order to hurt Watts. It is hard to see
how that is anything other than state action. Breed was on the sidelines acting
in his role as an assistant football coach at a public school. Just as a police
officer cannot avoid the Fourth Amendment by ordering a private citizen to
conduct an illegal search, see Coolidge v. New Hampshire, 403 U.S. 443, 487
(1971) (explaining that the Fourth Amendment applies when a private party
is acting as an instrument or agent of the state), Breed cannot escape liability
by ordering students to conduct the attack. Likewise, state officials could not
get around the Equal Protection Clause on the ground that they did not
“physically post the signs” in a bus terminal segregating the races. Baldwin
v. Morgan, 287 F.2d 750, 755 (5th Cir. 1961). Because the state
“commanded” the private terminal operator to post the signs and maintain
separate areas, state officials could be sued. Id. As these examples show, a
state actor is liable for conduct that also involves private actors “when it has
exercised coercive power or has provided such significant encouragement,
either overt or covert, that the choice must in law be deemed to be that of the
State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
In fact, the difficult state action question when a public official and a
“nominally private” party act in concert is whether the latter temporarily
becomes a state actor subject to constitutional constraints. See Brentwood,
531 U.S. at 296; Blum, 457 U.S. at 1003 (distinguishing cases “in which the
defendant is a private party and the question is whether his conduct has
sufficiently received the imprimatur of the State so as to make it ‘state’ action
for purposes of the Fourteenth Amendment”); see also Adickes v. S.H. Kress
5
Case: 20-50103 Document: 00516372663 Page: 6 Date Filed: 06/27/2022
No. 20-50103
& Co., 398 U.S. 144, 169–71 (1970) (addressing whether a private company
could be sued under section 1983 for maintaining a segregated restaurant
when state enforced custom of segregation). The question with the
straightforward answer is the one we face here: whether a public official
somehow steps out of his ordinary “state actor” role by enlisting private
parties to carry out his orders. See Peterson v. City of Greenville, 373 U.S. 244,
248 (1963) (“When the State has commanded a particular result, it . . . has
‘become involved’ in it, and, in fact, has removed that decision from the
sphere of private choice.”). Because the law has long recognized that a public
official remains a state actor when he orders others to carry out his objectives,
any reasonable football coach would have known that he was engaged in state
action when instructing his players that Friday night. Consequently, the state
action in this case was clearly established and it was error to dismiss the
section 1983 claim against Breed on that ground.
Although we hold that Breed was engaged in state action that
subjected him to the Due Process Clause, we do not opine on whether the
complaint has alleged a violation of clearly established due process law. We
leave that determination to the district court on remand. And because the
only basis for dismissing the state tort claims brought against Breed was the
dismissal of all federal claims, we also reverse the dismissal of the state
claims.
We therefore AFFIRM IN PART and REVERSE IN PART.
The case is REMANDED for further proceedings on the claims asserted
against Breed in his individual capacity.
6