Virginia Slaughter v. Mayor & City Council Baltimore

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VIRGINIA DEAN SLAUGHTER, 

Individually and as Personal

Representative of the Estate of

RACHEAL MICHELLE WILSON;

C.W.R., by his father and next

friend ADRIAN RICHARDSON; P.J.D.,

by her father and next friend

LARRY CRAIG DAVIS, JR.,

Plaintiffs-Appellants,

v.

MAYOR AND CITY COUNCIL OF  No. 10-2436

BALTIMORE; KENNETH HYDE, in his

official capacity as former

Division Chief of the Baltimore

City Fire Department; JOSEPH

CREST, in his official capacity as

former Lieutenant of the Baltimore

City Fire Department; BARRY

BROYLES, in his official capacity as

former Lieutenant of the Baltimore

City Fire Department,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson Everett Legg, District Judge.

(1:10-cv-01157-BEL)

Argued: March 22, 2012

Decided: June 7, 2012

2 SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE

Before NIEMEYER, DAVIS, and WYNN, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Davis joined. Judge Wynn wrote a

separate opinion concurring in the result.

COUNSEL

ARGUED: Paul David Bekman, SALSBURY, CLEMENTS,

BEKMAN, MARDER & ADKINS, Baltimore, Maryland, for

Appellants. David Eugene Ralph, BALTIMORE CITY

DEPARTMENT OF LAW, Baltimore, Maryland, for Appel-

lees. ON BRIEF: Emily C. Malarkey, SALSBURY, CLEM-

ENTS, BEKMAN, MARDER & ADKINS, Baltimore,

Maryland, for Appellants. Ashlea Brown, Amy Beth Leasure,

BALTIMORE CITY DEPARTMENT OF LAW, Baltimore,

Maryland, for Appellees.

OPINION

NIEMEYER, Circuit Judge:

After Racheal Wilson, a new recruit for the Baltimore City

Fire Department, tragically died during a "live burn" training

exercise, her survivors and estate commenced this action

under 42 U.S.C. § 1983 against the Mayor and City Council

of Baltimore,* alleging that the Baltimore City Fire Depart-

*In addition to the Mayor and City Council, the complaint names as

defendants Kenneth Hyde, in his official capacity as former Division

Chief of the Baltimore City Fire Department; Joseph Crest, in his official

capacity as former Lieutenant of the Fire Department; and Barry Broyles,

in his official capacity as former Lieutenant of the Fire Department. We

refer to the defendants collectively as the "Baltimore City Fire Depart-

ment" or the "Fire Department."

SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE 3

ment violated Wilson’s substantive due process rights by stag-

ing the exercise with deliberate indifference to Wilson’s

safety, so as to shock the conscience.

The district court granted the Fire Department’s motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6), con-

cluding that the deliberate indifference standard is normally

applied only to those in the government’s custody and that

Wilson was not in custody and had an option of declining to

participate in the exercise, or even declining to be a fire-

fighter. The court instead applied a standard requiring the

showing of intent to harm and concluded that "however reck-

less" the Fire Department may have been, its actions did not

"rise to the level of a constitutional violation."

Applying Collins v. City of Harker Heights, 503 U.S. 115

(1992), and Waybright v. Frederick County, 528 F.3d 199

(4th Cir. 2008), we affirm. We conclude that because the

complaint does not purport to allege that the Fire Department

staged the live burn training exercise with the purpose of

causing harm to Wilson or to any other recruit, it falls short

of alleging a substantive due process violation in the context

of the facts alleged, even though it might well allege causes

of action under state law, as the complaint purports to do in

other counts.

I

The amended complaint alleges that on February 9, 2007,

Racheal Wilson, a new recruit with the Baltimore City Fire

Department, participated in a live burn training exercise

staged at a vacant three-story building in Baltimore. The live

burn exercise was required as part of the training program for

aspiring Baltimore City firefighters. To stage the building for

the exercise, officials of the Fire Department tore down wall-

boards and ceilings to create debris and stuffed walls with

highly flammable excelsior. Then they lit fires at multiple

locations on the first and second floors. After a period of

4 SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE

delay, Fire Department officials instructed Wilson and her

team to proceed to the third floor, with Wilson carrying the

hose.

The team encountered "severe fire conditions," and by the

time they reached the third floor, they realized that their "lives

were in danger." Accordingly, the team began to evacuate the

building "through a small window in the back of the dwelling

that opened onto the rear roof of the second floor," but Wilson

"had difficulty getting through the window," and, when others

were unable to pull her through, she fell back into the build-

ing. Although the team ultimately managed to get Wilson

through the window, she had by then become unconscious.

She was immediately taken to the University of Maryland

Shock Trauma unit, where she was pronounced dead on

arrival. Her autopsy confirmed thermal injury and asphyxia as

the causes of death.

The complaint alleges that Wilson’s death was avoidable

with adequate preparations for the exercise and that the Fire

Department created unduly dangerous conditions in staging

the exercise. The complaint alleges:

— that it was improper for the Fire Department to

stage the building by tearing down wallboards

and ceilings, by leaving debris, and by adding

flammable excelsior to the walls; and that Fire

Department officials "knew that [such a] build-

ing was unsuitable" for a training exercise;

— that the Fire Department did not conduct a pre-

burn orientation, walkthrough, and planning, as

is required for such exercises;

— that the Fire Department did not properly equip

recruits and, more specifically, that it did not

give Wilson appropriate protective clothing;

SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE 5

— that instructors were not equipped with radios

and were not trained to supervise a live burn;

— that, contrary to the National Fire Protection

Association’s standards, the Fire Department

set fires at multiple locations in the building;

— that the Fire Department allowed the fires to

burn too long before recruits entered the build-

ing; and

— that the water supply for fighting the fire was

inadequate, as it was taken from only one

hydrant.

In summary, the complaint claims that these and other condi-

tions and circumstances amounted to "willful violations of

nationally-recognized safety standards for live burn training

exercises."

Based on these factual allegations, Count I of the com-

plaint, brought under 42 U.S.C. § 1983, asserts that the Fire

Department’s conduct "shocks the conscience and was either

intentional, reckless, grossly negligent, and/or deliberately

indifferent towards Ms. Wilson’s . . . life and liberty," in vio-

lation of her Fourteenth Amendment rights. In other counts,

the complaint alleged violations of the Maryland Constitution

and other state law duties.

On the Fire Department’s motion to dismiss, the district

court dismissed Count I of the complaint because it failed to

state a claim under the Fourteenth Amendment, and it dis-

missed the remaining counts without prejudice, to be resolved

in state court. From the district court’s judgment, dated

December 3, 2010, the plaintiffs filed this appeal.

II

The plaintiffs argue that their complaint sets forth facts suf-

ficient to state a substantive due process violation insofar as

6 SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE

it alleges that the Fire Department’s conduct was deliberately

indifferent to the life and safety of Wilson in circumstances

where the Fire Department itself created the danger that

caused her death. While they concede that the Fire Depart-

ment did not intend Wilson’s harm, which is usually neces-

sary to satisfy the shocks-the-conscience test for a substantive

due process violation, see Cnty. of Sacramento v. Lewis, 523

U.S. 833, 849 (1998), the plaintiffs argue that cases also rec-

ognize that a showing of deliberate indifference can be suffi-

cient to establish a substantive due process violation when the

State either created the danger or was in a special relationship

with the plaintiff, such as having custody over her. But the

plaintiffs candidly acknowledge that, apart from situations

involving custody, the Supreme Court has never applied a

"deliberate indifference" standard merely because the State

created a danger that resulted in harm. Rather, they rely on the

statement in DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189, 201 (1989), where the Court

explained, in refusing to hold a department of social services

liable for not protecting a child from an abusive father, that

"[w]hile the State may have been aware of the dangers that

[the child] faced in the free world, it played no part in their

creation, nor did it do anything to render him any more vul-

nerable to them." (Emphasis added).

Defendants contend that the government’s conduct in this

case can only violate the substantive due process guarantee of

the Constitution if the government’s conduct was "intended to

injure in some way unjustifiable by any government interest."

Lewis, 523 U.S. at 849. They conclude that because the facts

alleged in the complaint do not suggest that Fire Department

officials were motivated by any intent to injure Wilson, or for

that matter, any other recruit, the complaint fails to state a

claim under 42 U.S.C. § 1983 on which relief can be granted.

"The touchstone of due process is protection of the individ-

ual against arbitrary action of government." Lewis, 523 U.S.

at 845 (emphasis added) (internal quotation marks and alter-

SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE 7

ation omitted). "Arbitrary action," however, is used in a con-

stitutional sense, which encompasses "only the most

egregious official conduct," namely that which "shocks the

conscience." Id. at 846. Defining conduct that shocks the con-

science does not draw on any traditional standard of liability

from tort law but rather refers, as a constitutional construct of

substantive due process, to "conduct intended to injure in

some way unjustifiable by any government interest." Id. at

849.

To be sure, a lower level duty of culpability may amount

to a substantive due process violation in those situations

where the government is required "to take care of those who

have already been deprived of their liberty"—such as pretrial

detainees, persons in mental institutions, convicted felons, and

persons under arrest. See Collins, 503 U.S. at 127 (collecting

cases). In those circumstances, the Court has held that the

government’s deliberate indifference to the care of persons in

its custody can shock the conscience for purposes of finding

a substantive due process violation. See Lewis, 523 U.S. at

849-50. The Court has reasoned that the deliberate indiffer-

ence standard relates to "[t]he ‘process’ that the Constitution

guarantees in connection with any deprivation of liberty,"

imposing on the government a "continuing obligation to sat-

isfy certain minimal custodial standards." Collins, 503 U.S. at

127-28.

But the Collins Court made clear that this standard does not

apply to persons in an employment relationship with the gov-

ernment. "Petitioner cannot maintain . . . that the city deprived

Collins of his liberty when it made, and he voluntarily

accepted, an offer of employment." 503 U.S. at 128. In Col-

lins, the estate of a municipal employee, who in the course of

his employment died from exposure to noxious gases when he

entered a manhole to unstop a sewer line, sued the city and

alleged that the city had failed to train or warn its employees

about known hazards in the workplace; that the employees

had not been trained; that the employees had not been pro-

8 SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE

vided with safety equipment and safety warnings; that the city

had received notice of the risks; and that the city "systemati-

cally and intentionally failed to provide the equipment and

training required by a Texas statute." Id. at 117-18. The Court

held that, even though the alleged facts might have shown

deliberate indifference, in the context of a voluntary employ-

ment relationship, such conduct was not "arbitrary, or con-

science shocking, in a constitutional sense" and would not

support a substantive due process violation. Id. at 128.

Just as in Collins, the plaintiffs in this case alleged that the

Baltimore City Fire Department, in conducting the live burn

exercise, failed to provide Wilson with safe working condi-

tions, proper equipment, proper training, and particularized

notice about risks of which Fire Department officials had

actual knowledge. And thus, as in Collins, these allegations

might be consistent with the Fire Department’s deliberate

indifference. But in the voluntary employment context, the

plaintiffs have not alleged arbitrary (in the constitutional

sense) or conscience-shocking conduct because they did not

assert that the Fire Department intended to harm Wilson, as

would be necessary to establish a substantive due process vio-

lation. See Collins, 503 U.S. at 125-27 & n.10; Lewis, 523

U.S. at 848-49.

Applying the Supreme Court’s holding in Collins, we have

held that a fire department recruit who died during a training

exercise could not, without alleging an intent to harm, main-

tain an action for a substantive due process violation. See

Waybright, 528 F.3d at 208-09. In Waybright, the recruit’s

estate alleged that during a training exercise, the fire depart-

ment drove the recruits hard, telling them that it did not like

quitters; that the recruits were required to run 4.3 miles, per-

form intensive calisthenics, and run wind sprints on a swelter-

ing day during which the heat index reached 96 degrees; that

the supervisors did not bring water, communications, trans-

portation or first aid equipment to the exercise; and that as

recruits were failing in stamina, the fire department officials

SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE 9

did not recognize any danger or act promptly to assist those

in crisis. Id. at 202. At the exercise, Waybright went into car-

diac arrest and subsequently died of heat stroke. Id. While we

acknowledged that the fire department’s conduct might well

have supported state tort claims, we concluded that it was not

arbitrary in a constitutional sense and therefore did not give

rise to a claim under the Fourteenth Amendment. Id. at 206-

08. Rejecting application of the deliberate indifference stan-

dard, we noted that the recruit was not in government custody,

but could "walk away" from the exercise and, indeed, the job.

Id. at 207 (citing Collins, 503 U.S. at 128). We concluded,

[D]ue process does not impose a duty on municipali-

ties to provide their employees with a safe workplace

or warn them against risks of harm (though state tort

law may). [Collins] is right on point, for plaintiffs’

state-created danger claim, in essence, is that [the

fire department] created an unsafe workplace that

caused a prospective employee [i.e., a recruit] harm.

Id.

It is true that in this case, as it was in Waybright, the Balti-

more City Fire Department created the danger. But this fact

does not satisfy any element of the standard that the Supreme

Court has articulated for showing a substantive due process

violation with respect to a government employee. Moreover,

if we were to recognize that government liability could flow

simply from its creation of a dangerous condition, the practi-

cal consequences would be, as we noted in Waybright, "im-

mense." 528 F.3d at 208.

[B]y finding a state-created danger here, we might

well inject federal authority into public school play-

ground incidents, football (or even ballet) practice

sessions, and class field trips, not to mention training

sessions for government jobs that require some

degree of physical fitness. Sometimes practice is

10 SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE

demanding because games are demanding, and train-

ing is demanding because jobs are demanding, and

how best to conduct these sessions can rarely be the

focus of a constitutional claim.

Id.

For these reasons, we hold that the Baltimore City Fire

Department’s constitutional liability in this case turns on

whether it intended to harm the new recruits. See Lewis, 523

U.S. at 836 ("[I]n such circumstances only a purpose to cause

harm unrelated to [a] legitimate object . . . will satisfy the ele-

ment of arbitrary conduct shocking to the conscience").

Because the plaintiffs concede that no facts in the complaint

support such a conclusion, the district court properly dis-

missed Count I of the complaint, purporting to allege a federal

constitutional claim. The plaintiffs’ state law claims remain

unaffected by our ruling and those claims, which were dis-

missed by the district court without prejudice, can be litigated

in state court.

III

The facts alleged in this case reveal a sad story that might

well support state tort claims or other state law claims. But to

treat the Fire Department’s conduct as a substantive due pro-

cess violation would be to constitutionalize a state tort claim,

which must only be done in the rarest of cases. As we

observed in Waybright, "where a claim sounds both in state

tort law and substantive due process, state tort law is the rule

and due process the distinct exception." 528 F.3d at 205.

Moreover, the consequences of creating such an exception

here based on the fact that the State created the danger would

tend to constitutionalize virtually every state-sponsored activ-

ity that created or involved a risk of danger. Any movement

in this direction would surely contradict the Supreme Court’s

longstanding reluctance to expand substantive due process

and would also disturb the established jurisprudential balance

SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE 11

between protecting the public interest and recognizing private

rights when applying the guarantees of substantive due pro-

cess.

For the reasons given, we affirm the judgment of the dis-

trict court.

AFFIRMED

WYNN, Circuit Judge, concurring in the result:

Because I agree with the majority that the facts of this case

are insufficient to state a claim for a violation of Due Process,

I concur in the result reached by the majority opinion. I write

separately because Collins v. City of Harker Heights, 503

U.S. 115, 130 (1992), which held that there is no duty on

municipalities to "provide certain minimal levels of safety and

security in the workplace" and that "failure to train or to warn

its sanitation department employees was not arbitrary in a

constitutional sense," resolves this case. Id. Further, it would

be contrary to the Supreme Court’s decision in County of Sac-

ramento v. Lewis, 523 U.S. 833, 849-50 (1998), to conclude

that in the absence of a custodial relationship, only conduct

"intended to harm" is sufficient to state a claim under § 1983.

Ante at 6.

I.

In Collins, the Supreme Court considered whether a munic-

ipality’s failure to train an employee, provide adequate safety

equipment, and post warning notices regarding known haz-

ards violated the Due Process Clause of the Fourteenth

Amendment. The Supreme Court held that there is no "consti-

tutional obligation to provide [municipal] employees with cer-

tain minimal levels of safety and security . . . ." Collins, 503

U.S. at 127. The Supreme Court then went on to examine the

city’s conduct under the "arbitrary" or "conscience shocking"

standard. Id. at 128. The Supreme Court found that the city’s

12 SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE

conduct constituted negligence, and as a result could not

"properly be characterized as arbitrary, or conscience shock-

ing, in a constitutional sense." Id. The Supreme Court empha-

sized that § 1983 was not intended to turn every tort claim

into a constitutional violation or to serve as a "‘guarantee

against incorrect or ill advised personnel decisions.’" Id. at

128-29 (quoting Bishop v. Wood, 426 U.S. 341, 350 (1976)).1

In Lewis, the Supreme Court clarified the type of conduct

that could be sufficiently "conscience shocking" to state a

claim under § 1983. It noted that "liability for negligently

inflicted harm is categorically beneath the threshold of consti-

tutional due process." Lewis, 523 U.S. at 849 (citing Daniels

v. Williams, 474 U.S. 327, 328 (1986)). By contrast, "conduct

intended to injure in some way unjustifiable by any govern-

ment interest is the sort of official action most likely to rise to

the conscience-shocking level." Id. (emphasis added).2 The

Supreme Court went on to note that cases "falling within the

middle range, following from something more than negli-

gence but ‘less than intentional conduct, such as recklessness

or gross negligence, is a matter for closer calls,’" id. (citation

1

The majority opinion appears to construe the holding in Collins to have

broad implications in the context of employment. See ante at 7 ("even

though the alleged facts might have shown deliberate indifference, in the

context of a voluntary employment relationship, such conduct was not

‘arbitrary, or conscience shocking, in a constitutional sense.’"). But that

construction would not comport with the Supreme Court’s holding in Col-

lins which specifically precluded employment based analysis. 503 U.S. at

119 ("The employment relationship . . . is not of controlling signifi-

cance.").

2

The majority opinion seems to seize upon this language and carry it

much farther than the Supreme Court by defining "conduct that shocks the

conscience" as "conduct intended to injure in some way unjustifiable by

any government interest." Ante at 6. But the Supreme Court has defined

the standard in much broader terms and conceded that "the measure of

what is conscience shocking is no calibrated yard stick," but rather a stan-

dard that "‘point[s] the way’" to the correct result. Lewis, 523 U.S. at 847

(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied,

414 U.S. 1033, (1973)).

SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE 13

and footnote omitted), and made clear that, under some cir-

cumstances, "deliberate indifference" could shock the con-

science. See id. at 849-50 ("Deliberate indifference that

shocks in one environment may not be so patently egregious

in another . . . .").3 In distinguishing between these more diffi-

cult, middle-ground cases, the Supreme Court counseled judi-

cial discretion and warned that courts should engage in an

"exact analysis of circumstances" rather than "mechanical

application" of predetermined rules.4

Thus, the decisions in both Collins and Lewis underscore

the Supreme Court’s view that, at least in some cases, reckless

and deliberately indifferent government action may be arbi-

trary and egregious in a constitutional sense and thus provide

grounds for a viable § 1983 Due Process claim. In Collins, the

Supreme Court recognized that "potentially meritorious

[§ 1983 Due Process] claims by [an] employee" may include

circumstances where "the city [gives] an employee a particu-

larly dangerous assignment in retaliation for a political

speech, cf. St. Louis v. Praprotnik, 485 U.S. 112 (1988), or

3

The majority opinion appears to assert that only a person who has "al-

ready been deprived of [his or her] liberty" may claim "deliberate indiffer-

ence" as a basis for a claim under § 1983. Ante at 6. But the use of the

custodial example in Lewis is not intended to be exclusive, but merely to

illustrate a situation in which deliberate indifference would shock the con-

science. See Lewis, 523 U.S. at 851 ("[T]he description of the custodial

prison situation shows how deliberate indifference can rise to a constitu-

tionally shocking level . . . .").

4

Though the Supreme Court makes clear that cases involving a degree

of culpability less than intent to injure require analysis that is "less rigid

and more fluid," Lewis, 523 U.S. at 850, the majority attempts to impose

a rigid limitation on these cases; namely that, outside a custodial relation-

ship, the "shocks the conscience" standard can only be met by conduct

intended to injure. Ante at 6. Rather than following the law the Supreme

Court established in Collins and Lewis, the majority attempts to rewrite it

to conform with the dissenting opinion in Lewis. Cf. Lewis, 523 U.S. at

861-62 (Scalia, J., dissenting) (rejecting the "shocks the conscience" stan-

dard as a "throw back to highly subjective substantive-due-process meth-

odologies").

14 SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE

because of his or her gender, cf. Monell v. New York City

Dept. of Social Services, 436 U.S. 658 (1978)." Collins, 503

U.S. at 119. Likewise, in Lewis the Supreme Court recognized

that "[i]n Rochin v. California, 342 U.S. 165 (1952), the case

in which we formulated and first applied the shocks-the-

conscience test, it was not the ultimate purpose of the govern-

ment actors to harm the plaintiff, but they apparently acted

with full appreciation of what the Court described as the bru-

tality of their acts." Lewis, 523 U.S. at n.9 (emphasis added).

Significantly, the majority opinion fails to distinguish the

"potentially meritorious" claims identified by the Supreme

Court in Collins from those requiring an intent to injure.

Nonetheless, it is important to clarify that the majority opin-

ion when read in light of Collins necessarily recognizes,

among other things, that an allegation that an employer

assigned an employee to a dangerous job in retaliation for the

exercise of a constitutional right, where physical injury

results, certainly amounts to a plausible allegation of an intent

to injure. Although the "intent" in such cases may be an "in-

tent to deter exercise of a constitutional right" such an allega-

tion of intent would suffice to satisfy the majority opinion’s

"intent to harm" pleading requirement.

II.

In this case, it is unnecessary to engage in the type of judi-

cial discretion prescribed by Lewis to determine whether the

City’s alleged conduct was "conscience shocking." As the

majority correctly identifies, the facts here are similar to the

facts in Collins and those facing this Court in Waybright v.

Fredrick County, 528 F.3d 199 (4th Cir. 2008). As a result,

the issue presented can, and thus should, be resolved on nar-

row grounds.

Here, as in Collins, the petitioner claims that the city failed

to conduct proper training and supply adequate safety equip-

ment in the face of known hazards. The majority correctly

SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE 15

points out that these allegations are insufficient to claim a Due

Process violation. However, they are insufficient because

"failure to train or to warn . . . employees [i]s not arbitrary in

a constitutional sense." Collins, 503 U.S. at 130. The petition-

er’s claim fails because it attempts to transform a negligence

claim against the City into a violation of Due Process, which

the Court foreclosed in Collins, id., and reaffirmed in Lewis.

Lewis, 523 U.S. at 849. I agree with the majority that "[t]he

facts alleged in this case reveal a sad story that might well

support state tort claims," and that to "constitutionalize" the

claims would be unwise and unsupported by precedent. See

ante at 10.

Similarly, in Waybright, we found that a recruit who died

during training to become a firefighter could not state a claim

under § 1983 when his supervisor did not follow appropriate

safety protocol. Waybright, 528 F.3d at 208-09. Applying

Collins, we reasoned that negligent conduct was insufficient

to state a claim, id. at 206, and that "time to deliberate" does

not "transform[] negligent error into constitutionally shocking

conduct." Id. Like in Waybright, the petitioner’s § 1983 claim

in this case should be dismissed because of the shortcomings

of what the petitioner has alleged (i.e., negligence). The prob-

lem with petitioner’s complaint is not that it fails to allege an

"intent to harm"—it’s that, like in Collins and like in Way-

bright, the petitioner’s factual allegations are not "arbitrary"

or "shocking to the conscience" in a "constitutional sense."

Collins, 503 U.S. at 127; Waybright, 528 F.3d at 206.

Following Collins and Waybright, I agree with affirming

the district court’s decision to dismiss on the narrow grounds

that there is no duty on municipalities to "provide certain min-

imal levels of safety and security in the workplace," Collins,

503 U.S. at 130, that "failure to train or to warn . . . employ-

ees [is] not arbitrary in a constitutional sense," id., and that,

as a result, the petitioner’s factual allegations are not "arbi-

trary" or "shocking to the conscience" in a "constitutional

sense." Id. at 127; Waybright, 528 F.3d at 206. But, in affirm-

16 SLAUGHTER v. MAYOR AND CITY COUNCIL OF BALTIMORE

ing the district court, we should also recognize that govern-

ment employees are not categorically excluded from claiming

deliberate indifference as a basis for Due Process claims.5

III.

Because I would decide this case on narrow grounds, and

because it is necessary to state clearly that under the majori-

ty’s opinion, employees are not without constitutional protec-

tions from reckless and indifferent government action that

egregiously and arbitrarily deprives persons of life, liberty, or

property, I respectfully concur in the result only.

5

The majority characterizes "deliberate indifference" as a different stan-

dard for evaluating claims. Ante at 6 ("[T]his standard does not apply to

persons in an employment relationship with the government."). But this

directly contradicts the Supreme Court’s statement in Lewis that "deliber-

ate indifference" is not a different standard, but rather a degree of culpabil-

ity that, in certain cases, may characterize conduct that "shocks the

conscience." See Lewis, 523 U.S. at 852 ("[T]he description of the custo-

dial prison situation shows how deliberate indifference can rise to a consti-

tutionally shocking level . . . .").