# Peter Clayton McClendon v. City of Columbia, City of Columbia James R. Carney > Court of Appeals for the Fifth Circuit · September 5, 2002 · 305 F.3d 314 URL: https://www.frixlaw.com/law-library/cases/9495397 ## Case - **Full name:** Peter Clayton McCLENDON, Plaintiff-Appellant, v. CITY OF COLUMBIA; Et Al., Defendants, City of Columbia; James R. Carney, Defendants-Appellees - **Court:** Court of Appeals for the Fifth Circuit - **Decided:** September 5, 2002 - **Citations:** 305 F.3d 314; 2002 U.S. App. LEXIS 18318; 2002 WL 2027329 - **Precedential status:** Published - **Opinion:** Dissent by Wiener - **Judges:** King, Jolly, Higginbotham, Davis, Jones, Smith, Wiener, Barksdale, Garza, -Demoss, Benavides, Stewart, Parker, Dennis, Clement - **Cited by:** 558 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9495397 ## How later opinions describe it (automated extraction) - concluding that the adoption of the state-created-danger doctrine in six circuits was insufficient to create a robust consensus because the circuits were not unanimous in defining the doctrine’s its “contours” or applying it “to a factual context similar to that of the instant… - holding that a right may be clearly established based on controlling authority — Supreme Court or Fifth Circuit case law — or " ‘a consensus of cases of persuasive authority' " in other circuits (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)) - holding that “neither this court nor the Supreme Court has yet determined whether a citizen has a constitutional right to be free from state-created dangers” and because the plaintiff failed to establish the necessary elements of the theory it would not apply even if available - concluding that, although three other circuits recognized constitutional right, their differing "mental state" requirements did not fairly warn government official of what conduct would contravene that right - holding that a right may be clearly established based on controlling authority—Supreme Court or Fifth Circuit case law—or “‘a consensus of cases of persuasive authority’” in other circuits (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)) ## Opinion text WIENER, Circuit Judge, concurring in PARKER, Circuit Judge’s, dissent and further dissenting from the en banc opinion: I concur in Judge Parker’s dissent, writing a few additional lines of my own just to emphasize one point and to advance another. First, I am as incredulous as Judge Parker that the majority can take the position that “McClendon has not adduced any evidence suggesting that Detective Carney acted with anything other than ordinary negligence in the instant case,” and that “[tjhere is no indication that Detective Carney was aware that Loftin had any violent intentions toward McClendon.” Not only did Carney commit an overt act of commission — an unlawful one at that— by arming Loftin (whom Carney knew to be an intimate member of the illicit drug culture), but he did so in direct response to being informed by Loftin of an impending confrontation between Loftin and McClen-don that only the most naive Pollyanna could expect would be anything other than physical and violent. Given all the information that Carney had, it is this court that is being naive about the sufficiency of the evidence amounting to considerably more than negligence: recklessness and, ultimately, deliberate indifference to McClendon’s right to inviolate bodily integrity. More importantly to me, however, is what — with the utmost respect — I view as a misapprehension of the central issue of this case — the kind of constitutional right proffered by McClendon that was required to have been clearly established at the time if he were to avoid an adverse judgment grounded in qualified immunity. All the wrangling over “state-created danger” is a classic red herring which has led this court away from the proper analysis. Long before the instant incident, the constitutional right to be free from state violation of bodily integrity was well established. It is that right that McClendon asserts: His bodily integrity was violated when he was ruthlessly shot in the face by Loftin with the very gun that had been unlawfully entrusted to him by Detective Carney. McClendon does not contend that Carney, as a state actor, created the danger that produced his blinding injury; he does contend — correctly—that (1) Carney had to be totally aware of the potential of a physically violent confrontation between McClendon and Loftin, (2) Carney had to know (or at least is presumed to have known) that the act of arming Loftin was unlawful under Mississippi law, (3) the overt, unlawful act of commission in arming Loftin was undeniably reckless and thus done with deliberate indifference, and (4) Carney’s state act not only increased and enhanced the likelihood that McClen-don’s bodily integrity would be violated; it made it a virtual certainty. This leaves as the only open issue not whether the danger was state created (or even state enhanced) but whether the reckless, deliberately indifferent act of Detective Carney, as a state actor, was a producing cause of the violation of McClendon’s constitutional right. If this case presents any legal question, therefore, it is whether there is a sufficient nexus between the deliberately indifferent *343 state act and the violation of the citizen’s right to bodily integrity. Stated differently, was the intervening action of the non-state actor, Loftin, which clearly violated the victim’s bodily integrity, sufficiently causally connected to the behavior of the state actor, Detective Carney, as to constitute the legally actionable cause of the violation of McClendon’s constitutional right? We have previously held that a remote state actor can be denied qualified immunity when his deliberate indifference exposes the victim to a constitutional violation perpetrated by an interposed party, even in situations that would be non-custodial under DeShaney. For example, we denied qualified immunity to the school principal in Doe v. Taylor ISD 1 because his deliberate indifference, in light of information no more damning than that possessed by Detective Carney, not only increased the likelihood of the young schoolgirls’ bodily integrity being violated by a third party (the predatory teacher/coach whom the principal’s alleged recklessness allowed to continue in a position of predation); it made the violation possible. That the teacher/coach was himself a state actor and the instant confidential informant was not is a distinction without a difference to this taxonomy. In both cases, the interposed party acted precisely as the facts clearly known to the state actor — the school principal in Doe and Detective Carney here— would predict. The state actor’s deliberate indifference was the sine qua non to the constitutional violation. Because a genuine issue of material fact is presented in this case regarding the Detective’s role in the violation of McClen-don’s clearly established constitutional right to an inviolate bodily integrity, I respectfully dissent from the grant of qualified immunity grounded in the spurious and inapplicable issue of state-created danger. This is a garden variety case implicating the violation of a clearly established constitutional right, which violation flowed from the reckless and unlawful — deliberately indifferent — behavior of a state actor that was objectively unreasonable under the plethora of facts known to him at the time. This case should go to trial to flesh out all the facts and let the jury determine whether the deliberate indifference of Detective Carney had a sufficient nexus with the constitutional violation suffered by McClendon, given the interposition of the confidential informant (not a state actor) who was armed by Carney and sent forth to a violent confrontation that Carney had to know was imminent. . 15 F.3d 443 (5th Cir.l994)(en banc). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9495397. Public record. Not legal advice.