Amicus Curiae Brief — Estate of Te’Juan Johnson, Petitioner v. Amanda Rakes, Administrator of the Estate of Amylyn Slaymaker and Next Friend to the Minor Children G. C. and M. C.

Supreme Court briefMay 5, 2025

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No. 24-1050

In The

Supreme Court of the United States

ESTATE OF TE’JUAN JOHNSON,

Petitioner,

AMANDA RAKES, ADMINISTRATOR OF THE

ESTATE OF AMYLYN SLAYMAKER AND NEXT

FRIEND TO THE MINOR CHILDREN G.C. AND M.C.,

Respondent.

On Petition for a Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

BRIEF OF THE LOCAL GOVERNMENT LEGAL

CENTER, INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION, NATIONAL ASSOCIATION OF

COUNTIES, NATIONAL LEAGUE OF CITIES, ILLINOIS

MUNICIPAL LEAGUE, ACCELERATE INDIANA

MUNICIPALITIES, ASSOCIATION OF IDAHO CITIES,

GEORGIA MUNICIPAL ASSOCIATION, INC.,

KENTUCKY LEAGUE OF CITIES, LEAGUE OF

OREGON CITIES AND VIRGINIA MUNICIPAL LEAGUE

AS AMICI CURIAE IN SUPPORT OF PETITIONER

AMY E. HOYT

GREGG W. KETTLES

Counsel of Record

BEST BEST & KRIEGER LLP

3390 University Avenue, 5th Floor

P.O. Box 1028

Riverside, CA 92502

(951) 686-1450

gregg.kettles@bbklaw.com

Counsel for

Amici Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

TABLE OF CITED AUTHORITIES ......................... ii

STATEMENT OF INTEREST .................................. 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ................................................................ 5

A. State-created danger exception cases subject

local governments to liability for problems they

did not create ............................................................... 5

1. Local governments face significant burdens

when courts expand due process to include

liability for wrongful or criminal acts of

non-State actors .....................................................5

2. The expansion of the state-created danger

exception has led to perverse results that

further burden local governments ..................... 10

3. The expansion of the state-created danger

exception threatens to discourage local

government from providing basic services ....... 12

B. Federalism principles require that local agency

liability for harms inflicted by third parties be

resolved by state tort law.......................................... 13

C. Certiorari is warranted to clarify what authority

is necessary for the law to be “clearly established”

for the purposes of qualified immunity .................. 17

CONCLUSION ........................................................... 23

TABLE OF AUTHORITIES

Cases

Abalos v. Bernalillo County Dist. Atty’s Office,

105 N.M. 554, 734 P.2d 794 (1987) ................................ 16

Ashcroft v. al–Kidd,

563 U.S. 731 (2011) ......................................................... 17

Bond v. United States,

564 U.S. 211 (2011) ......................................................... 14

Bonilla v. City of Covina,

2019 WL 8013104 (C.D. Cal. Aug. 22, 2019) ................ 16

Bui v. Am. Telephone & Telegraph Co. Inc.,

310 F.3d 1143 (9th Cir. 2002) ......................................... 15

Carroll v. Carman,

574 U.S. 13 (2014) ..................................................... 18, 19

City & Cnty. of San Francisco, Calif. v. Sheehan,

575 U.S. 600 (2015) ...................................... 17, 18, 19, 22

City of Grants Pass, Oregon v. Johnson,

603 U.S. 520 (2024) ........................................................ 14

Crawford-El v. Britton,

523 U.S. 574 (1998) .......................................................... 5

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,

489 U.S. 189 (1989) .......................................................... 3

Denius v. Dunlap,

209 F.3d 944 (7th Cir. 2000).......................................... 20

Drummond ex rel. Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003) ........................................ 19

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .................................................. 17, 18

iii

Hatch v. Dep’t for Child., Youth & Their Fams.,

274 F.3d 12 (1st Cir. 2001) ............................................ 20

In re Methyl Tertiary Butyl Ether (MTBE)

Products Liability Litigation,

725 F.3d 65 (2d Cir. 2013) ............................................. 14

Irish v. Fowler,

979 F.3d 65 (1st Cir. 2020) ...................................... 11, 12

LA Alliance for Human Rights v.

County of Los Angeles,

14 F.4th 947 (9th Cir. 2021) .......................................... 12

Mary M. v. City of Los Angeles,

54 Cal. 3d 202 (1991) ...................................................... 15

McClendon v. City of Columbia,

305 F.3d 314 (5th Cir. 2002).......................................... 20

Medina v. City & Cty. of Denver,

960 F.2d 1493 (10th Cir. 1992) ...................................... 22

Moore v. Hartman,

388 F.3d 871 (D.C. Cir. 2004),

rev’d on other grounds,

547 U.S. 250 (2006) ........................................................ 19

Morris v. Noe,

672 F.3d 1185 (10th Cir. 2012) ...................................... 22

Mullenix v. Luna,

577 U.S. 7 (2015) .............................................................. 5

Murguia v. Langdon,

61 F.4th 1096 (9th Cir.) reh’g denied 73 F.4th

1103 (9th Cir. 2023), cert. denied 144 S. Ct. 553

(2024) ............................................................... 6, 11, 12, 14

Ohio Civil Serv. Employees Ass’n v. Seiter,

858 F.2d 1171 (6th Cir. 1988) ........................................ 21

Owens ex rel. Owens v. Lott,

372 F.3d 267 (4th Cir. 2004).......................................... 19

Pabon v. Wright,

459 F.3d 241 (2d Cir. 2006) ........................................... 21

Pauly v. White,

874 F.3d 1197 (10th Cir. 2017) ...................................... 22

Reed v. Gardner,

986 F.2d 1122 (7th Cir. 1993) .................................. 11, 12

Reichle v. Howards,

566 U.S. 658 (2012) .................................................. 18, 19

Shattuck v. Anderson,

2021 WL 466489 (S.D. Ind. Feb. 9, 2021) .................... 16

Taj Mahal Travel, Inc. v. Delta Airlines, Inc.,

164 F.3d 186 (3d Cir. 1998) ........................................... 14

Vinyard v. Wilson,

311 F.3d 1340 (11th Cir. 2002) ...................................... 22

Walton v. City of Southfield,

995 F.2d 1331 (6th Cir. 1993), superseded by

statute on other grounds as recognized in

Livermore ex rel. Rohm v. Lubelan,

476 F.3d 397 (6th Cir. 2007)..................................... 20-21

White v. Pauly,

580 U.S. 73 (2017) ............................................................ 5

Williams v. Bitner,

455 F.3d 186 (3d Cir. 2006) ........................................... 19

Wilson v. Layne,

526 U.S. 603 (1999) .................................................. 18, 19

Wood v. Ostrander,

879 F.2d 583 (9th Cir. 1989).................................... 11, 12

Wyeth v. Levine,

555 U.S. 555 (2009) ........................................................ 14

Constitutional Provisions

U.S. Const. amend. XIV ......................................... 3, 11, 15

Statutes and Rules

42 U.S.C. § 1983....................................... 2, 5, 7, 8, 9, 17, 22

42 U.S.C. § 1988................................................................... 7

Colorado Statutes 13-21-131(2)(b)................................... 16

Fla. Stat. § 768.28(5)(a)..................................................... 15

Idaho Code § 6-903(1) ....................................................... 15

Illinois Compiled Statutes Chapter 750, Act 60,

§ 305 ................................................................................ 16

Indiana Statutes § 34-13-3-3(8) ....................................... 16

Indiana Statutes § 34-13-3-3(14) ..................................... 16

Mass. Gen. Laws Ann. ch. 258, § 2 .................................. 15

S. Ct. R. 37.2 ........................................................................ 1

S. Ct. R. 37.6 ........................................................................ 1

Other Authorities

Kenneth S. Abraham, Police Liability Insurance

After Repeal of Qualified Immunity, and

Before, 56 Tort, Trial & Insurance Practice Law

Journal (2021) .................................................................. 8

Benchmark Analytics, Three Factors Driving

Increases in Municipal Insurance Premiums

(January 14, 2022), available at

https://www.benchmarkanalytics.com/blog/threefactors-driving-increases-in-municipalinsurance-premiums/ ...................................................... 8

Michael C. Biasotti, Management of the Severely

Mentally Ill and Its Effects on Homeland

Security (Naval Postgraduate School Thesis,

2011), available at

https://mentalillnesspolicy.org/crimjust/homelan

dsecuritymentalillness.html ........................................... 6

Jonathan Bilyk, City Council committee rejects

$1.25 M for family of Dexter Reed, who shot at

cops, Cook County Record (April 11, 2025),

available at

https://cookcountyrecord.com/stories/670850384city-council-committee-rejects-1-25m-for-familyof-dexter-reed-who-shot-at-cops ................................... 8

Larry K. Gaines & Victor E. Kappeler, Policing in

America (9th ed. 2021) ................................................ 7, 8

https://www.insd.uscourts.gov/court-information ......... 10

Nathan James, Jonathan H. Duff, Jill C. Gallagher,

Isobel Sorenson, Issues in Law Enforcement

Reform: Responding to Mental Health Crises,

Congressional Research Service R47285

(October 17, 2022), available at

https://www.congress.gov/crs-product/R47285 ............ 6

Office of the Clerk of the Court, Caseload

Statistics Data Tables,

https://www.uscourts.gov/statisticsreports/caseload-statistics-data-tables ......................... 9

vii

Police Officers by State 2025, WORLD POPULATION

REV., https://worldpopulationreview.com/staterankings/police-officers-by-state ................................. 17

Philip Matthew Stinson Sr. & Steven L. Brewer

Jr., Federal Civil Litigation Pursuant to 42

U.S.C. § 1983 as a Correlate of Police

Crime, 30 Crim. Just. Pol’y Rev. 223 (2019) ......... 7, 8, 9

Summary of Petition to End Qualified Immunity

for Police Officers and Other Government

Employees Certified,

https://www.ohioattorneygeneral.gov/Media/Ne

ws-Releases/April-2025/Summary-of-Petition-toEnd-Qualified-Immunity-for ........................................ 16

STATEMENT OF INTEREST 1

The Local Government Legal Center (“LGLC”) is a

coalition of national local government organizations

advocating for local government positions before the

Supreme Court. The National Association of Counties,

the National League of Cities, and the International

Municipal Lawyers Association are the founding

members of the LGLC.

The International Municipal Lawyers Association

(“IMLA”) is a non-profit organization of more than 2,500

members dedicated to advancing the interests and

education of local government lawyers. IMLA’s mission

is to advance the responsible development of municipal

law through education and advocacy by providing the

collective viewpoints of local governments around the

country on legal issues before the Supreme Court of the

United States, the United States Courts of Appeals, and

state supreme and appellate courts.

The National Association of Counties (“NACo”) is the

only national organization that represents county

governments in the United States. Founded in 1935,

NACo serves as an advocate for the nation’s 3,069 county

governments and works to ensure that counties have the

resources, skills, and support they need to serve and lead

their communities.

The National League of Cities (“NLC”) is the oldest

and largest organization representing municipal

Pursuant to Supreme Court Rule 37.6, amici curiae state that

no counsel for any party authored this brief in whole or in part and

that no entity or person, aside from amici curiae, their members, and

their counsel, made any monetary contribution toward the

preparation or submission of this brief. Pursuant to Supreme Court

Rule 37.2, counsel of record for all parties have received timely notice

of the intent to file this brief.

governments throughout the United States. Working in

partnership with forty-nine state municipal leagues, NLC

is the voice of over 19,000 American cities, towns, and

villages, collectively representing more than 218 million

Americans. NLC works to strengthen local leadership,

influence federal policy, and drive innovative solutions.

The Illinois Municipal League (“IML”) is a not-forprofit, non-political association that represents the

interests of the 1,294 cities, villages, and towns in Illinois.

IML’s mission is to articulate, defend, maintain, and

promote the interests and concerns of Illinois’s

municipalities, by advocating on their behalf before the

Illinois General Assembly, as well as before the federal

government and in courts.

Additional amici are associations devoted to

promoting the interests of local government through

education and advocacy, and join this brief to express

their concerns over the state-created danger exception

and the need for clarity regarding qualified immunity.

Amici’s interest in this case flows from the negative

impact the Seventh Circuit’s fractured decision will have

on legitimate law enforcement activity. By reframing an

officer’s innocuous comment as the predicate for a federal

state-created danger claim and a violation of clearly

established law, the Circuit overrode the primacy of fully

adequate state remedies. Such repurposing of Due

Process principles and indecipherable application of

clearly established standards will ensure that more

unfounded claims under 42 U.S.C. § 1983 are lodged

against law enforcement. The result will be unwarranted

costs to local government and hesitancy by public

servants to go beyond the lowest level of service.

Amici have a uniquely valuable perspective on the

relevant issues in this case, and are acutely aware of the

significant problems that the decision below will pose for

local governments throughout the United States. Under

the Seventh Circuit’s holding, which is at odds with more

than 30 years of Supreme Court precedent, those

governments will face increased liability premised on the

judicially-fashioned “state-created danger” exception

when a private person harms another, even where the

State neither coerces nor inflicts any harm. Their officials

will also face individual liability when wrongfully denied

qualified immunity due to confusion as to clearly

established law.

Amici respectfully submit this brief to demonstrate

the negative impact the decision below will have on local

governments and their officials and the critical need for

this Court to end the Circuit conflict regarding the statecreated danger exception and to clarify qualified

immunity.

SUMMARY OF THE ARGUMENT

In DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs.,

489 U.S. 189, 197 (1989), this Court issued its foundational

statement that the Fourteenth Amendment generally

does not obligate a State or local government to protect

one individual against violence from another: “As a

general matter, … a State’s failure to protect an

individual against private violence simply does not

constitute a violation of the Due Process Clause.”

DeShaney articulates that, while due process protects

individuals from governmental deprivations of life,

liberty or property, it accords no such affirmative

protection against deprivations by private actors. The

state created danger theory is a largely unsupportable

exception to this rule.

Unsurprisingly, as explained in the Petition, the

Circuits are sharply divided on the state-created danger

exception. It has imposed unwarranted liability on local

governments and their officials and employees, for

wrongful, and often criminal, conduct committed by

private parties. As documented below, the exception

significantly burdens local governments and undermines

officers making split-second decisions in the field.

This misadventure is not limited to law enforcement.

It is easy to imagine local governments being discouraged

by the threat of the exception to providing even basic

services, such as libraries, park and recreation activities,

or undertaking other duties such as homeless

encampment cleanups. If a casual utterance creates

governmental liability for a crime by a third party, other

public servants may decline to offer anything more than

the bare minimum of service to their constituents.

Importantly, there are remedies for miscues by law

enforcement and other public officials without requiring

federal causes of action. Recourse for tortious conduct,

even if committed by local governments and their agents,

is generally left to the States, which have carefully

designed tort schemes that balance competing interests

in holding government accountable. The state-created

danger exception inserts the national government into

matters properly reserved to state and local

determination.

Beyond improperly elevating a matter that should be

resolved by state mechanisms, the decision below also

confuses and erodes qualified immunity. It is textbook

law that qualified immunity applies “when an official’s

conduct ‘does not clearly violate established statutory or

constitutional rights of which a reasonable person would

have known.’” White v. Pauly, 580 U.S. 73, 78-79 (2017),

quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015). Here,

as the Petition explains, little was “clearly established,”

as evidenced by confusion among the Circuit Judges. If

jurists formally trained in constitutional law cannot

make a reasoned decision, how could an officer in a

crisis situation know whether his actions violated clearly

established law? As discussed below, the Circuit’s

confusion under the facts of this case is only part of a

broader uncertainty about qualified immunity as a whole.

The nationwide lack of uniformity on the state-created

danger exception and the confusion surrounding qualified

immunity require this Court’s attention. The Petition

should be granted and the decision below should be

reversed.

ARGUMENT

State-created danger exception cases

subject local governments to liability

for problems they did not create

Local governments face

significant burdens when courts

expand due process to include

liability for wrongful or criminal

acts of non-State actors

While Section 1983 plays a critical role in protecting

federal rights, this Court has recognized that it also

saddles local governments with tremendous “expenses of

litigation” and “diversion of official energy from pressing

public issues.” Crawford-El v. Britton, 523 U.S. 574, 590

n. 12 (1998). These burdens are not warranted for alleged

Due Process violations where a state actor neither

inflicted harm nor coerced the victim.

The Seventh Circuit’s decision creates particular

dilemmas for law enforcement given massive increases

in two societal problems: mental illness and addiction.

A nationwide survey of 2,406 senior law enforcement

officials showed that police are overwhelmed dealing with

the severely mentally ill.

Michael C. Biasotti,

Management of the Severely Mentally Ill and Its Effects

on Homeland Security (Naval Postgraduate School

Thesis,

2011),

28,

33,

79,

available

https://mentalillnesspolicy.org/crimjust/homelandsecurit

ymentalillness.html (last accessed Apr. 8, 2025).

Law enforcement officers are often the first

responders to individuals experiencing a mental health

crisis.

Nathan James, Jonathan H. Duff, Jill C.

Gallagher, Isobel Sorenson, Issues in Law Enforcement

Reform: Responding to Mental Health Crises,

Congressional Research Service R47285 (Oct. 17, 2022),

available

https://www.congress.gov/crsproduct/R47285 (last accessed Apr. 8, 2025). Cities and

other local agencies have undertaken programs to train

law enforcement officers and support them with other

professionals for these types of encounters. Id. 3-8.

These programs may reduce use of force during an

encounter between a seriously mentally ill person and a

law enforcement officer, but they will not reduce the

number of such interactions. And they are unlikely to

reduce the risk that can arise after the encounter. What

happens after the police leave can unfairly give rise to

liability under the state-created danger exception. See,

e.g., Murguia v. Langdon, 61 F.4th 1096, 1113-1115 (9th

Cir.) reh’g denied 73 F.4th 1103 (9th Cir. 2023), cert.

denied 144 S. Ct. 553 (2024) (father pled plausible liability

under state-created danger exception by alleging that

police officer knew that mother was experiencing mental

health crisis, but nevertheless left children alone with

mother in motel room overnight, where mother later

drowned them).

Structural factors worsen the situation. Plaintiffs with

grievances against their local governments often bring

these suits, encouraged by plaintiff’s lawyers seeking to

recover attorneys’ fees. See Philip Matthew Stinson Sr.

& Steven L. Brewer Jr., Federal Civil Litigation

Pursuant to 42 U.S.C. § 1983 as a Correlate of Police

Crime, 30 Crim. Just. Pol’y Rev. 223, 227 (2019)

(attributing the “explo[sion]” of § 1983 litigation in cases

alleging police misconduct in part to the availability of

attorneys’ fees under §1988 [hereinafter Stinson &

Brewer]. Given those incentives, expansion of the statecreated danger exception will only increase the alreadysubstantial volume of Section 1983 suits facing local

governments.

The detrimental impact of those cases will be

significant.

The average jury award against a

municipality in such cases is estimated to be

approximately $2 million, and a “six- or seven-figure

award against a city” is “not uncommon.” Larry K.

Gaines & Victor E. Kappeler, Policing in America 346

(9th ed. 2021). One study of 151 local law enforcement

agencies found an average annual legal liability of around

$13.8 million. Id. To mitigate the risk of such awards,

local governments are often forced to secure “extremely

expensive” liability insurance, only to find that “premium

rates can skyrocket, or companies may refuse to insure

the [municipality] at all” if the municipality finds itself

litigating multiple suits in defense of itself and its local

officials. Id.

For cash-strapped local governments, these costs cause

severe financial difficulties, wreaking havoc on municipal

budgets and diverting funds away from critical local priorities.

And faced with the risk of these exorbitant costs, local

governments often make the Hobson’s choice to settle

even meritless Section 1983 actions. Cf. Gaines &

Kappeler, supra, at 346-47 (noting that “more than half”

of all cases alleging police misconduct are settled out of

court); Stinson & Brewer, supra, at 226. Unfortunately,

these settlements “can lead to the filing of frivolous

lawsuits” aimed at procuring even more settlements. Id.

The bottom line is that Section 1983 actions “have nearly

bankrupted some municipalities and townships.” Id. at

346.

Local governments are increasingly challenged to find

insurance against this litigation, facing steep increases in

municipal insurance premiums. Benchmark Analytics,

Three Factors Driving Increases in Municipal

Insurance Premiums (Jan. 14, 2022), p. 1, available at

https://www.benchmarkanalytics.com/blog/three-factorsdriving-increases-in-municipal-insurance-premiums/

(last accessed April 8, 2025).

A primary driver of that increase is police liability

insurance premiums, which are considerably higher than

in the past. Kenneth S. Abraham, Police Liability

Insurance After Repeal of Qualified Immunity, and

Before, 56 Tort, Trial & Insurance Practice Law Journal

31, 38 (2021). Insurers perceive that police officers and

their employers are more likely to be held liable, and the

size of the judgment is likely to be higher, when police

misconduct is alleged. Id. Cities are presented with a

difficult decision – cave to exorbitant settlement demands

or take their chances at trial. See Jonathan Bilyk, City

Council committee rejects $1.25 M for family of Dexter Reed,

who shot at cops, Cook County Record (Apr. 11, 2025),

available at https://cookcountyrecord.com/stories/670850384city-council-committee-rejects-1-25m-for-family-ofdexter-reed-who-shot-at-cops (last accessed Apr. 29, 2025).

Large municipal payouts for alleged police misconduct

may have encouraged the recent rise in private civil

rights filings in the federal courts. See Table 1,

https://imla.org/wp-content/uploads/2025/05/Table-1-TotalU.S.-District-Courts-PRIVATE-Civil-Cases-Based-onFederal-Question-Based-on-Civil-Rights-Other-CivilRights-Category-c1-c1.pdf; Office of the Clerk of the

Court,

Caseload

Statistics

Data

Tables,

https://www.uscourts.gov/statistics-reports/caseloadstatistics-data-tables (last accessed Feb. 19, 2025), Table

C-2 U.S. District Courts – Civil Cases Filed, by

Jurisdiction and Nature of Suit (September 30, 20002024) (total U.S. District Courts, Private Civil Cases,

Based on Federal Question, Based on Civil Rights –

Other Civil Rights). 2 Private civil rights filings in the

U.S. district courts increased from 13,665 to 14,626

during the 12 months ending September 30, 2023,

compared to the prior period, an increase of seven

percent. Id. Private civil rights filings increased to

16,476 during the next 12 months, ending September

30, 2024, an increase of 12 percent. Id. The number of

private civil rights filings in the 12 months ending

September 30, 2024 was the highest since 2006. Id.

The burden on federal courts from this increase is

substantial. In the Southern District of Indiana, where

These numbers include all actions in the federal district courts

categorized by the Office of the Clerk of Court as “Private Civil Cases,

based on Federal Question” and “Other Civil Rights” for the years

2000-2024. Caseload Statistics, supra, Table C-2. “Civil rights cases –

other” exclude actions for voting, employment, housing, welfare, ADAemployment, ADA-other, and education, depending on the year. Id.

The federal courts do not report Section 1983 cases in their statistical

reports. See id.; Stinson & Brewer, supra, at 226-227. But the bulk of

these civil rights cases are § 1983 actions—and the total number of

§ 1983 actions may be even higher, because the numbers above do not

include employment discrimination suits or prisoner petitions. Id.

this case was filed, there were 480 private civil rights

cases filed in the 12 months ending September 30, 2024. See

Table 2, https://imla.org/wp-content/uploads/2025/05/Table2-U.S.-District-Court-PRIVATE-Civil-Cases-Based-onCivil-Rights-for-SD-Ind.-7th-Cir-c1-c1.pdf; Office of the

Clerk of the Court, Federal Judicial Caseload Statistics,

Civil Cases Filed, by Jurisdiction, Nature of Suit, and

District, https://www.uscourts.gov/statistics-reports/caseloadstatistics-data-tables (last accessed Feb. 19, 2025), Table C3 U.S. District Courts – Civil Cases Filed by Jurisdiction,

Nature of Suit, and District (September 30, 2000-2024)

(U.S. District Court, Private Civil Cases, Based on Civil

Rights, for the Southern District of Indiana). 3

The Southern District of Indiana has just four full-time

district court judges. See https://www.insd.uscourts.gov/courtinformation (last accessed Feb. 19, 2025). That works out

to 135 new private civil rights filings per judge for the 12

month period ending September 30, 2024. The expansion

of the state-created danger exception will only increase

these numbers.

The expansion of the statecreated danger exception has led

to perverse results that further

burden local governments

Several Circuits have expanded the state-created

danger exception, leading to perverse results where

simple oversights by governmental actors are treated as

constitutional violations.

These numbers include all actions in the Southern District of

Indiana categorized by the Office of the Clerk of Court as “Civil

Rights – US” and “Civil Rights – Private” for the years 2000-2024.

Caseload Statistics, supra, Table C-3. Civil rights filings are not

otherwise broken down by type. Id.

The Seventh Circuit’s split decision below – where an

officer’s two utterances of the word “yeah” were deemed

to result in a violation of the Fourteenth Amendment – is

a prime example of this misapplication of due process.

Murguia v. Langdon, supra, is one such case. There,

a mother who was experiencing a mental health crisis

tragically drowned her ten-month-old twins. The Ninth

Circuit held an officer potentially liable because he

drove the mother and the infants from a shelter to the

motel where the mother drowned them; a social worker

was potentially liable because she gave the officer

incorrect information, omitting that the mother had a

history of child abuse. Murguia v. Langdon, 61 F.4th at

1110-1117.

Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993) is

another example. There, police arrested the driver of a

vehicle – who was sober – and allowed the passenger –

who was drunk – to remain in the car with the keys to the

vehicle. Id. at 1123. Approximately two hours later, the

passenger drove the car and caused a head-on collision.

Id. The court found these allegations sufficient to state

a claim under the state-created danger exception. A

similar scenario arose in Wood v. Ostrander, 879 F.2d 583

(9th Cir. 1989); the court found potential liability on a

state-created danger theory where police arrested a

drunk driver, impounded the vehicle, and left the plaintiff

on the side of the road, where she accepted a ride from a

stranger and was raped. Id. at 586.

In Irish v. Fowler, 979 F.3d 65, 68-69 (1st Cir. 2020),

the plaintiff was kidnapped and raped by her exboyfriend, who also threatened to kill her. The plaintiff

reported the rape to the police, who later called the exboyfriend and left a voicemail asking for a return call.

The boyfriend heard the message and went on a crime

spree, murdering the plaintiff’s current boyfriend,

shooting her mother, and again kidnapping and raping

her. Id. at 67-71. The plaintiff alleged that the police

failed to protect her – and the court agreed that these

facts stated a claim under the state-created danger

exception. Id.

Like Amylyn Slaymaker, the plaintiffs in Murguia,

Reed, Wood, and Irish unquestionably were victims of

horrible crimes. But State actors did not commit those

crimes – a mentally ill mother, a violent husband, a drunk

driver, a rapist, and a rapist-murderer with a prior

criminal record did.

The expansion of the state-created

danger exception threatens to

discourage local government from

providing basic services

Beyond the myriad possibilities for error when law

enforcement personnel encounter mentally ill or addicted

persons, state-created danger liability interferes with a

much wider range of local services. Consider code

enforcement regarding homeless encampments. There

are hundreds of thousands of unhoused individuals in the

United States. LA Alliance for Human Rights v. County

of Los Angeles, 14 F.4th 947, 952 (9th Cir. 2021). Local

agencies have attempted to clean up homeless

encampments, to secure access to public parks and

sidewalks for all, protect the environment, and minimize

public health risks. See, e.g., id. at 953. The potential for

miscue is great: in conducting a cleanup, a local agency

may ask that homeless individuals move their

encampment. What happens if a third party steals the

homeless individual’s property while the individual is

moving? What happens if a homeless individual is

assaulted by a third party at their new location? What

happens if a homeless person assaults a third party at a

new encampment?

Fearful of incurring liability for the acts of third

parties, local agencies might be compelled to let the

encampment remain in place, regardless of the burdens

posed on the community-at-large.

It is not hard to imagine other innocuous

governmental directions could become unjustified fodder

for state-created danger litigation. For example, if public

works employees close stretches of roads and highways

from time to time for maintenance, what if a motorist

suffers a breakdown or accident at the hands of a third

party while following the detour route, and is then

assaulted?

Public facilities such as libraries, swimming pools, and

gymnasiums are open to the public for certain hours of

the day. At closing time patrons are directed to leave the

premises. What if a patron expresses fear of having to

wait outside for their ride to show up, but is told by facility

staff that it is closing time, is assured it is safe outside,

and is directed to leave? What if the patron is later

assaulted, or worse, outside while waiting for their ride?

The unwarranted liability that arises from judicial

rewriting of the Due Process Clause counsels against

local governments undertaking taking any such risks.

Federalism principles require that local

agency liability for harms inflicted by

third parties be resolved by state tort law

Petitioner correctly points out that the state-created

danger exception intrudes on the most traditional of state

roles, regulating “ordinary torts,” including those “that

happen to be committed by State actors.” Pet’n 18,

quoting Murguia v. Langdon, 73 F.4th 1103, 1104 (9th

Cir. 2023) (Bumatay, J. dissenting, joined by Callahan, J.,

Ikuta, J. and R. Nelson, J.) (internal quotation marks

omitted). The facts in this case point not to a federal

remedy but to state law negligence principles, if anything.

The Seventh Circuit’s disregard of federalism

precepts requires review by this Court, which has held

that “[i]mpermissible interference with state sovereignty

is not within the enumerated powers of the National

Government,” and “action that exceeds the National

Government’s enumerated powers undermines the

sovereign interests of States.” Bond v. United States, 564

U.S. 211, 225 (2011). Just last year, this Court re-affirmed

federalism principles in concluding that the Eighth

Amendment’s prohibition on cruel and unusual

punishment did not preclude local ordinances that

prohibited sleeping and camping on public property and

established progressive discipline beginning with civil

fines and ultimately allowing criminal prosecution for

trespass. City of Grants Pass, Oregon v. Johnson, 603

U.S. 520, 560 (2024). Grants Pass stressed that principles

of federalism preclude federal courts taking questions

that are traditionally within the province of the States

away “from the people and their elected leaders.” Id. at

556.

This Court and lower federal courts have repeatedly

held that Congress did not intend to preempt State tort

law. E.g., Wyeth v. Levine, 555 U.S. 555, 581 (2009) (State

law failure-to-warn claim not preempted by federal law);

Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d

186, 195 (3d Cir. 1998) (State law defamation claims not

preempted by federal law); In re Methyl Tertiary Butyl

Ether (MTBE) Products Liability Litigation, 725 F.3d

65, 79, 104 (2d Cir. 2013) (State law tort claims for

negligence, trespass, public nuisance, and failure-to-warn

not preempted by federal law); Bui v. Am. Telephone &

Telegraph Co. Inc., 310 F.3d 1143, 1147 (9th Cir. 2002)

(joining Third, Fifth, and Tenth Circuits in holding that

ERISA preemption clause does not preempt State-law

actions “involving allegation of negligence in the

provisions of medical care”).

Limiting the Fourteenth Amendment to affirmative

deprivations by state actors does not deprive victims of

recourse.

States typically have statutes waiving

sovereign immunity, enabling plaintiffs to hold State and

local governments and their agents liable for negligence

and tortious failures to act. See, e.g., Fla. Stat. §

768.28(5)(a) (“[t]he state and its agencies and subdivisions

shall be liable for tort claims in the same manner and to

the same extent as a private individual under like

circumstances”); Idaho Code § 6-903(1) (“every

governmental entity is subject to liability for money

damages arising out of its negligent or otherwise

wrongful acts or omissions and those of its employees

acting within the course and scope of their employment

or duties”); Mass. Gen. Laws Ann. ch. 258, § 2 (“[p]ublic

employers shall be liable for injury or loss of property or

personal injury or death caused by the negligent or

wrongful act or omission of any public employee while

acting within the scope of his office or employment, in the

same manner and to the same extent as a private

individual under like circumstances”).

State statutes waiving sovereign immunity are

consequential: state and local governmental entities and

their agents are regularly held liable under State tort law.

See, e.g., Mary M. v. City of Los Angeles, 54 Cal. 3d 202,

221 (1991) (upholding $150,000 jury verdict, where

plaintiff presented evidence that police officer misused

official authority by sexually assaulting woman whom

officer detained); Bonilla v. City of Covina, 2019 WL

8013104 *4 (C.D. Cal. Aug. 22, 2019) (denying city’s

motion for judgment on the pleadings re: negligence

claim arising out of plaintiff’s arrest); Shattuck v.

Anderson, 2021 WL 466489 *30-35 (S.D. Ind. Feb. 9,

2021) (granting summary judgment in favor of plaintiff

and against sheriff’s department under state law claims

of trespass and false imprisonment); Abalos v. Bernalillo

County Dist. Atty’s Office, 105 N.M. 554, 560, 734 P.2d

794 (1987) (plaintiff stated claim for negligence against

city and director of city jail for releasing suspect from

incarceration who sexually assaulted plaintiff).

Some states have gone further to hold themselves

accountable. Colorado has fully repealed qualified

immunity in suits against police under state law,

Colorado Statutes 13-21-131(2)(b), and Ohio is on the

verge of a similar repeal, Summary of Petition to

End Qualified Immunity for Police Officers and

Other

Government

Employees

Certified,

https://www.ohioattorneygeneral.gov/Media/NewsReleases/April-2025/Summary-of-Petition-to-EndQualified-Immunity-for (last accessed Apr. 30, 2025).

Illinois law imposes liability on law enforcement officials

for certain acts and omissions, where “a result of willful

or wanton misconduct.” Illinois Compiled Statutes

Chapter 750, Act 60, § 305. The Indiana Tort Claims Act

lists several immunities, including for “enforcement” or

failure to “enforce . . . a law” and “[m]isrepresentation if

unintentional.” Indiana Statutes § 34-13-3-3(8), (14). The

variety in these approaches is the very essence of

American federalism.

In sum, States have an interest in enacting tort claim

statutes to define the liability of their governmental

entities and agents for acts and omissions. As indicated

in the references above, States have done so. There is no

gap left by State inaction that requires expansion of a

state-created danger exception to federal due process.

Certiorari is warranted to clarify what

authority is necessary for the law to be

“clearly established” for the purposes of

qualified immunity

The

decision

below

reveals

fundamental

uncertainty about the parameters of qualified

immunity. In so doing, it subjects more than 55,150 law

enforcement officers in the Seventh Circuit to liability

by fumbling the standards in Supreme Court

precedent. 4

The Seventh Circuit’s confusion is understandable.

For decades, local government officials, courts, and

litigants have understood that a government official is

not liable under Section 1983 for a constitutional

violation unless it was clearly established at the time of

the violation that the conduct in question violated the

law. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);

see also City & Cnty. of San Francisco, Calif. v.

Sheehan, 575 U.S. 600, 611 (2015), quoting Ashcroft v.

al–Kidd, 563 U.S. 731, 741 (2011) (explaining “[a]n

officer cannot be said to have violated a clearly

established right unless the right’s contours were

sufficiently definite that any reasonable official in

[his] shoes would have understood that he was

violating it, meaning that existing precedent ... placed

the statutory or constitutional question beyond

Police Officers by State 2025, WORLD POPULATION REV.,

https://worldpopulationreview.com/state-rankings/police-officers-bystate (last accessed April 23, 2025), for states of Indiana, Illinois and

Wisconsin.

debate.”) (internal quotations and citations omitted).

The Harlow Court explained the importance of this

requirement: an official could not “fairly be said to

‘know’ that the law forbade conduct” if it was “not

previously identified as unlawful.” Harlow, 457 U.S. at

818.

But Harlow expressly left open the question of

what decisional authority – that of the Supreme Court,

Courts of Appeals, or even district courts – could

clearly establish the law. Harlow, 457 U.S. at 810,

n. 32. That question has been percolating in the lower

courts for more than forty years and there is sharp

disagreement among the Circuits regarding the

question. That uncertainty has serious consequences

for local governments and their officials who need

sufficient notice to avoid liability in the almost limitless

number of situations where they may encounter the

public.

This Court has implicitly acknowledged this open

question without deciding it. See Sheehan, 575 U.S. at

614 (noting “even if a controlling circuit precedent

could constitute clearly established federal law in these

circumstances” it did not do so in this case) (internal

quotations omitted) (emphasis added); Carroll v.

Carman, 574 U.S. 13, 17 (2014) (accord Reichle v.

Howards, 566 U.S. 658, 665 (2012) (“[a]ssuming

arguendo that controlling Court of Appeals’ authority

could be a dispositive source of clearly established

law in the circumstances” but finding that it failed to

do so in the particular case). Although the Court in

Wilson v. Layne had implied that controlling

authority from the jurisdiction in question or even a

“consensus of cases of persuasive authority” might

clearly establish the law for qualified immunity

purposes. 526 U.S. 603, 617 (1999), that dicta predates

Sheehan, Carroll, and Reichle, which all imply that

only a Supreme Court precedent or at the very least a

controlling circuit court precedent from the

jurisdiction might suffice, leaving litigants and courts

guessing as to what authority may clearly establish the

law. The Court in Sheehan also undermines the idea

that Wilson required a “consensus of authority” when

Sheehan noted “to the extent that a ‘robust consensus

of cases of persuasive authority’ could itself clearly

establish the federal right respondent alleges, no such

consensus exists here.” Sheehan, 575 U.S. at 617

(emphasis added).

That lack of clarity has spawned complete disarray

in the circuit courts. For example, the Third and

Fourth Circuits look to the Supreme Court, their own

decisions, decisions of the highest state court, or

absent that, persuasive authority from other circuits to

determine if the law is clearly established. See Owens

ex rel. Owens v. Lott, 372 F.3d 267, 280 (4th Cir. 2004);

Williams v. Bitner, 455 F.3d 186, 192–93 (3d Cir. 2006).

The DC Circuit limits the use of case law from other

circuits to only circumstances where there are “no

cases of controlling authority” in its own jurisdiction.

Moore v. Hartman, 388 F.3d 871, 885 (D.C. Cir. 2004),

rev’d on other grounds, 547 U.S. 250 (2006).

Meanwhile, the First, Fifth, Seventh, Eighth, and

Ninth Circuits take what appears to be a broader view

of what decisional authority may clearly establish the

law. These courts not only consider their own circuit

authority, but also district court decisions, including in

some cases, unpublished district court opinions. See

Drummond ex rel. Drummond v. City of Anaheim, 343

F.3d 1052, 1060 (9th Cir. 2003) (explaining “‘[i]n the

absence of binding precedent, a court should look to

whatever decisional law is available to ascertain

whether the law is clearly established’ for qualified

immunity purposes, ‘including decisions of state

courts, other circuits, and district courts.’”); Hatch v.

Dep’t for Child., Youth & Their Fams., 274 F.3d 12, 23

(1st Cir. 2001) (providing “[t]o determine the contours

of a particular right at a given point in time, an

inquiring court must look not only to Supreme Court

precedent but to all available case law.”). The Seventh

Circuit also surveys “all relevant case law in order to

determine whether there was such a clear trend in the

caselaw that we can say with fair assurance that the

recognition of the right by a controlling precedent was

merely a question of time.” Denius v. Dunlap, 209

F.3d 944, 951 (7th Cir. 2000) (internal quotations

omitted). The Fifth Circuit has relied on Wilson to

conclude that absent its own direct controlling

authority, a “consensus of cases of persuasive

authority might, under some circumstances, be

sufficient to compel the conclusion that no reasonable

officer could have believed that his or her actions were

lawful.” McClendon v. City of Columbia, 305 F.3d 314,

329 (5th Cir. 2002) (internal quotations omitted). While

these approaches all vary slightly, the upshot is that

government officials in these jurisdictions seem to be

required to read all relevant case law throughout the

country to stay abreast of possible “clear trends” even

from outside their jurisdiction in order to understand

the contours of the law and avoid liability.

The Sixth Circuit takes a slightly narrower

approach, looking only to beyond Supreme Court and

Sixth Circuit precedent in “extraordinary cases.” See

Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th

Cir. 1993), superseded by statute on other grounds as

recognized in Livermore ex rel. Rohm v. Lubelan, 476

F.3d 397, 407 (6th Cir. 2007). The Sixth Circuit

explained

decisions

[from

other

courts] must both point

unmistakably

the

unconstitutionality of the

conduct complained of and

be so clearly foreshadowed

applicable

direct

authority as to leave no

doubt in the mind of a

reasonable officer that his

conduct, if challenged on

constitutional

grounds,

would be found wanting.

Walton, 995 F.2d at 1336, quoting Ohio Civil Serv.

Employees Ass’n v. Seiter, 858 F.2d 1171, 1177 (6th

Cir. 1988).

Local government officials in Ohio,

Tennessee, Michigan, and Kentucky can’t stay abreast

of only Supreme Court and Sixth Circuit case law – as

well as situations where a large number of decisions

from outside the circuit “unmistakably” point to the

unconstitutionality of the conduct.

In sharp contrast, the Second and Eleventh

Circuits will only find the right was clearly established

if a Supreme Court case is directly on point or there

is a decision from the controlling circuit clearly

establishing the right. See Pabon v. Wright, 459 F.3d

241, 255 (2d Cir. 2006) (explaining “[w]hen neither

the Supreme Court nor this court has recognized a

right, the law of our sister circuits and the holdings of

district courts cannot act to render that right clearly

established within the Second Circuit”); Vinyard v.

Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002) (noting

that decisions from other circuits are “immaterial to

whether the law was ‘clearly established’ in this

circuit…”).

Thus, local government officials in

Georgia, Alabama, Florida, Vermont, Connecticut and

New York have perhaps the clearest parameters of

how to understand the contours of the law to avoid

liability.

The Tenth Circuit’s approach is unclear. Recently,

it appeared to side with the Second and Eleventh

Circuits, concluding that only Supreme Court or Tenth

Circuit precedent may provide the necessary authority

to clearly establish a right for purposes of qualified

immunity; however, earlier Tenth Circuit cases

suggest that courts in that circuit may look elsewhere

to persuasive authority. Compare Pauly v. White, 874

F.3d 1197, 1222 (10th Cir. 2017) with Medina v. City &

Cty. of Denver, 960 F.2d 1493, 1498-99 (10th Cir. 1992),

overruled on other grounds as recognized by Morris v.

Noe, 672 F.3d 1185, 1196 n. 5 (10th Cir. 2012). Local

government officials in the Tenth Circuit may

therefore need to err on the side of caution and take a

more expansive approach to reviewing the case law in

order to avoid liability under Section 1983.

This lack of certainty as to whether the law is

clearly established leads to increased litigation and a

lack of predictability. More fundamentally, it erodes

the very purpose of qualified immunity and the

foundational requirement that the law be clearly

established to hold a government official liable for

violating the Constitution or federal law. When

different judges reviewing the same set of facts and

precedents cannot agree that the law is clearly

established, how can a public official be on notice that

the conduct at issue violates the law? What constitutes

clearly established law for the purposes of qualified

immunity is a critical issue that impacts millions of

public servants working for local government. The

answer to that question cannot be a matter of

geography or happenstance. This Court should grant

certiorari to provide needed clarity on the issue, both

for those public servants and for the courts across the

nation.

CONCLUSION

The Court should grant the Petition and reverse the

decision of the Seventh Circuit.

Respectfully submitted,