Opposition Brief — Windle v. City of Marion

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No. 03-21 JUL 3 1 2003

OFFICE OF THE CLERK

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Supreme Court. U.S.

FILED

In The

Supreme Court of the Anited States

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CHAUNCE WINDLE,

Petitioner,

vs.

CITY OF MARION, INDIANA, a municipal

corporation, by and through the City of Marion

and SERGEANT ROBERT RAYMER,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

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RESPONDENTS’ CITY OF MARION, INDIANA

AND SERGEANT ROBERT RAYMER’S

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

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ROBERT T. KEEN, JR./#5475-02

‘DIANA C. BAUER/#11906-64

Counsel of Record

MILLER CARSON BOXBERGER

MurpPuy LLP

1400 One Summit Square

Fort Wayne, IN 46802

Telephone: (260) 423-9411

Attorneys for Respondents, the

City of Marion and Sergeant

Robert Raymer

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

I.

QUESTIONS PRESENTED FOR REVIEW

Respondents, the City of Marion, Indiana, a municipal

corporation, by and through the City of Marion (“the City

of Marion”) and Sergeant Robert Raymer (“Sgt. Raymer”),

disagree with the statement of the questions presented for

review in Chaunce Windle’s (“Windle”) Petition for Writ of

Certiorari. Instead, the questions presented for review are

these:

1. Whether the Seventh Circuit Court of Appeals

correctly affirmed summary judgment in favor of Sgt.

Raymer on Windle’s failure to protect claim by applying

the general rule articulated by this Court in DeShaney v.

Winnebago County Department of Social Services, 489 U.S.

189, 197, 109 S.Ct. 998, 1004, 103 L.Ed.2d 243 (1989), that

a “state’s failure to protect an individual against private

violence simply does not constitute a violation of the Due

Process Clause,” where the evidence is uncontroverted

that Sgt. Ramer took no affirmative action to place Windle

in a position of danger or increase the risk of danger

presented to Windle at the hands of her abuser, Carol

Rigsbee (“Rigsbee”).

2. Whether the Seventh Circuit Court of Appeals

correctly affirmed summary judgment in favor of the City

of Marion on Windle’s municipal liability claims where

there was no underlying constitutional violation by Sgt.

Raymer and the “shocks the conscience” substantive due

process theory from County of Sacramento v. Lewis, 523

U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) is

inapplicable to failure to protect cases.

ii

TABLE OF CONTENTS

Page

I. QUESTIONS PRESENTED FOR REVIEW... i |

II. THE PETITION MISREPRESENTS THE UN-

DIR REOGd FAT Bae cvvinicsnatnidadieaaniaiaianacies 1

III. REASONS FOR DENYING THE WRIT............ 5

A. The Decision Below Is Not In Conflict

With The Decisions Of Other Circuits ........ 5

B. The “Shocks The Conscience” Standard Is

Inapplicable To A Failure To Protect Claim... 16

TV. CONCIUBIUIIG ..sc0nvascaicssnenusnsineieneeeeeasiaeeie 22

TABLE OF AUTHORITIES

Page

CASES

Armijo v. Wagon Mound Public Schools, 159 F.3d

I MII INI sachs co.sc:sssenssansnicsiecnqnensenseinonbhadoeesscoons 13

City of Los Angeles v. Heller, 475 U.S. 796, 106

S.Ct. 1571, 89 L.Ed.2d 806 (1986) .................coccsescessees 17

County of Sacramento v. Lewis, 523 U.S. 833, 118

S.Ct. 1708, 140 L.Ed.2d 1043 (1998) .....17, 18, 20, 21, 22

Currier v. Doran, 242 F.3d 905 (10th Cir. 2001),

cert. denied, 534 U.S. 1019, 122 S.Ct. 543, 151

IE cic daiciispinscinoncethevyanemneheesivemiden 12, 13, 14

DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189, 109 S.Ct. 998, 103

REET RMI vitctsecivnsnaiansoussnencevensinatniesonecctnese passim

Doe v. City of Marion, 196 F.Supp.2d 750 (N.D.Ind.

UNTIL ea tadcn devia vdlsivinsibasienadiestnbeduiiinactdioibesbansinnicn 2, 5, 8, 9

D.R. v. Middle Bucks Area Vocational Technical

School, 972 F.2d 1364 (8rd Cir. 1992), cert. de-

nied, 506 U.S. 1079, 113 S.Ct. 1045, 122 L.Ed.2d

Ath isin aed dec sachubsuiiencdbhonsiniehiamebnvncumeseeiscene 11

Estate of Smith v. Marasco, 318 F.3d 497 (3rd Cir.

aN iia dala Sach bins dicheaissdiabiieetereioansatens 15

Gregory uv. City of Rogers, 974 F.2d 1006 (8th Cir.

1992) (en banc), cert. denied, 507 U.S. 913, 113

S.Ct. 1265, 122 L.Ed.2d 661 (1998) ............cscssscssesseeees 10

Hernandez v. City of Goshen, 324 F.3d 535 (7th Cir.

ADELA Laima nuciathiiieebeissniiibbnieeesesicesecstirvencserensntans 18, 21

iv

TABLE OF AUTHORITIES — Continued

L.W. Grubbs v. Grubbs, 974 F.2d 119 (9th Cir.

1992), cert. denied, 508 U.S. 951, 113 S.Ct. 2442,

BIG Bite ee Ge COTE dcscnscinernsnsicvsssnssnsonenedivenseicicion

McClendon v. City of Columbia, 305 F.3d 314 (5th

Cir. 2002) (en banc), cert. denied, ___ U.S. __,

123 S.Ct. 13855, 155 L.Ed.2d 196 (2003).................

McComb v. Wambaugh, 934 F.2d 474 (3rd Cir. 1991)

Morin v. Moore, 309 F.3d 316 (5th Cir. 2002).............

Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1996),

cert. denied, 516 U.S. 994, 116 S.Ct. 530, 133

Rec Sek EE A RO wicicaniiysennineoniniaiiniasnntaientnnemeninaivien

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

denied, 510 U.S. 947, 114 S.Ct. 389, 126 L.Ed.2d

BE SE eiseeetasersnenenseacdeunidbnininsunttaninisjuiidaieniven

Sargi v. Kent City Board of Education, 70 F.3d 907

SAREE SR BIRD nnscecsnscinineannpsnntesnapsnebemesnininbnnsnanesenivins

Schieber v. City of Philadelphia, 320 F.3d 409 (3rd

RE ID ssesecaslsnSivesinsnliciesanenbiescheoannsdaitebidiniehniasceionnaieetion

Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995), cert.

denied, 516 U.S. 1118, 116 S.Ct. 924, 1383 L.Ed.2d

Be I sihnneessineinsnaniusn nsonnsinsnnnonbnanceneniciiehentipnbaninniens

Windle v. City of Marion, Indiana, 321 F.3d 658

(7th Cir. 2003), reh’g denied..............0cseeeeeeee 4, 5, 8,

Page

16, 19

1

II.

THE PETITION MISREPRESENTS

THE UNDERLYING FACTS

The respondents disagree with the Statement of the

Case presented by Windle as it grossly misrepresents and

distorts the underlying facts in an effort to persuade this

Court to grant certiorari. The most glaring misstatements

woven throughout the Petition are the repeated assertions

that “the defendants” failed to act to protect Windle from

harm and prevented unidentified others from intervening

on her behalf to extricate her from the situation.

Windle ignores, and apparently wants this Court to

ignore, that the only named individual defendant is Sgt.

Raymer. As Sgt. Raymer is the only individual defendant,

this Court’s sole focus should be upon his conduct. Whether

the Seventh Circuit Court of Appeals correctly applied the

general rule of DeShaney v. Winnebego County Department of

Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 243

(1989), that government actors are not liable under 42 U.S.C.

§1983 for simply failing to protect a citizen from private acts

of violence, lives or dies based exclusively upon what Sgt.

Raymer did or did not do. As there are no other individually-

named defendants, anything other officers did or did not do

is irrelevant and cannot be considered in addressing the

merits, or lack thereof, of the Petition for Writ of Certiorari.

The facts of this case, as accurately stated by both the

District Court and the Seventh Circuit Court of Appeals,

plainly demonstrate that Windle failed to point to a single

affirmative act on Sgt. Raymer’s part that created a danger

or enhanced the danger Windle was already admittedly in.

Second, Windle misrepresents the underlying facts by

repeatedly asserting that Sgt. Raymer and other officers,

who are not named defendants in this case, engaged in

affirmative conduct or misconduct, choosing to not charac-

terize the conduct as failure to act or inaction, for which

there is clearly no constitutional claim. This semantic

trickery is unavailing.

Neither the District Court nor the Seventh Circuit fell

into the trap Windle attempted to set. The District Court

made the following observations in rejecting Windle’s efforts:

Doe appears to agree with the general principal

that substantive due process requires some af-

firmative act by a state actor. In fact, she at-

tempts to frame her response by using this

terminology. For instance, she repeatedly states

that the “affirmative act” in this case is the fail-

ure of Raymer and others to act ... Whether the

failure of the Defendants to act as alleged by Doe i

can be classified as an “affirmative act” by the

state is an interesting question. Yet, the real

question posed by the parties’ arguments is

whether Raymer or the City used their authority

to create a danger or render the plaintiff more

vulnerable to a danger than she otherwise would

have been.

* * *

Here, there is nothing in the record which sug-

gests that the Defendants created the situation be-

tween Rigsbee and the plaintiff. Indeed, by

plaintiff's own admission the relationship between

herself and Rigsbee was abusive well before police

heard the suspicious cellular telephone conversa- |

tions between the two. Thus, Raymer’s acts or

omissions did not increase the risk of injury be-

yond what it would have been had Raymer not in-

tervened at all. Doe v. City of Marion, 196

a

3

F.Supp.2d 750, 756-758 (N.D.Ind. 2002) (Empha-

sis added).

The Seventh Circuit Court of Appeals also soundly

rejected Windle’s efforts to articulate an affirmative

“failure to act” claim.

... Appellant attempts to show that Raymer

took an affirmative action, even though he

plainly did not. She characterizes Raymer’s inac-

tion as an affirmative choice, using phrases like

“affirmatively choosing to stand idle” and “af-

firmatively chose not to take action” throughout

her brief. We find this line of argument lacking

and not in accord with our understanding of “tak-

ing an action affirmatively.”

Even if one were to construe the conduct of the of-

ficers as some sort of affirmative action, we must

then ask what new danger would have otherwise

befallen the victim. If Raymer, under Appellant’s

theory, had not taken the so-called affirmative

action of doing nothing and had done something,

we have no way of knowing what would have oc-

curred. Indeed, the police might have failed at

protecting Chaunce. We therefore have no assur-

ance that the danger would not have existed in

the absence of the so-called affirmative action of

doing nothing.

In focusing exclusively on whether the police

acted affirmatively, Appellant fails to grasp that

she has to establish that the police failed to pro-

tect her from a danger they created or made

worse. She confuses the inert failure to protect

with the proactive creation or exacerbation of

danger. In this case the police did nothing to cre-

ate a danger, nor did they do anything to make

worse any danger Chaunce already faced ....

4

Windle v. City of Marion, 321 F.3d 658, 661-662

(7th Cir. 2003) (Emphasis added).

To further skew the facts, Windle argues on several

occasions that Sgt. Raymer informed his superior officer,

Lieutenant Alter-Dunn (“Lt. Dunn”), that he reported the

abuse to the local prosecutor when he had in fact not yet

done so. This is a red herring for several reasons. First,

Sgt. Raymer’s incident report is dated December 2, 1997,

written approximately one week after Rigsbee admitted

her molestation of Windle on November 25, 1997. As Sgt.

Raymer’s report was written after the alleged abuse

ceased, it cannot be utilized by Windle to support her

affirmative conduct claim. Moreover, Windle fails to

explain how not reporting the alleged abuse to the prose-

cutor, if this is in fact what Sgt. Raymer did, amounts to

affirmative conduct which placed Windle at an increased

risk of harm, or amounts to conduct which prevented other

officers from intervening on Windle’s behalf. Again, the

timing of the incident report is after the abuse ceased.

Windle also states that Lt. Dunn allegedly dissuaded

other officers from intervening by telling a subordinate

officer “there was nothing they could do because they had

ebtained the information by illegal intercept. Her words

were viewed as a directive not to intervene.” (Petition for

Writ of Certiorari at p. 3). Officer Gary Henderson, who is

not a party to this lawsuit, testified in his deposition that

he was concerned about the conversations he overheard

between Windle and Rigsbee and was upset when told that

there was nothing that could be done about the situation.

No matter how Windle attempts to twist the underlying

facts, this testimony does not demonstrate affirmative

conduct on the part of Sgt. Raymer which enhanced the

danger to Windle. Moreover, the Seventh Circuit Court of

a |

5

Appeals properly rejected Windle’s argument that officers

were dissuaded from protecting her, noting that this

argument was mentioned only in passing in Windle’s

Reply Brief and was not pursued by her in the Court

below. Windle, 321 F.3d at 662, n.3.

In addition, Windle ignores the fact that even if Lt.

Dunn made comments to a subordinate about not doing

anything to address the situation, she is not a named

defendant in this case and was not a final policymaker for

the City of Marion. Indeed, the District Court held that

Windle failed to present any evidence that Lt. Dunn was

“a policymaker as opposed to an individual who enforces

City policy made by others,” and therefore Windle failed to

raise any genuine issue of material fact as to Lt. Dunn’s

status for purposes of municipal liability. 196 F.Supp.2d at

760.

ITI.

REASONS FOR DENYING THE WRIT

A. The Decision Below Is Not In Conflict With The

Decisions Of Other Circuits

In DeShaney, supra, the Supreme Court held that the

State has no constitutional duty to protect a child against

abuse. 489 U.S. at 202, 109 S.Ct. at 1007. “[NJothing in the

language of the Due Process Clause itself requires the

State to protect the life, liberty, and property of its citizens

against invasion by private actors.” Jd. at 195, 109 S.Ct. at

1003. Rather, the purpose of the Due Process Clause is to

protect people from the State, not to require the State to

protect individuals from each other. Jd. at 196, 109 S.Ct. at

1003. The Supreme Court emphasized that the Due

Process Clause is “phrased as a limitation on the State’s

6

power to act, not as a guarantee of certain minimal levels

of safety and security.” 489 U.S. at 195, 109 S.Ct. at 1003.

The DeShaney Court explained the facts of the case as

“undeniably tragic.” Id. at 191, 109 S.Ct. at 1001. The

Winnebago County Department of Social Services received

numerous reports that a four-year-old child, Joshua

DeShaney, was being abused by his father. The abuse

continued and local officials even personally observed the

injuries inflicted upon Joshua by the father. They knew

firsthand of the threat to the child’s safety, yet failed to

remove him from the father’s custody or take other meas-

ures to protect him from abuse. The father beat Joshua so

severely that he was left profoundly retarded for life.

Joshua and his mother sued state and local officials,

alleging a deprivation of the child’s liberty without sub-

stantive due process by failing to intervene to protect the

child from the father’s violence and abuse.

While expressing its natural sympathy for Joshua’s

plight, the Supreme Court held that there was no §1983

liability under the circumstances. The Court wrote that a

“State’s failure to protect an individual against private

violence simply does not constitute a violation of the Due

Process Clause.” Id. at 197, 109 S.Ct. at 1004. Simply

knowing about a person’s precarious situation vis-a-vis

another private party does not invoke any obligation on

the part of the state actor to come to the person’s aid.

In dicta, the DeShaney Court suggested a conceivable

exception to the general rule of non-liability if the State

actor plays a role in creation of the danger. In a single

sentence, which is nothing more than a passing reference,

the Court wrote: “While the State may have been aware of

the dangers that Joshua faced in the free world, it played

EE —_—_ aaa — : ee

7

no part in their creation, nor did it do anything to render

him any more vulnerable to them.” Jd. at 201, 109 S.Ct. at

1006.

Although state and local officials were well aware of

the abuse that Joshua was suffering at the hands of his

father, any creation of danger exception afforded no relief

as the DeShaney Court held that the officials’ conduct in

standing by and doing nothing did not affirmatively create

a danger or render Joshua more vulnerable:

Judges and lawyers, like other humans, are

moved by natural sympathy in a case like this to

find a way for Joshua and his mother to receive

compensation for the grievous harm inflicted

upon them. But before yielding to that impulse, it

is well to remember once again that the harm was

inflicted not by the State of Wisconsin, but by

Joshua’s father. The most that can be said of the

state functionaries in this case is that they stood

by and did nothing when suspicious circum-

stances dictated a more active role for them. Id. at

202-03, 109 S.Ct. at 1007. (Emphasis added).

Relying upon the vague “creation of danger” dicta in

DeShaney, Circuit Courts have created a narrow limited

exception to the general rule of non-liability for failure to

act articulated in DeShaney. This narrow exception,

referred to as the “state-created danger exception,” pro-

vides that the state may be liable for failing to protect a

person from harm by a private individual if the State itself

affirmatively creates or enhances the risk of harm.

After rejecting Windle’s efforts to construe the record as

showing affirmative conduct on Sgt. Raymer’s part, rather

than mere inaction, the Seventh Circuit Court of Appeals

held that the facts of the case were “indistinguishable” from

8

DeShaney and therefore applied DeShaney’s guiding

principle of no constitutional liability for failure to protect

Windle from molestation by Rigsbee. 321 F.3d at 662. The

Court concluded that there was no evidence that Sgt.

Raymer’s failure to intervene earlier proactively created or

exacerbated Windle’s danger at the hands of her abuser.

Id. The Court wrote as follows: |

This case is indistinguishable from DeShaney

where the Supreme Court concluded that no con-

stitutional violation had occurred when State ac-

tors who may have been aware that a child was

being abused by his father did nothing to protect

the child. 321 F.3d at 662.

The Seventh Circuit Court of Appeals’ conclusion

echoes the sentiments of the District Court that “there is

nothing in the record which suggests that the Defendants

created a situation between Rigsbee and the plaintiff.” 196

F.Supp.2d at 758. As the relationship between Windle and

Rigsbee was abusive long before any officer overheard a

single telephone conversation, the District Court con-

cluded that “Raymer’s acts or omissions did not increase

the risk of injury beyond what it would have been had

Raymer not intervened at all.” Id. The District Court’s

conclusion is fully supported by the evidence:

Here, the Defendants, and specifically Raymer,

made no false promise of protection to Doe (and

she never requested protection from the police), nor

did the Defendants or Raymer do anything to cre-

ate or exacerbate the situation between Rigsbee

and Doe. Raymer simply stood by and permitted

the status quo to continue until he had informa-

tion from which he could identify Jane Doe. In

the course of his investigation, Raymer did not,

for instance, knowingly place Doe in a position |

———

9

where Rigsbee would have additional access or

opportunity to continue the molestation. In fact,

the police had no contact whatsoever with Doe or

Rigsbee until November 25. Any access Rigsbee

had to Doe prior to the time occurred without

any police intervention or aid. Accordingly, the

court cannot conclude that Raymer imperiled

Doe by failing to intervene sooner. 196 F.Supp. at

758-59.

Despite an absolutely correct application of DeShaney

by both the Seventh Circuit Court of Appeals and the

District Court, Windle attempts to entice this Court to

accept her case by arguing that the Seventh Circuit’s

formulation of the state-created danger exception is in

conflict with the decisions of other Circuits, namely, the

Third, Fifth, Sixth and Tenth Circuits. To be blunt, this is

a false proposition. While various Circuits articulate

slightly different tests to determine whether the state

created a danger for which it may be liable under 42

U.S.C. §1983, common threads run through each test. The

Circuits uniformly agree that DeShaney clearly estab-

lishes that the failure of a state to protect citizens from

private violence does not give rise to a due process claim.

However, most Circuits which have addressed the issue

also recognize a very limited exception to this general rule

exists where the state affirmatively places an individual in

a position of danger, makes the individual more vulnerable

at the hands of the third party, or increases the risk that

the individual might be exposed to private acts of violence.

Those Courts acknowledging this narrow exception require

that the official act affirmatively as opposed to inaction or

refusing to act. This stringent requirement arises from

DeShaney’s admonition that the Due Process Clause does

not require the government to protect citizens from other

10

citizens and therefore the government cannot be held

liable for failing to protect an individual from private

violence.

Windle conveniently ignores that all Circuits agree

that the state-created danger exception requires affirma-

tive conduct on the part of government actors. See e.g.,

Sargi v. Kent City Board of Education, 70 F.3d 907, 913

(6th Cir. 1995) (liability under the state-created danger

theory must be predicated on the state’s affirmative acts

which work to plaintiff’s detriment in terms of exposure

to danger to which plaintiff was not already exposed);

Pinder v. Johnson, 54 F.3d 1169, 1176 (4th Cir. 1995), cert.

denied, 516 U.S. 994, 116 S.Ct. 530, 133 L.Ed.2d 436

(1995) (cases which recognize liability “involved some

circumstance wherein the state took a much larger and

more direct role in ‘creating’ the danger itself... . In such

instances, the state is not merely accused of a failure to

act; it becomes much more akin to an actor itself directly

causing harm to the injured party.”); Reed v. Gardner, 986

F.2d 1122, 1126 (7th Cir. 1993), cert. denied, 510 U.S. 947,

114 S.Ct. 389, 126 L.Ed.2d 337 (1993) (explaining that a

plaintiff “may state claims for civil rights violations if they

allege state action that creates, or substantially contrib-

utes to the creation of, a danger or renders citizens more

vulnerable to a danger tha[n] they otherwise would have

been”); Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th

Cir. 1992) (en banc), cert. denied, 507 U.S. 913, 113 S.Ct.

1265, 122 L.Ed.2d 661 (1993) (“the Due Process Clause

imposes a duty on state actors to protect or care for citizens

... when the state affirmatively places a particular indi-

vidual in a position of danger the individual would not

otherwise have faced.”); L.W. Grubbs v. Grubbs, 974 F.2d

119, 121 (9th Cir. 1992), cert. denied, 508 U.S. 951, 113

: oe

S.Ct. 2442, 124 L.Ed.2d 660 (1993) (“the ‘danger creation’

basis for a claim ... involves affirmative conduct on the

part of the state in placing the plaintiff in danger.”); D.R.

v. Middle Bucks Area of Vocational Technical School, 972

F.2d 1364, 1374-75 (8rd Cir. 1992), cert. denied, 506 U.S.

1079, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993) (“liability

under the state-created danger theory is predicated upon

the states’ affirmative acts” and cases applying the theory

find that the state “affirmatively acted to create the

danger to the victims”); McComb v. Wambaugh, 934 F.2d

474, 483 (3rd Cir. 1991) (holding that DeShaney prevented

recovery because local social workers had not created the

danger of private abuse).

Windle relies upon Jones v. Union County, 296 F.3d

417 (6th Cir. 2002) which involved the question of whether

an officer’s failure to serve an ex parte order of protection

upon an ex-husband created or increased the danger posed

to the plaintiff by her ex-husband. There was evidence

that the Sheriff’s Department had actual knowledge of

domestic problems and violence between the individuals.

Despite this knowledge, the Court found DeShaney con-

trolling and held that as there was no factual support for

the claim that the officers created or enhanced a danger to

the ex-wife by failing to serve the order in a timely man-

ner, she could not recover under the state-created danger

exception.

Part of the Sixth Circuit’s test includes demonstration

by the plaintiff that he or she faced a “special danger” by

virtue of the state’s conduct, rather than a risk or danger

to which the public at large is exposed. 296 F.3d at 430.

Windle argues that had the Seventh Circuit considered

this particular element, the record supports the conclusion

that she was placed at a specific risk, rather than a risk to

12

the public at large. However, the record does not support

this argument. While children are unfortunately at risk of

being abused by third parties, there was no affirmative

conduct on the part of Sgt. Raymer which created a par-

ticular danger to Windle not shared by the juvenile public

at large. Windle’s result would not be different under the

Sixth Circuit test.

Windle also cites Currier v. Doran, 242 F.3d 905, 918

(10th Cir. 2001), cert. denied, 534 U.S. 1019, 122 S.Ct. 543,

151 L.Ed.2d 421 (2001), wherein the Court articulated a

six-part test to determine if a defendant created a special

danger to support liability under the state-created danger

exception. The Tenth Circuit test is also of no benefit to

Windle as she once again cannot satisfy the crucial ele-

ment: that Sgt. Raymer either created the danger or

increased the danger in some way. Despite her attempts to

construe the record to the contrary, there simply is no

evidence that Sgt. Raymer took any affirmative action

which placed Windle in harm’s way at the hands of her

abuser, Rigsbee.

The Tenth Circuit’s formulation also requires Windle

to demonstrate a degree of outrageousness and a magni-

tude of potential harm that is truly conscience shocking,

which requires, at the very least, a high level of outra-

geousness. Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir.

1995), cert. denied, 516 U.S. 1118, 116 S.Ct. 924, 133

L.Ed.2d 853 (1996). The facts of this case fall far short of

satisfying this stringent standard.

Windle also ignores the Tenth Circuit’s admonition

that “if the danger to the plaintiff existed prior to the

State’s intervention [or lack thereof], then even if the State

LL —~™

13

put the plaintiff back in that same danger, the State would

not be liable because it could not have created a danger

that already existed.” Armijo v. Wagon Mound Public

Schools, 159 F.3d 1253, 1263 (10th Cir. 1998). Sgt. Raymer

did not create or exacerbate any danger to Windle because

she was in “no worse position than [she] would have been

had [defendants] not acted at all.” DeShaney, 489 U.S. at

201, 109 S.Ct. at 1006.

Moreover, the conduct at issue in Currier demon-

strates the distinction between the present case, which

involves a failure to protect, from the facts of Currier,

where there was affirmative conduct undertaken which

specifically placed a child at risk of harm. Anthony Juarez

was scalded to death with boiling water by his father.

Christopher Vargas, the child’s father, had custody of his

son. Tom Doran, a social worker, was responsible for

removing the child from his mother’s custody and placing

him in his father’s custody. Once the child was in Vargas’

custody, Doran made visits to the home and noticed

bruises on the child and was also informed by the child’s

guardian that Vargas and his fiancée were physically

abusing the child. Doran did not investigate the bruises or

the information about physical abuse. On three occasions

during the late summer of 1993, the child’s mother made

allegations that the father and his girlfriend were abusing

Anthony which included a specific accusation that the

child was dunked in a bathtub full of water as punish-

ment. Doran did not investigate the allegations. On

October 19, 1993, Doran was responsible for the Children’s

Court’s decision to grant Vargas legal custody, thereby

placing the child in Vargas’ home and removing him from

his mother’s home. Several months later, Vargas poured

boiling water on his son, which ultimately led to his death.

14

The Court concluded that the plaintiffs alleged sufficient

facts to support a claim under the state-created danger

exception, relying heavily upon Doran’s affirmative con-

duct in recommending that Vargas be given legal custody

of the child, which conduct thereby placed the child at an

obvious risk of harm at the hands of his father. 242 F.3d at

920.

Here, there is no such similar affirmative conduct by

Sgt. Raymer that placed Windle at an obvious risk of

serious and immediate harm at the hand of her abuser. In

fact, Sgt. Raymer never had any direct contact with

Windle or her abuser at any time until he confronted both ©

and ended the abuse. Thus, the Tenth Circuit’s articula-

tion of the state-created danger test does not assist Win-

dle. The result remains the same.

Windle also cites Morin v. Moore, 309 F.3d 316 (5th

Cir. 2002), wherein the Court applied a two-prong test to

determine whether a plaintiff falls within the narrow

state-created danger exception: “(1) the state actors

created or increased the danger to the plaintiff and (2) the

state actors acted with deliberate indifference.” 309 F.3d at

322. However, Windle ignores the significant hurdles to

establish deliberate indifference under this standard. In

McClendon v. City of Columbia, 305 F.3d 314 (5th Cir.

2002) (en banc), cert. denied, ___ * U.S. __, 123 S.Ct. 1355,

155 L.Ed.2d 196 (2003), the Court held that to establish

deliberate indifference the state actor must have knowl-

edge of a risk to the victim’s health and safety and disre-

gard that risk for his conduct to rise to the level of

deliberate indifference:

To establish deliberate indifference, a state actor

must know of and disregard an excessive risk to

the [victim’s] health and safety. The state actor’s

15

actual knowledge is critical to the inquiry. A state

actor’s failure to alleviate a significant risk that

he should have perceived but did not, while no

cause for commendation, does not rise to the

level of deliberate indifference. 305 £.3d at 326.

Windle argues that the Fifth Circuit’s test differs from

that of the Seventh Circuit in that the Seventh Circuit

does not consider whether the state employee acted with

deliberate indifference. However, under the deliberate

indifference test articulated by the Fifth Circuit, Windle’s

claim fairs no better. The most that can be said is that Sgt.

Raymer may not have perceived the actual risk to Windle.

However, as the McClendon decision makes clear, this does

not rise to the level of deliberate indifference.

Windle also cites Schieber v. City of Philadelphia, 320

F.3d 409 (3rd Cir. 2003) and Estate Smith v. Marasco, 318

F.3d 497 (3rd Cir. 2003) wherein the Third Circuit Court of

Appeals adopted a four-part test for a state-created danger

claim:

(1) the harm ultimately caused was foreseeable

and fairly direct; (2) the state actor acted in will-

ful disregard for the safety of the plaintiff: (3)

there existed some relationship between the

state and the plaintiff; [and] (4) the state actors

used their authority to create an opportunity

that otherwise would not have existed for the

third party’s crime to occur.

Windle latches on to the foreseeability element,

arguing that had the Seventh Circuit considered this

prong, she would have prevailed. Not so. Even if the harm

to Windle was foreseeable, Sgt. Raymer had no relation-

ship to her and nothing he did created or enhanced the

16

danger to Windle. Thus, the result would be the same in

the Third Circuit as well

Although the Circuit Courts of Appeal do not employ

identical standards for determining when the state-

created danger exception applies, any minor distinctions

do not warrant a grant of certiorari in this case. De-

Shaney’s general rule applies with full force to the facts of

this case, facts which plainly demonstrate nothing more

than inaction by Sgt. Raymer. Regardless of which test or

factors are considered, the result in this case is the same.

Liability under the state-created danger theory is predi-

cated upon affirmative acts by the state which either

create a danger or increase the risk of exposure to danger.

There is no affirmative conduct on the part of Sgt. Raymer

which either placed Windle in a position of danger or

exacerbated the situation, as correctly found by the Sev-

enth Circuit Court of Appeals and the District Court. Mere

inaction or failure to protect an individual from private

acts of violence does not create liability under the Four-

teenth Amendment. The factual scenario presented by this

case simply does not rise to the level of that rare and

exceptional circumstance where the narrow state-created

danger exception applies.

B. The “Shocks The Conscience” Standard Is

Inapplicable To A Failure To Protect Claim

Having determined that Windle “did not suffer a

constitutional violation from the inaction of Raymer or any

other police officer in Marion,” the Seventh Circuit af-

firmed summary judgment on the failure to train claim

asserted against the City of Marion as there was no

underlying constitutional violation by Sgt. Raymer. 321

17

F.3d at 663. This was a correct result. In City of Los

Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 1573,

89 L.Ed.2d 806 (1986), this Court held that a municipality

cannot be held liable for an official policy or custom if it

has been determined that the individual defendant did not

violate the plaintiff’s constitutional rights.

Although the facts of this case fall squarely within the

parameters of DeShaney’s rule that inaction by failing to

protect a person from private harm does not give rise to a

constitutional claim, Windle argues that the Seventh

Circuit Court of Appeals erred in failing to consider

whether she could premise a substantive due process

claim against the City of Marion based upon the City’s

deliberate indifference to her situation which, in Windle’s

view, rises to a conscience-shocking level. Windle relies

upon this Court’s decision in County of Sacramento v.

Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043

(1998). In particular, Windle seizes upon the following

language in Lewis to support her argument:

“When such extended opportunities to do better

are teamed with protracted failure even to care,

indifference is truly shocking.” Lewis, 523 U.S. at

853, 118 S.Ct. at 1720.

Lewis is inapplicable here as it applies only where

government officials are under a recognized duty to act on

behalf of the injured plaintiff. Lewis is not an alternative

theory of liability where a plaintiff cannot demonstrate

affirmative conduct by the government so as to fall within

the narrow state-created danger exception.

Lewis comes into play only after the plaintiff demon-

strates both a duty to act and affirmative conduct on the part

of government actors. Only after a duty and affirmative

18

conduct is articulated by the plaintiff does any question

arise as te whether that affirmative conduct taken is so

egregious or outrageous as to shock the conscience. Sgt.

Raymer and the City of Marion submit that Lewis has no

application to failure to protect cases and cannot be

utilized to make an end-run around DeShaney.

Indeed, in Hernandez v. City of Goshen, 324 F.3d 535

(7th Cir. 2003), the Seventh Circuit Court of Appeals

recently decided that the Lewis “shocks the conscience”

standard is inapplicable to a failure to act case. Jesus

Hernandez and Ismael Garza were injured during a

shooting spree in the workplace by a co-worker. The co-

worker, Robert Wissman, got into a fight with another

employee and threatened him with bodily harm. After

Wissman left the plant, the supervisor called the local

police department and spoke to an unidentified individual

about the situation, indicating he feared for the safety of

his employees. The supervisor v as advised that the police

department would not resp-ad or get involved unless

Wissman actually harmed someone. Wissman returned to

the plant, shot and killed one employee, and injured

Hernandez and Garza. They filed suit under 1983 alleging

that the police department’s conduct in not responding to

the telephone call violated their substantive due process

rights. The District Court dismissed the constitutional

claims in reliance upon DeShaney’s rule that a failure to

protect an individual from private acts of violence does not

rise to the level of a substantive due process violation.

On appeal, Hernandez and Garza argued that they were

asserting a deliberate indifference, shocks the conscience

substantive due process claim rather than a failure to protect

claim. Rejecting their semantic gymnastics, the Seventh

Circuit held that regardless of the words Hernandez and

19

Garza used to describe the City’s conduct, the Complaint

alleged liability under §1983 because the police depart-

ment had a policy of not coming to the aid of persons who

were at a foreseeable risk of harm and because its inade-

quate training of employees amounted to deliberate

indifference. The Court held that the facts as pled did not

establish a constitutional violation. In so doing, the Court

rejected any application of the deliberate indifference

standard or a shocks the conscience standard to a failure

to protect claim:

First, neither Rochin nor Estelle nor Lewis is ap-

plicable here; in all of those cases and their prog-

eny, $1983 liability arises from state action or

inaction based on a recognized duty or affirma-

tive course of conduct between the defendant state

actor and the injured plaintiff. The critical differ-

ence in this case is that the City had no duty to

the residents of Goshen to provide a police de-

partment whose policy is to investigate threats of

violence, even credible ones, made by private per-

sons and reported by private persons. As the Su- =

preme Court held in DeShaney and we recently

reiterated in Windle v. City of Marion, Indiana,

321 F.3d at 660-61 (7th Cir. 2003), police depart-

ments have no constitutional duty to protect pri-

vate persons from injuring each other, at least

where the police department has not itself cre-

ated the danger. Thus, no matter how egregious

Hernandez and Garza might find the City’s fail-

ure to investigate credible threats of private vio-

lence such as the one posed by Wissman, the

City’s conduct was not unconstitutional.

Second, Hernandez and Garza had not presented

any facts which would lead us to conclude that

this case falls within the narrow “State-created

Pe ee ee

20

danger” exception to DeShaney. We have recog-

nized the possibility that a state actor might in-

cur liability under §1983 if his or her conduct

created or exacerbated the danger faced by the

victim ....

In this case, the pleadings allege that the Goshen

Police Department learned from Nu-Wood plant

manager Greg Oswald’s phone call that eraployee

‘Robert Wissman threatened to do bodily harm to

Nu-Wood employees, and that Oswald knew

Wissman had access to guns. No other evidence

of the City’s knowledge or involvement with the

situation that Nu-Wood appears on the face of

the complaint. This is even less information

about the specific danger facing Hernandez and

Garza than the police had in Windle, or the social

workers had in DeShaney, and we therefore do

not find that the City, through its police depart-

ment’s decision not to investigate the phoned-in

threat, created or increased the danger faced by

the Plaintiffs and their fellow Nu-Wood employ-

ees that day. 324 F.3d at 538-39 (Emphasis

added) (Citations omitted).

The factual scenario in Lewis and its distinction from

the facts here, demonstrates why a “shocks the conscience”

test never applies in a failure to act situation. This Court

granted certiorari in Lewis “to resolve a conflict among the

Circuits over the standard of culpability on the part of a

law enforcement officer for violating substantive due

process in a pursuit case.” 523 U.S. at 839, 118 S.Ct. at

1713. An innocent bystander died when a police patrol car

skidded out of control dvring a high speed pursuit, striking a

motorcycle and killing the passenger. In evaluating the

proper substantive due process standard, the Court empha-

sized that “the touchstone of due process is protection of

21

the individual against arbitrary action of the government.”

Id. at 845, 118 S.Ct. at 1716. The Court warned that

proving a substantive due process violation in a case

involving government action is extremely unlikely as

“cases dealing with abusive executive action have repeat-

edly emphasized that only the most egregious official

conduct can be said to be ‘arbitrary in a constitutional

sense.’” Id. at 846, 118 S.Ct. at 1716.

This Court made clear that “the due process guaran-

tee does not entail a body of constitutional law imposing

liability whenever someone cloaked with state authority

causes harm.” Jd. at 848, 118 S.Ct. at 1717. Rather, “con-

duct intended to injure in some way unjustifiable by any

government interest. is the sort of official action most

likely to arise to the conscience-shocking level.” Id. at 849,

118 S.Ct. at 1718. (Emphasis added). The Court also held

that negligence is not enough to shock the conscience

under any circumstance. Jd. at 849, 118 S.Ct. at 1718.

Windle fails to point to any evidence in the record which

would even begin to suggest a deliberate intent to injure.

The key to Lewis is a duty to act coupled with deliber-

ate and intentional action by the government. It is clear

that Sgt. Raymer had no duty to act. Like the defendants

in Hernandez, Sgt. Raymer was under no legal obligation

to investigate the abuse by Rigsbee. The “shocks the

conscience” standard should not be applied in this case

merely because Sgt. Raymer had an opportunity to inter-

vene sooner to stop the abuse. While it is disturbing that

Rigsbee abused Windle, inaction by Sgt. Raymer neither

created nor increased the danger to which Windle was

already exposed. If Sgt. Raymer had never known of the

abuse, the harm to Windle would have been the same or

even greater. The fact that he learned of the abuse and

22

arguably did not intervene as soon as he might have

creates no constitutional violation. As this case does not

fall within the narrow confines of Lewis, there is no need

for this Court to grant certiorari. The “shocks the con-

science” standard applies only to the most egregious acts

of intentional conduct in a situation where the government

has a duty to act. As this is a failure to act case, Lewis has

no application and Windle’s misguided reliance upon Lewis

does not provide an alternative basis for granting certio-

rari.

IV.

CONCLUSION

For all of the foregoing reasons, respondents respect-

fully request that this Honorable Court deny the Petition

for Certiorari.

Respectfully submitted,

ROBERT T. KEEN, JR.

DIANA C. BAUER

Counsel of Record

MILLER CARSON BOXBERGER

MurpHy LLP

1400 One Summit Square

Fort Wayne, IN 46802

Telephone: (260) 423-9411

Counsel for Respondents