Opposition Brief — Hale v. Bexar County (No. 09-577)

No. 09-577 |

Sn The

Supreme Court of the United States

S

MARY HALE, ET AL.,

Petitioners,

V.

BEXAR COUNTY, TEXAS,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

+

RESPONDENT?’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

*

CHARLES S. FRIGERIO* CLARKSON IF. BROWN

HECTOR X. SAENZ BEXAR COUNTY ASSISTANT

LAW OFFICES OF CRIMINAL DISTRICT

CHARLES S. FRIGERIO ATTORNEY — CIVIL DIVISION

A PROFESSIONAL CORPORATION 300 Dolorosa, Suite 4049

Riverview Towers San Antonio, Texas 78205

111 Soledad Street, Suite 840 (210) 335-2139

San Antonio, Texas 78205

(210) 271-7877

Attorneys for Respondents

"Counsel of Record

December 14, 2009

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2851

Sup.cnz Dak. NP Tae

FILED

QUESTIONS PRESENTED

Whether Petitioners’ claim for a more expeditious

rescue states a cause of action under the theory of the

“state-created danger” exception of the Due Process

Clause as guaranteed by the Fourteenth Amend-

ment?

Whether Petitioners Jennifer and Harold Harris

and Darrell Scraper, as volunteer firemen, possess

a Constitutional right under the Fourteenth Amend-

ment to by-pass Command Control and attempt a

rogue rescue.

il

PARTIES TO THE PROCEEDING

Respondents:

Bexar County, Texas, by and through their attorneys

of Record, Charles S. Frigerio and Hector X. Saenz,

Law Offices of Charles S. Frigerio, A Professional

Corporation, Riverview Towers, 111 Soledad Street,

Suite 840, San Antonio, Texas 78205 and Clarkson F.

Brown, Bexar County Assistant Criminal District

Attorney — Civil Division, 300 Dolorosa, Suite 4049,

San Antonio, Texas 78205.

Petitioners:

Mary Hale, Wayne Hale, Jennifer Harris, Harold

Harris and Darrell Scraper, by and through their

attorney of record, Philip M. Ross, Attorney at Law,

1006 Holbrook Road, San Antonio, Texas 78218.

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........0.0:0secccccccccsvcesses

PARTIES TO THE PROCEEDING ...................... il

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CONSTITUTIONAL AND STATUTORY PRO-

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OF BFA. Be eibrh cn eden ened cli emaannen 2

SLATEAMEIN £ OF THE CARE icc ccccccscscsccsovcessecces: 3

I. Petitioners Rescued...................... Ee havens 4

Il. Nascent Volunteers Go Rogue................... 5

Ili. Sergeant Coleman’s Qualified Immunity.... 5

AV, URROEY PUGBUIOIE ov sisecssccscssicvsscnovccssncene 6

Vi. FREER Sa Pa ooo one vec cn cepscvinsccsescsness 6

REASONS FOR DENYING WRIT OF CERTIO-

7.1 ee Saute Ta eakciwsateseecensdc aueeienrier ie ae tae: 7

I. No Constitutional Deprivation.................. 7

A, BRR ir ocx cechecenevccevesesavecacevedeee ee 8

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Ai. Ta Gis cise iss es eet 10

B. Eleventh Circuit............ Pee Ket ar ll

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TABLE OF CONTENTS - Continued

Page

D. Sixth Circuit..... EE ROSE RPO DPR 13

ke || te SME Sais tanrpecrad.dny save cvaunanvnsecnnes 14

IV. No State-Created Danger.......................... 15

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APPENDIX:

1. Order Granting Summary Judgment by

U.S. District Judge Royal Furgeson on

NE I ME ssnscapecsannceeauccssueavousuntetedaees App. 1

2. Opinion of the United States Court of

Appeals for the Fifth Circuit filed July

27, 2009, Hale et al v. Bexar County, No.

INET cs son dacs uskaivreunavineasersrsuececpuiaeees: App. 22

3. Order of the United States Court of

Appeals for the Fifth Circuit filed August

24, 2009, Hale et al v. Bexar County,

Denying Motion for Rehearing En Banc

SoG oicveses unc ccuseseacieetvasecusucp ieee App. 38

TABLE OF AUTHORITIES

Page

CASES:

Avalos v. City of Glenwood, 382 F.3d 792 (8th

SN IES iid dcnlAgeie on kasicnevascatunsecksh guia sienmayne etiecaeakaeel 10

Board of County Commissioners of Bryan

County, Oklahoma v. Brown, 520 U.S. 397

UNITE Gi ruds Siseti ch chuc cduascacanassiuedn wes eakennaaeerecimiaaureanh 17

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

REY SAMO MEP INE Fy sccesacsacsnsinciesensincentnanecteuannents 6, 17

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

SNPS cas rdcusu pate inaicausmias uae vencuasuaneesnsestiaeneeskastniuedeam 11

Cornelius v. Town of Highland Lake, Al., 880

Fe CE Geth B I Rave saneccsscnccsccnosinevensaneserecienes 11

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

CE ponnceashcsixeceninanimaraent tones isacnsncessareleaceaseieavanl passim

Daniels v. Williams, 474 U.S. 327 (1986)................ LeoeeD

DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189 (1989)............ccccccccccsesees ee

Harris v. McRae, 448 U.S. 297 (1980)..................cccccee. 7

Kallstrom v. City of Columbus, 136 F.3d 1055

A UIE ccs caavscjnaccnudecakscuanancies Se LENT cet CAPS 8

Kneipp v. Tedder, 95 F.3d 1199 (3rd Cir. 1996).......... 13

Jackson v. Schultz, 429 F.3d 586 (6th Cir. 2005)......... x

Monell v. New York City Dept. of Social

Services, 436 U.S. GOS (ISIS)... 6.ccccecccccccsssnscccecesenes 6

Rivera v. State of Rhode Island, 402 F.3d 27

CR a SEIN Y ciczsssc0s nescvnesdeussepdssnvaesonctandensie eee 14

Vi

TABLE OF AUTHORITIES — Continued

Page

Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992)......... 8

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

I «ohio ss sued deensgyapivecdenboodasvessbussisboanedes 12

Tanner v. County of Lenawee, 452 F.3d 472 (6th

ISL Dh.) 5 hc sda gua mllnpsueopardidesenisianisaracvenedas 13, 14

Waddell v. Henry County Sheriff’s Office, 329

Se NE EEEE GAN, DO Pocsisccesveccnsevesevsorassoccvaseceuns 1]

White v. Lemacks, 183 F.3d 1253 (11th Cir.

TEN iol lukas si cag dgechedenantauratbadpasels<ebeacercansas 1]

Youngberg v. Romeo, 475 U.S. 307 (1982)...........0....... 7

STATUTES:

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OPINIONS BELOW

The Order and Judgment of the Honorable Royal

Furgeson, United States District Judge, Western

District of Texas, San Antonio Division entered on

October 11, 2007 is non-published. App. 1-21. The

opinion of the United States Court of Appeals for the

Fifth Circuit entered on July 27, 2009, is unreported.

App. 22-37. The Court of Appeals order denying

rehearing en banc entered on August 24, 2009 is not

published. App. 38-39.

JURISDICTION

Rule 10 of the Rules of the Supreme Court of the

United States provides that a review on a writ of

certiorari is not a matter of right but of judicial

discretion. A petition for a writ of certiorari will be

granted only for compelling reasons. Compelling

reasons are indicated if the decision leading to the

petition contributes to a conflict of authority between

the Courts of Appeals or State Courts of last resort;

reflects a departure from the usual course of pro-

ceedings; or presents an important question of federal

law that has not been but should be settled by this

Court.

Petitioners have not set forth an adequate basis

to justify the exercise of this Court’s discretionary

jurisdiction. The legal principal of the case subjudice

was enunciated by this Court in DeShaney ov.

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

189 (1989), therefore, there is no conflict of authority

which should be settled by this Court.

+

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. XIV §1.

“All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the state wherein they reside. No state

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

state deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.”

42 U.S.C. §1983.

“Every person who, under color of any stat-

ute, ordinance, regulation, custom or usage,

of any state ... subjects or causes to be

subjected, any citizen of the United States or

person within the jurisdiction thereof to the

deprivation of any rights, privileges or

immunities secured by the Constitution and

laws, shall be liable to the party injured in

an action at law, suit in equity or other

proper proceeding... .”

STATEMENT OF THE CASE

The case at bar concerns the question of whether

or not Respondent Governmental Entity Bexar

County can be held liable under the Due Process

Clause for a rescue of the petitioners that was not as

expeditious as desired by petitioners. This Court has

previously enunciated the rule of law:

But nothing 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.

The clause is phrased as a limitation on the

state’s power to act, not as a guarantee of

certain minimal levels of safety and security.

It forbids the state itself to deprive indi-

viduals of life, liberty, or property without

“due process of law,” but its language cannot

fairly be extended to impose an affirmative

obligation on the state to ensure that those

interests do not come to harm through other

means. Nor does history support such an

expansive reading of the constitutional text

... the Due Process Clause of the Fourteenth

Amendment was intended to prevent govern-

ment “from abusing its power” or employing

it as an instrument of oppression.... its

purpose was to protect the people from the

state, not to insure that the state protected

them from cach other. The framers were

content to lead the extent of governmental

obligation in the latter area to the demo-

cratic political process.

DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189, 196 (1989).

Petitioners Mary Hale and Wayne Hale were

rescued from the Chlorine gas spill caused by third

party Union Pacific Railroad. Petitioners’ allegations

that they were not rescued as expeditiously as de-

sired does not state a cause of action under the state-

created danger exception to the Due Process Clause.

DeShaney v. Winnebago County Dept. of Social Ser

vices, 489 U.S. 189 (1989), County of Sacramento v.

Lewis, 523 U.S. 833 (1998). Neither do the volunteer

firefighters possess a constitutional right under the

Fourteenth Amendment to by-pass Command Control

and attempt a rogue rescue. Respondent asserts that

there is no compelling reason for this court to

readdress this issue.

I. Petitioners Rescued.

On June 28, 2004, a Union Pacific train and a

Burlington Northern train collided causing Chlorine

Gas to envelope the area with invisible pockets of

death. The train derailment occurred at approxi-

mately 5:00 a.m. and was a couple of hundred yards

from petitioners’ residence. Law enforcement and

emergency responders from Bexar County, the City

of San Antonio and other surrounding ayencies re-

sponded to the event. In accordance with the Bexar

County Emergency Management Plan, the mutual

aide agreement among local governmental agencies

and the National Incident Management System

protocols and procedures, Bexar County determined

that the San Antonio Fire Department would be the

exclusive agency to approach the accident site and

attempt rescue. This was accomplished through the

establishment of a Command Control Center. Ulti-

mately, petitioners were rescued at approximately

11:30 a.m.

II. Nascent Volunteers Go Rogue.

The Volunteer Petitioners, husband and wife

tandem team Harold and Jennifer Harris, along with

Darrell Scraper, were prevented from entering the

toxic cloud area by Sergeant Coleman of the Bexar

County Sheriff’s Department pursuant to Command

Control instruction. The well-intentioned volunteers

opined that they could drive a truck through a

cornfield to conduct a rescue of the Hales. These

nascent volunteers intended to conduct the rescue

without any appropriate materials, suits or other

appropriate equipment. The Volunteer Petitioners’

rogue intentions at rescue are not constitutionally

protected under the Due Process Clause of the

Fourteenth Amendment.

lil. Sergeant Coleman’s Qualified Immunity.

Sergeant Coleman of the Bexar County Sheriff’s

Department, pursuant to Command Control instruc-

tions prevented the nascent volunteers’ rogue attempt

at rescue. On March 21, 2007, the Honorable United

States District Judge Royal Furgeson' granted

6

Sergeant Coleman’s Motion to Dismiss pursuant to

Rule 12(b)(6), Fed. R. Civ. P. The trial court reasoned

that the petitioners failed to allege a constitutional

deprivation. This ruling was not preserved by

petitioners either at the Fifth Circuit Court of

Appeals nor in this Court on Petitioners’ Writ for

Certiorari and is therefore, waived.

IV. Summary Judgment.

On July 30, 2008, the Honorable Royal Furgeson

granted Respondent Bexar County’s Motion for Sum-

mary Judgment and entered Final Judgment in the

case. (See, App. 1). The Trial Court reasoned that the

petitioners had failed to allege a_ constitutional

deprivation of municipal liability under Monell v.

New York City Dept. of Social Services, 436 U.S. 658

(1978) and held that the Respondent could not be

held liable under Section 1983 where there was no

constitutional deprivation at the hand of the indi-

vidual officer in question under City of Los Angeles v.

Heller, 475 U.S. 796 (1986).

V. Fifth Circuit Affirms.

On July 27, 2009, the Fifth Circuit affirmed the

Trial Court’s granting of summary judgment to

Respondent Bexar County. On August 24, 2009, the

Fifth Circuit Court of Appeals denied Petitioners’

Motion for Rehearing En Banc.

+

7

REASONS FOR DENYING

WRIT OF CERTIORARI

Il. No Constitutional Deprivation.

Petitioners have failed to state a constitutional

deprivation under the state-created danger theory of

the Due Process Clause, as a matter of law. The Due

Process Clause generally confers no affirmative right

to governmental aide, even where such aide may be

necessary to secure life, liberty or property interests

of which the government itself may not deprive the

individual. DeShaney v. Winnebago County Dept. of

Social Services, 489 U.S. 189, 196 (1989); Youngberg

v. Romeo, 475 U.S. 307, 317 (1982). “... Although the

liberty protected by the Due Process Clause affords

protection against unwarranted government inter-

ference. ... it does not confer an entitlement to such

governmental aide as may be necessary to realize all

the advantages of that freedom.” Harris v. McRae,

448 U.S. 297, 317 (1980). As a general matter, then,

the state’s failure to protect an individual against

private violence simply does not constitute a violation

of the Due Process Clause. DeShaney v. Winnebago

County Dept. of Social Services, 489 U.S. 189, 197

(1989).

Several circuits have carved two exceptions to

this general rule in instances where the state is

obligated to aide or protect an individual from further

danger pursuant to a “special relationship”:

(1) The custody exception; and,

(2) The state-created danger exception.

8

Jackson v. Schultz, 429 F.3d 586, 590 (6th Cir. 2005).

For the purposes of this petition, the state-created

danger exception has been raised.

Although never specifically adopted by this

Court, the state-created danger exception applies

where the state causes or greatly increases the risk

of harm to its citizens without due process of law

through its own affirmative acts. Kallstrom v. City of

Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998). To

establish liability under the state-created danger

theory, a petitioner must show: (1) affirmative acts by

the state that create or increase the risk that an

individual will be exposed to private acts of violence;

(2) that the state’s actions placed the victim spe-

cifically at risk as distinguished from the risk that

affects the public at large; and (3) that the state knew

or clearly should have known that its actions spe-

cifically endangered an individual.

The state-created danger theory does not apply in

the case at bar since the Respondent’s actions did not

expose the petitioners to private acts of violence as

required by the first prong, nor did the Respondent

know or clearly should have known that their actions

specifically endangered the petitioners.

Il. Fifth Circuit.

The seminal case in the Fifth Circuit concerning

rescue efforts vis-a-vis the Due Process Clause is

Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992). In

Salas, the estate of a hostage killed by a gunman

9

during a confrontation sued the County and the

Sheriff individually asserting due process violations

for the handling of the hostage situation. Sheriff

Carpenter came upon a hostage situation at the

County Courthouse where police department SWAT

members had been dispatched to a hostage situation.

Sheriff Carpenter demanded that the police officers

leave claiming that courthouse security was within

his exclusive jurisdiction and replaced the trained

SWAT personnel with County Deputies to conduct the

negotiations. The Sheriff’s Department did not have

a SWAT team and lacked a hostage negotiation policy.

Ultimately, the hostage taker killed the hostage and

himself during the standoff. Plaintiffs’ claims focused

on Sheriff Carpenter’s decision to prevent the Ft.

Worth Police Department SWAT team from effectu-

ating the release of the hostage. The Fifth Circuit

held that the Due Process Clause was not implicated

by the negligent act of an official which caused

unintended loss or injury to life, liberty or property,

citing Daniels v. Williams, 474 U.S. 327, 328 (1986).

Ill. Other Circuits.

Petitioners champion their argument of state-

created danger by specific reliance on the Eighth and

Eleventh Circuit Courts of Appeals. Respondent as-

serts that this reliance is misplaced and petitioners’

argument vacuous.

10

A. Eighth Circuit.

In Avalos v. City of Glenwood, 382 F.3d 792 (8th

Cir. 2004), the Eighth Circuit addressed a claim of

state-created danger in the context of the husband of

a confidential informant who was encouraged by

police officers to take the law into his own hands

which resulted in the shooting of the plaintiff. The

Court held that there was no due process violation

under the theory of state-created danger reasoning as

follows:

The due process clause’s guarantee does not

entail a body of constitutional law imposing

liability whenever someone cloaked with

state authority causes harm and does not

transform every tort committed by a state

actor into a constitutional violation. County

of Sacramento v. Lewis, 523 U.S. 833, 848

(1998). The test to ascertain a_ valid

substantive due process violation is “whether

the behavior of the governmental official is

so egregious, so outrageous, that it may

fairly be said to shock the contemporary

conscious.” Under the state-created danger

theory, plaintiff must prove (1) they were a

member of a limited, precisely definable

group; (2) defendant’s conduct put plaintiff at

a significant risk of serious, immediate and

proximate harm; (3) the risk was obvious or

known to the defendant; (4) defendant acted

recklessly in conscious disregard of the risk;

and, (5) defendant’s conduct shocks the

conscious.

1]

The facts in the case at bar do not establish a

state-created danger theory under the Eighth Circuit,

as a matter of law. The Eighth Circuit is not in

conflict.

B. Eleventh Circuit.

In Waddell v. Henry County Sheriff’s Office, 329

F.3d 1300 (11th Cir. 2003), the Court refused to adopt

the state-created danger theory in the context of a

county jail inmate being released to work as a confi-

dential informant in a county vehicle with a known

propensity for driving while drunk. The inmate was

responsible for an automobile collision wherein

plaintiff’s decedent was fatally injured. The Eleventh

Circuit Court of Appeals affirmed the trial court’s

granting of defendant’s motion for summary judg-

ment holding that the plaintiffs had failed to state a

violation of substantive due process.

Pellucidly, the Court recognized that the

Eleventh Circuit had in the past recognized the

theory of state-created danger in Cornelius v. Town of

Highland Lake, Alabama, 880 F.2d 348 (11th Cir.

1989), a case which petitioners in the case at bar

heavily rely. However, the Court noted in White v.

Lemacks, 183 F.3d 1253, 1257 (11th Cir. 1999) that

the Court had concluded that the state-created

danger theory had been superseded by the standard

employed by the Supreme Court in Collins v. City of

Harker Heights, 503 U.S. 115 (1992). Thus, under the

Eleventh Circuit standard, conduct by a government

12

actor will rise to the level of a substantive due process

violation only if the act can be characterized as

arbitrary or conscious shocking in a constitutional

sense. The Eleventh Circuit has not adopted the

state-created danger theory, but rather relies on this

Court’s precedent in County of Sacramento v. Lewis,

523 U.S. 833 (1998). The Eleventh Circuit is not in

conflict.

C. Third Circuit.

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

(3rd Cir. 2003), the Third Circuit Court of Appeals

addressed a fact scenario which is a paradigm to the

case at bar. In Schieber, plaintiff’s decedent was

murdered inside her apartment. Earlier in the eve-

ning, apartment neighbors had calied 9-1-1 to report

a domestic disturbance, reporting that a female was

screaming and being choked in a violent disturbance.

Officers responded to the scene, knocked on the

apartment door, but received no response. The officers

made the discretionary decision not to force the door

open and restrained the neighbors from gaining

forcible entry. The officers told the neighbors not to

attempt forcible entry and informed them to call 9-1-1

if they heard any further disturbance.

The District Court denied the officers’ motion for

summary judgment concluding that there was a

material fact as to whether or not the officers greatly

increased the risk of harm to plaintiff’s decedent by

preventing the neighbors from effectuating the rescue

13

themselves under the state-created danger theory.

The Third Circuit Court of Appeals reversed the trial

court’s denial of summary judgment and rendered

judgment for the officers. The Third Circuit noted

that the trial court had relied on the previous prece-

dent of Kneipp v. Tedder, 95 F.3d 1199 (3rd Cir. 1996)

(as the petitioners in the case at bar have relied) but

the Third Circuit Court of Appeals further noted that

the Kneipp decision needed to be updated in iight

of this Court’s subsequent decision in County of

Sacramento v. Lewis, 523 U.S. 833 (1998). The Court

accordingly concluded that to prove a violation of

substantive due process in cases involving executive

action, the plaintiff must show that the state acted in

a manner that “shocks the conscious”. To generate

hability, executive action must be so ill conceived or

malicious that it shocks the conscious. The Court held

that the officers’ actions in restraining the neighbors

from their attempted rescue was not a violation of the

plaintiffs’ substantive due process right. The Third

Circuit Court of Appeals is not in conflict.

D. Sixth Circuit.

In Tanner v. County of Lenawee, 452 F.3d 472

(6th Cir. 2006), the Sixth Circuit affirmed the grant-

ing of summary judgment for the defendants in an

alleged state-created danger scenario. In Tanner,

plaintiffs were shooting victims arising from a home

invasion conducted by a brother-in-law in rural

Michigan. The plaintiffs fortunately survived their

gunshot wounds but brought suit against the county

14

emergency response team for the method in which it

responded to the emergency. Plaintiffs complained

that the emergency responders were not rapid enough

and complained that by setting up a _ perimeter

around the house, they cut off potentially lifesaving

rescue efforts allegedly violating their substantive

due process rights under the state-created danger

exception. However, the Sixth Circuit affirmed the

trial court’s granting of summary judgment holding

that the defendants were not liable under the state-

created danger exception. The Court reasoned that

the state-created danger exception has never been

extended to cover situations where police respond to a

9-1-1 call and set up a perimeter in an emergency

situation.

The Tanner case is not unlike the case at bar in

that emergency responders were dispatched to a 9-1-1

call and set up a perimeter by Command Control.

Both the Tanners and the Hales were rescued by

emergency responders and neither met their burden

of establishing an exception under the state-created

danger theory. The Sixth Circuit is not in conflict.

E. First Circuit.

In Rivera v. State of Rhode Island, 402 F.3d 27

(lst Cir. 2005), the First Circuit Court of Appeals

affirmed the trial court’s summary judgment for the

defendants in a state-created danger theory case. In

Rivera, the decedent’s estate sued under Section 1983

against the state who had promised to protect the

15

decedent who was a murder witness in a criminal

trial. Although the state failed in its promise to

protect the murder witness, the Court held that the

state action was not conscious shocking under the

standard of County of Sacramento v. Lewis, 523 U.S.

833 (1998). The Court noted that although the First

Circuit had discussed the state-created danger theory

it had never found it actionable under the facts

alleged in any particular case. The Court reasoned

that the state action must be so egregious, so out-

rageous, that it may fairly be said to shock the

contemporary conscious. The Rivera facts did not rise

to this level. The First Circuit is not in conflict.

IV. No State-Created Danger.

The fact scenario presented by petitioners simply

does not fit any judicially recognized definition of

state-created danger in any circuit. Petitioners were

exposed to a danger created by a train collision, not

attributable to any state action. As a result of the

train collision, petitioners were exposed to spewing

Chlorine gas creating invisible pockets of death

throughout the area. In accordance with the Bexar

County Emergency Plan and the National Incident

Management System Protocols and Procedures, it

was determined that the San Antonio Fire Depart-

ment Hazardous Materials ‘Team would be the exclu-

sive agency to approach the accident site and attempt

rescue.

16

Petitioners were rescued by the San Antonio Fire

Department Hazardous Materials Team, albeit not as

rapidly as petitioners desired. The San Antonio Fire

Department Hazardous Materials Team was the

“provider of an alternative” for the purposes of the

rescue made the basis of this case. The well-

intentioned volunteer husband and wife duo of

Jennifer and Harold Harris together with Darrell

Scraper were prevented from using their truck to

drive through a cornfield without hazardous material

suits in contravention to Command Control. Peti-

tioners do not possess a constitutional right to contra-

vene Command Control to commence their own

quixotic rescue.

Petitioners fact scenario simply does not meet

this Court’s standard of “shocks the conscious” test

enunciated in County of Sacramento v. Lewis, 523

U.S. 833 (1998) as is required to state a violation of

substantive due process, as a matter of law.

V. Waiver.

The anfractuous procedural history of this case

provides further reason for denial of Petitioners’

Writ for Certiorari. The nascent Volunteer Petitioners

waived their First Amendment argument before the

Fifth Circuit Court of Appeals by inadequate briefing.

These same Volunteer Petitioners have waived the

remainder of their Fourteenth Amendment argument

based on lack of briefing in their Petition for Writ of

Certiorari.

17

The Hale Petitioners’ argument on state-created

danger fails for a myriad of reasons, not the least of

which are the factual elements of the case. Peti-

tioners’ failure to appeal Sergeant Coleman’s dis-

missal, the only Bexar County employee sued, a

fortiori defeats any claim against Bexar County, as a

matter of law. City of Los Angeles v. Heller, 475 U.S.

796, 799 (1986) (per curiam).

VI. No Monell Violation.

As the United States District Court Judge Royal

Furgeson held in granting Respondent Bexar

County’s motion for summary judgment, petitioners

fail to show that Bexar County was the moving force

behind Plaintiffs’ constitutional rights violation

because there was no underlying violation. Peti

tioners failed to establish a custom or policy on behalf

of Bexar County that was a direct proximate cause of

any constitutional violation and therefore, the peti-

tion for writ of certiorari should be denied. Board of

County Commissioners of Bryan County, Oklahoma v.

Brown, 520 U.S. 397 (1997).

¢

CONCLUSION

Petitioners failed to assert a state-created danger

theory based on the fact scenario of the case sub-

judice. Petitioners were rescued and the manner in

which they were rescued does not shock the conscious

as was required under County of Sacramento v.

18

Lewis, 523 U.S. 833 (1998). Respondent requests that

Petitioners’ Writ for Certiorari be denied.

Respectfully submitted,

CHARLES S. FRIGERIO*

HECTOR X. SAENZ

LAW OFFICES OF CHARLES S. FRIGERIO

A PROFESSIONAL CORPORATION

Riverview Towers

111 Soledad Street, Suite 840

San Antonio, Texas 78205

(210) 271-7877

CLARKSON F. BROWN

BEXAR COUNTY ASSISTANT

CRIMINAL DISTRICT

ATTORNEY — CIVIL DIVISION

300 Dolorosa, Suite 4049

San Antonio, Texas 78205

(210) 335-2139 a

Attorneys for Respondents

*Counsel of Record

App. l

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

MARY HALE, WAYNE HALE,

JENNIFER HARRIS,

HAROLD HARRIS, and

DARRELL SCRAPER,

Plaintiffs,

Or

.

«

No.

SA-06-CA-0562-RF

OSPR Orn

Vv.

BEXAR COUNTY, TEXAS,

Defendant.

Sr LP

Sn

ORDER GRANTING DEFENDANT'S

MOTION FOR SUMMARY JUDGMENT

(Filed Jul. 30, 2008)

BEFORE THE COURT are Defendant Bexar

County’s (“Bexar County”) Motion for Summary Judg-

ment (Docket No. 66), filed May 8, 2008; Plaintiffs’

Response (Docket No. 67), filed May 16, 2008; and

Bexar County’s Reply (Docket No. 68), filed_May 27,

2008. The Court held a hearing on this matter on

July 15, 2008. After careful consideration, of the

briefs, the arguments made in open court, and the

applicable law, the Court is of the opinion that the

Motion for Summary Judgment (Docket No. 66)

should be GRANTED.

App. 2

Introduction

This case involves a tragic train derailment that

resulted in the death and injury of residents in the

nearby area. Both Bexar County and volunteer offi-

cials arrived on scene to assist during the emergency.

Plaintiffs allege Bexar County prevented attempted

rescue efforts, which could have limited their injury

and prevented death. Previously this Court dismissed

claims against Defendant Coleman based on qualified

immunity. The Court found that Plaintiffs failed to

state a claim for a violation of a clearly established

constitutional right. Bexar County now moves for

summary judgment arguing that there can be no

award of damages against a municipality when the

actions of its officer did not inflict constitutional

harm. After reviewing the previous ruling on this

matter, the Court finds that because no underlying

constitutional violation was committed, there can be

no municipal liability. Accordingly, the Motion for

Summary Judgment is granted.

Factual and Procedural Background

At 5:00 a.m. on June 28, 2004, a train carrying

chlorine gas derailed near the home of Plaintiffs

Wayne and Mary Hale (collectively the “Hales”).

Third Am. Compl., at 3. A Union Pacific train collided

with a Burlington Northern train where Nelson road

crosses the train tracks in southwest Bexar County.

Id. at 5. The train derailment was within a couple

hundred yards of the Hale’s house. 7d. The Hales

App. 3

were awakened by the sound of the derailment and

the overwhelming smell of the concentrated chlorine

gas. Id. Alarmed by the noise, Mary Hale reported the

crash to a Bexar County 911 operator, who notified

the Southwest Volunteer Fire Department (“SWFD”).

Id. at 4. The dispatcher contacted the appropriate

authorities about the Llales’ claim that there was

smoke and that they were having trouble breathing,

but failed to mention anything about a train derail-

ment. /d. The incident was within the jurisdiction of

SWFD, and outside the city limits of the City of San

Antonio. Jd. at 3. Accordingly, the Bexar County dis-

patcher called the SWFD and Plaintiffs Harold and

Jenniefer [sic} Harris in their capacities as assistant

chief and lieutenant, respectively, were dispatched to

the scene. Jd. at 4. The Harrises reached the scene at

5:15 a.m, followed by deputies from the Bexar County

Sheriff’s Office (“BCSO”) (dispatched to assist SWFD),

and SWFD Chief Darrell Scraper. /d. at 4-7.

As they approached in early morning darkness,

not yet aware that they were responding to a train

derailment, a BCSO patrol unit and a SWFD motor

unit drove into a cloud of chlorine gas. Jd. at 5. The

gas was leaking from a ruptured tank car on the

Union Pacific train. Jd. The two lead vehicles were

overcome by gas, and the sheriff’s deputy was able to

back his vehicle out and escape. /d. at 5. However, an

injured firefighter became incapacitated and was

rescued by SWFD Chief Harris. Jd. Harris requested

aid from Jarrett Fire Department (“JFD”) and

App. 4

Geronimo Village Fire Department (“GVFD”), and

requested an ambulance. Jd.

After the injured firefighter was transported for

further medical treatment, the SWFD rescuers put on

their bunker gear and self-contained breathing appa-

ratus, which provided limited protection from the

leaking chlorine gas, and returned to the scene pursu-

ant to national, state, and local protocols for hazar-

dous locations. Jd. at 5-6. Within an hour of the

collision and derailment, the Bexar County dispatcher

advised SWFD and BCSO of the chlorine cargo on the

Union Pacific train and the wind direction. /d. at 6. A

BSCO sergeant instructed all BCSO units to stay

clear of the scene. /d.

Meanwhile, around 6:00 a.m., Mary Hale made

another call to 911, reporting that she, her husband,

and her brother-in-law were having serious trouble

breathing and were attempting to evacuate in their

vehicle. Jd. at 6. Mary Hale informed dispatch that

their access to Nelson Road was blocked by a neigh-

bor’s locked gate, which prevented them from driving

their vehicle or even walking to the vicinity of the

Nelson Road bridge. Jd. They returned home. /d.

Plaintiffs allege that Bexar County officials knew of

the private gate that obstructed their exit because it

had been the subject of a newspaper article and

County officials regarded it as a public nuisance and

were considering legal action. Jd. However, the gate

remained intact at the time of the train wreck. /d.

App. 5

Chief Scraper arrived at the scene around 6:00

a.m. and established a forward command position,

while Harris retained his authority as incident com-

mander. San Antonio Fire Department (“SAFD”) per-

sonnel began arriving on the scene and were briefed

by SWFD. /d. at 7. Around 6:15 a.m. Harris and

SWFD Capt. Nolen found and rescued the Union

Pacific train engineer, carried him east on Nelson

Road away from the wreckage for about ten minutes,

and waited for a SWFD rescue vehicle. Jd. The two

rescuers, still in their bunker gear, returned to the

wreckage to search for the missing train conductor.

Id.

Around 6:30 a.m. BCFA notified SWFD that

nearby residents, including the Hales, were trapped

at 9281 Nelson Road. Jd. at 7. (This was an isolated

segment of Nelson Road across from the wreckage.

Id.) Both groups discussed options for rescuing the

Hales and SWFD, equipped with bunker gear and

self-contained breathing apparatuses, prepared to

approach the Hales’ residence through a cornfield,

upwind from the spill. Jd. At 7:00 a.m. Harris and

Nolen further investigated the wreckage and crossed

under the train on foot, heading east upwind, looking

for a safe rescue approach. /d. at 7-8. Chief Scraper

instructed the rescuers to take their Motor 3 truck to

initiate the rescue, possibly by driving a_ short

distance south down Pearsall Road and across a corn

field, to approach the residences from the south side

of the tracks — upwind from the chlorine contami-

nation. Jd. at 8. This attempt was thwarted by sheriff

App. 6

deputies who would not let SWFD move their vehicle

closer to the wreckage. Id.

By as late as 8:00 a.m., SAFD had not yet

committed the city’s HazMat team to the incident. /d.

at 9. SWFD Chief Scraper and Harris had asserted

their authority as incident commanders pursuant to

the Local Emergency Pianning Committee (LEPC),

HAZMAT/WMD Contingency Plan, the Bexar County

Emergency Management Plan (Annexes F & Q), and

the mutual aid agreement among local governmental

agencies, as well as National Incident Management

System protocols and procedures. According to Plain-

tiffs, Bexar County disregarded SWFD’s authority.

In accordance with Bexar County’s interpretation

of the Bexar County Emergency Management Plan

(Annexes F & Q), the mutual! aid agreement among

local governmental agencies, as well as National

Incident Management System protocols and proce-

dures, Bexar County determined that SAFD would be

the exclusive agency to approach the accident scene

and attempt a rescue, concluding that no other res-

cuers, including county fire, would be allowed to

attempt a rescue.

Meanwhile, Mary Hale was still in contact with

the Bexar County dispatcher, and informed her that

she and her husband were still in their vehicle trying

to escape the chlorine cloud, but were unsuccessful

because of the blocked road. Jd. at 10. The Hales were

still having serious trouble breathing. /d. The dis-

patcher maintained contact, indicated help was “on

App. 7

the way,” and advised the Hales to return to the

house, “shelter in place,” and turn off the air condition-

ing. Jd. Ultimately, turning off the air conditioning

worsened the situation. Jd. Furthermore, returning to

the house positioned the Hales closer to the chlorine

spill and train derailment compared to the desti-

nation the Hales had reached while attempting to

escape, which was closer to the safe zone. Id. Con-

sequently, this subjected the Hales to more concen-

trated chlorine contamination and poisoning. /d. at

11.

Two hours after SWFD was prevented from

initiating the Hales’ rescue, the Hales were contacted

by private rescuers by telephone. Jd. At 8:30 a.m.,

private rescuers informed the Hales tnat they were

on their way to the Hales’s residence from the south-

east. Id. Shortly thereafter, the private rescuers again

contacted the Hales and informed them that sheriff’s

deputies blocked their rescue attempt under threat of

arrest. Id.

Additionally, the Hales’s son Charles, who was

familiar with the area and had experience as a

volunteer firefighter with Primrose Fire Department,

was also denied the opportunity to make a rescue

attempt. Jd. Charles called 911 and informed the dis-

patcher that he could make the rescue; however, he

was informed that he may get shot if he attempted

the rescue. Jd. at 12. After driving to the area,

Charles could not get close enough to the house be-

cause sheriff’s deputies blocked his access. Jd.

App. 8

After SWFD’s attempts to use its Motor 3 vehicle

to make a rescue from the southeast were blocked,

Chief Harris requested Lt. Harris and GVFD fireman

Yanelli find a way around the wreckage from the

southeast to rescue the trapped residents. /d. at 13.

Both Lt. Harris and Yanelli had basic HazMat train-

ing, and Harris had successfully rescued two victims

from the wreckage. /d. Furthermore, Harris was

familiar with the scene due to a recent rescue she had

been involved with around the same area. /d.

SAFD committed its HazMat teams, which began

arriving at the command site at 8:30 a.m., and

prepared for a tactical entry through the wreckage at

approximately 9:45 a.m. to search for the missing

conductor — not the Hales. 7d. at 14. Plaintiffs con-

tend that this rescue attempt, through the wreckage,

was unnecessarily dangerous, slow, and inefficient.

Id.

Despite the fact that the only coordinated rescue

attempt was aimed at the missing conductor, at

approximately 9:10 a.m., Bexar County 911 staff

advised the Hales by telephone to get into the shower

for decontamination in preparation for imminent

evacuation. Reluctantly, the Hales showered off, ulti-

mately creating a chemical reaction with the chlorine

gas in the house, producing hydrochloric acid, which

allegedly resulted in further harm and injury. 7d. at

14-15.

At this time, Lt. Harris and Yanelli drove their

fire rescue truck along the county roads southwest of

App. 9

the wreck, searching for a way to approach the iso-

lated segment of Nelson Road, upwind of the wreck-

age, and away from the chemical hot zone. /d. at 15.

The two rescuers were observed by the operator of

BCSO Unit 2701, who contacted dispatch to see if

BSCO had authorized any firemen to be on the back

side of Nelson Road. /d. Lt. Kyle Coleman and

another deputy (of the BSCO) stopped Harris and

Yanelli, and ordered them out of the area. Jd. While

in their clearly marked SWFD rescue vehicle, the two

rescuers attempted to identify themselves and ex-

plain their actions; however, the BSCO deputy con-

tinued to yell at them and ordered them to leave

without an opportunity to show any credentials. /d.

Although the rescuers objected to the interference,

they complied due to fear of arrest. /d.

According to a partial transcript of BCSO radio

communications prepared at the request of the

National Transportation and Safety Board, at around

9:45 a.m., the operator of BSCO Unit 2701, Lt.

Coleman was advised about the SWFD presence and

authority to check homes and proceed along Nelson

Road. Jd. at 17. The BSCO operator of BSCO Unit

2004, Lt. Raul Fernandez informed Lt. Coleman that

the SWFD Asst. Chief had sent firemen into the back

side of Nelson Road to check on some homes, and

noted that “it’s their call, it’s the county side.” Jd. at

17. Both Lt. Coleman and Lt. Fernandex [sic] were

senior sheriff patrol supervisors in charge of opera-

tions at the accident. Jd. Nevertheless, after being

informed of SWFD’s_ presence and _= apparent

App. 10

jurisdiction, or at least authority to conduct their

rescue efforts, Lt. Coleman responded “well, we just

orderd [sic] them out of here, we've already took care

of that, and we’re not going to allow ‘em back in here

... until the fire command over there .. . tells us they

can come back in.” 7d. Plaintiffs allege that the

deputies were acting pursuant to an official decision

to block anyone other than SAFD HazMat team from

approaching the accident scene. /d. at 17.

The Harrises and Darrell Scraper allege that Lt.

Coleman, a BCSO sergeant, ordered them to stay out

of the area. Jd. at 9. Similarly, the Hales allege that

other private rescuers, such as their son, Charles,

were prevented from attempting a rescue /d. at 11-12.

Lt. Coleman denies these allegations. Answer, at 3-5.

When the Hales returned home, they again called

911 and followed instructions to turn off their air-

conditioning and rinse in the shower (for decon-

tamination) in preparation for rescue. Third Am.

Compl., at 33. Both actions increased the humidity

inside their home, causing a chemical reaction which

produced hydrochloric acid. Jd. The 911 operator

assured them that help was on the way, and advised

them to stay put. Jd. The Hales allege that they

detrimentally relied on the operator, instead of con-

tinuing self-evacuation efforts or contacting private

rescuers. Id. at 34.

SAFD finally reached the Hales at 11:30 a.m. /d.

at 32-33. The Hales believe they could have been

saved as early as 7:30 a.m. if Lt. Coleman and other

App. 11

deputies had not interfered with SWFD. /d. They

allege that, as a result of the delay, they suffered

prolonged exposure to chlorine gas and hydrochloric

acid. Jd. at 33. When SAFD arrived, Mary Hale was

almost unconscious and near death. Jd. Her brother-

in-law, who was living with the Hales at the time,

died a few months later. Finally, Wayne Hale’s mother

and step-sister, who lived next door, were dead when

help arrived. Jd.

Plaintiffs contend this was an official county deci-

sion pursuant to an interpretation of LEPC, HazMat/

WMD Coeatingency Plan, the Bexar County Emer-

gency Management Plan (Annexes F & Q), and the

mutual aid agreement among local governmental

agencies as well as National Incident Management

System protocols and procedures.

Claims

Plaintiffs Mary Hale and Wayne Hale (collec-

tively “Plaintiffs”) assert that Lt. Coleman acted

pursuant to a policy, practice, or custom adopted by

Bexar County that resulted in their constitutional

rights being violated. Alternatively, Plaintiffs argue it

was Bexar County’s failure to adequately train and

supervise law enforcement officers not to exceed their

authority under the LEPC HAZMAT/WMD Contin-

gency Plan, the Bexar County Emergency Managc-

ment Plan, and the mutual aid agreement among

local government agencies, that resulted in their

constitutional rights being violated. Jd. at 17, 39.

App. 12

Bexar County asserts that it is entitled to Sum-

mary Judgment as a matter of law according to City

of Los Angeles v. Heller because a municipality cannot

not be held liable under Section 1983 where no

constitutional deprivation occurred. 475 U.S. 796

(1986). Bexar County further contends that according

to Monell v. New York City Dept. of Social Science,

Plaintiffs have failed to demonstrate a custom or

policy of Bexar County that was the moving force

behind the alleged injuries. 436 U.S. 658 (1978).

Standard of Review

Summary judgment is appropriate if the evidence

shows there is no genuine issue as to any material

fact and the moving party is entitled to a judgment as

a matter of law. Fed. R. Civ. P. 56(c); Hason v. Thaler,

73 F.3d 1322, 1325 (5th Cir. 1996); Int'l Shortstop Inc.

v. Rally Inc., 939 F.2d 1257, 1263 (5th Cir. 1991). In

the summary judgment process, both movants and

non-movants bear burdens of proof. Celotex Corp. v.

Catrett, 477 U.S. 317 (1986). The movant with the

burden of proof at trial must establish every essential

element of its claim or affirmative defense. Jd. at 322.

In so doing, the moving party without the burden of

proof need only point to the absence of evidence on an

essential element of the non-movant’s claims or

affirmative defenses. /d.

At that point, the burden shifts to the non-

moving party to “produce evidence in support of its

App. 13

claims or affirmative defenses.” Jd. at 324. The non-

moving party must produce “specific facts” showing a

genuine issue for trial and not mere general allega-

tions. Fed. R. Civ. P. 56(e); Tubacex v. M/V Risan, 45

F.3d 951, 954 (5th Cir. 1995); Ray v. Tandem

Computers, Inc., 63 F.3d 429, 433 (5th Cir. 1995). It is

important to note that “[njeither ‘conclusory allega-

tions’ nor ‘unsubstantiated assertions’ will satisfy the

non-movant’s burden.” Wallace v. Tex. Tech. Univ., 80

F.3d 1042, 1047 (5th Cir. 1996).

In deciding whether to grant summary judgment,

the Court should view the evidence in the light most

favorable to the party opposing summary judgment

and indulge all reasonable inferences in favor of that

party. Thus, the Court construes all facts and in-

ferences in the light most favorable to the non-moving

party. Richter v. Merchs. Fast Motor Lines, Inc., 83

F.3d 96, 98 (5th Cir. 1996).

The Fifth Circuit has concluded “[t/he standard

of review is not merely whether there is a sufficient

factual dispute to permit the case to go forward, but

whether a rational trier of fact could find for the non-

moving party based upon the evidence before the

court.” James v. Saudler, 909 F.2d 834, 837 (5th Cir.

1990) (citing Matsushita Electrical Indus. Co., v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986)). To the

extent facts are undisputed, a Court may resolve the

case as a matter of law. Blackwell v. Barton, 34 F.3d

298, 301 (5th Cir. 1994).

App. 14

Analysis

Bexar County cannot be held liable under Section

1983 where no constitutional depravation has oc-

curred. Heller, 475 U.S. at 799 (holding that “liJf a

person has suffered non constitutional injury at the

hands of the individual police officer, the fact that the

departmental regulations might have authorized the

use of constitutionally excessive force is quite beside

the point”) (emphasis in original). Furthermore, be-

cause there was no underlying constitutional viola-

tion, the issue regarding whether Bexar Conty [sic]

was the moving force behind the violation becomes

moot. Flores v. Sanchez, 2005 U.S. Dist. LEXIS

15417, at *30 (W.D. Tex. July 29, 2005); Monell v.

New York City Dept. of Social Servs., 436 U.S. 658

(1978).

Bexar County asserts that because its employee

deputy did not violate a clearly established constitu-

tional or federal right it cannot be held liable under

Section 1983. Bexar County also argues that although

municipalities can be held liable under section 1983,

it is not subject to vicarious or respondeat superior

liability for the actions of its law enforcement or

emergency responders. Instead, municipal liability

under Section 1983 can only arise when the harm

occurred as a result of an official policy or custom,

which was the moving force behind the constitutional

violation,

In order to properly state a Section 1983 claim

against Bexar County, Plaintiffs must identify (1) an

App. 15

official policy or custom (2) of the city’s policymaker

(3) that caused (4) the plaintiff to be subjected to a

deprivation of a constitutional right. Palmer v. City of

San Antonio, 810 F.2d 514, 516 (5th Cir. 1987)

(quoting Grandstaff v. City of Borger, 767 F.2d 161,

169 (5th Cir. 1987)). Unless an employee acts pur-

suant to an official policy or custom, municipalities

are not liable for the constitutional torts of their em-

ployees. Monell, 436 U.S. at 663 n.7 (1978) (stating

the doctrine of respondeat superior is not a basis for

rendering municipalities liable under Section 1983

for the constitutional torts of their employees).

“To support a claim based upon the existence of

an official custom or policy, the Plaintiff must plead

facts which show that: 1) a policy or custom existed;

2) the governmental policy makers actually or con-

structively knew of its existence; 3) a constitutional

violation occurred; and 4) the custom or policy served

as the moving force behind the violation.” Meadow-

briar Home for Children, Inc. v. G.B. Gunn, 81 F.3d

521, 532-33 (5th Cir. 1996) (citing Palmer, 810 F.2d at

516).

Plaintiffs must allege sufficient facts to show

that Bexar County, through its policy makers, created

or had constructive knowledge of an official policy

that sanctioned or encouraged a deprivation of rights

protected by the Constitution. See Webster v. City of

Houston, 735 F.2d 838, 841 (5th Cir. 1984). Official

policy is:

App. 16

1. A policy statement, ordinance, regula-

tion, or decision that is officially adopted and

promulgated by the municipality’s lawmak-

ing officers or by an official to whom the

lawmakers have delegated policy-making

authority; or

2. A persistent, widespread practice of city

officials or employees, which, although not

authorized by officially adopted and promul-

gated policy, is so common and well settled

as to constitute a custom that fairly repre-

sents municipal policy. Actual or constructive

knowledge of such custom must be attrib-

utable to the governing body of the munici-

pality or to an official to whom that body had

delegated policy-making authority. Actions of

officers or employees of a municipality do not

render the municipality lable under § 1983

unless they execute official policy as above

defined.

Id.

Fifth Circuit precedent has consistently held that

there can be no award of damages against a munici-

pal corporation based on the actions of one of its

officers when the officer inflicted no constitutional

harm. Rios v. City of Del Rio, Tex., 444 F.3d 417, 426

(5th Cir. 2006); Alpha v. Hooper, 440 F.3d 670, 672

(5th Cir. 2006); Mace v. City of Palestine, 333 F.3d

621, 625 (5th Cir. 2003); Saenz v. Heldenfels Bros.,

Inc. 183 F.3d 389, 392 (5th Cir. 1999). In a previous

Order, this Court examined whether Deputy Cole-

man’s actions amounted to a violation of a clearly

App. 17

established constitutional right, the first prong under

qualified immunity. See Docket No. 46. After an

extensive analysis the Court found guidance in Salas

v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992), and

ruled that the a constitutional depravation or denial

of a federal right had not occurred. The Court stated:

Applying these principles, the Hales have

failed to state a due process claim. Coleman

neither caused the derailment, nor did any-

thing to affirmatively exacerbated [sic] the

danger. Further, he provided for the Hales

to be rescued by SAFD. Thus, this case is

similar to Salas, where the sheriff exercised

his authority to replace one rescue effort

with another. Despite their horrifying experi-

ence, the Hales simply have not alleged any

facts indicating egregious official conduct or

an abuse of authority with the intent to

injure. The Fourteenth Amendment does not

punish negligence committed by law enforce-

ment officers responding to an emergency in

a dangerous environment and on the basis of

uncertain information.

The Hales purport to bring an equal

protection claim, but their Complaint is de-

void of any supporting factual allegations or

legal authority. The equal protection clause

generally requires the government to treat

similarly situated people alike.’ This Court

' Rolf v. City of San Antonio, 77 F.3d 823, 828 (5th Cir.

1996).

App. 18

may conduct an equal protection analysis

“only if the challenged government action

classifies or distinguishes between two or

more relevant groups.” The Hales, however,

do not allege that Coleman treated them

differently from other individuals, nor that

they are members of a suspect class, nor that

Coleman purposefully discriminated against

them or sought to prevent them from exer-

cising a fundamental right.° Accordingly, the

Hales have not stated a clearly established

violation of their equal protection rights.

This Court does not doubt that the Hales

suffered physical injury and agony from the

unfortunate events of June 28, 2004. Fur-

ther, the Court expresses no opinion con-

cerning whether Coleman properly handled

the situation. Nonetheless, the Hales have

not carried their burden to state a claim

against Coleman for the violation of a clearly

established constitutional or federal statu-

tory right. Because Coleman is entitled to

qualified immunity, his Motion to Dismiss

must be GRANTED....

Docket No. 46 at 11-12. Regarding the firefighters

claims, the Court stated:

(T]he Court is of the opinion that the

firefighters have failed to state a due process

cmim....

* Id.

See DeShaney, 489 U.S. at 197 n.3.

App. 19

In sum, the firefighters have not carried

their burden to state a claim against Cole-

man for the violation of a clearly established

constitutional or federal statutory right.

Coleman is entitled to qualified immunity,

and his motion to dismiss must be GRANT-

ED,

Id. at 12-13. Based on this Court’s previous findings,

and Fifth Circuit precedent that requires the exis-

tence of a constitutional depravation before municipal

lability can apply under Section 1983, Bexar County

is not liable under Section 1983 as a matter of law.

Heller, 475 U.S. at 799. Accordingly, Plaintiffs cannot

show that Bexar County was the moving force behind

Plaintiffs’ constitutional rights violation because

there was no underlying violation. Monell, 436 U.S.

at 694. Therefore, Bexar County’s Motion for Sum

mary Judgment should be granted.

As an aside, the Court acknowledges that our

civil servants provide an invaluable service to our

communities on a daily basis. One can only imagine

the difficult circumstances they encounter in the line

of duty. However, it is apparent that regardless of

good intentions mistakes are made from time to time.

Without expressing an opinion on whether Lt.

Coleman properly handled the situation, this Court is

sympathetic to Plaintiffs in this case and the

experience they have endured. Clearly, there is room

for improvement in the coordination and organization

of rescue efforts, which fell short of the level of

services and coordination county residents would

App. 20

expect when faced with such a tragic scenario.

Although the Court is bound by the current state of

the law, and as a result Bexar County is relieved of

civil liability, the Court is of the opinion that Bexar

County should immediately and unerringly redevelop

and reevaluate the emergency rescue efforts so a

similar situation cam never present itself.

Additionally, the Court commends the attorneys

on both sides of this case for their thoughtful, well-

reasoned briefing and first-rate oral presentations.

These types of cases are difficult for all parties

involved, including the lawyers on both sides and the

Court. The fact remains, however, that Plaintiffs’

evidence does not carry the burden in establishing

municipal liability.

Conclusion

For the foregoing reasons, the Court finds that

because there was no underlying constitutional viola-

tion or depravation of a federal right, Bexar County

cannot be held liable under Section 1983. Further-

more, Plaintiffs have failed to establish a policy or

custom that was the moving force behind a constitu-

tional violation. Accordingly, Bexar County’s Motion

for Summary Judgment (Docket No. 66) is GRANT-

ED.

App. 21

It is so ORDERED.

Signed this 30th day of July, 2008.

/s/ Royal Furgeson

ROYAL FURGESON

UNITED STATES

DISTRICT JUDGE

App. 22

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50820

MARY HALE; WAYNE HALE;

JENNIFER HARRIS; HAROLD HARRIS;

DARRELL SCRAPER

Plaintiffs-Appellants

V.

BEXAR COUNTY, TEXAS

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:06-CV-0562

(Filed Jul. 27, 2009)

Before REAVLEY, DAVIS, and BENAVIDES, Circuit

Judges.

PER CURIAM:*

This is an appeal from a summary judgment

granted in favor of Appellee Bexar County in a suit

* Pursuant to 5Ti1 Cir. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH Cir. R.

47.5.4.

App. 23

stemming from a train derailment and related events

that resulted in the death and injury of residents in

the nearby area. Appellants — Wayne and Mary Hale

(the “Hales”), residents of the area in which the train

derailed, and Darrell Scraper, Harold Harris, and

Jennifer Harris, members of the Southwest Volunteer

Fire Department (““SWFD”) — sued Bexar County and

Bexar County Sheriff’s Office Lieutenant Kyle Cole-

man (“Lt. Coleman”) under 42 U.S.C. § 1983, alleging

that they prevented attempted rescue efforts by vol-

unteer rescuers which could have limited the Hales’

injuries related to the train derailment. Appellants

appeal the district court’s grant of summary judg-

ment in favor of Bexar County. For the following rea-

sons, we affirm the judgment of the district court.

I.

On June 28, 2004, a train carrying chlorine gas

derailed near the Hales’ home of in [sic] Bexar

County, outside of the city of San Antonio. The train

derailment was within two-hundred yards of the

home. The Hales were awakened by the sound of the

derailment and the smell of the concentrated chlorine

gas. Mary Hale reported the crash to a Bexar County

911 operator, who notified the Southwest Volunteer

Fire Department. The incident was within the

jurisdiction of SWFD and outside the city limits of the

City of San Antonio. Plaintiffs Harold and Jennifer

Harris, in their capacities as assistant chief and

lieutenant of the SWFD, were dispatched to the

scene. The Harrises reached the scene at 5:15 a.m.,

App. 24

followed by deputies from the Bexar County Sheriff’s

Office (“BCSO”) and SWFD Chief Darrell Scraper.

As they approached the scene, a BCSO patrol

unit and a SWFD motor unit drove into a cloud of

chlorine gas. The gas was leaking from a ruptured

tank car on the train. The two lead vehicles were

overcome by the chlorine gas. The sheriff’s deputy

was able to back his vehicle out and escape, but an

injured firefighter became incapacitated and was

rescued by SWFD Chief Harris. After the injured

firefighter was transported for medical treatment, the

SWFD rescuers put on their bunker gear and self-

contained breathing apparatuses, which provided

limited protection from the leaking chlorine gas, and

returned to the scene. Within an hour of the derail-

ment, the Bexar County dispatcher advised SWFD

and BCSO of the chlorine gas and the wind direction.

A BCSO sergeant instructed all BCSO units to stay

clear of the scene.

At 6:00 a.m., Mary Hale made another call to

911, reporting that she, her husband, and her

brother-in-law were having serious trouble breathing

and were attempting to evacuate in their vehicle.

Mary Hale informed dispatch that their access to the

road was blocked by a neighbor’s locked gate, which

prevented them from driving their vehicle or walking

to evacuate the area.

SWFD Chief Scraper arrived at the scene around

6:00 a.m. and established a forward command posi-

tion, while Chief Harris retained his authority as

App. 25

incident commander. San Antonio Fire Department

(“SAFD”) personnel began arriving on the scene and

were briefed by SWFD. Around 6:15 a.m. Harris and

SWFD Capt. Nolen found and rescued the train

engineer, carried him east away from the wreckage

for about ten minutes, and waited for a SWFD rescue

vehicle. The two rescuers, still in their bunker gear,

returned to the wreckage to search for the missing

train conductor.

Around 6:30 a.m., SWFD was notified that

nearby residents, including the Hales, were trapped

at 9281 Nelson Road. SAFD and SWFD discussed

options for rescuing the Hales and SWFD, equipped

with bunker gear and self-contained breathing appa-

ratuses, prepared to approach the Hales’ residence

through a cornfield upwind from the spill. At 7:00

a.m. Harris and Nolen further investigated the

wreckage and crossed under the train on foot, head-

ing east upwind, looking for a safe rescue approach.

Chief Scraper instructed the rescuers to take their

truck to initiate the rescue. Appellants allege that

this attempt was thwarted by BCSO deputies who

would not let SWFD move their vehicle closer to the

wreckage. Appellants allege that in accordance with

Bexar County’s interpretation of the Bexar County

Emergency Management Plan (Annexes F & Q), the

mutual aid agreement among local governmental

agencies, as well as National Incident Management

System protocols and procedures, Bexar County de-

termined that SAFD would be the exclusive agency to

approach the accident scene and attempt a rescue,

App. 26

concluding that no other rescuers would be allowed to

attempt a rescue. Mary Hale was still in contact with

the Bexar County dispatcher, and informed her that

she and her husband were still in their vehicle trying

to escape the chlorine cloud, but were unsuccessful

because of the blocked road. The Hales were still

having serious trouble breathing. The dispatcher

maintained contact, indicated help was “on the way,”

and advised the Hales to return to the house and turn

off the air conditioning. Returning to the house posi-

tioned the Hales closer to the chlorine spill and train

derailment, and consequently, the Hales allege,

exposed them to more concentrated chlorine contami-

nation and poisoning.

Two hours after SWFD was allegedly prevented

from initiating the Hales’ rescue, the Hales were

contacted by private rescuers by telephone. At 8:30

a.m., private rescuers informed the Hales that they

were on their way to the Hales’ residence from the

southeast. Shortly thereafter, the private rescuers

again contacted the Hales and informed them that

BCSO sheriff’s deputies blocked their rescue attempt.

Additionally, the Hales’ son Charles, who was

familiar with the area and had experience as a

volunteer firefighter, was also denied the opportunity

to make a rescue attempt. Charles called 911 and

informed the dispatcher that he could make the

rescue; however, he was informed that he would be

stopped if he attempted the rescue. After driving to

the area, Charles could not get close enough to the

house because sheriff’s deputies blocked his access.

App. 27

SAFD committed its HazMat teams to the

incident, which began arriving at the command site

at 8:30 a.m. and prepared for a tactical entry through

the wreckage at approximately 9:45 a.m. to search for

victims. At approximately 9:10 a.m., Bexar County

911 staff advised the Hales by telephone to get into

the shower for decontamination in preparation for im-

minent evacuation. The Hales showered, ultimately

creating a chemical reaction with the chlorine gas

in the house, producing hydrochloric acid, which al-

legedly resulted in further harm and injury.

After SWFD’s attempts to use its vehicle to make

a rescue from the southeast were blocked, Chief

Harris requested Lt. Harris and fireman Michael

Yanelli find a way around the wreckage from the

southeast to rescue the trapped residents. Lt. Harris

and Yanelli drove their fire rescue truck along the

county roads southwest of the wreck, searching for a

way to approach the isolated segment of Nelson Road,

upwind of the wreckage, and away from the chemical

hot zone. The two rescuers were observed by the oper-

ator of BCSO Unit 2701, who contacted dispatch to

see if BSCO [sic] had authorized any firemen to be on

the back side of Nelson Road. BSCO [sic] Lt. Kyle

Coleman and another deputy of the BSCO sic]

stopped Harris and Yanelli, and ordered them out of

the area. Appellants allege that while in their clearly

marked SWFD rescue vehicle, the two rescuers

attempted to identify themselves and explain their

actions, but the BSCO [sic] deputy ordered them to

leave without an opportunity to show any credentials.

App. 28

According to a partial transcript of BCSO radio

communications prepared at the request of the Na-

tional Transportation and Safety Board, at around

9:45 a.m., the operator of BSCO [sic] Unit 2701, Lt.

Coleman, was advised about the SWFD presence and

authority to check homes and proceed along Nelson

Road. The BSCO [sic] operator of BSCO [sic] Unit

2004, Lt. Raul Fernandez, informed Lt. Coleman that

the SWFD Assistant Chief had sent firemen into the

back side of Nelson Road to check on some homes,

and noted that “it’s their call, it’s the county side.”

Both Lt. Coleman and Lt. Fernandez were senior

sheriff patrol supervisors in charge of operations at

the accident. After being informed of SWFD’s pres-

ence, Lt. Coleman responded “well, we just ordered

them out of here, we've already took care of that, and

we're not going to allow ‘em back in here... until the

fire command over there ... tells us they can come

back in.” Appellants allege that the deputies were

acting pursuant to an official decision to block anyone

other than the SAFD HazMat team from approaching

the accident scene. The Harrises and Scraper allege

that Lt. Coleman, a BCSO sergeant, ordered them to

stay out of the area. Similarly, the Hales allege that

other private rescuers, such 2s their son, Charles,

were prevented from attempting a rescue.

SAFD finally reached the Hales at 11:30 a.m. The

Hales believe they could have been rescued as early

as 7:30 a.m. if Lt. Coleman and other deputies had

not interfered with SWFD. They allege that, as a

result of the delay, they suffered prolonged exposure

App. 29

to chlorine gas and hydrochloric acid. When SAFD

arrived, Mary Hale was almost unconscious. Her

brother-in-law, who was living with the Hales at the

time, died a few months later. Wayne Hale’s mother

and step-sister, who lived next door, were dead when

help arrived.

The Hales assert that their substantive due proc-

ess rights under the Fourteenth Amendment were

violated when Bexar County and its officials failed to

allow the SWFD or other volunteer rescuers to at-

tempt a rescue. The Harrises and Scraper contend

that their constitutional rights were violated because

they were wrongfully prevented from rescuing the

Hales and others by Bexar County law enforcement

personnel. Defendant Coleman filed a motion to dis-

miss on the basis that he was entitled to qualified im

munity, which was granted by the district court.

Bexar County subsequently moved for summary

judgment on the claims asserted by Appellants in

their third amended complaint. The district court

granted Bexar County’s motion for summary judg-

ment, holding that Appellants had failed to allege a

constitutional violation to support their claims under

§ 1983. The instant appeal followed.

II.

This court reviews a district court’s grant of sum-

mary judgment de novo, applying the same standards

as the district court. Strong v. Univ. Healthcare Sys.,

L.L.C., 482 F.3d 802, 805 (5th Cir. 2007). Summary

App. 30

judgment is proper if the record reflects “that there is

no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). In deciding whether a genuine

issue of material fact exists, this court must draw all

reasonable inferences in favor of the responding

party. Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994).

In order to properly state a § 1983 claim against

Bexar County, Appellants must identify (1) an official

policy or custom (2) of the city’s policymaker (3) that

caused (4) the plaintiff to be subjected to a depri-

vation of a constitutional right. Palmer v. City of San

Antonio, 810 F.2d 514, 516 (5th Cir. 1987) (quoting

Grandstaff v. City of Borger, 767 F.2d 161, 169 (5th

Cir. 1987)). A “‘proper analysis requires us to sepa-

rate two different issues when a section 1983 claim is

asserted against a municipality: (1) whether plain-

tiff’s harm was caused by a constitutional violation,

and (2) if so, whether the [municipality] is responsible

for that violation.’” Rios v. City of Del Rio, Tex., 444

F.3d 417, 426 (5th Cir. 2006) (quoting Collins v. City

of Harker Heights, 503 U.S. 115, 120 (1992)). A

municipality cannot be held liable under § 1983 if

there is no underlying constitutional violation. Jd.

In order to establish the existence of a consti-

tutional violation in this case, the Hales urge that we

accept the state-created danger theory and _ hold

Bexar County liable thereunder. This Circuit has

never expressly accepted the state-created danger

theory that a due process violation can be found if a

App. 31

state created or increased the danger to the plaintiffs

and acted with deliberate indifference. Rios, 444 F.3d

at 422-23 (“|Nleither the Supreme Court nor this

court has ever either adopted the state-created dan-

ger theory or sustained a recovery on the basis there-

of. We have, however, many times refused to allow

recovery sought to be predicated thereunder.”); see

also Beltran v. City of El Paso, 367 F.3d 299, 307 (5th

Cir. 2004) (“This court has consistently refused to

recognize a ‘state-created danger’ theory of § 1983

liability”); Morin v. Moore, 309 F.3d 316, 321-24 (5th

Cir. 2002); McKinney v. Irving Indep. Sch. Dist., 309

F.3d 308, 313-14 (5th Cir. 2002).

In Salas v. Carpenter, 980 F.2d 299 (5th Cir.

1992), involving a § 1983 suit brought by the estate of

a slain hostage against the county sheriff who com-

manded hostage rescue efforts, we refused to find a

constitutional violation on the basis of the state-

created danger theory, or otherwise, in the context of

a failed rescue effort. In Salas, the plaintiff claimed

that the county sheriff deprived the victim of her life

by preventing city officials from coming to her aid,

using incompetent hostage negotiators, and failing to

provide adequate equipment to handle the hostage

situation. Salas, 980 F.2d at 303. After determining

that the plaintiff had not alleged a constitutional

violation, this court found that the sheriff was en-

titled to qualified immunity from suit. /d.

In considering the claim in Salas, we recognized

that some other Circuits had found “a denial of due

process when the state creates the ... dangers” faced

App. 32

by an individual. /d. at 309. We also noted a Seventh

Circuit case which held that a drowning victim had

stated a claim under the due process clause when a

deputy acting pursuant to county policy committed a

constitutional tort by “cutting off private avenues of

life saving rescue without providing an alternative.”

Id. at 308 (citing Ross v. United States, 910 F.2d 1422,

1433 (7th Cir. 1990)). After considering these po-

tential theories, we held that the plaintiff had not

alleged a constitutional violation, because despite the

fact that the sheriff dismissed the city police officers

who were attempting to aid the victim, the sheriff’s

deputies were at the same time securing the court-

house and commencing negotiations with the hostage-

taker. Salas, 980 F.2d at 308. We held that the facts

presented in Salas were unlike the situation in Ross

because the sheriff had provided a “meaningful

alternative” to the rescue efforts that were prevented.

Id. (“[I]n Ross, no effort was made to rescue a drown-

ing boy for thirty minutes. In contrast, at the time

Carpenter dismissed the police his deputies were

present and negotiating with Cabano. Carpenter did

not use his authority as a state officer to prevent any

rescue, rather he exercised his authority to replace

one rescue effort with another.”).

In addition, we noted that a state’s failure to pro-

tect a person can amount to a constitutional violation

only if the state had a duty to act. /d. at 308-09

(citing DeShaney v. Winnebago Cty. Dep't of Soctal

Servus., 489 U.S. 189 (1989)). After noting that some

settings create a special relationship between the

App. 33

state and a person —i.e., the person is held in state

custody or otherwise prevented by the state from

caring for herself — imposing a duty to protect the

person, this court in Salas noted that a failed rescue

effort did not present that type of circumstance. Id.

The court further stated that even if this Circuit

accepted the law of other Circuits which have found

constitutional violations when the state created the

danger, the sheriff had continued at all times to su-

pervise a law enforcement effort to secure the victim’s

safe release, and thus the situation did not qualify as

a state-created danger because the official did not

“faill] to take any action to alleviate the danger

which they created or aggravated.” Id. at 309.

Like those in Salas, the Hales’ claims do not

allege a constitutional violation for the purposes of

§ 1983. Even assuming that the prevention of all res-

cues without providing an alternative presents a

valid due process claim in this Circuit, those are not

the circumstances presented here. Although Appel-

lants have presented evidence that Coleman pre-

vented the SWFD volunteer firefighters from entering

the area, he did provide for the eventual rescue of the

Hales by the SAFD. Because Bexar County and

Coleman provided a meaningful (though delayed) res-

cue alternative to the prevented private rescue effort,

his actions did not violate the Hales’ due process

rights. Furthermore, Bexar County can only be held

hiabie if the Hales have asserted that its officials had

a duty to act. We have held that preventing a rescue

effort does not, in and of itself, create a special

App. 34

relationship between the state and a person imposing

a duty to protect the person. Salas, 980 F.2d at 308.

Even if the state-created danger theory was

explicitly recognized in this Circuit, it would not

apply here for the same reasons expressed in Salas.

In Salas, this court held that the defendant sheriff

could not be held liable under the theory because he

neither created the immediate risk of danger to the

hostage nor did he abandon the victim in the face of

the danger presented. 980 F.2d at 309. Certainly Lt.

Coleman did not create the immediate danger of the

chlorine gas coming from the derailed train. Even if

the rule encompassed a claim based upon the in-

crease of a “person’s vulnerability to private violence

by interfer[ence] with protective services which other-

wise would be available,” Salas, 980 F.2d at 308

(citing Freeman v. Ferguson, 911 F.2d 52 (8th Cir.

1990)), it would not apply here. Although Coleman

excluded the volunteer firefighters, the SAFD — the

firefighters Coleman thought were authorized to

attempt the rescue — did eventually rescue the Hales

and thus he cannot be characterized as “failing to

take any action to alleviate the danger.” Jd. at. 309.

Because there is no applicable precedent to support

the existence of the violation of a constitutional] right

under these circumstances, the district court did not

App. 35

err in granting summary judgment on the Hales’

§ 1983 claims.’

The Harrises and Scraper, members of the SWFD

who attempted to rescue the Hales, also assert that

the district court erred in granting summary judg-

ment in favor of Bexar County on the grounds that

they failed to assert a constitutional violation or

deprivation to sustain their claims under § 1983. The

Harrises and Scraper assert that their rights under

both the Fourteenth and First amendments were vio-

lated when they were prevented by Bexar County

officials from rescuing the Hales.°

As our sister Circuits have observed, there is no

constitutionally cognizable interest in a volunteer

position. See Versarge v. Township of Clinton N.J.,

984 F.2d 1359, 1370 (3d. Cir. 1993) (holding that

volunteer firefighter had no due process interest in

his position despite the fact that he received benefits);

Hyland v. Wonder, 972 F.2d 1129, 1140-42 (9th Cir.

1992) (holding that the litigant had no protected

Because the Hales have failed to allege a constitutional

violation, we need not address the issue of whether they prop-

erly alleged that Bexar County had an official policy which was

the moving force behind any such violation. See Rios, 444 F.3d at

426.

“ Although Appellants mention the First Amendment in

their brief, they do not provide any arguments concerning a

First Amendment violation or cite any authorities to support

such an argument. Accordingly, this argument has been waived

See United States v. Edwards, 303 F.3d 606, 647 (Sth Cir. 2002)

(inadequately briefed arguments are waived).

App. 36

property interest in or legal entitlement to his vol-

unteer position). Although those cases involved liti-

gants who were terminated from their positions, and

not those who were prevented from performing in

their volunteer capacity, they support the conclusion

that the Harrises and Scraper do not have a due

process right to serve as volunteer firefighters.

The Harrises and Scraper also allege that they

suffered an equal protection violation when they were

denied access to the Hales. Because tne SWFD are

not members of a protected class, any equal pro-

tection violation is evaluated under the rational basis

standard. Reid v. Rolling Fork Pub. Util. Dist., 854

F.2d 751, 753 (5th Cir. 1988) (“Since this case does not

concern a suspect or quasi-suspect classification such

as race or sex to which heightened scrutiny is given,

the equal protection clause requires only a minimum

degree of rationality.”). An equal protection violation

does not arise if there is any basis for a classification

or official action that bears a debatably rational

relationship to a conceivably legitimate governmental

end. /d.; see also Stefanoff v. Hays County, Tex., 54

F.3d 523, 526 (5th Cir. 1998) (“(“EJqual protection

rights are not violated as long as the policy is ration-

ally related to some legitimate governmental goal.”).

Although neither party addressed the issue of whether

Coleman or Bexar County had a rational basis for

Appellants do not assert in their brief, nor did they assert

at trial, that they are part of a suspect class.

App. 37

excluding the volunteer SWFD firefighters while

allowing the professional SAFD firefighters to enter,

it is evident that under the circumstances presented

here, excluding volunteers, however highly trained, in

a dangerous emergency situation is a conceivably

legitimate government goal.

If.

Because Appellants failed to allege a violation or

deprivation of their constitutiona! rights, the judg-

ment of the district court is AFFIRMED.

App. 38

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50820

MARY HALE; WAYNE HALE;

JENNIFER HARRIS; HAROLD HARRIS;

DARRELL SCRAPER

Plaintiffs-Appellants

v.

BEXAR COUNTY, TEXAS

Defendant-Appellee

Appeal from the United States District Court for the

Western District of Texas, San Antonio

ON PETITION FOR REHEARING EN BANC

(Filed Aug. 24, 2009)

(Opinion. _ 5 Cir.,__, F.3d )

Before REAVLEY, DAVIS, and BENAVIDES, Circuit

Judges.

PER CURIAM:

(v) Treating the Petition for Rehearing En Banc as

a Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. No member of the panel nor

judge in regular active service of the court having

requested that the court be polled on Rehearing En

App. 39

Banc (FED. R. App. P. and 5TH CIR. R. 35), the Petition

for Rehearing En Banc is DENIED.

( ) Treating the Petition for Rehearing En Banc as

a Petition for Panel Rehearing, the Petition for Panel

Rehearing is DENIED. The court having been polled

at the request of one of the members of the court and

a majority of the judges who are in regular active

service and not disqualified not having voted in favor

(FED. R. App. F and 5TH Cir. R. 35), the Petition for

Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ (Illegible] -

United States Circuit Judge