McClendon v. City of Columbia

• Decision Date: 05 September 2002
• Docket Number: No. 00-60256.,00-60256.
• Citation: 305 F.3d 314
• Parties: Peter Clayton McCLENDON, Plaintiff-Appellant, v. CITY OF COLUMBIA; et al., Defendants, City of Columbia; James R. Carney, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

305 F.3d 314

Peter Clayton McCLENDON, Plaintiff-Appellant, v. CITY OF COLUMBIA; et al., Defendants City of Columbia; James R. Carney, Defendants-Appellees.

No. 00-60256.

United States Court of Appeals, Fifth Circuit.

September 5, 2002.

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Kathryn Neal Nester (argued), Christopher & Nester, Ridgeland, MS, for Plaintiff-Appellant.

Thomas D. McNeese, Lawrence Elder Hahn, McNeese & Hahn, Columbia, MS, for City of Columbia.

Sandra Schuffert Mohler (argued), Jon Mark Weathers, Bryan, Nelson, Randolph & Weathers, Hattiesburg, MS, for Carney.

Ramon Gustave Viada, III, Abrams, Scott & Bickley, Houston, TX, for Texas Municipal League, Texas City Attorneys Ass'n, Texas Ass'n of School Boards Legal Assistance Fund, Texas Ass'n of School Boards, Texas Ass'n of School Administrators and Texas Council of School Attorneys, Amici Curiae.

Appeal from the United States District Court for the Southern District of Mississippi.

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, DENNIS and CLEMENT, Circuit Judges.

PER CURIAM:^*

In July 1993, Defendant-Appellee Detective James Carney, a City of Columbia police detective, loaned a gun to Kevin Loftin, an informant for the Columbia Police Department, to enable Loftin to protect himself from Plaintiff-Appellant Peter McClendon. Loftin subsequently used the gun to shoot McClendon. A panel of this court held that Detective Carney thereby violated McClendon's substantive due process rights and that the unconstitutionality of Detective Carney's conduct was clearly established at the time of his actions. See McClendon v. City of Columbia, 258 F.3d 432, 441-43 (5th Cir.2001), vacated and reh'g en banc granted, 285 F.3d 1078 (5th Cir.2002). We took this case en banc to determine whether the panel's conclusions were correct. En banc review is also warranted to resolve conflicting panel decisions addressing when a principle of law should be deemed "clearly established" in the context of qualified immunity analysis. Because under the facts established by the summary judgment record, viewed in the light most favorable to McClendon, there is no constitutional violation, we find that Detective Carney is entitled to qualified immunity. We further find, in the alternative, that even if those facts did establish a constitutional violation under current law, Detective Carney is nonetheless entitled to qualified immunity because his conduct was not objectively unreasonable in light of the law that was clearly established at the time of his actions. Accordingly, we AFFIRM the district court's summary judgment in favor of Detective Carney on qualified immunity grounds. In addition, we AFFIRM the district court's summary judgment in favor of Defendant-Appellee the City of Columbia, reinstating the portion of the panel opinion addressing this aspect of the district court's judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because the district court awarded summary judgment to the Defendants-Appellees, we view the facts in the light most favorable to Plaintiff-Appellant Peter McClendon. See Stults v. Conoco, Inc., 76 F.3d 651, 654 (5th Cir.1996). Between May of 1992 and December of 1993, Defendant-Appellee Detective James Carney ("Detective Carney") paid Kelvin Loftin to serve as an informant for the Columbia Police Department (the "CPD"). Loftin assisted Detective Carney and the CPD with drug enforcement investigations. During the week prior to July 12, 1993, Loftin spoke to Detective Carney about a conflict that had developed between Loftin and McClendon. Specifically, Loftin feared that McClendon might retaliate against Loftin for supplying a gun to an individual who subsequently shot McClendon's friend. Loftin told Detective Carney that McClendon was "fixing to try [Loftin]," and that the situation between the two men was at a "boiling point." Upon hearing about the situation, Detective Carney loaned Loftin a handgun so that Loftin could protect himself from McClendon. This handgun, which Detective Carney retrieved from his desk drawer, was apparently seized by the CPD as evidence in an unrelated investigation.

On the evening of July 12, 1993, McClendon and Loftin encountered each other (apparently by chance) at the Hendrix Street Apartments, where Loftin was staying. An altercation ensued, and Loftin shot McClendon in the face with the handgun that Loftin had obtained from Detective Carney. McClendon is now permanently blind as a result of the incident.

On July 11, 1996, McClendon filed the instant 42 U.S.C. § 1983 action in federal district court against Detective Carney, the CPD, the City of Columbia ("the City"), City of Columbia Mayor Harold Bryant ("Mayor Bryant"), and CPD Chief of Police Joe Sanders ("Chief Sanders") (collectively, "the Defendants").¹ The complaint alleges that the Defendants violated McClendon's due process rights under the Fourteenth Amendment by knowingly and affirmatively creating a dangerous situation that resulted in injury to McClendon and by failing to take reasonable steps to diffuse this danger.² Regarding Detective Carney, the complaint specifically contends that in providing Loftin with a handgun, Detective Carney "created a serious danger" that "caused Peter McClendon harm and violated McClendon's due process rights." Regarding the City, the complaint further alleges: (1) that the City had a custom or practice of allowing unabated access to evidence and evidence storage areas, which custom or practice proximately caused McClendon's injury by allowing Detective Carney to provide Loftin with the handgun used in the assault; and (2) that the City's failure to train Detective Carney regarding the use of informants displayed deliberate indifference to McClendon's rights and proximately caused McClendon's injury.

On December 31, 1998, Detective Carney moved for summary judgment, arguing that he did not violate McClendon's constitutional rights because his actions did not create the danger which resulted in McClendon's injuries. Detective Carney alternatively argued that he was entitled to qualified immunity from the suit because the unlawfulness of his actions was not clearly established as of July 12, 1993.

On April 20, 1999, the district court granted summary judgment to Detective Carney, holding that McClendon had not stated a viable constitutional claim. The court rejected McClendon's attempt to seek recovery from the state for injuries inflicted by a private actor under a "state-created danger" theory, explaining that the Fifth Circuit had not sanctioned such a theory of substantive due process liability. The court also found that, even if McClendon could maintain a viable constitutional claim based on a state-created danger theory, this claim would fail because Detective Carney "did not affirmatively place McClendon in a position of danger, stripping him of his ability to defend himself, and he did not cut off McClendon's potential sources of private aid." In the alternative, the district court determined that Detective Carney was entitled to qualified immunity from suit because his conduct was "objectively reasonable under the circumstances in light of clearly established law" in July of 1993.

McClendon attempted to appeal from this April 20, 1999 order, but this appeal was dismissed because McClendon's claims against the City had not yet been adjudicated. The City subsequently obtained permission from the district court to file a motion for summary judgment out of time. The City filed this motion on November 2, 1999, arguing that McClendon had not shown a city policy or custom that produced his injury and had not shown that the City acted with deliberate indifference to his safety. On March 6, 2000, the district court granted summary judgment to the City, finding: (1) that McClendon had not pled the facts of his "dangerous custom or practice" claim with sufficient particularity and, alternatively, had not demonstrated a custom or practice (as opposed to an isolated incident) that resulted in a deprivation of federal rights; and (2) that McClendon had not properly established the elements of an "inadequate training" claim under Gabriel v. City of Plano because he failed to provide proof of "the possibility of recurring situations that present an obvious potential for violation of constitutional rights and the need for additional or different police training." Gabriel, 202 F.3d 741, 745 (5th Cir.2000).

McClendon appealed the district court's summary judgments in favor of Detective Carney and the City. A panel of this court affirmed the summary judgment in favor of the City,³ but reversed the summary judgment in favor of Detective Carney, finding that McClendon could state a viable substantive due process claim if Detective Carney used his authority to engage in affirmative conduct (1) that he knew would create a danger to McClendon, increase a danger to McClendon, or make McClendon more vulnerable to a pre-existing danger, and (2) that was causally connected to McClendon's injuries. See McClendon, 258 F.3d at 435, 438. The panel determined that McClendon had adduced sufficient evidence to create a genuine issue of material fact suggesting that Detective Carney had violated McClendon's constitutional rights.

The panel acknowledged that Detective Carney would nonetheless be entitled to qualified immunity if his conduct was objectively reasonable in light of the law that was clearly established at the time of his actions. Id. at 438. The panel also implicitly acknowledged that neither the Supreme Court nor this court had expressly sanctioned any "state-created danger" theory as of July 1993, when the relevant events took place. Id. at 435, 438. However, the panel found that this court's discussion of the state-created danger theory in Salas v. Carpenter, 980 F.2d 299, 309-10 (5th...