455 F.3d 397 (D.C. Cir. 2006), 03-7060, Estate of Phillips v. District of Columbia

Docket Nº:03-7060, 05-7013.
Citation:455 F.3d 397
Party Name:ESTATE OF ANTHONY SEAN PHILLIPS, Sr., Lysa Lambert Phillips, Personal Representative of the Estate of Anthony Sean Phillips, Sr., Deceased, Individually and Mother and next Best Friend of Arzel Shamar Phillips and Anthony Sean Phillips, Jr., Minors, et al., Appellees v. DISTRICT OF COLUMBIA, A Municipal Corporation, et al., Appellees Donald Edwards
Case Date:August 01, 2006
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 397

455 F.3d 397 (D.C. Cir. 2006)

ESTATE OF ANTHONY SEAN PHILLIPS, Sr., Lysa Lambert Phillips, Personal Representative of the Estate of Anthony Sean Phillips, Sr., Deceased, Individually and Mother and next Best Friend of Arzel Shamar Phillips and Anthony Sean Phillips, Jr., Minors, et al., Appellees


DISTRICT OF COLUMBIA, A Municipal Corporation, et al., Appellees

Donald Edwards, Appellant.

Nos. 03-7060, 05-7013.

United States Court of Appeals, District of Columbia Circuit.

August 1, 2006

Argued January 9, 2006

Page 398

Appeals from the United States District Court for the District of Columbia (No. 00cv01113)

Donna M. Murasky, Assistant Attorney General, for the District of Columbia, argued the cause for the appellant. Robert J. Spagnoletti, Attorney General, and Edward E. Schwab, Deputy Attorney General, for the District of Columbia, were on brief.

Ralph L. Lotkin argued the cause for the appellee. Joel M. Abramson was on brief.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.


Karen LeCraft Henderson, Circuit Judge

Two District of Columbia (D.C. or District) firefighters who were injured and the families of their two colleagues who died in a May 1999 fire (Firefighters) brought a civil rights action against the District and Donald Edwards, the former Chief of the D.C. Fire Department (Department). Edwards

Page 399

seeks interlocutory review of the district court's denial of his motion to dismiss based on qualified immunity. We conclude that the district court erred in denying Edwards qualified immunity because the Firefighters did not allege the violation of a clearly established constitutional right; that is, even if Edwards's failure to remedy the Department's continuing violations of standard operating procedures amounted to conscience-shocking conduct, neither the District nor Edwards owed the Firefighters the "heightened obligation" required by our precedent and by the United States Supreme Court to impose an affirmative duty to protect them under the Due Process Clause of the Fourteenth Amendment. Accordingly, we reverse the district court's denial of Edwards's motion to dismiss on the qualified immunity ground.


Shortly after midnight on May 30, 1999, D.C. firefighters responded to a multi-alarm townhouse fire at 3146 Cherry Road N.E.1 Firefighter Anthony Sean Phillips Jr. entered the first floor with Lieutenant Frederick Cooper, the officer in charge of his engine company. Soon after entering the townhouse the two were separated and Cooper exited the building without Phillips. Meanwhile Lieutenant Charles Redding and firefighters Joseph Morgan and Louis J. Matthews, all three from a different engine company, also entered the burning building, unaware that Phillips and Cooper were inside. Battalion Chief Damian Wilk, the Incident Commander initially in charge of coordinating the Department's efforts at the site, relied on a portable radio device rather than the stronger-signal mobile radio mounted in his vehicle that he could have used had he established a fixed command post. Wilk radioed Redding twice to locate his position but Redding, inside the house, never received the transmission. Soon another fire truck arrived and began ventilating the townhouse's basement by breaking the rear basement sliding glass door.2 The truck improperly conducted the ventilation, resulting in a sudden temperature increase inside the structure. Superheated gases from the fire shot up the basement stairway to the first floor. Redding, still on the first floor and in the gases' path, ran out of the house, his face and back burning. He told Battalion Chief Wilk that Matthews was still in the townhouse, unaware that Morgan and Phillips were still inside as well. Wilk did not order a rescue effort until 90 seconds later, when Morgan exited the house suffering from severe burns. Seven minutes after the rescue effort began firefighters found Phillips severely burned and unconscious. Four minutes later they found Matthews in a similar state. Phillips died of his injuries 23 minutes after his removal from the townhouse. Matthews died of his injuries the following day. Morgan and Redding survived but suffered severe injuries.

One year later Morgan, Redding and Phillips's and Matthews's families filed separate civil rights actions under 42

Page 400

U.S.C. § 1983 (section 1983) against the District, Edwards3 and three other Department officials, including Wilk and Cooper.4] The Firefighters argued Edwards was deliberately indifferent to his duty to ensure that the Department complied with its own standard operating procedures (SOPs) and that his deliberately indifferent conduct deprived the Firefighters of their "constitutionally protected liberty, interests in life, personal security [and] bodily integrity" and of "substantive due process of law." Phillips 1st Am. Compl. ¶ 79, Joint Appendix (JA) 65; Redding 1st Am. Compl. ¶ 28, JA 87. The Firefighters relied on, inter alia, the Department's Reconstruction Report on the Cherry Road fire (Cherry Road report) that described numerous SOP violations that, they claimed, caused their respective injuries and deaths, including the Department's failure to follow equipment backup and maintenance procedures, its failure to ventilate the townhouse properly and to coordinate personnel, Cooper's failure to maintain required contact with and to locate Phillips and the Department's failure to supply sufficient personnel to the scene. See phillips 1st Am. Compl. ¶ 44, JA 53. The Firefighters also claimed that another report completed before the Cherry Road fire, namely an internal Reconstruction Report on the 1997 death of firefighter John Carter in a grocery store fire (Carter report), gave the defendants notice of the Department's failure to follow SOPs. The Cherry Road report noted that the deficiencies in training, staffing, equipment and administration identified in the Carter report persisted and declared that "the Department must no longer tolerate the notion that SOPs and proper fireground behaviors are only important for 'major' fires and not as important for 'routine' fires." Id. ¶ 44, JA 53 (quoting Cherry Road report). The Firefighters claimed that the Department's "policy and custom not to implement recommendations to improve operation of the [Department] or to enforce [SOPs] was conscious, knowing, and deliberate and not the result of simple or negligent oversight made under emergency, spur of the moment conditions without either the opportunity or time for deliberation" and, as such, was "an affirmative election of a specific course of action." Id. ¶ 65, JA 62. Regarding Edwards, the Firefighters alleged that he was required to comply with the "operational mandates of the D.C. Fire Department," and his failure to do so constituted a "de facto policy and custom of the District of Columbia of a deliberate indifference to such matters," id. ¶ 64, JA 61-62. Edwards's conduct was "egregious and shock[ed] the conscience" and constituted "deliberate indifference to the [Firefighters'] clearly established rights." Id. pp 67, 68, JA 62.

The District moved to dismiss the Firefighters' complaint under Federal Rule of Civil Procedure 12(b)(6), arguing that it failed to state a claim under section 1983. See def. District of Columbia's Mot. to

Page 401

Dismiss Pl.'s Am. Compl., D.D.C. No. 00-cv-01113, R. Doc. 39. Edwards joined the District's motion and also asserted his qualified immunity from suit in his individual capacity.5 See notice of Filing, D.D.C. No. 00-cv-01113, R. Doc. 52. The district court denied the motion, Estate of Phillips v. District of Columbia, 257 F.Supp.2d 69 (D.D.C.2003) (Phillips I), concluding the Firefighters stated a substantive due process claim against the defendants. Because the Carter report had put the Department on notice of the "serious consequences that could result" from Edwards's deliberate indifference to the enforcement of the Department SOPs, the court held that their complaint alleged conscience-shocking behavior under County of Sacramento v. Lewis, 523 U.S. 833, 847, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (conscience-shocking conduct violates substantive due process). Phillips I, 257 F.Supp.2d at 79. It also denied Edwards qualified immunity in light of his "ongoing failure to institute corrective training or to follow [the Department's] own rules even after the scathing reviews contained in a number of safety reports." Id. at 80. Based on the Carter report it was fair to assume, the district court stated, that Edwards and the other Department officials "had advance notice of the fatal pattern and practice of SOP violations within the Fire Department." Id. the court also concluded that the right to be free from "conscience-shocking executive action" was "clearly established" at the time of the fire because "the potential for deliberate indifference to [rise] to such a level as to shock the conscience has been repeatedly recognized." Id.

After the district court decided Phillips I, we issued two qualified immunity decisions, International Action Center v. United States, 365 F.3d 20 (D.C.Cir.2004) (IAC), and Fraternal Order of Police v. Williams, 375 F.3d 1141 (D.C.Cir.2004) (FOP). The district court sua sponte ordered the parties to address the impact of those decisions on the Phillips I decision but, after reviewing the parties' pleadings, it declined to modify it. Estate of Phillips v. District of Columbia, 355 F.Supp.2d 212 (D.D.C.2005) (Phillips II). In IAC we reversed a district court decision denying qualified immunity to District police supervisory personnel for their alleged failure to properly train and supervise their officers, finding the district court's analysis "failed to link the likelihood of particular constitutional violations to any past...

To continue reading