Pinder v. Johnson, 93-2125

• Decision Date: 29 August 1994
• Docket Number: No. 93-2125,93-2125
• Citation: 33 F.3d 368
• Parties: Carol L. PINDER, Individually and in her capacity as surviving Mother of her minor children, deceased; and as Personal Representative of the Estates of Kim Pinder, LaToya and Troy Brummel, Plaintiff-Appellee, v. Donald JOHNSON, PFC, individually and in his official capacity, Defendant-Appellant, and Commissioners of Cambridge, in the City of Cambridge, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 368

33 F.3d 368

Carol L. PINDER, Individually and in her capacity as surviving Mother of her minor children, deceased; and as Personal Representative of the Estates of Kim Pinder, LaToya and Troy Brummel, Plaintiff-Appellee, v. Donald JOHNSON, PFC, individually and in his official

capacity, Defendant-Appellant,

and

Commissioners of Cambridge, in the City of Cambridge, Defendant.

No. 93-2125.

United States Court of Appeals, Fourth Circuit.

Argued March 7, 1994.

Decided Aug. 29, 1994.

Rehearing In Banc Granted; Opinion Vacated Oct. 14, 1994.

ARGUED: Paul T. Cuzmanes, Wilson, Elser, Moskowitz, Edelman & Dicker, Baltimore, MD, for appellant. Barbara Gold, Baltimore, MD, for appellee. ON BRIEF: Samuel L. Israel, Weinberg & Green, Columbia, MD, for appellant. Philip H. Gold, Baltimore, MD, for appellee.

Before RUSSELL and MICHAEL, Circuit Judges, and RONEY, Senior Circuit Judge of the United States Court of Appeals for the Eleventh Circuit, sitting by designation.

Affirmed by published opinion. Judge RUSSELL wrote the opinion, in which Judge MICHAEL joined. Senior Judge RONEY wrote a dissenting opinion.

OPINION

DONALD RUSSELL, Circuit Judge:

Officer Donald Johnson ("Officer Johnson") appeals the decision of the district court denying his motion for summary judgment, 821 F.Supp. 376. We find no merit in Officer Johnson's assignments of error and accordingly affirm.

I.

This case arises from the tragic death of Carol Pinder's ("Pinder") three children in a fire that broke out in Pinder's home on March 10, 1989. On the evening of March 10, Pinder left work and went home in response to a telephone call informing her that Don Pittman ("Pittman"), a former boyfriend, had broken into Pinder's house and was threatening violence. When Pinder arrived at home, Pittman physically attacked her and threatened to kill her and her children.

Officer Johnson, employed by the Cambridge, Maryland Police Department, arrived at Pinder's home shortly after Pinder. By the time Officer Johnson arrived, Pittman had already been restrained by a neighbor, Darnell Taylor. Pinder told Officer Johnson what had happened, including how Pittman had broken into her home and threatened, attacked, and assaulted her. Officer Johnson arrested Pittman and escorted him to the police car.

After arresting Pittman, Officer Johnson returned to the house to speak with Pinder further. Pinder told Officer Johnson that, given Pittman's violent threats and previous conviction for attempting to burn down her house, she feared for the safety of her children. Pinder thus asked Officer Johnson whether she should remain at home with her children or return to work. In response, Officer Johnson assured Pinder that it was safe for her to return to work because Pittman would be kept in custody overnight. Pinder accordingly returned to work after Officer Johnson left with Pittman.

When Officer Johnson brought Pittman before Commissioner George Ames, Jr. ("Ames"), however, he only charged Pittman with trespassing and destruction of property having a value of less than three hundred dollars. As a result, after the hearing, Ames released Pittman on his own recognizance. Upon his release, Pittman took the ten-minute walk from the police station to the Pinder home, broke in, and set fire to the house. Pinder was at work at the time of the fire. Her three children, however, were asleep in the house during the fire and died of smoke inhalation.

Pittman was arrested later that night, charged with arson and murder, and held without bond. Subsequently, Pittman pled guilty to three counts of first degree murder and was sentenced to life in prison without parole.

Pinder, individually and as personal representative of the estates of her three minor children, filed a complaint against Officer Johnson and the Commissioners of Cambridge alleging, among other things, that defendants deprived her and her children of their constitutional right to substantive due process in violation of 42 U.S.C. Sec. 1983. Officer Johnson filed a motion for summary judgment contending that, as a matter of law, he was entitled to judgment because the Constitution imposed no affirmative duty on him to protect the Pinders from attack by Pittman. In the alternative, Officer Johnson argued that the doctrine of qualified immunity shielded him from liability for the conduct alleged in the complaint. The district court denied Officer Johnson's motion. Officer Johnson now appeals.

II.

We turn first to Officer Johnson's contention that the district court erred in denying his motion for summary judgment because he was not constitutionally obligated to protect Pinder's children. ¹ In support of his contention, Officer Johnson relies upon the Supreme Court's decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).

In DeShaney, the Wisconsin Department of Social Services received several reports that a four-year-old boy, Joshua, was suffering abuse at the hands of his father. DeShaney, 489 U.S. at 192-93, 109 S.Ct. at 1001-02. Despite these reports, the State failed to remove Joshua from his father's custody. Id. Eventually, Joshua's father struck him so severely that the boy suffered permanent brain damage. Id. at 193, 109 S.Ct. at 1001-02. Joshua and his mother brought suit, alleging that the State had deprived Joshua of his liberty without due process of law, in violation of his rights under the Fourteenth Amendment, by failing to intervene on his behalf. Id.

Finding that "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," id. at 195, 109 S.Ct. at 1003, the Supreme Court rejected the proposition that the State has a general constitutional duty to protect its citizens from private violence, id. at 197, 109 S.Ct. at 1004. The Court noted, however, that where the State has affirmatively acted to restrain an "individual's freedom to act on his own behalf--through incarceration, institutionalization, or other similar restraint of personal liberty," the Constitution imposes upon it a corresponding duty to protect that individual. Id. at 200, 109 S.Ct. at 1005-06. Accordingly, if "the State takes a person into its custody and holds him there against his will," it thereby assumes some measure of a constitutionally-mandated duty of protection. Id. at 199-200, 109 S.Ct. at 1005.

In the case at bar, Officer Johnson contends that DeShaney imposes upon the State a duty to protect an individual only when that individual is in the State's custody. Because neither Carol Pinder nor her children were in custody at the time of the attack, Officer Johnson argues that he did not violate their substantive due process rights because he had no duty, under DeShaney, to protect the Pinders from their attacker, Pittman. We disagree with this interpretation and application of the Court's holding in DeShaney.

In DeShaney the Court's analysis focused not only upon the custody issue but also upon the role, if any, the State played in creating or enhancing the danger Joshua faced. The Court found that "[w]hile the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them," id. at 201, 109 S.Ct. at 1006. The Court then concluded that "[t]he most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them." Id. at 203, 109 S.Ct. at 1007.

This language indicates that a constitutional duty to protect an individual against private violence may exist in a non-custodial setting when the State has taken affirmative action to create a dangerous situation or to render an individual more vulnerable to danger. While DeShaney does not define how large a role the State must play in the creation of danger or vulnerability before it assumes a corresponding constitutional duty to protect, we think it is clear that at some point such actions do create such a duty. ²

Other courts of appeals have interpreted DeShaney in a similar manner. E.g., Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 389, 126 L.Ed.2d 337 (1993); Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir.1993); L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2442, 124 L.Ed.2d 660 (1993); Freeman v. Ferguson, 911 F.2d 52, 54-55 (8th Cir.1990); Horton v. Flenory, 889 F.2d 454, 457 (3d Cir.1989); Cornelius v. Town of Highland Lake, 880 F.2d 348, 354 (11th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990); see Graham v. Independent School Dist. No. I-89, 22 F.3d 991, 994-95 (10th Cir.1994); Salas v. Carpenter, 980 F.2d 299, 309 (5th Cir.1992). In each of these cases, the court recognized that DeShaney did not preclude the imposition of a duty to protect where the State, through the affirmative acts of its agents, creates or enhances the danger a victim faces.

In the case at bar, Pinder alleges that Officer Johnson enhanced the vulnerability of her and her children to Pittman by providing assurances that Pittman would be kept in custody until morning, and then, rather than charging Pittman with assault and breaking and entering a dwelling, charging him only with trespassing and destruction of property, minor offenses for which he would be unlikely to be kept in custody. Pinder, in reliance upon Officer Johnson's statements, changed her course of conduct and returned to work, leaving her children at home, alone and vulnerable to Pittman's final act. In view of these allegations and our interpretation of DeShaney, we find that Pinder has stated a cognizable constitutional claim against Officer Johnson.

III.

Having established that Pinder has stated a cognizable...