From Judge Don Willett’s opinion yesterday in Fisher v. Moore, joined by Chief Judge Priscilla Richman and Judge Jacques Wiener:
A disabled public-school student was sexually assaulted by another student with known violent tendencies. [The assault involved the other student forcing the disabled student to perform oral sex on him. -EV] Despite knowing of this attack, the victim’s teachers let both her and her aggressor wander the school unsupervised, and she was again assaulted by the very same student. [The opinion doesn’t indicate the details of this second sexual assault. -EV] The victim’s mother sued various school officials under 42 U.S.C. § 1983, alleging liability under the so-called “state-created danger” doctrine, an exception to the general rule that government has no duty under the Due Process Clause to protect people from privately inflicted harms. The school officials sought dismissal on qualified-immunity grounds, arguing that the state-created danger doctrine was not clearly established in this circuit when the underlying events occurred. The district court denied their motion.
But the school officials are right. This circuit has never adopted a state-created danger exception to the sweeping “no duty to protect” rule. And a never-established right cannot be a clearly established one. Nor do we think it prudent to adopt a never-recognized theory of § 1983 liability in the absence of rigorous briefing that grapples painstakingly with how such a cause of action, however widely accepted in other circuits, works in terms of its practical contours and application, details on which our sister circuits disagree. Also, beyond the lack of thorough briefing, we are reluctant to expand substantive due process doctrine given the Supreme Court’s recent forceful pronouncements signaling unease with implied rights not deeply rooted in our Nation’s history and tradition. This is especially so here, as our unbroken precedent counsels us to rule instead on a narrower ground….
The Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall … deprive any person of life, liberty, or property, without due process of law.” “The Due Process Clause … does not, as a general matter, require the government to protect its citizens from the acts of private actors.” We have recognized just one exception to this general rule: “when [a] ‘special relationship’ between the individual and the state imposes upon the state a constitutional duty to protect that individual from known threats of harm by private actors.” However, “a number of our sister circuits have adopted a ‘state-created danger’ exception to the general rule, under which a state actor who knowingly places a citizen in danger may be accountable for the foreseeable injuries that result.” M.F. brings her due process claim against Appellants only under the second exception, the state-created danger theory.
The problem for M.F. is that “the Fifth Circuit has never recognized th[e] ‘state-created-danger’ exception.” In our published, and thus binding, caselaw, “[w]e have repeatedly declined to recognize the state-created danger doctrine.” For this reason, M.F. “ha[s] not demonstrated a clearly established substantive due process right on the facts [she] allege[s].” The district court thus erred in denying qualified immunity to Appellants.
Even though we repeat today that the state-created danger doctrine is not clearly established in our circuit, to our knowledge we have not categorically ruled out the doctrine either; we have merely declined to adopt this particular theory of liability. To be sure, we have suggested what elements any such theory would include—should we ever adopt it, of course. For example, on one occasion, we indicated that a state-created danger theory would require “a plaintiff [to] show  the defendants used their authority to create a dangerous environment for the plaintiff and  that the defendants acted with deliberate indifference to the plight of the plaintiff.” We also stated that the defendant “‘must have used their authority to create an opportunity that would not otherwise have existed for the third party’s crime to occur.'” Nonetheless, as we have held time and again, the right to be free from state-created danger is not clearly established in this circuit.
We acknowledge that, as of November 2019, a majority of our sister circuits had adopted the state-created danger theory of liability in one form or another. And, as M.F. points out, sometimes a “robust ‘consensus of persuasive authority'” may suffice to clearly establish a constitutional right. But even putting aside our binding precedent that the doctrine is not clearly established in our circuit, our cases foreclose this specific line of reasoning as well. As we have held, “the mere fact that a large number of courts had recognized the existence of a right to be free from state-created danger in some circumstances … is insufficient to clearly establish” the theory of liability in our circuit. “We reasoned that, despite widespread acceptance of the [state-created danger] doctrine [in other circuits], the circuits were not unanimous in [the doctrine’s] ‘contours’ or its application.” We therefore reject M.F.’s argument that out-of-circuit precedent clearly established her substantive due process right to be free from state-created danger.
Finally, M.F. suggests that “[t]his is the case the Court has been waiting for,” and she invites us to—finally—adopt the state-created danger theory of § 1983 liability. We decline to do so.
First, M.F. has not briefed the issue or explained how the doctrine would work in this case. She asserts only that her appeal “presents the right set of facts which, if believed, would trigger the application of the state-created danger theory.” We think it “especially unwise” to fashion a new cause of action without the benefit of rigorous briefing. We are particularly hesitant to expand the substantive due process doctrine under these circumstances—not merely because we have “repeatedly” declined to do so on this exact issue, but also because the Supreme Court has expressed a strong reluctance to do so more generally in this area of constitutional law. When adopting the state-created danger doctrine, our sister circuits tend to reason along the lines of (1) the Supreme Court left open the question in DeShaney, and (2) other courts have adopted the doctrine. More recently, however, the Court has reiterated—forcefully—that rights protected by substantive due process “must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'” Without briefing on how the state-created danger doctrine meets the reinvigorated test, we are content to leave the question of adopting the doctrine for another day.
Second, in light of caselaw from some of our sister circuits which have adopted the doctrine, we have some doubts as to whether the facts alleged in the complaint here state a plausible claim against school officials for student-on-student violence. Ordinarily, we would expect a party encouraging us to adopt a new cause of action to distinguish adverse authorities. Given these uncertainties and the parties’ decision not to brief the subject, “[w]e decline to use this … opportunity to adopt the state-created danger theory in this case because the allegations would not support such a theory.”
Our holding today should not be misunderstood to say M.F.—or any future plaintiff—lacks any federal redress whatsoever. To the contrary, we have recognized that Title IX provides a cause of action for “student-on-student harassment” under certain circumstances. We observe that M.F. asserted a Title IX claim in her complaint, and that proceedings on that claim have been stayed pending this interlocutory appeal. We express no view on the merits of that claim on remand and mention it here only to support our conclusion that expanding substantive due process in this case would not be appropriate in light of our settled precedent….
The facts giving rise to this lawsuit are unquestionably horrific. And Title IX may well provide M.F. a remedy. But § 1983 does not, as the Supreme Court’s qualified-immunity doctrine “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” We are bound by our precedent, which has repeatedly declined to adopt the state-created danger doctrine. And a right never established cannot be one clearly established. As we recently put it, “A claim that we have expressly not recognized is the antithesis of a clearly established one.”
Judge Jacques Wiener concurred, adding:
I am convinced that it is well past time for this circuit to be dragged screaming into the 21st century by joining all of the other circuits that have now recognized the state-created danger cause of action. I acknowledge that we can only do so by taking this case en banc.
The extreme and uncontested facts of this case present an excellent opportunity for us to do so. As a senior judge, I could participate on the three-judge panel that heard and is deciding this case. And as a senior judge, I shall participate as a voting member of the en banc court if this case is re-heard en banc. But, as a senior judge, I cannot call for an en banc poll or even vote in such a poll if one is called for by an active judge of this court. I therefore write this dissent in the hope that one of my active colleagues will call for an en banc poll in an effort to have this circuit join the other nine that have previously recognized the state-created danger cause of action….