Decided: June 7, 2012
Wilson, a recruit for the Fire Department, died during a “live burn” training exercise. Officials created debris, stuffed walls with highly flammable materials, and lit fires at multiple locations in a building. Wilson and her team encountered severe fire conditions in the building and realized their lives were in danger. They began to evacuate through a window, but Wilson had difficulty getting through the window and fell back into the building. The team got Wilson through the window, but she was unconscious. She was pronounced dead and an autopsy confirmed thermal injury and asphyxia as the causes of death.
Wilson’s survivors and estate commenced this action pursuant to 42 U.S.C. § 1983, alleging Wilson’s death was avoidable with adequate preparations and the Fire Department created unduly dangerous conditions. Count I asserted that the Fire Department’s conduct “shocks the conscience and was either intentionally reckless, grossly negligent, and/or deliberately indifferent towards Ms. Wilson’s … life and liberty.” Other counts alleged violations of the Maryland Constitution and other state law duties. The district court dismissed Count I for failure to state a claim under the Fourteenth Amendment, and it dismissed the remaining counts without prejudice, to be resolved in state court. The plaintiffs appealed.
The plaintiffs argued the facts were sufficient to state a substantive due process violation because it alleged the Fire Department’s conduct was deliberately indifferent to Wilson’s life and safety. The plaintiffs conceded that the Fire Department did not intend to cause harm, but claim case law recognizes that a showing of deliberate indifference can be sufficient to establish a violation when the State created the danger or was in a special relationship with the plaintiff, such as having custody over her. In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 201 (1989), the Court refused to hold a department of social services liable for not protecting a child from an abusive father and explained that “while the State may have been aware of the dangers that [a] child 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.”
Defendants contend that the government’s conduct can only violate the substantive due process guarantee of the Constitution if the government’s conduct was “intended to injure in some way unjustifiable by any government interest.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Because the facts do not suggest the Fire Department officials were motivated by any intent to injure Wilson, the defendants argue that the complaint fails to state a claim under 42 U.S.C. § 1983 on which relief can be granted.
Due process protects the individual against arbitrary action of the government, including conduct intended to injure in some way unjustifiable by the government — that which shocks the conscience. Deliberate indifference may give rise to a violation where the government is required to take care of those who have already been deprived of their liberty and are in government custody, but this lower standard does not apply to persons in an employment relationship with the government. Collins v. City of Harker Heights, 503 U.S. 11, 127 (1992). In Collins, the estate of an employee who died in the course of employment sued the city, alleging various wrongs committed by the city. The Court held that, even though the alleged facts might have shown deliberate indifference, in the context of voluntary employment, it was not arbitrary or conscience shocking, therefore there was no substantive due process violation. As in Collins, the allegations in this case might be consistent with deliberate indifference, but because of the voluntary employment context, the plaintiffs did not allege arbitrary or conscience-shocking conduct because they failed to show that the Fire Department intended to harm Wilson.
In Waybright v. Frederick County, 528 F.3d 199, 208–09 (4th Cir. 2008), the Fourth Circuit held that a fire department recruit who died during a training exercise could not, without alleging intent to harm, maintain an action for a substantive due process violation. The recruit was not in government custody, but could walk away from the job and the exercise at any time. Id. at 207. Due process does not impose a duty to provide government employees with a safe workplace or warn them against risks of harm. Id. In this case, the Fire Department created a danger, but a due process violation does not necessarily follow. If the court recognized government liability in this case because the government created a dangerous condition, the practical consequences would be immense. The Fire Department’s constitutional liability must turn on whether it intended to harm new recruits. Because there are no facts supporting this conclusion, the district court properly dismissed Count I of the complaint. The plaintiffs’ state law claims can be litigated in state court. The Fourth Circuit affirmed the district court’s judgment.
Circuit Judge Wynn concurred in the result, agreeing that the facts were insufficient to state a claim for a violation of Due Process. Wynn believed Collins, 503 U.S. at 130, which held there is no duty to provide certain minimal levels of safety and security in the workplace, resolves this case. In Collins, the Supreme Court emphasized that § 1983 was not intended to turn every tort claim into a constitutional violation or to serve as a “guarantee against incorrect or ill advised personnel decisions.” Collins, 503 U.S. at 128–29 (quoting Bishop v. Wood, 426 U.S. 341, 350 (1976)). Subsequently, the Court clarified what conduct is sufficiently “conscience shocking” to state a claim under § 1983, stating that “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” Lewis, 523 U.S. at 849 (citing Daniels v. Williams, 474 U.S. 327, 328 (1986)). Under some circumstance, deliberate indifference can shock the conference, but because it is typically a close decision, judges have discretion to engage in an “exact analysis of circumstances” rather than mechanical application of the rules. Collins and Lewis underscore the Supreme Court’s view that, at least in some cases, deliberate indifference can provide grounds for a § 1983 claim. The majority opinion fails to distinguish the potentially meritorious claims identified by the Supreme Court in Collins from those requiring intent to injure.
It is unnecessary to engage in the type of judicial discretion prescribed by Lewis in this case, because the facts are similar to the facts in Collins and Waybright. As a result the issue presented should be resolved on narrow grounds. The petitioner’s claim fails because it attempts to transform a negligence claim into a violation of Due Process, which the Court foreclosed in Collins and reaffirmed in Lewis. The problem with petitioner’s complaint is not that it fails to allege an intent to harm, but rather that the factual allegations do not shock the conscience in a constitutional sense. In affirming the district court’s judgment, the Fourth Circuit should recognize that government employees are not categorically excluded from claiming deliberate indifference as a basis for Due Process claims.
-Michelle Theret