       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2       Cartwright v. City of Marine City, et al. No. 02-1728
   ELECTRONIC CITATION: 2003 FED App. 0237P (6th Cir.)
                File Name: 03a0237p.06                       Before: SUHRHEINRICH and COLE, Circuit Judges;
                                                                         CARR, District Judge.*
UNITED STATES COURT OF APPEALS                                                  _________________
              FOR THE SIXTH CIRCUIT                                                   COUNSEL
                _________________
                                                         ARGUED: Julie O’Connor, O’CONNOR, DeGRAZIA &
                                                         TAMM, Bloomfield Hills, Michigan, for Appellant.
DINNELL C. CARTWRIGHT , as        X                      Wolfgang Mueller, OLSMAN, MUELLER & JAMES,
                                                         Berkley, Michigan, for Appellee. ON BRIEF: Julie
Personal Representative of the -                         O’Connor, O’CONNOR, DeGRAZIA & TAMM, Bloomfield
Estate of TERRY L.                 -
                                   -  No. 02-1728        Hills, Michigan, for Appellant.  Wolfgang Mueller,
CARTWRIGHT , Deceased,             -                     OLSMAN, MUELLER & JAMES, Berkley, Michigan, for
            Plaintiff-Appellee, >                        Appellee.
                                   ,
                                   -                                            _________________
           v.                      -
                                   -                                                OPINION
CITY OF MARINE CITY; JAMES -                                                    _________________
VANDERMEULEN and                   -
                                   -                       JAMES G. CARR, District Judge. Dinnell C. Cartwright,
TIMOTHY ROCK , Marine City
                                   -                     as personal representative of the estate of the late Terry L.
Police Officers,                   -                     Cartwright, sued the City of Marine City, Michigan (“City”),
       Defendants-Appellants. -                          and two of its police officers for failing to prevent the death
                                   -                     of Terry Cartwright, a pedestrian who was struck and killed
                                  N                      by a truck. The district court denied the defendants’ motion
      Appeal from the United States District Court       for summary judgment and claim of qualified immunity. We
     for the Eastern District of Michigan at Detroit.    hold that the plaintiff has not made out a constitutional
   No. 00-73730—Julian A. Cook, Jr., District Judge.     violation against the City or the officers. We therefore
                                                         REVERSE the district court’s denial of qualified immunity,
                 Argued: May 7, 2003                     and REMAND the case for dismissal.

           Decided and Filed: July 21, 2003



                                                             *
                                                               The Ho norable Ja mes G . Carr, United States District Judge for the
                                                         No rthern D istrict of O hio, sitting by designation.

                           1
No. 02-1728 Cartwright v. City of Marine City, et al.         3    4     Cartwright v. City of Marine City, et al. No. 02-1728

                    I.   BACKGROUND                                   Approximately one hour later, at about 2:25 a.m.,
                                                                   Cartwright was run over by a truck and killed as he lay in the
  The tragic facts of this case are not in dispute. On             middle of 26 Mile Road, about two miles from the store. The
October 27, 1998, at around midnight, Terry Cartwright was         autopsy report determined that Cartwright’s blood alcohol
walking on the foggy, unlit shoulder of 26 Mile Road in St.        level at the time of his death was .27 percent. A forensic
Clair County, Michigan. Defendants James Vandermeulen              pathologist determined that Cartwright’s blood alcohol level
and Timothy Rock, police officers for Marine City, Michigan,       at about 12:15 a.m. would have been in excess of .30 percent.
saw him on the side of the road while they were riding in their    At that level, Cartwright’s speech would have been slurred,
patrol car to the Speedy-Q convenience store for a prisoner        his eyes would have been red, and he would have had trouble
pickup. The officers stopped and asked Cartwright where he         standing.
was going. Cartwright said he was traveling to Yale,
Michigan. The officers offered him a ride to Port Huron,              Cartwright’s wife, Dinnell Cartwright, representing his
Michigan, and Cartwright accepted. He got into the back of         estate, initiated this action against the City of Marine City,
the patrol car, and the three drove for eight or nine minutes to   Rock, and Vandermeulen. She alleges that the police officers
reach the store.                                                   violated Terry Cartwright’s substantive due process rights
                                                                   under 42 U.S.C. § 1983, and that the City is liable for failure
  During the trip, the officers asked Cartwright for               to train and supervise its police officers. Plaintiff also asserted
identification. Cartwright produced an identification card.        a claim of gross negligence and a violation of Mich. Comp.
The officers noticed that Cartwright smelled of alcohol, but       Laws § 333.6501 (2003). The district court denied summary
did not notice other signs of intoxication, such as bloodshot      judgment on the constitutional claim, and also denied
eyes or slurred speech.                                            summary judgment on the basis of qualified immunity. The
                                                                   defendants appeal.
  At the convenience store, the officers took custody of their
prisoner. The officers then told Cartwright that they could not                           II.   ANALYSIS
put the prisoner in the back seat with Cartwright unless
Cartwright consented to a pat-down search. Cartwright                                     A.    Jurisdiction
refused to allow the pat-down search, and told the officers
that he did not want a ride. The officers left Cartwright at the     The district court had jurisdiction under 28 U.S.C § 1331.
store, and drove away.                                             This Court has jurisdiction over the defendants’ appeal of the
                                                                   district court’s denial of qualified immunity pursuant to 28
   According to store clerk John Beaufait, Cartwright entered      U.S.C. § 1291 and Mitchell v. Forsyth, 472 U.S. 511, 530
the store sometime between midnight and 12:30 a.m., bought         (1985) (holding that a district court’s denial of a claim of
a soft drink, and left. Cartwright returned sometime between       qualified immunity, to the extent that it turns on an issue of
1 a.m. and 1:30 a.m. and tried to buy a beer. Beaufait refused     law, is appealable under 28 U.S.C. § 1291, though not a final
to sell him the beer because he looked haggard and confused,       judgment).
and slurred his speech. Beaufait gave Cartwright a cup of
coffee, and Cartwright stayed in the store for about twenty or       The district court denied the defendants’ motion for
thirty minutes, drinking the coffee and talking to Beaufait.       summary judgment based on its conclusion that there were
Cartwright then left the store.                                    genuine issues of material fact for trial, never mentioning
No. 02-1728 Cartwright v. City of Marine City, et al.          5    6    Cartwright v. City of Marine City, et al. No. 02-1728

qualified immunity. The order still is appealable, however,         plaintiff has the burden of establishing that a defendant is not
because “[e]ven when the district court denies summary              entitled to qualified immunity. Rich v. City of Mayfield Hts.,
judgment without stating its reasons for doing so, a court of       955 F.2d 1092, 1095 (6th Cir. 1992).
appeals may decide the legal question underlying the
qualified immunity defense.” Christophel v. Kukulinsky, 61             The qualified-immunity inquiry has two principal parts.
F.3d 479, 485 (6th Cir. 1995) (citing Johnson v. Jones, 515         First, the court must determine “whether the plaintiff has
U.S. 304, 318-19 (1995); see also Klein v. Long, 275 F.3d           shown a violation of a constitutionally protected right.” Davis
544, 549 (6th Cir. 2001) (quoting Shehee v. Luttrell, 199 F.3d      v. Brady, 143 F.3d 1021, 1024 (6th Cir. 1998). Then, the
295, 299 (6th cir. 1999) (noting that as long as “a defendant       court must discern whether the right is so “clearly
seeking qualified immunity [is] willing to concede to the facts     established” that a “reasonable official would understand that
as alleged by the plaintiff and discuss only the legal issues       what he is doing violates that right.” Anderson v. Creighton,
raised by the case” the defendant is entitled to an                 483 U.S. 635, 640 (1987). We start with the question of
interlocutory appeal to show that “the undisputed facts or the      whether the officers violated Terry Cartwright’s due-process
evidence viewed in the light most favorable to the plaintiff        rights at all. Because there was no violation, we do not reach
fail to establish a prima facie violation of clear constitutional   the clearly-established prong.
law”).
                                                                                           D.   Section 1983
                  B.   Standard of Review
                                                                      Plaintiff seeks to hold the government officials responsible,
  We review de novo a district court’s denial of qualified          under § 1983, for the act of private violence that Cartwright
immunity. Klein, 275 F.3d at 550 (citation omitted).                suffered when he was struck and killed by a motorist. To
                                                                    succeed on a § 1983 claim, plaintiff must show defendants:
                  C.   Qualified Immunity                           1) acted under color of state law; and 2) deprived plaintiff’s
                                                                    decedent of his rights under the United States Constitution.
   The plaintiff asserts that the defendant officers and the City   Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 452
violated Terry Cartwright’s substantive due process rights.         (6th Cir. 2002) (citations omitted).
Because a constitutional violation against a city requires, but
is not made out by, an antecedent violation on the part of its                        1.    Color of State Law
officials, see Bukowski v. City of Akron, 326 F.3d 702, 708
(6th Cir. 2003), we start with the roles played by defendants         Defendants do not contest that they were acting under state
Rock and Vandermeulen.                                              law.

  As governmental officials acting within the scope of their                         2.    Deprivation of Rights
duty, Rock and Vandermeulen can claim qualified immunity.
Id. Qualified immunity is an affirmative defense shielding            Plaintiff alleges that defendants violated Cartwright’s
governmental officials from liability as long as their conduct      constitutional right to substantive due process by failing to
does “not violate clearly established statutory or                  take him into custody. In DeShaney v. Winnebago County
constitutional rights of which a reasonable person would have       Department of Social Services, 489 U.S. 189, 197 (1989), the
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The         Supreme Court noted that “a State’s failure to protect an
No. 02-1728 Cartwright v. City of Marine City, et al.            7    8     Cartwright v. City of Marine City, et al. No. 02-1728

individual against private violence simply does not constitute        under custodial exception to DeShaney where her argument
a violation of the Due Process Clause.” The Court in                  is that the city harmed her by failing to take her into custody).
DeShaney held that the defendant social services department
was not liable for the injuries a father inflicted on his son,          Plaintiff argues that a special relationship existed between
even though the department had a responsibility to prevent            Cartwright and the officers, because the officers had an
child abuse, and had taken temporary custody of the child             affirmative duty to help plaintiff, and because such duty was
before returning him to his father. While the Court in                created by state statute.
DeShaney denied relief, it explained that it was not
considering a case where a person suffered injuries either                        i.   Relationship Through Custody
while in state custody or because of state acts that made him
more vulnerable to private violence. Id. at 201. Instead,               The state has a duty to protect a citizen “when the State by
DeShaney involved a situation where a state’s involvement             the affirmative exercise of its power so restrains an
placed the victim “in no worse position than that in which he         individual’s liberty that it renders him unable to care for
would have been had it not acted at all.” Id.                         himself, and at the same time fails to provide for his basic
                                                                      human needs.” DeShaney, 489 U.S. at 200.
   This Court has recognized both of these exceptions to the
general rule announced in DeShaney. Sargi v. Kent City Bd.               The relationship only arises “when the state restrains an
of Educ., 70 F.3d 907, 910 (6th Cir. 1995). See Stemler v. City       individual,” Sargi, 70 F.3d at 911, and in this case, decedent
of Florence, 126 F.3d 856, 867-68 (6th Cir. 1997) (holding            was never in custody. The defendants did not suspect
that an injury suffered while in state custody may be violation       Cartwright was guilty of wrongdoing; they merely offered to
of Due Process Clause); Kallstrom v. City of Columbus, 136            give him a ride. When Cartwright refused to consent to a pat-
F.3d 1055, 1066 (6th Cir. 1998) (holding that there may be            down search, which the officers requested only when the
liability under Due Process Clause where state’s affirmative          transfer prisoner was ready to join him in the back seat of the
acts either create or increase risk of private violence). Plaintiff   patrol car, the officers and Cartwright parted company.
asserts that both of these exceptions apply to create liability
under the Due Process Clause.                                           Also, Cartwright’s inebriation was not “imposed or
                                                                      created” by the state. This Court has held that this fact alone
                  a.   Special Relationship                           requires a finding that the defendants did not owe the
                                                                      decedent an affirmative duty, because there was no special
  Plaintiff argues that her claim should be treated under the         relationship. Sargi, 70 F.3d at 911 (holding that no special
custodial exception to DeShaney. This Court recently defined          relationship existed between the state and a child who died of
“custody” as the “intentional application of physical force and       heart failure on a school bus who was not in custody, and
show of authority made with the intent of acquiring physical          whose condition was not imposed or created by the state); see
control.” Ewolski v. City of Brunswick, 287 F.3d 492, 506             also Weeks v. Portgate County Executive Offices, 235 F.3d
(6th Cir. 2002). Under that standard, the defendant officers          275, 277-78 (6th Cir. 2000) (holding that deputy sheriff had
did not take Cartwright into custody. In fact, as in Bukowski,        no special relationship with an assault victim who approached
Plaintiff’s grievance is that the officers should have taken          him, bleeding and staggering, and asked for help; though
Cartwright into custody, but did not. See Bukowski, 326 F.3d          victim subsequently was beaten to death; officer had no
at 709 n.1 (noting that the plaintiff cannot argue liability
No. 02-1728 Cartwright v. City of Marine City, et al.           9   10    Cartwright v. City of Marine City, et al. No. 02-1728

affirmative duty to take decedent into protective custody or           To show a state-created danger, plaintiff must show: 1) an
call for medical assistance).                                       affirmative act by the state which either created or increased
                                                                    the risk that the plaintiff would be exposed to an act of
            ii.   Relationship Through Statute                      violence by a third party; 2) a special danger to the plaintiff
                                                                    wherein the state’s actions placed the plaintiff specifically at
  Plaintiff argues that defendants’ alleged violation of            risk, as distinguished from a risk that affects the public at
Section 333.6501 of the Michigan Compiled Laws constitutes          large; and 3) the state knew or should have known that its
proof of a special relationship.                                    actions specifically endangered the plaintiff. Kallstrom, 136
                                                                    F.3d at 1066.
  The statute provides, in pertinent part:
                                                                                         i.   Affirmative Act
  An individual who appears to be incapacitated in a public
  place shall be taken into protective custody by a law                In Kallstrom, this court held that releasing private
  enforcement officer and taken to an approved service              information in police officers’ personnel files constituted an
  program, or to an emergency medical service, or to a              affirmative act under the state-created danger theory. 136 F.3d
  transfer facility pursuant to subsection (4) for subsequent       at 1067. By contrast, failure to act is not an affirmative act
  transportation to an approved service program or                  under the state-created danger theory. See, e.g., Sargi, 70 F.3d
  emergency medical service.                                        at 912-13 (failing to provide bus drivers with a plan for
                                                                    managing emergencies, taking seizure victim home without
MICH. COMP. LAWS § 333.6501(1) (2001).                              medical intervention, failing to maintain communication
                                                                    devices on a bus, and failing to tell the bus driver of the
   This argument fails in light of this Court’s opinion in Jones    student’s medical condition were not affirmative acts);
v. Union County, Tennessee, 296 F.3d 417, 430 (6th Cir.             Gazette, 41 F.3d at 1065 (failing to rescue kidnap victim and
2002), in which we held that a violation of a state statute does    lying about the case to the victim’s family were not
not create a liberty interest or property right under the Due       affirmative acts); Reed v. Knox County Dep’t of Human
Process Clause. Even if the defendants should have taken            Servs., 968 F. Supp. 1212, 1220-22 (S.D. Ohio 1997) (failing
decedent into custody under state law, their failure to do so       to inform family of foster child’s violent history, placing child
does not transform that error into a constitutional wrong.          in home, and failing to remove child were not affirmative
                  b.   State-Created Danger                         acts).

   Plaintiff argues, alternatively, that defendants are liable         The facts of this case indicate, at most, a failure to act; they
under the state-created danger exception, under which state         do not rise to the level of affirmative acts which created or
officials may be found to have violated the substantive due         increased the risk that the plaintiff would be exposed to an act
process rights of people not within their custody “when their       of violence by a third party. Defendant officers took plaintiff
affirmative actions directly increase the vulnerability of          from a place of great danger: the shoulder of a dark, foggy,
citizens to danger or otherwise place citizens in harm’s way.”      two-lane highway. They placed him in a place of lesser
Ewolski, 287 F.3d at 509; see also Kallstrom, 136 F.3d at           danger: the parking lot of an open convenience store, where
1066.                                                               telephones, restrooms, and food and drink were available to
                                                                    him.
No. 02-1728 Cartwright v. City of Marine City, et al.        11    12    Cartwright v. City of Marine City, et al. No. 02-1728

   Plaintiff argues that the convenience store was a place of      traveled to Akron, Ohio, to meet a man with whom she had
greater danger, because, she alleges, there was more traffic       talked online. 326 F.3d at 705. That man raped her. Id. Akron
near the store. No reasonable jury could find that the parking     police found the woman and brought her to the station, where
lot was more dangerous than the shoulder of 26 Mile Road.          she told the police and a victim’s advocate that the man was
Plaintiff also argues that the police invited Cartwright to a      her “boyfriend” and asked to be returned to his home. She did
safe place – the back seat of the patrol car – and then released   not tell anyone that he had harmed her. Id. at 706. The
him at a more dangerous place – the convenience store              officials perceived her mental disability but did not believe
parking lot. This is not the proper comparison. The question       she was incapacitated, because she had traveled by bus and
is not whether the victim was safer during the state action, but   taxi to Akron and had the ability to read and write well
whether he was safer before the state action than he was after     enough to conduct online conversations. Id. After an Akron
it. See DeShaney, 489 U.S. at 201 (“That the State once took       police legal advisor told the police that they had no legal
temporary custody of Joshua does not alter the analysis, for       authority to detain her as a juvenile or as a person with a
when it returned him to his father’s custody, it placed him in     mental illness, the police told her that she could wait for her
no worse position than that in which he would have been in         parents at the police station or at a shelter. Id. When she asked
had it not acted at all.”).                                        to be returned to the man, the police complied, returning her
                                                                   to his home, where he raped her. Id. He was convicted of his
  Plaintiff cannot show that defendant officers created or         crimes and imprisoned. Id. at 708.
increased the risk that Cartwright would be struck by a
vehicle. Defendants did not commit an affirmative act under           This court found that the police did not violate the victim’s
the state-created danger theory.                                   substantive due process rights. Id. at 711. We also noted that
                                                                   if the Akron police had decided to detain her at the police
  Because plaintiff has failed to allege facts from which a        station instead of returning her to Hall’s residence, “they may
jury could find that defendants violated Cartwright’s due          have faced another lawsuit based on charges of false
process rights, under both the theory of an affirmative duty to    imprisonment.” Id. at 711-12 (citing Adams v. Metiva, 31
protect him and the theory of a state-created danger,              F.3d 375, 383 (6th Cir. 1994) (“[I]f there is no reason to
defendants Vandermeulen and Rock, and, by extension, the           further detain a person, he cannot lawfully be detained against
City, are entitled to qualified immunity. Consequently,            his will.”)).
plaintiff’s claims under § 1983, as well as her state-law
claims, must fail.                                                   The facts of this case presented a similar Catch-22 for
                                                                   officers Vandermeulen and Rock. If they had decided to take
                E.    Unavoidable Liability                        Cartwright into protective custody under § 333.6501 of
                                                                   Michigan Compiled Laws, they, too, may have faced another
  This Court, in Bukowski, recently described the                  lawsuit based on charges of false imprisonment, on the theory
“unavoidable liability” problem confronting state officers         that Cartwright was not really “incapacitated” and the officers
when it is alleged that they should have taken someone into
protective custody. In that case, a woman and her parents
sued defendant City of Akron and its officials for failing to
take the woman, who had a mental disability, into protective
custody. The woman had disappeared from her home and had
No. 02-1728 Cartwright v. City of Marine City, et al.                        13     14    Cartwright v. City of Marine City, et al. No. 02-1728

had no legal authority to detain him under the statute.1                            liability on the part of its officials, the determination that the
Plaintiff has not proposed any other grounds on which the                           officers did not violate Cartwright’s constitutional rights
officers could have taken Cartwright into custody. Public                           resolves plaintiff’s claim against the City as well. See Scott v.
intoxication is not a civil or criminal offense in Michigan.                        Clay County, 205 F.3d 867, 879 (6th Cir. 2000) (noting that
MICH. COMP. LAWS § 333.6523(1) (2001).                                              the “conclusion that no officer-defendant had deprived the
                                                                                    plaintiff of any constitutional right a fortiori defeats the claim
   Cartwright refused to allow a pat-down search when the                           against the County as well”).
officers asked him if he would permit it. The state statute
gives officers the right to conduct a “pat-down” search of a                                            III.   CONCLUSION
person taken into protective custody. MICH. COMP. LAWS
§ 333.6501(2) (2001). If, however, the officers had done so,                          In summary, we hold that plaintiff cannot show any
Cartwright also could have claimed that the officers had no                         constitutional violation by City of Marine City police officers
legal authority to search him. Plaintiff has not proposed any                       or by the City itself. As a result, we REVERSE the district
other grounds upon which the officers could have conducted                          court’s denial of qualified immunity. We REMAND the case
a pat-down search over Cartwright’s objection before                                to the district court so that it may dismiss the case.
allowing him to ride in the back seat of the patrol car with the
prisoner.
  Defendants Vandermeulen and Rock were not aware of
facts suggesting that a substantial risk of serious harm existed,
given the knowledge they had at the time they decided to let
Cartwright go. Also, as a matter of public policy, if this Court
were to deny defendants’ claim of qualified immunity, it
would discourage police officers from trying to aid citizens in
need. An officer’s decision to stop and pick up a citizen
walking along a dark highway should not result in liability,
unless an exception to the doctrine of qualified immunity
applies.
  For these reasons, we hold that officers Vandermeulen and
Rock should have been granted qualified immunity. Because
the City can only be held liable if there is a showing of

     1
       For purposes of § 333.6501, “incapacitated” means that “an
individual, as a result of the use of alcohol, is unconscious or has his or
her mental or physical functioning so impaired that he or she either poses
an immediate and sub stantial da nger to his or her own health and safety
or is endangering the health and safety of the public.” M ICH . C O M P . L A W S
§ 33 3.61 04(3) (2001 ).
