                                     PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-1733


ROBERT SANCHEZ TURNER,

                   Plaintiff - Appellant,

             v.

AL THOMAS, JR., in his individual capacity and his official capacity as Chief of
Charlottesville Police Department; CITY OF CHARLOTTESVILLE, VIRGINIA;
W. STEVEN FLAHERTY, in his individual capacity,

                   Defendants - Appellees.



Appeal from the United States District Court for the Western District of Virginia, at
Charlottesville. Norman K. Moon, Senior, District Judge. (3:17-cv-00064-NKM-JCH)


Argued: March 21, 2019                                         Decided: July 19, 2019


Before FLOYD, HARRIS, and RICHARDSON, Circuit Judges.


Affirmed by published opinion.    Judge Floyd wrote the opinion in which Judge Harris
and Judge Richardson joined.


ARGUED: Dallas S. LePierre, NEXUS DERECHOS HUMANOS ATTORNEYS,
INC., Atlanta, Georgia, for Appellant. Michelle Shane Kallen, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; David Patrick Corrigan,
HARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen, Virginia; Richard
Hustis Milnor, ZUNKA, MILNOR & CARTER LTD, Charlottesville, Virginia, for
Appellees. ON BRIEF: Mario B. Williams, NEXUS DERECHOS HUMANOS
ATTORNEYS, INC., Atlanta, Georgia, for Appellants. Mark R. Herring, Attorney
General, Samuel T. Towell, Deputy Attorney General, Erin McNeill, Assistant Attorney
General, Toby J. Heytens, Solicitor General, Matthew R. McGuire, Principal Deputy
Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee W. Steven Flaherty. Jeremy D. Capps, Douglas E.
Pittman, HARMAN CLAYTOR CORRIGAN & WELLMAN, P.C., Glen Allen,
Virginia, for Appellee Al Thomas, Jr.




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FLOYD, Circuit Judge:

       Appellant Robert Sanchez Turner was attacked by protesters at the “Unite the

Right” rally on August 12, 2017 in Charlottesville, Virginia. Turner claims that, pursuant

to a stand-down order under which police officers at the rally were instructed not to

intervene in violence among protesters, officers watched his attack and did nothing to

help. Turner brought suit against Al Thomas Jr., former Chief of the Charlottesville

Police Department; W. Stephen Flaherty, Virginia State Police Superintendent; and the

City of Charlottesville. The district court concluded that Thomas and Flaherty were

entitled to qualified immunity and dismissed Turner’s complaint for failure to state a

claim. We agree with the district court that the facts alleged in Turner’s complaint do not

amount to a violation of clearly established law. Accordingly, we affirm.


                                            I.

       Because Turner’s claim was dismissed on the pleadings, we take as true all well-

pleaded allegations in the complaint. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com,

Inc., 591 F.3d 250, 253 (4th Cir. 2009). On August 12, 2017, the “Unite the Right” rally

was held in Charlottesville’s Emancipation Park to protest the City’s decision to change

the Park’s name from “Lee Park” and remove a Confederate monument from its grounds.

Jason Kessler, leader of the far-right advocacy group “Unity & Security for America,”

led efforts to organize the rally.

       The City granted Kessler a permit to hold the rally and informed him that heavy

police presence and security would be provided. But less than a week before the event,



                                            3
citing traffic and safety concerns, the City revoked the permit. Kessler challenged the

revocation in the Western District of Virginia on First and Fourteenth Amendment

grounds, and the district court reinstated the permit. According to Turner, Thomas and

Flaherty were “enraged” by the decision to reinstate the permit. J.A. 24. In response,

they enacted a stand-down order under which officers on duty at the rally would “refrain

from intervening in any violent confrontations between white supremacists and counter-

protesters unless given a direct command to do so.” J.A. 25. Turner alleges that officers

told protesters at the rally about the stand-down order. For example, when demonstrators

asked if police planned to respond to violent attacks, at least one officer responded by

saying “that’s not my job.” J.A. 26.

      Turner attended the rally as a counter-protester.         He alleges that while he

demonstrated    peacefully   on    the   sidewalk    adjacent    to   the   Park,   “KKK

members/sympathizers” exited the Park and began to engage with counter-protesters.

J.A. 27–28. According to Turner, the “KKK members/sympathizers” attacked him for

more than thirty seconds, spraying his eyes with mace, beating him with a stick, and

throwing bottles of urine at him, all while police looked on and did nothing. J.A. 26.

Turner alleges that despite a warning from the Department of Homeland Security that the

rally could turn violent, police did not wear riot gear to patrol the rally. Approximately

five hours after the rally began, officers changed into riot gear and began to clear the

Park, though at that point Turner had already been attacked.

      Turner brought suit under 42 U.S.C. § 1983. In relevant part, Turner sought to

hold Thomas and Flaherty directly liable for violation of his substantive due process


                                            4
rights based on the police department’s failure to protect him from violent protesters at

the rally. 1



                                              II.

        We review de novo a dismissal under Federal Rule of Civil Procedure 12(b)(6),

accepting all well-pleaded facts as true and drawing all reasonable inferences in favor of

the plaintiff. See Nemet Chevrolet, 591 F.3d at 253. However, we “need not accept legal

conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or

arguments.” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (internal

quotation marks omitted).       The complaint must provide “sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).




1
  Additionally, Turner’s complaint sought to hold Thomas and Flaherty liable under a
theory of supervisory liability and the City of Charlottesville liable under Monell v.
Department of Social Services of the City of New York, 436 U.S. 658 (1978). We need
not address the supervisory-liability claim separately, because Turner has not argued that
the qualified-immunity analysis should proceed any differently for that claim. We also
find that Turner has waived his claim against the City of Charlottesville. At a hearing
before the district court, Turner said he had “dropped” this claim. J.A. 178. Then, in his
opening brief on appeal, Turner appeared to focus entirely on the qualified-immunity
issue, which does not apply to the City. In response, the City argued that this claim had
been waived; Turner declined to address the waiver argument in his reply, which did not
even mention his claim against City. It was not until oral argument that Turner sought to
preserve this claim. We conclude that Turner’s inattention to this claim on appeal,
combined with his express statement to the district court, effectively waived it.
Therefore, we do not address it.


                                              5
                                                  III.

       Before us is Turner’s claim that Thomas and Flaherty violated his substantive due

process rights by ordering officers at the rally not to intervene in violence among

protesters. In general, a defendant’s mere failure to act does not give rise to liability for a

due process violation.     See DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189, 196 (1989). Turner seeks to avoid that rule by invoking the state-

created danger exception, under which state actors may be liable for failing to protect

injured parties from dangers which the state actors either created or enhanced. See

Pinder v. Johnson, 54 F.3d 1169, 1176 (4th Cir. 1995). But it was not clearly established

at the time of the rally that failing to intervene in violence among the protesters would

violate any particular protester’s due process rights. Accordingly, we agree with the

district court that Thomas and Flaherty are entitled to qualified immunity, and we affirm

the dismissal of Turner’s complaint.

       Qualified immunity shields state actors from liability under § 1983 liability when

their “conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Wiley v. Doory, 14 F.3d 993, 995 (4th

Cir. 1994) (quoting Harlow v. Fitzgerald, 457 US. 800, 818 (1982)). To determine

whether a defendant is entitled to qualified immunity, we ask two questions: (1) Has the

plaintiff alleged a violation of a federal right?        (2) Was the right at issue clearly

established at the time of the alleged violation? Pearson v. Callahan, 555 U.S. 223, 236

(2009). We may decide, on a case-by-case basis, which question to answer first. Id. If

the answer to either question is “no,” then the defendant is entitled to qualified immunity.


                                              6
       In this case, we begin by asking whether the right asserted by Turner was clearly

established at the time of its alleged violation. To determine whether a right was clearly

established, we typically ask whether, when the defendant violated the right, there existed

either controlling authority—such as a published opinion of this Court—or a “robust

consensus of persuasive authority,” Booker v. S.C. Dept of Corr., 855 F.3d 533, 544 (4th

Cir. 2017) (internal quotation marks omitted), that would have given the defendants “fair

warning that their conduct was wrongful.” Williamson v. Stirling, 912 F.3d 154, 187 (4th

Cir. 2018) (internal quotation marks omitted). Thus, we must determine whether, at the

time of the rally, there existed legal authority giving Thomas and Flaherty fair warning

that ordering officers not to intervene in violence among protesters would implicate the

state-created danger doctrine and amount to a violation of protesters’ due process rights.

       As our starting point, we turn to DeShaney v. Winnebago County, 489 U.S. at 196.

There, the Supreme Court stated that because the Fourteenth Amendment was intended to

protect “the people from the State, not to ensure that the State protected them from each

other . . . [a]s a general matter . . . a State’s failure to protect an individual against private

violence simply does not constitute a violation of the Due Process Clause.” Id. at 196–

97. Given that “the Due Process Clause does not require the State to provide its citizens

with particular protective services,” wrote the Court, “it follows that the State cannot be

held liable for injuries that could have been averted had it chosen to provide them.” Id. at

196–97.

       There are two exceptions to the rule laid out in DeShaney. The first arises when

the individual and the state have a “special relationship,” such as a custodial relationship,


                                                7
that gives rise to an affirmative duty to protect. See id. at 199–200 (“It is the State’s

affirmative act of restraining the individual’s freedom to act on his own behalf . . . which

is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its

failure to act to protect his liberty interests against harms inflicted by other means.”).

Turner does not claim that the “special relationship” exception applies in this case.

       The second, which DeShaney implicitly recognized and which Turner relies upon

here, is known as the state-created danger doctrine. See id. at 201 (“While the State may

have been aware of the dangers that [the child] faced . . . it played no part in their

creation, nor did it do anything to render him any more vulnerable to them.”). Under this

doctrine, a state actor may be held liable for harm resulting from “affirmative actions”

that created or enhanced the dangerous conditions that produced the plaintiff’s injury.

See Pinder, 54 F.3d at 1176. “[T]o establish § 1983 liability based on a state-created

danger theory, a plaintiff must show that the state actor created or increased the risk of

private danger, and did so directly through affirmative acts, not merely through inaction

or omissions.” Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015). “Put another way, ‘state

actors may not disclaim liability when they themselves throw others to the lions,’ but that

does not ‘entitle persons who rely on promises of aid to some greater degree of protection

from lions at large.’” Id. (quoting Pinder, 54 F.3d at 1177).

       As we recognized in Pinder, the state-created danger doctrine is narrowly drawn,

and the bar for what constitutes an “affirmative act” is high. 54 F.3d at 1175. In that

case, plaintiff Pinder called the police on her former boyfriend, Pittman, who had broken

into her home, assaulted her, and threatened to kill her and her three children. Id. at


                                             8
1172. After Pittman was arrested, Pinder asked the investigating officer if it would be

safe for her to return to work that evening and leave her children at home. Id. The

officer assured her that Pittman would be detained overnight on assault charges and could

not be released until the county commissioner became available for a hearing the

following morning. Id. However, instead of the assault charge, the officer filed lesser

charges against Pittman, and he was released from custody that night. Id. Pittman then

returned to Pinder’s home after she left for work and set fire to it, killing her three

children who were sleeping inside. Id.

       Pinder brought a due process claim against the officer who had assured her that

Pittman would be detained overnight, seeking to invoke the state-created danger doctrine.

Id. at 1175. We rejected this application of the doctrine, however, holding that the officer

did not create the danger that resulted in the children’s death, but “simply failed to

provide adequate protection from it.” Id. “It cannot be,” we noted, “that the state

‘commits an affirmative act’ or ‘creates a danger’ every time it does anything that makes

injury at the hands of a third party more likely.” Id. (internal quotation marks omitted).

We acknowledged that “[a]t some point on the spectrum between action and inaction, the

state’s conduct may implicate it in the harm caused,” but we concluded that “no such

point [was] reached” in Pinder’s case. Id.; see also id. at 1176 n.* (observing that

although “inaction can often be artfully recharacterized as ‘action,’ courts should resist

the temptation to inject this alternate framework into omission cases by stretching the

concept of ‘affirmative acts’ beyond the context of immediate interactions between the

officer and the [victim]”).


                                             9
       Following Pinder’s narrow reading of the state-created danger doctrine, we have

never issued a published opinion recognizing a successful state-created danger claim.

Rather, our precedent on the issue has emphasized the doctrine’s limited reach and the

exactingness of the affirmative-conduct standard. For instance, in Doe v. Rosa, we held

that the state-created danger doctrine did not apply when a college president, Rosa, failed

to intervene after learning that a counselor at the college’s summer camp sexually abused

campers for several years. 795 F.3d at 431. One of the counselor’s victims and the

victim’s family (the “Does”) brought suit, claiming that Rosa not only failed to report the

abuse, but also actively took steps to conceal it. Id. For example, the Does alleged that

Rosa omitted abuse allegations from relevant records and purposefully obfuscated the

nature of the Does’ complaint to college officials. Id. at 434–35. We held that the Does’

claims did not describe the “affirmative actions” necessary to implicate the state-created

danger doctrine. Id. at 441 (“No amount of semantics can disguise the fact that the real

‘affirmative act’ here was committed by [the counselor] not by Rosa.”). We noted that

the Does’ claims “lack[ed] the nexus necessary for any of Rosa’s alleged conduct to be

‘affirmative acts’” that created or enhanced the danger to the Does, specifically, because

Rosa “did not meet or speak with the Does, and by all accounts, was not even aware

[they] existed.” Id.

       Against this background, we conclude that it was not clearly established at the

time of the rally that ordering officers not to intervene in private violence between

protesters was an affirmative act within the meaning of the state-created danger doctrine.

Our precedent sets an exactingly high bar for what constitutes affirmative conduct


                                            10
sufficient to invoke the state-created danger doctrine. Turner has put forth no facts

suggesting that a stand-down order crosses the line from inaction to action when the state

conduct in Pinder and Doe did not. Acting under Pinder’s teaching that state actors may

not be held liable for “st[anding] by and d[oing] nothing when suspicious circumstances

dictated a more active role for them,” Thomas and Flaherty could have reasonably

concluded that a stand-down order violated no constitutional right. 54 F.3d at 1175.

Accordingly, Turner has not alleged a violation of clearly established law, and Thomas

and Flaherty are entitled to qualified immunity. 2



                                                  IV.

       For the foregoing reasons, the judgment of the district court is

                                                                             AFFIRMED.




2
  Turner argues that in assessing the merits of his substantive due process claim, we
should ask whether Thomas and Flaherty acted with deliberate indifference to Turner’s
safety. But as we have stated, “apart from situations involving custody, the Supreme
Court has never applied a ‘deliberate indifference’ standard merely because the State
created a danger that resulted in harm.” Slaughter v. Mayor & City Council of Baltimore,
682 F.3d 317, 321 (4th Cir. 2013); see also Waybright, 528 F.3d 199, 205 (4th Cir. 2008)
(“For a due process challenge to executive action to succeed, the general rule is that the
action must have been ‘intended to injure in some way unjustifiable by the government
interest.’”). Because there was no clearly established law imposing liability based on
deliberate indifference in this context, qualified immunity shields Thomas and Flaherty
from such liability.



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