                    United States Court of Appeals,

                             Fifth Circuit.

                              No. 93-1214.

   Andrew JOHNSON, Individually and as heir to and/or personal
representative of the estate of Andrew Gaston, his deceased son,
Plaintiff-Appellant,

                                   v.

     DALLAS INDEPENDENT SCHOOL DISTRICT and Donnie Breedlove,
Defendants-Appellees.

                             Nov. 17, 1994.

Appeal from the United States District Court for the Northern
District of Texas.

Before GOLDBERG, JONES and DUHÉ, Circuit Judges:

      EDITH H. JONES, Circuit Judge:

      Andrew Gaston's last moments on earth were passed in the

hallway at A. Maceo Smith High School in Dallas, Texas.          He was hit

in the head by a stray bullet shot during a melee instigated by the

killer, non-student Drumestic Contreal Brown.        The question before

this court is whether Gaston had either (1) a constitutional right

not to be placed in danger of deadly violence while at school or

(2)   a   more   general   constitutional    right   to   some   level   of

affirmative protection while at school.       Despite our sympathy for

Andrew's untimely death, we find no constitutional damage remedy

available to his family.

      The § 1983 case1 filed by Gaston's father against Dallas

      1
      State law causes of action were also pled in the complaint,
but they were dismissed on the basis that Texas law indisputably
shields school districts and their employees from this kind of
liability. The complaint did not assert any claim founded on the
Texas constitution.

                                    1
Independent School District and Donnie Breedlove, the principal of

Smith    High,   was   dismissed    for   failure    to     state    a    claim.

Fed.R.Civ.P. 12(b)(6).       The skeletal pleadings, our only guide to

the facts, reveal few details of the incident in which Gaston died.

They state that the assailant Brown somehow rode a school bus2 to

Smith High on the morning of October 23, 1991.               Brown went onto

campus and into the high school building although he was not

wearing a student ID badge required in some of DISD's schools.

Further,    Brown   carried    a   concealed   handgun,      which       was   not

discovered because the metal detectors placed by DISD at the school

were not being used.      Brown then created a disturbance, causing

students—allegedly without the aid of school employees—to attempt

to evict him.    Gaston was tragically in the line of fire when Brown

shot his gun.

     The district court's conscientiously reasoned dismissal rested

on three pivotal elements of a § 1983 claim.3               First, the court

held, Gaston had no affirmative constitutional right to protection

by DISD while he was at school.       Second, because plaintiff had not

pled that DISD's actions, custom, or policy caused Gaston's death,

DISD could not be held constitutionally liable.             Third, plaintiff

had not pled facts sufficient to overcome principal Breedlove's

assertion   of   qualified    immunity.    This     court    may    affirm     the


     2
      DISD is quick to point out that it did not run the school
bus—that service was contracted out to a private company.
     3
      This opinion discusses only the § 1983 claim because the
district court ruled correctly on the other issues asserted by
appellant.

                                      2
dismissal for failure to state a claim only if "it appears "beyond

doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.' "   Haines v. Kerner,

404 U.S. 519, 520-21;   92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)

(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2

L.Ed.2d 80 (1957)).

     The epidemic of violence in American public schools is a

relatively new phenomenon, but one which has already generated

considerable caselaw. Whether that epidemic invokes constitutional

consequences for the innocent, law-abiding students forced to

attend those schools raises grave questions that must be carefully

analyzed.

     To plead a constitutional claim for relief under § 1983,

Gaston's father had to allege a violation of a right secured to

Andrew by the Constitution or laws of the United States and a

violation of that right by one or more state actors.   Against the

Dallas Independent School District, he had to allege that an

unconstitutional custom or policy of DISD caused the violation.

See Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th

Cir.1994).   In this as in other similar cases, two potential

theories of constitutional liability have been proposed. First, it

may be contended that DISD and Principal Breedlove "violated

[Andrew's] constitutional rights by affirmatively creating the

hazardous environment" in which he attended school.    Id. at 530.

Alternatively, Andrew's father asserts that the state bore Andrew

an affirmative duty of care arising from the state's compulsory


                                3
attendance laws.   These theories will be discussed in turn.

                      1. State-Created Danger

     When state actors knowingly place a person in danger, the due

process clause of the constitution has been held to render them

accountable for the foreseeable injuries that result from their

conduct, whether or not the victim was in formal state "custody."

This principle has been applied in a number of cases from other

circuits. Three cases exemplify the state-created danger theory of

liability.    In Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989),

cert. denied, 498 U.S. 938, 111 S.Ct. 341, 112 L.Ed.2d 305 (1990),

a police officer arrested a drunken driver and impounded his car,

leaving the female passenger alone at night, without any means to

go home, in a neighborhood known for criminal activity.     She was

raped by a stranger who offered her a lift.     In Cornelius v. Town

of Highland Lake, 880 F.2d 348 (11th Cir.1989), cert. denied, 494

U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990), the state

permitted a prisoner with a violent criminal history to participate

in a work program at a municipal town hall under the supervision of

an untrained city employee.   He gained access to a knife, abducted

the plaintiff who worked for the city, and held her hostage for

three days.   Finally, in K.H. ex rel. Murphy v. Morgan, 914 F.2d

846 (7th Cir.1990), the state removed a sixteen-month-old child

from her parents' custody and in the next four years shuttled her

among eleven foster homes, in at least two of which she was

molested or abused.   The court held that, if the allegations of the

child's complaint were correct, state officials could be guilty of


                                  4
knowingly subjecting her to serious psychological damage. See also

White v. Rochford, 592 F.2d 381, 384-85 (7th Cir.1979) (state

liable for injuries to minor children left in car on side of busy

highway      after   state    officer      arrested   the     driver).   Although

different facts underlie each of these cases, the courts uniformly

held       that   state    actors    may   be   liable   if    they   created   the

plaintiffs' peril, increased their risk of harm, or acted to render

them more vulnerable to danger.4

       In contrast to these cases, but not in conflict, stands D.R.

v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364

(3rd Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct.

1045, 122 L.Ed.2d 354 (1993), in which the Third Circuit held en

banc that a school could not be liable for a series of sexual

assaults allegedly committed against two female students in the

unisex bathroom and a darkroom of the school's graphic arts class.

The abuse allegedly occurred during class, virtually under the eye

of a teacher trainee, two to four times weekly for an entire

semester.         Unlike     the    preceding   state-created      danger   cases,

however, the facts in Middle Bucks did not sufficiently demonstrate

that the state placed the plaintiffs in danger, increased their

       4
      Compare Salas v. Carpenter, 980 F.2d 299 (5th Cir.1992);
Bryson v. City of Edmond, 905 F.2d 1386, 1392 (10th Cir.1990) (No
liability of state for deaths of post office employees shot by
fellow employee where responding police officers did not create
the dangerous situation or worsen decedents' plights); Jackson
v. City of Joliet, 715 F.2d 1200, 1206 (7th Cir.1983), cert.
denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984)
(police conduct was held not the cause of the plaintiffs'
injuries when officer did not know that there were occupants in a
burning car and did not render aid); Brown v. Grabowski, 922
F.2d 1097 (3d Cir.1990).

                                            5
risk of harm, or made them more vulnerable to danger.          A classroom

is not per se dangerous, nor can it ordinarily be expected that

even an undertrained teacher will permit or be ignorant of sexual

molestation going on in class.       The risk that some students would

sexually molest other students during a class was not found to be

foreseeable to or known by school officials.5

         The key to the state-created danger cases, and the essence of

their distinction from Middle Bucks, lies in the state actors'

culpable     knowledge   and   conduct   in   "affirmatively   placing   an

individual in a position of danger, effectively stripping a person

of her ability to defend herself, or cutting off potential sources

of private aid."     Wideman v. Shallowford Community Hospital, Inc.,

826 F.2d 1030, 1035 (11th Cir.1987).          See also L.W. v. Grubbs, 974

F.2d 119, 121 (9th Cir.1992) (state officials knowingly assigned

violent, habitual sex offender to work alone with female prison

employee and did not inform her of the risk).         Thus the environment

created by the state actors must be dangerous;          they must know it

is dangerous;       and, to be liable, they must have used their

authority to create an opportunity that would not otherwise have

existed for the third party's crime to occur.          Put otherwise, the

defendants must have been at least deliberately indifferent to the

plight of the plaintiff.         See Leffall, 28 F.3d at 531 (no due

process claim stated against school district or officials for


     5
      And while the Middle Bucks decision does not articulate
this point, it seems self-evident that the plaintiffs could have
complained to their teacher or their parents, but their pleadings
did not indicate that they attempted such means of self-defense.

                                     6
holding a high school dance at which a student was shot and

killed).

     This court recently noted that no Fifth Circuit case has yet

predicated relief on a state-created danger theory, Id. at 530-31.

Leffall also questioned whether the Supreme Court voiced support

for that theory of constitutional liability.             In DeShaney v.

Winnebago County Dept. of Social Serv's., 489 U.S. 189, 109 S.Ct.

998, 103 L.Ed.2d 249 (1989), the Supreme Court remarked, "while 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."           489 U.S. at

201, 109 S.Ct. at 1006 (emphasis added).           Leffall suggested that

the Court was simply placing in context its broader ruling that the

state had no affirmative duty to the young client of its welfare

department.     Rather than adopt or reject a state-created danger

theory, Leffall found, in the context of a fatal shooting at a

school-sponsored    dance,   that   the   school   officials   lacked   the

requisite culpability for a constitutional violation.

      The approach of Leffall applies in this case.            Even if the

state-created    danger   theory    is    constitutionally     sound,   the

pleadings in this case fall short of the demanding standard for

constitutional liability.     First, they posit the question whether

the environment at Smith High School was "dangerous."           If for no

other reason, the presence of numerous trained adults would assure

that a school cannot be as dangerous as the nocturnal condition of

the high-crime neighborhood described in Wood or the prisoner


                                    7
release      program   gone    awry    in    Cornelius.        No    inference       of

dangerousness arises simply from the presence of student ID badges

or   metal    detectors;       such    devices   could    have      been    installed

prophylactically, in the absence of any prior trespasses onto

campus or incidents of criminal violence.              Moreover, to infer the

existence of a dangerous environment—the condition of § 1983

liability—solely from the presence of measures designed to avert

violence would erect a serious disincentive to their use.                     The law

cannot so turn against its purposes;             the use of security devices

should be      encouraged,     not    discouraged.        There     would    have    to

allegations at least of previous criminal conduct at Smith High

School from which a trier of fact could conclude it was tantamount

to a "high-crime area."

      Second, school officials must have actually known that Smith

High was dangerous to students such as Andrew Gaston.                          Actual

knowledge of a serious risk of physical danger to the plaintiff has

been a common feature of the state-created danger cases.                     From the

pleadings in this case, no legitimate inference can be drawn that

school officials might have been actually aware of a high risk that

an armed non-student invader would enter the campus and fire a

pistol randomly during school hours.

      Appellant's      claim    also    fails    the   third      element     of    the

state-created danger cases.             There is no pleading that school

officials placed Gaston in a dangerous environment stripped of

means to defend himself and cut off from sources of aid.                     There is

no sufficiently culpable affirmative conduct.                       Andrew went to


                                         8
school. No state actor placed Andrew in a "unique, confrontational

encounter" with a violent criminal.                 Cornelius, 880 F.2d at 359.

No official in the performance of her duties abandoned him in a

crack house or released a known criminal in front of his locker.

There is no suggestion that the school district or principal

fostered or tolerated anarchy at Smith High—the ID badges and metal

detectors permit the opposite inference. Even if the deployment of

such security measures was haphazard or negligent, it may not be

inferred that the conduct of the defendants rose to the level of

deliberate indifference.            As in Leffall, the most that may be said

of   defendants'     ultimately       ineffective         attempts    to    secure     the

environment is that they were negligent, but not that they were

deliberately indifferent. See also Graham v. Indep. Sch. Dist. No.

I-89,    22   F.3d   991,     995    (10th       Cir.1994);       compare      Salas    v.

Carpenter, 980 F.2d 299 (5th Cir.1992). On the contrary, the facts

here pleaded suggest only that Andrew was the tragic victim of

random    criminal      conduct       rather       than    of    school     officials'

deliberate, callous decisions to interpose him in the midst of a

criminally dangerous environment. Appellant's complaint, in short,

does    not   suffice    to    plead     that       Andrew      was   the   victim      of

state-created danger.

               2. Constitutional "Special Relationship"

         Although     Gaston's        death       was     not    a    result     of    an

unconstitutional state-created danger, this does not necessarily

preclude the broader theory of liability, premised on DeShaney, if

a "special relationship" exists between the plaintiff and the


                                             9
state.    In that case, the Supreme Court held that a minor could not

maintain a § 1983 action against Winnebago County and its social

services department or employees for serious injuries inflicted by

his father after a county caseworker returned DeShaney to his

father's custody and allegedly knew or should have known that the

father would be violent.            The Court concluded that "a State's

failure to protect an individual against private violence simply

does not    constitute     a     violation   of   the     Due    Process    Clause."

DeShaney, 489 U.S. at 197, 109 S.Ct. at 1004.                   The Court rejected

the contention that a "special relationship," carrying affirmative

constitutional obligations toward the child, existed by virtue of

the social welfare services the state provided.                  Such affirmative

obligations of care and protection arise only when the state "takes

a person into its custody and holds him there against his will."

Id. at 199-200, 109 S.Ct. at 1005-06 (citing Youngberg v. Romeo,

457 U.S. 307, 317, 102 S.Ct. 2452, 2459, 73 L.Ed.2d 28 (1982)

(institutionalized mentally ill) and Estelle v. Gamble, 429 U.S.

97,   103-04,      97   S.Ct.    285,   290-91,     50     L.Ed.2d    251    (1976)

(prisoners)).       The district court here concluded, as has every

circuit    court    that   has    considered      the    issue,     that    DeShaney

forecloses a constitutional claim on behalf of Andrew Gaston for

affirmative protection while at school.                 See, e.g., Maldonado v.

Josey, 975 F.2d 727, 730-33 (10th Cir.1992), cert. denied, --- U.S.

----, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993);              Dorothy J. v. Little

Rock Sch. Dist. 7 F.3d 729, 732 (8th Cir.1993);                    D.R. v. Middle

Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1369-72 (3rd


                                        10
Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1045,

122 L.Ed.2d 354 (1993);   J.O. v. Alton Community Unit Sch. Dist.

11, 909 F.2d 267, 272 (7th Cir.1990).

     Our court recently declined to address whether a "special

relationship" imposes affirmative constitutional duties of care on

public schools.   Doe v. Taylor ISD, 15 F.3d 443, 451 n. 3 (5th

Cir.1994) (en banc );   Leffall, 28 F.3d at 528-29.6

     As in Doe and Leffall, we find it unnecessary to decide the

"special relationship" issue in this case.      We agree with the

district court's conclusion on somewhat different grounds than it

expressed.   While a persuasive argument can be made for applying a

DeShaney "special relationship" in some measure to public school

students who are forced by compulsory education laws to attend

school and have no choice among public schools7, even under such a

     6
      In Walton v. Alexander, 20 F.3d 1350 (5th Cir.1994), this
court held that a "special relationship" was created between the
supervisor of a Mississippi custodial school for deaf children
and one of the students. The panel opinion has been vacated by
the grant of rehearing en banc. See Fifth Circuit Internal
Operating Procedure associated with F.R.A.P. 35. Additionally,
for the reasons stated in Leffall, Walton is distinguishable.
     7
      It is Texas law that, with few exceptions, students are
required to attend school until they reach the age of 17. See
Tex.Educ.Code Ann. § 21.032 (Vernon 1987 & Supp.1993). See also
Tex.Educ.Code Ann. § 21.033 (exemptions from compulsory
attendance requirements). Further, Texas law requires students
usually to attend the public school, often a neighborhood school,
designated by the district. See Tex.Educ.Code Ann. § 21.032(a)
(Vernon Supp.1993). State law places the school in loco parentis
during ordinary school hours and during the conduct of certain
school activities. See, e.g., Mercer v. State, 450 S.W.2d 715
(Tex.Civ.App.—Austin 1970, error dism'd as moot).
Notwithstanding similar laws in other states, four courts of
appeals have held that a student is not "in custody" within
DeShaney. These courts reason that custody in DeShaney meant
such an involuntary, full-time physical restraint and

                                11
superintendence as prevents a person from otherwise independently
providing for his needs and safety. See Dorothy J. v. Little
Rock Sch. Dist., 7 F.3d 729 (8th Cir.1993); Maldonado v. Josey,
975 F.2d 727, 731 (10th Cir.1992); D.R. v. Middle Bucks Area
Vocational Technical Sch., 972 F.2d 1364, 1370-72 (3d Cir.1992);
J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267, 272
(7th Cir.1990). Public school attendance is deemed "voluntary"
because parents are permitted to withdraw their students from the
public schools. Further, parents remain the principal caretakers
of their children even though they are housed at school for at
least six to eight hours daily.

          The fact is, however, that the state's custody of
     children in public schools is more comprehensive than is its
     intervention in family affairs via noncustodial welfare
     services. Such services often involve sporadic,
     intermittent contact with clients on a schedule that may not
     be predictable. Social workers provide valuable services to
     their un-institutionalized clients, but they cannot and do
     not tend to them continuously nor do they necessarily rely
     upon state-managed facilities as the locus of care.
     Schools, however, take care of children day after day for
     years in public facilities. Schools may be said to control
     children's environments to the same or even greater degree
     than state-sponsored foster care services, which have been
     held, post-DeShaney, to bear affirmative obligations to
     their client children. See, e.g., K.H. v. Morgan, supra;
     Yvonne L. v. New Mexico Dept. of Human Servs., 959 F.2d 883,
     893 (10th Cir.1992).

          The argument against holding that public schools have
     "custody," at least for some purposes of protecting their
     physical well-being, appears to derive less from logic than
     from a pragmatic desire to limit their legal liability. As
     has been shown, students must attend school and may not
     leave without permission. To say that student attendance is
     voluntary because parents may elect to home-school their
     children or send them to a private school is lamentably, for
     most parents, a myth. See D.R. v. Middle Bucks, 972 F.2d at
     1380 (Sloviter, J., dissenting). To intimate that parents
     retain effective responsibility for their children's
     well-being when the school alone makes critical decisions
     regarding student safety and discipline is inaccurate. To
     suggest that parents somehow are in a better position than
     the schools to protect their children from the ravages of
     weapons smuggled onto campus during the school day is
     cruelly irrational. To hope that students who are unarmed
     can protect themselves from the depredation of armed
     criminals in their midst is ridiculous. That parents yield
     so much of their children's care into the hands of public

                               12
legal regime the appellant's claim would not succeed.             Andrew

Gaston's death is attributable to the fortuity that an armed,

violent   non-student   trespassed   on   campus.   There   can   be   no

liability of state actors for this random criminal act unless the

fourteenth amendment were to make the schools virtual guarantors of

student safety—a rule never yet adopted even for those in society,

such as prisoners or the mentally ill or handicapped, who are the

beneficiaries of a "special relationship" with the state.           See,

e.g., Farmer v. Brennan, --- U.S. ----, 114 S.Ct. 1970, 128 L.Ed.2d

811 (1994).

     Because of our conclusion that appellant stated no § 1983

claim, we need not consider the specific grounds for potential

liability of the principal or Dallas Independent School District or

the question of qualified immunity.

     For the foregoing reasons, the judgment of the district court

is AFFIRMED.

     GOLDBERG, Circuit Judge, dissenting:

     The majority in the case before us found that a school

district should not be held responsible for the reasonable safety


     school officials may well be argued to place upon the
     officials an obligation to protect students at least from
     certain kinds of foreseeably dangerous harm during regular
     school hours.

          The author of this opinion dissented in Doe v. Taylor
     ISD, 15 F.3d 443 (5th Cir.1994) (en banc ). In suggesting
     that the "special relationship" theory of DeShaney may
     logically apply to public schools governed by compulsory
     attendance laws, I do not retreat from my reticence to
     expand the scope of constitutional claims, yet I feel
     compelled to observe the deficiencies of governing circuit
     caselaw.

                                 13
of its students.   The majority opinion holds that a student cannot

recover from a public school, or school officials, for injuries

sustained during school hours.   I respectfully dissent.

     The district court dismissed this action for failure to state

a claim according to Federal Rule of Civil Procedure 12(b)(6).

Dismissal is inappropriate unless the reviewing court determines

that the plaintiff could not recover under any set of facts.

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2

L.Ed.2d 80 (1957);    Leffall v. Dallas Indep. Sch. Dist., 28 F.3d

521, 523 (5th Cir.1994);    K.H. ex rel. Murphy v. Morgan, 914 F.2d

846, 847 (7th Cir.1990).    For purposes of this review, the court

should assume that the facts alleged in the plaintiff's pleadings

are true.     Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th

Cir.1994).

     The limited pleadings in this case sketch a rough image of the

"transformation of our public schools from institutions of learning

into crucibles of disaffection marred by increasing violence from

which anguish and despair are often brought to homes across the

nation."    Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991 (10th

Cir.1994).    Andrew Gaston, an innocent fifteen-year-old student,

was shot in the head and killed while in the halls of A. Maceo

Smith High School.   Drumestic Contreal Brown, a non-student, took

a school bus to get to the school, entered the school building,

created a disturbance, and ultimately fired the shot that killed

Gaston.

     While this story would be tragic in any school, the trauma is


                                 14
magnified in this case by the apparent ineptitude and fecklessness

of the school district and school officials in ensuring student

safety.     School   policy   required   students   to   purchase   school

identification badges, but there was no one to check them.             The

school also had metal detectors on the premises, but they were

packed away in boxes.    The majority opinion refuses to acknowledge

that these security measures were aimed at preventing the precise

incident that transpired on October 23, 1991.       The purpose of these

measures is clear and self-evident. The ID badges were intended to

control the presence of non-students on campus, not to serve as

useless decoration. The metal detectors were intended to eliminate

the presence of weapons on the school grounds, not to consume space

and collect dust like museum pieces. The target of these detectors

are the guns and knives fueling the violence in our schools.1

     Both of these security measures were inadequately employed,

and Brown was able to commit his fatal deed.        If the school had not

completely disregarded its security measures, Brown might have been

prevented from roaming the school halls and his gun might have been

detected.   Indeed, this lawsuit might never have materialized, and


     1
      Because this case was dismissed prematurely, the plaintiff
was not permitted to develop additional evidence relating to the
aggregate state of affairs at the school. Inferences of safety
and dangerousness require a fact-finder to examine and weigh
additional evidence relating to the aggregate state of affairs at
the school. Recognizing the nature of the security measures at
A. Maceo Smith High School does not necessarily compel an
inference of dangerousness, as the majority seems to suggest. An
objectively safe school might implement security measures to
maintain and safeguard its security and reputation. The purpose
of a trial is to permit a fact finder to draw inferences based on
evidence adduced through the discovery process.

                                   15
Gaston would have finished his studies at A. Maceo Smith High

School.

     The   majority   and   the    district   court   concluded    that   the

pleadings did not sufficiently allege facts or present a legal

basis for recovery.     I respectfully disagree on both counts.

     The complaint in this case alleges sufficient facts to survive

a Rule 12(b)(6) attack.         In dismissing this case, the district

court relied in part on Streetman v. Jordan, 918 F.2d 555 (5th

Cir.1990).    The district court essentially held that the plaintiff

did not allege facts with sufficient specificity to overcome the

heightened pleading requirement for § 1983 claims.         See Streetman,

918 F.2d at 557.       However, the Supreme Court invalidated the

heightened pleading requirement in Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, --- U.S. ----, 113

S.Ct.   1160,   122   L.Ed.2d     517   (1993).   Leatherman      held    that

plaintiffs in § 1983 cases need only meet the pleading requirements

established in Federal Rule of Civil Procedure 8(a).        Id., --- U.S.

at ----, 113 S.Ct. at 1161.         Our system of pleading has evolved

from the ancient system of the forms of action to the modern notice

pleading standard.      We should not return to the feudal days of

microscopic analysis of pleadings, but rather embrace the present

and future.     The plaintiff's pleadings need only adumbrate the

evidence expected in the prosecution of the case.          Thus,

     "[t]he issue is not whether a plaintiff will ultimately
     prevail but whether the claimant is entitled to offer evidence
     to support the claims. Indeed it may appear on the face of
     the pleadings that a recovery is very remote and unlikely but
     that is not the test."


                                        16
Taylor v. Ledbetter, 818 F.2d 791, 794 n. 4 (11th Cir.1987), cert.

denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989)

(citing Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d

90 (1974);    Miller v. Stanmore, 636 F.2d 986 (5th Cir.1981);

Johnson v. Wells, 566 F.2d 1016 (5th Cir.1978)).             This case should

not be prematurely dismissed and the plaintiff should be permitted

to develop evidence to support his claims.              Other courts have

upheld analogous claims.     See e.g., Waechter v. School Dist. No.

14-030, 773 F.Supp. 1005, 1010 (W.D.Mich.1991); Lichtler v. County

of Orange, 813 F.Supp. 1054 (S.D.N.Y.1993);           Pagano v. Massapequa

Public Schools, 714 F.Supp. 641, 643 (E.D.N.Y.1989); cf. Taylor v.

Ledbetter, 818 F.2d 791, 793 (11th Cir.1987).

     The majority posits and refutes two potential theories for

recovery in this case.      I find the majority's application of the

facts to each theory problematic.

                                      I.

     The majority recognizes that under the due process clause of

the Fourteenth Amendment, a state actor is held accountable for

foreseeable   injuries   when    it   creates   or    permits    a   dangerous

situation.    See   Salas   v.   Carpenter,     980   F.2d    299,   309   (5th

Cir.1992).    This principle has been labeled the state-created

danger doctrine.    Although the plaintiff's pleadings set forth the

requisite elements of a state-created danger claim, the majority

not only refuses to find them but also denies the plaintiff the

opportunity to demonstrate the state-created danger at A. Maceo

Smith High School on October 23, 1991.


                                      17
       The majority distills three elements that constitute the

state-created danger doctrine from prior cases.              The first element

is whether the environment was dangerous.                The second is whether

the state actors knew the environment was dangerous.                   The final

element is whether the state actors created an opportunity that

would not otherwise have existed for the injury to transpire.                The

requisite allegations in the pleadings will be examined below.

       The state forced Gaston to attend A. Maceo Smith High School

through its compulsory education laws.              See Tex.Educ.Code Ann. §

21.032(a) (Vernon 1987 & Supp.1993).             The majority points out that

to claim Gaston attended school voluntarily is to deny reality.2

See Majority Op. at 780-81, n. 7;               D.R. by L.R. v. Middle Bucks

Area       Vo.   Tech.   School,   972   F.2d    1364,   1380   (3rd   Cir.1992)

(Sloviter, C.J., dissenting), cert. denied, --- U.S. ----, 113

S.Ct. 1045, 122 L.Ed.2d 354 (1993) ("The compulsory nature of

public school attendance is not lessened by the fact that a few

fortunate students have the option to attend private school or be

educated at home.").3          A. Maceo Smith High School was arguably

       2
      Thus, this court's decision in Leffall is clearly
distinguishable from the instant case. Leffall v. Dallas
Independent Sch. Dist., 28 F.3d 521 (5th Cir.1994). We are not
attending an after-school dance in this case, where students must
pay for the privilege to attend, as was the case in Leffall. In
this case, we are attending school, studying our books, and
attendance is mandatory.
       3
        The Supreme Court has gone further, stating that

                 "[l]aw reaches past formalism. And to say a teenage
                 student has a real choice not to attend her high school
                 graduation is formalistic in the extreme."

       Lee v. Weisman, --- U.S. ----, ----, 112 S.Ct. 2649, 2658,

                                         18
dangerous on October 23, 1991.         While schools may not be per se

dangerous, the plaintiff should be given an opportunity to prove

that A. Maceo Smith High School was dangerous.            The very limited

discovery in this case reveals past instances of school violence.

Additional evidence and testimony might have further indicated

dangerousness.4    The    fact-finder,    after   a    trial,   should   have

considered the evidence and determined whether A. Maceo Smith High

School was dangerous or safe on October 23, 1991.

     Without factual development, we should not pass with finality

on the knowledge and level of culpability of the school district

and officials in this case.        The majority's interpretation of

"actual   knowledge"     seems   too    cramped   in     view   of   §   1983

jurisprudence.    The Supreme Court and this court have held that

liability may attach to the state through inaction or nonfeasance

as well as through action and malfeasance.            Canton v. Harris, 489

U.S. 378, 390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989)

(holding that a failure to promulgate a policy may demonstrate

deliberate indifference and be grounds for liability under § 1983);



     120 L.Ed.2d 467 (1992).
     4
      The mere presence of trained adults on school grounds does
not negate the potential dangerousness of the school. If trained
individuals were deliberately indifferent to the plight of the
students, the school might be as dangerous or more dangerous than
if they were not present. The parents may have relied upon the
presence of trained adults, and therefore not pressed for
additional security measures. "Failing to act may, under certain
circumstances, be more detrimental than acting." Taylor by and
through Walker v. Ledbetter, 818 F.2d 791, 800 (11th Cir.1987);
see also P.L.C. v. Housing Authority, 588 F.Supp. 961
(W.D.Pa.1984) (holding that a duty arose through detrimental
reliance).

                                   19
Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir.1994),

cert. denied, --- U.S. ----, 113 S.Ct. 1066, 122 L.Ed.2d 371 (1993)

("We ... hold that a school official's liability arises ... when

the student           shows   that    the   official,     by     action   or   inaction,

demonstrates a deliberate indifference to his or her constitutional

rights.") (emphasis supplied).5                We stated in Gonzalez v. Ysleta

Indep. Sch. Dist. that

       "[t]he "deliberate indifferent' requirement permits courts to
       separate omissions that "amount to an intentional choice' from
       those    that   are    merely    "unintentionally    negligent
       oversight[s].' "

996 F.2d 745, 756 (5th Cir.1993) (emphasis supplied) (quoting Rhyne

v. Henderson County, 973 F.2d 386, 392 (5th Cir.1992));                        see also

Salas       v.    Carpenter,    980    F.2d    299,   307    (5th   Cir.1992).      The

deliberate indifference standard is a high legal threshold,6 used

to distinguish simple negligence from the type of willful blindness

that       is    so   extreme   that   it     qualifies     as   active   conduct   for


       5
      See generally, Actionable Inaction: Section 1983 Liability
for Failure to Act, 53 Univ.Chi.L.Rev. 1048 (1986).
       6
      The deliberate indifference standard is difficult to meet
for several reasons. One reason is to prevent the Fourteenth
Amendment from becoming a "font of tort law." Daniels v.
Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 665, 88 L.Ed.2d 662
(1986) (citations omitted). Another reason is to protect state
actors from excessive financial exposure. See Canton v. Harris,
489 U.S. 378, 391-92, 109 S.Ct. 1197, 1206, 103 L.Ed.2d 412
(1989). The latter seems to be one of the majority's primary
concerns. See Majority Opinion at 780-81 & n. 7. The proper way
to address this concern is through the use of a high culpability
requirement and requiring that the deliberate indifference "be
closely related to the ultimate injury." Canton, 489 U.S. at
391, 109 S.Ct. 1206. Insulating deliberately indifferent school
districts and officials by preventing student suits goes to far
to protect the public fisc at the expense of defenseless school
children.

                                              20
determining culpability.      Id.   See also Temkin v. Frederick County

Comm'rs, 945 F.2d 716, 722-23 (4th Cir.1991), cert. denied, ---

U.S. ----, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992) (citing cases of

deliberate indifference);      Shaw by Strain v. Strackhouse, 920 F.2d

1135, 1145 (3d Cir.1990);       White v. Rochford, 592 F.2d 381, 385

(7th Cir.1979) (discussing liability based on gross negligence and

reckless disregard for the safety of others).          The language found

in these opinions demonstrates that the defendants here may be

liable under § 1983 for inaction and failure to obtain knowledge

about the school's security.         The plaintiff effectively alleged

that the school officials were deliberately indifferent to the

danger at the high school, in that they knew or should have known

about the environment at A. Maceo Smith High School.        At this stage

of the litigation, it is understandable that the plaintiff does not

have an abundance of evidence of the nebulous mental state of the

officials.    Cf. Thornbrough v. Columbus and Greenville R. Co., 760

F.2d 633, 640 (5th Cir.1985) (discussing the difficult task of

proving defendants' mindsets).         However, that does not justify

denying the plaintiff his day in court to attempt to show what may

be difficult but still possible to prove. Furthermore, there is no

evidence in this record to support the majority's assertion that

the   risk   of   a   non-student   invader   was   unforeseeable   by   the

defendants.       The majority claims it is inappropriate to draw an

inference of knowledge from the security measures in this case,

because such an inference would discourage schools from taking

steps to ensure student safety in the future.         However, it is just


                                     21
as inappropriate to draw an inference of safety from these security

measures. Furthermore, the majority's position effectively rewards

official    ignorance   and   irresponsibility.      The   courts   should

encourage student safety, not half-hearted security policies.           In

addition, even without an inference of dangerousness or knowledge

from these measures,7 there is a past history of firearms and

violence at A. Maceo Smith High School which, in conjunction with

other evidence that might have come to light through further

discovery, could have proved whether the school was the dangerous

or safe.8    Based on this record, we cannot know whether A. Maceo

Smith High School was a paragon of security or a "snake pit."9

     Finally,    the    majority   requires   an   extreme   showing    of

affirmative action from school officials, as it concludes that the

defendants cannot be liable because they "did not release a known

criminal in front of [Gaston's] locker."           Majority Op. at 779.

This position depreciates § 1983.10      If the majority's logic were

     7
      Such an inference does not require a great leap of faith.
The ID badge policy seems to be aimed at distinguishing students
who belong on campus from strangers, and the metal detectors are
a step in eliminating the presence of weapons from school
grounds. Taken together, these two measures seem to indicate
that the presence of armed non-students was, or should have been,
foreseeable to the school officials.
     8
      See Answers to Interrogatories. The only discovery allowed
in this case was in the form of one set of interrogatories.
     9
      Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982).
     10
      Some courts have implied that the action/inaction
distinction is crucial in determining whether the students may
recover for injuries from the school districts and officials.
See, e.g., D.R. by L.R. v. Middle Bucks Area Vo. Tech. School,
972 F.2d 1364, 1373-75 (3d Cir.1992); J.O. v. Alton Community
Unit School Dist. 11, 909 F.2d 267, 272 (7th Cir.1990). However,

                                    22
followed, then a school that was deliberately indifferent to the

risk of fire would be immune to suits for fire related injuries as

long as the principal did not strike the match.   This simply cannot

be true.   The state need not be the last link in the causal chain

to be liable for injuries.   In Estelle, the Court found a duty for

the state to provide medical care for injuries that were not caused

by a state actor, but rather through the performance of a work

assignment.   Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50

L.Ed.2d 251 (1976).   In Youngberg, the Court acknowledged that the

institutionalized patient has a right to medical care even though

the state did not cause his injuries.   Youngberg v. Romeo, 457 U.S.

307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982);     see also Lichtler v.

County of Orange, 813 F.Supp. 1054, 1056 (S.D.N.Y.1993) (stating

that a county could liable for student injuries resulting from a

tornado which struck during school hours).   If the state places an


other cases have criticized a curtailed and limited view based on
an act/omission distinction because it leads to contrived and
artificial results.

           "We do not want to pretend that the line between action
           and inaction, between inflicting and failing to prevent
           the infliction of harm, is clearer than it is. If the
           state puts a man in a position of danger from private
           persons and then fails to protect him, it will not be
           heard to say that its role was merely passive; it is
           as much an active tortfeasor as if it had thrown him
           into a snake pit."

     Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982). See
     also White v. Rochford, 592 F.2d 381 (7th Cir.1979) ("[I]t
     seems incongruous to suggest that liability [under § 1983]
     should turn on the tenuous metaphysical construct which
     differentiates sins of omission and commission."). Indeed,
     the Supreme Court stated deliberate indifference may result
     from acts or omissions. Estelle, 429 U.S. at 104-05, 97
     S.Ct. at 291.

                                 23
individual in a precarious situation, it cannot avoid liability if

the peril materializes in the form of injury.             Foreseeability is a

question   of   fact    and   is   not    to   be   answered   by   speculative

conclusions.

                                      II.

      The majority presents and rejects the notion that a public

school owes its students any duty to maintain a reasonably safe

environment in which to conduct classes.              The majority bases this

conclusion primarily on DeShaney v. Winnebago County Dep't Soc.

Serv's., 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) and

some circuit cases interpreting DeShaney.              However, DeShaney does

not   foreclose   the   possibility       of   some   obligation    to   protect

students from violence in public schools.                 The DeShaney Court

stated that when the state takes custody of an individual, an

affirmative duty arises under § 1983 to ensure the individual's

safety and well-being.        489 U.S. at 199-200, 109 S.Ct. at 1005.

Thus, the court's inquiry is two-fold.              The court must determine

whether Gaston was in state custody, and if so, whether the state

breached its duty to safeguard him.

      The majority found that Gaston was not in state custody.

Determining whether an individual is in state custody is typically

accomplished by examining whether the state has isolated the

individual from sources of private aid, or when,

      "the State by the affirmative exercise of its power so
      restrains an individual's liberty that it renders him unable
      to care for himself, and at the same time fails to provide for
      basic human needs—e.g., food, clothing, shelter, medical care,
      and reasonable safety...."


                                         24
DeShaney, 489 U.S. at 200, 109 S.Ct. at 1005 (citations omitted)

(emphasis supplied).     A "special relationship" between the state

and the individual arises when the state takes the person in

custody.11   In this case, the majority finds that Gaston was not in

     11
      The term "special relationship" has become talismanic and
complicated. Archie v. Racine, 847 F.2d 1211, 1223 (7th
Cir.1988). This court has expressly avoided determining whether
a school has a special relationship with its students. See
Leffall, 28 F.3d at 528-29; Doe v. Taylor Independent Sch.
Dist., 15 F.3d 443, 451 n. 3. Some courts have noted difficulty
with the concept.

             "The contours of what constitutes a "special
             relationship' between a municipality, acting through
             its officials, and its citizens are hazy and
             indistinct."

     Ellsworth v. Racine, 774 F.2d 182, 185 (7th Cir.1985).
     However, there are several examples of special relationships
     from prior cases. See, e.g., Estelle, 429 U.S. 97, 103-04,
     97 S.Ct. 285, 290-91 (state owes duty to prison inmates);
     Youngberg, 457 U.S. 307, 315-16, 102 S.Ct. 2452, 2458 (state
     owes duty to mental patients). Indeed, at least two
     circuits have intimated that a special relationship is not
     required to find custody or a duty to protect individuals.

             "Nothing in DeShaney suggests that state officials may
             escape liability arising from their policies maintained
             in deliberate indifference to actions taken by their
             subordinates.... Liability of municipal policymakers
             for policies or customs chosen or recklessly maintained
             is not dependent upon the existence of a "special
             relationship' between the municipal officials and the
             individuals harmed."

     Stoneking v. Bradford Area School Dist., 882 F.2d 720, 725
     (3d Cir.1989) (citing Canton v. Harris, 489 U.S. 378, 387,
     109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989) and Bordanaro
     v. McLeod, 871 F.2d 1151 (1st Cir.1989), cert. denied, 493
     U.S. 820, 110 S.Ct. 75, 107 L.Ed.2d 42 (1989)); see also
     Jensen v. Conrad, 747 F.2d 185, 194 (4th Cir.1984), as
     discussed in Swader v. Virginia, 743 F.Supp. 434, 439
     (E.D.Va.1990) (stating Jensen survives DeShaney) ("a right
     to affirmative protection need not be limited by a
     determination that there was a "custodial relationship.'
     The Fox [v. Custis, 712 F.2d 84 (4th Cir.1983) ] court ruled
     that a right to protection could arise from a custodial or

                                  25
custody because he could go home at the end of the day and he was

not locked in a cell.   However, "the concept of "custody' is not so

rigid as to be defined only in terms of a prison or mental

hospital."     Swader    v.   Virginia,   743   F.Supp.   434,   439

(E.D.Va.1990).12 Gaston's parents may have been responsible for his

food, clothing, shelter, and medical care, but both Gaston and his

parents relied on the school to ensure his safety so that he might




     other relationship.") (emphasis original).
     12
      There are many examples of special relationships and
custody in cases applying § 1983. See e.g., Stoneking v.
Bradford Area School Dist., 882 F.2d 720, 723-34 (3d Cir.1989);
Milonas v. Williams, 691 F.2d 931, 942 (10th Cir.1982), cert.
denied, 460 U.S. 1069, 103 S.Ct. 1524, 75 L.Ed.2d 947 (1983)
(finding that juveniles in boarding school in state custody).
Courts have found a duty when the state takes a child from the
natural parents and places the child under state supervision in
order to secure an adoption. Griffith v. Johnston, 899 F.2d
1427, 1439 (5th Cir.1990) (a "special relationship [arose] when
[the state] removed [children] from their natural homes and
placed them under state supervision"); K.H. ex rel. Murphy v.
Morgan, 914 F.2d 846, 849 (7th Cir.1990); Taylor v. Ledbetter,
818 F.2d 791, 795 (11th Cir.1987) (en banc). A duty arises to
protect prison inmates from other inmates. DeMallory v. Cullen,
855 F.2d 442, 445 (7th Cir.1988). A special relationship was
found between the state and a confidential informant's wife. G-
69 v. Degnan, 745 F.Supp. 254, 265 (D.N.J.1990). See also Fox v.
Custis, 712 F.2d 84, 88 (4th Cir.1983) ("[a constitutional right
to protection by the state] may arise out of special custodial or
other relationships created or assumed by the state"); Bowers v.
DeVito, 686 F.2d 616, 618 (7th Cir.1982); Simmons v.
Philadelphia, 947 F.2d 1042, 1067 (3rd Cir.1991) (state owed duty
of safety to pre-trial detainee due to custody); Horton v.
Flenory, 889 F.2d 454, 458 (3d Cir.1989) (state owed duty to
suspect in private club based on functional custody by police
officer); Lichtler v. County of Orange, 813 F.Supp. 1054, 1056
(S.D.N.Y.1993) ("Since power implies responsibility, where
governmental agencies or entities utilize sovereign compulsion to
exercise coercive powers, a correlative duty exists of due care
toward those subjected to such compulsion.").

                                 26
return home.13        Thus,     this   case   is   analogous   to   Griffith     v.

Johnston, where this court found that the state owed a duty to

children    removed      from    their   homes     and   placed     under   state

supervision.     899 F.2d 1427, 1439 (5th Cir.1990).14               The parents

clearly entrusted their children's safety to the school district.

Indeed, state law places a school in loco parentis.                 See Majority

Op.   at   780-81   n.    7.      Schools     often   use   their    role   as   a

justification for their actions affecting a student's rights.                  See


      13
      Maldonado v. Josey, 975 F.2d 727, 735 (10th Cir.1992) ("I
cannot fathom who, other than a teacher or other school staff
member, is capable of ensuring the "reasonable safety' of
school-children during the school day and class periods.")
(Seymour, concurring).
      14
      Other circuits have followed this approach in the foster
care context.

            "Here, in contrast, the state removed a child from the
            custody of her parents; and having done so, it could
            no more place her in a position of danger, deliberately
            and without justification, without thereby violating
            her rights under the due process clause of the
            Fourteenth Amendment than it could deliberately and
            without justification place a criminal defendant in
            jail or prison in which his health or safety would be
            endangered, without violating his rights either under
            the cruel and unusual punishments clause of the Eighth
            Amendment (held applicable to the states through the
            Fourteenth Amendment) if he was a convicted
            prisoner.... In either case the state would be a doer
            of harm rather than merely an inept rescuer, just as
            the Roman state was a doer of harm when it threw
            Christians to lions."

      K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 849 (7th
      Cir.1990) (citations omitted). See also Yvonne L. v. New
      Mexico Dep't of Human Serv's., 959 F.2d 883 (10th Cir.1992)
      (holding that children in the state's custody are owed an
      affirmative duty of protection); Doe v. New York City
      Department of Soc. Serv's., 649 F.2d 134 (2d Cir.1981),
      cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171
      (1983).

                                         27
New Jersey v. T.L.O., 469 U.S. 325, 336-41, 105 S.Ct. 733, 739-42,

83 L.Ed.2d 720 (1985) (recognizing a school's "need to maintain an

environment in which learning can take place");   Bethel Sch. Dist.

No. 403 v. Fraser, 478 U.S. 675, 684, 106 S.Ct. 3159, 3164, 92

L.Ed.2d 549 (1986).   Under the rule pronounced by the majority

today, parents who want to attempt to protect their children from

any harm will have to take turns standing guard at the school

building and playground.

     At this stage in the lawsuit, it is premature to suggest

whether the alleged failures on the part of the school district and

school officials should be characterized as negligent, grossly

negligent, callously indifferent, or any other legal label imposing

liability.   Let us return to our role of reviewing the law, and

allow the fact-finder to determine the facts.   Pleading strictures

should not be used to prevent cases where the pleadings do not

provide extremely detailed factualistic assertions.    Let us take

steps to ensure that our schools do not become shooting galleries

or places where criminals are free to roam and terrorize the

student body.    Our schools should be places of learning, and

personal safety is a vital component of a learning environment.




                                28
