                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 05a0285p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                         X
                                                          -
 KIMBERLY SCHRODER, Individually and as
                                                          -
 Administrator of the Estate of STEPHEN SCHRODER;
                                                          -
 LAWRENCE SCHRODER, Individually,
                                 Plaintiffs-Appellants, -
                                                              No. 04-5216

                                                          ,
                                                           >
           v.                                             -
                                                          -
                                                          -
                                                          -
 CITY OF FORT THOMAS, MARY BROWN, RON DILL,

                                                          -
 JEFF EARLYWINE, MARVIN DAWSON, and STEVEN

                                Defendants-Appellees. -
 SCHMIDT,
                                                          -
                                                         N
                          Appeal from the United States District Court
                       for the Eastern District of Kentucky at Covington.
                       No. 01-00124—David L. Bunning, District Judge.
                                            Argued: April 26, 2005
                                     Decided and Filed: June 29, 2005
             Before: COLE and SUTTON, Circuit Judges; ZATKOFF, District Judge.*
                                              _________________
                                                    COUNSEL
ARGUED: John H. Metz, Cincinnati, Ohio, for Appellants. Kimberly K. Zamary, KOHNEN &
PATTON, Cincinnati, Ohio, Chris J. Gadansky, LANDRUM & SHOUSE, Louisville, Kentucky,
for Appellees. ON BRIEF: John H. Metz, Cincinnati, Ohio, for Appellants. Kimberly K. Zamary,
Jeffrey C. Shipp, KOHNEN & PATTON, Cincinnati, Ohio, Chris J. Gadansky, Robert T. Watson,
LANDRUM & SHOUSE, Louisville, Kentucky, for Appellees.
                                              _________________
                                                  OPINION
                                              _________________
        SUTTON, Circuit Judge. On June 28, 2000, Kimberly and Lawrence Schroder suffered
every parent’s worst nightmare. Their ten-year-old son, Stephen, was struck and killed by a car
traveling 40 miles per hour in a 25 mile-per-hour zone on the street in front of their house. While
no law provides true recourse for such a loss, the Schroders and local prosecutors sought some relief

         *
           The Honorable Lawrence P. Zatkoff, Senior United States District Judge for the Eastern District of Michigan,
sitting by designation.


                                                          1
No. 04-5216           Schroder, et al. v. City of Fort Thomas, et al.                         Page 2


under the traditional civil and criminal causes of action authorized by state law, then the Schroders
sought relief under a less-traditional civil cause of action under federal law. In this § 1983 claim,
the Schroders submit that the City of Fort Thomas and some of its municipal officers violated their
son’s substantive due process rights by failing to act upon their request (and the requests of others)
to lower the speed limit on the street from 25 miles per hour to 15 miles per hour and by failing to
enforce the 25 mile-per-hour speed limit on the street. The district court rejected this claim as a
matter of law. Because the Due Process Clause establishes a “limitation on the State’s power to act,
not [ ] a guarantee of certain minimal levels of safety and security,” DeShaney v. Winnebago County
Dep’t of Social Servs., 489 U.S. 189, 195 (1989), we must affirm.
                                                  I.
        The City of Fort Thomas, Kentucky opened Garrison Avenue on June 22, 1925. More than
50 years later, on April 5, 1976, the City restricted traffic on Garrison to one-way southeasterly
travel and set the speed limit at 25 miles per hour, ten miles per hour below the State of Kentucky’s
permitted maximum speed limit (of 35 miles per hour) on residential streets. See Ky. Rev. Stat.
§ 189.390.
        Despite periodic complaints from the residents of Garrison Avenue, the 25 mile-per-hour
speed limit remained in effect for the next 24 years. Among the Garrison Avenue residents who
complained to city officials about the speed limit was Kimberly Schroder. In May 1996, Schroder
moved with her family, including two children, to 33 Garrison Avenue, and shortly thereafter she
began to complain about the speed of traffic and the amount of traffic on the street. On several
occasions between 1996 and 1999, Schroder told the police that Garrison was being used as a “cut-
through” between two busier streets and that drivers routinely exceeded the 25 mile-per-hour speed
limit. The police advised her to report license plate numbers of suspected traffic violators, though
they did not take (or promise to take) any further action against those violators or any actions
regarding the conditions on Garrison Avenue. The police also removed signs posted by residents
indicating that drivers should adhere to a 15 mile-per-hour speed limit because children in the area
were playing. According to city administrative officers, none of Schroder’s requests was approved
by the City.
        On June 28, 2000, just over 75 years after its creation, Garrison Avenue became the scene
of a tragic accident. At 6 p.m. that evening, a car traveling at an estimated speed of 40 miles per
hour struck and killed Stephen Schroder, the Schroders’ ten-year-old son, as he attempted to cross
the street in front of his home. The driver of the car, Phillip Bridges, pleaded guilty to second-
degree manslaughter for Stephen Schroder’s death and ultimately settled a civil tort suit with the
Schroders arising from the accident. In August of 2000, in response to the accident, the City
lowered the speed limit on Garrison Avenue to 15 miles per hour.
         On June 27, 2001, the Schroders filed this § 1983 action against the City and several of its
officials—Mayor Mary Brown, City Manager Jeff Earlywine, Building Services Director Ron Dill,
Public Works Foreman Marvin Dawson and Chief of Police Steven Schmidt. In their complaint, the
Schroders alleged that the City’s failure to maintain safe conditions on Garrison Avenue violated
their son’s substantive due process rights. The City’s creation of Garrison Avenue in 1925, its
management of the road since that date and its adoption and inadequate enforcement of a 25 mile-
per-hour speed limit, the Schroders argued, established a “state-created danger” under DeShaney and
Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998). The Schroders also brought claims
for negligence, wrongful death and loss of consortium under state law against the same defendants.
While acknowledging that the “dips and rises” on Garrison made it “one of the more hazardous
streets in the City,” JA 231 (testimony of Officer Michael Lehkamp), the City argued that the Due
Process Clause does not regulate a local municipality’s enforcement of its own traffic laws. The
district court agreed and granted summary judgment on the state-law and federal claims in the City’s
No. 04-5216            Schroder, et al. v. City of Fort Thomas, et al.                            Page 3


favor on January 26, 2004. On appeal, the Schroders have challenged only the district court’s
resolution of their federal constitutional claims.
                                                   II.
        The claims against the City and the individual defendants, as an initial matter, implicate
different theories of liability. Under Monell v. Department of Social Services, 436 U.S. 658 (1978),
a local government may be held liable under § 1983 only for the adoption of a “policy or custom”
that violates federally protected rights. Id. at 694. Under Saucier v. Katz, 533 U.S. 194 (2001),
government officials sued in their individual capacities may be held liable under § 1983 only when
they violate federally protected rights that are “clearly established.” Id. at 201. We need not address
the municipal-policy and qualified-immunity issues in this case, however, because both theories
share an initial premise—the violation of a federally protected right—that has not been satisfied.
Neither need we address the Schroders’ procedural due process argument (because it was not
presented in their complaint), or their argument that the district court abused its discretion in striking
a late affidavit explaining the dangers of a 25 mile-per-hour speed limit (because including the
affidavit in the record would not alter our constitutional analysis).
        In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), the
Supreme Court held that the Due Process Clauses of the Fifth and Fourteenth Amendments to the
United States Constitution “generally confer no affirmative right to governmental aid, even where
such aid may be necessary to secure life, liberty, or property interests of which the government itself
may not deprive the individual.” Id. at 196. In that case, a four-year-old child named Joshua
DeShaney was beaten and permanently injured by his father, with whom he lived and about whom
county social workers had received several abuse complaints. Id. at 191. Despite the fact that
county officials “had reason to believe” that the abuse was ongoing and despite the fact that they
“did not act to remove [Joshua] from his father’s custody,” id., the Court held that the County’s
actions did not violate the Due Process Clause. “[N]othing in the language of the Due Process
Clause itself,” the Court reasoned, “requires the State to protect the life, liberty, and property of its
citizens against invasion by private actors,” because “[t]he Clause is phrased as a limitation of the
State’s power to act, not as a guarantee of certain minimal levels of safety and security.” Id. at 195;
see also Town of Castle Rock v. Gonzales, __ U.S. __, No. 04-278, 2005 U.S. LEXIS 5214, at *13
(2005).
         There are two exceptions to the DeShaney rule, one established by DeShaney itself, the other
by decisions of this court. Under the first exception, “when the State takes a person into its custody
and holds him there against his will, the Constitution imposes upon it a corresponding duty to
assume some responsibility for his safety and general well-being.” DeShaney, 489 U.S. at 199–200.
“Having incarcerated persons with demonstrated proclivities for antisocial criminal, and often
violent, conduct, having stripped them of virtually every means of self-protection and foreclosed
their access to outside aid, the government and its officials are not free to let the state of nature take
its course.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (citations, brackets and quotations
omitted). Under the second exception, where a State creates a perilous situation that renders citizens
more vulnerable to danger at the hands of private actors, a plaintiff may bring a substantive due
process claim by establishing (1) an affirmative act by the State that either created or increased the
risk that the plaintiff would be exposed to private acts of violence, see Kallstrom v. City of
Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998); (2) a special danger to the plaintiff created by state
action, as distinguished from a risk that affects the public at large, see id.; and (3) “the requisite
[state] culpability to establish a substantive due process violation,” Ewolski v. City of Brunswick,
287 F.3d 492, 510 (6th Cir. 2002). We have described the “requisite culpability” factor as requiring
“deliberate indifference” by the government entity when the entity “had time to deliberate on what
to do.” Bukowski v. City of Akron, 326 F.3d 702, 710 (6th Cir. 2003).
No. 04-5216            Schroder, et al. v. City of Fort Thomas, et al.                            Page 4


        The Schroders’ claim implicates the DeShaney prohibition, and they cannot bring themselves
within either of its exceptions. DeShaney’s holding that the Constitution does not “guarantee [ ]
certain minimal levels of safety and security” precludes the Schroders’ argument that the Due
Process Clause constitutionalizes a locality’s choices about what speed limit to adopt for a given
street or how to enforce that speed limit. We are not the first, and likely will not be the last, court
to conclude that a tragedy like the one the Schroders suffered in this case stems (for constitutional
purposes) from the reckless driving of a private citizen, not from the governmental actions of the city
or its officials. See Jones v. City of Carlisle, 3 F.3d 945, 948 (6th Cir. 1993) (holding that the
DeShaney principle barred suit when the “City was [allegedly] aware that [an epileptic driver]
presented a danger to motorists but took no action to revoke his driver’s license”); see also White
v. City of Toledo, 217 F. Supp. 2d 838, 840 (N.D. Ohio 2002) (“[A] city’s alleged failure, even if
intentional, to enforce [a] speed limit does not state a § 1983 claim against a municipality.”); Hull
v. City of Duncanville, 678 F.2d 582, 584 (5th Cir. 1982); Estate of Moser v. Exeter Township
Borough Council Members, No. 98-3525, 1998 U.S. Dist. LEXIS 14012, at *4–8 (E.D. Pa. 1998);
Wark v. Bd. of County Comm’rs, 47 P.3d 711, 716–17 (Colo. Ct. App. 2002); City of Fort Worth v.
Robles, 51 S.W.3d 436, 443–44 (Tex. Ct. App. 2001); cf. Norris v. City of Montgomery, 29 F. Supp.
2d 1292, 1297 (M.D. Ala. 1998); Wright v. Bailey, 611 So. 2d 300, 303–06 (Ala. 1992); Minks v.
Pina, 709 N.E.2d 379, 383–84 (Ind. Ct. App. 1999); Biggs v. Beth, No. 40717, 1989 Mo. App.
LEXIS 346, at *11–16 (Mo. Ct. App. 1989).
         Nor do either of the two DeShaney exceptions apply to a city’s enforcement of its general
traffic laws. The “custodial” exception does not apply, the parties agree, because there has been no
involuntary custody in this case. See DeShaney, 489 U.S. at 200 (holding that an affirmative duty
to protect arises “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”); cf. Estelle v. Gamble, 429 U.S. 97, 104
(1976) (holding that “deliberate indifference to [the] serious medical needs of prisoners” violates
the Constitution); Youngberg v. Romeo, 457 U.S. 307, 324 (1982) (reaching the same conclusion
with respect to involuntarily committed patients).
         The Schroders also fail to satisfy any of the three requirements for establishing our circuit’s
“state-created danger” exception to DeShaney. First, the creation of a street and the management
of traffic conditions on that street are too attenuated and indirect to count as an “affirmative act” that
placed Stephen Schroder in the setting of a state-created peril. See DeShaney, 489 U.S. at 201
(holding that the State “played no part in [the] creation” of the dangers facing Joshua DeShaney
even though it had created the laws that placed him in the custody of his father); Martinez v.
California, 444 U.S. 277, 285 (1980) (holding that decedent’s death five months after a parole broad
granted a former prisoner release “is too remote a consequence of the parole officers’ action to hold
them responsible under the federal civil rights law”); Cartwright v. Marine City, 336 F.3d 487, 493
(6th Cir. 2003) (taking an individual from “a place of great danger” (the shoulder of a dark, foggy,
two-lane highway) and moving him to “a place of lesser danger” (the parking lot of an open
convenience store) does not count as an affirmative act); Bukowski, 326 F.3d at 709 (finding no
affirmative act when the police returned plaintiff to her home at her request); Sargi v. Kent City Bd.
of Educ., 70 F.3d 907, 912–13 (6th Cir. 1995) (holding that the failure to train bus drivers to respond
to a medical emergency did not amount to an “affirmative action that exposed decedent to any
danger to which she was not already exposed”).
        Second, the City’s establishment of a 25 mile-per-hour speed limit and enforcement (or lack
of enforcement) of that law did not create a “special danger” to a discrete class of individuals (of
which the Schroders’ son was a member), as opposed to a general traffic risk to pedestrians and
other automobiles. See Jones, 3 F.3d at 950 (observing that “while [the private tortfeasor] was a
definite danger behind the wheel of a motor vehicle, he was no more a danger to [the plaintiff] than
to any other citizen on the City streets”); Jones v. Union County, 296 F.3d 417, 431 (6th Cir. 2002)
(holding that the “failure to serve [an] ex parte order of protection did not create or increase the
No. 04-5216           Schroder, et al. v. City of Fort Thomas, et al.                          Page 5


danger posed to Plaintiff by her ex-husband, or place her specifically at risk”); Peach v. Smith
County, No. 02-6194, 2004 U.S. App. LEXIS 2885, at *12–13 (6th Cir. Feb. 17, 2004).
        Third, the requisite “deliberate indifference” has not been established. The Schroders and
others, it is true, warned the City about the risks of a 25 mile-per-hour speed limit and urged them
to lower it to 15 miles per hour. And in one sense of these words, it is also true, it could be
suggested that the City exhibited deliberate indifference to these warnings. After all, the City was
told about the risks of not lowering the speed limit to 15 miles per hour (more accidents); it
intentionally chose not to heed this warning (taking on the risk of more accidents); and the alleged
risk came to pass when Stephen Schroder was killed (an accident).
         But this argument classically proves too much. It is in the very nature of deliberative bodies
to choose between and among competing policy options, and yet a substantive due process violation
does not arise whenever the government’s choice prompts a known risk to come to pass. For in one
sense, it could be said that all governing bodies act with deliberate indifference when they consider
and reject a traffic-safety proposal of this sort that comes with known risks—because the accepted
premise of all speed-limit debates is that lower speed limits will lead to fewer accidents and fewer
traffic fatalities. Many, if not most, governmental policy choices come with risks attached to both
of the competing options, and yet “it is not a tort for government to govern” by picking one option
over another. Scheuer v. Rhodes, 416 U.S. 232, 241 (1974) (quoting Dalehite v. United States, 346
U.S. 15, 57 (1953) (Jackson, J., dissenting)). Because the demands on a government may be as
manifold as its resources are limited, the Court has recognized in DeShaney and elsewhere that the
practicalities of day-to-day governance require officials to make difficult allocation choices and
tradeoffs and that it is generally not for the courts to compel affirmative steps in one area at the
expense of another in weighing competing policy options. See DeShaney, 489 U.S. at 203
(recognizing that the defendant social workers faced a difficult policy decision because, “had they
moved too soon to take custody of the son away from the father, they would likely have been met
with charges of improperly intruding into the parent-child relationship, charges based on the same
Due Process Clause that forms the basis for the present charge of failure to provide adequate
protection”); Collins v. City of Harker Heights, 503 U.S. 115, 128–29 (1992) (observing that
“[d]ecisions concerning the allocation of resources to individual programs . . . involve a host of
policy choices that must be made by locally elected representatives”); see also Dawson v. Milwaukee
Hous. Auth., 930 F.2d 1283, 1286 (7th Cir. 1991) (recognizing that “[j]udicial directives to devote
more resources to safety do not create more resources” but merely “reallocate resources”).
         Consider the policy tradeoffs in this case. Kentucky law permitted the City to choose any
speed limit for this residential area at or below 35 miles per hour, Ky. Rev. Stat. § 189.390, and it
is quite possible that many residents, wisely or unwisely, thought that the 25 mile-per-hour speed
limit represented a legitimate compromise between the 15 mile-per-hour speed limit that was being
proposed and the 35 mile-per-hour speed limit that Kentucky law permitted. Given the limited
resources of the City’s budget, moreover, the choice to ramp up enforcement of the 25 mile-per-hour
speed limit on Garrison Avenue assuredly would have meant decreased enforcement of other public
safety laws. Finally, efforts to alter traffic patterns and slow down traffic on Garrison Avenue might
well have created other traffic-safety risks of their own. As the Fort Thomas City Council
acknowledged in addressing the policy issues implicated by the speed limit on Garrison Avenue, the
installation of speed bumps or traffic channeling to reduce the speed to 15 miles per hour may make
it “difficult to snow plow during winter snow and ice, and harder to get fire trucks [and] garbage
trucks through [the] area.” JA 238.
       These considerations go a long way to explaining why our cases stress that, where a plaintiff
claims that a non-custodial substantive due process violation has occurred because of the
government’s deliberate indifference, something more must be shown—a something that we have
variously described as “callous[] disregard [for] the risk of injury,” Ewolski, 287 F.3d at 515, or
No. 04-5216           Schroder, et al. v. City of Fort Thomas, et al.                         Page 6


action “in an arbitrary manner that ‘shocks the conscience’ or that indicates an[] intent to injure,”
Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 493 (6th Cir. 2002). That additional element—be it
termed callous disregard or intent to injure—ensures that “only the most egregious official conduct
can be said to be ‘arbitrary in the constitutional sense.’” County of Sacramento v. Lewis, 523 U.S.
833, 846 (1998). And that additional element independently ensures that the standards for proving
a state-created-danger violation based on governmental inaction correspond to the standards
necessary for proving a substantive due process violation based on governmental action, which the
Supreme Court has described as a “level of executive abuse of power . . . [that] shocks the
conscience,” id. See also Daniels v. Williams, 474 U.S. 327, 328 (1986) (holding that “the Due
Process Clause is simply not implicated by a negligent act of an official causing unintended loss of
or injury to life, liberty, or property”); Upsher v. Grosse Pointe Pub. Sch. Sys., 285 F.3d 448, 453
(6th Cir. 2002); Lewellen v. Metro. Gov’t of Nashville & Davidson County, 34 F.3d 345, 351 (6th
Cir. 1994).
        The “callous disregard” or “conscience shocking” element is conspicuously missing here.
What the Schroders have shown at most is that the City either shortsightedly did not heed the
complaints of its citizens before tragedy struck or did not strike the correct balance in determining
the proper speed limit for Garrison Avenue. And while this accident would wrench even the coldest
of hearts and is undeniably heart-wrenching for the Schroder family, for the Fort Thomas
community and for us, it does not present a federal constitutional violation. See Ewolski, 287 F.3d
at 516 (“[I]mprudence and poor execution do not rise to the level of constitutionally arbitrary abuses
of power.”).
                                                 III.
       For these reasons, we must affirm.
