                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-2425

R ONALD S LADE, individually and
as administrator of the estate of
K AMONIE S LADE; and C HARAMA S LADE,

                                            Plaintiffs-Appellants,
                               v.


B OARD OF S CHOOL D IRECTORS OF THE
C ITY OF M ILWAUKEE, et al.,
                                                          Defendants,
                              and

M ARIBETH G OSZ and L INDA E STES,
                                           Defendants-Appellees.


           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
         No. 2:11-cv-222-RTR—Rudolph T. Randa, Judge.



   A RGUED O CTOBER 24, 2012—D ECIDED D ECEMBER 27, 2012
2                                                   No. 12-2425

    Before P OSNER, W OOD , and T INDER, Circuit Judges.
   P OSNER, Circuit Judge. The plaintiffs—the estate of a
decedent, Kamonie Slade, and his parents—brought suit
against administrators of the Wisconsin public school
that the boy was attending at the time of his death from
drowning at a class outing. The suit is based on 42 U.S.C.
§ 1983 and claims that the defendants deprived Kamonie
of his life in violation of the due process clause of the
Fourteenth Amendment. The district judge granted
summary judgment for the defendants and having done so
relinquished jurisdiction over the plaintiffs’ supplemental
state law tort claims and dismissed the suit. The appeal
challenges only the dismissal of the federal claim; and
the only defendants against whom that claim is made,
and hence the only appellees, are Estes (formerly named
Roundtree) and Gosz, the principal and an assistant
principal of the school. The plaintiffs seem to have a
meritorious state law tort claim against at least Gosz. But
with irrelevant exceptions, Wisconsin law caps the tort
liability of a public employee at $50,000 per victim. Wis.
Stat. § 893.80(3); Linville v. City of Janesville, 516 N.W.2d 427,
433 (Wis. 1994). That would make the plaintiffs’ maximum
recovery on their state law claims for wrongful death
and loss of consortium $150,000, which is meager in
the circumstances but of course beyond our control.
  The facts are not in serious dispute. Gosz planned and
Estes approved a field trip to Mauthe Lake for graduating
seventh graders on the last day of the school year. The
lake, a 70-acre lake with a maximum depth of 23 feet, is
located in the Kettle Moraine State Forest in southeastern
No. 12-2425                                               3

Wisconsin, and has a public beach. The seventh graders
were invited, not required, to go on the trip. Notices
were sent to the students’ parents asking permission
for their kids “to play in the water” (if they went on
the outing) and, if permission was granted, asking the
parents to equip their kids with bathing suits and other
swimming gear. Rules of the Milwaukee Public School
District, which includes the school that Kamonie
attended, forbid recreational swimming on field trips
unless a lifeguard is present. Gosz, who conducted the
children to the lake, was aware that there was no
lifeguard, aware of the school district’s rules about swim-
ming, and aware that there were places in the designated
swimming area where the water would be over the chil-
dren’s heads. And Estes may have directed Gosz to keep
the children out of the water, which Gosz did not do.
  Ninety-two children participated in the outing. In the
morning about half of them entered the lake, all from
the public beach. After lunch a teacher named Pitta saw
six children, including Kamonie, who was 12 years old,
at the water’s edge. Gosz asked Pitta to supervise
them. Pitta didn’t know whether any of the children
could swim, and although he can swim he is not a
certified lifeguard and was not wearing a bathing suit.
He told the children not to go so far into the lake that the
water would be above their chests. Kamonie, with other
students, walked into the lake and kept walking until the
water reached his chest, and he was then drawn, either by
a current or by the downward slope of the lake’s bottom,
to a location at which the water was over his head. He
was a poor swimmer, was unable to keep afloat, and
drowned.
4                                                 No. 12-2425

  Pitta dove into the water when he heard
children yelling for help, and a child approached Gosz
and told her that someone was drowning. After telling
another adult to call 911, Gosz followed Pitta into the
water. All to no avail. Kamonie was about 100 feet from
the shore when he drowned, but still inside the lake’s
designated swimming area. He was a shade under 6 feet
tall; the lake was approximately 7.6 feet deep where
he drowned. For purposes of the appeal we assume that
had a lifeguard been present Kamonie would have
been saved, although obviously this is uncertain.
   A state does not deprive a person of his life in viola-
tion of the Fourteenth Amendment merely by failing to
prevent his dying, but does violate the amendment if
the death was caused by the reckless act by an employee
of the state acting within the scope of his or her employ-
ment. E.g., Paine v. Cason, 678 F.3d 500, 509-11 (7th Cir.
2012); King ex rel. King v. East St. Louis School District 189,
496 F.3d 812, 817-18 (7th Cir. 2007); Currier v. Doran, 242
F.3d 905, 918 (10th Cir. 2001); cf. Sanford v. Stiles, 456
F.3d 298, 309-10 (3d Cir. 2006) (per curiam). The cases
generally understand “recklessness” to mean knowledge
of a serious risk to another person, coupled with failure
to avert the risk though it could easily have been averted.
This is the criminal meaning of recklessness, whereas
in civil cases at common law it is enough that the risk,
besides being serious and eminently avoidable, is obvious;
it need not be known to the defendant. See Doe v. St.
Francis School District, 694 F.3d 869, 872 (7th Cir. 2012).
  A complication is that often in cases such as this the
court in describing the liability standard will substitute
No. 12-2425                                                5

for recklessness the term “deliberate indifference.” The
word “deliberate” makes the standard sound like the
criminal standard of recklessness. But actually it’s an
unsettled question whether knowledge of the risk is
required or it is enough that the risk is obvious, West By &
Through Norris v. Waymire, 114 F.3d 646, 650-52 (7th Cir.
1997); Sanford v. Stiles, supra, 456 F.3d at 310 and n. 15,
other than in Eighth Amendment (“cruel and unusual
punishments”) cases, where the Supreme Court has held
that knowledge of the risk is required for liability. Farmer
v. Brennan, 511 U.S. 525, 536-42 (1994). Although as we
pointed out in Doe “in practice there is little difference
between known and obvious, the former being a natural
inference from the latter,” 694 F.3d at 871 (citation omit-
ted), there is at least a shade of difference; the risk might
be obvious to a normal person but the defendant might
be especially obtuse. But in this case as in Doe the dif-
ference between what is known and what is obvious
is unimportant.
  The defendants argue that they committed no “affirma-
tive act” causally related to Kamonie’s drowning. The
term “affirmative act” appears in some of the cases but
is unhelpful. All acts are affirmative, including standing
still when one could save a person by warning him of
some impending danger. The defendants acted when
they decided to have an outing for the students at which
there would be swimming, when they asked parental
authorization, when they allowed the kids to go into
the water even though no lifeguard was present.
Consider the following case. Police publish the name of
a person who provided them with a confidential tip, and
6                                                No. 12-2425

as a result of the publication he’s killed by the criminals
inculpated by the tip. It is no defense to a charge of a
violation of due process that the death was inflicted by
private persons. Monfils v. Taylor, 165 F.3d 511 (7th Cir.
1998); Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir.
2006); Kallstrom v. City of Columbus, 136 F.3d 1055, 1063 (6th
Cir. 1998). The police had placed him in a position of great
danger and the danger was a significant causal factor in his
demise, although not the only factor, just as the acts of the
defendants in this case were not the only causes of
Kamonie’s death: his lack of good swimming skills and
the depth and the lake’s current or the pitch of the lake
floor were causes as well.
  Cases like Monfils are “trap” cases; the police place a
person in a situation in which he is endangered by other
private persons; the police in effect are their accompli-
ces—unwitting, but if reckless culpable. In other
cases in which state employees are held liable under the
due process clause for injuries inflicted by private
persons—cases often referred to (not very illuminatingly)
as “special relationship” cases—the state has by ex-
ercising custody over a person deprived him of the
ability to protect himself and has thus endangered him.
K.H. Through Murphy v. Morgan, 914 F.2d 846, 848-50
(7th Cir. 1990); Doe ex rel. Johnson v. South Carolina Depart-
ment of Social Services, 597 F.3d 163, 172-75 (4th Cir. 2010).
  With such cases contrast one in which residents of a
neighborhood that is a battlefield of rival gangs plead
with the police to make greater efforts to pacify the neigh-
borhood, but their pleas fall on deaf ears—and sure
No. 12-2425                                                   7

enough a resident is caught in a crossfire and dies.
His estate may have a claim against the police
under state law, but not under the Fourteenth Amend-
ment. DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989); Sandage v. Board of Commis-
sioners, 548 F.3d 595, 596 (7th Cir. 2008); Stevens v. Umsted,
131 F.3d 697, 705-06 (7th Cir. 1997); Jones v. Reynolds, 438
F.3d 685, 691-92, 694 (6th Cir. 2006). This is not because
the police failed to act; they acted, but their act was
the deployment of their resources elsewhere. That act
was a significant causal factor in the death, but there is
no constitutional violation. This is not because of absence
of causality but because recognition of a constitutional
right to adequate police protection and other public
assistance would place federal judges in control of much
of the apparatus of government. For much of what gov-
ernment does is protect and otherwise assist members
of the public, and when it fails in these duties and
harm results it is often easy enough to make a colorable
claim of negligence or worse. Were liability under
federal law allowed to be imposed in such cases, federal
judges would become deeply involved in the allocation
of public funds and services, a task for which guidance
can’t be found in the Constitution. The judges would be
at large, usurping traditional legislative and executive
functions. Collins v. City of Harker Heights, 503 U.S. 115, 128-
29 (1992). That is why we have said that “’the Constitution
is a charter of negative liberties,’” Sandage v. Board of
Commissioners, supra, 548 F.3d at 596, quoting Bowers v.
DeVito, 686 F.2d 616, 618 (7th Cir. 1982), not positive
liberties, such as the right to police protection.
8                                               No. 12-2425

  The Milwaukee Public School District could have allo-
cated greater resources to assuring the safety of children
on field trips. It could have assigned three or four full-
time staffers to the planning of trips or have hired a
specialist to audit every proposed trip to ensure full
compliance with all federal, state, local, and district laws
and regulations; such measures might well have saved
Kamonie’s life. But like all school districts the Milwaukee
district had to decide how many resources to allocate
to safety on field trips, given budgetary limits and com-
peting claims on its resources. The federal courts are not
in a position to second-guess such judgments, except
perhaps in the most extreme circumstances. But the
complaint in this case is not about the amount of resources
allocated to safety in field trips, but about the specific
conduct of the staff involved in a specific field trip,
conduct that could be thought to fall within some com-
bination of the “trap” and “custody” grounds of liability.
  The defendants, it is true, did not order Kamonie into
the water, or for that matter order him to go on the
outing at all. They planned and led the field trip that
exposed him to the danger, but the same might be said of
the government’s efforts to recruit soldiers. The fact that
the government encourages a person to expose himself
to danger, for example by asking him to participate in
a drug sting as a confidential informant or accept a
risky government job, does not create liability under the
due process clause just because the danger materializes.
Dykema v. Skoumal, 261 F.3d 701, 705-07 (7th Cir. 2001);
Velez-Diaz v. Vega-Irizarry, 421 F.3d 71, 80-81 (1st Cir.
2005); see also Collins v. City of Harker Heights, supra, 503
U.S. at 125-29. This is merely recognition that the
No. 12-2425                                             9

defense of assumption of risk is applicable to constitu-
tional torts and not just to common law ones.
  The defendants seek exculpation on that ground
(among others), but if the plaintiffs’ case were otherwise
sound, the defense of assumption of risk could not
prevail as a matter of law; instead it would present a
triable issue. Kamonie was only a 12 year old; he lacked
mature judgment; and he was subject to the usual peer
pressures that beset children. Was it realistic to
expect him to hang back when his classmates were splash-
ing around in the water? The defendants’ argument
that Kamonie was the author of his own death is
heartless; it may also be obtuse.
  The plaintiffs argue that the defendants enticed
Kamonie into danger. But they overshoot the mark,
just as the defendants undershoot it. Enticement is de-
liberate; to say that Gosz and Estes enticed Kamonie into
a dangerous situation is to accuse them of deliberate
endangerment, and there is no evidence of that. Gosz
was negligent and her negligence enhanced the danger
inherent in swimming in a lake: she disobeyed the
rule requiring the presence of a lifeguard even though
she knew that portions of the designated swimming area
were so deep that the water was over the head of some
of the kids. It is well known to most adults that lakes
and other natural bodies of water, even inland water, are
dangerous because of currents and uneven depth, and
especially to children. Estes may have been negligent
too in failing to require a proper permission slip or to
make sure that there would be a lifeguard on duty.
10                                                  No. 12-2425

   The defendants’ negligence enhanced the risk to
Kamonie, but negligence is not enticement, or delib-
erate indifference, or blindness to obvious dangers. Negli-
gence is therefore not a basis for liability in a due process
case, as the case law makes clear. County of Sacramento v.
Lewis, 523 U.S. 833, 848-49 (1998); Davidson v. Cannon, 474
U.S. 344, 348 (1986); Daniels v. Williams, 474 U.S. 327 (1986);
Lewis v. Anderson, 308 F.3d 768, 773 (7th Cir. 2002). Nor is
gross negligence. See, e.g., id.; Archie v. City of Racine, 847
F.2d 1211, 1219-20 (7th Cir. 1988) (en banc); Kennedy v. City
of Ridgefield, supra, 439 F.3d at 1064-65; Hart v. City of Little
Rock, 432 F.3d 801, 805-06 (8th Cir. 2005); Gazette v. City
of Pontiac, 41 F.3d 1061, 1066-67 (6th Cir. 1994); but cf. Hunt
v. Sycamore Community School District Board of Education,
542 F.3d 529, 535 (6th Cir. 2008); Phillips v. County of
Allegheny, 515 F.3d 224, 241 (3d Cir. 2008). Gross negligence
is not recklessness (or “deliberate indifference”) in
either the civil or the criminal sense.
  Consider tort liability to a business invitee. A home-
owner through negligence, perhaps even gross
negligence, fails to repair a rotten step in his doorway. A
repairman—a business invitee—steps on the rotten step,
which gives way, spilling and injuring him. The home-
owner is liable at common law for negligence. But if it is a
public school rather than a private home, can the repair-
man sue school officials under 42 U.S.C. § 1983, on the
ground that he was enticed into a place of danger? The
answer is no. “Entice” does not mean to be careless
in allowing someone onto your property, or onto
property (such as the lake in this case) that you control
No. 12-2425                                               11

access to (for the defendants had to give the kids they
were shepherding permission to enter the lake). Had
Kamonie told Gosz that although he was a poor
swimmer he was going to try to swim across the lake, and
she had replied “proceed at your own risk,” her conduct
would have been reckless endangerment; for she had
brought him to a place of danger and he was in her
charge yet she would be virtually daring him to risk his
life. That is not this case. Gosz didn’t know that Kamonie
was a poor swimmer, or that if he was he would neverthe-
less wade too far into the lake, or that he or any other
student was in significant danger. And Gosz and Estes
did take some steps to try to ensure the children’s safety.
They sent permission slips home; the slips referred to
“playing in the water”; there were teacher-chaperones
accompanying Gosz—she was not the only adult at the
scene and she told one of them, Pitta, to watch Kamonie
and his playmates while they played in the water. And
Pitta did so, though he lacked the skills he would have
needed to have a good chance of saving Kamonie from
drowning. Gosz was as we said negligent; she was not
reckless. And likewise Estes.
  Some cases say or assume that due process is violated
in a case in which the state endangers a person only if
the state’s action “shocks the conscience.” County of
Sacramento v. Lewis, supra, 523 U.S. at 846; Jackson v.
Indian Prairie School District 204, 653 F.3d 647, 654-55 (7th
Cir. 2011); Okin v. Village of Cornwall-On-Hudson Police
Department, 577 F.3d 415, 430-32 (2d Cir. 2009); see also
Miller v. City of Philadelphia, 174 F.3d 368, 375-76 (3d Cir.
1999). The expression has been part of the legal lexicon at
12                                              No. 12-2425

least since 1804, see Coles v. Trecothick, (1804) 9 Ves. 234,
246 (Ch.), and was picked up by the Supreme Court
a half century later, in Byers v. Surget, 60 U.S. 303, 311
(1856). But its first modern appearance, and its most
influential, was in Justice Frankfurter’s opinion for the
Supreme Court in Rochin v. California, 342 U.S. 165, 172,
173 (1952), where he used the phrase to classify a
police search for illegal drugs by means of a stomach
pump as a violation of due process. It’s not a very illumi-
nating expression, and we don’t know what it adds
to recklessness. Reckless indifference to a child’s safety
would doubtless shock the conscience, but County of
Sacramento v. Lewis, supra, 523 U.S. at 849, says that negli-
gence doesn’t.
   References to “shocks the conscience” illustrate the
tendency of some courts to “complexify” analysis in this
class of cases needlessly, as it seems to us. We have
already indicated our unhappiness with the use of “affir-
mative act” and “shocks the conscience” as touchstones
of liability. Neither are we happy with the suggestion in
Phillips v. County of Allegheny, supra, 515 F.3d at 241—a
suggestion in tension with County of Sacramento v.
Lewis—that due process can be violated by “gross negli-
gence or arbitrariness that indeed shocks the conscience.”
(What for example does “arbitrariness” mean in this
context?) And we get little out of the test suggested
for cases of this sort in Currier v. Doran, supra, 242 F.3d
at 918 (and earlier Tenth Circuit cases on which it re-
lies): “To make out a proper danger creation claim, a
plaintiff must demonstrate that (1) the charged state
entity and the charged individual actors created the
No. 12-2425                                              13

danger or increased plaintiff’s vulnerability to the
danger in some way; (2) plaintiff was a member
of a limited and specifically definable group; (3) defen-
dants’ conduct put plaintiff at substantial risk of serious,
immediate, and proximate harm; (4) the risk was
obvious or known; (5) defendants acted recklessly in
conscious disregard of that risk; and (6) such conduct,
when viewed in total, is conscience shocking.”
  Shouldn’t it be enough to say that it violates the
due process clause for a government employee acting
within the scope of his employment to commit a
reckless act that by gratuitously endangering a person
results in an injury to that person? Are there not virtues
in simplicity, even in law?
  With our simple formula (which incidentally dispenses
with the jargony term “deliberate indifference”), all
that remains in doubt is the choice between the civil
and criminal standards of recklessness—between the
known versus the merely obvious risk—but that
difference as we have said has little practical significance
in a litigation and none in this litigation.
                                                 A FFIRMED.




                          12-27-12
