           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 21, 2009

                                       No. 06-41579                    Charles R. Fulbruge III
                                                                               Clerk

CHRISTY CARTY, Individually and as Next Friend for Bryce Carty, Justice
Carty and Maddy Carty, Minors and as Representative of the Estate of
Jimmy Carty Jr, Deceased

                                                   Plaintiff - Appellee
v.

COMMANDER ALBERT RODRIGUEZ; LIEUTENANT ERWIN BALLARTA

                                                   Defendants - Appellants




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 2:06-CV-138


Before DeMOSS, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff Christy Carty brought suit individually, as next friend for her
children, and as the representative of her late husband’s estate against
defendants Commander Albert Rodriguez (“Rodriguez”) and Lieutenant Erwin
Ballarta (“Ballarta”), who are both officers of the Texas Department of Public
Safety (“DPS”).      DPS is a law enforcement agency in the State of Texas.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Defendant Rodriguez is the Commander of the DPS Training Academy, and
Defendant Ballarta is the Defense Tactics Coordinator for the DPS Training
Academy. Defendants moved to dismiss the complaint on qualified immunity
grounds, which the district court denied. See Carty v. Tex. Dep’t of Public Safety,
No. 2:06-CV-138, 2006 WL 3332589 (E.D. Tex. Oct. 6, 2006). For the reasons set
forth below, we vacate the district court’s order and remand for further
proceedings.
                                            1.
      Plaintiff’s late husband, Jimmy Carty, was a member of a training class
for the Texas DPS, and enrolled in the DPS Training Academy in Austin, Texas.
He was injured as part of the DPS training called the “active countermeasures
drill” on May 19, 2005. He sustained head and brain injuries during this drill,
and died as a result of his injuries on May 26, 2005.
      Plaintiff brought this suit against the individual state actor defendants
under 42 U.S.C. §§ 1983, 1985, and 1986.1 Specifically, plaintiff claims
defendants’ actions in the active countermeasures drill led directly to the head
injury and subsequent death of Jimmy Carty. This, she says, violated Jimmy
Carty’s constitutional right to bodily integrity and life guaranteed by the
Fourteenth Amendment to the United States Constitution. Moreover, plaintiff
contends that defendants knew of the high risks involved with the drill, and
decided to turn a blind eye to those risks. Plaintiff further contends that because
defendants knew of the risks involved, they had a duty under the Fourteenth
Amendment to establish and implement policies, practices, and procedures
designed to protect Jimmy Carty’s substantive due process rights to bodily
integrity and life.




      1
        Plaintiff also asserted claims against DPS and two manufacturers of protective gear
worn by Carty during the drill. The district court granted DPS’s motion to dismiss on
sovereign immunity grounds (a ruling not at issue in this appeal), and plaintiff has since
reached a settlement with the protective gear manufacturers.

                                            2
      Defendants answered, denying plaintiff’s factual allegations, asserting a
defense of qualified immunity, and moving to dismiss plaintiff’s complaint for
failure to state a claim upon which relief can be granted pursuant to Federal
Rule of Civil Procedure 12(b)(6). Defendants also filed a motion requesting that
the district court require plaintiff to file a reply under Rule 7(a) tailored to their
assertions of qualified immunity. Plaintiff filed an amended complaint (styled
as the “First Amended Complaint”) and a response to defendants’ Rule 7(a)
motion, asserting that the first amended complaint met the pleading
requirement of a Rule 7(a) reply under our court’s decision in Schultea v. Wood,
47 F.3d 1427, 1433 (5th Cir. 1995) (en banc). Defendants objected that plaintiff’s
complaint did not adequately comply with the Rule 7(a) reply requirement. The
district court did not address the defendants’ Rule 7(a) motion for a reply.
Instead, the district court denied defendants’ motion to dismiss the complaint,
finding that its factual allegations alleged that defendants violated Carty’s
clearly established constitutional rights. Defendants brought this interlocutory
appeal from the district court’s rulings.
                                          2.
      Federal Rule of Civil Procedure 8 sets forth the basic rules for pleading in
federal courts. Under Rule 8, a plaintiff suing a public official under § 1983
must file a short and plain statement of his claim for relief, a statement that
rests on more than conclusions alone. See Fed. R. Civ. P. 8(a); Schultea, 47 F.3d
at 1433. “When a public official pleads the affirmative defense of qualified
immunity in his answer, the district court may, on the official’s motion or on its
own, [under Rule 7(a)(7)], require the plaintiff to reply to that defense in detail.
By definition, the reply must be tailored to the assertion of qualified immunity
and fairly engage its allegations. A defendant has an incentive to plead his
defense with some particularity because it has the practical effect of requiring
particularity in the reply.” Schultea, 47 F.3d at 1434.




                                          3
      “Vindicating the immunity doctrine will ordinarily require such a reply,
and a district court’s discretion not to do so is narrow indeed when greater detail
might assist. The district court may ban discovery at this threshold pleading
stage and may limit any necessary discovery to the defense of qualified
immunity. The district court need not allow any discovery unless it finds that
plaintiff has supported his claim with sufficient precision and factual specificity
to raise a genuine issue as to the illegality of defendant’s conduct at the time of
the alleged acts. Even if such limited discovery is allowed, at its end, the court
can again determine whether the case can proceed and consider any motions for
summary judgment under Rule 56.” Id. “Faced with spare details of claimed
wrongdoing by officials, trial courts ought routinely [to] require plaintiffs to file
a reply under Federal Rule of Civil Procedure 7(a) to qualified immunity
defenses.” Reyes v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999).
      Subsequent to our en banc decision in Schultea, the Supreme Court in
Crawford-El v. Britton, 523 U.S. 574 (1998), clarified an additional procedural
aspect of the qualified immunity defense, concluding that the federal courts may
not require that plaintiffs meet a heightened burden of proof to establish the
mental state element (such as improper motive) of a § 1983 claim. See id. at 592-
94. Rather, the plaintiff need only prove the defendant acted with the requisite
mental state to the extent ordinarily required in a civil action, both at summary
judgment and at trial. See id. at 600-01. The Supreme Court emphasized,
however, that a trial court “must exercise its discretion in a way that protects
the substance of the qualified immunity defense . . . so that officials are not
subjected to unnecessary and burdensome discovery or trial proceedings.” Id. at
597-98.   To this end, trial courts should utilize existing case management
procedures, such as requiring the filing of a Rule 7 reply or a more definite
statement under Rule 12(e), pre-discovery dismissal, narrowly tailoring
discovery, and summary judgment itself. Id. at 598-600. Thus, the Supreme
Court tacitly recognized and approved the reply procedure we outlined in


                                         4
Schultea. See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice &
Procedure § 1185, at 29-30 & n.7 (3d ed. 2004) (noting that the Supreme Court
in Crawford-El “recognized” the practice of requiring the plaintiff to file a Rule
7(a) reply under Schultea).
                                          3.
         Applying the foregoing principles to the present case, we conclude that the
district court exceeded its limited discretion in not addressing defendants’
motion for an order requiring plaintiff to file a reply to their answer raising the
defense of qualified immunity. Because plaintiff’s complaint attempts to state
a conscience-shocking deliberate indifference substantive due process claim
against defendants using mostly very general terms, there is a significant
possibility that greater particular factual detail in a reply will assist defendants
in testing plaintiff’s claims. See 5 Wright & Miller, supra, § 1185, at 33 (3d ed.
2004) (“In certain instances an additional pleading by the plaintiff may be
helpful to the defendant in laying the groundwork for a motion to test the
sufficiency of the claim or defense under Rules 12(b)(6) or 12(c) or to dispose of
the entire litigation without a trial by seeking summary judgment under Rule
56.”).
         For example, plaintiff’s amended complaint alleges that defendants were
deliberately indifferent to Carty’s constitutional rights because they developed
and continued to use the active countermeasures drill despite having knowledge
that it caused 121 prior “traumatic brain injuries” over the course of 28 years.
The phrase “traumatic brain injury” describes a wide array of injuries -- with a
corresponding range of severity. Whether these injuries involved only headaches
or involved more severe injuries, such as amnesia or death, directly bears on
defendants’ state of mind. Moreover, the complaint does not specifically allege
when these injuries occurred, other than to allege that they occurred between
1978 and 2005.        Whether these injuries largely occurred near the drill’s
inception, near the time of Jimmy Carty’s death, or were generally dispersed


                                          5
throughout the drill’s use may affect the deliberate indifference analysis.
Additionally, the amended complaint does not describe whether or how
defendants responded to these injuries. Certainly, whether defendants took any
actions to guard against the risk of harm in light of these previous injuries
speaks to their state of mind at the time of Carty’s injury. Finally, the amended
complaint does not specifically allege how Officers Ballarta and Rodriguez were
involved in the administration of the drill that injured Carty, other than to
allege that they developed and maintained policies continuing the drill’s use.2
       Because greater factual specificity in plaintiff’s allegations might assist in
resolving the qualified immunity issue early in the proceedings, the district court
erred in not requiring plaintiff to file a reply under Rule 7(a) before ruling on
defendants’ motion to dismiss. See Schultea, 47 F.3d at 1434 (finding that the
district court erred in denying qualified immunity without first requiring the
filing of a Rule 7(a) reply when the complaint’s allegations were not sufficiently
specific); Reyes, 168 F.3d at 163 (same). Accordingly, we remand to the district
court with instructions that it order plaintiff to file a Rule 7(a) reply in
accordance with our opinion in Schultea, but do not otherwise cabin its
discretion, recognized in Crawford-El and Schultea, to utilize other techniques
in the management of this case.             Contrary to our dissenting colleague, we
intimate no opinion on whether the plaintiff’s reply will sufficiently allege
nonconclusory evidentiary facts stating a violation of a constitutional right
clearly established or evident at the time of Carty’s fatal injury. See Reyes, 168
F.3d at 161 (observing that a court “move[s] too quickly” when it decides a


       2
          Although we hold that the district court should have required plaintiff to plead her
allegations with more specificity in a Rule 7(a) reply, we note that “deliberate indifference” is
a mental element as to which plaintiff cannot be held to a heightened burden of proof. The
Supreme Court in Crawford-El approvingly cited then-Judge R.B. Ginsburg’s majority opinion
in Martin v. D.C. Metro. Police Dep’t, 812 F.2d 1425 (D.C. Cir. 1987). See Crawford-El, 523
U.S. at 599. In Martin, the court observed that “[a] government official’s motive or purpose
is often an essential element of a plaintiff’s prima facie constitutional claim,” and specifically
listed the deliberate indifference standard under the Eighth Amendment as an example of
such an element. See Martin, 812 F.2d at 1433 n.17.

                                                6
qualified immunity issue before requiring the plaintiff to file a reply when
“[f]aced with sparse details of claimed wrongdoing by officials”).
                                          ***
       For the foregoing reasons, we VACATE the district court’s order denying
qualified immunity and REMAND for further proceedings consistent with this
opinion.3




       3
         We also lift the previous order of a panel of this court, filed December 22, 2006,
staying the district court’s Docket Control Order and Amended Discovery Order.

                                            7
                                      06-41579

OWEN, Circuit Judge, dissenting.
      I agree that the district court’s order denying official immunity should be
vacated. The only question is whether this case should be remanded for further
proceedings or judgment should be rendered for the defendants.
      Carty was given the opportunity to amend her pleadings in district court
and did amend in response to the defendants’ motion for an order pursuant to
Rule 7(a)(7)1 requiring Carty to file a reply that provided more specific
allegations in response to the answer in which the defendants asserted official
immunity. The facts alleged in Carty’s amended complaint do not support a
claim for a substantive due process violation because the law is not clearly
established that state actors engaged in training law enforcement personnel
violate the substantive due process provision of the Constitution if they are
aware that a training exercise has had a high incidence of injury and continue
to employ that method of training. Additionally, any mistake the officers in this
case may have made in discerning what the law required in this regard was
reasonable in light of the Supreme Court’s decision in Collins v. City of Harker
Heights.2 Accordingly, I would not remand.


                                         I
      Erwin Ballarta and Albert Rodriguez have been sued in their individual
capacities for their conduct as Texas Department of Public Safety employees who
train recruits. Carty alleges that these defendants were deliberately indifferent
to her husband’s right to bodily integrity and life by continuing to conduct active
countermeasure drills when the defendants knew that in the past, numerous




      1
      F    ED .R.CIV .P.   7(a)(7).
      2
          503 U.S. 115 (1992).

                                         8
                                           06-41579

candidates suffered head injuries when participating in this training. 3 Ballarta
and Rodriguez are entitled to official immunity if it was not clearly established
at the time of the injuries to the decedent Jimmy Carty, Jr. that their conduct
was unconstitutional.4
       It is not clearly established law that a state employer engaged in training
employees as peace or police officers violates the due process clause of the
Constitution if the training involves risk, even a substantial risk, of serious
bodily harm.5      Nor is it clearly established law that a claim for deliberate
indifference that shocks the conscious can be stated when the injured party is
an employee and is not in custody or the equivalent of custody.6
       An allegation that there has been deliberate indifference that resulted in
injury will not suffice. The contours of the constitutional right must be clear.
The Supreme Court has “emphasized . . . ‘that the right the official is alleged to
have violated must have been ‘clearly established’ in a more particularized, and
hence more relevant, sense: The contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that



       3
         In her amended complaint, Carty alleges, “[t]he arrest and control tactics drill consists
of a fighting exercise, known as active countermeasures. By allowing recruits to punch or
kick, the exercise is like common street fighting along with a boxing element. Since 1978, at
least 121 DPS recruits have suffered head injuries because of the drill.” Carty’s amended
complaint also describes the drills as “hand-to-hand combat . . . between two DPS officer
candidates. The drill was toe-to-toe full force simulation training which involved fighting
between the candidates which resulted in numerous head injuries to officer candidates.”
       4
         See generally Pearson v. Callahan, 129 S.Ct. 808, 813 (2009) (“[P]etitioners are
entitled to qualified immunity on the ground that it was not clearly established as the time
of the search that their conduct was unconstitutional.”).
       5
        See Waybright v. Frederick County, 528 F.3d 199 (4th Cir. 2008); Feirson v. District
of Columbia, 506 F.3d 1063, 1067 (D.C. Cir. 2007); Moore v. Guthrie, 438 F.3d 1036, 1038 (10th
Cir. 2006).
       6
         See Collins v. City of Harker Heights, 503 U.S. 115, 127-28(1992); but see Eddy v.
Virgin Islands Water and Power Authority, 256 F.3d 204, 213 (3d Cir. 2001).

                                                9
                                          06-41579

right.’” 7 In the context of excessive force, the Supreme Court held, “there is no
doubt that Graham v. Connor 8 . . . clearly establishes the general proposition
that use of force is contrary to the Fourth Amendment if it is excessive under
objective standards of reasonableness. Yet that is not enough.”9
      In the present case, it is not enough that it is clearly established that a
substantive due process claim based on culpability greater than negligence but
falling short of intentional conduct will fail unless there has been deliberate
indifference that shocks the conscience.10 The “salient question . . . is whether
the state of the law in [2005] gave respondents fair warning that their alleged
treatment of [Carty] was unconstitutional.” 11 The state of the law did not and
does not give “fair and clear warning” 12 that the conduct at issue in this appeal
was unlawful.
                                               II
      The Supreme Court’s decision in Collins v. City of Harker Heights 13 should
be our starting point, in light of the facts it considered. Larry Collins was
employed by a city’s sanitation department.14 He was asphyxiated after entering
a manhole in an attempt to unstop a sewer line.15 His widow alleged in her suit


      7
        Saucier v. Katz, 533 U.S. 194, 202 (2001) (quoting Anderson v. Creighton, 483 U.S.
635, 640 (1987)).
      8
          490 U.S. 386 (1989).
      9
          Saucier, 533 U.S. at 201-02 (emphasis added).
      10
           See County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998).
      11
           Hope v. Pelzer, 536 U.S. 730, 741 (2002).
      12
           Id.
      13
           503 U.S. 115 (1992).
      14
           Id. at 117.
      15
           Id.

                                              10
                                        06-41579

against the city, brought under 42 U.S.C. § 1983, “that a prior incident had given
the city notice of the risks of entering the sewer lines and that the city had
systematically and intentionally failed to provide the equipment and training
required by a Texas statute.”16
      The Supreme Court said that “[f]airly analyzed,” Collins “advances two
theories: that the Federal Constitution imposes a duty on the city to provide its
employees with minimal levels of safety and security in the workplace, or that
the city’s ‘deliberate indifference’ to Collins’ safety was arbitrary government
action that must ‘shock the conscience’ of federal judges.” 17 The Supreme Court
found neither theory sustainable, first explaining, “[n]either the text nor the
history of the Due Process Clause supports petitioner’s claim that the
governmental employer’s duty to provide its employees with a safe working
environment is a substantive component of the Due Process Clause.” 18 The
Court further concluded, “‘[T]he Due Process Clause of the Fourteenth
Amendment was intended to prevent government ‘from abusing [its] power, or
employing it as an instrument of oppression.’’” 19               The Court observed,
“Petitioner’s submission that the city violated a federal constitutional obligation
to provide its employees with certain minimal levels of safety and security is
unprecedented.” 20 The Court distinguished cases in which it had held “that
apart from the protection against cruel and unusual punishment provided by the
Eighth Amendment, the Due Process Clause of its own force requires that



      16
            Id. at 117-18.
      17
            Id. at 126.
      18
            Id.
       19
          Id. (quoting DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S. 189, 196
(1989)) (alterations in original).
      20
            Id. at 127.

                                            11
                                       06-41579

conditions of confinement satisfy certain minimal standards for pretrial
detainees.” 21     The Supreme Court pointedly stated, “[t]he ‘process’ that the
Constitution guarantees in connection with any deprivation of liberty thus
includes a continuing obligation to satisfy certain minimal custodial standards,”
and it concluded, “Petitioner cannot maintain, however, that the city deprived
Collins of his liberty when it made, and he voluntarily accepted, an offer of
employment.” 22
      In Collins, the Supreme Court further held, “[w]e also are not persuaded
that the city’s alleged failure to train its employees, or to warn them about
known risks of harm, was an omission that can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense.” 23          The Court
reasoned that “we have previously rejected claims that the Due Process Clause
should be interpreted to impose federal duties that are analogous to those
traditionally imposed by state tort law.” 24      This reasoning, the Court said,
“applies with special force to claims asserted against public employers because
state law, rather than the Federal Constitution, generally governs the substance
of the employment relationship.” 25 The Court continued,
                        Our refusal to characterize the city’s alleged
                 omission in this case as arbitrary in a constitutional
                 sense rests on the presumption that the administration
                 of government programs is based on a rational
                 decisionmaking process that takes account of competing
                 social, political, and economic forces.       Decisions
                 concerning the allocation of resources to individual


      21
           Id. (citations omitted).
      22
           Id. at 127-28.
      23
           Id. at 128.
      24
           Id.
      25
           Id.

                                           12
                                          06-41579

                  programs, such as sewer maintenance, and to
                  particular aspects of those programs, such as the
                  training and compensation of employees, involve a host
                  of policy choices that must be made by locally elected
                  representatives, rather than by federal judges
                  interpreting the basic charter of Government for the
                  entire country. The Due Process Clause “is not a
                  guarantee against incorrect or ill-advised personnel
                  decisions.”26
The Supreme Court additionally admonished that the Due Process Clause does
not “guarantee municipal employees a workplace that is free of unreasonable
risks of harm.”27
       The training of law enforcement cadets “involve[s] a host of policy choices
that must be made by locally elected representatives.” 28               The training law
enforcement officials receive will almost certainly differ from the training of
civilian employees in many respects, including exposure to risks of harm. There
are competing considerations in deciding what drills and exercises should be
employed in attempting to ensure that law officers are prepared if they are
physically attacked or become engaged in an altercation while performing their
duties. Neither the Supreme Court nor this court has had occasion to consider
whether “ill-advised personnel decisions” 29 in this context violate a constitutional
right to life and bodily integrity, and if so, under what circumstances. It simply
cannot be said that a constitutional right in this area was clearly established at
the time Carty was injured.




       26
            Id. 128-29 (quoting Bishop v. Wood, 426 U.S. 341, 350 (1976)) (internal citations
omitted).
       27
            Id. at 129.
       28
            Id.
       29
            Id.

                                              13
                                     06-41579

      Although the Supreme Court did note in Collins that the plaintiff had
failed to “allege that [her husband’s] supervisor instructed him to go into the
sewer when the supervisor knew or should have known that there was a
significant risk that he would be injured,” 30 the Court did not say what the
import would have been if there were such allegations. The defendants in the
present case could have reasonably deduced from any one of several passages in
the Collins decision that requiring cadets to engage in combat with one another
as part of their training, even though injuries had previously occurred, did not
rise to the level of a constitutional violation. To the extent the defendants were
mistaken about the reach of Collins, that mistake was reasonable.


      I do not suggest that there must be a judicial decision “on all fours” before
the law is clearly established for the purposes of official immunity. The Supreme
Court observed in Hope v. Pelzer that “officials can still be on notice that their
conduct violates established law even in novel factual circumstances.” 31 But the
Supreme Court further explained in Hope that the “salient question” “is whether
the state of the law [when the act or omission occurred] gave [the officials] fair
warning that their alleged treatment of [the plaintiff] was unconstitutional.”32
Fair warning may not exist “when an earlier case expressly leaves open whether
a general rule applies to the particular type of conduct at issue.” 33 In such cases,
“a very high degree of prior factual particularity may be necessary.” 34            I
respectfully submit that the Supreme Court’s decision in Collins v. City of


      30
           Id. at 125.
      31
           Id. at 741.
      32
           Id.
      33
           Id. at 740-41.
      34
           Id. at 741.

                                         14
                                          06-41579

Harker Heights 35 at least left open whether conduct like that at issue in the
present case violates the Constitution.
      The facts at issue in Hope and the Supreme Court’s approach in resolving
that case are also instructive.36 Although it was clearly established law that the
Eighth Amendment prohibits cruel and unusual punishment, the Supreme
Court nevertheless considered precedent in this area in some detail before
concluding that the particular practice under consideration violated the Eighth
Amendment and that precedent gave the defendants fair warning that their
conduct violated the Constitution.37
                                           III
      Decisions of the circuit courts reflect, at best, a conflict. Only one, Eddy
v. Virgin Islands Water and Power Authority,38 arguably supports Carty’s
substantive due process claim and denial of official immunity.
      In Eddy, a public employee was sent to replace a switch on a high-voltage
line that was to remain electrified during the procedure.39 The employee was
given an ordinary metal wrench rather than an insulated one and was not given
cotton clothing, as required by federal regulations.40 He was injured when his
wrench slipped, passed near an insulator, and an ensuing fireball engulfed
him.41 The Third Circuit noted that the “record was sufficient to show that the
defendants knew that Eddy ‘would face a risk of almost certain injury if he

      35
           503 U.S. 115 (1992).
      36
           536 U.S. at 733-41.
      37
           Id. at 737-38, 741-42.
      38
           256 F.3d 204 (3d Cir. 2001).
      39
           Id. at 207.
      40
           Id.
      41
           Id.

                                            15
                                          06-41579

performed the work’”42 and held that this “alleged a violation of a clearly
established constitutional right” based on the “‘shocks the conscience’
standard.”43
      But at least three other circuit court decisions conflict with Eddy. In
Moore v. Guthrie, a police officer lost fifty-seven percent of the vision in one of
his eyes when a bullet “flew up beneath his police officer’s ‘riot helmet’ during
an intense ‘live fire’ training exercise with other police officers.” 44 Although the
chief of police had been told by three different instructors on different occasions
that the manufacturer of the cartridges designed for these training exercises
required its own face masks and protective head gear to be worn, the chief did
not authorize the purchase of the manufacturer’s gear.45 Instead, he authorized
the use of riot helmets during the firearms training even though the helmets did
not protect the neck or throat and left a gap around the face where a bullet could
enter.46
      Citing the Supreme Court’s decision in Collins v. City of Harker Heights,47
the Tenth Circuit held that, as a government employee, “Plaintiff cannot be said
to have a [substantive due process] ‘right to bodily integrity in a safe work
environment.’”48 That court reasoned, “‘[n]either the text nor the history of the
Due Process Clause supports petitioner’s claim that the governmental
employer’s duty to provide its employees with a safe working environment is a

      42
           Id. at 211 n.5.
      43
           Id. at 213.
      44
           438 F.3d 1036, 1038 (10th Cir. 2006).
      45
           Id.
      46
           Id.
      47
           503 U.S. 115, 126 (1992).
      48
           Moore, 438 F.3d at 1040.

                                              16
                                            06-41579

substantive component of the Due Process Clause.’” 49 The Tenth Circuit
additionally reviewed whether the complained-of conduct shocked the
conscience, “out of an abundance of caution,”50 concluding that it did not.
      The Tenth Circuit referred to “three basic principles . . . in evaluating
substantive due process claims: (1) the need for restraint in defining [the] scope
[of such claims]; (2) the concern that § 1983 not replace state tort law; and (3) the
need for deference to local policymaking bodies in making decisions impacting
upon public safety.” 51 The court explained that [w]hile length of deliberation
may be a factor in a conscience-shocking analysis, it cannot replace the over-
arching need for deference to local policy-making bodies. Were this not so and
any long-deliberated decision (resulting in a later injury) were called conscience-
shocking, substantive due process violations would become a substantial and
unnecessary substitute to state tort law.” 52 The Tenth Circuit further concluded
that “[a]lthough Plaintiff does not need to find a case with an identical factual
situation, he still must show legal authority which makes it ‘apparent’ that ‘in
the light of pre-existing law’ a reasonable official . . . would have known that
having police officers wear riot helmets rather than [the manufacturer’s gear]
would violate their substantive due process right of bodily integrity.” 53 Because
other courts had “declined to find a violation of substantive due process in
circumstances similar to, or more shocking than, that alleged by Plaintiff,” the




      49
           Id. (quoting Collins, 503 U.S. at 126).
      50
           Id.
      51
           Id. at 1040-41.
      52
           Id. at 1041 n.1 (citation omitted).
      53
           Id. at 1042.

                                                 17
                                           06-41579

court held that it was not “clearly established” that the defendants violated a
constitutional right.54
      The Fourth Circuit’s decision in Waybright v. Frederick County 55 also
conflicts with Eddy.         In Waybright, a fire department recruit died after
participating in rigorous physical exercises conducted outdoors during hot
weather.56 The supervising officer had told the recruits he did not like to hear
“I can’t” and that he did not like “quitters.” 57 The supervisor did not bring water,
means of communication, transportation or first-aid equipment to the area
where the exercises occurred. 58 “Many of the recruits struggled during the
session and some experienced disorientation and pronounced exhaustion.” 59 One
of the recruits, Waybright, did not receive medical attention when he began to
look sick and pale or even after he lost consciousness.60 He was eventually taken
by an ambulance to an emergency room where he died shortly thereafter of heat
stroke.61
      The Fourth Circuit concluded that “the case law as a whole is against a
general rule that time to deliberate transforms negligent error into
constitutionally shocking conduct.” 62 That court also analyzed the Supreme



      54
           Id. at 1043.
      55
           528 F.3d 199 (4th Cir. 2008).
      56
           Id. at 202.
      57
           Id.
      58
           Id.
      59
           Id.
      60
           Id.
      61
           Id.
      62
           Id. at 206.

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Court’s decision in Collins as “holding that due process does not require
governmental employers to provide a safe workplace, but that state tort law
may.” The Fourth Circuit further concluded that in the employer/employee
contest, Collins “necessarily rejected the time to deliberate theory—for
employers most often have time to deliberate about workplace conditions.” 63 The
Waybright court reasoned that “[t]he underlying concern in Collins was that
constitutional law would push state tort law aside whenever a state or local
government acted as employer, thus placing ‘a host of policy choices that must
be made by locally elected representatives’ with ‘federal judges interpreting the
basic charter of Government for an entire country.’” 64       The Fourth Circuit
explained that “by finding a state-created danger here, we might well inject
federal authority into public school playground incidents, football (or even ballet)
practice sessions, and class field trips, not to mention training sessions for
government jobs that require some degree of physical fitness.” 65        The court
continued, “[s]ometimes practice is demanding because games are demanding,
and training is demanding because jobs are demanding, and how best to conduct
these sessions can rarely be the focus of a constitutional claim.” 66        “[T]he
displacement of state law with federal policies would be difficult to overstate.”67
The court, therefore, concluded that the conduct at issue did not shock the




      63
           Id.
      64
           Id. at 208 (citation omitted).
      65
           Id. (emphasis added).
      66
           Id.
      67
           Id.

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conscience.68 “Instruction that seems overzealous, and precautions that seem
insufficient, do not reach that level.”69
       The District of Columbia Circuit has held that there was no
conscience-shocking behavior when a police officer sustained serious neck and
lower back injuries during an “attack exercise” as part of a police training
course.70 The injured officer testified that it was the most serious assault he had
ever encountered in over twenty years on the police force, and a training expert
testified that the speed, intensity, and force was grossly excessive, without
justification, and outside the scope of reasonable and effective training
practices.71 Another expert said that if the plaintiff’s description of the facts was
true, “then you have misconduct on every officer that was present and all the
instructor staff.” 72 The District of Columbia Circuit nevertheless held that “even
a finding of negligence would be a stretch,” 73 although it did hint that if there
had been a higher rate of prior injuries, it might have viewed the case
differently.74
       In sum, there is simply no clear consensus among the circuit courts as to
how the substantive due process clause applies to situations in which an officer



       68
            Id.
       69
            Id. at 209.
       70
            Feirson v. District of Columbia, 506 F.3d 1063, 1067 (D.C. Cir. 2007).
       71
            Id.
       72
            Id.
       73
            Id.
       74
         See id. (“Our conclusion is bolstered by the exercise’s extremely low rate of injury.
About three months prior to Feirson’s injuries, more than 1300 officers had been trained and
only seven reported significant injuries. These ‘significant’ injuries included a broken foot, a
knee injury, a broken finger, two instances of bruised ribs, and two instances of dental
trauma.”).

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has been injured during training.            In 2005, when Carty was injured and
tragically died, the law was not “clearly established.” When, as here, “judges . . .
disagree on a constitutional question, it is unfair to subject police to money
damages for picking the losing side of the controversy.”75
       We must also bear in mind that the “fair warning” requirement in the
qualified immunity standard “is identical” to the degree of notice required in a
criminal prosecution.76 I respectfully submit that the precedent extant when the
face-to-face combat drills occurred would not support a criminal prosecution of
the officials who are being sued in the present case.
                                         *    *     *
       For the foregoing reasons, I respectfully dissent.




       75
         Pearson v. Callahan, No. 07-751, 2009 WL 128768, at *14 (U.S. Jan. 21, 2009)
(quoting Wilson v. Layne, 526 U.S. 603, 618 (1999)).
       76
         Hope v. Pelzer, 536 U.S. 730, 740 (2002) (discussing United States v. Lanier, 520 U.S.
259, 269 (1997)).

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