                                                                                     FILED
                                                                         United States Court of Appeals
                                        PUBLISH                                  Tenth Circuit

                      UNITED STATES COURT OF APPEALS                            August 12, 2016

                                                                             Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                               Clerk of Court
                         _________________________________

ESTATE OF JIMMA PAL REAT; JAMES
PAL REAT; REBECCA AWOK DIAG;
RAN PAL; CHANGKUOTH PAL;
JOSEPH KOLONG,

      Plaintiffs - Appellees,

v.                                                             No. 15-1001

JUAN JESUS RODRIGUEZ, individually,

      Defendant - Appellant.
                      _________________________________

                                      ORDER
                         _________________________________

Before TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HARTZ,
GORSUCH, HOLMES, MATHESON, BACHARACH, PHILLIPS, McHUGH, and
MORITZ, Circuit Judges.
                    _________________________________

       This matter is before the court on the appellees’ Petition for Panel Rehearing or

Rehearing En Banc. We also have a response from the appellant.

       Upon consideration, the request for panel rehearing is granted in part and to the

extent of the changes made in the attached amended decision. The request for panel

rehearing is otherwise denied.

       Both the appellees’ petition and the amended panel decision were also circulated

to all the active judges of the court. A poll was called and a majority voted to deny the
request for en banc reconsideration. See Fed. R. App. P. 35(a). Consequently, the en banc

petition is denied. Judges Lucero, Hartz, Phillips and Moritz would grant the petition for

en banc rehearing.

       The clerk of court is directed to file the amended panel decision effective the date

of this order.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




                                             2
                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                              August 12, 2016
                                       PUBLISH              Elisabeth A. Shumaker
                                                                Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 ESTATE OF JIMMA PAL REAT;
 JAMES PAL REAT; REBECCA
 AWOK DIAG; RAN PAL;
 CHANGKUOTH PAL; and JOSEPH
 KOLONG,

             Plaintiffs - Appellees,
       v.                                             No. 15-1001
 JUAN JESUS RODRIGUEZ,
 individually,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                 (D.C. NO. 1:12-CV-02531-REB-MEH)


Eric M. Ziporin (Jennifer F. Kemp with him on the briefs), Senter Goldfarb &
Rice, L.L.C., Denver, Colorado, for Appellant.

Erica Grossman (John R. Holland with her on the brief), Holland, Holland
Edwards & Grossman, P.C., Denver, Colorado, for Appellees.


Before TYMKOVICH, Chief Judge, MURPHY, and BACHARACH, Circuit
Judges.


TYMKOVICH, Chief Judge.
      This case arises out of the fatal shooting of Jimma Pal Reat at a Denver

intersection. Reat was killed after Denver 911 operator Juan Rodriguez directed

him back into the path of his armed assailants. His estate sued the 911 operator,

alleging civil rights claims pursuant to 42 U.S.C. § 1983 and various state law

claims.

      Rodriguez moved for summary judgment on all claims against him on the

basis of qualified immunity. The district court granted summary judgment in his

favor on all constitutional claims except for a Fourteenth Amendment substantive

due process claim based on a theory of state-created danger. Under that claim,

Reat’s Estate contends Rodriguez used his governmental authority to subject him

to the callous shooting that caused Reat’s death.

      We conclude the law was not clearly established such that a reasonable 911

operator would have known his conduct violated Reat’s constitutional rights.

Because we decide only that the law was not clearly established, we do not opine

on whether Rodriguez violated Reat’s constitutional rights. We therefore reverse

and remand for entry of summary judgment in favor of Rodriguez.

                                I. Background

      The facts of this case are tragic. At 4:12 a.m. on April 1, 2012, Ran Pal

called 911 to report that several men had thrown a bottle and broken the rear

windshield of the car he was driving. He told Operator Rodriguez that although

the attack had occurred at Tenth Avenue and Sheridan Boulevard in Denver, he

                                        -2-
and his passengers had fled to safety in the nearby city of Wheat Ridge on the

west side of Sheridan Boulevard.

      For reasons that remain unclear, Rodriguez told Pal that because the attack

had occurred in Denver, he needed to return to the city in order to receive help

from the police. At first, Pal refused to return. He told Rodriguez he was in a

state of shock, needed time to recover, and did not want to drive. Pal pleaded

with Rodriguez to send help to his current location. Over the course of the

fourteen-minute call, Pal told the operator at least six times that he was injured, in

shock, and afraid. Still, Rodriguez insisted the police could not help unless he

returned to Denver. About three minutes into the call, Pal finally agreed. He

remained on the phone with Rodriguez as he drove.

      On his way back to Denver, Pal fleshed out the details of the assault on the

call. He explained that he, his brother, cousin, and a friend had been driving

through Denver when a red jeep pulled up next to them. While both cars were

stopped at a red light, the men in the jeep threw bottles and bottle rockets at Pal’s

car, breaking the windshield. Shards of glass injured Pal’s hand and face. He

told Rodriguez he had gotten a partial license plate number as the assailants sped

off northbound on Sheridan Boulevard. Pal continued to tell the operator he was

in shock. Rodriguez asked where Pal was, and Pal replied that he was crossing

Sheridan on Twenty-Ninth Avenue. Rodriguez instructed him to stop there, and




                                          -3-
continued to ask questions to determine whether an ambulance was necessary.

Rodriguez failed to dispatch an ambulance or the police at this time.

       About eight minutes into the call, Pal revealed to Rodriguez that the

assailants had brandished a gun. Rodriguez asked questions about the size, color,

and type of gun. He also asked more questions about the attackers, including

their race and what they had been wearing. Pal told the operator that four or five

Hispanic men had gotten out of the car and hurled forty-ounce beer bottles at his

vehicle. He told Rodriguez he had fled the scene when his brother urged him to

do so because the attackers were armed. After questioning the victims about

whether they had been drinking, Rodriguez confirmed that Pal was still at

Twenty-Ninth Avenue and Sheridan Boulevard. He told Pal to pull over and wait

there for the officers whom he would dispatch. Rodriguez also instructed Pal to

turn on his hazard lights so that the police could easily locate the vehicle.

       About ten minutes into the call, another man in the car picked up the phone.

The man repeated that they were all in shock and scared, and asked whether

police were on their way to provide help. Though Rodriguez indicated he had

sent the police, he in fact had not. Rodriguez asked that the phone be handed

back to Pal. Rodriguez then had Pal confirm that his hazard lights were on, and

reiterated that Pal needed to wait at that location. He warned Pal, “if you see

them come back, I need you to call us right away at 911.” Aplt. App., Vol. III, at

281.

                                          -4-
       Seven seconds later, Pal shouted, “They’re back, they’re back[!]” Id. at

262. Pal handed the phone to someone else, who told Rodriguez that the men

were shooting. Pal picked the phone back up to report that his brother had been

shot. Over Pal’s screams, Rodriguez continued to ask what was happening.

Someone else picked up the phone and repeated the information. Rodriguez

asked who had been shot, where they were located, and whether the attackers

were still there. The speaker told Rodriguez that Reat was about to die and asked

whether he could send an ambulance. Rodriguez continued to ask questions about

the victim. Officers were dispatched to the scene about one minute after the

shooting. Reat died of his injuries.

                                   II. Analysis

      Reat’s Estate brought federal claims pursuant to 42 U.S.C. § 1983 and

various state law claims against Rodriguez and the City and County of Denver.

The defendants claimed they were protected by qualified immunity, arguing they

did not violate Reat’s rights under clearly established law. The district court

dismissed the claims against the City and County. Only claims against Rodriguez

proceeded.

      A. Qualified Immunity

             1. Clearly Established Law

      Qualified immunity exists to protect government officials “from liability for

civil damages insofar as their conduct does not violate clearly established statutory

                                         -5-
or constitutional rights of which a reasonable person would have known.” Dodds

v. Richardson, 614 F.3d 1185, 1191 (10th Cir. 2010) (quoting Pearson v.

Callahan, 555 U.S. 223, 231 (2009)). Qualified immunity is not only a defense to

liability, but immunity from suit; thus, “it is effectively lost if a case is

erroneously permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511, 526

(1985).

      Accordingly, in qualified immunity cases at the summary judgment stage, a

“plaintiff must demonstrate on the facts alleged (1) that the defendant violated his

constitutional or statutory rights, and (2) that the constitutional right was clearly

established at the time of the alleged unlawful activity.” Swanson v. Town of

Mountain View, 577 F.3d 1196, 1199 (10th Cir. 2009). In our review, “we need

only find that the plaintiffs failed either requirement” to establish qualified

immunity. Id. Because there are cases where we can more readily decide the law

was not clearly established before reaching the more difficult question of whether

there has been a constitutional violation, we may exercise discretion in deciding

which prong to address first. See Pearson, 555 U.S. at 236.

      This is such a case. We therefore confine our analysis of qualified

immunity to the second prong, inquiring only whether the law at the time of the

incident was “sufficiently clear that a reasonable official would have understood

that his conduct violated the right.” Currier v. Doran, 242 F.3d 905, 923 (10th

Cir. 2001). A right is clearly established when it is “sufficiently clear that every

                                            -6-
reasonable official would have understood that what he is doing violates that

right.” Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (internal quotation

marks and alteration omitted). To make this determination, we consider “either if

courts have previously ruled that materially similar conduct was unconstitutional,

or if a general constitutional rule already identified in the decisional law [applies]

with obvious clarity to the specific conduct at issue.” Buck v. City of

Albuquerque, 549 F.3d 1269, 1290 (10th Cir. 2008) (emphasis added). Usually,

this requires either “a Supreme Court or Tenth Circuit decision on point, or the

clearly established weight of authority from other courts must have found the law

to be as the plaintiff maintains.” Cordova v. City of Albuquerque, 816 F.3d 645,

658 (10th Cir. 2016) (quoting Clark v. Wilson, 625 F.3d 686, 690 (10th Cir.

2010)).

      But an earlier decision need not be “materially factually similar or identical

to the present case; instead, the contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing violates that right.”

Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014). We look to see if

“existing precedent . . . placed the statutory or constitutional question beyond

debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “The dispositive question

is whether the violative nature of particular conduct is clearly established,”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (emphasis in original)

(internal quotation marks omitted), so that “it would be clear to a reasonable

                                          -7-
officer that his conduct was unlawful in the situation he confronted,” Saucier v.

Katz, 533 U.S. 194, 202 (2001). This investigation must be undertaken with a

focus on the particular circumstances of the specific case before the court.

      In sum, plaintiffs must “demonstrate a substantial correspondence between

the conduct in question and prior law allegedly establishing that the defendant’s

actions were clearly prohibited.” Estate of B.I.C. v. Gillen, 761 F.3d 1099, 1106

(10th Cir. 2014) (quoting Trotter v. Regents, 219 F.3d 1179, 1184 (10th Cir.

2000)).

             2. State-Created Danger

      The Estate argues that Rodriguez created the danger that led to Reat’s death.

At the most general level, the parties agree that the state-created danger doctrine is

clearly established in this circuit.

      Two preconditions are necessary for the application of the state-created

danger doctrine: first, the state actor took an affirmative action, and, second, that

action led to private violence injuring the plaintiff. Id. at 1105. If these

preconditions are met, a plaintiff next must show:

             (1) the charged state . . . actor[] created the 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) defendant[’s] 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.


                                          -8-
Id.

      Though the elements of the state-created danger test are clearly established,

it also must be clear to which fact scenarios and government actors we apply the

test, and what types of conduct are “conscience shocking” under the sixth factor.

Green v. Post, 574 F.3d 1294, 1297 (10th Cir. 2009) (conscience-shocking conduct

is “difficult to define and requires an assessment of the totality of the

circumstances of each particular case” (internal quotation marks omitted)). But, as

we explained above, the application of an established test even to a new fact

pattern does not necessarily require a finding of qualified immunity. Casey v. City

of Federal Heights, 509 F.3d 1278, 1284 (10th Cir. 2007).

      Here, Reat’s Estate alleges Rodriguez violated the Fourteenth Amendment

by knowingly sending the victims, who had called 911 to report an assault, back

into the path of their armed attackers. It contends Rodriguez knew the attackers

last had been seen speeding northward on Sheridan Boulevard only minutes

earlier, yet he instructed Pal to stop on that road. He then told Pal to pull over and

activate his hazard lights at a location nineteen blocks north of the place of the

assault. Even after Rodriguez knew the attackers had brandished a gun, he did not

suggest that Pal relocate to a less conspicuous place, nor did he send police

protection. The district court held “these factual allegations, accepted as true, are

sufficiently shocking to the conscience to state a plausible claim for violation of



                                          -9-
plaintiffs’ substantive due process rights under the state-created danger theory.”

Aplt. App., Vol. V., at 575.

      For a number of reasons, we conclude Rodriguez’s conduct does not violate

the clearly defined contours of the state-created danger doctrine. First, Reat’s

Estate cannot point to a Supreme Court or Tenth Circuit case involving misconduct

by 911 operators. As a general matter, we have considered the doctrine in a

number of cases involving a range of state actors. For example, we have analyzed

the doctrine in the context of both an off-duty police officer on personal business

who crashed his police vehicle, see Browder v. City of Albuquerque, 787 F.3d

1076, 1083 (10th Cir. 2015), and on-duty officers engaged in high-speed chases

where “the legitimate governmental objective is so pressing that the luxury of

forethought doesn’t exist,” id. at 1080; see also Sacramento Cty. v. Lewis, 523

U.S. 833 (1998). We have also applied this theory of liability to other types of

first responders, cloaked with government authority, reacting immediately to

emergency situations. See, e.g., Perez v. Unified Gov’t of Wyandotte Cty./Kansas

City, 432 F.3d 1163, 1168 (10th Cir. 2005) (applying the state-created danger

doctrine to a firefighter who crashed his truck into a car, killing its occupant);

Radecki v. Barela, 146 F.3d 1227, 1232 (10th Cir. 1998) (applying the doctrine to

a deputy sheriff who caused the death of a bystander by instructing him to help

physically subdue a suspect who then shot the civilian).




                                          -10-
      In other settings, we have applied the state-created danger doctrine to social

workers, school officials, and hospital administrators. See, e.g., Currier, 242 F.3d

at 908 (applying the doctrine to social worker who removed a child from his

mother’s home and placed him with his father, who killed him); Armijo v. Wagon

Mound Pub. Sch., 159 F.3d 1253 (10th Cir. 1998) (applying the doctrine to school

official who suspended and sent home a special education student who

subsequently killed himself); Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995)

(applying the doctrine to state mental health administrators who eliminated a

special unit for the criminally insane, causing the transfer of a murderer to the

general hospital, where he killed his therapist).

      But these cases are not particularly instructive here: as the Supreme Court

noted in the case that is widely understood to be the progenitor of the state-created

danger doctrine, “[t]he affirmative duty to protect arises not from the State’s

knowledge of the individual’s predicament or from its expressions of intent to help

him, but from the limitation which it has imposed on his freedom to act on his own

behalf.” Deshaney v. Winnebago Cty. Dept. of Soc. Servs., 489 U.S. 189, 200

(1989). In all of these cases where we found it appropriate to apply the doctrine of

state-created danger, the victims were unable to care for themselves or had had

limitations imposed on their freedom by state actors. “[In a] custodial situation

[such as] a prison, forethought about an inmate’s welfare is not only feasible but




                                         -11-
obligatory under a regime that incapacitates a prisoner to exercise ordinary

responsibility for his own welfare.” Lewis, 523 U.S. at 851.

      Rodriguez is unlike any of the defendants in our state-created danger cases.

Rodriguez was not a police officer, firefighter, or other similar first responder. 1

As a 911 operator, he was not present at the scene of the attack, nor could he take

physical action in response to the unfolding event. He did not impose any

limitation on Reat’s freedom to act. Rodriguez merely informed the victims,

however incompetently, that to get help from the police, they would have to return

to Denver. It cannot be said that any of Rodriguez’s actions, as foolish as they

were, “limited in some way the liberty of a citizen to act on his own behalf.”

Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 995 (10th Cir. 1994).

      Furthermore, Reat is unlike the victims in other state-created danger cases.

He was not in the custody of the state in the way that prisoners are, and thus was

not deprived in that manner of his freedom to act. Unlike children in school or

under the care of social workers, Reat and his companions were not incapable of

acting in their own interest at the time of the shooting. Though the state-created

danger doctrine itself may be clearly established, it is far from clear that it applies

to Rodriguez’s conduct in this particular situation.

       1
         Only one circuit court has even considered imposing liability under the
state-created danger doctrine on a 911 operator for conduct responding to an
emergency call. See Beltran v. City of El Paso, 367 F.3d 299 (5th Cir. 2004)
(finding operator was entitled to qualified immunity where she miscoded a 911
call, leading to the death of the child caller and her mother).

                                          -12-
      In sum, all cases cited by Reat’s Estate “are simply too factually distinct to

speak clearly to the specific circumstances here.” Mullenix, 136 S. Ct. at 312. No

reasonable 911 operator could have known that these actions would have resulted

in liability under the Fourteenth Amendment. Because we dispose of this case on

the clearly-established prong of the qualified immunity test, we express no opinion

as to whether Rodriguez’s actions violated Reat’s constitutional rights. Thus, our

decision does not foreclose liability for similarly-situated actors in future cases.

See Pearson, 555 U.S. at 242–43.

      B. State Law Claims

      Reat’s Estate also asks us to exercise supplemental jurisdiction over related

state law claims against Rodriguez. When we have held defendants are entitled to

summary judgment on all federal claims, we have declined to exercise our

supplemental jurisdiction over issues of state law, and instead, when in the

interests of comity and justice, remanded with instructions to dismiss. See Brooks

v. Gaenzle, 614 F.3d 1213, 1229–30 (10th Cir. 2010); see also United Mine

Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). Accordingly, we decline

to exercise jurisdiction over the remaining state law claims.

                                 III. Conclusion

      For the foregoing reasons, we REVERSE AND REMAND with instructions

to DISMISS without prejudice the state law claims.




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