                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0613n.06
                             Filed: July 20, 2005

                                       No. 04-1117

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


SARA A. ROBINSON, personal representative
of the Estate of EDDIE ROBINSON, III,
deceased,

       Plaintiff-Appellant,                            On Appeal from the United
                                                       States District Court for the Eastern
v.                                                     District of Michigan

TOWNSHIP OF REDFORD, OFFICER
DIPRIMA, individually and in his official
capacity, OFFICER TURNER, individually and
in his official capacity,

       Defendants-Appellees.
                                            /

BEFORE:       BOGGS, Chief Judge; RYAN and ROGERS, Circuit Judges.

       RYAN, Circuit Judge.        The    plaintiff,   Sara   A.   Robinson, the personal

representative of the estate of Eddie Robinson, III, appeals from the district court’s grant

of summary judgment in favor of the defendant police officers on the grounds of qualified

immunity and the consequent dismissal of Robinson’s substantive due process claim

brought under 42 U.S.C. § 1983. Robinson also appeals from the district court’s grant of

summary judgment in favor of the Township of Redford with respect to her failure-to-train

claim. For the following reasons, we will affirm.

                                                I.
(No. 04-1117)                               -2-

       On January 28, 2000, Officers Albert Diprima and Lawrence Turner of the Redford

Township Police Department responded to a burglar alarm at the Advanced Custom Van

and Pick Up Shop in the Township of Redford. Diprima arrived at the scene first and

Turner joined him a short time later. Diprima noticed that the pane of glass in the front door

of the shop had been broken. Unable to gain entry into the building, the officers asked their

dispatcher to contact the key holder. Eddie Robinson, an employee of the shop, arrived

shortly thereafter with the key.

       After unlocking the front door, Diprima and Turner entered the building first, followed

by Robinson. According to the officers’ deposition testimony, they initially searched two

small rooms near the front entrance, including the “refrigerator room,” before proceeding

to a larger warehouse area in the rear of the building. Meanwhile, Diane Wolf, one of the

owners of the shop, arrived. After the officers completed their search, Wolf expressed her

suspicion to the officers that someone was still in the building and asked them to check the

upstairs area. The officers allegedly assured her that they had searched the upstairs and

the warehouse area and that “there was no one back there.” Wolf remained concerned,

stating: “I feel there is someone still here.” When asked why she felt that way, Wolf

opened the cash register and wondered aloud why the cash had not been stolen. The

officers surmised that they had responded so quickly that the intruder must have fled from

the building. According to Wolf, one of the officers then said: “I assure you that there is

no one in the building.” Wolf testified that Robinson was standing next to her when this

statement was made. Both Diprima and Turner deny making any such representations.

       The officers advised Wolf to call a board-up company to secure the front door and

then drove away. After the police left, Robinson and Wolf sat in the front office area while
(No. 04-1117)                                -3-

waiting for the board-up company to arrive. Wolf later testified that she would not have

remained in the building had the officers not assured her that it was safe to stay.

Approximately 30 minutes after the police left, Robinson walked into the refrigerator room

and peeked around a corner created by a filing cabinet. A man wearing a ski mask and

holding a gun suddenly sprang out from around the corner. Robinson and the intruder

began wrestling for control of the gun while Wolf ran out of the building. Wolf heard several

shots fired and ran to a nearby gas station to call the police. Within minutes, the police

arrived and arrested a suspect fleeing the scene. Robinson, who had been shot three

times, was taken away in an ambulance and later died from a fatal chest wound. The

suspect, Marcus Staple, was subsequently charged and convicted for Robinson’s murder.

         The parties have presented conflicting evidence regarding the extent of the officers’

search of the building. During their depositions, Diprima and Turner testified that they both

searched the refrigerator room where the intruder was hiding. The officers also testified

that they each searched the room a second time with the lights turned on, and that Wolf

had searched the room herself. Contrary to this testimony, Staple claimed in an affidavit

that he hid in the refrigerator room the entire time the officers were in the building, that no

one came into that room while he was hidden there, and that the light in that room was

never turned on. Further, Wolf testified that she never went into the refrigerator room that

night.

         On July 10, 2000, Sara A. Robinson, the widow of Eddie Robinson and the personal

representative of his estate, filed suit against Diprima and Turner, in both their individual

and official capacities, and against the Township of Redford under 42 U.S.C. § 1983.

Robinson alleged that Diprima and Turner, by failing to perform a thorough search and
(No. 04-1117)                                -4-

making false assurances about the safety of the building, violated the decedent’s

substantive due process right to personal security and to bodily integrity. She also alleged

that “Redford Township developed and maintained policies, customs, or practices exhibiting

deliberate indifference to the constitutional rights of the public, which caused the violation

of [the decedent’s] rights.”

       The defendants moved to dismiss Robinson’s complaint under Federal Rule of Civil

Procedure 12(b)(6). The motion was granted by the district court. On appeal, a panel of

the Sixth Circuit reversed, concluding that Robinson had properly stated a substantive due

process claim under the “state-created-danger” theory. Robinson v. Township of Redford,

No. 01-1196, 2002 WL 31398974, at *4 (6th Cir. Oct. 17, 2002). In an unpublished opinion,

the court explained that more discovery was needed before it could be determined whether

the officers had merely failed to protect the decedent from attack—an omission that would

not implicate the Due Process Clause—or whether the officers had affirmatively created

the danger that led to the decedent’s murder.

                It is in the gray area between creating a danger and failing to protect
       from a danger that this case lies. Defendants did not protect Robinson from
       the intruder in his business offices. Whether this lack of protection was a
       failure to act or a direct cause of harm to Robinson cannot be determined
       upon the pleadings as a matter of law. Rather, there must be some factual
       inquiry into what was done and said by the police officers who responded to
       the burglar alarm at Robinson’s business. . . . The state-created-danger
       theory is a narrow exception, and it is possible that plaintiff’s claim does not
       fall within its limited boundaries. Plaintiffs [sic] must be given an opportunity
       . . . to delve into the circumstances of 28 January 2000 and to determine if
       the acts, omissions, or assurances of the defendants are sufficient to impose
       an affirmative duty upon the Township and its officers.

Id.
(No. 04-1117)                                -5-

       The case was remanded to the district court and the parties engaged in discovery.

The defendants eventually filed a motion for summary judgment, arguing that the officers

were entitled to qualified immunity and that there was no evidence of inadequate training

by the Township of Redford. On December 18, 2003, the defendants’ motion was granted

by the district court. In its Memorandum Opinion and Order, the court concluded that the

officers were entitled to qualified immunity because the officers did not violate the

decedent’s constitutional right to substantive due process, and because any such right was

not clearly established at the time of the murder. The court also dismissed the claim

against the Township because Robinson could not establish any constitutional violation.

Robinson subsequently appealed from the district court’s decision.

                                              II.

       We review de novo a district court’s order granting a motion for summary judgment.

Andersons, Inc. v. Consol, Inc., 348 F.3d 496, 501 (6th Cir. 2003). In conducting such a

review, we must assume the truth of the non-moving party’s evidence and must construe

all inferences from that evidence in the light most favorable to the non-moving party. Id.

       Section 1983 imposes civil liability on any person who, acting under color of state

law, deprives another person of the “rights, privileges, or immunities secured by the

Constitution and laws.” 42 U.S.C. § 1983. “While government officials may be subject to

§ 1983 actions for violating an individual’s constitutional right, a plaintiff must overcome the

officials’ qualified immunity in bringing such an action.” Flaskamp v. Dearborn Pub. Sch.,

385 F.3d 935, 940-41 (6th Cir. 2004). The Supreme Court has “provid[ed] government

officials performing discretionary functions with a qualified immunity, shielding them from

civil damages liability as long as their actions could reasonably have been thought
(No. 04-1117)                                  -6-

consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483

U.S. 635, 638 (1987).

       A court confronting a claim of qualified immunity must proceed through a two-step

analysis. First, the court must determine whether “the facts alleged show the officer’s

conduct violated a constitutional right[.]” Saucier v. Katz, 533 U.S. 194, 201 (2001). “If no

constitutional right would have been violated were the allegations established, there is no

necessity for further inquiries concerning qualified immunity.” Id. Second, if the facts

alleged show that a constitutional right has been violated, the court must determine

“whether the right was clearly established.” Id. “The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a

reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202.

                            A. Alleged Constitutional Violation

       Under Saucier, we must first consider whether the evidence, taken in the light most

favorable to Robinson, demonstrates the occurrence of a constitutional violation. This court

has recognized a fundamental constitutional “‘right under the substantive component of the

Due Process Clause to personal security and to bodily integrity.’” Kallstrom v. City of

Columbus, 136 F.3d 1055, 1062-63 (6th Cir. 1998) (quoting Doe v. Claiborne County, 103

F.3d 495, 507 (6th Cir. 1996)). Robinson contends that Diprima and Turner violated this

right when they falsely assured the decedent that there were no intruders in the building

and failed to protect him from the attack of Staple. Robinson would thus impose liability on

the officers for the private act of violence that Staple inflicted upon the decedent. In

general, however, the “‘substantive’ component of the Due Process Clause does not

‘requir[e] the State to protect the life, liberty, and property of its citizens against invasion by
(No. 04-1117)                               -7-

private actors.’” Town of Castle Rock v. Gonzales, 545 U.S. ___, 125 S. Ct. 2796, 2803

(2005) (quoting DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195

(1989)).

       In the substantive due process analysis, it is the State’s affirmative act of
       restraining the individual’s freedom to act on his own behalf—through
       incarceration, institutionalization, or other similar restraint of personal
       liberty—which is the “deprivation of liberty” triggering the protections of the
       Due Process Clause, not its failure to act to protect his liberty interests
       against harms inflicted by other means.

DeShaney, 489 U.S. at 200.

       Although the states do not have an affirmative duty under the Due Process Clause

to protect citizens from private acts of violence, this court has identified two exceptions to

this general rule. First, under the “special relationship” exception, a state may have an

affirmative duty to protect an individual against private acts of violence when the state

restrains the individual from acting on his own behalf, as when the state takes the individual

into custody. Kallstrom, 136 F.3d at 1066. Second, under the “state-created-danger”

exception, a state may be liable in non-custodial settings for “affirmative acts . . . which

either create or increase the risk that an individual will be exposed to private acts of

violence.” Id.

       Robinson does not contend that the defendants’ liability is predicated on any “special

relationship” that existed between the officers and the decedent. Rather, she argues that

Diprima and Turner are liable under the “state-created-danger” theory of liability because,

“[b]y falsely assuring [the decedent] that the premises were safe, the police increased the

likelihood that [the decedent] would have a surprise encounter with the hidden intruder and

be seriously injured or killed.”
(No. 04-1117)                                 -8-

       To establish liability for a state-created danger, a plaintiff must demonstrate:

       1) an affirmative act by the state which either created or increased the risk
       that the plaintiff would be exposed to an act of violence by a third party; 2) a
       special danger to the plaintiff wherein the state’s actions placed the plaintiff
       specifically at risk, as distinguished from a risk that affects the public at large;
       and 3) the state knew or should have known that its actions specifically
       endangered the plaintiff.

Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir. 2003). Although the phrase

“knew or should have known” is generally associated with negligence claims, United States

Fidelity & Guaranty Co. v. Fireman’s Fund Insurance Co., 896 F.2d 200, 202 (6th Cir.

1990), the Supreme Court has held 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,” Daniels v. Williams, 474 U.S. 327, 328 (1986). Thus, we have clarified that, to

prove the third element of a state-created-danger claim in a noncustodial case such as the

one before us, a plaintiff must show that the government official acted with deliberate

indifference. Bukowski v. City of Akron, 326 F.3d 702, 710 (6th Cir. 2003). Under this

standard, “the official must ‘be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.’” Id.

(quoting Sperle v. Mich. Dep’t of Corr., 297 F.3d 483, 493 (6th Cir. 2002) (quoting Farmer

v. Brennan, 511 U.S. 825, 837 (1994))).

       The affirmative acts upon which Robinson would base liability are the assurances

allegedly made by the officers after their search was completed “that there [was] no one

in the building.” In our view, the officers’ representations did not violate the decedent’s right

to substantive due process. First, we note that the decedent was at risk of serious injury

or death even before he received any assurance from the officers that the premises were
(No. 04-1117)                               -9-

safe. The pretrial record establishes that after unlocking the front door of the shop, the

decedent accompanied the officers into the building while they conducted their search,

even as Staple remained crouched and hidden near the front entrance. Because the

search of the building was fraught with danger from the very beginning, it is doubtful that

the officers’ assurances created or increased the risk of harm to the decedent. Second,

the causal relationship between the officers’ assurances of safety and Robinson’s murder

is tenuous in light of intervening choices made by the decedent. The officers, as the district

court noted, did not force or instruct the decedent to remain in the building. During the half

hour in which Robinson waited in the shop after the police left, he could have waited

outside the building or left the premises entirely. Indeed, when Wolf told Robinson to go

to his bingo game, he refused. While it is certainly admirable that Robinson remained with

Wolf under the circumstances, his decision to do so is not attributable to the officers’

representations. We acknowledge that the surprise attack by Staple might have been

avoided had the officers searched the refrigerator room. But the officers’ alleged failure to

search that room, as opposed to their assurances of safety, does not constitute a

substantive due process violation because a “failure to act is not an affirmative act under

the state-created danger theory.” Cartwright, 336 F.3d at 493.

       Even assuming the officers’ representations increased the risk of harm to the

decedent, the record evidence does not indicate that those representations were spoken

with deliberate indifference. Taking the evidence in the light most favorable to Robinson,

no reasonable inference can be made that the officers actually suspected that a substantial

risk of serious harm existed when they told the decedent that no one was in the building.

Although the signs of a break-in suggested to the officers that there might be an intruder
(No. 04-1117)                               - 10 -

in the building, there is no evidence showing that, following their search, the officers knew

an intruder was inside. The officers testified that they spent 20 to 40 minutes searching the

premises, after which they were both confident that the building was safe. It is true that

both officers conceded that a less than thorough search could possibly endanger nearby

citizens. But even assuming that the officers did not search the refrigerator room, we

cannot conclude that the officers actually inferred that a substantial risk of harm existed

upon assuring Wolf and Robinson that the premises were safe. Indeed, Wolf, whose

testimony was certainly not favorable to the defendants, testified that the officers “really

thought that the person was gone.” At most, the evidence suggests that the officers were

negligent in their search and subsequent representations, an insufficient basis upon which

to state a due process claim. Daniels, 474 U.S. at 328.

                               B. Clearly Established Law

       The district court’s grant of summary judgment was also appropriate because, even

assuming Diprima and Turner violated the decedent’s right to substantive due process,

reasonable officers in their position would not have been on notice that a clearly

established constitutional right was being violated. Whether a constitutional right is clearly

established “depends substantially upon the level of generality at which the relevant ‘legal

rule’ is to be identified.” Anderson, 483 U.S. at 639. The courts must “examine the

asserted right at a relatively high level of specificity.” Cope v. Heltsley, 128 F.3d 452, 458

(6th Cir. 1997). “The right must have been ‘clearly established’ not just in an abstract

sense, but in a ‘particularized’ sense.” Id. (quoting Anderson, 483 U.S. at 640). The

burden of convincing the court that the law is clearly established rests on the plaintiff. Id.

at 459.
(No. 04-1117)                                 - 11 -

       Robinson contends that the legal proposition in Kallstrom—that state actors may be

liable for creating or increasing the risk that an individual will be exposed to private acts of

violence—was clearly established at the time of her husband’s murder. Specifically, she

reasons that the contours of the underlying due process right in this case were sufficiently

defined to affix liability on the officers because Kallstrom “teaches that the provision of

information can underlie an increased vulnerability to danger cause of action.”

       We do not agree that a reasonable officer could have deduced that the conduct in

this case amounted to a constitutional violation. The state-created-danger theory is

potentially applicable to an infinite variety of factual settings, and as an abstract proposition,

is not sufficiently concrete to provide notice to a reasonable officer in these circumstances

that his conduct is unconstitutional. Nor do the facts of Kallstrom provide such notice. In

that case, the City of Columbus released private information from several undercover police

officers’ personnel files to a criminal defense attorney, an act that jeopardized the personal

safety of the officers and their families. Kallstrom’s facts are not even remotely illustrative

or analogous to the facts before us, except in the attenuated sense that both cases involve

the “provision of information.” While it is true that the precise conduct at issue in this case

need not have been previously held unlawful, Chappel v. Montgomery County Fire

Protection District No. 1, 131 F.3d 564, 580 (6th Cir. 1997), the legal right defined in

Kallstrom is not sufficiently specific that a reasonable officer would have known that the

particular conduct involved here violated clearly established law. We think the district court

did not err in granting summary judgment to the defendant officers on the grounds of

qualified immunity.
(No. 04-1117)                                - 12 -

                                              III.

       In City of Canton v. Harris, 489 U.S. 378, 388 (1989), the Supreme Court held that

a municipality can be liable under 42 U.S.C. § 1983 for a failure to train its officers if the

inadequate training amounts to deliberate indifference to the rights of the individuals with

whom the police come into contact. Robinson argues that the Township of Redford is liable

for the failure to train its officers regarding the proper use of canines in detecting intruders

during building searches.     In this vein, she contends that the officers “violated [the

decedent’s] substantive due process rights by failing to use the canine unit that would have

saved [the decedent’s] life.” She asserts that the Township’s failure to train was a direct

cause of her husband’s death because the canine unit was available and would have

averted his murder.

       Robinson’s claim against the Township assumes a different constitutional violation

than the one she alleged directly against the officers. To support her failure-to-train claim,

Robinson alleges that the officers’ failure to summon the canine unit resulted in a violation

of the decedent’s right to substantive due process. But to establish a due process violation

based upon a state’s failure to protect against a private act of violence, Robinson must

point to an affirmative act by the state, “not its failure to act to protect [one’s] liberty

interests against harms inflicted by other means.” DeShaney, 489 U.S. at 200. In our view,

the officers’ failure to summon the canine unit is an omission, not an affirmative act, and

thus does not implicate the Due Process Clause.

       Whether the alleged constitutional violation is predicated on the officers’ alleged

assurances of safety or on their failure to summon the canine unit, Robinson’s municipal

claim must fail because the Township of Redford cannot be held liable under § 1983 in the
(No. 04-1117)                            - 13 -

absence of a constitutional violation. Watkins v. City of Battle Creek, 273 F.3d 682, 687

(6th Cir. 2001). Accordingly, Robinson’s failure-to-train claim was properly dismissed by

the district court.

                                           IV.

       For the foregoing reasons, the district court’s grant of summary judgment is

AFFIRMED.
