                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 12-1922


CARLIN ROBINSON, individually, as Guardian and next Friend
of I.Y., M.Y. and A.Y., and as Personal Representative of
the Estate of Veronica Williams, Deceased; EUNICE GRAVES,

                  Plaintiffs - Appellees,

           v.

DANIEL A. LIOI,

                  Defendant – Appellant,

           and

BALTIMORE CITY POLICE DEPARTMENT; CLEAVEN LAWRENCE WILLIAMS,
JR.,

                  Defendants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:12-cv-00192-CCB)


Argued:   March 20, 2013                      Decided:   July 30, 2013


Before GREGORY and AGEE, Circuit Judges, and David A. FABER,
Senior United States District Judge for the Southern District of
West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.
ARGUED: James Howard Fields, Baltimore, Maryland, for Appellant.
Cary Johnson Hansel, III, JOSEPH, GREENWALD & LAAKE, PA,
Greenbelt, Maryland, for Appellees.    ON BRIEF: Daniel Cox, THE
COX LAW CENTER LLC, Frederick, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Daniel Lioi (“Lioi”), a police officer with the Baltimore

City Police Department (“BCPD”), filed an interlocutory appeal

from the district court’s denial of his Rule 12(b)(6) motion to

dismiss based on his assertion of qualified immunity against

plaintiffs’ 42 U.S.C. § 1983 claim.                For the reasons set forth

below, we affirm the judgment of the district court that, on the

facts alleged, Lioi is not entitled to qualified immunity.

                                          I.

       Because this is an appeal from the denial of a motion to

dismiss,       the   material   facts   as     alleged   in    the     complaint     are

taken     as    true,    drawing    all       reasonable      inferences       in    the

plaintiffs’ favor.        See Jenkins v. McKeithen, 395 U.S. 411, 421-

22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); Tobey v. Jones, 706

F.3d 379, 383 (4th Cir. 2013).

                                          A.

        Veronica     Williams    (“Veronica”       or    “Mrs.       Williams”)      and

Cleaven Williams (“Cleaven” or “Mr. Williams”) were husband and

wife.      Shortly      after   they    married,     Cleaven         began    to    abuse

Veronica, both mentally and physically.                    The abuse escalated

over    time     and,   eventually,     Veronica     not      only    filed    assault

charges against Cleaven but also went into hiding.

        On November 17, 2008, Mrs. Williams appeared before the

Baltimore District Court in connection with her request for a

                                          3
protective         order        against    her     husband.           Cleaven       Williams    was

provided notice of the hearing and, at the conclusion of the

hearing,       the       protective       order    was        granted.        As    Veronica    was

leaving    the       courthouse           that    day,        Cleaven    attacked      Veronica,

stabbing her repeatedly in broad daylight just one block from

the courthouse.            A few days later, Veronica, who was four to six

weeks    pregnant          at    the    time     with     the     couple’s         fourth    child,

suffered       a    miscarriage.            That       same    day,     Veronica      died     as   a

result    of       the    injuries        she    sustained.           Cleaven       Williams    was

found guilty of his wife’s murder and is currently incarcerated.

     As mentioned earlier, several weeks prior to her death,

Veronica had filed assault charges against her husband.                                        As a

result of the assault charges, a warrant was issued for Cleaven

Williams’ arrest.                Lioi and other officers, in violation of the

procedure for service of a warrant, withheld the warrant from

the domestic violence unit that was responsible for serving it.

Lioi also warned Cleaven Williams about the warrant and sent him

text messages to help him avoid capture.                              Finally, when Cleaven

Williams arrived at police headquarters on November 14, 2008,

Lioi refused to serve or arrest him, falsely claiming that the

warrant    could          not    be    found.          Lioi    was    later    suspended       when

homicide investigators discovered text messages between Lioi and

Cleaven Williams warning Williams and giving advice on avoiding

capture.

                                                   4
                                           B.

      Carlin Robinson, as Guardian and Next Friend of Veronica's

children,    and    Eunice     Graves,     Mrs.         Williams'       mother,    filed    a

civil suit against Lioi, the BCPD, and Cleaven Williams.                                  The

plaintiffs allege that, due to his prior relationship with Mr.

Williams, Lioi departed from normal procedures in serving the

arrest warrant and thereby enabled Mr. Williams to remain free

at the time he killed his wife.

      The plaintiffs asserted a claim against Lioi and the BCPD

for violating Mrs. Williams' due process rights under 42 U.S.C.

§   1983.    They       also   brought    a       §    1983     claim   under    Monell    v.

Department of Social Services, 436 U.S. 658 (1978), against the

BCPD, as well as a claim against Lioi, the BCPD, and Cleaven

Williams     for        conspiring       to           violate     Veronica        Williams'

constitutional rights under 42 U.S.C. § 1985.                            Plaintiffs also

asserted state law claims for wrongful death, survival action,

battery,    gross       negligence,      reckless         endangerment,         intentional

infliction     of        emotion     distress,            common        law     conspiracy,

conversion, and fraud and intentional misrepresentation.

      The court granted the motion to dismiss filed by the BCPD

but denied Lioi’s motion to dismiss on the basis of qualified

immunity.         The    instant     appeal           followed.         See    Mitchell    v.

Forsyth,    472    U.S.    511,    530    (1985)          (permitting         interlocutory

appeals of qualified immunity determinations).

                                              5
                                              II.

      The defense of “[q]ualified immunity shields a government

official       from    liability        for   civil     monetary         damages      if   the

officer’s       ‘conduct         does     not       violate       clearly      established

statutory or constitutional rights of which a reasonable person

would have known.’”              Wiley v. Doory, 14 F.3d 993, 995 (4th Cir.

1994); (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

In Saucier v. Katz, 533 U.S. 194, 195 (2001), the Supreme Court

laid out a two-step process for resolving the qualified immunity

claims    of    government        officials.         First,       a    court   must    decide

whether the facts that a plaintiff has alleged or shown make out

a violation of a constitutional right.                     See id. at 201.            Second,

a court must decide whether the right at issue was “clearly

established” at the time of defendant’s alleged misconduct.                                See

id.   Courts may exercise discretion in deciding which of the two

Saucier    prongs       “should      be   addressed        first        in   light    of   the

circumstances         in   the    particular        case   at     hand.”        Pearson     v.

Callahan,      555    U.S.    223,      236   (2009).         A       government     official

asserting a qualified immunity defense bears the burden of proof

and persuasion.            See Wilson v. Kittoe, 337 F.3d 392, 397 (4th

Cir. 2003).       We review the denial of a motion to dismiss on the

basis of qualified immunity de novo.                   See Toby, 706 F.3d at 385.




                                                6
                               A.

     “As a general matter . . . a State’s failure to protect an

individual against private violence simply does not constitute a

violation of the Due Process Clause.”     DeShaney v. Winnebago

Cnty. of Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989).     There

are, however, a few limited exceptions.    One such exception is

where the state creates or enhances the danger.   See id. at 198. 1


     1
        The other exception noted by the DeShaney decision,
commonly referred to as the “special relationship” exception,
arises when the individual and the State have a special
relationship such that the State has an affirmative duty to
protect the individual from harm inflicted by third parties.
This “special relationship” exception arises in a custodial
context because “when the State takes a person into its custody
and holds him there against his will, the Constitution imposes
upon it a corresponding duty to assume some responsibility for
his safety and general well-being.” DeShaney, 489 U.S. at 199-
200; see also Waybright v. Frederick Cnty., 528 F.3d 199, 207
(4th Cir. 2008) (A “special relationship is all but synonymous
with   a custodial   relationship.”)   (internal  citations   and
quotations omitted).   As the Court noted, “[i]t is the State’s
affirmative act of restraining the individual’s freedom to act
on his own behalf . . . 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.”     Id. at 200; see also Pinder v.
Johnson, 54 F.3d 1169, 1175 (4th Cir. 1995) (en banc) (“Some
sort   of  confinement   of  the   injured   party—incarceration,
institutionalization, or the like—is needed to trigger the
affirmative duty.”).

     The district court rejected plaintiffs’ claim that the
“special relationship” exception applied to their claim against
Lioi because it found that Veronica Williams was not in the
custody of the State at any relevant point. See J.A. at 178-79.
Although the court acknowledges that plaintiffs have raised the
“special relationship” exception claim on appeal, we need not
address it because we agree with the district court that
(Continued)
                                7
      In   DeShaney,         the     Winnebago         County    Department          of       Social

Services      (DSS)     was    sued        for    violating          four-year-old            Joshua

DeShaney’s substantive due process rights by failing to protect

the child from his father’s abuse.                       See id. at 192-95.               The DSS

had received a number of reports that Joshua was being abused by

his   father     yet    they       failed    to      remove     him    from    his       father’s

custody.      See id. at 192-93.                 Eventually, Joshua was beaten so

badly that he suffered serious brain damage.                                See id. at 193.

The   Supreme     Court       held    that       the    DSS    was    not    liable       because

“[w]hile    the      State    may     have       been    aware    of    the    dangers         that

Joshua faced in the free world, it played no part in their

creation,      nor     did    it     do     anything       to    render       him       any    more

vulnerable to them.”            Id. at 201.             This language in DeShaney is

commonly acknowledged as the genesis of the state-created danger

doctrine. 2

      Citing      DeShaney,         this     Court       has    recognized          the       state-

created danger doctrine, noting that “[w]hen the state itself

creates    the    dangerous          situation         that    resulted      in     a    victim’s



plaintiffs have a substantive due process claim against Lioi
based upon the state-created danger exception.
      2
       See Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001)
(“The clear implication of the Court’s language, which was
written in 1989, was that a state could be liable when it
affirmatively acts to create, or increases a plaintiff’s
vulnerability to, danger from private violence.”).



                                                 8
injury,       the   absence    of   a    custodial     relationship        may    not   be

dispositive.        In such instances, the state is not merely accused

of a failure to act; it becomes much more akin to an actor

itself directly causing harm to the injured party.”                         Pinder, 54

F.3d     at     1177;    see    also      Waybright,        528    F.3d     at    207-08

(referencing        Pinder’s    acknowledgment         of     state-created       danger

theory but refusing to apply it under facts of case); Stevenson

v. Martin Cnty. Bd. of Educ., 3 F. App’x 25, 31 (4th Cir. 2001)

(unpublished) (“In Pinder this court was faced with a case in

which it had to decide the contours of DeShaney’s state-created

danger    exception.”).          Although       the   Court      ultimately      rejected

Pinder’s      reliance    on    the     state-created       danger    exception,        see

Pinder, 54 F.3d at 1175, and although we have not since applied

the    exception,       the    Court’s     discussion       in    Pinder    is    widely

acknowledged as the seminal case in this circuit on the theory.

See Waybright, 528 F.3d at 207-08; Stevenson, 3 F. App’x at 31;

see also Mills v. City of Roanoke, 518 F. Supp. 2d 815, 819-20

(W.D. Va. 2007) (“The leading Fourth Circuit case on the state-

created danger exception is Pinder v. Johnson, 54 F.3d 1169 (4th

Cir. 1995).”).

       This Court has acknowledged that the state-created danger

exception is a narrow one and that for the doctrine to apply,

there must be affirmative action, not inaction, on the part of

the State which creates or increases the risk that the plaintiff

                                            9
will be harmed by a private actor.                         See id. at 1175 (“It cannot

be that the state commits an affirmative act or creates a danger

every time it does anything that makes injury at the hands of a

third    party      more     likely.”);        see    also       Cartwright      v.    City    of

Marine City, 336 F.3d 487, 493 (6th Cir. 2003) (noting that a

“failure      to    act     is   not     an   affirmative         act    under   the    state-

created danger theory”); Butera v. District of Columbia, 235

F.3d    637,       650     (D.C.    Cir.      2001)    (“[A]       key    requirement         for

constitutional liability is affirmative conduct by the State to

increase      or    create       the     danger     that     results     in     harm   to     the

individual.         No constitutional liability exists where the State

actors had no hand in creating the danger but [simply] stood by

and did nothing when suspicious circumstances dictated a more

active role for them.”); Stevenson, 3 F. App’x at 31 (“In order

to   create    a     danger,       the    state      has    to    take   some    affirmative

steps.     Liability does not arise when the state stands by and

does    nothing       in     the    face      of    danger.         Failing      to    provide

protection from danger does not implicate the state in the harm

caused by third parties.”) (internal citations and quotations

omitted); Holloway v. City of Suffolk, 660 F. Supp. 2d 693, 698

(E.D.    Va.       2009)     (“Liability       under        the    state-created        danger

exception means that the state has to take some affirmative step

to create the danger from the third party, and the failure to

provide protection from danger does not implicate the state in

                                               10
the harm caused by the third party.”).                        Thus, the lodestar of

our analysis of the narrow state-created danger exception to the

bright-line rule under DeShaney is the Pinder requirement that

the    government       actor     “itself    directly      caus[ed]      harm     to    the

injured party.”         Pinder, 54 F.3d at 1177.

       Despite        Lioi’s     attempt     to       characterize      his      behavior

otherwise, it is clear that his conduct, as alleged, was far

more than a mere passive failure to act; the type of omission

claim which the court rejected in Pinder.                     To the contrary, Lioi

is alleged to have conspired with Cleaven Williams “to evade

capture” and “to remain free despite the finding of probable

cause,” thereby directly enabling him to harm Mrs. Williams.

(J.A.     20,    at    ¶¶   20,     23.)         To   paraphrase       Pinder,     Lioi’s

affirmative       acts      in    the   conspiracy        with     Cleaven       Williams

“create[d] the dangerous situation that resulted in a victim’s

injury.”        Pinder, 54 F.3d at 1177.               Lioi, as alleged, was “an

actor itself directly causing harm to the injured party.”                               Id.

Lioi    conspired       with     Cleaven    Williams     to     help   Williams     avoid

being arrested.          Lioi actively interfered with the execution of

the warrant by not only failing to turn the warrant over to the

proper unit with the BCPD responsible for its execution, but

also by warning Mr. Williams and giving him advice about how to

avoid service of the warrant.                Furthermore, Lioi lied to avoid

service    of    the    arrest     warrant    by      falsely    contending      that    it

                                            11
could not be found.               Such acts meet the state-created danger

exception under Pinder.

      While     courts       have     applied      the     state-created          danger

exception in varying contexts, the Ninth Circuit’s decision in

Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), is particularly

instructive.        In Wood, a police officer stopped the car in which

the   plaintiff       was     a    passenger,      arrested      the    driver,     and

impounded     the    vehicle.        879   F.3d    at    586.     Though     the    stop

occurred in a high-crime area, the police officer required the

plaintiff to get out of the car and abandoned her to external

dangers.      Id.    The police officer left with the vehicle and the

abandoned plaintiff was subsequently raped.                 Id.

      The Ninth Circuit allowed the plaintiff’s § 1983 claim to

proceed,      denying       the    officer’s      qualified       immunity    defense

because     “[a]     reasonable      police     officer     who     acted    as    [the

plaintiff]      alleges      [the    police     officer]        acted   should      have

understood that what he was doing violated [the plaintiff’s]

constitutional right to be free from an unjustified intrusion

into her personal security in violation of her liberty interest

under the Fourteenth Amendment.”                  Id. at 596.       The court held

that the plaintiff had raised a triable issue as to whether the

officer “affirmatively placed the plaintiff in a position of

danger.”      Id. at 589.



                                           12
       As in Wood, Lioi’s alleged affirmative acts with his co-

conspirator, Cleaven Williams, to avoid arrest directly enabled

Mr. Williams to perpetrate the harm to Mrs. Williams.                                Lioi,

therefore, “affirmatively placed [Mrs. Williams] in a position

of danger.”         Id. at 589.

       The Court finds unpersuasive Lioi’s argument that, because

a   police    officer      has    discretion       in   the     execution     of   arrest

warrants, see Town of Castle Rock, Colo. v. Gonzales, 545 U.S.

748,    764   (2005),      his    conduct     in   this    case       did   not    violate

Veronica Williams’ substantive due process rights and thus did

not run afoul of § 1983.                 In Castle Rock, a father took his

three   daughters        from    their   mother’s       yard,    in    violation     of   a

restraining order.          Id. at 753.            Despite repeated phone calls

from the mother informing them that her daughters were missing

and that the restraining order had been violated, the police did

nothing.      Id. at 753-54.         Eventually, the daughters were found

to have been murdered by their father.                  Id. at 754.

       As to the mother’s 42 U.S.C. § 1983 claim that the police

officers violated the Fourteenth Amendment’s Due Process Clause

in failing to enforce the restraining order, the Court found she

did not have a property interest in police enforcement of the

restraining order.              Id. at 768.         The Court noted that “the

benefit that a third party may receive from having someone else

arrested      for    a   crime    generally      does    not    trigger     protections

                                            13
under the Due Process Clause, neither in its procedural nor in

its substantive manifestations.”        Id.

     The instant case is distinguishable from Castle Rock.       Lioi

attempts to characterize his conduct in this case as a mere

failure to act.   However, according to the complaint, that is a

gross mischaracterization.    As discussed above, Lioi’s alleged

conduct in this case was not confined to a failure to execute

the arrest warrant.   Lioi affirmatively acted to interfere with

execution of the warrant by conspiring with Cleaven Williams to

evade capture and remain at large.            Whereas Castle Rock is,

fundamentally, a case about inaction, Plaintiffs in the instant

case have alleged affirmative misconduct on Lioi’s part such

that his actions “directly caus[ed] harm to the injured party.”

Pinder, 54 F.3d at 1177.     Accordingly, Plaintiffs’ claims are

not foreclosed by Castle Rock. 3

     Lioi’s affirmative acts, as alleged, were on that “point on

the spectrum between action and inaction,” Pinder, 54 F.3d at


     3
        In addition, the Castle Rock decision did not even
consider the state-created danger exception nor did it consider
plaintiff’s substantive due process claim as that claim was not
before the court.    See Caldwell v. City of Louisville, 200 F.
App’x 430, 435 (6th Cir. 2006) (unpublished) (“There is nothing
in Castle Rock that compels a conclusion the Supreme Court
intended to eliminate the state-created danger exception to the
DeShaney rule.   This is not surprising since the Court did not
have occasion to address or consider the plaintiff’s substantive
due process claim as it was not before the Court.”).



                                   14
1175, such that his acts created “the dangerous situation that

resulted in [Mrs. Williams’] injury.”                         Id. at 1177.               Based on

the foregoing, the court agrees with the district court that

plaintiffs have stated a substantive due process claim against

Lioi based upon the state-created danger exception.

                                                  B.

      When determining whether a constitutional right was clearly

established,          a     court      asks     whether     the       right     was       clearly

established at the time of the conduct in question.                                See Pinder,

54   F.3d      at    1173.        A    right      is   clearly    established            when    the

contours       of     the      right      are     sufficiently        clear    such       that    a

reasonable          official      would     understand      that       what    he        is   doing

violates that right.                Id.         This inquiry is focused on whether

the official was on notice that his or her conduct violated

clearly established law and that the state of the law provided

fair warning that the conduct was unconstitutional.                                Id.

      A     right         is      clearly       established       when        it        has     been

authoritatively decided by the Supreme Court, the appropriate

United States Court of Appeals, or the highest court of the

state     in    which       the    action       arose.     See     Edwards         v.     City   of

Goldsboro, 178 F.3d 231, 251 (4th Cir. 1999).                                 The relevant,

dispositive inquiry is whether it would be clear to a reasonable

person      that      the      conduct      was    unlawful      in    the     situation         he

confronted.           Saucier, 533 U.S. at 195.                   “Clearly established”

                                                  15
does not mean that “the very action in question has previously

been    held     unlawful,”       but   requires        the    unlawfulness      of     the

conduct to be apparent “in light of preexisting law.”                          Wilson v.

Layne, 526 U.S. 603, 615 (1999).

       The responsibility imposed on public officials to
       comply    with     constitutional     requirements    is
       commensurate   with    the   legal   knowledge   of   an
       objectively    reasonable     official     in    similar
       circumstances at the time of the challenged conduct.
       It is not measured by the collective hindsight of
       skilled lawyers and learned judges. * * * “Officials
       are not liable for bad guesses in gray areas; they are
       liable for transgressing bright lines.” Maciarello v.
       Sumner, 973 F.2d 295, 295 (4th Cir. 1992), cert.
       denied, 506 U.S. 1080 (1993).

Jackson v. Long, 102 F.3d 722, 730-31 (4th Cir. 1996); see also

Williams       v.     Hansen,     326   F.3d     569,    578-79    (4th       Cir.    2003)

(holding       that    for   purposes     of     qualified      immunity,       executive

actors are not required to predict how the courts will resolve

legal issues).          “The linchpin of qualified immunity is objective

reasonableness.”         Pinder, 54 F.3d at 1173.

       “In     determining        whether      the      specific      right     allegedly

violated was `clearly established,’ the proper focus is not upon

the right at its most general or abstract level, but at the

level     of     its     application      to      the    specific      conduct        being

challenged.’”          Wiley v. Doory, 14 F.3d 993, 995 (4th Cir. 1994)

(quoting       Pritchett     v.    Alford,       973    F.2d   307,    312     (4th    Cir.

1992)).        “Notably, however, the existence of a case holding the

defendant’s identical conduct to be unlawful does not prevent

                                            16
the denial of qualified immunity.”               Edwards, 178 F.3d at 251;

see also Currier v. Doran, 242 F.3d 905, 923 (10th Cir. 2001)

(“It is not necessary, however, for plaintiffs to find a case

with exact corresponding factual circumstances; defendants are

required to make `reasonable applications of the prevailing law

to their own circumstances.’”)(quoting Murrell v. Sch. Dist. No.

1, 186 F.3d 1238, 1251 (10th Cir. 1999)).

     Despite Lioi’s assertion to the contrary, the right to be

free from state-created danger has been clearly established in

this circuit.       See Pinder, 54 F.3d at 1177; see also Waybright,

528 F.3d at 207; Stevenson, 3 F. App’x at 31.                       The lack of a

case directly on point does not alter the court’s conclusion in

this regard.       As the Supreme Court has noted:

     The easiest cases don’t even arise.                  There has never
     been . . . a section 1983 case                     accusing welfare
     officials of selling foster children                into slavery; it
     does not follow that if such a                     case arose, the
     officials would be immune from                     damages . . .
     liability.

United    States    v.   Lanier,   520    U.S.   259,   271   (1997)       (internal

citations and quotations omitted); Pulliam v. Ceresini, 221 F.

Supp. 2d 600, 605 n.5 (D. Md. 2002) (“The lack of decisional

authority    defining     the    constitutional    right      in    this      specific

context    does    not   imply   that    the   unlawfulness        of   the   conduct

under the Constitution is not apparent.”).




                                         17
         For   qualified   immunity      purposes,        in    2008,    a   reasonable

police officer in Lioi’s position would have known that a law

enforcement officer affirmatively acting in a conspiracy with a

third party to avoid arrest on assault charges could give rise

to   a    constitutional        violation    when    the       third    party    acts    in

furtherance of the conspiracy to injure another person.                          As this

Court      has   stated    on    repeated        occasions,      although       qualified

immunity protects law enforcement officers from bad guesses in

gray areas, they are liable for transgressing bright lines.                             See

Maciariello       v.   Sumner,     973   F.2d      295,    298    (4th    Cir.    1992).

Lioi’s conduct as alleged in the complaint was not in a gray

area; he crossed a bright line.

                                         III.

         For the foregoing reasons, the judgment of the district

court denying qualified immunity to Lioi is

                                                                                AFFIRMED.




                                            18
