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

                                                                                   FILED
                                                                                  July 27, 2009
                                       No. 08-50820                          Charles R. Fulbruge III
                                                                                     Clerk

MARY HALE; WAYNE HALE; JENNIFER HARRIS; HAROLD HARRIS;
DARRELL SCRAPER
                              Plaintiffs-Appellants
v.

BEXAR COUNTY, TEXAS

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:06-CV-0562


Before REAVLEY, DAVIS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       This is an appeal from a summary judgment granted in favor of Appellee
Bexar County in a suit stemming from a train derailment and related events
that resulted in the death and injury of residents in the nearby area.
Appellants—Wayne and Mary Hale (the “Hales”), residents of the area in which
the train derailed, and Darrell Scraper, Harold Harris, and Jennifer Harris,
members of the Southwest Volunteer Fire Department (“SWFD”)—sued Bexar
County and Bexar County Sheriff’s Office Lieutenant Kyle Coleman (“Lt.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-50820

Coleman”) under 42 U.S.C. § 1983, alleging that they prevented attempted
rescue efforts by volunteer rescuers which could have limited the Hales’ injuries
related to the train derailment. Appellants appeal the district court’s grant of
summary judgment in favor of Bexar County. For the following reasons, we
affirm the judgment of the district court.
                                       I.
      On June 28, 2004, a train carrying chlorine gas derailed near the Hales’
home of in Bexar County, outside of the city of San Antonio. The train
derailment was within two-hundred yards of the home. The Hales were
awakened by the sound of the derailment and the smell of the concentrated
chlorine gas. Mary Hale reported the crash to a Bexar County 911 operator, who
notified the Southwest Volunteer Fire Department. The incident was within the
jurisdiction of SWFD and outside the city limits of the City of San Antonio.
Plaintiffs Harold and Jennifer Harris, in their capacities as assistant chief and
lieutenant of the SWFD, were dispatched to the scene. The Harrises reached the
scene at 5:15 a.m., followed by deputies from the Bexar County Sheriff’s Office
(“BCSO”) and SWFD Chief Darrell Scraper.
      As they approached the scene, a BCSO patrol unit and a SWFD motor unit
drove into a cloud of chlorine gas. The gas was leaking from a ruptured tank car
on the train. The two lead vehicles were overcome by the chlorine gas. The
sheriff’s deputy was able to back his vehicle out and escape, but an injured
firefighter became incapacitated and was rescued by SWFD Chief Harris. After
the injured firefighter was transported for medical treatment, the SWFD
rescuers put on their bunker gear and self-contained breathing apparatuses,
which provided limited protection from the leaking chlorine gas, and returned
to the scene. Within an hour of the derailment, the Bexar County dispatcher
advised SWFD and BCSO of the chlorine gas and the wind direction. A BCSO
sergeant instructed all BCSO units to stay clear of the scene.

                                       2
                                   No. 08-50820

      At 6:00 a.m., Mary Hale made another call to 911, reporting that she, her
husband, and her brother-in-law were having serious trouble breathing and were
attempting to evacuate in their vehicle. Mary Hale informed dispatch that their
access to the road was blocked by a neighbor’s locked gate, which prevented
them from driving their vehicle or walking to evacuate the area.
      SWFD Chief Scraper arrived at the scene around 6:00 a.m. and established
a forward command position, while Chief Harris retained his authority as
incident commander. San Antonio Fire Department (“SAFD”) personnel began
arriving on the scene and were briefed by SWFD. Around 6:15 a.m. Harris and
SWFD Capt. Nolen found and rescued the train engineer, carried him east away
from the wreckage for about ten minutes, and waited for a SWFD rescue vehicle.
The two rescuers, still in their bunker gear, returned to the wreckage to search
for the missing train conductor.
      Around 6:30 a.m., SWFD was notified that nearby residents, including the
Hales, were trapped at 9281 Nelson Road. SAFD and SWFD discussed options
for rescuing the Hales and SWFD, equipped with bunker gear and self-contained
breathing apparatuses, prepared to approach the Hales’ residence through a
cornfield upwind from the spill.      At 7:00 a.m. Harris and Nolen further
investigated the wreckage and crossed under the train on foot, heading east
upwind, looking for a safe rescue approach. Chief Scraper instructed the
rescuers to take their truck to initiate the rescue. Appellants allege that this
attempt was thwarted by BCSO deputies who would not let SWFD move their
vehicle closer to the wreckage. Appellants allege that in accordance with Bexar
County’s interpretation of the Bexar County Emergency Management Plan
(Annexes F & Q), the mutual aid agreement among local governmental agencies,
as well as National Incident Management System protocols and procedures,
Bexar County determined that SAFD would be the exclusive agency to approach
the accident scene and attempt a rescue, concluding that no other rescuers would

                                        3
                                 No. 08-50820

be allowed to attempt a rescue. Mary Hale was still in contact with the Bexar
County dispatcher, and informed her that she and her husband were still in
their vehicle trying to escape the chlorine cloud, but were unsuccessful because
of the blocked road. The Hales were still having serious trouble breathing. The
dispatcher maintained contact, indicated help was “on the way,” and advised the
Hales to return to the house and turn off the air conditioning. Returning to the
house positioned the Hales closer to the chlorine spill and train derailment, and
consequently, the Hales allege, exposed them to more concentrated chlorine
contamination and poisoning.
      Two hours after SWFD was allegedly prevented from initiating the Hales’
rescue, the Hales were contacted by private rescuers by telephone. At 8:30 a.m.,
private rescuers informed the Hales that they were on their way to the Hales’
residence from the southeast. Shortly thereafter, the private rescuers again
contacted the Hales and informed them that BCSO sheriff’s deputies blocked
their rescue attempt. Additionally, the Hales’ son Charles, who was familiar
with the area and had experience as a volunteer firefighter, was also denied the
opportunity to make a rescue attempt. Charles called 911 and informed the
dispatcher that he could make the rescue; however, he was informed that he
would be stopped if he attempted the rescue. After driving to the area, Charles
could not get close enough to the house because sheriff’s deputies blocked his
access.
      SAFD committed its HazMat teams to the incident, which began arriving
at the command site at 8:30 a.m. and prepared for a tactical entry through the
wreckage at approximately 9:45 a.m. to search for victims. At approximately
9:10 a.m., Bexar County 911 staff advised the Hales by telephone to get into the
shower for decontamination in preparation for imminent evacuation. The Hales
showered, ultimately creating a chemical reaction with the chlorine gas in the




                                       4
                                  No. 08-50820

house, producing hydrochloric acid, which allegedly resulted in further harm and
injury.
      After SWFD’s attempts to use its vehicle to make a rescue from the
southeast were blocked, Chief Harris requested Lt. Harris and fireman Michael
Yanelli find a way around the wreckage from the southeast to rescue the trapped
residents. Lt. Harris and Yanelli drove their fire rescue truck along the county
roads southwest of the wreck, searching for a way to approach the isolated
segment of Nelson Road, upwind of the wreckage, and away from the chemical
hot zone. The two rescuers were observed by the operator of BCSO Unit 2701,
who contacted dispatch to see if BSCO had authorized any firemen to be on the
back side of Nelson Road. BSCO Lt. Kyle Coleman and another deputy of the
BSCO stopped Harris and Yanelli, and ordered them out of the area. Appellants
allege that while in their clearly marked SWFD rescue vehicle, the two rescuers
attempted to identify themselves and explain their actions, but the BSCO deputy
ordered them to leave without an opportunity to show any credentials.
      According to a partial transcript of BCSO radio communications prepared
at the request of the National Transportation and Safety Board, at around 9:45
a.m., the operator of BSCO Unit 2701, Lt. Coleman, was advised about the
SWFD presence and authority to check homes and proceed along Nelson Road.
The BSCO operator of BSCO Unit 2004, Lt. Raul Fernandez, informed Lt.
Coleman that the SWFD Assistant Chief had sent firemen into the back side of
Nelson Road to check on some homes, and noted that “it’s their call, it’s the
county side.” Both Lt. Coleman and Lt. Fernandez were senior sheriff patrol
supervisors in charge of operations at the accident. After being informed of
SWFD’s presence, Lt. Coleman responded “well, we just ordered them out of
here, we’ve already took care of that, and we’re not going to allow ‘em back in
here . . . until the fire command over there . . . tells us they can come back in.”
Appellants allege that the deputies were acting pursuant to an official decision


                                        5
                                 No. 08-50820

to block anyone other than the SAFD HazMat team from approaching the
accident scene. The Harrises and Scraper allege that Lt. Coleman, a BCSO
sergeant, ordered them to stay out of the area. Similarly, the Hales allege that
other private rescuers, such as their son, Charles, were prevented from
attempting a rescue.
      SAFD finally reached the Hales at 11:30 a.m. The Hales believe they
could have been rescued as early as 7:30 a.m. if Lt. Coleman and other deputies
had not interfered with SWFD. They allege that, as a result of the delay, they
suffered prolonged exposure to chlorine gas and hydrochloric acid. When SAFD
arrived, Mary Hale was almost unconscious. Her brother-in-law, who was living
with the Hales at the time, died a few months later. Wayne Hale’s mother and
step-sister, who lived next door, were dead when help arrived.
      The Hales assert that their substantive due process rights under the
Fourteenth Amendment were violated when Bexar County and its officials failed
to allow the SWFD or other volunteer rescuers to attempt a rescue.           The
Harrises and Scraper contend that their constitutional rights were violated
because they were wrongfully prevented from rescuing the Hales and others by
Bexar County law enforcement personnel. Defendant Coleman filed a motion to
dismiss on the basis that he was entitled to qualified immunity, which was
granted by the district court. Bexar County subsequently moved for summary
judgment on the claims asserted by Appellants in their third amended
complaint. The district court granted Bexar County’s motion for summary
judgment, holding that Appellants had failed to allege a constitutional violation
to support their claims under § 1983. The instant appeal followed.
                                       II.
      This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Strong v. Univ. Healthcare
Sys., L.L.C., 482 F.3d 802, 805 (5th Cir. 2007). Summary judgment is proper if


                                       6
                                   No. 08-50820

the record reflects “that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
In deciding whether a genuine issue of material fact exists, this court must draw
all reasonable inferences in favor of the responding party. Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
      In order to properly state a § 1983 claim against Bexar County, Appellants
must identify (1) an official policy or custom (2) of the city’s policymaker (3) that
caused (4) the plaintiff to be subjected to a deprivation of a constitutional right.
Palmer v. City of San Antonio, 810 F.2d 514, 516 (5th Cir. 1987) (quoting
Grandstaff v. City of Borger, 767 F.2d 161, 169 (5th Cir. 1987)). A “‘proper
analysis requires us to separate two different issues when a section 1983 claim
is asserted against a municipality: (1) whether plaintiff’s harm was caused by
a constitutional violation, and (2) if so, whether the [municipality] is responsible
for that violation.’” Rios v. City of Del Rio, Tex., 444 F.3d 417, 426 (5th Cir.
2006) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992)). A
municipality cannot be held liable under § 1983 if there is no underlying
constitutional violation. Id.
       In order to establish the existence of a constitutional violation in this case,
the Hales urge that we accept the state-created danger theory and hold Bexar
County liable thereunder. This Circuit has never expressly accepted the
state-created danger theory that a due process violation can be found if a state
created or increased the danger to the plaintiffs and acted with deliberate
indifference. Rios, 444 F.3d at 422–23 (“[N]either the Supreme Court nor this
court has ever either adopted the state-created danger theory or sustained a
recovery on the basis thereof. We have, however, many times refused to allow
recovery sought to be predicated thereunder.”); see also Beltran v. City of El Paso,
367 F.3d 299, 307 (5th Cir. 2004) (“This court has consistently refused to recognize
a ‘state-created danger’ theory of § 1983 liability”); Morin v. Moore, 309 F.3d 316,


                                          7
                                   No. 08-50820

321–24 (5th Cir. 2002); McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 313–14
(5th Cir. 2002).
      In Salas v. Carpenter, 980 F.2d 299 (5th Cir. 1992), involving a § 1983 suit
brought by the estate of a slain hostage against the county sheriff who
commanded hostage rescue efforts, we refused to find a constitutional violation on
the basis of the state-created danger theory, or otherwise, in the context of a failed
rescue effort. In Salas, the plaintiff claimed that the county sheriff deprived the
victim of her life by preventing city officials from coming to her aid, using
incompetent hostage negotiators, and failing to provide adequate equipment to
handle the hostage situation. Salas, 980 F.2d at 303. After determining that the
plaintiff had not alleged a constitutional violation, this court found that the sheriff
was entitled to qualified immunity from suit. Id.
      In considering the claim in Salas, we recognized that some other Circuits
had found “a denial of due process when the state creates the . . . dangers” faced
by an individual. Id. at 309. We also noted a Seventh Circuit case which held
that a drowning victim had stated a claim under the due process clause when a
deputy acting pursuant to county policy committed a constitutional tort by
“cutting off private avenues of life saving rescue without providing an alternative.”
Id. at 308 (citing Ross v. United States, 910 F.2d 1422, 1433 (7th Cir. 1990)). After
considering these potential theories, we held that the plaintiff had not alleged a
constitutional violation, because despite the fact that the sheriff dismissed the city
police officers who were attempting to aid the victim, the sheriff’s deputies were
at the same time securing the courthouse and commencing negotiations with the
hostage-taker. Salas, 980 F.2d at 308. We held that the facts presented in Salas
were unlike the situation in Ross because the sheriff had provided a “meaningful
alternative” to the rescue efforts that were prevented. Id. (“[I]n Ross, no effort
was made to rescue a drowning boy for thirty minutes. In contrast, at the time
Carpenter dismissed the police his deputies were present and negotiating with


                                          8
                                  No. 08-50820

Cabano. Carpenter did not use his authority as a state officer to prevent any
rescue, rather he exercised his authority to replace one rescue effort with
another.”).
      In addition, we noted that a state’s failure to protect a person can amount
to a constitutional violation only if the state had a duty to act. Id. at 308–09
(citing DeShaney v. Winnebago Cty. Dep’t of Social Servs., 489 U.S. 189 (1989)).
After noting that some settings create a special relationship between the state and
a person—i.e., the person is held in state custody or otherwise prevented by the
state from caring for herself—imposing a duty to protect the person, this court in
Salas noted that a failed rescue effort did not present that type of circumstance.
Id. The court further stated that even if this Circuit accepted the law of other
Circuits which have found constitutional violations when the state created the
danger, the sheriff had continued at all times to supervise a law enforcement
effort to secure the victim’s safe release, and thus the situation did not qualify as
a state-created danger because the official did not “fail[] to take any action to
alleviate the danger which they created or aggravated.” Id. at 309.
      Like those in Salas, the Hales’ claims do not allege a constitutional violation
for the purposes of § 1983. Even assuming that the prevention of all rescues
without providing an alternative presents a valid due process claim in this Circuit,
those are not the circumstances presented here.         Although Appellants have
presented evidence that Coleman prevented the SWFD volunteer firefighters from
entering the area, he did provide for the eventual rescue of the Hales by the
SAFD. Because Bexar County and Coleman provided a meaningful (though
delayed) rescue alternative to the prevented private rescue effort, his actions did
not violate the Hales’ due process rights. Furthermore, Bexar County can only be
held liable if the Hales have asserted that its officials had a duty to act. We have
held that preventing a rescue effort does not, in and of itself, create a special




                                         9
                                       No. 08-50820

relationship between the state and a person imposing a duty to protect the person.
Salas, 980 F.2d at 308.
           Even if the state-created danger theory was explicitly recognized in this
Circuit, it would not apply here for the same reasons expressed in Salas. In Salas,
this court held that the defendant sheriff could not be held liable under the theory
because he neither created the immediate risk of danger to the hostage nor did he
abandon the victim in the face of the danger presented.                     980 F.2d at 309.
Certainly Lt. Coleman did not create the immediate danger of the chlorine gas
coming from the derailed train. Even if the rule encompassed a claim based upon
the increase of a “person’s vulnerability to private violence by interfer[ence] with
protective services which otherwise would be available,” Salas, 980 F.2d at 308
(citing Freeman v. Ferguson, 911 F.2d 52 (8th Cir.1990)), it would not apply here.
Although Coleman excluded the volunteer firefighters, the                          SAFD—the
firefighters Coleman thought were authorized to attempt the rescue—did
eventually rescue the Hales and thus he cannot be characterized as “failing to
take any action to alleviate the danger.”              Id. at. 309.     Because there is no
applicable precedent to support the existence of the violation of a constitutional
right under these circumstances, the district court did not err in granting
summary judgment on the Hales’ § 1983 claims.1
       The Harrises and Scraper, members of the SWFD who attempted to rescue
the Hales, also assert that the district court erred in granting summary judgment
in favor of Bexar County on the grounds that they failed to assert a constitutional
violation or deprivation to sustain their claims under § 1983. The Harrises and
Scraper assert that their rights under both the Fourteenth and First amendments




       1
         Because the Hales have failed to allege a constitutional violation, we need not address
the issue of whether they properly alleged that Bexar County had an official policy which was
the moving force behind any such violation. See Rios, 444 F.3d at 426.

                                               10
                                        No. 08-50820
were violated when they were prevented by Bexar County officials from rescuing
the Hales.2
       As our sister Circuits have observed, there is no constitutionally cognizable
interest in a volunteer position. See Versarge v. Township of Clinton N.J., 984
F.2d 1359, 1370 (3d. Cir. 1993) (holding that volunteer firefighter had no due
process interest in his position despite the fact that he received benefits); Hyland
v. Wonder, 972 F.2d 1129, 1140–42 (9th Cir. 1992) (holding that the litigant had
no protected property interest in or legal entitlement to his volunteer position).
Although those cases involved litigants who were terminated from their positions,
and not those who were prevented from performing in their volunteer capacity,
they support the conclusion that the Harrises and Scraper do not have a due
process right to serve as volunteer firefighters.
       The Harrises and Scraper also allege that they suffered an equal protection
violation when they were denied access to the Hales. Because the SWFD are not
members of a protected class, any equal protection violation is evaluated under
the rational basis standard.3 Reid v. Rolling Fork Pub. Util. Dist., 854 F.2d 751,
753 (5th Cir. 1988) (“Since this case does not concern a suspect or quasi-suspect
classification such as race or sex to which heightened scrutiny is given, the equal
protection clause requires only a minimum degree of rationality.”). An equal
protection violation does not arise if there is any basis for a classification or official
action that bears a debatably rational relationship to a conceivably legitimate
governmental end. Id.; see also Stefanoff v. Hays County, Tex., 54 F.3d 523, 526
(5th Cir. 1998) (“[E]qual protection rights are not violated as long as the policy is



       2
        Although Appellants mention the First Amendment in their brief, they do not provide
any arguments concerning a First Amendment violation or cite any authorities to support such
an argument. Accordingly, this argument has been waived. See United States v. Edwards,
303 F.3d 606, 647 (5th Cir. 2002) (inadequately briefed arguments are waived).
       3
         Appellants do not assert in their brief, nor did they assert at trial, that they are part
of a suspect class.

                                                11
                                 No. 08-50820
rationally related to some legitimate governmental goal.”). Although neither
party addressed the issue of whether Coleman or Bexar County had a rational
basis for excluding the volunteer SWFD firefighters while allowing the
professional SAFD firefighters to enter, it is evident that under the circumstances
presented here, excluding volunteers, however highly trained, in a dangerous
emergency situation is a conceivably legitimate government goal.
                                       III.
      Because Appellants failed to allege a violation or deprivation of their
constitutional rights, the judgment of the district court is AFFIRMED.




                                        12
