In the

United States Court of Appeals
For the Seventh Circuit

 

No. 18-2054

VICTORIA WEILAND and DEANNA CHRONES,
Plaintiffs-Appellees,

SHAWN LOOMIS,
Defendant-Appellant.

 

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 6111 — Amy J. St. Eve, Judge.

 

ARGUED SEPTEMBER 6, 2019 — DECIDED SEPTEMBER 18, 2019

 

Before EASTERBROOK, KANNE, and BRENNAN, Circuit Judg-
es.

EASTERBROOK, Circuit Judge. Tywon Salters, a pretrial de-
tainee in Kane County, Illinois, swallowed some cleaning
fluid, apparently in an effort to commit suicide. He was tak-
en to Delnor Community Hospital for treatment. Guards
were instructed to keep him shackled. Shawn Loomis, one of
those guards, disobeyed that order when Salters claimed
that he needed to use the bathroom. Salters grabbed
2 No. 18-2054

Loomis’s gun and escaped. While Salters terrorized the
Hospital’s staff, patients, and visitors, Loomis ran away and
hid. Salters took nurses hostage at gunpoint and assaulted
two of them. After three hours a SWAT team cornered Salters
and killed him. This appeal arises from claims under 42
U.S.C. §1983 by two persons at the Hospital who were
frightened but not physically injured. (Other claims have
been settled.)

The defendants in the suit include Loomis, Kane County
(which employed Loomis as a correctional officer), Delnor
Hospital, and Apex3 Security, LLC, which the Hospital hired
to provide security for its premises. The appeal, however,
concerns only Loomis, who moved to dismiss the complaint
on the ground of qualified immunity. A public employee is
entitled to immunity in §1983 litigation unless, at the time of
the events in question, “clearly established” law would have
made apparent to any public employee that his or her acts
violated the Constitution. See, e.g., Escondido v. Emmons, 139
5. Ct. 500 (2019). Loomis argued that it had not been (and
still is not) clearly established that permitting a prisoner to
escape violates the Constitution. He relied principally on
DeShaney v. Winnebago County Department of Social Services,
489 U.S. 189 (1989), which holds that the Constitution, as a
charter of negative liberties, does not require the govern-
ment to protect the public from private predators—and it
was Salters, not Loomis, who inflicted plaintiffs’ injuries.

The district judge first held that the complaint presents a
valid claim for liability under what has come to be called the
“state-created danger exception” to DeShaney. Does [I-IV v.
Kane County, 308 F. Supp. 3d 960, 967-71 (N.D. III. 2018).

Under this doctrine, the judge wrote, a public employee is
No. 18-2054 3

liable for increasing the danger to which other persons are
exposed. Loomis did not create danger by transferring Salt-
ers to the Hospital; that decision was made by others. So too
was the decision that Loomis carry a weapon in a situation
that posed a risk if he lost control of his sidearm. But Loomis
did increase the danger by removing Salters from his shack-
les, negligently permitting him to get the gun, and running
away. Plaintiffs do not allege that Loomis intended harm to
the Hospital’s staff, patients, and visitors—he appears, in-
stead, to be a feckless coward —but the district judge thought
that negligence leading to bystanders’ danger could support
liability. Then, and for essentially the same reasons, the
judge rejected Loomis’s immunity defense. Id. at 971-73. The
“state-created danger exception” is established in the Sev-
enth Circuit, the judge observed, and it should have been
obvious to any guard that armed prisoners must not be
turned loose in hospitals. That was enough, the judge wrote,
to make the right “clearly established.”

The problem with this reasoning is that it starts and ends
at a high level of generality. The “state-created danger ex-
ception” to DeShaney does not tell any public employee what
to do, or avoid, in any situation. It is a principle, not a rule.
And it is a principle of liability, not a doctrine (either a
standard or a rule) concerning primary conduct. For that one
must look elsewhere, but the district judge did not do so.
Nor have the plaintiffs.

Citing decisions of this circuit, the district court under-
stood the “state-created danger exception” to DeShaney as
equivalent to a constitutional rule prohibiting any act, by
any public official, that increases private danger. If that were
so, however, then DeShaney itself is wrongly decided. Joshua
4 No. 18-2054

DeShaney was removed from his father’s custody and hospi-
talized as a result of injuries. Joshua’s stepmother reported
that Randy DeShaney, Joshua’s father, regularly abused him
physically. After deliberation, state child-welfare officials
decided to return Joshua to his father. Randy then beat and
permanently injured Joshua. No one could have doubted
that the child-welfare officials’ decision increased Joshua’s
danger, compared with his safety in the hospital—indeed,
that increase was the foundation of his claim for damages—
but the Supreme Court nonetheless held that the Due Pro-
cess Clause of the Fourteenth Amendment does not require a
state to protect its residents from private violence. Other
courts cannot create an “exception” to DeShaney that contra-
dicts this principle, and as a result we cannot treat the “state-
created danger exception” as a rule of primary conduct for-
bidding any acts by public officials that increase private
dangers. (We have a few words toward the end of this opin-
ion about what the “exception” might mean.)

Over and over, the Supreme Court has held that a right is
“clearly established” only if it has been “defined with speci-
ficity.” Escondido, 139 S. Ct. at 503. See also, e.g., Kisela v.
Hughes, 138 S. Ct. 1148, 1152-53 (2018); District of Columbia v.
Wesby, 138 S. Ct. 577, 590 (2018); White v. Pauly, 137 S. Ct. 548,
552 (2017); San Francisco v. Sheehan, 135 S. Ct. 1765, 1775-76
(2015); Mullenix v. Luna, 136 S. Ct. 305, 308 (2005); Carroll v.
Carman, 574 U.S. 13, 16-17 (2014); Wood v. Moss, 572 U.S. 744,
757-58 (2014); Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014);
Stanton v. Sims, 571 U.S. 3, 5-6 (2013); Reichle v. Howards, 566
U.S. 658, 664 (2012); Brosseau v. Haugen, 543 U.S. 194, 198
(2004). These decisions, and more, tell us that a high level of
generality won’t do.
No. 18-2054 5

The district judge resisted the conclusion that “state-
created danger” is too general by observing that Loomis’s
proposal—something like a case establishing how guards
must prevent being overpowered by prisoners in hospitals
during bathroom breaks—would be too particular. 308 F.
Supp. 3d at 972. By insisting on a case identical to the one at
hand, public employees could insulate themselves from lia-
bility, for every case differs in some respect from its prede-
cessors. We agree with the district judge that a search for
identity is not required and would be a fool’s errand. A prin-
ciple can be clearly established without matching a later
case’s facts. The search is for an appropriate level of generali-
ty, not the most particular conceivable level. And the level of
generality is appropriate when it establishes the rule in a
way that tells a public employee what the Constitution re-
quires in the situation that employee faces. See, e.g., Mul-
lenix, 136 5. Ct. at 308-09 (citing other cases).

Consider this possible rule: “The Constitution (through
the Due Process Clause) requires guards to prevent prison-
ers from escaping.” Loomis had to know that keeping Salters
under control was his responsibility as a matter of Illinois
law and his employer’s instructions; this hypothetical rule
would have told him that the Constitution, too, requires this.
It would not be necessary for the rule to say anything about
hospitals, or toilets, or how strong a prisoner may be. But
this is only a hypothetical, because other litigants have ar-
gued that the Constitution requires guards to prevent es-
capes, and every appellate court that has considered the pos-
sibility has rejected it as incompatible with DeShaney. See,
e.g., Rios v. Del Rio, 444 F.3d 417 (Sth Cir. 2006); Davis v. Ful-
ton County, 90 F.3d 1346 (8th Cir. 1996). See also Common-
wealth Bank & Trust Co. v. Russell, 825 F.2d 12 (3d Cir. 1987)
6 No. 18-2054

(same outcome before DeShaney). It is not possible to say that
a constitutional obligation to keep a prisoner under control
has been “clearly established” when every appellate court
that has addressed the question has held that the proposed
obligation does not exist.

Because “clearly established” law does not support the
§1983 claim against Loomis, we need not decide whether we
agree with these decisions. See Pearson v. Callahan, 555 U.S.
223, 231-43 (2009). But it is apt to add that we also have not
approved the district court’s view that the complaint states a
good constitutional claim. Plaintiffs allege that Loomis was
incompetent, but the Due Process Clause generally does not
condemn official negligence. See Daniels v. Williams, 474 U.S.
327 (1986). Plaintiffs depict themselves as frightened but not
otherwise injured, and, even in the law of torts, negligent
actors are not liable for conduct that threatens bodily harm
but produces only emotional distress. Restatement (Second) of
Torts §436A (1965). And then there is DeShaney.

In recent years the “state-created danger exception” has
been treated as if it were a rule of common law. It has been
elaborated and turned into a “three-part test”:

First, the state, by its affirmative acts, must create or increase a

danger faced by an individual. Second, the failure on the part of

the state to protect an individual from such a danger must be the

proximate cause of the injury to the individual. Third, the state’s
failure to protect the individual must shock the conscience.

Johnson v. Rimmer, No. 18-1321 (7th Cir. Aug. 30, 2019), slip
op. 23, quoting from King v. East St. Louis School District, 496
F.3d 812, 817-18 (7th Cir. 2007) (internal citations and quota-
tion marks deleted). None of these elements has its prove-
nance in DeShaney.
No. 18-2054 7

Every once in a while, a court should step back and ask
whether local jurisprudence matches the instructions from
higher authority. If taken literally, the approach that Johnson
attributes to King would have justified liability in DeShaney.
The Justices themselves saw the matter differently. They
hinted that the Constitution might support liability when a
state has a duty that “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 im-
posed on his freedom to act on his own behalf.” 489 U.S. at
200. That is why the Constitution requires the state to supply
prisoners with medical care and protect them from each oth-
er; having disabled resort to self-help (or to the market in
private services), the state must provide a substitute. Several
decisions in this circuit find liability outside of prisons when
the state has disabled or undermined self-help or sources of
private assistance. See, e.g., Paine v. Cason, 678 F.3d 500, 510-
11 (7th Cir. 2012); Reed v. Gardner, 986 F.2d 1122 (7th Cir.
1993). Those cases have a footing in DeShaney that the “three-
part test” lacks.

Other circuits have their own approaches. Estate of Ro-
main v. Grosse Pointe Farms, 2019 U.S. App. LEXIS 24164 (6th
Cir. Aug. 14, 2019), discusses the “three-part test” (with parts
different from those of Jonson and King) that the Sixth Cir-
cuit uses to evaluate claims of state-created danger. Judge
Murphy filed a concurring opinion, 2019 U.S. App. LEXIS
24164 at *14-23, questioning whether the Sixth Circuit’s ap-
proach can be reconciled with DeShaney and suggesting that
it be refocused on the question whether the state has im-
paired the plaintiff's powers of self-help or ability to obtain
help from others. All three members of the panel joined this
opinion, making it an alternate majority opinion.
8 No. 18-2054

Estate of Romain did not need to decide whether the Sixth
Circuit’s approach should be revised, just as we do not need
to decide whether Jolinson and King are compatible with
Paine, Reed, and DeShaney. These subjects should be present-
ed for consideration in some future case, when the outcome
may turn on the difference. For now, it is enough to say that
even if Loomis is civilly and criminally liable as a matter of
Illinois law, he is entitled to qualified immunity from a claim
based on the federal Constitution, so the district court’s deci-
sion is

REVERSED.
