                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 07a0039p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                       X
 BRADDOCK, Deceased, by his next friend (Guardian) -
 JUSTIN HUDSON, Surviving Child of JENNIFER
                                                        -
                                                        -
 Pamela Davis; PAMELA DAVIS,
                                Plaintiffs-Appellees, -
                                                            No. 05-6575

                                                        ,
                                                         >
            v.                                          -
                                                        -
                                                        -
                                         Defendants, -
 SUSAN HUDSON, et al.,

                                                        -
                                                        -
                                                        -
 MEMPHIS POLICE OFFICER OWEN, #6420,
 individually; MEMPHIS POLICE OFFICER MORRIS,           -
                                                        -
                              Defendants-Appellants. -
 #1866, individually,

                                                        -
                                                       N
                         Appeal from the United States District Court
                      for the Western District of Tennessee at Memphis.
                      No. 04-02662—Bernice B. Donald, District Judge.
                                       Argued: November 29, 2006
                                  Decided and Filed: January 26, 2007
            Before: BOGGS, Chief Judge; COOK, Circuit Judge; ROSE, District Judge.*
                                            _________________
                                                 COUNSEL
ARGUED: Mary Elizabeth McKinney, GODWIN, MORRIS, LAURENZI & BLOOMFIELD,
Memphis, Tennessee, for Appellants. William T. Winchester, THE LAW OFFICES OF WILLIAM
T. WINCHESTER, Memphis, Tennessee, for Appellees. ON BRIEF: Mary Elizabeth McKinney,
Deborah E. Godwin, GODWIN, MORRIS, LAURENZI & BLOOMFIELD, Memphis, Tennessee,
for Appellants. William T. Winchester, THE LAW OFFICES OF WILLIAM T. WINCHESTER,
Memphis, Tennessee, for Appellees.




        *
          The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio, sitting by
designation.


                                                        1
No. 05-6575           Hudson, et al. v. Hudson, et al.                                          Page 2


                                        _________________
                                            OPINION
                                        _________________
        COOK, Circuit Judge. Defendants, two Memphis police officers, appeal the district court’s
denial of qualified immunity from the claims against them by Plaintiffs Justin Hudson and Pamela
Davis for violating Jennifer Braddock’s Fourteenth Amendment right to due process of law. We
reverse and hold that these defendants are entitled to qualified immunity.
                                                   I
        Because this appeal comes to us on a motion to dismiss, we construe the complaint liberally
in the plaintiffs’ favor and accept all its factual allegations and inferences as true. See Shepherd v.
Wellman, 313 F.3d 963, 967 (6th Cir. 2002). First, we briefly recount the tragedy that led to this
lawsuit. Jennifer Braddock was issued three protective orders against James Hudson, the father of
her son, because Hudson repeatedly abused Braddock. In August 2001, while the third protective
order was in effect, Hudson broke into Braddock’s home and threatened her. She called the
Memphis Police Department, but it made no attempt to find him. Hudson eventually was convicted
of aggravated criminal trespass, vandalism, and violating the protective order, and sentenced to one
week in jail. Over the next two years, Braddock called the police several times to complain about
various violations of the protective order, including acts of physical violence, but the Memphis
Police took no action. Braddock’s struggle against Hudson’s violence ended when Hudson broke
into her home, killed her and two of her friends, then turned the gun on himself and committed
suicide.
        Justin Hudson, Braddock’s son with Hudson, and Pamela Davis, Braddock’s mother and
Justin’s guardian, sued James’s sister Susan Hudson, who drove James Hudson to Braddock’s house
on the day of the shooting, the Memphis Police Department, and a number of Memphis Police
Officers for violating the Fourteenth Amendment and various state-law rights. Two of the officers
moved to dismiss the constitutional claims against them, arguing that they were entitled to qualified
immunity. The district court denied their motion, holding that qualified immunity was not available
to them because their actions were not discretionary under Tennessee law. They properly
commenced this interlocutory appeal.
                                                   II
         While the denial of a motion to dismiss is an interlocutory order generally not appealable,
we recognize an exception to this general rule when a qualified immunity defense is denied. Phelps
v. Coy, 286 F.3d 295, 298 (6th Cir. 2002); Johnson v. Jones, 515 U.S. 304, 311-12 (1995). We
recognize this exception to ensure officers entitled to qualified immunity are in fact immunized from
suit, a benefit that would be lost if an officer were erroneously required to proceed to trial. See
Johnson, 515 U.S. at 312.
       We review de novo the application of qualified immunity to a particular defendant.
Swiecicki v. Delgado, 463 F.3d 489, 497 (6th Cir. 2006). When reviewing a district court’s denial
of a motion to dismiss, we reverse “only if it is clear that no violation of a clearly established right
could be found under any set of facts that could be proven consistent with the allegations or
pleadings.” Jackson v. Schultz, 429 F.3d 586, 589 (6th Cir. 2005).
                                                  III
      Examining first whether qualified immunity is a defense available to these officers, we
acknowledge that it shields “government officials performing discretionary functions” from civil
No. 05-6575               Hudson, et al. v. Hudson, et al.                                                    Page 3


liability “insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982); see also Davis v. Holly, 835 F.2d 1175, 1178 (6th Cir. 1987). The district court, citing to
Matthews v. Pickett County, 996 S.W.2d 162, 164 (Tenn. 1999), for the proposition that arresting
Hudson was not discretionary under Tennessee law, held that qualified immunity was unavailable
to these officers. We disagree because Matthews, which concerned governmental tort immunity
under Tennessee law, does not control our analysis of whether the federal defense of qualified
immunity is available to officers sued under 42 U.S.C. § 1983 for violating a federal right.
        Officials generally may assert a qualified immunity defense in all but the narrow class of
circumstances in which they perform “ministerial” functions where the relevant law “specif[ies] the
precise action that the official must take in each instance,” thereby eliminating discretion. Davis v.
Scherer, 468 U.S. 183, 196 n.14 (1984); see also Sellers ex rel. Sellers v. Baer, 28 F.3d 895, 902
(8th Cir. 1994). As long as the official’s authority is discretionary, it remains so “however
egregiously it is abused.” Davis, 468 U.S. at 196 n.14. In denying qualified immunity, the district
court focused on the compulsory verb “shall” in the Tennessee statute: “any law enforcement officer
shall arrest [the ‘respondent’ of a protective order] without a warrant if [the] officer has reasonable
cause to believe [the respondent] has violated or is in violation of an order for protection.” Tenn.
Code Ann. § 36-3-611(a).
        But seemingly mandatory statutes, such as this one, and police discretion coexist frequently.
See Town of Castle Rock v. Gonzales, 545 U.S. 748, ___, 125 S. Ct. 2796, 2806 (2005) (citing City
of Chicago v. Morales, 527 U.S. 41, 62 (1999)). Although calling for mandatory arrests (“shall”),
the statute also requires the police officer to have “reasonable cause” to arrest,1 which requires a
police officer to exercise at least some discretion. The statute certainly does not specify the precise
action the officer must take when enforcing each and every protective order. Because police officers
retain some discretion when enforcing protective orders under the Tennessee statute, we hold that
the appellants may avail themselves of the qualified immunity defense.
                                                         IV
                                                          A
        Having determined that qualified immunity is available to these officers, we next consider
whether they are entitled to it. We engage in the well-established two-step inquiry specified in
Saucier v. Katz, 533 U.S. 194, 200 (2001), to decide first whether the defendant’s conduct violated
a federal right held by the plaintiff, id., and second whether that right was clearly established at the
time of the violation. Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
       Plaintiffs’ counsel declined our invitation at oral argument to clarify whether his clients’
claims are grounded in substantive or procedural due process. Regardless, we hold that the
appellants are entitled to qualified immunity from suit under either theory.
                                                          B
        As a general principle, state actors cannot be held liable for private acts of violence under
a substantive due process theory. DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S.
189, 196 (1989); see also Castle Rock, 545 U.S. at ___, 125 S. Ct. at 2810. We recognize two
exceptions to this rule: (1) when the state has a special relationship to the victim, and (2) when the
state creates the danger that led to the victim’s harm. Jones v. Union County, 296 F.3d 417, 428 (6th

         1
           Indeed, it would be difficult for us to square the Tennessee statute with the Fourth Amendment if it allowed
for arrests without probable cause.
No. 05-6575           Hudson, et al. v. Hudson, et al.                                         Page 4


Cir. 2002). In Jones, the plaintiff claimed that Union County, Tennessee, violated her substantive
due process rights when it failed to serve a protective order on her ex-husband, who later attacked
her. We held that “the Tennessee Legislature’s imposition of affirmative duties upon state officials
to serve ex parte orders of protection timely does not give rise to a due process claim cognizable
under § 1983 based upon a special relationship between Union County and Plaintiff.” Id. Similarly,
we hold that a protection order does not create a special relationship between police officers and the
individual who petitioned for that order.
         Nor may the plaintiffs establish their claims under the state-created-danger theory. Under
this theory, a plaintiff must show “an affirmative act that creates or increases the risk, a special
danger to the victim as distinguished from the public at large, and the requisite degree of state
culpability.” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 464 (6th Cir. 2006) (citing Kallstrom
v. City of Columbus, 136 F.3d 1055, 1066-67 (6th Cir. 1998)). These officers’ alleged inaction fails
to satisfy the “affirmative act” requirement necessary to establish a state-created-danger substantive
due process claim. We need not examine the remaining Kallstrom elements to conclude that these
officers did not violate the Fourteenth Amendment, and we hold that they are entitled to qualified
immunity to the extent the plaintiffs’ claims are based on such a theory.
                                                  C
        To establish a procedural due process claim, a plaintiff must show that she had a property
interest of which she was deprived without due process of law. U.S. Const. amend. XIV. We must
determine “whether what [Tennessee] law has given [Braddock] constitutes a property interest for
purposes of the Fourteenth Amendment.” Castle Rock, 545 U.S. at ___, 125 S. Ct. at 2803. We first
determine whether Tennessee has created a property interest under its law, see Bd. of Regents v.
Roth, 408 U.S. 564, 577 (1972), and then decide whether that interest is protected by the Fourteenth
Amendment, an issue that “is ultimately one of federal constitutional law.” Castle Rock, 545 U.S.
at ___, 125 S. Ct. at 2803. Mandatory enforcement of a protective order does not necessarily give
a petitioner an entitlement to its enforcement, nor does it “resemble any traditional conception of
property.” Id. at ___, 125 S. Ct. at 2808-09.
         We recently applied Castle Rock to the enforcement of a Kentucky statute, holding that its
enforcement “cannot be considered mandatory for purposes of creating a protected property interest
under the Due Process Clause.” Howard v. Bayes, 457 F.3d 568, 576 (6th Cir. 2006). Unlike the
statute at issue in Howard that granted officers “purely discretionary authority to arrest,” id. at 574
n.6, the Tennessee Supreme Court considers arrests under the statute at issue here “operational” as
opposed to “discretionary.” Matthews, 996 S.W.2d at 164-65. As we noted, supra, this statute
grants officers at least some discretion to determine “reasonable cause.” Tenn. Code Ann. § 36-3-
611(a). While Matthews may have defined the arrests as “operational” to remove state immunity
for a state-law negligence claim, it did not decide whether Tennessee law creates a property interest
in the enforcement of protective orders.
        Even if Tennessee law might be read to create some type of property interest, that interest
must still rise to the level of a constitutionally protected interest under the Due Process Clause of
the Fourteenth Amendment. Braddock’s interest in the enforcement of the protection order,
specifically the arrest of Hudson, would arise incidentally “out of a function that government actors
have always performed—to wit, arresting people who they have probable cause to believe have
committed a criminal offense.” Castle Rock, 545 U.S. at ___, 125 S. Ct. at 2809. We share the
Supreme Court’s skepticism in Castle Rock that this type of entitlement could ever “constitute a
‘property’ interest for purposes of the Due Process Clause.” Id. Imbuing these restraining orders
with constitutional property value, protected by the Due Process Clause, would needlessly interfere
with Tennessee’s choice of how to allocate the resources necessary to enforce its domestic violence
No. 05-6575           Hudson, et al. v. Hudson, et al.                                         Page 5


laws. We thus hold that the enforcement of Tennessee protective orders does not create a property
interest protected by the Due Process Clause of the Fourteenth Amendment.
                                                  D
        The officers’ failure to arrest Hudson offends neither the procedural nor substantive prongs
of the Fourteenth Amendment’s Due Process Clause. Because we find no violation of a federal
right, we need not proceed to the second Saucier step. We hold that the appellants are entitled to
qualified immunity from the plaintiffs’ constitutional claims against them.
                                                  V
        While this loss of life was undeniably tragic, these officers simply did not violate the United
States Constitution by failing to prevent James Hudson from murdering Jennifer Braddock. For the
foregoing reasons, we reverse the district court’s denial of the appellants’ motion to dismiss and
instruct it to grant that motion.
