UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARTHA W. RUTHERFORD,
individually, and in her capacity as
Administratrix of the Estate of
Steven R. Rutherford, deceased,
Plaintiff-Appellant,

v.

CITY OF NEWPORT NEWS, Virginia, a
municipal corporation; JAY CAREY,
in his official capacity as former
Chief of Police of the City of
                                                               No. 96-1535
Newport News, Virginia; BARRY
HADDIX, individually, and in his
official capacity as a former Police
Sergeant for the City of Newport
News, Virginia; T. A. ZEITLER;
JAMES O. WILLIAMSON, individually,
and in their official capacities as
Police Sergeants for the City of
Newport News, Virginia,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Robert G. Doumar, Senior District Judge.
(CA-95-8-4)

Argued: January 31, 1997

Decided: February 27, 1997

Before WILKINSON, Chief Judge, and WILLIAMS and
MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Andrew Michael Sacks, SACKS & SACKS, Norfolk,
Virginia, for Appellant. F. Bradford Stillman, MCGUIRE, WOODS,
BATTLE & BOOTHE, L.L.P., Norfolk, Virginia; Alan Brody Rash-
kind, FURNISS, DAVIS, RASHKIND & SAUNDERS, Norfolk, Vir-
ginia; Allen Link Jackson, CITY ATTORNEY'S OFFICE FOR THE
CITY OF NEWPORT NEWS, Newport News, Virginia, for Appel-
lees. ON BRIEF: Stanley E. Sacks, SACKS & SACKS, Norfolk,
Virginia, for Appellant. Robert W. McFarland, David M. Young,
MCGUIRE, WOODS, BATTLE & BOOTHE, L.L.P., Norfolk, Vir-
ginia; Kenneth F. Yoffy, SAUNDERS, COPE, OLSON & YOFFY,
Newport News, Virginia; R. Barrow Blackwell, Jonathan L. Thorn-
ton, KAUFMAN & CANOLES, Norfolk, Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Martha W. Rutherford (Mrs. Rutherford), administratrix of the
estate of Steven R. Rutherford (Officer Rutherford), brought an action
under 42 U.S.C.A. § 1983 (West 1994), against the City of Newport
News, Virginia (the City); Jay Carey, the former police chief of the
City; and Barry Haddix, T. A. Zeitler, and James O. Williamson, each
current or former sergeants with the City police. 1 In the five counts
of her amended complaint, she alleged that the Defendants had
deprived her deceased husband of his Fourteenth Amendment due
_________________________________________________________________
1 The City, Carey, and the individual officers are referred to collec-
tively as the Defendants.

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process right to be protected from the danger they created when Offi-
cer Rutherford was murdered by robbers while he was acting in an
undercover operation.

The district court granted Defendants' motion to dismiss for failure
to state a claim. It further held that, in the alternative, the individual
officers were entitled to qualified immunity and therefore to summary
judgment. Mrs. Rutherford appeals, and we affirm on the reasoning
of the district court.

I.

Mrs. Rutherford's complaint, which for purposes of our ruling we
assume to be true, alleges that in January 1994, Officer Rutherford
was murdered during an ill-conceived, hastily prepared, and poorly
executed undercover operation. The events leading to his murder may
be briefly stated. After a series of armed robberies of pizza delivery
drivers, the City police department concocted a"sting" operation to
discover the identities of the robbers so they could be arrested and
prosecuted. When Officer Rutherford, who served as the decoy,
responded to a suspicious call with an empty pizza box, inadequate
back-up, poor radio communications, and only a skeletal plan, the
robbers quickly discovered his identity and shot him to death. The
back-up officers were unable to see or to prevent his murder. Thereaf-
ter, Mrs. Rutherford -- Officer Rutherford's widow-- brought this
action against the City and the officers involved in the operation.

II.

Mrs. Rutherford claims that the City and the officers violated their
affirmative obligation under the substantive Due Process Clause of
the Fourteenth Amendment to protect Officer Rutherford from harm.
She theorizes that, because the City and the officers placed Officer
Rutherford in harm's way, the "danger creation" exception implicitly
recognized in DeShaney v. Winnebago County Dep't Soc. Servs., 489
U.S. 189 (1989), created such an affirmative duty of protection. The
district court granted Defendants' 12(b)(6) motion to dismiss, reason-
ing that under Pinder v. Johnson, 54 F.3d 1169 (4th Cir.) (en banc),
cert. denied, 116 S. Ct. 530 (1995), the Defendants had no affirmative
obligation to protect Officer Rutherford. We review this decision de

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novo, using the same standards applied by the district court. See
Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996).

After carefully reviewing the briefs and the record, and after hear-
ing oral argument, we affirm on the reasoning of the district court. As
noted by the district court, Mrs. Rutherford's theory of the case
requires at the very least that the City have taken some affirmative
action to jeopardize Officer Rutherford's safety. Here, it would
require a considerable semantic stretch to argue that the City "acted"
by failing to adequately train Officer Rutherford, by failing to provide
sufficient back-up, and by failing to better plan the sting operation.
The only "action" taken by the City was to order the operation in the
first place. Finding a substantive due process obligation under such
circumstances would turn every police mishap into a potential source
of liability. See Walker v. Rowe, 791 F.2d 507, 511-12 (7th Cir. 1986)
(rejecting, pre-DeShaney, the type of affirmative duty claim here
advanced). More fundamentally, circuit precedent requires a custodial
relationship before substantive due process obligations arise. See
Pinder, 54 F.3d at 1175 ("Some sort of confinement of the injured
party -- incarceration, institutionalization, or the like -- is needed to
trigger the affirmative duty."); Piechowicz v. United States, 885 F.2d
1207, 1215 (4th Cir. 1989) (stating that "substantive due process pro-
tects the liberty interests only of persons affirmatively restrained . . .
from acting on their own behalf" (emphasis added)). Accordingly, we
adopt in full the district court's rejection of Mrs. Rutherford's sub-
stantive due process claim.2

AFFIRMED
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2 Given our holding that no substantive violation occurred, we have no
occasion to consider the district court's alternative holding that the indi-
vidual defendants are entitled to qualified immunity. See Karsten v. Kai-
ser Found. Health Plan, 36 F.3d 8, 11 (4th Cir. 1994) (per curiam)
(noting that alternative holdings should be avoided).

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