In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 18-3524

THE ESTATE OF SWANNIE HER, et al.,

Plaintiffs-Appellants,

v.

CRAIG HOEPPNER,

Parks Director for the

City of West Bend, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 17-CV-1015 — Nancy Joseph, Magistrate Judge.

____________________

ARGUED MAY 29, 2019 — DECIDED SEPTEMBER 26, 2019

____________________

Before KANNE, SYKES, and BRENNAN, Circuit Judges.

SYKES, Circuit Judge. A June afternoon in Wisconsin took a 

tragic turn when six-year-old Swannie Her was found 

unresponsive on the bottom of a man-made swimming pond

operated by the City of West Bend. She never regained 

consciousness and died a few days later.
2 No. 18-3524

Swannie’s estate, her mother, and her siblings filed suit 

alleging that she died as a result of federal constitutional and 

state-law violations by the West Bend Parks Director, the 

seven lifeguards who were on duty, and the City. The constitutional claim arises under 42 U.S.C. § 1983 and alleges a 

deprivation of life without due process in violation of rights 

secured by the Fourteenth Amendment. The theory of the 

claim rests on two contentions: (1) the City’s swimming 

pond is a state-created danger and (2) the defendants acted 

or failed to act in a way that increased the danger. A magistrate judge entered summary judgment for the defendants,

ruling that the evidence is insufficient to permit a reasonable 

jury to find a due-process violation premised on a statecreated danger. The judge relinquished jurisdiction over the 

state-law claims, setting up this appeal.

We affirm. Liability for injury from a state-created danger 

is an exception to the general rule that the Due Process 

Clause confers no affirmative right to governmental aid.

DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 

196 (1989). Our caselaw construes this exception narrowly, 

and the judge correctly concluded that this case falls outside 

its boundaries. No reasonable jury could find that the defendants created a danger just by operating a public swimming pond or that they did anything to increase the danger 

to Swannie before she drowned. Nor was their conduct so 

egregious and culpable that it “shocks the conscience,” a 

necessary predicate for a court to find that an injury from a 

state-created danger amounts to a due-process violation. 

I. Background

The City of West Bend owns and operates Regner Park, a 

large public area with several recreational options. During 
No. 18-3524 3

the summer months, patrons can cool off in the park’s manmade swimming pond for a small fee. Like other bodies of 

water with organic floors, the Regner Park pond is murky. 

Visibility is limited to roughly six inches below the surface, 

and swimmers more than two feet from shore cannot see the 

bottom.

The pond is divided into three zones: Zone 1, the general 

swimming area, ranges in depth up to a maximum of five 

feet. Zone 2, which features a diving raft, is the center of the 

pond and reaches a depth of fifteen feet. And Zone 3, the 

children’s play area, is no more than three-feet deep. Ropes 

and buoys cordon off the three zones; they also mark points 

where the water gets deeper. Swimmers wishing to enter 

Zone 2—or otherwise enter water deeper than their armpits—must pass a swim test, at which point they receive a 

special wristband signifying that they are permitted to do so.

Lifeguards employed by the City patrol the pond. Each 

lifeguard is certified in basic lifeguarding practices and 

receives pond-specific instruction. They also receive the West 

Bend Aquatic Manual & Emergency Response Plan, a guidebook to preventing accidents at the pond. Most importantly, 

the manual urges lifeguards to keep close watch on inexperienced swimmers and small children. The parties debate

whether those surveillance responsibilities are “mandatory,” 

as the plaintiffs characterize them, or if lifeguards “[a]re 

allowed to use their judgment and discretion when scanning 

the water to determine where to focus their attention,” as the 

defendants maintain. 

On June 11, 2016, the Her family—mother Connie, her 

fiancé, and nine of her ten children—gathered in Regner 

Park to celebrate a relative’s second birthday. The party took 
4 No. 18-3524

place at a picnic area near the swimming pond. Young

Swannie arrived at roughly 5 p.m. that afternoon with two of 

her siblings. After greeting family and friends, she donned 

her bathing suit and obtained her mother’s permission to 

swim in the pond. Connie did not accompany Swannie but 

rather asked two of her older children—Evangelin, age 9, 

and Thvon, age 14—to keep an eye on their younger sister. 

Swannie received a general admission wristband, but she 

never took the swim test required to swim in water above 

her armpits. 

The Her children began swimming in Zone 3. At some 

point Swannie said she wanted to go see Ekin, another

sibling, in a deeper part of the pond. No one knows precisely 

when or where Swannie went beneath the surface; neither

the seven lifeguards on duty nor any member of the Her 

family or anyone else at the pond witnessed it. But at 

5:55 p.m. a man swimming in Zone 2 discovered Swannie 

unresponsive at the bottom of the pond. He carried her out 

of the water and called for help. The lifeguards immediately 

called 911 and began resuscitation efforts. Emergency medical responders took Swannie to a nearby hospital, but she 

never regained consciousness and died several days later.

Swannie’s estate, together with Connie and her surviving 

children (collectively “the Estate”), filed this lawsuit the

following year. The defendants are Parks Director Craig 

Hoeppner, the City and its insurer, and the seven lifeguards 

who were on duty that day. The complaint seeks damages 

under § 1983 for violation of Swannie’s Fourteenth Amendment right to due process. The claim rests on the doctrine of 

“state-created danger”: the Estate claims that the defendants 

created and operated a dangerously murky pond and failed
No. 18-3524 5

to follow established lifeguarding rules, increasing the 

danger to Swannie. The suit also raised state-law claims for

negligence, wrongful death, and a violation of Wisconsin’s 

Safe Place Statute.

The defendants moved for summary judgment, and the 

magistrate judge granted the motion, concluding that the 

Estate lacks evidence that the defendants created a danger 

by operating the swimming pond or increased a danger by 

their conduct on the day she drowned. The judge explained

that any factual disputes about the adequacy of the pond’s 

safety protocols raised at most a potential question of negligence, not a violation of due process. The judge relinquished 

supplemental jurisdiction over the state-law claims and 

entered final judgment for the defendants.

II. Discussion

We review a summary judgment de novo, construing the 

record and drawing all reasonable inferences in the plaintiffs’ favor as the nonmoving parties. Wilson-Trattner v. 

Campbell, 863 F.3d 589, 593 (7th Cir. 2017). Summary judgment is warranted if “the movant shows that there is no 

genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). 

We review the magistrate judge’s decision to relinquish 

supplemental jurisdiction for an abuse of discretion. Rivera v. 

Allstate Ins. Co., 913 F.3d 603, 618 (7th Cir. 2018).

The Fourteenth Amendment provides that “[n]o state 

shall ... deprive any person of life, liberty, or property, 

without due process of law.” U.S. CONST. amend. XIV, § 1.

The Supreme Court has cautioned that the Due Process 

Clause “does not transform every tort committed by a state 
6 No. 18-3524

actor into a constitutional violation.” DeShaney, 489 U.S. at 

202. More specifically, the Clause “confer[s] no affirmative 

right to governmental aid, even where such aid may be

necessary to secure life, liberty, or property interests of 

which the government itself may not deprive the individual.” Id. at 196.

There are two recognized exceptions to the DeShaney

rule. First, when a public official “affirmatively places a 

particular individual in a position of danger the individual 

would not otherwise have faced,” the official may be liable 

for a due-process violation if injury results. Monfils v. Taylor, 

165 F.3d 511, 516 (7th Cir. 1998) (quotation marks omitted).

The second exception comes into play when “the state has a 

‘special relationship’ with a person, that is, if the state has 

custody of a person, thus cutting off alternative avenues of 

aid.” Id.

The exception for state-created dangers is at issue here, 

but it’s quite narrow and reserved for “egregious” conduct

by public officials. Doe v. Village of Arlington Heights, 782 F.3d 

911, 917 (7th Cir. 2015). A due-process claim of this kind

requires proof of three elements: (1) the government, by its 

affirmative acts, created or increased a danger to the plaintiff; (2) the government’s failure to protect against the danger

caused the plaintiff’s injury; and (3) the conduct in question 

“shocks the conscience.” Flint v. City of Belvidere, 791 F.3d 

764, 770 (7th Cir. 2015) (quotation marks omitted). The third 

element—conscience-shocking conduct—requires a culpable 

state of mind equivalent to deliberate indifference. King v. 

E. St. Louis Sch. Dist. 189, 496 F.3d 812, 819 (7th Cir. 2007). 

Elsewhere we’ve referred to this as a requirement of criminal 
No. 18-3524 7

recklessness. See Slade v. Bd. of Sch. Dirs. of Milwaukee, 702 

F.3d 1027, 1033 (7th Cir. 2012).

Viewing the evidence in the light most favorable to the 

Estate, we agree with the magistrate judge that the record 

falls far short on each of these elements. The Estate emphasizes that the swimming pond was “murky” and had poor 

visibility and “uneven topography.” That’s true of manmade swimming holes in general, and many natural lakes as 

well. There’s no evidence that the Regner Park swimming 

pond is distinctively dangerous.

The Estate also points to testimony from the defense expert describing swimming as an “inherently dangerous 

activity.” That’s certainly true. As even experienced swimmers will concede, any body of water—whether man-made

or natural—presents inherent dangers, especially to children. See id. at 1032 (observing that most adults understand 

that “lakes and other natural bodies of water, even inland 

water, are dangerous because of currents and uneven depth, 

and especially to children”). Swimming, or participating in

any water-based recreational activity for that matter, exposes 

participants to risk of injury, including drowning.

And while operating any public swimming facility invites swimmers to expose themselves to the dangers inherent in this activity, liability under the Due Process Clause 

doesn’t attach “just because the danger materializes.” Id. at 

1031. After all, “[d]angers to the public at large are insufficient for constitutional purposes.” See Buchanan-Moore v. 

County of Milwaukee, 570 F.3d 824, 828 (7th Cir. 2009). The 

Estate needs specific evidence that this particular swimming 

pond is especially dangerous for a young child like Swannie.

It has none. 
8 No. 18-3524

In the end, the Estate’s argument boils down to the remarkable assertion that a municipal swimming pond is by 

its nature a state-created danger. That proposition, if adopted, would turn every tort injury at a public pond or pool into 

a constitutional violation. Federal constitutional claims

involving public playgrounds and practice fields wouldn’t 

be far behind. Indeed, the Estate’s preferred result “would 

potentially set up a federal question whenever an accident 

happens during activities sponsored by the state.” Waybright 

v. Frederick County, 528 F.3d 199, 208 (4th Cir. 2008). But the 

Fourteenth Amendment doesn’t displace state tort law by

transforming accidents at public facilities into federal constitutional claims. See, e.g., Daniels v. Williams, 474 U.S. 327, 332 

(1986) (“Our Constitution ... does not purport to supplant 

traditional tort law in laying down rules of conduct to 

regulate liability for injuries that attend living together in 

society.”).

Perhaps aware that its broad position is untenable, the 

Estate falls back on a narrower argument that the defendants 

increased a danger to Swannie. But this theory is no stronger

because there’s no evidence that the defendants actively “did 

something that turned a potential danger into an actual 

one.” Sandage v. Bd. of Comm’rs of Vanderburgh Cty., 548 F.3d 

595, 600 (7th Cir. 2008). The Estate argues that the City failed 

to take proper safety precautions, like dredging the bottom

of the pond, and the lifeguards failed to comply with the 

park’s “mandatory” rules involving small children. And it 

emphasizes evidence that the pond was especially crowded 

on the afternoon in question, and at one point a lifeguard

admitting to being “overwhelmed” by the number of swimmers.
No. 18-3524 9

But we’ve explained that DeShaney draws an “essential 

distinction between endangering and failing to protect.” Id. at 

599 (emphases added). The former may amount to a constitutional violation if other facts are present; the latter is 

simple negligence. Moreover, no evidence suggests that the 

lifeguards disregarded their training. Each lifeguard was 

charged with scanning the swimming pond for signs of 

trouble and responding as needed. That Swannie slipped 

beneath the surface without being noticed by anyone—

lifeguard, family member, or anybody else at the pond—

reflects the heartbreaking reality of childhood drownings. 

But it’s not evidence that the defendants took affirmative 

steps that created or increased a danger to Swannie.

The Estate’s difficulty articulating a theory of the case 

that might situate this claim within the law of state-created 

dangers reflects the fundamental problem with its position: 

this is at most a negligence claim. To be sure, “[n]ot paying 

enough attention to a child and thus allowing the child to ... 

drown is terribly tragic, and possibly even negligent.” 

DeAnzona v. City & County of Denver, 222 F.3d 1229, 1236 

(10th Cir. 2000). But mere negligence is “categorically beneath the threshold of constitutional due process.” County of 

Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Indeed, “governmental defendants must act with a mens rea akin to 

criminal recklessness for constitutional liability to attach.”

Flint, 791 F.3d at 770.

We made this point clear in Slade, another drowning case 

brought on a theory of state-created danger. There, a middleschool student drowned on a field trip to a park with a large 

natural lake. 702 F.3d at 1028–29. Swimming was anticipated; indeed, parents were asked to indicate when signing the 
10 No. 18-3524

permission slip whether their student was allowed to swim. 

The school district had a rule prohibiting swimming on field 

trips unless a lifeguard is present. No lifeguard was present 

that day, but the assistant principal let the students swim 

anyway and a seventh-grade boy drowned. We noted that 

the assistant principal “was negligent and her negligence 

enhanced the danger inherent in swimming in a lake: she 

disobeyed the rule requiring the presence of a lifeguard even 

though she knew that portions of the designated swimming 

area were so deep that the water was over the head of some 

of the kids.” Id. at 1032. While that negligence may have 

increased the risk of danger to the student, it was not the 

type of reckless, conscience-shocking conduct that might be 

actionable as a constitutional violation. Id. at 1032–33.

Slade involved far more blameworthy conduct than what 

occurred here, and still we rejected the due-process claim. 

Despite the tragic loss of life, Slade hewed closely to the 

principle that the Due Process Clause cannot be interpreted 

“to impose federal duties that are analogous to those traditionally imposed by state tort law.” Collins v. City of Harker 

Heights, 503 U.S. 115, 128 (1992). We do the same here. On 

this record, no reasonable jury could find that the defendants 

created or increased a danger to Swannie or that they were 

deliberately indifferent to the danger. The judge was right to 

enter summary judgment for the defendants.

 AFFIRMED