## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 16 2003 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THERESA CHRISTIANSEN, individually and as personal representative of the Estate of Sean Michael Christiansen, deceased; MEAGAN THOMPSON, on behalf of and for the benefit of Meagan Thompson, as a claimant to the estate, and in her individual capacity as widow, and Avery Christiansen, by and through her next friend, Meagan Thompson, as a claimant to the Estate and in her individual capacity as daughter, Plaintiffs - Appellants,

v. CITY OF TULSA, a municipality; RONALD PALMER, acting individually and in his capacity as chief of police, Tulsa Police Department, John Doe, SOT Supervisor acting in his capacity as Head of Special Operations Unit of the Tulsa Police Department; John Doe Officers I, II, III, IV, V and VI, acting as members of the Tulsa Police Department; JOHN DOE, SOT Supervisor acting individually and John Doe Officers I, II, III, IV, V, and VI, acting in their individual capacities; PSYCHOLOGICAL SERVICES FOR THE TULSA POLICE & FIRE DEPARTMENTS, INC., an Oklahoma Professional Corporation; DOUGLAS GENTZ, sued as Dr. Douglas Gentz, Ph.D., as President of the Psychological Services for the Tulsa Police & Fire Departments, Inc., and as an No. 02-5135* Honorable Milton I. Shadur, Senior District Judge for the Northern

District of Illinois, sitting by designation. - 2 - individual acting on behalf of the City of Tulsa, Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D. Ct. No. 01-CV-372-B)
Bruce Schultz, Sapulpa, Oklahoma, (Tom C. Lane, Sap ulpa, Oklahoma, James O. Goodwin, Tulsa, Oklahoma, and Allen Mitchell, Sapul pa, Oklahoma, with him on the briefs), appearing for Appellants. Marthanda J. Beckworth, Atkinson, Haskins, Nellis, Holeman, Phipps, Brittingham & Gladd, Tulsa, Oklahoma, appearing forAppellees Gentz and Psychological Services. Larry V. Simmons, Assistant City Attorney (Martha Rupp Carter, City Attorney, and John E. Dorman, Senior Assistant City Attorney, with him on the brief), Tulsa, Oklahoma, appearing for Appellees City of Tu lsa and Chief Ronald Palmer.

Before TACHA , Chief Circuit Judge, BRISCOE , Circuit Judge, and SHADUR, * District Judge.

TACHA, Chief Circuit Judge.1 Although plaintiffs’ complaint lists Dr. Gentz and Psychological Services

for the Tulsa Police & Fire Departments individuall y, we treat them collectively for purposes of this appeal. Plaintiffs’ complaintalso listed several “John Doe” defendants; the only parties before this court, how ever, are those set forth above. - 3 - Plaintiffs Theresa Christiansen, individually and a s personal representative of the estate of Sean Michael Christiansen, Meagan Thompson, and Avery Thompson, brought this suit under 42 U.S.C. § 1983 against defendants (1) the City of Tulsa, (2) Ronald Palmer, Tulsa Chief of Po lice, (3) Dr. Douglas Gentz, Ph.D., and (4) Psychological Services for the Tulsa Police & Fire Departments, 1 alleging constitutional violations under the Fifth and Fourteenth Amendments. The district court granted defendants’ respective m otions for summary judgment, concluding that plaintiffs’ allegations failed to e stablish a constitutional violation. For the reasons set forth below, we AFFIRM. I. Background On the morning of August 24, 1999, at approximately8:58 A.M., Meagan Thompson telephoned 911 and reported that her husband, Sean Christiansen, was armed with a loaded .38 caliber pistol and AK 47 an d had threatened to kill her and commit suicide. After contacting the police, T hompson left the apartment with their infant child, Avery Thompson. Christiansen, who was twenty-three years old, had ahistory of psychiatric problems. Dr. David Crass, M.D., a Tulsa psychiatr ist, was treating Christiansen1 According to Dr. Gentz, he “routinely respond[ed] when the [SOT] [was]

activated.” - 4 - for Attention Deficit Hyperactivity and Oppositiona l Defiant Disorder. During the days leading up to the incident, Christiansen h ad experienced problems with a new medication prescribed by Dr. Crass. On the dayin question, Christiansen had taken “20-30 Xanex [sic] pills ‘2-2.5’ milligrams, and had been drinking beer.” At approximately 9:00 A.M., Tulsa Police Department(“TPD”) officers arrived at Christiansen’s apartment. Upon arrival, Sergeants Nick Cory and Kirk Hewitt spoke to Christiansen on the telephone for approximately fifteen minutes. Christiansen told Sergeant Hewitt that he had “armo r piercing ammunition” for the AK 47 and that “he was going to start shooting and [the Tulsa Police Department had] just entered into a war.” SergeantCory instructed the officers to set up a perimeter around the apartment building an d evacuate persons in the neighboring apartment units. At 9:53 A.M., the TPD activated its Special Operations Team (“SOT”). TPD officers called Dr. Douglas Gentz, Ph.D., a lic ensed psychologist, to assist the SOT in their negotiations with Christian sen. Dr. Gentz was under contract with the City of Tulsa to provide certain psychological services and counseling to Tulsa’s police and fire departments a nd “operational assistance and support such as consulting for the [TPD’s SOT].” 12 Dr. Crass’ notes taken shortly after the incident indicate that he offered,

but did not request, to speak with Christiansen. I n his May 21, 2002, affidavit, Dr. Crass contends: “I asked Gentz on several occa sions if I could speak with Sean. Gentz said each time that it was not possibl e, and led me to believe Sean could not be contacted by telephone . . ., [explain ing that] it was the customary practice of the TPD during armed standoffs to contr ol contact between the armed subject and others.” We assume for purposes of thi s appeal that Dr. Crass requested to speak with Christiansen.

3 Based on Dr. Crass’ recollection, “Dr. [Gentz] was making sure that I wasn’t trying to do independent intervention at the same time he and the police were. I told him that we were not trying to interv ene, but that I would be glad to help in any way.” - 5 - While at the scene, Dr. Gentz assisted the TPD offi cers by generating a psychological profile of Christiansen. In order to obtain information relating to Christiansen’s psychological history and his condit ion, Dr. Gentz interviewed both Thompson and Dr. Crass. During their conversation, Dr. Crass requested to speak with Christiansen 2 and gave Dr. Gentz a pager number where he could b e reached. During this initial conversation, Dr. Gen tz informed Dr. Crass of the TPD’s policy of controlling third-party communicati ons during an armed standoff. Later in the day, after the standoff intensified, D r. Gentz specifically instructed Dr. Crass not to contact Christiansen, fearing thatthird-party contacts might frustrate the negotiation effort. 3 At approximately 11:48 A.M., TPD officers again est ablished telephone contact with Christiansen. Negotiator Cole Butler was the TPD’s “contact” person. Christiansen informed Negotiator Butler th at he was armed with an AK4 At one point, Christiansen appeared to express fru stration with Dr. Crass:

Q [Butler]: When you come out would you like to ta lk to Dr. [Crass] today? A [Christiansen]: That’s not a part of his deal. Q: It’s not part of his deal? A: It’s my life. Q: Huh? A: It’s my life. I should have chosen to quit takin g the medication, right? Right.

- 6 - 47 with armor-piercing ammunition, a .38 caliber pi stol, and an army knife. He told Negotiator Butler that he wanted to kill himse lf and that he was “not coming out of [t]here alive.” He threatened to shoot anyo ne who tried to enter the apartment and repeatedly threatened to kill himself if anyone attempted to enter the apartment. On at least two separate occasions during the stand off, Negotiator Butler asked Christiansen if he wanted to speak with Dr. C rass. Christiansen did not respond to either inquiry. 4 Butler also repeatedly offered Christiansen acces s to medical care, which he refused. Throughout the neg otiation, Butler assured Christiansen that no one wanted to hurt him and adv ised him numerous times that5 Negotiator Butler told Christiansen that he would be taken to Parkside

Hospital in Tulsa.

6 When Christiansen asked, “You guys are going to th row me in jail, right?”, Butler responded, “No, you haven’t committ ed a crime today.” - 7 - if he came out peaceably, TPD officers would take him for medical treatment. 5 Further, Butler assured Christiansen that he would not be put in jail. 6 Throughout the day, Christiansen continually asked Negotiator Butler to provide him with cigarettes. In making these reque sts, Christiansen would sometimes refer to his “last cigarette,” stating atone point, “I just want[] to smoke my last cigarette.” Butler made numerous att empts to persuade Christiansen to trade his weapons for cigarettes, b ut Christiansen would not agree. In the end, Butler refused to furnish Christiansen with cigarettes, fearing that if he did so, Christiansen would then kill himself. B utler did, however, tell Christiansen several times that he had a new pack o f cigarettes and would give them to Christiansen if he would simply come out of the apartment. At around 12:00 P.M., Sean Christiansen spoke to hi s mother, Theresa Christiansen, on the telephone. Theresa Christians en arrived at the apartment shortly after the conversation and asked to see herson. The TPD officers denied her request. Christiansen had told Negotiator Butl er that, “She brought me into this world, she should at least know why I’m leavin g it, okay?” Negotiator Butler was concerned that allowing Christiansen to see his mother would give him an7At one point, Butler told Christiansen: “Sean, do you know why I want to

wait until you come out to talk to her? Do you kno w why? Because I’m afraid if you talk to her now and say your goodbye that you’l l kill yourself and I don’t want you to kill yourself.” - 8 - opportunity to say “goodbye,” after which he might follow through on his suicide threats. 7He repeatedly told Christiansen that he could see his mother if he came out of the apartment. At one point during the standoff, Christiansen atte mpted to telephone Dr. Crass, but dialed the wrong number. Apparently notrealizing his mistake, Christiansen left a message on the answering machin e, in which he stated that he had a gun and wanted to kill himself. The person w ho received the message reported it to Dr. Crass’ office. However, no one from Dr. Crass’ office responded to the call. Someone from Dr. Crass’ off ice did contact Christiansen at approximately 3:30 P.M. to confirm a future appoint ment. Christiansen told the caller that he was going to kill himself. When the caller offered Christiansen help, he declined. Throughout the standoff, Christiansen was on the Internet viewing websites relating to negotiating with suicidal individuals. Christiansen told Negotiator Butler on several occasions that Butler was not con ducting himself properly. Christiansen also continued drinking throughout the afternoon. His speech became slurred; he was very emotional, and at times he cried.8 Negotiator Butler was having trouble understanding Christiansen due to

both his slurred speech and the fact that Christian sen was standing too far from the telephone speaker.

9 Christiansen had made similar comments throughout the day. For example, at one point, Christiansen told Butler, “I ’m not leaving this place until I’m . . . taken out on a gurney dead.” Later in th e day, he told Butler, “You’ll hear a big blast here in about two minutes.” - 9 - At approximately 5:00 P.M., TPD officers instructedSouthwestern Bell to disconnect Christiansen’s existing telephone numberand assign a new telephone number. The TPD did this to prevent third parties from calling and interrupting negotiations and to keep Christiansen from going onthe Internet to obtain information on suicide negotiations. Late in the afternoon, Christiansen’s speech became so slurred that Negotiator Butler had trouble understanding him. 8 The TPD officers also became concerned that Christiansen might pass out. Christ iansen told Negotiator Butler, “I want to be dead. . . . I want to shoot myself, I’m serious. . . . It’s a leave me alone situation. All I want to do is kill myself. Leave me alone.” 9 A few moments later, Christiansen became angry with Butle r and hung up the phone. The TPD officers reestablished phone contact with C hristiansen, but he again hung up the phone. The TPD officers concluded that Christiansen was no longer negotiating in good faith and decided that something had to be don e to move the process along. At approximately 5:15 P.M., the TPD launched a “fle xible baton,” apparently10 Specifically, the following conversation occurred:

Q [Negotiator Butler]: Sean? A [Christiansen]: What? Q: What was that? A: You tell me. Q: Well, I think a tactical probably broke one of yo ur windows. A: Why? Q: Because they want you to talk to me in good faith

. A: Huh? Q: Because they want you to negotiate with me in goo d faith.

- 10 - made of rubber, to breach a rear window in an unocc upied room on the east side of Christiansen’s apartment. According to the TPD, they did so “in an attempt [to] encourage [Christiansen] to resolve the incide nt peacefully.” Christiansen was on the phone with Negotiator Butler at the time the TPD launched the baton. Christiansen asked why the TPD had fired the baton, and Butler responded, “[we] want you to negotiate with [us] in good faith.” 10 A few seconds later, Butler heard a single gunshot. Upon entering the apartmen t, the TPD officers found Christiansen lying on his back with a .38 caliber p istol at his hip and an apparently self-inflicted gunshot wound in his lefttemple. TPD officers also- 11 -

found a suicide note. Christiansen was immediatelytaken to a hospital by medical personnel. He died the following day. Plaintiffs brought suit under 42 U.S.C. § 1983 on b ehalf of Christiansen and themselves, alleging violations of the Fifth an d Fourteenth Amendments. The individual defendants moved for summary judgment, a rguing that they were entitled to qualified immunity and that the evidenc e failed to establish that defendants violated plaintiffs’ constitutional righ ts. The City of Tulsa also moved for summary judgment, arguing that plaintiffs’ cons titutional rights had not been violated. In an order dated July 22, 2002, the district courtgranted defendants’ respective motions for summary judgment, concluding that plaintiffs’ allegations failed to establish a constitutional violation unde r the Fifth and Fourteenth Amendments. This appeal followed. II. Discussion A. Whether the District Court Correctly Concluded that Defendants’ Conduct Did Not Violate the Fifth and Fourteenth Am endments.
1. Standard of review As to the individual defendants, we review de novo the district court’s grant of summary judgment based on qualified immunity. Warner v. Grand County , 57 F.3d 962, 963 (10th Cir. 1995). In conducting our analysis, “[we] first11 Cf. Roska ex rel. Roska v. Peterson , __ F.3d __, 2003 WL 1963209,

(10th Cir. Apr. 29, 2003) (“Order is important; we must decide first whether the plaintiff has alleged a constitutional violation, a nd only then do we proceed to determine whether the law was clearly established.” ) (citing Saucier v. Katz , 533 U.S. 194, 200 (2001)). - 12 - . . . determine whether the plaintiff has asserted a violation of a constitutional or statutory right, and then we decide whether that ri ght was clearly established such that a reasonable person in the defendant’s positio n would have known that [his] conduct violated that right.” Garramone v. Romo , 94 F.3d 1446, 1449 (10th Cir. 1996) (citation omitted). Of course, we need not r each the question of whether the individual defendants are entitled to qualified immunity if we determine, after a de novo review, that plaintiffs failed to suffici ently allege the violation of a constitutional right. 11 Lighton v. University of Utah , 209 F.3d 1213, 1221 (10th Cir. 2000); cf. Crown Point I, LLC v. Intermountain Rural Elec. Ass’n , 319 F.3d 1211, 1216 (10th Cir. 2003) (“In order to prevail o n its 42 U.S.C. § 1983 claim, plaintiff must demonstrate that it suffered a depri vation of a federally protected right.”). As to the City, while the district court did not g rant summary judgment to the City on the basis of qualified immunity, we als o review de novo the district court’s conclusion that no constitutional violation occurred. Lighton , 209 F.3d at
1221. In this case, the district court concluded that def endants’ conduct did not12 Although the district court concluded that Dr. Gen tz was entitled to raise

the qualified-immunity defense, we find it unnecess ary to reach this question. Rather, we affirm based on plaintiffs’ failure to a llege facts sufficient to give rise to a constitutional violation under the Fifth and F ourteenth Amendments. See Crown Point I, LLC v. Intermountain Rural Elec. Ass ’n , 319 F.3d 1211, 1216 (10th Cir. 2003) (“In order to prevail on its 42 U. S.C. § 1983 claim, plaintiff must demonstrate that it suffered a deprivation of a fed erally protected right.”). In addition, we do not review the district court’s con clusion that Dr. Gentz was acting “under the color of state law,” since Dr. Ge ntz does not challenge that conclusion on appeal.

13 Plaintiffs have not advanced any claims of excessi ve force under the Fourth Amendment. - 13 - rise to the level of a substantive due process viol ation under the Fifth and Fourteenth Amendments. 12 For the reasons set forth below, we agree.

2. Whether defendants violated the Fifth and Fourteenth Amendments through the use of excessive force. Under the Due Process Clause, 13 we focus on three factors in considering claims of excessive force: “‘(1) the relationship between the amount of force used and the need presented; (2) the extent of the injury inflicted; and (3) the motives of the . . . officer.’” Bella v. Chamberlain , 24 F.3d 1251, 1257 (10th Cir. 1994) (quoting Hannula v. City of Lakewood , 907 F.2d 129, 131-32 (10th Cir. 1990)). “Force inspired by malice or by ‘unwise, e xcessive zeal amounting to an abuse of official power that shocks the conscience . . . may be redressed under [the Fifth Amendment].’” Id. (quoting Hewitt v. City of Truth or Consequences , 758 F.2d 1375, 1379 (10th Cir. 1985)).14 To the extent plaintiffs argue that the TPD’s acti ons precipitated

Christiansen’s infliction of the gunshot wound, pla intiffs must proceed under the “special relationship” doctrine or the “state creat ed danger” doctrine, cf. Armijo v. Wagon Mound Public Schools , 159 F.3d 1253 (10th Cir. 1998), which we consider in section II.A.2.a, infra

. - 14 - In this case, plaintiffs allege that defendants’ co nduct, specifically the act of firing the flexible baton into Christiansen’s ap artment, constituted excessive force. We disagree for several reasons. First, the TPD launched the flexible baton, which w as made of rubber, into the rear window of an unoccupied room in Christians en’s apartment. Christiansen suffered no physical injuries as a direct result of the defendants’ actions, and, as we noted in Bella , “we have never upheld an excessive force claim wi thout some evidence of physical injury.” 14 24 F.3d at 1257-58 (comparing cases). Second, Christiansen’s complaint makes no allegations of improper motives or malice. Cf. id. at 1258. Throughout the standoff, the TPD officer s demonstrated concern for Christiansen’s physical well-being; and, although the TPD officers became frustrated with Christiansen’s refusal to negotiate , at no point did the TPD officers act for any purpose other than to protect Christiansen’s physical safety. Finally, the amount of force used in this case was not “grossly disproportionate” to the need presented. See Wise v. Bravo , 666 F.2d 1328, 1333 (10th Cir. 1981). The TPD officers did not employ “deadly” force; in fact, because Christiansen was not in the room, there was virtually no likelih ood of physical harm directly- 15 -

resulting from the firing of the baton. Further, t he TPD officers fired the baton in order to prompt Christiansen to continue negotiatio ns. At most, the TPD officer’s actions constituted a trespass and “a trespass to p roperty, negligent or intentional, is a common law tort; it does not infringe the federal constitution.” Id . at 1335. Accordingly, we hold that defendants did not employexcessive force against Christiansen in violation of the Fifth and Fourteenth Amendments.

a. Whether defendants violated the Fifth and Fourteenth Amendments under the “special relationship” doctrin e or the “state-created danger” doctrine. Normally, “state actors are liable only for their o wn acts, and not the violent acts of third parties.” Armijo v. Wagon Mound Public Schools , 159 F.3d 1253, 1260 (10th Cir. 1998). Thus, “[a]s a general matter, . . . a State’s failure to protect an individual against private violence simp ly does not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago County Dep’t of
Soc. Servs. , 489 U.S. 189, 197 (1989). Although “[the Due Pro cess Clause] forbids the State itself to deprive individuals of life, liberty, or property without ‘due process of law,’ . . . its language cannot fai rly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.” Id. at 195. As we noted in Armijo , however, there are two exceptions to this general- 16 -

rule: The first exception, known as the special relations hip doctrine, “exists when the state assumes control over an indi vidual sufficient to trigger an affirmative duty to provide protectio n to that individual. . . .” The second exception, sometimes referred to as the “danger creation” theory, provides that a state may also be liable for an individual’s safety “if it created the danger that harmed the individual.” 159 F.3d at 1260 (quoting Liebson v. New Mexico Corrections Dep’t , 73 F.3d 274, 276 (10th Cir.1996)). Plaintiffs here, in arguing that defendants violate d Christiansen’s Fifth and Fourteenth Amendment rights, contend that both exce ptions apply. We consider each in turn. (1) Special relationship “[I]f the state restrains an individual’s freedom t o act to protect himself or herself through a restraint on that individual’s pe rsonal liberty, the state may thereby enter into a ‘special relationship’ during such restraint to protect that individual from violent acts inflicted by others.” Armijo , 159 F.3d at 1261. Absent involuntary restraint, however, no duty to p rotect arises under the specialrelationship theory. Id. “‘The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament . . . but from the limitation which it has imposed on his freedom to act on his own behalf.’” Id. (quoting DeShaney , 489 U.S. at 200).15 We acknowledge that Christiansen was without a pho ne line for a brief

interval, apparently less than fifteen minutes, whi le Southwestern Bell disconnected the old line and installed a new line. The TPD requested that Southwestern Bell disconnect Christiansen’s old lin e in order to avoid third-party contacts that might frustrate the negotiation effort. Plaintiffs’ contention notwithstanding, the TPD officers’ actions in chang ing Christiansen’s phone number did not limit Christiansen’s freedom to act on his own behalf, as he could still make outgoing calls from the phone line once the installation was completed. In other words, although the number change perhaps restrained third-party action, it did not limit Christiansen’s freedom to act on h is own behalf. The “special relationship” theory is therefore inapposite. To t he extent this distinction foreshadows plaintiffs’ argument under the “state c reated danger” doctrine, we consider it in more detail in section II.A.2.a(2), infra

. - 17 - In this case, plaintiffs argue that the TPD’s quara ntine “limited Christiansen’s freedom to act, particularly his fre edom to renew his request for medical assistance.” We disagree. First, we note that Christiansen had access to a te lephone line for essentially the entire duration of the standoff. 15 At no point did Christiansen reach out for medical assistance; in fact, he did n ot respond to the TPD’s offers to contact Dr. Crass, and he specifically turned down their repeated offers of medical treatment. Second, rather than restraining Christiansen, the T PD officers affirmatively encouraged Christiansen to leave his apartment thro ughout the standoff. Although the TPD officers would not provide Christi ansen with cigarettes or allow him to speak to his mother while in the apart ment, Negotiator Butler specifically told Christiansen that he could have c igarettes and speak to his16 We also note that the TPD’s justifications for the se actions were

manifestly reasonable. Christiansen informed Negot iator Butler that he desired one last cigarette before he died and that he wishe d to see his mother so that he could explain his reasons for taking his own life. Thus, Negotiator Butler reasonably concluded that prohibiting Christiansen from having a cigarette or speaking to his mother would likely delay or preven t a suicide attempt. - 18 - mother if he complied with their request to peaceably leave the building. 16 Further, Butler assured Christiansen that no one wanted to hurt him and advised him numerous times that if he came out peaceably, t he TPD officers would provide him with medical treatment. Based on the above, we conclude that the TPD’s quar antine neither involuntarily restrained Christiansen nor limited h is freedom to act on his own behalf. Thus, no special relationship or attendantaffirmative duty to protect Christiansen arose under Armijo and Uhlrig

. (2) Danger creation “[W]e have held that state officials can be liable for the acts of third parties where those officials ‘created the danger’ that caused the harm.” Seamons v.
Snow , 84 F.3d 1226, 1236 (10th Cir. 1996). In consider ing danger-creation claims, we have articulated the following six-part test: To make out a proper danger creation claim, a plain tiff must demonstrate that (1) the charged state entity and t he charged individual actors created the danger or increased p laintiff’s vulnerability to the danger in some way; (2) plaint iff was a member of a limited and specifically definable group; (3) defendants’ conduct put plaintiff at substantial risk of serious, immed iate, and proximate- 19 -

harm; (4) the risk was obvious or known; (5) defend ants acted recklessly in conscious disregard of that risk; and(6) such conduct, when viewed in total, is conscience shocking. Gonzales v. City of Castle Rock , 307 F.3d 1258, 1263 (10th Cir. 2002). In considering the required scienter, we have focus ed on the deliberateness of the conduct at issue. The Due Process Clause pr otects against “deliberately wrongful government decisions rather than merely ne gligent government conduct.” Uhlrig , 64 F.3d at 573. Thus, section 1983 liability wil l not lie absent (1) “an intent to harm” or (2) “an intent to place a person unreasonably at risk of harm.” Id. (footnote omitted). We have previously noted thatthe latter requires that “the defendant recognize[] the unreasonable risk and actually intend [] to expose the plaintiff to such risks without regard t o the consequences to the plaintiff.” Id. at 573 n.8 (emphasis added). In this case, the “danger” in question – Christians en’s exposure to a suicide attempt – existed prior to defendants’ intervention . Thus, defendants cannot be liable under section 1983 for having “created” Chri stiansen’s predicament. Plaintiffs argue, however, that the TPD’s actions –specifically the quarantine, which restrained third-party contacts with Christiansen, and the firing of the flexible baton – “increased [Christiansen’s] vulner ability to the danger in some way,” Armijo , 159 F.3d at 1263, sufficient to support liability under section 1983 and the Due Process Clause. For several reasons, w e disagree.- 20 -

First, regarding both the quarantine and the use of the flexible baton, plaintiffs do not argue that defendants “inten[ded] to place [Christiansen] unreasonably at risk of harm.” See Uhlrig , 64 F.3d at 573 (footnote omitted). To the contrary, as defendants’ actions throughout the day demonstrated, they intended to remove Christiansen from the dangerous situation that he himself had created. Even if the defendants acted negligently in employing the flexible baton, the Due Process Clause protects against “ deliberately wrongful government decisions rather than merely negligent government conduct.” Id. (emphasis added). Second, far from shocking the conscience, the defen dants’ actions in not allowing Christiansen’s mother or wife to enter the apartment were appropriate. Cf. Andrews v. Wilkins , 934 F.2d 1267, 1271 (D.C. Cir. 1991) (concluding that “police were entitled, if not obliged, to prevent [ a third party] from endangering her life [by attempting to aid] in the course of a police rescue effort”). Rather than “cutting off potential sources of private aid,” Armijo , 159 F.3d at 1263, defendants sought to protect Christiansen’s mother and wife while avoiding the possibility of precipitating a violent reaction fro m Christiansen. Christiansen was heavily armed and had specifically threatened his w ife earlier in the day. Further, Christiansen had threatened to shoot anyone who tried to enter the apartment and had repeatedly threatened to kill himself if anyone attempted to enter the17Significantly, Christiansen’s phone number was notchanged until late in

the standoff, at approximately 5:00 P.M. Further, we note that, before the district court, plaintiffs’ counsel apparently conceded thatChristiansen was not denied access to Dr. Crass.

18 Although Dr. Gentz instructed Dr. Crass not to contact Christiansen, he did so in order to avoid frustrating the negotiatio n efforts. In addition, Dr. Crass later stated that he “knew . . . [Christiansen] had access to a telephone,” and that “Gentz’ statement that [Christiansen] had no teleph one was probably intended to prevent me from trying to contact [Christiansen].” Further, Dr. Crass was aware that his office had contacted Christiansen at 3:30 P.M., which suggests that Christiansen had access to a phone, specifically, t he phone number that Dr. Crass’ office had on record. Finally, in his notes taken shortly after the incident, Dr. Crass wrote: “Sean did have access to a telephone. I do not know if he had another phone, if he could dial out via the base un it, or if Dr. [Gentz] was simply lying to me to keep me from calling him.” - 21 - apartment. Finally, Christiansen had told Negotiat or Butler that he wished to see his mother so that he might explain his reasons forcommitting suicide. Thus, by not allowing Christiansen this opportunity, defendants likely forestalled Christiansen’s suicide attempt rather than hastenin g it. Finally, although defendants’ actions in setting up the quarantine, including their instruction to Dr. Crass not to contact Chris tiansen and their eventual disconnection of Christiansen’s phone line, 17 may have potentially preempted an attempt by Dr. Crass to provide assistance to Chris tiansen, nothing in the record indicates that Dr. Crass actually insisted on speaking to Christiansen. 18 Although Dr. Crass offered to assist the TPD and requested t o speak with Christiansen, he never stated that – based upon his relationship wit h Christiansen – he considered his personal intervention necessary to protect Chri stiansen. Further, twice during- 22 -

the standoff, Negotiator Butler asked Christiansen whether he wanted to speak with Dr. Crass, and Christiansen did not respond. In addition, Christiansen did have telephone contact with Dr. Crass’ office; and, during that conversation, Christiansen specifically declined the caller’s off er of help. Finally, insofar as third-party contacts could have frustrated the TPD’ s negotiation effort, defendants had some justification for their actions. As we noted in Uhlrig , “[t]he Due Process Clause ‘is not a guarantee against incorrect or ill-advised [government] decis ions,’” 64 F.3d at 573 (quoting Collins v. City of Harker Heights , 503 U.S. 115, 129 (1992)), and defendants’ conduct did not “demonstrate a degree of outrageous ness . . . that is truly conscience shocking,” id. at 574. Accordingly, we conclude that the districtcourt properly held that plaintiffs’ allegations were ins ufficient to support a finding of a violation of Christiansen’s Fifth and Fourteenth Am endment rights.

b. Whether defendants violated the Fifth and Fourteenth Amendment rights of Christiansen’s survivors, There sa Christiansen and Meagan Thompson. Plaintiffs’ complaint also alleged that defendants’ conduct violated their individual rights under the Fifth and Fourteenth Am endments. The district court concluded that plaintiffs failed to state a claim. We agree. Under Trujillo v. Bd. of County Comm’rs , an “allegation of intent to19 To the extent the remainder of Dr. Crass’ affidavi t contained admissible

statements, it would not change the result in this case. - 23 - interfere with a particular relationship protected by the freedom of intimate association is required to state a claim under sect ion 1983.” 768 F.2d 1186, 1190 (10th Cir. 1985). Plaintiffs made no such allegati on. Further, any claim of excessive use of force is wholly without merit. De fendants’ actions in restraining Theresa Christiansen and Meagan Thompson from enter ing the apartment after hearing the gunshot were manifestly reasonable. Cf. Andrews , 934 F.2d at 1271 (concluding that “police were entitled, if not obli ged, to prevent [a third party] from endangering her life [by attempting to aid] in the course of a police rescue effort”). Thus, plaintiffs’ allegations fail to es tablish a constitutional violation of their own rights under the Fifth and Fourteenth Ame ndments. B. Whether the District Court Erred in Excluding Dr. Crass’ Affidavit. We review a district court’s ruling on the admissib ility of evidence for an abuse of discretion. Smith v. Ingersoll-Rand Co. , 214 F.3d 1235, 1246 (10th Cir. 2000). “We must afford great deference to the dist rict court; review of a cold record is a poor substitute for a trial judge’s int imate familiarity with the evidence and its role in the context of the trial as a whole.” Id. In his affidavit, Dr. Crass stated, inter alia , 19 the following: [1] By Gentz dissuading me from making contact with [Christiansen], it became more likely that [Christiansen] would notobtain medical20 According to Dr. Gentz’ notes, taken contemporaneo usly with his initial

conversation with Dr. Crass, Dr. Crass was not awar e of any previous suicide threats by Christiansen. - 24 - advice and treatment during the standoff. [2] Gentz’s interferences of [sic] my contact with [Christiansen] increased the likelihood that [Christiansen] would attempt to harm or kill himself. [3] In my professional opinion, cutting off [Christ iansen] from his doctor and his mother was reckless. [4] It is my professional opinion that Sean Christi ansen could probably have been helped by me or by Sean’s motherbecause his suicidal ideation was an issue which I had handled and addressed with [him] and which his mother had handled and add ressed with him. 20 “Generally, an expert may not state his or her opin ion as to legal standards nor may he or she state legal conclusions drawn by applying the law to the facts.” Okland Oil Co. v. Conoco Inc. , 144 F.3d 1308, 1328 (10th Cir. 1998). Whether defendants in this case acted “recklessly” is a leg al conclusion, and thus, the district court properly excluded that portion of Dr . Crass’ affidavit. Further, “[i]t is axiomatic that an expert, no matter how good his credentials, is not permitted to speculate.” Goebel v. Denver & Rio Grande Western R.R. Co. , 215 F.3d 1083, 1088 (10th Cir. 2000). Dr. Crass’ statements regar ding what might have happened had he been allowed to intervene are pure speculation. Further, as we noted earlier, during the standoff, the TPD asked C hristiansen whether he wanted- 25 -

to see Dr. Crass, and Christiansen never responded to these inquiries. Finally, insofar as Dr. Crass did not convey this informatio n to defendants at the time of the events in question, it has little, if any, prob ative value. Accordingly, the district court did not abuse its discretion in excl uding Dr. Crass’ affidavit. III. Conclusion Based on the foregoing, we AFFIRM the district court’s grant of defendants’ respective motions for summary judgment

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