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.

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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, Sapulpa, Oklahoma, James O.

Goodwin, Tulsa, Oklahoma, and Allen Mitchell, Sapulpa, Oklahoma, with him on

the briefs), appearing for Appellants.

Marthanda J. Beckworth, Atkinson, Haskins, Nellis, Holeman, Phipps,

Brittingham & Gladd, Tulsa, Oklahoma, appearing for Appellees 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 Tulsa 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 individually, we treat them collectively

for purposes of this appeal. Plaintiffs’ complaint also listed several “John Doe”

defendants; the only parties before this court, however, are those set forth above.

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Plaintiffs Theresa Christiansen, individually and as 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 Police, (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 motions for summary judgment,

concluding that plaintiffs’ allegations failed to establish a constitutional violation. 

For the reasons set forth below, we AFFIRM.

I. Background

On the morning of August 24, 1999, at approximately 8:58 A.M., Meagan

Thompson telephoned 911 and reported that her husband, Sean Christiansen, was

armed with a loaded .38 caliber pistol and AK 47 and had threatened to kill her

and commit suicide. After contacting the police, Thompson left the apartment

with their infant child, Avery Thompson.

Christiansen, who was twenty-three years old, had a history of psychiatric

problems. Dr. David Crass, M.D., a Tulsa psychiatrist, was treating Christiansen
1

 According to Dr. Gentz, he “routinely respond[ed] when the [SOT] [was]

activated.”

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for Attention Deficit Hyperactivity and Oppositional Defiant Disorder. During

the days leading up to the incident, Christiansen had experienced problems with a

new medication prescribed by Dr. Crass. On the day in 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 “armor 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.” Sergeant Cory instructed the officers to

set up a perimeter around the apartment building and 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 licensed psychologist, to

assist the SOT in their negotiations with Christiansen. Dr. Gentz was under

contract with the City of Tulsa to provide certain psychological services and

counseling to Tulsa’s police and fire departments and “operational assistance and

support such as consulting for the [TPD’s SOT].” 1
2

 Dr. Crass’ notes taken shortly after the incident indicate that he offered,

but did not request, to speak with Christiansen. In his May 21, 2002, affidavit,

Dr. Crass contends: “I asked Gentz on several occasions if I could speak with

Sean. Gentz said each time that it was not possible, and led me to believe Sean

could not be contacted by telephone . . ., [explaining that] it was the customary

practice of the TPD during armed standoffs to control contact between the armed

subject and others.” We assume for purposes of this 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 intervene, but that I would be glad to

help in any way.”

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While at the scene, Dr. Gentz assisted the TPD officers by generating a

psychological profile of Christiansen. In order to obtain information relating to

Christiansen’s psychological history and his condition, 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 be

reached. During this initial conversation, Dr. Gentz informed Dr. Crass of the

TPD’s policy of controlling third-party communications during an armed standoff. 

Later in the day, after the standoff intensified, Dr. Gentz specifically instructed

Dr. Crass not to contact Christiansen, fearing that third-party contacts might

frustrate the negotiation effort. 3 

At approximately 11:48 A.M., TPD officers again established telephone

contact with Christiansen. Negotiator Cole Butler was the TPD’s “contact”

person. Christiansen informed Negotiator Butler that he was armed with an AK
4

 At one point, Christiansen appeared to express frustration with Dr. Crass:

Q [Butler]: When you come out would you like to talk 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 taking the

medication, right? Right.

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47 with armor-piercing ammunition, a .38 caliber pistol, and an army knife. He

told Negotiator Butler that he wanted to kill himself and that he was “not coming

out of [t]here alive.” He threatened to shoot anyone 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 standoff, Negotiator Butler

asked Christiansen if he wanted to speak with Dr. Crass. Christiansen did not

respond to either inquiry. 4 Butler also repeatedly offered Christiansen access to

medical care, which he refused. Throughout the negotiation, Butler assured

Christiansen that no one wanted to hurt him and advised him numerous times that
5

 Negotiator Butler told Christiansen that he would be taken to Parkside

Hospital in Tulsa. 

6

 When Christiansen asked, “You guys are going to throw me in jail,

right?”, Butler responded, “No, you haven’t committed a crime today.” 

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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 requests, Christiansen would

sometimes refer to his “last cigarette,” stating at one point, “I just want[] to

smoke my last cigarette.” Butler made numerous attempts to persuade

Christiansen to trade his weapons for cigarettes, but 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. Butler did, however, tell

Christiansen several times that he had a new pack of 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 his mother, Theresa

Christiansen, on the telephone. Theresa Christiansen arrived at the apartment

shortly after the conversation and asked to see her son. The TPD officers denied

her request. Christiansen had told Negotiator Butler that, “She brought me into

this world, she should at least know why I’m leaving it, okay?” Negotiator Butler

was concerned that allowing Christiansen to see his mother would give him an
7

 At one point, Butler told Christiansen: “Sean, do you know why I want to

wait until you come out to talk to her? Do you know why? Because I’m afraid if

you talk to her now and say your goodbye that you’ll kill yourself and I don’t

want you to kill yourself.” 

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opportunity to say “goodbye,” after which he might follow through on his suicide

threats. 7

 He repeatedly told Christiansen that he could see his mother if he came

out of the apartment. 

At one point during the standoff, Christiansen attempted to telephone Dr.

Crass, but dialed the wrong number. Apparently not realizing his mistake,

Christiansen left a message on the answering machine, in which he stated that he

had a gun and wanted to kill himself. The person who received the message

reported it to Dr. Crass’ office. However, no one from Dr. Crass’ office

responded to the call. Someone from Dr. Crass’ office did contact Christiansen at

approximately 3:30 P.M. to confirm a future appointment. 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 conducting 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 Christiansen 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 the day, he told Butler, “You’ll

hear a big blast here in about two minutes.” 

- 9 -

At approximately 5:00 P.M., TPD officers instructed Southwestern Bell to

disconnect Christiansen’s existing telephone number and assign a new telephone

number. The TPD did this to prevent third parties from calling and interrupting

negotiations and to keep Christiansen from going on the 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. Christiansen 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 Butler and hung up the phone. 

The TPD officers reestablished phone contact with Christiansen, 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 done to move the process along.

At approximately 5:15 P.M., the TPD launched a “flexible baton,” apparently
10 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 your 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 good faith.

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made of rubber, to breach a rear window in an unoccupied 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 incident 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 apartment, the TPD officers found

Christiansen lying on his back with a .38 caliber pistol at his hip and an

apparently self-inflicted gunshot wound in his left temple. TPD officers also
- 11 -

found a suicide note. Christiansen was immediately taken to a hospital by

medical personnel. He died the following day.

Plaintiffs brought suit under 42 U.S.C. § 1983 on behalf of Christiansen

and themselves, alleging violations of the Fifth and Fourteenth Amendments. The

individual defendants moved for summary judgment, arguing that they were

entitled to qualified immunity and that the evidence failed to establish that

defendants violated plaintiffs’ constitutional rights. The City of Tulsa also moved

for summary judgment, arguing that plaintiffs’ constitutional rights had not been

violated.

In an order dated July 22, 2002, the district court granted defendants’

respective motions for summary judgment, concluding that plaintiffs’ allegations

failed to establish a constitutional violation under 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 Amendments.

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] first
11 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, and only then do we proceed to

determine whether the law was clearly established.”) (citing Saucier v. Katz, 533

U.S. 194, 200 (2001)).

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. . . determine whether the plaintiff has asserted a violation of a constitutional or

statutory right, and then we decide whether that right was clearly established such

that a reasonable person in the defendant’s position 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 reach the question of whether

the individual defendants are entitled to qualified immunity if we determine, after

a de novo review, that plaintiffs failed to sufficiently 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 on its 42 U.S.C. § 1983 claim,

plaintiff must demonstrate that it suffered a deprivation of a federally protected

right.”).

 As to the City, while the district court did not grant summary judgment to

the City on the basis of qualified immunity, we also 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 defendants’ conduct did not
12 Although the district court concluded that Dr. Gentz was entitled to raise

the qualified-immunity defense, we find it unnecessary to reach this question. 

Rather, we affirm based on plaintiffs’ failure to allege facts sufficient to give rise

to a constitutional violation under the Fifth and Fourteenth 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 federally protected right.”). In

addition, we do not review the district court’s conclusion that Dr. Gentz was

acting “under the color of state law,” since Dr. Gentz does not challenge that

conclusion on appeal.

13 Plaintiffs have not advanced any claims of excessive force under the

Fourth Amendment.

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rise to the level of a substantive due process violation 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, excessive 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 actions precipitated

Christiansen’s infliction of the gunshot wound, plaintiffs must proceed under the

“special relationship” doctrine or the “state created 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.

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In this case, plaintiffs allege that defendants’ conduct, specifically the act

of firing the flexible baton into Christiansen’s apartment, constituted excessive

force. We disagree for several reasons. 

First, the TPD launched the flexible baton, which was made of rubber, into

the rear window of an unoccupied room in Christiansen’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 without 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 officers 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 likelihood of physical harm directly
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resulting from the firing of the baton. Further, the TPD officers fired the baton in

order to prompt Christiansen to continue negotiations. At most, the TPD officer’s

actions constituted a trespass and “a trespass to property, 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 employ excessive force

against Christiansen in violation of the Fifth and Fourteenth Amendments.

a. Whether defendants violated the Fifth and Fourteenth

Amendments under the “special relationship” doctrine

or the “state-created danger” doctrine.

Normally, “state actors are liable only for their own 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 simply 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 Process Clause]

forbids the State itself to deprive individuals of life, liberty, or property without

‘due process of law,’ . . . its language cannot fairly 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
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rule:

The first exception, known as the special relationship doctrine,

“exists when the state assumes control over an individual sufficient

to trigger an affirmative duty to provide protection 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 violated Christiansen’s Fifth and

Fourteenth Amendment rights, contend that both exceptions apply. We consider

each in turn.

(1) Special relationship

“[I]f the state restrains an individual’s freedom to act to protect himself or

herself through a restraint on that individual’s personal 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 protect 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 phone line for a brief

interval, apparently less than fifteen minutes, while Southwestern Bell

disconnected the old line and installed a new line. The TPD requested that

Southwestern Bell disconnect Christiansen’s old line in order to avoid third-party

contacts that might frustrate the negotiation effort. Plaintiffs’ contention

notwithstanding, the TPD officers’ actions in changing 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 his own behalf. The “special

relationship” theory is therefore inapposite. To the extent this distinction

foreshadows plaintiffs’ argument under the “state created danger” doctrine, we

consider it in more detail in section II.A.2.a(2), infra.

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In this case, plaintiffs argue that the TPD’s quarantine “limited

Christiansen’s freedom to act, particularly his freedom to renew his request for

medical assistance.” We disagree. 

First, we note that Christiansen had access to a telephone line for

essentially the entire duration of the standoff. 15 At no point did Christiansen

reach out for medical assistance; in fact, he did not 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 TPD officers affirmatively

encouraged Christiansen to leave his apartment throughout the standoff. 

Although the TPD officers would not provide Christiansen with cigarettes or

allow him to speak to his mother while in the apartment, Negotiator Butler

specifically told Christiansen that he could have cigarettes and speak to his
16 We also note that the TPD’s justifications for these actions were

manifestly reasonable. Christiansen informed Negotiator Butler that he desired

one last cigarette before he died and that he wished 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 prevent a suicide attempt.

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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, the TPD officers would

provide him with medical treatment. 

Based on the above, we conclude that the TPD’s quarantine neither

involuntarily restrained Christiansen nor limited his freedom to act on his own

behalf. Thus, no special relationship or attendant affirmative 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 considering danger-creation

claims, we have articulated the following six-part test:

To make out a proper danger creation claim, a plaintiff must

demonstrate that (1) the charged state entity and the charged

individual actors created the danger or increased plaintiff’s

vulnerability to the danger in some way; (2) plaintiff was a member

of a limited and specifically definable group; (3) defendants’ conduct

put plaintiff at substantial risk of serious, immediate, and proximate
- 19 -

harm; (4) the risk was obvious or known; (5) defendants 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 focused on the deliberateness

of the conduct at issue. The Due Process Clause protects against “deliberately

wrongful government decisions rather than merely negligent government

conduct.” Uhlrig , 64 F.3d at 573. Thus, section 1983 liability will 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 that the latter requires

that “the defendant recognize[] the unreasonable risk and actually intend [] to

expose the plaintiff to such risks without regard to the consequences to the

plaintiff.” Id. at 573 n.8 (emphasis added).

In this case, the “danger” in question – Christiansen’s exposure to a suicide

attempt – existed prior to defendants’ intervention. Thus, defendants cannot be

liable under section 1983 for having “created” Christiansen’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] vulnerability 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, we 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 defendants’ 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 from Christiansen. Christiansen was

heavily armed and had specifically threatened his wife 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 the
17 Significantly, Christiansen’s phone number was not changed until late in

the standoff, at approximately 5:00 P.M. Further, we note that, before the district

court, plaintiffs’ counsel apparently conceded that Christiansen 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 negotiation efforts. In addition, Dr. Crass

later stated that he “knew . . . [Christiansen] had access to a telephone,” and that

“Gentz’ statement that [Christiansen] had no telephone 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, the 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 unit, or if Dr. [Gentz] was simply

lying to me to keep me from calling him.”

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apartment. Finally, Christiansen had told Negotiator Butler that he wished to see

his mother so that he might explain his reasons for committing suicide. Thus, by

not allowing Christiansen this opportunity, defendants likely forestalled

Christiansen’s suicide attempt rather than hastening it.

Finally, although defendants’ actions in setting up the quarantine, including

their instruction to Dr. Crass not to contact Christiansen and their eventual

disconnection of Christiansen’s phone line, 17 may have potentially preempted an

attempt by Dr. Crass to provide assistance to Christiansen, 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 to speak with Christiansen, he

never stated that – based upon his relationship with Christiansen – he considered

his personal intervention necessary to protect Christiansen. Further, twice during
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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 offer 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] decisions,’” 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 outrageousness . . . that is truly

conscience shocking,” id. at 574. Accordingly, we conclude that the district court

properly held that plaintiffs’ allegations were insufficient to support a finding of a

violation of Christiansen’s Fifth and Fourteenth Amendment rights.

b. Whether defendants violated the Fifth and Fourteenth

Amendment rights of Christiansen’s survivors, Theresa

Christiansen and Meagan Thompson.

Plaintiffs’ complaint also alleged that defendants’ conduct violated their

individual rights under the Fifth and Fourteenth Amendments. 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 to
19 To the extent the remainder of Dr. Crass’ affidavit contained admissible

statements, it would not change the result in this case.

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interfere with a particular relationship protected by the freedom of intimate

association is required to state a claim under section 1983.” 768 F.2d 1186, 1190

(10th Cir. 1985). Plaintiffs made no such allegation. Further, any claim of

excessive use of force is wholly without merit. Defendants’ actions in restraining

Theresa Christiansen and Meagan Thompson from entering the apartment after

hearing the gunshot were manifestly reasonable. Cf. Andrews , 934 F.2d at 1271

(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”). Thus, plaintiffs’ allegations fail to establish a constitutional violation of

their own rights under the Fifth and Fourteenth Amendments.

B. Whether the District Court Erred in Excluding Dr. Crass’ Affidavit.

We review a district court’s ruling on the admissibility 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 district court; review of a cold

record is a poor substitute for a trial judge’s intimate 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 not obtain medical
20 According to Dr. Gentz’ notes, taken contemporaneously with his initial

conversation with Dr. Crass, Dr. Crass was not aware of any previous suicide

threats by Christiansen.

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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 [Christiansen] from his

doctor and his mother was reckless.

[4] It is my professional opinion that Sean Christiansen could

probably have been helped by me or by Sean’s mother because his

suicidal ideation was an issue which I had handled and addressed

with [him] and which his mother had handled and addressed with

him. 20

“Generally, an expert may not state his or her opinion 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 legal 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 regarding what might have

happened had he been allowed to intervene are pure speculation. Further, as we

noted earlier, during the standoff, the TPD asked Christiansen whether he wanted
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to see Dr. Crass, and Christiansen never responded to these inquiries. Finally,

insofar as Dr. Crass did not convey this information to defendants at the time of

the events in question, it has little, if any, probative value. Accordingly, the

district court did not abuse its discretion in excluding Dr. Crass’ affidavit.

III. Conclusion

Based on the foregoing, we AFFIRM the district court’s grant of

defendants’ respective motions for summary judgment.