United States Court of Appeals

For the First Circuit

No. 04-1773

ANTONIO VÉLEZ-DÍAZ; SANTA GARCÍA-HERNÁNDEZ;

CONJUGAL PARTNERSHIP VÉLEZ-GARCÍA; YAHAIRA FAJARDO-CORREA;

ANTONECHA VÉLEZ-FAJARDO, a minor,

Plaintiffs, Appellees,

v.

AMADO VEGA-IRIZARRY; MIGUEL A. MARRERO; JANE ERICKSON;

VÍCTOR M. LÓPEZ; TEODORO LEBRÓN, ET AL.,

Defendants, Appellants,

UNITED STATES OF AMERICA,

Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Selya, and Lynch,

Circuit Judges.

Anthony A. Yang, with whom Barbara L. Herwig, Attorneys,

Appellate Staff, Civil Division, Peter D. Keisler, Assistant

Attorney General, and H.S. García, United States Attorney, were on

brief, for appellant.

Frank D. Inserni-Milam, with whom Luis R. Mellado-González,

was on brief, for appellees.

September 2, 2005
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TORRUELLA, Circuit Judge. This case concerns the tragic

death of Antonio Vélez-García ("Vélez"), an undercover Federal

Bureau of Investigation ("FBI") cooperating witness, who was

murdered by a gang member while assisting the FBI in a criminal

investigation into Puerto Rico gang-related drug trafficking

involving the use of firearms.

Vélez's parents, Antonio Vélez-Díaz and Santa GarcíaHernández, his widow, Yahaira Fajardo-Correa, and his minor

daughter, Antonecha Vélez-Fajardo ("Vélez's relatives"), brought an

action for money damages in the United States District Court for

the District of Puerto Rico against the individual law enforcement

agents with whom Vélez was cooperating at the time of his death --

FBI agents Amado Vega-Irizarry, Miguel A. Marrero, and Jane

Erickson, and Puerto Rico police officers Víctor M. López and

Teodoro Lebrón -- in their individual capacities. Vélez's

relatives seek over ten million dollars in damages based on two

principal claims for monetary relief: (1) a claim pursuant to

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388

(1971), alleging a violation of the Fifth Amendment; and (2) a

negligence claim arising under the Puerto Rico Constitution and

Puerto Rico statutory law.

The United States and the individual defendants now bring

the present interlocutory appeal challenging the district court's

opinion and order, which denied a motion to substitute the United
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States as defendant for the state law claim pursuant to the

Westfall Act, 28 U.S.C. § 2679, and to dismiss the Bivens claim.

I.

A. Factual Background

On or about January 16, 2003, federal agents arrested

Vélez for possession of controlled substances and informed him that

he might serve a long prison sentence for his criminal activity.

Vélez told the agents that he did not want to go to prison, and the

agents asked Vélez if he was interested in cooperating with them.

Vélez later accepted the offer to cooperate and worked with the FBI

as a cooperating witness for nearly two months until he was killed

in the early morning of March 5, 2003.

On the evening of March 4, 2003, Vélez was working with

the defendant agents to set up large-scale transactions of

controlled substances and/or firearms in Guaynabo, Puerto Rico.

The agents installed a video camera in the van Vélez used for the

transaction and attached a recording device to Vélez's body. Vélez

remained in constant communication with the agents via the

recording device. After about four hours of contact with the gang

members, including David Gómez-Olmeda, Vélez repeatedly stated

through the body-recording device that he was tired and wanted to

leave. Shortly thereafter, Gómez, without warning, shot Vélez

approximately eight times at close range and killed him.
 Plaintiffs also made a claim against Puerto Rico police officers 1

López and Lebrón pursuant to 42 U.S.C. § 1983, but that claim was

dismissed by the district court on the ground that these defendants

were acting under color of federal law, rather than state law, as

federally deputized agents. That ruling is not at issue in this

interlocutory appeal.

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In their complaint, plaintiffs aver that Vélez's murder

was the direct result of the failure of the defendant agents to

follow unspecified FBI and Puerto Rico police regulations, policies

and directives in the handling of informants and witnesses

cooperating with the government. In particular, plaintiffs contend

that the agents were reckless in failing to protect Vélez, "because

they left [Vélez], by himself, far away from themselves." Compl.

¶ 21. Plaintiffs thus claimed damages pursuant to the Fifth

Amendment of the United States Constitution as well as Article II,

Sections 8 and 10 of the Constitution of the Commonwealth of Puerto

Rico and the Puerto Rico statutory law of negligence, P.R. Laws

Ann. Tit. 31, § 5141.1

B. Procedural History

The individual defendants and the United States moved to

dismiss both the state law and federal constitutional claims. With

respect to the claims arising under Puerto Rico statutory and

constitutional law, the United States moved to substitute itself

for the individual defendants pursuant to Section 6 of the Westfall

Act, 28 U.S.C. § 2679(d), by certifying that the defendants were

acting within the scope of their federal employment. At the same
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time, the individual defendants moved to dismiss the federal

constitutional claim on the grounds that plaintiffs' complaint did

not state a constitutional violation and, alternatively, that the

officers were entitled to qualified immunity. Plaintiffs did not

oppose the motion to dismiss. On March 25, 2004, the district

court issued an opinion and order denying the motion for

substitution and dismissal.

The issues before us in this interlocutory appeal are (1)

whether the district court erred by not substituting the United

States as the defendant for plaintiffs' damages claim based on

Puerto Rico law, and (2) whether the district court erred in

denying the individual agents qualified immunity from this Bivens

claim; this encompasses, as the first part of the immunity test,

whether a constitutional claim has been stated at all.

II.

A. Westfall Act Substitution

In the case below, the United States certified that the

individual defendants were acting within the scope of their federal

employment and moved to substitute itself for the individual

defendants pursuant to Section 6 of the Westfall Act, 28 U.S.C.

§ 2679(d).

"Under the Westfall Act, the Attorney General can certify

that a federal employee named as a defendant in a civil case was

'acting within the scope of his office or employment at the time of
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the incident' that serves as the basis for a tort claim against

that employee." Lyons v. Brown, 158 F.3d 605, 606 (1st Cir. 1998)

(quoting 28 U.S.C. § 2679(d)(1)). The Act provides that "[u]pon

certification . . . any civil action or proceeding commenced upon

such claim in a United States district court shall be deemed an

action against the United States . . . and the United States shall

be substituted as the party defendant." 28 U.S.C. § 2679(d)(1).

While certification is sufficient to substitute the United States

as defendant and dismiss the federal employees from the case, the

certification is "provisional and subject to judicial review."

Davric Me. Corp. v. United States Postal Serv., 238 F.3d 58, 65

(1st Cir. 2001) (citing Gutiérrez de Martínez v. Lamagno, 515 U.S.

417, 434 (1995)). Where plaintiffs are able to show that the

employees acted outside the scope of their employment, the

employees may be re-substituted as the party defendants. Davric,

238 F.3d at 65; Aversa v. United States, 99 F.3d 1200, 1208 (1st

Cir. 1996).

1. Jurisdiction

At the threshold, plaintiffs-appellees argue that the

United States does not have standing to appeal the district court's

denial because the United States is not a party to the suit and has

not attempted to intervene. We disagree. In addition to

recognizing "an exception to the only a party may appeal rule that

allows a nonparty to appeal the denial of a motion to intervene,"
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Microsystems Software, Inc. v. Scandinavia Online AB, 226 F.3d 35,

40 (1st Cir. 2000) (internal quotation marks omitted), this court

and others have entertained the United States' right to appeal

immediately from orders denying Westfall Act substitution. See,

e.g., Lyons, 158 F.3d at 606-07 (allowing interlocutory appeal of

district court order denying Westfall Act substitution brought by

both the United States and the individual defendant); Taboas v.

Mlynczak, 149 F.3d 576, 579 (7th Cir. 1998) (treating Westfall Act

immunity in the same fashion as qualified immunity in federal civil

rights actions, denials of which are customarily subject to

immediate interlocutory appeal).

Plaintiffs also argue that the district court's order

denying substitution is not yet ripe for appeal because the

government’s certification is not conclusive and plaintiffs require

discovery to challenge the certification.

While we agree that the government's certification is

subject to judicial review such that the individual agents might be

later re-instated as defendants in this case, see Davric, 238 F.3d

at 65; Aversa, 99 F.3d at 1208, this does not alter the fact that

the initial step "[u]pon certification" is that "any civil action

or proceeding commenced . . . in . . . district court shall be

deemed an action against the United States . . . and the United

States shall be substituted as the party defendant." 28 U.S.C.

§ 2679(d)(1).
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Plaintiffs contend that the word "shall" in 28 U.S.C.

§ 2679(d)(1), is not mandatory, citing Gutiérrez de Martínez, 515

U.S. at 432 n.9, which indicates in a footnote that the term

"shall" is sometimes used to mean "may." This reference by the

Supreme Court, however, merely explains that the certification does

not "conclusively establish as correct the substitution of the

United States as defendant in place of the employee." Id. at 434.

In Gutiérrez de Martínez, the Supreme Court, in a divided decision,

determined that the Attorney General's certification is not

conclusive and that district courts may review the certification of

scope of employment in light of plaintiffs' objections. This is

not irreconcilable with the process that has been established by

the courts -- that the United States is initially substituted upon

certification, and the defendants may be re-substituted later if

the court determines that they were not acting within the scope of

their federal employment.

Plaintiffs' stated intent to challenge the filing and

service of a certification in the appropriate form, and their need

for discovery to mount this challenge are irrelevant to this

interlocutory appeal. The United States and individual defendants

challenge the substance of the district court's denial of the

initial substitution of the United States upon certification, as

provided for in § 2679(d)(1). The possibility that the district

court may later determine that a federal employee was acting
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outside the scope of his or her employment, contrary to the

government's certification and should be "re-substituted," has no

bearing on the fact that the district court should have initially

substituted the United States as defendant "[u]pon certification."

Id.

For these reasons, we find that the United States has

standing to appeal the denial of Westfall Act substitution along

with the individual defendants.

2. Merits

The district court denied the motion to substitute the

United States on the basis of its conclusion that an exception to

substitution applied in this case because the plaintiffs asserted

a Bivens cause of action under the federal Constitution, in

addition to the state law claims. We find that the fact that this

case raises both state law and federal constitutional claims does

not render inapplicable the Westfall Act's requirement for the

substitution of the United States for the defendants with respect

to the state law claims.

Section 5 of the Westfall Act, 28 U.S.C. § 2679(b),

provides that the remedy against the United States under the

Federal Tort Claims Act (FTCA) for "personal injury or death

arising or resulting from the negligent or wrongful act or omission

of any employee of the Government while acting within the scope of

his office or employment is exclusive of any other civil action or
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proceeding for money damages by reason of the same subject matter"

and shall "preclude[]" any other damages action "arising out of or

relating to the same subject matter." 28 U.S.C. § 2679(b)(1)

(emphases added). The second paragraph of Section 5 then provides

two exceptions to the exclusiveness of the remedy and preclusion of

other damage suits, including that "[p]aragraph (1) does not extend

or apply to a civil action against an employee of the Government

. . . which is brought for a violation of the Constitution of the

United States." Id. at § 2679(b)(2).

This exception for federal constitutional violations,

however, applies only to paragraph (1) of Section 5, id. § 2679

(b)(1), and not to the provision for substitution of the United

States "[u]pon certification by the Attorney General," which

appears in § 2679(d). Indeed, courts routinely order Westfall Act

substitution of the United States as the defendant for state law

claims when both state law and federal constitutional damage claims

are asserted against federal employees. See, e.g., Davric, 238

F.3d at 65 (affirming Westfall Act substitution only as to state

law claims where plaintiff also asserted Bivens claims against

federal employee); Aversa, 99 F.3d at 1206 (same).
 While the United States argued below that the FTCA claim against 2

it should be dismissed once the government is substituted as the

defendant party, that issue is not before this court. Our

jurisdiction over this interlocutory appeal extends only to the

collateral order denying the United States' request for party

status through substitution.

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Thus, we find that the district court's failure to make

a partial substitution of the United States as party defendant as

to the state law claims was error.2

B. Bivens claim

The individual agents contend that the district court

should have dismissed plaintiffs' federal Bivens claim against the

agents because the individual agents are entitled to qualified

immunity. See Fed. R. Civ. P. 12(b)(6). We review the denial of

a motion to dismiss de novo, assuming plaintiffs' allegations are

true and making all reasonable inferences in favor of the

plaintiffs. See Garrett v. Tandy Corp., 295 F.3d 94, 97 (1st Cir.

2002).

1. Jurisdiction

Before reaching the merits, however, we must consider the

threshold issue of jurisdiction. This court would not normally

have interlocutory jurisdiction over the district court's denial of

the motion to dismiss for failure to state a constitutional

violation because it is not a "final decision" in the sense

required by 28 U.S.C. § 1291 (conferring appellate jurisdiction

over "final decisions" of the district courts). This issue,
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however, is the first question courts must answer when considering

a claim qualified immunity. We will, therefore, address this issue

in our qualified immunity analysis.

Appellate courts have jurisdiction over interlocutory

appeals from denials of qualified immunity where "the denial rests

on purely legal questions and not on disputed issues of fact."

Riverdale Mills Corp. v. Pimpare, 392 F.3d 55, 60 (1st Cir. 2004).

"The Supreme Court has held that the denial of a dispositive motion

bottomed on qualified immunity cannot support an interlocutory

appeal if the controlling question is 'whether or not the pretrial

record sets forth a genuine issue of fact for trial.'" CamiloRobles v. Zapata, 175 F.3d 41, 45 (1st Cir. 1999) (quoting Johnson

v. Jones, 515 U.S. 304, 319-20 (1995)). However, where the

"operative question is purely legal in nature," the denial of a

proffered qualified immunity defense remains immediately appealable

as a collateral order. Camilo-Robles v. Hoyos, 151 F.3d 1, 8 (1st

Cir. 1998) (citing Johnson, 515 U.S. at 319); accord Stella v.

Kelley, 63 F.3d 71, 74 (1st Cir. 1995).

Plaintiffs contend that the individual defendants do not

have standing to appeal the district court's denial of defendants'

motion to dismiss because the district court found that material

questions of fact remain on the issue of whether the defendants

should be granted qualified immunity. The district court

determined that there is a disputed factual issue as to whether
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defendants' actions were sufficiently reckless to rise to the level

of a constitutional violation and thus declined to grant qualified

immunity without further fact-finding.

Defendants appeal the district court's rejection of their

argument that, as a matter of law, the facts alleged by the

plaintiffs cannot amount to a violation of substantive due process

under clearly established law. In other words, defendantsappellants frame the issue of whether plaintiffs have stated a

claim upon which relief may be granted as a purely legal rather

than factual issue. We therefore find that appellate jurisdiction

exists over the qualified immunity issue.

2. Merits

The justification for the qualified immunity doctrine is

that "public officials performing discretionary functions should be

free to act without fear of retributive suits for damages except

when they should have understood that particular conduct was

unlawful." Limone v. Condon, 372 F.3d 39, 44 (1st Cir. 2004).

Thus, the Supreme Court has held that qualified immunity "is an

immunity from suit rather than a mere defense to liability" and "it

is effectively lost if a case is erroneously permitted to go to

trial." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Determining whether officials are entitled to qualified

immunity involves a three-part test. See Rivera-Jiménez v.

Pierluisi, 362 F.3d 87, 93 (1st Cir. 2004). First, we must ask:
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"'Taken in the light most favorable to the party asserting the

injury, do the facts alleged show the officer's conduct violated a

constitutional right?'" Riverdale Mills Corp. v. Pimpare, 392 F.3d

55, 61 (1st Cir. 2004) (quoting Saucier v. Katz, 533 U.S. 194, 201

(2001)). Second, we ask "'whether the right was clearly

established at the time of the alleged violation' such that a

reasonable officer would 'be on notice that [his] conduct [was]

unlawful.'" Id. (quoting Suboh v. Dist. Attorney's Office, 298

F.3d 81, 90 (1st Cir. 2002)) (brackets in original). Finally, we

must determine "whether a 'reasonable officer, similarly situated,

would understand that the challenged conduct violated' the clearly

established right at issue." Id. (quoting Suboh, 298 F.3d at 90).

Defendants' qualified immunity defense was brought

pursuant to Federal Rule of Civil Procedure 12(b)(6) in a motion

for failure to state a claim upon which relief may be granted. The

qualified immunity analysis must, therefore, be based solely on the

facts stated in plaintiffs' complaint. Riverdale Mills, 392 F.3d

at 61.

At the threshold, we consider whether the allegations,

taken in the light most favorable to the plaintiffs, could support

a conclusion that the individual agents violated Vélez's

constitutional rights. At this stage of the inquiry, "courts must

not define the relevant constitutional right in overly general

terms, lest they strip the qualified immunity defense of all
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meaning." Butera v. District of Columbia, 235 F.3d 637, 646-50

(D.C. Cir. 2001) (citing Anderson v. Creighton, 483 U.S. 635, 639

(1987)).

Plaintiffs alleged that Vélez's murder was a direct

result of defendants' failure to follow unspecified FBI and local

police regulations concerning the handling of informants and

witnesses cooperating with the government. Thus, plaintiffs

asserted a Bivens claim alleging a violation of Fifth Amendment

substantive due process. Defendants countered that there can be no

Due Process violation when the government fails to protect an

individual from private violence and, therefore, the Bivens claim

should be dismissed. The district court acknowledged that

"negligent or even wilfully reckless state action will not create

a constitutional violation when the government was only causally

connected to the harm." Vélez-Díaz v. Vega-Irizarry, No. 04-1773,

slip op. at 10 (D.P.R. Mar 25, 2004) (citing Monahan v. Dorchester

Counseling Ctr., Inc., 961 F.2d 987, 993 (1st Cir. 1992)).

Nevertheless, the district court concluded that plaintiffs

sufficiently pled a violation of substantive due process based on

the court's view that the agents failed to protect Vélez after

their actions and omissions rendered him "more vulnerable to

peril." Id.

The Due Process Clause applies only to governmental

deprivations of life, liberty, or property and thus provides no
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guarantee of government protection from harms caused by private

parties. See U.S. Const. amend. V. ("No person shall . . . be

deprived of life, liberty, or property, without due process of

law."). This court has held that to establish a substantive due

process claim plaintiffs must first establish a deprivation of a

"protected interest" in life, liberty, or property. Rivera v.

Rhode Island, 402 F.3d 27, 33-34 (1st Cir. 2005); accord Washington

v. Glucksberg, 521 U.S. 702, 722 (1997) (finding identification of

a fundamental right is a "threshold requirement" in establishing a

due process violation). In this case, Vélez's relatives allege

that Vélez was deprived of his life as a result of the agents'

inaction, and Vélez's life is a protected interest.

Plaintiffs must also show that the deprivation of the

protected right was caused by government conduct. It is wellsettled that the due process provision of the Fifth Amendment

serves as a limitation only on governmental, not private, action.

See Gerena v. P. R. Legal Servs., Inc., 697 F.2d 447, 449 (1st Cir.

1983) (citing Pub. Utils. Comm'n v. Pollak, 343 U.S. 451, 461

(1952)). When a government official himself inflicts harm upon an

individual or his property, that action can constitute a

deprivation of a protected interest if the official's conduct

shocks the conscience. See Martínez v. Colón, 54 F.3d 980, 986

(1st Cir. 1995) ("To be sure, violence is attributable to state

action if the perpretrator is acting under color of state law.");
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cf. Cummings v. McIntire, 271 F.3d 341, 344-47 (1st Cir. 2001)

(unnecessary and hard shove with abusive language by officer not

conscience-shocking absent intent to harm). In this case, however,

the person who shot Vélez was clearly a private actor.

Nevertheless, in scenarios in which government officials

actively direct or assist private actors in causing harm to an

individual, some courts have treated the government's involvement

as amounting to government conduct. For example, "if the police

had handed [Gómez] the gun with instruction to shoot [Vélez], cf.

Hemphill v. Schott, 141 F.3d 412, 418-19 (2d Cir. 1998), or assured

[Gómez] that he could attack [Vélez] with impunity, cf. Dwares v.

City of New York, 985 F.2d 94, 96-97 (2d Cir. 1993)," these actions

may constitute government conduct. Rivera, 402 F.3d at 34. In

such scenarios, the government officials and the private actor are

essentially "joint tortfeasors, and therefore, may incur shared

constitutional responsibility." Martínez v. Colón, 54 F.3d 980,

985 n.4 (1st Cir. 1995). However, there is no claim of such joint

enterprise here. In this case, plaintiffs claim that the

government involvement was a creation of risk and then a failure to

protect against that risk.

Outside contexts in which the action of government

officials (or their joint tortfeasors) injure citizens, this court

has been careful to limit substantive due process to the parameters

articulated by the Supreme Court in DeShaney v. Winnebago County
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Department of Social Services, 489 U.S. 189, 197 (1989). There,

the Supreme Court stated that "[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."

Id. at 197.

The DeShaney Court also recognized a limited exception to

this rule which applies to circumstances in which the government

has a "special relationship" with the individual because government

action has deprived that individual of the liberty needed to

protect himself. Id. at 200. In such situations a constitutional

duty to protect may arise. "The affirmative duty to protect arises

not from the State's knowledge of the individual's predicament or

from its expressions of intent to help him, but from the limitation

which it has imposed on his freedom to act on his own behalf." Id.

"This court has recognized that this [special] relationship, and

thus a constitutional duty, may exist when the individual is

incarcerated or is involuntarily committed to the custody of the

state." Rivera, 402 F.3d at 34 (citing Monahan, 961 F.2d at 991-

92).

Plaintiffs in this case, however, have not identified a

custodial relationship between Vélez and the agents that

constitutes a "special relationship" creating an affirmative

constitutional duty to protect. Vélez was not in custody or

involuntarily committed while he was acting as an informant for the
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federal agents, but rather was free to decline to cooperate further

with the agents at any point.

In addition to the special "custodial" relationships, the

DeShaney Court suggested, but never expressly recognized, the

possibility that liability might arise where the state creates or

substantially contributes to the creation of a danger.

Specifically, the Supreme Court stated that "[w]hile the State may

have been aware of the dangers . . . it played no part in their

creation, nor did it do anything to render him more vulnerable to

them." DeShaney, 489 U.S. at 201 (emphasis added).

Most of the circuit courts have now acknowledged that the

existence of a constitutional violation is possible, on particular

facts, under a "state-created danger" theory of liability. See

Butera, 235 F.3d at 648-51 (joining other circuits "in holding

that, under the State endangerment concept, an individual can

assert a substantive due process right to protection by [state]

from third-party violence when [state] officials affirmatively act

to increase or create the danger that ultimately results in the

individual's harm"). See, e.g., Kallstrom v. City of Columbus, 136

F.3d 1055, 1066-67 (6th Cir. 1998) (holding that the City of

Columbus's release of information from undercover officers' files

to defense counsel, which substantially increased the vulnerability

of the officers to private acts of vengeance, created a

constitutionally cognizable state-created danger); Wood v.
 This court recently noted that 3

[i]t is not clear from the "creation of danger" language

in DeShaney whether a state action which enhances or

creates danger to an individual would provide a separate

exception to the general rule of no duty to protect, or

whether the language is simply in service of the special

relationship exception and provides a set of

circumstances where the state's actions might create a

"special relationship" and thus a duty to protect.

Rivera, 402 F.3d at 35 n.5.

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Ostrander, 879 F.2d 583, 589-90 (9th Cir. 1989) (holding that

plaintiff raised a genuine factual dispute whether state trooper

deprived her of a constitutional liberty interest by abandoning

her, after impounding her vehicle, at night in a high-crime area,

resulting in her rape by a stranger from whom she accepted a ride).

The Fifth Circuit, however, has flatly rejected the

"state-created danger" theory of liability. See Beltrán v. City of

El Paso, 367 F.3d 299, 307 (5th Cir. 2004).

"This court has, to date, discussed the state created

danger theory, but never found it actionable on the facts alleged."

Rivera, 402 F.3d at 35 (collecting cases).3

In determining whether Vélez's relatives have alleged a

substantive due process violation, we keep in mind that "in a state

creation of risk situation, where the ultimate harm is caused by a

third party, 'courts must be careful to distinguish between

conventional torts and constitutional violations, as well as
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between state inaction and action." Id. at 36 (quoting Soto v.

Flores, 103 F.3d 1056, 1064 (1st Cir. 1997)).

We hold that plaintiffs have not alleged facts to support

a claim based on the state created danger theory. Plaintiffs'

theory may be that the government owes a duty to all cooperating

witnesses to protect them from harm. There are risks inherent in

being a cooperating witness, but the state does not create those

dangers, others do, and the witness voluntarily assumes those

risks. See Summar v. Bennett, 157 F.3d 1054, 1059 & n.2 (6th Cir.

1998).

We leave open the question whether, nonetheless, the

state may violate substantive due process as to cooperating

witnesses if it takes certain actions, such as sending a

cooperating witness to what the state knows would be his certain

death. Such action may shock the conscience by demonstrating

"deliberate indifference." See Butera, 235 F.3d at 652. This case

does not come close. There is no allegation the government knew

Vélez would be murdered. At most, the allegation is that Vélez

said that he was tired, not that he said he was under imminent

risk. The attempt to show a substantive due process violation

based on a claim that some yet unknown regulation required the

state to promptly remove "tired" cooperating witnesses fails.

Plaintiffs have therefore failed to carry their burden

under the threshold inquiry for qualified immunity. Absent a
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showing that the agents' conduct violated a constitutional right,

qualified immunity applies.

III.

For the reasons stated, the order of the district court

is reversed and the case is remanded for further proceedings

consistent with this opinion.

Reversed and Remanded.