*District Judge of the Southern District of Texas, sitting

by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 91-1807

 

DORA SALAS, Individually and

as Representative of the Estate

of obo JUANITA HERMOSILLO, et al.,

Plaintiffs-Appellees,

versus

DON CARPENTER, Individually and

in his capacity as Sheriff of

Tarrant County, Texas, et al.,

Defendants-Appellants.

 

Appeal from the United States District Court

for the Northern District of Texas

 

( December 16, 1992 )

Before HIGGINBOTHAM and DUHÉ, Circuit Judges, and HARMON,*

District Judge.

HIGGINBOTHAM, Circuit Judge:

In this civil rights suit a former sheriff of Tarrant County,

Texas appeals denial of dismissal or summary judgment based upon a

claim of qualified immunity. Sheriff Don Carpenter commanded

police efforts to free a hostage. The effort failed and Juanita

Hermosillo, the hostage, was killed by her abductor. A public

official enjoys a qualified "immunity from suit," not just immunity

from liability, Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct.
2

2806, 2815 (1985) (emphasis in original). We find that no claim

for deprivation of constitutional rights has been stated and in any

event there is immunity. We reverse.

I

Juanita Hermosillo was a clerk in Tarrant County Justice Court

No. 1 from 1981 until her death. In 1982, Hermosillo began dating

Manuel Cabano, who worked for the Tarrant County Sheriff's

Department in the early 1980's. They married in 1988, but their

relationship was at best strained and by 1989 they lived

separately. On Monday, July 24, 1989, Hermosillo complained to the

Tarrant County District Attorney's office that Cabano was sexually

molesting her two daughters from a previous marriage. Hermosillo

hid from Cabano for the rest of the week, staying with a friend and

not going to work. On July 31, Justice of the Peace Robert Ashmore

told Hermosillo to return to work the next day. Cabano had not

been arrested on the sexual assault complaint.

Around 3:00 p.m. on Tuesday, August 1, 1989, Cabano entered

Judge Ashmore's offices at the Tarrant County courthouse with two

guns. Cabano took Hermosillo and Judge Ashmore hostage, but soon

released the judge. Others fled the office when Cabano entered and

called the Tarrant County Sheriff's Department and the Fort Worth

Police Department. Both agencies responded.

The Fort Worth Police Department dispatched its SWAT and

hostage negotiation teams to the scene. They included negotiators

with several years of training and experience. They began to set

up a command post and communications equipment, in preparation for
3

negotiating with Cabano. They were equipped to monitor or cut off

Cabano's outside telephone calls and to record conversations

between Cabano and negotiators. The SWAT team positioned snipers

with a view of Judge Ashmore's offices. Fort Worth Chief of Police

Thomas Windham was at the scene.

Before the Fort Worth police teams finished deploying, Tarrant

County Sheriff Don Carpenter demanded that the police officers

leave, claiming that courthouse security was within the exclusive

jurisdiction of the sheriff's department. In a heated discussion,

Carpenter refused Chief Windham's offer of police assistance. 

Carpenter asserted that he did not need assistance, and ordered the

police officers to leave the courthouse, which they did. After

Cabano demanded that snipers leave the nearby rooftop, Carpenter

insisted upon their removal and Chief Windham complied.

The sheriff's department did not have a SWAT team in 1989. It

also lacked a hostage negotiation policy. Five deputies attended

one week of hostage negotiation training in 1988 and 1989, as a

sixth deputy had in 1982. None had any actual experience, and only

three of those trained were present during this crisis. The

sheriff's department had no equipment to control communications in

and out of Judge Ashmore's office, as the police department did.

A telephone company employee assigned to the courthouse left the

scene before successfully cutting off Cabano's contact with the

outside world.

Carpenter and several of his deputies knew Cabano from his

prior employment in the sheriff's department. Carpenter appointed
4

Lt. Smith, the officer with the most recent negotiation training,

as the chief negotiator. During the afternoon several civilians

untrained in hostage negotiations spoke to Cabano. Before Lt.

Smith arrived, two investigators from the D.A.'s office spoke with

Cabano by telephone. During this conversation Cabano was upset and

excited, speaking of the sexual abuse accusations against him. At

one point, Carpenter spoke briefly to Cabano, who hung up on him.

In the late afternoon, Cabano demanded to speak with his attorney,

Alex Gonzalez. At Carpenter's order, Gonzalez was summoned to the

courthouse and negotiated with Cabano. Meanwhile, Dr. James

Greenstone, a leading hostage negotiation authority and instructor

in North Texas, offered his services to Carpenter, but his offer

was declined. 

Telephone negotiations continued throughout the afternoon and

early evening. The negotiators were located in an office of the

courthouse which became crowded with non-essential persons. Cabano

asked to speak to a reporter, and one was brought into the

courthouse, although Cabano was not given an opportunity to talk to

him. Two soft drinks were delivered to Cabano, but he refused to

make any good faith gesture such as surrendering one of his

weapons. Carpenter rejected Investigator Byrnes' suggestion that

the courthouse air conditioning be shut down. At no time did

Carpenter or his negotiators contact Hermosillo's family or the

D.A.'s office to learn about the charges against Cabano.

By evening, Cabano became unresponsive, and began to leave the

telephone in Judge Ashmore's office off the cradle for long
 

1Plaintiffs point to several errors made during the

negotiations, including agreeing to demands for the snipers'

removal and the presence of a reporter without obtaining a

corresponding concession from Cabano, allowing persons acquainted

with Cabano to speak to him, and allowing the command post to

become overcrowded.

5

intervals. After 9:00 p.m., Hermosillo expressed a desire to talk

with her children on the telephone. Members of the sheriff's

department considered these as dangerous signs. They did not have

SWAT weapons and training for executing a dynamic entry into Judge

Ashmore's chambers and did not do so. Around 9:40 p.m., Cabano

shot and killed Hermosillo, then himself.

In the days following this tragedy, Carpenter responded to

criticism by saying that he was proud of his department. He stated

that a SWAT team was neither necessary nor useful under these

circumstances. He also stated, regarding Cabano, "I wouldn't have

believed he would have done it, but he did it."

Plaintiffs filed their section 1983 and tort claims in state

court, and the defendants removed to federal district court. The

complaint states that many of Carpenter's actions and decisions

were wrongful, focusing on two in particular: the removal of Fort

Worth police from the scene and the conduct of the negotiations.

Plaintiffs claim that Carpenter deprived Hermosillo of her life by

preventing the Fort Worth police SWAT and hostage negotiation teams

from effectuating her release. Plaintiffs also claim that

Carpenter caused Hermosillo's death by using incompetent hostage

negotiators, including untrained civilians, rather than Fort Worth

police negotiators or Dr. James Greenstone.1 Finally, plaintiffs
 

2Plaintiffs objected to (1) the statement regarding

Carpenter's capacity, as an ultimate fact; (2) the description of

the situation as a police emergency, as an expert opinion; (3)

the statement regarding making policy decisions, as a conclusory

fact and/or conclusion of law; (4) the statement regarding his

intent and objective, as an ultimate fact; and (5) the denial of

conscious indifference and deliberate disregard, as ultimate

facts. 

6

argue that the sheriff failed to provide adequate training and

equipment for a hostage situation, including SWAT weapons and

communications equipment.

Plaintiffs contend that Carpenter acted negligently, with

deliberate indifference and with conscious disregard for

Hermosillo. They support these allegations with Dr. Greenstone's

affidavit. Plaintiffs also argue that Carpenter's statements to

the press following August 1, 1989 demonstrate these mental states.

Plaintiffs claim that Carpenter's actions were motivated by his

ego, his jealousy of the courthouse, and professional envy of the

police department.

Carpenter's affidavit in support of his motion stated that at

all relevant times Carpenter acted in his official capacity as

sheriff in the performance of policing the courthouse. He stated

that his "objective and intent on this occasion was to secure the

release of the hostage unharmed, to apprehend the gunman, and to

protect the safety of the general public and the peace officers

involved." Plaintiffs moved to strike Carpenter's affidavit, on

the basis that it improperly asserted inadmissible "expert"

opinions without foundation, ultimate facts, and conclusions of

law.2 The district court granted this motion. Thereafter, the
7

district court denied defendant's summary judgment motion on the

basis that it was not supported by affidavit as required by rule

56. Fed. R. Civ. P. 56. The district court also denied

Carpenter's motion to dismiss, on the ground that it was "not well

taken."

II

Denial of dismissal or summary judgment for want of qualified

immunity fits within the small class of interlocutory decisions

qualifying for appellate review. Mitchell v. Forsyth, 472 U.S.

511, 527, 105 S. Ct. 2806, 2816 (1985). We may review the denial

of a claim of qualified immunity "to the extent it turns on an

issue of law." Id. at 530, 105 S. Ct. at 2817. Plaintiffs argue

that we lack jurisdiction because there are disputed factual issues

material to immunity. See Feagley v. Waddill, 868 F.2d 1437, 1441-

42 (5th Cir. 1989). We conclude that no genuine issue of fact

relevant to resolving the immunity question remains.

Until recently, uncertainty in this Circuit clouded whether or

not we had jurisdiction in these interlocutory appeals to decide

whether plaintiffs had stated a constitutional claim. Compare

Gagne v. City of Galveston, 805 F.2d 558, 559 n.1 (5th Cir. 1986)

(holding that denial of Rule 12(b)(6) motion asserting qualified

immunity is appealable), cert. denied, 483 U.S. 1021 (1987), with

Chrissy F. by Medley v. Mississippi Dep't of Public Welfare, 925

F.2d 844, 849 (5th Cir. 1991) (holding that denial of motion to

dismiss for failure to state claim while asserting qualified

immunity not appealable). The Supreme Court in Siegert v. Gilley,
 

3Despite our disposition of this appeal, Tarrant County,

Texas, remains a defendant in the district court. Our recitation

of facts accepts plaintiffs' evidence and reasonable inferences

from it as true, and should not be construed as expressing any

opinion regarding the weight or credibility of the evidence.

8

111 S. Ct. 1789 (1991), has now made it clear that our first

inquiry in an appeal asserting qualified immunity is whether a

valid constitutional claim has been made. See Duckett v. City of

Cedar Park, 950 F.2d 272, 278 (5th Cir. 1992); see also White v.

Taylor, 959 F.2d 539, 545 n.4 (5th Cir. 1992); Quives v. Campbell,

934 F.2d 668, 669-70 (5th Cir. 1991). Our review is plenary

accepting the facts in the light most favorable to the nonmoving

party. Doe v. Taylor Ind. School Dist., 975 F.2d 137, 139 n.2 (5th

Cir. 1992).3

III

Plenary review requires that we first settle the record by

resolving issues of evidence. The district court struck

Carpenter's affidavit, the only one submitted in support of his

motion for summary judgment, and denied his motion for summary

judgment on the ground that it was "not supported by affidavit as

required by Rule 56." This basis for denial was improper. Rule 56

does not require that a moving party support its motion with

affidavits. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.

Ct. 2548, 2553 (1986). In cases where the nonmoving party bears

the burden of proof on a dispositive issue, a summary judgment

motion may rely solely on the pleadings. Id. at 324, 106 S. Ct. at

2553. The movant can support its motion by pointing out the

absence of evidence supporting the nonmovant's case. See Saunders
9

v. Michelin Tire Corp., 942 F.2d 299, 301 (5th Cir. 1991). Here,

plaintiffs bear the burden of negating Carpenter's qualified

immunity defense. Chrissy F., 925 F.2d at 851; see also infra

section IV.

The district court also erred in striking Carpenter's entire

affidavit. The court should disregard only the inadmissible

portions of a challenged affidavit. Williamson v. United States

Dep't of Agriculture, 815 F.2d 368, 383 (5th Cir. 1987); Lee v.

National Life Assurance Co. of Canada, 632 F.2d 524, 529 (5th Cir.

1980). At least part of Carpenter's affidavit was admissible.

Plaintiffs' claims make Carpenter's state of mind on August 1,

1989, material. His testimony of his intent that day may be

admitted. Plaintiffs' contention that it goes to an ultimate fact

misses the mark. This is not opinion testimony, but factual

evidence of the sheriff's mental state. The Federal Rules of

Evidence abandoned the ancient rule against testimony regarding

ultimate facts, so long as such testimony is helpful to the jury.

See Fed. R. Evid. 704 advisory committee's note (1972).

On the other hand, we find that a portion of the summary

judgment evidence upon which plaintiffs rely is not admissible.

Dr. James Greenstone testified by affidavit regarding the hostage

crisis and pointed out many errors that he believes Carpenter

committed. Dr. Greenstone stated what policies and procedures

should, in his expert opinion, have been followed in negotiating

with Cabano. The affidavit then asserts that Carpenter acted with

deliberate indifference and conscious disregard, as those mental
10

states are conventionally defined. Plaintiff cannot rely on these

last assertions to create a genuine issue regarding Carpenter's

mental state.

Affidavits submitted for summary judgment determinations must

set forth facts "as would be admissible in evidence." Fed. R. Civ.

P. 56(e). "Evidence inadmissible at trial cannot be used to avoid

summary judgment." Broadway v. City of Montgomery, 530 F.2d 657,

661 (5th Cir. 1976). As plaintiffs argued regarding Carpenter's

affidavit, conclusory assertions cannot be used in an affidavit on

summary judgment. See id. at 660. Expert witnesses may perform

two roles: explaining evidence to a jury, and acting as the source

of evidence for a jury. In re Air Crash Disaster at New Orleans,

795 F.2d 1230, 1233 (5th Cir. 1986). When the expert speaks in the

latter role, we give less deference to a district court's

admissibility decision. Id. We conclude that Dr. Greenstone's

conclusory assertions regarding Carpenter's state of mind are not

admissible.

As an expert in the field of hostage negotiation, Dr.

Greenstone can properly offer evidence on effective methods and

explain to a jury faults in the methods employed by a police force.

On the other hand, Dr. Greenstone is not in a better position than

a juror to conclude whether Carpenter's actions demonstrated such

a lack of concern for Hermosillo's safety as to constitute

deliberate indifference or conscious disregard. Opening the door

to ultimate issues did not "open the door to all opinions." Owen

v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983). The focus
 

4"Under Rules 701 and 702, opinions must be helpful to the

trier of fact, and Rule 403 provides for exclusion of evidence

which wastes time. These provisions afford ample assurances

against the admission of opinions which would merely tell the

jury what result to reach . . .." Fed. R. Evid. 704 advisory

committee's note (1972).

11

in deciding whether an expert's opinion should be admitted is Rule

702's standard: whether the testimony will "assist the trier of

fact to understand the evidence or to determine a fact in issue."

Fed. R. Evid. 702; 3 Jack B. Weinstein and Margaret A. Berger,

Weinstein's Evidence ¶ 702[01] (1992).4 "Stated more directly, the

trial judge ought to insist that a proffered expert bring to the

jury more than the lawyers can offer in argument." Air Crash at

New Orleans, 795 F.2d at 1233. With these considerations in mind,

we conclude that Dr. Greenstone's conclusory assertions regarding

Carpenter's state of mind would not be helpful to a jury, were not

admissible, and cannot be relied upon by plaintiffs to prevent

summary judgment. See Taylor v. Watters, 655 F. Supp. 801, 805

(E.D. Mich. 1987)(holding hostage situation expert's testimony that

officials' conduct was reckless and conscience-shocking

inadmissible).

IV

As sheriff, Carpenter is entitled to qualified immunity from

suit under section 1983 unless it is shown by specific allegations

that he violated clearly established constitutional law. Anderson

v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987);

Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738

(1982). The qualified immunity determination requires a two step
12

analysis. First, in reviewing a denial of qualified immunity, we

determine whether plaintiffs have stated a violation of rights

secured by the Constitution. Duckett v. City of Cedar Park, 950

F.2d 272, 278 (5th Cir. 1992). Since qualified immunity turns on

whether a defendant violated a clearly established right, a

"necessary concomitant" to that decision is determining "whether

the plaintiff has asserted a violation of a constitutional right at

all." Siegert v. Gilley, 111 S. Ct. 1789, 1793 (1991). If

plaintiffs cross this threshold, we next examine the objective

reasonableness of the defendant official's conduct. Pfannsteil v.

City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990); see also

Creighton, 483 U.S. at 641, 107 S. Ct. at 3040.

In this circuit, the qualified immunity defense involves a

shifting burden of proof. Although we sometimes short-handedly

refer to only one party's burden, the law is that both bear a

burden. The defendant official must initially plead his good faith

and establish that he was acting within the scope of his

discretionary authority. Saldana v. Garza, 684 F.2d 1159, 1163

(5th Cir. 1982), cert. denied, 460 U.S. 1012 (1983). Once the

defendant has done so, the burden shifts to the plaintiff to rebut

this defense by establishing that the official's allegedly wrongful

conduct violated clearly established law. Id.; Whatley v. Philo,

817 F.2d 19, 20 (5th Cir. 1987); United States v. Burzynski Cancer

Research Inst., 819 F.2d 1301, 1310 (5th Cir. 1987), cert. denied,

484 U.S. 1065 (1988). The Fifth Circuit does not require that an

official demonstrate that he did not violate clearly established
13

federal rights; our precedent places that burden upon plaintiffs.

In this case, Carpenter has claimed qualified immunity and

established that he acted within his authority as sheriff. If

plaintiffs have stated valid claims, they bear the burden of

demonstrating that Carpenter's actions violated clearly established

law.

A

Hermosillo was shot and killed by Cabano. Despite plaintiffs'

efforts at "artful pleading," see Daniels v. Williams, 474 U.S.

327, 334, 106 S. Ct. 662, 666 (1986), they have failed to allege a

state deprivation of rights secured by the Fourteenth Amendment.

Recent Supreme Court decisions applying the due process clause to

unintentional injuries lead us to this conclusion.

The due process clause is not implicated by a negligent act of

an official which causes unintended loss of or injury to life,

liberty, or property. Daniels v. Williams, 474 U.S. 327, 106 S.

Ct. 662, 663 (1986). The focus is on the Fourteenth Amendment's

curb of deliberate abuses of governmental power. The Supreme Court

has rejected the notion that an abuse of governmental power is a

distinct and necessary element of § 1983 claims. See Collins v.

City of Harker Heights, 112 S. Ct. 1061, 1065 (1992). Even so, the

arbitrary and abusive character of state action is relevant to

determining whether a constitutional violation has occurred. See

id.; Daniels, 474 U.S. at 331-332, 106 S. Ct. at 665. The

Constitution does not supplant traditional tort law by creating

liability for commonplace injuries, indeed finding a constitutional
14

claim from such facts trivializes due process. Daniels, 474 U.S.

at 332, 106 S. Ct. at 665.

The court applied Daniels in its companion case, Davidson v.

Cannon, 474 U.S. 344, 106 S. Ct. 668 (1986). In Davidson,

defendant prison officials negligently failed to protect the

plaintiff after learning that he had been threatened by another

prisoner, who later assaulted him. The Court held that the

plaintiff did not have a due process claim.

Far from abusing governmental power, or employing it as

an instrument of oppression, [an official] mistakenly

believed that the situation was not particularly serious,

. . . . The guarantee of due process has never been

understood to mean that the State must guarantee due care

on the part of its officials.

Id. at 348, 106 S. Ct. at 670.

Three years later, the Court addressed whether substantive due

process requires a state to protect persons from private violence.

DeShaney v. Winnebago Cty. Dep't of Social Services, 489 U.S. 189,

109 S. Ct. 998 (1989), held that "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, 109 S. Ct. at

1004. State officials had many indications that a child's father

was abusing him, and had even taken temporary custody of him while

investigating. The father later severely injured the child. The

Court concluded that the officials' failure to prevent this injury

did not deny due process. The Constitution imposes no duty on

states to provide protective services or otherwise prevent violence

by private actors. Id. Even assuming that the state was aware of

the danger the father posed, no duty arose because "it played no
 

5The Court's resistance to efforts to constitutionalize tort

law was again demonstrated in Collins v. City of Harker Heights,

112 S. Ct. 1061 (1992). The Court rejected the assertion that a

government employer's failure to adequately train or warn its

employee of known dangers constituted a due process violation. 

It found that the city's alleged conduct was not "arbitrary, or

conscience-shocking, in a constitutional sense." Rather,

"[p]etitioner's claim is analogous to a fairly typical state law

tort claim." Id. at 1070.

15

part in their creation, nor did it do anything to render him any

more vulnerable to them." Id. at 201, 109 S. Ct. at 1006. Since

no duty to act existed, the failure to act did not violate the

Constitution. Id. at 202, 109 S. Ct. at 1007.5

Although in each of these cases, the Court refused to find a

constitutional violation, their principles allow room for some due

process claims based on unintentional injuries to protected rights.

If the state actor has a requisite mental state, a due process

deprivation could occur under two sets of circumstances. First, a

procedural or substantive due process violation could occur if a

state official causes injury by arbitrarily abusing governmental

power. Second, a substantive due process violation could occur if

uncommon circumstances create a duty for the state to protect a

particular person.

Neither Daniels, Davidson, nor DeShaney involved intentional

injury to protected rights. In each case, it was negligent conduct

which allegedly caused harm. The Court has not decided "whether

something less than intentional conduct, such as recklessness or

'gross negligence,' is enough to trigger the protections of the Due

Process Clause." Daniels, 474 U.S. at 334 n.3, 106 S. Ct. at 666

n.3; see also DeShaney, 489 U.S. at 202 n.10, 109 S. Ct. at 1007
 

6Other circuits are divided on the question of whether gross

negligence is sufficiently different from negligence to justify

basing a deprivation on such conduct. Compare Taylor v.

Ledbetter, 818 F.2d 791, 793 (11th Cir. 1987)(en banc)(holding

pro), cert. denied, 489 U.S. 1065 (1989) and Vinson v. Campbell

Cty. Fiscal Court, 820 F.2d 194, 199-200 (6th Cir. 1987)(accord)

with Archie v. City of Racine, 847 F.2d 1211, 1219-20 (7th Cir.

1988)(en banc) (holding con), cert. denied, 109 S. Ct. 1338

(1989) and Myers v. Morris, 810 F.2d 1437, 1468 (8th

Cir.)(accord), cert. denied, 484 U.S. 828 (1987).

16

n.10. We have held that a constitutional deprivation can result

from "tortious conduct exceeding mere negligence but not quite

rising to the level of intentional, e.g., deliberate (or conscious)

indifference, recklessness, or gross negligence." Doe v. Taylor

Ind. School Dist., 975 F.2d 137, 142 (5th Cir. 1992); see also

Lopez v. Houston Ind. School Dist., 817 F.2d 351, 355 (5th Cir.

1987).6

Daniels and Davidson demonstrate that negligent conduct does

not implicate the due process clause. Nonetheless, unintentional

conduct more culpable than negligence may deny due process. The

Seventh Circuit has held, and we are not inclined to disagree, that

officials who arbitrarily prevent the rescue of persons in known

danger deny due process if they act with the requisite mental

state. This would be the sort of abuse of governmental authority

not found in Daniels or Davidson, but like the paradigmatic claim

found in dicta in Jackson v. City of Joliet, 715 F.2d 1200 (7th

Cir. 1983), cert. denied, 465 U.S. 1049 (1984). A police officer

failed to discover that a burning car contained accident victims,

and directed traffic away from the vehicle. The Jackson court

stated that
17

if officer Taylor, knowing the car was occupied and

wanting the occupants to be burned to death, directed

traffic away from the scene in order to prevent any

passing driver from saving them, he would be liable under

section 1983 for having under color of the city ordinance

making him a public officer deprived the plaintiffs'

decedents of their lives without due process of law.

Id. at 1202. In that hypothetical case, an abuse of governmental

power occurs, because it is the authority vested in the officer by

the state which allows him to prevent any effort to rescue the

endangered person.

Holding that recklessness would proxy intent, the Seventh

Circuit found a due process violation on facts similar to its

hypothetical. Ross v. United States, 910 F.2d 1422, 1433 (7th Cir.

1990). In Ross, a twelve-year-old boy fell into Lake Michigan.

Several minutes after he submerged, civilians, fire fighters, and

a police officer reached the scene and desired to attempt a rescue.

Before they could do so, however, a deputy sheriff on lake patrol

arrived and barred anyone from entering the lake. He asserted a

county policy that only fire department divers were to engage in

rescues, and threatened to arrest anyone else who tried. Id. at

1424-25. The court held that the deputy committed a constitutional

tort by interfering with private rescue efforts to save the child.

The deputy acted recklessly, because he knew that the child had

been submerged for several minutes and could die at any moment if

not rescued immediately. Thus, the deputy violated the child's
 

7See also Justice Brennan's dissent in DeShaney: "[I]f a

State cuts off private sources of aid and then refuses aid

itself, it cannot wash its hands of the harm that results from

its inaction." 109 S. Ct. at 1009 (Brennan, J., dissenting).

18

constitutional rights by "cutting off private avenues of lifesaving

rescue without providing an alternative." Id. at 1432.7

We are not persuaded that the facts of this case present a

similar constitutional violation. Carpenter did not cut off all

avenues of rescue for Hermosillo without providing an alternative.

Even accepting plaintiffs' inferences regarding Carpenter's mental

state, they have failed to show an abuse of power implicating the

Fourteenth Amendment. Although Carpenter dismissed the Fort Worth

police officers, sheriff's deputies were at the same time securing

the courthouse and commencing negotiations with Cabano. The fact

that sheriff's deputies were ultimately unable to prevent Cabano

from killing Hermosillo does not mean that they were not a

"meaningful" source of protection for Hermosillo. See id. at 1431

(county policy cut off rescue source without "meaningful

alternative"). Because of the deputy's conduct in Ross, no effort

was made to rescue a drowning boy for thirty minutes. In contrast,

at the time Carpenter dismissed the police his deputies were

present and negotiating with Cabano. Carpenter did not use his

authority as a state officer to prevent any rescue, rather he

exercised his authority to replace one rescue effort with another.

These facts resemble Andrews v. Wilkins, 934 F.2d 1267 (D.C.

Cir. 1991), because in neither case did officials use their

authority to cut off a private rescue effort. In Andrews, a man
19

fleeing from arrest for a misdemeanor tried to swim across a river

channel. While in the channel he became unconscious, so police on

shore hailed a private boat and directed it to him. Seeing that he

was unable to reach a life jacket, the boaters intended to enter

the water to rescue him, but police directed them not to, saying

that the man was an escapee who might be dangerous. Id. at 1269.

The court declined to consider this as reckless interference with

a private rescue effort, noting that "rather than using their

authority to interfere in a private rescue, the police officers

used their authority to involve the [boaters] in the police rescue

efforts." Id. at 1271. The officers did not cut off a private

avenue of rescue, but controlled the conduct of a police rescue,

considering factors such as the safety of those involved. In that

way, they, like Carpenter, did not abuse their governmental power.

DeShaney makes it plain that the state's failure to protect a

person can amount to a deprivation only if the state had a duty to

act. DeShaney recognized, however that some settings create a

special relationship between the state and a person, imposing a

duty to protect the person. 109 S. Ct. at 1004-05. A substantive

due process right to protective services exists when the state

holds persons in custody or similarly limits their ability to care

for themselves. Doe v. Taylor Ind. School Dist., 975 F.2d 137, 146

(5th Cir. 1992). Generally, the absence of a special relationship

defeats any due process claim based upon a failure to provide

protective services. See also Jackson v. Byrne, 738 F.2d 1443,

1447 (7th Cir. 1984); Handley v. City of Seagoville, 798 F. Supp.
 

8"If the state puts a man in a position of danger from

private persons and then fails to protect him, it will not be

heard to say that its role was merely passive; it is as much an

active tortfeasor as if it had thrown him into a snake pit." 

Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982).

20

1267, 1272 (N.D. Tex. 1992) (Sanders, C.J.). Hermosillo was not

held in state custody or otherwise prevented by the state from

caring for herself. This was a failed rescue effort.

Courts have found a denial of due process when the state

creates the faced dangers. Gregory v. City of Rogers, 974 F.2d

1006, 1010 (8th Cir. 1992)(en banc); see also L.W. v. Grubbs, 974

F.2d 119, 121 (9th Cir. 1992); Wood v. Ostrander, 879 F.2d 583 (9th

Cir. 1989), cert. denied, 111 S. Ct. 341 (1990); White v. Rochford,

592 F.2d 381 (7th Cir. 1979).8 Plaintiffs must urge an expansion

of this rule, for no reasonable jury could find that Carpenter

created the danger that Cabano would kill Hermosillo. Cf. Gregory,

974 F.2d at 1012 (officer did not create danger that drunks would

drive car by leaving them unsupervised while dealing with driver

inside station). Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990),

held that a claim may exist when officials increase a person's

vulnerability to private violence by interfering with protective

services which otherwise would be available. Id. at 54. Seeds for

such an expansion are arguably found in DeShaney, where the Court

stated that no duty to protect the plaintiff from free world

dangers arose because the state "played no part in their creation,

nor did it do anything to render him any more vulnerable to them."

109 S. Ct. at 1006 (emphasis added). The Eighth Circuit concluded

that
21

a constitutional duty to protect an individual against

private violence may exist in a non-custodial setting if

the state has taken affirmative action which increases

the individual's danger of, or vulnerability to, such

violence beyond the level it would have been at absent

state action.

Freeman, 911 F.2d at 55.

Had Carpenter not acted, plaintiffs contend, the police

department would have provided a better equipped and more

experienced force to handle the hostage negotiations and possibly

to conduct a dynamic entry to rescue Hermosillo. Thus, Carpenter

allegedly acted in a way which left Hermosillo, unlike Joshua

DeShaney, in a worse position than if the state official had never

been involved.

We are not persuaded, however, that Carpenter increased

Hermosillo's vulnerability to danger in the sense envisioned by the

Court in DeShaney. Nor do we agree that this case is governed by

Rochford and Wood. In Wood, for example, a trooper arrested a

driver and abandoned the female passenger in a high crime area in

the middle of the night, creating the danger that she would be

assaulted. 879 F.2d at 590. Police in Rochford arrested a driver

and left children unattended on a highway. 592 F.2d at 382. In

Grubbs, the state placed a nurse in danger by assigning her to work

alone with a dangerous inmate and failing to warn her that she

would be exposed to sex offenders. 974 F.2d at 120. In each of

these cases, officials failed to take any action to alleviate the

danger which they created or aggravated. Carpenter, on the other

hand, did not worsen Hermosillo's position and abandon her to allow

events to run their course. The sheriff continued at all times to
 

9We do not decide whether such a claim can properly be

brought against Carpenter in his individual capacity, the

capacity for which he seeks qualified immunity. Because of our

resolution of the claim, we may assume arguendo that it can be.

22

supervise a law enforcement effort to secure her safe release. We

decline to hold that this conduct shocks the conscience or is

otherwise a deprivation of due process. See Rochford, 592 F.2d at

383; Rochin v. California, 342 U.S. 165, 172, 72 S. Ct. 205, 209

(1952).

The Fourteenth Amendment does not require Carpenter to train

and equip members of the sheriff's department for special SWAT or

hostage negotiation duties.9 The Constitution does not provide a

right to protective services such as ambulance service, Archie v.

City of Racine, 847 F.2d 1211, 1220 (7th Cir. 1988) (en banc),

cert. denied, 489 U.S. 1065 (1989), or fire-fighting equipment,

Jackson v. Byrne, 738 F.2d 1443, 1448 (7th Cir. 1984). It does not

mandate that law enforcement agencies maintain equipment useful in

all foreseeable situations. With no constitutional duty to provide

SWAT or hostage negotiation equipment, Carpenter's failure to do so

does not deny due process. See DeShaney, 109 S. Ct. at 1007.

Plaintiffs argue that City of Canton v. Harris, 109 S. Ct.

1197 (1989), supports their claim that police who undertake to

handle a hostage situation must be adequately trained. In Harris,

however, the city's policy allegedly prevented a prisoner from

receiving medical treatment which the city had a duty to provide.

As an initial matter, this case does not involve municipal

liability. Moreover, we do not read Harris to adopt for
23

constitutional law the tort principle that if police undertake to

perform a service not mandated by the Constitution, then adequate

training for the conduct of that service would be constitutionally

required. As the court noted in Andrews v. Wilkins, 934 F.2d 1267

(D.C. Cir. 1991), it would be anomalous to impose liability for

failing in an effort not required by the Constitution. Id. at

1270. Cf. Jackson v. City of Joliet, 715 F.2d 1200 (7th Cir.

1983)(§ 1983 claim may not be based on negligence of police who

respond to an accident); Jackson v. Byrne, 738 F.2d 1443, 1447 (7th

Cir. 1984)(city did not acquire constitutional duty to provide fire

protection by once providing such services). Such a rule would

create perverse incentives, discouraging police encountering

unanticipated situations from responding.

B

In addition to concluding that plaintiffs have failed to state

a constitutional claim, we find that Carpenter was otherwise

entitled to qualified immunity. Even if a official's conduct

violates a constitutional right, he is entitled to qualified

immunity if the conduct was objectively reasonable. Pfannstiel v.

City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990). The objective

reasonableness of allegedly illegal conduct is assessed in light of

the legal rules clearly established at the time it was taken.

Creighton, 483 U.S. at 639, 107 S. Ct. at 3038. A right will be

considered clearly established only when its contours are

sufficiently clear so that a reasonable official would understand

that what he is doing violates that right. Id. at 640, 107 S. Ct.
24

at 3039; White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992). "This

is not to say that an official action is protected by qualified

immunity unless the very action in question has previously been

held unlawful, but it is to say that in light of pre-existing law

the unlawfulness must be apparent." Creighton, 483 U.S. at 640,

107 S. Ct. at 3039 (citation omitted). On appeal from an order

denying summary judgment based on qualified immunity, plaintiffs

have the burden to come forward with evidence sufficient to create

a genuine issue as to whether the defendant's conduct was

objectively unreasonable in light of clearly established law.

Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir. 1990).

"If reasonable public officials could differ on the lawfulness of

the defendant's actions, the defendant is entitled to immunity."

White, 959 F.2d at 544.

We are not persuaded that the contours of the law in this area

were well defined in August of 1989. Even today, it remains

uncertain whether officials who cause harm by gross negligence can

violate the due process clause. See supra at notes 7-8.

Reasonable officials may disagree over when a duty to protect

private citizens arises. See Freeman v. Ferguson, 911 F.2d 52, 55

(8th Cir. 1990)("the law is not entirely established as to the

extent to which the government must increase the danger of private

violence before it assumes a corresponding duty to protect"). On

the other hand, the Ninth Circuit held that it was clearly

established in 1984 that a police officer's deliberate

indifference, which enhances an individual's risk of being harmed
25

by a private actor, violates due process. Wood v. Ostrander, 879

F.2d 583 (9th Cir. 1989), cert. denied, 111 S. Ct. 341 (1990).

Plaintiffs have failed, however, to carry their burden of showing

that Carpenter acted with deliberate indifference. The facts here

are a far cry from those in Ross, where the deputy knew that the

submerged child faced an almost certain risk of drowning if not

immediately rescued. The only admissible evidence with which

plaintiffs would demonstrate a culpable mental state are

Carpenter's public statements following the tragedy. These

statements are not probative of deliberate indifference or reckless

disregard for a recognized danger. In fact, Carpenter's statement

that he continued to believe that a SWAT team had not been

necessary to handle the crisis tends to show that he did not

recognize a danger resulting from the dismissal of that team. And,

as we explained, the conclusory allegations of Dr. Greenstone's

affidavit may not be relied upon to create a genuine issue of fact

precluding summary judgment.

Moreover, as Creighton demonstrates, the reasonableness of an

official's conduct must be judged according to the uncertainty of

the facts known, as well as the certainty of the law. 483 U.S. at

641, 107 S. Ct. at 3040 (determining objective reasonableness of

conduct "will often require examination of the information

possessed" by officials). Qualified immunity will be granted if a

reasonable official would be left uncertain of the law's

application to the facts confronting him. Hopkins v. Stice, 916

F.2d 1029, 1031 (5th Cir. 1990). On this basis, Carpenter is
26

entitled to qualified immunity. While it should be clear to police

officials that they cannot "arbitrarily assert [their] power so as

to cut short a person's life," Ross, 910 F.2d at 1433, it would not

have been apparent to a reasonable official that relying solely

upon sheriff's department personnel would result in Hermosillo's

death. Plaintiffs' expert, Dr. Greenstone, testified regarding

what actions are best taken or avoided during a hostage situation.

An objective official's possession of this knowledge, however, does

not equate with knowledge that failure to follow such procedures

will probably result in the death of the hostage. Carpenter

attempted to negotiate Hermosillo's release with inexperienced

deputies and untrained civilians. While this course of action may

have been imprudent, even reckless, we are not persuaded that a

reasonable official would recognize that it was contrary to law.

An important policy behind qualified immunity is to prevent

litigation which "will unduly inhibit officials in the discharge of

their duties." Creighton, 483 U.S. at 638, 107 S. Ct. at 3038.

Second-guessing the decision of law enforcement officers regarding

the choice of police personnel in a crisis would undermine that

policy. Lawsuits alleging that police should have acted one way or

another in response to a hostage situation "pose[] a no-win

situation for the police and do[] nothing to encourage law

enforcement or a respect for constitutional rights." Taylor v.

Watters, 655 F. Supp. 801, 807 (W.D. Mich. 1987).
27

We do not say that this crisis was properly handled or that

Sheriff Carpenter made no mistakes. We say only that there was no

denial of Juanita Hermosillo's constitutional rights.

V

We REVERSE the district court's denial of his motion to

dismiss and for summary judgment.