UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-40902

JOSE ARMANDO SAENZ, et al.,

Plaintiffs-Appellants,

v.

HELDENFELS BROTHERS, INC; et al.,

Defendants,

BROOKS COUNTY; BETO GONZALEZ, Brooks County Deputy Sheriff

,

Defendants-Appellees.

Appeals from the United States District Court

for the Southern District of Texas

July 30, 1999

Before JONES, DUHÉ, and BARKSDALE, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellants are the estates and surviving family members

of Graciela Saenz and Jose Hinojosa, who were killed when Jose

Hilario Zuniga, a drunk driver, struck their auto mobile.

Appellants sued under 42 U.S.C. § 1983, alleging that (1) Deputy

Sheriff Beto Gonzalez abused his governmental authority by ordering

his partner, Reserve Deputy Antonio Martinez, to refrain from

investigating Zuniga for drunken driving minutes before the

accident occurred; and (2) Brooks County had a custom or policy

tolerating Gonzalez’s refusal to enforce drunk driving laws. We1 Martinez also testified that Gonza lez said “he’s always

drinking so I have stopped him several times so I know he’s

drinking or he’s drunk.”

2 At this point, the officers had no concrete evidence that

Zuniga was intoxicated. According to Martinez, he suspected that

Zuniga was drunk because Gonzalez stated that Zuniga was often

drunk, Zuniga stood at the sto p sign for an extended period of

time, and Zuniga eventually made a wide right turn.

2 agree with the district court that appellants have not asserted the

deprivation of a right secured by the United States Constitution.

Since this is an appeal from a grant of summary judgment

in favor of Gonzalez and Brooks County, this court reviews the

facts in the light most favorable to the appellants, with all

inferences and fact disputes resolved in their favor. S ee Davidson

v. Glickman

, 169 F.3d 996, 998 (5th Cir. 1999). The facts of this

case, when viewed in such a light, show that on the evening of

June 19, 1995, Deputy Sheriff Gonzalez and Reserve Deputy Martinez

approached the intersection of State Highway 285 and Coun ty Road

210 and pulled behind a red pickup truck standing at a stop sign.

Gonzalez told Martinez that the truck belonged to Zuniga. Because

the truck remained stationary at the stop sign for an extended

time, Martinez suggested that the officers investigate. Gonzalez,

the ranking officer, rejected the idea, telling Martinez that

Zuniga is “always drunk and I always stop the guy. So just leave

him alone.” 1 A discussion ensued between Martinez and Gonzalez.

Martinez, suspecting that Zuniga was drunk, 2 wished to investigate3 Gonzalez apparently ordered, “I’ m telling you don’t do

anything to him because I don’t want him to dirty my car or smell

my car up or . . . throw up in my car.”

4 Th e appellants have argued their theory of liability

ambivalently. At a hearing in the district court, appellants’

counsel st ated that “the ‘state-created danger’ [theory is] the

heart of this case.” At oral arguments before this court, however,

counsel stated that the “abuse of government power” theory is “the

heart and soul of our case.” We address both arguments.

3 Zuniga, but Gonzalez ordered Martinez to leave him alone, 3 uttering

a crude Spani sh imprecation against Zuniga. The two officers

remained be hind Zuniga at the stop sign for approximately 15

minutes and, per Gonzalez’s orders, never investigated the

situation.

A few minutes later , the dispatcher called for the

officers’ assis tance at the scene of an automobile accident.

Zuniga’s truck had crashed into an on coming vehicle, killing two

occupants and injuring three others. Zuniga was also severely

injured. Tests confirmed that Zuniga was intoxicated and had a

blood alcohol level of .21 -- well over the legal limit.

The cornerstone of appellants’ claim is that Gonzalez

abused his governmental authority in violation of the Due Process

Clause by ordering Martinez not to stop Zuniga (even though he was

suspected of being drun k) and by implying that Zuniga could,

roughly translated, “go kill himself.” 4 In addition, appellants

allege that Brooks County had a custom or policy allowing Gonzalez

to interfere with juni or officers’ attempts to arrest drunk

drivers. The district court granted summary judgment in favor of4

Gonzalez, holding that, under DeShaney v. Winnebago County Dep’t of

Soc. Serv.

, 489 U.S. 189, 109 S. Ct. 998 (1989), Gonzalez had no

constitutional duty to protect the appellants’ lives from Zuniga’s

conduct and was therefore entitled to qualified immunity. The

court also held that since the appellants did not allege a

constitutional injury against Gonzalez, their claim against Brooks

County likewise failed. State law claims were severed and

remanded.

DISCUSSION

To prevail on § 19 83 claim against a state official

performing a discretionary function, and to overcome the qualified

immunity defense, a plaintiff must show that the officer violated

“clearly established

. . . constitutional rights of which a

reasona ble person would have known.” H arlow v. Fitzgerald

, 457

U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). The first inquiry is

whether the appellants have alleged the deprivation of a

constitutional right. S ee Conn v. Gabbert

,

__ U.S.

__, __, 119 S.

Ct. 1292, 1295 (1999); County of Sacramento v. Lewis , __ U.S. __,

__ n.5, 118 S. Ct. 1708, 1714 n.5 (1998) (“[T]he better approach to

resolving cases in which the defense of qualified immunity is

raised is to determine first whether the plaintiff has alleged a

deprivation of a constitutional right at all.”). Only if the right

exists do we need to determine whether that right was clearly

established at the time of the alleged violation.5 In this case, appellants have asserted that Gonzalez was

“aware of the danger that Zuniga posed, and by ordering Martinez

not to stop him, rendered the Plaintiffs more vulnerable to that

danger in violation of the 5th and 14th Amendment[s].” They charge

t hat Gonzalez “abused his governmental power” by preventing

Martinez from enforcing the law and by foreseeably placing the

victims in danger because of Zuniga. For several reasons, we

disagree that these allegations state a constitutional claim.

First, neither the text nor the history of the Due Process Clause

supports holding that an officer who orders another officer to

refrain from arresting a suspected drunk driver has committed a

constitutional tort. The Due Process Clause is intended to curb

governmental abuse of power over the people it governs, not to

require state officers to protect the people from each other. S ee

DeShaney

, 489 U.S. at 196, 109 S. Ct. at 1003; Davidson v. Cannon

,

474 U.S. 344, 348, 106 S. Ct. 668, 670 (1986). The guarantee of

due process has been limited to situations where a state officer

d eliberately chooses to deprive a person of life, liberty, or

property. S ee Collins v. City of Harker Heights

, 503 U.S. 115, 127

n.10, 112 S. Ct. 1061, 1069 n. 10 (1992). Gonzalez’s order to

Martinez cannot be characterized as a governmental decision to deny

the appellants their life, liberty, or property

-- especially since

he was never subjectively aware that they were on the highway. A

contrary conclusion would “make of the Fourteenth Amendment a font

of tort law to be superimposed upon whatever systems may already be5 Ross v. United States , 910 F.2d 1422 (7th Cir. 1990).

6 Salas v. Carpenter

, 980 F.2d 299 (5th Cir. 1992 ). A ppellants

also cite Piotrowski v. City of Houston , 51 F.3d 512 (5th Cir.

1995), but this court again refused to adopt a state-created danger

theory in that case.

6 administered by the States.” P aul v. Davis

, 424 U.S. 693, 701, 96

S. Ct. 1155, 1160 (1976).

Second, the appellants have cited n o case extending

substantive due process to situations similar to the facts of this

case. Appellants rely on the holding of Ross 5 and dicta in Salas 6

to support their argument that Gonzalez abused his authority.

Those cases, ho wever, are inapplicable because they state or

suggest that a government officer can be held liable if he knows a

victim faces actual distress but uses his authority to interfere or

prohibit assistance, thereby directly increasing the harm suffered

by the victim. In R oss

, for instance, the Seventh Circuit he l d

that a deputy sheriff committed a constitutional tort by ordering

qualified bystanders not to rescue a drowning boy. S ee 910 F.2d at

1432-33. Unlike the deputy in R oss

, Gonzalez was neither aware of

an immediate danger facing a known victim, nor di d he use his

authority to prevent the appellan ts from receiving aid. This

“state-created danger” theory is inapposite without a known victim.

“The most that can be said of [Gonzalez] in this case is that [he]

stood by and did nothing when suspicious circumstances dictated a

more active role for [him].” D eShaney

, 489 U.S. at 203, 109 S. Ct.

at 1007.7 There is, however, one exception to this rule, not applicable

here: “[W]hen the State takes a person into its custody and holds

him there against his will, the Constitution imposes upon it a

corresponding duty to assume some responsibility for his safety and

7 Third, because of the open-ended nature of su bstantive

due process, the Supreme Court has cautioned federal courts to use

“judicial self-restraint” and “exercise the utmost care” when asked

to find new rights secured by the Due Process Clause. C ollins

, 503

U.S. at 1 25, 112 S. Ct. at 1068. Based on the Supreme Court’s

reticence, we decline to issue the novel ruling that when one

officer exercises his discretion by ordering another officer not to

apprehend a drunk driver, a third party unknown to the officer at

the time of the order who is later injured by the drunk driver has

a constitutional claim against the ordering officer.

Finally, our holding is virtually compelled by the

Supreme Court’s decision in DeShaney

. S ee 489 U.S. at 197, 109 S.

Ct. at 1004. In D eShaney

, the mother of a child abuse victim sued

state social workers under § 1983 because they knew that her child

was at risk but failed to remove him from the father’s home. The

Supreme Court rejected the claim, holding that “a State’s failure

to protect an individual against private violence simply does not

constitute a violation of the Due Process Clause.” I d. The Court

reasoned that while the Due Process Clause limits the State’s power

to take a person’s life, liberty or property without due process of

law, it does not guarantee “certain minimal levels of safety and

security.” 7 Id. 489 U.S. at 195, 109 S. Ct. 1003. If a stategeneral well-being.” D eShaney

, 489 U.S. at 199-200, 109 S. Ct. at

1005.

8 As noted in n.7, s upra

, however, a state officer has

additional liability when the state takes custody of individuals.

8 officer has no duty to protect an identified person from a known

danger presented by a third party, he cannot offend due process by

permitting an intoxicated driver to remain on the highway, thereby

increasing the risk of harmto unidentified and unidentifiable

members of the public. Gonzalez’s decision, while imprudent and

ultimately tragic, was not sufficiently willful and targeted toward

specific harm to remove the case into the domain of constitutional

law. S ee Lewis

,

__ U.S. at

__, 118 S. Ct. at 1716 (“[O]nl y the

most egregious official conduct can be said to be ‘arbitrary in the

constitutional sense’) (quoting Collins

, 503 U.S. at 129, 112 S.

Ct. at 1071).

The appellants attempt to escape D eShaney ’s holding by

describing their argument as an “abuse of governmental authority”

r ather than a constitutional failure to protect. This semantic

dodge will not do. Other than the factually inapplicable statecreated danger cases cited above

-- which reflect a theory that

this court has not yet accepted

-- appellants cite no case, and we

have found none, that upholds such an ephemeral distinction. 8

T he appellants also sued Brooks County under § 1983

,

arguing that it had a custom or policy permitting Gonzalez to

interfere with junior officers’ attempts to a pprehend drunk

drivers. As the district court correctly found, however, “[i]f a9

person has suffered no constitutional injury at the hands of the

indi vidual police officer, the fact that the departmental

regulations might have authorized [his actions] is quite beside the

point.” L os Angeles v. Hel ler , 475 U.S. 796, 799, 106 S. Ct.

1571, 1573 (1986) (per curiam) (emphasis in original); see also

Leatherman v. Tarrant County Narc. Intel. and Coord. Unit

, 28 F.3d

1388, 1398 n.15 (5th Cir. 1994) (stating that a municipality cannot

be liable when the “individual officers have been exonerated of any

underlying constitutional violation").

CONCLUSION

Because the appellants have failed to allege the

deprivation of a constitutional right, their § 1983 claim fails and

Gonzalez is shielded by his qualified immunity. S ee Harlow

, 457

U.S. at 818, 102 S. Ct. at 2738. The county also has no liability.

The judgment of the district court is AFFIRMED

.