from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 17 C 6111 - Amy
J. St. Eve, Judge.
EASTERBROOK, KANNE, and BRENNAN, Circuit Judges.
EASTERBROOK, CIRCUIT JUDGE.
Salters, a pretrial detainee in Kane County, Illinois,
swallowed some cleaning fluid, apparently in an effort to
commit suicide. He was taken to Delnor Community Hospital for
treatment. Guards were instructed to keep him shackled. Shawn
Loomis, one of those guards, disobeyed that order when
Salters claimed that he needed to use the bathroom. Salters
grabbed Loomis's gun and escaped. While Salters
terrorized the Hospital's staff, patients, and visitors,
Loomis ran away and hid. Salters took nurses hostage at
gunpoint and assaulted two of them. After three hours a SWAT
team cornered Salters and killed him. This appeal arises from
claims under 42 U.S.C. §1983 by two persons at the
Hospital who were frightened but not physically injured.
(Other claims have been settled.)
defendants in the suit include Loomis, Kane County (which
employed Loomis as a correctional officer), Delnor Hospital,
and Apex3 Security, LLC, which the Hospital hired to provide
security for its premises. The appeal, however, concerns only
Loomis, who moved to dismiss the complaint on the ground of
qualified immunity. A public employee is entitled to immunity
in §1983 litigation unless, at the time of the events in
question, "clearly established" law would have made
apparent to any public employee that his or her acts violated
the Constitution. See, e.g., Escondido v. Emmons,
139 S.Ct. 500 (2019). Loomis argued that it had not been (and
still is not) clearly established that permitting a prisoner
to escape violates the Constitution. He relied principally on
DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989), which holds that the
Constitution, as a charter of negative liberties, does not
require the government to protect the public from private
predators-and it was Salters, not Loomis, who inflicted
district judge first held that the complaint presents a valid
claim for liability under what has come to be called the
"state-created danger exception" to DeShaney.
Does I-IV v. Kane County, 308 F.Supp. 3d 960');">308 F.Supp. 3d 960, 967-71
(N.D. Ill. 2018). Under this doctrine, the judge wrote, a
public employee is liable for increasing the danger to which
other persons are exposed. Loomis did not create danger by
transferring Salters to the Hospital; that decision was made
by others. So too was the decision that Loomis carry a weapon
in a situation that posed a risk if he lost control of his
sidearm. But Loomis did increase the danger by removing
Salters from his shackles, negligently permitting him to get
the gun, and running away. Plaintiffs do not allege that
Loomis intended harm to the Hospital's staff,
patients, and visitors-he appears, instead, to be a feckless
coward-but the district judge thought that negligence leading
to bystanders' danger could support liability. Then, and
for essentially the same reasons, the judge rejected
Loomis's immunity defense. Id. at 971-73. The
"state-created danger exception" is established in
the Seventh Circuit, the judge observed, and it should have
been obvious to any guard that armed prisoners must not be
turned loose in hospitals. That was enough, the judge wrote,
to make the right "clearly established."
problem with this reasoning is that it starts and ends at a
high level of generality. The "state-created danger
exception" to DeShaney does not tell any public
employee what to do, or avoid, in any situation. It is a
principle, not a rule. And it is a principle of liability,
not a doctrine (either a standard or a rule) concerning
primary conduct. For that one must look elsewhere, but the
district judge did not do so. Nor have the plaintiffs.
decisions of this circuit, the district court understood the
"state-created danger exception" to
DeShaney as equivalent to a constitutional rule
prohibiting any act, by any public official, that increases
private danger. If that were so, however, then
DeShaney itself is wrongly decided. Joshua DeShaney
was removed from his father's custody and hospitalized as
a result of injuries. Joshua's stepmother reported that
Randy DeShaney, Joshua's father, regularly abused him
physically. After deliberation, state child-welfare officials
decided to return Joshua to his father. Randy then beat and
permanently injured Joshua. No one could have doubted that
the child-welfare officials' decision increased
Joshua's danger, compared with his safety in the
hospital-indeed, that increase was the foundation of his
claim for damages- but the Supreme Court nonetheless held
that the Due Process Clause of the Fourteenth Amendment does
not require a state to protect its residents from private
violence. Other courts cannot create an "exception"
to DeShaney that contradicts this principle, and as
a result we cannot treat the "state-created danger
exception" as a rule of primary conduct forbidding any
acts by public officials that increase private dangers. (We
have a few words toward the end of this opinion about what
the "exception" might mean.)
and over, the Supreme Court has held that a right is
"clearly established" only if it has been
"defined with specificity." Escondido, 139
S.Ct. at 503. See also, e.g., Kisela v. Hughes, 138
S.Ct. 1148,1152-53 (2018); District of Columbia v.
Wesby, 138 S.Ct. 577, 590 (2018); White v.
Pauly, 137 S.Ct. 548, 552 (2017); San Francisco v.
Sheehan, 135 S.Ct. 1765, 1775-76 (2015); Mullenix v.
Luna, 136 S.Ct. 305, 308 (2005); Carroll v.
Carman, 574 U.S. 13,16-17 (2014); Wood v. Moss,
572 U.S. 744, 757-58 (2014); Plumhoff v. Richard,
572 U.S. 765, 778-79 (2014); Stanton v. Sims, 571
U.S. 3, 5-6 (2013); Reichle v. Howards, 566 U.S.
658, 664 (2012); Brosseau v. Haugen, 543 U.S. 194,
198 (2004). These decisions, and more, tell us that a high
level of generality won't do.
district judge resisted the conclusion that
"state-created danger" is too general by observing
that Loomis's proposal-something like a case establishing
how guards must prevent being overpowered by prisoners in
hospitals during bathroom breaks-would be too particular. 308
F.Supp. 3d at 972. By insisting on a case identical to the
one at hand, public employees could insulate themselves from
liability, for every case differs in some respect
from its predecessors. We agree with the district judge that
a search for identity is not required and would be a
fool's errand. A principle can be clearly established
without matching a later case's facts. The search is for
an appropriate level of generality, not the most
particular conceivable level. And the level of generality is
appropriate when it establishes the rule in a way that tells
a public employee what the Constitution requires in the
situation that employee faces. See, e.g., Mullenix,
136 S.Ct. at 308-09 (citing other cases).
this possible rule: "The Constitution (through the Due
Process Clause) requires guards to prevent prisoners from
escaping." Loomis had to know that keeping Salters under
control was his responsibility as a matter of Illinois law
and his employer's instructions; this hypothetical rule
would have told him that the Constitution, too, requires
this. It would not be necessary for the rule to say anything
about hospitals, or toilets, or how strong a prisoner may be.
But this is only a hypothetical, because other litigants have
argued that the Constitution requires guards to prevent
escapes, and every appellate court that has considered the
possibility has rejected it as incompatible with
DeShaney. See, e.g., Rios v. Del Rio, 444
F.3d 417 (5th Cir. 2006); Davis v. Fulton County, 90
F.3d 1346 (8th Cir. 1996). See also Commonwealth Bank
& Trust Co. v. Russell, 825 F.2d 12 (3d Cir. 1987)
(same outcome before DeShaney). It is not possible
to say that a constitutional obligation to keep a prisoner
under control has been "clearly established" when
every appellate court that has addressed the question has
held that the proposed obligation does not exist.
"clearly established" law does not support the
§1983 claim against Loomis, we need not decide whether
we agree with these decisions. See Pearson v.
Callahan, 555 U.S. 223, 231-43 (2009). But it is apt to
add that we also have not approved the district court's
view that the complaint states a good constitutional claim.
Plaintiffs allege that Loomis was incompetent, but the Due
Process Clause generally does not condemn official
negligence. See Daniels v. Williams, 474 U.S. 327
(1986). Plaintiffs depict themselves as frightened but not
otherwise injured, and, even in the law of torts, negligent
actors are not liable for conduct that threatens bodily harm
but produces only emotional distress. Restatement
(Second) of Torts §436A (1965). And then there is
recent years the "state-created danger exception"
has been treated as if it were a rule of common law. It has
been elaborated and turned ...