May 29, 2019
from the United States District Court for the Eastern
District of Wisconsin. No. 17-CV-1015 - Nancy Joseph,
Kanne, Sykes, and Brennan, Circuit Judges.
afternoon in Wisconsin took a tragic turn when six-year-old
Swannie Her was found unresponsive on the bottom of a
man-made swimming pond operated by the City of West Bend. She
never regained consciousness and died a few days later.
estate, her mother, and her siblings filed suit alleging that
she died as a result of federal constitutional and state-law
violations by the West Bend Parks Director, the seven
lifeguards who were on duty, and the City. The constitutional
claim arises under 42 U.S.C. § 1983 and alleges a
deprivation of life without due process in violation of
rights secured by the Fourteenth Amendment. The theory of the
claim rests on two contentions: (1) the City's swimming
pond is a state-created danger and (2) the defendants acted
or failed to act in a way that increased the danger. A
magistrate judge entered summary judgment for the defendants,
ruling that the evidence is insufficient to permit a
reasonable jury to find a due-process violation premised on a
state-created danger. The judge relinquished jurisdiction
over the state-law claims, setting up this appeal.
affirm. Liability for injury from a state-created danger is
an exception to the general rule that the Due Process Clause
confers no affirmative right to governmental aid.
DeShaney v. Winnebago Cty. Dep't of Soc. Servs.,
489 U.S. 189, 196 (1989). Our caselaw construes this
exception narrowly, and the judge correctly concluded that
this case falls outside its boundaries. No reasonable jury
could find that the defendants created a danger just by
operating a public swimming pond or that they did anything to
increase the danger to Swannie before she drowned. Nor was
their conduct so egregious and culpable that it "shocks
the conscience, " a necessary predicate for a court to
find that an injury from a state-created danger amounts to a
City of West Bend owns and operates Regner Park, a large
public area with several recreational options. During the
summer months, patrons can cool off in the park's
man-made swimming pond for a small fee. Like other bodies of
water with organic floors, the Regner Park pond is murky.
Visibility is limited to roughly six inches below the
surface, and swimmers more than two feet from shore cannot
see the bottom.
pond is divided into three zones: Zone 1, the general
swimming area, ranges in depth up to a maximum of five feet.
Zone 2, which features a diving raft, is the center of the
pond and reaches a depth of fifteen feet. And Zone 3, the
children's play area, is no more than three-feet deep.
Ropes and buoys cordon off the three zones; they also mark
points where the water gets deeper. Swimmers wishing to enter
Zone 2 -or otherwise enter water deeper than their
armpits-must pass a swim test, at which point they receive a
special wristband signifying that they are permitted to do
employed by the City patrol the pond. Each lifeguard is
certified in basic lifeguarding practices and receives
pond-specific instruction. They also receive the West Bend
Aquatic Manual & Emergency Response Plan, a guidebook to
preventing accidents at the pond. Most importantly, the
manual urges lifeguards to keep close watch on inexperienced
swimmers and small children. The parties debate whether those
surveillance responsibilities are "mandatory, " as
the plaintiffs characterize them, or if lifeguards
"[a]re allowed to use their judgment and discretion when
scanning the water to determine where to focus their
attention, " as the defendants maintain.
11, 2016, the Her family-mother Connie, her fiance, and nine
of her ten children-gathered in Regner Park to celebrate a
relative's second birthday. The party took place at a
picnic area near the swimming pond. Young Swannie arrived at
roughly 5 p.m. that afternoon with two of her siblings. After
greeting family and friends, she donned her bathing suit and
obtained her mother's permission to swim in the pond.
Connie did not accompany Swannie but rather asked two of her
older children-Evangelin, age 9, and Thvon, age 14-to keep an
eye on their younger sister. Swannie received a general
admission wristband, but she never took the swim test
required to swim in water above her armpits.
children began swimming in Zone 3. At some point Swannie said
she wanted to go see Ekin, another sibling, in a deeper part
of the pond. No one knows precisely when or where Swannie
went beneath the surface; neither the seven lifeguards on
duty nor any member of the Her family or anyone else at the
pond witnessed it. But at 5:55 p.m. a man swimming in Zone 2
discovered Swannie unresponsive at the bottom of the pond. He
carried her out of the water and called for help. The
lifeguards immediately called 911 and began resuscitation
efforts. Emergency medical responders took Swannie to a
nearby hospital, but she never regained consciousness and
died several days later.
estate, together with Connie and her surviving children
(collectively "the Estate"), filed this lawsuit the
following year. The defendants are Parks Director Craig
Hoeppner, the City and its insurer, and the seven lifeguards
who were on duty that day. The complaint seeks damages under
§ 1983 for violation of Swannie's Fourteenth
Amendment right to due process. The claim rests on the
doctrine of "state-created danger": the Estate
claims that the defendants created and operated a dangerously
murky pond and failed to follow established lifeguarding
rules, increasing ...