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Click here for the full text of this decision The plaintiffs failed to identify either a policy or custom of the HISD Board of Trustees that created an opportunity that would not otherwise have existed for the student’s killing. FACTS:The parents of a stabbing victim at a middle school brought this �1983 action alleging the school district violated their son’s due process rights by creating the danger that led to his death. The district court granted summary judgment in favor of the defendants. HOLDING:Affirmed. Houston Independent School District’s board of trustees is the one and only policymaker for HISD. Several circuit courts have recognized that when state actors knowingly place a person in danger, the due process clause renders them accountable for the foreseeable injuries resulting from their conduct. This court has never recognized state-created danger as a trigger of state affirmative duties under the due process clause. The court again declines to do so. Even if the court reviewed this case under the state-created danger theory, it would fail. The basic requirements of the state-created danger theory are: “First, a plaintiff must show that the state actors increased the danger to [him]. Second, a plaintiff must show that the state actors acted with deliberate indifference.” Piotrowski v. City of Houston, 237 F.3d 567 (5th Cir. 2001). The “key to the state-created danger cases . . . [is] the state actors culpable knowledge and conduct in affirmatively placing an individual in a position of danger, effectively stripping the person of [his] ability to defend [him]self, or cutting off potential sources of private aid.” Johnson v. Dallas Ind. School Dist., 38 F.3d 198 (5th Cir. 1994). “[T]o be liable, they must have used their authority to create an opportunity that would not otherwise have existed for the third party’s crime to occur.” Rather than pointing to an annunciated board policy that was the “moving force” behind the alleged due process violation, the parents argue the board established a custom of tolerating gang activity such that it constituted official board policy, and this custom increased the danger to their son. However, even if such a custom existed, there is no evidence showing the board had actual or constructive knowledge of its existence. Taking the parents’ evidence that certain teachers did not adequately respond to “rule infractions involving gang activity” or the wearing of “gang wear” as true, it only demonstrates that those teachers were acting in violation of board policy designed to combat gang activities. There is no evidence that the board knew of this behavior or condoned it. In fact, its official policies of providing school security and encouraging teachers and students to report gang activity through the GEAR program and tip line suggest a policy that was, at minimum, antagonistic to gang-related activity. Furthermore, even if the parents could show that the board was not assiduous at fighting gang activity, this does not demonstrate that it was “deliberately indifferent” to the danger that gang activity might have posed to Avila. Nor does it show that the board affirmatively placed Avila in a position of danger, namely in the situation where Estanislao Balderas (Avila’s killer) was a greater threat to him than he would have been otherwise. James S. Deady Middle School is in a neighborhood where gang activity has existed for years. The board had policies designed to combat those activities as they may have existed at Deady and other schools, and to hold HISD responsible for the ultimate ineffectiveness of those policies would turn the due process clause’s limited duty of care and protection into a guarantee of shelter from private violence. This result would be inimical to the Supreme Court’s conclusion that the due process clause does not require the state to protect individuals from private violence. The parents failed to identify either a policy or custom of the HISD board of trustees that “created an opportunity that would not otherwise have existed” for Avila’s killing. OPINION:Garza, J.

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