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A Sept. 5 ruling by the 5th U.S. Circuit Court of Appeals in a Mississippi case could affect two high-profile Texas cases based on the “state-created danger” theory. Sitting en banc, the 5th Circuit ruled 11-3 in McClendon v. City of Columbia, et al. that a panel of the court erred when it held last year that a police detective wasn’t immune from claims brought by a man who alleged he was shot and blinded by a police informant who got the gun from the detective. In its per curiam opinion, the 5th Circuit said a plaintiff who brings a civil rights claim under 42 U.S.C. 1983 must show that a government official’s culpability is more than mere negligence and that the official acted with deliberate indifference toward the plaintiff. The court also said the fact that six other circuits had recognized the state-created danger theory by July 1993 — when, as alleged, Columbia, Miss., Detective James Carney loaned a gun to Kevin Loftin that Loftin used to shoot Peter McClendon — didn’t make the theory established law in the 5th circuit. The three-judge panel’s July 2001 decision in McClendon that state-created danger is a viable theory in the 5th Circuit appeared to strengthen a case in the Rio Grande Valley. Plaintiffs’ lawyers won a $35 million jury verdict in February 2002 by arguing the legal theory in a suit brought by families of two slain U.S. Border Patrol agents and a Cameron County sheriff’s deputy. All three allegedly were shot in 1998 by a Harlingen police detective’s son, armed with an assault rifle that a citizen turned over to police for destruction. That case, Salinas, et al. v. City of Harlingen, is pending in the U.S. District Court in Brownsville. U.S. District Judge Hilda Tagle has yet to enter a final judgment in the case. State-created danger also is the basis for federal suits brought against Texas A&M University and university officials by the families of students killed or injured in the 1999 bonfire collapse. U.S. District Judge Samuel B. Kent of Galveston dismissed Breen v. Texas A&M University, et al. and five other suits in July on the ground that governmental immunity protects the university from liability for the deaths and injuries caused when the bonfire collapsed. A notice that Kent’s ruling will be appealed has been filed with the 5th Circuit, says Steven DeWolf, attorney for four plaintiffs who filed federal suits against Texas A&M and others in the wake of the bonfire tragedy. DeWolf, a partner in Dallas’ Bellinger & DeWolf, says McClendon further “muddies the waters” on state-created danger in the 5th Circuit, which covers Texas, Louisiana and Mississippi. “I think it sets a dramatic stage for our appeal,” DeWolf says. While the 5th Circuit majority held in McClendon that state-created danger was not established law in the circuit in 1993, DeWolf says, there have been “boodles of cases” post-1993 to 1999, when the bonfire collapsed. The Texas office of the attorney general represents the university and A&M officials in the suits but declines comment on the 5th Circuit’s ruling in McClendon, says spokesman Mike Viesca. Filing such claims under � 1983 offers plaintiffs a chance for larger monetary awards than they can receive under state law. Texas Civil Practices and Remedies Code � 104.003(a)(1) limits damages to $300,000 per occurrence, but there is no damages cap on � 1983 claims under the 14th Amendment. DOOR OPEN? Legal experts say the ruling will make it more difficult for plaintiffs to be successful in bringing � 1983 claims involving state-created danger. “It’s a bad day for plaintiffs who are trying to sue on this state-created danger theory,” says T. Gerald Treece, associate dean and a civil rights expert at South Texas College of Law. Treece says the 5th Circuit essentially is “slam dunking” the theory in the circuit, making it harder to hold a governmental entity liable for civil rights violations based on injuries caused by a third party. Ed Sherman, a Tulane Law School professor who teaches civil rights and civil procedure, says the ruling recognizes there is a strong accord on the state-created danger theory in other circuits and that the court must look beyond 5th Circuit precedent in analyzing whether a right is clearly established. That leaves some promise that the 5th Circuit will apply the doctrine in an appropriate case, he says. Sherman says the law is uncertain and that it will be tough to establish a state-created danger. “I think the majority is leaving the door open to doing that,” he adds. However, 5th Circuit Judge Robert M. Parker said in dissent that the majority’s opinion in McClendon reflects a court that aspires to be the only circuit in the country to reject the legal theory but won’t admit it. According to Parker’s opinion, at least seven state-created danger cases have arrived in the 5th Circuit over the past 10 years, but the court never has taken a position on whether the legal theory is valid. Every other circuit has accepted the theory as a valid means of protecting a citizen’s substantive due process rights, the dissent said. “In the face of such overwhelming authority, the majority cowers. It does not have the courage to be the only federal circuit court of appeals in the nation to explicitly reject the state-created danger theory even though that is clearly what it wants to do,” Parker wrote. Judges Jacques Wiener and Harold DeMoss Jr. joined Parker in the dissent. Judge Carl Stewart, who had joined in the panel decision that the state-created danger theory is a viable theory in the 5th Circuit, switched sides. Stewart joined the majority opinion when the whole court reconsidered the issue. Price Ainsworth, an attorney who represents the murdered Border Patrol agents’ families in Salinas, says he’s heartened that the 5th Circuit didn’t reject the theory. Ainsworth, a partner in Austin, Texas’ Spivey & Ainsworth, says Salinas differs from McClendon. In McClendon, a trial judge looking at “a cold record” decided that the detective did not act affirmatively to place the victim at risk of being shot by the informant, he says. “In our case, a jury already found that the city acted with conscious indifference,” Ainsworth says. “That indifference caused the injury, and the injury is a constitutional violation.” Ainsworth also says that while the 5th Circuit found there was no “bright-line policy” regarding state-created danger in the circuit in 1993, when the informant allegedly shot McClendon, all circuits but two had adopted the theory by 1998, when Ernest Moore, son of Harlingen Police Detective R.D. Moore, allegedly shot to death the Border Patrol agents and wounded the deputy. The 5th Circuit held in McClendon that it must consider its own rulings on the theory and the status of the theory in its sister circuits in determining the state of the law at a particular time, he says. Tom Lockhart, an attorney representing the city of Harlingen, says McClendon helps the city. “The issue is whether there’s legally sufficient evidence to sustain a judgment on a 1983 cause of action,” says Lockhart, of Harlingen’s Adams & Graham. The city claims the evidence is insufficient and filed a motion for reconsideration of the case in Tagle’s court on Sept. 6, Lockhart says. Treece, the South Texas College of Law professor, says the 5th Circuit’s decision might create a conflict within the circuits, increasing the odds that the U.S. Supreme Court will consider the case on an application for writ of certiorari. “It makes it more cert-worthy,” Treece says of the ruling. Sherman, the Tulane law professor, predicts that the high court will look for a case in which government had a “very strong role” in creating the danger. “We’re going straight up to the Supreme Court,” says McClendon’s attorney, Kathy Nester, a partner in Christopher & Nester in Ridgeland, Miss. “If there ever was a case that clearly fit all the contours of the state-created danger doctrine, this is it,” Nester says. In his dissent, Parker noted that Carney, the Mississippi detective, allegedly gave the gun to Loftin at a time when the dispute between Loftin and McClendon had reached a “boiling point.” It’s time for the Supreme Court to say whether state-created danger is a viable issue, Nester says. Another issue raised in McClendon that the Supreme Court may want to address, Nester says, is whether law is established in one circuit based on the consensus of decisions in other circuits. Sandra Mohler, Carney’s attorney, declines comment. Mohler, an associate with Bryan Nelson Randolph & Weathers in Hattiesburg, Miss., says, “I think the [5th Circuit] opinion speaks for itself.”

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