In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1816
AMANDA RAKES, Administrator of the Estate of Amylyn
Slaymaker and Next Friend to the minor children G.C. and
M.C.,
Plaintiff-Appellant,
v.
JONATHAN P. ROEDERER and ESTATE OF TE’JUAN JOHNSON,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:21-cv-00114 — Jane Magnus-Stinson, Judge.
____________________
ARGUED JANUARY 18, 2024 — DECIDED SEPTEMBER 25, 2024
____________________
Before RIPPLE, BRENNAN, and SCUDDER, Circuit Judges.
PER CURIAM. On the night of July 18, 2019 in Charlestown,
Indiana, bystanders called 911 to report that a man, RJ
Slaymaker (RJ), and a woman, Amylyn Slaymaker (Amylyn),
were fighting in the middle of a residential street. Two police
officers responded to the call and separated RJ and Amylyn.
Amylyn told the officers that RJ (her husband) was drunk,
2 No. 23-1816
had hit her, had guns on him and at their house, and was
threatening to kill her and himself. RJ denied hitting her or
making any threats. The officers called an ambulance for RJ
so he could get help with mental health issues at a nearby
hospital. After RJ left in the ambulance, the officers allegedly
told Amylyn that RJ would be kept at the hospital under a 24-
hour mental health hold.
But if they did say that to Amylyn, it was not true: neither
the officers nor anyone else placed RJ under a hold. Instead,
the officers merely encouraged him to seek help voluntarily.
RJ left the hospital shortly after arriving and returned to the
house that he shared with Amylyn. There, he shot and killed
Amylyn, then himself.
The administrator of Amylyn’s estate subsequently
brought this action against Officer Roederer and the estate of
Officer Johnson (who died shortly before this litigation). She
primarily relies on the state-created danger doctrine, under
which state officials can in limited circumstances be held
liable under section 1983 for recklessly placing plaintiffs at
risk of harm from third parties. The district court concluded
that the defendants were entitled to qualified immunity and
granted summary judgment on that basis.
We now affirm the judgment of the district court insofar
as it relates to Officer Roederer. He may recover his costs
related to this appeal. We reverse the judgment of the district
court and remand for further proceedings insofar as it relates
to Officer Johnson. His estate may recover its costs on this
appeal.
Each judge of the panel has filed a separate opinion setting
forth his view on the appropriate disposition of this appeal.
No. 23-1816 3
Judge Ripple would reverse the judgment of the district court
with respect to both defendants and remand for further
proceedings. Judge Scudder would reverse the judgment and
remand for further proceedings with respect to the estate of
Officer Johnson. He would affirm the judgment with respect
to respect to Officer Roederer. Judge Brennan would affirm
the judgment of the district court with respect to both
defendants. The opinion of each judge is set forth below.
RIPPLE, Circuit Judge. At the time of their deaths, RJ and
Amylyn Slaymaker had been married for about seven years.
The allegations of abuse during that period are startling. He
shot at her on multiple occasions, and he once set fire to their
couches in an attempt to burn down their house. He also often
“dared” her to engage in sexual acts with other men and
threatened to hurt her if she did not complete the “dares.”
Examples of these threats included “I’ll break your fucking
jaw [if] you walk in my fucking house without completeing
[sic] my dare” 1 and “Come home and not complete shit, you
will be in the hospital.” 2 Whenever Amylyn suggested
divorce, RJ threatened suicide. If she called the police, RJ said
he would commit “suicide by cop.” 3
On the night in question, RJ completely lost control. He
had a few drinks, then a few more drinks. At around 11 p.m.,
he texted Amylyn to say that, because she had not completed
one of his “dares,” he was going to “gun [d]own” Eric,
1 R.67-21 at 7.
2 Id.
3 R.67-3 at 20:53-58; R.67-4 at 22.
4 No. 23-1816
Amylyn’s ex-husband and the father of her two children. 4 Eric
was watching the children at his house that night. RJ taunted
Amylyn: “Watch [m]e on gps. … Heading to your kids
house.” 5 He told her to “[g]ive it 10 mins and call the cops.” 6
It would be a “[r]eal suicide crime scene,” he predicted.7
Amylyn barely beat RJ to Eric’s house, stopping him right in
front of Eric’s driveway. RJ said to her, “Do you want me to
shoot you? And then the kids come out in the morning to see
their mother dead?”8 The two of them got into a physical
altercation in the street.
One of Eric’s neighbors saw them fighting and called 911.
The neighbor told dispatchers that he and his wife saw a man
hitting a woman on the street near his house and that the man
may have had a gun. Charlestown Police Department Officers
Te’Juan Johnson and Jonathan Roederer responded to the call.
The officers drove to the scene separately, and video cameras
mounted on the dashboards of their cars captured much of
what followed. When the officers arrived, Amylyn told them
that RJ was drunk and armed and that she was “scared for
[her] life.” 9 The officers handcuffed RJ, confiscated his gun,
and separated the spouses.
The officers endeavored to find out what had happened.
Officer Johnson spoke with Amylyn. She showed him the
4 R.82-4 at 1.
5 Id.
6 Id.
7 Id.
8 R.67-4 at 14.
9 R.67-3 at 1:33-35; R.67-4 at 4–5.
No. 23-1816 5
texts RJ had sent her and told him that, during the fight in the
street, RJ had punched her and hit her with the front sight of
his gun. She also told him about RJ’s other threatening
behavior and that he had two AR-15s at their house. Officer
Roederer spoke with RJ and the neighbors. RJ denied hitting
Amylyn and said he was having a hard time with PTSD he
developed in military service. The neighbors admitted
uncertainty about whether they had actually seen RJ hit her.
At one point, Amylyn asked Officer Johnson if the officers
could remove RJ’s AR-15s from her house. Officer Johnson
relayed the request to Officer Roederer and suggested that
Officer Roederer drive RJ back to the house and remove the
AR-15s. Officer Roederer expressed hesitation:
OFFICER ROEDERER: You want me to get the guns
from his house?
OFFICER JOHNSON: Yeah, the two AR-15s, yeah.
…
OFFICER ROEDERER: I mean, should I keep him in
cuffs until I get the guns? I’m
not -- I mean, I don’t want to
walk inside -- 10
In his deposition, Officer Roederer confirmed that his concern
was one of “officer[] safety.” 11 Officer Johnson seemed to
appreciate this concern, and the two of them discussed other
potential courses of action.
10 R.67-3 at 29:32-30:15; R.67-4 at 30–31.
11 R.82-3 at 66.
6 No. 23-1816
After some deliberation, the officers ruled out one such
course of action: arresting RJ. Officer Johnson told Amylyn
that they did not plan to arrest RJ, and he explained to
Amylyn certain options she had, including going to the
courthouse in the morning and asking the court to commit RJ
to a hospital on account of his suicide risk. Amylyn then said
to them: “I have proof that he tried to attempt suicide before.
Will that help? … [H]e sent me a picture of his gun against his
head recently.” 12 Amylyn showed the officers the picture, and
Officer Johnson told her, “Wait right here for me.” 13
The officers walked over to RJ and suggested that he go to
a nearby hospital to “get checked out.” 14 They assured him
that they would not go with him to the hospital and that they
would not show anyone else the picture in which he was
pointing a gun to his head. They also told him that if he did
not agree to go to the hospital, they could compel him to stay
there for a week. But if he went on his own accord, Officer
Roederer said, “you don’t have to stay in there.” 15 Officer
Johnson twice told RJ that he would prefer that RJ go
voluntarily, because otherwise he would have to type up a
report. 16 RJ reluctantly agreed. The officers called an
ambulance, which arrived at around 12:40 a.m. Officer
12 R.67-3 at 39:10-21; R.67-4 at 41.
13 R.67-3 at 44:25-27; R.67-4 at 47.
14 R.67-3 at 44:59-45:02; R.67-4 at 48.
15 R.67-3 at 48:10-13; R.67-4 at 53.
16 See R.67-4 at 48 (“I’d rather for you to do it voluntarily, or -- you know,
so now I got to type a report.”); id. at 51 (“If you’re willing to go -- or if
not, I go back to the station, type up papers, then I got to corroborate
everything it says in there.”).
No. 23-1816 7
Johnson told the EMTs: “This is RJ. Man, he got into it with
his wife. He was having a bad day. Problems -- you know, he
wants to voluntarily get checked out.” 17
The officers then went back to speak with Amylyn. The
conversation that followed is at the center of this case:
OFFICER JOHNSON: Are you going to go to your
house? You’re -- you’re going
to be at your parents’ house?
AMYLYN SLAYMAKER: Well, you -- you said it’s a 24-
hour thing, right? For an
evaluation?
OFFICER JOHNSON: Yeah … . 18
The conversation continued, eventually returning to the topic
of where Amylyn planned to stay that night:
OFFICER JOHNSON: Okay, so are you going to go to
your house?
AMYLYN SLAYMAKER: Well, tonight, yeah.
OFFICER JOHNSON: Are you going to --
AMYLYN SLAYMAKER: You said it’s a 24 hour?
OFFICER JOHNSON: Yeah. So are you going to get
the guns and everything when
you go home?
17 R.67-3 at 1:02:39-47; R.67-4 at 73.
18 R.67-3 at 1:08:03-15; R.67-4 at 77–78.
8 No. 23-1816
AMYLYN SLAYMAKER: Yeah, I’m going to take them
with me to my parents’. 19
According to Ms. Rakes, these exchanges indicate that, at
some time earlier that night, the officers told Amylyn that
they would send RJ to the hospital with instructions for
hospital staff to put him under a 24-hour mental health hold.
The officers were permitted to put RJ under such a hold by
state law, 20 and they were required to do so by their
department’s policy. 21
Everyone eventually left the scene, but not long
afterwards, Officer Johnson got a call from Amylyn. She told
19 R.67-3 at 1:29:24-33; R.67-4 at 97.
20 At the time, Indiana law permitted law enforcement to transport a
person who has a mental illness, is dangerous, and “is in immediate need
of hospitalization and treatment” to a nearby hospital, and to detain that
person for up to 24 hours. See Ind. Code § 12-26-4-1 et seq. (repealed in
2023); see also T.K. v. Dep’t of Veterans Affairs,
27 N.E.3d 271, 273 n.1 (Ind.
2015) (describing circumstances under which the state law then in effect
permitted involuntary civil commitment).
21 Under the policy,
A Department officer …, who during the course of their duties as
a law enforcement officer, has reasonable grounds to believe that
an individual is mentally ill, dangerous to themselves or others,
and/or in immediate need of hospitalization and treatment shall:
1. Exercise immediate twenty-four (24) hour detention for mental
evaluation authority provided for in Indiana Code 12-26-4.
2. Summons an ambulance to transport the individual to the
nearest medical facility with psychiatric intake personnel … .
3. Complete a narrative style report or proper facility form(s) … .
R.48-3.
No. 23-1816 9
him that she had found a scratch on her arm that was
consistent with having been hit by RJ’s gun in their fight
earlier. Amylyn went to the police station and showed Officer
Johnson the scratch. Officer Johnson summarized the
conversation that followed in a report he filed at least one day
later (i.e., after he learned about the murder-suicide). In that
report (the veracity of which Ms. Rakes questions), Officer
Johnson wrote that he told Amylyn to “make sure to get the
other two AR-15s and stay at her mother[’s] house.” 22 He also
wrote: “Amylyn asked several times how long will [RJ] be in
the hospital. Officers told her we did not know.” 23
Meanwhile, RJ walked into the hospital at approximately
1 a.m., alone. He received a psychiatric evaluation and was
discharged at 3:41 a.m. Sometime after that, he went home
and shot Amylyn in the head with one of his AR-15s. He sent
a message to his mother at 7:49 p.m. the following evening,
stating that he had killed Amylyn because she had “[s]crewed
[him] so bad.” 24 RJ sent his mother another message at
approximately 11:43 p.m. (by now, nearly 24 hours after RJ
entered the hospital). The message stated: “I’m not going to
prison. Amylyn is dead. And so am I.”25 RJ’s mother called
the police department to request a welfare check, which
prompted officers to go to RJ and Amylyn’s house at around
22 R.67-9 at 15.
23 Id.
24 R.82-11 at 2.
25 R.67-11 at 6.
10 No. 23-1816
midnight. The officers found both RJ and Amylyn dead.
Amylyn’s body was “cold to the touch.” 26
Amanda Rakes, the administrator of Amylyn’s estate,
brought this action in the United States District Court for the
Southern District of Indiana. Her complaint sets forth a
substantive due process claim under 42 U.S.C. § 1983 and a
gender-discrimination conspiracy claim under
42 U.S.C.
§ 1985. She named as defendants Officer Roederer and,
because Officer Johnson died between the events in question
and the filing of this suit, Officer Johnson’s estate. The
defendants moved for summary judgment on both claims.
The district court granted summary judgment to the
defendants. The court noted that Ms. Rakes’s substantive due
process claim was based on the premise that the officers had
told Amylyn “that RJ would be held for 24 hours at the
hospital and that it therefore was safe for her to go home.”
Rakes v. Roederer, No. 4:21-cv-00114, 2023 WL 2712370, at *16
(S.D. Ind. Mar. 30, 2023). It then held that Officer Roederer
was entitled to qualified immunity because, in the district
court’s view, there was no evidence that he had made any
assurances to Amylyn and there was generally a “lack of
evidence of any personal involvement” on his part.
Id. at *18
n.8.
The district court also held that Officer Johnson was
entitled to qualified immunity. Here, the court focused on the
time that Officer Johnson had spent trying to talk Amylyn into
staying at her parents’ house. It further deemed significant
that “RJ had been a danger to Amylyn for months before the
incident and would likely have continued to be so even if he
26 R.67-12 at 2.
No. 23-1816 11
had been held for 24 hours at the hospital.” Id. at *18. Finally,
the district court separately rejected Ms. Rakes’s gender-
discrimination conspiracy claim. It entered summary
judgment for the defendants on both claims.
Ms. Rakes appealed the district court’s grant of summary
judgment on her substantive due process claim.
We review de novo a district court’s decision granting
summary judgment. Pierner-Lytge v. Hobbs, 60 F.4th 1039, 1043
(7th Cir. 2023). Summary judgment is appropriate if “there is
no genuine dispute of fact” and the moving party is “entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
applying this standard, we view the facts and draw all
reasonable inferences in the light most favorable to the
nonmoving party. Pierner-Lytge,
60 F.4th at 1043.
The main basis for the district court’s grant of summary
judgment was its conclusion that the defendants are entitled
to qualified immunity. “Determining whether a defendant
state officer is entitled to qualified immunity involves two
inquiries: ‘(1) whether the facts, taken in the light most
favorable to the plaintiff, make out a violation of a
constitutional right, and (2) whether that constitutional right
was clearly established at the time of the alleged violation.’”
Gibbs v. Lomas, 755 F.3d 529, 537 (7th Cir. 2014) (quoting
Williams v. City of Chicago,
733 F.3d 749, 758 (7th Cir. 2013)).
“If either inquiry is answered in the negative, the defendant
official is entitled to summary judgment.”
Id.
The Due Process Clause of the Fourteenth Amendment
generally does not impose a duty upon the State to protect
individuals from harm by private actors. DeShaney v.
Winnebago County Department of Social Services,
489 U.S. 189
12 No. 23-1816
(1989), embodies that principle. DeShaney involved a due
process claim brought on behalf of a young boy who was
abused by his father.
Id. at 191. County social workers became
aware of suspicious injuries and other signs of abuse but took
no action to remove the child from his father’s custody.
Id.
After the latest and most severe beating left the boy
permanently disabled, the father was arrested and convicted
of child abuse.
Id. at 193. The boy’s mother then brought a
section 1983 action against the county and the social workers.
She claimed that they had violated her son’s right to due
process of law.
Id. The Supreme Court articulated the general
principle that “a State’s failure to protect an individual
against private violence simply does not constitute a violation
of the Due Process Clause.”
Id. at 197. It accordingly rejected
the mother’s claim because “the State had no constitutional
duty to protect [the boy] against the father’s violence.”
Id. at
202.
Although state officials do not have a federal
constitutional duty to protect individuals not in custody, they
do have a duty not to “needlessly create risks of harm.” Paine
v. Cason, 678 F.3d 500, 510 (7th Cir. 2012). Indeed, the Court
indicated as much in DeShaney, when it emphasized, no less
than three times, that the defendants played no part in the
creation of the danger the boy faced.
489 U.S. at 197, 201, 201–
02. Accordingly, although mindful of DeShaney, we have
recognized in several decisions that state officials can, in
limited circumstances, be held liable under § 1983 for
unjustifiably placing a person at risk of harm from third
parties. See, e.g., Paine, 678 F.3d at 510–11 (police could be
liable under § 1983 for arresting woman in safe area and
releasing her in area with an exceptionally high crime rate);
Reed v. Gardner,
986 F.2d 1122, 1127 (7th Cir. 1993) (police
No. 23-1816 13
could be liable under § 1983 for arresting car driver and
leaving keys in hands of intoxicated passenger). We have
termed such claims state-created danger claims and called the
resulting doctrine the state-created danger doctrine. Most
other circuits have recognized a version of this doctrine. See
Irish v. Fowler,
979 F.3d 65, 67, 73 (1st Cir. 2020) (collecting
cases from nine circuits and joining those circuits).
The state-created danger doctrine has important limits.
First, the plaintiff must show that “the state affirmatively
place[d] the individual in a position of danger the individual
otherwise would not have faced.” Wallace v. Adkins, 115 F.3d
427, 430 (7th Cir. 1997). Second, the plaintiff must show “that
the state’s failure to protect him from that danger was the
proximate cause of his injury.” First Midwest Bank v. City of
Chicago,
988 F.3d 978, 988 (7th Cir. 2021). “Finally, because the
right to protection against a state-created danger arises from
the substantive component of the Due Process Clause, the
state’s failure to protect the plaintiff must shock the
conscience.”
Id. at 989.
I pause here to clarify two points pertinent to the
remainder of the discussion. First, a plaintiff bringing a state-
created danger claim need not establish that the defendant
official cut off other avenues of aid or rendered the victim
unable to help himself. We rejected that requirement in
Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998). In that case, we
rejected an argument that the state-created danger doctrine
contained an “absolute requirement that all avenues of self-
help be restricted.”
Id. at 517. We stated that “a state can be
held to have violated due process by placing a person in a
position of heightened danger without cutting off other
avenues of aid.”
Id.
14 No. 23-1816
The defendants invite us to reverse course and to require
a showing that the State has disabled or undermined self-help
or sources of private assistance. But it is hard to see why this
showing should be required. Even if the police (for example)
have not cut off other avenues of aid, if “the police place a
person in a situation in which he is endangered by other
private persons[,] the police in effect are their accomplices—
unwitting, but if reckless, culpable.” Slade v. Bd. of Sch. Dirs. of
Milwaukee, 702 F.3d 1027, 1030 (7th Cir. 2012). The defendants
submit that DeShaney requires this showing. However,
DeShaney made clear that it was not addressing a case in
which the State had created the danger the boy faced. It
should not be read, therefore, as imposing any particular
requirements onto such claims. Most of the other circuits have
not imposed this requirement for state-created danger claims.
See Erwin Chemerinsky, The State-Created Danger Doctrine,
23
Touro L. Rev. 1, 15–18 (2014) (surveying circuit decisions). In
short, the defendants have not provided a “compelling
reason” for overruling circuit precedent. Wilson v. Cook Cnty.,
937 F.3d 1028, 1035 (7th Cir. 2019).
The second point warranting mention relates to Officer
Roederer’s involvement in the alleged constitutional
violation. “A governmental actor may be held personally
liable only for constitutional violations in which [he]
personally participated.” Harnishfeger v. United States, 943
F.3d 1105, 1122 (7th Cir. 2019). We have previously addressed
the application of this principle to the state-created danger
context. In that context, if one officer could be held liable for
placing an individual in a position of danger, and there is
another officer who, with the requisite state of mind,
“participa[ted] in the conduct giving rise to the peril,” then
the second officer can be liable along with the first one.
No. 23-1816 15
Richman v. Sheahan,
512 F.3d 876, 885 (7th Cir. 2008); see Paine,
678 F.3d at 512 (officer could be liable under the state-created
danger doctrine when other officers arrested woman in a safe
area, the officer ignored phone calls from the woman’s
mother while the woman was in custody, and the officer
failed to return the woman’s cell phone to her before she was
released by other officers in a dangerous area); Richman,
512
F.3d at 885 (explaining that, if two officers arrest a drunk
driver and strand the passengers by taking the keys from the
ignition and then driving off, both officers can be liable under
the state-created danger doctrine, even if only one had
removed the keys).
The district court concluded that Officer Roederer was
entitled to summary judgment for the independent reason
that there was a “lack of evidence of any personal
involvement” on his part in the alleged constitutional
violations. Rakes, 2023 WL 2712370, at *18 n.8. The record does
not support this characterization. Officer Roederer played an
active role, which included persuading RJ to go to the hospital
and convincing Officer Johnson not to send him to pick up the
guns from the house. He was also present for many of Officer
Johnson’s conversations with Amylyn, including the
conversation in which Officer Johnson twice indicated that
RJ’s hospital stay would be a “24-hour thing.” Even if Officer
Roederer were not the one to tell Amylyn that RJ would be
put under a 24-hour hold, or to confirm as much, a jury could
find that he played a significant role in the alleged violation.
With these principles and clarifications in mind, I proceed
to evaluate Ms. Rakes’s state-created danger claim.
To prevail on her state-created danger claim, Ms. Rakes
first must show that the officers “placed [Amylyn] in a
16 No. 23-1816
position of danger that [s]he would not otherwise have
faced.” Wallace, 115 F.3d at 430. This means that she must
stake her claim on “an affirmative act on the part of the state,”
Stevens v. Umsted,
131 F.3d 697, 705 (7th Cir. 1997), rather than
on a mere failure to protect her from harm. See Doe v. Vill. of
Arlington Heights,
782 F.3d 911, 918 (7th Cir. 2015) (officer who
saw three men carrying intoxicated woman but did not
intervene to stop the sexual assault that ensued could not be
liable under § 1983); Windle v. City of Marion,
321 F.3d 658,
661–62 (7th Cir. 2003) (police officer who did nothing after
learning that a teacher was molesting a minor student could
not be liable under § 1983).
Ms. Rakes contends that the officers created a danger for
Amylyn by falsely telling Amylyn that RJ would be detained
at the hospital for 24 hours. Although she has not presented
evidence that directly establishes that either of the officers
made such a statement, she submits that a jury could
reasonably infer—from the department policy, Indiana law,
and the exchanges about the “24-hour thing”—that one or
both of the officers made such a statement or acquiesced in
Amylyn’s articulation of it. I agree that a jury could draw that
inference.
A jury could conclude that the officers’ alleged
misrepresentations created a danger for Amylyn that she
would not otherwise have faced. According to Ms. Rakes’s
account (which a jury would be entitled to credit), the officers
told Amylyn that they had transferred RJ to the hospital with
instructions to keep him detained for 24 hours. In this
account, Officer Johnson twice confirmed this misleading
statement with Officer Roederer standing by. The misleading
statements created a risk that Amylyn would be at the home
No. 23-1816 17
when RJ returned, angry at Amylyn and with access to his
two AR-15s. This was not a risk Amylyn otherwise faced. RJ
posed far less of a risk to her before their encounter with the
officers, and he certainly would have posed far less of a risk
to her if she had known that he was not in fact being detained.
On this record, a jury would be entitled to conclude that, if
she had known that RJ might return home that night, she
would not have returned to her home but would have gone
directly to her parents’ house. 27
Another consideration supports this conclusion. Given
Officer Johnson’s statements on the dash cam, a jury would
be entitled to conclude that, having told her that RJ would not
be returning to the home that evening, the officers tasked her
with removing the AR-15s before RJ’s return, a job that they
preferred not to undertake themselves. The record is
susceptible to the inference that the officers encouraged her to
perform this task so that they would not have to be bothered
or endangered. A jury would be entitled to conclude that she
not only returned to her home under false assurances of her
safety but also based on the officers’ encouragement to secure
the weaponry present there prior to RJ’s return.
Judge Brennan’s opinion argues that, given the troubled
state of the Slaymaker marriage, the officers did not leave
Amylyn any worse off than they had found her. Fairly read,
the record supports, and a jury would be entitled to conclude,
that Amylyn was hardly left in the situation that she had
experienced throughout her troubled marriage to RJ. The
27 Although Judge Brennan’s opinion recites several times that the
evidence must be interpreted in the light most favorable to the Estate, it
does not apply that rule with any consistency.
18 No. 23-1816
record makes clear that a chronically bad marital situation
had now escalated to a crisis level where the parties not only
had irreconcilable differences but could not remain under the
same roof without the possibility of deadly violence. More
than anyone, the officers understood that the residual discord
of the past had reached a new and dangerous level that
implicated not only the couple but their children and others
such as Amylyn’s former husband. They urged her to seek the
protection of the courts against further unwanted contact
with RJ. They also urged her to abandon her efforts to seek
help for RJ and to make her safety and that of her children her
primary objective. Amylyn, at least by the end of her time
with the officers, understood that she faced a new and more
dangerous situation. She made it clear that she would not
return to the home if RJ might be there. She went back to the
home to collect the AR-15s only on the misrepresentation of
the officers that RJ would not be there.
Ms. Rakes next must show that the officers’ conduct
proximately caused Amylyn’s death. Proximate cause in this
context is “a fact specific inquiry, involving a consideration of
time, geography, range of potential victims, and the nature of
harm that occurred.” Buchanan-Moore v. Cnty. of Milwaukee,
570 F.3d 824, 829 (7th Cir. 2009). In this case, the officers and
Amylyn expressly discussed the danger that RJ posed to her
that night, at the home the two of them shared, if RJ had access
to his guns. Indeed, Officer Johnson expressly anticipated
that, if RJ were allowed to go voluntarily to the hospital, “the
next thing you know, you’re back at the house, fighting, guns
involved and stuff like that.” 28 This case is nothing like cases
28 R.67-3 at 1:00:22-28; R.67-4 at 71.
No. 23-1816 19
in which courts have held that a lack of proximate cause
defeated a state-created danger claim. See, e.g., Martinez v.
California,
444 U.S. 277, 285 (1980) (parole board members
could not be liable under § 1983 when someone they paroled
committed a random murder five months later, because the
death was “too remote a consequence” of their parole
decision); Buchanan-Moore, 570 F.3d at 828–29 (victim of
random burglary at hands of mentally ill man prematurely
released from jail did not have a valid § 1983 claim). A
reasonable jury could certainly find that Ms. Rakes has
established proximate cause for purposes of the state-created
danger doctrine.
Ms. Rakes also must show that the officers’ conduct was
“so egregious, so outrageous, that it may fairly be said to
shock the contemporary conscience.” Cnty. of Sacramento v.
Lewis,
523 U.S. 833, 847 n.8 (1998). “[W]hen the circumstances
permit public officials the opportunity for reasoned
deliberation in their decisions,” we will “find the official’s
conduct conscience shocking when it evinces a deliberate
indifference to the rights of the individual.” King v. E. St.
Louis,
496 F.3d 812, 819 (7th Cir. 2007). “‘[D]eliberate
indifference’ is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious
consequence of his actions.” Bryan Cnty. v. Brown,
520 U.S.
397, 410 (1997). The parties have assumed that deliberate
indifference is the proper standard for this case; we will not
challenge that assumption.
A jury could reasonably find that the officers were aware
of the risk that, if RJ were not detained that night and Amylyn
went back to her house, RJ would use his guns to hurt or kill
her. The officers knew that RJ was drunk and unstable.
20 No. 23-1816
Amylyn told them that he was hitting her and about the
threats he was making, and she showed Officer Johnson the
alarming texts that RJ sent her just beforehand. Further,
Amylyn and the officers discussed at multiple junctures the
issue of the AR-15s at Amylyn and RJ’s house. Officer
Roederer even acknowledged the danger posed by RJ’s access
to those AR-15s when he said that he would not want to
confiscate them himself if RJ were not detained. Amylyn’s
questions to the officers about the “24-hour thing” also
support an inference that the officers were aware of the
specific risk. She asked those questions in response to the
question of whether she was going to her and RJ’s house that
night—indicating to the officers that her decision about where
to go depended on whether RJ would be detained.
A jury could also reasonably find that the officers acted
with deliberate indifference to the danger I have just
described. Of all of the options the officers had, they seem to
have chosen the one most dangerous to Amylyn: letting RJ go,
but nonetheless leading Amylyn to believe that he had been
detained. If that is what the officers did, a jury could conclude
that they did so because it was safest and most convenient for
them. Placating RJ and lying to Amylyn spared the officers
from having to deal with the two of them anymore. It also
spared the officers from needing to do the paperwork that
presumably would have followed an arrest or civil
commitment, which was something Officer Johnson twice
told RJ he wanted to avoid. In addition, if they did mislead
Amylyn, doing so helped them avoid the hassle and potential
danger of removing the AR-15s from her and RJ’s house. The
record clearly allows a jury to conclude that Amylyn agreed
to undertake that task without the officers’ help only because
they lulled her into believing that RJ would be detained while
No. 23-1816 21
she completed the task. As Judge Brennan’s opinion
emphasizes, the officers were at the scene for more than
ninety minutes. But the evidence also would allow a jury to
find that, during those ninety minutes, they deliberately
manipulated the resolution of the encounter to relieve
themselves of further work, even though that self-interest
exposed Amylyn to a new and immediate danger. The
evidence of deliberate indifference, considered in totality, is
sufficient to present to a jury for evaluation.
The defendants maintain that, even if Ms. Rakes has
established a triable state-created danger claim, they are
nonetheless entitled to qualified immunity. “Qualified
immunity attaches when an official’s conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” City of Escondido v.
Emmons, 586 U.S. 38, 42 (2019) (quoting Kisela v. Hughes,
584
U.S. 100, 104 (2018) (per curiam)). “A clearly established right
is one that is ‘sufficiently clear that every reasonable official
would have understood that what he is doing violates that
right.’” Mullenix v. Luna,
577 U.S. 7, 11 (2015) (per curiam)
(quoting Reichle v. Howards,
566 U.S. 658, 664 (2012)).
A plaintiff can demonstrate that a right is clearly
established in several ways, one of which is by identifying a
“closely analogous case finding the alleged violation
unlawful.” Stockton v. Milwaukee Cnty., 44 F.4th 605, 620 (7th
Cir. 2022). The case must be “controlling,” Ashcroft v. al-Kidd,
563 U.S. 731, 741 (2011) (quoting Wilson v. Layne,
526 U.S. 603,
617 (1999)), which for our purposes means that it came from
the Supreme Court or this court. Lovett v. Herbert,
907 F.3d 986,
992 (7th Cir. 2018). The case need not be “directly on point,”
Kisela,
584 U.S. at 104 (quoting White v. Pauly,
580 U.S. 73, 79
22 No. 23-1816
(2017) (per curiam)), and it need not have held that “the very
action in question” was unlawful, Anderson v. Creighton,
483
U.S. 635, 640 (1987). But it “must have placed the statutory or
constitutional question beyond debate,” Kisela,
584 U.S. at 104
(quoting White,
580 U.S. at 79), and “in the light of pre-existing
law the unlawfulness” of the official’s conduct must be
“apparent,” White,
580 U.S. at 80 (quoting Anderson,
483 U.S.
at 640).
Ms. Rakes primarily relies on Monfils v. Taylor, supra. In
that case, an informant told the police about a theft at his
workplace, in a call that the police recorded.
165 F.3d at 513.
The informant called again later on, and he told the
department’s deputy chief that he feared that he would be
killed or badly hurt if the recording of the call were released.
Id. at 514–15. The informant asked the deputy chief multiple
times whether the police planned to release the recording,
and each time the deputy chief told him it would not be
released.
Id. But the department did release it, and the thief
obtained it and killed the informant soon afterwards.
Id. at
515.
We held that the deputy chief could be liable under § 1983
and that he was not entitled to qualified immunity. Critically,
we did so, not because the deputy chief was somehow
responsible for the recording’s release, but because he falsely
represented to the informant and others that the recording
would not be released. We explained: “[The deputy chief]
clearly created a danger and, by assuring Hitt (the assistant
district attorney) that he would make sure the tape was not
released but not following through, he created a danger
Monfils would not otherwise have faced.” Id. at 518. For this
No. 23-1816 23
reason, we concluded that the deputy chief “is not and never
was entitled to qualified immunity.” Id.
Monfils rendered it clearly established in this circuit that a
police officer can be liable under the state-created danger
doctrine if he recklessly and repeatedly lies to a person about
the danger that person faces from an identified and violent
third party. Respectfully, this core holding of Monfils remains
good law, despite the defendants’ and the statements in Judge
Brennan’s opinion to the contrary. To be sure, there is dicta in
an earlier decision of ours suggesting that Monfils “may well
have been superseded by” Town of Castle Rock v. Gonzales, 545
U.S. 748 (2005). Sandage v. Bd. of Comm’rs of Vanderburgh Cnty.,
548 F.3d 595, 599 (7th Cir. 2008). That speculation was, and is,
raw dicta and its cold reception by our colleagues in other
circuits confirms its unreliability. 29
The officers’ conduct in this case, viewed in the light most
favorable to Ms. Rakes, falls squarely within that
constitutional prohibition. Indeed, this case presents a more
egregious situation than the one presented in Monfils. The
officers, acutely aware of the danger that Amylyn would face
if she were alone at her house with RJ, nevertheless told her
to remove RJ’s arsenal before his return. Yet, Officer Roederer
29 See Robinson v. Lioi, 536 Fed. App’x 340, 345 & n.3 (4th Cir. 2013)
(concluding that state-created danger claims were not “foreclosed by
Castle Rock” because the Supreme Court did not have before it a
substantive due process claim); Caldwell v. City of Louisville, 200 Fed. App’x
430, 435 (6th Cir. 2006) (“There is nothing in Castle Rock that compels a
conclusion the Supreme Court intended to eliminate the state-created
danger exception to the DeShaney rule. This is not surprising since the
Court did not have occasion to address or consider the plaintiff’s
substantive due process claim as it was not before the Court.”).
24 No. 23-1816
himself admitted that he was not willing to remove RJ’s AR-
15s from the house unless RJ were detained. Taking the facts
in the light most favorable to Ms. Rakes, the officers, although
aware that RJ might return to the home at any time, falsely
assured Amylyn that he would be absent for 24 hours and
that, during that time, she should secure RJ’s weapons, a task
that they were unwilling to undertake because of its
dangerousness. In other words, taking the facts in the light
most favorable to the nonmoving party, a finder of fact would
be entitled to conclude that the officers repeatedly lied to
Amylyn about whether they had placed RJ under a mental
health hold and told her to retrieve dangerous weapons while
knowing that she might well confront RJ as she did so.
Amylyn acted on these misrepresentations and,
consequently, died at RJ’s hand. On this record, the
defendants are not entitled to qualified immunity.
A reasonable jury could find the defendants liable on
Ms. Rakes’s state-created danger claim, and the defendants
are not entitled to qualified immunity. Accordingly, I would
reverse the district court’s judgment and remand the case for
proceedings consistent with this opinion.
No. 23-1816 25
BRENNAN, Circuit Judge. Amylyn Slaymaker’s murder at
the hands of her husband, RJ Slaymaker, is tragic. Her death
was the culmination of a long-term abusive relationship in
which RJ subjected her to his wrath, threats, and physical vi-
olence. Charlestown, Indiana ȱ ȱ Ĝȱ
Te’Juan Johnson and Jonathan Roederer responded to the last
occasion of domestic violence before Amylyn’s murder. The
ȱȱĜȱ ȱ remanded for a jury to decide
whether he should be held liable for Amylyn’s death.
The legal doctrine underpinning the alleged liability—the
state-created danger doctrine—has narrow requirements that,
in my evaluation, the undisputed evidence here cannot meet.
Even more, that evidence entitles ȱĜȱȱęȱȬ
munity because they did not violate Amylyn’s clearly estab-
lished constitutional rights. On theȱǰȱ ȱ ȱĜȱ
the district court’s decision to grant summary judgment to the
Ĝǯ
I. Background
The per curiam opinion provides the relevant facts, but to
me two points require greater emphasis. First, RJ victimized
Amylyn with pervasive violence for ȱȱȱĜȬ
ȱ ȱ ȱ ǯȱ ǰȱ ȱ Ĝȱ ¢ȱ ȱȬ
ylyn for over ninety minutes, continuously reassessing the sit-
uation to seek a safe resolution for all the involved parties. I
restate the facts pertinent to these points because, in my view,
¢ȱ ěȱ somewhat from the recitation in Judge Ripple’s
opinion.
Amylyn was in constant danger for months before she was
killed. As she explained ȱȱĜ, violence and domestic
ȱȱ¢ȱęȱher marriage with RJ. Over the last
26 No. 23-1816
six to eight months they ȱȱęȱ¢. RJ had con-
stantly abused Amylyn. He had even shot ȱęȱat her “a
couple of times” and had been drinking heavily. Amylyn sug-
gested that they separateǰȱ ȱ ǰȱ ȱ ȱ Ĵȱ ȱ
crueltyǰȱěȱȱ with threats of suicide.
Fearing for her life, just nine days before her murder, Am-
ylyn wrote ȱ Ĵȱ ȱ ȱ ȱ ȱ ȃȱ Ȭ
pen[ed] to” her. 1 ȱȱĴȱhe documented RJ’s abuse—he
had previously tried to choke her to death and threatened to
kill her and her children. She also explained that she shot RJ
in the hand in self-defense. The next day she added to the let-
ter, in which she wrote, “RJ did it again … he threatened me.
… [H]e made me hold his hand [and] try to get me to help
shoot him in the head. 2
ȱȱȱĜȂȱȱȱ, from the time they
arrived on the scene, they were constantly talking with Am-
ylyn and RJ, collecting new information, and correcting their
course of action. Their response was to ȱȱȱȱĚȱ
and dangerous scenarios for law enforcement: domestic vio-
lence.
When the Ĝȱarrived to investigate, they separated RJ
ȱ¢¢ȱȱȱȱȱȱȱęǯȱȱȬ
tained and spoke with RJ, while Johnson spoke with Amylyn.
Amylyn described ȱ ȱ ȱ ȱ ę: RJ had
PTSD, was intoxicated, and had threatened to kill her and her
children. She also told Johnson she had two guns in her purse.
RJ told ȱěȱ¢ǯȱ ȱȱȱ was a veteran,
1 Dist. Ct. DE 67–17 at 1. The officers did not know about this letter.
2 Id. at 2.
No. 23-1816 27
Amylyn did not want him to leave the house because she did
not want him to ȱȱ ȱȱȱȱĚ,
ȱęȱ ȱȱ¢, and he did not pull his gun.
ȱĜȱǰȱȱ ȱ¢ȱȱȱǰȱȱ
then spoke with Amylyn. She disputed some of RJ’s state-
ments. She said RJ had pulled his gun, pistol-whipped her,
ȱĴȱȱȱȱin the ȱȱęȱȱȬ
ȱ ȱ Ĝȱ ǯȱ She said she grabbed her guns be-
cause RJ threatened her children and ex-husband that night,
even going so far as to send her photos of him driving toward
her children’s location. Amylyn also explained that RJ was
irate because she did noȱȱȃ¡ȱě” (what turned out
to be arranged sexual interactions with strangers). Johnson
did not see any bruises or marks on Amylyn at that time. He
also ȱ¢¢ȱȱȱ ǰȱȱȱǰȱęȱȱȱȬ
vorce, and seek an emergency protective order.
Johnson and Roederer decided they could not charge RJ
with a crime (including ȱȱȱĚȱor public
intoxication) because of the inconsistencies in the Slaymakers’
statements and the lack of visible, physical injury to Amylyn.
But they agreed to take RJ’s and Amylyn’s guns for safekeep-
ing.
Amylyn informed Johnson that there were more guns at
her and RJ’s residence, including two AR-15s, and she asked
if Johnson could retrieve them. The two discussed the possi-
bility of Amylyn staying at her parents’ home for the night.
But Amylyn was concerned that leaving RJ alone would result
ȱ ȱ Ĵȱ ȱ ¢ȱ ȱ . Meanwhile,
Roederer told RJ that he would not be charged, he would need
a ride home, and they were taking his handgun for safekeep-
ing until he sobered up.
28 No. 23-1816
ȱĜȱ ȱȱ ȱȱȱȱȱ ȱ
back to the home, picking up the AR-15s, and taking them
back to the police station, in light of Amylyn’s revelation that
RJ previously “tried to burn the house down.” The two agreed
to take RJ to the police station, take Amylyn home to retrieve
the guns, and then to take RJ home while Amylyn went to her
parents.
Amylyn again raised her fear that RJ would burn down
their house if left alone. Johnson tried to convince Amylyn not
to return to the home she shared with RJ. Johnson reminded
her, “a home can be replaced. Your life can’t.” He advised her
to go to court, get a no-ȱǰȱęȱȱǰȱȱȱ
up from RJ. And Johnson went so far as to caution her that if
their kids were present, child protective services would get
involved and “[her] kids are going to be taken away.”
After Amylyn mentioned that, to her knowledge, RJ had
never had a mental health evaluation, Roederer explained the
process for obtaining a mental inquest warrant. Johnson also
asked Amylyn to share a photo she mentioned of RJ holding
a gun to his head. Roederer and Johnson then returned to RJ.
ȱ ȱ Ĝȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ
admission for medical treatment to RJ, he became irate and
worried about the loss of his gun rights. Eventually, Johnson
convinced ȱ ȱ ȱ ȱ ȱ ȱ ¢ȱ ę¢ǯȱ
Johnson told RJ that he needed to “follow through” with their
agreement, and that if things escalated again, he would have
to turn over the photo. Johnson relayed the agreed upon mes-
sage to Emergency Medical Services (EMS) that RJ was in-
volved in a domestic dispute with his wife and wanted to vol-
untarily speak about his mental health issues. EMS then trans-
ported RJ to Clark Memorial Hospital at 12:43 A.M. RJ arrived
No. 23-1816 29
at the emergency department roughly ęȱ ȱ .
He remained there until his discharge at 3:41 A.M.
After EMS took RJ from the scene, Johnson asked Amylyn
if she was going to her parents’ house. Amylyn responded,
“Well, you – you said it’s a 24-hour thing right? For an evalu-
ation?” Johnson replied, “Yeah, so what are you going to do?”
Johnson explained that they took RJ’s gun and were going to
ȱ¢¢Ȃȱȱ ȱǯȱȱęȱǰȱ ȱȱ
Amylyn discussed her plan for the rest of the night:
Johnson: [W]hat’s the plan? Like, what --
Amylyn: I’m going to have to stay with my par-
ents, I guess.
Johnson: Okay. So are you going to go to your
house?
Amylyn: Well, tonight, yeah.
Johnson: Are you going to –
Amylyn: You said it’s a 24 hour?
Johnson: Yea. So are you going to get the guns
and everything when you go home?
Amylyn: Yeah, I’m going to take them with me
to my parents’.
About half an hour later, Amylyn called Johnson to report she
found a visible injury where RJ had hit her. Johnson told her
to come to the police station, where he could take a picture of
the injury. Consistent with his earlier directions, he again
asked Amylyn to retrieve the AR-15s and stay at her mother’s
house. At the station Amylyn again asked how long RJ would
ȱ ȱ ȱ ǯȱ ȱ Ĝȱ ǰȱ ȱ ǰȱ
30 No. 23-1816
informed her that they did not know, and Johnson again di-
rected her to take the opportunity to gather her things and go
to her parents’ house. When asked if she was going to go to
her parents’ house, Amylyn reportedly stated “yes.”
Amylyn never made it to her parents’ house. Sometime af-
ter the hospital discharged RJ, he returned home, murdered
Amylyn, and then killed himself.
¢¢Ȃȱ ȱ ęȱ ȱ ȱ ȱ Ĝǰȱ bringing
claims under 42 U.S.C. §§ 1983 and 1985. Relevant here, the
ȂȱȗȱŗşŞřȱȱȱȱĜȱȃĜ¢ȱȱ
Amylyn in a heightened state of special danger that [she]
would not otherwise have faced when they falsely told Am-
ylyn that RJ would be in the hospital for 24 hours and it was
safe to return home.”
ȱ Ĝȱ ȱ ȱ ¢ȱ ǯȱ ȱ ȱ
ȱȱȱĜȂȱȱȱȱȱǯȱ
On ȱ Ȃȱ ȗȱ ŗşŞřȱ ǰȱ ȱ ȱ ȱ ęȱ Ȭ
¢ȱȱȱĜȱȱ¢ȱȱȃȱ ȱ
ȱ ¢ȱ ȱ ȱ ȱ ě … ȱ ȱ Ĝȱ
Roederer and Johnson on notice that their actions violated
Amylyn’s constitutional rights.”
The Estate now appeals the dismissal of its § 1983 claim at
summary judgmentǰȱěȱtwo arguments. First, the Estate
argues the facts satisfy the narrow criteria to succeed on a
state-created danger claim under DeShaney v. Winnebago, 489
U.S. 189 (1989), and subsequent authorities. Second, the Estate
ȱ ęȱ ¢ȱ ȱ ȱ ȱ ȱ ȃȱ ȱ
clearly established that misleading victims about violent
threats” violates the victims’ due process rights.
No. 23-1816 31
II. State-Created Danger
I do not see the undisputed evidence giving rise to a viable
DeShaney state-created danger claim.
The Fourteenth Amendment’s Due Process Clause pro-
vides that “[n]o State shall … deprive any person of life, lib-
erty, or property, without due process of law.” U.S. CONST.
amend. XIV, § 1. This language “is phrased as a limitation on
the State’s power to act, not as a guarantee of certain minimal
levels of safety and security.” DeShaney, 489 U.S. at 195. That
is, the Due Process Clause is meant “to protect the people
from the State, not to ensure that the State protect[s] them
from each other.”
Id. at 196. Generally, “a State’s failure to
protect an individual against private violence simply does not
constitute a violation of the Due Process Clause.”
Id. at 197.
This court does recognize two exceptions to this general rule:
(1) the “special relationship” exception; and (2) the “state-cre-
ated danger” exception. See Doe v. Village of Arlington Heights,
782 F.3d 911, 916 (7th Cir. 2015); ęȱǯȱ¢,
165 F.3d 511,
516 (7th Cir. 1998).
The state-created danger exception “exists when the state
Ĝ¢ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ
danger the individual would not have otherwise faced.” Doe,
782 at 916 (cleaned up). But it is a “narrow one,” and applies
in “rare and often egregious” circumstances “where the state
creates or increases a danger to an individual.” Id. at 917.
Our court has recognized three principles to guide the in-
¢ǯȱǰȱȃȱǰȱ¢ȱȱĜȱǰȱȱȱȱ
increase a danger faced by an individual.” King v. E. St. Louis
Sch. Dist. 189, 496 F.3d 812, 818 (7th Cir. 2007). “Second, the
failure on the part of the state to protect an individual from
32 No. 23-1816
such a danger must be the proximate cause of the injury to the
individual.”
Id. “Third, … the state’s failure to protect the in-
dividual must shock the conscience.”
Id. If no basis exists in
the record to support any of these requirementsǰȱ ȱ ěȱ
cannot make out a state-ȱȱȱȱȱĴȱȱ
law.
ȱȱ ȱȱȱȱĜ¢ȱȱȱ
or increase danger to Amylyn, proximately cause Amylyn’s
death, or act in a manner that shocks the conscience.
A. Create or Increase Danger
The Estate argues that ȱĜȱȃȱȱȄȱȱ
Amylyn by informing her that RJ would be detained for
twenty-four hours and concealing information from EMS that
would have resulted in a statutory mental evaluation.
ȱ ęȱ ȱ ȱ ȱ Ȃȱ -created danger
analysis is “the key one.” Sandage v. Bd. of Comm’rs of Vander-
burgh Cnty., 548 F.3d 595, 599 (7th Cir. 2008). We must be wary
of interpreting this principle “so broadly as to erase the essen-
tial distinction between endangering and failing to protect” to
avoid circumventing DeShaney’s general rule. Doe,
782 F.3d at
917 (quoting Sandage,
548 F.3d at 599). “Increasing” danger
means “the state did something that turned a potential danger
into an actual one, rather than that it just stood by and did
nothing to prevent private violence.” Sandage,
548 F.3d at 600.
ȱǰȱȱȂȱĜǰȱȱȱȱȱȱ
victim from a position of safety to a position of danger.
Id. at
śşŞǯȱȱȱȱȱȱȱȱȃĜǰȄȱȃ ȱ
must then ask what new danger would have otherwise be-
fallen the victim.” Windle v. City of Marion,
321 F.3d 658, 662
(7th Cir. 2003). The burden rests on the Estate to show that the
No. 23-1816 33
Ĝȱȃȱȱȱǽ¢¢Ǿȱȱȱȱ¢ȱcreated
or made worse.”
Id. (emphasis in original). In many of our cases
applying the state-created danger exception, this has been the
line dividing successful and unsuccessful claims.
ȱ¢£ǰȱȱęȱȱȱȱ-created dan-
ger exception can be viewed as a spectrum from safety to dan-
ger. The exception can provide for liability only if an Ĝ’s
action moved ȱěȱup the scale toward danger. But li-
¢ȱȱĴȱȱȱĜȱȱȱěȱas is, or (es-
pecially) if the Ĝȱȱ ȱ ěȱ ȱ safety. To
ǰȱęȱȱĚȱȱȱ¡ǯȱSee Reed v. Gardner, 986
F.2d 1122 (7th Cir. 1993); ę,
165 F.3d 511; Paine v. Cason,
678 F.3d 500 (7th Cir. 2012); Windle,
321 F.3d 658; Doe,
782 F.3d
911.
Three of these cases show how law enforcement action
crosses the line into liability—Reed, ę, and Paine. In Reed,
ȱ ȱ ȱȱ ȱ Ĝȱ ȱ ȱ ¢ȱ ȱ
the state-created danger exception where they arrested a so-
ber driver and left an intoxicated passenger with the vehicle’s
keys, enabling the intoxicated passenger to drive from the
scene, cȱȱǰȱȱȱȱěǯȱşŞŜȱǯŘȱȱ
1127.
In ę, our court concluded that the actions of a law
ȱĜȱȱȱȱȗȱŗşŞřȱ¢ȱȱȱ
state-created danger theory. 165 ǯřȱȱśŗŞǯȱęȱȱȬ
formed the authorities that one of his coworkers was going to
steal electrical cord from their workplace. Id. at 513. Aware of
ȱ Ȃȱ ȱ ȱ ¢ȱ ȱ ǰȱ ęȱ Ȭ
peatedly—on four separate occasions over ten days—con-
ȱȱ ȱ¢ȱȱȱȱȱȱĴȬ
¢ȂȱĜȱȱȱȱȱelease a recording of his call
34 No. 23-1816
to law enforcement. Id. at 513–ŗśǯȱ¢ȱȱęȱȱ
ȱȱ ȱȱĜȱȱȱȱǰȱȱȱ
whether the recorded conversation of that call would be re-
leased. Id. On each occasion, law enforcement assured Mon-
ęȱȱȱ ȱȱȱǯȱId. Despite knowing that
ȱȂȱȱ ȱȱęȱȱǰȱȱ
Deputy Chief of Detectives, James Taylor, did nothing to pre-
ȱȱȱȱȱȱę’ multiple pleas
over many days. Id. at 514–ŗśǯȱęȂȱ ȱȱȱ
¢ȱȱȱǰȱ£ȱę’ voice, and, along with
ęȱǰȱȱęǯȱId. at 513, 515.
Paine involved the arrest of a woman by law enforcement
in a safe area and her subsequent release in a dangerous area.
678 F.3d at 509. The woman—while in an acute manic phase—
was arrested at Chicago’s Midway Airport and released by
police the next day near a public housing project with an “ex-
ceptionally high crime rate.”
Id. at 504. The police failed to re-
turn her cell phone, the woman did not know where she was,
and she was unwell.
Id. Five hours after her release, a man
raped her at knifepoint in a nearby apartment.
Id. at 505–06.
Ĵȱȱǰȱȱ ȱȱȱȱȂȱ
ǰȱȱȱǰȱȱěȱȱȱǯȱ
Id. at 506.
ȱ ȱ ȱ ȱ ǰȱ ¢ȱ Ĵȱ ȱ ȱ Ȭ
ȱ Ĝȱ ȃȱ ȱ ȱ ȱ ȱ ȱ ȱ
one,” Reed, 986 F.2d at 1127, or “created a danger [the victim]
would not have otherwise faced.” ę,
165 F.3d at 518.
Windle and Doe are on the other side of the liability line.
Windle evaluated whether a Marion, Indiana Police Depart-
ment sergeant violated a minor’s due process rights by failing
to intervene to protect her from molestation perpetuated by a
No. 23-1816 35
teacher. 321 F.3d at 660. The sergeant intercepted several cell
phone conversations between the minor and the teacher, the
content of which evidenced an ongoing sexual relationship.
Id. However, the sergeant did not intervene for two months.
Id. In DoeǰȱȱȱĜȱȱȱȂȱȱȱȬ
other state-created danger case. 782 F.3d at 913ǯȱȱĜȱȬ
sponded to a 9-1-1 call about a minor female drinking with a
group of teenage boys outside an apartment complex.
Id. She
was intoxicated; one of the group was holding her up when
ȱĜȱǯȱId. ȱĜȱȱȱȱęȱ
(which meant he did not discover that one of the boys was an
adult ȱǼǰȱȱě ȱȱĜǰȱȱ
allowed the group to leave with the girl.
Id. The group then
carried the girl into the complex’s laundry room, where the
probationer sexually assaulted her.
Id.
In these two cases, the state-created danger claim failed at
ȱĜȱȱȱȱȱĜȂȱȱȱȱ
“proactive[ly] creat[e] or exacerbat[e] [] danger,” Windle, 321
F.3d at 662. Nor were the victims “safe, or even considerably
safer,ȄȱȱȱĜȱǯȱDoe,
782 F.3d at 918. Rather,
the victims “[were] in actual danger already.”
Id.
ȱęȱȱaccurately set forth the requirements for
ȱ ȱ ȱ ȱ Ĝȱ ¢ȱ ȱ Ĝ¢ȱ ȱ ȱ ȱ
increase danger to ȱě. Before an Ĝȱs, danger to
the victim must be nonexistent or only potential. State-created
ȱ¢ȱĴȱ¢ȱ ȱȱȱȱȱ¡Ȭ
istent or potential danger into an actual one or create some
risk for the victim. Such was the case in Reed, ę, and
Paine. Where no new danger befalls the victim, such as in Win-
dle and Doe, state actors cannot be held liable.
36 No. 23-1816
This case is analogous to Windle and Doe and distinguish-
able from Reed, ę, and Paine. As in both Windle and
Doe—and unlike in Reed, ę, and Paine—ȱĜȂȱȬ
tions did not create a new danger to Amylyn or otherwise in-
crease an existing danger. “To create” danger means to bring
danger into existence. Likewise, “to increase” danger means
to escalate the likelihood that danger will occur. In the context
of private violence, the state must do something “that turn[s]
a potential danger into an actual one” rather than merely
standing by and doing nothing. Sandage, 548 F.3d at 600.
Johnson’s two brief replies (“yeah”/”yea”) to Amylyn’s
questions about the length of RJ’s detention did not create any
new dangers, increase the likelihood of danger, or otherwise
propel Amylyn into danger. She was already in grave danger
ȱȱĜȱȱȱȱ ȱ¢¢ȱȱ
RJ. As Amylyn herself recorded more than a week prior, RJ
had consistently abused her over the previous six to eight
months. The abuse escalated to the point where Amylyn shot
RJ in self-defense. Further, ȱĜrs left Amylyn (or at least
ĴȱȱȱǼȱȱȱĴȱȱȱȱȱȱ
on that night. By taking RJ’s gun and leaving Amylyn in pos-
session of hers, they deprived RJ of a means to escalate his
violent abuse and left Amylyn with recourse to self-defense.
ȱȱȱǰȱȱĜȂȱȱȱȱȱ
ȱȱĜȱȱȱ¢¢ȱȱǯȱȱȱ
¡ȱȱȱȱȱȱĜȱȱ ȱȱȱ
to comply with department policies, Ҥ 1983 protects plain-
ěȱ ȱ ȱ ǰȱ ȱ ȱ … de-
partmental regulations and police practices.” ȱǯȱȬ
cagoǰȱŚŝŘȱǯřȱŚŚŚǰȱŚśŚȱǻŝȱǯȱŘŖŖŜǼǯȱȱĜȂȱȱȱ
follow Charlestown Police Department policy “or even a state
No. 23-1816 37
law is completely immaterial as to the question of whether a
violation of the federal constitution has been established.” Id.
My colleagues conclude that Johnson created a danger to
Amylyn that she would not have otherwise faced because the
ĜȂ statements escalated a risk that she would encounter
an enraged RJ at their home with ready access to two AR-15s.
This takes too narrow of a view of the undisputed facts and
of the risk Amylyn had consistently faced for a long time.
Johnson did not make new and immediately dangerous the
already incendiary circumstances between RJ and Amylyn.
The possibility of deadly violence between these spouses had
existed for many months. Choking, threats to kill, a request to
help attempt suicide—Amylyn documented all this more
than a week before the officers ever spoke with the couple.
Before his discharge from the hospital and return home, RJ
had already shot a firearm at Amylyn a couple of times, and
she had returned fire in self-defense. In advance of these of-
ficers ever entering the picture, Amylyn had described in
writing RJ’s threats, abuse, use of firearms, and her fear for
her life.
RJ created the danger, not the actions of the officers. By
telling Amylyn that RJ would be held for 24 hours, the officers
did not affirmatively act to create or increase any danger to
Amylyn. The affirmative act requirement means that “state
actors may not disclaim liability when they themselves throw
others to the lions.” Pinder v. Johnson, 54 F.3d 1169, 1177 (4th
Cir. 1995) (citing ǯ ǯȱ¡ȱǯȱ¢ȱǯȱ,
914 F.2d 846,
849 (7th Cir. 1990)) (rejecting mother’s characterization of her
claim that officer’s false assurance—that it was safe to return
to work—and failure to charge ex-boyfriend was an affirma-
tive action resulting in her children’s death). But that
38 No. 23-1816
requirement does “not … entitle persons who rely on prom-
ises of aid to some greater degree of protection from lions at
large” to impose liability on state actors. Id. To decide other-
wise subjects “every representation by the police and every
failure to incarcerate” to liability. Id. at 1175. And it interprets
the state-created danger exception “so broadly as to erase the
essential distinction between endangering and failing to pro-
tect,” which we should not do. Sandage,
548 F.3d at 599.
Without a ȱȱ£ȱȱĜȂȱstatements to
¢¢ȱ ȱ Ĝȱ ȱ ȱ ȱ ȱ ȱ ȱ
risk of danger, the inquiry could end here. See King, 496 F.3d
ȱ ŞŗŞȱ ǻĜȱ ȱ Ȃȱ ¢ȱ ȱ ȱ
based solely on one prong of the state-created danger excep-
tion). To be complete, though, I next address the exception’s
second and third prongs.
B. Proximate Cause
The state’s failure “to protect an individual from [] a dan-
ger must be the proximate cause of the injury to the individ-
ual” for DeShaney ¢ȱ ȱ Ĵȱ ȱ ȱ -created
danger exception. Id. The individual must be a foreseeable
victim of the government’s acts. Buchanan-Moore v. County of
Milwaukee,
570 F.3d 824, 828 (7th Cir. 2009). “To satisfy the
proximate cause requirement, the state-created danger must
entail a foreseeable type of risk to a foreseeable class of per-
sons.” First Midwest Bank, Guardian v. City of Chicago,
988 F.3d
978, 988–89 (7th Cir. 2021) (citing Buchanan-Moore, 570 F.3d at
ŞŘŞǼǯȱȃȱ£ȱȱȱęȱȱȱȱȱ
ĜǯȄȱId at 989.
Analogizing to Reed and distinguishing Buchanan-Moore,
the Estate asserts it was foreseeable that RJ would kill Amylyn
No. 23-1816 39
ȱȱȱȱȱĜȂȱǯȱ ȱReed, proximate cause ex-
isted because “[t]he dangers presented by drunk drivers are
ȱ ȱ ęDzȱ ȱ ǰȱ ȱ ȱ ȱ ȱ
harm has a limited range and duration.” 986 F.2d at 1127. In
Buchanan-MooreǰȱȱȱȱȱȱěȱȱȱȬ
lege facts making out proximate cause where law enforce-
ment arrested and then released a mentally unstable individ-
ual who went on to murder a resident of the north Milwaukee
suburbs.
570 F.3d at 826. Because the complaint alleged no
facts that the County knew of a special danger to the resident,
rather than the public at large, and because the unstable indi-
vidual’s “mental illness and propensity for criminal acts ex-
isted without temporal boundaries,” the ěȂȱ ȱ
failed.
Id. at 828–29.
Like the dangers of drunk driving apparent in Reed, but
unlike the danger posed by the unstable individual in Bu-
chanan-Moore, the Estate posits “domestic violence involves a
¢ȱȱȱȱȱǰȱęǰȱȱȱȱȱȱ
scope to a foreseeable class of persons.” This argument is in-
correct twice over. First, though RJ’s abuse was certainly spe-
cęȱȱȱȱȱȱȱȱ—Amylyn—
RJ’s conduct was not so limited in time and scope as the Estate
characterizes it. The undisputed facts illustrate at least six to
eight months of verbal and physical abuse accentuated by RJ’s
mercurial temper and unpredictable actions. RJ posed a gen-
£ȱȱȱ¢¢ȂȱȱȱęȱȱȱȬ
ǯȱȱ¢¢ȱ¡ȱȱȱĴǰȱ Ȃȱȱȱ
was ongoing for many months, with no discernible end in
sight, so long as Amylyn remained with RJ. And as Amylyn
herself explained to Roederer and Johnson, RJ heightened his
physical and emotional abuse whenever Amylyn raised the
40 No. 23-1816
ȱȱĴȱǯ 3 RJ, the abuser, was exercising power
and control over Amylyn, and had done so for many months.
ȱĜȂȱȱȱ¢¢ȱȱȱ ȱȱȱ
cause of Amylyn’s death—RJ was.
Second, RJ’s conduct posed a danger more comparable to
that of the unstable individual in Buchanan-Moore. Again, RJ
had been perpetuating the abuse—violence; forcing Amylyn
into unwanted sexual situations with strangers; threatening
to kill her, her ex-husband, and her children; and property de-
struction—for many months. Like the unstable individual in
Buchanan-Moore, RJ’s abusive conduct had no temporal
boundaries. Therefore, the Estate cannot establish the proxi-
mate causation requirement.
C. Shock the Conscience
“Conduct … which shocks the conscience is that conduct
which may be deemed arbitrary in the constitutional sense.”
KingǰȱŚşŜȱǯřȱȱŞŗŞȱǻȱȱĴǼǯȱȱȱ
inquiry is “necessarily fact-bound,” the “emphasis on
whether conduct shocks the conscience points toward the tort
law’s spectrum of liability.” Id. at 818–19. “Only conduct
3 The United States Department of Justice defines domestic violence
as “a pattern of abusive behavior … that is used by one partner to gain or
maintain power and control over another intimate partner.”
https://www.justice.gov/ovw/domestic-violence (last viewed September
25, 2024). Domestic violence is not limited to physical abuse. The underly-
ing problem is the abuser’s need to exercise power and control. “Domestic
violence can be physical, sexual, emotional, economic, psychological, or
technological actions or other patterns of coercive behavior that influence
another person within an intimate partner relationship. This includes any
behaviors that intimidate, manipulate, humiliate, isolate, frighten, terror-
ize, coerce, threaten, blame, hurt, injure, or wound someone.” Id.
No. 23-1816 41
falling toward the more culpable end of the spectrum” shocks
the conscience. Id. at 819. This court has noted—though not
ę¢ȱ ȱ ȱ -created danger context—that such
conduct generally “involves the use of intentional force
against an individual’s person or the threat of such force.”
Robbin v. City of Berwyn,
108 F.4th 586, 591, (7th Cir. 2024) (col-
lecting cases).
This court has held that “when the circumstances permit
ȱ Ĝȱ ȱ ¢ȱ ȱ ȱ ȱ ȱ
their decisionsǰȱ ȱȱęȱȱĜȂs conduct conscience
ȱ ȱ ȱ ȱ ȱ ȱ ěȱ ȱ ȱ
rights of the individual.” King, 496 F.3d at 819. Where Ĝȱ
must make hurried judgments, “render[ing] reasoned delib-
eration impractical,” conduct shocks the conscience only
ȱ ȱ ȃǽǾȱ ȱ ȱ ȱ Ěȱ ȱ
injury.”
Id. Crucially, “the conduct must be more culpable
than mere negligence, which is ‘categorically beneath the
threshold of constitutional due process.’”
Id. (quoting County
of Sacramento v. Lewis,
523 U.S. 833, 849 (1998); see Est. of Her v.
,
939 F.3d 872, 877 (7th Cir. 2019) (same); see also Dan-
iels v. Williams,
474 U.S. 327, 331 (1986) (describing the due
process guarantee as historically applying only to “deliber-
ȄȱȱȱȱȱȱĜǼǯ
The Estate argues that “[t]he combination of the passage
of time, the repeated and knowing lies, and the continued dis-
ȱ ȱ ¢¢Ȃȱ ¢ȱ ȱ ȱ ȱ ěȬ
ence.” But the facts, viewed in the light most favorable to the
Estate, do not support that assertion. Over the course of more
ȱşŖȱǰȱȱĜDZȱ
separated and questioned Amylyn and RJ;
42 No. 23-1816
interviewed the 9-1-1 callers;
ęȱ ȂȱȱȱĴȱ¢¢ȱȱȱȱ
ęDzȱ
ȱ ¢¢ȱ ȱ ȱ ȱ ȱ ęȱ
from her house and to spend the night at her parents’
residence;
counseled her to do what was right to protect herself
and her children; and
encouraged her to obtain an emergency protective or-
der, twice suggested that she seek a divorce, and ad-
vised her of the process to obtain a mental inquest war-
rant.
These facts do not ȱȱĜȱȱdeliberately indif-
ferent toward Amylyn’s personal safety and security. Their
consistent reassessment of the information they collected un-
dercuts a ȱȱȱěǯȱȱ¡ǰȱ
once Johnson informed Roederer that RJ had previously tried
to burn the house down and ȱĜȱdiscussed RJ’s mental
state, they decided they would not take RJ back to the house
where the AR-15s were located.
Johnson’s Ĝȱ responses to Amylyn’s question
about the length of RJ’s detention were at most negligent,
based on his understanding that Amylyn would go to her par-
ents’ house that night. ȱȱȱȱȱĜȱ
to meet the high bar of action that shocks the conscience. King,
496 F.3d at 819.
* * *
If the Estate cannot satisfy just one of the three elements
underlying the state-ȱ ȱ ¡ǰȱ ȱ Ĝ
No. 23-1816 43
cannot be held liable. Because they did not act to create or in-
crease danger, proximately cause death, or act in a manner
that shocks the conscience, the district court’s grant of sum-
¢ȱȱȱȱĜǯ
III. ęȱ ¢
Even if the Estate could succeed on the DeShaney question,
the Ĝȱ ȱ ȱ ȱ ęȱ ¢ because they
did not violate a clearly established right. “The doctrine of
ęȱ¢ȱȱȱĜȱȁȱȬ
ity for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting ȱǯȱĵ,
457 U.S.
800, 818 (1982)). “ęȱ¢ȱ … the need to
ȱȱĜȱȱ ȱ¢ȱ¡ȱ ȱȬ
¢ȱȱȱȱȱȱĜȱȱǰȱ
distraction, and liability when they perform their duties rea-
sonably.”
Id.
ȱ ȱ ȱ ȱ ęȱ ¢ȱ ¢DZȱ
ȃęǰȱ ȱȱȱǰȱȱȱȱȱȱȬ
ȱȱȱěǰȱȱȱȱȱȱȱ
right; and second whether the federal right at issue was
clearly established at the time of the alleged violation.” Smith
v. Finkley, 10 F.4th 725, 737 (7th Cir. 2021). Even assuming the
ĜȂ actions violated Amylyn’s constitutional rights, the
federal right at issue was not clearly established at the time of
the alleged violation.
It is the Estate’s burden to demonstrate the existence of a
clearly established right at the time of the alleged violation.
ȱ ȱ ǯȱ , 868 F.3d 629, 633 (7th Cir. 2017). “A
44 No. 23-1816
constitutional right is clearly established if the right in ques-
ȱ ȱ Ĝ¢ȱ ȱȱȱȱĜȱ ȱȬ
derstand that what he is doing violates that right.” Finkley, 10
F.4th ȱ ŝŚŘȱ ǻȱ ȱ ĴǼǯȱ ȃȱ ¢ȱ Ȭ
ȱȱȱȱęȱ ȱę¢ǰ”
id. (citing City
of Escondido v. Emmons,
568 U.S. 38, 42 (2019)) (cleaned up), a
requirement the Supreme Court has made clear “[o]ver and
over.” Weiland v. Loomis,
938 F.3d 917, 919 (7th Cir. 2019) (col-
lecting cases).
ȱȱ ȱȱȱȱęȱ ȱȱȬ
ȱę¢ǰȱȃ ȱ¢£ȱ ȱȱ¢ȱȬ
ȱȱȱȱǰȱȱȱ ȱȱęȱ¢ȱ
established law at too high a level of generality.” Finkley, 10
F.4th at 742 (cleaned up). “[A] defendant cannot be said to
have violated a clearly established right unless the right’s con-
ȱ ȱĜ¢ȱęȱȱ¢ȱȱĜȱȱ
the defendant’s shoes would have understood that he was vi-
olating it.” ěȱǯȱ,
572 U.S. 765, 778–79 (2014). “In
other words, existing precedent must have placed the statu-
tory or constitutional question confronted ¢ȱȱĜȱȬ
yond debate.”
Id. (quotations ĴǼDzȱsee also Doe,
782 F.3d
at 915 (“[T]ȱěȱȱȱeither that a court
had upheld the purported right in a case factually similar to
the one under review, or that the alleged misconduct consti-
tuted an obvious violation of a constitutional right.”). That is,
ȱȱȱȃȱȱęȱȱ ȱȱȱ
of the case at hand.” Doxtator v. O’Brien,
39 F.4th 852, 863 (7th
Cir. 2022) (citing White v. Pauly,
580 U.S. 73, 79 (2017) (per cu-
riam)).
To the Estate, ȱ Ĝȱ ȱ ȱ ¢ȱ ȱ
right, contending “[t]here is authority within this circuit and
No. 23-1816 45
ȱȱȱȱȱ¢ȱȱ¢ȱěȬ
ent.” The Estate cites Paine; ȱǯȱ ȱȱ,
48
F. App’x 925 (6th Cir. 2002); ¢ȱǯȱ¢ȱȱę,
439
F.3d 1055 (9th Cir. 2006); and Irish v. Fowler,
979 F.3d 65 (1st
Cir. 2020). But these authorities do not support a conclusion
ȱȱĜȱȱ¢¢Ȃȱ¢ȱȱǯ 4
My colleagues read ę as “render[ing] it clearly estab-
ȱȱȱȱȱȱȱĜȱȱȱȱȱ
the state-created danger doctrine if he recklessly and repeat-
edly lies to a person about the danger that person faces from
ȱęȱȱȱȱ¢ǯȄȱI do not read ęȱto
provide such clarity.
First, ęȱ is not “particularized to the facts of [this]
case.” Pauly, 580 U.S. at 79. Before the release of the tape, Mon-
ęȂȱ¢ȱȱȱȱ ȱ¢ȱȱȱȬ
ous coworkers. The release of the tape recording unmasked
ęǯȱ ǰȱ ǰȱȱĜȂȱȱȱȱȱȬ
ylyn of anonymity. She was known to RJ and the subject of his
ȱ ȱȱȱĜȱǯ
ę is described as a case about reckless and repeated
lies. But here, Johnson’s statements to Amylyn about the
4 Robinson and Irish may be disposed of immediately. Robinson is an
unpublished Sixth Circuit opinion reversing a district court’s grant of a
motion to dismiss a state-created danger claim. 48 F. App’x at 925. That
court later affirmed the district court’s grant of summary judgment to the
defendant law enforcement officers, in part because they were not on no-
tice that their conduct violated a clearly established right. Robinson v.
ȱȱ, No. 04-1117, slip op. at 10–11 (6th Cir. July 20, 2005).
And the First Circuit’s Irish opinion postdates the events of this case, so it
cannot aid the clearly established inquiry. See Brosseau v. Haugen,
543 U.S.
194, 200 n.4 (2004).
46 No. 23-1816
length of RJ’s absence were negligent at most, not reckless.
His statements also were not “repeated” like the promise not
to release the tape in ęȱwas repeated. See 678 F.3d at 513–
15 (four separate promises over ten days). Johnson gave two
one-word responses within a lengthy discussion, during
ȱȱĜȱȱ¢¢ȱȱȱȱȱȂȱ
house that night. And both representations were made during
a roughly ninety-minute interaction among ȱĜǰȱȬ
ylyn, and RJ.
Second, ę rests on uncertain ground. This court has
noted that ę “may well have been superseded by” the
Supreme Court’s decision in ȱȱȱȱǯȱ £,
545 U.S. 748. Sandage,
548 F.3d at 599.
In SandageǰȱȱȱȱȱȱěȂȱȬ
cedents while on work release as part of a four-year robbery
sentence. Id. at 596. Twice previously, one of the decedents
contacted police to report that Moore was harassing her.
Id.
ȱěȱȱ¢ȱĜ “claim[ing] that the [sher-
ěȂǾȱȂȱȱȱȱȱȱȱȱȬ
ment by revoking Moore’s work-release privilege and reim-
prisoning him deprived their decedents of their lives without
due process of law.”
Id.
As part of its analysis, this court looked to Castle Rock. That
case involved “police refus[ing] to enforce a domestic-abuse
restraining order, despite repeated demands by the woman
against whose husband the order was directed, and he mur-
dered the couple’s three children.” Id. at 597. Answering the
“technical question” of “whether the State of Colorado had
created a property right in the enforcement of restraining or-
ders,”
id., the Supreme Court held that the answer was no.
Castle Rock,
545 U.S. at 768. Additionally, the Court noted that
No. 23-1816 47
ȃȱęȱȱȱȱ¢ȱ¢ȱȱȱȱȬ
one else arrested for a crime generally does not trigger pro-
tections under the Due Process Clause, neither in its proce-
dural nor in its ‘substantive’ manifestations.”
Id.
As this court saw, the ěȂȱȱ Sandage was “sim-
ilar” to that raised in Castle Rock: “that the county was consti-
tutionally required to revoke Moore’s work release and return
him to custody.” 548 F.3d at 597. It would have been the same
case as Castle Rock, “if Moore had not been serving a sentence
but had threatened [the decedent] and she had complained to
ȱ ěȂȱ ǰȱ ȱ ȱ ȱ ȱ ȱ
Ĵȱȱȱ¢ȱǰȱȱȱȱȱȱȱȬ
guided exercise of his prosecutorial discretion not to order
Moore arrested and charged.”
Id.
Our court also distinguished ę. Unlike that case,
ȱ ȃȱ ȱ ȱ ȱ ȱ ȱ ęȄȱ ¢ȱ Ȭ
leasing the tape recording, in Sandage “the danger was created
by Moore, and by Moore alone.” Id. at 599. Based on that rea-
ǰȱ ȱ ȱ Ĝȱ ȱ ȱ Ȃȱ ȱ ȱ
ěȂȱȱȱȱȱȱȱǯȱId. at 600. Critically,
in its conclusion the court noted “after Castle Rock a broken
promise—ȱȱȱȱ ȱȱȱěȱȱȱ
case and the present ěȱ (though there was
more in ę—the handing over the tape to the mur-
derer)—may very well not be enough.”
Id. That should be
true hereǯȱ ȱ ȱ ȱ ęȱ ¢ȱ ȱ ȱ ȱ ȱ
panel majority is a false promise of security. After Castle Rock,
48 No. 23-1816
such an act likely ȱȱȱȱȱȱęȱ
immunity. 5
Next, the Estate urges that Paine and this case are the same
because the ĜȂ misrepresentations to Amylyn made her
“more vulnerable than she otherwise would have been.” Paine
ȃ¢ȱ ȱ ȱ ȱ ȱ ǰȱ ȱ ęȬ
tion, increase a person’s risk of harm violate the Constitu-
tion.” 678 F.3d at 510. But as discussed above, Paine is not suf-
ę¢ȱ to this case. TȱĜȱhere did not make
Amylyn more vulnerable to any danger posed by RJ. Amylyn
was in grave danger before and after ȱĜȂȱǯȱ
The Estate’s reliance on Paine is also misplaced because it
Ěȱȱȱȱȱȱȱ¢, of which the Supreme
Court has repeatedly warned. Mullenix v. Luna, 577 U.S. 7, 12
(2015) (citing Ashcroft v. al-Kidd,
563 U.S. 731, 742 (2011)); see
also City of ȱǯȱ,
595 U.S. 9, 11 (2021) (per curiam);
Kisela v. Hughes,
584 U.S. 100, 104 (2018) (per curiam). Paine
does not ȱȱȱȱ ȱȱȱȱĜȱ
5 For similar reasons, Kennedy does not help the Estate. There, a police
officer assured the plaintiff that she would be given prior notice of police
contact with the family of the boy who had been accused of molesting the
plaintiff’s daughter. Kennedy, 439 F.3d at 1058. After law enforcement of-
ficers spoke with the boy’s family about the allegations, they made the
additional assurance to the plaintiff that police would patrol their neigh-
borhood. Id. The boy broke into the home and shot the victim and her hus-
band. Id. The Ninth Circuit affirmed the district court’s recognition that
the officer in that case was not entitled to qualified immunity. But it did
so in mitigating fashion: “we do not rest our judgment that [the officer]
affirmatively created a danger on [the] assurance [that the police would
patrol the neighborhood] alone.” Id. at 1063. Though “an additional and
aggravating factor,” the assurance alone was not enough to constitute a
due process violation. Id.
No. 23-1816 49
ȱ ȱ Ĝȱ ȱ ȱ¢¢Ȃȱ ȱ ȱ
RJ’s hospitalization violated her constitutional rights. Cases
ȱęȱ¢ȱȱȱȱproblematic law
enforcement conduct support this conclusion. See, e.g., Doe,
782 F.3d at 915, 918 (holding it not clearly established that call-
ȱěȱȱȱĜǰȱȱ¢ȱȱȱȱ
that the scene was clear, resulted in a violation of a constitu-
tional right of a victim of private violence).
The cases the Estate cites do not place the constitutional
question beyond debate. If a constitutional right of Amylyn’s
was violated, it was not clearly established when ȱĜȱ
responded to this domestic violence episode. As a result,
ęȱ¢ȱȱȱĜȱȱȗȱŗşŞřȱ¢ǯ
IV. Conclusion
I end where I began: Amylyn was tragically murdered by
her husband RJ. The rule is that the state has no duty to pro-
tect citizens from private violence. The state-created danger
doctrine is a narrow exception to that rule. This decision
sends thȱȱȱĜȱ ȱto a jury when the un-
ȱȱȱȱȱ¢ȱȱĴȱȱȱȱ
limits of this doctrine. And it does so notwithstanding the
ȱȱȱęȱ¢ǯȱ
50 No. 23-1816
SCUDDER, Circuit Judge. This case is difficult on many levels
and, in the end, I find myself split on the conclusions reached
by my colleagues. I agree with Judge Ripple that the claim
against Officer Te’Juan Johnson’s estate should proceed to
trial. On the other hand, I agree with Judge Brennan and the
district court that qualified immunity defeats the claim
against Officer Jonathan Roederer. Above all else, this case
presents a tragic example of the risks posed by domestic vio-
lence and the consequences of law enforcement’s failure to
appreciate those risks. No matter how many times I review
the record, the same conclusion rushes to mind: police depart-
ments ought to prioritize training on responses to domestic
violence.
I
Whether the Fourteenth Amendment’s Due Process
Clause precludes state actors from creating danger to a person
remains unanswered by the Supreme Court. We know for cer-
tain state actors do not shoulder an affirmative duty to protect
individuals from dangers posed by third parties. That is the
holding of DeShaney v. Winnebago, 489 U.S. 189 (1989). But
what the Justices have yet to answer is whether the Due Pro-
cess Clause, while disallowing duty-to-protect claims, allows
a claim in facts and circumstances where state actors create
the danger that proximately causes harm to an individual.
Circuit courts have struggled with the question in DeShaney’s
wake. See, e.g., Est. of Romain v. City of Grosse Pointe Farms,
935
F.3d 485, 493–96 (6th Cir. 2019) (Murphy, J., concurring) (iden-
tifying unresolved questions about the validity of the state-
created danger doctrine).
Our court is among those that have recognized a claim for
state-created dangers. See, e.g., Reed v. Gardner, 986 F.2d 1122,
No. 23-1816 51
1127 (7th Cir. 1993); Monfils v. Taylor,
165 F.3d 511, 518 (7th
Cir. 1998); Paine v. Cason,
678 F.3d 500, 509–11 (7th Cir. 2012).
Duty bound to follow that precedent, I see it applying in dif-
ferent ways to the two officers in question.
When viewing the facts, as we must, in the light most fa-
vorable to Amylyn Slaymaker, a jury could find that Officer
Te’Juan Johnson affirmatively placed her in more danger than
she faced before law enforcement intervened. Officer Johnson
reached an agreement with Amylyn’s husband, RJ: if RJ vol-
untarily went to the hospital, Officer Johnson would not have
him committed involuntarily. But when Amylyn asked
whether her husband had been placed under a 24-hour men-
tal health hold, Officer Johnson twice answered in the affirm-
ative. Knowing that Amylyn planned to go home, Officer
Johnson’s misrepresentations—the false sense of safety he
conveyed—created a risk that Amylyn would be at the house
and caught off-guard when RJ returned and had access to his
AR-15s. This is not a risk Amylyn would have faced had she
known RJ was free to leave the hospital at a time of his own
choosing.
To violate clearly established law—the second prong of
the qualified immunity analysis—“existing precedent must
have placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). I agree
with Judge Ripple that our decision in Monfils supplies the
relevant precedent here. Monfils clearly established that a po-
lice officer can be liable under the state-created danger doc-
trine if he makes false promises about the danger a person
faces from an identified and violent third party. See
165 F.3d
at 518. Like the officer’s false assurances to Thomas Monfils,
Officer Johnson’s false assurances rendered Amylyn more
52 No. 23-1816
vulnerable to a danger than she otherwise would have been
had he told her the truth. With these findings available to a
jury, Officer Johnson is not entitled to qualified immunity and
the suit against his estate should proceed.
But not so for Officer Roederer. The record shows that his
actions did not add to the risk of harm already created by Of-
ficer Johnson. Officer Roederer made no representations to
Amylyn regarding how long her husband would be in the
hospital or whether it was safe for her to return home. Yes,
Officer Roederer was present for Officer Johnson’s conversa-
tions with both Amylyn and RJ. But his failure to correct any
representations Officer Johnson made to Amylyn is insuffi-
cient because “mere inactivity by police does not give rise to
a constitutional claim.” Rossi v. City of Chicago, 790 F.3d 729,
735 (7th Cir. 2015). And Officer Roederer’s statements to RJ
merely repeated back the arrangement Officer Johnson had
previously contrived about going to the hospital voluntarily.
The evidence of Officer Roederer’s personal involvement
falls short of allowing a jury to find that he created a danger
to Amylyn. Even if his acts or omissions contributed to her
tragic death, no jury could reasonably conclude that he put
Amylyn in a position of danger she would not have otherwise
faced or that his actions violated a clearly established right.
Indeed, on issues of qualified immunity, close calls go to the
defendant. See Kikumura v. Turner, 28 F.3d 592, 597 (7th Cir.
1994) (underscoring that “the point of qualified immunity…is
that government officials are not, as a rule, liable for damages
in close cases”). So I agree with Judge Brennan that qualified
immunity shields Officer Roederer from liability.
No. 23-1816 53
II
This case should sound the equivalent of a five-alarm fire
for police departments to the risks of domestic violence. In my
view, Officer Johnson’s response to what he encountered dur-
ing the early morning hours of July 19, 2019 remains shocking
in the extreme. When you read the facts, you can see the tragic
ending coming from a mile away with about 100% certainty.
No doubt domestic violence incidents are among the most
challenging circumstances that police officers encounter. And
federal judges are in no position to advise police departments
on how best to respond to 911 reports of domestic violence.
But respond they must. And this case shows just how a police
officer can take an already dangerous situation and make it
worse—fatally so. The district court got it right when observ-
ing that a case like this should cause police departments to
reevaluate their training related to domestic violence encoun-
ters. Under no circumstance should a law enforcement officer
act in a way that escalates the danger faced by someone in the
vulnerable and trapped position that Amylyn Slaymaker
found herself. See Br. of Amicus Curiae Everytown for Gun
Safety and the Indiana Coalition Against Domestic Violence
in Support of Pl.-Appellant, ECF No. 15 (collecting social sci-
ence research on the risk factors of domestic violence).
Judge Brennan’s opinion emphasizes that Amylyn was in
grave danger before the officers intervened. I could not agree
more. Amylyn endured ongoing, violent abuse at the hands
of her husband for many months. Nobody could plausibly say
that RJ did not pose a serious threat to Amylyn’s life on July
19. While accurate, that observation is incomplete and in no
way resolves the question before us.
54 No. 23-1816
It was Officer Johnson’s response that escalated the risk to
Amylyn’s life. He agreed to allow RJ to voluntarily go to the
hospital while affirmatively misleading Amylyn about that
fact. A jury could easily find that Officer Johnson’s duplicity
left her vulnerable to new risk—more immediate and acute
risk. These circumstances existed because of Officer Johnson’s
actions: yes, Amylyn was in an abusive marriage, but she had
no idea that Officer Johnson had cut a deal with RJ that would
allow him to return home in less than 24 hours, find her there
alone, and murder her with one of the guns known to be in
the house.
If the state created danger doctrine reflects sound law, it
fits this case to a T: a jury could find that Officer Johnson re-
sponded to the undeniably difficult situation he encountered
on July 19 by putting Amylyn at a very high risk of losing her
life. The case against Officer Johnson’s estate should go to
trial.