00-2787 Dykema v. Skoumal

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“Dykema was experienced in drug transactions, a business he knew to be dangerous. He claimed he knew how to operate in drug matters better than the police. He viewed himself as an instructor from whom the police could learn. He was a drug dealer of his own free will and was not forced into drug dealing by MANS. Dykema decided to cooperate with MANS as requested, but for reasons he perceived as for his own benefit – for cash, beer, and to get his driver’s license back. He was not in police custody. Stepney, who shot Dykema, qualifies as a ‘private actor.’ Stepney was not a target of any MANS sting operation, and no evidence ties him to Dykema and the sting operation at issue. Dykema and Stepney both thought they might have noticed each other on some prior occasion, but were not known to each other. They were just two participants in the drug world operating on common drug turf. They appear to have been drug competitors. No drug transaction was contemplated on the day of the shooting because of Dykema’s drinking. Although Skoumal advised Dykema to try to “smooth things over” with Dantzler, no one in MANS gave Dykema instructions as to how, whether in person or by phone, or when he should try to smooth things over with Dantzler. Nor were any time limitations imposed by MANS. The details were left to Dykema and his own judgment as an experienced drug operator. If he thought the situation was getting too dangerous, he could withdraw as he had before. At that time he had voluntarily resumed his undercover work. He knew how to quit. His relationship with MANS did not amount in any way or degree to his being in the custody of MANS. The injury to Dykema was unfortunate, but it is general knowledge that drug dealers are often armed to protect their drugs and money from competitors. MANS had nothing to do with the particular event of Stepney shooting Dykema. MANS was not aware that Dykema was in any danger from Stepney. MANS was not responsible for Dykema’s injuries. Dykema assumed the drug dealing risks… Mere speculation and argument cannot supply the factual basis for an exception to DeShaney. Nor has there been any assertion that MANS advised Dykema that they would protect him, nor did Dykema ask for protection.”

Reversed.

Appeal from the United States District Court for the Northern District of Illinois, Holderman, J., Harlington Wood, J.