Due Process Violation

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7^th Circuit Court of Appeals

Case Name: The Estate of Swannie Her, et al. v. Craig Hoeppner, Parks Director for the City of West Bend, et al.

Case No.: 18-3524

Officials: KANNE, SYKES, and BRENNAN, Circuit Judges.

Focus: Due Process Violation

A June afternoon in Wisconsin took a tragic turn when six-year-old Swannie Her was found unresponsive on the bottom of a man-made swimming pond operated by the City of West Bend. She never regained consciousness and died a few days later.

Swannie’s estate, her mother, and her siblings filed suit alleging that she died as a result of federal constitutional and state-law violations by the West Bend Parks Director, the seven lifeguards who were on duty, and the City. The constitutional claim arises under 42 U.S.C. § 1983 and alleges a deprivation of life without due process in violation of rights secured by the Fourteenth Amendment. The theory of the claim rests on two contentions: (1) the City’s swimming pond is a state-created danger and (2) the defendants acted or failed to act in a way that increased the danger. A magistrate judge entered summary judgment for the defendants, ruling that the evidence is insufficient to permit a reasonable jury to find a due-process violation premised on a state-created danger. The judge relinquished jurisdiction over the state-law claims, setting up this appeal.

We affirm. Liability for injury from a state-created danger is an exception to the general rule that the Due Process Clause confers no affirmative right to governmental aid. DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). Our caselaw construes this exception narrowly, and the judge correctly concluded that this case falls outside its boundaries. No reasonable jury could find that the defendants created a danger just by operating a public swimming pond or that they did anything to increase the danger to Swannie before she drowned. Nor was their conduct so egregious and culpable that it “shocks the conscience,” a necessary predicate for a court to find that an injury from a state-created danger amounts to a due-process violation.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.