Argued: September 26, 2018
Appeals from the United States District Court for the
District of Maryland, at Baltimore. Catherine C. Blake,
District Judge. (1:12-cv-00192-CCB).
Johnson Hansel, III, HANSEL LAW, P.C., Baltimore, Maryland,
Elisabeth Susanne Walden, BALTIMORE CITY LAW DEPARTMENT,
Baltimore, Maryland, for Appellees.
L. Cox, THE COX LAW CENTER, LLC, Emmitsburg, Maryland, for
Suzanne Sangree, Senior Public Safety Counsel, Daniel C.
Beck, Chief of Police Legal Affairs, Kara K. Lynch, Assistant
Solicitor, BALTIMORE CITY LAW DEPARTMENT, Baltimore,
Maryland, for Appellees.
GREGORY, Chief Judge, and NIEMEYER and AGEE, Circuit Judges.
Williams stabbed his pregnant wife, Veronica ("Mrs.
Williams"), outside a Baltimore, Maryland, courthouse
where she had just obtained a protective order against him.
Mrs. Williams and her unborn child died from their injuries a
few days later. Carlin Robinson, the Personal Representative
of Mrs. Williams' estate and Guardian and Next Friend of
her children, and Eunice Graves, Mrs. Williams' mother,
filed federal and state claims against Baltimore City Police
Department (BCPD) officer Daniel A. Lioi. The Complaint
alleged that Lioi was responsible for Mrs. Williams'
death because he enabled Williams to postpone his
self-surrender on a misdemeanor arrest warrant, which
provided Williams the opportunity to murder his wife.
previously affirmed, on interlocutory appeal, the district
court's denial of Lioi's motion to dismiss the claims
against him as being barred by qualified immunity.
Robinson v. Lioi, 536 Fed.Appx. 340 (4th Cir. 2013).
Thereafter, Robinson and Graves (collectively
"Robinson") amended their complaint to add another
BCPD officer, Major Melvin Russell, as a defendant. Following
discovery, the district court granted summary judgment to
both officers, Robinson v. Lioi, No.
1:12-cv-00192-CCB, 2017 WL 2937568 (D. Md. June 30, 2017),
concluding that the evidence was not sufficient to allow a
verdict in Robinson's favor and, in the alternative, the
officers were entitled to qualified and public official
now appeals. For the reasons set forth below, we affirm the
judgment of the district court.
reviewing the propriety of granting summary judgment, we
consider the facts in the light most favorable to the
nonmoving party, here, Robinson, and draw all reasonable
inferences in her favor. See Doe v. Rosa, 795 F.3d
429, 436 (4th Cir. 2015).
summer of 2008, Williams met Deputy Major Lioi and Major
Russell of the BCPD's Eastern District in the course of
Williams' role as the president of a Baltimore-area
community association. The men interacted at a handful of
civic events that summer and fall.
events forming the basis of Robinson's claims occurred
over a nine-day period from Sunday, November 9, 2008, when a
misdemeanor arrest warrant was issued for Williams'
arrest, to Monday, November 17, 2008, when Williams fatally
stabbed his pregnant wife.
evening of Sunday, November 9, Mrs. Williams obtained a
temporary protective order against Williams based on an
assault that occurred the prior month in which he physically
restrained her and cut off some of her hair. Based on the
same incident, the Baltimore City Court Commissioner also
issued an arrest warrant for Williams charging him with the
misdemeanor offenses of second-degree assault and
unauthorized removal of property.
after the warrant issued, a police dispatcher notified BCPD
Officer Jose Arroyo that a misdemeanor warrant was ready to
be picked up from the Court Commissioner's
office. Had Arroyo followed normal procedure, he
would have taken the warrant directly to the "hot
desk" at Central Records to have it logged into the
police computer database. J.A. 575. Instead, Arroyo took the
warrant to the BCPD's Eastern District office. Arroyo
indicated that he sometimes bypassed the normal procedure if
a supervisor ordered him to do so, but he could not remember
whether anyone had issued such an order regarding this
warrant. Nor could he provide any explanation for why he
deviated from the procedure this time.
Arroyo arrived at the Eastern District, an unidentified
person instructed him to leave the arrest warrant on the desk
handling the Sector 1 region. Arroyo could not recall who
told him to leave the warrant there, or why, but the address
listed on the warrant for Williams was located in Sector 1.
Arroyo knew both Lioi and Russell, and when he was
specifically asked if Russell or Lioi had instructed him to
bring the warrant to the Eastern District, Arroyo testified
that he "d[id]n't recall." J.A. 578. He then
clarified that, given the chain of command, he would not have
received an order directly from either officer and that he
"d[id]n't know" whether either of them had
given such an instruction to someone else. J.A. 579-80.
point over the weekend, Williams contacted Russell and was
concerned that his wife "got papers on him." J.A.
706. Williams asked Russell if he could find out what
happened. In his deposition, Russell stated that he
first learned of the arrest warrant when he returned to work
on Monday or Tuesday (November 10 or 11) and Officer Adrienne
Byrd showed it to him. Russell had observed Byrd holding the
warrant for Williams in her hands, but he testified that he
never took physical possession of the warrant at that time or
later spoke with Williams, confirming that there was a
warrant for his arrest and encouraging him to turn himself
in. J.A. 451-54, 707. Russell advised that Williams should
not wait to turn himself in because if he were arrested on a
Friday and his arraignment were to be delayed, he could be
detained over the weekend.
on Monday, police officers attempted to arrest Williams at
his residence, but were unsuccessful. J.A. 112, 451-52, 485,
707-08, 762, 815. Russell said he personally went by
Williams' residence to arrest him "once, maybe
twice," but it was dark and no one answered the door.
Wednesday (November 12), Williams texted Russell to say that
he would like to turn himself in the following Tuesday in
order to have time to raise sufficient bond money. Russell
called Williams and encouraged him to turn himself in without
delay. J.A. 451-52, 482-83. Later that afternoon, Russell
informed Lioi-who was the next senior officer in the Eastern
District-that Williams would be turning himself in the next
evening. Russell asked Lioi to oversee the process because
Russell was not scheduled to work Thursday
Thursday afternoon (November 13), Williams texted Russell
that he was "running behind," but "should be
there in 15." J.A. 480. Russell replied, "K."
J.A. 480. Both men stated in their depositions that the texts
referred to Williams self-surrendering, but Williams did not
show up at the station that afternoon.
at about 9:00 p.m., Williams arrived at the Eastern District
to self-surrender. Lioi called Central Records to get the
arrest warrant and learned that it had not been logged into
their database and they did not have the warrant. Lioi
enlisted help in searching for the warrant at the Eastern
District and in calling other possible locations, but no one
could locate it. For example, Lioi called Russell to see if
he could help them locate the warrant, but Russell did not
answer his phone, so Lioi left him a voice mail message. And
when Lioi called the court commissioner, he was told
"that the warrant possibly could be at the North Avenue
Courthouse," which he also tried to reach, but it was
closed for the night. J.A. 562.
concluding that they were not going to promptly locate the
arrest warrant, Lioi allowed Williams to leave the Eastern
District station so long as he agreed to return once they
found the warrant. Williams agreed and asked if he could
self-surrender after the weekend. He mentioned having several
things to do and not wanting to risk being detained if the
arraignment was delayed on Friday. It's not clear from
the record what agreement Lioi and Williams reached at that
time, but Williams departed the police station.
thereafter, Russell returned Lioi's call and recommended
that Lioi contact Byrd because he had seen her with the
warrant earlier that week and believed she had attempted to
arrest Williams. In addition, Russell suggested that Lioi
search Byrd's patrol car for the paperwork.
Russell's call, Sergeant Todd Tugya, who was helping Lioi
search for the warrant, telephoned Byrd. She "advised
that she did, indeed, have possession of the warrant . . .
and that she had attempted to serve it. However, she advised
that she left the warrant in the visor of her patrol car
because she intended to continue her attempts to serve it on
her next shift." J.A. 112. She told Tugya which patrol
car she had used, so that they could search it. Just after
midnight on Friday (November 14), officers located the
warrant over the visor of Byrd's patrol car.
that day, Lioi "confirmed" with Russell that
Williams could self-surrender after the weekend. J.A. 277.
Russell indicated to Lioi that was "fine." J.A.
277. Lioi also called Williams to let him know they had found
the warrant and he needed to turn himself in. Williams
indicated he would self-surrender on Tuesday, and Lioi
that evening, Williams contacted Lioi and said that he was
meeting with his lawyers to prepare for his criminal case.
Williams suggested that having a letter explaining that he
had attempted to self-surrender, but that the warrant could
not be located, may help him in court. Lioi agreed to write
the letter because those were "the facts." J.A.
285. His letter explained that Williams had been "very
cooperative and willing to turn himself in" but that
Central Records did not have the warrant on file and had
"advised that the warrant was being held at North Avenue
Court House, which was closed for the night." J.A. 631.
later asked Lioi for a second letter because his lawyers had
discovered an arrest warrant from another Maryland locality
charging a "Cleaven Williams" with offenses
unrelated to those known to be pending against him. Williams
asked Lioi to write about that warrant, too; Lioi provided a
letter stating that he had reviewed the other arrest warrant
and observed that it contained minimal identifying
information about the named individual, referenced an address
that "[t]o [Lioi's] understanding[, ] [Williams] had
never resided at," and that the wanted individual
"should not be considered to be [Williams] based on the
name alone." J.A. 632. In texting about the letters,
Williams asked Lioi for "an overview of the night"
and "not too much detail." J.A. 101. When Lioi
agreed, Williams expressed his appreciation, texting
"There is a method to my madness:/," to which Lioi
replied, "That's what I'm afraid of." J.A.
On Monday afternoon (November 17), Williams and Lioi
exchanged another set of text messages-
[Williams:] . . . I just left my home 2 meet w/my
lawyer…I saw my wife drive by…can I go home or
[Lioi:] I wouldn't be alone with her. She could say you
did anything. Have a witness with you if you meet.
[Williams:] Thanks Dan[.]
[Williams:] Can she do another protection order & try 2
keep me from the house?
[Lioi:] She could. I would avoid her. She could call the
police and say u have the warrant and she is afraid of you.
It would force our hand to serve the warrant.
J.A. 559. Williams later called Lioi from his lawyer's
office to discuss the two warrants again, at which time Lioi
"t[old] him that he should, you know, turn himself in,
the weekend's over, let's get this taken care of
today." J.A. 286. Williams indicated Tuesday was still
better, and Lioi told him to call after leaving the
hours later, Williams stabbed his wife, which resulted in her
death and that of her unborn child.
filed a complaint in Maryland state court alleging that Lioi
was liable for Mrs. Williams' death under several state
and federal laws. Lioi removed the case to the U.S. District
Court for the District of Maryland and moved to dismiss on
the basis of qualified immunity. The district court denied
Lioi's motion. He appealed, and we affirmed in an
unpublished decision. Robinson, 536 Fed.Appx. at
our decision on the motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) necessarily accepted as true all of
the allegations in Robinson's Complaint. Id. at
341. On that basis, we concluded that the Complaint
adequately alleged that Lioi engaged in affirmative acts that
could make him liable to Robinson for a violation of Mrs.
Williams' due process rights under the state-created
danger doctrine. Id. at 343-44 (discussing the
development of the doctrine that had its genesis in
DeShaney v. Winnebago Cty. Dep't of Soc. Servs.,
489 U.S. 189 (1989)). Robinson alleged that Lioi
"withheld the warrant [from the unit that should have
served it] so that [the Eastern District] could retain
control over whether it would be served or not;"
"warned Mr. Williams of the warrant and their feigned
efforts to serve him;" "purposefully refused to
serve or arrest [Williams when he self-surrendered], falsely
claiming instead that the warrant allegedly could not be
found. This was an intentional and malicious act . . . for
the purpose of allowing Mr. Williams to remain free despite
the warrant;" and "placed Mrs. Williams in a
police-created zone of danger by intentionally conspiring
with Mr. Williams to permit him to remain free despite ample
opportunity to arrest him." Complaint at 4-5, 9,
Robinson v. Lioi, No. 1:12-cv-00192-CCB, 2012 WL
2992251 (D. Md. July 18, 2012), ECF No. 2.
considered whether Lioi was entitled to dismissal of the
claims against him, we specifically pointed to these
allegations as the basis for our decision. Robinson,
536 Fed.Appx. at 341, 344. We concluded that, as a whole,
these allegations encompassed affirmative acts that could
have "directly enabled" Williams to harm Mrs.
Williams. Id. at 345. Accordingly, we held that the
Complaint adequately alleged a due process violation for Rule
doing, we rejected Lioi's reliance on Town of Castle
Rock v. Gonzales, 545 U.S. 748 (2005), in which the
Supreme Court held that no due process violation occurred
when police officers failed to enforce a restraining order.
Robinson, 536 Fed.Appx. at 345. We explained that
"Lioi's alleged conduct in this case was not
confined to a failure to execute [an] arrest warrant,"
but rather included allegations that he "affirmatively
acted to interfere with execution of the warrant by
conspiring with Cleaven Williams to evade capture and remain
at large." Id.
Lioi's prior appeal, Robinson amended her Complaint to
add Russell as a defendant. She alleged the following claims
against both officers: violation of Mrs. Williams' due
process rights, in violation of 42 U.S.C. § 1983;
conspiracy to violate Mrs. Williams' constitutional
rights, in violation of 42 U.S.C. § 1985; and numerous
Maryland state law claims. The alleged factual basis of the claims
remained substantively the same as in her original Complaint.
discovery, Lioi and Russell moved for summary judgment,
challenging the substantive claims and arguing that they were
entitled to qualified immunity on the federal claims and to
public official immunity on the state claims. In addition to
deposition statements, affidavits, and other records from the
participants in the events described above, Lioi and Russell
submitted an affidavit from an expert witness, Stanford
O'Neill Franklin, an officer with thirty-four years of
law enforcement experience in Maryland, including time with
the BCPD. In relevant part, Franklin stated that, in his
experience, if Williams had "been arrested and
processed" following his Thursday evening
self-surrender, "he would have been released within 24
hours on his personal recognizance, or required to post
minimum bail, which means he would have been back on the
street by Saturday morning, November 15, 2008." J.A.
district court awarded summary judgment to Lioi and Russell.
Robinson, 2017 WL 2937568, at *14. It concluded that
a jury could not find in favor of Robinson on the substantive
question of whether the officers' conduct constituted a
state-created danger because Robinson's evidence did not
show that Lioi and Russell "committed affirmative acts
that created or enhanced the danger to" Mrs. Williams.
Id. at *9. The district court held in the
alternative that Lioi and Russell were entitled to qualified
immunity because, even if a violation had occurred, it was
not clearly established. The court explained: "the facts
are not sufficient to show that a reasonable officer in
either defendant's position would have understood he was
violating" Mrs. Williams' rights by "using
[his] discretion not to aggressively serve an arrest warrant
and instead allow Mr. Williams to delay his date of voluntary
surrender by several days." Id. at *10.
district court also granted Lioi and Russell summary judgment
on Robinson's other claims. Id. at *10-14. In
relevant part, it held that the conspiracy claims could not
survive because Robinson produced no evidence of a conspiracy
to violate Mrs. Williams' constitutional rights and no
evidence that Lioi's and Russell's conduct caused her
death. Id. at *10-11. Similarly, the court held that
the officers were entitled to summary judgment on the gross
negligence claim because Robinson produced no evidence that
they intended to injure Mrs. Williams or were so utterly
indifferent to her rights that they acted as if her rights
did not exist. Id. at *11-12. In addition, it held
that the causation element had not been satisfied.
Id. at *12-13. The district court also granted Lioi
and Russell summary judgment on the wrongful death and
survival actions because they were entitled to public
official immunity under Maryland law for any negligent
conduct and no evidence supported intentional misconduct or
gross negligence. Id. at *14. It further concluded
those claims would also fail on causation grounds.
noted a timely appeal, and the Court has jurisdiction under
28 U.S.C. § 1291.
appeal focuses on the district court's award of summary
judgment to Lioi and Russell on her § 1983 substantive
due process claim. She contends the record adequately
demonstrates that Lioi and Russell committed various
affirmative acts that could make them liable under the
state-created danger doctrine. Robinson further challenges
the district court's alternative holding that the
officers were entitled to qualified immunity on the due
process claim. Lastly, she challenges its judgment in favor
of Lioi and Russell on her state-law claims.
Court reviews de novo the district court's grant of
summary judgment. Doe, 795 F.3d at 436. Summary
judgment is appropriate if the evidence shows that
"there is no genuine dispute as to any material
fact," Fed.R.Civ.P. 56(a), such that "'a
reasonable jury could [not] return a verdict for the
nonmoving party, '" Doe, 795 F.3d at 436
(alteration in original) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
the standard of review is usually a fairly rote practice, but
it has particular significance in this case given the
contrast that it signals between this appeal and our prior
review of Robinson's allegations. In this case, we are
confronted with the view proposed in Robinson's briefs
and adopted by the dissenting opinion that the outcome of
this appeal should be dictated by our prior decision.
E.g., Opening Br. 19 (asserting the district
court's opinion "virtually ignored" the
Court's prior decision, which had "already
held" that Lioi and Russell's conduct fell within
the state-created danger theory). Relying on the
law-of-the-case doctrine, the dissent accuses us of
"rescind[ing] our prior holding, shielding [this]
decision . . . with the defense that we are now at the
summary judgment stage." Infra at 64-65. But
there is nothing remarkable in the black-letter law
understanding that plaintiffs are held to different standards
at different stages of the proceedings in the district court,
or that appeals from those decisions are also subject to
cannot be put more plainly: we previously considered whether
Robinson's allegations stated a claim against
Lioi because we were considering only the district
court's decision to deny a motion to dismiss under Rule
12(b)(6). Now, we are reviewing whether Robinson's
evidence supports a claim against Lioi and Russell
because we are considering the district court's decision
to grant a motion for summary judgment under Rule 56(a).
Bennet v. Spear, 520 U.S. 154, 168 (1997)
(contrasting the pleading stage, where "on a motion to
dismiss [courts] presume that general allegations embrace
those specific facts that are necessary to support the
claim" with the summary judgment stage, where "a
plaintiff must set forth [specific facts] by affidavit or
other evidence" (internal quotation marks and
alterations omitted)). This "wholly different
substantive and procedural context" matters when
analyzing Robinson's claim. See SD3 II LLC v. Black
& Decker (U.S.) Inc., 888 F.3d 98, 109 (4th Cir.
2018). Unlike the first time this case came before us, we are
no longer obliged to accept Robinson's allegations as
true. While Robinson is still entitled to have the record
viewed in the light most favorable to her, we can no longer
simply accept her characterizations of what occurred. Now
that the parties have completed discovery, we have a
"fully-developed record" to apply "to those
allegations upon a motion for summary judgment,"
id., and Robinson must present more than a
"scintilla" of evidence to support her allegations,
Sylvia Dev. Corp. v. Calvert Cty., 48 F.3d 810, 818
(4th Cir. 1995) (internal quotation marks omitted).
is also nothing remarkable in concluding that some plaintiffs
whose claims survive a motion to dismiss are unable to meet
their burden to survive summary judgment. In Behrens v.
Pelletier, 516 U.S. 299 (1996), for example, the Supreme
Court held that a defendant was entitled to raise the defense
of qualified immunity in more than one interlocutory
appeal-initially, after denial of a motion to dismiss, and,
subsequently, after denial of summary judgment. The Supreme
Court explained that more than one appeal was warranted
the legally relevant factors . . . will be different on
summary judgment than on an earlier motion to dismiss .....
It is no more true that the defendant who has unsuccessfully
appealed denial of a motion to dismiss has no need to appeal
denial of a motion for summary judgment, than it is that the
defendant who has unsuccessfully made a motion to
dismiss has no need to make a motion for summary
Id. at 309.
inherent in our prior decision or the law-of-the-case
doctrine precludes our conclusion in this appeal that
Robinson has failed to meet her burden on summary judgment.
The law-of-the-case doctrine recognizes that "when a
court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent stages in
the same case." Arizona v. California, 460 U.S.
605, 618 (1983). But it poses no bar to the assessment of
past holdings based on a different procedural posture when,
as is the case in the progression from review of a motion to
dismiss to a motion for summary judgment, that later review
expands the court's inquiry based on development of
actual facts underlying a plaintiff's claims. Wiest
v. Tyco Elecs. Corp., 812 F.3d 319, 329-30 (3d Cir.
2016) (rejecting the plaintiff's argument that because
the court had previously held that her complaint sufficiently
alleged a claim, the district court was precluded from
granting summary judgment under the law-of-the-case doctrine
and describing that argument as resting on a "critical
misapplication of the fundamental distinction between a
motion to dismiss under Rule 12(b)(6) and a motion for
summary judgment under Rule 56"). Indeed, consistent
with this recognition, this Court's articulation of the
law-of-the-case doctrine also acknowledges that different
facts will lead to a different legal analysis to which the
doctrine cannot apply. Sejman v. Warner-Lambert Co.,
845 F.2d 66, 69 (4th Cir. 1988) (stating that the
law-of-the-case doctrine applies "unless" one of
several exceptions applies, including the subsequent
development of "substantially different evidence").
dissent acknowledges, nothing in the law-of-the-case doctrine
or our prior decision compelled a particular result in this
appeal except to the extent the facts remained the same as
the allegations. Infra at 64-67. The cases the
dissent relies on to support the doctrine's applicability
reiterate that when a court is presented with a different
record at a new stage of the case, the law-of-the-case
doctrine will no longer constrain the court's review.
E.g., TFWS, Inc. v. Franchot, 572 F.3d 186,
191 (4th Cir. 2009). But only when the facts alleged in a
complaint are subsequently proven during discovery will the
law-of-the-case doctrine continue to govern how the law
applies to those facts. U.S. ex rel. Oberg v. Pa. Higher
Educ. Assistance Agency, 804 F.3d 646, 665-66 (4th Cir.
2005) (holding that the law-of-the-case doctrine was relevant
to the Court's review because the case's evidence
developed during discovery and considered as part of the
motion for summary judgment "confirmed the existence of
the facts" previously relied on in considering the
propriety of a motion to dismiss).
produced substantially different facts than Robinson alleged
in her Complaint which requires us to alter our understanding
of the factual underpinnings of Robinson's claim for
purposes of summary judgment. Based on this divergence, the
law-of-the-case doctrine does not constrain our review of how
the governing legal principles apply to Robinson's claim.
At bottom, the evidence that Robinson marshaled during
discovery demonstrates that Russell and Lioi's conduct
cannot support a state-created danger substantive due process
claim and that the officers are entitled to qualified
can hold state actors liable under § 1983 for
deprivations of "any rights, privileges, or immunities
secured by the Constitution," 42 U.S.C. § 1983,
including deprivations of a person's "life, liberty,
or property, without due process of law," U.S. Const.
amend. XIV. Because the Due Process Clause protects
individuals "against arbitrary action of
government," with "arbitrary" in this context
encompassing "only the most egregious official
conduct," no constitutional violation occurs where the
state actor "negligently inflicted harm." Cty.
of Sacramento v. Lewis, 523 U.S. 833, 845- 46, 49 (1998)
(internal quotation marks omitted).
the Due Process Clause "cannot fairly be extended to
impose an affirmative obligation on the State to ensure that
those interests do not come to harm through other
means." DeShaney, 489 U.S. at 195. And
"because 'the Due Process Clause does not require
the State to provide its citizens with particular protective
services, [state actors] cannot be held liable under the
Clause for injuries that could have been averted had it
chosen to provide them.'" Doe, 795 F.3d at
437 (quoting DeShaney, 489 U.S. at 196-97).
on this understanding of the Due Process Clause, the Supreme
Court held in DeShaney that a county social services
department had not violated a four-year-old's substantive
due process rights by failing to protect the child from his
abusive father. 489 U.S. at 191-94. The department had
received numerous reports of abuse but failed to remove the
child from his father's custody. Id. at 192-93.
The Supreme Court recognized that although "in certain
limited circumstances the Constitution imposes upon the State
affirmative duties of care and protection" based on a
"special relationship," no such relationship
existed in this case because the child was not in the
State's custody (e.g., through "incarceration,
institutionalization, or other similar restraint of personal
liberty") when his father harmed him. Id. at
197-200. As part of its due process analysis, the Supreme
Court observed that the department was also not liable
because, "[w]hile the State may have been aware of the
dangers that [the child] faced in the free world, it played
no part in their creation, nor did it do anything to render
him any more vulnerable to them." Id. at 201.
"This language in DeShaney is commonly
acknowledged as the genesis of the state-created danger
doctrine." Robinson, 536 Fed.Appx. at 343.
state-created doctrine is a "narrow" exception to
the general rule that state actors are not liable for harm
caused by third parties. Doe, 795 F.3d at 437. It
applies only when the state affirmatively acts to create or
increase the risk that resulted in the victim's injury.
Specifically, "a plaintiff must show that the state
actor created or increased the risk of private danger, and
did so directly through affirmative acts, not merely through
inaction or omission." Id. at 439. A direct,
affirmative act is necessary because liability is premised on
the understanding that state actors cannot "disclaim
liability when they themselves throw others to the
lions" and that where they have engaged in affirmative
conduct that creates or increases "the dangerous
situation that resulted in a victim's injury,"
"it becomes much more akin to a[ ] [state] actor itself
directly causing harm to the injured party." Pinder
v. Johnson, 54 F.3d 1169, 1177 (4th Cir. 1995) (en
banc). The doctrine's conception of an "affirmative
act" is also quite limited: "[i]t cannot be that
the state commits an affirmative act or creates a danger
every time it does anything that makes injury at the hands of
a third party more likely. If so, the state would be liable
for every crime committed by the prisoners it released."
Id. at 1175 (internal quotation marks omitted). This
narrowly confines the scope of qualifying "affirmative
acts" to those that directly create or increase, i.e.,
cause, the risk a third party posed to the victim.
appeal, Robinson argues that the district court erred because
the record demonstrates that Lioi and Russell took
"affirmative acts" from which a reasonable jury
could conclude that they directly increased the risk Williams
posed to his wife. To support her argument that the officers
are liable for a state-created danger, Robinson relies on the
following eight "affirmative acts" that she claims
made summary judgment inappropriate:
(1) Lioi "acted affirmatively" to free Williams
from the Eastern District station after he could not locate
the arrest warrant instead of placing Williams under arrest
without the warrant and temporarily detaining him in the
holding cell while the search for the missing warrant
(2) Lioi "affirmatively agreed" to permit Williams
to remain free between the time Williams tried to
self-surrender and the time of Mrs. Williams' stabbing;
(3) Lioi wrote two letters to Williams "in an effort to
aid Williams in avoiding lawful arrest on valid
(4) "Lioi texted Williams regarding when it was safe to
return home without fear of arrest and how to avoid service