1983." 2d at 426, 428. Fee v. Herndon, 900 F.2d 804, 808 (5th Cir. But history has shown that the "Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution." Maj. op. To begin with, both Sample and Greason are prison inmate cases, thus involving that sort of "special relationship" where the Constitution does impose an affirmative duty, as recognized in DeShaney, a relationship which the majority disclaims here. I am a Program Manager for Alabama Space Grant Consortium and NASA EPSCoR with 9 years of experience. 1983 unless (1) Jane Doe's liberty interest under the substantive due process component of the Fourteenth Amendment, and (2) Caplinger's and Lankford's duty with respect to Jane Doe's constitutional right were "clearly established" at the time these events took place. Further, when one looks at municipal liability cases of the Canton sort, although the primary focus may be on a policy that consciously elects not to do something--in Canton not to train beyond a certain level--there is also (at least in the absence of a "special relationship") a concomitant and causal affirmative election and action--in Canton, to have the decision whether arrestees detained in jail required medical care committed to the sole discretion of the inadequately trained shift commander;19 in other cases, to arm police officers and put them on the streets with directions to use their weapons as appropriate.20 Nothing of the kind on the part of Lankford is involved here; he is held liable merely on the basis of inaction. Their motivations were racist and therefore based on private hatred. Thus, under the facts construed in the light most favorable to Jane Doe and considering all the information Lankford received about Stroud's relationship with Doe, she has satisfied the first prong of the test with respect to defendant Lankford--knowledge of facts or a pattern of inappropriate sexual behavior by Stroud pointing plainly toward the conclusion that he was sexually abusing Doe. 676 (1880), that the actions of a state officer who exceeds the limit of his authority constitute state action for purposes of the Fourteenth Amendment." It is precisely this use by Stroud of his position of authority to which I point. He promised to convene a meeting of all the parties involved. 242. Consequently, Stroud, bent upon violating state criminal law, did not act under color of state law when doing so.23. Pasemann told Lankford about this incident; the two also discussed Stroud's practice of allowing unlicensed freshmen to drive his truck. 2243(a) ("sexual act with another person who--(1) has attained the age of 12 years but has not attained the age of 16 years; and (2) is at least four years younger than the" offender); Sec. 2d 701 (1991). The Court's reluctance derives from its recognition of the gravity and scope of constitutional decision making: The Fourteenth Amendment is a part of a Constitution generally designed to allocate governing authority among the Branches of the Federal Government and between that Government and the States, and to secure certain individual rights against both State and Federal Government. Id. 2d 531, 539-40 (1977). The similarities between the cases, however, are more important than the differences: Both cases involve alleged failures of supervisors to prevent substantive due process violations occasioned by their subordinates.8 Thus, in Gonzalez v. Ysleta Independent School District, 996 F.2d 745, 753-60 (5th Cir. 2d 1383 (1982), this court, sitting in banc, again addressed the issue of whether there is an affirmative constitutional duty to supervise. We held that to be legally responsible, supervising officials 'must have played an affirmative role in the deprivation of the plaintiffs' rights,' noting that 'the officials' misconduct cannot be merely a failure to act. ' . However, for that to be actionable under section 1983, not only must the consenting child have been sufficiently immature, but also the physical sexual abuse must have been under color of state law. However, the " [c]onsents of the municipal authorities and the abutting property owners to construction on the routes and plans adopted must be obtained, and any change in the detailed plans and specifications must accord with the general plan of construction, and, if not, like consents must be obtained to such change." As a result, an egregious failure to fulfill their obligation to oversee Stroud's behavior would amount to action on their part. 1983. City of Canton v. Harris, 489 U.S. 378, 381, 388, 109 S. Ct. 1197, 1200-01, 1204, 103 L. Ed. Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. Doe v. State of La., 2 F.3d 1412, 1421 (5th Cir. Certainly there was--and is--no clearly established law to the contrary. He told Livingood that he put his arms around cheerleaders at pep rallies all the time, and joked that he had invented the popular "pro-hugging" bumper stickers often seen on automobiles.2 Livingood explained that the behavior that she witnessed was of a different ilk, was inappropriate, and was akin to "child molestation." As a result, the general obligations of supervision attach to the positions of principal and superintendent. ", Having established that Jane Doe's constitutional right to bodily integrity and the appellants' duty with respect to that right were clearly established in 1987 when these events occurred, we must determine whether, on the record before us, Lankford and Caplinger have established that they satisfied their duty to Doe, and are thus entitled to summary judgment as a matter of law.11. Stroud had no authority, Judge Garza reasons, to inflict physical sexual abuse on Doe. Doe explained that she had kept the matter a secret because she feared the repercussions of disclosure. 2d 566 (1986)). Brooke Alexander turned off her breast pump at 6:04 p.m . 1992) (table: unpublished opinion), cert. Not only is there no broad constitutional purpose to be served by recognizing for Doe's benefit a constitutional right not to have her bodily integrity compromised by a teacher's sexual abuse, but the constitutional remedy that the majority strives to assure her is merely redundant of well-established criminal, tort and statutory sanctions. At least five complaints, by different female student victims, were made to Miller and Smith concerning "sexual assaults" by teachers and staff members at the school. View Others. While Rochin has frequently been cited by the Supreme Court for Justice Frankfurter's explanation of substantive due process, its precise holding has been significantly undercut by Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. Griffith v. Johnston, 899 F.2d 1427, 1435 (5th Cir. She insisted that Stroud stop the behavior. at 731-32. (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349, 95 S. Ct. 449, 453, 42 L. Ed. Similar expressions can be found in the decisions of this Court. It was around that time that talks of her 2013 debut album Pedigree came about. You just gotta keep at it.. Doe befriended Stroud's daughter in order to have "a cover" for her relationship with Stroud and "an excuse" for visiting at the Stroud residence.3 Apparently commencing in February 1987, Doe, with her parents' knowledge and consent, frequently spent the night or weekend there, ostensibly visiting Stroud's daughter. 2d 433 (1979) (no deprivation of due process where brother mistakenly detained for three days pursuant to search warrant conforming to Fourth Amendment requirements); Paul v. Davis, 424 U.S. at 713-14, 96 S. Ct. at 1166 (claim that state may not publicize record of an arrest is far afield from "right of privacy" cases under substantive due process). at 731 (emphasis added). If misuse or abuse of position was sufficient to demonstrate action occurring under color of state law, then every intentional tort committed by a state official--which is, essentially, what Stroud's conduct amounts to--would give rise to a Sec. He loves listening to podcasts, reading a good book, basketball and beaches. Dist., 817 F.2d 303, 305 (5th Cir. Stroud's favoritism in the classroom was also well-known within the school community. See La.Rev.Stat. The plaintiffs argued that because the state had notice of the possibility of abuse of the child, and in fact had intervened in the relationship (obviously ineffectively) before the final episode of abuse, it deprived the child of his right to protection afforded by substantive due process. This community not only encompasses Taylor but the greater surrounding areas including Thrall, Thorndale, Coupland, and Granger. The molestation occurred when the boys, with their parents' permission, accompanied Epps, staying at his home overnight, to sell candy to raise funds for a forthcoming basketball camp that was to be operated and directed that summer by another coach of the district and was to be held on school district property. Unit A Jan. 26, 1981) (finding that a police chief was not acting under color of state law when involved in an altercation with his sister-in-law while he was on duty); Thomas v. Cannon, 751 F. Supp. Caplinger became the superintendent of the Taylor ISD in July 1986; Lankford did not inform Caplinger of any problems--real or potential--with Stroud or with his pattern of conduct. at 1213. 1992). Tex.Educ.Code Sec. Brooke Taylor's Age and Birthday. Qualified immunity reflects the judgment that an official ought not to be mulcted for choices made that only later prove to have been "illegal." Meet Christopher Gonzales. Having concluded that Stroud's physical sexual abuse of Jane Doe violated her constitutional right to substantive due process, we next must decide whether school officials, like the appellants in this case, owe any duty to a schoolchild when a subordinate violates that child's constitutional rights. Accordingly, the city's conduct constituted state action because "acts done under the authority of a municipal ordinance passed in virtue of power conferred by a state are embraced by the 14th Amendment." In addition, Stroud had also befriended a new female freshman student, and began a similar inappropriate relationship (note-writing, gift-giving, walking to class, etc.) "), Justice Holmes--"unable to grasp the principle on which a state is said to deprive the [plaintiff] of its property without due process because a subordinate board, subject to the control of the supreme court of the state, is said to have violated the express requirement of the state in its Constitution"--disagreed. I therefore join the majority's judgment, accepting Defendant Caplinger's and rejecting Defendant Lankford's assertion that he is entitled to qualified immunity as a matter of law. Other circuits have reached substantially the same result. Mesa v. California, 489 U.S. 121, 135, 109 S. Ct. 959, 968, 103 L. Ed. ), cert. at 1209. The special concurrence does not mention any other fault requirement, such as negligence or gross negligence. Latest disciplinary orders. Few lower court cases outside the Fifth Circuit have embraced this substantive due process right of students not to be sexually molested by teachers. 2d 876 (1982) held, once again, that while supervising public officials may not in any way authorize, encourage, or approve constitutional torts, they have no affirmative constitutional duty to train, supervise or discipline so as to prevent such conduct. See also Lopez, 817 F.2d at 355 (finding that bus driver may be liable for acting with "callous indifference" in failing to supervise students properly). During that same period of time Stroud also met Doe in the school's fieldhouse where similar activity took place. I find nothing in our cases to comfort the principal. The Court also held that as the demands of procedural due process were adequately met by the common law, no constitutional due process violation occurred. 1983), a section 1983 suit against the city for injuries suffered when one of its policemen, inadequately trained in weapons use, shot at the plaintiff's car, where we held that city section 1983 liability for failure to train was not made out, and that "if" such a case would lie it would require "at least" evidence of "a pattern of similar incidents in which citizens were injured or endangered by intentional or negligent police misconduct and/or that serious incompetence or misbehavior was general or widespread throughout the police force." Defendant Jesse Lynn Stroud, a twenty-year veteran of Texas's public education system, was employed by the Taylor Independent School District as a biology teacher and assistant coach from 1981 until 1987. 213.4, comment 1. Article. In May of 1986, Livingood reported to Lankford that she had witnessed an episode of "child molestation" involving Stroud and two freshman female students. Thus, permitting cases against cities for their 'failure to train' employees to go forward under Sec. ", This is perhaps not surprising considering the somewhat tortuous development of section 1983 jurisprudence beginning with Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. Moreover, it is settled that an official's violation of state law--no matter how clearly established and plain to one in his position--does not deprive him of section 1983 qualified immunity if under the circumstances it was not clearly established that his conduct violated the federal right sued on. I turn now to particularly consider the basis on which the majority holds that Lankford has failed to establish his entitlement to qualified immunity. recognized, if a 'real nexus' exists between the activity out of which the violation occurs and the teacher's duty and obligations as a teacher, then the teacher's conduct is taken under color of state law. It was a no-brainer! 2d 433 (1979) (noting that even intentional torts do not become constitutional violations merely because the tortfeasors are state officials). The majority's decision as to Lankford is not grounded on the assumption that the evidence supports a finding that Lankford took any action or did anything affirmative that played any part in causing Stroud's physical sexual abuse of Doe. Just what sort of actions by Stroud violated this right of Doe? 1984)), cert. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1372-73 (3d Cir. "The Supreme Court has expanded the definition of 'liberty' beyond the core textual meaning of that term to include [not only] the privileges [expressly] enumerated by the Bill of Rights, [but also] the 'fundamental rights implicit in the concept of ordered liberty' and 'deeply rooted in this Nation's history and tradition' under the Due Process Clause." at 795, 86 S. Ct. at 1157. But this is not the constitutional wrong that the majority holds that Doe has suffered and for which Lankford lacks qualified immunity; that wrong, the "physical sexual abuse--here, sexually fondling a fifteen-year-old schoolgirl and statutory rape," came later, albeit doubtless in some sense as an ultimate result of the former conduct. 424 U.S. at 698, 96 S. Ct. at 1159. 207 U.S. at 39, 28 S. Ct. at 14 (Holmes, J., dissenting), This statement is "founded on the rule announced in Ex Parte Virginia, 100 U.S. 339, 346-47, 25 L. Ed. The Court further explained that lesser standards of fault and causation would require the federal courts endlessly to "second-guess" the wisdom of municipal training programs, a task inappropriate for the federal judiciary. "4 Collins v. City of Harker Heights, --- U.S. ----, ----, 112 S. Ct. 1061, 1066, 117 L. Ed. Daniels v. Williams, 474 U.S. 327, 332, 106 S. Ct. 662, 665, 88 L. Ed. 1990) (citations omitted), cert. In other words, the police officers exercised the legitimate authority granted by the state to conduct searches of homes and arrest persons suspected of criminal activity. The government in Screws charged that the defendants--a Georgia sheriff, policeman, and special deputy--arrested and then beat to death Robert Hall, a young African-American, in violation of the federal criminal civil rights counterpart to Sec. Of state law when doing so.23 and is -- no clearly established law to the of! Fee v. Herndon, 900 F.2d 804, 808 ( 5th Cir U.S. 327 332! 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