Facts
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In December 2020, the Louisiana State Police (LSP) Narcotics Division began investigating allegations that senior trooper August McKay was using fraudulent prescriptions to obtain controlled substances from a local pharmacy. As part of this investigation, LSP officers obtained a warrant to search August’s residence. On the morning that they planned to execute the search warrant, they asked Sergeant Rohn Bordelon and Trooper David LaCroix, for their assistance. They instructed Sgt. Bordelon and Trooper LaCroix to inform August that he was going to be reassigned and to gain a “Code Four”—a police signal code that indicates to other officers that “everything is under control and the scene is safe”—so that other detectives could execute the search warrant.
On the way to August’s home, Sgt. Bordelon and Trooper LaCroix discussed different scenarios, including the possibility that August might arm himself and attempt to commit suicide by cop. August had been in and out of the hospital for medical reasons and had been out on family and medical leave so they were not sure about the state of mind he would be in and were not sure how things were going to go. They created a contingency plan that if August armed himself and attempted to commit suicide by cop, they would retreat and treat the situation as a barricaded subject.
When Sgt. Bordelon and Trooper LaCroix arrived at August’s residence, they noticed that his take-home police vehicle was not there. They knocked on the door and were greeted by August’s minor child, P.M., and wife, Brandy McKay. Brandy invited the officers in the house to wait for August’s arrival. Once August returned home, Sgt. Bordelon informed him that he was being placed on administrative leave and that he needed to go outside to sign some paperwork. Outside, Sgt. Bordelon told August that the LSP had a search warrant for the residence and intended to execute it. Sgt. Bordelon asked August if Brandy, P.M., and P.M.’s minor friend who was visiting could leave the residence. August agreed that they should leave, and Sgt. Bordelon and Trooper LaCroix accompanied him back inside.
Upon reentering the house, August made his way to the master bedroom closet. Trooper LaCroix observed two handguns on a closet shelf and confiscated them over August’s objection. Trooper LaCroix told him that the department was going to take them anyway, so he would hold them. August then proceeded to use his master restroom while Trooper LaCroix stood outside the open door and observed. By the time August returned to the master bedroom, Sgt. Bordelon and Brandy had entered the bedroom. While Brandy spoke to the officers about what was happening, August walked back into the closet and retrieved his LSP department-issued firearm. As August chambered a round, Trooper LaCroix exclaimed, “Gus, no, what are you doing?” Following the contingency plan they made that morning, Sgt. Bordelon told Trooper LaCroix to back out, and both officers left the McKay home. Brandy unsuccessfully attempted to take the firearm from August, who then fatally shot himself.
Brandy McKay sued several LSP officers, including Sgt. Bordelon and Trooper LaCroix. The district court concluded that Brandy had pled sufficient facts to state § 1983 claims against Sgt. Bordelon and Trooper LaCroix. To reach this conclusion, the court asked whether, accepting the pleaded facts as true, defendants: (1) had subjective knowledge of August’s risk of suicide; and (2) responded to August’s risk of suicide with deliberate indifference. The 5th reversed and granted qualified immunity to the officers.
Analysis
A state official is entitled qualified immunity unless: (1) the plaintiff alleged a violation of a constitutional right; and (2) that right was clearly established at the time of the alleged violation.
We may address either prong first. Here, our inquiry begins and ends with whether Brandy alleged a violation of August’s constitutional rights.
A state generally has no affirmative obligation to protect its citizens from private harm. See Stukenberg. Nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. But when a state affirmatively acts to restrain an individual’s freedom through incarceration, institutionalization, or other similar restraint of personal liberty, the state establishes a “special relationship” with the individual. See McClendon. Where a special relationship exists, a state may have a constitutional duty to protect the individual from dangers, including in certain circumstances, private harm such as private violence or self-inflicted harm. See Hare. Such a relationship has arisen between a state and prisoners, pretrial detainees—including suspected criminals injured while being apprehended by police, and involuntarily-committed mental patients.
Yet, no constitutional duty exists where, like here, the state has not restrained an individual’s liberty. This is not a case where police injured a suspect while apprehending him. There is no indication from the alleged facts that Sgt. Bordelon and Trooper LaCroix planned or attempted to arrest August or confine him to his home. They visited August’s home to inform him that he was being reassigned at work, and to confirm that the premises were safe for the LSP to execute the search warrant. After they left his house, August tragically proceeded to commit suicide.
Indeed, Brandy does not allege in her complaint that Sgt. Bordelon or Trooper LaCroix restrained August’s liberty. To the contrary, she seeks to hold them responsible for August’s death because they allowed him to enter his home where his guns were, allowed him to roam around his home, did nothing to restrict his movements, and then took no action whatsoever to attempt to disarm August but instead elected to flee the home. Put otherwise, she blames them because they did not restrain his liberty.
Without a restraint of liberty, there is no constitutional duty. Without a constitutional duty, there can be no constitutional violation. And without a constitutional violation, Sgt. Bordelon and Trooper LaCroix are entitled qualified immunity.
https://www.ca5.uscourts.gov/opinions/pub/23/23-30775-CV0.pdf