The 4th U.S. Circuit Court of Appeals has reversed a district court in Texas, finding that the lower court erred when the judge dismissed a civil rights claim under 42 U.S.C.S. § 1983 brought against a football coach. The circuit court reasoned “state action was clearly established” when the coach, acting in his role as an assistant football coach at a public school, ordered his players to assault the referee in a highly publicized incident.
The panel of judges, however, affirmed the court’s dismissal of the civil rights claim against the school district under Fed. R. Civ. P. 12(b)(6) because no policy or custom of the school district directed the assault on the referee, so the school district was not liable under 42 U.S.C.S. § 1983.
By way of background, plaintiff, Robert Watts, was refereeing a football game on September 4, 2015, in Marble Falls, Texas. The game pitted John Jay High School, which is part of Northside Independent School District (“NISD”), a co-defendant in the lawsuit, located in San Antonio, and Marble Falls High School. Co-defendant Mack Edward Breed was an assistant football coach at John Jay High School and an employee of NISD. Watts was part of a referee crew from the Austin Chapter of the Texas Association of Sports Officials.
Watts claimed that shortly before the game ended, Coach Breed, angry at some calls Watts made that he disagreed with, directed two John Jay players to hit Watts and “make him pay” for the alleged bad calls and racist statements. Thereafter, two Jay players tackled Watts from behind, knocking him to the ground. Watts alleges he suffered cuts, bruises, abrasions, and a concussion from the hit.
Watts sued, pursuant to 42 U.S.C. § 1983, raising a substantive due process claim pursuant to Fourteenth Amendment to the Constitution. He claimed, specifically, that the defendants violated his right to “bodily integrity and personal security.” He further alleged that Breed acted with deliberate indifference when he instructed the players to hit him.
The defendants successfully moved to dismiss Watts’ claims, which led to the subsequent appeal.
The circuit court agreed with the district court, which found that dismissal was proper “because: (1) there was no state action since the players who hit Watts were private actors, and (2) even if there were a constitutional violation, the school district was not the moving force behind it and thus, could not be liable.”
The panel, however, reached “a different conclusion when it comes to the pleading-stage dismissal of the claims brought against Breed in his own capacity.” The circuit court stated, “The district court focused on the ‘state created danger’ theory that Watts invokes. It correctly ruled that this theory could not be a basis for liability. We have ‘repeatedly declined to recognize the state-created danger doctrine.’ Joiner v. United States, 955 F.3d 399, 407 (5th Cir. 2020). A claim that we have expressly not recognized is the antithesis of a clearly established one. See Keller v. Fleming, 952 F.3d 216, 227 (5th Cir. 2020) (dismissing a case on qualified immunity grounds because the Fourteenth Amendment claim required recognition of the state-created-danger theory).”
The circuit court continued, “But the state-created-danger theory does not even fit this situation in which a public employee ordered private actors to commit an assault. Instead, the theory applies when a state actor creates a dangerous condition that results in harm. It involves a mens rea of deliberate indifference, not the intentional infliction of harm.” To provide a good example of the type of situation in which plaintiffs may invoke the state-created-danger theory, the circuit court referred the Texas A&M bonfire disaster that killed twelve students in 1999. In that case, this court noted that “the plaintiffs argued that university officials were deliberately indifferent to the ‘dangers posed by the construction of the bonfire stack.’ But no one contended that those officials wanted the bonfire to collapse or ordered anyone to make that tragedy happen. Or, to use an example from high school football, plaintiffs have invoked the state-created-danger theory to try and hold schools and coaches liable for injuries that occur on the field in the normal course of practice and games.” Once again, the circuit court emphasized, “the argument is that state actors are responsible for allowing dangerous conditions to persist,” however “cases like Yarbrough do not involve coaches ordering players to hurt others on the field.” But clearly this case did.
Therefore, the circuit court concluded, “Breed’s ordering players to assault the referee thus does not fit in the state-created-danger box. Instead, it is an example of a public official’s ordering private actors to engage in conduct. The law has long recognized that state action exists when a state actor commands others to commit acts as much as when the state actor commits those acts.”
Nevertheless, the panel wrote that it was “clearly established that Breed engaged in state action when he ordered his players to assault Watts.”
“The challenged action is Breed’s order to hurt Watts. It is hard to see how that is anything other than state action. Breed was on the sidelines acting in his role as an assistant football coach at a public school,” the panel stated.
To draw forth a comparison, the circuit court then analogized the fact that a police officer cannot avoid liability for a search and seizure under the Fourth Amendment by ordering a private individual to conduct an illegal search or the fact that state officials could not get around the Equal Protection Clause of the Fourteenth Amendment on the grounds that they did not post the signs on bus terminals to segregate the races to reason that Breed, likewise cannot escape liability by ordering students to conduct the attack. These examples show that “a state actor is liable for conduct that also involves private actors ‘when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.’”
The issue presented by this case, the circuit court indicates is a “difficult state action question when a public official and a ‘nominally private’ party act in concert [of] whether the latter temporarily becomes a state actor subject to constitutional constraints.” The question that the circuit court ultimately asks, and answers here is “whether a public official somehow steps out of his ordinary ‘state actor’ role by enlisting private parties to carry out his orders.” Yet, the circuit court reasons, “[b]ecause the law has long recognized that a public official remains a state actor when he orders others to carry out his objectives, any reasonable football coach would have known that he was engaged in state action when instructing his players that Friday night. Consequently, the state action in this case was clearly established and it was error to dismiss the section 1983 claim against Breed on that ground.”
To conclude, the panel eventually held that “Breed was engaged in state action that subjected him to the Due Process Clause” but the circuit court refused to “opine on whether the complaint has alleged a violation of clearly established due process law” leaving that determination to the district court on remand. Finally, the circuit court reversed the dismissal of the state claims because the only basis for dismissing them was the dismissal of the federal claim of which the case is now remanded.
