Johnson-Krumm v. City of Seaford et al
MEMORANDUM OPINION. Signed by Judge Stephanos Bibas on 4/27/2021. (amf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CAROL ANN JOHNSON-KRUMM,
CITY OF SEAFORD, et al.,
Brian E. Farnan, Michael J. Farnan, Rosemary J. Piergiovanni, FARNAN LLP,
Counsel for Plaintiff.
Daniel A. Griffith, Kaan Ekiner, WHITEFORD, TAYLOR & PRESTON LLC, Wilmington, Delaware.
Counsel for Defendants.
April 27, 2021
BIBAS, Circuit Judge, sitting by designation.
Though the police may have a moral duty to save someone from his own mistake,
they have no constitutional duty to do so. To escape the Seaford police, Justin Johnson
jumped into a river and drowned. According to his mother, the police failed to save
him because the City had not trained them in water rescue. Yet even if she is right,
she cannot sue the City over this tragedy: the police had no constitutional duty to
In July 2014, Seaford policemen were patrolling the City’s Nanticoke River festival. D.I. 85, at 5; D.I. 88, at 2. They saw Justin Johnson, who they knew was wanted
for credit-card fraud. So they arrested and handcuffed him. D.I. 85, at 6. But Johnson
shoved a policeman, bolted, jumped into the river, and swam away. As he swam further out while still handcuffed, he struggled to stay afloat. A policeman tried to rescue
him. But Johnson drowned. Id. at 7; D.I. 88, at 3–4.
Johnson’s mother has sued the City and its police department. She blames them
for failing to train the policemen in water rescue or to give them rescue equipment.
Compl., D.I. 40, at 9–12. This error, she argues, violated Johnson’s due-process rights
and caused his death. The City and the police department have moved for summary
judgment. D.I. 84. I may grant the motion if there is no genuine dispute of material
fact and if the defendants are entitled to judgment as a matter of law. Fed. R. Civ. P.
The parties debate whether the City had an adequate water-rescue policy. But I
need not decide that, because it was not required to have any policy. The “Due Process
Clauses generally confer no affirmative right to governmental aid, even where such
aid may be necessary to secure life.” DeShaney v. Winnebago Cnty. Dep’t of Soc.
Servs., 489 U.S. 189, 196 (1989). So “[t]he plaintiff’s allegations of municipal policy
cannot surmount the main obstacle to her claim: the city simply had no constitutional
obligation to save [Johnson from drowning].” Ross v. United States, 910 F.2d 1422,
1428 (7th Cir. 1990); accord Andrews v. Wilkins, 934 F.2d 1267, 1270 (D.C. Cir. 1991)
(holding that the police “had no constitutional duty to rescue” a man who drowned
while trying to escape them).
There are two exceptions to DeShaney, but neither applies here. First, the City
might have had a duty to save Johnson if it “made [him] more vulnerable” to drowning
and if (among other things) that danger was “foreseeable and fairly direct.” Johnson
v. City of Philadelphia, 975 F.3d 394, 400 (3d Cir. 2020). The handcuffs did make
Johnson more vulnerable—but only because he then jumped in the river. That was
not foreseeable, and his mother does not argue otherwise. Accord Hermann v. Cook,
114 F. App’x 162, 163–65 (6th Cir. 2004) (holding that the police had no duty to rescue
a man who drowned while in handcuffs, because his unexpected escape and dash into
a river caused his death).
Second, this case might be different if the city had taken Johnson “into its custody
and h[e]ld[ ] him there against his will.” DeShaney, 489 U.S. at 199–200. Then, because Johnson would have been “render[ed] unable to care for himself,” the City
would have needed to “provide for his basic human needs … [like] reasonable safety.”
Id. at 200.
That exception is also inapt. By custody, the Supreme Court meant “incarceration,
institutionalization, or other similar restraint of personal liberty.” Id. Someone fleeing the police, even in handcuffs, was not in their custody, let alone held against his
will. See id. at 199–200; see, e.g., Hellum v. Warden, U.S. Penitentiary–Leavenworth,
28 F.3d 903, 905 (8th Cir. 1994) (explaining that a defendant had “escape[d] from
custody” “[d]espite being bound by handcuffs”); see also Custody (def. 1), Black’s Law
Dictionary (11th ed. 2019) (“[t]he care and control of a … person” (emphasis added)).
Johnson did not drown because the police had restrained his movement; he drowned
only because they failed to.
Because Johnson was not in police custody when he drowned, the City and the
police had no constitutional duty to rescue him. So it does not matter whether they
had an adequate water-rescue policy. They had no duty to have any policy at all.
Thus, the due-process claim may not go to trial. I will grant the motion for summary
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