911 Dispatch Assurances and Call-Coding Errors Are Not “Affirmative Acts” for State-Created Danger; Monell Requires an Underlying Due Process Violation

Introduction

This appeal arises from a tragic sequence of events beginning with a December 1, 2019 911 call. Kenneth Boone called 911 asking to be arrested, and the call was then taken over by his father, James Kenneth Boone, who warned Ottawa County Central Dispatch Authority (“OCCDA”) telecommunicators that Kenneth had stopped taking schizophrenia medication, had threatened him, and feared he might “do something bad” to James. The incident was coded as a priority-two call, no officer was immediately dispatched due to officer unavailability, and the call remained pending without a radio pre-broadcast or a request to engage a nearby village deputy. About an hour later, Kenneth called again and reported he had killed James with a hammer.

James’s estate sued OCCDA and several employees under 42 U.S.C. § 1983, asserting (i) a substantive due process claim under a state-created danger theory against individual telecommunicators/supervisor, and (ii) municipal liability claims against OCCDA under Monell v. Department of Social Services for policies/customs and failure to train. After removal and discovery, the district court granted summary judgment on the federal claims and declined supplemental jurisdiction over state claims. The Sixth Circuit affirmed.

The central legal issue was whether dispatch-related conduct—assurances that help was coming, call-type/call-priority decisions, and failures to pre-broadcast or escalate—constituted the kind of “affirmative act” necessary to trigger Fourteenth Amendment liability under the state-created danger doctrine, and, if not, whether OCCDA could nevertheless be liable under Monell.

Summary of the Opinion

• No constitutional violation under state-created danger: The court held the individual OCCDA defendants did not commit an “affirmative act” that created or increased the risk that James would be harmed by Kenneth. Assurances of help and dispatch errors/omissions did not satisfy the first element of the Sixth Circuit’s demanding state-created danger test.
• Omissions are not affirmative acts: Failures to dispatch sooner, to listen to the call, to pre-broadcast, or to contact a supervisor to consider engaging a nearby deputy were characterized as inaction, which cannot meet the doctrine’s threshold.
• Monell claims fail without an underlying constitutional violation: Because the estate failed to show any deprivation of James’s constitutional rights, OCCDA could not be liable for policies/customs or failure to train.
• Qualified immunity not reached: The panel resolved the individual-liability claims on the “no constitutional violation” prong, making it unnecessary to decide whether any right was “clearly established.”

Analysis

1. Precedents Cited

The opinion is principally an application of existing Supreme Court and Sixth Circuit doctrine that sharply limits constitutional liability for failures to protect individuals from private violence.

A. Framework: state action, private violence, and limited exceptions

• DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989): The foundational case: the Fourteenth Amendment generally does not impose an affirmative duty on the State to protect individuals from private violence, absent limited exceptions. The panel drew directly from DeShaney both for the general rule and for the requirement that state-created danger liability must rest on conduct that makes the victim “more vulnerable” than if the State had not acted at all. The court also relied on DeShaney to reject liability based on “expressions of intent to help,” emphasizing that such assurances do not themselves create a constitutional duty.
• Franz v. Oxford Cmty. Sch. Dist., 132 F.4th 447 (6th Cir. 2025): Cited for the proposition that the Constitution “regulates only the state's actions—not those of private actors,” and for the key comparator in the affirmative-act analysis: whether the victim was placed in a worse position than if the defendant “not acted at all” (quoting DeShaney). Franz supplies the opinion’s operational test for “worse position” analysis.

B. The Sixth Circuit’s three-part test and the “affirmative act” bottleneck

• M.J. ex rel. S.J. v. Akron City Sch. Dist. Bd. of Educ., 1 F.4th 436 (6th Cir. 2021): The panel relied on M.J. for the three elements of a state-created danger claim: (1) an affirmative act that created or increased the risk of harm from a third party; (2) a “special danger” to the plaintiff as distinguished from the public at large; and (3) the state’s awareness of a substantial risk plus conscience-shocking response (quoting Doe v. Jackson Loc. Sch. Bd. of Educ.).
• Doe v. Jackson Loc. Sch. Bd. of Educ., 954 F.3d 925 (6th Cir. 2020): Provided the “substantial risk of serious harm” and “conscience shocking” phrasing used in element three, reinforcing the doctrine’s high threshold.
• Lipman v. Budish, 974 F.3d 726 (6th Cir. 2020): Cited twice: (i) for the difficulty of meeting the “affirmative act” requirement and the principle that mere failures to act do not qualify; and (ii) for rejecting the special-relationship exception when the victim is not in state custody. The panel used Lipman to frame the inquiry as whether the victim was safer before than after the challenged state conduct.
• Stiles, ex rel. D.S. v. Grainger County, 819 F.3d 834 (6th Cir. 2016): Used to illustrate the line between action and omission: “Failing to punish,” “ignoring,” and even returning someone to a preexisting danger are not affirmative acts for state-created danger liability. The panel analogized dispatch failures to these non-actionable omissions.

C. Dispatch assurances and “intent to help” are not affirmative acts

• Brooks v. Knapp, 221 F. App'x 402 (6th Cir. 2007): The panel cited this decision to reinforce that even reliance on assurances that help is coming does not create constitutional liability under state-created danger, consistent with DeShaney.
• Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909 (10th Cir. 2012): Cited as persuasive authority explaining why “false assurances” are not affirmative acts: the reason mirrors DeShaney’s rejection of “intent to help” as a basis for a special relationship or danger-creation duty.

D. Omissions by dispatchers are not affirmative acts

• Cartwright v. City of Marine City, 336 F.3d 487 (6th Cir. 2003): Directly supports the court’s holding that delay and failure to act—even if tragic—are not “affirmative act[s]” under the state-created danger theory.
• Reilly v. Ottawa County, 2021 WL 3929324 (6th Cir. Sept. 2, 2021): Reinforces that failure to follow through “in a timely and forceful manner” does not constitute an affirmative act that created or increased danger.

E. Summary judgment standards and evidentiary constraints

• Stiles, ex rel. D.S. v. Grainger County, 819 F.3d 834 (6th Cir. 2016) & Fed. R. Civ. P. 56(a): Provided the procedural lens for de novo review of summary judgment.
• Wheat v. Fifth Third Bank, 785 F.3d 230 (6th Cir. 2015): Cited for the “genuine dispute of material fact” standard.
• Culp v. Rutledge, 343 F. App'x 128 (6th Cir. 2009) and FDIC v. Jeff Miller Stables, 573 F.3d 289 (6th Cir. 2009): Used to reject speculative expert assertions about reliance/false sense of security as insufficient to defeat summary judgment without record support.

F. Qualified immunity sequencing

• Ashcroft v. al-Kidd, 563 U.S. 731 (2011): Provided the two-prong qualified immunity test (constitutional violation + clearly established right).
• Sexton v. Cernuto, 18 F.4th 177 (6th Cir. 2021): Cited for the plaintiff’s burden to satisfy both prongs.
• Pearson v. Callahan, 555 U.S. 223 (2009) and Kinlin v. Kline, 749 F.3d 573 (6th Cir. 2014): Support the court’s decision to address only the constitutional-violation prong and stop once it found none.

G. Monell and the “no underlying violation, no municipal liability” rule

• Monell v. Department of Social Services, 436 U.S. 658 (1978): The basis for municipal liability when a policy/custom causes a constitutional injury.
• Baynes v. Cleland, 799 F.3d 600 (6th Cir. 2015) and Ouza v. City of Dearborn Heights, 969 F.3d 265 (6th Cir. 2020): Used for the elements of municipal liability: a constitutional deprivation plus municipal responsibility through policy/custom.
• Martinez v. Wayne County, 142 F.4th 828 (6th Cir. 2025): Cited both for the availability of failure-to-train as a theory and, crucially, for the proposition that “there can be no liability under Monell without an underlying constitutional violation” (quoting Chambers v. Sanders).
• Chambers v. Sanders, 63 F.4th 1092 (6th Cir. 2023): Quoted in Martinez and applied here to foreclose municipal liability absent a predicate constitutional injury.
• Codrington v. Dolak, 142 F.4th 884 (6th Cir. 2025): Reinforced the “rise and fall” relationship between individual constitutional claims and Monell arguments where the asserted municipal liability depends on the same alleged constitutional violation.

2. Legal Reasoning

A. The court’s narrow threshold holding: no “affirmative act”

The panel affirmed on the first element of state-created danger—affirmative conduct that created or increased risk—treating it as dispositive. This choice reflects a recurring feature of Sixth Circuit doctrine: most claims fail at the “affirmative act” stage because the Constitution generally does not convert negligent, incompetent, or even reckless nonfeasance into a substantive due process violation where a private actor inflicts the harm.

B. Wentworth: assurances + miscoding still do not worsen the victim’s position in the constitutional sense

The estate’s core theory against telecommunicator Wentworth was that she (i) assured James an officer would come and encouraged him to call back if things changed, yet (ii) coded the call as priority two (“disturbance in progress”) and entered limited details, contributing to delay—thereby increasing the risk of Kenneth’s violence.

The panel further emphasized the evidentiary gap: the estate lacked record evidence (beyond an expert’s uncorroborated inference) that James relied on the assurance in a way that caused him to forgo protective measures. Under Culp v. Rutledge and FDIC v. Jeff Miller Stables, speculation cannot create a triable issue.

Call coding and CAD narrative: Even accepting that miscoding and inadequate detail were “deeply troubling” (the agency itself reprimanded Wentworth), the court characterized the danger as preexisting: Kenneth had already stopped medication and was threatening/menacing James. In the court’s framing, improper coding did not “directly increase” James’s vulnerability; at most, it failed to reduce a danger that was already present—akin to “return[ing] a victim to a preexisting situation of danger” under Stiles, ex rel. D.S. v. Grainger County. That is not enough to satisfy the affirmative-act element.

C. Coenen, Culver, and Ross: delay, non-escalation, and non-broadcast are omissions

The remaining individual defendants were alleged to have failed to dispatch promptly, failed to listen to the original call, failed to pre-broadcast to officers, and failed to contact a police supervisor to seek permission to engage a nearby village deputy. The panel treated these as classic omissions—failures to act—foreclosed as a matter of law by Cartwright v. City of Marine City, Stiles, ex rel. D.S. v. Grainger County, and Reilly v. Ottawa County.

The court also rejected the argument that Coenen’s reclassification of the call (from “disturbance in progress” to “mental in progress”) constituted an affirmative act, because the priority level remained unchanged; therefore, the reclassification did not render James less safe than before the change.

D. The court’s stopping point: no constitutional violation, so qualified immunity and Monell become straightforward

Under Pearson v. Callahan and Kinlin v. Kline, the panel elected to decide only whether there was a constitutional violation. Having found none, the individual defendants were entitled to qualified immunity without reaching the “clearly established” inquiry.

The same predicate finding ended the municipal claims. Citing Martinez v. Wayne County (quoting Chambers v. Sanders), the court applied the rule that “there can be no liability under Monell without an underlying constitutional violation.” Because James suffered no cognizable substantive due process violation, OCCDA could not be liable for any allegedly deficient policy/custom or training.

3. Impact

Although “not recommended for publication” and thus nonprecedential, the decision is a clear signal of how the Sixth Circuit is likely to evaluate emergency-dispatch-based substantive due process claims:

• State-created danger remains exceptionally narrow in dispatch settings: Even serious operational failures—miscoding, insufficient narrative detail, failure to pre-broadcast, and failure to escalate—are likely to be treated as omissions (or at most negligent acts) rather than constitutional “affirmative acts” that worsen the victim’s position.
• Assurances of help rarely move the needle: Plaintiffs often attempt to frame 911 assurances as “lulling” victims into inaction. This opinion, relying on DeShaney and Brooks v. Knapp, reinforces the doctrinal resistance to turning “intent to help” into constitutional liability.
• High evidentiary demands at summary judgment: The court’s treatment of the expert’s “false sense of security” theory underscores that plaintiffs need concrete record evidence of reliance and causation, not post hoc inference.
• Monell claims are tethered to a predicate violation: Plaintiffs challenging dispatch policies/training must still clear the underlying constitutional violation hurdle; policy critiques alone will not suffice.

Practically, the decision channels many dispatch-failure claims away from federal constitutional litigation and toward state tort remedies (which the district court left to state court by declining supplemental jurisdiction).

Complex Concepts Simplified

• Substantive due process (Fourteenth Amendment): Protects against certain extreme government conduct. It does not generally require the government to protect people from harm inflicted by private individuals.
• State-created danger: A narrow exception allowing liability when the government, through an affirmative act, makes a person more vulnerable to private violence than they would have been if the government had done nothing.
• Affirmative act vs. omission: An affirmative act changes the situation in a way that increases danger. An omission is a failure to intervene, respond, or prevent harm. Under Sixth Circuit doctrine, omissions—even negligent or grossly negligent ones—usually cannot support state-created danger liability.
• “Conscience shocking”: A very high bar for culpability in substantive due process cases; the conduct must be so egregious that it violates fundamental notions of fairness. (Here, the court never reached this element because it found no affirmative act.)
• Qualified immunity: Shields government officials from damages unless they violated a constitutional right and that right was clearly established at the time.
• Monell liability: A municipality can be sued under § 1983 only if a municipal policy/custom (or failure to train) caused an underlying constitutional violation. No constitutional violation means no Monell liability.

Conclusion

The Sixth Circuit affirmed summary judgment for OCCDA and the individual telecommunicators/supervisor because, despite acknowledged dispatch shortcomings and tragic consequences, the estate could not satisfy the threshold requirement of a state-created danger claim: an “affirmative act” by the State that created or increased James Boone’s risk of harm from a private actor. Assurances that help was coming, call coding decisions, and failures to dispatch, pre-broadcast, or escalate were treated as non-actionable assurances and omissions under DeShaney v. Winnebago Cnty. Dep't of Soc. Servs. and Sixth Circuit precedent.

With no underlying constitutional violation, the court also rejected municipal liability under Monell v. Department of Social Services, reiterating that policy/custom and failure-to-train theories cannot proceed in the absence of a predicate deprivation of constitutional rights. The opinion thus reinforces the narrowness of federal substantive due process remedies for emergency response failures and underscores the centrality of the “affirmative act” requirement in state-created danger litigation.