No Immediate Interaction, No State-Created Danger: Fourth Circuit Clarifies Limits of Substantive Due Process in Paton v. City of Norfolk

Introduction

In Kathy Paton v. City of Norfolk, Virginia, the United States Court of Appeals for the Fourth Circuit confronted harrowing allegations: that Norfolk police officers and officials helped conceal an earlier homicide, thereby emboldening a serial sexual predator who later raped and killed the plaintiff’s daughter. Kathy Paton—both individually and as Administratrix of her daughter Kelsey Paton’s estate—sought redress under 42 U.S.C. § 1983, claiming violations of substantive due process guaranteed by the Fourteenth Amendment.

The case raised two central issues:

• Whether police officers’ alleged cover-up of an earlier crime constituted an “affirmative act” that “created or increased” the risk to Kelsey, thus invoking the state-created danger doctrine.
• Whether the mother possessed an independent substantive due-process liberty interest in the posthumous bodily integrity of her child.

After the district court dismissed the complaint under Rule 12(b)(6), the Fourth Circuit, in an unpublished opinion authored by Judge Quattlebaum and joined by Judges King and Agee, affirmed. The ruling tightens the doctrinal bolts on two fronts:

1. It underscores the necessity of “immediate interaction” between the state actor and the victim for state-created danger liability, and
2. It declines to recognize a novel liberty interest in post-mortem bodily integrity, also finding the argument forfeited on appeal.

Summary of the Judgment

1. Claims on behalf of Kelsey Paton (state-created danger). Even assuming the police cover-up was an “affirmative act,” the court held that the claim fails because the officers had no interaction at all with Kelsey before the fatal assault. Existing Fourth Circuit precedent—most notably Pinder v. Johnson and Doe v. Rosa—requires “immediate interaction” or a direct nexus between the state actor’s conduct and the plaintiff’s injury. Absent that connection, the DeShaney rule (that the Constitution does not obligate the state to protect individuals from private violence) controls.

2. Mother’s individual claim (posthumous bodily integrity). The court rejected Ms. Paton’s attempt to derive a new substantive due-process right from the conjunction of (a) “familial integrity” and (b) a victim’s “bodily integrity.” The argument was deemed unpreserved in the district court and, alternatively, unsupported because such a liberty interest is neither “deeply rooted in this Nation’s history and tradition” nor recognized in Supreme Court or Fourth Circuit precedent. State statutes (Va. Code § 32.1-283(C)) cannot create substantive due-process rights.

Accordingly, the Fourth Circuit affirmed dismissal of the § 1983 claims in their entirety.

Analysis

Precedents Cited

• DeShaney v. Winnebago County DSS, 489 U.S. 189 (1989)
  Established the baseline that the Due Process Clause generally confers no affirmative duty on the state to protect individuals from private violence.
• County of Sacramento v. Lewis, 523 U.S. 833 (1998)
  Supplies the “shocks-the-conscience” threshold for substantive due-process violations.
• Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995) (en banc)
  Introduced the “immediate interaction” requirement for state-created danger in this circuit.
• Doe v. Rosa, 795 F.3d 429 (4th Cir. 2015)
  Reaffirmed the need for direct contact and held that lack of such contact defeats liability despite earlier affirmative acts.
• Graves v. Lioi, 930 F.3d 307 (4th Cir. 2019)
  Clarified that only affirmative acts creating or increasing danger—not omissions—trigger potential liability.
• Washington v. Glucksberg, 521 U.S. 702 (1997)
  Provided the analytical framework for identifying fundamental liberty interests.
• Martin v. Saint Mary’s DSS, 346 F.3d 502 (4th Cir. 2003)
  Recognized a parent’s right to familial integrity in the context of state interference with child custody.
• Hawkins v. Freeman, 195 F.3d 732 (4th Cir. 1999)
  Clarified that state laws can create procedural but not substantive due-process rights.

Legal Reasoning

1. Pleading Standard. Applying Rule 12(b)(6), the court accepted the complaint’s factual allegations but scrutinized whether, as a matter of law, they state a constitutional violation.
2. State-Created Danger Elements. The panel broke the doctrine down into two indispensable components:
   (a) Affirmative act by the state that creates or heightens danger.
   (b) Immediate interaction/nexus between that act and the plaintiff.
   While the alleged cover-up arguably satisfied (a), it failed (b) because neither the officers nor Chief Boone nor PIO Reid interacted with Kelsey prior to her death. The chain of causation thus remained too attenuated.
3. Rejection of Novel Liberty Interest. On Ms. Paton’s individual claim, the court applied Glucksberg’s historical inquiry and found no deeply rooted tradition supporting a parental right to a child’s posthumous bodily integrity. Even if such protection exists in state tort or statutory law, it is not of constitutional dimension. The court further invoked the principle of issue preservation, noting that the argument surfaced only on appeal.
4. Monell and Qualified Immunity. Because no constitutional violation was plausibly alleged, the court declined to reach municipal liability (Monell) or individual-capacity immunity. This approach reflects the axiom that “no violation, no liability.”

Impact

The decision, albeit unpublished, carries persuasive weight within the Fourth Circuit and potentially beyond:

• Pleading Guidance. Plaintiffs seeking to invoke the state-created danger doctrine must now allege—and later prove—direct, temporally proximate contact between the state actor and the victim. General allegations of “policy” or “cover-up” will not suffice.
• Boundary on Liberty Interests. By refusing to synthesize a new right from existing strands, the court signals continuing restraint in substantive due process. Litigants will face an uphill climb when advocating for novel interests, especially if arguments are not preserved below.
• Municipal & Police Accountability. The ruling may redirect plaintiffs toward state tort remedies, state FOIA, or legislative reform rather than § 1983 for claims involving negligent or even deceitful police conduct that is indirectly linked to third-party violence.
• Strategic Litigation Choices. Future § 1983 complaints in the Fourth Circuit will likely add detail establishing the requisite “immediate interaction,” perhaps by naming officer(s) who actually encountered the eventual victim or by showing the victim’s reliance on state assurances.

Complex Concepts Simplified

• 42 U.S.C. § 1983 – A federal statute allowing individuals to sue state actors who violate constitutional rights.
• Substantive vs. Procedural Due Process – Procedural due process concerns how the government acts (fair procedures). Substantive due process limits what the government may do, protecting certain fundamental rights from interference regardless of procedure.
• State-Created Danger Doctrine – A narrow exception to DeShaney where the state, by affirmative acts, puts a person in danger or makes them more vulnerable to danger from private parties.
• Immediate Interaction – Fourth Circuit gloss on state-created danger requiring direct contact between the state actor and the eventual victim.
• Rule 12(b)(6) – A procedural rule permitting dismissal of a complaint for “failure to state a claim.” Courts assume factual allegations are true but test their legal sufficiency.
• Monell Liability – Municipal liability under § 1983 exists only if a constitutional injury results from a governmental “policy or custom.”
• Liberty Interest – A fundamental right recognized by the Constitution, either explicitly (e.g., freedoms listed in the Bill of Rights) or implicitly (rights “deeply rooted” in tradition).

Conclusion

Paton v. City of Norfolk reaffirms the Fourth Circuit’s cautious approach to expanding substantive due process and the state-created danger doctrine. The court crystallizes the “immediate interaction” requirement, effectively barring claims where the state’s misconduct, however egregious, is indirect or temporally remote from the victim’s harm. It also erects a doctrinal barrier against inventing new liberty interests, underscoring that such rights must be firmly grounded in constitutional text or historical tradition, and that arguments must be timely raised.

For practitioners, the case is a roadmap of pitfalls: insufficient nexus, unpreserved theories, and over-reliance on statutory or policy arguments to bootstrap substantive due-process claims. For scholars and policymakers, it serves as a reminder of the judiciary’s self-imposed restraint in constitutional adjudication—leaving broader regulatory or remedial avenues to the political branches and state law.

Ultimately, the judgment fortifies existing limits on federal civil-rights litigation, channeling accountability for police malfeasance toward state remedies unless plaintiffs can plead (and prove) a direct constitutional injury within the narrowly drawn contours of current precedent.