State-Created Danger in the Sixth Circuit: Voluntary Assumption of Risk Defeats the “Affirmative Act” Element

Case: Joshua Steeb v. Mike Ehart (6th Cir. Jan. 26, 2026) — Recommended for Publication
Court: United States Court of Appeals for the Sixth Circuit
Posture: Appeal from dismissal under Rule 12(b)(6)

1. Introduction

Steeb v. Ehart arises from a brutal dog attack following a 911 call requesting removal of a “large, dangerous dog” with a known violent history. Plaintiff Joshua Steeb alleged that Battle Creek animal control officer Mike Ehart arrived, remained in the safety of his truck’s cab, and “insisted” that Steeb’s friend, Teresa Fitzgerald, retrieve and load the dog into a containment area in Ehart’s truck without tranquilizing the animal or providing tools such as a catchpole. The dog attacked Fitzgerald; Steeb intervened to rescue her and was mauled, sustaining permanent injuries.

Steeb sued Ehart under 42 U.S.C. § 1983, invoking the Sixth Circuit’s “state-created-danger” theory of substantive due process, and sued the City of Battle Creek for failure to train/equip. The district court dismissed, finding no plausible constitutional violation, and declined supplemental jurisdiction over state-law claims.

The core issue on appeal was whether Steeb plausibly pleaded the first element of a Sixth Circuit state-created-danger claim: that the officer took an “affirmative act” that created or increased the risk of harm from a third party (here, the dog), rather than merely failing to protect.

2. Summary of the Opinion (Majority)

The Sixth Circuit affirmed dismissal. Accepting the complaint’s facts as true under Thomas v. Montgomery, the majority held that Steeb failed to plausibly allege the “affirmative act” element required for state-created-danger liability.

The decisive doctrinal move is the majority’s treatment of consent/voluntary assumption of risk as breaking the causal chain for the affirmative-act inquiry: because Fitzgerald knowingly chose to retrieve the dog (even if reluctant and even if Ehart “insisted”), her voluntary assumption of risk constituted an intervening act that prevented Ehart’s conduct from “directly” increasing vulnerability in the manner required by Sixth Circuit precedent. Since the constitutional claim against the officer failed, the municipal claim also failed for lack of an underlying violation.

3. Analysis

3.1 Precedents Cited (and How They Drove the Result)

A. Pleading and review framework

• Peterson v. Johnson — supplied de novo review of Rule 12(b)(6) dismissals.
• Jackson v. City of Cleveland — required accepting well-pleaded facts as true and drawing reasonable inferences for the plaintiff.
• Newberry v. Silverman — set the plausibility baseline for dismissal.
• Thomas v. Montgomery — anchored the “facts as alleged” posture at the motion-to-dismiss stage.

B. The general “no duty to protect” rule and the narrow exception

• Deshaney v. Winnebago Cnty. Dep't of Soc. Servs. — the majority reiterated the foundational rule that the Constitution generally does not require the state to protect individuals from private violence.
• Jane Doe v. Jackson Loc. Sch. Dist. Bd. of Educ. — provided the Sixth Circuit’s articulation of the state-created-danger “exception” to Deshaney and supplied the cautionary theme that federal courts cannot constitutionalize every “heart-wrenching” scenario.
• Schroder v. City of Fort Thomas — quoted via Jane Doe to reinforce institutional limits on substantive due process.
• L.W. ex rel. Williams v. Skrmetti — cited for the broader observation that substantive due process as a doctrine has been “increasingly questioned,” underscoring the court’s reluctance to expand liability.

C. The Sixth Circuit’s three-element state-created-danger test

• Kallstrom v. City of Columbus — supplied the core formulation: liability may exist where state action “create[s] or increase[s] the risk” of private violence that materializes.
• McQueen v. Beecher Cnty. Schs. — provided the controlling three-part test: (1) affirmative act creating/increasing risk, (2) special danger to the plaintiff, and (3) requisite culpability. The majority resolved the case at element one.
• Ewolski v. City of Brunswick — supplied the “directly increase[d] the vulnerability” phrasing that narrowed what counts as an “affirmative act” in this circuit.
• Barber v. Overton — framed the causation inquiry as closer to proximate cause than but-for causation.

D. The key doctrinal driver: consent/assumption of risk and intervening causation

• Summar ex rel. Summar v. Bennett — the majority treated this as the controlling analogy. Because the informant knowingly agreed to cooperate “with all the dangers it presented,” the court found no sufficient affirmative act; the informant’s voluntary choice broke the causal chain.
• Nelson v. City of Madison Heights — offered the contrasting scenario where the informant did not consent to identity disclosure; there, the affirmative act element could be satisfied. The majority used Nelson and Summar to crystallize a principle: the affirmative-act element often turns on whether the victim consented to the risk-creating condition.
• Kallstrom v. City of Columbus (again) — reinforced the “no consent” theme by referencing disclosure of undercover officers’ personal information despite promises of confidentiality.

E. Non-binding comparator authority rejected

• Pagan v. Rivera — the plaintiff’s primary authority (D.N.J.). The majority distinguished it because the officer there had (for argument’s sake) conceded he used authority to create a danger by ordering a woman into a home with an abuser; Ehart made no such concession.

F. Municipal liability

• Chambers v. Sanders — supplied the straightforward rule applied: absent an underlying constitutional violation, municipal liability fails.

G. The dissent’s competing precedent set (for context)

Judge Clay’s dissent drew on additional Sixth Circuit and other authorities to argue that the complaint plausibly alleged an affirmative act, a special danger, and conscience-shocking deliberate indifference (and that qualified immunity should not be resolved on a motion to dismiss). The dissent notably invoked Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., Lipman v. Budish, EJS Props., LLC v. Toledo, Mitchell v. City of Benton Harbor, Michigan, and Hart v. Hillsdale Cnty., among others. The majority, however, resolved the appeal on the narrower Summar/Nelson consent-based understanding of the affirmative-act requirement.

3.2 Legal Reasoning (What Rule the Court Actually Announced)

A. The opinion narrows “affirmative act” through a consent-based proximate-cause lens

The majority reaffirmed that Sixth Circuit state-created-danger claims require an official act that “directly” increases vulnerability, and that the inquiry resembles proximate cause more than but-for causation (Ewolski; Barber). It then operationalized that causation inquiry with a recurring Sixth Circuit question: whether the officer “created the risk of harm to the plaintiff without the consent of the victim” (Summar).

Applying that framework, the court treated Fitzgerald’s decision to retrieve the dog as a voluntary assumption of risk that interrupts the “direct increase” causal chain. On the pleadings, Fitzgerald:

• knew the dog was dangerous,
• was not facing immediate exigency (the dog was secured in the house), and
• could have refused Ehart’s plan even if he “insisted.”

Because the court viewed Fitzgerald’s agreement as voluntary, Ehart’s conduct did not count as the kind of affirmative, non-consensual risk creation the doctrine requires.

B. “Insistence” is not “command” for affirmative-act purposes

The majority drew a practical authority line: Ehart “insisted,” but (as pleaded) did not “order” or “command” Fitzgerald in a way tied to coercive state power or sanctions. The opinion emphasizes that he was “an unarmed officer with no apparent authority to arrest or otherwise discipline Fitzgerald if she refused.” Thus, even strong persuasion or insistence is insufficient where the alleged victim still had meaningful freedom to decline.

C. The “safer before than after” framing is not enough

The court acknowledged that plaintiffs often argue they were “safer before” state involvement, but warned that using that fact alone collapses the affirmative-act requirement into but-for causation—something Sixth Circuit law rejects. It used Summar as the template: the informant, too, was “safer before” agreeing to cooperate, yet voluntariness defeated the claim.

D. Foreseeable rescuer framing does not salvage the claim

Steeb argued that by endangering Fitzgerald, Ehart foreseeably endangered Steeb as a likely rescuer. The majority accepted the framing for purposes of analysis but held that if the affirmative-act element fails as to Fitzgerald due to voluntariness, it fails “by extension” as to Steeb as well; Fitzgerald’s voluntary act operates as an intervening cause that defeats the directness/proximate-cause component.

E. Municipal liability falls with the officer-liability theory

The court’s municipal-liability holding is derivative: because no constitutional violation was plausibly pleaded against Ehart, the claim against Battle Creek necessarily fails under Chambers v. Sanders.

3.3 Impact (Likely Effects on Future Litigation and Practice)

A. A sharpened “consent” gatekeeper at element one

The most significant practical impact is the opinion’s reinforcement of a consent/assumption-of-risk screen at the very first element of the test. Plaintiffs in the Sixth Circuit should expect defendants to litigate “affirmative act” by focusing on whether the immediate risk-exposed person had a real opportunity to refuse and sufficient awareness of the general danger—especially where the alleged harm stems from a third party.

B. “Insistence” and unofficial pressure may be inadequate without coercive indicia

The decision signals that pleading strong encouragement, insistence, or a poor plan may not be enough; complaints will need plausible facts showing the state actor used governmental authority in a materially coercive way (or otherwise left the victim without meaningful choice), or that the victim did not consent to the risk-creating condition (as in Nelson).

C. Rescuer cases face a higher causation hurdle where the initial victim “chose” the risk

Even where rescue is foreseeable, plaintiffs may struggle if the court characterizes the initial person’s conduct as voluntary assumption of risk that breaks the chain. Litigants will likely respond by pleading:

• facts showing lack of meaningful choice (coercion, threats, official compulsion),
• facts showing lack of informed consent (concealed material risks), and/or
• facts placing the plaintiff in the danger zone through direct state action, independent of the third party’s or victim’s choice.

D. Limits on constitutionalizing operational failures

In theme and structure, Steeb continues a Sixth Circuit pattern (explicitly echoed via Jane Doe/Schroder) of confining substantive due process to rare, tightly-defined circumstances, leaving many tragic fact patterns to state tort law rather than § 1983.

4. Complex Concepts Simplified

5. Conclusion

Steeb v. Ehart is a significant Sixth Circuit clarification of the state-created-danger doctrine’s first element. The court held that where an individual knowingly and voluntarily assumes a risk created by an officer’s proposal—here, retrieving a dangerous dog despite awareness and opportunity to refuse—the officer’s conduct will not qualify as the requisite “affirmative act” because voluntariness breaks the direct/proximate causal chain. The ruling also underscores that a plaintiff cannot rely solely on “safer before than after” framing to satisfy element one, and that municipal liability fails absent a plausible underlying constitutional violation.