## Facts

- Eric Butera, a former drug user, approached the Metropolitan Police Department with information about a high-profile homicide that he said he overheard at his drug dealer’s house.
- Police agreed to use Butera as an informant/undercover operative in a planned operation tied to that investigation, including staging a drug transaction.
- On the night of the operation, a detective dropped Butera near a rear entrance to the dealer’s residence and then drove around to the front, where Butera was supposed to exit after contact was made.
- Two other officers waited at locations where they also could not see Butera and could not provide immediate protection in the alley area behind the residence.
- Before Butera could enter the house, three men attacked him in the alley and beat him to death.
- Terry E. Butera (Eric’s mother), individually and as representative of Eric’s estate, sued the District of Columbia and several officers.
- The suit included federal claims under 42 U.S.C. § 1983 (alleging substantive due process violations based on the police use of Butera in a dangerous operation and alleging Terry’s own familial-association injury) and local claims under the D.C. Survival Act and Wrongful Death Act, as well as related tort theories.
- A jury returned verdicts for the plaintiffs, including very large compensatory damages and substantial punitive damages; the district court denied defendants’ post-trial motions.
- The District and officers appealed, challenging the existence of any constitutional violation, qualified immunity, and aspects of the local-law verdicts and damages.

## Issues

1. Whether police officers can be held liable under substantive due process for harm inflicted by private actors on a non-custodial informant based on a “state-created danger” (or “state endangerment”) theory.
2. Whether a parent has a constitutionally protected substantive due process interest in companionship with an independent adult child sufficient to support an individual § 1983 claim for the child’s death.
3. Whether the individual officers were entitled to qualified immunity because any due process right asserted on these facts was not clearly established at the time.
4. Whether, notwithstanding the federal constitutional rulings, the verdicts and damages on the D.C. Survival Act/Wrongful Death Act and related tort claims could stand, and whether any damages required reduction or a new trial.

## Decision

- The court applied the general rule that the Due Process Clause ordinarily does not impose an affirmative duty on government to protect individuals from private violence absent custody or comparable restraint.
- The court concluded that, even assuming a substantive due process “state-created danger” theory could apply on these facts, the asserted right was not clearly established at the time of Eric Butera’s death; therefore, the officers were entitled to qualified immunity on the § 1983 claims based on Eric’s alleged due process rights.
- The court held that Terry Butera did not have a recognized substantive due process right to companionship with her independent adult son that could support her own § 1983 claim; her individual constitutional claim therefore failed.
- Because the federal civil-rights claims could not support liability against the officers, the court vacated the § 1983-based compensatory and punitive damages awards.
- The court nonetheless left in place, to the extent supported by local law and the opinion’s damages analysis, the jury’s findings of liability on the D.C. statutory survival and wrongful-death claims and related tort theories, and remanded for further proceedings consistent with its treatment of damages (including any required reductions or a damages-only retrial if plaintiffs declined remittitur).

## Legal Principles

- The Due Process Clause generally does not require the government to protect individuals from violence by private parties; constitutional liability typically requires custody or other state-imposed restraint, or (in some jurisdictions) affirmative state conduct that places a person in danger.
- For qualified immunity, even where a plaintiff plausibly alleges unconstitutional conduct, officers are not liable for damages unless the constitutional right was clearly established at the time so that a reasonable officer would have understood the conduct to be unlawful.
- In this circuit, at the time of the events, the contours of any substantive due process “state-created danger” claim for a non-custodial informant were not sufficiently settled to defeat qualified immunity.
- A parent’s interest in the companionship of an adult child was not recognized as a clearly established substantive due process right supporting an individual § 1983 claim for damages.
- Vacatur of federal civil-rights liability does not automatically eliminate independent state or local statutory tort liability; such claims and damages are evaluated under the governing local standards, including judicial review for excessiveness and the use of remittitur or a limited new trial where appropriate.

## Conclusion

Butera held that, while the facts raised serious questions about police conduct in using a non-custodial informant in a dangerous operation, the officers were shielded from § 1983 damages by qualified immunity because any “state-created danger” due process right was not clearly established, and the mother had no separate constitutional claim for loss of companionship with her adult son; the court vacated the federal civil-rights awards but largely preserved the case under D.C. survival and wrongful-death law subject to the appellate court’s damages rulings on remand.


Butera v. District of Columbia, 235 F.3d 637 (2001)