Full opinion text
MEMORANDUM AND ORDER ON MOTIONS OF DEFENDANTS AH-EARN, CONNOLLY, FITZPATRICK, GREENLEAF, KENNEDY, MORRIS, AND RING FOR JUDGMENT ON THE PLEADINGS BASED ON QUALIFIED IMMUNITY LINDSAY, District Judge. TABLE OF CONTENTS I. INTRODUCTION .94 II. FACTS. ) A. The Agents. g? B. The Use of Informants by the FBI as Alleged in the Complaint. g C. The Development of Bulger and Flemmi as Informants as Alleged in the Complaint. D. Allegations that the Agents Shielded Bulger and Flemmi from Investigation and Prosecution. to 00 E. The Murder of McIntyre in 1984 as Alleged in the Complaint. CO CO F. The Alleged Liability of the Agents. CO CO III. DISCUSSION. r — 1 A. Standard for Consideration of the Motions. i — l B. Qualified Immunity. i — ( C. Fourth Amendment. i — f D. Substantive Due Process Rights of McIntyre. t — I 1. Conspiracy Claims. r — 1 r — 1 a. General Principles of Substantive Due Process. i — 1 b. Conscience-Shocking Conduct: The Touchstone of Arbitrary Executive Conduct. © 00 c. Violation of a Fundamental Right. O CO i. Murder of McIntyre as Private Violence. H- © (a) Governmental Restraint of Victim. I — t © (b) State-Created Danger . I — *• CO ii. Murder of McIntyre as Government Action. I — GR (a) Attributing Conduct of the Informants to the Government. CO i-H i — l (b) Governmental Participation in Private Conduct. fc-i — l i — l 3. Violation by Connolly of the Clearly Established Substantive Due Process Rights of McIntyre. to to 4. Violation by Other Agents of the Clearly Established Substantive Due Process Rights of McIntyre ZD rH E. Access to the Courts. 00 CO t — t IV. CONCLUSION. .134 I. INTRODUCTION This is an action brought by Emily and Christopher McIntyre (the “plaintiffs”), as co-administrators of the Estate of John L. McIntyre (the “Estate”), against James Ahearn, John J. Connolly, Jr., Robert Fitzpatrick, James Greenleaf, Roderick Kennedy, John M. Morris, and James A. Ring (collectively, the “agents,” all of whom were agents of the Federal Bureau of Investigation (“FBI”) at various times relevant to the complaint); the United States of America; and Kevin Weeks, James J. Bulger, and Stephen J. Flemmi, purported members of the Winter Hill Gang, an alleged criminal organization operating in the Greater Boston area. The complaint alleges that in 1984, McIntyre was murdered by Weeks, Bulger, Flemmi, or other members of the Winter Hill Gang. The complaint further alleges that the agents are liable for the murder of McIntyre because the agents chose to protect Bulger and Flemmi — - allegedly “top echelon” informants of the FBI— from prosecution, so that the agents could boost their own careers by using the information Bulger and Flemmi provided to them to investigate, arrest, and prosecute members of La Cosa Nostra (“LCN,” commonly known as the “Mafia”), a criminal organization that was a rival to the Winter Hill Gang. As part of his alleged efforts to shield Bulger and Flemmi from prosecution, Connolly, with the knowledge, assistance, or acquiescence of the other agents (except Ahearn), allegedly informed Bulger and/or Flemmi that McIntyre was providing the United States Drug Enforcement Administration (the “DEA”) with information that incriminated Bulger and Flemmi in criminal activity within DEA’s area of concern. According to the plaintiffs, the agents made, caused, or permitted this disclosure, knowing, or with deliberate indifference to the possibility, that Bulger and Flemmi would in turn murder McIntyre or cause him to be murdered. The plaintiffs also allege that all of the agents subsequently violated the constitutional rights of the Estate by engaging in “cover ups” of the murder of McIntyre and of numerous other criminal activities of Bulger and Flemmi. The agents allegedly engaged in this misconduct to preserve the status of Bulger and Flemmi as top echelon informants and to conceal the FBI’s corrupt relationship with them. The complaint is in thirteen counts. In counts IX through XII, the plaintiffs assert claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 408 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) against various combinations of the agents for the deprivation of rights guaranteed by First, Fourth and Fifth amendments to the Constitution of the United States. The breakdown of these claims is as follows: Count IX: This count alleges a violation of the Fourth Amendment right of McIntyre to be free from unreasonable seizure by the government. The claim is asserted against all of the agents except Ahearn. Count X: This count alleges a violation of the Fifth Amendment substantive due process right of McIntyre not to be deprived of his life or liberty by the government. The claim is asserted against all of the agents except Ahearn. Count XA: This count alleges a violation of the Fourth and Fifth Amendment rights of McIntyre described in counts IX and X. The claim is asserted against Greenleaf and Ring under a theory of supervisory liability. Count XI: This count alleges a conspiracy in violation of the Fourth and Fifth Amendment rights of McIntyre described in counts IX and X. The claim is asserted against all the agents. Count XII: This count alleges a conspiracy to violate the First and Fifth Amendment right of the Estate to access to the courts. The claim is asserted against all the agents. Before the court are the motions of all of the agents for judgment on the pleadings as to the Bivens claims, based on the defense of qualified immunity. On April 23, 2003, I ordered the agents moving for dismissal on the ground of qualified immunity to file a joint memorandum in support of their several motions to the extent that it was practicable to do so. McIntyre v. United States, Civ. No. 01-10408 (D.Mass. Apr. 23, 2003) (docket entry 280). An individual memorandum was to be filed only if the motion of an individual agent “raise[d] issues, with respect to qualified immunity, that are unique in his circumstances.” Id. Pursuant to this order, Ahearn, Fitzpatrick, Greenleaf, Kennedy, and Ring, together with four other agent defendants in related cases, submitted their Consolidated Memorandum of Law in Support of the Individual Defendants’ Motions to Dismiss or for Judgment on the Pleadings on the Basis of Qualified Immunity (“Def.s’ Cons.Mem.,” docket entry 308). Morris filed a motion to join the motions of the other defendants to dismiss on grounds of qualified immunity. Similarly, Connolly filed a motion for judgment on the pleadings based on qualified immunity. The plaintiffs in this case joined with plaintiffs in related cases in filing the Plaintiffs’ Consolidated Brief in Opposition to Defendants’ Motion to Dismiss or for Judgment on the Pleadings on the Basis of Qualified Immunity (“Pl.s’ Cons.Br. Opp.,” docket entry 321 in McIntyre). The individual defendants filed a consolidated reply (docket entry 324). II. FACTS For the purpose of the present motions, I must' treat all well-pleaded facts, and all reasonable inferences therefrom, as true. Martin v. Applied Cellular Tech., Inc., 284 F.3d 1, 6 (1st Cir.2002); United States v. United States Currency, $81,000.00, 189 F.3d 28, 33 (1st Cir.1999); see also Collier v. City of Chicopee, 158 F.3d 601, 602 (1st Cir.1998) (motions for judgment on the pleadings under Fed.R.Civ.P. 12(c) warrant the same treatment as motions to dismiss under Fed.R.Civ.P. 12(b)(6)). A. The Agents ■ A brief identification of each agent, based on the complaint, is helpful in understanding the factual allegations. Agents assigned to the Organized Crime Squad of the FBI Boston Office. Connolly was a special agent in the Organized Crime Squad (the “OCS”) of the FBI field office in Boston (the “FBI Boston Office”) from approximately February 1973 until his retirement from the FBI in 1990. During this time, he was the “handler” of Bulger and Flemmi. Morris was assigned to the FBI Boston Office roughly from March 1972 until November 1991. Between December 1977 and January 1983, Morris was the chief of the OCS and was Connolly’s direct supervisor. After Morris left the OCS, he continued to have contact with Connolly, Bulger, and Flemmi. Ring was the chief of the OCS from approximately January 1983 until 1990 and was Connolly’s direct supervisor when McIntyre was murdered. The “special agents in charge” of the FBI Boston Office. Greenleaf was the special agent in charge (the “SAC”) of the FBI Boston Office from approximately November 1982 until December 1986 and was the SAC at the time of the murder of McIntyre. Fitzpatrick was an “assistant special agent in charge”(“ASAC”) of the FBI Boston Office assigned to the McIntyre matter at the time Bulger and Flem-mi murdered McIntyre. Aheam assumed the position of SAC of the FBI Boston Office upon Greenleaf s departure and continued in that position for the remainder of the time period relevant to the complaint. Kennedy. Kennedy was a special agent in the FBI Boston Office when McIntyre was murdered in 1984. He was the “operational liaison with other agencies concerning narcotics matters.” Compl. ¶ 251. B. The Use of Informants by the FBI as Alleged in the Complaint In the mid-1960’s the FBI, including the FBI Boston Office, began to investigate LCN. In the Greater Boston area, LCN was in direct competition with the Winter Hill Gang — a more local, clandestine criminal organization. As the FBI investigated LCN, the development of “top echelon” criminal informants became a high priority for the agency. Top echelon informants were individuals who “could provide a continuous flow of quality criminal intelligence information regarding the leaders of organized crime.” Id. 139. Information provided to the FBI by its informants permitted the FBI to prosecute and convict members of LCN. Thus, an FBI agent’s success in developing informants— particularly top echelon informants— could significantly advance the agent’s career. Although often ignored in the FBI Boston Office, guidelines in the FBI Manual of Instructions (the “Guidelines”) prescribed limitations on the use of informants. The Guidelines required that special care be taken not only to minimize ... use [of informants] but also to ensure that individual rights are not infringed and that the government itself does not become a violator of the law. Informants as such are not employees of the FBI, but the special relationship of an informant to the FBI imposes a special responsibility upon the FBI when the informant engages in activity where he has received, or reasonably thinks he has received encouragement or direction for that activity from the FBI. Id. ¶ 110. Similarly, the Guidelines advised agents that “[t]he FBI may not use informants ... for acts ... which the FBI could not authorize for its undercover agents.” Id. ¶ 111 (alterations in original). Further, the Guidelines mandated that “[u]nder no circumstances shall the FBI take any action to conceal a crime by one of its informants.” Id. ¶ 112. “[I]f the FBI learned that one of its informants had violated the law in furtherance of his assistance to the FBI,” the FBI was required to report the crime to law enforcement or prosecutive authorities, or to the United States Department of Justice. Id. ¶¶ 113; 114. The Guidelines contained the same mandate where the FBI had “knowledge that one of its informants had committed a serious crime unconnected with his FBI assignments.” Id. ¶ 115 (internal quotation marks omitted). The Guidelines also dictated that agents seek pre-authorization to permit an informant to commit a crime in order to obtain information for the FBI. Finally, the Guidelines required agents to “avoid any disclosure to anyone which might permit identification of a criminal informant or even cast suspicion on a criminal informant.” Id. ¶ 109. C. The Development of Bulger and Flemmi as Informants as Alleged in the Complaint Flemmi was first developed as a top echelon informant in 1967 by H. Paul Rico, then a special agent in the FBI Boston Office. At the time, Rico knew Flemmi was “a .suspect of [sic] possibly being involved in gangland slayings.” Id. ¶47. “Rico promised Flemmi protection from the FBI if Flemmi would become an FBI informant.” Id. ¶ 43. Rico proved true to that promise. For example, in 1969, he warned Flemmi to leave Boston because Flemmi would soon be indicted; in 1974, Rico successfully arranged to have a murder charge against Flemmi dropped upon Flemmi’s return to Boston. The same year that Flemmi returned to Boston, Connolly transferred from an FBI field office in New York to the FBI Boston Office. As a special agent in the OCS, Connolly sought to cultivate Bulger as an informant. Despite the fact that Bulger was known to be violent, Connolly extended the same promise of protection to Bul-ger that Rico had given Flemmi. In 1975, Connolly succeeded in having Bulger designated as a “top echelon” informant. Shortly thereafter, Flemmi, who was working with Bulger, but was no longer an official FBI informant, also began providing information to Connolly. Flemmi was eventually re-registered as an FBI informant in 1980. Connolly continued to act as the “handler” of Bulger and Flemmi until he retired from the FBI in 1990, even though, at'times, he led FBI headquarters in Washington, D.C. to believe that he was no longer using them as informants. D. Allegations that the Agents Shielded Bulger and Flemmi from Investigation and Prosecution All of the agents “knew that despite their cooperation with the FBI, Bulger and Flemmi were still engaged in serious criminal wrongdoing.” Id. ¶ 84. The agents went to great lengths to protect Bulger and Flemmi from investigation and prosecution by state law enforcement agencies, other federal agencies, and even other offices and divisions of the FBI. The agents had several incentives to ensure that the criminal activities of Bulger and Flemmi were not exposed. The information that Bulger and Flemmi provided to Connolly and Morris enabled them and the other agents to investigate and prosecute key members of LCN, resulting in prestige not only for Connolly and Morris, but for those above them in the chain of command. Further, as Connolly and Morris became more entrenched in their relationship with Bulger and Flemmi, Connolly and Morris treated Bulger and Flemmi more as friends than as criminals, accepting from Bulger and. Flemmi gifts,. including wine and money. If Bulger and Flemmi were prosecuted, their corrupt relationship with Connolly and Morris would have been disclosed. Moreover, with each improper deflection of an investigation of Bulger and Flemmi, it became more important for Connolly, Morris, and the other agents to prevent the previous “cover ups” from being discovered. One of the ways in which Connolly and Morris helped Bulger and Flemmi to avoid investigation and prosecution was by alerting them that criminal associates of the two Winter Hill gangsters were cooperating or might cooperate with law enforcement agencies in providing information about the gangsters’ criminal activities. Such disclosures prompted Bulger and Flemmi to murder persons who had been identified by Connolly and/or Morris as actual or possible informants. After each murder, the agents failed to perform a thorough investigation of the .crime and prevented other law enforcement agencies from discovering the circumstances of the victim’s death. In 1976, for example, Bulger and Flem-mi learned from Connolly that Richard Castucci was providing the FBI with specific information regarding the whereabouts of two fugitive members of the Winter Hill Gang. As a result of Connolly’s disclosure, Bulger and Flemmi murdered Castucci on or about December 29, 1976. In 1981, Bulger and Flemmi learned from Connolly that Oklahoma businessman Roger Wheeler, an official of World Jai Alai (“WJA”), suspected that John Callahan, the president of WJA, was skimming money from WJA for the Winter Hill Gang. On May 27, 1981, Bulger, Flemmi and others caused Wheeler to be shot and killed in Tulsa, Oklahoma. In January. 1982, Brian Halloran, a member of the Winter Hill Gang, began to cooperate with the FBI Boston Office and implicated Bulger, Flemmi, and Callahan in the Wheeler murder. Morris learned of Halloran’s cooperation and passed on the information to Connolly. Connolly in turn disclosed Hal-loran’s cooperation to Bulger and Flemmi, and, on May 11, 1982, Bulger and others gunned down Halloran outside a café in South Boston. Later that year, Connolly alerted Bulger and Flemmi that law enforcement agencies were seeking to question Callahan about the Wheeler and Hal-loran murders; as a result, Bulger and Flemmi caused Callahan to be murdered on or about August 1, 1982. E. The Murder of McIntyre in 1984 as Alleged in the Complaint In mid-October 1984, John McIntyre, the engineer on a ship called the Valhalla, began to cooperate with the local police in the investigation of criminal activities in which Bulger was involved. He revealed that Bulger participated in an attempt to use the Valhalla to smuggle weapons from Massachusetts to the Irish Republican Army (“IRA”) in Ireland. The local police arranged for agents from the United States Customs Service and the FBI, including defendant Kennedy, to participate in the questioning of McIntyre. During the interview with Kennedy, McIntyre repeated his allegations about Bulger’s involvement in the arms shipments. At the time of this interview, Kennedy was aware of at least some of the ongoing criminal activities of Bulger and Flemmi. Kennedy reported the information he received from McIntyre to Greenleaf; Connolly was present when these FBI agents discussed McIntyre’s cooperation with law enforcement agencies. In October or November 1984, Bulger and his associates learned from Connolly that McIntyre was informing authorities about illegal activities carried out by Bulger and his associates. As a result of this disclosure, Bulger, Flem-mi and Weeks kidnapped, tortured, and murdered McIntyre on or about November 30,-1984. After the disappearance of McIntyre, the FBI Boston Office told his family that he was a fugitive and failed to undertake any effort to investigate McIntyre’s disappearance. Moreover, in the years following the murder of McIntyre, all of the agents continued to protect Bulger and Flemmi from investigation and prosecution with respect to any of their criminal activities. See generally id. ¶¶ 298-365, 472, 473. F. The Alleged Liability of the Agents In addition to the allegations set out above, the plaintiffs allege that the conduct of all the agents, except Ahearn, resulted in the death of McIntyre because the agents continued to utilize Bulger and Flemmi as top echelon informants; failed to control the criminal activities of Bulger and Flemmi; failed to enforce the [Guidelines] governing high echelon informants, including Bulger and Flemmi; ... failed to inform the appropriate law enforcement or prosecutive authorities of the criminal activities of Bulger and Flemmi; continued to allow Connolly to remain Bulger and Flemmi’s “handler” when it was known or should have been known that he should have been removed from that position; failed to warn and protect McIntyre after he agreed to cooperate with federal law enforcement agencies; and failed to warn and protect McIntyre after it became known to the Bulger Group that McIntyre was cooperating with law enforcement officials concerning the illegal activities of the Bulger Group. Id. ¶ 421, 427. The plaintiffs further assert that Ring and Greenleaf are liable for the murder of McIntyre because they failed to supervise Connolly in his role as the “handler” of Bulger and Flemmi. Likewise, the plaintiffs claim that Ring and Greenleaf allegedly failed to supervise Kennedy in his duty to warn and protect McIntyre. III. DISCUSSION A. Standard for Consideration of the Motions As explained above, when ruling on motions brought under Fed.R.Civ.P. 12(c), I must accept as true the factual allegátioris of the complaint and draw all reasonable inferences therefrom in favor of the plaintiff; I may not grant the motion unless “it appears beyond a doubt that the plaintiff[s] can prove no set of facts in support of [their] claimfs] which would entitle [them] to relief.” United States Currency, $81,000.00, 189 F.3d at 33. B. Qualified Immunity Under the qualified immunity doctrine, “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly ■ established ■ ... constitutional fights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Indeed, qualified immunity is meant to protect government officials not just from ultimate liability, but from the burdens of litigation itself. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Whether a government actor enjoys the protection of qualified immunity in a given case is an issue that should be decided, as a matter of law, at the earliest possible stage of a case. Anderson v. Creighton, 483 U.S. 635, 646, n. 6, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Nonetheless, “pre-trial resolution [of the question of qualified immunity] sometimes will be impossible because of a dispute as to material facts. In such a case, the factual issues must be decided by the trier of fact .... ” Kelley v. LaForce, 288 F.3d 1, 7 (1st Cir.2002) (citation omitted). In determining whether qualified immunity applies in a specific case, a court must “first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, and if so, proceed[] to determine whether that right was clearly established at the time of the alleged violation.” Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (quoting Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999)); see also Soto v. Flores, 103 F.3d 1056, 1064 (1st Cir.1997). “[T]he inquiry whether the right at issue was clearly established properly focuses ‘not upon the right at its most general or abstract level, but at the level of its application to the specific conduct being challenged.’ ” Singer v. Maine, 49 F.3d 837, 845 (1st Cir.1995) (quoting Wiley v. Doory, 14 F.3d 993, 995 (4th Cir.1994)). Where a plaintiff seeks to hold a defendant liable by virtue of the defendant’s supervisory authority over a subordinate, who violated a constitutional right of the plaintiff, “the ‘clearly established’ prong of the qualified immunity inquiry is satisfied when (1) the subordinate’s actions violated a clearly established constitutional right, and (2) it was clearly established that a supervisor would be liable for constitutional violations perpetrated by his subordinates in that context.” Camilo-Robles v. Hoyos, 151 F.3d 1, 6 (1st Cir.1998); see also Poe v. Leonard, 282 F.3d 123, 134 (2d Cir.2002) (agreeing with the two-prong test in Camilo-Robles and characterizing the second prong as requiring the plaintiff to show that the “supervisory liability doctrine under which the [plaintiff] wishes to hold [the supervisor] liable” was clearly established). Finally, if a defendant has violated a clearly established right, a court must then consider “whether a reasonable official, similarly situated would understand that the challenged conduct violated a constitutional norm.” Rivera-Jimenez, 362 F.3d at 93. C. Fourth Amendment The plaintiffs allege that the murder of McIntyre deprived McIntyre of his right under the Fourth Amendment to be free from unreasonable governmental seizure and his Fifth Amendment right to substantive due process. The plaintiffs, however, cannot maintain claims for the violation of both of these rights, because “where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process/ must be the guide for analyzing these claims.’ ” Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). It is therefore important that I consider the Fourth Amendment claims as a threshold matter. The agents argue that the murder of McIntyre was not a Fourth Amendment seizure because a seizure requires “governmental termination of freedom of movement through means intentionally applied,” Brower V: County of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), and the plaintiffs have failed “to assert that, the individual defendants intended to bring about a particular result [ie., death] with regard to a particular decedent,” Def.s’ Cons.Mem. at 26. The agents also maintain that a seizure only occurs when there is “direct police action intended to cause a particular result,” and that, in this case, the claimed seizures were not “effectuated by Government personnel such as the individual defendants.” Id. at 25, 26. In contrast, the plaintiffs argue that the murder of McIntyre was “intended and [was] for the purpose of furthering [a] criminal enterprise” comprising Connolly, Morris, and others, and that Bulger and Flemmi were acting as “representative^ of the government” when they murdered McIntyre. Pl.s’ Cons.Br. Opp. at 19, 20. Neither the argument of the agents nor that of the plaintiffs completely resolyes the question of whether the plaintiffs have alleged a seizure within the meaning of the Fourth Amendment. While I- cannot glean from the agents’ memorandum how they would define “direct police action,” it is “well established that unlawful acts performed by informants at the instance of Government officials may, for Fourth Amendment purposes, be treated as acts of the Government itself.” United States v. Bennett, 729 F.2d 923, 925 (2d Cir.1984). Here, the plaintiffs have adequately pleaded government action by alleging that the agents acted in concert with Bulger and Flemmi and/or improperly supervised other FBI employees who did. Moreover, the plaintiffs have explicitly or implicitly alleged that the agents either intended the death of McIntyre and/or improperly supervised other defendants who so intended, thus satisfying the state of mind requirement for a Fourth Amendment seizure. Despite the, problems with the agents’ position and a superficial appearance of soundness in the plaintiffs’ position, the plaintiffs’ argument nevertheless fails to carry the day for them. Apparently the plaintiffs interpret Brower as holding that a Fourth Amendment seizure occurs whenever “there is a governmental termination of freedom of movement through means intentionally applied.” 489 U.S. at 597,109 S.Ct. 1378; Brower does not, however, stand for that proposition. In Broiver, the issue facing the Court was whether a Fourth Amendment seizure occurred when a suspect, leading police in a high-speed pursuit, was killed by crashing into a police roadblock, when he could have voluntarily stopped earlier. The Court explained that, where a suspect being pursued by police unexpectedly loses control of his car and crashes, no seizure occurs because the mechanism that terminated the suspect’s freedom of movement (his unexpected loss of control of the car) was not same mechanism the officers employed in an effort to seize the suspect (show of authority through flashing lights and siren). The Court held, however, that in the case before it, a seizure had occurred because, by setting up a roadblock, the defendants intended to terminate the suspect’s freedom of movement in the very manner that it happened: It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmen-tally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied. Id. at 596-97, 109 S.Ct. 1378 (second emphasis added). Contrary to the implication the plaintiffs find in the foregoing language, the passage indicates that “governmental termination of freedom of movement through means intentionally applied” is merely one element of a Fourth Amendment seizure— not the entire definition of such a seizure. While all seizures are governmental terminations of freedom of movement through means intentionally applied, the reverse is not true: not all governmental terminations of freedom of movement through means intentionally applied are seizures. “[Governmental conduct which is not actuated by an investigative or administrative purpose will not be considered a ‘search’ or ‘seizure’ for purposes of the Fourth Amendment.” Heinrich ex rel. Heinrich v. Sweet, 62 F.Supp.2d 282, 317 (D.Mass. 1999) (quoting United States v. Attson, 900 F.2d 1427, 1430 (9th Cir.1990) (dismissing claim that federal defendants “seized” patients by conducting unproven and dangerous medical experiments without their knowledge; complaint stated claim, however, for violation of the patients’ substantive due process rights)). The Brower decision was necessarily limited, by the factual circumstances of the case, to a discussion of the means by which the government effected the seizure. Because the relevance of the Fourth Amendment to a police pursuit of a fleeing suspect is patent, the Brower court did not need to consider whether the officer’s conduct in question was actuated by an administrative or investigative purpose. In other cases, however, the distinction between police conduct actuated by an administrative or investigative purpose and police conduct actuated by some other purpose must be made. The Second Circuit’s analysis in Hemphill v. Schott, 141 F.3d 412 (2d Cir.1998), is helpful on this point. In Hemphill, the court held that the alleged conduct of police officers in assisting a private citizen to shoot the plaintiff in the course of the officers’ arrest of the plaintiff was not a seizure within the meaning of the Fourth Amendment, but that the conduct did deprive the plaintiff of his substantive due process rights. According to the plaintiff in that case, when the defendant officers arrived at the scene of an armed robbery, they found that the victim, a store owner and retired police officer, had been shot in the leg by the plaintiff. The officers asked the store owner if he wanted to go directly to the hospital, and he replied that he wanted to accompany the officers in their pursuit of the plaintiff— who had fled in a jeep— because the store owner wanted to “get them.” Id at 414. The officers permitted the store owner to ride in their patrol car and at some point gave him one of their guns. The officers learned that the jeep had stopped at a parking lot and proceeded to that site where, during the plaintiffs standoff with the police, the store owner and an on-duty police officer shot the plaintiff. The plaintiff, acting pro se, brought a claim under § 1983 against the officers, claiming the defendants had used “excessive force” and “unlawful action” to deprive him of life and liberty. Id at 414. Without addressing the plaintiffs allegations about the role the officers allegedly played in “aiding and abetting” the private citizen’s shooting of the plaintiff, the district court granted the defendants’ motions for summary judgment, holding that the force used by the police officer who shot the plaintiff was reasonable for purposes of the Fourth Amendment. On appeal, the officers argued that their conduct with respect to the private citizen “must be analyzed exclusively under the requirements of the Fourth Amendment” because it “occurred in the context of [the plaintiffs] arrest.” Id at 418. The Second Circuit disagreed, and, in reversing the decision of the trial court, explained that while some of the facts that comprise [the plaintiffl’s allegations with respect to the Officers’ aiding and abetting [the private citizen] occurred in the “context” of his arrest in a physical sense, the Officers’ alleged actions with respect to [the private citizen] form a different kind of claim from excessive force in effecting an arrest. Graham’s holding that excessive force claims in the context of an arrest are to be analyzed under the Fourth Amendment’s objective standards does not extend to this unusual situation in which the police officers allegedly engaged in a deprivation of rights coincident with, but, distinct from, their arrest of the suspect. Id. at 418-419. When compared to the more subtle circumstances in Hemphill, where the substantive due process violation was “coincident” to, yet distinctive from, the police’s arrest of the victim, the inapplicability of the Fourth Amendment to the allegations of the present plaintiffs is obvious. The plaintiffs have not alleged facts suggesting that the murder of McIntyre was “governmental conduct ... actuated by an investigative or administrative purpose.” Indeed, the plaintiffs have argued that the murders were “for the purpose of furthering the criminal enterprise” among Bulger, Flemmi, Connolly, Morris, and others. Pl.s’ Cons.Br. Opp. at 19. Moreover, the FBI was not investigating McIntyre. On the contrary, the plaintiffs allege that McIntyre was murdered to shut down or prevent investigations of criminal activity of Bulger and Flemmi. Because the Fourth Amendment is not the source of a constitutional right the agents may have violated when they allegedly caused the murder of McIntyre, the plaintiffs have not stated a claim against the agents under that Amendment. Thus, the motions of the agents for judgment on the pleadings on the Fourth Amendment claims (counts IX, XA, and XI, to the extent the latter two concern the Fourth Amendment), are GRANTED. D. Substantive Due Process Rights of McIntyre The plaintiffs have alleged in counts X, XA, and XI of their complaint that the agents violated the substantive due process right of McIntyre to life and liberty by acts and omissions that led to his murder. In their qualified immunity defense as to these claims, the agents argue that (1) the murder of McIntyre was not “government action,” and (2) McIntyre did not have clearly established substantive due process rights that would have required the agents to protect him from private violence. For the reasons set forth below, I deny in part and grant in part the motions of the agents. 1. Conspiracy Claims Before embarking on an analysis of whether the conduct of the agents regarding the murder of McIntyre violated his substantive due process rights, I will apply two principles that will eliminate one of the conspiracy claims in this case. In count XI the plaintiffs allege that Ahearn violated McIntyre’s substantive due process rights by joining a conspiracy whose members had previously caused McIntyre’s murder in furtherance of the conspiratorial object of protecting Bulger and Flemmi. The complaint, however, does not contain any reference to conduct by Ahearn occurring prior to the death of McIntyre. It is therefore a legal and factual impossibility that Ahearn violated the substantive due process rights of McIntyre, because those rights terminated at the time of McIntyre’s death. See Judge v. Lowell, 160 F.3d 67, 76 n. 15 (1st Cir.1998), overruled on other grounds by Educadores Puertorriqueños en Accion v. Hernandez, 367 F.3d 61 (1st Cir.2004). The claims against Ahearn cannot stand even if the murder of McIntyre and Ahearn’s concealment of the circumstances of that murder were in furtherance of a single conspiratorial object. Id.; Estate of Halloran v. United States, 268 F.Supp.2d 91, 96 (D.Mass.2003). Thus, I grant defendant Ahearn’s motion for judgment on the pleadings as to count XI of the complaint. There is a second reason that impels me to grant the motions of Morris, Connolly, Kennedy, Fitzpatrick, Ring, and Greenleaf as to count XI of the McIntyre complaint. The stated object of the conspiracy described in count XI was to protect Bulger and Flemmi from investigation and prosecution. In a Bivens claim based on a theory of conspiratorial liability, however, the plaintiffs must allege that the agents “act[ed] in concert” to (1) deprive the decedents of their civil rights; or to (2) “commit a lawful act,” “the principal element of which is an agreement between the [agents] to inflict an [unconstitutional injury] upon the [decedents].” Earle v. Benoit,. 850 F.2d 836, 844 (1st Cir.1988) (internal quotation marks omitted). In other words, the plaintiffs must allege that the underlying purpose of the agents in conspiring was to commit the constitutional violation. In Estate of Rallaran, for example, I held that a claim virtually identical to count XI of the present complaint failed to state a claim for a Bivens conspiracy claim, because the plaintiff had not alleged that the object of the conspiracy was to deprive the decedent his constitutional rights. 268 F.Supp.2d at 96. I pointed out that “the [plaintiff] is not able to show that the goal of protecting law enforcement informants is- wrongful or unlawful,” and I suggested that “law enforcement agents regularly form common plans to protect their sources as a matter of good investigative practice.” Id at 95. Count XI suffers the same infirmity as the claim I dismissed in Halloran. Even if the agents foresaw or should have foreseen that the acts furthering their conspiratorial object would deprive McIntyre of his substantive due process rights, the claim cannot go forward because the plaintiffs have not alleged that the deprivation was the object or “principal element” of the agents’ agreement. Cfi Lowden v. William M. Mercer, Inc., 903 F.Supp. 212, 220 (D.Mass.1995) (dismissing civil rights conspiracy claim brought under 42 U.S.C. § 1985(3) to deprive plaintiff of her right to interstate travel where complaint alleged a conspiracy to prevent plaintiff from meeting with out-of-state corporate officials to discuss plaintiffs allegations of employment discrimination; statute provided protection against conspiracies for the purpose of depriving persons of constitutional rights, whereas defendants’ purpose was to prevent plaintiff from meeting with corporate officials regardless of their location; interference with plaintiffs interstate travel was “incidental”). Permitting a Bivens conspiracy claim to go forward where the constitutional deprivations were merely “foreseeable” contravenes the principle that “the Constitution does not guarantee due care on the part of state officials; liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process.” County of Sacramento v. Lewis, 523 U.S. 833, 848, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Accordingly, the motions of all of the agents for judgment on the pleadings are hereby GRANTED as to count XI of the complaint. 2. The Substantive Due Process Claim Against Connolly Although, all of the agents allegedly protected Bulger and Flemmi from investigation and prosecution, Connolly’s alleged misconduct is at the heart of the plaintiffs allegations. Connolly was the agent whose alleged misconduct had the closest nexus to the murder of McIntyre: Connolly allegedly revealed McIntyre’s informant status to Bulger and Flemmi, knowing that the disclosure would result in injury to McIntyre. The alleged misconduct of the other agents consists primarily of acts or failures to act in matters concerning Connolly’s “handling” of Bulger and Flemmi. Thus, a necessary condition to the liability of these agents for a violation of the clearly established substantive due process rights of McIntyre is that Connolly is liable for such a violation. If Connolly did not violate the clearly established substantive due process rights of McIntyre, then any misconduct by the other agents with respect to the murder of McIntyre will not rise to the level of a constitutional violation. I therefore first examine whether the plaintiffs have sufficiently alleged that Connolly violated the clearly established substantive due process rights of McIntyre. a. General Principles of Substantive Due Process The Fifth Amendment óf the Constitution of the United States mandates that “[n]o person shall ... be deprived of life, liberty, or property without due process of-law.” U.S. Const. amend. V. The “touchstone of due process is protection of the individual against arbitrary action of the government.” County of Sacramento, 523 U.S. at 845, 118 S.Ct. 1708 (quoting Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)). The Fifth Amendment guarantees two types of due process— procedural and substantive. Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). Whereas procedural due process “provide[s] a guarantee of fair procedure in connection with any deprivation of life, liberty, or property” by the government, due process, in the substantive sense, “protects individual liberty against ‘certain government actions regardless of the fairness of the procedures used to implement them.’ ” Id. (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). The “individual liberties]” protected by the guarantee of substantive due process are “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ ” Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (quoting Collins, 503 U.S. at 125, 112 S.Ct. 1061), and so “ ‘implicit in the concept of ordered liberty’ that ‘neither liberty nor justice would exist if they were sacrificed,’ ” id at 721, 117 S.Ct. 2258 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)). b. Conscience-Shocking Conduct: The Touchstone of Arbitrary Executive Conduct The guarantee of substantive due process “limits what the government may do in both its legislative ... and its executive capacities,” and the “criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue.” County of Sacramento, 523 U.S. at 846, 118 S.Ct. 1708. Legislation infringing a litigant’s fundamental rights is arbitrary in the constitutional sense unless the manner of “the infringement is narrowly tailored to serve a compelling state interest.” Glucksberg, 521 U.S. at 721, 117 S.Ct. 2258 (quoting Flores, 507 U.S. at 302, 113 S.Ct. 1439). The touchstone of arbitrariness of executive conduct is of necessity different from that of legislation. Because “only the most egregious official conduct can be said to be ‘arbitrary in the constitutional sense,’ ” County of Sacramento, 523 U.S. at 846, 118 S.Ct. 1708 (quoting Collins, 503 U.S. at 129, 112 S.Ct. 1061), “the substantive component of the Due Process Clause is violated by executive action only when it ‘can properly be characterized as ... conscience shocking,’ ” id at 847, 112 S.Ct. 1061 (quoting Collins, 503 U.S. at 128, 112 S.Ct. 1061). The conscience-shocking standard provides relief where government officials have “abus[ed] [their] power, or employed] it as an instrument of oppression,” id at 846, 112 S.Ct. 1061 (quoting Collins, 503 U.S. at 126, 112 S.Ct. 1061), while it “preserves] the constitutional proportions of constitutional claims,” and prevents the demotion of the Constitution “to a font of tort law,” id at 848 n. 8. Thus, “[o]utside of a few narrow categories, like the safeguarding of prisoners who have been wholly disabled from self-protection, this means conduct that is truly outrageous, uncivilized, and intolerable.” Hasenfus v. LaJeunesse, 175 F.3d, 68, 72 (1st Cir.1999) (citing County of Sacramento, 523 U.S. at 847, 118 S.Ct. 1708). It is only where “the necessary condition of egregious behavior [is] satisfied” that there is “a possibility of recognizing a substantive due process right to be free of such executive action.” County, of Sacramento, 523 U.S. at 847 n. 8, 118 S.Ct. 1708. Admittedly, the term “conscience-shocking” is far from self-defining. The Supreme Court has observed that “the measure of what is conscience shocking is no calibrated yard stick, [although] it does ... ‘poin[t] the way.’ ” County of Sacramento, 523 U.S. at 847, 118 S.Ct. 1708 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973)). There are, however, some clear markers on the measuring stick: “liability for negligently inflicted harm is categorically beneath the threshold of constitutional due process” while “conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Id. at 849, 118 S.Ct. 1708. Official acts falling somewhere between these two benchmarks “may be actionable” depending on the circumstances. Id. As alleged in the complaint the conduct of Connolly in relation to the murder of McIntyre is conscience-shocking because it was “conduct intended to injure [McIntyre] in some way unjustifiable by any government interest.” According to the plaintiffs’ allegations and reasonable inferences from those allegations, Connolly purposefully revealed McIntyre’s cooperation with the DEA to Bulger and Flemmi. At the time of disclosure, Connolly knew that, under any circumstance, revealing the identity of a confidential informant could result in the informant’s death. He also fully appreciated that the danger was especially high in revealing to Bulger and Flemmi the identity of informants who provided information about them to law enforcement agencies. Connolly knew that Bulger and Flemmi had committed murders, and that they had murdered other informants whose identities had been revealed to them. Thus, the plaintiffs have alleged that the disclosure by Connolly of McIntyre’s confidential informant status to Bulger and Flemmi was not only “conduct intended to injure” McIntyre, but also conduct intended to injure him fatally. Moreover, the conduct was “unjustifiable by any government interest.” It is true that the government had a legitimate interest in investigating and prosecuting members of LCN for their criminal activities, and, in a most perverse sense, the death of McIntyre furthered that lawful goal. With good reason, however, neither Connolly nor any of the other agents has advanced a Swiftian proposal that the government’s interest in prosecuting LCN warranted offering up McIntyre as a sacrificial lamb. Indeed, -it is a fundamental tenet of the Constitution that the ends of law enforcement do not justify all means used to fight crime. See, e.g., Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (“To declare that in the administration of the criminal law the end justifies the means— to declare that the government may commit crimes in order to secure the conviction of a private criminal— would bring terrible retribution.”) (Brandéis, J., dissenting). Because the plaintiffs have alleged that the conduct of Connolly was “intended to injure [McIntyre] in some way unjustifiable by any government interest,” the plaintiffs have unquestionably pleaded conscience-shocking conduct on the part of Connolly. c. Violation of a Fundamental Right I must next determine whether the plaintiffs have adequately alleged that the conscience-shocking conduct of Connolly violated a fundamental right of McIntyre. A key question in determining whether Connolly violated the substantive due process rights of McIntyre is whether the plaintiffs’ allegations support the inference that the murder of McIntyre at the hands of Bulger, Flemmi, or their associates, was sufficiently connected to the government to take the crimes out of the category of purely private violence. While “[t]he Due Process Clause is intended to prevent government officials ‘from abusing [their] power or employing it as an instrument of oppression,’ ” Cummings, 271 F.3d at 346 (quoting County of Sacramento, 523 U.S. at 846, 118 S.Ct. 1708 (alteration in original)), the “Clause is phrased in the negative. It says that a state shall not ‘deprive’ residents of life, liberty, or property, save with due process. It does not require the state to furnish residents with property they lack, or ensure that they do not suffer loss at private hands,” Archie v. City of Racine, 847 F.2d 1211, 1220 (7th Cir.1988). As discussed below, there are, however, limited circumstances under which the government may have a duty to protect individuals from the wrongful acts of third parties. Here, Connolly and the other agents contend that the murder of McIntyre was an act of private violence, and that the narrow exceptions to the general rule that government agents do not have a duty under the Constitution to protect citizens from the acts of private violence do not apply. In contrast, the plaintiffs argue both that the murder of McIntyre implicates these exceptions and that, moreover, the murder was not purely private conduct, but government action. For the reasons explained below, I hold that the plaintiffs have adequately alleged that the murder of McIntyre was government action. i. Murder of McIntyre as Private Violence There are two exceptions to the general rule that the guarantee of substantive due process does not require the government to protect citizens from acts of private violence: (1) when the government has restrained a citizen’s ability to care for himself, as in the case of incarcerated persons or persons in a foster care setting, see DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 198-200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); and (2) when the government, through its affirmative acts, renders an individual more vulnerable to third-party violence, see Soto, 103 F.3d at 1064. Not surprisingly, the parties on the present motions disagree sharply as to the scope of these duties and their applicability to the present case. (a) Governmental Restraint of Victim In DeShaney, the Supreme Court observed that, absent any claim that the state created the danger, a citizen does not have a constitutional right to be free from the violent acts of third parties, unless the state has restrained the citizen’s liberty. In that case, state officials had taken temporary custody of a small child, Joshua, after receiving reports that his father had physically abused him. After the father voluntarily committed to taking certain steps to improve the child’s welfare, the officials returned Joshua to his father’s custody. Although the officials later became aware that the father was not adhering to the promises he made prior to Joshua’s return, and that Joshua was showing signs of physical abuse, the state took no action until the father beat Joshua so severely that the child fell into a life-threatening coma and became profoundly retarded. Joshua and his mother brought a § 1983 action against the state Department of Social Services, certain of its employees, and the county, alleging that the defendants violated Joshua’s substantive due process rights “by failing to intervene to protect him against a risk of violence at his father’s hands of which they knew or should have known.” Id. at 193, 109 S.Ct. 998. The district court granted the defendants’ motion for summary judgment, and the court of appeals affirmed. Affirming the lower courts, the Supreme Court reiterated the principle that there is no general constitutional right to be free from private violence: [N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State’s power to act, not as a guarantee- of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.... Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. Id. at 195-196, 109 S.Ct. 998. The plaintiffs nonetheless argued that “even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate protective services, such a duty may arise out of certain ‘special relationships’ created or assumed by the State with respect to particular individuals.” Id. at 197, 109 S.Ct. 998. The plaintiffs maintained that “such ‘special relationship’ existed [in that case] because the State knew that Joshua faced a special danger of abuse at his father’s hands, and specifically proclaimed, ... its intention to protect him against that danger.” Id. The plaintiffs conceded that the state did not play a part in creating the danger Joshua faced. Id. The Court rejected the plaintiffs’ “special relationship” argument. Id. at 198, 109 S.Ct. 998. Acknowledging that in some instances “the Constitution imposes upon the State affirmative duties of care and. protection with respect to particular individuals,” id., the Court held that such circumstances were limited to where the state performed an “affirmative act of restraining the individual’s freedom to act on his own behalf-, through incarceration, institutionalization, or other , similar restraint of personal liberty,” id. at 200, 109 S.Ct. 998. In those situations, “it is the State’s affirmative act of restraining the individual’s freedom to act on his own behalf ... which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.” Id.; see also Davis v. Rennie, 264 F.3d 86, 98 (1st Cir.2001) (“Once the state restrains an individual’s liberty, rendering that individual unable to act for himself ... the state does acquire an affirmative duty to protect.” (quoting Shaw v. Strackhouse, 920 F.2d 1135, 1144 (3d Cir.1990)) (alteration in original)). In other words, the underlying relationship giving rise to a concomitant constitutional duty on the part of the government to protect an individual from private violence is one in which the government has restrained someone against his/ her will. First Circuit cases decided after DeShaney unequivocally demonstrate that this “governmental restraint of freedom” exception to the general rule that the Constitution does not protect against private violence is limited to situations where government officials have forcibly restrained an individual in a physical rather than in a figurative sense. In Souza v. Pina, 53 F.3d 423 (1st Cir.1995), for example, the First Circuit rejected the argument of a § 1983 claimant that prosecutors had allegedly driven the plaintiffs decedent to commit suicide. The court discerned no constitutional duty to protect the decedent because the prosecutors had not restrained him within the meaning of DeShaney. The plaintiff had maintained that, in light of the fact that the prosecutors knew or should have known that the decedent had posed a risk of suicide, their alleged misconduct limited the decedent’s freedom “as greatly as if he were locked in maximum security.” Id. at 426. In reversing the district court’s denial of the prosecutors’ motion to dismiss based on qualified immunity, the First Circuit explained that “the Supreme Court has made clear that the state has a duty to protect only when it affirmatively acts to restrain the ‘individual’s freedom to act on his own behalf— through incarceration, institutionalization, or other restraint of personal liberty.’ ” Id (quoting DeShaney, 489 U.S. at 200, 109 S.Ct. 998). Similarly, in Monahan v. Dorchester Counseling Center, Inc., 961 F.2d 987 (1st Cir.1992), the court affirmed the dismissal of § 1983 claim in a case where a voluntarily committed mental health patient alleged he was injured when he jumped out of a van driven by state employee. At the time, the plaintiff was being transported from a state mental health treatment center to a state-run group home. The court reasoned that the DeShaney governmental restraint exception did not apply because the state had not committed the plaintiff involuntarily and therefore had not taken an “affirmative act” of restraining the plaintiffs liberty. Id. at 991. Despite this case law, the plaintiffs argue that, because McIntyre was a government informant, he was “owed a constitutionally protected duty of care arising out of a recognized ‘special relationship.’ ” Pl.s’ Cons.Br. Opp. at 11. The plaintiffs label the “ ‘defendants’ reliance on the proposition “that this only occurs ‘through incarceration, institutionalization, or other similar restraint of personal liberty’ ” ’ ” as “misplaced and incomplete,” id. (quoting Def.s’ Cons.Mem. at 18), and maintain that “serving as a confidential informant for law enforcement significantly compromises one’s ability to protect oneself, quite in the same fashion as if one were in a prison setting,” id. The plaintiffs’ argument fails because, unlike an inmate or involuntarily institutionalized patient, the informant/government relationship is voluntary and does not involve physical restraint by government agents. The plaintiffs have not suggested that the government physically forced McIntyre to become an informant. To be sure, because McIntyre was suspected of criminal activity, his decision to cooperate might have been based on persuasive argument by the government that it was in his interest to assist the government’s investigation and prosecution of the criminal activities of others. It is also safe to say that confidential informants are generally more at risk than persons who are not informants. But neither the government’s leverage in recruiting criminal suspects to become informants nor the danger inherent in one’s acceptance of that role amounts to “incarcération, institutionalization, or other similar restraint of personal liberty.” DeShaney, 489 U.S. at 200, 109 S.Ct. 998. Whatever metaphorical shackles may be inherent in becoming an informant, or to whatever degree being an informant “significantly compromises one’s ability to protect oneself,” is simply insufficient to cloth the informant with substan-five due process rights to protection from the harm he might suffer as a consequence of being an informant. Like the patient in Monahan, who voluntarily committed himself to a mental institution, McIntyre chose to be an informant. His freedom to choose whether to cooperate with the government bears no resemblance to the situation of one who, by action of the government, is forced behind locked hospital or prison doors. (b) State-Created Danger Another exception to the general rule that there is not a constitutional right to be free from private violence is the so-called “state-created danger” theory. In DeShaney, the Court implicitly acknowledged that, where the government’s affirmative acts render a citizen more vulnerable to private., violence, the .citizen has a corresponding constitutional right to be protected from that violence: While the state may have been aware of the dangers Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to. them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual’s safety by having once offered him shelter. Under these circumstances, the State had no constitutional d