|||SUPREME COURT OF THE UNITED STATES
489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249, 57 U.S.L.W. 4218
|||February 22, 1989
|||DESHANEY, A MINOR, BY HIS GUARDIAN AD LITEM, ET AL.
WINNEBAGO COUNTY DEPARTMENT OF SOCIAL SERVICES ET AL.
|||CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
|||Donald J. Sullivan argued the cause for petitioners. With him on the briefs
was Curry First.
|||Mark J. Mingo argued the cause for respondents. With him on the brief
were Wayne M. Yankala and Joel I. Klein.
|||Deputy Solicitor General Ayer argued the cause for the United States as
amicus curiae urging affirmance. With him on the brief were Solicitor General
Fried, Assistant Attorney General Bolton, Roy T. Englert, Jr., Barbara L.
Herwig, and John S. Koppel.*
|||Rehnquist, C. J., delivered the opinion of the Court, in which White,
Stevens, O'Connor, Scalia, and Kennedy, JJ., joined. Brennan, J., filed
a Dissenting opinion, in which Marshall and Blackmun, JJ., joined, post,
p. 203. Blackmun, J., filed a Dissenting opinion, post, p. 212.
|||The opinion of the court was delivered by: Rehnquist
|||Petitioner is a child who was subjected to a series of beatings by his
father, with whom he lived. Respondents, a county department of social services
and several of its social workers, received complaints that petitioner was
being abused by his father and took various steps to protect him; they did
not, however, act to remove petitioner from his father's custody. Petitioner's
father finally beat him so severely that he suffered permanent brain damage
and was rendered profoundly retarded. Petitioner and his mother sued respondents
under 42 U. S. C. § 1983, alleging that respondents had deprived petitioner
of his liberty interest in bodily integrity, in violation of his rights
under the substantive component of the Fourteenth Amendment's Due Process
Clause, by failing to intervene to protect him against his father's violence.
The District Court granted summary judgment for respondents, and the Court
of Appeals affirmed.
|||Held: Respondents' failure to provide petitioner with adequate protection
against his father's violence did not violate his rights under the substantive
component of the Due Process Clause. Pp. 194-203.
|||(a) A State's failure to protect an individual against private violence
generally does not constitute a violation of the Due Process Clause, because
the Clause imposes no duty on the State to provide members of the general
public with adequate protective services. 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; while it forbids the State itself to deprive individuals
of life, liberty, and property without due process of law, its language
cannot fairly be read to impose an affirmative obligation on the State to
ensure that those interests do not come to harm through other means. Pp.
|||(b) There is no merit to petitioner's contention that the State's knowledge
of his danger and expressions of willingness to protect him against that
danger established a "special relationship" giving rise to an
affirmative constitutional duty to protect. While certain "special
relationships" created or assumed by the State with respect to particular
individuals may give rise to an affirmative duty, enforceable through the
Due Process Clause, to provide adequate protection,
see Estelle v. Gamble, 429 U.S. 97; Youngberg v. Romeo, 457 U.S. 307, the
affirmative duty to protect arises not from the State's knowledge of the
individual's predicament or from its expressions of intent to help him,
but from the limitations which it has imposed on his freedom to act on his
own behalf, through imprisonment, institutionalization, or other similar
restraint of personal liberty. No such duty existed here, for the harms
petitioner suffered occurred not while the State was holding him in its
custody, but while he was in the custody of his natural father, who was
in no sense a state actor. While the State may have been aware of the dangers
that he faced, it played no part in their creation, nor did it do anything
to render him more vulnerable to them. Under these circumstances, the Due
Process Clause did not impose upon the State an affirmative duty to provide
petitioner with adequate protection. Pp. 197-201.
|||(c) It may well be that by voluntarily undertaking to provide petitioner
with protection against a danger it played no part in creating, the State
acquired a duty under state tort law to provide him with adequate protection
against that danger. But the Due Process Clause does not transform every
tort committed by a state actor into a constitutional violation. Pp. 201-202.
|||CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
|||Petitioner is a boy who was beaten and permanently injured by his father,
with whom he lived. Respondents are social workers and other local officials
who received complaints that petitioner was being abused by his father and
had reason to believe that this was the case, but nonetheless did not act
to remove petitioner from his father's custody. Petitioner sued respondents
claiming that their failure to act deprived him of his liberty in violation
of the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. We hold that it did not.
|||The facts of this case are undeniably tragic. Petitioner Joshua DeShaney
was born in 1979. In 1980, a Wyoming court granted his parents a divorce
and awarded custody of Joshua to his father, Randy DeShaney. The father
shortly thereafter moved to Neenah, a city located in Winnebago County,
Wisconsin, taking the infant Joshua with him. There he entered into a second
marriage, which also ended in divorce.
|||The Winnebago County authorities first learned that Joshua DeShaney might
be a victim of child abuse in January 1982, when his father's second wife
complained to the police, at the time of their divorce, that he had previously
"hit the boy causing marks and a prime case for child abuse."
App. 152-153. The Winnebago County Department of Social Services (DSS) interviewed
the father, but he denied the accusations, and DSS did not pursue them further.
In January 1983, Joshua was admitted to a local hospital with multiple bruises
and abrasions. The examining physician suspected child abuse and notified
DSS, which immediately obtained an order from a Wisconsin juvenile court
placing Joshua in the temporary custody of the hospital. Three days later,
the county convened an ad hoc "Child Protection Team" -- consisting
of a pediatrician, a psychologist, a police detective, the county's lawyer,
several DSS caseworkers, and various hospital personnel -- to consider Joshua's
situation. At this meeting, the Team decided that there was insufficient
evidence of child abuse to retain Joshua in the custody of the court. The
Team did, however, decide to recommend several measures to protect Joshua,
including enrolling him in a preschool program, providing his father with
certain counseling services, and encouraging his father's girlfriend to
move out of the home. Randy DeShaney entered into a voluntary agreement
with DSS in which he promised to cooperate with them in accomplishing these
|||Based on the recommendation of the Child Protection Team, the juvenile
court dismissed the child protection case and returned Joshua to the custody
of his father. A month later, emergency room personnel called the DSS caseworker
handling Joshua's case to report that he had once again been treated for
suspicious injuries. The caseworker concluded that there was no basis for
action. For the next six months, the caseworker made monthly visits to the
DeShaney home, during which she observed a number of suspicious injuries
on Joshua's head; she also noticed that he had not been enrolled in school,
and that the girlfriend had not moved out. The caseworker dutifully recorded
these incidents in her files, along with her continuing suspicions that
someone in the DeShaney household was physically abusing Joshua, but she
did nothing more. In November 1983, the emergency room notified DSS that
Joshua had been treated once again for injuries that they believed to be
caused by child abuse. On the caseworker's next two visits to the DeShaney
home, she was told that Joshua was too ill to see her. Still DSS took no
|||In March 1984, Randy DeShaney beat 4-year-old Joshua so severely that
he fell into a life-threatening coma. Emergency brain surgery revealed a
series of hemorrhages caused by traumatic injuries to the head inflicted
over a long period of time. Joshua did not die, but he suffered brain damage
so severe that he is expected to spend the rest of his life confined to
an institution for the profoundly retarded. Randy DeShaney was subsequently
tried and convicted of child abuse.
|||Joshua and his mother brought this action under 42 U. S. C. § 1983 in
the United States District Court for the Eastern District of Wisconsin against
respondents Winnebago County, DSS, and various individual employees of DSS.
The complaint alleged that respondents had deprived Joshua of his liberty
without due process of law, in violation of his rights under the Fourteenth
Amendment, 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. The District
Court granted summary judgment for respondents.
|||The Court of Appeals for the Seventh Circuit affirmed, 812 F.2d 298 (1987),
holding that petitioners had not made out an actionable § 1983 claim for
two alternative reasons. First, the court held that the Due Process Clause
of the Fourteenth Amendment does not require a state or local governmental
entity to protect its citizens from "private violence, or other mishaps
not attributable to the conduct of its employees." Id., at 301. In
so holding, the court specifically rejected the position endorsed by a divided
panel of the Third Circuit in Estate of Bailey by Oare v. County of York,
768 F.2d 503, 510-511 (1985), and by dicta in Jensen v. Conrad, 747 F.2d
185, 190-194 (CA4 1984), cert. denied, 470 U.S. 1052 (1985), that once the
State learns that a particular child is in danger of abuse from third parties
and actually undertakes to protect him from that danger, a "special
relationship" arises between it and the child which imposes an affirmative
constitutional duty to provide adequate protection. 812 F.2d, at 303-304.
Second, the court held, in reliance on our decision in Martinez v. California,
444 U.S. 277, 285 (1980), that the causal connection between respondents'
conduct and Joshua's injuries was too attenuated to establish a deprivation
of constitutional rights actionable under § 1983. 812 F.2d, at 301-303.
The court therefore found it unnecessary to reach the question whether respondents'
conduct evinced the "state of mind" necessary to make out a due
process claim after Daniels v. Williams, 474 U.S. 327 (1986), and Davidson
v. Cannon, 474 U.S. 344 (1986). 812 F.2d, at 302.
|||Because of the inconsistent approaches taken by the lower courts in determining
when, if ever, the failure of a state or local governmental entity or its
agents to provide an individual with adequate protective services constitutes
a violation of the individual's due process rights, see Archie v. Racine,
847 F.2d 1211, 1220-1223, and n. 10 (CA7 1988) (en banc) (collecting cases),
cert. pending, No. 88-576, and the importance of the issue to the administration
of state and local governments, we granted certiorari. 485 U.S. 958 (1988).
We now affirm.
|||The Due Process Clause of the Fourteenth Amendment provides that "o
State shall . . . deprive any person of life, liberty, or property, without
due process of law." Petitioners contend that the State *fn1
deprived Joshua of his liberty interest in "free from . . . unjustified
intrusions on personal security," see Ingraham v. Wright, 430 U.S.
651, 673 (1977), by failing to provide him with adequate protection against
his father's violence. The claim is one invoking the substantive rather
than the procedural component of the Due Process Clause; petitioners do
not claim that the State denied Joshua protection without according him
appropriate procedural safeguards, see Morrissey v. Brewer, 408 U.S. 471,
481 (1972), but that it was categorically obligated to protect him in these
circumstances, see Youngberg v. Romeo, 457 U.S. 307, 309 (1982). *fn2
|||But nothing 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.
Nor does history support such an expansive reading of the constitutional
text. Like its counterpart in the Fifth Amendment, the Due Process Clause
of the Fourteenth Amendment was intended to prevent government "from
abusing power, or employing it as an instrument of oppression," Davidson
v. Cannon, supra, at 348; see also Daniels v. Williams, supra, at 331 ("'"to
secure the individual from the arbitrary exercise of the powers of government,"'"
and "to prevent governmental power from being 'used for purposes of
oppression'") (internal citations omitted); Parratt v. Taylor, 451
U.S. 527, 549 (1981) (Powell, J., Concurring in result) (to prevent the
"affirmative abuse of power"). Its purpose was to protect the
people from the State, not to ensure that the State protected them from
each other. The Framers were content to leave the extent of governmental
obligation in the latter area to the democratic political processes.
|||Consistent with these principles, our cases have recognized that the Due
Process Clauses generally confer no affirmative right to governmental aid,
even where such aid may be necessary to secure life, liberty, or property
interests of which the government itself may not deprive the individual.
See, e. g., Harris v. McRae, 448 U.S. 297, 317-318 (1980) (no obligation
to fund abortions or other medical services) (discussing Due Process Clause
of Fifth Amendment); Lindsey v. Normet, 405 U.S. 56, 74 (1972) (no obligation
to provide adequate housing) (discussing Due Process Clause of Fourteenth
Amendment); see also Youngberg v. Romeo, supra, at 317 ("As a general
matter, a State is under no constitutional duty to provide substantive services
for those within its border"). As we said in Harris v. McRae: "Although
the liberty protected by the Due Process Clause affords protection against
unwarranted government interference . . ., it does not confer an entitlement
to such [governmental aid] as may be necessary to realize all the advantages
of that freedom." 448 U.S., at 317-318 (emphasis added). If the Due
Process Clause does not require the State to provide its citizens with particular
protective services, it follows that the State cannot be held liable under
the Clause for injuries that could have been averted had it chosen to provide
As a general matter, then, we conclude that a State's failure to protect
an individual against private violence simply does not constitute a violation
of the Due Process Clause.
|||Petitioners contend, however, 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. Brief for Petitioners 13-18. Petitioners argue that such a
"special relationship" existed here because the State knew that
Joshua faced a special danger of abuse at his father's hands, and specifically
proclaimed, by word and by deed, its intention to protect him against that
danger. Id., at 18-20. Having actually undertaken to protect Joshua from
this danger -- which petitioners concede the State played no part in creating
-- the State acquired an affirmative "duty," enforceable through
the Due Process Clause, to do so in a reasonably competent fashion. Its
failure to discharge that duty, so the argument goes, was an abuse of governmental
power that so "shocks the conscience," Rochin v. California, 342
U.S. 165, 172 (1952), as to constitute a substantive due process violation.
Brief for Petitioners 20. *fn4
|||We reject this argument. It is true that in certain limited circumstances
the Constitution imposes upon the State affirmative duties of care and protection
with respect to particular individuals. In Estelle v. Gamble, 429 U.S. 97
(1976), we recognized that the Eighth Amendment's prohibition against cruel
and unusual punishment, made applicable to the States through the Fourteenth
Amendment's Due Process Clause, Robinson v. California, 370 U.S. 660 (1962),
requires the State to provide adequate medical care to incarcerated prisoners.
429 U.S., at 103-104. *fn5
We reasoned that because the prisoner is unable "'by reason of the
deprivation of his liberty care for himself,'" it is only "'just'"
that the State be required to care for him. Ibid., quoting Spicer v. Williamson,
191 N. C. 487, 490, 132 S. E. 291, 293 (1926).
|||In Youngberg v. Romeo, 457 U.S. 307 (1982), we extended this analysis
beyond the Eighth Amendment setting, *fn6
holding that the substantive component of the Fourteenth Amendment's Due
Process Clause requires the State to provide involuntarily committed mental
patients with such services as are necessary to ensure their "reasonable
safety" from themselves and others. Id., at 314-325; see id., at 315,
324 (dicta indicating that the State is also obligated to provide such individuals
with "adequate food, shelter, clothing, and medical care"). As
we explained: "If it is cruel and unusual punishment to hold convicted
criminals in unsafe conditions, it must be unconstitutional [under the Due
Process Clause] to confine the involuntarily committed -- who may not be
punished at all -- in unsafe conditions." Id., at 315-316; see also
Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983) (holding
that the Due Process Clause requires the responsible government or governmental
agency to provide medical care to suspects in police custody who have been
injured while being apprehended by the police).
|||But these cases afford petitioners no help. Taken together, they stand
only for the proposition that when the State takes a person into its custody
and holds him there against his will, the Constitution imposes upon it a
corresponding duty to assume some responsibility for his safety and general
well-being. See Youngberg v. Romeo, supra, at 317 ("When a person is
institutionalized -- and wholly dependent on the State[,] . . . a duty to
provide certain services and care does exist"). *fn7
The rationale for this principle is simple enough: when the State by the
affirmative exercise of its power so restrains an individual's liberty that
it renders him unable to care for himself, and at the same time fails to
provide for his basic human needs -- e. g., food, clothing, shelter, medical
care, and reasonable safety -- it transgresses the substantive limits on
state action set by the Eighth Amendment and the Due Process Clause. See
Estelle v. Gamble, supra, at 103-104; Youngberg v. Romeo, supra, at 315-316.
The affirmative duty to protect arises not from the State's knowledge of
the individual's predicament or from its expressions of intent to help him,
but from the limitation which it has imposed on his freedom to act on his
own behalf. See Estelle v. Gamble, supra, at 103 ("An inmate must rely
on prison authorities to treat his medical needs; if the authorities fail
to do so, those needs will not be met"). In the substantive due process
analysis, it is the State's affirmative act of restraining the individual's
freedom to act on his own behalf -- through incarceration, institutionalization,
or other similar restraint of personal liberty -- 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. *fn8
|||The Estelle-Youngberg analysis simply has no applicability in the present
case. Petitioners concede that the harms Joshua suffered occurred not while
he was in the State's custody, but while he was in the custody of his natural
father, who was in no sense a state actor. *fn9
While the State may have been aware of the dangers that 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
duty to protect Joshua.
|||It may well be that, by voluntarily undertaking to protect Joshua against
a danger it concededly played no part in creating, the State acquired a
duty under state tort law to provide him with adequate protection against
that danger. See Restatement (Second) of Torts § 323 (1965) (one who undertakes
to render services to another may in some circumstances be held liable for
doing so in a negligent fashion); see generally W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on the Law of Torts § 56 (5th
ed. 1984) (discussing "special relationships" which may give rise
to affirmative duties to act under the common law of tort). But the claim
here is based on the Due Process Clause of the Fourteenth Amendment, which,
as we have said many times, does not transform every tort committed by a
state actor into a constitutional violation. See Daniels v. Williams, 474
U.S., at 335-336; Parratt v. Taylor, 451 U.S., at 544; Martinez v. California,
444 U.S. 277, 285 (1980); Baker v. McCollan, 443 U.S. 137, 146 (1979); Paul
v. Davis, 424 U.S. 693, 701 (1976). A State may, through its courts and
legislatures, impose such affirmative duties of care and protection upon
its agents as it wishes. But not "all common-law duties owed by government
actors were . . . constitutionalized by the Fourteenth Amendment."
Daniels v. Williams, supra, at 335. Because, as explained above, the State
had no constitutional duty to protect Joshua against his father's violence,
its failure to do so -- though calamitous in hindsight -- simply does not
constitute a violation of the Due Process Clause. *fn10
|||Judges and lawyers, like other humans, are moved by natural sympathy in
a case like this to find a way for Joshua and his mother to receive adequate
compensation for the grievous harm inflicted upon them. But before yielding
to that impulse, it is well to remember once again that the harm was inflicted
not by the State of Wisconsin, but by Joshua's father. The most that can
be said of the state functionaries in this case is that they stood by and
did nothing when suspicious circumstances dictated a more active role for
them. In defense of them it must also be said that had they moved too soon
to take custody of the son away from the father, they would likely have
been met with charges of improperly intruding into the parent-child relationship,
charges based on the same Due Process Clause that forms the basis for the
present charge of failure to provide adequate protection.
|||The people of Wisconsin may well prefer a system of liability which would
place upon the State and its officials the responsibility for failure to
act in situations such as the present one. They may create such a system,
if they do not have it already, by changing the tort law of the State in
accordance with the regular lawmaking process. But they should not have
it thrust upon them by this Court's expansion of the Due Process Clause
of the Fourteenth Amendment.
|||JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join,
|||"The most that can be said of the state functionaries in this case,"
the Court today concludes, "is that they stood by and did nothing when
suspicious circumstances dictated a more active role for them." Ante
this page. Because I believe that this description of respondents' conduct
tells only part of the story and that, accordingly, the Constitution itself
"dictated a more active role" for respondents in the circumstances
presented here, I cannot agree that respondents had no constitutional duty
to help Joshua DeShaney.
|||It may well be, as the Court decides, ante, at 194-197, that the Due Process
Clause as construed by our prior cases creates no general right to basic
governmental services. That, however, is not the question presented here;
indeed, that question was not raised in the complaint, urged on appeal,
presented in the petition for certiorari, or addressed in the briefs on
the merits. No one, in short, has asked the Court to proclaim that, as a
general matter, the Constitution safeguards positive as well as negative
|||This is more than a quibble over dicta; it is a point about perspective,
having substantive ramifications. In a constitutional setting that distinguishes
sharply between action and inaction, one's characterization of the misconduct
alleged under § 1983 may effectively decide the case. Thus, by leading off
with a Discussion (and rejection) of the idea that the Constitution imposes
on the States an affirmative duty to take basic care of their citizens,
the Court foreshadows -- perhaps even preordains -- its Conclusion that
no duty existed even on the specific facts before us. This initial Discussion
establishes the baseline from which the Court assesses the DeShaneys' claim
that, when a State has -- "by word and by deed," ante, at 197
-- announced an intention to protect a certain class of citizens and has
before it facts that would trigger that protection under the applicable
state law, the Constitution imposes upon the State an affirmative duty of
|||The Court's baseline is the absence of positive rights in the Constitution
and a concomitant suspicion of any claim that seems to depend on such rights.
From this perspective, the DeShaneys' claim is first and foremost about
inaction (the failure, here, of respondents to take steps to protect Joshua),
and only tangentially about action (the establishment of a state program
specifically designed to help children like Joshua). And from this perspective,
holding these Wisconsin officials liable -- where the only difference between
this case and one involving a general claim to protective services is Wisconsin's
establishment and operation of a program to protect children -- would seem
to punish an effort that we should seek to promote.
|||I would begin from the opposite direction. I would focus first on the
action that Wisconsin has taken with respect to Joshua and children like
him, rather than on the actions that the State failed to take. Such a method
is not new to this Court. Both Estelle v. Gamble, 429 U.S. 97 (1976), and
Youngberg v. Romeo, 457 U.S. 307 (1982), began by emphasizing that the States
had confined J. W. Gamble to prison and Nicholas Romeo to a psychiatric
hospital. This initial action rendered these people helpless to help themselves
or to seek help from persons unconnected to the government. See Estelle,
supra, at 104 ("t is but just that the public be required to care for
the prisoner, who cannot by reason of the deprivation of his liberty, care
for himself"); Youngberg, supra, at 317 ("When a person is institutionalized
-- and wholly dependent on the State -- it is conceded by petitioners that
a duty to provide certain services and care does exist"). Cases from
the lower courts also recognize that a State's actions can be decisive in
assessing the constitutional significance of subsequent inaction. For these
purposes, moreover, actual physical restraint is not the only state action
that has been considered relevant. See, e. g., White v. Rochford, 592 F.2d
381 (CA7 1979) (police officers violated due process when, after arresting
the guardian of three young children, they abandoned the children on a busy
stretch of highway at night).
|||Because of the Court's initial fixation on the general principle that
the Constitution does not establish positive rights, it is unable to appreciate
our recognition in Estelle and Youngberg that this principle does not hold
true in all circumstances. Thus, in the Court's view, Youngberg can be explained
(and dismissed) in the following way: "In the substantive due process
analysis, it is the State's affirmative act of restraining the individual's
freedom to act on his own behalf -- through incarceration, institutionalization,
or other similar restraint of personal liberty -- 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." Ante, at 200. This restatement of Youngberg 's holding
should come as a surprise when one recalls our explicit observation in that
case that Romeo did not challenge his commitment to the hospital, but instead
"argue that he ha a constitutionally protected liberty interest in
safety, freedom of movement, and training within the institution; and that
petitioners infringed these rights by failing to provide constitutionally
required conditions of confinement." 457 U.S., at 315 (emphasis added).
I do not mean to suggest that "the State's affirmative act of restraining
the individual's freedom to act on his own behalf," ante, at 200, was
irrelevant in Youngberg; rather, I emphasize that this conduct would have
led to no injury, and consequently no cause of action under § 1983, unless
the State then had failed to take steps to protect Romeo from himself and
from others. In addition, the Court's exclusive attention to state-imposed
restraints of "the individual's freedom to act on his own behalf,"
ante, at 200, suggests that it was the State that rendered Romeo unable
to care for himself, whereas in fact -- with an I. Q. of between 8 and 10,
and the mental capacity of an 18-month-old child, 457 U.S., at 309 -- he
had been quite incapable of taking care of himself long before the State
stepped into his life. Thus, the fact of hospitalization was critical in
Youngberg not because it rendered Romeo helpless to help himself, but because
it separated him from other sources of aid that, we held, the State was
obligated to replace. Unlike the Court, therefore, I am unable to see in
Youngberg a neat and decisive divide between action and inaction.
|||Moreover, to the Court, the only fact that seems to count as an "affirmative
act of restraining the individual's freedom to act on his own behalf"
is direct physical control. Ante, at 200 (listing only "incarceration,
institutionalization, other similar restraint of personal liberty"
in describing relevant "affirmative acts"). I would not, however,
give Youngberg and Estelle such a stingy scope. I would recognize, as the
Court apparently cannot, that "the State's knowledge of individual's
predicament its expressions of intent to help him" can amount to a
"limitation . . . on his freedom to act on his own behalf" or
to obtain help from others. Ante, at 200. Thus, I would read Youngberg and
Estelle to stand for the much more generous proposition that, if a State
cuts off private sources of aid and then refuses aid itself, it cannot wash
its hands of the harm that results from its inaction.
|||Youngberg and Estelle are not alone in sounding this theme. In striking
down a filing fee as applied to divorce cases brought by indigents, see
Boddie v. Connecticut, 401 U.S. 371 (1971), and in deciding that a local
government could not entirely foreclose the opportunity to speak in a public
forum, see, e. g., Schneider v. State, 308 U.S. 147 (1939); Hague v. Committee
for Industrial Organization, 307 U.S. 496 (1939); United States v. Grace,
461 U.S. 171 (1983), we have acknowledged that a State's actions -- such
as the monopolization of a particular path of relief -- may impose upon
the State certain positive duties. Similarly, Shelley v. Kraemer, 334 U.S.
1 (1948), and Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961),
suggest that a State may be found complicit in an injury even if it did
not create the situation that caused the harm.
|||Arising as they do from constitutional contexts different from the one
involved here, cases like Boddie and Burton are instructive rather than
decisive in the case before us. But they set a tone equally well established
in precedent as, and contradictory to, the one the Court sets by situating
the DeShaneys' complaint within the class of cases epitomized by the Court's
decision in Harris v. McRae, 448 U.S. 297 (1980). The cases that I have
cited tell us that Goldberg v. Kelly, 397 U.S. 254 (1970) (recognizing entitlement
to welfare under state law), can stand side by side with Dandridge v. Williams,
397 U.S. 471, 484 (1970) (implicitly rejecting idea that welfare is a fundamental
right), and that Goss v. Lopez, 419 U.S. 565, 573 (1975) (entitlement to
public education under state law), is perfectly consistent with San Antonio
Independent School Dist. v. Rodriguez, 411 U.S. 1, 29-39 (1973) (no fundamental
right to education). To put the point more directly, these cases signal
that a State's prior actions may be decisive in analyzing the constitutional
significance of its inaction. I thus would locate the DeShaneys' claims
within the framework of cases like Youngberg and Estelle, and more generally,
Boddie and Schneider , by considering the actions that Wisconsin took with
respect to Joshua.
|||Wisconsin has established a child-welfare system specifically designed
to help children like Joshua. Wisconsin law places upon the local departments
of social services such as respondent (DSS or Department) a duty to investigate
reported instances of child abuse. See Wis. Stat. § 48.981(3) (1987-1988).
While other governmental bodies and private persons are largely responsible
for the reporting of possible cases of child abuse, see § 48.981(2), Wisconsin
law channels all such reports to the local departments of social services
for evaluation and, if necessary, further action. § 48.981(3). Even when
it is the sheriff's office or police department that receives a report of
suspected child abuse, that report is referred to local social services
departments for action, see § 48.981(3)(a); the only exception to this occurs
when the reporter fears for the child's immediate safety. § 48.981(3)(b).
In this way, Wisconsin law invites -- indeed, directs -- citizens and other
governmental entities to depend on local departments of social services
such as respondent to protect children from abuse.
|||The specific facts before us bear out this view of Wisconsin's system
of protecting children. Each time someone voiced a suspicion that Joshua
was being abused, that information was relayed to the Department for investigation
and possible action. When Randy DeShaney's second wife told the police that
he had "'hit the boy causing marks and a prime case for child abuse,'"
the police referred her complaint to DSS. Ante, at 192. When, on three separate
occasions, emergency room personnel noticed suspicious injuries on Joshua's
body, they went to DSS with this information. Ante, at 192-193. When neighbors
informed the police that they had seen or heard Joshua's father or his father's
lover beating or otherwise abusing Joshua, the police brought these reports
to the attention of DSS. App. 144-145. And when respondent Kemmeter, through
these reports and through her own observations in the course of nearly 20
visits to the DeShaney home, id., at 104, compiled growing evidence that
Joshua was being abused, that information stayed within the Department --
chronicled by the social worker in detail that seems almost eerie in light
of her failure to act upon it. (As to the extent of the social worker's
involvement in, and knowledge of, Joshua's predicament, her reaction to
the news of Joshua's last and most devastating injuries is illuminating:
"'I just knew the phone would ring some day and Joshua would be dead.'"
812 F.2d 298, 300 (CA7 1987).)
|||Even more telling than these examples is the Department's control over
the decision whether to take steps to protect a particular child from suspected
abuse. While many different people contributed information and advice to
this decision, it was up to the people at DSS to make the ultimate decision
(subject to the approval of the local government's corporation counsel)
whether to disturb the family's current arrangements. App. 41, 58. When
Joshua first appeared at a local hospital with injuries signaling physical
abuse, for example, it was DSS that made the decision to take him into temporary
custody for the purpose of studying his situation -- and it was DSS, acting
in conjunction with the corporation counsel, that returned him to his father.
Ante, at 192. Unfortunately for Joshua DeShaney, the buck effectively stopped
with the Department.
|||In these circumstances, a private citizen, or even a person working in
a government agency other than DSS, would doubtless feel that her job was
done as soon as she had reported her suspicions of child abuse to DSS. Through
its child-welfare program, in other words, the State of Wisconsin has relieved
ordinary citizens and governmental bodies other than the Department of any
sense of obligation to do anything more than report their suspicions of
child abuse to DSS. If DSS ignores or dismisses these suspicions, no one
will step in to fill the gap. Wisconsin's child-protection program thus
effectively confined Joshua DeShaney within the walls of Randy DeShaney's
violent home until such time as DSS took action to remove him. Conceivably,
then, children like Joshua are made worse off by the existence of this program
when the persons and entities charged with carrying it out fail to do their
|||It simply belies reality, therefore, to contend that the State "stood
by and did nothing" with respect to Joshua. Ante, at 203. Through its
child-protection program, the State actively intervened in Joshua's life
and, by virtue of this intervention, acquired ever more certain knowledge
that Joshua was in grave danger. These circumstances, in my view, plant
this case solidly within the tradition of cases like Youngberg and Estelle.
|||It will be meager comfort to Joshua and his mother to know that, if the
State had "selectively den its protective services" to them because
they were "disfavored minorities," ante, at 197, n. 3, their §
1983 suit might have stood on sturdier ground. Because of the posture of
this case, we do not know why respondents did not take steps to protect
Joshua; the Court, however, tells us that their reason is irrelevant so
long as their inaction was not the product of invidious discrimination.
Presumably, then, if respondents decided not to help Joshua because his
name began with a "J," or because he was born in the spring, or
because they did not care enough about him even to formulate an intent to
discriminate against him based on an arbitrary reason, respondents would
not be liable to the DeShaneys because they were not the ones who dealt
the blows that destroyed Joshua's life.
|||I do not suggest that such irrationality was at work in this case; I emphasize
only that we do not know whether or not it was. I would allow Joshua and
his mother the opportunity to show that respondents' failure to help him
arose, not out of the sound exercise of professional judgment that we recognized
in Youngberg as sufficient to preclude liability, see 457 U.S., at 322-323,
but from the kind of arbitrariness that we have in the past condemned. See,
e. g., Daniels v. Williams, 474 U.S. 327, 331 (1986) (purpose of Due Process
Clause was "to secure the individual from the arbitrary exercise of
the powers of government" (citations omitted)); West Coast Hotel Co.
v. Parrish, 300 U.S. 379, 399 (1937) (to sustain state action, the Court
need only decide that it is not "arbitrary or capricious"); Euclid
v. Ambler Realty Co., 272 U.S. 365, 389 (1926) (state action invalid where
it "passes the bounds of reason and assumes the character of a merely
arbitrary fiat," quoting Purity Extract & Tonic Co. v. Lynch, 226
U.S. 192, 204 (1912)).
|||Youngberg 's deference to a decisionmaker's professional judgment ensures
that once a caseworker has decided, on the basis of her professional training
and experience, that one course of protection is preferable for a given
child, or even that no special protection is required, she will not be found
liable for the harm that follows. (In this way, Youngberg 's vision of substantive
due process serves a purpose similar to that served by adherence to procedural
norms, namely, requiring that a state actor stop and think before she acts
in a way that may lead to a loss of liberty.) Moreover, that the Due Process
Clause is not violated by merely negligent conduct, see Daniels, supra,
and Davidson v. Cannon, 474 U.S. 344 (1986), means that a social worker
who simply makes a mistake of judgment under what are admittedly complex
and difficult conditions will not find herself liable in damages under §
|||As the Court today reminds us, "the Due Process Clause of the Fourteenth
Amendment was intended to prevent government 'from abusing power, or employing
it as an instrument of oppression.'" Ante, at 196, quoting Davidson,
supra, U.S., at 348. My disagreement with the Court arises from its failure
to see that inaction can be every bit as abusive of power as action, that
oppression can result when a State undertakes a vital duty and then ignores
it. Today's opinion construes the Due Process Clause to permit a State to
displace private sources of protection and then, at the critical moment,
to shrug its shoulders and turn away from the harm that it has promised
to try to prevent. Because I cannot agree that our Constitution is indifferent
to such indifference, I respectfully Dissent.
|||JUSTICE BLACKMUN, Dissenting.
|||Today, the Court purports to be the dispassionate oracle of the law, unmoved
by "natural sympathy." Ante, at 202. But, in this pretense, the
Court itself retreats into a sterile formalism which prevents it from recognizing
either the facts of the case before it or the legal norms that should apply
to those facts. As Justice Brennan demonstrates, the facts here involve
not mere passivity, but active state intervention in the life of Joshua
DeShaney -- intervention that triggered a fundamental duty to aid the boy
once the State learned of the severe danger to which he was exposed.
|||The Court fails to recognize this duty because it attempts to draw a sharp
and rigid line between action and inaction. But such formalistic reasoning
has no place in the interpretation of the broad and stirring Clauses of
the Fourteenth Amendment. Indeed, I submit that these Clauses were designed,
at least in part, to undo the formalistic legal reasoning that infected
antebellum jurisprudence, which the late Professor Robert Cover analyzed
so effectively in his significant work entitled Justice Accused (1975).
|||Like the antebellum Judges who denied relief to fugitive slaves, see id.,
at 119-121, the Court today claims that its decision, however harsh, is
compelled by existing legal doctrine. On the contrary, the question presented
by this case is an open one, and our Fourteenth Amendment precedents may
be read more broadly or narrowly depending upon how one chooses to read
them. Faced with the choice, I would adopt a "sympathetic" reading,
one which comports with dictates of fundamental Justice and recognizes that
compassion need not be exiled from the province of judging. Cf. A. Stone,
Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if
we go forward, but doing nothing can be the worst mistake. What is required
of us is moral ambition. Until our composite sketch becomes a true portrait
of humanity we must live with our uncertainty; we will grope, we will struggle,
and our compassion may be our only guide and comfort").
|||Poor Joshua! Victim of repeated attacks by an irresponsible, bullying,
cowardly, and intemperate father, and abandoned by respondents who placed
him in a dangerous predicament and who knew or learned what was going on,
and yet did essentially nothing except, as the Court revealingly observes,
ante, at 193, "dutifully recorded these incidents in files." It
is a sad commentary upon American life, and constitutional principles --
so full of late of patriotic fervor and proud proclamations about "liberty
and Justice for all" -- that this child, Joshua DeShaney, now is assigned
to live out the remainder of his life profoundly retarded. Joshua and his
mother, as petitioners here, deserve -- but now are denied by this Court
-- the opportunity to have the facts of their case considered in the light
of the constitutional protection that 42 U. S. C. § 1983 is meant to provide.
|||* Briefs of amici curiae urging reversal were filed for the American Civil
Liberties Union Children's Rights Project et al. by Christopher A. Hansen,
Marcia Robinson Lowry, John A. Powell, Steven R. Shapiro, and Helen Hershkoff;
and for the Massachusetts Committee for Children and Youth by Laura L. Carroll.
|||Briefs urging affirmance were filed for the State of New York et al. by
Robert Abrams, Attorney General of New York, O. Peter Sherwood, Solicitor
General, Peter H. Schiff, Deputy Solicitor General, and Michael S. Buskus,
Assistant Attorney General, Joseph I. Lieberman, Attorney General of Connecticut,
J. Joseph Curran, Jr., Attorney General of Maryland, Dave Frohnmayer, Attorney
General of Oregon, LeRoy S. Zimmerman, Attorney General of Pennsylvania,
Donald J. Hanaway, Attorney General of Wisconsin, and Charles Hoornstra,
Assistant Attorney General; and for the National Association of Counties
et al. by Benna Ruth Solomon and Douglas A. Poe.
|||Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon filed
a brief for the National School Boards Association as amicus curiae.
As used here, the term "State" refers generically to state and
local governmental entities and their agents.
Petitioners also argue that the Wisconsin child protection statutes gave
Joshua an "entitlement" to receive protective services in accordance
with the terms of the statute, an entitlement which would enjoy due process
protection against state deprivation under our decision in Board of Regents
of State Colleges v. Roth, 408 U.S. 564 (1972). Brief for Petitioners 24-29.
But this argument is made for the first time in petitioners' brief to this
Court: it was not pleaded in the complaint, argued to the Court of Appeals
as a ground for reversing the District Court, or raised in the petition
for certiorari. We therefore decline to consider it here. See Youngberg
v. Romeo, 457 U.S., at 316, n. 19; Dothard v. Rawlinson, 433 U.S. 321, 323,
n. 1 (1977); Duignan v. United States, 274 U.S. 195, 200 (1927); Old Jordan
Mining & Milling Co. v. Societe Anonyme des Mines, 164 U.S. 261, 264-265
The State may not, of course, selectively deny its protective services to
certain disfavored minorities without violating the Equal Protection Clause.
See Yick Wo v. Hopkins, 118 U.S. 356 (1886). But no such argument has been
The genesis of this notion appears to lie in a statement in our opinion
in Martinez v. California, 444 U.S. 277 (1980). In that case, we were asked
to decide, inter alia, whether state officials could be held liable under
the Due Process Clause of the Fourteenth Amendment for the death of a private
citizen at the hands of a parolee. Rather than squarely confronting the
question presented here -- whether the Due Process Clause imposed upon the
State an affirmative duty to protect -- we affirmed the dismissal of the
claim on the narrower ground that the causal connection between the state
officials' decision to release the parolee from prison and the murder was
too attenuated to establish a "deprivation" of constitutional
rights within the meaning of § 1983. Id., at 284-285. But we went on to
|||"he parole board was not aware that appellants' decedent, as distinguished
from the public at large, faced any special danger. We need not and do not
decide that a parole officer could never be deemed to 'deprive' someone
of life by action taken in connection with the release of a prisoner on
parole. But we do hold that at least under the particular circumstances
of this parole decision, appellants' decedent's death is too remote a consequence
of the parole officers' action to hold them responsible under the federal
civil rights law." Id., at 285 (footnote omitted).
|||Several of the Courts of Appeals have read this language as implying that
once the State learns that a third party poses a special danger to an identified
victim, and indicates its willingness to protect the victim against that
danger, a "special relationship" arises between State and victim,
giving rise to an affirmative duty, enforceable through the Due Process
Clause, to render adequate protection. See Estate of Bailey by Oare v. County
of York, 768 F.2d 503, 510-511 (CA3 1985); Jensen v. Conrad, 747 F.2d 185,
190-194, and n. 11 (CA4 1984) (dicta), cert. denied, 470 U.S. 1052 (1985));
Balistreri v. Pacifica Police Dept., 855 F.2d 1421, 1425-1426 (CA9 1988).
But see, in addition to the opinion of the Seventh Circuit below, Estate
of Gilmore v. Buckley, 787 F.2d 714, 720-723 (CA1), cert. denied, 479 U.S.
882 (1986); Harpole v. Arkansas Dept. of Human Services, 820 F.2d 923, 926-927
(CA8 1987); Wideman v. Shallowford Community Hospital Inc., 826 F.2d 1030,
1034-1037 (CA11 1987).
To make out an Eighth Amendment claim based on the failure to provide adequate
medical care, a prisoner must show that the state defendants exhibited "deliberate
indifference" to his "serious" medical needs; the mere negligent
or inadvertent failure to provide adequate care is not enough. Estelle v.
Gamble, 429 U.S., at 105-106. In Whitley v. Albers, 475 U.S. 312 (1986),
we suggested that a similar state of mind is required to make out a substantive
due process claim in the prison setting. Id., at 326-327.
The Eighth Amendment applies "only after the State has complied with
the constitutional guarantees traditionally associated with criminal prosecutions.
. . . he State does not acquire the power to punish with which the Eighth
Amendment is concerned until after it has secured a formal adjudication
of guilt in accordance with due process of law." Ingraham v. Wright,
430 U.S. 651, 671-672, n. 40 (1977); see also Revere v. Massachusetts General
Hospital, 463 U.S. 239, 244 (1983); Bell v. Wolfish, 441 U.S. 520, 535,
n. 16 (1979).
Even in this situation, we have recognized that the State "has considerable
discretion in determining the nature and scope of its responsibilities."
Youngberg v. Romeo, 457 U.S., at 317.
Of course, the protections of the Due Process Clause, both substantive and
procedural, may be triggered when the State, by the affirmative acts of
its agents, subjects an involuntarily confined individual to deprivations
of liberty which are not among those generally authorized by his confinement.
See, e. g., Whitley v. Albers, supra, at 326-327 (shooting inmate); Youngberg
v. Romeo, supra, at 316 (shackling involuntarily committed mental patient);
Hughes v. Rowe, 449 U.S. 5, 11 (1980) (removing inmate from general prison
population and confining him to administrative segregation); Vitek v. Jones,
445 U.S. 480, 491-494 (1980) (transferring inmate to mental health facility).
Complaint para. 16, App. 6 ("At relevant times to and until March 8,
1984, [the date of the final beating,] Joshua DeShaney was in the custody
and control of Defendant Randy DeShaney"). Had the State by the affirmative
exercise of its power removed Joshua from free society and placed him in
a foster home operated by its agents, we might have a situation sufficiently
analogous to incarceration or institutionalization to give rise to an affirmative
duty to protect. Indeed, several Courts of Appeals have held, by analogy
to Estelle and Youngberg, that the State may be held liable under the Due
Process Clause for failing to protect children in foster homes from mistreatment
at the hands of their foster parents. See Doe v. New York City Dept. of
Social Services, 649 F.2d 134, 141-142 (CA2 1981), after remand, 709 F.2d
782, cert. denied sub nom. Catholic Home Bureau v. Doe, 464 U.S. 864 (1983);
Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 794-797 (CA11 1987) (en
banc), cert. pending Ledbetter v. Taylor, No. 87-521. We express no view
on the validity of this analogy, however, as it is not before us in the
Because we conclude that the Due Process Clause did not require the State
to protect Joshua from his father, we need not address respondents' alternative
argument that the individual state actors lacked the requisite "state
of mind" to make out a due process violation. See Daniels v. Williams,
474 U.S., at 334, n. 3. Similarly, we have no occasion to consider whether
the individual respondents might be entitled to a qualified immunity defense,
see Anderson v. Creighton, 483 U.S. 635 (1987), or whether the allegations
in the complaint are sufficient to support a § 1983 claim against the county
and DSS under Monell v. New York City Dept. of Social Services, 436 U.S.
658 (1978), and its progeny.
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