DeShaney v. Winnebago County Dept. of Soc. Serv., 489 U.S. 189 (1989)
discusses the state’s (or municipality's) liability toward individuals for failure to
perform a service. In this case, the service was the protection of a boy whose
father was known to authorities as abusive and violent. After many fruitless
requests by the boy’s mother for help, the father beat the boy so severely that
the child suffered permanent brain damage. The mother sued under 42 U.S.C.
§ 1983, alleging the state’s violation of the boy’s liberty interest in bodily
integrity by its failure to intervene. The Court ruled that the state had no
constitutional duty to intervene and protect the boy, despite knowledge of the
situation. Thus, there could be no § 1983 liability.
DeShaney is significant because it holds that a state has no affirmative,
constitutional duty to protect its citizens. There is no guaranteed minimal level
of safety and security—Fourteenth Amendment Due Process protects life,
liberty, and property from the state, not from third parties. Of course, the state
could open itself to liability through tort law for such situations, but there is no
§ 1983 action available.
Importantly, the DeShaney analysis applies to police protection as well as child
services. The rule is that, absent a special duty (no special duty existed in
DeShaney) a municipality will not be liable for the inaction of police in
preventing crime. A special duty to protect an individual may arise from a
statute that identifies certain groups of individuals who are owed protection, or
from the particular facts of the case. As
DeShaney suggests, it is relatively
uncommon that a court will find a special duty.
State actors can be liable when the government actually creates the danger
which befalls an individual. As the Seventh Circuit has explained, "liability
exists when the state affirmatively places a particular individual in a position of
danger the individual would not have otherwise faced." Monfils v. Taylor, 165
F.3d 511 (7th Cir. 1998). An example of this cause of action would be when a
police officer arrests an intoxicated person at night and drives him against his
will to the town limits, and later the person is hit by a while walking home
along an unlit highway. In that example, the danger to the individual of having
to walk along the unlit highway did not exist until the officer placed the
individual in that position, and can be said to be "state created."
A recent U.S. Supreme Court decision explores an issue left unanswered in
Deshaney: Whether a city is liable in a § 1983 action for not enforcing a
restraining order that, by its own terms, had to be enforced by any reasonable
means. Town of Castle Rock v. Gonzalez, 125 S.Ct. 2796 (2005). Respondent
had a restraining order issued against her estranged husband. The restraining
order, as per Colorado statute, mandated that law enforcement:
"USE EVERY REASONABLE MEANS TO ENFORCE THIS RESTRAINING
ORDER. YOU SHALL ARREST, OR, IF AN ARREST WOULD BE
IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A WARRANT FOR
THE ARREST OF THE RESTRAINED PERSON WHEN YOU HAVE
INFORMATION AMOUNTING TO PROBABLE CAUSE THAT THE
RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED TO VIOLATE ANY
PROVISION OF THIS ORDER" (caps in original)
When the respondent's three children were, with no prior notice, picked up by
the husband in violation of the restraining order, she notified city police. The
police initially told her to wait until 10 p.m. After 10 p.m., police told her to
wait until midnight. At 3:20 a.m. the police still declined to get involved with
the situation, but the husband appeared at the police station with a gun and
opened fire. He was killed in the resulting fray, but the bodies of the children
were found in his truck.
This situation differed from Deshaney in that respondent alleged a Fourteenth
Amendment Due Process violation of property based on the town officials’
failure to enforce the explicitly worded restraining order (the individual officers
had already been released from the case by reason of qualified immunity). Did
Colorado grant the plaintiff a protected property interest in police enforcement
of the restraining order? The Court held that the city was not liable under §
1983 because an "indirect and incidental result of the government's
enforcement action does not amount to a deprivation of any interest in life,
liberty, or property, for due process purposes."
Id. at 11. The Court continued:
"A state-law created benefit that a third party may receive from having
someone else arrested for a crime generally does not trigger protections under
the Due Process Clause, neither in its procedural nor in its substantive
manifestations." Id. at 12.
Castle Rock and DeShaney illustrate the reluctance of the judiciary to impose
certain affirmative obligations upon local governments. The Court in
Rock alluded to a "well established tradition of police discretion that has long
coexisted with apparently mandatory arrest statutes."
Id. at 1. The Court
narrowly interprets statutes that seemingly limit or remove police discretion,
preferring to err on the side of maintaining the discretion at the expense of the
plaintiff's claim. The Court went on to observe that even if the statute had
conferred an entitlement upon respondent, this entitlement would not
necessarily have constituted a property right for constitutional due process
purposes because there was no way to assign a monetary value to it and an
entitlement of this sort was not is not traditionally considered property.