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:

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 Castle 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. Id.