DeShaney in the Circuits (I): Affirmative Duties and Danger-Creation
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Introduction: The DeShaney case
In DeShaney v. Winnebago County, 489 U.S. 189 (1989), a tragic case involving an attempt under section 1983 and substantive due process to hold social service officials personally liable in damages for their failure to prevent a father from physically abusing his infant son, the Supreme Court ruled that the Due Process Clause does not impose affirmative duties on governments and their officials to prevent private harm. Put another way, the Constitution is a “charter of negative liberties.” This decision gave rise to dissenting Justice Blackmun‘s famous lament about “Poor Joshua.”
However, the Court in DeShaney did go on to suggest that there were two ways in which this no-duty rule could be end-run. The first was where the government or its officials had a special relationship with the injured person, such that the injured person was disabled by government from protecting himself or herself. The second was where the government or its officials created the danger to the injured person.
These exceptions, though, are quite difficult for plaintiffs to satisfy, as the following three circuit court decisions illustrate. In addition, qualified immunity often protects a individual defendant from damages liability regardless of the possible existence of an affirmative duty.
Kovacic v. Villarreal, 628 F.3d 209 (5th Cir. 2010)
Police officers handcuffed a very intoxicated man at 1:33 a.m. after being called by employees of a bar, placed him in a squad car, told friends and relatives of the man that they would take him to his hotel but, instead, at 2:08 a.m., released him at his insistence at a gas station parking lot five or six miles from the hotel. About a half hour later the man was struck by a hit-and-run driver while walking to the hotel and subsequently died. Thereafter, the plaintiffs, on behalf of the decedent, filed a § 1983 substantive due process damages action against the officers. Reversing the district court’s denial to the defendants of summary judgment based on qualified immunity, the Fifth Circuit avoided deciding whether the decedent and the defendants had a special relationship, or had created the decedent’s danger, such that the defendants may have violated the decedent’s substantive due process rights. Instead, it held that in August 2007 the claimed right was not clearly established and that the defendants were therefore protected by qualified immunity. There was no case law on point at the time indicating that a special relationship could be created when a person was released from police custody. In addition, the Fifth Circuit, unlike other circuits, had not adopted the state-created danger theory in DeShaney cases.
Estate of Smithers ex rel. Norris v. City of Flint, 602 F.3d 758 (6th Cir. 2010)
The defendant officers took an intoxicated woman from her boyfriend’s home and into custody after an argument, ticketed her for trespassing rather than for domestic violence, and released her to her mother shortly thereafter. She returned to her boyfriend’s home and shot and killed him and injured two others who were also there previously. If she had been ticketed for domestic violence, she would have been held for 20 hours, thus preventing the shootings. The plaintiffs thus argued that, in violation of substantive due process, the defendants created a danger to them when they ticketed the woman for trespassing and released her. Disagreeing, the Sixth Circuit affirmed the district court’s grant of summary judgment to the defendants. According to the court, the defendants’ decisions did not constitute the affirmative act necessary for triggering the state-created danger exception to DeShaney. For one thing, their discretionary decision to arrest and charge her with trespassing protected her eventual victims, if only for a while. For another, their decision to release her did not create or increase the danger to the plaintiffs. “The officers did not require or encourage plaintiffs to remain in the unlocked house or suggest that [the woman] would be held for 20 hours so as to imply that plaintiffs would be safe.”
Dodd v. Jones, 623 F.3d 563 (8th Cir. 2010)
Here, the plaintiff sued law enforcement officers who, after finding him lying injured on a roadway after an apparent alcohol-related accident of his own, allegedly violated substantive due process by failing to protect him from an intoxicated driver who thereafter struck him. Affirming the district court which had granted the defendants’ motion for summary judgment, the Eighth Circuit first rejected the plaintiff’s contention that the defendants took him into custody and held him against his will, thus triggering an affirmative duty to protect. The plaintiff was incapacitated when the defendants encountered him, and the plaintiff could not have removed himself from the roadway. Also, there was no showing that passersby would have removed the plaintiff if the defendants had not arrived when they did. Defendants only “arrested” the plaintiff after the intoxicated driver struck him. Under these circumstances, the defendants were entitled to qualified immunity because there was no clearly settled law in December 2002 that imposed an affirmative duty to protect the plaintiff here. The Eighth Circuit also rejected the plaintiff’s argument that the defendants’ acts placed the plaintiff in a worse position than he would have been in and thus created danger to him. This was “too speculative. [The man whose car struck the plaintiff] was an intoxicated driver who first ignored emergency lights, a flashlight, and waving arms warning him of the accident scene, and then disregarded the order of armed law enforcement officers to halt before he ran his vehicle over [plaintiff] a second time.” To the contrary, the defendants took affirmative steps to protect the plaintiff. Thus, even if the defendants somehow increased the danger to the plaintiff, they did not act with the deliberate indifference required for a substantive due process violation.