DeShaney in the Circuits (II): Affirmative Duties and Danger-Creation
I blogged on August 22, 2011, about the Supreme Court’s controversial no-affirmative due process duty decision in DeShaney v. County of Winnebago, 489 U.S. 189 (1989). I also set out several then-current circuit court decisions dealing with DeShaney issues. Please see that post for background.
I came across the following more recent decisions from the First, Fifth, Seventh and Eighth Circuits in the course of preparing the 2012 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012)(forthcoming in September).
Coscia v. Town of Pembroke, 659 F.3d 37 (1st Cir. 2011)
The decedent’s mother, representing the estate, sued police officer and others, alleging that they failed to provide medical services to her 21 year-old son who threatened suicide while in police custody following a one-car accident, and who in fact committed suicide about fourteen hours after his release by stepping in front of a train. During the time he was in custody he attempted to engage in self-destructive behavior and was deemed a high suicide risk. Nevertheless, he was not examined by a doctor but was released on his own recognizance. Reversing the district court and dismissing the complaint, the First Circuit stated: “We … hold that in the absence of a risk of harm created or intensified by state action there is no due process liability for harm suffered by a prior detainee after release from custody in circumstances that do not effectively extend any state impediment to exercising self-help or to receiving whatever aid by others may normally be available.”
Comment: Note the proximate cause/remoteness problem for the plaintiff here in addition to the danger creation issue.
Doe ex rel Magee v. Covington County School Dist., 649 F.3d 335 (5th Cir. 2011)
In an important decision of the Fifth Circuit, the court addressed this question: “Are there circumstances under which a compulsory-attendance, elementary public school has a ‘special relationship’ with its nine-year-old students such that it has a constitutional ‘duty to protect’ their personal security?” It answered in the affirmative as a matter of first impression in the circuit.
The plaintiffs, the father and grandmother of a nine-year-old girl, on whose behalf they acted, sued a county school district, board of education, school officials and others in connection with the repeated release of the girl into the custody of an unauthorized adult for the purpose of facilitating his taking her off school premises—where he raped her—and thereby acting with deliberate indifference to her safety. The Fifth Circuit determined that there was a special relationship in this case between the school and the child because it repeatedly handed her over to the unauthorized adult during school hours, surrendering to him the school’s statutory full and exclusive custody over her. The school thereby isolated her from her teachers and classmates without any school’s supervision and against her will and that of her grandmother (her legal guardian). It thus failed in its duty “to protect her from such a quintessential and widely known threat to young children as pedophilia.” Accordingly, the plaintiffs’ complaint survived the defense motion to dismiss under Rule 12(b)(6). However, because this was a case of first impression in the circuit, the individual defendants sued in their individual capacities were protected by qualified immunity: the law was not clearly established when these events occurred in 2007. Indeed, some Fifth Circuit decisions at the time may have suggested that schools could never be in a special relationship with their students.
Judge King dissented, 649 F.3d at 354, arguing that the panel got the special relationship issue wrong: “Our en banc court, and every other circuit to consider the issue, has unequivocally concluded that public school students do not have such a [protected liberty interest in remaining safe at school] under the Constitution. … The majority’s decision is an unwarranted expansion of the ‘special relationship’ exception to the general rule that state actors are not required to protect individuals from private harm….”
Comment: This Fifth Circuit decision is particularly significant, even though the individual defendants still won on qualified immunity.
Jackson v. Indian Prairie School Dist., 653 F.3d 647 (7th Cir. 2011)
The plaintiff, a special education teacher, sued a school district and several administrators alleging a violation of substantive due process under the danger-creation theory because she was ordered to an autistic child’s classroom even though he was known to be violent and should have been transferred to an alternative school. This time, the child threw a chair at the plaintiff, causing her to fall and injure herself. Affirming the district court’s grant of summary judgment to the defendants, the Seventh Circuit agreed that the challenged conduct, which involved deliberation by the defendants, did not shock the conscience even though the child’s outbursts were frequent, he was prone to acts of violence, he had harmed teachers in the past, he was a strong child and he was in the midst of an outburst when the plaintiff was ordered to the classroom. Cutting the other way: the child often hurt himself and not others, the school district held regular evaluations, he was showing a trend to more verbal outbursts and the recommendation was that the educational setting that best served the child’s needs was “supported education in a general educational classroom.” All of these latter considerations may have rendered the district’s decision not to transfer the child short-sighted and negligent but not conscience-shocking.
Comment: Even where a plaintiff overcomes the no-duty problem, he or she must still prove the state of mind required for a substantive due process violation. Also, the plaintiff was a public employee, and public employees typically have an especially difficult time winning affirmative duty cases.
Both of these points apply equally to the next case as well.
Fields v. Abbott, 652 F.3d 886 (8th Cir. 2011)
Fields involved a jailor’s section 1983 claim against a county and several officials under the danger-creation theory for failing to prevent her from being seriously injured by two inmates who took her hostage while at work and attacked her after she honored their request to go to the jail’s law library. Reversing the district court, the Eighth Circuit found that the challenged conduct did not shock the conscience. It was true that the defendants knew the jail was understaffed and that there was an interior mounted door handle that the plaintiff had complained about. But the plaintiff knew these things as well, and therefore the defendants had no reason to believe that she would not take them into account in dealing with inmates. In addition, these conditions were not inherently dangerous. At most, the defendants were grossly negligent, not with the subjective criminal recklessness required by the deliberate indifference standard where there was time to deliberate.