Nahmod Law

DeShaney in the Circuits (IV): The Seventh Circuit’s Reformulation

My last post was on DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), and the Fifth Circuit‘s restrained approach to affirmative duties.

So I thought it might also be useful to mention the Seventh Circuit‘s recent attempt at reformulating some of the doctrinal aspects of affirmative duties.

The Seventh Circuit’s Slade opinion

Slade v. Bd. of School Directors of City of Milwaukee, 2012 WL 6701869, *1 (7th Cir. 2012), involved the drowning of a public school student at a class outing. His parents and estate then brought a § 1983 substantive due process claim against various defendants.

The Seventh Circuit, in an opinion by Judge Posner, affirmed the district court’s grant of summary judgment for the defendants because there was at most gross negligence, which was insufficient as a matter of substantive due process.

In the course of his discussion, however, Judge Posner restated the applicable substantive due process test as follows: “A state does not deprive a person of his life in violation of the Fourteenth Amendment merely by failing to prevent his dying, but does violate the amendment if the death was caused by the reckless act of an employee of the state acting within the scope of his or her employment.”

Judge Posner criticized the use of the terms “affirmative act” and “shocks the conscience” in the case law. In his view, the reformulated test had the virtue of “simplicity.”


1. Even though the term “affirmative act” was criticized by Judge Posner, the reference to a death “caused” by a public employee’s “reckless act” will still require courts (and juries) to decide whether there was an “act” that “caused” the claimed harm. Perhaps the term “affirmative act” has become so loaded that it obscures analysis.

2. Eliminating the term “shocks the conscience” makes a good deal of sense to me. The term adds little or nothing except confusion to the inquiry into the appropriate state of mind required for substantive due process violations. The required state of mind ranges from deliberate indifference–the same as “reckless”?–to “purpose to do harm,” depending on whether there is time to deliberate.

See, on the latter, County of Sacramento v. Lewis, 523 U.S. 833 (1998), which held that where a high-speed police chase causes harm either to the person being pursued or to an innocent bystander, the substantive due process state of mind required is “purpose to do harm.”

3. Why the requirement of “scope of employment” which smacks of state law? Is it intended to mean the same thing as state action, a Fourteenth Amendment requirement? That would be my guess since abuse of government power  constitutes state action and therefore color of law.

On state action and color of law, see Chapter 2 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012, West Group).

4. Finally, the reformulation does not eliminate the need to determine at the outset whether the defendant owed the plaintiff a duty to protect or prevent harm from a third party. This is still governed by DeShaney.

Written by snahmod

June 6, 2013 at 11:25 pm

%d bloggers like this: