DeShaney in the Circuits (V): The Third and Tenth Circuits Weigh In
I have blogged previously about how the DeShaney decision has fared in the circuits. The first time was on 8-22-11; the second time was on 6-1-12; the third time was on 5-20-13; and the most recent was on 6-6-13.
Here are two DeShaney-related decisions from the Third and Tenth Circuits, and some comments. I came across these cases when preparing the 2014 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
Third Circuit: Henry v. City of Erie
The decedents’ estates sued a city’s housing authority and others alleging that they created the danger that led to decedents’ deaths by fire in Section 8 housing through their approval and subsidization of an apartment even though the apartment did not comply with Section 8’s housing standards because it lacked a smoke detector and a fire escape ladder. Henry v. City of Erie, 728 F.3d 275 (3rd Cir. 2013).
Ruling against the estates, the Third Circuit reasoned that they did not plausibly allege that the defendants’ acts were close enough in time and succession to the ultimate harm: there was a lengthy period of time as well as “intervening forces and actions.” Also, the estates did not allege that the defendants caused the fire or increased decedents’ susceptibility to it. Moreover, the defendants were not responsible for installing a smoke detector or fire escape. “[T]here were too many links in the causal chain after defendants acted and before tragedy struck.” The Third Circuit concluded with the observation that it was declining to expand the state-created danger exception.
Comment: Even though the Third Circuit acknowledged the state-created danger exception to DeShaney, it nevertheless ruled on what seem to be proximate cause grounds (with a hint of causation in fact) that the estates did not state section 1983 substantive due process claims. This was a way of avoiding the need to decide whether an affirmative duty existed in the first place.
Tenth Circuit: Estate of B.I.C. v. Gillen
Grandparents sued a social worker for damages under the substantive due process state danger-creation theory for her deliberate indifference to extensive evidence of abuse that allegedly led to the death of their granddaughter at the hands of the natural father’s girlfriend (later convicted of murdering the granddaughter). The granddaughter was living with the natural father and his girlfriend at the time. The Tenth Circuit found that the plaintiffs satisfied the requisite showing of affirmative conduct and private violence here.
For one thing, the plaintiffs showed that the defendant’s “inaction” was based on her animus; that is, there was a deliberate decision to ignore based on a decade-long animosity to the family. For another, there were affirmative acts such as the defendant’s refusal to return police phone calls, her refusal to accept photos showing injury, her lying about being in the father’s home, her telling the plaintiffs that allegations of abuse were not her issue but rather for law enforcement and her claiming that these allegations were unsubstantiated. Moreover, the defendant’s conduct was conscience-shocking. Finally, the defendant was not entitled to qualified immunity because she violated clearly settled law in fall 2007. Estate of B.I.C. v. Gillen, 702 F.3d 1182 (10th Cir. 2012). Judge Matheson concurred, 702 F.3d, at 1192, arguing that the court should not have addressed the question whether the defendant’s alleged intentional inaction constituted “affirmative conduct.”
Thereafter, the Tenth Circuit granted the defendant’s petition for rehearing in part, denied en banc review, ordered the original opinion to be withdrawn and substituted an amended version that affirmed in part, reversed in part and remanded. Estate of B.I.C. v. Gillen, 710 F.3d 1168 (10th Cir. 2013). In this amended opinion, the Tenth Circuit dealt only with the requirement of conscience shocking conduct and found it here, but remanded to the district court to determine whether other elements on a danger-creation claim, including affirmative conduct, were present.
Comment: The Tenth Circuit was obviously uncomfortable with the broad scope of its prior decision on the state-created danger issue. On rehearing, it therefore addressed only the easier state of mind issue, namely conscience shocking, and had little difficulty finding it here, particularly in light of the defendant’s previously displayed animus. However, in remanding, it wanted to get additional evidence on the affirmative conduct requirement for the state-created danger exception to DeShaney so as to be sure the claim involved more than failure to act.
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