Nahmod Law

DeShaney’s No-Affirmative Duty Rule, Section 1983 and Danger-Creation: Three Recent Decisions

Almost everyone knows by now that in a still-controversial decision, DeShaney v. County of Winnebago, 489 U.S. 189 (1989), the Supreme Court ruled that the due process clause does not create an affirmative substantive due process duty on the part of government to protect citizens from private harm. The Court in DeShaney suggested two exceptions to this general rule: (1) when the government or its officials or employees themselves created the danger in which the plaintiff found himself or herself, and (2) when the plaintiff is in the government’s custody and is thereby prevented from protecting himself or herself. Many, if not most, DeShaney-type cases involve the danger-creation exception and the section 1983 plaintiffs typically lose.

(I’ve posted about DeShaney over the years on this blog. All you need to do to find these posts is to search “DeShaney.” Also, for much more, see ch. 3 in my treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2020)(West).)

What follows are three recent decisions that rejected the state-created danger exception to DeShaney.

A Fourth Circuit Case: Graves v. Lioi

The decedent’s estate filed a section 1983 substantive due process suit against two police officers claiming that they were responsible for the stabbing death of the decedent, the assailant’s pregnant wife, outside a courthouse where she had just obtained a protective order against him. The officers allegedly enabled the assailant to postpone his self-surrender on a misdemeanor arrest warrant, thereby providing him with the opportunity to murder his wife. Affirming the district court’s grant of summary judgment to the officers, the Fourth Circuit determined that the record did not show that they committed affirmative acts that would render them liable under the state created danger doctrine. These acts included the letters and texts of one of the officers to the assailant, the conduct of the second officer relating to the arrest warrant against the assailant and their decisions to allow the assailant to leave a police department district office and self-surrender. There was also little or no evidence of a causal link between the alleged affirmative acts and the decedent’s harm. Further, the defendants were protected by qualified immunity. Graves v. Lioi, 930 F.3d 307 (4th Cir. 2019).

Judge Gregory dissented, arguing that the majority improperly construed the evidence which, in fact, showed that the defendants engaged in actionable affirmative acts to allow the assailant to evade arrest until a date considered convenient to him, when he was finally able to stab his pregnant wife.

A Seventh Circuit Case: Estate of Her v. Hoeppner

A child’s estate filed a section 1983 suit against a parks director, seven lifeguards and a city after the six-year-old child was found unresponsive on the bottom of a man-made swimming pond operated by the city. She died several days later. The Seventh Circuit affirmed the district court’s grant of summary judgment to the defendants, rejecting the plaintiff’s state danger-created theories. “No reasonable jury could find that the defendants created a danger just by operating a public swimming pond or that they did anything to increase the danger to [the child[ before she drowned. Nor was their conduct so egregious and culpable that it ‘shocks the conscience,’ a necessary predicate for a court to find that an injury from a state-created danger amounts to a due process violation.” There was no evidence that the swimming pond was “distinctively dangerous.” There was also no evidence that the lifeguards disregarded their training: the child slipped below the surface without being noticed by anyone. At most, this was a negligence claim. Estate of Her v. Hoeppner, 939 F.3d 872 (7th Cir. 2019).

An Arkansas Supreme Court Case: Yang v. City of Little Rock

Where the plaintiff  filed a section 1983 damages action against a city and others in connection with the alleged mishandling of a 911 call requesting rescue services for his deceased son, the Supreme Court of Arkansas affirmed the lower court’s grant of summary judgment to the defendants. As to the plaintiff’s claim that the city failed to provide competent emergency services, thereby causing his son’s death, the court declared that under DeShaney, the city had no constitutional duty to provide rescue services for the son. And as to the plaintiff’s claim that the city was liable under a state-created-danger exception because its water rescue operations prevented rescue attempts by others, there was no evidence that the city arbitrarily prohibited rescue attempts by anyone: indeed, there were no reasonable alternative avenues of rescue here. In short, there was no evidence that the city affirmatively placed the plaintiff’s son in a position of danger that he would not otherwise have faced. Dayong Yang v. City of Little Rock, 2019 Ark. 169 (2019).

Comments

  1. I consider the strongest of these three cases for the state-created danger exception to DeShaney to be the Fourth Circuit’s Graves decision. Even here, though, an alternative ground for the decision in favor of defendants was qualified immunity. So the police officers escaped section 1983 damages liability in any event.

2. Even where section 1983 plaintiffs confronting DeShaney can surmount the affirmative duty issue, they still have to show a highly culpable state of mind, often put somewhat confusingly by the circuits in “conscience shocking” terms. What is really required is at least deliberate indifference which is still not all that easy to show. More than negligence or gross negligence is required.

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Written by snahmod

November 17, 2020 at 11:56 am

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