Nahmod Law

A Student Drowns While On A Field Trip: The Separate State of Mind Hurdle in Substantive Due Process Affirmative Duty Cases

I have posted (too?) many times over the years on DeShaney substantive due process affirmative duty cases, emphasizing all the while that the threshold issue in such cases is whether there is an affirmative substantive due process duty to begin with.

Typically, the answer in these tragic cases is “no”–there is generally no constitutional duty to protect citizens from private harm–unless there is a special relationship or the state has created the danger. DeShaney v. Winnebago County, 489 U.S. 189 (1989). See generally on DeShaney and its progeny, NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 secs. 9:59-9:61 (2022-23 ed.)(West/Westlaw).

But even where a section 1983 plaintiff is able to overcome the duty issue by, say, plausibly alleging that the state created the danger, that plaintiff may still lose because of the substantive due process state of mind requirement of at least deliberate indifference. As an example, consider Herrera v. Los Angeles Unified School Dist., 18 F.4th 1156 (9th Cir. 2021).

In Herrera, an autistic high school student drowned while on a field trip. His parents brought a section1983 substantive due process claim against various school defendants, all of whom were granted summary judgment by the district court. Finding that there was a state-created danger but still affirming, the Ninth Circuit pointed out that a school aide who was generally watching the student in the pool saw the student exit the shallow end of the pool and enter the locker room area, but he did not see the student shortly thereafter return to the pool and then drown.

The Ninth Circuit explained: “’[W]e have continued to apply the subjective standard in all state-created danger claims and in non-detainee failure-to-protect claims like the one presented here.” Because there was no genuine issue of fact in dispute that the school aide was subjectively unaware of any immediate danger to the student, the school aide was not deliberately indifferent, as required for a substantive due process failure to protect claim. Also, because other lifeguards were monitoring the area as well, the school aide did not abandon the student or leave him completely without protection. This too showed that the school aide did not act with deliberate indifference.


The Ninth Circuit applied a subjective deliberate indifference standard and not an objective one. It rejected the plaintiff’s argument that the student’s situation was analogous to that of the pretrial detainee in Kingsley v. Hendrickson, 576 U.S. 389 (2015), which applied an objective reasonableness standard to the pretrial detainee’s section 1983 substantive due process excessive force claim.

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Written by snahmod

January 12, 2023 at 11:36 am

Posted in Uncategorized

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