Nahmod Law

In First Midwest Bank Guardian of Estate of LaPorta v. City of Chicago, 988 F.3d 978, 990–91 (7th Cir. 2021), cert. denied, 142 S. Ct. 389, 211 L. Ed. 2d 207 (2021), the Seventh Circuit put DeShaney v. County of Winnebago, 489 U.S. 189 (1989), to unusual use in ruling against the guardian of an individual who was shot by his friend, an off-duty police officer not acting under color of law at the time. (Full disclosure: I played a consulting role for the plaintiff’s law firm)

The guardian claimed that the City of Chicago “had inadequate policies in place to prevent the shooting—or more precisely, that the City’s policy failures caused [the officer] to shoot him.” Specifically, he alleged: the failure to have an “early warning system” for officers likely to engage in misconduct; the failure to investigate and discipline officers for their misconduct; and the “perpetuation” of a code of silence that deterred reporting of such officers. All of this rendered the City liable under Monell v. Dept. of Social Services, 439 U.S. 974 (1978).

Reversing the jury’s compensatory damages award of $44.7 million (!) against the city, the Seventh Circuit declared that the guardian lost on its §1983 substantive due process bodily integrity claim under DeShaney because the guardian was asserting that the city had an affirmative duty to protect the individual from harm. The DeShaney exceptions did not apply. First, there was no special relationship since the individual was not in state custody. And second, the “narrow” state created danger doctrine, which required more than a “generalized risk of indefinite duration and degree,” did not apply because there was no evidence that the city affirmatively placed the individual in danger. Further, according to the Seventh Circuit, the guardian never explicitly raised the state created danger exception, and the jury was never instructed on it.

Finally, the Seventh Circuit rejected the guardian’s argument that DeShaney was inapplicable and that, instead, Monell supported liability inasmuch as the jury found that the city’s policy failures “caused” the officer to shoot the individual. This argument “reflect[ed] a basic misunderstanding of the relationship between Monell and DeShaney. [These cases] are not competing frameworks for liability. The two cases concern fundamentally distinct subjects.” Monell dealt with §1983 interpretation and local government liability, while DeShaney dealt with the constitutional issue of substantive due process. The Seventh Circuit thus concluded that the individual’s constitutional rights were not violated because the city had no affirmative due process duty to protect the individual from the officer’s “private violence.”

Comments

1. Had the police officer here acted under color of law, the DeShaney issue would have disappeared to the extent that DeShaney only applies to the prevention by government of privately caused harm. The issues then would have been, first, whether the police officer’s conduct constituted a substantive due process violation and second, if so, whether the City’s policies caused that substantive due process deprivation. If either question were to be answered in the negative, then the City would not be liable.

2. I have posted regularly about tragic DeShaney cases in the circuits. (You can search “DeShaney” on this blog for many examples) But LaPorta is unusual in that it sharply distinguished between the constitutional interpretation issue posed and the Monell liability issue, a matter of statutory interpretation. This distinction is, of course, sound so far as it goes.

But LaPorta might have come out the other way had the Seventh Circuit found that the challenged conduct–the alleged policies of the City, which were clearly state action–caused the violation of the individual’s substantive due process rights because those policies created the danger to him. The argument is that the City’s policies effectively placed the gun in the off-duty officer’s hand. This the Seventh Circuit did not do because under its approach any state created danger was not sufficiently particularized. The Seventh Circuit also commented that the plaintiff had never explicitly raised the issue. Thus, DeShaney controlled: there was no substantive due process violation.

3. On DeShaney, substantive due process affirmative duties and cases raising those issues, see Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 §§ 3:59-3:61 (2022-23 ed. West/Westlaw).