Nahmod Law

Still playing it coy on the state-created danger exception to DeShaney v. Winnebago County, 489 U.S. 189 (1989), the Fifth Circuit ruled that the defendant public school officials were protected by qualified immunity when they failed to prevent the sexual assault on a disabled student by another student with “known violent tendencies.” The student alleged a state-created danger theory, as to which the Fifth Circuit responded: “[T]o our knowledge we have not categorically ruled out the doctrine either. … Nevertheless, as we have held time and again, the right to be free from state-created danger is not clearly established in this circuit.” Fisher v. Moore, 62 F.4th 912 (5^th Cir. 2023). The opinion was withdrawn and superseded on denial of petition for rehearing en banc by Fisher v. Moore, 73 F.4th 367 (5th Cir. 2023), cert. denied, 144 S. Ct. 569 (2024).

Judge Wiener concurred, 73 F.4th at 375, but disagreed with the decision not to rehear the case en banc, saying in part: “It is well past time for this circuit to be dragged kicking and screaming into the 21^st century….”

Seven other judges dissented from the denial of rehearing en banc, pointing out that ten other circuits had recognized the state-created danger theory. 73 F.4th at 375.

Comment

DeShaney-type cases almost always involve tragic circumstances. However, DeShaney established the general rule that government has no affirmative due process duty to protect citizens from private harm. Nevertheless, two exceptions, both arguably implicit in DeShaney itself, have emerged in the circuits. The first is the special relationship exception, which is accepted by all of the circuits but has been narrowly applied. The second is the state-created danger theory which has been accepted by all of the circuits except the Fifth (as of this writing).

I discuss and analyze DeShaney and related circuit court decisions at length in §§3:59-3:61 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 Edition)(West/Westlaw).