Affirmative duties, systemic harms, and the Due Process Clause.

• Date: 01 February 1996
• Author: Armacost, Barbara E.

Introduction

A woman suffers permanent injury when she is shot during a robbery. She brings suit under the Due Process Clause alleging that municipal police failed to protect her from the injury. Plaintiff challenges the city's policy of disregarding calls for assistance unless and until a crime actually has been committed and alleges that the city has failed to provide adequate police protection in a high-crime area.(1)

A mother brings suit under the Due Process Clause to recover for injuries to her young son who suffered permanent brain damage when his caseworker failed to remove the child from the custody of his abusive father. The social worker's notes indicate that she was worried about the child's safety, but she apparently failed to monitor the situation closely enough.(2)

Police officers arrest an intoxicated driver, impound his car, and leave his female companion stranded in a dangerous section of the city. The woman brings suit under the Due Process Clause for injuries sustained when she is mugged and raped while walking to a local convenience store to call for a ride home.(3)

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The scenarios above have a number of things in common: in each of them, the immediate cause of the injury was a nongovernmental actor. Also in each, the plaintiff sought to bring suit not against the private tortfeasor but against the government, on the theory that state or local officials deprived the plaintiff of a liberty interest by failing to prevent the injuries from occurring. The other commonality is that none of these scenarios ultimately resulted in governmental liability. The rationale for nonliability as expressed by the Supreme Court in Deshaney v. Winnebago County Department of Social Services(4) is that the Due Process Clause

is phrased as a limitation on the State's power to act, not as a guarantee

of certain minimal levels of safety and security. It forbids the

State itself to deprive individuals of life, liberty, or property without

"due process of law," but its language cannot fairly be extended to

impose an affirmative obligation on the State to ensure that those interests

do not come to harm through other means.(5)

In the oft-repeated words of Judge Richard Posner, "[T]he Constitution is a charter of negative rather than positive liberties."(6) Under the Supreme Court's jurisprudence, the only context in which it is certain that the government has an affirmative duty to protect citizens from harm by third parties is where the plaintiff is in the government's custody.(7)

The Deshaney holding has engendered a scholarly response that is impassioned and unequivocally negative.(8) The facts of Deshaney, which in part drive much of the criticism, are "undeniably tragic":(9) social workers followed a four-year-old child's case, documented evidence of abuse by the child's father, but ultimately failed to remove him from his father's custody before he suffered beatings that left him permanently brain damaged.(10) The majority's reminder that Joshua's father inflicted the injury and that "[t]he most that can be said of the state functionaries in this case is that they stood by and did nothing"(11) is normatively unappealing; one might argue that the government exists, at least in part, to protect us from certain harms, and it should not be permitted to stand by and do nothing. Moreover, it is not wholly accurate to say that the government simply did nothing with regard to Joshua: in both general ways, by establishing a department of social services and passing laws regulating marriage and the family, and specific ways, by awarding custody of Joshua to his father and assigning a caseworker to follow him, the government took positive action with regard to Joshua and indeed may have discouraged potential private rescuers from taking action to prevent the harm.(12)

Although no one is inclined to object to the Supreme Court's holdings that those in custody have the right to receive some measure of protection from injury(13)--no one argues that the government can throw you in jad and take no responsibility for providing your basic needs--it is hard to articulate exactly why, as a constitutional matter, custody is special. The Deshaney Court reasoned that the government's duty to protect is triggered when it restrains an individual's ability to act on her own behalf or plays a part in creating or increasing the danger of harm.(14) That reasoning appeals to powerful and widely shared normative intuitions about appropriate governmental behavior; and certainly custody is the most dramatic example of the government limiting one's ability to care for oneself. But it is not clear how the normative intuitions captured in the Court's reasoning are derived from the Due Process Clause and--to the extent they are--why the same reasoning would not apply to a case like Deshaney. It is disingenuous to say that the government did not shape and constrain Joshua's ability to protect himself, even if less so than in the custodial setting.

In light of the nearly universal condemnation of Deshaney,(15) it might come as a surprise that "failure-to-protect"(16) claims in the broader legal context only rarely result in liability. Deshaney is not an otlier in the judicial landscape: in numerous cases spanning more than a decade prior to Deshaney, the lower federal courts were uniformly reluctant to hold the government liable for failures to protect and did so only in very narrow circumstances. In addition, there is a whole universe of ordinary tort cases virtually identical to the cases that have been brought under the Due Process Clause. In the tort context--contrary to a strong, general trend toward increased governmental liability--the overwhelming presumption against liability for failure to protect has held fast.

Critics of Deshaney have not given adequate consideration to this broader legal landscape and the clues it offers for understanding the Supreme Court's rejection of constitutional failure-to-protect claims. This article suggests that the constitutional cases are better explained, not by constitutional text or history, but by judicial reluctance to second-guess legislative decisions about budgetary matters, the same concerns that account for the presumptive rule of nonliability in tort. This rationale for the nonliability rule makes Deshaney a much harder case on its facts and goes a long way toward a more satisfying positive account of the Supreme Court's approach to this line of cases. It also provides a plausible counterargument to the moral and constitutional objections to nonliability in cases like Deshaney.

Part I of the article lays out the major academic criticisms of Deshaney. Part 11 describes the contours of liability for failure to protect in tort. Part Ill offers a positive explanation for the strong presumption against governmental liability(17) in failure-to-protect cases: permitting broad liability for failure to protect would involve the courts in second-guessing political decisions about the use of limited community resources. This explanation has two parts. First, as a matter of institutional competence, budgetary decisions about the appropriate level and distribution of public services are better suited to political rather than judicial resolution. Second, failure-to-protect claims are more likely to involve the courts in budgetary review than other kinds of claims against the government. One may question exactly where the line between political and judicial action ought to be, but the notion that there is a line somewhere--and that judges are seeking to draw such a line in these cases--resonates in many areas of the law. Part IV demonstrates that the resource-allocation rationale has significant explanatory power in constitutional failure-to-protect cases. To the extent these considerations are a significant part of what is driving the results in failure-to-protect cases, they have not been addressed adequately by Deshaney's critics.

1. The "Duty-To-Protect" in the Constitutional Context

   The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property, without due process of law."(18) The text of the Clause has been interpreted to create certain substantive rights as well as to guarantee the right to adequate process. That is, there are certain things the government may not do, regardless of how much process it provides.(19) Perhaps the most well known of the substantive due process rights is the right to privacy.(20) The Due Process Clause also has been construed to forbid a category of tortlike deprivations of life, liberty, or property. For example, under certain circumstances,(21) a prison official who deliberately--or recklessly(22)--lost(23) or damaged(24) a prisoner's personal effects could be charged with unlawful deprivation of property; an official who acted with deliberate indifference toward a serious threat of illness or injury could be found to have violated a liberty interest.(25) Although many of these tortlike cases have involved prisoners, a number of courts have permitted suits for such injuries outside the custodial setting, for example, injuries resulting from the reckless or intentional actions of police officers.(26)

   In Deshaney, petitioners, four-year-old Joshua Deshaney and his mother, sought to extend the reasoning of these tortlike due process cases by arguing that the Winnebago County Social Services Department had deprived Joshua of "his liberty interest in `free[dom] from . . . unjustified intrusions on personal security,' by failing to provide him with adequate protection against his father's violence."(27) For the two years prior to the serious injuries that gave rise to this suit, the Winnebago County Social Services Department had been monitoring Joshua, who had been in the official custody of his father since his parents' divorce when Joshua was still an infant, for suspected abuse by his...