HOLDING GOVERNMENT OFFICIALS ACCOUNTABLE BY APPLYING THE STATE-CREATED DANGER DOCTRINE TO CASES OF SUICIDE.

• Author: Levine, Zoe

INTRODUCTION 209 I. PART I 214 A. Section 1983, Qualified Immunity, and the State-Created Danger Doctrine 214 1. The Evolution of the State-Created Danger Doctrine 216 B. State-Created Danger Doctrine Applied to Suicide 218 C. Broad Overview of Current State-Created Danger Case Law Involving the Suicide Subset 219 1. Analysis of Case Law by Numbers 220 II. PART II 221 A. A New Interpretation of DeShaney that the Supreme Court Should Adopt 221 1. New Test: Expanding State-Created Danger to Protect More Civilians from Officials' Actions and Decisions 222 B. Detailed Analysis of Case Law and New Test Applied to Those Cases 224 1. The Only Circuit to Have Adopted the State Created Danger Doctrine in the Suicide Subset at the Appellate Level--The Tenth Circuit 224 2. The First Circuit--Failure for Lack of Conscience- Shocking Behavior 226 3. The Third Circuit--Failure for Lack of Conscience- Shocking Behavior and Failure to Create or Exacerbate a Danger 227 4. The Seventh Circuit - Failure for Lack of Foreseeability and Lack of Creation or Exacerbation of Risk of Harm 230 5. The Eleventh Circuit--Failure for No Creation or Exacerbation of Risk of Harm 232 C. Police Cases 234 1. The Only Circuit to have Officially Rejected Application of the Suicide Subset at the Appellate Level: The Sixth Circuit--Failure for Lack of a "Clearly-Established Right" 234 2. The Tenth Circuit--Christiansen--Failure for Lack of Danger Creation and Lack of Conscience-Shocking Behavior 236 3. District Case--Ferreira (D.R.I.)--Failure for Lack of Danger Creation and Lack of Conscience-Shocking Behavior 237 4. District Case--Bynum (S.D. Miss.)--Failure for Lack of Danger Creation 237 CONCLUSION 238 INTRODUCTION

Under federal law, plaintiffs whose civil rights have been violated by government officials may receive monetary compensation through Section 1983 of the Civil Rights Act. (1) However, the path to recovery is convoluted; the doctrine of qualified immunity has hampered the success of Section 1983 claims. (2) Qualified immunity blocks some cases against government entities from going to trial to prevent the government from paying money judgments on "insubstantial" cases. (3) Specific exceptions can overcome qualified immunity; the state-created danger doctrine is one such exception. (4)

At its heart, the state-created danger doctrine is an exception to qualified immunity and applies when a state official creates a danger to another person, and that danger harms them. (5) For example, in one case, a police officer placed a woman in danger by abandoning her in a dangerous neighborhood after pulling over the car she was in and arresting the intoxicated driver of that car. (6) Alone in the neighborhood, she was later raped. (7) The existence of this exception is valuable as it both acknowledges the reality that officials can create a risk of harm to others through their behavior and creates a mechanism through which they may be held accountable for that harm. (8) Holding government officials accountable through this exception is especially important when those officials operate within the realm of criminal justice. Police officers and law enforcement officials are in a position to create more harm than average government officials as they have a significant amount of power through their state-sanctioned authority and potential access to weapons. (9) Moreover, enforcing accountability through this exception would likely incentivize the officers to act with more care in the future. (10)

However, since it is a judicially created exception, and because the Supreme Court has not yet established a clear standard to apply the state-created danger doctrine, each circuit has devised its own test to overcome qualified immunity applying the exception." The issues surrounding the applications of different circuit tests have been explored extensively through academic works. (12) Within these specific tests, this Comment will examine issues within a category of lesser-known factual settings where the statecreated danger doctrine is applied: cases involving suicide. For clarity, this Comment will refer to this category as the suicide subset. The suicide subset is a group of cases in which a government official's decisions lead another individual to take their own life, and that individual's estate or family sues. (13)

Within the state-created danger doctrine, the suicide subset is critical because it breaks with the traditionally applied notion that the ultimate harm that the plaintiff experienced, caused by the actions of the government official, must come from an outside third party.' (4) Recognizing suicide under the state-created danger doctrine exception validates the notion that a government official's actions can cause an individual mental distress leading to physical harm, and acknowledges that this harm violates their Fourteenth Amendment due process rights. (15) In a law enforcement context, this subset could examine cases in which the actions or decisions of a police officer or other law enforcement official cause or result in another person (not in their custody) taking their own life. (16)

Allowing the state-created danger doctrine exception to apply to suicide cases is similarly valuable for several reasons. As discussed earlier, these officials are in a position where they can create more harm than average government officials. Allowing an exception to qualified immunity in these cases would incentivize these officials to exercise care in emotionally fraught situations involving individuals with known mental health issues. Moreover, these officers and officials are more likely to deal with mentally ill people regularly in situations involving their mental illness (i.e., officials may conduct a welfare check to verify the status of an individual who is in the midst of a mental health crisis and might currently be suicidal). (17)

The suicide subset of the state-created danger doctrine is deeply flawed. Not every circuit that has adopted the state-created danger doctrine permits the exception to apply in cases of suicide. (18) Moreover, the circuits considering the doctrine have created strict tests, causing plaintiffs to fail to prevail even in cases where it seems that government officials' actions have created or exacerbated a danger to an individual that far surpassed negligence, seemingly fitting the purpose of the exception. (19)

Part I will examine why these cases are failing for plaintiffs. It will first explore the interaction between Section 1983, qualified immunity and the state-created danger doctrine by providing an overview of each and describing where and when they overlap. Next, this Comment will examine the commonalities in each circuit test as applied to suicide. (20) Even though each circuit has a slightly different test, the primary similarity between the tests involves their success rate: plaintiffs' cases almost always fail. At the appellate level, only the Tenth Circuit has explicitly allowed the state-created danger exception to apply to suicide. (21) The Tenth Circuit case establishing the new rule is also the only appellate-level case allowing a plaintiff to succeed in a suicide-related state-created danger case. (22)

Among the circuits that have not formally allowed the state-created danger doctrine to apply to suicide-subset cases, appellate cases fail for different reasons. This Comment will compare the different tests, as applied in cases, to reveal that cases across circuits usually fail for one or more of the following reasons: (1) a finding that there was a lack of foreseeability, (2) a finding that a government official's actions were not conscience-shocking, and (3) a finding that an official did not create harm or exacerbate vulnerability. I conclude that the third reason for failure is the most problematic as it seems to block cases that would otherwise fit into the purpose of state-created danger doctrine, when an official's actions have created or exacerbated danger in a way that seems to have surpassed mere negligence.

Part II of this Comment will propose a solution. This new test would enable state-created danger claims involving suicide-related cases to succeed more equally among plaintiffs and defendants by reinterpreting the originating language of the state-created-danger doctrine. I will then revisit the appellate cases by applying the new test to each case to show how the test could lead to success for plaintiffs in those cases that seemed to suit the purpose of the state-created danger doctrine. I will also apply the new test to several cases involving law enforcement officials to show that the results would be more even in that context.

While the test stems from DeShaney v. Winnebago County Department of Social Services, the Supreme Court case that originated state-created danger doctrine, my excursion through the application of circuit tests is necessary for two reasons. First, it shows exactly how circuits are applying the language of DeShaney to the suicide subset cases, and second, the holdings of these cases reveal how these interpretations fail to serve the purpose of state-created danger doctrine when the courts do not find that officials created or exacerbated harm. Courts often find that the officials did not cause or exacerbate the risk of harm or danger because the individual was already suicidal at the time of their interaction, so the risk of harm already existed. (23) This new test would reinterpret the language of DeShaney to find that a new creation or exacerbation of danger occurred if an official's actions or decisions temporarily closed off the risk of harm by creating a situation in which the harm was unlikely to occur, then later reopened that risk of harm through subsequent actions or decisions.

1. PART I: THE STATE-CREATED DANGER DOCTRINE

1. SECTION 1983, QUALIFIED IMMUNITY, AND THE STATE-CREATED DANGER DOCTRINE

   Section 1983 has a long history. Created in...