I remember DeShaney (1989) from my ConLaw class [as an undergrad].

I know the Court, with Rehnquist writing for the [6-3] majority, affirmed the LACK OF any affirmative right to state protection (sometimes referred to as a "duty to protect").  Though DeShaney was a case whose roots were in child abuse, we most often see this in cases regarding spousal abuse, protective orders, etc, etc, etc.

As a self-defense proponent, I remember attacking this case with significantly more fervor than most of the others, but I made only limited notations in the margins of my book; most were penned in a binder which I can no longer locate.

Thus, I have a few questions:

1) Since the Court affirmed [generally] that there IS NO "duty to protect," when did it actually originate?  Of course, the easy answer is "When the Constitution was written/ratified," but they were affirming case law, not a "statute."  Unfortunately, they didn't cite it.  I seem to remember something circa 1860 or 1890, but I'm not certain.  Obviously, a case circa *any* year beginning with 18xx wouldn't originate as a domestic abuse case.

2) The only exception I've noticed were those individuals with whom the State had established ("contracted," loosely-defined?) a so-called "special relationship".  Was this part of the original opinion which the Court affirmed, or did it originate later (e.g. with DeShaney?  The brief for DeShaney asserts the term at least twice, suggesting [to me] that it's an established "terme de art," but the fact that I can't find it in the brief for the State suggests to me that it either didn't exist at the time (e.g. was "created" by DeShaney) or the State didnt' think it would come into play and therefore didn't prepare for it.

3) The Court's opinion in DeShaney seems to suggest that *only* those people held by the State against their will qualify for this "special relationship."  What about folks who are taken into protective custody by the law, who may even possibly be living in a "safe house"?


One of the things I hope to do with this is create a "timeline" of "Duty to Protect" jurisprudence, along the lines of:

1) 1817 -- Smith v. Wherever -- "Duty to protect" first asserted; Court acknowledged its existence, found that whatever blah blah blah.

2) 1893 -- Jones v. Wherever Else -- "Special relationship" required for "duty to protect" first established/mentioned.

3) 1989 -- DeShaney v. Winnebago Cty D.S.S. -- Existence of relationship between individual and Social Services insufficient to rise to the level of "special relationship

You get the picture.

The other "main thing" I want is to come across the "seminal statement" that the State is not responsible for the safety of any particular individual.  I remember coming across language of this nature, but it was in a State Court case which never made it to the Supremes.

I have also seen several "good" cases out of the State of New York (, IIRC) that involved police inaction, non-response, and downright ineptness, but none went so far as to say, in plain English, "The police are not responsible for your safety; protect yourself."

Any and all assistance will be greatly appreciated.

Best,

Jake.

DeShaney v. Winnebago County Dept. of Social Services
489 U.S. 189, 109 S.Ct. 998

Mother of child who had been beaten by father brought civil rights action against social workers and local officials who had received complaints that the child was being abused by his father but had not removed him from his father's custody. The Supreme Court, Chief Justice Rehnquist, held that State had no constitutional duty to protect child from his father after receiving reports of possible abuse.

State owed no duty to child whose abuse it was investigating to protect him from beating by his father, despite claim that special relationship existed between the child and the state.

While certain "special relationships" created or assumed by the State with respect to particular individuals may give rise to an affirmative duty, enforceable through the Due Process Clause, to provide adequate protection, the affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty.


Here is the language you are looking for:

"But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The 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. Nor does history support such an expansive reading of the constitutional text."

Quoted: DeShaney v. Winnebago County Dept. of Social Services 489 U.S. 189, 109 S.Ct. 998 <snip> While certain "special relationships" created or assumed by the State with respect to particular individuals may give rise to an affirmative duty, enforceable through the Due Process Clause, to provide adequate protection, the affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty. <snip>

Thanks for the speedy response, t.  I've got the full-text of DeShaney (as well as some add'l annotation), but somehow managed to miss the above statement where the Court listed the [only?] circumstances which could give rise to a "special relationship".  I guess those protective custody folks are SOL then, huh?

The paragraph I left in your post for this response is actually interesting on another level, albeit one which would never fly, Constitutionally.  Too bad they put the word "similar" in there, or it'd be a much better argument.

Theoretically, however, a situation like San Francisco (see my second post in this thread), where the "State" has restrained the personal liberty of citizens to carry handguns for self-protection might conceivably give rise to some such "special relationship".  Even *more so* if one were to throw the "lower bar" argument into the mix: That a "special relationship" shouldn't even be required, since it's not merely an individual whose personal liberty has been restrained, but an entire group of former handgun owners.  Class action against the City of San Francisco, anyone?

Can you imagine the burden of an affirmative duty to state protection in situations like NOLA, when/if martial law is not declared, but people are stripped of their weapons wholesale?

Just some tangential thoughts........

DeShaney v. Winnebago County Dept. of Social Services
489 U.S. 189, 109 S.Ct. 998
<snip>
While certain "special relationships" created or assumed by the State with respect to particular individuals may give rise to an affirmative duty, enforceable through the Due Process Clause, to provide adequate protection, the affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty.
<snip>
Thanks for the speedy response, t.  I've got the full-text of DeShaney (as well as some add'l annotation), but somehow managed to miss the above statement where the Court listed the [only?] circumstances which could give rise to a "special relationship".  I guess those protective custody folks are SOL then, huh?


It would depend on whether the state imposed the protective custody upon them. I doubt the state would do that, so, they are probably SOL. Keep in mind, though, that this is only about whether there is a constitutional duty, not whether there is any duty at all under some theory of tort liability. Unfortunately for DeShaney, there is a large body of tort law that says that a governmental entity like a fire or police department can't be sued for every failure or mistake it makes, because that would just be too much of a burden on society. There would have to be some kind of outrageous negligence or intentional failure for the entity to become civilly liable. I think.

The paragraph I left in your post for this response is actually interesting on another level, albeit one which would never fly, Constitutionally.  Too bad they put the word "similar" in there, or it'd be a much better argument.

Theoretically, however, a situation like San Francisco (see my second post in this thread), where the "State" has restrained the personal liberty of citizens to carry handguns for self-protection might conceivably give rise to some such "special relationship".  That's a very interesting argument. Even *more so* if one were to throw the "lower bar" argument into the mix: That a "special relationship" shouldn't even be required, since it's not merely an individual whose personal liberty has been restrained, but an entire group of former handgun owners.  Class action against the City of San Francisco, anyone?

Well, it's a restriction on all citizens to bar them from, as I understand it, even possessing a handgun in San Francisco. The DeShaney case is actually what we call a "1983" case, which refers to the statute under which public entities are sued for violating the constitution. To sue San Fran, you would need to find a plaintiff who had been individually harmed in some way by the failure of the state to protect him, and then sue under 1983 for a violation of due process based on the special relationship.


Can you imagine the burden of an affirmative duty to state protection in situations like NOLA, when/if martial law is not declared, but people are stripped of their weapons wholesale?

You could probably make an argument against the government of New Orleans under DeShaney, but only for people who had been actually harmed. The problem is, you couldn't directly affect NO or SF's policy. BUT- if you had a few big settlements, that tends to magically change policy. This is one of the good things that most people don't realize that trial lawyers do in America. We get outraged by a plaintiff making a million dollars off a corporation over a dangerous situation, but that is exactly what--and some might say the ONLY--thing that will ever get that company to make it's policies safer for everyone. for every silly tag on a box "caution: coffee is hot" there are hundreds of extra-strength crib bars and fire-retardant pajamas.  </rant>

Understood about the trial lawyers affecting policy (state or corporate/private).

My ConLaw prof actually used the McDonald's "hot coffee" case to highlight issues with regard to this.  IIRC, he mentioned that the fine imposed ($3M, $4M, whatever it was) represented one day's savings or revenue from their practice of brewing the coffee hotter than they were supposed to.

Whether folks believe that is "right" or "wrong" is a seperate issue; at least it is explanatory with regard to a process.  Much better than just chucking a dart at a dartboard and letting that be the penalty.