SUPREME COURT STANCE ON IMMUMITIES/NEGLIGENT SOCIAL WORKERS

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SUPREME COURT STANCE ON IMMUMITIES/NEGLIGENT SOCIAL WORKERS

Postby Dazeemay » Sat Sep 30, 2006 11:33 am

A "must read" case that explains and outlines the United States Supreme Court's stance on immunities for negligent social workers

U.S. Supreme Court
DESHANEY v. WINNEBAGO CTY. SOC. SERVS. DEPT.,
489 U.S. 189 (1989)

DESHANEY, A MINOR, BY HIS GUARDIAN AD LITEM, ET AL. v. WINNEBAGO COUNTY
DEPARTMENT OF SOCIAL SERVICES ET AL. CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 87-154.

Argued November 2, 1988 Decided February 22, 1989

Petitioner is a child who was subjected to a series of beatings by his father, with whom he lived.
Respondents, a county department of social services and several of its social workers, received
complaints that petitioner was being abused by his father and took various steps to protect him; they did
not, however, act to remove petitioner from his father's custody. Petitioner's father finally beat him so
severely that he suffered permanent brain damage and was rendered profoundly retarded. Petitioner
and his mother sued respondents under 42 U.S.C. 1983, alleging that respondents had deprived
petitioner of his liberty interest in bodily integrity, in violation of his rights under the substantive
component of the Fourteenth Amendment's Due Process Clause, by failing to intervene to protect him
against his father's violence. The District Court granted summary judgment for respondents, and the
Court of Appeals affirmed.

Held:

Respondents' failure to provide petitioner with adequate protection against his father's violence did not
violate his rights under the substantive component of the Due Process Clause. Pp. 194-203.

(a) A State's failure to protect an individual against private violence generally does not constitute a
violation of the Due Process Clause, because the Clause imposes no duty on the State to provide
members of the general public with adequate protective services. 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; while it
forbids the State itself to deprive individuals of life, liberty, and property without due process of law, its
language cannot fairly be read to impose an affirmative obligation on the State to ensure that those
interests do not come to harm through other means. Pp. 194-197.

(b) There is no merit to petitioner's contention that the State's knowledge of his danger and expressions
of willingness to protect him against that danger established a "special relationship" giving rise to an
affirmative constitutional duty to protect. 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 [489 U.S. 189, 190] Clause, to provide adequate protection, see Estelle v. Gamble, 429
U.S. 97; Youngberg v. Romeo, 457 U.S. 307, 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. No such duty existed here, for the harms
petitioner suffered occurred not while the State was holding him in its custody, but while he was in the
custody of his natural father, who was in no sense a state actor. While the State may have been aware
of the dangers that he faced, it played no part in their creation, nor did it do anything to render him more
vulnerable to them. Under these circumstances, the Due Process Clause did not impose upon the State
an affirmative duty to provide petitioner with adequate protection. Pp. 197-201.

(c) It may well be that by voluntarily undertaking to provide petitioner with protection against a danger it
played no part in creating, the State acquired a duty under state tort law to provide him with adequate
protection against that danger. But the Due Process Clause does not transform every tort committed by
a state actor into a constitutional violation. Pp. 201-202.

812 F.2d. 298, affirmed.

REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, STEVENS, O'CONNOR,
SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which
MARSHALL and BLACKMUN, JJ., joined, post, p. 203. BLACKMUN, J., filed a dissenting opinion,
post, p. 212.

Donald J. Sullivan argued the cause for petitioners. With him on the briefs was Curry First.

Mark J. Mingo argued the cause for respondents. With him on the brief were Wayne M. Yankala and
Joel I. Klein.

Deputy Solicitor General Ayer argued the cause for the United States as amicus curiae urging
affirmance. With him on the brief were Solicitor General Fried, Assistant Attorney General Bolton, Roy
T. Englert, Jr., Barbara L. Herwig, and John S. Koppel.*

[Footnote *] Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union
Children's Rights Project et al. by Christopher A. Hansen, Marcia Robinson Lowry, John A. Powell,
Steven R. Shapiro, and [489 U.S. 189, 191] Helen Hershkoff; and for the Massachusetts Committee
for Children and Youth by Laura L. Carroll.

Briefs urging affirmance were filed for the State of New York et al. by Robert Abrams, Attorney
General of New York, O. Peter Sherwood, Solicitor General, Peter H. Schiff, Deputy Solicitor General,
and Michael S. Buskus, Assistant Attorney General, Joseph I. Lieberman, Attorney General of
Connecticut, J. Joseph Curran, Jr., Attorney General of Maryland, Dave Frohnmayer, Attorney General
of Oregon, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Donald J. Hanaway, Attorney
General of Wisconsin, and Charles Hoornstra, Assistant Attorney General; and for the National
Association of Counties et al. by Benna Ruth Solomon and Douglas A. Poe.

Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon filed a brief for the National
School Boards Association as amicus curiae. [489 U.S. 189, 191]

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner is a boy who was beaten and permanently injured by his father, with whom he lived.
Respondents are social workers and other local officials who received complaints that petitioner was
being abused by his father and had reason to believe that this was the case, but nonetheless did not act
to remove petitioner from his father's custody. Petitioner sued respondents claiming that their failure to
act deprived him of his liberty in violation of the Due Process Clause of the Fourteenth Amendment to
the United States Constitution. We hold that it did not.

I

The facts of this case are undeniably tragic. Petitioner Joshua DeShaney was born in 1979. In 1980, a
Wyoming court granted his parents a divorce and awarded custody of Joshua to his father, Randy
DeShaney. The father shortly thereafter moved to Neenah, a city located in Winnebago County,
Wisconsin, taking the infant Joshua with him. There he entered into a second marriage, which also
ended in divorce. [489 U.S. 189, 192]

The Winnebago County authorities first learned that Joshua DeShaney might be a victim of child abuse
in January 1982, when his father's second wife complained to the police, at the time of their divorce,
that he had previously "hit the boy causing marks and [was] a prime case for child abuse." App.
152-153. The Winnebago County Department of Social Services (DSS) interviewed the father, but he
denied the accusations, and DSS did not pursue them further. In January 1983, Joshua was admitted to
a local hospital with multiple bruises and abrasions. The examining physician suspected child abuse and
notified DSS, which immediately obtained an order from a Wisconsin juvenile court placing Joshua in
the temporary custody of the hospital. Three days later, the county convened an ad hoc "Child
Protection Team" - consisting of a pediatrician, a psychologist, a police detective, the county's lawyer,
several DSS case-workers, and various hospital personnel - to consider Joshua's situation. At this
meeting, the Team decided that there was insufficient evidence of child abuse to retain Joshua in the
custody of the court. The Team did, however, decide to recommend several measures to protect
Joshua, including enrolling him in a preschool program, providing his father with certain counselling
services, and encouraging his father's girlfriend to move out of the home. Randy DeShaney entered into
a voluntary agreement with DSS in which he promised to cooperate with them in accomplishing these
goals.

Based on the recommendation of the Child Protection Team, the juvenile court dismissed the child
protection case and returned Joshua to the custody of his father. A month later, emergency room
personnel called the DSS caseworker handling Joshua's case to report that he had once again been
treated for suspicious injuries. The caseworker concluded that there was no basis for action. For the
next six months, the caseworker made monthly visits to the DeShaney home, during which she
observed a number of suspicious injuries on [489 U.S. 189, 193] Joshua's head; she also noticed that he
had not been enrolled in school, and that the girlfriend had not moved out. The caseworker dutifully
recorded these incidents in her files, along with her continuing suspicions that someone in the DeShaney
household was physically abusing Joshua, but she did nothing more. In November 1983, the emergency
room notified DSS that Joshua had been treated once again for injuries that they believed to be caused
by child abuse. On the caseworker's next two visits to the DeShaney home, she was told that Joshua
was too ill to see her. Still DSS took no action.

In March 1984, Randy DeShaney beat 4-year-old Joshua so severely that he fell into a life-threatening
coma. Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the
head inflicted over a long period of time. Joshua did not die, but he suffered brain damage so severe
that he is expected to spend the rest of his life confined to an institution for the profoundly retarded.
Randy DeShaney was subsequently tried and convicted of child abuse.

Joshua and his mother brought this action under 42 U.S.C. 1983 in the United States District Court for
the Eastern District of Wisconsin against respondents Winnebago County, DSS, and various individual
employees of DSS. The complaint alleged that respondents had deprived Joshua of his liberty without
due process of law, in violation of his rights under the Fourteenth Amendment, by failing to intervene to
protect him against a risk of violence at his father's hands of which they knew or should have known.
The District Court granted summary judgment for respondents.

The Court of Appeals for the Seventh Circuit affirmed, 812 F.2d 298 (1987), holding that petitioners had
not made out an actionable 1983 claim for two alternative reasons. First, the court held that the Due
Process Clause of the Fourteenth Amendment does not require a state or local governmental entity to
protect its citizens from "private violence, or other [489 U.S. 189, 194] mishaps not attributable to the
conduct of its employees." Id., at 301. In so holding, the court specifically rejected the position endorsed
by a divided panel of the Third Circuit in Estate of Bailey by Oare v. County of York, 768 F.2d 503,
510-511 (1985), and by dicta in Jensen v. Conrad, 747 F.2d 185, 190-194 (CA4 1984), cert. denied, 470
U.S. 1052 (1985), that once the State learns that a particular child is in danger of abuse from third
parties and actually undertakes to protect him from that danger, a "special relationship" arises between
it and the child which imposes an affirmative constitutional duty to provide adequate protection. 812
F.2d, at 303-304. Second, the court held, in reliance on our decision in Martinez v. California, 444 U.S.
277, 285 (1980), that the casual connection between respondents' conduct and Joshua's injuries was too
attenuated to establish a deprivation of constitutional rights actionable under 1983. 812 F.2d, at 301-303.
The court therefore found it unnecessary to reach the question whether respondents' conduct evinced
the "state of mind" necessary to make out a due process claim after Daniels v. Williams, 474 U.S. 327
(1986), and Davidson v. Cannon, 474 U.S. 344 (1986). 812 F.2d, at 302.

Because of the inconsistent approaches taken by the lower courts in determining when, if ever, the
failure of a state or local governmental entity or its agents to provide an individual with adequate
protective services constitutes a violation of the individual's due process rights, see Archie v. Racine,
847 F.2d 1211, 1220-1223, and n. 10 (CA7 1988) (en banc) (collecting cases), cert. pending, No.
88-576, and the importance of the issue to the administration of state and local governments, we
granted certiorari. 485 U.S. 958 (1988). We now affirm.

II

The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of law." Petitioners [489 U.S. 189, 195] contend
that the State1 deprived Joshua of his liberty interest in "free[dom] from . . . unjustified intrusions on
personal security," see Ingraham v. Wright, 430 U.S. 651, 673 (1977), by failing to provide him with
adequate protection against his father's violence. The claim is one invoking the substantive rather than
the procedural component of the Due Process Clause; petitioners do not claim that the State denied
Joshua protection without according him appropriate procedural safeguards, see Morrissey v. Brewer,
408 U.S. 471, 481 (1972), but that it was categorically obligated to protect him in these circumstances,
see Youngberg v. Romeo, 457 U.S. 307, 309 (1982).2

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. [489 U.S. 189, 196] Like its counterpart in the Fifth
Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent
government "from abusing [its] power, or employing it as an instrument of oppression," Davidson v.
Cannon, supra, at 348; see also Daniels v. Williams, supra, at 331 ("`"to secure the individual from the
arbitrary exercise of the powers of government,"'" and "to prevent governmental power from being
`used for purposes of oppression'") (internal citations omitted); Parratt v. Taylor, 451 U.S. 527, 549
(1981) (Powell, J., concurring in result) (to prevent the "affirmative abuse of power"). Its purpose was
to protect the people from the State, not to ensure that the State protected them from each other. The
Framers were content to leave the extent of governmental obligation in the latter area to the democratic
political processes.

Consistent with these principles, our cases have recognized that the Due Process Clauses generally
confer no affirmative right to governmental aid, even where such aid may be necessary to secure life,
liberty, or property interests of which the government itself may not deprive the individual. See, e. g.,
Harris v. McRae, 448 U.S. 297, 317-318 (1980) (no obligation to fund abortions or other medical
services) (discussing Due Process Clause of Fifth Amendment); Lindsey v. Normet, 405 U.S. 56, 74
(1972) (no obligation to provide adequate housing) (discussing Due Process Clause of Fourteenth
Amendment); see also Youngberg v. Romeo, supra, at 317 ("As a general matter, a State is under no
constitutional duty to provide substantive services for those within its border"). As we said in Harris v.
McRae: "Although the liberty protected by the Due Process Clause affords protection against
unwarranted government interference . . ., it does not confer an entitlement to such [governmental aid]
as may be necessary to realize all the advantages of that freedom." 448 U.S., at 317-318 (emphasis
added). If the Due Process Clause does not require the State to provide its citizens with particular
protective services, it follows that the State cannot [489 U.S. 189, 197] be held liable under the Clause
for injuries that could have been averted had it chosen to provide them.3 As a general matter, then, we
conclude that a State's failure to protect an individual against private violence simply does not constitute
a violation of the Due Process Clause.

Petitioners contend, however, that even if the Due Process Clause imposes no affirmative obligation on
the State to provide the general public with adequate protective services, such a duty may arise out of
certain "special relationships" created or assumed by the State with respect to particular individuals.
Brief for Petitioners 13-18. Petitioners argue that such a "special relationship" existed here because the
State knew that Joshua faced a special danger of abuse at his father's hands, and specifically
proclaimed, by word and by deed, its intention to protect him against that danger. Id., at 18-20. Having
actually undertaken to protect Joshua from this danger - which petitioners concede the State played no
part in creating - the State acquired an affirmative "duty," enforceable through the Due Process Clause,
to do so in a reasonably competent fashion. Its failure to discharge that duty, so the argument goes, was
an abuse of governmental power that so "shocks the conscience," Rochin v. California, 342 U.S. 165,
172 (1952), as to constitute a substantive due process violation. Brief for Petitioners 20.4 [489 U.S. 189,
198]

We reject this argument. It is true that in certain limited circumstances the Constitution imposes upon
the State affirmative duties of care and protection with respect to particular individuals. In Estelle v.
Gamble, 429 U.S. 97 (1976), we recognized that the Eighth Amendment's prohibition against cruel and
unusual punishment, made applicable to the States through the Fourteenth Amendment's Due Process
Clause, Robinson v. California, 370 U.S. 660 (1962), requires the State to provide adequate medical
care to incarcerated prisoners. 429 U.S., at 103-104.5 We reasoned [489 U.S. 189, 199] that because
the prisoner is unable "`by reason of the deprivation of his liberty [to] care for himself,'" it is only "`just'"
that the State be required to care for him. Ibid., quoting Spicer v. Williamson, 191 N.C. 487, 490, 132 S.
E. 291, 293 (1926).

In Youngberg v. Romeo, 457 U.S. 307 (1982), we extended this analysis beyond the Eighth
Amendment setting,6 holding that the substantive component of the Fourteenth Amendment's Due
Process Clause requires the State to provide involuntarily committed mental patients with such services
as are necessary to ensure their "reasonable safety" from themselves and others. Id., at 314-325; see
id., at 315, 324 (dicta indicating that the State is also obligated to provide such individuals with "adequate
food, shelter, clothing, and medical care"). As we explained: "If it is cruel and unusual punishment to
hold convicted criminals in unsafe conditions, it must be unconstitutional [under the Due Process
Clause] to confine the involuntarily committed - who may not be punished at all - in unsafe conditions."
Id., at 315-316; see also Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983) (holding
that the Due Process Clause requires the responsible government or governmental agency to provide
medical care to suspects in police custody who have been injured while being apprehended by the
police).

But these cases afford petitioners no help. Taken together, they stand only for the proposition that when
the State takes a person into its custody and holds him there [489 U.S. 189, 200] against his will, the
Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and
general well-being. See Youngberg v. Romeo, supra, at 317 ("When a person is institutionalized - and
wholly dependent on the State[,] . . . a duty to provide certain services and care does exist").7 The
rationale for this principle is simple enough: when the State by the affirmative exercise of its power so
restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails
to provide for his basic human needs - e. g., food, clothing, shelter, medical care, and reasonable safety
- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due
Process Clause. See Estelle v. Gamble, supra, at 103-104; Youngberg v. Romeo, supra, at 315-316.
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 limitation which it has imposed on his freedom to
act on his own behalf. See Estelle v. Gamble, supra, at 103 ("An inmate must rely on prison authorities
to treat his medical needs; if the authorities fail to do so, those needs will not be met"). In the
substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom
to act on his own behalf - through incarceration, institutionalization, or other similar restraint of personal
liberty - which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its
failure to act to protect his liberty interests against harms inflicted by other means.8 [489 U.S. 189, 201]

The Estelle-Youngberg analysis simply has no applicability in the present case. Petitioners concede that
the harms Joshua suffered occurred not while he was in the State's custody, but while he was in the
custody of his natural father, who was in no sense a state actor.9 While the State may have been
aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do
anything to render him any more vulnerable to them. That the State once took temporary custody of
Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no
worse position than that in which he would have been had it not acted at all; the State does not become
the permanent guarantor of an individual's safety by having once offered him shelter. Under these
circumstances, the State had no constitutional duty to protect Joshua.

It may well be that, by voluntarily undertaking to protect Joshua against a danger it concededly played
no part in creating, the State acquired a duty under state tort law to provide [489 U.S. 189, 202] him
with adequate protection against that danger. See Restatement (Second) of Torts 323 (1965) (one who
undertakes to render services to another may in some circumstances be held liable for doing so in a
negligent fashion); see generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton
on the Law of Torts 56 (5th ed. 1984) (discussing "special relationships" which may give rise to
affirmative duties to act under the common law of tort). But the claim here is based on the Due
Process Clause of the Fourteenth Amendment, which, as we have said many times, does not transform
every tort committed by a state actor into a constitutional violation. See Daniels v. Williams, 474 U.S.,
at 335-336; Parratt v. Taylor, 451 U.S., at 544; Martinez v. California, 444 U.S. 277, 285 (1980); Baker
v. McCollan, 443 U.S. 137, 146 (1979); Paul v. Davis, 424 U.S. 693, 701 (1976). A State may, through
its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it
wishes. But not "all common-law duties owed by government actors were . . . constitutionalized by the
Fourteenth Amendment." Daniels v. Williams, supra, at 335. Because, as explained above, the State
had no constitutional duty to protect Joshua against his father's violence, its failure to do so - though
calamitous in hindsight - simply does not constitute a violation of the Due Process Clause.10

Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way
for Joshua and his mother to receive adequate compensation for the grievous [489 U.S. 189, 203] harm
inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm
was inflicted not by the State of Wisconsin, but by Joshua's father. The most that can be said of the
state functionaries in this case is that they stood by and did nothing when suspicious circumstances
dictated a more active role for them. In defense of them it must also be said that had they moved too
soon to take custody of the son away from the father, they would likely have been met with charges of
improperly intruding into the parent-child relationship, charges based on the same Due Process Clause
that forms the basis for the present charge of failure to provide adequate protection.

The people of Wisconsin may well prefer a system of liability which would place upon the State and its
officials the responsibility for failure to act in situations such as the present one. They may create such
a system, if they do not have it already, by changing the tort law of the State in accordance with the
regular lawmaking process. But they should not have it thrust upon them by this Court's expansion of
the Due Process Clause of the Fourteenth Amendment.

Affirmed.

Footnotes

[Footnote 1] As used here, the term "State" refers generically to state and local governmental entities
and their agents.

[Footnote 2] Petitioners also argue that the Wisconsin child protection statutes gave Joshua an
"entitlement" to receive protective services in accordance with the terms of the statute, an entitlement
which would enjoy due process protection against state deprivation under our decision in Board of
Regents of State Colleges v. Roth, 408 U.S. 564 (1972). Brief for Petitioners 24-29. But this argument
is made for the first time in petitioners' brief to this Court: it was not pleaded in the complaint, argued to
the Court of Appeals as a ground for reversing the District Court, or raised in the petition for certiorari.
We therefore decline to consider it here. See Youngberg v. Romeo, 457 U.S., at 316, n. 19; Dothard v.
Rawlinson, 433 U.S. 321, 323, n. 1 (1977); Duignan v. United States, 274 U.S. 195, 200 (1927); Old
Jordan Mining & Milling Co. v. Societe Anonyme des Mines, 164 U.S. 261, 264-265 (1896).

[Footnote 3] The State may not, of course, selectively deny its protective services to certain disfavored
minorities without violating the Equal Protection Clause. See Yick Wo v. Hopkins, 118 U.S. 356 (1886).
But no such argument has been made here.

[Footnote 4] The genesis of this notion appears to lie in a statement in our opinion in Martinez v.
California, 444 U.S. 277 (1980). In that case, we were asked to decide, inter alia, whether state
officials could be held liable under the Due Process Clause of the Fourteenth Amendment for the death
of a private citizen at the hands of a parolee. Rather than squarely confronting the question presented
here - whether the Due Process Clause imposed upon the State an affirmative duty to protect - we
affirmed the dismissal of the claim on the narrower ground that the causal connection between the state
officials' decision to release the parolee from prison and the murder [489 U.S. 189, 198] was too
attenuated to establish a "deprivation" of constitutional rights within the meaning of 1983. Id., at
284-285. But we went on to say:

"[T]he parole board was not aware that appellants' decedent, as distinguished from the public at large,
faced any special danger. We need not and do not decide that a parole officer could never be deemed
to `deprive' someone of life by action taken in connection with the release of a prisoner on parole. But
we do hold that at least under the particular circumstances of this parole decision, appellants' decedent's
death is too remote a consequence of the parole officers' action to hold them responsible under the
federal civil rights law." Id., at 285 (footnote omitted).

Several of the Courts of Appeals have read this language as implying that once the State learns that a
third party poses a special danger to an identified victim, and indicates its willingness to protect the
victim against that danger, a "special relationship" arises between State and victim, giving rise to an
affirmative duty, enforceable through the Due Process Clause, to render adequate protection. See
Estate of Bailey by Oare v. County of York, 768 F.2d 503, 510-511 (CA3 1985); Jensen v. Conrad, 747
F.2d 185, 190-194, and n. 11 (CA4 1984) (dicta), cert. denied, 470 U.S. 1052 (1985)); Balistreri v.
Pacifica Police Dept., 855 F.2d 1421, 1425-1426 (CA9 1988). But see, in addition to the opinion of the
Seventh Circuit below, Estate of Gilmore v. Buckley, 787 F.2d 714, 720-723 (CA1), cert. denied, 479
U.S. 882 (1986); Harpole v. Arkansas Dept. of Human Services, 820 F.2d 923, 926-927 (CA8 1987);
Wideman v. Shallowford Community Hospital Inc., 826 F.2d 1030, 1034-1037 (CA11 1987).

[Footnote 5] To make out an Eighth Amendment claim based on the failure to provide adequate medical
care, a prisoner must show that the state defendants exhibited "deliberate indifference" to his "serious"
medical needs; the mere negligent or inadvertent failure to provide adequate care is not enough. Estelle
v. Gamble, 429 U.S., at 105-106. In Whitley v. Albers, 475 U.S. 312 [489 U.S. 189, 199] (1986), we
suggested that a similar state of mind is required to make out a substantive due process claim in the
prison setting. Id., at 326-327.

[Footnote 6] The Eighth Amendment applies "only after the State has complied with the constitutional
guarantees traditionally associated with criminal prosecutions. . . . [T]he State does not acquire the
power to punish with which the Eighth Amendment is concerned until after it has secured a formal
adjudication of guilt in accordance with due process of law." Ingraham v. Wright, 430 U.S. 651,
671-672, n. 40 (1977); see also Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983);
Bell v. Wolfish, 441 U.S. 520, 535, n. 16 (1979).

[Footnote 7] Even in this situation, we have recognized that the State "has considerable discretion in
determining the nature and scope of its responsibilities." Youngberg v. Romeo, 457 U.S., at 317.

[Footnote 8] Of course, the protections of the Due Process Clause, both substantive and procedural,
may be triggered when the State, by the affirmative acts of its agents, subjects an involuntarily confined
individual to deprivations of liberty which are not among those generally authorized by his confinement.
See, e. g., Whitley v. Albers, supra, at 326-327 (shooting inmate); Youngberg v. Romeo, supra, at 316
(shackling involuntarily committed [489 U.S. 189, 201] mental patient); Hughes v. Rowe, 449 U.S. 5, 11
(1980) (removing inmate from general prison population and confining him to administrative
segregation); Vitek v. Jones, 445 U.S. 480, 491-494 (1980) (transferring inmate to mental health
facility).

[Footnote 9] Complaint  16, App. 6 ("At relevant times to and until March 8, 1984, [the date of the
final beating,] Joshua DeShaney was in the custody and control of Defendant Randy DeShaney"). Had
the State by the affirmative exercise of its power removed Joshua from free society and placed him in
a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration
or institutionalization to give rise to an affirmative duty to protect. Indeed, several Courts of Appeals
have held, by analogy to Estelle and Youngberg, that the State may be held liable under the Due
Process Clause for failing to protect children in foster homes from mistreatment at the hands of their
foster parents. See Doe v. New York City Dept. of Social Services, 649 F.2d 134, 141-142 (CA2
1981), after remand, 709 F.2d 782, cert. denied sub nom. Catholic Home Bureau v. Doe, 464 U.S. 864
(1983); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 794-797 (CA11 1987) (en banc), cert.
pending Ledbetter v. Taylor, No. 87-521. We express no view on the validity of this analogy, however,
as it is not before us in the present case.

[Footnote 10] Because we conclude that the Due Process Clause did not require the State to protect
Joshua from his father, we need not address respondents' alternative argument that the individual state
actors lacked the requisite "state of mind" to make out a due process violation. See Daniels v. Williams,
474 U.S., at 334, n. 3. Similarly, we have no occasion to consider whether the individual respondents
might be entitled to a qualified immunity defense, see Anderson v. Creighton, 483 U.S. 635 (1987), or
whether the allegations in the complaint are sufficient to support a 1983 claim against the county and
DSS under Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), and its progeny.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join,
dissenting.

"The most that can be said of the state functionaries in this case," the Court today concludes, "is that
they stood by and did nothing when suspicious circumstances dictated a more active role for them."
Ante this page. Because I believe that this description of respondents' conduct tells only part of the
story and that, accordingly, the Constitution itself "dictated a more active role" for respondents in the
circumstances presented here, I cannot agree that respondents had no constitutional duty to help Joshua
DeShaney.

It may well be, as the Court decides, ante, at 194-197, that the Due Process Clause as construed by our
prior cases creates no general right to basic governmental services. That, [489 U.S. 189, 204] however,
is not the question presented here; indeed, that question was not raised in the complaint, urged on
appeal, presented in the petition for certiorari, or addressed in the briefs on the merits. No one, in short,
has asked the Court to proclaim that, as a general matter, the Constitution safeguards positive as well
as negative liberties.

This is more than a quibble over dicta; it is a point about perspective, having substantive ramifications.
In a constitutional setting that distinguishes sharply between action and inaction, one's characterization
of the misconduct alleged under 1983 may effectively decide the case. Thus, by leading off with a
discussion (and rejection) of the idea that the Constitution imposes on the States an affirmative duty to
take basic care of their citizens, the Court foreshadows - perhaps even preordains - its conclusion that
no duty existed even on the specific facts before us. This initial discussion establishes the baseline from
which the Court assesses the DeShaneys' claim that, when a State has - "by word and by deed," ante,
at 197 - announced an intention to protect a certain class of citizens and has before it facts that would
trigger that protection under the applicable state law, the Constitution imposes upon the State an
affirmative duty of protection.

The Court's baseline is the absence of positive rights in the Constitution and a concomitant suspicion of
any claim that seems to depend on such rights. From this perspective, the DeShaneys' claim is first and
foremost about inaction (the failure, here, of respondents to take steps to protect Joshua), and only
tangentially about action (the establishment of a state program specifically designed to help children like
Joshua). And from this perspective, holding these Wisconsin officials liable - where the only difference
between this case and one involving a general claim to protective services is Wisconsin's establishment
and operation of a program to protect children - would seem to punish an effort that we should seek to
promote. [489 U.S. 189, 205]

I would begin from the opposite direction. I would focus first on the action that Wisconsin has taken
with respect to Joshua and children like him, rather than on the actions that the State failed to take.
Such a method is not new to this Court. Both Estelle v. Gamble, 429 U.S. 97 (1976), and Youngberg v.
Romeo, 457 U.S. 307 (1982), began by emphasizing that the States had confined J. W. Gamble to
prison and Nicholas Romeo to a psychiatric hospital. This initial action rendered these people helpless to
help themselves or to seek help from persons unconnected to the government. See Estelle, supra, at 104
("[I]t is but just that the public be required to care for the prisoner, who cannot by reason of the
deprivation of his liberty, care for himself"); Youngberg, supra, at 317 ("When a person is
institutionalized - and wholly dependent on the State - it is conceded by petitioners that a duty to provide
certain services and care does exist"). Cases from the lower courts also recognize that a State's actions
can be decisive in assessing the constitutional significance of subsequent inaction. For these purposes,
moreover, actual physical restraint is not the only state action that has been considered relevant. See, e.
g., White v. Rochford, 592 F.2d 381 (CA7 1979) (police officers violated due process when, after
arresting the guardian of three young children, they abandoned the children on a busy stretch of
highway at night).

Because of the Court's initial fixation on the general principle that the Constitution does not establish
positive rights, it is unable to appreciate our recognition in Estelle and Youngberg that this principle does
not hold true in all circumstances. Thus, in the Court's view, Youngberg can be explained (and
dismissed) in the following way: "In the substantive due process analysis, it is the State's affirmative act
of restraining the individual's freedom to act on his own behalf - through incarceration,
institutionalization, or other similar restraint of personal liberty - which is the `deprivation of liberty'
triggering the protections of the Due Process [489 U.S. 189, 206] Clause, not its failure to act to protect
his liberty interests against harms inflicted by other means." Ante, at 200. This restatement of
Youngberg's holding should come as a surprise when one recalls our explicit observation in that case
that Romeo did not challenge his commitment to the hospital, but instead "argue[d] that he ha[d] a
constitutionally protected liberty interest in safety, freedom of movement, and training within the
institution; and that petitioners infringed these rights by failing to provide constitutionally required
conditions of confinement." 457 U.S., at 315 (emphasis added). I do not mean to suggest that "the
State's affirmative act of restraining the individual's freedom to act on his own behalf," ante, at 200, was
irrelevant in Youngberg; rather, I emphasize that this conduct would have led to no injury, and
consequently no cause of action under 1983, unless the State then had failed to take steps to protect
Romeo from himself and from others. In addition, the Court's exclusive attention to state-imposed
restraints of "the individual's freedom to act on his own behalf," ante, at 200, suggests that it was the
State that rendered Romeo unable to care for himself, whereas in fact - with an I. Q. of between 8 and
10, and the mental capacity of an 18-month-old child, 457 U.S., at 309 - he had been quite incapable of
taking care of himself long before the State stepped into his life. Thus, the fact of hospitalization was
critical in Youngberg not because it rendered Romeo helpless to help himself, but because it separated
him from other sources of aid that, we held, the State was obligated to replace. Unlike the Court,
therefore, I am unable to see in Youngberg a neat and decisive divide between action and inaction.

Moreover, to the Court, the only fact that seems to count as an "affirmative act of restraining the
individual's freedom to act on his own behalf" is direct physical control. Ante, at 200 (listing only
"incarceration, institutionalization, [and] other similar restraint of personal liberty" in describing relevant
"affirmative acts"). I would not, however, give Youngberg [489 U.S. 189, 207] and Estelle such a stingy
scope. I would recognize, as the Court apparently cannot, that "the State's knowledge of [an]
individual's predicament [and] its expressions of intent to help him" can amount to a "limitation . . . on
his freedom to act on his own behalf" or to obtain help from others. Ante, at 200. Thus, I would read
Youngberg and Estelle to stand for the much more generous proposition that, if a State cuts off private
sources of aid and then refuses aid itself, it cannot wash its hands of the harm that results from its
inaction.

Youngberg and Estelle are not alone in sounding this theme. In striking down a filing fee as applied to
divorce cases brought by indigents, see Boddie v. Connecticut, 401 U.S. 371 (1971), and in deciding
that a local government could not entirely foreclose the opportunity to speak in a public forum, see, e.
g., Schneider v. State, 308 U.S. 147 (1939); Hague v. Committee for Industrial Organization, 307 U.S.
496 (1939); United States v. Grace, 461 U.S. 171 (1983), we have acknowledged that a State's actions
- such as the monopolization of a particular path of relief - may impose upon the State certain positive
duties. Similarly, Shelley v. Kraemer, 334 U.S. 1 (1948), and Burton v. Wilmington Parking Authority,
365 U.S. 715 (1961), suggest that a State may be found complicit in an injury even if it did not create
the situation that caused the harm.

Arising as they do from constitutional contexts different from the one involved here, cases like Boddie
and Burton are instructive rather than decisive in the case before us. But they set a tone equally well
established in precedent as, and contradictory to, the one the Court sets by situating the DeShaneys'
complaint within the class of cases epitomized by the Court's decision in Harris v. McRae, 448 U.S.
297 (1980). The cases that I have cited tell us that Goldberg v. Kelly, 397 U.S. 254 (1970) (recognizing
entitlement to welfare under state law), can stand side by side with Dandridge v. Williams, 397 U.S.
471, 484 (1970) (implicitly rejecting idea that welfare is a fundamental right), and that Goss v. [489 U.S.
189, 208] Lopez, 419 U.S. 565, 573 (1975) (entitlement to public education under state law), is perfectly
consistent with San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29-39 (1973) (no
fundamental right to education). To put the point more directly, these cases signal that a State's prior
actions may be decisive in analyzing the constitutional significance of its inaction. I thus would locate
the DeShaneys' claims within the framework of cases like Youngberg and Estelle, and more generally,
Boddie and Schneider, by considering the actions that Wisconsin took with respect to Joshua.

Wisconsin has established a child-welfare system specifically designed to help children like Joshua.
Wisconsin law places upon the local departments of social services such as respondent (DSS or
Department) a duty to investigate reported instances of child abuse. See Wis. Stat. 48.981(3)
(1987-1988). While other governmental bodies and private persons are largely responsible for the
reporting of possible cases of child abuse, see 48.981(2), Wisconsin law channels all such reports to the
local departments of social services for evaluation and, if necessary, further action. 48.981(3). Even
when it is the sheriff's office or police department that receives a report of suspected child abuse, that
report is referred to local social services departments for action, see 48.981(3)(a); the only exception to
this occurs when the reporter fears for the child's immediate safety. 48.981(3)(b). In this way,
Wisconsin law invites - indeed, directs - citizens and other governmental entities to depend on local
departments of social services such as respondent to protect children from abuse.

The specific facts before us bear out this view of Wisconsin's system of protecting children. Each time
someone voiced a suspicion that Joshua was being abused, that information was relayed to the
Department for investigation and possible action. When Randy DeShaney's second wife told the police
that he had "`hit the boy causing marks and [was] a prime case for child abuse,'" the police referred her
[489 U.S. 189, 209] complaint to DSS. Ante, at 192. When, on three separate occasions, emergency
room personnel noticed suspicious injuries on Joshua's body, they went to DSS with this information.
Ante, at 192-193. When neighbors informed the police that they had seen or heard Joshua's father or
his father's lover beating or otherwise abusing Joshua, the police brought these reports to the attention
of DSS. App. 144-145. And when respondent Kemmeter, through these reports and through her own
observations in the course of nearly 20 visits to the DeShaney home, id., at 104, compiled growing
evidence that Joshua was being abused, that information stayed within the Department - chronicled by
the social worker in detail that seems almost eerie in light of her failure to act upon it. (As to the extent
of the social worker's involvement in, and knowledge of, Joshua's predicament, her reaction to the news
of Joshua's last and most devastating injuries is illuminating: "`I just knew the phone would ring some
day and Joshua would be dead.'" 812 F.2d 298, 300 (CA7 1987).)

Even more telling than these examples is the Department's control over the decision whether to take
steps to protect a particular child from suspected abuse. While many different people contributed
information and advice to this decision, it was up to the people at DSS to make the ultimate decision
(subject to the approval of the local government's corporation counsel) whether to disturb the family's
current arrangements. App. 41, 58. When Joshua first appeared at a local hospital with injuries signaling
physical abuse, for example, it was DSS that made the decision to take him into temporary custody for
the purpose of studying his situation - and it was DSS, acting in conjunction with the corporation
counsel, that returned him to his father. Ante, at 192. Unfortunately for Joshua DeShaney, the buck
effectively stopped with the Department.

In these circumstances, a private citizen, or even a person working in a government agency other than
DSS, would doubtless feel that her job was done as soon as she had reported [489 U.S. 189, 210] her
suspicions of child abuse to DSS. Through its child-welfare program, in other words, the State of
Wisconsin has relieved ordinary citizens and governmental bodies other than the Department of any
sense of obligation to do anything more than report their suspicions of child abuse to DSS. If DSS
ignores or dismisses these suspicions, no one will step in to fill the gap. Wisconsin's child-protection
program thus effectively confined Joshua DeShaney within the walls of Randy DeShaney's violent
home until such time as DSS took action to remove him. Conceivably, then, children like Joshua are
made worse off by the existence of this program when the persons and entities charged with carrying it
out fail to do their jobs.

It simply belies reality, therefore, to contend that the State "stood by and did nothing" with respect to
Joshua. Ante, at 203. Through its child-protection program, the State actively intervened in Joshua's life
and, by virtue of this intervention, acquired ever more certain knowledge that Joshua was in grave
danger. These circumstances, in my view, plant this case solidly within the tradition of cases like
Youngberg and Estelle.

It will be meager comfort to Joshua and his mother to know that, if the State had "selectively den[ied]
its protective services" to them because they were "disfavored minorities," ante, at 197, n. 3, their 1983
suit might have stood on sturdier ground. Because of the posture of this case, we do not know why
respondents did not take steps to protect Joshua; the Court, however, tells us that their reason is
irrelevant so long as their inaction was not the product of invidious discrimination. Presumably, then, if
respondents decided not to help Joshua because his name began with a "J," or because he was born in
the spring, or because they did not care enough about him even to formulate an intent to discriminate
against him based on an arbitrary reason, respondents would not be liable to the DeShaneys because
they were not the ones who dealt the blows that destroyed Joshua's life. [489 U.S. 189, 211]

I do not suggest that such irrationality was at work in this case; I emphasize only that we do not know
whether or not it was. I would allow Joshua and his mother the opportunity to show that respondents'
failure to help him arose, not out of the sound exercise of professional judgment that we recognized in
Youngberg as sufficient to preclude liability, see 457 U.S., at 322-323, but from the kind of arbitrariness
that we have in the past condemned. See, e. g., Daniels v. Williams, 474 U.S. 327, 331 (1986) (purpose
of Due Process Clause was "to secure the individual from the arbitrary exercise of the powers of
government" (citations omitted)); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937) (to sustain
state action, the Court need only decide that it is not "arbitrary or capricious"); Euclid v. Ambler Realty
Co., 272 U.S. 365, 389 (1926) (state action invalid where it "passes the bounds of reason and assumes
the character of a merely arbitrary fiat," quoting Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192,
204 (1912)).

Youngberg's deference to a decisionmaker's professional judgment ensures that once a caseworker has
decided, on the basis of her professional training and experience, that one course of protection is
preferable for a given child, or even that no special protection is required, she will not be found liable for
the harm that follows. (In this way, Youngberg's vision of substantive due process serves a purpose
similar to that served by adherence to procedural norms, namely, requiring that a state actor stop and
think before she acts in a way that may lead to a loss of liberty.) Moreover, that the Due Process
Clause is not violated by merely negligent conduct, see Daniels, supra, and Davidson v. Cannon, 474
U.S. 344 (1986), means that a social worker who simply makes a mistake of judgment under what are
admittedly complex and difficult conditions will not find herself liable in damages under 1983.

As the Court today reminds us, "the Due Process Clause of the Fourteenth Amendment was intended
to prevent government [489 U.S. 189, 212] `from abusing [its] power, or employing it as an instrument
of oppression.'" Ante, at 196, quoting Davidson, supra, U.S., at 348. My disagreement with the Court
arises from its failure to see that inaction can be every bit as abusive of power as action, that
oppression can result when a State undertakes a vital duty and then ignores it. Today's opinion
construes the Due Process Clause to permit a State to displace private sources of protection and then,
at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to
prevent. Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully
dissent.

JUSTICE BLACKMUN, dissenting.

Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy."
Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it
from recognizing either the facts of the case before it or the legal norms that should apply to those
facts. As JUSTICE BRENNAN demonstrates, the facts here involve not mere passivity, but active
state intervention in the life of Joshua DeShaney - intervention that triggered a fundamental duty to aid
the boy once the State learned of the severe danger to which he was exposed.

The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action
and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring
Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in
part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late
Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975).

Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today
claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the
question presented by this case [489 U.S. 189, 213] is an open one, and our Fourteenth Amendment
precedents may be read more broadly or narrowly depending upon how one chooses to read them.
Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of
fundamental justice and recognizes that compassion need not be exiled from the province of judging.
Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but
doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite
sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will
struggle, and our compassion may be our only guide and comfort").

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father,
and abandoned by respondents who placed him in a dangerous predicament and who knew or learned
what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at
193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and
constitutional principles - so full of late of patriotic fervor and proud proclamations about "liberty and
justice for all" - that this child, Joshua DeShaney, now is assigned to live out the remainder of his life
profoundly retarded. Joshua and his mother, as petitioners here, deserve - but now are denied by this
Court - the opportunity to have the facts of their case considered in the light of the constitutional
protection that 42 U.S.C. 1983 is meant to provide. [489 U.S. 189, 214]
**********************************
This is not legal advice;hopefully wisdom

To put it in simple terms…when the authorities ARE the perpetrators and the perpetrators ARE the authorities, there is no earthly justice or recourse, at the end of the day (unless the American people wake up).

Therefore, those who have achieved the highest levels of power seek to ‘enjoy’ the most grievous and extreme injustices. For many of those in the highest circles of power, the greatest statement of power is to perpetrate the greatest possible injustice…the savage, brutal traumatization and abuse of an innocent child.
http://themurkynews.blogspot.com/ MattTwoFour

"Ultimately, the law is only as good as the judge" --- D.X. Yue, 2005, in "law, reason and judicial fraud"
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