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Must the Government Protect Its Citizens If It Learns They Are in Danger? The Supreme Court Considers How Far Responsibility Reaches

Tuesday, Mar. 29, 2005

On March 21, the U.S. Supreme Court heard oral argument in Gonzales v. City of Castle Rock. The case asks a question of grave importance: Is there a constitutional remedy when state police officers or social service workers fail to protect children (and others) who they have strong reason to believe are in danger?

In posing this question, the Gonzales case tests the limits of a bedrock principle of constitutional law called the "state action" requirement.

Put simply, the "state action" requirement means that only the government - or persons acting as agents of the government - can violate the U.S. Constitution. Private citizens acting on their own may be violating a number of other laws, but they are not violating the U.S. Constitution.

So if your neighbor tries to claim that part of your yard is his, you can't say he's violated the Takings Clause. If your sibling hits you, you can't claim it's "cruel and unusual punishment" violating the Eighth Amendment. And if your spouse tells you to be quiet and let her watch television, your First Amendment rights remain intact.

Fair enough. But the issue gets much more complicated if the government learns of harms done by private citizens, yet fails to intervene. Can its inaction, under such circumstances, sometimes count as a kind of "state action" - perhaps on the theory that deciding to do nothing, when there are strong grounds to act, can itself be a decision?

Certainly, we put moral blame on a government that fails to intervene when its citizens - and, especially, children - are in peril. Beyond being immoral, is such government inaction unconstitutional as well?

That is what the Gonzales case asks the Court to decide.

DeShaney: The Key Precedent Governing the Gonzales Case

Before considering the Gonzales case itself, however, it's necessary to look at the precedent that is at the center of it: the Supreme Court's 1989 ruling in the case of DeShaney v. Winnebago Cty. Soc. Servs. Dpt. To rule in favor of Ms. Gonzales, the Court would have to overrule - or, at least, dramatically limit - the legal rules it laid down in DeShaney.

Here are the facts of DeShaney: Ten-year-old Joshua DeShaney lived with his father, who beat him brutally. The local Department of Social Services (DSS) in Winnebago County, Wisconsin, where Joshua lived, had received a number of complaints about the beatings, beginning when Joshua was only three years old. Over the years, Joshua was hospitalized several times with bruises and abrasions, and his case worker noticed other suspicious injuries.

Yet DSS did not remove Joshua from his father's custody. And ultimately, Joshua's father beat him so badly that he went into a coma, and as a result, suffered permanent brain damage and was institutionalized.

Justice Blackmun was so moved by these facts that he wrote an emotional dissent: "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 … 'dutifully recorded these incidents in [their] files.' (Citation omitted.)

Joshua's mother brought a suit on his and her behalf, invoking a federal statute known as Section 1983. This statute allows a citizen to bring a lawsuit - known as a "civil rights action" -- against government officials (unless they have immunity) or against municipalities when the citizen's rights have been violated under the U.S. Constitution or federal laws.

Joshua's mother argued that Joshua's constitutional rights - In particular, his Fourteenth Amendment rights -- had been violated by the DSS. Specifically, she alleged that when DSS failed to protect Joshua him from his father's abuse, DSS deprived Joshua of liberty without due process of law, contrary to the Fourteenth Amendment,.

The Supreme Court, however, held that there was no constitutional violation here because there was no "state action." The majority opinion pointed out that "nothing in the language of the [Fourteenth Amendment's] 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." In other words, while the Fourteenth Amendment limits a State from acting in certain circumstances, the Amendment does not require a State to take action even when virtually any reasonable observer would agree that it ought to do so.

The Court majority did concede that in certain limited circumstances the Constitution does require States to affirmatively protect individuals. But this is only the case, it said, when the State "so restrains an individual's liberty that it renders him unable to care for himself." In that event, the state takes on duties because of "the limitations it has imposed on [the individual's] freedom to act on his own behalf." (This exception, for example, would apply in the case of a mentally ill individual who had been civilly committed to a state institution; the state, by virtue of effectively imprisoning that individual, would take on a special duty toward him or her - a duty that could then give rise to a 1983 claim if the individual's constitutional rights were violated.)

In addition, the Court majority also pointed out that while the DSS knew of the dangers Joshua faced, "it played no part in their creation, nor did it do anything to render him any more vulnerable to them."

(Subsequently, lower federal courts have read this language to suggest that if a government does make a person more vulnerable to danger, then a Section 1983 suit may be proper. For instance, suppose - in a hypothetical case -- a police officer took away a woman's legally owned weapon despite knowing that she was being pursued by a crazed serial killer - and she was maimed as a result. If the woman's Second Amendment rights were thus violated (and that itself would be controversial), the fact that the officer had made her more vulnerable to danger might mean that she could file a Section 1983 suit against the state for damages.)

In DeShaney, Justice Brennan dissented - joined by Justices Marshall and Blackmun (who also, as noted above, wrote his own separate dissent). Brennan argued that while it is true that the Due Process Clause did not create a "basic right to government services," that was not the issue presented by the DeShaney case.

Instead, Brennan pointed out, that the State's prior actions meant that there was state action here: Wisconsin had decided to create, by statute, a child-welfare system, and thus had "direct[ed] citizens and other governmental entities to depend on [the DSS] to protect children from abuse."

He and the other dissenters thought that this state action - coupled with the later state inaction of failing to remove Joshua from his father's home - could count as "state action" for the Constitution's purposes. Thus, they concluded that Joshua and his mother should, indeed, have a Section 1983 claim.

But again, the majority disagreed. It held that there was no constitutional violation arising from the DSS's failure to heed repeated warnings to its own caseworkers that Joshua was in terrible danger.

The Allegations in the Gonzales Case

Unlike in the DeShaney case, the facts in the Gonzales case have not yet been adjudicated. Thus, the Supreme Court, at this stage, will simply be assessing whether the plaintiff's allegations - if proven -- state a constitutional claim.

In her complaint, Jessica Gonzales alleges that on June 22, 1999, her estranged husband - whom she was divorcing - abducted their three daughters, aged seven, nine and ten.

Ms. Gonzales says she called the Castle Rock, Colorado Police Department to ask them to enforce the temporary restraining order (TRO) that she had previously procured against her husband, and to return her children to her. But, she says, the police told her there was nothing they could do about the TRO.

Ms. Gonzales says she kept calling but, despite their promises to send an officer out to speak to her, police failed to ever do so. Nor did the police ever send an officer out to look for Mr. Gonzales and the girls, despite Ms. Gonzales's insistence that the girls were in danger. Finally, Ms. Gonzales went down to the police station herself - where an officer took down an incident report, but did nothing else.

When Mr. Gonzales arrived back in Castle Rock, he had the dead bodies of all three girls in the back of his car; he had murdered them earlier that night. (Mr. Gonzales died that night, too, in a shootout he initiated with police when he drove up to the station. The terrible irony of the case, according to Ms. Gonzales's complaint, is that although the police never came to Mr. Gonzales, he finally came to them.)

On behalf of herself and her deceased daughters, Ms. Gonzales - like Joshua DeShaney's mother before her - sued the government that had failed to heed warnings that her children were in danger. She too invoked Section 1983. And she too lost - but only in part.

The Tenth Circuit's Ruling: A Different Kind of Section 1983 Due Process Claim

The U.S. Court of Appeals for the Tenth Circuit, in its opinion in the case, rejected Ms. Gonzales's attempts to claim that her Section 1983 deprivation-of-liberty allegations fit into one of the exceptions in DeShaney. (She had argued, for instance, that the police had left her children more vulnerable than they otherwise would have been.)

But notably, the Court also accepted a different kind of Section 1983 claim that Ms. Gonzales brought. Because this type of claim was not brought in DeShaney, the Tenth Circuit reasoned, the DeShaney ruling did not preclude Ms. Gonzales from bringing it.

Here is the claim that survived - and that the Supreme Court will evaluate: Ms. Gonzales claims that not liberty, but property, was taken without due process. The property to which she refers is her and her children's "entitlement to receive protective services in accordance with the terms of state statutes."

Constitutional law has long held that property need not consist of land, personal property, or indeed, anything tangible. So Ms. Gonzales's claim that this entitlement counted as "property" for constitutional purposes is a plausible one. But does the statute indeed create an entitlement?

The Tenth Circuit thought so. It pointed out that the relevant Colorado statutes said that officers "shall use every reasonable means to enforce a restraining order." And it pointed out, in the Gonzales case, the officers not only failed to use "every reasonable means," they did not use any means at all to enforce the TRO. They did nothing.

Moreover, the Tenth Circuit also noted that the statutes said police "shall arrest, or, if an arrest would be impractical under the circumstances, seek a warrant for the arrest of a restrained person when the peace officer has information amounting to probable cause that . . . [t]he restrained person has violated or attempted to violate any provision of a restraining order."

Mr. Gonzales was a restrained person under the TRO, and according to her complaint, Ms. Gonzales gave the officers information amounting to probable cause. Yet the officers did nothing. Again, the court suggested, the statute's mandate was violated.

After the initial three-judge panel had made its decision, in an opinion written by Judge Stephanie Seymour, the Tenth Circuit decided to rehear the case "en banc" - that is, with a larger panel of the same circuit. Then, in a new opinion, also authored by Judge Seymour, the en banc court modified its opinion with respect to the individual police officer defendants, but held, once again, that the Section 1983 "property deprivation" claim against the City of Castle Rock, Colorado, could go forward.

Why the Supreme Court Is Likely to Reverse the Tenth Circuit's Holding

In my view, the Tenth Circuit's logic is persuasive: There should be a constitutional due process claim here. But the Supreme Court probably will not agree - for several reasons.

First, even if the DeShaney precedent is technically confined to Due Process claims that allege deprivations of liberty, the Court will probably see it as extending to Due Process claims that allege deprivations of property, as well. After all, it would be odd if property-deprivation claims could be broader than deprivation of liberty claims, since liberty is, generally speaking, so much more important than property. And the Court majority spoke in very broad language in DeShaney.

Second, and more importantly, the Court may fear a "floodgates" problem if it either overrules DeShaney, or effectively overrules it by allowing the kind of claims DeShaney rejected to be rephrased as deprivation-of-property claims.

Many, many harms can be traced to government inaction. And that inaction often occurs in the context of a statutory system that places mandatory obligations on government personnel - as was the case in Gonzales. If a constitutional case were to arise every time a state employee failed to follow a state statute, the federal courts would be packed.

A Way to Limit DeShaney, and Draw on the Romer Ruling

There is one way, however, that the Court might be able to partially overrule DeShaney, and yet not open the floodgates to literally thousands of Section 1983 suits in the coming years. It would be to overrule DeShaney as it applies to children alone.

DeShaney's libertarian logic - suggesting that private persons can usually take care of themselves, so the government isn't responsible when they get hurt - doesn't make sense when applied to minors.

In DeShaney, the Court wrote that there is no "guarantee of certain minimal levels of safety and security." Not even for children who - like Joshua DeShaney and the Gonzales girls - were ten years old or younger? What about historical common law concepts of "in loco parentis" - where the state or court, or a person other than the parents, acts for the child instead of the parents? Doesn't the state have any proper guardian role when custodial parents (or those with visitation rights, as in the case of Mr. Gonzales) become adversaries to their children, and state personnel are well aware of that fact?

The Court also wrote that the state does assume responsibility when it "so restrains an individual's liberty that it renders him unable to care for himself" - by, for example, institutionalizing the person. But children are always unable, by themselves, to care for themselves, so it is odd to apply this standard to them: The state need not render them unable to care for themselves; they already are. A child does not have to be institutionalized, for him to be helpless in the face of violence. Accordingly, the rule should not be that the state must institutionalize the child, before it takes on the obligation to help her.

This limited overruling might suit Justice Sandra Day O'Connor, who is an admirable protector of the rights of children in the cases that come before her. Although she did vote with the majority in DeShaney, she might be persuaded to reconsider in this limited class of cases. Justice O'Connor frequently makes clear her overriding concern for children both in her opinions, and at oral argument; though it did not convince her in DeShaney, it might cause her to rethink DeShaney now.

This limitation might also suit Justice Kennedy - who also joined the DeShaney majority, but who wrote the Court's recent opinion in Romer v. Evans. In Romer, the Court struck down a Colorado constitutional amendment on the ground that it effected the "disqualification of a class of persons" - there, homosexuals - "from the right to seek specific protection from the law."

Justice Kennedy's opinion suggests that he understands the special horror that occurs if one calls the police, and they fail to come. Without Section 1983 suits to motivate law enforcement to protect children who are threatened by their parents, these children are effectively placed outside the law's protection. Justice Kennedy found that unacceptable when it came to gay persons in Romer; perhaps he will, on reconsideration, also find it unacceptable when it comes to children, in Gonzales.

In the end, it's not just the heart that suggests that Joshua DeShaney and the Gonzales girls deserved better protection; reasoning counsels this, too. A libertarian society with a strong line between private and public may work perfectly well for adults, but it's a disaster for children - especially children in danger.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden also has experience in criminal motions and appeals. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes MP3 and text downloads of the novel's first chapter

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