The Government’s Duty to Protect the Lives of its Citizens under the Due Process Clause
The Issue: In what situations does the Constitution demand that a government protect the lives of its citizens from bad private actors?
The Supreme Court has generally declined to find that the Constitution imposes affirmative obligations on the government to help citizens. For example, the Court has rejected claims that the Constitution obligates the government to provide welfare benefits, housing, or a public education. Instead, the Court has viewed the Constitution as restraining government from depriving persons the right to pursue various liberties, such as freedom of speech or a life free from unreasonable searches or cruel punishments.
This principle, it turns out, applies even to something so basic as human lives. Clearly, the Fourteenth Amendment prohibits the government itself from taking lives or liberty, except in a manner consistent with due process, and the Fourth Amendment specifically prohibits the government from unreasonably seizing persons. When it comes, however, to a government duty to protect persons from bad private actors, the Court has been reluctant to find one–even when reasonable government actors could easily have saved lives or prevented serious bodily harm.
On June 27, 2005, the Supreme Court ruled that the police did not have a constitutional duty to protect a person from harm, even a woman who had obtained a court-issued protective order against a violent husband making an arrest mandatory for a violation.
The decision, with an opinion by Justice Antonin Scalia and dissents from Justices John Paul Stevens and Ruth Bader Ginsburg, overturned a ruling by a federal appeals court in Colorado. The appeals court had permitted a lawsuit to proceed against a Colorado town, Castle Rock, for the failure of the police to respond to a woman’s pleas for help after her estranged husband violated a protective order by kidnapping their three young daughters, whom he eventually killed.
For hours on the night of June 22, 1999, Jessica Gonzales tried to get the Castle Rock police to find and arrest her estranged husband, Simon Gonzales, who was under a court order to stay 100 yards away from the house. He had taken the children, ages 7, 9 and 10, as they played outside, and he later called his wife to tell her that he had the girls at an amusement park in Denver.
Ms. Gonzales conveyed the information to the police, but they failed to act before Mr. Gonzales arrived at the police station hours later, firing a gun, with the bodies of the girls in the back of his truck. The police killed him at the scene.
The theory of the lawsuit Ms. Gonzales filed in federal district court in Denver was that Colorado law had given her an enforceable right to protection by instructing the police, on the court order, that “you shall arrest” or issue a warrant for the arrest of a violator. She argued that the order gave her a “property interest” within the meaning of the 14th Amendment’s due process guarantee, which prohibits the deprivation of property without due process.
The district court and a panel of the United States Court of Appeals for the 10th Circuit dismissed the suit, but the full appeals court reinstated it and the town appealed. The Supreme Court’s precedents made the appellate ruling a challenging one for Ms. Gonzales and her lawyers to sustain.
A 1989 decision, DeShaney v. Winnebago County, held that the failure by county social service workers to protect a young boy from a beating by his father did not breach any substantive constitutional duty. By framing her case as one of process rather than substance, Ms. Gonzales and her lawyers hoped to find a way around that precedent.
Jessica Gonzales sued Castle Rock, alleging that the restraining order created a claim of entitlement to protective services under the Due Process Clause, a right which the city violated by failing to follow up on her calls.
The failure of Castle Rock police to respond did violate Jessica’s right to fair procedures, and should have constituted a due process violation.
But the majority saw little difference between the earlier case and this one, Castle Rock v. Gonzales, No. 04-278. Ms. Gonzales did not have a “property interest” in enforcing the restraining order, Justice Scalia said, adding that “such a right would not, of course, resemble any traditional conception of property.”
Although the protective order did mandate an arrest, or an arrest warrant, in so many words, Justice Scalia said, “a well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes.”
But Justices Stevens and Ginsburg, in their dissenting opinion, said “it is clear that the elimination of police discretion was integral to Colorado and its fellow states’ solution to the problem of under-enforcement in domestic violence cases.” Colorado was one of two dozen states that, in response to increased attention to the problem of domestic violence during the 1990’s, made arrest mandatory for violating protective orders.
“The court fails to come to terms with the wave of domestic violence statutes that provides the crucial context for understanding Colorado’s law,” the dissenting justices said.
Organizations concerned with domestic violence had watched the case closely and expressed disappointment at the outcome. Fernando LaGuarda, counsel for the National Network to End Domestic Violence, said in a statement that Congress and the states should now act to give greater protection.
In another ruling, the court rebuked the United States Court of Appeals for the Sixth Circuit, in Cincinnati, for having reopened a death penalty appeal, on the basis of newly discovered evidence, after the ruling had become final.
The 5-to-4 decision, Bell v. Thompson, No. 04-514, came in response to an appeal by the State of Tennessee after the Sixth Circuit removed a convicted murderer, Gregory Thompson, from the state’s death row.
After his conviction and the failure of his appeals in state court, Mr. Thompson, with new lawyers, had gone to federal district court seeking a writ of habeas corpus on the ground that his initial lawyers had been constitutionally inadequate. The new lawyers obtained a consultation with a psychologist, who diagnosed Mr. Thompson as schizophrenic.
But the psychologist’s report was not included in the file of the habeas corpus petition in district court, which denied the petition. It was not until the Sixth Circuit and then the Supreme Court had also denied his petition, making the case final, that the Sixth Circuit reopened the case, finding that the report was crucial evidence that should have been considered.
In overturning that ruling in an opinion by Justice Anthony M. Kennedy, the majority said the appeals court had abused its discretion in an “extraordinary departure from standard appellate procedures.” Chief Justice William H. Rehnquist and Justices Scalia, Clarence Thomas and Sandra Day O’Connor joined the opinion.
In a dissenting opinion, Justice Stephen G. Breyer said the majority had relied on rules to the exclusion of justice. Judges need a “degree of discretion, thereby providing oil for the rule-based gears,” he said. Justices Stevens, Ginsburg and David H. Souter joined the dissent.
Estate of Sinthasomphone v Milwaukee (1992) is a federal district court decision involving another tragic set of facts. On a night in 1991, Milwaukee police received a 911 call informing them that a naked and badly beaten young man (who turned out to be a 14-year-old Laotian named Konerak Sinthasomphone) was at a specific address and needed help. The police responded to the call, as did the fire department and paramedics. When the police arrived, Jeffrey Dahmer, was trying to reassert control over the boy while two private citizens were trying to prevent him from doing so. The police ordered the two citizens and the fire dept to leave.
These officers intentionally and deliberately refused to listen to the following specific information conveyed by Nichole Childress, Sandra Smith, and others:
that Sinthasomphone was a child; that he was trying to escape from Dahmer, that Dahmer had referred to Sinthasomphone by various names; that Dahmer was attempting to physically control Sinthasomphone; and that Sinthasomphone was drugged, hurt, naked, and had been sexually abused. The officers threatened to arrest Childress and Smith if they persisted in trying to help Sinthasomphone or to provide information.
But because those two women had called 911, there were records of conversations between the police officers, their dispatcher, and the women involved.
The police ultimately delivered Sinthasomphone into Dahmer’s custody, without obtaining consent from Sinthasomphone or his parents. The police concluded that Dahmer and Sinthasomphone were “adult homosexual partners” who, at least at that time, were staying together in Dahmer’s apartment. By returning young Sinthasomphone to Dahmer, the police prevented any potential rescue of Sinthasomphone.
The name Jeffrey Dahmerwas largely unknown at the time. Today, everyone knows the story of the 31-year-old chocolate factory worker, a killing machine who committed the most appalling string of homicides in this city’s history.
. Sinthasomphone became one of his seventeen victims, with his body dismembered and stuffed into Dahmer’s refrigerator.
Sinthasomphone’s family and estate sued, alleging Konerak’s constitutional rights were violated by Milwaukee police.
On March 5, 1992, decision that “having dissected these cases, the Sinthasomphone plaintiffs alleged that “the police officers failed to protect Konerak Sinthasomphone from Jeffrey Dahmer.”
The three police officers in this case were entitled to “Qualified immunity” unless their conduct violated Konerak Sinthasomphone’s clearly established constitutional rights.
“Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Specifically, it protects government officials from lawsuits alleging that they violated plaintiffs’ rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.
Another claim based on a violation of the equal protection clause would violate clearly established law: “the cases uniformly emphasize that if police action — or even police inaction is a product of intentional discrimination, it violates the Equal Protection Clause.”
The district court dismissed the city’s motion for summary judgment on the
equal protection claim, finding that although many facts are not in dispute, there is a dispute over the relevancy of certain facts and the proper inferences to be drawn from these facts.
That motion was a rule 12 motion to dismiss based on the inadequacy of the complaint.
In Archie v. City of Racine, 847 F.2d 1211 (7th Cir.1988), the court of appeals for this circuit upheld my dismissal of claims that a Racine Fire Department dispatcher had failed to send a rescue vehicle to a woman who later died. In Ellsworth v. City of Racine, 774 F.2d 182 (7th Cir.1985), cert. denied, 475 U.S. 1047, 106 S.Ct. 1265, 89 L.Ed.2d 574, the court of appeals upheld the dismissal of a claim that the Racine Police Department, after agreeing to provide protection to the wife of an undercover narcotics officer, failed to protect her from a beating by a masked assailant. Losinski v. County of Trempealeau, 946 F.2d 544 (7th Cir.1991), concerned a woman involved in an intense domestic violence situation who, accompanied by a deputy sheriff, returned to her estranged husband’s trailer to retrieve her belongings and was killed by him. The court of appeals upheld the dismissal of a lawsuit against the county that deputy, relying on two factors: the State did not create the danger and it did not subject her involuntarily to an existing danger.
A few cases reach a contrary result in situations in which there is little room to misunderstand what the results of one’s actions or inaction will be. In White v. Rochford, 592 F.2d 381 (7th Cir.1979), a pre-DeShaney case, the court of appeals for this circuit determined that Chicago police violated the Constitution when they left three children, unattended, in a car on the Chicago Skyway after arresting the adult who had been driving the car, in which the children were riding. After exposure to the cold, the children left the car, crossed eight lanes of freeway traffic, and wandered around on the roadway at night searching for a telephone.
In Ross v. United States, 910 F.2d 1422 (7th Cir.1990), a 12-year-old boy slipped into the water of Lake Michigan. A friend summoned help, and within 10 minutes two life-guards, two fire fighters, one police officer, and two civilians, who were scuba-diving nearby, responded. However, before any rescue attempt could begin, a Lake County deputy sheriff arrived in a marine patrol boat. He insisted on enforcing an agreement between the city of Waukegan, Illinois, and Lake County, Illinois, which required the county to provide all police services on Lake Michigan. Pursuant to that agreement, the sheriff had promulgated a policy that directed all members of the sheriff’s department to prevent any civilian from attempting to rescue a drowning person and contemplated that only divers from the city of Waukegan Fire Department could perform rescues. The deputy ordered all rescue attempts to stop. When the civilian scuba divers offered to attempt a rescue at their own risk, the deputy threatened to arrest them. Twenty minutes later, 30 minutes after the first would-be rescuers had arrived, the officially authorized divers pulled the boy from the water. He later died. The court found that the complaint stated a claim against both Lake County and the individual deputy.
Horton v. Flenory, 889 F.2d 454 (3rd Cir. 1989), should now be added to the mix. Defendant Flenory was a former police officer and the owner of a private club. When his club was burglarized, he called a police officer with whom he had formerly served. Before the officer arrived, Flenory interrogated a former employee named Powdrill, whom he suspected to be the burglar, and Powdrill suffered a beating. After he arrived, the police officer did some investigation, but ultimately left Powdrill in the “good hands” of defendant Flenory. Powdrill then suffered another beating and died.
The police officer, in leaving Powdrill with Flenory, was acting under an official policy of the police department. The policy was to maintain a hands-off policy with respect to events transpiring in private clubs.
The court determined that DeShaney is “limited … to situations in which the state is not involved in the harm, either as a custodian or as an actor.” The court goes on to find that the defendants in that case were entitled to judgment notwithstanding the verdict “only if Mr. Powdrill’s death occurred at a time when he was entirely outside state custody and only if that death was not the result of an official policy.” At 458. The court found that Powdrill was in the custody of defendant Flenory, who was exercising a “delegated state function.”
Reed v. Gardner, 986 F.2d 1122, 1127 (7th Cir.1993), involved an intoxicated person whom a patrolman had allowed to have possession of a car and the car keys. Two hours later, that person slammed head on into another car, killing one of the passengers and injuring several others. Reversing a dismissal at the pleading stage, the court stated that “[s]ome dangers are so evident, while their victims are so random, that the state actors can be held accountable by any injured party.” (Emphasis added.) The court focused on the nature of the danger: is the danger sufficiently evident that a reasonable officer should be held accountable to have understood it.
The danger in Ross was undeniably evident: anyone has to know the inevitable result of leaving someone under water for 30 minutes. On the other hand, one does not inevitably know that getting a naked person off the streets, taking him to an apartment where his clothes and near-naked pictures of him are present, and leaving him there with a person who convincingly presents himself as a friend will result in death and dismemberment.