Affirmative duties, systemic harms, and the Due Process Clause

Michigan Law Review

Volumn 94, Issue 4, 1996, Pages 982-1039

  Armacost, Barbara E ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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[No Author keywords available]

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EID: 0346562324     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1289804     Document Type: Article

References (269)

1. See Reiff v. City of Philadelphia, 471 F. Supp. 1262 (E.D. Pa. 1979).
2. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189 (1989).
3. See Hilliard v. City of Denver, 930 F.2d 1516 (10th Cir. 1991).
4. 489 U.S. 189 (1989).
5. 489 U.S. at 195.
6. Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983), cert. denied, 465 U.S. 1049 (1984).
7. Prisoners, pretrial detainees, and involuntarily committed psychiatric patients enjoy a right to be free from unreasonable risk of harm while in governmental custody. See Estelle v. Gamble, 429 U.S. 97 (1976) (holding that the Eighth Amendment requires the government to provide medical care to incarcerated prisoners); City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239 (1983) (holding that the Fourteenth Amendment requires the government to provide medical care to pretrial detainees); Youngberg v. Romeo, 457 U.S. 307 (1982) (holding that the Fourteenth Amendment requires the government to provide for the reasonable safety of involuntarily committed mental patients).
8. See, e.g., Akhil Reed Amar, Remember the Thirteenth, 10 CONST. COMMENTARY 403 (1993);
9. Susan Bandes, The Negative Constitution: A Critique, 88 MICH. L. REV. 2271 (1990);
10. Jack M. Beermann, Administrative Failure and Local Democracy: The Politics of DeShaney, 1990 DUKE L.J. 1078;
11. Theodore Y. Blumoff, Some Moral Implications of Finding No State Action, 70 NOTRE DAME L. REV. 95 (1994);
12. Thomas A. Eaton & Michael Wells, Governmental Inaction as a Constitutional Tort: DeShaney and Its Aftermath, 66 WASH. L. REV. 107 (1991);
13. Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 1991 DUKE L.J. 507;
14. Laura Oren, DeShaney's Unfinished Business: The Foster Child's Due Process Right to Safety, 69 N.C. L. REV. 113 (1990);
15. Laura Oren, The State's Failure to Protect Children and Substantive Due Process: DeShaney in Context, 68 N.C. L. REV. 659 (1990) [hereinafter Oren, DeShaney in Context];
16. Louis Michael Seidman, The State Action Paradox, 10 CONST. COMMENTARY 379 (1993);
17. Aviam Soifer, Moral Ambition, Formalism, and the "Free World" of DeShaney, 57 GEO. WASH. L. REV. 1513 (1989);
18. David A. Strauss, Due Process, Government Inaction, and Private Wrongs, 1989 SUP. CT. REV. 53;
19. Laurence H. Tribe, The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics, 103 HARV. L. REV. 1 (1989).
20. DeShaney, 489 U.S. at 191.
21. See 489 U.S. at 191-93, 208-09; see also infra notes 27-31 and accompanying text.
22. 489 U.S. at 203.
23. See 489 U.S. at 208-10 (Brennan, J., dissenting).
24. See supra note 7.
25. See DeShaney, 489 U.S. at 200-01.
26. See supra note 8. Indeed, I have not found a single article purporting to offer a positive rationale for nonliability.
27. By "failure to protect," for purposes of this article, I am referring to situations in which the immediate, physical cause of the injury was a nongovernmental actor or entity and the claim is that the government had a duty to prevent that injury. I understand that in many such instances governmental behavior could be described as either act or omission. The terminology is not important; the question in these cases is the extent of the government's obligation to take precautions against injuries by third parties.
28. By "governmental liability," I mean liability against states or localities or against state or local officers. In tort, the extent of governmental liability is determined by common law and statutory rules governing sovereign immunity. See infra notes 94-98 and accompanying text. In the constitutional context, 42 U.S.C. § 1983 (1988), which provides a cause of action for deprivations of constitutional rights, permits suits against municipalities for actions that execute a governmental "policy or custom," see Monell v. Department of Social Servs., 436 U.S. 658 (1978), as well as against local officials in their individual capacities. The Eleventh Amendment bars § 1983 suits for damages against states and state officers in their official capacities. Injunctive relief, however, may be obtained against state officials - and so as a practical matter against the state itself - through the "fiction" of suing state officials in their individual capacities. See Ex parte Young, 209 U.S. 123 (1908).
29. U.S. CONST. amend. XIV, § 1.
30. See Rochin v. California, 342 U.S. 165 (1952).
31. See Roe v. Wade, 410 U.S. 113 (1973).
32. The Supreme Court has held that there can be no deprivation within the meaning of the Due Process Clause if there are adequate state postdeprivation remedies. See Parratt v. Taylor, 451 U.S. 527 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986).
33. The Due Process Clause requires more than negligence, see Daniels, 474 U.S. at 327, but the Supreme Court has not opined on exactly what level of intent - between negligence and willfulness - is required to make out a claim. See 474 U.S. at 334 n.3. The courts of appeals are divided on the issue. See, e.g., Webber v. Mefford, 43 F.3d 1340 (10th Cir.) (recklessness); Fagan v. City of Vineland, 22 F.3d 1283 (3d Cir.), affd. on rehg., 22 F.3d 1296 (3d Cir. 1994) ("shock the conscience"); Temkin v. Frederick County Commr., 945 F.2d 716 (4th Cir. 1991) (same); Roach v. City of Fredericktown, 882 F.2d 294 (8th Cir. 1989) (same); Jones v. Sherrill, 827 F.2d 1102 (6th Cir. 1987) (gross negligence or recklessness).
34. See Parratt, 451 U.S. at 527. In Parratt, officials who lost a prisoner's hobby kit were found to have deprived him of property but not without "due process of law" because there were adequate state postdeprivation remedies. See 451 U.S. at 543-44.
35. See Hudson v. Palmer, 468 U.S. 517 (1984). The claim in Hudson, alleging intentional destruction of property, ultimately failed because adequate state postdeprivation remedies were available. See 468 U.S. at 533-36.
36. See Davidson v. Cannon, 474 U.S. 344 (1986). The Court denied the prisoner's claim in Davidson because he had not made a showing that prison officials were more than merely negligent. See 474 U.S. at 347-48; see also supra note 22.
37. See, e.g., Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985) (holding that plaintiff whose decedent was killed when police officers mistook him for a fugitive and recklessly shot into his truck could recover under Due Process Clause); Ragusa v. Streator Police Dept., 530 F. Supp. 814 (N.D. Ill. 1981) (holding that due process claim for intentional deprivation of property arising out of impoundment of plaintiff's truck by the police survived motion to dismiss).
38. DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 195 (1989) (quoting Ingraham v. Wright, 430 U.S. 651, 673 (1977)).
39. See 489 U.S. at 191-93.
40. See 489 U.S. at 192-93, 208-09. At one point when Joshua was admitted to a local hospital with multiple injuries, the examining physician notified the Winnebago Social Services Department that he suspected child abuse. The Department obtained a court order placing Joshua in the temporary custody of the hospital. The hospital convened a "Child Protection Team," consisting of physicians and other hospital personnel, social workers, police, and the county's lawyer, which ultimately determined that there was insufficient evidence of child abuse to retain custody of Joshua. The Child Protection Team, however, did recommend a number of measures to protect Joshua, and Joshua's father entered into a voluntary agreement to cooperate with the Team in accomplishing these goals. Based on the Team's recommendation, the juvenile court dismissed the child-protection case and returned Joshua to his father's custody, where the abuse apparently continued. See 489 U.S. at 192.
41. 489 U.S. at 193.
42. See 489 U.S. at 193.
43. See 489 U.S. at 195.
44. 489 U.S. at 195.
45. 489 U.S. at 196.
46. 489 U.S. at 200.
47. 489 U.S. at 200. The Court explicitly left open the possibility that government-ordered foster care might be sufficiently analogous to custody to give rise to a duty to protect. See 489 U.S. at 201 n.9.
48. See supra note 8 (citing articles).
49. See Eaton & Wells, supra note 8, at 128.
50. Ordinary citizens, of course, have no legally enforceable duty, except in narrow circumstances, to rescue their fellow citizens or protect them from threatened or impending harm. For articles critical of the no-liability rule for private rescuers, see, e.g., James Barr Ames, Law and Morals, 22 HARV. L. REV. 97 (1908);
51. Steven J. Heyman, Foundations of the Duty to Rescue, 47 VAND. L. REV. 673 (1994);
52. Jay Silver, The Duty to Rescue: A Reexamination and Proposal, 26 WM. & MARY L. REV. 423 (1985);
53. Daniel B. Yeager, A Radical Community of Aid: A Rejoinder to Opponents of Affirmative Duties to Help Strangers, 71 WASH. U. L.Q. 1 (1993);
54. see also Saul Levmore, Waiting for Rescue: An Essay on the Evolution and Incentive Structure of the Law of Affirmative Obligations, 72 VA. L. REV. 879 (1986).
55. See DeShaney, 489 U.S. at 200 ("[W]hen 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 . . . Due Process Clause."); City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239 (1983) (holding that the Fourteenth Amendment requires the government to provide medical care to pretrial detainees); Youngberg v. Romeo, 457 U.S. 307 (1982) (holding that the Fourteenth Amendment requires the government to provide for the reasonable safety of involuntarily committed mental patients).
56. David P. Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864, 886 (1986). See generally id. at 872-86; Eaton & Wells, supra note 8, at 122-23. Cases finding affirmative obligations in "negatively phrased provisions" include, for example: Richmond Newspapers v. Virginia, 448 U.S. 555, 579-80 (1980) (holding that the government must provide access to certain information); Cruz v. Beto, 405 U.S. 319 (1972) (holding that a prisoner must be provided reasonable opportunity to pursue his religion); and Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that the government must provide counsel to indigent defendants).
57. See Boddie v. Connecticut, 401 U.S. 371 (1971) (holding that a state may not deny, solely because of inability to pay, access to state-controlled divorce proceeding); Truax v. Corrigan, 257 U.S. 312 (1921) (holding that a state must provide a remedy against picketing by striking workers on employer's property).
58. 4 THE OXFORD ENGLISH DICTIONARY 490 (2d ed. 1989), quoted in Eaton & Wells, supra note 8, at 116 (alteration in original). For example, it seems perfectly natural to conclude, in the context of a schoolyard fight, that those who prevent a student's buddies from intervening to protect him from the school bully have "deprived" him of the opportunity to avoid a bloody nose.
59. See, e.g., Eaton & Wells, supra note 8, at 118-21; Heyman, supra note 8, at 546-54, 557-63, 566-70; Oren, DeShaney in Context, supra note 8, at 687-92; Seidman, supra note 8, at 382-83; Soifer, supra note 8, at 1521-26. But see Currie, supra note 41, at 865-66 ("The Framers would have been astounded to hear it contended that by adopting the Bill of Rights they had managed to make mandatory the exercise of a Congressional power to help needy citizens . . . .").
60. See Heyman, supra note 8, at 512.
61. Strauss, supra note 8, at 67.
62. Id.
63. Id.
64. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 205-11 (1989) (Brennan, J., dissenting).
65. See 489 U.S. at 208-11. An even broader temporal view would argue that the establishment of laws applicable to marriage and family, which by definition limit the possibilities of rescue from certain harms, is the starting point for analyzing governmental liability. See Strauss, supra note 8, at 64-65 (arguing that the state's role is not limited to the custody award to Joshua's father; the family unit itself is largely the product of state regulation).
66. See Beermann, supra note 8, at 1089; see also Bandes, supra note 8, at 2311 ("The welfare state, with its proliferation of government regulation and subsistence programs, little resembles the polity with which the Framers were familiar."); Tribe, supra note 8, at 9-14 (calling for "circumspection and questioning in assessing how the distribution and direction of all public powers - including those of judges - define the legal space through which we all move").
67. Beermann, supra note 8, at 1089.
68. Id. at 1096.
69. See id. David Strauss makes the similar point that governmental failure to act, like a negligently performed rescue, "may have worsened the victim's situation by causing the victim to forgo other sources of aid or by discouraging other potential rescuers from coming to the victim's aid." Strauss, supra note 8, at 62; see also DeShaney, 489 U.S. at 210 (Brennan, J., dissenting) ("Wisconsin's child-protection program . . . effectively confined Joshua DeShaney within the walls of Randy DeShaney's violent home until such time as DSS took action to remove him."); Oren, DeShaney in Context, supra note 8, at 695-97, 703-05 ("Having actively put the child in an isolated position and knowing of the specific danger that he faced, the state should not then escape all constitutional accountability."); Soifer, supra note 8, at 1518-20 ("The idea that the state did not worsen Joshua's situation by appearing to protect him, that it is absolved because it did not affirmatively erect an obstacle, is belied by the record.").
70. Beermann, supra note 8, at 1096. But see Seidman, supra note 8, at 386 (arguing that Justice Brennan's claim rests on "sheer speculation").
71. Jack Beermann appears to argue - astonishingly in my view - that the Due Process Clause should be understood to create a general duty to protect citizens from all civil harm of which governmental actors are aware. Beermann ultimately concedes that his argument taken to its logical stopping point "may even point toward unlimited government responsibility for all private misfortune and private misconduct - a plainly unacceptable result." Beermann, supra note 8, at 1089.
72. See Eaton & Wells, supra note 8. Although Eaton and Wells have chosen to craft their proposal to fit within the rationale of the DeShaney holding, in a world of their own creation, they apparently would support significantly broader liability. See id. at 166 ("The only firm rule laid down in DeShaney is that officials owe no duty to help a person unless the state played at least some part in creating a peril or in rendering the victim more vulnerable to it. . . . Hopefully, the Court will someday reconsider this rule in light of considerations of justice and the pervasive role of government in modern life.").
73. Id. at 144.
74. Id. at 147-49.
75. See id. at 149-55.
76. See id. at 155-58. Eaton and Wells suggest that these situations are ones that would comprise a common law "special relationship." See id. at 147. The tort-law special relationship giving rise to a duty to rescue by governmental officials is, however, significantly narrower than Eaton and Wells envision. See infra notes 83-90 and accompanying text.
77. See Eaton & Wells, supra note 8, at 159-65.
78. See id. at 159.
79. See Strauss, supra note 8, at 79-80. The underlying interest being deprived, according to Strauss, is the property interest in having governmental decisions made in a nonarbitrary and nonabusive way: the establishment of a governmental program "creates an interest, protected by the Due Process Clause, in a decision based on the government's agenda rather than the private agenda of the responsible official." Id. at 81.
80. Id. at 83-84.
81. See id. at 84.
82. Strauss concedes that his proposal threatens to turn a "variety of ordinary torts by state officials" into "federal constitutional claims." Id. at 84. He proposes to remedy that problem by: (1) requiring plaintiffs with procedural claims to look to adequate state remedies and (2) requiring "[m]any wrongs now viewed as violations of the Due Process Clause" - for example, "physical abuse by a state official . . . an unreasonable seizure of the person" - "[to be seen] as violations of more specific constitutional provisions." Id. at 84-85. It seems clear, however, that Strauss's proposal would substantially increase the scope of tortlike claims that could be litigated in federal court. Under current law, a plaintiff who alleges a tortlike substantive due process claim is precluded from bringing a federal claim if state remedies are available and adequate. See Parratt v. Taylor, 451 U.S. 527 (1981). Strauss's framework apparently would eliminate that requirement except where the claim is procedural. See Strauss, supra note 8, at 84-85. On Strauss's second point, it is unclear exactly what universe of due process claims could be litigated under more specific constitutional provisions if the current boundaries of those provisions were respected. For example, physical abuse by a state official would not be a seizure under the Fourth Amendment unless intentionally applied. See Brower v. County of Inyo, 489 U.S. 593 (1989). That means that anything less than "intentional" physical deprivation - which presumably is what interests Strauss - would continue to fall into a residual category of tortlike claims that could be litigated under the Due Process Clause.
83. Eaton and Wells recognize and briefly discuss the implications of "tort policy" in formulating their paradigm for analyzing failure-to-protect cases. See Eaton & Wells, supra note 8, at 110, 127-33, 142-43. However, they fail to appreciate the explanatory power of tort policies in accounting for the existing pattern of liability in this class of cases, and - perhaps for that reason - they do not take seriously enough the rationales behind the tort policies they identify. See also Beermann, supra note 8, at 1093 ("Because imposing positive duties on government raises questions about allocation of governmental resources, these problems may be somewhat less amenable to judicial resolution than other constitutional problems."); Michael Wells & Thomas A. Eaton, Affirmative Duty and Constitutional Tort, 16 U. MICH. J.L. REF. 1 (1982) (noting, in a pre-DeShaney analysis of failure-to-protect cases, that such cases are best viewed as a blend of constitutional and tort principles).
84. Section 1983 provides, in pertinent part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1988).
85. See, e.g., Carey v. Piphus, 435 U.S. 247, 257-59 (1978) (stating that the common law applicable to tort damages is the starting point for a damages inquiry under § 1983); Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (stating that there is no reason to believe that the common law immunity applicable to judges was abolished by § 1983). Once adopted by the federal courts, the common law rules have evolved into a form that is distinctively federal, constituting a body of "federal common law" applicable to § 1983 claims. See, e.g., Carey, 435 U.S. at 258 (noting that the common law damage rules must be adapted to provide fair compensation for constitutional injuries); Imbler v. Pachtman, 424 U.S. 409, 420-29 (1976) (discussing common law prosecutorial immunity and considering whether "the same considerations of public policy that underlie the common law rule likewise countenance absolute immunity under § 1983").
86. The term "constitutional tort" first appears in the scholarly literature in Marshall Shapo, Constitutional Tort: Monroe v. Pape and the Frontiers Beyond, 60 NW. U. L. REV. 277, 323-24 (1965).
87. Plaintiffs may prefer to bring the federal claim, if possible, in order to gain access to a federal forum and take advantage of attorneys' fee awards available to prevailing plaintiffs under 42 U.S.C. § 1988 (1988). Section 1983 claims, of course, also may be litigated in state court. The elements of the constitutional claim, however, will differ in important respects from the elements of an analogous tort claim. For example, although § 1983 itself has no intent requirement, damage liability under the Due Process Clause requires that the actions giving rise to the deprivation be more than negligent. See Daniels v. Williams, 474 U.S. 327 (1986). In addition, the Supreme Court has held that the existence of an adequate state postdeprivation remedy forecloses many tortlike due process claims on the grounds that the plaintiff has received all the process that is due. See Parratt v. Taylor, 451 U.S. 527 (1981). Liability against the governmental unit itself under § 1983 also requires a showing that the deprivation resulted from a governmental "custom or policy." See Monell v. Department of Social Servs., 436 U.S. 658 (1978).
88. See generally W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 131, at 1047-50 (5th ed. 1984);
89. 18 EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 53.04.50 (James Perkowitz-Solheim et al eds., 3d ed. 1993);
90. Horace B. Robertson, Jr., Municipal Tort Liability: Special Duty Issues of Police, Fire, and Safety, 44 SYRACUSE L. REV. 943, 946-52 (1993).
91. 18 MCQUILLIN, supra note 73, § 53.04.25, at 165; see also Moch Co. v. Rensselaer Water Co., 159 N.E. 896 (N.Y. 1928).
92. 18 MCQUILLIN, supra note 73, § 53.04.25, at 165.
93. The public duty itself is generally understood to derive from state or municipal law. See, e.g., Steitz v. City of Beacon, 64 N.E.2d 704, 705 (N.Y. 1945) (city charter provided that the city " 'may construct and operate a system of waterworks' " and that " 'it shall maintain fire, police, school and poor departments.' "). Such laws, however, are construed to require only that the government establish and operate certain services and departments. These provisions are not understood to provide a cause of action running in favor of any particular individual or group. See, e.g., 64 N.E.2d at 706 ("[P]rovisions [of the city charter] were not in terms designed to protect the personal interest of any individual and clearly were designed to secure the benefits of well ordered municipal government enjoyed by all as members of the community.").
94. See Riss v. City of New York, 240 N.E.2d 860 (N.Y. 1968); 18 MCQUILLIN, supra note 73, § 53.04.25, at 165; see also Warren v. District of Columbia, 444 A.2d 1, 8 (D.C. 1981) ("A person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people, but neither does he assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large.").
95. Courts at times have articulated the nonliability rule for failure to protect in terms of immunity for "discretionary" functions. See, e.g., Crouch v. Hall, 406 N.E.2d 303 (Ind. Ct. App. 1980) (finding no liability for failure to apprehend rapist who subsequently raped and murdered the plaintiff's decedent). Alternatively, courts have reasoned that the provision of certain protective services, such as inspections required by municipal building or fire codes, was intended for the protection generally from particular hazards, rather than as a service to any particular individual. See, e.g., Green v. Irwin, 570 N.Y.S.2d 868 (N.Y. App. Div. 1991) (finding a town not liable for negligent issuance of a building permit simply because the issuance was shown to be in violation of the building code). The terminology is not important to my argument. My point is simply that such cases ordinarily do not give rise to governmental liability, whatever the doctrinal explanation for the result.
96. 240 N.E.2d 860 (N.Y. 1968).
97. 240 N.E.2d at 861.
98. 240 N.E.2d at 860-61.
99. 240 N.E.2d at 861 (citing Schuster v. City of New York, 154 N.E.2d 534 (N.Y. 1958)). In Schuster, a witness who had supplied information to the police leading to the arrest of a dangerous fugitive received threats to his life and subsequently was shot to death. His estate sued on the grounds that the police negligently had failed to provide him with a requested bodyguard or other protection. The court held the government liable on the ground that the police owe a special duty to protect those "who have collaborated . . . in the arrest or prosecution of criminals, once it reasonably appears that they are in danger due to their collaboration." 154 N.E.2d at 537.
100. 18 MCQUILLIN, supra note 73, § 53.04.25, at 166.
101. See, e.g., Ashby v. City of Louisville, 841 S.W.2d 184 (Ky. Ct. App. 1992) (declining to find a special relationship when victim was not in state custody); Breaux v. State, 326 So. 2d 481 (La. 1976) (finding a state liable for the death of a prisoner when officials reasonably should have anticipated attack); Daniels v. Andersen, 237 N.W.2d 397 (Neb. 1975) (finding a state liable to an intoxicated victim who was locked up in a "drunk tank" where he was beaten by another drunk).
102. See Cuffy v. City of New York, 505 N.E.2d 937, 938 (N.Y. 1987). There also may be liability for governmental failure to protect against harm by dangerous persons who are released from custody, when such persons have threatened harm to particular individuals. Compare Johnson v. State, 447 P.2d 352 (Cal. 1968) (finding liability for failure to warn when specific person is threatened) with Thompson v. County of Alameda, 614 P.2d 728 (Cal. 1980) (finding no liability for failure to warn neighbors when prisoner's threat to kill was not directed toward identifiable individual).
103. See, e.g., Hartzler v. City of San Jose, 120 Cal. Rptr. 5 (Ct. App. 1975) (finding no liability for failure of the police to respond to a plea made 45 minutes before homicide); Antique Arts Corp. v. City of Torrance, 114 Cal. Rptr. 332 (Ct. App. 1974) (finding no liability for police radio dispatcher who delayed broadcasting burglary in progress for 10 minutes after alarm triggered); McCarthy v. Frost, 109 Cal. Rptr. 470 (Ct. App. 1973) (finding no liability when the police negligently failed to find a motorist who required medical aid); Hines v. District of Columbia, 580 A.2d 133 (D.C. 1990) (finding no liability for alleged failure to dispatch emergency medical care); Warren v. District of Columbia, 444 A.2d 1 (D.C. 1981) (finding no liability in a suit against the police by women assaulted in their homes by intruders); City of Rome v. Jordan, 426 S.E.2d 861 (Ga. 1993) (finding no liability for failure to respond to a call by the assault victim's sister-in-law informing the police that the perpetrator was at the victim's house); Lewis v. City of Indianapolis, 554 N.E.2d 13 (Ind. Ct. App. 1990) (finding no liability for failure to timely answer 911 call); Trezzi v. City of Detroit, 328 N.W.2d 70 (Mich. Ct. App. 1982) (finding no liability for 90-minute delay in sending police to the scene after 911 call when the behavior at most was negligent); Doe v. Hendricks, 590 P.2d 647 (N.M. Ct. App. 1979) (finding no liability for allegedly slow police response to a call for help by the neighbor of a child who was abducted and dragged into an abandoned house); Merced v. City of New York, 551 N.E.2d 589 (N.Y. 1990) (finding a municipality not liable for injuries resulting from failure reasonably to investigate a 911 call by the victim's neighbor when there was no evidence that the victim relied on assurances of assistance); Kircher v. City of Jamestown, 543 N.E.2d 443 (N.Y. 1989) (finding no liability when a police officer failed to act on a citizen report of abduction that resulted in the victim being raped and locked in a trunk for 12 hours); Sawicki v. Village of Ottawa Hills, 525 N.E.2d 468 (Ohio 1988) (finding no liability to family of a crime victim alleging negligent response to an emergency call); Steiner v. City of Pittsburgh, 509 A.2d 1368 (Pa. Commw. Ct. 1986) (finding no liability to a rape victim who sued the city for failure to respond to her emergency call). But see Earth v. Board of Educ., 490 N.E.2d 77 (Ill. App. Ct. 1986) (finding the municipality liable to an injured student for misconduct of a 911 operator); Schear v. Board of County Commrs., 687 P.2d 728 (N.M. 1984) (finding a municipality may be liable when a police department failed to respond to an emergency call for assistance from a woman who subsequently was raped).
104. See, e.g., Delong v. Erie County, 455 N.Y.S.2d 887 (N.Y. App. Div. 1982); Chambers-Castanes v. King County, 669 P.2d 451 (Wash. 1983). The court in Cuffy laid out the factors to be established in order to prove the existence of a special relationship: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking. 505 N.E. at 940. In Cuffy, although police had given assurances that they would arrest the individual who allegedly posed a threat to plaintiffs, their injuries were not caused by reliance on these assurances. See 505 N.E. at 941.
105. See, e.g., O'Connor v. City of New York, 447 N.E.2d 33 (N.Y. 1983) (finding no liability for negligence of a building inspector who certified that a new gas pipe conformed to city regulations despite an open gas pipe and the absence of a shut-off valve at the connection to the main line at the street).
106. See, e.g., Frye v. Clark County, 637 P.2d 1215 (Nev. 1981) (finding no governmental liability for an alleged failure to respond to an emergency call reporting a fire); Steitz v. City of Beacon, 64 N.E.2d 704 (N.Y. 1945) (finding no governmental liability for failure to maintain adequate fire-fighting equipment and failure adequately to maintain the water pressure and flow-regulating valve near the plaintiff's property). See generally Robertson, supra note 73, at 946-50; supra note 86.
107. See, e.g., Motyka v. City of Amsterdam, 204 N.E.2d 635 (N.Y. 1965) (finding no governmental liability for property damage and deaths resulting from a fire caused by a defective oil-heating stove even though the fire-department official had failed to report the defective stove after it had caused a previous fire). In some safety inspection cases, courts have found a special relationship based on the particular facts of the case. See, e.g., Gordon v. Holt, 412 N.Y.S.2d 534 (App. Div. 1979). Other courts impliedly or explicitly have abrogated the public duty rule with regard to negligent fire inspections, holding that such inspections are for the benefit of the occupants of the inspected buildings, a "special identifiable group of persons." Robertson, supra note 73, at 953; see, e.g., Wilson v. Nepstad, 282 N.W.2d 664 (Iowa 1979).
108. See generally 18 MCQUILLIN, supra note 73, § 53.04.25, at 165. For cases purporting to abandon the public duty rule, see, e.g., Adams v. State, 555 P.2d 235, 241 (Alaska 1976); Leake v. Cain, 720 P.2d 152 (Colo. 1986); Commercial Carrier Corp. v. Indiana River County, 371 So. 2d 1010 (Fla. 1979); Wilson v. Nepstad, 282 N.W.2d 664 (Iowa 1979); Stewart v. Schmieder, 386 So. 2d 1351 (La. 1980); Schear v. Board of County Commrs., 687 P.2d 728 (N.M. 1984); Brennen v. City of Eugene, 591 P.2d 719 (Or. 1979); Catone v. Medberry, 555 A.2d 328 (R.I. 1989); and Wood v. Milin, 397 N.W.2d 479 (Wis. 1986). In a number of these jurisdictions, however, the state legislatures have responded by passing statutes exempting particular emergency services from liability for failures to protect. See, e.g., ALASKA STAT. § 09-65.070 (1994); IOWA CODE ANN. § 670.4 (West Supp. 1993); LA. REV. STAT. ANN. § 9:2793.1 (West 1991). In addition, many jurisdictions have other immunity rules that protect municipalities from liability. See 18 MCQUILLIN, supra note 73, § 53.04.25, at 167; see also Gordon v. Bridgeport Hous. Auth., 544 A.2d 1185 (Conn. 1988) (finding a city immune from liability under discretionary-function exception for assault that occurred in public housing project). Other jurisdictions employ ordinary tort doctrines - such as the requirements of foreseeability and causation - to limit the scope of municipal liability. See 18 MCQUILLIN, supra note 73, § 53.04.25, at 167.
109. See, e.g., Stewart F. Hancock, Jr., Municipal Liability Through a Judge's Eyes, 44 SYRACUSE L. REV. 925 (1993);
110. Albert J. Harno, Tort Immunity of Municipal Corporations, 4 ILL. L.Q. 28 (1921);
111. Daniel C. Kramer, The Governmental Tort Immunity Doctrine in the United Stales: 1790-1955, 1966 U. ILL. L.F. 795;
112. see also James T.R. Jones, Battered Spouses' State Law Damage Actions Against the Unresponsive Police, 23 RUTGERS L.J. 1 (1991).
113. In New York, for example, after an extensive and impassioned debate in majority and dissenting opinions over a number of years, the rule ultimately was reaffirmed. See O'Connor v. City of New York, 447 N.E.2d 33 (N.Y. 1983). See generally Hancock, supra note 92. Similarly, when the Arizona state courts moved to abrogate the public duty rule, the legislature stepped in to reestablish the narrow limits of affirmative-duty liability in that state. See Bird v. State, 821 P.2d 287 (Ariz. Ct. App. 1991) (dismissing a negligence claim against a state on the ground that the earlier common law rule imposing liability had been overruled by state legislature).
114. See generally 5 FOWLER V. HARPER ET AL., JAMES AND GRAY ON THE LAW OF TORTS §§ 29.6, 29.11, at 620-22, 691-92 (2d ed. 1986).
115. States are generally immune from suit without their consent. See generally 5 id. § 29.2-29.4, at 599-600, 603-05.
116. Traditionally, municipalities were immune from suit for "governmental functions" - functions they performed as agents or representatives of the state - but not for other "proprietary functions." See generally 5 id. § 29.6, at 622-39. The tests most commonly invoked for distinguishing governmental from proprietary functions are: "(1) whether the function is allocated to the municipality for its profit or special advantage or whether for the purpose of carrying out the public functions of the state without special advantage to the city, and (2) whether the function is one historically performed by the government." 5 Id. § 29.6, at 627.
117. See generally 5 id. § 29.11, at 690-95.
118. See generally Note, Municipal Tort Liability in Virginia, 68 VA. L. REV. 639, 639 n.2 (1982) (noting that 43 jurisdictions have abolished or limited the scope of immunity for governmental functions); see also generally 5 HARPER ET AL., supra note 94, § 29.6, at 622-39; 18 MCQUILLIN, supra note 73, § 53.02.05, at 130.
119. The public duty rule is a judicially created rule. However, courts have continued to apply the rule even after legislative abrogation of municipal sovereign immunity.
120. These statutes generally provide immunity from liability for failure to provide certain protective services or for harms done by third parties that city employees allegedly failed to prevent. See, e.g., ALASKA STAT. § 09.65.070 (1994) (providing that fire departments and 911 services have immunity for failed response); ARIZ. REV. STAT. ANN. §§ 12-820.01 to -820.05 (1992 & Supp. 1994) (providing immunity for police for failure to arrest or prevent a crime); CAL. GOVT. CODE §§ 845, 846, 850 (West 1995) (providing no liability for failure to provide police protection, fire protection, or failure to arrest); ILL. ANN. STAT. ch. 745, para. 10/4-103 to 10/4-107 (Smith-Hurd 1993) (providing immunity for failure to provide police protection or failure to arrest); IOWA CODE ANN. § 670.4 (West Supp. 1995) (providing immunity for failure to act if damage is caused by a third party and for failure of a 911 service to respond); LA. REV. STAT. ANN. § 9:2793.1 (West 1991) (providing immunity for damage caused by a crime or fire unless "grossly negligent"); MISS. CODE ANN. § 11-46-9 (1995) (providing that police and fire fighters are immune unless exercising "reckless disregard"); TEX. CIV. PRAC. & REM. CODE ANN. § 101.055 (West 1986) (providing immunity for failure to provide police and fire protection and failure to respond to emergencies); UTAH CODE ANN. § 63-30-10 (1993) (providing immunity for failure to provide emergency medical assistance or fire service); W. VA. CODE § 29-12A-5 (1992 & 1995 Supp.) (providing immunity for failure to provide police and fire services).
121. The mere longevity of a rule or pattern of liability does not, of course, prove that the rule or pattern has a coherent or normatively defensible explanation. On the other hand, one ought at least to entertain the possibility that a rule for handling certain kinds of cases that endures over time - in this case against a legal environment moving in the opposite direction - could reflect a defensible, if not normatively satisfying, rationale. That is especially true when the general pattern of liability has been repeated, as we shall see, in two different legal contexts in which different patterns might have been predicted.
122. See Riss v. City of New York, 240 N.E.2d 860, 860 (N.Y. 1968).
123. See 240 N.E.2d at 860; see also Mann v. State, 139 Cal. Rptr. 82, 85 (Ct. App. 1977) (Statutory immunity for failure to protect "was designed to prevent political decisions of policy-making officials of government from being second-guessed by judges and juries . . . . In other words, [the] essentially budgetary decisions of these officials were not to be subject to judicial review in tort litigation.").
124. CLAYTON P. GILLETTE, LOCAL GOVERNMENT LAW 396 (1994).
125. See William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 YALE L.J. 635, 645-49 (1982);
126. Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 394 (1978).
127. The concept of polycentricity apparently was derived from MICHAEL POLANYI, THE LOGIC OF LIBERTY: REFLECTIONS AND REJOINDERS 171 (1951).
128. Fletcher, supra note 105, at 645. Lon Fuller compares a polycentric situation to a spiderweb: "A pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole. Doubling the original pull will, in all likelihood, not simply double each of the resulting tensions but will rather create a different complicated pattern of tensions." Fuller, supra note 105, at 395.
129. Fuller, supra note 105, at 401.
130. As Fuller points out, polycentricity is a matter of degree; almost all problems presented for adjudication involve some polycentric elements. There is, however, a point at which the polycentric elements so dominate a problem that attempting to resolve it in a judicial forum may exceed the "proper limits of adjudication." Id. at 398-99. Legal scholars disagree as to where the dividing line ought to be drawn between functions that are appropriate for judicial resolution and those that are so polycentric as to exceed the capabilities of the judicial process. But the debate itself presupposes widespread agreement that there is - or ought to be - such a line and that the relative polycentricity of legal problems is relevant to the line-drawing process.
131. See generally GILLETTE, supra note 104, at 394-96.
132. In the words of William Fletcher, resolution of such interlocking disputes requires mutual spontaneous adjustment by the constituent parts of the problem itself - rather like the bees in a hive finding their appropriate space and function by their sense of the bees around them, with each bee individually adjusting to its neighbors, and each neighboring bee in turn adjusting to the other's adjustment until a stable equilibrium is reached. Fletcher, supra note 105, at 647 (citing POLANYI, supra note 105); see also HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 669 (tentative ed. 1958) (noting that polycentric problems "present so many variables as to require handling by the method either of ad hoc discretion or of negotiation or of legislation").
133. GILLETTE, supra note 104, at 396.
134. It is, of course, open to debate how well legislatures function in their deliberative capacity: whether they actually reflect the preferences of their various constituencies or whether they have been captured by special interests and lobbyists. That question is beyond the scope of this article. My only point is that, as a matter of institutional competence, there is reason to believe that legislatures are in a better position than courts to handle these sorts of questions.
135. Under certain circumstances, nonparties may be able to file amicus curiae briefs in order to bring additional information before the court, assure presentation of the complete factual scenario, or point out the broader implications of the court's decision. Such participation, however, is limited, and the rules regarding the participation of amicii curiae differ among various federal and state jurisdictions. See generally Michael K. Lowman, Comment, The Litigating Amicus Curiae: When Does the Party Begin After the Friends Leave?, 41 AM. U. L. REV. 1243 (1992);
136. Randy S. Parlee, A Primer on Amicus Curiae Briefs, WIS. LAW., Nov. 1989, at 14.
137. See generally Ann Judith Gellis, Legislative Reforms of Governmental Tort Liability: Overreacting to Minimal Evidence, 21 RUTGERS L.J. 375 (1990). Gellis states: A government decision to provide a good which is either unavailable in, or inadequately supplied by, the private sector involves various sub-decisions relating to the provision of that good: how much to produce, who should receive the good, how to finance it, and how to structure delivery of the good. These decisions are complicated political decisions, quite apart from the political nature of the budgetary process. . . . [T]he complexity of the decision-making process as to the entire output makes it far less certain that the judiciary has the information necessary to second guess as to any one decision. Id. at 386.
138. See PETER W. LOW & JOHN C. JEFFRIES, JR., CIVIL RIGHTS ACTIONS: SECTION 1983 AND RELATED STATUTES 721 (2d ed. 1991).
139. See Missouri v. Jenkins, 495 U.S. 33 (1990).
140. See generally Fletcher, supra note 105, at 640-41.
141. In structural-reform cases, there are generally a number of permissible ways in which a constitutional violation could be remedied. For example, in a prison-overcrowding case the judge could order the release of prisoners, improvement of existing facilities, or the building of new facilities. See Id. at 646-47.
142. For example, one district court decree required high schools in which every classroom will have air conditioning, an alarm system, and 15 microcomputers; a 2,000-square-foot planetarium; green-houses and vivariums; a 25-acre farm with air-conditioned meeting room for 104 people; a Model United Nations wired for language translation; broadcast capable radio and television studios with an editing and animation lab; a temperature controlled art gallery; movie editing and screening rooms; a 3,500-square-foot dust-free diesel mechanics room; 1,875-square-foot elementary school animal rooms for use in a zoo project; swimming pools; and numerous other facilities. Missouri v. Jenkins, 495 U.S. 33,77 (1990) (Kennedy, J., concurring in part and concurring in the judgment).
143. Decrees in prison and mental hospital cases may specify, among other things, "precise staffing ratios, the temperatures in rooms or cells, the types and quantities of food to be served, [and] the manner of determining types of and times for isolation or solitary confinement." Fletcher, supra note 105, at 639.
144. See generally id. at 645-49. Fletcher argues that courts called upon to formulate broad structural remedies are dealing with nonlegal-polycentric problems that call into question their institutional authority because courts have "no guidance from legal norms as to the appropriate values to be served by the solution[s]." Id. at 647. Even when judicial intervention is itself "triggered by the violation of a legal standard," the court reaches beyond the limits of the judicial role when the remedy calls on the court to "reorganize the governmental functions of a political branch of [the government]." Id.
145. See, e.g., Owen M. Fiss, The Supreme Court, 1978 Term - Foreword: The Forms of Justice, 93 HARV. L. REV. 1, 28-44 (1979); Fletcher, supra note 105, at 641-49, 692-97;
146. David Rudenstine, Institutional Injunctions, 4 CARDOZO L. REV. 611, 624-37 (1983).
147. Examples of the Supreme Court's efforts to limit the potential reach of structural reform remedies are the requirement that the remedy be closely tailored to the constitutional violation, see Milliken v. Bradley, 418 U.S. 717, 744 (1974), and the enforcement of standing requirements, see City of Los Angeles v. Lyons, 461 U.S. 95, 105-10 (1983); see also infra notes 229-231 and accompanying text.
148. See generally GILLETTE, supra note 104, at 394-95.
149. There are, of course, some judicially enforceable legal restraints on the relative distribution of goods and services, such as constitutional prohibitions against discrimination on the basis of race or sex. See U.S. CONST. amend. XIV, § 1; Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984).
150. Fuller, supra note 105, at 403.
151. See supra notes 91-98 and accompanying text.
152. Available state legislative history confirms that the rationale for statutes disallowing failure-to-protect claims is legislators' view that decisions about whether and at what level to provide certain protective services lies properly within the purview of the political process rather than the courts. See, e.g., Sovereign Immunity Study, 5 CAL. L. REVISION COMMN. REPORTS 11, 464 (1963) (noting that the decision of whether to provide fire protection was primarily political and "quite unfitted to the processes of judicial administration");
153. Tort Liability of Public Entities and Public Employees: Recommendation, 4 CAL. L. REVISION COMMN. REPORTS 807, 860-861 (1963) ("To permit review of these decisions [whether to provide police or fire protection] by judges and juries would remove the ultimate decisionmaking authority from those politically responsible for making the decisions.").
154. These facts are drawn from Chandler v. District of Columbia, 404 A.2d 964 (D.C. 1979).
155. See supra notes 104-26 and accompanying text.
156. Of course, not all such cases would result in liability. Plaintiff would have to demonstrate that the government was at fault and that its actions were the legal and proximate cause of the injury; she ultimately may be unable to do so. But the argument against liability is that even entertaining cases that challenge resource allocations necessarily would involve the court in reviewing political decisions and raise institutional competence concerns.
157. The facts are based, with modifications, on Crosland v. New York City Transit Authority, 498 N.E.2d 143 (N.Y. 1986). I am indebted to Clay Gillette for the comparison of Chandler with Crosland, which appears in GILLETTE, supra note 104, at 714-18, and which he discussed with me at some length.
158. Crosland, 498 N.E.2d at 145.
159. In the first instance, the police department could respond to liability for its failure to post officers at the metro station by shifting available officers from other locations, rather than by hiring additional officers. But the police department's ability to cover all locations where third-party harms are likely to occur is obviously limited by the number of available officers. It seems likely that, over time, liability based on the theory that more officers ought to have been stationed at more locations would put significant pressure on the city to hire substantially more police officers.
160. See Riss v. City of New York, 240 N.E.2d 860, 865 (N.Y. 1968) (Keating, J., dissenting). There is, however, a plausible argument that these two kinds of claims would differ significantly in the degree to which liability would affect the municipal budget. In many instances, one could expect that increasing the level of services - hiring more police officers, building more firehouses - would be more expensive than reasonably maintaining the level of services one already has. This difference in degree surely matters if we are concerned about liability that implicates resource allocation. Claims that would have an incidental effect on the municipal budget by requiring the government to spend more money on supervision and training are at one end of the spectrum, and claims that would require the reallocation of enough resources to increase the level of services, plausibly requiring resources to be moved from one service "box" to another, are at the other.
161. This assumes, not implausibly, that the legislature intended to establish and fund a police force that would act nonnegligently in its interactions with the public.
162. In this regard, these sorts of failure-to-protect claims are very like governmental liability in situations not involving intervening third-party harm. For example, imagine a claim against the government for police brutality in which the plaintiff alleges that the police officers who arrested him on drug charges caused him to sustain a concussion and two broken arms. It is unlikely that these police actions were determined or limited in principal part by resource constraints, except in the limited sense that training and supervision costs money. Resolution of the claim would not involve the court in reviewing the kind of resource-allocation decisions implicated by the inadequate-fire-protection claim; the court simply would determine whether police officers used a reasonable amount of force under the circumstances, the sort of question courts are accustomed to resolving.
163. To give another illustration of the same idea, consider the difference between a claim for injuries due to a defective sidewalk and a claim for injuries resulting from failure to lay a sidewalk in the first place. The first claim will result in liability if the municipality had notice of a significant defect and failed to remedy it. See, e.g., Livings v. City of Chicago, 326 N.E.2d 170 (Ill. App. Ct. 1975). See generally 19 MCQUILLIN, supra note 73, §§ 54.80-54.80d, at 256-68. Liability would require the city reasonably to implement a prior decision by the political branches to have a sidewalk in a particular location. Indeed, cities are required to close defective public ways if they cannot maintain them nonnegligently, for example, due to lack of funding. See id. § 54.23, at 75. By contrast, the second claim would involve the court in evaluating political decisions about how much money should be available for sidewalk construction (resource allocation at the legislative level) and how those resources ought to be allocated among all the possible locations where sidewalks might be needed (resource allocation at the operational level). Such claims virtually never succeed. See, e.g., Arvel v. City of Baton Rouge, 234 So. 2d 458 (La. Ct. App. 1970); Braithwaite v. West Valley City Corp., 860 P.2d 336 (Utah 1993).
164. A full discussion of the strengths and weaknesses of the political process in monitoring the behavior of governmental officials is beyond the scope of this paper.
165. See generally Gellis, supra note 114, at 389-90; see also Larry Kramer & Alan O. Sykes, Municipal Liability Under § 1983: A Legal and Economic Analysis, 1987 SUP. CT. REV. 249, 279 (arguing that because officials are confronted both with demands for increased public services and calls for lower taxes, they are under pressure to provide higher levels of public service at minimum cost).
166. Maintenance is a low visibility service, and empirical evidence supports the theory that when a bureau is forced to reduce costs, maintenance will be at the top of its list. Maintenance is an operating expense funded put of the current budget for which the short-term political rewards are likely to be viewed as less compelling compared with those associated with adding new facilities or new programs. Gellis, supra note 114, at 390 (footnotes omitted). See generally FRANK LEVY ET AL., URBAN OUTCOMES: SCHOOLS, STREETS, AND LIBRARIES 48, 59, 137, 185 (1974) (noting that a study of public services - primarily schools and streets - in Oakland, California found that routine maintenance was the first to suffer when funding cutbacks were made);
167. see also generally HERMAN B. LEONARD, CHECKS UNBALANCED: THE QUIET SIDE OF PUBLIC SPENDING 169-75 (1986) (explaining why maintenance of infrastructure is a "no-reward" expenditure for public officials).
168. See generally ANTHONY DOWNS, INSIDE BUREAUCRACY 195-99 (1967) (giving reasons for expansionist tendency of agencies and bureaus);
169. WILLIAM A. NISKANEN, JR., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971) (arguing that, unlike a private firm, the survival of a public bureau depends on the size of its budget, rather than on the efficiency of its operations).
170. See Gellis, supra note 114, at 390 (citing BETTY VAN DER SMISSEN, THE LEGAL LIABILITY OF CITIES AND SCHOOLS FOR INJURIES IN RECREATION AND PARKS § 4.2, at 192 (1968) (showing the connection between maintenance and liability costs)).
171. See supra notes 132-33 and accompanying text.
172. See, e.g., Kircher v. City of Jamestown, 543 N.E.2d 443, 446 (N.Y. 1989) ("[W]here a municipality voluntarily undertakes to act on behalf of a particular citizen who detrimentally relies on an illusory promise of protection offered by the municipality, we have permitted liability because in such cases the municipality has by its conduct determined how its resources are to be allocated in respect to that circumstance and has thereby created a 'special relationship' with the individual seeking protection.").
173. See supra notes 129-31 and accompanying text.
174. Constitutional duty-to-protect cases trace their roots back to the 1976 case of Estelle v. Gamble, 429 U.S. 97 (1976), in which the Supreme Court held that the government owes a duty under the Eighth Amendment to protect prisoners from certain injuries while in custody. Later, in Youngberg v. Romeo, 457 U.S. 307 (1982), and City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983), the Court held that the government owes a similar duty of protection under the Fourteenth Amendment to involuntarily committed mental patients and pretrial detainees, respectively. The Court first considered a claim of failure to protect outside the custodial setting in Martinez v. California, 444 U.S. 277 (1980), a case against the government for the release of a parolee who subsequently killed plaintiff's decedent. The Court dismissed the case on the grounds that there was no causation but left open the possibility that, under other circumstances, such a Fourteenth Amendment right might be upheld. See 444 U.S. at 284-85. Lower court cases prior to DeShaney involving noncustodial failure-to-protect claims under the Fourteenth Amendment relied on Martinez. See generally Jensen v. Conrad, 747 F.2d 185, 190-94 (4th Cir. 1984), cert. denied, 470 U.S. 1052 (1985). 148. 471 F. Supp. 1262 (E.D. Pa. 1979).
175. The facts recited by the district court suggest that the police never actually received a call for help from plaintiff or anyone else. See 471 F. Supp. at 1264.
176. See supra notes 129-31 and accompanying text.
177. In a case raising similar issues, Jackson v. Byrne, 738 F.2d 1443 (7th Cir. 1984), plaintiffs sought damages for governmental failure to prevent their children's deaths in an apartment fire. The deaths occurred during a firefighters' strike in which the city had closed a firehouse near plaintiffs' apartment building. See 738 F.2d at 1444-45. Thirteen minutes after the fire was
178. 704 F.2d 1540 (11th Cir.), cert. denied, 464 U.S. 963 (1983).
179. See 704 F.2d at 1541.
180. See 704 F.2d at 1542.
181. See 704 F.2d at 1542.
182. The Court of Appeals reversed a jury verdict finding the county negligent on plaintiff's theory. See 704 F.2d at 1544.
183. 801 P.2d 646 (N.M. 1990).
184. See 801 P.2d at 648.
185. See, e.g., Jones v. City of Carlisle, 3 F.3d 945, 947, 950 (6th Cir. 1993) (finding no liability when plaintiff who sustained injuries in an accident caused by an epileptic driver sued the government for alleged failure to investigate and report accidents with epileptic drivers), cert. denied, 114 S. Ct. 1218 (1994); Edwards v. Johnston County Health Dept., 885 F.2d 1215, 1225 (4th Cir. 1989) (finding no liability for governmental failure to enforce state and federal migrant-housing statutes); Hull v. City of Duncanville, 678 F.2d 582, 585 (5th Cir. 1982) (finding no liability for failure to enforce train-speed ordinance); Baugh v. City of Milwaukee, 823 F. Supp. 1452, 1466-67 (E.D. Wis. 1993) (finding no liability for deaths by fire when city allegedly failed properly to inspect apartment building for smoke alarms), affd., 41 F.3d 1510 (7th Cir. 1994); Crosby v. Luzerne County Hous. Auth., 739 F. Supp. 951, 952, 956 (M.D. Pa.) (finding no liability for injuries to plaintiff's son, who was unable to escape from third floor of burning building, when local officials had inspected premises and permitted use of "fire ladder" that did not meet requirements under applicable state regulations), affd., 919 F.2d 134 (3d Cir. 1990); Wright v. Bailey, 611 So. 2d 300, 302, 306 (Ala. 1992) (finding no liability for death of plaintiff's wife in a two-car accident when government allegedly permitted the other driver, who was intoxicated, to get into his car and drive in order to enhance the charges against him).
186. See, e.g., Shortino v. Wheeler, 531 F.2d 938, 939 (8th Cir. 1976) (finding no liability for alleged inadequate fire protection throughout Kansas City, Missouri); Westbrook v. City of Jackson, 772 F. Supp. 932, 942-43 (S.D. Miss. 1991) (finding a municipality not liable for failure to provide fire protection due to inadequate water supply to property recently annexed to city); Wooters v. Jomlin, 477 F. Supp. 1140, 1148-50 (D. Del. 1979) (rejecting the argument that certain state and county laws had created a property interest in the provision of governmental services), affd., 622 F.2d 580 (3d Cir.), cert. denied, 449 U.S. 992 (1980); Reedy v. Mullins, 456 F. Supp. 955, 957-58 (W.D. Va. 1978) (finding no general right to adequate fire protection and rejecting the argument that vague contract with city based on payment of taxes created property right in adequate fire protection).
187. See, e.g., Bryson v. City of Edmond, 905 F.2d 1386, 1392-94 (10th Cir. 1990) (finding no liability for police failure to protect when gunman entered a post office and started shooting); Wells v. Walker, 852 F.2d 368, 370 (8th Cir. 1988) (finding that members of general public have no constitutional right to be protected by the state against harm inflicted by third parties); McClary v. O'Hare, 786 F.2d 83, 88 (2d Cir. 1986) (finding no liability for failure to act); Beard v. O'Neal, 728 F.2d 894, 899 (7th Cir. 1984) (finding no duty to intervene when general public is imperiled); Hynson v. City of Chester, 731 F. Supp. 1236, 1240 (E.D. Pa. 1990) (finding that a state's Protection from Abuse Act did not create property interest under the Due Process Clause).
188. See, e.g., Archie v. City of Racine, 847 F.2d 1211, 1221 (7th Cir. 1988) (finding that failure of the city to send an ambulance driver to the home of a hyperventilating woman who later died did not violate due process), cert. denied, 489 U.S. 1065 (1989); Wideman v. Shallowford Community Hosp., 826 F.2d 1030, 1036 (11th Cir. 1987) (finding no liability when ambulance drivers refused to take pregnant woman to certain hospital); Handley v. City of Seagoville, 798 F. Supp. 1267, 1272 (N.D. Tex. 1992) (finding no liability for failure to provide ambulance service when requested); Hendon v. DeKalb County, 417 S.E.2d 705, 712 (Ga. Ct. App. 1992) (finding no liability to stroke victim for failure to respond to 911 call); Doe v. Calumet City, 609 N.E.2d 689, 694 (111. App. Ct. 1992) (finding no liability for failure to respond to 911 call); Culver-Union Township Ambulance Serv. v. Steindler, 629 N.E.2d 1231, 1234 (Ind. 1994) (finding no municipal liability for actions of city ambulance service in response to emergency call).
189. See Estate of Bailey ex rel. Oare v. County of York, 768 F.2d 503, 511 (3d Cir. 1985); see also Jensen v. Conrad, 747 F.2d 185, 194-95 (4th Cir. 1984) (finding no clearly established right of protection owed to children not in foster care but noting that special relationship could arise under certain circumstances), cert. denied, 470 U.S. 1052 (1985). But see Milburn v. Anne Arundel County Dept. of Social Servs., 871 F.2d 474, 479 (4th Cir. 1989) (finding no liability for alleged failure to report abuse and to remove child from abusive foster home); Harpole v. Arkansas Dept. of Human Servs., 820 F.2d 923 (8th Cir. 1987) (finding no liability for injuries to child being monitored by social services). Cases after DeShaney have denied governmental liability for failure to prevent the abuse of children being followed by social services but not in foster care. See, e.g., McComb v. Wambaugh, 934 F.2d 474 (3d Cir. 1991); Doe v. Milwaukee County, 903 F.2d 499 (7th Cir. 1990); Edwards v. Johnston City Health Dept., 885 F.2d 1215 (4th Cir. 1989); Sapp v. Cunningham, 847 F. Supp. 893 (D. Wyo. 1994); Burke v. Sheboygan County Human Servs., 790 F. Supp. 194 (E.D. Wis. 1992); Chrissy F. v. Mississippi Dept. of Pub. Welfare, 780 F. Supp. 1104 (S.D. Miss. 1991), cert. denied sub nom. Chrissy F. v. Dale, 114 S. Ct. 1336 (1994); see also Griffith v. Johnston, 899 F.2d 1427 (5th Cir. 1990), cert. denied, 498 U.S. 1040 (1991) (finding no liability for failure to provide adequate information to adoptive parents). Some courts have held the government liable for injuries to children in state-sponsored foster care. See infra note 198.
190. See, e.g., Balistreri v. Pacifica Police Dept., 855 F.2d 1421 (9th Cir. 1988), revd. in light of DeShaney, 901 F.2d 696 (9th Cir. 1990); Dudosh v. City of Allentown, 629 F. Supp. 849 (E.D. Pa. 1985). Most failure-to-protect claims involving domestic violence after DeShaney have not resulted in liability, even when the claim alleged failure to enforce a protective order. See, e.g., Losinski v. County of Trempealeau, 946 F.2d 544 (7th Cir. 1991); Dawson v. Milwaukee Hous. Auth., 930 F.2d 1283 (7th Cir. 1991); Brown v. Grabowski, 922 F.2d 1097 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991); Coffman v. Wilson Police Dept., 739 F. Supp. 257 (E.D. Pa. 1990); Hynson v. City of Chester, 731 F. Supp. 1236 (E.D. Pa. 1990); Duong v. County of Arapahoe, 837 P.2d 226 (CoIo. Ct. App. 1992); Ashby v. City of Louisville, 841 S.W.2d 184 (Ky. Ct. App. 1992). But see Freeman v. Ferguson, 911 F.2d 52, 55 (8th Cir. 1990) (finding liability when defendant police officer was friend of attacker); Pinder v. Commissioners of Cambridge, 821 F. Supp. 376, 395 (D. Md. 1993) (finding liability when the government promised plaintiff that defendant-attacker would remain in jail but then released him); Siddle v. City of Cambridge, 761 F. Supp. 503 (S.D. Ohio 1991) (finding that protective order created property right in abused spouse to be protected from domestic violence but that police did not violate this right because they made reasonable efforts to protect her).
191. Cases involving general failures to protect theoretically could implicate two stories as well; but the "misbehavior" story is more difficult to make out when no identifiable governmental agent has been involved with the injured plaintiff.
192. See supra notes 148-51 and accompanying text.
193. It is not necessary to distinguish entity liability from individual-officer liability in this regard. In the event that injured victims pursue a judgment against the individual officer rather than the "deep pocket" governmental defendant, most states provide some form of indemnification against adverse judgments or settlements. See generally PETER H. SCHUCK, SUING GOVERNMENT 85-88 (1983). Thus, the burden of liability will ultimately fall upon the governmental entity.
194. These numbers are not unrealistic. Many caseworkers are required to carry much higher caseloads than they realistically can manage. In a District of Columbia case, one social worker testified that she was responsible for 69 families and 251 children, down from a high of 131 families and over 300 children. See LaShawn A. v. Dixon, 762 F. Supp. 959, 978 (D.D.C. 1991). To comply with state and federal law applicable to the District of Columbia, a social worker should have a maximum of only 20-40 families.
195. There is also reason to think that the "custom or policy" analysis applicable to municipal liability could be sensitive to resource-allocation issues. See City of Canton v. Harris, 489 U.S. 378, 392 (1989) (holding that claims against a municipality for inadequate training require a showing of deliberate indifference in order to avoid judicial "second-guessing [of] municipal employee-training programs").
196. See infra notes 196-236 and accompanying text.
197. Judicial reluctance to do this kind of review seems to have influenced the doctrine of absolute prosecutorial immunity in suits alleging malicious prosecution: it would be difficult or impossible to show malice in such cases without reviewing the prosecutor's decisionmaking process, including past cases that she chose not to prosecute. Although this idea does not often appear in the literature, colleagues who teach criminal procedure have identified this notion as one strand of the rationale for prosecutorial immunity. See, e.g., United States v. Redondo-Lemos, 955 F.2d 1296, 1299-300 (9th Cir. 1992).
198. One could defend the objective fault rule on normative grounds as simply a way of defining the minimal standard necessary to satisfy the demands of the Constitution, regardless of resulting budgetary implications. Indeed, courts are fond of saying that lack of funds is no excuse for unconstitutional governmental actions. That begs the question, however, of what exactly the Constitution requires in this class of cases.
199. After DeShaney - and despite language that could be read to foreclose failure-to-protect liability except in the custodial setting -courts have continued to permit liability in a subset of noncustodial cases. Courts have relied on the DeShaney Court's rationale for finding no liability in that case - that the government had played no part in creating the dangers that caused Joshua's injuries or in rendering him any more vulnerable to them, see DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189,201 (1989) - to justify liability when governmental officials allegedly have played a part in creating or increasing the risk of injury to plaintiff. See, e.g., Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993); Dwares v. City of New York, 985 F.2d 94, 98-99 (2d Cir. 1993); Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir. 1989).
200. 910 F.2d 1422 (7th Cir. 1990).
201. The Deputy Sheriff apparently was following an explicit county policy prohibiting civilians from attempting rescues under any circumstances. See 910 F.2d at 1425.
202. See 910 F.2d at 1425.
203. 934 F.2d 1267 (D.C. Cir. 1991).
204. Plaintiffs' claim was brought against federal officials under 42 U.S.C. § 1983 (1988) on the theory that they were acting under color of state law at the tune of the injury. See 934 F.2d at 1269.
205. See 934 F.2d at 1269.
206. See 934 F.2d at 1270.
207. See 934 F.2d at 1271.
208. In Ross, the court noted that county officials failed to inquire whether the private rescuers were qualified to attempt a rescue, even when it became apparent that the governmental rescuers were not going to arrive in time to save the child's life. See Ross v. United States, 910 F.2d 1422, 1433 (7th Cir. 1990).
209. The Andrews court distinguished Ross on the grounds that both the officers' behavior and the underlying circumstances were materially different in the two cases. For example, the court noted that, in Andrews, police officers were reasonable in discouraging the private rescuers because the officers had no way of assessing the rescuers' level of skill, and - given the victim's bizarre behavior - police reasonably thought he could have been dangerous. See Andrews, 934 F.2d at 1271; see also Franklin v. City of Boise, 806 F. Supp. 879, 888 (D. Idaho 1992) (finding police officers acted reasonably in prohibiting an intoxicated private rescuer from diving after an individual who fell into a pond and drowned while resisting arrest).
210. 592 F.2d 381 (7th Cir. 1979). Even judges who are generally hostile to duty-to-protect claims have indicated their agreement with White. See, e.g., Archie v. City of Racine, 847 F.2d 1211, 1223 (7th Cir. 1988) (Judge Easterbrook), cert. denied, 489 U.S. 1065 (1989); Jackson v. City of Joliet, 715 F.2d 1200, 1204 (7th Cir. 1983) (Judge Posner), cert. denied, 465 U.S. 1049 (1984).
211. 879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990).
212. A number of jurisdictions have rejected such claims after DeShaney. For example, in Milliard v. City of Denver, 930 F.2d 1516 (10th Cir.), cert. denied, 502 U.S. 1013 (1991), the court found no liability when a woman was robbed and sexually assaulted by a third party after the intoxicated driver of the car in which she had been traveling was arrested, and his car was impounded. Milliard cannot readily be distinguished from Ostrander on factual grounds nor on grounds that it raises greater concerns about resource allocation. The court found DeShaney controlling and held that no duty to protect in that situation was "clearly established." See 930 F.2d at 1520. In two other cases, the courts apparently concluded that governmental officials behaved reasonably under clear law. See Walton v. City of Southfield, 995 F.2d 1331, 1339 (6th Cir. 1993) (finding that no clearly established law was violated when police officers permitted a fifteen-year-old and a two-year-old to find their own way home after officers arrested their grandmother, who had been driving the car); Sewell v. Van Buren Township Police Dept., 806 F. Supp. 1315, 1320-21 (E.D. Mich. 1992) (finding no clearly established law violated when plaintiff, who was suffering from delusions, was arrested, released, and later injured while wandering down the median of an interstate highway as she attempted to walk home).
213. See, e,g., Reed v. Gardner, 986 F.2d at 1122 (7th Cir. 1993) (permitting liability when police left intoxicated passenger in car after arresting driver, after which passenger drove off and caused an accident that injured plaintiff); Russell v. Steck, 851 F. Supp. 859 (N.D. Ohio 1994) (permitting a due process claim when police officers insisted that plaintiff, who had become disorderly at a hotel, get into his car and exit the premises despite evidence - and over his objections - that he was too intoxicated to drive); Estate of Tittiger v. Doering, 678 F. Supp. 177 (E.D. Mich. 1988) (permitting a due process claim for death of passenger who was killed when police stopped the car in which he had been riding, gave the teenage driver a number of sobriety tests, and then insisted that the intoxicated passenger ride his bicycle home at night with no lights rather than ride home with his intoxicated friend). But see Gregory v. City of Rogers, 974 F.2d 1006 (8th Cir. 1992) (finding no liability when police detained "designated driver" on outstanding traffic warrant, and passengers - who unbeknownst to police were also intoxicated -were injured when they attempted to drive themselves home), cert, denied, 113 S. Ct. 1265 (1993).
214. 985 F.2d 94 (2d Cir. 1993).
215. See 985 F.2d at 97, 99.
216. 867 F.2d 909 (6th Cir. 1989).
217. See 867 F.2d at 914.
218. By contrast, in Losinski v. County of Trempealeau, 946 F.2d 544 (7th Cir. 1991), the court found no liability when plaintiff's decedent was murdered in the presence of a deputy sheriff who had accompanied her to a meeting with her estranged husband. Although the court's analysis, citing DeShaney, centers around the absence of a duty to protect, it appears from the court's detailed presentation of the facts that the deputy's actions at most were grossly negligent. See 946 F.2d at 550.
219. See supra notes 160-66 and accompanying text; see also Jackson v. City of Joliet, 715 F.2d 1200, 1204 (7th Cir. 1983) (finding a police officer not liable for failing to determine whether anyone was still inside a burning automobile when the officer arrived at the scene of an accident), cert. denied, 465 U.S. 1049 (1984).
220. Cf. Rogers v. City of Port Huron, 833 F. Supp. 1212 (E.D. Mich. 1993) (finding no liability for injuries to an intoxicated man who was hit by a car after police left him on a grassy area of lawn by the curb). Courts have avoided Tucker-tike claims on a number of grounds: for example, that plaintiffs failed to show causation, see, e.g., Beard v. O'Neal, 728 F.2d 894 (7th Cir. 1984) (holding FBI informant who was with a police officer when he carried out a contract killing not liable for failing to prevent the murder), or failed to prove that governmental officials had the requisite intent. See, e.g., Escamilla v. City of Santa Ana, 796 F.2d 266 (9th Cir. 1986) (finding undercover police officers, who happened to be in a bar when a fight broke out, not liable for failure to prevent a shooting).
221. It might be objected that what really explains the line between liability and nonliability in failure-to-protect cases is that courts permit liability when governmental officials act in bad faith. That explanation would mean that none of the general failure-to-protect cases, including cases involving unanswered calls for help, involves bad faith. But there is no reason to think that general failures to protect never involve some element of bad faith. Rather, courts appear unwilling even to consider the question of bad faith where resource-allocation issues are significantly implicated.
222. See, e.g., Ryan v. Burlington County, 889 F.2d 1286 (3d Cir.), cert. denied sub nom. Fauver v. Ryan, 490 U.S. 1020 (1989) (finding that a pretrial detainee has clearly established right to safe environment and not to be housed with dangerous inmate); Withers v. Levine, 615 F.2d 158 (4th Cir.) (finding a duty to protect prison inmates from a known risk of harm from sexual assaults by other inmates), cert. denied, 449 U.S. 849 (1980); Spence v. Staras, 507 F.2d 554 (7th Cir. 1974); Merideth v. Grogan, 812 F. Supp. 1223 (N.D. Ga. 1992) (finding a duty to protect a person in custody with known suicidal tendencies from risk of suicide), affd., 985 F.2d 579 (11th Cir. 1993); Simmons v. City of Philadelphia, 728 F. Supp. 352 (E.D. Pa. 1990) (finding that an intoxicated pretrial detainee was entitled to at least the same level of care as a convicted prisoner), affd., 947 F.2d 1042 (3d Cir. 1991), cert. denied, 503 U.S. 985 (1992); Gann v. Delaware State Hosp., 543 F. Supp. 268 (D. Del. 1982) (finding that the state has a duty to provide for the reasonable safety of an involuntarily committed patient in a state mental hospital); see also Strauss, supra note 8, at 67.
223. See DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 200 (1989).
224. See 489 U.S. at 201 n.9. A number of lower courts, both before and after DeShaney, have permitted liability for injuries to children in government-mandated foster care when governmental officials were "deliberately indifferent" to the risk of harm to the child. See, e.g., Norfleet v. Arkansas Dept. of Human Servs., 989 F.2d 289 (8th Cir. 1993); Yvonne L. v. New Mexico Dept. of Human Servs., 959 F.2d 883 (10th Cir. 1992); K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990); Meador v. Cabinet for Human Resources, 902 F.2d 474 (6th Cir.), cert. denied, 498 U.S. 867 (1990); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791 (11th Cir. 1987), cert. denied sub nom. Ledbetter v. Taylor, 489 U.S. 1065 (1989); Doe v. New York Dept. of Social Servs., 709 F.2d 782 (2d Cir.), cert. denied sub nom. Catholic Home Bureau v. Doe, 464 U.S. 864 (1983); Eric L. v. Bird, 848 F. Supp. 303 (D.N.H. 1994); Baby Neal v. Casey, 821 F. Supp. 320 (E.D. Pa. 1993); LaShawn A. v. Dixon, 762 F. Supp. 959 (D.D.C. 1991); B.H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989). After DeShaney, some courts have disposed of the cases on qualified immunity grounds, holding that a right to protection while in foster care was not clearly established. See, e.g., Estate of Cooper ex rel. Cotturo v. Montgomery County Office of Children & Youth, 1993 WL 477084 (E.D. Pa. 1993), affd., 30 F.3d 1485 (3d Cir. 1994); Eugene D. ex rel. Olivia D. v. Karman, 889 F.2d 701 (6th Cir. 1989), cert. denied, 496 U.S. 931 (1990); Doe v. Bobbitt, 881 F.2d 510 (7th Cir. 1989), cert. denied, 495 U.S. 956 (1990); Coker ex rel. Coker v. Henry, 813 F. Supp. 567 (W.D. Mich. 1993), affd., 25 F.3d 1047 (6th Cir. 1994); Lintz v. Skipski, 807 F. Supp. 1299 (W.D. Mich. 1992), affd., 25 F.3d 304 (6th Cir.), cert. denied, 115 S. Ct. 485 (1994). A few courts have distinguished cases involving voluntary foster care as not giving rise to a governmental duty of protection. See, e.g., Milburn v. Anne Arundel County Dept. of Social Servs., 871 F.2d 474 (4th Cir. 1989); Pfoltzer v. County of Fairfax, 775 F. Supp. 874 (E.D. Va. 1991), affd., 966 F.2d 1443 (9th Cir. 1992).
225. See supra notes 173-89 and accompanying text. A large number of jurisdictions have considered and rejected the claim that students in public schools are in custody within the meaning of the Due Process Clause. See, e.g., Graham v. Independent Sch. Dist., 22 F.3d 991 (10th Cir. 1994) (finding school officials not liable for injuries to students by fellow students); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729 (8th Cir. 1993) (finding school officials not liable for sexual assault of mentally retarded boy by another student in the boys' shower); Maldonado v. Josey, 975 F.2d 727 (10th Cir. 1992) (finding school officials not liable for choking death of child in cloakroom of school), cert. denied, 113 S. Ct. 1266 (1993); D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364 (3d Cir. 1992) (finding compulsory school attendance is not analogous to custody, and state did not create or increase the danger giving rise to the injury), cert. denied, 113 S. Ct. 1045 (1993). But see Waechter v. School Dist., 773 F. Supp. 1005 (W.D. Mich. 1991) (denying dismissal of due process claim when student died of cardiac arrhythmia following "gut run" imposed by teacher as punishment); Pagano v. Massapequa Pub. Schs., 714 F. Supp. 641 (E.D.N.Y. 1989) (denying motion to dismiss when plaintiff had suffered 17 incidents of physical and mental injury by other students, and school officials failed to end the abuse).
226. See City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239 (1983).
227. See Youngberg v. Romeo, 457 U.S. 307 (1982).
228. See Estelle v. Gamble, 429 U.S. 97 (1976).
229. 444 U.S. 277, rehg. denied, 445 U.S. 920 (1980). In Martinez, the Court ultimately rejected a claim seeking to hold the government liable under the Due Process Clause for the death of a citizen at the hands of a parolee. The Court decided the case on causation grounds without facing the constitutional issue. The Court, however, left open the question whether a parole officer could, under some circumstances, be held liable for the injury-causing behavior of a parolee. The Court noted that in the extant case "the parole board was not aware that [the victim] faced any special danger." 444 U.S. at 285.
230. The scope of liability in the constitutional "special relationship" cases was significantly broader than the scope of liability defined by common law special relationships. In the leading case, Jensen v. Conrad, 747 F.2d 185 (4th Cir. 1984), cert. denied, 470 U.S. 1052 (1985), the court noted that a "special relationship" could arise if, for example, the government had expressly indicated its intent to protect, or the government merely had knowledge of the risk of harm. See 747 F.2d at 194 n.11.
231. See, e.g., Balistreri v. Pacifica Police Dept., 855 F.2d 1421, 1425-26 (9th Cir. 1988), revd. in light of DeShaney, 901 F.2d 696 (9th Cir. 1990); Estate of Bailey ex rel. Oare v. County of York, 768 F.2d 503, 510-511 (3d Cir. 1985); Jensen, 747 F.2d at 190-94 & 194 n.11 (dicta). But see Wideman v. Shallowford Community Hosp., 826 F.2d 1030, 1034-37 (11th Cir. 1987); Harpole v. Arkansas Dept. of Human Servs., 820 F.2d 923, 926-27 (8th Cir. 1987); DeShaney v. Winnebago County Dept. of Social Servs., 812 F.2d 298 (7th Cir. 1987), affd., 489 U.S. 189 (1989); Estate of Gilmore v. Buckley, 787 F.2d 714, 720-23 (1st Cir.), cert. denied, 479 U.S. 882 (1986).
232. See DeShaney, 489 U.S. at 197-98 & n.4.
233. The duty of protection in this context is quite modest. The lower courts have held that prison officials are not liable for mere negligence; liability attaches only if they are "deliberately indifferent" to the risk of injury. In addition, the responsibility to provide medical treatment is limited to "serious medical needs." See, e.g., Murphy v. Walker, 51 F.3d 714, 717, 719 (7th Cir. 1995).
234. There is also a sense in which the custody cases do not need a resource-allocation rationale: the duty to protect in custodial settings has the normatively powerful rationale, captured in cases like City of Revere v. Massachusetts General Hospital, 463 U.S. 239 (1983), and Youngberg v. Romeo, 457 U.S. 307 (1982), that the government may not restrain an individual's ability to care for herself and then fail to provide her most basic human needs. But, when that rationale is pushed outside the custodial setting, as the plaintiffs in DeShaney tried to do, there is the need for a theory to explain why some cases result in liability and some do not.
235. See DeShaney, 489 U.S. at 199-200.
236. See, e.g.. Estate of Bailey ex rel. Oare v. County of York, 768 F.2d 503, 510-11 (3d Cir. 1985); Jensen v. Conrad, 747 F.2d 185,190-94 & n.11 (4th Cir. 1984), cert. denied, 470 U.S. 1052 (1985).
237. See, e.g., Balistreri v. Pacifica Police Dept., 855 F.2d 1421, 1425-26 (9th Cir. 1988), revd. in light of DeShaney, 901 F.2d 696 (9th Cir. 1990).
238. See DeShaney, 489 U.S. at 197-98.
239. See supra notes 173-89 and accompanying text.
240. See Paul v. Davis, 424 U.S. 693, 701 ("[A] reading" that would regard every injury perpetrated by the government as a violation of Due Process "would make of the Fourteenth Amendment a font of tort law . . . ."), rehg. denied, 425 U.S. 985 (1976); see also Daniels v. Williams, 474 U.S. 327, 332-33 (1986) (holding that due process claims require more than negligence); Parratt v. Taylor, 451 U.S. 527, 538 (1981) (holding that the existence of an adequate state remedy forecloses certain substantive due process claims).
241. The DeShaney opinion states: [T]he 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. . . . If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them. See DeShaney, 489 U.S. at 196-97. Judge Posner, who wrote the lower court opinion in DeShaney, expressed the "slippery slope" concern in an earlier case, Jackson v. City of Joliet, 715 F.2d 1200, 1204 (7th Cir. 1983) ("The next case if this one succeeds will be one where the police and fire departments, maybe because of budget cuts, do not arrive at the scene of the accident at all."), cert. denied, 465 U.S. 1049 (1984).
242. A similar argument has been made in the context of prosecutorial immunity. See Imbler v. Pachtman, 424 U.S. 409, 425 (1976) ("[S]uits [for malicious prosecution] could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the state's advocate. . . . Moreover, suits that survived the pleadings would pose substantial danger of liability even to the honest prosecutor.").
243. This is one reason for the Court's move away from subjective bad faith as an element of the qualified immunity defense. See Harlow v. Fitzgerald, 457 U.S. 800, 815-19 (1982).
244. See Imbler, 424 U.S. at 424-25.
245. A number of scholars have argued that the Supreme Court's general approach to tortlike due process claims has been to narrow the scope of the right in order to limit the reach of the remedy. See, e.g., Henry Paul Monaghan, Of "Liberty" and "Property," 62 CORNELL L. REV. 405 (1977).
246. See supra notes 115-23 and accompanying text.
247. The federal courts also have granted structural-injunctive relief guaranteeing minimally adequate treatment to involuntarily confined mental patients. See, e.g., Welsch v. Likins, 550 F.2d 1122 (8th Cir. 1977); Donaldson v. O'Connor, 493 F.2d 507 (5th Cir. 1974), revd. on other grounds, 422 U.S. 563 (1975); Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), affd. in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). At least one court has intervened in the foster care context. See LaShawn A. ex rel. Moore v. Kelly, 990 F.2d 1319 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 691 (1994).
248. See generally Fletcher, supra note 105, at 683-91.
249. See Hutto v. Finney, 437 U.S. 678, 687 (1978) (permitting a district court order limiting to 30 days the time spent in punitive "isolation" in light of the "long and unhappy history of the litigation" and as a way of insuring "against the risk of inadequate compliance").
250. See Rhodes v. Chapman, 452 U.S. 337, 341, 347-50 (1981) (reversing a district-court order that would have prohibited double-celling in an otherwise "topflight, first-class facility"); Bell v. Wolfish, 441 U.S. 520 (1979) (reversing a detailed remedial order that would have required a four-year-old prison to change a number of its practices). In Bell, the Court warned that the judiciary should not become "enmeshed in the minutiae of prison operations" and noted that the "wide range of 'judgment calls' that meet constitutional and statutory requirements are confided to officials outside of the Judicial Branch of Government." 441 U.S. at 562.
251. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 16 n.12 (1981) (dismissing a class action suit brought on behalf of mentally retarded residents of a state institution without reaching the constitutional question and noting that "this Court has never found that the involuntarily committed have a constitutional 'right to treatment,' much less the voluntarily committed"). See generally Fletcher, supra note 105, at 688-91.
252. See Missouri v. Jenkins, 495 U.S. 33 (1990) (affirming a circuit court holding that the district court supervising a desegregation remedy may authorize a school board to submit a levy to the state tax-collection authorities and enjoin the operation of state laws hindering the school district from adequately funding the remedy).
253. For critical or cautionary views of structural reform litigation, see generally DONALD L. HOROWITZ, THE COURTS AND SOCIAL POLICY (1977);
254. Colin S. Diver, The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions, 65 VA. L. REV. 43 (1979);
255. Gerald E. Frug, The Judicial Power of the Purse, 126 U. PA. L. REV. 715 (1978);
256. Paul J. Mishkin, Federal Courts as State Reformers, 35 WASH. & LEE. L. REV. 949 (1978);
257. Robert F. Nagel, Separation of Powers and the Scope of Federal Equitable Remedies, 30 STAN. L. REV. 661 (1978).
258. For more favorable views, see generally Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281 (1976);
259. Abram Chayes, The Supreme Court, 1981 Term - Foreword: Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4 (1982);
260. Fiss, supra note 122; Fletcher, supra note 105; Rudenstine, supra note 122; David Rudenstine, Judicially Ordered Social Reform: Neofederalism and Neonationalism and the Debate over Political Structure, 59 S. CAL. L. REV. 449 (1986).
261. See generally GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? (1991); see also generally HOROWITZ, supra note 227.
262. In this regard, it is worth noting that in the one context where the Supreme Court has clearly permitted failure-to-protect liability - the custodial setting - it also has permitted structural relief. But in the law-enforcement context, where the Supreme Court disallowed structural remedies, see City of Los Angeles v. Lyons, 461 U.S. 95 (1983); Rizzo v. Goode, 423 U.S. 362 (1976), the federal courts also have eschewed failure-to-protect claims. The courts' reasoning for disallowing both kinds of relief in the latter context was to avoid micromanaging political decisions about the allocation and distribution of state and local law-enforcement resources. See, e.g., Lyons, 461 U.S. at 113 (holding that federal courts should avoid using structural injunctions to "oversee the conduct of law enforcement authorities on a continuing basis"); Jackson v. City of Joliet, 715 F.2d 1200, 1204 (7th Cir. 1983) ("The next case if this one succeeds will be one where the police and fire departments, maybe because of budget cuts, do not arrive at the scene of the accident at all."), cert. denied, 465 U.S. 1049 (1984).
263. See supra notes 223-24 and accompanying text.
264. See, e.g., Missouri v. Jenkins, 115 S. Ct. 2038 (1995); Milliken v. Bradley, 433 U.S. 267 (1977).
265. Eaton & Wells, supra note 8, at 129.
266. See supra notes 69-72 and accompanying text (discussing influence of common law on § 1983 jurisprudence). The Supreme Court could perhaps be faulted, in this regard, for discussing cases such as DeShaney in terms of constitutional rights rather than constitutional remedies.
267. See Anderson v. Creighton, 483 U.S. 635 (1987); Harlow v. Fitzgerald, 457 U.S. 800 (1982). See generally Richard H. Fallon, Jr. & Daniel J. 'Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731 (1991) (arguing that qualified immunity, like other doctrines based on the jurisprudence of "new law," is best located within the law of remedies).
268. See Harlow, 457 U.S. at 813-817.
269. See Owen v. City of Independence, 445 U.S. 622 (1980); Monell v. Department of Social Servs., 436 U.S. 658 (1978).