Hannah Behar | The State-Created Danger Doctrine
INTRODUCTION
In 1989, the Supreme Court found in DeShaney v. Winnebago County Department of Social Services that State officials have no obligation to protect private citizens from violence or injury caused by other private citizens. DeShaney v. Winnebago Cnty. Dept. of Soc. Services, 489 U.S. 189, 194 (1989) (finding county authorities not liable when a child in its custody was seriously injured by his father). Writing for the Court, Chief Justice Rehnquist explained the Due Process Clause limits a state’s power to deprive individuals of “life, liberty, and property without due process,” but does not create an affirmative duty to protect individuals. Id. at 194, (quoting U.S. Const. amend. XIV, § 1). Thus, state actors cannot be held liable for harm caused to private citizens under 42 U.S.C. § 1983. However, in DeShaney, the Court identified two possible exceptions in which a private citizen may be entitled to protection. The first, known as the Special Relationship Exception, is often applied when a state incarcerates, institutionalizes, or restrains a person involuntarily. DeShaney, 489 U.S. at 198-99; see Christopher M. Eisenhauer, Police Action and the State-Created Danger Doctrine: a Proposed Uniform Test, 120 DICK. L. REV. 893 (2016).
The other exception, which will be discussed here, is known as the State-Created Danger Doctrine. This doctrine grew from a few lines of dicta in DeShaney:
While the State may have been aware of the dangers that [the victim] faced in the free world, it played no part in their creation, nor did it do anything to render [the victim] any more vulnerable to them . . . it placed [the victim] in no worse position than that in which he would have been had it not acted at all[.]
489 U.S. at 201. The State-Created Danger Doctrine is subject to a range of interpretations, but it is generally used to impose liability when a state creates (or acts with deliberate indifference to) dangerous conditions that harm a private citizen. See Laura Oren, Safari into the Snake Pit: The State-Created Danger Doctrine, 13 Wm. & Mary Bill Rts. J. 1165 (2005). Subsequent precedent from the Court states that such conduct must go beyond mere negligence. Daniels v. Williams, 474 U.S. 327, 328 (1986). Some courts, such as the Fourth Circuit, take a narrow approach and rarely find the state liable. Others, including the Tenth Circuit, have a broad understanding of the doctrine and when state liability may be imposed. While most Circuit Courts recognize the State-Created Danger Doctrine in some form, the First, Fifth, and Eleventh Circuits have not adopted the exception. Here, the Fifth Circuit’s recent decision in Fisher v. Moore, 73 F.4th 372 (5th Cir. 2023), will be used to examine this split and address the issue of whether the courts should adopt the State-Created Danger Exception.
ISSUE
Should courts adopt the State-Created Danger Exception to the general rule that the government has no due process duty to protect people from privately inflicted harm?
The Fifth Circuit
While most Circuits quickly adopted the State-Created Danger Doctrine following the DeShaney decision, the Fifth Circuit declined to do so. One early opportunity was presented in Leffal v. Dallas Independent School District, a case in which a boy was shot and killed at a school-sponsored dance. 28 F.3d 521, 522 (5th Cir. 1994). Since then, the Fifth Circuit has passed on other opportunities but has also implied that it may adopt the exception given the right set of facts. See Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1405 (5th Cir. 1996). The Court has also set out elements it may use if such a case were to arise:
[A] state actor is held accountable for foreseeable injuries when it creates or permits a dangerous situation . . . The majority distills three elements that constitute the state-created danger doctrine . . . The first element is whether the environment was dangerous. The second is whether the state actors knew the environment was dangerous. The final element is whether the state actors created an opportunity that would not otherwise have existed for the injury to transpire.
Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 (5th Cir. 1994) (Goldberg, J., dissenting); Scanlan v. Texas A&M U., 343 F.3d 533 (5th Cir. 2003). Most recently, in Fisher v. Moore, the Fifth Circuit again declined to adopt the State-Created Danger Doctrine. 73 F.4th at 375. In this case, a public-school student—a girl with mental and physical disabilities, who required supervision at all times for her safety—was sexually assaulted on multiple occasions by a student with “known violent tendencies” while they were left unsupervised. Id. at 368. The school was not held liable, and the Court cited multiple reasons for its decision to forgo the State-Created Danger Exception. Id. at 375. Primarily, the Court contended that the plaintiff failed to fully explain the contours, elements, or potential application of the doctrine they argued should be established. Id. at 373. The Court also pointed to the Supreme Court's “recent forceful pronouncements signaling unease with implied rights not deeply rooted in our Nation's history and tradition.” Id. at 369.
Despite these arguments by the majority, the Court expressed openness to someday establishing the doctrine, stating: “[T]hough we repeat today that the state-created danger doctrine is not clearly established in our circuit, we have not categorically ruled out the doctrine either.” Fisher v. Moore, 73 F.4th at 372. Judge Wiener took a stronger stance in his concurring opinion, contending that “it is well past time for this circuit to be dragged screaming into the 21st century by joining all of the other circuits that have now recognized the state-created danger cause of action.” Id. at 367 (Wiener, J., concurring). Thus, Fisher v. Moore can be interpreted as the Fifth Circuit’s clearest signal to date that it may join the other Circuits in adopting the State-Created Danger Doctrine, at least in narrowly defined circumstances that hew closely to Court precedent.
The Second Circuit
The Second Circuit was among the first to adopt the State-Created Danger Doctrine. The doctrine was raised in Dwares v. City of New York, in which police officers allegedly conspired with skinheads, allowing them to injure the plaintiff with impunity. Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993). The Court found that the officers’ actions were affirmative in that they “increased the likelihood” of the harm and made the plaintiff more vulnerable to assault in violation of the plaintiff’s due process rights. Id.
A later case, Pena v. DePrisco, also focused on the distinction between affirmative and passive actions that cause harm. 432 F.3d 98 (2d Cir. 2005) (pedestrians killed by an off-duty police officer, who was intoxicated due to heavy drinking with fellow police officers). Here, the Court found that even implicit conduct could be considered “affirmative” action. Id. at 115. This interpretation was upheld in Okin v. Village of Cornwall-On-Hudson Police Dept., in which the Court stated “repeated, sustained inaction” might “rise to the level of an affirmative condoning of private violence, even if there is no explicit approval or encouragement.” 577 F.3d 415, 428. Further, the Court found that the officers in question would not be entitled to qualified immunity. Id. at 437. The Second Circuit’s State-Created Danger Doctrine is thus relatively permissive compared to the other Circuits.
The Third Circuit
In the Third Circuit, the Court used the case of Kneipp v. Tedder to establish the State-Created Danger Doctrine. 95 F.3d 1199, 1207 (3d Cir. 1996) (police officers separated a highly intoxicated couple as they were walking home at night, and the wife was later found with hypothermia and permanent brain damage). In this case, the Court framed their inquiry as asking “whether the state actors involved affirmatively acted to create plaintiff's danger, or to render him or her more vulnerable to them.” Id. at 1207 (quoting D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1373 (3d Cir. 1992)). The Court’s test was further explained in Bright v. Westmoreland County, although the substance of the test established in Kneipp v. Tedder remained largely unchanged:
(1) the harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degree of culpability that shocks the conscience;
(3) a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant's acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state's actions, as opposed to a member of the public in general; and
(4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.
443 F.3d 276, 281 (3d Cir. 2006). Here, the Third Circuit’s emphasis on the relationship between the state actor and the plaintiff and the use of authority in creating the danger is worth noting. This makes for a slightly narrower application of the State-Created Danger Doctrine than is found in some other Circuits.
The Fourth Circuit
While the Fourth Circuit has adopted the State-Created Danger Doctrine, it takes a particularly narrow approach. In Pinder v. Johnson, the Circuit’s first application of the doctrine, the Court explained how an overly broad application could implicate a wide range of unforeseen scenarios, and “[e]very time a parolee committed a criminal act, the victims could argue the state had an affirmative duty to keep the prisoner incarcerated.” 54 F.3d 1169, 1178 (4th Cir. 1995) (Police assured the plaintiff that her former boyfriend was in custody, but he was released that night and proceeded to set her home on fire, killing her three children). As the Court argues, the State-Created Danger Doctrine could cause untold liability for the State.
More recently, in Callahan v. North Carolina Department of Public Safety, the Fourth Circuit reaffirmed its high bar for plaintiffs in state-created danger cases. 18 F.4th 142 (4th Cir. 2021) (Shift supervisor at a prison housing unit killed by an inmate who, unbeknownst to her, had warned officials he was having homicidal thoughts). The Fourth Circuit applied its test, which asks (1) if the state actor directly created or increased the risk of harm to the victim and (2) if the state actor did so directly through affirmative acts. Id. at 146. In the Fourth Circuit, failure to act does not create liability for the state actor, so the Court found that “the danger was [the inmate], and none of the defendants created that danger.” Id. at 148. In refusing to consider the State’s culpability, the Fourth Circuit seems to largely sidestep the State-Created Danger Doctrine.
The Sixth Circuit
The Sixth Circuit was relatively late in recognizing the State-Created Danger Doctrine. In Kallstrom v. City of Columbus, the Court first established factors that it would consider in assigning liability, including the concept of “special danger” that “place[s] the victim specifically at risk, as distinguished from a risk that affects the public. . ..” 136 F.3d 1055, 1066-1067 (6th Cir. 1998). In Jones v. Reynolds, multiple factors were outlined as a test that may be used to determine if the exception applies:
(1) an affirmative act by the state which either created or increased the risk that the plaintiff would be exposed to an act of violence by a third party;
(2) a special danger to the plaintiff wherein the state's actions placed the plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and
(3) the state knew or should have known that its actions specifically endangered the plaintiff.
438 F.3d 685 (6th Cir. 2006) (quoting Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir. 2003)). Since Jones v. Reynolds, the Sixth Circuit’s test has remained relatively unchanged. See R.S. by V.H. v. Lucas Cnty. Children Services, No. 22-3501, 2022 WL 17730531 (6th Cir. Dec. 16, 2022). The Sixth Circuit continues to take a balanced approach in recognizing state-created danger that arises from affirmative acts.
The Seventh Circuit
In Reed v. Gardner, a case that established the State-Created Danger Doctrine in the Seventh Circuit, the Court explains that plaintiffs may allege “state action that creates . . . a danger or renders citizens more vulnerable to a danger than they otherwise would have been.” 986 F.2d 1122, 1126 (7th Cir.1993) (Two hours after police officers declined to arrest a drunk driver, plaintiffs were injured in a crash caused by the drunk driver). The Court later established a set of criteria, as outlined in King ex rel. King v. E. St. Louis Sch. Dist. 189:
First . . . the state, by its affirmative acts, must create or increase a danger faced by an individual. Second, the failure on the part of the state to protect an individual from such a danger must be the proximate cause of the injury to the individual. Third . . . the state's failure to protect the individual must shock the conscience.
496 F.3d 812 (7th Cir. 2007). Despite the Court’s relatively permissive language of “create or increase a danger,” the “affirmative act” requirement has been a strict standard in practice. See Stevens v. Umsted, 131 F.3d 697, 704-06 (7th Cir. 1997); see also Martin v. Shawano-Gresham Sch. Dist., 295 F.3d 701 (7th Cir. 2002). In multiple cases, the Seventh Circuit has also declined to find the state liable when plaintiffs are injured through their employment, as in Witkowski v. Milwaukee Cnty., where a sheriff was shot in a courtroom. 480 F.3d 511, 513 (7th Cir. 2007) (“[S]omeone who chooses to enter a snake pit or a lion's den for compensation cannot complain . . . the state did not force him into a position of danger.”).
The Eighth Circuit
In the Eighth Circuit, Freeman v. Ferguson was the first case to raise the issue of state-created danger following the Supreme Court’s DeShaney decision. 911 F.2d 52 (8th Cir. 1990). In this case, a woman was killed by her estranged husband after police failed to enforce her restraining order. Id. at 55. The Court found “the violence . . . was not solely the result of private action, but that it was also the result of an affirmative act by a state actor. . ..” Id. at 54. Later, the Eighth Circuit developed a five-part test to determine the applicability of the State-Created Danger Exception:
(1) they were members of a limited, precisely definable group,
(2) [the government’s] conduct put them at significant risk of serious, immediate, and proximate harm,
(3) the risk was obvious or known to [the government],
(4) [the government] acted recklessly in conscious disregard of the risk, and
(5) in total, [the government’s] conduct shocks the conscience.
Hart v. City of Little Rock, 432 F.3d 801, 805 (8th Cir. 2005). It is notable that “affirmative act” is not an element included on this list. In the Eighth Circuit, there is a greater emphasis on the egregiousness of the state actor’s conduct, as seen with the reference to “conduct that shocks the conscience.” This formulation may give the Court more discretion while avoiding complications the other Circuits have faced in deciding what constitutes an affirmative act.
The Ninth Circuit
The Ninth Circuit first recognized liability from state-created danger in the case of Wood v. Ostrander, in which an officer left a woman stranded on the side of the road at 2:30 a.m. in a high crime area where she was subsequently raped. F.2d 583, 586 (9th Cir. 1989). Since then, the Ninth Circuit has developed a three-part test, in which it examines (1) if the danger was affirmatively created, (2) if the state acted with deliberate indifference, and (3) if the action results in a foreseeable injury to the plaintiff. Lawrence v. United States, 340 F.3d 952, 957 (9th Cir. 2003).
For the first part, one factor the Court will consider is whether the state actor left the person in a situation that was more dangerous than the one in which they found that person. Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir. 2006) (woman shot by her neighbor after reporting his violent behavior to the police). The Court will also consider whether the act was directed toward a specific plaintiff or the public at large. Wood v. Ostrander, 879 F.2d at 590. In recent cases, the Ninth Circuit has reiterated these considerations, as well as the basic elements of the test - affirmative conduct by the state, deliberate indifference to plaintiff's safety, and foreseeability of harm. Murguia v. Langdon, 61 F.4th 1096, 1111 (9th Cir. 2023).
The Tenth Circuit
In one of the Tenth Circuit’s first state-created danger cases, the Court supplied five elements that could be used to determine if the exception applied. Uhlrig v. Harder, 64 F.3d 567, 574 (10th Cir. 1995) (activity therapist killed by mental hospital patient). The elements include the following:
(1) [Defendant] was a member of a limited and specifically definable group;
(2) Defendants' conduct put [him] and the other members of that group at substantial risk of serious, immediate and proximate harm;
(3) the risk was obvious or known;
(4) Defendants acted recklessly in conscious disregard of that risk; and
(5) such conduct, when viewed in total, is conscience-shocking.
Id. Significantly, a few years later in Armijo By and Through Chavez v. Wagon Mound Pub. Schools, the court added another element to their test. 159 F.3d 1253, 1264 (10th Cir. 1998) (a public-school student known to have suicidal thoughts was suspended without parental notification and the student subsequently committed suicide). In this case, the Court found there could be liability for state actors if they “created the danger or increased plaintiff's vulnerability to the danger in some way.” Id. at 1263. The attention to “vulnerability” set the stage for the Tenth Circuit’s broad approach taken in later cases.
In Currier v. Doran, the Court relied on this element in finding that a social worker “created the danger or increased the plaintiff[s'] vulnerability to the danger through [his] failure to investigate the numerous bruises and allegations of abuse. . ..” 242 F.3d 905, 919-920 (10th Cir. 2001) (social worker transferred custody of a child to the father, who then killed the child). Recently, the Tenth Circuit reached a similar decision in T.D. v. Patton, another child custody case. 868 F.3d 1209 (10th Cir. 2017) (A child was severely injured after social workers sent them to live with a sex-offender father). While the Court followed the State-Created Danger Test outlined in Circuit precedent, there was some concern that the Court had gone too far in assigning liability to state actors, and social workers in particular. Id. (Brisco, J., concurring). In his opinion, Judge Brisco wrote, “This rule makes the state the permanent guarantor of a child's safety. The Supreme Court has told us that substantive due process does not reach so far.” Id. (Brisco, J., concurring).
The D.C. Circuit
The D.C. Circuit did not adopt the State-Created Danger Doctrine until 2001. Due to this delay, it was able to assess the efforts of the other Circuits and take a measured approach in its first case. Butera v. D.C., 235 F.3d 637, 651 (D.C. Cir. 2001). In this case, a young man was killed while acting as an undercover operative for a police investigation, and a suit was brought against D.C. police officers on behalf of the decedent. Id. at 641-643. While the D.C. Circuit found that the law was not sufficiently established at the time of the incident to hold the officers liable, it used this case to establish the Court’s test for a state-created danger. Id. at 653-654. The Court found that private individuals should be protected when “officials affirmatively act to increase or create the danger that ultimately results in the individual's harm.” Id. at 651. This decision also emphasizes that to find liability through the State-Created Danger Doctrine, state actors must display conduct “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Id. (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8 (1998)). Since this landmark case, there has been little movement in the D.C. Circuit’s interpretation.
MOVING FORWARD
In surveying the wide range of approaches to the State-Created Danger Doctrine, a complete lack of consistency is apparent. Without meaningful guidance, the Circuits have evolved their tests and approaches over time—sometimes in perplexing and inconsistent directions. Consequently, conduct by state actors that may impose liability in one jurisdiction is found acceptable elsewhere, and vice versa.
As noted in the Fifth Circuit case of Fisher v. Moore, there is also a sense of paralysis that stems from the lack of Supreme Court direction. The Fifth Circuit would perhaps be open to adopting the State-Created Danger Doctrine, but the Court is hesitant and does not want to overstep the Supreme Court’s precedent in DeShaney. Thus, there is a clear need for the Supreme Court to revisit the State-Created Danger Doctrine and provide clarity as to its application.