Public Health Law Map - Beta 5 - Medical and Public Health Law Site

Importantly, the DeShaney analysis applies to police protection as well as child
services. The rule is that, absent a special duty (no special duty existed in
DeShaney) a municipality will not be liable for the inaction of police in preventing
crime. A special duty to protect an individual may arise from a statute that
identifies certain groups of individuals who are owed protection, or from the
particular facts of the case. As DeShaney suggests, it is relatively uncommon that a
court will find a special duty.
State actors can be liable when the government actually creates the danger which
befalls an individual. As the Seventh Circuit has explained, "liability exists when
the state affirmatively places a particular individual in a position of danger the
individual would not have otherwise faced." Monfils v. Taylor, 165 F.3d 511 (7th
Cir. 1998). An example of this cause of action would be when a police officer
arrests an intoxicated person at night and drives him against his will to the town
limits, and later the person is hit by a while walking home along an unlit highway.
In that example, the danger to the individual of having to walk along the unlit
highway did not exist until the officer placed the individual in that position, and
can be said to be "state created."
A recent U.S. Supreme Court decision explores an issue left unanswered in
Deshaney: Whether a city is liable in a § 1983 action for not enforcing a restraining
order that, by its own terms, had to be enforced by any reasonable means. Town of
Castle Rock v. Gonzalez, 125 S.Ct. 2796 (2005). Respondent had a restraining
order issued against her estranged husband. The restraining order, as per Colorado
statute, mandated that law enforcement:
"USE EVERY REASONABLE MEANS TO ENFORCE THIS
RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST
WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK
A WARRANT FOR THE ARREST OF THE RESTRAINED PERSON
WHEN YOU HAVE INFORMATION AMOUNTING TO PROBABLE
CAUSE THAT THE RESTRAINED PERSON HAS VIOLATED OR
ATTEMPTED TO VIOLATE ANY PROVISION OF THIS ORDER" (caps
in original)
When the respondent's three children were, with no prior notice, picked up by the
husband in violation of the restraining order, she notified city police. The police
initially told her to wait until 10 p.m. After 10 p.m., police told her to wait until
midnight. At 3:20 a.m. the police still declined to get involved with the situation,
but the husband appeared at the police station with a gun and opened fire. He was
killed in the resulting fray, but the bodies of the children were found in his truck.
This situation differed from Deshaney in that respondent alleged a Fourteenth
Amendment Due Process violation of property based on the town officials’ failure
to enforce the explicitly worded restraining order (the individual officers had
already been released from the case by reason of qualified immunity). Did
Colorado grant the plaintiff a protected property interest in police enforcement of
the restraining order? The Court held that the city was not liable under § 1983
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