Misplaced anger over precedent: The example of DeShaney

Campaign-finance regulation advocates and much of the public regard Citizens United as one of the Court's worst decisions, responsible for the electoral mess that has followed. I find this unique attention on CU strange, as the Court built on a 30+-year-old framework that treated expenditures as protected speech, recognized corporations as equal speakers with individuals, and generally rejected equalizing and preventing drown-out as compelling government interests. CU did not break much new ground, yet it has become the alpha-and-omega of bad campaign-finance doctrine.

We are seeing this play out again amid reports that Uvalde police stood around and did nothing for almost an hour while the shooting continued. Everyone points to Castle Rock v. Gonzalez as establishing the (awful) principle that police have no constitutional duty to protect from third-party harms. But as with CU, Castle Rock broke no new ground. It built on the real culprit, DeShaney v. Winnebago County, which everyone is ignoring in the Twitter debate.

Castle Rock arose from a father who kidnapped his three daughters in violation of a restraining order. Despite pleas from the mother, officers did nothing to enforce the restraining order by looking for the father or the kids. About 10 hours later, the father appeared at the police station with the girls' bodies in his truck and committed suicide-by-cop. The mother sued the department on a theory that the failure to take steps to enforce the TRO deprived her of procedural due process; a 7-2 Court rejected the claim. Scalia (for 7) said the mother lacked a protected property  interest in enforcement of the TRO because the police had inherent discretion in when and how to enforce the order and enforcement had no inherent monetary value; Souter concurred (with Breyer) to argue that enforcement of the TRO is a process and there is no due process right to an underlying process.

The real constitutional injury should have been that the girls ls were kidnapped and murdered because the police did nothing--a substantive claim for deprivation of their life and liberty, not about the failure to provide process. That is, the injury was in the result (the girls were murdered), not by the failure to provide process. But DeShaney foreclosed that claim when it held that government action, never government inaction, violates substantive due process; government failure to protect people from third-party harms cannot be the basis for an SDP claim. The plaintiff in Castle Rock tried to use PDP to get around that limitation. DeShaney did not involve cops. But it, not Castle Rock, is the source of the problem and the reason there can be no constitutional liability for the Uvalde officers' failure to act.

DeShaney established or hinted at two exceptions. It acknowledged that the government has a duty to protect those with whom it has a "special relationship," typically where government has assumed involuntary custody over a person and thus an obligation to provide for his well-being. But every circuit holds that school does not constitute such a special relationship--school officials have no affirmative duty to protect students, which necessarily means police officers have no such duty when they are called to the scene.

DeShaney also stated that the government had not created the danger to the plaintiff or done anything to make him more vulnerable to it. From this language, lower courts developed the "state-created danger" theory, imposing SDP liability where the government takes some action that creates or worsens a plaintiff's vulnerability to third-party harms. Unfortunately for the families, the 5th Circuit is the lone court of appeals to reject this theory; short of the court changing its mind or using the case to get to SCOTUS, this is a non-starter in Texas.

If it were available, I am trying to figure out whether a claim is possible. An affirmative act is required--not mere inaction of doing nothing but some affirmative steps. So standing in the hallway waiting for a key cannot state a claim, nor can the failure to transmit or act on 911 calls showing kids alive in the classroom. Reports suggest the Uvalde police affirmatively stopped parents from entering the school (including cuffing one person) and affirmatively stopped federal agents from entering the school; that could do it, although plaintiffs must show causation (that their children might have been saved had local police not stopped others from helping) and that preventing help was conscience-shocking. Some courts have found liability on an inaction-as-message theory--the failure to act sent a message to the wrongdoer that he could act with impunity; I doubt that works here, because the shooter was not aware of or reacting to the inaction.

The facts of this case keep changing, so expect to learn more. But the police-critical narrative taking hold is "police get impunity for their actions, but have no obligation to act to protect the public" makes no sense as a democratic bargain. But the second piece of that narrative derives not from Castle Rock, but from DeShaney.