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State not liable for criminal’s actions

No matter how negligent a government is in releasing a criminal, his subsequent victims don’t have a civil rights claim against the government.

Instead, according to a Sept. 15 opinion by U.S. District Judge Charles N. Clevert, Jr., the victims can only pursue state law claims in negligence.

After Frank Moore II was murdered by Sidney Gray, who was in the process of burglarizing the home next door to Moore’s, his family brought a Section 1983 suit against the city of Milwaukee and Milwaukee County.

According to the facts alleged in the complaint, Gray was arrested by Milwaukee police officers at least 35 times on 77 charges between 1996 and 2006, many involving assaultive and violent attacks.


In June 2006, a judge civilly committed Gray. Nevertheless, a week later, the county mental health complex released him. The next day, he was arrested for criminal trespass in Milwaukee.

However, on July 9, he was released, because the city’s police department failed to take the complaint to the county to be numbered and then filed in state court.

Eight days later, he was arrested by Milwaukee police officers — again for home invasion.

Again, charges were not filed, and on July 21 or 22, Gray was released.

On July 22, Gray shot Moore in the head, killing him, during yet another burglary.

Due Process Claim

Moore’s family filed suit against the city and county, alleging that they violated Moore’s substantive due process rights by placing Moore in a position of danger that he would not have faced otherwise. They also alleged state law claims of negligence and wrongful death.

But Judge Clevert dismissed the civil rights claim, and declined to exercise supplemental jurisdiction on the remaining state law claims.

As a general rule, the Due Process Clause does not require the state to protect its citizens from private actors. DeShaney v. Winnebago County Dep’t. of Soc. Servs., 489 U.S. 189, 195 (1989).

The family contended that the facts of this case fit into the state-created danger exception, which applies when the state “affirmatively places a particular individual in a position of danger the individual would not otherwise have faced.”

However, Judge Clevert disagreed.

Narrow Exception

The Seventh Circuit has interpreted the exception narrowly, finding it satisfied in only one case, Reed v. Gardner, 986 F.2d 1122(7th Cir. 1993).

In Reed, the police arrested a driver, and knowing her passenger was intoxicated, left him in the car with the keys; the intoxicated passenger then drove the car and killed two people two hours later.

The Seventh Circuit found that the occupants of automobiles on Illinois Route 130 within a few hours of the stop were foreseeable victims, concluding “Some dangers are so evident, while their victims are so random, that state actors can be held accountable by any injured party.” Reed, 986 F.2d at 1127.

However, Judge Clevert concluded that, even taking the family’s allegations as true, Reed is distinguishable on proximate cause grounds.

“As a matter of law, county mental health complex officials could not have anticipated when they released Gray on June 20, 2006, the following events: one month later he would be unmedicated and would acquire a gun; he would break into a house and have the gun on him; a neighbor would investigate the break in; and Gray would shoot the neighbor,” Clevert wrote. “The links of this chain of events are simply too weak regarding time, location, victim, and type of harm.”

One among Many

Clevert also found that Moore was not part of a small, defined group of potential victims: “Moore, one lone man among tens of thousands of people on Milwaukee’s north side, who was killed because he lived next door to a house that Gray invaded, was not a foreseeable victim.”

Clevert held that Gray’s crime was “unpredictable rather than legally foreseeable.”

Moore’s family compared Gray’s release from custody to the “release of a mad dog in a shopping mall,” but Clevert found the harm that befell Moore too remote from the governments’ actions to establish proximate cause.

Finally, Clevert found that the governmental actions were not so shocking to the conscience as to evince deliberate indifference to Moore’s rights.

Clevert concluded, “while the two municipalities and their various departments may not have been working efficiently or communicating sufficiently, the complaint fails to assert facts exhibiting deliberate indifference to the rights of any Milwaukee residents. Although the asserted facts suggest negligence, that is not enough.”

The federal claim dismissed, Clevert declined to exercise jurisdiction over the state law claims.

Attorney Michael J. Watton, of Watton Law Group in Milwaukee, who represents the family, said they are contemplating an appeal at this time.

“What’s really bad,” he said, “apart from the lack of remedy, is that the governments have no incentive to change their procedures, so this can happen again.”

Watton noted that, without a civil rights claim, the damages for a negligence action are capped at $50,000, without any fee-shifting provision.

The case is Buchanan-Moore v. City of Milwaukee, et al., No. 07-C-0730

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