Dicta casts doubt on failure to protect claims

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It has never been easy to prevail on a due process claim that a government official failed to protect a citizen from a third party.

Now a Nov. 24 opinion from the Seventh Circuit casts doubt on the continued validity of one rare opinion in plaintiffs’ favor.

History

The seminal U.S. Supreme Court case, making it difficult to recover on such claims, is DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989).

In DeShaney, county welfare officials allowed a child to remain with an abusive father, even though they knew the father was abusing the child.

The Supreme Court held there was no due process claim against the officials for failing to protect the child, because they did not create the danger.

However, the Seventh Circuit recognized an exception to DeShaney, in Monfils v. Taylor, 165 F.3d 511 (7th Cir. 1998).

Monfils had called police and tipped them off to a thieving co-worker at his place of employment, repeatedly begging police not to release the tape recording of the conversation to anyone, because the thief was a violent person who would recognize his voice.

Despite promising Monfils they would not release the tape, they did so; the thief later murdered Monfils.

The Seventh Circuit held that Monfils’ estate could pursue a due process claim, because, by promising they would keep the tape secret, and then releasing it, the police created a mortal danger to Monfils.

Because police created or increased the danger to Monfils, as opposed to merely failing to take any steps to reduce a danger, the court held that Monfils had a valid due process claim.

Castle Rock

In the opinion last week, however, Sandage v. Board of Commissioners of Vanderburgh County, No. 08-1540, the Seventh Circuit suggested that Monfils may now be superseded by a subsequent U.S. Supreme Court opinion, Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).

In Castle Rock, the police refused to enforce a domestic-abuse retraining order, despite repeated demands by the woman against whose husband the injunction was directed. The husband later murdered the couple’s three children.

The Supreme Court held that, because the state had not created a property right in the enforcement of restraining orders, there could be no possible violation of the Due Process Clause.

The court reached this conclusion despite a state statute requiring police officers to use every reasonable means to enforce a valid restraining order.

Sandage v. Board

In Sandage, the case decided last week, a man named Moore was serving a four-year robbery sentence in the custody of a county sheriff, with work release privileges.

On two occasions, Sheena Sandage-Shofner called the police to report that Moore was harassing her.

After Moore killed Sandage-Shofner and two other persons, the decedents’ estates brought suit, alleging that the failure to act on the complaint and revoke Moore’s work release deprived them of their lives without due process of law.

The district court dismissed the suit, and the Seventh Circuit affirmed, in an opinion by Judge Richard Posner.

Even acknowledging that the defendants were reckless in not acting on the harassment complaints, the court concluded, “The judge was nevertheless right to dismiss the suit.

There is no federal constitutional right to be protected by the government against private violence in which the government is not complicit.”

Finding that such a right would be impractical, the court concluded that to recognize it would entangle the federal courts in deciding how much money each local government must spent on police, prosecutors, prisons, and probation and parole.

Finding the facts in this case very similar to those in Castle Rock, the court affirmed the dismissal of the case.

Valid Precendent?

Before concluding, however, the court went on to question whether or not Monfils remains valid precedent after Castle Rock.

In Monfils, the police broke a promise not to release a tape recording to a dangerous criminal. In Castle Rock, the police failed to comply with a state statute which provided, “a peace officer shall use every reasonable means to enforce a valid restraining order.”

Finding the two cases similar, Judge Posner wrote, “It is hard to see what difference there is between a statute that commands enforcement and the promise not to endanger Monfils by revealing that he was the informant. In both cases there is a commitment to protect, and if the statutory commitment is not enforceable under the Fourteenth Amendment, it is difficult to see why a promise should be.”

Posner acknowledged that, in Monfils, the police increased the danger of private violence, as opposed to merely doing nothing to prevent it.

Nevertheless, he wrote, “[A]fter Castle Rock a broken promise … may very well not be enough” to create a due process violation.

Analysis

The Court of Appeals issued dicta suggesting that Monfils may no longer be valid precedent after Castle Rock, but it is difficult to see why.

The holding in Monfils rests upon the fact that the police officers took affirmative acts that created the danger to Monfils.

In Monfils, the court described the applicable law as follows: “The court said in DeShaney, ‘While the State may have been aware of the danger that Joshua faced in the free world,

it played no part in their creation, nor did it do anything to render him any more vulnerable to them.’ From that statement courts have concluded that liability exists when the state ‘affirmatively places a particular individual in a position of danger the individual would not otherwise have faced (cites omitted).’”

At no point does the court in Sandage explain how Castle Rock changes this framework.

In Sandage, the sheriff refused to revoke Moore’s work release. However, that is an omission, not an affirmative act. In Castle Rock, the police refused to do anything to enforce a restraining order -– again, an omission, not an affirmative act.

That may or may not be a good basis for a distinction. In other contexts, an omission in the form of deliberate indifference to constitutional rights is a constitutional violation.

Nevertheless, the case law dealing with failure to protect prior to Castle Rock recognizes this distinction, and the Seventh Circuit’s dicta quotes nothing whatsoever from the Castle Rock opinion to indicate it is no longer valid.

Civil rights attorney Walter F. Kelly, of Walter F. Kelly S.C. in Milwaukee, agreed that it is a stretch for the Seventh Circuit to read Castle Rock as undermining Monfils.

Kelly noted that Castle Rock was not even about whether the state created or enhanced the danger to the citizen. “It might have been,” he said, “but the plaintiffs in Castle Rock focused on whether the state statute regarding restraining orders created a property right.”

“Judge Posner tries to analogize the statute in Castle Rock to the fact that in Monfils, the officer said he would not release the tape,&rd
quo; Kelly said, “but I don’t see it.”

Kelly cautioned, however, that, while the dicta could be dismissed as overreach on the court’s part, it could nevertheless be problematic because it could create a qualified immunity defense in future cases.

“By saying what they are saying, even in dicta, they are making the state of constitutional law regarding state-created dangers unstable,” Kelly said. “So, it could form the basis for a defendant’s qualified immunity argument that there is no clearly established constitutional right, and therefore, there can’t be liability even if the conduct does violate a constitutional right.”