In certain limited circumstances, a state actor can be found to have a constitutional duty to protect citizens from injuries inflicted by private persons. 2 To illustrate such circumstances, consider the following two hypothetical situations. First, a delusional crack addict known as “MC” had been terrorizing a neighborhood through vandalism and random physical beatings. 3 In the course of his terrorism, MC often carried a loaded handgun and threatened residents with it. Local law enforcement was well aware of MC’s dangerous propensities. Unfortunately, so was Mary Wells. Mary was a resident of this neighborhood and often found herself terrorized and threatened by MC. Mary had notified the police of this menace during four separate 911 calls over the course of three months. Although Mary always gave the responding police officers the location of MC’s hideout, a well-known crack house down the block, the officers would always refuse to look into the matter. Instead, the responding officers would routinely state, “We don’t have time to babysit you-you won’t get hurt or shot by MC.” The officers never exited their squad cars during their brief, five-minute visits. Tragically, MC shot Mary shortly after the fourth 911 call she had placed for police assistance.
A. The Theory of Government Liability Under § 1983 The Fourteenth Amendment 17 and 42 U.S.C. § 198318 impose liability when a person deprives another of a constitutional right while acting “under color of a [state] statute, ordinance, regulation, custom or usage.”19 In order to state a valid claim under § 1983, an injured party must prove: (1) deprivation of a right secured by the United States Constitution; (2) deprivation by a party acting “under color” of state law; and (3) state action.20 However, § 19 83’s statutory scheme does not create any per se substantive rights.21 Rather, § 1983 acts as a conduit through which injured persons can seek relief for violations of their substantive rights guaranteed under the United States Constitution or federal statutes. 2