The Court ruled that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.”4 Because the Constitution does not impose an affirmative obligation for “governmental aid,” the State’s inaction in the face of threatened harm from another source generally does not violate the strictures of the Due Process Clause.’ Thus, the Court insisted that there was no abuse of government power in Wisconsin’s failure to save a young child who was in the state’s child protection system from his father’s violence.
Chief Justice Rehnquist’s opinion, however, introduced two caveats into its polarized schematic. The first is the so-called “special relationship” exception to the rule of no entitlement to governmental protection.’ Thus, the government may acquire affirmative constitutional duties of protection under certain limited circumstances: “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.”8 The Court cited examples of incarceration or involuntary civil commitment “or other similar restraint of personal liberty
The second implicit exception to the no-duty rule arises from the following language in DeShaney: While the State may have been aware of the dangers 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. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual’s safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.”°
These words were the genesis of what is called the state-created danger doctrine, which is the subject of this Article.1 In the years since 1989, most of the circuits have accepted the state-created danger doctrine in fact situations as diverse as the police intervening to arrest a driver and then abandoning his passenger, a young woman who was subsequently raped, in a high crime area; 2 or school officials suspending a suicidal special educational student and driving him home in the middle of the day without informing his parents. 3
In expressing their understanding of the state-created danger doctrine, many courts of appeals echo the words of a Seventh Circuit opinion written before DeShaney.’4 Anticipating the DeShaney approach, in Bowers v. DeVito, 5 Judge Posner contrasted the Constitution as “a charter of negative liberties,” which “tells the state to let people alone,” to any claim that the Constitution contains affirmative duties “to provide services, even so elementary a service as maintaining law and order.”‘ 6 However, even with this view, he conceded that a different result is obtained where the state crossed the line from inaction to action: We do not want to pretend that the line between action and inaction, between inflicting and failing to prevent the infliction of harm, is clearer than it is. If the state puts a man in a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.17