State-created danger is a theory of recovery for civil rights violations under 42 U.S.C. Sec 1983.1 The theory of recovery is used against state actors, such as police, when the actor indirectly harms people by creating a danger that ultimately injures them. For example, an officer arrests a driver at night and leaves the driver’s children behind in the car. When the abandoned children are subsequently injured by others, they have been deprived of the substantive due process right to “bodily integrity.”2 However, because a private actor, such as a criminal, usually causes the ultimate injury in state-created danger claims, the courts have struggled with imposing liability on the state actor who played only an indirect role. Not only have the federal circuits divided on whether to recognize state-created danger claims, but judges within one circuit have also been sharply divided.3 The United States Supreme Court has never directly approved of the state– created danger theory of recovery.
This Article will trace the modern development of state-created danger claims and catalog the current divide between the eleven federal circuits about whether to recognize these claims. More importantly, this Article will demonstrate that this “new” theory was originally embraced by Congress more than one hundred years ago when it passed the civil rights legislation, now codified as 42 U.S.C. Sec 1983, but originally enacted as the Ku Klux Klan Act of 1871.4 This legislative history and resulting statutory language is the forgotten foundation that supports state-created danger claims. Both the legislative history and the statutory language have been completely ignored by courts that are quarreling about whether the theory has a solid legal basis. Once this original legislative foundation is recalled, it is apparent that the courts should more readily recognize state– created danger claims.
I. The Modern Development of State Created Danger Claims
A. The “Snake-Pit Cases”
Modern state-created danger theory was developed under the label “snake pit cases.” The “snake pit” label came from a colorful Seventh Circuit quote in one of the first of these cases: “If the state puts a man in a position of danger from private people 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.”5 One of the first “snake pit” cases was White v. Rochford.6 This case demonstrates the birth of the modern theory directly from the substantive due process requirements in the United States Constitution.
In White, the police arrested an adult driver for racing down the Chicago Skyway.7 The adult pleaded with police to take the three minor children passengers to the police station or at least to a phone booth. The officers refused. Instead, the police left the three children in the car abandoned on the side of the Skyway (a busy freeway). The cold of the Chicago night eventually forced the children to search for safety. Ultimately, a neighbor rescued the children, but not before they suffered significant harm from exposure to the cold.
The Seventh Circuit found that liability could be established under the Due Process Clause.8 The court relied on general Supreme Court authority regarding substantive due process: Although it would be impossible to catalogue and to describe precisely each “liberty” interest protected by the Due Process Clause, it can hardly be doubted that chief among them is the right to some degree of bodily integrity. As the Supreme Court recently stated: “Among the historic liberties so protected was a right to be free from, and to obtain judicial relief for unjustified intrusions on personal security.” Not only does the Due Process Clause restrain undue incursions on personal security, but also it restrains state activities which are fundamentally offensive to “a sense of justice” or which “shock the conscience. …