No Duty to Protect: Two Exceptions
By L. Cary Unkelbach, Assistant County Attorney Representing the Arapahoe County Sheriff's Office, Centennial, Colorado
Law enforcement generally does not have a federal constitutional duty to protect one private person from another. For example, if a drunk driver injures a pedestrian or a drug dealer beats up an informant, agencies and their officers usually would not be liable for those injuries because there was no duty to protect.
Nonetheless, agencies need to be aware of two exceptions, referred to as the special-relationship and the state-created danger theories, which, if pled and proven, may establish a constitutional duty to protect by police. While plaintiffs who are harmed by third parties often raise both theories when they sue police, the state-created danger exception appears to be litigated more frequently than the special relationship exception, which often is more easily analyzed and defined.
Since its 1989 holding that a duty to protect generally does not exist, the U.S. Supreme Court has not directly spoken on the two exception theories that have since evolved.1 Instead, many federal courts have analyzed, defined and applied these exceptions to a variety of fact patterns. Not all of these lower court decisions are consistent with one another. Agencies, in reviewing their policies, should be aware of the approaches taken by the federal courts in their circuit. This article gives a brief overview of the different judicial approaches to a federal due process claim but does not address whether a failure to protect action could be brought under state law.
Special Relationship
The Due Process Clause of the Fourteenth Amendment forbids the government to deprive individuals of life, liberty, or property without "due process of law."2 In 1989 the U.S. Supreme Court stated, "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."3 Generally, the Due Process Clause does not provide an affirmative right to government aid, "even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual."4
Those pronouncements came in a case where the Court held that there was no substantive due process violation by caseworkers when a child, formerly in department of social services custody, was returned to and later beaten by his father. Caseworkers had received complaints about the father and may have known that the child was in danger. In analyzing the facts, the Court noted that there was no special relationship between Social Services and the child, as the latter was not in its custody. The Court further noted that the state had not created the danger or done anything to place the child in more danger.5 The harm to the child was inflicted not by the state but by the child's father. "The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them."6
When considering whether law enforcement has a duty to protect, first ask if a special relationship exists. If a suspect is taken into custody by law enforcement, a duty to protect -be it at the scene, during transport, or at the jail-exists.7 The majority of courts require a person to be in physical custody of police before that person has a special relationship with police. However, the Sixth Circuit held that police had a duty to protect a woman where she was effectively in custody when she was threatened with arrest and placed involuntarily in her boyfriend's car.8 The Ninth Circuit held that the government created a special relationship with a noncitizen by paroling him into federal custody as a government witness.9 One federal district court has held a special relationship between the state and a confidential informant existed, and thus there was a duty to protect.10
Courts have rejected the existence of a special relationship in the following situations: between a county and an ex-wife when the sheriff failed to serve her ex-husband with an order of protection;11 between police and a girlfriend when police made a promise to her that her boyfriend would be kept in jail overnight;12 and between a man and police, who went to his home to place him on a mental health hold and then waited downstairs while the man (who was not in the officer's physical custody) went upstairs to get "something" and jumped out a window, thereby killing himself.13
State-Created Danger
Even if there is no special relationship between a person and police, a duty to protect may still exist if the person has been harmed by a third party and can prove the state-created danger theory. This theory has been litigated in a variety of contexts, including those involving motorists and passengers, government and citizen undercovers, rescues by third parties and prevention of rescues, failure to arrest, and failure to serve orders.
Most circuit courts analyze the issue of whether the state-created danger theory is applicable by examining if officers left the individual in a situation that was more dangerous than the one in which they found him, by creating a previously nonexisting danger or increasing the danger. For example, an intoxicated bar patron, who was ejected by police late at night into subfreezing temperatures wearing only jeans and a T-shirt, and was prevented from returning to the bar or driving his truck, made a failure-to-protect claim.14 As the Sixth Circuit said, "The question is not whether the victim was safe during the state action, but whether he was safer before the state action than he was after it."15
At least three circuits have set forth specific tests to determine if a state-created danger exception exists. The Third Circuit requires the plaintiff to show that (1) the harm ultimately caused was foreseeable and fairly direct, (2) the state actor willfully disregarded plaintiff's safety, (3) there existed some relationship between the state and the plaintiff, and (4) the state actors used their authority to create an opportunity that otherwise would not have existed for the third party's crime to occur.16
