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more than one hundred years ago when it passed the civil rights legislation, now codified as 42 U.S.C. Sec 1983, but originally enacted as the Ku Klux Klan Act of 1871.⁴ This legislative history and resulting statutory language is the forgotten foundation that supports state-created danger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.

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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."⁹

White v. Rochford became one of a group of cases generally referred to as the "snake pit" cases.¹⁰ Collectively these cases formed a fairly well-established body of law, imposing liability on officers (or other state actors) who cast people into dangerous situations. The snake pit cases recognized that liability could only be imposed if the officers took an active role in creating or increasing the danger. ¹¹ One court that applied these cases refused to impose liability merely because police failed to stop a barroom brawl. ¹²

B. The Abortive Attempt to Impose a General Duty to Protect

A few more liberal advocates wished to take the snake pit cases one giant step further: to impose on the state a duty to rescue a person from any snake pit, even when the state played no active role in creating the danger.¹³ According to these few proponents, once the state learned of the particular danger facing an individual, the state had an affirmative duty to rescue. This theory would have wide application in domestic violence situations, when officers are called to a home but decide not to arrest or intervene. If violence were to erupt again, the police could be blamed for failing to protect the victims. The main case adopting this broader view was Estate of Bailey by Oare v. County of York.¹⁴ The Third Circuit imposed liability for failure to protect a child who officials knew was at risk of being abused.¹⁵ Finding a general duty to protect, the court stated: "A duty of protection has been found owing by the state and local entities to people who were not in custody."¹⁶

This novel "duty to protect" theory was best reflected in the 1986 University of Chicago Law Review article Actionable Inaction: Section 1983 Liability for Failure to Act.¹⁷ The author cited the "failure to protect" cases, including Estate of Bailey, and argued that there was a general "entitlement" to protection.¹⁸ If the entitlement was denied without due process, she argued, then the Constitution was violated.¹⁹ The author claimed the traditional action/inaction distinction was artificial and concluded that "when the state by its inaction has broken its own promise [to provide services], it may not escape liability by invoking an artificial distinction between action and inaction."²⁰ Hence, the name of the article: "Actionable Inaction". ²¹ This article was cited in the Seventh Circuit's opinion in DeShaney v. Winnebago County Department of Social Services,²² the Supreme Court's affirmation of which is discussed below.

C. DeShaney Put an End to a General Duty to Protect

The Supreme Court soon put an end to the theory of "actionable inaction". In DeShaney v. Winnebago County Department of Social Services ²³ a divorced father obtained custody of his son. He beat his son, Joshua DeShaney, so severely that Joshua became comatose. Melanie DeShaney, Joshua's mother, claimed that the Department of Social Services was responsible since the department had received numerous reports of repeated abuse of Joshua. She contended that the department failed to protect Joshua from his father.

In DeShaney, the Department of Social Services wanted the Supreme Court to re-establish the traditional boundary line of action versus inaction for substantive due process claims.²⁴ The department seemed to assume that liability could be imposed, but only if it had taken action that increased the danger to Joshua. If it had, the department admitted that this action would cross the constitutional boundary. Thus, at oral argument, the counsel for the Department of Social Services argued:

I believe that the important factor to be looked at is whether or not the state action can fairly be said to have increased the risk of harm to that child. If the answer to that threshold question is "yes," then I believe we have state action in a constitutional sense.²⁵

Using the traditional action/inaction boundary line, the department then argued that it had not taken action that increased the danger in that case.²⁶ It had merely neglected to rescue "poor Joshua."²⁷ It could be criticized, but not held liable for a "failure to protect."²⁸ The Supreme Court accepted the department's position and re-established the action/inaction distinction for cases in which people played no part in their creation, nor did it do anything to render him more vulnerable to them."³⁰ Thus, if the state merely fails to protect an individual there is no due process violation. Due process is a limitation on state action, not a mandate to take affirmative action.³¹ The Supreme Court identified and rejected the notion from Estate of Bailey, discussed above, that the mere notice of a danger of crime imposes an affirmative "duty to protect.",³²

While some (particularly Justices Brennan and Blackmun in their dissents) criticized the "indifferent" result of DeShaney,³³ the Court's holding was generally consistent with both traditional common law and constitutional law. Under the common law, a person can callously sit next to a life preserver and watch a person drown-there is no duty to rescue.³⁴ Similarly, the Constitution places limits on what government can do to its citizens but rarely requires that a government take affirmative action to aid citizens.³⁵ However, liability is triggered when the actor does more than "nothing."³⁶ As soon as the actor takes some affirmative step to worsen the plight of the victim, the law imposes full liability. It is one thing to stand by and watch a person slowly drown. However, when an officer threatens to arrest any person who attempts to rescue a drowning boy, the officer has done more than "nothing."³⁷  He has worsened the situation and helped create the danger that ultimately kills the boy ; he, therefore, faces liability under the "state-created danger" theory.³⁸

D. After DeShaney, Snake-Pit Cases Returned to the Original Theory, but Under a New Label

After DeShaney, the snake pit theory of liability continued to develop under the more appropriate label of "state-created danger,³⁹ a label which emphasizes state action. Thus, the impact of DeShaney was not to prohibit the snake pit theory of recovery but only to keep the theory within its original confines. The Seventh Circuit described DeShaney's impact on the prior cases:

If the defendants' employees knowingly placed [a child] in a position of danger, they would not be shielded from liability by the decision in DeShaney. All that DeShaney and the cases following it ... hold is that the Constitution does not impose a legally enforceable duty on state officers to protect people from private violence. If the officers are complicit in the violence, they are liable.⁴⁰

Immediately after DeShaney, the courts returned to the original "snake pit" theory of liability, still quoting the famous language. However, they now called the theory state-created danger. Thus, in Wood v. Ostrander ⁴¹ the Ninth Circuit faced another instance similar to the original White case, in which the police arrested a driver and refused to make any provision for the abandoned passenger.⁴² The police ordered the car towed but refused to provide the woman passenger any transportation. Instead, she was forced to walk through an area known for extremely violent crime. She was raped. The court again returned to the famous "snake pit" quote, used the new label of "state-created danger," and found that the law in this area was "well established."⁴³

II. The Divided Status of the Circuits on Recognizing State-- Created Danger

Of the eleven circuit courts of appeals, ten have addressed the issue of whether to recognize the "state-created danger" theory for Sec 1983 violations.⁴⁴ Eight circuits have adopted it. Two circuits have, in some form, rejected it. One circuit, the Fifth Circuit, has consistently side-stepped the question of whether to recognize the theory.

A. Eight Circuits Accept the State-Created Danger Theory

Of the eleven circuit courts of appeal, eight have clearly accepted the state-created danger theory. These include the Second Circuit,⁴⁵ Third Circuit,⁴⁶ Sixth Circuit,⁴⁷ Seventh Circuit,⁴⁸ Eighth Circuit,⁴⁹ Ninth Circuit,⁵⁰ Tenth Circuit,⁵¹ and Eleventh Circuit.⁵²

Significantly, in the eight circuits that have recognized the theory there have been virtually no dissents. Apparently these circuits have not experienced any unusual problems or regrets as a result of adopting the theory. This judicial experience belies the notion that recognizing the state-created danger theory will "open the floodgates" or cause unusual judicial problems.⁵³ Since state-created danger only imposes liability when police act with "deliberate indifference,⁵⁴ and engage in conduct that "shocks the conscience of the court,"⁵⁵ state-- created danger claims are reserved for only egregious cases of misconduct by state actors.

B. Two Circuits Have Rejected the Theory, But with Significant Dissension

Two circuits have, in some form, rejected the state-created danger theory, although their positions are accompanied by significant doubts and dissents. The First Circuit initially appeared to have rejected the theory in Monahan v. Dorchester Counseling Center, Inc.⁵⁶ and Souza v. Pina.⁵⁷ Later First Circuit decisions seemed unsure about this earlier rejection and appeared to question the position the court took. For example, in Soto v. Flores⁵⁸ the First Circuit sidestepped the question, stating: "The scope of any permissible section 1983 action based on a state-created danger theory is a difficult question. . . . Because we find that this claim may be resolved on immunity grounds, we choose not to reach this question."⁵⁹ In Rodriguez-Cirilo v. Garcia⁶⁰ the First Circuit again expressed its retreat from certainty by concluding:

We therefore do not reach the nettlesome legal question of whether, in light of DeShaney v. Winnebago County Dept. of Social Servs., a police officer's knowing refusal to carry out the express terms of a non-discretionary detention order can be deemed an "affirmative act" that, by increasing the risk of private harm to those sought to be protected by the order, may trigger due process concerns.⁶¹

This decision to avoid the "nettlesome question" is particularly interesting in light of the lower court's opinion in Rodriguez-Cirilo.⁶² The district court expressly recognized state-created danger, declaring, "A state may also be liable if the state actors have done anything to make the individual more vulnerable to the harms of a private actor."⁶³ In response, the First Circuit decided to avoid the "nettlesome question" and dispose of the case on a different ground.⁶⁴ It appears that the First Circuit's final ballot has yet to be marked.

The Fourth Circuit's position has been somewhat clearer but more controversial. In Pinder v. Johnson ⁶⁵ a woman's former boyfriend broke into her home and threatened her life and the lives of her three children.⁶⁶ The police responded to a call and found that the boyfriend entered the home by breaking a back window. As the woman told the officer, the man was released from prison after serving a sentence for a previous conviction for arson, after he had tried to bum her home. This time he threatened to murder them all. The officer promised the woman that the man would be jailed overnight because serious charges would be brought against the perpetrator. Also, the officer explained that the victim could not immediately come to the offices and swear out a warrant at that time since no county commissioner would be available. She would have to wait until the next morning. Relying on these promises from the officer, the woman returned to work, leaving her children at home.

The officer took the perpetrator to the police station but charged him with only two misdemeanors-trespassing and destruction of property worth less than $300. The perpetrator was released after only one hour. The officer knew of the release but made no effort to warn the mother. The perpetrator walked back to the house (only a ten-minute walk), broke into the house again, set it on fire, and killed all three children.

When suit was brought against the officer, the trial court and the initial panel of the Fourth Circuit concluded that the officer had violated "clearly established law."⁶⁷ This denied him official immunity from suit. In a rehearing en banc, five justices ruled that the state-created danger was not "clearly established law," so the officer was entitled to official immunity.⁶⁸ That is the extent of the holding of the decision in Pinder. After that, the opinion in Pinder splintered in several directions. The majority (five justices) went on to write in dicta that the state-created danger theory was either inapplicable or illfounded.⁶⁹ Several justices wrote separate concurring opinions to note that this additional language was unnecessary dicta. ⁷⁰ Four justices wrote a strong dissent stating that since state-created danger was both a valid theory and "clearly established law," the officer should be subjected to liability.⁷¹

The majority in Pinder emphasized that a private actor-the criminal-was the person who inflicted the injury, not the officer.⁷² The majority held that police could only be held liable for failing to protect people whom they take into custody.⁷³ The court strongly rejected any notion that reliance on the officer's promises to the mother (that the suspect would be jailed overnight) could serve as a basis for liability: "Promises do not create a special relationship-- custody does. Unlike custody, a promise of aid does not actually place a person in a dangerous position and then cut off all outside sources of assistance."⁷⁴

In this context, custody was embraced as the litmus test for liability. Following this logic, the police officer could have provided the matches for the criminal to set fire to the home, but still escaped liability because the children were not in police custody. It is not surprising that eight justices in the Fourth Circuit felt the need to somehow distance themselves from the majority holding by means of limited concurring opinions or outright dissents.

The majority opinion in Pinder was quickly criticized and questioned.⁷⁵ The opinion seems to mischaracterize the case as a simple failure to protect due to a failure to jail the suspect.⁷⁶ That mischaracterization forced the case into the DeShaney mold.

C. The Fifth Circuit Has Not Yet Spoken

The Fifth Circuit has not spoken on state-created danger-and its ballot is somewhat overdue. It has repeatedly avoided the question, reasoning that even if the circuit was to recognize the theory, each particular case before the court has failed to meet the criteria for state-- created danger.⁷⁷ The "decided on other grounds" approach was successively followed in Salas v. Carpenter, ⁷⁸ Lefall v. Dallas Independent School District,⁷⁹ Piotrowski v. City of Houston,⁸⁰ Randolph v. Cervantes,⁸¹ Saenz v. Heldenfels Brothers., Inc.,⁸² and Piotrowski v. City of Houston.⁸³

Meanwhile, district courts within the Fifth Circuit have decided that the Fifth Circuit has, in essence, indicated that it will recognize the theory in an appropriate case. Thus, district courts within the Fifth Circuit have expressly recognized state-created danger. The district court for the Southern District of Texas, Houston Division, for example, entered a $20 million judgment against the City of Houston under a state-created danger jury verdict in Piotrowski v. City of Houston.⁸⁴ In Piotrowski, the jury found that Houston police officers acted in complicity with a known felon who arranged a contract killing and thereby created the danger that Piotrowski would be shot by private gunmen. ⁸⁵ After she was shot and rendered a paraplegic, Houston police then covered up their own involvement and refused to arrest the person who "put out the contract" for the shooting. ⁸⁶ On appeal, the Fifth Circuit in January 2001 again found that it need not decide whether to recognize the theory, stating, "Although this court has discussed the contours of the `state-created danger' theory in several occasions, we have never adopted that theory. . . . We need not do so here, since, even if we were to adopt it, Piotrowski could not recover."⁸⁷

The Fifth Circuit appears to have taken the label "state-created danger" literally, and denied liability if the city did not create the danger in the first instance.⁸⁸ The court found that Piotrowski had already been at risk of harm from private actors.⁸⁹ Thus, even when police cooperated with the would-be killers and provided them with a packet of information that had the victim's address, make of car, and photo to help the private actors identify their target for the shooting,⁹⁰ the court decided that this action did not meet the criteria for "state-- created danger."⁹¹ Thus, instead of actually rejecting the theory, the Fifth Circuit has established a rigid criteria that could never be met. Even an intentional shooting committed with police assistance fails to meet the Fifth Circuit's standard for imposing liability.

Prior to the Fifth Circuit's recent decision in Piotrowski, one district court predicted that the Fifth Circuit would adopt the theory.⁹² In Salinas v. City of Harlingen ⁹³ the federal district court for the Southern District of Texas, Brownsville Division, refused to dismiss state-created danger claims against the City of Harlingen.⁹⁴ The City of Harlingen Police Department allegedly allowed a semi-automatic assault rifle, entrusted to the police department, to be kept by a teenager with a history of psychological problems and cocaine use. The teenager began a violent rampage. The police summoned another law enforcement officer (a Border Patrol agent) to the scene without warning him of the presence of the unusual weapon. The unsuspecting officer went to the scene oblivious of the danger. The teenager then opened fire with the assault rifle, killing the officer. His heirs brought suit against the city and its officers.

The district judge refused to dismiss state-created danger claims against the city, observing, "The [U.S. Supreme] Court . . . implied through dicta that the state may possibly owe a duty to protect if it created a danger and then does nothing to protect the plaintiff from that danger."⁹⁵ The district court concluded, "Several appellate cases include language that indicates that the Fifth Circuit would adopt the [state-created danger] exception if it were presented with an adequate factual scenario." Nonetheless, because state-created danger theory is still "unsettled," the district court granted official immunity to the individual officers.⁹⁷ All claims against individual police officers, including the officer who allowed his son to have the assault rifle, were dismissed.⁹⁸

Individuals can only be held personally liable if they violate "clearly established" constitutional rights.⁹⁹ Thus, the unsettled legal status of state-created danger theory means that an officer can knowingly place an individual in a situation where he will face imminent death at the hands of others. The officer, under traditional analysis, may enjoy official immunity because the law on state-created danger is "unclear," as evidenced by the division in the circuits.¹⁰⁰ However, courts are mistaken in focusing on the theoretical legal environment in which officers supposedly act. It is doubtful that officers who knowingly place a person in harm's way do so because they have considered the Fourth and First Circuits' rejection of state-- created danger claims. Courts should focus on whether the officers were acting in good faith in an ambiguous factual environment in accordance with the Supreme Court's approach in Anderson v. Creighton."¹⁰¹ Thus, the lack of uniformity among the courts on state-- created danger allows officers to go completely unpunished.

III. The Original Foundation of State-Created Danger Claims:
The Ku Klux Klan Act of 1871, Now Codified as 42 U.S.C. 1983

In discussing whether to recognize state-created danger, the courts appear to have forgotten the legislative history behind 1983. Not only the history but the clear wording of the statute itself embraces the state-created danger theory of holding state officials liable for "private misconduct." If the state actors cause someone "to be subjected" to private misconduct, 42 U.S.C. 1983 expressly imposes liability:

Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State. . . subjects, or causes to be subjected, any citizen... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured... ¹⁰²

The "or cause to be subjected" language in the statute was quite intentional. It was meant to address the specific situation where state officials did not actually deprive people of constitutional rights, but instead caused people to be subjected to deprivations caused by private actors. ¹⁰³

Section 1983 is the codification of a portion of the original Ku Klux Klan Act of 1871.¹⁰⁴ As the name implies, the act was aimed at activities of the Klan, a group of private actors, not at state officials. The Act was passed less than one month after President Grant delivered an urgent message to Congress that described the breakdown of law and order in the southern states due to Klan activities.¹⁰⁵ In passing the legislation, Congress made constant reference to an almost 600-page report that detailed malicious conduct by the Klan. ¹⁰⁶

If the Klan had merely been a group of private actors, its suppression would not have required federal intervention. However, in reviewing the report, it became apparent to Congress that the Klan thrived because local officials often tolerated and sometimes acted in complicity with the Klan.¹⁰⁷ Congressmen were vociferous in their attacks on local governments in the South, which had, in essence, granted refuge and "immunity" to the Klan's acts:

While murder is stalking abroad in disguise, while whippings and lynchings and banishment have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of the public tribunals are searched in vain for any evidence of effective redress.¹⁰⁸

Thus, 1983 was originally aimed at imposing liability on those people, such as local officials, who subjected people to constitutional deprivations via private misconduct, i.e. criminal acts of the Klan. With admirable foresight, Congress wrote the legislation broadly to include not only Klan-related activities but all activities done under color of state law by which people are "subjected" to deprivations of constitutional rights to life and liberty. ¹⁰⁹

In Monell v. Department of Social Services ¹¹⁰ the Supreme Court recounted the history of the Ku Klux Klan Act regarding the imposition of liability and specifically focused on the "or cause to be subjected" statutory language.¹¹¹ The Supreme Court concluded, "Congress did specifically provide that A's tort became B's liability, if B 'caused' A to subject another to a tort."¹¹² This statement implicitly embraces the imposition of liability on one person acting under color of state law for "subjecting" someone to the tort of another private actor. That theory is identical to the modem state-created danger theory of liability.

By curious coincidence, the Fifth Circuit-the one circuit that has not yet formally voted on whether to recognize state-created danger-is one of the very few courts that has specifically addressed the "or cause to be subjected to" clause in 1983. In Morris v. Dearborn ¹¹³ a teacher typed a report, supposedly at a four-year-old child's direction, stating that the child was sexually molested.¹¹⁴ The report was fabricated under the false notion that the child, who could not read or write, directed the teacher's fingers to the appropriate keys to type out the report. The report was then used by others as the basis for wrongly removing the child from his parents. When sued, the teacher replied that she had not removed the child from his family but had merely authored the report of child abuse that was used by others. The Fifth Circuit never used the term or discussed the theory of "state-- created danger.¹¹⁵ However, the court expressly accepted the fact that there is liability under 1983 for causing a person to be subjected to a deprivation at the hands of another:

The district court... stated that direct participation is not necessary for liability under 1983. Any official who "causes" a citizen to be deprived of her constitutional rights can also be held liable. The district court held that the requisite causal connection is satisfied if the defendant set in motion a series of events that the defendant knew or reasonably should have known would cause others to deprive the plaintiff of her constitutional rights. . . . We agree with the district court that in order to establish Dearborne's liability, the Plaintiffs must prove that she set in motion events that would foreseeably cause the deprivation of Plaintiffs constitutional rights. ¹¹⁶

Thus, in two non-state-created-danger cases, Monell and Dearborn, the courts have readily embraced indirect causation by returning to the statutory language of 1983. Surprisingly, none of the state-created-danger cases discuss the indirect causation clause,-the "or cause to be subjected" language of 1983. They also fail to discuss the legislative history of the Ku Klux Klan Act of 1871,¹¹⁷ which clearly indicates that liability for indirect causation was meant to be included in the statute.¹¹⁸

Applying the statutory language and legislative history of 1983, it is fairly easy to see that the Fourth Circuit's rejection of state-- created danger in Pinder ¹¹⁹ was mistaken in its approach. The majority opinion in Pinder concluded that liability could only be imposed if the victims were in the custody of the State.¹²⁰ Since the children were at home when the released felon set the fire that killed them, police liability was barred. ¹²¹ Under the Pinder court's misguided approach, even after the passage of the Ku Klux Klan Act, a Southern official could prompt the Klan to lynch a person in the community and thereby cause a person to be "subjected to" a deprivation. Nonetheless, under that mistaken approach, the state actor would escape all liability because the victim was not in police custody. This result would be absurd and would contradict the clear legislative history of the Ku Klux Klan Act of 1871.

Similarly, returning to the original legislative history of 1983, it is also clear that the Fifth Circuit Was Mistaken in Piotrowski in establishing the rigid criteria for state-created danger so that liability does not attach if the government employee only lends assistance to private actors who pose a pre-existing threat of harm to a plaintiff ¹²³ The danger presented by the Ku Klux Klan was pre-existing. ¹²⁴ The government did not create the Klan. Minorities were already threatened by the Klan before state actors took any steps. However, if local police acted in complicity with the Klan by "subjecting" people to the power of the Klan, police liability was to follow.¹²⁵

In Monell, the Supreme Court reminded the courts that 1983 is to be broadly construed because Congress intended an aggressive defense of constitutional liberties.¹²⁶ The court referred to statements that Representative Shellabarger made when passing the Act:

This act is remedial, and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally and beneficently construed. It would be most strange and, in civilized law, monstrous were this not the rule of interpretation. As has been again and again decided by your own Supreme Court of the United States, and everywhere else where there is wise judicial interpretation, the largest latitude consistent with the words employed is uniformly given in construing such statutes and constitutional provisions as are meant to protect and defend and give remedies for their wrongs to all the people.¹²⁷

IV. Conclusion

Someday the United States Supreme Court may speak directly on state-created danger and unify the circuits in recognizing state-- created danger. Until then, courts would be wise to follow the original statutory language and legislative history behind 1983, which imposes liability on those who cause another "to be subjected" to a deprivation of a constitutional right, even if that deprivation is done at the hands of private actors. Most importantly, courts should recall the original legislative intent that 1983 is to be broadly construed in order, in the words of Representative Shellabarger, "to protect and defend and give remedies for their wrongs to all the people."¹²⁸ FOOTNOTE

NOTES

1. 42 U.S.C.A. 1983 (West 2000)

"Every person who under color of any statute... of any State... subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ." 

2. The constitutional right to"bodily integrity" and "personal security" is part of the substantive due process right See White v. Rochford, 592 F.2d 381, 383 (7th Cir. 1979) (holding that because leaving children without adult protection in an abandoned automobile after the arrest of the children's uncle led to physical and emotional injuries a claim under the federal civil rights statute arose); see also Rochin v. California, 342 U.S. 165, 172 (1952) (holding that forcing a doctor to "pump" the accused's stomach in order to produce evidence was a violation of due process); Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278 (1990) (holding that the forced administration of life-sustaining medical treatment to put a patient in a vegetative state was not a violation of due process); cf Ingraham v. Wright, 430 U.S. 651, 673-74 (1976) (holding that the Due Process Clause did not require notice and a hearing prior to the imposition of corporal punishment in the public schools).

3. See, eg., Pinder v. Johnson, 54 F.3d 1169, 1175-76, 1179-82 (4th Cir. 1995) (en banc) (demonstrating that some justices did not believe that state-created danger was a "clearly established" law despite the majority's vigorous defense of its position).

4. Civil Rights Act of 1871, ch. 22, 17 Stat. 13 (1871). 

5. Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982).

6. 592 F.2d 381 (7th Cir. 1979). White is now recognized to have been a state-- created danger case. See Leffall v. Dallas Ind. Sch. Dist., 28 F.3d 521, 530 (5th Cir. 1994) (discussing White as the first case to use this terminology in the context of a review of other circuits' treatment of state-created danger claims).

7. White, 592 F.2d at 382.

8. Id. at 383-84 (finding that the Due Process Clause restrains state activities that unduly infringe on personal security and physical integrity). 

9. Id. at 383 (quoting Ingraham v. Wright, 430 U.S. 651, 673 (1976)).

10. These cases are discussed in Escamilla v. City of Santa Ana, 796 F.2d 266, 269 (9th Cir. 1986); Walker v. Rowe, 791 F.2d 507, 511 (7th Cir. 1986); and Karen M. Blum, Local Government Liability Under Section 1983, 595 PRACT. LAW INST. PLI/Lrr 61, 253 (1998).

11. See, e.g., Archie v. City of Racine, 847 F.2d 1211, 1215-16 (7th Cir. 1988), cert. denied, 489 U.S. 1065 (1989) (refusing to hold a city liable for failing to rescue a woman under a violation-of-due-process theory because the dispatcher's poor advice during an emergency did not constitute an active role in creating the emergency).

12. See Escamilla, 796 F.2d at 268-70 (holding that a state officer's inaction, as well as his affirmative acts, may be basis for civil rights claims if the behavior leads to the loss of rights secured by the Constitution or federal law).

13. See generally Estate of Bailey by Oare v. County of York 768 F.2d 503 (3d Cir. 1985); Lisa E. Heinzerling, Actionable Inaction: Section 1983 Liability for Failure to Act, 53 U. CHI. L. REV. 1048 (1986). 

14. 768 F.2d 503 (3d Cir. 1985).

15. See id. at 510-11 (holding that the agency had a duty to the child because the agency knew the child had been beaten and thus had a special relationship with him).

16. Id.

17. Lisa E. Heinzerling, Actionable Inaction: Section 1983 Liability for Failure to Act, 53 U. CHi. L. REV. 1048 (1986).

18. Id. at 1054-55 (stating that a state's duty to act arises when it places a person's life in danger).

19. See id. at 1054-55. 

20. Id. at 1073.

21. Id. at 1048 (emphasis added).

22. 812 F.2d 298, 303 (7th Cir. 1987), aff'd, 489 U.S. 189 (1989). 23. 489 U.S. 189, 191 (1989). FOOTNOTE

24. See id. at 208.

25. Mark Mingo, Respondent's Argument Before the Court in Deshaney, in MAY IT PLEASE THE COURT: THE MOST SIGNIFICANT ORAL ARGUMENTS MADE BEFORE THE SUPREME COURT SINCE 1955 at 40,45 (Peter Irons ed., 1993) (emphasis added).

26. DeShaney, 489 U.S. at 190,201. 

27. Id. 28. Id. 29. Id. 

30. Id. FOOTNOTE

31. See DeShaney, 489 U.S. at 196 ("[The Constitution's] purpose was to protect the people from the State, not to ensure that the State protected them from each other.").

32. DeShaney accepted that liability could be predicated on a failure to protect, but only if the person was in the state's custody. Liability was not imposed in DeShaney because Joshua was not in the state's custody when the attack occurred. See DeShaney, 489 U.S. at 200. Thus, Estate of Bailey by Oare is no longer considered good law. See Philadelphia Police and Fire Assn for Handicapped Children v. City of Philadelphia, 874 F.2d 156 (3d Cir. 1989) (explaining that DeShaney overruled Estate of Bailey because the court rejected the notion that when a state learns of an individual's plight and promises to help, a special relationship that obligates the state is created).

33. See DeShaney, 489 U.S. at 203 (Brennan, J. and Blackmun, J. dissenting) (stating that the state's inaction in failing to protect Joshua was a sufficient ground for a due process claim). For a full criticism of the majority opinion in DeShaney, see generally Barbara E. Armacost, Afrmative Duties, Systemic Harms, and the Due Process Clause, 94 MICH. L. REV. 982 (1996), criticizing DeShaney for finding no duty to protect because the perpetrator of the injury was not a state actor.

34. See RESTATEMENT (SECOND) OF TORTS 56 (1965); PROSSER & KEETON, THE LAw OF TORTS 378-82 (5th ed. 1984) (stating that there is no duty to go to the aid of a person in peril, only a duty to avoid acts that make the situation worse).

35. See, eg., Youngberg v. Romeo, 457 U.S. 307, 309 (1982) (holding, in the context of a case regarding a profoundly retarded boy in a state institution, that a state is under no constitutional duty to provide substantive services for those within its border); Harris v. McRae, 448 U.S. 297, 317-18 (1980) (holding that the Due Process Clause imposes no affirmative obligation to provide medical services to the public); Lindsey v. Normet, 405 U.S. 56, 74 (1972) (holding that the Due Process Clause imposes no obligation to provide adequate housing). E

36. See RESTATEMENT (SECOND) OF TORTS, supra note 34, 56; PROSSER & KEETON, supra note 34, at 378-82.

37. See Ross v. U.S., 910 F.2d 1422, 1429-34 (7th Cir. 1990) (reinstating a claim against an officer who stopped all rescuers with threats that he would arrest anyone who attempted to rescue a drowning boy, yet who failed to save the boy himself).

38. See id.

39. See Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982) (becoming the first case to employ the snake-pit language when recognizing the "state-created danger" theory).

40. Bank of Illinois v. Over, 65 F.3d 76, 78 (7th Cir. 1995) (emphasis added). 

41. 879 F.2d 583 (9th Cir. 1989). 42. See id. at 586.

43. See id. at 594. 

44. Due to the administrative-agency jurisdiction of the Federal Circuit, it should not face the question of whether to recognize state-created danger. If such a question were incidental to a case, it would defer to the relevant regional circuit. See, eg., U.S. Phillips Corp. v. Windmere Corp., 861 F.2d 695, 702 (Fed. Cir. 1988) (applying the law of the regional circuit in which the district court sits to determine both the appropriateness of a directed verdict and the antitrust law questions).

45. See Dwares v. City of N.Y., 985 F.2d 94, 96-97 (2d Cir. 1993) (recognizing this theory in a case where skinheads attacked flag-burning protesters after receiving verbal license from police).

46. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 908 (3d Cir. 1997) (noting that the harm must be foreseeable and not remote for state-created danger to be applicable); Kneipp v. Tedder, 95 F.3d 1199, 1201, 1208 (3d Cir. 1996) (emphasizing the forseeability of harm to an intoxicated person left unescorted by police and adopting "the `state-created danger' theory as a viable mechanism for establishing a constitutional violation under 42 U.S.C. 1983").

47. See Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998) (reviewing a case in which undercover officers and their family members were placed in "special danger" from a private actor by the city's proposed release of personal information about officers); Nishiyama v. Dickson County, Tenn., 814 F.2d 277, 278 (6th Cir. 1987) (examining a situation in which the state provided a patrol car to an unsupervised inmate who used it to stop a vehicle and murder its occupant).

48. See Ross v. U.S., 910 F.2d 1422, 1429-34 (7th Cir. 1990) (holding that a county law that allowed officials to prevent citizens from rescuing a drowning boy violated the state-created danger theory); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982)(becoming the first case to employ the snake-pit language when recognizing the state-created danger theory); White v. Rochford, 592 F.2d 381 (7th Cir. 1979) (holding that "an individual's right to be free from unjustified intrusions upon physical and emotional well-being is protected" by the state-created danger theory and that the unjustified and arbitrary refusal of police to lend aid to children endangered by the performance of official duty violates due process rights when injury results); cf Reed v. Gardner, 986 F.2d 1122, 1125 (7th Cir. 1993) (accepting the existence of the state-created danger theory but finding no application of the theory when an intoxicated passenger operates a vehicle after police arrested the sober driver). 

49. See Greer v. Shoop, 141 F.3d 824, 828-29 (8th Cir. 1998) (Beam, J. concurring) (citing Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992)) (finding that the circuit had affirmed the state-created danger theory); Carlton v. Cleburne County, 93 F.3d 505, 508 (8th Cir. 1996) ("Cases where the duty to protect has arisen have consistently involved affirmative conduct by government officials directly responsible for placing particular individuals in a position of danger."); Davis v. Fulton County, 90 F.3d 1346, 1351 (8th Cir. 1996) (stating that the theory exists when the state places an individual in danger); Doe v. Wright, 82 F.3d 265, 268 (8th Cir. 1996) (affirming the state-created danger theory).

50. See Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989) (finding that a trooper created danger by impounding a car and leaving the female passenger in a high crime area at 2:30 a.m.). See also Huffinan v. County of Los Angeles, 147 F.3d 1054, 1060 (9th Cir. 1998) (distinguishing between state actions and private actions); L.W. v. Grubbs, 974 F.2d 119, 121-22 (9th Cir. 1992) (finding that a 1983 claim is proper when state officials knowingly assigned a violent, habitual offender to work alone with a female prison employee and failed to warn the employee of the risk, resulting in battery, kidnap, and rape).

51. See Seamons v. Snow, 84 F.3d 1226, 1235-36 (10th Cir. 1996) (citing Uhlrig v. Harder, 64 F.3d 567 (10th Cir. 1995) (affirming the existence of the state-- created danger theory but finding it did not apply when the county could not have foreseen the disorderly actions of an off-duty deputy)).

52. See Cornelius v. Town of Highland Lake, 880 F.2d 348 (1I th Cir. 1989) (applying the state-created danger theory to a case involving the three-day abduction of a city employee by two violent prisoners allowed to participate in a min security road work crew). 

53. See Nathan Koppel, Cities Fear Suits if Court Recognizes State-Created Dangers, TEX. LAW., Dec. 13, 1999, at 1 (noting that a number of municipalities claim that recognizing the theory leads to a "flood" of cases).

54. Since mere negligence is insufficient to impose liability under 1983, the courts only impose liability if the defendant acted with "deliberate indifference" toward the dangers facing the victim See, e.g., Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201 (5th Cir. 1994) (approving of the theory yet finding that the standard of liability was not met); Wood, 879 F.2d at 599-600 (holding that state-- created danger theory applies when a state trooper placed the plaintiff in a position of danger with a disregard for her safety); Cornelius, 880 F.2d at 357 (explaining that the standard for state-created danger theory is "deliberate influence").

55. Since state-created danger relies on a violation of "substantive due process," any such complaint must meet the rigorous "shocks the conscience" requirement that is universally imposed when substantive due process is invoked. See, e.g., County of Sacramento v. Lewis, 523 U.S. 833 (1998) (explaining that a police chase ending in a fatal crash did not shock the conscience because the officer was not acting with tainted motives and was legitimately pursuing a suspect); Rochin v. California, 342 U.S. 165, 172 (1952) (characterizing the violent forcing of a suspect to vomit in order to "search" him as conduct that shocks the conscience and violates his right to substantive due process); Uhlrig, 64 F.3d at 573 (holding state actors may be liable under 1983 for private violence if the state assumed control over the plaintiff to trigger an affirmative duty of protection and the plaintiff can prove that the defendants acted in a "conscience shocking" manner); Grubbs, 974 F.2d at 121-22 (9th Cir. 1992) (finding that the failure to warn a female employee of a prisoner's violent nature before assigning him to work alone with her met the shocks the conscience standard). 

56. 961 F.2d 987, 991 (1st Cir. 1992) (finding that "[b]ecause the state did not commit Monahan involuntarily, it did not take the `affimative act' of restraining his liberty," which would lead to adoption of the theory).

57. 53 F.3d 423, 427 (Ist Cir. 1995) (stating that because the government had not restricted the suicide victim's liberty it was not under an affirmative duty to protect him and, therefore, there was no state-created danger).

58. 103 F.3d 1056 (Ist Cir. 1997). 59. Id. at 1064 (emphasis added). 

60. 115 F.3d 50 (lst Cir. 1997).

61. Id. at 51 (emphasis added) (citation omitted).

62. 908 F. Supp. 85 (D. Puerto Rico 1995), aff'd, 115 F.3d 50 (1st Cir. 1997). 

63. Id. at 90. 

64. See Rodriguez-Cirilo, 115 F.3d at 51 (finding instead that the district court's treatment of the causation issue identified a sufficient ground for granting summary judgment to the defendants).

65. 54 F.3d 1169 (4th Cir. 1995) (en banc).

66. These facts are taken from both Pinder decisions, Pinder v. Johnson, 33 F.3d 368 (4th Cir. 1994) [hereinafter Pinder 11, vacated en banc, 54 F.3d 1169 (4th Cir. 1995) [hereinafter Pinder II], and from the full description given in Melinda J. Seeds, Throwing out the Baby with the Bathwater: The Fourth Circuit Rejects a State Duty of Affirmative Protection in Pinder v. Johnson, 74 N.C. L. REV. 1720 (1996) (criticizing the Fourth Circuit's refusal to recognize an affirmative duty to protect on the basis of these facts).

67. See Pinder I, 33 F.3d at 371 (finding that Pinder had stated a cognizable constitutional claim against Officer Johnson because he enhanced the vulnerability of Pinder and her children). 

68. See Pinder 11, 54 F.3d at 1173 (holding that at the time of violation there was no clearly established law that would find a special relationship between the police and Pinder).

69. See id. at 1175.

70. See id. at 1179 (Widener, J., concurring), (Motz, J., concurring), and (Hamilton, J., Luttig, J., concurring) (holding only that the officer was entitled in this instance to official immunity).

71. Id. at 1179-82 (Russell, J., Ervin, J., Murnaghen, J., and Michael, J., dissenting) (emphasizing that the defendant had clearly created a dangerous situation and that a special relationship had been created).

72. Id. at 1175 ("The real `affirmative act' here was committed by [the criminal] not by Officer Johnson.").

73. Pinder 11, 54 F.3d at 1175. 74. Id. 

75. See Seeds, supra note 66, at 1758-59 (arguing that the Fourth Circuit erred in using an overly formal bright-line test of action versus inaction); Recent Case, Constitutional Law-Substantive Due Process-Fourth Circuit Holds Police Officer Not Liable for Exposing Children to Harm that Culminated in Their Murder, 109 HARV. L. REV. 524, 525 (1995) [hereinafter Recent Case] (arguing that the Fourth Circuit failed to apply the rule of DeShaney and was erroneous in holding that the officer had no duty to warn of a dangerous boyfriend's release).

76. See Recent Case, supra note 75, at 527-29 (discussing the general rule that a failure to protect is not a violation of due process, yet stating that DeShaney created exceptions to this rule that should have been applied to find liability in Pinder).

77. See, e.g., Randolph v. Cervantes, 130 F.3d 727, 731 (5th Cir. 1997) (stating that the state-created danger theory had not been adopted in the circuit); Piotrowski v. City of Houston, 51 F.3d 512, 517 (5th Cir. 1995) (deciding that the plaintiff had not appropriately stated a state-created danger claim); Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 531-32 (5th Cir. 1994) (discussing the status of state-created danger law in the Fifth Circuit); Salas v. Carpenter, 980 F.2d 299, 311 (5th Cir. 1992) (declaring that the law still seemed uncertain).

78. 980 F.2d 299, 306 (5th Cir. 1992) (holding that the sheriff did not violate the constitutional rights of a hostage by replacing the city hostage negotiation team with a county team).

79. 28 F.3d 521, 529 (5th Cir. 1994) (dismissing the claim by the estate of a child killed by random gunfire at a school dance against the school district and finding no special relationship between the school district and child).

80. 51 F.3d 512, 517 (5th Cir. 1995) (holding that the victim failed to allege facts implicating the city itself even if the court assumed the validity of the state-- created danger theory). 

81. 130 F.3d 727, 730-31 (5th Cir. 1997) (holding that no special relationship existed between the state and a resident of a state-run mental health outpatient living facility and that the state did not create a danger of self-inflicted injury).

82. 183 F.3d 389 n.6 (5th Cir. 1999) (holding state-created danger doctrine did not apply when a police officer failed to arrest a drunk driver because the officer did not have knowledge of an immediate danger facing the known victim).

83. Piotrowski v. City of Houston, No. 98-21032, 2001 WL 6712 (5th Cir. Jan. 17, 2001). 

84. Id. at *1

85. See id. at * 1 -*4. 86. Id. at *11.

87. Id. at *12.

88. See Piotrowski, 2000 WL 6712 at *12. 89. Id. at *3. 

90. See id. at* 12. 91. See id.

92. See, eg., Salinas v. City of Harlingen, No. B-98-162 (S.D. Tex. Mar. 21, 2000) (unpublished order); Rodriguez v. City of Harlingen, No. B-98-163 (S.D. Tex. Mar. 31, 2000) (unpublished order).

93. No. B-98-162 (S.D. Tex. Mar. 31, 2000). 94. Id. at 22.

95. Id. at 9 (citing DeShaney v. Wennebago County Dept of Soc. Servs., 489 U.S. 189, 201 (1989)).

96. Id. at 17-18.

97. See id. at 12-15. 

98. Salinas, No. B-98-162 at 15.

99. Compare Anderson v. Creighton, 483 U.S. 635, 644 (1987) (holding that a police officer who conducted a warrantless search may not be liable if he can establish as a matter of law that a reasonable officer may have believed that the search comported with the Fourth Amendment), with Malley v. Briggs, 475 U.S. 335, 344-45 (1986) (holding that a police officer is not entitled to absolute immunity if an affidavit submitted to procure a search warrant was objectively unreasonable in that it failed to establish facts necessary to justify issuing a warrant).

100. Compare Pinder v. Johnson [Pinder II], 54 F.3d 1169, 1175 (4th Cir. 1995) (en banc) (holding that representations of safety by police and the subsequent failure to incarcerate are not "affirmative actions" giving rise to civil liability), with Salinas v. City of Harlingen, No. B-98-162 at 28 (S.D. Tex. Mar. 31, 2000) (Order on Defendants' Motion to Dismiss) (refusing to dismiss state-created danger claim).

101. 483 U.S. 635 (1987). 

102. 42 U.S.C.A. 1983 (West 2000) (emphasis added).

103. See Monell v. Dept. of Social Serv., 436 U.S. 658, 665 n.11 (1978) (discussing the legislative history of the 1866 Civil Rights Act).

104. CONG. GLOBE, 42nd Cong., 1st Sess. 244 (1871). 105. See id. at 236, 244.

106. See id. at 374 (statement of Rep. Lowe).

107. See id. at 236, 244 (noting that local governments provide no protection to citizens from the Klan). 

108. Id. at 374 (1871) (statement of Rep. Lowe).

109. See 42 U.S.C. 1983 (West 2000) ("Every person who under color of any statute . . . subjects . . . any person . . . to deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress..."). 

110. 436 U.S. 658 (1978).

111. See id. at 665-69 (holding that local governments may not be sued solely for an injury inflicted by its employees or agents and that liability exists only when an execution of policy or custom causes the injury).

112. Id. at 692. 

113. 181 F.3d 657 (5th Cir. 1999). 114. See id. at 663.

115. Since the child was removed from the home by a governmental authority, it was a direct governmental deprivation. Neither the parties nor the court approached the case under a state-created theory. See generally id.

116. Id. at 672. 

117. Civil Rights Act of 1871, ch. 22, 17 Stat. 13 (1871).

118. See Monell v. Dept. of Soc. Serv., 436 U.S. 658, 692 (1978) (reviewing the legislative history of 1983 and explaining that "Congress did specifically provide that A's tort became B's liability, if B 'caused' A to subject another to a tort").

119. Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995) (en banc).

120. Id. at 1175 ("Promises do not create a special relationship-custody does"). See also discussion of the Pinder case, supra notes 66-74 and accompanying text. 121. See id. at 1176. ("[No . . . affirmative duty existed because neither Pinder nor her children were confined by the state.").

122. Piotrowski v. City of Houston, No. 98-21032, 2001 WL 6712 (5th Cir. Jan. 17, 2001).

123. See id. at* 12.

124. See S. REP. No. 1, 42nd Cong., 1st Sess.

125. See Monell v. Dept. of Social Serv., 436 U.S. 658, 692 (1978) (reviewing the history of the Ku Klux Klan Act of 1871).

126. See id. at 684-85. 127. Id. at 684.

128. Id. at 684. 

AUTHOR_AFFILIATION

* David Pruessner, J.D. Baylor Law School cum laude (1980), is a Texas attorney, certified in Civil Appellate Law by the Texas Board of Legal Specialization. He works at The Law Offices of David M. Pruessner in Dallas, which is the appellate counsel for Barbra Piotrowski of Piotrowski v. City of Houston, 51 F.3d 512 (5th Cir. 1995), discussed in this article.

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