Tuesday, March 22, 2005

And it's also "Poor Jennifer and Iris!"

How timely! In Rivera v. State of Rhode Island, No. 04-1568 (1st Cir. March 22, 2005) we are once more reminded that there is rarely a duty for the police to protect you from the actions of a non-state actor, certainly not a duty that is actionable under Title 42, U.S. Code, Section 1983, except in very, very rare circumstances. These rare circumstances do not include when the police promise to protect you if you agree to testify against someone in a murder trial, and then don't protect you despite repeated threats against your life and their knowledge of the threats and further promises to protect you, and you are thereafter murdered for your cooperation. As Judge Lynch so aptly puts it:
It would be inhumane not to feel a sense of outrage over Jennifer's death, or a sense of deep sympathy for Iris Rivera who has lost her daughter. But our question is one of federal law, not one of sympathy.
It's all about the Fourteenth Amendment and substantive due process. Hmm! Explain that to Jennifer's mom. When people start realizing that there is no real duty to protect them, they'll stop cooperating, as little Jennifer might have --but for the empty promises of state actors. Then, perhaps, that federal law which Judge Lynch is obliged to uphold will change, if for no other reason than to accommodate the needs of law enforcement.

As Rivera goes on to state:
[...] "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989). That is because the purpose of the Due Process Clause is to protect the people from the state, not to ensure that the state protects them from each other. "The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security," id. at 195, because "[t]he Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes," id. at 196.
Elsewhere, the opinion states:
DeShaney directs that a state's affirmative constitutional duty to protect an individual from private violence arises when there is some deprivation of liberty by state actors. See DeShaney, 489 U.S. at 200 ("The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf."). The state's promises, whether false or merely unkept, did not deprive Jennifer of the liberty to act on her own behalf nor did the state force Jennifer, against her will, to become dependent on it. See Monahan, 961 F.2d at 993 (finding no constitutional liability when the state did not force the plaintiff to become dependent on the state). Moreover, the state did not take away Jennifer's power to decide whether or not to continue to agree to testify. Merely alleging state actions which render the individual more vulnerable to harm, under a theory of state created danger, cannot be used as an end run around DeShaney's core holding.
(footnote omitted)(emphasis added). Somewhere along the writing of this opinion the fact that Jennifer was only 15 years old seems to have lost importance. But then again, "Poor Joshua!" in DeShaney was also a child.

Of course, DeShaney is the very case upon which petioner in Town of Castle Rock, CO v. Gonzales, No. 04-278 relied upon in urging reversal of the Tenth Circuit at oral argument before the Supreme Court yesterday. See our posts here, and here. And see Crime & Federalism post on Rivera v. Rhode Island Illustrates Inadequacy of Current Affirmative Duty Doctrine, which also proposes a solution to current doctrine. See also this post at Appellate Law & Practice, and read the comments to the same.