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Public Law and Legal Theory Series 2007-A-38

Some Thoughts on the State-Created Danger Doctrine: DeShaney is Still Wrong and Castle Rock is More of the Same Laura E. Oren UNIVERSITY OF HOUSTON LAW CENTER

This paper can be downloaded without charge at University of Houston Law Center’s Public Law & Legal Theory Series on the Social Science Research Network Web Site (http://www.ssrn.com )

SOME THOUGHTS ON THE STATE-CREATED DANGER DOCTRINE: DESHANEY IS STILL WRONG AND CASTLE ROCK IS MORE OF THE SAME by LAURA OREN* Last year I published an article called Safari Into the Snakepit: The StateCreated Danger Doctrine.1 It analyzed the development of the so-called “statecreated danger” exception to the general constitutional rule that the state has no affirmative duty to protect someone from injury at the hands of a third person. The no duty rule was famously stated in DeShaney v. Winnebago County Department of Social Services,2 in which the Court emphasized that the Constitution “conferr[ed] no affirmative right to governmental 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.”3 Specifically, “as a general matter, . . . a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”4 Recently, in Town of Castle Rock, Colorado v. Gonzales,5 the Court extended this attitude to a procedural (in addition to DeShaney’s substantive) due process claim. The DeShaney Court had conceded two possible exceptions to this no duty rule. First, there was the “special relationship” caveat.6 If the state deprived someone of their liberty so as to constitute “custody,” it assumed a corresponding affirmative responsibility to protect that person.7 The second concession is more significant for the purposes of the Safari article and for these thoughts. The Court implied that its ruling might be different if the State had done more than fail to act,

* Laura Oren is a Law Foundation Professor at the University of Houston Law Center. She earned a J.D. from the University of Houston Law Center in 1980, and a Ph.D. in History from Yale University in 1974. The University of Houston Law Foundation provided financial assistance for this project. As always, I am enriched by and grateful for the lively interchanges with my colleagues. In particular, my thanks to Professor Irene Rosenberg, Royce R. Till Professor of Law at the University of Houston Law Center; and Professor David Mazella (English) of the University of Houston. 1. Laura Oren, Safari Into the Snake Pit: The State-Created Danger Doctrine, 13 WM. & MARY BILL OF RTS. J. 1165 (2005). 2. 489 U.S. 189 (1989) (holding that there was no substantive due process right violated where state officials had returned a young child to his father, knew of the serious danger that the child faced, but failed to protect him from his father’s vicious abuse). 3. Id. at 196. 4. Id. at 197. 5. 545 U.S. 748 (2005) (holding that Colorado’s mandatory arrest statutes and a specific protective order issued thereunder did not create a constitutionally protected property interest). 6. 489 U.S. at 197. 7. Id. at 199-200.

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but also had played some part in creating the dangers that the victim faced or in making him more vulnerable to them.8 As water flows to the sea, so advocates and courts migrated to the so-called “state-created danger” doctrine.9 At first, this seemed a hopeful development. However, after an initial period in which all the circuits but one apparently embraced the doctrine,10 the situation looks far bleaker today. The more recent cases in the courts of appeals rarely survive dismissal, much less summary judgment, and sometimes even overturn significant jury verdicts.11 As an advocate,

8. Id. at 201. 9. This was a natural outcome of DeShaney’s narrow definition of “custody” and the “special relationship” exception. See generally Oren, Safari Into the Snakepit, supra note 1, at 1168. 10. Id. at 1173. 11. First Circuit: Ramos-Piñero v. Puerto Rico, 453 F.3d 48 (lst Cir. 2006) (denying claim of the family of a child who drowned after he fell into an open manhole and was swept away in flood waters); Enwonwu v. Gonzalez, 438 F.3d 22 (lst Cir. 2006) (denying habeas to an alien who served as a U.S. government informant and was going to be deported to Nigeria); Vélez-Díaz v. Vega-Irizarry, 421 F.3d 71 (lst Cir. 2005) (denying claim of an FBI informant and a cooperating witness who was killed by a gang member); Rivera v. Rhode Island, 402 F.3d 27 (1st Cir. 2005) (denying claim of a child who was killed when the state failed to place her in a witness protection program). Second Circuit: Aselton v. Town of East Harford, 890 A.2d 1250 (Conn. 2006) (denying claim of a police officer who was killed when he was dispatched to a wrongly-coded call). Third Circuit: Bright v. Westmoreland County, 443 F.3d 276 (3d Cir. 2006) (denying “emboldening” claim of a family whose child was shot by a man released on probation who had been confronted by police after he violated the terms of his probation, but not taken into custody); Kamara v. Attorney General, 420 F.3d 202 (3d Cir. 2005) (holding that the state-created danger exception has no place in the federal immigration jurisprudence). Fourth Circuit: Pack v. Associated Marine, 608 S.E.2d 134 (S.C. Ct. App. 2004) (denying claim for failure to show requisite deliberate indifference of plaintiff injured by a juvenile in a lock-up, who was lent out for labor and ran amok after sniffing gas). Fifth Circuit: (unclear whether recognizes the doctrine at all): Rios v. City of Del Rio, Tex., 444 F.3d 417 (5th Cir. 2006) (rejecting claim of a customs officer who was hit by a car driven by an escaped prisoner during a car chase). Sixth Circuit: Jones v. Reynolds, 438 F.3d 685 (6th Cir. 2006) (finding that officers did not create the danger when they failed to stop a drag race and even encouraged it, leading to death of a bystander); May v. Franklin County Comm’rs, 437 F.3d 579 (6th Cir. 2006) (rejecting claim based on ineffective 911 dispatch in which the police left the scene of three domestic violence calls without ascertaining whether the victim, who was later murdered by her boyfriend, was safe); McQueen v. Beecher Cmty. Schs., 433 F.3d 460 (6th Cir. 2006) (denying statecreated danger claim where teacher left children unsupervised and a young child killed another with a gun); Jackson v. Schultz, 429 F.3d 586 (6th Cir. 2005) (denying claim that decedent was endangered after he was put into an ambulance where he died because he did not receive medical treatment); Schroder v. City of Fort Thomas, 412 F.3d 724 (6th Cir. 2005) (rejecting claim based on city’s repeated failure to enforce speed limit, which resulted in a child being killed by a speeding car). Seventh Circuit: Waubanascum v. Shawano County, 416 F.3d 658 (7th Cir. 2005) (overturning jury verdict in favor of a foster child who was sexually abused by his foster parent due to oversights in the state’s criminal background check of the foster parent). Eighth Circuit: Hart v. City of Little Rock, 432 F.3d 801 (8th Cir. 2005) (reversing jury verdict in favor of police officers’ whose personal information was released, subjecting them to drug defendants’ vengeance, because the release did not shock the conscience); Forrester v. Bass, 397 F.3d 1047 (8th Cir. 2005) (finding no claim on behalf of two children under who were starved to death by their parents after the Department of Family Services declared the home was safe). Tenth Circuit: Graves v. Thomas, 450 F.3d 1215 (10th Cir. 2006) (rejecting claim because even if police officer intended to provoke teen into a high speed case, teen’s subsequent death in that chase did not shock the conscience); Moore v. Guthrie, 438 F.3d 1036 (10th Cir. 2006) (denying claim of police officer injured when a bullet flew up inside his riot helmet during a training exercise). But see Kennedy v. Ridgefield, 440 F.3d 1091 (9th Cir. 2006) (allowing claim where parents were shot and killed by a threatening neighbor after they reported that the neighbor had allegedly sexually abused their daughter).

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this is disheartening. As a scholar, this trend raises questions about whether the courts are performing the analysis properly. Finally, one has to wonder whether it is worth trying to make ever finer distinctions to satisfy hostile courts, instead of attacking the doctrine’s original premises head on. I. THE STATE-CREATED DANGER DOCTRINE TODAY: LIMITED SUCCESS In the recent cases, only two out of twenty-one appellate cases survived the state-created danger screening.12 In all the other appeals, the claims foundered on various elements of the tests previously elucidated by the courts, most often because the requisite “affirmative act” was missing.13 In 1996, the Third Circuit established this as its fourth and ultimate element in Kneipp v. Tedder,14 in which the police had stopped a woman who was drunk and staggering.15 They first separated her from her husband and then later released her to go on alone in the cold weather.16 She fell down an embankment and suffered permanent brain damage from exposure.17 The court was persuaded that these facts sufficiently established that the state actors had “used their authority as police officers to create a dangerous situation or to make [the victim] more vulnerable to danger [than if they] had they not intervened.”18 In the two recent cases where courts of appeals found that state actors engaged in affirmative acts which created or increased the danger for the victims, they relied on “emboldenment” or implicit condonation theories. In Kennedy v. City of

See also Pena v. DePrisco, 432 F.3d 98 (2d Cir. 2006) (recognizing state-created danger claim where many police officers knowingly allowed a drunk off-duty colleague to drive which resulted in the deaths of three pedestrians when the officer ran a red light and struck them in the crosswalk, although dismissing the individual defendants because the law was not clearly established at the time). See also Estate of Smith v. Marasco, 430 F.3d 140 (3d Cir. 2005) (Smith II) (reaching different result than Smith I on basis that reasonable officer should have realized that the Special Emergency Response Team operation would cause a disturbed man to run into the woods away from his medications). Cf. R.W. & C.W. v. Manzek, 888 A.2d 740 (Pa. 2005) (allowing a state law negligence action, but denying the statecreated danger claim, against the fund-raising entities who encouraged a child to go out selling candy, making her vulnerable to rape). 12. This represents a survival rate of about ten percent. The preliminary results in the district courts for the same period permitted about twenty-five percent of the cases to go forward. None of the state supreme court or state court of appeals cases found the doctrine to be satisfied. See Aselton, 890 A.2d 1250 (holding that the representatives of the estate of a police officer who was killed when he responded to a wrongly coded dispatch did not present an actionable claim based on the state-created danger doctrine); Manzek, 888 A.2d 740 (finding that the rape of child selling school candy was not due to any danger created by the school district); Pack v. Associated Marine, 608 S.E.2d 134 (stating that the statecreated danger doctrine was not supported in a case involving a farmer who was killed by a juvenile in a facility run by a charitable organization who became violent on labor release program). 13. See, e.g., Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996); Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993) (finding that police officers who conspired with skinheads to punish petitioner did violate the petitioner’s due process rights under the state-created danger doctrine). 14. 95 F.3d 1199 (3d Cir. 1996). 15. Id. at 1201. 16. Id. at 1202-03. 17. Id. at 1203. 18. Id. at 1209.

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Ridgefield,19 the Ninth Circuit let the case proceed,20 despite a strong dissenting opinion that favored a rehearing en banc.21 In Kennedy, a mother contacted the local police department after a teen neighbor, known for violent and unstable behavior, had allegedly molested her nine year old daughter.22 Kennedy requested that the teen not be contacted regarding the charges against him unless she was first notified for fear that he may be provoked to violent action.23 Nevertheless, a police officer notified the teen and his mother of the charges without first informing Kennedy.24 When Kennedy learned of the notification approximately fifteen minutes later, an officer assured her that there would be extra security patrols near the Kennedys’ house that night to keep a watch out for the boy.25 No extra patrols were provided, however, and that night the teen broke into the house and shot Mr. and Mrs. Kennedy, killing Mr. Kennedy and seriously injuring Mrs. Kennedy.26 The court held that the police department’s actions, if proven, affirmatively placed the Kennedys in a more dangerous position than they otherwise would have faced.27 The officer drove out to tell the alleged molester and his family about the charges, but without first warning the victim’s family, as was promised.28 By doing so, he “affirmatively created an actual, particularized danger [the victim] would not otherwise have faced.”29 The police further promised to patrol that night after they created the danger, thereby persuading the family to stay home in what they mistakenly believed was safety.30 This further police (in)action aggravated the dangerous situation that they had created. The other surviving case, Pena v. DiPresco,31 involved a number of police officers who implicitly condoned the heavy drinking of their off-duty fellow and then hindered the investigation into the incident in which his drunken driving killed three pedestrians. The all day drinking spree occurred in the company of several other officers in a precinct parking lot where off-duty officers congregated.32 The other officers present, including supervisory police sergeants, made no effort to stop the obviously intoxicated officer from speeding off to return to active duty.33 The court distinguished “active . . . [from] passive facilitation” finding that the emboldenment theory of Dwares v. City of New York34 was applicable to these

19. 439 F.3d 1055 (9th Cir. 2006), en banc reh’g denied, 440 F.3d 1091 (9th Cir. 2006). 20. 439 F.3d at 1067. 21. 439 F.3d at 1068 (Bybee J., dissenting). 22. Id. at 1057 (majority opinion). 23. Id. at 1058. 24. Id. 25. Id. 26. 439 F.3d at 1058. 27. Id. at 1063. 28. Id. at 1058. 29. Id. at 1063. 30. Id. at 1058. 31. Pena v. DePrisco, 432 F.3d 98 (2nd Cir. 2006). 32. Id. at 103. 33. Id. 34. 985 F.2d 94 (2nd Cir. 1993) (ruling that police officers who assured skinheads in advance that they would not intervene if they attacked political rally crossed the DeShaney line from passive to affirmative acts).

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facts.35 While a mere “failure to interfere when misconduct takes place, and no more, is not sufficient to amount to a state created danger,” the court held that where supervisory personnel encourage officers to drink alcohol on and off duty in the precinct parking lot and even participate in the habit, a reasonable juror could infer that the defendants “implicitly but affirmatively” condoned the dangercreating behavior.36 We conclude that when, as the plaintiffs allege, state officials communicate to a private person [the off-duty officer] that he or she will not be arrested, punished, or otherwise interfered with while engaging in misconduct that is likely to endanger the life, liberty or property of others, those officials can be held liable under section 1983 for injury caused by the misconduct under Dwares. This is so even though none of the defendants are alleged to have communicated the approval explicitly.37 II. THE “AFFIRMATIVE ACTS” CHALLENGE In contrast to these surviving claims, affirmative acts are generally scarce on the ground. An “emboldenment” allegation failed to save the day in Bright v. Westmoreland County,38 a case in which the facts resemble those in Kennedy: a man on probation for sexually abusing a 12-year-old girl was supposed to stay away from the child as a condition of his probation. Despite a complaint by the family that he was violating the terms of his probation, and a promise by the police that they would revoke his parole, the state actors delayed for ten weeks.39 Instead, they confronted him but failed to follow up with any other action.40 Subsequently, he shot and killed the young sister of the older girl in retaliation for the family’s efforts to prevent him from seeing his victim again.41 Over a vigorous dissent,42 the Third Circuit held that these facts failed to satisfy the “affirmative act” element of the test for state-created danger.43 We conclude that the state cannot ‘create danger’ giving rise to substantive due process liability by failing to more expeditiously seek someone’s detention, by expressing an intention to seek such detention without doing so, or by taking note of a probation violation without taking steps to promptly secure the revocation of the probationer’s probation.44

35. 36. 37. 38. 39. 40. 41. 42. 43. 44.

Pena, 432 at 110-11. Id. Id. 443 F.3d 276 (3d Cir. 2006). Id. at 279. Id. Id.. iId. at 288 (Nygaard, J., dissenting). Id. at 285. Bright, 443 F.3d at 283-84.

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According to the court, none of these inactions counted for the state-created danger doctrine. The final claim of “emboldenment,” moreover, also failed to allege the requisite affirmative act.45 That is because the Third Circuit did not believe that the police confrontation with the perpetrator, which occurred ten weeks before he attacked the younger child, could be said to have “emboldened” him.46 Once “emboldenment” was eliminated, the rest of the lawsuit alleged a pure DeShaney claim, i.e., that the government stood by and did nothing. The lesson of DeShaney, however, was that this was not enough.47 It is hard to find a principled difference between the Kennedy and the Bright cases. One could argue that the distinction lies in a proximate cause problem, such as the Court once relied upon in Martinez v. California.48 That was a pre-DeShaney “special relationship” case in which a probationer killed his (unanticipated) victim months after his release.49 Dicta in that case suggested that a result more favorable to the plaintiff would be likely in a case with different facts that did not raise troublesome issues of proximate cause and predictability of the victim (special relationship).50 DeShaney essentially closed off that option, by ruling that “special relationships” required some form of “custody” in any case (while leaving open the state-created danger possibility).51 While the timing distinction exists between the state-created danger cases discussed above, it is still not clear why it should make the kind of difference it did in the two circuits. The Third Circuit did not make a proximate cause argument. Moreover, it was entirely predictable that the aroused criminal would take his ire out on the specific family that had issued the complaint and caused the confrontation with the police. However, without even analyzing such distinctions, the court merely insisted that the Bright facts lay on the inaction side of the DeShaney line. The emboldenment approach failed spectacularly in a Sixth Circuit case, Jones v. Reynolds.52 Over a dissent,53 the court found no affirmative act in the face of striking facts.54 A large group of bystanders had gathered to witness a drag race organized on a public street.55 One of the drivers lost control of his car and ploughed into the crowd, killing a female bystander.56 The startling part about this story is that police officers arrived before the race began and could have stopped it.57 In fact, they did more than just not act: they appear to have reassured the racers, who at first thought they had to disband because the police were there.58

45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58.

Id. at 284-85. Id. at 285. Id. 444 U.S. 277 (1980). Id. Id. at 285. DeShaney, 489 U.S. at 197-201. 438 F.3d 685 (6th Cir. 2006). Id. at 699 (Moore, J., dissenting). Id. at 691. Id. at 688. Id. at 689. Id. at 688-89. Jones, 438 F.3d at 688-89.

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When the crowd began to disburse, the state actors entered into the festival atmosphere and announced over the police car’s public address system that there was no need to stop the race because the officers had no intention of arresting anyone, and proceeded to play loud accompanying music.59 Despite all of this, the court held that the state actors had not placed the female victim at a risk of greater danger than she was in when they found her.60 Yet, as Judge Posner once said, in a case involving the removal of a foster child from her biological parents’ home to place her in successively more gruesome foster homes, “[t]he state, having saved a man from a lynch mob, cannot then lynch him, on the ground that he will be no worse off than if he had not been saved.”61 The court should have found that having saved the bystanders from the dangers of the illegal race, the police could not then reinstitute that same danger, all the while playing an accompaniment of raucous music. At the heart of the “state-created danger” exception to DeShaney’s no duty rule lies the distinction between mere passivity (which is constitutionally valid under our “charter of negative liberties”) and affirmative state action (which is constitutionally suspect). But as the debate in DeShaney itself, and the subsequent state-created danger cases illustrate, the line between action and inaction can often be in the eyes of the beholder.62 The courts’ seeming inability to assess facts from a common ground means that the core of the doctrine is uncertain in a way that raises serious questions about its ultimate usefulness, despite the approximately twenty-five percent of cases surviving in the district courts during the survey period.63

59. Id. 60. Id. at 696. For other decisions based on a finding of “no affirmative act,” see Rios v. City of Del Rio, 444 F.3d 417 (5th Cir. 2006) (finding that no affirmative act was committed by state actors when the plaintiff was injured by a police car that was being driven by an prisoner who was escaping custody); May v. Franklin County, 437 F.3d 579 (6th Cir. 2006) (holding that a police officer’s act of not forcing himself into the location of an alleged domestic dispute was not an affirmative act that lead to the victim’s murder); McQueen v. Beecher Community Schools, 433 F.3d 460 (6th Cir. 2006) (stating that the student victim of an elementary school shooting was not placed in greater danger based on the teacher’s act of leaving the students alone in the classroom because the act was not affirmative); Jackson v. Schultz, 429 F.3d 586 (6th Cir. 2005) (holding that paramedics who placed a shooting victim in the back of their ambulance where he later died due to a lack of treatment did not place the decedent in a situation where he was placed at a greater risk of harm through an affirmative act done by them); VélezDíaz v. Vega-Irizarry, 421 F.3d 71 (lst Cir. 2005) (stating that FBI agents committed no affirmative act which led to the death of the decedent who was one of their informants); Schroder v. City of Fort Thomas, 412 F.3d 724 (6th Cir. 2005) (holding that city officials did not commit an affirmative act that lead to the death of plaintiff’s son by a speeding driver because they refused to lower the official speed limit on the street where the child was killed); Rivera v. Rhode Island, 402 F.3d 27 (lst Cir. 2005) (finding that a teenager murder witness who was ultimately killed by the person she was supposed to testify against was not placed at a greater risk for harm through any affirmative acts done by the defendants). 61. K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 849 (7th Cir. 1990). 62. See, e.g., DeShaney, 489 U.S. at 204-05 (Brennan, J., dissenting) (discussing the difference of perspective between the majority, which focused on what the state did not do, and the dissent’s view, which focused on the many actions that the state did take). 63. Results of search on file with the author.

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III. WHAT SHOCKS YOUR CONSCIENCE? State of mind is the second most important element of the state-created danger doctrine. In light of developments since DeShaney, many courts have demanded a showing of “deliberate indifference” that “shocks the conscience” in order to hold state actors responsible for the crimes of third parties. What “shocks the conscience,” however, appears to greatly depend on the circumstances of the case.64 It takes a lot to shock the conscience of some courts. The Eighth Circuit reversed a jury verdict awarding $225,000 to each individual police officer whose personal information was disclosed to drug defendants, thereby exposing them to retaliation.65 The court insisted that to be actionable, the release of the officers’ information not only had to create a serious risk, but the state actors also must have knowingly and consciously disregarded those risks.66 While “troubled by Little Rock’s practice of releasing its employees’ personnel files — especially those of police officers — without notice or any attempt to redact sensitive personal information,” the court “nevertheless” concluded that, at most, the facts showed a type of gross negligence.67 In a case eerily reminiscent of the DeShaney paradigm, the same circuit again avowed that its conscience was not shocked by a case that would shock the consciences of most people. In Forrester v. Bass,68 five young children were tortured and starved by their mother and her live-in partner.69 Twin eight-year-old boys died due to starvation and a lack of medical treatment for bacteria-infected, third-degree burns on their feet and legs that were inflicted upon them by their abusive mother.70 The Division of Family Services (DFS) received numerous complaints about the battery and starvation taking place in the home, but took no action.71 When finally prompted to make an assessment by a hotline call, the social worker noted that the twins were missing from the household and there was a discrepancy about where they were at the time of the social worker’s visit to the home.72 Despite these concerns, DFS proceeded to close out the assessment, ruling that the household was safe.73 Two months later, both boys were found dead of severe burns and starvation which their autopsies classified as homicides.74 Plaintiffs argued that “the filing of a false family assessment report and the failure to follow state protective procedures increased Larry’s and Gary’s vulnerability to continued abuse and deprived them and their family members of critical social services.”75 Based on the DeShaney doctrine, however, the court rejected plaintiffs’

64. See County of Sacramento v. Lewis, 523 U.S. 833, 850 (1998) (“Deliberate indifference that shocks [the conscience] in one environment may not be so patently egregious in another.”). 65. Hart v. City of Little Rock, 432 F.3d 801, 803 (8th Cir. 2005). 66. Id. at 807. 67. Id. at 808. 68. 397 F.3d 1047 (8th Cir. 2005). 69. Id. at 1049. 70. Id. at 1051. 71. Id. at 1050. 72. Id. 73. Id. at 1050-51. 74. Forrester, 397 F.3d at 1051. 75. Id. at 1058.

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claims that DFS was responsible for the twins’ deaths.76 It also stated that “[e]ven if Forrester could establish a sufficient causal connection between state action and the ensuing private acts of violence, his substantive due process claims still must fail because Forrester cannot demonstrate the requisite degree of offensive conduct or deliberate disregard.”77 The court excused the behavior of the DFS employees by agreeing that what happened to the children was egregious, but finding that the social workers merely made mistakes.78 In the court’s opinion, the social workers did not know that they were filing false reports of safety, and they did not deliberately disregard a known risk of harm to the children.79 The Eighth Circuit ended its opinion with this underlying conclusion, “State courts, and not federal courts, are the appropriate forum to enforce state child protection laws.”80 Perhaps this belief explains why it would be very difficult indeed to imagine circumstances in child protection cases that would shock the conscience of such a court. IV. SPECIAL CASES The special cases of state employees injured on the job and of police chases are more or less disposed of in Collins v. Harker Heights81 and County of Sacramento v. Lewis,82 respectively. In Collins, a city sanitation employee died of asphyxiation while on the job.83 The plaintiff’s claim was that the city violated decedent’s substantive due process rights by not providing him with proper training and safety equipment.84 The Supreme Court rejected these claims and held that the Due Process Clause does not “guarantee municipal employees a workplace that is free of unreasonable risks of harm.”85 The reasoning from Collins was later used to find that a police officer injured when a bullet flew up beneath his helmet during intensive training exercises did not have an actionable claim because the statecreated danger theory does not apply to what one state actor does to another.86 Moreover, reviewing the shocks-the-conscience prong “out of an abundance of caution,” the court determined that these facts did not make the grade.87 The latter statement is likely true based on the facts of Moore; however, the former can unfortunately be read from an extension of Collins.88 76. Id. at 1058-59. 77. Id. at 1058. 78. Id. at 1058-59. 79. Id. 80. Forrester, 397 F.3d at 1059. 81. 503 U.S. 115 (1992). 82. 523 U.S. 833 (1998). 83. Collins, 503 U.S. at 117. 84. Id. at 125-26. 85. Id. at 129. 86. Moore v. Guthrie, 438 F.3d 1036, 1038, 1042 (10th Cir. 2006). 87. Id. at 1040. 88. Public employees are losing on all fronts these days. The Supreme Court ruled recently that a whistle-blowing deputy district attorney who complained to his supervisors about inaccurate statements in the affidavit used to obtain a “critical” arrest warrant, was not protected from employment retaliation under the First Amendment. Garcetti v. Ceballos, 126 S. Ct. 1951, 1956-57 (2006). In a 5-4 decision (with new Chief Justice Roberts and Associate Justice Alito in the majority), the Court ruled that since Caballos voiced his complaint in “speech made pursuant to the employee’s official duties,” it was not

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Victims of wild police chases are also highly unlikely to succeed in their civil rights lawsuits. In Lewis, the Supreme Court applied the extreme standard of actual “purpose to harm”89 to reach its conclusion that no remedy was available to the estate of a teenager who was killed during a high speed police chase.90 The Tenth Circuit has surpassed even this requirement. 91 In Graves v. Thomas, the allegation was that the police officer involved in the high speed chase had previously threatened the teenager who was killed in that chase.92 The court reluctantly assumed that the officer, who had previously played cat and mouse with several area teenagers, who went so far as to allegedly tell the decedent and a friend that he was “going to get” them “one way or the other,” had deliberately and unnecessarily made the traffic stop with the motive of illegitimately harassing the decedent.93 Even under that assumption, however, the court’s conscience was not shocked by the high speed chase that led to the death of the teenager.94 The court distinguished the illicitly motivated traffic stop from the chase that ensued once the teen decided to flee. Some of the cases based on the state-created danger doctrine have posed a different kind of problem. In Enwonwu v. Gonzales95 and Kamara v. Attorney General,96 plaintiffs attempted to use the state-created danger doctrine in habeas actions, but the First and Third Circuits repulsed their claims.97 The First Circuit refused to halt the deportation of an alien who alleged that he would be in grave danger if repatriated. He had cooperated with the United States government by protected. Id. at 1955. Such speech was not a “matter of public concern” subject to the First Amendment’s strictures. Id. at 1961. This was a categorical decision that evaded the necessity to do any real Pickering balance. See Pickering v. Board of Educ. of Twp. High School Dist., 391 U.S. 563 (1968) (stating that a balance has to be reached between the important goal of protecting employees’ First Amendment free speech rights with the state’s interest in not having its employees use their particular knowledge to publicly criticize government actions). On the other hand, if the deputy District Attorney in Garcetti had complained as a citizen outside the course of his duties, his remarks about the potential police wrongdoing were likely to be matters of public concern. Garcetti, 126 S.Ct at 1957-58. This analysis puts the public employee in a difficult position. If they see something wrong and go outside the chain of the command, the ensuing “disruption” may render the speech unprotected under a Pickering balance approach. See, e.g., Belcher v. City of McAlester, 324 F.3d 1203, 1208-09 (10th Cir. 2003) (holding that although firefighter who contacted City Council members about proposed purchase of fire truck was speaking on a matter of public concern, his interest in speaking was outbalanced by fire department’s interest in maintaining harmony in the department because he could have used the less disruptive internal chain of command to raise concerns to his supervisors). In a non-published opinion from the Third Circuit, then-Judge Alito joined an opinion to similar effect. Persico v. City of Jersey City, 67 Fed. App’x. 669 (3d Cir. 2003) (holding that a police officer who was disciplined because he was ordered to bring his complaints through the chain of command but instead went outside of it does not have a First Amendment case). If the public employees speak as part of their regular duties, however, then Garcetti means that the speech is automatically not a matter of public concern and is therefore unprotected. 89. Lewis, 523 U.S. at 854. 90. Id. at 836-37. 91. 450 F.3d 1215, 1223 (10th Cir. 2006). 92. Id. at 1218-19. 93. Id. at 1221-22. 94. Id. at 1223. 95. 438 F.3d 22 (1st Cir. 2006). 96. 420 F.3d 202 (3rd Cir. 2005). 97. Kamara, 420 F.3d 202; Enwonwu, 438 F.3d 22.

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informing on members of the Nigerian military who had engaged in drug dealing and he feared retaliation in his own country.98 The court of appeals held that “as a matter of law, . . . a non-citizen trying to avoid removal from the country states no substantive due process claim on a state-created danger theory.”99 The Third Circuit flatly ruled in Kamara that “the state-created danger exception has no place in our immigration jurisprudence.”100 Separation of powers concerns lay behind these bald statements that the state-created danger doctrine does not apply in habeas cases. All in all, the fate of state-created danger cases has been disheartening. It is also difficult to be sanguine about the handful of district court cases that survived challenges during this period. Some involve injury to state employees101 or school children,102 both notoriously difficult contexts. The amount of exposure that government faces in its day-to-day operation of the schools militates against the willingness of courts to find constitutional liability. Police informants and witnesses have had some success, but prior cases demonstrate that their claims often do not survive in the end.103 Clearly, some claims survive that are based on allegations that the police stopped someone and then sent them on their way in an

98. Enwonwu, 438 F.3d at 24. 99. Id. at 25. 100. Kamara, 420 F.3d at 217. 101. See, e.g., Arnold v. Minner, No. 04-1346-JJF, 2005 WL 1501514, at *6 (D. Del. June 24, 2005) (finding that the determination of the level of responsibility of prison officials for the injuries sustained by a prison counselor held hostage for hours was a factual question that could not be disposed on in summary judgment proceedings). 102. See, e.g., Pascocciello v. Interboro Sch. Dist., No. 05-5039, 2006 WL 1284964, at *6 (E.D. Pa. May 8, 2005) (finding that a child who was sexually abused by an elementary school principal had a valid claim of state-created danger when the principal was a known pedophile but was allowed to continue teaching); Thompson v. Rochester Cmty. Schs., No. 03-74605, 2006 WL 932301, at *5 (E.D. Mich. April 11, 2006) (holding that that school officials’ failure to get medical attention for a student who collapsed at school could be a violation of the state-created danger doctrine); Brown v. Farrell, No. 3:05-CV-0421, 2006 WL 277091, at *4 (M.D. Pa. Feb. 3, 2006) (stating that the plaintiffs presented a state-created danger doctrine violation after a child was injured in a school vocational program); L.C. v. William Penn Sch. Dist., No. 05-997, 2005 WL 2396922, at *4 (E.D. Pa. Sept. 28, 2005) (stating that a student who was stalked and sexually assaulted by another student after a substitute teacher ordered her off the premises had an actionable state-created danger claim); Scruggs v. Meriden Bd. of Ed., No. 3:03CV2224(PCD), 2005 WL 2072312, at *6 (D. Conn. Aug. 26, 2005) (finding a valid state-created danger doctrine claim where a special education student committed suicide after he was not protected from repeated bullying and put in bully’s class); Gremo v. Karlin, 363 F. Supp.2d 771, 792 (E.D. Pa. 2005) (allowing the victim of a student on student beating to bring claims based on the state-created danger doctrine because the school was aware of the history of violence in the school and did little to stop it). 103. See, e.g., Estate of Rhoad v. East Vincent Township, No. 05-5875, 2006 WL 1071573, at *5 (E.D. Pa. April 18, 2006) (stating that the state-created danger doctrine would apply to a case where a drug addicted and emotionally unstable police informant was denied rehabilitation treatment prior to him committing suicide). Consider this in light of Rivera v. Rhode Island, 402 F.3d 27, 31 (1st Cir. 2005) (denying claim of child who was killed when the state failed to place her in a witness protection program) or Vélez-Díaz v. Vega-Irizarry, 421 F.3d 71, 81 (lst Cir. 2005) (denying claim of the family of an FBI informant and cooperating witness who was killed by a gang member because that is one of the risks inherent in being a cooperating witness and the government was not responsible for the risks that decedent placed upon himself).

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unsafe condition, and these cases also tend to rest on narrow distinctions between mere passivity and more affirmative acts.104 V. CASTLE ROCK: A ROSE BY ANY OTHER NAME? After this current snapshot, we are left with a disturbing question: is the statecreated danger doctrine (even presuming approval by the currently-constituted Court) worth it? In Town of Castle Rock v. Gonzalez,105 the Court overruled an effort made by the state legislature to avoid the strictures of DeShaney and the difficulties of proving the state-created danger doctrine by taking another tack.106 The State of Colorado had granted the plaintiff mother a Protective Order mandating that her ex-husband stay away from her and the children, except for carefully controlled times. In violation of the restraining order, he kidnapped the three girls from their home and rode around with them for several hours, at one point revealing to plaintiff that he had them in an amusement park.107 The mother’s increasingly frantic calls to the police for intervention went unheeded.108 Even though the Colorado statute was one of the new types of domestic violence protections that provided for mandatory arrest for its violation, and even though the mother had a specific order under the statute, the police simply ignored Ms. Gonzalez’s calls and refused to act.109 Ultimately, the father drove his truck to the police station where he engaged in suicide by police, opening fire and provoking a shootout which left him dead.110 The Castle Rock district court dismissed claims based on substantive due process (state-created danger) and procedural due process,111 but the Tenth Circuit, in a panel decision, and then on rehearing en banc, was willing to let the procedural claim go forward.112 The Supreme Court, however, ruled against that claim as well.113 Although only the procedural part of the case was taken to rehearing and to 104. See, e.g., Koulta v. City of Centerline, 427 F. Supp.2d 759, 765 (E.D.Mich. 2006) (allowing a state-created danger doctrine case to go forward where a women collided with and killed another driver after police ordered her to leave her ex-boyfriend’s home, although officers knew that she was drunk); Lockhart-Bembery v. Town of Wayland Police Dept., 404 F. Supp.2d 373, 379 (D. Mass. 2005) (stating that a legitimate claim for the jury to decide the merits of was presented by a motorist who was injured after she tried to move vehicle on police orders); Polcyn v. Martin, No. 6:03-2327-HFF, 2005 WL 2654259, at *9 (D.S.C. Oct. 17, 2005) (recognizing that the law was not clearly established in regards to a woman who was reported missing and who police found drunk in a truck and released into the custody of her boyfriend; she subsequently fell or jumped from truck). 105. 125 S. Ct. 2796. 106. Id. at 2801. 107. Id. 108. Id. at 2801-02 (the mother contacted the police on at least four separate times between the hours of 7:30 p.m. and 12:50 a.m. and was told each time to wait a little longer for her ex-husband to return the children). 109. Id. at 2805. 110. Id. at 2802. 111. Gonzalez v. City of Castle Rock, 307 F.3d 1258, 1260-61 (10th Cir. 2002). 112. Gonzalez v. City of Castle Rock, 366 F.3d 1093, 1096 (10th Cir. 2004) (en banc), rev’d, 125 S. Ct. 2796 (2005). 113. See Town of Castle Rock v. Gonzalez, 125 S. Ct. at 2810 (“We conclude, . . . that respondent did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband.”).

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the high Court, explicitly or implicitly a lot of the conversation was about DeShaney and the no affirmative duty paradigm.114 The conclusion that the Supreme Court reached was that: In light of today’s decision and that in DeShaney, the benefit that a third party may receive from having someone else arrested for a crime generally does not trigger protections under the Due Process Clause, neither in its procedural nor in its “substantive” manifestations. This result reflects our continuing reluctance to treat the Fourteenth Amendment as “a font of tort law”.115 These sentiments cannot help but call into question what the Supreme Court would do with a state-created danger claim squarely before it. The Court seems to have little affection for any kind of affirmative duty doctrine. Ironically, its Castle Rock procedural due process ruling may be more defensible than its DeShaney substantive holding. The dissent was right to emphasize that the mandatory language in the Colorado statute and the admonitory warnings in the specific protective order granted after a hearing, evinced a legislative intent to create a much greater interest than ordinary “shall” verbiage.116 The history of the state by state (and city by city) campaigns for mandatory arrests for violation of protective orders makes this very clear. Contrary to Castle Rock’s holding, Colorado state law did create protected property interests.117 In ruling to the contrary, Justice Scalia’s majority opinion deemed it unnecessary to go any further with its analysis.118 However, if it had, the nature of the challenge raised by the plaintiff would be a more troublesome question. Was she claiming that the Castle Rock police department arbitrarily and capriciously deprived her of her property interest? Alternatively, was she complaining that the police department failed to give her fair procedures and a hearing before depriving her of her protected interest? The former sounds like a substantive claim by

114. Gonzales, 307 F.3d at 1262-63; Gonzales, 366 F.3d at 1099 (en banc); Gonzales, 366 F.3d at 1126, 1129 (McConnell, J., dissenting), 1130-31 (O’Brien, J., dissenting). 115. Castle Rock, 125 S. Ct. at 2810 (footnotes and internal quotations omitted). 116. Id. at 2816-19 (Stevens, J., dissenting). 117. The Court’s refusal to believe that mandatory language was really meant to be mandatory, id. at 2805-06, smacks of the days when the state treated domestic violence as a purely private matter, not as a public concern. The further insistence that without an “ascertainable monetary value,” protective orders and their mandatory commands cannot possibly amount to “property,” id. at 2809, conveys that same old-fashioned overtone. Why is it that state law can create all kinds of property interests, but apparently is disabled from creating any for the benefit of victims of domestic violence? What is special about them? It reminds me of the (losing) argument in a Texas divorce/tort case, Twyman v. Twyman, 855 S.W.2d 619 (Tx. 1993), that the tort of Intentional Infliction of Emotional Distress was inappropriate in a marital context with its intensely private relationships. Id. at 626-29 (Phillips, C.J., concurring and dissenting). See also U.S. v. Morrison, 529 U.S. 598, 610 (2000) (Commerce Clause does not give Congress power to enact civil penalty provisions of the Violence Against Women Act, despite extensive legislative findings of that impact on the national economy because the Court holds that no economic activity is involved). 118. Castle Rock, 125 S. Ct. at 2810.

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contrast to the latter, which sounds procedural.119 The Court’s distaste for genuine substantive claims, however, unfortunately may cause plaintiffs and their advocates to conflate the two branches of Due Process. It would be better practice to scrupulously revisit the premises of the “no affirmative duty to protect” and statecreated danger doctrines. VI. JUDICIAL PRETENSE As an advocate, it is difficult to contemplate voluntarily yielding any reasonable exception to the constitutional bleakness of DeShaney’s rule. As a civil rights scholar, it is clear that a number of these cases are touched with the “abuse of power” that should be the hallmark of constitutional tort litigation.120 No one could maintain that government is a universal guarantor of people’s safety;121 nor is it desirable to turn every tort committed by a state actor through act or omission into a federal case.122 However, there are some injuries that implicate government power and should be remediable under the statute designed to protect us from constitutional violations. Quoting Judge Posner, 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.123

119. See Zinermon v. Burch, 494 U.S. 113, 125 (1990) (Substantively, “the [Due Process] clause incorporates many of the specific protections defined in the Bill of Rights” and it also “bars certain arbitrary, wrongful government actions, ‘regardless of the fairness of the procedures used to implement them.’”). By contrast, the procedural component of the Due Process Clause is a guarantee that the state will not deprive someone of protected interests without affording a fair procedure, which typically involves a pre-deprivation hearing of some kind. Id. at 125-26 (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property."). Procedural fairness requires a pre-deprivation hearing of some sort, unless it is not feasible. Id. at 127-28. See Laura Oren, Signing Into Heaven Zinermon v. Burch, Federal Rights, and State Remedies Thirty Years After Monroe v. Pape, 40 EMORY L.J. 1, 46-55 (1991) (discussion of distinction). 120. Cf. Castle Rock, 125 S. Ct. at 2810 ([Because we conclude that there is no property interest] “it is accordingly unnecessary to address the Court of Appeals’ determination . . . that the town’s custom or policy prevented the police from giving her due process when they deprived her of that alleged interest.”). By pretermitting the municipal liability issue, the Court also avoids another question: when a deprivation is inflicted pursuant to a custom and policy of the state, does that cloak it with a greater “abuse of power” (versus ordinary tort) character? Systemic failures to enforce protective orders carry overtones of “abuse of power” that may not always be present in a mishap by a single state actor. 121. DeShaney, 489 U.S. at 201. 122. Parratt v. Taylor, 451 U.S. 527, 544 (1981), overruled on other grounds; Daniels v. Williams, 474 U.S. 327 (1986) (finding that the Constitution should not be turned into a fount of tort law). 123. Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (holding that state officials did not have a duty under the 1871 civil rights statute to protect public from dangerous madman).

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The ever-narrower requirements to establish “affirmative action,” with the emphasis on “affirmative,” however, encourage just this kind of bright-line pretense. Starting in DeShaney itself, and threading through many of these special danger cases, courts opine how helpless they are in the face of admittedly tragic facts: Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua’s father.124 The dictates of the “law” prevent them from following their natural inclinations. In his dissent to the DeShaney majority, Justice Blackmun called this a “pretense” of being a “dispassionate oracle of the law, unmoved by ‘natural sympathy.’”125 In his view, this amounted to a “sterile formalism” that refused to recognize the degree to which the state intervened in the life of “poor Joshua” DeShaney in all kinds of ways.126 In my article on DeShaney, I argued that the Court achieved this distortion through ignoring the context of child protection, as well as the realities of the life of a four-year-old boy who, despite the Court’s individualistic and privatized language, could not possibly be seen as a free agent in a free society.127 The reality was that the state deliberately decriminalized family violence, especially child abuse.128 It thereby deprived children like Joshua DeShaney of the usual state interventions against violence in exchange for a promise that the child protection system would protect them.129 Joshua, however, got neither end of the bargain. His case was diverted from the criminal justice system to the child protection system. However, the latter failed to enforce its explicit agreements with his father (when they returned the child to his custody). Instead, it simply recorded the known injuries and dangers that the boy faced in great detail, until the last beating put him into a permanent coma.130

124. DeShaney, 489 U.S. at 202-03. See also Forrester v. Bass, 397 F.3d 1047, 1058 (8th Cir. 2005) (“The dreadful abuse suffered by the Bass children was egregious. But private parties, not state actors, inflicted the severe physical abuse that killed Larry and Gary.”); Jones v. Reynolds, 438 F.3d 685, 688 (6th Cir. 2006) (“When a claimant attempts to hold public officials responsible for private acts of violence under the Fourteenth Amendment, as this § 1983 action does, the depravity of the fact pattern often is enough to make ‘a devil sick of sin.’ Wilfred Owen, Dulce Et Decorum Est (1918). This case is no exception. And when a clamant argues that government officials failed to prevent private individuals from causing another injury, as this § 1983 action does, DeShaney . . . and its progeny rarely permit the claim to go forward. This case is no exception.”). 125. DeShaney, 489 U.S. at 213 (Blackmun, J., dissenting). 126. Id. 127. Laura Oren, The State’s Failure to Protect Children and Substantive Due Process: DeShaney in Context, 68 N. C. L. REV. 659, 696-700 (1990). 128. Id. at 707. 129. Id. at 700-17. 130. DeShaney, 489 U.S. at 209.

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Justice Blackmun likened the rigidity of the DeShaney majority to the “formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975).”131 On further consideration, the assertions of helplessness in the face of the law that start with DeShaney and thread through many of the special danger cases as well, do not merit the same understanding afforded to the antebellum jurists. Professor Cover wrote about judges with genuine conflicts. He analyzed jurists who faced “moral-formal” dilemmas in the slave cases they had to decide.132 The expressions of “natural sympathy” and helplessness before the law in DeShaney and the special danger cases, however, strike a very different note. There is no moral-formal conflict. Instead, (basing his response solely on my characterization of the nature of these remarks), a colleague who is an expert on rhetoric and cynicism has suggested that the particular dynamic you describe might nowadays be called something like a ‘false concession’ because the point is to appear as if you’ve conceded something important to your opponent, without actually altering your argument at all, or granting any force to your opponent’s argument. There seems to be an element of emotional manipulation of, and condescension toward, one’s audience, since you as the powerful person are hoping that your audience, moved by your appeal to their emotions, will not notice your failure to match the emotional concession with a more substantive concession.133 My colleague goes on to explain that this technique has the effect of “preserving one’s own self-image as a moral human being, without actually having to change one’s mind or behave in a moral way. As La Rouchefoucauld said, hypocrisy is the tribute that vice pays to virtue.”134 Having examined the path from DeShaney to the special danger cases, this description unfortunately strikes a chord. It resonates in a way that raises the question of whether the “exception” is actually worth it or whether it merely legitimizes the original misstep.

131. Id. at 212. 132. ROBERT COVER, JUSTICE ACCUSED: ANTI SLAVERY AND THE JUDICIAL PROCESS 5-6 (Yale University Press) (1975). Cover compared this stance to Captain Vere in Herman Melville’s BILLY BUDD, who in order to uphold the harsh but necessary law of the sea and the Mutiny Act had to hang a morally “innocent” sailor who had rebelled against inhumane treatment. Cover speculated that Melville’s father-in-law, Chief Justice Lemuel Shaw of the Massachusetts Supreme Court, was the model for Vere. Shaw was a “firm unbending man of stern integrity,” a strong antislavery man, who nonetheless, “came down hard for an unflinching application of the harsh and summary [fugitive slave] law.” Id. at 4-5. The judges who faced this dilemma operated on beliefs about positivism and law, from which they found it difficult to break away. Especially by the 1850s, these jurists also faced critics who advocated lawless opposition to principles that they held dear. The threat of lawlessness made it even more difficult for them to abandon formalism. Lemuel Shaw, who faced one of the clearest “moralformal” dilemmas, consequently rendered fugitive slave opinions that earned him the hatred of abolitionists, even while he personally abhorred slavery. Id. at 249. 133. E-mail from Mazella, (June 15, 2006) (on file with author). 134. Id.

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CONCLUSION The foregoing critique may leave an impression that needs to be corrected. This article is not meant to be an exercise in nihilism, as I remain committed to the possibility of genuine social change and to the usefulness of law, among other avenues, in that endeavor. As the inconsistencies and irrationalities in the special danger cases become more and more troublesome, they create dialectical contradictions that reveal the artificiality of the action/inaction line. In turn, that blurring of falsely bright lines may someday call into question the “no affirmative duty” rule in all its glory. A rule without a principled rationale may yield to a reexamination of the original purposes. Therefore, as disheartening as recent developments may be, this is not a call to despair and passivity. Advocates should continue to advocate and scholars should continue to analyze rigorously. Walking these by-ways, however, none of us should forget the main path: DeShaney is still wrong and Castle Rock is more of the same. It should not be conceded that DeShaney and the special danger cases rest on a generalized “right to government aid.” Nor is it true that they seek to constitutionalize every tortious omission by a state actor. Rather, they involve situations in which government and its authority is implicated.135 Rather than constituting ordinary negligence, the state actors’ alleged “inaction” is taken with deliberate indifference (which should not be required to conform to the exaggerated “shocks the conscience” standards recently applied).136 The distinctions in DeShaney and all too frequently also in the special danger cases promote an aggressive and outdated idea of a world neatly divided between the absolutely private and the clearly public spheres. In that world, there is a bright line between “inaction” and “action” (or “affirmative action”). The result, and perhaps the underlying goal, of these distinctions is to manage constitutional litigation in order to minimize it, an outcome that dishonors rather than serves constitutional values. Any small individual gains from the exception should not come at the expense of conceding the validity of the “no affirmative duty” rule.

135. See, e.g., Jones v. Reynolds, 438 F.3d 685 (6th Cir. 2006). Governmental authority was involved because the drag racers responded to the police as the source of power and therefore started to disband when the officers arrived. Therefore, when the police instead announced over their car’s loudspeaker, that the dangerous and illegal games could continue amidst the 150 spectators at risk, that so-called “inaction” is an abuse of government power. 136. See Oren, supra, note 127, at 721-28 (on “deliberate indifference”).