Constitutional duty to protect
By Colin Jorgensen, RMF Litigation Counsel
One of the more common civil-rights claims we see in the jail context is a claim that jail officials failed to protect an inmate against harm, for example, from attack by a fellow inmate. Because jails and prisons are inherently dangerous and this type of claim is common, the contours of the claim are well established, and governing law is clear. Jail officials have a constitutional duty to protect inmates from violence at the hands of other inmates. But jail officials do not incur constitutional liability every time an inmate is attacked by another inmate — in fact, liability is the exception rather than the rule. To establish liability, an inmate must prove two elements: (1) incarceration under conditions posing a substantial risk of serious harm, and (2) that the prison official knew about and disregarded an excessive risk to the inmate’s health or safety. In practice, this typically means that a prison official must know that a particular inmate poses a serious risk to the safety of the attacked inmate, before the attack, and deliberately do nothing to protect the attacked inmate in advance of the attack. Properly trained jail/prison officials should take steps to keep inmates separated when officials have knowledge that the inmates are enemies. But if officials are not aware that inmates are enemies, officials cannot be held liable for failing to protect the inmates.
In the free world, plaintiffs sometimes attempt to bring civil-rights claims against law enforcement for failure to protect people against private acts of violence. For example, families of victims of the Feb. 14, 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Fla., have filed dozens of lawsuits against former Broward County Sheriff’s Deputy Scot Peterson, who was on duty and assigned to the school the day of the shooting, but failed to stop the attack or take action in an attempt to stop the attack. In June, Peterson also was charged with 11 criminal charges, including child neglect, negligence, and perjury. But the Parkland/Peterson cases are extraordinary and unusual, and should not be interpreted to mean that law enforcement is liable (civilly or criminally) for private acts of violence in the free world.
Although “failure to protect” claims by free-world citizens against law enforcement seem similar to “failure to protect” claims by inmates against prison officials, the governing legal standards are very different. Unlike in the prison context, outside of prison, government officials generally do not have a duty to protect people against private acts of violence — even if officials are aware of a risk of harm to citizens and fail to take action to protect against the risk.
The U.S. Supreme Court has explained that constitutional protections “generally confer no affirmative right to government aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 196 (1989). In DeShaney, Chief Justice William Rehnquist explained that a boy who was beaten and permanently injured by his father could not hold government officials liable for constitutional violations, even though the officials had received reliable complaints that the boy was being abused by his father, yet did not act to remove the boy from his father’s custody before the beating that permanently injured the boy.
The Supreme Court has reaffirmed this general rule in subsequent cases, including cases with tragic facts. For example, in Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005), a woman reported to police that her husband took their three children away from her in violation of a restraining order that required police to arrest him for this sort of violation. The woman reported the abduction to police repeatedly and begged police to act. After hours of phone calls, she went to the police station and continued to request assistance, to no avail. Late in the night, her husband arrived at the police station and opened fire with a gun he had purchased earlier that evening, and was killed when police returned fire. The bodies of all three children were found in his truck in the parking lot of the police station. While acknowledging the “horrible facts” of the case (Castle Rock, 545 U.S. at 751), the Court held that Ms. Gonzales “did not, for purposes of the Due Process Clause, have a property interest in police enforcement of the restraining order against her husband.” Castle Rock, 545 U.S. at 768.
Other courts, including the Arkansas Supreme Court, have followed suit and held that the constitution does not generally require law enforcement to protect citizens from private violence. In Repking v. Lokey, 2010 Ark. 356, 377 S.W.3d 211, a woman had multiple protective orders against her husband and was living at a battered women’s shelter in Fort Smith. She was alerted that her husband was attempting to remove one of their children from school. At the school, she met with a police officer who confirmed that her husband had left the school without taking the child. She left the school to return to the shelter with the police officer following her in his vehicle. After he determined that she was not being followed by her husband, the officer took a different route and did not follow her all the way to the shelter. At an intersection, the woman’s husband spotted her and rammed her vehicle with his vehicle, walked to her vehicle and began beating her, returned to his car and got a knife, and used the knife to stab her to death in her car. Citing DeShaney and Castle Rock, the Arkansas Supreme Court explained that individuals do not have a constitutional right to have a person arrested, so the officer could not be held liable for failing to arrest the husband, and the officer “was under no affirmative duty to aid or protect” the woman “from a private act of violence” under the constitution.
There is an exception to the general rule that the government has no constitutional duty to render aid in the free world. Sometimes called the “special-relationship exception” and sometimes called the “state-created-danger exception,” the exception basically holds that there is a constitutionally enforceable duty to protect when a government official affirmatively places an “individual in a position of danger that [the person] would not otherwise have faced.” Repking, 2010 Ark. 356, at 9, 377 S.W.3d at 218. A government official can be liable for private acts of violence if the government official has taken action to assume a special custodial relationship with the perpetrator or to place potential victims in danger, and thereby affirmatively created a duty to protect that would not otherwise exist. For example, in Sherpherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998), the court permitted a constitutional claim against government officials arising from a murder and other violent acts committed by an inmate at a private medical clinic because government officials transported the inmate to the private medical clinic but failed to take precautions to prevent the inmate from committing violent acts against potential victims at the private medical clinic, though the officials knew the inmate was extremely violent.
In conclusion, the general rule that government officials are not constitutionally required to protect citizens from private violence (outside the jail and prison context) may seem harsh — especially in light of some of the tragic facts of the seminal cases — but it would be unfair to hold law enforcement liable for private acts of violence just because violence might have been prevented with the benefit of 20/20 hindsight. Of course, regardless of whether the courts allow constitutional claims against law enforcement for failure to protect or not, and regardless of whether the actions of law enforcement contribute to a risk of harm to citizens or not, law enforcement officers are sworn to protect and serve the citizenry, and do so gracefully and effectively the vast majority of the time. In light of the exception to the general rule, deputy sheriffs and other law enforcement officials should be aware that a constitutional duty to protect may arise in custodial situations and other circumstances where the actions of law enforcement contribute to or create a risk of harm to citizens.