|DeShaney v. Winnebago County Department of Social Services
[ Rehnquist ]
[ Brennan ]
[ Blackmun ]
DeShaney v. Winnebago County Department of Social Services
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.
"The most that can be said of the state functionaries in this case," the Court today concludes, "is that they stood by and did nothing when suspicious circumstances dictated a more active role for them." Ante, this page. Because I believe that this description of respondents' conduct tells only part of the story, and that, accordingly, the Constitution itself "dictated a more active role" for respondents in the circumstances presented here, I cannot agree that respondents had no constitutional duty to help Joshua DeShaney.
It may well be, as the Court decides, ante at 194-197, that the Due Process Clause, as construed by our prior cases, creates no general right to basic governmental services. That, [p204] however, is not the question presented here; indeed, that question was not raised in the complaint, urged on appeal, presented in the petition for certiorari, or addressed in the briefs on the merits. No one, in short, has asked the Court to proclaim that, as a general matter, the Constitution safeguards positive as well as negative liberties.
This is more than a quibble over dicta; it is a point about perspective, having substantive ramifications. In a constitutional setting that distinguishes sharply between action and inaction, one's characterization of the misconduct alleged under § 1983 may effectively decide the case. Thus, by leading off with a discussion (and rejection) of the idea that the Constitution imposes on the States an affirmative duty to take basic care of their citizens, the Court foreshadows -- perhaps even preordains -- its conclusion that no duty existed even on the specific facts before us. This initial discussion establishes the baseline from which the Court assesses the DeShaneys' claim that, when a State has -- "by word and by deed," ante at 197 -- announced an intention to protect a certain class of citizens, and has before it facts that would trigger that protection under the applicable state law, the Constitution imposes upon the State an affirmative duty of protection.
The Court's baseline is the absence of positive rights in the Constitution and a concomitant suspicion of any claim that seems to depend on such rights. From this perspective, the DeShaneys' claim is first and foremost about inaction (the failure, here, of respondents to take steps to protect Joshua), and only tangentially about action (the establishment of a state program specifically designed to help children like Joshua). And from this perspective, holding these Wisconsin officials liable -- where the only difference between this case and one involving a general claim to protective services is Wisconsin's establishment and operation of a program to protect children -- would seem to punish an effort that we should seek to promote. [p205]
I would begin from the opposite direction. I would focus first on the action that Wisconsin has taken with respect to Joshua and children like him, rather than on the actions that the State failed to take. Such a method is not new to this Court. Both Estelle v. Gamble, 429 U.S. 97"]429 U.S. 97 (1976), and 429 U.S. 97 (1976), and Youngberg v. Romeo, 457 U.S. 307 (1982), began by emphasizing that the States had confined J. W. Gamble to prison and Nicholas Romeo to a psychiatric hospital. This initial action rendered these people helpless to help themselves or to seek help from persons unconnected to the government. See Estelle, supra, at 104 ("[I]t is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself"); Youngberg, supra, at 317 ("When a person is institutionalized -- and wholly dependent on the State -- it is conceded by petitioners that a duty to provide certain services and care does exist"). Cases from the lower courts also recognize that a State's actions can be decisive in assessing the constitutional significance of subsequent inaction. For these purposes, moreover, actual physical restraint is not the only state action that has been considered relevant. See, e.g., White v. Rochford, 592 F.2d 381 (CA7 1979) (police officers violated due process when, after arresting the guardian of three young children, they abandoned the children on a busy stretch of highway at night).
Because of the Court's initial fixation on the general principle that the Constitution does not establish positive rights, it is unable to appreciate our recognition in Estelle and Youngberg that this principle does not hold true in all circumstances. Thus, in the Court's view, Youngberg can be explained (and dismissed) in the following way:
In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the "deprivation of liberty" triggering the protections of the Due Process [p206] Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.
Ante at 200. This restatement of Youngberg's holding should come as a surprise when one recalls our explicit observation in that case that Romeo did not challenge his commitment to the hospital, but instead
argue[d] that he ha[d] a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that petitioners infringed these rights by failing to provide constitutionally required conditions of confinement.
457 U.S. at 315 (emphasis added). I do not mean to suggest that "the State's affirmative act of restraining the individual's freedom to act on his own behalf," ante at 200, was irrelevant in Youngberg; rather, I emphasize that this conduct would have led to no injury, and consequently no cause of action under § 1983, unless the State then had failed to take steps to protect Romeo from himself and from others. In addition, the Court's exclusive attention to state-imposed restraints of "the individual's freedom to act on his own behalf," ante at 200, suggests that it was the State that rendered Romeo unable to care for himself, whereas in fact -- with an I.Q. of between 8 and 10, and the mental capacity of an 18-month-old child, 457 U.S. at 309 -- he had been quite incapable of taking care of himself long before the State stepped into his life. Thus, the fact of hospitalization was critical in Youngberg not because it rendered Romeo helpless to help himself, but because it separated him from other sources of aid that, we held, the State was obligated to replace. Unlike the Court, therefore, I am unable to see in Youngberg a neat and decisive divide between action and inaction.
Moreover, to the Court, the only fact that seems to count as an "affirmative act of restraining the individual's freedom to act on his own behalf" is direct physical control. Ante at 200 (listing only "incarceration, institutionalization, [and] other similar restraint of personal liberty" in describing relevant "affirmative acts"). I would not, however, give Youngberg [p207] and Estelle such a stingy scope. I would recognize, as the Court apparently cannot, that "the State's knowledge of [an] individual's predicament [and] its expressions of intent to help him" can amount to a "limitation of his freedom to act on his own behalf" or to obtain help from others. Ante at 200. Thus, I would read Youngberg and Estelle to stand for the much more generous proposition that, if a State cuts off private sources of aid and then refuses aid itself, it cannot wash its hands of the harm that results from its inaction.
Youngberg and Estelle are not alone in sounding this theme. In striking down a filing fee as applied to divorce cases brought by indigents, see Boddie v. Connecticut, 401 U.S. 371 (1971), and in deciding that a local government could not entirely foreclose the opportunity to speak in a public forum, see, e.g., Schneider v. State, 308 U.S. 147 (1939); Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); United States v. Grace, 461 U.S. 171 (1983), we have acknowledged that a State's actions -- such as the monopolization of a particular path of relief -- may impose upon the State certain positive duties. Similarly, Shelley v. Kraemer, 334 U.S. 1 (1948), and Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), suggest that a State may be found complicit in an injury even if it did not create the situation that caused the harm.
Arising as they do from constitutional contexts different from the one involved here, cases like Boddie and Burton are instructive, rather than decisive, in the case before us. But they set a tone equally well established in precedent as, and contradictory to, the one the Court sets by situating the DeShaneys' complaint within the class of cases epitomized by the Court's decision in Harris v. McRae, 448 U.S. 297"]448 U.S. 297 (1980). The cases that I have cited tell us that 448 U.S. 297 (1980). The cases that I have cited tell us that Goldberg v. Kelly, 397 U.S. 254"]397 U.S. 254 (1970) (recognizing entitlement to welfare under state laws) can stand side by side with 397 U.S. 254 (1970) (recognizing entitlement to welfare under state laws) can stand side by side with Dandridge v. Williams, 397 U.S. 471, 484 (1970) (implicitly rejecting idea that welfare is a fundamental right), and that Goss v. [p208] Lopez, 419 U.S. 565, 573 (1975) (entitlement to public education under state law), is perfectly consistent with 397 U.S. 471, 484 (1970) (implicitly rejecting idea that welfare is a fundamental right), and that Goss v. [p208] Lopez, 419 U.S. 565, 573 (1975) (entitlement to public education under state law), is perfectly consistent with San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29-39 (1973) (no fundamental right to education). To put the point more directly, these cases signal that a State's prior actions may be decisive in analyzing the constitutional significance of its inaction. I thus would locate the DeShaneys' claims within the framework of cases like Youngberg and Estelle, and more generally, Boddie and Schneider, by considering the actions that Wisconsin took with respect to Joshua.
Wisconsin has established a child welfare system specifically designed to help children like Joshua. Wisconsin law places upon the local departments of social services such as respondent (DSS or Department) a duty to investigate reported instances of child abuse. See Wis.Stat. § 48.981(3) (1987-1988). While other governmental bodies and private persons are largely responsible for the reporting of possible cases of child abuse, see § 48.981(2), Wisconsin law channels all such reports to the local departments of social services for evaluation and, if necessary, further action. § 48.981(3). Even when it is the sheriff's office or police department that receives a report of suspected child abuse, that report is referred to local social services departments for action, see § 48.981(3)(a); the only exception to this occurs when the reporter fears for the child's immediate safety. § 48.981(3)(b). In this way, Wisconsin law invites -- indeed, directs -- citizens and other governmental entities to depend on local departments of social services such as respondent to protect children from abuse.
The specific facts before us bear out this view of Wisconsin's system of protecting children. Each time someone voiced a suspicion that Joshua was being abused, that information was relayed to the Department for investigation and possible action. When Randy DeShaney's second wife told the police that he had "hit the boy causing marks and [was] a prime case for child abuse," the police referred her [p209] complaint to DSS. Ante at 192. When, on three separate occasions, emergency room personnel noticed suspicious injuries on Joshua's body, they went to DSS with this information. Ante at 192-193. When neighbors informed the police that they had seen or heard Joshua's father or his father's lover beating or otherwise abusing Joshua, the police brought these reports to the attention of DSS. App. 144-145. And when respondent Kemmeter, through these reports and through her own observations in the course of nearly 20 visits to the DeShaney home, id. at 104, compiled growing evidence that Joshua was being abused, that information stayed within the Department -- chronicled by the social worker in detail that seems almost eerie in light of her failure to act upon it. (As to the extent of the social worker's involvement in, and knowledge of, Joshua's predicament, her reaction to the news of Joshua's last and most devastating injuries is illuminating: "I just knew the phone would ring some day and Joshua would be dead." 812 F.2d 298, 300 (CA7 1987).)
Even more telling than these examples is the Department's control over the decision whether to take steps to protect a particular child from suspected abuse. While many different people contributed information and advice to this decision, it was up to the people at DSS to make the ultimate decision (subject to the approval of the local government's corporation counsel) whether to disturb the family's current arrangements. App. 41, 58. When Joshua first appeared at a local hospital with injuries signaling physical abuse, for example, it was DSS that made the decision to take him into temporary custody for the purpose of studying his situation -- and it was DSS, acting in conjunction with the corporation counsel, that returned him to his father. Ante at 192. Unfortunately for Joshua DeShaney, the buck effectively stopped with the Department.
In these circumstances, a private citizen, or even a person working in a government agency other than DSS, would doubtless feel that her job was done as soon as she had reported [p210] her suspicions of child abuse to DSS. Through its child welfare program, in other words, the State of Wisconsin has relieved ordinary citizens and governmental bodies other than the Department of any sense of obligation to do anything more than report their suspicions of child abuse to DSS. If DSS ignores or dismisses these suspicions, no one will step in to fill the gap. Wisconsin's child protection program thus effectively confined Joshua DeShaney within the walls of Randy DeShaney's violent home until such time as DSS took action to remove him. Conceivably, then, children like Joshua are made worse off by the existence of this program when the persons and entities charged with carrying it out fail to do their jobs.
It simply belies reality, therefore, to contend that the State "stood by and did nothing" with respect to Joshua. Ante at 203. Through its child protection program, the State actively intervened in Joshua's life and, by virtue of this intervention, acquired ever more certain knowledge that Joshua was in grave danger. These circumstances, in my view, plant this case solidly within the tradition of cases like Youngberg and Estelle.
It will be meager comfort to Joshua and his mother to know that, if the State had "selectively den[ied] its protective services" to them because they were "disfavored minorities," ante at 197, n. 3, their § 1983 suit might have stood on sturdier ground. Because of the posture of this case, we do not know why respondents did not take steps to protect Joshua; the Court, however, tells us that their reason is irrelevant, so long as their inaction was not the product of invidious discrimination. Presumably, then, if respondents decided not to help Joshua because his name began with a "J," or because he was born in the spring, or because they did not care enough about him even to formulate an intent to discriminate against him based on an arbitrary reason, respondents would not be liable to the DeShaneys because they were not the ones who dealt the blows that destroyed Joshua's life. [p211]
I do not suggest that such irrationality was at work in this case; I emphasize only that we do not know whether or not it was. I would allow Joshua and his mother the opportunity to show that respondents' failure to help him arose, not out of the sound exercise of professional judgment that we recognized in Youngberg as sufficient to preclude liability, see 457 U.S. at 322-323, but from the kind of arbitrariness that we have in the past condemned. See, e.g., Daniels v. Williams, 474 U.S. 327, 331 (1986) (purpose of Due Process Clause was "to secure the individual from the arbitrary exercise of the powers of government" (citations omitted)); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937) (to sustain state action, the Court need only decide that it is not "arbitrary or capricious"); Euclid v. Ambler Realty Co., 272 U.S. 365, 389 (1926) (state action invalid where it "passes the bounds of reason and assumes the character of a merely arbitrary fiat," quoting Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 204 (1912)).
Youngberg's deference to a decisionmaker's professional judgment ensures that, once a caseworker has decided, on the basis of her professional training and experience, that one course of protection is preferable for a given child, or even that no special protection is required, she will not be found liable for the harm that follows. (In this way, Youngberg's vision of substantive due process serves a purpose similar to that served by adherence to procedural norms, namely, requiring that a state actor stop and think before she acts in a way that may lead to a loss of liberty.) Moreover, that the Due Process Clause is not violated by merely negligent conduct, see Daniels, supra, and Davidson v. Cannon, 474 U.S. 344 (1986), means that a social worker who simply makes a mistake of judgment under what are admittedly complex and difficult conditions will not find herself liable in damages under § 1983.
As the Court today reminds us,
Ante at 196, quoting Davidson, 474 U.S. at 348. My disagreement with the Court arises from its failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a State undertakes a vital duty and then ignores it. Today's opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent. Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully dissent.